UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 40-F
☒ Registration statement pursuant to Section 12 of the Securities Exchange Act of 1934
or
☐ Annual report pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of 1934
For the fiscal year ended: | Commission File Number: |
Quipt Home Medical Corp. (Exact name of Registrant as specified in its charter) |
||
British Columbia, Canada (Province or other jurisdiction of incorporation or organization) |
3841 (Primary Standard Industrial Classification Code Number) |
Not Applicable (I.R.S. Employer Identification Number) |
1019 Town Drive
Wilder, Kentucky 41076
(859) 878-2220
(Address and telephone number of Registrant’s principal executive offices)
CT Corporation System
1015 15th Street N.W., Suite 1000
Washington, DC 20005
(202) 572-3133
(Name, address (including zip code) and telephone number (including area code) of agent for service in the United States)
Securities registered or to be registered pursuant to Section 12(b) of the Act:
Title of each class | Trading Symbol(s) | Name of each exchange on which registered |
Common Shares | Qipt | The Nasdaq Capital Market |
Securities registered pursuant to Section 12(g) of the Act: None
Securities for which there is a reporting obligation pursuant to Section 15(d) of the Act: None
For annual reports, indicate by check mark the information filed with this Form:
¨ Annual information form | ¨ Audited annual financial statements |
Indicate the number of outstanding shares of each of the registrant’s classes of capital or common stock as of the close of the period covered by the annual report: N/A
Indicate by check mark whether the registrant: (1) has filed all reports required to be filed by Section 13 or 15(d) of the Exchange Act 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 has submitted electronically every Interactive Data File required to be submitted pursuant to Rule 405 of Regulation S-T (§232.405 of this chapter) during the preceding 12 months (or for such shorter period that the Registrant was required to submit such files). ¨ Yes ¨ No
Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 12b-2 of the Exchange Act.
Emerging growth company x
If an emerging growth company that prepares its financial statements in accordance with U.S. GAAP, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards† provided pursuant to Section 13(a) of the Exchange Act. ¨
† The term “new or revised financial accounting standard” refers to any update issued by the Financial Accounting Standards Board to its Accounting Standards Codification after April 5, 2012.
Indicate by check mark whether the registrant has filed a report on and attestation to its management’s assessment of the effectiveness of its internal control over financial reporting under Section 404(b) of the Sarbanes-Oxley Act (15 U.S.C. 7262(b)) by the registered public accounting firm that prepared or issued its audit report. ¨
EXPLANATORY NOTE
Quipt Home Medical Corp., formerly known as Protech Home Medical Corp. (the “Company” or the “Registrant”), is a Canadian issuer eligible to file its registration statement pursuant to Section 12 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), on Form 40-F pursuant to the multi-jurisdictional disclosure system of the Exchange Act. The Company is a “foreign private issuer” as defined in Rule 3b-4 under the Exchange Act. Equity securities of the Company are accordingly exempt from Sections 14(a), 14(b), 14(c), 14(f) and 16 of the Exchange Act pursuant to Rule 3a12-3.
2
FORWARD LOOKING STATEMENTS
This Registration Statement on Form 40-F, including the exhibits hereto (collectively, the “Form 40-F”) contains “forward-looking information” and “forward-looking statements” within the meaning of Canadian and United States securities laws (including the U.S. Private Securities Litigation Reform Act of 1995). Forward-looking statements relate to future events or future performance and reflect the expectations or beliefs of management of the Company regarding future events, and include, but are not limited to, statements with respect to: operating results; profitability; financial condition and resources; anticipated needs for working capital; liquidity; capital resources; capital expenditures; milestones; licensing milestones; information with respect to future growth and growth strategies; anticipated trends in our industry; our future financing plans; timelines; currency fluctuations; government regulation; unanticipated expenses; commercial disputes or claims; limitations on insurance coverage; and availability of cash flow to fund capital requirements.
Forward-looking information is based on the reasonable assumptions, estimates, analysis and opinions of the Company’s management made in light of its experience and its perception of trends, current conditions and expected developments, as well as other factors that management believes to be relevant and reasonable in the circumstances at the date that such statements are made, but which may prove to be incorrect. The Company believes that the assumptions and expectations reflected in such forward-looking information are reasonable.
In certain cases, forward-looking statements can be identified by the use of words such as “plans”, “expects” or “does not expect”, “is expected”, “budget”, “potential”, “scheduled”, “estimates”, “forecasts”, “intends”, “anticipates” or “does not anticipate”, or “believes”, or variations of such words and phrases or statements that certain actions, events or results “will”, “may”, “could”, “would”, “might” or “will be taken”, “occur” or “be achieved” or the negative of these terms or comparable terminology. By their very nature, forward-looking statements require the Company to make assumptions and are subject to known and unknown risks, uncertainties and other factors which may cause the actual results, performance or achievements of the Company to be materially different from any future results, performance or achievements expressed or implied by the forward-looking statements. A variety of material factors include, among others:
credit; market (including equity, commodity, foreign exchange and interest rate); liquidity; operational (including technology and infrastructure); reputational; insurance; strategic; regulatory; legal; environmental; capital adequacy; the general business and economic conditions in the regions in which the Company operates; the ability of the Company to execute on key priorities, including the successful completion of acquisitions, business retention, and strategic plans and to attract, develop and retain key executives; difficulty integrating newly acquired businesses; the ability to implement business strategies and pursue business opportunities; low profit market segments; disruptions in or attacks (including cyber-attacks) on the Company's information technology, internet, network access or other voice or data communications systems or services; the evolution of various types of fraud or other criminal behavior to which the Company is exposed; the failure of third parties to comply with their obligations to the Company or its affiliates; the impact of new and changes to, or application of, current laws and regulations; decline of reimbursement rates; dependence on few payors; possible new drug discoveries; a novel business model; dependence on key suppliers; granting of permits and licenses in a highly regulated business; the overall difficult litigation environment, including in the U.S.; increased competition; changes in foreign currency rates; loss of foreign private issuer status; increased funding costs and market volatility due to market illiquidity and competition for funding; the availability of funds and resources to pursue operations; critical accounting estimates and changes to accounting standards, policies, and methods used by the Company; the occurrence of natural and unnatural catastrophic events and claims resulting from such events; and risks related to COVID-19 including various recommendations, orders and measures of governmental authorities to try to limit the pandemic, including travel restrictions, border closures, non-essential business closures, quarantines, self-isolations, shelters-in-place and social distancing, disruptions to markets, economic activity, financing, supply chains and sales channels, and a deterioration of general economic conditions including a possible national or global recession; as well as those risk factors discussed or referred to in the Company’s disclosure documents filed with the securities regulatory authorities in certain provinces of Canada and available at www.sedar.com, as well as any other risk factors detailed from time to time in the Company’s annual information form filed as Exhibit 99.79 to this Form 40-F and the Company’s management’s discussion and analysis filed as Exhibit 99.80 to this Form 40-F.
Although the Company has attempted to identify important factors that could cause actual actions, events or results to differ materially from those described in forward-looking statements, there may be other factors that cause actions, events or results not to be as anticipated, estimated or intended. The Company provides no assurance that forward-looking statements will prove to be accurate, as actual results and future events could differ materially from those anticipated in such statements. The Company does not intend, and do not assume any obligation, to update any forward-looking statements, other than as required by applicable securities laws.
These forward-looking statements are based on the reasonable beliefs, expectations and opinions of management of the Company as of the date of the AIF and MD&A. Although the Company has attempted to identify important factors that could cause actual actions, events or results to differ materially from those contained in forward-looking information, there may be other factors that cause actions, events or results not to be as anticipated, estimated or intended. There is no assurance that such information will prove to be accurate, as actual results and future events could differ materially from those anticipated in such information. Accordingly, readers should not place undue reliance on forward-looking information or forward-looking statements. The Company does not intend, and does not assume any obligation, to update any forward-looking information or forward-looking statements, except as, and to the extent required by, applicable securities laws.
3
NOTE TO UNITED STATES READERS - DIFFERENCES IN UNITED STATES AND CANADIAN REPORTING PRACTICES
The Registrant is permitted, under a multijurisdictional disclosure system adopted by the United States, to prepare this report in accordance with Canadian disclosure requirements, which are different from those of the United States. The Registrant prepares its financial statements, which are filed with this Form 40-F in accordance with International Financial Reporting Standards as issued by the International Accounting Standards Board, and the audit is subject to Canadian auditing and auditor independence standards.
CURRENCY
Unless otherwise indicated, all dollar amounts in this Registration Statement on Form 40-F are in Canadian dollars. The exchange rate of Canadian dollars into United States dollars, on September 30, 2020, based upon the daily exchange rate as quoted by the Bank of Canada was U.S.$1.00 = Cdn$1.3339.
DOCUMENTS FILED PURSUANT TO GENERAL INSTRUCTIONS
In accordance with General Instruction B.(l) of Form 40-F, the Registrant hereby incorporates by reference Exhibit 99.1 through Exhibit 99.119, as set forth in the Exhibit Index attached hereto.
In accordance with General Instruction D.(9) of Form 40-F, the Registrant has filed the written consent of MNP LLP as Exhibit 99.119 attached hereto.
DESCRIPTION OF COMMON SHARES
The required disclosure is included under the heading “Capital Structure” in the Registrant’s Annual Information Form for the fiscal year ended September 30, 2020, attached hereto as Exhibit 99.79.
OFF-BALANCE SHEET TRANSACTIONS
The Registrant does not have any off-balance sheet transactions that have or are reasonably likely to have a current or future effect on the Registrant’s financial condition, changes in financial condition, revenues or expenses, results of operations, liquidity, capital expenditures or capital resources that are material to investors.
TAX MATTERS
Purchasing, holding, or disposing of the Company’s securities may have tax consequences under the laws of the United States and Canada that are not described in this Form 40-F.
4
TABULAR DISCLOSURE OF CONTRACTUAL OBLIGATIONS
The following table lists, as of September 30, 2020, information with respect to the Company’s known contractual obligations (in thousands):
Payments due by period | ||||||||||||||||||||
Total |
Less than 1 year |
1-3 years |
3-5 years |
More than 5 years |
||||||||||||||||
Contractual Obligations | (Cdn$000) | (Cdn$000) | (Cdn$000) | (Cdn$000) | (Cdn$000) | |||||||||||||||
Outstanding capital related commitments | $ | 17,245 | $ | 0 | $ | 17,245 | $ | 0 | $ | 0 | ||||||||||
Operating leases | 7,025 | 2,717 | 3,615 | 693 | 0 | |||||||||||||||
Long-term debt |
6,336 |
5,751 |
585 |
0 |
0 |
|||||||||||||||
Total | $ |
30,606 |
$ |
8,467 |
$ |
21,445 |
$ |
693 |
$ |
0 |
UNDERTAKING
The Registrant undertakes to make available, in person or by telephone, representatives to respond to inquiries made by the Securities and Exchange Commission (the “Commission”) staff, and to furnish promptly, when requested to do so by the Commission staff, information relating to: the securities registered pursuant to this Form 40-F; the securities in relation to which the obligation to file an annual report on Form 40-F arises; or transactions in said securities.
CORPORATE GOVERNANCE PRACTICES
The Registrant believes that its corporate governance practices are consistent, or are exempt from, in all material respects with the applicable requirements of the corporate governance guidelines established by the Canadian Securities Administrators, the applicable corporate governance rules of the TSX Venture Exchange and The Nasdaq Capital Market (the “Nasdaq Rules”) and the applicable rules and regulations of the Commission. As required by Nasdaq Stock Market Rule 5615(a)(3), the Company will disclose on its website, as of the listing date, each requirement of the Nasdaq Stock Market Rules that it does not follow and describe the home country practice followed in lieu of such requirements. Disclosure of the significant ways in which the Registrant’s corporate governance practices differ from those required of domestic companies under the Nasdaq Rules are available on the Registrant’s website at https://www.protechhomemedical.com/.
CONSENT TO SERVICE OF PROCESS
Concurrently with the filing of the Registration Statement on Form 40-F, the Registrant will file with the Commission a written irrevocable consent and power of attorney on Form F-X. Any change to the name or address of the Registrant’s agent for service shall be communicated promptly to the Commission by amendment to the Form F-X referencing the file number of the Registrant.
5
SIGNATURES
Pursuant to the requirements of the Exchange Act, the Registrant certifies that it meets all of the requirements for filing on Form 40-F and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized.
PROTECH HOME MEDICAL CORP. | ||
By: | /s/ Gregory Crawford | |
Name: Gregory Crawford | ||
Title: Chief Executive Officer |
Date: May 14, 2021
6
EXHIBIT INDEX
The following documents are being filed with the Commission as Exhibits to this Form 40-F:
7
8
9
Exhibit 99.1
Protech Home Medical Corp.
Consolidated Financial Statements
For the fiscal years ended
September 30, 2019 and 2018
(Expressed in Canadian dollars)
TABLE OF CONTENTS
Consolidated Statements of Financial Position | Page | 1 | ||||
Consolidated Statements of (Loss) Income and Other Comprehensive (Loss) Income | Page | 2 | ||||
Consolidated Statements of Changes in Shareholders’ Equity | Page | 3 | ||||
Consolidated Statements of Cash Flows | Page | 4 | ||||
Notes to the Consolidated Financial Statements | Pages | 5-40 |
Independent Auditor’s Report
To the Shareholders of Protech Home Medical Corp.:
Opinion
We have audited the consolidated financial statements of Protech Home Medical Corp. and its subsidiaries (the “Company”), which comprise the consolidated statements of financial position as at September 30, 2019 and 2018, and the consolidated statements of (loss) income and other comprehensive (loss) income, changes in shareholders’ equity and cash flows for the years then ended, and notes to the consolidated financial statements, including a summary of significant accounting policies.
In our opinion, the accompanying consolidated financial statements present fairly, in all material respects, the consolidated financial position of the Company as at September 30, 2019 and 2018, and its consolidated financial performance and its consolidated cash flows for the years then ended in accordance with International Financial Reporting Standards as issued by the International Accounting Standards Board.
Basis for Opinion
We conducted our audits in accordance with Canadian generally accepted auditing standards. Our responsibilities under those standards are further described in the Auditor’s Responsibilities for the Audit of the Consolidated Financial Statements section of our report. We are independent of the Company in accordance with the ethical requirements that are relevant to our audits of the consolidated financial statements in Canada, and we have fulfilled our other ethical responsibilities in accordance with these requirements. We believe that the audit evidence we have obtained is sufficient and appropriate to provide a basis for our opinion.
Other Information
Management is responsible for the other information. The other information comprises the Management’s Discussion and Analysis.
Our opinion on the consolidated financial statements does not cover the other information and we do not express any form of assurance conclusion thereon.
In connection with our audits of the consolidated financial statements, our responsibility is to read the other information and, in doing so, consider whether the other information is materially inconsistent with the consolidated financial statements or our knowledge obtained in the audits or otherwise appears to be materially misstated. We obtained Management’s Discussion and Analysis prior to the date of this auditor’s report. If, based on the work we have performed on this other information, we conclude that there is a material misstatement of this other information, we are required to report that fact. We have nothing to report in this regard.
Responsibilities of Management and those Charged with Governance for the Consolidated Financial Statements
Management is responsible for the preparation and fair presentation of the consolidated financial statements in accordance with International Financial Reporting Standards and for such internal control as management determines is necessary to enable the preparation of consolidated financial statements that are free from material misstatement, whether due to fraud or error.
In preparing the consolidated financial statements, management is responsible for assessing the Company’s ability to continue as a going concern, disclosing, as applicable, matters related to going concern and using the going concern basis of accounting unless management either intends to liquidate the Company or to cease operations, or has no realistic alternative but to do so.
Those charged with governance are responsible for overseeing the Company’s financial reporting process.
Auditor’s Responsibilities for the Audit of the Consolidated Financial Statements
Our objectives are to obtain reasonable assurance about whether the consolidated financial statements as a whole are free from material misstatement, whether due to fraud or error, and to issue an auditor's report that includes our opinion. Reasonable assurance is a high level of assurance but is not a guarantee that an audit conducted in accordance with Canadian generally accepted auditing standards will always detect a material misstatement when it exists. Misstatements can arise from fraud or error and are considered material if, individually or in the aggregate, they could reasonably be expected to influence the economic decisions of users taken on the basis of these consolidated financial statements.
As part of an audit in accordance with Canadian generally accepted auditing standards, we exercise professional judgment and maintain professional skepticism throughout the audit. We also:
· | Identify and assess the risks of material misstatement of the consolidated financial statements, whether due to fraud or error, design and perform audit procedures responsive to those risks, and obtain audit evidence that is sufficient and appropriate to provide a basis for our opinion. The risk of not detecting a material misstatement resulting from fraud is higher than for one resulting from error, as fraud may involve collusion, forgery, intentional omissions, misrepresentations, or the override of internal control. | |
· | Obtain an understanding of internal control relevant to the audit in order to design audit procedures that are appropriate in the circumstances, but not for the purpose of expressing an opinion on the effectiveness of the Company’s internal control. | |
· | Evaluate the appropriateness of accounting policies used and the reasonableness of accounting estimates and related disclosures made by management. | |
· | Conclude on the appropriateness of management's use of the going concern basis of accounting and, based on the audit evidence obtained, whether a material uncertainty exists related to events or conditions that may cast significant doubt on the entity’s ability to continue as a going concern. If we conclude that a material uncertainty exists, we are required to draw attention in our auditor's report to the related disclosures in the consolidated financial statements or, if such disclosures are inadequate, to modify our opinion. Our conclusions are based on the audit evidence obtained up to the date of our auditor's report. However, future events or conditions may cause the Company to cease to continue as a going concern. | |
· | Evaluate the overall presentation, structure and content of the consolidated financial statements, including the disclosures, and whether the consolidated financial statements represent the underlying transactions and events in a manner that achieves fair presentation | |
· | Obtain sufficient appropriate audit evidence regarding the financial information of the entities or business activities within the Company to express an opinion on the consolidated financial statements. We are responsible for the direction, supervision and performance of the group audit. We remain solely responsible for our audit opinion. |
We communicate with those charged with governance regarding, among other matters, the planned scope and timing of the audits and significant audit findings, including any significant deficiencies in internal control that we identify during our audits.
We also provide those charged with governance with a statement that we have complied with relevant ethical requirements regarding independence, and to communicate with them all relationships and other matters that may reasonably be thought to bear on our independence, and where applicable, related safeguards.
The engagement partner on the audit resulting in this independent auditor's report is Murad Mansoor Ali Bhimani.
|
|
Toronto, Ontario | Chartered Professional Accountants |
January 20, 2020 | Licensed Public Accountants |
MANAGEMENT'S RESPONSIBILITY FOR FINANCIAL REPORTING
The accompanying consolidated financial statements of Protech Home Medical Corp. and its subsidiaries (the “Company”) were prepared by management in accordance with International Financial Reporting Standards. Management acknowledges responsibility for the preparation and presentation of the consolidated financial statements, including responsibility for significant accounting judgments and estimates and the choice of accounting principles and methods that are appropriate to the Company’s circumstances. The significant accounting policies of the Company are summarized in Note 2 to the consolidated financial statements.
The Board of Directors is responsible for reviewing and approving the consolidated financial statements and for ensuring that management fulfills its financial reporting responsibilities. An Audit Committee assists the Board of Directors in fulfilling this responsibility. The Audit Committee reports its findings to the Board of Directors for its consideration in approving the consolidated financial statements for issuance to the shareholders.
Management recognizes its responsibility for conducting the Company’s affairs in compliance with established financial standards, and applicable laws and regulations, and for maintaining proper standards of conduct for its activities.
signed “Gregory Crawford” | signed “Hardik Mehta” | |
Chief Executive Officer | Chief Financial Officer | |
(Gregory Crawford) | (Hardik Mehta) |
PROTECH HOME MEDICAL CORP.
CONSOLIDATED STATEMENTS OF FINANCIAL POSITION
(Expressed in thousands of Canadian Dollars, except per share amounts)
Notes | As at September 30, 2019 | As at September 30, 2018 | ||||||||||
ASSETS | ||||||||||||
Current Assets | ||||||||||||
Cash | $ | 12,855 | $ | 4,331 | ||||||||
Accounts receivable, net | 4 | 12,390 | 12,522 | |||||||||
Inventory | 5 | 4,738 | 5,640 | |||||||||
Prepaid expenses and other current assets | 800 | 489 | ||||||||||
Total current assets | 30,783 | 22,982 | ||||||||||
Long-term assets | ||||||||||||
Property and equipment, net | 6 | 19,496 | 20,888 | |||||||||
Goodwill | 8 | 1,881 | 1,839 | |||||||||
Intangible assets, net | 8 | 2,911 | 3,275 | |||||||||
Deposits | 94 | 121 | ||||||||||
Total long-term assets | 24,382 | 26,123 | ||||||||||
TOTAL ASSETS | $ | 55,165 | $ | 49,105 | ||||||||
LIABILITIES | ||||||||||||
Current Liabilities | ||||||||||||
Trade payables | $ | 8,122 | $ | 6,292 | ||||||||
Accrued liabilities | 2,319 | 2,350 | ||||||||||
Current portion of finance lease obligations | 9 | 8,528 | 9,658 | |||||||||
Conversion liability warrants | 11 | - | 95 | |||||||||
Total current liabilities | 18,969 | 18,395 | ||||||||||
Long-Term Liabilities | ||||||||||||
Debentures | 10 | 13,966 | 7,193 | |||||||||
Long-term finance lease obligations | 9 | 3,081 | 4,247 | |||||||||
TOTAL LIABILITIES | 36,016 | 29,835 | ||||||||||
SHAREHOLDERS' EQUITY | ||||||||||||
Share capital | 12 | 198,133 | 193,951 | |||||||||
Contributed surplus | 21,453 | 19,041 | ||||||||||
Accumulated other comprehensive income | 13,003 | 12,332 | ||||||||||
Accumulated deficit | (213,440 | ) | (206,054 | ) | ||||||||
TOTAL SHAREHOLDERS' EQUITY | 19,149 | 19,270 | ||||||||||
TOTAL LIABILITIES AND SHAREHOLDERS' EQUITY | $ | 55,165 | $ | 49,105 | ||||||||
Commitments and Contingencies (Note 13) Subsequent Events (Note 20) |
APPROVED ON BEHALF OF THE BOARD:
signed “Donald Ewing” | signed “Mark Greenberg” |
The accompanying notes are an integral part of these consolidated financial statements
1
PROTECH HOME MEDICAL CORP.
CONSOLIDATED STATEMENTS OF (LOSS) INCOME AND OTHER COMPREHENSIVE (LOSS) INCOME
(Expressed in thousands of Canadian Dollars, except per share amounts)
Notes | Year ended September 30, 2019 | Year ended September 30, 2018 | ||||||||||
Revenue | ||||||||||||
Sale of medical equipment and supplies | $ | 35,227 | $ | 34,569 | ||||||||
Rental of medical equipment | 45,740 | 35,945 | ||||||||||
Total revenue | 80,967 | 70,514 | ||||||||||
Cost of revenue | 14 | 23,527 | 21,737 | |||||||||
Gross margin | 57,440 | 48,777 | ||||||||||
Selling, general and administrative | 14 | 42,582 | 38,401 | |||||||||
Depreciation | 6 | 13,366 | 14,475 | |||||||||
Amortization of intangible assets | 8 | 603 | 621 | |||||||||
Stock-based compensation | 12 | 2,063 | 2,128 | |||||||||
Impairment of goodwill | 8 | 531 | - | |||||||||
Loss from cyber incident | 13 | 1,012 | - | |||||||||
Acquisition related costs | 18 | 1,853 | - | |||||||||
Gain on disposal of property and equipment | (20 | ) | (273 | ) | ||||||||
Other expense | 77 | 15 | ||||||||||
Net loss from continuing operations before financing expenses, taxes, and discontinued operations | (4,627 | ) | (6,590 | ) | ||||||||
Financing expenses | ||||||||||||
Interest expense | 2,544 | 1,908 | ||||||||||
Transaction costs related to debenture issuance | 10 | 1,758 | - | |||||||||
Change in fair market value of debenture | 10 | (1,034 | ) | - | ||||||||
Loss on early extinguishment of debenture | 10 | 1,106 | - | |||||||||
Interest income | (34 | ) | (2 | ) | ||||||||
Gain on derivative financial liability | 11 | (95 | ) | (167 | ) | |||||||
Loss from continuing operations | (8,872 | ) | (8,329 | ) | ||||||||
Provision for income taxes | 15 | 269 | 130 | |||||||||
Net loss from continuing operations | (9,141 | ) | (8,459 | ) | ||||||||
Discontinued operations: | ||||||||||||
Income from operations of discontinued operations | 19 | 233 | 5,697 | |||||||||
Gain on sale of business | 19 | 1,522 | - | |||||||||
Gain on settlement of distribution liability | 19 | - | 21,509 | |||||||||
Income from discontinued operations | 1,755 | 27,206 | ||||||||||
Net (loss) income | $ | (7,386 | ) | $ | 18,747 | |||||||
Other comprehensive (loss) income | ||||||||||||
Cumulative translation adjustment | 671 | 843 | ||||||||||
Comprehensive (loss) income | $ | (6,715 | ) | $ | 19,590 | |||||||
Net (loss) income per share (Note 17) | ||||||||||||
Basic earnings per share - combined | $ | (0.09 | ) | $ | 0.25 | |||||||
Diluted earnings per share - combined | $ | (0.09 | ) | $ | 0.23 | |||||||
Weighted average number of common shares outstanding | : | |||||||||||
Basic | 82,860 | 75,417 | ||||||||||
Diluted | 82,860 | 80,744 |
The accompanying notes are an integral part of these consolidated financial statements
2
PROTECH HOME MEDICAL CORP.
CONSOLIDATED STATEMENTS OF CHANGES IN SHAREHOLDERS’ EQUITY
(Expressed in thousands of Canadian Dollars, except per share amounts)
Notes |
Number of
Shares (000’s) |
Capital
stock |
Contributed
surplus |
Accumulated
deficit |
Accumulated
comprehensive
|
Total
shareholders' equity |
||||||||||||||||||||||
Balance September 30, 2017 | 75,539 | $ | 193,459 | $ | 17,153 | $ | (131,511 | ) | $ | 9,924 | $ | 89,025 | ||||||||||||||||
Stock options exercised | 12 | 280 | 492 | (240 | ) | - | - | 252 | ||||||||||||||||||||
Cancellation and reissuance of common shares and options on
spin off |
12 | - | - | 459 | - | - | 459 | |||||||||||||||||||||
Distribution of spin off | 19 | - | - | - | (93,290 | ) | 1,565 | (91,725 | ) | |||||||||||||||||||
Stock based compensation | 12 | - | - | 1,669 | - | - | 1,669 | |||||||||||||||||||||
Net income | - | - | - | 18,747 | - | 18,747 | ||||||||||||||||||||||
Other comprehensive income | - | - | - | - | 843 | 843 | ||||||||||||||||||||||
Balance September 30, 2018 | 75,819 | $ | 193,951 | $ | 19,041 | $ | (206,054 | ) | $ | 12,332 | $ | 19,270 | ||||||||||||||||
Stock options exercised | 12 | 56 | 63 | (21 | ) | - | - | 42 | ||||||||||||||||||||
Proceeds from shares issued through private placement, net of
transaction costs of $343 |
12 | 7,483 | 4,146 | - | - | - | 4,146 | |||||||||||||||||||||
Broker options issued with private placement | - | (132 | ) | 132 | - | - | - | |||||||||||||||||||||
Warrants issued with debenture | 12 | - | - | 175 | - | - | 175 | |||||||||||||||||||||
Debentures converted to shares | 12 | 3 | 4 | - | - | - | 4 | |||||||||||||||||||||
Stock issued with acquisition | 7 | 228 | 164 | - | - | - | 164 | |||||||||||||||||||||
Stock-based compensation | 12 | - | - | 2,063 | - | - | 2,063 | |||||||||||||||||||||
Net loss | - | - | - | (7,386 | ) | - | (7,386 | ) | ||||||||||||||||||||
Other comprehensive income | - | - | - | - | 671 | 671 | ||||||||||||||||||||||
Balance September 30, 2019 | 83,589 | $ | 198,196 | $ | 21,390 | $ | (213,440 | ) | $ | 13,003 | $ | 19,149 |
The accompanying notes are an integral part of these consolidated financial statements
3
PROTECH HOME MEDICAL CORP.
CONSOLIDATED STATEMENTS OF CASH FLOWS
(Expressed in thousands of Canadian Dollars, except per share amounts)
Notes |
Year ended
September 30,
|
Year ended
September 30,
|
||||||||||
Operating activities | ||||||||||||
Net loss from continuing operations | $ | (9,141 | ) | $ | (8,459 | ) | ||||||
Net income from discontinued operations Adjustments to reconcile net loss from continuing operations to net cash provided by operating activities: |
1,755 | 27,206 | ||||||||||
Depreciation and amortization | 13,969 | 15,096 | ||||||||||
Depreciation on discontinued operations | 377 | 437 | ||||||||||
Accretion expense | 671 | 885 | ||||||||||
Loss on early extinguishment of debenture | 10 | 1,107 | - | |||||||||
Change in fair value of debenture | 10 | (1,034 | ) | - | ||||||||
Transaction costs related to issuance of debenture | 10 | 1,758 | - | |||||||||
Change in value of derivative financial liability | 11 | (95 | ) | (167 | ) | |||||||
Gain on disposal of property and equipment | (20 | ) | (273 | ) | ||||||||
Gain on sale of business | 19 | (1,522 | ) | (21,509 | ) | |||||||
Impairment of goodwill | 8 | 531 | - | |||||||||
Stock-based compensation | 12 | 2,063 | 2,128 | |||||||||
Bad debt expense | 4 | 5,686 | 5,226 | |||||||||
Bad debt expense – on discontinued operation Change in Working Capital: |
4 | 62 | - | |||||||||
Net increase in accounts receivable | (6,832 | ) | (9,044 | ) | ||||||||
Net decrease in inventory | 844 | 4,771 | ||||||||||
Net (increase) decrease in other current assets | (315 | ) | 336 | |||||||||
Net increase (decrease) in trade payables and accrued liabilities | 1,243 | (1,720 | ) | |||||||||
Net operating activities from assets and liabilities held for distribution | - | (1,160 | ) | |||||||||
Net cash flow provided by operating activities | 11,107 | 13,753 | ||||||||||
Investing activities | ||||||||||||
Purchase of property and equipment | 6 | (1,803 | ) | (685 | ) | |||||||
Cash proceeds from sale of property and equipment | 214 | 396 | ||||||||||
Cash paid for acquisitions | 7 | (526 | ) | (546 | ) | |||||||
Cash proceeds from sale of business | 19 | 4,454 | - | |||||||||
Net investing activities from assets and liabilities held for distribution | - | (100 | ) | |||||||||
Net cash flow provided by (used in) investing activities | 2,339 | (935 | ) | |||||||||
Financing activities | ||||||||||||
Repayment of finance lease obligation | 9 | (13,695 | ) | (10,888 | ) | |||||||
Payoff of old debenture | 10 | (8,625 | ) | - | ||||||||
Cash paid on early extinguishment of debt | 10 | (345 | ) | - | ||||||||
Net proceeds from issuance of common shares | 12 | 4,146 | - | |||||||||
Proceeds from options and warrants exercised | 12 | 42 | 252 | |||||||||
Gross proceeds from issuance of debentures | 15,000 | |||||||||||
Cash issuance cost on above debenture | 10 | (1,583 | ) | - | ||||||||
Net financing activities from assets and liabilities held for distribution | - | (2,946 | ) | |||||||||
Net cash flow used in financing activities | (5,060 | ) | (13, 582 | ) | ||||||||
Net increase (decrease) in cash | 8,386 | (764 | ) | |||||||||
Effect of exchange rate changes on cash held in foreign currencies | 138 | 1,704 | ||||||||||
Cash, beginning of year | 4,331 | 3,391 | ||||||||||
Cash, end of year | $ | 12,855 | $ | 4,331 |
The accompanying notes are an integral part of these consolidated financial statements
4
PROTECH HOME MEDICAL CORP.
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS
September 30, 2019 and 2018
(Tabular dollar amounts expressed in thousands of Canadian Dollars, except per share amounts)
1. | Nature of operations |
Protech Home Medical Corp. was incorporated under the Business Corporations Act (Alberta) on March 5, 1993. On December 30, 2013, the Company was continued into British Columbia, Canada. The address of the registered office is 5626 Larch St. Suite 202, Vancouver, BC V6M 4E1 (Canada). The head office is located at 1019 Town Drive, Wilder, Kentucky, United States. Protech Home Medical Corp. and its subsidiaries ("PHM" or the “Company”) main revenue source is in providing in-home monitoring equipment, supplies, and services to patients in the United States. The Company has also embarked on an acquisition strategy for additional revenue and profit growth.
The Company changed its name from Patient Home Monitoring Corp. to Protech Home Medical Corp. on April 4, 2018.
The Company’s shares are traded on the TSX Venture Exchange under the symbol PHM. The stock is also traded over the counter in the United States under the symbol PHMZF. Effective December 31, 2018, the Company consolidated its issued and outstanding common shares based on one post-consolidation common share for every five pre-consolidation common shares. Unless otherwise stated, all share, options, warrants and per-share amounts have been restated retrospectively to reflect this share consolidation.
On December 21, 2017, the Company executed Asset and Share Purchase Agreements as well as an Arrangement Agreement (the “Arrangement”) with Viemed Healthcare, Inc. (“Viemed”), then a wholly owned subsidiary of the Company, which was spun-off as a separate public Company which would own a 100% interest in Home Sleep Delivered, L.L.C. and Sleep Management, L.L.C.
On July 29, 2019, the Company sold all the assets of one of its subsidiaries, Patient Home Monitoring, Inc. (“PHM Inc.”).
The consolidated financial statements and the notes reflect the Viemed and PHM Inc. entities as discontinued operations. (see Note 19).
2. | Basis of presentation |
Basis of accounting
These consolidated financial statements have been prepared in accordance with International Financial Reporting Standards (“IFRS”) as issued by the International Accounting Standards Board (“IASB”).
The consolidated financial statements were authorized for issue by the Board of Directors on January 20, 2020.
The consolidated financial statements, which are presented in Canadian dollars, have been prepared under the historical cost convention, as modified by the measurement at fair values of certain financial assets and financial liabilities.
This is the first set of Company’s annual financial statements in which IFRS 9 Financial instruments and IFRS 15 Revenue from contracts with customers have been applied. Changes to significant accounting policies are described in Note 3.
Basis of measurement
These consolidated financial statements have been prepared on a going concern basis that assumes that the Company will continue its operations for the foreseeable future and be able to realize its assets and discharge its liabilities and commitments in the normal course of operation. If this assumption was not appropriate, adjustments to these consolidated financial statements may be necessary.
5 |
PROTECH HOME MEDICAL CORP.
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS
September 30, 2019 and 2018
(Tabular dollar amounts expressed in thousands of Canadian Dollars, except per share amounts)
3. | Summary of significant accounting policies |
Principles of consolidation
These consolidated financial statements include the accounts of the Company and its wholly owned subsidiaries. All intercompany transactions have been eliminated. The Company’s consolidated entities, their functional currencies and ownership percentages are as follows:
Black Bear Medical, Inc. | USD | 100% |
Black Bear Medical NH, Inc. | USD | 100% |
Black Bear Medical Group, Inc. | USD | 100% |
Protech Home Medical Corp. | USD | 100% |
Care Medical Atlanta, LLC | USD | 100% |
Care Medical of Athens, Inc. | USD | 100% |
Care Medical of Augusta, LLC | USD | 100% |
Care Medical of Gainesville, LLC | USD | 100% |
Care Medical Partners, LLC | USD | 100% |
Care Medical Savannah, LLC | USD | 100% |
Coastal Med-Tech Corp. | USD | 100% |
Central Oxygen, Inc. | USD | 100% |
Riverside Medical, Inc. | USD | 100% |
Legacy Oxygen and Home Care Equipment, LLC | USD | 100% |
Patient Aids, Inc. | USD | 100% |
Patient Home Monitoring, Inc. - discontinued | USD | 100% |
PHM Logistics Corporation | USD | 100% |
PHM Services, Inc. | USD | 100% |
Resource Medical, Inc. | USD | 100% |
Resource Medical Group Charleston, LLC | USD | 100% |
Resource Medical Group, LLC | USD | 100% |
West Home Healthcare, Inc. | USD | 100% |
Critical Accounting Estimates and Judgments
The preparation of financial statements in conformity with IFRS requires management to make certain estimates, judgments and assumptions concerning the future. The Company’s management reviews these estimates, judgments and assumptions on an ongoing basis, based on experience and other factors, including expectations of future events that are believed to be reasonable under the circumstances. Revisions to estimates are adjusted prospectively in the period in which the estimates are revised.
Estimates where management has made subjective judgments and where there is significant risk of material adjustments to assets and liabilities in future accounting periods include fair value measurements for financial instruments and share-based transactions, useful lives and impairment of non-financial assets (property and equipment and intangible assets), provision for expected credit losses, assessment of the Company’s ability to continue as a going concern, fair value measurements for assets and liabilities acquired in business acquisition and calculation of deferred taxes.
6 |
PROTECH HOME MEDICAL CORP.
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS
September 30, 2019 and 2018
(Tabular dollar amounts expressed in thousands of Canadian Dollars, except per share amounts)
3. |
Summary of significant accounting policies (continued)
Critical Accounting Estimates and Judgments (continued)
Critical accounting estimates |
The following are the key estimate and assumption uncertainties that have a significant risk of resulting in a material adjustment within the next financial year:
a) | Revenue recognition |
Revenues are billed to and collections are received from third-party insurers, co-insurance companies and patients. Because of continuing changes in the health care industry and third-party reimbursement, the consideration receivable from these insurance companies is variable as these billings can be challenged by the payer and therefore the amount billed by the Company is the best estimate of the amount that the Company believes is an allowable charge as determined by the payer (i.e. the insurance companies). The above estimate involves significant judgement including an analysis of past collections, historical modification rates and appeals results. Management regularly reviews the actual claims approved by the insurance companies, making adjustments as required.
b) | Valuation of accounts receivable |
The application of new ECL model represents a significant change from the incurred loss model under IAS 39, lifetime credit losses are expected to be recognized earlier.
The measurement of expected credit losses considers information about past events and current conditions. Forward looking macro-economic factors are incorporated into the risk parameters as relevant such as unemployment rate, inflation and interest rates. Significant judgements are made in order to incorporate forward-looking information into the estimation of ECL allowances which were not required under IAS 39 and may result in changes to the provision from period to period which may significantly affect our results of operations.
c) | Valuation of inventories |
The Company estimates that a certain portion of inventory purchased may be obsolete or non-saleable. The Company maintains a provision for obsolescence for these items. Valuation of the inventory was assessed at year-end, and all inventory items which more than two years are old and not supported by recent sales were provided for 50% in accordance with Company’s policy.
d) | Convertible debentures |
In accordance with the substance of the contractual arrangement, convertible debentures are compound financial instruments that are accounted for separately by their components: a financial liability and an equity instrument. The identification of convertible debenture components is based on interpretations of the substance of the contractual arrangement and therefore requires judgment from management. The separation of the components affects the initial recognition of the convertible debenture at issuance and the subsequent recognition of interest on the liability component. The determination of the fair value of the liability is also based on a number of assumptions, including contractual future cash flows, discount factors, and the presence of any derivative financial instruments.
e) | Impairment of property and equipment and intangibles |
Property plant and equipment and intangibles are reviewed for impairment whenever events or changes in circumstances indicate that their carrying amounts exceed their recoverable amounts. The assessment of the recoverable amount requires estimates and assumptions such as discount rates, exchange rates, future capital requirements and future operating performance.
7 |
PROTECH HOME MEDICAL CORP.
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS
September 30, 2019 and 2018
(Tabular dollar amounts expressed in thousands of Canadian Dollars, except per share amounts)
3. |
Summary of significant accounting policies (continued)
Critical Accounting Estimates and Judgments (continued)
Critical accounting estimates (continued) |
f) | Share based payments and warrants |
The amounts used to estimate fair values of stock options and warrants issued are based on estimates of future volatility of the Company’s share price, expected lives of the options and warrants, expected dividends to be paid by the Company and other relevant assumptions. By their nature, these estimates are subject to measurement uncertainty and the effect of changes in such estimates on the consolidated financial statements of future periods could be significant.
g) | Income taxes |
Significant judgment is required in determining the provision for future income taxes. There are many transactions and calculations undertaken during the ordinary course of business for which the ultimate tax determination is uncertain. The Company recognizes liabilities and contingencies for anticipated tax audit issues based on the Company’s current understanding of the tax law. For matters where it is probable that an adjustment will be made, the Company records its best estimate of the tax liability including the related interest and penalties in the current tax provision. Management believes they have adequately provided for the probable outcome of these matters; however; the final outcome may result in a materially different outcome than the amount included in the tax liabilities.
In addition, the Company recognizes deferred tax assets relating to tax losses carried forward to the extent there are sufficient taxable temporary differences (deferred tax liabilities) relating to the same taxation authority and the same taxable entity against which the unused tax losses can be utilized. Utilization of the tax losses depends on the ability of the taxable entity to satisfy certain tests at the time the losses are recouped.
h) | Useful lives of property and equipment |
The Company reviews the estimates for useful lives on an annual basis, or more frequently if events during the year indicate that a change may be required, with consideration given to technological obsolescence and other relevant business factors. A change in management’s estimate could impact depreciation/amortization expense and carrying value of property and equipment and intangible assets.
Critical Accounting Judgments
The following are the critical judgments, apart from those involving estimations, that have been made in the process of applying the Company's accounting policies and that have the most significant effect on the amounts recognized in the consolidated financial statements.
a) | Business combinations |
In accordance with IFRS 3 – Business Combination (“IFRS 3”), a transaction is recorded as a business combination if the significant assets, liabilities, or activities in addition to property and related mortgage debt assumed constitute a business. A business is defined as an integrated set of activities and assets, capable of being conducted and managed for the purpose of providing a return, lower costs, or other economic benefits. Where there are no such integrated activities, the transaction is treated as an asset acquisition. The estimation of the fair value of the assets and liabilities acquired in an acquisition is subject to judgement concerning estimating market values and predicting future events. These values are uncertain and can materially impact the carrying value of the acquired assets and the amount allocated to goodwill.
b) | Goodwill impairment |
Management has evaluated the recoverable amount for its cash generating unit and applied judgment in the discount rate and other underlying assumptions used in impairment analysis of goodwill. For details see Note 8.
8 |
PROTECH HOME MEDICAL CORP.
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS
September 30, 2019 and 2018
(Tabular dollar amounts expressed in thousands of Canadian Dollars, except per share amounts)
3. |
Summary of significant accounting policies (continued)
Critical Accounting Estimates and Judgments (continued)
Critical Accounting Judgments (continued) |
c) | Segment reporting |
IFRS 8 requires operating segments to be determined based on the Company’s internal reporting to the Chief Operating Decision Maker (‘CODM’). The CODM has been determined to be the Company’s Chief Executive Officer as he is primarily responsible for the allocation of resources and the assessment of performance. The CODM uses operating profit, as reviewed at monthly business review meetings, as the key measure of the Company’s results as it reflects the Company’s underlying performance for the period under evaluation. Operating profit is defined as profit on operations before interest, taxes, stock- based compensation, amortization of intangibles, impairment expenses and depreciation. Company recognized its business segments during 2016 and had three reportable operating segments: Viemed (Sleep Management, LLC and Home Sleep Delivered, LLC), PHM and Corporate cost center under IFRS 8. After the spin-off transaction occurred described in Note 19, the Company no longer includes the Viemed segment in its continuing operations. Consequently, the Company now has only one reportable operating segment.
d) | Valuation of derivative instruments |
Management has exercised judgment in the determination of the fair value of the derivative instruments. Estimating fair value for the derivatives requires determining the most appropriate valuation model, which is dependent on the terms and conditions of the instrument. This estimate also requires the judgment in the determination of the most appropriate inputs to the valuation model including the expected life of the option or warrant, volatility and dividend yield and making other assumptions about them.
e) | Identification of cash-generating unit (“CGU”) |
For the purposes of impairment testing, assets are grouped at the lowest levels of integrated assets that generate identifiable cash inflows that are largely independent of the cash inflows of other assets or groups of assets, termed as a CGU. The allocation of assets into a CGU requires significant judgment and interpretations with respect to the integration between assets, the existence of active markets, similar exposure to market risks, shared infrastructures and the way in which management monitors the operations.
Reporting currency
All values are in Canadian dollars ($) unless specifically indicated otherwise. United States dollars are indicated as US$.
Functional currency
The consolidated financial statements of the Company are presented in Canadian dollars, which is the parent Company’s presentation currency but which differs from its functional currency, the US Dollar, which was determined using management’s assumption that the primary economic environment in which it will derive its revenue and expenses incurred to generate those revenues is the United States.
Management has exercised judgment in selecting the functional currency of each of the entities that it consolidates based on the primary economic environment in which the entity operates and in reference to the various indicators including the currency that primarily influences or determines the selling prices of goods and services and the cost of production, including labor, material and other costs and the currency whose competitive forces and regulations mainly determine selling prices.
9 |
PROTECH HOME MEDICAL CORP.
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS
September 30, 2019 and 2018
(Tabular dollar amounts expressed in thousands of Canadian Dollars, except per share amounts)
3. | Summary of significant accounting policies (continued) |
New standards and interpretations adopted
The following new or amended accounting standards were adopted by the Company for the year ended September 30, 2019:
a) | IFRS 9 — Financial Instruments |
Effective October 1, 2018, the Company adopted IFRS 9, Financial Instruments. Adoption of this standard had no significant financial impact on the Company's consolidated financial statements and accordingly, the information presented for 2018 has not been restated. The Company has adopted the additional disclosures required under these standards.
IFRS 9, Financial Instruments replaced the multiple classification and measurement models in IAS 39, Financial Instruments: Recognition and Measurement, and set out requirements for recognizing and measuring financial assets, financial liabilities and some contracts to buy or sell non-financial items.
IFRS 9 contains three principal classification categories for financial assets: measured at amortized cost; fair value through other comprehensive income; and fair value through profit and loss. This classification of financial assets under IFRS 9 reflects the business model in which assets are managed and their contractual cash flow characteristics. IFRS 9 eliminated the previous IAS 39 categories for financial assets of held to maturity, loans and receivables and available for sale.
IFRS 9 largely retained the requirements in IAS 39 for the classification and measurement of financial liabilities.
Financial assets and financial liabilities are recognized when the Company becomes a party to the contractual provisions of the financial instrument. As required by IFRS 9, at the date of initial application, the Company classified its financial assets and financial liabilities at fair value.
The following table outlines the original measurement categories under IAS 39 and the new measurement categories under IFRS 9 for each class of the Company's financial assets and liabilities as at October 1, 2018:
10 |
PROTECH HOME MEDICAL CORP.
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS
September 30, 2019 and 2018
(Tabular dollar amounts expressed in thousands of Canadian Dollars, except per share amounts)
3. | Summary of significant accounting policies (continued) |
New standards and interpretations adopted (continued)
b) | IFRS 15, Revenue from Contracts with Customers |
The IASB replaced IAS 18, "Revenue" and IAS 11 Construction Contracts, in its entirety with IFRS 15, "Revenue from Contracts with Customers". The standard contains a single model which applies to contracts with customers and two approaches to recognizing revenue: at a point in time or over time. The model features a contract-based five-step analysis of transactions to determine whether, how much and when revenue is recognized as detailed below:
Step 1: Identify the contract with the customer
Step 2: Identify the performance obligations in the contract
Step 3: Determine the transaction price
Step 4: Allocate the transaction price to the performance obligations in the contracts
Step 5: Recognize revenue when (or as) the entity satisfies a performance obligation
New estimates and judgmental thresholds have been introduced, which may affect the amount and/or timing of revenue recognized. IFRS 15 is effective for annual periods beginning on or after January 1, 2018, with early application permitted. The Company adopted the new standard on October 1, 2018 using the modified retrospective method, without restatement of the comparative figures.
Company’s revenue mainly consists of the sale and rental of medical equipment. All revenue recorded is supported by prescriptions received from patients’ physicians, except for any direct sales made to the customers at retail outlets which are supported by sales orders, confirming the existence of arrangement. In case of equipment sale, revenue is recognized when the performance obligation to deliver the equipment is satisfied. Performance obligation is considered satisfied when control of the equipment is transferred to its customers at the point of shipment or delivery. In case of rental revenue, revenue is recorded over the period of time over which rental services are provided and benefits are consumed.
Revenues are billed to and collections are received from third-party insurers, co-insurance companies and patients. The amount billed is the best estimate of the amount that the Company believes is the allowable charge as determined by the payer (i.e. the insurance companies). These billings can be challenged by the payer and therefore consideration is variable and involves significant judgement to determine any pricing adjustments. Company uses historical modification rates and appeals results to determine these pricing adjustments. The Company recognizes revenue, net of estimated returns, if any.
The Company's rental arrangements are on a month to month basis and therefore short term in nature and do not include multiple deliverables.
The Company reviewed its existing accounting policies and practices to identify potential differences that would result from applying the guidance. The new guidance requires the Company to estimate variable consideration and include in revenue amounts for which it is probable that a significant revenue reversal will not occur. The Company’s assessment of that impact determined that the adoption of the guidance did not have a material impact on the timing or measurement of the Company’s revenue recognition.
11 |
PROTECH HOME MEDICAL CORP.
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS
September 30, 2019 and 2018
(Tabular dollar amounts expressed in thousands of Canadian Dollars, except per share amounts)
3. | Significant Accounting Policies (continued) |
Accounting standards issued but not yet effective
a) | IFRS 16, Leases |
IFRS 16 supersedes IAS 17 Leases, IFRIC 4, Determining whether an arrangement contains a lease, SIC-15 operating leases-Incentives and SIC-27 Evaluating the substance of transactions involving the legal form of a lease. It eliminates the distinction between operating and finance leases from the perspective of the lessee. All contracts that meet the definition of a lease will be recorded in the statement of financial position with a “right of use” asset and a corresponding liability. The asset is subsequently accounted for as property plant and equipment. Or investment property and the liability is unwound using the interest rate inherent in the lease.
The date of initial application of IFRS 16 is January 1, 2019. The Company has elected to adopt IFRS 16 using the modified retrospective approach. Under this approach, the Company will not restate its comparative figures but will recognize the cumulative effect of adopting IFRS 16 as an adjustment to opening retained earnings at the beginning of 2019 fiscal year.
The Company leases certain facilities and medical equipment. The non-cancelable period for these leases is between one to four years.
On transition to IFRS 16, the Company will elect to apply the practical expedient to grandfather the assessment of which transactions are leases and apply IFRS 16 only to the contracts that were previously identified as leases. Contracts that were not identified as leases under IAS 17 Leases will not be reassessed for whether a lease exists. The Company will elect to not recognize right of use assets and lease liabilities for leases that have a lease term of 12 months or less and for leases of low-value assets. The Company will also account for leases for which the lease term ends within 12 months of the end of the date of initial application as short term leases. Accordingly, there will be an increase to assets and liabilities, as the Company will be required to record a right of use asset and a corresponding lease liability on its statement of financial position. In addition, the Company expects a decrease to its rental costs, an increase to finance costs (due to accretion of the lease liability) and an increase to depreciation and amortization (due to amortization of right of use assets.
Foreign currency transactions
The functional currency of each of the Company’s wholly owned subsidiaries is measured using the currency of the primary economic environment in which the subsidiary operates. Each entity in the Company determines its own functional currency and items included in the financial statements of each entity are measured using that functional currency. Transactions in foreign currencies are initially recorded by the Company’s entities in their respective functional currency at rates prevailing at the date of the transaction. The functional currency of the Company and its subsidiaries is the US dollar and the reporting currency is the Canadian dollar.
Monetary items are translated at the functional currency spot rate as of the reporting date. Exchange differences from monetary items are recognized in profit or loss. Non-monetary items that are not carried at fair value are translated using the exchange rates at the date of the initial transaction. Non-monetary items measured at fair value in a foreign currency are translated using the exchange rates at the date when the fair value is determined. The assets and liabilities of foreign operations are translated into Canadian dollars at the rate of exchange prevailing at the reporting date and their statements of operations are translated at the average monthly rates of exchange. The exchange differences arising on the translation are recognized in other comprehensive income. On disposal of a foreign operation, the component of other comprehensive income relating to that foreign operation is recognized in the statement of (loss) income and comprehensive (loss) and income.
12 |
PROTECH HOME MEDICAL CORP.
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS
September 30, 2019 and 2018
(Tabular dollar amounts expressed in thousands of Canadian Dollars, except per share amounts)
3. | Significant Accounting Policies (continued) |
Business Combinations
Business combinations are accounted for using the acquisition method. For each business combination at the acquisition date, the Company recognizes at fair value all the identifiable assets acquired, the liabilities assumed, the non-controlling interest in the acquiree and the aggregate of the consideration transferred, including any contingent consideration to be transferred. When the fair value of the consideration transferred, and the amount recognized for non-controlling interest and the acquisition- date fair value of any existing equity interest in the acquiree exceeds the net amount of the identifiable assets acquired and the liabilities assumed measured at fair value (the “net identifiable assets”), the difference is treated as goodwill. After initial recognition, goodwill is measured at its initial cost from the acquisition date, less any accumulated impairment losses. Goodwill is reviewed at least annually for impairment or when there is an indication of potential impairment. If the fair value of the Company’s share of the net identifiable assets exceeds the sum calculated above, the difference (i.e. gain on a bargain purchase) is immediately recognized in profit or loss. If the business combination is achieved in stages, the acquisition date fair value of the previously held interest in the acquiree is re-measured to fair value as at the acquisition date through profit or loss.
Financial assets
Recognition and initial measurement
The Company recognizes financial assets when it becomes party to the contractual provisions of the instrument. Financial assets are measured initially at their fair value plus, in the case of financial assets not subsequently measured at fair value through profit or loss, transaction costs that are directly attributable to their acquisition. Transaction costs attributable to the acquisition of financial assets subsequently measured at fair value through profit or loss are expensed in the consolidated statement of income (loss) and comprehensive income (loss) when incurred.
Classification and subsequent measurement
On initial recognition, financial assets are classified and subsequently measured at amortized cost, fair value through other comprehensive income (“FVOCI”) or fair value through profit or loss (“FVTPL”). The Company determines the classification of its financial assets, together with any embedded derivatives, based on the business model for managing the financial assets and their contractual cash flow characteristics.
Financial assets are classified as follows:
· | Amortized cost - Assets that are held for collection of contractual cash flows where those cash flows are solely payments of principal and interest are measured at amortized cost. Interest revenue is calculated using the effective interest method and gains or losses arising from impairment, foreign exchange and derecognition are recognized in the consolidated statement of income (loss) and comprehensive income (loss). Financial assets measured at amortized cost are comprised of accounts receivable and deposits. |
· | Fair value through other comprehensive income - Assets that are held for collection of contractual cash flows and for selling the financial assets, and for which the contractual cash flows are solely payments of principal and interest, are measured at fair value through other comprehensive income. Interest income calculated using the effective interest method and gains or losses arising from impairment and foreign exchange are recognized in the consolidated statement of income (loss) and comprehensive income (loss). All other changes in the carrying amount of the financial assets are recognized in other comprehensive income. Upon derecognition, the cumulative gain or loss previously recognized in other comprehensive income is reclassified to profit or loss. The Company does not hold any financial assets measured at fair value through other comprehensive income. |
13 |
PROTECH HOME MEDICAL CORP.
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS
September 30, 2019 and 2018
(Tabular dollar amounts expressed in thousands of Canadian Dollars, except per share amounts)
3. | Significant Accounting Policies (continued) |
Financial assets (continued)
Classification and subsequent measurement (continued)
· | Mandatorily at fair value through profit or loss - Assets that do not meet the criteria to be measured at amortized cost, or fair value through other comprehensive income, are measured at fair value through profit or loss. All interest income and changes in the financial assets’ carrying amount are recognized in the consolidated statement of income (loss) and comprehensive income (loss). Financial assets mandatorily measured at fair value through profit or loss are comprised of cash and cash equivalents. |
· | Designated at fair value through profit or loss – On initial recognition, the Company may irrevocably designate a financial asset to be measured at fair value through profit or loss in order to eliminate or significantly reduce an accounting mismatch that would otherwise arise from measuring assets or liabilities, or recognizing the gains and losses on them, on different bases. All interest income and changes in the financial assets’ carrying amount are recognized in the consolidated statement of income (loss) and comprehensive income (loss). The Company does not hold any financial assets designated to be measured at fair value through profit or loss. |
The Company measures all equity investments at fair value. Changes in fair value are recorded in the consolidated statement of income (loss) and comprehensive income (loss). The entity does not hold any equity investments.
Business model assessment
The Company assesses the objective of its business model for holding a financial asset at a level of aggregation which best reflects the way the business is managed and information is provided to management. Information considered in this assessment includes stated policies and objectives.
Contractual cash flow assessment
The cash flows of financial assets are assessed as to whether they are solely payments of principal and interest on the basis of their contractual terms. For this purpose, ‘principal’ is defined as the fair value of the financial asset on initial recognition. ‘Interest’ is defined as consideration for the time value of money, the credit risk associated with the principal amount outstanding, and other basic lending risks and costs. In performing this assessment, the Company considers factors that would alter the timing and amount of cash flows such as prepayment and extension features, terms that might limit the Company’s claim to cash flows, and any features that modify consideration for the time value of money.
Impairment
The Company recognizes a loss allowance for the expected credit losses associated with its financial assets, other than financial assets measured at fair value through profit or loss. Expected credit losses are measured to reflect a probability-weighted amount, the time value of money, and reasonable and supportable information regarding past events, current conditions and forecasts of future economic conditions.
The Company applies the simplified approach for trade receivables. Using the simplified approach, the Company records a loss allowance equal to the expected credit losses resulting from all possible default events over the assets’ contractual lifetime.
14 |
PROTECH HOME MEDICAL CORP.
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS
September 30, 2019 and 2018
(Tabular dollar amounts expressed in thousands of Canadian Dollars, except per share amounts)
3. | Significant Accounting Policies (continued) |
Financial assets (continued)
Impairment (continued)
The Company assesses whether a financial asset is credit-impaired at the reporting date. Regular indicators that a financial instrument is credit-impaired include significant financial difficulties as evidenced through borrowing patterns or observed balances in other accounts and breaches of borrowing contracts such as default events or breaches of borrowing covenants. For financial assets assessed as credit-impaired at the reporting date, the Company continues to recognize a loss allowance equal to lifetime expected credit losses.
For financial assets measured at amortized cost, loss allowances for expected credit losses are presented in the statement of financial position as a deduction from the gross carrying amount of the financial asset.
Financial assets are written off when the Company has no reasonable expectations of recovering all or any portion thereof.
Derecognition of financial assets
The Company derecognizes a financial asset when its contractual rights to the cash flows from the financial asset expire.
Impairment of non-financial assets
Intangible assets are tested for impairment at each reporting period if impairment indicators exist and immediately prior to a transfer of costs to Property and Equipment (“P&E”). The Company has elected to allocate all its intangible assets to each of its cash generating units or subsidiaries listed under principals of consolidation (“CGUs”). As a result, the Company assesses its intangible assets for impairment at a CGU level. When the carrying amount of the CGU or group of CGUs exceeds their recoverable amount, the CGU or group of CGUs is considered impaired and written down to its recoverable amount. Recoverable amount is the higher of (i) the fair value less costs to sell and (ii) the value in use. Fair value less costs to sell is determined as the amount obtainable from the sale of an asset or CGU in an arm’s length transaction between knowledgeable, willing parties, less the costs of disposal. Value in use is generally computed by reference to the present value of the future cash flows expected to be derived from the asset or CGU discounted using a pre-tax discount rate reflecting market assessments of the time value of money and the risks specific to the asset or CGU. An impairment loss is recognized within earnings or loss. A previously recognized impairment loss may be reversed if the assumptions used to determine the recoverable amount have changed since the impairment loss recognition. For non-goodwill assets an impairment loss is reversed only to the extent that the asset’s carrying amount does not exceed the carrying amount that would have been determined, net of depreciation and depletion, if no impairment loss had been recognized.
Financial liabilities
Recognition and initial measurement
The Company recognizes a financial liability when it becomes party to the contractual provisions of the instrument. At initial recognition, the Company measures financial liabilities at their fair value plus transaction costs that are directly attributable to their issuance, with the exception of financial liabilities subsequently measured at fair value through profit or loss for which transaction costs are immediately recorded in the consolidated statement of income (loss) and comprehensive income (loss).
Where an instrument contains both a liability and equity component, these components are recognized separately based on the substance of the instrument, with the liability component measured initially at fair value and the equity component assigned the residual amount.
15 |
PROTECH HOME MEDICAL CORP.
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS
September 30, 2019 and 2018
(Tabular dollar amounts expressed in thousands of Canadian Dollars, except per share amounts)
3. | Significant Accounting Policies (continued) |
Financial liabilities (continued)
Classification and subsequent measurement
Subsequent to initial recognition, all financial liabilities are measured at amortized cost using the effective interest rate method. Interest, gains and losses relating to a financial liability are recognized in consolidated statement of income (loss) and comprehensive income (loss).
Derecognition of financial liabilities
The Company derecognizes a financial liability only when its contractual obligations are discharged, cancelled or expire.
Discontinued operations and assets held for distribution
A non-current asset or a group of assets and liabilities is held for distribution when its carrying amount will be recovered principally through its divestiture and not by continuing utilization. To meet this definition, the asset must be available for immediate sale, and divestiture must be highly probably. These assets and liabilities are recognized as assets held for distribution and liabilities associated with assets held for distribution, without offset. An operation is qualified as discontinued when it represents a separate major line of business and the criteria for classification as an asset held for distribution has been made or the Company has sold the asset. Discontinued operations are presented on a single line of the statement of (loss) income and comprehensive (loss) income for the periods reported, comprising the earnings after tax of discontinued operations until divestiture and the gain or loss after tax on sale or fair value measurement, less costs to sell the assets and liabilities making up the discontinued operations are presented on one separate line of the statement of consolidated cash flows for the periods presented.
Property and equipment
Property and equipment are stated at cost less accumulated depreciation. Major renewals and improvements are charged to the property accounts, while maintenance and repairs, which do not extend the useful life of the respective assets, are expensed as incurred. Depreciation is computed using the straight-line method over the estimated useful lives of the respective assets. The estimated useful lives of the assets are as follows:
Description | Estimated Useful Lives |
Monitoring Equipment | 1-5 years |
Vehicles | 5 years |
Computer equipment | 3-5 years |
Office furniture and fixtures | 5-10 years |
Leasehold Improvements | Life of lease |
Depreciation of monitoring equipment commences once it has been deployed to a patient’s address and put in use. Property and equipment and other non-current assets with definite useful lives are tested for impairment whenever events or changes in circumstances indicate that their carrying amount may not be recoverable.
Intangible assets
The Company has recorded various intangible assets consisting primarily of non-compete agreements, trademarks, customer contracts and customer relationships.
Non-compete agreements are the value associated with the non-compete agreements entered by the sellers of purchased companies.
16 |
PROTECH HOME MEDICAL CORP.
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS
September 30, 2019 and 2018
(Tabular dollar amounts expressed in thousands of Canadian Dollars, except per share amounts)
3. | Significant Accounting Policies (continued) |
Intangible assets (continued)
Trademarks are the purchase price allocation for the value associated with the trade name of the acquired Company.
Customer contracts are comprised of the purchase price allocation of the present value of expected future customer billings based on the statistical life of a customer.
Customer relationships are the value given in the purchase price allocation to the long-term associations with referral sources such as doctors, medical centers, etc.
Finite life intangible assets are amortized on a straight-line basis over the estimated useful lives of the related assets as follows:
Description | Estimated Useful Lives |
Non-compete agreements | 5 years |
Trademarks | 10 years |
Customer contracts | 2 years |
Customer relationships | 10 years |
Gains or losses arising from de-recognition of an intangible asset are measured as the difference between the net disposal proceeds and the carrying amount of the asset and are recognized in the Statements of Net Loss and Comprehensive Loss when the asset is derecognized.
The Company reviews the estimates for useful lives on an annual basis, or more frequently if events during the year indicate that a change may be required, with consideration given to technological obsolescence and other relevant business factors. A change in management’s estimate could impact depreciation/amortization expense and the carrying value of property and equipment and intangible assets.
4. | Accounts receivable |
Accounts receivable represents amounts due from insurance companies and patients:
As at September 30, 2019 | As at September 30, 2018 | |||||||
Gross receivable | $ | 24,368 | $ | 23,928 | ||||
Provision for expected credit losses | (11,978 | ) | (11,406 | ) | ||||
$ | 12,390 | $ | 12,522 |
As at September 30, 2019 |
Gross
Receivables |
Allowance for
losses |
Net
Receivables |
|||||||||
Current, 1-59 days past due | $ | 9,569 | $ | 367 | $ | 9,202 | ||||||
60-120 days past due | 4,161 | 973 | 3,188 | |||||||||
120+ days past due | 10,638 | 10,638 | - | |||||||||
Total | $ | 24,368 | $ | 11,978 | $ | 12,390 |
17 |
PROTECH HOME MEDICAL CORP. |
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS |
September 30, 2019 and 2018 |
(Tabular dollar amounts expressed in thousands of Canadian Dollars, except per share amounts) |
4. | Accounts receivable (continued) |
Below is the movement in provision for expected credit losses:
Provision for expected credit
losses |
Year ended
September 30, 2019 |
Year ended
September 30, 2018 |
||||||
Opening Balance | $ | 11,406 | $ | 14,660 | ||||
Additional allowance | 5,748 | 5,226 | ||||||
Amounts written off | (5,176 | ) | (8,480 | ) | ||||
Ending Balance | $ | 11,978 | $ | 11,406 |
The additional allowance of $5,748 (2018: 5,226) provided during the year comprises of $5,686 (2018: 5,226) from continuing operations, included in the selling, general and administrative expenses and $62 (2018: nil) from discontinued operations included under “net income from operations of discontinued operations” on the statement of (loss) income and other comprehensive (loss) income.
5. | Inventory |
As at September 30, 2019 | As at September 30, 2018 | |||||||
Serialized | $ | 1,038 | $ | 2,148 | ||||
Non-serialized | 3,700 | 3,492 | ||||||
Total inventory | $ | 4,738 | $ | 5,640 |
18
PROTECH HOME MEDICAL CORP. |
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS |
September 30, 2019 and 2018 |
(Tabular dollar amounts expressed in thousands of Canadian Dollars, except per share amounts) |
6. | Property and equipment |
Cost |
Monitoring
|
Computer equipment |
Office
|
Leasehold
|
Vehicles |
Total |
||||||||||||||||||
Balance September 30, 2017 |
$ | 34,966 | $ | 1,175 | $ | 478 | $ | 851 | $ | 2,254 | $ | 39,724 | ||||||||||||
Additions | 12,801 | 67 | 138 | 481 | 597 | 14,084 | ||||||||||||||||||
Acquisitions | 600 | 13 | 2 | - | 6 | 621 | ||||||||||||||||||
Disposals | (12,453 | ) | (126 | ) | - | - | (66 | ) | (12,645 | ) | ||||||||||||||
Foreign exchange | 1,287 | 44 | 17 | 32 | 84 | 1,464 | ||||||||||||||||||
Balance September 30, 2018 |
$ | 37,201 | $ | 1,173 | $ | 635 | $ | 1,364 | $ | 2,875 | $ | 43,248 | ||||||||||||
Additions | 11,269 | 35 | 4 | 166 | 1,226 | 12,700 | ||||||||||||||||||
Acquisitions | 125 | - | 4 | 2 | 36 | 167 | ||||||||||||||||||
Disposals | (11,992 | ) | (457 | ) | (62 | ) | (5 | ) | (770 | ) | (13,286 | ) | ||||||||||||
Disposal – discontinued operations | (1,999 | ) | (106 | ) | (21 | ) | (7 | ) | - | (2,133 | ) | |||||||||||||
Foreign exchange | 773 | 23 | 14 | 28 | 59 | 897 | ||||||||||||||||||
Balance September 30, 2019 |
$ | 35,377 | $ | 668 | $ | 574 | $ | 1,548 | $ | 3,426 | $ | 41,593 |
Accumulated Depreciation |
Monitoring
|
Computer equipment |
Office
|
Leasehold
|
Vehicles |
Total |
||||||||||||||||||
Balance September 30, 2017 |
$ | 17,196 | $ | 621 | $ | 188 | $ | 163 | $ | 925 | $ | 19,093 | ||||||||||||
Depreciation | 13,604 | 232 | 101 | 94 | 444 | 14,475 | ||||||||||||||||||
Depreciation – Discontinued operations | 403 | 24 | 6 | 4 | - | 437 | ||||||||||||||||||
Disposals | (12,295 | ) | (150 | ) | (44 | ) | (12,489 | ) | ||||||||||||||||
Foreign exchange | 768 | 26 | 8 | 2 | 40 | 844 | ||||||||||||||||||
Balance September 30, 2018 |
$ | 19,676 | $ | 753 | $ | 303 | $ | 263 | $ | 1,365 | $ | 22,360 | ||||||||||||
Depreciation | 12,490 | 171 | 104 | 67 | 534 | 13,366 | ||||||||||||||||||
Depreciation – Discontinued operations | 370 | 4 | 2 | 1 | - | 377 | ||||||||||||||||||
Disposals | (12,006 | ) | (374 | ) | (61 | ) | (3 | ) | (648 | ) | (13,092 | ) | ||||||||||||
Disposals – Discontinued operations | (1,134 | ) | (87 | ) | (15 | ) | (7 | ) | - | (1,243 | ) | |||||||||||||
Foreign exchange | 161 | 24 | 11 | 19 | 114 | 329 | ||||||||||||||||||
Balance September 30, 2019 |
$ | 19,557 | $ | 491 | $ | 344 | $ | 340 | $ | 1,365 | $ | 22,097 |
Net Book Value |
Monitoring equipment |
Computer equipment |
Office
|
Leasehold
|
Vehicles |
Total |
||||||||||||||||||
Balance September 30, 2017 |
$ | 17,770 | $ | 554 | $ | 290 | $ | 688 | $ | 1,329 | $ | 20,631 | ||||||||||||
Balance September 30, 2018 |
$ | 17,525 | $ | 420 | $ | 332 | $ | 1,101 | $ | 1,510 | $ | 20,888 | ||||||||||||
Balance September 30, 2019 |
$ | 15,820 | $ | 177 | $ | 230 | $ | 1,208 | $ | 2,061 | $ | 19,496 |
During the year-ended September 30, 2019, the Company purchased a total of $11,319 in monitoring equipment (2018: $12,801), of which, $10,946 were purchased on finance lease (2018: 13,318)
19
PROTECH HOME MEDICAL CORP. |
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS |
September 30, 2019 and 2018 |
(Tabular dollar amounts expressed in thousands of Canadian Dollars, except per share amounts) |
7. | Acquisitions of businesses |
Acquisition of Central Oxygen Inc. (Central Oxygen)
On October 31, 2018, the Company, through one of its indirect wholly-owned subsidiaries, PHM Logistics Corporation (PHM Logistics), entered into a purchase agreement to acquire all of the shares of Central Oxygen, an Indiana Company, for a purchase consideration of $788,000, of which, 624,000 was payable in cash and 164,00 was settled by issuance of 227,491 shares at a fair value of $0.72 per share. (See note 12). The Company has determined that the transaction is an acquisition of a business under IFRS 3 and it has been accounted for by applying the acquisition method. Central Oxygen is a participating Medicare provider that provides i) power mobility equipment, vehicle lifts, nebulizers, oxygen concentrators, and CPAP and BiPAP units;
ii) traditional and non-traditional durable medical equipment respiratory and durable medical equipment and services; and iii) non-invasive ventilation equipment, supplies and services. The acquisition was performed due to synergies with Company’s existing business.
The purchase consideration allocated to the net assets acquired, based on their estimated fair values was as follows:
Accounts receivable | $ | 31 | ||
Cash and cash equivalents | 10 | |||
Inventory | 164 | |||
Prepaid assets | 5 | |||
Capital assets | 59 | |||
Accrued liabilities | (12 | ) | ||
Net assets acquired | $ | 257 | ||
Cash paid at closing | $ | 394 | ||
Cash paid after closing | 230 | |||
Shares issued | 164 | |||
Consideration paid or payable | $ | 788 | ||
Goodwill | $ | 531 |
As part of the current assets acquired, the Company received accounts receivable with a fair value of $31,000. This was equivalent to the best estimate of contractual cash flows expected to be collected. Accrued liabilities acquired comprises of amounts due to previous owner and taxes payable and are assumed to be on fair value since these are repayable in less than 12 months and estimated based on actual amount of cash outflow expected.
The acquired business contributed revenue of $675,000 and net loss of ($701,000) to the group from November 1, 2018 to September 30, 2019.
The Company’s annual goodwill impairment testing determined that the carrying value of Central Oxygen CGU exceeded their value in use, and as a result, the Company recorded a goodwill impairment charge of $531,000. The impairment resulted from a decline in the expected performances of these businesses relative to expectations at the time the acquisitions were consummated.
Furthermore, the impairment was determined based on a value in use calculation which uses cash flow projection covering a five-year period and a discount rate of 17% per annum. The cash flows beyond the five-year period have been extrapolated using terminal growth rate of (0% to 3%) per annum.
20
PROTECH HOME MEDICAL CORP. |
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS |
September 30, 2019 and 2018 |
(Tabular dollar amounts expressed in thousands of Canadian Dollars, except per share amounts) |
7. Acquisitions of businesses (continued)
Acquisition of Riverside Medical Inc. (Riverside)
On October 31, 2018, the Company, through one of its indirect wholly owned subsidiaries, PHM Logistics, entered into a purchase agreement to acquire all of the shares of Riverside Medical Inc. (Riverside), a Tennessee company, for a purchase consideration of $131,000 payable in cash. The Company has determined that the transaction is an acquisition of a business under IFRS 3 and it has been accounted for by applying the acquisition method. Riverside is a participating Medicare provider that provides i) nebulizers, oxygen concentrators, and CPAP and BiPAP units; ii) traditional and non-traditional durable medical respiratory equipment and services; and iii) non-invasive ventilation equipment, supplies and services. The acquisition was performed due to synergies with Company’s existing business.
The purchase consideration allocated to the net assets acquired, based on their estimated fair values was as follows:
Accounts receivable | $ | 33 | ||
Customer contracts | 160 | |||
Cash and cash equivalents | 10 | |||
Inventory | 34 | |||
Capital assets | 109 | |||
Advance to shareholder | 37 | |||
Accounts payable | (31 | ) | ||
Debt and other loans | (178 | ) | ||
Accrued liabilities | (42 | ) | ||
Net assets acquired | $ | 132 | ||
Cash | 132 | |||
Consideration paid or payable | $ | 132 |
As part of the current assets acquired, the Company received accounts receivable with a fair value of $33,000. This was equivalent to the best estimate of contractual cash flows expected to be collected. Accrued liabilities acquired comprises of amounts due to previous owner and taxes payable and are assumed to be on fair value since these are repayable in less than 12 months and estimated based on actual amount of cash outflow expected.
The acquired business contributed revenue of $766,000 and net loss of ($146,000) to the group from November 1, 2018 to September 30, 2019.
Acquisition of Coastal Med-Tech Corp. (CMT)
On August 31, 2018, the Company executed a purchase agreement to acquire all the assets of CMT, a Maine Company, for a purchase consideration of $546,000 which was paid in cash. The Company has determined that the transaction is an acquisition of a business under IFRS 3 and it has been accounted for by applying the acquisition method. CMT provides sales of nebulizers, oxygen concentrators, CPAP/BiPAP units, non- invasive ventilation equipment and supplies and traditional and non-traditional respiratory and durable medical equipment and services. The acquisition was performed due to synergies with Company’s existing business.
21
PROTECH HOME MEDICAL CORP. |
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS |
September 30, 2019 and 2018 |
(Tabular dollar amounts expressed in thousands of Canadian Dollars, except per share amounts) |
7. | Acquisitions of businesses (continued) |
The purchase consideration allocated to the net assets acquired, based on their estimated fair values was as follows:
Fair value of net assets acquired:
Accounts receivable | $ | 295 | ||
Cash and cash equivalents | 42 | |||
Inventory | 302 | |||
Capital assets | 621 | |||
Accrued liabilities | (714 | ) | ||
$ | 546 | |||
Consideration paid: | ||||
Cash | $ | 546 | ||
$ | 546 |
As part of the current assets acquired, the Company received accounts receivable with a fair value of $295,000. This was equivalent to the best estimate of contractual cash flows expected to be collected. Accrued liabilities acquired comprises of consultancy fee payable and accrual for payroll and other taxes. The fair value of consultancy fee was determined by discounting the stream of future payments at the prevailing market rate of 17% per annum over the term of the consultancy agreement of 3 years. Accrual for payroll and other taxes are assumed to be on fair value since these are repayable in less than 12 months and estimated based on actual amount of cash outflow expected.
The acquired business contributed revenue of $918,000 and net income of $106,000 to the group from September 1, 2018 to September 30, 2018. The Company expensed $113,000 of transaction costs during the year. Pro-forma revenues and net loss had the acquisition occurred October 1, 2017 were USD $5,010,000 and USD $1,306,000 respectively.
22
PROTECH HOME MEDICAL CORP. |
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS |
September 30, 2019 and 2018 |
(Tabular dollar amounts expressed in thousands of Canadian Dollars, except per share amounts) |
8. | Goodwill and intangible assets |
Cost |
Goodwill |
Non-
|
Brand |
Customer
|
Customer
|
Sub-total
|
Total |
|||||||||||||||||||||
Balance September 30, 2017 |
$ | 1,773 | $ | 645 | $ | 1,674 | $ | 4,653 | $ | 10,861 | $ | 17,833 | $ | 19,606 | ||||||||||||||
Disposals | - | - | - | - | (269 | ) | (269 | ) | (269 | ) | ||||||||||||||||||
Effect of changes in exchange rates | 66 | 24 | 62 | 173 | 402 | 661 | 727 | |||||||||||||||||||||
Balance September 30, 2018 | $ | 1,839 | $ | 669 | $ | 1,736 | $ | 4,826 | $ | 10,994 | $ | 18,225 | $ | 20,064 | ||||||||||||||
Disposals | - | - | - | - | (43 | ) | (43 | ) | (43 | ) | ||||||||||||||||||
Acquired through business combination | 531 | - | - | 160 | - | 160 | 691 | |||||||||||||||||||||
Impairment of goodwill | (531 | ) | - | - | - | - | - | (531 | ) | |||||||||||||||||||
Effect of changes in exchange rates | 42 | 15 | 40 | 113 | 253 | 421 | 463 | |||||||||||||||||||||
Balance September 30, 2019 | $ | 1,881 | $ | 684 | $ | 1,776 | $ | 5,099 | $ | 11,204 | $ | 18,763 | $ | 20,644 |
Accumulation amortization |
Goodwill |
Non-
|
Brand |
Customer
|
Customer
|
Sub-total
|
Total |
|||||||||||||||||||||
Balance September 30, 2017 | $ | - | $ | 509 | $ | 910 | $ | 4,641 | $ | 8,011 | $ | 14,071 | $ | 14,071 | ||||||||||||||
Additions | - | 47 | 102 | 12 | 460 | 621 | 621 | |||||||||||||||||||||
Disposals | - | - | - | - | (270 | ) | (270 | ) | (270 | ) | ||||||||||||||||||
Effect of changes in exchange rates | - | 19 | 35 | 173 | 301 | 528 | 528 | |||||||||||||||||||||
Balance September 30, 2018 |
$ | - | $ | 575 | $ | 1,047 | $ | 4,826 | $ | 8,502 | $ | 14,950 | $ | 14,950 | ||||||||||||||
Additions | - | 48 | 105 | - | 450 | 603 | 603 | |||||||||||||||||||||
Disposals | - | - | - | - | (43 | ) | (43 | ) | (43 | ) | ||||||||||||||||||
Effect of changes in exchange
rates |
- | 13 | 24 | 111 | 194 | 342 | 342 | |||||||||||||||||||||
Balance September 30, 2019 | - | $ | 636 | $ | 1,176 | $ | 4,937 | $ | 9,103 | $ | 15,852 | $ | 15,852 |
Net carrying amount |
Goodwill |
Non-
|
Brand |
Customer
|
Customer
|
Sub-total
|
Total |
|||||||||||||||||||||
Balance September 30, 2017 | $ | 1,773 | $ | 136 | $ | 764 | $ | 12 | $ | 2,850 | $ | 3,762 | $ | 5,535 | ||||||||||||||
Balance September 30, 2018 | $ | 1,839 | $ | 94 | $ | 689 | $ | - | $ | 2,492 | $ | 3,275 | $ | 5,114 | ||||||||||||||
Balance September 30, 2019 | $ | 1,881 | $ | 48 | $ | 600 | $ | 162 | $ | 2,101 | $ | 2,911 | $ | 4,792 |
23
PROTECH HOME MEDICAL CORP. |
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS |
September 30, 2019 and 2018 |
(Tabular dollar amounts expressed in thousands of Canadian Dollars, except per share amounts) |
8. | Goodwill and intangible assets (continued) |
Goodwill Continuity
Balance
30,2018 |
Acquired
through business combination |
Impairment
|
Change
exchange |
Balance
|
||||||||||||||||
Legacy | $ | 1,839 | $ | - | $ | - | $ | 42 | $ | 1,881 | ||||||||||
Central Oxygen, Inc. | - | 531 | (531 | ) | - | - | ||||||||||||||
Total |
$ | 1,839 | $ | 531 | $ | (531 | ) | $ | 42 | $ | 1,881 |
Cash generating units value in use versus carrying value comparison
Value
in Use of
|
Carrying
value of
|
Excess (deficit) of fair value
|
||||||||||
Legacy | $ | 8,400 | $ | 6,400 | $ | 2,000 | ||||||
Total | $ | 8,400 | $ | 6,400 | $ | 2,000 |
Goodwill by CGU
The Company’s annual goodwill impairment testing determined that the carrying value of Central Oxygen CGU exceeded their value in use, and as a result, the Company recorded a goodwill impairment charge of $531,000. The impairment resulted from a decline in the expected performances of these businesses relative to expectations at the time the acquisitions were consummated.
No impairment has been recognized in the current year as carrying value of the Legacy CGU exceeds value in use as of September 30, 2019 and 2018.
The impairment is determined based on a value in use calculation which uses cash flow projections covering a five-year period and a discount rate of 17% per annum. The cash flows beyond the five-year period have been extrapolated using (terminal growth rates of 0%) per annum growth rate. Where the value in use for a particular CGU was less than the carrying amount of the assets, the recoverable amounts for those assets have been determined based on value in use model.
24
PROTECH HOME MEDICAL CORP. |
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS |
September 30, 2019 and 2018 |
(Tabular dollar amounts expressed in thousands of Canadian Dollars, except per share amounts) |
9. | Finance lease obligation |
Year
ended
|
Year
ended
|
|||||||
Finance lease obligations | $ | 11,609 | $ | 13,905 | ||||
Current portion of finance lease obligations | (8,528 | ) | (9,658 | ) | ||||
Net long-term finance lease obligations | $ | 3,081 | $ | 4,247 |
Below is the movement in finance lease obligations:
Year ended
September 30, 2019 |
Year ended
September 30, 2018 |
|||||||
Opening Balance | $ | 13,905 | $ | 9,701 | ||||
Additions during the year | 11,399 | 15,092 | ||||||
Repayments | (13,695 | ) | (10,888 | ) | ||||
Ending Balance | $ | 11,609 | $ | 13,905 |
Additions during the year comprises of finance leases for monitoring equipment with an implied interest rate at fixed rates between 0.0% - 11.5%, due between 2019 and 2023. Of the total equipment additions of $11,399,000 (2018: $15,092,000) under finance leases, $10,946,000 (2018: $13,318,000) were capitalized under property and equipment and remaining are included under inventory.
Future payments pursuant to these finance lease obligations are as follows:
As at
September 30, 2019 |
As at
September 30, 2018 |
|||||||
Less than 1 year | $ | 8,528 | $ | 7,511 | ||||
Between 1 and 5 years | 3,081 | 6,394 | ||||||
More than five years | - | - | ||||||
Total | $ | 11,609 | $ | 13,905 |
Below is the reconciliation of total future minimum lease payments and its present value at the end of the reporting period:
As at
September 30, 2019 |
As at
September 30, 2018 |
|||||||
Gross lease payments | $ | 12,283 | $ | 14,654 | ||||
Less: finance charges | (674 | ) | (749 | ) | ||||
Net finance lease obligations | $ | 11,609 | $ | 13,905 |
25
PROTECH HOME MEDICAL CORP. |
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS |
September 30, 2019 and 2018 |
(Tabular dollar amounts expressed in thousands of Canadian Dollars, except per share amounts) |
10. | Debentures |
As at September 30, 2019 | As at September 30, 2018 | |||||||
Convertible debentures (a) | $ | 13,966 | $ | - | ||||
Non-convertible unsecured subordinate debentures (b) |
- | 7,193 | ||||||
Total debt | $ | 13,966 | $ | 7,193 |
(a) | On March 7, 2019, the Company issued $15,000,000 in 8.0% Convertible Unsecured Debentures due March 7, 2024, with interest payable semi-annually on June 30th and December 30th of each year. Each $1,000 debenture is convertible at the option of the holder into approximately 769.23 common shares at $1.30 per common share during the term of the debenture. After three years, the Company can force conversion of the outstanding principal at conversion price of $1.30, if the daily volume weighted average price of the common shares exceeds $1.62/share for twenty consecutive trading days. The debenture agreement also allows for payment of cash in lieu of common shares upon exercise of conversion right by the holder, equivalent of the market price on the conversion date. |
The above debenture contains multiple embedded derivatives including conversion right, forced conversion option and payment in lieu of common shares.
Since the Company is unable to measure the fair value of embedded derivatives reliably, it has chosen to initially designate the convertible debentures in their entirety (including conversion right, forced conversion option and payment in lieu of common shares) to be subsequently measured at fair value through profit or loss (FVTPL).
The debentures are valued at fair value using the current trading price, with change in fair market value of $1,034,000 has been recorded in the statement of (loss) income and other comprehensive (loss) income.
In connection with the above debentures, the Company issued broker warrants to purchase 519,231 common shares. Each warrant entitles the holder to purchase one common share of the Company at a price of $1.30 until March 7, 2024. The warrants were valued using Black-Scholes at $175,000 and are included as equity warrants. The company also issued bonus to management amounting to $519,000 which is included under key management compensation. In addition, an amount of $1,064,000 was paid as commission to underwriters. The entire transaction cost of $1,758,000 has been fully expensed on the consolidated statement of (loss) income and comprehensive (loss) income.
Below is the movement in these convertible debentures:
Year
ended
September 30, 2019 |
Year
ended
September 30, 2018 |
|||||||
Opening Balance | $ | - | $ | - | ||||
Proceeds from issuance during the year | 15,000 | - | ||||||
Changes in fair market value of debentures | (1,034 | ) | - | |||||
Ending Balance | $ | 13,966 | $ | - |
(b) | On August 27, 2014, the Company issued $8,625,000 in 7.5% non-convertible unsecured subordinated debentures due December 31, 2019. In connection therewith, the Company issued broker warrants to purchase 5,744,250 common shares. Each warrant entitled the holder to purchase one common share of the Company at a price of $0.45 until August 27, 2019. As the Warrants had no assigned value, the value was calculated using Black-Scholes. The initial value of the Warrants of $2,576,000, together with transaction cost of $1,505,000, was netted against the carrying value of the debentures and accreted to interest expense using the effective interest rate method. These debentures were satisfied early in April 2019 at $8,970,000 (at a premium of $345,000). The carrying value of debentures as on the date of |
26
PROTECH HOME MEDICAL CORP. |
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS |
September 30, 2019 and 2018 |
(Tabular dollar amounts expressed in thousands of Canadian Dollars, except per share amounts) |
10. | Debentures (continued) |
settlement was $7,864,000, resulting in a loss on early extinguishment of $1,106,000 due to unaccreted balance and premium paid due to early settlement. The related conversion warrants that were recorded as derivative liability also expired in August 2019. A gain of $95,000 was recorded on derecognition of the same.
Below is the movement in these non-convertible debentures:
Year ended
September 30, 2019 |
Year ended
September 30, 2018 |
|||||||
Opening Balance | $ | 7,193 | $ | 6,308 | ||||
Accretion for the year | 671 | 885 | ||||||
Repayment | (8,625 | ) | - | |||||
Loss on early extinguishment | 761 | |||||||
Ending Balance | $ | - | $ | 7,193 |
11. | Conversion Liability Warrants |
(a) On August 27, 2014, the parent Company issued $8,625,000 in 7.5% non-convertible unsecured subordinated debentures due December 31, 2019. In connection therewith, the Company issued broker warrants to purchase 5,744,250 common shares. Since the warrants are convertible into shares denominated in Canadian Dollars which is different from the functional currency of the parent Company (US Dollar), the conversion feature was identified as a derivative financial liability with the related the fair value movement recognized in the consolidated statement of income (loss) and comprehensive income (loss). These warrants expire during the year and a gain of $95 was recorded on derecognition of the derivative liability relating to conversion. Below is the movement in the conversion liability relating to warrants.
Value | ||||
Balance September 30, 2017 | $ | 262 | ||
Change in fair value | (167 | ) | ||
Balance September 30, 2018 | $ | 95 | ||
Gain on derecognition | (95 | ) | ||
Balance September 30, 2019 | $ | - |
Conversion Liability Warrants Continuity Schedule
Number of warrants (000’s) |
Weighted average exercise price |
|||||||
Balance September 30, 2017 | 5,201 | $ | 8.45 | |||||
Expired | (4,843 | ) | 3.75 | |||||
Balance September 30, 2018 | 358 | $ | 0.95 | |||||
Expired | (358 | ) | 0.95 | |||||
Balance September 30, 2019 | - | $ | - |
27
PROTECH HOME MEDICAL CORP. |
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS |
September 30, 2019 and 2018 |
(Tabular dollar amounts expressed in thousands of Canadian Dollars, except per share amounts) |
12. | Share capital |
The Company considers its share capital to be shareholders’ equity, which is comprised of share capital, contributed surplus, accumulated other comprehensive income (loss), and accumulated deficit, in the amount of $19,149,000 as at September 30, 2019 and $19,270,000 as at September 30, 2018.
The Company raises capital, as necessary, to meet its needs and take advantage of perceived opportunities and, therefore, does not have a numeric target for its capital structure. Funds are primarily secured through equity capital, convertible debentures raised by way of private placements and debt instruments.
Management reviews its capital management approach on an ongoing basis and believes that this approach, given the relative size of the Company, is reasonable. The Company invests all capital that is surplus to its immediate operational needs in short-term, liquid and highly rated financial instruments, such as cash, and short-term guarantee deposits, held with major Canadian and US financial institutions.
Authorized share capital
The Company’s authorized share capital consists of an unlimited number of common shares and an unlimited number of preferred shares issuable in series. The preferred shares issuable in series will have the rights, privileges, restrictions, and conditions assigned to the series upon the Board of Directors approving their issuance.
Issued share capital
The Company has only one class of common stock outstanding. Effective December 31, 2018, the Company consolidated its issued and outstanding common shares based on one post-consolidation common share for every five pre-consolidation common shares.
Common shares are classified as equity. Incremental costs directly attributable to the issuance of common shares are recognized as a reduction of equity, net of any tax effects. Accumulated other comprehensive income represents items such as cumulative, foreign currency translation adjustments, the change in equity arising from unrealized gains and losses from financial instruments designated as available-for-sale, and changes in fair value of derivatives designated as cash flow hedges, and is presented as a separate component of shareholders’ equity on the Consolidated Statements of Financial Position. The Company does not currently participate in hedging activities.
Bought deal and private placement
On November 2, 2018, the Company completed a bought deal offering of 5,649,600 common shares of the Company at a price of $0.60 per share for aggregate gross proceeds to the Company of $4,490,000. Issuance costs of $343,000 in cash was incurred. The Company also issued to the underwriter compensation options equal to 6.5% of the offered shares (1,836,120). Each compensation option is exercisable into one common share of the Company at the issue price for a period of 24 months from the closing of the offering. These shares are recorded as compensation options at $0.60 per share. Along with this bought deal private placement, the Company also completed a previously announced non-brokered private placement of common shares of the Company at the issue price for gross proceeds to the Company of $1,100,000. A total of 1,833,333 common shares of the Company were sold pursuant to the non-brokered private placement to officers and directors. The fair value of the options has been properly valued using the Black-Scholes option pricing model.
28
PROTECH HOME MEDICAL CORP. |
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS |
September 30, 2019 and 2018 |
(Tabular dollar amounts expressed in thousands of Canadian Dollars, except per share amounts) |
12. Share capital (continued)
Warrants
The fair value of the warrants issued along with debenture has been charged to equity over the proper vesting period, using the Black-Scholes option pricing model calculated using the following assumptions:
Year ended | ||||
September 30, 2019 | ||||
Share price | $ | 0.90 | ||
Risk-free interest rate | 1.62 | % | ||
Expected volatility | 87.40 | % | ||
Expected life of option | 2 years | |||
Expected dividend yield | Nil | |||
Expected forfeiture rate | 5 | % |
Options
The Company has a stock option plan, which it uses for grants to directors, officers, employees and consultants. Options granted under the plan are non-assignable and may be granted for a term not exceeding ten years. Stock options generally either vest immediately or annually over a three-year period. A summary of stock options is provided below:
Number of
options
|
Weighted
average exercise price |
|||||||
Balance September 30, 2017 | 3,812 | $ | 2.59 | |||||
Issued | 13,563 | 0.55 | ||||||
Cancelled | (3,481 | ) | 2.59 | |||||
Exercised | (280 | ) | 0.90 | |||||
Forfeited | (3,810 | ) | 0.81 | |||||
Balance September 30, 2018 | 9,804 | $ | 0.45 | |||||
Issued | 2,507 | 0.71 | ||||||
Exercised | (56 | ) | 0.38 | |||||
Forfeited | (496 | ) | 0.53 | |||||
Balance September 30, 2019 | 11,759 | $ | 0.52 |
The Company had 496,000 of stock options forfeited during the fiscal year ended September 30, 2019 with a weighted average exercise price of $0.53. At September 30, 2019, the Company had 11,515,000 vested, exercisable stock options with a weighted average exercise price of $0.49. At September 30, 2018, the Company had 346,000 vested, exercisable stock options with a weighted average exercise price of $0.18.
As part of the Arrangement agreement on December 21, 2017, 3,481,000 options of the Company were cancelled, and 3,149,000 new options reissued. The Company determined that the fair value of new options issued was higher than the old options cancelled by $459,000 and recorded it as stock-based compensation expense in September 30, 2018.
Stock-based compensation
The Company accounts for stock-based compensation, including stock options, using the fair value method as prescribed by IFRS 2. Under this method, the fair value of stock options at the date of grant is amortized over the vesting period and the offsetting credit is recorded as an increase in contributed surplus.
29
PROTECH HOME MEDICAL CORP. |
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS |
September 30, 2019 and 2018 |
(Tabular dollar amounts expressed in thousands of Canadian Dollars, except per share amounts) |
12. | Share capital (continued) |
Stock-based compensation (continued)
For the year ended September 30, 2019, the Company recorded total stock-based compensation expense of $2,063,000. For the year ended September 30, 2018, the Company recorded total stock-based compensation expense of $2,128,000, including the amount related to fair value difference on options cancelled and reissued on spin off.
The fair value of the stock options has been charged to the statement of income (loss) and comprehensive loss and credited to contributed surplus over the proper vesting period, using the Black-Scholes option pricing model calculated using the following assumptions:
Year
ended
|
Year
ended
September 30, 2018 |
|||||||
Share price | $0.63 - $0.90 | $ | 0.05 | |||||
Risk-free interest rate | 1.26% – 2.24% | 2.36 | % | |||||
Expected volatility | 84.70% – 118.17% | 136.35 | % | |||||
Expected life of option | 2-10 Years | 10 Years | ||||||
Expected dividend yield | Nil | Nil |
13. | Commitments and Contingencies |
Leases
Leases under which the Company assumes substantially all the risks and rewards of ownership are classified as finance leases. Upon initial recognition, the leased asset is measured at an amount equal to the lesser of its fair value and the present value of the minimum lease payments. Subsequent to initial recognition, the asset is accounted for in accordance with the accounting policy applicable to the asset. The associated lease liability is paid down over the life of the lease by allocating a portion of each lease payment to the liability with the remainder being recognized as interest expense. Leases that do not transfer the risks and rewards of ownership to the Company are treated as operating leases and are expensed as incurred.
The Company leases certain facilities and medical equipment under the terms of non-cancelable operating leases. Future payments pursuant to these commitments are as follows:
September 30, 2019 | ||||
Less than 1 year | $ | 1,939 | ||
Between 1 and 4 years | 2,421 | |||
Five years or more | - | |||
Total | $ | 4,360 |
Contingencies
The Company has been in litigation with Lightwater Long Short Fund (“Lightwater”) for the years ended September 30, 2019 and 2018. The litigation is due to Lightwater claiming damages for matters related to subscription agreements in a prior private placement. Management and legal believe that this lawsuit is without merit and is unpredictable. It is uncertain currently to determine the outcome of this lawsuit or our potential liability, if any.
In March 2019, the Company experienced an unlawful and undiscovered intrusion into its email system, which resulted in fraudulent banking information being relayed regarding the transfer of funds on April 30, 2019 to satisfy the then outstanding debentures. The intruder was able to mislead certain parties with inaccurate requests and instructions and in doing so, caused the funds of $9,200,000 to be transferred into an account of a criminal third party outside North America. The fraud was uncovered on May 3, 2019, and the Company took immediate action to stop or undo the transfer and simultaneously started action to recover the amounts transferred. The Company
30
PROTECH HOME MEDICAL CORP. |
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS |
September 30, 2019 and 2018 |
(Tabular dollar amounts expressed in thousands of Canadian Dollars, except per share amounts) |
13. | Commitments and Contingencies (continued) |
Contingencies (continued)
has successfully retrieved $8,600,000 of the funds and is in process of enforcing a court order to have the rest of the $600,000 of funds returned. The net loss of $600,000 and the legal fees of $400,000 incurred to recover the funds is reflected as “loss from cyber incident” on the statement of income (loss) and comprehensive income.
The Company is included, along with ten others, as defendants in a litigation with the State of California regarding a violation of the California Insurance Prevention Act. The complaint alleges that the defendants violated the act by paying kickbacks in exchange for client referrals under the guise of so called bed vouchers or indigent scholarship costs, and by billing for addition recovery services that did not meet the minimum requirements put forth by the insurers as a precondition for reimbursement. The Company is contesting the allegations and it is too early in the litigation process to determine the outcome of this lawsuit or potential liability, if any.
The Company is in litigation with the State of New Jersey, as well as other states. The complaint alleges that the defendants reused blood testing meters, resulting in fraudulent claims to the US government, and seeks damages for the unnecessary testing. The case is in its very preliminary stages the Company believes that the litigation does not presents significant exposure to the Company and it will be filing a motion to dismiss the complaint.
14. | Expenses by Nature |
Year Ended | Year Ended | |||||||
September 30, 2019 | September 30, 2018 | |||||||
Included in cost of revenue: | ||||||||
Inventory Expensed | $ | 23,527 | $ | 21,737 | ||||
$ | 23,527 | $ | 21,737 | |||||
Included in selling, general and administrative: | ||||||||
Employee salary and benefits | 25,947 | 22,589 | ||||||
Bad debt expense | 5,686 | 5,226 | ||||||
Facilities | 3,596 | 3,854 | ||||||
Patient marketing costs | 623 | 564 | ||||||
All other | 6,730 | 6,168 | ||||||
Total | $ | 42,582 | $ | 38,401 |
15. | Income taxes |
The Company follows the asset and liability method of accounting for income taxes. Under this method, current income taxes are recognized for the estimated income taxes payable for the current year. Deferred income tax assets and liabilities are recognized for temporary differences between the tax and accounting basis of assets and liabilities as well as for the benefit of losses available to be carried forward to future years for tax purposes are measured using the current or substantively enacted tax rates expected to apply when the differences reverse. A deferred tax asset is recognized to the extent that the recoverability of deferred income tax assets is considered probable.
31
PROTECH HOME MEDICAL CORP. |
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS |
September 30, 2019 and 2018 |
(Tabular dollar amounts expressed in thousands of Canadian Dollars, except per share amounts) |
15. Income taxes (continued)
The Company’s provision for (recovery of) income taxes differs from the amount that is computed by applying the combined federal and state statutory income tax rate of 24% and 30% as of September 30, 2019 and 2018, respectively, in the United States to the Company’s net income (loss) before income follows:
Income taxes
Year ended
September 30, 2019 |
Year ended
September 30, 2018 |
|||||||
Net loss before income taxes | $ | (8,872 | ) | $ | (8,329 | ) | ||
Expected income tax recovery | $ | (2,129 | ) | $ | (2,331 | ) | ||
Difference in foreign tax rates | (93 | ) | 53 | |||||
Tax rate changes and other adjustments | 1,467 | 5,388 | ||||||
Stock based compensation | 1,753 | 993 | ||||||
State taxes | 148 | 130 | ||||||
Goodwill Impairment | - | |||||||
Other adjustments | 129 | (31 | ) | |||||
Prior period adjustments | (328 | ) | (724 | ) | ||||
FX adjustments | (253 | ) | (417 | ) | ||||
Share issuance cost booked through equity | (93 | ) | ||||||
Deferred tax assets not recognized in the year | (332 | ) | (3,192 | ) | ||||
$ | 269 | $ | 130 | |||||
The Company's income tax provision (recovery) is allocated as follows: |
||||||||
Current tax provision | $ | 269 | $ | 130 | ||||
Deferred tax provision | - | - | ||||||
$ | 269 | $ | 130 |
Deferred tax
The following table summarizes the components of deferred tax:
As
at September
|
As at
September 30,
|
|||||||
Deferred Tax Assets |
||||||||
Net operating losses – US | $ | 3,675 | $ | 3,471 | ||||
Fair value changes on debentures – Canada | (279 | ) | - | |||||
Deferred Tax Liabilities | ||||||||
Property, plant and equipment – US | (3,675 | ) | (3,440 | ) | ||||
Receivable on sale – US | - | (31 | ) | |||||
Non-Capital Losses – Canada | 279 | - | ||||||
Net deferred taxes | $ | - | $ | - |
Deferred tax assets and liabilities have been offset where they relate to income taxes levied by the same taxation authority and the Company has the legal right and intent to offset.
32
PROTECH HOME MEDICAL CORP. |
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS |
September 30, 2019 and 2018 |
(Tabular dollar amounts expressed in thousands of Canadian Dollars, except per share amounts) |
15. | Income taxes (continued) |
Unrecognized deferred tax assets
Deferred taxes are provided as a result of temporary differences that arise due to the differences between the income tax values and the carrying number of assets and liabilities. Deferred tax assets have not been recognized in respect of the following deductible temporary differences:
As at September 30,
|
As at September 30,
|
|||||||
Intangible asset | $ | 294 | $ | 311 | ||||
Allowance for bad debts – United States | 11,981 | 11,406 | ||||||
Non-capital losses – United States | 14,445 | 13,304 | ||||||
Share issuance costs | 1,107 | 1,265 | ||||||
Net capital losses carried forward | 1,327 | 1,327 | ||||||
Non-capital losses – Canada | 27,473 | 23,827 | ||||||
Other temporary differences | 19,763 | 21,070 |
The Canadian non-capital loss carryforwards expire noted in the table below. The US loss carryforwards expire as noted in 2039. Share issue and financing costs will be fully amortized in 2019. The remaining deductible temporary differences may be carried forward indefinitely. Deferred tax assets have not been recognized in respect of these items because it is not probable that future profit will be available against which the Company can utilize the benefits therefrom.
The Company’s Canadian non-capital income tax losses expire as follows:
2027 | $ | 920 | ||||
2028 | 96 | |||||
2029 | 52 | |||||
2030 | 245 | |||||
2031 | 374 | |||||
2032 | 425 | |||||
2033 | 2,205 | |||||
2034 | 11,892 | |||||
2035 | 1,148 | |||||
2036 | 3,073 | |||||
2038 | 3,418 | |||||
2039 | 4,659 | |||||
$ | 28,507 |
33
PROTECH HOME MEDICAL CORP. |
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS |
September 30, 2019 and 2018 |
(Tabular dollar amounts expressed in thousands of Canadian Dollars, except per share amounts) |
16. | Financial instruments |
Fair value measurement
Financial instruments carried at fair value on the consolidated statements of financial position are classified using a fair value hierarchy that reflects the significance of the inputs used in making the measurements. The fair value hierarchy has the following levels:
a) | Level 1 – Where financial instruments are traded in active financial markets, fair value is determined by reference to the appropriate quoted market price at the reporting date. Active markets are those in which transactions occur in significant frequency and volume to provide pricing information on an ongoing basis; |
b) | Level 2 – If there is no active market, fair value is established using valuation techniques, including discounted cash flow models. The inputs to these models are taken from observable market data where possible, including recent arm’s length market transaction and comparisons to the current fair value of similar instruments, but where this is not feasible, inputs such as liquidity risk, credit risk and volatility are used; and |
c) | Level 3 – Valuation in this level are made with inputs other than observable market data. |
Cash and cash equivalents are classified as Level 1. The warrant derivative financial liability has been valued using level 3 inputs from the fair value hierarchy. The convertible debentures have been valued using Level 1 input.
Financial instrument risk exposure
The Company’s activities expose it to a variety of financial risks: market risk (including price risk, currency risk and interest rate risk), credit risk, and liquidity risk. These risks arise from the normal course of operations and all transactions are undertaken to support the Company’s ability to continue as a going concern. Risk management is carried out by management under policies promulgated by the Board of Directors. The Company’s overall risk management program seeks to minimize potential adverse effects on the Company’s financial performance.
Financial instrument risk exposure
Credit Risk
Credit risk is the risk that one party to a financial instrument will fail to discharge an obligation and cause the other party to incur a financial loss. Financial instruments that potentially subject the Company to credit risk are primarily cash and accounts receivable. Each subsidiary places its cash with one major financial institution. At times, the cash in the financial institution is temporarily more than the amount insured by the Federal Deposit Insurance Corporation. Substantially all accounts receivable is due under fee-for-service contracts from third party payors, such as insurance companies and government-sponsored healthcare programs, directly from patients, or for rebates due from manufacturers. Receivables generally are collected within industry norms for third-party payors and from manufacturers. The Company continuously monitors collections from its clients and maintains an allowance for bad debts based upon any specific payor collection issues that are identified and historical experience.
As at September 30, 2019 and September 30, 2018, Company does have more than 10% of receivables through Medicare. As this is a Federal program, there is very little credit risk associated with these balances.
Currency risk
Currency risk is the risk that the Company will be subject to foreign currency fluctuations in satisfying obligations related to its foreign activities.
34
PROTECH HOME MEDICAL CORP. |
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS |
September 30, 2019 and 2018 |
(Tabular dollar amounts expressed in thousands of Canadian Dollars, except per share amounts) |
16. | Financial instruments (continued) |
Currency risk (continued)
Although the Company uses the Canadian dollar as its reporting currency, it realizes 100% of its sales and makes most purchases in US dollars, therefore subjecting the Company to constant foreign exchange exposure. The Company monitors and forecasts the values of statement of financial position exposures and from time to time could authorize the use of derivative financial instruments, such as forward foreign exchange contracts to economically hedge a portion of foreign currency fluctuations. As the Company maintains nearly all its operating assets in the US, the foreign exchange risk is reporting only, not realized, therefore no exchange contracts have been deemed appropriate.
Based on the above net exposure at September 30, 2019 and September 30, 2018, depreciation or appreciation of the US dollar against the Canadian dollar would result in an insignificant effect in net loss. The Company has not employed any currency hedging programs during the years ended September 30, 2019 and 2018.
The following are the values of financial instruments denominated in US dollars at year end:
As at September 30,
2019 |
As at September 30,
2018 |
|||||||
Cash and cash equivalents | $ | 5,712 | $ | 3,336 | ||||
Accounts Receivable | $ | 9,357 | $ | 9,673 | ||||
Trade Payables and Accrued Liabilities | $ | 7,842 | $ | 6,375 | ||||
Debt | $ | 8,772 | $ | 10,741 |
Liquidity risk
Liquidity risk is the risk that the Company will not be able to meet its financial obligations as they become due. The Company’s approach in managing liquidity is to ensure, to the extent possible, that it will have sufficient liquidity to meet its liabilities when due by continuously monitoring actual and budgeted cash flows and monitoring financial market conditions for signs of weakness.
As of September 30, 2019, the Company faces no material liquidity risk and can meet all its current financial obligations as they become due and payable. The Company has $18,968,000 liabilities that are due within one year but has $30,783,000 of current assets to meet those obligations.
Interest rate risk
Interest rate risk is the risk that the future cash flows of a financial instrument will fluctuate because of changes in market interest rates. Interest rate risk is limited to potential decreases on the interest rate offered on cash and cash equivalents held with Chartered Canadian and registered US financial institutions. The Company considers this risk to be immaterial. The interest on the debenture is not subject to cash flow interest rate risk as these instruments bear interest at fixed rates.
17. | (Loss) income per share |
(Loss) income per common share is calculated using the weighted average number of common shares outstanding during the period. Diluted (loss) income per share amounts are calculated giving effect to the potential dilution that would occur if securities or other contracts to issue common shares were exercised or converted to common shares by assuming the proceeds received from the exercise of stock options and warrants are used to purchase common shares at the prevailing market rate. Dilutive amounts are not presented when affect of computation is anti-dilutive due to losses incurred. Accordingly, there is no difference in the amounts presented for basic and diluted loss per share.
35
PROTECH HOME MEDICAL CORP. |
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS |
September 30, 2019 and 2018 |
(Tabular dollar amounts expressed in thousands of Canadian Dollars, except per share amounts) |
17. | (Loss) income per share (continued) |
The following reflects the earnings and share data used in the basic and diluted loss per share computations:
Year ended | Year ended | |||||||
September 30, 2019 | September 30, 2018 | |||||||
Net loss after taxes from continuing operations | $ | (9,141 | ) | $ | (8,459 | ) | ||
Net income after taxes from discontinued operations | $ | 1,755 | $ | 27,206 | ||||
Basic weighted average number of shares | 82,860 | 75,757 | ||||||
Diluted weighted average number of shares | 82,860 | 80,744 | ||||||
Basic – continuing operations | $ | (0.11 | ) | $ | (0.11 | ) | ||
Basic – discontinued operations | $ | 0.02 | $ | 0.36 | ||||
Diluted – continuing operations | $ | (0.11 | ) | $ | (0.10 | ) | ||
Diluted - discontinued operations | $ | 0.02 | $ | 0.34 |
The outstanding warrants and stock options whose effect were anti-dilutive were excluded from the calculation of the diluted (loss) income per share for the years ended September 30, 2019 and 2018.
18. | Related party transactions |
On October 1, 2015, the Company entered into four market rate, seven-year, operating leases for office, warehouse, and retail space with a rental Company affiliated with the Company’s Chief Executive Officer. The leases, for six different locations, have a combined area of approximately 74,520 square feet. Rental payments under this lease agreement are approximately US$52,000 per month, plus taxes, utilities and maintenance. The expense has been recorded as selling, general and administrative expenses. The Company also paid
$1,853,000 representing taxes, penalties and interest on behalf of the Chief Executive Officer. This was due to various tax expenses incurred as a result of a section 338(h)(10) tax election that was made for one of the past acquisitions.
Payments of $236,166 and $178,965 were made to the board for years ended September 30, 2019 and 2018, respectively.
Key management personnel also participate in the Company’s share option program (see Note 12). The Company paid or accrued compensation to key management personnel the following:
Year ended | Year ended | |||||||
September 30, 2019 | September 30, 2018 | |||||||
Salaries and Benefits | $ | 1,559 | $ | 1,073 | ||||
Stock-based compensation (Note 12) | 858 | 1,614 | ||||||
Total | $ | 2,417 | $ | 2,687 |
Salaries and benefits above include bonuses of $519,000 paid to management for successful completion of fund raise through convertible debentures.
On May 10, 2019, the Company entered into a secured loan agreement with one of the Company’s shareholders for $2,600,000. The loan bore interest at prime rate to be paid out semi-annually commencing on June 2019 and thereafter on every June 30 and December 31. The loan was to mature on May 10, 2021; however, it was fully repaid before year end.
36
PROTECH HOME MEDICAL CORP. |
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS |
September 30, 2019 and 2018 |
(Tabular dollar amounts expressed in thousands of Canadian Dollars, except per share amounts) |
19. | Discontinued Operations |
a) | Patient Home Monitoring, Inc. |
On July 29, 2019, the Company sold the assets of Patient Home Monitoring, Inc. For the years ended September 30, 2019 and 2018, Patient Home Monitoring, Inc. was classified as a discontinued operation.
The major classes of assets and liabilities of Patient Home Monitoring, Inc. classified as held for distribution as at September 30, 2018 are as follows:
Year Ended | ||||
September 30, 2019 | ||||
Accounts receivable | $ | 1,668 | ||
Inventory | 374 | |||
Fixed assets | 890 | |||
Assets disposed | 2,932 | |||
Proceeds from sale | 4,454 | |||
Gain on sale of business | $ | 1,522 |
Net income on discontinued operations, net of income taxes, is as follows:
Year ended
|
Year ended
|
|||||||
Revenue | $ | 3,418 | $ | 6,349 | ||||
Cost of revenue | 528 | 1,612 | ||||||
Gross margin | 2,890 | 4,737 | ||||||
Expenses: | ||||||||
Selling, general and administrative | 2,279 | 2,808 | ||||||
Depreciation | 377 | 437 | ||||||
Income tax expense | 1 | - | ||||||
Net income from discontinued operations | $ | 233 | $ | 1,492 |
37
PROTECH HOME MEDICAL CORP. |
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS |
September 30, 2019 and 2018 |
(Tabular dollar amounts expressed in thousands of Canadian Dollars, except per share amounts) |
19. Discontinued Operations (continued)
b) | Viemed |
On December 21, 2017, the Company received shareholder approval on the Asset and Share Purchase Agreements as well as an Arrangement Agreement with Viemed.
The Arrangement involving Viemed, a newly incorporated Company, was completed after a shareholder vote, as of the close of business on December 21, 2017. Under this Arrangement agreement, all shareholders of the Company received one new PHM common share (a “New PHM Share”) and one-tenth (1/10) of one common share of Viemed (a “Viemed Share”) for each common share of PHM held by such Shareholder immediately prior to the completion of the Arrangement. Also in connection with the Arrangement, (a) for each stock option of PHM held, each option holder that remains employed or engaged by PHM received one option to purchase one New PHM Share (a “New PHM Option”) and PHM option holders employed or engaged by Viemed received one New PHM Option (which expired three months following the completion of the Arrangement) and one tenth (1/10) of one option to purchase from Viemed one Viemed Share, and (b) for each common share purchase warrant of PHM held, each warrant holder received one warrant to purchase from PHM one New PHM Share (a “New PHM Warrant”) and one tenth (1/10) of one warrant to purchase from Viemed one Viemed Share. The New PHM Options were issued pursuant to the PHM stock option plan which was approved by Shareholders at an annual and special meeting of Shareholders held on December 15, 2017. At the meeting, the Shareholders also approved the adoption of a restricted share unit and deferred share unit plan. Pursuant to the PHM stock option plan and restricted share unit and deferred share unit plan, PHM may reserve up to an aggregate of 75,819,279 PHM Shares pursuant to awards granted under the plans.
Upon completion of the Arrangement and at the time of listing, PHM had a total of 379,096,396 Common Shares, 26,005,058 common share purchase warrants and 17,906,179 stock options, 8,388,978 of which held by option holders employed or engaged by Viemed that expired on March 21, 2018. The New PHM Shares commenced trading on the TSX Venture Exchange (the “TSXV”) on December 22, 2017 under the stock symbol “PHM”, and PHM’s outstanding 7.5% non-convertible unsecured subordinated debentures maturing on December 31, 2019, continued to trade under the symbol “PHM.DB”. See Note 10 on the early satisfaction of the debentures.
The Company accounted for the distribution in accordance with IFRS 17, Distribution of Non-Cash Assets to Owners, which required the assets being distributed to be recognized at fair value. The Company used significant judgement related to the fair value measurement of assets and liabilities distributed pursuant to the Arrangement. The estimates required management to exercise judgement concerning valuation approaches and methods, estimates of future cash flows, and discount rates. The distribution amount being the fair value of Viemed of $93,290,000 was set up as a distribution liability with a corresponding charge to deficit and accumulated comprehensive (loss) income.
The assets and liabilities which were distributed to the Company’s shareholders in connection with the spin-off of Viemed on December 21, 2017 pursuant to the Arrangement, comprised of cash of $7,856,000, accounts receivable of $11,811,000, prepaid and other assets of $2,829,000, property and equipment of $27,323,000, intangibles of $18,761,000, goodwill of $18,005,000 accounts payable and accrued liabilities of $8,390,000 and capital lease payables of $6,608,000. Total carrying value of net assets distributed on spin off was $71,587,000. A net gain of $21,509,000 was recorded on the spin-out after considering transaction expenses.
38
PROTECH HOME MEDICAL CORP. |
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS |
September 30, 2019 and 2018 |
(Tabular dollar amounts expressed in thousands of Canadian Dollars, except per share amounts) |
19. | Discontinued Operations (continued) |
c) | Viemed |
Net income on discontinued operations, net of income taxes, is as follows:
Year ended
September 30, 2018 |
||||
Revenue | $ | 15,005 | ||
Cost of revenue | 1,216 | |||
Gross margin | 13,789 | |||
Expenses: | ||||
Selling, general and administrative | 8,055 | |||
Depreciation | 815 | |||
Amortization | 616 | |||
Other expense | 113 | |||
Income tax expense | (15 | ) | ||
Net income from discontinued operations | $ | 4,205 |
20. | Subsequent Events |
Cooley Medical Equipment, Inc.
Effective October 1, 2019, the Company, through one of its indirect wholly-owned subsidiaries, PHM Logistics, entered into a purchase agreement to acquire Cooley Medical Equipment, Inc. (“Cooley”), a Kentucky Company and participating Medicare provider that provides i) nebulizers, oxygen concentrators, and CPAP and BiPAP units; ii) traditional and non-traditional durable medical respiratory equipment and services; and iii) non-invasive ventilation equipment, supplies and services. The purchase price was US$2,514,000, of which the Company paid cash at closing of US$2,333,000. There is a holdback of US$181,000 which will be payable 18 months after the agreement was signed.
Pro forma Cooley revenues and net loss had the acquisition occurred October 1, 2018 were US$7,180,000 and US$(1,312,000), respectively. The Company is in the process of gathering the information required to allocate the purchase price to the acquired tangible and intangible assets as of the acquisition date.
Acadia Medical Supply, Inc.
Effective December 1, 2019, the Company, through one of its indirect wholly-owned subsidiaries, PHM Logistics, entered into a purchase agreement to acquire Acadia Medical Supply, Inc. (“Acadia”), a Maine Company and participating Medicare provider that provides i) power mobility equipment, vehicle lifts, nebulizers, oxygen concentrators, and CPAP and BiPAP units; (ii) traditional and non-traditional durable medical equipment respiratory and durable medical equipment and services; and (iii) non-invasive ventilation equipment and supplies. The purchase price was US$1,750,000, of which the Company paid cash at closing of US$1,004,000. There is a holdback of US$600,000 of which US$100,000 will be payable 90 days after the
39
PROTECH HOME MEDICAL CORP. |
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS |
September 30, 2019 and 2018 |
(Tabular dollar amounts expressed in thousands of Canadian Dollars, except per share amounts) |
20. | Subsequent Events (continued) |
close date and US$250,000 on each of the one-year anniversary of the closing date and the two-year anniversary of the closing date. Pro forma Acadia revenues and net income had the acquisition occurred October 1, 2018 were US$3,195,000 and US$313,000, respectively. The Company is in the process of gathering the information required to allocate the purchase price to the acquired tangible and intangible assets as of the acquisition date.
21. | Comparative information |
In order to enhance the presentation of the consolidated Statements of (loss) income and comprehensive (loss) income allowing for a user of the statements to more readily identify key measures important in the understanding of the business, certain figures have been reclassified to conform to the current year presentation. The Company made reclassification of comparative information relating to discontinued operations. See Note 19 for details.
40
Exhibit 99.2
Year End 2019 | |
Management’s Discussion and Analysis
|
Protech Home Medical Corp. |
|
MANAGEMENT’S
DISCUSSION AND ANALYSIS
September 30, 2019 and 2018 (Dollar amounts expressed in thousands, except per share amounts) |
The following Management’s Discussion and Analysis (“MD&A”) of the financial condition and results of operations of Protech Home Medical Corp., formerly Patient Home Monitoring Corp. and its subsidiaries (“PHM” or the “Company”), prepared as of January 20, 2019 and should be read in conjunction with the consolidated financial statements for the year ended September 30, 2019, including the notes therein. The consolidated financial statements have been prepared in accordance with International Financial Reporting Standards (“IFRS”). Unless otherwise specified, all financial data is presented in Canadian dollars. The words “we”, “our”, “us”, “Company”, and “PHM” refer to Protech Home Medical Corp. and/or the management and employees of the Company.
Additional information relevant to the Company is available for review on SEDAR at www.sedar.com.
Table of Contents
Page 2 | Caution Regarding Forward-Looking Statements |
Page 3 | Selected Annual Information |
Page 4 | About Our Business and Operating Results |
Page 9 | Financial Position |
Page 12 | Accounting and Disclosure Matters |
Page 15 | Financial Instruments and Risk Management |
Page 16 | Risk Factors |
CAUTION REGARDING FORWARD-LOOKING STATEMENTS
Information included or incorporated by reference in this report may contain forward-looking statements. This information may involve known and unknown risks, uncertainties, and other factors which may cause our actual results, performance, or achievements to be materially different from the future results, performance, or achievements expressed or implied by any forward-looking statements. Forward-looking statements, which involve assumptions and describe our future, strategies, and expectations, are generally identifiable by use of the words “may,” “will,” “should,” “expect,” “anticipate,” “estimate,” “believe,” “plan,” “intend” or “project” or the negative of these words or other variations on these words or comparable terminology. Readers are cautioned regarding statements discussing profitability; growth strategies; anticipated trends in our industry; our future financing plans; and our anticipated needs for working capital. Actual events or results may differ materially from those discussed in forward- looking statements. There can be no assurance that the forward-looking statements contained in this report will in fact occur. The Company bases its forward-looking statements on information currently available to it and assumes no obligation to update them.
THE FORWARD-LOOKING INFORMATION CONTAINED IN THIS MD&A PRESENTS THE EXPECTATIONS OF THE COMPANY AS OF THE DATE OF THIS MD&A AND, ACCORDINGLY, IS SUBJECT TO CHANGE AFTER SUCH DATE. READERS SHOULD NOT PLACE UNDUE IMPORTANCE ON FORWARD-LOOKING INFORMATION AND SHOULD NOT RELY UPON THIS INFORMATION AS OF ANY OTHER DATE. WHILE THE COMPANY MAY ELECT TO, THE COMPANY DOES NOT UNDERTAKE TO UPDATE THIS INFORMATION AT ANY PARTICULAR TIME EXCEPT AS REQUIRED BY APPLICABLE SECURITIES LEGISLATION.
Page | 2 |
|
MANAGEMENT’S
DISCUSSION AND ANALYSIS
September 30, 2019 and 2018 (Dollar amounts expressed in thousands, except per share amounts) |
FISCAL 2019 HIGHLIGHTS
These results reflect the Company’s divesture of the business and assets of Patient Home Monitoring, Inc. (“PHM”) and PHM’s financial results are reported as ‘discontinued operations’ in both fiscal 2019 and fiscal 2018.
® | Increased Adjusted EBITDA by approximately $4,200 compared to 2018 due to integration efforts to standardize regional processes and operations, including improving product mix, sales practices, and billing practices, as well as the acquisition of two businesses. |
® | Successfully completed two financing transactions that improved the Company’s liquidity and lowered its long- term debt net of cash by over $4,000. |
® | Completed two acquisitions and one divestiture during 2019 and two additional acquisitions in the first quarter of fiscal 2020 as part of its acquisition strategy and to increase its geographic footprint, while disposing of a non- core asset. |
® | Increased the number of equipment deliveries, shipments and set-ups 13,227, an increase of 7% compared to 2018. An increased number of respiratory setups and shipments by 6,460, an increase of 15% compared to 2018. |
® | Increase of gross profit margin from 69% to 71% in 2019, as a result of integrating purchasing and increasing volume of shipments and patients, and better product mix. |
SELECTED ANNUAL INFORMATION
For the years ended | ||||||||
September 30, 2019 | September 30, 2018 | |||||||
Unique patients | 76,146 | 69,500 | ||||||
Number of equipment set-ups or deliveries | 207,762 | 194,535 | ||||||
Respiratory resupply set-ups or deliveries | 46,639 | 40,597 | ||||||
Revenue | $ | 80,967 | $ | 70,514 | ||||
Gross margin | $ | 57,440 | $ | 48,777 | ||||
Gross margin % | 71 | % | 69 | % | ||||
Adjusted EBITDA(1) | $ | 14,801 | $ | 10,634 | ||||
Cash | $ | 12,855 | $ | 4,331 |
(1) Refer to page four for definition of Adjusted earnings before interest, taxes, depreciation, and amortization (“EBITDA”)
The words “we”, “our”, “us”, “Company”, and “PHM” refer to Protech Home Medical Corp. and/or the management and employees of the Company.
Page | 3 |
|
MANAGEMENT’S
DISCUSSION AND ANALYSIS
September 30, 2019 and 2018 (Dollar amounts expressed in thousands, except per share amounts) |
ABOUT OUR BUSINESS
PHM business objective
The explosive growth in the number of elderly patients in the US healthcare market is creating pressure to provide more efficient delivery systems. Healthcare providers, such as hospitals, physicians and pharmacies, are seeking partners that can offer a range of products and services that improve outcomes, reduce hospital readmissions and help control costs. PHM fills this need by delivering a growing number of specialized products and services to achieve these goals. PHM seeks to provide an ever-expanding line of products and services over larger geographic regions within the United States using several growth strategies.
Future Outlook
PHM expects to generate net profit and positive adjusted EBITDA, excluding IFRS treatment of non-cash items. Our top priority continues to be the generation of operational net profit, positive cash flow, and positive EBITDA in fiscal year 2020 and beyond. As we continue to expand in our existing markets, we plan to leverage our business platforms to enter new markets. As we continue to grow and achieve scale, the increasing cash generated from operations will be used to market our service and to gain market share. Our continued integration and rationalization, as well as our acquisitions, have given us a focus and path towards profitability at each business unit.
Going forward, we seek to find ways to continue to grow our customer base and penetrate these markets, while continuing to streamline our operational platform and generate positive cash flow and operational profits. We will continue to improve on operational efficiencies and call center management as they are key execution points in order to maintain our healthy gross margin while growing revenues via the cross selling of services to existing and acquired patients.
OPERATING RESULTS
Accounting policies and estimates
The consolidated financial statements for the year ended September 30, 2019 are prepared under International Financial Reporting Standards (“IFRS”) issued by the governing body of the International Accounting Standards Board (“IASB”). The preparation of consolidated financial statements in conformity with IFRS requires management to make estimates and assumptions. These estimates and assumptions affect the reported amounts of assets and liabilities, disclosures of contingent assets and liabilities, and the reported amounts of revenues and expenses for the period of consolidated financial statements.
IFRS accounting treatment
Management does not rely upon non-cash IFRS accounting treatment of certain items such as impairment of goodwill and intangible assets, changes in the fair value of financial derivatives, stock-based compensation and amortization of intangible assets when planning, monitoring, and evaluating the Company’ s performance or in making financial decisions.
Non-IFRS measures
Throughout this MD&A, references are made to several measures which are believed to be meaningful in the assessment of the Company’ s performance. These metrics are non-standard measures under IFRS and may not be identical to similarly to it led measures reported by other companies. Also, in the future, we may disclose different non- IFRS financial measures in order to help our investors more meaningfully evaluate and compare our future results of operations to our previously reported results of operations. Readers are cautioned that the disclosure of these items is meant to add to, and not replace, the discussion of financial results as determined in accordance with IFRS. The primary purpose of these non-IFRS measures is to provide supplemental information that may prove useful to investors who wish to consider the impact of certain non-cash or uncontrollable items on the Company’s operating performance.
EBITDA and Adjusted EBITDA
In calculating EBITDA and adjusted EBITDA certain items (mostly non-cash) are excluded from net loss including interest, taxes, depreciation, amortization, (gain)/loss on derivative financial liability, stock-based compensation and goodwill and intangible asset impairment charges. Set forth below are descriptions of the financial items that have been excluded from net income or loss to calculate EBITDA and Adjusted EBITDA and the material limitations associated with using these non-IFRS financial measures as compared to net income or loss.
- | Depreciation and amortization expense may be useful for investors to consider because they generally represent the wear and tear on our property and equipment used in our operations and amortization of intangibles valued in purchase accounting. However, we do not believe these charges necessarily reflect the current and ongoing cash charges related to our operating costs. |
Page | 4 |
|
MANAGEMENT’S
DISCUSSION AND ANALYSIS
September 30, 2019 and 2018 (Dollar amounts expressed in thousands, except per share amounts) |
- | The amount of interest expense we incur or interest income we generate may be useful for investors to consider and may result in current cash inflows or outflows. Accretion expense is the expense related to the value of the old derivatives the Company had in place. The Company paid off the debenture early, which was due December 2019. | |
- | However, we do not consider the amount of interest expense, interest income or accretion expense to be a representative component of the day-to-day operating performance of our business. | |
- | Gain/loss on derivative financial liability may be useful for investors to consider as it represents changes in the fair value of warrants and exchangeable shares of subsidiaries, driven predominantly by changes in the Company’s stock price and exchange rates. These changes are non-cash, as is the settlement of the underlying derivative liability, which occurs upon the conversion of the derivative instrument into PHM stock. | |
- | Change in fair market value of the debenture is recorded at each quarter end. This is the change in value of the new debenture since its issuance in March 2019. | |
- | Loss on early extinguishment of debenture is the loss incurred from the early payoff of the debenture due December 2019 but paid in May 2019. | |
- | Income tax expense may be useful for investors to consider because it generally represents the taxes which may be payable for the period and the change in deferred income taxes and may reduce the amount of funds otherwise available for use. However, we do not consider the amount of income tax expense to be a representative component of the day-to-day operating performance of our business. | |
- | Stock-based compensation may be useful for investors to consider because it is an estimate of the non-cash component of compensation received by the Company’s directors, officers, employees and consultants. However, stock-based compensation is being excluded from the Company’ s operating expenses because the decisions which gave rise to these expenses were not made to increase revenue in a particular period but were made for the Company’ s long-term benefit over multiple periods. While strategic decisions, such as those to issue stock-based awards are made to further the Company’ s long-term strategic objectives and do impact the Company’s earnings under IFRS, these items affect multiple periods and management is not able to change or affect these items within any period. | |
- | Goodwill and intangible asset impairment may be useful for investors to consider because it represents a write-down in the value of goodwill and intangible assets acquired in business combinations. Intangible assets are recognized upon business combinations at their fair value based on expected future cash flows. Goodwill arises as a result of the difference in the purchase price of a business and the fair value of the underlying identifiable tangible and intangible assets. Goodwill and intangible asset impairment charges arise when the present value of forecasted cash flows is insufficient to support the carrying value of net assets. However, impairment charges are non-cash as they relate to an adjustment of the carrying value of an intangible asset or goodwill on the balance sheet. | |
- | Gain/loss disposal of business represents the gain/loss on the sale or spin out of the entities. These changes are non- cash, as is the settlement of the underlying net assets sold. | |
- | Acquisitions related expense for 338(h) election represents taxes that the Company had to pay in the current fiscal year that related to historical acquisition. | |
- | Transaction costs were recorded in the fiscal year due to the issuance of new debentures, classified as fair value through profile/loss. All these costs were recorded directly to the income statement. | |
- | Due to a cyber-scam occurrence in early 2019, there was a fraudulent intrusion into the Company’s email system and funds were misappropriated to a wrong bank account. See further detail in the contingency section for reference. |
Management uses both IFRS and non-IFRS measures when planning, monitoring, and evaluating the Company’s performance.
The following table of adjusted EBITDA show our IFRS measures reconciled to EBITDA (non-IFRS measure) for the indicated periods. The table of net (loss) income is also measured based on IFRS. Both the tables are shown net of discontinued operations (Patient Home Monitoring, Inc. – 2019, Viemed – 2018). Discontinued operations are comprised of the earnings after tax of discontinued operations until divestiture and the gain or loss after tax on sale or fair value measurement, less costs to sell.
Page | 5 |
|
MANAGEMENT’S
DISCUSSION AND ANALYSIS
September 30, 2019 and 2018 (Dollar amounts expressed in thousands, except per share amounts) |
Years Ended | ||||||||
September 30, 2019 | September 30, 2018 | |||||||
Net loss from continuing operations | $ | (9,141 | ) | $ | (8,459 | ) | ||
Add back: | ||||||||
Depreciation and amortization | 13,969 | 15,096 | ||||||
Interest expense | 2,509 | 1,906 | ||||||
Transaction costs related to debenture issuance | 1,758 | - | ||||||
Change in fair market value of debenture | (1,034 | ) | - | |||||
Loss on early extinguishment of debenture | 1,107 | - | ||||||
Gain on financial derivative | (95 | ) | (167 | ) | ||||
Provision for income taxes | 269 | 130 | ||||||
EBITDA | $ | 9,342 | $ | 8,506 | ||||
Stock-based compensation | 2,063 | 2,128 | ||||||
Loss from cyber incident | 1,012 | - | ||||||
Acquisition related costs | 1,853 | - | ||||||
Impairment of goodwill | 531 | - | ||||||
Adjusted EBITDA | $ | 14,801 | $ | 10,634 |
Years Ended | ||||||||
September 30, 2019 | September 30, 2018 | |||||||
Revenue | $ | 80,967 | $ | 70,514 | ||||
Cost of revenue | 23,527 | 21,737 | ||||||
Gross margin | $ | 57,440 | $ | 48,777 | ||||
Gross margin % | 71 | % | 69 | % | ||||
Selling, general and administrative | 42,582 | 38,401 | ||||||
Depreciation | 13,366 | 14,475 | ||||||
Amortization of intangible assets | 603 | 621 | ||||||
Stock-based compensation | 2,063 | 2,128 | ||||||
Impairment of goodwill | 531 | - | ||||||
Loss from cyber incident | 1,012 | - | ||||||
Acquisition related costs | 1,853 | - | ||||||
Transaction costs related to debenture issuance | 1,758 | - | ||||||
Change in fair market value of debenture | (1,034 | ) | - | |||||
Loss on early extinguishment of debenture | 1,106 | - | ||||||
Other expense | 77 | 15 | ||||||
Gain on disposal of property and equipment | (20 | ) | (273 | ) | ||||
Interest expense, net of income | 2,509 | 1,906 | ||||||
Gain on derivative financial liability | (95 | ) | (167 | ) | ||||
Provision for income taxes | 269 | 130 | ||||||
Net loss from continuing operations after taxes and before discontinued operations | (9,141 | ) | (8,459 | ) | ||||
Income from discontinued operations | 1,755 | 27,206 | ||||||
Net (loss) income after taxes | $ | (7,386 | ) | $ | 18,747 | |||
(Loss) income per share | ||||||||
Basic - continuing operations | $ | (0.11 | ) | $ | (0.11 | ) | ||
Basic - discontinued operations | $ | 0.02 | $ | 0.36 | ||||
Diluted - continuing operations | $ | (0.11 | ) | $ | (0.10 | ) | ||
Diluted - discontinued operations | $ | 0.02 | $ | 0.34 |
Page | 6 |
|
MANAGEMENT’S
DISCUSSION AND ANALYSIS
September 30, 2019 and 2018 (Dollar amounts expressed in thousands, except per share amounts) |
Revenue
For the year ended September 30, 2019, revenue totaled $80,967, an increase of $10,453, or 15%, compared to the year ended September 30, 2018. The increase in revenues from 2018 to 2019 is due to the Company’s integration efforts in fiscal 2019 to standardize regional processes and operations including, to various degrees, changing product focus, product mix, sales practices, billing practices, ordering practices, and recurring operational protocols, as well as the acquisition of two businesses in the first quarter of fiscal year 2019, which added approximately $1,400.
Cost of revenue and gross margin
For the year ended September 30, 2019, cost of revenue totaled $23,527 and gross margin was $57,440, versus $21,737 and $48,777, respectively, during the year ended September 30, 2018. Gross margin percent increased from 69% to 71%. The gross margin improvement during the period were mostly driven by the better mix of higher gross margin rental revenue, consolidation of vendor accounts to secure pricing and terms across all companies, and better ordering models throughout the company to only order when necessary or ordering certain inventory items at the time where a better cost is given by vendors.
Selling, general & administrative expense
For the year ended September 30, 2019, total selling, general and administrative expenses were $42,582, an increase of $4,181 from $38,401 for the year ended September 30, 2018. The increases across the business were primarily due to the acquisitions of two businesses of approximately $1,100, higher payroll expenses to support the revenue growth, and higher bad debt expense commensurate with the revenue growth.
Stock-based compensation
For the year ended September 30, 2019, there is an expense for the stock-based compensation of $2,063 compared to an expense for the stock-based compensation of $2,128 for the year ended September 30, 2018.
Interest expense
Interest expense increased $636 for the year ended September 30, 2019 compared to 2018 as a result of the new debentures issued during 2019 having a higher face value and interest rate as compared to the debentures that were repaid. The Company paid off the unsecured debentures of $8.625 million bearing an interest rate of 7.5% in early May 2019. The Company issued new debentures on March 7, 2019 for $15.0M, bearing an interest rate of 8.0%. The remainder of the Company's interest expense is due to financial capital leases bearing an interest rate between 0% to 11.5%.
Impairment of goodwill
Goodwill and intangible asset impairment expense increased to $531 for the year ended September 30, 2019 as compared to $0 during the year ended September 30, 2018. The increase is due to the goodwill impairment related to the new acquisition of Central Oxygen, Inc, which was purchased on October 31, 2018.
Loss on cyber incident
In March 2019, the Company experienced an unlawful and undiscovered intrusion into its email system, which resulted in fraudulent banking information being relayed regarding the transfer of funds on April 30, 2019 to satisfy the then outstanding debentures. The intruder was able to mislead certain parties with inaccurate requests and instructions and in doing so, caused the funds of approximately $9,200 to be transferred into an account of a criminal third party outside North America. The fraud was uncovered on May 3, 2019, and the Company took immediate action to stop or undo the transfer and simultaneously started action to recover the amounts transferred. The Company has successfully retrieved approximately $8,600 of the funds and is in process of enforcing a court order to have the rest of the funds returned. The net loss and the legal fees incurred to recover the funds is reflected as “fraud-related expenses” on the statement of operations.
Acquisition related costs
The Company paid various taxes, penalties and interest as a result of a section 338(h)(10) tax election that was made after the purchase of Patient Aids, Inc. As of September 30, 2019, the amount was $1,853.No expenses were incurred for the year ended September 30, 2018.
Page | 7 |
|
MANAGEMENT’S
DISCUSSION AND ANALYSIS
September 30, 2019 and 2018 (Dollar amounts expressed in thousands, except per share amounts) |
Gain on fair value of debenture
The debenture issued during 2019 were valued at fair value using the current trading price, with the movement in fair market value since issuance date being recorded as gain of $1,034 and $0 as of September 30, 2019 and 2018, respectively.
Gain (loss) on financial derivative liabilities
For the year ended September 30, 2019, the derivative gain was the result of the warrant related to the old debenture expiring in August 2019.
Plan of Arrangement
An Arrangement involving Viemed, a newly incorporated company was completed after a shareholder vote, as of close of business on December 21, 2017. Under this Arrangement agreement, all shareholders received one new PHM common share (a “New PHM Share”) and one-tenth (1/10) of one common share of Viemed (a “Viemed Share”) for each common share of PHM held by such Shareholder immediately prior to the completion of the Arrangement. Also in connection with the Arrangement, (a) for each stock option of PHM held, each option holder that remains employed or engaged by PHM received one option to purchase one New PHM Share (a “New PHM Option”) and PHM option holders employed or engaged by Viemed received one New PHM Option (which expired three months following completion of the Arrangement) and one tenth (1/10) of one option to purchase from Viemed one Viemed Share, and (b) for each common share purchase warrant of PHM held, each warrant holder received one warrant to purchase from PHM, one New PHM Share (a “New PHM Warrant”) and one tenth (1/10) of one warrant to purchase from Viemed one Viemed Share. The New PHM Options were issued pursuant to the PHM stock option plan, which was approved by Shareholders at an annual and special meeting of Shareholders held on December 15, 2017. At the meeting, the Shareholders also approved the adoption of a restricted share unit and deferred share unit plan. Pursuant to the PHM stock option plan and restricted share unit and deferred share unit plan, PHM may reserve up to an aggregate of 75,819,279 PHM Shares pursuant to awards granted under the plans. Upon completion of the Arrangement and at the time of listing, PHM had a total of 379,096,396 Common Shares, 26,005,058 common share purchase warrants and 17,906,179 (8,388,978 of which held by option holders employed or engaged by Viemed that will expire on March 21, 2017) stock options outstanding.
The Company accounted for the distribution in accordance with IFRS 17, Distribution of Non-Cash Assets to Owners, which required the assets being distributed to be recognized at fair value. The Company used significant judgement related to the fair value measurement of assets and liabilities distributed pursuant to the Arrangement. The estimates required management to exercise judgement concerning valuation approaches and methods, estimates of future cash flows, and discount rates. The distribution amount being the fair value of Viemed of $93,290 was set up as a distribution liability with a corresponding charge to deficit and accumulated comprehensive income (loss).
The assets and liabilities which were distributed to the Company’s shareholders in connection with the spin-off of Viemed on December 21, 2017 pursuant to the Arrangement comprised of cash of $7,856, accounts receivable of $11,811, prepaid and other assets of $2,829, property and equipment of $27,323, intangibles of $18,761, goodwill of $18,005 accounts payable and accrued liabilities of $8,390 and capital lease payables of $6,608. Total carrying value of net assets distributed on spin off was $71,587. A net gain of $21,509 was recorded on the spin-out during 2018 after considering transaction expenses.
Page | 8 |
|
MANAGEMENT’S
DISCUSSION AND ANALYSIS
September 30, 2019 and 2018 (Dollar amounts expressed in thousands, except per share amounts) |
FINANCIAL POSITION
As at | As at | |||||||
September 30, 2019 | September 30, 2018 | |||||||
Cash | $ | 12.855 | $ | 4,331 | ||||
Accounts receivable, inventory and prepaid assets | 17,928 | 18,651 | ||||||
Property and equipment | 19,496 | 20,888 | ||||||
Other assets | 4,886 | 5,235 | ||||||
Total assets | $ | 55,165 | $ | 49,105 | ||||
Accounts payable and other current liabilities | $ | 18,969 | $ | 18,395 | ||||
Long term debt and other long-term liabilities | 17,047 | 11,440 | ||||||
Total Liabilities | $ | 36,016 | $ | 29,835 | ||||
Share capital | $ | 197,175 | $ | 193,951 | ||||
Deficit | (212,898 | ) | (206,054 | ) | ||||
Contributed surplus | 21,411 | 19,041 | ||||||
Accumulated other comprehensive income | 13,003 | 12,332 | ||||||
Shareholders’ equity | $ | 19,149 | $ | 19,270 |
Liquidity
Management considers liquid assets to consist of cash, accounts receivable and inventory as of September 30, 2019 and 2018, the Company had cash on hand of $12,855 and $4,331, respectively. The Company’s approach in managing liquidity is to ensure, to the extent possible, that it will have enough liquidity to meet its liabilities when due by continuously monitoring actual and budgeted cash flows and monitoring financial market conditions for signs of weakness.
As of September 30, 2019, the Company faces no material liquidity risk and can meet all its current financial obligations as they become due and payable. The Company has $18,969 liabilities that are due within one year but has $30,783 of current assets to meet those obligations. As of September 30, 2018, these same respective figures were $18,395 and $22,982.
Capital management
The Company considers its capital to be shareholders’ equity, which is comprised of share capital, contributed surplus, and accumulated other comprehensive income and deficit, which totaled $19,149 at September 30, 2019, along with long-term debt, which totaled $17,047 at September 30, 2019.
The Company raises capital, as necessary, to meet its needs and take advantage of perceived opportunities and, therefore, does not have a numeric target for its capital structure. Funds are primarily secured through equity capital, convertible debentures raised by way of private placements, and debt instruments.
On November 2, 2018, the Company completed a bought deal offering of 5,649,600 common shares of the Company at a price of $0.60 per share for aggregate gross proceeds to the company of $4,490. Issuance costs of $343 in cash were incurred. The Company also issued to the underwriter compensation options equal to 6.5% of the offered shares (1,836,120). Each compensation option is exercisable into one common share of the Company at the issue price for a period of 24 months from the closing of the offering. These shares are recorded as broker equity warrants at $0.60 per share. Along with this bought deal private placement, the Company also completed a previously announced non-brokered private placement of common shares of the Company at the issue price for gross proceeds to the Company of $1,100. A total of 1,833,333 common shares of the Company were sold pursuant to the non-brokered private placement to officers and directors.
Management reviews its capital management approach on an ongoing basis and believes that this approach, given the relative size of the Company, is reasonable.
The Company invests all capital that is surplus to its immediate operational needs in short-term, liquid and highly rated financial instruments, such as cash and short-term guarantee deposits, held with major Canadian and US financial institutions.
Page | 9 |
|
MANAGEMENT’S
DISCUSSION AND ANALYSIS
September 30, 2019 and 2018 (Dollar amounts expressed in thousands, except per share amounts) |
The Company had the following equity instruments outstanding at September 30, 2019 and September 30, 2018:
As at
September 30, 2019 (000’s) |
As at
September 30, 2018 (000’s) |
|||||||
Common shares | 83,589 | 75,819 | ||||||
Warrants | 519 | 358 | ||||||
Options | 11,759 | 9,804 |
As of September 30, 2019, the Company had 83,589 common shares outstanding. As of the spin off date of December 21, 2017, the PHM warrants and broker warrants were ceased to represent the right to acquire PHM shares and they were replaced with New PHM warrants and Viemed warrants which will represent the right, upon exercise thereof, to acquire, the number of new PHM shares and Viemed shares, respectively, that a PHM warrant holder would have been entitled to receive. The exercise price of the new PHM share pursuant to the new PHM warrants will be equal to the exercise price of the applicable PHM warrant or PHM broker warrant in effect prior to the effective date multiplied by the new PHM exercise price ratio.
Financing
Historically and currently, the Company has financed its operations primarily from cash flow from operations, finance leases, debentures, equity financing and through the issuance of shares to acquire businesses. On March 7, 2019, the Company issued $15,000 in 8.0% Convertible Unsecured Debentures due March 7, 2024. The debentures are convertible into common shares at $1.30/share. After three years, the Company can force conversion of the outstanding principal if the daily volume weighted average price of the common shares exceeds $1.62/share for twenty consecutive trading days. The debentures were valued at fair value using the current trading price, with a gain in fair market value being recorded of $1,034. In connection with the new debt issued, the Company issued broker warrants to purchase 519,231 common shares. Each warrant entitles the holder to purchase one common share of the Company at a price of $1.30 until March 7, 2024. The warrants were valued using Black- Scholes and are included as equity warrants. The transaction costs of $1,758 are fully expensed on the income statement.
Commitments
Finance Leases
Leases under which the Company assumes substantially all the risks and rewards of ownership are classified as finance leases. Upon initial recognition, the leased asset is measured at an amount equal to the lesser of its fair value and the present value of the minimum lease payments. The lease liability is drawn down over the life of the lease by allocating a portion of each lease payment to the liability with the remainder being recognized as finance charges. Leases that do not transfer the risks and rewards of ownership to the Company are treated as operating leases and are expensed as incurred. Future payments on these liabilities are as follows:
Less than 1 year | $ | 8,654 | ||
Between 1 and 4 years | 2,955 | |||
Total | $ | 11,609 |
Operating leases
The Company leases certain facilities under the terms of non-cancelable operating leases. Future payments pursuant to these commitments are as follows:
Less than 1 year | $ | 1,939 | ||
Between 1 and 4 years | 2,421 | |||
Total | $ | 4,360 |
Page | 10 |
|
MANAGEMENT’S
DISCUSSION AND ANALYSIS
September 30, 2019 and 2018 (Dollar amounts expressed in thousands, except per share amounts) |
Contingencies
The Company has been in litigation with Lightwater Long Short Fund (“Lightwater”) for the years ended September 30, 2019 and 2018. The litigation is due to Lightwater claiming damages for matters related to subscription agreements in a prior private placement. Management and legal believe that this lawsuit is without merit and is unpredictable. It is uncertain currently to determine the outcome of this lawsuit or our potential liability, if any.
In March 2019, the Company experienced an unlawful and undiscovered intrusion into its email system, which resulted in fraudulent banking information being relayed regarding the transfer of funds on April 30, 2019 to satisfy the then outstanding debentures. The fraud was uncovered on May 3, 2019, and the Company took immediate action to stop or undo the transfer and simultaneously started action to recover the amounts transferred. The Company has successfully retrieved $8,600 of the funds and is in process of enforcing a court order to have the rest of the $600 of funds returned. The net loss of $600 and the legal fees of $400 incurred to recover the funds is reflected as “loss from cyber incident” on the statement of income (loss) and comprehensive income.
The Company is included as a co-defendant, along with ten others in a litigation with the State of California regarding a violation of the California Insurance Prevention Act. The primary allegations are towards an unrelated entity and company is simply named a co-defendant because one or two prior officer and/or directors of the company were involved in the unrelated entity that is the primary co-defendant. The complaint alleges that the defendants violated the act by paying kickbacks in exchange for client referrals under the guise of so called bed vouchers or indigent scholarship costs, and by billing for addition recovery services that did not meet the minimum requirements put forth by the insurers as a precondition for reimbursement. The Company was not involved in the business of the unrelated entity that is a co-defendant and is contesting the allegations. It is too early in the litigation process to determine the outcome of this lawsuit or potential liability, if any.
Very recently a lawsuit was filed against the Company by an individual in the State of New Jersey. The complaint alleges that the defendants reused blood testing meters, resulting in fraudulent claims to the US government, and seeks damages for the unnecessary testing. The Company has denied the allegations of the complaint and is contesting the action. The company is going to file a motion to dismiss. The Company is already been approached by the Realtor’s counsel for an early settlement. It is too early in the litigation process to determine the outcome of this lawsuit or our potential liability, if any.
Quarterly operating results from continuing operations
Year ended September 30, 2019 | ||||||||||||||||
Quarter ended
Sep. 30, 2019 |
Quarter ended
Jun. 30, 2019 |
Quarter ended
Mar. 31,2019 |
Quarter ended
Dec. 31, 2018 |
|||||||||||||
Revenue | $ | 19,470 | $ | 20,164 | $ | 20,824 | $ | 20,509 | ||||||||
Net income (loss) from continuing operations | $ | 4,400 | $ | (12,564 | ) | $ | (591 | ) | $ | (386 | ) | |||||
Net income (loss) per share – continuing operations | $ | 0.046 | $ | (0.152 | ) | $ | (0.007 | ) | $ | (0.005 | ) | |||||
Total assets | $ | 55,165 | $ | 51,583 | $ | 70,049 | $ | 55,947 |
Year ended September 30, 2018 | ||||||||||||||||
Quarter ended
Sep. 30, 2018 |
Quarter ended
Jun. 30, 2018 |
Quarter ended
Mar. 31,2018 |
Quarter ended
Dec. 31, 2017 |
|||||||||||||
Revenue | $ | 18,041 | $ | 18,468 | $ | 17,117 | $ | 16,888 | ||||||||
Net income (loss) from continuing operations | $ | 679 | $ | (1,590 | ) | $ | (3,527 | ) | $ | (4,021 | ) | |||||
Net income (loss) per share – continuing operations | $ | 0.009 | $ | (0.021 | ) | $ | (0.047 | ) | $ | (0.053 | ) | |||||
Total assets | $ | 49,105 | $ | 47,453 | $ | 46,804 | $ | 48,593 |
Results of operations for the healthcare services market in which the Company operates show little seasonality from quarter to quarter. Below are some of the key items that had a significant impact on financial results over the last eight quarters.
The increase in revenues from 2018 to 2019 is due to the Company’s integration efforts in fiscal 2019 to standardize regional processes and operations including, to various degrees, changing product focus, product mix, sales practices, billing practices, ordering practices, and recurring operational protocols, as well as the acquisition of two businesses in the first quarter of fiscal year 2019, which added approximately $1,400.
Page | 11 |
|
MANAGEMENT’S DISCUSSION AND ANALYSIS September 30, 2019 and 2018 (Dollar amounts expressed in thousands, except per share amounts) |
Related party transactions
On October 1, 2015, the Company entered into four market rate, seven-year, operating leases for office, warehouse, and retail space with a rental company affiliated with the Company’s Chief Executive Officer. Later the company entered into two additional leases with the Company’s Chief Executive Officer . The leases, for six different locations, have a combined area of approximately 74,520 square feet. Rental payments under this lease agreement are approximately US$52 per month, plus taxes, utilities and maintenance. The expense has been recorded as selling, general and administrative expenses. The Company also paid $1,853 representing taxes, penalties and interest as a result of a section 338(h)(10) tax election that was made for one of the past acquisitions. Not all but a large portion of these amount was paid to Chief Executive Officer to reimburse for the taxes and expense incurred as result of the 338(h)(10) tax election, in accordance with the purchase agreement of the acquisition. The total expense related to the 338(h)(10) tax election of $1,853 is disclosed as a separate line item on the income statement.
Expenses of US$178 and US$138 related to the bonus and fees were paid to the board for years ended September 30, 2019 and 2018, respectively.
All transactions outstanding are unsecured and non-interest bearing.
Key management personnel also participate in the Company’s share option program (see Note 9). The Company paid or accrued compensation to key management personnel the following:
Year ended
September 30, 2019 |
Year ended
September 30, 2018 |
|||||||
Salaries and Benefits | $ | 1,559 | $ | 1,073 | ||||
Stock-based compensation (Note 9) | 858 | 1,614 | ||||||
Total | $ | 2,417 | $ | 2,687 |
Off balance sheet arrangements
The Company has no material undisclosed off-balance sheet arrangements that have or are reasonably likely to have, a current or future effect on its results of operations or financial condition.
ACCOUNTING AND DISCLOSURE MATTERS
Financial reporting controls
The Company is not required to certify the design and evaluation of its disclosure controls and procedures and internal controls over financial reporting and has not completed such an evaluation.
There were no substantive changes in the Company’ s disclosure controls and procedures and internal controls over financial reporting during the period ended September 30, 2019 that have materially affected, or are reasonably likely to materially affect, the Company’ s disclosure controls and procedures and internal controls over financial reporting.
Critical accounting estimates
The preparation of financial statements in conformity with IFRS requires management to make estimates and assumptions that affect the reported amounts of assets, liabilities, revenues and expenses and the disclosure of contingent assets and liabilities in the consolidated financial statements. We constantly evaluate these estimates and assumptions.
We base our estimates and assumptions on experience and other factors that are deemed reasonable under the circumstances. This involves varying degrees of judgment and uncertainty, thus the amounts currently reported in the consolidated financial statements could prove to be inaccurate in the future.
We consider the estimates and assumptions described in this section to be an important part in understanding the consolidated financial statements. These estimates and assumptions are subject to change, as they rely heavily on management’ s judgment and are based on factors that are inherently uncertain.
Revenue recognition
Revenue consists of net patient service revenue. Net patient service revenue is recognized at the time services are provided net of contractual adjustments based on an evaluation of expected collections resulting from the analysis of current and past due accounts, past collection experience in relation to amounts billed and other relevant information. Contractual adjustments result from the differences between the rates charged for services and reimbursements by government-sponsored healthcare programs and insurance companies for such services.
Page | 12
|
MANAGEMENT’S DISCUSSION AND ANALYSIS September 30, 2019 and 2018 (Dollar amounts expressed in thousands, except per share amounts) |
Accounts receivable
Accounts receivable are recorded at the time revenue is recognized and are presented on the balance sheet net of an allowance for doubtful accounts. It is possible that our estimates of the allowance for doubtful accounts could change, which could have a material impact on our operations and cash flows.
The Company will write-off receivables when the likelihood for collection is remote, the receivables have been fully reserved, and when the Company believes collection efforts have been fully exhausted and it does not intend to devote additional resources in attempting to collect.
Stock-based compensation
The Company accounts for stock-based compensation, including stock options and warrants, using the fair value method as prescribed by IFRS 2. Under this method, the fair value of stock options and warrants at the date of grant is amortized over the vesting period and the offsetting credit is recorded as an increase in contributed surplus. The Company accounts for forfeitures as they happen. For the fiscal year ended September 30, 2019 and 2018, the Company recorded stock-based compensation expense of $2,063 and $2,128, respectively.
The fair value of the vested stock options has been charged to the statement of loss and comprehensive income (loss) and credited to contributed surplus over the proper vesting period. Fair value for the options granted periods ended September 30, 2019 and 2018, used the Black-Scholes option pricing model calculated using the following assumptions:
As of | As of | |||||
September 30, 2019 | September 30, 2018 | |||||
Share price | $0.63 - $0.90 | $ | 0.05 | |||
Risk-free interest rate | 1.26% - 2.24% | 2.36 | % | |||
Expected volatility | 84.70% - 118.17% | 136.35 | % | |||
Expected life of option | 2 – 10 years | 10 years | ||||
Expected dividend yield | Nil | Nil |
Income taxes
The Company is subject to income taxes in numerous jurisdictions. Significant judgment is required in determining the provision for income taxes and the Company’s income tax provisions reflect management’s interpretation of country- specific tax law. There are many transactions and calculations for which the ultimate tax determination is uncertain during the ordinary course of business and may remain uncertain for several years after their occurrence. The Company recognizes assets and liabilities for taxation when it is probable that the relevant taxation authority will require the Company to receive or pay taxes.
Where the outcome of the determination of tax assets and liabilities is different from the amounts that were initially recorded, such differences will impact the current and deferred income taxes provision in the period in which such determination is made. Changes in tax law or changes in the way tax law is interpreted may also impact the Company’s effective tax rate as well as its business and operations.
Deferred income tax assets and liabilities are recognized for the future income tax consequences attributable to temporary differences between the financial statement carrying value of assets and liabilities and their respective income tax bases. Deferred income tax assets or liabilities are measured using enacted or substantively enacted income tax rates expected to apply to taxable income in the years in which those temporary differences are expected to be recovered or settled.
The calculation of current and deferred income taxes requires management to make estimates and assumptions and to exercise a certain amount of judgment concerning the carrying value of assets and liabilities. The current and deferred income tax assets and liabilities are also impacted by expectations about future operating results and the timing of reversal of temporary differences as well as possible audits of tax filings by regulatory agencies. Changes or differences in these estimates or assumptions may result in changes to the current and deferred tax assets and liabilities on the consolidated statements of financial position and a charge to or recovery of income tax expense.
Acquisition accounting
Accounting for business combinations requires the allocation of the Company’s purchase price to the various assets and liabilities of the acquired business at their respective fair values. The Company uses all available information to make these fair value determinations. In some instances, assumptions with respect to the timing and amount of future revenues and expenses associated with an asset or group of assets may be used to determine fair value. Actual timing and amount of net cash flows from revenues and expenses related to that asset over time may differ materially from those initial estimates, and if the timing is delayed significantly or if the net cash flows decline significantly, the asset could become impaired.
Discontinued operations and assets held for distribution
An operation is qualified as discontinued when it represents a separate major line of business and has been sold, or when the criteria for classification as an asset held for distribution have been met.
Page | 13
|
MANAGEMENT’S DISCUSSION AND ANALYSIS September 30, 2019 and 2018 (Dollar amounts expressed in thousands, except per share amounts) |
Discontinued operations are presented on the statement of income (loss) and comprehensive income (loss) for the periods reported, comprising the earnings after tax of discontinued operations until divestiture and the gain or loss after tax on sale or fair value measurement, less costs to sell.
Significant accounting judgments
The following are the critical judgments, apart from those involving estimations, that have been made in the process of applying the Company's accounting policies and that have the most significant effect on the amounts recognized in the consolidated financial statements.
Functional currency
Management has exercised judgment in selecting the functional currency of each of the entities that it consolidates based on the primary economic environment in which the entity operates and in reference to the various indicators including the currency that primarily influences or determines the selling prices of goods and services and the cost of production, including labor, material and other costs and the currency whose competitive forces and regulations mainly determine selling prices. The consolidated financial statements of the Company are presented in Canadian dollars, however the parent company and its subsidiaries’ functional currency is US dollar, which was determined using managements assumption that the primary economic environment from which it will derive its revenues and the expenses incurred to generate those revenues is the US.
Segmented reporting
Management has assessed the information that is provided to the chief operating decision maker and how the business is monitored and has exercised judgment in determining that there is only one operating segment.
Asset impairment and cash generating units
For purposes of the asset impairment testing, the Company identifies cash generating units as the smallest identifiable groups of assets that generate independent cash inflows. Impairment testing is performed on these groups of assets on an annual basis or when events or circumstances indicate that the cash generating unit may become impaired considering the assessed and projected recoverable values of the cash generating unit.
Valuation of derivative instruments
Management has exercised judgment in the determination of the fair value of the derivative instruments. Estimating fair value for the derivatives requires determining the most appropriate valuation model, which is dependent on the terms and conditions of the instrument. This estimate also requires the judgment in the determination of the most appropriate inputs to the valuation model including the expected life of the option or warrant, volatility and dividend yield and making assumptions about them.
Recognition of leases
Management has exercised judgment in the determination of whether a contract to rent equipment represents a financing lease. Using historical returns and other operational data management has determined that in cases where the Company is the lessor, no rental agreements represent financing leases.
Goodwill impairment
Management has evaluated the recoverable amount of cash generating units and applied judgment in the discount rate and other underlying assumptions used in impairment analysis of goodwill.
Business Acquisitions
On August 31, 2018, the Company executed a purchase agreement to acquire all the assets of Coastal Med-Tech Corp. (CMT), a Maine company, for a purchase consideration of $546 which was paid in cash. The Company has determined that the transaction is an acquisition of a business under IFRS 3 and it has been accounted for by applying the acquisition method. CMT provides sales of nebulizers, oxygen concentrators, CPAP/BiPAP units, non-invasive ventilation equipment and supplies and traditional and non-traditional respiratory and durable medical equipment and services. The acquisition was performed due to synergies with company’s existing business.
On October 31, 2018, the Company, through one of its indirect wholly owned subsidiary, PHM Logistics, entered into a purchase agreement to acquire 100% shares of Central Oxygen Inc. (Central Oxygen), an Indiana company and participating Medicare provider that provides i) power mobility equipment, vehicle lifts, nebulizers, oxygen concentrators, and CPAP and BiPAP units; ii) traditional and non-traditional durable medical equipment respiratory and durable medical equipment and services; and iii) non-invasive ventilation equipment, supplies and services. Total consideration of $395 was paid on closing.
Page | 14
|
MANAGEMENT’S DISCUSSION AND ANALYSIS September 30, 2019 and 2018 (Dollar amounts expressed in thousands, except per share amounts) |
On October 31, 2018, the Company, through one of its indirect wholly owned subsidiary, PHM Logistics Corporation (PHM Logistics), entered into a purchase agreement to acquire 100% shares of Riverside Medical Inc. (Riverside), a Tennessee company and participating Medicare provider that provides i) nebulizers, oxygen concentrators, and CPAP and BiPAP units; ii) traditional and non-traditional durable medical respiratory equipment and services; and iii) non-invasive ventilation equipment, supplies and services. Consideration paid of $131 and included the payoff of the scheduled debt outstanding.
Subsequent events
Cooley Medical Equipment, Inc.
Effective October 1, 2019, the Company, through one of its indirect wholly-owned subsidiaries, PHM Logistics, entered into a purchase agreement to acquire Cooley Medical Equipment, Inc. (“Cooley”), a Kentucky company and participating Medicare provider that provides i) nebulizers, oxygen concentrators, and CPAP and BiPAP units; ii) traditional and non-traditional durable medical respiratory equipment and services; and iii) non-invasive ventilation equipment, supplies and services. The purchase price was US$2,514, of which the Company paid cash at closing of US$2,333. There is a holdback of US$181 which will be payable 18 months after the agreement was signed.
The Company is in the process of gathering the information required to allocate the purchase price to the acquired tangible and intangible assets as of the acquisition date.
Acadia Medical Supply, Inc.
Effective December 1, 2019, the Company, through one of its indirect wholly-owned subsidiaries, PHM Logistics, entered into a purchase agreement to acquire Acadia Medical Supply, Inc. (“Acadia”), a Maine company and participating Medicare provider that provides i) power mobility equipment, vehicle lifts, nebulizers, oxygen concentrators, and CPAP and BiPAP units; (ii) traditional and non-traditional durable medical equipment respiratory and durable medical equipment and services; and (iii) non- invasive ventilation equipment and supplies. The purchase price was US$1,750, of which the Company paid cash at closing of US$1,004. There is a holdback of US$600 which US$100 will be payable 90 days after the close date and US$250 on each of the one-year anniversary of the closing date and the two-year anniversary of the closing date.
The Company is in the process of gathering the information required to allocate the purchase price to the acquired tangible and intangible assets as of the acquisition date.
FINANCIAL INSTRUMENTS AND RISK MANAGEMENT
Financial instrument risk exposure
The Company’ s activities expose it to a variety of financial risks: market risk (including price risk, currency risk and interest rate risk), credit risk and liquidity risk. These risks arise from the normal course of operations and all transactions are undertaken to support the Company’ s ability to continue as a going concern. Risk management is carried out by management under policies approved by the Board of Directors. Management identifies and evaluates the financial risks in co-operation with the Company’s operating units. The Company’ s overall risk management program seeks to minimize potential adverse effects on the Company’s financial performance.
Credit risk
Credit risk is the risk that one party to a financial instrument will fail to discharge an obligation and cause the other party to incur a financial loss. Financial instruments that potentially subject the Company to credit risk are primarily cash and accounts receivable. Each subsidiary places its cash with one major financial institution. At times, the cash in the financial institution is temporarily in excess of the amount insured by the Federal Deposit Insurance Corporation. Substantially all accounts receivable are due under fee-for-service contracts from third party payors, such as insurance companies and government-sponsored healthcare programs, directly from patients or for rebates due from manufacturers. Receivables generally are collected within industry norms for third-party payors and from manufacturers. The Company continuously monitors collections from its clients and maintains an allowance for bad debts based upon any specific payor collection issues that are identified and historical experience.
The Company recorded bad debt expense of $5,686 and $5,226 for years ended September 30, 2019 and 2018, respectively. As of September 30, 2019, no one customer represented more than 10% of outstanding accounts receivable. The Company does have more than 10% of receivables through Medicare. As this is a Federal program there is very little credit risk associated with these balances.
Page | 15
|
MANAGEMENT’S DISCUSSION AND ANALYSIS September 30, 2019 and 2018 (Dollar amounts expressed in thousands, except per share amounts) |
Currency risk
Currency risk is the risk that the Company will be subject to foreign currency fluctuations in satisfying obligations related to its foreign activities.
The Company realizes approximately 100% of its sales and makes a significant amount of its purchases in US dollars. Consequently, assets and liabilities are exposed to foreign exchange fluctuations.
The Company’s objective in managing its foreign currency risk is to minimize its net exposures to foreign currency cash flows by holding approximately 90% of its cash and cash equivalents in US dollars. The Company monitors and forecasts the values of net foreign currency cash flow and statement of financial position exposures and from time to time could authorize the use of derivative financial instruments such as forward foreign exchange contracts to economically hedge a portion of foreign currency fluctuations.
Based on the above net exposure at fiscal year ended September 30, 2019, a 10% depreciation or appreciation of the US dollar against the Canadian dollar would result in an insignificant effect in net loss. The Company has not employed any currency hedging programs during the years ended September 30, 2019 or 2018.
Liquidity risk
Liquidity risk is the risk that the Company will not be able to meet its financial obligations as they become due. The Company’s approach in managing liquidity is to ensure, to the extent possible, that it will have enough liquidity to meet its liabilities when due, under both normal conditions, by continuously monitoring actual and budgeted cash flows.
As of September 30, 2019, the Company faces no material liquidity risk and can meet all its current financial obligations as they become due and payable. The Company has $18,969 of liabilities that are due within one year. The Company has $30,783 of current assets to meet those obligations.
Interest rate risk
Interest rate risk is the risk that the future cash flows of a financial instrument will fluctuate because of changes in market interest rates. Interest rate risk is limited to potential decreases on the interest rate offered on cash and cash equivalents held with Chartered Canadian and registered US financial institutions. The Company considers this risk to be immaterial. The interest on the convertible notes is not subject to cash flow interest rate risk as these instruments bear interest at fixed rates.
RISK FACTORS
While it is impossible to identify all such risk factors, factors that could cause actual results to differ materially from those estimated by us include:
Market Price of the Company Shares
The Company Shares are listed and posted for trading on the TSX-V. Securities of small-cap and healthcare companies have experienced substantial volatility in the past, often based on factors unrelated to the financial performance or prospects of the companies involved. These factors include macroeconomic developments in North America and globally, and market perceptions of the attractiveness of particular industries. The price of the Company Shares is also likely to be significantly affected by short-term changes in cost of goods, or in financial condition or results of operations. Other factors unrelated to the performance of the Company that may have an effect on the price of the Company Shares include the following: the extent of analytical coverage available to investors concerning the business of the Company may be limited if investment banks with research capabilities do not follow the Company securities; lessening in trading volume and general market interest in the Company’s securities may affect an investor’s ability to trade significant numbers of the Company Shares; the size of the Company’s public float may limit the ability of some institutions to invest in the Company’s securities; and a substantial decline in the price of the Company Shares that persists for a significant period of time could cause the Company’s securities, if listed on an exchange, to be delisted from such exchange, further reducing market liquidity.
As a result of any of these factors, the market price of the Company Shares at any given point in time may not accurately reflect the long-term value of the Company. Securities class-action litigation often has been brought against companies following periods of volatility in the market price of their securities. The Company may in the future be the target of similar litigation. Securities litigation could result in substantial costs and damages and divert management’s attention and resources.
Page | 16
|
MANAGEMENT’S DISCUSSION AND ANALYSIS September 30, 2019 and 2018 (Dollar amounts expressed in thousands, except per share amounts) |
Dilution
The Company will require additional funds in respect of the further development of The Company’s business. If the Company raises funds by issuing additional equity securities, such financing will dilute the equity interests of its shareholders.
Future Sales of Shares by Existing Shareholders
Sales of a large number of the Company Shares in the public markets, or the potential for such sales, could decrease the trading price of the Company Shares and could impair The Company’s ability to raise capital through future sales of the Company Shares. The Company may from time to time have previously issued securities at an effective price per share which will be lower than the market price of the Company Shares. Accordingly, certain shareholders of The Company may have an investment profit in the Company Shares that they may seek to liquidate.
Limited History of Operations
The Company has a limited history of operations. There can be no assurance that the business of the Company and/or its subsidiaries will be successful and generate, or maintain, any profit.
Novel Business Model
Home monitoring of patients on anticoagulants is a relatively new business, making it difficult to predict market acceptance, development, expansion and direction. The home monitoring services to be provided by the Company represent a relatively new development in the U.S. healthcare industry. Accordingly, adoption by patients and physicians can require education, which can result in a lengthy sales cycle. The market may take time to develop. Physicians and/or patients may be slow to adopt new methods. The development of the Company’s home monitoring business will depend on several factors. These factors include: The Company’s ability to differentiate its services from those of its competitors; the extent and timing of the acceptance of the Company’s services as a replacement for, or supplement to, traditional methods of monitoring patients; the effectiveness of the Company’s sales and marketing and engagement efforts with customers and their health plan participants; the Company’s ability to provide quality customer service, as perceived by patients and physicians.
Because the monitoring business is evolving, the Company may not be able to anticipate and adapt to the developing market. Moreover, management cannot predict with certainty the future growth rate or the ultimate size of the market.
Reimbursement Rates May Decline
Reimbursement for services to be provided by the Company will come primarily from Medicare and private health insurance companies. The reimbursement rates offered are outside the control of the Company. Reimbursement rates in this area, and much of the U.S. health care market in general, have been subject to continual reductions as health insurers and governmental entities attempt to control health care costs. The extent and timing of any reduction in reimbursement rates cannot be predicted by the Company.
Reductions in reimbursement rates can have a material impact on the profitability of the Company’s operations. A reduction in reimbursement may be unrelated to any concurrent decline in the cost of operations, thereby resulting in reduced profitability. The Company’s costs of operations could increase, but the cost increases may not be passed on to customers because reimbursement rates are set without regard to the cost of service.
Dependence Upon Relationships with Key Suppliers
There are few manufacturers of equipment which can be used for home monitoring of patients on anticoagulants. There is the possibility that a new meter will encounter difficulties or “bugs” when first sent to market, and that initial technical support costs may be higher than for more well-established meters. Even if the Company switches to other competing meters, they may also encounter technical difficulties or regulatory issues. The emerging nature of the market presents risks that suppliers may not be able to provide equipment to satisfy demand. Demand may outstrip supply, leading to equipment shortages. Conversely, incorrect demand forecasting could lead to excess inventory. If the Company fails to achieve certain volume of sales, prices of meters may increase. The industry is subject to a high level of regulatory scrutiny, and government or manufacturer recalls could adversely affect the Company’s ability to provide monitoring services and achieve revenue targets.
Inadequate supply could impair the Company’s ability to attract new business and could create upward pricing pressure on equipment and supplies, adversely affecting margins for The Company. Additionally, the market for financing home testing meters and other supplies needed by the Company is limited. Several equipment manufacturers are pursuing a strategy of vertical integration, and should the Company ever need to order equipment from those manufacturers, such equipment may not be available on favorable terms.
Page | 17
|
MANAGEMENT’S DISCUSSION AND ANALYSIS September 30, 2019 and 2018 (Dollar amounts expressed in thousands, except per share amounts) |
Reliance Upon Few Payers
The Company will earn revenues by seeking reimbursement from Medicare and private health insurance companies, with the Medicare program of the U.S. government being the primary entity making payments. If the Medicare program were to slow payments of PHM receivables for any reason, PHM would be adversely impacted. In addition, both governmental and private health insurance companies may seek ways to avoid or delay reimbursement, which could adversely affect cash flow and revenues for the Company.
Government Regulation
Some operations of the Company will require certain licenses and permits from the authorities in the United States. The ability of the Company and its subsidiaries to obtain, sustain or renew any such licenses and permits on acceptable terms is subject to changes in regulations and policies and to the discretion of the applicable authorities or other governmental agencies. The ability of the Company to collect certain revenues in the future will depend on the Company receiving approval of an independent diagnostic testing facility and entering into an agreement with Medicare. There is no guarantee that the Company will meet these conditions. The Company will be subject to regulation from United States federal and state authorities. Regulatory action could disrupt its ability to provide services. Such regulatory action could come in the form of actions against manufacturers, unrelated to the Company’s conduct, or actions based upon the Company’s operation. Regulatory action could prevent or delay reimbursement for certain services.
There could also be legislative action that could adversely affect the Company’s business model, including, without limitation: a decision by the United States government to become the exclusive provider of health care services at some time in the future; changes in United States federal or state laws, rules, and regulations, including those governing the corporate practice of medicine, and fee splitting; and changes in the United States Anti-Kickback Statute and Stark Law and/or similar state laws, rules, and regulations. Conversely, budgetary problems in the United States could lead to reduced funding, substantial modification or elimination of Medicare programs, which would end reimbursement for many patients. There can be no assurance that new rules and regulations will not be enacted or that existing rules and regulations will not be applied in a manner which could limit or curtail the business of the Company. Amendments to current laws and regulations could have a substantial adverse impact on the Company.
CMS (Centers for Medicare & Medicaid Services) policies of health insurance for Medicare in the United States may affect the amount of revenue the Company receives. The Company will continue to be subject to risk that reimbursement rates for its services from both federal and private payers will decline over time. Reimbursement from federal programs is subject to constant regulatory review and increasing audits by federal authorities, the effect of which may be to increase costs of service and delay or affect reimbursement, which could negatively impact cash flow and/or revenue. Audits may be costly and time consuming, and could delay cash flow, even if the Company acted properly in all respects.
The policies of health insurance carriers in the United States may affect the amount of revenue the Company receives.
Highly Competitive Market
The Company will participate in a highly competitive market, which may become more competitive as new players enter. Certain competitors will be subsidiaries or divisions of larger, much better capitalized companies. Certain competitors will have vertically integrated manufacturing and services sectors of the market. The Company may have less capital and may encounter greater operational challenges in serving the market. Better capitalized competitors may also be expected to borrow money or raise debt to purchase equipment more easily than the Company.
Foreign Subsidiaries
The Company plans to conduct all its operations through respective United States subsidiaries. Therefore, to the extent of these holdings, the Company (directly and indirectly) will be dependent on the cash flows of these subsidiaries to meet its obligations. The ability of such subsidiaries to make payments to their parent companies may be constrained by the following factors: the level of taxation, particularly corporate profits and withholding taxes, in the jurisdiction in which each subsidiary operates; and the introduction of exchange controls or repatriation restrictions or the availability of hard currency to be repatriated.
Page | 18
|
MANAGEMENT’S DISCUSSION AND ANALYSIS September 30, 2019 and 2018 (Dollar amounts expressed in thousands, except per share amounts) |
Attraction and Retention of Key Personnel Including Directors
The Company will have a small management team and the loss of a key individual or inability to attract suitably qualified staff could have a material adverse impact on the business of The Company. The Company may also encounter difficulties in obtaining and maintaining suitably qualified staff. The success of The Company depends on the ability of management to interpret market data correctly and to interpret and respond to economic, market and other conditions in order to locate and adopt appropriate opportunities. No assurance can be given that individuals with the required skills will continue employment with The Company or that replacement personnel with comparable skills can be found. The Company will be dependent on the services of key executives, including the directors of The Company and a small number of highly skilled and experienced executives and personnel. Due to the relatively small size of The Company, the loss of these persons or The Company’s inability to attract and retain additional highly skilled employees may adversely affect its business and future operations.
Dividends
The Company currently intends to retain future earnings to finance the operation, development and expansion of its business. The Company does not anticipate paying cash dividends on the Company Shares in the foreseeable future. Payment of future cash dividends, if any, will be at the discretion of the Company Board and will depend on the Company’s financial condition, results of operations, contractual restrictions, capital requirements, business prospects and other factors that the Company Board may consider relevant. Accordingly, investors will only see a return on their investment if the value of the Company Shares appreciates.
Discretion in the Use of Available Funds
Management will have broad discretion concerning the use of the available funds of the Company as well as the timing of their expenditures. As a result, shareholders and investors will be relying on the judgment of management of the Company on completion of the Arrangement for the application of the available funds of the Company (see “Available Funds and Principal Purposes” above). Management may use the available funds in ways that an investor may not consider desirable. The results and the effectiveness of the application of the available funds are uncertain. If the available funds are not applied effectively, the Company’s results of operations may suffer.
Potential Conflicts of Interest
Some of the proposed directors and officers of the Company are engaged and will continue to be engaged as directors and officers of other companies in the search for additional business opportunities on behalf of such other corporations, and situations may arise where these directors and officers will be in direct competition with the Company. Some of the proposed directors and officers of the Company are or may become directors or officers of other companies engaged in other business ventures.
Conflicts of interest, if any, which arise may be subject to and be governed by procedures prescribed by the Business Corporations Act (British Columbia) which require a director or officer of a corporation who is a party to or is a director or an officer of or has a material interest in any person who is a party to a material contract or proposed material contract with The Company to disclose his interest and to refrain from voting on any matter in respect of such contract unless otherwise permitted under the Business Corporations Act (British Columbia). Any decision made by any of such directors and officers involving the Company should be made in accordance with their duties and obligations to deal fairly and in good faith with a view to the best interests of the Company and its shareholders.
Insurance and Uninsured Risks
The Company’s business will continue to be subject to several risks and hazards generally, including general liability. Such occurrences could result in damage to property, inventory, facilities, personal injury or death, damage to the properties of the Company, or the properties of others, monetary losses and possible legal liability. The Company may be subject to product liability and medical malpractice claims, which may adversely affect its operations. The Company’s industry is highly regulated, and the Company may be subject to regulatory scrutiny for violations of regulations and laws. The Company could be adversely affected by the time and cost involved with regulatory investigations even if it has operated in compliance with all laws. Investigations could also adversely affect the timely payment of receivables.
Although the Company will maintain insurance to protect against certain risks in such amounts as it considers to be reasonable, its insurance will not cover all the potential risks associated with its operations. The Company may also be unable to maintain insurance to cover these risks at economically feasible premiums. Insurance coverage may not continue to be available or may not be adequate to cover any resulting liability. The Company might also become subject to liability which may not be insured against or which the Company may elect not to insure against because of premium costs or other reasons. Losses from these events may cause the Company to incur significant costs that could have a material adverse effect upon its financial performance and results of operations.
Page | 19
|
MANAGEMENT’S DISCUSSION AND ANALYSIS September 30, 2019 and 2018 (Dollar amounts expressed in thousands, except per share amounts) |
Additional Capital
The development and the business (including acquisitions) of the Company may require additional financing, which may involve high transaction costs, dilution to shareholders, high interest rates or unfavorable terms and conditions. Failure to obtain enough financing may result in the delay or indefinite postponement of its business plans. As the Company will likely be unable to obtain traditional debt financing until it has a profitable and longer operating history, the initial primary source of funding available to the Company will consist of equity financing. There can be no assurance that additional capital or other types of financing will be available if needed or that, if available, the terms of such financing will be favorable to the Company.
Loss of Foreign Private Issuer Status
The Company may lose its foreign private issuer status in the future, which could result in significant additional costs and expenses. As a foreign private issuer, as defined in Rule 3b-4 under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), the Company is currently exempt from certain of the provisions of the U.S. federal securities laws. For example, an issuer with total assets in excess of US$10 million and whose outstanding equity securities are held by 2,000 or more persons, or 500 or more persons who are not “accredited investors”, must register such securities as a class under the Exchange Act. However, as a foreign private issuer subject to Canadian continuous disclosure requirements, the Company may claim the exemption from registration under the Exchange Act provided by Rule threeg3-2(b) thereunder, even if these thresholds are exceeded. To be considered a foreign private issuer, The Company must satisfy a United States shareholder test (not more than 50% of the voting securities of a company must be held by residents of the United States) if any of the following disqualifying conditions apply: (i) the majority of the Company’s executive officers or directors are United States citizens or residents; (ii) more than 50 percent of The Company’s assets are located in the United States; or (iii) The Company’s business is administered principally in the United States. Based on information available as at the date hereof, approximately 26.7% of the Company’s outstanding voting securities are anticipated to be directly or indirectly held of record by residents of the United States. If the Company loses its status as a foreign private issuer, these regulations could apply and it could also be required to commence reporting on forms required of U.S. domestic companies, such as Forms 10-K, 10-Q and 8-K. It could also become subject to U.S. proxy rules, and certain holders of its equity securities could become subject to the insider reporting and “short swing” profit rules under Section 16 of the Exchange Act. In addition, any securities issued by the Company if it loses foreign private issuer status would become subject to certain rules and restrictions under the Securities Act of 1933, as amended, even if they are issued or resold outside the United States. Compliance with the additional disclosure, compliance and timing requirements under these securities laws would likely result in increased expenses and would require the Company’s management to devote substantial time and resources to comply with new regulatory requirements.
United States Operations and Exchange Rate Fluctuations:
All the Company’s revenue generating operations will occur in the United States. The Company will be subject to risks associated with its operations that may increase liability and costs and require significant management attention. These risks include:
· | compliance with laws of the United States that will apply to the Company’s United States operations, including lawful access, privacy laws and anti-corruption laws; |
· | instability in economic or political conditions, including inflation, recession and political uncertainty; |
· | potential adverse tax consequences; and |
· | litigation in United States courts. |
In addition, the Company will be exposed to foreign exchange risk as a result of substantially all of its revenue generating operations taking place in the United States and thus, revenues and expenses being earned and paid in United States dollars while the Company reports its financial statements in Canadian dollars. If the Canadian dollar appreciates relative to the United States dollar, the Company’s Canadian dollar expenses and revenues will decrease when translated from United States dollars for financial reporting purposes. Conversely, if the Canadian dollar depreciates relative to the United States dollar, the Company’s Canadian dollar expenses and revenues will increase when translated from United States dollars for financial reporting purposes. In addition, exchange rate fluctuations may affect the costs that The Company incurs in its operations. The appreciation of non-United States dollar currencies against the United States dollar can increase the cost of operations in United States dollar terms. Foreign exchange rate fluctuations may materially affect the Company’s financial condition and results of operations in future periods.
The Company will continue to translate the assets and liabilities of its United States dollar functional currency subsidiaries into Canadian dollars using exchange rates in effect at the end of each period. Revenue and expenses for these subsidiaries are translated using average exchange rates that approximate those in effect during the period. The Company will continue to maintain cash balances in both United States and Canadian dollars, but management anticipates that it will not purchase any securities or financial instruments to speculate on or hedge against a rise or fall in the value of the United States dollar.
Page | 20
|
MANAGEMENT’S DISCUSSION AND ANALYSIS September 30, 2019 and 2018 (Dollar amounts expressed in thousands, except per share amounts) |
Global Economy
Recent market events and conditions, including disruptions in the international credit markets and other financial systems and the deterioration of global economic conditions, could impede the Company’s access to capital or increase the cost of capital. From 2007 to 2009, the United States credit markets began to experience serious disruption due to deterioration in residential property values, defaults and delinquencies in the residential mortgage market and a decline in the credit quality of mortgage- backed securities. These problems led to a slow-down in residential housing market transactions, declining housing prices, delinquencies in non-mortgage consumer credit and a general decline in consumer confidence. These conditions caused a loss of confidence in the broader United States and global credit and financial markets and resulted in the collapse of, and government intervention in, major banks, financial institutions and insurers and created a climate of greater volatility, less liquidity, widening of credit spreads, a lack of price transparency, increased credit losses and tighter credit conditions which continued throughout 2012 with continued uncertainty in the European marketplace and continued uncertainty surrounding the “fiscal cliff” , the United States government deficit and the United States government spending cuts. Notwithstanding various actions by the United States and foreign governments, concerns about the general condition of the capital markets, financial instruments, banks, investment banks, insurers and other financial institutions caused the broader credit markets to deteriorate and stock markets to fluctuate substantially.
These disruptions in the current credit and financial markets have had a significant material adverse impact on several financial institutions and have limited access to capital and credit for many companies, including junior mining companies. These disruptions could, among other things, make it more difficult for the Company to obtain, or increase its cost of obtaining, capital and financing for its operations. Access to additional capital may not be available to the Company on terms acceptable to it, or at all.
Page | 21
Exhibit 99.3
PROTECH HOME MEDICAL ANNOUNCES HIGHLY ACCRETIVE ACQUISITION OF COOLEY
MEDICAL, INC. AND UPDATE ON GROWING M&A PIPELINE
NOT FOR DISSEMINATION IN THE UNITED STATES OR FOR DISTRIBUTION TO U.S. NEWSWIRE
SERVICES AND DOES NOT CONSTITUTE AN OFFER OF THE SECURITIES DESCRIBED HEREIN.
Cincinnati, Ohio – October 15, 2019 – Protech Home Medical Corp. (“Protech” or the “Company”) (TSXV: PTQ), a healthcare services company with operations in the U.S., is pleased to announce that it has acquired Cooley Medical, Inc. (“CMI”), a company based in Kentucky.
Acquisition Details
CMI is a leader and top provider of respiratory services in Eastern and Central Kentucky with six locations that, when combined with the Company’s current operations, will significantly expand Protech’s geographical footprint and will provide services to an additional 34 counties in the state of Kentucky, eight in Indiana and five in Virginia. CMI has a substantial patient count with more than 13,000 active patients to whom it delivers more than 17,000 pieces of rental equipment annually. Under the terms of the definitive purchase agreement, Protech will acquire CMI for total cash consideration of approximately $3.1 million and the assumption of approximately $0.9 million of debt.
After an initial transition and integration period, CMI is expected to increase Protech’s annual revenues by approximately $9 million and increase Adjusted EBITDA by $1.6 to $1.9 million. When combined with the Company’s existing operations, Protech expects, its annualized run-rate revenue to be between $95 to $97 million and Adjusted EBITDA to be between $17 to $19 million.
“CMI is the type of accretive acquisition we’re going to continue to pursue given our strong balance sheet and ability to transact on larger opportunities,’ said Greg Crawford, Chairman and CEO of Protech. “The CMI acquisition is expected to be immediately accretive to revenue and Adjusted EBITDA as we use our regional expertise and infrastructure to achieve revenue and profit growth through our integration platform. These types of acquisitions are expected to significantly increase our penetration in our existing markets for marginal incremental cost and will continue to be one of our core strategies going forward. We are particularly delighted by CMI’s product mix as it is largely focused on the respiratory market which we have a particular affinity towards given its extremely positive fundamentals.”
M&A Pipeline Update
As previously announced, the Company is focused on the implementation of its corporate strategy that incorporates technology, organic growth and strategic acquisitions to continue to improve upon its recent financial results. Following the closing of the CMI acquisition, the Company will have more than $9 million in cash to continue to pursue additional acquisitions that will continue to focus on strategic locations driven by product mix, distribution volumes and the ability to consolidate distribution channels to drive operating efficiencies and maximize earnings accretion.
“We continue to build our pipeline of qualified acquisition targets,” said Hardik Mehta, CFO of Protech. “At present, we are in active negotiations with companies that, if consummated, would add additional revenue to Protech. Additionally, we continue to source new deals. With many high-quality acquisition targets to choose from, we will continue to be extremely disciplined in terms of those acquisitions we pursue with particular focus on those where we can achieve favorable pricing and optimal accretion.”
ABOUT PROTECH HOME MEDICAL CORP.
The Company provides in-home monitoring and disease management services for patients in the United States healthcare market. The primary business objective of the Company is to create shareholder value by offering a broader range of services to patients in need of in-home monitoring and chronic disease management. The Company’s organic growth strategy is to increase annual revenue per patient by offering multiple services to the same patient, consolidating the patient’s services and making life easier for the patient.
Non-GAAP Measures
This press release refers to “Adjusted EBITDA” which is a non-GAAP and non-IFRS financial measure that does not have a standardized meaning prescribed by GAAP or IFRS. The Company’s presentation of this financial measure may not be comparable to similarly titled measures used by other companies. This financial measure is intended to provide additional information to investors concerning the Company’s performance. Adjusted EBITDA is defined as EBITDA excluding stock based compensation and gains/losses on financial derivatives. Adjusted EBITDA is a Non-IFRS measure the Company uses as an indicator of financial health and excludes several items which may be useful in the consideration of the financial condition of the Company, including interest expense, taxes, depreciation, amortization, stock-based compensation, good will impairment and gain/losses on financial derivatives.
Forward-Looking Statements
Certain statements contained in this press release constitute "forward-looking information" as such term is defined in applicable Canadian securities legislation. The words "may", "would", "could", "should", "potential", "will", "seek", "intend", "plan", "anticipate", "believe", "estimate", "expect" and similar expressions as they relate to the Company, including, the Company successfully completing acquisitions and the results of such acquisitions, are intended to identify forward-looking information. All statements other than statements of historical fact may be forward-looking information. Such statements reflect the Company's current views and intentions with respect to future events, and current information available to the Company, and are subject to certain risks, uncertainties and assumptions, including, without limitation, the Company identifying, negotiating and closing one or more acquisitions, and the historical performance of such acquisitions being maintained subsequent to closing. Many factors could cause the actual results, performance or achievements that may be expressed or implied by such forward-looking information to vary from those described herein should one or more of these risks or uncertainties materialize. Examples of such risk factors include, without limitation: credit; market (including equity, commodity, foreign exchange and interest rate); liquidity; operational (including technology and infrastructure); reputational; insurance; strategic; regulatory; legal; environmental; capital adequacy; the general business and economic conditions in the regions in which the Company operates; the ability of the Company to execute on key priorities, including the successful completion of acquisitions, business retention, and strategic plans and to attract, develop and retain key executives; difficulty integrating newly acquired businesses; the ability to implement business strategies and pursue business opportunities; low profit market segments; disruptions in or attacks (including cyber-attacks) on the Company's information technology, internet, network access or other voice or data communications systems or services; the evolution of various types of fraud or other criminal behavior to which the Company is exposed; the failure of third parties to comply with their obligations to the Company or its affiliates; the impact of new and changes to, or application of, current laws and regulations; decline of reimbursement rates; dependence on few payors; possible new drug discoveries; a novel business model; dependence on key suppliers; granting of permits and licenses in a highly regulated business; the overall difficult litigation environment, including in the U.S.; increased competition; changes in foreign currency rates; increased funding costs and market volatility due to market illiquidity and competition for funding; the availability of funds and resources to pursue operations; critical accounting estimates and changes to accounting standards, policies, and methods used by the Company; and the occurrence of natural and unnatural catastrophic events and claims resulting from such events; as well as those risk factors discussed or referred to in the Company’s disclosure documents filed with the securities regulatory authorities in certain provinces of Canada and available at www.sedar.com. Should any factor affect the Company in an unexpected manner, or should assumptions underlying the forward-looking information prove incorrect, the actual results or events may differ materially from the results or events predicted. Any such forward-looking information is expressly qualified in its entirety by this cautionary statement. Moreover, the Company does not assume responsibility for the accuracy or completeness of such forward-looking information. The forward-looking information included in this press release is made as of the date of this press release and the Company undertakes no obligation to publicly update or revise any forward-looking information, other than as required by applicable law.
Neither the TSX Venture Exchange nor its Regulation Services Provider (as that term is defined in the policies of the TSX Venture Exchange) accepts responsibility for the adequacy or accuracy of this release. All amounts in Canadian Dollars unless otherwise stated..
For further information please visit our website at www.protechhomemedical.com, or contact:
Gregory Crawford
Chief Executive Officer
Protech Home Medical Corp.
859-300-6455
investorinfo@myphm.com
Investor Relations:
Oak Hill Financial Inc.
Jonathan L. Robinson CFA
416-669-1001
jrobinson@oakhillfinancial.ca
Exhibit 99.4
FINAL VERSION
PURCHASE AGREEMENT
THIS PURCHASE AGREEMENT (this “Agreement”) is made as of October 15, 2019, (“Agreement Date”) by and among PHM Logistics Corporation, a corporation incorporated under the laws of Delaware (“Buyer”), Cooley Medical Equipment, Inc., a corporation incorporated under the laws of the Commonwealth of Kentucky (“Company”), and Alec G. Bailey, an individual (the “Shareholder” and, together with the Company, each a “Seller” and together, the “Sellers”).
Background
The Company is a corporation organized under the laws of the Commonwealth of Kentucky and a participating Medicare provider that provides (i) power mobility equipment, vehicle lifts, nebulizers, oxygen concentrators, and CPAP and BiPAP units; (ii) traditional and non-traditional durable medical equipment respiratory and durable medical equipment and services; and (iii) non-invasive ventilation equipment, supplies and services (collectively, the “Business”). The parties acknowledge and agree that the Business does not and is not intended or contemplated to include the provision of professional medical services requiring licensure as a physician. The Shareholder owns beneficially and of record 100% of the issued and outstanding equity securities of the Company (collectively, the “Company Shares”).
Agreement
NOW, THEREFORE, in consideration of the mutual representations, warranties, covenants and agreements set forth in this Agreement, and intending to be legally bound, the parties agree as follows:
1. | PURCHASE AND SALE OF COMPANY SHARES; PURCHASE PRICE |
1.1 Purchase of the Company Shares. Subject to the terms and upon the conditions set forth in this Agreement, Buyer agrees to purchase from the Shareholder, and the Shareholder agrees to sell to Buyer, all of the Company Shares, for the Purchase Price set forth in Section 1.2 hereto (the “Transaction”).
1.2 Purchase Price.
(a) General. In consideration for the sale of the Company Shares, Buyer shall make payments in accordance with this Section 1.2. All cash payments made under this Agreement shall be made in and all references to “$” shall refer to United States Dollars.
(b) Total Purchase Price. The purchase price paid by Buyer for the Company Shares shall be an amount equal to: (i) $3,500,000, less (ii) the sum of (A) any Company Bank and Lease Indebtedness and Company Other Indebtedness paid by Buyer on the Company’s behalf prior to, or at, the Closing or (B) any other Company Bank and Lease Indebtedness and Company Other Indebtedness existing at the Closing, less (iii) any negative Net Working Capital Adjustment Amount, less (iv) the Settlement Payment, plus (v) any cash on hand at the Effective Date, and plus (vi) any positive Net Working Capital Adjustment Amount (as adjusted, the “Purchase Price”). The Purchase Price shall be paid in accordance with Section 1.2(c) below.
(c) Payment of Purchase Price. The Purchase Price shall be payable by Buyer at the Closing as follows:
(i) $1,000 in cash by wire transfer in immediately available funds to Shareholder (the “Closing Cash Payment”), and
(ii) The balance of the Purchase Price (the “Cash Holdback Portion”) shall be paid by Buyer to the Shareholder on the eighteen (18) month anniversary of the Closing Date (as defined in Section 2.1), subject to any deduction therefrom pursuant to Section 1.3, 6.6 or Article 8 hereof.
(d) Payment of Settlement Payment. Immediately following the Closing, the Settlement Payment shall be payable directly to the United States of America as a restitution payment pursuant to the Settlement Agreement on behalf of the Company by wire transfer in immediately available funds.
1.3 Apportionments. At the Closing (as defined in Section 2.1), the following items shall be apportioned as of 11:59 p.m. on the Effective Date (the “Apportionments”), without duplication of any amounts reflected in the calculation of Net Working Capital: property taxes, rents, utilities, prepayments to suppliers and other prepayments, expenses, suppliers and customers which have been accrued or should have been accrued as of 11:59 PM on the Effective Date; all such items prior to such time being for the account of the Shareholder and all such items after such time being for the account of Buyer. The Apportionments shall be paid as part of the Company Other Indebtedness in accordance with Section 1.2. If any such items cannot accurately be apportioned at the Closing or prior thereto, or if it is later determined that such apportionment at the Closing was not accurate, such items shall be apportioned or reapportioned, as the case may be, as soon as practicable after the Closing Date or the date on which the apportionment error is discovered, as applicable, but in no event more than sixty (60) days after the Closing Date. Any negative adjustment to the Apportionments shall be deducted from the Cash Holdback Portion.
1.4 Payment of Shareholder Debt; Offset. Notwithstanding anything else contained herein, the Shareholder Debt shall be paid to the Shareholder in conjunction with the Post-Closing Adjustment. To the extent that any Company Other Indebtedness does not result in a reduction to the Purchase Price pursuant to Section 1.2(b) nor is paid at the Closing pursuant to Section 1.2(b), Buyer shall offset the amount of the same against the Shareholder Debt, and Buyer, the Company, and the Shareholder acknowledge and agree that the amount thereof shall reduce on a dollar for dollar basis, the Shareholder Debt and constitute a capital contribution by the Shareholder to the Company.
2. | CLOSING |
2.1 Closing Date. Subject to the terms and conditions of this Agreement, the closing of the Transaction contemplated hereby (the “Closing”) shall take place on the Agreement Date, or at such other time as the parties may agree, but effective for all purposes on October 1, 2019 (the “Effective Date”). The Closing shall take place via the exchange of fully executed signature pages via overnight courier, facsimile or other electronic transmission, effective as of 11:59 pm on the Effective Date. The date of the Closing is hereinafter referred to as the “Closing Date.”
2
3. | REPRESENTATIONS, WARRANTIES AND COVENANTS OF SHAREHOLDER |
As an inducement to Buyer to enter into this Agreement and to consummate the transactions contemplated by this Agreement, the Shareholder represents, warrants and covenants to Buyer as hereafter set forth in this Section 3, and acknowledges that Buyer is relying upon such representations, warranties and covenants contained in this Section 3 as being true and correct, provided, that any qualifications and exceptions to such representations, warranties or covenants shall be set forth on a corresponding disclosure schedule attached hereto (each, a “Disclosure Schedule”). The Disclosure Schedules shall be numbered to correspond to the various Sections of this Agreement.
3.1 Organization and Organization Documents.
(a) The Company is a corporation duly organized, validly existing and in good standing under the laws of the Commonwealth of Kentucky, and has the requisite power and authority to own or lease all of its assets, to own and operate the Business, and to carry on its business as now conducted. The Company is qualified or licensed to do business in the jurisdictions in which it is required to be so qualified, such states being the Commonwealth of Kentucky and such other places where the Business is currently conducted. The Company has no subsidiaries.
(b) Except as set forth on Schedule 3.1(b), the Company has not changed its name, been the surviving entity of a merger or consolidation, or acquired all or substantially all of the assets of any Person or entity.
(c) The Company has made available to Buyer and its counsel the articles of incorporation or other organizational documents of the Company, the current Bylaws of the Company and all amendments thereto to date, and copies of any actions taken at any meetings of its shareholders and board of directors or by the written consent of the shareholders or board of directors of the Company.
(d) The Company’s director and the Shareholder have determined it to be in the best interests of the Company for the Transaction to be consummated.
3.2 Capitalization. The Company Shares are the only issued and outstanding equity interests of the Company and the Company Shares have been duly authorized, are validly issued, fully paid and non-assessable, and are not subject to any capital calls or subscriptions. There are no outstanding subscriptions, options, rights, warrants, conversion rights, agreements or commitments of any kind obligating the Company to issue, acquire or transfer any interests of any kind in the Company including the Company Shares. Except as set forth in Schedule 3.2, the Company has no outstanding or authorized stock appreciation, phantom stock, profit participation, or similar rights or plans.
3
3.3 Ownership of Company Shares. The Shareholder owns all of the Company Shares beneficially and of record, free and clear of all liens, encumbrances, pledges, options, warrants, rights of first refusal, claims, charges and restrictions of any nature.
3.4 Authority of Sellers. Each Seller has full power and authority to enter into this Agreement and the other agreements, instruments and documents contemplated by this Agreement (the “Related Documents”), to consummate the transactions contemplated hereby, and to perform all obligations hereunder and thereunder. The execution, delivery and performance by each Seller of this Agreement and the Related Documents have been duly and validly approved (and in the case of the Company, by all necessary shareholder approval). This Agreement and each Related Document to which the Company or the Shareholder is a party, upon its execution and delivery, constitutes the legal, valid and binding obligation of such Party. Except as set forth on Schedule 3.4, the execution, delivery and performance of this Agreement and the Related Documents do not require the consent of or notice to any federal, state or local governmental authority or any other third party, except that notice must be provided to Medicare about change of ownership within 30 days of the Closing. Neither the execution nor the delivery of this Agreement and the Related Documents nor the consummation of the Transaction will conflict with or result in any violation of or constitute a default under any term of the Company’s articles of incorporation or other organizational documents, its bylaws, or any agreement, mortgage, debt instrument, indenture or other instrument by which the Company or the Shareholder is bound, or any judgment, decree, order, award, or any Laws (as defined in Section 3.7(a)) applicable to the Company. Neither the execution and delivery of this Agreement and the Related Documents nor the consummation of the transactions contemplated thereby will result in the creation of any lien, security interest, charge or encumbrance upon any of the assets of the Company (the “Assets”) or result in the cancellation, modification, revocation or suspension of any license, certificate, permit or authorization held by the Company.
3.5 Title to Property. Except as set forth in Schedule 3.5 and Permitted Liens, the Company has good and marketable title to all of its Assets, free and clear of all liens, claims, charges, encumbrances, leases, pledges, security interests, mortgages, defects in title, equities, covenants and other restrictions of any nature whatsoever. Schedule 3.5 also identifies all guaranties by the Shareholder of any debt relating to the Assets. All of such guaranties are valid and subsisting. True, correct and complete copies of such guaranties and all amendments, assignments and consents thereto have been furnished by the Company to Buyer.
3.6 Real Property.
(a) The Company owns no real property.
(b) Schedule 3.6(b) identifies and briefly describes the terms of all leases to which the Company is a party covering any real property used or owned by the Company. Schedule 3.6(b) also identifies all guaranties by the Shareholder of any such leases. All of such leases and guaranties are valid and subsisting. The consummation of the Transaction will not require the Company to obtain the consent or approval from any lessor, sub-lessor or sub-lessee who is a party to any of such leases, except as disclosed in Schedule 3.6(b). True, correct and complete copies of such leases and guaranties and all amendments, assignments and consents thereto have been furnished by the Company to Buyer.
4
3.7 Permits; Compliance with Laws and Litigation.
(a) Schedule 3.7(a) sets forth a complete and accurate list of all authorizations, approvals, consents, certificates, licenses, permits or franchises of or from any Governmental Entity (as hereinafter defined) or pursuant to any Law (as hereinafter defined) (collectively, the “Permits”) that are used or held for use in, necessary for or otherwise relating to the Business. The Company holds all Permits necessary for the lawful conduct of the Business under and pursuant to all statutes, laws, ordinances, rules, orders, ordinances or regulations (collectively, “Laws”) of any federal, state, local or foreign governmental department, commission, board, bureau, agency or instrumentality, including any federal or state courts (collectively, “Governmental Entity”), except where such failure would not have a Material Adverse Effect. All Permits have been legally obtained and maintained and are valid and in full force and effect. The Company is duly licensed to conduct the Business as presently conducted in all states in which the Business is conducted and, is in compliance with all of the terms and conditions of such licenses, except for the failure of which would not have a Material Adverse Effect. There has been no material change in the facts or circumstances reported or assumed in the application for or granting of any Permits. No outstanding violations are or have been, recorded in respect of any of the Permits. No proceeding is pending and no notice has been received by the Company or the Shareholder threatening, or to Sellers’ Knowledge otherwise threatened, to suspend, revoke, withdraw, modify or limit any Permit, and, to Sellers’ Knowledge, there is no fact, error or admission relevant to any Permit that would permit the suspension, revocation, withdrawal, modification or limitation of, or result in the threatened suspension, revocation, withdrawal, modification or limitation of, or in the loss of any Permit.
(b) Each employee and independent contractor of the Company that is required to be licensed to perform his/her healthcare duties for the Company that require a license holds a valid and unrestricted license to practice or perform those healthcare duties in the state(s) where he or she performs such duties for the Company, and has held such a valid and unrestricted license for the purposes identified in this Section 3.7(b) at all times while employed or contracted by the Company, except where such failure would not have a Material Adverse Effect.
(c) Except as set forth on Schedule 3.7(c), the Company and its officers, managers, employees, and contractors have operated the Business in compliance with all Permits and Laws, including but not limited to, those Laws that apply to regulatory matters primarily relating to patient healthcare, healthcare providers and healthcare services (including, without limitation, the Social Security Act, as amended, Sections 1128, 1128A and 1128B, 42 U.S.C. Sections 1320a-7, 7(a) and 7(b), including Criminal Penalties Involving Medicare or Medicaid, commonly referred to as the “Federal Anti-Kickback Statute” and the Social Security Act, as amended, Section 1877, 42 U.S.C. Section 1395nn (Prohibition Against Certain Referrals), commonly referred to as the “Stark Statute,” the statute commonly referred to as the “Federal False Claims Act,” the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”), Durable Medical Equipment, Prosthetics Orthotics, and Supplies Supplier Standards and Quality Standards, state and local equivalents to such statutes and the rules and regulations issued pursuant thereto (collectively, as amended from time to time, “Healthcare Laws”)), which are applicable to the Company, the Assets or the Business, except where such failure would not have a Material Adverse Effect. Except as set forth on Schedule 3.7(c), the Company has not received at its corporate address, and the Shareholder has no knowledge of any written notice or other written communication from any Governmental Entity at any time regarding (i) any actual, alleged, possible, or potential violation of, or failure to comply with, any Healthcare Laws or any other applicable laws, rules, regulations, ordinances or administrative orders, or (ii) any actual, alleged, possible, or potential obligations on the part of the Company to undertake, or to bear all or any portion of the cost of, any remedial action of any nature. For the past five years, the Company has not been served with any subpoenas, notices of investigation, or otherwise been provided with notice of any investigation from any Governmental Entity other than with respect to the Settlement Agreement.
5
(d) All claims, reports, schedules and/or returns required to be filed by the Company with any Governmental Entity have been timely filed and all such claims, reports, schedules and/or returns are complete and accurate in all material respects. The Company has no liabilities to any payer with respect to claims submitted. The Company has maintained substantially all records required to be maintained by the Food and Drug Administration, Drug Enforcement Administration and State Board of Pharmacy and the Medicare and Medicaid programs and the laws of all other applicable federal, state and local Governmental Entities as required by applicable Healthcare Laws. To the Seller’s Knowledge, there are no presently existing circumstances relating to the operations of the Company or otherwise that would result or would be reasonably likely to result in material violation of any such Healthcare Laws.
(e) There are no lawsuits, claims, proceedings or investigations pending or, to the Sellers’ Knowledge, threatened against, or affecting the Company, the Assets, the Business or the Shareholder, except as disclosed in Schedule 3.7(e). Neither the Company nor to the Sellers’ Knowledge, any of its employees, contractors or subcontractors have been convicted of, charged with or investigated for a Medicare, Medicaid or other Federal Health Care Program (as defined in 42 U.S.C. § 1320a-7b(f)) related offense, or convicted of, charged with or investigated for a violation of federal or state law relating to fraud, theft, embezzlement, breach of fiduciary duty or responsibility, financial misconduct, obstruction of an investigation or controlled substances. Neither the Company nor, to the Sellers’ Knowledge, any of its employees, contractors or subcontractors have been excluded or suspended from participation in Medicare, Medicaid or any other Federal Health Care Program, or have been debarred, suspended or are otherwise ineligible to participate in federal programs. Except as set forth on Schedule 3.7(e), neither the Company nor any of its employees, contractors or subcontractors have committed any offense which may reasonably serve as the basis for any such exclusion, suspension, debarment or other ineligibility. To the Seller’s Knowledge, the Company has not arranged or contracted with any individual or entity that is suspended, excluded or debarred from participation in, or otherwise ineligible to participate in a Federal Health Care Program or other federal program. There are no lawsuits, claims, or proceedings pending in which the Company is the plaintiff or claimant or that relate to the Company Shares, the Assets or the Business.
(f) There are no lawsuits, claims, suits, proceedings or investigations pending or, to the Sellers’ Knowledge, threatened, which involve the possibility of any judgment, order, award or other decision that might impair the ability of the Sellers to perform their respective obligations under this Agreement, or might impair the quality of title to the Assets or the Company Shares, or might adversely affect the normal operation of the Business, or might result in liability for damages or might otherwise adversely affect any of the Company’s right, title or interest in the Assets or the Business or the Shareholder’s right, title or interest in the Company Shares.
6
3.8 Unaudited Financial Statements.
(a) Attached, as Schedule 3.8(a)(i), are copies of the unaudited and compiled income statements and balance sheets of the Company for the year ended December 31, 2018, and for the nine (9) month period from January 1, 2019 through September 30, 2019 (collectively, the “Financial Statements”). The balance sheet dated September 30, 2019 shall be referred to as the “Most Recent Balance Sheet” and the income statement dated September 30, 2019 shall be referred to as the “Most Recent Income Statement” (and, together with the Most Recent Balance Sheet, the “Most Recent Financial Statements”). The Financial Statements are true, complete and correct and fairly present the financial condition and the results of operations of the Company in all material respects as of the respective dates and periods thereof. The assets of the Company to be acquired include all of the assets of the Company reflected in such Financial Statements and all assets acquired since the date of such Financial Statements, excepting only such assets as have been disposed of or consumed in the ordinary course of business or those that have become obsolete or unnecessary to the Company. The Financial Statements: (i) are in accordance with the books and records of the Company; (ii) are consistently applied with prior periods and the accounting methods applied by the Company for tax purposes, excluding however, the Most Recent Financial Statements; and (iii) have been prepared on an accrual basis and generally in accordance with generally accepted accounting practices (GAAP) applied by the Company on a consistent basis, except as set forth on Schedule 3.8(a)(ii).
(b) Except (i) to the extent reflected or reserved against in the Most Recent Balance Sheet or (ii) for unsecured current liabilities incurred since the date of the Most Recent Balance Sheet in the Ordinary Course of Business, the Company has no liabilities or obligations, whether accrued, absolute, contingent or otherwise, whether due or to become due and whether the amounts thereof are readily ascertainable or not, or any unrealized or anticipated losses from any commitments of a contractual nature, including Taxes (as defined below) with respect to or based upon the transactions or events occurring prior to the Closing. The Company will not have any Indebtedness as of the Closing Date other than Indebtedness set forth on the Most Recent Balance Sheet (including Equipment Indebtedness and Vehicle Lease Obligations set forth in Schedule 3.8(b)) incurred in the Ordinary Course of Business following the date of this Agreement. The Most Recent Balance Sheet does not include receivables or any payables or loans due to or from the Company for amounts due to or from the Shareholder other than the Shareholder Note.
3.9 Absence of Adverse Changes or Other Events. Except as set forth on Schedule 3.9, since the Most Recent Balance Sheet, the Company has not: (a) created or incurred any liability (absolute or contingent); (b) loaned any money or otherwise pledged the credit of the Company, or mortgaged, pledged or subjected to any lien or otherwise encumbered any of the Assets; (c) suffered any losses or any other event or condition of any character adverse to its business, or waived any rights of substantial value; (d) made any capital expenditures or capital additions or improvements other than in the Ordinary Course of Business; (e) directly or indirectly purchased, retired, redeemed or otherwise acquired any interests in, the Company Shares or other equity or ownership interests; (f) paid or promised to pay any bonuses or increased the compensation of the Shareholder or any other employees; (g) issued or sold any shares of its stock or rights, options or warrants to purchase its stock or membership interest, or any securities convertible into its stock or membership interest or redeemed or made any agreement to redeem any of its outstanding stock; (h) become bound by or entered into any contract, commitment or transaction other than in the Ordinary Course of Business; (i) entered into any contract or agreement to do or perform any of the foregoing actions; or (j) acquired or disposed of any assets except in the Ordinary Course of Business.
7
3.10 Employees.
(a) The Company is not a party to any employment agreement, written or oral, which it cannot terminate at will without liability to the Company (assuming fulfillment of any accrued benefits or retirement plan distributions as listed in Schedule 3.10(b)) and assuming compliance with all applicable laws and regulations, including, without limitation, anti-discrimination and equal employment opportunity and health care regulatory laws.
(b) Schedule 3.10(b) lists and briefly describes the Company’s pension, profit sharing, accrued benefit, retirement, or other employee benefit plans, and any health care, life insurance or other employee welfare plans and a complete copy of each such plan has been provided to Buyer. To Sellers’ Knowledge, each such plan complies and has been administered in all material respects in accordance with all applicable Laws, including the Employee Retirement Income Security Act of 1974, as amended, and the rules and regulations promulgated thereunder or in connection therewith, and the Code, as applicable.
(c) The names, titles and rates of compensation of all of the employees of the Company are listed in Schedule 3.10(c). Except as set forth on Schedule 3.10(c), none of the employees has indicated to the Company any intention to terminate his or her employment with the Company.
(d) The Company: (i) is not a party to any collective bargaining agreement, nor has the Company had any discussions or negotiations with any Person or group looking toward any such agreement; (ii) has not within the last five (5) years, experienced any strike, grievance, unfair labor practice claim or other labor difficulty; (iii) is unaware of any threatened strike, grievance, unfair practice claim or other labor difficulty, and there exists no reasonable basis for the assertion of any grievance or unfair labor practice claim or other charge or complaint against the Company by or before the National Labor Relations Board or any state, labor relations board or commission or representative thereof; (iv) is not aware of any filing by any employee or employee group seeking recognition as a collective bargaining representative or unit; and (v) has no reason to believe that any former employer of any of its employees is contemplating remedial action of any nature against such employee or the Company based on such employee having terminated the former employment and having become an employee of the Company. The Company has complied in all material respects with all applicable Laws relating to labor or labor relations or employment, including, without limitation, any provisions thereof relating to equal employment opportunity, wages, hours, employee safety, immigration control, drug testing, termination pay, vacation pay, fringe benefits, collective bargaining and the payment and/or accrual of the same and all taxes, insurance and all other costs and expenses applicable thereto, and the Company is not liable for any arrearage, or any taxes, costs or penalties for failure to comply with any of the foregoing. The Company has not incurred any liabilities, penalties or other charges under the Worker Adjustment and Retraining Notification Act or any similar state law.
8
3.11 Intellectual Property.
(a) Schedule 3.11 sets forth all the Company’s: (i) trademarks and service marks (registered or unregistered), trade dress, trade names and other names and slogans embodying business goodwill or indications of origin, all applications or registrations in any jurisdiction pertaining to the foregoing and all goodwill associated therewith; (ii) inventions, technology, computer programs and software (including password unprotected interpretive code or source code, object code, development documentation, programming tools, drawings, specifications and data), and all applications and patents pertaining to the foregoing, including re-issues, continuations, divisions, continuations-in-part, renewals or extensions; (iii) trade secrets, including confidential and other non-public information; (iv) writings, designs, software programs, mask works or other works, applications or registrations in any jurisdiction for the foregoing and all moral rights related thereto; (v) databases and all database rights; (vi) internet websites, domain names and applications and registrations pertaining thereto; and (vii) to the Sellers’ Knowledge, other intellectual property rights (all of such intellectual property in this Section 3.11(a) shall be referred to collectively as the “Company Intellectual Property”) that are used in the Business as currently conducted. The Company owns, and/or is properly and sufficiently licensed or otherwise possesses rights to use all the Company Intellectual Property.
(b) To the Seller’s Knowledge, there are no infringements of any Company Intellectual Property by any third party and the conduct of the Business as currently conducted or as currently planned to be conducted does not infringe any proprietary right of a third party.
(c) Schedule 3.11(c) sets forth a complete list of all patents, trademarks, registrations and pending registration applications pertaining to the Company Intellectual Property owned by the Company (collectively, the “Registered Intellectual Property”). All such Registered Intellectual Property is owned by the Company free and clear of liens or encumbrances of any nature.
(d) Schedule 3.11(d) sets forth a complete list of all licenses, sublicenses and other agreements in which the Company has granted rights to any Person or entity to make, use, sell, distribute or service any products or services which utilize or incorporate Company Intellectual Property and a separate list of all material licenses, sublicenses and other agreements in which the Company has received rights from any Person to use Company Intellectual Property (the “Licensed Intellectual Property”). As a result of the execution and delivery of this Agreement or any of the Related Documents or the performance of its or his respective obligations under this Agreement or the Related Documents, neither the Company nor the Shareholder shall be in breach of any license, sublicense or other agreement relating to the Licensed Intellectual Property.
(e) The Company owns or has properly and sufficiently licensed or otherwise has the right to use all computer software currently used by the Company in the Business.
9
3.12 Customer Contracts and Business Documents. All of the Customer Contracts and Business Documents that are material to the Business are listed in Schedule 3.12. Other than the Customer Contracts and the Business Documents set forth on Schedule 3.12, the real property leases set forth on Schedule 3.6(b) (the “Real Property Leases”), the licenses, sublicenses and other agreements set forth on Schedule 3.11(d) (the “IP Licenses”), and the agreements set forth on Schedule 3.14 (the “Other Contracts” and together with the Customer Contracts, the Business Documents and the IP Licenses, the “Company Contracts”), the Company does not have any other presently existing material contracts, agreements, leases, licenses or commitments, whether written or oral, affecting or relating to the Business. Except as set forth on Schedule 3.12, all of the material Company Contracts are valid and enforceable against the Company and are in full force and effect in accordance with their terms, and the consummation of the Transaction will not require obtaining the consent of or providing notice to any party to a Company Contract. The Company has delivered or made available copies of all of the Company Contracts to Buyer as of the Closing Date. To the Seller’s Knowledge, the Business and all equipment used in connection with it are now being utilized, operated and maintained, in all material respects, in conformity with the Company Contracts, and all applicable Laws. The Company has not at any time in any manner failed to so utilize, operate and maintain the Business in a manner that could now or hereafter result in cancellation or termination of any of the Company Contracts or in liability for damages under any of the Company Contracts or any applicable Laws, nor has either the Company or, to the Sellers’ Knowledge, the other party(s) to the Company Contracts, defaulted in their respective obligations pursuant to any of the Company Contracts, which default could result in the cancellation of any Company Contract or adversely affect the rights of the Company under the Company Contract. To the Sellers’ Knowledge, no party has indicated its intent to cancel any of the Company Contracts. The Company is not a party to any franchise, license, distributor or other similar type of agreement.
3.13 Broker or Finder. The party retaining any broker, finder or investment banker in connection with this Agreement will pay all amounts payable to such broker, finder or investment banker.
3.14 Contracts. Except as set forth in Schedule 3.14, the Company is not a party to or bound by any written or oral: (a) agreement or understanding not made in the Ordinary Course of Business; (b) contract for personal services not terminable at will without liability to the Company; (c) continuing contract for the future purchase of materials, supplies, machinery or other equipment; (d) contracts or commitments for capital expenditures in excess of $2,000 in the aggregate; (e) loan, credit or financing agreements, including all agreements for any commitments for future loans, credit or financing; or (f) guarantee or suretyship agreement. Schedule 3.14 also identifies all guaranties by the Shareholder relating to the Business and any Assets of the Company. All of such guaranties are valid and subsisting. True, correct and complete copies of such guaranties and all amendments, assignments and consents thereto have been furnished by the Company to Buyer.
3.15 Insurance.
(a) Schedule 3.15 lists and describes all insurance policies currently insuring any of the Assets or relating to the Business. All such policies are on (and for the applicable statute of limitations period plus one year have been on) an “occurrence basis,” which means, for example, that if a claim arose after the Closing Date for an event which occurred prior to the Closing Date, the Company’s applicable insurance policy in existence on the date such event occurred would cover such claim. All such policies are in full force and effect and the Company has not received any notice of cancellation with respect thereto. Except as disclosed in Schedule 3.15, during the past five (5) years, (i) no application by the Company for insurance with respect to the Assets or the Business has been denied for any reason, and (ii) the Company has had no claim made against it by any customer that would adversely affect the Company’s insurance rating. Attached to Schedule 3.15 is a copy of the Company’s insurance claims history for the past five (5) years for each of the policies listed in Schedule 3.15 as well as for any claims that were self-insured.
10
(b) All policies to which the Company is a party or that provide coverage to the Shareholder, director or officer of the Company: (i) taken together, provide adequate insurance coverage for the Assets and the operations of the Company for all risks normally insured against by a company carrying on the same business or businesses as the Company; (ii) are sufficient for compliance with all applicable Laws, rules, regulations and orders and all material Customer Contracts and Business Documents; and (iii) to the Sellers’ Knowledge, will continue in full force and effect following the consummation of the Transaction.
(c) Upon request by the Shareholder, the Company and Buyer shall use commercially reasonable efforts to cooperate with the Shareholder after the Closing to transfer ownership of any life insurance policies held by the Company on the Shareholder or Ashley G. Bailey to such individuals.
3.16 Environmental Matters. Other than storage and sale of oxygen in the Ordinary Course of Business, the Company has not used, generated, stored or disposed of any Hazardous Materials on any property owned, occupied or leased by the Company. To the Sellers’ Knowledge, no Hazardous Materials have been used, generated, stored or disposed of by any previous owner or other third party on any property owned, occupied or leased by the Company.
3.17 Accounts Receivable. All accounts receivable of the Company that are reflected on the Most Recent Balance Sheet or on the accounting records of the Company as of the Closing Date (collectively, the “Accounts Receivable”) represent or will represent valid obligations arising from sales actually made or services actually performed in the Ordinary Course of Business. Schedule 3.17 contains a complete and accurate list of all Accounts Receivable as of the date of the Most Recent Balance Sheet, which list sets forth the aging of such Accounts Receivable, including those receivables which have been outstanding for more than 180 days.
3.18 Banks, Officers and Powers of Attorney. Schedule 3.18 lists: (a) all banks (with account numbers) in which the Company has an account or safe deposit box and the names of all persons authorized to draw thereon or have access thereto; (b) the names of all incumbent directors and officers of the Company; and (c) the names of all persons holding powers of attorney from the Company and a summary statement of the terms thereof.
3.19 Certain Business Relationships with Affiliates. Except as disclosed in Schedule 3.19, neither the Shareholder nor any Affiliate of the Company or the Shareholder: (a) owns any property or right, tangible or intangible, which is used in the Business, (b) has any claim or cause of action against the Company, (c) owes any money to or is owed money by the Company other than as may be reflected on the Most Recent Balance Sheet or for expenses required to be reimbursed in the Ordinary Course of Business, (d) have or have had any ownership, leasehold or other interest, whether direct or indirect, in any customer of the Business, (e) are or have been employed in any sales or management position, whether directly or indirectly, by any customer of the Business, or (f) are or have been able to control or authorize the purchase or procurement of any pharmacy or home health care services or related products by any customer from the Business.
11
3.20 Questionable Payments. To the Sellers’ Knowledge, neither the Company, nor any of its directors, officers, agents, employees or other Person or entity associated with or acting on behalf of the Company, directly or indirectly, has: (i) used any of the Company’s funds for unlawful contributions, gifts, entertainment or other unlawful payments or expenses relating to political activity, (ii) made any direct or indirect unlawful payments to government officials or employees, or foreign government officials or employees, from the Company’s funds, (iii) established or maintained any unlawful or unrecorded fund of the Company’s monies or other assets, (iv) made any false or fictitious entries on the books of account of the Company or (v) made or received any bribe, payoff, or other influence payment.
3.21 Medicare and Medicaid Program Participation. The Company (a) is currently participating in good standing with the Medicare Programs and applicable Medicaid Programs (collectively, the “Programs”) in the geographic areas in which the Company provides services or products, (b) is eligible to receive payment under those Programs for which the Company is a participating provider, (c) and is a party to valid provider agreements related to such programs, true and complete copies of which have been supplied to Buyer. The Company has obtained and maintains a Medicare Provider Transaction Number and Medicaid provider numbers for various states. Schedule 3.21 of the Disclosure Schedules contains is a list of all Medicare and Medicaid provider numbers held by the Company. The Sellers have not received any notice indicating that such participation may be terminated or withdrawn nor have any reason to believe that such qualification may be terminated or withdrawn. Except as set forth in Schedule 3.21, there are no pending appeals, overpayment determinations, adjustments, challenges, audit, litigation or notices of intent to open Medicare or Medicaid claim determinations or other reports required to be filed by the Company. The Company shall conduct a search of relevant databases as they exist prior to the Closing Date to confirm that neither the Company, nor any Affiliate, the Shareholder, officer, director, or employee of the Company is identified as “excluded individuals or entities” as said term is defined by Section 1128(a) of the Social Security Act (codified at 42 U.S.C. Section 1320a-7).
3.22 Stark Law. The conduct of the Business by Buyer and/or the Company upon and after the Closing Date in a manner consistent with the past practices of the Company, and having the same officers, directors, employees as the companies had immediately prior to the Closing Date will not constitute a violation of 42 U.S.C. 1395nn.
3.23 Tax Matters.
(a) The Company has timely filed or caused to be timely filed or will timely file or cause to be timely filed with the appropriate taxing authorities all returns, statements, forms and reports for Taxes (as defined in Section 3.23(l)) (the “Returns”) that are required to be filed by, or with respect to, the Company on or prior to the Closing Date. The Returns have accurately reflected and will accurately reflect in all material respects all liability for Taxes of the Company for the periods covered thereby. Except as set forth on Schedule 3.23(a), the Company has paid all Taxes on or before the date on which such Taxes were due and has adequately accrued or reserved for on the Most Recent Balance Sheet all Taxes which are not yet due and payable.
12
(b) All Taxes which the Company is (or was) required by law to withhold or collect have been duly withheld or collected and have been or will be timely paid over to the proper authorities to the extent due and payable.
(c) The Company is not and has never been a publicly traded partnership for United States federal income tax purposes.
(d) The Company is not liable for any amounts in respect of Taxes imposed on or with respect to any other Person or entity, whether by law or by contract.
(e) Except as set forth on Schedule 3.23(a), no United States federal, state or local or foreign audits, examinations, investigations or other administrative proceedings or court proceedings are, to the Seller’s Knowledge, currently pending or threatened in writing with regard to any income Tax or any other material Tax of, or any income Return or other material Return filed by or on behalf of, the Company. Except as set forth on Schedule 3.23(a), there is no claim against the Company for any Tax, and no assessment, deficiency or adjustment has been asserted, proposed or threatened in writing with respect to any Return or Tax with respect to the Company.
(f) There are no outstanding waivers, extensions or comparable consents regarding the application of the statute of limitations with respect to any Taxes or Returns of the Company.
(g) No closing agreements, private letter rulings or technical advice memoranda or similar agreements or rulings with respect to Taxes have been entered into or issued by any taxing authority with respect to the Company.
(h) No power of attorney has been granted by or with respect to the Company with regard to any material matters relating to Taxes.
(i) No taxing authority has asserted that the Company should be filing Returns in any jurisdiction where the Company has not been filing Returns.
(j) The Company has not participated in any (i) “tax shelter” within the meaning of Section 6111 of the Code (as in effect prior to the enactment of Public Law 108-357) (or any comparable laws of jurisdictions other than the United States) or (ii) “reportable transaction” within the meaning of Treasury Regulations Section 1.6011-4 (as in effect at the relevant time) (or any comparable laws of jurisdictions other than the United States).
(k) No Tax is or will be required to be withheld under Section 1445 of the Code as a result of the acquisition of the Company Shares by Buyer pursuant to this Agreement.
(l) For the purposes of this Agreement, “Tax” or “Taxes” means all taxes, assessments, charges, duties, fees, levies or other governmental charges, including, without limitation, all federal, state, local, foreign and other income, franchise, profits, capital gains, membership interest, transfer, sales, use, occupation, property, excise, severance, windfall profits, stamp, license, payroll, withholding and other taxes, assessments, charges, duties, fees, levies or other governmental charges of any kind whatsoever (whether payable directly or by withholding and whether or not requiring the filing of a Return), all estimated taxes, deficiency assessments, additions to tax, penalties and interest and shall include any liability for such amounts as a result either of being a member of a combined, consolidated, unitary or affiliated group or of contractual obligations to indemnify any Person or other entity.
13
(m) The parties acknowledge and agree that the Shareholder shall be entitled to the proceeds of any Tax refund received by the Company after the Closing on account of the Company’s 2018 federal and state tax returns (“2018 Refunds”). If the Company receives the 2018 Refunds prior to the payment to the Shareholder of the Cash Holdback Portion, it shall add the 2018 Refunds to the Cash Holdback Portion and disburse the same as provided herein. If the Company receives the 2018 Refunds after payment to the Shareholder of the Cash Holdback Portion, it shall promptly remit the same to the Shareholder.
3.24 Tax Advisors. Sellers have reviewed with their own tax advisors the U.S. federal, state and local and non-U.S. tax consequences of the transactions contemplated by this Agreement. With respect to such matters, the Shareholder is relying solely on such advisors and not on any statements or representations of Buyer or any of its principals, agents, written or oral. The Shareholder understands and acknowledges that he (and not Buyer) shall be responsible for his own tax liability that may arise as a result of the transactions contemplated hereby.
3.25 Billing Practices. All billing practices of the Company with any commercial insurance payor, managed care plan, other prepaid plan, health care service plan or other third party payor, including any Governmental Entity or private payor (collectively “Payors”), including amounts the Company is entitled to receive under the Programs and from cash payors, are and have been in material compliance with all applicable Laws and/or billing guidelines of the Programs and the Payors. Except as set forth on Schedule 3.25, the Company has not intentionally or negligently billed or received any payment or reimbursement in excess of amounts allowed by applicable Law or contract. There are no claims, actions, or appeals pending (and the Company has not filed any claims or reports that should result in any such claims, actions or appeals) before any commission, board or agency, including, without limitation, any fiscal intermediary or carrier or the Centers for Medicare & Medicaid Services (“CMS”), with respect to any state or federal Medicare or Medicaid claims filed on behalf of the Company.
3.26 Certain Actions. Except as set forth on Schedule 3.26, the Company is not a party to a corporate integrity agreement with the Office of the Inspector General of the Department of Health and Human Services or any other Governmental Entity, or has any reporting obligations pursuant to any settlement agreement entered into with any Governmental Entity.
4. | REPRESENTATIONS, WARRANTIES AND COVENANTS OF BUYER |
As an inducement to the Sellers to enter into this Agreement and to consummate the transactions contemplated by this Agreement, Buyer represents, warrants and covenants to the Sellers as hereafter set forth in this Section 4, and acknowledge that Sellers are relying upon such representations, warranties and covenants contained in this Section 4 as being true and correct:
4.1 Authority. Buyer is a corporation duly incorporated and organized, validly existing and in good standing under the laws of Delaware. Buyer has full corporate power and authority to enter into this Agreement and the Related Documents, to consummate the transactions contemplated hereby and thereby and to perform its obligations hereunder and thereunder, and the shareholders and board of directors of Buyer has determined it to be in the best interest of the respective corporations to consummate the Transaction. The execution, delivery and performance by Buyer of this Agreement and the Related Documents has been duly and validly approved by all necessary corporate action. This Agreement and each Related Document to which Buyer is a party, upon its execution and delivery, constitutes the legal, valid and binding obligation of Buyer.
14
4.2 No Conflict; Consents.
(a) The execution, delivery and performance of this Agreement by Buyer, and the consummation by Buyer of the transactions contemplated hereby, will not (i) violate any provision of the articles of incorporation or by-laws (or other comparable governing documents) of Buyer, (ii) result in a violation or breach of, or constitute (with or without the giving of notice, the lapse of time or both) a default (or give rise to any right of termination or cancellation of obligations) under, any of the terms, conditions or provisions of any contract, to which Buyer is a party or by which any of its properties or assets are bound, or (iii) violate any Law applicable to Buyer or by which any of its properties or assets are bound, other than, in the case of clauses (ii) and (iii) above, any such violations, breaches, defaults, or rights of termination or cancellation of obligations which would not prevent or materially impair or delay Buyer’s ability to consummate the transactions contemplated hereby.
(b) Except as set forth on Schedule 4.2(b), the execution, delivery and performance of this Agreement and the Related Documents by Buyer, and the consummation by Buyer of the transactions contemplated hereby, will not require any consent, waiver, approval, authorization or other Permit of, or filing or registration with or notification to, any Governmental Authority, except for (i) as may be required as a result of any facts or circumstances related to the Sellers, and (ii) such consents, waivers, approvals, authorizations, Permits, filings, registrations or notifications which, if not made or obtained, would not prevent or materially impair or delay Buyer’s ability to consummate the transactions contemplated hereby.
(c) Neither Buyer, nor any of its Affiliates, owns interests in any Person or is aware of any facts or circumstances pertaining to Buyer or its Affiliates (including any possible other transaction pending or under consideration by Buyer or any of its Affiliates) which (i) reasonably could be expected to prevent or materially impair or delay the consummation of the transactions contemplated by this Agreement, or (ii) could cause a Governmental Authority to seek to or impose a condition or conditions that could prevent or materially impair or delay the consummation of the transactions contemplated hereby.
4.3 Brokers and Finders. Buyer has not, nor has any of its Affiliates employed, nor is it subject to any valid claim of liability to, any broker, finder, consultant or other intermediary in connection with the transactions contemplated by this Agreement.
4.4 Investment Intent. Buyer is acquiring the Company Shares sold to it for its own account for investment purposes only and not with a view to any public distribution thereof or with any intention of selling, distributing or otherwise disposing of the Company Shares in a manner that would violate the registration requirements of the Securities Act of 1933 (as amended) (the “Securities Act”) or any similar provisions of any applicable Law. Buyer agrees that the Company Shares may not be sold, transferred, offered for sale, pledged, hypothecated or otherwise disposed of without registration under the Securities Act and any other applicable securities Laws, except pursuant to an exemption from such registration under the Securities Act and such Laws.
15
5. | PRE-CLOSING COVENANTS |
5.1 Access and Investigation. Between the date of this Agreement and the Closing Date, Sellers will, and will cause their representatives to (i) afford Buyer and its agents and representatives (collectively, “Buyer’s Advisors”) full and free access to the Company’s personnel, properties, contracts, books and records, and other documents and data, (ii) furnish Buyer and Buyer’s Advisors with copies of all such contracts, books and records, and other existing documents and data as Buyer may reasonably request, and (iii) furnish Buyer and Buyer’s Advisors with such additional financial, operating, and other data and information as Buyer may reasonably request, provided access does not such violate HIPAA or any other state or Federal confidentiality Law.
5.2 Operation of the Business. Between the date of this Agreement and the Closing Date, the Company will conduct the Business only in the Ordinary Course of Business, consistent with past practice and its contemplated practices, and confer with Buyer concerning operational matters of a material nature.
5.3 Required Approvals.
(a) As promptly as practicable after the date of this Agreement, the Company will make all required filings required to be made by it in order for it to consummate the Transaction. Between the date of this Agreement and the Closing Date, the parties will (i) cooperate with Buyer with respect to all filings that Buyer elect to make or are required to make in connection with the Transaction, and (ii) cooperate with Buyer in obtaining all consents identified by Buyer.
(b) As promptly as practicable after the date of this Agreement, the Sellers will execute any consent of the Sellers necessary under applicable law and the Company’s charter or bylaws or other organizational documents to approve the Transaction and the performance of this Agreement and the Related Documents.
5.4 Notification. Between the date of this Agreement and the Closing Date, the Company and the Shareholder will promptly notify Buyer in writing if the Company or the Shareholder is aware of any fact or condition that causes or constitutes a breach of any of their representations and warranties as of the date of this Agreement, or if they become aware of the occurrence after the date of this Agreement of any fact or condition that would (except as expressly contemplated by this Agreement) cause or constitute a breach of any such representation or warranty had such representation or warranty been made as of the time of occurrence or discovery of such fact or condition.
5.5 Public Announcements. Except as may be required by applicable law or regulations, prior to the Closing, the Parties agree to consult promptly with each other prior to issuing any press release or otherwise making any public statement or disclosure with respect to the Transaction or this Agreement.
16
6. | CONDITIONS PRECEDENT TO OBLIGATIONS OF BUYER |
The obligations of Buyer to consummate the transactions contemplated hereby are subject to the satisfaction, at or prior to the Closing, of each of the following conditions (any of which may be waived by Buyer in whole or in part):
6.1 Buyer’s Satisfaction by Due Diligence. This Agreement is, in all respects, conditional upon Buyer being satisfied that the Company Shares are suitable for Buyer’s purchase following Buyer carrying out a due diligence and verification of the Business.
The date for fulfillment of this due diligence condition is the Agreement Date. The parties acknowledge that this due diligence condition is inserted for the sole benefit of Buyer and may at any time prior to this Agreement being voided be waived by Buyer giving written notice of waiver to the Sellers.
6.2 Accuracy of Representations and Warranties. Each of the representations and warranties of the Sellers in this Agreement must have been accurate in all material respects as of the date of this Agreement and must be accurate as of the Closing Date as if made on the Closing Date. Buyer must have completed all due diligence and the results of which are satisfactory to Buyer in its sole and absolute discretion.
6.3 Sellers’ Performance. All of the covenants and obligations that Sellers are required to perform or to comply with pursuant to this Agreement at or prior to the Closing must have been duly performed and complied with in all material respects.
6.4 Documents, Certificates and Other Items. The Sellers will have delivered or caused to be delivered to Buyer:
(a) Delivery by the Shareholder of duly executed assignments of the Company Shares;
(b) A current Certificate of Existence issued by the Secretary of State of the Commonwealth of Kentucky, such certificate dated not more than two (2) days prior to the Closing Date;
(c) a certificate of the Company certifying (i) a true and complete copy of the Company’s articles of incorporation, (ii) a true and complete copy of the Company’s Bylaws , and (iii) resolutions of the directors of the Company and the Shareholder approving and authorizing the Company’s execution this Agreement and the Related Documents and the Company’s performance of its obligations under this Agreement and the Related Documents, and (iv) true and complete copies of the minutes of any meeting of the Shareholder or of any actions taken by the Shareholder without a meeting;
(d) A certificate signed by the Shareholder, individually, and of an officer of the Company, stating that the conditions specified in Sections 6.2 and 6.3 have been satisfied;
17
(e) Non-Competition Agreement executed and delivered by the Shareholder in the form attached hereto as Exhibit A (the “Non-Competition Agreement”);
(f) Employment Agreement, executed and delivered by Ashley G. Bailey in the form attached hereto as Exhibit B (the “Employment Agreement”);
(g) A certificate executed by the Shareholder, satisfying the requirements of Treasury Regulations Section 1.1445-2(b)(2), stating that the Shareholder is not a “foreign person”;
(h) New lease agreements for the Prestonsburg, Kentucky location (the “Lease Agreements”) and consents to the Transaction by landlord of leases between the Company, as tenant, and the respective landlord of each facility leased by the Company, in each case duly executed by the landlord thereof and in form satisfactory to Buyer and the Sellers;
(i) The Sellers shall have executed and delivered a Closing Statement in form mutually agreed by Buyer and the Sellers (the “Closing Statement”); and
(j) All other documents and instruments required under this Agreement or reasonably requested by Buyer in connection with the consummation of the transactions contemplated by this Agreement.
6.5 Adverse Change. Since the date of the Most Recent Balance Sheet, there has been no Material Adverse Change.
6.6 Indebtedness.
(a) On the Closing Date, the Company will have no outstanding liabilities for any indebtedness or other liability (including capital leases), except for the following: (i) operating lease obligations which are “in terms”; and (ii) trade payables which are “in terms” and do not exceed $750,000 in the aggregate (to the extent the trade payables exceed the $750,000 limit, such excess shall be deducted from the Purchase Price). All of the following shall be satisfied in full prior to Closing (or, alternatively, at the option of the Buyer, remain in place and deducted from the Purchase Price pursuant to Section 1.2(b)): (i) Company Bank and Lease Indebtedness, (ii) Company Other Indebtedness, (iii) any other indebtedness of the Company not expressly assumed hereunder. All Assets of the Company will be free and clear of liens, security interests, claims, mortgages or other encumbrances of any kind.
(b) The Sellers shall cause the Company to deliver to Buyer not less than two (2) Business Days prior to the Closing Date a certificate setting forth the Indebtedness of the Company as of the Closing Date and the Estimated Net Non-Cash Working Capital (the “Estimated Closing Date Certificate”). Within 60 days after the Closing Date, Buyer shall prepare and deliver to the Shareholder a statement (the "Closing Date Statement"), setting forth its calculation of the Company’s Indebtedness and the Net Non-Cash Working Capital and any resulting post-Closing adjustments (the “Post-Closing Adjustments”) due to a difference between the estimated Indebtedness and the Estimated Net Non-Cash Working Capital, each as reflected on the Closing Date Statement.
18
(c) Examination and Review.
(i) After receipt of the Closing Date Statement, the Shareholder and his accountants and advisors shall have 30 days (the "Closing Review Period") to review the Closing Date Statement. During the Closing Review Period, the Shareholder and the Company's accountants and advisors shall have full access to the books and records of the Company, the personnel of, and work papers prepared by, Buyer and/or Buyer's accountants to the extent that they relate to the Closing Date Statement and to such historical financial information (to the extent in Buyer's possession) relating to the Closing Date Statement as the Shareholder may reasonably request for the purpose of reviewing the Closing Date Statement and to prepare a Closing Statement of Objections (as defined below), provided, that such access shall be in a manner that does not unreasonably interfere with the normal business operations of Buyer or the Company.
(ii) On or prior to the last day of the Closing Review Period, the Shareholder may object to the Closing Date Statement by delivering to Buyer a written statement setting forth the Shareholder’s objections in reasonable detail, indicating each disputed item or amount and the basis for the disagreement therewith (the "Closing Statement of Objections"). If the Shareholder fails to deliver the Closing Statement of Objections before the expiration of the Closing Review Period, the Closing Date Statement and the Post-Closing Adjustments shall be deemed to have been accepted by the Shareholder. If the Shareholder delivers the Closing Statement of Objections before the expiration of the Closing Review Period, Buyer and the Shareholder shall negotiate in good faith to resolve such objections within 30 days after the delivery of the Closing Statement of Objections (the "Closing Resolution Period"), and, if the same are so resolved within the Closing Resolution Period, the Post-Closing Adjustment and the Closing Date Statement, with such changes as may have been previously agreed in writing by Buyer and the Shareholder, shall be final and binding.
(iii) If the Buyer and the Shareholder are unable to resolve any items in dispute relating to the Closing Statement within 30 days after the date of Buyer’s receipt of the Closing Statement of Objections (or such other period as the Parties may agree), the Buyer and the Shareholder shall submit the dispute to a mutually acceptable independent public accounting firm that is not currently performing services (and has not within the previous 5 years performed services) for Buyer or the Shareholder or the Company (the “Independent Accountant”), to resolve all items remaining in dispute, and such determination by the Independent Accountant shall be final, binding and conclusive on the Parties. The Independent Accountant, in undertaking the tasks to be performed by it as provided herein, shall act as an expert and not as an arbitrator. Buyer and the Shareholder may present to the Independent Accountant their respective positions regarding the dispute (provided that, for greater certainty, such presentations are limited to matters described in the Closing Statement of Objections ), and each of the Buyer and the Shareholder shall have the right to present additional documents, materials and other information, and make an oral presentation to the Independent Accountant, regarding such dispute and the Independent Accountant shall consider such additional documents, materials and other information and such oral presentation. Any such other documents, materials or other information shall be copied to each of Buyer and the Shareholder and each of Buyer and the Shareholder shall be entitled to attend any such oral presentation. The parties shall use commercially reasonable efforts to cause the Independent Accountant to complete its work and render its determination in writing within 30 calendar days of its engagement.
19
(d) Payment of Post-Closing Adjustment.
(i) If the Post-Closing Adjustment, as finally resolved, is a negative number, then any amounts owing by the Shareholder pursuant to this Section 6.6(d)(i) shall be offset against the Cash Holdback Portion.
(ii) If the Post-Closing Adjustment, as finally resolved, is a positive number, then Buyer shall pay, no later than five (5) Business Days after the Post-Closing Adjustment is finally resolved the Post-Closing Adjustment to the Shareholder in immediately available funds.
(iii) Any payments made pursuant to this Section 6.6(d) shall be treated as an adjustment to the Purchase Price by the parties for Tax purposes, unless otherwise required by Law.
7. | CONDITIONS PRECEDENT TO OBLIGATIONS OF SELLERS |
The obligations of the Sellers to consummate the transactions contemplated hereby are subject to the satisfaction, at or prior to the Closing, of each of the following conditions (any of which may be waived by Sellers, in whole or in part):
7.1 Accuracy of Representations and Warranties. Each of the representations and warranties of Buyer in this Agreement must have been accurate in all material respects as of the date of this Agreement and must be accurate as of the Closing Date as if made on the Closing Date.
7.2 Buyer’s Performance. Each of the covenants and obligations that Buyer is required to perform or to comply with pursuant to this Agreement at or prior to the Closing must have been duly performed and complied with in all material respects.
7.3 Documents, Certificates and Other Items. Buyer will have delivered the following to the Shareholder:
(a) All of the documents or instruments required to be delivered by Buyer under this Agreement;
20
(b) All other documents and instruments reasonably required by the Sellers in connection with the consummation of the transactions contemplated by this Agreement;
(c) A certificate signed by an officer of Buyer stating that the conditions specified in Sections 7.1 and 7.2 have been satisfied;
(d) Buyer shall have executed and delivered the Lease Agreement;
(e) Buyer shall have executed and delivered the Employment Agreement and the Non-Competition Agreement;
(f) Buyer shall have executed and delivered the Closing Statement; and
(g) All other documents and instruments required under this Agreement or reasonably requested by the Sellers in connection with the consummation of the transactions contemplated by this Agreement.
8. | INDEMNIFICATION |
8.1 Indemnification by the Shareholder.
(a) The Shareholder agrees to indemnify, hold harmless, defend and bear all costs of defending Buyer and its respective past, present and future employees, directors, officers, stockholders, agents and attorneys (collectively, the “Buyer Indemnified Parties”), from, against and with respect to any and all damage, loss, deficiency, expense (including any reasonable attorney and accountant fees, legal costs or expenses), action, suit, proceeding, demand, assessment or judgment to or against the Buyer Indemnified Parties (collectively, “Buyer’s Aggregate Net Loss”) arising out of or in connection with:
(i) Any breach or inaccuracy of any representation or warranty of the Sellers contained in this Agreement;
(ii) Any claim by any person asserting any ownership interest in or rights to the Business or to acquire any equity interest of the Company and related to the time period prior to the Effective Date;
(iii) Fees and expenses of persons engaged by the Sellers in connection with the negotiation and execution of this Agreement or consummation of the transactions contemplated hereby;
(iv) Business activities of the Company prior to the Effective Date including, but not limited to, those arising from any services or products provided by the Company prior to the Effective Date (excluding however, customary warranty and service work performed by the Company in the Ordinary Course of Business prior to the Effective Date and business activities of the Company related to the Equipment Indebtedness and Vehicle Lease Obligations for the time period after the Effective Date);
21
(v) Claims by third parties made against the Buyer Indemnified Parties after the Effective Date but arising from or relating to any action, inaction, event, occurrence or circumstance occurring or existing prior to the Effective Date (excluding however, customary warranty and service work performed by the Company in the Ordinary Course of Business prior to the Effective Date and claims related to the Equipment Indebtedness and Vehicle Lease Obligations for the time period after the Effective Date);
(vi) Any violation of, or nonperformance by, the Shareholder of any of his covenants or agreements contained in this Agreement or in any Related Document;
(vii) That certain personal property tax appeal and proceeding related to the Company’s 2014 taxes; and
(viii) Any claim arising under the Settlement Agreement.
8.2 Indemnification by Buyer.
(a) Buyer agrees to indemnify, hold harmless, defend and bear all costs of defending the Shareholder and his heirs and assigns, agents and attorneys (collectively, the “Shareholder Indemnified Parties”), from, against and with respect to any and all damage, loss, deficiency, expense (including any reasonable attorney and accountant fees, legal costs or expenses), action, suit, proceeding, demand, assessment or judgment to or against the Shareholder Indemnified Parties arising by virtue of the Shareholder’s status as a shareholder, officer, employee, director or agent of the Company or his sale of the Company Shares pursuant to this Agreement (collectively, the “Shareholder’s Aggregate Net Loss”) arising out of or in connection with:
(i) Business activities of the Company occurring on and after the Effective Date, including by not limited to, those arising from any service or products provided by the Company after the Effective Date (other than those arising out of or in connection with any breach, violation, nonperformance or activities of the Shareholder covered by Section 8.1(a));
(ii) Any breach or inaccuracy of any representation or warranty of Buyer contained in this Agreement or in any Related Document;
(iii) Fee and expenses of persons engaged by Buyer or its Affiliates in connection with the negotiation and execution of this Agreement or consummation of the transactions contemplated hereby;
(iv) Any violation of, or nonperformance by Buyer of any of its covenants or agreements contained in this Agreement or in any Related Document; and
22
(v) Claims by third parties made against the Shareholder Indemnified Parties after the Effective Date but arising from or relating to any action, inaction, event, occurrence or circumstance occurring or existing after the Effective Date;
(vi) the Equipment Indebtedness and Vehicle Lease Obligations for the time period after the Effective Date; and
(vii) claims made by third parties against the Shareholder Indemnified Parties after the Effective Date arising from or relating to any and all guarantees of the Shareholder in respect of liabilities and Indebtedness of the Company expressly retained by the Company and disclosed to Buyer hereunder, and without duplication of any amounts reflected in the calculation of Net Working Capital, including without limitations, the third party leases, Equipment Indebtedness, Vehicle Lease Obligations and vendors and suppliers of the Company if such guarantees are not terminated prior to the Closing Date (collectively, the “Guarantees”).
8.3 No Duplicate Recovery. In the event an indemnified party recovers damages in respect of an indemnification claim (by insurance or otherwise), no other indemnified party may recover the same damages in respect of a claim for indemnification under this Agreement.
8.4 Tax Treatment of Indemnity Payments. The Sellers and Buyer agree that any indemnification payments made pursuant to Section 8 of this Agreement shall be treated for all Tax purposes as an adjustment to the Purchase Price unless otherwise required by Law.
8.5 Survival of Indemnity Obligations. The rights of Buyer and the Sellers to assert indemnification claims under Section 8 will survive the Effective Date and will expire (a) as to claims arising relating to a breach of Sections 3.2 (Capitalization), 3.3 (Ownership of Company Shares), 3.4 (Authority of Sellers), 3.7 (Permits; Compliance with Laws and Litigation), 3.16 (Environmental Matters), 3.20 (Questionable Payments), 3.21 (Medicare and Medicaid Program Participation), 3.22 (Stark Law), 3.23 (Tax Matters), 4.1 (Authority), and 4.4 (Investment Intent) (collectively the “Fundamental Representations”), and claims for fraud and with respect to undisclosed liabilities, on the date on which the running of the statute of limitations with respect to any such claim will bar the assessment and collection of such claim, and (b) as to all other claims, eighteen (18) months from and after the Closing Date.
8.6 Notice of Claims. If any claim is made by or against a party which, if sustained, would give rise to a liability of the other party under this Section 8, that party (the “Claiming Party”) will promptly cause a written notice of the claim to be delivered to the other party (the “Indemnifying Party”) and will afford the Indemnifying Party and its counsel who is reasonably determined to be qualified and approved by the Claiming Party, at the Indemnifying Party’s sole expense, the opportunity to defend or settle the claim (and, with respect to claims made by third parties, the Claiming Party will have the right to participate in the defense or settlement of such claim at its sole expense). Any notice of a claim will state, with reasonable specification, the alleged basis for the claim and the amount of liability asserted by or against the other party by reason of the claim. If such notice is not given, it will not release the Indemnifying Party, in whole or in part, from its obligations under this Section 8, except to the extent that the Indemnifying Party’s ability to defend against such claim is materially prejudiced thereby. The Indemnifying Party will not be liable for any costs incurred by or compromise or settlement reached by the Claiming Party without the Indemnifying Party’s prior written consent; provided however, if notice is given and the Indemnifying Party fails to assume the defense of the claim within fifteen (15) days thereof, the claim may be defended, compromised or settled by the Claiming Party without the consent of the Indemnifying Party and the Indemnifying Party will be liable for the costs of such defense and associated with any such compromise or settlement and shall remain liable under this Section 8. Notwithstanding anything to the contrary herein, Buyer may elect, in its sole discretion, to recover a portion or all of Buyer Aggregate Net Loss by reducing the amounts due under the Cash Holdback Portion under Section 1.2(c). Such reduction shall be deemed to be the payment of such payments. The Sellers agree and acknowledge that they shall not be entitled to be indemnified by, or receive contribution from, the Company with respect to any indemnification claims made against them hereunder.
23
8.7 Limitations
(a) For the sole purpose of determining Buyer Aggregate Net Loss (and not determining whether or not any breaches of representations and warranties have occurred), the representatives and warranties of the Sellers shall not be deemed qualified by any references to materiality, Material Adverse Effect or Material Adverse Change.
(b) Notwithstanding anything to the contrary contained in this Section 8.7, the Shareholder will have no liability under Section 8.1(a)(i) (other than the Fundamental Representations, for which the following limitations will not apply) until the total of Buyer’s Aggregate Net Loss exceeds the $25,000 (on a cumulative basis), after which the Shareholder shall be responsible for all Buyer’s Aggregate Net Loss up to the amount of the Purchase Price.
8.8 Right of Holdback and Setoff. Upon notice to the Shareholder specifying in reasonable detail the basis for any claim for which Buyer may be entitled to indemnity pursuant to Section 8, Buyer may hold back from the Cash Holdback Portion, its good faith reasonable estimation of Buyer’s Aggregate Net Loss for such claim until such time as the claim is resolved and the actual Indemnified Amount is finally determined (the “Resolved Claim Amount”), after which Buyer shall be entitled to set-off the Resolved Claim Amount against the Cash Holdback Portion. Upon 18 months from the Closing Date, Buyer shall promptly release to the Shareholder the applicable Cash Holdback Portion in excess of any Resolved Claim Amount less any estimates for Indemnified Amount for any unresolved claims hereunder (“Unresolved Claims”). Buyer shall release to the Shareholder any remaining funds of the Cash Holdback Portion within two (2) Business Days after the final resolution of the Unresolved Claims.
8.9 Tax Treatment of Indemnification Payments. Any Indemnified Amounts payable by the Shareholder to Buyer shall be treated as an adjustment to the Purchase Price for Tax purposes.
8.10 Mitigation of Loss. Each indemnified party shall be required to use reasonable commercial efforts to mitigate Indemnified Amounts.
24
8.11 Releases. In addition to the indemnification obligations of Buyer pursuant to this Section 8, Buyer shall use all commercially reasonable efforts to obtain the release of the Shareholder from any Company guarantees after the Closing.
8.12 Materiality. For purposes of determining whether there has been a breach and the amount of any losses that are the subject matter of a claim for indemnification hereunder, each representation, warranty and covenant in this Agreement and each certificate or document delivered pursuant hereto shall be read without regard to and without giving effect to the terms(s) “material”, “Material Adverse Effect” (which shall instead be read as adverse effect on, or change to), “material adverse change”, “immaterial” or similar qualifiers as if such words and surrounding related words (e.g., “reasonably be expected to,” “could have” and similar restrictions and qualifiers) were deleted from such representation, warranty or covenant.
9. | INTENTIONALLY OMITTED. |
10. | GENERAL PROVISIONS |
10.1 Confidentiality. Between the date of this Agreement and the Closing Date, Buyer and the Sellers agree to maintain in confidence, and will cause the directors, officers, employees, agents, and advisors of Buyer and the Sellers, respectively, to maintain in confidence, any written, oral, or other information obtained in confidence from another party in connection with this Agreement or the transactions contemplated hereby, unless (i) such information is already known to such party or to others not bound by a duty of confidentiality or such information becomes publicly available through no fault of such party, (ii) the use of such information is necessary or appropriate in making any filing or obtaining any consent or approval required for the consummation of the transactions contemplated hereby or otherwise is reasonably necessary to satisfy any of the conditions precedent specified in Sections 6 and 7, or (iii) the furnishing or use of such information is required by or necessary or appropriate in connection with legal proceedings. Notwithstanding the foregoing, Buyer may make announcements regarding this Agreement and the transactions contemplated hereby to comply with Canadian securities regulations, provided that the Company or its representative(s) shall have the opportunity to review and comment on any proposed announcement. If the Transaction is not consummated, each party will return or destroy all confidential information provided by the other party as the providing party may reasonably request.
10.2 Governing Law. This Agreement, including all exhibits and schedules and all documents or instruments delivered in connection herewith, and all disputes among the parties under this Agreement will be governed by, and construed and enforced in accordance with and decided pursuant to, the laws of the Commonwealth of Kentucky (and in accordance with federal law interpreting the Federal Arbitration Act where applicable), without regard to any jurisdiction’s conflicts or choice of law provisions.
10.3 Notices. All notices or other communications required or permitted hereunder will be in writing and will be deemed given or delivered when delivered personally, by registered or certified mail, by legible facsimile transmission or by overnight courier (fees prepaid) addressed as follows:
25
or to such address as such party may indicate by a notice delivered to the other parties. Notice will be deemed received the same day (when delivered personally), five (5) days after mailing (when sent by registered or certified mail) and the next business day (when delivered by overnight courier). Any party to this Agreement may change its address to which all communications and notices may be sent by addressing notices of such change in the manner provided.
10.4 Assignment. This Agreement may not be assigned by any party without the prior written consent of all of the other parties hereto.
10.5 Entire Agreement; Amendments. This Agreement along with the Confidentiality Agreement, Schedules and Exhibits attached hereto and the Related Documents is an integrated document, contains the entire agreement between the parties, wholly cancels, terminates and supersedes any and all previous and/or contemporaneous oral agreements, negotiations, commitments and writings of the parties with respect to such subject matter. No change, modification, extension, termination, notice of termination, discharge, abandonment or waiver of this Agreement, or any schedule or exhibit hereto, or any document or instrument delivered in connection herewith, or any of its provisions, nor any representation, promise or condition relating hereto or thereto, will be binding upon any party unless made in writing and signed by all of the parties hereto.
26
10.6 Expenses. Except as otherwise expressly provided in this Agreement, each party to this Agreement will bear his or its respective expenses incurred in connection with the preparation, execution, and performance of this Agreement and the transactions contemplated hereby, including all fees and expenses of agents, representatives, counsel, and accountants. The Sellers’ Transaction fees shall be paid in connection with the Closing as Company Other Indebtedness pursuant to Section 1.2(b) or paid out of the Shareholder Debt as provided in Section 1.4. The party retaining any broker, finder or investment banker in connection with this Agreement will pay all amounts payable to such broker, finder or investment banker.
10.7 Partial Invalidity. Wherever possible, each provision will be interpreted in such manner as to be effective and valid under applicable law, but in case any one or more of these provisions will, for any reason, be held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability will not affect any other provisions of this Agreement, and this Agreement will be construed as if such invalid, illegal or unenforceable provision or provisions had never been contained herein, unless the deletion of such provision or provisions would result in such a material change as to cause the completion of these transactions to be unreasonable.
10.8 Tax Matters; Further Assurances.
(a) The Parties will execute such additional documents and instruments, take such other actions, complete such other formalities, and extend such other cooperation as may be reasonably requested or required to consummate the transactions contemplated by this Agreement. From time to time following the Closing Date and without further consideration: (a) the Shareholder will immediately deliver to Buyer any cash or other property that the Shareholder receives in respect of receivables relating to the Assets and operations of the Business (whether attributable to periods before or after the Closing Date), and (b) each Party will, at the request of the other Party, execute and deliver to the other party such other instruments of conveyance and transfer as a Party may reasonably request or as may be otherwise necessary to effect the Transaction or to more effectively convey and transfer to, and vest in, and put in possession of, in the case of Buyer, any part of the Company Shares or the Assets, and, in the case of the Sellers, the Purchase Price.
(b) The Parties shall cooperate fully, as and to the extent reasonably requested by another Party, in connection with the filing of any tax returns pursuant to this Section 10.8 and any audit, litigation or other proceeding with respect to Taxes. The Shareholder shall, at his expense, prepare all federal, state and local income tax returns for the period ending on the Effective Date and shall submit such returns to Buyer for approval prior to filing. Buyer shall have thirty (30) days to review and dispute such tax returns. If not disputed, the Shareholder shall file them as required. The Company shall retain all tax returns, reports and work papers, and financial records of the Company for ten years after the Closing Date. Upon the request of a Party in connection with any such audit, litigation or other proceeding, the other Parties shall provide such records and information which are reasonably relevant and shall make employees available on a mutually convenience basis to provide additional information and explanation of any material provided hereunder. The Parties further agree, upon request, to provide the other Parties with information about the transactions contemplated by this Agreement that the requesting Party may be required to report pursuant to the United States Internal Revenue Code (hereinafter referred to as the “Code”) and all Treasury Department Regulations promulgated thereunder.
27
(c) Each of the Sellers and Buyer shall cooperate in the preparation of all Tax Returns for any Tax periods for which the other party could reasonably require their respective assistance in obtaining any necessary information. As additional consideration for the Transaction, effective on the Closing Date, the Shareholder hereby releases any and all claims, rights, obligations, debts and causes of action, whether matured or unmatured, known or unknown, that the Shareholder, in his capacity as a shareholder, member, director, officer, employee or otherwise, may have against the Company or Buyer, or its Affiliates, other than claims under this Agreement, the Related Documents and any Company employee benefit plan (as required by law).
10.9 Counterparts. This Agreement may be executed in one or more counterparts, each of which will be considered an original instrument and all of which together will be considered one and the same agreement, and will become effective when counterparts, which together contain the signatures of each party, will have been delivered to Buyer and the Sellers. Delivery of executed signature pages by facsimile transmission, “pdf” or other electronic transmission will constitute effective and binding execution and delivery of this Agreement.
10.10 Interpretation. Article titles and headings to Sections are inserted for convenience of reference only and are not intended to be a part of or to affect the meaning or interpretation of any of the provisions of this Agreement. All references to Sections and subsections contained in this Agreement refer to the Sections and subsections of this Agreement. All references to Schedules or Exhibits contained in this Agreement are references to the Schedules or Exhibits described on the list immediately following the signature page hereto. All references to the words “include” or “including” shall mean “including without limitation.” Any and all Schedules, Exhibits, statements, reports, certificates or other documents or instruments referred to in or attached to this Agreement, including the “Background” portion of this Agreement, are incorporated by reference as though fully set forth at the point referred to in this Agreement. There will be no presumption against any party on the ground that such party was responsible for preparing this Agreement or any part of it. All pronouns and any variations thereof will be deemed to refer to the masculine, feminine, neuter, singular or plural as the context may require.
10.11 Disputes.
(a) All disputes which in any manner arise out of or relate to this Agreement or the subject matter thereof (but not including disputes under the Non-Competition Agreement or Employment Agreement, which shall be governed by the provisions of such agreements) shall be resolved exclusively by arbitration in accordance with the provisions of this Section. A party may commence arbitration by sending a written demand for arbitration to the other parties. However, such demand shall not be effective unless it sets forth in detail the nature of the controversy, the dollar amount involved, if any, the remedies sought, and attached to such demand is a copy of this subsection.
(b) There shall be one arbitrator. If the parties shall fail to select a mutually acceptable arbitrator within ten (10) days after the demand for arbitration is mailed, then the parties stipulate to arbitration before a single arbitrator sitting on the panel of the American Arbitration Association (“AAA”), and selected in the sole discretion of the AAA administrator. The arbitrator will have background and qualifications to consider disputes involving mergers and acquisitions law, corporate law and health care regulatory law.
28
(c) The parties shall share all costs of arbitration, except that the prevailing party shall be entitled to reimbursement by the other party of such party’s attorneys’ fees and costs and any arbitration fees and expenses incurred in connection with the arbitration hereunder.
(d) The substantive law of the Commonwealth of Kentucky shall be applied by the arbitrator.
(e) Arbitration shall take place in Louisville, Kentucky unless the parties otherwise agree. As soon as reasonably practicable, a hearing with respect to the dispute or matter to be resolved shall be conducted by the arbitrator. As soon as reasonably practicable thereafter, the arbitrator shall arrive at a final decision, which shall be reduced to writing, signed by the arbitrator and mailed to each of the parties and their legal counsel.
(f) All decisions of the arbitrator shall be final, binding and conclusive on the parties and shall constitute the only method of resolving disputes or matters subject to arbitration pursuant to this Agreement. The arbitrator or a court of appropriate jurisdiction may issue a writ of execution to enforce the arbitrator’s judgment.
(g) Notwithstanding the foregoing, because time is of the essence of this Agreement, the parties specifically reserve the right to seek a judicial temporary restraining order, preliminary injunction, or other similar short term equitable relief, and grant the arbitrator the right to make a final determination of the parties’ rights, including whether to make permanent or dissolve such court order. The arbitrator shall have the power to grant all legal and equitable remedies provided by Kentucky or federal law; provided however, said arbitrator shall not have the power to award punitive or exemplary damages. The decision of the arbitrator may be entered in any court having jurisdiction thereof and the award may be judicially enforced.
10.12 Third-Party Beneficiaries. This Agreement will not confer any rights or remedies upon any Person (including any Affiliates) other than the parties to this Agreement and their respective successors and permitted assigns.
10.13 Definitions. In addition to words and terms defined elsewhere in this Agreement, the following words and terms shall have the following respective meanings:
“Accounts Payable” shall have the same meaning and import as provided by the definition of Accounts Payable under Generally Accepted Accounting Principles.
“Accrued Liabilities” shall have the same meaning and import as provided by the definition of Accrued Liabilities under Generally Accepted Accounting Principles.
“Agreement” shall mean this Agreement, including the exhibits and schedules attached hereto, as the same may be amended, supplemented or modified in accordance with the terms hereof.
“Affiliate” means, with respect to any Person, any of (a) a manager, member, director, officer or shareholder of such Person and (b) any other Person that, directly or indirectly through one or more intermediaries, controls, or is controlled by, or is under common control with, another Person. The term “control” includes the possession, directly or indirectly, of the power to direct the management and policies of a Person, whether through the ownership of voting securities, by contract or otherwise.
29
“Business Day” shall mean any day other than a Saturday, Sunday or day on which national banks located in the United States or Canada are authorized or obligated to close.
“Business Documents” means all of the Company’s rights in, to and under all supplier agreements and any other agreements with the vendor or manufacturer of any equipment or goods used by the Company in the Business, equipment service agreements, leases of equipment that are related to and used by the Company in the Business and all agreements, business licenses (including any licenses held personally) and permits that are related to the Company’s conduct of the Business.
“Company Bank and Lease Indebtedness” means the sum of the following outstanding obligations and liabilities of the Company as of the Effective Date: (i) all bank related financing obligations, (ii) all Equipment Indebtedness, (iii) all Vehicle Lease Obligations, and (iv) any and all other bank and credit obligations and related party loan payables, including the Shareholder Debt.
“Company Other Indebtedness” shall mean (i) deferred employee compensation liabilities, including accrued payroll and payroll taxes and bonus liabilities, but including only one half of the normal and customary accrued vacation and PTO accruals, (ii) all non-trade payables, (iii) all trade payables in excess of $750,000, (iv) all accrued and unpaid prepaid sales and other tax liabilities, (v) all Transaction expenses of Sellers, and (vi) and all Apportionments.
“Customer Contracts” means all of the Company’s rights in, to and under all agreements with the Company’s customers.
“Equipment Indebtedness” means Indebtedness incurred with a specialized leasing company, lender and/or supplier, to finance the acquisition cost of supplies, equipment and other consumables used in the Business, including without limitation, capitalized lease obligations and purchase money security financing, as identified in Schedule 3.8(b).
“Federal Arbitration Act” shall mean the United States Arbitration Act (Pub.L. 68–401, 43 Stat. 883, enacted February 12, 1925, codified at 9 U.S.C. ch. 1).
“Hazardous Materials” includes hazardous waste, hazardous substances, toxic substances and related materials, including all materials and substances regulated by the Comprehensive Environmental Response, Compensation and Liability Act, the Resource Conservation and Recovery Act, the Hazardous Materials Transportation Act, the Toxic Substances Control Act, the Federal Water Pollution Control Act, the Federal Safe Drinking Water Act, the Federal Air Pollution Control Act, the Oil Pollution Act, the Federal Insecticide, Fungicide and Rodenticide Act, the Atomic Energy Act, Occupational Safety and Health Act, each as amended, and any regulations promulgated thereunder or any other applicable federal, state or local environmental law, statute, rule, regulation or ordinance.
“Indemnified Amount” shall mean the Buyer’s Aggregate Net Loss or the Shareholder’s Aggregate Net Loss, as applicable, as determined to be indemnifiable under this Agreement.
30
“Material Adverse Effect” or “Material Adverse Change” means any effect, event, development, circumstance or change that has been, or would reasonably be expected to be, individually or in the aggregate, materially adverse to the business, assets, financial condition, operations, operating results or any other condition of the Company other than any effect or change to the extent resulting from or relating to: (a) general business or economic conditions (to the extent such effect, event, development, circumstance or change does not affect the Company in a disproportionate manner relative to other participants in the industry in which it operates), (b) national or international political or social conditions, including the engagement by the United States in hostilities, whether or not pursuant to the declaration of a national emergency or war, or the occurrence of any military or terrorist attack upon the United States, or any of its territories, possessions, or diplomatic or consular offices or upon any military installation, equipment or personnel of the United States, (c) financial, banking or securities markets (including any disruption thereof and any decline in the price of any security or any market index) (to the extent such effect, event, development, circumstance or change does not affect the Company in a disproportionate manner relative to other participants in the industry in which it operates), (d) changes in Laws, and (e) the announcement or pendency of the Transaction or the identity of Buyer , including any impact thereof on relationships, contractual or otherwise, with any customers, suppliers or employees of the Company.
“Net Non-Cash Working Capital” means the sum of the Company’s accounts receivables and inventory less the sum of the Company’s trade payables (not to exceed $750,000).
“Net Working Capital Adjustment Amount” means the amount, if any, by which the actual Net Working Capital at Closing differs from the Target New Working Capital , which may be a positive or negative number. In the event that the Net Working Capital Adjustment Amount is negative, it shall reduce and satisfy, on the dollar for dollar basis, the Cash Holdback Portion.
“Ordinary Course of Business” means, in respect of any Person, the ordinary course of such Person’s business, as conducted by any such Person in accordance with past practice and in good faith.
“Organizational Documents” shall mean, for any entity, its constituent or organizational documents, including: (a) in the case of any partnership, trust or other form of business entity, the partnership, or other applicable agreement of formation and any agreement, instrument, filing or notice with respect thereto filed in connection with its formation with the secretary of state or other department in the state of its formation, in each case as amended from time to time; (b) in the case of any limited liability company, the articles or certificate of formation and its operating agreement or limited liability company agreement; and (c) in the case of a corporation, the certificate or articles of incorporation and its bylaws or regulations.
“Permitted Liens” means (i) liens for Taxes not yet due and payable or being contested in good faith by appropriate proceedings and for which there are adequate reserves on the books, (ii) workers or unemployment compensation liens arising in the Ordinary Course of Business not exceeding an amount of $1,000, in the aggregate; (iii) mechanic’s, materialman’s, supplier’s, vendor’s or similar liens arising in the Ordinary Course of Business securing amounts that are not delinquent, not exceeding an amount of $1,000, in the aggregate and (iv) zoning ordinances, recorded easements and other restrictions of legal record affecting any leased property or matters which would be revealed by a survey, and that in either case do not, individually or in the aggregate, impair the current use or occupancy of any leased real property or have a Material Adverse Effect on the Company or the Business.
31
“Person” shall be construed broadly and shall include an individual, a partnership, a corporation, a limited liability company, an association, a joint stock company, a trust, a joint venture, an unincorporated organization, or a Governmental Authority (or any department, agency, or political subdivision thereof).
“Related Documents” means the Non-Competition Agreement, the Employment Agreement, all other written agreements, documents and certificates expressly required by this Agreement to be delivered to another Party on the date hereof.
“Sellers’ Knowledge” means and includes the actual knowledge and constructive knowledge of the Shareholder and Ashley G. Bailey, which means knowledge that an ordinary person would have exercising prudence of a reasonable manner without additional due diligence or investigation.
“Settlement Agreement” shall mean that certain Settlement Agreement, dated October 16, 2018, by and among the (i) United States of America, acting through the United states Department of Justice and on behalf of the Office of Inspector General of the Department of Health and Human Services, and the United States Department of Veterans Affairs, (ii) the Commonwealth of Kentucky, acting through its Office of Attorney General and on behalf of the Cabinet for Health and Family Services, Department of Medicaid Services, and (iii), the Company, (together with that certain Promissory Note made payable from the Company to the United States of America, dated October 16, 2018, and the related Guaranty Agreement, by and between Alec G. Bailey and the United States of America, dated October 16, 2018 (collectively, the “Original Settlement Agreement”)), as amended by that certain Addendum to Settlement Agreement, dated October __, 2019, by (i) United States of America, acting through the United states Department of Justice and on behalf of the Office of Inspector General of the Department of Health and Human Services, and the United States Department of Veterans Affairs, (ii) the Commonwealth of Kentucky, acting through its Office of Attorney General and on behalf of the Cabinet for Health and Family Services, Department of Medicaid Services, and (iii) the Company (together, with the Original Settlement Agreement, the “Settlement Agreement”).
“Settlement Payment” shall mean an amount equal to ninety-five percent (95.0%) of the Purchase Price determined as if calculated pursuant to Section 1.2(b) hereof without deduction for the Settlement Payment as set forth in clause (iv) of Section 1.2(b).
“Shareholder Debt” means the Company’s indebtedness to the Shareholder, approximately in the amount of $455,093.37.
“Target Net Working Capital” means $1,848,658.00.
“Vehicle Lease Obligations” means the vehicle lease agreements retained by the Company after the Closing.
32
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed on as of the date first written above.
Buyer: | PHM LOGISTICS CORPORATION | |
By: | ||
Name: | ||
Title: | ||
Company: | COOLEY MEDICAL EQUIPMENT, INC. | |
By: | ||
Name: | ||
Title: | ||
Shareholder: | ||
ALEC G. BAILEY |
[Signature Page – Purchase Agreement]
EXHIBIT A
NONCOMPETITION AGREEMENT
This Noncompetition Agreement (this “Agreement”) is entered into as of October 1, 2019 by and between PHM Logistics Corporation, a Delaware corporation (“Buyer”), Cooley Medical Equipment, Inc., a Kentucky corporation (“the Company”), and Alec G. Bailey, an individual residing in the Commonwealth of Kentucky (the “Restricted Party”).
Background
Pursuant to the terms and provisions of that certain Stock Purchase Agreement dated the date hereof (the “Purchase Agreement”) by and among Buyer, the Company and , , and the Restricted Party, Buyer has acquired from the Restricted Party all of the issued and outstanding capital stock of the Company. Capitalized terms that are used but not defined herein shall have the respective meanings accorded to such terms in the Purchase Agreement.
As a condition to the consummation of the transactions contemplated by the Purchase Agreement (the “Transaction”), Buyer, who will be the sole owner of the Company after the consummation of the Transactions is requiring that the Restricted Party enter into this Agreement.
Restricted Party, as the owner of all of the outstanding capital stock of the Company prior to the Transaction, represents and agrees that he will receive substantial benefits from the Transaction and the purchase of the Company Shares by Buyer. Buyer intends to operate the business of the Company after the Closing.
Agreement
NOW THEREFORE, for the consideration set forth herein, the receipt and sufficiency of which are acknowledged by the parties, and intending to be legally bound hereby, the Company and the Restricted Party agree as follows:
1. Definitions. As used herein:
(a) | “Confidential Information” shall include, but is not necessarily limited to, any information relating to the business or affairs of the Company and any its Affiliates, which may include, in whole or part, information concerning the accounts, sales, sales volume, sales methods, sales proposals, Customers (as defined below) or prospective Customers, prospect lists, manuals, formulae, products, processes, methods, financial information or data, business and financial strategies, methods or practices, physicians or other parties who refer patients to the Company or any of its Affiliates, physicians or other persons who provide diagnostic services to or on behalf of the Company or any of its Affiliates or the patients or Customers of the Company or any of its Affiliates, insurance companies, health care providers and such health care provider’s insurance companies, pricing data or lists, business plans, financial models, compositions, ideas, improvements, inventions, research, computer programs, computer related information or data, system documentation, software products, patented products, copyrighted information, know-how and operating methods and any other trade secret or proprietary information developed, owned, possessed or used by the Company or any of its Affiliates. “Confidential Information” shall not include information that: (i) is or becomes generally available to the public other than as a result of a disclosure of such information by the Restricted Party; or (ii) is or becomes available to the Restricted Party on a non-confidential basis from a source other than the Company, any of its Affiliates or their respective representatives and such source is not bound by a confidentiality agreement with, or other obligation of secrecy to, the Company or any of its Affiliates. Information constituting individually identifiable “protected health information” as such term is defined in the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”) of patients of the Company shall be subject to the use and disclosure in accordance with the provisions of HIPAA. |
(b) | “Customer(s)” shall mean any individual, corporation, limited liability company, partnership, business or other entity, whether for-profit or not-for-profit (i) whose existence and business is known to the Restricted Party as a result of the Restricted Party’s access to the Company’s or any of its Affiliates’ business information, Confidential Information, Customer lists or Customer account information; (ii) that is a business entity or individual with whom the Company or any of its Affiliates has contracted or negotiated during the term of this Agreement; (iii) physicians or other parties who refer patients to the Company or any of its Affiliates; (iv) physicians or other persons who provide diagnostic services to or on behalf of the Company or any of its Affiliates or patients or Customers; or (v) who is or becomes a prospective client, Customer, patient, supplier or acquisition candidate of the Company or any of its Affiliates during the term of this Agreement. |
(c) | “Competing Business” shall mean any individual, corporation, limited liability company, partnership, business or other entity which operates or attempts to operate a business which provides, designs, develops, markets, invests in, produces or sells any products, services, or businesses which are the same or similar to, or otherwise competes with, those produced, provided, marketed, invested in or sold by the Company or any of its Affiliates. |
(d) | “Restrictive Period” shall mean the period beginning on the Closing Date and ending on the fifth (5th) anniversary of the Closing Date. |
(e) | “Territory” shall mean the Commonwealth of Kentucky. |
2. | Agreement Not to Compete. In order to protect the business interest and good will of the Company and its Affiliates with respect to Customers and accounts, and to protect Confidential Information, the Restricted Party covenants and agrees that during the Restrictive Period, the Restricted Party shall not, directly or indirectly, within the Territory, and whether as an investor (excluding investments representing less than two percent (2.0%) of the common stock of a public company), lender, owner, stockholder, manager, member, officer, director, consultant, employee, agent, salesperson or in any other capacity, whether part-time or full-time: |
2
(a) | cause, induce, solicit or encourage any Customer of the Company or any of its Affiliates to purchase, lease, obtain, acquire or license a product or service that is the same as, similar to, or in competition with those products and/or services made, rendered, provided, marketed, offered or under development by the Company or any of its Affiliates or otherwise to terminate or adversely modify such Customer’s relationship with the Company or any of its Affiliates; |
(b) | cause, solicit, induce or encourage any employees, consultants or contractors (including physicians or other persons who provide diagnostic services to or on behalf of the Company and its Affiliates or patients or Customers) of the Company or any of its Affiliates to leave such employment or service, or hire, employ or otherwise engage any such individual, or otherwise adversely modify such individual’s employment or service relationship with the Company or any of its Affiliates; and |
(c) | Become associated with or in any manner connected to, render any services or aide to, or otherwise engage in any business that competes with the Business (as defined in the Purchase Agreement) in the Territory. The Restricted Party acknowledges and agrees that the geographic, length of term and types of activities restrictions (non-competition restrictions) contained in this Agreement are reasonable and necessary to protect the legitimate business interests of the Company and its Affiliates because of the scope of the Company’s Business and Buyer would not have consummated the Transaction unless the Restricted Party agreed to the restrictions contained herein. |
If the Restricted Party violates the provisions of this Section 2, the periods described herein shall be extended by that number of days which equals the aggregate of all days during which at any time any such violations occurred.
3. | Non-disparagement and Confidentiality. The Restricted Party will not, at any time during or after the Restrictive Period, disparage the Company or any of its Affiliates, the business conducted by the Company prior to or following the consummation of the Transaction, or any equity or debt owner, director, officer, employee or agent of the Company or any of its Affiliates. Restricted Party covenants and agrees not to communicate or divulge to any person, firm, corporation or business entity, either directly or indirectly, or to use for any purpose other than for the benefit of the Company, and to hold in strict confidence for the benefit of the Company, all Confidential Information. The Restricted Party will not use any Confidential Information for his own personal benefit. |
4. | Scope of Covenants. The Restricted Party acknowledges that the territorial, time, scope and activity limitations set forth in Section 2 and 3 hereof are reasonable and are properly required for the protection of the Company and its Affiliates. If any such territorial, time, scope and/or activity limitation is determined to be unreasonable by a court or other tribunal, the parties agree to the reduction of such territorial, time, scope and/or activity limitations (including the imposition of such a limitation if it is missing) to such an area, period or scope of activity as said court or tribunal shall deem reasonable under the circumstances. Also, if the Company seeks partial enforcement of Section 2 and 3 as to only a time and scope of activity which is reasonable, then the Company shall be entitled to such reasonable partial enforcement. If such reduction or (if the Company seeks partial enforcement) such partial enforcement is not possible, then the unenforceable provision or portion thereof shall be severed as provided in Section 6 hereof. |
3
5. | Severability. Subject to Section 4, if any provision of this Agreement or portion hereof is determined by a court or other tribunal to be wholly or partially unenforceable in any jurisdiction, then (for purposes of such jurisdiction) such provision or portion hereof shall be struck from the remainder of this Agreement, which shall remain in full force and effect. Without limitation of the foregoing: (1) any one or more of clauses of Section 2 hereof may be so severed from the remainder of this Agreement; and (2) the restricted period shall be construed as if each month therein were listed in a separate clause which may be so severed. |
6. | Equitable Relief; Fees and Expenses. The Restricted Party acknowledges and agrees that any breach of this Agreement by the Restricted Party will result in immediate and irreparable harm to the Company and its Affiliates, the amount of which will be extremely difficult to ascertain, and that the Company could not be reasonably or adequately compensated by damages in an action at law. For these reasons, the Company and any of its Affiliates shall have the right, without objection from the Restricted Party, to obtain such preliminary, temporary or permanent injunctions or restraining orders or decrees as may be necessary to protect the Company and its Affiliates against, or on account of, any breach by the Restricted Party of the provisions of this Agreement without the need to post bond. Such right to equitable relief is in addition to all other legal remedies the Company may have to protect its rights. IN ANY ACTION OR PROCEEDING BROUGHT BY A PARTY TO ENFORCE THIS AGREEMENT, THE PREVAILING PARTY SHALL BE ENTITLED TO RECOVER THE COSTS AND EXPENSES INCURRED (INCLUDING, BUT NOT LIMITED TO, LEGAL FEES AND EXPENSES INCURRED BY THE PREVAILING PARTY IN CONNECTION WITH ENFORCING THAT ACTION OR PROCEEDING). The Restricted Party further covenants and agrees that any order of court or judgment obtained by the Company which enforces the Company’s rights under this Agreement may be transferred, without objection or opposition by the Restricted Party, to any court of law or other appropriate law enforcement body located in any other state in the U.S.A. or any other country in the world where Company does business, and that said court or body shall give full force and effect to said order and or judgment. |
7. | Dispute Settlement Procedure. Any controversy or claim arising out of or relating to this Agreement, or the actual or alleged breach of it, or arising out of or relating to the rights or duties or obligations of the parties in any capacity respecting any matter that could be asserted in a dispute with respect to this Agreement by way of cross-complaint or counterclaim, shall be subject to binding arbitration under the provisions of this Section 7. Arbitration shall be conducted in Louisville, Kentucky, in accordance with, and by a neutral arbitrator appointed pursuant to the rules of the American Arbitration Association in effect at the time, and judgment upon the award rendered pursuant thereto may be entered in any court having jurisdiction thereof. Arbitration pursuant to this Agreement shall be a condition precedent to the bringing of any action, suit, or proceeding by any party subject to this Agreement, for any form of relief against a party subject to this Agreement arising out of its subject matter, or performance rendered or not rendered thereunder. The parties hereto hereby acknowledge and agree that the refusal or failure of any party to appear at, or participate in, any hearing or other portion of any arbitration proceeding, pursuant to this paragraph, shall not prevent any such hearing or proceeding from going forward, and the arbitrator is empowered to make a decision, or render an award, or both, ex parte, which shall be binding on such party as fully as though such party had fully participated in such hearing or proceeding. Unless otherwise determined by the arbitrator, each party shall share equally in the expenses and costs of the arbitrator. THE PARTIES UNDERSTAND THAT BY AGREEING TO THIS PARAGRAPH THEY ARE GIVING UP THEIR RIGHT TO RESOLVE DISPUTES ARISING UNDER THIS AGREEMENT BY ACTION IN A COURT OF LAW BEFORE A JUDGE OR JURY AND ARE INSTEAD AGREEING TO BINDING ARBITRATION AS THE SOLE AND EXCLUSIVE METHOD OF RESOLVING SUCH DISPUTES. Notwithstanding any of the foregoing set forth in this Section 8, claims for emergency or preliminary or permanent injunctive relief can be brought in, and decided by, a state or federal court located in Louisville, Kentucky. |
4
8. | Waivers. The failure in any one or more instances of a party to insist upon performance of any of the terms, covenants or conditions of this Agreement, to exercise any right or privilege in this Agreement conferred, or the waiver by said party of any breach of any of the terms, covenants or conditions of this Agreement, shall not be construed as a subsequent waiver of any such terms, covenants, conditions, rights or privileges, but the same shall continue and remain in full force and effect as if no such forbearance or waiver had occurred. No waiver shall be effective unless it is in writing and signed by an authorized representative of the waiving party. A breach of any covenant shall not be affected by the fact that a more general covenant was not also breached. |
9. | Acknowledgements. The Restricted Party hereby acknowledges and agrees that: (a) this Agreement is necessary for the protection of the legitimate business interests of the Company and its Affiliates; (b) the Restricted Party has no intention of competing with the Company or any of its Affiliates within the limitations set forth above; (c) the Restricted Party has received adequate and valuable consideration for entering into this Agreement; (d) the Restricted Party’s covenants shall be construed as independent of any other provision in this Agreement and the existence of any claim or cause of action the Restricted Party may have against the Company, whether predicated on this Agreement or not, shall not constitute a defense to the enforcement by Company of these covenants; and (e) the execution and delivery of this Agreement is a mandatory condition precedent to Buyer’s obligations under the Purchase Agreement. |
10. | Full Understanding. The Restricted Party acknowledges that before entering into this Agreement, the Restricted Party has had the opportunity to consult with any attorney or other advisor of his or her choice, and that this provision constitutes advice from the Company to do so if the Restricted Party chooses. The Restricted Party further acknowledges that he has entered into this Agreement of the Restricted Party’s own free will, and that no promises or representations have been made to the Restricted Party by any person to induce the Restricted Party to enter into this Agreement other than the express terms set forth herein. The Restricted Party further acknowledges that he has read this Agreement and understands all of its terms. |
5
11. | Entire Agreement. This Agreement together with the Purchase Agreement constitutes the entire agreement between the parties with respect to the subject matter contained herein. Any amendments, or alternative or supplementary provisions to this Agreement, must be made in writing and duly executed by an authorized representative or agent of each of the parties hereto, provided that no employee of the Company shall have the authority to alter, orally or in writing, the terms of this Agreement, unless he/she has the prior written consent of the Board of Directors of Buyer. |
12. | Other Agreements. The Restricted Party represents and warrants that he is not a party to or otherwise subject to or bound by the terms of any contract, agreements or understandings that would affect his right or abilities to perform under this Agreement. The Restricted Party specifically represents that he is not subject to any other restrictive covenants or non-competition agreements. |
13. | Choice of Law; Venue. This Agreement shall be governed by and construed under the laws of the Commonwealth of Kentucky as applied to agreements entered into and to be performed entirely within the Commonwealth of Kentucky, notwithstanding any provisions relating to conflict of laws. The parties hereby submit to the jurisdiction of, and waive any venue objections against, the federal and state courts located in Louisville, Kentucky, in any action or proceeding to obtain emergency or preliminary or permanent injunctive relief. The parties agree that they shall not assert any claim that (i) they are not subject to the jurisdiction of such courts, (ii) the venue is improper, (iii) the forum is inconvenient, or (iv) any similar objection, claim or argument. |
14. | Successor In Interest; Beneficiaries. This Agreement shall be binding upon and shall inure to the benefit of the permitted successors, assigns, heirs and legal representatives of the parties hereto. The Company shall have the right to assign this Agreement in connection with a merger, consolidation or restructuring involving the Company or any of its Affiliates, or a sale or transfer of the business and/or any assets of the Company or any of its Affiliates, and the Restricted Party agrees to be obligated by this Agreement to any successor, assign or surviving entity. Any successor to the Company or any affiliate of the Company (including, but not limited to, the Company and Buyer) is an intended third-party beneficiary of this Agreement. The Restricted Party may not assign this Agreement. |
15. | Notices. Any notice required, permitted, or desired to be given pursuant to any of the provisions of this Agreement shall be deemed to have been sufficiently given or served for all purposes when tele-copied, when delivered by hand or received by registered or certified mail, postage prepaid, or by nationally reorganized overnight courier service addressed to the party to receive such notice at the following address or any other address substituted therefor by notice pursuant to these provisions: |
6
To the Company at: |
ProTech Home Medical Corp.
1019 Town Drive Wilder, Kentucky 41076 Attn: Hardik Mehta |
|
With a copy by email to: | hmehta@myphm.com | |
With a copy to: |
Katz Teller Brant & Hild
255 E. Fifth Street, Suite 2400 Cincinnati, Ohio 45202 Attn: John R. Gierl, Esq. |
|
With a copy by email to: | jgierl@katzteller.com |
If to the Restricted party, to: |
Alec Bailey
[REDACTED: PERSONAL CONTACT INFORMATION] |
|
With a copy to: |
McBrayer PLLC
Attn: Luke Morgan, Esq. 201 East Main Street, Suite 900 Lexington, Kentucky 40507 |
|
With a copy by email to: | www.mcbrayerfirm.com |
or at such other address as may be given by either of them to the other in writing from time to time.
16 | Counterparts; Telecopy. This Agreement may be executed in counterparts, each of which will be deemed an original, but all of which together will constitute one and the same instrument. Delivery of executed signature pages by facsimile transmission, “pdf” or other electronic means will constitute effective and binding execution and delivery of this Agreement. |
17. | Headings. The headings used in this Agreement are for convenience only and are not to be considered in construing or interpreting this Agreement. |
18. | Construction. The parties have jointly participated in the negotiation and drafting of this Agreement. In the event of an ambiguity or if a question of intent or interpretation arises, this Agreement shall be construed as if drafted jointly by the parties and no presumptions or burdens of proof shall arise favoring any party by virtue of the authorship of any of the provisions of this Agreement. For the purposes of this Agreement, “affiliate” shall mean (A) in the case of an individual, (i) the individual’s spouse or descendent (by blood or adoption) of such individual, (ii) the parents and siblings of the individual, (iii) any trust or family partnership whose beneficiaries shall be such individual and/or such individual’s spouse and/or any person related by blood or adoption to such individual or such individual’s spouse and (iv) the estate of such individual, or (B) in the case of an entity, a director or officer of such entity or another entity or a person that directly or indirectly, through one or more intermediaries, controls, or is controlled by, or is under common control with the entity, through the possession, directly or indirectly, of the power to direct the management and policies whether through ownership of voting securities, by contract or otherwise or, directly or indirectly owns ten percent (10%) or more of any class of the stock, membership interests or other ownership interests of such entity. For purposes of this Agreement, Buyer and its Affiliates shall be deemed to be Affiliates of the Company |
[Signature Page Follows]
7
IN WITNESS WHEREOF, the parties hereto have executed this Noncompetition Agreement on the date first written above.
Company: | ||
PHM LOGISTICS CORPORATION | ||
By: | ||
Name: | ||
Title: | ||
Restricted Party: | ||
ALEC G. BAILEY |
[Signature Page – Noncompetition Agreement]
8
EXHIBIT B
EMPLOYMENT AGREEMENT
[TO BE ATTACHED]
October 1, 2019
Ashley Bailey
Via email:
Dear Ashley:
We are pleased to confirm our offer to you for the position of Business Unit Leader of Cooley Medical Inc. (CMI), a Protech Home Medical (“PHM”) company. You will be reporting to the Vice President of Operations, Jerry Kirn.
As a Business Unit Leader, your compensation and benefit package is outlined on Exhibit 2. In addition, your job description is outlined in Appendix A.
This offer is contingent upon certain terms described in the enclosed “ACKNOWLEDGMENT – TERMS OF EMPLOYMENT,” which you need to sign and return to me, as well as on the successful completion of a background screening.
We are looking forward to you joining our organization. Sincerely,
Kimberly Childers
HR Manager
Please signify your acceptance of this offer letter:
Signature | Date |
ACKNOWLEDGM ENT
TERM S OF EM PLOYMENT
Instructions: please read the contents of this ACKNOWLEDGM ENT carefully. Your offer of employment is contingent upon your acceptance of the terms of employment described below. If you accept these terms, please sign in the space provided at the bottom of this form, and return with your offer letter.
1. | I acknowledge that the statement of an annual salary in the offer letter is for convenience of computation only and does not imply a guarantee of employment for any specific period, and that all employment with PHM is at will. |
2. | I agree that m y employment with PHM is conditioned upon m y agreement to be bound by the terms and conditions relating to non-competition and non-solicitation activities as set forth on Exhibit 3, which is attached hereto. |
3. | This employment is subject to a probationary period of 90 days. By expiry of that period decision will be made regarding further employment. This decision could be: |
I. That further at-will employment is confirmed.
II. That a further period of probation is required.
III. That the employment relationship is terminated.
Further, the probationary period of 90 days is not a minimum employment period, and employment is at all times at-will and subject to termination before or after the probationary period. |
I accept the terms of employment described above:
Signature | Date |
Exhibit 2
BUSINESS UNIT LEADER COMPENS ATION P ACK AGE
Annual Salary:
You will have an annual salary of $85,000.00 paid in biweekly installments.
You will receive a $400.00 monthly auto allowance.
Bonus Structure: Up to 30% of the base Annual Salary. Specific are Currently being developed.
Benefits:
On the first of the month following 30 days employed with PHM, you will be eligible to enroll in standard company benefits including:
- Health Insurance (PHM pays for the first $250 of your policy)
- Dental/Vision Insurance (employee is responsible for 100% of the cost)
You will be eligible to enroll in the PHM 401K plan after 1 year of employment. Enrollment will be during the next available open enrollment after you complete 1 year of employment.
PTO will be accrued as follows:
Employee accrues 2.31 hours per week totaling 120 hours over 52 weeks.
In addition, you will receive 4 sick days during calendar year.
Exhibit 3
NON-COMPETITION
You acknowledge that PHM has invested substantial money and resources in establishing relationships with its Clients (as defined below). You further acknowledge that the restrictions contained in this Exhibit 3 regarding the non-solicitation of employees and Clients are reasonable and necessary to protect PHM from unfair competition that PHM has a protectable property interest in its Clients and that such restrictions will not deprive you of the ability to earn a living. Accordingly, during the Restricted Period (as defined below), you shall not as an individual, owner, proprietor, partner, joint venture, shareholder, independent contractor, consultant, agent, director, officer, employee, beneficiary or in any other capacity whatsoever, either directly or indirectly: (i) engage in any commercial activity that competes with the Covered Services (as defined below) of PHM, as defined below; (ii) enter the employ of, or render any other services to, any person whose business is in direct competition with PHM, or which involves working for a division within a larger company, which division is a direct competitor of PHM; or (iii) become interested in any person referred to in the foregoing clauses (i) and (ii) in any capacity (other than as a passive equity owner not to exceed 1%).
The following terms as used in this Exhibit shall have the meanings described below:
"Restricted Period" means the term of your employment with PHM and a period of one (1) year following termination of your employment with PHM for any reason whatsoever.
"Covered Services" means any services of whatever kind or character offered or provided by PHM
to Clients during the term of your employment.
"Client" means any physician, physician practice and/or coagulation clinic: (A) for which PHM performed any Covered Services during one (1) year preceding the termination of your employment or with whom either you or any other person under your supervision or working in coordination with you has contact for the purpose of proposing or providing Covered Services, or (B) for whom either you or any other person under your supervision or working in coordination with you made a new business contact, presentation or proposal during the twelve (12) months preceding the termination of your employment.
NON-SOLICIT ATION
You agree that during your employment and for a period of one year after the date of termination of your employment for any reason, you shall not, either directly or indirectly, (i) solicit the services, or attempt to solicit the services, of any employee of PHM to be employed by or to perform services on behalf of any other person or entity or (ii) solicit or attempt to solicit any Client in order to provide any Covered Services to such Client.
Signature: | Date: |
Appendix A
The Business Unit Leader is responsible for the planning, organizing, directing and controlling the day-to-day operations. The BUL is expected to collaborate and develop the long-term growth strategy for the business unit and the business team. The BUL works under the directive of the VP of Operations.
ESSENTIAL DUTIES AND RESPONSIBILITIES
· | Evaluate and manage operations with a focus on implementing process changes to maximize patient care, referral satisfaction and cash generation. |
· | Conduct routine staff meetings to review performance, monitor and improve corporation initiatives. |
· | Manages all department supervisors and managers for CMI locations. |
· | Stay current on insurance requirements, reimbursement and legislative issues that may affect the performance of the business unit. |
· | Manage order intake process and staff in order to minimize paperwork, order processing time, authorization signatures, and other necessary documentation, such that the process is highly efficient, patients are well served and billing is successfully completed. |
· | Actively participate in the growth strategy of the business. |
· | Utilize referral as well as community interaction experience and data to assist with long-term strategic planning for growth and development needed for long-term business success. |
· | Establish and improve processes to make customer satisfaction a top priority of the Business Unit. |
· | Effectively direct and implements priorities to achieve sales and service goals. |
· | Advise leadership on financial obligations, potential risk and opportunity. To lead formulation, negotiation and execution of all contracts and vendor agreements. |
· | Track budget and expenditures to include financial oversight of the business unit. |
· | Assist in the integration of product into the total patient experience. |
· | Responsible and accountable for compliance with Joint Commission standards and requirements. |
· | Travel: BUL will travel to each physical location within the CMI territory a minimum of every 90 calendar days. Routine conference calls are expected to maintain communication with branch managers and provide operational support. |
· | BUL is responsible for providing formal and consistent feedback both written and verbal communication to the VP of Operations and CEO on the state of each CMI locations. |
Other Duties
Please note this job description is not designed to cover or contain a comprehensive listing of activities, duties or responsibilities that are required of the employee for this job. Duties, responsibilities and activities may change at any time with or without notice.
Signature: | Date: |
Exhibit 99.5
PURCHASE AGREEMENT
THIS PURCHASE AGREEMENT (this “Agreement”) is made as of December 1, 2019 (“Effective Date”) by and among PHM Logistics Corporation, a corporation incorporated under the laws of Delaware (“Buyer”), Acadia Medical Supply, Inc., a corporation incorporated under the laws of Maine (“Company”), and Scott A. Clark and Stephen L. Clark, individuals (the “Shareholders” and, together with the Company, the “Sellers” or “Seller Parties”).
Background
The Company is a corporation organized under the laws of the State of Maine and participating Medicare provider that provides (i) power mobility equipment, vehicle lifts, nebulizers, oxygen concentrators, and CPAP and BiPAP units; (ii) traditional and non-traditional durable medical equipment respiratory and durable medical equipment and services; and (iii) non-invasive ventilation equipment, supplies and services (collectively, the “Business”). The parties acknowledge and agree that the Business does not and is not intended or contemplated to include the provision of professional medical services requiring licensure as a physician. The Shareholders owns beneficially and of record 100% of the issued and outstanding equity securities of the Company (collectively, the “Company Shares”).
Agreement
NOW, THEREFORE, in consideration of the mutual representations, warranties, covenants and agreements set forth in this Agreement, and intending to be legally bound, the parties agree as follows:
1. | PURCHASE AND SALE OF COMPANY SHARES; PURCHASE PRICE |
1.1 Purchase of the Company Shares. Subject to the terms and upon the conditions set forth in this Agreement, the Buyer agrees to purchase from the Shareholders, and the Shareholders agree to sell to the Buyer, all of the Company Shares, for the Purchase Price set forth in Section 1.2 hereto (the “Transaction”).
1.2 Purchase Price.
(a) General. In consideration for the sale of the Company Shares, Buyer shall make payments to the Shareholders of cash in accordance with this Section 1.2. Such payments shall be referred to, in the aggregate, as the “Purchase Price.” All cash payments made under this Agreement shall be made in and all references to “$” shall refer to United States Dollars (“USD”).
(b) Total Purchase Price. The total Purchase Price paid by Buyer for the Company Shares shall be an amount of $1,750,000, less the adjustments set forth in Section 6.5 and plus any cash on hand, to be paid in accordance with Sections 1.2(c) and (d) below. The Purchase Price shall be paid to the Shareholders pro rata based upon the respective percentage of Company Shares owned by each Shareholder.
(c) Payment of Purchase Price. The Purchase Price for the Company Shares shall be payable in cash payable as follows: (i) $600,000 payable in three installments as follows: (A) $100,000 on the ninety (90) day anniversary of the Closing Date (the “True-Up Holdback Payment”) and (B) $250,000 on each of the one year anniversary of the Closing Date and the two year anniversary of the Closing Date (collectively, with the True-Up Holdback Payment, the “Cash Holdback Payments”) and (ii) the balance, on December 2, 2019 by wire transfer in immediately available funds (the “Closing Cash Payment”) and.
(d) Pro Rata. The Purchase Price (including the Closing Cash Payment and each Cash Holdback Payment) shall be payable to the Shareholders in accordance with the following percentage allocations (each, “Pro Rata Share”): Scott A. Clark – 50.0% and Stephen L. Clark – 50.0%.
1.3 Apportionments. At the Closing, the following items shall be apportioned as of 11:59 p.m. on the Closing Date: property taxes, rents, utilities, prepayments to suppliers and other prepayments, expenses, liabilities, payroll, accrued vacation and other liabilities to employees, suppliers and customers which have been accrued or should have been accrued as of 11:59 PM on the Closing Date (excluding however, the Equipment Leases and vehicle loans); all such items prior to such time being for the account of the Shareholders and all such items after such time being for the account of the Buyer. At the Closing, the Shareholder or the Buyer, as the case may be, shall deliver to the other a check or wire transfer for the net amount owing under this Section 1.4. If any such items cannot accurately be apportioned at the Closing or prior thereto, or if it is later determined that such apportionment at the Closing was not accurate, such items shall be apportioned or reapportioned, as the case may be, as soon as practicable after the Closing Date or the date on which the apportionment error is discovered, as applicable, but in no event more than sixty (60) days after the Closing Date.
1.4 Cash. The Buyer and Sellers acknowledge and agree that it is intended that the Purchase Price is to be calculated on a cash free basis and, therefore, the Purchase Price will be increased by the amount of any cash on hand.
1.5 Section 338 Election. Buyer has the right, in its sole discretion, to make an election under Section 338(h)(10) of the Code with respect to the purchase of the Shares (a “Section 338 Election”). If Buyer desires to make a Section 338 Election, the Shareholders will cooperate with Buyer and make any filings and execute any documents, agreements, instruments and/or certificates necessary to make such election. Buyer agrees to pay any increase in taxes owed by the Shareholders as a result of making a Section 338 Election over the amount of taxes that the Shareholders would have owed if no such election had been made.
2. | CLOSING |
2.1 Closing Date. Subject to the terms and conditions of this Agreement, the closing of the Transaction contemplated hereby (the “Closing”) shall take place effective as of 12:01 am on December 1, 2019 (the “Closing Date”).
2
3. | REPRESENTATIONS, WARRANTIES AND COVENANTS OF SELLERS |
As an inducement to Buyer to enter into this Agreement and to consummate the transactions contemplated by this Agreement, Shareholders, jointly and severally, represent, warrant and covenant to the Buyer as hereafter set forth in this Section 3, and acknowledge that the Buyer are relying upon such representations, warranties and covenants contained in this Section 3 as being true and correct, provided, that any qualifications and exceptions to such representations, warranties or covenants shall be set forth on a corresponding disclosure schedule attached hereto (each, a “Disclosure Schedule”). The Disclosure Schedules shall be numbered to correspond to the various Sections of this Agreement.
3.1 Organization and Organization Documents.
(a) The Company is a corporation duly organized, validly existing and in good standing under the laws of the State of Maine, and has the requisite power and authority to own or lease all of its assets, to own and operate the Business, and to carry on its business as now conducted or proposed to be conducted. The Company is qualified or licensed to do business in the State of Maine and such other places where Business is currently conducted. The Company has no subsidiaries.
(b) Except as set forth on Schedule 3.1(b), the Company has not changed its name, been the surviving entity of a merger or consolidation, or acquired all or substantially all of the assets of any Person or entity.
(c) The Company has made available to Buyer and its counsel the charter or other organizational documents of the Company, the current Bylaws or Operating Agreement of the Company and all amendments thereto to date, and copies of any actions taken at any meetings of its shareholders or members and board of directors or managers or by the written consent of the shareholders of members or board of directors of the Company.
(d) The Company’s directors or managers and the Shareholders have determined it to be in the best interests of the Company for the Transaction to be consummated.
3.2 Capitalization. The Company Shares are the only issued and outstanding equity interests of the Company and the Company Shares have been duly authorized, are validly issued, fully paid and non-assessable, and are not subject to any capital calls or subscriptions. There are no outstanding subscriptions, options, rights, warrants, conversion rights, agreements or commitments of any kind obligating the Company to issue, acquire or transfer any interests of any kind in the Company including the Company Shares. Except as set forth in Schedule 3.2, the Company has no outstanding or authorized stock appreciation, phantom stock, profit participation, or similar rights or plans.
3.3 Ownership of Company Shares. The Shareholders owns all of the Company Shares beneficially and of record, free and clear of all liens, encumbrances, pledges, options, warrants, rights of first refusal, claims, charges and restrictions of any nature.
3
3.4 Authority of Sellers. Each Seller has full power and authority to enter into this Agreement and the other agreements, instruments and documents contemplated by this Agreement (the “Related Documents”), to consummate the transactions contemplated hereby, and to perform all obligations hereunder and thereunder. The execution, delivery and performance by each Seller of this Agreement and the Related Documents have been duly and validly approved (and in the case of Company, by all necessary shareholder or member approval). This Agreement and each Related Document to which Company or Shareholders is a party, upon its execution and delivery, constitutes the legal, valid and binding obligation of such Party. The execution, delivery and performance of this Agreement and the Related Documents do not require the consent of or notice to any federal, state or local governmental authority or any other third party, except that notice must be provided to Medicare about change of ownership within 30 days of the Closing. Neither the execution nor the delivery of this Agreement and the Related Documents nor the consummation of the Transaction will conflict with or result in any violation of or constitute a default under any term of the Company’s articles of incorporation, charter or other organizational documents, its bylaws or operating agreement, or any agreement, mortgage, debt instrument, indenture or other instrument by which the Company or Shareholders is bound, or any judgment, decree, order, award, or any Laws applicable to the Company. Neither the execution and delivery of this Agreement and the Related Documents nor the consummation of the transactions contemplated thereby will result in the creation of any lien, security interest, charge or encumbrance upon any of the assets of the Company (the “Assets”) or result in the cancellation, modification, revocation or suspension of any license, certificate, permit or authorization held by the Company.
3.5 Title to Property. Except as set forth in Schedule 3.5 and Permitted Liens, the Company has good and marketable title to all of its Assets, free and clear of all liens, claims, charges, encumbrances, leases, pledges, security interests, mortgages, defects in title, equities, covenants and other restrictions of any nature whatsoever. Schedule 3.5 also identifies all guaranties by the Shareholders of any debt relating to the Assets. All of such guaranties are valid and subsisting. True, correct and complete copies of such guaranties and all amendments, assignments and consents thereto have been furnished by the Company to Buyer.
3.6 Real Property.
(a) The Company does not own any real property.
(b) Schedule 3.6(b) identifies and briefly describes the terms of all leases to which Company is a party covering any real property used by such Company. Schedule 3.6(b) also identifies all guaranties by the Sellers of any such leases. All of such leases and guaranties are valid and subsisting. The consummation of the Transaction will not require the Company to obtain the consent or approval from any lessor, sub-lessor or sub-lessee who is a party to any of such leases, except as disclosed in Schedule 3.6(b). True, correct and complete copies of such leases and guaranties and all amendments, assignments and consents thereto have been furnished by the Company to the Buyer.
4
3.7 Permits; Compliance with Laws and Litigation.
(a) Schedule 3.7(a) sets forth a complete and accurate list of all authorizations, approvals, consents, certificates, licenses, permits or franchises of or from any Government Entity (as hereinafter defined) or pursuant to any Law (as hereinafter defined) (collectively, the “Permits”) that are used or held for use in, necessary for or otherwise relating to the Business. The Company holds all Permits necessary for the lawful conduct of the Business under and pursuant to all statutes, laws, ordinances, rules, orders, ordinances or regulations (collectively, “Laws”) of any federal, state, local or foreign governmental department, commission, board, bureau, agency or instrumentality, including any federal or state courts (collectively, “Governmental Entity”), except where such failure would not have a Material Adverse Effect. All Permits have been legally obtained and maintained and are valid and in full force and effect. The Company is duly licensed to conduct the Business as presently conducted in all states in which the Business is conducted and, is in compliance with all of the terms and conditions of such licenses, except for the failure of which would not have a Material Adverse Effect. There has been no material change in the facts or circumstances reported or assumed in the application for or granting of any Permits. No outstanding violations are or have been, recorded in respect of any of the Permits. No proceeding is pending and no notice has been received by the Company or Shareholders threatening, or to Shareholders’ Knowledge otherwise threatened, to suspend, revoke, withdraw, modify or limit any Permit, and, to Shareholders’ Knowledge, there is no fact, error or admission relevant to any Permit that would permit the suspension, revocation, withdrawal, modification or limitation of, or result in the threatened suspension, revocation, withdrawal, modification or limitation of, or in the loss of any Permit.
(b) Each employee and independent contractor of each Company that is required to be licensed to perform his/her healthcare duties for the Company that require a license holds a valid and unrestricted license to practice or perform those healthcare duties in the state(s) where he or she performs such duties for the Company, and has held such a valid and unrestricted license for the purposes identified in this Section 3.7(b) at all times while employed or contracted by such Company, except where such failure would not have a Material Adverse Effect.
(c) The Company and its respective officers, managers, employees, and contractors have operated the Company’s Business in compliance with all Permits and Laws, including but not limited to, those Laws that apply to regulatory matters primarily relating to patient healthcare, healthcare providers and healthcare services (including, without limitation, the Social Security Act, as amended, Sections 1128, 1128A and 1128B, 42 U.S.C. Sections 1320a-7, 7(a) and 7(b), including Criminal Penalties Involving Medicare or Medicaid, commonly referred to as the “Federal Anti-Kickback Statute” and the Social Security Act, as amended, Section 1877, 42 U.S.C. Section 1395nn (Prohibition Against Certain Referrals), commonly referred to as the “Stark Statute,” the statute commonly referred to as the “Federal False Claims Act,” the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”), Durable Medical Equipment, Prosthetics Orthotics, and Supplies (“DMEPOS”) Supplier Standards and Quality Standards, state and local equivalents to such statutes and the rules and regulations issued pursuant thereto (collectively, as amended from time to time, “Healthcare Laws”), which are applicable to such Company, the Assets or the Company’s Business, except where such failure would not have a Material Adverse Effect. The Company has not received at its corporate address, and the Shareholders have no knowledge of any written notice or other written communication from any Governmental Entity at any time regarding (i) any actual, alleged, possible, or potential violation of, or failure to comply with, any Healthcare Laws or any other applicable laws, rules, regulations, ordinances or administrative orders, or (ii) any actual, alleged, possible, or potential obligations on the part of any Company to undertake, or to bear all or any portion of the cost of, any remedial action of any nature. For the past five years, the Company has not been served with any subpoenas, notices of investigation, or otherwise been provided with notice of any investigation from any Governmental Entity.
5
(d) All claims, reports, schedules and/or returns required to be filed by the Company with any Governmental Entity have been timely filed and all such claims, reports, schedules and/or returns are complete and accurate in all material respects. The Company has no liabilities to any payer with respect to claims submitted. The Company has maintained substantially all records required to be maintained by the Food and Drug Administration, Drug Enforcement Administration and State Board of Pharmacy and the Medicare and Medicaid programs and the laws of all other applicable federal, state and local Governmental Entities as required by applicable Healthcare Laws. There are no presently existing circumstances relating to the operations of the Company or otherwise that would result or would be reasonably likely to result in material violation of any such Healthcare Laws.
(e) There are no lawsuits, claims, proceedings or investigations pending or, to Shareholders’ Knowledge, threatened against, or affecting the Company, the Assets, the Business or the Shareholders, except as disclosed in Schedule 3.7(e). Neither the Company nor to Shareholders’ Knowledge, any of its employees, contractors or subcontractors have been convicted of, charged with or investigated for a Medicare, Medicaid or other Federal Health Care Program (as defined in 42 U.S.C. § 1320a-7b(f)) related offense, or convicted of, charged with or investigated for a violation of federal or state law relating to fraud, theft, embezzlement, breach of fiduciary duty or responsibility, financial misconduct, obstruction of an investigation or controlled substances. Neither the Company nor, to Shareholders’ Knowledge, any of its employees, contractors or subcontractors have been excluded or suspended from participation in Medicare, Medicaid or any other Federal Health Care Program, or have been debarred, suspended or are otherwise ineligible to participate in federal programs. Neither the Company nor any of its employees, contractors or subcontractors have committed any offense which may reasonably serve as the basis for any such exclusion, suspension, debarment or other ineligibility. The Company has not arranged or contracted with any individual or entity that is suspended, excluded or debarred from participation in, or otherwise ineligible to participate in a Federal Health Care Program or other federal program. There are no lawsuits, claims, or proceedings pending in which Company is the plaintiff or claimant or that relate to the Company Shares, the Assets or the Business.
(f) There are no lawsuits, claims, suits, proceedings or investigations pending or, to the knowledge of the Sellers, threatened, which involve the possibility of any judgment, order, award or other decision that might impair the ability of the Sellers, or any of them, to perform their respective obligations under this Agreement, or might impair the quality of title to the Assets or the Company Shares, or might adversely affect the normal operation of the Business, or might result in liability for damages or might otherwise adversely affect any Company’s right, title or interest in the Assets or the Business or the Shareholders’ right, title or interest in the Company Shares.
6
3.8 Unaudited Financial Statements.
(a) Attached, as Schedule 3.8(a), are copies of the unaudited income statements and balance sheets of the Company for the years ended December 31, 2016, 2017 and 2018, and for the ten (10) month period from January 1, 2019 through October 31, 2019 (collectively, the “Financial Statements”). The balance sheet dated October 31, 2019 shall be referred to as the “Most Recent Balance Sheet” and the income statement dated October 31, 2019 shall be referred to as the “Most Recent Income Statement” (and, together with the Most Recent Balance Sheet, the “Most Recent Financial Statements”). The Financial Statements are true, complete and correct and fairly present the financial condition and the results of operations of the Company in all material respects as of the respective dates and periods thereof. The assets of the Company to be acquired include all of the assets of the Company reflected in such Financial Statements and all assets acquired since the date of such Financial Statements, excepting only such assets as have been acquired or consumed in the ordinary course of business or those that have become obsolete or unnecessary to the Company. The Financial Statements: (i) are in accordance with the books and records of the Company; (ii) are consistently applied with prior periods and the accounting methods applied by the Company for tax purposes, excluding however, the Most Recent Financial Statements; and (iii) have been prepared on an accrual basis and generally in accordance with generally accepted accounting practices applied by the Company on a consistent basis, except for (A) the exclusion of notes and year-end adjustments and (B) the recognition of sales and related accounts receivable, net of estimated reserves for future billing adjustments or uncollectible balances, when billed (versus when service performed or product delivered).
(b) Except (i) to the extent reflected or reserved against in the Most Recent Balance Sheet or (ii) for unsecured current liabilities incurred since the date of the Most Recent Balance Sheet in the ordinary course of business, the Company has no liabilities or obligations, whether accrued, absolute, contingent or otherwise, whether due or to become due and whether the amounts thereof are readily ascertainable or not, or any unrealized or anticipated losses from any commitments of a contractual nature, including Taxes (as defined below) with respect to or based upon the transactions or events occurring prior to the Closing. The Company will not have any Indebtedness as of the Closing Date other than Indebtedness set forth on the Most Recent Balance Sheet (including Equipment Indebtedness set forth in Schedule 3.8(b) and auto loans) and Equipment Indebtedness incurred in the ordinary course of business following the date of this Agreement. The Most Recent Balance Sheet does not include receivables or any payables or loans due to or from the Company for amounts due to or from the Shareholders.
3.9 Absence of Adverse Changes or Other Events. Except as set forth on Schedule 3.9, since the Most Recent Balance Sheet, the Company has not: (a) created or incurred any liability (absolute or contingent); (b) loaned any money or otherwise pledged the credit of the Company, or mortgaged, pledged or subjected to any lien or otherwise encumbered any of the Assets; (c) suffered any losses or any other event or condition of any character adverse to its business, or waived any rights of substantial value; (d) made any capital expenditures or capital additions or improvements other than in the ordinary course of business; (e) directly or indirectly purchased, retired, redeemed or otherwise acquired any interests in, the Company Shares or other equity or ownership interests; (f) paid or promised to pay any bonuses or increased the compensation of the Sellers or any other employees; (g) issued or sold any shares of its stock or rights, options or warrants to purchase its stock or membership interest, or any securities convertible into its stock or membership interest or redeemed or made any agreement to redeem any of its outstanding stock; (h) become bound by or entered into any contract, commitment or transaction other than in the ordinary course of business; (i) entered into any contract or agreement to do or perform any of the foregoing actions; or (j) acquired or disposed of any assets except in the ordinary course of business.
7
3.10 Employees.
(a) The Company is not a party to any employment agreement, written or oral, which it cannot terminate at will without liability to the Company (assuming fulfillment of any accrued benefits or retirement plan distributions as listed in Schedule 3.10(b) and assuming compliance with all applicable laws and regulations, including, without limitation, anti-discrimination and equal employment opportunity and health care regulatory laws).
(b) Schedule 3.10(b) lists and briefly describes the Company’s pension, profit sharing, accrued benefit, retirement, or other employee benefit plans, and any health care, life insurance or other employee welfare plans and a complete copy of each such plan has been provided to the Buyer. Each such plan complies and has been administered in all material respects in accordance with all applicable Laws, including the Employee Retirement Income Security Act of 1974, as amended, and the rules and regulations promulgated thereunder or in connection therewith, and the Internal Revenue Code, as applicable.
(c) The names, titles and rates of compensation of all of the employees of the Company are listed in Schedule 3.10(c). None of the employees has indicated to the Company any intention to terminate his or her employment with the Company.
(d) The Company: (i) is not a party to any collective bargaining agreement, nor has the Company had any discussions or negotiations with any Person or group looking toward any such agreement; (ii) has not within the last five (5) years, experienced any strike, grievance, unfair labor practice claim or other labor difficulty; (iii) is unaware of any threatened strike, grievance, unfair practice claim or other labor difficulty, and there exists no reasonable basis for the assertion of any grievance or unfair labor practice claim or other charge or complaint against any Company by or before the National Labor Relations Board or any state, labor relations board or commission or representative thereof; (iv) is not aware of any filing by any employee or employee group seeking recognition as a collective bargaining representative or unit; and (v) has no reason to believe that any former employer of any of its employees is contemplating remedial action of any nature against such employee or the Company based on such employee having terminated the former employment and having become an employee of the Company. The Company has complied in all material respects with all applicable Laws relating to labor or labor relations or employment, including, without limitation, any provisions thereof relating to equal employment opportunity, wages, hours, employee safety, immigration control, drug testing, termination pay, vacation pay, fringe benefits, collective bargaining and the payment and/or accrual of the same and all taxes, insurance and all other costs and expenses applicable thereto, and the Company is not liable for any arrearage, or any taxes, costs or penalties for failure to comply with any of the foregoing. The Company has not incurred any liabilities, penalties or other charges under the Worker Adjustment and Retraining Notification Act (“WARN”) or any similar state law.
8
3.11 Intellectual Property.
(a) Company owns, and/or is properly and sufficiently licensed or otherwise possesses rights to use all: (i) trademarks and service marks (registered or unregistered), trade dress, trade names and other names and slogans embodying business goodwill or indications of origin, all applications or registrations in any jurisdiction pertaining to the foregoing and all goodwill associated therewith; (ii) inventions, technology, computer programs and software (including password unprotected interpretive code or source code, object code, development documentation, programming tools, drawings, specifications and data), and all applications and patents pertaining to the foregoing, including re-issues, continuations, divisions, continuations-in-part, renewals or extensions; (iii) trade secrets, including confidential and other non-public information; (iv) writings, designs, software programs, mask works or other works, applications or registrations in any jurisdiction for the foregoing and all moral rights related thereto; (v) databases and all database rights; (vi) internet websites, domain names and applications and registrations pertaining thereto; and (vii) to the Shareholders’ Knowledge, other intellectual property rights (“Company Intellectual Property”) that are used in the Business as currently conducted.
(b) There are no infringements of any Company Intellectual Property by any third party and the conduct of the Business as currently conducted or as currently planned to be conducted does not infringe any proprietary right of a third party.
(c) Schedule 3.11(c) sets forth a complete list of all patents, trademarks, registrations and pending registration applications pertaining to the Company Intellectual Property owned by the Company (collectively, the “Registered Intellectual Property”). All such Registered Intellectual Property is owned by the Company free and clear of liens or encumbrances of any nature.
(d) Schedule 3.11(d) sets forth a complete list of all licenses, sublicenses and other agreements in which either Company has granted rights to any Person or entity to make, use, sell, distribute or service any products or services which utilize or incorporate the Company Intellectual Property and a separate list of all material licenses, sublicenses and other agreements in which either Company has received rights from any Person to use the Company Intellectual Property (the “Licensed Intellectual Property”). As a result of the execution and delivery of this Agreement or any of the Related Documents or the performance of its obligations under this Agreement or the Related Documents, neither Company nor any Seller shall be in breach of any license, sublicense or other agreement relating to the Licensed Intellectual Property.
(e) The Company owns or has properly and sufficiently licensed or otherwise has the right to use all computer software currently used by the Company in the Business.
9
3.12 Customer Contracts and Business Documents. All of the Customer Contracts and Business Documents that are material to the Business are listed in Schedule 3.12. Other than the Customer Contracts and the Business Documents set forth on Schedule 3.12, the real property leases set forth on Schedule 3.6(b) (the “Real Property Leases”), the licenses, sublicenses and other agreements set forth on Schedule 3.11(d) (the “IP Licenses”), and the agreements set forth on Schedule 3.14 (the “Other Contracts” and together with the Customer Contracts, the Business Documents and the IP Licenses, the “Company Contracts”), Company does not have any other presently existing material contracts, agreements, leases, licenses or commitments, whether written or oral, affecting or relating to the Business. All of the material Company Contracts are valid and enforceable against the Company and are in full force and effect in accordance with their terms, and the consummation of the Transaction will not require obtaining the consent of or providing notice to any party to such Company Contract. The Company has delivered or made available copies of all of the Company Contracts to the Buyer as of the date of this Agreement. The Business and all equipment used in connection with it are now being utilized, operated and maintained, in all material respects, in conformity with the Company Contracts, and all applicable Laws. The Company has not at any time in any manner failed to so utilize, operate and maintain the Business in a manner that could now or hereafter result in cancellation or termination of any of the Company Contracts or in liability for damages under any of the Company Contracts or any applicable Laws, nor has either Company or, to the Shareholders’ Knowledge, the other party(s) to such Company Contracts, defaulted in its obligations pursuant to any of the Company Contracts, which default could result in the cancellation of any Company Contract or adversely affect the rights of such Company under such Company Contract. To Shareholders’ Knowledge, no party has indicated its intent to cancel any of the Company Contracts. The Company is not a party to any franchise, license, distributor or other similar type of agreement.
3.13 Broker or Finder. The party retaining any broker, finder or investment banker in connection with this Agreement will pay all amounts payable to such broker, finder or investment banker.
3.14 Contracts. Except as set forth in Schedule 3.14, the Company is not a party to or bound by any written or oral: (a) agreement or understanding not made in the ordinary course of the Business; (b) contract for personal services not terminable at will without liability to the Company; (c) continuing contract for the future purchase of materials, supplies, machinery or other equipment; (d) contracts or commitments for capital expenditures in excess of $2,000 in the aggregate; (e) loan, credit or financing agreements, including all agreements for any commitments for future loans, credit or financing; or (f) guarantee or suretyship agreement. Schedule 3.14 also identifies all guaranties by the Sellers and Affiliates thereof relating to the Business and any Assets of the Company. All of such guaranties are valid and subsisting. True, correct and complete copies of such guaranties and all amendments, assignments and consents thereto have been furnished by the Company to the Buyer.
3.15 Insurance.
(a) Schedule 3.15 lists and describes all insurance policies currently insuring any of the Assets or relating to the Business. All such policies are on (and for the applicable statute of limitations period plus one year have been on) an “occurrence basis,” which means, for example, that if a claim arose after the Closing Date for an event which occurred prior to the Closing Date, the applicable Company’s insurance policy in existence on the date such event occurred would cover such claim. All such policies are in full force and effect and the Company has not received any notice of cancellation with respect thereto. Except as disclosed in Schedule 3.15, during the past five (5) years, (i) no application by Company for insurance with respect to the Assets or the Business has been denied for any reason, and (ii) Company has had no claim made against it by any customer that would adversely affect such Company’s insurance rating. Attached to Schedule 3.15 is a copy of Company’s insurance claims history for the past five (5) years for each of the policies listed in Schedule 3.15 as well as for any claims that were self-insured.
10
(b) All policies to which Company is a party or that provide coverage to any Shareholders, member, director or officer of any Company: (i) taken together, provide adequate insurance coverage for the Assets and the operations of the Company for all risks normally insured against by a company carrying on the same business or businesses as the Company; (ii) are sufficient for compliance with all applicable Laws, rules, regulations and orders and all material Customer Contracts and Business Documents; and (iii) will continue in full force and effect following the consummation of the Transaction.
3.16 Environmental Matters. Other than storage and sale of oxygen in the ordinary course of business, neither Company nor any of the Company’s Affiliates have used, generated, stored or disposed of any Hazardous Materials on any property owned, occupied or leased by either Company or any of its Affiliates. To Shareholders’ Knowledge, no Hazardous Materials have been used, generated, stored or disposed of by any previous owner or other third party on any property owned, occupied or leased by any Company or any of its Affiliates.
3.17 Accounts Receivable. All accounts receivable of the Company that are reflected on the Most Recent Balance Sheet or on the accounting records of the Company as of the Closing Date (collectively, the “Accounts Receivable”) represent or will represent valid obligations arising from sales actually made or services actually performed in the ordinary course of business. Schedule 3.17 contains a complete and accurate list of all Accounts Receivable as of the date of the Most Recent Balance Sheet, which list sets forth the aging of such Accounts Receivable, including those receivables which have been outstanding for more than 180 days.
3.18 Banks, Officers and Powers of Attorney. Schedule 3.18 lists: (a) all banks (with account numbers) in which Company has an account or safe deposit box and the names of all persons authorized to draw thereon or have access thereto; (b) the names of all incumbent directors and officers of the Company; and (c) the names of all persons holding powers of attorney from the Company and a summary statement of the terms thereof.
3.19 Certain Business Relationships with Affiliates. Except as disclosed in Schedule 3.19, neither Shareholders nor any Affiliate of the Company or Shareholders: (a) owns any property or right, tangible or intangible, which is used in the Business, (b) has any claim or cause of action against the Company, (c) owes any money to or is owed money by Company other than as may be reflected on the Most Recent Balance Sheet or for expenses required to be reimbursed in the ordinary course of business, (d) have or have had any ownership, leasehold or other interest, whether direct or indirect, in any customer of the Business, (e) are or have been employed in any sales or management position, whether directly or indirectly, by any customer of the Business, or (f) are or have been able to control or authorize the purchase or procurement of any pharmacy or home health care services or related products by any customer from the Business.
3.20 Questionable Payments. Neither the Company, nor any of its directors, officers, agents, employees or other Person or entity associated with or acting on behalf of the Company, directly or indirectly, has: (i) used any of the Company’s funds for unlawful contributions, gifts, entertainment or other unlawful payments or expenses relating to political activity, (ii) made any direct or indirect unlawful payments to government officials or employees, or foreign government officials or employees, from Company funds, (iii) established or maintained any unlawful or unrecorded fund of Company monies or other assets, (iv) made any false or fictitious entries on the books of account of the Company or (v) made or received any bribe, payoff, or other influence payment.
11
3.21 Medicare and Medicaid Program Participation. Company (a) is currently participating in good standing with the Medicare and applicable Medicaid Programs in the geographic areas in which such Company provides services or products, (b) is eligible to receive payment under those Programs for which such Company is a participating provider, (c) and is a party to valid provider agreements related to such programs, true and complete copies of which have been supplied to the Buyer. Company has obtained and maintains a Medicare Provider Transaction Number (“PTAN”) and Medicaid provider numbers for various states. Section 3.21 of the Disclosure Schedules contains is a list of all Medicare and Medicaid provider numbers held by each Company. No Seller Party has received any notice indicating that such participation may be terminated or withdrawn nor have any reason to believe that such qualification may be terminated or withdrawn. Except as set forth in Schedule 3.21, there are no pending appeals, overpayment determinations, adjustments, challenges, audit, litigation or notices of intent to open Medicare or Medicaid claim determinations or other reports required to be filed by the Company. The Company shall conduct a search of relevant databases as they exist prior to the Closing Date to confirm that neither the Company, nor any Affiliate, shareholder, member officer, director, or employee of such Company is identified as “excluded individuals or entities” as said term is defined by Section 1128(a) of the Social Security Act (codified at 42 U.S.C. Section 1320a-7).
3.22 Stark Law. The conduct of the Business by the Buyer and/or the Company upon and after the Closing Date in a manner consistent with the past practices of the Company, and having the same officers, directors, employees as the companies had immediately prior to the Closing Date will not constitute a violation of 42 U.S.C. 1395nn.
3.23 Tax Matters.
(a) The Company has timely filed or caused to be timely filed or will timely file or cause to be timely filed with the appropriate taxing authorities all returns, statements, forms and reports for Taxes (the “Returns”) that are required to be filed by, or with respect to, the Company on or prior to the Closing Date. The Returns have accurately reflected and will accurately reflect in all material respects all liability for Taxes of the Company for the periods covered thereby. The Company has paid all Taxes on or before the date on which such Taxes were due and has adequately accrued or reserved for on the Most Recent Balance Sheet all Taxes which are not yet due and payable.
(b) All Taxes which the Company is (or was) required by law to withhold or collect have been duly withheld or collected, and have been or will be timely paid over to the proper authorities to the extent due and payable.
(c) The Company is not and has never been a publicly traded partnership for United States federal income tax purposes.
12
(d) The Company is not liable for any amounts in respect of Taxes imposed on or with respect to any other Person or entity, whether by law or by contract.
(e) No United States federal, state or local or foreign audits, examinations, investigations or other administrative proceedings or court proceedings are, to the knowledge of the Company or any Shareholders, currently pending or threatened in writing with regard to any income Tax or any other material Tax of, or any income Return or other material Return filed by or on behalf of, the Company. There is no claim against the Company for any Tax, and no assessment, deficiency or adjustment has been asserted, proposed or threatened in writing with respect to any Return or Tax with respect to the Company.
(f) There are no outstanding waivers, extensions or comparable consents regarding the application of the statute of limitations with respect to any Taxes or Returns of the Company.
(g) No closing agreements, private letter rulings or technical advice memoranda or similar agreements or rulings with respect to Taxes have been entered into or issued by any taxing authority with respect to the Company.
(h) No power of attorney has been granted by or with respect to the Company with regard to any material matters relating to Taxes.
(i) No taxing authority has asserted that the Company should be filing Returns in any jurisdiction where the Company has not been filing Returns.
(j) The Company has not participated in any (i) “tax shelter” within the meaning of Section 6111 of the Code (as in effect prior to the enactment of Public Law 108-357) (or any comparable laws of jurisdictions other than the United States) or (ii) “reportable transaction” within the meaning of Treasury Regulations Section 1.6011-4 (as in effect at the relevant time) (or any comparable laws of jurisdictions other than the United States).
(k) No tax is or will be required to be withheld under Section 1445 of the Code as a result of the acquisition of the Company Shares by the Buyer pursuant to this Agreement.
(l) For all periods from the date of its formation through and including the day immediately prior to the Closing, the Company has been, for federal (and, where applicable, state and local) income Tax purposes, properly treated as an “S corporation” within the meaning of Code § 1361(a)(1). The Company is not a successor (whether by merger, liquidation, conversion or otherwise) to any Person that at any time was taxable as a “corporation” for federal, state or local Income Tax purposes.
(m) For the purposes of this Agreement, “Tax” or “Taxes” means all taxes, assessments, charges, duties, fees, levies or other governmental charges, including, without limitation, all federal, state, local, foreign and other income, franchise, profits, capital gains, membership interest, transfer, sales, use, occupation, property, excise, severance, windfall profits, stamp, license, payroll, withholding and other taxes, assessments, charges, duties, fees, levies or other governmental charges of any kind whatsoever (whether payable directly or by withholding and whether or not requiring the filing of a Return), all estimated taxes, deficiency assessments, additions to tax, penalties and interest and shall include any liability for such amounts as a result either of being a member of a combined, consolidated, unitary or affiliated group or of contractual obligations to indemnify any Person or other entity.
13
3.24 Tax Advisors. Sellers have reviewed with their own tax advisors the U.S. federal, state and local and non-U.S. tax consequences of this investment and the transactions contemplated by this Agreement. With respect to such matters, Shareholders are relying solely on such advisors and not on any statements or representations of the Buyer or any of its respective principals, agents, written or oral. Each Shareholder understands and acknowledges that he or she (and not the Buyer) shall be responsible for his or her own tax liability that may arise as a result of an investment in Parent Stock or the transactions contemplated hereby.
3.25 Billing Practices. All billing practices of the Company with any commercial insurance payor, managed care plan, other prepaid plan, health care service plan or other third party payor, including any Governmental Entity or private payor (collectively “Payors”), including amounts such Company is entitled to receive under the Programs and from cash payors, are and have been in material compliance with all applicable Laws and/or billing guidelines of the Programs and the Payors. Company has not intentionally or negligently billed or received any payment or reimbursement in excess of amounts allowed by applicable Law or contract. There are no claims, actions, or appeals pending (and neither Company has filed any claims or reports that should result in any such claims, actions or appeals) before any commission, board or agency, including, without limitation, any fiscal intermediary or carrier or the Centers for Medicare & Medicaid Services (“CMS”), with respect to any state or federal Medicare or Medicaid claims filed on behalf of such Company.
3.26 Certain Actions. Company is not a party to a corporate integrity agreement with the Office of the Inspector General of the Department of Health and Human Services or any other Governmental Entity, or has any reporting obligations pursuant to any settlement agreement entered into with any Governmental Entity.
4. | REPRESENTATIONS, WARRANTIES AND COVENANTS OF BUYER |
As an inducement to the Sellers to enter into this Agreement and to consummate the transactions contemplated by this Agreement, Buyer represents, warrants and covenants to the Sellers as hereafter set forth in this Section 4, and acknowledge that Sellers are relying upon such representations, warranties and covenants contained in this Section 4 as being true and correct:
4.1 Authority. Buyer is a corporation duly incorporated and organized, validly existing and in good standing under the laws of the State of Nevada. Buyer has full corporate power and authority to enter into this Agreement and the Related Documents, to consummate the transactions contemplated hereby and thereby and to perform its obligations hereunder and thereunder, and the board of directors of Buyer has determined it to be in the best interest of the respective corporations to consummate the Transaction. The execution, delivery and performance by Buyer of this Agreement and the Related Documents have been duly and validly approved by all necessary corporate action. This Agreement and each Related Document to which either or both of Buyer is a party, upon its execution and delivery, constitutes the legal, valid and binding obligation of Buyer. Neither the execution and delivery of this Agreement and the Related Documents nor the consummation of the transactions contemplated hereby and thereby will conflict with or result in any violation of or constitute a default under any term of the Articles of Incorporation or equivalent charter document or Bylaws of each Buyer or any agreement, mortgage, debt instrument, indenture or other instrument, judgment, decree, order, award, law or regulation by which each Buyer is bound.
14
5. | [INTENTIONALLY OMITTED] |
6. | CONDITIONS PRECEDENT TO OBLIGATIONS OF BUYER |
The obligations of Buyer to consummate the transactions contemplated hereby are subject to the satisfaction, at or prior to the Closing, of each of the following conditions (any of which may be waived by Buyer in whole or in part):
6.1 Accuracy of Representations and Warranties. Each of the representations and warranties of the Sellers in this Agreement shall be accurate in all material respects as of the date of this Agreement. The Buyer must have completed all due diligence and the results of which are satisfactory to the Buyer in its sole and absolute discretion.
6.2 Sellers’ Performance. All of the covenants and obligations that Sellers are required to perform or to comply with pursuant to this Agreement at or prior to the Closing must have been duly performed and complied with in all material respects.
6.3 Documents, Certificates and Other Items. The Sellers will have delivered or caused to be delivered to Buyer:
(a) Delivery by the Shareholders of duly executed assignments of the Company Shares;
(b) A current Certificate of Good Standing issued by the Secretary of State of the State of Maine, such certificate dated not more than 15 days prior to the Closing Date;
(c) a certificate of Company certifying (i) a true and complete copy of the Company’s articles of incorporation or charter, (ii) a true and complete copy of the Company’s Bylaws or operating agreement, and (iii) resolutions of the directors or managers of the Company and the Shareholders approving and authorizing the Company’s execution this Agreement and the Related Documents and the Company’s performance of its obligations under this Agreement and the Related Documents, and (ii) true and complete copies of the minutes of any meeting of the Shareholders or of any actions taken by the Shareholders without a meeting;
(d) A certificate signed by each of the Shareholders, individually, and of an officer of the Company, stating that the conditions specified in Sections 6.1 and 6.2 have been satisfied;
(e) A Non-Competition Agreement executed and delivered by Shareholders in the form attached hereto as Exhibit A;
15
(f) Employment Agreements, executed and delivered by each Shareholder in the forms attached hereto as Exhibit B-1 and B-2 (collectively, the “Employment Agreements”);
(g) A certificate executed by the Shareholders, satisfying the requirements of Treasury Regulations Section 1.1445-2(b) (2), stating that the Shareholders are not a “foreign person”;
(h) A Lease Agreement by and between Shareholders, as lessors, and the Company, as lessee, duly executed by the Shareholders, and in the form of Exhibit C attached hereto (the “Fort Fairfield Lease”)
(i) Sublease of the Aroostook Mall Lease from the Shareholders to the Company, in form acceptable to the Buyer (the “Aroostook Sublease”);
(j) Sellers shall have executed and delivered a Closing Statement in form mutually agreed by Buyer and Sellers (the “Closing Statement”); and
(k) All other documents and instruments required under this Agreement or reasonably requested by Buyer in connection with the consummation of the transactions contemplated by this Agreement.
6.4 Adverse Change. Since the date of the Most Recent Balance Sheet, there has been no Material Adverse Change.
6.5 Indebtedness.
(a) On the Closing Date, the Company will have no outstanding liabilities for any indebtedness or other liability (including capital leases), except for the following: trade payables which are “in terms” and do not exceed $150,000 in the aggregate (to the extent the trade payables exceed the $150,000 limit, such excess shall be deducted from the Purchase Price and the Closing Cash Payment. All of the following shall be satisfied in full prior to Closing (or, alternatively, at the option of the Buyer, remain in place and deducted from the Purchase Price and the Closing Cash Payment): (i) bank loans and other indebtedness; (ii) deferred and accrued employee compensation, including payroll, payroll taxes, bonus, vacation and PTO liabilities; (iii) non-trade, not-operating related payables; (iv) related-party liabilities. All Assets of the Company will be free and clear of liens, security interests, claims, mortgages or other encumbrances of any kind.
(b) The Sellers shall cause the Company to deliver to Buyer not less than two (2) Business Days prior to the Closing Date a certificate setting forth the Indebtedness of the Company as of the Closing Date and the Apportionments (the “Estimated Closing Date Certificate”). Within 60 days after the Closing Date, Buyer shall prepare and deliver to the Sellers a statement (the "Closing Date Statement"), setting forth its calculation of the Indebtedness and Appropriations and any resulting post-Closing adjustments (the "Post-Closing Adjustments") due to a difference between the estimated Indebtedness and the estimated Apportionments, each as reflected on the Closing Date Statement.
16
(c) Examination and Review.
(i) After receipt of the Closing Date Statement, the Sellers shall have 30 days (the "Closing Review Period") to review the Closing Date Statement. During the Closing Review Period, the Sellers and the Company's accountants shall have full access to the books and records of the Company, the personnel of, and work papers prepared by, Buyer and/or Buyer's Accountants to the extent that they relate to the Closing Date Statement and to such historical financial information (to the extent in Buyer's possession) relating to the Closing Date Statement as the Sellers may reasonably request for the purpose of reviewing the Closing Date Statement and to prepare a Closing Statement of Objections (as defined below), provided, that such access shall be in a manner that does not unreasonably interfere with the normal business operations of Buyer or the Company.
(ii) On or prior to the last day of the Closing Review Period, the Sellers may object to the Closing Date Statement by delivering to Buyer a written statement setting forth the Sellers objections in reasonable detail, indicating each disputed item or amount and the basis for the disagreement therewith (the "Closing Statement of Objections"). If the Sellers fail to deliver the Closing Statement of Objections before the expiration of the Closing Review Period, the Closing Date Statement and the Post-Closing Adjustments shall be deemed to have been accepted by the Sellers. If the Sellers deliver the Closing Statement of Objections before the expiration of the Closing Review Period, Buyer and the Selling Shareholders shall negotiate in good faith to resolve such objections within 30 days after the delivery of the Closing Statement of Objections (the "Closing Resolution Period"), and, if the same are so resolved within the Closing Resolution Period, the Post-Closing Adjustment and the Closing Date Statement, with such changes as may have been previously agreed in writing by Buyer and the Selling Shareholders, shall be final and binding.
(d) Payment of Post-Closing Adjustment.
(i) If the Post-Closing Adjustment, as finally resolved, is a negative number, then the amount thereof shall be offset on a dollar-for-dollar basis against the next installments of the Cash Holdback Payments.
(ii) If the Post-Closing Adjustment, as finally resolved, is a positive number, then the Buyer shall pay, no later than five (5) Business Days after the Post-Closing Adjustment is finally resolved the Post-Closing Adjustment to the Sellers in immediately available funds, to be paid in accordance with such Shareholder’s Pro Rata Share of such Post-Closing Adjustment.
(iii) Any payments made pursuant to this Section 6.5(d) shall be treated as an adjustment to the Purchase Price by the parti1es for Tax purposes, unless otherwise required by Law.
17
7. | CONDITIONS PRECEDENT TO OBLIGATIONS OF SELLERS |
The obligations of the Sellers to consummate the transactions contemplated hereby are subject to the satisfaction, at or prior to the Closing, of each of the following conditions (any of which may be waived by Sellers, in whole or in part):
7.1 Accuracy of Representations and Warranties. Each of the representations and warranties of the Buyer in this Agreement shall be accurate in all material respects as of the date of this Agreement.
7.2 Buyer’s Performance. Each of the covenants and obligations that Buyer is required to perform or to comply with pursuant to this Agreement at or prior to the Closing must have been duly performed and complied with in all material respects.
7.3 Documents, Certificates and Other Items. Buyer will have delivered the following to Shareholders:
(a) All of the documents or instruments required to be delivered by the Buyer under this Agreement;
(b) All other documents and instruments reasonably required by the Sellers in connection with the consummation of the transactions contemplated by this Agreement;
(c) A certificate signed by an officer of the Buyer stating that the conditions specified in Sections 7.1 and 7.2 have been satisfied;
(d) Company shall have executed and delivered the Aroostook Sublease Assignments;
(e) Company shall have executed and delivered the Fort Fairfield Lease;
(f) Buyer shall have executed and delivered each of the Employment Agreements;
(g) Buyer shall have executed and delivered the Closing Statement; and
(h) All other documents and instruments required under this Agreement or reasonably requested by the Sellers in connection with the consummation of the transactions contemplated by this Agreement.
8. | INDEMNIFICATION |
8.1 Indemnification by the Shareholders.
(a) The Shareholders, jointly and severally, agree to indemnify, hold harmless, defend and bear all costs of defending Buyer and its respective past, present and future employees, directors, officers, stockholders, agents and attorneys , from, against and with respect to any and all damage, loss, deficiency, expense (including any reasonable attorney and accountant fees, legal costs or expenses), action, suit, proceeding, demand, assessment or judgment to or against Buyer, together with their respective past, present and future employees, directors, officers, stockholders, agents, attorneys, successors and assigns, (collectively, “Buyer’s Aggregate Net Loss”) arising out of or in connection with:
18
(i) Any breach or inaccuracy of any representation or warranty of the Sellers contained in this Agreement;
(ii) Any claim by any person asserting any ownership interest in or rights to the Business or to acquire any equity interest of the Company or its Subsidiaries;
(iii) Fees and expenses of persons engaged by any Seller in connection with the negotiation and execution of this Agreement or consummation of the transactions contemplated hereby;
(iv) business activities of the Company prior to the Closing Date including, but not limited to, those arising from any services or products provided by Company prior to the Closing Date (excluding however, customary warranty and service work performed by the Company in the ordinary course of business);
(v) any claims by third parties made against the Company or its Subsidiaries, or the Buyer after the Closing Date arising from or relating to any action, inaction, event, occurrence or circumstance occurring or existing prior to the Closing Date (excluding however, customary warranty and service work performed by the Company in the ordinary course of business); and
(vi) Any violation of, or nonperformance by, the Sellers of any of their respective covenants or agreements contained in this Agreement or in any Related Document.
8.2 Indemnification by the Buyer.
(a) The Buyer agrees to indemnify, hold harmless, defend and bear all costs of defending the Sellers, from, against and with respect to any and all damage, loss, deficiency, expense (including any reasonable attorney and accountant fees, legal costs or expenses), action, suit, proceeding, demand, assessment or judgment to or against the Sellers arising by virtue of his or her status as a shareholder, officer, employee, director or agent of the Company or his or her sale of the Company Shares pursuant to this Agreement (collectively, the “Sellers’ Aggregate Net Loss”) arising out of or in connection with:
(i) All liabilities, damages or claims arising out of the business activities of the Company occurring on and after the Closing Date, other than those arising out of or in connection with any breach, violation, nonperformance or activities covered by Section 8.1(a);
(ii) Any breach or inaccuracy of any representation or warranty of Buyer contained in this Agreement or in any Related Document;
19
(iii) Fee and expenses of persons engaged by Buyer in connection with the negotiation and execution of this Agreement or consummation of the transactions contemplated hereby; and
(iv) Any violation of, or nonperformance by, the Buyer of any of its covenants or agreements contained in this Agreement or in any Related Document.
8.3 No Duplicate Recovery. In the event an indemnified party recovers damages in respect of an indemnification claim, no other indemnified party may recover the same damages in respect of a claim for indemnification under this Agreement.
8.4 Tax Treatment of Indemnity Payments. Sellers and Buyer agree that any indemnification payments made pursuant to Section 8 of this Agreement shall be treated for all tax purposes as an adjustment to the purchase price unless otherwise required by Law.
8.5 Survival of Indemnity Obligations. The rights of Buyer and the Sellers to assert indemnification claims under Section 8 will survive the Closing Date and will expire (a) as to claims arising relating to a breach of Sections 3.2 (Capitalization), 3.3 (Ownership of Company Units), 3.4 (Authority of Sellers), Sections 3.7 (Permits; Compliance with Laws; Litigation), 3.16 (Environmental Matters), 3.20 (Questionable Payments), 3.22 (Stark Law), 3.21 (Medicare and Medicaid Program Participation), 3.23 (Tax Matters), 4.1 (Authority) and 4.2 (Status of Parent Stock) (collectively the “Fundamental Representations”), claims for fraud and with respect to undisclosed liabilities, and any claim arising pursuant to Section 8.2(a)(i), on the date on which the running of the statute of limitations with respect to any such claim will bar the assessment and collection of such claim, and (b) as to all other claims, twelve (12) months from and after the Closing Date.
8.6 Notice of Claims. If any claim is made by or against a party which, if sustained, would give rise to a liability of the other party under this Section 8, that party (the “Claiming Party”) will promptly cause a written notice of the claim to be delivered to the other party (the “Indemnifying Party”) and will afford the Indemnifying Party and its counsel who is reasonably determined to be qualified and approved by the Claiming Party, at the Indemnifying Party’s sole expense, the opportunity to defend or settle the claim (and, with respect to claims made by third parties, the Claiming Party will have the right to participate in the defense or settlement of such claim at its sole expense). Any notice of a claim will state, with reasonable specification, the alleged basis for the claim and the amount of liability asserted by or against the other party by reason of the claim. If such notice is not given, it will not release the Indemnifying Party, in whole or in part, from its obligations under this Section 8, except to the extent that the Indemnifying Party’s ability to defend against such claim is materially prejudiced thereby. The Indemnifying Party will not be liable for any costs incurred by or compromise or settlement reached by the Claiming Party without the Indemnifying Party’s prior written consent; provided however, if notice is given and the Indemnifying Party fails to assume the defense of the claim within fifteen (15) days thereof, the claim may be defended, compromised or settled by the Claiming Party without the consent of the Indemnifying Party and the Indemnifying Party will be liable for the costs of such defense and associated with any such compromise or settlement and shall remain liable under this Section 8. Notwithstanding anything to the contrary herein, Buyer may elect, in its sole discretion, to recover a portion or all of Buyer’s Aggregate Net Loss by reducing the amounts due under Section 1.4 or otherwise payable hereunder or under a Related Document. Such reduction shall be deemed to be the payment of such payments. The Sellers agree and acknowledge that they shall not be entitled to be indemnified by, or receive contribution from, the Company with respect to any indemnification claims made against them hereunder.
20
8.7 Limitations
(a) For the sole purpose of determining Buyer’s Aggregate Net Loss (and not determining whether or not any breaches of representations and warranties have occurred), the representatives and warranties of Sellers shall not be deemed qualified by any references to materiality, Material Adverse Effect or Material Adverse Change.
(b) Notwithstanding anything to the contrary contained in this Section 8, the Shareholders will have no liability (other than the Fundamental Representations, for which the following limitation will not apply) in excess of the Purchase Price (the “Cap”).
8.8 Right of Holdback and Setoff. Upon notice to the Shareholders specifying in reasonable detail the basis for any claim for which a Buyer may be entitled to indemnity pursuant to Section 8, the Buyer may hold back from any Cash Holdback Payment, its good faith reasonable estimation of the Buyer’s Aggregate Net Losses for such claim until such time as the claim is resolved and the actual Buyer’s Aggregate Net Losses are determined in accordance with Section 10.11 (the “Resolved Claim Amount”), after which Buyer shall be entitled to set-off the Resolved Claim Amount against the next accruing installments of the Cash Holdback Payments. Buyer shall promptly release to Shareholders when payable pursuant to Section 1.2(c), the applicable Cash Holdback Payment in excess of any Resolved Claim Amount and estimated Indemnified Amount for any unresolved claims hereunder.
8.9 Tax Treatment of Indemnification Payments. Any Indemnified Amounts payable by Shareholders to Buyer shall be treated as an adjustment to the Purchase Price for Tax purposes.
8.10 Mitigation of Loss. Each Indemnified Party shall be required to use reasonable commercial efforts to mitigate Indemnified Amounts.
8.11 Releases. In addition to the indemnification obligations of Buyer pursuant to this Section 8, Buyer shall use all commercially reasonable efforts to obtain the release of the Shareholders and its Affiliates from any and all guarantees in respect of liabilities and obligations of the Company, including without limitation, the Third Party Leases, Equipment Indebtedness and vendors and suppliers of the Company.
8.12 Materiality. For purposes of determining whether there has been a breach and the amount of any losses that are the subject matter of a claim for indemnification hereunder, each representation, warranty and covenant in this Agreement and each certificate or document delivered pursuant hereto shall be read without regard to and without giving effect to the terms(s) “material”, “Material Adverse Effect” (which shall instead be read as adverse effect on, or change to), “material adverse change”, “immaterial” or similar qualifiers as if such words and surrounding related words (e.g., “reasonably be expected to,” “could have” and similar restrictions and qualifiers) were deleted from such representation, warranty or covenant.
21
9. | [INTENTIONALLY OMITTED] |
10. | GENERAL PROVISIONS |
10.1 Confidentiality. The Buyer and Sellers agree to maintain in confidence, and will cause the directors, officers, employees, agents, and advisors of Buyer and the Sellers, respectively, to maintain in confidence, any written, oral, or other information obtained in confidence from another party in connection with this Agreement or the transactions contemplated hereby, unless (i) such information is already known to such party or to others not bound by a duty of confidentiality or such information becomes publicly available through no fault of such party, (ii) the use of such information is necessary or appropriate in making any filing or obtaining any consent or approval required for the consummation of the transactions contemplated hereby or otherwise is reasonably necessary to satisfy any of the conditions precedent specified in Sections 6 and 7, or (iii) the furnishing or use of such information is required by or necessary or appropriate in connection with legal proceedings. Notwithstanding the foregoing, Buyer or its Affiliates may make announcements regarding this Agreement and the transactions contemplated hereby to comply with Canadian securities regulations, provided that the Company or its representative(s) shall have the opportunity to review and comment on any proposed announcement. If the Transaction is not consummated, each party will return or destroy all confidential information provided by the other party as the providing party may reasonably request.
10.2 Governing Law. This Agreement, including all exhibits and schedules and all documents or instruments delivered in connection herewith, and all disputes among the parties under this Agreement will be governed by, and construed and enforced in accordance with and decided pursuant to, the laws of the Commonwealth of Kentucky (and in accordance with federal law interpreting the Federal Arbitration Act where applicable), without regard to any jurisdiction’s conflicts or choice of law provisions.
10.3 Notices. All notices or other communications required or permitted hereunder will be in writing and will be deemed given or delivered when delivered personally, by registered or certified mail, by legible facsimile transmission or by overnight courier (fees prepaid) addressed as follows:
22
If to Buyer: |
ProTech Home Medical Corp.
Wilder, KY 41076
|
|
With a copy by email to: | hmehta@myphm.com | |
With a copy to: |
Katz, Teller, Brant & Hild 255 East Fifth Street, Suite 2400 Cincinnati, Ohio 45202 Attn: John R. Gierl, Esq. |
|
With a copy by email to: | jgierl@katzteller.com | |
If to the Shareholders or the Company, to: |
Scott A. Clark [REDACTED: PERSONAL CONTACT INFORMATION]
[REDACTED: PERSONAL CONTACT INFORMATION] |
|
With a copy to: |
Solman & Hunter, P.A. P.O. Box 665 Caribou, Maine 04736 Attn: Richard D. Solman, Esq. |
|
With a copy by email to: | rsolman@solmanhunter.com | |
or to such address as such party may indicate by a notice delivered to the other parties. Notice will be deemed received the same day (when delivered personally), five (5) days after mailing (when sent by registered or certified mail) and the next business day (when delivered by overnight courier). Any party to this Agreement may change its address to which all communications and notices may be sent by addressing notices of such change in the manner provided.
10.4 Assignment. This Agreement may not be assigned by any party without the prior written consent of all of the other parties hereto.
10.5 Entire Agreement; Amendments. This Agreement along with the Schedules and Exhibits attached hereto and the Related Documents is an integrated document, contains the entire agreement between the parties, wholly cancels, terminates and supersedes any and all previous and/or contemporaneous oral agreements, negotiations, commitments and writings of the parties with respect to such subject matter. No change, modification, extension, termination, notice of termination, discharge, abandonment or waiver of this Agreement, or any schedule or exhibit hereto, or any document or instrument delivered in connection herewith, or any of its provisions, nor any representation, promise or condition relating hereto or thereto, will be binding upon any party unless made in writing and signed by all of the parties hereto.
23
10.6 Expenses. Except as otherwise expressly provided in this Agreement, each party to this Agreement will bear his, her or its respective expenses incurred in connection with the preparation, execution, and performance of this Agreement and the transactions contemplated hereby, including all fees and expenses of agents, representatives, counsel, and accountants. For purposes of clarification, the Shareholders shall pay all such expenses incurred and paid by the Company after the Closing Date or its Subsidiaries and the Shareholders shall reimburse the Company at Closing for any such expenses which the Company or its Subsidiaries have paid. The party retaining any broker, finder or investment banker in connection with this Agreement will pay all amounts payable to such broker, finder or investment banker.
10.7 Partial Invalidity. Wherever possible, each provision will be interpreted in such manner as to be effective and valid under applicable law, but in case any one or more of these provisions will, for any reason, be held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability will not affect any other provisions of this Agreement, and this Agreement will be construed as if such invalid, illegal or unenforceable provision or provisions had never been contained herein, unless the deletion of such provision or provisions would result in such a material change as to cause the completion of these transactions to be unreasonable.
10.8 Tax Matters; Further Assurances.
(a) The Parties will execute such additional documents and instruments, take such other actions, complete such other formalities, and extend such other cooperation as may be reasonably requested or required to consummate the transactions contemplated by this Agreement. From time to time following the Closing Date and without further consideration: (a) the Sellers will immediately deliver to Buyer any cash or other property that such Sellers may receive in respect of receivables relating to the Assets and operations of the Business (whether attributable to periods before or after the Closing Date) and (b) each party will, at the request of the other party, execute and deliver to the other party such other instruments of conveyance and transfer as a party may reasonably request or as may be otherwise necessary to effect the Transaction or to more effectively convey and transfer to, and vest in, and put in possession of, in the case of Buyer, any part of the Company Shares or the Assets, and, in the case of Sellers, the Purchase Price.
(b) The Parties shall cooperate fully, as and to the extent reasonably requested by another Party, in connection with the filing of any tax returns pursuant to this Section 10.8 and any audit, litigation or other proceeding with respect to Taxes. The Sellers shall, at their expense, prepare all federal, state and local income tax returns for the period ending on the Closing Date and shall submit such returns to the Purchaser for approval prior to filing. Purchaser shall have thirty (30) days to review and dispute such tax returns. If not disputed, Sellers shall file them as required. The Company shall retain all tax returns, reports and work papers, and financial records of the Company for ten years after the Closing Date. Upon the request of a Party in connection with any such audit, litigation or other proceeding, the other Parties shall provide such records and information which are reasonably relevant and shall make employees available on a mutually convenience basis to provide additional information and explanation of any material provided hereunder. The Parties further agree, upon request, to provide the other Parties with information about the transactions contemplated by this Stock Purchase Agreement that the requesting Party may be required to report pursuant to the United States Internal Revenue Code (hereinafter referred to as the “Code”) and all Treasury Department Regulations promulgated thereunder.
24
(c) Prior to the Closing Date, the Company will not take any affirmative action to cause the Company not be taxed as an S corporation within the meaning of Code Sections 1361 and 1362.
(d) Each of the Sellers and Buyer shall cooperate in the preparation of all Tax Returns for any Tax periods for which the other party could reasonably require its assistance in obtaining any necessary information. As additional consideration for the Transaction, effective on the Closing Date, each Seller hereby releases any and all claims, rights, obligations, debts and causes of action, whether matured or unmatured, known or unknown, that such Seller, in his or her capacity as a shareholder, member, director, officer, employee or otherwise, may have against the Company, its Subsidiaries or the Buyer, or is respective Affiliates, other than claims under this Agreement.
10.9 Counterparts. This Agreement may be executed in one or more counterparts, each of which will be considered an original instrument and all of which together will be considered one and the same agreement, and will become effective when counterparts, which together contain the signatures of each party, will have been delivered to Buyer and Sellers. Delivery of executed signature pages by facsimile transmission, “pdf” or other electronic transmission will constitute effective and binding execution and delivery of this Agreement.
10.10 Interpretation. Article titles and headings to Sections are inserted for convenience of reference only and are not intended to be a part of or to affect the meaning or interpretation of any of the provisions of this Agreement. All references to Sections and subsections contained in this Agreement refer to the Sections and subsections of this Agreement. All references to Schedules or Exhibits contained in this Agreement are references to the Schedules or Exhibits described on the list immediately following the signature page hereto. All references to the words “include” or “including” shall mean “including without limitation.” Any and all Schedules, Exhibits, statements, reports, certificates or other documents or instruments referred to in or attached to this Agreement, including the “Background” portion of this Agreement, are incorporated by reference as though fully set forth at the point referred to in this Agreement. There will be no presumption against any party on the ground that such party was responsible for preparing this Agreement or any part of it. All pronouns and any variations thereof will be deemed to refer to the masculine, feminine, neuter, singular or plural as the context may require.
10.11 Disputes.
(a) All disputes which in any manner arise out of or relate to this Agreement or the subject matter thereof (but not including disputes under employment agreements, which shall be governed by the provisions of such agreements) shall be resolved exclusively by arbitration in accordance with the provisions of this Section. A party may commence arbitration by sending a written demand for arbitration to the other parties. However, such demand shall not be effective unless it sets forth in detail the nature of the controversy, the dollar amount involved, if any, the remedies sought, and attached to such demand is a copy of this subsection.
(b) There shall be one arbitrator. If the parties shall fail to select a mutually acceptable arbitrator within ten (10) days after the demand for arbitration is mailed, then the parties stipulate to arbitration before a single arbitrator sitting on the panel of the American Arbitration Association (“AAA”), and selected in the sole discretion of the AAA administrator. The arbitrator will have background and qualifications to consider disputes involving mergers and acquisitions law, corporate law and health care regulatory law.
25
(c) The parties shall share all costs of arbitration, except that the prevailing party shall be entitled to reimbursement by the other party of such party’s attorneys’ fees and costs and any arbitration fees and expenses incurred in connection with the arbitration hereunder.
(d) The substantive law of the Commonwealth of Kentucky shall be applied by the arbitrator.
(e) Arbitration shall take place in Cincinnati, Ohio unless the parties otherwise agree. As soon as reasonably practicable, a hearing with respect to the dispute or matter to be resolved shall be conducted by the arbitrator. As soon as reasonably practicable thereafter, the arbitrator shall arrive at a final decision, which shall be reduced to writing, signed by the arbitrator and mailed to each of the parties and their legal counsel.
(f) All decisions of the arbitrator shall be final, binding and conclusive on the parties and shall constitute the only method of resolving disputes or matters subject to arbitration pursuant to this Agreement. The arbitrator or a court of appropriate jurisdiction may issue a writ of execution to enforce the arbitrator’s judgment.
(g) Notwithstanding the foregoing, because time is of the essence of this Agreement, the parties specifically reserve the right to seek a judicial temporary restraining order, preliminary injunction, or other similar short term equitable relief, and grant the arbitrator the right to make a final determination of the parties’ rights, including whether to make permanent or dissolve such court order. The arbitrator shall have the power to grant all legal and equitable remedies provided by Kentucky or federal law; provided however, said arbitrator shall not have the power to award punitive or exemplary damages. The decision of the arbitrator may be entered in any court having jurisdiction thereof and the award may be judicially enforced.
10.12 Third-Party Beneficiaries. This Agreement will not confer any rights or remedies upon any Person (including any Related Party) other than the parties to this Agreement and their respective successors and permitted assigns.
10.13 Definitions. In addition to words and terms defined elsewhere in this Agreement, the following words and terms shall have the following respective meanings:
“Accounts Payable” shall have the same meaning and import as provided by the definition of Accounts Payable under Generally Accepted Accounting Principles.
“Accrued Liabilities” shall have the same meaning and import as provided by the definition of Accrued Liabilities under Generally Accepted Accounting Principles.
“Agreement” shall mean this Purchase Agreement, including the exhibits and schedules attached hereto, as the same may be amended, supplemented or modified in accordance with the terms hereof.
26
“Affiliate” means, with respect to any Person, any of (a) a manager, member, director, officer or shareholder of such Person and (b) any other Person that, directly or indirectly through one or more intermediaries, controls, or is controlled by, or is under common control with, another Person. The Term “control” includes the possession, directly or indirectly, of the power to direct the management and policies of a Person, whether through the ownership of voting securities, by Contract or otherwise.
“Business Day” shall mean any day other than a Saturday, Sunday or day on which national banks located in the United States or Canada are authorized or obligated to close.
“Business Documents” means all of the Company’s rights in, to and under all supplier agreements and any other agreements with the vendor or manufacturer of any equipment or goods used by such Company in the Business, equipment service agreements, leases of equipment that are related to and used by the Company in the Business and all agreements, business licenses (including any licenses held personally) and permits that are related to the Company’s conduct of the Business.
“Customer Contracts” means all of the Company’s rights in, to and under all agreements with the Company’s customers.
“Equipment Indebtedness” means Indebtedness incurred with a specialized leasing company, lender and/or supplier, to finance the acquisition cost of supplies, equipment and other consumables used in the Business, including without limitation, capitalized lease obligations and purchase money security financing, as identified in Schedule 3.8(b).
“Hazardous Materials” includes hazardous waste, hazardous substances, toxic substances and related materials, including all materials and substances regulated by the Comprehensive Environmental Response, Compensation and Liability Act, the Resource Conservation and Recovery Act, the Hazardous Materials Transportation Act, the Toxic Substances Control Act, the Federal Water Pollution Control Act, the Federal Safe Drinking Water Act, the Federal Air Pollution Control Act, the Oil Pollution Act, the Federal Insecticide, Fungicide and Rodenticide Act, the Atomic Energy Act, Occupational Safety and Health Act, each as amended, and any regulations promulgated thereunder or any other applicable federal, state or local environmental law, statute, rule, regulation or ordinance.
“Indebtedness” shall mean as applied to a Person (“such Person”) means, without duplication, (i)(a) all obligations of such Person for borrowed money, (b) all obligations of such Person evidenced by debentures, promissory notes, bonds (other than performance, surety or customs bonds in the ordinary course of business), loan agreements or other similar instruments and (c) all interest-bearing obligations of such Person to the extent not otherwise covered by clauses (a) and (b); (ii) capitalized lease obligations and any synthetic lease obligations of such Person, (iii) all reimbursement obligations of such Person in connection with letters of credit or letter of credit guaranties issued for the account of such Person; and (iv) all obligations of such Person to pay the deferred purchase price of property or services including Purchase Money Indebtedness.
27
“Material Adverse Effect” or “Material Adverse Change” means any effect, event, development, circumstance or change that has been, or would reasonably be expected to be, individually or in the aggregate, materially adverse to the business, assets, financial condition, operations, operating results or any other condition of the Company other than any effect or change to the extent resulting from or relating to: (a) general business or economic conditions (to the extent such effect, event, development, circumstance or change does not affect the Company in a disproportionate manner relative to other participants in the industry in which it operates), (b) national or international political or social conditions, including the engagement by the United States in hostilities, whether or not pursuant to the declaration of a national emergency or war, or the occurrence of any military or terrorist attack upon the United States, or any of its territories, possessions, or diplomatic or consular offices or upon any military installation, equipment or personnel of the United States, (c) financial, banking or securities markets (including any disruption thereof and any decline in the price of any security or any market index) (to the extent such effect, event, development, circumstance or change does not affect the Company in a disproportionate manner relative to other participants in the industry in which it operates), (d) changes in Laws, and (e) the announcement or pendency of the Transaction or the identity of the Buyer or the Buyer Parent, including any impact thereof on relationships, contractual or otherwise, with any customers, suppliers or employees of the Company.
“Organizational Documents” shall mean, for any entity, its constituent or organizational documents, including: (a) in the case of any partnership, trust or other form of business entity, the partnership, or other applicable agreement of formation and any agreement, instrument, filing or notice with respect thereto filed in connection with its formation with the secretary of state or other department in the state of its formation, in each case as amended from time to time; (b) in the case of any limited liability company, the articles or certificate of formation and its operating agreement or limited liability company agreement; and (c) in the case of a corporation, the certificate or articles of incorporation and its bylaws or regulations.
“Permitted Liens” means (i) liens for Taxes not yet due and payable or being contested in good faith by appropriate proceedings and for which there are adequate reserves on the books, (ii) workers or unemployment compensation liens arising in the Ordinary Course of Business not exceeding an amount of $1,000, in the aggregate; (iii) mechanic’s, materialman’s, supplier’s, vendor’s or similar liens arising in the Ordinary Course of Business securing amounts that are not delinquent, not exceeding an amount of $1,000, in the aggregate and (iv) zoning ordinances, recorded easements and other restrictions of legal record affecting the Leased Property or matters which would be revealed by a survey, and that in either case do not, individually or in the aggregate, impair the current use or occupancy of the Leased Real Property or have a Material Adverse Effect on the Company or the Business.
“Person” shall be construed broadly and shall include an individual, a partnership, a corporation, a limited liability company, an association, a joint stock company, a trust, a joint venture, an unincorporated organization, or a Governmental Authority (or any department, agency, or political subdivision thereof).
“Related Documents” means the Non-competition Agreement, the Leases, the Lease Assignments, and all other written agreements, documents and certificates expressly required by this Agreement to be delivered to another Party on the date hereof.
28
“Shareholders’ Knowledge” or “Knowledge of Shareholders” means and includes the actual knowledge and constructive knowledge of Shareholders, which means knowledge that an ordinary person would have exercising prudence of a reasonable manner in the same or similar circumstance, of Shareholders.
[Signature page follows]
29
IN WITNESS WHEREOF, the parties have caused this Purchase Agreement to be executed on as of the date first written above.
Buyer: | PHM LOGISTICS CORPORATION | |
By: | ||
Name: | ||
Title: | ||
Company: | ACADIA MEDICAL SUPPLY, INC. | |
By: | ||
Name: | ||
Title: | ||
Shareholders: | ||
SCOTT A. CLARK | ||
STEPHEN L. CLARK |
[Signature Page – Purchase Agreement]
EXHIBIT A
NONCOMPETITION AGREEMENT
This Noncompetition Agreement (this “Agreement”) is entered into as of December 1, 2019 by and between PHM Logistics Corporation, a Nevada corporation (the “Buyer”) and each of Scott A. Clark and Stephen L. Clark, an individual residing in the State of Maine (each a “Shareholder” and, collectively, the “Shareholders”).
Background
Pursuant to the terms and provisions of that certain Purchase Agreement dated the date hereof (the “Purchase Agreement”) by and among the Buyer, Acadia Medical Supply, Inc., a Maine corporation (“Seller”), and Shareholders, Buyer has acquired from Shareholders all of the issued and outstanding capital stock of the Company. Capitalized terms that are used but not defined herein shall have the respective meanings accorded to such terms in the Purchase Agreement.
As a condition to the consummation of the transactions contemplated by the Purchase Agreement (the “Transaction”), the Company, who will be the sole owner of the Company after the consummation of the Transactions, and Parent are requiring that Shareholder enter into this Agreement.
The undersigned Shareholders, as the owners of all of the outstanding capital stock of the Company prior to the Transaction, each represents and agrees that he will receive substantial benefits from the Transaction and the purchase of the Company Shares by the Buyer. Buyer and the Company intend to operate the business of the Company after the Closing.
Agreement
NOW THEREFORE, for the consideration set forth herein, the receipt and sufficiency of which are acknowledged by the parties, and intending to be legally bound hereby, the Company and each Shareholder agree as follows:
1. Definitions. As used herein:
(a) |
“Confidential Information” shall include, but is not necessarily limited
to, any information relating to the business or affairs of the Company and any of affiliates, which may include, in whole or
part, information concerning the accounts, sales, sales volume, sales methods, sales proposals, Customers (as defined below)
or prospective Customers, prospect lists, manuals, formulae, products, processes, methods, financial information or data,
business and financial strategies, methods or practices, physicians or other parties who refer patients to the Company or any
of its affiliates, physicians or other persons who provide diagnostic services to or on behalf of the Company or any of its
affiliates or the patients or Customers of the Company or any of its affiliates, insurance companies, health care providers
and such health care provider’s insurance companies, pricing data or lists, business plans, financial models,
compositions, ideas, improvements, inventions, research, computer programs, computer related information or data, system
documentation, software products, patented products, copyrighted information, know-how and operating methods and any other
trade secret or proprietary information developed, owned, possessed or used by the Company or any of its affiliates.
“Confidential Information” shall not include information that: (i) is or becomes generally available to
the public other than as a result of a disclosure of such information by Shareholder; or (ii) is or becomes available to
Seller on a non-confidential basis from a source other than the Company, any of its affiliates or their respective
representatives and such source is not bound by a confidentiality agreement with, or other obligation of secrecy to, the
Company or any of its affiliates. Information constituting individually identifiable “protected health
information” as such term is defined in the Health Insurance Portability and Accountability Act of 1996
(“HIPAA”) of patients of Company shall be subject to the use and disclosure in accordance
with the provisions of HIPAA.
|
(b) | “Customer(s)” shall mean any individual, corporation, limited liability company, partnership, business or other entity, whether for-profit or not-for-profit (i) whose existence and business is known to a Shareholder as a result of Shareholder’s access to the Company’s or any of its affiliates’ business information, Confidential Information, Customer lists or Customer account information; (ii) that is a business entity or individual with whom the Company or any of its affiliates has contracted or negotiated during the term of this Agreement; (iii) physicians or other parties who refer patients to the Company or any of its affiliates; (iv) physicians or other persons who provide diagnostic services to or on behalf of the Company or any of its affiliates or patients or Customers; or (v) who is or becomes a prospective client, Customer, patient, supplier or acquisition candidate of the Company or any of its affiliates during the term of this Agreement. |
(c) | “Competing Business” shall mean any individual, corporation, limited liability company, partnership, business or other entity which operates or attempts to operate a business which provides, designs, develops, markets, invests in, produces or sells any products, services, or businesses which are the same or similar to, or otherwise competes with, those produced, provided, marketed, invested in or sold by the Company or any of its affiliates. |
(d) | “Restrictive Period” shall mean the period beginning on the Closing Date and ending on the fifth (5th) anniversary of the Closing Date; provided however, in the event of a default in payment of all or any portion of the Cash Holdback Payments (as defined in the Purchase Agreement), the Restrictive Period will be reduced in proportion to the amount by which the unpaid Cash Holdback Payments bears to the total purchase price of $1,750,000. For example, if the aggregate unpaid Cash Holdback Payments is $100,000, the Restrictive Period will be reduced from 5 years to 4 years and 261 days [5 years x (1,650,000/1,750,000)]. |
(d) | “Territory” shall mean the State of Maine. |
2. | Agreement Not to Compete. In order to protect the business interest and good will of the Company and its affiliates with respect to Customers and accounts, and to protect Confidential Information, each Shareholder covenants and agrees that during Restrictive Period, the Shareholders shall not, directly or indirectly, within the Territory, and whether as an investor (excluding investments representing less than two percent (2.0%) of the common stock of a public company), lender, owner, stockholder, manager, member, officer, director, consultant, employee, agent, salesperson or in any other capacity, whether part-time or full-time: |
2
(a) | cause, induce, solicit or encourage any Customer of the Company or any of its affiliates to purchase, lease, obtain, acquire or license a product or service that is the same as, similar to, or in competition with those products and/or services made, rendered, provided, marketed, offered or under development by the Company or any of its affiliates or otherwise to terminate or adversely modify such Customer’s relationship with the Company or any of its affiliates; |
(b) | cause, solicit, induce or encourage any employees, consultants or contractors (including physicians or other persons who provide diagnostic services to or on behalf of the Company and its affiliates or patients or Customers) of the Company or any of its affiliates to leave such employment or service, or hire, employ or otherwise engage any such individual, or otherwise adversely modify such individual’s employment or service relationship with the Company or any of its affiliates; and |
(c) | Become associated with or in any manner connected to, render any services or aide to, or otherwise engage in any Competing Business in any area where the Company conducts business and/ or operates a facility. Each Shareholder acknowledges and agrees that the geographic, length of term and types of activities restrictions (non-competition restrictions) contained in this Agreement are reasonable and necessary to protect the legitimate business interests of the Company and its affiliates because of the scope of the Company’s business and that Parent and Buyer would not have consummated the Transaction unless Shareholders agreed to the restrictions contained herein. |
If a Shareholder violates the provisions of this Section 2, the periods described herein shall be extended by that number of days which equals the aggregate of all days during which at any time any such violations occurred.
3. | Non-disparagement and Confidentiality. Shareholders will not, at any time during or after the Restrictive Period, disparage the Company or any of its affiliates, the business conducted by the Company prior to or following the consummation of the Transaction, or any equity or debt owner, director, officer, employee or agent of the Company or any of its affiliates. Each Shareholder covenants and agrees not to communicate or divulge to any person, firm, corporation or business entity, either directly or indirectly, or to use for any purpose other than for the benefit of the Company, and to hold in strict confidence for the benefit of the Company, all Confidential Information. Shareholders will not use any Confidential Information for his or her own personal benefit. |
3
4. | Scope of Covenants. Each Shareholder acknowledges that the territorial, time, scope and activity limitations set forth in Section 2 and 3 hereof are reasonable and are properly required for the protection of the Company and its affiliates. If any such territorial, time, scope and/or activity limitation is determined to be unreasonable by a court or other tribunal, the parties agree to the reduction of such territorial, time, scope and/or activity limitations (including the imposition of such a limitation if it is missing) to such an area, period or scope of activity as said court or tribunal shall deem reasonable under the circumstances. Also, if the Company seeks partial enforcement of Section 2 and 3 as to only a time and scope of activity which is reasonable, then the Company shall be entitled to such reasonable partial enforcement. If such reduction or (if the Company seeks partial enforcement) such partial enforcement is not possible, then the unenforceable provision or portion thereof shall be severed as provided in Section 6 hereof. |
5. | Severability. Subject to Section 4, if any provision of this Agreement or portion hereof is determined by a court or other tribunal to be wholly or partially unenforceable in any jurisdiction, then (for purposes of such jurisdiction) such provision or portion hereof shall be struck from the remainder of this Agreement, which shall remain in full force and effect. Without limitation of the foregoing: (1) any one or more of clauses of Section 2 hereof may be so severed from the remainder of this Agreement; and (2) the restricted period shall be construed as if each month therein were listed in a separate clause which may be so severed. |
6. | Equitable Relief; Fees and Expenses. Each Shareholder acknowledges and agrees that any breach of this Agreement by a Shareholder will result in immediate and irreparable harm to the Company and its affiliates, the amount of which will be extremely difficult to ascertain, and that the Company could not be reasonably or adequately compensated by damages in an action at law. For these reasons, the Company and any of its affiliates shall have the right, without objection from Shareholders, to obtain such preliminary, temporary or permanent injunctions or restraining orders or decrees as may be necessary to protect the Company and its affiliates against, or on account of, any breach by a Shareholder of the provisions of this Agreement without the need to post bond. Such right to equitable relief is in addition to all other legal remedies the Company may have to protect its rights. IN ANY ACTION OR PROCEEDING BROUGHT BY A PARTY TO ENFORCE THIS AGREEMENT, THE PREVAILING PARTY SHALL BE ENTITLED TO RECOVER THE COSTS AND EXPENSES INCURRED (INCLUDING, BUT NOT LIMITED TO, LEGAL FEES AND EXPENSES INCURRED BY THE PREVAILING PARTY IN CONNECTION WITH ENFORCING THAT ACTION OR PROCEEDING). Shareholder further covenants and agrees that any order of court or judgment obtained by the Company which enforces the Company’s rights under this Agreement may be transferred, without objection or opposition by a Shareholder, to any court of law or other appropriate law enforcement body located in any other state in the U.S.A. or any other country in the world where Company does business, and that said court or body shall give full force and effect to said order and or judgment. |
4
7. | Dispute Settlement Procedure. Any controversy or claim arising out of or relating to this Agreement, or the actual or alleged breach of it, or arising out of or relating to the rights or duties or obligations of the parties in any capacity respecting any matter that could be asserted in a dispute with respect to this Agreement by way of cross-complaint or counterclaim, shall be subject to binding arbitration under the provisions of this Section 7. Arbitration shall be conducted in Cincinnati, Ohio, in accordance with, and by a neutral arbitrator appointed pursuant to the rules of the American Arbitration Association in effect at the time, and judgment upon the award rendered pursuant thereto may be entered in any court having jurisdiction thereof. Arbitration pursuant to this Agreement shall be a condition precedent to the bringing of any action, suit, or proceeding by any party subject to this Agreement, for any form of relief against a party subject to this Agreement arising out of its subject matter, or performance rendered or not rendered thereunder. The parties hereto hereby acknowledge and agree that the refusal or failure of any party to appear at, or participate in, any hearing or other portion of any arbitration proceeding, pursuant to this paragraph, shall not prevent any such hearing or proceeding from going forward, and the arbitrator is empowered to make a decision, or render an award, or both, ex parte, which shall be binding on such party as fully as though such party had fully participated in such hearing or proceeding. Unless otherwise determined by the arbitrator, each party shall share equally in the expenses and costs of the arbitrator. THE PARTIES UNDERSTAND THAT BY AGREEING TO THIS PARAGRAPH THEY ARE GIVING UP THEIR RIGHT TO RESOLVE DISPUTES ARISING UNDER THIS AGREEMENT BY ACTION IN A COURT OF LAW BEFORE A JUDGE OR JURY, AND ARE INSTEAD AGREEING TO BINDING ARBITRATION AS THE SOLE AND EXCLUSIVE METHOD OF RESOLVING SUCH DISPUTES. Notwithstanding any of the foregoing set forth in this Section 7, claims for emergency or preliminary or permanent injunctive relief can be brought in, and decided by, a state or federal court located in Cincinnati, Ohio. |
8. | Waivers. The failure in any one or more instances of a party to insist upon performance of any of the terms, covenants or conditions of this Agreement, to exercise any right or privilege in this Agreement conferred, or the waiver by said party of any breach of any of the terms, covenants or conditions of this Agreement, shall not be construed as a subsequent waiver of any such terms, covenants, conditions, rights or privileges, but the same shall continue and remain in full force and effect as if no such forbearance or waiver had occurred. No waiver shall be effective unless it is in writing and signed by an authorized representative of the waiving party. A breach of any covenant shall not be affected by the fact that a more general covenant was not also breached. |
9. | Acknowledgements. Each Shareholder hereby acknowledges and agrees that: (a) this Agreement is necessary for the protection of the legitimate business interests of the Company and its affiliates; (b) Shareholder has no intention of competing with the Company or any of its affiliates within the limitations set forth above; (c) Shareholder has received adequate and valuable consideration for entering into this Agreement; (d) Shareholder’s covenants shall be construed as independent of any other provision in this Agreement and the existence of any claim or cause of action Shareholder may have against the Company, whether predicated on this Agreement or not, shall not constitute a defense to the enforcement by Company of these covenants; and (e) the execution and delivery of this Agreement is a mandatory condition precedent to Buyer’ obligations under the Purchase Agreement. |
5
10. | Full Understanding. Each Shareholder acknowledges that before entering into this Agreement, Seller has had the opportunity to consult with any attorney or other advisor of his or her choice, and that this provision constitutes advice from the Company to do so if Shareholder chooses. Each Shareholder further acknowledges that he or she has entered into this Agreement of Shareholder’s own free will, and that no promises or representations have been made to Shareholders by any person to induce Shareholders to enter into this Agreement other than the express terms set forth herein. Each Shareholder further acknowledges that he or she has read this Agreement and understands all of its terms. |
11. | Entire Agreement. This Agreement together with the Purchase Agreement constitutes the entire agreement between the parties with respect to the subject matter contained herein. Any amendments, or alternative or supplementary provisions to this Agreement, must be made in writing and duly executed by an authorized representative or agent of each of the parties hereto, provided that no employee of the Company shall have the authority to alter, orally or in writing, the terms of this Agreement, unless he/she has the prior written consent of the Board of Directors of Parent. |
12. | Other Agreements. Each Shareholder represents and warrants that he or she is not a party to or otherwise subject to or bound by the terms of any contract, agreements or understandings that would affect his or her right or abilities to perform under this Agreement. Shareholder specifically represents that he or she is not subject to any other restrictive covenants or non-competition agreements. |
13. | Choice of Law; Venue. This Agreement shall be governed by and construed under the laws of the Commonwealth of Kentucky as applied to agreements entered into and to be performed entirely within the Commonwealth of Kentucky, notwithstanding any provisions relating to conflict of laws. The parties hereby submit to the jurisdiction of, and waive any venue objections against, the federal and state courts located in Cincinnati, Ohio, in any action or proceeding to obtain emergency or preliminary or permanent injunctive relief. The parties agree that they shall not assert any claim that (i) they are not subject to the jurisdiction of such courts, (ii) the venue is improper, (iii) the forum is inconvenient, or (iv) any similar objection, claim or argument. |
14. | Successor In Interest; Beneficiaries. This Agreement shall be binding upon and shall inure to the benefit of the permitted successors, assigns, heirs and legal representatives of the parties hereto. The Company shall have the right to assign this Agreement in connection with a merger, consolidation or restructuring involving the Company or any of its affiliates, or a sale or transfer of the business and/or any assets of the Company or any of its affiliates, and each Shareholder agrees to be obligated by this Agreement to any successor, assign or surviving entity. Any successor to the Company or any affiliate of the Company (including, but not limited to, Company, Parent and Buyer) is an intended third party beneficiary of this Agreement. Shareholders may not assign this Agreement. |
15. | Notices. Any notice required, permitted, or desired to be given pursuant to any of the provisions of this Agreement shall be deemed to have been sufficiently given or served for all purposes when tele-copied, when delivered by hand or received by registered or certified mail, postage prepaid, or by nationally reorganized overnight courier service addressed to the party to receive such notice at the following address or any other address substituted therefor by notice pursuant to these provisions: |
6
To the Company at: |
PHM Logistics Corporation
1019 Town Drive Wilder, KY 41076 Attn: Hardik Mehta |
|
With a copy by email to: | hmehta@myphm.com | |
With a copy to: |
Katz Teller Brant & Hild
255 E. Fifth Street, Suite 2400 Cincinnati, Ohio 45202 Attn: John R. Gierl, Esq. |
|
With a copy by email to: | jgierl@katzteller.com | |
To Shareholders at: |
Scott A Clark
|
|
With a copy to: |
Solman & Hunter, P.A.
P.O. Box 665 Caribou, Maine 04736 Attn: Richard D. Solman, Esq. |
|
With a copy by email to: | rsolman@solmanhunter.com |
or at such other address as may be given by either of them to the other in writing from time to time.
16. | Counterparts; Telecopy. This Agreement may be executed in counterparts, each of which will be deemed an original, but all of which together will constitute one and the same instrument. Delivery of executed signature pages by facsimile transmission, “pdf” or other electronic means will constitute effective and binding execution and delivery of this Agreement. |
17. | Headings. The headings used in this Agreement are for convenience only and are not to be considered in construing or interpreting this Agreement. |
7
18. | Construction. The parties have jointly participated in the negotiation and drafting of this Agreement. In the event of an ambiguity or if a question of intent or interpretation arises, this Agreement shall be construed as if drafted jointly by the parties and no presumptions or burdens of proof shall arise favoring any party by virtue of the authorship of any of the provisions of this Agreement. For the purposes of this Agreement, “affiliate” shall mean (A) in the case of an individual, (i) the individual’s spouse or descendent (by blood or adoption) of such individual, (ii) the parents and siblings of the individual, (iii) any trust or family partnership whose beneficiaries shall be such individual and/or such individual’s spouse and/or any person related by blood or adoption to such individual or such individual’s spouse and (iv) the estate of such individual, or (B) in the case of an entity, a director or officer of such entity or another entity or a person that directly or indirectly, through one or more intermediaries, controls, or is controlled by, or is under common control with the entity, through the possession, directly or indirectly, of the power to direct the management and policies whether through ownership of voting securities, by contract or otherwise or, directly or indirectly owns ten percent (10%) or more of any class of the stock, membership interests or other ownership interests of such entity. For purposes of this Agreement, Parent, Buyer and their respective affiliates shall be deemed to be affiliates of the Company. |
[Signature Page Follows]
8
IN WITNESS WHEREOF, the parties hereto have executed this Noncompetition Agreement on the date first written above.
Company: | ||
PHM LOGISTICS CORPORATION | ||
By: | ||
Name: | ||
Title: | ||
Shareholders: | ||
SCOTT A. CLARK | ||
STEPHEN L. CLARK |
Exhibit B-1
December 1, 2019
Scott Clark
Via email:
Dear Scott:
We are pleased to confirm our offer to you for the position of Business Unit Leader of Acadia Medical Inc. (AMI), a Protech Home Medical (“PHM”) company. You will be reporting to the Vice President of Operations, Jerry Kirn.
As a Business Unit Leader, your compensation and benefit package is outlined on Exhibit 2. In addition, your job description is outlined in Appendix A.
This offer is contingent upon certain terms described in the enclosed “ACKNOWLEDGMENT – TERMS OF EMPLOYMENT,” which you need to sign and return to me, as well as on the successful completion of a background screening.
We are looking forward to you joining our organization. Sincerely,
Kimberly Childers
HR Manager
Please signify your acceptance of this offer letter:
Signature | Date |
[Signature Page – Noncompetition Agreement]
ACKNOWLEDGM ENT
TERM S OF EM PLOYMENT
Instructions: please read the contents of this ACKNOWLEDGMENT carefully. Your offer of employment is contingent upon your acceptance of the terms of employment described below. If you accept these terms, please sign in the space provided at the bottom of this form, and return with your offer letter.
1. | I acknowledge that the statement of an annual salary in the offer letter is for convenience of computation only and does not imply a guarantee of employment for any specific period, and that all employment with PHM is at will. |
2. | I agree that m y employment with PHM is conditioned upon my agreement to be bound by the terms and conditions relating to non-competition and non-solicitation activities as set forth on Exhibit 3, which is attached hereto. |
3. | Notwithstanding the foregoing, if your employment is terminated within the first twelve (12) months (the “First Year”) without cause, you will continue to be paid your annual salary for the remainder of the First Year, subject to normal and customary withholdings. |
I accept the terms of employment described above:
Signature: | Date: |
1
Exhibit 2
BUSINESS UNIT LEADER COMPENS ATION P ACK AGE
Annual Salary:
You will have an annual salary of $75,000.00 paid in biweekly installments.
Bonus Structure: Up to 20% of the base Annual Salary. Specific are Currently being developed.
Benefits:
You will be eligible to enroll in standard company benefits including:
- Health Insurance (PHM pays for the first $250 of your policy)
- Dental/Vision Insurance (employee is responsible for 100% of the cost)
You will be eligible to enroll in the PHM 401K plan. Enrollment will be during the next available open enrollment.
PTO will be accrued as follows:
Employee accrues 3.07 hours per week totaling 160 hours over 52 weeks.
In addition, you will receive 4 sick days during calendar year.
2
Exhibit 3
NON-COMPETITION
You acknowledge that PHM has invested substantial money and resources in establishing relationships with its Clients (as defined below). You further acknowledge that the restrictions contained in this Exhibit 3 regarding the non-solicitation of employees and Clients are reasonable and necessary to protect PHM from unfair competition that PHM has a protectable property interest in its Clients and that such restrictions will not deprive you of the ability to earn a living. Accordingly, during the Restricted Period (as defined below), you shall not as an individual, owner, proprietor, partner, joint venture, shareholder, independent contractor, consultant, agent, director, officer, employee, beneficiary or in any other capacity whatsoever, either directly or indirectly: (i) engage in any commercial activity that competes with the Covered Services (as defined below) of PHM, as defined below, within the Restricted Area; (ii) enter the employ of, or render any other services to, any person whose business is in direct competition with PHM, or which involves working for a division within a larger company, which division is a direct competitor of PHM; or (iii) become interested in any person referred to in the foregoing clauses (i) and (ii) in any capacity (other than as a passive equity owner not to exceed 1%).
The following terms as used in this Exhibit shall have the meanings described below:
“Restricted Area” means the State of Maine.
"Restricted Period" means the term of your employment with PHM and a period of two (2) years following termination of your employment with PHM for any reason whatsoever.
"Covered Services" means any services of whatever kind or character offered or provided by PHM
to Clients during the term of your employment.
"Client" means any physician, physician practice and/or coagulation clinic: (A) for which PHM performed any Covered Services during one (1) year preceding the termination of your employment or with whom either you or any other person under your supervision or working in coordination with you has contact for the purpose of proposing or providing Covered Services, or (B) for whom either you or any other person under your supervision or working in coordination with you made a new business contact, presentation or proposal during the twelve (12) months preceding the termination of your employment.
NON-SOLICITATION
You agree that during your employment and for a period of two (2) years after the date of termination of your employment for any reason, you shall not, either directly or indirectly, (i) solicit the services, or attempt to solicit the services, of any employee of PHM to be employed by or to perform services on behalf of any other person or entity or (ii) solicit or attempt to solicit any Client in order to provide any Covered Services to such Client.
Signature: | Date: |
3
Appendix A
The Business Unit Leader is responsible for the planning, organizing, directing and controlling the day-to-day operations. The BUL is expected to collaborate and develop the long-term growth strategy for the business unit and the business team. The BUL works under the directive of the VP of Operations.
ESSENTIAL DUTIES AND RESPONSIBILITIES
· | Evaluate and manage operations with a focus on implementing process changes to maximize patient care, referral satisfaction and cash generation. |
· | Conduct routine staff meetings to review performance, monitor and improve corporation initiatives. |
· | Manages all department supervisors and managers for AMI locations. |
· | Stay current on insurance requirements, reimbursement and legislative issues that may affect the performance of the business unit. |
· | Manage order intake process and staff in order to minimize paperwork, order processing time, authorization signatures, and other necessary documentation, such that the process is highly efficient, patients are well served and billing is successfully completed. |
· | Actively participate in the growth strategy of the business. |
· | Utilize referral as well as community interaction experience and data to assist with long-term strategic planning for growth and development needed for long-term business success. |
· | Establish and improve processes to make customer satisfaction a top priority of the Business Unit. |
· | Effectively direct and implements priorities to achieve sales and service goals. |
· | Advise leadership on financial obligations, potential risk and opportunity. To lead formulation, negotiation and execution of all contracts and vendor agreements. |
· | Track budget and expenditures to include financial oversight of the business unit. |
· | Assist in the integration of product into the total patient experience. |
· | Responsible and accountable for compliance with Joint Commission standards and requirements. |
· | Travel: BUL will travel to each physical location within the AMI territory a minimum of every 90 calendar days. Routine conference calls are expected to maintain communication with branch managers and provide operational support. |
· | BUL is responsible for providing formal and consistent feedback both written and verbal communication to the VP of Operations and CEO on the state of each AMI locations. |
Other Duties
Please note this job description is not designed to cover or contain a comprehensive listing of activities, duties or responsibilities that are required of the employee for this job. Duties, responsibilities and activities may change at any time with or without notice.
Signature: | Date: |
Exhibit B-2
EMPLOYMENT AGREEMENT
December 1, 2019
Stephen Clark
Via email:
Dear Steve:
We are pleased to confirm our offer to you for the position of ATP of Acadia Medical Inc. (AMI), a Protech Home Medical (“PHM”) company. You will be reporting to the Vice President of Operations, Jerry Kirn.
As an ATP, your compensation and benefit package is outlined on Exhibit 2. In addition, your job description is outlined in Appendix A.
This offer is contingent upon certain terms described in the enclosed “ACKNOWLEDGMENT – TERMS OF EMPLOYMENT,” which you need to sign and return to me, as well as on the successful completion of a background screening.
We are looking forward to you joining our organization. Sincerely,
Kimberly Childers
HR Manager
Please signify your acceptance of this offer letter:
Signature | Date |
5
ACKNOWLEDGM ENT
TERM S OF EM PLOYMENT
Instructions: please read the contents of this ACKNOWLEDGMENT carefully. Your offer of employment is contingent upon your acceptance of the terms of employment described below. If you accept these terms, please sign in the space provided at the bottom of this form, and return with your offer letter.
4. | I acknowledge that the statement of an annual salary in the offer letter is for convenience of computation only and does not imply a guarantee of employment for any specific period, and that all employment with PHM is at will. |
5. | I agree that m y employment with PHM is conditioned upon my agreement to be bound by the terms and conditions relating to non-competition and non-solicitation activities as set forth on Exhibit 3, which is attached hereto. |
6. | Notwithstanding the foregoing, if your employment is terminated within the first twelve (12) months (the “First Year”) without cause, you will continue to be paid your annual salary for the remainder of the First Year, subject to normal and customary withholdings. |
I accept the terms of employment described above:
Signature: | Date: |
1
Exhibit 2
ATP COMPENS ATION P ACK AGE
Annual Salary:
You will have an annual salary of $50,000.00 paid in biweekly installments.
Bonus Structure: Up to 20% of the base Annual Salary. Specific are Currently being developed.
Benefits:
You will be eligible to enroll in standard company benefits including:
- Health Insurance (PHM pays for the first $250 of your policy)
- Dental/Vision Insurance (employee is responsible for 100% of the cost)
You will be eligible to enroll in the PHM 401K plan. Enrollment will be during the next available open enrollment.
PTO will be accrued as follows:
Employee accrues 3.07 hours per week totaling 160 hours over 52 weeks.
In addition, you will receive 4 sick days during calendar year.
2
Exhibit 3
NON-COMPETITION
You acknowledge that PHM has invested substantial money and resources in establishing relationships with its Clients (as defined below). You further acknowledge that the restrictions contained in this Exhibit 3 regarding the non-solicitation of employees and Clients are reasonable and necessary to protect PHM from unfair competition that PHM has a protectable property interest in its Clients and that such restrictions will not deprive you of the ability to earn a living. Accordingly, during the Restricted Period (as defined below), you shall not as an individual, owner, proprietor, partner, joint venture, shareholder, independent contractor, consultant, agent, director, officer, employee, beneficiary or in any other capacity whatsoever, either directly or indirectly: (i) engage in any commercial activity that competes with the Covered Services (as defined below) of PHM, as defined below, within the Restricted Area; (ii) enter the employ of, or render any other services to, any person whose business is in direct competition with PHM, or which involves working for a division within a larger company, which division is a direct competitor of PHM; or (iii) become interested in any person referred to in the foregoing clauses (i) and (ii) in any capacity (other than as a passive equity owner not to exceed 1%).
The following terms as used in this Exhibit shall have the meanings described below:
“Restricted Area” means the State of Maine.
"Restricted Period" means the term of your employment with PHM and a period of two (2) years following termination of your employment with PHM for any reason whatsoever.
"Covered Services" means any services of whatever kind or character offered or provided by PHM
to Clients during the term of your employment.
"Client" means any physician, physician practice and/or coagulation clinic: (A) for which PHM performed any Covered Services during one (1) year preceding the termination of your employment or with whom either you or any other person under your supervision or working in coordination with you has contact for the purpose of proposing or providing Covered Services, or (B) for whom either you or any other person under your supervision or working in coordination with you made a new business contact, presentation or proposal during the twelve (12) months preceding the termination of your employment.
NON-SOLICITATION
You agree that during your employment and for a period of two (2) years after the date of termination of your employment for any reason, you shall not, either directly or indirectly, (i) solicit the services, or attempt to solicit the services, of any employee of PHM to be employed by or to perform services on behalf of any other person or entity or (ii) solicit or attempt to solicit any Client in order to provide any Covered Services to such Client.
Signature: | Date: |
3
Appendix A
The ATP’s main function is to successfully follow the Protech Home Medical LNC process for securing New Referrals and maintaining existing referral sources. To perform well in this role, the ATP must be effective at networking for power mobility, manual chairs and related accessories. They must also be able to problem solve qualifying prospects with standard probes: committing time and effort to ensure success; close through logical, incremental steps; and be opportunistic to best size opportunities. ATP works under the directive of VP of Rehab
ESSENTIAL DUTIES AND RESPONSIBILITIES
1 . Market accounts as assigned
2 . Monitors market trends for assisting and identifying new services provided by Patient Aids, Inc.
3 . Follow the Patient Aids, Inc. process to secure new business for the company:
a. Get patient referrals from affiliated and unaffiliated care facilities
b. Call patients, and/or caregivers, arranging an interview
c. At the interview, determine patient needs and secure a product order
d. Obtain all necessary medical documentation for ordering and reimbursing
e. P lace the patient order through Patient Aids, Inc. using the appropriate systems
f. With or without a delivery tech, get the product to the patient, providing usage instructions
g. Contact the referral the day after the de livery, confirming satisfaction and asking for referrals.
h. Turn patient account order over to a customer service representative for ongoing assessments.
4 . Completes patient/client accounts paperwork, Plan of Care/Treatment and assessments.
5 . Acts as a liaison between the company and the patient/client, family, caregiver, Physician, and other healthcare agencies and staff on the case
6 . The Employee is to understand consumer goals and objectives and offer product choices, including customer and commercially available option with discussion and availability and cost effectiveness
7 . Conducts, participates and attends educational meetings and seminars for healthcare workers, patients/clients, families, caregivers physician, and interested community members on areas of need
8 . Assumes full responsibility for their own actions, professional skills, and attitudes
9 . Supports the organization by being loyal and informing management of areas of concern and problems to be resolved
10 . Keeps cognizant of third-party reimbursement criteria services, and equipment offered, billing, and patient/client paperwork
11 . Markets the company in a positive and professional manner at all times
12 . Maybe responsible for working and leading the staff 1Saturday per month and filling in other position during staff shortages
13 . Assist in repairing and troubleshooting equipment when needed
14 . Demonstrates timelines, courtesy, sincerity and patience with dealing with the patients/clients, and employees.
Other Duties
Please note this job description is not designed to cover or contain a comprehensive listing of activities, duties or responsibilities that are required of the employee for this job. Duties, responsibilities and activities may change at any time with or without notice.
Signature: | Date: |
2
Exhibit 99.6
PROTECH ANNOUNCES Accretive Acquisition of Acadia Medical, Inc. AS THE
COMPANY NEARS $100 MILLION OF RUN RATE REVENUE
NOT FOR DISSEMINATION IN THE UNITED STATES OR FOR DISTRIBUTION TO U.S. NEWSWIRE
SERVICES AND DOES NOT CONSTITUTE AN OFFER OF THE SECURITIES DESCRIBED HEREIN.
Cincinnati, Ohio – December 4, 2019 – Protech Home Medical Corp. (“Protech” or the “Company”) (TSXV: PTQ), a healthcare services company with operations in the U.S., is pleased to announce that it has acquired Acadia Medical, Inc. (“AMI”), a company based in Maine.
Acquisition Details
AMI is a leader and top provider of respiratory services in the State of Maine. It currently has four locations and will allow Protech to further expand its geographical footprint and provide a larger number of services in the State of Maine. Protech will acquire AMI for total cash consideration of approximately $2.1 million and the assumption of approximately $0.2 million of debt.
After an initial transition and integration period, AMI is expected to increase Protech’s annual revenues by approximately $4 million and increase Adjusted EBITDA by approximately $0.8 million. When combined with the Company’s existing operations, Protech expects its annualized run-rate revenue to be between $99 and $103 million and annualized Adjusted EBITDA to be between $18.2 and $20.2 million.
“We are extremely thrilled to announce this acquisition that will in all likelihood put us in the vicinity of achieving an annual revenue run rate in excess of $100 million. The acquisition of AMI is another example of the types of strategic acquisitions we're going to continue to pursue,” said Greg Crawford, Chairman and CEO of Protech. “The acquisition is immediately accretive, increasing revenue and EBITDA as we use our regional expertise and infrastructure to achieve revenue and profit growth through our integration platform. These types of acquisitions are an effective way to increase market penetration in our existing markets for marginal incremental cost and will continue to be one of our core strategies to continue to augment our growth. We are particularly excited about AMI’s product mix which is largely focused on the respiratory market, with which we have a particular affinity given its extremely positive market fundamentals.”
M&A Pipeline Update
As previously announced, Protech is focused on the implementation of its corporate strategy that incorporates technology, organic growth and strategic acquisitions to continue to improve upon its financial results. Following the closing of the AMI acquisition, the Company now has more than $8 million in cash to continue to pursue additional acquisitions that will focus on strategic and geographic locations driven by product mix, distribution volumes and the ability to consolidate distribution channels to drive operating efficiencies and maximize earnings accretion.
“We continue to build our pipeline of qualified acquisition targets,” said Hardik Mehta, CFO of Protech. “With many high-quality acquisition targets to choose from, we will continue to be extremely disciplined in terms of those acquisitions we pursue with particular focus on those where we can achieve favorable pricing and optimal accretion.”
ABOUT PROTECH HOME MEDICAL CORP.
The Company provides in-home monitoring and disease management services for patients in the United States healthcare market. The primary business objective of the Company is to create shareholder value by offering a broader range of services to patients in need of in-home monitoring and chronic disease management. The Company’s organic growth strategy is to increase annual revenue per patient by offering multiple services to the same patient, consolidating the patient’s services and making life easier for the patient.
Non-GAAP Measures
This press release refers to “Adjusted EBITDA” which is a non-GAAP and non-IFRS financial measure that does not have a standardized meaning prescribed by GAAP or IFRS. The Company’s presentation of this financial measure may not be comparable to similarly titled measures used by other companies. This financial measure is intended to provide additional information to investors concerning the Company’s performance. Adjusted EBITDA is defined as EBITDA excluding stock based compensation and gains/losses on financial derivatives. Adjusted EBITDA is a Non-IFRS measure the Company uses as an indicator of financial health and excludes several items which may be useful in the consideration of the financial condition of the Company, including interest expense, taxes, depreciation, amortization, stock-based compensation, good will impairment and gain/losses on financial derivatives.
Forward-Looking Statements
Certain statements contained in this press release constitute "forward-looking information" as such term is defined in applicable Canadian securities legislation. The words "may", "would", "could", "should", "potential", "will", "seek", "intend", "plan", "anticipate", "believe", "estimate", "expect" and similar expressions as they relate to the Company, including: Protech’s annual revenues increasing by approximately $4 million and Adjusted EBITDA increasing by approximately $0.8 million; Protech’s annualized run-rate revenue increasing to be between $99 and $103 million and annualized Adjusted EBITDA increasing to be between $18.2 and $20.2 million; the Company successfully completing acquisitions and the results of such acquisitions, are intended to identify forward-looking information. All statements other than statements of historical fact may be forward-looking information. Such statements reflect the Company's current views and intentions with respect to future events, and current information available to the Company, and are subject to certain risks, uncertainties and assumptions, including, without limitation: the Company’s ability to maintain/slightly increase its collections ratios; the Company maintaining its gross margins and maintaining its revenue growth; the Company maintaining its selling, general and administrative expenses; the Company identifying, negotiating and closing one or more acquisitions; and the historical performance of such acquisitions being maintained subsequent to closing. Many factors could cause the actual results, performance or achievements that may be expressed or implied by such forward-looking information to vary from those described herein should one or more of these risks or uncertainties materialize. Examples of such risk factors include, without limitation: credit; market (including equity, commodity, foreign exchange and interest rate); liquidity; operational (including technology and infrastructure); reputational; insurance; strategic; regulatory; legal; environmental; capital adequacy; the general business and economic conditions in the regions in which the Company operates; the ability of the Company to execute on key priorities, including the successful completion of acquisitions, business retention, and strategic plans and to attract, develop and retain key executives; difficulty integrating newly acquired businesses; the ability to implement business strategies and pursue business opportunities; low profit market segments; disruptions in or attacks (including cyber-attacks) on the Company's information technology, internet, network access or other voice or data communications systems or services; the evolution of various types of fraud or other criminal behavior to which the Company is exposed; the failure of third parties to comply with their obligations to the Company or its affiliates; the impact of new and changes to, or application of, current laws and regulations; decline of reimbursement rates; dependence on few payors; possible new drug discoveries; a novel business model; dependence on key suppliers; granting of permits and licenses in a highly regulated business; the overall difficult litigation environment, including in the U.S.; increased competition; changes in foreign currency rates; increased funding costs and market volatility due to market illiquidity and competition for funding; the availability of funds and resources to pursue operations; critical accounting estimates and changes to accounting standards, policies, and methods used by the Company; and the occurrence of natural and unnatural catastrophic events and claims resulting from such events; as well as those risk factors discussed or referred to in the Company’s disclosure documents filed with the securities regulatory authorities in certain provinces of Canada and available at www.sedar.com. Should any factor affect the Company in an unexpected manner, or should assumptions underlying the forward-looking information prove incorrect, the actual results or events may differ materially from the results or events predicted. Any such forward-looking information is expressly qualified in its entirety by this cautionary statement. Moreover, the Company does not assume responsibility for the accuracy or completeness of such forward-looking information. The forward-looking information included in this press release is made as of the date of this press release and the Company undertakes no obligation to publicly update or revise any forward-looking information, other than as required by applicable law.
Neither the TSX Venture Exchange nor its Regulation Services Provider (as that term is defined in the policies of the TSX Venture Exchange) accepts responsibility for the adequacy or accuracy of this release. All amounts in Canadian Dollars unless otherwise stated.
For further information please visit our website at www.protechhomemedical.com, or contact:
Gregory Crawford
Chief Executive Officer
Protech Home Medical Corp.
859-300-6455
investorinfo@myphm.com
Investor Relations:
Oak Hill Financial Inc.
Jonathan L. Robinson CFA
416-669-1001
jrobinson@oakhillfinancial.ca
Exhibit 99.7
PROTECH HOME MEDICAL CORP.
NOTICE OF ANNUAL GENERAL MEETING OF SHAREHOLDERS
NOTICE IS HEREBY GIVEN that the Annual General Meeting (the “Meeting”) of shareholders (the “Shareholders”) of Protech Home Medical Corp. (the “Corporation”) will be held at the DoubleTree Suites by Hilton Hotel Naples, 12200 Tamiami Trail North, Naples, Florida 34110 on Wednesday, the 5th day of February, 2020, at the hour of 11:00 a.m. (EST) for the following purposes:
1. | to receive the audited financial statements of the Corporation for the years ended September 30, 2019 and 2018 and the auditors’ report thereon; |
2. | to elect directors for the ensuing year; |
3. | to appoint auditors of the Corporation for the ensuing year and authorize the directors to fix their remuneration; and |
4. | to transact such further or other business as may properly come before the said meeting or any adjournment or adjournments thereof. |
This Notice of Meeting is accompanied by the Information Circular and either a form of proxy for registered shareholders or a voting instruction form for beneficial shareholders (collectively the “Meeting Materials”). A copy of the audited financial statements of the Corporation for the years ended September 30, 2019 and 2018, and the auditors’ report thereon, and accompanying management discussion and analysis, will be available for review at the Meeting and are available to the public on the SEDAR website at www.sedar.com.
The record date for the determination of shareholders entitled to receive notice of and to vote at the Meeting is December 24, 2019 (the “Record Date”). Shareholders of the Corporation whose names have been entered on the register of shareholders at the close of business on the Record Date will be entitled to receive notice of and to vote at the Meeting.
A shareholder may attend the Meeting in person or may be represented by proxy. Shareholders who are unable to attend the Meeting or any adjournment thereof in person are requested to date, sign and return the accompanying form of proxy for use at the Meeting or any adjournment thereof. To be effective, the enclosed proxy must be mailed so as to reach or be deposited with Computershare Investor Services Inc., 100 University Avenue, 8th floor, Toronto, Ontario, M5J 2Y1, facsimile: (416) 263-9524, not later than forty-eight (48) hours (excluding Saturdays, Sundays and holidays) prior to the time set for the Meeting or any adjournment thereof.
As described in the notice and access notification mailed to shareholders of the Corporation, the Corporation will deliver the applicable Meeting Materials to shareholders by posting the Meeting Materials online under the Corporation’s profile at www.sedar.com and at http://phminvestorrelations.com/documents/investorrelation/circulars/2019.pdf, where they will remain for at least one full year thereafter. The use of this alternative means of delivery is more environmentally friendly as it will help reduce paper use and it will also significantly reduce the Corporation’s printing and mailing costs.
All shareholders will receive a notice and access notification, together with a proxy or voting instruction form, as applicable, which will contain information on how to obtain electronic and paper copies of the Meeting Materials in advance of the Meeting.
DATED this 24th day of December, 2019.
BY ORDER OF THE BOARD
(signed) “Gregory Crawford”
Chairman of the Board of Directors
Exhibit 99.8
Annual General Meeting of Shareholders
to be held on February 5, 2020
NOTICE OF MEETING
AND
MANAGEMENT INFORMATION CIRCULAR
PROTECH HOME MEDICAL CORP.
NOTICE OF ANNUAL GENERAL MEETING OF SHAREHOLDERS
NOTICE IS HEREBY GIVEN that the Annual General Meeting (the “Meeting”) of shareholders (the “Shareholders”) of Protech Home Medical Corp. (the “Corporation”) will be held at the DoubleTree Suites by Hilton Hotel Naples, 12200 Tamiami Trail North, Naples, Florida 34110 on Wednesday, the 5th day of February, 2020, at the hour of 11:00 a.m. (EST) for the following purposes:
1. | to receive the audited financial statements of the Corporation for the years ended September 30, 2019 and 2018 and the auditors’ report thereon; |
2. | to elect directors for the ensuing year; |
3. | to appoint auditors of the Corporation for the ensuing year and authorize the directors to fix their remuneration; and |
4. | to transact such further or other business as may properly come before the said meeting or any adjournment or adjournments thereof. |
This Notice of Meeting is accompanied by the Information Circular and either a form of proxy for registered shareholders or a voting instruction form for beneficial shareholders (collectively the “Meeting Materials”). A copy of the audited financial statements of the Corporation for the years ended September 30, 2019 and 2018, and the auditors’ report thereon, and accompanying management discussion and analysis, will be available for review at the Meeting and are available to the public on the SEDAR website at www.sedar.com.
The record date for the determination of shareholders entitled to receive notice of and to vote at the Meeting is December 24,
2019 (the “Record Date”). Shareholders of the Corporation whose names have been entered on the register of shareholders at the close of business on the Record Date will be entitled to receive notice of and to vote at the Meeting.
A shareholder may attend the Meeting in person or may be represented by proxy. Shareholders who are unable to attend the Meeting or any adjournment thereof in person are requested to date, sign and return the accompanying form of proxy for use at the Meeting or any adjournment thereof. To be effective, the enclosed proxy must be mailed so as to reach or be deposited with Computershare Investor Services Inc., 100 University Avenue, 8th floor, Toronto, Ontario, M5J 2Y1, facsimile: (416) 263-9524, not later than forty-eight (48) hours (excluding Saturdays, Sundays and holidays) prior to the time set for the Meeting or any adjournment thereof.
As described in the notice and access notification mailed to shareholders of the Corporation, the Corporation will deliver the applicable Meeting Materials to shareholders by posting the Meeting Materials online under the Corporation’s profile at www.sedar.com and at http://phminvestorrelations.com/documents/investorrelation/circulars/2019.pdf, where they will remain for at least one full year thereafter. The use of this alternative means of delivery is more environmentally friendly as it will help reduce paper use and it will also significantly reduce the Corporation’s printing and mailing costs.
All shareholders will receive a notice and access notification, together with a proxy or voting instruction form, as applicable, which will contain information on how to obtain electronic and paper copies of the Meeting Materials in advance of the Meeting.
DATED this 24th day of December, 2019.
BY ORDER OF THE BOARD
(signed) “Gregory Crawford”
Chairman of the Board of Directors
INFORMATION CIRCULAR
FOR THE ANNUAL GENERAL MEETING OF SHAREHOLDERS OF
PROTECH HOME MEDICAL CORP.
(this information is given as of December 24, 2019)
1. SOLICITATION OF PROXIES
This management information circular (the “Circular”) and accompanying form of proxy are furnished in connection with the solicitation, by management of Protech Home Medical Corp. (the “Corporation”), of proxies to be used at the annual general meeting of the holders (the “Shareholders”) of common shares (“Common Shares”) of the Corporation (the “Meeting”) referred to in the accompanying Notice of Annual General Meeting (the “Notice”) to be held on February
5, 2020, at the time and place and for the purposes set forth in the Notice. The solicitation will be made primarily by mail, subject to the use of Notice-and-Access Provisions (as defined below) in relation to delivery of the meeting materials, but proxies may also be solicited personally or by telephone by directors and/or officers of the Corporation, or by the Corporation’s transfer agent, Computershare Investor Services Inc. (“Computershare”), at nominal cost. The cost of solicitation by management will be borne by the Corporation. Pursuant to National Instrument 54-101 – Communication with Beneficial Owners of Securities of a Reporting Issuer (“NI 54-101”), arrangements have been made with clearing agencies, brokerage houses and other financial intermediaries to forward proxy solicitation material to the beneficial owners of the Common Shares. The cost of any such solicitation will be borne by the Corporation.
2. NOTICE-AND-ACCESS
The Corporation is sending out proxy-related materials to Shareholders using the notice-and-access provisions under National Instrument 51-102 – Continuous Disclosure Obligations (“NI 51-102”) and NI 54-101 (the “Notice-and-Access Provisions”).
The Corporation anticipates that use of the Notice-and-Access Provisions will benefit the Corporation by reducing the postage and material costs associated with the printing and mailing of the proxy-related materials and will additionally reduce the environmental impact of such actions.
Shareholders will be provided with electronic access to the Notice and this Circular on the System for Electronic Document
Analysis and Retrieval (“SEDAR”) at www.sedar.com and at http://phminvestorrelations.com/documents/investorrelation/circulars/2019.pdf.
Shareholders are reminded to review the Circular before voting. Shareholders will receive paper copies of a notice package (the “Notice Package”) via pre-paid mail containing a notice with information prescribed by the Notice-and-Access Provisions and a form of proxy (if you are a registered Shareholder) or a voting instruction form (if you are a non-registered Shareholder). The
Corporation will not use procedures known as ‘stratification’ in relation to the use of Notice-and-Access Provisions. Stratification occurs when an issuer using Notice-and-Access Provisions sends a paper copy of the Circular to some securityholders with a Notice Package.
Shareholders with questions about notice-and-access can call Computershare toll-free at 1-866-964-0492 (Canada and the U.S. only) or direct at (514) 982-8714 (outside Canada and the U.S. and entering your 15-digit control number as indicated on your voting instruction form or proxy). Shareholders may obtain paper copies of the Circular free of charge by calling 1-866-466-5355 at any time up until and including the date of the Meeting, including any adjournment or postponement thereof. Any Shareholder wishing to obtain a paper copy of the meeting materials should submit their request no later than 12:00 p.m. (EST) on January 31, 2020 in order to receive paper copies of the meeting materials in time to vote before the Meeting. Under the Notice-and-Access
Provisions, meeting materials will be available for viewing on the Corporation’s website for one year from the date of posting.
3. RECORD DATE
Shareholders of record at the close of business on December 24, 2019 are entitled to receive notice of and attend the Meeting in person or by proxy and are entitled to one vote for each Common Share registered in the name of such Shareholder in respect of each matter to be voted upon at the Meeting.
4. APPOINTMENT OF PROXIES
The persons named in the enclosed form of proxy are directors and/or officers of the Corporation. Each Shareholder submitting a proxy has the right to appoint a person or company (who need not be a Shareholder), other than the persons named in the enclosed form of proxy, to represent such Shareholder at the Meeting or any adjournment or postponement thereof. Such right may be exercised by inserting the name of such representative in the blank space provided in the enclosed form of proxy. All proxies must be executed by the Shareholder or his or her attorney duly authorized in writing or, if the Shareholder is a corporation, by an officer or attorney thereof duly authorized.
- 1 -
A proxy will not be valid for the Meeting or any adjournment or postponement thereof unless it is completed and delivered to Computershare no later than 11:00 a.m. (EST) on February 3, 2020 (or, if the Meeting is adjourned or postponed, 48 hours (Saturdays, Sundays and holidays excepted) prior to the time of holding the Meeting) in accordance with the delivery instructions below or delivered to the chairman (the “Chairman”) of the board of directors of the Corporation on the day of the Meeting, prior to the commencement of the Meeting or any adjournment or postponement thereof. The time limit for deposit of proxies may be waived or extended by the Chairman of the Meeting at his discretion, without notice.
A registered Shareholder may submit his/her/its proxy by mail, by telephone or over the internet in accordance with the instructions below. A non-registered Shareholder should follow the instructions included on the voting instruction form provided by his or her Intermediary (as defined below).
Voting Instructions for Registered Holders
A registered Shareholder may submit a proxy by (i) mailing a copy to Computershare Investor Services Inc., Attention: Proxy Department, 8th Floor, 100 University Avenue, Toronto, Ontario M5J 2Y1, (ii) telephone by entering the 15 digit control number at 1-866-732-8683 (Canada and the U.S. only) or (312) 588-4290 (outside Canada and the U.S.), or (iii) online by entering the 15 digit control number at www.investorvote.com.
5. REVOCATION OF PROXIES
Proxies given by Shareholders for use at the Meeting may be revoked at any time prior to their use. Subject to compliance with the requirements described in the following paragraph, the giving of a proxy will not affect the right of a Shareholder to attend, and vote in person at, the Meeting.
In addition to revocation in any other manner permitted by law, a proxy may be revoked by instrument in writing executed by the Shareholder or his/her attorney duly authorized in writing, or, if the Shareholder is a corporation, under its corporate seal by an officer or attorney thereof duly authorized and deposited with Computershare, in a manner provided above under “Proxy and
Voting Information – Appointment of Proxies”, at any time up to and including 11:00 a.m. (EST) on February 3, 2020 (or, if the Meeting is adjourned or postponed, 48 hours (Saturdays, Sundays and holidays excepted) prior to the holding of the Meeting) or, with the Chairman at the Meeting on the day of such meeting or any adjournment or postponement thereof, and upon any such deposit, the proxy is revoked.
6. NON-REGISTERED HOLDERS
Only registered Shareholders, or the persons they appoint as their proxies, are permitted to attend and vote at the Meeting. However, in many cases, Common Shares beneficially owned by a non-registered Shareholder (a “Non-Registered Holder”) are registered either (i) in the name of an intermediary (each, an “Intermediary” and collectively, the “Intermediaries”) that the
Non-Registered Holder deals with in respect of the Common Shares, such as, among others, banks, trust companies, securities dealers or brokers and trustees or administrators of self-administered registered savings plans, registered retirement income funds, registered education savings plans and similar plans, or (ii) in the name of a clearing agency (such as CDS Clearing and Depository Services Inc.) of which the Intermediary is a participant.
In accordance with the requirements of NI 54-101, the Corporation has distributed copies of the form of proxy and supplemental mailing card (collectively, the “Meeting Materials”) to the clearing agencies and Intermediaries for onward distribution to Non-Registered Holders.
Intermediaries are required to forward the Meeting Materials to Non-Registered Holders unless a Non-Registered Holder has waived the right to receive them. Intermediaries will generally use service companies (such as Broadridge Financial Solutions, Inc.) to forward the Meeting Materials to Non-Registered Holders. Generally, a Non-Registered Holder who has not waived the right to receive Meeting Materials will receive either a voting instruction form or, less frequently, a form of proxy. The purpose of these forms is to permit Non-Registered Holders to direct the voting of the Common Shares they beneficially own. Non-Registered Holders should follow the procedures set out below, depending on the type of form they receive:
(1) | Voting Instruction Form. In most cases, a Non-Registered Holder will receive, as part of the Meeting Materials, a voting instruction form. If the Non-Registered Holder does not wish to attend and vote at the Meeting in person (or have another person attend and vote on the Non- Registered Holder’s behalf), but wishes to direct the voting of the Common Shares they beneficially own, the voting instruction form must be submitted by mail, telephone or over the internet in accordance with the directions on the form. If a Non-Registered Holder wishes to attend and vote at the Meeting in person (or have another person attend and vote on the Non-Registered Holder’s behalf), the Non-Registered Holder must complete, sign and return the voting instruction form in accordance with the directions provided and a form of proxy giving the right to attend and vote will be forwarded to the Non-Registered Holder; or |
- 2 -
(2) | Form of Proxy. Less frequently, a Non-Registered Holder will receive, as part of the Meeting Materials, a form of proxy that has already been signed by the Intermediary (typically by facsimile, stamped signature) which is restricted as to the number of Common Shares beneficially owned by the Non-Registered Holder but which is otherwise uncompleted. If the Non-Registered Holder does not wish to attend and vote at the Meeting in person (or have another person attend and vote on the Non-Registered Holder’s behalf) but wishes to direct the voting of the Common Shares they beneficially own, the Non-Registered Holder must complete the form of proxy and submit it to Computershare as described above. If a Non-Registered Holder wishes to attend and vote at the Meeting in person (or have another person attend and vote on the Non-Registered Holder’s behalf), the Non-Registered Holder must strike out the persons named in the proxy and insert the Non-Registered Holder’s (or such other person’s) name in the blank space provided. |
In either case, Non-Registered Holders should carefully follow the instructions of their Intermediaries, including those regarding when and where the proxy or the voting instruction form is to be delivered.
A Non-Registered Holder may revoke a voting instruction form or a waiver of the right to receive Meeting Materials and to vote given to an Intermediary at any time by written notice to the Intermediary, except that an Intermediary is not required to act on a revocation of a voting instruction form or of a waiver of the right to receive materials and to vote that is not received by the Intermediary at least seven days prior to the Meeting.
A Non-Registered Holder may fall into two categories – those who object to their identity being made known to the issuers of the securities which they own (“Objecting Beneficial Owners”) and those who do not object to their identity being made known to the issuers of the securities which they own (“Non-Objecting Beneficial Owners”). Subject to the provisions of NI 54-101, issuers may request and obtain a list of their Non-Objecting Beneficial Owners from Intermediaries. Pursuant to NI 54-101, issuers may obtain and use the Non-Objecting Beneficial Owners list in connection with any matters relating to the affairs of the issuer, including the distribution of proxy-related materials directly to Non-Objecting Beneficial Owners. The Corporation is sending Meeting Materials directly to Non-Objecting Beneficial Owners; the Corporation uses and pays Intermediaries and agents to send the Meeting Materials. The Corporation also intends to pay for Intermediaries to deliver the Meeting Materials to Objecting Beneficial Owners.
These securityholder materials are being sent to both registered Shareholders and Non- Registered Holders utilizing the Notice-and-Access Provisions. If you are a Non-Registered Holder, and the Corporation or its agent sent these materials directly to you, your name, address and information about your holdings of securities, have been obtained in accordance with applicable securities regulatory requirements from the Intermediary holding securities on your behalf.
By choosing to send these materials to you directly utilizing the Notice-and-Access Provisions, the Corporation (and not the Intermediary holding securities on your behalf) has assumed responsibility for (i) delivering these materials to you, and (ii) executing your proper voting instructions. Please return your voting instruction form as specified in the request for voting instructions that was sent to you.
7. EXERCISE OF DISCRETION BY PROXIES
Common Shares represented by properly executed proxies in favour of the persons named in the enclosed form of proxy will be voted on any ballot that may be called for and, where the person whose proxy is solicited specifies a choice with respect to the matters identified in the proxy, the Common Shares will be voted or withheld from voting in accordance with the specifications so made. Where Shareholders have properly executed proxies in favour of the persons named in the enclosed form of proxy and have not specified in the form of proxy the manner in which the named proxies are required to vote the Common Shares represented thereby, such shares will be voted in favour of the passing of the matters set forth in the Notice. If a Shareholder appoints a representative other than the persons designated in the form of proxy, the Corporation assumes no responsibility as to whether the representative so appointed will attend the Meeting on the day thereof or any adjournment or postponement thereof.
The enclosed form of proxy confers discretionary authority with respect to amendments or variations to the matters identified in the Notice and with respect to other matters that may properly come before the Meeting. At the date hereof, the management of the Corporation and the directors of the Corporation know of no such amendments, variations or other matters to come before the Meeting. However, if any other matters which at present are not known to the management of the Corporation and the directors of the Corporation should properly come before the Meeting, the proxy will be voted on such matters in accordance with the best judgment of the named proxies
Unless otherwise indicated in this Circular and in the form of proxy and Notice attached hereto, Shareholders shall mean registered Shareholders.
- 3 -
8. INTEREST OF CERTAIN PERSONS OR COMPANIES IN MATTERS TO BE ACTED UPON
Except as described elsewhere in this Circular, management of the Corporation is not aware of any material interest, direct or indirect, by way of beneficial ownership of securities or otherwise, of (a) any director or executive officer of the Corporation, (b) any proposed nominee for election as a director of the Corporation, and (c) any associates or affiliates of any of the persons or companies listed in (a) and (b), in any matter to be acted on at the Meeting.
9. VOTING SECURITIES AND PRINCIPAL HOLDERS
As at the date hereof, the Corporation had 83,589,029 Common Shares outstanding, representing the Corporation's only securities with respect to which a voting right may be exercised at the Meeting. Each Common Share carries the right to one vote at the Meeting. A quorum for the transaction of business at the Meeting is two Shareholders, or one or more proxyholders representing two Shareholders, or one Shareholder and a proxyholder representing another Shareholder, holding or representing not less than five percent (5%) of the issued and outstanding Common Shares enjoying voting rights at the Meeting.
To the knowledge of the directors and senior officers of the Corporation as at the date hereof, based on information provided on the System for Disclosure by Insiders (SEDI) and on information filed by third parties on the System for Electronic Document Analysis and Retrieval (SEDAR), no person or corporation beneficially owned, directly or indirectly, or exercised control or discretion over, voting securities of the Corporation carrying more than 10% of the voting rights attached to any class of voting securities of the Corporation, other than the following:
Name | Number of Common Shares | Percentage of Common Shares | ||||||
Gregory Crawford(1) | 6,037,059 | 7.2 | %(2) |
Notes:
(1) | Of the 6,037,059 Common Shares, Mr. Crawford is the registered and beneficial holder of 3,583,059 Common Shares (and stock options exercisable for 2,374,000 Common Shares), and exercises control and direction over 80,000 Common Shares held by his spouse. |
(2) | Calculated on partially diluted basis. |
10. THE SPIN-OUT TRANSACTION
On December 21, 2017, pursuant to an arrangement under the provisions of Division 5 of Part 9 of the Business Corporations Act (British Columbia) (the “BCBCA”) involving the Corporation, Viemed Healthcare, Inc. and the securityholders of the Corporation, the Corporation completed a spin-out of Viemed Healthcare, Inc. and its operating businesses.
11. BUSINESS OF THE MEETING
To the knowledge of the directors of the Corporation, the only matters to be brought before the Meeting are those set forth in the accompanying Notice of Meeting.
(i) Financial Statements
Pursuant to the BCBCA, the directors of the Corporation will place before the shareholders at the Meeting the audited financial statements of the Corporation for the years ended September 30, 2019 and 2018 and the auditors’ report thereon. Shareholder approval is not required in relation to the financial statements.
(ii) Election of Directors
The board of directors of the Corporation presently consists of three directors. All of the current directors have been directors since the dates indicated below and all will be standing for re-election. The board of directors recommends that shareholders vote FOR the election of the three nominees of management listed in the following table.
Each director will hold office until his re-election or replacement at the next annual meeting of the shareholders unless he resigns his duties or his office becomes vacant following his death, dismissal or any other cause prior to such meeting.
Unless otherwise instructed, proxies and voting instructions given pursuant to this solicitation by the management of the Corporation will be voted for the election of the proposed nominees. If any proposed nominee is unable to serve as a director, the individuals named in the enclosed form of proxy reserve the right to nominate and vote for another nominee in their discretion.
- 4 -
Advance Notice Provisions
The Corporation’s Articles provide for advance notice of nominations of directors of the Corporation which require that advance notice be provided to the Corporation in circumstances where nominations of persons for election to the board of directors are made by shareholders of the Corporation other than pursuant to: (i) a requisition of a meeting of shareholders made pursuant to the provisions of the BCBCA; or (ii) a shareholder proposal made pursuant to the provisions of the BCBCA. A copy of the Articles are available under the Corporation’s profile on SEDAR at www.sedar.com.
Nominees to the Board of Directors
Name and Residence | Position and Office | Principal Occupation or Employment | Served as Director | Number of Common |
during the past five years(1) | Since | Shares over which | ||
Control or Direction | ||||
is Exercised(1) | ||||
Gregory Crawford(2)
Fort Thomas, Kentucky |
President, Chief
Executive Officer and Director |
President, Chief Executive Officer of the Corporation since December 21, 2017.
Chief Operating Officer of the Corporation from April 19,2016 to December 21, 2017.
President and Chief Executive Officer of Patient-Aids, Inc. from 2004 to October 2015, when Patient-Aids, Inc. was acquired by the Corporation. |
December 21, 2017 | 6,037,059(3) |
Mark Greenberg(2)
Cincinnati, Ohio |
Director |
Managing Partner of Silverstone Capital Advisors since March 2009.
Managing Partner of Ludlow, Ward & Greenberg Capital Partners from 2005 to 2009. |
December 21, 2017 | 1,715,000(4) |
Eugene Ewing(2)
Fort Mitchell, Kentucky |
Director |
Managing Member, Deeper Water Consulting since May 2006.
Independent Director – Various Corporations |
August 1, 2018 | 478,333(5) |
Notes:
(1) | The information as to principal occupation, business or employment and shares beneficially owned or controlled is not within the knowledge of management of the Corporation and has been furnished by the respective individuals. |
(2) | Member of the Audit Committee. |
(3) | Of the 6,037,059 Common Shares, Mr. Crawford is the registered and beneficial holder of 3,583,059 Common Shares (and stock options exercisable for 2,374,000 Common Shares), and exercises control and direction over 80,000 Common Shares held by his spouse. |
(4) | Mr. Greenberg is the holder of stock options exercisable for 1,715,000 Common Shares. |
(5) | Of the 478,333 Common Shares, Mr. Ewing is the beneficial holder of 278,333 Common Shares (and stock options exercisable for 200,000 Common Shares). |
Corporate Cease Trade Orders or Bankruptcies
None of the proposed directors of the Corporation is, as at the date hereof, or has been, within the previous 10 years, a director, chief executive officer or chief financial officer of any company (including the Corporation) that, (i) was subject to an order that was issued while the proposed director was acting in the capacity as director, chief executive officer or chief financial officer, or (ii) was subject to an order that was issued after the proposed director ceased to be a director, chief executive officer or chief financial officer and which resulted from an event that occurred while that person was acting in the capacity as director, chief executive officer or chief financial officer.
None of the proposed directors of the Corporation is, as at the date hereof, or has been, within the previous 10 years, a director or executive officer of any company (including the Corporation) that, while that person was acting in that capacity, or within a year of that person ceasing to act in that capacity, became bankrupt, made a proposal under any legislation relating to bankruptcy or insolvency or was subject to or instituted any proceedings, arrangement or compromise with creditors or had a receiver, receiver manager or trustee appointed to hold its assets.
- 5 -
Penalties or Sanctions
None of the proposed directors of the Corporation has been subject to (a) any penalties or sanctions imposed by a court relating to securities legislation or by a securities regulatory authority or has entered into a settlement agreement with a securities regulatory authority; or (b) any other penalties or sanctions imposed by a court or regulatory body that would likely be considered important to a reasonable securityholder in deciding whether to vote for a proposed director.
Personal Bankruptcies
None of the proposed directors of the Corporation has, within the 10 years before the date hereof, become bankrupt, made a proposal under any legislation relating to bankruptcy or insolvency, or become subject to or instituted any proceedings, arrangement or compromise with creditors, or had a receiver, receiver manager or trustee appointed to hold the assets of the proposed director.
(iii) Appointment of Auditor
Unless otherwise instructed, the persons named in the enclosed proxy or voting instruction form intend to vote such proxy or voting instruction form in favour of the re-appointment of MNP LLP, of 300-111 Richmond Street West, Toronto, Ontario M5H 2G4, as auditors of the Corporation to hold office until the next annual meeting of shareholders and the authorization of the directors of the Corporation to fix their remuneration.
The directors of the Corporation recommend that shareholders vote in favour of the appointment of MNP LLP, and the authorization of the directors of the Corporation to fix their remuneration. To be adopted, this resolution is required to be passed by the affirmative vote of a majority of the votes cast at the Meeting.
12. CORPORATE GOVERNANCE DISCLOSURE
Set forth below is a description of the Corporation’s current corporate governance practices, as prescribed by Form 58-101F2, which is attached to National Instrument 58-101 – Disclosure of Corporate Governance Practices (“NI 58-101”):
Board of Directors
The directors have determined that Mark Greenberg and Eugene Ewing, current and prospective members of the board of directors of the Corporation, are independent as such term is defined in NI 58-101, and that Gregory Crawford (President and Chief Executive Officer), current and prospective member of the board of directors of the Corporation, is not independent as such term is defined in NI 58-101, as he is an executive officer (as such term is defined in NI 51-102) of the Corporation.
Directorships
No directors and prospective directors of the Corporation are presently directors of other issuers that are reporting issuers (or the equivalent).
Orientation and Continuing Education
While the Corporation does not currently have a formal orientation and education program for new members of the board of directors, the Corporation provides such orientation and education on an ad hoc and informal basis.
Ethical Business Conduct
The directors maintain that the Corporation must conduct and be seen to conduct its business dealings in accordance with all applicable laws and the highest ethical standards. The company’s reputation for honesty and integrity amongst its Shareholders and other stakeholders is key to the success of its business. No employee or director will be permitted to achieve results through violation of laws or regulations, or through unscrupulous dealings.
Any director with a conflict of interest or who is capable of being perceived as being in conflict of interest with respect to the Corporation must abstain from discussion and voting by the board of directors or any committee of the board of directors on any motion to recommend or approve the relevant agreement or transaction. The board of directors must comply with conflict of interest provisions of the BCBCA.
- 6 -
Nomination of Directors
Both the directors and management are responsible for selecting nominees for election to the board of directors. At present, there is no formal process established to identify new candidates for nomination. The board of directors and management determine the requirements for skills and experience needed on the board of directors from time to time. The present board of directors and management expect that new nominees have a track record in general business management, special expertise in an area of strategic interest to the Corporation, the ability to devote the time required, support for the Corporation’s business objectives and a willingness to serve.
Compensation
The directors carry out the evaluation of the Chief Executive Officer and develop the appropriate compensation policies for both the employees of the Corporation and the directors of the Corporation.
To determine appropriate compensation levels, the directors review compensation paid for directors and Chief Executive Officers of companies of similar size and stage of development in the healthcare industry and determine an appropriate compensation reflecting the need to provide incentive and compensation for the time and effort expended by the directors and senior management while taking into account the financial and other resources of the Corporation. In setting compensation levels, the directors annually review the performance of the Chief Executive Officer in light of the company’s objectives and consider other factors that may have impacted the success of the Corporation in achieving its objectives. The directors may engage independent compensation advice in order to fulfill their mandate.
Other Board Committees
The board of directors of the Corporation has no committees other than the Audit Committee.
Assessments
The directors believe that nomination to the Corporation’s board of directors is not open ended and that directorships should be reviewed carefully for alignment with the strategic needs of the Corporation. To this extent, the directors constantly review (i) individual director performance and the performance of the board of directors as a whole, including processes and effectiveness; and (ii) the performance of the Chairman, if any, of the board of directors.
13. AUDIT COMMITTEE
National Instrument 52-110 – Audit Committees (“NI 52-110”) requires the Corporation, as a venture issuer, to disclose annually in its Circular certain information concerning the constitution of its Audit Committee and its relationship with its independent auditor.
Audit Committee Charter
The Corporation’s Audit Committee is governed by an audit committee charter, a copy of which is attached hereto as Schedule “A”.
Composition of Audit Committee
The Corporation’s Audit Committee is comprised of its three (3) directors, Eugene Ewing (Chair), Mark Greenberg, and Gregory Crawford. Each member of the audit committee is financially literate, as such term is defined in NI 52-110, and two of the members, Mark Greenberg and Eugene Ewing, are independent, as such term is defined in NI 52-110 and in the BCBCA.
The directors have determined that Eugene Ewing and Mark Greenberg, current and prospective members of the board of directors of the Corporation, are independent as such term is defined in NI 58-101, and that Gregory Crawford (President and Chief Executive Officer), current and prospective member of the board of directors of the Corporation, is not independent as such term is defined in NI 58-101, as he is an executive officer (as such term is defined in NI 51-102) of the Corporation.
- 7 -
Relevant Education and Experience
In addition to each member’s general business experience, the education and experience of each audit committee member relevant to the performance of his responsibilities as an audit committee member is as follows:
Eugene Ewing has over 30 years of professional experience in a wide range of executive positions and brings a wealth of corporate knowledge across a variety of industry groups. He currently serves as an independent director of Darling Ingredients Inc., a New York Stock Exchange listed company, where he serves as Chairman of the Audit Committee and as a member of the Nominating and Governance Committee. He also serves as an independent director of Compass Diversified Holdings, a New York Stock Exchange listed company, where he also serves as Chairman of the Audit Committee and as a member of the Compensation and Nominating/Corporate Governance Committees. In addition to his public company roles, Mr. Ewing has been the managing member of Deeper Water Consulting, a private wealth and business consulting company, since March of 2004. Previously, Mr. Ewing held senior positions at the Fifth Third Bank, ranked 17th in 2018 in total assets for U.S. banks, and was a tax partner at Arthur Andersen LLP for over 15 years. Mr. Ewing is also on the Advisory Board for the Von Allmen School of Accountancy at the University of Kentucky and is also a director of a private trust company located in Wyoming and a private consulting company located in California. As a former partner with what was once one of the U.S.’s largest certified public accounting firms, and with more than 30 years of business planning and transaction experience in a wide variety of industries and circumstances, Mr. Ewing brings to the Corporation’s Audit Committee significant experience in complex accounting, reporting and taxation matters and corporate merger and acquisition transactions. Mr. Ewing’s financial certifications and education, along with his current and past experiences, makes him uniquely qualified to Chair the Audit Committee the Corporation.
Mark Greenberg is Managing Partner and Founder of Silverstone Capital Advisors and brings more than thirty years of senior executive operating and transaction expertise and experience. He has been a senior executive and operating president of units in Fortune 500 companies and a CEO and Chairman of middle market and high growth, venture capital-backed companies, as well as an investment banker and restructuring and financial advisor serving middle market and financial institution clients nationwide. As a principal investor, advisor, investment banker and transaction team member Mark has participated in more than 150 M&A and capital sourcing transactions. These have included transactions involving units of Fortune 1000 companies, middle market companies and high growth venture funded businesses.
Gregory Crawford joined the Corporation through the Corporation’s acquisition of Patient-Aids, Inc. in October of 2015. Mr. Crawford began his career at Patient-Aids in 1994, becoming a partner three years later and Patient-Aids' sole owner by 2004. Under Crawford’s ownership, Patient-Aids grew at an annual rate of 25%, and from 2013 through 2015 more than doubled its revenue and quadrupled its earnings as it acquired and successfully integrated five home medical equipment businesses. Since 1982, Patient-Aids has been the dominant HME business in its region. Their product lines and services focus on treating patients with chronic respiratory conditions, mobility conditions, and patients requiring traditional durable medical home-based equipment.
External Auditor Matters
Since the commencement of the Corporation’s most recently completed financial year, the Corporation’s directors have not failed to adopt a recommendation of the Audit Committee to nominate or compensate an external auditor and the Corporation has not relied on the exemptions contained in sections 2.4 or 8 of NI 52-110. Section 2.4 provides an exemption from the requirement that the Audit Committee must pre-approve all non-audit services to be provided by the auditor, where the total amount of fees related to the non-audit services are not expected to exceed 5% of the total fees payable to the auditor in the financial year in which the non-audit services were provided. Part 8 permits a company to apply to a securities regulatory authority for an exemption from the requirements of NI 52-110, in whole or in part.
The Audit Committee has not adopted specific policies and procedures for the engagement of non-audit services. Subject to the requirements of NI 52-110, the engagement of non-audit services is considered by the Corporation's directors and, where applicable, the Audit Committee, on a case-by-case basis.
In the following table, “Audit fees” are fees billed by the Corporation’s external auditor for services provided in auditing the Corporation’s annual financial statements for the subject year. “Audit-related fees” are fees not included in audit fees that are billed by the auditor for assurance and related services that are reasonably related to the performance of the audit or review of the
Corporation’s financial statements. “Tax fees” are fees billed by the auditor for professional services rendered for tax compliance, tax advice and tax planning. “All other fees” are fees billed by the auditor for products and services not included in the foregoing categories.
The fees paid by the Corporation to its auditor in its previous three financial year-ends, by category, are as follows (expressed in Canadian dollars):
Financial Year Ending | Audit Fees | Audit-Related Fees | Tax Fees | All Other Fees | ||||||||||
September 30, 2019 | $ | 342,800 | $ | 21,000 | Nil | Nil | ||||||||
September 30, 2018 | $ | 313,000 | $ | 21,800 | Nil | $ | 81,500 |
- 8 -
Exemptions:
The Corporation is a “venture issuer” as defined in NI 52-110 and is relying on the exemption contained in Section 6.1 of NI 52-110, which exempts the Corporation from the requirements of Part 3 (Composition of the Audit Committee) and Part 5 (Reporting Obligations) of NI 52-110.
14. EXECUTIVE COMPENSATION
Securities legislation requires the disclosure of the compensation received by each “Named Executive Officer” (“Named Executive Officer”) of the Corporation for the most recently completed financial year. “Named Executive Officer” is defined by the legislation to mean: (i) the Chief Executive Officer of the Corporation; (ii) the Chief Financial Officer of the Corporation; (iii) each of the Corporation’s three most highly compensated executive officers or the three most highly compensated individuals acting in a similar capacity, other than the Chief Executive Officer and Chief Financial Officer, at the end of the most recently completed financial year and whose total compensation was, individually, more than $150,000 for that financial year; and (iv) each individual who would be a “Named Executive Officer” under paragraph (iii) but for the fact that the individual was neither an executive officer of the Corporation, nor acting in a similar capacity, at the end of the most recently completed financial year.
Compensation Discussion and Analysis
During the financial year ended September 30, 2019, the Corporation’s executive compensation program was administered by the board of directors of Corporation. The Corporation’s executive compensation program has the objective of attracting and retaining a qualified and cohesive group of executives, motivating team performance and the aligning of the interests of executives with the interests of the Corporation’s shareholders through a package of compensation that is simple and easy to understand and implement. Compensation under the program was designed to achieve both current and longer-term goals of PHM and to optimize returns to shareholders. In addition, in order to further align the interests of executives with the interests of the Corporation’s shareholders, the Corporation has implemented share ownership incentives through the 2019 Option Plan (as hereinafter defined), and the RSU/DSU Plan (as hereinafter defined). The Corporation’s overall compensation objectives are in line with its peer group of healthcare companies with opportunities to participate in equity.
In determining the total compensation of any member of senior management, the directors of Corporation consider all elements of compensation in total rather than one element in isolation. The directors of the Corporation also examine the competitive positioning of total compensation and the mix of fixed, incentive and share-based compensation.
Base Salary
While there is no official set of benchmarks that the Corporation relies on and there is not a defined list of issuers that the Corporation uses as a benchmark, the Corporation makes itself aware of, and is cognizant of, how comparable issuers in its business compensate their executives. The base salary for each executive officer is reviewed and established near the end of the fiscal year. Base salaries are established taking into consideration the executive officer’s personal performance and seniority, comparability within industry norms, and contribution to the corporation’s growth and profitability. Management of the
Corporation believes that a competitive base salary is an imperative element of any compensation program that is designed to attract talented and experienced executives.
Bonus Framework
At the discretion of the board of directors, executives are provided with annual cash incentive bonuses based on annual financial performance. Also at its discretion, the board of directors may tie annual cash bonuses to the achievement of other financial and non-financial goals. If the targets set are not met, the bonuses are not paid.
Group Benefits
The Corporation offers a group benefits plan, which includes medical benefits and a matching (up to 4%) 401K plan. The benefits plan is available to all full-time employees who choose to enroll, including officers of the Corporation.
Perquisites and Personal Benefits
While the Corporation reimburses its Named Executive Officers for expenses incurred in the course of performing their duties as executive officers of the Corporation, the Corporation did not provide any compensation that would be considered a perquisite or personal benefit to its Named Executive Officers, other than car allowances as disclosed below.
- 9 -
Option-Based Awards
An important part of the Corporation’s compensation program is to offer the opportunity and incentive for executives and staff to own shares of the Corporation. The directors of the Corporation believe that ownership of its shares will align the interests of executives and future staff with the interests of the Corporation’s shareholders.
Share-based and option-based awards are not granted on a regular schedule but rather as the compensation is reviewed by the directors of the Corporation from time to time. When reviewing awards, consideration is given to the total compensation package of the executives and staff and a weighting of appropriate incentives groupings at the senior, mid and junior levels of the staff including past grants. At the time of any award, consideration is also be given to the available pool remaining for new positions being contemplated by the Corporation.
Option Plan
An amended and restated fixed number stock option plan (and its predecessors) (the “2019 Option Plan”) was approved at the annual and special meeting of the shareholders of the Corporation held on January 28, 2019. The purpose of the 2019 Option Plan is to provide incentive to employees, directors, officers, management companies, and consultants who provide services to Corporation or any of its subsidiaries.
Pursuant to the 2019 Option Plan, the maximum number of Common Shares to be delivered upon the exercise of all stock options granted under the Option Plan combined with any equity securities granted under all other compensation arrangements adopted by the Corporation, including the RSU/DSU Plan (as defined below), may not exceed 20% of the issued and outstanding share capital of the Corporation as of the date the 2019 Option Plan was approved, namely 3,341,188 Common Shares, which options may be exercisable for a period of up to ten (10) years from the date of the grant, subject to the exception that expiry dates that fall within a blackout period will be extended by ten (10) business days from the expiry of the blackout period, subject to certain conditions being met.
Subject to obtaining disinterested shareholder approval, the number of Common Shares reserved for issuance pursuant to grant of options to any individual may not exceed 5% of the issued and outstanding Common Shares in any 12-month period (2% in the case of all optionees providing investor relations services to the Corporation and 2% in the case of all consultants of the Corporation in any 12-month period). The exercise price and vesting terms of any option granted pursuant to an option will be determined by the directors of the Corporation when granted but shall not be less than the market price. Notwithstanding the foregoing, the vesting terms for options granted to optionees performing investor relations activities will vest no sooner than one-quarter (1/4) on every three (3) month interval from the date of grant.
The options granted pursuant to the 2019 Option Plan will be non-transferable, except by means of a will or pursuant to the laws of descent and distribution. If the tenure of an officer or the employment of an employee of the Corporation, is terminated for cause, no option held by such optionee may be exercised following the date upon which termination occurred. If termination occurs for any reason other than cause, then any option held by such optionee will be exercisable, in whole or in part, for thirty (30) days from the date of termination, subject to the discretion of the directors of the Corporation to extend such period up to one (1) year following the date of termination, which will be determined by the directors of the Corporation at the time of each grant or on the date of termination; notwithstanding the foregoing, the directors of the Corporation may in its discretion determine that all of the options held by an optionee on the date of termination which have not yet vested shall vest immediately on such date.
Restricted Share Units/Deferred Share Units
A restricted share unit and deferred share unit plan of the Corporation (the “RSU/DSU Plan”) was approved at the special meeting of the shareholders and option holders of the Corporation held on December 15, 2017. The RSU/DSU Plan was established as a means by which the Corporation may grant awards of restricted share units (“RSUs”) and deferred share units (“DSUs”) as an alternative to stock options to provide incentive to officers, directors and employees who provide services to the Corporation or any of its subsidiaries.
The maximum number of Common Shares to be delivered upon the exercise of all RSUs and DSUs granted under the RSU/DSU Plan, combined with any equity securities granted under all other compensation arrangements adopted by the Corporation, including the 2019 Option Plan, may not exceed 20% of the issued and outstanding share capital of the Corporation as of the effective date of the RSU/DSU Plan, namely 3,341,188 Common Shares.
Pursuant to the RSU/DSU Plan, the directors of the Corporation may from time to time, in its discretion, grant DSUs, or if permitted by the directors of the Corporation, eligible participants may elect to receive their compensation in the form of DSUs, which will consist of non-transferable rights to receive, on a deferred payment basis, the Common Shares or a cash payment equal to the fair market value of Common Shares, or a combination thereof. The number of DSUs to be credited to a person will be determined based on the amount of compensation to be paid in DSUs divided by the fair market value of the Common Shares as determined by the directors of the Corporation, on a one DSU per Common Share basis. DSUs will be redeemed by the Corporation upon the holder ceasing to be employed by or ceasing to provide services to the Corporation, as applicable, and will be settled pursuant to the terms and conditions of the RSU/DSU Plan.
- 10 -
The directors of the Corporation may also from time to time grant RSUs, which will represent non-transferable rights to receive upon vesting of the RSUs The Common Shares or cash payments equal to the vesting date value of the Common Shares. Except as otherwise provided in the RSU/DSU Plan, RSUs will vest on the later of (a) the trigger date, being a date set by the directors of the Corporation that is no later than December 1 of the third calendar year following the grant date, and (b) the date upon which all other applicable vesting conditions determined by the directors of the Corporation, including any performance based vesting conditions, have been met. Vesting may be accelerated in certain circumstances, including upon termination without cause in connection with a change of control of the Corporation or upon death or permanent disability of the holder. RSUs will be automatically deemed cancelled without compensation if they have not vested on or before the applicable expiry date, which will be December 31 of the third calendar year after the grant date or such earlier date as may be established by the directors of the Corporation. Subject to the discretion of directors of the Corporation, RSUs will also be cancelled without compensation in the event that a holder ceases to be engaged as a service provider of the Corporation.
Summary Compensation Table for Named Executive Officers
The following table sets forth information concerning the total compensation paid in the financial years ended September 30, 2019, 2018 and 2017 to those persons who were Named Executive Officers of the Corporation for the financial year ended September 30, 2019 (expressed in U.S. dollars):
Non-equity incentive | ||||||||||||||||||||||||||||||
plan compensation | ||||||||||||||||||||||||||||||
($) | ||||||||||||||||||||||||||||||
Name and | Share- | Annual | Long term | All other | Total | |||||||||||||||||||||||||
principal | based | Option-based | incentive | incentive | Pension | compen- | compen- | |||||||||||||||||||||||
position | Year | Salary | awards | Awards(3) | plans | plans | value | sation | sation | |||||||||||||||||||||
($) | ($) | ($) | ($) | ($) | ($) | |||||||||||||||||||||||||
Gregory Crawford | 2019 | 425,000 | N/A | N/A | N/A | N/A | N/A | 227,452 | (5) | 652,452 | ||||||||||||||||||||
CEO and former | 2018 | 417,923 | N/A | 848,260 | N/A | N/A | N/A | 19,934 | 1,000,118 | |||||||||||||||||||||
COO(1) | 2017 | 167,308 | N/A | N/A | N/A | N/A | N/A | 303,916 | (4) | 471,224 | ||||||||||||||||||||
Hardik Mehta | 2019 | 360,000 | N/A | N/A | N/A | N/A | N/A | 196,320 | (5) | 556,320 | ||||||||||||||||||||
CFO(2) | 2018 | 226,538 | N/A | 757,010 | N/A | N/A | N/A | 27,000 | 1,010,548 | |||||||||||||||||||||
2017 | N/A | N/A | N/A | N/A | N/A | N/A | N/A | N/A |
Notes:
(1) | Mr. Crawford was Chief Operating Officer from April 19, 2016 to December 21, 2017. He has been the President and Chief Executive Officer of the Corporation since December 21, 2017. |
(2) | Mr. Mehta has been the Chief Financial Officer of the Corporation since February 15, 2018. |
(3) | For 2018, calculated at the date of the grant using the black-scholes options pricing model with the following assumptions: risk free interest rates of 2.36%; dividend yield of nil; expected stock price volatility of 136.35%; option life of 10 years. |
(4) | Included in other compensation is a portion of previous year’s salary that was deferred by certain members of management prior to the Corporation’s spin-out transaction in December 2017, including by Mr. Crawford ($240,000). |
(5) | Included in other compensation is a bonus paid to Mr. Crawford ($212,500) and Mr. Mehta ($180,000). |
Incentive Plan Awards
Outstanding Share-Based Awards and Option-Based Awards
The following table sets forth all awards outstanding for the Named Executive Officers as of September 30, 2019 (expressed in Canadian dollars):
Option-Based Awards | Share-Based Awards | |||||||||||||||||
Number of | Option | Option | Value of | Number of | Market or payout | |||||||||||||
securities | exercise | expiration | unexercised in- | shares or units | value of share | |||||||||||||
underlying | price | date | the-money | of shares that | based awards | |||||||||||||
unexercised | ($) | options(1) | have not vested | that have not | ||||||||||||||
options | ($) | (#) | vested | |||||||||||||||
Name | (#) | ($) | ||||||||||||||||
Gregory Crawford | 2,324,000 | 0.375 | April 9, 2028 | 1,103,900 | N/A | N/A | ||||||||||||
50,000 | 0.95 | November 16, 2020 | Nil | N/A | N/A | |||||||||||||
10,000 | 0.90 | December 20,2020 | Nil | N/A | N/A | |||||||||||||
Hardik Mehta | 2,074,000 | 0.375 | April 9, 2028 | 985,150 | N/A | N/A |
- 11 -
Notes:
(1) | Aggregate value is calculated based on the difference between the exercise price of the options and the last closing price of the Common Shares on the TSXV on September 30, 2019, namely $0.85. |
Incentive Plan Awards – Value Vested or Earned During the Year
The following table sets forth the value of all incentive plan awards vested or earned for the Named Executive Officers during the year ended September 30, 2019 (expressed in Canadian dollars):
Option-based awards – | Share-based awards – | Non-equity incentive plan | ||||||
Value vested during the | Value vested during the | compensation – Value | ||||||
year(1) | year | earned during the year | ||||||
Name | ($) | ($) | ($) | |||||
Gregory Crawford | 896,193 | N/A | N/A | |||||
Hardik Mehta | 799,786 | N/A | N/A |
Notes:
(1) | Aggregate value is calculated based on the difference between the exercise price of the options on the date they vest and the closing price of the Common Shares on the TSXV on such date, or in the event such date is not a trading date, the closing price on the next trading date. |
Pension Plan Benefits
The Corporation has not implemented a pension plan.
Termination and Change of Control Benefits
As at the end of the Corporation’s most recently completed financial year (September 30, 2019) the Corporation had not entered into any contract, agreement, plan or arrangement that provides for payments to a Named Executive Officer at, following or in connection with any termination (whether voluntary, involuntary or constructive), resignation, pursuant to retirement, a change in control of the Corporation or a change in Named Executive Officer’s responsibilities.
Risk of Compensation Practices and Disclosure
The directors of the Corporation have not proceeded to a formal evaluation of the implications of the risks associated with the
Corporation’s compensation policies and practices. Risk management is a consideration of the directors when implementing its compensation program, and the directors of the Corporation do not believe that the Corporation’s compensation program results in unnecessary or inappropriate risk taking, including risks that are likely to have a material adverse effect on the Corporation.
Hedging Policy
Neither the Named Executive Officers nor the directors of the Corporation are permitted to purchase financial instruments that are designed to hedge or offset a decrease in market value of equity securities granted as compensation or held, directly or indirectly, by the Named Executive Officers or directors of the Corporation, including prepaid variable forward contracts, equity swaps, collars or units of exchange funds.
Director Compensation
Directors have been granted options as long-term incentives to align the individual’s interests with those of the Corporation.
Director Compensation Table for Directors (other than the Named Executive Officers)
The following table sets forth all compensation provided to person who was a director of the Corporation during the financial year ended September 30, 2019 (other than a director who is a Named Executive Officer, whose disclosure with respect to compensation is set out above) for the financial year ended September 30, 2019 (expressed in United States dollars):
Share- | Option- | Non-equity | ||||||||||||||||
Fees | based | based | incentive plan | Pension | All other | |||||||||||||
earned | awards | awards | compensation | value | compensation | Total | ||||||||||||
Name | ($) | ($) | ($) | ($) | ($) | ($) | ($) | |||||||||||
Mark Greenberg | 120,000 | N/A | N/A | N/A | N/A | N/A | 120,000 | |||||||||||
Eugene Ewing | 50,000 | N/A | N/A | N/A | N/A | N/A | 50,000 |
- 12 -
During the year ended September 30, 2019, Mark Greenberg was compensated USD $120,000, payable monthly in arrears, for his position on the board of directors and Eugene Ewing was compensated USD $40,000, payable quarterly in arrears, for his position on the board of directors and USD $10,000, payable quarterly in arrears, for serving as Chair of the Audit Committee.
Outstanding Share-Based Awards and Option-Based Awards
The following table sets forth all awards outstanding for each person who was a director of the Corporation during the financial year ended September 30, 2019 (other than a director who is a Named Executive Officer, whose disclosure with respect to incentive plan awards is set out above) as of September 30, 2019 (expressed in Canadian dollars):
Option-Based Awards | Share-Based Awards | |||||||||||||||||
Number of | Option | Option | Value of | Number of | Market or payout | |||||||||||||
securities | exercise | expiration | unexercised | shares or units | value of share | |||||||||||||
underlying | price | date | in-the-money | of shares that | based awards | |||||||||||||
unexercised | ($) | options(1) | have not vested | that have not | ||||||||||||||
options | ($) | (#) | vested | |||||||||||||||
Name | (#) | ($) | ||||||||||||||||
Mark Greenberg | 1,715,000 | 0.375 | April 9, 2028 | 814,625 | N/A | N/A | ||||||||||||
Eugene Ewing | 200,000 | 0.55 | August 1, 2028 | 60,000 | N/A | N/A |
Notes:
(1) | Aggregate value is calculated based on the difference between the exercise price of the options and the last closing price of the Common Shares on the TSXV on September 30, 2019, namely $0.85. |
Incentive Plan Awards – Value Vested or Earned During the Year
The following table sets forth the value of all incentive plan awards vested or earned for each person who was a director of the Corporation during the financial year ended September 30, 2019 (other than a director who is a Named Executive Officer, whose disclosure with respect to incentive plan awards is set out above) during the year ended September 30, 2019 (expressed in Canadian dollars):
Option-based awards – | Share-based awards – | Non-equity incentive plan | ||||||||||
Value vested during the | Value vested during the | compensation – Value | ||||||||||
year(1) | year | earned during the year | ||||||||||
Name | ($) | ($) | ($) | |||||||||
Mark Greenberg | 661,347 | N/A | N/A | |||||||||
Eugene Ewing | N/A | N/A | N/A |
- 13 -
Notes:
(1) | Aggregate value is calculated based on the difference between the exercise price of the options on the date they vest and the closing price of the Common Shares on the TSXV on such date, or in the event such date is not a trading date, the closing price on the next trading date. |
15. SECURITIES AUTHORIZED FOR ISSUANCE UNDER EQUITY COMPENSATION PLANS
The following table provides information as of September 30, 2019 regarding the number of Common Shares to be issued pursuant to equity compensation plans of the Corporation and the weighted-average exercise price of said securities:
Number of securities to be issued | Weighted-average | Number of securities remaining available | ||||||||
upon exercise of outstanding | exercise price of | for future issuance under equity | ||||||||
options, warrants and rights | outstanding options, | compensation plans (excluding securities | ||||||||
(a) | warrants and rights | reflected in column (a)) | ||||||||
Plan Category | (b) | (c) | ||||||||
Equity compensation plans | 11,759,474 | 0.524 | 5,258,690 | |||||||
approved by | ||||||||||
securityholders | ||||||||||
Equity compensation plans | ||||||||||
not approved by | - | - | - | |||||||
securityholders | ||||||||||
Total | 11,759,474 | 0.524 | 5,258,690 |
The securities referred to in the table above were granted under the 2019 Option Plan (or its predecessors plans).
- 14 -
16. INDEBTEDNESS OF DIRECTORS AND EXECUTIVE OFFICERS
None of the directors, the proposed nominees for election as director, the executive officers of the Corporation, or any of their respective associates or affiliates is or has been, during the year ended September 30, 2019, indebted to the Corporation or any of its subsidiaries in respect of loans, advances or guarantees of indebtedness.
17. DIRECTOR AND OFFICER INSURANCE
The Corporation maintains an executive and organization liability insurance policy that covers directors and officers for costs incurred to defend and settle claims against directors and officers of the Corporation to an annual limit of $45,000,000 with retention of $25,000 on securities and oppressive conduct claims and $25,000 on all other claims. The cost of coverage for 2019 was approximately $113,100. Directors and officers do not pay any portion of the premiums and no indemnity claims were made or became payable during 2019.
18. INTEREST OF INFORMED PERSONS IN MATERIAL TRANSACTIONS
Except as otherwise disclosed herein and below, none of the informed persons (as such term is defined in NI 51-102) of the Corporation, any proposed director of the Corporation, or any associate or affiliate of any informed person or proposed director, has had any material interest, direct or indirect, in any transaction of the Corporation since the commencement of the Corporation’s most recently completed financial year or in any proposed transaction which has materially affected or would materially affect the Corporation or any of its subsidiaries.
On October 1, 2015, the Corporation entered into a seven-year triple net lease agreement for office space with a rental company that is affiliated with Gregory Crawford, the former Chief Operating Officer of the Corporation and since December 21, 2017, the President and Chief Executive Officer of the Corporation. Rental payments under this lease agreement are US$43,000 per month, plus taxes, utilities and maintenance.
19. MANAGEMENT CONTRACTS
There are no management functions of the Corporation which are to any substantial degree performed by a person or a company other than the directors or executive officers of the Corporation.
20. PARTICULARS OF OTHER MATTERS TO BE ACTED UPON
Other than the foregoing, management of the Corporation knows of no other matter to come before the Meeting other than those referred to in the Notice. However, if any other matters which are not known to the management should properly come before the Meeting, the accompanying form of proxy confers discretionary authority upon the persons named therein to vote on such matters in accordance with their best judgment.
21. ADDITIONAL INFORMATION
Additional information relating to the Corporation, including copies of the Corporation's financial statements and Management's Discussion and Analysis is available on SEDAR at www.sedar.com, copies of which may be obtained from the Corporation upon request. The Corporation may require the payment of a reasonable charge if the request is made by a person who is not a shareholder of the Corporation.
22. CURRENCY
Unless otherwise specified, all dollar amounts in this Circular, including the symbol “$”, are expressed in Canadian dollars.
DATED this 24th day of December, 2019.
BY ORDER OF THE BOARD
(signed) “Gregory Crawford”
Chairman of the Board of Directors
- 15 -
SCHEDULE "A"
AUDIT COMMITTEE CHARTER
(see attached)
CHARTER OF THE AUDIT COMMITTEE
1. | PURPOSE AND PRIMARY RESPONSIBILITY |
1.1 This charter sets out the Audit Committee’s purpose, composition, member qualification, member appointment and removal, responsibilities, operations, manner of reporting to the Board of Directors (the “Board”) of the Company, annual evaluation and compliance with this charter.
1.2 The primary responsibility of the Audit Committee is that of oversight of the financial reporting process on behalf of the Board. This includes oversight responsibility for financial reporting and continuous disclosure, oversight of external audit activities, oversight of financial risk and financial management control, and oversight responsibility for compliance with tax and securities laws and regulations as well as whistle blowing procedures. The Audit Committee is also responsible for the other matters as set out in this charter and/or such other matters as may be directed by the Board from time to time. The Audit Committee should exercise continuous oversight of developments in these areas.
2. | MEMBERSHIP |
2.1 A majority of the members of the Audit Committee must not be executive officers, employees or control persons of the Company or of an affiliate of the Company, as defined in National Instrument 52-110 – Audit Committees (“NI 52-110”), provided that should the Company become listed on a more senior exchange, each member of the Audit Committee will also satisfy the independence requirements of such exchange and of NI 52-110.
2.2 The Audit Committee will consist of at least three members, all of whom must be directors of the Company. Upon graduating to a more senior stock exchange, if required under the rules or policies of such exchange, each member of the Audit Committee will also satisfy the financial literacy requirements of such exchange and of NI 52-110.
2.3 The members of the Audit Committee will be appointed annually (and from time to time thereafter to fill vacancies on the Audit Committee) by the Board. An Audit Committee member may be removed or replaced at any time at the discretion of the Board and will cease to be a member of the Audit Committee on ceasing to be an independent director.
2.4 The Chair of the Audit Committee will be appointed by the Board.
3. | AUTHORITY |
3.1 In addition to all authority required to carry out the duties and responsibilities included in
this charter, the Audit Committee has specific authority to:
(a) engage, set and pay the compensation for independent counsel and other advisors as it determines necessary to carry out its duties and responsibilities, and any such consultants or professional advisors so retained by the Audit Committee will report directly to the Audit Committee;
- 2 -
(b) communicate directly with management and any internal auditor, and with the external auditor without management involvement; and
(c) incur ordinary administrative expenses that are necessary or appropriate in carrying out its duties, which expenses will be paid for by the Company.
4. | DUTIES AND RESPONSIBILITIES |
4.1 The duties and responsibilities of the Audit Committee include:
(a) | recommending to the Board the external auditor to be nominated by the Board; |
(b) recommending to the Board the compensation of the external auditor to be paid by the Company in connection with (i) preparing and issuing the audit report on the Company’s financial statements, and (ii) performing other audit, review or attestation services;
(c) reviewing the external auditor’s annual audit plan, fee schedule and any related services proposals (including meeting with the external auditor to discuss any deviations from or changes to the original audit plan, as well as to ensure that no management restrictions have been placed on the scope and extent of the audit examinations by the external auditor or the reporting of their findings to the Audit Committee);
(d) | overseeing the work of the external auditor; |
(e) ensuring that the external auditor is independent by receiving a report annually from the external auditors with respect to their independence, such report to include disclosure of all engagements (and fees related thereto) for non-audit services provided to Company;
(f) ensuring that the external auditor is in good standing with the Canadian Public Accountability Board by receiving, at least annually, a report by the external auditor on the audit firm’s internal quality control processes and procedures, such report to include any material issues raised by the most recent internal quality control review, or peer review, of the firm, or any governmental or professional authorities of the firm within the preceding five years, and any steps taken to deal with such issues;
(g) ensuring that the external auditor meets the rotation requirements for partners and staff assigned to the Company’s annual audit by receiving a report annually from the external auditors setting out the status of each professional with respect to the appropriate regulatory rotation requirements and plans to transition new partners and staff onto the audit engagement as various audit team members’ rotation periods expire;
(h) reviewing and discussing with management and the external auditor the annual audited and quarterly unaudited financial statements and related Management Discussion and Analysis (“MD&A”), including the appropriateness of the Company’s accounting policies, disclosures (including material transactions with related parties), reserves, key estimates and judgements (including changes or variations thereto) and obtaining reasonable assurance that the financial statements are presented fairly in accordance with IFRS and the MD&A is in compliance with appropriate regulatory requirements;
- 3 -
(i) reviewing and discussing with management and the external auditor major issues regarding accounting principles and financial statement presentation including any significant changes in the selection or application of accounting principles to be observed in the preparation of the financial statements of the Company and its subsidiaries;
(j) reviewing and discussing with management and the external auditor the external auditor’s written communications to the Audit Committee in accordance with generally accepted auditing standards and other applicable regulatory requirements arising from the annual audit and quarterly review engagements;
(k) reviewing and discussing with management and the external auditor all earnings press releases, as well as financial information and earnings guidance provided to analysts and rating agencies prior to such information being disclosed;
(l) reviewing the external auditor’s report to the shareholders on the Company’s annual financial statements;
(m) reporting on and recommending to the Board the approval of the annual financial statements and the external auditor’s report on those financial statements, the quarterly unaudited financial statements, and the related MD&A and press releases for such financial statements, prior to the dissemination of these documents to shareholders, regulators, analysts and the public;
(n) satisfying itself on a regular basis through reports from management and related reports, if any, from the external auditors, that adequate procedures are in place for the review of the Company’s disclosure of financial information extracted or derived from the Company’s financial statements that such information is fairly presented;
(o) overseeing the adequacy of the Company’s system of internal accounting controls and obtaining from management and the external auditor summaries and recommendations for improvement of such internal controls and processes, together with reviewing management’s remediation of identified weaknesses;
(p) reviewing with management and the external auditors the integrity of disclosure controls and internal controls over financial reporting;
(q) reviewing and monitoring the processes in place to identify and manage the principal risks that could impact the financial reporting of the Company and assessing, as part of its internal controls responsibility, the effectiveness of the over-all process for identifying principal business risks and report thereon to the Board;
(r) satisfying itself that management has developed and implemented a system to ensure that the Company meets its continuous disclosure obligations through the receipt of regular reports from management and the Company’s legal advisors on the functioning of the disclosure compliance system, (including any significant instances of non-compliance with such system) in order to satisfy itself that such system may be reasonably relied upon;
- 4 -
(s) resolving disputes between management and the external auditor regarding financial reporting;
(t) | establishing procedures for: |
(i) the receipt, retention and treatment of complaints received by the Company from employees and others regarding accounting, internal accounting controls or auditing matters and questionable practises relating thereto, and
(ii) the confidential, anonymous submission by employees of the Company of concerns regarding questionable accounting or auditing matters;
(u) reviewing and approving the Company’s hiring policies with respect to partners or employees (or former partners or employees) of either a former or the present external auditor;
(v) pre-approving all non-audit services to be provided to the Company or any subsidiaries by the Company’s external auditor;
(w) overseeing compliance with regulatory authority requirements for disclosure of external auditor services and Audit Committee activities;
(x) | establishing procedures for: |
(i) reviewing the adequacy of the Company’s insurance coverage, including the Directors’ and Officers’ insurance coverage;
(ii) reviewing activities, organizational structure, and qualifications of the Chief Financial Officer (“CFO”) and the staff in the financial reporting area and ensuring that matters related to succession planning within the Company are raised for consideration at the Board;
(iii) obtaining reasonable assurance as to the integrity of the Chief Executive Officer (“CEO”) and other senior management and that the CEO and other senior management strive to create a culture of integrity throughout the Company;
(iv) reviewing fraud prevention policies and programs, and monitoring their implementation;
(v) reviewing regular reports from management and others (e.g., external auditors, legal counsel) with respect to the Company’s compliance with laws and regulations having a material impact on the financial statements including:
- 5 -
(A) | tax and financial reporting laws and regulations; |
(B) | legal withholding requirements; |
(C) | environmental protection laws and regulations; |
(D) | other laws and regulations which expose directors to liability; and |
4.2 A regular part of Audit Committee meetings involves the appropriate orientation of new members as well as the continuous education of all members. Items to be discussed include specific business issues as well as new accounting and securities legislation that may impact the organization. The Chair of the Audit Committee will regularly canvass the Audit Committee members for continuous education needs and in conjunction with the Board education program, arrange for such education to be provided to the Audit Committee on a timely basis.
4.3 On an annual basis the Audit Committee shall review and assess the adequacy of this charter taking into account all applicable legislative and regulatory requirements as well as any best practice guidelines recommended by regulators or stock exchanges with whom the Company has a reporting relationship and, if appropriate, recommend changes to the Audit Committee charter to the Board for its approval.
5. | MEETINGS |
5.1 The quorum for a meeting of the Audit Committee is a majority of the members of the Audit Committee.
5.2 The Chair of the Audit Committee shall be responsible for leadership of the Audit Committee, including scheduling and presiding over meetings, preparing agendas, overseeing the preparation of briefing documents to circulate during the meetings as well as pre-meeting materials, and making regular reports to the Board. The Chair of the Audit Committee will also maintain regular liaison with the CEO, CFO, and the lead external audit partner.
5.3 The Audit Committee will meet in camera separately with each of the CEO and the CFO of the Company at least annually to review the financial affairs of the Company.
5.4 The Audit Committee will meet with the external auditor of the Company in camera at least once each year, at such time(s) as it deems appropriate, to review the external auditor’s examination and report.
5.5 The external auditor must be given reasonable notice of, and has the right to appear before and to be heard at, each meeting of the Audit Committee.
5.6 Each of the Chair of the Audit Committee, members of the Audit Committee, Chair of the Board, external auditor, CEO, CFO or secretary shall be entitled to request that the Chair of the Audit Committee call a meeting which shall be held within 48 hours of receipt of such request to consider any matter that such individual believes should be brought to the attention of the Board or the shareholders.
6. | REPORTS |
6.1 The Audit Committee will report, at least annually, to the Board regarding the Audit Committee’s examinations and recommendations.
6.2 The Audit Committee will report its activities to the Board to be incorporated as a part of the minutes of the Board meeting at which those activities are reported.
7. | MINUTES |
7.1 The Audit Committee will maintain written minutes of its meetings, which minutes will be filed with the minutes of the meetings of the Board.
8. ANNUAL PERFORMANCE EVALUATION
8.1 The Board will conduct an annual performance evaluation of the Audit Committee, taking into account the charter, to determine the effectiveness of the Committee.
Exhibit 99.9
NOTICE DECLARING INTENTION TO BE QUALIFIED UNDER NATIONAL
INSTRUMENT 44-101
SHORT FORM PROSPECTUS DISTRIBUTIONS (“NI 44-101”)
December 28, 2019
To: |
Alberta Securities Commission
British Columbia Securities Commission Quebec Securities Commission |
Protech Home Medical Corp. (the “Issuer”) intends to be qualified to file a short form prospectus under NI 44-101. The Issuer acknowledges that it must satisfy all applicable qualification criteria prior to filing a preliminary short form prospectus. This notice does not evidence the Issuer’s intent to file a short form prospectus, to enter into any particular financing or transaction or to become a reporting issuer in any jurisdiction. This notice will remain in effect until withdrawn by the Issuer.
PROTECH HOME MEDICAL CORP. | ||
Per: | (signed) “Gregory Crawford” | |
Gregory Crawford | ||
Chief Executive Officer |
Exhibit 99.10
PROTECH HOME MEDICAL CORP.
ANNUAL INFORMATION FORM
for the year ended September 30, 2019
January 20, 2020
TABLE OF CONTENTS
CAUTION REGARDING FORWARD-LOOKING STATEMENTS | 1 | |
CURRENCY | 2 | |
CORPORATE STRUCTURE | 2 | |
Name, Address and Incorporation | 2 | |
Intercorporate Relationships | 3 | |
GENERAL DEVELOPMENT OF THE BUSINESS | 1 | |
Fiscal Year Ended September 30, 2017 | 1 | |
Fiscal Year Ended September 30, 2018 | 1 | |
Fiscal Year Ended September 30, 2019 | 2 | |
Developments Subsequent to the financial year ended September 30, 2019 | 3 | |
Significant Acquisitions During 2019 | 3 | |
DESCRIPTION OF THE BUSINESS | 3 | |
Company Overview | 3 | |
Business Objective | 3 | |
Key Performance Drivers | 4 | |
Subsidiaries | 4 | |
Cycles | 6 | |
Economic Dependence | 6 | |
Changes to Contracts | 7 | |
Employees | 7 | |
Foreign Operations | 7 | |
Business in the Upcoming Year | 7 | |
RISK FACTORS | 7 | |
DIVIDENDS | 14 | |
CAPITAL STRUCTURE | 14 | |
Common Shares | 14 | |
Options | 15 | |
Restricted Share Units/Deferred Share Units | 16 | |
Debentures | 17 | |
MARKET FOR SECURITIES | 17 | |
Trading Price and Volume | 17 | |
Prior Sales | 18 | |
ESCROWED SECURITIES AND SECURITIES SUBJECT TO CONTRACTUAL RESTRICTION ON TRANSFER | 18 | |
DIRECTORS AND OFFICERS | 18 | |
Name, Occupation and Security Holding (as of the date hereof) | 18 | |
Biographical Information | 19 | |
Cease Trade Orders, Bankruptcies, Penalties or Sanctions | 20 | |
Conflicts of Interest | 21 | |
Advance Notice Provisionons | 21 | |
LEGAL PROCEEDINGS AND REGULATORY ACTIONS | 21 | |
Legal Proceedings | 21 | |
Regulatory Actions | 22 | |
INTEREST OF MANAGEMENT AND OTHERS IN MATERIAL TRANSACTIONS | 22 |
- 2 -
CAUTION REGARDING FORWARD-LOOKING STATEMENTS
This Annual Information Form (“AIF”) contains “forward-looking information” within the meaning of Canadian securities legislation and “forward-looking statements” within the meaning of applicable securities legislation, including the United States Private Securities Litigation Reform Act of 1995. Any statements that express, or involve discussions as to, expectations, beliefs, plans, objectives, assumptions or future events or performance are not historical facts and may be forward-looking and may involve estimates, assumptions and uncertainties which could cause actual results or outcomes to differ materially from those expressed in the forward-looking statements. These forward-looking statements are made as of the date of this AIF or as of the date of the applicable document from which they are incorporated by reference.
Forward-looking statements relate to future events or future performance and reflect the expectations or beliefs of management of Protech Home Medical Corp. (formerly Patient Home Monitoring Corp.) (the “Company”) regarding future events, and include, but are not limited to, statements with respect to: operating results; profitability; financial condition and resources; anticipated needs for working capital; liquidity; capital resources; capital expenditures; milestones; licensing milestones; information with respect to future growth and growth strategies; anticipated trends in our industry; our future financing plans; timelines; currency fluctuations; government regulation; unanticipated expenses; commercial disputes or claims; limitations on insurance coverage; and availability of cash flow to fund capital requirements.
Forward-looking information is based on the reasonable assumptions, estimates, analysis and opinions of the Company’s management made in light of its experience and its perception of trends, current conditions and expected developments, as well as other factors that management believes to be relevant and reasonable in the circumstances at the date that such statements are made, but which may prove to be incorrect. The Company believes that the assumptions and expectations reflected in such forward-looking information are reasonable.
In certain cases, forward-looking statements can be identified by the use of words such as “plans”, “expects” or “does not expect”, “is expected”, “budget”, “potential”, “scheduled”, “estimates”, “forecasts”, “intends”, “anticipates” or “does not anticipate”, or “believes”, or variations of such words and phrases or statements that certain actions, events or results “will”, “may”, “could”, “would”, “might” or “will be taken”, “occur” or “be achieved” or the negative of these terms or comparable terminology. By their very nature, forward-looking statements require the Company to make assumptions and are subject to known and unknown risks, uncertainties and other factors which may cause the actual results, performance or achievements of the Company to be materially different from any future results, performance or achievements expressed or implied by the forward-looking statements. A variety of material factors include, among others: credit risks, market risks (including those related to equity, commodity, foreign exchange and interest rate markets), liquidity risks, operational risks (including those related to technology and infrastructure), and risks relating to reputation, insurance, strategy, regulatory matters, legal matters, environmental matters and capital adequacy. Examples of such risk factors include: the Company may be subject to significant capital requirements and operating risks; changes in law, the ability to implement business strategies, growth strategies and pursue business opportunities; state of the capital markets; the availability of funds and resources to pursue operations; decline of reimbursement rates; dependence on few payors; possible new drug discoveries; a novel business model; dependence on key suppliers; granting of permits and licenses in a highly regulated business; competition; difficulty integrating newly acquired businesses; low profit market segments; disruptions in or attacks (including cyber-attacks) on information technology, internet, network access or other voice or data communications systems or services; the evolution of various types of fraud or other criminal behaviour; the failure of third parties to comply with their obligations; the impact of new and changes to, or application of, current laws and regulations; the overall difficult litigation environment, including in the United States; increased competition; changes in foreign currency rates; loss of foreign private issuer status; risks relating to the deterioration of global economic conditions; increased funding costs and market volatility due to market illiquidity and competition for funding; critical accounting estimates and changes to accounting standards, policies, and methods; and the occurrence of natural and unnatural catastrophic events and claims resulting from such events, as well as other general economic, market and business conditions, amongst others, as well as any other risk factors detailed from time to time in the Company’s audited annual financial statements and the Company’s management’s discussion and analysis (“MD&A”). Although the Company has attempted to identify important factors that could cause actual actions, events or results to differ materially from those described in forward-looking statements, there may be other factors that cause actions, events or results not to be as anticipated, estimated or intended. The Company provides no assurance that forward-looking statements will prove to be accurate, as actual results and future events could differ materially from those anticipated in such statements. The Company does not intend, and do not assume any obligation, to update any forward-looking statements, other than as required by applicable securities laws.
- 2 - |
These forward-looking statements are based on the reasonable beliefs, expectations and opinions of management of the Company as of the date of this AIF. Although the Company has attempted to identify important factors that could cause actual actions, events or results to differ materially from those contained in forward-looking information, there may be other factors that cause actions, events or results not to be as anticipated, estimated or intended. There is no assurance that such information will prove to be accurate, as actual results and future events could differ materially from those anticipated in such information. Accordingly, readers should not place undue reliance on forward-looking information or forward-looking statements. The Company does not intend, and does not assume any obligation, to update any forward-looking information or forward-looking statements, except as, and to the extent required by, applicable securities laws.
CURRENCY
Unless otherwise indicated herein, references to “$”, “$CDN” or “Canadian dollars” are to Canadian dollars, and references to “US$” or “U.S. dollars” are to United States dollars.
CORPORATE STRUCTURE
Name, Address and Incorporation
The Company was incorporated under the Business Corporations Act (Alberta) on March 5, 1997 under the name 730285 Alberta Inc. and changed its name to VF Capital Ltd. on June 19, 1997, and to Canadian Dental Partners Inc. on August 9, 1999, and to International Health Partners Inc. (“IHP”) on January 25, 2001. Pursuant to a reverse take-over transaction completed on June 1, 2010 by way of a three cornered amalgamation between 0871455 B.C. Ltd., PHM DME Healthcare Inc. (“PHM/DME”) and IHP (the “RTO Transaction”), IHP acquired all of the issued and outstanding shares in the capital of PHM/DME. IHP acquired all of the issued and outstanding shares of Stancap Holdings I Limited (“Stancap”) concurrent with the RTO Transaction (the “SHL Share Exchange”). Upon completion of the RTO Transaction and the SHL Share Exchange, on June 1, 2010, IHP changed its name to Patient Home Monitoring Corp. (“PHM”), as the Company was then called. Pursuant to a Certificate of Continuance filed on December 30, 2013, the Company changed its jurisdiction of governance by continuing from Alberta into British Columbia.
On December 21, 2017, concurrently, but not in connection with, the closing of the Arrangement (as further described below), the Company completed an amalgamation, by way of vertical short-form amalgamation under the Business Corporations Act (British Columbia) (the “BCBCA”), its wholly owned subsidiary, Stancap, (the “Amalgamation”). The Company is the continuing entity as a result of the Amalgamation and maintained its name as Patient Home Monitoring Corp. Pursuant to the Amalgamation, all of the issued and outstanding common shares of Stancap were cancelled, and the assets, obligations and liabilities of Stancap continued as the assets, obligations and liabilities of the Company. Where the term “Company” is used herein in the context of describing the Company’s assets and business, it may include its predecessor, PHM, prior to completion of the Amalgamation, as the context requires. When the term “Common Shares” is used herein, it may include the shares in the capital of the Company’s predecessor, PHM, prior to completion of the Amalgamation, as the context requires. On May 4, 2018, the Company changed its name from PHM to Protech Home Medical Corp.
Trading of the consolidated shares of PHM upon completion of the RTO Transaction commenced on the TSX Venture Exchange (the “TSX-V”) on June 8, 2010 under the stock symbol “PHM”.
Following completion of the Arrangement, the shares of the Company commenced trading on the TSX-V on December 22, 2017 under the stock symbol “PHM”. Concurrent with the completion of the Consolidation (as defined below), the Company’s stock symbol was changed to “PTQ”.
- 3 - |
On December 31, 2018, the Company effected a consolidation (the “Consolidation”) of the common shares in the capital of the Company (each, a “Common Share”) on the basis of one (1) post-Consolidation Common Share for every five (5) pre-Consolidation Common Shares.
On May 4, 2018, the Company changed its name from “Patient Home Monitoring Corp.” to “Protech Home Medical Corp.”.
The Company’s head office is located at 1019 Town Drive, Wilder, Kentucky 41076, and its registered office is located at 2800 Park Place, 666 Burrard Street, Vancouver, British Columbia V6C 2Z7.
Intercorporate Relationships
The following chart illustrates the Company’s corporate structure, including details of the jurisdiction of formation of each subsidiary.
- 4 - |
GENERAL DEVELOPMENT OF THE BUSINESS
Fiscal Year Ended September 30, 2017
On January 11, 2017, the Company entered into an arrangement agreement (the “Arrangement Agreement”), as amended on October 31, 2017, with its then wholly-owned subsidiary, Viemed Healthcare, Inc. (“Viemed”), pursuant to which it proposed to complete a court approved plan of arrangement (the “Arrangement”) under the BCBCA whereby the Company would spin-out its then wholly-owned sleep management business, being the Sleep Subsidiaries, to be a newly formed non-affiliated company. Further details in respect of the Arrangement are set out below.
On January 11, 2017, the Company and Viemed entered into an asset purchase agreement (the “Asset Purchase Agreement”), as amended on October 31, 2017, and PHM Logistics Corporation (“PHM Logistics”), an indirect wholly-owned subsidiary of the Company, and Viemed, Inc. (“Viemed Holdco”), a company existing under the laws of the State of Delaware and a wholly-owned subsidiary of PHM Logistics, entered into a share purchase agreement (the “Share Purchase Agreement”, and, together with the Asset Purchase Agreements, the “Purchase and Sale Agreements”), as amended, pursuant to which the Company and Viemed agreed to affect a reorganization. Further details in respect of the reorganization are set out below.
Fiscal Year Ended September 30, 2018
Arrangement
At an annual and special meeting of the Company’s holders of Common Shares (the “Shareholders”) and holders of options (each, an “Option”) to purchase Common Shares (the “Optionholders”) held on December 15, 2017 (the “Meeting”), the Shareholders and Optionholders voted to approve, by 99.992% of the votes cast, the Arrangement between the Company and Viemed.
On December 20, 2017, the Company received the final order of the Supreme Court of British Columbia approving the Arrangement. On December 21, 2017, the Company completed the Arrangement under the provisions of Division 5 of Part 9 of the BCBCA, pursuant to which the Company completed a spin-out of Viemed pursuant to the Arrangement Agreement.
As a result of the Arrangement, among other things, the Shareholders as of close of business on December 21, 2017 received one new Common Share (each, a “New PHM Share”) and one-tenth of one common share in the capital of Viemed (the “Viemed Shares”) for each Common Share held by such Shareholder immediately before the completion of the Arrangement (the “Effective Time”). Also in connection with the Arrangement: (a) for each Option held, each Optionholder that remained employed or engaged by the Company upon completion of the Arrangement received one new Option to purchase from the Company one New PHM Share (each, a “New PHM Option”) and each Optionholder employed or engaged by Viemed received one New PHM Option (which expired on March 22, 2018) and one-tenth of one option to purchase from Viemed one Viemed Share; and (b) for each common share purchase warrant to purchase Common Shares of the Company (each, a “Warrant”) held, each warrantholder received one Warrant to purchase from the Company one New PHM Share and one-tenth of one warrant to purchase from Viemed one Viemed Share.
As a result of the Arrangement, the Company’s business separated into two companies:
· | the Company, a Durable Medical Equipment company that specializes in delivering and servicing home-based medical equipment, including oxygen therapy, sleep apnea treatment and mobility equipment; and |
· | Viemed, a provider of equipment and home therapy to service patients with various respiratory diseases including Chronic Obstructive Pulmonary Disorder and Chronic Respiratory Failure and other neuromuscular diseases. |
- 2 - |
The description of the Arrangement Agreement, both above and elsewhere in this AIF, is a summary only, is not exhaustive and is qualified in its entirety by reference to the terms of the Arrangement Agreement, which may be found under the Company’s profile on SEDAR at www.sedar.com.
Reorganization
Immediately before the completion of the Arrangement, in accordance with the terms of the Purchase and Sale Agreements, the Company and Viemed affected the reorganization whereby: (i) PHM Logistics transferred all of its equity interests in Sleep Management, L.L.C. and Home Sleep Delivered, L.L.C. (together, the “Sleep Subsidiaries”), (ii) all of the common stock in the authorized capital of Viemed Holdco (the “Viemed Holdco Shares”) were transferred to the Company through a series of distributions by the Company’s wholly-owned subsidiaries to their direct shareholders, with the final distribution to the Company as a return of paid-up capital; and (iii) the Company contributed to Viemed the Viemed Holdco Shares on an “as is, where is” basis in exchange for all of the issued and outstanding Viemed Shares.
The description of the Purchase and Sale Agreements, both above and elsewhere in this AIF, is a summary only, is not exhaustive and is qualified in its entirety by reference to the terms of such agreements, which may be found under the Company’s profile on SEDAR at www.sedar.com.
Name Change
On May 4, 2018, the Company changed its name from Patient Home Monitoring Corp. to Protech Home Medical Corp. as part of the Company’s makeover.
In September 2018, the Company completed the acquisition of Coastal Med Tech Inc. (“CMT”), a top provider of respiratory services to patients in the Northeast market where the Company’s Black Bear Medical division operates.
Fiscal Year Ended September 30, 2019
On November 2, 2018, the Company completed a bought deal private placement offering with Beacon Securities Limited (“Beacon”), whereby Beacon purchased 28,248,000 Common Shares of the Company at a price of $0.12 per Common Share (the “Issue Price”), for gross proceeds to the Company of $3,389,760, which included 3,248,000 Common Shares issued as a result of the partial exercise of the over-allotment option. The Company also completed a non-brokered private placement of Common Shares of the Company at the Issue Price with insiders for gross proceeds to the Company of $1,100,000.
In the first fiscal quarter of 2020, the period ending December 31, 2018, the Company completed the acquisitions of Riverside Medical, Inc. (“Riverside Medical”) and Central Oxygen, Inc. (“Central Oxygen”). Riverside Medical is a provider of superior home respiratory services and equipment throughout West Tennessee, Southern Middle Tennessee and Northern Mississippi. The Riverside Medical acquisition was the Company’s first entry into the State of Tennessee, which neighbors the Company’s two largest business units and gave it immediate access to the insurance contracts necessary to serve patients within the state. Central Oxygen is also focused on the respiratory business and is located in up-state Indiana. The acquisition allowed the Company to expand its current operations in Indiana from a geographic perspective and brought additional insurance contracts into the Company’s domain.
On March 7, 2019, he Company completed a bought deal private placement of 8.0% unsecured convertible debentures (the “2019 Debentures”), through a syndicate of underwriters led by Beacon, and including Canaccord Genuity Corp. and Haywood Securities Inc., for gross proceeds to the Company of $15 million, including the full exercise of the underwriters' option. The 2019 Debentures bear interest from the date of closing at a rate of 8.0% per annum, payable semi-annually in arrears on the last day of June and December in each year and will mature on March 7, 2024 (the “Maturity Date”). The principal amount of the 2019 Debentures are convertible into Common Shares at the option of the holder at any time prior to the close of business on the last business day immediately preceding the Maturity Date at a conversion price of $1.30 per Common Share, subject to certain acceleration provisions.
- 3 - |
On April 30, 2019 the Company redeemed its 7.5% non-convertible unsecured subordinated debentures due December 31, 2019 (the “2014 Debentures”), representing a redemption in full of all of the currently outstanding 2014 Debentures.
On May 3, 2019, the Company discovered it was subject to a cyberscam breach of its email system. The unlawful intrusion into one employee’s account, led to fraudulent banking information being relayed regarding a planned wire transfer of CAD $9.2 million toward the redemption of the Company’s 2014 Debentures. In early September, 2019, CAD$8.6 million of the misappropriated funds pursuant to the cyberscam incident were returned to the Company by the bank of the perpetrator pursuant to a final Garnishee Order Absolute from a Court of Hong Kong.
In July 2019, the Company sold substantially all of the assets of its only non-core asset, wholly-owned Patient Home Monitoring, Inc. (“PHM Inc.”). The cash consideration at close was approximately CAD$4.5 million. PHM Inc. accounted for approximately less than 5% of total consolidated revenues and was no longer consistent with the corporate initiatives of the Company.
Developments Subsequent to the financial year ended September 30, 2019
In October 2019, the Company completed the acquisition of Cooley Medical Equipment, Inc. (“CME”), a company based in Kentucky. CME is a leader and top provider of respiratory services in Eastern and Central Kentucky with six locations that, when combined with the Company’s current operations, will significantly expand the Company’s geographical footprint. In December 2019, the Company completed the acquisition of Acadia Medical, Inc. (“AMI”), a company based in Maine. AMI is a leader and top provider of respiratory services in the State of Maine. It currently has four locations and will allow Company to further expand its geographical footprint and provide a larger number of services in the State of Maine.
Significant Acquisitions During 2019
During 2018 the Company did not complete any significant acquisitions during its most recently completed financial year for which disclosure is required under Part 8 of National Instrument 51-102 – Continuous Disclosure Obligations ( “NI 51-102”) of the Canadian Securities Administrators.
DESCRIPTION OF THE BUSINESS
Company Overview
The Company’s main revenue source is in providing in-home monitoring equipment and supplies, providing durable medical equipment and providing disease management services to patients in the United States.
Business Objective
The Company provides in-home monitoring and disease management services for patients in the United States healthcare market. The Company seeks to continue to expand its offerings to include the management of several chronic disease states focusing on patients with heart or pulmonary disease, sleep apnea, reduced mobility and other chronic health conditions requiring home-based services in the United States. The initial service line includes providing in-home monitoring equipment, supplies and services to patients in the United States. The primary business objective of the Company is to create shareholder value by continuing to offer a broader range of services to patients in need of in-home monitoring and chronic disease management, as well as acquiring other companies operating in the United States healthcare service and product sectors. The Company’s organic growth strategy is aggregate patients in existing or complimentary markets, through both acquisitions and taking market share directly from competitors, as well as its technology investment plans, whereby the Company plans to leverage technology to increase patient compliance by making ongoing training and patient follow up easier on the patient and improve the speed and ease of equipment and device delivery and set-up.
- 4 - |
Key Performance Drivers
The Company’s revenue lines are based on fulfilling prescriptions for services and products for patients that suffer from chronic illness. The growing niche market of home monitoring provides significant opportunity to garner market share, and may require the ongoing deployment of up-front capital to purchase monitoring and treatment equipment. The Company is currently well positioned to acquire the equipment necessary to grow its annuity stream businesses.
Subsidiaries
The business of each of the Company’s material subsidiaries is discussed below.
PHM Logistics Corporation (formerly Healthcare Logistics Corporation)
The PHM Logistics platform provides the Company with supply chain management, regulatory device reporting and home delivery of healthcare devices. As PHM Logistics grows to serve an increasing volume of patients, there is increased complexity in ordering, managing and delivering both devices and consumables to patients in numerous locations testing on different schedules. PHM Logistics’ focus is to continue and improve the logistics support for the Company. In order to support the Company’s numerous acquisitions, PHM Logistics has become the holding company for several of the Company’s acquired subsidiaries.
Resource Medical Group, LLC and Resource Medical Group of Charleston, LLC
Resource Medical Group, LLC and Resource Medical Group of Charleston, LLC (collectively, “Resource Medical”) are South Carolina limited liability companies, acquired by the Company in January 2014, which offer an array of durable medical equipment focused on pulmonary disease services, home-based sleep apnea and chronic obstructive pulmonary disease (“COPD”) treatments, as well as home-based healthcare logistics and services.
Resource Medical has locations in North Charleston, Duncan, Myrtle Beach, Columbia and Beaufort with developed patient databases and relationships. Resource Medical have a strong presence in South Carolina and an expansive product offering, including the following: bariatric equipment, bathroom safety products, Bi-level PAP (bilevel positive airway pressure), canes/crutches, continuous positive airway pressure (“CPAP”) and CPAP masks and accessories, hospital beds, humidifiers, nebulizer and compressors, oxygen concentrator, patient lifts, walkers, wheelchairs, and products for wound care. The demand for these items is expected to grow as the United States population continues to age and chronic diseases among those aged 65 and over continue to increase.
Care Medical Partners LLC
Care Medical Partners LLC (“CMP”), which was acquired by the Company in June 2014 and consists of Care Medical of Athens, Inc., Care Medical Atlanta, LLC, Care Medical of Augusta, LLC, Care Medical of Gainesville, LLC, and Care Medical Savannah, LLC, focuses on CPAP and sleep apnea equipment and supplies, mobility equipment, oxygen and other related equipment and medical supplies. Licensed to do business in Georgia and South Carolina and located throughout Georgia, CMP has added to the Company’s product and service line in a key location, increasing access to patients. CMP has locations in Athens, Gainesville, Augusta, Duluth, and Savannah to reach patients across Georgia also has a developed patient database and relationships. Providing both home and hospital delivery, CMP provides medical supplies, medical equipment in addition to mobility equipment and respiratory equipment.
Black Bear Medical, Inc., Black Bear Medical North, Inc. and Black Bear Medical NH, Inc.
In January 2015, the Company acquired Black Bear Medical, Inc., Black Bear Medical North, Inc. and Black Bear Medical NH, Inc. (collectively, “BBM”), which are licensed to do business in Maine and New Hampshire. BBM specializes in home-based healthcare services, including mobility solutions, and other durable medical equipment. These entities have widened the Company’s reach to upper east coast patients in Maine and New Hampshire, strengthening its geographic presence and increasing its offerings.
- 5 - |
West Home Healthcare, Inc.
The Company acquired West Home Healthcare, Inc. (“WHHC”), a company based and licensed in Virginia in March 2015. WHHC is a company focused on providing home-based healthcare services, including mobility solutions for the home. WHHC has served tens of thousands of patients in Virginia offering home accessibility products and services, including bath safety and patient lifts. As patients become immobile, they require more than a power mobility wheelchair. They also need home modifications to assist with their chronic conditions. WHHC added an additional product line of services for patients with mobility-related conditions, which has good cross-sell potential with the Company’s patients in South Carolina, Georgia, Florida, Maine and New Hampshire.
Legacy Oxygen & Home Care Equipment, LLC
The Company acquired Legacy Oxygen & Home Care Equipment, LLC (“Legacy”) in May 2015. Legacy is a regionally focused company, licensed to do business in Kentucky, Tennessee and Illinois, offering home-based medical equipment and services for patients with chronic pulmonary conditions across multiple locations in Kentucky.
Patient-Aids, Inc.
The Company acquired Patient-Aids, Inc. (“Patient-Aids”), a high growth and high margin, profitable Ohio-based company focused on providing home-based healthcare services. Patient-Aids has, since 1982, been a dominant business in their region being licensed to do business in Ohio, Kentucky and Indiana. Its product lines and services focus on treating patients with chronic power mobility conditions, respiratory conditions, and patients requiring traditional durable medical home based equipment.
Cooley Medical Equipment, Inc.
CME is a participating Medicare provider that provides (i) nebulizers, oxygen concentrators, and CPAP and BiPAP units, (ii) traditional and non-traditional durable medical respiratory equipment and services, and (iii) non-invasive ventilation equipment, supplies and services. CME presently has six locations based in Eastern and Central Kentucky. CME is considered one of Kentucky’s largest home medical equipment and medical service providers. The firm also has strong participation in a number of insurance plans including Medicare, Medicaid and private insurers Anthem, Humana and United Healthcare, as examples.
Acadia Medical Supply, Inc.
AMI is a participating Medicare provider that provides (i) power mobility equipment, vehicle lifts, nebulizers, oxygen concentrators, and CPAP and BiPAP units, (ii) traditional and non-traditional durable medical equipment respiratory and durable medical equipment and services, and (iii) non-invasive ventilation equipment and supplies. It currently has four locations and is well positioned to allow the Company to further expand its geographical footprint and provide a larger number of services in the State of Maine.
Specialized Skills and Knowledge
The Company employs a team of respiratory therapists to provide the services enumerated above. Each respiratory therapist is required to be state licensed, either as a Registered Respiratory Therapist and/or Certified Respiratory Therapist. The Company encourages and reimburse its respiratory therapists for pursuing the additional certification level of COPD Educator, which enhances the work that may be done with patients in and out of the hospital environment. Its clinical team manages patients that use its services that range from nebulizers to invasive ventilation.
The Company also employs a team of Assistive Technology Professionals (“ATP”) who provide customized mobility and bath safety equipment for patients. Its ATPs are certified through NRRTS (National Registry of Rehabilitation Technology Suppliers) and RESNA (Rehabilitation Engineering and Assistive Technology Society of North America). Part of the ATP team has gone further in their education to receive certifications that allow them to specialize in areas within complex rehabilitation.
The Company’s employees receive ongoing training that relates to the healthcare delivery system allowing the employees to have a complete understanding of the services that the Company provides to its patients.
- 6 - |
Competitive Conditions
The Company has physical operations in 10 states. The Company participates in a highly competitive market, which may become more competitive as new players enter. Certain competitors have vertically integrated manufacturing and services sectors of the market. While most of the DME distributor industry is fragmented into small regional players, there are some noteworthy companies that have an acquisitive strategy similar to the Company. Within these markets the nationally based companies such as Lincare, Apria, Rotech, Adapt Healthcare and Aerocare are the competitors that the Company faces more consistently.
New Products
The Company plans to expand service lines across each of its subsidiaries that does not have a complete service offering found in other subsidiaries. As an example, BBM does not currently offer any respiratory services but it does have the necessary certifications and/or state licensing to provide such services. The objective would allow BBM to provide these services to the same patient population that they currently serve for mobility care, but who have to go to another equipment provider to secure their respiratory needs.
The Company plans to investigate and consider additional services that would complement the services already offered by its subsidiaries that would serve the current patient population and/or help the Company break into new segments of the regional populations it covers.
Components
The Company has strong relationships with its suppliers and has gained a lot of purchasing power as a result of being a member of two purchasing groups (VGM and The MedGroup) that help secure very competitive pricing. It has quarterly business reviews with its top vendors and is an early adopter of their new product introductions. There are few manufacturers of equipment which can be used for home monitoring of patients on anticoagulants. The emerging nature of the market presents risks that vendors may not be able to provide equipment to satisfy demand. The Company participates in test pilots that help it understand what new technologies are available and will continue to do so in order to identify steps it may need to take to be the industry leader.
Cycles
The calendar year is influential throughout the American health system due to the need for most patients to meet their deductibles as part of their insurance plans. These deductibles are generally met in the second half of the year, unless there is an immediate need for the treatment prescribed.
The industry is also influenced by weather changes or events. When the weather turns cold, more respiratory needs are experienced. If significant weather events occur (such as hurricanes, massive tornadoes, etc.), it leads to a demand for replacement equipment. Unique situations can arise from a business unit branch. Two such examples come from the Company’s Prothrombin Time International Normalized Ratio (“PTINR”) business and BBM.
The Company’s fiscal Q1 tends to see a decrease in enrollments due to weather, office closings and holiday hours providing fewer opportunities to train patients. The demand is constant for testing; the availability of training of patients is impacted as described.
With complex rehabilitation, BBM typically sees the best reimbursement from September to February largely due to the involvement of school therapists and physician practices as their patient base expands with the beginning of the school year.
Economic Dependence
The Company earns revenues by seeking reimbursement from Medicare and private health insurance companies, with the Medicare program of the United States government being the primary entity making payments. If the Medicare program were to slow payments of the Company receivables for any reason, the Company would be adversely impacted.
- 7 - |
Changes to Contracts
The Centers for Medicare & Medicaid Services (“CMS”) policies of health insurance for Medicare in the United States may affect the amount of revenue the Company receives.
Employees
As at September 30, 2019, the Company had a total of 383 employees. In addition, the Company has staff augmentation arrangements with global partners.
Foreign Operations
As at the date hereof, the Company conducts all of its operations through its subsidiaries, which operate exclusively in the United States and together have a service coverage area of 10 states.
Business in the Upcoming Year
On the reimbursement front, the CMS oversees a competitive bidding program covering DME, the process in which a Medicare supplier provides DME products to Medicare beneficiaries. Pursuant to the CMS, beginning in 2021, a new competitive bidding process known as Round 2021 will be launched by the CMS, covering contracts running from January 1, 2021 to December 31, 2023. Bids for Round 2021 were to be submitted by September 2019. Results of providers selected for providing services is expected to be made public in 2020. As part of the bidding process CMS has announced an intention to introduce new reimbursement rates. The current trend in the healthcare industry is for health systems to opt for a bundled payment model for Medicare joint replacement patients. Comprehensive Care for Joint Replacement targets the most common inpatient procedures for Medicare beneficiaries such as hip and knee replacements. This provides an opportunity for providers like CMP, Resource Medical, Patient-Aids and BBM to contract with health systems directly to provide equipment to the patient with the hospital being the payer. This model is expected to remove the burden of documentation and claims processing for equipment and allow the provider to operate much more efficiently. It is expected that it would also provide opportunities to further strengthen the Company’s position in and further entrench it within the healthcare system and market in the United States. Additionally, Congress in the United States is reviewing a reverse in recent CMS cuts for oxygen and sleep related services that could potentially raise the profitability on these services.
The Patient Protection and Affordable Care Act (the “ACA”) and the insurance exchanges within many states has seen major insurers abandon the exchanges due to the poor results of obtaining the right mix of healthy and non-healthy patients into the exchange pools. This is driving costs up for the consumer and insurance agencies have reported huge losses. The positive comes from Medicare Advantage programs that continue to grow in popularity for people who are 65 years of age and older and can afford supplemental insurance that helps to cover the costs of their healthcare.
RISK FACTORS
The following major risk factors should be given special consideration when evaluating trends, risks and uncertainties relating to the Company’s business. Any of the following risk factors could cause circumstances to differ materially from those described in forward-looking statements relating to the Company, and could have a material adverse effect upon the Company, its business and future prospects. Although the following are major risk factors identified by management, they do not comprise a definitive list of all risk factors related to the Company. In addition, other risks and uncertainties not presently known by management could impair the Company and its business in the future.
- 8 - |
Future Sales of Shares by Existing Shareholders
Sales of a large number of the Common Shares in the public markets, or the potential for such sales, could decrease the trading price of the Common Shares and could impair the Company’s ability to raise capital through future sales of the Common Shares. The Company may from time to time have previously issued securities at an effective price per share which will be lower than the market price of the Common Shares. Accordingly, certain shareholders of the Company may have an investment profit in the Common Shares that they may seek to liquidate.
Market Price of the Shares
The Common Shares are currently listed and posted for trading on the TSX-V. Securities of small-cap and healthcare companies have experienced substantial volatility in the past, often based on factors unrelated to the financial performance or prospects of the companies involved. These factors include macroeconomic developments in North America and globally, and market perceptions of the attractiveness of particular industries. The price of the Common Shares is also likely to be significantly affected by short-term changes in cost of goods, or in financial condition or results of operations of the Company. Other factors unrelated to the performance of the Company that may have an effect on the price of the Common Shares include the following: the extent of analytical coverage available to investors concerning the business of the Company may be limited if investment banks with research capabilities do not follow the Company’s securities; lessening in trading volume and general market interest in the Company’s securities may affect an investor’s ability to trade significant numbers of the Common Shares; the size of the Company’s public float may limit the ability of some institutions to invest in the Company’s securities; and a substantial decline in the price of the Common Shares that persists for a significant period of time could cause the Company’s securities, if listed on an exchange, to be delisted from such exchange, further reducing market liquidity.
As a result of any of these factors, the market price of the Common Shares at any given point in time may not accurately reflect the long-term value of the Company. Securities class-action litigation often has been brought against companies following periods of volatility in the market price of their securities. The Company may in the future be the target of similar litigation. Securities litigation could result in substantial costs and damages and divert management’s attention and resources.
Dilution
The Company may require additional funds in respect of the further development of the Company’s business. If the Company raises funds by issuing additional equity securities, such financing will dilute the equity interests of its shareholders.
Limited History of Operations
The Company has a limited history of operations. There can be no assurance that the business of the Company and/or its subsidiaries will be successful and generate, or maintain, any profit.
Novel Business Model
Home monitoring of patients on anticoagulants is a relatively new business, making it difficult to predict market acceptance, development, expansion and direction. The home monitoring services to be provided by the Company represent a relatively new development in the United States healthcare industry. Accordingly, adoption by patients and physicians can require education, which can result in a lengthy sales cycle. The market may take time to develop. Physicians and/or patients may be slow to adopt new methods. The development of the Company’s home monitoring business is dependent on a number of factors. These factors include: the Company’s ability to differentiate the Company’s services from those of the Company’s competitors; the extent and timing of the acceptance of the Company’s services as a replacement for, or supplement to, traditional methods of servicing and monitoring patients; the effectiveness of the Company’s sales and marketing and engagement efforts with customers and their health plan participants; the Company’s ability to provide quality customer service, as perceived by patients and physicians.
Because the monitoring business is evolving, the Company may not be able to anticipate and adapt to the developing market. Moreover, the Company cannot predict with certainty the future growth rate or the ultimate size of the market.
- 9 - |
Reimbursement Rates May Decline
Reimbursement for services to be provided by the Company come primarily from Medicare and private health insurance companies. The reimbursement rates offered are outside the control of the Company. Reimbursement rates in this area, and much of the United States health care market in general, have been subject to continual reductions as health insurers and governmental entities attempt to control health care costs. The extent and timing of any reduction in reimbursement rates cannot be predicted by the Company.
Reductions in reimbursement rates can have a material impact on the profitability of the Company’s operations. A reduction in reimbursement may be unrelated to any concurrent decline in the cost of operations, thereby resulting in reduced profitability. The Company’s costs of operations could increase, but the cost increases may not be passed on to customers because reimbursement rates are set without regard to the cost of service.
Loss of Competitive Bids
On the reimbursement front, the CMS oversees a competitive bidding program covering DME, the process in which a Medicare supplier provides DME products to Medicare beneficiaries. Pursuant to the CMS, beginning in 2021, a new competitive bidding process known as Round 2021 will be launched by the CMS, covering contracts running from January 1, 2021 to December 31, 2023. It is possible that the Company may not be selected in some or all the Competitive Bidding Area (CBA) that is has bid for. It is also possible that the Company may not be selected for some or all of the product categories that it has bid more. Non-selection for CBA and/or product category may result in loss of revenue and referral sources.
Dependence Upon Relationships With Key Suppliers
There are few manufacturers of equipment which can be used for home monitoring of patients on anticoagulants. There is the possibility that a new meter will encounter difficulties or “bugs” when first sent to market, and that initial technical support costs may be higher than for more well-established meters. Even if the Company switches to other competing meters, they may also encounter technical difficulties or regulatory issues. The emerging nature of the market presents risks that suppliers may not be able to provide equipment to satisfy demand. Demand may outstrip supply, leading to equipment shortages. Conversely, incorrect demand forecasting could lead to excess inventory. The industry is subject to a high level of regulatory scrutiny, and government or manufacturer recalls could adversely affect the Company’s ability to provide monitoring services and achieve revenue targets.
Inadequate supply could impair the Company’s ability to attract new business and could create upward pricing pressure on equipment and supplies, adversely affecting margins for the Company. Several equipment manufacturers are pursuing a strategy of vertical integration, and should the Company ever need to order equipment from those manufacturers, such equipment may not be available on favourable terms.
Reliance Upon Few Payers
The Company earns revenues by seeking reimbursement from Medicare and private health insurance companies, with the Medicare program of the United States government being the primary entity making payments. If the Medicare program were to slow payments of the Company receivables for any reason, the Company would be adversely impacted. In addition, both governmental and private health insurance companies may seek ways to avoid or delay reimbursement, which could adversely affect cash flow and revenues for the Company.
Government Regulation
Some operations of the Company require certain licences and permits from the authorities in the United States. The ability of the Company and its subsidiaries to obtain, sustain or renew any such licences and permits on acceptable terms is subject to changes in regulations and policies and to the discretion of the applicable authorities or other governmental agencies. There is no guarantee that the Company will meet these conditions.
- 10 - |
The Company is subject to regulation from United States federal and state authorities. Regulatory action could disrupt the Company’s ability to provide services. Such regulatory action could come in the form of actions against manufacturers, unrelated to the Company’s conduct, or actions based upon the Company’s operation. Regulatory action could prevent or delay reimbursement for certain services.
There could also be legislative action that could adversely affect the Company’s business model, including, without limitation: a decision by the United States government to become the exclusive provider of health care services at some time in the future; changes in United States federal or state laws, rules, and regulations, including those governing the corporate practice of medicine, and fee splitting; and changes in the United States Anti-Kickback Statute and Stark Law and/or similar state laws, rules, and regulations. Conversely, budgetary problems in the United States could lead to reduced funding, substantial modification or elimination of Medicare programs, which would end reimbursement for many patients. There can be no assurance that new rules and regulations will not be enacted or that existing rules and regulations will not be applied in a manner which could limit or curtail the business of the Company. Amendments to current laws and regulations could have a substantial adverse impact on the Company.
CMS policies of health insurance for Medicare in the United States may affect the amount of revenue the Company receives. The Company is subject to risk that reimbursement rates for its services from both federal and private payers will decline over time. Reimbursement from federal programs is subject to constant regulatory review and increasing audits by federal authorities, the effect of which may be to increase costs of service and delay or affect reimbursement, which could negatively impact cash flow and/or revenue. Audits may be costly and time consuming, and could delay cash flow, even if the Company acted properly in all respects.
The policies of health insurance carriers in the United States may affect the amount of revenue the Company receives.
Highly Competitive Market
The industry in which the Company operations is a highly competitive market and may become more competitive as new players enter. Certain competitors will be subsidiaries or divisions of larger, much better capitalized companies. Certain competitors will have vertically integrated manufacturing and services sectors of the market. The Company may have less capital and may encounter greater operational challenges in serving the market. Better capitalized competitors may also be expected to borrow money or raise debt to purchase equipment more easily than the Company.
New Drug Discovery
Current anticoagulants have been on the market for many years. New pharmaceutical compounds could be discovered and approved for sale that do not require monitoring of coagulation levels in patients, making home monitoring unnecessary at some point in the future.
Technological advances in patient care, improved pharmaceutical products that do not require anticoagulation monitoring or with lesser side effects and technological advances in equipment or changes in patient management practices could severely reduce demand for the Company’s services. The United States Food and Drug Administration (“FDA”) has already approved three drugs where no anticoagulation monitoring is mandated, and there may be additional approvals in the future. In addition, the approved drugs may gain market share over time. There may also be advances in or FDA approval of medical devices designed to manage anticoagulation.
Low Profit Market Segments
Where the Company provides services to a patient who does not use a meter often or for an extended period of time, profitability may be unlikely in respect of that patient. Also, certain patients may have a personal preference to travel to a lab for testing rather than self-testing. In these cases, the Company may not have a meter with the patient long enough to recoup costs. Where the Company owns the meter, the failure of the patient to return the meter to the Company may impact profitability. Legal costs of bringing an action to obtain return of a meter may exceed the value of the machine, leading to losses with certain patient populations even under a favourable reimbursement environment.
- 11 - |
Foreign Subsidiaries
The Company conducts all of its operations through its United States subsidiaries. Therefore, to the extent of these holdings, the Company (directly and indirectly) is dependent on the cash flows of these subsidiaries to meet its obligations. The ability of such subsidiaries to make payments to their parent companies may be constrained by the following factors: the level of taxation, particularly corporate profits and withholding taxes, in the jurisdiction in which each subsidiary operates; and the introduction of exchange controls or repatriation restrictions or the availability of hard currency to be repatriated
Attraction and Retention of Key Personnel Including Directors
The Company has a small management team and the loss of a key individual or inability to attract suitably qualified staff could have a material adverse impact on the business of the Company. The Company may also encounter difficulties in obtaining and maintaining suitably qualified staff. The success of the Company depends on the ability of management to interpret market data correctly and to interpret and respond to economic, market and other conditions in order to locate and adopt appropriate opportunities. No assurance can be given that individuals with the required skills will continue employment with the Company or that replacement personnel with comparable skills can be found. The Company is dependent on the services of key executives, including the directors of the Company (the “Board”) and a small number of highly skilled and experienced executives and personnel. Due to the relatively small size of the Company, the loss of these persons or the Company’s inability to attract and retain additional highly skilled employees may adversely affect its business and future operations.
Growth Management
The Company may have difficulty identifying or acquiring suitable acquisition targets and maintaining the organic growth which is a significant aspect of its business model. If it is unable to manage growth, the Company may be unable to achieve its expansion strategy, which could adversely impact its earnings per share and its revenue and profits.
Dividends
The Company currently intends to retain future earnings to finance the operation, development and expansion of its business. The Company does not anticipate paying cash dividends on the Common Shares in the foreseeable future. Payment of future cash dividends, if any, will be at the discretion of the Board and will depend on the Company’s financial condition, results of operations, contractual restrictions, capital requirements, business prospects and other factors that the Board may consider relevant. Accordingly, investors will only see a return on their investment if the value of the Common Shares appreciates.
Discretion in the Use of Available Funds
Management has broad discretion concerning the use of the Company’s available funds as well as the timing of expenditures. As a result, shareholders and investors will be relying on the judgment of management for the application of the available funds of the Company. Management may use the available funds in ways that an investor may not consider desirable. The results and the effectiveness of the application of the available funds are uncertain. If the available funds are not applied effectively, the Company’s results of operations may suffer.
Potential Conflicts of Interest
There are potential conflicts of interest to which some of the directors and officers of the Company may be subject in connection with the operations of the Company and situations may arise where the directors and officers may be in direct competition with the Company. Conflicts of interest, if any, which arise may be subject to and be governed by procedures prescribed by the BCBCA which require a director or officer of a corporation who is a party to or is a director or an officer of or has a material interest in any person who is a party to a material contract or proposed material contract with the Company to disclose his interest and to refrain from voting on any matter in respect of such contract unless otherwise permitted under the BCBCA. Any decision made by any of such directors and officers involving the Company should be made in accordance with their duties and obligations to deal fairly and in good faith with a view to the best interests of the Company and its shareholders.
- 12 - |
Insurance and Uninsured Risks
The Company’s business is subject to a number of risks and hazards generally, including general liability. Such occurrences could result in damage to property, inventory, facilities, personal injury or death, damage to the properties of the Company, or the properties of others, monetary losses and possible legal liability.
The Company may be subject to product liability and medical malpractice claims, which may adversely affect its operations. The industry in which the Company operates is highly regulated, and it may be subject to regulatory scrutiny for violations of regulations and laws. The Company could be adversely affected by the time and cost involved with regulatory investigations even if it has operated in compliance with all laws. Investigations could also adversely affect the timely payment of receivables.
Although the Company maintains insurance to protect against certain risks in such amounts as it considers to be reasonable, its insurance will not cover all the potential risks associated with its operations. The Company may also be unable to maintain insurance to cover these risks at economically feasible premiums. Insurance coverage may not continue to be available or may not be adequate to cover any resulting liability. The Company might also become subject to liability which may not be insured against or which the Company may elect not to insure against because of premium costs or other reasons. Losses from these events may cause the Company to incur significant costs that could have a material adverse effect upon its financial performance and results of operations.
Additional Capital
The development and the business (including acquisitions) of the Company may require additional financing, which may involve high transaction costs, dilution to shareholders, high interest rates or unfavorable terms and conditions. Failure to obtain sufficient financing may result in the delay or indefinite postponement of its business plans. The initial primary source of funding available to the Company consists of equity financing. There can be no assurance that additional capital or other types of financing will be available if needed or that, if available, the terms of such financing will be favourable to the Company.
Loss of Foreign Private Issuer Status
The Company may lose its foreign private issuer status in the future, which could result in significant additional costs and expenses. As a foreign private issuer, as defined in Rule 3b-4 under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), the Company is currently exempt from certain of the provisions of the U.S. federal securities laws. For example, an issuer with total assets in excess of US$10 million and whose outstanding equity securities are held by 2,000 or more persons, or 500 or more persons who are not “accredited investors”, must register such securities as a class under the Exchange Act. However, as a foreign private issuer subject to Canadian continuous disclosure requirements, the Company may claim the exemption from registration under the Exchange Act provided by Rule 12g3-2(b) thereunder, even if these thresholds are exceeded. To be considered a foreign private issuer, the Company must satisfy a United States shareholder test (not more than 50% of the voting securities of a company must be held by residents of the United States) if any of the following disqualifying conditions apply: (i) the majority of the Company’s executive officers or directors are United States citizens or residents; (ii) more than 50 percent of the Company’s assets are located in the United States; or (iii) the Company’s business is administered principally in the United States. Based on information available as at March 31, 2019 (the last business day of the Company’s second fiscal quarter), the Company estimates that less than 10.0% of the Company’s outstanding voting securities are directly or indirectly held of record by residents of the United States. If the Company loses its status as a foreign private issuer, these regulations could apply and it could also be required to commence reporting on forms required of U.S. domestic companies, such as Forms 10-K, 10-Q and 8-K. It could also become subject to U.S. proxy rules, and certain holders of its equity securities could become subject to the insider reporting and “short swing” profit rules under Section 16 of the Exchange Act. In addition, any securities issued by the Company if it loses foreign private issuer status would become subject to certain rules and restrictions under the Securities Act of 1933, as amended, even if they are issued or resold outside the United States. Compliance with the additional disclosure, compliance and timing requirements under these securities laws would likely result in increased expenses and would require the Company’s management to devote substantial time and resources to comply with new regulatory requirements.
- 13 - |
United States Operations and Exchange Rate Fluctuations
All of the Company’s revenue is generated from operations in the United States. The Company is subject to a number of risks associated with its operations that may increase liability and costs and require significant management attention. These risks include:
§ | compliance with laws of the United States that apply to the Company’s United States operations, including lawful access, privacy laws and anti-corruption laws; |
§ | instability in economic or political conditions, including inflation, recession and political uncertainty; |
§ | potential adverse tax consequences; and |
§ | litigation in United States courts. |
In addition, the Company is exposed to foreign exchange risk as a result of substantially all of its revenue generating operations taking place in the United States and thus, revenues and expenses being earned and paid in United States dollars while the Company reports its financial statements in Canadian dollars. If the Canadian dollar appreciates relative to the United States dollar, the Company’s Canadian dollar expenses and revenues will decrease when translated from United States dollars for financial reporting purposes. Conversely, if the Canadian dollar depreciates relative to the United States dollar, the Company’s Canadian dollar expenses and revenues will increase when translated from United States dollars for financial reporting purposes. In addition, exchange rate fluctuations may affect the costs that the Company incurs in its operations. The appreciation of non-United States dollar currencies against the United States dollar can increase the cost of operations in United States dollar terms. Foreign exchange rate fluctuations may materially affect the Company’s financial condition and results of operations in future periods.
The Company will continue to translate the assets and liabilities of its United States dollar functional currency subsidiaries into Canadian dollars using exchange rates in effect at the end of each period. Revenue and expenses for these subsidiaries are translated using average exchange rates that approximate those in effect during the period. The Company will continue to maintain cash balances in both United States and Canadian dollars, but management anticipates that it will not purchase any securities or financial instruments to speculate on or hedge against a rise or fall in the value of the United States dollar.
Global Economy
Recent market events and conditions, including disruptions in the international credit markets and other financial systems and the deterioration of global economic conditions, could impede the Company’s access to capital or increase the cost of capital. Notwithstanding various actions by the United States and foreign governments, concerns about the general condition of the capital markets, financial instruments, banks, investment banks, insurers and other financial institutions caused the broader credit markets to deteriorate and stock markets to fluctuate substantially.
These disruptions in the current credit and financial markets have had a significant material adverse impact on a number of financial institutions and have limited access to capital and credit for many companies. These disruptions could, among other things, make it more difficult for the Company to obtain, or increase its cost of obtaining, capital and financing for its operations. Access to additional capital may not be available to the Company on terms acceptable to it, or at all.
- 14 -
Cybersecurity
The Company relies on digital and internet technologies to conduct and expand its operations, including reliance on information technology to process, transmit and store sensitive and confidential data, including protected health information, personally identifiable information, and proprietary and confidential business performance data. As a result, the Company and/or its customers are exposed to risks related to cybersecurity. Such risks may include unauthorized access, use, or disclosure of sensitive information, corruption or destruction of data, or operational disruption resulting from system impairment (e.g., malware). The Company’s operations depend, in part, on how well it protects networks, equipment, information technology systems and software against damage from a number of threats, including, but not limited to damage to hardware, computer viruses, hacking and theft. The Company’s operations also depend on the timely maintenance, upgrade and replacement of networks, equipment, information technology systems and software, as well as pre-emptive expenses to mitigate the risks of failures. A compromise of the Company’s information technology or confidential information, or that of the Company’s patients and third parties with whom the Company interacts, may result in negative consequences, including the inability to process patient transactions, reputational harm affecting patient and/or investor confidence, potential liability under privacy, security, consumer protection or other applicable laws, regulatory penalties and additional regulatory scrutiny, any of which could have a material adverse effect on the Company’s business, financial position, results of operations or cash flows. As the Company has access to sensitive and confidential information, including personal information and personal health information, and since the Company may be vulnerable to material security breaches, theft, misplaced, lost or corrupted data, programming errors, employee errors and/or malfeasance (including misappropriation by departing employees), there is a risk that sensitive and confidential information, including personal information and personal health information, may be disclosed through improper use of Company systems, software solutions or networks or that there may be unauthorized access, use, disclosure, modification or destruction of such information. The Company’s ongoing risk and exposure to these matters is partially attributable to the evolving nature of these threats. As a result, cybersecurity and the continued development and enhancement of controls, processes and practices designed to protect systems, computers, software, data and networks from attack, damage, malfunction, human error, technological error or unauthorized access is a priority. As cyber threats continue to evolve, the Company may be required to expend additional resources to continue to modify or enhance protective measures or to investigate and remediate any security vulnerabilities.
DIVIDENDS
As of the date of this AIF, the Company has not paid any dividends and has no current intention to declare dividends on the Common Shares in the foreseeable future. Any decision to pay dividends on the Common Shares in the future will be at the discretion of the Board and will depend on, among other things, the Company’s results of operations, contractual restrictions, capital requirements, business prospects and other factors that the Board may consider relevant.
CAPITAL STRUCTURE
The Company is authorized to issue an unlimited number of Common Shares, an unlimited number of first preferred shares (each, a “First Preferred Share”) without par value, and an unlimited number of second preferred shares (each, a “Second Preferred Share”) without par value.
Common Shares
As of September 30, 2019, and as of the date hereof, there were 83,589,029 Common Shares issued and outstanding as fully paid and non-assessable.
All of the Common Shares are of the same class and, once issued, rank equally as to dividends, voting powers and participation in assets and in all other respects, on liquidation, dissolution or winding up of the Company, whether voluntary or involuntary, or any other distribution of the assets of the Company among its shareholders for the purpose of winding up its affairs after the Company has paid out its liabilities. The issued Common Shares are not subject to call or assessment by the Company nor are there any pre-emptive, conversion, exchange, redemption or retraction rights attaching to the Common Shares.
All registered holders of Common Shares are entitled to receive notice of any general or special meeting to be convened by the Company. At any general or special meeting, subject to the restrictions on joint registered owners of Common Shares, each holder of Common Shares is entitled to one vote per share of which it is the registered owner and may exercise such votes either in person or by proxy. Otherwise, on a show of hands every Shareholder who is present in person and entitled to vote will have one vote, and on a poll every Shareholder has one vote for each Common Share of which it is the registered owner. The Company’s articles provide that the rights and provisions attached to any class of shares, in which shares are issued, may not be modified, amended or varied unless consented to by special resolution passed by a majority of not less than two-thirds of the votes cast in person or by proxy by holders of shares of that class.
- 15 -
Preferred Shares
As of the date hereof, there were no First Preferred Shares or Second Preferred Shares issued and outstanding.
The First Preferred Shares of each series shall, with respect to the payment of dividends and the distribution of assets in the event of the liquidation, dissolution or winding-up of the Company or for the purpose of winding–up its affairs, rank on parity with the First Preferred Shares of every other series and be entitled to preference over the Second Preferred Shares of every other series and the Common Shares of the Company. The Second Preferred Shares of each series shall, with respect to the payment of dividends and the distribution of assets in the event of the liquidation, dissolution or winding-up of the Company or for the purpose of winding–up its affairs, rank on parity with the Second Preferred Shares of every other series and be entitled to preference over the Common Shares of the Company.
Options
The Company’s amended and restated stock option plan (the “Option Plan”) was approved at the annual and special meeting of the shareholders held on January 28, 2019. The purpose of the Option Plan is to provide incentive to employees, directors, officers, management companies, and consultants who provide services to the Company or any of its subsidiaries. Pursuant to the policies of the TSX-V, the Company is permitted to maintain a “fixed” stock option plan, whereby the maximum number of Company Shares to be delivered upon the exercise of all Options granted under the Option Plan, combined with any equity securities granted under all other compensation arrangements adopted by the Company, including the RSU/DSU Plan (as defined below), may not exceed 20% of the issued and outstanding share capital of the Company as of the date the Option Plan was approved, namely 16,705,940 Common Shares based on the Common Shares outstanding as of the date of such approval.
Pursuant to the Option Plan, the Board may from time to time, in its discretion and in accordance with the TSX-V requirements, grant to employees, directors, officers, management companies, and consultants who provide services to the Company or any of its subsidiaries, non-transferable Options to purchase Common Shares, exercisable for a period of up to ten years from the date of the grant, subject to the exception that expiry dates that fall within a blackout period will be extended by ten business days from the expiry of the blackout period, subject to certain conditions being met.
Subject to obtaining disinterested shareholder approval, the number of Common Shares reserved for issuance pursuant to grants of Options to any individual may not exceed 5% of the issued and outstanding Common Shares in any 12 months period (2% in the case of all Optionholders providing investor relations services to the Company and 2% in the case of all consultants of the Company in any 12 month period). The exercise price and vesting terms of any option granted pursuant to the Option Plan will be determined by the Board when granted, but shall not be less than the Market Price (as such term is defined by the TSX-V). Notwithstanding the foregoing, the vesting terms for options granted to Optionholders performing investor relations activities will vest not sooner than one-quarter on every three month interval from the date of grant. Options granted pursuant to the Option Plan will be non-transferable, except by means of a will or pursuant to the laws of descent and distribution.
As of September 30, 2019, there were 11,759,474 Options outstanding, which Options were granted under, and are governed by, the Option Plan.
The Options may be exercised no later than 30 days following the date the Optionholder ceases to be employed by or ceases to provide services to the Company or any of its subsidiaries, as applicable, subject to the Board’s discretion to extend such period up to one year following the date of termination; notwithstanding the foregoing, the Board may in its discretion determine that all of the Options held by an Optionholder on the date of termination which have not yet vested shall vest immediately on such date. However, if before the expiry of an Option, the tenure of a director or officer or the employment of an employee of the Company or any of its subsidiaries is terminated for cause or ceases as a result of resignation, no Option held by such Optionholder may be exercised following the date upon which such termination or resignation occurred, as applicable.
- 16 -
The summary above of the material terms of the Option Plan is qualified in its entirety by reference to the full text of the Option Plan, a copy of which is available under the Company’s profile on SEDAR at www.sedar.com.
Restricted Share Units/Deferred Share Units
A restricted share unit and deferred share unit plan of the Company (the “RSU/DSU Plan”) was approved at the special meeting of the shareholders and option holders of the Company held on December 15, 2017. The RSU/DSU Plan was established as a means by which the Company may grant awards of restricted share units (“RSUs”) and deferred share units (“DSUs”) as an alternative to stock options to provide incentive to officers, directors and employees who provide services to the Company or any of its subsidiaries.
Pursuant to the RSU/DSU Plan, the Board may from time to time, in its discretion, grant DSUs, or if permitted by the Board eligible participants may elect to receive their compensation in the form of DSUs, which will consist of non-transferable rights to receive, on a deferred payment basis, Common Shares or a cash payment equal to the fair market value of Common Shares, or a combination thereof. The number of DSUs to be credited to a person will be determined based on the amount of compensation to be paid in DSUs divided by the fair market value of the Common Shares as determined by the Board, on a one DSU per Common Share basis. DSUs will be redeemed by the Company upon the holder ceasing to be employed by or ceasing to provide services to the Company, as applicable, and will be settled pursuant to the terms and conditions of the RSU/DSU Plan.
The Board may also from time to time grant RSUs, which will represent non-transferable rights to receive, upon vesting of the RSUs, Common Shares or cash payments equal to the vesting date value of the Common Share. Except as otherwise provided in the RSU/DSU Plan, RSUs will vest on the later of (a) the trigger date, being a date set by the Board that is no later than December 1 of the third calendar year following the grant date, and (b) the date upon which all other applicable vesting conditions determined by the Board, including any performance based vesting conditions, have been met. Vesting may be accelerated in certain circumstances, including upon termination without cause in connection with a change of control of the Company or upon death or permanent disability of the holder. RSUs will be automatically deemed cancelled without compensation if they have not vested on or before the applicable expiry date, which will be December 31 of the third calendar year after the grant date or such earlier date as may be established by the Board. Subject to the discretion of the Board or as otherwise provided in the RSU/DSU Plan, RSUs will also be cancelled without compensation in the event that a holder eases to be engaged as a service provider of the Company.
The maximum number of Common Shares to be delivered upon the exercise of all RSUs and DSUs granted under the RSU/DSU Plan may not exceed 20% of the issued and outstanding share capital of the Company as of the effective date of the RSU/DSU Plan, namely 15,163,855 Common Shares based on the Common Shares outstanding as of the date of such approval, and, combined with any equity securities granted under all other compensation arrangements of the Company, including the Option Plan, may not exceed 16,705,940 Common Shares. In the event that any cash dividend or return of capital is declared and paid on the Common Shares, the bookkeeping accounts maintained by the Company in respect of any granted DSUs or RSUs will be credited with additional DSUs or RSUs, as applicable, in accordance with the terms and conditions of the RSU/DSU Plan.
As of the date hereof, there are no RSUs or DSUs outstanding.
The summary above of the material terms of the RSU/DSU Plan is qualified in its entirety by reference to the full text of the RSU/DSU Plan, a copy of which is available under the Company’s profile on SEDAR at www.sedar.com.
- 17 -
Debentures
As of the date hereof, the Company has $15,000,000 principal amount of 2019 Debentures outstanding. The 2019 Debentures were issued in connection with a private placement, the proceeds of which were used to redeem the 2014 Debentures (as defined above), for working capital and general corporate purposes. The 2019 Debentures are governed by the terms of a debenture indenture (the “Debenture Indenture”) dated August 7, 2019 between the Company and Computershare Trust Company of Canada. The principal amount of the 2019 Debentures are convertible into Common Shares at the option of the holder at any time prior to March 7, 2024 at a conversion price of $1.30 per Common Share (the “Conversion Price”). At any time after the date that is three years following the closing date, the Company may force the conversion of the principal amount of the 2019 Debentures at the Conversion Price on not less than 30 days’ notice if the daily volume weighted average trading price of the Common Shares is greater than $1.62 for any 20 consecutive trading days. Interest is calculated and paid semi-annually in arrears on the last business day of June and December in each year, computed on the basis of a 365/366-day year.
On April 30, 2019, the Company redeemed its 2014 Debentures. The 2014 Debentures were redeemed at a total redemption price of $1,040.00 plus accrued and unpaid interest of $24.79166667 up to but excluding the redemption date, both per $1,000 principal amount. As at the redemption date, the aggregate principal amount of the 2014 Debentures outstanding was $8,625,000.
The summary above of the material terms of the 2019 Debentures is qualified in its entirety by reference to the full text of the Debenture Indenture, a copy of which is available under the Company’s profile on SEDAR at www.sedar.com.
MARKET FOR SECURITIES
Trading Price and Volume
Common Shares
The Common Shares are listed and posted for trading on the TSX-V under the symbol “PTQ”. The following table sets out the monthly market price range and trading volume of the Common Shares on the TSX-V during the year ended September 30, 2019.
Month | High ($) | Low ($) | Total Volume | |||||||||
September 2019 | 0.90 | 0.70 | 2,329,659 | |||||||||
August 2019 | 0.87 | 0.69 | 3,989,281 | |||||||||
July 2019 | 0.82 | 0.73 | 1,854,224 | |||||||||
June 2019 | 0.86 | 0.66 | 3,042,073 | |||||||||
May 2019 | 1.01 | 0.71 | 6,338,593 | |||||||||
April 2019 | 1.05 | 0.93 | 6,983,372 | |||||||||
March 2019 | 1.00 | 0.88 | 3,471,246 | |||||||||
February 2019 | 1.07 | 0.80 | 6,022,357 | |||||||||
January 2019 | 1.06 | 0.55 | 8,226,593 | |||||||||
December 2018 | 0.775 | 0.55 | 13,372,527 | |||||||||
November 2018 | 0.80 | 0.525 | 15,676,304 | |||||||||
October 2018 | 0.875 | 0.625 | 21,618,392 |
The price of the Common Shares as quoted by the TSX-V at the close of business on September 30, 2019, being the last trading day of the year ended September 30, 2019, was $0.85 and at the close of business on the date immediately preceding the date of this AIF was $0.90.
2014 Debentures
The 2014 Debentures were listed and posted for trading on the TSX-V under the symbol “PHM.DB”. The following table sets out the monthly market price range and trading volume of the 2014 Debentures on the TSX-V from October 2018 up to the date of de-listing.
- 18 -
Month | High ($) | Low ($) | Total Volume | |||||||||
April 2019 | 104.00 | 100.50 | 2,280 | |||||||||
March 2019 | 103.25 | 98.25 | 2,720 | |||||||||
February 2019 | 100.00 | 98.00 | 1,070 | |||||||||
January 2019 | 98.10 | 96.50 | 80 | |||||||||
December 2018 | - | - | - | |||||||||
November 2018 | 90.00 | 90.00 | 230 | |||||||||
October 2018 | 92.50 | 90.00 | 300 |
2019 Debentures
The 2019 Debentures were listed and posted for trading on the TSX-V under the symbol “PHM.DB.A”. The following table sets out the monthly market price range and trading volume of the 2019 Debentures on the TSX-V from July 2019 to September 2019.
Month | High ($) | Low ($) | Total Volume | |||||||||
July 2019 | 95.00 | 90.00 | 146,000 | |||||||||
August 2019 | 105.00 | 90.60 | 181,000 | |||||||||
September 2019 | 93.00 | 91.50 | 31,000 |
Prior Sales
The following table summarizes details of the following securities that are not listed or quoted on a marketplace issued by the Company during the fiscal year ended September 30, 2019:
Date | Type of Security Issued | Issuance/Exercise Price per Security | Issued | |||||||
December 3, 2018 | Compensation Options | $ | 0.625 | 740,000 | ||||||
March 13, 2019 | Compensation Options | $ | 0.90 | 200,000 | ||||||
September 5, 2019 | Compensation Options | $ | 0.72 | 1,000,000 | ||||||
September 16, 2019 | Compensation Options | $ | 0.83 | 200,000 |
ESCROWED SECURITIES AND SECURITIES SUBJECT TO CONTRACTUAL RESTRICTION ON TRANSFER
The Company does not have securities that are held in escrow or that are subject to a contractual restriction on transfer.
DIRECTORS AND OFFICERS
Name, Occupation and Security Holding (as of the date hereof)
Name, Province or State and Country of Residence and Position(1) | Director or Officer Since(4) | Principal Occupations During Past Five Years(1) |
Gregory Crawford(2)(3)
Chief Executive Officer and Director Fort Thomas, Kentucky, USA |
December 21, 2017 | President, Chief Executive Officer of the Company since December 21, 2017. Chief Operating Officer of the Company from April 19, 2016 to December 21, 2017. President and Chief Executive Officer of Patient-Aids, Inc. from 2004 to October 2015, when Patient-Aids, Inc. was acquired by the Company. |
Mark Greenberg(3) Director
Cincinnati, Ohio, USA |
December 21, 2017 | Managing Partner of Silverstone Capital Advisors since March 2009. Managing Partner of Ludlow, Ward & Greenberg Capital Partners from 2005-2009. |
Eugene Ewing(3) Director Fort Mitchell, Kentucky, USA | August 1, 2018 | Managing Member, Deeper Water Consulting since May 2006. Independent Director – Various Corporations |
Hardik Mehta
Chief Financial Officer Cincinnati, Ohio, USA |
February 15, 2018 | Chief Financial Officer of the Company since February 2018. Prior to being appointed CFO, Mr. Mehta worked as a finance professional and an investment banker at investment banking and advisory firm, Silverstone Capital Advisors from 2009 to 2018. |
Robbie Grossman Corporate Secretary
Toronto, Ontario, Canada |
January 30, 2012 | Corporate finance, M&A and securities lawyer at DLA Piper (Canada) LLP since March 2018, at McMillan LLP from September 2013 to March 2018. |
- 19 -
Notes: |
(1) | The information as to place of residence and principal occupation has been confirmed by the respective directors and officers individually. |
(2) | Mr. Crawford was appointed Chief Operating Officer of the Company on April 19, 2016 and subsequently appointed the Chief Executive Officer of the Company as of December 21, 2017. |
(3) | Member of the Audit Committee. |
(4) | Each director will hold office until his re-election or replacement at the next annual meeting of the shareholders unless he resigns his duties or his office becomes vacant following his death, dismissal or any other cause prior to such meeting. The term of office of the officers expires at the discretion of the Board. |
As at the date hereof, the directors and executive officers of the Company, as a group, beneficially own, or control or direct, directly or indirectly, 3,945,792 Common Shares representing approximately 4.7% of the outstanding the Common Shares before giving effect to the exercise of the Options, RSUs and DSUs held by such directors and executive officers (10,488,792 Common Shares representing approximately 11.6% of the outstanding the Common Shares, on a partially diluted basis). The statement as to the number of the Common Shares beneficially owned, or over which a director or executive officer exercises control or direction, directly or indirectly, not being within the knowledge of the Company, has been furnished by the directors and executive officers.
Biographical Information
Gregory Crawford, Chief Executive Officer and Director
Mr. Crawford joined the Company through the Company's acquisition of Patient-Aids. in October of 2015. In April of 2016, Mr. Crawford became the Company’s Chief Operating Officer and a Director of the Company’s Board. Mr. Crawford began his career at Patient-Aids in 1994, becoming a partner 3-years later and Patient-Aids' sole owner by 2004. Under Crawford’s ownership, Patient-Aids grew at an annual rate of 25%, and from 2013 through 2015 more than doubled its revenue and quadrupled its earnings as it acquired and successfully integrated five home medical equipment businesses. Since 1982, Patient-Aids has been the dominant HME business in its region. Their product lines and services focus on treating patients with chronic respiratory conditions, mobility conditions, and patients requiring traditional durable medical home based equipment.
Mark Greenberg, Director
Mr. Greenberg is Managing Partner and Founder of Silverstone Capital Advisors and brings more than 30-years of senior executive operating and transaction expertise and experience. He has been a senior executive and operating president of units in Fortune 500 companies and a CEO and Chairman of middle market and high growth, venture capital-backed companies, as well as an investment banker and restructuring and financial advisor serving middle market and financial institution clients nationwide. As a principal investor, advisor, investment banker and transaction team member Mark has participated in more than 150 M&A and capital sourcing transactions. These have included transactions involving units of Fortune 1000 companies, middle market companies and high growth venture funded businesses.
- 20 -
Eugene Ewing, Director
Mr. D. Eugene Ewing has over 30 years of professional experience in a wide range of executive positions and brings a wealth of corporate knowledge across a variety of industry groups. He currently serves as an independent director of Darling Ingredients Inc., a New York Stock Exchange listed company focused on creating sustainable food, feed and fuel solutions from organic by-products. He also serves as an independent director of Compass Diversified Holdings, a New York Stock Exchange listed company that owns and manages controlling interests in a diverse family of established North American middle market businesses. In addition to his public company roles, Mr. Ewing has been the managing member of Deeper Water Consulting, a private wealth and business consulting company, since March of 2004. Previously, Mr. Ewing held senior positions at the Fifth Third Bank, ranked 17th in 2018 in total assets for U.S. banks, and was a tax partner at Arthur Andersen LLP for over 15 years, in Cincinnati, Ohio. Mr. Ewing is also on the Advisory Board for the Von Allmen School of Accountancy at the University of Kentucky and is also a director of a private trust company located in Wyoming and a private consulting company located in California.
Hardik Mehta, Chief Financial Officer
Mr. Mehta joined the Company as Chief Financial Officer in February 2018. Prior to becoming CFO, Mr. Mehta worked as a finance professional and an investment banker at investment banking and advisory firm, Silverstone Capital Advisors for nearly ten years. Mr. Mehta has significant acquisition, transaction finance, accounting and negotiating experience. Mr. Mehta has been an advisor on more than 30 M&A and funding transactions, including buy-side transactions, in which he oversaw quality of earnings analysis, due diligence and post-transaction integration planning. Additionally, Mr. Mehta has developed a deep understanding and has mastered both financial and operational aspects of the HME/DME industry. He has also worked on multiple M&A transactions in these industries. Mr. Mehta has extensive experience in capital markets and excels in financial planning and analysis. He holds an undergraduate degree in engineering and a MBA in finance from the Lindner Graduate School of Business at the University of Cincinnati.
Robbie Grossman, Corporate Secretary
Robbie Grossman holds a LL.B. from the University of Windsor and a B.A. (Political Science) from Concordia University, and he was called to the Ontario bar in 2002. Mr. Grossman has a cross border securities, M&A and corporate finance practice underscored by deep experience in acting for emerging issuers and public companies. Robbie acts for issuers and dealers on public offerings, private placements, exchange listings, reverse takeovers, mergers and acquisitions, restructurings and continuous disclosure obligations for public companies, across a wide variety of industries and business sectors, including healthcare, life sciences, fintech, cannabis, crypto/blockchain, resource, real estate and industrial. He has been with DLA Piper (Canada) LLP since March 2018, and previously was at McMillan LLP from September 2013 to March 2018 and at Garfinkle Biderman LLP from February 2004 to September 2013. Mr. Grossman has been, and currently is, an officer and director of several publicly traded companies.
Cease Trade Orders, Bankruptcies, Penalties or Sanctions
To the best of the Company’s knowledge, no director or executive officer of the Company is, as at the date of this AIF, or was within 10 years before the date of this AIF, a director, chief executive officer or chief financial officer of any company that was: (i) subject to a cease trade order or similar order, or an order that denied the relevant company access to any exemption under securities legislation, that was in effect for a period of more than 30 consecutive days that was issued while the director or executive officer was acting in the capacity as director, chief executive officer or chief financial officer; or (ii) subject to such an order that was issued after the director or executive officer ceased to be a director, chief executive officer or chief financial officer and which resulted from an event that occurred while that person was acting in the capacity as director, chief executive officer or chief financial officer.
Except as noted below, to the best of the Company’s knowledge, no director or executive officer of the Company, or a shareholder holding a sufficient number of securities of the Company to affect materially the control of the Company: (i) is, as at the date of this AIF, or has been within the 10 years before the date of this AIF, a director or executive officer of any company that, while that person was acting in that capacity, or within a year of that person ceasing to act in that capacity, became bankrupt, made a proposal under any legislation relating to bankruptcy or insolvency or was subject to or instituted any proceedings, arrangement or compromise with creditors or had a receiver, receiver manager or trustee appointed to hold its assets; or (ii) has, within the 10 years before the date of this AIF, become bankrupt, made a proposal under any legislation relating to bankruptcy or insolvency, or become subject to or instituted any proceedings, arrangement or compromise with creditors, or had a receiver, receiver manager or trustee appointed to hold the assets of the director, executive officer or shareholder.
- 21 -
Robbie Grossman was the Assistant Secretary of RedWater Energy Corp. until May 2015 which was subject to (a) a cease trade order in May 2015 for failure to file annual audited financial statements, management's discussion and analysis, and certifications, for the year ended December 31, 2014, (b) a court ordered receiver in May 2015, and (c) a bankruptcy order October 28, 2015.
To the best of the Company’s knowledge, no director or executive officer of the Company, or a shareholder holding a sufficient number of securities of the Company to affect materially the control of the Company, has been subject to: (i) any penalties or sanctions imposed by a court relating to securities legislation or by a securities regulatory authority or has entered into a settlement agreement with a securities regulatory authority; or (ii) any other penalties or sanctions imposed by a court or regulatory body that would likely be considered important to a reasonable investor in making an investment decision.
Conflicts of Interest
To the best of the Company’s knowledge, and other than as disclosed herein, there are no known existing or potential conflicts of interest among the Company and any director or officer of the Company, except that certain of the directors, officers and other members of management serve as directors, officers, promoters and members of management of other public companies, and therefore it is possible that a conflict may arise between their duties to the Company and their duties as a director, officer, promoter or member of management of such other companies. Any decision made by any of such directors and officers involving the Company will be made in accordance with their duties and obligations to deal fairly and in good faith with a view to the best interests of the Company and its shareholders. In addition, each of the directors is required to declare and refrain from voting in any matter in which such directors may have a conflict of interest in accordance with the procedures set forth in the BCBCA or other applicable corporate legislation. See “Risk Factors - Conflicts of Interest”.
Advance Notice Provisions
The Company’s Articles provide for advance notice of nominations of directors of the Company which require that advance notice be provided to the Company in circumstances where nominations of persons for election to the board of directors are made by shareholders of the Corporation other than pursuant to: (i) a requisition of a meeting of shareholders made pursuant to the provisions of the BCBCA; or (ii) a shareholder proposal made pursuant to the provisions of the BCBCA. A copy of the Articles are available under the Company’s profile on SEDAR at www.sedar.com.
LEGAL PROCEEDINGS AND REGULATORY ACTIONS
Legal Proceedings
Other than as described below, during the financial year ended September 30, 2019, the Company was not a party to any material legal proceedings and no such proceedings were known by the Company to be contemplated.
In March 2019, the Company experienced an unlawful and undiscovered intrusion into its email system, which resulted in fraudulent banking information being relayed regarding the transfer of funds on April 30, 2019 to satisfy the then outstanding 2014 Debentures. The intruder was able to mislead certain parties with inaccurate requests and instructions and in doing so caused the funds to be transferred into an account of a criminal third party outside North America. The fraud was uncovered on May 3, 2019 and the Company took immediate action to stop or undo the transfer and simultaneously started action to recover the amounts transferred. The Company successfully froze $8.6 million of the funds and successfully enforced a court order in Hong Kong to have the funds returned. On June 26, 2019, a Hong Kong court with jurisdiction over the funds entered a judgement in favor of the Company. On September 9, 2019, in accordance with the judgement, an amount of $8.6 million was returned to the Company. The Company has a cyber policy in tact that should allow it to recover most of the transactional costs made in relation to the incident.
- 22 -
The Company has been in litigation with Lightwater Long Short Fund for the years ended September 30, 2019 and 2018. The litigation is due to Lightwater claiming damages for matters related to subscription agreements in a prior private placement. Management believes that this lawsuit is without merit and is unpredictable. It is uncertain currently to determine the outcome of this lawsuit or potential liability, if any.
The Company is included, along with ten others, as defendants litigation in the State of California regarding a claim of a violation of the California Insurance Prevention Act. The complaint alleges that certain defendants, other than the Company, violated such Act by paying kickbacks in exchange for client referrals under the guise of so called bed vouchers or indigent scholarship costs, and by billing for addition recovery services that did not meet the minimum requirements put forth by the insurers as a precondition for reimbursement. The Company is contesting the allegations and it is too early in the litigation process to determine the outcome of this lawsuit or potential liability, if any.
The Company is in litigation with the State of New Jersey, as well as other states. The complaint alleges that the defendants reused blood testing meters, resulting in fraudulent claims to the U.S. government, and seeks damages for the unnecessary testing. The Company has denied the allegations of the complaint and is contesting the action. It is too early in the litigation process to determine the outcome of this lawsuit or potential liability, if any.
Regulatory Actions
During the financial year ended September 30, 2019, the Company was not subject to any penalties or sanctions imposed by a court or regulatory body and was not a party to any settlement agreement entered into before a court or regulatory body, relating to provincial or territorial securities legislation.
INTEREST OF MANAGEMENT AND OTHERS IN MATERIAL TRANSACTIONS
Except as otherwise disclosed herein, none of the directors or executive officers of the Company, any person who beneficially owns, directly or indirectly, shares carrying more than 10% of the voting rights attached to all the Common Shares, nor any associate or affiliate of the foregoing persons, has any material interest, direct or indirect, in any transaction of the Company or any of its subsidiaries within the three most recently completed financial years or during the current financial year which has or is reasonably expected to materially affect the Company.
On October 1, 2015, the Company entered into a seven-year triple net lease agreement for office space with a rental company that is affiliated with Gregory Crawford, the President and Chief Executive Officer of the Company. Rental payments under this lease agreement are US$43,000 per month, plus taxes, utilities and maintenance.
Robbie Grossman, the Corporate Secretary of the Company, is a partner at DLA Piper (Canada) LLP, which law firm provides legal services to the Company. The Company and its subsidiaries incurred fees of approximately US$245,000 during the financial year ended September 30, 2019.
TRANSFER AGENT AND REGISTRAR
The Company’s registrar and transfer agent is Computershare Investor Services Inc., located at 2nd Floor, 510 Burrard Street, Vancouver, British Columbia V6C 3A8.
MATERIAL CONTRACTS
The following are the material contracts of the Company entered into within the most recently completed financial year, or before the most recently completed financial year that are still in effect that are required to be filed by the Company:
1. | the Option Plan, as described under “Capital Structure - Options”; |
- 23 -
2. | the RSU/DSU Plan, as described under “Capital Structure - Restricted Share Units/Deferred Share Units”; and |
3. | the Debenture Indenture, as described hereunder under “Capital Structure - Debentures”; |
4. | a purchase agreement dated October 15, 2019 between PHM Logistics, CME and the sole shareholder of CME, pursuant to which PHM Logistics acquired all of the outstanding shares of CME in consideration for US$2,514,000, as described under “General Development of the Business - Developments Subsequent to the financial year ended September 30, 2019”; |
5. | a purchase agreement dated December 1, 2019 between PHM Logistics, AMI and the shareholders of AMI, pursuant to which PHM Logistics acquired all of the outstanding shares of AMI in consideration for US$1,750,000, as described under “General Development of the Business - Developments Subsequent to the financial year ended September 30, 2019”; and |
6. | an asset purchase agreement dated July 29, 2019 between mdINR LLC, a Delaware limited liability company, PHM Inc., and the Company, wherein mdINR LLC purchased substantially all of the assets of PHM Inc. in consideration for up US$4,250,000 with a minimum of US$3,400,000 which was paid in cash on closing, as described under “General Development of the Business - Fiscal Year Ended September 30, 2019”. |
INTERESTS OF EXPERTS
The Company’s auditors, MNP LLP, Chartered Accountants, are independent within the meaning of the relevant rules and related interpretations prescribed by the relevant professional bodies in Canada and any applicable legislation or regulations.
AUDIT COMMITTEE INFORMATION
Audit Committee Mandate
The full text of the Company’s audit committee charter (the “Charter”) is included as Schedule “A” to this AIF.
Composition of the Audit Committee
The members of the audit committee (the “Audit Committee”), as outlined under “Directors and Officers - Name, Occupation and Security Holding”, are: Eugene Ewing (Chair), Mark Greenberg, and Gregory Crawford. The members of the Audit Committee are financially literate (as such term is defined in National Instrument 52-110 – Audit Committees (“NI 52-110”). Mr. Ewing and Mark Greenberg are independent (as such term is defined in NI 52-110 and in the BCBCA). Mr. Crawford (President and Chief Executive Officer) is not independent as he is an executive officer (as such term is defined in NI 51-102.
Relevant Education and Experience
NI 52-110 provides that an individual is “financially literate” if he has the ability to read and understand a set of financial statements that present a breadth and level of complexity of accounting issues that are generally comparable to the breadth and complexity of the issues that can reasonably be expected to be raised by a company’s financial statements.
In addition to each member’s general business experience, the education and experience of each audit committee member relevant to the performance of his responsibilities as an audit committee member is as follows:
- 24 -
Eugene Ewing, Chair
Mr. Ewing has over 30 years of professional experience in a wide range of executive positions and brings a wealth of corporate knowledge across a variety of industry groups. He currently serves as an independent director of Darling Ingredients Inc., a New York Stock Exchange listed company, where he serves as Chairman of the Audit Committee and as a member of the Nominating and Governance Committee. He also serves as an independent director of Compass Diversified Holdings, a New York Stock Exchange listed company, where he also serves as Chairman of the Audit Committee and as a member of the Compensation and Nominating/Corporate Governance Committees. In addition to his public company roles, Mr. Ewing has been the managing member of Deeper Water Consulting, a private wealth and business consulting company, since March of 2004. Previously, Mr. Ewing held senior positions at the Fifth Third Bank, ranked 17th in 2018 in total assets for U.S. banks, and was a tax partner at Arthur Andersen LLP for over 15 years. Mr. Ewing is also on the Advisory Board for the Von Allmen School of Accountancy at the University of Kentucky and is also a director of a private trust company located in Wyoming and a private consulting company located in California. As a former partner with what was once one of the U.S.’s largest certified public accounting firms, and with more than 30 years of business planning and transaction experience in a wide variety of industries and circumstances, Mr. Ewing brings to the Company’s Audit Committee significant experience in complex accounting, reporting and taxation matters and corporate merger and acquisition transactions. Mr. Ewing’s financial certifications and education, along with his current and past experiences, makes him uniquely qualified to Chair the Audit Committee the Company.
Mark Greenberg
Mr. Greenberg is Managing Partner and Founder of Silverstone Capital Advisors and brings more than thirty years of senior executive operating and transaction expertise and experience. He has been a senior executive and operating president of units in Fortune 500 companies and a CEO and Chairman of middle market and high growth, venture capital-backed companies, as well as an investment banker and restructuring and financial advisor serving middle market and financial institution clients nationwide. As a principal investor, advisor, investment banker and transaction team member. Mr. Greenberg has participated in more than 150 M&A and capital sourcing transactions. These have included transactions involving units of Fortune 1000 companies, middle market companies and high growth venture funded businesses.
Gregory Crawford
Mr. Crawford joined the Company through the Company’s acquisition of Patient-Aids, Inc. in October of 2015. Mr. Crawford began his career at Patient-Aids in 1994, becoming a partner three years later and Patient-Aids' sole owner by 2004. Under Mr. Crawford’s ownership, Patient-Aids grew at an annual rate of 25%, and from 2013 through 2015 more than doubled its revenue and quadrupled its earnings as it acquired and successfully integrated five home medical equipment businesses. Since 1982, Patient-Aids has been the dominant HME business in its region. Their product lines and services focus on treating patients with chronic respiratory conditions, mobility conditions, and patients requiring traditional durable medical home-based equipment.
External Auditor Matters
Since the commencement of the Company’s most recently completed financial year, the Company’s directors have not failed to adopt a recommendation of the Audit Committee to nominate or compensate an external auditor and the Corporation has not relied on the exemptions contained in sections 2.4 or 8 of NI 52-110. Section 2.4 provides an exemption from the requirement that the Audit Committee must pre-approve all non-audit services to be provided by the auditor, where the total amount of fees related to the non-audit services are not expected to exceed 5% of the total fees payable to the auditor in the financial year in which the non-audit services were provided. Part 8 permits a company to apply to a securities regulatory authority for an exemption from the requirements of NI 52-110, in whole or in part. The Audit Committee has not adopted specific policies and procedures for the engagement of non-audit services. Subject to the requirements of NI 52-110, the engagement of non-audit services is considered by the Corporation's directors and, where applicable, the Audit Committee, on a case-by-case basis.
The following table sets forth, by category, the fees for all services rendered by the Company’s current external auditor, MNP LLP, for the financial years ended September 30, 2019 and September 30, 2018 (including estimates expressed in Canadian dollars).
- 25 -
Fees | Financial Year Ending September 30, 2019 | Financial Year Ending September 30, 2018 | ||||||
Audit Fees | $ | 342,800 | $ | 313,000 | ||||
Audit Related Fees | $ | 21,000 | $ | 21,800 | ||||
Tax Fees | Nil | Nil | ||||||
All Other Fees | Nil | $ | 81,500 |
In the above table, “Audit fees” are fees billed by the Company’s external auditor for services provided in auditing the Company’s annual financial statements for the subject year. “Audit-related fees” are fees not included in audit fees that are billed by the auditor for assurance and related services that are reasonably related to the performance of the audit or review of the Company’s financial statements. “Tax fees” are fees billed by the auditor for professional services rendered for tax compliance, tax advice and tax planning. “All other fees” are fees billed by the auditor for products and services not included in the foregoing categories.
Exemptions
The Company is a “venture issuer” as defined in NI 52-110 and is relying on the exemption contained in Section 6.1 of NI 52-110, which exempts the Company from the requirements of Part 3 (Composition of the Audit Committee) and Part 5 (Reporting Obligations) of NI 52-110.
ADDITIONAL INFORMATION
Additional information about the Company may be found on SEDAR at www.sedar.com. Additional financial information is provided in the Company’s audited financial statements for the period ended September 30, 2019 and the accompanying MD&A. Information about remuneration and indebtedness of directors and officers of the Company, principal holders of the Common Shares and securities authorized for issuance under securitybased compensation of the Company, will be contained in the Company’s information circular for its upcoming annual meeting of security holders that will involve the election of directors.
For copies of the financial statements of the Company and accompanying MD&A and the information circular and proxy statement and additional copies of the AIF (in certain circumstances reasonable fees may apply), please contact: Chief Financial Officer, Protech Home Medical Corp.; Telephone: (859) 878-2220; Email: investorinfo@myphm.com. Additional information relating to the Company may be found on SEDAR at www.sedar.com.
Schedule “A”
Audit Committee Charter
PROTECH
HOME MEDICAL CORP.
(THE “COMPANY”)
CHARTER OF THE AUDIT COMMITTEe
1. | PURPOSE AND PRIMARY RESPONSIBILITY |
1.1. | This charter sets out the Audit Committee’s purpose, composition, member qualification, member appointment and removal, responsibilities, operations, manner of reporting to the Board of Directors (the “Board”) of the Company, annual evaluation and compliance with this charter. |
1.2. | The primary responsibility of the Audit Committee is that of oversight of the financial reporting process on behalf of the Board. This includes oversight responsibility for financial reporting and continuous disclosure, oversight of external audit activities, oversight of financial risk and financial management control, and oversight responsibility for compliance with tax and securities laws and regulations as well as whistle blowing procedures. The Audit Committee is also responsible for the other matters as set out in this charter and/or such other matters as may be directed by the Board from time to time. The Audit Committee should exercise continuous oversight of developments in these areas. |
2. | MEMBERSHIP |
2.1. | A majority of the members of the Audit Committee must not be executive officers, employees or control persons of the Company or of an affiliate of the Company, as defined in National Instrument 52-110 – Audit Committees (“NI 52-110”), provided that should the Company become listed on a more senior exchange, each member of the Audit Committee will also satisfy the independence requirements of such exchange and of NI 52-110. |
2.2. | The Audit Committee will consist of at least three members, all of whom must be directors of the Company. Upon graduating to a more senior stock exchange, if required under the rules or policies of such exchange, each member of the Audit Committee will also satisfy the financial literacy requirements of such exchange and of NI 52-110. |
2.3. | The members of the Audit Committee will be appointed annually (and from time to time thereafter to fill vacancies on the Audit Committee) by the Board. An Audit Committee member may be removed or replaced at any time at the discretion of the Board and will cease to be a member of the Audit Committee on ceasing to be an independent director. |
2.4. | The Chair of the Audit Committee will be appointed by the Board. |
3. | AUTHORITY |
3.1. | In addition to all authority required to carry out the duties and responsibilities included in this charter, the Audit Committee has specific authority to: |
(a) | engage, set and pay the compensation for independent counsel and other advisors as it determines necessary to carry out its duties and responsibilities, and any such consultants or professional advisors so retained by the Audit Committee will report directly to the Audit Committee; |
(b) | communicate directly with management and any internal auditor, and with the external auditor without management involvement; and |
- 27 -
(c) | incur ordinary administrative expenses that are necessary or appropriate in carrying out its duties, which expenses will be paid for by the Company. |
4. | DUTIES AND RESPONSIBILITIES |
4.1. | The duties and responsibilities of the Audit Committee include: |
(a) | recommending to the Board the external auditor to be nominated by the Board; |
(b) | recommending to the Board the compensation of the external auditor to be paid by the Company in connection with (i) preparing and issuing the audit report on the Company’s financial statements, and (ii) performing other audit, review or attestation services; |
(c) | reviewing the external auditor’s annual audit plan, fee schedule and any related services proposals (including meeting with the external auditor to discuss any deviations from or changes to the original audit plan, as well as to ensure that no management restrictions have been placed on the scope and extent of the audit examinations by the external auditor or the reporting of their findings to the Audit Committee); |
(d) | overseeing the work of the external auditor; |
(e) | ensuring that the external auditor is independent by receiving a report annually from the external auditors with respect to their independence, such report to include disclosure of all engagements (and fees related thereto) for non-audit services provided to Company; |
(f) | ensuring that the external auditor is in good standing with the Canadian Public Accountability Board by receiving, at least annually, a report by the external auditor on the audit firm’s internal quality control processes and procedures, such report to include any material issues raised by the most recent internal quality control review, or peer review, of the firm, or any governmental or professional authorities of the firm within the preceding five years, and any steps taken to deal with such issues; |
(g) | ensuring that the external auditor meets the rotation requirements for partners and staff assigned to the Company’s annual audit by receiving a report annually from the external auditors setting out the status of each professional with respect to the appropriate regulatory rotation requirements and plans to transition new partners and staff onto the audit engagement as various audit team members’ rotation periods expire; |
(h) | reviewing and discussing with management and the external auditor the annual audited and quarterly unaudited financial statements and related Management Discussion and Analysis (“MD&A”), including the appropriateness of the Company’s accounting policies, disclosures (including material transactions with related parties), reserves, key estimates and judgements (including changes or variations thereto) and obtaining reasonable assurance that the financial statements are presented fairly in accordance with IFRS and the MD&A is in compliance with appropriate regulatory requirements; |
(i) | reviewing and discussing with management and the external auditor major issues regarding accounting principles and financial statement presentation including any significant changes in the selection or application of accounting principles to be observed in the preparation of the financial statements of the Company and its subsidiaries; |
- 28 -
(j) | reviewing and discussing with management and the external auditor the external auditor’s written communications to the Audit Committee in accordance with generally accepted auditing standards and other applicable regulatory requirements arising from the annual audit and quarterly review engagements; |
(k) | reviewing and discussing with management and the external auditor all earnings press releases, as well as financial information and earnings guidance provided to analysts and rating agencies prior to such information being disclosed; |
(l) | reviewing the external auditor’s report to the shareholders on the Company’s annual financial statements; |
(m) | reporting on and recommending to the Board the approval of the annual financial statements and the external auditor’s report on those financial statements, the quarterly unaudited financial statements, and the related MD&A and press releases for such financial statements, prior to the dissemination of these documents to shareholders, regulators, analysts and the public; |
(n) | satisfying itself on a regular basis through reports from management and related reports, if any, from the external auditors, that adequate procedures are in place for the review of the Company’s disclosure of financial information extracted or derived from the Company’s financial statements that such information is fairly presented; |
(o) | overseeing the adequacy of the Company’s system of internal accounting controls and obtaining from management and the external auditor summaries and recommendations for improvement of such internal controls and processes, together with reviewing management’s remediation of identified weaknesses; |
(p) | reviewing with management and the external auditors the integrity of disclosure controls and internal controls over financial reporting; |
(q) | reviewing and monitoring the processes in place to identify and manage the principal risks that could impact the financial reporting of the Company and assessing, as part of its internal controls responsibility, the effectiveness of the over-all process for identifying principal business risks and report thereon to the Board; |
(r) | satisfying itself that management has developed and implemented a system to ensure that the Company meets its continuous disclosure obligations through the receipt of regular reports from management and the Company’s legal advisors on the functioning of the disclosure compliance system, (including any significant instances of non- compliance with such system) in order to satisfy itself that such system may be reasonably relied upon; |
(s) | resolving disputes between management and the external auditor regarding financial reporting; |
(t) | establishing procedures for: |
- 29 -
(u) | the receipt, retention and treatment of complaints received by the Company from employees and others regarding accounting, internal accounting controls or auditing matters and questionable practises relating thereto, and |
(v) | the confidential, anonymous submission by employees of the Company of concerns regarding questionable accounting or auditing matters; |
(w) | reviewing and approving the Company’s hiring policies with respect to partners or employees (or former partners or employees) of either a former or the present external auditor; |
(x) | pre-approving all non-audit services to be provided to the Company or any subsidiaries by the Company’s external auditor; |
(y) | overseeing compliance with regulatory authority requirements for disclosure of external auditor services and Audit Committee activities; |
(z) | establishing procedures for: |
(i) | reviewing the adequacy of the Company’s insurance coverage, including the Directors’ and Officers’ insurance coverage; |
(ii) | reviewing activities, organizational structure, and qualifications of the Chief Financial Officer (“CFO”) and the staff in the financial reporting area and ensuring that matters related to succession planning within the Company are raised for consideration at the Board; |
(iii) | obtaining reasonable assurance as to the integrity of the Chief Executive Officer (“CEO”) and other senior management and that the CEO and other senior management strive to create a culture of integrity throughout the Company; |
(iv) | reviewing fraud prevention policies and programs, and monitoring their implementation; |
(v) | reviewing regular reports from management and others (e.g., external auditors, legal counsel) with respect to the Company’s compliance with laws and regulations having a material impact on the financial statements including: |
A) | tax and financial reporting laws and regulations; |
B) | legal withholding requirements; |
C) | environmental protection laws and regulations; |
D) | other laws and regulations which expose directors to liability; and |
4.2. | A regular part of Audit Committee meetings involves the appropriate orientation of new members as well as the continuous education of all members. Items to be discussed include specific business issues as well as new accounting and securities legislation that may impact the organization. The Chair of the Audit Committee will regularly canvass the Audit Committee members for continuous education needs and in conjunction with the Board education program, arrange for such education to be provided to the Audit Committee on a timely basis. |
- 30 -
4.3. | On an annual basis the Audit Committee shall review and assess the adequacy of this charter taking into account all applicable legislative and regulatory requirements as well as any best practice guidelines recommended by regulators or stock exchanges with whom the Company has a reporting relationship and, if appropriate, recommend changes to the Audit Committee charter to the Board for its approval. |
5. | MEETINGS |
5.1. | The quorum for a meeting of the Audit Committee is a majority of the members of the Audit Committee. |
5.2. | The Chair of the Audit Committee shall be responsible for leadership of the Audit Committee, including scheduling and presiding over meetings, preparing agendas, overseeing the preparation of briefing documents to circulate during the meetings as well as pre-meeting materials, and making regular reports to the Board. The Chair of the Audit Committee will also maintain regular liaison with the CEO, CFO, and the lead external audit partner. |
5.3. | The Audit Committee will meet in camera separately with each of the CEO and the CFO of the Company at least annually to review the financial affairs of the Company. |
5.4. | The Audit Committee will meet with the external auditor of the Company in camera at least once each year, at such time(s) as it deems appropriate, to review the external auditor’s examination and report. |
5.5. | The external auditor must be given reasonable notice of, and has the right to appear before and to be heard at, each meeting of the Audit Committee. |
5.6. | Each of the Chair of the Audit Committee, members of the Audit Committee, Chair of the Board, external auditor, CEO, CFO or secretary shall be entitled to request that the Chair of the Audit Committee call a meeting which shall be held within 48 hours of receipt of such request to consider any matter that such individual believes should be brought to the attention of the Board or the shareholders. |
6. | REPORTS |
6.1. | The Audit Committee will report, at least annually, to the Board regarding the Audit Committee’s examinations and recommendations. |
6.2. | The Audit Committee will report its activities to the Board to be incorporated as a part of the minutes of the Board meeting at which those activities are reported. |
7. | MINUTES |
7.1. | The Audit Committee will maintain written minutes of its meetings, which minutes will be filed with the minutes of the meetings of the Board. |
8. | ANNUAL PERFORMANCE EVALUATION |
8.1. | The Board will conduct an annual performance evaluation of the Audit Committee, taking into account the charter, to determine the effectiveness of the Committee. |
Exhibit 99.11
Protech Home Medical Announces DATE AND TIME FOR Q4 and Full Year Fiscal 2019 QUARTERLY CONFERENCE CALL
NOT FOR DISSEMINATION IN THE UNITED STATES OR FOR DISTRIBUTION TO U.S. NEWSWIRE SERVICES AND DOES NOT CONSTITUTE AN OFFER OF THE SECURITIES DESCRIBED HEREIN.
Cincinnati, Ohio, January 20, 2020 – Protech Home Medical Corp. (the “Company”) (TSX-V: PTQ), a healthcare services company with operations in the U.S., today announced that it will host its Q4 and Full Year Fiscal 2020 Earnings Conference Call on Wednesday, January 29, 2020 at 10:00 a.m. (EST).
Conference Call Details:
Wednesday, January 29, 2020 at 10:00 a.m. (EST).
Canada/US Toll Free: | 1 (800) 319 4610 | |
International: | 1 (604) 638 5340 |
ABOUT PROTECH HOME MEDICAL
The Company provides in-home monitoring and disease management services for patients in the United States healthcare market. It seeks to continue to expand its offerings to include the management of several chronic disease states focusing on patients with heart or pulmonary disease, sleep disorders, reduced mobility and other chronic health conditions. The initial service line includes providing in-home monitoring equipment, supplies and services to patients in the U.S. who take prescription blood thinners, such as Coumadin® (warfarin).
The primary business objective of the Company is to create shareholder value by offering a broader range of services to patients in need of in-home monitoring and chronic disease management. The Company’s organic growth strategy is to increase annual revenue per patient by offering multiple services to the same patient, consolidating the patient’s services and making life easier for the patient.
Neither the TSX Venture Exchange nor its Regulation Services Provider (as that term is defined in the policies of the TSX Venture Exchange) accepts responsibility for the adequacy or accuracy of this release.
For further information please visit our website at www.phmcompanies.com, or contact:
Gregory Crawford
Chief Executive Officer
Protech Home Medical Corp.
859-300-6455
investorinfo@myphm.com
Investor Relations:
Oak Hill Financial Inc.
Jonathan L. Robinson CFA
416-669-1001
jrobinson@oakhillfinancial.ca
Exhibit 99.12
FORM 52-109FV1
CERTIFICATION OF ANNUAL FILINGS
VENTURE ISSUER BASIC CERTIFICATE
I, Gregory Crawford, Chief Executive Officer of Protech Home Medical Corp., certify the following:
1. Review: I have reviewed the AIF, if any, annual financial statements and annual MD&A, including, for greater certainty, all documents and information that are incorporated by reference in the AIF (together, the “annual filings”) of Protech Home Medical Corp. (the “issuer”) for the financial year ended September 30, 2019.
2. No misrepresentations: Based on my knowledge, having exercised reasonable diligence, the annual filings do not contain any untrue statement of a material fact or omit to state a material fact required to be stated or that is necessary to make a statement not misleading in light of the circumstances under which it was made, for the period covered by the annual filings.
3. Fair presentation: Based on my knowledge, having exercised reasonable diligence, the annual financial statements together with the other financial information included in the annual filings fairly present in all material respects the financial condition, financial performance and cash flows of the issuer, as of the date of and for the periods presented in the annual filings.
Date: January 28, 2020
(signed) “Gregory Crawford”
Gregory Crawford
Chief Executive Officer
NOTE TO READER
In contrast to the certificate required for non-venture issuers under National Instrument 52-109 Certification of Disclosure in Issuers’ Annual and Interim Filings (NI 52-109), this Venture Issuer Basic Certificate does not include representations relating to the establishment and maintenance of disclosure controls and procedures (DC&P) and internal control over financial reporting (ICFR), as defined in NI 52-109. In particular, the certifying officers filing this certificate are not making any representations relating to the establishment and maintenance of
I. | controls and other procedures designed to provide reasonable assurance that information required to be disclosed by the issuer in its annual filings, interim filings or other reports filed or submitted under securities legislation is recorded, processed, summarized and reported within the time periods specified in securities legislation; and |
II. | a process to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with the issuer’s GAAP. |
The issuer’s certifying officers are responsible for ensuring that processes are in place to provide them with sufficient knowledge to support the representations they are making in this certificate. Investors should be aware that inherent limitations on the ability of certifying officers of a venture issuer to design and implement on a cost effective basis DC&P and ICFR as defined in NI 52-109 may result in additional risks to the quality, reliability, transparency and timeliness of interim and annual filings and other reports provided under securities legislation.
Exhibit 99.13
FORM 52-109FV1
CERTIFICATION OF ANNUAL FILINGS
VENTURE ISSUER BASIC CERTIFICATE
I, Hardik Mehta, Chief Financial Officer of Protech Home Medical Corp., certify the following:
1. Review: I have reviewed the AIF, if any, annual financial statements and annual MD&A, including, for greater certainty, all documents and information that are incorporated by reference in the AIF (together, the “annual filings”) of Protech Home Medical Corp. (the “issuer”) for the financial year ended September 30, 2019.
2. No misrepresentations: Based on my knowledge, having exercised reasonable diligence, the annual filings do not contain any untrue statement of a material fact or omit to state a material fact required to be stated or that is necessary to make a statement not misleading in light of the circumstances under which it was made, for the period covered by the annual filings.
3. Fair presentation: Based on my knowledge, having exercised reasonable diligence, the annual financial statements together with the other financial information included in the annual filings fairly present in all material respects the financial condition, financial performance and cash flows of the issuer, as of the date of and for the periods presented in the annual filings.
Date: January 28, 2020
(signed) “Hardik Mehta”
Hardik Mehta
Chief Financial Officer
NOTE TO READER
In contrast to the certificate required for non-venture issuers under National Instrument 52-109 Certification of Disclosure in Issuers’ Annual and Interim Filings (NI 52-109), this Venture Issuer Basic Certificate does not include representations relating to the establishment and maintenance of disclosure controls and procedures (DC&P) and internal control over financial reporting (ICFR), as defined in NI 52-109. In particular, the certifying officers filing this certificate are not making any representations relating to the establishment and maintenance of
I. controls and other procedures designed to provide reasonable assurance that information required to be disclosed by the issuer in its annual filings, interim filings or other reports filed or submitted under securities legislation is recorded, processed, summarized and reported within the time periods specified in securities legislation; and
II. a process to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with the issuer’s GAAP.
The issuer’s certifying officers are responsible for ensuring that processes are in place to provide them with sufficient knowledge to support the representations they are making in this certificate. Investors should be aware that inherent limitations on the ability of certifying officers of a venture issuer to design and implement on a cost effective basis DC&P and ICFR as defined in NI 52-109 may result in additional risks to the quality, reliability, transparency and timeliness of interim and annual filings and other reports provided under securities legislation. |
Exhibit 99.14
Note: [01 Mar 2017] - The following is a consolidation of 13-501F1. It incorporates amendments to this document that came into effect on March 1, 2017. This consolidation is provided for your convenience and should not be relied on as authoritative.
FORM 13-501F1
CLASS 1 REPORTING ISSUERS AND CLASS 3B REPORTING ISSUERS -
PARTICIPATION FEE
MANAGEMENT CERTIFICATION
I, Hardik Mehta, an officer of the reporting issuer noted below have examined this Form 13-50IF 1 (the Form) being submitted hereunder to the Alberta Securities Commission and certify that to my knowledge, having exercised reasonable diligence, the information provided in the Form is complete and accurate.
“Hardik Mehta” January 28, 2020
Name: Hardik Mehta Date:
Title: Chief Financial Officer
Reporting Issuer Name: Protech Home Medical Corp.
End date of previous financial year: September 30, 2019
Type of Reporting Issuer: x Class 1 reporting issuer ¨ Class 3B reporting issuer
Highest Trading Marketplace: TSX Venture Exchange
Market value of listed or quoted equitv securities:
Equity Symbol PTQ
1st Specified Trading Period (dd/mm/yy) 01/10/18 to 31/12/18
Closing price of the security in the class or series on the last trading day of the specified trading period in which such security was listed or quoted on the highest trading marketplace $ 0.6000
(i)
Number of securities in the class or series of such security outstanding at the end of the last trading day of the specified trading period 83,529,000
(ii)
(i) x (ii) $ 50,117,400
Market value of class or series (A)
2nd Specified Trading Period (dd/mm/yy) 01/01/19 to 31/03/19
Closing price of the security in the class or series on the last trading day of the specified trading period in which such security was listed or quoted on the highest trading marketplace $ 0.9300
(iii)
Number of securities in the class or series of such security outstanding at the end of the last trading day of the specified trading period 83,529,000
(iv)
(iii) x (iv) $ 77,681,970
Market value of class or series (B)
3rd Specified Trading Period (dd/mm/yy) 01/04/19 to 30/06/19
Closing price of the security in the class or series on the last trading day of the specified trading period in which such security was listed or quoted on the highest trading marketplace $ 0.7800
(v)
Number of securities in the class or series of such security outstanding at the end of the last trading day of the specified trading period 83,529,000
(vi)
(v) x (vi) $ 65,152,620
Market value of class or series (C)
4th Specified Trading Period (dd/mm/yy) 01/07/19 to 30/09/19
Closing price of the security in the class or series on the last trading day of the specified trading period in which such security was listed or quoted on the highest trading marketplace $ 0.8500
(vii)
Number of securities in the class or series of such security outstanding at the end of the last trading day of the specified trading period 83,529,000
(viii)
(vii) x (viii) $ 70,999,650
Market value of class or series (D)
5th Specified Trading Period (dd/mm/yy) N/A to N/A
Closing price of the security in the class or series on the last trading day of the specified trading period in which such security was listed or quoted on the highest trading marketplace $
(ix)
Number of securities in the class or series of such security outstanding at the end of the last trading day of the specified trading period
(x)
(ix) x (x) $
Market value of class or series (E)
Average Market Value of Class or Series (Calculate the simple average of the market value of the class or series of security for each applicable specified trading period (i.e. A through E above)) $ 65,987,910
(1)
(Repeat the above calculation for each other class or series of equity securities of the reporting issuer (and a subsidiary, if applicable) that was listed or quoted on a marketplace at the end of the previous financial year)
Fair value of outstanding debt securities:
(Provide details of how value was determined) $ 13,952,000
(2)
Capitalization for the previous financial year (l) + (2) $ 79,939,910
Participation Fee $ 3,000.0000
Late Fee, if applicable $ 0.0000
Total Fee Payable $ 3,000.0000
(Participation Fee plus Late Fee)
Exhibit 99.15
PROTECH HOME MEDICAL REPORTS SOLID FOURTH QUARTER AND AUDITED FULL YEAR
FISCAL 2019 FINANCIAL RESULTS
POSTS REVENUE GROWTH OF 15% AND ADJUSTED EBITDA GROWTH OF 39%
NOT FOR DISSEMINATION IN THE UNITED STATES OR FOR DISTRIBUTION TO U.S. NEWSWIRE
SERVICES AND DOES NOT CONSTITUTE AN OFFER OF THE SECURITIES DESCRIBED HEREIN.
Cincinnati, Ohio – January 28, 2020 – Protech Home Medical Corp. (the “Company”) (TSXV: PTQ), a healthcare services company with operations in the U.S., today announced its fourth quarter and audited full year fiscal 2019 financial results and operational highlights. These results reflect the Company’s divesture of the business and assets of Patient Home Monitoring, Inc. (“PHM”) and PHM’s financial results are reported as ‘discontinued operations’ in both fiscal 2019 and fiscal 2018.
Protech will host its Quarterly Earnings Conference Call on Wednesday, January 29, 2020 at 10:00 a.m. (EST). The dial-in number is 1 (800) 319-4610 or 1 (604) 638-5340.
Financial highlights from the fourth quarter and year ended September 30, 2019:
§ | Full-year revenue for fiscal 2019 was $81.0 million compared to $70.5 million for fiscal 2018, representing a 15% increase in revenue year-over-year. |
§ | Revenue for the fourth quarter of 2019 was $19.5 million compared to $18.0 million for the same period in fiscal 2018, an increase of 8%. |
§ | Recurring Revenue increased from $43.6 million in fiscal 2018 to $55.1 million in fiscal 2019, a 26% increase year over year, and represented 68% of total revenue for fiscal 2019 and 67% of total revenue for in the fourth quarter of 2019. |
§ | The ratio of Recurring Revenue to total revenue increased from 62% in fiscal 2018 to 68% in fiscal 2019. |
§ | Adjusted EBITDA for the fourth quarter of 2019 was $3.7 million (19.0% margin), compared to Adjusted EBITDA for the fourth quarter of 2018 of $5.2 million (28.6% margin). Fourth quarter of 2018 was positively affected by out-of-period audit adjustments primarily to inventory and revenue, resulting in a higher Adjusted EBITDA and corresponding margin. |
§ | Adjusted EBITDA for fiscal 2019 was $14.8 million, compared to $10.6 million for fiscal 2018, an increase of 39%. Adjusted EBITDA margin increased to 18.3% for fiscal 2019 from 15.1% for fiscal 2018. |
§ | Cash flow from continuing operations improved from $8.8 million in fiscal 2018 to $10.5 million in fiscal 2019, an increase of 20% |
§ | A cash balance at September 30, 2019 of $12.9 million compared to $4.3 million at September 30, 2018. |
§ | As disclosed on September 10, 2019, the business and assets of PHM, a non-core operation, were sold for approximately $4.5 million. |
Operational highlights from the three months ended September 30, 2019:
§ | Through the Company’s continued use of technology and centralized intake processes, respiratory resupply set-ups and/or deliveries increased to 12,727 for the three months ended September 30, 2019, compared to 10,392 for the same period ended September 30, 2018, an increase of 22%. |
§ | Compared to fiscal 2018, resupply revenue increased by 17%, set-up/deliveries increased by 15% and average revenue/order increased by 2%. |
§ | Compared to 69,500 unique patients served in fiscal 2018, the Company served 76,146 unique patients in fiscal 2019, an increase of 10%. |
§ | Compared to 194,535 unique set-ups/deliveries in fiscal 2018, the Company completed 207,762 unique set-ups/deliveries in fiscal 2019, an increase of 7%. |
§ | As a result of better intake process, utilization, cost rationalization, etc. amongst various other measures, gross margins increase by 1.8% and medical equipment-related depreciation declined by 10% year-over-year. |
§ | The increases in three-month and twelve-month revenue are due to the Company’s integration efforts to standardize regional processes and operations including to various degrees: changing product focus, product mix, sales practices, billing practices, ordering practices, and recurring operational protocols as well as the acquisition of two businesses in fiscal 2019. |
§ | The Company continues to expand its sales reach across ten US states by the addition of experienced sales personnel. |
“I am very pleased with our fiscal 2019 financial results,” said CEO and Chairman Greg Crawford. “For two consecutive years, we have demonstrated consistent revenue and Adjusted EBITDA growth and substantial improvements in EBITDA margins. We have also demonstrated that we can acquire businesses at highly attractive multiples and successfully integrate these businesses onto our platform. Through robust organic growth, and with the two most recent acquisitions consummated in late calendar year 2019, Protech expects to exceed $100 million in annualized revenue at some point in fiscal 2020. In addition to our continuously improving financial results, our balance sheet is extremely healthy with a sizeable cash balance allowing us to focus our attention on larger, more transformative acquisitions. I am extremely proud of the work we have done this year and continue to be extremely confident in our continued financial success, I’d like to thank the entire Protech team for their tireless efforts and stakeholders for all of their continued support”.
Chief Financial Officer Hardik Mehta added, “We continue to grow our business at an impressive rate, far exceeding the industry growth rate. In addition, our recurring revenues have substantially increased over the last year from 62% of total revenue in fiscal 2018 to 68% in fiscal 2019, resulting in a 26% growth in that category. We are particularly pleased that our Adjusted EBITDA margin remains strong and consistent and, more importantly, continues the trend in demonstrating year-over-year operational improvements. These metrics, together with revenue growth, remain a key focus internally from a financial perspective. Going into 2020, our focus will continue to be on improving our margins and ongoing implementation of our targeted acquisition strategy. Finally, as we continually engage with potential acquisition targets, we will continue to use a disciplined approach and will only close transactions that will add the most value to our shareholders.”
The financial statements of the Company for the three and twelve months ended September 30, 2019 and 2018 and accompanying Management Discussion & Analysis (MD&A) are available at www.sedar.com.
ABOUT PROTECH HOME MEDICAL CORP.
The Company provides in-home monitoring and disease management services for patients in the United States healthcare market. The primary business objective of the Company is to create shareholder value by offering a broader range of services to patients in need of in-home monitoring and chronic disease management. The Company’s organic growth strategy is to increase annual revenue per patient by offering multiple services to the same patient, consolidating the patient’s services and making life easier for the patient.
Forward-Looking Statements
Certain statements contained in this press release constitute "forward-looking information" as such term is defined in applicable Canadian securities legislation. The words "may", "would", "could", "should", "potential", "will", "seek", "intend", "plan", "anticipate", "believe", "estimate", "expect" and similar expressions as they relate to the Company, including the Company expecting to exceed $100 million in annualized revenue at some point in fiscal 2020, are intended to identify forward-looking information. All statements other than statements of historical fact may be forward-looking information. Such statements reflect the Company's current views and intentions with respect to future events, and current information available to the Company, and are subject to certain risks, uncertainties and assumptions, including, without limitation: the Company’s ability to maintain/slightly increase its collections ratios; the Company maintaining its gross margins and maintaining its revenue growth; and the Company maintaining its selling, general and administrative expenses. Many factors could cause the actual results, performance or achievements that may be expressed or implied by such forward-looking information to vary from those described herein should one or more of these risks or uncertainties materialize. Examples of such risk factors include, without limitation: credit; market (including equity, commodity, foreign exchange and interest rate); liquidity; operational (including technology and infrastructure); reputational; insurance; strategic; regulatory; legal; environmental; capital adequacy; the general business and economic conditions in the regions in which the Company operates; the ability of the Company to execute on key priorities, including the successful completion of acquisitions, business retention, and strategic plans and to attract, develop and retain key executives; difficulty integrating newly acquired businesses; the ability to implement business strategies and pursue business opportunities; low profit market segments; disruptions in or attacks (including cyber-attacks) on the Company's information technology, internet, network access or other voice or data communications systems or services; the evolution of various types of fraud or other criminal behavior to which the Company is exposed; the failure of third parties to comply with their obligations to the Company or its affiliates; the impact of new and changes to, or application of, current laws and regulations; decline of reimbursement rates; dependence on few payors; possible new drug discoveries; a novel business model; dependence on key suppliers; granting of permits and licenses in a highly regulated business; the overall difficult litigation environment, including in the U.S.; increased competition; changes in foreign currency rates; increased funding costs and market volatility due to market illiquidity and competition for funding; the availability of funds and resources to pursue operations; critical accounting estimates and changes to accounting standards, policies, and methods used by the Company; and the occurrence of natural and unnatural catastrophic events and claims resulting from such events; as well as those risk factors discussed or referred to in the Company’s disclosure documents filed with the securities regulatory authorities in certain provinces of Canada and available at www.sedar.com. Should any factor affect the Company in an unexpected manner, or should assumptions underlying the forward-looking information prove incorrect, the actual results or events may differ materially from the results or events predicted. Any such forward-looking information is expressly qualified in its entirety by this cautionary statement. Moreover, the Company does not assume responsibility for the accuracy or completeness of such forward-looking information. The forward-looking information included in this press release is made as of the date of this press release and the Company undertakes no obligation to publicly update or revise any forward-looking information, other than as required by applicable law.
Non-GAAP Measures
This press release refers to “Adjusted EBITDA” and “Recurring Revenue” which are non-GAAP and non-IFRS financial measures that do not have a standardized meaning prescribed by GAAP or IFRS. The Company’s presentation of these financial measures may not be comparable to similarly titled measures used by other companies. These financial measures are intended to provide additional information to investors concerning the Company’s performance.
Recurring Revenue is defined as the portion of the Company's revenue that is expected to continue in the future. Unlike one-off sales, these revenues are considered by the Company to be predictable, stable and can be counted on to occur at regular intervals going forward with a relatively high degree of certainty.
Adjusted EBITDA is defined as EBITDA excluding stock based compensation and gains/losses on financial derivatives. Adjusted EBITDA is a Non-IFRS measure the Company uses as an indicator of financial health and excludes several items which may be useful in the consideration of the financial condition of the Company, including interest expense, taxes, depreciation, amortization, stock-based compensation, good will impairment and gain/losses on financial derivatives. The following table shows our Non-IFRS measure (Adjusted EBITDA) reconciled to our net income for the indicated periods:
Three Months
Ended Sept 30,
2019 |
Three Months
Ended Sept 30, 2018 |
Fiscal Year
Ended September 30, 2019 |
Fiscal Year
Ended September 30, 2018 |
|||||||||||||
Net income (loss) | 4,580 | 1,392 | (9,141 | ) | (8,459 | ) | ||||||||||
Add back: | ||||||||||||||||
Depreciation and amortization | 4,271 | 3,038 | 13,969 | 15,096 | ||||||||||||
Interest expense (net of interest income) | 252 | 212 | 1,838 | 1,021 | ||||||||||||
Accretion Expense | 153 | 400 | 671 | 885 | ||||||||||||
Transaction costs for debenture issuance | 1,758 | - | 1,758 | - | ||||||||||||
Loss (gain) on financial derivatives | (996 | ) | 22 | (1,129 | ) | (167 | ) | |||||||||
Loss on early extinguishment of debenture | - | - | 1,107 | - | ||||||||||||
Provision for income taxes | 135 | 41 | 269 | 130 | ||||||||||||
EBITDA | 10,153 | 5,105 | 9,342 | 8,506 | ||||||||||||
Stock-based compensation | 726 | 56 | 2,063 | 2,128 | ||||||||||||
Fraud related expenses | (8,172 | ) | - | 1,012 | - | |||||||||||
Expenses for 338(h)(10) election | 452 | - | 1,853 | - | ||||||||||||
Impairment of goodwill | 531 | - | 531 | - | ||||||||||||
Adjusted EBITDA | 3,690 | 5,161 | 14,801 | 10,634 | ||||||||||||
% of Net Revenue | 19.0 | % | 28.6 | % | 18.3 | % | 15.1 | % |
Management uses these non-GAAP measures as key metrics in the evaluation of the Company’s performance and the consolidated financial results. The Company believes these non-GAAP measures are useful to investors in their assessment of the operating performance and the valuation of the Company. In addition, these non-GAAP measures address questions the Company routinely receives from analysts and investors and, in order to assure that all investors have access to similar data, the Company has determined that it is appropriate to make this data available to all investors. However, non-GAAP financial measures are not prepared in accordance with GAAP, and the information is not necessarily comparable to other companies and should be considered as a supplement to, not a substitute for, or superior to, the corresponding measures calculated in accordance with GAAP.
Neither the TSX Venture Exchange nor its Regulation Services Provider (as that term is defined in the policies of the TSX Venture Exchange) accepts responsibility for the adequacy or accuracy of this release.
For further information please visit our website at www.protechhomemedical.com, or contact:
Gregory Crawford
Chief Executive Officer
Protech Home Medical Corp.
859-300-6455
investorinfo@myphm.com
Investor Relations:
Oak Hill Financial Inc.
Jonathan L. Robinson CFA
416-669-1001
jrobinson@oakhillfinancial.ca
Exhibit 99.16
PROTECH HOME MEDICAL SUBMITS APPLICATION FOR LISTING ON THE OTCQX® BEST
MARKET AND RETAINS U.S. CAPITAL MARKETS ADVISORY FIRM
NOT FOR DISSEMINATION IN THE UNITED STATES OR FOR DISTRIBUTION TO U.S. NEWSWIRE SERVICES AND DOES NOT CONSTITUTE AN OFFER OF THE SECURITIES DESCRIBED HEREIN.
Cincinnati, Ohio – February 4, 2020 – Protech Home Medical Corp. (“Protech” or the “Company”) (TSXV: PTQ), a healthcare services company with operations in the U.S., today announced that it has submitted its formal application to have the Company’s shares quoted on the OTCQX® Best Market.
Expanding to the OTCQX Best Market would provide existing shareholders with an additional trading platform to the TSX Venture Exchange in addition to introducing the Company to a broader range of institutional and retail investors in the U.S. In order to qualify for the OTCQX Best Market, issuers must meet high financial standards, follow best practice for corporate governance, demonstrate compliance with certain U.S. securities laws, be current in their disclosures, and have a professional third-party sponsor introduction.
“We are excited for the prospects of trading on the OTCQX Best Market and believe this is the first step towards fulfilling Protech’s ambitions of graduating to a U.S. stock exchange, such as the NASDAQ or NYSE. We welcome the heightened visibility among the investment community that the OTCQX Best Market would be expected to bring”, said Greg Crawford, CEO and Chairman at Protech.
Acceptance for listing the Company’s shares is subject to approval of the OTCQX Best Market. While the Company intends to satisfy all of the applicable listing criteria, no assurance can be given that its application will be approved.
The Company is also pleased to announce that it has retained the services of SABR Capital Management, LLC., to act as its U.S. capital markets advisory group. SABR Capital Management LLC and the Company are planning a series of investment community outreach activities in 2020. These activities will include non-deal road shows and conference participation across the U.S.
Pursuant to the advisory agreement, SABR has been issued 100,008 stock options at an exercise price of $1.10 per share, vesting monthly over 12 months, and will be issued 60,000 common shares of the Company on April 1, 2020, which will be subject to a 12 month contractual hold.
ABOUT PROTECH HOME MEDICAL CORP.
The Company provides in-home monitoring and disease management services for patients in the United States healthcare market.
The primary business objective of the Company is to create shareholder value by offering a broader range of services to patients in need of in-home monitoring and chronic disease management. The Company’s organic growth strategy is to increase annual revenue per patient by offering multiple services to the same patient, consolidating the patient’s services and making life easier for the patient.
Forward-Looking Statements
Certain statements contained in this press release constitute "forward-looking information" as such term is defined in applicable Canadian securities legislation. The words "may", "would", "could", "should", "potential", "will", "seek", "intend", "plan", "anticipate", "believe", "estimate", "expect" and similar expressions as they relate to the Company, including: listing on OTCQX Best Market; the effects and benefits of a OTCQX Best Market listing; and graduating to a U.S. stock exchange, such as the NASDAQ or NYSE; are intended to identify forward-looking information. All statements other than statements of historical fact may be forward-looking information. Such statements reflect the Company's current views and intentions with respect to future events, and current information available to the Company, and are subject to certain risks, uncertainties and assumptions, including, without limitation: the Company meeting OTCQX Best Market listing standards; and capital market participants responding to a OTCQX Best Market listing as anticipated. Many factors could cause the actual results, performance or achievements that may be expressed or implied by such forward-looking information to vary from those described herein should one or more of these risks or uncertainties materialize. Examples of such risk factors include, without limitation: credit; market (including equity, commodity, foreign exchange and interest rate); liquidity; operational (including technology and infrastructure); reputational; insurance; strategic; regulatory; legal; environmental; capital adequacy; the general business and economic conditions in the regions in which the Company operates; the ability of the Company to execute on key priorities, including the successful completion of acquisitions, business retention, and strategic plans and to attract, develop and retain key executives; difficulty integrating newly acquired businesses; the ability to implement business strategies and pursue business opportunities; low profit market segments; disruptions in or attacks (including cyber-attacks) on the Company's information technology, internet, network access or other voice or data communications systems or services; the evolution of various types of fraud or other criminal behavior to which the Company is exposed; the failure of third parties to comply with their obligations to the Company or its affiliates; the impact of new and changes to, or application of, current laws and regulations; decline of reimbursement rates; dependence on few payors; possible new drug discoveries; a novel business model; dependence on key suppliers; granting of permits and licenses in a highly regulated business; the overall difficult litigation environment, including in the U.S.; increased competition; changes in foreign currency rates; increased funding costs and market volatility due to market illiquidity and competition for funding; the availability of funds and resources to pursue operations; critical accounting estimates and changes to accounting standards, policies, and methods used by the Company; and the occurrence of natural and unnatural catastrophic events and claims resulting from such events; as well as those risk factors discussed or referred to in the Company’s disclosure documents filed with the securities regulatory authorities in certain provinces of Canada and available at www.sedar.com. Should any factor affect the Company in an unexpected manner, or should assumptions underlying the forward-looking information prove incorrect, the actual results or events may differ materially from the results or events predicted. Any such forward-looking information is expressly qualified in its entirety by this cautionary statement. Moreover, the Company does not assume responsibility for the accuracy or completeness of such forward-looking information. The forward-looking information included in this press release is made as of the date of this press release and the Company undertakes no obligation to publicly update or revise any forward-looking information, other than as required by applicable law.
The securities referred to in this news release have not been, nor will they be, registered under the United States Securities Act of 1933, as amended, and may not be offered or sold within the United States or to, or for the account or benefit of, U.S. persons absent U.S. registration or an applicable exemption from the U.S. registration requirements. This news release does not constitute an offer for sale of securities, nor a solicitation for offers to buy any securities. Any public offering of securities in the United States must be made by means of a prospectus containing detailed information about the company and management, as well as financial statements.
For further information please visit our website at www.protechhomemedical.com, or contact:
Gregory Crawford
Chief Executive Officer
Protech Home Medical Corp.
859-300-6455
investorinfo@myphm.com
Braden Ferrari
Managing Partner
SABR Capital Management, LLC
212-652-3268
braden@sabrcapitalmanagement.com
Exhibit 99.17
ecurity Class Holder Account Number Form of Proxy - Annual General Meeting to be held on February 5, 2020 This Form of Proxy is solicited by and on behalf of Management. Notes to proxy 1. Every holder has the right to appoint some other person or company of their choice, who need not be a holder, to attend and act on their behalf at the meeting or any adjournment or postponement thereof. If you wish to appoint a person or company other than the persons whose names are printed herein, please insert the name of your chosen proxyholder in the space provided (see reverse). 2. If the securities are registered in the name of more than one owner (for example, joint ownership, trustees, executors, etc.), then all those registered should sign this proxy. If you are voting on behalf of a corporation or another individual you must sign this proxy with signing capacity stated, and you may be required to provide documentation evidencing your power to sign this proxy. 3. This proxy should be signed in the exact manner as the name(s) appear(s) on the proxy. 4. If this proxy is not dated, it will be deemed to bear the date on which it is mailed by Management to the holder. 5. The securities represented by this proxy will be voted as directed by the holder, however, if such a direction is not made in respect of any matter, this proxy will be voted as recommended by Management. 6. The securities represented by this proxy will be voted in favour or withheld from voting or voted against each of the matters described herein, as applicable, in accordance with the instructions of the holder, on any ballot that may be called for and, if the holder has specified a choice with respect to any matter to be acted on, the securities will be voted accordingly. 7. This proxy confers discretionary authority in respect of amendments or variations to matters identified in the Notice of Meeting or other matters that may properly come before the meeting or any adjournment or postponement thereof. 8. This proxy should be read in conjunction with the accompanying documentation provided by Management. Proxies submitted must be received by 11:00 AM (Eastern Time) on Monday, February 3, 2020. VOTE USING THE TELEPHONE OR INTERNET 24 HOURS A DAY 7 DAYS A WEEK! To Vote Using the Telephone • Call the number listed BELOW from a touch tone telephone. 1-866-732-VOTE (8683) Toll Free To Vote Using the Internet • Go to the following web site: www.investorvote.com • Smartphone? Scan the QR code to vote now. If you vote by telephone or the Internet, DO NOT mail back this proxy. Voting by mail may be the only method for securities held in the name of a corporation or securities being voted on behalf of another individual. Voting by mail or by Internet are the only methods by which a holder may appoint a person as proxyholder other than the Management nominees named on the reverse of this proxy. Instead of mailing this proxy, you may choose one of the two voting methods outlined above to vote this proxy. To vote by telephone or the Internet, you will need to provide your CONTROL NUMBER listed below. CONTROL NUMBER ------- Fold -------
Appointment of Proxyholder I/We being holder(s) of Protech Home Medical Corp. hereby appoint: Gregory Crawford, CEO, or failing him, Hardik Mehta, CFO, OR Print the name of the person you are appointing if this person is someone other than the Chairman of the Meeting. as my/our proxyholder with full power of substitution and to attend, act and to vote for and on behalf of the shareholder in accordance with the following direction (or if no directions have been given, as the proxyholder sees fit) and all other matters that may properly come before the Annual General Meeting of shareholders of Protech Home Medical Corp. to be held at DoubleTree Suites by Hilton Hotel Naples, 12200 Tamiami Trail North, Naples, Florida 34110, on Wednesday, February 5, 2020 at 11:00 AM (Eastern Time) and at any adjournment or postponement thereof. VOTING RECOMMENDATIONS ARE INDICATED BY HIGHLIGHTED TEXT OVER THE BOXES. 1. Election of Directors 01. Gregory Crawford For Withhold 02. Mark Greenberg For Withhold 03. Eugene Ewing For Withhold 2. Appointment of Auditors Appointment of MNP LLP, as Auditors of the Corporation for the ensuing year and authorizing the Directors to fix their remuneration. For Withhold ------- Fold Appointment of Proxyholder I/We being holder(s) of Protech Home Medical Corp. hereby appoint: Gregory Crawford, CEO, or failing him, Hardik Mehta, CFO, OR Print the name of the person you are appointing if this person is someone other than the Chairman of the Meeting. as my/our proxyholder with full power of substitution and to attend, act and to vote for and on behalf of the shareholder in accordance with the following direction (or if no directions have been given, as the proxyholder sees fit) and all other matters that may properly come before the Annual General Meeting of shareholders of Protech Home Medical Corp. to be held at DoubleTree Suites by Hilton Hotel Naples, 12200 Tamiami Trail North, Naples, Florida 34110, on Wednesday, February 5, 2020 at 11:00 AM (Eastern Time) and at any adjournment or postponement thereof. VOTING RECOMMENDATIONS ARE INDICATED BY HIGHLIGHTED TEXT OVER THE BOXES. 1. Election of Directors 01. Gregory Crawford For Withhold 02. Mark Greenberg For Withhold 03. Eugene Ewing For Withhold 2. Appointment of Auditors Appointment of MNP LLP, as Auditors of the Corporation for the ensuing year and authorizing the Directors to fix their remuneration. For Withhold Authorized Signature(s) - This section must be completed for your instructions to be executed. I/We authorize you to act in accordance with my/our instructions set out above. I/We hereby revoke any proxy previously given with respect to the Meeting. If no voting instructions are indicated above, this Proxy will be voted as recommended by Management. Signature(s) Date Interim Financial Statements - Mark this box if you would like to receive Interim Financial Statements and accompanying Management’s Discussion and Analysis by mail. Annual Financial Statements - Mark this box if you would like to receive the Annual Financial Statements and accompanying Management’s Discussion and Analysis by mail. If you are not mailing back your proxy, you may register online to receive the above financial report(s) by mail at www.computershare.com/mailinglist. I H P Q 3 0 3 2 8 8 A R 1
Exhibit 99.18
Protech Home Medical Announces DATE AND TIME
FOR Q1 Fiscal 2020 QUARTERLY CONFERENCE CALL
Cincinnati, Ohio – February 18, 2020 – Protech Home Medical Corp. (the “Company”) (TSXV: PTQ), a healthcare services company with operations in the U.S., today announced that it will host its Q1 Fiscal 2020 Earnings Conference Call on Wednesday, February 26, 2020 at 10:00 a.m. (EST).
Conference Call Details:
Wednesday, February 26, 2020 at 10:00 a.m. (EST).
Canada/US Toll Free: | 1 (800) 319 4610 |
International: | 1 (604) 638 5340 |
ABOUT PROTECH HOME MEDICAL
The Company provides in-home monitoring and disease management services for patients in the United States healthcare market. It seeks to continue to expand its offerings to include the management of several chronic disease states focusing on patients with heart or pulmonary disease, sleep disorders, reduced mobility and other chronic health conditions. The primary business objective of the Company is to create shareholder value by offering a broader range of services to patients in need of in-home monitoring and chronic disease management. The Company’s organic growth strategy is to increase annual revenue per patient by offering multiple services to the same patient, consolidating the patient’s services and making life easier for the patient.
Neither the TSX Venture Exchange nor its Regulation Services Provider (as that term is defined in the policies of the TSX Venture Exchange) accepts responsibility for the adequacy or accuracy of this release.
For further information please visit our website at www.protechhomemedical.com, or contact:
Gregory Crawford
Chief Executive Officer
Protech Home Medical Corp.
859-300-6455
investorinfo@myphm.com
Investor Relations:
Oak Hill Financial Inc.
Jonathan L. Robinson CFA
416-669-1001
jrobinson@oakhillfinancial.ca
Exhibit 99.19
PROTECH HOME MEDICAL IS PROUD TO BE NAMED
TO THE 2020 TSX VENTURE 50 GROUP OF TOP PERFORMING COMPANIES
Cincinnati, Ohio – February 24, 2020 – Protech Home Medical Corp. (the “Company”) (TSXV: PTQ), a healthcare services company with operations in the U.S., is pleased to announce it has been named to the 2020 TSX Venture 50TM. This is the TSX Venture Exchange’s annual ranking of top performing companies on the TSX Venture Exchange. Each of the top 10 companies in each of five major industry sectors have been identified as leaders in creating shareholder value based on three key criteria: share price appreciation, market capitalization growth and trading volume. There are over of 1,600 companies listed on the TSX Venture Exchange.
“2019 was a dynamic year for us, we strengthened our core business, developed more sales personnel, established strong scalable business processes, and completed two accretive acquisitions,” commented Greg Crawford, Chairman and Chief Executive Officer of the Company. “We are honored to be recognized and named to the TSX Venture 50 which serves as confirmation that our three-pronged strategy is positioning our company and shareholders for success. With acceleration of growth through our existing customer base and new acquisition opportunities, as well as a laser focus on sustainable margin expansion , our outlook for 2020 and beyond is extremely positive and we are excited to share all of our developments with our current and future shareholders. I’d like to thank the entire Protech team for their tireless efforts and its stakeholders for all their continued support.”
The Company is featured in a TSX Venture 50 video available at http://bit.ly/tsxptq.
ABOUT PROTECH HOME MEDICAL
The Company provides in-home monitoring and disease management services for patients in the United States healthcare market. It seeks to continue to expand its offerings to include the management of several chronic disease states focusing on patients with heart or pulmonary disease, sleep disorders, reduced mobility and other chronic health conditions. The primary business objective of the Company is to create shareholder value by offering a broader range of services to patients in need of in-home monitoring and chronic disease management. The Company’s organic growth strategy is to increase annual revenue per patient by offering multiple services to the same patient, consolidating the patient’s services and making life easier for the patient.
Neither the TSX Venture Exchange nor its Regulation Services Provider (as that term is defined in the policies of the TSX Venture Exchange) accepts responsibility for the adequacy or accuracy of this release.
Forward-Looking Statements
Certain statements contained in this press release constitute "forward-looking information" as such term is defined in applicable Canadian securities legislation. The words "may", "would", "could", "should", "potential", "will", "seek", "intend", "plan", "anticipate", "believe", "estimate", "expect" and similar expressions as they relate to the Company,; are intended to identify forward-looking information. All statements other than statements of historical fact may be forward-looking information. Such statements reflect the Company's current views and intentions with respect to future events, and current information available to the Company, and are subject to certain risks, uncertainties and assumptions.. Many factors could cause the actual results, performance or achievements that may be expressed or implied by such forward-looking information to vary from those described herein should one or more of these risks or uncertainties materialize. Examples of such risk factors include, without limitation: credit; market (including equity, commodity, foreign exchange and interest rate); liquidity; operational (including technology and infrastructure); reputational; insurance; strategic; regulatory; legal; environmental; capital adequacy; the general business and economic conditions in the regions in which the Company operates; the ability of the Company to execute on key priorities, including the successful completion of acquisitions, business retention, and strategic plans and to attract, develop and retain key executives; difficulty integrating newly acquired businesses; the ability to implement business strategies and pursue business opportunities; low profit market segments; disruptions in or attacks (including cyber-attacks) on the Company's information technology, internet, network access or other voice or data communications systems or services; the evolution of various types of fraud or other criminal behavior to which the Company is exposed; the failure of third parties to comply with their obligations to the Company or its affiliates; the impact of new and changes to, or application of, current laws and regulations; decline of reimbursement rates; dependence on few payors; possible new drug discoveries; a novel business model; dependence on key suppliers; granting of permits and licenses in a highly regulated business; the overall difficult litigation environment, including in the U.S.; increased competition; changes in foreign currency rates; increased funding costs and market volatility due to market illiquidity and competition for funding; the availability of funds and resources to pursue operations; critical accounting estimates and changes to accounting standards, policies, and methods used by the Company; and the occurrence of natural and unnatural catastrophic events and claims resulting from such events; as well as those risk factors discussed or referred to in the Company’s disclosure documents filed with the securities regulatory authorities in certain provinces of Canada and available at www.sedar.com. Should any factor affect the Company in an unexpected manner, or should assumptions underlying the forward-looking information prove incorrect, the actual results or events may differ materially from the results or events predicted. Any such forward-looking information is expressly qualified in its entirety by this cautionary statement. Moreover, the Company does not assume responsibility for the accuracy or completeness of such forward-looking information. The forward-looking information included in this press release is made as of the date of this press release and the Company undertakes no obligation to publicly update or revise any forward-looking information, other than as required by applicable law.
For further information please visit our website at www.protechhomemedical.com, or contact:
Gregory Crawford
Chief Executive Officer
Protech Home Medical Corp.
859-300-6455
investorinfo@myphm.com
Investor Relations:
Oak Hill Financial Inc.
Jonathan L. Robinson CFA
416-669-1001
jrobinson@oakhillfinancial.ca
Exhibit 99.20
PROTECH HOME MEDICAL REPORTS SOLID Q1 2020 FINANCIAL RESULTS
POSTS REVENUE GROWTH OF 11% AND ADJUSTED EBITDA GROWTH OF 18%
Cincinnati, Ohio – February 26, 2020 – Protech Home Medical Corp. (the “Company”) (TSXV: PTQ), a healthcare services company with operations in the U.S., today announced its first quarter fiscal 2020 financial results and operational highlights. These results pertain to the three month period ended December 31, 2019.
Protech will host its Quarterly Earnings Conference Call on Wednesday, February 26, 2020 at 10:00 a.m. (EST). The dial-in number is 1 (800) 319-4610 or 1 (604) 638-5340.
Financial highlights for the first fiscal quarter ended December 31, 2019:
§ | Revenue for Q1 2020 was $22.8 million compared to $20.5 million for Q1 2019, representing an 11% increase in revenue year-over-year. |
§ | Gross margin in Q1 2020 was 74%, up from 70% in Q1 2019 as a result of ongoing margin enhancement efforts including patient intake and distribution optimization. |
§ | Adjusted EBITDA for the Q1 2020 was $4.4 million (19.4% margin), compared to Adjusted EBITDA for Q1 2019 of $3.7 million (18.2% margin), representing an 18% increase year-over-year. |
§ | Cash flow from continuing operations was $4.4 million in Q1 2020 compared to $2.5 million in Q1 2019, an increase of 80%. |
§ | The Company reported $8.4 million of cash on hand as at December 31, 2019 compared to $6.2 million at December 31, 2018. |
Operational highlights for the three months ended December 31, 2019:
§ | Through the Company’s continued use of technology and centralized intake processes, respiratory resupply set-ups and/or deliveries increased to 13,439 for the three months ended December 31, 2019, compared to 11,279 for the same period ended December 31, 2018, an increase of 19%. |
§ | Compared to Q1 2019, resupply revenue increased by 24%, set-up/deliveries increased by 19% |
§ | The Company’s customer base increased 25% year over year from 31,199 unique patients served in Q1 2019 to 39,070 unique patients in Q1 2020. |
§ | Compared to 50,943 unique set-ups/deliveries in Q1 2019, the Company completed 62,999 unique set-ups/deliveries in Q1 2020, an increase of 24%. |
§ | The Company continues to expand its sales reach across ten U.S. states by the addition of experienced sales personnel. |
“I am very pleased with our first quarter fiscal 2020 financial results,” said CEO and Chairman Greg Crawford. “For eight consecutive quarters, we have demonstrated consistent and growing revenue, both organically and further enhanced by acquisitions. Over the last six quarters, our Adjusted EBITDA margins have been growing demonstrably and have been consistently above 18%. We at Protech are very excited and enthusiastic about 2020, as we believe we will hit the $100 million revenue run rate during the year. With an extremely healthy balance sheet our focus for 2020 is to seek larger, more transformative acquisitions. Once again, I’d like to thank the entire Protech team for their tireless efforts and stakeholders for all of their continued support”.
Chief Financial Officer Hardik Mehta added, “We are extremely pleased that our Adjusted EBITDA margin remains strong and we are growing across the company. This continues the trend in demonstrating year-over-year operational improvements and revenue growth at a rate estimated to be in excess of the industry growth rate. Our acquisition pipeline remains strong and our focus is on highly accretive acquisitions posting current annual revenue in the $6M to $20M range”.
The financial statements of the Company for the three months ended December 31, 2019 and 2018 and accompanying Management Discussion & Analysis (MD&A) are available at www.sedar.com.
ABOUT PROTECH HOME MEDICAL CORP.
The Company provides in-home monitoring and disease management services for patients in the United States healthcare market. The primary business objective of the Company is to create shareholder value by offering a broader range of services to patients in need of in-home monitoring and chronic disease management. The Company’s organic growth strategy is to increase annual revenue per patient by offering multiple services to the same patient, consolidating the patient’s services and making life easier for the patient.
Forward-Looking Statements
Certain statements contained in this press release constitute "forward-looking information" as such term is defined in applicable Canadian securities legislation. The words "may", "would", "could", "should", "potential", "will", "seek", "intend", "plan", "anticipate", "believe", "estimate", "expect" and similar expressions as they relate to the Company, including the Company expecting to exceed $100 million in annualized revenue at some point in fiscal 2020, are intended to identify forward-looking information. All statements other than statements of historical fact may be forward-looking information. Such statements reflect the Company's current views and intentions with respect to future events, and current information available to the Company, and are subject to certain risks, uncertainties and assumptions, including, without limitation: the Company’s ability to maintain/slightly increase its collections ratios; the Company maintaining its gross margins and maintaining its revenue growth; and the Company maintaining its selling, general and administrative expenses. Many factors could cause the actual results, performance or achievements that may be expressed or implied by such forward-looking information to vary from those described herein should one or more of these risks or uncertainties materialize. Examples of such risk factors include, without limitation: credit; market (including equity, commodity, foreign exchange and interest rate); liquidity; operational (including technology and infrastructure); reputational; insurance; strategic; regulatory; legal; environmental; capital adequacy; the general business and economic conditions in the regions in which the Company operates; the ability of the Company to execute on key priorities, including the successful completion of acquisitions, business retention, and strategic plans and to attract, develop and retain key executives; difficulty integrating newly acquired businesses; the ability to implement business strategies and pursue business opportunities; low profit market segments; disruptions in or attacks (including cyber-attacks) on the Company's information technology, internet, network access or other voice or data communications systems or services; the evolution of various types of fraud or other criminal behavior to which the Company is exposed; the failure of third parties to comply with their obligations to the Company or its affiliates; the impact of new and changes to, or application of, current laws and regulations; decline of reimbursement rates; dependence on few payors; possible new drug discoveries; a novel business model; dependence on key suppliers; granting of permits and licenses in a highly regulated business; the overall difficult litigation environment, including in the U.S.; increased competition; changes in foreign currency rates; increased funding costs and market volatility due to market illiquidity and competition for funding; the availability of funds and resources to pursue operations; critical accounting estimates and changes to accounting standards, policies, and methods used by the Company; and the occurrence of natural and unnatural catastrophic events and claims resulting from such events; as well as those risk factors discussed or referred to in the Company’s disclosure documents filed with the securities regulatory authorities in certain provinces of Canada and available at www.sedar.com. Should any factor affect the Company in an unexpected manner, or should assumptions underlying the forward-looking information prove incorrect, the actual results or events may differ materially from the results or events predicted. Any such forward-looking information is expressly qualified in its entirety by this cautionary statement. Moreover, the Company does not assume responsibility for the accuracy or completeness of such forward-looking information. The forward-looking information included in this press release is made as of the date of this press release and the Company undertakes no obligation to publicly update or revise any forward-looking information, other than as required by applicable law.
Non-GAAP Measures
This press release refers to “Adjusted EBITDA” which is a non-GAAP and non-IFRS financial measure that does not have a standardized meaning prescribed by GAAP or IFRS. The Company’s presentation of this financial measure may not be comparable to similarly titled measures used by other companies. This financial measure is intended to provide additional information to investors concerning the Company’s performance. Adjusted EBITDA is defined as EBITDA excluding stock-based compensation. Adjusted EBITDA is a non-IFRS measure the Company uses as an indicator of financial health and excludes several items which may be useful in the consideration of the financial condition of the Company, including interest expense, income taxes, depreciation, amortization, stock-based compensation, goodwill impairment and change in fair value of debentures and financial derivatives. The following table shows our non-IFRS measure (Adjusted EBITDA) reconciled to our net income for the indicated periods:
Three Months Ended
Dec 31, 2019 |
Three Months Ended
Dec 31, 2018 |
|||||||
Net income (loss) from continuing operations | $ | (1,758 | ) | $ | (386 | ) | ||
Add back: | ||||||||
Depreciation and amortization | 4,790 | 3,318 | ||||||
Interest expense (net of interest income) | 604 | 396 | ||||||
Change in fair value of debentures and derivatives | 735 | (68 | ) | |||||
Provision for income taxes | - | (58 | ) | |||||
EBITDA | $ | 4,371 | $ | 3,202 | ||||
Stock-based compensation | 42 | 530 | ||||||
Adjusted EBITDA | $ | 4,413 | $ | 3,732 | ||||
% of Net Revenue | 19.4 | % | 18.2 | % |
Management uses this non-IFRS measure as a key metric in the evaluation of the Company’s performance and the consolidated financial results. The Company believes this non-IFRS measure is useful to investors in their assessment of the operating performance and the valuation of the Company. In addition, this non-IFRS measure addresses questions the Company routinely receives from analysts and investors and, in order to assure that all investors have access to similar data, the Company has determined that it is appropriate to make this data available to all investors. However, non-IFRS financial measures are not prepared in accordance with IFRS, and the information is not necessarily comparable to other companies and should be considered as a supplement to, not a substitute for, or superior to, the corresponding measures calculated in accordance with IFRS.
Neither the TSX Venture Exchange nor its Regulation Services Provider (as that term is defined in the policies of the TSX Venture Exchange) accepts responsibility for the adequacy or accuracy of this release.
For further information please visit our website at www.protechhomemedical.com, or contact:
Gregory Crawford
Chief Executive Officer
Protech Home Medical Corp.
859-300-6455
investorinfo@myphm.com
Investor Relations:
Oak Hill Financial Inc.
Jonathan L. Robinson CFA
416-669-1001
jrobinson@oakhillfinancial.ca
Exhibit 99.21
1st Quarter 2020 |
|
Management’s Discussion and Analysis For the Quarter Ended December 31, 2019 |
Protech Home Medical Corp. |
|
MANAGEMENT’S DISCUSSION AND ANALYSIS December 31, 2019 and 2018 (Dollar amounts expressed in thousands of Canadian Dollars) |
The following Management’s Discussion and Analysis (“MD&A”) of the financial condition and results of operations of Protech Home Medical Corp. (“Protech” or the “Company”), prepared as of February 26, 2020 and should be read in conjunction with the consolidated financial statements for the quarter ended December 31, 2019, including the notes therein. The consolidated financial statements have been prepared in accordance with International Financial Reporting Standards (“IFRS”). Unless otherwise specified, all financial data is presented in Canadian dollars. The words “we”, “our”, “us”, “Company”, and “Protech” refer to Protech Home Medical Corp and/or the management and employees of the Company.
Additional information relevant to the Company is available for review on SEDAR at www.sedar.com.
Table of Contents
Caution Regarding Forward-Looking Statements | Page 2 |
Selected Quarterly Information | Page 3 |
About Our Business and Operating Results | Pages 3 – 6 |
Financial Position | Pages 6 – 9 |
Accounting and Disclosure Matters | Pages 9 – 11 |
Financial Instruments and Risk Management | Page 12 |
Risk Factors | Pages 13 – 16 |
CAUTION REGARDING FORWARD-LOOKING STATEMENTS
Information included or incorporated by reference in this report may contain forward-looking statements. This information may involve known and unknown risks, uncertainties, and other factors which may cause our actual results, performance, or achievements to be materially different from the future results, performance, or achievements expressed or implied by any forward-looking statements. Forward-looking statements, which involve assumptions and describe our future, strategies, and expectations, are generally identifiable by use of the words “may,” “will,” “should,” “expect,” “anticipate,” “estimate,” “believe,” “plan,” “intend” or “project” or the negative of these words or other variations on these words or comparable terminology. Readers are cautioned regarding statements discussing profitability; growth strategies; anticipated trends in our industry; our future financing plans; and our anticipated needs for working capital. Actual events or results may differ materially from those discussed in forward- looking statements. There can be no assurance that the forward-looking statements contained in this report will in fact occur. The Company bases its forward-looking statements on information currently available to it and assumes no obligation to update them.
THE FORWARD-LOOKING INFORMATION CONTAINED IN THIS MD&A PRESENTS THE EXPECTATIONS OF THE COMPANY AS OF THE DATE OF THIS MD&A AND, ACCORDINGLY, IS SUBJECT TO CHANGE AFTER SUCH DATE. READERS SHOULD NOT PLACE UNDUE IMPORTANCE ON FORWARD-LOOKING INFORMATION AND SHOULD NOT RELY UPON THIS INFORMATION AS OF ANY OTHER DATE. WHILE THE COMPANY MAY ELECT TO, THE COMPANY DOES NOT UNDERTAKE TO UPDATE THIS INFORMATION AT ANY PARTICULAR TIME EXCEPT AS REQUIRED BY APPLICABLE SECURITIES LEGISLATION.
Page | 2 |
|
MANAGEMENT’S DISCUSSION AND ANALYSIS December 31, 2019 and 2018 (Tabular Dollar amounts expressed in thousands of Canadian Dollars) |
1ST QUARTER FISCAL 2020 HIGHLIGHTS
On July 29, 2019, the Company sold all the assets of one of its subsidiaries, Patient Home Monitoring, Inc. The condensed consolidated financial statements and the notes reflect Patient Home Monitoring, Inc. as a discontinued operation. Prior year amounts have been reclassified in order to be comparable to the current year presentation.
- | Increased revenues by $2,249, or 11%, from the quarter ended December 31, 2018 |
- | Completed two acquisitions as part of its acquisition strategy |
- | Increased the number of respiratory resupply set-ups of 11,279 in the quarter ended December 31, 2018 to 13,439 in the quarter ended December 31, 2019, an increase of 19% |
- | Increased the number of equipment set-ups of 50,943 in the quarter ended December 31, 2018 to 62,999 in the quarter ended December 31, 2019, an increase of 24% |
- | Gross margin in the quarter ended December 31, 2019 was 74%, an increase from 70% in the over prior year |
- | Generated Adjusted EBITDA of $4,413, a 19% increase from the prior year $3,722 |
- | Cash on hand of $8,363 at December 31, 2019 |
SELECTED INFORMATION
For the quarters ended | ||||||||
December 31, 2019 |
December 31, 2018 |
|||||||
Number of patients serviced | 39,070 | 31,199 | ||||||
Number of equipment set-ups or deliveries | 62,999 | 50,943 | ||||||
Respiratory resupply set-ups or deliveries | 13,439 | 11,279 | ||||||
Adjusted EBITDA(1) | $ | 4,413 | $ | 3,732 | ||||
Cash | $ | 8,363 | $ | 6,249 |
(1) Refer to page five for definition of Adjusted earnings before interest, taxes, depreciation, and amortization (“EBITDA”)
The words “we”, “our”, “us”, “Company”, and “Protech” refer to Protech Home Medical Corp. and/or the management and employees of the Company.
ABOUT OUR BUSINESS
Protech business objective
The explosive growth in the number of elderly patients in the US healthcare market is creating pressure to provide more efficient delivery systems. Healthcare providers, such as hospitals, physicians and pharmacies, are seeking partners that can offer a range of products and services that improve outcomes, reduce hospital readmissions and help control costs. Protech fills this need by delivering a growing number of specialized products and services to achieve these goals. Protech seeks to provide an ever-expanding line of products and services over larger geographic regions within the United States using several growth strategies.
Future Outlook
Protech expects to generate net profit and positive adjusted EBITDA, excluding IFRS treatment of non-cash items. Our top priority continues to be the generation of operational net profit, positive cash flow, and positive EBITDA in fiscal year 2020 and beyond. As we continue to expand in our existing markets, we plan to leverage our business platforms to enter new markets. As we continue to grow and achieve scale, the increasing cash generated from operations will be used to market our service and to gain market share. Our continued integration and rationalization, as well as our acquisitions, have given us a focus and path towards profitability at each business unit.
Going forward, we seek to find ways to continue to grow our customer base and penetrate these markets, while continuing to streamline our operational platform and generate positive cash flow and operational profits. We will continue to improve on operational efficiencies and call center management as they are key execution points in order to maintain our healthy gross margin while growing revenues via the cross selling of services to existing and acquired patients.
Page | 3 |
|
MANAGEMENT’S DISCUSSION AND ANALYSIS December 31, 2019 (Tabular Dollar amounts expressed in thousands of Canadian Dollars) |
OPERATING RESULTS
Accounting policies and estimates
The consolidated financial statements for the quarter ended December 31, 2019 are prepared under International Financial Reporting Standards (“IFRS”) issued by the governing body of the International Accounting Standards Board (“IASB”). The preparation of financial statements in conformity with IFRS requires management to make estimates and assumptions. These estimates and assumptions affect the reported amounts of assets and liabilities, disclosures of contingent assets and liabilities, and the reported amounts of revenues and expenses for the period of consolidated financial statements.
IFRS accounting treatment
Management does not rely upon non-cash IFRS accounting treatment of certain items such as impairment of goodwill and intangible assets, changes in the fair value of financial derivatives, stock based compensation and amortization of intangible assets when planning, monitoring, and evaluating the Company’ s performance or in making financial decisions.
Non-IFRS measures
Throughout this MD&A, references are made to several measures which are believed to be meaningful in the assessment of the Company’ s performance. These metrics are non-standard measures under IFRS and may not be identical to similarly to it led measures reported by other companies. Also, in the future, we may disclose different non- IFRS financial measures to help our investors more meaningfully evaluate and compare our future results of operations to our previously reported results of operations. Readers are cautioned that the disclosure of these items is meant to add to, and not replace, the discussion of financial results as determined in accordance with IFRS. The primary purpose of these non-IFRS measures is to provide supplemental information that may prove useful to investors who wish to consider the impact of certain non-cash or uncontrollable items on the Company’ s operating performance.
EBITDA and Adjusted EBITDA
In calculating EBITDA and adjusted EBITDA certain items (mostly non-cash) are excluded from net income (loss) including interest, taxes, depreciation, amortization, change in fair value of debentures and derivative, stock-based compensation, and goodwill impairment charges. Set forth below are descriptions of the financial items that have been excluded from net income or loss to calculate EBITDA and Adjusted EBITDA and the material limitations associated with using these non-IFRS financial measures as compared to net income or loss.
- | Depreciation and amortization expense may be useful for investors to consider because they generally represent the wear and tear on our property and equipment used in our operations and amortization of intangibles valued in purchase accounting. However, we do not believe these charges necessarily reflect the current and ongoing cash charges related to our operating costs. |
- | The amount of interest expense we incur or interest income we generate may be useful for investors to consider and may result in current cash inflows or outflows. However, we do not consider the amount of interest expense or interest income to be a representative component of the day-to-day operating performance of our business. |
- | Change in fair value of debentures and derivative may be useful for investors to consider as it represents changes in the fair value of debentures, driven by changes in the trading price of the debentures. These changes are non- cash, as the settlement of the underlying debenture will be at the face value. |
- | Provision (benefit) for income taxes may be useful for investors to consider because it generally represents the taxes which may be payable for the period and the change in deferred income taxes and may reduce the amount of funds otherwise available for use. However, we do not consider the amount of income tax expense to be a representative component of the day-to-day operating performance of our business. |
- | Stock-based compensation may be useful for investors to consider because it is an estimate of the non-cash component of compensation received by the Company’s directors, officers, employees, and consultants. However, stock-based compensation is being excluded from the Company’ s operating expenses because the decisions which gave rise to these expenses were not made to increase revenue in a particular period but were made for the Company’ s long-term benefit over multiple periods. While strategic decisions, such as those to issue stock-based awards are made to further the Company’ s long-term strategic objectives and do impact the Company’s earnings under IFRS, these items affect multiple periods and management is not able to change or affect these items within any period. |
Management uses both IFRS and non-IFRS measures when planning, monitoring, and evaluating the Company’s performance.
The following table of adjusted EBITDA show our IFRS measures reconciled to EBITDA (non-IFRS measure) for the indicated periods. The table of net (loss) income is also measured based on IFRS. Both the tables are shown net of discontinued operations. Discontinued operations are comprised of the earnings after tax of discontinued operations until divestiture and the gain or loss after tax on sale, less costs to sell.
Page | 4 |
|
MANAGEMENT’S DISCUSSION AND ANALYSIS December 31, 2019 (Tabular Dollar amounts expressed in thousands of Canadian Dollars) |
Three months ended
December 31, 2019 |
Three months ended
December 31, 2018 |
|||||||
Net loss from continuing operations | $ | (1,758 | ) | $ | (386 | ) | ||
Add back: | ||||||||
Depreciation and amortization | 4,790 | 3,318 | ||||||
Interest expense, net | 604 | 396 | ||||||
Change in fair value of debentures and derivative | 735 | (68 | ) | |||||
Provision (benefit) for income taxes | - | (58 | ) | |||||
EBITDA | $ | 4,371 | $ | 3,202 | ||||
Stock-based compensation | 42 | 530 | ||||||
Adjusted EBITDA | $ | 4,413 | $ | 3,732 |
Three Months Ended | Three Months Ended | |||||||
December 31, 2019 | December 31, 2018 | |||||||
Revenue | $ | 22,769 | $ | 20,509 | ||||
Cost of revenue | 6,029 | 6,230 | ||||||
Gross margin | $ | 16,740 | $ | 14,279 | ||||
Gross margin % | 74 | % | 70 | % | ||||
Selling, general, and administrative | 12,552 | 10,543 | ||||||
Depreciation | 4,551 | 3,167 | ||||||
Amortization of intangible assets | 239 | 151 | ||||||
Stock-based compensation | 42 | 530 | ||||||
Other expense | (146 | ) | 6 | |||||
Gain on disposals of property and equipment | (79 | ) | (2 | ) | ||||
Interest expense | 604 | 396 | ||||||
Change in fair value of debentures and derivative | 735 | (68 | ) | |||||
Provision (benefit) for income taxes | - | (58 | ) | |||||
Net income (loss) from continuing operations | (1,758 | ) | (386 | ) | ||||
Income from discontinued operations | - | 521 | ||||||
Net income (loss) | $ | (1,758 | ) | $ | 135 | |||
Income (loss) per share | ||||||||
Basic | $ | (0.02 | ) | $ | 0.00 | |||
Diluted | $ | (0.02 | ) | $ | 0.00 |
Revenue
For the three months ended December 31, 2019, revenue totaled $22,769,000, an increase of $2,260,000, or 11%, from the same period in 2018. The increase in revenues is due to the acquisition of two businesses in the first quarter of fiscal year 2020.
Cost of revenue and gross margin
For the three months ended December 31, 2019 cost of revenue totaled $6,029,000 and gross margin was $16,740,000, versus
$6,240,000 and $14,279,000 respectively, during the same period in 2018. Gross margin percent increased from 70% to 74%. The gross margin improvement during the period was primarily due to the consolidation of vendor accounts to secure pricing and terms across all companies, and better ordering models throughout the company to only order when necessary or ordering certain inventory items at the time where a better cost is given by vendors.
Selling, general, and administrative expense
For the three months ended December 31, 2019, total selling, general and administrative expenses were $12,552,000, an increase of $2,009,000 from the same period in 2018. The increase was primarily due to approximately $1,500,000, excluding bad debt expense, from the acquisitions of two businesses, approximately $600,000 of higher bad debt expense from the increase in revenue, offset by approximately $300,000 from lower facility costs due to the adoption of IFRS 16, Leases (see Note 2 to the condensed consolidated interim financial statements).
Page | 5 |
|
MANAGEMENT’S DISCUSSION AND ANALYSIS December 31, 2019 (Tabular Dollar amounts expressed in thousands of Canadian Dollars) |
Depreciation expense
Depreciation expense increased by approximately $1,400,000 to $4,551,000 for the three months ended December 31, 2019. Approximately $400,000 was due to the adoption of IFRS 16, Leases (see Note 2 to the condensed consolidated interim financial statements). The remaining increase is due to increased depreciation on monitoring equipment from the increase in revenue.
Stock-based compensation
For the three months ended December 31, 2019, there is an expense for the stock-based compensation of $42,000 compared to $530,000 for the quarter ended December 31, 2018. The decline is due to options becoming fully vested during the year ended September 30, 2019
Interest expense
Interest expense increased approximately $300,000 for the quarter ended December 31, 2019 compared to 2018 as a result of the new debentures issued during 2019 having a higher face value and interest rate as compared to the debentures that were repaid. The Company paid off the unsecured debentures of $8.625 million bearing an interest rate of 7.5% in early May 2019. The Company issued new debentures on March 7, 2019 for $15,000,000, bearing an interest rate of 8.0%. The remainder of the Company's interest expense is due to lease liabilities bearing an interest rate between 0% to 11.5%.
Change in fair value of debentures and derivative
For the three months ended December 31, 2019, the loss on change in fair value of debentures and derivative of $735,000 was due to the increase in the trading price of the debenture. For the three months ended December 31, 2018 the change in debenture and derivative was the result of a decrease in fair value of outstanding warrants.
FINANCIAL POSITION
As at | As at | |||||||
December 31, 2019 | September 30, 2019 | |||||||
Cash | $ | 8,363 | $ | 12,855 | ||||
Accounts receivable | 11,778 | 12,390 | ||||||
Inventory | 6,312 | 4,738 | ||||||
Other current assets | 854 | 800 | ||||||
Total current assets | 27,307 | 30,783 | ||||||
Property and equipment | 25,180 | 19,496 | ||||||
Intangible and other assets | 8,096 | 4,886 | ||||||
Total assets | $ | 60,583 | $ | 55,165 | ||||
Total current liabilities, including current portion of lease liabilities | $ | 23,540 | $ | 18,969 | ||||
Long-term debt and other long-term liabilities | 20,148 | 17,047 | ||||||
Total liabilities | 43,688 | 36,016 | ||||||
Total shareholders’ equity | 16,895 | 19,149 | ||||||
Total liabilities and shareholders’ equity | $ | 60,583 | $ | 55,165 |
Liquidity
At December 31, 2019, the Company had cash on hand of $8,363,000. The Company’s approach in managing liquidity is to ensure, to the extent possible, that it will have enough liquidity to meet its liabilities when due by continuously monitoring actual and budgeted cash flows and monitoring financial market conditions for signs of weakness.
As of December 31, 2019, the Company faces no material liquidity risk and can meet all its current financial obligations as they become due and payable. The Company has $23,540,000 liabilities that are due within one year but has $27,307,000 of current assets to meet those obligations.
Capital management
The Company’s shareholders’ equity totaled $16,894,000 at December 31, 2019 and had debentures with a face amount of
$15,000,000. Additionally, the Company had lease liabilities with a principal amount of $15,870,000.
The Company plans to raise capital, as necessary, to meet its needs and take advantage of perceived opportunities and, therefore, does not have a numeric target for its capital structure. Funds are primarily secured through debt instruments, equity capital raised by way of private placements and convertible notes. There can be no assurance that the Company will be able to continue raising capital in this manner.
Page | 6 |
|
MANAGEMENT’S DISCUSSION AND ANALYSIS December 31, 2019 (Tabular Dollar amounts expressed in thousands of Canadian Dollars) |
Management reviews its capital management approach on an ongoing basis and believes that this approach, given the relative size of the Company, is reasonable.
Page | 7 |
|
MANAGEMENT’S DISCUSSION AND ANALYSIS December 31, 2019 (Tabular Dollar amounts expressed in thousands of Canadian Dollars) |
The Company invests all capital that is surplus to its immediate operational needs in short-term, liquid and highly rated financial instruments, such as cash and short-term guarantee deposits, held with major Canadian and US financial institutions.
The Company had the following equity instruments outstanding at December 31, 2019 and December 31, 2018:
As at
December 31, 2019 (000’s) |
As at
September 30, 2019 (000’s) |
|||||||
Common shares | 83,589 | 83,589 | ||||||
Underwriter Options | 367 | 367 | ||||||
Options – employees and consultants | 11,677 | 11,759 |
Financing
Historically and currently, the Company has financed its operations primarily from cash flow from operations, leases liabilities, debentures, equity financing and through the issuance of shares to acquire businesses. On March 7, 2019, the Company issued
$15,000,000 in 8.0% Convertible Unsecured Debentures due March 7, 2024, with interest payable semi-annually on June 30th and December 30th of each year. Each $1,000 debenture is convertible at the option of the holder into approximately 769.23 common shares. After three years, the Company can force conversion of the outstanding principal at conversion price of $1.30, if the daily volume weighted average price of the common shares exceeds $1.62/share for twenty consecutive trading days. The debenture agreement also allows for payment of cash in lieu of common shares upon exercise of conversion right by the holder, equivalent of the market price on the conversion date.
The above debenture contains multiple embedded derivatives including conversion right, forced conversion option and payment in lieu of common shares. The Company elected to value the convertible debentures in their entirety (including conversion right, forced conversion option and payment in lieu of common shares) to be subsequently measured at fair value through profit or loss (FVTPL). The fair value of the debenture as at December 31, 2019 was $14,696,000.
Commitments and Contingencies
Contingencies
From time to time, the Company is involved in various legal proceedings arising from the ordinary course of business, None of the matters in which the Company is currently involved, either individually, or in the aggregate, is expected to have a material adverse effect on the Company’s consolidated financial position, results of operations, or cash flows.
Quarterly Operating Results from continuing operations
Year ended September 30, 2019 | Quarter ended Sep. 30, 2019 | Quarter ended June 30, 2019 | Quarter ended March 31,2019 | Quarter ended Dec. 31, 2018 | ||||||||||||
Revenue | $ | 19,470 | $ | 20,164 | $ | 20,824 | $ | 20,509 | ||||||||
Net income (loss) from continuing operations | $ | 4,400 | $ | (12,564 | ) | $ | (591 | ) | $ | (386 | ) | |||||
Net income (loss) per share – continuing operations | $ | 0.05 | $ | (0.15 | ) | $ | (0.01 | ) | $ | (0.00 | ) | |||||
Total assets | $ | 55,165 | $ | 51,583 | $ | 70,049 | $ | 55,947 |
Results of operations for the healthcare services market in which the Company operates show little seasonality from quarter to quarter.
Related party transactions
The Company has entered into six market rate leases for office, warehouse, and retail space with a rental Company affiliated with the Company’s Chief Executive Officer, the majority of which were entered into in 2015. The leases have a combined area of 74,520 square feet. Lease payments under these leases are approximately $68,000 per month, plus taxes, utilities and maintenance.
Payments of approximately $55,000 and $52,000 were made to members of the Board of Directors for three months ended December 31, 2019 and 2018, respectively.
Key management personnel also participate in the Company’s share option program. The Company paid or accrued compensation to key management personnel the following:
Page | 8 |
|
MANAGEMENT’S DISCUSSION AND ANALYSIS December 31, 2019 (Tabular Dollar amounts expressed in thousands of Canadian Dollars) |
Three months ended December 31, 2019 | Three months ended December 31, 2018 | |||||||
Salaries and Benefits | $ | 247 | $ | 255 | ||||
Stock-based compensation | - | 333 | ||||||
Total | $ | 247 | $ | 588 |
Off balance sheet arrangements
The Company has no material undisclosed off-balance sheet arrangements that have or are reasonably likely to have, a current or future effect on its results of operations or financial condition.
ACCOUNTING AND DISCLOSURE MATTERS
Financial reporting controls
The Company is not required to certify the design and evaluation of its disclosure controls and procedures and internal controls over financial reporting and has not completed such an evaluation.
There were no substantive changes in the Company’s disclosure controls and procedures and internal controls over financial reporting during the period ended December 31, 2019 that have materially affected, or are reasonably likely to materially affect, the Company’ s disclosure controls and procedures and internal controls over financial reporting.
Critical accounting estimates
The preparation of financial statements in conformity with IFRS requires management to make estimates and assumptions that affect the reported amounts of assets, liabilities, revenues and expenses and the disclosure of contingent assets and liabilities in the consolidated financial statements. We constantly evaluate these estimates and assumptions.
We base our estimates and assumptions on experience and other factors that are deemed reasonable under the circumstances. This involves varying degrees of judgment and uncertainty, thus the amounts currently reported in the consolidated financial statements could prove to be inaccurate in the future.
We consider the estimates and assumptions described in this section to be an important part in understanding the consolidated financial statements. These estimates and assumptions are subject to change, as they rely heavily on management’ s judgment and are based on factors that are inherently uncertain.
Revenue recognition
Revenue consists of net patient service revenue. Net patient service revenue is recognized at the time services are provided net of contractual adjustments based on an evaluation of expected collections resulting from the analysis of current and past due accounts, past collection experience in relation to amounts billed and other relevant information. Contractual adjustments result from the differences between the rates charged for services and reimbursements by government-sponsored healthcare programs and insurance companies for such services.
Accounts receivable
Accounts receivable are recorded at the time revenue is recognized and are presented on the balance sheet net of an allowance for doubtful accounts. It is possible that our estimates of the allowance for doubtful accounts could change, which could have a material impact on our operations and cash flows.
The Company will write-off receivables when the likelihood for collection is remote, the receivables have been fully reserved, and when the Company believes collection efforts have been fully exhausted and it does not intend to devote additional resources in attempting to collect.
Share Consolidation and New Stock Symbol
On December 31, 2018, the Company consolidated its common shares on the basis of one (1) new post-consolidation common share for every five (5) pre-consolidation common shares. The Consolidation affected shareholders uniformly, including holders of outstanding incentive stock options and warrants. Unless stated otherwise, all share and per share amounts have been restated retrospectively to reflect this share consolidation. The company began trading under the TSX Venture Exchange under the stock ticker symbol “PTQ” as of December 31, 2018.
Page | 9 |
|
MANAGEMENT’S DISCUSSION AND ANALYSIS December 31, 2019 (Tabular Dollar amounts expressed in thousands of Canadian Dollars) |
Stock-based compensation
The Company accounts for stock-based compensation, including stock options and warrants, using the fair value method as prescribed by IFRS 2. Under this method, the fair value of stock options and warrants at the date of grant is amortized over the vesting period and the offsetting credit is recorded as an increase in contributed surplus. The Company accounts for forfeitures as they happen. For the three months ended December 31, 2019 and 2018, the Company recorded stock-based compensation expense of $42,000 and $530,000, respectively.
The fair value of the vested stock options has been charged to the statement of income (loss) and comprehensive income (loss) and credited to contributed surplus over the proper vesting period. Fair value for the options granted periods ended December 31, 2018 and 2017, used the Black-Scholes option pricing model calculated using the following assumptions:
For the three months ended | For the three months ended | |||||||
December 31, 2019 | December 31, 2018 | |||||||
Share price | N/A | $ | 0.63 | |||||
Risk-free interest rate | N/A | 2.24 | % | |||||
Expected volatility | N/A | 118.17 | % | |||||
Expected life of option | N/A | 10 years | ||||||
Expected dividend yield | N/A | Nil |
Income taxes
The Company is subject to income taxes in numerous jurisdictions. Significant judgment is required in determining the provision for income taxes and the Company’s income tax provisions reflect management’s interpretation of country-specific tax law. There are many transactions and calculations for which the ultimate tax determination is uncertain during the ordinary course of business and may remain uncertain for several years after their occurrence. The Company recognizes assets and liabilities for taxation when it is probable that the relevant taxation authority will require the Company to receive or pay taxes.
Where the outcome of the determination of tax assets and liabilities is different from the amounts that were initially recorded, such differences will impact the current and deferred income taxes provision in the period in which such determination is made. Changes in tax law or changes in the way tax law is interpreted may also impact the Company’s effective tax rate as well as its business and operations.
Deferred income tax assets and liabilities are recognized for the future income tax consequences attributable to temporary differences between the financial statement carrying value of assets and liabilities and their respective income tax bases. Deferred income tax assets or liabilities are measured using enacted or substantively enacted income tax rates expected to apply to taxable income in the years in which those temporary differences are expected to be recovered or settled.
The calculation of current and deferred income taxes requires management to make estimates and assumptions and to exercise a certain amount of judgment concerning the carrying value of assets and liabilities. The current and deferred income tax assets and liabilities are also impacted by expectations about future operating results and the timing of reversal of temporary differences as well as possible audits of tax filings by regulatory agencies. Changes or differences in these estimates or assumptions may result in changes to the current and deferred tax assets and liabilities on the consolidated statements of financial position and a charge to or recovery of income tax expense.
Acquisition accounting
Accounting for business combinations requires the allocation of the Company’s purchase price to the various assets and liabilities of the acquired business at their respective fair values. The Company uses all available information to make these fair value determinations. In some instances, assumptions with respect to the timing and amount of future revenues and expenses associated with an asset or group of assets may be used to determine fair value. Actual timing and amount of net cash flows from revenues and expenses related to that asset over time may differ materially from those initial estimates, and if the timing is delayed significantly or if the net cash flows decline significantly, the asset could become impaired.
Discontinued operations
An operation is qualified as discontinued when it represents a separate major line of business and has been sold, or when the criteria for classification as an asset held for distribution have been met.
Discontinued operations are presented on the statement of income (loss) and comprehensive income (loss) for the periods reported, comprising the earnings after tax of discontinued operations until divestiture and the gain or loss after tax on sale or fair value measurement, less costs to sell.
Page | 10 |
|
MANAGEMENT’S DISCUSSION AND ANALYSIS December 31, 2019 (Tabular Dollar amounts expressed in thousands of Canadian Dollars) |
Significant accounting judgments
The following are the critical judgments, apart from those involving estimations, that have been made in the process of applying the Company's accounting policies and that have the most significant effect on the amounts recognized in the consolidated financial statements.
Functional currency
Management has exercised judgment in selecting the functional currency of each of the entities that it consolidates based on the primary economic environment in which the entity operates and in reference to the various indicators including the currency that primarily influences or determines the selling prices of goods and services and the cost of production, including labor, material and other costs and the currency whose competitive forces and regulations mainly determine selling prices. The consolidated financial statements of the Company are presented in Canadian dollars, which is the parent company’s presentation currency but which differs from its functional currency, the US dollar, which was determined using managements assumption that the primary economic environment from which it will derive its revenues and the expenses incurred to generate those revenues is the US.
Segment reporting
Management has assessed the information that is provided to the chief operating decision maker and how the business is monitored and has exercised judgment in determining that there is only one operating segment.
Asset impairment and cash generating units
For purposes of the asset impairment testing, the Company identifies cash generating units as the smallest identifiable groups of assets that generate independent cash inflows. Impairment testing is performed on these groups of assets on an annual basis or when events or circumstances indicate that the cash generating unit may become impaired considering the assessed and projected recoverable values of the cash generating unit. The Company has elected to perform the annual impairment testing in the fourth quarters.
Valuation of derivative instruments
Management has exercised judgment in the determination of the fair value of the derivative instruments. Estimating fair value for the derivatives requires determining the most appropriate valuation model, which is dependent on the terms and conditions of the instrument. This estimate also requires the judgment in the determination of the most appropriate inputs to the valuation model including the expected life of the option or warrant, volatility and dividend yield and making assumptions about them.
Recognition of leases
Management has exercised judgment in the determination of whether a contract to rent equipment represents a financing lease. Using historical returns and other operational data management has determined that in cases where the Company is the lessor, no rental agreements represent financing leases.
Goodwill impairment
Management has evaluated the recoverable amount of cash generating units and applied judgment in the discount rate and other underlying assumptions used in impairment analysis of goodwill.
Business Acquisitions
On October 31, 2018, the Company, through one of its indirect wholly owned subsidiaries, entered into a purchase agreement to acquire 100% of the shares of Central Oxygen Inc., an Indiana company. Total consideration was $395,000 in cash and stock.
On October 31, 2018, the Company, through one of its indirect wholly owned subsidiaries, entered into a purchase agreement to acquire 100% of the shares of Riverside Medical Inc., a Tennessee company. Total consideration was $131,000 in cash.
Effective October 1, 2019, the Company, through one of its indirect wholly owned subsidiaries, entered into a purchase agreement to acquire 100% of the shares of Cooley Medical Equipment, Inc., a Kentucky company, Total consideration was
$3,089,000 in cash.
Effective December 1, 2019, the Company, through one of its indirect wholly owned subsidiaries, entered into a purchase agreement to acquire 100% of the shares of Acadia Medical Supply, Inc., a Maine company. Total consideration was $1,071,000 in cash.
Page | 11 |
|
MANAGEMENT’S DISCUSSION AND ANALYSIS December 31, 2019 (Tabular Dollar amounts expressed in thousands of Canadian Dollars) |
FINANCIAL INSTRUMENTS AND RISK MANAGEMENT
Financial instrument risk exposure
The Company’ s activities expose it to a variety of financial risks: market risk (including price risk, currency risk and interest rate risk), credit risk and liquidity risk. These risks arise from the normal course of operations and all transactions are undertaken to support the Company’ s ability to continue as a going concern. Risk management is carried out by management under policies approved by the Board of Directors. Management identifies and evaluates the financial risks in co-operation with the Company’s operating units. The Company’s overall risk management program seeks to minimize potential adverse effects on the Company’s financial performance.
Credit risk
Credit risk is the risk that one party to a financial instrument will fail to discharge an obligation and cause the other party to incur a financial loss. Financial instruments that potentially subject the Company to credit risk are primarily cash and accounts receivable. Each subsidiary places its cash with one major financial institution. At times, the cash in the financial institution is temporarily in excess of the amount insured by the Federal Deposit Insurance Corporation. Substantially all accounts receivable are due under fee-for-service contracts from third party payors, such as insurance companies and government-sponsored healthcare programs, directly from patients or for rebates due from manufacturers. Receivables generally are collected within industry norms for third-party payors and from manufacturers. The Company continuously monitors collections from its clients and maintains an allowance for bad debts based upon any specific payor collection issues that are identified and historical experience.
The Company recorded bad debt expense of $1,984,000 and $1,322,000 for three months ended December 31, 2019 and 2018, respectively. As of December 31, 2019, no one customer represented more than 10% of outstanding accounts receivable.
Currency risk
Currency risk is the risk that the Company will be subject to foreign currency fluctuations in satisfying obligations related to its foreign activities.
The Company realizes virtually all of its sales and makes a significant amount of its purchases in US dollars. Consequently, assets and liabilities are exposed to foreign exchange fluctuations.
The Company monitors and forecasts the values of net foreign currency cash flow and statement of financial position exposures and from time to time could authorize the use of derivative financial instruments such as forward foreign exchange contracts to economically hedge a portion of foreign currency fluctuations.
Based on the above net exposure at December 31, 2019, a 10% depreciation or appreciation of the US dollar against the Canadian dollar would not result in a significant effect in net loss. The Company has not employed any currency hedging programs during the periods ended December 31, 2019 or 2018.
Liquidity risk
Liquidity risk is the risk that the Company will not be able to meet its financial obligations as they become due. The Company’s approach in managing liquidity is to ensure, to the extent possible, that it will have sufficient liquidity to meet its liabilities when due, under both normal conditions, by continuously monitoring actual and budgeted cash flows.
As of December 31, 2019, the Company faces no material liquidity risk and can meet all its current financial obligations as they become due and payable. The Company has $23,540,000 of liabilities that are due within one year. The Company has
$27,002,000 of current assets to meet those obligations.
Interest rate risk
Interest rate risk is the risk that the future cash flows of a financial instrument will fluctuate because of changes in market interest rates. Interest rate risk is limited to potential decreases on the interest rate offered on cash and cash equivalents held with Chartered Canadian and registered US financial institutions. The Company considers this risk to be immaterial. The interest on the convertible notes is not subject to cash flow interest rate risk as these instruments bear interest at fixed rates.
Page | 12 |
|
MANAGEMENT’S DISCUSSION AND ANALYSIS December 31, 2019 (Tabular Dollar amounts expressed in thousands of Canadian Dollars) |
RISK FACTORS
While it is impossible to identify all such risk factors, factors that could cause actual results to differ materially from those estimated by us include:
Market Price of the Company Shares
The Company Shares are listed and posted for trading on the TSX Venture Exchange. Securities of small-cap and healthcare companies have experienced substantial volatility in the past, often based on factors unrelated to the financial performance or prospects of the companies involved. These factors include macroeconomic developments in North America and globally, and market perceptions of the attractiveness of particular industries. The price of the Company Shares is also likely to be significantly affected by short-term changes in cost of goods, or in financial condition or results of operations. Other factors unrelated to the performance of the Company that may have an effect on the price of the Company Shares include the following: the extent of analytical coverage available to investors concerning the business of the Company may be limited if investment banks with research capabilities do not follow the Company securities; lessening in trading volume and general market interest in the Company’s securities may affect an investor’s ability to trade significant numbers of the Company Shares; the size of the Company’s public float may limit the ability of some institutions to invest in the Company’s securities; and a substantial decline in the price of the Company Shares that persists for a significant period of time could cause the Company’s securities, if listed on an exchange, to be delisted from such exchange, further reducing market liquidity.
As a result of any of these factors, the market price of the Company Shares at any given point in time may not accurately reflect the long-term value of the Company. Securities class-action litigation often has been brought against companies following periods of volatility in the market price of their securities. The Company may in the future be the target of similar litigation. Securities litigation could result in substantial costs and damages and divert management’s attention and resources.
Dilution
The Company will require additional funds in respect of the further development of the company through acquisition. If the Company raises funds by issuing additional equity securities, such financing will dilute the equity interests of its shareholders.
Future Sales of Shares by Existing Shareholders
Sales of the Company Shares in the public markets, or the potential for such sales, could decrease the trading price of the Company Shares and could impair The Company’s ability to raise capital through future sales of the Company Shares. The Company may from time to time have previously issued securities at an effective price per share which will be lower than the market price of the Company Shares. Accordingly, certain shareholders of The Company may have an investment profit in the Company Shares that they may seek to liquidate.
Limited History of Operations
The Company has a limited history of operations. There can be no assurance that the business of the Company and/or its subsidiaries will be successful and generate, or maintain, any profit.
Novel Business Model
Home monitoring of patients on anticoagulants is a relatively new business, making it difficult to predict market acceptance, development, expansion and direction. The home monitoring services to be provided by the Company represent a relatively new development in the U.S. healthcare industry. Accordingly, adoption by patients and physicians can require education, which can result in a lengthy sales cycle. The market may take time to develop. Physicians and/or patients may be slow to adopt new methods. The development of the Company’s home monitoring business will depend on many factors. These factors include: The Company’s ability to differentiate its services from those of its competitors; the extent and timing of the acceptance of the Company’s services as a replacement for, or supplement to, traditional methods of monitoring patients; the effectiveness of the Company’s sales and marketing and engagement efforts with customers and their health plan participants; the Company’s ability to provide quality customer service, as perceived by patients and physicians.
Because the monitoring business is evolving, the Company may not be able to anticipate and adapt to the developing market. Moreover, management cannot predict with certainty the future growth rate or the ultimate size of the market.
Reimbursement Rates May Decline
Reimbursement for services to be provided by the Company will come primarily from Medicare and private health insurance companies. The reimbursement rates offered are outside the control of the Company. Reimbursement rates in this area, and much of the U.S. health care market in general, have been subject to continual reductions as health insurers and governmental entities attempt to control health care costs. The extent and timing of any reduction in reimbursement rates cannot be predicted by the Company.
Reductions in reimbursement rates can have a material impact on the profitability of the Company’s operations. A reduction in reimbursement may be unrelated to any concurrent decline in the cost of operations, thereby resulting in reduced profitability. The Company’s costs of operations could increase, but the cost increases may not be passed on to customers because reimbursement rates are set without regard to the cost of service.
Dependence Upon Relationships With Key Suppliers
There are few manufacturers of equipment which can be used for home monitoring of patients on anticoagulants. There is the possibility that a new meter will encounter difficulties or “bugs” when first sent to market, and that initial technical support costs may be higher than for more well-established meters. Even if the Company switches to other competing meters, they may also encounter technical difficulties or regulatory issues. The emerging nature of the market presents risks that suppliers may not be able to provide equipment to satisfy demand. Demand may outstrip supply, leading to equipment shortages. Conversely, incorrect demand forecasting could lead to excess inventory. If the Company fails to achieve certain volume of sales, prices of meters may increase. The industry is subject to a high level of regulatory scrutiny, and government or manufacturer recalls could adversely affect the Company’s ability to provide monitoring services and achieve revenue targets.
Page | 13 |
|
MANAGEMENT’S DISCUSSION AND ANALYSIS December 31, 2019 (Tabular Dollar amounts expressed in thousands of Canadian Dollars) |
Inadequate supply could impair the Company’s ability to attract new business and could create upward pricing pressure on equipment and supplies, adversely affecting margins for The Company. Additionally, the market for financing home testing meters and other supplies needed by the Company is limited. Several equipment manufacturers are pursuing a strategy of vertical integration, and should the Company ever need to order equipment from those manufacturers, such equipment may not be available on favorable terms.
Reliance Upon Few Payers
The Company will earn revenues by seeking reimbursement from Medicare and private health insurance companies, with the Medicare program of the US government being the primary entity making payments. If the Medicare program were to slow payments of receivables for any reason, the Company would be adversely impacted. In addition, both governmental and private health insurance companies may seek ways to avoid or delay reimbursement, which could adversely affect cash flow and revenues for the Company.
Government Regulation
Some operations of the Company will require certain licenses and permits from the authorities in the United States. The ability of the Company and its subsidiaries to obtain, sustain or renew any such licenses and permits on acceptable terms is subject to changes in regulations and policies and to the discretion of the applicable authorities or other governmental agencies. The ability of the Company to collect certain revenues in the future will depend on the Company receiving approval of an independent diagnostic testing facility and entering into an agreement with Medicare. There is no guarantee that the Company will meet these conditions. The Company will be subject to regulation from United States federal and state authorities. Regulatory action could disrupt its ability to provide services. Such regulatory action could come in the form of actions against manufacturers, unrelated to the Company’s conduct, or actions based upon the Company’s operation. Regulatory action could prevent or delay reimbursement for certain services.
There could also be legislative action that could adversely affect the Company’s business model, including, without limitation: a decision by the United States government to become the exclusive provider of health care services at some time in the future; changes in United States federal or state laws, rules, and regulations, including those governing the corporate practice of medicine, and fee splitting; and changes in the United States Anti-Kickback Statute and Stark Law and/or similar state laws, rules, and regulations. Conversely, budgetary problems in the United States could lead to reduced funding, substantial modification or elimination of Medicare programs, which would end reimbursement for many patients. There can be no assurance that new rules and regulations will not be enacted or that existing rules and regulations will not be applied in a manner which could limit or curtail the business of the Company. Amendments to current laws and regulations could have a substantial adverse impact on the Company.
CMS (Centers for Medicare & Medicaid Services) policies of health insurance for Medicare in the United States may affect the amount of revenue the Company receives. The Company will continue to be subject to risk that reimbursement rates for its services from both federal and private payers will decline over time. Reimbursement from federal programs is subject to constant regulatory review and increasing audits by federal authorities, the effect of which may be to increase costs of service and delay or affect reimbursement, which could negatively impact cash flow and/or revenue. Audits may be costly and time consuming, and could delay cash flow, even if the Company acted properly in all respects. The policies of health insurance carriers in the United States may affect the amount of revenue the Company receives.
Highly Competitive Market
The Company will participate in a highly competitive market, which may become more competitive as new players enter. Certain competitors will be subsidiaries or divisions of larger, much better capitalized companies. Certain competitors will have vertically integrated manufacturing and services sectors of the market. The Company may have less capital and may encounter greater operational challenges in serving the market. Better capitalized competitors may also be expected to borrow money or raise debt to purchase equipment more easily than the Company.
Low profit market segments
Where the Company provides services to a patient who does not use a meter often or for an extended period of time, profitability may be unlikely in respect of that patient. Also, certain patients may have a personal preference to travel to a lab for testing rather than self-testing. In these cases, the Company may not have a meter with the patient long enough to recoup costs. Where the Company owns the meter, the failure of the patient to return the meter to the Company may impact profitability. Legal costs of bringing an action to obtain return of a meter may exceed the value of the machine, leading to losses with certain patient populations even under favorable reimbursement environments.
Foreign Subsidiaries
The Company plans to conduct all its operations through respective United States subsidiaries. Therefore, to the extent of these holdings, the Company (directly and indirectly) will be dependent on the cash flows of these subsidiaries to meet its obligations. The ability of such subsidiaries to make payments to their parent companies may be constrained by the following factors: the level of taxation, particularly corporate profits and withholding taxes, in the jurisdiction in which each subsidiary operates; and the introduction of exchange controls or repatriation restrictions or the availability of hard currency to be repatriated.
Page | 14 |
|
MANAGEMENT’S DISCUSSION AND ANALYSIS December 31, 2019 (Tabular Dollar amounts expressed in thousands of Canadian Dollars) |
Attraction and Retention of Key Personnel Including Directors
The Company will have a small management team and the loss of a key individual or inability to attract suitably qualified staff could have a material adverse impact on the business of The Company. The Company may also encounter difficulties in obtaining and maintaining suitably qualified staff. The success of The Company depends on the ability of management to interpret market data correctly and to interpret and respond to economic, market and other conditions to locate and adopt appropriate opportunities. No assurance can be given that individuals with the required skills will continue employment with The Company or that replacement personnel with comparable skills can be found. The Company will be dependent on the services of key executives, including the directors of The Company and a small number of highly skilled and experienced executives and personnel. Due to the relatively small size of The Company, the loss of these persons or The Company’s inability to attract and retain additional highly skilled employees may adversely affect its business and future operations.
Dividends
The Company currently intends to retain future earnings to finance the operation, development and expansion of its business. The Company does not anticipate paying cash dividends on the Company Shares in the foreseeable future. Payment of future cash dividends, if any, will be at the discretion of the Company Board and will depend on the Company’s financial condition, results of operations, contractual restrictions, capital requirements, business prospects and other factors that the Company Board may consider relevant. Accordingly, investors will only see a return on their investment if the value of the Company Shares appreciates.
Discretion in the Use of Available Funds
Management will have broad discretion concerning the use of the available funds of the Company as well as the timing of their expenditures. As a result, shareholders and investors will be relying on the judgment of management of the Company on completion of the Arrangement for the application of the available funds of the Company (see “Available Funds and Principal Purposes” above). Management may use the available funds in ways that an investor may not consider desirable. The results and the effectiveness of the application of the available funds are uncertain. If the available funds are not applied effectively, the Company’s results of operations may suffer.
Potential Conflicts of Interest
Some of the proposed directors and officers of the Company are engaged and will continue to be engaged as directors and officers of other companies in the search for additional business opportunities on behalf of such other corporations, and situations may arise where these directors and officers will be in direct competition with the Company. Some of the proposed directors and officers of the Company are or may become directors or officers of other companies engaged in other business ventures.
Conflicts of interest, if any, which arise may be subject to and be governed by procedures prescribed by the Business Corporations Act (British Columbia) which require a director or officer of a corporation who is a party to or is a director or an officer of or has a material interest in any person who is a party to a material contract or proposed material contract with The Company to disclose his interest and to refrain from voting on any matter in respect of such contract unless otherwise permitted under the Business Corporations Act (British Columbia). Any decision made by any of such directors and officers involving the Company should be made in accordance with their duties and obligations to deal fairly and in good faith with a view to the best interests of the Company and its shareholders.
Insurance and Uninsured Risks
The Company’s business will continue to be subject to several risks and hazards generally, including general liability. Such occurrences could result in damage to property, inventory, facilities, personal injury or death, damage to the properties of the Company, or the properties of others, monetary losses and possible legal liability. The Company may be subject to product liability and medical malpractice claims, which may adversely affect its operations. The Company’s industry is highly regulated, and the Company may be subject to regulatory scrutiny for violations of regulations and laws. The Company could be adversely affected by the time and cost involved with regulatory investigations even if it has operated in compliance with all laws. Investigations could also adversely affect the timely payment of receivables.
Although the Company will maintain insurance to protect against certain risks in such amounts as it considers to be reasonable, its insurance will not cover all the potential risks associated with its operations. The Company may also be unable to maintain insurance to cover these risks at economically feasible premiums. Insurance coverage may not continue to be available or may not be adequate to cover any resulting liability. The Company might also become subject to liability which may not be insured against or which the Company may elect not to insure against because of premium costs or other reasons. Losses from these events may cause the Company to incur significant costs that could have a material adverse effect upon its financial performance and results of operations.
Additional Capital
The development and the business (including acquisitions) of the Company may require additional financing, which may involve high transaction costs, dilution to shareholders, high interest rates or unfavorable terms and conditions. Failure to obtain sufficient financing may result in the delay or indefinite postponement of its business plans. As the Company will likely be unable to obtain traditional debt financing until it has a profitable and longer operating history, the initial primary source of funding available to the Company will consist of equity financing. There can be no assurance that additional capital or other types of financing will be available if needed or that, if available, the terms of such financing will be favorable to the Company.
Page | 15 |
|
MANAGEMENT’S DISCUSSION AND ANALYSIS December 31, 2019 (Tabular Dollar amounts expressed in thousands of Canadian Dollars) |
Loss of Foreign Private Issuer Status
The Company may lose its foreign private issuer status in the future, which could result in significant additional costs and expenses. As a foreign private issuer, as defined in Rule 3b-4 under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), the Company is currently exempt from certain of the provisions of the U.S. federal securities laws. For example, an issuer with total assets in excess of US$10 million and whose outstanding equity securities are held by 2,000 or more persons, or 500 or more persons who are not “accredited investors”, must register such securities as a class under the Exchange Act. However, as a foreign private issuer subject to Canadian continuous disclosure requirements, the Company may claim the exemption from registration under the Exchange Act provided by Rule threeg3-2(b) thereunder, even if these thresholds are exceeded. To be considered a foreign private issuer, The Company must satisfy a United States shareholder test (not more than 50% of the voting securities of a company must be held by residents of the United States) if any of the following disqualifying conditions apply: (i) the majority of the Company’s executive officers or directors are United States citizens or residents; (ii) more than 50 percent of The Company’s assets are located in the United States; or (iii) The Company’s business is administered principally in the United States. Based on information available as at the date hereof, approximately 26.7% of the Company’s outstanding voting securities are anticipated to be directly or indirectly held of record by residents of the United States. If the Company loses its status as a foreign private issuer, these regulations could apply and it could also be required to commence reporting on forms required of U.S. domestic companies, such as Forms 10-K, 10-Q and 8-K. It could also become subject to U.S. proxy rules, and certain holders of its equity securities could become subject to the insider reporting and “short swing” profit rules under Section 16 of the Exchange Act. In addition, any securities issued by the Company if it loses foreign private issuer status would become subject to certain rules and restrictions under the Securities Act of 1933, as amended, even if they are issued or resold outside the United States. Compliance with the additional disclosure, compliance and timing requirements under these securities laws would likely result in increased expenses and would require the Company’s management to devote substantial time and resources to comply with new regulatory requirements.
United States Operations and Exchange Rate Fluctuations:
All the Company’s revenue generating operations will occur in the United States. The Company will be subject to a number of risks associated with its operations that may increase liability and costs and require significant management attention. These risks include:
· | compliance with laws of the United States that will apply to the Company’s United States operations, including lawful access, privacy laws and anti-corruption laws; |
· | instability in economic or political conditions, including inflation, recession and political uncertainty; |
· | potential adverse tax consequences; and |
· | litigation in United States courts. |
In addition, the Company will be exposed to foreign exchange risk as a result of substantially all its revenue generating operations taking place in the United States and thus, revenues and expenses being earned and paid in United States dollars while the Company reports its financial statements in Canadian dollars. If the Canadian dollar appreciates relative to the United States dollar, the Company’s Canadian dollar expenses and revenues will decrease when translated from United States dollars for financial reporting purposes. Conversely, if the Canadian dollar depreciates relative to the United States dollar, the Company’s Canadian dollar expenses and revenues will increase when translated from United States dollars for financial reporting purposes. In addition, exchange rate fluctuations may affect the costs that The Company incurs in its operations. The appreciation of non- United States dollar currencies against the United States dollar can increase the cost of operations in United States dollar terms. Foreign exchange rate fluctuations may materially affect the Company’s financial condition and results of operations in future periods.
The Company will continue to translate the assets and liabilities of its United States dollar functional currency subsidiaries into Canadian dollars using exchange rates in effect at the end of each period. Revenue and expenses for these subsidiaries are translated using average exchange rates that approximate those in effect during the period. The Company will continue to maintain cash balances in both United States and Canadian dollars, but management anticipates that it will not purchase any securities or financial instruments to speculate on or hedge against a rise or fall in the value of the United States dollar.
Global Economy
Recent market events and conditions, including disruptions in the international credit markets and other financial systems and the deterioration of global economic conditions, could impede the Company’s access to capital or increase the cost of capital. From 2007 to 2009, the United States credit markets began to experience serious disruption due to deterioration in residential property values, defaults and delinquencies in the residential mortgage market and a decline in the credit quality of mortgage- backed securities. These problems led to a slow-down in residential housing market transactions, declining housing prices, delinquencies in non-mortgage consumer credit and a general decline in consumer confidence. These conditions caused a loss of confidence in the broader United States and global credit and financial markets and resulted in the collapse of, and government intervention in, major banks, financial institutions and insurers and created a climate of greater volatility, less liquidity, widening of credit spreads, a lack of price transparency, increased credit losses and tighter credit conditions which continued throughout 2012 with continued uncertainty in the European marketplace and continued uncertainty surrounding the “fiscal cliff” , the United States government deficit and the United States government spending cuts. Notwithstanding various actions by the United States and foreign governments, concerns about the general condition of the capital markets, financial instruments, banks, investment banks, insurers and other financial institutions caused the broader credit markets to deteriorate and stock markets to fluctuate substantially.
These disruptions in the current credit and financial markets have had a significant material adverse impact on several financial institutions and have limited access to capital and credit for many companies, including junior mining companies. These disruptions could, among other things, make it more difficult for the Company to obtain, or increase its cost of obtaining, capital and financing for its operations. Access to additional capital may not be available to the Company on terms acceptable to it, or at all.
Page | 16 |
Exhibit 99.22
Protech Home Medical Corp.
Condensed Consolidated Interim Financial Statements
2020 First Quarter
For the Three Months Ended
December 31, 2019 and 2018
(UNAUDITED)
(Expressed in Canadian dollars)
TABLE OF CONTENTS | ||
Condensed Consolidated Statements of Financial Position | Page 3 | |
Condensed Consolidated Statements of Loss and Comprehensive Loss | Page 4 | |
Condensed Consolidated Statements of Changes in Shareholders’ Equity | Page 5 | |
Condensed Consolidated Statements of Cash Flows | Page 6 | |
Notes to the Condensed Consolidated Financial Statements | Pages 7-15 |
NOTICE OF NO AUDITOR REVIEW OF INTERIM FINANCIAL STATEMENTS
Under National Instrument 51-102, Part 4, subsection 4.3 (3) (a), if an auditor has not performed a review of these condensed consolidated interim financial statements, they must be accompanied by a notice indicating that the financial statements have not been reviewed by an auditor.
The accompanying unaudited condensed consolidated interim financial statements of the Protech Home Medical Corp (the “Company”) have been prepared by and are the responsibility of the Company’s management and approved by the Board of Directors of the Company.
The Company’s independent auditor has not performed a review of these unaudited condensed consolidated interim financial statements in accordance with standards established by the Canadian Institute of Chartered Professional Accountants for a review of interim financial statements by an entity’s auditor.
PROTECH HOME MEDICAL CORP.
CONDENSED CONSOLIDATED INTERIM STATEMENTS OF FINANCIAL POSITION
(UNAUDITED)
(Expressed in thousands of Canadian Dollars, except per share amounts)
Notes |
As at
December 31, 2019 |
As at
September 30, 2019 |
||||||||||
ASSETS | ||||||||||||
Current Assets | ||||||||||||
Cash | $ | 8,363 | $ | 12,855 | ||||||||
Accounts receivable, net | 11,778 | 12,390 | ||||||||||
Inventory, net | 4 | 6,312 | 4,738 | |||||||||
Prepaid expenses and other current assets | 854 | 800 | ||||||||||
Total current assets | 27,307 | 30,783 | ||||||||||
Long-term assets | ||||||||||||
Property and equipment and right of use assets, net | 5 | 25,180 | 19,496 | |||||||||
Goodwill | 6 | 5,377 | 1,881 | |||||||||
Intangible assets, net | 6 | 2,619 | 2,911 | |||||||||
Deposits | 100 | 94 | ||||||||||
Total long-term assets | 33,276 | 24,382 | ||||||||||
TOTAL ASSETS | $ | 60,583 | $ | 55,165 | ||||||||
LIABILITIES | ||||||||||||
Current Liabilities | ||||||||||||
Trade payables | $ | 8,945 | $ | 8,122 | ||||||||
Accrued liabilities | 3,936 | 2,319 | ||||||||||
Current portion of lease liabilities | 7 | 10,659 | 8,528 | |||||||||
Total current liabilities | 23,540 | 18,969 | ||||||||||
Long-Term Liabilities | ||||||||||||
Debentures | 7 | 14,696 | 13,966 | |||||||||
Lease liabilities | 7 | 5,211 | 3,081 | |||||||||
Other long-term liabilities | 241 | - | ||||||||||
Total long-term liabilities | 20,148 | 17,047 | ||||||||||
TOTAL LIABILITIES | 43,688 | 36,016 | ||||||||||
SHAREHOLDERS' EQUITY | ||||||||||||
Share capital | 198,196 | 198,196 | ||||||||||
Contributed surplus | 21,432 | 21,390 | ||||||||||
Accumulated deficit | (215,198 | ) | (213,440 | ) | ||||||||
Accumulated other comprehensive income | 12,465 | 13,003 | ||||||||||
TOTAL SHAREHOLDERS' EQUITY | 16,895 | 19,149 | ||||||||||
TOTAL LIABILITIES AND SHAREHOLDERS' EQUITY | $ | 60,583 | $ | 55,165 |
APPROVED ON BEHALF OF THE BOARD: | ||
signed “Donald Ewing” | signed “Mark Greenberg” |
The accompanying notes are an integral part of these condensed consolidated interim financial statements
Page | 3
PROTECH HOME MEDICAL CORP.
CONDENSED CONSOLIDATED INTERIM STATEMENTS OF INCOME AND
COMPREHENSIVE INCOME
(UNAUDITED)
(Expressed in thousands of Canadian Dollars, except per share amounts)
Notes |
Three Months ended
December 31, 2019 |
Three Months ended
December 31, 2018 |
||||||||||
Revenue | ||||||||||||
Sales of medical equipment and supplies | $ | 9,862 | $ | 9,314 | ||||||||
Rentals of medical equipment | 12,907 | 11,195 | ||||||||||
Total revenue | 22,769 | 20,509 | ||||||||||
Cost of revenue | 6,029 | 6,230 | ||||||||||
Gross margin | 16,740 | 14,279 | ||||||||||
Selling, general and administrative | 10 | 12,552 | 10,543 | |||||||||
Depreciation | 5 | 4,551 | 3,167 | |||||||||
Amortization of intangible assets | 6 | 239 | 151 | |||||||||
Stock-based compensation | 8 | 42 | 530 | |||||||||
Gain on sale of property and equipment | (79 | ) | (2 | ) | ||||||||
Other expense (income) | (146 | ) | 6 | |||||||||
Operating Income from continuing operations | (419 | ) | (116 | ) | ||||||||
Financing expenses | ||||||||||||
Interest expense, net | 604 | 396 | ||||||||||
Change in fair value of debentures and derivative | 7 | 735 | (68 | ) | ||||||||
Income before taxes from continuing operations | (1,758 | ) | (444 | ) | ||||||||
Provision (benefit) for income taxes | - | (58 | ) | |||||||||
Net income from continuing operations | (1,758 | ) | (386 | ) | ||||||||
Discontinued operations: | ||||||||||||
Net income from discontinued operations | 13 | - | 521 | |||||||||
Net income | $ | (1,758 | ) | $ | 135 | |||||||
Other comprehensive income | ||||||||||||
Cumulative translation adjustment | (538 | ) | 1,455 | |||||||||
Comprehensive income | $ | (2,296 | ) | $ | 1,590 | |||||||
Net income per share | ||||||||||||
Basic | 11 | $ | (0.02 | ) | $ | 0.00 | ||||||
Diluted | 11 | $ | (0.02 | ) | $ | 0.00 | ||||||
Weighted average number of common shares outstanding: | ||||||||||||
Basic | 83,589 | 80,853 | ||||||||||
Diluted | 83,589 | 85,790 |
The accompanying notes are an integral part of these condensed consolidated interim financial statements.
Page | 4
PROTECH HOME MEDICAL CORP.
CONDENSED CONSOLIDATED INTERIM STATEMENTS OF
CHANGES IN SHAREHOLDERS’ EQUITY
(UNAUDITED)
(Expressed in thousands of Canadian Dollars, except per share amounts)
Number
of Shares (000’s) |
Capital
stock |
Contributed
surplus |
Accumulated
Deficit |
Accumulated
other comprehensive income |
||||||||||||||||||||
Balance September 30, 2018 | 75,819 | $ | 193,951 | $ | 19,041 | $ | (206,055 | ) | $ | 12,332 | $ | 19,269 | ||||||||||||
Net income | - | - | - | 135 | - | 135 | ||||||||||||||||||
Other comprehensive income | - | - | - | - | 1,455 | 1,455 | ||||||||||||||||||
Stock-based compensation (Note 8) | - | - | 530 | - | - | 530 | ||||||||||||||||||
Stock issued with acquisition (Note 3) | 227 | 164 | - | - | - | 164 | ||||||||||||||||||
Proceeds from issuance of shares (Note 8) | 7,483 | 4,120 | - | - | - | 4,120 | ||||||||||||||||||
Underwriter options issued (Note 8) | - | (135 | ) | 135 | - | - | - | |||||||||||||||||
Balance December 31, 2018 | 83,529 | $ | 198,100 | $ | 19,706 | $ | (205,920 | ) | $ | 13,787 | $ | 25,673 | ||||||||||||
Balance September 30, 2019 | 83,589 | $ | 198,196 | $ | 21,390 | $ | (213,440 | ) | $ | 13,003 | $ | 19,149 | ||||||||||||
Net loss | - | - | - | (1,758 | ) | - | (1,758 | ) | ||||||||||||||||
Other comprehensive income | - | - | - | - | (538 | ) | (538 | ) | ||||||||||||||||
Stock-based compensation (Note 8) | - | - | 42 | - | - | 42 | ||||||||||||||||||
Balance December 31, 2019 | 83,589 | $ | 198,196 | $ | 21,432 | $ | (215,198 | ) | $ | 12,465 | $ | 16,895 |
The accompanying notes are an integral part of these condensed consolidated interim financial statements.
Page | 5
PROTECH HOME MEDICAL CORP.
CONDENSED CONSOLIDATED INTERIM STATEMENTS OF CASH FLOWS
(UNAUDITED)
(Expressed in thousands of Canadian Dollars, except per share amounts)
Notes |
Three months ended
December 31, 2019 |
Three months ended
December 31, 2018 |
||||||||||
Operating activities | ||||||||||||
Net income from continuing operations | $ | (1,758 | ) | $ | (386 | ) | ||||||
Net income from discontinued operations | - | 521 | ||||||||||
Adjustments to reconcile net income to net cash provided by operating activities: | ||||||||||||
Depreciation and amortization | 4,790 | 3,318 | ||||||||||
Depreciation and amortization - discontinued operations | - | 100 | ||||||||||
Accretion expense | - | 100 | ||||||||||
Change in fair value of debentures and derivative | 7 | 735 | (68 | ) | ||||||||
Gain on disposal of property and equipment | (79 | ) | (2 | ) | ||||||||
Stock-based compensation | 8 | 42 | 530 | |||||||||
Bad debt expense | 10 | 1,984 | 1,322 | |||||||||
Bad debt expense - discontinued operations | - | 21 | ||||||||||
Change in Working Capital: | ||||||||||||
Net (increase) decrease in accounts receivable | (669 | ) | (2,730 | ) | ||||||||
Net (increase) decrease in inventory | (534 | ) | (509 | ) | ||||||||
Net (increase) decrease in other current assets | (11 | ) | (694 | ) | ||||||||
Net increase (decrease) in trade payables and accrued liabilities | (55 | ) | 948 | |||||||||
Net cash flows provided by operating activities | $ | 4,445 | $ | 2,471 | ||||||||
Investing activities | ||||||||||||
Purchases of property and equipment | (43 | ) | (67 | ) | ||||||||
Proceeds from sales of property and equipment | 92 | 2 | ||||||||||
Cash paid for acquisitions | 3 | (4,160 | ) | (526 | ) | |||||||
Net cash flow used in investing activities | $ | (4,111 | ) | $ | (591 | ) | ||||||
Financing activities | ||||||||||||
Payments of finance lease obligations | (4,979 | ) | (4,481 | ) | ||||||||
Proceeds from issuance of common shares | - | 4,120 | ||||||||||
Net cash flow received (used in) financing activities | $ | (4,979 | ) | $ | (361 | ) | ||||||
Net increase (decrease) in cash | (4,645 | ) | 1,519 | |||||||||
Effect of exchange rate changes on cash held in foreign currencies | 153 | 399 | ||||||||||
Cash, beginning of period | 12,855 | 4,331 | ||||||||||
Cash, end of period | $ | 8,363 | $ | 6,249 |
The accompanying notes are an integral part of these condensed consolidated interim financial statements.
Page | 6
PROTECH HOME MEDICAL CORP.
NOTES TO THE CONDENSED CONSOLIDATED
INTERIM FINANCIAL STATEMENTS
(UNAUDITED)
(Tabular dollar amounts expressed in thousands of Canadian Dollars, except per share amounts)
1. | Nature of operations |
Reporting entity
Protech Home Medical Corp. ("Protech" or the “Company”) was incorporated under the Business Corporations Act (Alberta) on March 5, 1993. On December 30, 2013, the Company was continued into British Columbia, Canada. The address of the registered office is 5626 Larch St. Suite 202, Vancouver, BC V6M 4E1. The head office is located at 1019 Town Drive, Wilder, Kentucky, United States. The Company is a participating Medicare provider that provides i) nebulizers, oxygen concentrators, and CPAP and BiPAP units; ii) traditional and non-traditional durable medical respiratory equipment and services; and iii) non-invasive ventilation equipment, supplies and services. The Company has embarked on an acquisition strategy for additional revenue and profit growth. The Company’s shares are traded on the TSX Venture Exchange under the symbol PTQ. The stock is also traded over the counter in the United States under the symbol PHMZF.
On July 29, 2019, the Company sold all the assets of one of its subsidiaries, Patient Home Monitoring, Inc. The consolidated financial statements and the notes reflect the Patient Home Monitoring, Inc. as discontinued operations. Prior year amounts have been reclassified in order to be comparable to the current year presentation.
Share consolidation
Effective December 31, 2018, the Company consolidated its common shares on the basis of one (1) new post-consolidation common share for every five (5) pre-consolidation common shares. The consolidation will affect shareholders uniformly, including holders of outstanding incentive stock options, warrants and other securities convertible into exercisable for common shares on the effective date.
Going concern
These consolidated financial statements have been prepared on a going concern basis. The application of the going concern basis of presentation assumes that the Company will continue its operations for the foreseeable future and be able to realize its assets and discharge its liabilities and commitments in the normal course of operation. If this assumption was not appropriate, adjustments to these condensed consolidated financial statements may be necessary.
2. | Summary of significant accounting policies |
Unreserved statement of compliance
These unaudited condensed consolidated interim financial statements have been prepared in accordance with International Accounting Standard (IAS) 34, Interim Financial Reporting using accounting policies consistent with International Financial Reporting Standards (IFRS) as issued by the International Accounting Standards Board. These condensed consolidated interim financial statements do not include all the disclosures required in annual consolidated financial statements and should be read in conjunction with the Company’s audited consolidated financial statements for the years ended September 30, 2019 and 2018.
Except as noted below, the Company has followed the same basis of presentation, accounting policies and method of computation for these condensed consolidated interim financial statements as disclosed in the annual audited consolidated financial statements for the years ended September 30, 2019 and 2018.
The unaudited condensed consolidated interim financial statements were approved and authorized for issuance by the Board of Directors on February 26, 2020.
These unaudited condensed consolidated interim financial statements, which are presented in Canadian dollars, have been prepared under the historical cost convention, as modified by the measurement at fair values of certain financial assets and financial liabilities.
Page | 7
PROTECH HOME MEDICAL CORP.
NOTES TO THE CONDENSED CONSOLIDATED
INTERIM FINANCIAL STATEMENTS
(UNAUDITED)
(Tabular dollar amounts expressed in thousands of Canadian Dollars, except per share amounts)
New standards and interpretations adopted
IFRS 16, Leases
Effective October 1, 2019, the Company adopted IFRS 16, Leases. IFRS 16 eliminates the distinction between operating and finance leases from the perspective of the lessee. All contracts that meet the definition of a lease will be recorded in the statement of financial position with a “right of use” asset and a corresponding liability at the present value of the future lease payments using the lessee’s incremental borrowing rate of 8%.
The Company elected to adopt IFRS 16 using the modified retrospective approach. Under this approach, the Company will not restate its comparative figures, but will recognize the cumulative effect of adopting IFRS 16 as an adjustment to opening statement of financial position, with the recognition of $3,302,000 of right of use assets and finance lease obligations on October 1, 2019. On the condensed consolidated statement of income, the impact of the adoption of IFRS 16 is to increase depreciation expense and interest expense, and decrease selling, general, and administrative expenses.
The Company elected to apply the practical expedient to exclude recognition of right of use assets and lease liabilities for leases under 12 months in duration or for which the lease term ends within 12 months of initial application for leases, and for low-value assets. The Company also elected to apply IFRS 16 only to the contracts that were previously identified as leases. Contracts that were not identified as leases under IAS 17 Leases will not be reassessed for whether a lease exists.
Functional currency
The consolidated financial statements of the Company are presented in Canadian dollars, which is the parent Company’s presentation currency but which differs from its functional currency, the US Dollar, which was determined using management’s judgment that the primary economic environment in which it will derive its revenue and expenses incurred to generate those revenues is the United States. Management has exercised judgment in selecting the functional currency of each of the entities that it consolidates based on the primary economic environment in which the entity operates and in reference to the various indicators including the currency that primarily influences or determines the selling prices of goods and services and the cost of production, including labor, material and other costs and the currency whose competitive forces and regulations mainly determine selling prices.
Business combinations
In accordance with IFRS 3 - Business Combination (“IFRS 3”), a transaction is recorded as a business combination if the significant assets, liabilities, or activities in addition to property and related mortgage debt assumed constitute a business. A business is defined as an integrated set of activities and assets, capable of being conducted and managed for the purpose of providing a return, lower costs, or other economic benefits. Where there are no such integrated activities, the transaction is treated as an asset acquisition. The estimation of the fair value of the assets and liabilities acquired in an acquisition is subject to judgement concerning estimating market values and predicting future events. These values are uncertain and can materially impact the carrying value of the acquired assets and the amount allocated to goodwill.
Recognition and initial measurement
The Company recognizes financial assets when it becomes party to the contractual provisions of the instrument. Financial assets are measured initially at their fair value plus, in the case of financial assets not subsequently measured at fair value through profit or loss, transaction costs that are directly attributable to their acquisition. Transaction costs attributable to the acquisition of financial assets subsequently measured at fair value through profit or loss are expensed in the consolidated statement of income (loss) and comprehensive income (loss) when incurred.
Page | 8
PROTECH HOME MEDICAL CORP.
NOTES TO THE CONDENSED CONSOLIDATED
INTERIM FINANCIAL STATEMENTS
(UNAUDITED)
(Tabular dollar amounts expressed in thousands of Canadian Dollars, except per share amounts)
3. | Acquisition of businesses and purchase accounting |
Acquisition of Cooley Medical Equipment, Inc. (Cooley)
Effective October 1, 2019, the Company, through one of its indirect wholly owned subsidiaries, entered into a purchase agreement to acquire the shares of Cooley Medical Equipment, Inc. (Cooley), a Kentucky company in the same industry as the Company. The purchase price was $3,089,000 in cash. The Company has determined that the transaction is an acquisition of a business under IFRS 3 and it has been accounted for by applying the acquisition method.
Pro forma twelve-month revenues and net loss for Cooley had the acquisition occurred on October 1, 2018 were approximately $9,500,000 and ($1,700,000), respectively. Cooley contributed approximately $2,350,000 of revenue and ($370,000) of net loss, net of acquisition costs, for the three months ended December 31, 2019.
The fair value of the acquired assets is provisional pending final valuations of the asset and is as follows:
Cash | $ | 106 | ||
Accounts receivable | 801 | |||
Inventory | 818 | |||
Prepaid assets | 55 | |||
Property and equipment | 2,834 | |||
Goodwill | 1,794 | |||
Assumed liabilities | (3,319 | ) | ||
Net assets acquired | $ | 3,089 |
Acquisition of Acadia Medical Supply, Inc. (Acadia)
Effective December 1, 2019, the Company, through one of its indirect wholly owned subsidiaries, entered into a purchase agreement to acquire the shares of Acadia Medical Supply, Inc. (Acadia), a Maine company in the same industry as the Company. The purchase price was $1,071,000 in cash. The Company has determined that the transaction is an acquisition of a business under IFRS 3 and it has been accounted for by applying the acquisition method.
Pro forma twelve-month revenues and net income for Acadia had the acquisition occurred on October 1, 2018 were approximately $4,200,000 and $400,000, respectively. Acadia contributed approximately $350,000 of revenue and $70,000 of net income, net of ac for the three months ended December 31, 2019.
The fair value of the acquired assets is provisional pending final valuations of the asset and is as follows:
Cash | $ | 79 | ||
Accounts receivable | 139 | |||
Inventory | 350 | |||
Property and equipment | 164 | |||
Deposits | 10 | |||
Goodwill | 1,815 | |||
Accounts payable and accrued liabilities | (1,486 | ) | ||
Net assets acquired | $ | 1,071 |
Prior Periods
During the three months ended December 31, 2018, the Company acquired two businesses. The details of these acquisitions were disclosed in Note 7 of the Company’s annual financial statements for the year ended September 30, 2019.
Page | 9
PROTECH HOME MEDICAL CORP.
NOTES TO THE CONDENSED CONSOLIDATED
INTERIM FINANCIAL STATEMENTS
(UNAUDITED)
(Tabular dollar amounts expressed in thousands of Canadian Dollars, except per share amounts)
4. | Inventory |
As at December 31, | As at September 30, | |||||||
2019 | 2019 | |||||||
Serialized | $ | 1,461 | $ | 936 | ||||
Non-serialized | 4,851 | 3,802 | ||||||
Total inventory | $ | 6,312 | $ | 4,738 |
5. | Property and equipment and right of use assets |
Property and equipment is stated at cost less accumulated depreciation. Major renewals and improvements are charged to the property accounts, while maintenance, and repairs which do not extend the useful life of the respective assets, are expensed as incurred. Depreciation is computed using the straight-line method over the estimated useful lives of the respective assets.
The estimated useful lives of the assets are as follows:
Description | Estimated Useful Life | |
Monitoring equipment | 1-5 years | |
Computer equipment | 3-5 years | |
Vehicles | 3-5 years | |
Office furniture and fixtures | 5-10 years | |
Leasehold improvements and right of use real estate leases | Life of Lease |
Depreciation of monitoring equipment commences once it has been deployed to a patient’s address and put in use. Property and equipment and other non-current assets with definite useful lives are tested for impairment whenever events or changes in circumstances indicate that their carrying amount may not be recoverable.
Cost |
Monitoring
equipment |
Computer
equipment |
Office
furniture and fixtures |
Leasehold
improvements |
Vehicles |
Capital
leases adopted - IFRS 16 |
Total | |||||||||||||||||||||
Balance September 30, 2019 | $ | 35,377 | $ | 668 | $ | 574 | $ | 1,548 | $ | 3,426 | $ | - | $ | 41,593 | ||||||||||||||
Additions - adoption of IFRS 16 | - | - | - | - | - | 3,302 | 3,302 | |||||||||||||||||||||
Additions | 3,242 | 5 | - | 38 | 325 | 791 | 4,401 | |||||||||||||||||||||
Acquisitions | 1,770 | - | - | 306 | 95 | 827 | 2,998 | |||||||||||||||||||||
Disposals | (4,493 | ) | (5 | ) | (1 | ) | (2 | ) | (72 | ) | - | (4,573 | ) | |||||||||||||||
Foreign exchange | (469 | ) | (11 | ) | (10 | ) | (20 | ) | (40 | ) | (95 | ) | (645 | ) | ||||||||||||||
Balance December 31, 2019 | $ | 35,427 | $ | 657 | $ | 563 | $ | 1,870 | $ | 3,734 | $ | 4,825 | $ | 47,076 |
Accumulated Depreciation |
Monitoring
equipment |
Computer
equipment |
Office
furniture and fixtures |
Leasehold
improvements |
Vehicles |
Capital
leases adopted - IFRS 16 |
Total | |||||||||||||||||||||
Balance September 30, 2019 | $ | 19,557 | $ | 491 | $ | 344 | $ | 340 | $ | 1,365 | $ | - | $ | 22,097 | ||||||||||||||
Depreciation | 3,840 | 34 | 33 | 59 | 195 | 390 | 4,551 | |||||||||||||||||||||
Disposals | (4,496 | ) | (5 | ) | (1 | ) | (2 | ) | (44 | ) | - | (4,548 | ) | |||||||||||||||
Foreign exchange | (153 | ) | (9 | ) | (7 | ) | (4 | ) | (26 | ) | (5 | ) | (204 | ) | ||||||||||||||
Balance December 31, 2019 | $ | 18,748 | $ | 511 | $ | 369 | $ | 393 | $ | 1,490 | $ | 385 | $ | 21,896 |
Net Book Value |
Monitoring
equipment |
Computer
equipment |
Office
furniture and fixtures |
Leasehold
improvements |
Vehicles |
Capital
leases adopted - IFRS 16 |
Total | |||||||||||||||||||||
Balance September 30, 2019 | $ | 15,820 | $ | 177 | $ | 230 | $ | 1,208 | $ | 2,061 | $ | - | $ | 19,496 | ||||||||||||||
Balance December 31, 2019 | $ | 16,679 | $ | 146 | $ | 194 | $ | 1,477 | $ | 2,244 | $ | 4,440 | $ | 25,180 |
Page | 10
PROTECH HOME MEDICAL CORP.
NOTES TO THE CONDENSED CONSOLIDATED
INTERIM FINANCIAL STATEMENTS
(UNAUDITED)
(Tabular dollar amounts expressed in thousands of Canadian Dollars, except per share amounts)
6. | Goodwill and intangible assets |
The Company has recorded various intangible assets consisting primarily of non-compete agreements, trademarks, customer contracts and customer relationships. Non-compete agreements are the value associated with the non-compete agreements entered by the sellers of purchased companies. Trademarks are the purchase price allocation for the value associated with the trade name of the acquired company. Customer contracts are comprised of the purchase price allocation of the present value of expected future customer billings based on the statistical life of a customer. Customer relationships are the value given in the purchase price allocation to the long-term associations with referral sources such as doctors, medical centers, etc. Finite life intangible assets are amortized on a straight-line basis over the estimated useful lives of the related assets as follows:
Description | Estimated Useful Life | |
Non-compete agreements | 5 Years | |
Trademarks | 10 Years | |
Customer contracts | 2 Years | |
Customer relationships | 10 Years |
Gains or losses arising from de-recognition of an intangible asset are measured as the difference between the net disposal proceeds and the carrying amount of the asset and are recognized in the Statements of Net Loss and Comprehensive Loss when the asset is derecognized.
The Company reviews the estimates for useful lives on an annual basis, or more frequently if events during the year indicate that a change may be required, with consideration given to technological obsolescence and other relevant business factors. A change in management’s estimate could impact depreciation/amortization expense and the carrying value of property and equipment and intangible assets.
Cost | Goodwill |
Non-
compete agreements |
Brand |
Customer
contracts |
Customer
relationships |
Sub-total
intangibles with finite lives |
Total | |||||||||||||||||||||
Balance September 30, 2019 | $ | 1,881 | $ | 684 | $ | 1,776 | $ | 5,099 | $ | 11,204 | $ | 18,763 | $ | 20,644 | ||||||||||||||
Acquisitions | 3,609 | - | - | - | - | - | 3,609 | |||||||||||||||||||||
Effects of changes in exchange rates | (113 | ) | (13 | ) | (34 | ) | (98 | ) | (216 | ) | (361 | ) | (474 | ) | ||||||||||||||
Balance December 31, 2019 | $ | 5,377 | $ | 671 | $ | 1,742 | $ | 5,001 | $ | 10,988 | $ | 18,402 | $ | 23,779 |
Accumulation amortization | Goodwill |
Non-
compete agreements |
Brand |
Customer
contracts |
Customer
relationships |
Sub-total
intangibles with finite lives |
Total | |||||||||||||||||||||
Balance September 30, 2019 | $ | - | $ | 636 | $ | 1,176 | $ | 4,937 | $ | 9,103 | $ | 15,852 | $ | 15,852 | ||||||||||||||
Amortization | - | 12 | 26 | 94 | 107 | 239 | 239 | |||||||||||||||||||||
Effect of changes in exchange rates | - | (12 | ) | (23 | ) | (96 | ) | (177 | ) | (308 | ) | (308 | ) | |||||||||||||||
Balance December 31, 2019 | - | $ | 636 | $ | 1,179 | $ | 4,935 | $ | 9,033 | $ | 15,783 | $ | 15,783 |
Net carrying amount | Goodwill |
Non-
compete agreements |
Brand |
Customer
contracts |
Customer relationships |
Sub-total
intangibles with finite lives |
Total | |||||||||||||||||||||
Balance September 30, 2019 | $ | 1,881 | $ | 48 | $ | 600 | $ | 162 | $ | 2,101 | $ | 2,911 | $ | 4,792 | ||||||||||||||
Balance December 31, 2019 | $ | 5,377 | $ | 35 | $ | 563 | $ | 66 | $ | 1,955 | $ | 2,619 | $ | 7,996 |
Page | 11
PROTECH HOME MEDICAL CORP.
NOTES TO THE CONDENSED CONSOLIDATED
INTERIM FINANCIAL STATEMENTS
(UNAUDITED)
(Tabular dollar amounts expressed in thousands of Canadian Dollars, except per share amounts)
7. | Debentures and lease liabilities |
Debentures
On March 7, 2019, the Company issued $15,000,000 in 8.0% Convertible Unsecured Debentures due March 7, 2024, with interest payable semi-annually on June 30th and December 30th of each year. Each $1,000 debenture is convertible at the option of the holder into approximately 769.23 common shares. After three years, the Company can force conversion of the outstanding principal at conversion price of $1.30, if the daily volume weighted average price of the common shares exceeds $1.62/share for twenty consecutive trading days. The debenture agreement also allows for payment of cash in lieu of common shares upon exercise of conversion right by the holder, equivalent of the market price on the conversion date.
The debentures contain multiple embedded derivatives including conversion right, forced conversion option and payment in lieu of common shares. Since the Company is unable to measure the fair value of embedded derivatives reliably, it has chosen to designate the convertible debentures in their entirety (including conversion right, forced conversion option and payment in lieu of common shares) to be subsequently measured at fair value through profit or loss (FVTPL).
The debentures are valued at fair value using the current trading price, with change in fair market value of $735,000 has been recorded in the statement of (loss) income and other comprehensive (loss) income for the three months ended December 31, 2019.
During 2014, the Company issued $8,625,000 in unsecured subordinated debentures due December 31, 2019. The debentures were repaid in April 2019 for $8,970,000, including a prepayment premium.
Leases Liabilities
Below is the movement in lease liabilities:
Three months ended
December 31, 2019 |
||||
Balance, September 30, 2019 | $ | 11,609 | ||
Additions during the period | 9,506 | |||
Repayments | (4,979 | ) | ||
Effect of changes in exchange rates | (266 | ) | ||
Balance, December 31, 2019 | $ | 15,870 |
Additions during the year comprises of finance leases for monitoring equipment with interest at fixed rates between 0.0% - 11.5%, due between 2019 and 2023.
Future payments pursuant to lease liabilities are as follows:
As at
December 31, 2019 |
As at
September 30, 2019 |
|||||||
Less than 1 year | $ | 10,659 | $ | 8,528 | ||||
Between 1 and 5 years | 5,211 | 3,081 | ||||||
More than five years | - | - | ||||||
Total | $ | 15,870 | $ | 11,609 |
Page | 12
PROTECH HOME MEDICAL CORP.
NOTES TO THE CONDENSED CONSOLIDATED
INTERIM FINANCIAL STATEMENTS
(UNAUDITED)
(Tabular dollar amounts expressed in thousands of Canadian Dollars, except per share amounts)
8. | Share capital |
Bought deal and private placement
On November 2, 2018, the Company completed a bought deal offering of 5,649,600 common shares of the Company at a price of $0.60 per share for gross proceeds to the Company of $3,390,000. Along with this bought deal, the Company also completed a previously announced non-brokered private placement of 1,833,333 common shares to officers and directors at the $0.60 issue price for gross proceeds to the Company of $1,100,000. Issuance costs of $343,000 in cash were incurred. The Company also issued to the underwriter compensation options equal to 6.5% of the offered shares (367,224). Each compensation option is exercisable into one common share of the Company at the issue price for a period of 24 months from the closing of the offering. These shares are recorded as compensation options at $0.60 per share. The fair value of the options has been properly valued using the Black-Scholes option pricing model.
Options
The Company has a stock option plan, which it uses for grants to directors, officers, employees and consultants. Options granted under the plan are non-assignable and may be granted for a term not exceeding ten years. Stock options generally either vest immediately or annually over a two to three-year period.
A summary of stock options is provided below:
Number of options
(000’s) |
Weighted
average exercise price |
|||||||
Balance September 30, 2019 | 11,759 | $ | 0.52 | |||||
Forfeited | (82 | ) | 0.82 | |||||
Balance December 30, 2019 | 11,677 | $ | 0.50 |
At December 31, 2019, the Company had 11,323,274 vested, exercisable stock options with a weighted average exercise price of $0.48.
Stock-based compensation
The Company accounts for stock-based compensation, including stock options, using the fair value method as prescribed by IFRS 2. Under this method, the fair value of stock options at the date of grant is expensed over the vesting period and the offsetting credit is recorded as an increase in contributed surplus.
For the three months ended December 31, 2019 and 2018, the Company recorded stock-based compensation expense of $42,000 and $530,000, respectively.
The fair value of the stock options has been charged to the statement of loss and comprehensive loss and credited to contributed surplus over the proper vesting period, using the Black-Scholes option pricing model calculated using the following assumptions:
Three months ended | Three months ended | |||
December 31, 2019 | December 31, 2018 | |||
Share price | N/A | $0.63 | ||
Risk-free interest rate | N/A | 2.24% | ||
Expected volatility | N/A | 118.17% | ||
Expected life of option | N/A | 10 years | ||
Expected dividend yield | N/A | Nil |
Page | 13
PROTECH HOME MEDICAL CORP.
NOTES TO THE CONDENSED CONSOLIDATED
INTERIM FINANCIAL STATEMENTS
(UNAUDITED)
(Tabular dollar amounts expressed in thousands of Canadian Dollars, except per share amounts)
9. | Contingencies |
From time to time, the Company is involved in various legal proceedings arising from the ordinary course of business, None of the matters in which the Company is currently involved, either individually, or in the aggregate, is expected to have a material adverse effect on the Company’s consolidated financial position, results of operations, or cash flows.
10. | Selling, general and administrative |
Three Months Ended | Three Months Ended | |||||||
December 31, 2019 | December 31, 2018 | |||||||
Payroll and employee benefits | $ | 7,680 | $ | 6,441 | ||||
Facilities related expenses | 675 | 920 | ||||||
Bad debt expense | 1,984 | 1,322 | ||||||
Billing | 435 | 416 | ||||||
Auto expense | 429 | 357 | ||||||
Professional fees | 381 | 336 | ||||||
Utilities | 150 | 134 | ||||||
Patient acquisition | 220 | 178 | ||||||
Other | 598 | 439 | ||||||
Total | $ | 12,552 | $ | 10,543 |
11. | Income (Loss) per share |
Income (loss) per common share is calculated using the weighted average number of common shares outstanding during the period. Diluted income (loss) per share amounts are calculated giving effect to the potential dilution that would occur if securities or other contracts to issue common shares were exercised or converted to common shares by assuming the proceeds received from the exercise of stock options and warrants are used to purchase common shares at the prevailing market rate. There is no impact on diluted income (loss) per share because it is antidilutive. For the purpose of income (loss) per common share calculations, the exchangeable Class A common shares of a subsidiary are treated as though they were exchanged.
Income (loss) per share is based on the consolidated income (loss) for the quarter divided by the weighted average number of shares outstanding during the period. Diluted income (loss) per share is computed in accordance with the treasury stock method and based on the weighted average number of shares and dilutive share equivalents.
The following reflects the earnings and share data used in the basic and diluted income (loss) per share computations:
Three months ended | Three months ended | |||||||
December 31, 2019 | December 31, 2018 | |||||||
Net loss for continuing operations | $ | (2,069 | ) | $ | (373 | ) | ||
Net income for discontinued operations | - | 508 | ||||||
Basic weighted average number of shares | 83,589 | 80,853 | ||||||
Diluted weighted average number of shares | 83,589 | 85,790 | ||||||
Basic - continuing operations | $ | (0.02 | ) | $ | (0.00 | ) | ||
Basic - discontinuing operations | $ | (0.02 | ) | $ | 0.01 | |||
Diluted - continuing operations | $ | (0.02 | ) | $ | (0.00 | ) | ||
Diluted - discontinuing operations | $ | (0.02 | ) | $ | 0.01 |
The outstanding stock options for the quarter ended December 31, 2019 were excluded from the calculation of diluted loss per share because their effect is anti-dilutive.
12. | Related party transactions |
The Company has entered into six market rate leases for office, warehouse, and retail space with a rental Company affiliated with the Company’s Chief Executive Officer. The leases have a combined area of 74,520 square feet. Lease payments under these leases are approximately $68,000 per month, plus taxes, utilities and maintenance.
Payments of $55,000 and $52,000 were made to the board for years ended December 30, 2019 and 2018, respectively.
Page | 14
PROTECH HOME MEDICAL CORP.
NOTES TO THE CONDENSED CONSOLIDATED
INTERIM FINANCIAL STATEMENTS
(UNAUDITED)
(Tabular dollar amounts expressed in thousands of Canadian Dollars, except per share amounts)
Key management personnel also participate in the Company’s share option program (see Note 8). The Company paid or accrued compensation to key management personnel the following:
Three months ended
December 31, 2019 |
Three months ended
December 31, 2018 |
|||||||
Salaries and Benefits | $ | 247 | $ | 255 | ||||
Stock-based compensation | - | 333 | ||||||
Total | $ | 247 | $ | 588 |
13. | Discontinued Operations |
On July 29, 2019, the Company sold the assets of Patient Home Monitoring, Inc. The consolidated financial statements and the notes reflect the Patient Home Monitoring, Inc. as discontinued operations. Prior year amounts have been reclassified in order to be comparable to the current year presentation, as follows:
Three months
ended December 31, 2018 |
||||
Revenue | $ | 1,191 | ||
Cost of revenue | (94 | ) | ||
Gross margin | 1,285 | |||
Expenses: | ||||
Selling, general and administrative | 664 | |||
Depreciation | 100 | |||
Income tax expense | - | |||
Net income from discontinued operations | $ | 521 |
Page | 15
Exhibit 99.23
FORM 52-109FV2
CERTIFICATION OF INTERIM FILINGS
VENTURE ISSUER BASIC CERTIFICATE
I, Gregory Crawford, as Chief Executive Officer of Protech Home Medical Corp., certify the following:
1. Review: I have reviewed the interim financial report and interim MD&A (together, the “interim filings”) of Protech Home Medical Corp. (the “issuer”) for the interim period ended December 31, 2019.
2. No misrepresentations: Based on my knowledge, having exercised reasonable diligence, the interim filings do not contain any untrue statement of a material fact or omit to state a material fact required to be stated or that is necessary to make a statement not misleading in light of the circumstances under which it was made, with respect to the period covered by the interim filings.
3. Fair presentation: Based on my knowledge, having exercised reasonable diligence, the interim financial report together with the other financial information included in the interim filings fairly present in all material respects the financial condition, financial performance and cash flows of the issuer, as of the date of and for the periods presented in the interim filings.
Dated: February 26, 2020
(signed) “Gregory Crawford” | |
Gregory Crawford | |
Chief Executive Officer |
NOTE TO READER
In contrast to the certificate required for non-venture issuers under National Instrument 52-109 Certification of Disclosure in Issuers’ Annual and Interim Filings (NI 52-109), this Venture Issuer Basic Certificate does not include representations relating to the establishment and maintenance of disclosure controls and procedures (DC&P) and internal control over financial reporting (ICFR), as defined in NI 52-109. In particular, the certifying officers filing this certificate are not making any representations relating to the establishment and maintenance of
i. controls and other procedures designed to provide reasonable assurance that information required to be disclosed by the issuer in its annual filings, interim filings or other reports filed or submitted under securities legislation is recorded, processed, summarized and reported within the time periods specified in securities legislation; and
ii. a process to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with the issuer’s GAAP.
The issuer’s certifying officers are responsible for ensuring that processes are in place to provide them with sufficient knowledge to support the representations they are making in this certificate. Investors should be aware that inherent limitations on the ability of certifying officers of a venture issuer to design and implement on a cost effective basis DC&P and ICFR as defined in NI 52-109 may result in additional risks to the quality, reliability, transparency and timeliness of interim and annual filings and other reports provided under securities legislation.
|
Exhibit 99.24
FORM 52-109FV2
CERTIFICATION OF INTERIM FILINGS
VENTURE ISSUER BASIC CERTIFICATE
I, Hardik Mehta, as Chief Financial Officer of Protech Home Medical Corp., certify the following:
1. Review: I have reviewed the interim financial report and interim MD&A (together, the “interim filings”) of Protech Home Medical Corp. (the “issuer”) for the interim period ended December 31, 2019.
2. No misrepresentations: Based on my knowledge, having exercised reasonable diligence, the interim filings do not contain any untrue statement of a material fact or omit to state a material fact required to be stated or that is necessary to make a statement not misleading in light of the circumstances under which it was made, with respect to the period covered by the interim filings.
3. Fair presentation: Based on my knowledge, having exercised reasonable diligence, the interim financial report together with the other financial information included in the interim filings fairly present in all material respects the financial condition, financial performance and cash flows of the issuer, as of the date of and for the periods presented in the interim filings.
Dated: February 26, 2020
(signed) “Hardik Mehta” | |
Hardik Mehta | |
Chief Financial Officer |
NOTE TO READER
In contrast to the certificate required for non-venture issuers under National Instrument 52-109 Certification of Disclosure in Issuers’ Annual and Interim Filings (NI 52-109), this Venture Issuer Basic Certificate does not include representations relating to the establishment and maintenance of disclosure controls and procedures (DC&P) and internal control over financial reporting (ICFR), as defined in NI 52-109. In particular, the certifying officers filing this certificate are not making any representations relating to the establishment and maintenance of
i. controls and other procedures designed to provide reasonable assurance that information required to be disclosed by the issuer in its annual filings, interim filings or other reports filed or submitted under securities legislation is recorded, processed, summarized and reported within the time periods specified in securities legislation; and
ii. a process to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with the issuer’s GAAP.
The issuer’s certifying officers are responsible for ensuring that processes are in place to provide them with sufficient knowledge to support the representations they are making in this certificate. Investors should be aware that inherent limitations on the ability of certifying officers of a venture issuer to design and implement on a cost effective basis DC&P and ICFR as defined in NI 52-109 may result in additional risks to the quality, reliability, transparency and timeliness of interim and annual filings and other reports provided under securities legislation.
|
Exhibit 99.25
Protech Home Medical Provides Business update IN RESPONSE TO covid-19 VIRUS
Cincinnati, Ohio – March 18, 2020 – Protech Home Medical Corp. (the “Company” or “Protech”) (TSXV: PTQ), a healthcare services company with operations in the U.S., provides the following business update in the face of the Covid-19 pandemic.
Protech is on the front lines of providing home healthcare in its markets in the United States. Its products are critical for many of its patients. To this point, the President’s guidelines for the next 15 days, issued on March 16, 2020, specifically noted that healthcare services are a critical infrastructure industry as defined by the Department of Homeland Security and employees of companies in this industry have a social responsibility to maintain a normal work schedule to meet service demands. Protech intends to adhere to these guidelines and facilitate in the nation’s response to this pandemic in all respects. Protech places the safety and wellbeing of its employees and patients as the highest priority. Over the past several weeks Protech has modified its current policies and implemented the instructions provided by the Centers for Disease Control and Prevention in order to best protect its employees and patient network.
“These are unprecedented times,” commented CEO and Chairman, Greg Crawford. “We are working diligently to meet the needs of our tens of thousands of patients with a robust and dependable supply chain. I am happy to report today that our supply chain remains stable with sufficient inventory, and our suppliers have confirmed that placed and forecasted orders are currently intact. Furthermore, we are also currently receiving an increase in enquiries from our referral network that are actively seeking to rapidly discharge patients from in hospital care to home care as institutions work to free up hospital beds in preparation for a potentially worsening pandemic situation. We have also been accelerating inventory purchases to safeguard against any potential future supply chain weaknesses and meet potential increased demand. Our balance sheet remains very strong to support us through these unprecedented times.”
“The fundamental nature of our business, providing patients with critical home care products such as ventilators and oxygen, places us in a unique position as it relates to this pandemic. All social stakeholders are keen to see such patients receive effective treatment outside of hospitals. This is what places us on the front lines of ensuring that our at home care ecosystem continues to function during these difficult times. While it is too early to tell what the impact of this situation could be on our business going forward, rest assured, we are operating at a high level of service to meet the current demand for our products. As always, we will continue to keep our stakeholders fully apprised of any material developments.
ABOUT PROTECH HOME MEDICAL
The Company provides in-home monitoring and disease management services for patients in the United States healthcare market. It seeks to continue to expand its offerings to include the management of several chronic disease states focusing on patients with heart or pulmonary disease, sleep disorders, reduced mobility and other chronic health conditions. The primary business objective of the Company is to create shareholder value by offering a broader range of services to patients in need of in-home monitoring and chronic disease management. The Company’s organic growth strategy is to increase annual revenue per patient by offering multiple services to the same patient, consolidating the patient’s services and making life easier for the patient.
Neither the TSX Venture Exchange nor its Regulation Services Provider (as that term is defined in the policies of the TSX Venture Exchange) accepts responsibility for the adequacy or accuracy of this release.
For further information please visit our website at www.protechhomemedical.com, or contact:
Gregory Crawford
Chief Executive Officer
Protech Home Medical Corp.
859-300-6455
investorinfo@myphm.com
Investor Relations:
Oak Hill Financial Inc.
Jonathan L. Robinson CFA
416-669-1001
jrobinson@oakhillfinancial.ca
Exhibit 99.26
Protech Home Medical ANNOUNCES continued business EXCELLENCE DURING covid-19 pandemic and comments on cms decision to remove NON-INVASIVE ventilators from competiTIve bidding program
Cincinnati, Ohio – April 13, 2020 – Protech Home Medical Corp. (the “Company” or “Protech”) (TSXV: PTQ), a healthcare services company with operations in the U.S., provides a further business update on its operations during the COVID-19 pandemic.
Protech provides home delivery and efficient online set-up of equipment for, primarily, chronic conditions. The Company, based in the United States, operates out of 42 locations in 10 states with over 17,000 referring physicians and approximately 80,000 current active patients.
“In just a few weeks, our business has settled into a new normal”, commented Greg Crawford, Chairman and CEO of Protech. “As we noted in our press release dated March 18, 2020, our business has been deemed essential by the US government and we continue full operations during this pandemic. Since then, we have seen an uptick in demand for our at-home services. In particular, the expedited initiative by the medical community to free up hospital beds by sending non-critical patients home has accelerated physician referrals in most segments of our business. We are also pleased that the supply chain for our critical equipment continues to remain effective, and we continue to opportunistically build inventory to meet expected increases in demand, particularly for ventilators and home oxygen equipment.”
Protech’s Chief Financial Officer, Hardik Mehta, added, “Protech is pleased to announce that it has received more than C$1.5 million in cash payment as part of the CARES Act Provider Relief Fund to support healthcare providers fighting the COVID-19 pandemic. These are payments to healthcare providers, not loans, and will not need to be repaid. As part of the terms and conditions the payments can only be used to prevent, prepare for, and respond to the pandemic. Protech plans to fully utilize these payments to procure additional equipment and products to prepare and respond to the anticipated demand related to the pandemic.”
“In a further positive development, CMS, the Centers for Medicare and Medicaid Services, has removed non-invasive ventilators from the 2021 Competitive Bidding Program. The removal is designed to ensure greater patient access for at-home ventilator therapy. This segment accounts for approximately 17% of Protech’s revenue which continues to grow aggressively, this is very comforting and provides a great boost to our patient centric clinical services that has evolved into industry leading best practices to serve the physician and patient community. This change effectively improves Protech’s confidence in accessing the supply chain for such equipment and strengthens Protech’s margin outlook on the provision of such equipment,” continued Mr. Crawford. “I also want to take this opportunity to give heartfelt thanks to each one of our over 375 incredible team members, many of whom are on the frontlines of this pandemic. I also want to assure them that all efforts are undertaken to keep them safe as they go about their tireless efforts to provide superior care to our patients.”
ABOUT PROTECH HOME MEDICAL
The Company provides in-home monitoring and disease management services for patients in the United States healthcare market. It seeks to continue to expand its offerings to include the management of several chronic disease states focusing on patients with heart or pulmonary disease, sleep disorders, reduced mobility and other chronic health conditions. The primary business objective of the Company is to create shareholder value by offering a broader range of services to patients in need of in-home monitoring and chronic disease management. The Company’s organic growth strategy is to increase annual revenue per patient by offering multiple services to the same patient, consolidating the patient’s services and making life easier for the patient.
Forward-Looking Statements
Certain statements contained in this press release constitute "forward-looking information" as such term is defined in applicable Canadian securities legislation. The words "may", "would", "could", "should", "potential", "will", "seek", "intend", "plan", "anticipate", "believe", "estimate", "expect" and similar expressions as they relate to the Company, including how the Company plans to spend the payments it received under the CARES Act Provider Relief Fund, are intended to identify forward-looking information. All statements other than statements of historical fact may be forward-looking information. Such statements reflect the Company's current views and intentions with respect to future events, and current information available to the Company, and are subject to certain risks, uncertainties and assumptions, including, without limitation: the Company’s ability to source additional equipment and products to prepare and respond to the anticipated demand related to the pandemic. Many factors could cause the actual results, performance or achievements that may be expressed or implied by such forward-looking information to vary from those described herein should one or more of these risks or uncertainties materialize. Examples of such risk factors include, without limitation: credit; market (including equity, commodity, foreign exchange and interest rate); liquidity; operational (including technology and infrastructure); reputational; insurance; strategic; regulatory; legal; environmental; capital adequacy; the general business and economic conditions in the regions in which the Company operates, including those related to the COVID-19 pandemic; the ability of the Company to execute on key priorities, including the successful completion of acquisitions, business retention, and strategic plans and to attract, develop and retain key executives; difficulty integrating newly acquired businesses; the ability to implement business strategies and pursue business opportunities; low profit market segments; disruptions in or attacks (including cyber-attacks) on the Company's information technology, internet, network access or other voice or data communications systems or services; the evolution of various types of fraud or other criminal behavior to which the Company is exposed; the failure of third parties to comply with their obligations to the Company or its affiliates; the impact of new and changes to, or application of, current laws and regulations; decline of reimbursement rates; dependence on few payors; possible new drug discoveries; a novel business model; dependence on key suppliers; granting of permits and licenses in a highly regulated business; the overall difficult litigation environment, including in the U.S.; increased competition; changes in foreign currency rates; increased funding costs and market volatility due to market illiquidity and competition for funding; the availability of funds and resources to pursue operations; critical accounting estimates and changes to accounting standards, policies, and methods used by the Company; and the occurrence of natural and unnatural catastrophic events and claims resulting from such events; as well as those risk factors discussed or referred to in the Company’s disclosure documents filed with the securities regulatory authorities in certain provinces of Canada and available at www.sedar.com. Should any factor affect the Company in an unexpected manner, or should assumptions underlying the forward-looking information prove incorrect, the actual results or events may differ materially from the results or events predicted. Any such forward-looking information is expressly qualified in its entirety by this cautionary statement. Moreover, the Company does not assume responsibility for the accuracy or completeness of such forward-looking information. The forward-looking information included in this press release is made as of the date of this press release and the Company undertakes no obligation to publicly update or revise any forward-looking information, other than as required by applicable law.
Neither the TSX Venture Exchange nor its Regulation Services Provider (as that term is defined in the policies of the TSX Venture Exchange) accepts responsibility for the adequacy or accuracy of this release.
For further information please visit our website at www.protechhomemedical.com, or contact:
Gregory Crawford
Chief Executive Officer
Protech Home Medical Corp.
859-300-6455
investorinfo@myphm.com
Investor Relations:
Oak Hill Financial Inc.
Jonathan L. Robinson CFA
416-669-1001
jrobinson@oakhillfinancial.ca
Exhibit 99.27
Protech Home Medical secures $5.97 million loan under payROLL protection provision of cares act
Company Anticipates Full Loan Forgiveness Under Terms of Act
Cincinnati, Ohio – April 20, 2020 – Protech Home Medical Corp. (the “Company” or “Protech”) (TSXV: PTQ), a healthcare services company with operations in the U.S., is pleased to announce that it has been approved for a CAD$5.97 million loan under the Payroll Protection Program (“PPP”) administered by the U.S. Small Business Administration.
The PPP is a US$349 billion loan program that originated from the U.S. Coronavirus Aid, Relief and Economic Security (CARES) Act. As a U.S. Small Business, Protech qualifies for the PPP which allows businesses with fewer than 500 employees to obtain loans of up to US$10 million to assist companies in maintaining their workers through the COVID-19 pandemic.
“The funds provided by the PPP is a welcomed demonstration of support by our Federal Government and we are grateful to see the show of support to American businesses and their employees,” commented Greg Crawford, Chairman and CEO of Protech. “We maintain a payroll in excess of just over 375 employees and this loan will provide additional flexibility in covering most employee-related costs in the near-to medium-term. The loan is forgivable if we maintain our payroll at current levels and it is our plan to do exactly that. This increased liquidity enhances our ability to maintain our payroll as we continue to operate strongly during this pandemic.”
“It has always been the case at Protech, but never more so than today in the face of this pandemic, that our employees are our most valuable asset. Our sincere thanks go out to them for the resilience they have shown during these unprecedented times.”
The loan has a term of two years, is unsecured, and is guaranteed by the U.S. Small Business Administration. The loan bears interest at a fixed rate of 1.0 percent per annum with the first six months of interest deferred and will be forgiven if the loan proceeds are used by Protech to cover payroll costs (including benefits), rent and utilities during the eight-week period following the loan origination date. Protech expects to meet the requirements for full loan forgiveness. The forgiven amount is not included in taxable income.
Protech provides home delivery and efficient online set-up of equipment for, primarily, chronic conditions. The Company operates out of 42 locations in 10 states with over 17,000 referring physicians and approximately 80,000 current active patients.
ABOUT PROTECH HOME MEDICAL
The Company provides in-home monitoring and disease management services for patients in the United States healthcare market. It seeks to continue to expand its offerings to include the management of several chronic disease states focusing on patients with heart or pulmonary disease, sleep disorders, reduced mobility and other chronic health conditions. The primary business objective of the Company is to create shareholder value by offering a broader range of services to patients in need of in-home monitoring and chronic disease management. The Company’s organic growth strategy is to increase annual revenue per patient by offering multiple services to the same patient, consolidating the patient’s services and making life easier for the patient.
Forward-Looking Statements
Certain statements contained in this press release constitute "forward-looking information" as such term is defined in applicable Canadian securities legislation. The words "may", "would", "could", "should", "potential", "will", "seek", "intend", "plan", "anticipate", "believe", "estimate", "expect" and similar expressions as they relate to the Company, including: the Company maintaining its payroll at current levels; and the Company expecting to meet the requirements for full loan forgiveness; are intended to identify forward-looking information. All statements other than statements of historical fact may be forward-looking information. Such statements reflect the Company's current views and intentions with respect to future events, and current information available to the Company, and are subject to certain risks, uncertainties and assumptions. Many factors could cause the actual results, performance or achievements that may be expressed or implied by such forward-looking information to vary from those described herein should one or more of these risks or uncertainties materialize. Examples of such risk factors include, without limitation: credit; market (including equity, commodity, foreign exchange and interest rate); liquidity; operational (including technology and infrastructure); reputational; insurance; strategic; regulatory; legal; environmental; capital adequacy; the general business and economic conditions in the regions in which the Company operates; the ability of the Company to execute on key priorities, including the successful completion of acquisitions, business retention, and strategic plans and to attract, develop and retain key executives; difficulty integrating newly acquired businesses; the ability to implement business strategies and pursue business opportunities; low profit market segments; disruptions in or attacks (including cyber-attacks) on the Company's information technology, internet, network access or other voice or data communications systems or services; the evolution of various types of fraud or other criminal behavior to which the Company is exposed; the failure of third parties to comply with their obligations to the Company or its affiliates; the impact of new and changes to, or application of, current laws and regulations; decline of reimbursement rates; dependence on few payors; possible new drug discoveries; a novel business model; dependence on key suppliers; granting of permits and licenses in a highly regulated business; the overall difficult litigation environment, including in the U.S.; increased competition; changes in foreign currency rates; increased funding costs and market volatility due to market illiquidity and competition for funding; the availability of funds and resources to pursue operations; critical accounting estimates and changes to accounting standards, policies, and methods used by the Company; the occurrence of natural and unnatural catastrophic events and claims resulting from such events; and risks related to COVID-19 including various recommendations, orders and measures of governmental authorities to try to limit the pandemic, including travel restrictions, border closures, non-essential business closures, quarantines, self-isolations, shelters-in-place and social distancing, disruptions to markets, economic activity, financing, supply chains and sales channels, and a deterioration of general economic conditions including a possible national or global recession; as well as those risk factors discussed or referred to in the Company’s disclosure documents filed with the securities regulatory authorities in certain provinces of Canada and available at www.sedar.com. Should any factor affect the Company in an unexpected manner, or should assumptions underlying the forward-looking information prove incorrect, the actual results or events may differ materially from the results or events predicted. Any such forward-looking information is expressly qualified in its entirety by this cautionary statement. Moreover, the Company does not assume responsibility for the accuracy or completeness of such forward-looking information. The forward-looking information included in this press release is made as of the date of this press release and the Company undertakes no obligation to publicly update or revise any forward-looking information, other than as required by applicable law.
Neither the TSX Venture Exchange nor its Regulation Services Provider (as that term is defined in the policies of the TSX Venture Exchange) accepts responsibility for the adequacy or accuracy of this release.
For further information please visit our website at www.protechhomemedical.com, or contact:
Gregory Crawford
Chief Executive Officer
Protech Home Medical Corp.
859-300-6455
investorinfo@myphm.com
Investor Relations:
Oak Hill Financial Inc.
Jonathan L. Robinson CFA
416-669-1001
jrobinson@oakhillfinancial.ca
Exhibit 99.28
PROTECH HOME MEDICAL ANNOUNCES PRELIMINARY SECOND QUARTER 2020 RESULTS
Cincinnati, Ohio – April 28, 2020 – Protech Home Medical Corp. (the “Company” or “Protech”) (TSXV: PTQ), a healthcare services company with operations in the U.S., is pleased to announce preliminary financial results for the second quarter of 2020, ending March 31, 2020.
Preliminary Financial Results - Quarter Ended March 31, 2020
· | Revenue in the range of $24.0 million to $24.3 million | |
· | Adjusted EBITDA in the range of $4.7 million to $5.0 million | |
· | Net Income in the range of $1.5 million to $1.7 million | |
· | The Company expects similar gross margins as the quarter ended December 31, 2019 |
“These preliminary results are truly a testament to our employees, whom have shown extraordinary resilience in the face of the COVID-19 pandemic,” commented Greg Crawford, CEO, and Chairman of Protech. “I would like to personally thank each and every one of them for their continued hard work and dedication, I could not be prouder. Although we do not normally provide preliminary results, and do not intend to moving forward, we felt that giving our shareholders a more real time update would assist in better understanding the current state of our business during this unusual period of time. We look forward to sharing our full financial results and commentary in the second half of May.”
“Furthermore, I wanted to take this opportunity to comment on the PPP loan received per our April 20th press release. Protech applied for these funds to ensure that our 375+ incredibly hard-working employees, our key asset, is protected during these uncertain times. We believe it is our duty to protect their job security as best we can in the face of the COVID-19 pandemic. This loan also helped us prepare and respond to the pandemic by ensuring that our supply chain continues to operate smoothly as Protech is on the front lines of the United States healthcare industry serving over 85,000 in home respiratory patients. This pandemic has underscored the importance of having readily available in-home monitoring and disease management services in the United States. We are assisting in alleviating the strain caused on the traditional healthcare system by helping to move patients out of the hospital and into the home to ensure hospital beds are more readily available when needed.”
Protech provides home delivery and efficient online set-up of equipment for, primarily, chronic conditions. The Company operates out of 42 locations in 10 states with over 17,000 referring physicians and approximately 85,000 current active patients.
ABOUT PROTECH HOME MEDICAL
The Company provides in-home monitoring and disease management services including end-to-end respiratory solutions for patients in the United States healthcare market. It seeks to continue to expand its offerings to include the management of several chronic disease states focusing on patients with heart or pulmonary disease, sleep disorders, reduced mobility and other chronic health conditions. The primary business objective of the Company is to create shareholder value by offering a broader range of services to patients in need of in-home monitoring and chronic disease management. The Company’s organic growth strategy is to increase annual revenue per patient by offering multiple services to the same patient, consolidating the patient’s services and making life easier for the patient.
Forward-Looking Statements
Certain statements contained in this press release constitute "forward-looking information" as such term is defined in applicable Canadian securities legislation. The words "may", "would", "could", "should", "potential", "will", "seek", "intend", "plan", "anticipate", "believe", "estimate", "expect" and similar expressions as they relate to the Company, including expected results for the quarter; and how the Company plans to spend the payments it received under the PPP loan; are intended to identify forward-looking information. All statements other than statements of historical fact may be forward-looking information. Such statements reflect the Company's current views and intentions with respect to future events, and current information available to the Company, and are subject to certain risks, uncertainties and assumptions, including, without limitation: the Company’s ability to source additional equipment and products to prepare and respond to the anticipated demand related to the pandemic. Many factors could cause the actual results, performance or achievements that may be expressed or implied by such forward-looking information to vary from those described herein should one or more of these risks or uncertainties materialize. Examples of such risk factors include, without limitation: credit; market (including equity, commodity, foreign exchange and interest rate); liquidity; operational (including technology and infrastructure); reputational; insurance; strategic; regulatory; legal; environmental; capital adequacy; the general business and economic conditions in the regions in which the Company operates; the ability of the Company to execute on key priorities, including the successful completion of acquisitions, business retention, and strategic plans and to attract, develop and retain key executives; difficulty integrating newly acquired businesses; the ability to implement business strategies and pursue business opportunities; low profit market segments; disruptions in or attacks (including cyber-attacks) on the Company's information technology, internet, network access or other voice or data communications systems or services; the evolution of various types of fraud or other criminal behavior to which the Company is exposed; the failure of third parties to comply with their obligations to the Company or its affiliates; the impact of new and changes to, or application of, current laws and regulations; decline of reimbursement rates; dependence on few payors; possible new drug discoveries; a novel business model; dependence on key suppliers; granting of permits and licenses in a highly regulated business; the overall difficult litigation environment, including in the U.S.; increased competition; changes in foreign currency rates; increased funding costs and market volatility due to market illiquidity and competition for funding; the availability of funds and resources to pursue operations; critical accounting estimates and changes to accounting standards, policies, and methods used by the Company; the occurrence of natural and unnatural catastrophic events and claims resulting from such events; and risks related to COVID-19 including various recommendations, orders and measures of governmental authorities to try to limit the pandemic, including travel restrictions, border closures, non-essential business closures, quarantines, self-isolations, shelters-in-place and social distancing, disruptions to markets, economic activity, financing, supply chains and sales channels, and a deterioration of general economic conditions including a possible national or global recession; as well as those risk factors discussed or referred to in the Company’s disclosure documents filed with the securities regulatory authorities in certain provinces of Canada and available at www.sedar.com. Should any factor affect the Company in an unexpected manner, or should assumptions underlying the forward-looking information prove incorrect, the actual results or events may differ materially from the results or events predicted. Any such forward-looking information is expressly qualified in its entirety by this cautionary statement. Moreover, the Company does not assume responsibility for the accuracy or completeness of such forward-looking information. The forward-looking information included in this press release is made as of the date of this press release and the Company undertakes no obligation to publicly update or revise any forward-looking information, other than as required by applicable law.
Unless otherwise specified, all dollar amounts in this press release are expressed in Canadian dollars.
Non-GAAP Measures
This press release refers to “Adjusted EBITDA” which is a non-GAAP and non-IFRS financial measure that does not have a standardized meaning prescribed by GAAP or IFRS. The Company’s presentation of this financial measure may not be comparable to similarly titled measures used by other companies. This financial measure is intended to provide additional information to investors concerning the Company’s performance. Adjusted EBITDA is defined as EBITDA excluding stock-based compensation. Adjusted EBITDA is a non-IFRS measure the Company uses as an indicator of financial health and excludes several items which may be useful in the consideration of the financial condition of the Company, including interest expense, income taxes, depreciation, amortization, stock-based compensation, goodwill impairment and change in fair value of debentures and financial derivatives. The following table shows our non-IFRS measure (Adjusted EBITDA) reconciled to our net income for the indicated period:
Three months ended
March 31, 2020 |
||||
Net income | $1.5 – 1.7 | |||
Less: Loss from discontinued operations | (0.4) – (0.4) | |||
Net income from continuing operations | 1.9 – 2.1 | |||
Add back: | ||||
Depreciation and amortization | 4.6 – 4.7 | |||
Interest expense, net | 0.6 – 0.6 | |||
Change in fair value of debentures and derivative | (2.5) – (2.5) | |||
Provision (benefit) for income taxes | 0.0 – 0.1 | |||
EBITDA | $4.6 – 4.9 | |||
Stock-based compensation | 0.1 – 0.1 | |||
Adjusted EBITDA | $4.7 – 5.0 |
Preliminary Financial Metrics
This press release contains certain pre-released second quarter financial metrics. The second quarter financial metrics contained in this press release are preliminary and represent the most current information available to the Company's management, as financial closing procedures for the three and six months ended March 31, 2020 are not yet complete. The Company's actual consolidated financial statements for such period may result in material changes to the financial metrics summarized in this press release (including by any one financial metric, or all of the financial metrics, being below or
above the figures indicated) as a result of the completion of normal quarter end accounting procedures and adjustments, and also what one might expect to be in the final consolidated financial statements based on the financial metrics summarized in this press release. Although the Company believes the expectations reflected in this press release are based upon reasonable assumptions, the Company can give no assurance that actual results will not differ materially from these expectations.
For further information please visit our website at www.protechhomemedical.com, or contact:
Gregory Crawford
Chief Executive Officer
Protech Home Medical Corp.
859-300-6455
investorinfo@myphm.com
Investor Relations:
Oak Hill Financial Inc.
Jonathan L. Robinson CFA
416-669-1001
jrobinson@oakhillfinancial.ca
Neither the TSX Venture Exchange nor its Regulation Services Provider (as that term is defined in the policies of the TSX Venture Exchange) accepts responsibility for the adequacy or accuracy of this release.
Exhibit 99.29
Protech Home Medical Announces DATE AND TIME
FOR Q2 2020 CONFERENCE CALL and audio webcast
Cincinnati, Ohio – May 7, 2020 – Protech Home Medical Corp. (the “Company”) (TSXV: PTQ), a healthcare services company with operations in the U.S., today announced that it will host its Q2 2020 earnings conference call and audio webcast on Wednesday, May 20, 2020 at 10:00 a.m. (EDT).
Conference Call Details:
Wednesday, May 20, 2020 at 10:00 a.m. (EDT).
Canada/US Toll Free: | 1 (800) 319 4610 |
International: | 1 (604) 638 5340 |
Audio Webcast Details:
The live audio webcast can be found on the investor section of the Company’s website through the following link:
https://www.protechhomemedical.com/conference_calls.php#
“I am very pleased to offer current and future interested participants an audio webcast option, along with the standard telephone dial-in for our Q2 2020 earnings call and subsequent quarters,” said CEO and Chairman Greg Crawford. “We continue to look for ways to enhance shareholder engagement and believe this option will create greater accessibility to our quarterly earnings calls.”
ABOUT PROTECH HOME MEDICAL
The Company provides in-home monitoring and disease management services including end-to-end respiratory solutions for patients in the United States healthcare market. It seeks to continue to expand its offerings to include the management of several chronic disease states focusing on patients with heart or pulmonary disease, sleep disorders, reduced mobility and other chronic health conditions. The primary business objective of the Company is to create shareholder value by offering a broader range of services to patients in need of in-home monitoring and chronic disease management. The Company’s organic growth strategy is to increase annual revenue per patient by offering multiple services to the same patient, consolidating the patient’s services and making life easier for the patient.
Neither the TSX Venture Exchange nor its Regulation Services Provider (as that term is defined in the policies of the TSX Venture Exchange) accepts responsibility for the adequacy or accuracy of this release.
For further information please visit our website at www.protechhomemedical.com, or contact:
Cole Stevens
VP of Investor Relations
Protech Home Medical Corp.
859-300-6455
cole.stevens@myphm.com
Exhibit 99.30
PROTECH HOME MEDICAL REPORTS RECORD SECOND QUARTER FISCAL 2020 FINANCIAL RESULTS
POSTS REVENUE GROWTH OF 16% AND ADJUSTED EBITDA GROWTH OF 30%
Cincinnati, Ohio – May 19, 2020 – Protech Home Medical Corp. (“Protech” or the “Company”) (TSXV: PTQ), a healthcare services company with operations in the U.S., today announced its second quarter fiscal 2020 financial results and operational highlights for the period ended March 31, 2020.
Protech will host its Quarterly Earnings Conference Call on Wednesday, May 20, 2020 at 10:00 a.m. (EDT). The dial-in number is 1 (800) 319-4610 or 1 (604) 638-5340.
COVID-19 Update:
§ | Protech was deemed an essential business by the U.S. government and has operated effectively during the COVID-19 pandemic serving our over 85,000 active patients with exceptional service while managing increased demand from over 17,000 referring physicians. | |
§ | The Company has taken the necessary steps to ensure the health and safety of our employees by providing them with the appropriate personal protective equipment for patient-facing employees. | |
§ | The Company’s supply chain for critical equipment has remained strong, and we continued to opportunistically build inventory to meet the increases in demand, particularly for ventilators and home oxygen equipment. | |
§ | The Company has assisted in relieving the strain placed on the traditional healthcare system by helping to transfer non-COVID-19 related patients out of the hospital system and into the home, thereby freeing up beds to manage the large influx of patients that have contracted the virus. | |
§ | With strong liquidity, a resilient business model, and ample tailwinds accelerating growth in the home healthcare industry, the Company is confident in its ability to execute on its short and long-term business objectives. |
Financial Highlights:
§ | Revenue for Q2 2020 was $24.1 million compared to $20.8 million for Q2 2019, representing a 16% increase in revenue year-over-year and 4% increase quarter over quarter; most of which was organic. | |
§ | Adjusted EBITDA for Q2 2020 was $4.9 million (20.4% margin), compared to $3.8 million (18.2% margin) for Q2 2019, representing a 30% increase year-over-year. | |
§ | Gross margin in Q2 2020 was 73%, up from 71% in Q2 2019 as a result of ongoing margin enhancement efforts, including patient intake and distribution optimization. | |
§ | Net income for Q2 2020 was $1.6 million, compared to a loss of $0.5 million for Q2 2019, representing a 402% increase year-over-year. | |
§ | Cash flow from operations was $6.0 million for the six months ended March 31, 2020 compared to $4.1 million for the six months ended March 31, 2019. | |
§ | The Company had $6.2 million of cash on hand as at March 31, 2020, compared to $12.8 million as of fiscal year ended September 2019. The uses of cash for the six month period ended March 31, 2020 is approximately broken down as follows; $4.3 million related to acquisitions, $1 million towards net paydown of equipment leases and about $1.4 million towards working capital, which includes a significant increase in Inventory to plan, prepare and respond to the pandemic. |
Operational Highlights:
§ | The Company’s customer base increased 28% year-over-year from 31,464 unique patients served in Q2 2019 to 40,372 unique patients in Q2 2020. | |
§ | Through the Company’s continued use of technology and centralized intake processes, respiratory resupply set-ups and/or deliveries increased to 13,980 for the three months ended March 31, 2020, compared to 11,641 for the same period ended March 31, 2019, an increase of 20%. | |
§ | Compared to Q2 2019, resupply set-ups increased by 20% and total set-up/deliveries increased by 24%. | |
§ | Compared to 51,676 unique set-ups/deliveries in Q2 2019, the Company completed 63,956 unique set-ups/deliveries in Q2 2020, an increase of 24%. |
§ | The Company continues to expand its sales reach across ten U.S. states by the addition of experienced sales personnel. | |
§ | The Company has completed the integration of its two most recent acquisitions, Acadia Medical and Cooley Medical, and has started to realize synergies and other benefits from the integration. |
Subsequent Events to the three months ended March 31, 2020:
§ | The Company received over $7.5 million of payments related to two separate provisions of the U.S. Coronavirus Aid, Relief and Economic Security (CARES) Act, as announced by the Company on April 20, 2020. | |
§ | CMS, the Centers for Medicare and Medicaid Services, has removed non-invasive ventilators from the 2021 Competitive Bidding Program, as announced by the Company on April 13, 2020. The removal is designed to ensure greater patient access for at-home ventilator therapy, which represents 17% of the Company’s revenue as of fiscal year end 2019. |
Management Commentary:
“These second quarter fiscal 2020 results showcase the resiliency of our business model, and I could not be prouder of our whole team,” said CEO and Chairman Greg Crawford. “In the midst of the COVID-19 pandemic, the emphasis on the need for in-home healthcare has been magnified, and robust industry tailwinds have developed as a result. We believe this pandemic has underscored the importance of Protech’s mission going into the future, and as a dynamic home healthcare provider, we are ready to seize on these industry forces. These financial results are affirmation of the strength and resilience of our operations during this crisis, as we continue to serve the escalating needs of our patients and of our referring physicians while ensuring the protection of our frontline employees.
As these results illustrate, we have continued to demonstrate exceptional revenue and Adjusted EBITDA growth, and I am particularly pleased with the organic growth we are seeing. With an extremely healthy balance sheet, continued margin expansion and improving cash flows, our focus for 2020 is to build on organic growth initiatives and be ready to pull the trigger in the event the right acquisition at the right consideration presents itself. As always, we will remain patient as it relates to our acquisition approach. I’d like to thank the entire Protech team for their tireless efforts and stakeholders for all of their continued support.”
Chief Financial Officer, Hardik Mehta added, “We are extremely pleased that our Adjusted EBITDA margin has breached the 20% level and are confident in this favorable trend. We continue to significantly outpace industry growth rates from a top-line perspective and continue to focus our attention on growing scale through both organic and inorganic opportunities. Additionally, we remain laser focused on improving profitability across the business through our stated three-pronged growth strategy. The removal of non-invasive ventilators from the 2021 Competitive Bidding Program provides us with an additional level of comfort as it relates to the margin outlook for that respective piece of equipment. Lastly, we anticipate more favorable deal terms on the acquisition front to become available as a result of COVID-19, and as Greg mentioned, we will not hesitate to pull the trigger when appropriate.”
The financial statements of the Company for the three and six months ended March 31, 2020 and 2019 and accompanying Management Discussion & Analysis (MD&A) are available at www.sedar.com.
ABOUT PROTECH HOME MEDICAL CORP.
The Company provides in-home monitoring and disease management services including end-to-end respiratory solutions for patients in the United States healthcare market. It seeks to continue to expand its offerings to include the management of several chronic disease states focusing on patients with heart or pulmonary disease, sleep disorders, reduced mobility and other chronic health conditions. The primary business objective of the Company is to create shareholder value by offering a broader range of services to patients in need of in-home monitoring and chronic disease management. The Company’s organic growth strategy is to increase annual revenue per patient by offering multiple services to the same patient, consolidating the patient’s services and making life easier for the patient.
Forward-Looking Statements
Certain statements contained in this press release constitute "forward-looking information" as such term is defined in applicable Canadian securities legislation. The words "may", "would", "could", "should", "potential", "will", "seek", "intend", "plan", "anticipate", "believe", "estimate", "expect" and similar expressions as they relate to the Company, including: the Company being confident in its Adjusted EBITDA margin trend; and anticipating more favorable deal terms for acquisitions, and potentially completing acquisitions; are intended to identify forward-looking information. All statements other than statements of historical fact may be forward-looking information. Such statements reflect the Company's current views and intentions with respect to future events, and current information available to the Company, and are subject to certain risks, uncertainties and assumptions, including, without limitation: the Company successfully identifying, negotiating and completing one or more acquisitions, including conditions precedent for such acquisitions being satisfied; and current financial trends remaining at or above current levels in respect of anticipations for Adjusted EBITDA margin. Many factors could cause the actual results, performance or achievements that may be expressed or implied by such forward-looking information to vary from those described herein should one or more of these risks or uncertainties materialize. Examples of such risk factors include, without limitation: credit; market (including equity, commodity, foreign exchange and interest rate); liquidity; operational (including technology and infrastructure); reputational; insurance; strategic; regulatory; legal; environmental; capital adequacy; the general business and economic conditions in the regions in which the Company operates; the ability of the Company to execute on key priorities, including the successful completion of acquisitions, business retention, and strategic plans and to attract, develop and retain key executives; difficulty integrating newly acquired businesses; the ability to implement business strategies and pursue business opportunities; low profit market segments; disruptions in or attacks (including cyber-attacks) on the Company's information technology, internet, network access or other voice or data communications systems or services; the evolution of various types of fraud or other criminal behavior to which the Company is exposed; the failure of third parties to comply with their obligations to the Company or its affiliates; the impact of new and changes to, or application of, current laws and regulations; decline of reimbursement rates; dependence on few payors; possible new drug discoveries; a novel business model; dependence on key suppliers; granting of permits and licenses in a highly regulated business; the overall difficult litigation environment, including in the U.S.; increased competition; changes in foreign currency rates; increased funding costs and market volatility due to market illiquidity and competition for funding; the availability of funds and resources to pursue operations; critical accounting estimates and changes to accounting standards, policies, and methods used by the Company; the occurrence of natural and unnatural catastrophic events and claims resulting from such events; and risks related to COVID-19 including various recommendations, orders and measures of governmental authorities to try to limit the pandemic, including travel restrictions, border closures, non-essential business closures, quarantines, self-isolations, shelters-in-place and social distancing, disruptions to markets, economic activity, financing, supply chains and sales channels, and a deterioration of general economic conditions including a possible national or global recession; as well as those risk factors discussed or referred to in the Company’s disclosure documents filed with the securities regulatory authorities in certain provinces of Canada and available at www.sedar.com. Should any factor affect the Company in an unexpected manner, or should assumptions underlying the forward-looking information prove incorrect, the actual results or events may differ materially from the results or events predicted. Any such forward-looking information is expressly qualified in its entirety by this cautionary statement. Moreover, the Company does not assume responsibility for the accuracy or completeness of such forward-looking information. The forward-looking information included in this press release is made as of the date of this press release and the Company undertakes no obligation to publicly update or revise any forward-looking information, other than as required by applicable law.
Unless otherwise specified, all dollar amounts in this press release are expressed in Canadian dollars.
Non-GAAP Measures
This press release refers to “Adjusted EBITDA” which is a non-GAAP and non-IFRS financial measure that does not have a standardized meaning prescribed by GAAP or IFRS. The Company’s presentation of this financial measure may not be comparable to similarly titled measures used by other companies. This financial measure is intended to provide additional information to investors concerning the Company’s performance. Adjusted EBITDA is defined as EBITDA excluding stock-based compensation. Adjusted EBITDA is a Non-IFRS measure the Company uses as an indicator of financial health and excludes several items which may be useful in the consideration of the financial condition of the Company, including interest expense, income taxes, depreciation, amortization, stock-based compensation, goodwill impairment and change in fair value of debentures and financial derivatives. The following table shows our Non-IFRS measure (Adjusted EBITDA) reconciled to our net income for the indicated periods:
Three months
ended March 31, 2020 |
Three months
ended March 31, 2019 |
Six months
ended March 31, 2020 |
Six months
ended March 31, 2019 |
|||||||||||||
Net income (loss) from continuing operations | $ | 2,056 | $ | (591 | ) | $ | 299 | $ | (983 | ) | ||||||
Add back: | ||||||||||||||||
Depreciation and amortization | 4,662 | 3,004 | 9,452 | 6,322 | ||||||||||||
Interest expense, net | 620 | 764 | 1,224 | 1,160 | ||||||||||||
Change in fair value of debentures and derivative | (2,549 | ) | 96 | (1,814 | ) | 28 | ||||||||||
Provision for income taxes | 44 | 163 | 44 | 105 | ||||||||||||
EBITDA | 4,833 | 3,436 | 9,205 | 6,632 | ||||||||||||
Stock-based compensation | 92 | 361 | 134 | 891 | ||||||||||||
Adjusted EBITDA | $ | 4,925 | $ | 3,797 | $ | 9,339 | $ | 7,523 |
Management uses this non- IFRS measure as a key metric in the evaluation of the Company’s performance and the consolidated financial results. The Company believes this non- IFRS measure is useful to investors in their assessment of the operating performance and the valuation of the Company. In addition, this non- IFRS measure addresses questions the Company routinely receives from analysts and investors and, in order to assure that all investors have access to similar data, the Company has determined that it is appropriate to make this data available to all investors. However, non- IFRS financial measures are not prepared in accordance with IFRS, and the information is not necessarily comparable to other companies and should be considered as a supplement to, not a substitute for, or superior to, the corresponding measures calculated in accordance with IFRS.
Neither the TSX Venture Exchange nor its Regulation Services Provider (as that term is defined in the policies of the TSX Venture Exchange) accepts responsibility for the adequacy or accuracy of this release.
For further information please visit our website at www.protechhomemedical.com, or contact:
Cole Stevens
VP of Investor Relations
Protech Home Medical Corp.
859-300-6455
cole.stevens@myphm.com
Gregory Crawford
Chief Executive Officer
Protech Home Medical Corp.
859-300-6455
investorinfo@myphm.com
Exhibit 99.31
2nd Quarter |
|
Management’s Discussion and Analysis | |
For the Three and Six Months Ended March 31, 2020 | Protech Home Medical Corp. |
|
MANAGEMENT’S DISCUSSION AND ANALYSIS
March 31, 2020 and 2019 (Dollar amounts expressed in thousands of Canadian Dollars) |
The following Management’s Discussion and Analysis (“MD&A”) of the financial condition and results of operations of Protech Home Medical Corp. (“Protech” or the “Company”), prepared as of February 26, 2020 and should be read in conjunction with the consolidated financial statements for the quarter ended March 31, 2020, including the notes therein. The consolidated financial statements have been prepared in accordance with International Financial Reporting Standards (“IFRS”). Unless otherwise specified, all financial data is presented in Canadian dollars. The words “we”, “our”, “us”, “Company”, and “Protech” refer to Protech Home Medical Corp and/or the management and employees of the Company.
Additional information relevant to the Company is available for review on SEDAR at www.sedar.com.
Table of Contents
Caution Regarding Forward-Looking Statements | Page 2 |
Selected Quarterly Information | Page 3 |
About Our Business and Operating Results | Pages 3 – 6 |
Financial Position | Pages 7 – 8 |
Accounting and Disclosure Matters | Pages 8 – 11 |
Financial Instruments and Risk Management | Pages 11 – 12 |
Risk Factors | Pages 12 – 17 |
CAUTION REGARDING FORWARD-LOOKING STATEMENTS
Information included or incorporated by reference in this report may contain forward-looking statements. This information may involve known and unknown risks, uncertainties, and other factors which may cause our actual results, performance, or achievements to be materially different from the future results, performance, or achievements expressed or implied by any forward-looking statements. Forward-looking statements, which involve assumptions and describe our future, strategies, and expectations, are generally identifiable by use of the words “may,” “will,” “should,” “expect,” “anticipate,” “estimate,” “believe,” “plan,” “intend” or “project” or the negative of these words or other variations on these words or comparable terminology. Readers are cautioned regarding statements discussing profitability; growth strategies; anticipated trends in our industry; our future financing plans; and our anticipated needs for working capital. Actual events or results may differ materially from those discussed in forward- looking statements. There can be no assurance that the forward-looking statements contained in this report will in fact occur. The Company bases its forward-looking statements on information currently available to it and assumes no obligation to update them.
THE FORWARD-LOOKING INFORMATION CONTAINED IN THIS MD&A PRESENTS THE EXPECTATIONS OF THE COMPANY AS OF THE DATE OF THIS MD&A AND, ACCORDINGLY, IS SUBJECT TO CHANGE AFTER SUCH DATE. READERS SHOULD NOT PLACE UNDUE IMPORTANCE ON FORWARD-LOOKING INFORMATION AND SHOULD NOT RELY UPON THIS INFORMATION AS OF ANY OTHER DATE. WHILE THE COMPANY MAY ELECT TO, THE COMPANY DOES NOT UNDERTAKE TO UPDATE THIS INFORMATION AT ANY PARTICULAR TIME EXCEPT AS REQUIRED BY APPLICABLE SECURITIES LEGISLATION.
Page | 2
|
MANAGEMENT’S DISCUSSION AND ANALYSIS March 31, 2020 (Tabular dollar amounts expressed in thousands of Canadian Dollars) |
INTERIM MD&A - QUARTERLY HIGHLIGHTS
On July 29, 2019, the Company sold all the assets of one of its subsidiaries, Patient Home Monitoring, Inc. The condensed consolidated financial statements and the notes reflect Patient Home Monitoring, Inc. as a discontinued operation. Prior year amounts have been reclassified in order to be comparable to the current year presentation.
- | Increased revenues by $3.3 million, or 16%, from the quarter ended March 31, 2019 |
- | Increased the number of equipment set-ups to 63,956 in the quarter ended March 31, 2020 from 51,676 in the quarter ended March 31, 2019, an increase of 24% |
- | Increased the number of respiratory resupply set-ups to 13,980 in the quarter ended March 31, 2020 from 11,641 in the quarter ended March 31, 2019, an increase of 20% |
- | Gross margin in the quarter ended March 31, 2020 was 73%, an increase from 71% in the prior year quarter |
- | Generated Adjusted EBITDA of $4,925,000, a 30% increase from the prior year quarter |
SELECTED INFORMATION
For the three months
ended March 31, 2020 |
For the three months
ended March 31, 2019 |
For the six months
ended March 31, 2020 |
For the six months
ended March 31, 2019 |
|||||||||||||
Number of patients serviced(1) | 40,372 | 31,464 | 63,891 | 52,858 | ||||||||||||
Number of equipment set-ups or deliveries | 63,956 | 51,676 | 126,955 | 102,619 | ||||||||||||
Respiratory resupply set-ups or deliveries | 13,980 | 11,641 | 27,419 | 22,920 | ||||||||||||
Adjusted EBITDA(2) | $ | 4,925 | $ | 3,791 | $ | 9,339 | $ | 7,523 |
(1) | The six-month periods do not equal the sum of the two respective three-month periods due to some patients being serviced in both three-month periods. |
(2) | Refer to page four for definition of Adjusted earnings before interest, taxes, depreciation, and amortization (“EBITDA”) |
The words “we”, “our”, “us”, “Company”, and “Protech” refer to Protech Home Medical Corp. and/or the management and employees of the Company.
ABOUT OUR BUSINESS
Protech business objective
The growth in the number of elderly patients in the US healthcare market is creating pressure to provide more efficient delivery systems. Healthcare providers, such as hospitals, physicians and pharmacies, are seeking partners that can offer a range of products and services that improve outcomes, reduce hospital readmissions and help control costs. Protech fills this need by delivering a growing number of specialized products and services to achieve these goals. Protech seeks to provide an ever- expanding line of products and services over larger geographic regions within the United States using several growth strategies.
Future Outlook
Protech expects to generate net profit and positive adjusted EBITDA, excluding IFRS treatment of non-cash items. Our top priority continues to be the generation of operational net profit, positive cash flow, and positive EBITDA in fiscal year 2020 and beyond. As we continue to expand in our existing markets, we plan to leverage our business platforms to enter new markets. As we continue to grow and achieve scale, the increasing cash generated from operations will be used to market our service and to gain market share. Our continued integration and rationalization, as well as our acquisitions, have given us a focus and path towards profitability at each business unit.
Going forward, we seek to find ways to continue to grow our customer base and penetrate these markets, while continuing to streamline our operational platform and generate positive cash flow and operational profits. We will continue to improve on operational efficiencies and call center management as they are key execution points in order to maintain our healthy gross margin while growing revenues via the cross selling of services to existing and acquired patients.
Page | 3
|
MANAGEMENT’S DISCUSSION AND ANALYSIS March 31, 2020 (Tabular dollar amounts expressed in thousands of Canadian Dollars) |
OPERATING RESULTS
Accounting policies and estimates
The consolidated financial statements for the quarter ended March 31, 2020 are prepared under International Financial Reporting Standards (“IFRS”) issued by the governing body of the International Accounting Standards Board (“IASB”). The preparation of financial statements in conformity with IFRS requires management to make estimates and assumptions. These estimates and assumptions affect the reported amounts of assets and liabilities, disclosures of contingent assets and liabilities, and the reported amounts of revenues and expenses for the period of consolidated financial statements.
IFRS accounting treatment
Management does not rely upon non-cash IFRS accounting treatment of certain items such as impairment of goodwill and intangible assets, changes in the fair value of financial derivatives, stock based compensation and amortization of intangible assets when planning, monitoring, and evaluating the Company’ s performance or in making financial decisions.
Non-IFRS measures
Throughout this MD&A, references are made to several measures which are believed to be meaningful in the assessment of the Company’s performance. These metrics are non-standard measures under IFRS and may not be identical to similar measures reported by other companies. Also, in the future, we may disclose different non- IFRS financial measures to help our investors more meaningfully evaluate and compare our future results of operations to our previously reported results of operations. Readers are cautioned that the disclosure of these items is meant to add to, and not replace, the discussion of financial results as determined in accordance with IFRS. The primary purpose of these non-IFRS measures is to provide supplemental information that may prove useful to investors who wish to consider the impact of certain non-cash or uncontrollable items on the Company’s operating performance.
EBITDA and Adjusted EBITDA
In calculating EBITDA and adjusted EBITDA certain items (mostly non-cash) are excluded from net income (loss) including interest, taxes, depreciation, amortization, change in fair value of debentures and derivative, stock-based compensation, and goodwill impairment charges. Set forth below are descriptions of the financial items that have been excluded from net income or loss to calculate EBITDA and Adjusted EBITDA and the material limitations associated with using these non-IFRS financial measures as compared to net income or loss.
- | Depreciation and amortization expense may be useful for investors to consider because they generally represent the wear and tear on our property and equipment used in our operations and amortization of intangibles valued in purchase accounting. However, we do not believe these charges necessarily reflect the current and ongoing cash charges related to our operating costs. |
- | The amount of interest expense we incur or interest income we generate may be useful for investors to consider and may result in current cash inflows or outflows. However, we do not consider the amount of interest expense or interest income to be a representative component of the day-to-day operating performance of our business. |
- | Change in fair value of debentures and derivative may be useful for investors to consider as it represents changes in the fair value of debentures, driven by changes in the trading price of the debentures. These changes are non- cash, as the settlement of the underlying debenture will be at the face value. |
- | Provision (benefit) for income taxes may be useful for investors to consider because it generally represents the taxes which may be payable for the period and the change in deferred income taxes and may reduce the amount of funds otherwise available for use. However, we do not consider the amount of income tax expense to be a representative component of the day-to-day operating performance of our business. |
- | Stock-based compensation may be useful for investors to consider because it is an estimate of the non-cash component of compensation received by the Company’s directors, officers, employees, and consultants. However, stock-based compensation is being excluded from the Company’ s operating expenses because the decisions which gave rise to these expenses were not made to increase revenue in a particular period but were made for the Company’ s long-term benefit over multiple periods. While strategic decisions, such as those to issue stock-based awards are made to further the Company’ s long-term strategic objectives and do impact the Company’s earnings under IFRS, these items affect multiple periods and management is not able to change or affect these items within any period. |
Management uses both IFRS and non-IFRS measures when planning, monitoring, and evaluating the Company’s performance.
The following table of adjusted EBITDA show our IFRS measures reconciled to EBITDA (non-IFRS measure) for the indicated periods. The table of net (loss) income is also measured based on IFRS. Both the tables are shown net of discontinued operations. Discontinued operations are comprised of the earnings after tax of discontinued operations until divestiture and the gain or loss after tax on sale, less costs to sell.
Page | 4
|
MANAGEMENT’S DISCUSSION AND ANALYSIS March 31, 2020 (Tabular dollar amounts expressed in thousands of Canadian Dollars) |
Three
months ended March 31, 2020 |
Three
months ended March 31, 2019 |
Six months
ended March 31, 2020 |
Six months
ended March 31, 2019 |
|||||||||||||
Net income (loss) from continuing operations | $ | 2,056 | $ | (591 | ) | $ | 299 | $ | (983 | ) | ||||||
Add back: | ||||||||||||||||
Depreciation and amortization | 4,662 | 3,004 | 9,452 | 6,322 | ||||||||||||
Interest expense, net | 620 | 764 | 1,224 | 1,160 | ||||||||||||
Change in fair value of debentures and derivative | (2,549 | ) | 96 | (1,814 | ) | 28 | ||||||||||
Provision for income taxes | 44 | 163 | 44 | 105 | ||||||||||||
EBITDA | 4,833 | 3,436 | 9,205 | 6,632 | ||||||||||||
Stock-based compensation | 92 | 361 | 134 | 891 | ||||||||||||
Adjusted EBITDA | $ | 4,925 | $ | 3,797 | $ | 9,339 | $ | 7,523 |
Three
months ended March 31, 2020 |
Three
months ended March 31, 2019 |
Six months
ended March 31, 2020 |
Six months
ended March 31, 2019 |
|||||||||||||
Revenues | $ | 24,101 | $ | 20,824 | $ | 46,870 | $ | 41,333 | ||||||||
Cost of revenue | 6,502 | 6,082 | 12.531 | 12,313 | ||||||||||||
Gross profit | 17,599 | 14,742 | 34,339 | 29,021 | ||||||||||||
Gross margin % | 73 | % | 71 | % | 73 | % | 70 | % | ||||||||
Selling, general, and administrative | 12,740 | 10,780 | 25,292 | 21,323 | ||||||||||||
Depreciation | 4,495 | 2,853 | 9,046 | 6,020 | ||||||||||||
Amortization of intangible assets | 167 | 151 | 406 | 302 | ||||||||||||
Stock-based compensation | 92 | 361 | 134 | 891 | ||||||||||||
Gain on disposals of property and equipment | (11 | ) | - | (91 | ) | (2 | ) | |||||||||
Other expense (income) | (55 | ) | 165 | (200 | ) | 171 | ||||||||||
Interest expense, net | 620 | 764 | 1,224 | 1,161 | ||||||||||||
Change in fair value of debentures and derivative | (2,549 | ) | 96 | (1,814 | ) | 28 | ||||||||||
Provision for income taxes | 44 | 163 | 44 | 105 | ||||||||||||
Net income (loss) from continuing operations | 2,056 | (591 | ) | 299 | (977 | ) | ||||||||||
Income from discontinued operations | (416 | ) | 61 | (416 | ) | 582 | ||||||||||
Net income (loss) | $ | 1,640 | $ | (530 | ) | $ | (117 | ) | $ | (395 | ) | |||||
Income (loss) per share | ||||||||||||||||
Basic | $ | 0.02 | $ | (0.01 | ) | $ | (0.00 | ) | $ | (0.00 | ) | |||||
Diluted | $ | 0.02 | $ | (0.01 | ) | $ | (0.00 | ) | $ | (0.00 | ) |
Revenue
For the three months ended March 31, 2020, revenue totaled $24,101,000, an increase of $3,277,000, or 16%, from the same period in 2019. This increase is primarily due to the acquisitions of two businesses in the first quarter of fiscal year 2020. Organic growth and the higher Canadian dollar to US dollar exchange rate also contributed to the increase
For the six months ended March 31, 2020, revenue totaled $46,870,000, an increase of $5,537,000, or 13%, from the same period in 2019. This increase is primarily due to the acquisitions of two businesses in the first quarter of fiscal year 2020, with organic growth also contributing.
Gross profit
For the three months ended March 31, 2020 gross profit was $17,599,000, or 73% of revenues, as compared to $14,742,000, or 71% of revenues, during the same period in 2019. The gross margin % improvement during the period was primarily due to better inventory management to achieve better costs and a higher portion of rental revenues, which carry a higher gross margin percentage.
For the six months ended March 31, 2020 gross profit was $34,339,000, or 73% of revenues, as compared to $29,021,000, or 70% of revenues, during the same period in 2019. The gross margin % improvement during the period was primarily due to better inventory management to achieve better costs and a higher portion of rental revenues, which carry a higher gross margin percentage.
Page | 5
|
MANAGEMENT’S DISCUSSION AND ANALYSIS March 31, 2020 (Tabular dollar amounts expressed in thousands of Canadian Dollars) |
Selling, general, and administrative expense
For the three months ended March 31, 2020, total selling, general and administrative expenses were $12,740,000, an increase of $1,960,000 from the same period in 2019. The increase was primarily due to approximately $1,800,000 from the acquisitions of two businesses in the first quarter of 2020. Small increases in bad debt expense and a higher Canadian dollar to US dollar exchange rate were partially offset by lower facility costs due to the adoption of IFRS 16, Leases (see Note 2 to the condensed consolidated interim financial statements).
For the six months ended March 31, 2020, total selling, general and administrative expenses were $25,292,000, an increase of $3,969,000 from the same period in 2019. The increase was primarily due to approximately $3,500,000 from the acquisitions of two businesses in the first quarter of 2020. Increases in bad debt expense and payroll were partially offset by lower facility costs due to the adoption of IFRS 16, Leases (see Note 2 to the condensed consolidated interim financial statements).
Depreciation expense
Depreciation expense increased by $1,642,000 to $4,495,000 for the three months ended March 31, 2020. Approximately $600,000 was due to the acquisitions of two businesses in the first quarter of 2020, and approximately $500,000 was due to the adoption of IFRS 16, Leases (see Note 2 to the condensed consolidated interim financial statements). The remaining increase is primarily due to increased depreciation on monitoring equipment.
Depreciation expense increased by approximately $3,000,000 to $9,046,000 for the six months ended March 31, 2020. Approximately $1,000,000 was due to the two acquisitions of two businesses in the first quarter of 2020 ans approximately $900,000 was due to the adoption of IFRS 16, Leases (see Note 2 to the condensed consolidated interim financial statements). The remaining increase is due to increased depreciation on monitoring equipment.
Stock-based compensation
For the three and six months ended March 31, 2020, stock-based compensation was $92,000 and $134,000, respectively, compared to $361,000 and $891,000 in the respective periods of the prior year. The decline is due to options becoming fully vested during the year ended September 30, 2019.
Interest expense
Interest expense was $620,000 in the three months ended March 31, 2020, a $144,000 decrease from $764,000 for the three months ended March 31, 2019, as a result of no accretion expense in the three months ended March 31, 2020, partially offset by higher interest from the adoption of IFRS 16, Leases, and the higher principal amount and interest rate on the new debenture. The Company paid off the unsecured debentures of $8.625 million bearing an interest rate of 7.5% in early May 2019. The Company issued new debentures on March 7, 2019 for $15,000,000, bearing an interest rate of 8.0%.
Interest expense was $1,224,000 in the six months ended March 31, 2020, a $63,000 increase from $1,161,000 for the six months ended March 31, 2019, as a result of higher interest from the adoption of IFRS 16, Leases, and the higher principal amount and interest rate on the new debenture. The Company paid off the unsecured debentures of $8.625 million bearing an interest rate of 7.5% in early May 2019. The Company issued new debentures on March 7, 2019 for $15,000,000, bearing an interest rate of 8.0%. This was partially offset by having no accretion expense in the six months ended March 31, 2020.
Change in fair value of debentures and derivative
For the three and six months ended March 31, 2020, the change in fair value of debentures and derivative was a gain of $2,549,000 and $1,814,000, respectively, and was due to the decrease in the trading price of the debenture. For the three and six months ended March 31, 2019, the change in fair value of debentures and derivative was a small loss as the result of changes in the fair value of outstanding warrants.
Page | 6
|
MANAGEMENT’S DISCUSSION AND ANALYSIS March 31, 2020 (Tabular dollar amounts expressed in thousands of Canadian Dollars) |
FINANCIAL POSITION
As at | As at | |||||||
March 31, 2020 | September 30, 2019 | |||||||
Cash | $ | 6,210 | $ | 12,855 | ||||
Accounts receivable | 15,047 | 12,390 | ||||||
Inventory | 7,808 | 4,738 | ||||||
Other current assets | 1,089 | 800 | ||||||
Total current assets | 30,154 | 30,783 | ||||||
Property and equipment | 26,024 | 19,496 | ||||||
Intangible and other assets | 8,533 | 4,886 | ||||||
Total assets | $ | 64,711 | $ | 55,165 | ||||
Total current liabilities, including current portion of lease liabilities | $ | 23,371 | $ | 18,969 | ||||
Long-term debt and other long-term liabilities | 20,117 | 17,047 | ||||||
Total liabilities | 43,488 | 36,016 | ||||||
Total shareholders’ equity | 21,223 | 19,149 | ||||||
Total liabilities and shareholders’ equity | $ | 64,711 | $ | 55,165 |
Liquidity
At March 31, 2020, the Company had cash on hand of $6,210,000. The Company’s approach in managing liquidity is to ensure, to the extent possible, that it will have enough liquidity to meet its liabilities as they come due by continuously monitoring actual and expected cash flows and monitoring financial market conditions for signs of weakness.
As of March 31, 2020, the Company faces no material liquidity risk and can meet all its current financial obligations as they become due and payable. The Company has $23,371,000 liabilities that are due within one year but has $30.154,000 of current assets to meet those obligations.
Subsequent to quarter end, in April 2020, the Company received over $7.5 million of payments related to the two separate provisions of the U.S. Coronavirus Aid, Relief and Economic Security (CARES) Act. One provision was to assist companies in maintaining their workforce and the second provision was to support healthcare providers.
Capital management
The Company’s shareholders’ equity totaled $21,2234,000 at March 31, 2020 and had debentures with a face amount of $15,000,000. Additionally, the Company had lease liabilities with a principal amount of $16,660,000.
The Company plans to raise capital, as necessary, to meet its needs and take advantage of perceived opportunities and, therefore, does not have a numeric target for its capital structure. Funds are primarily secured through debt instruments, equity capital raised by way of private placements and convertible notes. There can be no assurance that the Company will be able to continue raising capital in this manner.
Management reviews its capital management approach on an ongoing basis and believes that this approach, given the relative size of the Company, is reasonable.
The Company invests all capital that is surplus to its immediate operational needs in short-term, liquid and highly rated financial instruments, such as cash and short-term guarantee deposits, held with major Canadian and US financial institutions.
The Company had the following equity instruments outstanding at March 31, 2020 and March 31, 2019:
As at
March 31, 2020 (000’s) |
As at
September 30, 2019 (000’s) |
|||||||
Common shares | 83,685 | 83,589 | ||||||
Underwriter Options | 367 | 367 | ||||||
Warrants | 519 | 519 | ||||||
Options – employees and consultants | 11,587 | 11,759 |
Financing
Historically and currently, the Company has financed its operations primarily from cash flow from operations, leases liabilities, debentures, equity financing, and through the issuance of shares to acquire businesses. On March 7, 2019, the Company issued
$15,000,000 in 8.0% Convertible Unsecured Debentures due March 7, 2024, with interest payable semi-annually on June 30th and December 30th of each year. Each $1,000 debenture is convertible at the option of the holder into approximately 769.23 common shares. After three years, the Company can force conversion of the outstanding principal at conversion price of $1.30, if the daily volume weighted average price of the common shares exceeds $1.62/share for twenty consecutive trading days. The debenture agreement also allows for payment of cash in lieu of common shares upon exercise of conversion right by the holder, equivalent of the market price on the conversion date.
The above debenture contains multiple embedded derivatives including conversion right, forced conversion option and payment in lieu of common shares. The Company elected to value the convertible debentures in their entirety (including conversion right, forced conversion option and payment in lieu of common shares) to be subsequently measured at fair value through profit or loss (FVTPL). The fair value of the debenture as at March 31, 2020 was $14,696,000.
Page | 7
|
MANAGEMENT’S DISCUSSION AND ANALYSIS March 31, 2020 (Tabular dollar amounts expressed in thousands of Canadian Dollars) |
Commitments and Contingencies
From time to time, the Company is involved in various legal proceedings arising from the ordinary course of business, None of the matters in which the Company is currently involved, either individually, or in the aggregate, is expected to have a material adverse effect on the Company’s consolidated financial position, results of operations, or cash flows.
Quarterly Operating Results from continuing operations
A summary of quarterly results for the eight most recently completed quarters are as follows:
Quarter ended
March 31, 2020 |
Quarter
ended
December 31, 2019 |
Quarter
ended
September 30, 2019 |
Quarter ended
June 30, 2019 |
|||||||||||||
Revenue | $ | 24,101 | $ | 22,769 | $ | 19,470 | $ | 20,164 | ||||||||
Net income (loss) from continuing operations | 2,056 | (1,758 | ) | 4,400 | (12,564 | ) | ||||||||||
Net income (loss) per share – continuing operations | $ | 0.02 | $ | (0.02 | ) | $ | 0.05 | $ | (0.15 | ) |
Quarter ended
March 31, 2019 |
Quarter
ended
December 31, 2018 |
Quarter
ended
September 30, 2018 |
Quarter ended
June 30, 2018 |
|||||||||||||
Revenue | $ | 20,824 | $ | 20,509 | $ | 18,041 | $ | 18,468 | ||||||||
Net income (loss) from continuing operations | (591 | ) | (386 | ) | 679 | (1,590 | ) | |||||||||
Net income (loss) per share – continuing operations | $ | (0.01 | ) | $ | (0.00 | ) | $ | 0.01 | $ | (0.02 | ) |
Results of operations for the healthcare services market in which the Company operates show little seasonality from quarter to quarter.
Related party transactions
The Company has entered into six market rate leases for office, warehouse, and retail space with a rental Company affiliated with the Company’s Chief Executive Officer, the majority of which were entered into in 2015. The leases have a combined area of 74,520 square feet. Lease payments under these leases are approximately $68,000 per month, plus taxes, utilities and maintenance.
Payments of approximately $57,000 and $56,000 were made to members of the Board of Directors for three months ended March 31, 2020 and 2019, respectively. Payments of $124,000 and $113,000 were made to the board for the six months ended March 31, 2020 and 2019, respectively.
Key management personnel also participate in the Company’s share option program. The Company paid or accrued compensation to key management personnel the following:
Three
months ended March 31, 2020 |
Three
months ended March 31, 2019 |
Six months
ended March 31, 2020 |
Six months
ended March 31, 2019 |
|||||||||||||
Salaries and Benefits | $ | 264 | $ | 766 | $ | 523 | $ | 1,009 | ||||||||
Stock-based compensation | - | 229 | - | 562 | ||||||||||||
Total | $ | 264 | $ | 995 | $ | 523 | $ | 1,571 |
Off balance sheet arrangements
The Company has no material undisclosed off-balance sheet arrangements that have or are reasonably likely to have, a current or future effect on its results of operations or financial condition.
ACCOUNTING AND DISCLOSURE MATTERS
Financial reporting controls
The Company is not required to certify the design and evaluation of its disclosure controls and procedures and internal controls over financial reporting and has not completed such an evaluation.
Page | 8
|
MANAGEMENT’S DISCUSSION AND ANALYSIS March 31, 2020 (Tabular dollar amounts expressed in thousands of Canadian Dollars) |
There were no substantive changes in the Company’s disclosure controls and procedures and internal controls over financial reporting during the period ended March 31, 2020 that have materially affected, or are reasonably likely to materially affect, the Company’ s disclosure controls and procedures and internal controls over financial reporting.
Critical accounting estimates
The preparation of financial statements in conformity with IFRS requires management to make estimates and assumptions that affect the reported amounts of assets, liabilities, revenues and expenses and the disclosure of contingent assets and liabilities in the consolidated financial statements. We constantly evaluate these estimates and assumptions.
We base our estimates and assumptions on experience and other factors that are deemed reasonable under the circumstances. This involves varying degrees of judgment and uncertainty, thus the amounts currently reported in the consolidated financial statements could prove to be inaccurate in the future.
We consider the estimates and assumptions described in this section to be an important part in understanding the consolidated financial statements. These estimates and assumptions are subject to change, as they rely heavily on management’ s judgment and are based on factors that are inherently uncertain.
Revenue recognition
Revenue consists of net patient service revenue. Net patient service revenue is recognized at the time services are provided net of contractual adjustments based on an evaluation of expected collections resulting from the analysis of current and past due accounts, past collection experience in relation to amounts billed and other relevant information. Contractual adjustments result from the differences between the rates charged for services and reimbursements by government-sponsored healthcare programs and insurance companies for such services.
Accounts receivable
Accounts receivable are recorded at the time revenue is recognized and are presented on the balance sheet net of an allowance for uncollectible accounts. It is possible that our estimates of the allowance for uncollectible accounts could change, which could have a material impact on our operations and cash flows.
The Company will write-off receivables when the likelihood for collection is remote or and when the Company believes collection efforts have been fully exhausted and it does not intend to devote additional resources in attempting to collect.
Share Consolidation and New Stock Symbol
On December 31, 2018, the Company consolidated its common shares on the basis of one (1) new post-consolidation common share for every five (5) pre-consolidation common shares. The Consolidation affected shareholders uniformly, including holders of outstanding incentive stock options and warrants. Unless stated otherwise, all share and per share amounts have been restated retrospectively to reflect this share consolidation. The company began trading under the TSX Venture Exchange under the stock ticker symbol “PTQ” as of December 31, 2018.
Stock-based compensation
The Company accounts for stock-based compensation, including stock options and warrants, using the fair value method as prescribed by IFRS 2. Under this method, the fair value of stock options and warrants at the date of grant is amortized over the vesting period and the offsetting credit is recorded as an increase in contributed surplus. The Company accounts for forfeitures as they happen. For the three months ended March 31, 2020 and 2019, the Company recorded stock-based compensation expense of $92,000 and $361,000, respectively. For the six months ended March 31, 2020 and 2019, the Company recorded stock-based compensation expense of $134,000 and $891,000, respectively.
The fair value of the vested stock options has been charged to the statement of income (loss) and comprehensive income (loss) and credited to contributed surplus over the proper vesting period. Fair value for the options granted periods ended March 31, 2019 and 2017, used the Black-Scholes option pricing model calculated using the following assumptions:
For the six months ended
March 31, 2020 |
For the six months ended
March 31, 2019 |
|||||||
Share price | $ | 1.10 | $ | 0.63 | ||||
Risk-free interest rate | 1.64 | % | 2.24 | % | ||||
Expected volatility | 83.20 | % | 118.17 | % | ||||
Expected life of option | 4 years | 10 years | ||||||
Expected dividend yield | Nil | Nil |
Page | 9
|
MANAGEMENT’S DISCUSSION AND ANALYSIS March 31, 2020 (Tabular dollar amounts expressed in thousands of Canadian Dollars) |
Income taxes
The Company is subject to income taxes in numerous jurisdictions. Significant judgment is required in determining the provision for income taxes and the Company’s income tax provisions reflect management’s interpretation of country-specific tax law. There are many transactions and calculations for which the ultimate tax determination is uncertain during the ordinary course of business and may remain uncertain for several years after their occurrence. The Company recognizes assets and liabilities for taxation when it is probable that the relevant taxation authority will require the Company to receive or pay taxes.
Where the outcome of the determination of tax assets and liabilities is different from the amounts that were initially recorded, such differences will impact the current and deferred income taxes provision in the period in which such determination is made. Changes in tax law or changes in the way tax law is interpreted may also impact the Company’s effective tax rate as well as its business and operations.
Deferred income tax assets and liabilities are recognized for the future income tax consequences attributable to temporary differences between the financial statement carrying value of assets and liabilities and their respective income tax bases. Deferred income tax assets or liabilities are measured using enacted or substantively enacted income tax rates expected to apply to taxable income in the years in which those temporary differences are expected to be recovered or settled.
The calculation of current and deferred income taxes requires management to make estimates and assumptions and to exercise a certain amount of judgment concerning the carrying value of assets and liabilities. The current and deferred income tax assets and liabilities are also impacted by expectations about future operating results and the timing of reversal of temporary differences as well as possible audits of tax filings by regulatory agencies. Changes or differences in these estimates or assumptions may result in changes to the current and deferred tax assets and liabilities on the consolidated statements of financial position and a charge to or recovery of income tax expense.
Acquisition accounting
Accounting for business combinations requires the allocation of the Company’s purchase price to the various assets and liabilities of the acquired business at their respective fair values. The Company uses all available information to make these fair value determinations. In some instances, assumptions with respect to the timing and amount of future revenues and expenses associated with an asset or group of assets may be used to determine fair value. Actual timing and amount of net cash flows from revenues and expenses related to that asset over time may differ materially from those initial estimates, and if the timing is delayed significantly or if the net cash flows decline significantly, the asset could become impaired.
Discontinued operations
An operation is qualified as discontinued when it represents a separate major line of business and has been sold, or when the criteria for classification as an asset held for distribution have been met.
Discontinued operations are presented on the statement of income (loss) and comprehensive income (loss) for the periods reported, comprising the earnings after tax of discontinued operations until divestiture and the gain or loss after tax on sale or fair value measurement, less costs to sell.
Significant accounting judgments
The following are the critical judgments, apart from those involving estimations, that have been made in the process of applying the Company's accounting policies and that have the most significant effect on the amounts recognized in the consolidated financial statements.
Functional currency
Management has exercised judgment in selecting the functional currency of each of the entities that it consolidates based on the primary economic environment in which the entity operates and in reference to the various indicators including the currency that primarily influences or determines the selling prices of goods and services and the cost of production, including labor, material and other costs and the currency whose competitive forces and regulations mainly determine selling prices. The consolidated financial statements of the Company are presented in Canadian dollars, which is the parent company’s presentation currency but which differs from its functional currency, the US dollar, which was determined using managements assumption that the primary economic environment from which it will derive its revenues and the expenses incurred to generate those revenues is the US.
Segment reporting
Management has assessed the information that is provided to the chief operating decision maker and how the business is monitored and has exercised judgment in determining that there is only one operating segment.
Asset impairment and cash generating units
For purposes of the asset impairment testing, the Company identifies cash generating units as the smallest identifiable groups of assets that generate independent cash inflows. Impairment testing is performed on these groups of assets on an annual basis or when events or circumstances indicate that the cash generating unit may become impaired considering the assessed and projected recoverable values of the cash generating unit. The Company has elected to perform the annual impairment testing in the fourth quarters.
Page | 10
|
MANAGEMENT’S DISCUSSION AND ANALYSIS March 31, 2020 (Tabular dollar amounts expressed in thousands of Canadian Dollars) |
Valuation of derivative instruments
Management has exercised judgment in the determination of the fair value of the derivative instruments. Estimating fair value for the derivatives requires determining the most appropriate valuation model, which is dependent on the terms and conditions of the instrument. This estimate also requires the judgment in the determination of the most appropriate inputs to the valuation model including the expected life of the option or warrant, volatility and dividend yield and making assumptions about them.
Recognition of leases
Management has exercised judgment in the determination of whether a contract to rent equipment represents a financing lease. Using historical returns and other operational data management has determined that in cases where the Company is the lessor, no rental agreements represent financing leases.
Goodwill impairment
Management has evaluated the recoverable amount of cash generating units and applied judgment in the discount rate and other underlying assumptions used in impairment analysis of goodwill.
Business Acquisitions
On October 31, 2018, the Company, through one of its indirect wholly owned subsidiaries, entered into a purchase agreement to acquire 100% of the shares of Central Oxygen Inc., an Indiana company. Total consideration was $395,000 in cash and stock.
On October 31, 2018, the Company, through one of its indirect wholly owned subsidiaries, entered into a purchase agreement to acquire 100% of the shares of Riverside Medical Inc., a Tennessee company. Total consideration was $131,000 in cash.
Effective October 1, 2019, the Company, through one of its indirect wholly owned subsidiaries, entered into a purchase agreement to acquire 100% of the shares of Cooley Medical Equipment, Inc., a Kentucky company, Total consideration was
$3,089,000 in cash.
Effective December 1, 2019, the Company, through one of its indirect wholly owned subsidiaries, entered into a purchase agreement to acquire 100% of the shares of Acadia Medical Supply, Inc., a Maine company. Total consideration was $1,071,000 in cash.
FINANCIAL INSTRUMENTS AND RISK MANAGEMENT
Financial instrument risk exposure
The Company’ s activities expose it to a variety of financial risks: market risk (including price risk, currency risk and interest rate risk), credit risk and liquidity risk. These risks arise from the normal course of operations and all transactions are undertaken to support the Company’ s ability to continue as a going concern. Risk management is carried out by management under policies approved by the Board of Directors. Management identifies and evaluates the financial risks in co-operation with the Company’s operating units. The Company’s overall risk management program seeks to minimize potential adverse effects on the Company’s financial performance.
Credit risk
Credit risk is the risk that one party to a financial instrument will fail to discharge an obligation and cause the other party to incur a financial loss. Financial instruments that potentially subject the Company to credit risk are primarily cash and accounts receivable. Each subsidiary places its cash with one major financial institution. At times, the cash in the financial institution is temporarily in excess of the amount insured by the Federal Deposit Insurance Corporation. Substantially all accounts receivable are due under fee-for-service contracts from third party payors, such as insurance companies and government-sponsored healthcare programs, directly from patients or for rebates due from manufacturers. Receivables generally are collected within industry norms for third-party payors and from manufacturers. The Company continuously monitors collections from its clients and maintains an allowance for bad debts based upon any specific payor collection issues that are identified and historical experience.
The Company recorded bad debt expense of $1,984,000 and $1,322,000 for three months ended March 31, 2020 and 2019, respectively. As of March 31, 2020, no one customer represented more than 10% of outstanding accounts receivable.
Page | 11
|
MANAGEMENT’S DISCUSSION AND ANALYSIS March 31, 2020 (Tabular dollar amounts expressed in thousands of Canadian Dollars) |
Currency risk
Currency risk is the risk that the Company will be subject to foreign currency fluctuations in satisfying obligations related to its foreign activities.
The Company realizes virtually all of its sales and makes a significant amount of its purchases in US dollars. Consequently, assets and liabilities are exposed to foreign exchange fluctuations.
The Company monitors and forecasts the values of net foreign currency cash flow and statement of financial position exposures and from time to time could authorize the use of derivative financial instruments such as forward foreign exchange contracts to economically hedge a portion of foreign currency fluctuations.
Based on the above net exposure at March 31, 2020, a 10% depreciation or appreciation of the US dollar against the Canadian dollar would not result in a significant effect in net loss. The Company has not employed any currency hedging programs during the periods ended March 31, 2020 or 2019.
Liquidity risk
Liquidity risk is the risk that the Company will not be able to meet its financial obligations as they become due. The Company’s approach in managing liquidity is to ensure, to the extent possible, that it will have sufficient liquidity to meet its liabilities when due, under both normal conditions, by continuously monitoring actual and budgeted cash flows.
As of March 31, 2020, the Company faces no material liquidity risk and can meet all its current financial obligations as they become due and payable. The Company has $23,540,000 of liabilities that are due within one year. The Company has $27,002,000 of current assets to meet those obligations.
Interest rate risk
Interest rate risk is the risk that the future cash flows of a financial instrument will fluctuate because of changes in market interest rates. Interest rate risk is limited to potential decreases on the interest rate offered on cash and cash equivalents held with Chartered Canadian and registered US financial institutions. The Company considers this risk to be immaterial. The interest on the convertible notes is not subject to cash flow interest rate risk as these instruments bear interest at fixed rates.
RISK FACTORS
While it is impossible to identify all such risk factors, factors that could cause actual results to differ materially from those estimated by us include:
Market Price of the Company Shares
The Company Shares are listed and posted for trading on the TSX Venture Exchange. Securities of small-cap and healthcare companies have experienced substantial volatility in the past, often based on factors unrelated to the financial performance or prospects of the companies involved. These factors include macroeconomic developments in North America and globally, and market perceptions of the attractiveness of particular industries. The price of the Company Shares is also likely to be significantly affected by short-term changes in cost of goods, or in financial condition or results of operations. Other factors unrelated to the performance of the Company that may have an effect on the price of the Company Shares include the following: the extent of analytical coverage available to investors concerning the business of the Company may be limited if investment banks with research capabilities do not follow the Company securities; lessening in trading volume and general market interest in the Company’s securities may affect an investor’s ability to trade significant numbers of the Company Shares; the size of the Company’s public float may limit the ability of some institutions to invest in the Company’s securities; and a substantial decline in the price of the Company Shares that persists for a significant period of time could cause the Company’s securities, if listed on an exchange, to be delisted from such exchange, further reducing market liquidity.
As a result of any of these factors, the market price of the Company Shares at any given point in time may not accurately reflect the long-term value of the Company. Securities class-action litigation often has been brought against companies following periods of volatility in the market price of their securities. The Company may in the future be the target of similar litigation. Securities litigation could result in substantial costs and damages and divert management’s attention and resources.
Dilution
The Company will require additional funds in respect of the further development of the company through acquisition. If the Company raises funds by issuing additional equity securities, such financing will dilute the equity interests of its shareholders.
Future Sales of Shares by Existing Shareholders
Sales of the Company Shares in the public markets, or the potential for such sales, could decrease the trading price of the Company Shares and could impair The Company’s ability to raise capital through future sales of the Company Shares. The Company may from time to time have previously issued securities at an effective price per share which will be lower than the market price of the Company Shares. Accordingly, certain shareholders of The Company may have an investment profit in the Company Shares that they may seek to liquidate.
Page | 12
|
MANAGEMENT’S DISCUSSION AND ANALYSIS March 31, 2020 (Tabular dollar amounts expressed in thousands of Canadian Dollars) |
Limited History of Operations
The Company has a limited history of operations. There can be no assurance that the business of the Company and/or its subsidiaries will be successful and generate, or maintain, any profit.
Novel Business Model
Home monitoring of patients on anticoagulants is a relatively new business, making it difficult to predict market acceptance, development, expansion and direction. The home monitoring services to be provided by the Company represent a relatively new development in the U.S. healthcare industry. Accordingly, adoption by patients and physicians can require education, which can result in a lengthy sales cycle. The market may take time to develop. Physicians and/or patients may be slow to adopt new methods. The development of the Company’s home monitoring business will depend on many factors. These factors include: The Company’s ability to differentiate its services from those of its competitors; the extent and timing of the acceptance of the Company’s services as a replacement for, or supplement to, traditional methods of monitoring patients; the effectiveness of the Company’s sales and marketing and engagement efforts with customers and their health plan participants; the Company’s ability to provide quality customer service, as perceived by patients and physicians.
Because the monitoring business is evolving, the Company may not be able to anticipate and adapt to the developing market. Moreover, management cannot predict with certainty the future growth rate or the ultimate size of the market.
Reimbursement Rates May Decline
Reimbursement for services to be provided by the Company will come primarily from Medicare and private health insurance companies. The reimbursement rates offered are outside the control of the Company. Reimbursement rates in this area, and much of the U.S. health care market in general, have been subject to continual reductions as health insurers and governmental entities attempt to control health care costs. The extent and timing of any reduction in reimbursement rates cannot be predicted by the Company.
Reductions in reimbursement rates can have a material impact on the profitability of the Company’s operations. A reduction in reimbursement may be unrelated to any concurrent decline in the cost of operations, thereby resulting in reduced profitability. The Company’s costs of operations could increase, but the cost increases may not be passed on to customers because reimbursement rates are set without regard to the cost of service.
Dependence Upon Relationships With Key Suppliers
There are few manufacturers of equipment which can be used for home monitoring of patients on anticoagulants. There is the possibility that a new meter will encounter difficulties or “bugs” when first sent to market, and that initial technical support costs may be higher than for more well-established meters. Even if the Company switches to other competing meters, they may also encounter technical difficulties or regulatory issues. The emerging nature of the market presents risks that suppliers may not be able to provide equipment to satisfy demand. Demand may outstrip supply, leading to equipment shortages. Conversely, incorrect demand forecasting could lead to excess inventory. If the Company fails to achieve certain volume of sales, prices of meters may increase. The industry is subject to a high level of regulatory scrutiny, and government or manufacturer recalls could adversely affect the Company’s ability to provide monitoring services and achieve revenue targets.
Inadequate supply could impair the Company’s ability to attract new business and could create upward pricing pressure on equipment and supplies, adversely affecting margins for The Company. Additionally, the market for financing home testing meters and other supplies needed by the Company is limited. Several equipment manufacturers are pursuing a strategy of vertical integration, and should the Company ever need to order equipment from those manufacturers, such equipment may not be available on favorable terms.
Reliance Upon Few Payers
The Company will earn revenues by seeking reimbursement from Medicare and private health insurance companies, with the Medicare program of the US government being the primary entity making payments. If the Medicare program were to slow payments of receivables for any reason, the Company would be adversely impacted. In addition, both governmental and private health insurance companies may seek ways to avoid or delay reimbursement, which could adversely affect cash flow and revenues for the Company.
Government Regulation
Some operations of the Company will require certain licenses and permits from the authorities in the United States. The ability of the Company and its subsidiaries to obtain, sustain or renew any such licenses and permits on acceptable terms is subject to changes in regulations and policies and to the discretion of the applicable authorities or other governmental agencies. The ability of the Company to collect certain revenues in the future will depend on the Company receiving approval of an independent diagnostic testing facility and entering into an agreement with Medicare. There is no guarantee that the Company will meet these conditions. The Company will be subject to regulation from United States federal and state authorities. Regulatory action could disrupt its ability to provide services. Such regulatory action could come in the form of actions against manufacturers, unrelated to the Company’s conduct, or actions based upon the Company’s operation. Regulatory action could prevent or delay reimbursement for certain services.
Page | 13
|
MANAGEMENT’S DISCUSSION AND ANALYSIS March 31, 2020 (Tabular dollar amounts expressed in thousands of Canadian Dollars) |
There could also be legislative action that could adversely affect the Company’s business model, including, without limitation: a decision by the United States government to become the exclusive provider of health care services at some time in the future; changes in United States federal or state laws, rules, and regulations, including those governing the corporate practice of medicine, and fee splitting; and changes in the United States Anti-Kickback Statute and Stark Law and/or similar state laws, rules, and regulations. Conversely, budgetary problems in the United States could lead to reduced funding, substantial modification or elimination of Medicare programs, which would end reimbursement for many patients. There can be no assurance that new rules and regulations will not be enacted or that existing rules and regulations will not be applied in a manner which could limit or curtail the business of the Company. Amendments to current laws and regulations could have a substantial adverse impact on the Company.
CMS (Centers for Medicare & Medicaid Services) policies of health insurance for Medicare in the United States may affect the amount of revenue the Company receives. The Company will continue to be subject to risk that reimbursement rates for its services from both federal and private payers will decline over time. Reimbursement from federal programs is subject to constant regulatory review and increasing audits by federal authorities, the effect of which may be to increase costs of service and delay or affect reimbursement, which could negatively impact cash flow and/or revenue. Audits may be costly and time consuming, and could delay cash flow, even if the Company acted properly in all respects. The policies of health insurance carriers in the United States may affect the amount of revenue the Company receives.
Highly Competitive Market
The Company will participate in a highly competitive market, which may become more competitive as new players enter. Certain competitors will be subsidiaries or divisions of larger, much better capitalized companies. Certain competitors will have vertically integrated manufacturing and services sectors of the market. The Company may have less capital and may encounter greater operational challenges in serving the market. Better capitalized competitors may also be expected to borrow money or raise debt to purchase equipment more easily than the Company.
Low profit market segments
Where the Company provides services to a patient who does not use a meter often or for an extended period of time, profitability may be unlikely in respect of that patient. Also, certain patients may have a personal preference to travel to a lab for testing rather than self-testing. In these cases, the Company may not have a meter with the patient long enough to recoup costs. Where the Company owns the meter, the failure of the patient to return the meter to the Company may impact profitability. Legal costs of bringing an action to obtain return of a meter may exceed the value of the machine, leading to losses with certain patient populations even under favorable reimbursement environments.
Foreign Subsidiaries
The Company plans to conduct all its operations through respective United States subsidiaries. Therefore, to the extent of these holdings, the Company (directly and indirectly) will be dependent on the cash flows of these subsidiaries to meet its obligations. The ability of such subsidiaries to make payments to their parent companies may be constrained by the following factors: the level of taxation, particularly corporate profits and withholding taxes, in the jurisdiction in which each subsidiary operates; and the introduction of exchange controls or repatriation restrictions or the availability of hard currency to be repatriated.
Attraction and Retention of Key Personnel Including Directors
The Company will have a small management team and the loss of a key individual or inability to attract suitably qualified staff could have a material adverse impact on the business of The Company. The Company may also encounter difficulties in obtaining and maintaining suitably qualified staff. The success of The Company depends on the ability of management to interpret market data correctly and to interpret and respond to economic, market and other conditions to locate and adopt appropriate opportunities. No assurance can be given that individuals with the required skills will continue employment with The Company or that replacement personnel with comparable skills can be found. The Company will be dependent on the services of key executives, including the directors of The Company and a small number of highly skilled and experienced executives and personnel. Due to the relatively small size of The Company, the loss of these persons or The Company’s inability to attract and retain additional highly skilled employees may adversely affect its business and future operations.
Dividends
The Company currently intends to retain future earnings to finance the operation, development and expansion of its business. The Company does not anticipate paying cash dividends on the Company Shares in the foreseeable future. Payment of future cash dividends, if any, will be at the discretion of the Company Board and will depend on the Company’s financial condition, results of operations, contractual restrictions, capital requirements, business prospects and other factors that the Company Board may consider relevant. Accordingly, investors will only see a return on their investment if the value of the Company Shares appreciates.
Discretion in the Use of Available Funds
Management will have broad discretion concerning the use of the available funds of the Company as well as the timing of their expenditures. As a result, shareholders and investors will be relying on the judgment of management of the Company on completion of the Arrangement for the application of the available funds of the Company (see “Available Funds and Principal Purposes” above). Management may use the available funds in ways that an investor may not consider desirable. The results and the effectiveness of the application of the available funds are uncertain. If the available funds are not applied effectively, the Company’s results of operations may suffer.
Page | 14
|
MANAGEMENT’S DISCUSSION AND ANALYSIS March 31, 2020 (Tabular dollar amounts expressed in thousands of Canadian Dollars) |
Potential Conflicts of Interest
Some of the proposed directors and officers of the Company are engaged and will continue to be engaged as directors and officers of other companies in the search for additional business opportunities on behalf of such other corporations, and situations may arise where these directors and officers will be in direct competition with the Company. Some of the proposed directors and officers of the Company are or may become directors or officers of other companies engaged in other business ventures.
Conflicts of interest, if any, which arise may be subject to and be governed by procedures prescribed by the Business Corporations Act (British Columbia) which require a director or officer of a corporation who is a party to or is a director or an officer of or has a material interest in any person who is a party to a material contract or proposed material contract with The Company to disclose his interest and to refrain from voting on any matter in respect of such contract unless otherwise permitted under the Business Corporations Act (British Columbia). Any decision made by any of such directors and officers involving the Company should be made in accordance with their duties and obligations to deal fairly and in good faith with a view to the best interests of the Company and its shareholders.
Insurance and Uninsured Risks
The Company’s business will continue to be subject to several risks and hazards generally, including general liability. Such occurrences could result in damage to property, inventory, facilities, personal injury or death, damage to the properties of the Company, or the properties of others, monetary losses and possible legal liability. The Company may be subject to product liability and medical malpractice claims, which may adversely affect its operations. The Company’s industry is highly regulated, and the Company may be subject to regulatory scrutiny for violations of regulations and laws. The Company could be adversely affected by the time and cost involved with regulatory investigations even if it has operated in compliance with all laws. Investigations could also adversely affect the timely payment of receivables.
Although the Company will maintain insurance to protect against certain risks in such amounts as it considers to be reasonable, its insurance will not cover all the potential risks associated with its operations. The Company may also be unable to maintain insurance to cover these risks at economically feasible premiums. Insurance coverage may not continue to be available or may not be adequate to cover any resulting liability. The Company might also become subject to liability which may not be insured against or which the Company may elect not to insure against because of premium costs or other reasons. Losses from these events may cause the Company to incur significant costs that could have a material adverse effect upon its financial performance and results of operations.
Additional Capital
The development and the business (including acquisitions) of the Company may require additional financing, which may involve high transaction costs, dilution to shareholders, high interest rates or unfavorable terms and conditions. Failure to obtain sufficient financing may result in the delay or indefinite postponement of its business plans. As the Company will likely be unable to obtain traditional debt financing until it has a profitable and longer operating history, the initial primary source of funding available to the Company will consist of equity financing. There can be no assurance that additional capital or other types of financing will be available if needed or that, if available, the terms of such financing will be favorable to the Company.
Loss of Foreign Private Issuer Status
The Company may lose its foreign private issuer status in the future, which could result in significant additional costs and expenses. As a foreign private issuer, as defined in Rule 3b-4 under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), the Company is currently exempt from certain of the provisions of the U.S. federal securities laws. For example, an issuer with total assets in excess of US$10 million and whose outstanding equity securities are held by 2,000 or more persons, or 500 or more persons who are not “accredited investors”, must register such securities as a class under the Exchange Act. However, as a foreign private issuer subject to Canadian continuous disclosure requirements, the Company may claim the exemption from registration under the Exchange Act provided by Rule threeg3-2(b) thereunder, even if these thresholds are exceeded. To be considered a foreign private issuer, The Company must satisfy a United States shareholder test (not more than 50% of the voting securities of a company must be held by residents of the United States) if any of the following disqualifying conditions apply: (i) the majority of the Company’s executive officers or directors are United States citizens or residents; (ii) more than 50 percent of The Company’s assets are located in the United States; or (iii) The Company’s business is administered principally in the United States. Based on information available as at the date hereof, approximately 26.7% of the Company’s outstanding voting securities are anticipated to be directly or indirectly held of record by residents of the United States. If the Company loses its status as a foreign private issuer, these regulations could apply and it could also be required to commence reporting on forms required of U.S. domestic companies, such as Forms 10-K, 10-Q and 8-K. It could also become subject to U.S. proxy rules, and certain holders of its equity securities could become subject to the insider reporting and “short swing” profit rules under Section 16 of the Exchange Act. In addition, any securities issued by the Company if it loses foreign private issuer status would become subject to certain rules and restrictions under the Securities Act of 1933, as amended, even if they are issued or resold outside the United States. Compliance with the additional disclosure, compliance and timing requirements under these securities laws would likely result in increased expenses and would require the Company’s management to devote substantial time and resources to comply with new regulatory requirements.
Page | 15
|
MANAGEMENT’S DISCUSSION AND ANALYSIS March 31, 2020 (Tabular dollar amounts expressed in thousands of Canadian Dollars) |
United States Operations and Exchange Rate Fluctuations
All the Company’s revenue generating operations will occur in the United States. The Company will be subject to a number of risks associated with its operations that may increase liability and costs and require significant management attention. These risks include:
· | compliance with laws of the United States that will apply to the Company’s United States operations, including lawful access, privacy laws and anti-corruption laws; |
· | instability in economic or political conditions, including inflation, recession and political uncertainty; |
· | potential adverse tax consequences; and |
· | litigation in United States courts. |
In addition, the Company will be exposed to foreign exchange risk as a result of substantially all its revenue generating operations taking place in the United States and thus, revenues and expenses being earned and paid in United States dollars while the Company reports its financial statements in Canadian dollars. If the Canadian dollar appreciates relative to the United States dollar, the Company’s Canadian dollar expenses and revenues will decrease when translated from United States dollars for financial reporting purposes. Conversely, if the Canadian dollar depreciates relative to the United States dollar, the Company’s Canadian dollar expenses and revenues will increase when translated from United States dollars for financial reporting purposes. In addition, exchange rate fluctuations may affect the costs that The Company incurs in its operations. The appreciation of non- United States dollar currencies against the United States dollar can increase the cost of operations in United States dollar terms. Foreign exchange rate fluctuations may materially affect the Company’s financial condition and results of operations in future periods.
The Company will continue to translate the assets and liabilities of its United States dollar functional currency subsidiaries into Canadian dollars using exchange rates in effect at the end of each period. Revenue and expenses for these subsidiaries are translated using average exchange rates that approximate those in effect during the period. The Company will continue to maintain cash balances in both United States and Canadian dollars, but management anticipates that it will not purchase any securities or financial instruments to speculate on or hedge against a rise or fall in the value of the United States dollar.
Global Economy
Recent market events and conditions, including disruptions in the international credit markets and other financial systems and the deterioration of global economic conditions, could impede the Company’s access to capital or increase the cost of capital. From 2007 to 2009, the United States credit markets began to experience serious disruption due to deterioration in residential property values, defaults and delinquencies in the residential mortgage market and a decline in the credit quality of mortgage- backed securities. These problems led to a slow-down in residential housing market transactions, declining housing prices, delinquencies in non-mortgage consumer credit and a general decline in consumer confidence. These conditions caused a loss of confidence in the broader United States and global credit and financial markets and resulted in the collapse of, and government intervention in, major banks, financial institutions and insurers and created a climate of greater volatility, less liquidity, widening of credit spreads, a lack of price transparency, increased credit losses and tighter credit conditions which continued throughout 2012 with continued uncertainty in the European marketplace and continued uncertainty surrounding the “fiscal cliff” , the United States government deficit and the United States government spending cuts. Notwithstanding various actions by the United States and foreign governments, concerns about the general condition of the capital markets, financial instruments, banks, investment banks, insurers and other financial institutions caused the broader credit markets to deteriorate and stock markets to fluctuate substantially.
These disruptions in the current credit and financial markets have had a significant material adverse impact on several financial institutions and have limited access to capital and credit for many companies, including junior mining companies. These disruptions could, among other things, make it more difficult for the Company to obtain, or increase its cost of obtaining, capital and financing for its operations. Access to additional capital may not be available to the Company on terms acceptable to it, or at all.
COVID-19 Pandemic
On March 11, 2020, the World Health Organization declared the outbreak of a novel strain of coronavirus (“COVID-19”) a global pandemic. In response to the outbreak, governmental authorities in the United States and internationally have introduced various recommendations and measures to try to limit the pandemic, including travel restrictions, border closures, non-essential business closures, quarantines, self-isolations, shelters-in-place, and social distancing. The COVID-19 outbreak and the response of governmental authorities to try to limit it are having a significant impact on the private sector and individuals, including unprecedented business, employment, and economic disruptions.
Although the Company has taken steps to mitigate the impact of COVID-19, the continued presence and spread of COVID-19 nationally and globally could have a material adverse impact on the Company’s business, operations, and financial results and position, including through employee attrition, disruptions to the Company’s supply chains and sales channels, restrictions of operations at our retail stores, changes in the number of Americans with health insurance resulting in a change in demand for the Company’s products, as well as a deterioration of general economic conditions including a possible national or global recession. Due to the speed with which the COVID-19 situation is developing and the uncertainty of its magnitude, outcome, and duration, it is not possible to estimate its impact on the Company’s business, operations, financial results and position or prospects at this time.
Page | 16
|
MANAGEMENT’S DISCUSSION AND ANALYSIS March 31, 2020 (Tabular dollar amounts expressed in thousands of Canadian Dollars) |
The Company continues to monitor the situation and work with its stakeholders (including customers, employees, and suppliers) in order to assess further possible implications to its business, supply chain, and customers, and, where practicable, mitigate adverse consequences and responsibly address this global pandemic.
Finally, the actual and threatened spread of COVID-19 globally could adversely affect global economies and financial markets, resulting in a prolonged economic downturn and a decline in the value of the Company’s share price. The extent to which COVID- 19 (or any other disease, epidemic, or pandemic) impacts business activity or financial results, and the duration of any such negative impact, will depend on future developments, which are highly uncertain and cannot be predicted, including new information which may emerge concerning COVID-19 and the actions required to contain or treat its impact, among others.
Page | 17
Exhibit 99.32
Protech Home Medical Corp.
Condensed Consolidated Interim Financial Statements
2020 Second Quarter
For the Three and Six Months Ended
March 31, 2020 and 2019
(UNAUDITED)
(Expressed in Canadian dollars)
TABLE OF CONTENTS
Condensed Consolidated Statements of Financial Position | Page 3 | |
Condensed Consolidated Statements of Loss and Comprehensive Loss | Page 4 | |
Condensed Consolidated Statements of Changes in Shareholders’ Equity | Page 5 | |
Condensed Consolidated Statements of Cash Flows | Page 6 | |
Notes to the Condensed Consolidated Financial Statements | Pages 7-15 |
NOTICE OF NO AUDITOR REVIEW OF INTERIM FINANCIAL STATEMENTS
Under National Instrument 51-102, Part 4, subsection 4.3 (3) (a), if an auditor has not performed a review of these condensed consolidated interim financial statements, they must be accompanied by a notice indicating that the financial statements have not been reviewed by an auditor.
The accompanying unaudited condensed consolidated interim financial statements of the Protech Home Medical Corp (the “Company”) have been prepared by and are the responsibility of the Company’s management and approved by the Board of Directors of the Company.
The Company’s independent auditor has not performed a review of these unaudited condensed consolidated interim financial statements in accordance with standards established by the Canadian Institute of Chartered Professional Accountants for a review of interim financial statements by an entity’s auditor.
PROTECH HOME MEDICAL CORP.
CONDENSED
CONSOLIDATED INTERIM STATEMENTS OF FINANCIAL POSITION
(UNAUDITED)
(Expressed in thousands of Canadian Dollars, except per share amounts)
As at | As at | |||||||||||
Notes | March 31, 2020 | September 30, 2019 | ||||||||||
ASSETS | ||||||||||||
Current Assets | ||||||||||||
Cash | $ | 6,210 | $ | 12,855 | ||||||||
Accounts receivable, net | 15,047 | 12,390 | ||||||||||
Inventory, net | 4 | 7,808 | 4,738 | |||||||||
Prepaid expenses and other current assets | 1,089 | 800 | ||||||||||
Total current assets | 30,154 | 30,783 | ||||||||||
Long-term assets | ||||||||||||
Property and equipment and right of use assets, net | 5 | 26,024 | 19,496 | |||||||||
Goodwill | 6 | 5,744 | 1,881 | |||||||||
Intangible assets, net | 6 | 2,685 | 2,911 | |||||||||
Deposits | 104 | 94 | ||||||||||
Total long-term assets | 34,557 | 24,382 | ||||||||||
TOTAL ASSETS | $ | 64,711 | $ | 55,165 | ||||||||
LIABILITIES | ||||||||||||
Current Liabilities | ||||||||||||
Trade payables | $ | 10,919 | $ | 8,122 | ||||||||
Accrued liabilities | 3,579 | 2,319 | ||||||||||
Current portion of lease liabilities | 7 | 8,873 | 8,528 | |||||||||
Total current liabilities | 23,371 | 18,969 | ||||||||||
Long-Term Liabilities | ||||||||||||
Debentures | 7 | 12,147 | 13,966 | |||||||||
Lease liabilities | 7 | 7,727 | 3,081 | |||||||||
Other long-term liabilities | 243 | - | ||||||||||
Total long-term liabilities | 20,117 | 17,047 | ||||||||||
TOTAL LIABILITIES | 43,488 | 36,016 | ||||||||||
SHAREHOLDERS' EQUITY | ||||||||||||
Share capital |
198,223 | 198,196 | ||||||||||
Contributed surplus | 21,524 | 21,390 | ||||||||||
Accumulated deficit | (213,557 | ) | (213,440 | ) | ||||||||
Accumulated other comprehensive income | 15,033 | 13,003 | ||||||||||
TOTAL SHAREHOLDERS' EQUITY | 21,223 | 19,149 | ||||||||||
TOTAL LIABILITIES AND SHAREHOLDERS' EQUITY | $ | 64,711 | $ | 55,165 |
APPROVED ON BEHALF OF THE BOARD:
signed “Donald Ewing” | signed “Mark Greenberg” |
The accompanying notes are an integral part of these condensed consolidated interim financial statements
Page | 3
PROTECH HOME MEDICAL CORP.
CONDENSED CONSOLIDATED
INTERIM STATEMENTS OF INCOME (LOSS) AND
COMPREHENSIVE INCOME (LOSS)
(UNAUDITED)
(Expressed in thousands of Canadian Dollars, except per share amounts)
Three months
ended March 31, |
Three Months
ended March 31, |
Six Months ended | Six Months ended | |||||||||||||||||
Notes | 2020 | 2019 | March 31, 2020 | March 31, 2019 | ||||||||||||||||
Revenue | ||||||||||||||||||||
Sales of medical equipment and supplies | $ | 10,105 | $ | 9,380 | $ | 19,967 | $ | 18,694 | ||||||||||||
Rentals of medical equipment | 13,996 | 11,444 | 26,903 | 22,639 | ||||||||||||||||
Total revenue | 24,101 | 20,824 | 46,870 | $ | 41,333 | |||||||||||||||
Cost of revenue | 6,502 | 6,082 | 12,531 | 12,312 | ||||||||||||||||
Gross profit | 17,599 | 14,742 | 34,339 | 29,021 | ||||||||||||||||
Selling, general, and administrative | 10 | 12,740 | 10,780 | 25,292 | 21,323 | |||||||||||||||
Depreciation | 5 | 4,495 | 2,853 | 9,046 | 6,020 | |||||||||||||||
Amortization of intangible assets | 6 | 167 | 151 | 406 | 302 | |||||||||||||||
Stock-based compensation | 8 | 92 | 361 | 134 | 891 | |||||||||||||||
Gain on sale of property and equipment | (11 | ) | - | (91 | ) | (2 | ) | |||||||||||||
Other expense (income) | (55 | ) | 165 | (200 | ) | 171 | ||||||||||||||
Operating Income from continuing operations | 171 | 432 | (248 | ) | 316 | |||||||||||||||
Financing expenses | ||||||||||||||||||||
Interest expense on debentures | 300 | 162 | 600 | 323 | ||||||||||||||||
Other interest expense, net | 320 | 182 | 624 | 318 | ||||||||||||||||
Accretion expense | - | 420 | - | 520 | ||||||||||||||||
Change in fair value of debentures and derivative | 7 | (2,549 | ) | 96 | (1,814 | ) | 28 | |||||||||||||
Income (loss) before taxes from continuing operations | 2,100 | (428 | ) | 343 | (872 | ) | ||||||||||||||
Provision for income taxes | 44 | 163 | 44 | 105 | ||||||||||||||||
Net income (loss) from continuing operations |
2,056 | (591 | ) | 299 | (977 | ) | ||||||||||||||
Discontinued operations: | ||||||||||||||||||||
Net income (loss) from discontinued operations | 13 | (416 | ) | 61 | (416 | ) | 582 | |||||||||||||
Net income (loss) | $ | 1,640 | $ | (530 | ) | $ | (117 | ) | $ | (395 | ) | |||||||||
Other comprehensive income (loss) | ||||||||||||||||||||
Cumulative translation adjustment | 2,567 | (493 | ) | 2,030 | 962 | |||||||||||||||
Comprehensive income (loss) | $ | 4,207 | $ | (1,029 | ) | $ | 1,913 | $ | 561 | |||||||||||
Net income (loss) per share | ||||||||||||||||||||
Basic | 11 | $ | 0.02 | $ | (0.01 | ) | $ | (0.00 | ) | $ | (0.00 | ) | ||||||||
Diluted | 11 | $ | 0.02 | $ | (0.01 | ) | $ | (0.00 | ) | $ | (0.00 | ) | ||||||||
Weighted average number of common shares outstanding: | ||||||||||||||||||||
Basic | 83,657 | 83,530 | 83,623 | 82,176 | ||||||||||||||||
Diluted | 88,496 | 83,550 | 83,623 | 82,176 |
The accompanying notes are an integral part of these condensed consolidated interim financial statements.
Page | 4
PROTECH HOME MEDICAL CORP.
CONDENSED CONSOLIDATED INTERIM STATEMENTS
OF
CHANGES IN SHAREHOLDERS’ EQUITY
(UNAUDITED)
(Expressed in thousands of Canadian Dollars)
Number of
Shares (000’s) |
Capital
stock |
Contributed
surplus |
Accumulated
Deficit |
Accumulated
other comprehensive income |
||||||||||||||||||||
Balance September 30, 2018 | 75,819 | $ | 193,951 | $ | 19,041 | $ | (206,055 | ) | $ | 12,332 | $ | 19,269 | ||||||||||||
Net income (loss) | - | - | - | (396 | ) | - | (396 | ) | ||||||||||||||||
Other comprehensive income | - | - | - | - | 962 | 962 | ||||||||||||||||||
Stock-based compensation (Note 8) | - | - | 891 | - | - | 891 | ||||||||||||||||||
Stock issued with acquisition (Note 3) | 227 | 164 | - | - | - | 164 | ||||||||||||||||||
Proceeds from issuance of shares (Note 8) | 7,483 | 3,604 | - | - | - | 3,604 | ||||||||||||||||||
Underwriter options issued (Note 8) | - | (135 | ) | 135 | - | - | - | |||||||||||||||||
Balance March 31, 2019 |
83,529 | $ | 197,584 | $ | 20,067 | $ | (206,451 | ) | $ | 13,294 | $ | 24,494 | ||||||||||||
Balance September 30, 2019 | 83,589 | $ | 198,196 | $ | 21,390 | $ | (213,440 | ) | $ | 13,003 | $ | 19,149 | ||||||||||||
Net loss | - | - | - | (117 | ) | - | (117 | ) | ||||||||||||||||
Exercise of stock options (Note 8) | 96 | 27 | - | - | - | 27 | ||||||||||||||||||
Other comprehensive income | - | - | - | - | 2,030 | 2,030 | ||||||||||||||||||
Stock-based compensation (Note 8) | - | - | 134 | - | - | 134 | ||||||||||||||||||
Balance March 31, 2020 | 83,685 | $ | 198,223 | $ | 21,524 | $ | (213,557 | ) | $ | 15,033 | $ | 21,223 |
The accompanying notes are an integral part of these condensed consolidated interim financial statements.
Page | 5
PROTECH HOME MEDICAL CORP.
CONDENSED CONSOLIDATED
INTERIM STATEMENTS OF CASH FLOWS
(UNAUDITED)
(Expressed in thousands of Canadian Dollars)
Notes |
Six months ended
March 31, 2020 |
Six months ended
March 31, 2019 |
||||||||||
Operating activities | ||||||||||||
Net income from continuing operations | $ | 299 | $ | (978 | ) | |||||||
Net income from discontinued operations | 13 | (416 | ) | 582 | ||||||||
Adjustments to reconcile net income to net cash provided by operating activities: | ||||||||||||
Depreciation and amortization | 9,452 | 6,323 | ||||||||||
Depreciation and amortization – discontinued operations | 13 | - | 232 | |||||||||
Accretion expense | - | 520 | ||||||||||
Change in fair value of debentures and derivative | 7 | (1,814 | ) | 28 | ||||||||
(Gain)/loss on disposal of property and equipment | (91 | ) | 163 | |||||||||
Stock-based compensation | 8 | 134 | 891 | |||||||||
Bad debt expense | 10 | 4,114 | 2,860 | |||||||||
Bad debt expense – discontinued operations | - | 32 | ||||||||||
Change in Working Capital: | ||||||||||||
Net increase in accounts receivable | (4,890 | ) | (6,752 | ) | ||||||||
Net increase in inventory | (1,473 | ) | (1,553 | ) | ||||||||
Net increase in other current assets | (163 | ) | (219 | ) | ||||||||
Net increase in trade payables and accrued liabilities | 839 | 1,979 | ||||||||||
Net cash flows provided by operating activities | 5,991 | 4,108 | ||||||||||
Investing activities | ||||||||||||
Purchases of property and equipment | (77 | ) | (568 | ) | ||||||||
Proceeds from sales of property and equipment | 169 | 15 | ||||||||||
Cash paid for acquisitions | 3 | (4,160 | ) | (526 | ) | |||||||
Net cash flow used in investing activities | (4,068 | ) | (1,079 | ) | ||||||||
Financing activities | ||||||||||||
Payments of finance lease obligations | (9,072 | ) | (6,382 | ) | ||||||||
Proceeds from issuance of debenture | - | 13,959 | ||||||||||
Proceeds from the exercise of options | 27 | - | ||||||||||
Proceeds from issuance of common shares | - | 3,604 | ||||||||||
Net cash flow received (used in) financing activities | (9,045 | ) | 11,181 | |||||||||
Net increase (decrease) in cash | (7,122 | ) | 14,210 | |||||||||
Effect of exchange rate changes on cash held in foreign currencies | 477 | 588 | ||||||||||
Cash, beginning of period | 12,855 | 4,331 | ||||||||||
Cash, end of period | $ | 6,210 | $ | 19,129 |
The accompanying notes are an integral part of these condensed consolidated interim financial statements.
Page | 6
PROTECH HOME MEDICAL CORP.
NOTES TO THE CONDENSED
CONSOLIDATED
INTERIM FINANCIAL STATEMENTS
(UNAUDITED)
(Tabular dollar amounts expressed in thousands of Canadian Dollars, except per share amounts)
1. | Nature of operations |
Reporting entity
Protech Home Medical Corp. ("Protech" or the “Company”) was incorporated under the Business Corporations Act (Alberta) on March 5, 1993. On December 30, 2013, the Company was continued into British Columbia, Canada. The address of the registered office is 5626 Larch St. Suite 202, Vancouver, BC V6M 4E1. The head office is located at 1019 Town Drive, Wilder, Kentucky, United States. The Company is a participating Medicare provider that provides i) nebulizers, oxygen concentrators, and CPAP and BiPAP units; ii) traditional and non-traditional durable medical respiratory equipment and services; and iii) non-invasive ventilation equipment, supplies and services. The Company has embarked on an acquisition strategy for additional revenue and profit growth. The Company’s shares are traded on the TSX Venture Exchange under the symbol PTQ. The stock is also traded over the counter in the United States under the symbol PHMZF.
On July 29, 2019, the Company sold all the assets of one of its subsidiaries, Patient Home Monitoring, Inc. The consolidated financial statements and the notes reflect the Patient Home Monitoring, Inc. as discontinued operations. Prior year amounts have been reclassified in order to be comparable to the current year presentation.
Share consolidation
Effective December 31, 2018, the Company consolidated its common shares on the basis of one (1) new post-consolidation common share for every five (5) pre-consolidation common shares. The consolidation will affect shareholders uniformly, including holders of outstanding incentive stock options, warrants and other securities convertible into exercisable for common shares on the effective date.
Going concern
These consolidated financial statements have been prepared on a going concern basis. The application of the going concern basis of presentation assumes that the Company will continue its operations for the foreseeable future and be able to realize its assets and discharge its liabilities and commitments in the normal course of operation. If this assumption was not appropriate, adjustments to these condensed consolidated financial statements may be necessary.
2. | Summary of significant accounting policies |
Unreserved statement of compliance
These unaudited condensed consolidated interim financial statements have been prepared in accordance with International Accounting Standard (IAS) 34, Interim Financial Reporting using accounting policies consistent with International Financial Reporting Standards (IFRS) as issued by the International Accounting Standards Board. These condensed consolidated interim financial statements do not include all the disclosures required in annual consolidated financial statements and should be read in conjunction with the Company’s audited consolidated financial statements for the years ended September 30, 2019 and 2018.
Except as noted below, the Company has followed the same basis of presentation, accounting policies and method of computation for these condensed consolidated interim financial statements as disclosed in the annual audited consolidated financial statements for the years ended September 30, 2019 and 2018.
The unaudited condensed consolidated interim financial statements were approved and authorized for issuance by the Board of Directors on May 19, 2020.
These unaudited condensed consolidated interim financial statements, which are presented in Canadian dollars, have been prepared under the historical cost convention, as modified by the measurement at fair values of certain financial assets and financial liabilities.
Page | 7
PROTECH HOME MEDICAL CORP.
NOTES TO THE CONDENSED
CONSOLIDATED
INTERIM FINANCIAL STATEMENTS
(UNAUDITED)
(Tabular dollar amounts expressed in thousands of Canadian Dollars, except per share amounts)
New standards and interpretations adopted
IFRS 16, Leases
Effective October 1, 2019, the Company adopted IFRS 16, Leases. IFRS 16 eliminates the distinction between operating and finance leases from the perspective of the lessee. All contracts that meet the definition of a lease will be recorded in the statement of financial position with a “right of use” asset and a corresponding liability at the present value of the future lease payments using the lessee’s incremental borrowing rate of 8%.
The Company elected to adopt IFRS 16 using the modified retrospective approach. Under this approach, the Company will not restate its comparative figures, but will recognize the cumulative effect of adopting IFRS 16 as an adjustment to opening statement of financial position, with the recognition of $3,456,000 of right of use assets and finance lease obligations on October 1, 2019. On the condensed consolidated statement of income, the impact of the adoption of IFRS 16 is to increase depreciation expense and interest expense, and decrease selling, general, and administrative expenses.
The Company elected to apply the practical expedient to exclude recognition of right of use assets and lease liabilities for leases under 12 months in duration or for which the lease term ends within 12 months of initial application for leases, and for low-value assets. The Company also elected to apply IFRS 16 only to the contracts that were previously identified as leases. Contracts that were not identified as leases under IAS 17 Leases will not be reassessed for whether a lease exists.
Functional currency
The consolidated financial statements of the Company are presented in Canadian dollars, which is the parent Company’s presentation currency but which differs from its functional currency, the US Dollar, which was determined using management’s judgment that the primary economic environment in which it will derive its revenue and expenses incurred to generate those revenues is the United States. Management has exercised judgment in selecting the functional currency of each of the entities that it consolidates based on the primary economic environment in which the entity operates and in reference to the various indicators including the currency that primarily influences or determines the selling prices of goods and services and the cost of production, including labor, material and other costs and the currency whose competitive forces and regulations mainly determine selling prices.
Business combinations
In accordance with IFRS 3 – Business Combination (“IFRS 3”), a transaction is recorded as a business combination if the significant assets, liabilities, or activities in addition to property and related mortgage debt assumed constitute a business. A business is defined as an integrated set of activities and assets, capable of being conducted and managed for the purpose of providing a return, lower costs, or other economic benefits. Where there are no such integrated activities, the transaction is treated as an asset acquisition. The estimation of the fair value of the assets and liabilities acquired in an acquisition is subject to judgement concerning estimating market values and predicting future events. These values are uncertain and can materially impact the carrying value of the acquired assets and the amount allocated to goodwill.
Recognition and initial measurement
The Company recognizes financial assets when it becomes party to the contractual provisions of the instrument. Financial assets are measured initially at their fair value plus, in the case of financial assets not subsequently measured at fair value through profit or loss, transaction costs that are directly attributable to their acquisition. Transaction costs attributable to the acquisition of financial assets subsequently measured at fair value through profit or loss are expensed in the consolidated statement of income (loss) and comprehensive income (loss) when incurred.
Page | 8
PROTECH HOME MEDICAL CORP.
NOTES TO THE CONDENSED
CONSOLIDATED
INTERIM FINANCIAL STATEMENTS
(UNAUDITED)
(Tabular dollar amounts expressed in thousands of Canadian Dollars, except per share amounts)
3. | Acquisition of businesses and purchase accounting |
Acquisition of Cooley Medical Equipment, Inc. (Cooley)
Effective October 1, 2019, the Company, through one of its indirect wholly owned subsidiaries, entered into a purchase agreement to acquire the shares of Cooley Medical Equipment, Inc. (Cooley), a Kentucky company in the same industry as the Company. The purchase price was $3,089,000 in cash. The Company has determined that the transaction is an acquisition of a business under IFRS 3 and it has been accounted for by applying the acquisition method.
Pro forma twelve-month revenues and net loss for Cooley had the acquisition occurred on October 1, 2018 were approximately $9,500,000 and ($1,700,000), respectively.
The fair value of the acquired assets is provisional pending final valuations of the asset and is as follows:
Cash | $ | 106 | ||
Accounts receivable | 801 | |||
Inventory | 818 | |||
Prepaid assets | 55 | |||
Property and equipment | 2,859 | |||
Goodwill | 1,794 | |||
Accounts payable and accrued liabilities | (1,709 | ) | ||
Lease liabilities | (1,635 | ) | ||
Net assets acquired | $ | 3,089 |
Acquisition of Acadia Medical Supply, Inc. (Acadia)
Effective December 1, 2019, the Company, through one of its indirect wholly owned subsidiaries, entered into a purchase agreement to acquire the shares of Acadia Medical Supply, Inc. (Acadia), a Maine company in the same industry as the Company. The purchase price was $1,071,000 in cash. The Company has determined that the transaction is an acquisition of a business under IFRS 3 and it has been accounted for by applying the acquisition method.
Pro forma twelve-month revenues and net income for Acadia had the acquisition occurred on October 1, 2018 were approximately $4,200,000 and $400,000, respectively.
The fair value of the acquired assets is provisional pending final valuations of the assets and is as follows:
Cash | $ | 79 | ||
Accounts receivable | 139 | |||
Inventory | 350 | |||
Property and equipment | 330 | |||
Other assets | 10 | |||
Goodwill | 1,694 | |||
Accounts payable and accrued liabilities | (895 | ) | ||
Lease liabilities | (636 | ) | ||
Net assets acquired | $ | 1,071 |
Prior Periods
During the six months ended March 31, 2019, the Company acquired two businesses. The details of these acquisitions were disclosed in Note 7 of the Company’s annual financial statements for the year ended September 30, 2019.
Page | 9
PROTECH HOME MEDICAL CORP.
NOTES TO THE CONDENSED
CONSOLIDATED
INTERIM FINANCIAL STATEMENTS
(UNAUDITED)
(Tabular dollar amounts expressed in thousands of Canadian Dollars, except per share amounts)
4. | Inventory |
As at March 31,
2020 |
As at September 30,
2019 |
|||||||
Serialized | $ | 2,324 | $ | 936 | ||||
Non-serialized | 5,484 | 3,802 | ||||||
Total inventory | $ | 7,808 | $ | 4,738 |
5. | Property and equipment and right of use assets |
Property and equipment is stated at cost less accumulated depreciation. Major renewals and improvements are charged to the property accounts, while maintenance, and repairs which do not extend the useful life of the respective assets, are expensed as incurred. Depreciation is computed using the straight-line method over the estimated useful lives of the respective assets.
The estimated useful lives of the assets are as follows:
Description | Estimated Useful Life | |
Monitoring equipment | 1-5 years | |
Computer equipment | 3-5 years | |
Vehicles | 3-5 years | |
Office furniture and fixtures | 5-10 years | |
Leasehold improvements and right of use real estate leases | Life of Lease |
Depreciation of monitoring equipment commences once it has been deployed to a patient’s address and put in use. Property and equipment and other non-current assets with definite useful lives are tested for impairment whenever events or changes in circumstances indicate that their carrying amount may not be recoverable.
Cost |
Monitoring
equipment |
Computer
equipment |
Office
furniture and fixtures |
Leasehold
improvements |
Vehicles |
Right of
use assets – Real estate |
Total | |||||||||||||||||||||
Balance September 30, 2019 | $ | 35,377 | $ | 668 | $ | 574 | $ | 1,548 | $ | 3,426 | $ | - | $ | 41,593 | ||||||||||||||
Additions – adoption of IFRS 16 | - | - | - | - | - | 3,456 | 3,456 | |||||||||||||||||||||
Additions | 5,990 | 4 | - | 43 | 681 | 897 | 7,615 | |||||||||||||||||||||
Acquisitions | 1,770 | - | - | 306 | 95 | 1,018 | 3,189 | |||||||||||||||||||||
Disposals | (10,409 | ) | (57 | ) | (92 | ) | (197 | ) | (624 | ) | - | (11,379 | ) | |||||||||||||||
Foreign exchange | 2,088 | 49 | 41 | 231 | 349 | 367 | 3,125 | |||||||||||||||||||||
Balance March 31, 2020 | $ | 34,816 | $ | 664 | $ | 523 | $ | 1,931 | $ | 3,927 | $ | 5,738 | $ | 47,599 |
Accumulated Depreciation |
Monitoring
equipment |
Computer
equipment |
Office
fixtures |
Leasehold
improvements |
Vehicles |
Right of
use assets – Real estate |
Total | |||||||||||||||||||||
Balance September 30, 2019 | $ | 19,557 | $ | 491 | $ | 344 | $ | 340 | $ | 1,365 | $ | - | $ | 22,097 | ||||||||||||||
Depreciation | 7,539 | 67 | 52 | 100 | 416 | 872 | 9,046 | |||||||||||||||||||||
Disposals | (10,409 | ) | (57 | ) | (92 | ) | (197 | ) | (544 | ) | - | (11,299 | ) | |||||||||||||||
Foreign exchange | 1,289 | 38 | 27 | 126 | 193 | 58 | 1,731 | |||||||||||||||||||||
Balance March 31, 2020 | $ | 17,976 | $ | 539 | $ | 331 | $ | 369 | $ | 1,430 | $ | 930 | $ | 21,575 |
Office
furniture |
Right of
use assets |
|||||||||||||||||||||||||||
Monitoring | Computer | and | Leasehold | – Real | ||||||||||||||||||||||||
Net Book Value | equipment | equipment | fixtures | improvements | Vehicles | estate | Total | |||||||||||||||||||||
Balance September 30, 2019 | $ | 15,820 | $ | 177 | $ | 230 | $ | 1,208 | $ | 2,061 | $ | - | $ | 19,496 | ||||||||||||||
Balance March 31, 2020 | $ | 17,090 | $ | 125 | $ | 192 | $ | 1,562 | $ | 2,497 | $ | 4,808 | $ | 26,024 |
Page | 10
PROTECH HOME MEDICAL CORP.
NOTES TO THE CONDENSED
CONSOLIDATED
INTERIM FINANCIAL STATEMENTS
(UNAUDITED)
(Tabular dollar amounts expressed in thousands of Canadian Dollars, except per share amounts)
6. | Goodwill and intangible assets |
The Company has recorded various intangible assets consisting primarily of non-compete agreements, trademarks, customer contracts and customer relationships. Non-compete agreements are the value associated with the non-compete agreements entered by the sellers of purchased companies. Trademarks are the purchase price allocation for the value associated with the trade name of the acquired company. Customer contracts are comprised of the purchase price allocation of the present value of expected future customer billings based on the statistical life of a customer. Customer relationships are the value given in the purchase price allocation to the long-term associations with referral sources such as doctors, medical centers, etc. Finite life intangible assets are amortized on a straight-line basis over the estimated useful lives of the related assets as follows:
Description | Estimated Useful | |
Life Non-compete agreements | 5 Years | |
Trademarks | 10 Years | |
Customer contracts | 2 Years | |
Customer relationships | 10 Years |
Gains or losses arising from de-recognition of an intangible asset are measured as the difference between the net disposal proceeds and the carrying amount of the asset and are recognized in the Statements of Net Loss and Comprehensive Loss when the asset is derecognized.
The Company reviews the estimates for useful lives on an annual basis, or more frequently if events during the year indicate that a change may be required, with consideration given to technological obsolescence and other relevant business factors. A change in management’s estimate could impact depreciation/amortization expense and the carrying value of property and equipment and intangible assets.
Cost | Goodwill |
Non-
compete agreements |
Brand |
Customer
contracts |
Customer
relationships |
Sub-total
intangibles with finite lives |
Total | |||||||||||||||||||||
Balance September 30, 2019 | $ | 1,881 | $ | 684 | $ | 1,776 | $ | 5,099 | $ | 11,204 | $ | 18,763 | $ | 20,644 | ||||||||||||||
Acquisitions | 3,488 | - | - | - | - | - | 3,488 | |||||||||||||||||||||
Effects of changes in exchange rates | 375 | 49 | 127 | 363 | 799 | 1,338 | 1,713 | |||||||||||||||||||||
Balance March 31, 2020 | $ | 5,744 | $ | 733 | $ | 1,903 | $ | 5,462 | $ | 12,003 | $ | 20,101 | $ | 25,845 |
Non- |
Sub-total
intangibles |
|||||||||||||||||||||||||||
compete | Customer | Customer | with finite | |||||||||||||||||||||||||
Accumulation amortization | Goodwill | agreements | Brand | contracts | relationships | lives | Total | |||||||||||||||||||||
Balance September 30, 2019 | $ | - | $ | 636 | $ | 1,176 | $ | 4,937 | $ | 9,103 | $ | 15,852 | $ | 15,852 | ||||||||||||||
Amortization | - | 22 | 53 | 114 | 217 | 406 | 406 | |||||||||||||||||||||
Effect of changes in exchange rates | - | 48 | 87 | 360 | 663 | 1,158 | 1,158 | |||||||||||||||||||||
Balance March 31, 2020 | - | $ | 706 | $ | 1,316 | $ | 5,411 | $ | 9,983 | $ | 17,416 | $ | 17,416 |
Sub-total | ||||||||||||||||||||||||||||
intangibles | ||||||||||||||||||||||||||||
Net carrying amount | Goodwill |
Non-compete
agreements |
Brand |
Customer
contracts |
Customer
relationships |
with finite
lives |
Total | |||||||||||||||||||||
Balance September 30, 2019 | $ | 1,881 | $ | 48 | $ | 600 | $ | 162 | $ | 2,101 | $ | 2,911 | $ | 4,792 | ||||||||||||||
Balance March 31, 2020 | $ | 5,744 | $ | 27 | $ | 587 | $ | 51 | $ | 2,020 | $ | 2,685 | $ | 8,429 |
Page | 11
PROTECH HOME MEDICAL CORP.
NOTES TO THE CONDENSED
CONSOLIDATED
INTERIM FINANCIAL STATEMENTS
(UNAUDITED)
(Tabular dollar amounts expressed in thousands of Canadian Dollars, except per share amounts)
7. | Debentures and lease liabilities |
Debentures
On March 7, 2019, the Company issued $15,000,000 in 8.0% Convertible Unsecured Debentures due March 7, 2024, with interest payable semi-annually on June 30th and December 30th of each year. Each $1,000 debenture is convertible at the option of the holder into approximately 769.23 common shares. After three years, the Company can force conversion of the outstanding principal at conversion price of $1.30, if the daily volume weighted average price of the common shares exceeds $1.62/share for twenty consecutive trading days. The debenture agreement also allows for payment of cash in lieu of common shares upon exercise of conversion right by the holder, equivalent of the market price on the conversion date.
The debentures contain multiple embedded derivatives including conversion right, forced conversion option and payment in lieu of common shares. Since the Company is unable to measure the fair value of embedded derivatives reliably, it has chosen to designate the convertible debentures in their entirety (including conversion right, forced conversion option and payment in lieu of common shares) to be subsequently measured at fair value through profit or loss (FVTPL).
The debentures are valued at fair value using the current trading price, with the gain in fair market value of $2,549,000 and $1,814,000 has been recorded in the statement of income (loss) and other comprehensive (loss) income for the three and six months ended March 31, 2020, respectively.
During 2014, the Company issued $8,625,000 in unsecured subordinated debentures due December 31, 2019. The debentures were repaid in April 2019 for $8,970,000, including a prepayment premium.
Leases Liabilities
Below is the movement in lease liabilities for the six months ended March 31, 2020:
Monitoring
|
Vehicles |
Right of use
assets – real estate |
Total | |||||||||||||
Balance, September 30, 2019 | $ | 9,675 | $ | 1,934 | $ | - | $ | 11,609 | ||||||||
Additions during the period: | ||||||||||||||||
Adoption of IFRS 16, Leases | - | - | 3,456 | 3,456 | ||||||||||||
Acquisitions | 1,165 | 87 | 1,018 | 2,270 | ||||||||||||
Operations | 5,798 | 675 | 897 | 7,370 | ||||||||||||
Repayments | (7,886 | ) | (424 | ) | (762 | ) | (9,072 | ) | ||||||||
Effect of changes in exchange rates | 487 | 162 | 318 | 967 | ||||||||||||
Balance, March 31, 2020 | $ | 9,239 | $ | 2,434 | $ | 4,927 | $ | 16,600 |
Future payments pursuant to lease liabilities are as follows:
As at
March 31, 2020 |
As at
September 30, 2019 |
|||||||
Less than 1 year | $ | 8,873 | $ | 8,528 | ||||
Between 1 and 5 years | 7,727 | 3,081 | ||||||
More than five years | - | - | ||||||
Total | $ | 16,600 | $ | 11,609 |
Page | 12
PROTECH HOME MEDICAL CORP.
NOTES TO THE CONDENSED
CONSOLIDATED
INTERIM FINANCIAL STATEMENTS
(UNAUDITED)
(Tabular dollar amounts expressed in thousands of Canadian Dollars, except per share amounts)
8. | Share capital |
Bought deal and private placement
On November 2, 2018, the Company completed a bought deal offering of 5,649,600 common shares of the Company at a price of $0.60 per share for gross proceeds to the Company of $3,390,000. Along with this bought deal, the Company also completed a previously announced non-brokered private placement of 1,833,333 common shares to officers and directors at the $0.60 issue price for gross proceeds to the Company of $1,100,000. Issuance costs of $343,000 in cash were incurred. The Company also issued to the underwriter compensation options equal to 6.5% of the offered shares (367,224). Each compensation option is exercisable into one common share of the Company at the issue price for a period of 24 months from the closing of the offering. These shares are recorded as compensation options at $0.60 per share. The fair value of the options has been properly valued using the Black-Scholes option pricing model.
Options
The Company has a stock option plan, which it uses for grants to directors, officers, employees, and consultants. Options granted under the plan are non-assignable and may be granted for a term not exceeding ten years. Stock options generally vest either immediately or quarterly over a two-year period.
A summary of stock options is provided below:
Number of options
(000’s) |
Weighted
average exercise price |
|||||||
Balance September 30, 2019 | 11,759 | $ | 0.52 | |||||
Granted | 100 | 1.10 | ||||||
Exercised | (96 | ) | 0.38 | |||||
Forfeited | (176 | ) | 0.89 | |||||
Balance March 31, 2020 | 11,587 | $ | 0.50 |
At March 31, 2020, the Company had 11,353,742 vested, exercisable stock options with a weighted average exercise price of $0.48.
Stock-based compensation
The Company accounts for stock-based compensation, including stock options, using the fair value method as prescribed by IFRS 2. Under this method, the fair value of stock options at the date of grant is expensed over the vesting period and the offsetting credit is recorded as an increase in contributed surplus.
For the three months ended March 31, 2020 and 2019, the Company recorded stock-based compensation expense of $92,000 and $361,000, respectively.
For the six months ended March 31, 2020 and 2019, the Company recorded stock-based compensation expense of $134,000 and $891,000, respectively.
The fair value of the stock options has been charged to the statement of loss and comprehensive loss and credited to contributed surplus over the proper vesting period, using the Black-Scholes option pricing model calculated using the following assumptions:
Six months ended | Six months ended | |||||||
March 31, 2020 | March 31, 2019 | |||||||
Grant price per share | $ | 1.10 | $ | 0.63 | ||||
Risk-free interest rate | 1.64 | % | 2.24 | % | ||||
Expected volatility | 83.20 | % | 118.17 | % | ||||
Expected life of option | 4 years | 10 years | ||||||
Expected dividend yield | Nil | Nil |
Page | 13
PROTECH HOME MEDICAL CORP.
NOTES TO THE CONDENSED
CONSOLIDATED
INTERIM FINANCIAL STATEMENTS
(UNAUDITED)
(Tabular dollar amounts expressed in thousands of Canadian Dollars, except per share amounts)
9. | Contingencies |
From time to time, the Company is involved in various legal proceedings arising from the ordinary course of business, None of the matters in which the Company is currently involved, either individually, or in the aggregate, is expected to have a material adverse effect on the Company’s consolidated financial position, results of operations, or cash flows.
10. | Selling, general, and administrative |
Three months ended
March 31, 2020 |
Three months ended
March 31, 2019 |
Six months ended
March 31, 2020 |
Six months ended
March 31, 2019 |
|||||||||||||
Payroll and employee benefits | $ | 7,731 | $ | 6,452 | $ | 15,411 | $ | 12,893 | ||||||||
Facilities related expenses | 673 | 803 | 1,346 | 1,708 | ||||||||||||
Bad debt expense | 2,130 | 1,549 | 4,114 | 2,892 | ||||||||||||
Billing | 516 | 437 | 951 | 850 | ||||||||||||
Auto expense | 408 | 273 | 838 | 631 | ||||||||||||
Professional fees | 380 | 480 | 761 | 816 | ||||||||||||
Utilities | 148 | 121 | 299 | 246 | ||||||||||||
Marketing and advertising | 187 | 141 | 407 | 303 | ||||||||||||
Other | 567 | 524 | 1,165 | 984 | ||||||||||||
Total | $ | 12,740 | $ | 10,780 | $ | 25,292 | $ | 21,323 |
11. | Income (Loss) per share |
Income (loss) per common share is calculated using the weighted average number of common shares outstanding during the period. Diluted income (loss) per share amounts are calculated giving effect to the potential dilution that would occur if securities or other contracts to issue common shares were exercised or converted to common shares by assuming the proceeds received from the exercise of stock options and warrants are used to purchase common shares at the prevailing market rate. There is no impact on diluted income (loss) per share because it is antidilutive. For the purpose of income (loss) per common share calculations, the exchangeable Class A common shares of a subsidiary are treated as though they were exchanged.
Income (loss) per share is based on the consolidated income (loss) for the quarter divided by the weighted average number of shares outstanding during the period. Diluted income (loss) per share is computed in accordance with the treasury stock method and based on the weighted average number of shares and dilutive share equivalents.
The following reflects the earnings and share data used in the basic and diluted income (loss) per share computations:
Three months
ended March |
Three months
ended March |
Six months
ended March |
Six months
ended March |
|||||||||||||
31, 2020 | 31, 2019 | 31, 2020 | 31, 2019 | |||||||||||||
Net income (loss) for continuing operations | $ | 2,056 | $ | (591 | ) | $ | 299 | $ | (977 | ) | ||||||
Net income (loss) for discontinued operations | (416 | ) | 61 | (416 | ) | 582 | ||||||||||
Basic weighted average number of shares | 83,567 | 83,530 | 83,623 | 82,176 | ||||||||||||
Diluted weighted average number of shares | 88,496 | 83,530 | 83,623 | 82,176 | ||||||||||||
Basic – continuing operations | $ | 0.02 | $ | (0.01 | ) | $ | 0.00 | $ | (0.01 | ) | ||||||
Diluted – continuing operations | $ | 0.02 | $ | (0.01 | ) | $ | 0.00 | $ | (0.01 | ) | ||||||
Basic – discontinuing operations | $ | (0.00 | ) | $ | 0.00 | $ | (0.00 | ) | $ | 0.01 | ||||||
Diluted - discontinuing operations | $ | (0.00 | ) | $ | 0.00 | $ | (0.00 | ) | $ | 0.01 |
The outstanding stock options for the periods with a net loss were excluded from the calculation of diluted loss per share because their effect is anti-dilutive.
Page | 14
PROTECH HOME MEDICAL CORP.
NOTES TO THE CONDENSED
CONSOLIDATED
INTERIM FINANCIAL STATEMENTS
(UNAUDITED)
(Tabular dollar amounts expressed in thousands of Canadian Dollars, except per share amounts)
12. | Related party transactions |
The Company has entered into six market rate leases for office, warehouse, and retail space with a rental Company affiliated with the Company’s Chief Executive Officer, the majority of which were entered into in 2015. The leases have a combined area of 74,520 square feet. Lease payments under these leases are approximately $68,000 per month, plus taxes, utilities and maintenance.
Payments of $57,000 and $56,000 were made to the members of the Board of Directors for the three months ended March 31, 2020 and 2019, respectively. Payments of $124,000 and $113,000 were made to members of the Board of Directors for the six months ended March 31, 2020 and 2019, respectively.
Key management personnel also participate in the Company’s share option program (see Note 8). The Company paid or accrued compensation to key management personnel the following:
Three months
ended March |
Three months
ended March |
Six months
ended March |
Six months
ended March |
|||||||||||||
31, 2020 | 31, 2019 | 31, 2020 | 31, 2019 | |||||||||||||
Salaries and Benefits | $ | 264 | $ | 766 | $ | 523 | $ | 1,009 | ||||||||
Stock-based compensation | - | 229 | - | 562 | ||||||||||||
Total | $ | 264 | $ | 995 | $ | 523 | $ | 1,571 |
13. | Discontinued Operations |
On July 29, 2019, the Company sold the assets of Patient Home Monitoring, Inc. The consolidated financial statements and the notes reflect the Patient Home Monitoring, Inc. as discontinued operations. Prior year amounts have been reclassified in order to be comparable to the current year presentation, as follows:
Three months
ended March |
Three months
ended March |
Six months
ended March |
Six months
ended March |
|||||||||||||
31, 2020 | 31, 2019 | 31, 2020 | 31, 2019 | |||||||||||||
Revenue | $ | - | $ | 1,088 | $ | - | $ | 2,280 | ||||||||
Cost of revenue | - | 272 | - | 180 | ||||||||||||
Gross margin | $ | - | $ | 816 | $ | - | $ | 2,100 | ||||||||
Expenses: | ||||||||||||||||
Selling, general and administrative | 416 | 624 | 416 | 1,286 | ||||||||||||
Depreciation | - | 131 | - | 232 | ||||||||||||
Net income from discontinued operations | $ | (416 | ) | $ | 61 | $ | (416 | ) | $ | 582 |
Page | 15
Exhibit 99.33
FORM 52-109FV2
CERTIFICATION
OF INTERIM FILINGS
VENTURE ISSUER BASIC CERTIFICATE
I, Gregory Crawford, as Chief Executive Officer of Protech Home Medical Corp., certify the following:
1. Review: I have reviewed the interim financial report and interim MD&A (together, the “interim filings”) of Protech Home Medical Corp. (the “issuer”) for the interim period ended March 31, 2020.
2. No misrepresentations: Based on my knowledge, having exercised reasonable diligence, the interim filings do not contain any untrue statement of a material fact or omit to state a material fact required to be stated or that is necessary to make a statement not misleading in light of the circumstances under which it was made, with respect to the period covered by the interim filings.
3. Fair presentation: Based on my knowledge, having exercised reasonable diligence, the interim financial report together with the other financial information included in the interim filings fairly present in all material respects the financial condition, financial performance and cash flows of the issuer, as of the date of and for the periods presented in the interim filings.
Dated: May 19, 2020
(signed) “Gregory Crawford” | |
Gregory Crawford | |
Chief Executive Officer |
NOTE TO READER
In contrast to the certificate required for non-venture issuers under National Instrument 52-109 Certification of Disclosure in Issuers’ Annual and Interim Filings (NI 52-109), this Venture Issuer Basic Certificate does not include representations relating to the establishment and maintenance of disclosure controls and procedures (DC&P) and internal control over financial reporting (ICFR), as defined in NI 52-109. In particular, the certifying officers filing this certificate are not making any representations relating to the establishment and maintenance of
i. | controls and other procedures designed to provide reasonable assurance that information required to be disclosed by the issuer in its annual filings, interim filings or other reports filed or submitted under securities legislation is recorded, processed, summarized and reported within the time periods specified in securities legislation; and |
ii. | a process to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with the issuer’s GAAP. |
The issuer’s certifying officers are responsible for ensuring that processes are in place to provide them with sufficient knowledge to support the representations they are making in this certificate. Investors should be aware that inherent limitations on the ability of certifying officers of a venture issuer to design and implement on a cost effective basis DC&P and ICFR as defined in NI 52-109 may result in additional risks to the quality, reliability, transparency and timeliness of interim and annual filings and other reports provided under securities legislation.
Exhibit 99.34
FORM 52-109FV2
CERTIFICATION
OF INTERIM FILINGS
VENTURE ISSUER BASIC CERTIFICATE
I, Hardik Mehta, as Chief Financial Officer of Protech Home Medical Corp., certify the following:
1. Review: I have reviewed the interim financial report and interim MD&A (together, the “interim filings”) of Protech Home Medical Corp. (the “issuer”) for the interim period ended March 31, 2020.
2. No misrepresentations: Based on my knowledge, having exercised reasonable diligence, the interim filings do not contain any untrue statement of a material fact or omit to state a material fact required to be stated or that is necessary to make a statement not misleading in light of the circumstances under which it was made, with respect to the period covered by the interim filings.
3. Fair presentation: Based on my knowledge, having exercised reasonable diligence, the interim financial report together with the other financial information included in the interim filings fairly present in all material respects the financial condition, financial performance and cash flows of the issuer, as of the date of and for the periods presented in the interim filings.
Dated: May 19, 2020
(signed) “Hardik Mehta” | |
Hardik Mehta | |
Chief Financial Officer |
NOTE TO READER
In contrast to the certificate required for non-venture issuers under National Instrument 52-109 Certification of Disclosure in Issuers’ Annual and Interim Filings (NI 52-109), this Venture Issuer Basic Certificate does not include representations relating to the establishment and maintenance of disclosure controls and procedures (DC&P) and internal control over financial reporting (ICFR), as defined in NI 52-109. In particular, the certifying officers filing this certificate are not making any representations relating to the establishment and maintenance of
i. | controls and other procedures designed to provide reasonable assurance that information required to be disclosed by the issuer in its annual filings, interim filings or other reports filed or submitted under securities legislation is recorded, processed, summarized and reported within the time periods specified in securities legislation; and |
ii. | a process to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with the issuer’s GAAP. |
The issuer’s certifying officers are responsible for ensuring that processes are in place to provide them with sufficient knowledge to support the representations they are making in this certificate. Investors should be aware that inherent limitations on the ability of certifying officers of a venture issuer to design and implement on a cost effective basis DC&P and ICFR as defined in NI 52-109 may result in additional risks to the quality, reliability, transparency and timeliness of interim and annual filings and other reports provided under securities legislation.
Exhibit 99.35
PROTECH HOME MEDICAL ANNOUNCES COMMENCEMENT OF TRADING ON THE OTCQX® BEST MARKET IN THE UNITED STATES
Cincinnati, Ohio – June 2, 2020 – Protech Home Medical Corp. (“Protech” or the “Company”) (TSXV: PTQ) (OTCQX: PTQQF), a healthcare services company with operations in the U.S., today announced that it has qualified to trade on the OTCQX® Best Market.
The common shares of Protech will commence trading at the open today on OTCQX under the symbol “PTQQF.” U.S. investors can find current financial disclosure and Real-Time Level 2 quotes for the company on www.otcmarkets.com.
The OTCQX Best Market provides value and convenience to U.S. investors, brokers and institutions seeking to trade PTQQF. The OTCQX Best Market is OTC Markets Group's premier market for established, investor-focused U.S. and international companies. Trading on the OTCQX Market is intended to offer companies efficient, cost-effective access to the U.S. capital markets. For companies listed on a qualified international exchange, streamlined market standards enable them to utilize their home market reporting to make their information available in the U.S. To qualify for OTCQX, companies must also meet high financial standards, follow best practice corporate governance, and demonstrate compliance with applicable securities laws.
Information relating to the Company, including copies of the Company’s financial statements, are available on SEDAR at www.sedar.com.
“We are extremely proud to announce the commencement of trading on the OTCQX Best Market,” said Greg Crawford, CEO and Chairman of Protech. “This is a true milestone for our Company, and we are thrilled to have a foundation in which we can share our long-term vision for Protech with a wider pool of retail and institutional shareholders throughout the United States. We firmly believe that cross-trading on OTCQX in the U.S. is vital for a company headquartered in the U.S. and deriving 100% of its revenue from U.S. customers. I believe this is the first step towards fulfilling our ambitions of a dual listing on the NASDAQ or NYSE.”
Protech’s Chief Financial Officer, Hardik Mehta added, “We are in the process of obtaining DTC eligibility, and will keep our shareholders updated when this process is concluded. DTC eligibility would simplify the process for investors and brokers trading and exchanging our stock in the United States, which will be of significant benefit to our current and future shareholders. I also expect that being DTC eligible will improve our overall liquidity over time and help to accelerate the broadening of our shareholder base in North America over time.”
“We are pleased to welcome Protech Home Medical to the OTCQX Best Market,” said Jason Paltrowitz, EVP of Corporate Services at OTC Markets Group. “I believe that trading on the TSX Venture Exchange in Canada and on the OTCQX Market in the U.S. will enable Protech Home Medical to more efficiently build global investor awareness. We look forward to supporting the company and its shareholders.”
Protech provides home delivery and efficient online set-up of equipment for, primarily, chronic conditions. The Company, based in the United States, operates out of 42 locations in 10 states with over 17,000 referring physicians and approximately 85,000 current active patients.
Protech is also pleased to advise that B. Riley FBR, Inc. acted as its OTCQX sponsor. B. Riley FBR, is a full-service investment bank and subsidiary of B. Riley Financial, Inc. B. Riley FBR, based in Los Angeles with offices across the United States, provides corporate finance, research, sales and trading services.
ABOUT PROTECH HOME MEDICAL
The Company provides in-home monitoring and disease management services including end-to-end respiratory solutions for patients in the United States healthcare market. It seeks to continue to expand its offerings to include the management of several chronic disease states focusing on patients with heart or pulmonary disease, sleep disorders, reduced mobility and other chronic health conditions. The primary business objective of the Company is to create shareholder value by offering a broader range of services to patients in need of in-home monitoring and chronic disease management. The Company’s organic growth strategy is to increase annual revenue per patient by offering multiple services to the same patient, consolidating the patient’s services and making life easier for the patient.
Forward-Looking Statements
Certain statements contained in this press release constitute "forward-looking information" as such term is defined in applicable Canadian securities legislation. The words "may", "would", "could", "should", "potential", "will", "seek", "intend", "plan", "anticipate", "believe", "estimate", "expect" and similar expressions as they relate to the Company, including: a dual listing; obtaining DTC eligibility and the intended benefits of DTC eligibility; are intended to identify forward-looking information. All statements other than statements of historical fact may be forward-looking information. Such statements reflect the Company's current views and intentions with respect to future events, and current information available to the Company, and are subject to certain risks, uncertainties and assumptions, including, without limitation: the Company meeting all of the conditions for obtaining DTC eligibility. Many factors could cause the actual results, performance or achievements that may be expressed or implied by such forward-looking information to vary from those described herein should one or more of these risks or uncertainties materialize. Examples of such risk factors include, without limitation: credit; market (including equity, commodity, foreign exchange and interest rate); liquidity; operational (including technology and infrastructure); reputational; insurance; strategic; regulatory; legal; environmental; capital adequacy; the general business and economic conditions in the regions in which the Company operates; the ability of the Company to execute on key priorities, including the successful completion of acquisitions, business retention, and strategic plans and to attract, develop and retain key executives; difficulty integrating newly acquired businesses; the ability to implement business strategies and pursue business opportunities; low profit market segments; disruptions in or attacks (including cyber-attacks) on the Company's information technology, internet, network access or other voice or data communications systems or services; the evolution of various types of fraud or other criminal behavior to which the Company is exposed; the failure of third parties to comply with their obligations to the Company or its affiliates; the impact of new and changes to, or application of, current laws and regulations; decline of reimbursement rates; dependence on few payors; possible new drug discoveries; a novel business model; dependence on key suppliers; granting of permits and licenses in a highly regulated business; the overall difficult litigation environment, including in the U.S.; increased competition; changes in foreign currency rates; increased funding costs and market volatility due to market illiquidity and competition for funding; the availability of funds and resources to pursue operations; critical accounting estimates and changes to accounting standards, policies, and methods used by the Company; the occurrence of natural and unnatural catastrophic events and claims resulting from such events; and risks related to COVID-19 including various recommendations, orders and measures of governmental authorities to try to limit the pandemic, including travel restrictions, border closures, non-essential business closures, quarantines, self-isolations, shelters-in-place and social distancing, disruptions to markets, economic activity, financing, supply chains and sales channels, and a deterioration of general economic conditions including a possible national or global recession; as well as those risk factors discussed or referred to in the Company’s disclosure documents filed with the securities regulatory authorities in certain provinces of Canada and available at www.sedar.com. Should any factor affect the Company in an unexpected manner, or should assumptions underlying the forward-looking information prove incorrect, the actual results or events may differ materially from the results or events predicted. Any such forward-looking information is expressly qualified in its entirety by this cautionary statement. Moreover, the Company does not assume responsibility for the accuracy or completeness of such forward-looking information. The forward-looking information included in this press release is made as of the date of this press release and the Company undertakes no obligation to publicly update or revise any forward-looking information, other than as required by applicable law.
Neither the TSX Venture Exchange nor its Regulation Services Provider (as that term is defined in the policies of the TSX Venture Exchange) accepts responsibility for the adequacy or accuracy of this release.
For further information please visit our website at www.protechhomemedical.com, or contact:
Cole Stevens
VP of Investor Relations
Protech Home Medical Corp.
859-300-6455
cole.stevens@myphm.com
Gregory Crawford
Chief Executive Officer
Protech Home Medical Corp.
859-300-6455
investorinfo@myphm.com
Exhibit 99.36
PROTECH HOME MEDICAL ANNOUNCES $25 MILLION BOUGHT DEAL OFFERING
NOT FOR DISTRIBUTION TO UNITED STATES
NEWS WIRE SERVICES OR FOR DISSEMINATION
IN THE UNITED STATES
Cincinnati, Ohio – June 2, 2020 – Protech Home Medical Corp. (the “Company”) (TSXV: PTQ) (OTCQX: PTQQF) is pleased to announce that it has entered into an agreement with a syndicate of underwriters (the “Underwriters”) co-led by Beacon Securities Limited (“Beacon”), as sole bookrunner, and Canaccord Genuity Corp. The Underwriters have agreed to purchase, on a bought deal basis pursuant to the filing of a short form prospectus, an aggregate of 21,740,000 units (the “Units”) at a price of $1.15 per Unit (the “Issue Price”) for aggregate gross proceeds to the Company of $25,001,000 (the “Offering”).
Each Unit shall consist of one common share of the Company (a “Common Share”) and one-half of one common share purchase warrant of the Company (each whole warrant, a “Warrant”). Each Warrant will be exercisable to acquire one Common Share for a period of 12 months following the closing of the Offering at an exercise price of $1.60 per share.
The Company has granted the Underwriters an option (the "Over-Allotment Option"), exercisable in whole or in part and from time to time, at any time until 30 days after the closing date of the Offering, to purchase up to an additional number of Units equal to 15% of the number of Units sold pursuant to the Offering at the Issue Price. The Over-Allotment Option is exercisable to acquire Units, Common Shares and/or Warrants (or any combination thereof) at the discretion of the Underwriters.
The Company intends to use the proceeds of the Offering for working capital and general corporate purposes. The Offering is expected to close on or about June 23, 2020 and is subject to certain closing conditions including, but not limited to, the receipt of all necessary regulatory and stock exchange approvals, including the approval of the TSX Venture Exchange and the applicable securities regulatory authorities.
The Units will be offered by way of a short form prospectus to be filed in British Columbia, Alberta and Ontario (and such other provinces as the Company and Beacon may agree), and may be offered in the United States to Qualified Institutional Buyers (as defined in Rule 144A under the United States Securities Act of 1933, as amended (the "1933 Act")) by way of private placement pursuant to an exemption from the registration requirements of the 1933 Act, or under other exemptions from the registration requirement that are available under the 1933 Act, and pursuant to any applicable securities laws of any state of the United States. The Units may also be sold in such other jurisdictions as the Company and Beacon may agree.
The securities referred to in this news release have not been, nor will they be, registered under the 1933 Act and may not be offered or sold within the United States or to, or for the account or benefit of, U.S. persons absent U.S. registration or an applicable exemption from the U.S. registration requirements. This press release does not constitute an offer for sale of securities, nor a solicitation for offers to buy any securities in the United States, nor in any other jurisdiction in which such offer, solicitation or sale would be unlawful. Any public offering of securities in the United States must be made by means of a prospectus containing detailed information about the company and management, as well as financial statements.
ABOUT PROTECH HOME MEDICAL CORP.
The Company provides in-home monitoring and disease management services including end-to-end respiratory solutions for patients in the United States healthcare market. It seeks to continue to expand its offerings to include the management of several chronic disease states focusing on patients with heart or pulmonary disease, sleep disorders, reduced mobility and other chronic health conditions. The primary business objective of the Company is to create shareholder value by offering a broader range of services to patients in need of in-home monitoring and chronic disease management. The Company’s organic growth strategy is to increase annual revenue per patient by offering multiple services to the same patient, consolidating the patient’s services and making life easier for the patient.
Forward-Looking Statements
Certain statements contained in this press release constitute "forward-looking information" as such term is defined in applicable Canadian securities legislation. The words "may", "would", "could", "should", "potential", "will", "seek", "intend", "plan", "anticipate", "believe", "estimate", "expect" and similar expressions as they relate to the Company, including: the Offering, the use of the net proceeds from the Offering, the timing and ability of the Company to close the Offering, if at all, the number of Units offered or sold, the gross proceeds of the Offering, the timing and ability of the Company to obtain all necessary approvals, if at all, and the terms and jurisdictions of the Offering; are intended to identify forward-looking information. All statements other than statements of historical fact may be forward-looking information. Such statements reflect the Company's current views and intentions with respect to future events, and current information available to the Company, and are subject to certain risks, uncertainties and assumptions, including, without limitation: the timing and ability of the Company to close the Offering and to obtain all necessary approvals, if at all. Many factors could cause the actual results, performance or achievements that may be expressed or implied by such forward-looking information to vary from those described herein should one or more of these risks or uncertainties materialize. Examples of such risk factors include, without limitation: credit; market (including equity, commodity, foreign exchange and interest rate); liquidity; operational (including technology and infrastructure); reputational; insurance; strategic; regulatory; legal; environmental; capital adequacy; the general business and economic conditions in the regions in which the Company operates; the ability of the Company to execute on key priorities, including the successful completion of acquisitions, business retention, and strategic plans and to attract, develop and retain key executives; difficulty integrating newly acquired businesses; the ability to implement business strategies and pursue business opportunities; low profit market segments; disruptions in or attacks (including cyber-attacks) on the Company's information technology, internet, network access or other voice or data communications systems or services; the evolution of various types of fraud or other criminal behavior to which the Company is exposed; the failure of third parties to comply with their obligations to the Company or its affiliates; the impact of new and changes to, or application of, current laws and regulations; decline of reimbursement rates; dependence on few payors; possible new drug discoveries; a novel business model; dependence on key suppliers; granting of permits and licenses in a highly regulated business; the overall difficult litigation environment, including in the U.S.; increased competition; changes in foreign currency rates; increased funding costs and market volatility due to market illiquidity and competition for funding; the availability of funds and resources to pursue operations; critical accounting estimates and changes to accounting standards, policies, and methods used by the Company; the occurrence of natural and unnatural catastrophic events and claims resulting from such events; and risks related to COVID-19 including various recommendations, orders and measures of governmental authorities to try to limit the pandemic, including travel restrictions, border closures, non- essential business closures, quarantines, self-isolations, shelters-in-place and social distancing, disruptions to markets, economic activity, financing, supply chains and sales channels, and a deterioration of general economic conditions including a possible national or global recession; as well as those risk factors discussed or referred to in the Company’s disclosure documents filed with the securities regulatory authorities in certain provinces of Canada and available at www.sedar.com. Should any factor affect the Company in an unexpected manner, or should assumptions underlying the forward-looking information prove incorrect, the actual results or events may differ materially from the results or events predicted. Any such forward-looking information is expressly qualified in its entirety by this cautionary statement. Moreover, the Company does not assume responsibility for the accuracy or completeness of such forward-looking information. The forward-looking information included in this press release is made as of the date of this press release and the Company undertakes no obligation to publicly update or revise any forward-looking information, other than as required by applicable law.
Neither the TSX Venture Exchange nor its Regulation Services Provider (as that term is defined in the policies of the TSX Venture Exchange) accepts responsibility for the adequacy or accuracy of this release.
For further information please visit our website at www.protechhomemedical.com, or contact: Cole Stevens
VP of Investor Relations
Protech Home Medical Corp.
859-300-6455
cole.stevens@myphm.com
Gregory Crawford
Chief Executive Officer
Protech Home Medical Corp.
859-300-6455
investorinfo@myphm.com
Exhibit 99.37
FORM 51-102F3
MATERIAL CHANGE REPORT
1. | Name and Address of Company |
Protech Home Medical Corp. (the “Corporation”)
1019 Town Drive
Wilder, Kentucky 41076
2. | Date of Material Change |
June 2, 2020
3. | News Release |
A news release with respect to the material change referred to in this report was disseminated on June 2, 2020 through Canada NewsWire and filed on the system for electronic document analysis and retrieval (SEDAR).
4. | Summary of Material Change |
The Corporation entered into an agreement with a syndicate of underwriters (collectively, the “Underwriters”) co-led by Beacon Securities Limited, as sole bookrunner, and Canaccord Genuity Corp. The Underwriters agreed to purchase, on a bought deal basis, pursuant to the filing of a short form prospectus, an aggregate of 21,740,000 units (the “Units”) at a price of $1.15 per Unit (the “Issue Price”) for aggregate gross proceeds to the Corporation of $25,001,000 (the “Offering”).
Each Unit consists of one common share of the Corporation (a “Common Share”) and one-half of one Common Share purchase warrant of the Corporation (each whole warrant, a “Warrant”). Each Warrant will be exercisable to acquire one Common Share for a period of 12 months following the closing of the Offering at an exercise price of $1.60 per share.
The Corporation granted the Underwriters an option (the “Over-Allotment Option”), exercisable in whole or in part and from time to time, at any time until 20 days after the closing date of the Offering, to purchase up to an additional number of Units equal to 15% of the number of Units sold pursuant to the Offering at the Issue Price. The Over-Allotment Option is exercisable to acquire Units, Common Shares and/or Warrants (or any combination thereof) at the discretion of the Underwriters.
5. | Full Description of Material Change |
5.1 | Full Description of Material Change |
The material change is fully described in the news releases attached hereto.
5.2 | Disclosure for Restructuring Transactions |
Not applicable.
6. | Reliance on Subsection 7.1(2) of Regulation 51-102 |
Not applicable.
7. | Omitted Information |
Not applicable.
8. | Executive Officer |
For additional information, please contact Hardik Mehta, Chief Financial Officer of the Corporation, at 859-202-3085.
9. | Date of Report |
June 4, 2020.
PROTECH HOME MEDICAL ANNOUNCES $25 MILLION BOUGHT DEAL OFFERING
NOT FOR DISTRIBUTION TO UNITED STATES NEWS WIRE SERVICES OR FOR DISSEMINATION IN THE UNITED STATES
Cincinnati, Ohio – June 2, 2020 – Protech Home Medical Corp. (the “Company”) (TSXV: PTQ) (OTCQX: PTQQF) is pleased to announce that it has entered into an agreement with a syndicate of underwriters (the “Underwriters”) co-led by Beacon Securities Limited (“Beacon”), as sole bookrunner, and Canaccord Genuity Corp. The Underwriters have agreed to purchase, on a bought deal basis pursuant to the filing of a short form prospectus, an aggregate of 21,740,000 units (the “Units”) at a price of $1.15 per Unit (the “Issue Price”) for aggregate gross proceeds to the Company of $25,001,000 (the “Offering”).
Each Unit shall consist of one common share of the Company (a “Common Share”) and one-half of one common share purchase warrant of the Company (each whole warrant, a “Warrant”). Each Warrant will be exercisable to acquire one Common Share for a period of 12 months following the closing of the Offering at an exercise price of $1.60 per share.
The Company has granted the Underwriters an option (the "Over-Allotment Option"), exercisable in whole or in part and from time to time, at any time until 30 days after the closing date of the Offering, to purchase up to an additional number of Units equal to 15% of the number of Units sold pursuant to the Offering at the Issue Price. The Over-Allotment Option is exercisable to acquire Units, Common Shares and/or Warrants (or any combination thereof) at the discretion of the Underwriters.
The Company intends to use the proceeds of the Offering for working capital and general corporate purposes. The Offering is expected to close on or about June 23, 2020 and is subject to certain closing conditions including, but not limited to, the receipt of all necessary regulatory and stock exchange approvals, including the approval of the TSX Venture Exchange and the applicable securities regulatory authorities.
The Units will be offered by way of a short form prospectus to be filed in British Columbia, Alberta and Ontario (and such other provinces as the Company and Beacon may agree), and may be offered in the United States to Qualified Institutional Buyers (as defined in Rule 144A under the United States Securities Act of 1933, as amended (the "1933 Act")) by way of private placement pursuant to an exemption from the registration requirements of the 1933 Act, or under other exemptions from the registration requirement that are available under the 1933 Act, and pursuant to any applicable securities laws of any state of the United States. The Units may also be sold in such other jurisdictions as the Company and Beacon may agree.
The securities referred to in this news release have not been, nor will they be, registered under the 1933 Act and may not be offered or sold within the United States or to, or for the account or benefit of, U.S. persons absent U.S. registration or an applicable exemption from the U.S. registration requirements. This press release does not constitute an offer for sale of securities, nor a solicitation for offers to buy any securities in the United States, nor in any other jurisdiction in which such offer, solicitation or sale would be unlawful. Any public offering of securities in the United States must be made by means of a prospectus containing detailed information about the company and management, as well as financial statements.
ABOUT PROTECH HOME MEDICAL CORP.
The Company provides in-home monitoring and disease management services including end-to-end respiratory solutions for patients in the United States healthcare market. It seeks to continue to expand its offerings to include the management of several chronic disease states focusing on patients with heart or pulmonary disease, sleep disorders, reduced mobility and other chronic health conditions. The primary business objective of the Company is to create shareholder value by offering a broader range of services to patients in need of in-home monitoring and chronic disease management. The Company’s organic growth strategy is to increase annual revenue per patient by offering multiple services to the same patient, consolidating the patient’s services and making life easier for the patient.
Forward-Looking Statements
Certain statements contained in this press release constitute "forward-looking information" as such term is defined in applicable Canadian securities legislation. The words "may", "would", "could", "should", "potential", "will", "seek", "intend", "plan", "anticipate", "believe", "estimate", "expect" and similar expressions as they relate to the Company, including: the Offering, the use of the net proceeds from the Offering, the timing and ability of the Company to close the Offering, if at all, the number of Units offered or sold, the gross proceeds of the Offering, the timing and ability of the Company to obtain all necessary approvals, if at all, and the terms and jurisdictions of the Offering; are intended to identify forward-looking information. All statements other than statements of historical fact may be forward-looking information. Such statements reflect the Company's current views and intentions with respect to future events, and current information available to the Company, and are subject to certain risks, uncertainties and assumptions, including, without limitation: the timing and ability of the Company to close the Offering and to obtain all necessary approvals, if at all. Many factors could cause the actual results, performance or achievements that may be expressed or implied by such forward-looking information to vary from those described herein should one or more of these risks or uncertainties materialize. Examples of such risk factors include, without limitation: credit; market (including equity, commodity, foreign exchange and interest rate); liquidity; operational (including technology and infrastructure); reputational; insurance; strategic; regulatory; legal; environmental; capital adequacy; the general business and economic conditions in the regions in which the Company operates; the ability of the Company to execute on key priorities, including the successful completion of acquisitions, business retention, and strategic plans and to attract, develop and retain key executives; difficulty integrating newly acquired businesses; the ability to implement business strategies and pursue business opportunities; low profit market segments; disruptions in or attacks (including cyber-attacks) on the Company's information technology, internet, network access or other voice or data communications systems or services; the evolution of various types of fraud or other criminal behavior to which the Company is exposed; the failure of third parties to comply with their obligations to the Company or its affiliates; the impact of new and changes to, or application of, current laws and regulations; decline of reimbursement rates; dependence on few payors; possible new drug discoveries; a novel business model; dependence on key suppliers; granting of permits and licenses in a highly regulated business; the overall difficult litigation environment, including in the U.S.; increased competition; changes in foreign currency rates; increased funding costs and market volatility due to market illiquidity and competition for funding; the availability of funds and resources to pursue operations; critical accounting estimates and changes to accounting standards, policies, and methods used by the Company; the occurrence of natural and unnatural catastrophic events and claims resulting from such events; and risks related to COVID-19 including various recommendations, orders and measures of governmental authorities to try to limit the pandemic, including travel restrictions, border closures, non- essential business closures, quarantines, self-isolations, shelters-in-place and social distancing, disruptions to markets, economic activity, financing, supply chains and sales channels, and a deterioration of general economic conditions including a possible national or global recession; as well as those risk factors discussed or referred to in the Company’s disclosure documents filed with the securities regulatory authorities in certain provinces of Canada and available at www.sedar.com. Should any factor affect the Company in an unexpected manner, or should assumptions underlying the forward-looking information prove incorrect, the actual results or events may differ materially from the results or events predicted. Any such forward-looking information is expressly qualified in its entirety by this cautionary statement. Moreover, the Company does not assume responsibility for the accuracy or completeness of such forward-looking information. The forward-looking information included in this press release is made as of the date of this press release and the Company undertakes no obligation to publicly update or revise any forward-looking information, other than as required by applicable law.
Neither the TSX Venture Exchange nor its Regulation Services Provider (as that term is defined in the policies of the TSX Venture Exchange) accepts responsibility for the adequacy or accuracy of this release.
For further information please visit our website at www.protechhomemedical.com, or contact:
Cole Stevens
VP of Investor Relations
Protech Home Medical Corp.
859-300-6455
cole.stevens@myphm.com
Gregory Crawford
Chief Executive Officer
Protech Home Medical Corp.
859-300-6455
investorinfo@myphm.com
Exhibit 99.38
UNDERWRITING AGREEMENT
June 8, 2020
Protech Home Medical Corp.
1019 Town Drive
Wilder, Kentucky 41076
Attention: Mr. Gregory Crawford, Chairman and Chief Executive Officer
Dear Sir:
We understand that Protech Home Medical Corp. ("Protech" or the "Company") intends to issue and sell 21,740,000 units (the "Offered Units"), consisting of one common share in the capital of Protech (a "Common Share"), and one half of one Common Share purchase warrant (each full warrant, a "Warrant") at a price (the "Offer Price") of $1.15 per Offered Unit for aggregate gross proceeds of $25,001,000 (the "Offering"). Each Warrant will entitle the holder thereof to purchase one Common Share (a "Warrant Share") for a period of 12 months after the Closing Date (as defined below) at an exercise price of $1.60.
We also understand that the Company intends to issue and sell, at the option of the Underwriters (as defined below), up to an additional 15% of the Offering (the "Over-Allotment Option") at the Offer Price for additional gross proceeds of up to $3,750,150, for a period of 30 days following the Closing Date upon the terms and conditions set forth herein. The Underwriters may elect to exercise the Over-Allotment Option, in whole or in part, for additional Offered Units only, Common Shares only, or Warrants only, or any combination thereof (collectively, the "Over-Allotment Securities"). The Offered Units and the Over-Allotment Securities are collectively referred to herein as the "Offered Securities".
We also understand that the Company is eligible and prepared to file, concurrently with the execution of this agreement (the "Underwriting Agreement"), a preliminary short form prospectus dated the date hereof (in the English language) (the "Preliminary Prospectus"), and all other necessary documents required to obtain a decision document issued by the BCSC (as defined below), as principal regulator, evidencing that a receipt (or deemed receipt) has been issued for the Preliminary Prospectus in each of the Qualifying Jurisdictions (as defined below). The Underwriters also understand that the Company shall prepare and file within the time limits and on the terms set out below, a (final) short form prospectus (in the English language) (the "Final Prospectus"), and all other necessary documents in order to qualify the Offered Securities for distribution to the public in each of the Qualifying Jurisdictions.
The Offered Securities may be distributed in the Provinces of British Columbia, Alberta and Ontario (and such other provinces as may be agreed between the Company and the Underwriters) by the Underwriters pursuant to the Final Prospectus. Offers and sales of Offered Securities to, or for the account or benefit of, persons in the United States (as defined below) or to, or for the account or benefit of, U.S. Persons (as defined below), may be made by the Underwriters, acting through their U.S. Affiliates (as defined below), in compliance with Schedule "A" hereto, (i) to Qualified Institutional Buyers (as defined below) in accordance with Rule 144A (as defined below) under the U.S. Securities Act (as defined below), and (ii) to Institutional Accredited Investors (as defined below) in accordance with Rule 506(b) of Regulation D under the U.S. Securities Act, and, in each case, in compliance with similar exemptions under applicable state securities laws. With respect to the Offered Securities to be sold to Qualified Institutional Buyers in compliance with Rule 144A, the Underwriters, or their U.S. Affiliates, shall purchase such Offered Securities from the Company for resale in compliance with Rule 144A. Although this Underwriting Agreement is presented on behalf of the Underwriters as purchasers, the Underwriters may arrange for substituted purchasers (the "Substituted Purchasers") for the Offered Securities in connection with private placements of such securities to Institutional Accredited Investors in accordance with Rule 506(b) of Regulation D under the U.S. Securities Act. Each Substituted Purchaser shall purchase Offered Securities directly from the Company at the Offer Price, and to the extent that Substituted Purchasers purchase Offered Securities, the obligations of the Underwriters to do so will be reduced by the number of Offered Securities purchased by the Substituted Purchasers directly from the Company. Any reference in this Underwriting Agreement hereafter to "purchasers" shall be taken to be a reference to the Underwriters, as the initial committed purchasers, and to the Substituted Purchasers, if any. Subject to Applicable Securities Laws (as defined below) and the terms of this Underwriting Agreement, the Offered Securities may also be distributed outside of Canada and the United States in each jurisdiction where they may be lawfully sold by the Underwriters without: (a) giving rise to any requirement under the laws of such jurisdiction to prepare and/or file a prospectus, registration statement or document having similar effect; or (b) creating any ongoing compliance or continuous disclosure obligations for the Company pursuant to the laws of such jurisdiction.
- 2 -
Based upon and subject to the terms and conditions set out below, (a) Beacon Securities Limited and Canaccord Genuity Corp. (as co-lead underwriters, collectively, the "Co-Lead Underwriters") and Echelon Wealth Partners Inc., Stifel Nicolaus Canada Inc., Industrial Alliance Securities Inc. and M Partners Inc. (collectively with the Co-Lead Underwriters, the "Underwriters" and individually an "Underwriter"), hereby severally (and not jointly nor jointly and severally), offer to purchase from the Company in the respective percentages set out in Section 17 of this Underwriting Agreement, and the Company hereby agrees to sell to the Underwriters all, but not less than all, of the Offered Units at the Offer Price per Offered Unit, and (b) in the event and to the extent the Over-Allotment Option granted to the Underwriters pursuant to Section 11 of this Underwriting Agreement is exercised by the Underwriters, the Company agrees to sell to each of the Underwriters, and each of the Underwriters agrees severally (and not jointly nor jointly and severally) to purchase from the Company the respective percentage of the Over-Allotment Securities, as applicable, set forth opposite the name of such Underwriter in Section 17 of this Underwriting Agreement at the applicable offer price per Over-Allotment Security set forth in Section 11.
Concurrent with the Offering, the Company will, on or prior to the Closing Date, enter into subscription agreements pursuant to which certain purchasers will agree to purchase, on a brokered, private placement basis pursuant to exemptions from the prospectus requirements under Canadian Securities Laws and pursuant to the exclusion from registration requirements of the U.S. Securities Act provided by Rule 903 of Regulation S thereunder, an aggregate of up to 1,750,000 additional Offered Units at the Offer Price for aggregate gross proceeds of up to approximately $2,012,500 (the "Concurrent Private Placement"). Subject to obtaining regulatory approval, the closing of the Concurrent Private Placement is expected to occur concurrently with the closing of the Offering. Closing of the Offering is not conditional upon the closing of the Concurrent Private Placement.
In addition, concurrent with the Offering, the Company will, on or prior to the Closing Date, enter into subscription agreements pursuant to which certain persons in the United States or U.S. Persons will agree to purchase, on a non-brokered, private placement basis pursuant to the exemption from the registration requirements of the U.S. Securities Act provided by Rule 506(b) of Regulation D thereunder, an aggregate of up to 927,826 additional Offered Units at the Offer Price for aggregate gross proceeds of up to approximately $1,067,000 (the "Concurrent Non-Brokered Private Placement", and together with the Concurrent Private Placement, the "Private Placements"). Subject to obtaining regulatory approval, the closing of the Concurrent Non-Brokered Private Placement is expected to occur concurrently with the closing of the Offering. Closing of the Offering is not conditional upon the closing of the Concurrent Non-Brokered Private Placement.
- 3 -
The Prospectuses do not qualify any securities issued under the Private Placements. The Offered Units to be issued under the Private Placements will be subject to a statutory hold period lasting four months and one day following the closing of the respective Private Placements. The Company will pay to the Underwriters a cash fee equal to 5.5% of the gross proceeds raised under the Concurrent Private Placement, together with such number of non-transferable compensation options (the "Private Placement Compensation Options") equal to 5.5% of the Offered Units sold pursuant to the Concurrent Private Placement. Each Private Placement Compensation Option is exercisable to acquire one Common Share at the Offer Price at any time prior to 4:00 p.m. (Toronto time) on the date that is two years following the Closing Date. No fees or other compensation will be payable to, and no compensation options will be issued to, the Underwriters in connection with the Concurrent Non-Brokered Private Placement.
The Underwriters and the Company acknowledge that Schedule "A" and Schedule "B" form part of this Underwriting Agreement.
The following are the terms and conditions of the agreement between the Company and the Underwriters:
TERM AND CONDITIONS
1. | Definitions and Interpretation |
(1) | In this Underwriting Agreement: |
"affiliate", "associate", "material change", "material fact" and "misrepresentation" have the respective meanings ascribed thereto in the Securities Act (Ontario);
"Ancillary Documents" means all agreements, certificates and documents executed and delivered, or to be executed and delivered, by the Company in connection with the transactions contemplated by this Underwriting Agreement;
"Applicable Anti-Corruption Laws and Regulations" has the meaning given to that term in Section 7(1)(kk);
"Applicable Laws" means, in relation to any Person or Persons, all regulations, statutory rules, orders, by-laws, codes, ordinances, decrees, the terms and conditions of any grant of approval, permission, authority or licence, or any judgment, order, decision, ruling, award, policy or guideline, of any Governmental Authority that are applicable to such person or persons or its or their business, undertaking, property or securities and emanate from a Governmental Authority, having jurisdiction over the Person or Persons or its or their business, undertaking, property or securities;
"Applicable Securities Laws" means the Canadian Securities Laws and the U.S. Securities Laws;
"BCSC" means the British Columbia Securities Commission;
"Beacon" means Beacon Securities Limited;
"Bid Letter" means the letter agreement dated June 2, 2020, for the purchase of the Offered Units, between the Company and Beacon;
"Business Day" means any day other than a Saturday, Sunday or statutory or civic holiday in the city of Toronto, Ontario;
"Canadian Securities Laws" means, collectively, all applicable securities laws of each of the Qualifying Jurisdictions and the respective rules and regulations under such laws together with applicable published fee schedules, prescribed forms, policy statements, notices, orders, blanket rulings and other regulatory instruments of the securities regulatory authorities in the Qualifying Jurisdictions;
- 4 -
"Closing Date" means June 23, 2020, or any such other date as may be agreed to by the Company and the Co-Lead Underwriters, each acting reasonably;
"CMS" has the meaning given to that term in Section 7(1)(qq)(iii);
"Co-Lead Underwriters" has the meaning given to that term in the fifth paragraph of this Underwriting Agreement;
"Common Shares" has the meaning given to that term in the first paragraph of this Underwriting Agreement;
"Company Financial Information" means (i) the audited financial statements of the Company as at, and for the years ended September, 2019 and 2018, together with the auditor's report thereon and the notes thereto; and (ii) the unaudited financial statements of the Company as at, and for the three and six months period ended March 31, 2020 and 2019, together with the notes thereto; and in each case the accompanying management's discussion and analysis of financial condition and results of operations and any other financial information incorporated by reference or included in the Prospectuses;
"Compensation Options" has the meaning given to that term in Section 12;
"Compensation Shares" has the meaning given to that term in Section 12;
"Concurrent Non-Brokered Private Placement" means has the meaning given to that term in the seventh paragraph of this Underwriting Agreement;
"Concurrent Private Placement" means has the meaning given to that term in the sixth paragraph of this Underwriting Agreement;
"Convertible Debentures" means the 8.0% convertible unsecured debentures issued by the Company on March 7, 2019, which debentures have an aggregate principal amount of $15,000,000;
"distribution" means distribution or distribution to the public, as the case may be, for the purposes of Canadian Securities Laws or any of them;
"Encumbrance" means any charge, mortgage, lien, hypothec, pledge, claim, restriction, security interest or other encumbrance whether created or arising by agreement, statute or otherwise pursuant to any applicable law, attaching to property, interests or rights and whether or not they constitute specific or floating charges;
"Environmental Laws" means all applicable federal, provincial, state and local laws, statutes, ordinances, by-laws, regulations, orders, directives and decisions relating to the protection of human health and safety, the environment or the treatment, use, processing, storage, disposal, discharge, transport or handling of hazardous or toxic substances or wastes, pollutants or contaminants;
"FDA" has the meaning given to that term in Section 7(1)(qq)(iii);
- 5 -
"Final Prospectus" has the meaning given to that term in the third paragraph of this Underwriting Agreement and for greater certainty includes all documents incorporated by reference therein or deemed to be incorporated by reference therein;
"Final Receipt" means the document issued by the BCSC, in its capacity as principal regulator, in accordance with National Policy 11-202, evidencing that a receipt has been issued in respect of the Final Prospectus by each of the Securities Commissions;
"Governmental Authority" means and includes, without limitation, any national, federal government, province, state, municipality or other political subdivision of any of the foregoing, any entity exercising executive, legislative, judicial, regulatory or administrative functions of or pertaining to government and any corporation or other entity owned or controlled (through stock or capital ownership or otherwise) by any of the foregoing, and any governmental department, commission, board, bureau, agency or instrumentality, including the Securities Commissions and the TSXV;
"Governmental Licences" has the meaning given to that term in Section 7(1)(j);
"Hazardous Substances" has the meaning given to that term in Section 7(1)(yy);
"Health Care Programs" means Medicare, Medicaid and any other federal or state funded health care programs;
"HIPAA" has the meaning given to that term in Section 7(1)(rr);
"HITECH Act" has the meaning given to that term in Section 7(1)(rr);
"IFRS" means International Financial Reporting Standards;
"Indemnified Party" has the meaning given to that term in Section 14;
"Institutional Accredited Investor" means an "accredited investor" that satisfies one or more of the categories set forth in Rule 501(a)(1), (2), (3) or (7) of Regulation D under the U.S. Securities Act;
"Intellectual Property" means all intellectual and industrial property which is recognized under the law of any jurisdiction anywhere in the world, whether under common law, by statute or otherwise, including, but not limited to, any intellectual or industrial property included in or covered by an Intellectual Property Registration, including but not limited to, intellectual or industrial property arising out of the following:
(a) | patents granted in any other jurisdiction anywhere in the world, reissues, divisions, continuations, continuations-in-part, re-examinations, renewals and substitutes thereof, foreign counterparts of the foregoing, term restorations or other extensions of the term of any issued or granted patents anywhere in the world and extensions of the monopoly right covering a product or service previously covered by any issued or granted patent anywhere in the world for the limited purpose of extending the holder's exclusive right to make, use or sell a particular product or service covered by such patent (such as supplemental protection certificates or the like); |
(b) | trade names, trademarks, trade secrets, service names, service marks, business names, product names, brands, logos, inventions, industrial design, know-how and other distinctive identifications used in commerce, whether in connection with products or services, and the goodwill associated with any of the foregoing; |
- 6 -
(c) | original works of authorship, derivative works and other copyrightable works of any nature, and fixations of any of the foregoing; |
(d) | software, databases and fixations thereof; |
(e) | uniform resource locators, website addresses, domain names, website content and all fixations thereof; and |
(f) | any other intangible property similar to any of the above. |
"Intellectual Property Registration" means an application (including provisional applications), certificate, filing, registration or other document seeking or confirming rights in Intellectual Property issued by, filed with or recorded by any Governmental Authority in any jurisdiction anywhere in the world (including, in the case of patent applications, international or multi-national applications filed in accordance with Chapter I of the Patent Cooperation Treaty or any other multi-lateral agreement), including any and all amendments to any of the foregoing;
"Leased Premises" means the premises which are used or otherwise occupied by the Company and the Subsidiaries and which the Company and the Subsidiaries use or occupy, as applicable, as tenant, sub-tenant, leasee, sub-leasee or otherwise;
"limited-use version" has the meaning given to that term in NI 41-101;
"marketing materials" has the meaning given to that term in NI 41-101;
"Material Adverse Effect" means any fact, event, change, occurrence, or state of being which could reasonably be expected to have a material adverse effect on the business, affairs, capital, operations, properties, permits, assets, liabilities (absolute, accrued, contingent or otherwise) or condition (financial or otherwise) of Protech and the Material Subsidiaries considered on a consolidated basis, or any fact, event or change which would result in the Offering Documents containing a misrepresentation;
"Material Agreement" means any material note, indenture, mortgage or other form of indebtedness and any contract, commitment, agreement (written or oral), instrument, lease or other document, including licence agreements and agreements relating to Intellectual Property, to which the Company or its Subsidiaries are a party or otherwise bound and which is material to the Company or its Subsidiaries;
"Material Subsidiaries" means PHM Services Inc., PHM Logistics Corporation, Resource Medical, Inc., Resource Medical Group, LLC, Resource Medical Group of Charleston, LLC, Care Medical Partners LLC, Black Bear Medical Group, Inc., Black Bear Medical, Inc., Coastal Med-Tech Corp., Legacy Oxygen & Home Care Equipment, LLC, Patient-Aids, Inc. and Cooley Medical Equipment, Inc.;
"Money Laundering Laws" has the meaning given to that term in Section 7(1)(kkk);
"NCI System" has the meaning given to that term in Section 10(2);
"NI 41-101" means National Instrument 41-101 - General Prospectus Requirements;
"NI 43-101" means National Instrument 43-101 – Standards of Disclosure for Mineral Projects;
"NI 44-101" means National Instrument 44-101 - Short Form Prospectus Distributions;
"Offer Price" has the meaning given to that term in the first paragraph of this Underwriting Agreement;
- 7 -
"Offered Securities" has the meaning given to that term in the second paragraph of this Underwriting Agreement;
"Offered Units" has the meaning given to that term in the first paragraph of this Underwriting Agreement;
"Offering Documents" means, collectively, the Prospectuses, any Supplementary Material, and each U.S. Offering Memorandum;
"Offering Jurisdictions" means the Qualifying Jurisdictions, the United States, and those other jurisdictions outside Canada and the United States that are agreed to by the Company and the Co-Lead Underwriters, provided no prospectus filing, offering memorandum, registration statement requirement or comparable obligations arise in such other jurisdictions as a result of such offer or sale;
"OIG" has the meaning given to that term in Section 7(1)(qq)(iii);
"Over-Allotment Closing Date" means the third Business Day after each notice of exercise of the Over-Allotment Option is delivered to the Company, or any earlier or later date as may be agreed to in writing by the Company and the Co-Lead Underwriters, each acting reasonably;
"Over-Allotment Option" has the meaning given to that term in the second paragraph of this Underwriting Agreement;
"Over-Allotment Securities" has the meaning given to that term in the second paragraph of this Underwriting Agreement;
"Owned Intellectual Property" means Intellectual Property (i) created or developed by or on behalf of the Company or (ii) to which the Company has acquired, by purchase, assignment or other transfer, the unconditional, unrestricted, exclusive right to control or prevent any and all use of such Intellectual Property by others without the consent or approval of or payment to, any other person;
"Person" means an individual, a firm, a corporation, a syndicate, a partnership, a trust, an association, an unincorporated organization, a joint venture, an investment club, a Governmental Authority and every other form of legal or business entity of any nature or kind whatsoever;
"Preliminary Prospectus" has the meaning given to that term in the third paragraph of this Underwriting Agreement and for greater certainty includes all documents incorporated by reference therein;
"Preliminary Receipt" means the preliminary document issued by the BCSC, in its capacity as principal regulator, in accordance with National Policy 11-202, evidencing that a receipt has been issued in respect of the Preliminary Prospectus by each of the Securities Commissions;
"Private Placements" has the meaning given to that term in the seventh paragraph of this Underwriting Agreement;
"Private Placement Compensation Options" has the meaning given to that term in the eighth paragraph of this Underwriting Agreement;
"Prospectuses" means, collectively, the Preliminary Prospectus and the Final Prospectus;
- 8 -
"Public Disclosure Documents" means, collectively, all of the publicly available documents which have, or will have been filed by or on behalf of the Company on or prior to the date of the Final Receipt with the relevant Securities Commissions pursuant to the requirements of Canadian Securities Laws and the rules and policies of the TSXV, including all press releases, listing applications, material change reports, financial statements, management's discussions and analysis, information circulars, business acquisition reports and other documents that have been publicly disclosed by or on behalf of the Company and posted under the Company's profile on SEDAR;
"Qualified Institutional Buyer" means a "qualified institutional buyer" as defined in Rule 144A;
"Qualifying Jurisdictions" means, collectively, the Provinces of British Columbia, Alberta and Ontario;
"Rule 144A" means Rule 144A under the U.S. Securities Act;
"Sanctions" has the meaning given to that term in Section 7(1)(mmm);
"Securities Commissions" means the applicable securities commission or regulatory authority in each of the Qualifying Jurisdictions;
"SEDAR" means the System for Electronic Document Analysis and Retrieval;
"Selling Firms" has the meaning given to that term in Section 9(1)(a);
"Standard Listing Conditions" has the meaning given to that term in Section 3(4)(d) of this Underwriting Agreement;
"standard term sheet" has the meaning given to that term in NI 41-101;
"Subsidiaries" means any entity that is a subsidiary of the Company within the meaning of "subsidiary" set forth in the Business Corporations Act (British Columbia) and includes the Material Subsidiaries, and "Subsidiary" means any one of them;
"Supplementary Material" means, collectively, (i) any amendment or supplement to the Prospectuses, (ii) any amendment or supplement to the U.S. Offering Memorandum, (iii) any amendment or supplemental prospectus or ancillary materials that may be filed by or on behalf of Protech under Applicable Securities Laws relating to the qualification for distribution of, inter alia, the Offered Securities (including, for greater certainty, any marketing material or, if applicable, template version thereof), or (iv) any other document, including each U.S. Offering Memorandum, that is delivered or intended to be delivered to a purchaser of Offered Securities and authorized by the Company (including, for greater certainty, any marketing material and any standard term sheet approved by the Company in accordance with Section 2(4));
"Tax Act" has the meaning given to that term in Section 7(1)(jjj);
"template version" has the meaning given to that term in NI 41-101;
"Time of Closing" means (i) 8:30 a.m. (Toronto time) on the Closing Date, or (ii) 8:30 a.m. (Toronto time) on each Over-Allotment Closing Date, as applicable, or (iii) any other time on the Closing Date or any Over-Allotment Closing Date as may be agreed to by the Company and the Co-Lead Underwriters;
"Transaction Documents" means, collectively, this Underwriting Agreement, the Warrant Indenture, the certificates, if any, representing the Warrants and the certificates representing the Compensation Options;
"Transfer Agent" means Computershare Investor Services Inc. in its capacity as transfer agent and registrar of the Common Shares at its principal office in the City of Vancouver, British Columbia;
- 9 -
"TSXV" means the TSX Venture Exchange;
"Underwriters" means has the meaning given to that term in the fifth paragraph of this Underwriting Agreement;
"Underwriting Fee" has the meaning given to that term in Section 12;
"United States" means the United States of America, its territories and possessions, any state of the United States and the District of Columbia;
"U.S. Affiliate" means the U.S. registered broker-dealer affiliate of an Underwriter;
"U.S. Exchange Act" means the United States Securities Exchange Act of 1934, as amended;
"U.S. Offering Memorandum" means each U.S. private placement memorandum, in a form and substance acceptable to the Underwriters, which has attached thereto a copy of the Preliminary Prospectus or the Final Prospectus, or any amendment or supplement thereto, delivered or to be delivered to purchasers of Offered Securities that are, or are acting for the account or benefit of, persons in the United States and U.S. Persons pursuant to the terms and conditions hereof;
"U.S. Person" means a "U.S. person" as that term is defined in Rule 902(k) of Regulation S under the U.S. Securities Act;
"U.S. Securities Act" means the United States Securities Act of 1933, as amended;
"U.S. Securities Laws" means all applicable securities legislation in the United States including, without limitation, the U.S. Securities Act, the U.S. Exchange Act and the rules and regulations promulgated thereunder, and any applicable state securities laws;
"Warrant" has the meaning given to that term in the first paragraph of this Underwriting Agreement;
"Warrant Agent" means Computershare Trust Company of Canada in its capacity as warrant agent under the Warrant Indenture;
"Warrant Indenture" means the warrant indenture to be dated the Closing Date between the Company and the Warrant Agent, providing for the creation and issuance of the Warrants; and
"Warrant Shares" has the meaning given to that term in the first paragraph of this Underwriting Agreement.
(2) | Headings, etc. The division of this Underwriting Agreement into sections, subsections, paragraphs and other subdivisions and the insertion of headings are for convenience of reference only and shall not affect the construction or interpretation of this Underwriting Agreement. Unless something in the subject matter or context is inconsistent therewith, references herein to sections, subsections, paragraphs and other subdivisions are to sections, subsections, paragraphs and other subdivisions of this Underwriting Agreement. |
(3) | Currency. Except as otherwise indicated, all amounts expressed herein in terms of money refer to lawful currency of Canada and all payments to be made hereunder shall be made in such currency. |
(4) | Knowledge. In this Underwriting Agreement a reference to "knowledge" of the Company means to the actual knowledge, after due inquiry, of Gregory Crawford or Hardik Mehta. |
- 10 -
(5) | Information Relating to Underwriters. Where this Underwriting Agreement references information and statements relating solely to the Underwriters (and/or their U.S. Affiliates) and furnished by them in writing specifically for use in the Offering Documents, or any part thereof, the statements set forth under the heading "Plan of Distribution" in the Preliminary Prospectus, Final Prospectus or any Supplementary Material, and that relate to over-allotment and stabilization activities that may be undertaken by the Underwriters, constitute the only such information and statements. |
2. | Filing of the Prospectuses and Qualification for Distribution |
(1) | The Company shall prepare and, concurrent with the entering into of the Underwriting Agreement, file, the Preliminary Prospectus and all necessary related documents (in the English language) under Canadian Securities Laws, and obtain a Preliminary Receipt with respect to the Preliminary Prospectus dated not later than June 8, 2020. |
(2) | The Company shall use its commercially reasonable efforts to satisfy all comments from Securities Commissions as soon as possible after receipt of such comments and the Company shall use its commercially reasonable efforts to prepare and file the Final Prospectus and all necessary related documents (in the English language) under Canadian Securities Laws as soon as possible and in any event no later than two Business Days after clearance from the Securities Commissions to file the Final Prospectus, and use its commercially reasonable efforts to obtain the Final Receipt with respect to the Final Prospectus, and shall have taken all other steps and proceedings that may be necessary to be taken by the Company in order to qualify the Offered Securities for distribution (or distribution to the public, as the case may be) in each of the Qualifying Jurisdictions by the Underwriters under the Canadian Securities Laws on such date. |
(3) | During the distribution of the Offered Securities: |
(a) | the Company shall prepare, in consultation with the Co-Lead Underwriters, any marketing materials (including any template version thereof) to be provided to potential investors of Offered Securities, and approve in writing any such marketing materials (including any template version thereof), as may reasonably be requested by the Underwriters no less than three (3) Business Days prior to its intended use, such marketing materials to comply with Canadian Securities Laws and to be acceptable in form and substance to the Underwriters and their counsel, acting reasonably; |
(b) | Beacon shall, on behalf of the Underwriters, approve in writing any such marketing materials, as contemplated by and prepared in compliance with Canadian Securities Laws, prior to any marketing materials being provided to potential investors of Offered Securities and/or filed with the Securities Commissions; and |
(c) | the Company shall: (i) file any such marketing materials (or any template version thereof) with the Securities Commissions as soon as reasonably practicable after such marketing materials are so approved in writing by the Company and Beacon, on behalf of the Underwriters, and in any event on or before the day the marketing materials are first provided to any potential investor in the Offered Securities; and (ii) remove or redact any comparables from any template version so filed, in compliance with NI 44-101, prior to filing such template version with the Securities Commissions (provided that a complete template version containing such comparables and any disclosure relating to the comparables, if any, shall be delivered to the Securities Commissions in compliance with NI 44-101 by the Company, and a copy thereof provided to the Underwriters as soon as practicable following such filing). |
- 11 -
(4) | The Company and each Underwriter, on a several basis, covenants and agrees that, during the distribution of the Offered Securities, it will not provide any potential investor with any materials or information in relation to the distribution of the Offered Securities or the Company other than the Prospectuses, any Supplementary Material and the U.S. Offering Memorandum in accordance with this Underwriting Agreement, provided that: (i) any such materials that constitute marketing materials have been prepared, approved and filed in accordance with Section 2(3); and (ii) any such materials that constitute standard term sheets have been approved in writing by the Company and the Co-Lead Underwriters and have been prepared and are provided in compliance with Canadian Securities Laws, in each case only in the Qualifying Jurisdictions. |
(5) | Notwithstanding Sections 2(3) and 2(4), following the preparation, approval and filing of a template version of marketing materials in accordance with Section 2(3), the Underwriters may provide a limited-use version of such template version to potential investors of Offered Securities in accordance with Canadian Securities Laws. |
(6) | Until the earlier of the date on which: (i) the distribution of the Offered Securities is completed; or (ii) the Underwriters have exercised their termination rights pursuant to Section 13, the Company will use its commercially reasonable efforts to promptly take, or cause to be taken, all additional steps and proceedings that may from time to time be required under Canadian Securities Laws to continue to qualify the distribution of the Offered Securities or, in the event that the Offered Securities or any of them, have, for any reason, ceased to so qualify, to so qualify again such securities, as applicable, for distribution. |
3. | Delivery of Offering Documents and Related Matters |
(1) | The Company shall deliver without charge to the Underwriters, as soon as practicable and in any event within two (2) Business Days of the date of the filing of the Preliminary Prospectus or the Final Prospectus, as applicable, and thereafter from time to time during the distribution of the Offered Securities, in such cities in the Offering Jurisdictions as the Underwriters shall notify the Company, as many commercial copies of the Preliminary Prospectus, the Final Prospectus and each related U.S. Offering Memorandum, respectively, as the Underwriters may request for the purposes contemplated by the Applicable Securities Laws. The Company will similarly cause to be delivered to the Underwriters, in such cities in the Offering Jurisdictions as the Underwriters may request commercial copies of any Supplementary Material required or intended to be delivered to purchasers or prospective purchasers of the Offered Securities. Each delivery of the Prospectuses, each U.S. Offering Memorandum or any Supplementary Material will have constituted and will constitute the Company's consent to the use of the Prospectuses, each U.S. Offering Memorandum and any Supplementary Material by the Selling Firms for the distribution of the Offered Securities in the Offering Jurisdictions in compliance with the provisions of this Underwriting Agreement and Applicable Securities Laws. |
(2) | Each delivery of the Prospectuses and any Supplementary Material to the Underwriters by the Company will constitute the representation and warranty of the Company to the Underwriters that (except for information and statements relating solely to the Underwriters and furnished by them specifically for use in the Prospectuses), at the respective times of delivery: |
(a) | all information and statements contained in each of the Prospectuses and any Supplementary Material are true and correct, in all material respects, and contain no misrepresentation and constitute full, true and plain disclosure of all material facts relating to the Company and the Offered Securities as required by Canadian Securities Laws; and |
- 12 -
(b) | each of the Prospectuses and the Supplementary Material complies in all material respects with the requirements of Canadian Securities Laws pursuant to which it was filed. |
(3) | Each delivery of the U.S. Offering Memorandum and any Supplementary Material to the Underwriters by the Company will constitute the representation and warranty of the Company to the Underwriters and the U.S. Affiliates that (except for information and statements relating solely to the Underwriters and the U.S. Affiliates and furnished by them specifically for use in the U.S. Offering Memorandum or Supplementary Material) at the respective times of delivery, such U.S. Offering Memorandum or Supplementary Material does not include any misrepresentation. |
(4) | Protech will also deliver to the Underwriters without charge contemporaneously with, or prior to the filing of the Preliminary Prospectus or the Final Prospectus, as the case may be: |
(a) | a copy of the Preliminary Prospectus or Final Prospectus, as the case may be, each manually signed on behalf of Protech by the Persons and in the form required by Canadian Securities Laws, including copies of any documents incorporated by reference therein which have not previously been delivered to the Underwriters (provided that any documents incorporated by reference therein which are publicly available on SEDAR shall be deemed to be delivered to the Underwriters); |
(b) | a copy of any other document filed with, or delivered to, the Securities Commissions by Protech under Canadian Securities Laws in connection with the Offering; |
(c) | a copy of the U.S. Offering Memorandum; |
(d) | concurrently with the filing of the Final Prospectus, evidence satisfactory to the Underwriters, acting reasonably, of the approval (or conditional approval) of the listing and posting for trading on the TSXV of the Common Shares comprising the Offered Securities, the Warrant Shares and Compensation Shares, subject only to satisfaction by Protech of customary post-closing conditions imposed by the TSXV in similar circumstances (the "Standard Listing Conditions"); and |
(e) | concurrently with the filing of the Final Prospectus, a "long-form" comfort letter dated the date of the Final Prospectus in form and substance acceptable to the Underwriters, acting reasonably, addressed to the Underwriters, from the auditor to the Company, and based on a review within a cut-off date of not more than two (2) Business Days prior to the date of the letter, with respect to financial and accounting information relating to the Company, included in the Final Prospectus or incorporated by reference therein, which letter shall be in addition to the auditor's report contained in the Final Prospectus. |
(5) | Comfort letters and other documents substantially similar to those referred to in this section of this Underwriting Agreement will be delivered to the Underwriters and the Company, and their respective counsel, as applicable, with respect to any Supplementary Material, contemporaneously with, or prior to the filing or delivery of, any Supplementary Material. |
4. | Material Changes During the Distribution of the Offered Securities |
(1) | During the period from the date of this Underwriting Agreement to the completion of the distribution of the Offered Securities, Protech covenants and agrees to promptly inform the Underwriters at first orally, and then in writing, full particulars of: |
- 13 -
(a) | any material change (whether actual, anticipated, threatened or contemplated) in respect of Protech considered on a consolidated basis; |
(b) | any material fact (whether actual, anticipated, contemplated, threatened, or proposed) that has arisen or has been discovered and would have been required to have been stated in any of the Offering Documents had that fact arisen or been discovered on, or prior to, the date of the Offering Documents, as the case may be; and |
(c) | any change (whether actual, anticipated, threatened, contemplated, or proposed by, to, or against) in any material fact (which for the purposes of this Underwriting Agreement shall be deemed to include the disclosure of any previously undisclosed material fact) or any misstatement of any material fact contained in the Offering Documents, or the coming into existence of any new material fact; |
in all cases which change or new material fact is, or could reasonably be expected to be, of such a nature as:
(d) | to render the Offering Documents, as they exist taken together in their entirety immediately prior to such change or new material fact, misleading or untrue in any respect or would result in any of such documents, as they exist taken together in their entirety immediately prior to such change or material fact, containing a misrepresentation; |
(e) | could result in the Offering Documents, as they exist taken together in their entirety immediately prior to such change or material fact, not complying with any Applicable Securities Laws; or |
(f) | could reasonably be expected to have a material effect on the market price or value of any of the Offered Securities or to constitute a Material Adverse Effect as it relates to the Company. |
(2) | Protech shall promptly, and in any event within any applicable time limitation, comply, to the satisfaction of the Underwriters, acting reasonably, with all applicable filings and other requirements under the Canadian Securities Laws as a result of such fact or change and shall prepare and will file or deliver promptly, any Supplementary Material, which, in the opinion of the Company and its counsel, acting reasonably, may be necessary, and will, until the distribution of the Offered Securities is complete, otherwise comply with all applicable filing, delivery and other requirements under Applicable Securities Laws arising as a result of such fact or change necessary to continue to qualify the Offered Securities for distribution in each of the Qualifying Jurisdictions. |
(3) | The Company and the Underwriters acknowledge that if the Company is required by Canadian Securities Laws to prepare and file an amendment to the Final Prospectus at any time prior to the completion of the distribution of the Offered Securities, the Company will promptly prepare and file with the Securities Commissions any amendment or supplement thereto which in the opinion of the Underwriters and the Company, acting reasonably, may be necessary or advisable. |
(4) | In addition, if, during the period from the date hereof to the later of (i) the Closing Date, (ii) the last Over-Allotment Closing Date, and (iii) the date of the completion of the distribution of the Offered Securities, it shall be necessary to file or deliver any Supplementary Material to comply with any Applicable Securities Laws, the Company shall, in co-operation with the Underwriters, make any such filing as soon as reasonably possible. |
- 14 -
(5) | In addition to the provisions of Section 4(1) and Section 4(2), the Company will, in good faith, discuss with the Underwriters, any change, event, development or fact, to the knowledge of the Company, contemplated, anticipated, threatened, or proposed in Section 4(1) and Section 4(2) that is of such a nature that there may be reasonable doubt as to whether written notice should be given to the Underwriters under Section 4 of this Underwriting Agreement and will consult with the Underwriters with respect to the form and substance of any Supplementary Material proposed to be filed or delivered by the Company, it being understood and agreed that no such Supplementary Material will be filed by the Company with any Securities Commission or delivered to any purchaser or prospective purchaser until the Underwriters and their legal counsel have been given a reasonable opportunity to review and approve such material, acting reasonably. |
5. | Due Diligence |
Prior to the Time of Closing, and, if applicable, prior to the filing or delivery of any Supplementary Material, the Underwriters, their legal counsel, and technical consultants will be provided with timely access to all information required to permit them to conduct a full due diligence investigation of the Company and its business operations, properties, assets, affairs, prospects and financial condition. In particular, the Underwriters shall be permitted to conduct all due diligence that they may reasonably require in order to fulfil their obligations under Applicable Securities Laws and, in that regard, Protech will make available to the Underwriters, their legal counsel and any technical consultants, on a timely basis, all corporate and operating records, contracts, financial information, budgets, key officers, and other relevant information necessary in order to complete the due diligence investigation of the Company and its business, properties, assets, affairs and financial condition for this purpose and, without limiting the scope of the due diligence inquiries the Underwriters may conduct, Protech will participate in one or more due diligence sessions to be held prior to the filing of the Final Prospectus and prior to the Time of Closing at which management of the Company, the Company's auditor and the Company's legal counsel shall participate. All information provided by the Company to the Underwriters and their counsel will be used only in connection with this Offering. It shall be a condition precedent to (i) the Underwriters' execution of any certificate in any Offering Document that the Underwriters be satisfied as to the form and substance of the document, and (ii) the delivery of each U.S. Offering Memorandum to any purchaser or prospective purchaser that the Underwriters and their U.S. Affiliates be satisfied as to the form and substance of such document.
6. | Conditions of Closing |
The Underwriters' obligations under this Underwriting Agreement to purchase the Offered Units, or to purchase any Over-Allotment Securities following any and all exercises of the Over-Allotment Option, are conditional upon and subject to:
(1) | Canadian Legal Opinion. The Underwriters receiving at the Time of Closing on the Closing Date a favourable legal opinion dated the applicable Closing Date, from DLA Piper (Canada) LLP, legal counsel to the Company, who may rely on, or alternatively provide directly to the Underwriters, the opinions of local counsel acceptable to counsel to the Underwriters, acting reasonably, as to the qualification of the Offered Securities for sale to the public and as to other matters governed by the laws of jurisdictions in Canada other than the provinces in which they are qualified to practice and may rely as to matters of fact on certificates of officers, public and exchange officials or of the auditor or transfer agent of the Company, to the effect set forth below: |
(a) | the Company was incorporated and is existing under the Business Corporations Act (British Columbia) and has the corporate capacity and power to own and lease its properties and assets and to conduct its business as contemplated in the Prospectuses, and to carry out the Offering and transactions contemplated under this Underwriting Agreement and the Warrant Indenture and to perform its obligations hereunder and thereunder, respectively; |
- 15 -
(b) | the authorized and issued share capital of the Company; |
(c) | all necessary corporate action having been taken by the Company to authorize the execution and delivery of the Transaction Documents and the performance of its obligations hereunder and thereunder, respectively; |
(d) | the Company has all necessary corporate power and capacity to issue and sell the Offered Securities; all necessary corporate action has been taken by the Corporation to authorize the execution and delivery of the Offering Documents and the filing thereof with the Securities Commissions and the TSXV; |
(e) | the Transaction Documents having been duly executed and delivered by the Company and constitute, a legal, valid and binding obligation of, and being enforceable against, the Company in accordance with its terms subject to bankruptcy, insolvency and other laws affecting the rights of creditors generally and subject to such other standard assumptions and qualifications including the qualifications that equitable remedies may be granted in the discretion of a court of competent jurisdiction and that enforcement of rights to indemnity, contribution and waiver of contribution set out in the Transaction Documents may be limited by applicable law; |
(f) | the execution and delivery by the Company of the Transaction Documents, and the fulfilment of the terms thereof by the Company not constituting or resulting in a breach of or a default under, and not creating a state of facts which, after notice or lapse of time or both, will constitute or result in a breach of, and will not conflict with, any of the terms, conditions or provisions of the articles or by-laws of the Company or any applicable law of the province of British Columbia and the federal laws of Canada applicable therein; |
(g) | all necessary corporate action having been taken by the Company to authorize the creation, issuance and delivery of the Offered Securities and the Compensation Options; |
(h) | the rights, privileges, restrictions and conditions attaching to the Offered Securities are accurately summarized in all material respects in the Final Prospectus; |
(i) | all documents required to be filed or delivered by the Company and all proceedings required to be taken by the Company under Canadian Securities Laws having been filed or delivered and taken and all approvals, permits and consents of the appropriate regulatory authority in each of the Qualifying Jurisdictions have been obtained by the Corporation in order to qualify the distribution of the Offered Securities and the Compensation Options in each of the Qualifying Jurisdictions through investment dealers or brokers registered under the Canadian Securities Laws who have complied with the relevant provisions thereof and the terms of their registration; |
(j) | the Offering Documents having been duly authorized and executed by the Company; |
(k) | the Common Shares comprising the Offered Securities, the Warrant Shares and the Compensation Shares having been conditionally approved for listing on the TSXV, subject only to the Standard Listing Conditions; |
- 16 -
(l) | (i) upon full payment therefor and the issue thereof, the Common Shares and Warrants comprising the Offered Units, the Warrant Shares and the Compensation Shares being validly issued by the Company, and in the case of the Common Shares, Warrant Shares and Compensation Shares, as fully paid and non-assessable shares in the capital of the Company, and (ii) the Over-Allotment Securities will, upon exercise of the Over-Allotment Option and payment of the applicable offer price for the Over-Allotment Securities, be validly issued by the Company, and in the case of the Common Shares, Warrant Shares and Compensation Shares, will be fully paid and non-assessable securities in the capital of the Company as applicable; |
(m) | Computershare Investor Services Inc. has been appointed as the transfer agent and registrar for the Common Shares; |
(n) | Computershare Trust Company of Canada has been appointed as the trustee under the Warrant Indenture; |
(o) | the Company being a reporting issuer (or the equivalent) in the Qualifying Jurisdictions, and not being included on a list of defaulting reporting issuers maintained by the Securities Commissions that maintain such lists; and |
(p) | the statements under the heading "Eligibility for Investment" and "Certain Canadian Federal Income Tax Considerations" in the Final Prospectus in so far as they purport to describe the provisions of the laws referred to therein, are fair and accurate summaries of the matters discussed therein; |
in a form and substance acceptable to the Underwriters' counsel, acting reasonably;
(2) | United States Opinion. The Underwriters receiving at the Time of Closing on the Closing Date and the Over-Allotment Closing Date, as applicable, a favourable legal opinion from United States legal counsel to the Company, dated the Closing Date or Over-Allotment Closing Date, as applicable, in form and substance acceptable to the Underwriters' counsel, acting reasonably, to the effect that it is not necessary in connection with the offer and sale of the Offered Securities to, or for the account or benefit of, persons in the United States and U.S. Persons in the manner contemplated herein, to register the Offered Securities under the U.S. Securities Act, it being understood that no opinion is expressed as to any subsequent resale of any Offered Securities (including the Common Shares and Warrants comprising the Offered Units) or Warrant Shares issuable upon exercise of any Warrants; |
(3) | Material Subsidiaries Opinion. The Underwriters receiving at the Time of Closing on the Closing Date a favourable legal opinion from counsel to the Company, dated the applicable Closing Date, in form and substance acceptable to the Underwriters' counsel, acting reasonably, as to: (i) the incorporation and existence of the Material Subsidiaries; (ii) the corporate power and authority of each Material Subsidiary to carry on its respective business as presently carried on and to own its assets and properties; and (iii) as to the registered ownership of the issued and outstanding shares of the Material Subsidiaries; |
(4) | Officer's Certificate of Protech. The Underwriters having received at the Time of Closing on the Closing Date, a certificate dated such date signed by the Chairman and Chief Executive Officer, the President or the Chief Financial Officer of Protech or another officer acceptable to the Underwriters in form and substance acceptable to the Underwriters with respect to: |
(a) | the constating documents of Protech; |
- 17 -
(b) | the resolutions of the directors of Protech relevant to the Offering, the allotment and sale of the Offered Securities, the Compensation Option, the authorization of this Underwriting Agreement, and the other agreements and transactions contemplated by this Underwriting Agreement; and |
(c) | the incumbency and signatures of signing officers of Protech; |
(5) | Certificates of Status. The Underwriters having received at the applicable Time of Closing, a Certificate of Status and/or compliance (or the equivalent), where issuable under applicable law, for Protech and the Material Subsidiaries, each dated within two (2) days of the applicable date; |
(6) | Lock-Up Agreements. The Company having delivered to the Underwriters, at the Time of Closing on the Closing Date, executed agreements of the directors and senior officers of the Company in favour of the Underwriters as contemplated by Section 8(h); |
(7) | Closing Certificate of Protech. Protech having delivered to the Underwriters, at the applicable Time of Closing, a certificate dated the date on which such Time of Closing occurs, addressed to the Underwriters and signed by the Chairman and Chief Executive Officer or the President and the Chief Financial Officer of the Company, certifying for and on behalf of Protech, and not in their personal capacities, after having made due inquiries, with respect to the following matters: |
(a) | Protech having complied in all material respects with all the covenants and satisfied all the terms and conditions of this Underwriting Agreement on its part to be complied with and satisfied at or prior to such Time of Closing; |
(b) | as at the Time of Closing, no order, ruling or determination (including any stop order) having the effect of ceasing or suspending trading in any securities of the Company or prohibiting the sale of the Offered Securities or any of the Company's issued securities, and no proceeding for such purpose being pending or, to the knowledge of such officers, threatened by any securities regulatory authority or the TSXV; |
(c) | subsequent to the date of this Underwriting Agreement, there having not occurred a material change, or any change or development that could reasonably be expected to result in a Material Adverse Effect in respect of the Company, or the coming into existence or discovery of a new material fact, other than as disclosed in the Final Prospectus or any Supplementary Material, as the case may be; |
(d) | the representations and warranties of Protech contained in this Underwriting Agreement, any Ancillary Documents and in any certificates of Protech delivered pursuant to or in connection with this Underwriting Agreement, being true and correct in all material respects (or, if qualified by materiality, in all respects) as at such Time of Closing, with the same force and effect as if made on and as at such Time of Closing, except for such representations and warranties which are in respect of a specific date in which case such representations and warranties shall be true and correct, in all material respects (or, if qualified by materiality, in all respects), as of such date, after giving effect to the transactions contemplated by this Underwriting Agreement; and |
(e) | that the Final Prospectus does not contain a misrepresentation and constitutes full, true and plain disclosure of all material facts relating to the Offered Securities and that the final U.S. Offering Memorandum as of its date and as of the Closing Date, did not and does not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading within the meaning of the U.S. Exchange Act; |
- 18 -
(8) | Certificate of Transfer Agent. The Underwriters having received, at the Time of Closing, a certificate from the transfer agent of the Company as to the number of Common Shares issued and outstanding as at a date no more than two (2) Business Days prior to the Closing Date; |
(9) | TSXV Approval. Protech having delivered to the Underwriters evidence of the approval (or conditional approval) of the listing and posting for trading of the Common Shares comprising the Offered Securities, the Warrant Shares and the Compensation Shares on the TSXV, subject only to satisfaction by Protech of Standard Listing Conditions; |
(10) | No Termination. The Underwriters not having exercised any rights of termination set forth in Section 13; |
(11) | Bring Down Auditor Comfort Letter. Protech having caused the Company's auditor to deliver to the Underwriters a comfort letter, dated the applicable Time of Closing, in form and substance satisfactory to the Underwriters, acting reasonably, bringing forward to the date which is two (2) Business Days prior to the applicable Time of Closing, the information contained in the comfort letter referred to in Section 3(4)(g) hereof; |
(12) | No Cease Trade Order. At each Time of Closing, the Company is not the subject of a cease trading order made by any securities regulatory authority or other competent authority which has not been rescinded; and |
(13) | Transaction Documents. The Transaction Documents shall have been executed and delivered by the parties thereto in form and substance satisfactory to the Underwriters and their counsel, acting reasonable. |
7. | Representations and Warranties of Protech |
(1) | The Company represents and warrants to the Underwriters as of the date hereof, and acknowledges that each of them is relying upon such representations and warranties in connection with the Offering, that: |
(a) | Good Standing, Capacity and Corporate Power of the Company. The Company: (i) has been duly incorporated, amalgamated, continued or organized and is validly existing as a company in good standing under the laws of its jurisdiction of incorporation, amalgamation, continuation or organization, and has the corporate power, capacity and authority to own, lease and operate its property and assets, to conduct its business as now conducted and as currently proposed to be conducted, to issue and sell the Offered Securities and to execute, deliver and perform its obligations under the Transaction Documents and to carry out the transactions contemplated therein; and (ii) where required, has been duly qualified as an extra-provincial or foreign corporation for the transaction of business and is in good standing under the laws of each jurisdiction in which it owns or leases property, or conducts any business unless, in each case, the failure to so qualify in any such jurisdiction would not, individually or in the aggregate, have a Material Adverse Effect; |
- 19 -
(b) | Subsidiaries. Other than the Subsidiaries, the Company has no subsidiaries and no investment in any person which is or would be material to the business and affairs of the Company. The Material Subsidiaries are the only subsidiaries of the Company that are material to the Company (taken as a whole), including with respect to the generation of revenues and the ownership of Intellectual Property. All of the issued and outstanding shares in the capital of the Subsidiaries have been duly authorized and validly issued, are fully paid and the Company is the direct or indirect registered and beneficial owner of all of the issued and outstanding shares of each Subsidiary, in each case free and clear of all Encumbrances or adverse interests whatsoever, and no person, firm, corporation or entity has any agreement, option, right or privilege (whether pre-emptive or contractual) capable of becoming an agreement or option, for the purchase from the Company or any Subsidiary of any of the shares or other securities of any Subsidiary and none of the outstanding securities of the Subsidiaries were issued in violation of the pre-emptive or similar rights of any security holder of such subsidiary; |
(c) | Good Standing, Capacity and Corporate Power of the Subsidiaries. Each Subsidiary: (i) has been duly incorporated, amalgamated, continued or organized and is validly existing as a company in good standing under the laws of its jurisdiction of incorporation, amalgamation, continuation or organization and has the corporate power, capacity and authority to own, lease and operate its property and assets, to conduct its business as now conducted and as currently proposed to be conducted and to carry out the provisions hereof; and (ii) where required, has been duly qualified as a foreign corporation for the transaction of business and is in good standing under the laws of each other jurisdiction in which it owns or leases property, or conducts any business and is not precluded from carrying on business or owning property in such jurisdictions by any other commitment, agreement or document and is current and up-to-date with all material filings required to be made; |
(d) | Dissolution or Liquidation. No proceedings have been taken, instituted or, to the knowledge of the Company, are pending for the dissolution or liquidation of the Company or the Subsidiaries; |
(e) | Authorized Capital. The authorized capital of the Company consists of an unlimited number of Common Shares, an unlimited number of first preferred shares and an unlimited number of second preferred shares of which as at the date hereof, 84,165,779 Common Shares are issued and outstanding as fully paid and non-assessable and no preferred shares are issued and outstanding; |
(f) | Convertible Securities. As of the date hereof, except for (ii) below, which shall be as at March 31, 2020, other than (i) pursuant to the provisions of this Underwriting Agreement, (ii) outstanding incentive stock options exercisable for an aggregate of 11,219,858 Common Shares, (iii) outstanding warrants to purchase an aggregate of 886,455 Common Shares, and (iv) the Convertible Debentures, no person, firm, corporation or other entity holds any securities convertible or exchangeable into securities of the Company or has any agreement, warrant, option, right or privilege (whether at law, pre-emptive or contractual) being or capable of becoming an agreement for the purchase, subscription or issuance of, or conversion into, any unissued shares, securities (including convertible securities) or warrants of the Company; |
(g) | Voting Control. The Company and the Subsidiaries are not party to any agreement, nor is the Company or the Subsidiaries aware of any agreement, which in any manner affects the voting control of any of the securities of the Company or the Subsidiaries; |
- 20 -
(h) | Shareholders Rights Plan. The Company does not have in place a shareholder rights protection plan and neither the Company, nor to the Company's knowledge, any of its shareholders is a party to any shareholders agreement, pooling agreement, voting trust or other similar type of arrangements in respect of outstanding securities of the Company; |
(i) | Minute Books and Records. The minute books and records of each of the Company and the Subsidiaries made available to counsel for the Underwriter in connection with its due diligence investigation of the Company and the Subsidiaries for the periods from its date of incorporation to the date of examination thereof are all of the minute books and material records of the Company and the Subsidiaries and contain copies of all material proceedings (or certified copies thereof) of the shareholders, the boards of directors and all committees of the boards of directors of the Company and the Subsidiaries to the date of review of such corporate records and minute books and there have been no other meetings, resolutions or proceedings of the shareholders, board of directors or any committees of the board of directors of the Company and the Subsidiaries to the date of review of such corporate records and minute books not reflected in such minute books and other records; |
(j) | Governmental Licences. (A) the Company and each of the Subsidiaries possesses such permits, certificates, licences, approvals, registrations, qualifications, consents and other authorizations (collectively, "Governmental Licences") issued by the appropriate federal, provincial, state, local or foreign regulatory agencies or bodies necessary to conduct the business now operated by it in all jurisdictions in which it carries on business, that are material to the conduct of the business of the Company and the Subsidiaries (as such business is currently conducted); (B) the Company and each Subsidiary is in material compliance with the terms and conditions of all such Governmental Licences; (C) all of such Governmental Licences are in good standing, valid and in full force and effect; (D) neither the Company nor any Subsidiary has received any notice of proceedings relating to the revocation, suspension, termination or modification of any such Governmental Licences, and there are no facts or circumstances, including without limitation facts or circumstances relating to the revocation, suspension, modification or termination of any Governmental Licenses held by others, known to the Company, that could lead to the revocation, suspension, modification or termination of any such Governmental License; (E) neither the Company nor any Subsidiary is in material default with respect to filings to be effected or conditions to be fulfilled in order to maintain such Governmental Licenses in good standing; (F) none of such Governmental Licenses contains any term, provision, condition or limitation which has or would reasonably be expected to affect or restrict in any material respect the operations or the business of the Company or any Subsidiary as now carried on or proposed to be carried on; and (G) neither the Company nor any Subsidiary has reason to believe that any party granting any such Governmental Licenses is considering limiting, suspending, modifying, withdrawing or revoking the same; |
(k) | Conducting Business in Compliance. The Company and each Subsidiary (i) have conducted and are each conducting their business in compliance in all material respects with all Applicable Laws of each jurisdiction in which its business is carried on or in which its services are provided and has not received a notice of non-compliance, nor knows of, nor has reasonable grounds to know of, any facts that could give rise to a notice of non-compliance with any such Applicable Laws, (ii) are not in breach or violation of any judgment, order or decree of any Governmental Authority or court having jurisdiction over the Company or any Subsidiary, as applicable, and (iii) hold all, and are not in breach of any, Governmental Licences that enable its business to be carried on as now conducted; |
- 21 -
(l) | Pending Changes to Applicable Law. Except for information in the public domain relating to the regulatory regime governing the healthcare industry in the United States, the Company and the Subsidiaries are not aware of any pending change or contemplated change to any Applicable Law or regulation or governmental position that would materially affect the business of the Company or the Subsidiaries or the business or legal environment under which the Company or the Subsidiaries operate; |
(m) | Reporting Issuer Status and Foreign Private Issuer Status. The Company is a "reporting issuer", or the equivalent thereof, in the Provinces of British Columbia, Alberta and Quebec and is not included on a list of defaulting reporting issuers maintained by any of the Securities Commissions. The Company is not currently in default of any requirement of the Applicable Securities Laws of such jurisdictions in any material respect and in particular, without limiting the foregoing, the Company has at all times complied with its obligations to make timely disclosure of all material changes and material facts relating to it and there is no material change or material fact relating to the Company or the Subsidiaries which has occurred and with respect to which the requisite news release has not been disseminated and/or material change report, as applicable, has not been filed with the Securities Commissions in the provinces of British Columbia, Alberta and Quebec. All filings and fees required to be made and paid by the Company and the Subsidiaries pursuant to all Applicable Laws have been made and paid. The Company is a "foreign issuer" as that term is defined in Rule 902(e) of Regulations S of the U.S. Securities Act and it has neither a class of securities registered pursuant to Section 12 of the U.S. Exchange Act nor a reporting obligations pursuant to Section 15(d) of the U.S. Exchange Act; |
(n) | Continuous Disclosure. Other than as disclosed to the Underwriters, the Company is in compliance in all material respects with its timely disclosure obligations under Applicable Securities Laws and, without limiting the generality of the foregoing since September 30, 2019, there has not occurred a Material Adverse Effect which has not been publicly disclosed. All information which has been prepared by the Company relating to the Company and the Subsidiaries and their respective business, property and liabilities and either publicly disclosed (including each Public Disclosure Document required to be filed on SEDAR pursuant to continuous and timely disclosure requirements under Applicable Securities Laws) or provided to the Underwriters (including all financial, marketing, sales and operational information provided to the Underwriters), is as of the date of such information, true and correct in all material respects, does not contain any misrepresentations and no material facts or facts have been omitted therefrom which would make such information misleading and the Company is not aware of any circumstances presently existing under which a material liability is or could reasonably be expected to be incurred under secondary market liability disclosure provisions under Applicable Securities Laws. The Company has not filed any confidential material change reports with any of the Securities Commissions that is still maintained on a confidential basis; |
(o) | Forward-looking Information. All forward-looking information and statements of the Company contained in the Public Disclosure Documents, including any forecasts and estimates, expressions of opinion, intention and expectation have been based on assumptions that are reasonable in the circumstances, complies in all material respects with Applicable Securities Laws, and the Company has updated such forward-looking information and statements as required by and in compliance with Applicable Securities Laws; |
- 22 -
(p) | Adverse Material Change. There has been no adverse material change to the Company or the Subsidiaries (actual or proposed, whether financial or otherwise) in the business, affairs, operations, assets, liabilities (absolute, accrued, contingent or otherwise) or capital stock or long term debt of the Company or the Subsidiaries on a consolidated basis since September 30, 2019 which has not been generally disclosed to the public and, in all material respects, the business of the Company and the Subsidiaries have been carried on in the usual and ordinary course consistent with past practice since September 30, 2018 to the extent that such past practice is consistent with the current business direction of the Company and the Subsidiaries; |
(q) | Freedom to Compete and Move Assets. Except pursuant to Section 9.1 of a debenture indenture dated March 7, 2019 between the Company and the Warrant Agent in respect of the Convertible Debentures, the Company and the Subsidiaries are not a party to or bound or affected by any commitment, agreement or document containing any covenant which expressly limits the freedom of the Company or the Subsidiaries to compete in any line of business, transfer or move any of its assets or operations or which has or could reasonably be expected to have a Material Adverse Effect; |
(r) | Material Agreements. All of the Material Agreements of the Company and of the Subsidiaries have been disclosed in the Public Disclosure Documents and each Material Agreement is legal, valid, binding and in full force and effect and is enforceable by the Company or the Subsidiary, as applicable, in accordance with its terms subject to customary qualifications, including that enforcement thereof may be limited by bankruptcy, insolvency, liquidation, reorganization, moratorium or similar laws affecting the rights of creditors generally and except as limited by the application of equitable principles when equitable remedies are sought, and the qualification that the enforceability of rights of indemnity and contribution may be limited by Applicable Law. Neither the Company nor the Subsidiaries, nor to the knowledge of the Company, any other person, is in default in the observance or performance of any term, covenant or obligation to be performed by it under any Material Agreement which would have a Material Adverse Effect and no event has occurred which with notice or lapse of time or both would constitute such a default and all such contracts, agreements and arrangements are in good standing. None of the Company or any of the Subsidiaries has received any notice (whether written or oral), that any party to a Material Agreement intends to cancel, terminate or otherwise modify or not renew its relationship with the Company or with any of the Subsidiaries, which would have a Material Adverse Effect and, to the knowledge of the Company, no such action has been threatened; |
(s) | Ownership Interests. The Company and each Subsidiary is the absolute legal and beneficial owner, and has good and valid title to, all of the material property or assets thereof as described in the Public Disclosure Documents free and clear of all Encumbrances and defects of title except Encumbrances filed in the ordinary course or such as are not material, individually or in the aggregate, to the Company or any Subsidiary, and (A) no other material property or assets are necessary for the conduct of the business of the Company or any Subsidiary as currently conducted, (B) the Company has no knowledge of any claim or the basis for any claim that might or could materially and adversely affect the right of the Company or any Subsidiary to use, transfer or otherwise exploit such property or assets, and (C) neither the Company nor the Subsidiary has any responsibility or obligation to pay any commission, royalty, licence fee or similar payment to any person with respect to the property and assets thereof; |
- 23 -
(t) | Purchases and Sales. Neither the Company nor the Subsidiaries has approved, has entered into any agreement in respect of, or has any knowledge of: |
(i) | the purchase of any of its business assets or any interest therein, or the sale, transfer or other disposition of any of its business assets or any interest therein currently owned, directly or indirectly, by the Company or the Subsidiaries whether by asset sale, transfer of shares, or otherwise; |
(ii) | the change of control (by sale or transfer of common shares or sale of all or substantially all of the assets of the Company or the Subsidiaries or otherwise) of the Company or the Subsidiaries; or |
(iii) | a proposed or planned disposition of common shares by any shareholder who owns, directly or indirectly, 10% or more of the outstanding common shares or common shares of the Subsidiaries; |
(u) | Real and Leased Property. The Company owns no real property. With respect to each of the Leased Premises, the Company and the Subsidiaries occupy the Leased Premises, have the right to occupy and use the Leased Premises and each of the leases pursuant to which the Company and the Subsidiaries occupy the Leased Premises is in good standing in all material respects and in full force and effect. The performance of obligations pursuant to and in compliance with the terms of this Underwriting Agreement and the completion of the transactions described herein by the Company and the Subsidiaries, will not afford any of the parties to such leases or any other person the right to terminate such lease or the Company's or any of the Subsidiaries' right to occupy and use the Leased Premises or, result in any additional or more onerous obligations under such leases. Neither the Company nor any of the Subsidiaries has received any notice or other communication from the owner or manager of any of the Leased Premises that the Company or any of the Subsidiaries is not in compliance with any term or condition of any such real property lease, and to the best knowledge of the Company no notice or other communication is pending or has been threatened; |
(v) | Financial Statements. The Company Financial Information: (i) have been prepared in accordance with Applicable Securities Laws and IFRS, applied on a consistent basis throughout the periods referred to therein, except as otherwise disclosed therein; and (ii) present fairly, in all material respects, the financial position and condition of the Company and the Subsidiaries on a consolidated basis as at the dates thereof and the results of its operations and the changes in its shareholder's equity and cash flows for the periods then ended, and do not contain a misrepresentation; |
(w) | Off-Balance Sheet Transactions. There are no off-balance sheet transactions, arrangements, obligations or liabilities of the Company or its Subsidiaries whether direct, indirect, absolute, contingent or otherwise which are required to be disclosed and are not disclosed or reflected in the Company Financial Information; |
(x) | Accounting Policies. There has been no change in accounting policies or practices of the Company or its Subsidiaries since September 30, 2019, other than the adoption of certain additional IFRS measures as disclosed in the Company Financial Information; |
- 24 -
(y) | Accounting Controls. The Company has established and maintains a system of disclosure controls and procedures that are designed to provide reasonable assurance that information required to be disclosed by the Company in its annual filings, interim filings or other reports filed or submitted by it under Applicable Securities Laws is recorded, processed, summarized and reported within the time periods specified in Applicable Securities Laws. Such disclosure controls and procedures include controls and procedures designed to ensure that information required to be disclosed by the Company in its annual filings, interim filings or other reports filed or submitted under Applicable Securities Laws is accumulated and communicated to the Company's management, including its chief executive officer and chief financial officer, as appropriate, to allow timely decisions regarding required disclosure. The Company and the Subsidiaries maintain, and will maintain, a system of internal accounting controls sufficient to provide reasonable assurance that: (i) transactions are executed in accordance with management's general or specific authorizations; (ii) transactions are recorded as necessary to permit preparation of financial statements in conformity with IFRS and to maintain asset accountability; and (iii) access to assets is permitted only in accordance with management's general or specific authorization. To the knowledge of the Company, there is no material weakness relating to the design, implementation or maintenance of its internal control over financial reporting, or fraud, whether or not material, that involves management or other employees who have a significant role in the internal control over financial reporting of the Company. To the knowledge of the Company, none of the Company, any of its Subsidiaries, any director, officer, auditor, accountant or representative of the Company or any of its Subsidiaries has received or otherwise obtained knowledge of any material complaint, allegation, assertion, or claim, whether written or oral, regarding accounting, internal accounting controls or auditing matters, including any material complaint, allegation, assertion, or claim that the Company or any of its Subsidiaries has engaged in questionable accounting or auditing practices, or any expression of concern from its employees regarding questionable accounting or auditing matters; |
(z) | Audit Committee's Responsibilities. The audit committee's responsibilities comply with National Instrument 52-110 - Audit Committees; |
(aa) | Independent Accountants. The auditors who audited the annual Company Financial Information and who provided their audit report thereon are a participating audit firm within the meaning of Applicable Securities Laws and are independent pursuant to the Rules of Professional Conduct of the Institute of Chartered Accountants of Ontario; |
(bb) | Reportable Event. There has not been a "reportable event" (within the meaning of National Instrument 51-102 – Continuous Disclosure Obligations) with the present or former auditors of the Company and the auditors of the Company have not provided any material comments or recommendations to the Company regarding its accounting policies, internal control systems or other accounting or financial practices that have not been implemented by the Company; |
(cc) | Insurance. The Company and the Subsidiaries are insured by insurers of recognized financial responsibility against such losses and risks and in such amounts as are prudent and customary in the businesses in which they are engaged, and the Company has no reason to believe that it will not be able to renew the existing insurance coverage of the Company and the Subsidiaries as and when such coverage expires or to obtain similar coverage from similar insurers as may be necessary to continue its business at a cost that would not, individually or in the aggregate, have a Material Adverse Effect, and such coverage is in full force and effect, and the Company and the Subsidiaries have not breached the terms of any policies in respect thereof or failed to promptly give any notice or present any material claim thereunder; |
- 25 -
(dd) | Taxes. The Company and each Subsidiary has duly and on a timely basis filed all foreign, federal, state, provincial and municipal tax returns required to be filed by it, has paid all taxes due and payable by the Company and the Subsidiaries, respectively, and has paid all assessments and reassessments and all other taxes, governmental charges, penalties, interest and other fines due and payable by it and which are claimed by any Governmental Authority to be due and owing, except where the failure to pay would not, individually or in the aggregate, have a Material Adverse Effect, and adequate provision has been made for taxes payable for any completed fiscal period for which tax returns are not yet required to be filed; there are no agreements, waivers or other arrangements providing for an extension of time with respect to the filing of any tax return or payment of any tax, governmental charge or deficiency by the Company or by any Subsidiary; there are no actions, suits, proceedings, investigations or claims pending or, to the knowledge of the Company, threatened against the Company or any Subsidiary in respect of taxes, governmental charges or assessments; and there are no matters under discussion with any Governmental Authority relating to taxes, governmental charges or assessments asserted by any such authority. The Company and each of the Subsidiaries have established on their books and records reserves that are adequate for the payment of all taxes not yet due and payable and there are no liens for taxes on the assets of the Company or any of the Subsidiaries, and, to the knowledge of the Company, there are no audits pending of the tax returns of the Company or any of the Subsidiaries (whether federal, state, provincial, local or foreign) and there are no claims which have been or may be asserted relating to any such tax returns, which audits and claims, if determined adversely, would result in the assertion by any Governmental Authority of any deficiency that could, individually or in the aggregate, result in a Material Adverse Effect; |
(ee) | Dividends. During the previous 12 months, the Company has not, directly or indirectly, declared or paid any dividend or declared or made any other distribution on any of its shares or securities of any class, or, directly or indirectly, redeemed, purchased or otherwise acquired any of its common shares or securities or agreed to do any of the foregoing. Except pursuant to Section 6.8 of a debenture indenture dated March 7, 2019 between the Company and the Warrant Agent in respect of the Convertible Debentures, there is not, in the constating documents, articles or in any Material Agreement or other instrument or document to which the Company or the Subsidiaries is a party, any restriction upon or impediment to, the declaration or payment of dividends by the directors of the Company or the payment of dividends by the Company to the holders of its Common Shares; |
(ff) | Insider Interest in Transactions. Other than six separate lease agreements with Gregory Crawford, as disclosed in the Company Financial Information, none of the directors, executive officers or shareholders who beneficially own, directly or indirectly, or exercise control or direction over, more than 10% of the outstanding common shares of the Company or securities exchangeable for more than 10% of any class of securities of the Company, or any known associate or affiliate of any such person, has any material interest, direct or indirect, in any transaction or any proposed transaction (including, without limitation, any loan made to or by any such person) with the Company which, as the case may be, materially affects, is material to or will materially affect the Company and its Subsidiaries (taken as a whole). The Company and the Subsidiaries do not have any loans or other indebtedness (excluding accounts payable) outstanding which has been made to any of its shareholders, officers, directors or employees, past or present, or any person not dealing at "arm's length" (as such term is defined in the Tax Act); |
- 26 -
(gg) | Directors and Officers. To the best of the Company's knowledge, none of the directors or officers of the Company are now, or have ever been, subject to an order or ruling of any securities regulatory authority or stock exchange prohibiting such individual from acting as a director or officer of a public company or of a company listed on a particular stock exchange; |
(hh) | Litigation. Except as disclosed to the Underwriters, none of the Company or any Subsidiary has been served with or otherwise received notice of any legal or governmental proceedings or investigations and there are no legal or governmental proceedings or investigations (whether or not purportedly on behalf of the Company) pending to which the Company or any Subsidiary is a party or of which any property or assets of the Company or any Subsidiary is the subject which is reasonably likely, individually or in the aggregate, to have a Material Adverse Effect, or which might reasonably be expected to materially and adversely affect the consummation by the Company of the transactions contemplated by this Underwriting Agreement and no such proceedings have been threatened or contemplated by any Governmental Authority or any other parties. There are no judgments against the Company or the Subsidiaries which are unsatisfied, nor are there any consent decrees or injunctions to which the Company or the Subsidiaries is subject; |
(ii) | Cease Trade Order. The issued and outstanding Common Shares are listed and posted for trading solely on the TSXV, the Company is in the process of applying to list the Common Shares underlying the Offered Securities, the Warrant Shares and the Compensation Shares on the TSXV and no order ceasing or suspending trading in any securities of the Company or the trading of any of the Company's issued securities is currently outstanding and no proceedings for such purpose are threatened, or to the knowledge of the Company, pending; |
(jj) | Delisting. Neither the Company nor the Subsidiaries have taken any action which would be reasonably expected to result in the delisting or suspension of the Common Shares on or from the TSXV and the Company is currently in material compliance with the rules and regulations of the TSXV; |
- 27 -
(kk) | Bribery. The Company, its Subsidiaries and each of their directors and officers are familiar with anti-bribery and anti-corruption laws and regulations applicable in any jurisdiction in which they are located or conducting business (collectively "Applicable Anti-Corruption Laws and Regulations"). The Company, its Subsidiaries, and to the knowledge of the Company, its directors, officers, employees, consultants, representatives and agents of the foregoing as it relates to the Company: (a) have conducted all transactions, negotiations, discussions and dealings in full compliance with Applicable Anti-Corruption Laws and Regulations; and (b) have not made any offer, payment, promise to pay, or authorization of payment of money or anything of value to any government official, or any other person while having reasonable grounds to believe that all or a portion of such money or thing of value will be offered, given or promised, directly or indirectly, to a government official, for the purpose of (i) assisting the parties in obtaining, retaining or directing business; (ii) influencing any act or decision of a government official in his, her or its official capacity; (iii) inducing a government official to do or omit to do any act in violation of his, her or its lawful duty, or to use his, her or its influence with a government or instrumentality thereof to affect or influence any act or decision of such government or department, agency, instrumentality or entity thereof; or (iv) securing any improper advantage. The Company, its Subsidiaries, and to the knowledge of the Company, its directors, officers, employees, consultants, representatives and agents of the foregoing as it relates to the Company: (a) have not entered into any healthcare reimbursement fee-splitting arrangement with any actual or potential patient, health care provider, business partner, governmental employee or other person in a position to assist or hinder the Company and/or the Subsidiaries in violation of Applicable Law; (b) have not (i) made any payment for, or agreed to make any payment for, any goods, services, or property in excess of fair market value; (ii) made or caused to be made a false statement or representation of a material fact in any application for any benefit or payment under any Health Care Program; (iii) made or caused to be made any false statement or representation of a material fact for use in determining rights to any benefit or payment under any Health Care Program; (iv) presented or caused to be presented a claim for reimbursement for services under any Health Care Program that is for an item or service that is known or should be known to be: (I) not provided as claimed, (II) not provided in accordance with Applicable Law, or (III) false or fraudulent; (v) failed to disclose knowledge of the occurrence of any event materially affecting the initial or continued right to any benefit or payment under any Health Care Program; (vi) offered, paid, solicited, or received any remuneration (including any kickback, bribe or rebate), overtly or covertly, in cash or in kind: (I) in return for referring an individual to the Company or any Subsidiary for the furnishing or arranging for the furnishing of any item or service for which payment may be made in whole or in part by any Health Care Programs or third party payer, or (II) in return for purchasing, leasing or ordering any good, facility, service, or item for which payment may be made in whole or in part by any Health Care Program or any third party payer, that would, individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect. Neither the Company nor the Subsidiaries nor to the knowledge of the Company, any director, officer, employee, consultant, representative or agent of foregoing, has (i) conducted or initiated any review, audit, or internal investigation that concluded the Company, a Subsidiary or any director, officer, employee, consultant, representative or agent of the foregoing violated such laws or committed any material wrongdoing, or (ii) made a voluntary, directed, or involuntary disclosure to any Governmental Authority responsible for enforcing anti-bribery or anti-corruption laws, in each case with respect to any alleged act or omission arising under or relating to non-compliance with any such laws, or received any notice, request, or citation from any person alleging non-compliance with any such laws; |
(ll) | Previous Acquisitions. All previous acquisitions completed by the Company or any of the Subsidiaries of any securities, businesses, assets or products of any other entity have been fully and properly disclosed in the Public Disclosure Documents, were completed in compliance with all Applicable Laws and Applicable Securities Laws and all necessary corporate and regulatory approvals, consents, authorizations, registrations, and filings required in connection therewith were obtained and complied with; the Company or the Subsidiaries, as the case may be, conducted all due diligence procedures in connection with such previous acquisitions as are standard and customary for transactions of such nature; |
(mm) | Operations of Business and Title to Business Assets. All material activities conducted by the Company and/or its Subsidiaries are truly and accurately described, in all material respects, in the Public Disclosure Documents and comprise all of the material business activities of the Company and the Subsidiaries, on a consolidated basis. The Company and the Subsidiaries have good, valid and marketable title to and have all necessary rights in respect of all of their business assets as owned, leased, licensed, loaned, operated or used by them or others in the operation of the business, or over which they have rights, free and clear of liens, and no other rights or business assets are necessary for the conduct of the business of the Company or the Subsidiaries as currently conducted or as proposed to be conducted except for Encumbrances on property or assets leased by the Company or its Subsidiaries; |
- 28 -
(nn) | Research and Development. All research and development activities, including testing, quality assurance, training programs and research and analysis activities, conducted by the Company and its Subsidiaries in connection with their business is being conducted in accordance with standard industry practices and in compliance with all industry, safety, management and training standards applicable to the business of the Company and its Subsidiaries, all such systems, procedures and practices, including qualified technical and engineering personnel, required in connection with such activities are in place as necessary and are being complied with; |
(oo) | Business Operations. To the knowledge of the Company: (i) all material agreements with third parties (including all suppliers, vendors, distributors and customers) for the provision/supply or sale of equipment, technologies, products or services in connection with the business of the Company and the Subsidiaries have been entered into and are being performed in compliance with their terms; and (ii) the Company and its Subsidiaries have all necessary access to the requisite supplies of technology products, which meet quantity and quality specifications required in order to ensure timeliness of product delivery and otherwise to conduct their business as currently conducted or proposed to be conducted; |
(pp) | Business Relationships. There exists no actual or, to the knowledge of the Company, threatened termination, cancellation or limitation of, or any material adverse modification or material change in, the business relationship of the Company or the Subsidiaries, with any supplier, vendor, distributor or customer, or any group of suppliers, vendors, distributors or customers whose business with or whose inventories or purchases provided to the business of the Company or the Subsidiaries are individually or in the aggregate material to the assets, business, properties, operations or financial condition of the Company or the Subsidiaries. All such business relationships are intact and mutually cooperative, and there exists no condition or state of fact or circumstances that would prevent the Company or the Subsidiaries from conducting such business with any such supplier, vendor, distributor or customer, or group of suppliers, vendors, distributors or customers in the same manner in all material respects as currently conducted or proposed to be conducted; |
(qq) | The Healthcare Programs and Third Party Payers. |
(i) | The Company and each Subsidiary has complied with all laws, rules, regulations, standards, policies and procedures of the Health Care Programs applicable to the Company and the Subsidiaries, and has filed all claims, invoices, returns, cost reports and other forms (including, but not limited to all enrollment forms, CMS-855 forms and other documentation required to participate in any Health Care Program or with any other third party payer), the use of which is required or permitted by such Health Care Programs, in the form and manner, together with all supporting documentation, prescribed by such Health Care Programs, except where the failure to do so would not, individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect. |
- 29 -
(ii) | All claims, returns, invoices, and other forms and documentation submitted by the Company or any Subsidiary to any Health Care Program or to any other public or private third party payer since the inception of the business of the Company and the Subsidiaries have been true, complete, correct and accurate in all material respects. No deficiency in any such claims, returns, invoices, and other filings, including claims for overpayments or deficiencies for late filings, has been asserted or threatened by any federal or state agency or instrumentality or other carrier or intermediary relating to Medicare or Medicaid claims or by any other public or private third party payer that would, individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect. |
(iii) | Neither the Company nor any Subsidiary has been subject to any audit relating to fraudulent Medicare or Medicaid procedures or practices. Neither the Company nor any Subsidiary has received a written inquiry from any Governmental Authority or any Health Care Program or from any agent of such Health Care Program, including, without limitation, the Centers for Medicare and Medicaid Services ("CMS"), the Department of Health and Human Services, the Department of Justice, the Food and Drug Administration ("FDA"), the Department of Health and Human Services Office of Inspector General ("OIG"), the Federal Trade Commission, the Drug Enforcement Administration, Medicare Administrative Contractors, state Attorneys General, state Medicaid Fraud Control Unit, other state agencies, or other bodies that regulate the Company's and Subsidiaries' businesses and operations, that would, individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect. |
(iv) | To the knowledge of the Company, there is no basis for any claim or request for recoupment or reimbursement from the Company or any Subsidiary by, or for reimbursement by the Company or any Subsidiary of, and neither the Company nor any Subsidiary has received any overpayments from, any federal or state agency or instrumentality or other carrier or intermediary relating to Medicare or Medicaid claims or any other Health Care Program or any other public or private third party payer, that would, individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect. |
(v) | The Company and each Subsidiary, as applicable, has routinely collected all co-payments, coinsurance and deductibles from patients in accordance with all laws, rules, regulations, standards, policies and procedures of the Health Care Programs and of the applicable public or private third party payer, except where the failure to do so would not, individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect. For each patient, the Company and each Subsidiary, as applicable, has maintained complete and accurate clinical documentation of the medical necessity of all services and supplies provided by the Company or Subsidiary to such patient, except where the failure to do so would not, individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect. For each patient, the Company or Subsidiary, as applicable, has maintained complete and accurate financial and other documentation required for billing Health Care Programs or any other public or private third party payer, except where the failure to do so would not, individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect. |
(vi) | To the knowledge of the Company, neither the Company nor any Subsidiary has employed or contracted with any person sanctioned or excluded from participation with any Health Care Program or debarred from contracting with any federal or state agency. |
- 30 -
(vii) | The Company: (i) has all material licenses, registrations, approvals and other requirements to meet the requirements of the FDA and analogous state agencies; (ii) is in compliance in all material respects with the statutes, regulations, guidelines and policies of the FDA and analogous state agencies; and (iii) has no actual knowledge and is unaware of any material non-compliance with the statutory and regulatory requirements of the FDA and analogous state agencies. |
(rr) | Patient Privacy. The Company and each Subsidiary has at all times complied with all applicable federal, state and local laws and regulations regarding the confidentiality and security of health related information, including, but not limited to the Health Insurance Portability and Accountability Act of 1996 ("HIPAA"), as it may be amended from time to time, and the Health Information Technology for Economic and Clinical Health Act, as incorporated in the American Recovery and Reinvestment Act of 2009 and as it may be amended (the "HITECH Act"), and the requirements of all regulations promulgated pursuant to HIPAA and the HITECH Act, including without limitation the regulations codified at 45 CFR Parts 160 and 164. Neither the Company nor any Subsidiary has experienced a breach of state or federal privacy or security laws or regulations; |
(ss) | Privacy and Consumer Protection. The Company and each of the Subsidiaries has complied, in all material respects, with all applicable privacy and consumer protection legislation and none has collected, received, stored, disclosed, transferred, used, misused or permitted unauthorized access to any information protected by privacy laws, whether collected directly or from third parties, in an unlawful manner; |
(tt) | Intellectual Property Rights. The Company and the Subsidiaries own all right, title and interest in and with respect to all Owned Intellectual Property, being all the material Intellectual Property that is used by the Company or the Subsidiaries in connection with their businesses and operations as presently conducted or proposed to be conducted, free and clear of any Encumbrances, and the Owned Intellectual Property is fully transferable, alienable and licensable without restriction. The Intellectual Property used in the business of the Company and its Subsidiaries is valid and enforceable and the Company and/or the Subsidiaries have not received any notice, claim, threats or allegation from any person for any violation or infringement by the Company and/or the Subsidiaries of any rights with respect to any Intellectual Property or questioning the right of the Company and/or the Subsidiaries to unconditionally use, possess, transfer, convey, distribute or otherwise dispose of any (i) technology, (ii) Owned Intellectual Property, or (iii) licensed Intellectual Property used or distributed by the Company and/or the Subsidiaries. The Company's and the Subsidiaries' use of the Intellectual Property used in the business of the Company and/or its Subsidiaries, past and present, has not and does not violate or constitute a breach of any agreement, obligation, promise or commitment by which the Company and/or the Subsidiaries may be bound or constitute a violation of any laws, regulations, ordinances, codes or statutes in any jurisdiction; |
- 31 -
(uu) | Employment. The Company and the Subsidiaries are in material compliance with all laws respecting employment and employment practices, terms and conditions of employment, occupational health and safety, pay equity and wages. All material employee plans have been maintained in compliance with their terms and with the requirements prescribed by any and all statutes, orders, rules and regulations that are applicable to such employee plans, in each case in all material respects and have been publicly disclosed to the extent required by Applicable Securities Laws and all material accruals for unpaid vacation pay, premiums for unemployment insurance, health premiums, federal or state pension plan premiums, accrued wages, salaries and commissions and employee benefit plan payments have been reflected in the books and records of the Company and/or the Subsidiaries, as applicable; |
(vv) | Labour Disruption. There is not currently any labour disruption, conflict, slowdown, stoppage, complaint or grievance threatened or, to the knowledge of the Company, pending against the Company or the Subsidiaries which is adversely affecting or could adversely affect, in a material manner, the carrying on of the business of the Company and the Subsidiaries, on a consolidated basis; and no union representation question exists respecting the employees of the Company and no collective bargaining agreement is in place or currently being negotiated by the Company; |
(ww) | Employee Benefit Plans. Each of the Company and the Subsidiaries has satisfied all obligations under, and there are no outstanding defaults or violations with respect to, and no taxes, penalties, or fees are owing or exigible under or in respect of, any employee benefit, incentive, pension, retirement, stock option, stock purchase, stock appreciation, health, welfare, medical, dental, disability, life insurance and similar plans, arrangements or practices relating to the current or former employees, officers or directors of the Company or any of the Subsidiaries maintained, sponsored or funded by them, whether written or oral, funded or unfunded, insured or self-insured, registered or unregistered and all contributions or premiums required to be paid thereunder have been made in a timely fashion and any such plan or arrangement which is a funded plan or arrangement is fully funded on an ongoing and termination basis; |
(xx) | Environmental Claims. There have been no past unresolved, and to the knowledge of the Company there are no pending or threatened claims, complaints, notices or requests for information received by the Company or the Subsidiaries with respect to any alleged violation of any Environmental Law; no conditions exist at, on or under any property now or previously owned, operated or leased by the Company or the Subsidiaries which, with the passage of time, or the giving of notice or both, would give rise to liability under any Environmental Law that, individually or in the aggregate, has or may reasonably be expected to have, a Material Adverse Effect. There are no orders or directions relating to environmental matters requiring any material work, repairs, construction or capital expenditures to be made with respect to any of the assets of the Company or the Subsidiaries, nor has the Company or the Subsidiaries received notice of any of the same; |
(yy) | Hazardous Substances. Except in compliance with Applicable Laws, neither the Company nor any Subsidiary has used any of its property or facilities to generate, manufacture, process, distribute, use, treat, store, dispose of, transport or handle any pollutants, contaminants, chemicals or industrial toxic or hazardous waste or substances ("Hazardous Substances") in a manner that could, individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect. Except in compliance with Applicable Laws, neither the Company nor any Subsidiary has caused or permitted the release, in any manner whatsoever, of any Hazardous Substances on or from any of its properties or assets or any such release on or from a facility owned or operated by third parties but with respect to which the Company or a Subsidiary is or may reasonably be alleged to have material liability or has received any notice that it is potentially responsible for a federal, provincial, state, municipal or local clean-up site or corrective action under any Applicable Laws, statutes, ordinances, by-laws, regulations or any orders, directions or decisions rendered by any ministry, department or administrative regulatory agency relating to the protection of the environment, occupational health and safety or otherwise relating to or dealing with Hazardous Substances in a manner that could, individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect; |
- 32 -
(zz) | Compliance with Industry Standards. To the knowledge of the Company, all products manufactured and services provided to customers, in whole or in part, by the Company or any Subsidiary and all component parts which are supplied to the Company or any Subsidiary are manufactured or provided in full compliance with and meet industry specific standards set by all organizations which pertain to the business of the Company and each Subsidiary and the Company's and each Subsidiary's products and services have met and satisfied, and continue to meet and satisfy, all product safety standards necessary to permit the sale of the Company's and each Subsidiary's products and services where they are currently sold; |
Matters Related to the Offering
(aaa) | Breach or Violation. The execution and delivery of each of the Offering Documents and the Transaction Documents, the performance by the Company of its obligations hereunder or thereunder and the issuance, sale and delivery of the Common Shares and Warrants that comprise the Offered Securities and the Compensation Options and the issuance and delivery of the Warrant Shares and Compensation Shares upon the exercise of the Warrants and Compensation Options, as applicable, do not and will not: |
(i) | require the consent, approval, authorization, registration or qualification of or with any Governmental Authority, stock exchange, Securities Commissions or other third party, except such as have been obtained or such as may be required (and shall be obtained by the Company prior to the Closing Time) under Applicable Securities Laws or stock exchange regulations; or |
(ii) | result in a breach of or default under, and do not and will not create a state of facts which, after notice or lapse of time or both, will result in a breach of or default under, and do not and will not conflict with: |
(A) | any of the terms, conditions or provisions of the articles, by laws or resolutions of the shareholders, directors or any committee of directors of the Company or any Subsidiary or any Material Agreement to which the Company or any Subsidiary is a party or by which it or they are contractually bound; or |
(B) | any statute, rule, regulation or law applicable to the Company or any Subsidiary, including, without limitation, the Applicable Securities Laws, or any judgment, order or decree of any Governmental Authority or court having jurisdiction over the Company; and |
(iii) | do not affect the rights, duties and obligations of any parties to any Material Agreement to which the Company or any Subsidiary is a party, nor give a party the right to terminate any such Material Agreement by virtue of the application of terms, provisions or conditions in such Material Agreement; |
- 33 -
(bbb) | Validity and Enforceability. This Transaction Documents and the performance of the transactions contemplated hereby and thereby have been duly authorized by all necessary corporate action of the Company, have been executed and delivered by the Company and constitute valid and binding obligations of the Company and each are enforceable against the Company in accordance with their respective terms, except as enforcement thereof may be limited by bankruptcy, insolvency, reorganization, moratorium and other laws relating to or affecting the rights of creditors generally and except as limited by the application of equitable principles when equitable remedies are sought, and by the fact that rights to indemnity, contribution and waiver, and the ability to sever unenforceable terms, may be limited by Applicable Law; |
(ccc) | Offered Securities and Compensation Options. At the Time of Closing, all necessary corporate action will have been taken by the Company to: (i) authorize and reserve for issuance the Common Shares underlying the Offered Securities and when certificates (whether in electronic or definitive form) representing such Common Shares have been issued, delivered and paid for, such Common Shares will be validly issued as fully paid and non-assessable common shares will not be issued in violation of or subject to any pre-emptive rights or contractual rights to purchase securities issued by the Company; (ii) validly create, authorize and issue the Warrants pursuant to the Warrant Indenture and the Compensation Options on the Closing Date; and (iii) authorize and reserve for issuance the Warrant Shares and Compensation Shares as fully paid and non-assessable Common Shares upon the due exercise of the Warrants and Compensation Options in accordance with the terms of the Warrants and Compensation Options; |
(ddd) | Approvals, Permits, Authorizations. At the Time of Closing, all consents, approvals, permits, authorizations or filings as may be required for the execution and delivery of the Transaction Documents and the issuance of the Offered Securities, the Compensation Options and the reservation for issuance of the Warrant Shares and Compensation Shares upon the due exercise of the Warrants and Compensation Options, as applicable, and the completion of the transactions contemplated hereby and thereby, will have been made or obtained, as applicable; |
(eee) | Form of Certificates. At the Time of Closing, the forms and terms of the certificates representing the Common Shares, if applicable, and the Compensation Options will have been approved and adopted by the board of directors of the Company and the form and terms of the certificates representing the Common Shares, if applicable, and the Compensation Options will not conflict with any Applicable Law; |
(fff) | Transfer Agent. The Transfer Agent, at its principal offices in the City of Vancouver, British Columbia has been duly appointed as transfer agent and registrar in respect of the Common Shares; |
(ggg) | Warrant Agent. At the Time of Closing, the Warrant Agent will have been duly appointed as warrant agent under the Warrant Indenture, in respect of the Warrants; |
(hhh) | Fees and Commissions. Other than the Underwriters pursuant to this Underwriting Agreement, there are no persons acting on behalf of the Company, or to the knowledge of the Company, purporting to act at the request or on behalf of the Company, that are entitled to any brokerage or finder's fee in connection with the Offering or the transactions contemplated by this Underwriting Agreement; |
- 34 -
(iii) | Demand to Proceeds. Other than the Company, there is no person that is or will be entitled to demand the proceeds of this Offering under the terms of any Material Agreement or otherwise; |
(jjj) | Eligibility. Based on the provisions of the Income Tax Act (Canada) and the regulations thereunder (together, the "Tax Act") in force on the date hereof and proposals to amend the Tax Act publicly announced by or on behalf of the Minister of Finance (Canada) prior to the date hereof, provided that the Common Shares are listed on a designated stock exchange (which includes the TSXV) or the Company is a "public corporation" (as defined in the Tax Act), the Common Shares will be qualified investments for the purposes of the Tax Act at the time of their acquisition under the Offering for trusts governed by registered retirement savings plans, registered retirement income funds, deferred profit sharing plans, registered education savings plans, registered disability savings plans and tax-free savings accounts, each as defined in the Tax Act. |
(kkk) | Money Laundering Laws. The operations of the Company and the Material Subsidiary are and have been conducted at all times in compliance with applicable financial recordkeeping and reporting requirements and the money laundering statutes and the rules and regulations thereunder and any related or similar rules, regulations or guidelines, issued, administered or enforced by any governmental agency (collectively, the "Money Laundering Laws") and no action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Company or the Material Subsidiary with respect to the Money Laundering Laws is pending or, to the best knowledge of the Company, threatened; |
(lll) | Due Diligence Requests. All information provided by the Company to the Underwriters in relation to their due diligence requests is accurate in all material respects as at its respective date as stated therein and the Company has not withheld from the Underwriters any adverse material facts known to the Company relating to the Company or the Offering; |
(mmm) | Sanctions. Neither the Company nor the Material Subsidiary nor, to the knowledge of the Company, any director, officer, agent or employee of the Company or the Material Subsidiary (i) is, or is controlled by or is acting on behalf of, an individual or entity that is currently the subject of any sanctions administered or enforced by the United States (including any sanctions administered or enforced by the Office of Foreign Assets Control of the U.S. Department of the Treasury, the U.S. Department of State or the Bureau of Industry and Security of the U.S. Department of Commerce), Canada (including sanctions administered or enforced by the Office of the Superintendent of Financial Institutions or other relevant sanctions authority) (collectively, "Sanctions"), (ii) is located, organized or resident in a country or territory that is, or whose government is, the subject of Sanctions that broadly prohibit dealings with that country or territory or (iii) will, directly or indirectly, use the proceeds of the Offering, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other individual or entity in any manner that would result in a violation of any Sanctions by, or could result in the imposition of Sanctions against, any individual or entity (including any individual or entity participating in the Offering, whether as underwriter, advisor, investor or otherwise); and |
(nnn) | Significant Acquisitions or Dispositions. Except as disclosed in the Public Disclosure Documents, the Company has not completed any "significant acquisition" or "significant disposition", (as such terms are used in NI 44-101) that would require the inclusion of any additional financial statements or pro forma financial statements in the Preliminary Prospectus and Final Prospectus pursuant to Applicable Securities Laws. |
- 35 -
8. | Additional Covenants of Protech |
In addition to any other covenant of Protech set forth in this Underwriting Agreement, Protech covenants with the Underwriters that:
(a) | Stock Exchange Listing. Prior to the filing of the Final Prospectus with the Securities Commissions, Protech will file or cause to be filed with the TSXV all necessary documents and will take, or cause to be taken, all commercially reasonable steps to ensure that the Offered Securities and Compensation Shares have been approved (or conditionally approved for listing and for trading on the TSXV, subject only to satisfaction by Protech of the Standard Listing Conditions), and Protech shall thereafter use its commercially reasonable efforts to fulfill the Standard Listing Conditions within the time period prescribed by the TSXV; |
(b) | Other Filings. Protech will make all necessary filings, use commercially reasonable efforts to obtain all necessary regulatory consents and approvals (if any) and will pay all filing fees required to be paid in connection with the transactions contemplated in this Underwriting Agreement; |
(c) | Press Releases. Subject to compliance with applicable law, any press release of Protech relating to the Offering or issued prior to the closing of the Offering will be provided in advance to the Co-Lead Underwriters on behalf of the Underwriters, and Protech will use commercially reasonable efforts to agree to the form and substance thereof with the Co-Lead Underwriters, each acting reasonably, on behalf of the Underwriters, prior to the release thereof; |
(d) | Reporting Issuer Status. Protech will use its reasonable best efforts to maintain its status as a "reporting issuer" (or the equivalent thereof) not in default pursuant to the requirements of the Canadian Securities Laws to the date that is two years following the Closing Date provided that this covenant shall not prevent Protech from completing any transaction which would result in Protech ceasing to be a "reporting issuer" so long as the holders of Common Shares, Warrants, Compensation Options and Compensations Shares receive securities of an entity which is listed on a stock exchange in Canada or the holders of the Common Shares and Warrants have approved the transaction; |
(e) | Maintaining Stock Exchange Listings. Protech will use its reasonable best efforts to maintain the listing of its Common Shares on the TSXV or such other recognized stock exchange or quotation system as the Co-Lead Underwriters may approve, acting reasonably, to the date that is two years following the Closing Date provided that this covenant shall not prevent Protech from completing any transaction which would result in Protech not maintaining the listing of such securities so long as the holders of Common Shares, Warrants, Compensation Options and Compensations Shares receive equivalent securities of an entity which is listed on a stock exchange in Canada or the holders of the Common Shares and Warrants have approved the transaction; |
(f) | Use of Proceeds. Protech confirms its intention to use the net proceeds from the sale of the Offered Securities in accordance with the descriptions set forth under the heading "Use of Proceeds" in the Prospectuses; |
- 36 -
(g) | Blackout Period. Protech agrees not to, directly or indirectly, issue, sell, offer, grant an option or right in respect of, or otherwise dispose of, or enter into any derivative transaction that has the effect of any of the foregoing, or agree to or announce any intention to issue, sell, offer, grant an option or right in respect of, or otherwise dispose of, or enter into any derivative transaction that has the effect of any of the foregoing, any Common Shares or any securities convertible into or exchangeable for Common Shares, other than (i) in connection with the Private Placements; (ii) upon exercise of the Over-Allotment Option; (iii) under existing director or employee stock options, bonus or purchase plans or similar share compensation arrangements as detailed in the Company's most recently filed management discussion and analysis; (iv) under director or employee stock options or bonuses granted subsequently in accordance with regulatory approval and in a manner consistent with the Company's past practice; (v) upon the exercise of convertible securities, warrants or options outstanding prior to the date of the Bid Letter; (vi) pursuant to previously announced payments and/or other corporate acquisitions announced prior to the date of the Bid Letter; (vii) in connection with obligations of the Company in respect of existing agreements as at the date of the Bid Deal Letter; or (viii) the issuance of securities by the Company in connection with acquisitions in the normal course of business, each for a period ending 90 days from the Closing Date, without the prior written consent of Beacon, such consent not to be unreasonably withheld or delayed; |
(h) | Lock-Up Agreements. It shall be a condition of closing of the Offering in favour of the Underwriters that each of the directors and senior officers of the Company shall agree, in a lock-up agreement in the form attached hereto as Schedule "B" to be executed concurrently with the closing of the Offering, that in consideration of the benefit that the Offering will confer upon such persons that for a period of 90 days following the Closing Date, each will not directly or indirectly, offer, sell, contract to sell, grant any option to purchase, make any short sale, lend, swap, or otherwise dispose of, or transfer, assign, or announce any intention to do so, any Common Shares or any securities of the Company convertible into or exchangeable for Common Shares, whether now owned directly or indirectly, or under such person's control or direction, or with respect to which such person has beneficial ownership, or enter into any transaction or arrangement that has the effect of transferring, in whole or in part, any of the economic consequences of ownership of Common Shares, whether such transaction is settled by the delivery of Common Shares, other securities, cash or otherwise, other than pursuant to a bona fide take-over bid or any other similar transaction made generally to all of the shareholders of the Company, provided that, in the event the change of control or other similar transaction is not completed, such securities shall remain subject to the lock-up agreement; and |
(i) | Compensation Options. The Company shall ensure that the Compensation Options, upon issuance, shall be duly and validly created, authorized and issued and shall have the attributes corresponding in all material respects to the description thereof set forth in this Underwriting Agreement; and ensure that the Compensation Shares shall be duly and validly authorized and reserved for issuance and, when issued in accordance with the terms of the Compensation Options, shall be issued as fully paid and non-assessable common shares. |
9. | Representations, Warranties and Covenants of the Underwriters |
(1) | Each Underwriter hereby severally, and not jointly, nor jointly and severally, represents and warrants to the Company that: |
- 37 -
(a) | it is, and will remain so, until the completion of the Offering, appropriately registered under Applicable Securities Laws so as to permit it to lawfully fulfill its obligations hereunder; and |
(b) | it has good and sufficient right and authority to enter into this Underwriting Agreement and complete the transactions contemplated under this Underwriting Agreement on the terms and conditions set forth herein. |
(2) | The Underwriters hereby covenant and agree with Protech that: |
(a) | Offering Jurisdictions and Offering Price. During the period of distribution of the Offered Securities by or through the Underwriters or a Selling Firm, the Underwriters will offer and sell, and the Underwriters will instruct any Selling Firm to offer and sell, the Offered Securities to the public only in the Qualifying Jurisdictions directly and through other duly registered investments dealers and brokers (the Underwriters, together with such other investment dealers and brokers, are referred to herein as the "Selling Firms"), upon the terms and conditions set forth in the Final Prospectus and in this Underwriting Agreement. The Underwriters shall, and shall require any Selling Firm to offer for sale to the public and sell the Offered Securities only in those jurisdictions where they may be lawfully offered for sale and sold. The Underwriters will use all commercially reasonable efforts to complete and cause each Selling Firm to complete the distribution of the Offered Securities as soon as reasonably practicable and to re-sell the Offered Securities at the Offer Price, and if any such Offered Securities remain unsold after such reasonable efforts, the Underwriters may sell such securities at such lower price as is permitted under applicable law. For the purposes of this Section 9(2)(a), the Underwriters shall be entitled to assume that the Offered Securities are qualified for distribution in each Qualifying Jurisdiction where a receipt for the Final Prospectus shall have been obtained or deemed to be obtained from the applicable Securities Commission following the filing of the Final Prospectus. |
(b) | Compliance with Canadian and Foreign Securities Laws. The Underwriters will comply and will instruct any Selling Firm to comply, with Applicable Securities Laws applicable to the Underwriters in connection with the offer to sell and the distribution of the Offered Securities in the Qualifying Jurisdictions and the laws of any foreign jurisdictions (subject to paragraph (c)) where it offers or sells Offered Securities so that no prospectus, registration statement, offering memorandum or other similar requirements under Applicable Securities Laws is required to be filed and/or delivered by the Company in such foreign jurisdictions or compliance by the Company with regulatory requirements (including any continuous disclosure obligations or similar reporting obligations) under the laws of any jurisdiction other than the Qualifying Jurisdictions, including, without limitation, the United States and so that no additional governmental filing fees which relate to such other jurisdictions are required to be paid and the Underwriters shall not, and shall instruct any Selling Firm to not, make any representation or warranty with respect to the Company or the Offered Securities, other than as set forth in the Offering Documents. |
(c) | Compensation Options. Each Underwriter acknowledges that none of the Compensation Options or Compensation Shares have been or will be registered under the U.S. Securities Act or the securities laws of any state of the United States. |
- 38 -
(d) | Authorization. Each Underwriter (or U.S. Affiliate thereof), as applicable, is, and will remain so, until completion of the Offering, appropriately registered under Applicable Securities Laws so as to permit them to lawfully fulfil their obligations hereunder. Each Underwriter has good and sufficient authority to enter into this Underwriting Agreement and complete the transactions contemplated hereunder on the terms and conditions set forth herein. The Underwriters have not provided any marketing materials to any potential investors in connection with the Offering (other than the template version of the term sheet filed on SEDAR). |
(e) | U.S. Offers and Sales. The Underwriters will comply with the obligations set out in Schedule "A" to this Underwriting Agreement. Notwithstanding the foregoing, an Underwriter will not be liable to the Company under this Section or Schedule "A" with respect to a violation by another Underwriter or its U.S. Affiliate(s) of the provisions of this Section or Schedule "A" if the former Underwriter or its U.S. Affiliate, as applicable, is not itself also in violation. |
(f) | Completion of Distribution. The Underwriters will notify Protech when, in the Underwriters' opinion, the Underwriters have ceased the distribution of the Offered Securities, and, within 30 days after completion of the distribution, will provide Protech, in writing, with a breakdown of the number of Offered Securities distributed in each of the Qualifying Jurisdictions where that breakdown is required by a Securities Commission for the purpose of calculating fees payable to, or making filings with, that Securities Commission. |
(3) | Liability on Default. The obligations of the Underwriters under this Underwriting Agreement are several and not joint, nor joint and several and no Underwriter shall be liable for any act, omission, default or conduct by any of the other Underwriters, any Selling Firms appointed by any other Underwriter or another Underwriter's U.S. Affiliate, as the case may be, or for any default resulting from the Company's failure to comply with Applicable Securities Laws (provided such default was not caused by such Underwriter). |
10. | Closing |
(1) | Location of Closing. The purchase and sale of the Offered Units will be completed at the offices of DLA Piper (Canada) LLP in Toronto, Ontario at the Time of Closing on the Closing Date. |
(2) | Closing Mechanics. At the Time of Closing on the Closing Date, subject to the terms and conditions contained in this Underwriting Agreement, Protech shall deliver the Offered Units and the Compensation Options to the Underwriters in the form of certificates representing the Common Shares and the Warrants or in the form of an electronic deposit pursuant to the non-certificated issue system (the "NCI System") maintained by CDS against payment of the aggregate Offer Price by wire transfer on the Closing Date payable to Protech. Protech will, at the Time of Closing on the Closing Date and upon such payment of the aggregate Offer Price to Protech, make payment in full of the Underwriting Fee, Compensation Options and expenses of the Underwriters which shall be made by Protech directing Beacon, on behalf of the Underwriters, to withhold the Underwriting Fee and expenses of the Underwriters from the payment of the aggregate Offer Price. Certificates, if any, representing the Common Shares and the Warrants shall be registered in such names as the Underwriters may request, provided such request is made at least two (2) Business Days prior to the Closing Date. Any electronic deposit shall be made to such CDS instant deposit numbers as the Co-Lead Underwriters may request, provided that such request is made at least one (1) Business Day prior to the Closing Date. |
- 39 -
11. | Over-Allotment Option and Over-Allotment Closing |
(1) | The Company hereby grants to the Underwriters, in the respective percentages set out in Section 17 of this Underwriting Agreement, the Over-Allotment Option to purchase the Over-Allotment Securities at the applicable offer price as follows: (a) units at the Offer Price, with each unit being comprised of one Common Share and one-half of one Warrant; (b) Common Shares at a price of $1.119 per share; (c) Warrants at a price of $0.062 per Warrant; or (d) any combination of units, Common Shares and Warrants, so long as the aggregate number of Common Shares and Warrants that may be issued upon exercise of the Over-Allotment Option does not exceed 3,261,000 Common Shares and 1,630,500 Warrants. The Over-Allotment Option may be exercised, in whole or in part and from time to time, prior to its expiry in accordance with the provisions of this Underwriting Agreement by Beacon delivering to the Company written notice of exercise, setting out the number of units, Common Shares and/or Warrants to be purchased by the Underwriters, which notice must be received by the Company not later than 5:00 p.m. (Toronto time) on the date that is thirty (30) days after the Closing Date. Upon the furnishing of the notice, the Underwriters will severally (and not jointly nor jointly and severally) be committed to purchase in the respective percentages set out in Section 17 of this Underwriting Agreement and the Company will be committed to issue and sell in accordance with and subject to the provisions of this Underwriting Agreement, the number and composition of Over-Allotment Securities indicated in the notice. Over-Allotment Securities may be purchased by the Underwriters only for the purpose of satisfying over-allocations made in connection with the distribution of the Offered Securities and for market stabilization purposes permitted pursuant to Canadian Securities Laws. |
(2) | In the event that the Over-Allotment Option is exercised by the Underwriters and any of the Over-Allotment Securities are purchased by the Underwriters, the closing shall be held at the offices mentioned in Section 10 above, or at such other place as shall be agreed upon by the Underwriters and the Company, on the Over-Allotment Closing Date. |
(3) | At the Time of Closing on an Over-Allotment Closing Date, if any, for the exercise of the Over-Allotment Option, subject to the terms and conditions contained in this Underwriting Agreement, the Company shall deliver the Over-Allotment Securities to the Underwriters in the form of certificates representing the Common Shares and the Warrants or in the form of an electronic deposit pursuant to the NCI System maintained by CDS, against payment of the applicable aggregate offer price by wire transfer on such Over-Allotment Closing Date payable to Protech. Protech will, at the Time of Closing on such Over-Allotment Closing Date, and upon such payment of the applicable aggregate offer price to Protech, make payment in full of the Underwriting Fee which shall be made by Protech directing Beacon to withhold the Underwriting Fee from the payment of the applicable aggregate offer price. Certificates, if any, representing the Over-Allotment Securities shall be registered in such names as the Underwriters may request, provided such request is made at least two (2) Business Days prior to the Over-Allotment Closing Date. Any electronic deposit shall be made to such CDS instant deposit numbers as the Co-Lead Underwriters may request, provided that such request is made at least one (1) Business Day prior to the Over-Allotment Closing Date. |
(4) | The closing of the Over-Allotment Option shall be conditional upon the conditions set forth in Section 6 that apply to an Over-Allotment closing, except that such conditions that apply shall be satisfied as at the Time of Closing on such Over- Allotment Closing Date. |
- 40 -
12. | Compensation of the Underwriters |
Protech shall pay to the Underwriters at the Time of Closing a fee (the "Underwriting Fee") equal to $0.06325 per Offered Security sold pursuant to the terms of this Underwriting Agreement (being 5.5% of the gross proceeds received by the Company from the sale of each of the Offered Securities). The Company acknowledges that the services of the Underwriters are not subject to HST and agrees that, in the event that HST becomes exigible on the Underwriting Fee, the Company shall pay such amount to the Underwriters.
As additional consideration, the Underwriters will also receive non-transferable options (the "Compensation Options") exercisable at any time up to 24 months following the Closing Date to acquire that number of Common Shares (the "Compensation Shares") at the Offer Price in an amount equal to 5.5% of the Offered Securities issued pursuant to the Offering and the exercise of the Over-Allotment Option. Notwithstanding the foregoing and for clarity, no Compensation Options will be issued in connection with any Warrants purchased individually, and not forming part of an Offered Unit, in connection with the Over-Allotment Option. The Underwriting Fee and the Compensation Options will be paid by the Company to the Underwriters on the Closing Date. If the Compensation Options are unavailable for any reason the Company shall pay the Underwriters other compensation of comparable value to the Compensation Options. Such other compensation shall be agreed to between the Company and the Underwriters, each acting reasonably.
13. | Termination Rights |
(1) | In addition to any other remedies which may be available to the Underwriters in respect of any default, act or failure to act, or non-compliance with the terms of this Underwriting Agreement by Protech, any Underwriter shall be entitled, at such Underwriter's option, to terminate and cancel, without any liability on such Underwriter's part, such Underwriter's obligations under this Underwriting Agreement to purchase the Offered Units or the Over-Allotment Securities, at or at any time prior to the applicable Time of Closing if: |
(a) | (i) any inquiry, action, investigation or other proceeding, whether formal or informal, is commenced, announced, or threatened or any order or ruling is issued by any exchange or market, or any other regulatory authority in Canada or the United States; or (ii) any law or regulation under or pursuant to any statute of Canada or of any province thereof, or of the United States or any state or territory thereof or, is promulgated or changed which inquiry, investigation, proceeding, order, ruling, law or regulation, in the opinion of such Underwriter, acting reasonably, operates to prohibit or materially restrict the distribution or trading of the Offered Securities or which, in the opinion of the Underwriter, acting reasonably, would reasonably be expected to have a significant adverse effect on the market price or value of the Offered Securities; or |
(b) | there shall occur or come into effect any material change in the business, affairs, financial condition, prospects, capital or control of the Company and its Subsidiaries, taken as a whole or any change in any material fact or a new material fact arises or is discovered that in the opinion of the Underwriter, acting reasonably, has or could reasonably be expected to have a significant adverse effect on the market price or value or marketability of the Offered Securities, Common Shares or other securities of the Company; or |
- 41 -
(c) | there should develop, occur or come into effect or existence, any event, action, state, condition or major financial occurrence of national or international consequence, including without limiting the generality of the foregoing, any natural disaster, military conflict, civil insurrection, or any terrorist action (whether or not in connection with such conflict or insurrection), pandemic (excluding COVID-19 pandemic except in the event of an unexpected and currently unpredictable material escalation in the severity of the COVID-19 pandemic), which, in the reasonable opinion of such Underwriter, seriously adversely affects or involves, or will seriously adversely affect or involve, the Canadian or United States financial market or the business, operations or affairs of the Company and the Material Subsidiaries taken as a whole or the marketability of the Offered Securities and/or Common Shares; or |
(d) | an order shall have been made or threatened to cease or suspend trading in the Common Shares or any other securities of the Company, or to otherwise prohibit or restrict in any manner the distribution or trading of the Common Shares or any other securities of the Company, or proceedings are announced or commenced for the making of any such order by any securities regulatory authority or similar regulatory or judicial authority or the TSXV, which order has not been rescinded or withdrawn; or |
(e) | any condition shall remain outstanding and uncompleted at any time after the time which it is required to be completed or waived, or Protech is in breach of any representation, warranty, condition or covenant of this Underwriting Agreement, including the requirement of the Company to make all necessary filings in any Qualifying Jurisdiction where it is not currently a reporting issuer, but in which the Prospectuses will be filed for purposes of effecting sales under the Offering in such Qualifying Jurisdictions, prior to or concurrently with the filing of the Preliminary Prospectus such that it becomes short form eligible in such Qualifying Jurisdictions. |
(2) | The rights of termination contained in this section may be exercised by any Underwriter giving written notice thereof to the Company at any time prior to the applicable Time of Closing and are in addition to any other rights or remedies the Underwriters may have in respect of any default, act or failure to act, or non- compliance by the Company in respect of any of the matters contemplated by this Underwriting Agreement or otherwise. In the event of any such termination, there shall be no further liability or obligation on the part of such Underwriter to the Company or on the part of the Company to such Underwriter except in respect of any liability or obligation under any of Section 14, Section 15 and Section 16, which will remain in full force and effect. |
14. | Indemnity |
(1) | Protech covenants and agrees to protect, indemnify, and save harmless, each of the Underwriters and their respective U.S. Affiliates, and each of their respective directors, officers, employees, affiliates and agents and each Person, if any, who controls any Underwriter or its U.S. Affiliate (individually, an "Indemnified Party" and, collectively, the "Indemnified Parties"), against all losses (other than loss of profits), claims, damages, suits, liabilities, reasonable costs, or reasonable expenses caused or incurred, whether directly or indirectly, by reason of: |
(a) | any information or statement (except for information or statements relating solely to the Underwriters and furnished by them in writing specifically for use in the Offering Documents) contained in any of the Offering Documents, or any certificate of Protech delivered hereunder, which at the time and in the light of the circumstances under which it was made contains or is alleged to contain a misrepresentation or any misstatement of a material fact or any omission or alleged omission to state in the Offering Documents any material fact (except for any information and statements relating solely to the Underwriters and furnished by them in writing specifically for use in the Offering Documents) required to be stated in the Offering Documents, or necessary to make any of the statements therein not misleading in light of the circumstances in which they were made; |
- 42 -
(b) | any order made, or inquiry, investigation or proceeding commenced by any securities regulatory authority or other competent authority based upon any misrepresentation, untrue statement or omission or alleged untrue statement or omission in the Offering Documents (except for information and statements relating solely to the Underwriters and furnished by them in writing specifically for use in the Offering Documents) that prevents or restricts the trading in any of Protech's securities or the distribution or distribution to the public, as the case may be, of any of the Offered Securities in any of the Qualifying Jurisdictions; |
(c) | Protech not complying with any requirement of Applicable Securities Laws or stock exchange requirements in connection with the transactions herein contemplated, including Protech's non-compliance with any statutory requirement to make any document available for inspection; or |
(d) | any breach of a representation or warranty of Protech contained in this Underwriting Agreement or the failure of Protech to comply with any of its obligations hereunder; |
provided that, if and to the extent that a court of competent jurisdiction in a final judgment from which no appeal can be made determines that such losses, claims, damages, suits, liabilities, costs or expenses resulted from the dishonesty, fraud, negligence, or wilful misconduct of the Indemnified Party claiming indemnity, such Indemnified Party shall promptly reimburse to the Company any funds advanced to the Indemnified Party in respect of such losses, claims, damages, suits, liabilities, costs or expenses and the indemnity provided for in this Section 14 shall cease to apply to such Indemnified Party in respect of such losses, claims, damages, suits, liabilities, costs or expenses; provided that for greater certainty, the foregoing shall not disentitle an Underwriter from indemnification hereunder to the extent that negligence, if any, relates to the Underwriter's failure to conduct adequate "due diligence".
(2) | If any Indemnified Party receives actual notice of any formal proceeding commenced against it in a court of competent jurisdiction in respect of which indemnification is or might reasonably be considered to be provided under any of Section 14(1), such Indemnified Party will notify the Company as soon as possible of the nature of such claim; provided, however, that omission to so notify the Company will relieve the Company of any liability that it may otherwise have to the Indemnified Party hereunder, to the extent the defence against such claim is materially prejudiced by such omission, or to the extent that failure to provide notice of such claim results in any material increase in the liability which the Company would otherwise have under Section 14(1) had such Indemnified Party not so delayed in giving or failed to give the notice required under this Section 14(2), and the Company shall be entitled (but not required) to assume the defence of any suit brought to enforce such claim; provided, however, that the defence shall be through legal counsel reasonably acceptable to such Indemnified Party and that no settlement may be made by the Company or such Indemnified Party without the prior written consent of the other, such consent not to be unreasonably withheld or delayed. |
(3) | In any such claim, such Indemnified Party shall have the right to retain other legal counsel to act on such Indemnified Party's behalf, provided that the reasonable fees and disbursements of such other legal counsel shall be paid by such Indemnified Party, unless: (i) the Company does not promptly assume the defence of the Claim no later than 30 days after receiving actual notice of the Claim, (ii) the Company and such Indemnified Party mutually agree to retain other legal counsel; or (iii) the representation of the Company and such Indemnified Party by the same legal counsel would, in the opinion of such counsel, be inappropriate due to actual or potential differing interests, in which event such fees and disbursements shall be paid by the Company to the extent that they have been reasonably incurred, provided that in no circumstances will the Company be required to pay the fees and expenses of more than one set of legal counsel (and any required local counsel) for all Indemnified Parties. |
- 43 -
(4) | To the extent that any Indemnified Party is not a party to this Underwriting Agreement, the Underwriters shall obtain and hold the right and benefit of this section in trust for and on behalf of such Indemnified Party. |
(5) | The Company hereby consents to personal jurisdiction in any court in which any claim that is subject to indemnification hereunder is brought against the Underwriters or any Indemnified Party and to the assignment of the benefit of this section to any Indemnified Party for the purpose of enforcement provided that nothing herein shall limit the Company's right or ability to contest the appropriate jurisdiction or forum for the determination of any such claims. |
(6) | Except as contemplated in this section, the Company shall not be liable under this section for any settlement of any claim or action effected without its prior written consent, which shall not be unreasonably withheld or delayed. |
(7) | In no event shall any Indemnified Party have any liability (whether direct or indirect, in contract or tort or otherwise) to the Company or any of its affiliates, security holders or creditors related to, arising out of or in connection with the Underwriters' engagement, performance of any service in connection therewith or any transaction contemplated thereby, other than with respect to any claim that is judicially determined by final non-appealable order issued by a court of competent jurisdiction to have resulted solely from such Indemnified Party's gross negligence or wilful misconduct. Neither party shall be liable to the other for consequential, incidental, indirect, punitive or special damages (including loss of profits, data, business or goodwill), regardless of the legal theory advanced or of any notice given as to the likelihood of such damages; provided that (a) this provision shall not limit an Indemnified Party's indemnity or contribution rights as provided for in this Underwriting Agreement or applicable law and (b) damages required to be paid by an Indemnified Party to any third party that is not an Indemnified Party may be considered direct damages to such Indemnified Party. |
(8) | The indemnity obligations of the Company hereunder are in addition to rights the Underwriters may have at common law or otherwise and shall inure to the benefit of any successors and permitted assigns of the Company and Indemnified Party. |
15. | Contribution |
In the event that the indemnity provided for in Section 14 is declared by a court of competent jurisdiction to be illegal or unenforceable as being contrary to public policy or for any other reason, the Underwriters and the Company shall contribute to the aggregate of all losses, claims, costs, damages, expenses or liabilities of the nature provided for above such that each Underwriter shall be responsible for that portion represented by the percentage that the portion of the Underwriting Fee payable by Protech to such Underwriter bears to the gross proceeds realized by Protech from the distribution, whether or not the Underwriters have been sued together or separately, and the Company shall be responsible for the balance, provided that in no event shall an Underwriter be responsible for any amount in excess of the portion of the Underwriting Fee actually received by such Underwriter. In the event that the Company may be held to be entitled to contribution from the Underwriters under the provisions of any statute or law, the Company shall be limited to contribution in an amount not exceeding the lesser of: (a) the portion of the full amount of losses, claims, costs, damages, expenses, and liabilities giving rise to such contribution for which such Underwriter is responsible; and (b) the amount of the Underwriting Fee actually received by any Underwriter. Notwithstanding the foregoing, a Person guilty of fraud, negligence, wilful misconduct, illegality or fraudulent misrepresentation shall not be entitled to contribution from any other party. Any party entitled to contribution will, promptly after receiving notice of commencement of any claim, action, suit or proceeding against such party in respect of which a claim for contribution may be made against another party or parties under this section, notify such party or parties from whom contribution may be sought, but the omission to so notify such party shall not relieve the party from whom contribution may be sought from any obligation it may have otherwise under this section, except to the extent that the party from whom contribution may be sought is materially prejudiced by such omission. The right to contribution provided herein shall be in addition to and not in derogation of any other right to contribution which the Underwriters may have by statute or otherwise by law.
- 44 -
16. | Expenses |
Whether or not the Offering is completed, all reasonable expenses of or incidental to the sale of the Offered Securities shall be borne by the Company. The reasonable fees and disbursements of legal counsel for the Underwriters (subject to a maximum of $115,000, exclusive of disbursements and applicable taxes) and the Underwriters' reasonable out- of-pocket expenses shall be borne by the Company, such fees and expenses to be deducted from the gross proceeds of the Offering otherwise payable at the closing of the Offering.
For greater certainty, if the Offering is not completed due to any failure on the part of the Company to comply with the terms and conditions of this Underwriting Agreement the Company will reimburse the Underwriters for all such reasonable costs and expenses actually incurred.
17. | Liability of the Underwriters |
(1) | The obligation of the Underwriters to purchase the Offered Units (and the Over-Allotment Securities if the Over-Allotment Option is exercised) in connection with the Offering at the applicable Time of Closing on the Closing Date (or the Over- Allotment Closing Date, as the case may be) shall be several, and not joint, nor joint and several, and shall be as to the following percentages of the Offered Securities to be purchased at any such time: |
Beacon Securities Limited | 37.5 | % | ||
Canaccord Genuity Corp. | 30.0 | % | ||
Echelon Wealth Partners Inc. | 12.5 | % | ||
Stifel GMP | 7.5 | % | ||
Industrial Alliance Securities Inc. | 7.5 | % | ||
M Partners Inc. | 5.0 | % | ||
100.0 | % |
(2) | If an Underwriter (a "Refusing Underwriter") shall not complete the purchase and sale of the Offered Units which such Underwriter has agreed to purchase hereunder for any reason whatsoever, the other Underwriters (the "Continuing Underwriters") shall be entitled, at their option, to purchase all but not less than all of the Offered Units which would otherwise have been purchased by such Refusing Underwriter pro rata according to the number of Offered Units to have been acquired by the Continuing Underwriters hereunder or in such proportion as the Continuing Underwriters shall agree in writing. If the Continuing Underwriters do not elect to purchase the balance of Offered Units pursuant to the foregoing: |
(a) | the Continuing Underwriters shall not be obliged to purchase any of the Offered Units that any Refusing Underwriter is obligated to purchase; and |
- 45 -
(b) | the Company shall not be obliged to sell less than all of the Offered Units, |
and the Company shall be entitled to terminate its obligations under this Underwriting Agreement arising from its acceptance of this offer, in which event there shall be no further liability on the part of the Company or the Continuing Underwriters, except pursuant to the provisions of Section 14, Section 15 and Section 16. Nothing in this Underwriting Agreement shall oblige any U.S. Affiliate to purchase the Offered Securities. Any U.S. broker-dealer who makes any offers or sales of the Offered Securities in the United States will do so solely as an agent for an Underwriter.
18. | Action by Underwriters |
All steps which must or may be taken by the Underwriters in connection with this Underwriting Agreement, with the exception of (i) the matters relating to termination contemplated by Section 13, (ii) any matter relating to indemnification or contribution contemplated by Section 14 and Section 15, and (iii) waiver of a condition of closing as contemplated by Section 6 and Section 11, shall be taken by Beacon, on behalf of themselves and the other Underwriters, and the execution of this Underwriting Agreement shall constitute Protech's authority for accepting notification of any such steps from, and for delivering the definitive documents constituting the Offered Securities to, or to the account of, the Underwriters. Nothing in this Underwriting Agreement is intended to create any relationship in the nature of a partnership or joint venture among the Underwriters.
19. | Governing Law |
This Underwriting Agreement shall be governed by and construed in accordance with the laws of the province of Ontario and the laws of Canada applicable therein.
20. | Survival of Warranties, Representations, Covenants and Agreements |
Except as expressly provided for in this Underwriting Agreement, all warranties, representations, covenants and agreements of Protech and the Underwriters herein contained, or contained in documents submitted or required to be submitted pursuant to this Underwriting Agreement, shall survive the purchase by the Underwriters of the Offered Securities and shall continue in full force and effect, regardless of the closing of the sale of the Offered Securities and regardless of any investigation which may be carried on by the Underwriters or the Company, or on their behalf, until the later of: (i) the second anniversary of the Closing Date; and (ii) the latest date under the Canadian Securities Laws relevant to a purchaser that a purchaser may be entitled to commence an action or exercise a right of rescission with respect to a misrepresentation contained in the Final Prospectus, and neither the Underwriters nor the purchasers may be limited or prejudiced by any investigation made by or on behalf of the Underwriters in connection with the Offering. Without limitation of the foregoing, the provisions contained in this Underwriting Agreement in any way related to the indemnification or the contribution obligations shall survive and continue in full force and effect, indefinitely, subject only to the limitation requirements of applicable law.
- 46 -
21. | No Fiduciary Relationship |
The Company hereby acknowledges that the Underwriters are acting solely as underwriters in connection with the purchase and sale of the Offered Securities. The Company further acknowledges that the Underwriters are acting pursuant to a contractual relationship created solely by this Underwriting Agreement entered into on an arm's length basis, and in no event do the parties intend that the Underwriters act or be responsible as a fiduciary to the Company, its management, shareholders or creditors or any other Person in connection with any activity that the Underwriters may undertake or have undertaken in furtherance of the purchase and sale of the Offered Securities, either before or after the date hereof. The Underwriters hereby expressly disclaim any fiduciary or similar obligations to the Company, either in connection with the transactions contemplated by this Underwriting Agreement or any matters leading up to such transactions, and the Company hereby confirms its understanding and agreement to that effect. The Company and the Underwriters agree that they are each responsible for making their own independent judgments with respect to any such transactions and that any opinions or views expressed by the Underwriters to the Company regarding such transactions, including, but not limited to, any opinions or views with respect to the price or market for the Offered Securities, do not constitute advice or recommendations to the Company. The Company hereby waives and releases, to the fullest extent permitted by law, any claims that the Company may have against the Underwriters with respect to any breach or alleged breach of any fiduciary or similar duty to the Company in connection with the transactions contemplated by this Underwriting Agreement or any matters leading up to such transactions.
22. | Notices |
All notices or other communications by the terms hereof required or permitted to be given by one party to another shall be given in writing by personal delivery or by facsimile delivered or facsimiled to such other party as follows:
(a) | to Protech at: |
1019 Town Drive | |
Wilder, Kentucky 41076 | |
Attention: | Gregory Crawford, Chairman and Chief Executive Officer |
Facsimile No.: | (859) 441-1107 |
with a copy (for informational purposes only and not constituting notice) to: | |
DLA Piper (Canada) LLP | |
1 First Canadian Place, Suite 6000 | |
100 King Street West, | |
PO Box 367 | |
Toronto, Ontario M5X 1E2 | |
Attention: | Robbie Grossman |
Facsimile No.: | (416) 365-7886 |
(b) | to the Underwriters at: |
Beacon Securities Limited |
66 Wellington Street West, Suite 4050 |
Toronto, Ontario M5K 1H1 |
Attention: | Stephen Delaney, Managing Director | |
Facsimile No.: | (416) 359-4459 |
and |
- 47 -
Canaccord Genuity Corp. | |
161 Bay Street, Suite 3000 | |
P.O. Box 516 | |
Toronto, Ontario M5J 2S1 | |
Attention: | Steve Winokur |
Facsimile No.: | (416) 869-7223 |
with a copy to (for informational purposes only and not constituting notice) to: | |
Bennett Jones LLP | |
3400 One First Canadian Place | |
100 King Street West | |
P.O. Box 130 | |
Toronto, Ontario M5X 1A4 | |
Attention: | Sander Grieve and Linda Misetich Dann |
Facsimile No.: | (416) 863-1716 |
or at such other address or facsimile number as may be given by either of them to the other in writing from time to time in accordance with this Section 22 and such notices or other communications shall be deemed to have been received when delivered or, if facsimile, on the next business day after such notice or other communication has been facsimiled (with receipt confirmed).
23. | Counterpart Signature |
This Underwriting Agreement may be executed in one or more counterparts (including counterparts by facsimile or other means of electronic transmission), which together shall constitute an original copy hereof as of the date first noted above.
24. | Time of the Essence |
Time shall be of the essence in this Underwriting Agreement.
25. | Severability |
If any provision of this Underwriting Agreement is determined to be void or unenforceable, in whole or in part, such void or unenforceable provision shall not affect or impair the validity of any other provision of this Underwriting Agreement and shall be severable from this Underwriting Agreement.
26. | Entire Agreement |
This Underwriting Agreement constitutes the entire agreement among the Underwriters and Protech relating to the subject matter hereof and supersedes the Bid Letter.
27. | Advertisements |
The Company acknowledges that the Underwriters shall have the right following the Closing Date, at their own expense, to place such advertisement or advertisements relating to the sale of the Offered Units contemplated herein as the Underwriters may consider desirable or appropriate and as may be permitted by Applicable Securities Law.
- 48 -
28. | Further Assurances |
Each of the parties hereto shall cause to be done all such acts and things or execute or cause to be executed all such documents, agreements and other instruments as may reasonably be necessary or desirable for the purposes of carrying out the provisions and intent of this Underwriting Agreement.
29. | Language |
The parties have expressly required this Underwriting Agreement and all other documents required or permitted to be given or entered into pursuant hereto to be drawn up in the English language only. Les parties ont expressément demandé que la présente convention de prise ferme ainsi que tout autre document à être ou pouvant être donné ou conclu en vertu des dispositions des présentes, soient rédigés en langue anglaise seulement.
30. | Acceptance |
If this Underwriting Agreement accurately reflects the terms of the transaction which we are to enter into and if such terms are agreed to by Protech, please communicate your acceptance by executing where indicated below and returning by facsimile one copy and returning by mail an originally executed copy to the Co-Lead Underwriters.
[Remainder of page intentionally left blank. Signature pages follow.]
Yours very truly,
BEACON SECURITIES LIMITED | ||
Per: | ||
|
|
Name: Stephen Delaney
|
Title: Managing Director |
CANACCORD GENUITY CORP. | ||
Per: | ||
Name: | ||
|
|
Title: |
ECHELON WEALTH PARTNERS INC. | ||
Per: | ||
|
|
Name:
|
Title: | ||
STIFEL NICOLAUS CANADA INC. | ||
Per: | ||
|
|
Name:
|
Title: |
INDUSTRIAL ALLIANCE SECURITIES INC. | ||
Per: | ||
|
|
Name:
|
Title: |
M PARTNERS INC. | ||
Per: | ||
Name: | ||
Title: |
The foregoing accurately reflects the terms of the transaction that we are to enter into and such terms are agreed to. | ||
ACCEPTED at Toronto as of this 8th day of June, 2020. | ||
PROTECH HOME MEDICAL CORP. | ||
Per: | ||
Name: Gregory Crawford | ||
Title: Chairman and Chief Executive Officer |
Schedule "A"
UNITED STATES OFFERS AND SALES
As used in this Schedule "A", capitalized terms used herein and not defined herein shall have the meanings ascribed thereto in the underwriting agreement to which this Schedule "A" is annexed and to which it forms a part, and the following terms shall have the meanings indicated:
(a) | "Affiliate" means "affiliate" as that term is defined in Rule 405 under the U.S. Securities Act; |
(b) | "Directed Selling Efforts" means "directed selling efforts" as that term is defined in Rule 902(c) of Regulation S. Without limiting the foregoing, but for greater clarity in this Schedule "A", it means, subject to the exclusions from the definition of directed selling efforts contained in Regulation S, any activity undertaken for the purpose of, or that could reasonably be expected to have the effect of, conditioning the market in the United States for any of the Offered Securities and includes the placement of any advertisement in a publication with a general circulation in the United States that refers to the offering of the Offered Securities; |
(c) | "Disqualification Event" means any of the "Bad Actor" disqualifications described in Rule 506(d)(1)(i) to (viii) of Regulation D; |
(d) | "Foreign Issuer" shall have the meaning ascribed thereto in Rule 902(e) of Regulation S. Without limiting the foregoing, but for greater clarity in this Schedule "A", it means any issuer which is (a) the government of any country other than the United States, or any political subdivision thereof or a national of any country other than the United States; or (b) a corporation or other organization incorporated under the laws of any country other than the United States, except an issuer meeting the following conditions as of the last business day of its second fiscal quarter: (1) more than 50 percent of the outstanding voting securities of such issuer are either directly or indirectly owned of record by residents of the United States; and (2) any of the following: (i) the majority of the executive officers or directors are United States citizens or residents, (ii) more than 50 percent of the assets of the issuer are located in the United States, or (iii) the business of the issuer is administered principally in the United States; |
(e) | "General Solicitation" or "General Advertising" means "general solicitation" and "general advertising", as used in Rule 502(c) of Regulation D. Without limiting the foregoing, but for greater clarity, General Solicitation or General Advertising includes, but is not limited to, any advertisements, articles, notices or other communications published in any newspaper, magazine or similar media or on the internet or broadcast over radio, internet or television, or any seminar or meeting whose attendees had been invited by General Solicitation or General Advertising; |
(f) | "Offshore Transaction" means an "offshore transaction" as defined in Rule 902(h) of Regulation S; |
(g) | "Regulation D" means Regulation D under the U.S. Securities Act; |
(h) | "Regulation S" means Regulation S under the U.S. Securities Act; |
A-1
(i) | "SEC" means the United States Securities and Exchange Commission; |
(j) | "Securities" means the Offered Securities, the Common Shares and Warrants comprising the Offered Units and Over-Allotment Securities, and the Warrant Shares issuable upon exercise of the Warrants; and |
(k) | "Substantial U.S. Market Interest" means "substantial U.S. market interest" as that term is defined in Regulation S. |
1. | Representations, Warranties and Covenants of the Company. Protech hereby represents, warrants, covenants and agrees to and with the Underwriters, as at the date hereof and as at the Closing Date and any Over-Allotment Closing Date, that: |
(a) | The Company is, and at the Time of Closing will be, a Foreign Issuer with no Substantial U.S. Market Interest with respect to its Common Shares or any other class of its equity securities, as such term is defined in Regulation S. |
(b) | The Company is not, and as a result of the sale of the Offered Securities contemplated hereby and the application of the proceeds of the Offering as set forth under the caption "Use of Proceeds" in the Final Prospectus, will not be an "investment company" (as such term is defined in the United States Investment Company Act of 1940, as amended) registered, or required to register, under such Act. |
(c) | Except with respect to offers and sales in accordance with this Underwriting Agreement (including this Schedule “A”) to, or for the account or benefit of, Persons in the United States or U.S. Persons to Institutional Accredited Investors in reliance upon the exemption from registration available under Rule 506(b) of Regulation D and Qualified Institutional Buyers in reliance upon the exemption from registration available under Rule 144A, none of the Company, its affiliates or any Persons acting on any of their behalf (other than the Underwriters, their affiliates and any Person acting on any of their behalf, as to which no representation, warranty, covenant or agreement is made) has offered or sold, or will offer or sell, any of the Offered Securities to, or for the account or benefit of, Persons in the United States or U.S. Persons. |
(d) | None of the Company or its Affiliates or any Person acting on any of their behalf (other than the Underwriters, their respective Affiliates or any Person acting on any of their behalf, in respect of which no representation is made) has engaged or will engage in any Directed Selling Efforts in the United States with respect to the Offered Securities, or has taken or will take any action that would cause the exemptions afforded by Rule 144A, Rule 506(b) of Regulation D or Rule 903 of Regulation S to be unavailable for offers and sales of the Offered Securities pursuant to this Underwriting Agreement, and none of the Company, any of its Affiliates, or any Person acting on any of their behalf (other than the Underwriters, their Affiliates or any Person acting on any of their behalf, as to which no representation, warranty, covenant or agreement is made) has engaged or will engage in any form of General Solicitation or General Advertising in connection with the offer or sale of the Offered Securities to, or for the account or benefit of, Persons in the United States or U.S. Persons, or has otherwise acted in a manner involving a public offering within the meaning of Section 4(a)(2) of the U.S. Securities Act in connection with the offer or sale of the Offered Securities to, or for the account or benefit of, Persons in the United States or U.S. Persons. |
A-2
(e) | The Offered Securities offered and sold pursuant to Rule 144A satisfy the requirements set forth in Rule 144A(d)(3) under the U.S. Securities Act. |
(f) | So long as any of the Offered Securities which have been sold in the United States in reliance on Rule 144A are outstanding and are "restricted securities" within the meaning of Rule 144(a)(3) under the U.S. Securities Act, if the Company is not, or ceases to be exempt, pursuant to Rule 12g3-2(b) under the U.S. Exchange Act, from the reporting requirements of the U.S. Exchange Act, and is not otherwise subject to the reporting requirements of Section 13 or 15(d) of the U.S. Exchange Act, the Company will furnish to any holder of the Offered Securities and any prospective purchaser of the Offered Securities designated by such holder, upon request of such holder, the information required to be delivered pursuant to Rule 144A(d)(4) under the U.S. Securities Act (so long as such requirement is necessary in order to permit holders of the Offered Securities to effect resales under Rule 144A). |
(g) | The Company has not, for a period of six months prior to the date hereof, sold, offered for sale or solicited any offer to buy any of its securities in the United States in a manner that would be integrated with, and would cause the exemption provided by Rule 506(b) of Regulation D to become unavailable with respect to, the offer and sale of the Offered Securities to, or for the account or benefit of, Persons in the United States or U.S. Persons as contemplated by this Underwriting Agreement. |
(h) | The Company will file within the prescribed time period(s) a Notice of Sales on Form D as required by Rule 503 of Regulation D with the United States Securities and Exchange Commission and any required filings with any applicable state securities commissions in connection with any sales of Offered Securities to Accredited Investors pursuant to Rule 506(b) of Regulation D. |
(i) | For each taxable year in which the Company is a "passive foreign investment company" as defined in Section 1297 of the United States Internal Revenue Code of 1986, as amended (the "Internal Revenue Code"), if requested in writing by a U.S. Purchaser, the Company will provide such U.S. Purchaser with the required information to enable it to make a qualified electing fund election under Section 1295 of the Internal Revenue Code and the applicable treasury regulations promulgated thereunder, and will satisfy all requirements described therein (which, for the avoidance of doubt, shall include providing a PFIC Annual Information Statement). |
(j) | Neither the Company nor any of its predecessors or affiliates has been subject to any order, judgment or decree of any court of competent jurisdiction temporarily, preliminary or permanently enjoining such person for failure to comply with Rule 503 of Regulation D. |
(k) | Neither the Company nor any of its affiliates has taken or will take, directly or indirectly, any action in violation of Regulation M under the U.S. Exchange Act with respect to the offer or sale of the Offered Securities. |
(l) | None of the Company or any of its predecessors or subsidiaries has had the registration of a class of securities under the U.S. Exchange Act revoked by the SEC pursuant to Section 12(j) of the U.S. Exchange Act and any rules or regulations promulgated under the U.S. Exchange Act. |
A-3
(m) | As of the Closing Date and any Over-Allotment Closing Date with respect to offers and sales of Offered Securities to Institutional Accredited Investors pursuant to Rule 506(b) of Regulation D (the "Regulation D Securities"), none of the Company, any of its predecessors, any affiliated issuer, any director, executive officer, other officer of the Company participating in the offering, any beneficial owner of 20% or more of the Company's outstanding voting equity securities, calculated on the basis of voting power, nor any promoter (as that term is defined in Rule 405 under the U.S. Securities Act) connected with the Company in any capacity at the time of sale (other than any Underwriter Covered Person, as to whom no representation or warranty is made) (each, an "Company Covered Person" and, together, "Company Covered Persons") is subject to a Disqualification Event, except for a Disqualification Event covered by Rule 506(d)(2) or (d)(3) of Regulation D. The Company has exercised reasonable care to determine whether any Company Covered Person is subject to a Disqualification Event. The Company has complied, to the extent applicable, with its disclosure obligations under Rule 506(e), and has furnished to the Underwriters a copy of any disclosures provided thereunder. |
(n) | As of the Closing Date and any Over-Allotment Closing Date, the Company is not aware of any person (other than any Underwriter Covered Person) that has been or will be paid (directly or indirectly) remuneration for solicitation of U.S. Purchasers. |
(o) | The Company will notify the Underwriters in writing, prior to the Closing Date or any Over-Allotment Closing Date, of (i) any Disqualification Event relating to any Company Covered Person and (ii) any event that would, with the passage of time, become a Disqualification Event relating to any Company Covered Person. |
(p) | All sales of Offered Units to purchasers identified by the Underwriters in the Concurrent Private Placement have been or will be made by the Company in Offshore Transactions in compliance with Rule 903 of Regulation S. All offers and sales of Offered Units in the Concurrent Non-Brokered Private Placement have been or will be made only by the Company to, or for the account or benefit of, Persons in the United States and U.S. Persons that are "accredited investors" (as defined in Rule 501(a) of Regulation D) in compliance with Rule 506(b) of Regulation D. |
2. | Each Underwriter, severally and not jointly, nor jointly or severally, represents, warrants and covenants to the Company, on its own behalf and on behalf of each of its Affiliates, that, in connection with all sales of the Offered Securities in the United States or to, or for the account or benefit of, U.S. Persons as at the date hereof and as at the Closing Date and any Over-Allotment Closing Date: |
(a) | It acknowledges that the Offered Securities have not been and will not be registered under the U.S. Securities Act or any state securities laws, and that the Offered Securities may not be offered or sold except in Offshore Transactions in accordance with Rule 903 of Regulation S or to, or for the account or benefit of, Persons in the United States or U.S. Persons pursuant to an exemption from the registration requirements of the U.S. Securities Act available under Section 4(a)(2), Rule 144A or Rule 506(b) of Regulation D and in reliance upon exemptions under applicable state securities laws. |
(b) | In accordance this Schedule "A", it has only offered and sold and will only offer and sell the Offered Securities to, or for the account or benefit of, Persons in the United States or U.S. Persons with whom it has a pre-existing substantive or business relationship and whom it reasonably believes are either Qualified Institutional Buyers pursuant to Rule 144A or Institutional Accredited Investors pursuant to Rule 506(b) of Regulation D, and in compliance with applicable state securities law. Except as set forth in the preceding sentence, the Underwriter has not made and will not make any offer to sell, solicitation of an offer to buy or sale of any of the Offered Securities unless such offer, solicitation of an offer or sale of the Offered Securities was made in an Offshore Transaction in compliance with Rule 903 of Regulation S. The Underwriter has not made and will not make any offers or sales of Offered Units in the Concurrent Non-Brokered Private Placement. Any offers of Offered Units by the Underwriter for sale by the Company in the Concurrent Private Placement have been or will be made in Offshore Transactions in compliance with Rule 903 of Regulation S. |
A-4
(c) | It has not entered and will not enter into any contractual arrangement with respect to the offer and sale of the Offered Securities to, or for the account or benefit of, Persons in the United States or U.S. Persons, except with its U.S. Affiliate, any Selling Firm, or with the prior written consent of the Company. It shall require its U.S. Affiliate and any Selling Firm to agree, for the benefit of the Company, to comply with the same provisions of this Schedule as apply to such Underwriter as if such U.S. Affiliate or Selling Firm was a party to this Underwriting Agreement. |
(d) | Neither such Underwriter nor its U.S. Affiliate, nor any persons acting on any of their behalf, has engaged or will engage in any Directed Selling Efforts. |
(e) | All offers and sales of Offered Securities by it to, or for the account or benefit of, Persons in the United States or U.S. Persons have been and shall be made through the Underwriter's U.S. Affiliate in compliance with all applicable U.S. federal and state broker-dealer requirements. Such U.S. Affiliate is and will be, on the date of each offer or sale of Offered Securities in the United States, duly registered as a broker-dealer pursuant to Section 15(b) of the U.S. Exchange Act and under the laws of each state where such offers and sales are made (unless exempted from such state's registration requirements) and a member in good standing with the Financial Industry Regulatory Authority, Inc. |
(f) | Offers and sales of Offered Securities to, or for the account or benefit of, Persons in the United States or U.S. Persons by the Underwriter or its U.S. Affiliate have not been and shall not be made by any form of General Solicitation or General Advertising or in any manner involving a public offering within the meaning of Section 4(a)(2) of the U.S. Securities Act. |
(g) | All purchasers of the Offered Securities who are, or are acting for the account or benefit of, Persons in the United States or U.S. Persons or who were offered Offered Securities in the United States ("U.S. Purchasers") shall be informed that the Offered Securities have not been and will not be registered under the U.S. Securities Act and are being sold to them in reliance on Rule 144A or Rule 506(b) of Regulation D and in reliance upon similar exemptions from registration under applicable state securities laws. |
(h) | It will ensure that each Person that is, or is acting for the account or benefit of, a Person in the United States or a U.S. Person that was offered Offered Securities by it or its U.S. Affiliate has been or shall be provided with the U.S. Offering Memorandum including the Preliminary Prospectus and/or the Final Prospectus, as applicable. It will ensure that each U.S. Purchaser purchasing Offered Securities from it or from the Company, through or arranged by its U.S. Affiliate, shall (i) be provided, prior to the Time of Closing, with the U.S. Offering Memorandum including the Final Prospectus; and (ii) execute and deliver to the Underwriters, the U.S. Affiliates and the Company either: (a) a U.S. QIB Letter substantially in the form attached as Exhibit I to the U.S. Offering Memorandum or (b) a U.S. Subscription Agreement substantially in the form attached as Exhibit II to the U.S. Offering Memorandum. |
A-5
(i) | None of the Underwriter, its affiliates or any person acting on any of any of their behalf has taken or will take, directly or indirectly, any action in violation of Regulation M under the U.S. Exchange Act with respect to the offer and sale of the Offered Securities. |
(j) | Its U.S. Affiliate selling the Offered Securities to, or for the account or benefit of, Persons in the United States or U.S. Persons is a Qualified Institutional Buyer. |
(k) | Prior to the Time of Closing, it will provide the Company and its transfer agent with a list of all U.S. Purchasers purchasing the Offered Securities from its U.S. Affiliate, or from the Company as arranged by its U.S. Affiliate. |
(l) | At the Time of Closing, the Underwriter, together with its U.S. Affiliate selling (or arranging for the Company to sell) Offered Securities to, or for the account or benefit of, Persons in the United States or U.S. Persons, will provide a certificate, substantially in the form of Exhibit "I" to this Schedule "A" relating to the manner of the offer and sale of the Offered Securities in the United States and to U.S. Persons or will be deemed to have represented and warranted that none of it, its affiliates or any person acting on any of their behalf has offered or sold Offered Securities to, or for the account or benefit of, Persons in the United States or U.S. Persons. |
(m) | As of the Closing Date and any Over-Allotment Closing Date with respect to offers and sales of Regulation D Securities, each Underwriter represents that neither it, nor any of its directors, executive officers, general partners, managing members, other officers participating in offers and sales to Institutional Accredited Investors pursuant to Rule 506(b) of Regulation D or any other person associated with or acting on behalf of the above persons (including, but not limited to, the Underwriter's U.S. Affiliate) that has been or will be paid (directly or indirectly) remuneration for solicitation of purchasers in connection with the sale of the Regulation D Securities (each, an "Underwriter Covered Person" and, together, "Underwriter Covered Persons"), is subject to any Disqualification Event except for a Disqualification Event (i) contemplated by Rule 506(d)(2) of Regulation D and (ii) a description of which has been furnished in writing to the Company prior to the date thereof. |
(n) | As of the Closing Date and any Over-Allotment Closing Date, the Underwriter represents that it is not aware of any person (other than any Underwriter Covered Person) that has been or will be paid (directly or indirectly) remuneration for solicitation of U.S. Purchasers. |
(o) | The Underwriter will notify the Company in writing, prior to the Closing Date and any Over-Allotment Closing Date (i) any Disqualification Event relating to any Underwriter Covered Person not previously disclosed to the Company and (ii) any event that would, with the passage of time, become a Disqualification Event relating to any Underwriter Covered Person. |
A-6
Exhibit "I" to Schedule "A"
UNDERWRITERS' CERTIFICATE
TO: PROTECH HOME MEDICAL CORP.
CERTIFICATE
In connection with the private placement in the United States of the units (the "Offered Securities") of Protech Home Medical Corp. (the "Company") pursuant to the underwriting agreement dated as of June 8, 2020 among the Company and the Underwriters named therein (the "Underwriting Agreement"), each of the undersigned does hereby certify as follows:
1. | the undersigned U.S. Affiliate of the undersigned Underwriter is on the date hereof, and was on the date of each offer and sale of the Offered Securities made by it to, or for the account or benefit of, Persons in the United States or U.S. Persons, a duly registered broker or dealer under the United States Securities and Exchange Act of 1934, as amended, and the securities laws of each state in which an offer or sale of Offered Securities was made (unless exempted from the respective state’s broker-dealer registration requirements) and a member of and in good standing with the Financial Industry Regulatory Authority, Inc., and all offers and sales of Offered Securities to, or for the account or benefit of, Persons in the United States or U.S. Persons by or through the undersigned U.S. Affiliate have been and will be effected in accordance with all U.S. federal and state broker-dealer requirements; |
2. | each offeree of Offered Securities to, or for the account or benefit of, Persons in the United States or U.S. Persons was provided with a copy of one or both of the U.S. Offering Memorandum, including the Preliminary Prospectus, and/or the U.S. Offering Memorandum, including the Final Prospectus, and each U.S. Purchaser: (a) was provided, prior to the Time of Closing, with a copy of the U.S. Offering Memorandum, including the Final Prospectus, and no other written material was used in connection with the offer and sale of the Offered Securities to, or for the account or benefit of, Persons in the United States or U.S. Persons; and (b) executed and delivered to the Underwriters and the Company either (x) a U.S. QIB Letter substantially in the form attached as Exhibit I to the U.S. Offering Memorandum or (y) a U.S. Subscription Agreement substantially in the form attached as Exhibit II to the U.S. Offering Memorandum; |
3. | immediately prior to our soliciting such offerees, we had reasonable grounds to believe and did believe that each offeree was, and continue to believe that each U.S. Purchaser purchasing Offered Securities from or through us is, either a Qualified Institutional Buyer or an Institutional Accredited Investor, as applicable; |
4. | no form of General Solicitation or General Advertising was used by us in connection with the offer or sale of the Offered Securities to, or for the account or benefit of, Persons in the United States or U.S. Persons; |
5. | none of (i) the undersigned, (ii) the undersigned’s general partners or managing members, (iii) any of the undersigned's directors, executive officers or other officers participating in the offering of the Regulation D Securities, (iv) any of the undersigned’s general partners' or managing members' directors, executive officers or other officers participating in the offering of the Regulation D Securities or (v) any other Person associated with any of the above Persons that has been or will be paid (directly or indirectly) remuneration for solicitation of purchasers in connection with sale of Regulation D Securities (each, a "Underwriter Covered Person" and, collectively, the "Underwriter Covered Persons"), is subject to any of the “Bad Actor” disqualifications described in Rule 506(d)(1)(i) to (viii) of Regulation D (a "Disqualification Event"), except for a Disqualification Event (i) contemplated by Rule 506(d)(2) of Regulation D and (ii) a description of which has been furnished in writing to the Company prior to the date hereof; |
A-7
6. | we are not aware of any Person (other than any Underwriter Covered Person) that has been or will be paid (directly or indirectly) remuneration for solicitation of U.S. Purchasers; |
7. | neither we nor any of our affiliates have taken or will take, directly or indirectly, any action in violation of Regulation M under the U.S. Exchange Act with respect to the offer or sale of the Offered Securities; and |
8. | the offering of the Offered Securities to, or for the account or benefit of, Persons in the United States or U.S. Persons has been conducted by us in accordance with the terms of the Underwriting Agreement, including Schedule "A" attached thereto. |
Words and terms with the initial letter or letters thereof capitalized in this certificate and not defined herein but defined in the Underwriting Agreement (including Schedule “A” attached thereto) shall have the meanings given to such capitalized words and terms in the Underwriting Agreement (including Schedule “A” attached thereto) unless otherwise defined herein.
Dated this day of , 2020.
[UNDERWRITER] | [U.S. AFFILIATE] | |||
Per: | Per: | |||
A-8
Schedule "B"
FORM OF LOCK-UP AGREEMENT
________________________, 2020
To: |
Beacon Securities Limited
Canaccord Genuity Corp. Echelon Wealth Partners Inc. Stifel GMP Industrial Alliance Securities Inc. M Partners Inc. |
(collectively, the "Underwriters")
Re: | Protech Home Medical Corp. – Lock-up Agreement |
Dear Sirs:
The undersigned understands that the Underwriters have entered into an underwriting agreement dated June 8, 2020, (the "Underwriting Agreement") with Protech Home Medical Corp. (the "Company") providing for a public offering (the "Offering") of units, consisting of common shares and common share purchase warrants of the Company. Initially capitalized terms not otherwise defined herein shall have the meaning given to them, respectively, in the Underwriting Agreement.
In consideration of the benefit that the Offering will confer upon the undersigned, and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the undersigned agrees that, during the period beginning from the date hereof and ending on the day that is 90 days following the Closing Date (the "Lock-Up Period"), the undersigned will not directly or indirectly, offer, sell, contract to sell, grant any option to purchase, make any short sale, lend, swap, or otherwise dispose of, or transfer, assign, or announce any intention to do so, any Common Shares or any securities of the Company convertible into or exchangeable for Common Shares, whether now owned directly or indirectly, or under such person's control or direction, or with respect to which such person has beneficial ownership, or enter into any transaction or arrangement that has the effect of transferring, in whole or in part, any of the economic consequences of ownership of Common Shares, whether such transaction is settled by the delivery of Common Shares, other securities, cash or otherwise, other than pursuant to a bona fide take-over bid or any other similar transaction made generally to all of the shareholders of the Company, provided that, in the event the change of control or other similar transaction is not completed, such securities shall remain subject to the lock-up agreement
The undersigned understands that the Company and the Underwriters are relying upon this lock-up agreement in proceeding toward consummation of the Offering. The undersigned further understands that this lock-up agreement is irrevocable and shall be binding upon the undersigned's legal representatives, successors and assigns, and shall enure to the benefit of the Company, the Underwriters and their legal representatives, successors and assigns.
The undersigned hereby represents and warrants that he or she has full power and authority to enter into this agreement, and that he or she will do all such acts and take all such steps as reasonably required in order to fully perform and carry out the provisions of this agreement. All authority herein conferred or agreed to be conferred shall survive the death or incapacity of the undersigned.
B-1
This lock-up agreement will be governed by the laws of the province of Ontario and the laws of Canada applicable therein.
This lock-up agreement may be executed by counterpart signatures (including counterparts by facsimile or other means of each electronic transmission) each of which shall be effective as original signatures.
Yours truly,
NAME OF SECURITYHOLDER: | |
(Name) |
(Signature) | (Signature of Witness) |
Number and type of securities of the Company subject to this lock-up agreement: | |
B-2
Exhibit 99.39
PROTECH HOME MEDICAL ANNOUNCES FILING OF PRELIMINARY PROSPECTUS AND CONCURRENT PRIVATE PLACEMENTS
NOT FOR DISTRIBUTION TO UNITED STATES NEWS WIRE SERVICES OR FOR DISSEMINATION IN THE UNITED STATES
Cincinnati, Ohio – June 8, 2020 – Protech Home Medical Corp. (the “Company”) (TSXV: PTQ) (OTCQX: PTQQF) is pleased to announce that is has filed the preliminary prospectus in connection with its previously announced bought deal public offering (the “Public Offering”) of units (“Units”) of the Company. In addition, the Company announces that it anticipates completing, concurrent with the Public Offering: (i) a brokered private placement of 1,750,000 Units (the “Brokered Private Placement”) conducted by a syndicate of agents (the “Agents”) led by Beacon Securities Limited (“Beacon”), as sole bookrunner, and Canaccord Genuity Corp., and (ii) a non-brokered private placement of 927,826 Units (the “Non-Brokered Private Placement”, and together with the Brokered Private Placement, the “Concurrent Private Placements”), with Gregory Crawford, Chairman and CEO of the Company, and Mark Greenberg, a director of the Company.
Each Unit issued in connection with the Concurrent Private Placements will be sold at a price of $1.15 (the “Issue Price”) and will consist of one common share of the Company (a “Common Share”) and one-half of one common share purchase warrant of the Company (each whole warrant, a “Warrant”). Each Warrant will be exercisable to acquire one Common Share for a period of 12 months following the closing of the Concurrent Private Placements at an exercise price of $1.60 per share. While closing of the Concurrent Private Placements is conditional upon the closing of the Public Offering, the closing of the Public Offering is not conditional upon the closing of the Concurrent Private Placements.
The Company intends to use the proceeds of the Offering and the Concurrent Private Placements for working capital and general corporate purposes. The Offering and Concurrent Private Placements are expected to close on or about June 23, 2020 and are subject to certain closing conditions including, but not limited to, the receipt of all necessary regulatory and stock exchange approvals, including the approval of the TSX Venture Exchange (the “Exchange”) and the applicable securities regulatory authorities.
The securities issuable under the Concurrent Private Placements will be subject to resale restrictions, including, a Canadian and, in the case of the Non-Brokered Private Placement, an Exchange four-month hold period.
By virtue of the anticipated participation of Gregory Crawford and Mark Greenberg, each an insider of the Company, the Non-Brokered Private Placement constitutes a "related party transaction", as defined under Multilateral Instrument 61-101 (“MI 61-101”). The Non-Brokered Private Placement will be exempt from the formal valuation and minority shareholder approval requirements of MI 61-101 as neither the fair market value of any securities issued to nor the consideration paid by such insiders would exceed 25% of the Company’s market capitalization.
In connection with the issue and sale of the Units pursuant to the Brokered Private Placement, the Agents will receive from the Company (i) a cash commission equal to 5.5% of the aggregate gross proceeds from the sale of the Units under the Brokered Private Placement, and (ii) non-transferable compensation options entitling the Agents to purchase that number of Common Shares as is equal to 5.5% of the number of Units sold under the Brokered Private Placement, at an exercise price of $1.15 per Common Share exercisable for a period of twenty-four (24) months from the closing. The compensation options and underlying Common Shares will be subject to a Canadian four-month hold period.
The securities referred to in this news release have not been, nor will they be, registered under the United States Securities Act of 1933, as amended, and may not be offered or sold within the United States or to, or for the account or benefit of, U.S. persons absent U.S. registration or an applicable exemption from the U.S. registration requirements. This press release does not constitute an offer for sale of securities, nor a solicitation for offers to buy any securities in the United States, nor in any other jurisdiction in which such offer, solicitation or sale would be unlawful. Any public offering of securities in the United States must be made by means of a prospectus containing detailed information about the company and management, as well as financial statements.
ABOUT PROTECH HOME MEDICAL CORP.
The Company provides in-home monitoring and disease management services including end-to-end respiratory solutions for patients in the United States healthcare market. It seeks to continue to expand its offerings to include the management of several chronic disease states focusing on patients with heart or pulmonary disease, sleep disorders, reduced mobility and other chronic health conditions. The primary business objective of the Company is to create shareholder value by offering a broader range of services to patients in need of in-home monitoring and chronic disease management. The Company’s organic growth strategy is to increase annual revenue per patient by offering multiple services to the same patient, consolidating the patient’s services and making life easier for the patient.
Forward-Looking Statements
Certain statements contained in this press release constitute "forward-looking information" as such term is defined in applicable Canadian securities legislation. The words "may", "would", "could", "should", "potential", "will", "seek", "intend", "plan", "anticipate", "believe", "estimate", "expect" and similar expressions as they relate to the Company, including: the Offering and Concurrent Private Placements, the use of the net proceeds from the Offering and Concurrent Private Placements, the timing and ability of the Company to close the Offering and Concurrent Private Placements, if at all, the number of Units offered or sold, the gross proceeds of the Offering and Concurrent Private Placements, the timing and ability of the Company to obtain all necessary approvals, if at all, and the terms and jurisdictions of the Offering and Concurrent Private Placements; are intended to identify forward-looking information. All statements other than statements of historical fact may be forward-looking information. Such statements reflect the Company's current views and intentions with respect to future events, and current information available to the Company, and are subject to certain risks, uncertainties and assumptions, including, without limitation: receipt of subscription agreements and subscription funds for the Concurrent Private Placements; and the timing and ability of the Company to close the Offering and Concurrent Private Placements and to obtain all necessary approvals, if at all. Many factors could cause the actual results, performance or achievements that may be expressed or implied by such forward-looking information to vary from those described herein should one or more of these risks or uncertainties materialize. Examples of such risk factors include, without limitation: credit; market (including equity, commodity, foreign exchange and interest rate); liquidity; operational (including technology and infrastructure); reputational; insurance; strategic; regulatory; legal; environmental; capital adequacy; the general business and economic conditions in the regions in which the Company operates; the ability of the Company to execute on key priorities, including the successful completion of acquisitions, business retention, and strategic plans and to attract, develop and retain key executives; difficulty integrating newly acquired businesses; the ability to implement business strategies and pursue business opportunities; low profit market segments; disruptions in or attacks (including cyber-attacks) on the Company's information technology, internet, network access or other voice or data communications systems or services; the evolution of various types of fraud or other criminal behavior to which the Company is exposed; the failure of third parties to comply with their obligations to the Company or its affiliates; the impact of new and changes to, or application of, current laws and regulations; decline of reimbursement rates; dependence on few payors; possible new drug discoveries; a novel business model; dependence on key suppliers; granting of permits and licenses in a highly regulated business; the overall difficult litigation environment, including in the U.S.; increased competition; changes in foreign currency rates; increased funding costs and market volatility due to market illiquidity and competition for funding; the availability of funds and resources to pursue operations; critical accounting estimates and changes to accounting standards, policies, and methods used by the Company; the occurrence of natural and unnatural catastrophic events and claims resulting from such events; and risks related to COVID-19 including various recommendations, orders and measures of governmental authorities to try to limit the pandemic, including travel restrictions, border closures, non-essential business closures, quarantines, self-isolations, shelters-in-place and social distancing, disruptions to markets, economic activity, financing, supply chains and sales channels, and a deterioration of general economic conditions including a possible national or global recession; as well as those risk factors discussed or referred to in the Company’s disclosure documents filed with the securities regulatory authorities in certain provinces of Canada and available at www.sedar.com. Should any factor affect the Company in an unexpected manner, or should assumptions underlying the forward-looking information prove incorrect, the actual results or events may differ materially from the results or events predicted. Any such forward-looking information is expressly qualified in its entirety by this cautionary statement. Moreover, the Company does not assume responsibility for the accuracy or completeness of such forward-looking information. The forward-looking information included in this press release is made as of the date of this press release and the Company undertakes no obligation to publicly update or revise any forward-looking information, other than as required by applicable law.
Neither the TSX Venture Exchange nor its Regulation Services Provider (as that term is defined in the policies of the TSX Venture Exchange) accepts responsibility for the adequacy or accuracy of this release.
For further information please contact:
Cole Stevens
VP of Investor Relations
Protech Home Medical Corp.
859-300-6455
cole.stevens@myphm.com
Gregory Crawford
Chief Executive Officer
Protech Home Medical Corp.
859-300-6455
investorinfo@myphm.com
Exhibit 99.40
2nd Quarter 2020 | |
Amended Management’s Discussion and Analysis For the Three and Six Months Ended March 31, 2020 |
Protech Home Medical Corp. |
Notice to Reader
This amended management’s discussion and analysis for the three and six months ended March 31, 2020 (the “Amended MD&A”) was filed to address the changes as a result of the amended and restated financial statements reviewed by the Auditors of the Company. In particular, the Company has made revisions in this Amended MD&A as follows.
As described in Note 15, the Company identified and corrected an error related to the current and long-term portions of its long-term lease liabilities as of March 31, 2020. The Company also corrected the acquisition consideration and purchase price allocation for its two acquisitions during the six months ended March 31, 2020 and various other changes to note disclosures.
|
AMENDED MANAGEMENT’S DISCUSSION AND ANALYSIS March 31, 2020 and 2019 (Dollar amounts expressed in thousands of Canadian Dollars) |
The following Management’s Discussion and Analysis (“MD&A”) of the financial condition and results of operations of Protech Home Medical Corp. (“Protech” or the “Company”), prepared as of June 24, 2020 and should be read in conjunction with the amended and restated consolidated financial statements for the quarter ended March 31, 2020, including the notes therein. The amended and restated consolidated financial statements have been prepared in accordance with International Financial Reporting Standards (“IFRS”). Unless otherwise specified, all financial data is presented in Canadian dollars. The words “we”, “our”, “us”, “Company”, and “Protech” refer to Protech Home Medical Corp and/or the management and employees of the Company.
Notice to Reader: As described in Note 15 of the amended and restated condensed consolidated interim financial statements, the Company identified and corrected an error related to the current and long-term portions of its long- term lease liabilities as of March 31, 2020. The Company also corrected the acquisition consideration and purchase price allocation for its two acquisitions during the six months ended March 31, 2020 and various other changes to note disclosures
Additional information relevant to the Company is available for review on SEDAR at www.sedar.com.
Table of Contents
Caution Regarding Forward-Looking Statements | Page 2 |
Selected Quarterly Information | Page 3 |
About Our Business and Operating Results | Pages 3 – 6 |
Financial Position | Pages 6 – 8 |
Accounting and Disclosure Matters | Pages 9 – 11 |
Financial Instruments and Risk Management | Pages 11 – 12 |
Risk Factors | Pages 12 – 17 |
CAUTION REGARDING FORWARD-LOOKING STATEMENTS
Information included or incorporated by reference in this report may contain forward-looking statements. This information may involve known and unknown risks, uncertainties, and other factors which may cause our actual results, performance, or achievements to be materially different from the future results, performance, or achievements expressed or implied by any forward-looking statements. Forward-looking statements, which involve assumptions and describe our future, strategies, and expectations, are generally identifiable by use of the words “may,” “will,” “should,” “expect,” “anticipate,” “estimate,” “believe,” “plan,” “intend” or “project” or the negative of these words or other variations on these words or comparable terminology. Readers are cautioned regarding statements discussing profitability; growth strategies; anticipated trends in our industry; our future financing plans; and our anticipated needs for working capital. Actual events or results may differ materially from those discussed in forward- looking statements. There can be no assurance that the forward-looking statements contained in this report will in fact occur. The Company bases its forward-looking statements on information currently available to it and assumes no obligation to update them.
THE FORWARD-LOOKING INFORMATION CONTAINED IN THIS MD&A PRESENTS THE EXPECTATIONS OF THE COMPANY AS OF THE DATE OF THIS MD&A AND, ACCORDINGLY, IS SUBJECT TO CHANGE AFTER SUCH DATE. READERS SHOULD NOT PLACE UNDUE IMPORTANCE ON FORWARD-LOOKING INFORMATION AND SHOULD NOT RELY UPON THIS INFORMATION AS OF ANY OTHER DATE. WHILE THE COMPANY MAY ELECT TO, THE COMPANY DOES NOT UNDERTAKE TO UPDATE THIS INFORMATION AT ANY PARTICULAR TIME EXCEPT AS REQUIRED BY APPLICABLE SECURITIES LEGISLATION.
Page | 2
|
AMENDED MANAGEMENT’S DISCUSSION AND ANALYSIS March 31, 2020 (Tabular dollar amounts expressed in thousands of Canadian Dollars) |
INTERIM MD&A - QUARTERLY HIGHLIGHTS
On July 29, 2019, the Company sold all the assets of one of its subsidiaries, Patient Home Monitoring, Inc. The amended and restated condensed consolidated financial statements and the notes reflect Patient Home Monitoring, Inc. as a discontinued operation. Prior year amounts have been reclassified in order to be comparable to the current year presentation.
- | Increased revenues by $3.3 million, or 16%, from the quarter ended March 31, 2019 |
- | Increased the number of equipment set-ups to 63,956 in the quarter ended March 31, 2020 from 51,676 in the quarter ended March 31, 2019, an increase of 24% |
- | Increased the number of respiratory resupply set-ups to 13,980 in the quarter ended March 31, 2020 from 11,641 in the quarter ended March 31, 2019, an increase of 20% |
- | Gross margin in the quarter ended March 31, 2020 was 73%, an increase from 71% in the prior year quarter |
- | Generated Adjusted EBITDA of $4,925,000, a 30% increase from the prior year quarter |
SELECTED INFORMATION
For the three months
ended March 31, 2020 |
For the three months
ended March 31, 2019 |
For the six months
ended March 31, 2020 |
For the six months
ended March 31, 2019 |
|||||||||||||
Number of patients serviced(1) | 40,372 | 31,464 | 63,891 | 52,858 | ||||||||||||
Number of equipment set-ups or deliveries | 63,956 | 51,676 | 126,955 | 102,619 | ||||||||||||
Respiratory resupply set-ups or deliveries | 13,980 | 11,641 | 27,419 | 22,920 | ||||||||||||
Adjusted EBITDA(2) | $ | 4,925 | $ | 3,791 | $ | 9,339 | $ | 7,523 |
(1) | The six-month periods do not equal the sum of the two respective three-month periods due to some patients being serviced in both three-month periods. |
(2) | Refer to page four for definition of Adjusted earnings before interest, taxes, depreciation, and amortization (“EBITDA”) |
The words “we”, “our”, “us”, “Company”, and “Protech” refer to Protech Home Medical Corp. and/or the management and employees of the Company.
ABOUT OUR BUSINESS
Protech business objective
The growth in the number of elderly patients in the US healthcare market is creating pressure to provide more efficient delivery systems. Healthcare providers, such as hospitals, physicians and pharmacies, are seeking partners that can offer a range of products and services that improve outcomes, reduce hospital readmissions and help control costs. Protech fills this need by delivering a growing number of specialized products and services to achieve these goals. Protech seeks to provide an ever- expanding line of products and services over larger geographic regions within the United States using several growth strategies.
Future Outlook
Protech expects to generate net profit and positive adjusted EBITDA, excluding IFRS treatment of non-cash items. Our top priority continues to be the generation of operational net profit, positive cash flow, and positive EBITDA in fiscal year 2020 and beyond. As we continue to expand in our existing markets, we plan to leverage our business platforms to enter new markets. As we continue to grow and achieve scale, the increasing cash generated from operations will be used to market our service and to gain market share. Our continued integration and rationalization, as well as our acquisitions, have given us a focus and path towards profitability at each business unit.
Going forward, we seek to find ways to continue to grow our customer base and penetrate these markets, while continuing to streamline our operational platform and generate positive cash flow and operational profits. We will continue to improve on operational efficiencies and call center management as they are key execution points in order to maintain our healthy gross margin while growing revenues via the cross selling of services to existing and acquired patients.
Page | 3
|
AMENDED MANAGEMENT’S DISCUSSION AND ANALYSIS March 31, 2020 (Tabular dollar amounts expressed in thousands of Canadian Dollars) |
OPERATING RESULTS
Accounting policies and estimates
The amended and restated consolidated financial statements for the quarter ended March 31, 2020 are prepared under International Financial Reporting Standards (“IFRS”) issued by the governing body of the International Accounting Standards Board (“IASB”). The preparation of financial statements in conformity with IFRS requires management to make estimates and assumptions. These estimates and assumptions affect the reported amounts of assets and liabilities, disclosures of contingent assets and liabilities, and the reported amounts of revenues and expenses for the period of consolidated financial statements.
IFRS accounting treatment
Management does not rely upon non-cash IFRS accounting treatment of certain items such as impairment of goodwill and intangible assets, changes in the fair value of financial derivatives, stock based compensation and amortization of intangible assets when planning, monitoring, and evaluating the Company’ s performance or in making financial decisions.
Non-IFRS measures
Throughout this MD&A, references are made to several measures which are believed to be meaningful in the assessment of the Company’s performance. These metrics are non-standard measures under IFRS and may not be identical to similar measures reported by other companies. Also, in the future, we may disclose different non- IFRS financial measures to help our investors more meaningfully evaluate and compare our future results of operations to our previously reported results of operations. Readers are cautioned that the disclosure of these items is meant to add to, and not replace, the discussion of financial results as determined in accordance with IFRS. The primary purpose of these non-IFRS measures is to provide supplemental information that may prove useful to investors who wish to consider the impact of certain non-cash or uncontrollable items on the Company’s operating performance.
EBITDA and Adjusted EBITDA
In calculating EBITDA and adjusted EBITDA certain items (mostly non-cash) are excluded from net income (loss) including interest, taxes, depreciation, amortization, change in fair value of debentures and derivative, stock-based compensation, and goodwill impairment charges. Set forth below are descriptions of the financial items that have been excluded from net income or loss to calculate EBITDA and Adjusted EBITDA and the material limitations associated with using these non-IFRS financial measures as compared to net income or loss.
- | Depreciation and amortization expense may be useful for investors to consider because they generally represent the wear and tear on our property and equipment used in our operations and amortization of intangibles valued in purchase accounting. However, we do not believe these charges necessarily reflect the current and ongoing cash charges related to our operating costs. |
- | The amount of interest expense we incur or interest income we generate may be useful for investors to consider and may result in current cash inflows or outflows. However, we do not consider the amount of interest expense or interest income to be a representative component of the day-to-day operating performance of our business. |
- | Change in fair value of debentures and derivative may be useful for investors to consider as it represents changes in the fair value of debentures, driven by changes in the trading price of the debentures. These changes are non- cash, as the settlement of the underlying debenture will be at the face value. |
- | Provision (benefit) for income taxes may be useful for investors to consider because it generally represents the taxes which may be payable for the period and the change in deferred income taxes and may reduce the amount of funds otherwise available for use. However, we do not consider the amount of income tax expense to be a representative component of the day-to-day operating performance of our business. |
- | Stock-based compensation may be useful for investors to consider because it is an estimate of the non-cash component of compensation received by the Company’s directors, officers, employees, and consultants. However, stock-based compensation is being excluded from the Company’ s operating expenses because the decisions which gave rise to these expenses were not made to increase revenue in a particular period but were made for the Company’ s long-term benefit over multiple periods. While strategic decisions, such as those to issue stock-based awards are made to further the Company’ s long-term strategic objectives and do impact the Company’s earnings under IFRS, these items affect multiple periods and management is not able to change or affect these items within any period. |
Management uses both IFRS and non-IFRS measures when planning, monitoring, and evaluating the Company’s performance.
The following table of adjusted EBITDA show our IFRS measures reconciled to EBITDA (non-IFRS measure) for the indicated periods. The table of net (loss) income is also measured based on IFRS. Both the tables are shown net of discontinued operations. Discontinued operations are comprised of the earnings after tax of discontinued operations until divestiture and the gain or loss after tax on sale, less costs to sell.
Page | 4
|
AMENDED MANAGEMENT’S DISCUSSION AND ANALYSIS March 31, 2020 (Tabular dollar amounts expressed in thousands of Canadian Dollars) |
Three
months ended March 31, 2020 |
Three
months ended March 31, 2019 |
Six months
ended March 31, 2020 |
Six months
ended March 31, 2019 |
|||||||||||||
Net income (loss) from continuing operations | $ | 2,056 | $ | (591 | ) | $ | 299 | $ | (978 | ) | ||||||
Add back: | ||||||||||||||||
Depreciation and amortization | 4,662 | 3,004 | 9,452 | 6,322 | ||||||||||||
Interest expense, net | 620 | 764 | 1,224 | 1,161 | ||||||||||||
Change in fair value of debentures and derivative | (2,549 | ) | 96 | (1,814 | ) | 28 | ||||||||||
Provision for income taxes | 44 | 163 | 44 | 105 | ||||||||||||
EBITDA | 4,833 | 3,436 | 9,205 | 6,638 | ||||||||||||
Stock-based compensation | 92 | 361 | 134 | 891 | ||||||||||||
Adjusted EBITDA | $ | 4,925 | $ | 3,797 | $ | 9,339 | $ | 7,529 |
Three
months ended March 31, 2020 |
Three
months ended March 31, 2019 |
Six months ended
March 31, 2020 |
Six months ended
March 31, 2019 |
|||||||||||||
Revenues | $ | 24,101 | $ | 20,824 | $ | 46,870 | $ | 41,333 | ||||||||
Cost of revenue | 6,502 | 6,082 | 12,531 | 12,312 | ||||||||||||
Gross profit | 17,599 | 14,742 | 34,339 | 29,021 | ||||||||||||
Gross margin % | 73 | % | 71 | % | 73 | % | 70 | % | ||||||||
Selling, general, and administrative | 12,740 | 10,780 | 25,292 | 21,323 | ||||||||||||
Depreciation | 4,495 | 2,853 | 9,046 | 6,020 | ||||||||||||
Amortization of intangible assets | 167 | 151 | 406 | 302 | ||||||||||||
Stock-based compensation | 92 | 361 | 134 | 891 | ||||||||||||
Gain on disposals of property and equipment | (11 | ) | - | (91 | ) | (2 | ) | |||||||||
Other expense (income) | (55 | ) | 165 | (201 | ) | 171 | ||||||||||
Interest expense, net | 620 | 764 | 1,224 | 1,161 | ||||||||||||
Change in fair value of debentures and derivative | (2,549 | ) | 96 | (1,814 | ) | 28 | ||||||||||
Provision for income taxes | 44 | 163 | 44 | 105 | ||||||||||||
Net income (loss) from continuing operations | 2,056 | (591 | ) | 299 | (978 | ) | ||||||||||
Income from discontinued operations | (416 | ) | 61 | (416 | ) | 582 | ||||||||||
Net income (loss) | $ | 1,640 | $ | (530 | ) | $ | (117 | ) | $ | (396 | ) | |||||
Income (loss) per share | ||||||||||||||||
Basic | $ | 0.02 | $ | (0.01 | ) | $ | (0.00 | ) | $ | (0.00 | ) | |||||
Diluted | $ | 0.02 | $ | (0.01 | ) | $ | (0.00 | ) | $ | (0.00 | ) |
Revenue
For the three months ended March 31, 2020, revenue totaled $24,101,000, an increase of $3,277,000, or 16%, from the same period in 2019. This increase is primarily due to the acquisitions of two businesses in the first quarter of fiscal year 2020. Organic growth and the higher Canadian dollar to US dollar exchange rate also contributed to the increase
For the six months ended March 31, 2020, revenue totaled $46,870,000, an increase of $5,537,000, or 13%, from the same period in 2019. This increase is primarily due to the acquisitions of two businesses in the first quarter of fiscal year 2020, with organic growth also contributing.
Gross profit
For the three months ended March 31, 2020 gross profit was $17,599,000, or 73% of revenues, as compared to $14,742,000, or 71% of revenues, during the same period in 2019. The gross margin % improvement during the period was primarily due to better inventory management to achieve better costs and a higher portion of rental revenues, which carry a higher gross margin percentage.
For the six months ended March 31, 2020 gross profit was $34,339,000, or 73% of revenues, as compared to $29,021,000, or 70% of revenues, during the same period in 2019. The gross margin % improvement during the period was primarily due to better inventory management to achieve better costs and a higher portion of rental revenues, which carry a higher gross margin percentage.
Page | 5
|
AMENDED MANAGEMENT’S DISCUSSION AND ANALYSIS March 31, 2020 (Tabular dollar amounts expressed in thousands of Canadian Dollars) |
Selling, general, and administrative expense
For the three months ended March 31, 2020, total selling, general and administrative expenses were $12,740,000, an increase of $1,960,000 from the same period in 2019. The increase was primarily due to approximately $1,800,000 from the acquisitions of two businesses in the first quarter of 2020. Small increases in bad debt expense and a higher Canadian dollar to US dollar exchange rate were partially offset by lower facility costs due to the adoption of IFRS 16, Leases (see Note 2 to the amended and restated condensed consolidated interim financial statements).
For the six months ended March 31, 2020, total selling, general and administrative expenses were $25,292,000, an increase of $3,969,000 from the same period in 2019. The increase was primarily due to approximately $3,500,000 from the acquisitions of two businesses in the first quarter of 2020. Increases in bad debt expense and payroll were partially offset by lower facility costs due to the adoption of IFRS 16, Leases (see Note 2 to the amended and restated condensed consolidated interim financial statements).
Depreciation expense
Depreciation expense increased by $1,642,000 to $4,495,000 for the three months ended March 31, 2020. Approximately $600,000 was due to the acquisitions of two businesses in the first quarter of 2020, and approximately $500,000 was due to the adoption of IFRS 16, Leases (see Note 2 to the amended and restated condensed consolidated interim financial statements). The remaining increase is primarily due to increased depreciation on monitoring equipment.
Depreciation expense increased by approximately $3,000,000 to $9,046,000 for the six months ended March 31, 2020. Approximately $1,000,000 was due to the two acquisitions of two businesses in the first quarter of 2020 and approximately $900,000 was due to the adoption of IFRS 16, Leases (see Note 2 to the amended and restated condensed consolidated interim financial statements). The remaining increase is due to increased depreciation on monitoring equipment.
Stock-based compensation
For the three and six months ended March 31, 2020, stock-based compensation was $92,000 and $134,000, respectively, compared to $361,000 and $891,000 in the respective periods of the prior year. The decline is due to options becoming fully vested during the year ended September 30, 2019.
Interest expense
Interest expense was $620,000 in the three months ended March 31, 2020, a $144,000 decrease from $764,000 for the three months ended March 31, 2019, as a result of no accretion expense in the three months ended March 31, 2020, partially offset by higher interest from the adoption of IFRS 16, Leases, and the higher principal amount and interest rate on the new debenture. The Company paid off the unsecured debentures of $8.625 million bearing an interest rate of 7.5% in early May 2019. The Company issued new debentures on March 7, 2019 for $15,000,000, bearing an interest rate of 8.0%.
Interest expense was $1,224,000 in the six months ended March 31, 2020, a $63,000 increase from $1,161,000 for the six months ended March 31, 2019, as a result of higher interest from the adoption of IFRS 16, Leases, and the higher principal amount and interest rate on the new debenture. The Company paid off the unsecured debentures of $8.625 million bearing an interest rate of 7.5% in early May 2019. The Company issued new debentures on March 7, 2019 for $15,000,000, bearing an interest rate of 8.0%. This was partially offset by having no accretion expense in the six months ended March 31, 2020.
Change in fair value of debentures and derivative
For the three and six months ended March 31, 2020, the change in fair value of debentures and derivative was a gain of $2,549,000 and $1,814,000, respectively, and was due to the decrease in the trading price of the debenture. For the three and six months ended March 31, 2019, the change in fair value of debentures and derivative was a small loss as the result of changes in the fair value of outstanding warrants.
FINANCIAL POSITION
As at | As at | |||||||
March 31, 2020 | September 30, 2019 | |||||||
(Restated) | ||||||||
Cash | $ | 6,210 | $ | 12,855 | ||||
Accounts receivable | 15,047 | 12,390 | ||||||
Inventory | 7,808 | 4,738 | ||||||
Other current assets | 1,089 | 800 | ||||||
Total current assets | 30,154 | 30,783 | ||||||
Property and equipment | 26,024 | 19,496 | ||||||
Intangible and other assets | 8,533 | 4,886 | ||||||
Total assets | $ | 64,711 | $ | 55,165 | ||||
Total current liabilities, including current portion of lease liabilities | $ | 25,004 | $ | 18,969 | ||||
Long-term debt and other long-term liabilities | 18,484 | 17,047 | ||||||
Total liabilities | 43,488 | 36,016 | ||||||
Total shareholders’ equity | 21,223 | 19,149 | ||||||
Total liabilities and shareholders’ equity | $ | 64,711 | $ | 55,165 |
Page | 6
|
AMENDED MANAGEMENT’S DISCUSSION AND ANALYSIS March 31, 2020 (Tabular dollar amounts expressed in thousands of Canadian Dollars) |
Liquidity
At March 31, 2020, the Company had cash on hand of $6,210,000. The Company’s approach in managing liquidity is to ensure, to the extent possible, that it will have enough liquidity to meet its liabilities as they come due by continuously monitoring actual and expected cash flows and monitoring financial market conditions for signs of weakness.
As of March 31, 2020, the Company faces no material liquidity risk and can meet all its current financial obligations as they become due and payable. The Company has $25,004,000 liabilities that are due within one year but has $30,154,000 of current assets to meet those obligations.
Subsequent to quarter end, in April 2020, the Company received over $7.5 million of payments related to the two separate provisions of the U.S. Coronavirus Aid, Relief and Economic Security (CARES) Act. One provision was to assist companies in maintaining their workforce and the second provision was to support healthcare providers.
Capital management
The Company’s shareholders’ equity totaled $21,223,000 at March 31, 2020 and had debentures with a face amount of $15,000,000. Additionally, the Company had lease liabilities with a principal amount of $16,660,000.
The Company plans to raise capital, as necessary, to meet its needs and take advantage of perceived opportunities and, therefore, does not have a numeric target for its capital structure. Funds are primarily secured through debt instruments, equity capital raised by way of private placements and convertible notes. There can be no assurance that the Company will be able to continue raising capital in this manner.
Management reviews its capital management approach on an ongoing basis and believes that this approach, given the relative size of the Company, is reasonable.
The Company invests all capital that is surplus to its immediate operational needs in short-term, liquid and highly rated financial instruments, such as cash and short-term guarantee deposits, held with major Canadian and US financial institutions.
The Company had the following equity instruments outstanding at March 31, 2020 and March 31, 2019:
As at
March 31, 2020 (000’s) |
As at
September 30, 2019 (000’s) |
||||||||
Common shares | 83,685 | 83,589 | |||||||
Underwriter Options | 367 | 367 | |||||||
Warrants | 519 | 519 | |||||||
Options – employees and consultants | 11,587 | 11,759 |
Financing
Historically and currently, the Company has financed its operations primarily from cash flow from operations, leases liabilities, debentures, equity financing, and through the issuance of shares to acquire businesses. On March 7, 2019, the Company issued $15,000,000 in 8.0% Convertible Unsecured Debentures due March 7, 2024, with interest payable semi-annually on June 30th and December 30th of each year. Each $1,000 debenture is convertible at the option of the holder into approximately 769.23 common shares. After three years, the Company can force conversion of the outstanding principal at conversion price of $1.30, if the daily volume weighted average price of the common shares exceeds $1.62/share for twenty consecutive trading days. The debenture agreement also allows for payment of cash in lieu of common shares upon exercise of conversion right by the holder, equivalent of the market price on the conversion date.
The above debenture contains multiple embedded derivatives including conversion right, forced conversion option and payment in lieu of common shares. The Company elected to value the convertible debentures in their entirety (including conversion right, forced conversion option and payment in lieu of common shares) to be subsequently measured at fair value through profit or loss (FVTPL).
Page | 7
|
AMENDED MANAGEMENT’S DISCUSSION AND ANALYSIS March 31, 2020 (Tabular dollar amounts expressed in thousands of Canadian Dollars) |
The fair value of the debenture as at March 31, 2020 was $12,147,000.
Commitments and Contingencies
From time to time, the Company is involved in various legal proceedings arising from the ordinary course of business, None of the matters in which the Company is currently involved, either individually, or in the aggregate, is expected to have a material adverse effect on the Company’s consolidated financial position, results of operations, or cash flows.
Quarterly Operating Results from continuing operations
A summary of quarterly results for the eight most recently completed quarters are as follows:
Quarter ended
March 31, 2020 |
Quarter ended
December 31, 2019 |
Quarter ended
September 30, 2019 |
Quarter ended
June 30, 2019 |
|||||||||||||
Revenue | $ | 24,101 | $ | 22,769 | $ | 19,470 | $ | 20,164 | ||||||||
Net income (loss) from continuing operations | 2,056 | (1,758 | ) | 4,400 | (12,564 | ) | ||||||||||
Net income (loss) per share – continuing operations | $ | 0.02 | $ | (0.02 | ) | $ | 0.05 | $ | (0.15 | ) |
Quarter ended
March 31, 2019 |
Quarter
ended
|
Quarter
ended
|
Quarter ended
June 30, 2018 |
|||||||||||||
Revenue | $ | 20,824 | $ | 20,509 | $ | 18,041 | $ | 18,468 | ||||||||
Net income (loss) from continuing operations | (591 | ) | (386 | ) | 679 | (1,590 | ) | |||||||||
Net income (loss) per share – continuing operations | $ | (0.01 | ) | $ | (0.00 | ) | $ | 0.01 | $ | (0.02 | ) |
Results of operations for the healthcare services market in which the Company operates show little seasonality from quarter to quarter.
Related party transactions
The Company has entered into six market rate leases for office, warehouse, and retail space with a rental Company affiliated with the Company’s Chief Executive Officer, the majority of which were entered into in 2015. The leases have a combined area of 74,520 square feet. Lease payments under these leases are approximately $68,000 per month, plus taxes, utilities and maintenance.
Payments of approximately $57,000 and $56,000 were made to members of the Board of Directors for three months ended March 31, 2020 and 2019, respectively. Payments of $124,000 and $113,000 were made to the board for the six months ended March 31, 2020 and 2019, respectively.
Key management personnel also participate in the Company’s share option program. The Company paid or accrued compensation to key management personnel the following:
Three
months ended March 31, 2020 |
Three
months ended March 31, 2019 |
Six months
ended March 31, 2020 |
Six months
ended March 31, 2019 |
|||||||||||||
Salaries and Benefits | $ | 264 | $ | 766 | $ | 523 | $ | 1,009 | ||||||||
Stock-based compensation | - | 229 | - | 562 | ||||||||||||
Total | $ | 264 | $ | 995 | $ | 523 | $ | 1,571 |
Off balance sheet arrangements
The Company has no material undisclosed off-balance sheet arrangements that have or are reasonably likely to have, a current or future effect on its results of operations or financial condition.
Page | 8
|
AMENDED MANAGEMENT’S DISCUSSION AND ANALYSIS March 31, 2020 (Tabular dollar amounts expressed in thousands of Canadian Dollars) |
ACCOUNTING AND DISCLOSURE MATTERS
Financial reporting controls
The Company is not required to certify the design and evaluation of its disclosure controls and procedures and internal controls over financial reporting and has not completed such an evaluation.
There were no substantive changes in the Company’s disclosure controls and procedures and internal controls over financial reporting during the period ended March 31, 2020 that have materially affected, or are reasonably likely to materially affect, the Company’ s disclosure controls and procedures and internal controls over financial reporting.
Critical accounting estimates
The preparation of financial statements in conformity with IFRS requires management to make estimates and assumptions that affect the reported amounts of assets, liabilities, revenues and expenses and the disclosure of contingent assets and liabilities in the amended and restated consolidated financial statements. We constantly evaluate these estimates and assumptions.
We base our estimates and assumptions on experience and other factors that are deemed reasonable under the circumstances. This involves varying degrees of judgment and uncertainty, thus the amounts currently reported in the amended and restated consolidated financial statements could prove to be inaccurate in the future.
We consider the estimates and assumptions described in this section to be an important part in understanding the amended and restated consolidated financial statements. These estimates and assumptions are subject to change, as they rely heavily on management’ s judgment and are based on factors that are inherently uncertain.
Revenue recognition
Revenue consists of net patient service revenue. Net patient service revenue is recognized at the time services are provided net of contractual adjustments based on an evaluation of expected collections resulting from the analysis of current and past due accounts, past collection experience in relation to amounts billed and other relevant information. Contractual adjustments result from the differences between the rates charged for services and reimbursements by government-sponsored healthcare programs and insurance companies for such services.
Accounts receivable
Accounts receivable are recorded at the time revenue is recognized and are presented on the balance sheet net of an allowance for uncollectible accounts. It is possible that our estimates of the allowance for uncollectible accounts could change, which could have a material impact on our operations and cash flows.
The Company will write-off receivables when the likelihood for collection is remote or and when the Company believes collection efforts have been fully exhausted and it does not intend to devote additional resources in attempting to collect.
Share Consolidation and New Stock Symbol
On December 31, 2018, the Company consolidated its common shares on the basis of one (1) new post-consolidation common share for every five (5) pre-consolidation common shares. The Consolidation affected shareholders uniformly, including holders of outstanding incentive stock options and warrants. Unless stated otherwise, all share and per share amounts have been restated retrospectively to reflect this share consolidation. The company began trading under the TSX Venture Exchange under the stock ticker symbol “PTQ” as of December 31, 2018.
Stock-based compensation
The Company accounts for stock-based compensation, including stock options and warrants, using the fair value method as prescribed by IFRS 2. Under this method, the fair value of stock options and warrants at the date of grant is amortized over the vesting period and the offsetting credit is recorded as an increase in contributed surplus. The Company accounts for forfeitures as they happen. For the three months ended March 31, 2020 and 2019, the Company recorded stock-based compensation expense of $92,000 and $361,000, respectively. For the six months ended March 31, 2020 and 2019, the Company recorded stock-based compensation expense of $134,000 and $891,000, respectively.
The fair value of the vested stock options has been charged to the statement of income (loss) and comprehensive income (loss) and credited to contributed surplus over the proper vesting period. Fair value for the options granted periods ended March 31, 2019 and 2017, used the Black-Scholes option pricing model calculated using the following assumptions:
Page | 9
|
AMENDED MANAGEMENT’S DISCUSSION AND ANALYSIS March 31, 2020 (Tabular dollar amounts expressed in thousands of Canadian Dollars) |
For the six months ended | For the six months ended | |||||||
March 31, 2020 | March 31, 2019 | |||||||
Share price | $ | 1.10 | $ | 0.63 | ||||
Risk-free interest rate | 1.64 | % | 2.24 | % | ||||
Expected volatility | 83.20 | % | 118.17 | % | ||||
Expected life of option | 4 years | 10 years | ||||||
Expected dividend yield | Nil | Nil |
Income taxes
The Company is subject to income taxes in numerous jurisdictions. Significant judgment is required in determining the provision for income taxes and the Company’s income tax provisions reflect management’s interpretation of country-specific tax law. There are many transactions and calculations for which the ultimate tax determination is uncertain during the ordinary course of business and may remain uncertain for several years after their occurrence. The Company recognizes assets and liabilities for taxation when it is probable that the relevant taxation authority will require the Company to receive or pay taxes.
Where the outcome of the determination of tax assets and liabilities is different from the amounts that were initially recorded, such differences will impact the current and deferred income taxes provision in the period in which such determination is made. Changes in tax law or changes in the way tax law is interpreted may also impact the Company’s effective tax rate as well as its business and operations.
Deferred income tax assets and liabilities are recognized for the future income tax consequences attributable to temporary differences between the financial statement carrying value of assets and liabilities and their respective income tax bases. Deferred income tax assets or liabilities are measured using enacted or substantively enacted income tax rates expected to apply to taxable income in the years in which those temporary differences are expected to be recovered or settled.
The calculation of current and deferred income taxes requires management to make estimates and assumptions and to exercise a certain amount of judgment concerning the carrying value of assets and liabilities. The current and deferred income tax assets and liabilities are also impacted by expectations about future operating results and the timing of reversal of temporary differences as well as possible audits of tax filings by regulatory agencies. Changes or differences in these estimates or assumptions may result in changes to the current and deferred tax assets and liabilities on the consolidated statements of financial position and a charge to or recovery of income tax expense.
Acquisition accounting
Accounting for business combinations requires the allocation of the Company’s purchase price to the various assets and liabilities of the acquired business at their respective fair values. The Company uses all available information to make these fair value determinations. In some instances, assumptions with respect to the timing and amount of future revenues and expenses associated with an asset or group of assets may be used to determine fair value. Actual timing and amount of net cash flows from revenues and expenses related to that asset over time may differ materially from those initial estimates, and if the timing is delayed significantly or if the net cash flows decline significantly, the asset could become impaired.
Discontinued operations
An operation is qualified as discontinued when it represents a separate major line of business and has been sold, or when the criteria for classification as an asset held for distribution have been met.
Discontinued operations are presented on the statement of income (loss) and comprehensive income (loss) for the periods reported, comprising the earnings after tax of discontinued operations until divestiture and the gain or loss after tax on sale or fair value measurement, less costs to sell.
Significant accounting judgments
The following are the critical judgments, apart from those involving estimations, that have been made in the process of applying the Company's accounting policies and that have the most significant effect on the amounts recognized in the amended and restated consolidated financial statements.
Functional currency
Management has exercised judgment in selecting the functional currency of each of the entities that it consolidates based on the primary economic environment in which the entity operates and in reference to the various indicators including the currency that primarily influences or determines the selling prices of goods and services and the cost of production, including labor, material and other costs and the currency whose competitive forces and regulations mainly determine selling prices. The amended and restated consolidated financial statements of the Company are presented in Canadian dollars, which is the parent company’s presentation currency but which differs from its functional currency, the US dollar, which was determined using managements assumption that the primary economic environment from which it will derive its revenues and the expenses incurred to generate those revenues is the US.
Page | 10
|
AMENDED MANAGEMENT’S DISCUSSION AND ANALYSIS March 31, 2020 (Tabular dollar amounts expressed in thousands of Canadian Dollars) |
Segment reporting
Management has assessed the information that is provided to the chief operating decision maker and how the business is monitored and has exercised judgment in determining that there is only one operating segment.
Asset impairment and cash generating units
For purposes of the asset impairment testing, the Company identifies cash generating units as the smallest identifiable groups of assets that generate independent cash inflows. Impairment testing is performed on these groups of assets on an annual basis or when events or circumstances indicate that the cash generating unit may become impaired considering the assessed and projected recoverable values of the cash generating unit. The Company has elected to perform the annual impairment testing in the fourth quarters.
Valuation of derivative instruments
Management has exercised judgment in the determination of the fair value of the derivative instruments. Estimating fair value for the derivatives requires determining the most appropriate valuation model, which is dependent on the terms and conditions of the instrument. This estimate also requires the judgment in the determination of the most appropriate inputs to the valuation model including the expected life of the option or warrant, volatility and dividend yield and making assumptions about them.
Recognition of leases
Management has exercised judgment in the determination of whether a contract to rent equipment represents a financing lease. Using historical returns and other operational data management has determined that in cases where the Company is the lessor, no rental agreements represent financing leases.
Goodwill impairment
Management has evaluated the recoverable amount of cash generating units and applied judgment in the discount rate and other underlying assumptions used in impairment analysis of goodwill.
Business Acquisitions
On October 31, 2018, the Company, through one of its indirect wholly owned subsidiaries, entered into a purchase agreement to acquire 100% of the shares of Central Oxygen Inc., an Indiana company. Total consideration was $395,000 in cash and stock.
On October 31, 2018, the Company, through one of its indirect wholly owned subsidiaries, entered into a purchase agreement to acquire 100% of the shares of Riverside Medical Inc., a Tennessee company. Total consideration was $131,000 in cash.
Effective October 1, 2019, the Company, through one of its indirect wholly owned subsidiaries, entered into a purchase agreement to acquire 100% of the shares of Cooley Medical Equipment, Inc., a Kentucky company, Total consideration was $3,321,000, of which $3,089,000 was paid in cash at closing, and the balance of $232,000 to be paid on the 18-month anniversary of the acquisition.
Effective December 1, 2019, the Company, through one of its indirect wholly owned subsidiaries, entered into a purchase agreement to acquire 100% of the shares of Acadia Medical Supply, Inc., a Maine company. Total consideration was $1,861,000, of which $1,334,000 was paid in cash at closing, and the balance of $527,000 to be paid on the one- and two-year anniversaries of the acquisition.
FINANCIAL INSTRUMENTS AND RISK MANAGEMENT
Financial instrument risk exposure
The Company’ s activities expose it to a variety of financial risks: market risk (including price risk, currency risk and interest rate risk), credit risk and liquidity risk. These risks arise from the normal course of operations and all transactions are undertaken to support the Company’ s ability to continue as a going concern. Risk management is carried out by management under policies approved by the Board of Directors. Management identifies and evaluates the financial risks in co-operation with the Company’s operating units. The Company’s overall risk management program seeks to minimize potential adverse effects on the Company’s financial performance.
Page | 11
|
AMENDED MANAGEMENT’S DISCUSSION AND ANALYSIS March 31, 2020 (Tabular dollar amounts expressed in thousands of Canadian Dollars) |
Credit risk
Credit risk is the risk that one party to a financial instrument will fail to discharge an obligation and cause the other party to incur a financial loss. Financial instruments that potentially subject the Company to credit risk are primarily cash and accounts receivable. Each subsidiary places its cash with one major financial institution. At times, the cash in the financial institution is temporarily in excess of the amount insured by the Federal Deposit Insurance Corporation. Substantially all accounts receivable are due under fee-for-service contracts from third party payors, such as insurance companies and government-sponsored healthcare programs, directly from patients or for rebates due from manufacturers. Receivables generally are collected within industry norms for third-party payors and from manufacturers. The Company continuously monitors collections from its clients and maintains an allowance for bad debts based upon any specific payor collection issues that are identified and historical experience.
The Company recorded bad debt expense of $1,984,000 and $1,322,000 for three months ended March 31, 2020 and 2019, respectively. As of March 31, 2020, no one customer represented more than 10% of outstanding accounts receivable.
Currency risk
Currency risk is the risk that the Company will be subject to foreign currency fluctuations in satisfying obligations related to its foreign activities.
The Company realizes virtually all of its sales and makes a significant amount of its purchases in US dollars. Consequently, assets and liabilities are exposed to foreign exchange fluctuations.
The Company monitors and forecasts the values of net foreign currency cash flow and statement of financial position exposures and from time to time could authorize the use of derivative financial instruments such as forward foreign exchange contracts to economically hedge a portion of foreign currency fluctuations.
Based on the above net exposure at March 31, 2020, a 10% depreciation or appreciation of the US dollar against the Canadian dollar would not result in a significant effect in net loss. The Company has not employed any currency hedging programs during the periods ended March 31, 2020 or 2019.
Liquidity risk
Liquidity risk is the risk that the Company will not be able to meet its financial obligations as they become due. The Company’s approach in managing liquidity is to ensure, to the extent possible, that it will have sufficient liquidity to meet its liabilities when due, under both normal conditions, by continuously monitoring actual and budgeted cash flows.
As of March 31, 2020, the Company faces no material liquidity risk and can meet all its current financial obligations as they become due and payable. The Company has $25,004,000 of liabilities that are due within one year. The Company has $27,002,000 of current assets to meet those obligations.
Interest rate risk
Interest rate risk is the risk that the future cash flows of a financial instrument will fluctuate because of changes in market interest rates. Interest rate risk is limited to potential decreases on the interest rate offered on cash and cash equivalents held with Chartered Canadian and registered US financial institutions. The Company considers this risk to be immaterial. The interest on the convertible notes is not subject to cash flow interest rate risk as these instruments bear interest at fixed rates.
RISK FACTORS
While it is impossible to identify all such risk factors, factors that could cause actual results to differ materially from those estimated by us include:
Market Price of the Company Shares
The Company Shares are listed and posted for trading on the TSX Venture Exchange. Securities of small-cap and healthcare companies have experienced substantial volatility in the past, often based on factors unrelated to the financial performance or prospects of the companies involved. These factors include macroeconomic developments in North America and globally, and market perceptions of the attractiveness of particular industries. The price of the Company Shares is also likely to be significantly affected by short-term changes in cost of goods, or in financial condition or results of operations. Other factors unrelated to the performance of the Company that may have an effect on the price of the Company Shares include the following: the extent of analytical coverage available to investors concerning the business of the Company may be limited if investment banks with research capabilities do not follow the Company securities; lessening in trading volume and general market interest in the Company’s securities may affect an investor’s ability to trade significant numbers of the Company Shares; the size of the Company’s public float may limit the ability of some institutions to invest in the Company’s securities; and a substantial decline in the price of the Company Shares that persists for a significant period of time could cause the Company’s securities, if listed on an exchange, to be delisted from such exchange, further reducing market liquidity.
As a result of any of these factors, the market price of the Company Shares at any given point in time may not accurately reflect the long-term value of the Company. Securities class-action litigation often has been brought against companies following periods of volatility in the market price of their securities. The Company may in the future be the target of similar litigation. Securities litigation could result in substantial costs and damages and divert management’s attention and resources.
Page | 12
|
AMENDED MANAGEMENT’S DISCUSSION AND ANALYSIS March 31, 2020 (Tabular dollar amounts expressed in thousands of Canadian Dollars) |
Dilution
The Company will require additional funds in respect of the further development of the company through acquisition. If the Company raises funds by issuing additional equity securities, such financing will dilute the equity interests of its shareholders.
Future Sales of Shares by Existing Shareholders
Sales of the Company Shares in the public markets, or the potential for such sales, could decrease the trading price of the Company Shares and could impair The Company’s ability to raise capital through future sales of the Company Shares. The Company may from time to time have previously issued securities at an effective price per share which will be lower than the market price of the Company Shares. Accordingly, certain shareholders of The Company may have an investment profit in the Company Shares that they may seek to liquidate.
Limited History of Operations
The Company has a limited history of operations. There can be no assurance that the business of the Company and/or its subsidiaries will be successful and generate, or maintain, any profit.
Novel Business Model
Home monitoring of patients on anticoagulants is a relatively new business, making it difficult to predict market acceptance, development, expansion and direction. The home monitoring services to be provided by the Company represent a relatively new development in the U.S. healthcare industry. Accordingly, adoption by patients and physicians can require education, which can result in a lengthy sales cycle. The market may take time to develop. Physicians and/or patients may be slow to adopt new methods. The development of the Company’s home monitoring business will depend on many factors. These factors include: The Company’s ability to differentiate its services from those of its competitors; the extent and timing of the acceptance of the Company’s services as a replacement for, or supplement to, traditional methods of monitoring patients; the effectiveness of the Company’s sales and marketing and engagement efforts with customers and their health plan participants; the Company’s ability to provide quality customer service, as perceived by patients and physicians.
Because the monitoring business is evolving, the Company may not be able to anticipate and adapt to the developing market. Moreover, management cannot predict with certainty the future growth rate or the ultimate size of the market.
Reimbursement Rates May Decline
Reimbursement for services to be provided by the Company will come primarily from Medicare and private health insurance companies. The reimbursement rates offered are outside the control of the Company. Reimbursement rates in this area, and much of the U.S. health care market in general, have been subject to continual reductions as health insurers and governmental entities attempt to control health care costs. The extent and timing of any reduction in reimbursement rates cannot be predicted by the Company.
Reductions in reimbursement rates can have a material impact on the profitability of the Company’s operations. A reduction in reimbursement may be unrelated to any concurrent decline in the cost of operations, thereby resulting in reduced profitability. The Company’s costs of operations could increase, but the cost increases may not be passed on to customers because reimbursement rates are set without regard to the cost of service.
Dependence Upon Relationships With Key Suppliers
There are few manufacturers of equipment which can be used for home monitoring of patients on anticoagulants. There is the possibility that a new meter will encounter difficulties or “bugs” when first sent to market, and that initial technical support costs may be higher than for more well-established meters. Even if the Company switches to other competing meters, they may also encounter technical difficulties or regulatory issues. The emerging nature of the market presents risks that suppliers may not be able to provide equipment to satisfy demand. Demand may outstrip supply, leading to equipment shortages. Conversely, incorrect demand forecasting could lead to excess inventory. If the Company fails to achieve certain volume of sales, prices of meters may increase. The industry is subject to a high level of regulatory scrutiny, and government or manufacturer recalls could adversely affect the Company’s ability to provide monitoring services and achieve revenue targets.
Inadequate supply could impair the Company’s ability to attract new business and could create upward pricing pressure on equipment and supplies, adversely affecting margins for The Company. Additionally, the market for financing home testing meters and other supplies needed by the Company is limited. Several equipment manufacturers are pursuing a strategy of vertical integration, and should the Company ever need to order equipment from those manufacturers, such equipment may not be available on favorable terms.
Reliance Upon Few Payers
The Company will earn revenues by seeking reimbursement from Medicare and private health insurance companies, with the Medicare program of the US government being the primary entity making payments. If the Medicare program were to slow payments of receivables for any reason, the Company would be adversely impacted. In addition, both governmental and private health insurance companies may seek ways to avoid or delay reimbursement, which could adversely affect cash flow and revenues for the Company.
Page | 13
|
AMENDED MANAGEMENT’S DISCUSSION AND ANALYSIS March 31, 2020 (Tabular dollar amounts expressed in thousands of Canadian Dollars) |
Government Regulation
Some operations of the Company will require certain licenses and permits from the authorities in the United States. The ability of the Company and its subsidiaries to obtain, sustain or renew any such licenses and permits on acceptable terms is subject to changes in regulations and policies and to the discretion of the applicable authorities or other governmental agencies. The ability of the Company to collect certain revenues in the future will depend on the Company receiving approval of an independent diagnostic testing facility and entering into an agreement with Medicare. There is no guarantee that the Company will meet these conditions. The Company will be subject to regulation from United States federal and state authorities. Regulatory action could disrupt its ability to provide services. Such regulatory action could come in the form of actions against manufacturers, unrelated to the Company’s conduct, or actions based upon the Company’s operation. Regulatory action could prevent or delay reimbursement for certain services.
There could also be legislative action that could adversely affect the Company’s business model, including, without limitation: a decision by the United States government to become the exclusive provider of health care services at some time in the future; changes in United States federal or state laws, rules, and regulations, including those governing the corporate practice of medicine, and fee splitting; and changes in the United States Anti-Kickback Statute and Stark Law and/or similar state laws, rules, and regulations. Conversely, budgetary problems in the United States could lead to reduced funding, substantial modification or elimination of Medicare programs, which would end reimbursement for many patients. There can be no assurance that new rules and regulations will not be enacted or that existing rules and regulations will not be applied in a manner which could limit or curtail the business of the Company. Amendments to current laws and regulations could have a substantial adverse impact on the Company.
CMS (Centers for Medicare & Medicaid Services) policies of health insurance for Medicare in the United States may affect the amount of revenue the Company receives. The Company will continue to be subject to risk that reimbursement rates for its services from both federal and private payers will decline over time. Reimbursement from federal programs is subject to constant regulatory review and increasing audits by federal authorities, the effect of which may be to increase costs of service and delay or affect reimbursement, which could negatively impact cash flow and/or revenue. Audits may be costly and time consuming, and could delay cash flow, even if the Company acted properly in all respects. The policies of health insurance carriers in the United States may affect the amount of revenue the Company receives.
Highly Competitive Market
The Company will participate in a highly competitive market, which may become more competitive as new players enter. Certain competitors will be subsidiaries or divisions of larger, much better capitalized companies. Certain competitors will have vertically integrated manufacturing and services sectors of the market. The Company may have less capital and may encounter greater operational challenges in serving the market. Better capitalized competitors may also be expected to borrow money or raise debt to purchase equipment more easily than the Company.
Low profit market segments
Where the Company provides services to a patient who does not use a meter often or for an extended period of time, profitability may be unlikely in respect of that patient. Also, certain patients may have a personal preference to travel to a lab for testing rather than self-testing. In these cases, the Company may not have a meter with the patient long enough to recoup costs. Where the Company owns the meter, the failure of the patient to return the meter to the Company may impact profitability. Legal costs of bringing an action to obtain return of a meter may exceed the value of the machine, leading to losses with certain patient populations even under favorable reimbursement environments.
Foreign Subsidiaries
The Company plans to conduct all its operations through respective United States subsidiaries. Therefore, to the extent of these holdings, the Company (directly and indirectly) will be dependent on the cash flows of these subsidiaries to meet its obligations. The ability of such subsidiaries to make payments to their parent companies may be constrained by the following factors: the level of taxation, particularly corporate profits and withholding taxes, in the jurisdiction in which each subsidiary operates; and the introduction of exchange controls or repatriation restrictions or the availability of hard currency to be repatriated.
Attraction and Retention of Key Personnel Including Directors
The Company will have a small management team and the loss of a key individual or inability to attract suitably qualified staff could have a material adverse impact on the business of The Company. The Company may also encounter difficulties in obtaining and maintaining suitably qualified staff. The success of The Company depends on the ability of management to interpret market data correctly and to interpret and respond to economic, market and other conditions to locate and adopt appropriate opportunities. No assurance can be given that individuals with the required skills will continue employment with The Company or that replacement personnel with comparable skills can be found. The Company will be dependent on the services of key executives, including the directors of The Company and a small number of highly skilled and experienced executives and personnel. Due to the relatively small size of The Company, the loss of these persons or The Company’s inability to attract and retain additional highly skilled employees may adversely affect its business and future operations.
Dividends
The Company currently intends to retain future earnings to finance the operation, development and expansion of its business.
Page | 14
|
AMENDED MANAGEMENT’S DISCUSSION AND ANALYSIS March 31, 2020 (Tabular dollar amounts expressed in thousands of Canadian Dollars) |
The Company does not anticipate paying cash dividends on the Company Shares in the foreseeable future. Payment of future cash dividends, if any, will be at the discretion of the Company Board and will depend on the Company’s financial condition, results of operations, contractual restrictions, capital requirements, business prospects and other factors that the Company Board may consider relevant. Accordingly, investors will only see a return on their investment if the value of the Company Shares appreciates.
Discretion in the Use of Available Funds
Management will have broad discretion concerning the use of the available funds of the Company as well as the timing of their expenditures. As a result, shareholders and investors will be relying on the judgment of management of the Company on completion of the Arrangement for the application of the available funds of the Company (see “Available Funds and Principal Purposes” above). Management may use the available funds in ways that an investor may not consider desirable. The results and the effectiveness of the application of the available funds are uncertain. If the available funds are not applied effectively, the Company’s results of operations may suffer.
Potential Conflicts of Interest
Some of the proposed directors and officers of the Company are engaged and will continue to be engaged as directors and officers of other companies in the search for additional business opportunities on behalf of such other corporations, and situations may arise where these directors and officers will be in direct competition with the Company. Some of the proposed directors and officers of the Company are or may become directors or officers of other companies engaged in other business ventures.
Conflicts of interest, if any, which arise may be subject to and be governed by procedures prescribed by the Business Corporations Act (British Columbia) which require a director or officer of a corporation who is a party to or is a director or an officer of or has a material interest in any person who is a party to a material contract or proposed material contract with The Company to disclose his interest and to refrain from voting on any matter in respect of such contract unless otherwise permitted under the Business Corporations Act (British Columbia). Any decision made by any of such directors and officers involving the Company should be made in accordance with their duties and obligations to deal fairly and in good faith with a view to the best interests of the Company and its shareholders.
Insurance and Uninsured Risks
The Company’s business will continue to be subject to several risks and hazards generally, including general liability. Such occurrences could result in damage to property, inventory, facilities, personal injury or death, damage to the properties of the Company, or the properties of others, monetary losses and possible legal liability. The Company may be subject to product liability and medical malpractice claims, which may adversely affect its operations. The Company’s industry is highly regulated, and the Company may be subject to regulatory scrutiny for violations of regulations and laws. The Company could be adversely affected by the time and cost involved with regulatory investigations even if it has operated in compliance with all laws. Investigations could also adversely affect the timely payment of receivables.
Although the Company will maintain insurance to protect against certain risks in such amounts as it considers to be reasonable, its insurance will not cover all the potential risks associated with its operations. The Company may also be unable to maintain insurance to cover these risks at economically feasible premiums. Insurance coverage may not continue to be available or may not be adequate to cover any resulting liability. The Company might also become subject to liability which may not be insured against or which the Company may elect not to insure against because of premium costs or other reasons. Losses from these events may cause the Company to incur significant costs that could have a material adverse effect upon its financial performance and results of operations.
Additional Capital
The development and the business (including acquisitions) of the Company may require additional financing, which may involve high transaction costs, dilution to shareholders, high interest rates or unfavorable terms and conditions. Failure to obtain sufficient financing may result in the delay or indefinite postponement of its business plans. As the Company will likely be unable to obtain traditional debt financing until it has a profitable and longer operating history, the initial primary source of funding available to the Company will consist of equity financing. There can be no assurance that additional capital or other types of financing will be available if needed or that, if available, the terms of such financing will be favorable to the Company.
Loss of Foreign Private Issuer Status
The Company may lose its foreign private issuer status in the future, which could result in significant additional costs and expenses. As a foreign private issuer, as defined in Rule 3b-4 under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), the Company is currently exempt from certain of the provisions of the U.S. federal securities laws. For example, an issuer with total assets in excess of US$10 million and whose outstanding equity securities are held by 2,000 or more persons, or 500 or more persons who are not “accredited investors”, must register such securities as a class under the Exchange Act. However, as a foreign private issuer subject to Canadian continuous disclosure requirements, the Company may claim the exemption from registration under the Exchange Act provided by Rule threeg3-2(b) thereunder, even if these thresholds are exceeded. To be considered a foreign private issuer, The Company must satisfy a United States shareholder test (not more than 50% of the voting securities of a company must be held by residents of the United States) if any of the following disqualifying conditions apply: (i) the majority of the Company’s executive officers or directors are United States citizens or residents; (ii) more than 50 percent of The Company’s assets are located in the United States; or (iii) The Company’s business is administered principally in the United States. Based on information available as at the date hereof, approximately 26.7% of the Company’s outstanding voting securities are anticipated to be directly or indirectly held of record by residents of the United States. If the Company loses its status as a foreign private issuer, these regulations could apply and it could also be required to commence reporting on forms required of U.S. domestic companies, such as Forms 10-K, 10-Q and 8-K. It could also become subject to U.S. proxy rules, and certain holders of its equity securities could become subject to the insider reporting and “short swing” profit rules under Section 16 of the Exchange Act. In addition, any securities issued by the Company if it loses foreign private issuer status would become subject to certain rules and restrictions under the Securities Act of 1933, as amended, even if they are issued or resold outside the United States. Compliance with the additional disclosure, compliance and timing requirements under these securities laws would likely result in increased expenses and would require the Company’s management to devote substantial time and resources to comply with new regulatory requirements.
Page | 15
|
AMENDED MANAGEMENT’S DISCUSSION AND ANALYSIS March 31, 2020 (Tabular dollar amounts expressed in thousands of Canadian Dollars) |
United States Operations and Exchange Rate Fluctuations
All the Company’s revenue generating operations will occur in the United States. The Company will be subject to a number of risks associated with its operations that may increase liability and costs and require significant management attention. These risks include:
· | compliance with laws of the United States that will apply to the Company’s United States operations, including lawful access, privacy laws and anti-corruption laws; | |
· | instability in economic or political conditions, including inflation, recession and political uncertainty; | |
· | potential adverse tax consequences; and | |
· | litigation in United States courts. |
In addition, the Company will be exposed to foreign exchange risk as a result of substantially all its revenue generating operations taking place in the United States and thus, revenues and expenses being earned and paid in United States dollars while the Company reports its financial statements in Canadian dollars. If the Canadian dollar appreciates relative to the United States dollar, the Company’s Canadian dollar expenses and revenues will decrease when translated from United States dollars for financial reporting purposes. Conversely, if the Canadian dollar depreciates relative to the United States dollar, the Company’s Canadian dollar expenses and revenues will increase when translated from United States dollars for financial reporting purposes. In addition, exchange rate fluctuations may affect the costs that The Company incurs in its operations. The appreciation of non- United States dollar currencies against the United States dollar can increase the cost of operations in United States dollar terms. Foreign exchange rate fluctuations may materially affect the Company’s financial condition and results of operations in future periods.
The Company will continue to translate the assets and liabilities of its United States dollar functional currency subsidiaries into Canadian dollars using exchange rates in effect at the end of each period. Revenue and expenses for these subsidiaries are translated using average exchange rates that approximate those in effect during the period. The Company will continue to maintain cash balances in both United States and Canadian dollars, but management anticipates that it will not purchase any securities or financial instruments to speculate on or hedge against a rise or fall in the value of the United States dollar.
Global Economy
Recent market events and conditions, including disruptions in the international credit markets and other financial systems and the deterioration of global economic conditions, could impede the Company’s access to capital or increase the cost of capital. From 2007 to 2009, the United States credit markets began to experience serious disruption due to deterioration in residential property values, defaults and delinquencies in the residential mortgage market and a decline in the credit quality of mortgage- backed securities. These problems led to a slow-down in residential housing market transactions, declining housing prices, delinquencies in non-mortgage consumer credit and a general decline in consumer confidence. These conditions caused a loss of confidence in the broader United States and global credit and financial markets and resulted in the collapse of, and government intervention in, major banks, financial institutions and insurers and created a climate of greater volatility, less liquidity, widening of credit spreads, a lack of price transparency, increased credit losses and tighter credit conditions which continued throughout 2012 with continued uncertainty in the European marketplace and continued uncertainty surrounding the “fiscal cliff” , the United States government deficit and the United States government spending cuts. Notwithstanding various actions by the United States and foreign governments, concerns about the general condition of the capital markets, financial instruments, banks, investment banks, insurers and other financial institutions caused the broader credit markets to deteriorate and stock markets to fluctuate substantially.
These disruptions in the current credit and financial markets have had a significant material adverse impact on several financial institutions and have limited access to capital and credit for many companies, including junior mining companies. These disruptions could, among other things, make it more difficult for the Company to obtain, or increase its cost of obtaining, capital and financing for its operations. Access to additional capital may not be available to the Company on terms acceptable to it, or at all.
Page | 16
|
AMENDED MANAGEMENT’S DISCUSSION AND ANALYSIS March 31, 2020 (Tabular dollar amounts expressed in thousands of Canadian Dollars) |
COVID-19 Pandemic
On March 11, 2020, the World Health Organization declared the outbreak of a novel strain of coronavirus (“COVID-19”) a global pandemic. In response to the outbreak, governmental authorities in the United States and internationally have introduced various recommendations and measures to try to limit the pandemic, including travel restrictions, border closures, non-essential business closures, quarantines, self-isolations, shelters-in-place, and social distancing. The COVID-19 outbreak and the response of governmental authorities to try to limit it are having a significant impact on the private sector and individuals, including unprecedented business, employment, and economic disruptions.
Although the Company has taken steps to mitigate the impact of COVID-19, the continued presence and spread of COVID-19 nationally and globally could have a material adverse impact on the Company’s business, operations, and financial results and position, including through employee attrition, disruptions to the Company’s supply chains and sales channels, restrictions of operations at our retail stores, changes in the number of Americans with health insurance resulting in a change in demand for the Company’s products, as well as a deterioration of general economic conditions including a possible national or global recession. Due to the speed with which the COVID-19 situation is developing and the uncertainty of its magnitude, outcome, and duration, it is not possible to estimate its impact on the Company’s business, operations, financial results and position or prospects at this time.
The Company continues to monitor the situation and work with its stakeholders (including customers, employees, and suppliers) in order to assess further possible implications to its business, supply chain, and customers, and, where practicable, mitigate adverse consequences and responsibly address this global pandemic.
Finally, the actual and threatened spread of COVID-19 globally could adversely affect global economies and financial markets, resulting in a prolonged economic downturn and a decline in the value of the Company’s share price. The extent to which COVID- 19 (or any other disease, epidemic, or pandemic) impacts business activity or financial results, and the duration of any such negative impact, will depend on future developments, which are highly uncertain and cannot be predicted, including new information which may emerge concerning COVID-19 and the actions required to contain or treat its impact, among others.
Page | 17
Exhibit 99.41
Notice to Reader
As described in Note 15, the Company identified and corrected an error related to the current and long-term portions of its long-term lease liabilities as of March 31, 2020. The Company also corrected the acquisition consideration and purchase price allocation for its two acquisitions during the six months ended March 31, 2020 and various other changes to note disclosures.
Protech Home Medical Corp.
Amended and Restated
Condensed Consolidated Interim Financial Statements
2020 Second Quarter
For the Three and Six Months Ended
March 31, 2020 and 2019
(UNAUDITED)
(Expressed in Canadian dollars)
TABLE OF CONTENTS
Amended and Restated Condensed Consolidated Statements of Financial Position | Page 3 | |
Amended and Restated Condensed Consolidated Statements of Income (Loss) and Comprehensive Income (Loss) | Page 4 | |
Amended and Restated Condensed Consolidated Statements of Changes in Shareholders’ Equity | Page 5 | |
Amended and Restated Condensed Consolidated Statements of Cash Flows | Page 6 | |
Notes to the Condensed Consolidated Financial Statements | Pages 7-17 |
pROTECH HOME MEDICAL CORP.
AMEDNDED AND RESTATED CONDENSED CONSOLIDATED INTERIM
STATEMENTS OF FINANCIAL POSITION
(UNAUDITED)
(Expressed in thousands of Canadian Dollars, except per share amounts)
Notes |
As at
March 31, 2020 |
As at
September 30, 2019 |
||||||||||
ASSETS | ||||||||||||
Current Assets | ||||||||||||
Cash | $ | 6,210 | $ | 12,855 | ||||||||
Accounts receivable, net | 15,047 | 12,390 | ||||||||||
Inventory, net | 4 | 7,808 | 4,738 | |||||||||
Prepaid expenses and other current assets | 1,089 | 800 | ||||||||||
Total current assets | 30,154 | 30,783 | ||||||||||
Long-term assets | ||||||||||||
Property and equipment and right of use assets, net | 5 | 26,024 | 19,496 | |||||||||
Goodwill | 6 | 5,744 | 1,881 | |||||||||
Intangible assets, net | 6 | 2,685 | 2,911 | |||||||||
Deposits | 104 | 94 | ||||||||||
Total long-term assets | 34,557 | 24,382 | ||||||||||
TOTAL ASSETS | $ | 64,711 | $ | 55,165 | ||||||||
LIABILITIES | ||||||||||||
Current Liabilities | ||||||||||||
Trade payables | $ | 10,919 | $ | 8,122 | ||||||||
Accrued liabilities | 3,579 | 2,319 | ||||||||||
Current portion of lease liabilities | 7 | 10,506 | 8,528 | |||||||||
Total current liabilities | 25,004 | 18,969 | ||||||||||
Long-Term Liabilities | ||||||||||||
Debentures | 7 | 12,147 | 13,966 | |||||||||
Lease liabilities | 7 | 6,094 | 3,081 | |||||||||
Other long-term liabilities | 243 | - | ||||||||||
Total long-term liabilities | 18,484 | 17,047 | ||||||||||
TOTAL LIABILITIES | 43,488 | 36,016 | ||||||||||
SHAREHOLDERS' EQUITY | ||||||||||||
Share capital | 198,223 | 198,196 | ||||||||||
Contributed surplus | 21,524 | 21,390 | ||||||||||
Accumulated deficit | (213,557 | ) | (213,440 | ) | ||||||||
Accumulated other comprehensive income | 15,033 | 13,003 | ||||||||||
TOTAL SHAREHOLDERS' EQUITY | 21,223 | 19,149 | ||||||||||
TOTAL LIABILITIES AND SHAREHOLDERS' EQUITY | $ | 64,711 | $ | 55,165 |
APPROVED ON BEHALF OF THE BOARD:
signed “Donald Ewing” signed “Mark Greenberg”
The accompanying notes are an integral part of these condensed consolidated interim financial statements.
Page | 3
pROTECH HOME MEDICAL CORP.
AMENDED AND RESTATED CONDENSED CONSOLIDATED INTERIM
STATEMENTS OF INCOME (LOSS) AND COMPREHENSIVE INCOME (LOSS)
(UNAUDITED)
(Expressed in thousands of Canadian Dollars, except per share amounts)
Notes |
Three months
ended March 31, 2020 |
Three Months
ended March 31, 2019 |
Six Months ended
March 31, 2020 |
Six Months ended
March 31, 2019 |
||||||||||||||||
Revenue | ||||||||||||||||||||
Sales of medical equipment and supplies | $ | 10,105 | $ | 9,380 | $ | 19,967 | $18,694 | |||||||||||||
Rentals of medical equipment | 13,996 | 11,444 | 26,903 | 22,639 | ||||||||||||||||
Total revenue | 24,101 | 20,824 | 46,870 | $41,333 | ||||||||||||||||
Cost of revenue | 6,502 | 6,082 | 12,531 | 12,312 | ||||||||||||||||
Gross profit | 17,599 | 14,742 | 34,339 | 29,021 | ||||||||||||||||
Selling, general, and administrative | 10 | 12,740 | 10,780 | 25,292 | 21,323 | |||||||||||||||
Depreciation | 5 | 4,495 | 2,853 | 9,046 | 6,020 | |||||||||||||||
Amortization of intangible assets | 6 | 167 | 151 | 406 | 302 | |||||||||||||||
Stock-based compensation | 8 | 92 | 361 | 134 | 891 | |||||||||||||||
Gain on sale of property and equipment | (11 | ) | - | (91 | ) | (2) | ||||||||||||||
Other expense (income) | (55 | ) | 165 | (201 | ) | 171 | ||||||||||||||
Operating Income from continuing operations | 171 | 432 | (247 | ) | 316 | |||||||||||||||
Financing expenses | ||||||||||||||||||||
Interest expense on debentures | 300 | 162 | 600 | 323 | ||||||||||||||||
Interest expense on lease liabilities | 320 | 182 | 624 | 318 | ||||||||||||||||
Accretion expense | - | 420 | - | 520 | ||||||||||||||||
Change in fair value of debentures and derivative | 7 | (2,549 | ) | 96 | (1,814 | ) | 28 | |||||||||||||
Income (loss) before taxes from continuing operations | 2,100 | (428 | ) | 343 | (873) | |||||||||||||||
Provision for income taxes | 44 | 163 | 44 | 105 | ||||||||||||||||
Net income (loss) from continuing operations | 2,056 | (591 | ) | 299 | (978) | |||||||||||||||
Discontinued operations: | ||||||||||||||||||||
Net income (loss) from discontinued operations | 13 | (416 | ) | 61 | (416 | ) | 582 | |||||||||||||
Net income (loss) | $ | 1,640 | $ | (530 | ) | $ | (117 | ) | $(396) | |||||||||||
Other comprehensive income (loss) | ||||||||||||||||||||
Cumulative translation adjustment | 2,567 | (493 | ) | 2,030 | 962 | |||||||||||||||
Comprehensive income (loss) | $ | 4,207 | $ | (1,023 | ) | $ | 1,913 | $566 | ||||||||||||
Net income (loss) per share | ||||||||||||||||||||
Basic | 11 | $ | 0.02 | $ | (0.01 | ) | $ | (0.00 | ) | $(0.00) | ||||||||||
Diluted | 11 | $ | 0.02 | $ | (0.01 | ) | $ | (0.00 | ) | $(0.00) | ||||||||||
Weighted average number of common shares outstanding: | ||||||||||||||||||||
Basic | 83,657 | 83,530 | 83,623 | 82,176 | ||||||||||||||||
Diluted | 88,496 | 83,550 | 83,623 | 82,176 |
The accompanying notes are an integral part of these condensed consolidated interim financial statements.
Page | 4
PROTECH HOME MEDICAL CORP.
AMEDNDED AND RESTATED CONDENSED CONSOLIDATED INTERIM
STATEMENTS OF CHANGES IN SHAREHOLDERS’ EQUITY
(UNAUDITED)
(Expressed in thousands of Canadian Dollars)
Number
of Shares (000’s) |
Capital
stock |
Contributed
surplus |
Accumulated
Deficit |
Accumulated
other comprehensive income |
||||||||||||||||||||
Balance September 30, 2018 | 75,819 | $ | 193,951 | $ | 19,041 | $ | (206,055 | ) | $ | 12,332 | $ | 19,269 | ||||||||||||
Net income (loss) | - | - | - | (396 | ) | - | (396 | ) | ||||||||||||||||
Other comprehensive income | - | - | - | - | 962 | 962 | ||||||||||||||||||
Stock-based compensation (Note 8) | - | - | 891 | - | - | 891 | ||||||||||||||||||
Stock issued with acquisition (Note 3) | 227 | 164 | - | - | - | 164 | ||||||||||||||||||
Proceeds from issuance of shares (Note 8) | 7,483 | 3,604 | - | - | - | 3,604 | ||||||||||||||||||
Underwriter options issued (Note 8) | - | (135 | ) | 135 | - | - | - | |||||||||||||||||
Balance March 31, 2019 | 83,529 | $ | 197,584 | $ | 20,067 | $ | (206,451 | ) | $ | 13,294 | $ | 24,494 | ||||||||||||
Balance September 30, 2019 | 83,589 | $ | 198,196 | $ | 21,390 | $ | (213,440 | ) | $ | 13,003 | $ | 19,149 | ||||||||||||
Net loss | - | - | - | (117 | ) | - | (117 | ) | ||||||||||||||||
Exercise of stock options (Note 8) | 96 | 27 | - | - | - | 27 | ||||||||||||||||||
Other comprehensive income | - | - | - | - | 2,030 | 2,030 | ||||||||||||||||||
Stock-based compensation (Note 8) | - | - | 134 | - | - | 134 | ||||||||||||||||||
Balance March 31, 2020 | 83,685 | $ | 198,223 | $ | 21,524 | $ | (213,557 | ) | $ | 15,033 | $ | 21,223 |
The accompanying notes are an integral part of these condensed consolidated interim financial statements.
Page | 5
PROTECH HOME MEDICAL CORP.
AMENDED AND RESTATED CONDENSED CONSOLIDATED INTERIM
STATEMENTS OF CASH FLOWS
(UNAUDITED)
(Expressed in thousands of Canadian Dollars)
Notes |
Six months ended
March 31, 2020 |
Six months ended
March 31, 2019 |
||||||||||
Operating activities | ||||||||||||
Net income from continuing operations | $ | 299 | $ | (978 | ) | |||||||
Net income from discontinued operations | 13 | (416 | ) | 582 | ||||||||
Adjustments to reconcile net income to net cash provided by operating activities: | ||||||||||||
Depreciation and amortization | 9,452 | 6,323 | ||||||||||
Depreciation and amortization – discontinued operations | 13 | - | 232 | |||||||||
Accretion expense | - | 520 | ||||||||||
Change in fair value of debentures and derivative | 7 | (1,814 | ) | 28 | ||||||||
(Gain)/loss on disposal of property and equipment | (91 | ) | 163 | |||||||||
Stock-based compensation | 8 | 134 | 891 | |||||||||
Bad debt expense | 10 | 4,114 | 2,860 | |||||||||
Bad debt expense – discontinued operations | - | 32 | ||||||||||
Change in Working Capital: | ||||||||||||
Net increase in accounts receivable | (4,890 | ) | (6,752 | ) | ||||||||
Net increase in inventory | (1,473 | ) | (1,553 | ) | ||||||||
Net increase in other current assets | (163 | ) | (219 | ) | ||||||||
Net increase in trade payables and accrued liabilities | 839 | 1,979 | ||||||||||
Net cash flows provided by operating activities | 5,991 | 4,108 | ||||||||||
Investing activities | ||||||||||||
Purchases of property and equipment | (77 | ) | (568 | ) | ||||||||
Proceeds from sales of property and equipment | 169 | 15 | ||||||||||
Cash paid for acquisitions | 3 | (4,160 | ) | (526 | ) | |||||||
Net cash flow used in investing activities | (4,068 | ) | (1,079 | ) | ||||||||
Financing activities | ||||||||||||
Payments of finance lease obligations | (9,072 | ) | (6,382 | ) | ||||||||
Proceeds from issuance of debenture | - | 13,959 | ||||||||||
Proceeds from the exercise of options | 27 | - | ||||||||||
Proceeds from issuance of common shares | - | 3,604 | ||||||||||
Net cash flow provided by (used in) financing activities | (9,045 | ) | 11,181 | |||||||||
Net increase (decrease) in cash | (7,122 | ) | 14,210 | |||||||||
Effect of exchange rate changes on cash held in foreign currencies | 477 | 588 | ||||||||||
Cash, beginning of period | 12,855 | 4,331 | ||||||||||
Cash, end of period | $ | 6,210 | $ | 19,129 |
The accompanying notes are an integral part of these condensed consolidated interim financial statements.
Page | 6
PROTECH HOME MEDICAL CORP.
NOTES TO THE AMENDED AND RESTATED CONDENSED CONSOLIDATED
INTERIM FINANCIAL STATEMENTS
(UNAUDITED)
(Tabular dollar amounts expressed in thousands of Canadian Dollars, except per share amounts)
1. | Nature of operations |
Reporting entity
Protech Home Medical Corp. ("Protech" or the “Company”) was incorporated under the Business Corporations Act (Alberta) on March 5, 1993. On December 30, 2013, the Company was continued into British Columbia, Canada. The address of the registered office is 5626 Larch St. Suite 202, Vancouver, BC V6M 4E1. The head office is located at 1019 Town Drive, Wilder, Kentucky, United States. The Company is a participating Medicare provider that provides i) nebulizers, oxygen concentrators, and CPAP and BiPAP units; ii) traditional and non-traditional durable medical respiratory equipment and services; and iii) non-invasive ventilation equipment, supplies and services. The Company has embarked on an acquisition strategy for additional revenue and profit growth. The Company’s shares are traded on the TSX Venture Exchange under the symbol PTQ. The stock is also traded over the counter in the United States under the symbol PHMZF.
On July 29, 2019, the Company sold all the assets of one of its subsidiaries, Patient Home Monitoring, Inc. The consolidated financial statements and the notes reflect the Patient Home Monitoring, Inc. as discontinued operations. Prior period amounts have been reclassified in order to be comparable to the current period presentation.
Share consolidation
Effective December 31, 2018, the Company consolidated its common shares on the basis of one (1) new post-consolidation common share for every five (5) pre-consolidation common shares. The consolidation will affect shareholders uniformly, including holders of outstanding incentive stock options, warrants and other securities convertible into exercisable for common shares on the effective date.
Going concern
These consolidated financial statements have been prepared on a going concern basis. The application of the going concern basis of presentation assumes that the Company will continue its operations for the foreseeable future and be able to realize its assets and discharge its liabilities and commitments in the normal course of operation. If this assumption was not appropriate, adjustments to these condensed consolidated financial statements may be necessary.
COVID-19 Pandemic
On March 11, 2020, the World Health Organization declared the outbreak of a novel strain of coronavirus (“COVID-19”) a global pandemic. In response to the outbreak, governmental authorities in the United States and internationally have introduced various recommendations and measures to try to limit the pandemic, including travel restrictions, border closures, non-essential business closures, quarantines, self-isolations, shelters-in-place, and social distancing. The COVID-19 outbreak and the response of governmental authorities to try to limit it are having a significant impact on the private sector and individuals, including unprecedented business, employment, and economic disruptions.
Although the Company has taken steps to mitigate the impact of COVID-19, the continued presence and spread of COVID-19 nationally and globally could have a material adverse impact on the Company’s business, operations, and financial results and position, including through employee attrition, disruptions to the Company’s supply chains and sales channels, restrictions of operations at our retail stores, changes in the number of Americans with health insurance resulting in a change in demand for the Company’s products, as well as a deterioration of general economic conditions including a possible national or global recession. Due to the speed with which the COVID-19 situation is developing and the uncertainty of its magnitude, outcome, and duration, it is not possible to estimate its impact on the Company’s business, operations, financial results and position or prospects at this time.
The Company continues to monitor the situation and work with its stakeholders (including customers, employees, and suppliers) in order to assess further possible implications to its business, supply chain, and customers, and, where practicable, mitigate adverse consequences and responsibly address this global pandemic.
Page | 7
PROTECH HOME MEDICAL CORP.
NOTES TO THE AMENDED AND RESTATED CONDENSED CONSOLIDATED
INTERIM FINANCIAL STATEMENTS
(UNAUDITED)
(Tabular dollar amounts expressed in thousands of Canadian Dollars, except per share amounts)
The actual and threatened spread of COVID-19 globally could adversely affect global economies and financial markets, resulting in a prolonged economic downturn. The extent to which COVID-19 (or any other disease, epidemic, or pandemic) impacts business activity or financial results, and the duration of any such negative impact, will depend on future developments, which are highly uncertain and cannot be predicted, including new information which may emerge concerning COVID-19 and the actions required to contain or treat its impact, among others.
2. | Summary of significant accounting policies |
Unreserved statement of compliance
These unaudited condensed consolidated interim financial statements have been prepared in accordance with International Accounting Standard (IAS) 34, Interim Financial Reporting using accounting policies consistent with International Financial Reporting Standards (IFRS) as issued by the International Accounting Standards Board. These condensed consolidated interim financial statements do not include all the disclosures required in annual consolidated financial statements and should be read in conjunction with the Company’s audited consolidated financial statements for the years ended September 30, 2019 and 2018.
Except as noted below, the Company has followed the same basis of presentation, accounting policies and method of computation for these condensed consolidated interim financial statements as disclosed in the annual audited consolidated financial statements for the years ended September 30, 2019 and 2018.
The unaudited condensed consolidated interim financial statements were approved and authorized for issuance by the Board of Directors on June 24, 2020.
These unaudited condensed consolidated interim financial statements, which are presented in Canadian dollars, have been prepared under the historical cost convention, as modified by the measurement at fair values of certain financial assets and financial liabilities.
New standards and interpretations adopted
IFRS 16, Leases
Effective October 1, 2019, the Company adopted IFRS 16, Leases. IFRS 16 eliminates the distinction between operating and finance leases from the perspective of the lessee. All contracts that meet the definition of a lease will be recorded in the statement of financial position with a “right of use” asset and a corresponding liability at the present value of the future lease payments using the lessee’s incremental borrowing rate of 8%.
The Company elected to adopt IFRS 16 using the modified retrospective approach. Under this approach, the Company will not restate its comparative figures, but will recognize the cumulative effect of adopting IFRS 16 as an adjustment to opening statement of financial position, with the recognition of $3,456,000 of right of use assets and finance lease obligations on October 1, 2019. On the condensed consolidated statement of income, the impact of the adoption of IFRS 16 is to increase depreciation expense and interest expense, and decrease selling, general, and administrative expenses.
The Company elected to apply the practical expedient to exclude recognition of right of use assets and lease liabilities for real estate, computer equipment, and office furniture leases under 12 months in duration or for which the lease term ends within 12 months of initial application for leases, and for low-value assets. The Company also elected to apply IFRS 16 only to the contracts that were previously identified as leases. Contracts that were not identified as leases under IAS 17 Leases will not be reassessed for whether a lease exists. Lease expenses for short-term leases totaled $132,000 and $274,000 for the three and six months ended March 31, 2020.
Page | 8
PROTECH HOME MEDICAL CORP.
NOTES TO THE AMENDED AND RESTATED CONDENSED CONSOLIDATED
INTERIM FINANCIAL STATEMENTS
(UNAUDITED)
(Tabular dollar amounts expressed in thousands of Canadian Dollars, except per share amounts)
As of October 1, 2019, approximately $19,398,000 of monitoring equipment and $2,457,000 of vehicles were under lease liabilities.
Functional currency
The consolidated financial statements of the Company are presented in Canadian dollars, which is the parent Company’s presentation currency but which differs from its functional currency, the US Dollar, which was determined using management’s judgment that the primary economic environment in which it will derive its revenue and expenses incurred to generate those revenues is the United States. Management has exercised judgment in selecting the functional currency of each of the entities that it consolidates based on the primary economic environment in which the entity operates and in reference to the various indicators including the currency that primarily influences or determines the selling prices of goods and services and the cost of production, including labor, material and other costs and the currency whose competitive forces and regulations mainly determine selling prices.
Business combinations
In accordance with IFRS 3 – Business Combination (“IFRS 3”), a transaction is recorded as a business combination if the significant assets, liabilities, or activities in addition to property and related mortgage debt assumed constitute a business. A business is defined as an integrated set of activities and assets, capable of being conducted and managed for the purpose of providing a return, lower costs, or other economic benefits. Where there are no such integrated activities, the transaction is treated as an asset acquisition. The estimation of the fair value of the assets and liabilities acquired in an acquisition is subject to judgement concerning estimating market values and predicting future events. These values are uncertain and can materially impact the carrying value of the acquired assets and the amount allocated to goodwill.
Recognition and initial measurement
The Company recognizes financial assets when it becomes party to the contractual provisions of the instrument. Financial assets are measured initially at their fair value plus, in the case of financial assets not subsequently measured at fair value through profit or loss, transaction costs that are directly attributable to their acquisition. Transaction costs attributable to the acquisition of financial assets subsequently measured at fair value through profit or loss are expensed in the consolidated statement of income (loss) and comprehensive income (loss) when incurred.
3. | Acquisition of businesses and purchase accounting |
Acquisition of Cooley Medical Equipment, Inc. (Cooley)
Effective October 1, 2019, the Company, through one of its indirect wholly owned subsidiaries, entered into a purchase agreement to acquire the shares of Cooley Medical Equipment, Inc. (Cooley), a Kentucky company in the same industry as the Company. The purchase price was $3,321,000, of which $3,089,000 was paid in cash at closing, and the balance of $232,000 to be paid on the 18-month anniversary of the acquisition. The Company has determined that the transaction is an acquisition of a business under IFRS 3 and it has been accounted for by applying the acquisition method. The Company expensed $51,000 of legal expenses in conjunction with the acquisition.
The acquired business contributed revenue of $5,014,000 and net income of $552,000 from October 1, 2019 to March 31, 2020.
The fair value of the acquired assets is provisional pending final valuations of the assets and is as follows:
Cash | $ | 106 | ||
Accounts receivable | 801 | |||
Inventory | 818 | |||
Prepaid assets | 55 | |||
Property and equipment | 2,859 | |||
Goodwill | 1,794 | |||
Accounts payable and accrued liabilities | (1,477 | ) | ||
Lease liabilities | (1,635 | ) | ||
Net assets acquired | $ | 3,321 | ||
Cash paid at closing | $ | 3,089 | ||
Cash to be paid after closing | 232 | |||
Consideration paid or payable | $ | 3,321 |
Page | 9
PROTECH HOME MEDICAL CORP.
NOTES TO THE AMENDED AND RESTATED CONDENSED CONSOLIDATED
INTERIM FINANCIAL STATEMENTS
(UNAUDITED)
(Tabular dollar amounts expressed in thousands of Canadian Dollars, except per share amounts)
Acquisition of Acadia Medical Supply, Inc. (Acadia)
Effective December 1, 2019, the Company, through one of its indirect wholly owned subsidiaries, entered into a purchase agreement to acquire the shares of Acadia Medical Supply, Inc. (Acadia), a Maine company in the same industry as the Company. The purchase price was $1,861,000, of which $1,334,000 was paid in cash at closing, and the balance of $527,000 to be paid on the one- and two-year anniversaries of the acquisition. The Company has determined that the transaction is an acquisition of a business under IFRS 3 and it has been accounted for by applying the acquisition method. The Company expensed $29,000 of legal expenses in conjunction with the acquisition.
Pro forma six-month revenues and net income for Acadia for the period October 1, 2019 through March 31, 2020 $2,200,000 and $200,000, respectively.
The fair value of the acquired assets is provisional pending final valuations of the assets and is as follows:
Cash | $ | 79 | ||
Accounts receivable | 139 | |||
Inventory | 350 | |||
Property and equipment | 330 | |||
Other assets | 10 | |||
Goodwill | 1,694 | |||
Accounts payable and accrued liabilities | (368 | ) | ||
Lease liabilities | (373 | ) | ||
Net assets acquired | $ | 1,861 | ||
Cash paid at closing | $ | 1,334 | ||
Cash to be paid after closing | 527 | |||
Consideration paid or payable | $ | 1,861 |
Prior Periods
During the six months ended March 31, 2019, the Company acquired two businesses. The details of these acquisitions were disclosed in Note 7 of the Company’s annual financial statements for the year ended September 30, 2019.
4. | Inventory |
As at March 31, | As at September 30, | |||||||
2020 | 2019 | |||||||
Serialized | $ | 2,324 | $ | 1,038 | ||||
Non-serialized | 5,484 | 3,700 | ||||||
Total inventory | $ | 7,808 | $ | 4,738 |
5. | Property and equipment and right of use assets |
Property and equipment and right of use assets are stated at cost less accumulated depreciation. Major renewals and improvements are charged to the property accounts, while maintenance, and repairs which do not extend the useful life of the respective assets, are expensed as incurred. Depreciation is computed using the straight-line method over the estimated useful lives of the respective assets.
Page | 10
PROTECH HOME MEDICAL CORP.
NOTES TO THE AMENDED AND RESTATED CONDENSED CONSOLIDATED
INTERIM FINANCIAL STATEMENTS
(UNAUDITED)
(Tabular dollar amounts expressed in thousands of Canadian Dollars, except per share amounts)
The estimated useful lives of the assets are as follows:
Description | Estimated Useful Life | |
Monitoring equipment | 1-5 years | |
Computer equipment | 3-5 years | |
Vehicles | 3-5 years | |
Office furniture and fixtures | 5-10 years | |
Leasehold improvements and right of use real estate leases | Life of Lease (13 months to 43 months) |
Depreciation of monitoring equipment commences once it has been deployed to a patient’s address and put in use. Property and equipment and other non-current assets with definite useful lives are tested for impairment whenever events or changes in circumstances indicate that their carrying amount may not be recoverable.
Cost |
Monitoring
equipment |
Computer
equipment |
Office
furniture and fixtures |
Leasehold
improvements |
Vehicles |
Right of
use assets – Real estate |
Total | |||||||||||||||||||||
Balance September 30, 2019 | $ | 35,377 | $ | 668 | $ | 574 | $ | 1,548 | $ | 3,426 | $ | - | $ | 41,593 | ||||||||||||||
Additions – adoption of IFRS 16 | - | - | - | - | - | 3,456 | 3,456 | |||||||||||||||||||||
Additions | 5,990 | 4 | - | 43 | 681 | 897 | 7,615 | |||||||||||||||||||||
Acquisitions | 1,770 | - | - | 306 | 95 | 1,018 | 3,189 | |||||||||||||||||||||
Disposals | (10,409 | ) | (57 | ) | (92 | ) | (197 | ) | (624 | ) | - | (11,379 | ) | |||||||||||||||
Foreign exchange | 2,088 | 49 | 41 | 231 | 349 | 367 | 3,125 | |||||||||||||||||||||
Balance March 31, 2020 | $ | 34,816 | $ | 664 | $ | 523 | $ | 1,931 | $ | 3,927 | $ | 5,738 | $ | 47,599 |
Accumulated Depreciation |
Monitoring
equipment |
Computer
equipment |
Office
furniture and fixtures |
Leasehold
improvements |
Vehicles |
Right of
use assets – Real estate |
Total | |||||||||||||||||||||
Balance September 30, 2019 | $ | 19,557 | $ | 491 | $ | 344 | $ | 340 | $ | 1,365 | $ | - | $ | 22,097 | ||||||||||||||
Depreciation | 7,539 | 67 | 52 | 100 | 416 | 872 | 9,046 | |||||||||||||||||||||
Disposals | (10,409 | ) | (57 | ) | (92 | ) | (197 | ) | (544 | ) | - | (11,299 | ) | |||||||||||||||
Foreign exchange | 1,289 | 38 | 27 | 126 | 193 | 58 | 1,731 | |||||||||||||||||||||
Balance March 31, 2020 | $ | 17,976 | $ | 539 | $ | 331 | $ | 369 | $ | 1,430 | $ | 930 | $ | 21,575 |
Net Book Value |
Monitoring
equipment |
Computer
equipment |
Office
furniture and fixtures |
Leasehold
improvements |
Vehicles |
Right of
use assets – Real estate |
Total | |||||||||||||||||||||
Balance September 30, 2019 | $ | 15,820 | $ | 177 | $ | 230 | $ | 1,208 | $ | 2,061 | $ | - | $ | 19,496 | ||||||||||||||
Balance March 31, 2020 | $ | 17,090 | $ | 125 | $ | 192 | $ | 1,562 | $ | 2,497 | $ | 4,808 | $ | 26,024 |
Included in the cost of monitoring equipment are right of use assets $19,398,000 as of September 30, 2019 and $20,452,000 as of March 31, 2020. Included in the cost of vehicles are right of use assets $2,457,000 as of September 30, 2019 and $2,962,000 as of March 31, 2020.
6. | Goodwill and intangible assets |
The Company has recorded various intangible assets consisting primarily of non-compete agreements, trademarks, customer contracts and customer relationships. Non-compete agreements are the value associated with the non-compete agreements entered by the sellers of purchased companies. Trademarks are the purchase price allocation for the value associated with the trade name of the acquired company. Customer contracts are comprised of the purchase price allocation of the present value of expected future customer billings based on the statistical life of a customer. Customer relationships are the value given in the purchase price allocation to the long-term associations with referral sources such as doctors, medical centers, etc. Finite life intangible assets are amortized on a straight-line basis over the estimated useful lives of the related assets as follows:
Page | 11
PROTECH HOME MEDICAL CORP.
NOTES TO THE AMENDED AND RESTATED CONDENSED CONSOLIDATED
INTERIM FINANCIAL STATEMENTS
(UNAUDITED)
(Tabular dollar amounts expressed in thousands of Canadian Dollars, except per share amounts)
Description | Estimated Useful Life |
Non-compete agreements | 5 Years |
Trademarks | 10 Years |
Customer contracts | 2 Years |
Customer relationships | 10 Years |
Gains or losses arising from de-recognition of an intangible asset are measured as the difference between the net disposal proceeds and the carrying amount of the asset and are recognized in the Statements of Net Loss and Comprehensive Loss when the asset is derecognized.
The Company reviews the estimates for useful lives on an annual basis, or more frequently if events during the period indicate that a change may be required, with consideration given to technological obsolescence and other relevant business factors. A change in management’s estimate could impact depreciation/amortization expense and the carrying value of property and equipment and intangible assets.
Cost | Goodwill |
Non-
compete agreements |
Brand |
Customer
contracts |
Customer
relationships |
Sub-total
intangibles with finite lives |
Total | |||||||||||||||||||||
Balance September 30, 2019 | $ | 1,881 | $ | 684 | $ | 1,776 | $ | 5,099 | $ | 11,204 | $ | 18,763 | $ | 20,644 | ||||||||||||||
Acquisitions | 3,488 | - | - | - | - | - | 3,488 | |||||||||||||||||||||
Effects of changes in exchange rates | 375 | 49 | 127 | 363 | 799 | 1,338 | 1,713 | |||||||||||||||||||||
Balance March 31, 2020 | $ | 5,744 | $ | 733 | $ | 1,903 | $ | 5,462 | $ | 12,003 | $ | 20,101 | $ | 25,845 |
Accumulation amortization | Goodwill |
Non-
compete agreements |
Brand |
Customer
contracts |
Customer
relationships |
Sub-total
intangibles with finite lives |
Total | |||||||||||||||||||||
Balance September 30, 2019 | $ | - | $ | 636 | $ | 1,176 | $ | 4,937 | $ | 9,103 | $ | 15,852 | $ | 15,852 | ||||||||||||||
Amortization | - | 22 | 53 | 114 | 217 | 406 | 406 | |||||||||||||||||||||
Effect of changes in exchange rates | - | 48 | 87 | 360 | 663 | 1,158 | 1,158 | |||||||||||||||||||||
Balance March 31, 2020 | - | $ | 706 | $ | 1,316 | $ | 5,411 | $ | 9,983 | $ | 17,416 | $ | 17,416 |
Net carrying amount | Goodwill |
Non-compete
agreements |
Brand |
Customer
contracts |
Customer
relationships |
Sub-total
intangibles with finite lives |
Total | |||||||||||||||||||||
Balance September 30, 2019 | $ | 1,881 | $ | 48 | $ | 600 | $ | 162 | $ | 2,101 | $ | 2,911 | $ | 4,792 | ||||||||||||||
Balance March 31, 2020 | $ | 5,744 | $ | 27 | $ | 587 | $ | 51 | $ | 2,020 | $ | 2,685 | $ | 8,429 | ||||||||||||||
7. | Debentures and lease liabilities |
Debentures
On March 7, 2019, the Company issued $15,000,000 in 8.0% Convertible Unsecured Debentures due March 7, 2024, with interest payable semi-annually on June 30th and December 30th of each year. Each $1,000 debenture is convertible at the option of the holder into approximately 769.23 common shares. After three years, the Company can force conversion of the outstanding principal at conversion price of $1.30, if the daily volume weighted average price of the common shares exceeds $1.62/share for twenty consecutive trading days. The debenture agreement also allows for payment of cash in lieu of common shares upon exercise of conversion right by the holder, equivalent of the market price on the conversion date.
The debentures contain multiple embedded derivatives including conversion right, forced conversion option and payment in lieu of common shares. Since the Company is unable to measure the fair value of embedded derivatives reliably, it has chosen to designate the convertible debentures in their entirety (including conversion right, forced conversion option and payment in lieu of common shares) to be subsequently measured at fair value through profit or loss (FVTPL).
Page | 12
PROTECH HOME MEDICAL CORP.
NOTES TO THE AMENDED AND RESTATED CONDENSED CONSOLIDATED
INTERIM FINANCIAL STATEMENTS
(UNAUDITED)
(Tabular dollar amounts expressed in thousands of Canadian Dollars, except per share amounts)
The debentures are valued at fair value using the current trading price, with the gain in fair market value of $2,549,000 and $1,814,000 has been recorded in the statement of income (loss) and other comprehensive (loss) income for the three and six months ended March 31, 2020, respectively.
During 2014, the Company issued $8,625,000 in unsecured subordinated debentures due December 31, 2019. The debentures were repaid in April 2019 for $8,970,000, including a prepayment premium.
Leases Liabilities
Below is the movement in lease liabilities for the six months ended March 31, 2020:
Monitoring
Equipment |
Vehicles |
Right of use
assets – real estate |
Total | |||||||||||||
Balance, September 30, 2019 | $ | 9,675 | $ | 1,934 | $ | - | $ | 11,609 | ||||||||
Additions during the period: | ||||||||||||||||
Adoption of IFRS 16, Leases | - | - | 3,456 | 3,456 | ||||||||||||
Acquisitions | 1,165 | 87 | 1,018 | 2,270 | ||||||||||||
Operations | 5,798 | 675 | 897 | 7,370 | ||||||||||||
Repayments | (7,886 | ) | (424 | ) | (762 | ) | (9,072 | ) | ||||||||
Effect of changes in exchange rates | 487 | 162 | 318 | 967 | ||||||||||||
Balance, March 31, 2020 | $ | 9,239 | $ | 2,434 | $ | 4,927 | $ | 16,600 |
Additions during the period are comprised of monitoring equipment and vehicles at incremental borrowing rates between 6% and 7.5% with final maturities through 2024, and real estate at the incremental borrowing rate of 8% with final maturities through 2024.
Future payments pursuant to lease liabilities are as follows:
As at
March 31, 2020 |
As at
September 30, 2019 |
|||||||
Less than 1 year | $ | 11,245 | $ | 8,528 | ||||
Between 1 and 5 years | 7,434 | 3,755 | ||||||
More than five years | - | - | ||||||
Total | $ | 18,679 | $ | 12,283 |
Below is the reconciliation of total future minimum lease payments and its present value at the end of the reporting period:
As at
March 31, 2019 |
As at
September 30, 2019 |
|||||||
Gross lease payments | $ | 18,679 | $ | 12,283 | ||||
Less: finance charges | (2,079 | ) | (674 | ) | ||||
Net lease liabilities | $ | 16,600 | $ | 11,609 |
Page | 13
PROTECH HOME MEDICAL CORP.
NOTES TO THE AMENDED AND RESTATED CONDENSED CONSOLIDATED
INTERIM FINANCIAL STATEMENTS
(UNAUDITED)
(Tabular dollar amounts expressed in thousands of Canadian Dollars, except per share amounts)
8. | Share capital |
Bought deal and private placement
On November 2, 2018, the Company completed a bought deal offering of 5,649,600 common shares of the Company at a price of $0.60 per share for gross proceeds to the Company of $3,390,000. Along with this bought deal, the Company also completed a previously announced non-brokered private placement of 1,833,333 common shares to officers and directors at the $0.60 issue price for gross proceeds to the Company of $1,100,000. Issuance costs of $343,000 in cash were incurred. The Company also issued to the underwriter compensation options equal to 6.5% of the offered shares (367,224). Each compensation option is exercisable into one common share of the Company at the issue price for a period of 24 months from the closing of the offering. These shares are recorded as compensation options at $0.60 per share. The fair value of the options has been properly valued using the Black-Scholes option pricing model.
Options
The Company has a stock option plan, which it uses for grants to directors, officers, employees, and consultants. Options granted under the plan are non-assignable and may be granted for a term not exceeding ten years. Stock options generally vest either immediately or quarterly over a two-year period.
A summary of stock options is provided below:
Number of options
(000’s) |
Weighted
average exercise price |
|||||||
Balance September 30, 2019 | 11,759 | $ | 0.52 | |||||
Granted | 100 | 1.10 | ||||||
Exercised | (96 | ) | 0.38 | |||||
Canceled | (176 | ) | 0.89 | |||||
Balance March 31, 2020 | 11,587 | $ | 0.50 |
At March 31, 2020, the Company had 11,353,742 vested, exercisable stock options with a weighted average exercise price of $0.48.
Stock-based compensation
The Company accounts for stock-based compensation, including stock options, using the fair value method as prescribed by IFRS 2. Under this method, the fair value of stock options at the date of grant is expensed over the vesting period and the offsetting credit is recorded as an increase in contributed surplus.
For the three months ended March 31, 2020 and 2019, the Company recorded stock-based compensation expense of $92,000 and $361,000, respectively.
For the six months ended March 31, 2020 and 2019, the Company recorded stock-based compensation expense of $134,000 and $891,000, respectively.
The fair value of the stock options has been charged to the statement of loss and comprehensive loss and credited to contributed surplus over the proper vesting period, using the Black-Scholes option pricing model calculated using the following assumptions:
Six months ended | Six months ended | |||||||
March 31, 2020 | March 31, 2019 | |||||||
Grant price per share | $ | 1.10 | $ | 0.63 | ||||
Risk-free interest rate | 1.64 | % | 2.24 | % | ||||
Expected volatility | 83.20 | % | 118.17 | % | ||||
Expected life of option | 4 years | 10 years | ||||||
Expected dividend yield | Nil | Nil |
Page | 14
PROTECH HOME MEDICAL CORP.
NOTES TO THE AMENDED AND RESTATED CONDENSED CONSOLIDATED
INTERIM FINANCIAL STATEMENTS
(UNAUDITED)
(Tabular dollar amounts expressed in thousands of Canadian Dollars, except per share amounts)
9. | Contingencies |
From time to time, the Company is involved in various legal proceedings arising from the ordinary course of business, None of the matters in which the Company is currently involved, either individually, or in the aggregate, is expected to have a material adverse effect on the Company’s consolidated financial position, results of operations, or cash flows.
10. | Expenses By Nature |
Three months ended
March 31, 2020 |
Three months ended
March 31, 2019 |
Six months ended
March 31, 2020 |
Six months ended
March 31, 2019 |
|||||||||||||
Included in cost of revenue | ||||||||||||||||
Inventory expensed | $ | 6,502 | $ | 6,082 | $ | 12,531 | $ | 12,312 | ||||||||
Total cost of revenue | $ | 6,502 | $ | 6,082 | $ | 12,531 | $ | 12,312 | ||||||||
Included in selling, general, and administrative | ||||||||||||||||
Payroll and employee benefits | $ | 7,731 | $ | 6,452 | $ | 15,411 | $ | 12,893 | ||||||||
Facilities related expenses | 673 | 803 | 1,346 | 1,708 | ||||||||||||
Bad debt expense | 2,130 | 1,549 | 4,114 | 2,892 | ||||||||||||
Billing | 516 | 437 | 951 | 850 | ||||||||||||
Auto expense | 408 | 273 | 838 | 631 | ||||||||||||
Professional fees | 380 | 480 | 761 | 816 | ||||||||||||
Utilities | 148 | 121 | 299 | 246 | ||||||||||||
Marketing and advertising | 187 | 141 | 407 | 303 | ||||||||||||
Other | 567 | 524 | 1,165 | 984 | ||||||||||||
Total selling, general, and administrative | $ | 12,740 | $ | 10,780 | $ | 25,292 | $ | 21,323 |
11. | Income (Loss) per share |
Income (loss) per common share is calculated using the weighted average number of common shares outstanding during the period. Diluted income (loss) per share amounts are calculated giving effect to the potential dilution that would occur if securities or other contracts to issue common shares were exercised or converted to common shares by assuming the proceeds received from the exercise of stock options and warrants are used to purchase common shares at the prevailing market rate. There is no impact on diluted income (loss) per share because it is antidilutive. For the purpose of income (loss) per common share calculations, the exchangeable Class A common shares of a subsidiary are treated as though they were exchanged.
Income (loss) per share is based on the consolidated income (loss) for the period divided by the weighted average number of shares outstanding during the period. Diluted income (loss) per share is computed in accordance with the treasury stock method and based on the weighted average number of shares and dilutive share equivalents.
The following reflects the earnings and share data used in the basic and diluted income (loss) per share computations:
Three months
ended March 31, 2020 |
Three months
ended March 31, 2019 |
Six months
ended March 31, 2020 |
Six months
ended March 31, 2019 |
|||||||||||||
Net income (loss) for continuing operations | $ | 2,056 | $ | (591 | ) | $ | 299 | $ | (977 | ) | ||||||
Net income (loss) for discontinued operations | (416 | ) | 61 | (416 | ) | 582 | ||||||||||
Basic weighted average number of shares | 83,567 | 83,530 | 83,623 | 82,176 | ||||||||||||
Diluted weighted average number of shares | 88,496 | 83,530 | 83,623 | 82,176 | ||||||||||||
Basic – continuing operations | $ | 0.02 | $ | (0.01 | ) | $ | 0.00 | $ | (0.01 | ) | ||||||
Diluted – continuing operations | $ | 0.02 | $ | (0.01 | ) | $ | 0.00 | $ | (0.01 | ) | ||||||
Basic – discontinuing operations | $ | (0.00 | ) | $ | 0.00 | $ | (0.00 | ) | $ | 0.01 | ||||||
Diluted - discontinuing operations | $ | (0.00 | ) | $ | 0.00 | $ | (0.00 | ) | $ | 0.01 |
The outstanding stock options for the periods with a net loss were excluded from the calculation of diluted loss per share because their effect is anti-dilutive.
Page | 15
PROTECH HOME MEDICAL CORP.
NOTES TO THE AMENDED AND RESTATED CONDENSED CONSOLIDATED
INTERIM FINANCIAL STATEMENTS
(UNAUDITED)
(Tabular dollar amounts expressed in thousands of Canadian Dollars, except per share amounts)
12. | Related party transactions |
The Company has entered into six market rate leases for office, warehouse, and retail space with a rental Company affiliated with the Company’s Chief Executive Officer, the majority of which were entered into in 2015. The leases have a combined area of 74,520 square feet. Lease payments under these leases are approximately $68,000 per month, plus taxes, utilities and maintenance.
Payments of $57,000 and $56,000 were made to the members of the Board of Directors for the three months ended March 31, 2020 and 2019, respectively. Payments of $124,000 and $113,000 were made to members of the Board of Directors for the six months ended March 31, 2020 and 2019, respectively.
Key management personnel also participate in the Company’s share option program (see Note 8). The Company paid or accrued compensation to key management personnel the following:
Three months
ended March 31, 2020 |
Three months
ended March 31, 2019 |
Six months
ended March 31, 2020 |
Six months
ended March 31, 2019 |
|||||||||||||
Salaries and Benefits | $ | 264 | $ | 766 | $ | 523 | $ | 1,009 | ||||||||
Stock-based compensation | - | 229 | - | 562 | ||||||||||||
Total | $ | 264 | $ | 995 | $ | 523 | $ | 1,571 |
13. | Discontinued Operations |
On July 29, 2019, the Company sold the assets of Patient Home Monitoring, Inc. The consolidated financial statements and the notes reflect the Patient Home Monitoring, Inc. as discontinued operations. There are ongoing litigation matters involving Patient Home Monitoring, Inc. During the three and six months ended March 31, 2020, the Company incurred legal fees to defend itself, and in one of the matters, reached a settlement. The second matter remains unresolved. These matters are directly related to the operations of the disposed business, and as such, are reflected as discontinued operations. Prior period amounts have been reclassified in order to be comparable to the current year presentation, as follows:
Three months
ended March 31, 2020 |
Three months
ended March 31, 2019 |
Six months
ended March 31, 2020 |
Six months
ended March 31, 2019 |
|||||||||||||
Revenue | $ | - | $ | 1,088 | $ | - | $ | 2,280 | ||||||||
Cost of revenue | - | 272 | - | 180 | ||||||||||||
Gross margin | $ | - | $ | 816 | $ | - | $ | 2,100 | ||||||||
Expenses: | ||||||||||||||||
Selling, general and administrative | 416 | 624 | 416 | 1,286 | ||||||||||||
Depreciation | - | 131 | - | 232 | ||||||||||||
Net income (loss) from discontinued operations | $ | (416 | ) | $ | 61 | $ | (416 | ) | $ | 582 |
14. Subsequent Events
CARES Act
Subsequent to period end, the Company received over $7,500,000 of payments related to the two separate provisions of the U.S. Coronavirus Aid, Relief and Economic Security (CARES) Act. One provision was to assist companies in maintaining their workforce and the second provision was to support healthcare providers.
Page | 16
PROTECH HOME MEDICAL CORP.
NOTES TO THE AMENDED AND RESTATED CONDENSED CONSOLIDATED
INTERIM FINANCIAL STATEMENTS
(UNAUDITED)
(Tabular dollar amounts expressed in thousands of Canadian Dollars, except per share amounts)
Offering of Units
The Company has filed a preliminary prospectus in connection with a public offering of 21,740.000 units at a price of $1.15 per unit. In addition, the Company anticipates completing a concurrent brokered private placement and a non-brokered private placement to the Company’s Chief Executive Officer and a director of the Company, for 1,750,000 and 927,826 units, respectively.
Each unit issued in connection with the Concurrent Private Placements will be sold at a price of $1.15 and will consist of one common share of the Company and one-half of one common share purchase warrant of the Company (each whole warrant, a “Warrant”). Each Warrant will be exercisable to acquire one common share for a period of 12 months following the closing of the Concurrent Private Placements at an exercise price of $1.60 per share. While closing of the concurrent private placements is conditional upon the closing of the public offering, the closing of the public offering is not conditional upon the closing of the concurrent private placements.
The Company intends to use the proceeds for working capital and general corporate purposes. The Offering and Concurrent Private Placements are expected to close in June 2020 and are subject to certain closing conditions.
15. | Correction of Prior Period |
The Company has restated its balance sheet for the current and long-term portions of its lease liabilities. This correction is noted in the Adjustments column below.
Line items corrected on the amended and restated condensed consolidated statement of financial position as of March 31, 2020 are as follows:
Previously
Reported |
Corrections | As Restated | ||||||||||
Current portion of lease liabilities | $ | 8,873 | $ | 1,633 | $ | 10,506 | ||||||
Total current liabilities | 23,371 | 1,633 | 25,004 | |||||||||
Lease liabilities | 7,727 | (1,633 | ) | 6,094 | ||||||||
Total long-term liabilities | 20,117 | (1,633 | ) | 18,484 |
Line items corrected on the net assets acquired of Cooley are as follows:
Previously
Reported |
Corrections | As Restated | ||||||||||
Accounts payable and accrued liabilities | $ | (1,709 | ) | $ | 232 | $ | (1,477 | ) | ||||
Net assets acquired | 3,089 | 232 | 3,321 | |||||||||
Consideration to be paid after closing | - | 232 | 232 |
Line items corrected on the net assets acquired of Acadia are as follows:
Previously
Reported |
Corrections | As Restated | ||||||||||
Accounts payable and accrued liabilities | $ | (895 | ) | $ | 527 | $ | (368 | ) | ||||
Lease liabilities | (636 | ) | 263 | (373 | ) | |||||||
Net assets acquired | 1,071 | 890 | 1,861 | |||||||||
Cash paid at closing | 1,071 | 263 | 1,334 | |||||||||
Consideration to be paid after closing | - | 527 | 527 |
The correction of the error did not result in any changes to the Company’s condensed consolidated statement of income (loss) and comprehensive income (loss), condensed consolidated statement of changes in equity, or the condensed consolidated statement of cash flows for the periods presented.
Page | 17
Exhibit 99.42
FORM 52-109F2R
CERTIFICATION OF REFILED INTERIM FILINGS
This certificate is being filed on the same date Protech Home Medical Corp. has refiled its interim financial statements and interim MD&A for the interim period ended March 31, 2020.
I, Gregory Crawford, the Chief Executive Officer of Protech Home Medical Corp. (the “issuer”), certify the following:
1. | Review: I have reviewed the interim financial report and interim MD&A (together, the “interim filings”) of the issuer for the interim period ended March 31, 2020. |
2. | No misrepresentations: Based on my knowledge, having exercised reasonable diligence, the interim filings do not contain any untrue statement of a material fact or omit to state a material fact required to be stated or that is necessary to make a statement not misleading in light of the circumstances under which it was made, for the period covered by the interim filings. |
3. | Fair presentation: Based on my knowledge, having exercised reasonable diligence, the interim financial report together with the other financial information included in the interim filings fairly present in all material respects the financial condition, financial performance and cash flows of the issuer, as of the date of and for the periods presented in the interim filings. |
Date: June 24, 2020
(signed) “Gregory Crawford” | |
Gregory Crawford | |
Chief Executive Officer |
NOTE TO READER
In contrast to the certificate required for non-venture issuers under National Instrument 52-109 Certification of Disclosure in Issuers’ Annual and Interim Filings (NI 52-109), this Venture Issuer Basic Certificate does not include representations relating to the establishment and maintenance of disclosure controls and procedures (DC&P) and internal control over financial reporting (ICFR), as defined in NI 52-109. In particular, the certifying officers filing this certificate are not making any representations relating to the establishment and maintenance of
i) | controls and other procedures designed to provide reasonable assurance that information required to be disclosed by the issuer in its annual filings, interim filings or other reports tiled or submitted under securities legislation is recorded, processed, summarized and reported within the time periods specified in securities legislation; and |
ii) | a process to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with the issuer’s GAAP. |
The issuer’s certifying officers are responsible for ensuring that processes are in place to provide them with sufficient knowledge to support the representations they are making in this certificate. Investors should be aware that inherent limitations on the ability of certifying officers of a venture issuer to design and implement on a cost effective basis DC&P and ICFR as defined in NI 52-109 may result in additional risks to the quality, reliability, transparency and timeliness of interim and annual filings and other reports provided under securities legislation.
Exhibit 99.43
FORM 52-109F2R
CERTIFICATION OF REFILED INTERIM FILINGS
This certificate is being filed on the same date Protech Home Medical Corp. has refiled its interim financial statements and interim MD&A for the interim period ended March 31, 2020.
I, Hardik Mehta, the Chief Financial Officer of Protech Home Medical Corp. (the “issuer”), certify the following:
1. | Review: I have reviewed the interim financial report and interim MD&A (together, the “interim filings”) of the issuer for the interim period ended March 31, 2020. |
2. | No misrepresentations: Based on my knowledge, having exercised reasonable diligence, the interim filings do not contain any untrue statement of a material fact or omit to state a material fact required to be stated or that is necessary to make a statement not misleading in light of the circumstances under which it was made, for the period covered by the interim filings. |
3. | Fair presentation: Based on my knowledge, having exercised reasonable diligence, the interim financial report together with the other financial information included in the interim filings fairly present in all material respects the financial condition, financial performance and cash flows of the issuer, as of the date of and for the periods presented in the interim filings. |
Date: June 24, 2020
(signed) “Hardik Mehta”
Hardik
Mehta
Chief Financial Officer
NOTE TO READER
In contrast to the certificate required for non-venture issuers under National Instrument 52-109 Certification of Disclosure in Issuers’ Annual and Interim Filings (NI 52-109), this Venture Issuer Basic Certificate does not include representations relating to the establishment and maintenance of disclosure controls and procedures (DC&P) and internal control over financial reporting (ICFR), as defined in NI 52-109. In particular, the certifying officers filing this certificate are not making any representations relating to the establishment and maintenance of
i) controls and other procedures designed to provide reasonable assurance that information required to be disclosed by the issuer in its annual filings, interim filings or other reports tiled or submitted under securities legislation is recorded, processed, summarized and reported within the time periods specified in securities legislation; and
ii) a process to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with the issuer’s GAAP.
The issuer’s certifying officers are responsible for ensuring that processes are in place to provide them with sufficient knowledge to support the representations they are making in this certificate. Investors should be aware that inherent limitations on the ability of certifying officers of a venture issuer to design and implement on a cost effective basis DC&P and ICFR as defined in NI 52-109 may result in additional risks to the quality, reliability, transparency and timeliness of interim and annual filings and other reports provided under securities legislation. |
Exhibit 99.44
No securities regulatory authority has expressed an opinion about these securities and it is an offence to claim otherwise. This short form prospectus constitutes a public offering of these securities only in those jurisdictions where they may be lawfully offered for sale and therein only by persons permitted to sell such securities.
The securities and underlying securities offered under this short form prospectus have not been and will not be registered under the United States Securities Act of 1933, as amended (the “U.S. Securities Act”), or any state securities laws, and may not be offered or sold to, or for the account or benefit of, persons in the United States of America, its territories and possessions, any state of the United States or the District of Columbia (collectively, the “United States”) or “U.S. persons” (as such term is defined in Regulation S under the U.S. Securities Act (“U.S. Persons”)) unless exemptions from the registration requirements of the U.S. Securities Act and applicable state securities laws are available. This short form prospectus does not constitute an offer to sell or a solicitation of an offer to buy any of the securities offered hereby in the United States or to, or for the account or benefit of, persons in the United States or U.S. Persons. See “Plan of Distribution”.
Information has been incorporated by reference in this short form prospectus from documents filed with securities commissions or similar authorities in each of British Columbia, Alberta and Ontario. Copies of the documents incorporated herein by reference may be obtained on request without charge from the Chief Financial Officer of Protech Home Medical Corp. at 1019 Town Drive, Wilder, Kentucky 41076, telephone (859) 878-2220, and are also available electronically at www.sedar.com.
SHORT FORM PROSPECTUS
New Issue |
|
June 24, 2020 |
PROTECH HOME MEDICAL CORP.
21,740,000 Units
$25,001,000
This short form prospectus (the “Prospectus”) qualifies the distribution (the “Offering”) of 21,740,000 units (the “Units”) of Protech Home Medical Corp. (“Protech” or the “Corporation”) at a price of $1.15 per Unit (the “Offering Price”) for aggregate gross proceeds of $25,001,000. Each Unit consists of one common share (each, a “Unit Share”) of the Corporation and one-half of one common share purchase warrant of the Corporation (each whole common share purchase warrant, a “Warrant”). Each Warrant will entitle the holder to purchase one common share of the Corporation (each, a “Warrant Share”) at a price of $1.60 at any time prior to 4:00 p.m. (Toronto time) on the date that is 12 months following the Closing Date (as defined below) in accordance with the terms of a warrant indenture (the “Warrant Indenture”) to be dated as of the Closing Date between the Corporation and Computershare Trust Company of Canada, as warrant agent (the “Warrant Agent”). The Units will be issued pursuant to an underwriting agreement (the “Underwriting Agreement”) dated June 8, 2020, between the Corporation, Beacon Securities Limited (“Beacon”), as sole bookrunner, Canaccord Genuity Corp. (together with Beacon, the “Co-Lead Underwriters”), Echelon Wealth Partners Inc., Stifel GMP, Industrial Alliance Securities Inc. and M Partners Inc. (together with the Co-Lead Underwriters, collectively, the “Underwriters”). The Offering Price and other terms of the Offering were determined by negotiation among the Corporation and Beacon. See “Plan of Distribution”.
The issued and outstanding common shares of the Corporation (the “Common Shares”) are listed and posted for trading on the TSX Venture Exchange (the “TSXV”) under the symbol “PTQ” and on the OTCQX® Best Market (“OTCQX”) under the symbol “PTQQF”. On June 1, 2020, the last full trading day prior to the announcement of the Offering, the closing price per Common Share on the TSXV was $1.23 and on the OTCQX was US$0.94. On June 24, 2020, the date on which this Prospectus was filed, the closing price per Common Share on the TSXV was $1.21 and on the OTCQX was US$0.91. The TSXV has conditionally approved the Offering and the listing of the Unit Shares, the Warrant Shares and the Broker Shares (as defined below), to be issued upon exercise of the Broker Warrants (as defined below), to be distributed under this Prospectus, on the TSXV. Listing is subject to the Corporation fulfilling all of the requirements of the TSXV. See “Plan of Distribution”.
There is currently no market through which the Warrants may be sold and purchasers may not be able to resell Warrants purchased under the Prospectus. This may affect the pricing of the Warrants in the secondary market, the transparency and availability of trading prices, the liquidity of the Warrants, and the extent of issuer regulation. See “Risk Factors”.
Price: $1.15 per Unit
Price to the Public(2) | Underwriters’ Fee(3) |
Net Proceeds
to the Corporation(4)(5)(6) |
||||||||||
Per Unit(1) | $ | 1.15 | $ | 0.06325 | $ | 1.08675 | ||||||
Total | $ | 25,001,000 | $ | 1,375,055 | $ | 23,625,945 |
(1) | The Offering Price was determined by arm’s length negotiation between the Co-Lead Underwriters, on behalf of the Underwriters, and the Corporation, with reference to the prevailing market price of the Common Shares on the TSXV. See “Plan of Distribution”. |
(2) | The Corporation intends to allocate $1.119 of the Offering Price as consideration for the issue of each Unit Share and $0.031 of the Offering Price as consideration for the issue of each one-half Warrant comprising each Unit. |
(3) | In consideration for the services rendered by the Underwriters in connection with the Offering, the Underwriters will be paid an aggregate cash fee (the “Underwriters’ Fee”) equal to 5.5% of the gross proceeds of the Offering (including any gross proceeds raised on exercise of the Over-Allotment Option (as defined below)). As additional consideration, the Corporation will grant the Underwriters broker warrants (the “Broker Warrants”) equal to 5.5% of the total number of Units sold under the Offering (including in respect of any exercise of the Over-Allotment Option). For clarity and notwithstanding the foregoing, no Broker Warrants will be issued in connection with any Warrants purchased individually, and not forming part of a Unit, in connection with the Over-Allotment Option. Each Broker Warrant will entitle the holder thereof to acquire one Common Share (a “Broker Share”) at a price of $1.15 at any time prior to 4:00 p.m. (Toronto time) on the date that is two years following the Closing Date. This Prospectus also qualifies the distribution of the Broker Warrants to the Underwriters (including in respect of any Broker Warrants issuable in respect of any exercise of the Over-Allotment Option). See “Plan of Distribution”. |
(4) | After deducting the Underwriters’ Fee, but before deducting expenses of the Offering, including in connection with the preparation and filing of this Prospectus, which are estimated to be $237,500, which will be paid from the gross proceeds of the Offering. |
(5) | The Corporation has granted the Underwriters an over-allotment option (the “Over-Allotment Option”), exercisable in whole or in part, at any time and from time to time, in the sole discretion of the Underwriters, for a period of 30 days from the closing of the Offering, to purchase up to an additional amount of Units equal to 15% of the Units sold pursuant to the Offering, being 3,261,000 Units (the “Over-Allotment Units”), at the Offering Price, to cover over-allotments, if any, and for market stabilization purposes. The Over-Allotment Option may be exercisable by the Underwriters in respect of: (i) Over-Allotment Units at the Offering Price; or (ii) additional Unit Shares (the “Over-Allotment Shares”) at a price of $1.119 per Over-Allotment Share; (iii) additional Warrants (the “Over-Allotment Warrants”) at a price of $0.062 per Over-Allotment Warrant; or (iv) any combination of Over-Allotment Units, Over-Allotment Shares and/or Over-Allotment Warrants (together, the “Over-Allotment Securities”), so long as the aggregate number of Over-Allotment Shares and Over-Allotment Warrants which may be issued under the Over-Allotment Option does not exceed 3,261,000 Over-Allotment Shares and 1,630,500 Over-Allotment Warrants. Unless the context otherwise requires, all references to “Units”, “Unit Shares” and “Warrants” in this Prospectus include reference to the Over-Allotment Units, Over-Allotment Unit Shares and Over-Allotment Warrants that may be issued pursuant to the exercise of the Over-Allotment Option. The grant of the Over-Allotment Option and the Over-Allotment Securities issuable upon exercise of the Over-Allotment Option is hereby qualified for distribution under this Prospectus. A purchaser who acquires Units issuable on the exercise of the Over-Allotment Option, forming part of the Underwriters’ over-allocation position, acquires such Units under this Prospectus regardless of whether the over-allocation position is ultimately filled through the exercise of the Over-Allotment Option or secondary market purchases. If the Over-Allotment Option is exercised in full, the total “Price to the Public”, “Underwriters’ Fee” and “Net Proceeds” to the Corporation (before payment of the expenses of the Offering) will be approximately $28,751,150, $1,581,313 and $27,169,837, respectively. See “Plan of Distribution”. |
(6) | If the Concurrent Private Placement (as defined herein) is completed but the Over-Allotment Option is not exercised, the aggregate net proceeds of the Offering and the Concurrent Private Placement will be $26,594,758, after deducting the Underwriters’ Fee of $1,375,055 and the Placement Fee of $110,687 (as defined herein) but before deducting the aggregate expenses of the Offering and the Concurrent Private Placement (estimated to be $237,500). If the Over-Allotment Option is exercised in full, then the aggregate net proceeds to the Corporation will be $30,138,650 after deducting the Underwriters’ Fee of $1,581,313 and the Placement Fee of $110,687 but before deducting the aggregate expenses of the Offering and the Concurrent Private Placement. See “Concurrent Private Placement”. |
Unless the context otherwise requires, when used herein, all references to the “Offering”, “Units”, “Unit Shares”, “Warrants”, “Warrant Shares”, “Broker Warrants” and “Broker Shares” assumes the exercise of the Over-Allotment Option and includes all securities issuable thereunder.
- 2 -
The following table sets out the number of Units or other compensation securities, if any, that have been issued or may be issued by the Corporation to the Underwriters:
Underwriters’
Position |
Maximum Size or Number
of Securities Available |
Exercise Period | Exercise Price | |||
Over-Allotment Option(1) | 3,261,000 Over-Allotment Units | Up to 30 days from closing of the Offering |
$1.15 per Over-Allotment Unit
$1.119 per Over-Allotment Share $0.062 per Over-Allotment Warrant |
|||
Broker Warrants(2)(3) | 1,375,055 Broker Warrants | Two years after the closing of the Offering | $1.15 per Broker Warrant |
(1) | This Prospectus qualifies the grant of the Over-Allotment Option and the distribution of all securities issuable thereunder. See “Plan of Distribution”. |
(2) | Assuming the Over-Allotment Option is exercised in full. |
(3) | This Prospectus qualifies the grant of the Broker Warrants (including in respect of any Broker Warrants issuable in respect of any exercise of the Over-Allotment Option). See “Plan of Distribution”. |
Investing in the Units is speculative and involves significant risks that should be carefully considered by prospective investors before purchasing such securities. The risks outlined in this Prospectus and in the documents incorporated by reference herein should be carefully reviewed and considered by prospective investors in connection with an investment in such securities. See “Risk Factors”.
The Underwriters, as principals, conditionally offer the Units, subject to prior sale, if, as and when issued by the Corporation and accepted by the Underwriters in accordance with the conditions contained in the Underwriting Agreement referred to under “Plan of Distribution” and subject to the approval of certain legal matters on behalf of the Corporation by DLA Piper (Canada) LLP and on behalf of the Underwriters by Bennett Jones LLP.
Subscriptions for Units will be received subject to rejection or allotment in whole or in part and the right is reserved to close the subscription books at any time without notice. Closing of the Offering is expected to take place on or about June 23, 2020, or on such other date as may be agreed upon by the Corporation and the Underwriters and, in any event, on or before a date not later than 42 days after the date of the receipt for the final short form prospectus (the “Closing Date”). It is expected that the Corporation will arrange for an instant deposit of the Unit Shares and Warrants to or for the account of the Underwriters with CDS Clearing and Depository Services Inc. (“CDS”) on the Closing Date, against payment of the aggregate purchase price for the Units. A purchaser of Units will receive only a customer confirmation from the registered dealer through which the Units are purchased.
In addition to the Offering, the Corporation anticipates entering into subscription agreements (the “Brokered Subscription Agreements”) on or prior to the Closing Date pursuant to which certain purchasers who are residents of the Province of Quebec will agree to purchase, on a brokered, private placement basis pursuant to exemptions from the prospectus requirements under applicable Canadian securities laws and pursuant to the exclusion from the registration requirements of the U.S. Securities Act provided by Rule 903 of Regulation S thereunder, an aggregate of up to 1,750,000 Units at the Offering Price for aggregate gross proceeds of up to $2,012,500, concurrent with the closing of the Offering (the “Concurrent Brokered Private Placement”). The Corporation will pay the Underwriters a cash fee (the “Placement Fee”) equal to 5.5% of the gross proceeds raised under the Concurrent Brokered Private Placement, together with, as additional compensation, such number of non-transferable compensation options (the “Private Placement Compensation Options”) equal to 5.5% of the Units sold pursuant to the Concurrent Brokered Private Placement. Each Private Placement Compensation Option is exercisable to acquire one Common Share at a price of $1.15 at any time prior to 4:00 p.m. (Toronto time) on the date that is two years following the Closing Date.
In addition, concurrent with the Offering, the Corporation anticipates, on or prior to the Closing Date, entering into subscription agreements (the “Non-Brokered Subscription Agreements”, and together with the Brokered Subscription Agreements, the “Subscription Agreements”) pursuant to which certain persons in the United States or U.S. Persons may purchase, on a non-brokered, private placement basis, and pursuant to the exemption from the prospectus and registration requirements of the U.S. Securities Act provided by Rule 506(b) of Regulation D thereunder, an aggregate of up to 927,826 additional Units at the Offering Price for aggregate gross proceeds of up to $1,067,000 (the “Concurrent Non-Brokered Private Placement”, and together with the Concurrent Brokered Private Placement, the “Concurrent Private Placement”). No fees or compensation will be payable to the Underwriters in connection with the Concurrent Non-Brokered Private Placement. This Prospectus does not qualify the distribution of any securities issued pursuant to the Concurrent Private Placement. The closing of the Concurrent Private Placement is subject to acceptance by the TSXV. Closing of the Offering is not conditional upon the closing of the Concurrent Private Placement. The securities sold under the Concurrent Private Placement will be subject to a statutory hold period of four months plus one day. Completion of the Concurrent Private Placement is subject to a number of conditions including the concurrent closing of the Offering and approval of the TSXV. See “Plan of Distribution”.
- 3 -
This Prospectus has been filed with the securities commissions or similar regulatory authorities in British Columbia, Alberta and Ontario. The distribution of this Prospectus and the offer or sale of the Units in certain jurisdictions is restricted by law. No action has been taken by the Corporation or the Underwriters to permit a public offering in any jurisdiction other than British Columbia, Alberta and Ontario. Persons into whose possession this Prospectus may come are required by the Corporation and the Underwriters to inform themselves about and to observe such restrictions. This Prospectus may not be used for, or in connection with, any offer to, or solicitation by, anyone in any jurisdiction or under any circumstances in which such offer or solicitation is not authorized or is unlawful. This Prospectus does not constitute an offer to sell or a solicitation of an offer to buy any of the Units in any jurisdiction to any person to whom it would be unlawful to make such an offer.
Subject to applicable laws, the Underwriters may, in connection with the Offering, effect transactions intended to stabilize or maintain the market price of the Common Shares at levels other than those which might otherwise prevail in the open market. Such transactions, if commenced, may be discontinued at any time. After the Underwriters have made reasonable efforts to sell all of the Units at the Offering Price, the Offering Price may be decreased, and further changed from time to time, to an amount not greater than the Offering Price. Any such reduction will not affect the proceeds received by the Corporation. See “Plan of Distribution”.
Prospective investors are advised to consult their own tax advisors regarding the application of Canadian federal income tax laws to their particular circumstances, as well as any other provincial, territorial, local, foreign and other tax consequences of acquiring, holding or disposing of Units.
Protech has prepared its financial statements, incorporated herein by reference, in accordance with International Financial Reporting Standards as issued by the International Accounting Standards Board (“IFRS”) which is incorporated within Part 1 of the CPA Canada Handbook – Accounting, and its consolidated financial statements are subject to Canadian generally accepted auditing standards and auditor independence standards.
Certain of the Corporation’s directors and officers reside outside of Canada. Each of the following persons has appointed DLA Piper (Canada) LLP, 2800 Park Place, 666 Burrard St, Vancouver, British Columbia, Canada V6C 2Z7 as agent for service of process:
Directors and Officers |
Gregory Crawford, Chief Executive Officer and Director Mark Greenberg, Director Eugene Ewing, Director Hardik Mehta, Chief Financial Officer |
It should be noted that it may not be possible to enforce judgments obtained in Canada against any person that resides outside of Canada, even if the person has appointed an agent for service of process.
Unless otherwise indicated, all references to “$”, “C$” or “dollars” in this Prospectus refer to Canadian dollars and all references to “US$” in this Prospectus refer to United States dollars. See “Currency and Exchange Rate Information”.
The registered office of the Corporation is located at 2800 Park Place, 666 Burrard Street, Vancouver, British Columbia V6C 2Z7 and the head and principal office of the Corporation is located at 1019 Town Drive, Wilder, Kentucky 41076.
- 4 -
TABLE OF CONTENTS
DESCRIPTION | PAGE NO. | |
ABOUT THIS PROSPECTUS | 6 | |
CAUTIONARY NOTE REGARDING FORWARD-LOOKING STATEMENTS | 6 | |
MARKET AND INDUSTRY DATA | 7 | |
CURRENCY AND EXCHANGE RATE INFORMATION | 7 | |
ELIGIBILITY FOR INVESTMENT | 8 | |
DOCUMENTS INCORPORATED BY REFERENCE | 8 | |
MARKETING MATERIALS | 9 | |
DESCRIPTION OF BUSINESS | 9 | |
CONSOLIDATED CAPITALIZATION | 15 | |
USE OF PROCEEDS | 15 | |
PLAN OF DISTRIBUTION | 16 | |
ENFORCEMENT OF JUDGMENTS AGAINST FOREIGN PERSONS OR COMPANIES | 19 | |
CONCURRENT PRIVATE PLACEMENT | 19 | |
DESCRIPTION OF SECURITIES BEING DISTRIBUTED | 19 | |
CERTAIN CANADIAN FEDERAL INCOME TAX CONSIDERATIONS | 21 | |
PRIOR SALES | 25 | |
TRADING PRICE AND VOLUME | 26 | |
RISK FACTORS | 27 | |
INTEREST OF EXPERTS | 35 | |
AUDITORS | 35 | |
STATUTORY RIGHTS OF WITHDRAWAL AND RESCISSION | 35 | |
CERTIFICATE OF THE CORPORATION | 1 | |
CERTIFICATE OF THE UNDERWRITERS | 2 |
- 5 -
ABOUT THIS PROSPECTUS
Unless otherwise noted or the context indicates otherwise, the “Corporation” and “Protech” refer to Protech Home Medical Corp. and its subsidiaries.
Readers should rely only on information contained or incorporated by reference in this Prospectus. The Corporation has not authorized anyone to provide the reader with different information. The Corporation and the Underwriters are not making an offer to sell or seeking offers to buy the Units in any jurisdiction where the offer or sale is not permitted. Prospective purchasers should assume that the information appearing or incorporated by reference in this Prospectus is accurate only as at the respective dates thereof, regardless of the time of delivery of the Prospectus or of any sale of the Units. The Corporation’s business, financial condition, results of operations and prospects may have changed since that date. The Corporation does not undertake to update the information contained or incorporated by reference herein, except as required by applicable securities laws.
CAUTIONARY NOTE REGARDING FORWARD-LOOKING STATEMENTS
This Prospectus contains “forward-looking information” within the meaning of Canadian securities legislation and “forward-looking statements” within the meaning of applicable securities legislation, including the United States Private Securities Litigation Reform Act of 1995 (collectively referred to herein as “forward-looking information” or “forward-looking statements”). Any statements that express, or involve discussions as to, expectations, beliefs, plans, objectives, assumptions or future events or performance are not historical facts and may be forward-looking and may involve estimates, assumptions and uncertainties which could cause actual results or outcomes to differ materially from those expressed in the forward-looking statements. Forward-looking statements are included to provide information about management’s current expectations and plans in an effort to allow investors and others to get a better understanding of the Corporation’s operating environment, business operations and financial performance and condition. Forward-looking information is provided as of the date of this Prospectus and the Corporation does not intend, and does not assume any obligation, to update this forward-looking information, except as required by law.
Any statements that express or involve discussions with respect to predictions, expectations, beliefs, plans, projections, objectives, assumptions or future events or performance often, but not always, identified by words or phrases such as “plans”, “expects” or “does not expect”, “is expected”, “budget”, “potential”, “scheduled”, “estimates”, “forecasts”, “intends”, “anticipates” or “does not anticipate”, or “believes”, or variations of such words and phrases or statements that certain actions, events or results “will”, “may”, “could”, “would”, “might” or “will be taken”, “occur” or “be achieved” (or the negative of these terms or comparable terminology) are not statements of fact and may be forward-looking statements. Forward-looking statements include, but are not limited to, statements regarding the anticipated closing date of the Offering and the Concurrent Private Placement, the anticipated use of the net proceeds of the Offering and the Concurrent Private Placement, the net proceeds of the Concurrent Private Placement, the terms of the Offering (including the manner of distribution) and the Concurrent Private Placement, the exercise of the Over-Allotment Option, anticipated operating results, profitability, financial condition and resources, anticipated needs for working capital, liquidity, capital resources, capital expenditures, milestones, licensing milestones, information with respect to future growth and growth strategies, anticipated trends in our industry, our future financing plans, timelines, currency fluctuations, government regulation, unanticipated expenses, commercial disputes or claims, limitations on insurance coverage, availability of cash flow to fund capital requirements, and expectations as to the effect of the COVID-19 pandemic on the Corporation’s business and operations.
Forward-looking information and forward looking statements are based on the reasonable assumptions, estimates, analysis and opinions of the Corporation’s management made in light of its experience and its perception of trends, current conditions and expected developments, as well as other factors that management believes to be relevant and reasonable in the circumstances at the date that such statements are made, but which may prove to be incorrect. The Corporation believes that the assumptions and expectations reflected in such forward-looking information are reasonable. If such factors or assumptions prove untrue, actual results, performance or achievements may be materially different from future results, performance or achievements expressed or implied by such statements.
- 6 -
By their very nature, forward-looking statements require the Corporation to make assumptions and are subject to known and unknown risks, uncertainties and other factors which may cause the actual results, performance or achievements of the Corporation to be materially different from any future results, performance or achievements expressed or implied by the forward-looking statements. A variety of material factors include, among others: credit risks, market risks (including those related to equity, foreign exchange and interest rate markets), liquidity risks, operational risks (including those related to technology and infrastructure), and risks relating to reputation, insurance, strategy, regulatory matters, legal matters, environmental matters, capital adequacy and risks related to the COVID-19 pandemic. Examples of such risk factors include: the Corporation may be subject to significant capital requirements and operating risks; changes in law, the ability to implement business strategies, growth strategies and pursue business opportunities; state of the capital markets; the availability of funds and resources to pursue operations; decline of reimbursement rates; dependence on few payors; possible new drug discoveries; a novel business model; dependence on key suppliers; granting of permits and licenses in a highly regulated business; competition; difficulty integrating newly acquired businesses; low profit market segments; disruptions in or attacks (including cyber-attacks) on information technology, internet, network access or other voice or data communications systems or services; the evolution of various types of fraud or other criminal behaviour; the failure of third parties to comply with their obligations; the impact of new and changes to, or application of, current laws and regulations; the overall difficult litigation environment, including in the United States; increased competition; changes in foreign currency rates; loss of foreign private issuer status; risks relating to the deterioration of global economic conditions; increased funding costs and market volatility due to market illiquidity and competition for funding; critical accounting estimates and changes to accounting standards, policies, and methods; and the occurrence of natural and unnatural catastrophic events and claims resulting from such events, as well as other general economic, market and business conditions, amongst others. This list is not exhaustive of the factors that may affect any of the Corporation’s forward-looking statements. Although the Corporation has attempted to identify important factors that could cause actual actions, events or results to differ materially from those described in forward-looking statements, there may be other factors that cause actions, events or results not to be as anticipated, estimated or intended. See the section entitled “Risk Factors” below, and in the section entitled “Risk Factors” in the Corporation’s annual information form dated January 20, 2020 (the “Annual Information Form”) and incorporated by reference herein, for additional risk factors that could cause results to differ materially from forward-looking statements. The Corporation provides no assurance that forward-looking statements will prove to be accurate, as actual results and future events could differ materially from those anticipated in such statements.
Investors are cautioned not to put undue reliance on forward-looking statements. The forward-looking statements contained herein are made as of the date of this Prospectus and, accordingly, are subject to change after such date. The Corporation disclaims any intent or obligation to update publicly or otherwise revise any forward-looking statements or the foregoing list of assumptions or factors, whether as a result of new information, future events or otherwise, except in accordance with applicable securities laws. Investors are urged to read the Corporation’s filings with Canadian securities regulatory agencies, which can be viewed online under the Corporation’s profile on the System for Electronic Document Analysis and Retrieval (“SEDAR”) at www.sedar.com.
MARKET AND INDUSTRY DATA
Certain information in this Prospectus or in documents incorporated by reference herein is obtained from third party sources, including public sources, and there can be no assurance as to the accuracy or completeness of such information. Although believed to be reliable, management of the Corporation has not independently verified any of the data from third party sources unless otherwise stated.
CURRENCY AND EXCHANGE RATE INFORMATION
Unless otherwise indicated, all references to “$”, “C$” or “dollars” in this Prospectus refer to Canadian dollars. References to “US$” in this Prospectus refer to United States dollars.
The following table sets forth (a) the rate of exchange for the Canadian dollar, expressed U.S. dollars, in effect for the periods indicated; and (b) the high and low exchange rates for the Canadian dollar, expressed in U.S. dollars, during the periods indicated, each based on the indicative rate of exchange as reported by the Bank of Canada for conversion of Canadian dollars into U.S. dollars.
Year Ended December 31
C$ to US$ |
||||||||||||
2019 | 2018 | 2017 | ||||||||||
High | 0.7699 | 0.8138 | 0.8245 | |||||||||
Low | 0.7353 | 0.7330 | 0.7276 | |||||||||
Closing | 0.7699 | 0.7330 | 0.7971 |
The indicative exchange rates on June 24, 2020, as reported by the Bank of Canada for the conversion of Canadian dollars into United States dollars was $1.00 equals US$0.7358
- 7 -
ELIGIBILITY FOR INVESTMENT
In the opinion of DLA Piper (Canada) LLP, counsel to the Corporation, and Bennett Jones LLP, counsel to the Underwriters, based on the current provisions of the Income Tax Act (Canada) (the “Tax Act”) and the regulations thereunder, in force as of the date hereof, the Unit Shares, Warrants, and Warrant Shares, if issued on the date hereof, would be qualified investments for trusts governed by a registered retirement savings plan, registered retirement income fund, registered education savings plan, registered disability savings plan, tax-free savings account (collectively referred to as “Registered Plans”) or a deferred profit sharing plan (“DPSP”), provided that:
(i) | in the case of Unit Shares and Warrant Shares, the Unit Shares or Warrant Shares, as applicable, are then listed on a “designated stock exchange” as defined in the Tax Act (which currently includes Tiers 1 and 2 of the TSXV) or the Corporation qualifies as a “public corporation” (as defined in the Tax Act); and |
(ii) | in the case of the Warrants, the Warrant Shares are qualified investments as described in (i) above and neither the Corporation, nor any person with whom the Corporation does not deal at arm’s length, is an annuitant, a beneficiary, an employer or a subscriber under or a holder of such Registered Plan or DPSP. |
Notwithstanding the foregoing, the holder of, or annuitant or subscriber under, a Registered Plan (the “Controlling Individual”) will be subject to a penalty tax in respect of Unit Shares, Warrant Shares or Warrants held in the Registered Plan if such securities are a prohibited investment for the particular Registered Plan. A Unit Share, Warrant Share or Warrant generally will not be a “prohibited investment” for a Registered Plan unless (i) the Controlling Individual does not deal at arm’s length with the Corporation for the purposes of the Tax Act, or (ii) the Controlling Individual has a “significant interest” (as defined in subsection 207.01(4) the Tax Act) in the Corporation. In addition, the Unit Shares and Warrant Shares will generally not be a “prohibited investment” if such securities are “excluded property” (as defined in the Tax Act) for the Registered Plan. Controlling Individuals should consult their own tax advisors as to whether the Unit Shares, Warrant Shares, or Warrants will be a prohibited investment in their particular circumstances.
DOCUMENTS INCORPORATED BY REFERENCE
Information has been incorporated by reference into this Prospectus from documents filed with the securities commissions or similar authorities in British Columbia, Alberta and Ontario. Copies of the documents incorporated herein by reference may be obtained on request without charge from the Chief Financial Officer of Protech Home Medical Corp. at 1019 Town Drive, Wilder, Kentucky 41076, telephone (859) 878-2220, and are also available electronically under the Corporation’s profile at www.sedar.com. The filings of the Corporation through SEDAR are not incorporated by reference in this Prospectus except as specifically set out herein.
The following documents, filed by the Corporation with the securities commissions or similar authorities in each of British Columbia, Alberta and Ontario, are specifically incorporated by reference into, and form an integral part of, this Prospectus:
(a) | the annual information form for the year ended September 30, 2019 dated January 20, 2020; |
(b) | the Corporation’s audited consolidated financial statements as at and for the year ended September 30, 2019 and 2018, and related notes thereto, together with the independent auditor’s report thereon; |
(c) | management’s discussion and analysis for the year ended September 30, 2019; |
(d) | the Corporation’s amended and restated unaudited condensed consolidated interim financial statements as at and for the three and six months ended March 31, 2020, and related notes thereto (the “Interim Financial Statements”); |
(e) | the amended and restated management’s discussion and analysis for the three and six months ended March 31, 2020 (the “Interim MD&A”); |
(f) | the management information circular of the Corporation dated December 24, 2019 in connection with the annual meeting of shareholders of the Corporation held on February 5, 2020; |
(g) | the management information circular of the Corporation dated December 18, 2018 in connection with the annual meeting of shareholders of the Corporation held on January 28, 2019; |
- 8 -
(h) | the “template version” (as such term is defined in National Instrument 41-101 – General Prospectus Requirements) of the term sheet for the Offering dated June 2, 2020; and |
(i) | the material change report dated June 4, 2020 in respect of the Offering. |
Any statement contained in this Prospectus or in a document incorporated or deemed to be incorporated by reference herein will be deemed to be modified or superseded for purposes of this Prospectus to the extent that a statement contained in this Prospectus or in any other subsequently filed document which also is, or is deemed to be, incorporated by reference into this Prospectus modifies, replaces or supersedes that statement. The modifying or superseding statement need not state that it has modified or superseded a prior statement or include any other information set forth in the document that it modifies or supersedes. The making of a modifying or superseding statement shall not be deemed an admission for any purposes that the modified or superseded statement when made, constituted a misrepresentation, an untrue statement of a material fact or an omission to state a material fact that is required to be stated or that is necessary to prevent a statement that is made from being false or misleading in the circumstances in which it was made. Any statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute part of this Prospectus.
Any document of the type required to be incorporated into the Prospectus by item 11.1 of Form 44-101F1 Short Form Prospectus Distributions (excluding confidential material change reports and excluding those portions of documents that are not required pursuant to National Instrument 44-101 Short Form Prospectus Distributions to be incorporated by reference herein) filed by the Corporation after the date of this Prospectus and before the termination of the distribution of the Offering are deemed to be incorporated by reference in this Prospectus.
MARKETING MATERIALS
Any “template version” of any “marketing materials” (as defined in National Instrument 41-101 General Prospectus Requirements) that are used by the Underwriters in connection with the Offering are not part of this Prospectus to the extent that the contents of any template version of the marketing materials have been modified or superseded by a statement contained in this Prospectus. Any template version of any other marketing materials filed under the Corporation’s profile on SEDAR at www.sedar.com after the date of this Prospectus but before the termination of the distribution under the Offering (including any amendments to, or an amended version of, the marketing materials) is deemed to be incorporated by reference in this Prospectus.
DESCRIPTION OF BUSINESS
Protech was incorporated under the Business Corporations Act (Alberta) on March 5, 1997 under the name 730285 Alberta Inc. and changed its name to VF Capital Ltd. on June 19, 1997, and to Canadian Dental Partners Inc. on August 9, 1999, and to International Health Partners Inc. (“IHP”) on January 25, 2001. Pursuant to a reverse take-over transaction completed on June 1, 2010 by way of a three cornered amalgamation between 0871455 B.C. Ltd., PHM DME Healthcare Inc. (“PHM/DME”) and IHP (the “RTO Transaction”), IHP acquired all of the issued and outstanding shares in the capital of PHM/DME. IHP acquired all of the issued and outstanding shares of Stancap Holdings I Limited (“Stancap”) concurrent with the RTO Transaction (the “SHL Share Exchange”). Upon completion of the RTO Transaction and the SHL Share Exchange, on June 1, 2010, IHP changed its name to Patient Home Monitoring Corp. Pursuant to a Certificate of Continuance filed on December 30, 2013, the Corporation changed its jurisdiction of governance by continuing from Alberta into British Columbia.
On December 21, 2017, the Corporation completed an amalgamation, by way of vertical short-form amalgamation under the Business Corporations Act (British Columbia), its wholly owned subsidiary, Stancap, (the “Amalgamation”). The Corporation is the continuing entity as a result of the Amalgamation and maintained its name as Patient Home Monitoring Corp. Pursuant to the Amalgamation, all of the issued and outstanding common shares of Stancap were cancelled, and the assets, obligations and liabilities of Stancap continued as the assets, obligations and liabilities of the Corporation. Where the term “Corporation” is used herein in the context of describing the Corporation’s assets and business, it may include its predecessor, PHM, prior to completion of the Amalgamation, as the context requires. On May 4, 2018, the Corporation changed its name to Protech Home Medical Corp.
The Corporation’s head office is located at 1019 Town Drive, Wilder, Kentucky 41076, and its registered office is located at 2800 Park Place, 666 Burrard Street, Vancouver, British Columbia V6C 2Z7.
- 9 -
The Corporation’s Common Shares are listed for trading on the TSXV under the symbol “PTQ” and is quoted for trading on the OTCQX under the symbol “PTQQF”.
The Corporation, through its subsidiaries, provides in-home monitoring equipment and supplies, durable medical equipment and disease management services to patients in the United States. The Corporation provides in-home monitoring and disease management services for patients in the United States healthcare market. The Corporation seeks to continue to expand its offerings to include the management of several chronic disease states focusing on patients with heart or pulmonary disease, sleep apnea, reduced mobility and other chronic health conditions requiring home-based services in the United States. The initial service line includes providing in-home monitoring equipment, supplies and services to patients in the United States. The primary business objective of the Corporation is to create shareholder value by continuing to offer a broader range of services to patients in need of in-home monitoring and chronic disease management, as well as acquiring other companies operating in the United States healthcare service and product sectors. The Corporation’s organic growth strategy is aggregate patients in existing or complimentary markets, through both acquisitions and taking market share directly from competitors, as well as its technology investment plans, whereby the Corporation plans to leverage technology to increase patient compliance by making ongoing training and patient follow up easier on the patient and improve the speed and ease of equipment and device delivery and set-up.
- 10 -
The following chart illustrates the Corporation’s corporate structure, including details of the jurisdiction of formation of each subsidiary.
- 11 -
The business of each of the Corporation’s material subsidiaries is discussed below.
PHM Logistics Corporation (formerly Healthcare Logistics Corporation)
PHM Logistics is the holding company for the majority of the Corporation’s acquired subsidiaries.
Resource Medical Group, LLC and Resource Medical Group of Charleston, LLC
Resource Medical Group, LLC and Resource Medical Group of Charleston, LLC (collectively, “Resource Medical”) are South Carolina limited liability companies, acquired by the Corporation in January 2014, which offer an array of durable medical equipment focused on pulmonary disease services, home-based sleep apnea and chronic obstructive pulmonary disease treatments, as well as home-based healthcare logistics and services.
Resource Medical has locations in North Charleston, Duncan, Myrtle Beach, Columbia and Beaufort with developed patient databases and relationships. Resource Medical have a strong presence in South Carolina and an expansive product offering, including the following: bariatric equipment, bathroom safety products, Bi-level PAP (bilevel positive airway pressure), canes/crutches, continuous positive airway pressure (“CPAP”) and CPAP masks and accessories, hospital beds, humidifiers, nebulizer and compressors, oxygen concentrator, patient lifts, walkers, wheelchairs, and products for wound care. The demand for these items is expected to grow as the United States population continues to age and chronic diseases among those aged 65 and over continue to increase.
Care Medical Partners LLC
Care Medical Partners LLC (“CMP”), which was acquired by the Corporation in June 2014 and consists of Care Medical of Athens, Inc., Care Medical Atlanta, LLC, Care Medical of Augusta, LLC, Care Medical of Gainesville, LLC, and Care Medical Savannah, LLC, focuses on CPAP and sleep apnea equipment and supplies, mobility equipment, oxygen and other related equipment and medical supplies. Licensed to do business in Georgia and South Carolina and located throughout Georgia, CMP has added to the Corporation’s product and service line in a key location, increasing access to patients. CMP has locations in Athens, Gainesville, Augusta, and Norcross to reach patients across Georgia also has a developed patient database and relationships. Providing both home and hospital delivery, CMP provides medical supplies, medical equipment in addition to mobility equipment and respiratory equipment.
Black Bear Medical Group, Inc.
Black Bear Medical Group, Inc. was acquired by the Corporation in January 2015, which consists of Black Bear Medical, Inc., Costal Med-Tech Corp. and Black Bear Medical NH, Inc. (collectively, “BBM”), being entities licensed to do business in Maine and New Hampshire. BBM specializes in home-based healthcare services, including mobility solutions, and other durable medical equipment. These entities have widened the Corporation’s reach to upper east coast patients in Maine and New Hampshire, strengthening its geographic presence and increasing its offerings.
West Home Healthcare, Inc.
The Corporation acquired West Home Healthcare, Inc. (“WHHC”), a company based and licensed in Virginia in March 2015. WHHC is a company focused on providing home-based healthcare services, including mobility solutions for the home. WHHC offers home accessibility products and services, including bath safety, patient lifts CPAP and sleep apnea equipment and supplies, mobility equipment, oxygen and other related equipment and medical supplies.
Legacy Oxygen & Home Care Equipment, LLC
The Corporation acquired Legacy Oxygen & Home Care Equipment, LLC (“Legacy”) in May 2015. Legacy is a regionally focused company, licensed to do business in Kentucky, Tennessee and Illinois, offering home-based medical equipment and services for patients with chronic pulmonary conditions across multiple locations in Kentucky.
Patient-Aids, Inc.
The Corporation acquired Patient-Aids, Inc. (“Patient-Aids”), a high growth, high margin, and profitable Ohio-based company focused on providing home-based healthcare services. Patient-Aids has, since 1982, been a dominant business in their region being licensed to do business in Ohio, Kentucky and Indiana. Its product lines and services focus on treating patients with chronic power mobility conditions, respiratory conditions, and patients requiring traditional durable medical home based equipment.
- 12 -
Cooley Medical Equipment, Inc.
CME is a participating Medicare provider that provides (i) nebulizers, oxygen concentrators, and CPAP and BiPAP units, (ii) traditional and non-traditional durable medical respiratory equipment and services, and (iii) non-invasive ventilation equipment, supplies and services. CME presently has six locations based in Eastern and Central Kentucky. CME is considered one of Kentucky’s largest home medical equipment and medical service providers.
Acadia Medical Supply, Inc.
AMI is a participating Medicare provider that provides (i) power mobility equipment, vehicle lifts, nebulizers, oxygen concentrators, and CPAP and BiPAP units, (ii) traditional and non-traditional durable medical equipment respiratory and durable medical equipment and services, and (iii) non-invasive ventilation equipment and supplies. It currently has four locations and is well positioned to allow the Corporation to further expand its geographical footprint and provide a larger number of services in the State of Maine.
Recent Developments
On November 2, 2018, the Corporation completed a bought deal private placement offering with Beacon, whereby Beacon purchased 28,248,000 Common Shares (or 5,649,600 post-Consolidation (as defined below) Common Shares) of the Corporation at a price of $0.12 per Common Share, for gross proceeds to the Corporation of $3,389,760, which included 3,248,000 Common Shares (or 649,600 post-Consolidation Common Shares) issued as a result of the partial exercise of the over-allotment option. The Corporation also completed a non-brokered private placement of Common Shares of the Corporation at $0.12 per Common Share with insiders for gross proceeds to the Corporation of $1,100,000.
On December 31, 2018, the Corporation effected a consolidation (the “Consolidation”) of its Common Shares on the basis of one (1) post-Consolidation Common Share for every five (5) pre-Consolidation Common Shares.
During the quarter ended December 31, 2018, the Corporation completed the acquisitions of Riverside Medical, Inc. (“Riverside Medical”) and Central Oxygen, Inc. (“Central Oxygen”). Riverside Medical is a provider of superior home respiratory services and equipment throughout West Tennessee, Southern Middle Tennessee and Northern Mississippi. The Riverside Medical acquisition was the Corporation’s first entry into the State of Tennessee, which neighbors the Corporation’s two largest business units and gave it immediate access to the insurance contracts necessary to serve patients within the state. Central Oxygen is also focused on the respiratory business and is located in up-state Indiana. The acquisition allowed the Corporation to expand its current operations in Indiana from a geographic perspective and brought additional insurance contracts into the Corporation’s domain.
On March 7, 2019, the Corporation completed a bought deal private placement of 8.0% unsecured convertible debentures (the “2019 Debentures”), through a syndicate of underwriters led by Beacon, and including Canaccord Genuity Corp. and Haywood Securities Inc., for gross proceeds to the Corporation of $15 million, including the full exercise of the underwriters’ option. The 2019 Debentures bear interest from the date of closing at a rate of 8.0% per annum, payable semi-annually in arrears on the last day of June and December in each year and will mature on March 7, 2024 (the “Maturity Date”). The principal amount of the 2019 Debentures are convertible into Common Shares at the option of the holder at any time prior to the close of business on the last business day immediately preceding the Maturity Date at a conversion price of $1.30 per Common Share, subject to certain acceleration provisions.
On April 30, 2019 the Corporation redeemed its 7.5% non-convertible unsecured subordinated debentures due December 31, 2019 (the “2014 Debentures”), representing a redemption in full of all such 2014 Debentures.
On May 3, 2019, the Corporation discovered it was subject to a cyberscam breach of its email system. The unlawful intrusion into one employee’s account, led to fraudulent banking information being relayed regarding a planned wire transfer of C$9.2 million toward the redemption of the Corporation’s 2014 Debentures. In early September, 2019, C$8.6 million of the misappropriated funds pursuant to the cyberscam incident were returned to the Corporation by the bank of the perpetrator pursuant to a final Garnishee Order Absolute from a Court of Hong Kong.
- 13 -
In response to the cyberscam breach, the Corporation has taken adopted various measures in an effort to improve its cybersecurity, which measures include: mandating multi-factor authentication; creation of additional anti-phishing policies; establishment of retention policies and litigation holds; enhancement of data loss prevention policies and login restrictions; an increase in the frequency of forwarding rule checks, document backups and security awareness training seminars; adoption of source banners for external emails; disablement of IMAP authentication across the tenant; and enhanced firewall content filtering.
In July 2019, the Corporation sold substantially all of the assets of its only non-core asset, wholly-owned Patient Home Monitoring, Inc. (“PHM Inc.”). The cash consideration at close was approximately C$4.5 million. PHM Inc. accounted for approximately less than 5% of total consolidated revenues and was no longer consistent with the corporate initiatives of the Corporation.
In October 2019, the Corporation completed the acquisition of Cooley Medical Equipment, Inc. (“CME”), a company based in Kentucky. CME is a leader and top provider of respiratory services in Eastern and Central Kentucky with six locations that, when combined with the Corporation’s current operations, will significantly expand the Corporation’s geographical footprint.
In December 2019, the Corporation completed the acquisition of Acadia Medical, Inc. (“AMI”), a company based in Maine. AMI is a leader and top provider of respiratory services in the State of Maine. It currently has four locations and will allow Corporation to further expand its geographical footprint and provide a larger number of services in the State of Maine.
In February 2020, the Corporation submitted its formal application to have the Common Shares quoted on the OTCQX. On June 2, 2020, it qualified to trade on the OTCQX and the Common Shares commenced trading on OTCQX under the symbol “PTQQF.”
In response to COVID-19, the United States’ guidelines issued on March 16, 2020 specifically noted that healthcare services were a critical infrastructure industry as defined by the Department of Homeland Security and employees of companies in this industry have a social responsibility to maintain a normal work schedule to meet service demands. In response to the COVID-19 pandemic, the Corporation has modified its current policies and implemented the instructions provided by the Centers for Disease Control and Prevention in order to best protect its employees and patient network. In addition, the Corporation accelerated inventory purchases to safeguard against any potential future supply chain weaknesses and meet potential increased demand.
In April 2020, the Corporation was approved for a C$5.97 million loan under the Payroll Protection Program administered by the U.S. Small Business Administration, which is a US$349 billion loan program that originated from the U.S. Coronavirus Aid, Relief and Economic Security (CARES) Act. The loan is intended to assist the Corporation in maintaining its workers through the COVID-19 pandemic.
Although the Corporation has taken steps to mitigate the impact of COVID-19, the continued presence and spread of COVID-19 nationally and globally could have a material adverse impact on the Corporation’s business, operations, and financial results and position, including through employee attrition, disruptions to the Corporation’s supply chains and sales channels, restrictions of operations at our retail stores, changes in the number of Americans with health insurance resulting in a change in demand for the Corporation’s products, as well as a deterioration of general economic conditions including a possible national or global recession. The Corporation continues to monitor the situation and work with its stakeholders (including customers, employees, and suppliers) in order to assess further possible implications to its business, supply chain, and customers, and, where practicable, mitigate adverse consequences and responsibly address this global pandemic. What further impact, if any, the COVID-19 pandemic may have on the Corporation’s business is unpredictable. See “Risk Factors - Risks Related to the Business - COVID-19 Pandemic”.
For further information regarding Protech, see the Annual Information Form and other documents incorporated by reference in this Prospectus available at www.sedar.com under the Corporation’s profile.
- 14 -
CONSOLIDATED CAPITALIZATION
There have been no material changes in the consolidated capitalization of the Corporation since the Interim Financial Statements. The following table shows the consolidated capitalization of the Corporation as at the date of the Corporation’s Interim Financial Statements and as at such date after giving effect to the Offering. The following table should be read in conjunction with the Interim Financial Statements and Interim MD&A, each of which are incorporated by reference into this Prospectus:
Interim Financial Statements(1) | ||||||||||||||||
As at March 31,
2020 Before Giving Effect to the Offering and the Concurrent Private Placement |
As at March 31, 2020
After Giving Effect to the Offering but Before Giving Effect to the Concurrent Private Placement(2)(3)(8) |
As at March 31, 2020
After Giving Effect to the Concurrent Private Placement but Before Giving Effect to the Offering(4)(5)(9) |
As at March 31, 2020
After Giving Effect to the Offering and the Concurrent Private Placement(6)(7)(8)(9) |
|||||||||||||
Share Capital | $ | 198,223 | $ | 225,155 | $ | 200,954 | $ | 228,124 | ||||||||
(Authorized unlimited) | 83,685 Common Shares | 108,686 Common Shares | 86,363 Common Shares | 111,364 Common Shares | ||||||||||||
Cash | $ | 6,210 | $ | 33,142 | $ | 8,941 | $ | 36,111 | ||||||||
Warrants | 886 | 14,762 | 2,322 | 16,197 | ||||||||||||
Debentures | $ | 14,996 | $ | 14,996 | $ | 14,996 | $ | 14,996 |
(1) | 000’s. |
(2) | After deducting the Underwriters’ Fee and estimated expenses of the Offering and the Concurrent Private Placement. |
(3) | Assuming the exercise of the Over-Allotment Option in full. |
(4) | After deducting the Placement Fee and estimated expenses of the Offering and the Concurrent Private Placement. |
(5) | Assuming 2,677,826 Units are issued and sold by the Corporation pursuant to the Concurrent Private Placement. |
(6) | After deducting the Underwriters’ Fee, the Placement Fee and estimated expenses of the Offering and the Concurrent Private Placement. |
(7) | Assuming the exercise of the Over-Allotment Option in full and 2,677,826 Units are issued and sold by the Corporation pursuant to the Concurrent Private Placement. |
(8) | Assuming 1,375,055 Broker Warrants are issued in connection with the Offering. |
(9) | Assuming 96,250 Private Placement Compensation Options are issued in connection with the Brokered Private Placement. |
(10) | As at the close of business on June 24, 2020, there were 11,117,382 options outstanding under the Corporation’s amended and restated fixed number stock option plan, which was approved at the annual and special meeting of the shareholders of the Corporation held on January 28, 2019. |
USE OF PROCEEDS
The net proceeds to the Corporation from the Offering, after deducting the Underwriters’ Fee (but before deducting the estimated expenses), will be approximately $23,625,945, or approximately $27,169,837 (if the Over-Allotment Option is exercised in full). The net proceeds to the Corporation from the Concurrent Private Placement, after deducting the Placement Fee (but before deducting the estimated expenses), will be approximately $2,968,813. The net proceeds to the Corporation from the Offering and the Concurrent Private Placement together, after deducting the Underwriters’ Fee, the Placement Fee and the estimated expenses of the Offering and the Concurrent Private Placement of $237,500, will be approximately $26,357,258, or approximately $29,901,150 (if the Over-Allotment Option is exercised in full).
The net proceeds of the Offering and the Concurrent Private Placement will be used to increase the cash position of the Corporation without any other current known or specified near or medium term purpose. The Corporation believes it is prudent to secure capital to ensure that the Corporation maintains sufficient liquidity and capital resources in the near- to medium-term. In addition, the Corporation wishes to ensure that it has sufficient cash on hand in order to complete strategic acquisitions in the future if, as and when any such opportunities arise. The Corporation has spent the last several years building and solidifying its platform and now believes there are opportunities to pivot into a strategy more focused on growth. The Corporation intends to use the net proceeds of the Offering and the Concurrent Private Placement to strengthen its balance sheet to ensure that it is well positioned to aggressively pursue its corporate strategy to grow the business, both organically and via acquisition. The Corporation has not identified any specific acquisitions, investments or projects it wishes to undertake. The anticipated use of net proceeds of the Offering and the Concurrent Private Placement as detailed above is based on the best estimates prepared by management of the Corporation. Actual expenditures may differ from the expectations set forth above. The stated business objectives of the Corporation are to remain focused on the continued operations of its business, while looking for opportunities to increase revenue and reduce costs in an effort to improve margins, which can, if the opportunity arises, include one or more strategic acquisitions.
- 15 -
Until applied, the net proceeds will be held as cash balances in the Corporation’s bank account or invested in certificates of deposit and other instruments issued by banks or obligations of or guaranteed by the Government of Canada or any province thereof or the Government of the United States or any state thereof.
If the Over-Allotment Option is exercised in full, the Corporation will receive additional net proceeds of $3,543,892, after deducting the applicable Underwriters’ Fee. The net proceeds from the exercise of the Over-Allotment Option, if any, will be used to increase the cash position of the Corporation as set forth above, as will any proceeds received from exercise of the Broker Warrants. See “Risk Factors”.
As previously disclosed, the net proceeds from the Corporation’s prior financing, being the issuance of the 2019 Debentures, were intended to be used by the Corporation for debt repayment, working capital and general corporate requirements. The Corporation has applied the net proceeds of the 2019 Debentures (after deducting the fees and expenses incurred in respect of the such offering) as follows: (i) approximately $9.2 million was used to repay the principal amount of the 2014 Debentures, together with all interest accrued thereon and early repayment fees; (ii) approximately $4.2 million was used in connection with the Corporation’s acquisitions; and (iii) the balance, being approximately $73,000, was used for working capital purposes.
PLAN OF DISTRIBUTION
Pursuant to the Underwriting Agreement, the Underwriters have severally and not jointly, nor jointly and severally agreed to purchase, as principals, and the Corporation has agreed to sell, subject to compliance with all necessary legal requirements and pursuant to the terms and conditions of the Underwriting Agreement, on the Closing Date, not less than all of the Units at the Offering Price, payable in cash to the Corporation against delivery of the Units. In consideration for the services rendered by the Underwriters in connection with the Offering, the Underwriters will be paid a cash fee equal to 5.5% of the gross proceeds of the Offering (including any gross proceeds raised on the exercise of the Over-Allotment Option). As additional compensation for services rendered, the Underwriters shall be issued Broker Warrants to purchase that number of Broker Shares as is equal to 5.5% of the Units sold pursuant to the Offering (including any Over-Allotment Securities). This Prospectus also qualifies the distribution of the Broker Warrants issued to the Underwriters (including in respect of any Broker Warrants issuable in respect of any exercise of the Over-Allotment Option). The Corporation will pay a Placement Fee equal to 5.5% of the gross proceeds raised under the Concurrent Brokered Private Placement together with such number of Private Placement Compensation Options equal to 5.5% of the Units sold pursuant to the Concurrent Brokered Private Placement. Each Private Placement Compensation Option is exercisable to acquire one Common Share at a price of $1.15 at any time prior to 4:00 p.m. (Toronto time) on the date that is two years following the Closing Date.
The Corporation has granted the Underwriters the Over-Allotment Option, exercisable in whole or in part, at any time and from time to time, in the sole discretion of the Underwriters, for a period of 30 days from the Closing Date, to purchase up to an additional amount of Units equal to 15% of the Units sold pursuant to the Offering, being 3,261,000 Over-Allotment Units, at the Offering Price, to cover over-allotments, if any, and for market stabilization purposes. The purchase price of one additional Unit pursuant to the Over-Allotment Option will be equal to the Offering Price. The Over-Allotment Option may be exercisable by the Underwriters in respect of: (i) Over-Allotment Units at the Offering Price; or (ii) Over-Allotment Shares at a price of $1.119 per Over-Allotment Share; or (iii) Over-Allotment Warrants at a price of $0.062 per Over-Allotment Warrant; or (iv) any combination of the Over-Allotment Securities, so long as the aggregate number of Over-Allotment Shares and Over-Allotment Warrants which may be issued under the Over-Allotment Option does not exceed 3,261,000 Over-Allotment Shares and 1,630,500 Over-Allotment Warrants. The grant of the Over-Allotment Option and the Over-Allotment Securities issued upon exercise of the Over-Allotment Option are qualified for distribution under this Prospectus. A purchaser who acquires securities forming part of the Underwriters’ over-allocation position acquires those securities under this Prospectus, regardless of whether the over-allocation position is ultimately filled through the exercise of the Over-Allotment Option or secondary market purchases. If the Over-Allotment Option is exercised in full, the total price to the public, the Underwriters’ Fee and the net proceeds to the Corporation (before payment of the expenses of the Offering) will be approximately $28,751,150, $1,581,313 and $27,169,837, respectively.
Each Unit will consist of one Unit Share and one-half of one Warrant. The Warrants will be created and issued pursuant to the terms of the Warrant Indenture, which will be entered into between the Corporation and the Warrant Agent. Each Warrant will entitle the holder thereof to purchase one Warrant Share at a price of $1.60 at any time prior to 4:00 p.m. (Toronto time) on the date that is 12 months after the Closing Date, after which time the Warrants will expire and be void and of no value. The Warrant Indenture will contain provisions designed to protect the holders of Warrants against dilution upon the happening of certain events. No fractional Common Shares will be issued upon the exercise of any Warrants. See “Description of Securities Being Distributed”.
- 16 -
Subscriptions for the Units will be received subject to rejection or allotment in whole or in part. Other than in connection with the Concurrent Private placement, it is anticipated that the Unit Shares and Warrants comprising the Units will be registered in the name of CDS or its nominee, and will be deposited with CDS at the closing of the Offering on the Closing Date, which is expected to occur on or about June 23, 2020 or such other date as the Underwriters and the Corporation may agree, but in any case no later than 42 days after the date a receipt is issued for the (final) Prospectus to be filed in respect of the Offering. A purchaser of Units pursuant to the Offering will receive only a customer confirmation from the registered dealer from or through which the Units are purchased and who is a CDS participant. Other than in connection with the Concurrent Private placement, no definitive certificates will be issued unless specifically requested or required.
The Underwriters have reserved the right to form a selling group of appropriately registered dealers and brokers, with compensation to be negotiated between the Underwriters and such selling group participants, but at no additional cost to the Corporation.
The Offering Price was determined based upon arm’s length negotiations between the Corporation and the Co-Lead Underwriters, on their own behalf and on behalf of the Underwriters. Among the factors considered in determining the Offering Price were the market price of the Common Shares, prevailing market conditions, the historical performance and capital structure of the Corporation, the availability of comparable investments, an overall assessment of management of the Corporation and the consideration of the foregoing factors in relation to market valuation of companies in related businesses.
The obligations of the Underwriters under the Underwriting Agreement are conditional and may be terminated at their discretion on the basis of each of a: “disaster out”, “material adverse change out”, “regulatory proceedings out” (including cease trading of the Common Shares) and “breach of agreement out” and may also be terminated upon the occurrence of certain other stated events. The Underwriters are, however, obligated to take up and pay for all of the Units offered hereby if any of such Units are purchased under the Underwriting Agreement. The Underwriting Agreement also provides that the Corporation will indemnify the Underwriters and their directors, officers, employees and shareholders against certain liabilities and expenses or will contribute to payments that the Underwriters may be required to make in respect thereof.
The Corporation has agreed in favour of the Underwriters that, during the period ending 90 days after the Closing Date, it will not issue any Common Shares or other securities convertible into Common Shares, without having obtained the prior written consent of the Co-Lead Underwriters, on behalf of the Underwriters, such consent not to be unreasonably withheld, other than: (i) pursuant to the Over-Allotment Option; (ii) under existing director or employee stock options, bonus or purchase plans or similar share compensation arrangements; (iii) under director or employee stock options or bonuses granted in a manner consistent with past practice; (iv) upon the exercise of convertible securities, warrants or options outstanding; (v) pursuant to previously announced payments and/or acquisitions; (vi) the obligations of the Corporation in respect of existing agreements; or (vii) the issuance of securities by the Corporation in connection with acquisitions in the normal course of business.
The Corporation has also agreed to use its best efforts to cause each of the directors and senior officers of the Corporation to enter into lock up agreements in favour of the Underwriters evidencing their agreement not to, for a period of 90 days following the Closing Date, directly or indirectly, offer, sell, contract to sell, grant an option to purchase, make any short sale, lend, swap or otherwise dispose of, transfer, assign or announce any intention to do so, any Common Shares or securities convertible into, exchangeable for, or otherwise exercisable to acquire Common Shares or other equity securities of the Corporation, other than pursuant to a bona fide takeover bid or any other similar transaction made generally to all of the shareholders of the Corporation, provided that, in the event the change of control or other similar transaction is not completed, such securities shall remain subject to the lock-up agreement.
Certain of the Underwriters and their affiliates have performed investment banking, commercial banking and advisory services for the Corporation from time to time for which they have received customary fees and expenses. The Underwriters and their affiliates may, from time to time, engage in transactions with and perform services for the Corporation in the ordinary course of their business.
The Offering is being made in each of the provinces of British Columbia, Alberta and Ontario. The Units will be offered in each of the relevant provinces of Canada through those Underwriters or their affiliates who are registered to offer the Units for sale in such provinces and such other registered dealers as may be designated by the Underwriters. Subject to applicable law, the Underwriters may offer the Units in the United States and such other jurisdictions outside of Canada and the United States as agreed between the Corporation and the Underwriters.
- 17 -
The Units, the Unit Shares and the Warrants to be issued pursuant to the Offering and the Warrant Shares, have not been and will not be registered under the U.S. Securities Act or any applicable state securities laws, and may not be offered, sold or delivered in the United States or to, or for the account or benefit of, persons in the United States or U.S. Persons, unless registered under the U.S. Securities Act and applicable state securities laws or an exemption therefrom is available. Each Underwriter and each of its United States broker-dealer affiliates has agreed that, except as permitted by the Underwriting Agreement and subject to all the agreements, covenants and restrictions set forth therein, it will not offer or sell the Units, as part of its distribution at any time, in the United States or to, or for the account or benefit of, persons in the United States or U.S. Persons and that all offers and sales of the Units will otherwise be made outside of the United States to non-U.S. Persons in accordance with Rule 903 of Regulation S (“Regulation S”) under the U.S. Securities Act; provided, however, the Underwriters may (i) offer and resell the Units that they have acquired pursuant to the Underwriting Agreement in the United States and to, or for the account or benefit of, persons in the United States and U.S. Persons who are “qualified institutional buyers,” as such term is defined in Rule 144A under the U.S. Securities Act (“Qualified Institutional Buyers”), in compliance with Rule 144A under the U.S. Securities Act, and (ii) offer the Units in the United States and to, or for the account or benefit of, persons in the United States and U.S. Persons as substituted purchasers to whom the Corporation will sell the Units directly to persons who are institutional “accredited investors” who satisfy one of the criteria set forth in Rule 501(a)(1), (2), (3) or (7) of Regulation D (“Regulation D”) under the U.S. Securities Act (“Institutional Accredited Investors”) in compliance with Rule 506(b) of Regulation D and, in both cases, in compliance with applicable state securities laws.
The Units, the Unit Shares, the Warrants and the Warrant Shares offered and sold in such circumstances will be “restricted securities” within the meaning of Rule 144(a)(3) under the U.S. Securities Act, and any certificates representing such securities will bear or deemed to bear, as applicable, a legend to the effect that the securities represented thereby are not registered under the U.S. Securities Act or applicable state securities laws and may only be offered, sold, pledged or otherwise transferred pursuant to certain exemptions from the registration requirements of the U.S. Securities Act and applicable state securities laws, if available, and any other restrictions agreed to under the terms of any offer or sale that are applicable to such purchaser in the United States or to, or for the account or benefit of, persons in the United States or U.S. Persons.
This Prospectus does not constitute an offer to sell, or a solicitation of an offer to buy, any of the Units, Unit Shares or the Warrants (or any underlying securities) in the United States or to, or for the account or benefit of, persons in the United States or U.S. Persons. In addition, until 40 days after the commencement of the Offering, an offer or sale of the Units, the Unit Shares or the Warrants within the United States or to, or for the account or benefit of, a person in the United States or a U.S. Person by any dealer, whether or not participating in the Offering, may violate the registration requirements of the U.S. Securities Act if such other offer or sale is made otherwise than in accordance with an available exemption from the registration requirements under the U.S. Securities Act.
Except as otherwise noted therein, the terms used in the last three paragraphs have the meanings given to them in Regulation S.
Pursuant to policy statements of certain securities regulators, the Underwriters may not, throughout the period of distribution, bid for or purchase Common Shares. The foregoing restriction is subject to certain exceptions including: (a) a bid or purchase permitted under the Universal Market Integrity Rules for Canadian Marketplaces administered by the Investment Industry Regulatory Organization of Canada relating to market stabilization and passive market making activities; (b) a bid or purchase made for and on behalf of a customer where the order was not solicited during the period of the distribution, provided that the bid or purchase was for the purpose of maintaining a fair and orderly market and not engaged in for the purpose of creating actual or apparent active trading in, or raising the price of, such securities; or (c) a bid or purchase to cover a short position entered into prior to the commencement of a prescribed restricted period. Consistent with these requirements, and in connection with this distribution, the Underwriters may over-allot or effect transactions that stabilize or maintain the market price of the Common Shares at levels other than those which otherwise might prevail on the open market. If these activities are commenced, they may be discontinued by the Underwriters at any time. The Underwriters may carry out these transactions on the TSXV, in the over-the-counter market or otherwise.
The Underwriters propose to offer the Units initially at the Offering Price specified. After the Underwriters have made reasonable efforts to sell all of the Units at such price, the Offering Price may be decreased, and may be further changed from time to time, to an amount not greater than the Offering Price, and the compensation realized by the Underwriters will be decreased by the amount that the aggregate price paid by purchasers for the Units is less than the gross proceeds to be paid by the Underwriters to the Corporation. However, in no event will the Corporation receive less than net proceeds of $1.08675 per Unit of net proceeds.
- 18 -
The TSXV has conditionally approved the Offering and the listing of the Unit Shares, Warrant Shares and Broker Shares on the TSXV (including the Over-Allotment Shares and the Over-Allotment Warrant Shares). Listing is subject to the Corporation fulfilling the applicable listing requirements of the TSXV.
ENFORCEMENT OF JUDGMENTS AGAINST FOREIGN PERSONS OR COMPANIES
Certain directors and officers of Protech reside outside of Canada. Such directors and officers named below have appointed the following agents for service of process:
Name of Director/Officer | Name and Address of Agent |
Gregory Crawford, Chief Executive Officer and Director | DLA Piper (Canada) LLP, 2800 Park Place, 666 Burrard St, Vancouver, British Columbia, Canada V6C 2Z7 |
Mark Greenberg, Director | DLA Piper (Canada) LLP, 2800 Park Place, 666 Burrard St, Vancouver, British Columbia, Canada V6C 2Z7 |
Eugene Ewing, Director | DLA Piper (Canada) LLP, 2800 Park Place, 666 Burrard St, Vancouver, British Columbia, Canada V6C 2Z7 |
Hardik Mehta, Chief Financial Officer | DLA Piper (Canada) LLP, 2800 Park Place, 666 Burrard St, Vancouver, British Columbia, Canada V6C 2Z7 |
Purchasers are advised that it may not be possible for investors to enforce judgments obtained in Canada against any person that resides outside of Canada, even if the party has appointed an agent for service of process.
CONCURRENT PRIVATE PLACEMENT
The Corporation will enter into the Subscription Agreements on or prior to the Closing Date, pursuant to which certain subscribers will agree to subscribe for and purchase an aggregate of up to 2,677,826 Units at the Offering Price per Unit for aggregate gross proceeds of up to approximately $3,079,500. Subject to obtaining regulatory approval, the closing of the Concurrent Private Placement is expected to occur concurrently with the closing of the Offering.
Subscriptions for the Units will be received subject to rejection or allotment in whole or in part. It is anticipated that definitive certificates will be issued for the Unit Shares and Warrants comprising the Units to be issued and sold by the Corporation pursuant to the Concurrent Private Placement at the closing of the Concurrent Private Placement on the Closing Date. The terms and conditions of the Concurrent Private Placement will be set out in the Subscription Agreements.
This Prospectus does not qualify any securities issued under the Concurrent Private Placement. The Units to be issued under the Concurrent Private Placement will be subject to a statutory hold period lasting four months and one day following the closing of the Concurrent Private Placement. The Corporation will pay a Placement Fee equal to 5.5% of the gross proceeds raised under the Concurrent Brokered Private Placement together with such number of Private Placement Compensation Options equal to 5.5% of the Units sold pursuant to the Concurrent Brokered Private Placement. Each Private Placement Compensation Option is exercisable to acquire one Common Share at a price of $1.15 at any time prior to 4:00 p.m. (Toronto time) on the date that is two years following the Closing Date. The anticipated net proceeds from the Offering (but excluding the Over-Allotment Option) and the Concurrent Private Placement (after deducting the expenses of the Offering and the Concurrent Brokered Private Placement and the Underwriters’ Fee and Placement Fee) will be $26,357,258. See “Use of Proceeds” for the principal purposes for which the net proceeds of the Concurrent Private Placement will be used by the Corporation.
DESCRIPTION OF SECURITIES BEING DISTRIBUTED
Common Shares
The Corporation is authorized to issue an unlimited number of the Common Shares. As of June 24, 2020, there were 84,165,779 Common Shares issued and outstanding. The holders of Common Shares are entitled to receive notice of and to attend any meeting of the shareholders of the Corporation and are entitled to one vote for each Common Share held (except at meetings at which only the holders of another class of shares are entitled to vote). The holders of Common Shares are entitled to receive dividends, on a pro rata basis, if, as and when declared by the Board of Directors if any, as and when from funds legally available therefor and upon the liquidation, dissolution or winding up of the Corporation are entitled to receive on a pro-rata basis, the net assets of the Corporation after payment of debts and other liabilities, in each case subject to the rights, privileges, restrictions and conditions attaching to any other series or class of shares ranking senior in priority. The Common Shares do not carry any pre-emptive, subscription, redemption or conversion rights.
- 19 -
The Corporation has not, for any of the three most recently completed financial years or its current financial year, declared or paid any dividends on the Common Shares, and does not currently have a policy with respect to the payment of dividends. The Corporation currently intends to retain future earnings to finance the operation, development and expansion of its business. The Corporation does not anticipate paying cash dividends on the Common Shares in the foreseeable future. Payment of future cash dividends, if any, will be at the discretion of the Board of Directors and will depend on the Corporation’s financial condition, results of operations, contractual restrictions, capital requirements, business prospects and other factors that the Board of Directors may consider relevant.
Warrants
Except for the Warrants issued under the Concurrent Private Placement which will be evidenced by definitive warrant certificates, the Warrants will be issued in registered form under and be governed by the terms of the Warrant Indenture. The Corporation will appoint the principal transfer offices of the Warrant Agent in Vancouver, British Columbia as the location at which Warrants may be surrendered for exercise or transfer. The following summary of certain provisions of the Warrant Indenture contains all of the material attributes and characteristics of the Warrants but does not purport to be complete and is qualified in its entirety by reference to the provisions of the Warrant Indenture.
The each Unit Share and each half Warrants comprising each Unit will separate immediately upon closing of the Offering. Each whole Warrant will entitle the holder to purchase one Warrant Share at a price of $1.60. The exercise price and the number of Warrant Shares issuable upon exercise are both subject to adjustment in certain circumstances as more fully described below. Warrants will be exercisable at any time prior to 4:00 p.m. (Toronto time) on the date that is 12 months after the Closing Date after which time the Warrants will expire and become null and void.
The Warrant Indenture will provide for adjustment in the number of Warrant Shares issuable upon the exercise of the Warrants and/or the exercise price per Warrant Share upon the occurrence of certain events, including:
(i) | the issuance of Common Shares or securities exchangeable for or convertible into Common Shares to all or substantially all of the holders of the Common Shares as a stock dividend or other distribution (other than a distribution of Common Shares upon the exercise of Warrants); |
(ii) | the subdivision, redivision or change of the Common Shares into a greater number of shares; |
(iii) | the reduction, combination or consolidation of the Common Shares into a lesser number of shares; |
(iv) | the issuance to all or substantially all of the holders of the Common Shares of rights, options or warrants under which such holders are entitled, during a period expiring not more than 45 days after the record date for such issuance, to subscribe for or purchase Common Shares, or securities exchangeable for or convertible into Common Shares, at a price per share to the holder (or at an exchange or conversion price per share) of less than 95% of the “current market price”, as defined in the Warrant Indenture, for the Common Shares on such record date; and |
(v) | the issuance or distribution to all or substantially all of the holders of the Common Shares of shares of any class other than the Common Shares, rights, options or warrants to acquire Common Shares or securities exchangeable or convertible into Common Shares, of evidences of indebtedness or cash, securities or any property or other assets (other than cash dividends in the ordinary course). |
The Warrant Indenture will also provide for adjustment in the class and/or number of securities issuable upon the exercise of the Warrants and/or exercise price per security in the event of the following additional events: (1) reclassifications of the Common Shares; (2) consolidations, amalgamations, plans of arrangement or mergers of the Corporation with or into another entity (other than consolidations, amalgamations, plans of arrangement or mergers which do not result in any reclassification of the Common Shares or a change of the Common Shares into other shares); or (3) the transfer (other than to one of the Corporation’s subsidiaries) of the undertaking or assets of the Corporation as an entirety or substantially as an entirety to another corporation or other entity.
No adjustment in the exercise price or the number of Warrant Shares purchasable upon the exercise of the Warrants will be required to be made unless such adjustment would result in a change of at least $0.0001 or the number of Warrant Shares purchasable upon exercise by at least one one-hundredth of a Warrant Share.
- 20 -
The Corporation will also covenant in the Warrant Indenture that, during the period in which the Warrants are exercisable, it will give notice to holders of Warrants of certain stated events, including events that would result in an adjustment to the exercise price for the Warrants or the number of Warrant Shares issuable upon exercise of the Warrants, at least 14 days prior to the record date or effective date, as the case may be, of such event.
No fractional Warrant Shares will be issuable upon the exercise of any Warrants, and no cash or other consideration will be paid in lieu of fractional shares. Holders of Warrants will not have any voting or pre-emptive rights or any other rights which a holder of the Common Shares would have.
The Warrants may not be exercised in the United States or by, or on behalf or for the benefit of, a person in the United States or a U.S. Person, unless an exemption from the registration requirements of the U.S. Securities Act and applicable state securities laws is available for the issuance of the Warrant Shares to such Holder and such Holder has furnished an opinion of counsel of recognized standing or such other evidence in form and substance reasonably satisfactory to the Corporation to such effect; provided, however, that a Qualified Institutional Buyer or an Institutional Accredited Investor that purchased Warrants in the Offering for its own account, or for the account of another Qualified Institutional Buyer or Institutional Accredited Investor, as applicable, for which it exercised sole investment discretion with respect to such original purchase (an “Original Beneficial Purchaser”), will not be required to deliver an opinion of counsel or such other evidence if it exercises those Warrants for its own account or for the account of the Original Beneficial Purchaser, if any, if each of it and such Original Beneficial Purchaser, if any, was a Qualified Institutional Buyer or Institutional Accredited Investor, as applicable, at the time of its purchase and exercise of such Warrants.
From time to time, the Corporation and the Warrant Agent, without the consent of the holders of Warrants, may amend or supplement the Warrant Indenture for certain purposes, including curing defects or inconsistencies or making any change that does not adversely affect the rights of any holder of Warrants. Any amendment or supplement to the Warrant Indenture that is prejudicial to the interests of the holders of the Warrants may only be made by “extraordinary resolution”, which is defined in the Warrant Indenture as a resolution either (1) passed at a meeting of the holders of Warrants at which there are at least two holders of Warrants present in person or represented by proxy representing at least 25% of the aggregate number of the then outstanding Warrants and passed by the affirmative vote of holders of Warrants representing not less than 66⅔% of the aggregate number of all the then outstanding Warrants represented at the meeting and voted on the poll upon such resolution or (2) adopted by an instrument in writing signed by the holders of Warrants representing not less than 66⅔% of the aggregate number of all the then outstanding Warrants.
CERTAIN CANADIAN FEDERAL INCOME TAX CONSIDERATIONS
The following is, as of the date hereof, a summary of the principal Canadian federal income tax considerations generally applicable to a purchaser who acquires Units pursuant to this Offering. For purposes of this summary, references to Common Shares include Unit Shares and Warrant Shares unless otherwise indicated. This summary applies only to a purchaser who is a beneficial owner of Common Shares and Warrants acquired pursuant to this Offering and who, for the purposes of the Tax Act, and at all relevant times: (i) acquires and holds the Common Shares and Warrants as capital property (ii) deals at arm’s length with the Corporation and the Underwriters; and (iii) is not affiliated with the Corporation or the Underwriters (a “Holder”). Common Shares and Warrants will generally be considered to be capital property to a Holder unless the Holder holds such securities in the course of carrying on a business of trading or dealing in securities or has acquired them in one or more transactions considered to be an adventure or concern in the nature of trade.
This summary is not applicable to a Holder: (i) that is a “financial institution” (as defined in the Tax Act) for purposes of the mark-to-market provisions of the Tax Act; (ii) that is a “specified financial institution” as defined in the Tax Act; (iii) that has made a functional currency reporting election under section 261 of the Tax Act to report its “Canadian tax results” as defined in the Tax Act in a currency other than Canadian currency; (iv) an interest in which is, or for whom a Common Share or Warrant would be, a “tax shelter investment” for the purposes of the Tax Act; (v) that is exempt from tax under Part I of the Tax Act (vi) that has entered into or will enter into a "synthetic disposition arrangement" or a “derivative forward agreement” (as those terms are defined in the Tax Act) in respect of Common Shares or Warrants; (vii) that receives dividends on Common Shares under or as part of a “dividend rental arrangement” (as defined in the Tax Act); or (viii) that is a corporation resident in Canada, and is or becomes (or does not deal at arm’s length within the meaning of the Tax Act with a corporation resident in Canada that is or becomes) controlled by a non-resident of Canada for purposes of the “foreign affiliate dumping” rules in section 212.3 of the Tax Act. Such Holders should consult their own tax advisors.
- 21 -
This summary is based upon the current provisions of the Tax Act and the regulations thereunder (“Regulations”) in force as of the date hereof, all specific proposals (“Proposed Amendments”) to amend the Tax Act or the Regulations that have been publicly announced by, or on behalf of, the Minister of Finance (Canada) prior to the date hereof and counsel’s understanding of the current published administrative policies and assessing practices of the Canada Revenue Agency (“CRA”). No assurance can be given that the Proposed Amendments will be enacted or otherwise implemented in their current form, if at all. If the Proposed Amendments are not enacted or otherwise implemented as presently proposed, the tax consequences may not be as described below in all cases. Other than the Proposed Amendments, this summary does not take into account or anticipate any changes in law, administrative policy or assessing practice, whether by legislative, regulatory, administrative, governmental or judicial decision or action, nor does it take into account the tax laws of any province or territory of Canada or of any jurisdiction outside of Canada. Holders that are not residents of Canada for the purposes of the Tax Act should consult with their own tax advisors with respect to the tax consequences of acquiring, holding and disposing of Common Shares and Warrants in any jurisdiction in which they may be subject to tax, including Canada.
This summary is of a general nature only, is not exhaustive of all possible Canadian federal income tax considerations and is not intended to be, nor should it be construed to be, legal or tax advice to any particular Holder. Accordingly, Holders should consult their own tax advisors with respect to their particular circumstances.
Allocation of Cost
A Holder who acquires Units pursuant to this Offering will be required to allocate the purchase price paid for each Unit on a reasonable basis between the Unit Share and one-half Warrant comprising such Unit in order to determine their respective costs to such Holder for the purposes of the Tax Act.
For its purposes, the Corporation has advised counsel that, of the $1.15 subscription price for each Unit, it intends to allocate $1.119 to each Unit Share and $0.031 to each one-half Warrant and believes that such allocation is reasonable. The Corporation’s allocation, however, is not binding on the CRA or on a Holder.
The adjusted cost base to a Holder of each Unit Share comprising a part of a Unit acquired pursuant to this Offering will be determined by averaging the cost of such Unit Shares with the adjusted cost base to such Holder of all other Common Shares (if any) held by the Holder as capital property immediately prior to the acquisition.
Exercise of Warrants
No gain or loss will be realized by a Holder of a Warrant upon the exercise of such Warrant to acquire a Warrant Share. When a Warrant is exercised, the Holder’s cost of the Warrant Share acquired thereby will be equal to the adjusted cost base of the Warrant to such Holder, plus the exercise price paid for the Warrant Share. For the purpose of computing the adjusted cost base to a Holder of each Warrant Share acquired on the exercise of a Warrant, the cost of such Warrant Shares must be averaged with the adjusted cost base to such Holder of all other Common Shares (if any) held by the Holder as capital property immediately prior to the exercise of the Warrant.
Holders Resident in Canada
This section of the summary applies to a Holder who, at all relevant times, is, or is deemed to be, resident in Canada for the purposes of the Tax Act (“Resident Holder”). Certain Resident Holders whose Common Shares might not otherwise qualify as capital property may be entitled to make the irrevocable election provided by subsection 39(4) of the Tax Act to have the Common Shares and every other “Canadian security” (as defined in the Tax Act) owned by such Resident Holder in the taxation year of the election and in all subsequent taxation years deemed to be capital property. Resident Holders should consult their own tax advisors for advice as to whether an election under subsection 39(4) of the Tax Act is available and/or advisable in their particular circumstances. Such election is not available in respect of Warrants.
Expiry of Warrants
In the event of the expiry of an unexercised Warrant, a Resident Holder generally will realize a capital loss equal to the Resident Holder’s adjusted cost base of such Warrant. The tax treatment of capital gains and capital losses is discussed in greater detail below under “Holders Resident in Canada - Taxation of Capital Gains and Capital Losses”.
Dividends
A Resident Holder will be required to include in computing its income for a taxation year any taxable dividends received or deemed to be received on the Common Shares.
- 22 -
In the case of a Resident Holder that is an individual (other than certain trusts), such dividends will be subject to the gross-up and dividend tax credit rules in the Tax Act normally applicable to taxable dividends received from taxable Canadian corporations, including the enhanced dividend tax credit in respect of dividends designated by the Corporation as “eligible dividends”. There may be limitations on the ability of the Corporation to designate dividends as eligible dividends.
In the case of a Resident Holder that is a corporation, the amount of any such taxable dividend that is included in its income for a taxation year will generally be deductible in computing its taxable income for that taxation year. In certain circumstances, subsection 55(2) of the Tax Act will treat a dividend or deemed dividend received by a Resident Holder that is a corporation as a capital gain or proceeds of disposition. Such Resident Holders should consult their own tax advisors in this regard.
A Resident Holder that is a “private corporation” or a “subject corporation”, each as defined in the Tax Act, will generally be liable to pay a refundable tax under Part IV of the Tax Act on dividends received or deemed to be received on the Common Shares to the extent such dividends are deductible in computing the Resident Holder’s taxable income for the year. A “subject corporation” is generally a corporation (other than a private corporation) controlled directly or indirectly by or for the benefit of an individual (other than a trust) or a related group of individuals (other than trusts).
Dispositions of Common Shares and Warrants
A Resident Holder who disposes of or is deemed to have disposed of a Common Share (other than on a disposition to the Corporation that is not a sale in the open market in the manner in which shares would normally be purchased by any member of the public in an open market) or Warrant (other than on the exercise or expiry of a Warrant) will generally realize a capital gain (or capital loss) in the taxation year of the disposition equal to the amount by which the proceeds of disposition of the Common Share or Warrant, as the case may be, net of any reasonable costs of disposition, are greater (or are less) than the adjusted cost base to the Resident Holder of the Common Share or Warrant immediately before the disposition or deemed disposition. Such capital gain (or capital loss) will be subject to the tax treatment described below under “Holders Resident in Canada - Taxation of Capital Gains and Capital Losses”.
Taxation of Capital Gains and Capital Losses
A Resident Holder will generally be required to include in computing its income for the taxation year of disposition, one-half of the amount of any capital gain (a “taxable capital gain”) realized in such year. Subject to and in accordance with the provisions of the Tax Act, a Resident Holder will be required to deduct one-half of the amount of any capital loss (an “allowable capital loss”) against taxable capital gains realized in the taxation year of disposition. Allowable capital losses in excess of taxable capital gains for the taxation year of disposition may be carried back and deducted in any of the three preceding taxation years or carried forward and deducted in any subsequent taxation year against net taxable capital gains realized in such years, to the extent and under the circumstances specified in the Tax Act.
The amount of any capital loss realized on the disposition or deemed disposition of a Common Share by a Resident Holder that is a corporation may, in certain circumstances, be reduced by the amount of dividends received or deemed to have been received by it on such Common Shares to the extent and under the circumstances specified in the Tax Act. Similar rules may apply where a Resident Holder that is a corporation is a member of a partnership or a beneficiary of a trust that owns Common Shares or where a partnership or trust, of which a corporation is a member or a beneficiary, is a member of a partnership or a beneficiary of a trust that owns Common Shares. Resident Holders to whom these rules may be relevant should consult their own tax advisors.
Other Taxes
A Resident Holder that is throughout the relevant taxation year a “Canadian-controlled private corporation” (as defined in the Tax Act) may be liable to pay a refundable tax on its “aggregate investment income” (as defined in the Tax Act) for the year, including taxable capital gains.
In general terms, a Resident Holder that is an individual (other than certain trusts) that receives or is deemed to have received taxable dividends on the Common Shares or realizes a capital gain on the disposition or deemed disposition of Common Shares or Warrants may be liable to pay alternative minimum tax under the Tax Act. Resident Holders should consult their own tax advisors with respect to the application of alternative minimum tax.
- 23 -
Holders Not Resident in Canada
This portion of the summary is generally applicable to a Holder who, at all relevant times, for purposes of the Tax Act: (i) is not, and is not deemed to be, resident in Canada; and (ii) does not use or hold and is not deemed to use or hold the Common Shares or Warrants in connection with carrying on a business in Canada (“Non-Resident Holder”). Special rules, which are not discussed in this summary, may apply to a Non-Resident Holder that is an insurer that carries on, or is deemed to carry on, an insurance business in Canada and elsewhere and such Holders should consult their own tax advisors.
Expiry of Warrants
In the event of the expiry of an unexercised Warrant, a Non-Resident Holder will generally realize a capital loss equal to the Non-Resident Holder’s adjusted cost base of such Warrant. The tax treatment of capital losses by a Non-Resident Holder is discussed in greater detail below under the subheading “Dispositions of Common Shares and Warrants”.
Dividends
Dividends paid or credited or deemed under the Tax Act to be paid or credited by the Corporation to a Non-Resident Holder on Common Shares will be subject to Canadian withholding tax at the rate of 25%, subject to reduction under the provisions of an applicable tax treaty or convention. For example, where a Non-Resident Holder is a resident of the United States, is fully entitled to the benefits under the Canada-United States Tax Convention (1980), as amended, and is the beneficial owner of the dividend, the applicable rate of Canadian withholding tax is generally reduced to 15%, and further reduced to 5% in the case of a Non-Resident Holder that is a company that owns beneficially at least 10% of the voting stock of the Corporation.
Dispositions of Common Shares and Warrants
A Non-Resident Holder will not be subject to tax under the Tax Act in respect of any capital gain realized on a disposition or deemed disposition of a Common Share or Warrant, nor will capital losses arising therefrom be recognized under the Tax Act, unless the Common Share or Warrant (as applicable) is, or is deemed to be, “taxable Canadian property” of the Non-Resident Holder for the purposes of the Tax Act and the Non-Resident Holder is not entitled to an exemption pursuant to the terms of an applicable tax treaty or convention.
Generally, a Common Share or Warrant (as applicable) will not constitute taxable Canadian property of a Non-Resident Holder provided that the Common Shares are listed on a “designated stock exchange” for the purposes of the Tax Act (which currently includes Tiers 1 and 2 of the TSXV), unless at any time during the 60 month period immediately preceding the disposition, (i) at least 25% of the issued shares of any class or series of the capital stock of the Corporation were owned by or belonged to one or any combination of (a) the Non- Resident Holder, (b) persons with whom the Non-Resident Holder did not deal at arm’s length, and (c) partnerships in which the Non-Resident Holder or a person described in (b) holds a membership interest directly or indirectly through one or more partnerships; and (ii) at such time, more than 50% of the fair market value of Common Shares was derived, directly or indirectly, from any combination of real or immovable property situated in Canada, “Canadian resource property” (as defined in the Tax Act), “timber resource property” (as defined in the Tax Act), or options in respect of, interests in, or for civil law rights in such properties, whether or not such property exists. A Common Share or Warrant may also be deemed to be “taxable Canadian property” in certain other circumstances. Non-Resident Holders should consult their own tax advisors as to whether their Common Shares or Warrants constitute “taxable Canadian property” in their own particular circumstances.
In cases where a Non-Resident Holder disposes (or is deemed to have disposed) of a Common Share or Warrant that is taxable Canadian property to that Non-Resident Holder, and the Non-Resident Holder is not entitled to an exemption under an applicable income tax treaty or convention, the consequences described above under the headings “Holders Resident in Canada - Dispositions of Common Shares and Warrants” and “Holders Resident in Canada - Taxation of Capital Gains and Capital Losses” will generally be applicable to such disposition.
Non-Resident Holders whose Common Shares or Warrants are taxable Canadian property should consult their own tax advisors.
- 24 -
PRIOR SALES
Common Shares
The following table summarizes details of the Common Shares issued by the Corporation during the 12-month period prior to the date of this Prospectus.
Date of Issuance | Reason for Issuance | Price ($) | Number of Common Shares | |||||||
September 4, 2019 | Stock Option Exercise | $ | 0.375 | 50,250 | ||||||
September 4, 2019 | Stock Option Exercise | $ | 0.40 | 6,000 | ||||||
January 28, 2020 | Stock Option Exercise | $ | 0.375 | 96,250 | ||||||
April 1, 2020 | Shares for Services(1) | $ | 0.59 | 60,000 | ||||||
April 30, 2020 | Stock Option Exercise | $ | 0.375 | 50,000 | ||||||
May 12, 2020 | Stock Option Exercise | $ | 0.90 | 200,000 | ||||||
May 15, 2020 | Stock Option Exercise | $ | 0.55 | 500 | ||||||
May 22, 2020 | Stock Option Exercise | $ | 0.375 | 150,000 | ||||||
June 1, 2020 | Stock Option Exercise | $ | 0.375 | 20,000 | ||||||
633,000 |
(1) | Issued to SABR Capital Management LLC pursuant to an advisory agreement. |
Warrants |
No warrants were issued by the Corporation during the 12-month period prior to the date of this Prospectus.
Stock Options
The following table summarizes details of the stock options issued by the Corporation during the 12-month period prior to the date of this Prospectus.
Date of Issuance | Security | Price ($)(1) | Number of Securities | |||||||
September 5, 2019(2) | Stock options | $ | 0.72 | 1,000,000 | ||||||
September 19, 2019(3) | Stock options | $ | 0.83 | 200,000 | ||||||
January 8, 2020(4) | Stock options | $ | 1.10 | 100,008 | ||||||
1,300,008 |
(1) | Exercise price of the stock options. |
(2) | Expire September 5, 2029. |
(3) | Expire September 19, 2029. |
(4) | Expire December 31, 2024. |
- 25 -
TRADING PRICE AND VOLUME
Common Shares
The outstanding Common Shares are traded on the TSXV under the trading symbol “PTQ”. The following table sets forth the reported intraday high and low prices and monthly trading volumes of the Common Shares for the 12-month period prior to the date of this Prospectus.
Month |
High (C$) |
Low ($) |
Volume | |||||||||
June 1-24, 2020 | 1.35 | 1.15 | 13,023,623 | |||||||||
May 2020 | 1.33 | 0.92 | 10,347,218 | |||||||||
April 2020 | 0.99 | 0.55 | 6,976,080 | |||||||||
March 2020 | 0.77 | 0.47 | 5,962,085 | |||||||||
February 2020 | 0.95 | 0.69 | 3,627,659 | |||||||||
January 2020 | 1.05 | 0.89 | 2,966,666 | |||||||||
December 2019 | 1.04 | 0.91 | 2,878,179 | |||||||||
November 2019 | 1.19 | 0.95 | 4,194,520 | |||||||||
October 2019 | 1.08 | 0.78 | 4,152,448 | |||||||||
September 2019 | 0.90 | 0.70 | 2,329,659 | |||||||||
August 2019 | 0.87 | 0.69 | 3,978,281 | |||||||||
July 2019 | 0.82 | 0.73 | 1,854,224 | |||||||||
June 2019 | 0.86 | 0.66 | 3,042,073 |
At the close of business on June 24, 2020, being the date of this Prospectus, the price of the Common Shares as quoted by the TSXV was $ 1.21.
2019 Debentures
The 2019 Debentures are listed and posted for trading on the TSXV under the symbol “PTQ.DB.A”. The following table sets out the monthly market price range and trading volume of the 2019 Debentures on the TSXV for the 12-month period prior to the date of this Prospectus.
Month |
High (C$) |
Low ($) |
Volume | |||||||||
June 1-24, 2020 | 110.00 | 102.50 | 211,000 | |||||||||
May 2020 | 104.00 | 89.98 | 64,000 | |||||||||
April 2020 | 90.00 | 80.17 | 975,000 | |||||||||
March 2020 | 87.00 | 81.00 | 43,000 | |||||||||
February 2020 | 100.00 | 96.19 | 100,000 | |||||||||
January 2020 | 99.10 | 98.00 | 87,000 | |||||||||
December 2019 | 102.00 | 90.00 | 262,000 | |||||||||
November 2019 | 105.00 | 99.00 | 179,000 | |||||||||
October 2019 | 100.00 | 93.05 | 550,000 | |||||||||
September 2019 | 93.00 | 91.50 | 31,000 | |||||||||
August 2019 | 105.00 | 90.60 | 181,000 | |||||||||
July 2019(1) | 95.00 | 90.00 | 146,000 | |||||||||
June 2019(1) | - | - |
(1) | The 2019 Debentures commenced trading on July 9, 2019. |
At the close of business on June 24, 2020, being the date of this Prospectus, the price of the Debentures as quoted by the TSXV was $103.10.
- 26 -
RISK FACTORS
An investment in the Units should be considered highly speculative and involves significant risks due to the nature of the Corporation’s business, the status of its properties, option agreements, commercial arrangements and the use commercially unproven processing technologies. Any prospective investor should review and carefully consider all of the information contained and incorporated by reference in this Prospectus before purchasing any of the Units distributed under this Prospectus. The risks described herein are not the only risk factors facing the Corporation and should not be considered exhaustive. Additional risks and uncertainties not currently known to the Corporation, or that the Corporation currently considers immaterial, may also materially and adversely affect the business, operations and condition, financial or otherwise, of Protech.
These risk factors, together with all other information included or incorporated by reference in this Prospectus, including, without limitation, information contained in the section “Cautionary Note Regarding Forward-Looking Statements” as well as the risk factors set out below, should be carefully reviewed and considered by investors.
Some of the factors described herein, in the documents incorporated or deemed incorporated by reference herein are interrelated and, consequently, investors should treat such risk factors as a whole. If any of the adverse effects set out in the risk factors described herein, or in another document incorporated or deemed incorporated by reference herein occur, it could have a material adverse effect on the business, financial condition and results of operations of the Corporation. Additional risks and uncertainties of which the Corporation currently is unaware of or that are unknown or that it currently deems to be immaterial could have a material adverse effect on the Corporation’s business, financial condition and results of operations. The Corporation cannot provide assurance that it will successfully address any or all of these risks. There is no assurance that any risk management steps taken will avoid future loss due to the occurrence of the adverse effects set out in the risk factors herein, or in the other documents incorporated or deemed incorporated by reference herein or other unforeseen risks.
Risks Associated with the Common Shares and the Offering
Discretion in the Use of Proceeds
The Corporation intends to spend the funds available as stated in this Prospectus. However, there may be circumstances where, for sound business reasons, a reallocation of funds may be deemed prudent or necessary. In such circumstances, the net proceeds will be reallocated at the Corporation’s sole discretion.
Management will have discretion concerning the use of proceeds of the Offering and the Concurrent Private Placement as well as the timing of their expenditures. As a result, an investor will be relying on the judgment of management for the application of the proceeds of the Offering and the Concurrent Private Placement. Management may use the net proceeds of the Offering and the Concurrent Private Placement in ways that an investor may not consider desirable. The results and the effectiveness of the application of the proceeds are uncertain. If the proceeds are not applied effectively, the Corporation’s results of operations may suffer.
Trading Price for the Common Shares is Volatile
The Common Shares are currently listed and posted for trading on the TSXV. Securities of small-cap and healthcare companies have experienced substantial volatility in the past, often based on factors unrelated to the financial performance or prospects of the companies involved. These factors include macroeconomic developments in North America and globally, and market perceptions of the attractiveness of particular industries. The price of the Common Shares is also likely to be significantly affected by short-term changes in cost of goods, or in financial condition or results of operations of the Corporation. Other factors unrelated to the performance of the Corporation that may have an effect on the price of the Common Shares include the following: the extent of analytical coverage available to investors concerning the business of the Corporation may be limited if investment banks with research capabilities do not follow the Corporation’s securities; lessening in trading volume and general market interest in the Corporation’s securities may affect an investor’s ability to trade significant numbers of the Common Shares; the size of the Corporation’s public float may limit the ability of some institutions to invest in the Corporation’s securities; a substantial decline in the price of the Common Shares that persists for a significant period of time could cause the Corporation’s securities, if listed on an exchange, to be delisted from such exchange, further reducing market liquidity; adverse changes in general market or industry conditions or economic trends; the COVID-19 pandemic, or a variety of other factors.
- 27 -
As a result of any of these factors, the market price of the Common Shares at any given point in time may not accurately reflect the long-term value of the Corporation. Securities class-action litigation often has been brought against companies following periods of volatility in the market price of their securities. The Corporation may in the future be the target of similar litigation. Securities litigation could result in substantial costs and damages and divert management’s attention and resources.
Future Sales of Shares by Shareholders
Sales of a large number of the Common Shares in the public markets, or the potential for such sales, could decrease the trading price of the Common Shares and could impair the Corporation’s ability to raise capital through future sales of the Common Shares. The Corporation cannot predict the effect that future sales of Common Shares or other equity-related securities would have on the market price of the Common Shares. The price of the Common Shares could be affected by possible sales of the Common Shares by hedging or arbitrage trading activity. If the Corporation raises additional funding by issuing additional equity securities, such financing may substantially dilute the interests of shareholders of the Corporation and reduce the value of their investment.
Holders of Common Shares will be Diluted
The Corporation may issue additional securities in the future, which may dilute a shareholder’s holdings in the Corporation. The Corporation’s articles permit the issuance of an unlimited number of Common Shares, and shareholders will have no pre-emptive rights in connection with such further issuance. The directors of the Corporation have discretion to determine the price and the terms of further issuances. Moreover, additional Common Shares will be issued by the Corporation on the exercise of options under the Corporation’s stock option plan and upon the exercise of outstanding warrants, including the Warrants and the Broker Warrants.
Global financial conditions can reduce share prices and limit access to financing
The economic viability of the Corporation’s business plan is impacted by the Corporation’s ability to obtain financing. Global economic conditions impact the general availability of financing through public and private debt and equity markets, as well as through other avenues.
Significant political, market and economic events may have wide-reaching effects and, to the extent they are not accurately anticipated or priced into markets, may result in sudden periods of market volatility and correction. Periods of market volatility and correction may have an adverse impact on economic growth and outlook, as well as lending and capital markets activity, all of which may impact the Corporation’s ability to secure adequate financing on favourable terms, or at all.
Furthermore, general market, political and economic conditions, including, for example, inflation, interest and currency exchange rates, political developments, legislative or regulatory changes, social or labour unrest and stock market trends will affect the Corporation’s operating environment and its operating costs, profit margins and share price. Uncertainty or adverse changes relating to government regulation, economic and foreign policy matters, and other world events have the potential to adversely affect the performance of and outlook for the Canadian and global economies, which in turn may affect the ability of the Corporation to access financing on favourable terms or at all. For example, recent uncertainty regarding Canada’s ability to access North American markets via the North American Free Trade Agreement and increased levels of turmoil in certain geopolitical hotspots have the potential to increase uncertainty and volatility in Canadian and global markets, respectively. The occurrence of negative sentiment or events in the Canadian and broader global economy could have a material adverse effect on the Corporation’s business, financial condition, results of operations, cash flows or prospects.
No Market for Warrants
The Warrants constitute a new issue of securities of the Corporation. There is currently no market through which the Warrants may be sold and purchasers of Units may not be able to resell the Warrants purchased under this Prospectus. The Corporation does not plan to apply to list the Warrants on the TSXV or any other securities exchange or other trading system. No assurance can be given as to whether an active trading market will develop or be maintained for the Warrants. To the extent that an active trading market for the Warrants does not develop or fails to be sustained, the liquidity and trading prices for the Warrants may be adversely affected. The market price of the Warrants will be based on a number of factors, including but not limited to: (i) the markets for similar securities; (ii) the financial condition, results of operations and prospects of the Corporation; (iii) the market price and volatility of the Common Shares; (iv) changes in the industry in which the Corporation operates and competition affecting the Corporation; and (v) general market and economic conditions. Purchasers may not be able to resell Warrants purchased under this Prospectus. This may affect the pricing of the Warrants in the secondary market, the transparency and availability of trading prices, the liquidity of these securities and the extent of issuer regulation.
Warrants are Speculative
The Warrants do not confer any rights of common share ownership on their holders, such as voting rights or the right to receive dividends, but rather merely represent the right to acquire Common Shares at a fixed price for a limited period of time. Specifically, commencing on the date of issuance, holders of the Warrants may exercise their right to acquire Common Shares and pay an exercise price of $1.60 per Common Share, prior to 12 months following the Closing Date, after which date any unexercised Warrants will expire and have no further value. Moreover, following completion of the Offering, the market value of the Warrants, if any, is uncertain and there can be no assurance that the market value of the Warrants will equal or exceed their imputed offering price. There can be no assurance that the market price of the Common Shares will ever equal or exceed the exercise price of the Warrants, and consequently, whether it will ever be profitable for holders of the Warrants to exercise the Warrants.
- 28 -
Return on Investment
There is no guarantee that an investment in the Unit Shares or Warrants comprising the Units will earn any positive return in the short or long term. No dividends on the Common Shares have been paid to date. A purchase of Units under the Offering involves a high degree of risk and should be undertaken only by investors whose financial resources are sufficient to enable them to assume such risks and who have no need for immediate liquidity in their investment.
Future Sales or Issuances of Securities
The Corporation may issue additional securities to finance future activities outside of the Offering and the Concurrent Private Placement. The Corporation’s articles permit the issuance of an unlimited number of Common Shares, and shareholders will have no pre-emptive rights in connection with such further issuances. The directors of the Corporation have discretion to determine the price and the terms of further issuances. Moreover, additional Common Shares will be issued by the Corporation on any exercise of options or other security-based compensation awards outstanding. The Corporation cannot predict the size of future issuances of securities or the effect, if any, that future issuances and sales of securities will have on the market price of the Common Shares. Sales or issuances of substantial numbers of Common Shares, or the perception that such sales could occur, may adversely affect prevailing market prices of the Common Shares. In connection with any issuance of Common Shares, investors will suffer dilution to their voting power and the Corporation may experience dilution in its earnings per share.
Dividends
The Corporation has never declared or paid any dividends on its Common Shares. The Corporation intends, for the foreseeable future, to retain tis future earnings, if any, to finance our business activities. The payment of future dividends, if any, will be reviewed periodically by the Corporation’s Board of Directors and will depend upon, among other things, conditions then existing including earnings, financial conditions, cash on hand, financial requirements to fund business activities, development and growth, and other factors that the Board of Directors may consider appropriate in the circumstances.
Risks Relating to the Corporation
Prior to making an investment decision, prospective purchasers of Units should carefully consider the information described in this Prospectus and the documents incorporated or deemed incorporated by reference herein. There are certain risks inherent in an investment in the Units, including the factors described under the heading “Risks Factors” in the Annual Information Form for the year ended September 30, 2019 and any other risk factors described in this Prospectus or in a document incorporated or deemed incorporated by reference in this Prospectus, which investors should carefully consider before investing.
Limited History of Operations
The Corporation has a limited history of operations. There can be no assurance that the business of the Corporation and/or its subsidiaries will be successful and generate, or maintain, any profit.
- 29 -
Novel Business Model
Home monitoring of patients on anticoagulants is a relatively new business, making it difficult to predict market acceptance, development, expansion and direction. The home monitoring services to be provided by the Corporation represent a relatively new development in the United States healthcare industry. Accordingly, adoption by patients and physicians can require education, which can result in a lengthy sales cycle. The market may take time to develop. Physicians and/or patients may be slow to adopt new methods. The development of the Corporation’s home monitoring business is dependent on a number of factors. These factors include: the Corporation’s ability to differentiate the Corporation’s services from those of the Corporation’s competitors; the extent and timing of the acceptance of the Corporation’s services as a replacement for, or supplement to, traditional methods of servicing and monitoring patients; the effectiveness of the Corporation’s sales and marketing and engagement efforts with customers and their health plan participants; the Corporation’s ability to provide quality customer service, as perceived by patients and physicians.
Because the monitoring business is evolving, the Corporation may not be able to anticipate and adapt to the developing market. Moreover, the Corporation cannot predict with certainty the future growth rate or the ultimate size of the market.
Reimbursement Rates May Decline
Reimbursement for services to be provided by the Corporation come primarily from Medicare and private health insurance companies. The reimbursement rates offered are outside the control of the Corporation. Reimbursement rates in this area, and much of the United States health care market in general, have been subject to continual reductions as health insurers and governmental entities attempt to control health care costs. The extent and timing of any reduction in reimbursement rates cannot be predicted by the Corporation.
Reductions in reimbursement rates can have a material impact on the profitability of the Corporation’s operations. A reduction in reimbursement may be unrelated to any concurrent decline in the cost of operations, thereby resulting in reduced profitability. The Corporation’s costs of operations could increase, but the cost increases may not be passed on to customers because reimbursement rates are set without regard to the cost of service.
Loss of Competitive Bids
On the reimbursement front, the Centers for Medicare & Medicaid Services (“CMS”) oversees a competitive bidding program covering durable medical equipment (“DME”), the process in which a Medicare supplier provides DME products to Medicare beneficiaries. Pursuant to the CMS, beginning in 2021, a new competitive bidding process known as Round 2021 will be launched by the CMS, covering contracts running from January 1, 2021 to December 31, 2023. It is possible that the Corporation may not be selected in some or all the Competitive Bidding Area (“CBA”) that is has bid for. It is also possible that the Corporation may not be selected for some or all of the product categories that it has bid more. Non-selection for CBA and/or product category may result in loss of revenue and referral sources.
Dependence Upon Relationships with Key Suppliers
There are few manufacturers of equipment which can be used for home monitoring of patients on anticoagulants. There is the possibility that a new meter will encounter difficulties or “bugs” when first sent to market, and that initial technical support costs may be higher than for more well-established meters. Even if the Corporation switches to other competing meters, they may also encounter technical difficulties or regulatory issues. The emerging nature of the market presents risks that suppliers may not be able to provide equipment to satisfy demand. Demand may outstrip supply, leading to equipment shortages. Conversely, incorrect demand forecasting could lead to excess inventory. The industry is subject to a high level of regulatory scrutiny, and government or manufacturer recalls could adversely affect the Corporation’s ability to provide monitoring services and achieve revenue targets.
Inadequate supply could impair the Corporation’s ability to attract new business and could create upward pricing pressure on equipment and supplies, adversely affecting margins for the Corporation. Several equipment manufacturers are pursuing a strategy of vertical integration, and should the Corporation ever need to order equipment from those manufacturers, such equipment may not be available on favourable terms.
- 30 -
Reliance Upon Few Payers
The Corporation earns revenues by seeking reimbursement from Medicare and private health insurance companies, with the Medicare program of the United States government being the primary entity making payments. If the Medicare program were to slow payments of the Corporation receivables for any reason, the Corporation would be adversely impacted. In addition, both governmental and private health insurance companies may seek ways to avoid or delay reimbursement, which could adversely affect cash flow and revenues for the Corporation.
Government Regulation
Some operations of the Corporation require certain licences and permits from the authorities in the United States. The ability of the Corporation and its subsidiaries to obtain, sustain or renew any such licences and permits on acceptable terms is subject to changes in regulations and policies and to the discretion of the applicable authorities or other governmental agencies. There is no guarantee that the Corporation will meet these conditions.
The Corporation is subject to regulation from United States federal and state authorities. Regulatory action could disrupt the Corporation’s ability to provide services. Such regulatory action could come in the form of actions against manufacturers, unrelated to the Corporation’s conduct, or actions based upon the Corporation’s operation. Regulatory action could prevent or delay reimbursement for certain services.
There could also be legislative action that could adversely affect the Corporation’s business model, including, without limitation: a decision by the United States government to become the exclusive provider of health care services at some time in the future; changes in United States federal or state laws, rules, and regulations, including those governing the corporate practice of medicine, and fee splitting; and changes in the United States Anti-Kickback Statute and Stark Law and/or similar state laws, rules, and regulations. Conversely, budgetary problems in the United States could lead to reduced funding, substantial modification or elimination of Medicare programs, which would end reimbursement for many patients. There can be no assurance that new rules and regulations will not be enacted or that existing rules and regulations will not be applied in a manner which could limit or curtail the business of the Corporation. Amendments to current laws and regulations could have a substantial adverse impact on the Corporation.
CMS policies of health insurance for Medicare in the United States may affect the amount of revenue the Corporation receives. The Corporation is subject to risk that reimbursement rates for its services from both federal and private payers will decline over time. Reimbursement from federal programs is subject to constant regulatory review and increasing audits by federal authorities, the effect of which may be to increase costs of service and delay or affect reimbursement, which could negatively impact cash flow and/or revenue. Audits may be costly and time consuming, and could delay cash flow, even if the Corporation acted properly in all respects.
The policies of health insurance carriers in the United States may affect the amount of revenue the Corporation receives.
Highly Competitive Market
The industry in which the Corporation operations is a highly competitive market and may become more competitive as new players enter. Certain competitors will be subsidiaries or divisions of larger, much better capitalized companies. Certain competitors will have vertically integrated manufacturing and services sectors of the market. The Corporation may have less capital and may encounter greater operational challenges in serving the market. Better capitalized competitors may also be expected to borrow money or raise debt to purchase equipment more easily than the Corporation.
New Drug Discovery
Current anticoagulants have been on the market for many years. New pharmaceutical compounds could be discovered and approved for sale that do not require monitoring of coagulation levels in patients, making home monitoring unnecessary at some point in the future.
Technological advances in patient care, improved pharmaceutical products that do not require anticoagulation monitoring or with lesser side effects and technological advances in equipment or changes in patient management practices could severely reduce demand for the Corporation’s services. The United States Food and Drug Administration (“FDA”) has already approved three drugs where no anticoagulation monitoring is mandated, and there may be additional approvals in the future. In addition, the approved drugs may gain market share over time. There may also be advances in or FDA approval of medical devices designed to manage anticoagulation.
- 31 -
Low Profit Market Segments
Where the Corporation provides services to a patient who does not use a meter often or for an extended period of time, profitability may be unlikely in respect of that patient. Also, certain patients may have a personal preference to travel to a lab for testing rather than self-testing. In these cases, the Corporation may not have a meter with the patient long enough to recoup costs. Where the Corporation owns the meter, the failure of the patient to return the meter to the Corporation may impact profitability. Legal costs of bringing an action to obtain return of a meter may exceed the value of the machine, leading to losses with certain patient populations even under a favourable reimbursement environment.
Foreign Subsidiaries
The Corporation conducts all of its operations through its United States subsidiaries. Therefore, to the extent of these holdings, the Corporation (directly and indirectly) is dependent on the cash flows of these subsidiaries to meet its obligations. The ability of such subsidiaries to make payments to their parent companies may be constrained by the following factors: the level of taxation, particularly corporate profits and withholding taxes, in the jurisdiction in which each subsidiary operates; and the introduction of exchange controls or repatriation restrictions or the availability of hard currency to be repatriated.
Attraction and Retention of Key Personnel Including Directors
The Corporation has a small management team and the loss of a key individual or inability to attract suitably qualified staff could have a material adverse impact on the business of the Corporation. The Corporation may also encounter difficulties in obtaining and maintaining suitably qualified staff. The success of the Corporation depends on the ability of management to interpret market data correctly and to interpret and respond to economic, market and other conditions in order to locate and adopt appropriate opportunities. No assurance can be given that individuals with the required skills will continue employment with the Corporation or that replacement personnel with comparable skills can be found. The Corporation is dependent on the services of key executives, including the Board of Directors of the Corporation and a small number of highly skilled and experienced executives and personnel. Due to the relatively small size of the Corporation, the loss of these persons or the Corporation’s inability to attract and retain additional highly skilled employees may adversely affect its business and future operations.
Growth Management
The Corporation may have difficulty identifying or acquiring suitable acquisition targets and maintaining the organic growth which is a significant aspect of its business model. If it is unable to manage growth, the Corporation may be unable to achieve its expansion strategy, which could adversely impact its earnings per share and its revenue and profits.
Potential Conflicts of Interest
There are potential conflicts of interest to which some of the directors and officers of the Corporation may be subject in connection with the operations of the Corporation and situations may arise where the directors and officers may be in direct competition with the Corporation. Conflicts of interest, if any, which arise may be subject to and be governed by procedures prescribed by the Business Corporations Act (British Columbia) (“BCBCA”) which require a director or officer of a corporation who is a party to or is a director or an officer of or has a material interest in any person who is a party to a material contract or proposed material contract with the Corporation to disclose his interest and to refrain from voting on any matter in respect of such contract unless otherwise permitted under the BCBCA. Any decision made by any of such directors and officers involving the Corporation should be made in accordance with their duties and obligations to deal fairly and in good faith with a view to the best interests of the Corporation and its shareholders.
Insurance and Uninsured Risks
The Corporation’s business is subject to a number of risks and hazards generally, including general liability. Such occurrences could result in damage to property, inventory, facilities, personal injury or death, damage to the properties of the Corporation, or the properties of others, monetary losses and possible legal liability.
- 32 -
The Corporation may be subject to product liability and medical malpractice claims, which may adversely affect its operations. The industry in which the Corporation operates is highly regulated, and it may be subject to regulatory scrutiny for violations of regulations and laws. The Corporation could be adversely affected by the time and cost involved with regulatory investigations even if it has operated in compliance with all laws. Investigations could also adversely affect the timely payment of receivables.
Although the Corporation maintains insurance to protect against certain risks in such amounts as it considers to be reasonable, its insurance will not cover all the potential risks associated with its operations. The Corporation may also be unable to maintain insurance to cover these risks at economically feasible premiums. Insurance coverage may not continue to be available or may not be adequate to cover any resulting liability. The Corporation might also become subject to liability which may not be insured against or which the Corporation may elect not to insure against because of premium costs or other reasons. Losses from these events may cause the Corporation to incur significant costs that could have a material adverse effect upon its financial performance and results of operations.
Loss of Foreign Private Issuer Status
The Corporation may lose its “foreign private issuer” status in the future, which could result in significant additional costs and expenses. As a “foreign private issuer,” as defined in Rule 3b-4 under the United States Securities Exchange Act of 1934, as amended (the “Exchange Act”), the Corporation is currently exempt from certain of the provisions of the U.S. federal securities laws. For example, an issuer with total assets in excess of US$10 million and whose outstanding equity securities are held by 2,000 or more persons, or 500 or more persons who are not “accredited investors”, must register such securities as a class under the Exchange Act. However, as a foreign private issuer subject to Canadian continuous disclosure requirements, the Corporation may claim the exemption from registration under the Exchange Act provided by Rule 12g3-2(b) thereunder, even if these thresholds are exceeded. To be considered a foreign private issuer, the Corporation must satisfy a United States shareholder test (not more than 50% of the voting securities of a company must be held by residents of the United States) if any of the following disqualifying conditions apply: (i) the majority of the Corporation’s executive officers or directors are United States citizens or residents; (ii) more than 50 percent of the Corporation’s assets are located in the United States; or (iii) the Corporation’s business is administered principally in the United States. If the Corporation loses its status as a foreign private issuer, these regulations could apply and it could also be required to commence reporting on forms required of U.S. domestic companies, such as Forms 10-K, 10-Q and 8-K, and prepare its financial statements in accordance with U.S. generally accepted accounting principles (GAAP) rather than IFRS. It could also become subject to U.S. proxy rules, and certain holders of its equity securities could become subject to the insider reporting and “short swing” profit rules under Section 16 of the Exchange Act. In addition, any securities issued by the Corporation if it loses foreign private issuer status would become subject to certain rules and restrictions under the U.S. Securities Act, even if they are issued or resold outside the United States. Compliance with the additional disclosure, compliance and timing requirements under these securities laws would likely result in increased expenses and would require the Corporation’s management to devote substantial time and resources to comply with new regulatory requirements.
United States Operations and Exchange Rate Fluctuations
All of the Corporation’s revenue is generated from operations in the United States. The Corporation is subject to a number of risks associated with its operations that may increase liability and costs and require significant management attention. These risks include: compliance with laws of the United States that apply to the Corporation’s United States operations, including lawful access, privacy laws and anti-corruption laws; instability in economic or political conditions, including inflation, recession and political uncertainty; potential adverse tax consequences; and litigation in United States courts.
In addition, the Corporation is exposed to foreign exchange risk as a result of substantially all of its revenue generating operations taking place in the United States and thus, revenues and expenses being earned and paid in United States dollars while the Corporation reports its financial statements in Canadian dollars. If the Canadian dollar appreciates relative to the United States dollar, the Corporation’s Canadian dollar expenses and revenues will decrease when translated from United States dollars for financial reporting purposes. Conversely, if the Canadian dollar depreciates relative to the United States dollar, the Corporation’s Canadian dollar expenses and revenues will increase when translated from United States dollars for financial reporting purposes. In addition, exchange rate fluctuations may affect the costs that the Corporation incurs in its operations. The appreciation of non-United States dollar currencies against the United States dollar can increase the cost of operations in United States dollar terms. Foreign exchange rate fluctuations may materially affect the Corporation’s financial condition and results of operations in future periods.
- 33 -
The Corporation will continue to translate the assets and liabilities of its United States dollar functional currency subsidiaries into Canadian dollars using exchange rates in effect at the end of each period. Revenue and expenses for these subsidiaries are translated using average exchange rates that approximate those in effect during the period. The Corporation will continue to maintain cash balances in both United States and Canadian dollars, but management anticipates that it will not purchase any securities or financial instruments to speculate on or hedge against a rise or fall in the value of the United States dollar.
Cybersecurity
The Corporation relies on digital and internet technologies to conduct and expand its operations, including reliance on information technology to process, transmit and store sensitive and confidential data, including protected health information, personally identifiable information, and proprietary and confidential business performance data. As a result, the Corporation and/or its customers are exposed to risks related to cybersecurity. Such risks may include unauthorized access, use, or disclosure of sensitive information, corruption or destruction of data, or operational disruption resulting from system impairment (e.g., malware). The Corporation’s operations depend, in part, on how well it protects networks, equipment, information technology systems and software against damage from a number of threats, including, but not limited to damage to hardware, computer viruses, hacking and theft. The Corporation’s operations also depend on the timely maintenance, upgrade and replacement of networks, equipment, information technology systems and software, as well as pre-emptive expenses to mitigate the risks of failures. A compromise of the Corporation’s information technology or confidential information, or that of the Corporation’s patients and third parties with whom the Corporation interacts, may result in negative consequences, including the inability to process patient transactions, reputational harm affecting patient and/or investor confidence, potential liability under privacy, security, consumer protection or other applicable laws, regulatory penalties and additional regulatory scrutiny, any of which could have a material adverse effect on the Corporation’s business, financial position, results of operations or cash flows. As the Corporation has access to sensitive and confidential information, including personal information and personal health information, and since the Corporation may be vulnerable to material security breaches, theft, misplaced, lost or corrupted data, programming errors, employee errors and/or malfeasance (including misappropriation by departing employees), there is a risk that sensitive and confidential information, including personal information and personal health information, may be disclosed through improper use of Corporation systems, software solutions or networks or that there may be unauthorized access, use, disclosure, modification or destruction of such information. The Corporation’s ongoing risk and exposure to these matters is partially attributable to the evolving nature of these threats. As a result, cybersecurity and the continued development and enhancement of controls, processes and practices designed to protect systems, computers, software, data and networks from attack, damage, malfunction, human error, technological error or unauthorized access is a priority. While the Corporation has adopted various measures in an effort to curb cybersecurity risks, there is no guarantee that such measures will be effective. In addition, as cyber threats continue to evolve, the Corporation may be required to expend additional resources to continue to modify or enhance protective measures or to investigate and remediate any security vulnerabilities.
Global Economy
Recent market events and conditions, including disruptions in the international credit markets and other financial systems and the deterioration of global economic conditions, could impede the Corporation’s access to capital or increase the cost of capital. Notwithstanding various actions by the United States and foreign governments, concerns about the general condition of the capital markets, financial instruments, banks, investment banks, insurers and other financial institutions caused the broader credit markets to deteriorate and stock markets to fluctuate substantially.
These disruptions in the current credit and financial markets have had a significant material adverse impact on a number of financial institutions and have limited access to capital and credit for many companies. These disruptions could, among other things, make it more difficult for the Corporation to obtain, or increase its cost of obtaining, capital and financing for its operations. Access to additional capital may not be available to the Corporation on terms acceptable to it, or at all.
COVID-19 Pandemic
On March 11, 2020, the World Health Organization declared the outbreak of a novel strain of coronavirus (“COVID-19”) a global pandemic. In response to the outbreak, governmental authorities in the United States and internationally have introduced various recommendations and measures to try to limit the pandemic, including travel restrictions, border closures, non-essential business closures, quarantines, self-isolations, shelters-in-place, and social distancing. The COVID-19 outbreak and the response of governmental authorities to try to limit it are having a significant impact on the private sector and individuals, including unprecedented business, employment, and economic disruptions.
- 34 -
The continued spread of COVID-19 nationally and globally could have an adverse impact on the Corporation’s business, operations and financial results, including through disruptions in our labour inputs, supply chains and sales channels. In response to COVID-19, the United States’ guidelines issued on March 16, 2020 specifically noted that healthcare services were a critical infrastructure industry as defined by the Department of Homeland Security and employees of companies in this industry have a social responsibility to maintain a normal work schedule to meet service demands. In response to the COVID-19 pandemic, the Corporation has modified its current policies and implemented the instructions provided by the Centers for Disease Control and Prevention in order to best protect its employees and patient network. In addition, the Corporation accelerated inventory purchases to safeguard against any potential future supply chain weaknesses and meet potential increased demand. These measures and similar measures taken by other businesses may adversely impact the Corporation’s labour productivity and its supply chains.
Although the Corporation has taken steps to mitigate the impact of COVID-19, the continued presence and spread of COVID-19 nationally and globally could have a material adverse impact on the Corporation’s business, operations, and financial results and position, including through employee attrition, disruptions to the Corporation’s supply chains and sales channels, restrictions of operations at our retail stores, changes in the number of Americans with health insurance resulting in a change in demand for the Corporation’s products, as well as a deterioration of general economic conditions including a possible national or global recession. Due to the speed with which the COVID-19 situation is developing and the uncertainty of its magnitude, outcome, and duration, it is not possible to estimate its impact on the Corporation’s business, operations, financial results and position or prospects at this time.
The Corporation continues to monitor the situation and work with its stakeholders (including customers, employees, and suppliers) in order to assess further possible implications to its business, supply chain, and customers, and, where practicable, mitigate adverse consequences and responsibly address this global pandemic.
Finally, the actual and threatened spread of COVID-19 globally could adversely affect global economies and financial markets, resulting in a prolonged economic downturn and a decline in the value of the Corporation’s share price. The extent to which COVID19 (or any other disease, epidemic, or pandemic) impacts business activity or financial results, and the duration of any such negative impact, will depend on future developments, which are highly uncertain and cannot be predicted, including new information which may emerge concerning COVID-19 and the actions required to contain or treat its impact, among others.
INTEREST OF EXPERTS
Each of DLA Piper (Canada), LLP, counsel for the Corporation, and Bennett Jones LLP, counsel for the Underwriters, have provided its opinion on certain matters contained in this Prospectus. As of the date hereof, partners and associates of DLA Piper (Canada) LLP and Bennett Jones LLP each as a group, own, directly or indirectly, in the aggregate, less than 1% or no securities of the Corporation.
AUDITORS
MNP LLP is the independent auditor of the Corporation and is independent of the Corporation within the meaning of the Code of Professional Conduct of the Chartered Professional Accountants of British Columbia.
STATUTORY RIGHTS OF WITHDRAWAL AND RESCISSION
Securities legislation in certain of the provinces of Canada provides purchasers with the right to withdraw from an agreement to purchase securities. This right may be exercised within two business days after receipt or deemed receipt of a prospectus and any amendment. In several of the provinces of Canada, the securities legislation further provides a purchaser with remedies for rescission or, in some jurisdictions, revision of the price or damages if the prospectus and any amendment contains a misrepresentation or is not delivered to the purchaser, provided that the remedies for rescission, revision of the price or damages are exercised by the purchaser within the time limit prescribed by the securities legislation of the purchaser’s province. The purchaser should refer to any applicable provisions of the securities legislation of the purchaser’s province for the particulars of these rights or consult with a legal adviser.
In an offering of Warrants, investors are cautioned that the statutory right of action for damages for a misrepresentation contained in a prospectus is limited, in certain provincial securities legislation, to the price at which the Warrant is offered to the public under the prospectus offering. This means that, under the securities legislation of certain provinces, if the purchaser pays additional amounts upon conversion, exchange or exercise of the security, those amounts may not be recoverable under the statutory right of action for damages that applies in those provinces. The purchaser should refer to any applicable provisions of the securities legislation of the purchaser’s province for the particulars of this right of action for damages or consult with a legal adviser.
- 35 -
CERTIFICATE OF THE CORPORATION
Dated: June 24, 2020
This short form prospectus, together with the documents incorporated by reference, constitutes full, true and plain disclosure of all material facts relating to the securities offered by this short form prospectus as required by the securities legislation of British Columbia, Alberta and Ontario.
“Gregory Crawford” | “Hardik Mehta” | |
By: (Signed) Gregory Crawford | By: (Signed) Hardik Mehta | |
Chief Executive Officer | Chief Financial Officer |
On behalf of the Board of Directors
“Mark Greenberg” | “Eugene Ewing” | |
By: (Signed) Mark Greenberg | By: (Signed) Eugene Ewing | |
Director | Director |
CERTIFICATE OF THE UNDERWRITERS
Dated: June 24, 2020
To the best of our knowledge, information and belief, this short form prospectus, together with the documents incorporated by reference, constitutes full, true and plain disclosure of all material facts relating to the securities offered by this short form prospectus as required by the securities legislation of British Columbia, Alberta and Ontario.
BEACON SECURITIES LIMITED |
By: (Signed) “Stephen J. A. Delaney” |
CANACCORD GENUITY CORP. |
By: (Signed) "Steve Winokur" |
ECHELON WEALTH PARTNERS INC. |
By: (Signed) "Michael Lorimer" |
STIFEL NICOLAUS CANADA INC. | INDUSTRIAL ALLIANCE SECURITIES INC. |
By: (Signed) "Matt Gaasenbeek" | By: (Signed) " John Rak" |
M PARTNERS INC. |
By: (Signed) " Steven Isenberg" |
Exhibit 99.45
PROTECH HOME MEDICAL ANNOUNCES FILING OF FINAL PROSPECTUS
NOT FOR DISTRIBUTION TO UNITED STATES NEWS WIRE SERVICES OR FOR DISSEMINATION IN THE UNITED STATES
Cincinnati, Ohio – June 25, 2020 – Protech Home Medical Corp. (the “Company”) (TSXV: PTQ) (OTCQX: PTQQF) is pleased to announce that is has filed its (final) short form prospectus in connection with its previously announced bought deal public offering (the “Offering”) of units (“Units”) of the Company conducted by a syndicate of underwriters (the “Underwriters”) co-led by Beacon Securities Limited, as sole bookrunner, and Canaccord Genuity Corp.
Under the terms of the Offering, the Underwriters have agreed to purchase 21,740,000 Units from treasury of the Company, at a price of $1.15 per Unit for total gross proceeds of $25,001,000. Each Unit will consist of one common share of the Company (a “Common Share”) and one-half of one common share purchase warrant of the Company (each whole warrant, a “Warrant”). Each Warrant will be exercisable to acquire one Common Share for a period of 12 months following the closing of the Offering at an exercise price of $1.60 per share.
The Company intends to use the proceeds of the Offering to increase the Company’s cash position and may be used to complete strategic acquisitions. The Units to be issued under the Offering will be offered by way of a short form prospectus filed in each of British Columbia, Alberta and Ontario. The Offering is expected to close on or about June 29, 2020 and is subject to certain closing conditions including, but not limited to, the receipt of all necessary regulatory and stock exchange approvals.
The Company also announces that it has refiled its condensed consolidated interim financial statements for the three and six months ended March 31, 2020 and related management’s discussion and analysis (collectively, the “Interim Financial Reports”). The Interim Financial Reports have been refiled to correct the current and long-term positions of the Company’s liabilities and the acquisition consideration and purchase price allocation for two acquisitions that were completed during the period. The corrections did not result in any material changes to the Company’s condensed consolidated statement of income (loss) and comprehensive income (loss), condensed consolidated statement of changes in equity, or the condensed consolidated statement of cash flows for the periods presented previously.
The securities referred to in this news release have not been, nor will they be, registered under the United States Securities Act of 1933, as amended, and may not be offered or sold within the United States or to, or for the account or benefit of, U.S. persons absent U.S. registration or an applicable exemption from the U.S. registration requirements. This press release does not constitute an offer for sale of securities, nor a solicitation for offers to buy any securities in the United States, nor in any other jurisdiction in which such offer, solicitation or sale would be unlawful. Any public offering of securities in the United States must be made by means of a prospectus containing detailed information about the company and management, as well as financial statements.
ABOUT PROTECH HOME MEDICAL CORP.
The Company provides in-home monitoring and disease management services including end-to-end respiratory solutions for patients in the United States healthcare market. It seeks to continue to expand its offerings to include the management of several chronic disease states focusing on patients with heart or pulmonary disease, sleep disorders, reduced mobility and other chronic health conditions. The primary business objective of the Company is to create shareholder value by offering a broader range of services to patients in need of in-home monitoring and chronic disease management. The Company’s organic growth strategy is to increase annual revenue per patient by offering multiple services to the same patient, consolidating the patient’s services and making life easier for the patient.
Forward-Looking Statements
Certain statements contained in this press release constitute "forward-looking information" as such term is defined in applicable Canadian securities legislation. The words "may", "would", "could", "should", "potential", "will", "seek", "intend", "plan", "anticipate", "believe", "estimate", "expect" and similar expressions as they relate to the Company, including: the Offering, the use of the net proceeds from the Offering, the timing and ability of the Company to close the Offering, if at all, the number of Units offered or sold, the gross proceeds of the Offering, the timing and ability of the Company to obtain all necessary approvals, if at all, and the terms and jurisdictions of the Offering; are intended to identify forward-looking information. All statements other than statements of historical fact may be forward-looking information. Such statements reflect the Company's current views and intentions with respect to future events, and current information available to the Company, and are subject to certain risks, uncertainties and assumptions, including, without limitation: the timing and ability of the Company to close the Offering and to obtain all necessary approvals, if at all. Many factors could cause the actual results, performance or achievements that may be expressed or implied by such forward-looking information to vary from those described herein should one or more of these risks or uncertainties materialize. Examples of such risk factors include, without limitation: credit; market (including equity, commodity, foreign exchange and interest rate); liquidity; operational (including technology and infrastructure); reputational; insurance; strategic; regulatory; legal; environmental; capital adequacy; the general business and economic conditions in the regions in which the Company operates; the ability of the Company to execute on key priorities, including the successful completion of acquisitions, business retention, and strategic plans and to attract, develop and retain key executives; difficulty integrating newly acquired businesses; the ability to implement business strategies and pursue business opportunities; low profit market segments; disruptions in or attacks (including cyber-attacks) on the Company's information technology, internet, network access or other voice or data communications systems or services; the evolution of various types of fraud or other criminal behavior to which the Company is exposed; the failure of third parties to comply with their obligations to the Company or its affiliates; the impact of new and changes to, or application of, current laws and regulations; decline of reimbursement rates; dependence on few payors; possible new drug discoveries; a novel business model; dependence on key suppliers; granting of permits and licenses in a highly regulated business; the overall difficult litigation environment, including in the U.S.; increased competition; changes in foreign currency rates; increased funding costs and market volatility due to market illiquidity and competition for funding; the availability of funds and resources to pursue operations; critical accounting estimates and changes to accounting standards, policies, and methods used by the Company; the occurrence of natural and unnatural catastrophic events and claims resulting from such events; and risks related to COVID-19 including various recommendations, orders and measures of governmental authorities to try to limit the pandemic, including travel restrictions, border closures, non-essential business closures, quarantines, self-isolations, shelters-in-place and social distancing, disruptions to markets, economic activity, financing, supply chains and sales channels, and a deterioration of general economic conditions including a possible national or global recession; as well as those risk factors discussed or referred to in the Company’s disclosure documents filed with the securities regulatory authorities in certain provinces of Canada and available at www.sedar.com. Should any factor affect the Company in an unexpected manner, or should assumptions underlying the forward-looking information prove incorrect, the actual results or events may differ materially from the results or events predicted. Any such forward-looking information is expressly qualified in its entirety by this cautionary statement. Moreover, the Company does not assume responsibility for the accuracy or completeness of such forward-looking information. The forward-looking information included in this press release is made as of the date of this press release and the Company undertakes no obligation to publicly update or revise any forward-looking information, other than as required by applicable law.
Neither the TSX Venture Exchange nor its Regulation Services Provider (as that term is defined in the policies of the TSX Venture Exchange) accepts responsibility for the adequacy or accuracy of this release.
For further information please contact:
Cole Stevens
VP of Investor Relations
Protech Home Medical Corp.
859-300-6455
cole.stevens@myphm.com
Gregory Crawford
Chief Executive Officer
Protech Home Medical Corp.
859-300-6455
investorinfo@myphm.com
Exhibit 99.46
PROTECH HOME MEDICAL ANNOUNCES CLOSING OF $31.8 MILLION SHORT FORM PROSPECTUS OFFERING (INCLUDING FULL EXERCISE OF THE OVER-ALLOTMENT OPTION) AND CONCURRENT PRIVATE PLACEMENTS
NOT FOR DISTRIBUTION TO UNITED STATES NEWS WIRE SERVICES OR FOR DISSEMINATION IN THE UNITED STATES
Cincinnati, Ohio – June 29, 2020 – Protech Home Medical Corp. (the “Company”) (TSXV: PTQ) (OTCQX: PTQQF), a U.S.-based leader in the home medical equipment industry, focused on end-to-end respiratory care, is pleased to announce that it has closed its previously announced bought deal prospectus offering of 25,001,000 units (“Units”) at a price of $1.15 per Unit (the “Issue Price”) for aggregate gross proceeds of $28,751,150 (the “Public Offering”), which includes the exercise in full of the 15% over-allotment option. The syndicate of underwriters (the “Underwriters”) for the Public Offering was co-led by Beacon Securities Limited (“Beacon”), as sole bookrunner, and Canaccord Genuity Corp. (“Canaccord”). The Units under the Public Offering were offered and sold by way of a short form prospectus filed in British Columbia, Alberta and Ontario.
The Company is also pleased to announce that, concurrent with the Public Offering, it has closed: (i) its previously announced brokered private placement of 1,750,000 Units at the Issue Price for additional gross proceeds of $2,012,500 (the “Brokered Private Placement”), which was conducted by a syndicate of agents (the “Agents”) co-led by Beacon, as sole bookrunner, and Canaccord; and (ii) its previously announced non-brokered private placement of 927,825 Units at the Issue Price for additional gross proceeds of $1,067,000 (the “Non-Brokered Private Placement”, and together with the Brokered Private Placement, the “Private Placements” and, together with the Public Offering, the “Offerings”), with Gregory Crawford, Chairman and CEO of the Company, and Mark Greenberg, a director of the Company. The securities issued under the Private Placements are subject to resale restrictions, including, a Canadian and, in the case of the Non-Brokered Private Placement, an Exchange four-month hold period.
Each Unit is comprised of one common share of the Company (a “Common Share”) and one-half of one common share purchase warrant (each whole common share purchase warrant, a “Warrant”). Each Warrant is exercisable to acquire one Common Share at an exercise price of $1.60 per share, subject to adjustment in certain events, until June 29, 2021.
The Company intends to use the net proceeds of the Offering to increase the Company’s cash position and may be used to complete strategic acquisitions.
“We are thrilled to announce the closing of this oversubscribed financing, as it represents an important milestone in Protech’s evolution” commented Greg Crawford, CEO, and Chairman. “We want to thank our existing shareholders for their extraordinary support, and welcome new shareholders. We are excited to further execute on our growth strategy and this injection of capital will allow for an aggressive acceleration of our plan. We look forward to updating shareholders on our continued progress in the weeks to come.”
In consideration for the services provided by the Underwriters in connection with the Public Offering, the Company paid the Underwriters a commission equal to 5.5% of the gross proceeds raised under the Public Offering and issued to the Underwriters an aggregate of 1,375,055 non-transferable compensation options (the “Compensation Options”), which represents 5.5% of the total number of Units sold under the Public Offering. Each Compensation Option is exercisable into one Common Share at a price per Common Share that is equal to the Issue Price, subject to adjustments in certain events, until June 29, 2022.
In consideration for the services provided by the Agents in connection with the Brokered Private Placement, the Company paid the Agents a commission equal to 5.5% of the gross proceeds raised under the Brokered Private Placement and issued to the Agents an aggregate of 96,250 non-transferable broker warrants (the “Broker Warrants”), which represents 5.5% of the total number of Units sold under the Brokered Private Placement. Each Broker Warrant is exercisable into one common share in the capital of the Company (a “Common Share”) at a price per Common Share that is equal to the Issue Price, subject to adjustments in certain events, until June 29, 2022.
The Offering is subject to final acceptance of the TSX Venture Exchange (“TSXV”). The TSXV has conditionally accepted the Offering.
By virtue of the participation of Gregory Crawford and Mark Greenberg, each an insider of the Company, the Non-Brokered Private Placement constitutes a "related party transaction", as defined under Multilateral Instrument 61-101 (“MI 61-101”). The Non-Brokered Private Placement is exempt from the formal valuation and minority shareholder approval requirements of MI 61-101 as neither the fair market value of any securities issued to nor the consideration paid by such insiders would exceed 25% of the Company’s market capitalization.
The securities referred to in this news release have not been, nor will they be, registered under the United States Securities Act of 1933, as amended, and may not be offered or sold within the United States or to, or for the account or benefit of, U.S. persons absent U.S. registration or an applicable exemption from the U.S. registration requirements. This press release does not constitute an offer for sale of securities, nor a solicitation for offers to buy any securities in the United States, nor in any other jurisdiction in which such offer, solicitation or sale would be unlawful. Any public offering of securities in the United States must be made by means of a prospectus containing detailed information about the company and management, as well as financial statements.
ABOUT PROTECH HOME MEDICAL CORP.
The Company provides in-home monitoring and disease management services including end-to-end respiratory solutions for patients in the United States healthcare market. It seeks to continue to expand its offerings to include the management of several chronic disease states focusing on patients with heart or pulmonary disease, sleep disorders, reduced mobility and other chronic health conditions. The primary business objective of the Company is to create shareholder value by offering a broader range of services to patients in need of in-home monitoring and chronic disease management. The Company’s organic growth strategy is to increase annual revenue per patient by offering multiple services to the same patient, consolidating the patient’s services and making life easier for the patient.
Forward-Looking Statements
Certain statements contained in this press release constitute "forward-looking information" as such term is defined in applicable Canadian securities legislation. The words "may", "would", "could", "should", "potential", "will", "seek", "intend", "plan", "anticipate", "believe", "estimate", "expect" and similar expressions as they relate to the Company, including: the anticipated use of the net proceeds from the Offerings and the final approval of the TSXV in connection with the Offerings; are intended to identify forward-looking information. All statements other than statements of historical fact may be forward-looking information. Such statements reflect the Company's current views and intentions with respect to future events, and current information available to the Company, and are subject to certain risks, uncertainties and assumptions. Many factors could cause the actual results, performance or achievements that may be expressed or implied by such forward-looking information to vary from those described herein should one or more of these risks or uncertainties materialize. Examples of such risk factors include, without limitation: credit; market (including equity, commodity, foreign exchange and interest rate); liquidity; operational (including technology and infrastructure); reputational; insurance; strategic; regulatory; legal; environmental; capital adequacy; the general business and economic conditions in the regions in which the Company operates; the ability of the Company to execute on key priorities, including the successful completion of acquisitions, business retention, and strategic plans and to attract, develop and retain key executives; difficulty integrating newly acquired businesses; the ability to implement business strategies and pursue business opportunities; low profit market segments; disruptions in or attacks (including cyber-attacks) on the Company's information technology, internet, network access or other voice or data communications systems or services; the evolution of various types of fraud or other criminal behavior to which the Company is exposed; the failure of third parties to comply with their obligations to the Company or its affiliates; the impact of new and changes to, or application of, current laws and regulations; decline of reimbursement rates; dependence on few payors; possible new drug discoveries; a novel business model; dependence on key suppliers; granting of permits and licenses in a highly regulated business; the overall difficult litigation environment, including in the U.S.; increased competition; changes in foreign currency rates; increased funding costs and market volatility due to market illiquidity and competition for funding; the availability of funds and resources to pursue operations; critical accounting estimates and changes to accounting standards, policies, and methods used by the Company; the occurrence of natural and unnatural catastrophic events and claims resulting from such events; and risks related to COVID-19 including various recommendations, orders and measures of governmental authorities to try to limit the pandemic, including travel restrictions, border closures, non-essential business closures, quarantines, self-isolations, shelters-in-place and social distancing, disruptions to markets, economic activity, financing, supply chains and sales channels, and a deterioration of general economic conditions including a possible national or global recession; as well as those risk factors discussed or referred to in the Company’s disclosure documents filed with the securities regulatory authorities in certain provinces of Canada and available at www.sedar.com. Should any factor affect the Company in an unexpected manner, or should assumptions underlying the forward-looking information prove incorrect, the actual results or events may differ materially from the results or events predicted. Any such forward-looking information is expressly qualified in its entirety by this cautionary statement. Moreover, the Company does not assume responsibility for the accuracy or completeness of such forward-looking information. The forward-looking information included in this press release is made as of the date of this press release and the Company undertakes no obligation to publicly update or revise any forward-looking information, other than as required by applicable law.
Neither the TSX Venture Exchange nor its Regulation Services Provider (as that term is defined in the policies of the TSX Venture Exchange) accepts responsibility for the adequacy or accuracy of this release.
For further information please contact:
Cole Stevens
VP of Investor Relations
Protech Home Medical Corp.
859-300-6455
cole.stevens@myphm.com
Gregory Crawford
Chief Executive Officer
Protech Home Medical Corp.
859-300-6455
investorinfo@myphm.com
Exhibit 99.47
PROTECH HOME MEDICAL CORP.
as the Corporation
and
COMPUTERSHARE TRUST COMPANY OF CANADA
as the Warrant Agent
WARRANT INDENTURE
Providing for the Issue of Warrants
Dated as of June 29, 2020
TABLE OF CONTENTS | |||||
|
Page No. | ||||
Article 1
INTERPRETATION |
|||||
Section 1.1 | Definitions | 2 | |||
Section 1.2 | Gender and Number | 7 | |||
Section 1.3 | Headings, Etc. | 7 | |||
Section 1.4 | Day not a Business Day | 7 | |||
Section 1.5 | Time of the Essence | 7 | |||
Section 1.6 | Monetary References | 8 | |||
Section 1.7 | Applicable Law | 8 | |||
Article 2
ISSUE OF WARRANTS |
|||||
Section 2.1 | Creation and Issue of Warrants | 8 | |||
Section 2.2 | Terms of Warrants | 8 | |||
Section 2.3 | Warrantholder not a Shareholder | 9 | |||
Section 2.4 | Warrants to Rank Pari Passu | 9 | |||
Section 2.5 | Form of Warrants, Warrant Certificates | 9 | |||
Section 2.6 | Non-Certificated Inventory | 10 | |||
Section 2.7 | Warrant Certificate | 13 | |||
Section 2.8 | Legends | 14 | |||
Section 2.9 | Register of Warrants | 16 | |||
Section 2.10 | Issue in Substitution for Warrant Certificates Lost, etc. | 17 | |||
Section 2.11 | Exchange of Warrant Certificates | 18 | |||
Section 2.12 | Transfer and Ownership of Warrants | 18 | |||
Section 2.13 | Cancellation of Surrendered Warrants | 19 | |||
Article 3
EXERCISE OF WARRANTS |
|||||
Section 3.1 | Right of Exercise | 20 | |||
Section 3.2 | Warrant Exercise | 20 | |||
Section 3.3 | Restrictions on Exercise by U.S. Persons; Legended Certificates | 23 | |||
Section 3.4 | Transfer Fees and Taxes | 25 | |||
Section 3.5 | Warrant Agency | 25 | |||
Section 3.6 | Effect of Exercise of Warrant Certificates | 25 | |||
Section 3.7 | Partial Exercise of Warrants; Fractions | 26 | |||
Section 3.8 | Expiration of Warrants | 26 | |||
Section 3.9 | Accounting and Recording | 26 | |||
Section 3.10 | Securities Restrictions | 27 |
TABLE OF CONTENTS | |||||
(continued) | |||||
Page No. | |||||
Article 4 | |||||
ADJUSTMENT OF NUMBER OF Warrant SHARES | |||||
AND EXERCISE PRICE | |||||
Section 4.1 | Adjustment of Number of Warrant Shares and Exercise Price | 27 | |||
Section 4.2 | Entitlement to Warrant Shares on Exercise of Warrant | 32 | |||
Section 4.3 | No Adjustment for Certain Transactions | 32 | |||
Section 4.4 | Determination by Independent Firm | 32 | |||
Section 4.5 | Proceedings Prior to any Action Requiring Adjustment | 33 | |||
Section 4.6 | Certificate of Adjustment | 33 | |||
Section 4.7 | Notice of Special Matters | 33 | |||
Section 4.8 | No Action after Notice | 33 | |||
Section 4.9 | Other Action | 34 | |||
Section 4.10 | Protection of Warrant Agent | 34 | |||
Section 4.11 | Participation by Warrantholder | 34 | |||
Article 5
RIGHTS OF THE CORPORATION AND COVENANTS |
|||||
Section 5.1 | Optional Purchases by the Corporation | 35 | |||
Section 5.2 | General Covenants | 35 | |||
Section 5.3 | Warrant Agent’s Remuneration and Expenses | 36 | |||
Section 5.4 | Performance of Covenants by Warrant Agent | 36 | |||
Section 5.5 | Enforceability of Warrants | 37 | |||
Article 6
ENFORCEMENT |
|||||
Section 6.1 | Suits by Registered Warrantholders | 37 | |||
Section 6.2 | Suits by the Corporation | 37 | |||
Section 6.3 | Immunity of Shareholders, etc. | 37 | |||
Section 6.4 | Waiver of Default | 38 | |||
Article 7
MEETINGS OF REGISTERED WARRANTHOLDERS |
|||||
Section 7.1 | Right to Convene Meetings | 38 | |||
Section 7.2 | Notice | 38 | |||
Section 7.3 | Chairman | 39 | |||
Section 7.4 | Quorum | 39 | |||
Section 7.5 | Power to Adjourn | 39 | |||
Section 7.6 | Show of Hands | 40 | |||
Section 7.7 | Poll and Voting | 40 |
- ii -
TABLE OF CONTENTS | |||||
(continued) | |||||
. | Page No. | ||||
Section 7.8 | Regulations | 40 | |||
Section 7.9 | Corporation and Warrant Agent May be Represented | 41 | |||
Section 7.10 | Powers Exercisable by Extraordinary Resolution | 41 | |||
Section 7.11 | Meaning of Extraordinary Resolution | 42 | |||
Section 7.12 | Powers Cumulative | 43 | |||
Section 7.13 | Minutes | 43 | |||
Section 7.14 | Instruments in Writing | 43 | |||
Section 7.15 | Binding Effect of Resolutions | 44 | |||
Section 7.16 | Holdings by Corporation Disregarded | 44 | |||
Article 8
SUPPLEMENTAL INDENTURES |
|||||
Section 8.1 | Provision for Supplemental Indentures for Certain Purposes | 44 | |||
Section 8.2 | Successor Entities | 45 | |||
Article 9
CONCERNING THE WARRANT Agent |
|||||
Section 9.1 | Trust Indenture Legislation | 46 | |||
Section 9.2 | Rights and Duties of Warrant Agent | 46 | |||
Section 9.3 | Evidence, Experts and Advisers | 47 | |||
Section 9.4 | Documents, Monies, etc. Held by Warrant Agent | 48 | |||
Section 9.5 | Actions by Warrant Agent to Protect Interest | 48 | |||
Section 9.6 | Warrant Agent Not Required to Give Security | 48 | |||
Section 9.7 | Protection of Warrant Agent | 48 | |||
Section 9.8 | Replacement of Warrant Agent; Successor by Merger | 50 | |||
Section 9.9 | Acceptance of Agency | 51 | |||
Section 9.10 | Warrant Agent Not to be Appointed Receiver | 51 | |||
Section 9.11 | Warrant Agent Not Required to Give Notice of Default | 51 | |||
Section 9.12 | Anti-Money Laundering | 51 | |||
Section 9.13 | Compliance with Privacy Code | 52 | |||
Section 9.14 | Securities Exchange Commission Certification | 52 | |||
Article 10
GENERAL |
|||||
Section 10.1 | Notice to the Corporation and the Warrant Agent | 53 | |||
Section 10.2 | Notice to Registered Warrantholders | 54 | |||
Section 10.3 | Ownership of Warrants | 55 | |||
Section 10.4 | Counterparts | 55 | |||
Section 10.5 | Satisfaction and Discharge of Indenture | 55 |
- iii -
TABLE OF CONTENTS | |||||
(continued) | |||||
Page No. | |||||
Section 10.6 | Provisions of Indenture and Warrants for the Sole Benefit of Parties and Registered Warrantholders | 56 | |||
Section 10.7 | Common Shares or Warrants Owned by the Corporation or its Subsidiaries - Certificate to be Provided | 56 | |||
Section 10.8 | Severability | 56 | |||
Section 10.9 | Force Majeure | 57 | |||
Section 10.10 | Assignment, Successors and Assigns | 57 | |||
Section 10.11 | Rights of Rescission and Withdrawal for Holders | 57 |
SCHEDULES
SCHEDULE “A”
FORM OF WARRANT
SCHEDULE “B”
EXERCISE FORM
SCHEDULE “C”
FORM OF DECLARATION FOR REMOVAL OF LEGEND
SCHEDULE “D”
FORM OF U.S. PURCHASER CERTIFICATION UPON EXERCISE OF WARRANTS
- iv -
WARRANT INDENTURE
THIS INDENTURE is dated as of June 29, 2020.
BETWEEN:
PROTECH HOME MEDICAL CORP., a corporation existing under the laws of the Province of British Columbia (the “Corporation”),
- AND -
COMPUTERSHARE TRUST COMPANY OF CANADA, a trust company existing under the laws of Canada and authorized to carry on business in all provinces of Canada (the “Warrant Agent”)
WHEREAS in connection with a prospectus offering (the “Prospectus Offering”) of Units by the Corporation, and pursuant to an underwriting agreement (the “Underwriting Agreement”) dated June 8, 2020, between the Corporation, Beacon Securities Limited, Canaccord Genuity Corp., Echelon Wealth Partners Inc., Stifel GMP, Industrial Alliance Securities Inc. and M Partners Inc. (collectively, the “Underwriters”), the Corporation is proposing to issue up to a maximum of 25,001,000 Units, if the Underwriters’ Option is exercised in full;
AND WHEREAS concurrent with the Prospectus Offering, the Corporation intends to complete (i) a brokered private placement (the “Brokered Private Placement”) of 1,750,000 additional Units, and (ii) a non-brokered private placement (the “Non-Brokered Private Placement”, and together with the Brokered Private Placement, the “Private Placements”) of 927,826 additional Units;
AND WHEREAS pursuant to this Indenture, each Warrant shall, subject to adjustment, entitle the holder thereof to acquire one (1) Common Share (each, a “Warrant Share”) upon payment of the Exercise Price prior to the Expiry Time upon the terms and conditions herein set forth;
AND WHEREAS in accordance with the foregoing, the Corporation proposes to issue up to 13,839,412 Warrants pursuant to this Indenture, of which 10,870,000 Warrants will be issued initially in connection with the Prospectus Offering, up to 1,630,500 may be issued upon due exercise of the Underwriters’ Option, and 1,338,912 are issuable in connection with the Private Placements;
AND WHEREAS all acts and deeds necessary have been done and performed to make the Warrants, when created and issued as provided in this Indenture, legal, valid and binding upon the Corporation with the benefits and subject to the terms of this Indenture;
- 2 -
AND WHEREAS the foregoing recitals are made as representations and statements of fact by the Corporation and not by the Warrant Agent;
NOW THEREFORE, in consideration of the premises and mutual covenants hereinafter contained and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Corporation hereby appoints the Warrant Agent as warrant agent to hold the rights, interests and benefits contained herein for and on behalf of those persons who from time to time become the holders of Warrants issued pursuant to this Indenture and the parties hereto agree as follows:
Article 1
INTERPRETATION
Section 1.1 Definitions.
In this Indenture, including the recitals and schedules hereto, and in all indentures supplemental hereto:
“Adjustment Period” means the period from the Effective Date up to and including the Expiry Time;
“Applicable Legislation” means any statute of Canada or a province thereof, and the regulations under any such named or other statute, relating to warrant indentures or to the rights, duties and obligations of warrant agents under warrant indentures, to the extent that such provisions are at the time in force and applicable to this Indenture;
“Applicable Securities Laws” means the Canadian Securities Laws and the U.S. Securities Laws;
“Auditors” means MNP LLP, or such other firm of chartered accountants duly appointed as auditors of the Corporation, from time to time;
“Authenticated” means (a) with respect to the issuance of a Warrant Certificate, one which has been duly signed by the Corporation or on which the signatures of the Corporation have been printed, lithographed or otherwise mechanically reproduced and authenticated by signature of an authorized officer of the Warrant Agent, and (b) with respect to the issuance of an Uncertificated Warrant, one in respect of which the Warrant Agent has completed all Internal Procedures such that the particulars of such Uncertificated Warrant as required by Section 2.7 are entered in the register of holders of Warrants, “Authenticate”, “Authenticating” and “Authentication” have the appropriate correlative meanings;
“Beneficial Owner” means a person that has a beneficial interest in the Warrant that is represented by a Warrant Certificate or Uncertificated Warrant registered in the name of CDS or its nominee, for purposes of being held by or on behalf of CDS as custodian for CDS Participants;
- 3 -
“Brokered Private Placement” has the meaning set forth in the preambles hereto;
“Business Day” means any day other than Saturday, Sunday or a statutory or civic holiday, or any other day on which banks are not open for business in the City of Toronto, Province of Ontario, and shall be a day on which the TSX is open for trading;
“Canadian Securities Laws” means, collectively, all applicable securities laws of each of the provinces and territories of Canada and the respective rules and regulations under such laws together with applicable published fee schedules, prescribed forms, policy statements, notices, orders, blanket rulings and other regulatory instruments of the securities regulatory authorities in such jurisdictions;
“CDS” means the settlement and clearing system of CDS Clearing and Depository Services Inc. for equity and debt securities in Canada;
“CDS Participant” means a broker, dealer, bank or other financial institution or other person for whom, from time to time, CDS effects book entries for the Warrants deposited with CDS;
“Common Share Reorganization” has the meaning set forth in Section 4.1;
“Common Shares” means, subject to Article 4, fully paid and non-assessable common shares in the capital of the Corporation as presently constituted;
“Confirmation” means a confirmation sent by CDS to the Warrant Agent in connection with the exercise of a Warrant by a Beneficial Owner through a CDS Participant;
“Counsel” means a barrister and/or solicitor or a firm of barristers and/or solicitors retained by the Warrant Agent or retained by the Corporation, which may or may not be counsel for the Corporation;
“Current Market Price” of the Common Shares at any date means the volume-weighted average of the trading price per Common Share for such Common Shares for each day there was a closing price for the 20 consecutive Trading Days ending five days prior to such date on the TSX-V or if on such date the Common Shares are not listed on the TSX-V, on such stock exchange upon which such Common Shares are listed and as selected by the directors of the Corporation, or, if such Common Shares are not listed on any stock exchange then on such over-the-counter market as may be selected for such purpose by the directors of the Corporation;
“Depository” means CDS Clearing and Depository Services Inc. and Depository Trust Clearing Corporation or such other person as is designated in writing by the Corporation to act as depository in respect of the Warrants;
“Effective Date” means the date of this Indenture;
- 4 -
“Exchange Rate” means the number of Warrant Shares subject to the right of purchase under each Warrant;
“Exercise Date” means, in relation to a Warrant, the Business Day on which such Warrant is validly exercised or deemed to be validly exercised in accordance with Article 3 hereof;
“Exercise Notice” has the meaning set forth in Section 3.2(1);
“Exercise Price” at any time means the price at which a whole Warrant Share may be purchased by the exercise of a whole Warrant, which is initially $1.60 per Warrant Share, payable in immediately available Canadian funds, subject to adjustment in accordance with the provisions of Section 4.1;
“Expiry Date” means June 29, 2021;
“Expiry Time” means 4:00 p.m. (Toronto time) on the Expiry Date;
“Extraordinary Resolution” has the meaning set forth in Section 7.11(1);
"Internal Procedures" means in respect of the making of any one or more entries to, changes in or deletions of any one or more entries in the register (including without limitation, original issuance or registration of transfer of ownership) based on the Warrant Agent’s then current internal procedures customary for such entry, change or deletion;
“Issue Date” means the date of issuance of the Warrants by the Corporation;
“Non-Brokered Private Placement” has the meaning set forth in the preambles hereto;
“person” means an individual, body corporate, partnership, trust, warrant agent, executor, administrator, legal representative or any unincorporated organization;
“Private Placements” has the meaning set forth in the preambles hereto;
“Prospectus Offering” has the meaning set forth in the preambles hereto;
“register” means the one set of records and accounts maintained by the Warrant Agent pursuant to Section 2.9;
“Registered Warrantholders” means the persons who are registered owners of Warrants as such names appear on the register, and for greater certainty, shall include the Depository as well as the holders of Uncertificated Warrants appearing on the register of the Warrant Agent;
“Regulation D” means Regulation D as promulgated by the SEC under the U.S. Securities Act;
“Regulation S” means Regulation S as promulgated by the SEC under the U.S. Securities Act;
- 5 -
“Rights Offering” has the meaning set forth in Section 4.1(b);
“SEC” means the United States Securities and Exchange Commission;
“Shareholders” means holders of Common Shares;
“Tax Act” means the Income Tax Act (Canada) and the regulations thereunder;
“this Warrant Indenture”, “this Indenture”, “this Agreement”, “hereto” “herein”, “hereby”, “hereof” and similar expressions mean and refer to this Indenture and any indenture, deed or instrument supplemental hereto; and the expressions “Article”, “Section”, “subsection” and “paragraph” followed by a number, letter or both mean and refer to the specified article, section, subsection or paragraph of this Indenture;
“Trading Day” means, with respect to the TSX-V, a day on which such exchange is open for the transaction of business and with respect to another exchange or an over-the-counter market means a day on which such exchange or market is open for the transaction of business;
“Transaction Instruction” means a written order signed by the a registered Warrantholder or the Depository or electronic confirmation from the Depository, entitled to request that one or more actions be taken, or such other form as may be reasonably acceptable to the Warrant Agent, requesting one or more such actions to be taken in respect of an Uncertificated Warrant;
“TSX-V” means the TSX Venture Exchange Inc.;
“Uncertificated Warrant” means any Warrant which is not evidenced by a Warrant Certificate, and which is evidenced by a book position on the register of Warrantholders to be maintained by the Warrant Agent in accordance with Section 2.9;
“Underwriters” has the meaning set forth in the preambles hereto;
“Underwriters’ Option” means the option of the Underwriters exercisable in whole or in part, at any time and from time to time, in the sole discretion of the Underwriters, for a period of 30 days from the closing of the Prospectus Offering, to purchase up to an additional amount of Units equal to 3,261,000 Units, including 1,630,500 Warrants;
“Underwriting Agreement” has the meaning set forth in the preambles hereto;
“United States” means the United States of America, its territories and possessions, any state of the United States, and the District of Columbia;
“Units” means the units of the Corporation, each Unit being comprised of one Common Share and one-half of one Warrant;
- 6 -
“U.S. Exchange Act” means the United States Securities Exchange Act of 1934, as amended;
“U.S. Institutional Accredited Investor” means an institutional “accredited investor” that satisfies one of the categories set forth in Rule 501(a)(1), (2), (3) or (7) of Regulation D;
“U.S. Offering” means the offer and sale of Units issuable on the date of this Indenture to, or for the account or benefit of, persons in the United States and U.S. Persons that are U.S. Institutional Accredited Investors (that completed and executed a U.S. Subscription Agreement) pursuant to Rule 506(b) of Regulation D;
“U.S. Person” has the meaning set forth in Rule 902(k) of Regulation S;
“U.S. Purchaser Letter” means the U.S. Purchaser letter in substantially the form attached hereto as Schedule “D”;
“U.S. Securities Act” means the United States Securities Act of 1933, as amended;
“U.S. Securities Laws” means all applicable securities legislation in the United States including, without limitation, the U.S. Securities Act, the U.S. Exchange Act and the rules and regulations promulgated thereunder, and any applicable state securities laws;
“U.S. Subscription Agreement” means a Subscription Agreement for Institutional Accredited Investors, including the U.S. Institutional Accredited Investor Status Certificate attached thereto, in the form agreed to by the Corporation and underwriters for the Prospectus Offering;
“U.S. Warrantholder” means any purchaser of units of the Corporation in the U.S. Offering or any other Warrantholder that is, or is acting for the account or benefit of, a person in the United States or a U.S. Person, that acquired the Warrants in the Non-Brokered Private Placement, or that did not acquire the Warrants directly from the Corporation on the date of this Indenture;
“Warrant Agency” means the principal office of the Warrant Agent in the City of Vancouver, British Columbia, or such other place as may be designated in accordance with Section 3.5;
“Warrant Agent” has the meaning set forth in the preambles hereto;
“Warrant Certificate” means a certificate, substantially in the form set forth in Schedule “A” hereto, to evidence those Warrants that will be evidenced by a certificate;
”Warrant Shares” has the meaning, subject to Article 4, set forth in the preambles hereto;
“Warrantholders”, or “holders” without reference to Warrants, means the warrantholders as and in respect of Warrants registered in the name of the Depository and includes owners of Warrants who beneficially hold securities entitlements in respect of the Warrants through a CDS Participant or means, at a particular time, the persons entered in the register hereinafter mentioned as holders of Warrants outstanding at such time;
- 7 -
“Warrantholders’ Request” means an instrument signed in one or more counterparts by Registered Warrantholders entitled to acquire in the aggregate not less than 25% of the aggregate number of Warrant Shares which could be acquired pursuant to all Warrants then unexercised and outstanding, requesting the Warrant Agent to take some action or proceeding specified therein;
“Warrants” means the Common Share purchase warrants created by and authorized by and issuable under this Indenture, entitling the holder or holders thereof to purchase Warrant Shares (subject to adjustment as herein provided) on the basis of one Warrant Share for each Warrant upon payment of the Exercise Price prior to the Expiry Time and, where the context so requires, also means the warrants issued and Authenticated hereunder, whether by way of Warrant Certificate or Uncertificated Warrant; and
“written order of the Corporation”, “written request of the Corporation”, “written consent of the Corporation” and “certificate of the Corporation” mean, respectively, a written order, request, consent and certificate signed in the name of the Corporation by any two duly authorized signatories of the Corporation and may consist of one or more instruments so executed.
Section 1.2 Gender and Number.
Words importing the singular number or masculine gender shall include the plural number or the feminine or neuter genders, and vice versa.
Section 1.3 Headings, Etc.
The division of this Indenture into Articles and Sections, the provision of a Table of Contents and the insertion of headings are for convenience of reference only and shall not affect the construction or interpretation of this Indenture or of the Warrants.
Section 1.4 Day not a Business Day.
If any day on or before which any action or notice is required to be taken or given hereunder is not a Business Day, then such action or notice shall be required to be taken or given on or before the requisite time on the next succeeding day that is a Business Day.
Section 1.5 Time of the Essence.
Time shall be of the essence in this Indenture and each Warrant.
- 8 -
Section 1.6 Monetary References.
Whenever any amounts of money are referred to herein, such amounts shall be deemed to be in lawful money of Canada unless otherwise expressed.
Section 1.7 Applicable Law.
This Indenture, the Warrants, the Warrant Certificates (including all documents relating thereto, which by common accord have been and will be drafted in English) shall be construed in accordance with the laws of the Province of Ontario, and the federal laws of Canada applicable therein and shall be treated in all respects as Ontario contracts. Each of the parties hereto, which shall include the Warrantholders, irrevocably attorns to the exclusive jurisdiction of the courts of the Province of Ontario with respect to all matters arising out of this Indenture and the transactions contemplated herein.
Article 2
ISSUE OF WARRANTS
Section 2.1 Creation and Issue of Warrants.
A maximum of 13,839,412 Warrants (subject to adjustment as herein provided) are hereby created and authorized to be issued on the Issue Date in accordance with the terms and conditions hereof. By written order of the Corporation, the Warrant Agent shall deliver Warrants in certificate or uncertificated form pursuant to Section 2.5 hereof to Registered Warrantholders and record the name of the Registered Warrantholders on the Warrant register in accordance with Section 2.9. Registration of interests in Warrants held by the Depository may be evidenced by a position appearing on the register for Warrants of the Warrant Agent for an amount representing the aggregate number of such Warrants outstanding from time to time.
Section 2.2 Terms of Warrants.
(1) | Subject to the applicable conditions for exercise set out in Article 3 having been satisfied and subject to adjustment in accordance with Section 4.1, each whole Warrant shall entitle each Warrantholder thereof, upon exercise at any time after the Issue Date and prior to the Expiry Time, to acquire one (1) Warrant Share upon payment of the Exercise Price. |
(2) | No fractional Warrants shall be issued or otherwise provided for hereunder and Warrants may only be exercised in a sufficient number to acquire whole numbers of Warrant Shares. Any fractional Warrants shall be rounded down to the nearest whole number and no consideration shall be paid for any such fractional Warrant. |
(3) | Each whole Warrant shall entitle the holder thereof to such other rights and privileges as are set forth in this Indenture. |
- 9 -
(4) | The number of Warrant Shares which may be purchased pursuant to the Warrants and the Exercise Price therefor shall be adjusted upon the events and in the manner specified in Section 4.1. |
(5) | Neither the Corporation nor the Warrant Agent shall have any obligation to deliver Warrant Shares upon the exercise of any Warrant if the person to whom such shares are to be delivered is a resident of a country or political subdivision thereof in which the Warrant Shares may not lawfully be issued pursuant to Applicable Securities Laws. The Corporation or the Warrant Agent may require any person to provide proof of an applicable exemption from such securities legislation to the Corporation and Warrant Agent before Warrant Shares are delivered pursuant to the exercise of any Warrant. |
Section 2.3 Warrantholder not a Shareholder.
Except as may be specifically provided herein, nothing in this Indenture or in the holding of a Warrant Certificate, entitlement to a Warrant or otherwise, shall, in itself, confer or be construed as conferring upon a Warrantholder any right or interest whatsoever as a Shareholder, including, but not limited to, the right to vote at, to receive notice of, or to attend, meetings of Shareholders or any other proceedings of the Corporation, or the right to dividends and other allocations.
Section 2.4 Warrants to Rank Pari Passu.
All Warrants shall rank equally and without preference over each other, whatever may be the actual date of issue thereof.
Section 2.5 Form of Warrants, Warrant Certificates.
(1) | The Warrants may be issued in both certificated and uncertificated form. Each Warrant originally issued to a U.S. Warrantholder will be evidenced in certificated form only and bear the applicable legends as set forth in Schedule “A” hereto. All Warrants issued in certificated form shall be evidenced by a Warrant Certificate (including all replacements issued in accordance with this Indenture), substantially in the form and bearing the applicable legends as set out in Schedule “A” hereto, which shall be dated as of the Issue Date, shall bear such distinguishing letters and numbers as the Corporation may, with the approval of the Warrant Agent, prescribe, and shall be issuable in any denomination excluding fractions. All Warrants issued to the Depository may be in either a certificated or uncertificated form, such uncertificated form being evidenced by a book position on the register of Warrantholders to be maintained by the Warrant Agent in accordance with Section 2.6. |
(2) | Each Warrantholder by purchasing such Warrant acknowledges and agrees that the terms and conditions, other than the legends applicable to such Warrants, set forth in the form of the Warrant Certificate set out in Schedule “A” hereto shall apply to all Warrants and Warrantholders regardless of whether such Warrants are issued in certificated or uncertificated form or whether such Warrantholders are Registered Warrantholders or owners of Warrant who beneficially hold security entitlements in respect of the Warrants through a Depository. |
- 10 -
Section 2.6 Non-Certificated Inventory.
(1) | Subject to the provisions hereof, at the Corporation’s option, Warrants, other than those issued to a U.S. Warrantholder (which will be evidenced in certificated form only bearing the applicable legends set forth in Section 2.8), will be issued and registered in the name of CDS or its nominee and may be directly deposited by the Warrant Agent to CDS. Notwithstanding any terms set out herein, Warrants held in the name of the Depository having any legend set forth in Section 2.8 herein may only be held in the form of Uncertificated Warrants with the prior consent of the Warrant Agent, acting reasonably, and in accordance Internal Procedures of the Warrant Agent. |
(2) | If the Corporation issues Warrants in a non-certificated format, Beneficial Owners of such Warrants registered and deposited with CDS shall not receive Warrant Certificates in definitive form and shall not be considered owners or holders thereof under this Indenture or any supplemental agreement. Beneficial interests in Warrants registered and deposited with CDS will be represented only through the non-certificated inventory system administered by CDS and Beneficial Owners shall not be entitled to have Warrants registered in their names or to have their names appear in the register referred to in Section 2.9 herein. Transfers of Warrants registered and deposited with CDS between CDS Participants shall occur in accordance with the rules and procedures of CDS. Neither the Corporation nor the Warrant Agent shall have any responsibility or liability for any aspects of the records relating to or payments made by CDS or its nominee, on account of the beneficial interests in Warrants registered and deposited with CDS. Nothing herein shall prevent the Beneficial Owners of Warrants registered and deposited with CDS from voting such Warrants using duly executed proxies. |
(3) | All references herein to actions by, notices given to, or payments made to, Warrantholders shall, where Warrants are held through CDS, refer to actions taken by, notices given to, or payments made to, CDS upon instruction from the CDS Participants in accordance with its rules and procedures. For the purposes of any provision hereof requiring or permitting actions with the consent of or at the direction of Warrantholders evidencing a specified percentage of the aggregate Warrants outstanding, such direction or consent may be given by Beneficial Owners acting through CDS and the CDS Participants owning Warrants evidencing the requisite percentage of the Warrants. The rights of a Beneficial Owner whose Warrants are held through CDS shall be exercised only through CDS and the CDS Participants and shall be limited to those established by law and agreements between such Beneficial Owners and CDS and the CDS Participants upon instructions from the CDS Participants. Each of the Warrant Agent and the Corporation may deal with CDS for all purposes (including the making of payments) as the authorized representative of the respective Warrants and such dealing with CDS shall constitute satisfaction or performance, as applicable, of their respective obligations hereunder. |
- 11 -
(4) | For so long as Warrants are held through CDS, if any notice or other communication is required to be given to Warrantholders, the Warrant Agent will give such notices and communications to CDS. |
(5) | Notwithstanding any other provision in this Indenture, no Uncertificated Warrants may be exchanged in whole or in part for Warrants registered, and no transfer of any Uncertificated Warrants in whole or in part may be registered, in the name of any person other than the Depository for such Uncertificated Warrants or a nominee thereof unless: |
(a) the Depository notifies the Corporation that it is unwilling or unable to continue to act as depository in connection with the Uncertificated Warrants and the Corporation is unable to locate a qualified successor;
(b) the Corporation determines that the Depository is no longer willing, able or qualified to properly discharge its responsibilities as holder of the Uncertificated Warrants and the Corporation is unable to, or does not wish to, locate a qualified successor;
(c) the Depository ceases to be a clearing agency or otherwise ceases to be eligible to be a depository and the Corporation is unable to locate a qualified successor;
(d) the Corporation determines that the Warrants shall no longer be held as Uncertificated Warrants through the Depository;
(e) such right is required by Applicable Legislation, as determined by the Corporation and the Corporation’s Counsel;
(f) the Warrant is to be Authenticated to or for the account or benefit of a person in the United States or a U.S. Person; or
(g) such registration is effected in accordance with the internal procedures of the Depository and the Warrant Agent,
following which, Warrants for those holders requesting the same, in the form of definitive Warrant Certificates representing such Warrants, shall be registered and issued to the Beneficial Owners of such Warrants or their nominees as directed by the holder. The Corporation shall provide a certificate executed by an officer of the Corporation giving notice to the Warrant Agent of the occurrence of any event outlined in this Section 2.6(5).
- 12 -
(6) | Every Warrant that is Authenticated upon registration or transfer of an Uncertificated Warrant, or in exchange for or in lieu of an Uncertificated Warrant or any portion thereof, whether pursuant to this Section 2.6 or otherwise, shall be Authenticated in the form of, and shall be, an Uncertificated Warrant, unless such Warrant is registered in the name of a person other than the Depository for such Uncertificated Warrant or a nominee thereof. |
(7) | The rights of Beneficial Owners who hold securities entitlements in respect of the Warrants through the non-certificated inventory system administered by CDS shall be limited to those established by applicable law and agreements between the Depository and the CDS Participants and between such CDS Participants and the Beneficial Owners who hold securities entitlements in respect of the Warrants through the non-certificated inventory system administered by CDS, and such rights must be exercised through a CDS Participant in accordance with the rules and procedures of the Depository. |
(8) | Notwithstanding anything herein to the contrary, neither the Corporation nor the Warrant Agent nor any agent thereof shall have any responsibility or liability for: |
(a) | the electronic records maintained by the Depository relating to any ownership interests or any other interests in the Warrants or the depository system maintained by the Depository, or payments made on account of any ownership interest or any other interest of any person in any Warrants represented by an electronic position in the non-certificated inventory system administered by CDS (other than the Depository or its nominee); |
(b) | for maintaining, supervising or reviewing any records of the Depository or any CDS Participant relating to any such interest; or |
(c) | any advice or representation made or given by the Depository or those contained herein that relate to the rules and regulations of the Depository or any action to be taken by the Depository on its own direction or at the direction of any CDS Participant. |
(9) | The Corporation may terminate the application of this Section 2.6 in its sole discretion, acting reasonably and after due consultation with the Underwriters, in which case all Warrants shall be evidenced by Warrant Certificates registered in the name of a person other than the Depository. |
(10) | Notwithstanding the foregoing, upon request of the Beneficial Owner, through the Depository, the Warrant Agent shall issue a Warrant Certificate in respect of the interest of such Beneficial Owner, in which case the Uncertificated Warrant representing such Warrants shall be reduced accordingly and such Warrants shall be duly registered as directed by the Depository. |
- 13 -
Section 2.7 Warrant Certificate.
(1) | For Warrants issued in certificated form, the form of certificate representing such Warrants shall be substantially as set out in Schedule “A” hereto or such other form as is authorized from time to time by the Warrant Agent and the Corporation. Each Warrant Certificate shall be Authenticated on behalf of the Warrant Agent. Each Warrant Certificate shall be signed by any two duly authorized signatories of the Corporation; whose signature shall appear on the Warrant Certificate and may be printed, lithographed or otherwise mechanically reproduced thereon and, in such event, certificates so signed are as valid and binding upon the Corporation as if it had been signed manually. Any Warrant Certificate which has two signatures duly executed by the Corporation as hereinbefore provided shall be valid notwithstanding that one or more of the persons whose signature is printed, lithographed or mechanically reproduced no longer holds office at the date of issuance of such Warrant Certificate. The Warrant Certificates may be engraved, printed or lithographed, or partly in one form and partly in another, as the Warrant Agent may determine. |
(2) | The Warrant Agent shall Authenticate Uncertificated Warrants (whether upon original issuance, exchange, registration of transfer, partial payment, or otherwise) by completing its Internal Procedures and the Corporation shall, and hereby acknowledges that it shall, thereupon be deemed to have duly and validly issued such Uncertificated Warrants under this Indenture. Such Authentication shall be conclusive evidence that such Uncertificated Warrant has been duly issued hereunder and that the holder or holders are entitled to the benefits of this Indenture. The register shall be final and conclusive evidence as to all matters relating to Uncertificated Warrants with respect to which this Indenture requires the Warrant Agent to maintain records or accounts. In case of differences between the register at any time and any other time the register at the later time shall be controlling, absent manifest error and such Uncertificated Warrants are binding on the Corporation. |
(3) | Any Warrant Certificate validly issued in accordance with the terms of this Indenture in effect at the time of issue of such Warrant Certificate shall, subject to the terms of this Indenture and Applicable Legislation, validly entitle the holder to acquire Warrant Shares, notwithstanding that the form of such Warrant Certificate may not be in the form currently required by this Indenture. |
(4) | No Warrant shall be considered issued and shall be valid or obligatory or shall entitle the holder thereof to the benefits of this Indenture, until it has been Authenticated by the Warrant Agent. Authentication by the Warrant Agent, including by way of entry on the register, shall not be construed as a representation or warranty by the Warrant Agent as to the validity of this Indenture or of such Warrant Certificates or Uncertificated Warrants (except the due Authentication thereof) or as to the performance by the Corporation of its obligations under this Indenture and the Warrant Agent shall in no respect be liable or answerable for the use made of the Warrants or any of them or of the consideration thereof. Authentication by the Warrant Agent shall be conclusive evidence as against the Corporation that the Warrants so Authenticated have been duly issued hereunder and that the holder thereof is entitled to the benefits of this Indenture. |
- 14 -
(5) | No Warrant Certificate shall be considered issued and Authenticated or, if Authenticated, shall be obligatory or shall entitle the holder thereof to the benefits of this Indenture, until it has been Authenticated by signature by or on behalf of the Warrant Agent substantially in the form of the Warrant set out in Schedule “A” hereto. Such Authentication on any such Warrant Certificate shall be conclusive evidence that such Warrant Certificate is duly Authenticated and is valid and a binding obligation of the Corporation and that the holder is entitled to the benefits of this Indenture. |
(6) | No Uncertificated Warrant shall be considered issued and shall be obligatory or shall entitle the holder thereof to the benefits of this Indenture, until it has been Authenticated by entry on the register of the particulars of the Uncertificated Warrant. Such entry on the register of the particulars of an Uncertificated Warrant shall be conclusive evidence that such Uncertificated Warrant is a valid and binding obligation of the Corporation and that the holder is entitled to the benefits of this Indenture. |
Section 2.8 Legends.
(1) | Neither the Warrants nor the Warrant Shares issuable upon exercise of the Warrants have been or will be registered under the U.S. Securities Laws or under any United States state securities laws. If required under United States securities laws, Warrant Certificates originally issued for the benefit or account of a U.S. Warrantholder and each Warrant Certificate issued in exchange therefor or in substitution thereof shall bear or be deemed to bear the following legends or such variations thereof as the Corporation may prescribe from time to time: |
“THE SECURITIES REPRESENTED HEREBY AND THE SECURITIES DELIVERABLE UPON EXERCISE HEREOF HAVE NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “U.S. SECURITIES ACT”) OR U.S. STATE SECURITIES LAWS. BY PURCHASING OR OTHERWISE HOLDING SUCH SECURITIES, THE HOLDER AGREES FOR THE BENEFIT OF PROTECH HOME MEDICAL CORP. (THE “COMPANY”) THAT THESE SECURITIES MAY BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED, DIRECTLY OR INDIRECTLY, ONLY (A) TO THE COMPANY; OR (B) OUTSIDE THE UNITED STATES IN COMPLIANCE WITH RULE 904 OF REGULATION S UNDER THE U.S. SECURITIES ACT, AND IN COMPLIANCE WITH APPLICABLE LOCAL LAWS AND REGULATIONS; OR (C) IN COMPLIANCE WITH THE EXEMPTION FROM THE REGISTRATION REQUIREMENTS UNDER THE U.S. SECURITIES ACT PROVIDED BY (I) RULE 144, IF AVAILABLE, OR (II) RULE 144A THEREUNDER, IF AVAILABLE, AND IN EACH CASE IN ACCORDANCE WITH APPLICABLE STATE SECURITIES LAWS; OR (D) IN ANOTHER TRANSACTION THAT DOES NOT REQUIRE REGISTRATION UNDER THE U.S. SECURITIES ACT OR ANY APPLICABLE STATE SECURITIES LAWS; OR (E) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE U.S. SECURITIES ACT, PROVIDED THAT, IN THE CASE OF TRANSFERS PURSUANT TO (C)(I) OR (D) ABOVE, THE HOLDER HAS, PRIOR TO SUCH TRANSFER, FURNISHED TO THE COMPANY AN OPINION OF COUNSEL OR OTHER EVIDENCE OF EXEMPTION, IN EITHER CASE REASONABLY SATISFACTORY TO THE COMPANY. DELIVERY OF THIS CERTIFICATE MAY NOT CONSTITUTE “GOOD DELIVERY” IN SETTLEMENT OF TRANSACTIONS ON STOCK EXCHANGES IN CANADA.”;
- 15 -
Provided that, if Warrants are being sold outside the United States in accordance with Rule 904 of Regulation S under the U.S. Securities Act, this legend may be removed by the transferor providing a declaration to the Warrant Agent in the form set forth in Schedule “C” attached hereto or as the Corporation may prescribe from time to time, and if required by the Warrant Agent, an opinion of counsel, of recognized standing reasonably satisfactory to the Corporation and the Warrant Agent, that the legend is no longer required under applicable requirements of the U.S. Securities Act; and provided further, that if any of the Warrants are being sold pursuant to Rule 144 under the U.S. Securities Act, if available, the legend may be removed by delivery to the Corporation and the Warrant Agent of an opinion of counsel of recognized standing reasonably satisfactory to the Corporation and the Warrant Agent to the effect that the legend is no longer required under applicable requirements of the U.S. Securities Act.
The Warrant Agent shall be entitled to request any other documents that it may reasonably require in accordance with its internal policies for the removal of the legend set forth above.
(2) | The certificates or other instruments representing the Warrants issued under the Private Placements, and the certificates or other instruments representing any Warrant Shares issued upon exercise of such Warrants, if issued to a Warrantholder prior to the expiration of the applicable hold period, will bear the following legend in accordance with applicable securities legislation: |
- 16 -
“UNLESS PERMITTED UNDER SECURITIES LEGISLATION, THE HOLDER OF THIS SECURITY MUST NOT TRADE THE SECURITY BEFORE [INSERT DATE WHICH IS 4 MONTHS PLUS 1 DAY FROM ISSUANCE OF WARRANTS].
And, if applicable, the additional legend:
WITHOUT PRIOR APPROVAL OF THE TSX VENTURE EXCHANGE AND COMPLIANCE WITH ALL APPLICABLE SECURITIES LEGISLATION, THE SECURITIES REPRESENTED BY THIS CERTIFICATE AND THE SECURITIES ISSUABLE UPON EXERCISE THEREOF MAY NOT BE SOLD, TRANSFERRED, HYPOTHECATED OR OTHERWISE TRADED ON OR THROUGH THE FACILITIES OF THE TSX VENTURE EXCHANGE OR OTHERWISE IN CANADA OR TO OR FOR THE BENEFIT OF A CANADIAN RESIDENT UNTIL [INSERT DATE WHICH IS 4 MONTHS PLUS 1 DAY FROM ISSUANCE OF WARRANTS].”
(3) | Notwithstanding any other provisions of this Indenture, in processing and registering transfers of Warrants, no duty or responsibility whatsoever shall rest upon the Warrant Agent to determine the compliance by any transferor or transferee with the terms of the legend contained in Section 2.8(1), or with the relevant securities laws or regulations, including, without limitation, Regulation S, and the Warrant Agent shall be entitled to assume that all transfers are legal and proper. |
Section 2.9 Register of Warrants
(1) | The Warrant Agent shall maintain records and accounts concerning the Warrants, whether certificated or uncertificated, which shall contain the information called for below with respect to each Warrant, together with such other information as may be required by law or as the Warrant Agent may elect to record. All such information shall be kept in one set of accounts and records which the Warrant Agent shall designate (in such manner as shall permit it to be so identified as such by an unaffiliated party) as the register of the holders of Warrants. The information to be entered for each account in the register of Warrants at any time shall include (without limitation): |
(a) | the name and address of the Registered Warrantholder, the date of Authentication thereof and the number of Warrants; |
(b) | whether such Warrant is a Warrant Certificate or an Uncertificated Warrant and, if a Warrant Certificate, the unique number or code assigned to and imprinted thereupon and, if an Uncertificated Warrant, the unique number or code assigned thereto if any; |
(c) | whether such Warrant has been cancelled; and |
- 17 -
(d) | a register of transfers in which all transfers of Warrants and the date and other particulars of each transfer shall be entered. |
The register shall be available for inspection by the Corporation and or any Warrantholder during the Warrant Agent’s regular business hours on a Business Day and upon payment to the Warrant Agent of its reasonable fees. Any Warrantholder exercising such right of inspection shall first provide an affidavit in form satisfactory to the Corporation and the Warrant Agent stating the name and address of the Warrantholder and agreeing not to use the information therein except in connection with an effort to call a meeting of Warrantholders or to influence the voting of Warrantholders at any meeting of Warrantholders.
(2) | Once an Uncertificated Warrant has been Authenticated, the information set forth in the register with respect thereto at the time of Authentication may be altered, modified, amended, supplemented or otherwise changed only to reflect exercise or proper instructions to the Warrant Agent from the holder as provided herein, except that the Warrant Agent may act unilaterally to make purely administrative changes internal to the Warrant Agent and changes to correct administrative errors. Each person who becomes a holder of an Uncertificated Warrant, by his, her or its acquisition thereof shall be deemed to have irrevocably (i) consented to the foregoing authority of the Warrant Agent to make such minor error corrections and (ii) agreed to pay to the Warrant Agent, promptly upon written demand, the full amount of all loss and expense (including without limitation reasonable legal fees of the Corporation and the Warrant Agent plus interest, at an appropriate then prevailing rate of interest to the Warrant Agent), sustained by the Corporation or the Warrant Agent as a proximate result of such error if but only if and only to the extent that such present or former holder realized any benefit as a result of such error and could reasonably have prevented, forestalled or minimized such loss and expense by prompt reporting of the error or avoidance of accepting benefits thereof whether or not such error is or should have been timely detected and corrected by the Warrant Agent; provided, that no person who is a bona fide purchaser shall have any such obligation to the Corporation or to the Warrant Agent. |
Section 2.10 Issue in Substitution for Warrant Certificates Lost, etc.
(1) | If any Warrant Certificate becomes mutilated or is lost, destroyed or stolen, the Corporation, subject to applicable law, shall issue and thereupon the Warrant Agent shall certify and deliver, a new Warrant Certificate of like tenor, and bearing the same legend, if applicable, as the one mutilated, lost, destroyed or stolen in exchange for and in place of and upon cancellation of such mutilated Warrant Certificate, or in lieu of and in substitution for such lost, destroyed or stolen Warrant Certificate, and the substituted Warrant Certificate shall be in a form approved by the Warrant Agent and the Warrants evidenced thereby shall be entitled to the benefits hereof and shall rank equally in accordance with its terms with all other Warrants issued or to be issued hereunder. |
- 18 -
(2) | The applicant for the issue of a new Warrant Certificate pursuant to this Section 2.10 shall bear the cost of the issue thereof and in case of loss, destruction or theft shall, as a condition precedent to the issuance thereof, furnish to the Corporation and to the Warrant Agent such evidence of ownership and of the loss, destruction or theft of the Warrant Certificate so lost, destroyed or stolen as shall be satisfactory to the Corporation and to the Warrant Agent, in their sole discretion, acting reasonably, and such applicant shall also be required to furnish an indemnity and surety bond in amount and form satisfactory to the Corporation and the Warrant Agent, in their sole discretion, and shall pay the reasonable charges of the Corporation and the Warrant Agent in connection therewith. |
Section 2.11 Exchange of Warrant Certificates.
(1) | Any one or more Warrant Certificates representing any number of Warrants may, upon compliance with the reasonable requirements of the Warrant Agent (including compliance with Applicable Securities Laws), be exchanged for one or more other Warrant Certificates representing the same aggregate number of Warrants, and bearing the same legend, if applicable, as represented by the Warrant Certificate or Warrant Certificates so exchanged. |
(2) | Warrant Certificates may be exchanged only at the Warrant Agency or at any other place that is designated by the Corporation with the approval of the Warrant Agent. Any Warrant Certificate and duly executed Transaction Instruction from the holder (or such other instructions, in form satisfactory to the Warrant Agent), tendered for exchange shall be surrendered to the Warrant Agency and cancelled by the Warrant Agent. |
(3) | Warrant Certificates exchanged for Warrant Certificates that bear the legend set forth in Section 2.8(1) shall bear the same legend. |
Section 2.12 Transfer and Ownership of Warrants.
(1) | The Warrants may only be transferred on the register kept by the Warrant Agent at the Warrant Agency by the holder or its legal representatives or its attorney duly appointed by an instrument in writing in form and execution satisfactory to the Warrant Agent only upon (a) in the case of a Warrant Certificate, surrendering to the Warrant Agent at the Warrant Agency the Warrant Certificates representing the Warrants to be transferred together with a duly executed transfer form as set forth in Schedule “A” attached hereto, (b) in the case of Warrants registered in the name of CDS, in accordance with the procedures of the Depository under the non certificated inventory system, and (c) upon compliance with: |
- 19 -
(i) | the conditions herein; |
(ii) | such reasonable requirements as the Warrant Agent may prescribe; and |
(iii) | all applicable securities laws and requirements of regulatory authorities; |
and such transfer shall be duly noted in such register by the Warrant Agent. Upon compliance with such requirements, the Warrant Agent shall issue to the transferee of a Warrant Certificate, a Warrant Certificate and to the transferee of an Uncertificated Warrant, an Uncertificated Warrant. Transfers within the systems of the Depository are not the responsibility of the Warrant Agent and will not be noted on the register maintained by the Warrant Agent.
(2) | If a Warrant Certificate tendered for transfer bears any of the legends set forth in Section 2.8(1), the Warrant Agent shall not register such transfer unless the transferor has provided the Warrant Agent with the Warrant Certificate and (A) the transfer is made to the Corporation or (B) a declaration to the effect set forth in Schedule “C” to this Warrant Indenture, or in such other form as the Corporation may from time to time prescribe, is delivered to the Warrant Agent, and if required by the Warrant Agent, the transferor provides an opinion of counsel of recognized standing, reasonably satisfactory to the Corporation and the Warrant Agent that the proposed transfer is exempt from the registration requirements of, and in compliance with, applicable U.S. Securities Laws and that such legends may be removed. |
(3) | Subject to the provisions of this Indenture, Applicable Legislation and applicable law, the Warrantholder shall be entitled to the rights and privileges attaching to the Warrants, and the issue of Warrant Shares by the Corporation upon the exercise of Warrants in accordance with the terms and conditions herein contained shall discharge all responsibilities of the Corporation and the Warrant Agent with respect to such Warrants and neither the Corporation nor the Warrant Agent shall be bound to inquire into the title of any such holder. |
Section 2.13 Cancellation of Surrendered Warrants.
All Warrant Certificates surrendered pursuant to Article 3 shall be cancelled by the Warrant Agent and upon such circumstances all such Uncertificated Warrants, as applicable, shall be deemed cancelled and so noted on the register by the Warrant Agent. Upon request by the Corporation, the Warrant Agent shall furnish to the Corporation a cancellation certificate identifying the Warrant Certificates so cancelled, the number of Warrants evidenced thereby, the number of Warrant Shares, if any, issued pursuant to such Warrants and the details of any Warrant Certificates issued in substitution or exchange for such Warrant Certificates cancelled.
- 20 -
Article 3
EXERCISE OF WARRANTS
Section 3.1 Right of Exercise.
Subject to the provisions hereof, each Registered Warrantholder may exercise the right conferred on such holder to subscribe for and purchase one (1) Warrant Share for each Warrant after the Issue Date and prior to the Expiry Time and in accordance with the conditions herein; provided, however, that if a Warrant tendered for exercise bears the legend set forth in Section 2.8(1), such exercise must be permitted under the U.S. Securities Laws.
Section 3.2 Warrant Exercise.
(1) | Registered Warrantholders of Warrant Certificates who wish to exercise the Warrants held by them in order to acquire Warrant Shares must complete the exercise form (the “Exercise Notice”) attached to the Warrant Certificate(s) which form is attached hereto as Schedule “B”, which may be amended by the Corporation with the consent of the Warrant Agent, if such amendment does not, in the reasonable opinion of the Corporation and the Warrant Agent, which may be based on the advice of Counsel, materially and adversely affect the rights, entitlements and interests of the Warrantholders, and deliver such certificate(s), the executed Exercise Notice and a certified cheque, bank draft, or money order payable to, or to the order of, the Corporation for the aggregate Exercise Price to the Warrant Agent at the Warrant Agency. The Warrants represented by a Warrant Certificate shall be deemed to be surrendered upon personal delivery of such certificate, Exercise Notice and aggregate Exercise Price or, if such documents are sent by mail or other means of transmission, upon actual receipt thereof by the Warrant Agent at the office referred to above. |
(2) | In addition to completing the Exercise Notice attached to the Warrant Certificate(s), a U.S. Warrantholder, or person requesting delivery of the Warrant Shares issuable upon the exercise of the Warrants in the United States must (a) provide a completed and executed U.S. Purchaser Letter or (b) an opinion of counsel of recognized standing in form and substance reasonably satisfactory to the Corporation and the Warrant Agent that the exercise is exempt from the registration requirements of U.S. Securities Laws; provided however that in the case of a U.S. Warrantholder that is the original purchaser of Warrants in the U.S. Offering and who executed and delivered a U.S. Subscription Agreement in connection with its purchase of Units in the U.S. Offering, such U.S. Warrantholder will not be required to deliver a U.S. Purchaser Letter or an opinion of counsel in connection with the due exercise of the Warrant at a time when the representations, warranties and covenants made by the U.S. Warrantholder in the U.S. Subscription Agreement remain true and correct and the U.S. Warrantholder represents to the Corporation as such. |
- 21 -
(3) | No Warrant represented by an Uncertificated Warrant may be exercised unless, prior to such exercise, the Warrantholder of such Warrant shall have taken all other action necessary to exercise such Warrant in accordance with this Indenture and the Internal Procedures. Notwithstanding anything to the contrary contained herein and subject to the Internal Procedures in force from time to time, a Beneficial Owner whose Warrants are represented by an Uncertificated Warrant who desires to exercise his or her Warrants must do so by causing a CDS Participant to deliver to CDS, on behalf of the Beneficial Owner, a written notice of the Beneficial Owner’s intention to exercise Warrants in a manner acceptable to CDS. Forthwith upon receipt by CDS of such notice, as well as payment in an amount equal to the product obtained by multiplying the Exercise Price by the number of Warrant Shares subscribed for, CDS shall deliver to the Warrant Agent a Confirmation. An electronic exercise of the Warrants initiated by the CDS Participant through a non-certificated inventory system, including CDS, shall constitute a representation to both the Corporation and the Warrant Agent that the Beneficial Owner at the time of exercise of such Warrants (a) is not in the United States; (b) is not a U.S. Person and is not exercising such Warrants on behalf of a U.S. Person or a person in the United States; and (c) did not execute or deliver the notice of the owner’s intention to exercise such Warrants in the United States. If the CDS Participant is not able to make or deliver the foregoing representations by initiating the electronic exercise of the Warrants, then such Warrants shall be withdrawn from the non-certificated inventory, including CDS, by the CDS Participant and an individually registered Warrant Certificate shall be issued by the Warrant Agent to such Beneficial Owner or CDS Participant and the exercise procedures set forth in Section 3.2(1) shall be followed. |
(4) | Payment by a Beneficial Owner representing an amount equal to the product obtained by multiplying the Exercise Price by the number of Warrant Shares subscribed for must be provided to the appropriate office of the CDS Participant in a manner acceptable to it. A notice in form acceptable to the CDS Participant and payment from such Beneficial Owner should be provided to the CDS Participant sufficiently in advance so as to permit the CDS Participant to deliver notice and payment to CDS and for CDS in turn to deliver notice and payment to the Warrant Agent prior to Expiry Time. CDS will initiate the exercise by way of the Confirmation and forward the aggregate Exercise Price electronically to the Warrant Agent and the Warrant Agent will execute the exercise by issuing to CDS through the non-certified inventory system administered by CDS the Common Shares to which the exercising Beneficial Owner is entitled pursuant to the exercise. Any expense associated with the exercise process will be for the account of the Beneficial Owner exercising the Warrants and/or the CDS Participant exercising the Warrants on its behalf. |
- 22 -
(5) | Payment representing the aggregate Exercise Price must be provided to the appropriate office of the CDS Participant in a manner acceptable to it. A notice in form acceptable to the CDS Participant and payment from such beneficial holder should be provided to the CDS Participant sufficiently in advance so as to permit the CDS Participant to deliver notice and payment to the Depository and for the Depository in turn to deliver notice and payment to the Warrant Agent prior to the Expiry Time. The Depository will initiate the exercise by way of the Confirmation and forward the aggregate Exercise Price electronically to the Warrant Agent and the Warrant Agent will execute the exercise by issuing to the Depository through the non-certificated inventory system the Warrant Shares to which the exercising Warrantholder is entitled pursuant to the exercise. Any expense associated with the exercise process will be for the account of the entitlement holder exercising the Warrants and/or the CDS Participant exercising the Warrants on its behalf. |
(6) | Notwithstanding any provisions of this Indenture, a Beneficial Owner may exercise its Warrants or take any actions under this Indenture in accordance with the rules and procedures of CDS. By causing a CDS Participant to deliver notice to the Depository, a Warrantholder shall be deemed to have irrevocably surrendered its Warrants so exercised and appointed such CDS Participant to act as its exclusive settlement agent with respect to the exercise and the receipt of Warrant Shares in connection with the obligations arising from such exercise. |
(7) | Any notice which the Depository determines to be incomplete, not in proper form or not duly executed shall for all purposes be void and of no force and effect and the exercise to which it relates shall be considered for all purposes not to have been exercised thereby. A failure by a CDS Participant to exercise or to give effect to the settlement thereof in accordance with the Warrantholder’s instructions will not give rise to any obligations or liability on the part of the Corporation or Warrant Agent to the CDS Participant or the Warrantholder. |
(8) | The Exercise Notice referred to in this Section 3.2 shall be signed by the Registered Warrantholder, or its executors or administrators or other legal representatives or an attorney of the Registered Warrantholder, duly appointed by an instrument in writing satisfactory to the Warrant Agent but Exercise Notice need not be executed by the Depository. |
(9) | Any exercise referred to in this Section 3.2 shall require that the entire Exercise Price for Warrant Shares subscribed must be paid at the time of subscription and such Exercise Price and original Exercise Notice executed by the Registered Warrantholder or the Confirmation from the Depository must be received by the Warrant Agent prior to the Expiry Time. |
(10) | Warrants may only be exercised pursuant to this Section 3.2 by or on behalf of a Registered Warrantholder, as applicable, who makes the certifications set forth on the Exercise Notice set out in Schedule “B” or as provided herein. |
- 23 -
(11) | If the form of Exercise Notice set forth in the Warrant Certificate shall have been amended, the Corporation shall cause the amended Exercise Notice to be forwarded to all Registered Warrantholders. |
(12) | Exercise Notices and Confirmations must be delivered to the Warrant Agent at any time during the Warrant Agent’s actual business hours on any Business Day prior to the Expiry Time. Any Exercise Notice or Confirmations received by the Warrant Agent after business hours on any Business Day other than the Expiry Date will be deemed to have been received by the Warrant Agent on the next following Business Day |
(13) | Any Warrant with respect to which a Confirmation or Exercise Notice is not received by the Warrant Agent before the Expiry Time shall be deemed to have expired and become void and all rights with respect to such Warrants shall terminate and be cancelled. |
Section 3.3 Restrictions on Exercise by U.S. Persons; Legended Certificates
(1) | Subject to Section 3.3(2) below, (i) Warrants may not be exercised within the United States or by or on behalf of any U.S. Person; and (ii) no Warrant Shares issued upon exercise of Warrants may be delivered to any address in the United States. |
(2) | Notwithstanding Section 3.3(1), Warrants which bear the legend set forth in Section 2.8(1) may be exercised in the United States or by or on behalf of a U.S. Person, and Warrant Shares issued upon exercise of any such Warrants may be delivered to an address in the United States, provided that the Person exercising the Warrants delivers a completed and executed U.S. Purchaser Letter or provides in form and substance satisfactory to the Corporation and Warrant Agent a legal opinion which confirms that issuance of shares is in compliance with the applicable state laws and the U.S. Securities Act; provided however that in the case of a U.S. Warrantholder that is the original purchaser of the Warrants in the U.S. Offering and who executed and delivered a U.S. Subscription Agreement in connection with its purchase of Units pursuant to the U.S. Offering, such U.S. Warrantholder will not be required to deliver a U.S. Purchaser Letter or an opinion of counsel in connection with the due exercise of the Warrant at a time when the representations, warranties and covenants made by the U.S. Warrantholder in the U.S. Subscription Agreement remain true and correct and the U.S. Warrantholder represents to the Corporation as such. |
(3) | Certificates representing Warrant Shares issued upon the exercise of Warrants which bear the legend set forth in Section 2.8(1) or which are issued and delivered pursuant to Section 3.3(2) shall bear the following legend: |
- 24 -
“THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “U.S. SECURITIES ACT”) OR U.S. STATE SECURITIES LAWS. BY PURCHASING OR OTHERWISE HOLDING SUCH SECURITIES, THE HOLDER AGREES FOR THE BENEFIT OF PROTECH HOME MEDICAL CORP. (THE “COMPANY”) THAT THESE SECURITIES MAY BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED, DIRECTLY OR INDIRECTLY, ONLY (A) TO THE COMPANY; OR (B) OUTSIDE THE UNITED STATES IN COMPLIANCE WITH RULE 904 OF REGULATION S UNDER THE U.S. SECURITIES ACT, AND IN COMPLIANCE WITH APPLICABLE LOCAL LAWS AND REGULATIONS; OR (C) IN COMPLIANCE WITH THE EXEMPTION FROM THE REGISTRATION REQUIREMENTS UNDER THE U.S. SECURITIES ACT PROVIDED BY (I) RULE 144, IF AVAILABLE, OR (II) RULE 144A THEREUNDER, IF AVAILABLE, AND IN EACH CASE IN ACCORDANCE WITH APPLICABLE STATE SECURITIES LAWS; OR (D) IN ANOTHER TRANSACTION THAT DOES NOT REQUIRE REGISTRATION UNDER THE U.S. SECURITIES ACT OR ANY APPLICABLE STATE SECURITIES LAWS; OR (E) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE U.S. SECURITIES ACT, PROVIDED THAT, IN THE CASE OF TRANSFERS PURSUANT TO (C)(I) OR (D) ABOVE, THE HOLDER HAS, PRIOR TO SUCH TRANSFER, FURNISHED TO THE COMPANY AN OPINION OF COUNSEL OR OTHER EVIDENCE OF EXEMPTION, IN EITHER CASE REASONABLY SATISFACTORY TO THE COMPANY. DELIVERY OF THIS CERTIFICATE MAY NOT CONSTITUTE “GOOD DELIVERY” IN SETTLEMENT OF TRANSACTIONS ON STOCK EXCHANGES IN CANADA.”
(4) | Certificates representing Common Shares issued upon the exercise of Warrant Certificates issued in connection with the Private Placements (and issued in substitution or exchange therefor) prior to the date that is four months and one day after the date hereof shall bear the following legend: |
“UNLESS PERMITTED UNDER SECURITIES LEGISLATION, THE HOLDER OF THIS SECURITY MUST NOT TRADE THE SECURITY BEFORE [NSERT DATE WHICH IS 4 MONTHS PLUS 1 DAY FROM ISSUANCE OF WARRANTS].
And, if applicable, the additional legend as follows:
WITHOUT PRIOR APPROVAL OF THE EXCHANGE AND COMPLIANCE WITH ALL APPLICABLE SECURITIES LEGISLATION, THE SECURITIES REPRESENTED BY THIS CERTIFICATE AND THE SECURITIES ISSUABLE UPON EXERCISE THEREOF MAY NOT BE SOLD, TRANSFERRED, HYPOTHECATED OR OTHERWISE TRADED ON OR THROUGH THE FACILITIES OF THE TSX VENTURE EXCHANGE OR OTHERWISE IN CANADA OR TO OR FOR THE BENEFIT OF A CANADIAN RESIDENT UNTIL [NSERT DATE WHICH IS 4 MONTHS PLUS 1 DAY FROM ISSUANCE OF WARRANTS].”
- 25 -
Section 3.4 Transfer Fees and Taxes.
If any of the Warrant Shares subscribed for are to be issued to a person or persons other than the Registered Warrantholder, the Registered Warrantholder shall execute the form of transfer and will comply with such reasonable requirements as the Warrant Agent may stipulate and will pay to the Corporation or the Warrant Agent on behalf of the Corporation, all applicable transfer or similar taxes and the Corporation will not be required to issue or deliver certificates evidencing Warrant Shares unless or until such Warrantholder shall have paid to the Corporation or the Warrant Agent on behalf of the Corporation, the amount of such tax or shall have established to the satisfaction of the Corporation and the Warrant Agent that such tax has been paid or that no tax is due.
Section 3.5 Warrant Agency.
To facilitate the exchange, transfer or exercise of Warrants and compliance with such other terms and conditions hereof as may be required, the Corporation has appointed the Warrant Agency, as the agency at which Warrants may be surrendered for exchange or transfer or at which Warrants may be exercised and the Warrant Agent has accepted such appointment. The Corporation may from time to time designate alternate or additional places as the Warrant Agency (subject to the Warrant Agent’s prior approval) and will give notice to the Warrant Agent of any proposed change of the Warrant Agency. Branch registers shall also be kept at such other place or places, if any, as the Corporation, with the approval of the Warrant Agent, may designate. The Warrant Agent will from time to time when requested to do so by the Corporation or any Registered Warrantholder, upon payment of the Warrant Agent’s reasonable charges, furnish a list of the names and addresses of Registered Warrantholders showing the number of Warrants held by each such Registered Warrantholder.
Section 3.6 Effect of Exercise of Warrant Certificates.
(1) | Upon the exercise of Warrants Certificates pursuant to and in compliance with Section 3.2 and subject to Section 3.3 and Section 3.4, the Warrant Shares to be issued pursuant to the Warrants exercised shall be deemed to have been issued and the person or persons to whom such Warrant Shares are to be issued shall be deemed to have become the holder or holders of such Warrant Shares within two Business Days of the Exercise Date unless the register shall be closed on such date, in which case the Warrant Shares subscribed for shall be deemed to have been issued and such person or persons deemed to have become the holder or holders of record of such Warrant Shares, on the date on which such register is reopened. It is hereby understood that in order for persons to whom Warrant Shares are to be issued, to become holders of Warrant Shares on record on the Exercise Date, beneficial holders must commence the exercise process sufficiently in advance so that the Warrant Agent is in receipt of all items of exercise at least one Business Day prior to such Exercise Date. |
- 26 -
(2) | Within five Business Days after the Exercise Date with respect to a Warrant, the Warrant Agent shall use commercially reasonable efforts to cause to be delivered or mailed to the person or persons in whose name or names the Warrant is registered or, if so specified in writing by the holder, cause to be delivered to such person or persons at the Warrant Agency where the Warrant Certificate was surrendered, a certificate or certificates for the appropriate number of Warrant Shares subscribed for, or any other appropriate evidence of the issuance of Warrant Shares to such person or persons in respect of Warrant Shares issued under the non-certificated inventory system. |
Section 3.7 Partial Exercise of Warrants; Fractions.
(1) | The holder of any Warrants may exercise its right to acquire a number of whole Warrant Shares less than the aggregate number that the holder is entitled to acquire pursuant to the Warrants exercised in connection therewith. In the event of any exercise of a number of Warrants less than the maximum number that the holder is entitled to exercise, the holder of Warrants upon such exercise shall, in addition, be entitled to receive, without charge therefor, a new Warrant Certificate(s), bearing the same legend, if applicable, or other appropriate evidence of Warrants, in respect of the balance of the Warrants held by such holder and which were not then exercised. |
(2) | Notwithstanding anything herein contained including any adjustment provided for in Section 4.1, the Corporation shall not be required, upon the exercise of any Warrants, to issue fractions of Warrant Shares. Warrants may only be exercised in a sufficient number to acquire whole numbers of Warrant Shares. Any fractional Warrant Shares shall be rounded down to the nearest whole number and the holder of such Warrants shall not be entitled to any compensation in respect of any fractional Warrant Shares that are not issued. |
Section 3.8 Expiration of Warrants.
Immediately after the Expiry Time, all rights under any Warrant in respect of which the right of acquisition provided for herein shall not have been exercised shall cease and terminate and each Warrant shall be void and of no further force or effect.
Section 3.9 Accounting and Recording.
(1) | The Warrant Agent shall promptly account to the Corporation with respect to Warrants exercised, and shall promptly forward to the Corporation (or into an account or accounts of the Corporation with the bank or trust company designated by the Corporation for that purpose), all monies received by the Warrant Agent on the subscription of Warrant Shares through the exercise of Warrants. All such monies and any securities or other instruments, from time to time received by the Warrant Agent, shall be received in trust for, and shall be segregated and kept apart by the Warrant Agent, the Warrantholders and the Corporation as their interests may appear. |
- 27 -
(2) | The Warrant Agent shall record the particulars of Warrants exercised, which particulars shall include the names and addresses of the persons who become holders of Warrant Shares on exercise and the Exercise Date, in respect thereof. The Warrant Agent shall provide such particulars in writing to the Corporation within five Business Days of any request by the Corporation therefor. |
Section 3.10 Securities Restrictions.
Notwithstanding anything herein contained, Warrant Shares will be issued upon exercise of a Warrant only in compliance with the securities laws of any applicable jurisdiction.
Article 4
ADJUSTMENT OF NUMBER OF Warrant SHARES
AND EXERCISE PRICE
Section 4.1 Adjustment of Number of Warrant Shares and Exercise Price.
The subscription rights in effect under the Warrants for Warrant Shares issuable upon the exercise of the Warrants shall be subject to adjustment from time to time as follows:
(a) | if, at any time during the Adjustment Period, the Corporation shall: |
(i) | subdivide, re-divide or change its outstanding Common Shares into a greater number of Common Shares; |
(ii) | reduce, combine or consolidate its outstanding Common Shares into a lesser number of Common Shares; or |
(iii) | issue Common Shares or securities exchangeable for, or convertible into, Common Shares to all or substantially all of the holders of Common Shares by way of stock dividend or other distribution (other than a distribution of Common Shares upon the exercise of Warrants or any outstanding options, such options being issued before the Issue Date); |
- 28 -
(any of such events in Section 4.1(a) (i), (ii) or (iii) being called a “Common Share Reorganization”) then the Exercise Price shall be adjusted as of the effect on the effective date or record date of such subdivision, re-division, change, reduction, combination, consolidation or distribution, as the case may be, shall in the case of the events referred to in (i) or (iii) above be decreased in proportion to the number of outstanding Common Shares resulting from such subdivision, re-division, change or distribution, or shall, in the case of the events referred to in (ii) above, be increased in proportion to the number of outstanding Common Shares resulting from such reduction, combination or consolidation by multiplying the Exercise Price in effect immediately prior to such effective date or record date by a fraction, the numerator of which shall be the number of Common Shares outstanding on such effective date or record date before giving effect to such Common Share Reorganization and the denominator of which shall be the number of Common Shares outstanding as of the effective date or record date after giving effect to such Common Share Reorganization (including, in the case where securities exchangeable for or convertible into Common Shares are distributed, the number of Common Share that would have been outstanding had such securities been exchanged for or converted into Common Shares on such record date or effective date). Such adjustment shall be made successively whenever any event referred to in this Section 4.1(a) shall occur. Upon any adjustment of the Exercise Price pursuant to Section 4.1(a), the Exchange Rate shall be contemporaneously adjusted by multiplying the number of Common Shares theretofore obtainable on the exercise thereof by a fraction of which the numerator shall be the Exercise Price in effect immediately prior to such adjustment and the denominator shall be the Exercise Price resulting from such adjustment;
(b) | if and whenever at any time during the Adjustment Period, the Corporation shall fix a record date for the issuance of rights, options or warrants to all or substantially all the holders of its outstanding Common Shares entitling them, for a period expiring not more than 45 days after such record date, to subscribe for or purchase Common Shares (or securities convertible or exchangeable into Common Shares) at a price per Common Share (or having a conversion or exchange price per Common Share) less than 95% of the Current Market Price on such record date (a “Rights Offering”), the Exercise Price shall be adjusted immediately after such record date so that it shall equal the amount determined by multiplying the Exercise Price in effect on such record date by a fraction, of which the numerator shall be the total number of Common Shares outstanding on such record date plus a number of Common Shares equal to the number arrived at by dividing the aggregate price of the total number of additional Common Shares offered for subscription or purchase (or the aggregate conversion or exchange price of the convertible or exchangeable securities so offered) by the Current Market Price, and of which the denominator shall be the total number of Common Shares outstanding on such record date plus the total number of additional Common Shares offered for subscription or purchase or into which the convertible or exchangeable securities so offered are convertible or exchangeable; any Common Shares owned by or held for the account of the Corporation shall be deemed not to be outstanding for the purpose of any such computation; such adjustment shall be made successively whenever such a record date is fixed; to the extent that no such rights or warrants are exercised prior to the expiration thereof, the Exercise Price shall be readjusted to the Exercise Price which would then be in effect if such record date had not been fixed or, if any such rights or warrants are exercised, to the Exercise Price which would then be in effect based upon the number of Common Shares (or securities convertible or exchangeable into Common Shares) actually issued upon the exercise of such rights or warrants, as the case may be. Upon any adjustment of the Exercise Price pursuant to this Section 4.1(b), the Exchange Rate will be adjusted immediately after such record date so that it will equal the rate determined by multiplying the Exchange Rate in effect on such record date by a fraction, of which the numerator shall be the Exercise Price in effect immediately prior to such adjustment and the denominator shall be the Exercise Price resulting from such adjustment. Such adjustment will be made successively whenever such a record date is fixed, provided that if two or more such record dates or record dates referred to in this Section 4.1(b) are fixed within a period of 25 Trading Days, such adjustment will be made successively as if each of such record dates occurred on the earliest of such record dates; |
- 29 -
(c) | if and whenever at any time during the Adjustment Period the Corporation shall fix a record date for the making of a distribution to all or substantially all the holders of its outstanding Common Shares of (i) securities of any class, whether of the Corporation or any other entity (other than Common Shares), (ii) rights, options or warrants to subscribe for or purchase Common Shares (or other securities convertible into or exchangeable for Common Shares), other than pursuant to a Rights Offering; (iii) evidences of its indebtedness or (iv) any property or other assets then, in each such case, the Exercise Price shall be adjusted immediately after such record date so that it shall equal the price determined by multiplying the Exercise Price in effect on such record date by a fraction, of which the numerator shall be the total number of Common Shares outstanding on such record date multiplied by the Current Market Price on such record date, less the excess, if any, of the fair market value on such record date, as determined by the Corporation (whose determination shall be conclusive), of such securities or other assets so issued or distributed over the fair market value of any consideration received therefor by the Corporation from the holders of the Common Shares, and of which the denominator shall be the total number of Common Shares outstanding on such record date multiplied by the Current Market Price; and Common Shares owned by or held for the account of the Corporation shall be deemed not to be outstanding for the purpose of any such computation; such adjustment shall be made successively whenever such a record date is fixed; to the extent that such distribution is not so made, the Exercise Price shall be readjusted to the Exercise Price which would then be in effect if such record date had not been fixed. Upon any adjustment of the Exercise Price pursuant to this Section 4.1(c), the Exchange Rate will be adjusted immediately after such record date so that it will equal the rate determined by multiplying the Exchange Rate in effect on such record date by a fraction, of which the numerator shall be the Exercise Price in effect immediately prior to such adjustment and the denominator shall be the Exercise Price resulting from such adjustment; |
- 30 -
(d) | if and whenever at any time during the Adjustment Period, there is a reclassification of the Common Shares or a capital reorganization of the Corporation other than as described in Section 4.1(a) or a consolidation, amalgamation, arrangement or merger of the Corporation with or into any other body corporate, trust, partnership or other entity, or a transfer, sale or conveyance of the property and assets of the Corporation as an entirety or substantially as an entirety to any other body corporate, trust, partnership or other entity, any Registered Warrantholder who has not exercised its right of acquisition prior to the effective date of such reclassification, capital reorganization, consolidation, amalgamation, arrangement, transfer, merger, sale or conveyance, upon the exercise of such right thereafter, shall be entitled to receive upon payment of the Exercise Price and shall accept, in lieu of the number of Warrant Shares that prior to such effective date the Registered Warrantholder would have been entitled to receive, the number of shares or other securities or property of the Corporation or of the body corporate, trust, partnership or other entity resulting from such reclassification, change, capital reorganization, arrangement, merger, amalgamation or consolidation, or to which such transfer, sale or conveyance may be made, as the case may be, that such Registered Warrantholder would have been entitled to receive on such reclassification, change, capital reorganization, consolidation, amalgamation, arrangement or merger, transfer, sale or conveyance, if, on the effective date thereof, as the case may be, the Registered Warrantholder had been the registered holder of the number of Warrant Shares to which prior to such effective date it was entitled to acquire upon the exercise of the Warrants. If determined appropriate by the Warrant Agent, relying on advice of Counsel, to give effect to or to evidence the provisions of this Section 4.1(d), the Corporation, its successor, or such purchasing body corporate, partnership, trust or other entity, as the case may be, shall, prior to or contemporaneously with any such reclassification, capital reorganization, consolidation, amalgamation, arrangement, merger, transfer, sale or conveyance, enter into an indenture which shall provide, to the extent possible, for the application of the provisions set forth in this Indenture with respect to the rights and interests thereafter of the Registered Warrantholders to the end that the provisions set forth in this Indenture shall thereafter correspondingly be made applicable, as nearly as may reasonably be possible, with respect to any shares, other securities or property to which a Registered Warrantholder is entitled on the exercise of its acquisition rights thereafter. Any indenture entered into between the Corporation and the Warrant Agent pursuant to the provisions of this Section 4.1(d) shall be a supplemental indenture entered into pursuant to the provisions of Article 8 hereof. Any indenture entered into between the Corporation, any successor to the Corporation or such purchasing body corporate, partnership, trust or other entity and the Warrant Agent shall provide for adjustments which shall be as nearly equivalent as may be practicable to the adjustments provided in this Section 4.1 and which shall apply to successive reclassifications, changes, capital reorganizations, amalgamations, arrangements, consolidations, mergers, sales or conveyances; |
- 31 -
(e) | in any case in which this Section 4.1 shall require that an adjustment shall become effective immediately after a record date for an event referred to herein, the Corporation may defer, until the occurrence of such event, issuing to the Registered Warrantholder of any Warrant exercised after the record date and prior to completion of such event the additional Warrant Shares issuable by reason of the adjustment required by such event before giving effect to such adjustment; provided, however, that the Corporation shall deliver to such Registered Warrantholder an appropriate instrument evidencing such Registered Warrantholder’s right to receive such additional Common Shares upon the occurrence of the event requiring such adjustment and the right to receive any distributions made on such additional Common Shares declared in favour of holders of record of Common Shares on and after the relevant date of exercise or such later date as such Registered Warrantholder would, but for the provisions of this Section 4.1(e), have become the holder of record of such additional Common Shares pursuant to Section 4.1; |
(f) | in any case in which Section 4.1(a)(iii), Section 4.1(b) or Section 4.1(c) require that an adjustment be made to the Exercise Price, no such adjustment shall be made if the Registered Warrantholders of the outstanding Warrants receive, subject to any required stock exchange or regulatory approval, the rights or warrants referred to in Section 4.1(a)(iii), Section 4.1(b) or the shares, rights, options, warrants, evidences of indebtedness or assets referred to in Section 4.1(c), as the case may be, in such kind and number as they would have received if they had been holders of Common Shares on the applicable record date or effective date, as the case may be, by virtue of their outstanding Warrant having then been exercised into Common Shares at the Exercise Price in effect on the applicable record date or effective date, as the case may be; |
(g) | the adjustments provided for in this Section 4.1 are cumulative, and shall, in the case of adjustments to the Exercise Price be computed to the nearest whole cent and shall apply to successive subdivisions, re-divisions, reductions, combinations, consolidations, distributions, dividends, issues or other events resulting in any adjustment under the provisions of this Section 4.1, provided that, notwithstanding any other provision of this Section, no adjustment of the Exercise Price shall be required unless such adjustment would require an increase or decrease of at least 1% in the Exercise Price then in effect; provided, however, that any adjustments which by reason of this Section 4.1(g) are not required to be made shall be carried forward and taken into account in any subsequent adjustment; and |
- 32 -
(h) | after any adjustment pursuant to this Section 4.1, the term “Common Shares” where used in this Indenture shall be interpreted to mean securities of any class or classes which, as a result of such adjustment and all prior adjustments pursuant to this Section 4.1, the Registered Warrantholder is entitled to receive upon the exercise of their Warrant, and the number of Warrant Shares indicated by any exercise made pursuant to a Warrant shall be interpreted to mean the number of Warrant Shares or other property or securities a Registered Warrantholder is entitled to receive, as a result of such adjustment and all prior adjustments pursuant to this Section 4.1, upon the full exercise of a Warrant. |
Section 4.2 Entitlement to Warrant Shares on Exercise of Warrant.
All Common Shares or shares of any class or other securities, which a Registered Warrantholder is at the time in question entitled to receive on the exercise of its Warrant, whether or not as a result of adjustments made pursuant to this Article 4, shall, for the purposes of the interpretation of this Indenture, be deemed to be Warrant Shares which such Registered Warrantholder is entitled to acquire pursuant to such Warrant.
Section 4.3 No Adjustment for Certain Transactions.
Notwithstanding anything in this Article 4, no adjustment shall be made in the acquisition rights attached to the Warrants if the issue of Common Shares is being made pursuant to this Indenture or in connection with (a) any share incentive plan or restricted share plan or share purchase plan in force from time to time for directors, officers, employees, consultants or other service providers of the Corporation; or (b) the satisfaction of existing instruments issued at the date hereof.
Section 4.4 Determination by Independent Firm.
In the event of any question arising with respect to the adjustments provided for in this Article 4 such question shall be conclusively determined by an independent firm of chartered accountants other than the Auditors, who shall have access to all necessary records of the Corporation, and such determination shall be binding upon the Corporation, the Warrant Agent, all holders and all other persons interested therein.
- 33 -
Section 4.5 Proceedings Prior to any Action Requiring Adjustment.
As a condition precedent to the taking of any action which would require an adjustment in any of the acquisition rights pursuant to any of the Warrants, including the number of Warrant Shares which are to be received upon the exercise thereof, the Corporation shall take any action which may, in the opinion of Counsel, be necessary in order that the Corporation has unissued and reserved in its authorized capital and may validly and legally issue as fully paid and non-assessable all the Warrant Shares which the holders of such Warrants are entitled to receive on the full exercise thereof in accordance with the provisions hereof.
Section 4.6 Certificate of Adjustment.
The Corporation shall from time to time immediately after the occurrence of any event which requires an adjustment or readjustment as provided in Section 4.1, deliver a certificate of the Corporation to the Warrant Agent specifying the nature of the event requiring the same and the amount of the adjustment or readjustment necessitated thereby and setting forth in reasonable detail the method of calculation and the facts upon which such calculation is based, which certificate may be supported by a certificate of the Corporation’s Auditors verifying such calculation if requested by the Warrant Agent at their discretion. The Warrant Agent shall rely, and shall be protected in so doing, upon the certificate of the Corporation or of the Corporation’s Auditor and any other document filed by the Corporation pursuant to this Article 4 for all purposes.
Section 4.7 Notice of Special Matters.
The Corporation covenants with the Warrant Agent that, so long as any Warrant remains outstanding, it will give notice to the Warrant Agent and to the Registered Warrantholders of its intention to fix a record date that is prior to the Expiry Date for any matter for which an adjustment may be required pursuant to Section 4.1 Such notice shall specify the particulars of such event and the record date for such event, provided that the Corporation shall only be required to specify in the notice such particulars of the event as shall have been fixed and determined on the date on which the notice is given. The notice shall be given in each case not less than 14 days prior to such applicable record date. If notice has been given and the adjustment is not then determinable, the Corporation shall promptly, after the adjustment is determinable, file with the Warrant Agent a computation of the adjustment and give notice to the Registered Warrantholders of such adjustment computation.
Section 4.8 No Action after Notice.
The Corporation covenants with the Warrant Agent that it will not close its transfer books or take any other corporate action which might deprive the Registered Warrantholder of the opportunity to exercise its right of acquisition pursuant thereto during the period of 14 days after the giving of the certificate or notices set forth in Section 4.6 and Section 4.7.
- 34 -
Section 4.9 Other Action.
If the Corporation, after the date hereof, shall take any action affecting the Common Shares other than action described in Section 4.1, which in the reasonable opinion of the directors of the Corporation would materially affect the rights of Registered Warrantholders, the Exercise Price and/or Exchange Rate, the number of Warrant Shares which may be acquired upon exercise of the Warrants shall be adjusted in such manner and at such time, by action of the directors of the Corporation, acting reasonably and in good faith, in their sole discretion as they may determine to be equitable to the Registered Warrantholders in the circumstances, provided that no such adjustment will be made unless any requisite prior approval of any stock exchange on which the Common Shares are listed for trading has been obtained.
Section 4.10 Protection of Warrant Agent.
The Warrant Agent shall not:
(a) | at any time be under any duty or responsibility to any Registered Warrantholder to determine whether any facts exist which may require any adjustment contemplated by Section 4.1, or with respect to the nature or extent of any such adjustment when made, or with respect to the method employed in making the same; |
(b) | be accountable with respect to the validity or value (or the kind or amount) of any Warrant Shares or of any other securities or property which may at any time be issued or delivered upon the exercise of the rights attaching to any Warrant; |
(c) | be responsible for any failure of the Corporation to issue, transfer or deliver Warrant Shares or certificates for the same upon the surrender of any Warrants for the purpose of the exercise of such rights or to comply with any of the covenants contained in this Article; and |
(d) | incur any liability or be in any way responsible for the consequences of any breach on the part of the Corporation of any of the representations, warranties or covenants herein contained or of any acts of the directors, officers, employees, agents or servants of the Corporation. |
Section 4.11 Participation by Warrantholder.
No adjustments shall be made pursuant to this Article 4 if the Registered Warrantholders are entitled to participate in any event described in this Article 4 on the same terms, mutatis mutandis, as if the Registered Warrantholders had exercised their Warrants prior to, or on the effective date or record date of, such event.
- 35 -
Article 5
RIGHTS OF THE CORPORATION AND COVENANTS
Section 5.1 Optional Purchases by the Corporation.
Subject to compliance with Applicable Securities Laws and approval of applicable regulatory authorities, if any, the Corporation may from time to time purchase by private contract or otherwise any of the Warrants. Any such purchase shall be made at the lowest price or prices at which, in the opinion of the directors of the Corporation, such Warrants are then obtainable, plus reasonable costs of purchase, and may be made in such manner, from such persons and on such other terms as the Corporation, in its sole discretion, may determine. In the case of Warrant Certificates, Warrant Certificates representing the Warrants purchased pursuant to this Section 5.1 shall forthwith be delivered to and cancelled by the Warrant Agent and reflected accordingly on the register of Warrants. In the case of Uncertificated Warrants, the Warrants purchased pursuant to this Section 5.1 shall be reflected accordingly on the register of Warrants and in accordance with procedures prescribed by the Depository. No Warrants shall be issued in replacement thereof.
Section 5.2 General Covenants.
The Corporation covenants with the Warrant Agent that so long as any Warrants remain outstanding:
(a) | it will reserve and keep available a sufficient number of Common Shares for the purpose of enabling it to satisfy its obligations to issue Warrant Shares upon the exercise of the Warrants; |
(b) | it will cause the Warrant Shares from time to time acquired pursuant to the exercise of the Warrants to be duly issued and delivered in accordance with the Warrants and the terms hereof; |
(c) | all Warrant Shares which shall be issued upon exercise of the right to acquire provided for herein shall be fully paid and non-assessable, free and clear of all encumbrances; |
(d) | it will use reasonable commercial efforts to maintain its existence and carry on its business in the ordinary course; |
- 36 -
(e) | it will use reasonable commercial efforts to ensure that all Common Shares outstanding or issuable from time to time (including without limitation the Warrant Shares issuable on the exercise of the Warrants) continue to be or are listed and posted for trading on the TSX-V (or such other Canadian stock exchange acceptable to the Corporation), provided that this clause shall not be construed as limiting or restricting the Corporation from completing a consolidation, amalgamation, arrangement, takeover bid or merger that would result in the Common Shares ceasing to be listed and posted for trading on the TSX-V, so long as the holders of Common Shares receive securities of an entity which is listed on a stock exchange in Canada, or cash, or the holders of the Common shares have approved the transaction in accordance with the requirements of applicable corporate and securities laws and the policies of the TSX-V; |
(f) | it will make all requisite filings under applicable Canadian securities legislation including those necessary to remain a reporting issuer not in default in each of the provinces and other Canadian jurisdictions where it is or becomes a reporting issuer; |
(g) | generally, the Corporation will duly and punctually perform and carry out all of the acts and things to be done by it as provided in this Indenture; and |
(h) | the Corporation will promptly notify the Warrant Agent and the Warrantholders in writing of any default under the terms of this Warrant Indenture which remains unrectified for more than five days following its occurrence. |
Section 5.3 Warrant Agent’s Remuneration and Expenses.
The Corporation covenants that it will pay to the Warrant Agent from time to time reasonable remuneration for its services hereunder and will pay or reimburse the Warrant Agent upon its request for all reasonable expenses, disbursements and advances incurred or made by the Warrant Agent in the administration or execution of its duties hereby created (including the reasonable compensation and the disbursements of its Counsel and all other advisers and assistants not regularly in its employ) both before any default hereunder and thereafter until all duties of the Warrant Agent hereunder shall be finally and fully performed. Any amount owing hereunder and remaining unpaid after 30 days from the invoice date will bear interest at the then current rate charged by the Warrant Agent against unpaid invoices and shall be payable upon demand. This Section shall survive the resignation or removal of the Warrant Agent and/or the termination of this Indenture.
Section 5.4 Performance of Covenants by Warrant Agent.
If the Corporation shall fail to perform any of its covenants contained in this Indenture, the Warrant Agent may notify the Registered Warrantholders of such failure on the part of the Corporation and may itself perform any of the covenants capable of being performed by it but, subject to Section 9.2, shall be under no obligation to perform said covenants or to notify the Registered Warrantholders of such performance by it. All sums expended or advanced by the Warrant Agent in so doing shall be repayable as provided in Section 5.3. No such performance, expenditure or advance by the Warrant Agent shall relieve the Corporation of any default hereunder or of its continuing obligations under the covenants herein contained.
- 37 -
Section 5.5 Enforceability of Warrants.
The Corporation covenants and agrees that it is duly authorized to create and issue the Warrants to be issued hereunder and that the Warrants, when issued and Authenticated as herein provided, will be valid and enforceable against the Corporation in accordance with the provisions hereof and the terms hereof and that, subject to the provisions of this Indenture, the Corporation will cause the Warrant Shares from time to time acquired upon exercise of Warrants issued under this Indenture to be duly issued and delivered in accordance with the terms of this Indenture.
Article 6
ENFORCEMENT
Section 6.1 Suits by Registered Warrantholders.
All or any of the rights conferred upon any Registered Warrantholder by any of the terms of this Indenture may be enforced by the Registered Warrantholder by appropriate proceedings but without prejudice to the right which is hereby conferred upon the Warrant Agent to proceed in its own name to enforce each and all of the provisions herein contained for the benefit of the Registered Warrantholders.
Section 6.2 Suits by the Corporation.
The Corporation shall have the right to enforce full payment of the Exercise Price of all Warrant Shares issued by the Warrant Agent to a Registered Warrantholder hereunder and shall be entitled to demand such payment from the Registered Warrantholder or alternatively to instruct the Warrant Agent to cancel or cause to be cancelled the share certificates representing such Warrant Shares and amend the securities register of the Corporation accordingly.
Section 6.3 Immunity of Shareholders, etc.
Subject to any rights or remedies available to the Warrant Agent and the Warantholder under applicable legislation or otherwise, the Warrant Agent and the Warrantholders hereby waive and release any right, cause of action or remedy now or hereafter existing in any jurisdiction against any incorporator or any past, present or future shareholder, trustee, employee or agent of the Corporation or any successor entity on any covenant, agreement, representation or warranty by the Corporation herein. Only the Corporation (or any successor person) and its property shall be bound in respect hereof.
- 38 -
Section 6.4 Waiver of Default.
Upon the happening of any default hereunder:
(a) | the Registered Warrantholders of not less than 51% of the aggregate number of Warrants then outstanding shall have power (in addition to the powers exercisable by Extraordinary Resolution) by requisition in writing to instruct the Warrant Agent to waive any default hereunder and the Warrant Agent shall thereupon waive the default upon such terms and conditions as shall be prescribed in such requisition; or |
(b) | the Warrant Agent shall have power to waive any default hereunder upon such terms and conditions as the Warrant Agent may deem advisable, on the advice of Counsel, if, in the Warrant Agent’s opinion, based on the advice of Counsel, the same shall have been cured or adequate provision made therefor; |
provided that no delay or omission of the Warrant Agent or of the Registered Warrantholders to exercise any right or power accruing upon any default shall impair any such right or power or shall be construed to be a waiver of any such default or acquiescence therein and provided further that no act or omission either of the Warrant Agent or of the Registered Warrantholders in the premises shall extend to or be taken in any manner whatsoever to affect any subsequent default hereunder of the rights resulting therefrom.
Article 7
MEETINGS OF REGISTERED WARRANTHOLDERS
Section 7.1 Right to Convene Meetings.
The Warrant Agent may at any time and from time to time, and shall on receipt of a written request of the Corporation or of a Warrantholders’ Request and upon being indemnified and funded to its reasonable satisfaction by the Corporation or by the Registered Warrantholders signing such Warrantholders’ Request against the costs which may be incurred in connection with the calling and holding of such meeting, convene a meeting of the Registered Warrantholders. If the Warrant Agent fails to so call a meeting within seven days after receipt of such written request of the Corporation or within 30 days after receipt of such Warrantholders’ Request and the indemnity and funding given as aforesaid, the Corporation or such Registered Warrantholders, as the case may be, may convene such meeting. Every such meeting shall be held in the City of Toronto or at such other place as may be approved or determined by the Warrant Agent and the Corporation.
Section 7.2 Notice.
At least 21 days’ prior written notice of any meeting of Registered Warrantholders shall be given to the Registered Warrantholders in the manner provided for in Section 10.2 and a copy of such notice shall be sent by mail to the Warrant Agent (unless the meeting has been called by the Warrant Agent) and to the Corporation (unless the meeting has been called by the Corporation). Such notice shall state the time when and the place where the meeting is to be held, shall state briefly the general nature of the business to be transacted thereat and shall contain such information as is reasonably necessary to enable the Registered Warrantholders to make a reasoned decision on the matter, but it shall not be necessary for any such notice to set out the terms of any resolution to be proposed or any of the provisions of this Section 7.2.
- 39 -
Section 7.3 Chairman.
An individual (who need not be a Registered Warrantholder) designated in writing by the Warrant Agent shall be chairman of the meeting and if no individual is so designated, or if the individual so designated is not present within fifteen minutes from the time fixed for the holding of the meeting, the Registered Warrantholders present in person or by proxy shall choose an individual present to be chairman.
Section 7.4 Quorum.
Subject to the provisions of Section 7.11, at any meeting of the Registered Warrantholders a quorum shall consist of Registered Warrantholder(s) present in person or by proxy and entitled to purchase at least 25% of the aggregate number of Warrant Shares which may be acquired pursuant to all the then outstanding Warrants. If a quorum of the Registered Warrantholders shall not be present within thirty minutes from the time fixed for holding any meeting, the meeting, if summoned by Registered Warrantholders or on a Warrantholders’ Request, shall be dissolved; but in any other case the meeting shall be adjourned to the same day in the next week (unless such day is not a Business Day, in which case it shall be adjourned to the next following Business Day) at the same time and place and no notice of the adjournment need be given. Any business may be brought before or dealt with at an adjourned meeting which might have been dealt with at the original meeting in accordance with the notice calling the same. No business shall be transacted at any meeting unless a quorum be present at the commencement of business. At the adjourned meeting the Registered Warrantholders present in person or by proxy shall form a quorum and may transact the business for which the meeting was originally convened, notwithstanding that they may not be entitled to acquire at least 25% of the aggregate number of Warrant Shares which may be acquired pursuant to all then outstanding Warrants.
Section 7.5 Power to Adjourn.
The chairman of any meeting at which a quorum of the Registered Warrantholders is present may, with the consent of the meeting, adjourn any such meeting, and no notice of such adjournment need be given except such notice, if any, as the meeting may prescribe.
- 40 -
Section 7.6 Show of Hands.
Every question submitted to a meeting shall be decided in the first place by a majority of the votes given on a show of hands except that votes on an Extraordinary Resolution shall be given in the manner hereinafter provided. At any such meeting, unless a poll is duly demanded as herein provided, a declaration by the chairman that a resolution has been carried or carried unanimously or by a particular majority or lost or not carried by a particular majority shall be conclusive evidence of the fact.
Section 7.7 Poll and Voting.
(1) | On every Extraordinary Resolution, and on any other question submitted to a meeting and after a vote by show of hands when demanded by the chairman or by one or more of the Registered Warrantholders acting in person or by proxy and entitled to acquire in the aggregate at least 5% of the aggregate number of Warrant Shares which may be acquired pursuant to all the Warrants then outstanding, a poll shall be taken in such manner as the chairman shall direct. Questions other than those required to be determined by Extraordinary Resolution shall be decided by a majority of the votes cast on the poll. |
(2) | On a show of hands, every person who is present and entitled to vote, whether as a Registered Warrantholder or as proxy for one or more absent Registered Warrantholders, or both, shall have one vote. On a poll, each Registered Warrantholder present in person or represented by a proxy duly appointed by instrument in writing shall be entitled to one vote in respect of each Warrant then held or represented by it. A proxy need not be a Registered Warrantholder. The chairman of any meeting shall be entitled, both on a show of hands and on a poll, to vote in respect of the Warrants, if any, held or represented by him. |
Section 7.8 Regulations.
(1) | The Warrant Agent, or the Corporation with the approval of the Warrant Agent, may from time to time make and from time to time vary such regulations as it shall think fit, providing for or governing the following: |
(a) | the setting of the record date for a meeting for the purpose of determining Registered Warrantholders entitled to receive notice of and to vote at the meeting; and |
(b) | generally, for the calling of a meeting of Warrantholders and the conduct of business. |
(2) | Any regulations so made shall be binding and effective and the votes given in accordance therewith shall be valid and shall be counted. Save as such regulations may provide, the only persons who shall be recognized at any meeting as a Registered Warrantholder, or be entitled to vote or be present at the meeting in respect thereof (subject to Section 7.9), shall be Registered Warrantholders or proxies of Registered Warrantholders. |
- 41 -
Section 7.9 Corporation and Warrant Agent May be Represented.
The Corporation and the Warrant Agent, by their respective directors, officers, agents, and employees and the Counsel for the Corporation and for the Warrant Agent may attend any meeting of the Registered Warrantholders.
Section 7.10 Powers Exercisable by Extraordinary Resolution.
In addition to all other powers conferred upon them by any other provisions of this Indenture or by law, the Registered Warrantholders at a meeting shall, subject to the provisions of Section 7.11, have the power exercisable from time to time by Extraordinary Resolution:
(a) | to agree to any modification, abrogation, alteration, compromise or arrangement of the rights of Registered Warrantholders or the Warrant Agent in its capacity as warrant agent hereunder (subject to the Warrant Agent’s prior consent, acting reasonably) or on behalf of the Registered Warrantholders against the Corporation whether such rights arise under this Indenture or otherwise; provided that, for greater certainty, no rights or obligations of the Corporation under this Indenture, or the Warrants will be adversely affected without the Corporation’s consent; |
(b) | to amend, alter or repeal any Extraordinary Resolution previously passed or sanctioned by the Registered Warrantholders; |
(c) | to direct or to authorize the Warrant Agent, subject to Section 9.2(2) hereof, to enforce any of the covenants on the part of the Corporation contained in this Indenture or to enforce any of the rights of the Registered Warrantholders in any manner specified in such Extraordinary Resolution or to refrain from enforcing any such covenant or right; |
(d) | to waive, and to direct the Warrant Agent to waive, any default on the part of the Corporation in complying with any provisions of this Indenture either unconditionally or upon any conditions specified in such Extraordinary Resolution; |
(e) | to restrain any Registered Warrantholder from taking or instituting any suit, action or proceeding against the Corporation for the enforcement of any of the covenants on the part of the Corporation in this Indenture or to enforce any of the rights of the Registered Warrantholders; |
- 42 -
(f) | to direct any Registered Warrantholder who, as such, has brought any suit, action or proceeding to stay or to discontinue or otherwise to deal with the same upon payment of the costs, charges and expenses reasonably and properly incurred by such Registered Warrantholder in connection therewith; |
(g) | to assent to any change in or omission from the provisions contained in this Indenture or any ancillary or supplemental instrument which may be agreed to by the Corporation, and to authorize the Warrant Agent to concur in and execute any ancillary or supplemental indenture embodying the change or omission; |
(h) | with the consent of the Corporation, such consent not to be unreasonably withheld, to remove the Warrant Agent or its successor in office and to appoint a new warrant agent or warrant agents to take the place of the Warrant Agent so removed; |
(i) | to sanction any scheme for the consolidation, amalgamation or merger of the Corporation with any other entity or for the sale, lease, transfer or other disposition of all or substantially all of the undertaking, property and assets of the Corporation; and |
(j) | to assent to any compromise or arrangement with any creditor or creditors or any class or classes of creditors, whether secured or otherwise, and with holders of any shares or other securities of the Corporation. |
Section 7.11 Meaning of Extraordinary Resolution.
(1) | The expression “Extraordinary Resolution” when used in this Indenture means, subject as hereinafter provided in this Section 7.11 and in Section 7.14, a resolution proposed at a meeting of Registered Warrantholders duly convened for that purpose and held in accordance with the provisions of this Article 7 at which there are present in person or by proxy Registered Warrantholders holding at least 25% of the aggregate number of Warrant Shares that may be acquired on exercise of the Warrants and passed by the affirmative votes of Registered Warrantholders holding not less than 66 2/3% of the aggregate number of Warrant Shares that may be acquired on exercise of the Warrants at the meeting and voted on the poll upon such resolution. |
(2) | If, at the meeting at which an Extraordinary Resolution is to be considered, Registered Warrantholders holding at least 25% of the aggregate number of Warrant Shares that may be acquired are not present in person or by proxy within 30 minutes after the time appointed for the meeting, then the meeting, if convened by Registered Warrantholders or on a Warrantholders’ Request, shall be dissolved; but in any other case it shall stand adjourned to such day, being not less than 15 or more than 60 days later, and to such place and time as may be appointed by the chairman. Not less than 14 days’ prior notice shall be given of the time and place of such adjourned meeting in the manner provided for in Section 10.2. Such notice shall state that at the adjourned meeting the Registered Warrantholders present in person or by proxy shall form a quorum but it shall not be necessary to set forth the purposes for which the meeting was originally called or any other particulars. At the adjourned meeting the Registered Warrantholders present in person or by proxy shall form a quorum and may transact the business for which the meeting was originally convened and a resolution proposed at such adjourned meeting and passed by the requisite vote as provided in Section 7.11(1) shall be an Extraordinary Resolution within the meaning of this Indenture notwithstanding that Registered Warrantholders entitled to acquire at least 25% of the aggregate number of Warrant Shares which may be acquired pursuant to all the then outstanding Warrants are not present in person or by proxy at such adjourned meeting. |
- 43 -
(3) | Subject to Section 7.14, votes on an Extraordinary Resolution shall always be given on a poll and no demand for a poll on an Extraordinary Resolution shall be necessary. |
Section 7.12 Powers Cumulative.
Any one or more of the powers or any combination of the powers in this Indenture stated to be exercisable by the Registered Warrantholders by Extraordinary Resolution or otherwise may be exercised from time to time and the exercise of any one or more of such powers or any combination of powers from time to time shall not be deemed to exhaust the right of the Registered Warrantholders to exercise such power or powers or combination of powers then or thereafter from time to time.
Section 7.13 Minutes.
Minutes of all resolutions and proceedings at every meeting of Registered Warrantholders shall be made and duly recorded and entered in books to be provided from time to time for that purpose by the Warrant Agent, and any such minutes as aforesaid, if signed by the chairman or the secretary of the meeting at which such resolutions were passed or proceedings had shall be prima facie evidence of the matters therein stated and, until the contrary is proved, every such meeting in respect of the proceedings of which minutes shall have been made shall be deemed to have been duly convened and held, and all resolutions passed thereat or proceedings taken shall be deemed to have been duly passed and taken.
Section 7.14 Instruments in Writing.
All actions which may be taken and all powers that may be exercised by the Registered Warrantholders at a meeting held as provided in this Article 7 may also be taken and exercised by Registered Warrantholders holding at least 66 2/3% of the aggregate number of the then outstanding Warrants by an instrument in writing signed in one or more counterparts by such Registered Warrantholders in person or by attorney duly appointed in writing, and the expression “Extraordinary Resolution” when used in this Indenture shall include an instrument so signed.
- 44 -
Section 7.15 Binding Effect of Resolutions.
Every resolution and every Extraordinary Resolution passed in accordance with the provisions of this Article 7 at a meeting of Registered Warrantholders shall be binding upon all the Warrantholders, whether present at or absent from such meeting, and every instrument in writing signed by Registered Warrantholders in accordance with Section 7.14 shall be binding upon all the Warrantholders, whether signatories thereto or not, and each and every Warrantholder and the Warrant Agent (subject to the provisions for indemnity herein contained) shall be bound to give effect accordingly to every such resolution and instrument in writing.
Section 7.16 Holdings by Corporation Disregarded.
In determining whether Registered Warrantholders holding Warrants evidencing the entitlement to acquire the required number of Warrant Shares are present at a meeting of Registered Warrantholders for the purpose of determining a quorum or have concurred in any consent, waiver, Extraordinary Resolution, Warrantholders’ Request or other action under this Indenture, Warrants owned legally or beneficially by the Corporation or its affiliates shall be disregarded in accordance with the provisions of Section 10.7.
Article 8
SUPPLEMENTAL INDENTURES
Section 8.1 Provision for Supplemental Indentures for Certain Purposes.
From time to time, the Corporation (when authorized by action of the directors of the Corporation) and the Warrant Agent may, subject to the provisions hereof and subject to the prior approval of the TSX-V, as need be, and they shall, when so directed in accordance with the provisions hereof, execute and deliver by their proper officers, indentures or instruments supplemental hereto, which thereafter shall form part hereof, for any one or more or all of the following purposes:
(a) | setting forth any adjustments resulting from the application of the provisions of Article 4; |
(b) | adding to the provisions hereof such additional covenants and enforcement provisions as, in the opinion of Counsel, are necessary or advisable in the premises, provided that the same are not in the opinion of the Warrant Agent, relying on the advice of Counsel, prejudicial to the interests of the Registered Warrantholders; |
(c) | giving effect to any Extraordinary Resolution passed as provided in Section 7.11; |
- 45 -
(d) | making such provisions not inconsistent with this Indenture as may be necessary or desirable with respect to matters or questions arising hereunder or for the purpose of obtaining a listing or quotation of the Warrants on any stock exchange, provided that such provisions are not, in the opinion of the Warrant Agent, relying on the advice of Counsel, prejudicial to the interests of the Registered Warrantholders; |
(e) | adding to or altering the provisions hereof in respect of the transfer of Warrants, making provision for the exchange of Warrants, and making any modification in the form of the Warrant Certificates which does not affect the substance thereof; |
(f) | modifying any of the provisions of this Indenture, including relieving the Corporation from any of the obligations, conditions or restrictions herein contained, provided that such modification or relief shall be or become operative or effective only if, in the opinion of the Warrant Agent, relying on the advice of Counsel, such modification or relief in no way prejudices any of the rights of the Registered Warrantholders or of the Warrant Agent, and provided further that the Warrant Agent may in its sole discretion decline to enter into any such supplemental indenture which in its opinion may not afford adequate protection to the Warrant Agent when the same shall become operative; |
(g) | providing for the issuance of additional Warrants hereunder, including Warrants in excess of the number set out in Section 2.1 and any consequential amendments hereto as may be required by the Warrant Agent relying on the advice of Counsel; and |
(h) | for any other purpose not inconsistent with the terms of this Indenture, including the correction or rectification of any ambiguities, defective or inconsistent provisions, errors, mistakes or omissions herein, provided that in the opinion of the Warrant Agent, relying on the advice of Counsel, the rights of the Warrant Agent and of the Registered Warrantholders are in no way prejudiced thereby. |
Section 8.2 Successor Entities.
In the case of the consolidation, amalgamation, arrangement, merger or transfer of the undertaking or assets of the Corporation as an entirety or substantially as an entirety to or with another entity (“successor entity”), the successor entity resulting from such consolidation, amalgamation, arrangement, merger or transfer (if not the Corporation) shall expressly assume, by supplemental indenture satisfactory in form to the Warrant Agent and executed and delivered to the Warrant Agent, the due and punctual performance and observance of each and every covenant and condition of this Indenture to be performed and observed by the Corporation.
- 46 -
Article 9
CONCERNING THE WARRANT Agent
Section 9.1 Trust Indenture Legislation.
(1) | If and to the extent that any provision of this Indenture limits, qualifies or conflicts with a mandatory requirement of Applicable Legislation, such mandatory requirement shall prevail. |
(2) | The Corporation and the Warrant Agent agree that each will, at all times in relation to this Indenture and any action to be taken hereunder, observe and comply with and be entitled to the benefits of Applicable Legislation. |
Section 9.2 Rights and Duties of Warrant Agent.
(1) | In the exercise of the rights and duties prescribed or conferred by the terms of this Indenture, the Warrant Agent shall act honestly and in good faith with a view to the best interest of the Warrantholders and shall exercise that degree of care, diligence and skill that a reasonably prudent warrant agent would exercise in comparable circumstances. No provision of this Indenture shall be construed to relieve the Warrant Agent from liability for its own gross negligence, wilful misconduct, bad faith or fraud under this Indenture. |
(2) | The obligation of the Warrant Agent to commence or continue any act, action or proceeding for the purpose of enforcing any rights of the Warrant Agent or the Registered Warrantholders hereunder shall be conditional upon the Registered Warrantholders furnishing, when required by notice by the Warrant Agent, sufficient funds to commence or to continue such act, action or proceeding and an indemnity reasonably satisfactory to the Warrant Agent to protect and to hold harmless the Warrant Agent and its officers, directors, employees and agents, against the costs, charges and expenses and liabilities to be incurred thereby and any loss and damage it may suffer by reason thereof. None of the provisions contained in this Indenture shall require the Warrant Agent to expend or to risk its own funds or otherwise to incur financial liability in the performance of any of its duties or in the exercise of any of its rights or powers unless indemnified and funded as aforesaid. |
(3) | The Warrant Agent may, before commencing or at any time during the continuance of any such act, action or proceeding, require the Registered Warrantholders, at whose instance it is acting to deposit with the Warrant Agent the Warrants Certificates held by them, for which Warrants the Warrant Agent shall issue receipts. |
- 47 -
(4) | Every provision of this Indenture that by its terms relieves the Warrant Agent of liability or entitles it to rely upon any evidence submitted to it is subject to the provisions of Applicable Legislation. |
Section 9.3 Evidence, Experts and Advisers.
(1) | In addition to the reports, certificates, opinions and other evidence required by this Indenture, the Corporation shall furnish to the Warrant Agent such additional evidence of compliance with any provision hereof, and in such form, as may be prescribed by Applicable Legislation or as the Warrant Agent may reasonably require by written notice to the Corporation. |
(2) | In the exercise of its rights and duties hereunder, the Warrant Agent may, if it is acting in good faith, rely as to the truth of the statements and the accuracy of the opinions expressed in statutory declarations, opinions, reports, written requests, consents, or orders of the Corporation, certificates of the Corporation or other evidence furnished to the Warrant Agent pursuant to a request of the Warrant Agent, provided that such evidence complies with Applicable Legislation and that the Warrant Agent complies with Applicable Legislation and that the Warrant Agent examines the same and determines that such evidence complies with the applicable requirements of this Indenture. |
(3) | Whenever it is provided in this Indenture or under Applicable Legislation that the Corporation shall deposit with the Warrant Agent resolutions, certificates, reports, opinions, requests, orders or other documents, it is intended that the truth, accuracy and good faith on the effective date thereof and the facts and opinions stated in all such documents so deposited shall, in each and every such case, be conditions precedent to the right of the Corporation to have the Warrant Agent take the action to be based thereon. |
(4) | The Warrant Agent may employ or retain such Counsel, accountants, appraisers or other experts or advisers as it may reasonably require for the purpose of discharging its duties hereunder and may pay reasonable remuneration for all services so performed by any of them, without taxation of costs of any Counsel, and shall not be responsible for any misconduct or negligence on the part of any such experts or advisers who have been appointed with due care by the Warrant Agent. |
(5) | The Warrant Agent may act and rely and shall be protected in acting and relying in good faith on the opinion or advice of or information obtained from any Counsel, accountant, appraiser, engineer or other expert or adviser, whether retained or employed by the Corporation or by the Warrant Agent, in relation to any matter arising in the administration of the agency hereof. |
- 48 -
Section 9.4 Documents, Monies, etc. Held by Warrant Agent.
Until released in accordance with this Indenture, any funds received hereunder shall be kept in segregated records of the Warrant Agent and the Warrant Agent shall place the funds in segregated trust accounts of the Warrant Agent at one or more of the Canadian Chartered Banks listed in Schedule 1 of the Bank Act (Canada) (“Approved Bank”). All amounts held by the Warrant Agent pursuant to this Agreement shall be held by the Warrant Agent for the Corporation and the delivery of the funds to the Warrant Agent shall not give rise to a debtor-creditor or other similar relationship. The amounts held by the Warrant Agent pursuant to this Agreement are at the sole risk of the Corporation and, without limiting the generality of the foregoing, the Warrant Agent shall have no responsibility or liability for any diminution of the funds which may result from any deposit made with an Approved Bank pursuant to this section, including any losses resulting from a default by the Approved Bank or other credit losses (whether or not resulting from such a default). The parties hereto acknowledge and agree that the Warrant Agent will have acted prudently in depositing the funds at any Approved Bank, and that the Warrant Agent is not required to make any further inquiries in respect of any such bank. The Warrant Agent may hold cash balances constituting part or all of such monies and need not, invest the same; the Warrant Agent shall not be liable to account for any profit to any parties to this Indenture or to any other person or entity.
Section 9.5 Actions by Warrant Agent to Protect Interest.
The Warrant Agent shall have power to institute and to maintain such actions and proceedings as it may consider necessary or expedient to preserve, protect or enforce its interests and the interests of the Registered Warrantholders.
Section 9.6 Warrant Agent Not Required to Give Security.
The Warrant Agent shall not be required to give any bond or security in respect of the execution of the agency and powers of this Indenture or otherwise in respect of the premises.
Section 9.7 Protection of Warrant Agent.
By way of supplement to the provisions of any law for the time being relating to the Warrant Agent it is expressly declared and agreed as follows:
(a) | the Warrant Agent shall not be liable for or by reason of any statements of fact or recitals in this Indenture or in the Warrant Certificates (except the representation contained in Section 9.9 or in the Authentication of the Warrant Agent on the Warrant Certificates) or be required to verify the same, but all such statements or recitals are and shall be deemed to be made by the Corporation; |
- 49 -
(b) | nothing herein contained shall impose any obligation on the Warrant Agent to see to or to require evidence of the registration or filing (or renewal thereof) of this Indenture or any instrument ancillary or supplemental hereto; |
(c) | the Warrant Agent shall not be bound to give notice to any person or persons of the execution hereof; |
(d) | the Warrant Agent shall not incur any liability or responsibility whatever or be in any way responsible for the consequence of any breach on the part of the Corporation of any of its covenants herein contained or of any acts of any directors, officers, employees, agents or servants of the Corporation; |
(e) | the Corporation hereby indemnifies and agrees to hold harmless the Warrant Agent, its affiliates, their officers, directors, employees, agents, successors and assigns (the “Indemnified Parties”) from and against any and all liabilities whatsoever, losses, damages, penalties, claims, demands, actions, suits, proceedings, costs, charges, assessments, judgments, expenses and disbursements, including reasonable legal fees and disbursements of whatever kind and nature which may at any time be imposed on or incurred by or asserted against the Indemnified Parties, or any of them, whether at law or in equity, in any way caused by or arising, directly or indirectly, in respect of any act, deed, matter or thing whatsoever made, done, acquiesced in or omitted in or about or in relation to the execution of the Indemnified Parties’ duties, or any other services that Warrant Agent may provide in connection with or in any way relating to this Indenture. The Corporation agrees that its liability hereunder shall be absolute and unconditional regardless of the correctness of any representations of any third parties and regardless of any liability of third parties to the Indemnified Parties, and shall accrue and become enforceable without prior demand or any other precedent action or proceeding; provided that the Corporation shall not be required to indemnify the Indemnified Parties in the event of the gross negligence or wilful misconduct of the Warrant Agent, and this provision shall survive the resignation or removal of the Warrant Agent or the termination or discharge of this Indenture; and |
(f) | notwithstanding the foregoing or any other provision of this Indenture, any liability of the Warrant Agent shall be limited, in the aggregate, to the amount of annual retainer fees paid by the Corporation to the Warrant Agent under this Indenture in the twelve (12) months immediately prior to the Warrant Agent receiving the first notice of the claim. Notwithstanding any other provision of this Indenture, and whether such losses or damages are foreseeable or unforeseeable, the Warrant Agent shall not be liable under any circumstances whatsoever for any (a) breach by any other party of securities law or other rule of any securities regulatory authority, (b) lost profits or (c) special, indirect, incidental, consequential, exemplary, aggravated or punitive losses or damages. |
- 50 -
(g) | The forwarding of a cheque or the sending of funds by wire transfer by the Warrant Agent will satisfy and discharge the liability of any amounts due to the extent of the sum represented thereby unless such cheque is not honoured on presentation, provided that in the event of the non-receipt of such cheque by the payee, or the loss or destruction thereof, the Warrant Agent, upon being furnished with reasonable evidence of such non-receipt, loss or destruction and indemnity reasonably satisfactory to it, will issue to such payee a replacement cheque for the amount of such cheque |
Section 9.8 Replacement of Warrant Agent; Successor by Merger.
(1) | The Warrant Agent may resign its agency and be discharged from all further duties and liabilities hereunder, subject to this Section 9.8, by giving to the Corporation not less than 60 days’ prior notice in writing or such shorter prior notice as the Corporation may accept as sufficient. The Registered Warrantholders by Extraordinary Resolution and with the consent of the Corporation (such consent not be unreasonably withheld) shall have power at any time to remove the existing Warrant Agent and to appoint a new warrant agent. In the event of the Warrant Agent resigning or being removed as aforesaid or being dissolved, becoming bankrupt, going into liquidation or otherwise becoming incapable of acting hereunder, the Corporation shall forthwith appoint a new warrant agent unless a new warrant agent has already been appointed by the Registered Warrantholders; failing such appointment by the Corporation, the retiring Warrant Agent or any Registered Warrantholder may apply to a judge of the Ontario Superior Court of the Province of Ontario on such notice as such judge may direct, for the appointment of a new warrant agent; but any new warrant agent so appointed by the Corporation or by the Court shall be subject to removal as aforesaid by the Registered Warrantholders. Any new warrant agent appointed under any provision of this Section 9.8 shall be an entity authorized to carry on the business of a trust company in the Province of Ontario and, if required by the Applicable Legislation for any other provinces, in such other provinces. On any such appointment the new warrant agent shall be vested with the same powers, rights, duties and responsibilities as if it had been originally named herein as Warrant Agent hereunder. |
(2) | Upon the appointment of a successor warrant agent, the Corporation shall promptly notify the Registered Warrantholders thereof in the manner provided for in Section 10.2. |
(3) | Any Warrant Certificates Authenticated but not delivered by a predecessor Warrant Agent may be Authenticated by the successor Warrant Agent in the name of the predecessor or successor Warrant Agent. |
- 51 -
(4) | Any corporation into which the Warrant Agent may be merged or consolidated or amalgamated or to which all or substantially all of its corporate trust business is sold or otherwise transferred, or any corporation resulting therefrom to which the Warrant Agent shall be a party, or any corporation succeeding to substantially all of the corporate trust business of the Warrant Agent shall be the successor to the Warrant Agent hereunder without any further act on its part or any of the parties hereto, provided that such corporation would be eligible for appointment as successor Warrant Agent under Section 9.8(1). |
Section 9.9 Conflict of Interest
(1) | The Warrant Agent represents to the Corporation that to the best of its knowledge, at the time of execution and delivery of this Agreement hereof no material conflict of interest exists with respect to the Warrant Agent role as agent hereunder. |
(2) | Subject to Section 9.9(1), the Warrant Agent, in its personal or any other capacity, may buy, lend upon and deal in securities of the Corporation and generally may contract and enter into financial transactions with the Corporation without being liable to account for any profit made thereby. |
Section 9.10 Acceptance of Agency
The Warrant Agent hereby accepts the agency in this Indenture declared and provided for and agrees to perform the same upon the terms and conditions herein set forth.
Section 9.11 Warrant Agent Not to be Appointed Receiver.
The Warrant Agent and any person related to the Warrant Agent shall not be appointed a receiver, a receiver and manager or liquidator of all or any part of the assets or undertaking of the Corporation.
Section 9.12 Warrant Agent Not Required to Give Notice of Default.
The Warrant Agent shall not be bound to give any notice or do or take any act, action or proceeding by virtue of the powers conferred on it hereby unless and until it shall have been required so to do under the terms hereof; nor shall the Warrant Agent be required to take notice of any default hereunder, unless and until notified in writing of such default, which notice shall distinctly specify the default desired to be brought to the attention of the Warrant Agent and the Warrant Agent shall promptly provide the Warrantholders with any such notice and in the absence of any such notice the Warrant Agent may for all purposes of this Indenture conclusively assume that no default has been made in the observance or performance of any of the representations, warranties, covenants, agreements or conditions contained herein. Any such notice shall in no way limit any discretion herein given to the Warrant Agent to determine whether or not the Warrant Agent shall take action with respect to any default.
- 52 -
Section 9.13 Anti-Money Laundering.
(1) | Each party to this Agreement other than the Warrant Agent hereby represents to the Warrant Agent that any account to be opened by, or interest to be held by the Warrant Agent in connection with this Agreement, for or to the credit of such party, either (i) is not intended to be used by or on behalf of any third party; or (ii) is intended to be used by or on behalf of a third party, in which case such party hereto agrees to complete and execute forthwith a declaration in the Warrant Agent’s prescribed form as to the particulars of such third party. |
(2) | The Warrant Agent shall retain the right not to act and shall not be liable for refusing to act if, due to a lack of information or for any other reason whatsoever, the Warrant Agent, in its sole judgment, determines that such act might cause it to be in non-compliance with any applicable anti-money laundering, anti-terrorist or economic sanctions legislation, regulation or guideline. Further, should the Warrant Agent, in its sole judgment, determine at any time that its acting under this Indenture has resulted in its being in non-compliance with any applicable anti-money laundering, anti-terrorist or economic sanctions legislation, regulation or guideline, then it shall have the right to resign on ten (10) days written notice to the other parties to this Indenture, provided (i) that the Warrant Agent’s written notice shall describe the circumstances of such non-compliance; and (ii) that if such circumstances are rectified to the Warrant Agent’s satisfaction within such ten (10) day period, then such resignation shall not be effective. |
Section 9.14 Compliance with Privacy Code.
The parties acknowledge that the Warrant Agent may, in the course of providing services hereunder, collect or receive financial and other personal information about such parties and/or their representatives, as individuals, or about other individuals related to the subject matter hereof, and use such information for the following purposes:
(a) | to provide the services required under this Indenture and other services that may be requested from time to time; |
(b) | to help the Warrant Agent manage its servicing relationships with such individuals; |
(c) | to meet the Warrant Agent’s legal and regulatory requirements; and |
(d) | if Social Insurance Numbers are collected by the Warrant Agent, to perform tax reporting and to assist in verification of an individual’s identity for security purposes. |
- 53 -
Each party acknowledges and agrees that the Warrant Agent may receive, collect, use and disclose personal information provided to it or acquired by it in the course of its acting as agent hereunder for the purposes described above and, generally, in the manner and on the terms described in its privacy code, which the Warrant Agent shall make available on its website, www.computershare.com, or upon request, including revisions thereto. The Warrant Agent may transfer personal information to other companies in or outside of Canada that provide data processing and storage or other support in order to facilitate the services it provides.
Further, each party agrees that it shall not provide or cause to be provided to the Warrant Agent any personal information relating to an individual who is not a party to this Indenture unless that party has assured itself that such individual understands and has consented to the aforementioned uses and disclosures.
Section 9.15 Securities Exchange Commission Certification.
The Corporation confirms that as at the date of execution of this Agreement it does not have a class of securities registered pursuant to Section 12 of the U.S. Exchange Act or have a reporting obligation pursuant to Section 15(d) of the U.S. Exchange Act.
The Corporation covenants that in the event that (i) any class of its securities shall become registered pursuant to Section 12 of the U.S. Exchange Act or Corporation shall incur a reporting obligation pursuant to Section 15(d) of the U.S. Exchange Act, or (ii) any such registration or reporting obligation shall be terminated by the Corporation in accordance with the U.S. Exchange Act, the Corporation shall promptly deliver to the Warrant Agent an officers’ certificate (in a form provided by the Warrant Agent) notifying the Warrant Agent of such registration or termination and such other information as the Warrant Agent may require at the time. The Corporation acknowledges that Warrant Agent is relying upon the foregoing representation and covenants in order to meet certain SEC obligations with respect to those clients who are filing with the SEC.
Article 10
GENERAL
Section 10.1 Notice to the Corporation and the Warrant Agent.
(1) | Unless herein otherwise expressly provided, any notice to be given hereunder to the Corporation or the Warrant Agent shall be deemed to be validly given if delivered, sent by registered letter, postage prepaid or if emailed: |
(a) | If to the Corporation: | |
Protech Home Medical Corp. 1019 Town Drive Wilder, Kentucky 41076 |
- 54 -
Attention: Gregory Crawford, Chairman and Chief Executive Officer | ||
Email: gcrawford@myphm.com |
(b) | If to the Warrant Agent: | |
Computershare Trust Company of
Canada
3rd Floor, 510 Burrard Street, Vancouver, BC V6C 3B9 Attention: General Manager, Corporate Trust Department |
||
Email: corporatetrust.vancouver@computershare.com |
and any such notice delivered in accordance with the foregoing shall be deemed to have been received and given on the date of delivery or, if mailed, on the fifth Business Day following the date of mailing such notice or, if emailed, on the next Business Day following the date of transmission.
(2) | The Corporation or the Warrant Agent, as the case may be, may from time to time notify the other in the manner provided in Section 10.1(1) of a change of address which, from the effective date of such notice and until changed by like notice, shall be the address of the Corporation or the Warrant Agent, as the case may be, for all purposes of this Indenture. |
(3) | If, by reason of a strike, lockout or other work stoppage, actual or threatened, involving postal employees, any notice to be given to the Warrant Agent or to the Corporation hereunder could reasonably be considered unlikely to reach its destination, such notice shall be valid and effective only if it is delivered to the named officer of the party to which it is addressed, as provided in Section 10.1(1), or given by email or other means of prepaid, transmitted and recorded communication. |
(4) | Accidental error or omission in giving notice or accidental failure to mail notice to any Warrantholder will not invalidate any action or proceeding founded thereon. |
Section 10.2 Notice to Registered Warrantholders.
(1) | Unless otherwise provided herein, notice to the Registered Warrantholders under the provisions of this Indenture shall be valid and effective if delivered or sent by ordinary prepaid post addressed to such holders at their post office addresses appearing on the register hereinbefore mentioned and shall be deemed to have been effectively received and given on the date of delivery or, if mailed, on the third Business Day following the date of mailing such notice. In the event that Warrants are held in the name of the Depository, a copy of such notice shall also be sent by electronic communication to the Depository and shall be deemed received and given on the day it is so sent. |
- 55 -
(2) | If, by reason of a strike, lockout or other work stoppage, actual or threatened, involving postal employees, any notice to be given to the Registered Warrantholders hereunder could reasonably be considered unlikely to reach its destination, such notice shall be valid and effective only if it is delivered to such Registered Warrantholders to the address for such Registered Warrantholders contained in the register maintained by the Warrant Agent or such notice may be given, at the Corporation’s expense, by means of publication in the Globe and Mail, National Edition, or any other English language daily newspaper or newspapers of general circulation in Canada, in each two successive weeks, the first such notice to be published within 5 business days of such event, and any so notice published shall be deemed to have been received and given on the latest date the publication takes place. |
Section 10.3 Ownership of Warrants.
The Corporation and the Warrant Agent may deem and treat the Registered Warrantholders as the absolute owner thereof for all purposes, and the Corporation and the Warrant Agent shall not be affected by any notice or knowledge to the contrary except where the Corporation or the Warrant Agent is required to take notice by statute or by order of a court of competent jurisdiction. The receipt of any such Registered Warrantholder of the Warrant Shares which may be acquired pursuant thereto shall be a good discharge to the Corporation and the Warrant Agent for the same and neither the Corporation nor the Warrant Agent shall be bound to inquire into the title of any such holder except where the Corporation or the Warrant Agent is required to take notice by statute or by order of a court of competent jurisdiction.
Section 10.4 Counterparts.
This Indenture may be executed in several counterparts, each of which when so executed shall be deemed to be an original and such counterparts together shall constitute one and the same instrument and notwithstanding their date of execution they shall be deemed to be dated as of the date hereof. Delivery of an executed copy of the Indenture by electronic transmission or other means of electronic communication capable of producing a printed copy will be deemed to be execution and delivery of this Indenture as of the date hereof.
Section 10.5 Satisfaction and Discharge of Indenture.
Upon the earlier of:
(a) | the date by which there shall have been delivered to the Warrant Agent for exercise or cancellation all Warrants theretofore Authenticated hereunder; and |
- 56 -
(b) | the Expiry Time; |
and if all certificates or other entry on the register representing Warrant Shares required to be issued in compliance with the provisions hereof have been issued and delivered hereunder or to the Warrant Agent in accordance with such provisions, this Indenture shall cease to be of further effect and the Warrant Agent, on demand of and at the cost and expense of the Corporation and upon delivery to the Warrant Agent of a certificate of the Corporation stating that all conditions precedent to the satisfaction and discharge of this Indenture have been complied with, shall execute proper instruments acknowledging satisfaction of and discharging this Indenture. Notwithstanding the foregoing, the indemnities provided to the Warrant Agent by the Corporation hereunder shall remain in full force and effect and survive the termination of this Indenture.
Section 10.6 Provisions of Indenture and Warrants for the Sole Benefit of Parties and Registered Warrantholders.
Nothing in this Indenture or in the Warrants, expressed or implied, shall give or be construed to give to any person other than the parties hereto and the Registered Warrantholders, as the case may be, any legal or equitable right, remedy or claim under this Indenture, or under any covenant or provision herein or therein contained, all such covenants and provisions being for the sole benefit of the parties hereto and the Registered Warrantholders.
Section 10.7 Common Shares or Warrants Owned by the Corporation or its Subsidiaries - Certificate to be Provided.
For the purpose of disregarding any Warrants owned legally or beneficially by the Corporation in Section 7.16, the Corporation shall provide to the Warrant Agent, from time to time, a certificate of the Corporation setting forth as at the date of such certificate:
(a) | the names (other than the name of the Corporation) of the Registered Warrantholders which, to the knowledge of the Corporation, are owned by or held for the account of the Corporation or its affiliates; and |
(b) | the number of Warrants owned legally or beneficially by the Corporation or its affiliates; |
and the Warrant Agent, in making the computations shall be entitled to rely on such certificate without any additional evidence.
Section 10.8 Severability
If, in any jurisdiction, any provision of this Indenture or its application to any party or circumstance is restricted, prohibited or unenforceable, such provision will, as to such jurisdiction, be ineffective only to the extent of such restriction, prohibition or unenforceability without invalidating the remaining provisions of this Indenture and without affecting the validity or enforceability of such provision in any other jurisdiction or without affecting its application to other parties or circumstances.
- 57 -
Section 10.9 Force Majeure
No party shall be liable to the other, or held in breach of this Indenture, if prevented, hindered, or delayed in the performance or observance of any provision contained herein by reason of act of God, riots, terrorism, acts of war, epidemics, governmental action or judicial order, earthquakes, or any other similar causes (including, but not limited to, mechanical, electronic or communication interruptions, disruptions or failures). Performance times under this Indenture shall be extended for a period of time equivalent to the time lost because of any delay that is excusable under this Section.
Section 10.10 Assignment, Successors and Assigns
Neither of the parties hereto may assign its rights or interest under this Indenture, except as provided in Section 9.8 in the case of the Warrant Agent, or as provided in Section 8.2 in the case of the Corporation. Subject thereto, this Indenture shall enure to the benefit of and be binding upon the parties hereto and their respective successors and permitted assigns.
Section 10.11 Rights of Rescission and Withdrawal for Holders
Should a holder of Warrants exercise any legal, statutory, contractual or other right of withdrawal or rescission that may be available to it, and the holder’s funds which were paid on exercise have already been released to the Corporation by the Warrant Agent, the Warrant Agent shall not be responsible for ensuring the exercise is cancelled and a refund is paid back to the holder. In such cases, the holder shall seek a refund directly from the Corporation and subsequently, the Corporation, upon surrender to the Corporation or the Warrant Agent of any underlying Warrant Shares or other securities that may have been issued, or such other procedure as agreed to by the parties hereto, shall instruct the Warrant Agent in writing, to cancel the exercise transaction and any such underlying Warrant Shares or other securities on the register, which may have already been issued upon the Warrant exercise. In the event that any payment is received from the Corporation by virtue of the holder being a shareholder for such Warrants that were subsequently rescinded, such payment must be returned to the Corporation by such holder. The Warrant Agent shall not be under any duty or obligation to take any steps to ensure or enforce the return of the funds pursuant to this section, nor shall the Warrant Agent be in any other way responsible in the event that any payment is not delivered or received pursuant to this section. Notwithstanding the foregoing, in the event that the Corporation provides the refund to the Warrant Agent for distribution to the holder, the Warrant Agent shall return such funds to the holder as soon as reasonably practicable, and in so doing, the Warrant Agent shall incur no liability with respect to the delivery or non-delivery of any such funds.
- 58 -
IN WITNESS WHEREOF the parties hereto have executed this Indenture under the hands of their proper officers in that behalf as of the date first written above.
|
PROTECH HOME MEDICAL CORP. |
|
By: | ||
Name: Gregory Crawford | ||
Title: Chairman and Chief Executive Officer | ||
COMPUTERSHARE TRUST COMPANY OF CANADA | ||
By: | ||
Name: | ||
Title: | ||
By: | ||
Name: | ||
Title: |
A-1
Schedule “A”
Form of Warrant
THE WARRANTS EVIDENCED HEREBY ARE EXERCISABLE AT OR BEFORE 4:00 P.M. (TORONTO TIME) ON JUNE 29, 2021, AFTER WHICH TIME THE WARRANTS EVIDENCED HEREBY SHALL BE DEEMED TO BE VOID AND OF NO FURTHER FORCE OR EFFECT.
For all Warrants issued in connection with the Private Placement include the following legend until such time as it is no longer required in accordance with applicable Canadian securities laws and TSX Venture Exchange policies:
UNLESS PERMITTED UNDER SECURITIES LEGISLATION, THE HOLDER OF THIS SECURITY MUST NOT TRADE THE SECURITY BEFORE OCTOBER 30, 2020.
(INSERT IF APPLICABLE) WITHOUT PRIOR APPROVAL OF THE TSX VENTURE EXCHANGE AND COMPLIANCE WITH ALL APPLICABLE SECURITIES LEGISLATION, THE SECURITIES REPRESENTED BY THIS CERTIFICATE AND THE SECURITIES ISSUABLE UPON EXERCISE THEREOF MAY NOT BE SOLD, TRANSFERRED, HYPOTHECATED OR OTHERWISE TRADED ON OR THROUGH THE FACILITIES OF THE TSX VENTURE EXCHANGE OR OTHERWISE IN CANADA OR TO OR FOR THE BENEFIT OF A CANADIAN RESIDENT UNTIL OCTOBER 30, 2020.
For all Warrants registered in the name of the Depository, the also include the following legend:
(INSERT IF BEING ISSUED TO CDS)UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF CDS CLEARING AND DEPOSITORY SERVICES INC. (“CDS”) TO PROTECH HOME MEDICAL CORP. (THE “ISSUER”) OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IN RESPECT THEREOF IS REGISTERED IN THE NAME OF CDS & CO., OR SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF CDS (AND ANY PAYMENT IS MADE TO CDS & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF CDS), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE THE REGISTERED HOLDER HEREOF, CDS & CO., HAS A PROPERTY INTEREST IN THE SECURITIES REPRESENTED BY THIS CERTIFICATE HEREIN AND IT IS A VIOLATION OF ITS RIGHTS FOR ANOTHER PERSON TO HOLD, TRANSFER OR DEAL WITH THIS CERTIFICATE.
For Warrants sold to a U.S. Warrantholder, also include the following legends:
“THE SECURITIES REPRESENTED HEREBY AND THE SECURITIES DELIVERABLE UPON EXERCISE HEREOF HAVE NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “U.S. SECURITIES ACT”) OR U.S. STATE SECURITIES LAWS. BY PURCHASING OR OTHERWISE HOLDING SUCH SECURITIES, THE HOLDER AGREES FOR THE BENEFIT OF PROTECH HOME MEDICAL CORP. (THE “COMPANY”) THAT THESE SECURITIES MAY BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED, DIRECTLY OR INDIRECTLY, ONLY (A) TO THE COMPANY; OR (B) OUTSIDE THE UNITED STATES IN COMPLIANCE WITH RULE 904 OF REGULATION S UNDER THE U.S. SECURITIES ACT, AND IN COMPLIANCE WITH APPLICABLE LOCAL LAWS AND REGULATIONS; OR (C) IN COMPLIANCE WITH THE EXEMPTION FROM THE REGISTRATION REQUIREMENTS UNDER THE U.S. SECURITIES ACT PROVIDED BY (I) RULE 144, IF AVAILABLE, OR (II) RULE 144A THEREUNDER, IF AVAILABLE, AND IN EACH CASE IN ACCORDANCE WITH APPLICABLE STATE SECURITIES LAWS; OR (D) IN ANOTHER TRANSACTION THAT DOES NOT REQUIRE REGISTRATION UNDER THE U.S. SECURITIES ACT OR ANY APPLICABLE STATE SECURITIES LAWS; OR (E) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE U.S. SECURITIES ACT, PROVIDED THAT, IN THE CASE OF TRANSFERS PURSUANT TO (C)(I) OR (D) ABOVE, THE HOLDER HAS, PRIOR TO SUCH TRANSFER, FURNISHED TO THE COMPANY AN OPINION OF COUNSEL OR OTHER EVIDENCE OF EXEMPTION, IN EITHER CASE REASONABLY SATISFACTORY TO THE COMPANY. DELIVERY OF THIS CERTIFICATE MAY NOT CONSTITUTE “GOOD DELIVERY” IN SETTLEMENT OF TRANSACTIONS ON STOCK EXCHANGES IN CANADA.”
A-2
WARRANT
To acquire Common Shares of
PROTECH HOME MEDICAL CORP.
(existing under the laws of the Province of British Columbia)
Warrant
Certificate No. [*] |
Certificate for Warrants, each entitling the holder to acquire one (1) Common Share (subject to adjustment as provided for in the Warrant Indenture)
|
[If issued under the Prospectus Offering | |
CUSIP 74365L123 | |
ISIN CA 74365L1233] | |
[If issued under the Private Placements | |
CUSIP 74365L131 | |
ISIN CA 74365L1316] |
THIS IS TO CERTIFY THAT, for value received,
(the “Warrantholder”) is the registered holder of the number of common share purchase warrants (the “Warrants”) of Protech Home Medical Corp. (the “Corporation”) specified above, and is entitled, on exercise of these Warrants upon and subject to the terms and conditions set forth herein and in the Warrant Indenture, to purchase at any time before 4:00 p.m. (Toronto time) (the “Expiry Time”) on June 29, 2021 (the “Expiry Date”) one fully paid and non-assessable common share without par value in the capital of the Corporation as constituted on the date hereof (a “Common Share”) for each Warrant subject to adjustment in accordance with the terms of the Warrant Indenture. Any capitalized terms used and not otherwise defined in this Warrant Certificate have the meaning ascribed thereto in the Warrant Indenture.
The Warrants evidenced hereby are exercisable at or before the Expiry Time, after which time the Warrants evidenced hereby shall be deemed to be void and of no further force or effect.
A-3
The right to purchase Common Shares may only be exercised by the Warrantholder within the time set forth above by:
(a) duly completing and executing the exercise form (the “Exercise Form”) attached hereto; and
(b) surrendering this warrant certificate (the “Warrant Certificate”), with the Exercise Form to the Warrant Agent at the principal office of the Warrant Agent, in the city of Vancouver, British Columbia, together with a certified cheque, bank draft or money order in the lawful money of Canada payable to or to the order of the Corporation in an amount equal to the purchase price of the Common Shares so subscribed for.
The surrender of this Warrant Certificate, the duly completed Exercise Form and payment as provided above will be deemed to have been effected only on personal delivery thereof to, or if sent by mail or other means of transmission on actual receipt thereof by, the Warrant Agent at its principal office as set out above.
Subject to adjustment thereof in the events and in the manner set forth in the Warrant Indenture hereinafter referred to, the exercise price payable for each Common Share upon the exercise of Warrants shall be $1.60 per Common Share (the “Exercise Price”).
Certificates for the Common Shares subscribed for will be mailed to the persons specified in the Exercise Form at their respective addresses specified therein or, if so specified in the Exercise Form, delivered to such persons at the office where this Warrant Certificate is surrendered. If fewer Common Shares are purchased than the number that can be purchased pursuant to this Warrant Certificate, the holder hereof will be entitled to receive without charge a new Warrant Certificate in respect of the balance of the Common Shares not so purchased. No fractional Common Shares will be issued upon exercise of any Warrant. Any fractional Common Shares shall be rounded down to the nearest whole number and the holder of such Warrants shall not be entitled to any compensation in respect of any fractional Common Share which is not issued.
This Warrant Certificate evidences Warrants of the Corporation issued or issuable under the provisions of a warrant indenture (which indenture together with all other instruments supplemental or ancillary thereto is herein referred to as the “Warrant Indenture”) dated as of June 29, 2020 between the Corporation and Computershare Trust Company of Canada, as Warrant Agent, to which Warrant Indenture reference is hereby made for particulars of the rights of the holders of Warrants, the Corporation and the Warrant Agent in respect thereof and the terms and conditions on which the Warrants are issued and held, all to the same effect as if the provisions of the Warrant Indenture were herein set forth, to all of which the holder, by acceptance hereof, assents. The Corporation will furnish to the holder, on request and without charge, a copy of the Warrant Indenture.
On presentation at the principal office of the Warrant Agent as set out above, subject to the provisions of the Warrant Indenture and on compliance with the reasonable requirements of the Warrant Agent, one or more Warrant Certificates may be exchanged for one or more Warrant Certificates entitling the holder thereof to purchase in the aggregate an equal number of Common Shares as are purchasable under the Warrant Certificate(s) so exchanged.
A-4
Neither the Warrants nor the Common Shares issuable upon exercise hereof have been or will be registered under the United States Securities Act of 1933, as amended (the “U.S. Securities Act”), or U.S. state securities laws. These Warrants may not be exercised in the United States or by or on behalf of, or for the account or benefit of, a U.S. Person or a person in the United States unless this security and the Common Shares issuable upon exercise of this security have been registered under the U.S. Securities Act and the applicable state securities legislation or an exemption from such registration requirements is available.
The Warrant Indenture contains provisions for the adjustment of the Exercise Price payable for each Common Share upon the exercise of Warrants and the number of Common Shares issuable upon the exercise of Warrants in the events and in the manner set forth therein.
The Warrant Indenture also contains provisions making binding on all holders of Warrants outstanding thereunder resolutions passed at meetings of holders of Warrants held in accordance with the provisions of the Warrant Indenture and instruments in writing signed by Warrantholders of Warrants entitled to purchase a specific majority of the Common Shares that can be purchased pursuant to such Warrants.
Nothing contained in this Warrant Certificate, the Warrant Indenture or elsewhere shall be construed as conferring upon the holder hereof any right or interest whatsoever as a holder of Common Shares or any other right or interest except as herein and in the Warrant Indenture expressly provided. In the event of any discrepancy between anything contained in this Warrant Certificate and the terms and conditions of the Warrant Indenture, the terms and conditions of the Warrant Indenture shall govern.
Warrants may only be transferred in compliance with the conditions of the Warrant Indenture on the register to be kept by the Warrant Agent in Vancouver, BC, or such other registrar as the Corporation, with the approval of the Warrant Agent, may appoint at such other place or places, if any, as may be designated, upon surrender of this Warrant Certificate to the Warrant Agent or other registrar accompanied by a written instrument of transfer in form and execution satisfactory to the Warrant Agent or other registrar and upon compliance with the conditions prescribed in the Warrant Indenture and with such reasonable requirements as the Warrant Agent or other registrar may prescribe and upon the transfer being duly noted thereon by the Warrant Agent or other registrar. Time is of the essence hereof.
This Warrant Certificate will not be valid for any purpose until it has been countersigned by or on behalf of the Warrant Agent from time to time under the Warrant Indenture.
The parties hereto have declared that they have required that these presents and all other documents related hereto be in the English language. Les parties aux présentes déclarent qu’elles ont exigé que la présente convention, de même que tous les documents s’y rapportant, soient rédigés en anglais.
A-5
IN WITNESS WHEREOF the Corporation has caused this Warrant Certificate to be duly executed as of:
PROTECH HOME MEDICAL CORP. | |||
By: | |||
Authorized Signatory | |||
By: | |||
Countersigned and Registered by: | Authorized Signatory | ||
COMPUTERSHARE TRUST COMPANY OF CANADA | |||
By: | |||
Authorized Signatory |
A-6
FORM OF TRANSFER
ANY TRANSFER OF WARRANTS WILL REQUIRE COMPLIANCE WITH APPLICABLE SECURITIES LEGISLATION. TRANSFERORS AND TRANSFEREES ARE URGED TO CONTACT LEGAL COUNSEL BEFORE EFFECTING ANY SUCH TRANSFER.
To: Computershare Trust Company of Canada
FOR VALUE RECEIVED the undersigned hereby sells, assigns and transfers to _____________________________________________________________________________________________________________(print name and address) the Warrants represented by this Warrants Certificate and hereby irrevocably constitutes and appoints ____________________ as its attorney with full power of substitution to transfer the said securities on the appropriate register of the Warrant Agent.
THE UNDERSIGNED TRANSFEROR HEREBY CERTIFIES AND DECLARES that the Warrants are not being offered, sold or transferred unless the Common Shares underlying the Warrants are registered under the United States Securities Act of 1933, as amended, and any applicable state securities laws or are exempt from such registration requirements.
In the case of a warrant certificate that contains a U.S. restrictive legend, the undersigned hereby represents, warrants and certifies that (one (only) of the following must be checked):
¨ | (A) the transfer is being made only to the Corporation; |
¨ | (B) the transfer is being made outside the United States in accordance with Rule 904 of Regulation S under the U.S. Securities Act, and in compliance with any applicable local securities laws and regulations and the holder has provided herewith the Declaration for Removal of Legend attached as Schedule “C” to the Warrant Indenture, or |
¨ | (C) the transfer is being made in accordance with a transaction that does not require registration under the U.S. Securities Act or any applicable state securities laws and the undersigned has furnished to the Corporation and the Warrant Agent an opinion of counsel of recognized standing in form and substance reasonably satisfactory to the Corporation and the Warrant Agent to such effect. |
In the case of a warrant certificate that does not contain a U.S. restrictive legend, if the proposed transfer is to, or for the account or benefit of, a U.S. Person or a person in the United States, the undersigned hereby represents, warrants and certifies that the transfer of the Warrants is being completed pursuant to an exemption from the registration requirements of the U.S. Securities Act and any applicable state securities laws, in which case the undersigned has furnished to the Corporation and the Warrant Agent an opinion of counsel of recognized standing in form and substance reasonably satisfactory to the Corporation and Warrant Agent to such effect.
A-7
¨ | If transfer is to a U.S. Person, check this box. |
DATED this ____ day of_________________, 20____.
SPACE FOR GUARANTEES OF SIGNATURES (BELOW) | ) | |
) | ||
) | Signature of Transferor | |
) | ||
) | ||
Guarantor’s Signature/Stamp | ) | Name of Transferor |
) |
REASON FOR TRANSFER – For US Residents only (where the individual(s) or corporation receiving the securities is a US resident). Please select only one (see instructions below).
¨ Gift | ¨ Estate | ¨ Private Sale | ¨ Other (or no change in ownership) |
Date of Event (Date of gift, death or sale): | Value per Warrant on the date of event: | |||
|
|
¨ CAD OR | ¨ USD |
CERTAIN REQUIREMENTS RELATING TO TRANSFERS – READ CAREFULLY
The signature(s) of the transferor(s) must correspond with the name(s) as written upon the face of this certificate(s), in every particular, without alteration or enlargement, or any change whatsoever. All securityholders or a legally authorized representative must sign this form. The signature(s) on this form must be guaranteed in accordance with the transfer agent’s then current guidelines and requirements at the time of transfer. Notarized or witnessed signatures are not acceptable as guaranteed signatures. As at the time of closing, you may choose one of the following methods (although subject to change in accordance with industry practice and standards):
· | Canada and the USA: A Medallion Signature Guarantee obtained from a member of an acceptable Medallion Signature Guarantee Program (STAMP, SEMP, NYSE, MSP). Many commercial banks, savings banks, credit unions, and all broker dealers participate in a Medallion Signature Guarantee Program. The Guarantor must affix a stamp bearing the actual words “Medallion Guaranteed”, with the correct prefix covering the face value of the certificate. |
A-8
· | Canada: A Signature Guarantee obtained from an authorized officer of the Royal Bank of Canada, Scotia Bank or TD Canada Trust. The Guarantor must affix a stamp bearing the actual words “Signature Guaranteed”, sign and print their full name and alpha numeric signing number. Signature Guarantees are not accepted from Treasury Branches, Credit Unions or Caisse Populaires unless they are members of a Medallion Signature Guarantee Program. For corporate holders, corporate signing resolutions, including certificate of incumbency, are also required to accompany the transfer, unless there is a “Signature & Authority to Sign Guarantee” Stamp affixed to the transfer (as opposed to a “Signature Guaranteed” Stamp) obtained from an authorized officer of the Royal Bank of Canada, Scotia Bank or TD Canada Trust or a Medallion Signature Guarantee with the correct prefix covering the face value of the certificate. |
· | Outside North America: For holders located outside North America, present the certificates(s) and/or document(s) that require a guarantee to a local financial institution that has a corresponding Canadian or American affiliate which is a member of an acceptable Medallion Signature Guarantee Program. The corresponding affiliate will arrange for the signature to be over-guaranteed. |
OR
The signature(s) of the transferor(s) must correspond with the name(s) as written upon the face of this certificate(s), in every particular, without alteration or enlargement, or any change whatsoever. The signature(s) on this form must be guaranteed by an authorized officer of Royal Bank of Canada, Scotia Bank or TD Canada Trust whose sample signature(s) are on file with the transfer agent, or by a member of an acceptable Medallion Signature Guarantee Program (STAMP, SEMP, NYSE, MSP). Notarized or witnessed signatures are not acceptable as guaranteed signatures. The Guarantor must affix a stamp bearing the actual words: “SIGNATURE GUARANTEED”, “MEDALLION GUARANTEED” OR “SIGNATURE & AUTHORITY TO SIGN GUARANTEE”, all in accordance with the transfer agent’s then current guidelines and requirements at the time of transfer. For corporate holders, corporate signing resolutions, including certificate of incumbency, will also be required to accompany the transfer unless there is a “SIGNATURE & AUTHORITY TO SIGN GUARANTEE” Stamp affixed to the Form of Transfer obtained from an authorized officer of the Royal Bank of Canada, Scotia Bank or TD Canada Trust or a “MEDALLION GUARANTEED” Stamp affixed to the Form of Transfer, with the correct prefix covering the face value of the certificate.
A-9
REASON FOR TRANSFER – FOR US RESIDENTS ONLY
Consistent with US IRS regulations, Computershare is required to request cost basis information from US securityholders. Please indicate the reason for requesting the transfer as well as the date of event relating to the reason. The event date is not the day in which the transfer is finalized, but rather the date of the event which led to the transfer request (i.e. date of gift, date of death of the securityholder, or the date the private sale took place).
B-1
SCHEDULE “B”
EXERCISE FORM
ANY TRANSFER OF WARRANTS WILL REQUIRE COMPLIANCE WITH APPLICABLE SECURITIES LEGISLATION. TRANSFERORS AND TRANSFEREES ARE URGED TO CONTACT LEGAL COUNSEL BEFORE EFFECTING ANY SUCH TRANSFER.
TO: | Protech Home Medical Corp. | |
AND TO: | Computershare Trust Company of Canada | |
3rd Floor, 510 Burrard Street | ||
Vancouver, BC V6C 3B9 |
The undersigned holder of the Warrants evidenced by this Warrant Certificate hereby exercises the right to acquire ____________ (A) Common Shares of Protech Home Medical Corp.
Exercise Price Payable:
__________________________________________________
((A) multiplied
by $1.60, subject to adjustment)
The undersigned hereby exercises the right of such holder to be issued, and hereby subscribes for, Common Shares that are issuable pursuant to the exercise of such Warrants on the terms specified in such Warrant Certificate and in the Warrant Indenture.
The undersigned hereby acknowledges that the undersigned is aware that the Common Shares received on exercise may be subject to restrictions on resale under applicable securities legislation.
Any capitalized term in this Warrant Certificate that is not otherwise defined herein, shall have the meaning ascribed thereto in the Warrant Indenture.
The undersigned represents, warrants and certifies as follows (one (only) of the following must be checked):
¨ | (A) the undersigned holder at the time of exercise of the Warrants (i) is not in the United States, (ii) is not a U.S. Person , (iii) is not exercising the Warrants for the account or benefit of a U.S. Person or a person in the United States, (iv) did not execute or deliver this exercise form in the United States and (v) delivery of the underlying Common Shares will not be to an address in the United States; OR |
¨ | (B) the undersigned holder (a) is the original U.S. purchaser who purchased the Warrants pursuant to the Company’s Unit offering who delivered a U.S. Subscription Agreement in connection with its purchase of Units, (b) is exercising the Warrants for its own account or for the account of a disclosed principal that was named in the U.S. Subscription Agreement pursuant to which it purchased such Units, and (c) is, and such disclosed principal, if any, is an institutional “accredited investor” as defined in Rule 501(a)(1),(2),(3)or (7) of Regulation D under the U.S. Securities Act of 1933, as amended (the “U.S. Securities Act”) at the time of exercise of these Warrants and the representations and warranties of the holder made in the original U.S. Subscription Agreement remain true and correct as of the date of exercise of these Warrants; OR |
B-2
¨ | (C) the undersigned holder is (i) in the United States, (ii) a U.S. Person, (iii) a person exercising for the account or benefit of a person in the United States or a U.S. Person, (iv) executing or delivering this exercise form in the United States or (v) requesting delivery of the underlying Common Shares in the United States, the undersigned holder has delivered to the Corporation and the Corporation’s transfer agent (a) a completed and executed U.S. Purchaser Letter in substantially the form attached to the Warrant Indenture as Schedule “D” or (b) an opinion of counsel (which will not be sufficient unless it is in form and substance reasonably satisfactory to the Corporation and Warrant Agent) or such other evidence reasonably satisfactory to the Corporation and Warrant Agent to the effect that with respect to the Common Shares to be delivered upon exercise of the Warrants, the issuance of such securities has been registered under the U.S. Securities Act and applicable state securities laws, or an exemption from such registration requirements is available. |
It is understood that the Corporation and Computershare Trust Company of Canada may require evidence to verify the foregoing representations.
Notes: | (1) Certificates will not be registered or delivered to an address in the United States unless Box B or C above is checked. |
(2) If Box C above is checked, holders are encouraged to consult with the Corporation in advance to determine that the legal opinion tendered in connection with the exercise will be satisfactory in form and substance to the Corporation and Warrant Agent. |
“United States” and “U.S. Person” are as defined in Rule 902 of Regulation S under the U.S. Securities Act.
The undersigned hereby irrevocably directs that the said Common Shares be issued, registered and delivered as follows:
B-3
Name(s) in Full and Social Insurance Number(s) (if applicable) |
Address(es) | Number of Common Shares | ||
Please print full name in which certificates representing the Common Shares are to be issued. If any Common Shares are to be issued to a person or persons other than the registered holder, the registered holder must pay to the Warrant Agent all eligible transfer taxes or other government charges, if any, and the Form of Transfer must be duly executed.
Once completed and executed, this Exercise Form must be mailed or delivered to Computershare Trust Company of Canada, c/o General Manager, Corporate Trust.
DATED this ____day of _____, 20__.
) | ||
) | ||
) | ||
Witness | ) | (Signature of Warrantholder, to be the same as |
) | appears on the face of this Warrant Certificate) | |
) | ||
) | Name of Registered Warrantholder |
¨ Please check if the certificates representing the Common Shares are to be delivered at the office where this Warrant Certificate is surrendered, failing which such certificates will be mailed to the address set out above . Certificates will be delivered or mailed as soon as practicable after the surrender of this Warrant Certificate to the Warrant Agent.
C-1
SCHEDULE “C”
FORM OF DECLARATION FOR REMOVAL OF LEGEND
TO: | Computershare Trust Company of Canada | |
Computershare Investor Services Inc. | ||
as registrar and transfer agent for the Warrants and Common Shares issuable upon exercise of the Warrants of Protech Home Medical Corp.
The undersigned (a) acknowledges that the sale of the securities of Protech Home Medical Corp. (the “Corporation”) to which this declaration relates is being made in reliance on Rule 904 of Regulation S under the United States Securities Act of 1933, as amended (the “U.S. Securities Act”) and (b) certifies that (1) the undersigned is not an “affiliate” (as that term is defined in the U.S. Securities Act) of the Corporation, (2) the offer of such securities was not made to a person in the United States and either (A) at the time the buy order was originated, the buyer was outside the United States, or the seller and any person acting on its behalf reasonably believed that the buyer was outside the United States, or (B) the transaction was executed in, on or through the facilities of the TSX Venture Exchange or any other designated offshore securities market as defined in Regulation S under the U.S. Securities Act and neither the seller nor any person acting on its behalf knows that the transaction has been prearranged with a buyer in the United States, (3) neither the seller nor any affiliate of the seller nor any person acting on any of their behalf has engaged or will engage in any directed selling efforts in the United States in connection with the offer and sale of such securities, (4) the sale is bona fide and not for the purpose of “washing off” the resale restrictions imposed because the securities are “restricted securities” (as such term is defined in Rule 144(a)(3) under the U.S. Securities Act), (5) the seller does not intend to replace the securities sold in reliance on Rule 904 of the U.S. Securities Act with fungible unrestricted securities and (6) the contemplated sale is not a transaction, or part of a series of transactions which, although in technical compliance with Regulation S, is part of a plan or scheme to evade the registration provisions of the U.S. Securities Act. Terms used herein have the meanings given to them by Regulation S.
DATED this ____day of _____, 20__.
(Name of Seller) | ||||
By: | ||||
Name: | ||||
Title: |
D-1
SCHEDULE “D”
FORM OF U.S. PURCHASER CERTIFICATION UPON EXERCISE OF WARRANTS
Protech Home Medical Corp.
1019 Town Drive
Wilder, Kentucky 41076
Attention: Chief Executive Officer
- and to -
Computershare Trust Company of Canada.
as Warrant Agent
Dear Sirs:
We are delivering this letter in connection with the purchase of common shares (the “Common Shares”) of Protech Home Medical Corp., a corporation existing under the laws of the Province of British Columbia (the “Corporation”) upon the exercise of warrants of the Corporation (“Warrants”), issued under the warrant indenture dated as of June 29, 2020 between the Corporation and Computershare Trust Company of Canada.
We hereby confirm that:
(a) | we are an institutional “accredited investor” (satisfying one or more of the criteria set forth in Rule 501 (a)(1),(2),(3) or (7) of Regulation D under the United States Securities Act of 1933 (the “U.S. Securities Act”)); |
(b) | we are purchasing the Common Shares for our own account; |
(c) | we have such knowledge and experience in financial and business matters that we are capable of evaluating the merits and risks of purchasing the Common Shares; |
(d) | we are not acquiring the Common Shares with a view to distribution thereof or with any present intention of offering or selling any of the Common Shares, except (A) to the Corporation, (B) outside the United States in accordance with Rule 904 under the U.S. Securities Act or (C) in accordance with Rule 144 under the U.S. Securities Act, if applicable, and in compliance with applicable state securities laws; |
(e) | we acknowledge that we have had access to such financial and other information as we deem necessary in connection with our decision to exercise the Warrants and purchase the Common Shares; and |
(f) | we acknowledge that we are not purchasing the Common Shares as a result of any general solicitation or general advertising, including advertisements, articles, notices or other communications published in any newspaper, magazine or similar media or the Internet or broadcast over radio, television or the Internet, or any seminar or meeting whose attendees have been invited by general solicitation or general advertising. |
D-2
We understand that the Common Shares are being offered in a transaction not involving any public offering within the United States within the meaning of the U.S. Securities Act and that the Common Shares have not been and will not be registered under the U.S. Securities Act. We further understand that any Common Shares acquired by us will be in the form of definitive physical certificates and that such certificates will bear a legend reflecting the fact that we will not offer, sell or otherwise transfer any of the Common Shares, directly or indirectly, unless (i) the sale is to the Corporation; (ii) the sale is made outside the United States in compliance with the requirements of Rule 904 of Regulation S under the U.S. Securities Act; or (iii) the sale is made (A) pursuant to an exemption from registration under the U.S. Securities Act provided by Rule 144 thereunder, if available, and in compliance with any applicable state securities laws or (B) pursuant to a transaction that does not require registration under the U.S. Securities Act or applicable state securities laws, and in the case of each of (A) and (B), the seller has furnished to the Corporation an opinion to such effect from counsel of recognized standing reasonably satisfactory to the Corporation prior to such offer, sale or transfer.
We acknowledge that you will rely upon our confirmations, acknowledgements and agreements set forth herein, and we agree to notify you promptly in writing if any of our representations or warranties herein ceases to be accurate or complete.
DATED this ____day of _____, 20__.
(Name of U.S. Purchaser) | ||||
By: | ||||
Name: | ||||
Title: |
Exhibit 99.48
PROTECH HOME MEDICAL PROVIDES CORPORATE UPDATE AS COMPANY POSITIONED TO ACCELERATE GROWTH
ROBUST BALANCE SHEET TO ALLOW FOR AGGRESSIVE M&A STRATEGY
Cincinnati, Ohio – July 7, 2020 – Protech Home Medical Corp. (the “Company” or “Protech”) (TSXV: PTQ) (OTCQX: PTQQF), a U.S. based leader in the home medical equipment industry, focused on end-to-end respiratory care, is pleased to provide a corporate update, including details on the Company’s continued response to COVID-19, commentary on the closing of the recent bought-deal offering and private placement, and an M&A pipeline update.
COVID-19
· | As the COVID-19 pandemic continues to evolve we are pleased to report that our operations continue to perform soundly, with demand remaining elevated and supply chain stability continuing through the third quarter. In particular: |
o | Increased demand for respiratory equipment, such as ventilators, and oxygen concentrators. |
o | CPAP resupply and other supplies business remains very strong. |
o | Sleep business gained strength in the 2nd half of the third quarter. |
· | As certain U.S. States see spikes in COVID-19 cases, including some in markets the Company operates, we have taken the necessary steps to plan, prepare and respond to a 2nd wave of COVID-19 cases. |
· | The Company’s supply chain for critical equipment remains solid and we are comfortable with our current levels of inventory, however as we feel appropriate, we will opportunistically build inventory to meet the increases in demand, particularly for ventilators and home oxygen equipment. |
· | We continue to ensure our patient-facing employees health and wellness when visiting patients and continue to provide them with the appropriate personal protective equipment. |
· | With a robust balance sheet, strength in our underlying business, acceleration of our M&A strategy and broad industry tailwinds, we are as confident as ever in our ability to execute. |
“Operating strength continued into the third quarter, as our supply chain remained resilient, and momentum continued to build across the business, as an acceleration to treating patients in the home provides us with ample opportunity in the markets in which we currently serve” commented Greg Crawford, CEO, and Chairman of Protech. “We are proud to be on the front-lines helping relieve the strain on the traditional healthcare system and stand ready to assist in the event of a 2nd wave of COVID-19.”
Bought-Deal Offering & Private Placement
As press released on June 29, 2020, the Company announced the closing of a $31.8 million short form prospectus offering, including full exercise of the over-allotment option, and concurrent private placements.
“This extremely successful offering provides an opportunity for Protech to accelerate its growth trajectory, with the company having the strongest balance sheet in its history” commented Greg Crawford, CEO and Chairman of Protech. “By participating in the private placement, Mr, Greenberg and I were thrilled to have participated alongside existing and new shareholders in the offering and believe this a testament to how we feel about Protech’s prospects moving forward. We are also delighted by the level of institutional support that participated in the financing as a whole and believe this will serve our shareholder base well. With over $41 million in cash, we have extraordinary financial flexibility when it comes to growing our business and will be aggressively exploring opportunities. We are well positioned to execute on our three-pronged growth strategy and look forward to updating investors as we continue to make additional progress.”
M&A Pipeline
Protech is focused on executing its corporate strategy that incorporates the implementation of technology, organic growth and strategic acquisitions. Following the closing of the recent financing, the Company has more than $41 million in cash to continue to pursue additional accretive acquisitions that are designed to build scale, within markets currently served, and new markets. The focus remains on strategic locations driven by product mix, distribution volumes and the ability to consolidate distribution channels to drive operating efficiencies and maximize earnings accretion.
We are focused on companies with stable revenue generation and consistent EBITDA margins, which we will focus on increasing sales by expanding product offerings, decrease COGS through purchasing volume, and drive efficiencies across the operations.
Additionally, given our robust balance sheet, we will not shy away from larger accretive transactions as compared to the size of our recent acquisitions, that are designed to significantly add to our presence in a market we serve or potentially even open a new market entirely.
“On the heels of our financing, and as we examine the marketplace in the midst of COVID-19, we continue to build our pipeline of qualified acquisition targets aggressively,” said Hardik Mehta, CFO of Protech. “We will remain extremely disciplined as it comes to our approach and will focus on building long-term shareholder value.”
ABOUT PROTECH HOME MEDICAL
The Company provides in-home monitoring and disease management services including end-to-end respiratory solutions for patients in the United States healthcare market. It seeks to continue to expand its offerings to include the management of several chronic disease states focusing on patients with heart or pulmonary disease, sleep disorders, reduced mobility and other chronic health conditions. The primary business objective of the Company is to create shareholder value by offering a broader range of services to patients in need of in-home monitoring and chronic disease management. The Company’s organic growth strategy is to increase annual revenue per patient by offering multiple services to the same patient, consolidating the patient’s services and making life easier for the patient.
Forward-Looking Statements
Certain statements contained in this press release constitute "forward-looking information" as such term is defined in applicable Canadian securities legislation. The words "may", "would", "could", "should", "potential", "will", "seek", "intend", "plan", "anticipate", "believe", "estimate", "expect" and similar expressions as they relate to the Company, including: the Company’s acquisition plans and potentially completing acquisitions; are intended to identify forward-looking information. All statements other than statements of historical fact may be forward-looking information. Such statements reflect the Company's current views and intentions with respect to future events, and current information available to the Company, and are subject to certain risks, uncertainties and assumptions, including, without limitation: the Company successfully identifying, negotiating and completing one or more acquisitions, including conditions precedent for such acquisitions being satisfied. Many factors could cause the actual results, performance or achievements that may be expressed or implied by such forward-looking information to vary from those described herein should one or more of these risks or uncertainties materialize. Examples of such risk factors include, without limitation: credit; market (including equity, commodity, foreign exchange and interest rate); liquidity; operational (including technology and infrastructure); reputational; insurance; strategic; regulatory; legal; environmental; capital adequacy; the general business and economic conditions in the regions in which the Company operates; the ability of the Company to execute on key priorities, including the successful completion of acquisitions, business retention, and strategic plans and to attract, develop and retain key executives; difficulty integrating newly acquired businesses; the ability to implement business strategies and pursue business opportunities; low profit market segments; disruptions in or attacks (including cyber-attacks) on the Company's information technology, internet, network access or other voice or data communications systems or services; the evolution of various types of fraud or other criminal behavior to which the Company is exposed; the failure of third parties to comply with their obligations to the Company or its affiliates; the impact of new and changes to, or application of, current laws and regulations; decline of reimbursement rates; dependence on few payors; possible new drug discoveries; a novel business model; dependence on key suppliers; granting of permits and licenses in a highly regulated business; the overall difficult litigation environment, including in the U.S.; increased competition; changes in foreign currency rates; increased funding costs and market volatility due to market illiquidity and competition for funding; the availability of funds and resources to pursue operations; critical accounting estimates and changes to accounting standards, policies, and methods used by the Company; the occurrence of natural and unnatural catastrophic events and claims resulting from such events; and risks related to COVID-19 including various recommendations, orders and measures of governmental authorities to try to limit the pandemic, including travel restrictions, border closures, non-essential business closures, quarantines, self-isolations, shelters-in-place and social distancing, disruptions to markets, economic activity, financing, supply chains and sales channels, and a deterioration of general economic conditions including a possible national or global recession; as well as those risk factors discussed or referred to in the Company’s disclosure documents filed with the securities regulatory authorities in certain provinces of Canada and available at www.sedar.com. Should any factor affect the Company in an unexpected manner, or should assumptions underlying the forward-looking information prove incorrect, the actual results or events may differ materially from the results or events predicted. Any such forward-looking information is expressly qualified in its entirety by this cautionary statement. Moreover, the Company does not assume responsibility for the accuracy or completeness of such forward-looking information. The forward-looking information included in this press release is made as of the date of this press release and the Company undertakes no obligation to publicly update or revise any forward-looking information, other than as required by applicable law.
Unless otherwise specified, all dollar amounts in this press release are expressed in Canadian dollars.
Neither the TSX Venture Exchange nor its Regulation Services Provider (as that term is defined in the policies of the TSX Venture Exchange) accepts responsibility for the adequacy or accuracy of this release.
For further information please visit our website at www.protechhomemedical.com, or contact:
Cole Stevens
VP of Investor Relations
Protech Home Medical Corp.
859-300-6455
cole.stevens@myphm.com
Gregory Crawford
Chief Executive Officer
Protech Home Medical Corp.
859-300-6455
investorinfo@myphm.com
Exhibit 99.49
Form 51-102F3
Material Change Report
Item 1. | Name and Address of Company |
Protech Home Medical Corp. (the “Company”) 1019 Town Drive
Wilder, Kentucky 41076
Item 2. | Date of Material Change |
June 29, 2020
Item 3. | News Release |
A news release with respect to the material change referred to in this report was disseminated on June 29, 2020 through GlobeNewswire and filed on the system for electronic document analysis and retrieval (SEDAR).
Item 4. | Summary of Material Change |
The Company closed its previously announced bought deal prospectus offering of 25,001,000 units (“Units”) at a price of $1.15 per Unit (the “Issue Price”) for aggregate gross proceeds of $28,751,150 (the “Public Offering”), which includes the exercise in full of the 15% over-allotment option. The syndicate of underwriters for the Public Offering was co-led by Beacon Securities Limited (“Beacon”), as sole bookrunner, and Canaccord Genuity Corp. (“Canaccord”). The Units under the Public Offering were offered and sold by way of a short form prospectus filed in British Columbia, Alberta and Ontario.
The Company, concurrent with the Public Offering, closed: (i) its previously announced brokered private placement of 1,750,000 Units at the Issue Price for additional gross proceeds of $2,012,500, which was conducted by a syndicate of agents co-led by Beacon, as sole bookrunner, and Canaccord; and (ii) its previously announced non-brokered private placement of 927,825 Units at the Issue Price for additional gross proceeds of $1,067,000 (the “Non-Brokered Private Placement”), with Gregory Crawford, Chairman and CEO of the Company, and Mark Greenberg, a director of the Company.
Each Unit is comprised of one common share of the Company (a “Common Share”) and one-half of one common share purchase warrant (each whole common share purchase warrant, a “Warrant”). Each Warrant is exercisable to acquire one Common Share at an exercise price of $1.60 per share, subject to adjustment in certain events, until June 29, 2021.
By virtue of the participation of Gregory Crawford and Mark Greenberg, each an insider of the Company, the Non-Brokered Private Placement constitutes a "related party transaction", as defined under Multilateral Instrument 61-101 (“MI 61-101”). The Non-Brokered Private Placement is exempt from the formal valuation and minority shareholder approval requirements of MI 61-101 as neither the fair market value of any securities issued to nor the consideration paid by such insiders would exceed 25% of the Company’s market capitalization.
Item 5. | Full Description of Material Change |
5.1 | Full Description of Material Change |
The material change is fully described in the news release attached hereto.
5.2 | Disclosure for Restructuring Transactions |
Not applicable.
Item 6. | Reliance on Subsection 7.1(2) or (3) of National Instrument 51-102 |
Not applicable.
Item 7. | Omitted Information |
Not applicable.
Item 8. | Executive Officer |
For additional information, please contact Hardik Mehta, Chief Financial Officer of the Company, at (859) 202-3085.
Item 9. | Date of Report |
July 8, 2020.
PROTECH HOME MEDICAL ANNOUNCES CLOSING OF $31.8 MILLION SHORT FORM PROSPECTUS OFFERING (INCLUDING FULL EXERCISE OF THE OVER-ALLOTMENT OPTION) AND CONCURRENT PRIVATE PLACEMENTS
NOT FOR DISTRIBUTION TO UNITED STATES NEWS WIRE SERVICES OR FOR DISSEMINATION IN THE UNITED STATES
Cincinnati, Ohio – June 29, 2020 – Protech Home Medical Corp. (the “Company”) (TSXV: PTQ) (OTCQX: PTQQF), a U.S.-based leader in the home medical equipment industry, focused on end-to-end respiratory care,is pleased to announce that it has closed its previously announced bought deal prospectus offering of 25,001,000 units (“Units”) at a price of $1.15 per Unit (the “Issue Price”) for aggregate gross proceeds of $28,751,150 (the “Public Offering”), which includes the exercise in full of the 15% over-allotment option. The syndicate of underwriters (the “Underwriters”) for the Public Offering was co-led by Beacon Securities Limited (“Beacon”), as sole bookrunner, and Canaccord Genuity Corp. (“Canaccord”). The Units under the Public Offering were offered and sold by way of a short form prospectus filed in British Columbia, Alberta and Ontario.
The Company is also pleased to announce that, concurrent with the Public Offering, it has closed: (i) its previously announced brokered private placement of 1,750,000 Units at the Issue Price for additional gross proceeds of $2,012,500 (the “Brokered Private Placement”), which was conducted by a syndicate of agents (the “Agents”) co-led by Beacon, as sole bookrunner, and Canaccord; and (ii) its previously announced non-brokered private placement of 927,825 Units at the Issue Price for additional gross proceeds of $1,067,000 (the “Non-Brokered Private Placement”, and together with the Brokered Private Placement, the “Private Placements” and, together with the Public Offering, the “Offerings”), with Gregory Crawford, Chairman and CEO of the Company, and Mark Greenberg, a director of the Company. The securities issued under the Private Placements are subject to resale restrictions, including, a Canadian and, in the case of the Non-Brokered Private Placement, an Exchange four-month hold period.
Each Unit is comprised of one common share of the Company (a “Common Share”) and one-half of one common share purchase warrant (each whole common share purchase warrant, a “Warrant”). Each Warrant is exercisable to acquire one Common Share at an exercise price of $1.60 per share, subject to adjustment in certain events, until June 29, 2021.
The Company intends to use the net proceeds of the Offering to increase the Company’s cash position and may be used to complete strategic acquisitions.
“We are thrilled to announce the closing of this oversubscribed financing, as it represents an important milestone in Protech’s evolution” commented Greg Crawford, CEO, and Chairman. “We want to thank our existing shareholders for their extraordinary support, and welcome new shareholders. We are excited to further execute on our growth strategy and this injection of capital will allow for an aggressive acceleration of our plan. We look forward to updating shareholders on our continued progress in the weeks to come.”
In consideration for the services provided by the Underwriters in connection with the Public Offering, the Company paid the Underwriters a commission equal to 5.5% of the gross proceeds raised under the Public Offering and issued to the Underwriters an aggregate of 1,375,055 non-transferable compensation options (the “Compensation Options”), which represents 5.5% of the total number of Units sold under the Public Offering. Each Compensation Option is exercisable into one Common Share at a price per Common Share that is equal to the Issue Price, subject to adjustments in certain events, until June 29, 2022.
In consideration for the services provided by the Agents in connection with the Brokered Private Placement, the Company paid the Agents a commission equal to 5.5% of the gross proceeds raised under the Brokered Private Placement and issued to the Agents an aggregate of 96,250 non-transferable broker warrants (the “Broker Warrants”), which represents 5.5% of the total number of Units sold under the Brokered Private Placement. Each Broker Warrant is exercisable into one common share in the capital of the Company (a “Common Share”) at a price per Common Share that is equal to the Issue Price, subject to adjustments in certain events, until June 29, 2022.
The Offering is subject to final acceptance of the TSX Venture Exchange (“TSXV”). The TSXV has conditionally accepted the Offering.
By virtue of the participation of Gregory Crawford and Mark Greenberg, each an insider of the Company, the Non-Brokered Private Placement constitutes a "related party transaction", as defined under Multilateral Instrument 61-101 (“MI 61-101”). The Non-Brokered Private Placement is exempt from the formal valuation and minority shareholder approval requirements of MI 61-101 as neither the fair market value of any securities issued to nor the consideration paid by such insiders would exceed 25% of the Company’s market capitalization.
The securities referred to in this news release have not been, nor will they be, registered under the United States Securities Act of 1933, as amended, and may not be offered or sold within the United States or to, or for the account or benefit of, U.S. persons absent U.S. registration or an applicable exemption from the U.S. registration requirements. This press release does not constitute an offer for sale of securities, nor a solicitation for offers to buy any securities in the United States, nor in any other jurisdiction in which such offer, solicitation or sale would be unlawful. Any public offering of securities in the United States must be made by means of a prospectus containing detailed information about the company and management, as well as financial statements.
ABOUT PROTECH HOME MEDICAL CORP.
The Company provides in-home monitoring and disease management services including end-to-end respiratory solutions for patients in the United States healthcare market. It seeks to continue to expand its offerings to include the management of several chronic disease states focusing on patients with heart or pulmonary disease, sleep disorders, reduced mobility and other chronic health conditions. The primary business objective of the Company is to create shareholder value by offering a broader range of services to patients in need of in-home monitoring and chronic disease management. The Company’s organic growth strategy is to increase annual revenue per patient by offering multiple services to the same patient, consolidating the patient’s services and making life easier for the patient.
Forward-Looking Statements
Certain statements contained in this press release constitute "forward-looking information" as such term is defined in applicable Canadian securities legislation. The words "may", "would", "could", "should", "potential", "will", "seek", "intend", "plan", "anticipate", "believe", "estimate", "expect" and similar expressions as they relate to the Company, including: the anticipated use of the net proceeds from the Offerings and the final approval of the TSXV in connection with the Offerings; are intended to identify forward-looking information. All statements other than statements of historical fact may be forward- looking information. Such statements reflect the Company's current views and intentions with respect to future events, and current information available to the Company, and are subject to certain risks, uncertainties and assumptions. Many factors could cause the actual results, performance or achievements that may be expressed or implied by such forward-looking information to vary from those described herein should one or more of these risks or uncertainties materialize. Examples of such risk factors include, without limitation: credit; market (including equity, commodity, foreign exchange and interest rate); liquidity; operational (including technology and infrastructure); reputational; insurance; strategic; regulatory; legal; environmental; capital adequacy; the general business and economic conditions in the regions in which the Company operates; the ability of the Company to execute on key priorities, including the successful completion of acquisitions, business retention, and strategic plans and to attract, develop and retain key executives; difficulty integrating newly acquired businesses; the ability to implement business strategies and pursue business opportunities; low profit market segments; disruptions in or attacks (including cyber-attacks) on the Company's information technology, internet, network access or other voice or data communications systems or services; the evolution of various types of fraud or other criminal behavior to which the Company is exposed; the failure of third parties to comply with their obligations to the Company or its affiliates; the impact of new and changes to, or application of, current laws and regulations; decline of reimbursement rates; dependence on few payors; possible new drug discoveries; a novel business model; dependence on key suppliers; granting of permits and licenses in a highly regulated business; the overall difficult litigation environment, including in the U.S.; increased competition; changes in foreign currency rates; increased funding costs and market volatility due to market illiquidity and competition for funding; the availability of funds and resources to pursue operations; critical accounting estimates and changes to accounting standards, policies, and methods used by the Company; the occurrence of natural and unnatural catastrophic events and claims resulting from such events; and risks related to COVID-19 including various recommendations, orders and measures of governmental authorities to try to limit the pandemic, including travel restrictions, border closures, non- essential business closures, quarantines, self-isolations, shelters-in-place and social distancing, disruptions to markets, economic activity, financing, supply chains and sales channels, and a deterioration of general economic conditions including a possible national or global recession; as well as those risk factors discussed or referred to in the Company’s disclosure documents filed with the securities regulatory authorities in certain provinces of Canada and available at www.sedar.com. Should any factor affect the Company in an unexpected manner, or should assumptions underlying the forward-looking information prove incorrect, the actual results or events may differ materially from the results or events predicted. Any such forward-looking information is expressly qualified in its entirety by this cautionary statement. Moreover, the Company does not assume responsibility for the accuracy or completeness of such forward-looking information. The forward-looking information included in this press release is made as of the date of this press release and the Company undertakes no obligation to publicly update or revise any forward-looking information, other than as required by applicable law.
Neither the TSX Venture Exchange nor its Regulation Services Provider (as that term is defined in the policies of the TSX Venture Exchange) accepts responsibility for the adequacy or accuracy of this release.
For further information please contact:
Cole Stevens
VP of Investor Relations
Protech Home Medical Corp.
859-300-6455
cole.stevens@myphm.com
Gregory Crawford
Chief Executive Officer
Protech Home Medical Corp.
859-300-6455
investorinfo@myphm.com
Exhibit 99.50
PROTECH HOME MEDICAL TO VIRTUALLY ATTEND THE CANACCORD GENUITY 40TH ANNUAL GROWTH CONFERENCE ON AUGUST 11TH – 13TH
WEBCASTED PRESENTATION TO BE HELD THURSDAY, AUGUST 13
Cincinnati, Ohio – July 13, 2020 – Protech Home Medical Corp. (the “Company” or “Protech”) (TSXV: PTQ) (OTCQX: PTQQF), a U.S. based leader in the home medical equipment industry, focused on end-to-end respiratory care, today announced that members of its management team will be presenting at the upcoming Canaccord Genuity 40th Annual Growth Conference. The event is being held virtually and will take place between August 11 to 13, 2020. For more information, please visit https://www.canaccordgenuity.com/capital-markets/about-us/events/.
Webcasted Presentation
Event: | Canaccord Genuity 40th Annual Growth Conference | |
Date: | Thursday, August 13, 2020 | |
Time: | 8:30am EDT |
The live webcast of the presentation will be available by visiting the investors' section of the Company's website at www.protechhomemedical.com. The webcast will also be available for replay on the Company's website following the event.
“We are excited to attend this well-known and prestigious investor conference and have plans to be very active on the capital markets front including attending U.S. and Canadian based investor conferences throughout the remainder of 2020,” commented Greg Crawford, CEO and Chairman of Protech. “On the heels of our recent financing, which provided us with the strongest balance sheet in our history, and as we continue to operate at an extremely high level in the midst of the COVID-19 pandemic, we look forward to sharing the Protech story with a broader array of institutional and retail investors.”
ABOUT PROTECH HOME MEDICAL
The Company provides in-home monitoring and disease management services including end-to-end respiratory solutions for patients in the United States healthcare market. It seeks to continue to expand its offerings to include the management of several chronic disease states focusing on patients with heart or pulmonary disease, sleep disorders, reduced mobility and other chronic health conditions. The primary business objective of the Company is to create shareholder value by offering a broader range of services to patients in need of in-home monitoring and chronic disease management. The Company’s organic growth strategy is to increase annual revenue per patient by offering multiple services to the same patient, consolidating the patient’s services and making life easier for the patient.
Forward-Looking Statements
Certain statements contained in this press release constitute "forward-looking information" as such term is defined in applicable Canadian securities legislation. The words "may", "would", "could", "should", "potential", "will", "seek", "intend", "plan", "anticipate", "believe", "estimate", "expect" and similar expressions as they relate to the Company, including: the Company presenting at the event and posting material on its website; and the Company’s plans to be very active on the capital markets front including attending U.S. and Canadian based investor conferences; and are intended to identify forward-looking information. All statements other than statements of historical fact may be forward-looking information. Such statements reflect the Company's current views and intentions with respect to future events, and current information available to the Company, and are subject to certain risks, uncertainties and assumptions. Many factors could cause the actual results, performance or achievements that may be expressed or implied by such forward-looking information to vary from those described herein should one or more of these risks or uncertainties materialize. Examples of such risk factors include, without limitation: credit; market (including equity, commodity, foreign exchange and interest rate); liquidity; operational (including technology and infrastructure); reputational; insurance; strategic; regulatory; legal; environmental; capital adequacy; the general business and economic conditions in the regions in which the Company operates; the ability of the Company to execute on key priorities, including the successful completion of acquisitions, business retention, and strategic plans and to attract, develop and retain key executives; difficulty integrating newly acquired businesses; the ability to implement business strategies and pursue business opportunities; low profit market segments; disruptions in or attacks (including cyber-attacks) on the Company's information technology, internet, network access or other voice or data communications systems or services; the evolution of various types of fraud or other criminal behavior to which the Company is exposed; the failure of third parties to comply with their obligations to the Company or its affiliates; the impact of new and changes to, or application of, current laws and regulations; decline of reimbursement rates; dependence on few payors; possible new drug discoveries; a novel business model; dependence on key suppliers; granting of permits and licenses in a highly regulated business; the overall difficult litigation environment, including in the U.S.; increased competition; changes in foreign currency rates; increased funding costs and market volatility due to market illiquidity and competition for funding; the availability of funds and resources to pursue operations; critical accounting estimates and changes to accounting standards, policies, and methods used by the Company; the occurrence of natural and unnatural catastrophic events and claims resulting from such events; and risks related to COVID-19 including various recommendations, orders and measures of governmental authorities to try to limit the pandemic, including travel restrictions, border closures, non-essential business closures, quarantines, self-isolations, shelters-in-place and social distancing, disruptions to markets, economic activity, financing, supply chains and sales channels, and a deterioration of general economic conditions including a possible national or global recession; as well as those risk factors discussed or referred to in the Company’s disclosure documents filed with the securities regulatory authorities in certain provinces of Canada and available at www.sedar.com. Should any factor affect the Company in an unexpected manner, or should assumptions underlying the forward-looking information prove incorrect, the actual results or events may differ materially from the results or events predicted. Any such forward-looking information is expressly qualified in its entirety by this cautionary statement. Moreover, the Company does not assume responsibility for the accuracy or completeness of such forward-looking information. The forward-looking information included in this press release is made as of the date of this press release and the Company undertakes no obligation to publicly update or revise any forward-looking information, other than as required by applicable law.
Neither the TSX Venture Exchange nor its Regulation Services Provider (as that term is defined in the policies of the TSX Venture Exchange) accepts responsibility for the adequacy or accuracy of this release.
For further information please visit our website at www.protechhomemedical.com, or contact:
Cole Stevens | ||
VP of Corporate Development | ||
Protech Home Medical Corp. | ||
859-300-6455 | ||
cole.stevens@myphm.com | ||
Gregory Crawford | ||
Chief Executive Officer | ||
Protech Home Medical Corp. | ||
859-300-6455 | ||
investorinfo@myphm.com |
Exhibit 99.51
PROTECH HOME MEDICAL ANNOUNCES RECORD PRELIMINARY THIRD QUARTER 2020 RESULTS
STRONG MOMENTUM CONTINUES AS RUN-RATE REVENUE REACHES $100 MILLION
Cincinnati, Ohio – July 20, 2020 – Protech Home Medical Corp. (the “Company” or “Protech”) (TSXV:PTQ; OTCQX:PTQQF), a U.S. based leader in the home medical equipment industry, focused on end-to-end respiratory care, is pleased to announce record preliminary financial results for the third quarter of 2020, ending June 30, 2020.
Preliminary Financial Results - Quarter Ended June 30, 2020
· | Revenue in the range of $25.6 million to $25.9 million |
· | Adjusted EBITDA in the range of $5.3 million to $5.5 million |
· | Gross margins similar to those achieved in the three months ended March 31, 2020 |
“We are extremely pleased to reach our objective of $100 million in run-rate revenue. These preliminary third quarter results signify the strength and resiliency of our underlying business, which continues to be robust,” commented Greg Crawford, CEO and Chairman of Protech. “We continued to see strong momentum across our business in the third quarter, and to date, we are seeing overwhelming industry tailwinds which bodes well for Protech over the near and longer term. Leveraging our first-rate infrastructure and strongest financial position in the history of our company, we expect to be increasingly aggressive in growing our market share through inorganic and organic growth opportunities.
As always, our employees are the heart and soul of our organization and these preliminary financial results are a direct result of their hard work and dedication. Many of our employees are on the front lines in patient-facing roles and have continued to provide exceptional service with tremendous bravery. It is these individuals that have enabled Protech to assist in reducing the strain placed on the traditional healthcare system by helping to move non-COVID-19 related patients out of the hospital system and into the home. We believe the acceleration of in-home healthcare needs across the country will continue to provide Protech with continued opportunity, and we are ready to capitalize.
Given the ongoing COVID-19 pandemic, we felt it extremely important to continue to keep our shareholders apprised with our financial performance in real time. We look forward to sharing our full financial results and commentary in August.”
Chief Financial Officer, Hardik Mehta added, “Revenue continues to accelerate at a significantly higher rate than the industry, and our Adjusted EBITDA margins are tracking higher. We are extremely confident in our ability to continue with this trajectory, and our focus on this front remains driven by process improvement and cost rationalization. With our pristine balance sheet, we feel that we have the capabilities to further accelerate our growth and will be actively seeking appropriate opportunities in the coming months.”
Protech provides home delivery and efficient online set-up of equipment for, primarily, chronic conditions. The Company operates out of 42 locations in 10 states with over 17,000 referring physicians and approximately 85,000 current active patients.
ABOUT PROTECH HOME MEDICAL
The Company provides in-home monitoring and disease management services including end-to-end respiratory solutions for patients in the United States healthcare market. It seeks to continue to expand its offerings to include the management of several chronic disease states focusing on patients with heart or pulmonary disease, sleep disorders, reduced mobility and other chronic health conditions. The primary business objective of the Company is to create shareholder value by offering a broader range of services to patients in need of in-home monitoring and chronic disease management. The Company’s organic growth strategy is to increase annual revenue per patient by offering multiple services to the same patient, consolidating the patient’s services and making life easier for the patient.
Forward-Looking Statements
Certain statements contained in this press release constitute "forward-looking information" as such term is defined in applicable Canadian securities legislation. The words "may", "would", "could", "should", "potential", "will", "seek", "intend", "plan", "anticipate", "believe", "estimate", "expect" and similar expressions as they relate to the Company, including: expected results for the quarter; the Company expecting to be increasingly aggressive in growing its market share through inorganic and organic growth opportunities; and the Company actively seeking appropriate opportunities in the coming months; are intended to identify forward-looking information. All statements other than statements of historical fact may be forward-looking information. Such statements reflect the Company's current views and intentions with respect to future events, and current information available to the Company, and are subject to certain risks, uncertainties and assumptions. Many factors could cause the actual results, performance or achievements that may be expressed or implied by such forward-looking information to vary from those described herein should one or more of these risks or uncertainties materialize. Examples of such risk factors include, without limitation: credit; market (including equity, commodity, foreign exchange and interest rate); liquidity; operational (including technology and infrastructure); reputational; insurance; strategic; regulatory; legal; environmental; capital adequacy; the general business and economic conditions in the regions in which the Company operates; the ability of the Company to execute on key priorities, including the successful completion of acquisitions, business retention, and strategic plans and to attract, develop and retain key executives; difficulty integrating newly acquired businesses; the ability to implement business strategies and pursue business opportunities; low profit market segments; disruptions in or attacks (including cyber-attacks) on the Company's information technology, internet, network access or other voice or data communications systems or services; the evolution of various types of fraud or other criminal behavior to which the Company is exposed; the failure of third parties to comply with their obligations to the Company or its affiliates; the impact of new and changes to, or application of, current laws and regulations; decline of reimbursement rates; dependence on few payors; possible new drug discoveries; a novel business model; dependence on key suppliers; granting of permits and licenses in a highly regulated business; the overall difficult litigation environment, including in the U.S.; increased competition; changes in foreign currency rates; increased funding costs and market volatility due to market illiquidity and competition for funding; the availability of funds and resources to pursue operations; critical accounting estimates and changes to accounting standards, policies, and methods used by the Company; the occurrence of natural and unnatural catastrophic events and claims resulting from such events; and risks related to COVID-19 including various recommendations, orders and measures of governmental authorities to try to limit the pandemic, including travel restrictions, border closures, non-essential business closures, quarantines, self-isolations, shelters-in-place and social distancing, disruptions to markets, economic activity, financing, supply chains and sales channels, and a deterioration of general economic conditions including a possible national or global recession; as well as those risk factors discussed or referred to in the Company’s disclosure documents filed with the securities regulatory authorities in certain provinces of Canada and available at www.sedar.com. Should any factor affect the Company in an unexpected manner, or should assumptions underlying the forward-looking information prove incorrect, the actual results or events may differ materially from the results or events predicted. Any such forward-looking information is expressly qualified in its entirety by this cautionary statement. Moreover, the Company does not assume responsibility for the accuracy or completeness of such forward-looking information. The forward-looking information included in this press release is made as of the date of this press release and the Company undertakes no obligation to publicly update or revise any forward-looking information, other than as required by applicable law.
Non-GAAP Measures
This press release refers to “Adjusted EBITDA” which is a non-GAAP and non-IFRS financial measure that does not have a standardized meaning prescribed by GAAP or IFRS. The Company’s presentation of this financial measure may not be comparable to similarly titled measures used by other companies. This financial measure is intended to provide additional information to investors concerning the Company’s performance. Adjusted EBITDA is defined as EBITDA excluding stock-based compensation. Adjusted EBITDA is a non-IFRS measure the Company uses as an indicator of financial health and excludes several items which may be useful in the consideration of the financial condition of the Company, including interest expense, income taxes, depreciation, amortization, stock-based compensation, and change in fair value of debentures and financial derivatives. The following table shows our non-IFRS measure (Adjusted EBITDA) reconciled to our net income for the indicated period:
Three months ended
June 30, 2020 ($ in millions) |
||||
Net income (loss) | $ (3.9) – (3.7) | |||
Add back: | ||||
Depreciation and amortization | 5.2 – 5.2 | |||
Interest expense, net | 0.6 – 0.6 | |||
Change in fair value of debentures and derivative | 3.3 – 3.3 | |||
Provision for income taxes | 0.0 – 0.0 | |||
EBITDA | $ 5.2 – 5.4 | |||
Stock-based compensation | 0.1 – 0.1 | |||
Adjusted EBITDA | $ 5.3 – 5.5 |
Preliminary Financial Metrics
This press release contains certain pre-released third quarter financial metrics. The third quarter financial metrics contained in this press release are preliminary and represent the most current information available to the Company's management, as financial closing procedures for the three and nine months ended June 30, 2020 are not yet complete. The Company's actual consolidated financial statements for such period may result in material changes to the financial metrics summarized in this press release (including by any one financial metric, or all of the financial metrics, being below or above the figures indicated) as a result of the completion of normal quarter end accounting procedures and adjustments, and also what one might expect to be in the final consolidated financial statements based on the financial metrics summarized in this press release. Although the Company believes the expectations reflected in this press release are based upon reasonable assumptions, the Company can give no assurance that actual results will not differ materially from these expectations.
Unless otherwise specified, all dollar amounts in this press release are expressed in Canadian dollars.
Neither the TSX Venture Exchange nor its Regulation Services Provider (as that term is defined in the policies of the TSX Venture Exchange) accepts responsibility for the adequacy or accuracy of this release.
For further information please visit our website at www.protechhomemedical.com, or contact:
Cole Stevens
VP of Corporate Development
Protech Home Medical Corp.
859-300-6455
cole.stevens@myphm.com
Gregory Crawford
Chief Executive Officer
Protech Home Medical Corp.
859-300-6455
investorinfo@myphm.com
Exhibit 99.52
Protech Home Medical Announces DATE AND TIME
FOR Q3 2020 CONFERENCE CALL and audio webcast
Cincinnati, Ohio – July 30, 2020 – Protech Home Medical Corp. (the “Company”) (TSXV: PTQ) (OTCQX: PTQQF), a U.S. based leader in the home medical equipment industry, focused on end-to-end respiratory care, today announced that it will host its Q3 2020 earnings conference call and audio webcast on Tuesday, August 18, 2020 at 10:00 a.m. (EDT).
Conference Call Details:
Tuesday, August 18, 2020 at 10:00 a.m. (EDT).
Canada/US Toll Free: | 1 (800) 319 4610 |
International: | 1 (604) 638 5340 |
Audio Webcast Details:
The live audio webcast can be found on the investor section of the Company’s website through the following link:
https://protechhomemedical.com/conference_calls
ABOUT PROTECH HOME MEDICAL
The Company provides in-home monitoring and disease management services including end-to-end respiratory solutions for patients in the United States healthcare market. It seeks to continue to expand its offerings to include the management of several chronic disease states focusing on patients with heart or pulmonary disease, sleep disorders, reduced mobility and other chronic health conditions. The primary business objective of the Company is to create shareholder value by offering a broader range of services to patients in need of in-home monitoring and chronic disease management. The Company’s organic growth strategy is to increase annual revenue per patient by offering multiple services to the same patient, consolidating the patient’s services and making life easier for the patient.
Neither the TSX Venture Exchange nor its Regulation Services Provider (as that term is defined in the policies of the TSX Venture Exchange) accepts responsibility for the adequacy or accuracy of this release.
For further information please visit our website at www.protechhomemedical.com, or contact:
Cole Stevens
VP of Corporate Development
Protech Home Medical Corp.
859-300-6455
cole.stevens@myphm.com
Gregory Crawford
Chief Executive Officer
Protech Home Medical Corp.
859-300-6455
investorinfo@myphm.com
Exhibit 99.53
PROTECH HOME MEDICAL TO VIRTUALLY ATTEND
THE LD 500 CONFERENCE ON
SEPTEMBER 1ST – 4TH
WEBCASTED PRESENTATION TO BE HELD WEDNESDAY, SEPTEMBER 2ND
Cincinnati, Ohio – August 6, 2020 – Protech Home Medical Corp. (the “Company” or “Protech”) (TSXV: PTQ) (OTCQX: PTQQF), a U.S. based leader in the home medical equipment industry, focused on end-to-end respiratory care, today announced that members of its management team will be attending the upcoming LD 500 Conference. The event is being held virtually and will take place between September 1 to 4, 2020.
Webcasted Presentation
Event: The LD 500 Conference
Date: Wednesday, September 2, 2020
Time: 9:00am EDT
Registration: ldmicro.protechhomemedical.com
The live webcast of the presentation will be available by clicking the registration link or visiting the investors' section of the Company’s website at www.protechhomemedical.com. The webcast will also be available for replay on the Company's website following the event.
“We look forward to attending this highly anticipated U.S. based investor conference, which is scheduled to encompass upwards of 500 public companies. We continue to be extremely active on the capital markets front on both sides of the border, and expect to attend additional investor conferences throughout 2020,” commented Greg Crawford, CEO and Chairman of Protech. “We are expecting an extremely full slate of meetings over the duration of the conference and are excited to provide our vision for Protech to a wide array of new investors.”
"We have been waiting for this moment all year long. Due to COVID, it has been nearly impossible for physical conferences to even take place. I want to show the world that you can still learn, have a great time, and see some of the most unique companies in the capital markets today. All without having to step foot outside. For the first time, LD Micro is accessible to everyone, and we are honored to welcome you to one of the most trusted platforms in the space,” stated Chris Lahiji, Founder of LD.
ABOUT LD MICRO
LD Micro was founded in 2006 with the sole purpose of being an independent resource in the microcap space. What started out as a newsletter highlighting unique companies has transformed into several influential events annually (Invitational, Summit, and Main Event).
In 2015, LDM launched the first pure microcap index (the LDMi) to exclusively provide intraday information on the entire sector. LD will continue to provide valuable tools for the benefit of everyone in the small and micro-cap universe.
For those with any questions, please contact David Scher at david@ldmicro.com or visit www.ldmicro.com for more information.
ABOUT PROTECH HOME MEDICAL
The Company provides in-home monitoring and disease management services including end-to-end respiratory solutions for patients in the United States healthcare market. It seeks to continue to expand its offerings to include the management of several chronic disease states focusing on patients with heart or pulmonary disease, sleep disorders, reduced mobility and other chronic health conditions. The primary business objective of the Company is to create shareholder value by offering a broader range of services to patients in need of in-home monitoring and chronic disease management. The Company’s organic growth strategy is to increase annual revenue per patient by offering multiple services to the same patient, consolidating the patient’s services and making life easier for the patient.
Forward-Looking Statements
Certain statements contained in this press release constitute "forward-looking information" as such term is defined in applicable Canadian securities legislation. The words "may", "would", "could", "should", "potential", "will", "seek", "intend", "plan", "anticipate", "believe", "estimate", "expect" and similar expressions as they relate to the Company, including: the Company attending the event; the number of public companies scheduled to attend the event; the Company expecting an extremely full slate of meetings over the duration of the conference; the Company expecting to attend additional investor conferences throughout 2020; and the live webcast and replay of the presentation being available on the Company's; are intended to identify forward-looking information. All statements other than statements of historical fact may be forward-looking information. Such statements reflect the Company's current views and intentions with respect to future events, and current information available to the Company, and are subject to certain risks, uncertainties and assumptions. Many factors could cause the actual results, performance or achievements that may be expressed or implied by such forward-looking information to vary from those described herein should one or more of these risks or uncertainties materialize. Examples of such risk factors include, without limitation: credit; market (including equity, commodity, foreign exchange and interest rate); liquidity; operational (including technology and infrastructure); reputational; insurance; strategic; regulatory; legal; environmental; capital adequacy; the general business and economic conditions in the regions in which the Company operates; the ability of the Company to execute on key priorities, including the successful completion of acquisitions, business retention, and strategic plans and to attract, develop and retain key executives; difficulty integrating newly acquired businesses; the ability to implement business strategies and pursue business opportunities; low profit market segments; disruptions in or attacks (including cyber-attacks) on the Company's information technology, internet, network access or other voice or data communications systems or services; the evolution of various types of fraud or other criminal behavior to which the Company is exposed; the failure of third parties to comply with their obligations to the Company or its affiliates; the impact of new and changes to, or application of, current laws and regulations; decline of reimbursement rates; dependence on few payors; possible new drug discoveries; a novel business model; dependence on key suppliers; granting of permits and licenses in a highly regulated business; the overall difficult litigation environment, including in the U.S.; increased competition; changes in foreign currency rates; increased funding costs and market volatility due to market illiquidity and competition for funding; the availability of funds and resources to pursue operations; critical accounting estimates and changes to accounting standards, policies, and methods used by the Company; the occurrence of natural and unnatural catastrophic events and claims resulting from such events; and risks related to COVID-19 including various recommendations, orders and measures of governmental authorities to try to limit the pandemic, including travel restrictions, border closures, non-essential business closures, quarantines, self-isolations, shelters-in-place and social distancing, disruptions to markets, economic activity, financing, supply chains and sales channels, and a deterioration of general economic conditions including a possible national or global recession; as well as those risk factors discussed or referred to in the Company’s disclosure documents filed with the securities regulatory authorities in certain provinces of Canada and available at www.sedar.com. Should any factor affect the Company in an unexpected manner, or should assumptions underlying the forward-looking information prove incorrect, the actual results or events may differ materially from the results or events predicted. Any such forward-looking information is expressly qualified in its entirety by this cautionary statement. Moreover, the Company does not assume responsibility for the accuracy or completeness of such forward-looking information. The forward-looking information included in this press release is made as of the date of this press release and the Company undertakes no obligation to publicly update or revise any forward-looking information, other than as required by applicable law.
Neither the TSX Venture Exchange nor its Regulation Services Provider (as that term is defined in the policies of the TSX Venture Exchange) accepts responsibility for the adequacy or accuracy of this release.
For further information please visit our website at www.protechhomemedical.com, or contact:
Cole Stevens
VP of Corporate Development
Protech Home Medical Corp.
859-300-6455
cole.stevens@myphm.com
Gregory Crawford
Chief Executive Officer
Protech Home Medical Corp.
859-300-6455
investorinfo@myphm.com
Exhibit 99.54
PROTECH HOME MEDICAL ANNOUNCES DTC ELIGIBILITY FOR ITS COMMON SHARES
DTC ELIGIBILITY EXPECTED TO INCREASE ACCESSIBILITY FOR U.S. INVESTORS
Cincinnati, Ohio – August 10, 2020 – Protech Home Medical Corp. (the “Company” or “Protech”) (TSXV: PTQ) (OTCQX: PTQQF), a U.S. based leader in the home medical equipment industry, focused on end-to-end respiratory care, is pleased to announce that its common shares (including those traded on the OTCQX) are now eligible for electronic clearing and settlement through the Depository Trust Company (“DTC”) in the United States.
DTC is a subsidiary of the Depository Trust & Clearing Corporation, a U.S. company that manages the electronic clearing and settlement of publicly traded companies. Securities that are eligible to be electronically cleared and settled through DTC are considered to be “DTC eligible”. DTC eligibility is expected to create a seamless process of trading and enhance liquidity of the Company's common shares in the United States over time.
The ability to have Protech’s shares electronically cleared and settled in the United States is far more convenient and reduces the costs incurred in trading shares. With Protech’s shares now traded electronically, existing investors benefit from greater liquidity over time and execution speeds, while new investors are far less restricted from participating in Protech’s stock.
“We are thrilled to conclude the process of obtaining DTC eligibility, as it represents a significant step forward for our current and future shareholders as it comes to building liquidity and is crucial in building a strong presence for our company within the U.S. capital markets sphere,” commented Greg Crawford, CEO and Chairman of Protech. “Simplifying the process of transacting our stock for investors and brokerage firms is extremely important and demonstrates our commitment to broadening our shareholder base.”
ABOUT PROTECH HOME MEDICAL
The Company provides in-home monitoring and disease management services including end-to-end respiratory solutions for patients in the United States healthcare market. It seeks to continue to expand its offerings to include the management of several chronic disease states focusing on patients with heart or pulmonary disease, sleep disorders, reduced mobility and other chronic health conditions. The primary business objective of the Company is to create shareholder value by offering a broader range of services to patients in need of in-home monitoring and chronic disease management. The Company’s organic growth strategy is to increase annual revenue per patient by offering multiple services to the same patient, consolidating the patient’s services and making life easier for the patient.
Forward-Looking Statements
Certain statements contained in this press release constitute "forward-looking information" as such term is defined in applicable Canadian securities legislation. The words "may", "would", "could", "should", "potential", "will", "seek", "intend", "plan", "anticipate", "believe", "estimate", "expect" and similar expressions as they relate to the Company, including: the Company’s anticipated effects of DTC eligibility; are intended to identify forward-looking information. All statements other than statements of historical fact may be forward-looking information. Such statements reflect the Company's current views and intentions with respect to future events, and current information available to the Company, and are subject to certain risks, uncertainties and assumptions. Many factors could cause the actual results, performance or achievements that may be expressed or implied by such forward-looking information to vary from those described herein should one or more of these risks or uncertainties materialize. Examples of such risk factors include, without limitation: credit; market (including equity, commodity, foreign exchange and interest rate); liquidity; operational (including technology and infrastructure); reputational; insurance; strategic; regulatory; legal; environmental; capital adequacy; the general business and economic conditions in the regions in which the Company operates; the ability of the Company to execute on key priorities, including the successful completion of acquisitions, business retention, and strategic plans and to attract, develop and retain key executives; difficulty integrating newly acquired businesses; the ability to implement business strategies and pursue business opportunities; low profit market segments; disruptions in or attacks (including cyber-attacks) on the Company's information technology, internet, network access or other voice or data communications systems or services; the evolution of various types of fraud or other criminal behavior to which the Company is exposed; the failure of third parties to comply with their obligations to the Company or its affiliates; the impact of new and changes to, or application of, current laws and regulations; decline of reimbursement rates; dependence on few payors; possible new drug discoveries; a novel business model; dependence on key suppliers; granting of permits and licenses in a highly regulated business; the overall difficult litigation environment, including in the U.S.; increased competition; changes in foreign currency rates; increased funding costs and market volatility due to market illiquidity and competition for funding; the availability of funds and resources to pursue operations; critical accounting estimates and changes to accounting standards, policies, and methods used by the Company; the occurrence of natural and unnatural catastrophic events and claims resulting from such events; and risks related to COVID-19 including various recommendations, orders and measures of governmental authorities to try to limit the pandemic, including travel restrictions, border closures, non-essential business closures, quarantines, self-isolations, shelters-in-place and social distancing, disruptions to markets, economic activity, financing, supply chains and sales channels, and a deterioration of general economic conditions including a possible national or global recession; as well as those risk factors discussed or referred to in the Company’s disclosure documents filed with the securities regulatory authorities in certain provinces of Canada and available at www.sedar.com. Should any factor affect the Company in an unexpected manner, or should assumptions underlying the forward-looking information prove incorrect, the actual results or events may differ materially from the results or events predicted. Any such forward-looking information is expressly qualified in its entirety by this cautionary statement. Moreover, the Company does not assume responsibility for the accuracy or completeness of such forward-looking information. The forward-looking information included in this press release is made as of the date of this press release and the Company undertakes no obligation to publicly update or revise any forward-looking information, other than as required by applicable law.
Neither the TSX Venture Exchange nor its Regulation Services Provider (as that term is defined in the policies of the TSX Venture Exchange) accepts responsibility for the adequacy or accuracy of this release.
For further information please visit our website at www.protechhomemedical.com, or contact:
Cole Stevens
VP of Investor Relations
Protech Home Medical Corp.
859-300-6455
cole.stevens@myphm.com
Gregory Crawford
Chief Executive Officer
Protech Home Medical Corp.
859-300-6455
investorinfo@myphm.com
Exhibit 99.55
PROTECH ANNOUNCES EXECUTION OF AN LOI TO ACQUIRE A PROFITABLE RESPIRATORY CARE BUSINESS IN THE MIDWESTERN U.S.
TARGET HAS $5 MILLION IN ANNUALIZED REVENUES AND WOULD EXPAND PROTECH’S OPERATING FOOTPRINT IN MIDWEST AND INCREASE ACTIVE PATIENT COUNT BY MORE THAN 3,000
Cincinnati, Ohio – August 11, 2020 – Protech Home Medical Corp. (“Protech” or the “Company”) (TSXV: PTQ), (OTCQX: PTQQF), a U.S. based leader in the home medical equipment industry, focused on end-to-end respiratory care, today announced it has executed a non-binding letter of intent (the “LOI”) to acquire a private respiratory care company in the Midwestern United States reporting unaudited trailing 12-month annual revenues of approximately $5 million, positive adjusted EBITDA, and positive net income.
Acquisition Details
The target company is a leader in the respiratory home care services industry in the Midwestern United States. The target will enhance Protech’s presence in the Midwest, including adding a significantly large new market, and would increase Protech’s active patient count by over 3,000. The target focuses on all aspects of home respiratory equipment with a detailed focus on non-invasive ventilation therapy and sleep devices with a large ALS and COPD patient base. The target has a high acuity respiratory program and provides non-invasive ventilation in a 90-mile radius. This program makes up just over one third of the target’s overall revenue and is also the fastest growing segment of its business. The CMS has removed non-invasive ventilators from the 2021 competitive bidding program, allowing for a clearer margin outlook. Protech feels strongly about bolstering its non-invasive ventilator volume as a percentage of its product mix given the strong market fundamentals. The target is well-entrenched in the community, with a strong, clinical services background that focuses exclusively on high-tech services, and Protech looks forward to leveraging this platform. The target has great diversification amongst referral sources, with no more than one source contributing 10%, and a very strong and diversified payor base, with minimal Medicare exposure. Furthermore, the target has a long recurring revenue cycle which fits hand in hand with Protech’s business model.
According to the LOI, Protech expects to close the acquisition for cash at a reasonable multiple that would immediately be accretive to EBITDA and net income. Closing of the acquisition is subject to final due diligence, final negotiation and execution of a definitive purchase agreement and all necessary approvals. Closing is anticipated to be within the next 30 days.
The acquisition is expected to increase Protech’s annual revenues by approximately $5 million. Leveraging existing infrastructure, Protech expects to achieve additional revenue generated from organic growth, cross selling and corporate synergies.
“We are thrilled to have executed an LOI to add a substantial Midwest based respiratory care provider to the Protech family," said Greg Crawford, Chairman and CEO of Protech. “The acquisition would be immediately accretive to Protech’s EBITDA and overall profitability and would continue to build scale on the top-line which has now reached a run-rate of $100 million. We are excited about the target’s diverse payor mix with minimal Medicare exposure, strong recurring revenue base, and product mix. We will use our operational expertise, leveraging our first-rate infrastructure to achieve profit growth through our integration platform. We will continue to be active on the acquisition front as we focus on increasing market penetration in our existing markets and adding new markets into the system.”
Chief Financial Officer, Hardik Mehta added, “We look forward to a potential closing on this exciting respiratory care company that strategically assists us in further penetrating the Midwest regions in which it serves and upon a successful closing will work diligently to integrate the business onto the Protech platform. Our acquisition pipeline is robust, which includes larger revenue opportunities that can assist the company to gain scale at an accelerated pace. As always, we will continue to be extremely prudent and decisive in our approach and focus on the right deal at the right consideration.”
Additional information will be released by the Company as it occurs. There can be no assurance that any acquisitions (including the particular acquisition contemplated herein) will be completed or the timing of any acquisitions.
ABOUT PROTECH HOME MEDICAL CORP.
The Company provides in-home monitoring and disease management services including end-to-end respiratory solutions for patients in the United States healthcare market. It seeks to continue to expand its offerings to include the management of several chronic disease states focusing on patients with heart or pulmonary disease, sleep disorders, reduced mobility and other chronic health conditions. The primary business objective of the Company is to create shareholder value by offering a broader range of services to patients in need of in-home monitoring and chronic disease management. The Company’s organic growth strategy is to increase annual revenue per patient by offering multiple services to the same patient, consolidating the patient’s services and making life easier for the patient.
Forward-Looking Statements
Certain statements contained in this press release constitute "forward-looking information" as such term is defined in applicable Canadian securities legislation. The words "may", "would", "could", "should", "potential", "will", "seek", "intend", "plan", "anticipate", "believe", "estimate", "expect" and similar expressions as they relate to the Company, including: the Company closing the acquisition and the anticipated financial impact of the acquisition on Protech’s financial results; closing of the acquisition within the next 30 days; the acquisition expected to increase Protech’s annual revenues by approximately $5 million; and the Company closing additional acquisitions; are intended to identify forward-looking information. All statements other than statements of historical fact may be forward-looking information. Such statements reflect the Company's current views and intentions with respect to future events, and current information available to the Company, and are subject to certain risks, uncertainties and assumptions, including: receipt of all necessary approvals for the acquisition; the Company successfully completing the negotiation of a definitive purchase agreement and all closing conditions being waived or satisfied in a timely manner; the definitive purchase agreement being executed; and the Company successfully identified, negotiating and completing additional acquisitions, including accretive acquisitions. Many factors could cause the actual results, performance or achievements that may be expressed or implied by such forward-looking information to vary from those described herein should one or more of these risks or uncertainties materialize. Examples of such risk factors include, without limitation: credit; market (including equity, commodity, foreign exchange and interest rate); liquidity; operational (including technology and infrastructure); reputational; insurance; strategic; regulatory; legal; environmental; capital adequacy; the general business and economic conditions in the regions in which the Company operates; the ability of the Company to execute on key priorities, including the successful completion of acquisitions, business retention, and strategic plans and to attract, develop and retain key executives; difficulty integrating newly acquired businesses; the ability to implement business strategies and pursue business opportunities; low profit market segments; disruptions in or attacks (including cyber-attacks) on the Company's information technology, internet, network access or other voice or data communications systems or services; the evolution of various types of fraud or other criminal behavior to which the Company is exposed; the failure of third parties to comply with their obligations to the Company or its affiliates; the impact of new and changes to, or application of, current laws and regulations; decline of reimbursement rates; dependence on few payors; possible new drug discoveries; a novel business model; dependence on key suppliers; granting of permits and licenses in a highly regulated business; the overall difficult litigation environment, including in the U.S.; increased competition; changes in foreign currency rates; increased funding costs and market volatility due to market illiquidity and competition for funding; the availability of funds and resources to pursue operations; critical accounting estimates and changes to accounting standards, policies, and methods used by the Company; the occurrence of natural and unnatural catastrophic events and claims resulting from such events; and risks related to COVID-19 including various recommendations, orders and measures of governmental authorities to try to limit the pandemic, including travel restrictions, border closures, non-essential business closures, quarantines, self-isolations, shelters-in-place and social distancing, disruptions to markets, economic activity, financing, supply chains and sales channels, and a deterioration of general economic conditions including a possible national or global recession; as well as those risk factors discussed or referred to in the Company’s disclosure documents filed with the securities regulatory authorities in certain provinces of Canada and available at www.sedar.com. Should any factor affect the Company in an unexpected manner, or should assumptions underlying the forward-looking information prove incorrect, the actual results or events may differ materially from the results or events predicted. Any such forward-looking information is expressly qualified in its entirety by this cautionary statement. Moreover, the Company does not assume responsibility for the accuracy or completeness of such forward-looking information. The forward-looking information included in this press release is made as of the date of this press release and the Company undertakes no obligation to publicly update or revise any forward-looking information, other than as required by applicable law.
Unless otherwise specified, all dollar amounts in this press release are expressed in Canadian dollars.
Neither the TSX Venture Exchange nor its Regulation Services Provider (as that term is defined in the policies of the TSX Venture Exchange) accepts responsibility for the adequacy or accuracy of this release.
For further information please visit our website at www.protechhomemedical.com, or contact:
Cole Stevens
VP of Corporate Development
Protech Home Medical Corp.
859-300-6455
cole.stevens@myphm.com
Gregory Crawford
Chief Executive Officer
Protech Home Medical Corp.
859-300-6455
investorinfo@myphm.com
Exhibit 99.56
Protech Home Medical Reports Record Third Quarter Fiscal 2020 Financial Results
Run-Rate Revenue Reaches $100 Million
Posts Revenue Growth of 28% and Adjusted EBITDA Growth of 47%
CINCINNATI, Ohio – August 17, 2020 – Protech Home Medical Corp. (“Protech” or the “Company”) (TSXV: PTQ) (OTCQX: PTQQF), a U.S. based leader in the home medical equipment industry, focused on end-to-end respiratory care, today announced its third quarter fiscal 2020 financial results and operational highlights for the period ended June 30, 2020.
Protech will host its Quarterly Earnings Conference Call on Tuesday, August 18, 2020 at 10:00 a.m. (EDT). The dial-in number is 1 (800) 319-4610 or 1 (604) 638-5340. The live audio webcast can be found on the investor section of the Company’s website through the following link: https://protechhomemedical.com/conference_calls
Financial Highlights:
§ | Revenue for Q3 2020 was $25.9 million compared to $20.2 million for Q3 2019, representing a 28% increase in revenue year-over-year and a 7% increase quarter over quarter; most of which was organic. |
§ | Run-rate revenue reaches previously stated goal of $100 million prior to year-end. |
§ | Adjusted EBITDA for Q3 2020 was $5.5 million (21.4% margin), compared to $3.8 million (18.7% margin) for Q3 2019, representing a 47% increase year-over-year. |
§ | Gross margin in Q3 2020 was 71%, up from 70% in Q3 2019, as a result of continued margin enhancement efforts, including patient intake and distribution optimization. |
§ | Gross profit for Q3 2020 was $18.4 million as compared to $14.1 million for Q3 2019. |
§ | Cash flow from operations was $19.4 million for the nine months ended June 30, 2020 compared to $(1.7) million for the nine months ended June 30, 2019. |
§ | On June 29, 2020, the Company completed a “bought deal” equity financing, a concurrent brokered private placement, and a non-brokered private placement to the Company’s Chief Executive Officer and an Independent Director of the Company, for total gross proceeds of $31.8 million. |
§ | At June 30, 2020, the Company had cash on hand of $44.7 million, compared to $4.2 million as at June 30, 2019. |
Operational Highlights:
§ | The Company’s customer base increased 18% year-over-year from 31,306 unique patients served in Q3 2019 to 37,128 unique patients in Q3 2020. |
§ | Through the Company’s continued use of technology and centralized intake processes, respiratory resupply set-ups and/or deliveries increased to 14,436 for the three months ended June 30, 2020, compared to 11,034 for the same period ended June 30, 2019, an increase of 31%. |
§ | The number of equipment set-ups increased to 57,551 in the quarter ended June 30, 2020 from 52,007 in the quarter ended June 30, 2019, an increase of 11%. |
§ | During the second half of Q3 2020, the Company’s sleep business increased as stay-at-home orders were lifted across the U.S. states the Company operates and the Company expects this to continue to increase. |
§ | Strong demand continued for the Company’s respiratory equipment, such as Ventilators, and Oxygen Concentrators, as well as the CPAP resupply and other supplies business. |
§ | The Company continues to expand its sales reach across ten U.S. states by the addition of experienced sales personnel. |
Subsequent Events to the three months ended June 30, 2020:
§ | Completed DTC Eligibility for the Company’s common shares (including those traded on OTCQX) as announced on August 10, 2020. |
o | DTC is a subsidiary of the Depository Trust & Clearing Corporation, a U.S. company that manages the electronic clearing and settlement of publicly traded companies. |
o | DTC eligibility is expected to create a seamless process of trading and enhance liquidity of the Company's common shares in the U.S. over time. |
o | The ability to have Protech’s shares electronically cleared and settled in the U.S. is far more convenient and reduces the costs incurred in trading the Company’s shares. |
o | With Protech’s shares now having the ability to be traded electronically, existing investors are expected to benefit from greater liquidity over time and increased execution speeds, while new investors are expected to be far less restricted from participating in trading Protech’s shares. |
§ | Executed a non-binding letter of intent to acquire a private respiratory care company in the Midwestern U.S. as announced on August 11, 2020 with the following attributes: |
o | Unaudited trailing 12-month annual revenues of approximately $5 million, positive adjusted EBITDA, and positive net income. |
o | Enhances the Company’s presence in the Midwest, including adding a new market, and will increase the Company’s active patient count by over 3,000. |
o | The target company focuses on all aspects of home respiratory equipment with a detailed focus on PAP, PAP resupply and non-invasive therapy with a large ALS and COPD patient base. |
o | The target company has a high acuity respiratory program providing non-invasive ventilation in a 90-mile radius. This program makes up just over a third of the target’s overall revenue and is also the fastest growing segment of the business. |
o | Excellent diversification amongst referral sources, with no more than once source contributing 10%, and a very strong and diversified payor base, with minimal Medicare exposure. |
o | Closing of the acquisition is subject to final due diligence, final negotiation and execution of a definitive purchase agreement and all necessary approvals. |
COVID-19 Update:
§ | Protech qualified as an essential business pursuant to the policies of the U.S. government and has operated at full efficiencies during the COVID-19 pandemic serving over 85,000 active patients with exceptional service while managing increased demand from over 17,000 referring physicians. |
§ | The Company continues to ensure the health and safety of its employees by providing them with the appropriate personal protective equipment for patient-facing employees. |
§ | The Company’s supply chain for critical equipment has remained strong and the Company has ensured its inventory levels are aligned with the increased demand for certain respiratory related products, and the Company is well prepared in the event of a second wave of the virus. |
Management Commentary:
“The third quarter of 2020 was full of milestones for Protech, and I am so proud of the entire team for their extraordinary dedication to demand operational excellence across the entire organization, in the midst of the challenges felt from the COVID-19 pandemic. Our third quarter results showcase the continued strength and robust nature of our business model, and I could not be more excited for the future,” said CEO and Chairman Greg Crawford. “The acceleration of the need for in-home healthcare solutions is being felt across the industry, and powerful tailwinds continue to be felt at our front door. With the strongest balance sheet in our history, we are poised to take advantage of opportunities to significantly scale our business. We believe this pandemic has underscored the importance of our mission, which is to be a dynamic home healthcare provider, focused on end-to-end respiratory care, providing the communities in which we serve incredible high-touch service, education, and easy access to the extraordinary care the company provides.
In addition to our operational excellence, we are also very pleased to have concluded an oversubscribed offering and our Independent Director, Mark Greenberg, and I are excited to have participated alongside our fellow shareholders, underscoring our confidence in the future of Protech. Furthermore, I am very delighted to report that we have reached an important milestone of $100 million in run-rate revenue, ahead of our initial timing expectations, whilst at the same time delivering record Adjusted EBITDA margins. We are also confident that our planned acquisition of a profitable Midwest based respiratory care company, which we recently announced, will assist us to further penetrate existing markets in the Midwest as well as open a new market to us, and we will continue to be laser focused on growing our system. I’d like to once again thank the entire Protech team for their hard work each and every day as well as our stakeholders for all of their continued support.”
Chief Financial Officer, Hardik Mehta added, “We are excited to see our top-line growth continue to accelerate, with revenue growing at 28% year-over-year and 7% sequentially. Moreover, our Adjusted EBITDA margin has breached the 21% level and we remain confident in this trend continuing. On the acquisition front, our pipeline is very robust, with some potential opportunities having larger revenue bases than our previous typical acquisition size. With our significantly enhanced balance sheet, continued margin expansion and improving cash flows, we are in a position to be very aggressive in the event the right acquisition, at the right consideration, presents itself. As always, we will remain prudent as it relates to our acquisition approach and will focus on building long-term shareholder value.”
The financial statements of the Company for the three and six months ended June 30, 2020 and 2019 and accompanying Management Discussion & Analysis (MD&A) are available at www.sedar.com.
ABOUT PROTECH HOME MEDICAL CORP.
The Company provides in-home monitoring and disease management services including end-to-end respiratory solutions for patients in the United States healthcare market. It seeks to continue to expand its offerings to include the management of several chronic disease states focusing on patients with heart or pulmonary disease, sleep disorders, reduced mobility and other chronic health conditions. The primary business objective of the Company is to create shareholder value by offering a broader range of services to patients in need of in-home monitoring and chronic disease management. The Company’s organic growth strategy is to increase annual revenue per patient by offering multiple services to the same patient, consolidating the patient’s services and making life easier for the patient.
Forward-Looking Statements
Certain statements contained in this press release constitute "forward-looking information" as such term is defined in applicable Canadian securities legislation. The words "may", "would", "could", "should", "potential", "will", "seek", "intend", "plan", "anticipate", "believe", "estimate", "expect" and similar expressions as they relate to the Company, including: the Company expecting its sleep business to continue to increase; the Company’s anticipated effects of DTC eligibility; the Company being confident that proposed acquisition of the Midwest based respiratory care company will assist the Company to further penetrate existing markets in the Midwest as well as open a new market to the Company; and the Company being confident that it will continue the trend of increasing its Adjusted EBITDA margin; are intended to identify forward-looking information. All statements other than statements of historical fact may be forward-looking information. Such statements reflect the Company's current views and intentions with respect to future events, and current information available to the Company, and are subject to certain risks, uncertainties and assumptions, including, without limitation: the Company successfully identifying, negotiating and completing one or more acquisitions, including conditions precedent for such acquisitions being satisfied; and current financial trends remaining at or above current levels in respect of anticipations for Adjusted EBITDA margin. Many factors could cause the actual results, performance or achievements that may be expressed or implied by such forward-looking information to vary from those described herein should one or more of these risks or uncertainties materialize. Examples of such risk factors include, without limitation: credit; market (including equity, commodity, foreign exchange and interest rate); liquidity; operational (including technology and infrastructure); reputational; insurance; strategic; regulatory; legal; environmental; capital adequacy; the general business and economic conditions in the regions in which the Company operates; the ability of the Company to execute on key priorities, including the successful completion of acquisitions, business retention, and strategic plans and to attract, develop and retain key executives; difficulty integrating newly acquired businesses; the ability to implement business strategies and pursue business opportunities; low profit market segments; disruptions in or attacks (including cyber-attacks) on the Company's information technology, internet, network access or other voice or data communications systems or services; the evolution of various types of fraud or other criminal behavior to which the Company is exposed; the failure of third parties to comply with their obligations to the Company or its affiliates; the impact of new and changes to, or application of, current laws and regulations; decline of reimbursement rates; dependence on few payors; possible new drug discoveries; a novel business model; dependence on key suppliers; granting of permits and licenses in a highly regulated business; the overall difficult litigation environment, including in the U.S.; increased competition; changes in foreign currency rates; increased funding costs and market volatility due to market illiquidity and competition for funding; the availability of funds and resources to pursue operations; critical accounting estimates and changes to accounting standards, policies, and methods used by the Company; the occurrence of natural and unnatural catastrophic events and claims resulting from such events; and risks related to COVID-19 including various recommendations, orders and measures of governmental authorities to try to limit the pandemic, including travel restrictions, border closures, non-essential business closures, quarantines, self-isolations, shelters-in-place and social distancing, disruptions to markets, economic activity, financing, supply chains and sales channels, and a deterioration of general economic conditions including a possible national or global recession; as well as those risk factors discussed or referred to in the Company’s disclosure documents filed with the securities regulatory authorities in certain provinces of Canada and available at www.sedar.com. Should any factor affect the Company in an unexpected manner, or should assumptions underlying the forward-looking information prove incorrect, the actual results or events may differ materially from the results or events predicted. Any such forward-looking information is expressly qualified in its entirety by this cautionary statement. Moreover, the Company does not assume responsibility for the accuracy or completeness of such forward-looking information. The forward-looking information included in this press release is made as of the date of this press release and the Company undertakes no obligation to publicly update or revise any forward-looking information, other than as required by applicable law.
Unless otherwise specified, all dollar amounts in this press release are expressed in Canadian dollars.
Non-GAAP Measures
This press release refers to “Adjusted EBITDA” which is a non-GAAP and non-IFRS financial measure that does not have a standardized meaning prescribed by GAAP or IFRS. The Company’s presentation of this financial measure may not be comparable to similarly titled measures used by other companies. This financial measure is intended to provide additional information to investors concerning the Company’s performance. Adjusted EBITDA is defined as EBITDA excluding stock-based compensation. Adjusted EBITDA is a Non-IFRS measure the Company uses as an indicator of financial health and excludes several items which may be useful in the consideration of the financial condition of the Company, including interest expense, income taxes, depreciation, amortization, stock-based compensation, goodwill impairment and change in fair value of debentures and financial derivatives. The following table shows our Non-IFRS measure (Adjusted EBITDA) reconciled to our net income for the indicated periods:
Three months ended June 30, 2020 |
Three months ended June 30, 2019 |
Nine months ended June 30, 2020 |
|
Nine months ended June 30, 2019 |
||||||||||||
Net income (loss) from continuing operations | $ | (3,731 | ) | $ | (12,564 | ) | $ | (3,432 | ) | $ | (13,542 | ) | ||||
Add back: | ||||||||||||||||
Depreciation and amortization | 5,188 | 3,377 | 14,640 | 9,699 | ||||||||||||
Interest expense, net | 651 | 944 | 1,875 | 2,105 | ||||||||||||
Change in fair value of debentures and derivative | 3,314 | (161 | ) | 1,500 | (133 | ) | ||||||||||
Loss on extinguishment of debt | - | 1,107 | - | 1,107 | ||||||||||||
Provision for income taxes | 49 | 29 | 93 | 134 | ||||||||||||
EBITDA | 5,451 | (7,268 | ) | 14,676 | (630 | ) | ||||||||||
Stock-based compensation | 73 | 446 | 207 | 1,337 | ||||||||||||
Loss from cyber incident | - | 9,184 | - | 9,184 | ||||||||||||
Acquisition-related costs | - | 1,401 | - | 1,401 | ||||||||||||
Adjusted EBITDA | $ | 5,544 | $ | 3,763 | $ | 14,883 | $ | 11,292 |
Management uses this non- IFRS measure as a key metric in the evaluation of the Company’s performance and the consolidated financial results. The Company believes this non- IFRS measure is useful to investors in their assessment of the operating performance and the valuation of the Company. In addition, this non- IFRS measure addresses questions the Company routinely receives from analysts and investors and, in order to assure that all investors have access to similar data, the Company has determined that it is appropriate to make this data available to all investors. However, non- IFRS financial measures are not prepared in accordance with IFRS, and the information is not necessarily comparable to other companies and should be considered as a supplement to, not a substitute for, or superior to, the corresponding measures calculated in accordance with IFRS.
Neither the TSX Venture Exchange nor its Regulation Services Provider (as that term is defined in the policies of the TSX Venture Exchange) accepts responsibility for the adequacy or accuracy of this release.
For further information please visit our website at www.protechhomemedical.com, or contact:
Cole Stevens
VP of Corporate Development
Protech Home Medical Corp.
859-300-6455
cole.stevens@myphm.com
Gregory Crawford
Chief Executive Officer
Protech Home Medical Corp.
859-300-6455
investorinfo@myphm.com
Exhibit 99.57
3rd Quarter 2020 |
|
Management’s Discussion and Analysis For the Three and Nine Months Ended June 30, 2020 |
Protech Home Medical Corp. |
|
MANAGEMENT’S DISCUSSION AND ANALYSIS June 30, 2020 and 2019 (Dollar amounts expressed in thousands of Canadian Dollars) |
The following Management’s Discussion and Analysis (“MD&A”) of the financial condition and results of operations of Protech Home Medical Corp. (“Protech” or the “Company”), prepared as of August 17, 2020 and should be read in conjunction with the interim condensed consolidated financial statements for the quarter ended June 30, 2020, including the notes therein. The interim condensed consolidated financial statements have been prepared in accordance with International Financial Reporting Standards (“IFRS”). Unless otherwise specified, all financial data is presented in Canadian dollars. The words “we”, “our”, “us”, “Company”, and “Protech” refer to Protech Home Medical Corp and/or the management and employees of the Company.
Additional information relevant to the Company is available for review on SEDAR at www.sedar.com.
Table of Contents
Caution Regarding Forward-Looking Statements | Page 2 | |
Quarterly Highlights and Selected Quarterly Information | Page 3 | |
About Our Business and Operating Results | Pages 3 – 7 | |
Financial Position | Pages 7 – 9 | |
Accounting and Disclosure Matters | Pages 9 – 12 | |
Financial Instruments and Risk Management | Pages 12 – 13 | |
Risk Factors | Pages 13 – 17 |
CAUTION REGARDING FORWARD-LOOKING STATEMENTS
Information included or incorporated by reference in this report may contain forward-looking statements. This information may involve known and unknown risks, uncertainties, and other factors which may cause our actual results, performance, or achievements to be materially different from the future results, performance, or achievements expressed or implied by any forward-looking statements. Forward-looking statements, which involve assumptions and describe our future, strategies, and expectations, are generally identifiable by use of the words “may,” “will,” “should,” “expect,” “anticipate,” “estimate,” “believe,” “plan,” “intend” or “project” or the negative of these words or other variations on these words or comparable terminology. Readers are cautioned regarding statements discussing profitability; growth strategies; anticipated trends in our industry; our future financing plans; and our anticipated needs for working capital. Actual events or results may differ materially from those discussed in forward-looking statements. There can be no assurance that the forward-looking statements contained in this report will in fact occur. The Company bases its forward-looking statements on information currently available to it and assumes no obligation to update them.
THE FORWARD-LOOKING INFORMATION CONTAINED IN THIS MD&A PRESENTS THE EXPECTATIONS OF THE COMPANY AS OF THE DATE OF THIS MD&A AND, ACCORDINGLY, IS SUBJECT TO CHANGE AFTER SUCH DATE. READERS SHOULD NOT PLACE UNDUE IMPORTANCE ON FORWARD-LOOKING INFORMATION AND SHOULD NOT RELY UPON THIS INFORMATION AS OF ANY OTHER DATE. WHILE THE COMPANY MAY ELECT TO, THE COMPANY DOES NOT UNDERTAKE TO UPDATE THIS INFORMATION AT ANY PARTICULAR TIME EXCEPT AS REQUIRED BY APPLICABLE SECURITIES LEGISLATION.
Page | 2 |
|
MANAGEMENT’S DISCUSSION AND ANALYSIS June 30, 2020 and 2019 (Dollar amounts expressed in thousands of Canadian Dollars) |
QUARTERLY HIGHLIGHTS
- | Increased revenues to $25.9 million, or 28%, from the quarter ended June 30, 2019, achieving a $100 million annual run rate |
- | Completed a bought deal public offering for gross proceeds of $31.8 million |
- | Increased the number of equipment set-ups to 57,551 in the quarter ended June 30, 2020 from 52,007 in the quarter ended June 30, 2019, an increase of 11% |
- | Increased the number of respiratory resupply set-ups to 14,436 in the quarter ended June 30, 2020 from 11,034 in the quarter ended June 30, 2019, an increase of 31% |
- | Gross margin in the quarter ended June 30, 2020 was 71%, an increase from 70% in the prior year quarter |
- | Generated Adjusted EBITDA of $5.5 million, a 47% increase from the prior year quarter |
SELECTED INTERIM INFORMATION
For the three months
ended June 30, 2020 |
For the three months
ended June 30, 2019 |
For the nine months
ended June 30, 2020 |
For the nine months
ended June 30, 2019 |
|||||||||||||
Number of patients served(1) | 37,128 | 31,306 | 74,898 | 63,847 | ||||||||||||
Number of equipment set-ups or deliveries | 57,551 | 52,007 | 184,204 | 154,626 | ||||||||||||
Respiratory resupply set-ups or deliveries | 14,436 | 11,034 | 41,855 | 33,954 | ||||||||||||
Adjusted EBITDA(2) | $ | 5,544 | $ | 3,763 | $ | 14,883 | $ | 11,292 |
(1) | The nine-month periods do not equal the sum of the respective three-month periods due to some patients being served in multiple three-month periods. |
(2) | Refer to page four for definition of Adjusted earnings before interest, taxes, depreciation, and amortization (“EBITDA”) |
The words “we”, “our”, “us”, “Company”, and “Protech” refer to Protech Home Medical Corp. and/or the management and employees of the Company.
ABOUT OUR BUSINESS
Protech business objective
The growth in the number of elderly patients in the US healthcare market is creating pressure to provide more efficient delivery systems. Healthcare providers, such as hospitals, physicians and pharmacies, are seeking partners that can offer a range of products and services that improve outcomes, reduce hospital readmissions and help control costs. Protech fills this need by delivering a growing number of specialized products and services to achieve these goals. Protech seeks to provide an ever-expanding line of products and services over larger geographic regions within the United States using several growth strategies.
Future Outlook
Protech expects to generate net profit and positive adjusted EBITDA, excluding IFRS treatment of non-cash items. Our top priority continues to be the generation of operational net profit, positive cash flow, and positive EBITDA in fiscal year 2020 and beyond. As we continue to expand in our existing markets, we plan to leverage our business platforms to enter new markets. As we continue to grow and achieve scale, the increasing cash generated from operations will be used to market our service and to gain market share.
Going forward, we seek to find ways to continue to grow our customer base and penetrate these markets, while continuing to streamline our operational platform and generate positive cash flow and operational profits. We will continue to improve on operational efficiencies and call center management as they are key execution points in order to maintain our healthy gross margin while growing revenues via the cross selling of services to existing and acquired patients.
OPERATING RESULTS
COVID-19 Pandemic
On March 11, 2020, the World Health Organization declared the outbreak of a novel strain of coronavirus (“COVID-19”) a global pandemic. In response to the outbreak, governmental authorities in the United States and internationally have introduced various recommendations and measures to try to limit the pandemic, including travel restrictions, non-essential business closures, quarantines, and social distancing. The COVID-19 outbreak and the response of governmental authorities to try to limit it are having a significant impact on the private sector and individuals, including unprecedented business, employment, and economic disruptions.
The Company is considered an essential business and, as such, has continued full operations throughout the pandemic. The Company’s operations continue to perform soundly, with demand remaining elevated and supply chain stability continuing through the third quarter and thereafter. In particular, the Company has experienced increased demand for respiratory equipment, such as ventilators and oxygen concentrators, CPAP supplies, and, in the second half of the third quarter, sleep products.
Page | 3 |
|
MANAGEMENT’S DISCUSSION AND ANALYSIS June 30, 2020 and 2019 (Dollar amounts expressed in thousands of Canadian Dollars) |
As certain areas of the US, including some markets where the Company operates, are seeing a second wave of COVID-19 cases, the Company has taken the necessary steps to plan, prepare, and respond, treating patients in their homes to relieve the strain on the traditional healthcare system. We continue to provide our patient-facing employees with personal protective equipment.
During the three months ended June 30, 2020, the Company received relief payments related to the two separate provisions of the U.S. Coronavirus Aid, Relief and Economic Security (“CARES”) Act.
Payroll Protection Plan (“PPP’)
On April 21, 2020, the Company received approximately $6,000,000 ($5,800,000 at the June 30, 2020 exchange rate) related to the PPP, which was to assist companies in maintaining their workforce. The PPP provided for loans to qualifying businesses for amounts up to 2.5 times of the average monthly payroll expenses. The loans and accrued interest are forgivable as long as the borrower uses the loan proceeds for eligible purposes, including payroll, benefits, rent, and utilities for up to twenty-four weeks, and maintains certain payroll levels. The unforgiven portion of the PPP loan is payable over two years at an interest rate of 1%, with a deferral of payments for the first six months. The Company expects to meet the PPP’s forgiveness eligibility criteria.
Public Health and Social Services Emergency Fund (“Relief Fund”)
During the three months ended June 30, 2020, the Company received approximately $2,400,000 from the Relief Fund, which was established to support healthcare providers to prevent, prepare for, and respond to coronavirus, including health care related expenses or lost revenues, subject to certain terms and conditions. If those terms and conditions are met, payments do not need to be repaid. No expenses related to the PPP can be used to meet the terms and conditions for the Relief Fund. The Company expects to meet the Relief Fund’s terms and conditions.
Accounting policies and estimates
The interim consolidated financial statements for the three and nine months ended June 30, 2020 are prepared under International Financial Reporting Standards (“IFRS”) issued by the governing body of the International Accounting Standards Board (“IASB”). The preparation of financial statements in conformity with IFRS requires management to make estimates and assumptions. These estimates and assumptions affect the reported amounts of assets and liabilities, disclosures of contingent assets and liabilities, and the reported amounts of revenues and expenses for the period of consolidated financial statements.
IFRS accounting treatment
Management does not rely upon non-cash IFRS accounting treatment of certain items such as impairment of goodwill and intangible assets, changes in the fair value of financial derivatives, stock based compensation and amortization of intangible assets when planning, monitoring, and evaluating the Company’s performance or in making financial decisions.
Non-IFRS measures
Throughout this MD&A, references are made to several measures which are believed to be meaningful in the assessment of the Company’s performance. These metrics are non-standard measures under IFRS and may not be identical to similar measures reported by other companies. Also, in the future, we may disclose different non- IFRS financial measures to help our investors more meaningfully evaluate and compare our future results of operations to our previously reported results of operations. Readers are cautioned that the disclosure of these items is meant to add to, and not replace, the discussion of financial results as determined in accordance with IFRS. The primary purpose of these non-IFRS measures is to provide supplemental information that may prove useful to investors who wish to consider the impact of certain non-cash or uncontrollable items on the Company’s operating performance.
EBITDA and Adjusted EBITDA
In calculating EBITDA and adjusted EBITDA certain items (mostly non-cash) are excluded from net income (loss) including interest, income taxes, depreciation, amortization, change in fair value of debentures and derivative, stock-based compensation, loss from cyber incident, and acquisition-related costs. Set forth below are descriptions of the financial items that have been excluded from net income or loss to calculate EBITDA and Adjusted EBITDA and the material limitations associated with using these non-IFRS financial measures as compared to net income or loss.
- | Depreciation and amortization expense may be useful for investors to consider because they generally represent the wear and tear on our property and equipment used in our operations and amortization of intangibles valued in purchase accounting. However, we do not believe these charges necessarily reflect the current and ongoing cash charges related to our operating costs. |
- | The amount of interest expense we incur may be useful for investors to consider and may result in current cash inflows or outflows. However, we do not consider the amount of interest expense or interest income to be a representative component of the day-to-day operating performance of our business. |
Page | 4 |
|
MANAGEMENT’S
DISCUSSION AND ANALYSIS
June 30, 2020 and 2019 (Dollar amounts expressed in thousands of Canadian Dollars) |
- | Change in fair value of debentures and derivative may be useful for investors to consider as it represents changes in the fair value of debentures, driven by changes in the trading price of the debentures. These changes are non-cash, as the settlement of the underlying debenture will be at the face value. | |
- | Provision for income taxes may be useful for investors to consider because it generally represents the taxes which may be payable for the period and may reduce the amount of funds otherwise available for use. However, we do not consider the amount of income tax expense to be a representative component of the day-to-day operating performance of our business. | |
- | Stock-based compensation may be useful for investors to consider because it is an estimate of the non-cash component of compensation received by the Company’s directors, officers, employees, and consultants. However, stock-based compensation is being excluded from the Company’ s operating expenses because the decisions which gave rise to these expenses were not made to increase revenue in a particular period but were made for the Company’ s long-term benefit over multiple periods. While strategic decisions, such as those to issue stock-based awards are made to further the Company’ s long-term strategic objectives and do impact the Company’s earnings under IFRS, these items affect multiple periods and management is not able to change or affect these items within any period. |
- | Loss from cyber incident and acquisition-related costs were non-recurring costs that we do not consider to be representative of day-to-day operations. |
Management uses both IFRS and non-IFRS measures when planning, monitoring, and evaluating the Company’s performance.
The following table of adjusted EBITDA show our IFRS measures reconciled to EBITDA (non-IFRS measure) for the indicated periods. The table of net (loss) income is also measured based on IFRS. Both tables are shown net of discontinued operations. Discontinued operations are comprised of the earnings after tax of discontinued operations until divestiture and the gain or loss after tax on sale, less costs to sell.
Three
months ended June 30, 2020 |
Three
months ended June 30, 2019 |
Nine months
ended June 30, 2020 |
Nine months
ended June 30, 2019 |
|||||||||||||
Net income (loss) from continuing operations | $ | (3,731 | ) | $ | (12,564 | ) | $ | (3,432 | ) | $ | (13,542 | ) | ||||
Add back: | ||||||||||||||||
Depreciation and amortization | 5,188 | 3,377 | 14,640 | 9,699 | ||||||||||||
Interest expense, net | 651 | 944 | 1,875 | 2,105 | ||||||||||||
Change in fair value of debentures and derivative | 3,314 | (161 | ) | 1,500 | (133 | ) | ||||||||||
Loss on extinguishment of debt | - | 1,107 | - | 1,107 | ||||||||||||
Provision for income taxes | 49 | 29 | 93 | 134 | ||||||||||||
EBITDA | 5,451 | (7,268 | ) | 14,676 | (630 | ) | ||||||||||
Stock-based compensation | 73 | 446 | 207 | 1,337 | ||||||||||||
Loss from cyber incident | - | 9,184 | - | 9,184 | ||||||||||||
Acquisition-related costs | - | 1,401 | - | 1,401 | ||||||||||||
Adjusted EBITDA | $ | 5,544 | $ | 3,763 | $ | 14,883 | $ | 11,292 |
Page | 5 |
|
MANAGEMENT’S
DISCUSSION AND ANALYSIS
June 30, 2020 and 2019 (Dollar amounts expressed in thousands of Canadian Dollars) |
Three
months ended June |
Three
months ended June |
Nine
months ended June |
Nine
months ended June |
|||||||||||||
30, 2020 | 30, 2019 | 30, 2020 | 30, 2019 | |||||||||||||
Revenues | $ | 25,869 | $ | 20,164 | $ | 72,739 | $ | 61,497 | ||||||||
Cost of revenue | 7,437 | 6,068 | 19,968 | 18,380 | ||||||||||||
Gross profit | 18,432 | 14,096 | 52,771 | 43,117 | ||||||||||||
Gross margin % | 71 | % | 70 | % | 73 | % | 70 | % | ||||||||
Selling, general, and administrative | 12,892 | 10,372 | 38,184 | 31,695 | ||||||||||||
Depreciation | 5,016 | 3,224 | 14,062 | 9,244 | ||||||||||||
Amortization of intangible assets | 172 | 153 | 578 | 455 | ||||||||||||
Stock-based compensation | 73 | 446 | 207 | 1,337 | ||||||||||||
Loss from cyber incident | - | 9,184 | - | 9,184 | ||||||||||||
Acquisition-related costs | - | 1,401 | - | 1,401 | ||||||||||||
Gain on disposals of property and equipment | (15 | ) | (39 | ) | (106 | ) | 124 | |||||||||
Other expense (income) | 11 | - | (190 | ) | 6 | |||||||||||
Interest expense, net | 651 | 944 | 1,875 | 2,105 | ||||||||||||
Loss on extinguishment of debentures | - | 1,107 | - | 1,107 | ||||||||||||
Change in fair value of debentures and derivative | 3,314 | (161 | ) | 1,500 | (133 | ) | ||||||||||
Provision for income taxes | 49 | 29 | 93 | 134 | ||||||||||||
Net income (loss) from continuing operations | (3,731 | ) | (12,564 | ) | (3,432 | ) | (13,542 | ) | ||||||||
Income (loss) from discontinued operations | - | 25 | (416 | ) | 607 | |||||||||||
Net income (loss) | $ | (3,731 | ) | $ | (12,539 | ) | $ | (3,848 | ) | $ | (12,935 | ) | ||||
Income (loss) per share | ||||||||||||||||
Basic | $ | (0.04 | ) | $ | (0.15 | ) | $ | (0.05 | ) | $ | (0.16 | ) | ||||
Diluted | (0.04 | ) | (0.15 | ) | (0.05 | ) | (0.16 | ) |
Revenue
For the three months ended June 30, 2020, revenue totaled $25,869,000, an increase of approximately $5,700,000, or 28%, from the same period in 2019. This increase is due to the acquisitions of two businesses in the first quarter of fiscal year 2020 and organic growth.
For the nine months ended June 30, 2020, revenue totaled $72,739,000, an increase of approximately $11,200,000, or 18%, from the same period in 2019. This increase is due to the acquisitions of two businesses in the first quarter of fiscal year 2020 and organic growth.
Gross profit
For the three months ended June 30, 2020 gross profit was approximately $18,432,000, or 71% of revenues, as compared to $14,096,000, or 70% of revenues, during the same period in 2019. The gross margin % improvement during the period was primarily due to better inventory management to achieve better costs.
For the nine months ended June 30, 2020 gross profit was $52,771,000, or 73% of revenues, as compared to $43,117,000, or 70% of revenues, during the same period in 2019. The gross margin % improvement during the period was primarily due to better inventory management to achieve better costs.
Selling, general, and administrative expense
For the three months ended June 30, 2020, total selling, general, and administrative expenses were $12,892,000, or 50% of revenue, as compared to $10,372,000, or 51% of revenue for the same period in 2019. The increase in dollars was primarily due to approximately $1,500,000 from the acquisitions of two businesses in the first quarter of 2020. An increase in bad debt expense was partially offset by lower facility costs due to the adoption of IFRS 16, Leases (see Note 2 to the interim condensed consolidated interim financial statements). The improvement as a percent of revenue is due to controlling payroll costs relative to increasing revenues.
For the nine months ended June 30, 2020, total selling, general and administrative expenses were $38,184,000, an increase of approximately $6,500,000 from the same period in 2019. The increase was primarily due to approximately $4,800,000 from the acquisitions of two businesses in the first quarter of 2020. An increase in bad debt expense was partially offset by lower facility costs due to the adoption of IFRS 16, Leases (see Note 2 to the interim condensed consolidated interim financial statements).
Page | 6 |
|
MANAGEMENT’S
DISCUSSION AND ANALYSIS
June 30, 2020 and 2019 (Dollar amounts expressed in thousands of Canadian Dollars) |
Depreciation expense
Depreciation expense increased by approximately $1,800,000 to $5,016,000 for the three months ended June 30, 2020. Approximately $600,000 was due to the acquisitions of two businesses in the first quarter of 2020, and approximately $600,000 was due to the adoption of IFRS 16, Leases (see Note 2 to the interim condensed consolidated interim financial statements). The remaining increase is primarily due to increased depreciation on monitoring equipment added in the second half of 2019 and the first half of 2020.
Depreciation expense increased by approximately $4,800,000 to $14,062,000 for the nine months ended June 30, 2020. Approximately $1,600,000 was due to the two acquisitions of two businesses in the first quarter of 2020 and approximately $1,500,000 was due to the adoption of IFRS 16, Leases (see Note 2 to the interim condensed consolidated interim financial statements). The remaining increase is due to increased depreciation on monitoring equipment added in the second half of 2019 and the first half of 2020.
Stock-based compensation
For the three and nine months ended June 30, 2020, stock-based compensation was $73,000 and $207,000, respectively, compared to $446,000 and $1,337,000 in the respective periods of the prior year. The decline is due to options becoming fully vested during the year ended September 30, 2019.
Interest expense and accretion expense
Interest expense on debentures for the three months ended June 30, 2020 decreased to $300,000 from $430,000 for the three months ended June 30, 2019, as the prior year contained a period with two debentures outstanding. The Company issued new debentures on March 7, 2019 for $15,000,000, bearing an interest rate of 8.0%, but did not pay off the prior debentures of $8,625,000 bearing an interest rate of 7.5% until May 2019. Other interest expense for the three months ended June 30, 2020 of $351,000 increased from $171,000 for the three months ended June 30, 2019, primarily due to having a higher lease liability balance from the adoption of IFRS 16, Leases. The accretion expense in 2019 related to the debentures that were repaid in May 2019.
Interest expense on debentures for the nine months ended June 30, 2020 increased to $900,000 from $753,000 for the nine months ended June 30, 2019, due to the current debentures having a face value and higher interest rate than the prior debentures. The Company issued new debentures on March 7, 2019 for $15,000,000, bearing an interest rate of 8.0%, as compared to the prior debentures of $8,625,000 bearing an interest rate of 7.5%. Other interest expense for the nine months ended June 30, 2020 of $975,000 increased from $489,000 for the three months ended June 30, 2019, primarily due to having a higher lease liability balance from the adoption of IFRS 16, Leases. The accretion expense in 2019 related to the debentures that were repaid in May 2019.
Change in fair value of debentures and derivative
For the three and nine months ended June 30, 2020, the change in fair value of debentures and derivative was a loss of $3,314,000 and $1,500,000, respectively, and was due to the increase in the trading price of the debenture. For the three and nine months ended June 30, 2019, the change in fair value of debentures and derivative was a small gain as the result of changes in the fair value of outstanding warrants.
As at | As at | |||||||
FINANCIAL POSITION | June 30, 2020 | September 30, 2019 | ||||||
Cash | $ | 44,678 | $ | 12,855 | ||||
Accounts receivable | 12,572 | 12,390 | ||||||
Inventory | 8,354 | 4,738 | ||||||
Other current assets | 1,263 | 800 | ||||||
Total current assets | 66,867 | 30,783 | ||||||
Property and equipment | 22,272 | 19,496 | ||||||
Intangible and other assets | 8,031 | 4,886 | ||||||
Total assets | $ | 97,170 | $ | 55,165 | ||||
Total current liabilities, including current portion of lease liabilities | $ | 30,060 | $ | 18,969 | ||||
Long-term debt and other long-term liabilities | 21,307 | 17,047 | ||||||
Total liabilities | 51,367 | 36,016 | ||||||
Total shareholders’ equity | 45,803 | 19,149 | ||||||
Total liabilities and shareholders’ equity | $ | 97,170 | $ | 55,165 |
Liquidity
At June 30, 2020, the Company had cash on hand of $44,678,000. The Company’s approach in managing liquidity is to ensure, to the extent possible, that it will have enough liquidity to meet its liabilities as they come due by continuously monitoring actual and expected cash flows and monitoring financial market conditions for signs of weakness.
Page | 7 |
|
MANAGEMENT’S
DISCUSSION AND ANALYSIS
June 30, 2020 and 2019 (Dollar amounts expressed in thousands of Canadian Dollars) |
As of June 30, 2020, the Company faces no material liquidity risk and can meet all its current financial obligations as they become due and payable. The Company has $30,060,000 liabilities that are due within one year but has $66,867,000 of current assets to meet those obligations.
Capital Resources
The Company’s shareholders’ equity totaled $45,803,000 at June 30, 2020 and had debentures with a face amount of $15,000,000. Additionally, the Company had lease liabilities with a principal amount of $15,480,000.
The Company plans to raise capital, as necessary, to meet its needs and take advantage of perceived opportunities and, therefore, does not have a numeric target for its capital structure. Funds are primarily secured through debt instruments, equity capital raised by way of private placements, and convertible notes. There can be no assurance that the Company will be able to continue raising capital in this manner.
Management reviews its capital management approach on an ongoing basis and believes that this approach, given the relative size of the Company, is reasonable.
The Company invests all capital that is surplus to its immediate operational needs in short-term, liquid and highly rated financial instruments, such as cash and short-term guarantee deposits, held with major Canadian and US financial institutions.
On June 29, 2020, the Company completed a public offering, a concurrent brokered private placement, and a non-brokered private placement to the Company’s Chief Executive Officer and a director of the Company, for 25,001,000, 1,750,000 and 927,826 units, respectively. Each unit issued was issued at a price of $1.15 for total gross proceeds of $31,831,000, and consisted of one common share and one-half of one common share purchase warrant (each whole warrant, a “Warrant”). Issuance costs of $2,546,000 in cash, including underwriters’ commissions of $1,692,000 were incurred, resulting in net proceeds to the Company of $29,835,000 The net proceeds will be used to increase the cash position of the Company without any other current known or specified near- or medium-term purpose. The Company believes it is prudent to secure capital to ensure that the Company maintains sufficient liquidity and capital resources in the near- to medium-term. In addition, the Company wishes to ensure that it has sufficient cash on hand in order to complete strategic acquisitions in the future if, as, and when any such opportunities arise. The Company has spent the last several years building and solidifying its platform and now believes there are opportunities to pivot into a strategy more focused on growth. The Company intends to use the net proceeds to strengthen its balance sheet to ensure that it is well positioned to aggressively pursue its corporate strategy to grow the business, both organically and via acquisition. The Company continues to pursue additional accretive acquisitions that are designed to build scale, within markets currently served and new markets. The focus remains on strategic locations driven by product mix, distribution volumes, and the ability to consolidate distribution channels to drive operating efficiencies and maximize earnings accretion. The Company is focused on targets with stable revenue generation and consistent EBITDA margins, to which it can add expanded product offerings, improved cost of goods sold through purchasing volume, and efficiencies across the operations.
The anticipated use of net proceeds as detailed above is based on the best estimates prepared by management of the Company. Actual expenditures may differ from the expectations set forth above. The stated business objectives of the Company are to remain focused on the continued operations of its business, while looking for opportunities to increase revenue and reduce costs in an effort to improve margins, which can, if the opportunity arises, include one or more strategic acquisitions.
Until applied, the net proceeds will be held as cash balances in the Company’s bank account or invested in certificates of deposit and other instruments issued by banks or obligations of or guaranteed by the Government of Canada or any province thereof or the Government of the United States or any state thereof.
Each Warrant will be exercisable to acquire one common share for a period of 12 months following the closing at an exercise price of $1.60 per share. The Company issued compensation options to the underwriter for 1,471,305 shares at the issue price of $1.15 for a period of two years from the closing of the offering.
The Company had the following equity instruments outstanding at June 30, 2020 and September 30, 2019:
As at
June 30, 2020 (000’s) |
As at
September 30, 2019 (000’s) |
|||||||
Common shares | 111,845 | 83,589 | ||||||
Compensation Options | 2,357 | 886 | ||||||
Warrants | 13,839 | - | ||||||
Options – employees and consultants | 10,730 | 11,392 |
Page | 8 |
|
MANAGEMENT’S
DISCUSSION AND ANALYSIS
June 30, 2020 and 2019 (Dollar amounts expressed in thousands of Canadian Dollars) |
Commitments and Contingencies
From time to time, the Company is involved in various legal proceedings arising from the ordinary course of business, None of the matters in which the Company is currently involved, either individually, or in the aggregate, is expected to have a material adverse effect on the Company’s consolidated financial position, results of operations, or cash flows.
Summary of Quarterly Operating Results from continuing operations
A summary of quarterly results for the eight most recently completed quarters are as follows:
Quarter ended
June 30, 2020 |
Quarter ended
March 31, 2020 |
Quarter ended
December 31, 2019 |
Quarter ended
September 30, 2019 |
|||||||||||||
Revenue | $ | 25,869 | $ | 24,101 | $ | 22,769 | $ | 19,470 | ||||||||
Net income (loss) from continuing operations | (3,731 | ) | 2,056 | (1,758 | ) | 4,400 | ||||||||||
Net income (loss) per share – continuing operations | $ | (0.04 | ) | $ | 0.02 | $ | (0.02 | ) | $ | 0.05 |
Quarter ended
June 30, 2019 |
Quarter ended March 31, 2019 |
Quarter ended
December 31, 2018 |
Quarter ended
September 30, 2018 |
|||||||||||||
Revenue | $ | 20,164 | $ | 20,824 | $ | 20,509 | $ | 18,041 | ||||||||
Net income (loss) from continuing operations | (12,564 | ) | (591 | ) | (386 | ) | 679 | |||||||||
Net income (loss) per share – continuing operations | $ | (0.15 | ) | $ | (0.01 | ) | $ | (0.00 | ) | $ | 0.01 |
Results of operations for the healthcare services market in which the Company operates show little seasonality from quarter to quarter.
Related party transactions
The Company entered into six market rate leases for office, warehouse, and retail space with a rental Company affiliated with the Company’s Chief Executive Officer, the majority of which were entered into in 2015. The leases have a combined area of 74,520 square feet. Lease payments under these leases are approximately $68,000 per month, plus taxes, utilities and maintenance.
Payments of approximately $59,000 and $56,000 were made to members of the Board of Directors for three months ended June 30, 2020 and 2019, respectively. Payments of $172,000 and $181,000 were made to the board for the nine months ended June 30, 2020 and 2019, respectively.
Key management personnel also participate in the Company’s share option program. The Company paid or accrued compensation to key management personnel the following:
Three
months ended June 30, 2020 |
Three
months ended June 30, 2019 |
Nine months
ended June 30, 2020 |
Nine months
ended June 30, 2019 |
|||||||||||||
Salaries and Benefits | $ | 272 | $ | 237 | $ | 796 | $ | 1,225 | ||||||||
Stock-based compensation | - | 296 | -858 | |||||||||||||
Total | $ | 264 | $ | 995 | $ | 523 | $ | 1,571 |
Off balance sheet arrangements
The Company has no material undisclosed off-balance sheet arrangements that have or are reasonably likely to have, a current or future effect on its results of operations or financial condition.
ACCOUNTING AND DISCLOSURE MATTERS
Financial reporting controls
The Company is not required to certify the design and evaluation of its disclosure controls and procedures and internal controls over financial reporting and has not completed such an evaluation.
There were no substantive changes in the Company’s disclosure controls and procedures and internal controls over financial reporting during the period ended June 30, 2020 that have materially affected, or are reasonably likely to materially affect, the Company’s disclosure controls and procedures and internal controls over financial reporting.
Page | 9 |
|
MANAGEMENT’S
DISCUSSION AND ANALYSIS
June 30, 2020 and 2019 (Dollar amounts expressed in thousands of Canadian Dollars) |
Critical accounting estimates
The preparation of financial statements in conformity with IFRS requires management to make estimates and assumptions that affect the reported amounts of assets, liabilities, revenues and expenses and the disclosure of contingent assets and liabilities in the interim condensed consolidated financial statements. We constantly evaluate these estimates and assumptions.
We base our estimates and assumptions on experience and other factors that are deemed reasonable under the circumstances. This involves varying degrees of judgment and uncertainty, thus the amounts currently reported in the interim condensed consolidated financial statements could prove to be inaccurate in the future.
We consider the estimates and assumptions described in this section to be an important part in understanding the interim condensed consolidated financial statements. These estimates and assumptions are subject to change, as they rely heavily on management’ s judgment and are based on factors that are inherently uncertain.
Revenue recognition
Revenue consists of net patient service revenue. Net patient service revenue is recognized at the time services are provided net of contractual adjustments based on an evaluation of expected collections resulting from the analysis of current and past due accounts, past collection experience in relation to amounts billed and other relevant information. Contractual adjustments result from the differences between the rates charged for services and reimbursements by government-sponsored healthcare programs and insurance companies for such services.
Accounts receivable
Accounts receivable are recorded at the time revenue is recognized and are presented on the balance sheet net of an allowance for uncollectible accounts. It is possible that our estimates of the allowance for uncollectible accounts could change, which could have a material impact on our operations and cash flows.
The Company will write-off receivables when the likelihood for collection is remote or and when the Company believes collection efforts have been fully exhausted and it does not intend to devote additional resources in attempting to collect.
Stock-based compensation
The Company accounts for stock-based compensation, including employee and consultant stock options, stock grants to consultants, underwriter compensation options, and warrants, using the fair value method as prescribed by IFRS 2. Under this method, the fair value of stock options and warrants at the date of grant is amortized over the vesting period and the offsetting credit is recorded as an increase in contributed surplus. The Company accounts for forfeitures as they occur.
Income taxes
The Company is subject to income taxes in numerous jurisdictions. Significant judgment is required in determining the provision for income taxes and the Company’s income tax provisions reflect management’s interpretation of country-specific tax law. There are many transactions and calculations for which the ultimate tax determination is uncertain during the ordinary course of business and may remain uncertain for several years after their occurrence. The Company recognizes assets and liabilities for taxation when it is probable that the relevant taxation authority will require the Company to receive or pay taxes.
Where the outcome of the determination of tax assets and liabilities is different from the amounts that were initially recorded, such differences will impact the current and deferred income taxes provision in the period in which such determination is made. Changes in tax law or changes in the way tax law is interpreted may also impact the Company’s effective tax rate as well as its business and operations.
Deferred income tax assets and liabilities are recognized for the future income tax consequences attributable to temporary differences between the financial statement carrying value of assets and liabilities and their respective income tax bases. Deferred income tax assets or liabilities are measured using enacted or substantively enacted income tax rates expected to apply to taxable income in the years in which those temporary differences are expected to be recovered or settled.
The calculation of current and deferred income taxes requires management to make estimates and assumptions and to exercise a certain amount of judgment concerning the carrying value of assets and liabilities. The current and deferred income tax assets and liabilities are also impacted by expectations about future operating results and the timing of reversal of temporary differences as well as possible audits of tax filings by regulatory agencies. Changes or differences in these estimates or assumptions may result in changes to the current and deferred tax assets and liabilities on the consolidated statements of financial position and a charge to or recovery of income tax expense.
Page | 10 |
|
MANAGEMENT’S
DISCUSSION AND ANALYSIS
June 30, 2020 and 2019 (Dollar amounts expressed in thousands of Canadian Dollars) |
Acquisition accounting
Accounting for business combinations requires the allocation of the Company’s purchase price to the various assets and liabilities of the acquired business at their respective fair values. The Company uses all available information to make these fair value determinations. In some instances, assumptions with respect to the timing and amount of future revenues and expenses associated with an asset or group of assets may be used to determine fair value. Actual timing and amount of net cash flows from revenues and expenses related to that asset over time may differ materially from those initial estimates, and if the timing is delayed significantly or if the net cash flows decline significantly, the asset could become impaired.
Discontinued operations
An operation is qualified as discontinued when it represents a separate major line of business and has been sold, or when the criteria for classification as an asset held for distribution have been met.
Discontinued operations are presented on the statement of income (loss) and comprehensive income (loss) for the periods reported, comprising the earnings after tax of discontinued operations until divestiture and the gain or loss after tax on sale or fair value measurement, less costs to sell.
Significant accounting judgments
The following are the critical judgments, apart from those involving estimations, that have been made in the process of applying the Company's accounting policies and that have the most significant effect on the amounts recognized in the interim condensed consolidated financial statements.
Functional currency
Management has exercised judgment in selecting the functional currency of each of the entities that it consolidates based on the primary economic environment in which the entity operates and in reference to the various indicators including the currency that primarily influences or determines the selling prices of goods and services and the cost of production, including labor, material and other costs and the currency whose competitive forces and regulations mainly determine selling prices. The interim condensed consolidated financial statements of the Company are presented in Canadian dollars, which is the parent company’s presentation currency but which differs from its functional currency, the US dollar, which was determined using managements assumption that the primary economic environment from which it will derive its revenues and the expenses incurred to generate those revenues is the US.
Segment reporting
Management has assessed the information that is provided to the chief operating decision maker and how the business is monitored and has exercised judgment in determining that there is only one operating segment.
Asset impairment and cash generating units
For purposes of the asset impairment testing, the Company identifies cash generating units as the smallest identifiable groups of assets that generate independent cash inflows. Impairment testing is performed on these groups of assets on an annual basis or when events or circumstances indicate that the cash generating unit may become impaired considering the assessed and projected recoverable values of the cash generating unit. The Company has elected to perform the annual impairment testing in the fourth quarter.
Valuation of derivative instruments
Management has exercised judgment in the determination of the fair value of the derivative instruments. Estimating fair value for the derivatives requires determining the most appropriate valuation model, which is dependent on the terms and conditions of the instrument. This estimate also requires the judgment in the determination of the most appropriate inputs to the valuation model including the expected life of the option or warrant, volatility and dividend yield and making assumptions about them.
Recognition of leases
Management has exercised judgment in the determination of whether a contract to rent equipment represents a financing lease. Using historical returns and other operational data management has determined that in cases where the Company is the lessor, no rental agreements represent financing leases.
Page | 11 |
|
MANAGEMENT’S
DISCUSSION AND ANALYSIS
June 30, 2020 and 2019 (Dollar amounts expressed in thousands of Canadian Dollars) |
Business Acquisitions
On October 31, 2018, the Company, through one of its indirect wholly owned subsidiaries, entered into a purchase agreement to acquire 100% of the shares of Central Oxygen Inc., an Indiana company. Total consideration was $395,000 in cash and stock.
On October 31, 2018, the Company, through one of its indirect wholly owned subsidiaries, entered into a purchase agreement to acquire 100% of the shares of Riverside Medical Inc., a Tennessee company. Total consideration was $131,000 in cash.
Effective October 1, 2019, the Company, through one of its indirect wholly owned subsidiaries, entered into a purchase agreement to acquire 100% of the shares of Cooley Medical Equipment, Inc., a Kentucky company, Total consideration was $3,321,000, of which $3,089,000 was paid in cash at closing, and the balance of $232,000 to be paid on the 18-month anniversary of the acquisition.
Effective December 1, 2019, the Company, through one of its indirect wholly owned subsidiaries, entered into a purchase agreement to acquire 100% of the shares of Acadia Medical Supply, Inc., a Maine company. Total consideration was $1,861,000, of which $1,334,000 was paid in cash at closing, and the balance of $527,000 to be paid on the one- and two-year anniversaries of the acquisition.
FINANCIAL INSTRUMENTS AND RISK MANAGEMENT
Financial instrument risk exposure
The Company’ s activities expose it to a variety of financial risks: market risk (including price risk, currency risk and interest rate risk), credit risk and liquidity risk. These risks arise from the normal course of operations and all transactions are undertaken to support the Company’ s ability to continue as a going concern. Risk management is carried out by management under policies approved by the Board of Directors. Management identifies and evaluates the financial risks in co-operation with the Company’s operating units. The Company’s overall risk management program seeks to minimize potential adverse effects on the Company’s financial performance.
Credit risk
Credit risk is the risk that one party to a financial instrument will fail to discharge an obligation and cause the other party to incur a financial loss. Financial instruments that potentially subject the Company to credit risk are primarily cash and accounts receivable. Each subsidiary places its cash with one major financial institution. At times, the cash in the financial institution is temporarily in excess of the amount insured by the Federal Deposit Insurance Corporation. Substantially all accounts receivable are due under fee-for-service contracts from third party payors, such as insurance companies and government-sponsored healthcare programs, directly from patients or for rebates due from manufacturers. Receivables generally are collected within industry norms for third-party payors and from manufacturers. The Company continuously monitors collections from its clients and maintains an allowance for bad debts based upon any specific payor collection issues that are identified and historical experience.
Currency risk
Currency risk is the risk that the Company will be subject to foreign currency fluctuations in satisfying obligations related to its foreign activities.
The Company realizes virtually all of its sales and makes a significant amount of its purchases in US dollars. Consequently, assets and liabilities are exposed to foreign exchange fluctuations.
The Company monitors and forecasts the values of net foreign currency cash flow and statement of financial position exposures and from time to time could authorize the use of derivative financial instruments such as forward foreign exchange contracts to economically hedge a portion of foreign currency fluctuations.
Based on the above net exposure at June 30, 2020, a 10% depreciation or appreciation of the US dollar against the Canadian dollar would not result in a significant effect in net loss. The Company has not employed any currency hedging programs during the periods ended June 30, 2020 or 2019.
Liquidity risk
Liquidity risk is the risk that the Company will not be able to meet its financial obligations as they become due. The Company’s approach in managing liquidity is to ensure, to the extent possible, that it will have sufficient liquidity to meet its liabilities when due, under both normal conditions, by continuously monitoring actual and budgeted cash flows.
As of June 30, 2020, the Company faces no material liquidity risk and can meet all its current financial obligations as they become due and payable. The Company has $29,769,000 of liabilities that are due within one year. The Company has $66,867,000 of current assets to meet those obligations.
Page | 12 |
|
MANAGEMENT’S
DISCUSSION AND ANALYSIS
June 30, 2020 and 2019 (Dollar amounts expressed in thousands of Canadian Dollars) |
Interest rate risk
Interest rate risk is the risk that the future cash flows of a financial instrument will fluctuate because of changes in market interest rates. Interest rate risk is limited to potential decreases on the interest rate offered on cash and cash equivalents held with Chartered Canadian and registered US financial institutions. The Company considers this risk to be immaterial. The interest on the convertible notes is not subject to cash flow interest rate risk as these instruments bear interest at fixed rates.
RISK FACTORS
While it is impossible to identify all such risk factors, factors that could cause actual results to differ materially from those estimated by us include:
Market Price of the Company Shares
The Company Shares are listed and posted for trading on the TSX Venture Exchange. Securities of small-cap and healthcare companies have experienced substantial volatility in the past, often based on factors unrelated to the financial performance or prospects of the companies involved. These factors include macroeconomic developments in North America and globally, and market perceptions of the attractiveness of particular industries. The price of the Company Shares is also likely to be significantly affected by short-term changes in cost of goods, or in financial condition or results of operations. Other factors unrelated to the performance of the Company that may have an effect on the price of the Company Shares include the following: the extent of analytical coverage available to investors concerning the business of the Company may be limited if investment banks with research capabilities do not follow the Company securities; lessening in trading volume and general market interest in the Company’s securities may affect an investor’s ability to trade significant numbers of the Company Shares; the size of the Company’s public float may limit the ability of some institutions to invest in the Company’s securities; and a substantial decline in the price of the Company Shares that persists for a significant period of time could cause the Company’s securities, if listed on an exchange, to be delisted from such exchange, further reducing market liquidity.
As a result of any of these factors, the market price of the Company Shares at any given point in time may not accurately reflect the long-term value of the Company. Securities class-action litigation often has been brought against companies following periods of volatility in the market price of their securities. The Company may in the future be the target of similar litigation. Securities litigation could result in substantial costs and damages and divert management’s attention and resources.
Dilution
The Company will require additional funds in respect of the further development of the company through acquisition. If the Company raises funds by issuing additional equity securities, such financing will dilute the equity interests of its shareholders.
Future Sales of Shares by Existing Shareholders
Sales of the Company Shares in the public markets, or the potential for such sales, could decrease the trading price of the Company Shares and could impair The Company’s ability to raise capital through future sales of the Company Shares. The Company may from time to time have previously issued securities at an effective price per share which will be lower than the market price of the Company Shares. Accordingly, certain shareholders of The Company may have an investment profit in the Company Shares that they may seek to liquidate.
Limited History of Operations
The Company has a limited history of operations. There can be no assurance that the business of the Company and/or its subsidiaries will be successful and generate, or maintain, any profit.
Reimbursement Rates May Decline / Competitive Bid
Reimbursement for services to be provided by the Company come primarily from Medicare and private health insurance companies. The reimbursement rates offered are outside the control of the Company. Reimbursement rates for much of the US health care market have been subject to continual reductions as health insurers and governmental entities attempt to control health care costs. The extent and timing of any reduction in reimbursement rates cannot be predicted by the Company.
Specifically, the Centers for Medicare & Medicaid Services (“CMS”) oversees a competitive bidding program covering durable medical equipment (“DME”), the process in which a Medicare supplier provides DME products to Medicare beneficiaries. Pursuant to the CMS, beginning in 2021, a new competitive bidding process known as Round 2021 will be launched by the CMS, covering contracts running from January 1, 2021 to December 31, 2023. It is possible that the Company may not be selected in some or all the Competitive Bidding Area (“CBA”) that is has bid for. It is also possible that the Company may not be selected for some or all of the product categories for which it has bid. Non-selection for CBA and/or product category may result in loss of revenue and referral sources.
Page | 13 |
|
MANAGEMENT’S
DISCUSSION AND ANALYSIS
June 30, 2020 and 2019 (Dollar amounts expressed in thousands of Canadian Dollars) |
Reductions in reimbursement rates can have a material impact on the profitability of the Company’s operations. A reduction in reimbursement may be unrelated to any concurrent decline in the cost of operations, thereby resulting in reduced profitability. The Company’s costs of operations could increase, but the cost increases may not be passed on to customers because reimbursement rates are set without regard to the cost of service.
Dependence Upon Relationships With Key Suppliers
There are few manufacturers of equipment for certain of the Company’s products. This presents risks that suppliers may not be able to provide equipment to satisfy demand. Demand may outstrip supply, leading to equipment shortages. Conversely, incorrect demand forecasting could lead to excess inventory. If the Company fails to achieve certain volume of sales, prices of inventory may increase. The industry is subject to a high level of regulatory scrutiny, and government or manufacturer recalls could adversely affect the Company’s ability to achieve revenue targets. Inadequate supply could impair the Company’s ability to attract new business and could create upward pricing pressure on equipment and supplies, adversely affecting margins for the Company.
Reliance Upon Few Payors
The Company will earn revenues by seeking reimbursement from Medicare and private health insurance companies, with the Medicare program of the US government being the primary entity making payments. If the Medicare program were to slow payments of receivables for any reason, the Company would be adversely impacted. In addition, both governmental and private health insurance companies may seek ways to avoid or delay reimbursement, which could adversely affect cash flow and revenues for the Company.
Government Regulation
Some operations of the Company will require certain licenses and permits from the authorities in the United States. The ability of the Company and its subsidiaries to obtain, sustain, or renew any such licenses and permits on acceptable terms is subject to changes in regulations and policies and to the discretion of the applicable authorities or other governmental agencies. The ability of the Company to collect certain revenues in the future will depend on the Company receiving approval of an independent diagnostic testing facility and entering into an agreement with Medicare. There is no guarantee that the Company will meet these conditions. The Company will be subject to regulation from United States federal and state authorities. Regulatory action could disrupt its ability to provide services. Such regulatory action could come in the form of actions against manufacturers, unrelated to the Company’s conduct, or actions based upon the Company’s operation. Regulatory action could prevent or delay reimbursement for certain services.
There could also be legislative action that could adversely affect the Company’s business model, including, without limitation: a decision by the United States government to become the exclusive provider of health care services at some time in the future; changes in United States federal or state laws, rules, and regulations, including those governing the corporate practice of medicine, and fee splitting; and changes in the United States Anti-Kickback Statute and Stark Law and/or similar state laws, rules, and regulations. Conversely, budgetary problems in the United States could lead to reduced funding, substantial modification or elimination of Medicare programs, which would end reimbursement for many patients. There can be no assurance that new rules and regulations will not be enacted or that existing rules and regulations will not be applied in a manner which could limit or curtail the business of the Company. Amendments to current laws and regulations could have a substantial adverse impact on the Company.
Highly Competitive Market
The Company will participate in a highly competitive market, which may become more competitive as new players enter. Certain competitors will be subsidiaries or divisions of larger, much better capitalized companies. Certain competitors will have vertically integrated manufacturing and services sectors of the market. The Company may have less capital and may encounter greater operational challenges in serving the market. Better capitalized competitors may also be expected to borrow money or raise debt to purchase equipment more easily than the Company.
Foreign Subsidiaries
The Company plans to conduct all its operations through respective United States subsidiaries. Therefore, to the extent of these holdings, the Company (directly and indirectly) will be dependent on the cash flows of these subsidiaries to meet its obligations. The ability of such subsidiaries to make payments to their parent companies may be constrained by the following factors: the level of taxation, particularly corporate profits and withholding taxes, in the jurisdiction in which each subsidiary operates; and the introduction of exchange controls or repatriation restrictions or the availability of hard currency to be repatriated.
Page | 14 |
|
MANAGEMENT’S
DISCUSSION AND ANALYSIS
June 30, 2020 and 2019 (Dollar amounts expressed in thousands of Canadian Dollars) |
Attraction and Retention of Key Personnel Including Directors
The Company will have a small management team and the loss of a key individual or inability to attract suitably qualified staff could have a material adverse impact on the business of The Company. The Company may also encounter difficulties in obtaining and maintaining suitably qualified staff. The success of The Company depends on the ability of management to interpret market data correctly and to interpret and respond to economic, market and other conditions to locate and adopt appropriate opportunities. No assurance can be given that individuals with the required skills will continue employment with The Company or that replacement personnel with comparable skills can be found. The Company will be dependent on the services of key executives, including the directors of The Company and a small number of highly skilled and experienced executives and personnel. Due to the relatively small size of The Company, the loss of these persons or The Company’s inability to attract and retain additional highly skilled employees may adversely affect its business and future operations.
Dividends
The Company currently intends to retain future earnings to finance the operation, development and expansion of its business. The Company does not anticipate paying cash dividends on the Company Shares in the foreseeable future. Payment of future cash dividends, if any, will be at the discretion of the Company Board and will depend on the Company’s financial condition, results of operations, contractual restrictions, capital requirements, business prospects and other factors that the Company Board may consider relevant. Accordingly, investors will only see a return on their investment if the value of the Company Shares appreciates.
Discretion in the Use of Available Funds
Management will have broad discretion concerning the use of the available funds of the Company as well as the timing of their expenditures. As a result, shareholders and investors will be relying on the judgment of management of the Company on completion of the Arrangement for the application of the available funds of the Company (see “Available Funds and Principal Purposes” above). Management may use the available funds in ways that an investor may not consider desirable. The results and the effectiveness of the application of the available funds are uncertain. If the available funds are not applied effectively, the Company’s results of operations may suffer.
Potential Conflicts of Interest
Some of the directors and officers of the Company are engaged and will continue to be engaged as directors and officers of other companies in the search for additional business opportunities on behalf of such other corporations, and situations may arise where these directors and officers will be in direct competition with the Company. Some of the directors and officers of the Company are or may become directors or officers of other companies engaged in other business ventures.
Conflicts of interest, if any, which arise may be subject to and be governed by procedures prescribed by the Business Corporations Act (British Columbia) which require a director or officer of a corporation who is a party to or is a director or an officer of or has a material interest in any person who is a party to a material contract or proposed material contract with The Company to disclose his interest and to refrain from voting on any matter in respect of such contract unless otherwise permitted under the Business Corporations Act (British Columbia). Any decision made by any of such directors and officers involving the Company should be made in accordance with their duties and obligations to deal fairly and in good faith with a view to the best interests of the Company and its shareholders.
Insurance and Uninsured Risks
The Company’s business will continue to be subject to several risks and hazards generally, including general liability. Such occurrences could result in damage to property, inventory, facilities, personal injury or death, damage to the properties of the Company, or the properties of others, monetary losses and possible legal liability. The Company may be subject to product liability and medical malpractice claims, which may adversely affect its operations. The Company’s industry is highly regulated, and the Company may be subject to regulatory scrutiny for violations of regulations and laws. The Company could be adversely affected by the time and cost involved with regulatory investigations even if it has operated in compliance with all laws. Investigations could also adversely affect the timely payment of receivables.
Although the Company will maintain insurance to protect against certain risks in such amounts as it considers to be reasonable, its insurance will not cover all the potential risks associated with its operations. The Company may also be unable to maintain insurance to cover these risks at economically feasible premiums. Insurance coverage may not continue to be available or may not be adequate to cover any resulting liability. The Company might also become subject to liability which may not be insured against or which the Company may elect not to insure against because of premium costs or other reasons. Losses from these events may cause the Company to incur significant costs that could have a material adverse effect upon its financial performance and results of operations.
Page | 15 |
|
MANAGEMENT’S
DISCUSSION AND ANALYSIS
June 30, 2020 and 2019 (Dollar amounts expressed in thousands of Canadian Dollars) |
Additional Capital
The development and the business (including acquisitions) of the Company may require additional financing, which may involve high transaction costs, dilution to shareholders, high interest rates or unfavorable terms and conditions. Failure to obtain sufficient financing may result in the delay or indefinite postponement of its business plans. As the Company will likely be unable to obtain traditional debt financing until it has a profitable and longer operating history, the initial primary source of funding available to the Company will consist of equity financing. There can be no assurance that additional capital or other types of financing will be available if needed or that, if available, the terms of such financing will be favorable to the Company.
Loss of Foreign Private Issuer Status
The Company may lose its foreign private issuer status in the future, which could result in significant additional costs and expenses. As a foreign private issuer, as defined in Rule 3b-4 under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), the Company is currently exempt from certain of the provisions of the U.S. federal securities laws. For example, an issuer with total assets in excess of US$10 million and whose outstanding equity securities are held by 2,000 or more persons, or 500 or more persons who are not “accredited investors”, must register such securities as a class under the Exchange Act. However, as a foreign private issuer subject to Canadian continuous disclosure requirements, the Company may claim the exemption from registration under the Exchange Act provided by Rule threeg3-2(b) thereunder, even if these thresholds are exceeded. To be considered a foreign private issuer, The Company must satisfy a United States shareholder test (not more than 50% of the voting securities of a company must be held by residents of the United States) if any of the following disqualifying conditions apply: (i) the majority of the Company’s executive officers or directors are United States citizens or residents; (ii) more than 50 percent of The Company’s assets are located in the United States; or (iii) The Company’s business is administered principally in the United States. Based on information available as at the date hereof, approximately 26.7% of the Company’s outstanding voting securities are anticipated to be directly or indirectly held of record by residents of the United States. If the Company loses its status as a foreign private issuer, these regulations could apply and it could also be required to commence reporting on forms required of U.S. domestic companies, such as Forms 10-K, 10-Q and 8-K. It could also become subject to U.S. proxy rules, and certain holders of its equity securities could become subject to the insider reporting and “short swing” profit rules under Section 16 of the Exchange Act. In addition, any securities issued by the Company if it loses foreign private issuer status would become subject to certain rules and restrictions under the Securities Act of 1933, as amended, even if they are issued or resold outside the United States. Compliance with the additional disclosure, compliance and timing requirements under these securities laws would likely result in increased expenses and would require the Company’s management to devote substantial time and resources to comply with new regulatory requirements.
United States Operations and Exchange Rate Fluctuations
All the Company’s revenue generating operations will occur in the United States. The Company will be subject to a number of risks associated with its operations that may increase liability and costs and require significant management attention. These risks include:
· | compliance with laws of the United States that will apply to the Company’s United States operations, including lawful access, privacy laws and anti-corruption laws; | |
· | instability in economic or political conditions, including inflation, recession and political uncertainty; | |
· | potential adverse tax consequences; and | |
· | litigation in United States courts. |
In addition, the Company will be exposed to foreign exchange risk as a result of substantially all its revenue generating operations taking place in the United States and thus, revenues and expenses being earned and paid in United States dollars while the Company reports its financial statements in Canadian dollars. If the Canadian dollar appreciates relative to the United States dollar, the Company’s Canadian dollar expenses and revenues will decrease when translated from United States dollars for financial reporting purposes. Conversely, if the Canadian dollar depreciates relative to the United States dollar, the Company’s Canadian dollar expenses and revenues will increase when translated from United States dollars for financial reporting purposes. In addition, exchange rate fluctuations may affect the costs that The Company incurs in its operations. The appreciation of non-United States dollar currencies against the United States dollar can increase the cost of operations in United States dollar terms. Foreign exchange rate fluctuations may materially affect the Company’s financial condition and results of operations in future periods.
The Company will continue to translate the assets and liabilities of its United States dollar functional currency subsidiaries into Canadian dollars using exchange rates in effect at the end of each period. Revenue and expenses for these subsidiaries are translated using average exchange rates that approximate those in effect during the period. The Company will continue to maintain cash balances in both United States and Canadian dollars, but management anticipates that it will not purchase any securities or financial instruments to speculate on or hedge against a rise or fall in the value of the United States dollar.
Page | 16 |
|
MANAGEMENT’S
DISCUSSION AND ANALYSIS
June 30, 2020 and 2019 (Dollar amounts expressed in thousands of Canadian Dollars) |
COVID-19 Pandemic
On March 11, 2020, the World Health Organization declared the outbreak of a novel strain of coronavirus (“COVID-19”) a global pandemic. In response to the outbreak, governmental authorities in the United States and internationally have introduced various recommendations and measures to try to limit the pandemic, including travel restrictions, border closures, non-essential business closures, quarantines, self-isolations, shelters-in-place, and social distancing. The COVID-19 outbreak and the response of governmental authorities to try to limit it are having a significant impact on the private sector and individuals, including unprecedented business, employment, and economic disruptions.
Although the Company has taken steps to mitigate the impact of COVID-19, the continued presence and spread of COVID-19 nationally and globally could have a material adverse impact on the Company’s business, operations, and financial results and position, including through employee attrition, disruptions to the Company’s supply chains and sales channels, restrictions of operations at our retail stores, changes in the number of Americans with health insurance resulting in a change in demand for the Company’s products, as well as a deterioration of general economic conditions including a possible national or global recession. Due to the speed with which the COVID-19 situation is developing and the uncertainty of its magnitude, outcome, and duration, it is not possible to estimate its impact on the Company’s business, operations, financial results and position or prospects at this time.
The Company continues to monitor the situation and work with its stakeholders (including customers, employees, and suppliers) in order to assess further possible implications to its business, supply chain, and customers, and, where practicable, mitigate adverse consequences and responsibly address this global pandemic.
The actual and threatened spread of COVID-19 globally could adversely affect global economies and financial markets, resulting in a prolonged economic downturn and a decline in the value of the Company’s share price. The extent to which COVID-19 (or any other disease, epidemic, or pandemic) impacts business activity or financial results, and the duration of any such negative impact, will depend on future developments, which are highly uncertain and cannot be predicted, including new information which may emerge concerning COVID-19 and the actions required to contain or treat its impact, among others.
Page | 17 |
Exhibit 99.58
Protech Home Medical Corp.
Condensed Consolidated Interim Financial Statements
2020 Third Quarter
For the Three and Nine Months Ended
June 30, 2020
and 2019
(UNAUDITED)
(Expressed in Canadian dollars)
TABLE OF CONTENTS
Condensed Consolidated Interim Statements of Financial Position | Page 3 |
Condensed Consolidated Interim Statements of Income (Loss) and Comprehensive Income (Loss) | Page 4 |
Condensed Consolidated Interim Statements of Changes in Shareholders’ Equity | Page 5 |
Condensed Consolidated Interim Statements of Cash Flows | Page 6 |
Notes to the Condensed Consolidated interim Financial Statements | Pages 7-18 |
NOTICE OF NO AUDITOR REVIEW OF INTERIM FINANCIAL STATEMENTS
Under National Instrument 51-102, Part 4, subsection 4.3 (3) (a), if an auditor has not performed a review of these condensed consolidated interim financial statements, they must be accompanied by a notice indicating that the financial statements have not been reviewed by an auditor.
The accompanying unaudited condensed consolidated interim financial statements of the Protech Home Medical Corp (the “Company”) have been prepared by and are the responsibility of the Company’s management and approved by the Board of Directors of the Company.
The Company’s independent auditor has not performed a review of these unaudited condensed consolidated interim financial statements in accordance with standards established by the Canadian Institute of Chartered Professional Accountants for a review of interim financial statements by an entity’s auditor.
PROTECH HOME MEDICAL CORP.
CONDENSED CONSOLIDATED INTERIM STATEMENTS OF FINANCIAL POSITION
(UNAUDITED)
(Expressed in thousands of Canadian Dollars, except per share amounts) |
Notes |
As at
June 30, 2020 |
As at
September 30, 2019 |
||||||||||
ASSETS | ||||||||||||
Current Assets | ||||||||||||
Cash | $ | 44,678 | $ | 12,855 | ||||||||
Accounts receivable, net | 12,572 | 12,390 | ||||||||||
Inventory, net | 4 | 8,354 | 4,738 | |||||||||
Prepaid expenses and other current assets | 1,263 | 800 | ||||||||||
Total current assets | 66,867 | 30,783 | ||||||||||
Long-term assets | ||||||||||||
Property and equipment and right of use assets, net | 5 | 22,272 | 19,496 | |||||||||
Goodwill | 6 | 5,505 | 1,881 | |||||||||
Intangible assets, net | 6 | 2,417 | 2,911 | |||||||||
Deposits | 109 | 94 | ||||||||||
Total long-term assets | 30,303 | 24,382 | ||||||||||
TOTAL ASSETS | $ | 97,170 | $ | 55,165 | ||||||||
LIABILITIES | ||||||||||||
Current Liabilities | ||||||||||||
Accounts payable | $ | 8,710 | $ | 8,122 | ||||||||
Accrued and other current liabilities | 3,871 | 2,319 | ||||||||||
Deferred income | 7 | 7,596 | - | |||||||||
Current portion of lease liabilities | 8 | 9,883 | 8,528 | |||||||||
Total current liabilities | 30,060 | 18,969 | ||||||||||
Long-Term Liabilities | ||||||||||||
Debentures | 8 | 15,461 | 13,966 | |||||||||
Lease liabilities | 8 | 5,597 | 3,081 | |||||||||
Other long-term liabilities | 249 | - | ||||||||||
Total long-term liabilities | 21,307 | 17,047 | ||||||||||
TOTAL LIABILITIES | 51,367 | 36,016 | ||||||||||
SHAREHOLDERS' EQUITY | ||||||||||||
Share capital | 9 | $ | 224,965 | 198,196 | ||||||||
Contributed surplus | 9 | 24,393 | 21,390 | |||||||||
Accumulated deficit | (217,288 | ) | (213,440 | ) | ||||||||
Accumulated other comprehensive income | 13,733 | 13,003 | ||||||||||
TOTAL SHAREHOLDERS' EQUITY | 45,803 | 19,149 | ||||||||||
TOTAL LIABILITIES AND SHAREHOLDERS' EQUITY | $ | 97,170 | $ | 55,165 |
APPROVED ON BEHALF OF THE BOARD:
signed“Donald Ewing” | signed “Mark Greenberg” |
The accompanying notes are an integral part of these condensed consolidated interim financial statements.
PROTECH HOME MEDICAL CORP.
CONDENSED CONSOLIDATED INTERIM STATEMENTS OF INCOME (LOSS) AND
COMPREHENSIVE INCOME (LOSS)
(UNAUDITED)
(Expressed in thousands of Canadian Dollars, except per share amounts) |
Notes |
Three months
ended June 30, 2020 |
Three Months
ended June 30, 2019 |
Nine Months
ended June 30, 2020 |
Nine Months
ended June 30, 2019 |
||||||||||||||||
Revenue | ||||||||||||||||||||
Sales of medical equipment and supplies | $ | 10,600 | $ | 7,777 | $ | 30,567 | $ | 26,471 | ||||||||||||
Rentals of medical equipment | 15,269 | 12,387 | 42,172 | 35,026 | ||||||||||||||||
Total revenue | 25,869 | 20,164 | 72,739 | 61,497 | ||||||||||||||||
Cost of revenue | 7,437 | 6,068 | 19,968 | 18,380 | ||||||||||||||||
Gross profit | 18,432 | 14,096 | 52,771 | 43,117 | ||||||||||||||||
Selling, general, and administrative | 11 | 12,892 | 10,372 | 38,184 | 31,695 | |||||||||||||||
Depreciation | 5 | 5,016 | 3,224 | 14,062 | 9,244 | |||||||||||||||
Amortization of intangible assets | 6 | 172 | 153 | 578 | 455 | |||||||||||||||
Stock-based compensation | 9 | 73 | 446 | 207 | 1,337 | |||||||||||||||
Loss from cyber incident | - | 9,184 | - | 9,184 | ||||||||||||||||
Acquisition-related costs to shareholder | - | 1,401 | - | 1,401 | ||||||||||||||||
Loss (gain) on sale of property and equipment | (15 | ) | (39 | ) | (106 | ) | 124 | |||||||||||||
Other expense (income) | 11 | - | (190 | ) | 6 | |||||||||||||||
Operating income (loss) from continuing operations | 283 | (10,645 | ) | 36 | (10,329 | ) | ||||||||||||||
Financing expenses | ||||||||||||||||||||
Interest expense on debentures | 300 | 430 | 900 | 753 | ||||||||||||||||
Other interest expense | 351 | 171 | 975 | 489 | ||||||||||||||||
Accretion expense | - | 343 | - | 863 | ||||||||||||||||
Loss on extinguishment of debentures | - | 1,107 | - | 1,107 | ||||||||||||||||
Change in fair value of debentures and derivative | 8 | 3,314 | (161 | ) | 1,500 | (133 | ) | |||||||||||||
Income (loss) before taxes from continuing operations | (3,682 | ) | (12,535 | ) | (3,339 | ) | (13,408 | ) | ||||||||||||
Provision for income taxes | 49 | 29 | 93 | 134 | ||||||||||||||||
Net income (loss) from continuing operations | (3,731 | ) | (12,564 | ) | (3,432 | ) | (13,542 | ) | ||||||||||||
Discontinued operations: | ||||||||||||||||||||
Net income (loss) from discontinued operations | 13 | - | 25 | (416 | ) | 607 | ||||||||||||||
Net income (loss) | $ | (3,731 | ) | $ | (12,539 | ) | $ | (3,848 | ) | $ | (12,935 | ) | ||||||||
Other comprehensive income (loss) | ||||||||||||||||||||
Cumulative translation adjustment | (1,300 | ) | (708 | ) | 730 | 253 | ||||||||||||||
Comprehensive income (loss) | $ | (5,031 | ) | $ | (13,247 | ) | $ | (3,118 | ) | $ | (12,682 | ) | ||||||||
Net income (loss) per share | ||||||||||||||||||||
Basic | 12 | $ | (0.04 | ) | $ | (0.15 | ) | $ | (0.05 | ) | $ | (0.16 | ) | |||||||
Diluted | 12 | (0.04 | ) | (0.15 | ) | (0.05 | ) | (0.16 | ) | |||||||||||
Weighted average number of common shares outstanding: | ||||||||||||||||||||
Basic | 84,261 | 83,529 | 83,834 | 82,627 | ||||||||||||||||
Diluted | 84,261 | 83,529 | 83,834 | 82,627 |
The accompanying notes are an integral part of these condensed consolidated interim financial statements.
Page | 4
PROTECH HOME MEDICAL CORP.
CONDENSED CONSOLIDATED INTERIM STATEMENTS OF CHANGES IN SHAREHOLDERS’
EQUITY
(UNAUDITED)
(Expressed in thousands of Canadian Dollars) |
Number of Shares (000’s) |
Capital
stock |
Contributed
surplus |
Accumulated
Deficit |
Accumulated
other comprehensive income |
||||||||||||||||||||
Balance September 30, 2018 | 75,819 | $ | 193,951 | $ | 19,041 | $ | (206,054 | ) | $ | 12,332 | $ | 19,270 | ||||||||||||
Net income (loss) | - | - | - | (12,935 | ) | - | (12,935 | ) | ||||||||||||||||
Cumulative translation adjustment | - | - | - | - | 253 | 253 | ||||||||||||||||||
Stock-based compensation (Note 9) | - | - | 1,337 | - | - | 1,337 | ||||||||||||||||||
Stock issued with acquisition (Note 3) | 227 | 164 | - | - | - | 164 | ||||||||||||||||||
Proceeds from issuance of shares (Note 9) | 7,483 | 3,483 | 132 | - | - | 3,605 | ||||||||||||||||||
Compensation options - debentures (Note 8) | - | (175 | ) | 175 | - | - | - | |||||||||||||||||
Balance June 30, 2019 | 83,529 | $ | 197,423 | $ | 20,685 | $ | (218,989 | ) | $ | 12,585 | $ | 11,694 | ||||||||||||
Balance September 30, 2019 | 83,589 | $ | 198,196 | $ | 21,390 | $ | (213,440 | ) | $ | 13,003 | $ | 19,149 | ||||||||||||
Net loss | - | - | - | (3,848 | ) | - | (3,848 | ) | ||||||||||||||||
Cumulative translation adjustment | - | - | - | - | 730 | 730 | ||||||||||||||||||
Stock-based compensation (Note 9) | 60 | 35 | 172 | - | - | 207 | ||||||||||||||||||
Proceeds from issuance of shares (Note 9) | 27,679 | 26,454 | 2,831 | - | - | 29,285 | ||||||||||||||||||
Exercise of stock options (Note 9) | 517 | 280 | - | - | 280 | |||||||||||||||||||
Balance June 30, 2020 | 111,845 | $ | 224.965 | $ | 24,393 | $ | (217,288 | ) | $ | 13,733 | $ | 45,803 |
The accompanying notes are an integral part of these condensed consolidated interim financial statements.
Page | 5
PROTECH HOME MEDICAL CORP.
CONDENSED CONSOLIDATED INTERIM STATEMENTS OF CASH FLOWS
(UNAUDITED)
(Expressed in thousands of Canadian Dollars)
Operating activities | Notes |
Nine months ended
June 30, 2020 |
Nine months ended
June 30, 2019 |
|||||||||
Net income from continuing operations | $ | (3,432 | ) | $ | (13,542 | ) | ||||||
Net income from discontinued operations | 13 | (416 | ) | 607 | ||||||||
Adjustments to reconcile net income to net cash provided by operating activities: | ||||||||||||
Depreciation and amortization | 14,640 | 9,699 | ||||||||||
Depreciation and amortization – discontinued operations | 13 | - | 342 | |||||||||
Accretion expense | - | 863 | ||||||||||
Loss on extinguishment of debentures | - | 1,107 | ||||||||||
Change in fair value of debentures and derivative | 7 | 1,500 | (133 | ) | ||||||||
(Gain)/loss on disposal of property and equipment | (106 | ) | 124 | |||||||||
Stock-based compensation | 8 | 207 | 1,337 | |||||||||
Bad debt expense | 10 | 6,528 | 4,233 | |||||||||
Bad debt expense – discontinued operations | - | 49 | ||||||||||
Change in Working Capital: | ||||||||||||
Net increase in accounts receivable, excluding bad debt expense | (5,630 | ) | (7,081 | ) | ||||||||
Net increase in inventory | (1,987 | ) | (318 | ) | ||||||||
Net increase in other current assets | (143 | ) | (156 | ) | ||||||||
Net increase in accounts payable, accrued liabilities, and deferred income | 8,191 | 1,146 | ||||||||||
Net cash flows provided by operating activities | 19,352 | (1,723 | ) | |||||||||
Investing activities | ||||||||||||
Purchases of property and equipment | (325 | ) | (933 | ) | ||||||||
Proceeds from sales of property and equipment | 299 | 57 | ||||||||||
Cash paid for acquisitions | 3 | (4,423 | ) | (526 | ) | |||||||
Net cash flow used in investing activities | (4,449 | ) | (1,402 | ) | ||||||||
Financing activities | ||||||||||||
Repayments of finance lease obligations | (12,693 | ) | (9,217 | ) | ||||||||
Proceeds from issuance of debenture | - | 13,959 | ||||||||||
Repayment of old debenture | - | (8,625 | ) | |||||||||
Cash paid on early extinguishment of debenture | - | (345 | ) | |||||||||
Proceeds from shareholder loan | - | 3,428 | ||||||||||
Proceeds from the exercise of options | 280 | - | ||||||||||
Proceeds from issuance of common shares | 29,285 | 3,604 | ||||||||||
Net cash flow provided by (used in) financing activities | 16,872 | 2,804 | ||||||||||
Net increase (decrease) in cash | 31,775 | (321 | ) | |||||||||
Effect of exchange rate changes on cash held in foreign currencies | 48 | 174 | ||||||||||
Cash, beginning of period | 12,855 | 4,331 | ||||||||||
Cash, end of period | $ | 44,678 | $ | 4,184 |
The accompanying notes are an integral part of these condensed consolidated interim financial statements.
Page | 6
PROTECH HOME MEDICAL CORP.
NOTES TO THE CONDENSED CONSOLIDATED
INTERIM FINANCIAL STATEMENTS
(UNAUDITED)
(Tabular dollar amounts expressed in thousands of Canadian Dollars, except per share amounts)
1. Nature of operations
Reporting entity
Protech Home Medical Corp. ("Protech" or the “Company”) was incorporated under the Business Corporations Act (Alberta) on March 5, 1993. On December 30, 2013, the Company was continued into British Columbia, Canada. The address of the registered office is 666 Burrard St, Vancouver, British Columbia, V6C 2Z7. The head office is located at 1019 Town Drive, Wilder, Kentucky, United States. The Company is a participating Medicare provider that provides i) nebulizers, oxygen concentrators, and CPAP and BiPAP units; ii) traditional and non-traditional durable medical respiratory equipment and services; and iii) non-invasive ventilation equipment, supplies and services. The Company has embarked on an acquisition strategy for additional revenue and profit growth. The Company’s shares are traded on the TSX Venture Exchange under the symbol PTQ. The stock is also traded on the OTCQX Best Market in the United States under the symbol PTQQF.
Share consolidation
Effective December 31, 2018, the Company consolidated its common shares on the basis of one (1) new post-consolidation common share for every five (5) pre-consolidation common shares. The consolidation affected shareholders uniformly, including holders of outstanding stock options, warrants, and other securities convertible or exercisable into common shares on the effective date.
Going concern
These consolidated financial statements have been prepared on a going concern basis. The application of the going concern basis of presentation assumes that the Company will continue its operations for the foreseeable future and be able to realize its assets and discharge its liabilities and commitments in the normal course of operation. If this assumption was not appropriate, adjustments to these condensed consolidated financial statements may be necessary.
COVID-19 Pandemic
On March 11, 2020, the World Health Organization declared the outbreak of a novel strain of coronavirus (“COVID-19”) a global pandemic. In response to the outbreak, government authorities in the United States and internationally have introduced various recommendations and measures to try to limit the pandemic, including travel restrictions, non-essential business closures, quarantines, and social distancing.
The Company is considered an essential business and, as such, has continued full operations throughout the pandemic. The Company’s operations continue to perform soundly, with demand remaining elevated and supply chain stability continuing through the third quarter and thereafter. In particular, the Company has experienced increased demand for respiratory equipment, such as ventilators, and oxygen concentrators, CPAP supplies, and, in the second half of the third quarter, sleep products.
See Note 7 for relief payments the Company received related to the U.S. Coronavirus Aid, Relief and Economic Security (“CARES”) Act.
2. Summary of significant accounting policies
Unreserved statement of compliance
These unaudited condensed consolidated interim financial statements have been prepared in accordance with International Accounting Standard (IAS) 34, Interim Financial Reporting using accounting policies consistent with International Financial Reporting Standards (IFRS) as issued by the International Accounting Standards Board. These condensed consolidated interim financial statements do not include all the disclosures required in annual consolidated financial statements and should be read in conjunction with the Company’s audited consolidated financial statements for the years ended September 30, 2019 and 2018.
Except as noted below, the Company has followed the same basis of presentation, accounting policies and method of computation for these condensed consolidated interim financial statements as disclosed in the annual audited consolidated financial statements for the years ended September 30, 2019 and 2018.
Page | 7
PROTECH HOME MEDICAL CORP.
NOTES TO THE CONDENSED CONSOLIDATED
INTERIM FINANCIAL STATEMENTS
(UNAUDITED)
(Tabular dollar amounts expressed in thousands of Canadian Dollars, except per share amounts)
These unaudited condensed consolidated interim financial statements, which are presented in Canadian dollars, have been prepared under the historical cost convention, as modified by the measurement at fair values of certain financial assets and financial liabilities.
New standards and interpretations adopted
IFRS 16, Leases
Effective October 1, 2019, the Company adopted IFRS 16, Leases. IFRS 16 eliminates the distinction between operating and finance leases from the perspective of the lessee. All contracts that meet the definition of a lease will be recorded in the statement of financial position with a “right of use” asset and a corresponding liability at the present value of the future lease payments using the lessee’s incremental borrowing rate of 8%.
The Company elected to adopt IFRS 16 using the modified retrospective approach. Under this approach, the Company will not restate its comparative figures, but will recognize the cumulative effect of adopting IFRS 16 as an adjustment to opening statement of financial position, with the recognition of $3,456,000 of right of use assets and finance lease obligations on October 1, 2019. On the condensed consolidated statement of income, the impact of the adoption of IFRS 16 is to increase depreciation expense and interest expense, and decrease selling, general, and administrative expenses.
The Company elected to apply the practical expedient to exclude recognition of right of use assets and lease liabilities for real estate, computer equipment, and office furniture leases under 12 months in duration or for which the lease term ends within 12 months of initial application for leases, and for low-value assets. The Company also elected to apply IFRS 16 only to the contracts that were previously identified as leases. Contracts that were not identified as leases under IAS 17 Leases will not be reassessed for whether a lease exists.
Lease expenses for short-term leases totaled $147,000 and $746,000 for the three and nine months ended June 30, 2020.
Reconciliation of lease liabilities pursuant to IFRS 16:
Operating lease commitments as at September 30, 2019 | $ | 4,360 | ||
Recognition exemption for short-term leases | (497 | ) | ||
Gross lease liabilities as at September 30, 2019 | 3,863 | |||
Amounts representing interest | (407 | ) | ||
Additional lease liabilities as a result of adoption of IFRS 16 | $ | 3,456 |
As of October 1, 2019, approximately $19,398,000 of monitoring equipment and $2,457,000 of vehicles were under lease liabilities. Functional currency
The consolidated financial statements of the Company are presented in Canadian dollars, which is the parent Company’s presentation currency but which differs from its functional currency, the US Dollar, which was determined using management’s judgment that the primary economic environment in which it will derive its revenue and expenses incurred to generate those revenues is the United States. Management has exercised judgment in selecting the functional currency of each of the entities that it consolidates based on the primary economic environment in which the entity operates and in reference to the various indicators including the currency that primarily influences or determines the selling prices of goods and services and the cost of production, including labor, material and other costs and the currency whose competitive forces and regulations mainly determine selling prices.
Business combinations
In accordance with IFRS 3 – Business Combination (“IFRS 3”), a transaction is recorded as a business combination if the significant assets, liabilities, or activities in addition to property and related mortgage debt assumed constitute a business. A business is defined as an integrated set of activities and assets, capable of being conducted and managed for the purpose of providing a return, lower costs, or other economic benefits. Where there are no such integrated activities, the transaction is treated as an asset acquisition. The estimation of the fair value of the assets and liabilities acquired in an acquisition is subject to judgement concerning estimating market values and predicting future events. These values are uncertain and can materially impact the carrying value of the acquired assets and the amount allocated to goodwill.
Page | 8
PROTECH HOME MEDICAL CORP.
NOTES TO THE CONDENSED CONSOLIDATED
INTERIM FINANCIAL STATEMENTS
(UNAUDITED)
(Tabular dollar amounts expressed in thousands of Canadian Dollars, except per share amounts)
Recognition and initial measurement
The Company recognizes financial assets when it becomes party to the contractual provisions of the instrument. Financial assets are measured initially at their fair value plus, in the case of financial assets not subsequently measured at fair value through profit or loss, transaction costs that are directly attributable to their acquisition. Transaction costs attributable to the acquisition of financial assets subsequently measured at fair value through profit or loss are expensed in the consolidated statement of income (loss) and comprehensive income (loss) when incurred.
3. Acquisition of businesses and purchase accounting
Acquisition of Cooley Medical Equipment, Inc. (Cooley)
Effective October 1, 2019, the Company, through one of its indirect wholly owned subsidiaries, entered into a purchase agreement to acquire the shares of Cooley Medical Equipment, Inc. (Cooley), a Kentucky company in the same industry as the Company. The purchase price was $3,321,000, of which $3,089,000 was paid in cash at closing, and the balance of $232,000 to be paid on the 18-month anniversary of the acquisition. The Company has determined that the transaction is an acquisition of a business under IFRS 3 and it has been accounted for by applying the acquisition method. The Company expensed $55,000 of legal expenses in conjunction with the acquisition.
The acquired business contributed revenue of approximately $6,800,000 and net loss of approximately ($200,000) for the nine months ended to June 30, 2020, primarily due to depreciation expense.
The fair value of the acquired assets is provisional pending final valuations of the assets and is as follows:
Cash | $ | 106 | ||
Accounts receivable | 801 | |||
Inventory | 818 | |||
Prepaid assets | 55 | |||
Property and equipment | 3,289 | |||
Goodwill | 1,742 | |||
Accounts payable and accrued liabilities | (1,477 | ) | ||
Lease liabilities | (2,013 | ) | ||
Net assets acquired | $ | 3,321 | ||
Cash paid at closing | $ | 3,089 | ||
Cash to be paid after closing | 232 | |||
Consideration paid or payable | $ | 3,321 |
The goodwill is attributable to expected synergies from the combining operations. None of the goodwill is expected to be deductible for tax purposes.
Acquisition of Acadia Medical Supply, Inc. (Acadia)
Effective December 1, 2019, the Company, through one of its indirect wholly owned subsidiaries, entered into a purchase agreement to acquire the shares of Acadia Medical Supply, Inc. (Acadia), a Maine company in the same industry as the Company. The purchase price was $1,861,000, of which $1,334,000 was paid in cash at closing, and the balance of $527,000 to be paid on the one- and two-year anniversaries of the acquisition. The Company has determined that the transaction is an acquisition of a business under IFRS 3 and it has been accounted for by applying the acquisition method. The Company expensed $29,000 of legal expenses in conjunction with the acquisition.
Pro forma nine-month revenues and net income for Acadia for the nine months ended June 30, 2020 were approximately $3,200,000 and $500,000, respectively. Of those amounts, revenues of approximately $2,700,000 and net income of approximately $400,000 contributed to the Company’s results for the period from December 1, 2019 through June 30, 2020.
Page | 9
PROTECH HOME MEDICAL CORP.
NOTES TO THE CONDENSED CONSOLIDATED
INTERIM FINANCIAL STATEMENTS
(UNAUDITED)
(Tabular dollar amounts expressed in thousands of Canadian Dollars, except per share amounts)
The fair value of the acquired assets is provisional pending final valuations of the assets and is as follows:
Cash | $ | 79 | ||
Accounts receivable | 139 | |||
Inventory | 350 | |||
Property and equipment | 330 | |||
Other assets | 10 | |||
Goodwill | 1,699 | |||
Accounts payable and accrued liabilities | (368 | ) | ||
Lease liabilities | (378 | ) | ||
Net assets acquired | $ | 1,861 | ||
Cash paid at closing | $ | 1,334 | ||
Cash to be paid after closing | 527 | |||
Consideration paid or payable | $ | 1,861 |
The goodwill is attributable to expected synergies from the combining operations. None of the goodwill is expected to be deductible for tax purposes.
Prior Periods
During the nine months ended June 30, 2019, the Company acquired two businesses. The details of these acquisitions were disclosed in Note 7 of the Company’s annual financial statements for the year ended September 30, 2019.
4. Inventory
As at June 30,
2020 |
As at September 30, 2019 |
|||||||
Serialized | $ | 2,051 | $ | 1,038 | ||||
Non-serialized | 6,303 | 3,700 | ||||||
Total inventory | $ | 8,354 | $ | 4,738 |
5. Property and equipment and right of use assets
Property and equipment and right of use assets are stated at cost less accumulated depreciation. Major renewals and improvements are charged to the property accounts, while maintenance, and repairs which do not extend the useful life of the respective assets, are expensed as incurred. Depreciation is computed using the straight-line method over the estimated useful lives of the respective assets.
The estimated useful lives of the assets are as follows:
Description | Estimated Useful Life | |
Monitoring equipment | 1-5 years | |
Computer equipment | 3-5 years | |
Vehicles | 3-5 years | |
Office furniture and fixtures | 5-10 years |
Leasehold improvements and right of use real estate leases Life of Lease (13 months to 84 months)
Depreciation of monitoring equipment commences once it has been deployed to a patient’s address and put in use. Property and equipment and other non-current assets with definite useful lives are tested for impairment whenever events or changes in circumstances indicate that their carrying amount may not be recoverable.
Page | 10
PROTECH HOME MEDICAL CORP.
NOTES TO THE CONDENSED CONSOLIDATED
INTERIM FINANCIAL STATEMENTS
(UNAUDITED)
(Tabular dollar amounts expressed in thousands of Canadian Dollars, except per share amounts)
Office
furniture |
Right of use assets | |||||||||||||||||||||||||||
Monitoring | Computer | and | Leasehold | – Real | ||||||||||||||||||||||||
Cost | equipment | equipment | fixtures | improvements | Vehicles | estate | Total | |||||||||||||||||||||
Balance September 30, 2019 | $ | 35,377 | $ | 668 | $ | 574 | $ | 1,548 | $ | 3,426 | $ | - | $ | 41,593 | ||||||||||||||
Additions – adoption of IFRS 16 | - | - | - | - | - | 3,456 | 3,456 | |||||||||||||||||||||
Additions | 7,231 | 9 | - | 81 | 912 | 1,379 | 9,612 | |||||||||||||||||||||
Acquisitions | 1,771 | - | - | 306 | 95 | 1,447 | 3,619 | |||||||||||||||||||||
Disposals | (15,100 | ) | (360 | ) | (134 | ) | (200 | ) | (899 | ) | (7 | ) | (16,700 | ) | ||||||||||||||
Foreign exchange | 670 | 18 | 21 | 157 | 196 | 25 | 1,087 | |||||||||||||||||||||
Balance June 30, 2020 | $ | 29,949 | $ | 335 | $ | 461 | $ | 1,892 | $ | 3,730 | $ | 6,300 | $ | 42,667 |
Office | Right of use | |||||||||||||||||||||||||||
furniture | assets | |||||||||||||||||||||||||||
Monitoring | Computer | and | Leasehold | – Real | ||||||||||||||||||||||||
Accumulated Depreciation | equipment | equipment | fixtures | improvements | Vehicles | estate | Total | |||||||||||||||||||||
Balance September 30, 2019 | $ | 19,557 | $ | 491 | $ | 344 | $ | 340 | $ | 1,365 | $ | - | $ | 22,097 | ||||||||||||||
Depreciation | 11,635 | 87 | 74 | 147 | 643 | 1,473 | 14,059 | |||||||||||||||||||||
Disposals | (15,100 | ) | (360 | ) | (134 | ) | (200 | ) | (706 | ) | (7 | ) | (16,507 | ) | ||||||||||||||
Foreign exchange | 490 | 12 | 13 | 109 | 119 | 3 | 746 | |||||||||||||||||||||
Balance June 30, 2020 | $ | 16,582 | $ | 230 | $ | 297 | $ | 396 | $ | 1,421 | $ | 1,469 | $ | 20,395 |
Office | Right of use | |||||||||||||||||||||||||||
furniture | assets | |||||||||||||||||||||||||||
Monitoring | Computer | and | Leasehold | – Real | ||||||||||||||||||||||||
Net Book Value | equipment | equipment | fixtures | improvements | Vehicles | estate | Total | |||||||||||||||||||||
Balance September 30, 2019 | $ | 15,820 | $ | 177 | $ | 230 | $ | 1,208 | $ | 2,061 | $ | - | $ | 19,496 | ||||||||||||||
Balance June 30, 2020 | $ | 13,367 | $ | 105 | $ | 164 | $ | 1,496 | $ | 2,309 | $ | 4,831 | $ | 22,272 |
Included in the cost of monitoring equipment are right of use assets of $19,398,000 as of September 30, 2019 and $18,839,000 as of June 30, 2020. Included in the cost of vehicles are right of use assets of $2,457,000 as of September 30, 2019 and $2,231,000 as of June 30, 2020.
6. | Goodwill and intangible assets |
The Company has recorded various intangible assets consisting primarily of non-compete agreements, trademarks, customer contracts and customer relationships. Non-compete agreements are the value associated with the non-compete agreements entered by the sellers of purchased companies. Trademarks are the purchase price allocation for the value associated with the trade name of the acquired company. Customer contracts are comprised of the purchase price allocation of the present value of expected future customer billings based on the statistical life of a customer. Customer relationships are the value given in the purchase price allocation to the long-term associations with referral sources such as doctors, medical centers, etc. Finite life intangible assets are amortized on a straight-line basis over the estimated useful lives of the related assets as follows:
Description | Estimated Useful Life | |
Non-compete agreements | 5 Years | |
Trademarks | 10 Years | |
Customer contracts | 2 Years | |
Customer relationships | 10 Years |
Gains or losses arising from de-recognition of an intangible asset are measured as the difference between the net disposal proceeds and the carrying amount of the asset and are recognized in the Statements of Net Loss and Comprehensive Loss when the asset is derecognized.
The Company reviews the estimates for useful lives on an annual basis, or more frequently if events during the period indicate that a change may be required, with consideration given to technological obsolescence and other relevant business factors. A change in management’s estimate could impact depreciation/amortization expense and the carrying value of property and equipment and intangible assets.
Page | 11
PROTECH HOME MEDICAL CORP.
NOTES TO THE CONDENSED CONSOLIDATED
INTERIM FINANCIAL STATEMENTS
(UNAUDITED)
(Tabular dollar amounts expressed in thousands of Canadian Dollars, except per share amounts)
Non-
compete |
Customer | Customer |
Sub-total
intangibles with finite |
|||||||||||||||||||||||||
Cost | Goodwill | agreements | Brand | contracts | relationships | lives | Total | |||||||||||||||||||||
Balance September 30, 2019 | $ | 1,881 | $ | 684 | $ | 1,776 | $ | 5,099 | $ | 11,204 | $ | 18,763 | $ | 20,644 | ||||||||||||||
Acquisitions | 3,441 | - | - | - | - | - | 3,441 | |||||||||||||||||||||
Effects of changes in exchange rates | 183 | 20 | 52 | 148 | 330 | 550 | 733 | |||||||||||||||||||||
Balance June 30, 2020 | $ | 5,505 | $ | 704 | $ | 1,828 | $ | 5,247 | $ | 11,534 | $ | 19,313 | $ | 24,818 |
Non-
compete |
Customer | Customer |
Sub-total
intangibles with finite |
|||||||||||||||||||||||||
Accumulation amortization | Goodwill | agreements | Brand | contracts | relationships | lives | Total | |||||||||||||||||||||
Balance September 30, 2019 | $ | - | $ | 636 | $ | 1,176 | $ | 4,937 | $ | 9,103 | $ | 15,852 | $ | 15,852 | ||||||||||||||
Amortization | - | 30 | 81 | 139 | 275 | 525 | 525 | |||||||||||||||||||||
Effect of changes in exchange rates | - | 20 | 31 | 144 | 324 | 519 | 519 | |||||||||||||||||||||
Balance June 30, 2020 | $ | - | $ | 686 | $ | 1,288 | $ | 5,220 | $ | 9,702 | $ | 16,896 | $ | 16,896 |
Goodwill | Non-compete agreements | Brand |
Customer
contracts |
Customer
relationships |
Sub-total intangibles with finite lives | Total | ||||||||||||||||||||||
Net carrying amount | $ | 1,881 | $ | 48 | $ | 600 | $ | 162 | $ | 2,101 | $ | 2,911 | $ | 4,792 | ||||||||||||||
Balance September 30, 2019 Balance June 30, 2020 | $ | 5,505 | $ | 18 | $ | 540 | $ | 27 | $ | 1,832 | $ | 2,417 | $ | 7,922 |
7. Deferred Income - CARES Act | |||
During the three months ended June 30, 2020, the Company received | payments related to the two separate provisions of the | ||
CARES Act. | |||
Payroll Protection Plan (“PPP’) |
On April 21, 2020, the Company received approximately $6,000,000 (approximately $5,800,000 at the June 30 exchange rate) related to the PPP, which was to assist companies in maintaining their workforce. The PPP provided for loans to qualifying businesses for amounts up to 2.5 times of the average monthly payroll expenses. The loans and accrued interest are forgivable as long as the borrower uses the loan proceeds for eligible purposes, including payroll, benefits, rent, and utilities for up to twenty-four weeks, and maintains certain payroll levels. The unforgiven portion of the PPP loan is payable over two years at an interest rate of 1%, with a deferral of payments for the first six months.
Since the Company expects to meet the PPP’s eligibility criteria and has concluded that the PPP loan represents, in substance, a grant that is expected to be forgiven, it has accounted for the proceeds under IAS 20, Accounting for Government Grants and Disclosure of Government Assistance. The cash inflow has been reported as a deferred income liability.
Public Health and Social Services Emergency Fund (“Relief Fund”)
During the three months ended June 30, 2020, the Company received approximately $2,400,000 from the Relief Fund, which was established to support healthcare providers to prevent, prepare for, and respond to coronavirus, including health care related expenses or lost revenues, subject to certain terms and conditions. If those terms and conditions are met, payments do not need to be repaid. No expenses related to the PPP can be used to meet the terms and conditions for the Relief Fund.
Since the Company expects to meet the Relief Fund’s terms and conditions, it has accounted for the proceeds under IAS 20, Accounting for Government Grants and Disclosure of Government Assistance. The cash inflow was initially reported as a deferred income liability. The Company has reduced the liability as it recognizes the related cost to which the grant relates.
Page | 12
PROTECH HOME MEDICAL CORP.
NOTES TO THE CONDENSED CONSOLIDATED
INTERIM FINANCIAL STATEMENTS
(UNAUDITED)
(Tabular dollar amounts expressed in thousands of Canadian Dollars, except per share amounts)
8. Debentures and lease liabilities
Debentures
On March 7, 2019, the Company issued $15,000,000 in 8.0% Convertible Unsecured Debentures due March 7, 2024, with interest payable semi-annually on June 30 and December 31. Each $1,000 debenture is convertible at the option of the holder into approximately 769.23 common shares. After three years, the Company can force conversion of the outstanding principal at conversion price of $1.30, if the daily volume weighted average price of the common shares exceeds $1.62 per share for twenty consecutive trading days. The debenture agreement also allows for payment of cash in lieu of common shares upon exercise of conversion right by the holder, equivalent of the market price on the conversion date.
The Company issued compensation options to the underwriters for 519,231 shares of the Company at an exercise price of $1.30 for a period of two years from the closing of the transaction. The fair value of the options has been valued at $0.34 for a total of $175,000, using the Black-Scholes pricing model with the following assumptions:
Exercise price per share | $ | 1.30 | ||
Risk-free interest rate | 1.62 | % | ||
Expected volatility | 87.4 | % | ||
Expected life of option | 2 years | |||
Expected dividend yield | 0.0 | % |
Compensation options activity for the nine months ended June 30, 2020 is provided below:
Number | Weighted | |||||||
(000s) | average exercise price | |||||||
Balance, September 30, 2019 | 519 | $ | 1.30 | |||||
Balance, June 30, 2020 | 519 | $ | 1.30 |
The debentures contain multiple embedded derivatives including conversion right, forced conversion option and payment in lieu of common shares. Since the Company is unable to measure the fair value of embedded derivatives reliably, it has chosen to designate the convertible debentures in their entirety (including conversion right, forced conversion option and payment in lieu of common shares) to be subsequently measured at fair value through profit or loss (FVTPL).
The debentures are valued at fair value using the current trading price, with the increase in fair market value resulting in a loss of $3,314,000 and $1,500,000 being recorded in the statement of income (loss) and other comprehensive (loss) income for the three and nine months ended June 30, 2020, respectively.
During 2014, the Company issued $8,625,000 in unsecured subordinated debentures due December 31, 2019. The debentures were repaid in April 2019 for $8,970,000, including a prepayment premium. The carrying value of the debentures at settlement was $7,864,000, resulting in a loss on early extinguishment of $1,106,000 due to unaccreted balance and premium paid due to early settlement.
Page | 13
PROTECH HOME MEDICAL CORP.
NOTES TO THE CONDENSED CONSOLIDATED
INTERIM FINANCIAL STATEMENTS
(UNAUDITED)
(Tabular dollar amounts expressed in thousands of Canadian Dollars, except per share amounts)
Leases Liabilities
Below is the movement in lease liabilities for the nine months ended June 30, 2020:
Monitoring
Equipment |
Vehicles |
Right of use
assets – real estate |
Total | |||||||||||||
Balance, September 30, 2019 | $ | 9,675 | $ | 1,934 | $ | - | $ | 11,609 | ||||||||
Additions during the period: | ||||||||||||||||
Adoption of IFRS 16, Leases | - | - | 3,456 | 3,456 | ||||||||||||
Acquisitions | 1,024 | 87 | 1,447 | 2,558 | ||||||||||||
Operations | 7,968 | 957 | 1,310 | 10,235 | ||||||||||||
Repayments | (10,865 | ) | (680 | ) | (1,313 | ) | (12,858 | ) | ||||||||
Effect of changes in exchange rates | 286 | 61 | 133 | 480 | ||||||||||||
Balance, June 30, 2020 | $ | 8,088 | $ | 2,329 | $ | 5,033 | $ | 15,480 |
Additions during the period are comprised of monitoring equipment and vehicles at incremental borrowing rates between 6% and 7.5% with final maturities through 2024, and real estate at the incremental borrowing rate of 8% with final maturities through 2026.
Future payments pursuant to lease liabilities are as follows:
As at
June 30, 2020 |
As at
September 30, 2019 |
|||||||
Less than 1 year | $ | 10,638 | $ | 8,528 | ||||
Between 1 and 5 years | 6,918 | 3,755 | ||||||
More than five years | 134 | - | ||||||
Total | $ | 17,250 | $ | 12,283 |
Below is the reconciliation of total future minimum lease payments and its present value at the end of the reporting period:
As at June 30, 2019 |
As at September 30, 2019 |
|||||||
Gross lease payments | $ | 17,250 | $ | 12,283 | ||||
Less: finance charges | (1,770 | ) | (674 | ) | ||||
Net lease liabilities | $ | 15,480 | $ | 11,609 |
9. | Share capital |
Bought deals and private placements
On June 29, 2020, the Company completed a bought deal public offering, a concurrent brokered private placement, and a non-brokered private placement to the Company’s Chief Executive Officer and a director of the Company, for 25,001,000, 1,750,000 and 927,826 units, respectively. Each unit issued was issued at a price of $1.15 for total gross proceeds of $31,831,000, and consisted of one common share and one-half of one common share purchase warrant (each whole warrant, a “Warrant”). Each Warrant will be exercisable to acquire one common share for a period of 12 months following the closing at an exercise price of $1.60 per share. The fair value of the Warrants has been valued at $0.16 for a total of $2,208,000, using the Black-Scholes pricing model with the following assumptions:
Exercise price per share | $ | 1.60 | ||
Risk-free interest rate | 0.28 | % |
Page | 14
PROTECH HOME MEDICAL CORP.
NOTES TO THE CONDENSED CONSOLIDATED
INTERIM FINANCIAL STATEMENTS
(UNAUDITED)
(Tabular dollar amounts expressed in thousands of Canadian Dollars, except per share amounts)
Expected volatility | 65.8 | % | ||
Expected life of warrant | 1 year | |||
Expected dividend yield | 0.00 | % |
Warrant activity for the nine months ended June 30, 2020 is provided below:
Number | Weighted | |||||||
(000s) | average exercise price | |||||||
Balance, September 30, 2019 | - | $ | - | |||||
Issued | 13,839 | 1.60 | ||||||
Balance, June 30, 2020 | 13,839 | $ | 1.60 |
Issuance costs of $2,546,000 in cash, including underwriters’ commission of $1,692,000, were incurred. The Company issued compensation options to the underwriter for 1,471,305 shares at the issue price of $1.15 for a period of two years from the closing of the offering. The fair value of the options has been valued at $0.42 for a total of $622,000, using the Black-Scholes pricing model with the following assumptions:
Exercise price per share | $ | 1.15 | ||
Risk-free interest rate | 0.25 | % | ||
Expected volatility | 71.0 | % | ||
Expected life of option | 2 years | |||
Expected dividend yield | 0.00 | % |
Activity for the June 2020 compensation options for the nine months ended June 30, 2020 is as follows:
Number | Weighted | |||||||
(000s) | average exercise price | |||||||
Balance, September 30, 2019 | - | $ | - | |||||
Issued | 1,471 | 1.15 | ||||||
Balance, June 30, 2020 | 1,471 | $ | 1.15 |
On November 2, 2018, the Company completed a bought deal offering of 5,649,600 common shares of the Company at a price of $0.60 per share for gross proceeds to the Company of $3,390,000. In conjunction with this transaction, the Company also completed non-brokered private placement of 1,833,333 common shares to officers and directors at the $0.60 issue price for gross proceeds to the Company of $1,100,000. Issuance costs of $343,000 in cash were incurred. The Company issued compensation options to the underwriter for 367,224 shares at the issue price of $0.60 for a period of 24 months from the closing of the offering. The fair value of the options has been valued at $0.36 for a total of $132,000, using the Black-Scholes pricing model with the following assumptions:
Exercise price per share | $ | 0.60 | ||
Risk-free interest rate | 2.35 | % | ||
Expected volatility | 87.88 | % | ||
Expected life of option | 2 years | |||
Expected dividend yield | 0.00 | % |
There was no activity in the November 2018 compensation options for the nine months ended June 30, 2020 and the balances are as follows:
Number | Weighted | |||||||
(000s) | average exercise price | |||||||
Balances, September 30, | ||||||||
2019 and June 30,2020 | 367 | $ | 0.60 |
Page | 15
PROTECH HOME MEDICAL CORP.
NOTES TO THE CONDENSED CONSOLIDATED
INTERIM FINANCIAL STATEMENTS
(UNAUDITED)
(Tabular dollar amounts expressed in thousands of Canadian Dollars, except per share amounts)
Stock options and grants
The Company has a stock option plan, which it uses for grants to directors, officers, employees, and consultants. Options granted under the plan are non-assignable and may be granted for a term not exceeding ten years. Stock options generally vest either immediately or quarterly over a two-year period.
A summary of stock options is provided below:
Number of options
(000’s) |
Weighted
average exercise price |
|||||||
Balance, September 30, 2019 | 11,392 | $ | 0.49 | |||||
Granted | 100 | 1.10 | ||||||
Exercised | (517 | ) | 0.58 | |||||
Forfeited | (22 | ) | 0.38 | |||||
Expired | (237 | ) | 0.95 | |||||
Balance, June 30, 2020 | 10,716 | $ | 0.48 |
At June 30, 2020, the Company had 10,533,420 vested stock options with a weighted average exercise price of $0.48.
The Company accounts for stock-based compensation, including stock options and stock grants, using the fair value method as prescribed by IFRS 2. Under this method, the fair value of stock options at the date of grant is expensed over the vesting period and the offsetting credit is recorded as an increase in contributed surplus.
For the three months ended June 30, 2020 and 2019, the Company recorded stock-based compensation expense of $73,000 and $446,000, respectively.
For the nine months ended June 30, 2020 and 2019, the Company recorded stock-based compensation expense of $207,000 and $1,337,000, respectively.
The fair value of the stock options has been charged to the statement of loss and comprehensive loss and credited to contributed surplus over the proper vesting period, using the Black-Scholes option pricing model calculated using the following assumptions:
Nine months ended | Nine months ended | |||||||
June 30, 2020 | June 30, 2019 | |||||||
Exercise price per share | $ | 1.10 | $ | 0.63 | ||||
Risk-free interest rate | 1.64 | % | 2.24 | % | ||||
Expected volatility | 83.2 | % | 118.17 | % | ||||
Expected life of option | 4 years | 10 years | ||||||
Expected dividend yield | Nil | Nil |
10. | Contingencies |
From time to time, the Company is involved in various legal proceedings arising from the ordinary course of business, None of the matters in which the Company is currently involved, either individually, or in the aggregate, is expected to have a material adverse effect on the Company’s consolidated financial position, results of operations, or cash flows.
Page | 16
PROTECH HOME MEDICAL CORP.
NOTES TO THE CONDENSED CONSOLIDATED
INTERIM FINANCIAL STATEMENTS
(UNAUDITED)
(Tabular dollar amounts expressed in thousands of Canadian Dollars, except per share amounts)
11. | Expenses By Nature |
Selling, general, and administrative |
Three months ended
June 30, 2020 |
Three months ended
June 30, 2019 |
Nine months ended
June 30, 2020 |
Nine months ended
June 30, 2019 |
||||||||||||
Payroll and employee benefits | $ | 7,828 | $ | 6,510 | $ | 23,239 | $ | 19,403 | ||||||||
Facilities related expenses | 489 | 862 | 1,835 | 2,570 | ||||||||||||
Bad debt expense | 2,414 | 1,341 | 6,528 | 4,233 | ||||||||||||
Billing | 586 | 411 | 1,537 | 1,261 | ||||||||||||
Auto expense | 291 | 364 | 1,129 | 995 | ||||||||||||
Professional fees | 394 | 169 | 1,045 | 985 | ||||||||||||
Utilities | 131 | 125 | 430 | 371 | ||||||||||||
Marketing and advertising | 122 | 155 | 529 | 458 | ||||||||||||
Other | 637 | 435 | 1,912 | 1,419 | ||||||||||||
Total selling, general, and administrative | $ | 12,892 | $ | 10,372 | $ | 38,184 | $ | 31,695 |
12. | Income (Loss) per share |
Income (loss) per common share is calculated using the weighted average number of common shares outstanding during the period. Diluted income (loss) per share amounts are calculated giving effect to the potential dilution that would occur from the incremental shares issued if in-the-money securities or other contracts to issue common shares were exercised or converted to common shares by assuming the proceeds received from the exercise of stock options and warrants are used to purchase common shares at the prevailing market price. For periods with a net loss, the potential dilutive shares were excluded because their effect is anti-dilutive.
The following reflects the earnings and share data used in the basic and diluted income (loss) per share computations:
Three months
ended June 30,
|
Three
months
ended June 30, 2019 |
Nine
months
ended June 30, 2020 |
Nine
months
ended June 30, 2019 |
|||||||||||||
Net income (loss) for continuing operations | $ | (3,731 | ) | $ | (12,564 | ) | $ | (3,432 | ) | $ | (13,541 | ) | ||||
Net income (loss) for discontinued operations | - | 25 | (416 | ) | 607 | |||||||||||
Basic weighted average number of shares | 84,261 | 83,529 | 83,834 | 82,627 | ||||||||||||
Diluted weighted average number of shares | 84,261 | 83,529 | 83,834 | 82,627 | ||||||||||||
Basic – continuing operations | $ | (0.04 | ) | $ | (0.15 | ) | $ | (0.04 | ) | $ | (0.17 | ) | ||||
Diluted – continuing operations | (0.04 | ) | (0.15 | ) | (0.04 | ) | (0.17 | ) | ||||||||
Basic – discontinued operations | - | - | (0.01 | ) | 0.01 | |||||||||||
Diluted – discontinued operations | - | - | (0.01 | ) | 0.01 |
13. | Related party transactions |
The Company has six market rate leases for office, warehouse, and retail space with a rental Company affiliated with the Company’s Chief Executive Officer, the majority of which were entered into in 2015. The leases have a combined area of 74,520 square feet. Lease payments under these leases are approximately $68,000 per month, plus taxes, utilities and maintenance.
Payments of $59,000 and $56,000 were made to the members of the Board of Directors for the three months ended June 30, 2020 and 2019, respectively. Payments of $172,000 and $181,000 were made to members of the Board of Directors for the nine months ended June 30, 2020 and 2019, respectively.
Page | 17
PROTECH HOME MEDICAL CORP.
NOTES TO THE CONDENSED CONSOLIDATED
INTERIM FINANCIAL STATEMENTS
(UNAUDITED)
(Tabular dollar amounts expressed in thousands of Canadian Dollars, except per share amounts)
Key management personnel also participate in the Company’s share option program (see Note 8). The Company paid or accrued compensation to key management personnel the following:
Three months
2020 |
Three months
2019 |
Nine months
2020 |
Nine months
2019 |
|||||||||||||
Salaries and Benefits | $ | 272 | $ | 237 | $ | 796 | $ | 1,225 | ||||||||
Stock-based compensation | - | 296 | - | 858 | ||||||||||||
Total | $ | 272 | $ | 533 | $ | 796 | $ | 2,083 |
14. | Discontinued Operations |
On July 29, 2019, the Company sold the assets of Patient Home Monitoring, Inc. The consolidated financial statements and the notes reflect the Patient Home Monitoring, Inc. as discontinued operations. There are ongoing litigation matters involving Patient Home Monitoring, Inc. During the nine months ended June 30, 2020, the Company incurred legal fees to defend itself, and in one of the matters, reached a settlement. The second matter remains unresolved. These matters are directly related to the operations of the disposed business, and as such, are reflected as discontinued operations. Prior period amounts have been reclassified in order to be comparable to the current year presentation, as follows:
Three months
ended June |
Three months
ended June |
Nine months
|
Nine months
|
|||||||||||||
30, 2020 | 30, 2019 | 30, 2020 | 30, 2019 | |||||||||||||
Revenue | $ | - | $ | 959 | $ | - | $ | 3,239 | ||||||||
Cost of revenue | - | 270 | - | 450 | ||||||||||||
Gross margin | $ | - | 689 | $ | - | 2,789 | ||||||||||
Expenses: | ||||||||||||||||
Selling, general and administrative | - | 554 | 416 | 1,840 | ||||||||||||
Depreciation | - | 110 | - | 342 | ||||||||||||
Net income (loss) from discontinued operations | $ | - | $ | 25 | $ | (416 | ) | $ | 607 |
Page | 18
Exhibit 99.59
FORM 52-109FV2
CERTIFICATION OF INTERIM FILINGS
VENTURE ISSUER BASIC CERTIFICATE
I, Gregory Crawford, as Chief Executive Officer of Protech Home Medical Corp., certify the following:
1. Review: I have reviewed the interim financial report and interim MD&A (together, the “interim filings”) of Protech Home Medical Corp. (the “issuer”) for the interim period ended June 30, 2020.
2. No misrepresentations: Based on my knowledge, having exercised reasonable diligence, the interim filings do not contain any untrue statement of a material fact or omit to state a material fact required to be stated or that is necessary to make a statement not misleading in light of the circumstances under which it was made, with respect to the period covered by the interim filings.
3. Fair presentation: Based on my knowledge, having exercised reasonable diligence, the interim financial report together with the other financial information included in the interim filings fairly present in all material respects the financial condition, financial performance and cash flows of the issuer, as of the date of and for the periods presented in the interim filings.
Dated: August 17, 2020 | ||
(signed) “Gregory Crawford” | ||
Gregory Crawford | ||
Chief Executive Officer |
NOTE TO READER
In contrast to the certificate required for non-venture issuers under National Instrument 52-109 Certification of Disclosure in Issuers’ Annual and Interim Filings (NI 52-109), this Venture Issuer Basic Certificate does not include representations relating to the establishment and maintenance of disclosure controls and procedures (DC&P) and internal control over financial reporting (ICFR), as defined in NI 52-109. In particular, the certifying officers filing this certificate are not making any representations relating to the establishment and maintenance of
i. | controls and other procedures designed to provide reasonable assurance that information required to be disclosed by the issuer in its annual filings, interim filings or other reports filed or submitted under securities legislation is recorded, processed, summarized and reported within the time periods specified in securities legislation; and |
ii. | a process to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with the issuer’s GAAP. |
The issuer’s certifying officers are responsible for ensuring that processes are in place to provide them with sufficient knowledge to support the representations they are making in this certificate. Investors should be aware that inherent limitations on the ability of certifying officers of a venture issuer to design and implement on a cost effective basis DC&P and ICFR as defined in NI 52-109 may result in additional risks to the quality, reliability, transparency and timeliness of interim and annual filings and other reports provided under securities legislation.
Exhibit 99.60
FORM 52-109FV2
CERTIFICATION OF INTERIM FILINGS
VENTURE ISSUER BASIC CERTIFICATE
I, Hardik Mehta, as Chief Financial Officer of Protech Home Medical Corp., certify the following:
1. Review: I have reviewed the interim financial report and interim MD&A (together, the “interim filings”) of Protech Home Medical Corp. (the “issuer”) for the interim period ended June 30, 2020.
2. No misrepresentations: Based on my knowledge, having exercised reasonable diligence, the interim filings do not contain any untrue statement of a material fact or omit to state a material fact required to be stated or that is necessary to make a statement not misleading in light of the circumstances under which it was made, with respect to the period covered by the interim filings.
3. Fair presentation: Based on my knowledge, having exercised reasonable diligence, the interim financial report together with the other financial information included in the interim filings fairly present in all material respects the financial condition, financial performance and cash flows of the issuer, as of the date of and for the periods presented in the interim filings.
Dated: August 17, 2020
(signed) “Hardik Mehta”
Hardik Mehta
Chief Financial Officer
NOTE TO READER
In contrast to the certificate required for non-venture issuers under National Instrument 52-109 Certification of Disclosure in Issuers’ Annual and Interim Filings (NI 52-109), this Venture Issuer Basic Certificate does not include representations relating to the establishment and maintenance of disclosure controls and procedures (DC&P) and internal control over financial reporting (ICFR), as defined in NI 52-109. In particular, the certifying officers filing this certificate are not making any representations relating to the establishment and maintenance of
i. controls and other procedures designed to provide reasonable assurance that information required to be disclosed by the issuer in its annual filings, interim filings or other reports filed or submitted under securities legislation is recorded, processed, summarized and reported within the time periods specified in securities legislation; and
ii. a process to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with the issuer’s GAAP.
The issuer’s certifying officers are responsible for ensuring that processes are in place to provide them with sufficient knowledge to support the representations they are making in this certificate. Investors should be aware that inherent limitations on the ability of certifying officers of a venture issuer to design and implement on a cost effective basis DC&P and ICFR as defined in NI 52-109 may result in additional risks to the quality, reliability, transparency and timeliness of interim and annual filings and other reports provided under securities legislation.
|
Exhibit 99.61
PROTECH ENTERS CHICAGO MARKET WITH ACCRETIVE ACQUISITION OF HEALTH TECHNOLOGY RESOURCES, LLC
$5.5 MILLION IN ANNUALIZED REVENUES, AND IN EXCESS OF 30% ADJUSTED EBITDA MARGIN
INCREASES PROTECH’S ACTIVE PATIENT COUNT BY MORE THAN 3,000
Cincinnati, Ohio – August 31, 2020 – Protech Home Medical Corp. (“Protech” or the “Company”) (TSXV: PTQ), (OTCQX: PTQQF), a U.S. based leader in the home medical equipment industry, focused on end-to-end respiratory care, is pleased to announce that it has acquired Health Technology Resources, LLC (“HTR”), a company based in Illinois, reporting unaudited trailing 12-month annual revenues of approximately $5.5 million and adjusted EBITDA of approximately $1.65 million.
Acquisition Details
HTR is a leader in the respiratory home care services industry in the state of Illinois and presents Protech with the opportunity to expand into the Chicago area, a new and attractive metro hub in which the Company will leverage its existing first-rate infrastructure to create tremendous cross selling and patient growth opportunities as it continues to expand its presence across the United States. HTR currently serves patients from its Buffalo Grove, Illinois location (part of the greater Chicago area) and the management team has successfully transitioned HTR from a relatively small medical equipment company to a clinical respiratory-focused DME company with 16 employees. HTR’s management team has historically focussed on high acuity respiratory patients and has successfully implemented multiple growth strategies that have resulted in predictable growth and substantial market penetration, which will result in an immediate increase in Protech’s active patient count by over 3,000. HTR focuses on all aspects of home respiratory equipment with a specific focus on non-invasive ventilation therapy and sleep devices with a large ALS and COPD patient base. HTR is also licensed in the state of Indiana and provides services to patients in Northwest Indiana.
HTR developed and markets the “NIV RX Plus Disease Transition Program”. Using this unique, award-winning NIV program, Protech intends to utilize HTR’s high acuity respiratory program which provides non-invasive ventilation and plans to rapidly expand across existing locations. The NIV program makes up just over one third of HTR’s overall revenue and is also the fastest growing segment of its business. CMS has removed non-invasive ventilators from the 2021 competitive bidding program, allowing for a clearer and more predictable margin outlook and Protech is keen on bolstering its non-invasive ventilator volume as a percentage of its product mix given the ongoing strong market fundamentals.
HTR has great diversification amongst referral sources with no more than one source contributing 10%, a strong recurring revenue platform, and a very solid and diversified payor base, with minimal Medicare exposure.
Under the terms of the definitive purchase agreement, Protech will acquire HTR for total cash consideration of approximately $5.4 million. Post integration, it is expected HTR will increase Protech’s annual revenues by approximately $5.5 million and adjusted EBITDA by $1.8-$2.0 million. Leveraging existing infrastructure and payor contracts, Protech expects to achieve additional revenue generated from organic growth, cross selling and corporate synergies. The acquisition of HTR was originally announced by Protech on August 11, 2020 when it executed a non-binding letter of intent.
Management Commentary
“The acquisition of HTR reflects our continued effort to find quality at-home care providers with a focus on turn-key respiratory solutions that symbiotically fit into the Protech model, where we can harness our existing infrastructure to effectively capture meaningful post integration synergies. We are excited to welcome the HTR team to the Protech family,” said Greg Crawford, Chairman and CEO of Protech. “We see a tremendous amount of synergies between our companies and believe the balanced product mix, minimal reliance on Medicare, and deep referral source base will be very impactful for us and we are excited to scale our presence in the markets HTR presently serves. HTR has a very strong margin profile and is immediately accretive to Protech’s EBITDA and overall profitability, which we continue to be laser focused on as we look to the future”.
Chief Financial Officer, Hardik Mehta added, “The diversification that HTR provides along with their regional dominance will prove to be of great value to our existing portfolio. We are excited to have the opportunity to penetrate the attractive Chicago market and begin the integration process. Given our strong balance sheet, we believe HTR is just the beginning of what will be an aggressive acquisition pace for us over the remainder of 2020, including potential larger revenue opportunities as we look to accelerate our scale beyond the current run-rate revenue we have. We are heavily focused on increasing market penetration in our existing markets and adding new markets into the system. As always, we will continue to be principled in our approach and ensure we only pull the trigger when it absolutely makes sense for us to do so.”
ABOUT PROTECH HOME MEDICAL CORP.
The Company provides in-home monitoring and disease management services including end-to-end respiratory solutions for patients in the United States healthcare market. It seeks to continue to expand its offerings to include the management of several chronic disease states focusing on patients with heart or pulmonary disease, sleep disorders, reduced mobility and other chronic health conditions. The primary business objective of the Company is to create shareholder value by offering a broader range of services to patients in need of in-home monitoring and chronic disease management. The Company’s organic growth strategy is to increase annual revenue per patient by offering multiple services to the same patient, consolidating the patient’s services and making life easier for the patient.
Forward-Looking Statements
Certain statements contained in this press release constitute "forward-looking information" as such term is defined in applicable Canadian securities legislation. The words "may", "would", "could", "should", "potential", "will", "seek", "intend", "plan", "anticipate", "believe", "estimate", "expect" and similar expressions as they relate to the Company, including: HTR increasing Protech’s annual revenues by approximately $5.5 million and adjusted EBITDA by $1.8-$2.0 million; Protech expecting to achieve additional revenue generated from organic growth, cross selling and corporate synergies; and the Company completing additional acquisitions in 2020; are intended to identify forward-looking information. All statements other than statements of historical fact may be forward-looking information. Such statements reflect the Company's current views and intentions with respect to future events, and current information available to the Company, and are subject to certain risks, uncertainties and assumptions, including: HTR’s financial performance in the next 12 months being the same or better than their trailing twelve months; and the Company successfully identified, negotiating and completing additional acquisitions, including accretive acquisitions. Many factors could cause the actual results, performance or achievements that may be expressed or implied by such forward-looking information to vary from those described herein should one or more of these risks or uncertainties materialize. Examples of such risk factors include, without limitation: credit; market (including equity, commodity, foreign exchange and interest rate); liquidity; operational (including technology and infrastructure); reputational; insurance; strategic; regulatory; legal; environmental; capital adequacy; the general business and economic conditions in the regions in which the Company operates; the ability of the Company to execute on key priorities, including the successful completion of acquisitions, business retention, and strategic plans and to attract, develop and retain key executives; difficulty integrating newly acquired businesses; the ability to implement business strategies and pursue business opportunities; low profit market segments; disruptions in or attacks (including cyber-attacks) on the Company's information technology, internet, network access or other voice or data communications systems or services; the evolution of various types of fraud or other criminal behavior to which the Company is exposed; the failure of third parties to comply with their obligations to the Company or its affiliates; the impact of new and changes to, or application of, current laws and regulations; decline of reimbursement rates; dependence on few payors; possible new drug discoveries; a novel business model; dependence on key suppliers; granting of permits and licenses in a highly regulated business; the overall difficult litigation environment, including in the U.S.; increased competition; changes in foreign currency rates; increased funding costs and market volatility due to market illiquidity and competition for funding; the availability of funds and resources to pursue operations; critical accounting estimates and changes to accounting standards, policies, and methods used by the Company; the occurrence of natural and unnatural catastrophic events and claims resulting from such events; and risks related to COVID-19 including various recommendations, orders and measures of governmental authorities to try to limit the pandemic, including travel restrictions, border closures, non-essential business closures, quarantines, self-isolations, shelters-in-place and social distancing, disruptions to markets, economic activity, financing, supply chains and sales channels, and a deterioration of general economic conditions including a possible national or global recession; as well as those risk factors discussed or referred to in the Company’s disclosure documents filed with the securities regulatory authorities in certain provinces of Canada and available at www.sedar.com. Should any factor affect the Company in an unexpected manner, or should assumptions underlying the forward-looking information prove incorrect, the actual results or events may differ materially from the results or events predicted. Any such forward-looking information is expressly qualified in its entirety by this cautionary statement. Moreover, the Company does not assume responsibility for the accuracy or completeness of such forward-looking information. The forward-looking information included in this press release is made as of the date of this press release and the Company undertakes no obligation to publicly update or revise any forward-looking information, other than as required by applicable law.
Non-GAAP Measures
This press release refers to “Adjusted EBITDA” which is a non-GAAP and non-IFRS financial measure that does not have a standardized meaning prescribed by GAAP or IFRS. The Company’s presentation of this financial measure may not be comparable to similarly titled measures used by other companies. This financial measure is intended to provide additional information to investors concerning the Company’s and HTR’s performance. Adjusted EBITDA is defined as EBITDA excluding stock-based compensation. Adjusted EBITDA is a Non-IFRS measure the Company uses as an indicator of financial health and excludes several items which may be useful in the consideration of the financial condition of the Company and HTR, as applicable, including interest expense, income taxes, depreciation, amortization, stock-based compensation, goodwill impairment and change in fair value of debentures and financial derivatives.
Unless otherwise specified, all dollar amounts in this press release are expressed in Canadian dollars.
Neither the TSX Venture Exchange nor its Regulation Services Provider (as that term is defined in the policies of the TSX Venture Exchange) accepts responsibility for the adequacy or accuracy of this release.
For further information please visit our website at www.protechhomemedical.com, or contact:
Cole Stevens
VP of Corporate Development
Protech Home Medical Corp.
859-300-6455
cole.stevens@myphm.com
Gregory Crawford
Chief Executive Officer
Protech Home Medical Corp.
859-300-6455
investorinfo@myphm.com
Exhibit 99.62
PROTECH ANNOUNCES EXECUTION OF LOI TO ACQUIRE A PROFITABLE LEADING SUPPLIER OF RESPIRATORY THERAPY PRODUCTS AND SERVICES IN THE SOUTHEASTERN U.S.
TARGET HAS $13 MILLION IN ANNUALIZED REVENUES, WOULD EXPAND PROTECH’S OPERATING FOOTPRINT IN THE SOUTHEAST WITH 5 NEW LOCATIONS, INCLUDING SEVERAL NEW MARKET AND WOULD INCREASE ACTIVE PATIENT COUNT BY MORE THAN 15,000
Cincinnati, Ohio – September 8, 2020 – Protech Home Medical Corp. (“Protech” or the “Company”) (TSXV: PTQ), (OTCQX: PTQQF), a U.S. based leader in the home medical equipment industry, focused on end-to-end respiratory care, is very pleased to announce it has executed a non-binding letter of intent (the “LOI”) today to acquire an arm’s length private respiratory care company in the Southeastern United States reporting unaudited trailing 12-month annual revenues of approximately $13 million, significant adjusted EBITDA, and positive net income.
Acquisition Details
The target company has been a leader in the respiratory home care services industry in the Southeastern United States for over 15 years. The target would significantly enhance Protech’s presence in the Southeast with 5 new locations, including adding several new markets, and would increase Protech’s active patient count by over 15,000. The target has a strong management team, that will continue to be apart of the Protech family post-closing, along with an exceptionally strong professional team that is continually updated in the latest in respiratory technology through attendance at national seminars, participation in factory training programs, and in-house education. Additionally, the target is highly concentrated on sleep therapy with a very strong re-supply business, which Protech intends to significantly expand post-closing. The target offers superior service through their dedicated patient care and education team, as well as their sleep therapy specialists. Like Protech, the target offers high-quality service, equipment, and supplies with a strategic focus on their sleep business and resupply program. Moreover, the target has a successful Oxygen Therapy program led by attention to patient education and compliance. Finally, the target has great diversification amongst referral sources, and a very strong and diversified payor base resulting in long recurring revenue cycles which fit hand in hand with Protech’s business model. The target does not have any, thus Protech will not assume any, long term debt.
According to the LOI, Protech expects to close the acquisition for cash at a reasonable multiple that would immediately be accretive to Protech’s EBITDA and net income. Closing of the acquisition is subject to final due diligence, final negotiation and execution of a definitive purchase agreement and all necessary approvals and is expected to occur within the next 45 days.
The acquisition is expected to increase Protech’s annual revenues by approximately $13 million. Leveraging existing infrastructure, Protech expects to achieve additional revenue generated from organic growth, cross selling and corporate synergies.
“We are extremely excited to have executed an LOI to add a Southeastern based leader in respiratory care to the Protech family,” said Greg Crawford, Chairman and CEO of Protech. “The acquisition would immediately accelerate our scale in the Southeast region with the addition of 15,000 active patients, 5 new locations, and would add a new and exciting market for us. This acquisition would be immediately accretive to Protech’s EBITDA, overall profitability and would add $13 million to the top-line which would put us closer to our next stated goal of $125 million in run-rate revenue. Post-closing, we also see a significant opportunity to increase the targets current re-supply business and will use our operational expertise, leveraging our first-rate infrastructure to achieve profit growth through our integration platform. I am pleased to report that our acquisition pipeline continues to be robust and we expect to remain extremely active on the M&A front as we close out 2020, with a particular focus on increasing scale through market penetration in our existing markets and by adding new markets into the system.”
Chief Financial Officer, Hardik Mehta added, “Our focus continues to be on larger accretive transactions which further our goal of creating scale within our organization at an accelerated pace, and this acquisition reflects this strategy. This target is a prime example of our ability to execute on our stated long-term vision for Protech and we look forward to a potential closing on this exciting respiratory care company that strategically assists us in further penetrating the Southeast region. As always, we will work diligently to integrate the business onto the Protech platform and are excited to welcome the targets management team to Protech. We expect to be busy on the acquisition front, and look forward to updating shareholders on our progress as appropriate.”
Additional information will be released by the Company as it occurs. There can be no assurance that any acquisitions (including the particular acquisition contemplated herein) will be completed as proposed or at all or the timing of any acquisitions.
ABOUT PROTECH HOME MEDICAL CORP.
The Company provides in-home monitoring and disease management services including end-to-end respiratory solutions for patients in the United States healthcare market. It seeks to continue to expand its offerings to include the management of several chronic disease states focusing on patients with heart or pulmonary disease, sleep disorders, reduced mobility and other chronic health conditions. The primary business objective of the Company is to create shareholder value by offering a broader range of services to patients in need of in-home monitoring and chronic disease management. The Company’s organic growth strategy is to increase annual revenue per patient by offering multiple services to the same patient, consolidating the patient’s services and making life easier for the patient.
Forward-Looking Statements
Certain statements contained in this press release constitute "forward-looking information" as such term is defined in applicable Canadian securities legislation. The words "may", "would", "could", "should", "potential", "will", "seek", "intend", "plan", "anticipate", "believe", "estimate", "expect" and similar expressions as they relate to the Company, including: the acquisition increasing Protech’s active patient count by over 15,000; Protech intending to significantly expand the target’s re-supply business post-closing; closing of the acquisition within the next 45 days; the acquisition increasing Protech’s annual revenues by approximately $13 million; Protech expecting to achieve additional revenue generated from organic growth, cross selling and corporate synergies; Protech’s post- closing plans for the target; and Protech expecting to remain extremely active on the M&A front, including in the balance of 2020; are intended to identify forward-looking information. All statements other than statements of historical fact may be forward-looking information. Such statements reflect the Company's current views and intentions with respect to future events, and current information available to the Company, and are subject to certain risks, uncertainties and assumptions, including: receipt of all necessary approvals for the acquisition; the Company successfully completing the negotiation and execution of a definitive purchase agreement and all closing conditions being waived or satisfied in a timely manner; the financial performance of the target post-closing performing similar to its pre-closing performance; and the Company successfully identified, negotiating and completing additional acquisitions, including accretive acquisitions. Many factors could cause the actual results, performance or achievements that may be expressed or implied by such forward-looking information to vary from those described herein should one or more of these risks or uncertainties materialize. Examples of such risk factors include, without limitation: credit; market (including equity, commodity, foreign exchange and interest rate); liquidity; operational (including technology and infrastructure); reputational; insurance; strategic; regulatory; legal; environmental; capital adequacy; the general business and economic conditions in the regions in which the Company operates; the ability of the Company to execute on key priorities, including the successful completion of acquisitions, business retention, and strategic plans and to attract, develop and retain key executives; difficulty integrating newly acquired businesses; the ability to implement business strategies and pursue business opportunities; low profit market segments; disruptions in or attacks (including cyber-attacks) on the Company's information technology, internet, network access or other voice or data communications systems or services; the evolution of various types of fraud or other criminal behavior to which the Company is exposed; the failure of third parties to comply with their obligations to the Company or its affiliates; the impact of new and changes to, or application of, current laws and regulations; decline of reimbursement rates; dependence on few payors; possible new drug discoveries; a novel business model; dependence on key suppliers; granting of permits and licenses in a highly regulated business; the overall difficult litigation environment, including in the U.S.; increased competition; changes in foreign currency rates; increased funding costs and market volatility due to market illiquidity and competition for funding; the availability of funds and resources to pursue operations; critical accounting estimates and changes to accounting standards, policies, and methods used by the Company; the occurrence of natural and unnatural catastrophic events and claims resulting from such events; and risks related to COVID-19 including various recommendations, orders and measures of governmental authorities to try to limit the pandemic, including travel restrictions, border closures, non-essential business closures, quarantines, self-isolations, shelters-in-place and social distancing, disruptions to markets, economic activity, financing, supply chains and sales channels, and a deterioration of general economic conditions including a possible national or global recession; as well as those risk factors discussed or referred to in the Company’s disclosure documents filed with the securities regulatory authorities in certain provinces of Canada and available at www.sedar.com. Should any factor affect the Company in an unexpected manner, or should assumptions underlying the forward-looking information prove incorrect, the actual results or events may differ materially from the results or events predicted. Any such forward-looking information is expressly qualified in its entirety by this cautionary statement. Moreover, the Company does not assume responsibility for the accuracy or completeness of such forward-looking information. The forward-looking information included in this press release is made as of the date of this press release and the Company undertakes no obligation to publicly update or revise any forward-looking information, other than as required by applicable law.
Unless otherwise specified, all dollar amounts in this press release are expressed in Canadian dollars.
Neither the TSX Venture Exchange nor its Regulation Services Provider (as that term is defined in the policies of the TSX Venture Exchange) accepts responsibility for the adequacy or accuracy of this release.
For further information please visit our website at www.protechhomemedical.com, or contact:
Cole Stevens
VP of Corporate Development
Protech Home Medical Corp.
859-300-6455
cole.stevens@myphm.com
Gregory Crawford
Chief Executive Officer
Protech Home Medical Corp.
859-300-6455
investorinfo@myphm.com
Exhibit 99.63
Execution Version
CREDIT AGREEMENT
Dated as of September 18, 2020
by and among
PHM LOGISTICS CORPORATION
and
CERTAIN OTHER SUBSIDIARIES OF PHM SERVICES INC.
as Borrowers,
PHM SERVICES INC.
as Parent,
CIT BANK, N.A.,
for itself as a Lender and as Administrative Agent for all Lenders,
and
THE OTHER FINANCIAL INSTITUTIONS PARTY HERETO AS LENDERS
-ii-
-iii-
-iv-
-v-
-vi-
-vii-
Exhibit A | Form of Assignment Agreement |
Exhibit B | Form of Compliance Certificate |
Exhibit C | Form of Revolving Note |
Exhibit D | Closing Checklist |
-viii-
CREDIT AGREEMENT
THIS CREDIT AGREEMENT is dated as of September 18, 2020 (as the same may be amended, restated, supplemented or otherwise modified from time to time, this “Agreement”) by and among PHM LOGISTICS CORPORATION, a Delaware corporation (“Logistics”), and each of the Persons signatory hereto and named on Schedule 1 hereto as a Borrower (each a “Borrower” and, collectively, the “Borrowers”), PHM SERVICES INC., a Delaware corporation (the “Parent”), as a Guarantor, and each of the Persons signatory hereto and named on Schedule 1 hereto as a Guarantor, the financial institutions from time to time party hereto as lenders (each, a “Lender” and collectively the “Lenders”) and CIT BANK, N.A., a national banking association, in its capacity as administrative agent for Lenders (together with its successors and assigns, “Administrative Agent”).
RECITALS
Borrowers have requested that Lenders make available to Borrowers the financing facilities as described herein. Lenders are willing to extend such credit to Borrowers under the terms and conditions herein set forth.
AGREEMENT
NOW, THEREFORE, in consideration of the promises and the agreements, provisions and covenants herein contained, Borrowers, Lenders and Administrative Agent agree as follows:
ARTICLE 1 DEFINITIONS; PRINCIPLES OF CONSTRUCTION
1.1 Specific Definitions. The following terms have the meanings set forth below:
“Acceptable Rental Agreement”: collectively, the official original of each delivery ticket for rental equipment (each a “Rental Agreement”) in form and substance acceptable to Administrative Agent, that (a) is duly executed by a Borrower and the applicable customer of a Borrower or a representative thereof, and (b) with respect to each Rental Agreement entered into after the Closing Date, includes the following stamp or legend conspicuously shown on the header portion of the first page of each Rental Agreement: “THIS DELIVERY TICKET/RENTAL AGREEMENT HAS BEEN COLLATERALLY ASSIGNED TO CIT BANK, N.A. AND ITS SUCCESSORS AND ASSIGNS. THE FOREGOING SENTENCE SHALL CONSTITUTE NOTICE OF ASSIGNMENT PURSUANT TO SECTION 9-330(f) OF THE UNIFORM COMMERCIAL CODE. ANY SALE, TRANSFER, ASSIGNMENT, CONVEYANCE, PLEDGE, GRANT OF A SECURITY INTEREST IN, PURCHASE, OR OTHER DISPOSITION OF THIS INSTRUMENT TO, BY, OR IN FAVOR OF ANY PARTY OTHER THAN CIT BANK, N.A., AS AGENT, SHALL VIOLATE THE RIGHTS OF CIT BANK, N.A., AS AGENT.”
“Account(s)”: any and all “Accounts” (as that term is defined in the UCC), whether now existing or hereafter arising.
“Accounts Availability”: eighty-five percent (85%) of the Estimated Net Value of Eligible Accounts.
“Account Debtor”: any Person obligated on any Account.
“Accrediting Organization”: any Person from which any Borrower has received an accreditation as of the Closing Date or thereafter.
“Adjusted EBITDA”: shall mean, for any period, EBITDA for such period, plus the following, without duplication, to the extent deducted and not already added back in calculating such EBITDA: (a) non-cash compensation expenses arising from the sale of Equity Interests, the granting of options to purchase Equity Interests, the granting of appreciation rights in respect of Equity Interests and similar arrangements for such period; (b) only with respect to the period ending September 30, 2020, losses and expenses incurred during such period in connection with the fraudulent cyber incident that occurred in May 2019 (such incident included the relaying of fraudulent banking information for a C$9,200,000 wire transfer to redeem outstanding debentures) in an aggregate amount not to exceed C$1,012,000; (c) in connection with any Permitted Acquisition, all reasonable, out-of-pocket transaction fees, costs and expenses payable to third parties incurred during such period; provided, the amount added back with respect to any individual Permitted Acquisition shall not exceed $100,000; (d) the impairment of goodwill and other intangibles during such period; (e) any other non-cash or one time charges agreed to in writing by Administrative Agent in its reasonable discretion; and (f) Code Section 338(h)(10) incurred in connection with any prior acquisition by Borrowers; provided, the amount added back pursuant to clause (f) and excluded from EBITDA calculation pursuant to clauses (iii) and (iv) thereof (only with respect to losses for such clause (iv)) shall not exceed $1,250,000 in the aggregate for any such period.
“Adjustment Date”: the first Business Day of each July, October, January and April of each year, commencing with the first Business Day of October 2020.
“Administrative Agent”: the meaning set forth in the preamble to this Agreement.
“Administrative Agent’s Account”: the following deposit account of Administrative Agent (or such other account as designated from time to time in writing from Administrative Agent to Borrower Representative):
CIT Bank, N.A. | |
75 North Fair Oaks Avenue | |
Pasadena, CA 91103 | |
ABA No.: | [REDACTED - number] |
Account Name: | CIT Bank, N.A. |
Account No.: | [REDACTED - number] |
Reference: | Protech Home Medical |
“Affiliate”: as to any Person, any other Person that, directly or indirectly, is in Control of, is Controlled by or is under common Control with such Person or is a director or officer of such Person or of an Affiliate of such Person.
“Agent Parties”: the meaning set forth in Section 8.1(c).
“Agreement”: the meaning set forth in the preamble to this Agreement.
“Alternate Base Rate”: for any day, a rate per annum equal to the greatest of (a) the Prime Rate in effect on such day and (b) the Federal Funds Effective Rate in effect on such day plus ½ of 1%. Any change in the Alternate Base Rate due to a change in the Prime Rate or the Federal Funds Effective Rate shall be effective from and including the effective date of such change in the Prime Rate or the Federal Funds Effective Rate, respectively.
2
“Anti-Terrorism Laws”: any Laws relating to terrorism or money laundering, including Executive Order No. 13224 (effective September 24, 2001), the USA PATRIOT Act, the Laws comprising or implementing the Bank Secrecy Act, and the Laws administered by OFAC.
“Applicable Law”: all Laws applicable to any Credit Party or any other Person, or any conduct, transaction, agreement or matter in question, including all applicable statutory law, common law and equitable principles, and all provisions of constitutions, treaties, statutes, rules, regulations, orders and decrees of Governmental Authorities.
“Applicable Margin”: from the Closing Date until the initial Adjustment Date, 2.25%. On the initial Adjustment Date, and on each subsequent Adjustment Date thereafter, the Applicable Margin shall be adjusted prospectively based on the average daily Net Availability of the Borrowers for the most recently completed Fiscal Quarter, to the following amounts:
Pricing Tier | Average Quarterly Excess Availability | Applicable Margin | ||||
I | Greater than $5,000,000 | 2.00 | % | |||
II | Between $4,000,000 and $5,000,000 | 2.25 | % | |||
III | Less than $4,000,000 | 2.75 | % |
All adjustments to the Applicable Margin shall be implemented by Administrative Agent based on the financial statements, Borrowing Base Report, Compliance Certificate and any related officer’s certificate for the relevant period delivered by the Borrowers to Administrative Agent pursuant to Section 8.3 hereof, and shall take effect retroactively on the Adjustment Date immediately preceding the date of Administrative Agent’s receipt of such financial statements, Borrowing Base Report, and Compliance Certificate. Notwithstanding the foregoing: (a) no reduction in Applicable Margin shall occur on an Adjustment Date if a Default or Event of Default shall have occurred and remain outstanding on such Adjustment Date or the date of Administrative Agent’s receipt of the financial statements, on which such reduction is to be based; and (b) if the Borrowers fail to deliver the financial statements, Borrowing Base Report, or Compliance Certificate on which any reduction in Applicable Margin is to be based within ten (10) days after the due date for such items set forth in Section 8.3, respectively, then effective as of the Adjustment Date immediately preceding the due date for such financial statements, the Applicable Margin shall increase to the Pricing Tier III set forth in the table above until the later of (i) the date on which Administrative Agent receives such financial statements, Borrowing Base Report, and Compliance Certificate, or (ii) the following Adjustment Date (the later of such dates, the “Delayed Effective Date”). On the Delayed Effective Date, the Applicable Margin shall be recalculated based on the financial statements, Borrowing Base Report and Compliance Certificate then delivered, and shall apply from the Delayed Effective Date until the next occurring Adjustment Date.
“A/R Rollforward”: the meaning set forth in Section 8.3(i).
“Asset Disposition”: a sale, lease, license, consignment, transfer or other disposition of any property or assets of any Credit Party or any Subsidiary of any Credit Party, including a disposition in connection with a sale-leaseback transaction or synthetic lease.
“Assignee”: the meaning set forth in Section 10.1(b).
“Assignment Agreement”: an Assignment and Assumption Agreement substantially in the form attached hereto as Exhibit A, with such amendments or modifications as may be approved by Administrative Agent.
3
“Authorized Officer”: the chief executive officer, president, chief financial officer, chief operating officer or treasurer of a Credit Party authorized to bind such Credit Party and, solely for purposes of notices given pursuant to Article 2, any other officer or employee of the applicable Credit Party so designated by any of the foregoing officers in a written notice to Administrative Agent. Any document delivered hereunder that is signed by an Authorized Officer of a Credit Party shall be conclusively presumed to have been authorized by all necessary corporate, limited liability company, partnership and/or other action on the part of such Credit Party and such Authorized Officer shall be conclusively presumed to have acted on behalf of such Credit Party.
“Availability”: the meaning set forth in Section 2.1.
“Availability Date”: the date upon which the requirements set forth in Section 2.6(a)(ii) and Section 2.6(a)(iii) have been satisfied (as determined by Administrative Agent in its reasonable discretion); provided, such requirements shall be satisfied by no later than thirty (30) days following the Closing Date (or such later date as agreed to in writing by Administrative Agent as determined in its sole discretion).
“Availability Period”: the meaning set forth in Section 2.1.
“Bail-In Action”: the exercise of any Write-Down and Conversion Powers by the applicable EEA Resolution Authority in respect of any liability of an EEA Financial Institution.
“Bail-In Legislation”: with respect to any EEA Member Country implementing Article 55 of Directive 2014/59/EU of the European Parliament and of the Council of the European Union, the implementing Law for such EEA Member Country from time to time which is described in the EU Bail- In Legislation Schedule.
“Banking Services”: each and any of the following banking services provided to any Credit Party as follows: (a) commercial credit cards, purchasing cards or other similar charge cards provided by Administrative Agent or an Affiliate of Administrative Agent (or otherwise introduced by, provided by, and/or such obligations guaranteed by, Administrative Agent or an Affiliate of Administrative Agent), (b) stored value cards provided by any Person that is a Lender or an Affiliate of a Lender at the time provided and (c) treasury management services (including controlled disbursement, automated clearinghouse transactions, return items, overdrafts and interstate depository network services) provided by Administrative Agent or any of Administrative Agent’s Affiliates.
“Banking Services Obligations”: any and all obligations of the Credit Parties, whether absolute or contingent and howsoever and whensoever created, arising, evidenced or acquired (including all renewals, extensions and modifications thereof and substitutions therefor) in connection with Banking Services.
“Bankruptcy Code”: Title 11 of the United States Code entitled “Bankruptcy”, as now or hereinafter in effect, or any successor statute, or similar federal or state Law for the relief of debtors.
“Beneficial Ownership Certification”: a certification regarding beneficial ownership required by the Beneficial Ownership Regulation.
“Beneficial Ownership Regulation”: 31 C.F.R. § 1010.230, or any successor regulation.
“Benefit Plan”: any of (a) an “employee benefit plan” (as defined in ERISA) that is subject to Title I of ERISA, (b) a “plan” as defined in Section 4975 of the Internal Revenue Code or (c) any Person whose assets include (for purposes of ERISA Section 3(42) or otherwise for purposes of Title I of ERISA or Section 4975 of the Internal Revenue Code) the assets of any such “employee benefit plan” or “plan”.
4
“Blocked Person”: any Person: (a) listed in the annex to, or is otherwise subject to the provisions of, Executive Order No. 13224, (b) owned or controlled by, or acting for or on behalf of, any Person that is listed in the annex to, or is otherwise subject to the provisions of, Executive Order No. 13224, (c) with which Administrative Agent or any Lender is prohibited from dealing or otherwise engaging in any transaction by any Anti-Terrorism Law, (d) that commits, threatens or conspires to commit or supports “terrorism” as defined in Executive Order No. 13224, or (e) that is named a “specially designated national” or “blocked person” on the most current list published by OFAC or other similar list or is named as a “listed person” or “listed entity” on other lists made under any Anti-Terrorism Law.
“Board of Directors”: as to any Person, the board of directors or managers, as applicable, of such Person (or, if such Person is a partnership, the board of directors or other governing body of such Person) or any duly authorized committee thereof.
“Borrower” or “Borrowers”: the meaning set forth in the preamble to this Agreement, together with any other Person that becomes a Borrower hereunder pursuant to Section 5.12 or otherwise.
“Borrower Representative”: PHM Logistics Corporation, a Delaware corporation.
“Borrowing Base”: as of any date of determination, an amount equal to the sum of (a) Accounts Availability plus (b) Rental Contract Stream Availability minus (c) such reserves, in such amounts and with respect to such matters, as Administrative Agent may deem reasonably necessary from time to time, as calculated with reference to the most recent Borrowing Base Report acceptable to Administrative Agent and otherwise in accordance with this Agreement; provided, however, notwithstanding the foregoing or anything else in this Agreement or the other Loan Documents to the contrary at no time shall the Rental Contract Stream Availability equal more than fifty percent (50.0%) of the total Borrowing Base.
“Borrowing Base Excess”: as of any date, an amount equal to the sum of Net Availability plus any unrestricted cash (free of Liens or encumbrances except in favor of Administrative Agent) on deposit in deposit accounts subject to deposit account control agreements (or where CIT Bank, N.A. is the depository bank with respect to such deposit account) providing Administrative Agent with a First Priority Lien therein.
“Borrowing Base Report”: the meaning set forth in Section 8.3(g)(i).
“Breakage Event”: the meaning set forth in Section 2.23.
“Business Day”: any day other than a Saturday, Sunday or other day on which commercial banks are authorized to close under the Laws of, or are in fact closed in, either New York or in the state where Administrative Agent’s office is located or, with respect to a Letter of Credit, the state where the Issuing Bank office is located and, if such day relates to any LIBOR Loan bearing interest at a rate based on the LIBO Rate, means any such day meeting the above requirements on which dealings in Dollar deposits are conducted by and between banks in the London interbank eurodollar market.
“Capital Expenditures”: for any period, the aggregate of all expenditures (including that portion of Capitalized Lease Obligations attributable to that period) made in respect of the purchase, construction or other acquisition of fixed or capital assets, determined in accordance with IFRS.
5
“Capital Lease”: as applied to any Person, any lease of any property (whether real, personal or mixed) by that Person as lessee that, in conformity with IFRS, is and should be accounted for as a capital lease on the balance sheet of that Person.
“Capitalized Inventory” means inventory held for sale or lease to customers of the Borrowers (including without limitation, CPAP, BiPAP, oxygen concentrators and Ventilators), which may be capitalized (including any Capital Leases related thereto) for financial reporting purposes.
“Capitalized Lease Obligations”: any Indebtedness represented by obligations under a lease that is required to be capitalized for financial reporting purposes in accordance with IFRS.
“CARES Act”: the Coronavirus Aid, Relief, and Economic Security Act, as amended from time to time (including any successor thereto), and all requests, rules, requirements, regulations, administrative guidance related to the same and directives thereunder or issued in connection therewith, regardless of the date enacted, adopted issued or implemented.
“CARES Act Deferred Payroll Taxes”: collectively, the employer portion of Social Security Payroll Taxes for the period beginning March 27, 2020 and ending December 31, 2020 deferred by any Borrower or any other Credit Party in accordance with Section 2302 of the CARES Act.
“CARES Act Obligations”: collectively, (a) all CARES Act PPP Loans, (b) the aggregate outstanding amount of each Medicare Accelerated Payment, and (c) all CARES Act Provider Relief Debt that is required to be repaid have been paid in full.
“CARES Act PPP Loan”: one more unsecured loans, all interest, fees, costs and expenses accrued or payable in connection therewith, obtained by any Borrower or any other Credit Party through the Paycheck Protection Program of the CARES Act made by an SBA qualified lender acceptable to Administrative Agent and guaranteed by the SBA, including such loans referenced in Schedule 2 hereof as CARES Act Obligations.
“CARES Act Provider Relief Debt”: collectively, the total amount of payments received by the Borrowers and the other Credit Parties pursuant to the Public Health and Social Services Emergency Fund described in the CARES Act, it being understood and agreed that all CARES Act Provider Relief Debt shall not include any sums voluntarily returned by the Borrowers or other Credit Parties following receipt thereof.
“Cash Collateralize”: to pledge and deposit with or deliver to Administrative Agent (or with and to a bank designated by Administrative Agent to be held in a deposit account subject to a control agreement (or CIT Bank, N.A. is the depository bank with respect to such deposit account)), for the benefit of Administrative Agent (on behalf of itself, the Letter of Credit Guarantors, Issuing Banks and the Lenders), as collateral for the total Letter of Credit Liabilities or other contingent Obligations, cash or deposit account balances pursuant to documentation in form and substance reasonably satisfactory to Administrative Agent, the Letter of Credit Guarantor, and Issuing Bank, if the Issuing Bank is a Lender (which documents are hereby consented to by the Lenders). “Cash Collateral” shall have a meaning correlative to the foregoing and shall include the proceeds of such cash collateral.
“Cash Equivalents”: (a) readily marketable obligations issued or fully guaranteed by the United States of America or any agency thereof having maturities of not more than twelve (12) months from the date of acquisition thereof, (b) commercial paper with maturities of not more than one hundred and eighty (180) days and a published rating of the highest rating attainable by a Rating Agency, (c) certificates of time deposit and bankers’ acceptances having maturities of not more than one hundred and eighty (180) days and repurchase agreements backed by United States government securities, in each case of a commercial bank if (i) such bank has a combined capital and surplus of at least $500,000,000, or (ii) such bank’s debt obligations, or those of a holding company of which it is a Subsidiary, are rated not less than Aa (or the equivalent rating) by a Rating Agency, and (d) U.S. money market funds that invest solely in obligations issued or fully guaranteed by the United States of America or an agency thereof.
6
“CCP”: the meaning set forth in Section 4.23.
“Change in Law”: the occurrence, after the date of this Agreement, of any of the following: (a) the adoption or taking effect of any Law, rule, regulation or treaty, (b) any change in any Law, rule, regulation or treaty or in the interpretation or application thereof by any Governmental Authority or (c) compliance by Administrative Agent or any Lender with any request, guideline or directive (whether or not having the force of Law) of any Governmental Authority made or issued after the date of this Agreement; provided, however, that notwithstanding anything herein to the contrary, (i) the Dodd-Frank Wall Street Reform and Consumer Protection Act and all requests, rules, guidelines, requirements and directives thereunder or issued in connection therewith or in implementation thereof and (ii) all requests, rules, guidelines, requirements and directives promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States or foreign regulatory authorities, in each case pursuant to Basel III, shall be deemed to be a “Change in Law”, regardless of the date enacted, adopted, issued or implemented.
“Change of Control”: (a) with respect to Parent, the result caused by the occurrence of any event or series of events which results in Ultimate Parent owning (beneficially, legally or otherwise), in the aggregate, less than one hundred percent (100%) of any class of the issued and outstanding Equity Interests of Parent; (b) [reserved]; (c) with respect to Logistics and Patient Home Monitoring, Inc., the result caused by the occurrence of any event or series of events which results in Parent owning (beneficially, legally or otherwise), in the aggregate, less than one hundred percent (100%) of any class of the issued and outstanding Equity Interests of such entities; (d) with respect to any other Subsidiary, the result caused by the occurrence of any event or series of events which results in Logistics owning (beneficially, legally or otherwise), in the aggregate, less than one hundred percent (100%) of any class of the issued and outstanding Equity Interests of such Subsidiary; or (e) the pledge, hypothecation or encumbrance of any direct or indirect Equity Interests in any Credit Party.
“Change of Management”: shall occur if Greg Crawford ceases for any reason (other than by reason of death, disability or termination for cause) to (i) act as Chief Executive Officer and Chairman of Ultimate Parent, Parent, each Borrower and each other Credit Party or (ii) otherwise be involved in the day to day operations of Ultimate Parent, Parent, each Borrower and each other Credit Party, in each case to the extent a replacement of such officer reasonably acceptable to Administrative Agent is not appointed within a reasonable time thereafter not to exceed sixty (60) days (or such longer period as agreed to in writing by Administrative Agent as determined in its sole discretion); provided, however, any such change associated with or arising from a change in control of the Ultimate Parent shall not constitute a Change of Management.
“CIT”: CIT Bank, N.A.
“CIT’s System”: CIT’s StuckyNet or other internet-based loan accounting and reporting system.
“CIT Accounts”: the meaning set forth in Section 5.14(b)(i).
“Closing”: the meaning set forth in Section 3.1.
7
“Closing Date”: the date of this Agreement.
“Closing Date Deposit Accounts”: the meaning set forth in Section 2.6(a)(i).
“CMS”: the Centers for Medicare & Medicaid Services or any Governmental Authority succeeding to any of its principal functions.
“Code”: the Internal Revenue Code of 1986, as amended and as it may be further amended from time to time, any successor statutes thereto, and applicable U.S. Department of Treasury regulations issued pursuant thereto in temporary or final form.
“Collateral”: any and all assets and rights and interests in or to property, whether real or personal, tangible or intangible, now or hereafter acquired, in which a Lien is granted or purported to be granted pursuant to the Collateral Documents as security for all or any portion of the Obligations.
“Collateral Access Agreement”: an agreement, satisfactory in form and substance to Administrative Agent in its reasonable credit judgment, by which (a) for any material Collateral located on leased premises, the lessor waives or subordinates any Lien it may have on the Collateral, and agrees to permit Administrative Agent to enter upon the premises and remove the Collateral or to use the premises to store or dispose of the Collateral; (b) for any Collateral held by a warehouseman, processor, shipper or freight forwarder, such Person waives or subordinates any Lien it may have on the Collateral, agrees to hold any Documents in its possession relating to the Collateral as agent for Administrative Agent, and agrees to deliver the Collateral to Administrative Agent upon request; (c) for any Collateral held by a repairman, mechanic or bailee, such Person acknowledges Administrative Agent’s Lien, waives or subordinates any Lien it may have on the Collateral, and agrees to deliver the Collateral to Administrative Agent upon request; and (d) for any Collateral subject to a Licensor’s Intellectual Property rights, the Licensor grants to Administrative Agent the right, vis-à-vis such Licensor, to enforce Administrative Agent’s Liens with respect to the Collateral, including the right to dispose of it with the benefit of the Intellectual Property, whether or not a default exists under any applicable License, in each case as may be amended restated, supplemented or otherwise modified from time to time.
“Collateral Assignment of Material Agreements”: each collateral assignment of material agreements executed by any Borrower or any other Credit Party in favor of Administrative Agent (for the benefit of itself and the Lenders) satisfactory in form and substance to Administrative Agent, as the same may be amended, restated, supplemented or otherwise modified from time to time.
“Collateral Documents”: all agreements, instruments and documents now or hereafter executed and delivered in connection with this Agreement that are intended to create, perfect or evidence Liens in Collateral to Administrative Agent (for the benefit of itself and the Lenders) to secure all or part of the Obligations each in form and substance satisfactory to Administrative Agent, including the Security Agreement, the Pledge Agreement, any Collateral Access Agreements, the Subordination Agreements, the Collateral Assignment of Material Agreements, Custodial Administration Agreements, and Electronic Custodial Administration Agreements, in each case as may be amended, restated, supplemented or otherwise modified from time to time.
“Collections”: with respect to any Account, all cash collections with respect to such Account.
“Compliance Certificate”: a certificate executed by an Authorized Officer of Borrower Representative with respect to the compliance by the Borrowers and the other Credit Parties with the terms, conditions and covenants set forth in this Agreement as of the date of such certificate, which certificate shall be substantially in the form of Exhibit B.
8
“Connection Income Taxes”: Other Connection Taxes that are imposed on or measured by net income (however denominated) or that are franchise Taxes or branch profits Taxes.
“Consolidated Entities”: Ultimate Parent and its Subsidiaries, all of which are Credit Parties; provided, for the avoidance of doubt, any reference herein to Consolidated Entities and their financial statements, results of operations, or similar provisions shall not under any circumstances include the operating results of any entity that is not a Credit Party at such time.
“Contingent Obligation”: as to any Person, any obligation of such Person guaranteeing or intended to guarantee (whether directly or indirectly guaranteed, endorsed, co-made, discounted, or sold with recourse) any Indebtedness of any other Person, or the granting of a Lien on any assets of such Person securing any Indebtedness or other obligation of any other Person. The amount of any Contingent Obligation shall be equal to the amount of the obligation so guarantied or otherwise supported or, if not a fixed and determined amount, the maximum reasonably anticipated net liability in respect thereof (assuming such Person is required to perform thereunder) as determined by the guaranteeing Person in good faith.
“Contract Provider”: any Person or any employee, agent or subcontractor of such Person who provides professional health care services under or pursuant to any contract or other arrangement with any Credit Party.
“Contractual Obligation”: as to any Person, any provision of any security issued by such Person or of any agreement, instrument or other undertaking to which such Person is a party or by which it or any of its property is bound.
“Control”: with respect to any Person, either (a) ownership directly or indirectly of more than 50% of all Equity Interests in such Person or (b) the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of such Person, through the ownership of voting securities, by contract or otherwise. “Controlling” and “Controlled” have meaning correlated thereto.
“Correction”: repair, modification, adjustment, relabeling, destruction or inspection (including patient monitoring) of a product without its physical removal to some other location; or any plan in response to a state or federal notice of violation or deficiency, such as, without limitation, FDA 483 inspection reports, FDA warning letters, and any plants to implement, monitor and audit ongoing compliance with plans of correction.
“Credit Party”: each Borrower and each Guarantor.
“Custodial Administration Agreement”: an agreement in form and substance acceptable to Administrative Agent with a third party vendor approved by Administrative Agent for the storage of chattel paper, documents and instruments owned by Borrowers.
“DEA”: the Drug Enforcement Administration of the United States of America and any successor agency thereof.
9
“Debenture”: that certain C$15,000,000.00 convertible debenture as set forth in that certain Debenture Indenture dated as of March 7, 2019, by and between Ultimate Parent and Computershare Trust Company of Canada, as trustee.
“Debtor Relief Laws”: the Bankruptcy Code of the United States, and all other liquidation, conservatorship, bankruptcy, assignment for the benefit of creditors, moratorium, rearrangement, receivership, insolvency, reorganization, or similar debtor relief Laws from time to time in effect and affecting the rights of creditors generally.
“Default”: the occurrence of any event, fact or circumstance which, with the giving of notice or passage of time, or both, would be an Event of Default.
“Default Excess”: with respect to any Defaulting Lender, the excess, if any, of such Defaulting Lender’s Pro Rata Share of the aggregate outstanding principal amount of all Revolving Loans (calculated as if all Defaulting Lenders (other than such Defaulting Lender) had funded their respective Pro Rata Shares of all Revolving Loans) over the aggregate outstanding principal amount of all Revolving Loans of such Defaulting Lender.
“Default Rate”: a rate of interest equal to two percent (2.0%) per annum greater than the interest rate accruing on the Obligations pursuant to Section 2.13(a) hereof, which Administrative Agent and the Lenders shall be entitled to charge the Borrowers in the manner set forth in Section 2.13(b) of this Agreement.
“Defaulted Account”: an Account as to which (a) the initial ENV has not been received in full as collections within 150 days of the billing date or (b) Administrative Agent reasonably deems uncollectible because of the bankruptcy or insolvency of the payor or any other reason in Administrative Agent’s reasonable discretion.
“Defaulting Lender”: subject to Section 12.15(b), any Lender that (a) has failed to (i) fund all or any portion of its Loans within one (1) Business Day of the date such Loans were required to be funded hereunder unless such Lender notifies Administrative Agent and Borrowers in writing that such failure is the result of such Lender’s determination that one or more conditions precedent to funding (each of which conditions precedent, together with any applicable default, shall be specifically identified in such writing) has not been satisfied, or (ii) pay to Administrative Agent, or any other Lender any other amount required to be paid by it hereunder within one (1) Business Day of the date when due, (b) has notified Borrowers, Administrative Agent in writing that it does not intend to comply with its funding obligations hereunder, or has made a public statement to that effect (unless such writing or public statement relates to such Lender’s obligation to fund a Loan hereunder and states that such position is based on such Lender’s determination that a condition precedent to funding (which condition precedent, together with any applicable default, shall be specifically identified in such writing or public statement) cannot be satisfied), (c) has failed, within two (2) Business Days after written request by Administrative Agent or Borrowers, to confirm in writing to Administrative Agent and Borrowers that it will comply with its prospective funding obligations hereunder (provided that such Lender shall cease to be a Defaulting Lender pursuant to this clause (c) upon receipt of such written confirmation by Administrative Agent and Borrowers), or (d) has, or has a direct or indirect parent company that has, (i) become the subject of a proceeding under any Debtor Relief Law, or (ii) had appointed for it a receiver, custodian, conservator, trustee, administrator, assignee for the benefit of creditors or similar Person charged with reorganization or liquidation of its business or assets, including the Federal Deposit Insurance Corporation or any other state or federal regulatory authority acting in such a capacity; provided that a Lender shall not be a Defaulting Lender solely by virtue of the ownership or acquisition of any Equity Interest in that Lender or any direct or indirect parent company thereof by a Governmental Authority so long as such ownership interest does not result in or provide such Lender with immunity from the jurisdiction of courts within the United States or from the enforcement of judgments or writs of attachment on its assets or permit such Lender (or such Governmental Authority) to reject, repudiate, disavow or disaffirm any contracts or agreements made with such Lender. Any determination by Administrative Agent that a Lender is a Defaulting Lender under any one or more of clauses (a) through (d) above shall be conclusive and binding absent manifest error, and such Lender shall be deemed to be a Defaulting Lender (subject to Section 12.15(b)) upon delivery of written notice of such determination to Borrowers, and each other Lender.
10
“Deposit Account Bank”: a United States depository institution acceptable to Administration Agent.
“Deposit Accounts”: collectively, all Government Receivables Accounts and all Non- Government Receivables Accounts.
“Derivative Obligations”: every obligation of a Person under any forward contract, futures contract, exchange contract, swap, option or other financing agreement or arrangement (including caps, floors, collars and similar agreement), the value of which is dependent upon interest rates, currency exchange rates, commodities or other indices.
“Designated Date”: the meaning set forth in Section 2.3(a).
“Device Application”: a 510(k) premarket notification or premarket approval (PMA) application, as appropriate, as those terms are defined in the FDCA.
“Distributions”: any dividend or other distribution (whether in cash, securities or other property) with respect to any capital stock or other Equity Interest of any Borrower or any other Credit Party, or any payment (whether in cash, securities or other property), including any sinking fund or similar deposit, on account of the purchase, redemption, retirement, acquisition, cancellation or termination of any such capital stock or other Equity Interest or on account of any return of capital to any Borrower’s or any other Credit Party’s stockholders, partners or members (or the equivalent Person thereof).
“Documentation Fees”: Administrative Agent’s standard fees for the use of Administrative Agent’s legal department related to any and all modifications, waivers, releases, legal file reviews or additional collateral with respect to this Agreement, the Collateral and/or the Obligations.
“Documents”: any and all of the “documents” (as that term is defined in the UCC), whether now existing or hereafter arising.
“Dollars” and “$”: lawful money of the United States.
“Early Termination Date”: any date prior to the Revolving Loan Termination Date on which Borrowers, or Administrative Agent or the Required Lenders, terminate this Agreement or the Revolving Facility for any reason or on which the Obligations are accelerated for any reason (including any termination of this Agreement by Administrative Agent or Required Lenders pursuant to Section 9.2 upon the occurrence of an Event of Default).
“Early Termination Fee”: an amount equal to the product obtained by multiplying (a) the Revolving Commitment times (b)(i) two percent (2.0%) if the Early Termination Date occurs on or prior to the first anniversary of the Closing Date, or (ii) one percent (1.0%) if the Early Termination Date occurs after the first anniversary of the Closing Date but on or prior to the date which is the second anniversary of the Closing Date. There shall be no Early Termination Fee if the Early Termination Date occurs after the second anniversary of the Closing Date.
11
“Earn-Out Obligations” with respect to any Person, “earn-outs” and similar payment obligations of such Person, excluding, for the avoidance of doubt, purchase price holdbacks (whether or not in escrow) to secure seller indemnities.
“EBITDA”: for any period, the net income of the Consolidated Entities on a consolidated basis for such period (i) before all interest, tax obligations and depreciation and amortization expense of the Consolidated Entities, (ii) excluding any non-cash income, (iii) before accretion expenses related to Indebtedness issuance costs, (iv) excluding any gain or loss from discontinued operations, (v) excluding non-cash gains and losses with respect to financial derivatives, determined on a consolidated basis for such period, all determined in conformity with IFRS on a basis consistent with the latest audited financial statements of the Consolidated Entities.
“EEA Financial Institution”: (a) any credit institution or investment firm established in any EEA Member Country which is subject to the supervision of an EEA Resolution Authority, (b) any entity established in an EEA Member Country which is a parent of an institution described in clause (a) of this definition, or (c) any financial institution established in an EEA Member Country which is a subsidiary of an institution described in clauses (a) or (b) of this definition and is subject to consolidated supervision with its parent.
“EEA Member Country”: any of the member states of the European Union, Iceland, Liechtenstein, and Norway.
“EEA Resolution Authority”: any public administrative authority or any person entrusted with public administrative authority of any EEA Member Country (including any delegee) having responsibility for the resolution of any EEA Financial Institution.
“Electronic Custodial Administration Agreement”: an agreement in form and substance acceptable to Administrative Agent with a third party vendor approved by Administrative Agent for the storage of electronic chattel paper, which shall provide control (as defined in the UCC) by Administrative Agent of such electronic chattel paper pursuant to Article 9 of the UCC.
“Eligible Account”: subject to the criteria below, an Account of any Borrower that was generated in the ordinary course of such Borrower’s business and consistent with past practices which was generated originally in the name of such Borrower and not acquired via assignment or otherwise, and that Administrative Agent, in its reasonable credit judgment, deems to be an Eligible Account. The net amount of Eligible Accounts at any time shall be (a) the face amount of such Eligible Accounts as originally billed minus (b) all cash collections and other proceeds of such Account received from or on behalf of the Account Debtor thereunder as of such date and any and all returns, rebates, discounts (which may, at Administrative Agent’s option, be calculated on shortest terms), credits, allowances or excise taxes of any nature at any time issued, owing, claimed by Account Debtors, granted, outstanding or payable in connection with such Accounts at such time. Without limiting the generality of the foregoing, no Account shall be an Eligible Account if:
(a) the Account or any portion of the Account is payable by a Person other than a Third-Party Payor;
12
(b) the Account is an obligation of an Account Debtor that has suspended business, made a general assignment for the benefit of creditors, is unable to pay its debts as they become due or is subject to an Insolvency Proceeding, or the Account is an Account as to which any facts, events or occurrences exist which could reasonably be expected to impair the validity, enforceability or collectability of such Account or reduce the amount payable or delay payment thereunder;
(c) the Account Debtor is a natural person (i.e. an individual);
(d) the Account Debtor is an Affiliate of any Credit Party;
(e) any representation and warranty contained in any Loan Document with respect to such Account is not true and correct;
(f) the Account remains unpaid more than one hundred and fifty (150) days past the date the applicable services were rendered;
(g) more than fifty percent (50%) of the aggregate balance of all Accounts owing from the Account Debtor (and its Affiliates but not including any Government Account Debtor making payments under Medicare or Medicaid) obligated on the Account are outstanding more than one hundred and fifty (150) days after the applicable services were rendered;
(h) without limiting the provisions of clause (g) above, fifty percent (50%) or more of the aggregate unpaid Accounts from the Account Debtor (but not including any Government Account Debtor making payments under a Government Reimbursement Program) obligated on the Account are not deemed Eligible Accounts hereunder for any reason;
(i) to the extent that the Account and all other Accounts owed by any particular Account Debtor and its Affiliates (but not including any Government Account Debtor making payments under a Government Reimbursement Program) exceed fifty percent (50%) of the net amount of all Eligible Accounts (calculated as set forth above) at any one time (including Accounts from any Government Account Debtor making payments under a Government Reimbursement Program);
(j) the Account is subject to any defense, set-off, recoupment, counterclaim, deduction, discount, credit, chargeback, freight claim, allowance, or adjustment of any kind (but such ineligibility shall extend only to the extent of such defense, set-off, recoupment, counterclaim, deduction, discount, credit, chargeback, freight claim, allowance, or adjustment), or the Borrower owning such Account is not able to bring suit or otherwise enforce its remedies against the Account Debtor through administrative or judicial process, as applicable;
(k) the Account involves (i) a workers’ compensation claim which is not covered by a Third-Party Payor or (ii) services delivered for injury sustained in a motor vehicle accident, the repayment of which is contingent on litigation;
(l) the applicable Account Debtor for such Account is any Governmental Authority, and, following a written request by Administrative Agent to Borrowers, rights to payment of such Account have not been assigned to Administrative Agent (for the benefit of itself and the Lenders) pursuant to the Federal Assignment of Claims Act, 31 U.S.C. § 3727 et seq. (as amended from time to time), or all other applicable statutes or regulations respecting the assignment of Government Accounts have not been complied with (for example, with respect to all Accounts payable directly by a Government Account Debtor);
13
(m) if the Account arises from the performance of services, the services have not actually been performed, or the services were undertaken in violation of any Applicable Law, or the Account represents a progress billing for which services have not been fully and completely rendered;
(n) the Account includes late charges or finance charges (but only such portion of the Account shall be ineligible);
(o) the Account arises out of a cost report settlement or constitutes a disproportionate share hospital payment;
(p) the Account is subject to a Lien other than a Permitted Lien, or the Account is not subject to a valid and enforceable First Priority Lien in favor of Administrative Agent (for the benefit of itself and the Lenders) (subject to clause (t) of this definition);
(q) the Account arises out of the sale of any Inventory upon which any other Person holds, claims or asserts a Lien that has not been subordinated to the prior Lien of Administrative Agent pursuant to a Subordination Agreement; (subject to clause (t) of this definition)
(r) which, if such Account is an account receivable or related general intangible within the meaning of the UCC, or is a right to payment under a policy of insurance or proceeds thereof, is not evidenced by any instrument or chattel paper, unless (i) in the case of a Rental Agreement, such Rental Agreement conspicuously contains the stamp or legend described in the definition of “Acceptable Rental Agreement”, and (ii) in the case of any other chattel paper or any instrument, the instrument has been delivered to Administrative Agent’s possession (either directly or by transfer to Administrative Agent’s account at an approved records storage facility subject to a Custodial Administration Agreement), or in the case of electronic chattel paper, has been delivered to Agent’s control pursuant to an approved Electronic Custodial Administration Agreement; provided, Administrative Agent may provide prior written consent (such consent as determined in Administrative Agent’s sole discretion) to permit such Account to be an Eligible Account without meeting the requirements set forth in clauses (i) and (ii) of this clause (r), subject in all respects to Administrative Agent’s continuing right to withhold from the Borrowing Base reserves as set forth in Section 2.2(b));
(s) which, if the Account is an obligation pursuant to a Rental Agreement, the Rental Agreement constitutes an Acceptable Rental Agreement;
(t) which, if the Account is an obligation pursuant to an Acceptable Rental Agreement with respect to equipment, inventory or other property that a Borrower leases pursuant to a lease (a “Vendor Lease”) with a third-party, such underlying Vendor Lease (i) does not expire within the earlier of (x) six (6) months from the date of determination of the Borrowing Base, (y) the maturity date of the Acceptable Rental Agreement, or (z) that portion of six (6) months for which the Eligible Prospective Rental Contract Stream is calculated in connection with such Acceptable Rental Agreement and (ii) the Inventory Supplier with respect to any such Vendor Lease has entered into an Inventory Subordination Agreement; provided, Administrative Agent may provide prior written consent (such consent as determined in Administrative Agent’s sole discretion) to permit such Account to be an Eligible Account without obtaining the Inventory Subordination Agreement otherwise required pursuant to this clause (t), subject in all respects to Administrative Agent’s continuing right to withhold from the Borrowing Base reserves as set forth in Section 2.2(b)); or
(u) the Account or Account Debtor fails to meet such other specifications and requirements which may from time to time be established by Administrative Agent in its reasonable credit judgment.
14
“Eligible Prospective Rental Contract Stream”: on any date of determination, the aggregate amount of Eligible Accounts due and payable to Borrowers pursuant to Borrowers’ Acceptable Rental Agreements for which the invoice will be generated and services will be performed within the earlier of (a) six (6) months from the date of determination, (b) the maturity date of such Acceptable Rental Agreement, or (c) the maturity or termination date of any Vendor Lease in connection therewith; provided, the Inventory Supplier with respect to any such Vendor Lease shall have entered into an Inventory Subordination Agreement. The amount calculated as Eligible Prospective Rental Contract Streams shall be without duplication of any other Eligible Account otherwise included in the Borrowing Base.
“Environmental Laws”: any and all Laws pertaining to the environment, natural resources, pollution, health (including any environmental clean-up statutes and all regulations adopted by any local, state, federal or other Governmental Authority, and any statute, ordinance, code, order, decree, Law, rule or regulation all of which pertain to or impose liability or standards of conduct concerning medical waste or medical products, equipment or supplies), safety or cleanup that apply to any Credit Party and relate to Hazardous Materials, including the Comprehensive Environmental Response, Compensation and Liability Act of 1980 (42 U.S.C. § 9601 et seq.), the Resource Conservation and Recovery Act of 1976 (42 U.S.C. § 6901 et seq.), the Federal Water Pollution Control Act (33 U.S.C. § 1251 et seq.), the Hazardous Materials Transportation Act (49 U.S.C. § 5101 et seq.), the Clean Air Act (42 U.S.C. § 7401 et seq.), the Federal Insecticide, Fungicide and Rodenticide Act (7 U.S.C. § 136 et seq.), the Emergency Planning and Community Right-to-Know Act (42 U.S.C. § 11001 et seq.), the Occupational Safety and Health Act (29 U.S.C. § 651 et seq., to the extent it regulates occupational exposure to Hazardous Materials), the Residential Lead-Based Paint Hazard Reduction Act (42 U.S.C. § 4851 et seq.), any analogous state or local Laws, any amendments thereto, and the regulations promulgated pursuant to said Laws, together with all amendments from time to time to any of the foregoing and judicial interpretations thereof.
“Environmental Notice”: a notice (whether written or oral) from any Governmental Authority or other Person of any possible material noncompliance with, investigation of a possible material violation of, litigation relating to, or potential fine or liability under any Environmental Law, or with respect to any material Environmental Release, environmental pollution or Hazardous Materials, including any complaint, summons, citation, order, claim, demand or request for correction, remediation or otherwise.
“Environmental Release”: a release of Hazardous Materials as defined in or under any Environmental Law.
“Equity Interests”: with respect to any Person, all of the shares of capital stock of (or other ownership or profit interests in, including membership interests in) such Person, whether voting or non-voting, and all warrants, options or other rights (regardless of how designated) for the purchase or acquisition from such Person of such shares of capital stock of (or other ownership or profit interests in, including membership interests in or beneficial interest in a trust of) such Person.
“ERISA”: the Employee Retirement Income Security Act of 1974, as amended from time to time, and the rules and regulations promulgated thereunder.
“ERISA Affiliate”: all members of a controlled group of corporations and all trades and business (whether or not incorporated) under common control and all other entities which, together with each Borrower and each other Credit Party, are treated as a single employer under any or all of Section 414(b), (c), (m) or (o) of the Code or Section 4001(b) of ERISA.
15
“Estimated Net Value” or “ENV”: on any date of calculation with respect to any Account an amount equal to the anticipated cash collections as calculated by Administrative Agent, in its reasonable discretion based on historical collections and/or identifiable occurrences which would impact future collections, except that if Administrative Agent determines that all payor payments with respect to an Account have been made or if an Account has become a Defaulted Account, the ENV of such Account shall be zero.
“EU Bail-In Legislation Schedule”: the EU Bail-In Legislation Schedule published by the Loan Market Association (or any successor Person), as in effect from time to time.
“Event of Default”: the meaning set forth in Section 9.1.
“Excess Availability”: as of any date of determination, the amount that Borrowers are entitled to borrow as Revolving Loans under Section 2.1 of this Agreement (after giving effect to the Outstanding Amount).
“Excluded Accounts”: any deposit account that maintains a balance on deposit at any time of not more than $25,000; provided, that the aggregate balance on deposit at any time in all Excluded Accounts shall not exceed at any time $100,000.
“Excluded Swap Obligation”: any and all of each Credit Party’s Swap Obligations if, and to the extent that, all or a portion of the guarantee of such Credit Party of, or the grant by such Credit Party of a Lien to secure, such Swap Obligation (or any guarantee thereof) is or becomes illegal under the Commodity Exchange Act (or the application or official interpretation thereof) by virtue of such Credit Party’s failure for any reason to constitute an “eligible contract participant” as defined in the Commodity Exchange Act (determined after giving effect to any “keepwell, support or other agreement” for the benefit of such Credit Party and any and all guarantees of such Credit Party’s Swap Obligations by the other Credit Parties) at the time the guarantee of such Credit Party, or grant by such Credit Party of a Lien, becomes effective with respect to such Swap Obligation.
“Excluded Taxes”: any of the following Taxes imposed on or with respect to a Recipient or required to be withheld or deducted from a payment to a Recipient, (a) Taxes imposed on or measured by net income (however denominated), franchise Taxes, and branch profits Taxes, in each case, (i) imposed as a result of such Recipient being organized under the Laws of, or having its principal office or, in the case of any Lender, its applicable lending office located in, the jurisdiction imposing such Tax (or any political subdivision thereof) or (ii) that are Other Connection Taxes, (b) in the case of a Lender, U.S. federal withholding Taxes imposed on amounts payable to or for the account of such Lender with respect to an applicable interest in a Loan or Revolving Commitments pursuant to a Law in effect on the date on which (i) such Lender acquires such interest in the Loans or Revolving Commitments (other than pursuant to an assignment request by the Borrowers under Section 12.15) or (ii) such Lender changes its lending office, except in each case to the extent that, pursuant to Section 2.18, amounts with respect to such Taxes were payable either to such Lender’s assignor immediately before such Lender became a party hereto or to such Lender immediately before it changed its lending office, (c) Taxes attributable to such Recipient’s failure to comply with Section 2.18 and (d) any U.S. federal withholding Taxes imposed under FATCA.
“Expenses”: (a) any and all costs, fees and expenses of Administrative Agent in connection with the analysis, negotiation, preparation, execution, administration, syndication, delivery and termination of this Agreement, the other Loan Documents and the documents and instruments referred to herein and therein, and any amendment, restatement, supplement, waiver or consent relating hereto or thereto, whether or not any such amendment, restatement, supplement, waiver or consent is executed or becomes effective, (b) any and all costs, fees and expenses of Administrative Agent and each Lender in connection with the enforcement of Administrative Agent’s and Lenders’ rights hereunder (including field examination expenses), or the collection of any payments owing from, the Credit Parties hereunder and/or under the other Loan Documents or the protection, preservation or defense of the rights of Administrative Agent and Lenders hereunder and under the other Loan Documents, and (c) any and all costs, fees and expenses of Administrative Agent and each Lender in connection with any refinancing or restructuring of the credit arrangements provided hereunder and under the other Loan Documents in the nature of a “work-out” or of any Insolvency Proceedings, or otherwise, and including, with respect to clauses (a), (b) and (c) above, any Lien, litigation and other search costs, the fees, expenses and disbursements of legal counsel for Administrative Agent and Lenders, including the charges of internal legal counsel, any fees or expenses incurred by Administrative Agent under Section 11.15 for which any Borrower or any other Credit Party are obligated thereunder, and charges of any expert, appraiser, auditor or other consultant to Administrative Agent and Lenders.
16
“Facilities”: at any time, the facilities and real properties owned, leased, managed or operated by any Credit Party or any Subsidiary, from which any Credit Party or any Subsidiary provides or furnishes goods or services.
“FATCA”: Sections 1471 through 1474 of the Code as of the date of this Agreement (or any amended or successor version that is substantively comparable and not materially more onerous to comply with), any current or future regulations or official interpretations thereof and any agreements entered into pursuant to Section 1471(b) of the Code and any fiscal or regulatory legislation, rules or practices adopted pursuant to any intergovernmental agreement, treaty or convention among Governmental Authorities and implementing such Sections of the Code.
“FDA”: the Food and Drug Administration of the United States of America or any successor entity thereto.
“FDCA”: the Federal Food, Drug, and Cosmetic Act, as amended, 21 U.S.C. Section 301 et seq. and all regulations promulgated thereunder.
“Federal Funds Effective Rate”: for any day, the weighted average (rounded upwards, if necessary, to the next 1/100 of 1%) of the rates on overnight Federal funds transactions with members of the Federal Reserve System arranged by Federal funds brokers on such date, as published on the next succeeding Business Day by the Federal Reserve Bank of New York, or, if such rate is not so published for any day that is a Business Day, the average (rounded upwards, if necessary, to the next 1/100 of 1%) of the quotations for such day for such transactions received by Administrative Agent from three Federal funds brokers of recognized standing selected by it.
“Fee Letter”: the meaning set forth in Section 2.14(a).
“First Priority”: with respect to any Lien purported to be created in any Collateral pursuant to any Collateral Document, that such Lien is the only Lien to which such Collateral is subject other than Permitted Liens that are non-consensual Permitted Liens or those purchase money Liens expressly permitted hereunder.
“Fiscal Quarter”: the fiscal period of each Borrower and the other Credit Parties ending on March 31, June 30, September 30 and December 31 in each Fiscal Year.
“Fiscal Year”: the fiscal year of each Borrower and the other Credit Parties ending on September 30 in each calendar year.
17
“Fixed Charge Coverage Ratio”: for any period, the quotient (expressed as a ratio) obtained by dividing (a) Adjusted EBITDA of the Consolidated Entities for such period minus unfinanced Capital Expenditures, minus all federal, state and local income tax expenses due and payable by the Consolidated Entities on a consolidated basis during such period, as incurred by the Consolidated Entities on a consolidated basis during such period, by (b) Fixed Charges of the Consolidated Entities for such period.
“Fixed Charges”: for any period, the sum of, without duplication, (a) all interest obligations (including the interest component of Capital Leases) of the Consolidated Entities on a consolidated basis paid or due during such period, (b) the amount of all scheduled fees paid to Administrative Agent and the Lenders during such period, (c) the amount of principal repaid or scheduled to be repaid on the other Indebtedness of the Borrowers on a consolidated basis (other than the Revolving Loans) during such period, (d) all Distributions paid to equityholders on a consolidated basis during such period, and (e) any payments during such period with respect to any Capital Lease. Notwithstanding anything herein to the contrary, the determination of interest obligations incurred pursuant to this Agreement and the fee incurred pursuant to Section 2.14(b) herein, for any Test Period ending on or prior to March 31, 2021, shall be calculated on an annualized basis as follows: (i) for Fiscal Quarter ending September 30, 2020, the amount of such obligations for such Fiscal Quarter multiplied by four (4), (ii) for Fiscal Quarter ending December 31, 2020, the amount of such obligations for the six (6) month period ending December 31, 2020 multiplied by two (2), and (iii) for Fiscal Quarter ending March 31, 2020, the amount of such obligations for the nine (9) month period ending March 31, 2020 multiplied by four thirds (4/3).
“Foreign Lender”: (a) if any Borrower is a U.S. Person, a Lender that is not a U.S. Person, and (b) if any Borrower is not a U.S. Person, a Lender that is resident or organized under the Laws of a jurisdiction other than that in which such Borrower is resident for tax purposes.
“Fronting Exposure”: at any time there is a Defaulting Lender, with respect to any Issuing Bank (or the Letter of Credit Guarantor, as the case may be), such Defaulting Lender’s Pro Rata Share of the outstanding Letter of Credit Liabilities other than Letter of Credit Liabilities as to which such Defaulting Lender’s participation obligation has been reallocated to other Lenders or Cash Collateralized in accordance with the terms hereof.
“Funding Date”: the meaning set forth in Section 2.3(a).
“Government Account Debtor”: an Account Debtor that is a Government Reimbursement Program.
“Government Accounts”: Accounts on which any federal or state governmental unit or any fiscal intermediary or carrier is the payor.
“Government Lists”: (a) the Specially Designated Nationals and Blocked Persons lists maintained by Office of Foreign Assets Control (“OFAC”), (b) any other list of terrorists, terrorist organizations or narcotics traffickers maintained pursuant to any of the Rules and Regulations of OFAC that Administrative Agent notified Borrowers in writing is now included in “Government Lists”, or (c) any similar lists maintained by the United States Department of State, the United States Department of Commerce or any other Governmental Authority or pursuant to any Executive Order of the President of the United States of America that Administrative Agent notified Borrowers in writing is now included in “Government Lists”.
18
“Government Receivables Account”: a deposit account maintained by a Borrower with the Deposit Account Bank or CIT Bank, N.A. into which all Collections of Accounts on which Government Account Debtors are obligated are paid directly or deposited into.
“Government Reimbursement Program”: (a) Medicare (including any Medicare managed care program), (b) Medicaid (including any Medicaid managed care program), (c) TRICARE, (d) the Federal Employees Health Benefit Program under 5 U.S.C. §§ 8902 et seq., (e) the Civilian Health and Medical Program of the Department of Veteran Affairs, (f) any other Federal, state or local health care reimbursement program, and (g) any agent, administrator, intermediary or carrier for any of the foregoing.
“Governmental Authority”: any court, board, agency, commission, office or authority of any nature whatsoever for any governmental unit (federal, state, county, district, municipal, city or otherwise) now or hereafter in existence.
“Governmental Authorization”: any permit, license, registration, authorization, certificate, accreditation, plan, directive, consent order or consent decree of or from, or notice to, any Governmental Authority.
“Guarantor”: Parent, and each Person who on or after the Closing Date guarantees the payment and performance of the Obligations, including those listed on Schedule 1 hereto.
“Guaranty”: that certain Guaranty, dated as of the Closing Date, executed by each Guarantor in favor of Administrative Agent (for the benefit of itself and the Lenders), and each other guaranty agreement executed by any Guarantor in favor of Administrative Agent (for the benefit of itself and the Lenders), pursuant to which such Guarantor guarantees the payment and performance of the Obligations, in form and substance satisfactory to Administrative Agent, in each case as the same may be amended, restated, replaced or otherwise modified from time to time.
“Hazardous Materials”: any and all explosive or radioactive substances or wastes and all hazardous or toxic substances, wastes or other pollutants, including petroleum or petroleum distillates, asbestos or asbestos-containing materials, polychlorinated biphenyls, radon gas, infectious or medical wastes and all other substances or wastes of any nature regulated pursuant to any Environmental Law.
“Healthcare Authorizations”: any and all Governmental Authorizations and permits, licenses, provider agreements, authorizations, approvals, certificates, certificates of need, accreditations and plans of third-party accreditation agencies (such as the Joint Commission), provider agreements with Government Reimbursement Programs and Non-Government Payors, in each case that are (a) necessary to enable any Borrower or any other Credit Party to engage in the Healthcare Services, participate in and receive payment under Government Reimbursement Programs and plans of Non-Government Payors to conduct the Borrowers’ and other Credit Parties’ business and operations as presently conducted or (b) issued or required under any Healthcare Laws to continue to conduct the business of any Borrower or any other Credit Party as it is conducted on the date of this Agreement or applicable to any Device Application (including all Governmental Authorizations, permits, licenses and approvals issued by the FDA or any other Governmental Authority necessary for the testing, manufacturing, marketing or sale of any Product by any Borrower or any other Credit Party as such activities are being conducted by such Person with respect to such Product at such time), including establishment registrations, device listings, Investigational Device Exemptions (IDEs), 510(k) exemptions, 510(k) clearances, and PMA approvals, as those terms are defined in the FDCA and implementing regulations, and those issued by state governments. This shall include all state government registrations and certifications applicable to the operation of the business of the Borrowers or any other Credit Parties necessary for the manufacture or repair of respiratory therapy healthcare products and related Products.
19
“Healthcare Laws”: (a) any and all federal, state and local fraud and abuse laws, including (i) the federal Anti-Kickback Statute (42 U.S.C. § 1320a-7(b)), (ii) the Stark Law (42 U.S.C. § 1395nn and §1395(q)), (iii) the civil False Claims Act (31 U.S.C. § 3729 et seq.), (iv) Sections 1320a-7 and 1320a-7a of Title 42 of the United States Code, and (v) the regulations promulgated pursuant to such statutes; (b) the FDCA; (c) the Health Insurance Portability and Accountability Act of 1996 (Pub. L. No. 104-191) and the regulations promulgated pursuant thereto; (d) laws, rules and regulations governing Medicare and Medicaid; (e) the Medicare Prescription Drug, Improvement, and Modernization Act of 2003 (Pub. L. No. 108-173) and the regulations promulgated pursuant thereto; (f) quality, safety, life safety, and accreditation standards and requirements of all applicable state laws or regulatory bodies; (g) any Applicable Law relating to the Borrowers’ or any other Credit Parties’ ownership, management, or operation of a healthcare facility or business, or assets used in connection therewith; (h) any Applicable Law relating to the billing or submission of claims, collection of accounts receivable, underwriting the cost of, or provision of management or administrative services in connection with, any and all of the foregoing, by any Borrower or any other Credit Party; (i) the Patient Protection and Affordable Care Act (Pub. L. 111-148) and (j) any and all other applicable healthcare laws, regulations, manual provisions, policies and administrative guidance, each of (a) through (j) as may be amended from time to time.
“Healthcare Services”: providing, or arranging to provide or administering, managing or monitoring healthcare services including the provision of home health equipment and supplies, or any business or activity that is reasonably similar thereto or a reasonable extension, development or expansion thereof or ancillary thereto.
“Health Technology Acquisition”: the acquisition by Logistics of the membership interests of Health Technology Resources, L.L.C. pursuant to that certain Purchase Agreement, dated as of August 17, 2020 by and among Logistics, Health Technology Resources, L.L.C., and [REDACTED - vendors name].
“HHS”: the United States Department of Health and Human Services and any successor agency.
“HIPAA/HITECH”: individually or collectively, the Health Insurance Portability and Accountability Act of 1996, commonly referred to as “HIPAA”, and the Health Information Technology for Economic and Clinical Health Act, commonly referred to as “HITECH”, as the same may be amended, modified or supplemented from time to time, and any successor statute thereto, and any and all rules or regulations promulgated from time to time thereunder.
“HIPAA/HITECH Compliance Date”: the meaning set forth in Section 4.21.
“HIPAA/HITECH Compliance Plan”: the meaning set forth in Section 4.21.
“HIPAA/HITECH Compliant”: the meaning set forth in Section 4.21.
“IFRS”: the International Financial Reporting Standards as issued by the International Accounting Standards Board and interpretations issues by the International Financial Reporting Committee from time to time, as in effect from time to time and any successor standards or bodies thereto.
20
“Indebtedness”: without duplication, (a) all indebtedness of such Person for borrowed money, whether or not evidenced by bonds, debentures, notes or similar instruments, (b) all Capitalized Lease Obligations of such Person, (c) all obligations of such Person to pay the deferred purchase price of property or services (excluding trade accounts payable in the ordinary course of business), (d) all obligations, contingent or otherwise, with respect to the face amount of all letters of credit (whether or not drawn) and banker’s acceptances issued for the account of such Person, (e) all Derivative Obligations of such Person, (f) all Contingent Obligations, (g) all liabilities of any partnership or joint venture of which such Person is a general partner or joint venturer, (h) all obligations of such Person to make any payment in connection with any warrants or any other Equity Interests including any put, redemption and mandatory dividends, of such Person or any Affiliate thereof and (i) all indebtedness secured by a Lien on the property of such Person, whether or not such indebtedness shall have been assumed by such Person.
“Indemnified Taxes”: (a) Taxes, other than Excluded Taxes, imposed on or with respect to any payment made by or on account of any obligation of any Credit Party under any Loan Document and (b) to the extent not otherwise described in (a), Other Taxes.
“Ineligible Assignee”: (a) any natural person (or a holding company, investment vehicle or trust for, or owned and operated for the primary benefit of, a natural person), (b) any Credit Party or any of its Affiliates or (c) any Defaulting Lender or any Affiliate of any Defaulting Lender or any Person who, upon becoming a Lender hereunder, would constitute a Defaulting Lender or an Affiliate thereof.
“Insolvency Proceeding”: with respect to any Person, (a) a case, action or proceeding with respect to such Person: (i) before any court or any other Governmental Authority under any Debtor Relief Law, or (ii) for the appointment of a receiver, liquidator, assignee, custodian, trustee, sequestrator, conservator (or similar official) of any Person or otherwise relating to the liquidation, dissolution, winding-up or relief of such Person, or (b) any general assignment for the benefit of creditors, composition, marshaling of assets for creditors, or other, similar arrangement in respect of such Person’s creditors generally or any substantial portion of its creditors; undertaken under any Law.
“Intellectual Property”: all intellectual and similar property of a Person, including inventions, designs, patents, patent applications, copyrights, trademarks, service marks, trade names, trade secrets, confidential or proprietary information, customer lists, know-how, software and databases; all embodiments or fixations thereof and all related documentation, registrations and franchises; all books and records describing or used in connection with the foregoing; and all Licenses or other rights to use any of the foregoing.
“Interest Period”: as to each LIBOR Loan, the period commencing on the date such LIBOR Loan is disbursed or converted to or continued as a LIBOR Loan and ending on the date one (1) month thereafter, provided, that:
(a) the first Interest Period for each LIBOR Loan shall end on the last day of the calendar month in which the LIBOR Loan was initially made;
(b) any Interest Period that would otherwise end on a day that is not a Business Day shall be extended to the next succeeding Business Day unless such Business Day falls in another calendar month, in which case such Interest Period shall end on the next preceding Business Day;
(c) any Interest Period that begins on the last Business Day of a calendar month (or on a day for which there is no numerically corresponding day in the calendar month at the end of such Interest Period) shall end on the last Business Day of the calendar month at the end of such Interest Period; and
21
(d) no Interest Period shall extend beyond the Revolving Loan Termination Date.
“Inventory”: any and all “inventory” (as that term is defined in Article 9 of the UCC) of any Person, whether now existing or hereafter arising.
“Inventory Subordination Agreement”: each Subordination Agreement with any of Borrower’s Inventory Suppliers in form and substance satisfactory to Administrative Agent in its sole discretion.
“Inventory Suppliers”: the financing companies, lenders and/or leasing companies set forth on Schedule 4.16 that provide equipment or inventory financing or leasing services to a Borrower, as such Schedule shall be updated following the Closing Date pursuant to Section 8.3(g)(i)(E).
“Investment”: as to any Person, (a) any direct or indirect acquisition or investment by such Person, whether by means of the purchase or other acquisition of the properties and assets or Equity Interests or other securities of another Person, (b) any loan, advance or capital contribution to, assumption of debt of, or purchase or other acquisition of any other debt or Equity Interests in, another Person, including any partnership, membership or joint venture interest in such other Person and any arrangement pursuant to which the investor provides a Contingent Obligation for such other Person, or (c) the purchase or other acquisition (in one transaction or a series of transactions) of assets of another Person that constitute a business unit.
“IRS”: the United States Internal Revenue Service, or any Governmental Authority succeeding to any of its principal functions.
“ISP”: with respect to any standby Letter of Credit, the “International Standby Practices 1998” published by the Institute of International Banking Law & Practice (or such later version thereof as may be in effect at the time of issuance).
“Issuing Bank”: either (a) any Lender that issues Letters of Credit hereunder, in its capacity as issuer of Letters of Credit hereunder, or (b) any bank acceptable to and approved by Administrative Agent that issues Letters of Credit hereunder supported by a guaranty or risk participation agreement issued by CIT or Administrative Agent.
“Joint Commission”: the Joint Commission, formerly known as the Joint Commission on Accreditation of Healthcare Organizations or other similar agency.
“Laws”: collectively, all international, foreign, federal, state and local statutes, laws (including common law), treaties, rules, guidelines, regulations, ordinances, codes and administrative or judicial precedents, authorities, rulings, decrees, judgments, writs, injunctions, orders, awards or opinions, including the interpretation or administration thereof by any Governmental Authority charged with the enforcement, interpretation or administration thereof, in each case whether or not having the force of law.
“Lease Agreement”: each lease as set forth on Schedule 1.1(a), as each same may be amended, restated, replaced, or otherwise modified from time to time in accordance with the terms and conditions of this Agreement.
“Lender Affiliate”: with respect to any Lender, any Person which, directly or indirectly, is in Control of, is Controlled by, or is under common Control with such Lender.
22
“Lenders”: the meaning set forth in the introductory paragraph hereto, and including the Revolving Lenders.
“Letters of Credit”: all letters of credit issued for or on behalf of a Borrower with the assistance of the Revolving Lenders (acting through Administrative Agent) by an Issuing Bank in accordance with Section 2.24 hereof.
“Letter of Credit Guarantor”: Administrative Agent or one of its Affiliates who agrees (in its sole discretion), on behalf of the Revolving Lenders, to provide a Letter of Credit Guaranty.
“Letter of Credit Guaranty”: any guaranty or similar agreement delivered by Administrative Agent, on behalf of the Revolving Lenders, to an Issuing Bank of a Borrower’s Reimbursement Obligation under such Issuing Bank’s reimbursement agreement, application for letter of credit or other like document.
“Letter of Credit Guaranty Fee”: the fee that Administrative Agent, for the benefit of the Lenders, may charge the Borrowers under Section 2.14(c) of this Agreement for issuing a Letter of Credit Guaranty or otherwise assisting the Borrowers in obtaining Letters of Credit.
“Letter of Credit Liabilities”: at any time of calculation, the sum of the following (without duplication): (a) the amount then available for drawing under all outstanding Letters of Credit, in each case without regard to whether any conditions to drawing thereunder can then be met, and (without duplication) the amount of any outstanding Letter of Credit Guaranty related to a Letter of Credit, and (b) the aggregate of all amounts under the foregoing not reimbursed by Borrowers. For all purposes of this Agreement, if as of any date of determination a Letter of Credit has expired by its terms but any amount may still be drawn thereunder by reason of the operation of Rule 3.14 of the ISP, such Letter of Credit shall be deemed to be “outstanding” in the amount that remains available to be drawn. The Letter of Credit Liability of any Revolving Lender at any time shall be equal to its Pro Rata Share of the total Letter of Credit Liabilities at such time.
“Letter of Credit Sublimit”: an amount equal to the lesser of (a) the total Revolving Commitments and (b) $2,000,000. The Letter of Credit Sublimit is part of, and not in addition to, the total Revolving Commitments.
“LIBO Rate”: for any Interest Period with respect to any LIBOR Loan, the higher of (a) 0.50% and (b) a rate per annum equal to:
(i) the rate determined by Administrative Agent to be the London Interbank Offered Rate benchmark rate which is calculated and distributed by the ICE Benchmark Administration Data Service (“ICE”) (or any successor thereto) for deposits in Dollars (for delivery on the first (1st) day of such Interest Period) with a term equivalent to such Interest Period, determined as of approximately 11:45 a.m. (London time) (or such other time as confirmed by ICE (or any successor thereto)) two (2) Business Days prior to the first (1st) day of such Interest Period as displayed on such day and time on pages LIBOR01 or LIBOR02 of the Reuters screen that displays such rate (or, in the event such rate does not appear on a Reuters page or screen, on any successor or substitute page on such screen that displays such rate, or on the appropriate page of such other information service that publishes such rate from time to time as selected by Administrative Agent in its reasonable discretion) (the “LIBO Screen Rate”), or
(ii) if the rate referenced in the preceding clause (i) does not appear through such service or such service shall not be available, the rate per annum equal to the rate determined by Administrative Agent to be the offered rate which is calculated and distributed daily by ICE (or any successor thereto) as an average ICE Benchmark Administration Limited Interest Settlement Rate for deposits in Dollars (for delivery on the first (1st) day of such Interest Period) with a term equivalent to such Interest Period, determined as of approximately 11:45 a.m. (London time) two (2) Business Days prior to the first (1st) day of such Interest Period, or
23
(iii) if the rates referenced in the preceding clauses (i) and (ii) are not available, the rate per annum determined by Administrative Agent as the rate of interest at which deposits in Dollars for delivery on the first day of such Interest Period in same day funds in the approximate amount of the LIBOR Loan being made, continued or converted by JPMorgan Chase Bank and with a term equivalent to such Interest Period would be offered by JPMorgan Chase Bank’s London Branch (or such other major bank as is acceptable to Administrative Agent if JPMorgan Chase Bank is no longer offering to acquire or allow deposits in the London interbank eurodollar market) to major banks in the London interbank eurodollar market at their request at approximately 11:45 a.m. (London time) two (2) Business Days prior to the first day of such Interest Period.
“LIBO Screen Rate”: the meaning set forth in clause (b)(i) of the definition of “LIBO Rate”.
“LIBOR Loan”: any Loan which accrues interest solely by reference to the LIBO Rate plus the Applicable Margin, in accordance with the terms of this Agreement.
“License”: any license or agreement under which any Borrower or any other Credit Party is authorized to use Intellectual Property in connection with any manufacture, marketing, distribution or disposition of Collateral, any use of property, the operation of any Facility or any other conduct of its business.
“Licensor”: any Person from whom any Borrower or any other Credit Party obtains the right to use any Intellectual Property.
“Lien”: any mortgage, pledge, hypothecation, assignment, deposit arrangement, encumbrance, lien (statutory or other), charge, or preference, priority or other security interest or preferential arrangement in the nature of a security interest of any kind or nature whatsoever (including any conditional sale or other title retention agreement, any easement, right of way or other encumbrance on title to real property, and any financing lease having substantially the same economic effect as any of the foregoing).
“Loan Documents”: collectively, this Agreement, the Collateral Documents, any Revolving Note, the Fee Letter, any Subordination Agreement, any Inventory Subordination Agreement, any Custodial Administration Agreement or Electronic Custodial Administration Agreement, each Guaranty, and all other documents, agreements and instruments now or hereafter evidencing, securing or delivered to Administrative Agent or any Lender in connection with the Loans or transactions contemplated by this Agreement, as each may be amended, restated or otherwise modified from time to time; provided, however, agreements hereafter executed solely in respect of the Banking Services Obligations executed by or on behalf of any Credit Party and delivered concurrently herewith or at any time hereafter shall not constitute “Loan Documents” solely for the purposes of Sections 9.1(a), (b), (c), (d) and (g) hereof.
“Loan Request”: the meaning set forth in Section 2.3(b).
24
“Loans”: the collective reference to the Revolving Loans and any unreimbursed draws under any Letter of Credit, and “Loan” any of such Loans.
“Market Withdrawal”: a Person’s Removal or Correction of a distributed product which involves a minor violation that would not be subject to legal action by the FDA or which involves no violation, e.g., normal stock rotation, routine equipment adjustments and repairs, etc.
“Manager”: any manager appointed by Borrowers in accordance with Section 6.14.
“Material Adverse Effect”: (a) a material adverse change in, or a material adverse effect upon, the operations, business, properties, liabilities (actual or contingent), or condition (financial or otherwise) or prospects of any Borrower or the Borrowers and the other Credit Parties taken as a whole, on the value of any material Collateral, on the enforceability of any Loan Document, or on the validity or priority of Liens on any material Collateral in favor of Administrative Agent (for the benefit of itself and the Lenders); (b) a material impairment of the ability of any Credit Party to perform its obligations under any Loan Document to which it is a party; or (c) a material adverse effect upon the legality, validity, binding effect or enforceability against any Credit Party of any Loan Document to which it is a party.
“Material Contract”: each of the Subordinated Indebtedness Documents, any management agreement, the Lease Agreements and any other contract or other arrangement to which any Borrower or any other Credit Party is a party (other than the Loan Documents) for which breach, termination, nonperformance or failure to renew could reasonably be expected to have a Material Adverse Effect.
“Medicaid”: collectively, the healthcare assistance program established by Title XIX of the Social Security Act (42 U.S.C. §§ 1396 et seq.) and any statutes succeeding thereto, all state statutes and plans for medical assistance enacted in connection with such program, and all Laws, rules, regulations, manuals, orders, guidelines or requirements (whether or not having the force of Law) pertaining to such program, in each case as the same may be amended, supplemented or otherwise modified from time to time.
“Medicare”: collectively, the health insurance program for the aged and disabled established by Title XVIII of the Social Security Act (42 U.S.C. §§ 1395 et seq.) and any statutes succeeding thereto, and all Laws, rules, regulations, manuals, orders or guidelines (whether or not having the force of Law) pertaining to such program, in each case as the same may be amended, supplemented or otherwise modified from time to time.
“Medicare Accelerated and Advance Payment Program”: the Accelerated and Advance Payment Program for Medicare Part A and Part B providers and suppliers as expanded during the period of the COVID-19 public health emergency by Section 3719 of the CARES Act and subsequent CMS guidance.
“Medicare Accelerated Payments”: collectively, the payment received by any Borrower or any other Credit Party pursuant to the Medicare Accelerated and Advance Payment Program and described on Schedule 2 hereto.
“Net Availability”: at any time, the amount by which (a) the lesser of (i) the Borrowing Base of the Borrowers at such time and (ii) the Revolving Commitments exceed (b) the Outstanding Amount.
“Net Orderly Liquidation Value”: in Administrative Agent’s reasonable discretion, the gross amount expressed in terms of money, which Administrative Agent, estimates can be realized from a sale, as of a specific date, given a reasonable period to find a purchaser(s), with the seller being compelled to sell on an as-is/where-is basis minus the estimated costs of such sale.
25
“Net Revenue”: the revenue of Borrowers as reflected on Borrowers’ financial statements for the applicable Net Revenue Test Period, exclusive of the amount of any CARES Act Provider Relief Debt, in each case during such Net Revenue Test Period.
“Net Revenue Test Period”: as of the last day of each calendar month, the period comprised of the six (6) calendar months (taken as one accounting period) ending on the last day of the immediately preceding calendar month.
“Non-Government Payors”: any Third-Party Payors other than the Government Reimbursement Programs.
“Non-Government Receivables Account”: a deposit account maintained by a Borrower with the Deposit Account Bank or CIT Bank, N.A. into which all collections of Accounts of a Borrower from Non-Government Payors are obligated are paid directly or deposited into.
“Notes”: the collective reference to the Revolving Notes (in each case, if any), and “Note” any of such Notes.
“Obligations”: any and all Loans, Reimbursement Obligations and other existing and future debts, liabilities and obligations of every kind or nature at any time owing by any Borrower and any other Credit Party to Administrative Agent, Lenders, Issuing Bank or any Lender Affiliate arising out of, under, pursuant to, in connection with, or evidenced by this Agreement or any of the other Loan Documents, whether joint or several, related or unrelated, primary or secondary, matured or contingent, due or to become due (including debts, liabilities and obligations obtained by assignment), and whether constituting principal, interest, fees, indemnification obligations, Documentation Fees, or Expenses (and specifically including any interest, fees or expenses accruing after the commencement of any Insolvency Proceeding with respect to any Borrower or any other Credit Party, whether or not a claim for such post- commencement interest, fees or expenses is allowed); Banking Services Obligations; any amount payable by any Borrower or any other Credit Party under any Swap Agreement entered into in accordance with Section 6.16 permitted hereunder, and the payment of all Protective Advances and other amounts advanced by Administrative Agent, any Lender or any Lender Affiliate to preserve, protect and enforce rights hereunder and in the Collateral. Notwithstanding anything in this definition to the contrary, “Obligations” as used herein and in the Loan Documents, shall not include any Credit Party’s Excluded Swap Obligations.
“OFAC”: the meaning set forth in the definition of “Government Lists”.
“Organization Documents”: (a) with respect to any corporation, the certificate or articles of incorporation and the bylaws (or equivalent or comparable constitutive documents with respect to any non-U.S. jurisdiction); (b) with respect to any limited liability company, the certificate or articles of formation or organization and operating agreement or limited liability company agreement; and (c) with respect to any partnership, joint venture, trust or other form of business entity, the partnership, joint venture or other applicable agreement of formation or organization and any agreement, instrument, filing or notice with respect thereto filed in connection with its formation or organization with the applicable Governmental Authority in the jurisdiction of its formation or organization and, if applicable, any certificate or articles of formation or organization of such entity.
26
“Other Connection Taxes”: with respect to any Recipient, Taxes imposed as a result of a present or former connection between such Recipient and the jurisdiction imposing such Tax (other than connections arising from such Recipient having executed, delivered, become a party to, performed its obligations under, received payments under, received or perfected a security interest under, engaged in any other transaction pursuant to or enforced any Loan Document, or sold or assigned an interest in any Loan or Loan Document).
“Other Taxes”: all present or future stamp, court or documentary, intangible, recording, filing or similar Taxes that arise from any payment made under, from the execution, delivery, performance, enforcement or registration of, from the receipt or perfection of a security interest under, or otherwise with respect to, any Loan Document, except any such Taxes that are Other Connection Taxes imposed with respect to an assignment of any interest in any Loan or Loan Document.
“Outstanding Amount”: with respect to the Revolving Facility on any date, the sum of (a) the aggregate outstanding principal amount of all Revolving Loans as of such date, and (b) the amount of any outstanding Letters of Credit as of such date, after giving effect, without duplication, to any borrowings and prepayments or repayments of Revolving Loans, the issuance of any Letters of Credit and the payment of any Reimbursement Obligations occurring on such date.
“Overadvances”: at any time, the amount by which (a) the sum at such time of the amount of all outstanding Revolving Loans plus the undrawn amount of all outstanding Letters of Credit exceeds (b) the Borrowing Base at such time.
“Parent”: the meaning set forth in the preamble to this Agreement.
“Participant”: the meaning set forth in Section 10.1(d).
“Patriot Act”: the meaning set forth in Section 5.15(a).
“Patriot Act Offense”: any violation of the criminal Laws of the United States of America or of any of the several states, or that would be a criminal violation if committed within the jurisdiction of the United States of America or any of the several states, relating to terrorism or the laundering of monetary instruments, including any offense under (a) the criminal Laws against terrorism; (b) the criminal Laws against money laundering, (c) the Bank Secrecy Act, as amended, (d) the Money Laundering Control Act of 1986, as amended, or the (e) Patriot Act. “Patriot Act Offense” also includes the crimes of conspiracy to commit, or aiding and abetting another to commit, a Patriot Act Offense.
“Payor”: the party primarily obligated to pay an Account.
“PBGC”: the Pension Benefit Guaranty Corporation or any Governmental Authority succeeding to any of its principal functions.
“Permitted Acquisition”: any acquisition of all or substantially all of the assets, a line of business or division or 100% of the Equity Interests of any Person engaged in a business which is substantially related to that of the Borrowers where the total consideration (including assumed Indebtedness, cash, securities (equity and debt), purchase price adjustments, Earn-Out Obligations or other property) for all such acquisitions does not exceed $15,000,000 per acquisition or $50,000,000, in the aggregate, from the Closing Date to the date of determination; provided, that:
(a) all such acquisitions are approved by the board of directors and stockholders, if required, of the acquiree and are not otherwise hostile;
27
(b) the Person acquired shall be a domestic Person and any assets, line of business or division acquired shall be located within the United States of America;
(c) both before and immediately after giving effect to any such acquisition no Default or Event of Default exists;
(d) both before and immediately after giving effect to a proposed acquisition, the Consolidated Entities shall be in compliance with the financial covenants set forth in Section 7, inclusive, on a pro forma basis (all such compliance to be confirmed by an officer’s certificate delivered within five (5) days prior to the consummation of such acquisition);
(e) if such acquisition is (i) an acquisition of assets, the acquisition is structured so that a Borrower shall acquire such assets; or (ii) an acquisition by merger involving any Borrower or other Credit Party, the acquisition is structured so that the respective Borrower or Credit Party is the surviving entity;
(f) no Borrower or any other Credit Party shall, as a result of or in connection with any such acquisition, assume or incur any direct or contingent liabilities (whether relating to environmental, tax, litigation, or other matters) that could reasonably be expected to have a Material Adverse Effect;
(g) the Borrower Representative shall provide to Administrative Agent and Lenders a copy of all business and financial information reasonably requested by Administrative Agent including pro forma financial statements, statements of cash flows, Availability projections and calculation of pro forma Adjusted EBITDA;
(h) not less than five (5) days prior to such acquisition, Administrative Agent shall have received substantially complete draft copies of each material document, instrument and agreement to be executed in connection with such acquisition together with all lien search reports and lien release letters and other documents as Administrative Agent may reasonably require to evidence the termination of Liens on the assets or business to be acquired;
(i) the acquisition target, division or line of business shall have Adjusted EBITDA (calculated for the twelve (12) consecutive calendar months most recently ended) equal to or greater than
$0 (or less than $0 with prior written consent of the Administrative Agent);
(i) consents have been obtained in favor of Administrative Agent and the Lenders to the collateral assignment of rights and indemnities under the related acquisition documents unless the same is freely assignable to Administrative Agent as determined by Administrative Agent in its sole discretion;
(j) each Borrower and each other Credit Party shall have provided to Administrative Agent copies of all material notifications, reports, submissions, certifications, correspondence and other documents with respect to such acquired entity’s initial or continued enrollment in any Government Reimbursement Program;
(k) within twenty (20) days (or such later date as agreed to in writing by Administrative Agent as determined in its sole discretion) after consummation of such acquisition, the provisions of Section 5.11 and Section 5.12 shall have been satisfied; and
28
(l) a certificate, in form, scope and substance reasonably acceptable to Administrative Agent of an officer of the Borrower Representative confirming satisfaction of each of the applicable foregoing conditions precedent shall have been delivered to Administrative Agent prior to the consummation of such acquisition.
(m) with respect to the maximum, potential Earn-Out Obligations (if any) payable under any circumstance in connection with such Acquisition, such Earn-Out Obligations shall not exceed thirty-five percent (35.0%) of the total consideration paid in cash at closing for such Acquisitions and shall, to the extent requested by Administrative Agent, be subject to a Subordination Agreement acceptable to Administrative Agent in its sole discretion.
“Permitted Additional Deposit Account Bank”: the meaning set forth in Section 2.6(b)(i).
“Permitted Asset Disposition”: an Asset Disposition that is (a) a sale of Inventory in the ordinary course of business (and not pursuant to any bulk sale) or any other disposition of Inventory that is obsolete, unmerchantable or otherwise unsaleable in the ordinary course of business; (b) dispositions of furniture, fixtures and equipment in the ordinary course of business that the applicable Borrower or Subsidiary determines in good faith is no longer used or useful in the business of such Borrower or its Subsidiaries; and (c) dispositions of assets, other than Eligible Accounts or Eligible Prospective Rental Contract Stream, not otherwise described in clauses (a) or (b) above so long as (i) made at fair market value as reasonably determined by Borrowers, (ii) the aggregate fair market value of all assets disposed of in each Asset Disposition (or series of related Asset Dispositions) does not exceed $50,000 and (iii) the aggregate fair market value of all assets disposed of in all such Asset Dispositions in any Fiscal Year does not exceed $500,000.
“Permitted Contingent Obligations”: (a) Guaranties of Indebtedness hereunder made by the Guarantors; (b) endorsements of negotiable instruments for deposit or collection or similar transactions in the ordinary course of business; (c) Contingent Obligations incurred in the ordinary course of business with respect to surety, appeal or performance bonds or other similar obligations; (d) Contingent Obligations arising with respect to customary indemnification obligations in favor of purchasers in connection with Permitted Asset Dispositions; and (e) other Contingent Obligations not permitted by clauses (a) through (d) above, not to exceed $100,000 in the aggregate at any time outstanding.
“Permitted Distributions”: (a) Distributions by any Borrower or any other Credit Party in cash (including Distributions by any Borrower to the Ultimate Parent), provided each of the following conditions must be satisfied both prior to and after giving effect to such Distribution: (i) no Default or Event of Default exists, (ii) the Borrowers demonstrate to the satisfaction of Administrative Agent that they are in compliance with the financial covenants set forth in Article 7 recomputed for the most recently ended Fiscal Quarter after giving effect to such proposed Distribution, (iii) Borrowers have given not less than ten (10) days prior written notice of such Distribution to Administrative Agent before such Distribution is made, (iv) the Borrowers deliver to Administrative Agent a certificate signed by an Authorized Officer of Borrower Representative certifying that all conditions specified in this definition and in Section 3.2 have been satisfied, (v) such Distributions shall not exceed $2,000,000 per annum in the aggregate, and (vi) the first such Distribution under this definition may not be made until after the date on which the Borrowers deliver monthly financial statements pursuant to Section 8.3(c) for the first full month following the first anniversary of the Closing Date,; and (b) dividends by any Subsidiary of any Borrower to such parent Borrower.
29
“Permitted Indebtedness”: (a) Indebtedness to Administrative Agent and Lenders in connection with the Loans and Letters of Credit or otherwise pursuant to the Loan Documents (including Banking Services Obligations); (b) Indebtedness under Swap Agreements permitted pursuant to Section 6.16; (c) unsecured trade payables incurred in the ordinary course of a Credit Party’s business and which do not remain unpaid more than sixty (60) days after the due date thereof; (d) purchase money Indebtedness (including Capitalized Lease Obligations) incurred by any Credit Party to finance the purchase of fixed or capital assets, provided that (i) such Indebtedness incurred in any Fiscal Year shall not exceed seven percent (7.0%) of Net Revenue (measured annually and based upon a twelve (12) month Net Revenue Test Period rather than six (6) months), (ii) such Indebtedness shall not exceed the purchase price of the assets funded and (iii) no such Indebtedness may be refinanced for a principal amount in excess of the principal amount outstanding at the time of such refinancing; (e) Indebtedness in the form of insurance premiums financed through the applicable insurance company; (f) Indebtedness existing on the Closing Date that is identified and described under the heading “Permitted Indebtedness” on Schedule 2 hereto, which shall include any CARES Act Obligations; (g) Permitted Contingent Obligations; (h) Indebtedness owing with respect to Permitted Intercompany Loans; (i) so long as in the aggregate such Indebtedness does not exceed $5,000,000 at any time outstanding, Indebtedness in respect of indemnification, purchase price adjustments, Earn-Out Obligations and other similar obligations incurred by the Borrowers or any other Credit Party in a Permitted Acquisition under agreements which provide for indemnification, the adjustment of the purchase price or for similar adjustments (in each case subject to clause (m) of the definition “Permitted Acquisition”); provided, payment with respect to any Earn-Out Obligations and other similar obligations set forth in this clause (i) shall be made only upon Borrower delivering to Administrative Agent a certificate signed by an Authorized Officer of Borrower Representative demonstrating that, upon giving effect to such payment, the Credit Parties are in compliance with Section 7.1 (the calculation of which shall include as Fixed Charges the amount of such Earn-Out Obligations to be paid (excluding any purchase price holdbacks not tied to performance)); (j) so long as no Default or Event of Default exists or would result therefrom, Indebtedness of a Person or Indebtedness attaching to assets of a Person that, in either case, becomes a Borrower or a Credit Party or Indebtedness attaching to assets that are acquired by any Borrower or any other Credit Party, in each case after the Closing Date as the result of a Permitted Acquisition, to the extent existing at the time of such Permitted Acquisition and any permitted refinancing thereof; provided that (i) such Indebtedness is not incurred in contemplation of such Permitted Acquisition, (ii) only the Person acquired that becomes a Borrower or Credit Party is liable for such Indebtedness and (iii) such Indebtedness shall not exceed $1,000,000 in the aggregate at any time outstanding (excluding any Indebtedness acquired pursuant to any such Permitted Acquisition that is attributable to (x) purchase money Indebtedness (including Capitalized Lease Obligations), which for the avoidance of doubt remains subject to clause (f) of this definition and (y) CARES Act Obligations); (k) other unsecured Indebtedness in an aggregate outstanding amount not to exceed $500,000 at any one time; (l) Subordinated Indebtedness, provided that any Subordinated Indebtedness shall require the approval of Administrative Agent; and (m) other unsecured Indebtedness in an aggregate principal amount not exceeding $500,000 at any time outstanding.
“Permitted Intercompany Loans”: loans made by a Credit Party to another Credit Party other than Parent, so long as the parties thereto have executed and delivered to Administrative Agent an intercompany subordination agreement in form and substance satisfactory to Administrative Agent.
“Permitted Investments”: (a) Investments existing on the Closing Date that are disclosed under the heading “Permitted Investments” on Schedule 2 hereto; (b) Investments in Cash Equivalents; (c) Investments consisting of endorsement of negotiable instruments for deposit or collection or similar transactions in the ordinary course of business; (d) Investments consisting of (i) travel advances and employee relocation loans and other employee loans and advances in the ordinary course of business and (ii) loans to employees, officers or directors relating to the purchase of Equity Interests of Borrowers or their Subsidiaries pursuant to employee stock purchase plans or agreements approved by Borrowers’ Board of Directors (or other governing body), but the aggregate of all such advances and loans outstanding under this clause (d) shall not exceed $100,000 at any time; (e) Investments (including debt obligations) received in connection with the bankruptcy or reorganization of customers or suppliers and in settlement of delinquent obligations of, and other disputes with, customers or suppliers arising in the ordinary course of business; (f) Capital Expenditures with respect to equipment otherwise permitted hereunder, provided, such Capital Expenditures (excluding any Capital Expenditures that constitute purchase money Indebtedness permitted pursuant to clause (d) of the definition of “Permitted Indebtedness”) and other Capitalized Inventory shall not exceed $500,000 in the aggregate per Fiscal Year; (g) Permitted Acquisitions; and (h) Permitted Intercompany Loans.
30
“Permitted Liens”: (a) Liens securing Taxes, assessments or governmental charges or levies not delinquent; (b) Liens incurred or deposits made in the ordinary course of business in connection with workers’ compensation, unemployment insurance, social security and other like Laws; (c) Liens on fixed assets securing purchase money Indebtedness permitted under the definition of “Permitted Indebtedness”; provided that, (i) such Lien attached to such assets concurrently, or within twenty (20) days of the acquisition thereof, (ii) such Lien attached only to the assets so acquired, (iii) the Indebtedness secured thereby does not exceed the cost or fair market value, whichever is lower, of the asset being acquired on the date of acquisition and (iv) to the extent constituting equipment, such Liens are subject to a Subordination Agreement which shall provide Administrative Agent access to Collateral, default notice from the seller of such equipment and a minimum one hundred and eighty (180) day standstill in addition to such other provisions deemed necessary or advisable by Administrative Agent in its sole discretion; (d) Liens existing on the Closing Date and disclosed under the heading “Permitted Liens” on Schedule 2 hereto; (e) Liens in favor of Administrative Agent (for the benefit of itself and the Lenders) securing the Obligations; (f) deposits or pledges of cash to secure bids, tenders, contracts (other than contracts for the payment of money or the deferred purchase price of property or services), leases, statutory obligations, surety and appeal bonds and other obligations of like nature arising in the ordinary course of business; (g) carrier’s, warehousemen’s, mechanic’s, workmen’s, materialmen’s or other like Liens on Collateral, other than any Collateral which is part of the Borrowing Base, arising in the ordinary course of business with respect to obligations which are not due, or which are being contested in good faith by appropriate proceedings diligently conducted; (h) Liens that are subject to an Inventory Subordination Agreement or otherwise consented by the Administrative Agent pursuant to clause (t) in the definition of “Eligible Accounts”; and (i) the other Liens which do not secure Indebtedness for borrowed money or letters of credit and as to which the aggregate amount of the obligations secured thereby does not exceed $100,000.
“Person”: any individual, corporation, partnership, limited liability company, joint venture, estate, trust, unincorporated association, Governmental Authority, any other person or entity, and any fiduciary acting in such capacity on behalf of any of the foregoing.
“Plan”: (a) an employee benefit or other plan established or maintained by any Borrower or any ERISA Affiliate or any such Plan or to which any Borrower or any ERISA Affiliate makes or is obligated to make contributions and (b) which is subject to Title IV of ERISA or Section 302 of ERISA or Section 412 of the Code.
“Platform”: the meaning set forth in Section 8.1(c).
Pledge Agreement”: that certain Pledge Agreement, dated as of the Closing Date, executed by each Pledgor in favor of Administrative Agent (for the benefit of itself and the Lenders), and each other pledge agreement executed by any Pledgor in favor of Administrative Agent (for the benefit of itself and the Lenders), in each case as the same may be amended, restated, replaced, severed, split, supplemented or otherwise modified from time to time.
31
“Pledgor”: Parent and any other Person who executes a Pledge Agreement and grants a security interest in any Equity Interests of a Borrower or another Credit Party that are owned by such Person to secure the Obligations.
“PNC Controlled Account(s)”: the following deposit account(s) of Borrower Representative:
Bank Name: PNC Bank, N.A.
Bank Address: 300 Fifth Avenue, Pittsburgh, PA 15222
ABA No.: [REDACTED - number]
Account Name: PHM Services, Inc.
Account No.: [REDACTED - number]
Reference: N/A
Bank Name: PNC Bank, N.A.
Bank Address: 300 Fifth Avenue, Pittsburgh, PA 15222
ABA No.: [REDACTED - number]
Account Name: PHM Logistics Corporation
Account No.: [REDACTED - number]
Reference: N/A
“Prime Rate”: the rate of interest per annum publicly announced from time to time by JPMorgan Chase Bank (or its successor) as its prime rate in effect at its principal office in New York City (or if such rate is at any time not available, the prime rate so quoted by any banking institution as determined by Administrative Agent in its sole discretion), which rate is not intended to be the lowest rate charged by any such banking institution to its borrowers; each change in the Prime Rate shall be effective on the date such change is publicly announced as being effective.
“Product”: any devices or products manufactured, sold, leased, rented, developed, tested or marketed by any Credit Party or any of their Subsidiaries.
“Pro Rata Share”: with respect to a Lender’s obligation to make its share of Revolving Loans and receive payments of principal, interest, fees, costs, and expenses with respect thereto and for all other purposes hereunder (including the indemnification obligations arising under Section 12.7), the percentage obtained by dividing (a) such Lender’s Revolving Commitment (or, after the termination of the Revolving Commitments, the Outstanding Amount of such Lender), by (b) the aggregate amount of all Lenders’ Revolving Commitments (or, after the termination of the Revolving Commitments, the Outstanding Amount of all Lenders).
“Protective Advances”: the meaning set forth in Section 2.17.
“PTE”: a prohibited transaction class exemption issued by the U.S. Department of Labor, as any such exemption may be amended from time to time.
“Rating Agency”: each of Standard & Poor’s, a division of The McGraw-Hill Companies, Inc., Moody’s Investors Service, Inc., and Fitch, Inc., a division of Fitch Ratings Ltd. or any other nationally-recognized statistical rating organization.
“Recall”: a Person’s Removal or Correction of a marketed product that the FDA considers to be in violation of the Laws it administers and against which the FDA would initiate legal action, e.g., seizure.
32
“Recipient”: Administrative Agent, any Lender, any Issuing Bank or any other recipient of any payment to be made by or on account of any Obligation of any Credit Party hereunder or under any other Loan Document.
“Reimbursement Obligation”: the Borrowers’ obligation to immediately reimburse or pay all Unreimbursed Amounts with respect to all Letters of Credit.
“Removal”: the physical removal of a device from its point of use to some other location for repair, modification, adjustment, relabeling, destruction, or inspection.
“Rental Agreement”: the meaning set forth in the definition of “Acceptable Rental Agreement”.
“Rental Contract Stream Availability”: fifty-five percent (55%) of Eligible Prospective Rental Contract Stream.
“Required Insurance”: the meaning set forth in Section 5.4.
“Required Lenders”: as of any date of determination, (a) if there are two (2) or fewer Lenders, Lenders holding one hundred percent (100%) of the aggregate Revolving Commitments, or (b) if there are more than two (2) Lenders, Lenders that are not Affiliates holding greater than sixty-six percent (66%) of the aggregate Revolving Commitments (or, after the termination of the Revolving Commitments, Lenders that are not Affiliates holding greater than sixty-six percent (66%) of the Outstanding Amount), provided, that the Revolving Commitment of, and the portion of the liabilities held or deemed held by, any Defaulting Lender shall be excluded for purposes of making a determination of Required Lenders.
“Restrictive Agreement”: an agreement (other than a Loan Document) that conditions or restricts the right of any Borrower or any other Credit Party to incur or repay Indebtedness, to grant Liens on any assets, to declare or make Distributions, to modify, extend or renew any agreement evidencing Indebtedness, or to repay any intercompany Indebtedness.
“Revolving Commitment”: as to any Revolving Lender, such Revolving Lender’s commitment to make Pro Rata Share of the Revolving Loans hereunder, in an aggregate principal amount at any one time outstanding not to exceed the amount set forth opposite such Revolving Lender’s name on Annex A or in the Assignment Agreement pursuant to which such Revolving Lender becomes a party hereto, as applicable, as such amount may be adjusted from time to time in accordance with this Agreement. The aggregate Revolving Commitments of the Revolving Lenders on the Closing Date is Twenty Million Dollars ($20,000,000.00).
“Revolving Facility”: the meaning set forth in Section 2.1(a).
“Revolving Lender”: each Lender with a Revolving Commitment.
“Revolving Loan Account”: the account on Administrative Agent’s books, in the name of the Borrower Representative on behalf of the Borrowers, in which the Borrowers will be charged with all Obligations when due or incurred by Administrative Agent or any Lender.
“Revolving Loans”: the revolving loans and advances made from time to time to or for the account of the Borrowers by Administrative Agent, on behalf of the Lenders, pursuant to Article 2 of this Agreement.
33
“Revolving Loan Termination Date”: the earlier to occur of (a) September 18, 2024 and (b) the date on which the Loans have been declared or automatically have become due and payable pursuant to the terms of this Agreement, whether by acceleration or otherwise; provided, at any time following the Closing Date that the Debenture has not been converted to equity, the Revolving Loan Termination Date shall be the date that is three (3) months prior to the then effective maturity date of such Debenture.
“Revolving Note”: any promissory notes, if requested by a Lender pursuant to Section 2.15, made by each Borrower in favor of such Lender evidencing the Revolving Loans of such Lender, substantially in the form of Exhibit C, in each case as may be amended, restated, supplemented or otherwise modified from time to time.
“Sanctions”: any international economic sanctions or trade embargo administered or enforced by the United States Government, including OFAC, the United Nations Security Council, the European Union or other relevant sanctions authority.
“SBA”: the United States Small Business Administration.
“Security Agreement”: that certain Security Agreement, dated as of the Closing Date, executed by each Credit Party in favor of Administrative Agent (for the benefit of itself and the Lenders), and each other security agreement executed by any Borrower or any other Credit Party in favor of Administrative Agent (for the benefit of itself and the Lenders), in each case as the same may be amended, restated, supplemented or otherwise modified from time to time.
“Settlement Date”: Friday of each week (or if any Friday is not a Business Day on which all Lenders are open for business, the immediately preceding Business Day on which all Lenders are open for business), provided that, Administrative Agent, in its discretion, may require that the Settlement Date occur more frequently (even daily) so long as any Settlement Date chosen by Administrative Agent is a Business Day on which each Lender is open for business.
“Solvent”: with respect to any Person on a particular date, that on such date: (a) the fair value of the property of such Person is greater than the total amount of liabilities, including contingent liabilities, of such Person, (b) the present fair saleable value of such Person is not less than the amount that will be required to pay the probable liability of such Person on its debts as they become absolute and matured, (c) such Person does not intend to, and does not believe that it will, incur debts or liabilities beyond such Person’s ability to pay such debts and liabilities as they mature and (d) such Person is not engaged in a business or a transaction, and is not about to engage in a business or a transaction, for which such Person’s property would constitute an unreasonably small capital. For purposes of this definition, the amount of any contingent liability at any time shall be computed as the amount that, in light of all of the facts and circumstances existing at such time, represents the amount that can reasonably be expected to become an actual or matured liability.
“Specified Laws”: all Applicable Laws relating to the operation of private label and other medical device product distributions, and the possession, control, warehousing, marketing, sale, lease, rental, and distribution of medical devices, including the FDCA, Current Good Manufacturing Practices (CGMP) requirements of the Quality System regulation for medical devices, as specified in Title 21, Code of Federal Regulations, Part 820 (21 C.F.R. 820), the Occupational Health and Safety Act (29 U.S.C. § 651 et seq.), any Laws pertaining to the storage and disposal of biomedical and other hazardous waste, and any implementing regulations to any of the foregoing or other applicable state or federal Laws. This shall include all guidelines and standards established by state government agencies for the manufacture or repair of respiratory therapy healthcare products and related Products.
34
“Subordinated Indebtedness”: any Indebtedness of any Credit Party or any Subsidiary incurred pursuant to the Subordinated Indebtedness Documents and with the prior written consent of Administrative Agent, all of which documents must be in form and substance acceptable to Administrative Agent in its sole discretion. All Subordinated Indebtedness as of the Closing Date is identified and described under the heading “Subordinated Indebtedness” on Schedule 2 hereto.
“Subordinated Indebtedness Documents”: the Subordination Agreements and all other documents and instruments relating to the Subordinated Indebtedness and all amendments and modifications thereof permitted hereby, all of which must be in form and substance acceptable to Administrative Agent in its sole discretion.
“Subordination Agreements”: any agreement between Administrative Agent and another creditor of any Credit Party or any Subsidiary of any Credit Party, as the same may be amended, supplemented, restated or otherwise modified from time to time in accordance with the terms thereof, pursuant to which the Indebtedness owing from any Borrower(s) or any other Credit Party and/or the Liens security such Indebtedness granted by Borrowers or any other Credit Party to such creditor are subordinated in any way to the Obligations and the Liens created under the Collateral Documents, the terms and provisions of such Subordination Agreements to have been agreed to by and acceptable to Administrative Agent in its sole discretion.
“Subsidiary”: of a Person means a corporation, partnership, joint venture, limited liability company or other business entity of which a majority of the shares of securities or other interests having ordinary voting power for the election of directors or other governing body (other than securities or interests having such power only by reason of the happening of a contingency) are at the time beneficially owned, or the management of which is otherwise controlled, directly, or indirectly through one or more intermediaries, or both, by such Person. Unless otherwise specified, all references herein to a “Subsidiary” or to “Subsidiaries” shall refer to a Subsidiary or Subsidiaries of Parent or a Borrower.
“Swap Agreement”: a swap agreement (as defined in 11 U.S.C. § 101, as in effect from time to time), if any, between any Borrower or any other Credit Party and Administrative Agent.
“Swap Obligations”: with respect to any Borrower or any other Credit Party, any obligation to pay or perform under any Swap Agreement.
“Taxes”: all present or future taxes, levies, imposts, duties, deductions, withholdings (including backup withholding), assessments, fees or other charges imposed by any Governmental Authority, including any interest, additions to tax or penalties applicable thereto.
“Test Period”: as of any date, the most recently ended period of twelve (12) consecutive calendar months (taken as one accounting period), or such other period as specified in this Agreement.
“Third-Party Payor”: (a) any commercial medical insurance company having its principal office in the United States and licensed as an insurer in the state in which the Healthcare Services giving rise to any Account were rendered, (b) a Blue Cross/Blue Shield Plan, (c) any Government Account Debtor making payments under a Government Reimbursement Program, and (d) any HMO, PPO, managed care plan or other institutional Person or entity having its principal office in the United States that reimburses providers for Healthcare Services.
“Third-Party Payor Programs”: all payment and reimbursement programs sponsored by a Third-Party Payor, in which a Borrower participates.
35
“Transport and Disposal Agreement”: an agreement for the transport and disposal of hazardous wastes in accordance with all Applicable Laws, as the same may be amended, restated, supplemented, modified or replaced from time to time.
“TRICARE”: the program administered pursuant to 10 U.S.C. Section 1071 et seq.), Sections 1320a-7 and 1320a-7a of Title 42 of the United States Code and the regulations promulgated pursuant to such statutes including 32 C.F.R. Part 199 et seq. and any rules, manuals, orders or guidelines (whether or not having the force of Law) pertaining to such program.
“Trigger Event”: the occurrence of any of the following, (a) a Default or an Event of Default; (b) failure to meet any of the Treasury Management Migration Milestones; or (c) at such time when there remains no Accounts Availability under the Borrower Base and any Loan or portion of a Loan is made accessing any Rental Contract Stream Availability.
“Trigger Event Actions”: the meaning set forth in Section 2.6(f).
“Treasury Management Migration Completion Date”: three hundred and sixty-five (365) days following the Closing Date (or such later date as agreed to in writing by Administrative Agent as determined in its sole discretion).
“Treasury Management Migration Milestones”: the meaning set forth in Section 5.14(b).
“UCC”: the Uniform Commercial Code as in effect in the state of New York or of any other state the Laws of which are required to be applied in connection with the perfection of security interests in any Collateral.
“Ultimate Parent”: Protech Home Medical Corp., a corporation formed under the laws of the Province of British Columbia.
“Unreimbursed Amount”: the amount of any drawing under a Letter of Credit or payment under a Letter of Credit Guaranty which has not yet been reimbursed by the Borrowers (through direct payment or by the making of a Revolving Loan).
“U.S. Person”: any Person that is a “United States person” as defined in Section 7701(a)(30) of the Code.
“Vendor Lease”: the meaning set forth in the definition of “Eligible Account”.
“Welfare Plan”: an employee welfare benefit plan, as defined in Section 3(1) of ERISA.
“Write-Down and Conversion Powers”: with respect to any EEA Resolution Authority, the write-down and conversion powers of such EEA Resolution Authority from time to time under the Bail-In Legislation for the applicable EEA Member Country, which write-down and conversion powers are described in the EU Bail-In Legislation Schedule.
36
1.2 Other Interpretive Provisions. With reference to this Agreement and each other Loan Document, unless otherwise specified herein or in such other Loan Document:
(a) The definitions of terms herein shall apply equally to the singular and plural forms of the terms defined. Whenever the context may require, any pronoun shall include the corresponding masculine, feminine and neuter forms. The words “include,” “includes” and “including” shall be deemed to be followed by the phrase “without limitation.” The word “will” and the word “shall” will be construed to have the same meaning and effect. Unless the context requires otherwise, (i) any definition of or reference to any agreement, instrument or other document (including any Organization Document and any Loan Document) shall be construed as referring to such agreement, instrument or other document as from time to time amended, restated, extended, renewed, supplemented or otherwise modified in writing from time to time (subject to any restrictions on such amendments, supplements or modifications set forth herein or in any other Loan Document), (ii) any reference herein to any Person shall be construed to include such Person’s successors and assigns, (iii) the words “herein,” “hereof,” “hereto” and “hereunder,” and words of similar import when used in any Loan Document, shall be construed to refer to such Loan Document in its entirety and not to any particular provision thereof, (iv) all references in a Loan Document to Articles, clauses, Sections, Exhibits and Schedules shall be construed to refer to Articles, clauses and Sections of, and Exhibits and Schedules to, the Loan Document in which such references appear, (v) any reference to any Law shall include all statutory and regulatory provisions consolidating, amending, replacing or interpreting such Law and any reference to any Law or regulation shall, unless otherwise specified, refer to such Law or regulation as amended, modified or supplemented from time to time, and (vi) unless otherwise specified, the words “asset” and “property” shall be construed to have the same meaning and effect and to refer to any and all tangible and intangible assets and properties, including cash, securities, accounts and contract rights. As used hereunder or in the other Loan Documents, the phrase “to Borrowers’ knowledge” or “to the best of Borrowers’ knowledge” or similar phrases, means each Borrower’s and each other Credit Party’s knowledge after due and diligent inquiry.
(b) In the computation of periods of time from a specified date to a later specified date, the word “from” means “from and including”; the words “to” and “until” each mean “to but excluding”; and the word “through” means “to and including”.
(c) Section headings herein and in the other Loan Documents are included for convenience of reference only and shall not affect the interpretation of this Agreement or any other Loan Document.
1.3 Accounting Terms.
(a) Generally. All accounting terms not specifically or completely defined herein shall be construed in conformity with, and all financial data (including financial ratios and other financial calculations) required to be submitted pursuant to this Agreement shall be prepared in conformity with, IFRS applied on a consistent basis, as in effect from time to time, except as otherwise specifically prescribed herein.
(b) Changes in IFRS. If at any time any change in IFRS would affect the computation of any financial ratio or requirement set forth in any Loan Document, and Borrowers or Administrative Agent shall so request, Administrative Agent and Borrowers shall negotiate in good faith to amend such ratio or requirement to preserve the original intent thereof in light of such change in IFRS (subject to the approval of Administrative Agent); provided that, until so amended, (i) such ratio or requirement shall continue to be computed in accordance with IFRS prior to such change therein and (ii) Consolidated Entities shall provide to Administrative Agent and Lenders financial statements and other documents required hereunder or as reasonably requested hereunder setting forth a reconciliation between calculations of such ratio or requirement made before and after giving effect to such change in IFRS. Notwithstanding any other provision contained herein, any obligations relating to a lease that was accounted for by such Person as an operating lease as of the Closing Date and any similar lease entered into after the Closing Date by such Person shall be accounted for as obligations relating to an operating lease and not as obligations relating to a Capital Lease; provided, however, that the Borrower Representative may elect, with notice to Administrative Agent to treat operating leases as Capital Leases in accordance with IFRS as in effect from time to time and, upon such election, and, upon any subsequent change to IFRS therefor, the parties will enter into negotiations in good faith in an effort to preserve the original intent of the financial covenants set forth herein (it being understood and agreed that the treatment of operating leases be interpreted on the basis of IFRS as in effect on the Closing Date until such election shall have been withdrawn or such provision amended in accordance herewith).
37
1.4 Rounding. Any financial ratios required to be maintained by Borrowers pursuant to this Agreement shall be calculated by dividing the appropriate component by the other component, carrying the result to one place more than the number of places by which such ratio is expressed herein and rounding the result up or down to the nearest number (with a rounding-up if there is no nearest number).
1.5 Times of Day. Unless otherwise specified, all references herein to times of day shall be references to United States Eastern time (daylight or standard, as applicable).
1.6 Divisions. For all purposes under the Loan Documents, in connection with any division or plan of division under Delaware law (or any comparable event under a different jurisdiction’s Laws): (a) if any asset, right, obligation or liability of any Person becomes the asset, right, obligation or liability of a different Person, then it shall be deemed to have been transferred from the original Person to the subsequent Person, and (b) if any new Person comes into existence, such new Person shall be deemed to have been organized on the first date of its existence by the holders of its capital stock at such time.
ARTICLE 2 GENERAL REVOLVING LOAN TERMS
2.1 Revolving Loans Generally. Subject to the terms and conditions of this Agreement, from the Availability Date until the date that is five (5) Business Days prior to the Revolving Loan Termination Date (“Availability Period”), the Revolving Lenders hereby establish for the benefit of Borrowers a revolving credit facility (the “Revolving Facility”) pursuant to which the Revolving Lenders pro rata in accordance with their respective Pro Rata Share, severally (and neither jointly nor jointly and severally) agree to make loans and advances to the Borrower Representative on behalf of each Borrower on a revolving basis (i.e. subject to the limitations set forth herein, each Borrower, through the Borrower Representative, may borrow, repay and re-borrow Revolving Loans); provided that the aggregate outstanding amount of all advances made hereunder shall not, at any time, exceed the lesser of (i) the Borrowing Base and (ii) the Revolving Commitments (the “Availability”). In no event shall Administrative Agent or any Revolving Lender have an obligation to make a Revolving Loan to any Borrower, nor shall the Borrower Representative or any Borrower be entitled to request or receive a Revolving Loan, if (i) a Default or Event of Default shall have occurred and remain outstanding on the date of request for such Revolving Loan or the date of the funding thereof or (ii) the amount of such Revolving Loan, when added to the principal amount of the Revolving Loans outstanding, would exceed the Availability of the Borrowers on the date of the request therefor or the funding thereof.
2.2 Reserves and Adjustments. Administrative Agent shall implement the following reserves and/or adjustments:
(a) From time to time, upon not less than three (3) Business Days prior notice to Borrower Representative, Administrative Agent may adjust the percentages used in the definition of “Borrowing Base”, “Accounts Availability” or “Rental Contract Stream Availability”, in order to reflect, in Administrative Agent’s reasonable judgment, the experience with Borrowers (including by way of illustration, to adjust for any known or potential offsets by Medicare or Medicaid) or the aggregate amount or percentage of the Collections with respect to the Accounts.
38
(b) Without limiting the foregoing or any other rights and remedies of Administrative Agent hereunder or under the other Loan Documents, the Revolving Loans shall be subject to Administrative Agent’s continuing right to withhold from the Borrowing Base reserves, and to increase and decrease such reserves from time to time, if and to the extent that in Administrative Agent’s reasonable discretion, such reserves are necessary, including reserves related to any CARES Act Deferred Payroll Taxes, CARES Act PPP Loan, CARES Act Provider Relief Debt, or Medicare Accelerated Payment or any other amounts owed by Borrowers or any other Credit Party pursuant to similar stimulus programs.
2.3 Funding Procedures.
(a) On or following the Availability Date, subject to the terms and conditions of this Agreement and so long as no Default or Event of Default has occurred and remains outstanding, Revolving Lenders will make Revolving Loans to Borrowers as provided for herein. Borrowers shall provide Administrative Agent with a signed Borrowing Base Report on a specified Business Day of each month (such day to be mutually agreeable to Borrowers and Administrative Agent and to be referred to herein as the “Designated Date”) whether or not Borrower Representative has requested a Revolving Loan to be made on such date. Borrowers may request a Revolving Loan to be made on any day of the week (such day is referred to herein as the “Funding Date”).
(b) On the Designated Date, Borrower Representative will sign and return the Borrowing Base Report to Administrative Agent. If Borrowers request that a Revolving Loan be made on any date other than the Designated Date, Borrowers shall deliver to Revolving Lender an updated A/R Rollforward on the applicable Funding Date, and Net Availability shall be calculated based on the last Borrowing Base Report signed and returned to Administrative Agent as required herein, as updated by the A/R Rollforward delivered to Administrative Agent on the applicable Funding Date. The Borrowing Base Report may be delivered via telecopy (or electronic transmission to transfers@cit.com) and Borrowers acknowledge that Administrative Agent may rely on Borrower Representative’s signatures by facsimile, or electronic transmission, as applicable, which shall be legally binding upon Borrowers. If Borrowers are requesting that a Revolving Loan be made on such Funding Date, Borrowers hereby authorize Administrative Agent to make Revolving Loans to Borrowers based upon a telephonic or e-mail request (or, if permitted by Administrative Agent, based upon a request posted on CIT’s StuckyNet web- based loan accounting system) made by an Authorized Officer (each, a “Loan Request”). Each telephonic, e-mail or posted request shall be irrevocable, and Borrowers agree that Borrower Representative shall confirm any telephonic request for a Revolving Loan by sending an e-mail of such request to Administrative Agent by the end of business on the same day that such Revolving Loan is requested. Administrative Agent shall have the right to rely on any telephonic, e-mail or posted request for a Revolving Loan made by anyone purporting to be an officer of Borrower Representative who has been authorized in writing to request Revolving Loans, without further investigation.
(c) Subject to the terms and conditions of this Agreement, if the A/R Rollforward and Loan Request are delivered to Administrative Agent before 11:00 a.m. (Eastern Time) on the Funding Date, Administrative Agent will advance on the Funding Date (or the next Business Day if the A/R Rollforward and Loan Request are delivered after 11:00 a.m. (Eastern Time)) to Borrower Representative a Revolving Loan in an amount equal to the lesser of (i) the amount of the Revolving Loan requested by Borrower Representative in the Loan Request or (ii) the Net Availability as of such date. Any Revolving Loans made by Administrative Agent hereunder shall be treated for all purposes as, and shall accrue interest at the same rate applicable to, Revolving Loans.
39
(d) Administrative Agent’s determination of the Estimated Net Value of the Eligible Accounts and other amounts to be determined or calculated under this Agreement shall, in the absence of manifest error, be binding and conclusive.
2.4 Revolving Loans by Administrative Agent and Settlement Among the Revolving Lenders.
(a) Administrative Agent, on behalf of the Revolving Lenders, shall disburse all loans and advances to the Borrower Representative and shall handle all collections of Collateral and repayment of all Obligations. If Administrative Agent elects to require that any Revolving Lender make funds available to Administrative Agent, prior to a disbursement by Administrative Agent to Borrower Representative, Administrative Agent shall advise each Revolving Lender by telephone, facsimile or e- mail of the amount of such Revolving Lender’s Pro Rata Share of the Revolving Loan requested by Borrowers no later than noon (Eastern time) on the date of funding of such Loan, and each such Revolving Lender shall pay Administrative Agent on such date such Revolving Lender’s Pro Rata Share of such requested Loan, in same day funds, by wire transfer to Administrative Agent’s Account, or such other account as may be identified by Administrative Agent to Revolving Lenders from time to time. It is understood that for purposes of advances to the Borrower Representative and for purposes of this Section 2.4, unless Administrative Agent has made the election referred to in the immediately preceding sentence, Administrative Agent will be using the funds of Administrative Agent, and pending settlement, all interest accruing on such advances shall be payable to Administrative Agent.
(b) Unless Administrative Agent shall have been notified in writing by any Revolving Lender prior to any advance to the Borrower Representative that such Revolving Lender will not make the amount which would constitute its Pro Rata Share of the borrowing on such date available to Administrative Agent, Administrative Agent may assume that such Revolving Lender shall make such amount available to Administrative Agent on a Settlement Date, and in reliance upon such assumption, Administrative Agent may make available to the Borrower Representative a corresponding amount. A certificate of Administrative Agent submitted to any Revolving Lender with respect to any amount owing under this clause (b) shall be conclusive, absent manifest error. If such Revolving Lender’s Pro Rata Share of such borrowing is not in fact made available to Administrative Agent by such Revolving Lender on the Settlement Date, Administrative Agent shall be entitled to recover from the Borrowers, on demand, such Revolving Lender’s Pro Rata Share of such borrowing, together with interest thereon (for the account of Administrative Agent) at the rate per annum applicable to such borrowing, without prejudice to any rights which Administrative Agent may have against such Revolving Lender under Section 12.7 hereof. Nothing contained herein shall be deemed to obligate Administrative Agent to make available to the Borrowers the full amount of a requested advance when Administrative Agent has any notice (written or otherwise) that any of the Revolving Lenders will not advance its Pro Rata Share thereof.
(c) On each Settlement Date, Administrative Agent and the Revolving Lenders shall each remit to the other, in immediately available funds, all amounts necessary so as to ensure that, as of the Settlement Date, the Revolving Lenders shall have advanced their respective Pro Rata Share of all outstanding Revolving Loans. Each Revolving Lender’s obligation to make the Revolving Loans referred to in Section 2.1(a) and to make the settlements pursuant to this Section 2.4(c) shall be absolute and unconditional and shall not be affected by any circumstance, including (v) any set-off, counterclaim, recoupment, defense or other right which any such Revolving Lender or Borrower may have against Administrative Agent, the other the Borrowers, any other Revolving Lender or any other person, (w) the occurrence or continuance of a Default or Event of Default, (x) any adverse change in the condition (financial or otherwise) of the Borrowers, or any of them, (y) any breach of this Agreement or any other Loan Document by the Borrowers, or any of them, or any other Revolving Lender or (z) any other circumstance, happening or event whatsoever, whether or not similar to any of the foregoing.
40
2.5 Reaffirmation of Representations and Warranties. All of the representations and warranties made by the Borrowers in this Agreement shall be deemed to be remade by the Borrowers each time that the Borrower Representative requests a Revolving Loan under this Agreement, except to the extent that such representations and warranties specifically refer to an earlier date, which case they shall be remade as of such earlier date, and each such request shall also constitute a representation and warranty by the Borrowers that, after giving effect to the requested Revolving Loan, no Default or Event of Default shall have occurred and remain outstanding.
2.6 Deposit Account and Collections.
(a) Prior to the Treasury Management Migration Completion Date, the Credit Parties shall (and in each case subject to the requirements set forth in Section 5.14 and Section 5.17):
(i) maintain the deposit accounts (including all Deposit Accounts) set forth on Schedule 2.6 hereto (the “Closing Date Deposit Accounts”) and not maintain any other deposit accounts (other than CIT Accounts);
(ii) as of and following the Availability Date, maintain at all times a valid and enforceable deposit account control agreement acceptable to Administrative Agent in its sole discretion with respect to the PNC Controlled Accounts;
(iii) as of and following the Availability Date, with respect to all deposit accounts (other than the PNC Controlled Accounts) maintained with PNC Bank, National Association by any Credit Party, Credit Parties shall cause PNC Bank, National Association to transfer on a daily basis (pursuant to zero balance accounts or standing wire transfer orders satisfactory to Administrative Agent) all available funds on deposit in all such deposit accounts to the PNC Controlled Account of the Borrower Representative.
(iv) Following a Trigger Event, in each case at the direction of Administrative Agent (subject to Section 2.6(f)):
A. Credit Parties shall cause PNC Bank, National Association to transfer on a daily basis (pursuant to a standing wire transfer order) all available funds on deposit in all such PNC Controlled Accounts into Administrative Agent’s Account for application to the Obligations in accordance with the terms and conditions of this Agreement, and following payment in full of all outstanding Obligations, any remaining amounts in such Administrative Agent’s Account shall be made available to Borrowers.
B. In the case of a Trigger Event which occurred as a result of a Default or Event of Default occurring, each Credit Party shall execute with CIT Bank, N.A. and any other Deposit Account Bank (x) a deposit account control agreement for any Non- Government Receivables Account in form and substance acceptable to Administrative Agent and (y) an account instruction agreement for any Government Receivables Account in form and substance acceptable to Administrative Agent.
C. No Credit Party shall withdraw any amounts from any Government Receivables Account, Non-Government Receivables Account or any other deposit account that receives Collections, nor shall any Credit Party change any procedures or sweep instructions under any agreement governing a Government Receivables Account, Non-Government Receivables Account, or any other deposit account that receives Collections.
41
(b) Following the Treasury Management Migration Completion Date:
(i) Credit Parties (A) shall maintain all of its Government Receivables Accounts with CIT Bank, N.A, subject to the provisions of this Agreement and dedicated exclusively to the receipt of Collections from Government Account Debtors, (B) shall maintain all of its Non-Government Receivables Accounts with CIT Bank, N.A., subject to the provisions of this Agreement and dedicated exclusively to the receipt of Collections from Non-Government Payors, and (C) shall maintain all other deposit accounts with CIT Bank, N.A.; provided, any Government Receivables Accounts, Non-Government Receivables Accounts, and any other deposit accounts not established and maintained with CIT Bank, N.A. may remain open following the Treasury Management Migration Completion Date only if (x) Administrative Agent has provided prior written consent thereto or (y) such deposit account constitutes an Excluded Account (such other depository institutions with respect to which such deposit accounts remain open pursuant to the immediately preceding clauses (x) and (y), each a “Permitted Additional Deposit Account Bank”), and at the request of Administrative Agent each Credit Party shall execute with CIT Bank, N.A. or any Permitted Additional Deposit Account Bank, a separate deposit account control agreement or account instruction agreement for any such deposit account in each case in form and substance acceptable to Administrative Agent.
(ii) Each Credit Party shall ensure that (A) all Collections of Accounts on which Government Account Debtors are obligated are paid directly into or deposited into a Government Receivables Account maintained at CIT Bank, N.A. or Permitted Additional Deposit Account Bank and (B) all Collections of Accounts on which Non-Government Payors are obligated are paid directly into or deposited in a Non-Government Receivables Account maintained at CIT Bank, N.A. or Permitted Additional Deposit Account Bank.
(iii) If any Credit Party receives any Collections that should have been sent to a Government Receivables Account or Non-Government Receivables Account, such Credit Party shall promptly upon receipt (and in any event within one (1) Business Day of receipt) forward such Collections directly to a Government Receivables Account or Non-Government Receivables Account, as applicable, in the form received, and promptly notify Administrative Agent of such event. Until so forwarded, such Collections shall be held in trust for the benefit of Administrative Agent and Lenders.
(iv) No Credit Party shall withdraw any amounts from any Government Receivables Account, Non-Government Receivables Account, or any other deposit account that receives Collections, nor shall any Credit Party change any procedures or sweep instructions under any agreement governing a Government Receivables Account, Non-Government Receivables Account, or any other deposit account that receives Collections.
(v) Following a Trigger Event, in each case at the direction of Administrative Agent (subject to Section 2.6(f)):
A. each Credit Party shall execute with CIT Bank, N.A. and any Permitted Additional Deposit Account Bank (x) a deposit account control agreement for each Non- Government Receivables Account in form and substance acceptable to Administrative Agent and (y) an account instruction agreement for any Government Receivables Account in form and substance acceptable to Administrative Agent.
B. all funds deposited into any Non-Government Receivables Account or Government Receivables Account maintained at CIT Bank, N.A. or any other Permitted Additional Deposit Account Bank shall be immediately transferred into Administrative Agent’s Account for application to the Obligations in accordance with the terms and conditions of this Agreement. In addition, each Credit Party shall ensure that the net proceeds from any Asset Disposition and any proceeds of insurance or condemnation awards paid are paid directly or deposited into a Non-Government Receivables Account; and
42
C. No Credit Party shall change any procedures or sweep instructions under any agreement governing a Government Receivables Account, Non-Government Receivables Account, or any other deposit account receiving Collections.
(c) The Credit Parties will cooperate with Administrative Agent in the identification and reconciliation on a daily basis of all amounts received in any Non-Government Receivables Account and any Government Receivables Account. If more than five percent (5%) of the Collections since the most recent Funding Date are not identified or reconciled to the satisfaction of Administrative Agent within ten (10) Business Days of receipt, Administrative Agent shall not be obligated to make further Revolving Loans until such amount is identified or is reconciled to the reasonable satisfaction of Administrative Agent, as the case may be. In addition, if any such amount cannot be identified or reconciled to the satisfaction of Administrative Agent, Administrative Agent may utilize its own staff or, if it deems necessary, engage an outside auditor, in either case at the Borrowers’ expense (which in the case of Administrative Agent’s own staff shall be in accordance with Administrative Agent’s then prevailing customary charges (plus expenses)), to make such examination and report as may be necessary to identify and reconcile such amount.
(d) Notwithstanding anything in any account instruction agreement or deposit account agreement to the contrary, each Credit Party agrees that it shall be liable for any fees and charges in effect from time to time and charged by CIT Bank, N.A., and any Deposit Account Bank or any Permitted Additional Deposit Account Bank in connection with the Deposit Accounts or any other deposit accounts of any Credit Party, and that neither Administrative Agent nor any Lender shall have any liability therefor. Each Credit Party agrees that all payments made to Administrative Agent’s Account or otherwise received by Administrative Agent, whether in respect of the Accounts or as proceeds of other Collateral or otherwise, may be applied by Administrative Agent on account of the Obligations. Each Credit Party further acknowledges and agrees that, to the extent such fees and charges are not paid by such Credit Party directly but are satisfied using Collections in the Deposit Accounts, such fees and charges shall be deemed to be Revolving Loans made by Lenders hereunder and, to the extent that the payment of such fees or charges by such Credit Party as provided herein results in any Overadvance under Section 2.10 of this Agreement, such Credit Party agrees to immediately (upon notice to Borrower Representative) repay to Administrative Agent (for the benefit of itself and the Lenders) the amount of such Overadvance. Each Credit Party agrees to indemnify and hold Administrative Agent harmless from any and all liabilities, claims, losses and demands whatsoever, including the fees and disbursements of legal counsel for Administrative Agent, including the charges of internal legal counsel, arising from or relating to actions of Administrative Agent or any Permitted Additional Deposit Account Bank or Deposit Account Bank pursuant to this Section 2.6 or any deposit account agreement.
(e) All amounts received from a Government Receivables Account, Non- Government Receivables Account, any other deposit account that receives Collections, and any other proceeds of the Collateral deposited into Administrative Agent’s Account will, for the purposes of calculating the Borrowing Base and interest, be credited to the aggregate outstanding amount of the Revolving Loans on the date of deposit in Administrative Agent’s Account. No checks, drafts or other instruments received by Revolving Lender shall constitute final payment to Administrative Agent or any Revolving Lender unless and until such instruments have actually been collected.
43
(f) Following the occurrence of a Trigger Event, to the extent such Trigger Event is no longer continuing as determined by Administrative Agent in its reasonable discretion, the requirements set forth in Section 2.6(a)(iv) and Section 2.6(b)(v) (the “Trigger Event Actions”) shall no longer be required until such time as another Trigger Event shall occur; provided, that (i) any Trigger Event Action shall be in place for a minimum of ninety (90) days before it may be rescinded pursuant to this clause (f), (ii) Trigger Event Actions may not be rescinded pursuant to this clause (f) more than (A) one (1) time in any period of four (4) consecutive Fiscal Quarters and (B) three (3) times during the term of this Agreement.
2.7 Application of Proceeds of Collateral.
(a) Unless this Agreement expressly provides otherwise, so long as no Event of Default shall have occurred, Administrative Agent agrees to apply (i) all Collections received in the Administrative Agent’s Account to the aggregate outstanding amount of the Revolving Loans and (ii) any other payment received by Administrative Agent with respect to the Obligations, in such order and manner as Administrative Agent shall elect in the exercise of its reasonable discretion.
(b) If an Event of Default shall have occurred, Administrative Agent may apply Collections, any other proceeds of Collateral and all other payments received by Administrative Agent to the payment of the Obligations in such manner and in such order as Administrative Agent may elect in its sole discretion.
2.8 Borrower Representative Appointment. Each Borrower hereby irrevocably appoints the Borrower Representative, as agent for such Borrower on its behalf, to (i) request Revolving Loans from Administrative Agent, (ii) to give and receive notices under the Loan Documents and (iii) take all other action which the Borrower Representative or the Borrowers are permitted or required to take under this Agreement.
2.9 Collective Borrowing Arrangement; Revolving Loan Account.
(a) The Borrowers have informed Administrative Agent that: (i) in order to increase the efficiency, profitability and productivity of each Borrower, the Borrower Representative has established a centralized cash management system for the Borrowers that entails, in part, central disbursement and operating accounts in which the Borrower Representative provides the working capital needs of each of the other Borrowers and manages and timely pays the accounts payable of each of the other Borrowers; and (ii) all of the Borrowers presently engage in an integrated operation that requires financing on an integrated basis, and each Borrower expects to benefit from the continued successful performance of such integrated operations. Therefore, in order to best utilize the borrowing powers of the Borrowers in the most effective and cost efficient manner and to avoid adverse effects on the operating efficiencies of each Borrower and the existing back-office practices of the Borrowers, each Borrower has requested that all Revolving Loans be disbursed solely upon the request of the Borrower Representative and to bank accounts managed solely by the Borrower Representative, it being the intent and desire of the Borrowers that the Borrower Representative manage for the benefit of each Borrower the expenditure and usage of such funds.
(b) Administrative Agent shall charge the Revolving Loan Account for all Revolving Loans made to the Borrower Representative, or otherwise for any Borrower’s account. Subject to the provisions of Section 2.7 above, Administrative Agent will credit the Revolving Loan Account with all amounts received by Administrative Agent from any Deposit Account or from others for the Borrowers’ account, including, as set forth above, all amounts received by Administrative Agent in payment of Accounts, and such amounts will be applied to payment of the Obligations in the order and manner set forth herein. In no event shall prior recourse to any Account or other security granted to or by the Borrowers be a prerequisite to Administrative Agent’s right to demand payment of any of the Obligations. In addition, the Borrowers agree that Administrative Agent shall have no obligation whatsoever to perform in any respect any Borrower’s contracts or obligations relating to the Accounts.
44
2.10 Repayment of Overadvances. If at any time (a) the sum of the outstanding balance of Revolving Loans exceeds the Revolving Commitments, or (b) an Overadvance exists, the amount of such excess (in the case of clause (a)) or the amount of the Overadvance (in the case of clause (b)) shall be immediately due and payable, unless Administrative Agent otherwise agrees in writing. Should Administrative Agent for any reason honor requests for Overadvances, such Overadvances shall be made in Administrative Agent’s sole discretion and subject to any additional terms that Administrative Agent may require in its sole discretion.
2.11 Monthly Statement. After the end of each month, Administrative Agent agrees to prepare and make available to the Borrowers (by mail, facsimile, e-mail or posting to CIT’s System, as mutually agreed to by the Borrower Representative and CIT), a statement showing the accounting for the charges, loans, advances and other transactions occurring among Administrative Agent, the Borrower Representative and each Borrower during that month. Absent manifest error, each monthly statement shall be deemed correct and binding upon each Borrower and the Borrower Representative, and shall constitute an account stated between the Borrowers and the Borrower Representative and Administrative Agent unless Administrative Agent receives a written statement of exception from the Borrowers, the Borrower Representative or any Revolving Lender within thirty (30) days of the date of such monthly statement.
2.12 Access to CIT’s System. Administrative Agent shall provide Borrower Representative access to CIT’s System during normal business hours, for the purposes of (i) obtaining information regarding loan balances and Net Availability, and (ii) if permitted by Administrative Agent, making requests for Revolving Loans and submitting Borrowing Base Reports. Such access shall be subject to the following terms, in addition to all terms set forth on the website for CIT’s System:
(a) Administrative Agent shall provide to the Borrower Representative an initial password for secured access to CIT’s System. The Borrower Representative shall provide Administrative Agent with a list of officers and employees that are authorized from time to time to access CIT’s System, and the Borrower Representative agrees to limit access to the password and CIT’s System to such authorized officers and employees. After the initial access, the Borrower Representative shall be solely responsible for (i) changing and maintaining the integrity of the Borrower Representative’s password and (ii) any unauthorized use of the Borrower Representative’s password or CIT’s System by any Borrower’s officers and employees.
(b) The Borrowers shall use CIT’s System and the Borrowers’ information thereon solely for the purposes permitted above, and shall not access CIT’s System for the benefit of third parties or provide any information obtained from CIT’s System to third parties. Administrative Agent makes no representation that loan balance or Net Availability information is or will be available, accurate, complete, correct or current at all times. CIT’s System may be inoperable or inaccessible from time to time, whether for required website maintenance, upgrades to CIT’s System, or for other reasons, and in any such event the Borrower Representative must obtain loan balance and Net Availability information, and (if permitted by Administrative Agent) make requests for Revolving Loans and submit Borrowing Base Reports using other available means.
(c) The Borrowers hereby confirm and agree that CIT’s System consists of proprietary software, data, tools, scripts, algorithms, business logic, website designs and interfaces and related intellectual property, information and documentation. CIT’s System and related intellectual property, information and documentation are the sole and exclusive property of Administrative Agent, and the Borrowers shall have no right, title or interest therein or thereto, except for the limited right to access CIT’s System for the purposes permitted above. Upon termination of this Agreement, the Borrowers agree to cease any use of CIT’s System.
45
All agreements, covenants and representations and warranties made by the Borrower Representative in any Borrowing Base Report submitted to Administrative Agent by means of CIT’s System are incorporated herein by reference and shall be deemed to be made by each Borrower.
2.13 Interest.
(a) Interest shall accrue on the outstanding principal balance of each Loan from the date made until such Loan is paid in full at a rate per annum equal to the LIBO Rate plus the Applicable Margin. Accrued interest on the Loans shall be due and payable on the first day of each month. All interest rates shall be calculated based on the basis of a year of 360 days, and shall be payable for the actual number of days elapsed.
(b) Upon the occurrence of an Event of Default, all Obligations may, at the election of Administrative Agent or Required Lenders (unless an Event of Default exists pursuant to Section 9.1(e), in which event such an election shall be deemed to have automatically occurred without any further action of Administrative Agent or the Required Lenders), bear interest at the Default Rate until such Event of Default is waived in writing by the Required Lenders, commencing upon the occurrence of such Event of Default, notwithstanding when such election is made.
(c) All contractual rates of interest chargeable on outstanding principal under the Loans shall continue to accrue and be paid even after Default, an Event of Default, maturity, judgment, Insolvency Proceedings or the happening of any other event or occurrence similar or dissimilar to the foregoing.
2.14 Fees and Charges.
(a) Borrowers shall pay to Administrative Agent, for Administrative Agent’s own account, fees in the amounts and at the times set forth in that certain letter agreement between the Borrowers and Administrative Agent dated as of the date hereof (as amended, restated, supplemented or otherwise modified from time to time, the “Fee Letter”).
(b) On the first day of each Fiscal Quarter and on the Revolving Loan Termination Date and as otherwise provided in this Agreement, Borrowers shall pay to Administrative Agent, for the benefit of Lenders in accordance with their Pro Rata Shares, an unused fee in an amount equal to 0.25% per annum of the difference derived by subtracting (i) the average daily Outstanding Amount during the immediately preceding quarter, from (ii) the Revolving Commitments.
(c) In consideration of the issuance of any Letter of Credit Guaranty by Agent or other assistance of Administrative Agent and the Lenders in obtaining Letters of Credit pursuant to Section 2.24 hereof, the Borrowers agree to pay to Administrative Agent, for the ratable benefit of the Lenders, a Letter of Credit Guaranty Fee equal to the Applicable Margin per annum on the face amount of each Letter of Credit. All Letter of Credit Guaranty Fees shall be due and payable monthly on the first day of each month. In addition, Borrowers shall pay directly to each Issuing Bank (or, if applicable, the Letter of Credit Guarantor) for its own account a fronting fee with respect to each Letter of Credit issued (or guaranteed) by it in an amount to be determined at the issuance of such Letter of Credit based on a percentage of the daily maximum amount then available to be drawn under such Letter of Credit (determined without regard to whether any conditions to drawing could then be met.
46
(d) Borrowers agree to reimburse Administrative Agent for any and all charges, fees, commissions, costs and expenses (including interest and letter of credit fee expenses) charged to Administrative Agent’s account by an Issuing Bank in connection with, or arising out of, Letters of Credit or out of transactions relating thereto, when charged to or paid by Administrative Agent, or as may be due upon any termination of this Agreement.
(e) In the event the Revolving Facility or this Agreement is terminated for any reason (including upon any termination of this Agreement or acceleration of the Obligations by Administrative Agent or Required Lenders under Section 9.2 upon the occurrence of an Event of Default) on an Early Termination Date, the Early Termination Fee shall be due and payable in full on the Early Termination Date to Administrative Agent, for the benefit of Lenders in accordance with their Pro Rata Shares, together with all other Obligations; provided, so long as no Event of Default has occurred and is continuing (including any acceleration of the Obligations by Administrative Agent or Required Lenders under Section 9.2 upon the occurrence of an Event of Default), to the extent the Borrowing Base has been adjusted or additional reserves (not including such reserves as are in place as of the Availability Date) have been withheld therefrom pursuant to Section 2.2 in a manner that results (measured on a cumulative basis to include all such adjustments and additional reserves) in a reduction of Availability greater than ten percent (10.0%) as compared to the Availability determined without such adjustments and additional reserves, the Early Termination Fee shall not apply.
(f) All fees hereunder shall be computed on the basis of a year of 360 days and calculated for the actual number of days elapsed in each calculation period. All fees hereunder shall be non-refundable and deemed fully earned when due and payable.
(g) The Borrowers agree to reimburse Administrative Agent and the Lenders for all Expenses when charged to or paid by Administrative Agent or the Lenders.
2.15 Evidence of Indebtedness. The Loans made by any Lender shall be evidenced by one or more Revolving Loan Accounts. The Revolving Loan Accounts maintained by Administrative Agent shall be prima facie evidence of the existence and amounts of the Loans and shall be conclusive absent manifest error with respect to the amount of the Loans and the interest and payments thereon. Any failure to so record or any error in doing so shall not, however, limit or otherwise affect the obligation of the Borrowers hereunder to pay any amount owing with respect to the Obligations. The Borrowers shall, upon the request of any Lender, execute and deliver to Administrative Agent a Revolving Note for such Lender, which Note shall evidence such Lender’s applicable Loans in addition to such accounts or records. Each Lender may attach schedules to its Note and endorse thereon the date, amount and maturity of its Loans and payments with respect thereto.
2.16 Payments Generally. All payments to be made by Borrowers shall be made without condition or deduction for any counterclaim, defense, recoupment or set-off. Except as otherwise expressly provided herein, all payments by Borrowers hereunder shall be made in Dollars immediately available to Administrative Agent, on behalf of Lenders, by 11:00 a.m. (Eastern time), on the date such payment is due, to Administrative Agent by deposit to Administrative Agent’s Account or to such other deposit account as Administrative Agent may designate by written notice to Borrower Representative. All payments received by Administrative Agent after 11:00 a.m. (Eastern time) shall be deemed received on the next succeeding Business Day and any applicable interest or fee shall continue to accrue. If any payment to be made by Borrowers shall become due on a day other than a Business Day, payment shall be made on the next following Business Day. Each Borrower hereby grants to Administrative Agent the right, in Administrative Agent’s discretion, without notice to any Borrower, to make Loans to make payments on the Obligations, including any and all interest, fees and Expenses, as and when due hereunder. Each Borrower acknowledges that such Borrower’s failure to maintain sufficient funds in any deposit account for payment of any of the Obligations, or Administrative Agent’s failure to make a Loan or withdrawal from any deposit account shall not relieve Borrowers of any payment obligation hereunder or any other Loan Document.
47
2.17 Protective Advances. (a) Borrowers and Lenders authorize Administrative Agent, in its sole discretion, at any time that at (i) any Obligations remain outstanding and (ii) a Default or Event of Default exists or any conditions in Article 3 are not satisfied, and without regard to the Revolving Commitments or the Borrowing Base, to make Revolving Loans (“Protective Advances”) (A) in such amounts as Administrative Agent deems necessary or desirable to preserve or protect any Collateral, or to enhance the collectability or repayment of Obligations, or (B) to pay any other amounts chargeable to Borrowers under any Loan Documents, including fees, Expenses, taxes, assessments, insurance, repairs, maintenance, storage and other charges and expenditures upon, against or otherwise relating to the Collateral; provided, however, that the aggregate amount of Protective Advances outstanding at any time shall not exceed ten percent (10%) of the Revolving Commitments without the consent of the Required Lenders. All Protective Advances constitute Obligations, are secured by the Collateral, and shall be treated for all purposes as Revolving Loans.
(b) Upon Administrative Agent’s making of any Protective Advances under this Section 2.17, each of the Lenders shall be deemed to have irrevocably, unconditionally and immediately purchased from Administrative Agent a participation in such Protective Advances in an amount equal to such Lender’s Pro Rata Share of the Revolving Commitments multiplied by the total amount of such Protective Advances outstanding under this Section 2.17. Each Lender shall effect such purchase by making available the amount of such Lender’s participation in such Protective Advances in Dollars in immediately available funds to Administrative Agent’s Account. In the event any Lender fails to make available to Administrative Agent when due the amount of such Lender’s participation in such Protective Advances, Administrative Agent shall be entitled to recover such amount on demand from such Lender together with interest at the Federal Funds Effective Rate (it being understood that Administrative Agent’s determination of such rate shall be binding and conclusive absent manifest error). Each such purchase by a Lender shall be made without recourse to Administrative Agent, without representation or warranty of any kind, and shall be effected and evidenced pursuant to documents reasonably acceptable to Administrative Agent. The obligations of the Lenders under this Section 2.17(b) shall be absolute, irrevocable and unconditional, shall be made under all circumstances and shall not be affected, reduced or impaired for any reason whatsoever.
2.18 Taxes.
(a) Defined Terms. For purposes of this Section 2.18, the term “Lender” includes any Issuing Bank and the term “Applicable Law” includes FATCA.
(b) Payments Free of Taxes. Any and all payments by or on account of any obligation of any Credit Party under any Loan Document shall be made without deduction or withholding for any Taxes, except as required by Applicable Law. If any Applicable Law (as determined in the reasonable discretion of Administrative Agent) requires the deduction or withholding of any Tax from any such payment by Administrative Agent or a Credit Party, then Administrative Agent or such Credit Party shall be entitled to make such deduction or withholding and shall timely pay the full amount deducted or withheld to the relevant Governmental Authority in accordance with Applicable Law and, if such Tax is an Indemnified Tax, then the sum payable by the applicable Credit Party shall be increased as necessary so that after such deduction or withholding has been made (including such deductions and withholdings applicable to additional sums payable under this Section) the applicable Recipient receives an amount equal to the sum it would have received had no such deduction or withholding been made.
48
(c) Payment of Other Taxes by the Credit Parties. The Credit Parties shall timely pay to the relevant Governmental Authority in accordance with Applicable Law, or at the option of Administrative Agent timely reimburse it for the payment of, any Other Taxes.
(d) Indemnification by the Borrower. The Credit Parties shall jointly and severally indemnify each Recipient, within ten (10) days after demand therefor, for the full amount of any Indemnified Taxes (including Indemnified Taxes imposed or asserted on or attributable to amounts payable under this Section) payable or paid by such Recipient or required to be withheld or deducted from a payment to such Recipient and any reasonable expenses arising therefrom or with respect thereto, whether or not such Indemnified Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate as to the amount of such payment or liability delivered to the Credit Parties by a Lender (with a copy to Administrative Agent), or by Administrative Agent on its own behalf or on behalf of a Lender, shall be conclusive absent manifest error.
(e) Indemnification by the Lenders. Each Lender shall severally indemnify Administrative Agent, within ten (10) days after demand therefor, for (i) any Indemnified Taxes attributable to such Lender (but only to the extent that any Credit Party has not already indemnified Administrative Agent for such Indemnified Taxes and without limiting the obligation of the Credit Parties to do so), (ii) any Taxes attributable to such Lender’s failure to comply with the provisions of Article 10 relating to the maintenance of a Participant Register and (iii) any Excluded Taxes attributable to such Lender, in each case, that are payable or paid by Administrative Agent in connection with any Loan Document, and any reasonable expenses arising therefrom or with respect thereto, whether or not such Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate as to the amount of such payment or liability delivered to any Lender by Administrative Agent shall be conclusive absent manifest error. Each Lender hereby authorizes Administrative Agent to set off and apply any and all amounts at any time owing to such Lender under any Loan Document or otherwise payable by Administrative Agent to the Lender from any other source against any amount due to Administrative Agent under this Section 2.18(e).
(f) Evidence of Payments. As soon as practicable after any payment of Taxes by any Credit Party to a Governmental Authority pursuant to this Section 2.18, such Credit Party shall deliver to Administrative Agent the original or a certified copy of a receipt issued by such Governmental Authority evidencing such payment, a copy of the return reporting such payment or other evidence of such payment reasonably satisfactory to Administrative Agent.
(g) Status of Lenders.
(i) Any Lender that is entitled to an exemption from or reduction of withholding Tax with respect to payments made under any Loan Document shall deliver to the Borrowers and Administrative Agent, at the time or times reasonably requested by the Borrowers or Administrative Agent, such properly completed and executed documentation reasonably requested by the Borrowers or Administrative Agent as will permit such payments to be made without withholding or at a reduced rate of withholding. In addition, any Lender, if reasonably requested by the Borrowers or Administrative Agent, shall deliver such other documentation prescribed by Applicable Law or reasonably requested by the Borrowers or Administrative Agent as will enable the Borrowers or Administrative Agent to determine whether or not such Lender is subject to backup withholding or information reporting requirements. Notwithstanding anything to the contrary in the preceding two sentences, the completion, execution and submission of such documentation (other than such documentation set forth in clauses (ii)(A), (ii)(B) and (ii)(D) below) shall not be required if in the Lender’s reasonable judgment such completion, execution or submission would subject such Lender to any material unreimbursed cost or expense or would materially prejudice the legal or commercial position of such Lender.
49
(ii) Without limiting the generality of the foregoing, if any Borrower is a U.S. Person,
A. any Lender that is a U.S. Person shall deliver to the Borrowers and Administrative Agent on or prior to the date on which such Lender becomes a Lender hereunder (and from time to time thereafter upon the reasonable request of the Borrowers or Administrative Agent), executed copies of IRS Form W-9 certifying that such Lender is exempt from U.S. federal backup withholding tax;
B. any Foreign Lender shall, to the extent it is legally entitled to do so, deliver to the Borrowers and Administrative Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender hereunder (and from time to time thereafter upon the reasonable request of the Borrowers or Administrative Agent), whichever of the following is applicable:
1. in the case of a Foreign Lender claiming the benefits of an income tax treaty to which the United States is a party (x) with respect to payments of interest under any Loan Document, executed copies of IRS Form W-8BEN or IRS Form W-8BEN-E establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “interest” article of such tax treaty and (y) with respect to any other applicable payments under any Loan Document, IRS Form W-8BEN or IRS Form W-8BEN-E establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “business profits” or “other income” article of such tax treaty;
2. executed copies of IRS Form W-8ECI;
3. in the case of a Foreign Lender claiming the benefits of the exemption for portfolio interest under Section 881(c) of the Code, (x) a certificate substantially in form reasonably acceptable to Administrative Agent to the effect that such Foreign Lender is not a “bank” within the meaning of Section 881(c)(3)(A) of the Code, a “10 percent shareholder” of any Borrower (or any Person from whom any Borrower is disregarded as a separate entity for U.S. federal income tax purposes) within the meaning of Section 881(c)(3)(B) of the Code, or a “controlled foreign corporation” described in Section 881(c)(3)(C) of the Code (a “U.S. Tax Compliance Certificate”) and (y) executed copies of IRS Form W-8BEN or IRS Form W-8BEN-E; or
4. to the extent a Foreign Lender is not the beneficial owner, executed copies of IRS Form W-8IMY, accompanied by IRS Form W-8ECI, IRS Form W-8BEN or IRS Form W-8BEN-E, a U.S. Tax Compliance Certificate substantially in the form reasonably acceptable to Administrative Agent, IRS Form W-9, and/or other certification documents from each beneficial owner, as applicable; provided that if the Foreign Lender is a partnership and one or more direct or indirect partners of such Foreign Lender are claiming the portfolio interest exemption, such Foreign Lender may provide a U.S. Tax Compliance Certificate substantially in the form reasonably acceptable to Administrative Agent on behalf of each such direct and indirect partner;
50
C. any Foreign Lender shall, to the extent it is legally entitled to do so, deliver to the Borrowers and Administrative Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender hereunder (and from time to time thereafter upon the reasonable request of the Borrowers or Administrative Agent), executed copies of any other form prescribed by Applicable Law as a basis for claiming exemption from or a reduction in U.S. federal withholding Tax, duly completed, together with such supplementary documentation as may be prescribed by Applicable Law to permit the Borrowers or Administrative Agent to determine the withholding or deduction required to be made; and
D. if a payment made to a Lender under any Loan Document would be subject to U.S. federal withholding Tax imposed by FATCA if such Lender were to fail to comply with the applicable reporting requirements of FATCA (including those contained in Section 1471(b) or 1472(b) of the Code, as applicable), such Lender shall deliver to the Borrowers and Administrative Agent at the time or times prescribed by Law and at such time or times reasonably requested by the Borrowers or Administrative Agent such documentation prescribed by Applicable Law (including as prescribed by Section 1471(b)(3)(C)(i) of the Code) and such additional documentation reasonably requested by the Borrowers or Administrative Agent as may be necessary for the Borrowers and Administrative Agent to comply with their obligations under FATCA and to determine that such Lender has complied with such Lender’s obligations under FATCA or to determine the amount to deduct and withhold from such payment. Solely for purposes of this clause (D), “FATCA” shall include any amendments made to FATCA after the date of this Agreement.
Each Lender agrees that if any form or certification it previously delivered expires or becomes obsolete or inaccurate in any respect, it shall update such form or certification or promptly notify the Borrowers and Administrative Agent in writing of its legal inability to do so.
(h) Treatment of Certain Refunds. If any party determines, in its sole discretion exercised in good faith, that it has received a refund of any Taxes as to which it has been indemnified pursuant to this Section 2.18 (including by the payment of additional amounts pursuant to this Section 2.18), it shall pay to the indemnifying party an amount equal to such refund (but only to the extent of indemnity payments made under this Section with respect to the Taxes giving rise to such refund), net of all out-of-pocket expenses (including Taxes) of such indemnified party and without interest (other than any interest paid by the relevant Governmental Authority with respect to such refund). Such indemnifying party, upon the request of such indemnified party, shall repay to such indemnified party the amount paid over pursuant to this Section 2.18(h) (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) if such indemnified party is required to repay such refund to such Governmental Authority. Notwithstanding anything to the contrary in this Section 2.18(h), in no event will the indemnified party be required to pay any amount to an indemnifying party pursuant to this Section 2.18(h) the payment of which would place the indemnified party in a less favorable net after-Tax position than the indemnified party would have been in if the Tax subject to indemnification and giving rise to such refund had not been deducted, withheld or otherwise imposed and the indemnification payments or additional amounts with respect to such Tax had never been paid. This Section 2.18(h) shall not be construed to require any indemnified party to make available its Tax returns (or any other information relating to its Taxes that it deems confidential) to the indemnifying party or any other Person.
51
(i) Survival. Each party’s obligations under this Section 2.18 shall survive the resignation or replacement of Administrative Agent or any assignment of rights by, or the replacement of, a Lender, the termination of the Revolving Commitments and the repayment, satisfaction or discharge of all obligations under any Loan Document.
2.19 Increased Costs.
(a) Increased Costs Generally. If any Change in Law shall:
(i) impose, modify or deem applicable any reserve, special deposit, compulsory loan, insurance charge or similar requirement against assets of, deposits with or for the account of, or credit extended or participated in by, any Lender or any Issuing Bank;
(ii) subject any Recipient to any Taxes (other than (A) Indemnified Taxes, (B) Taxes described in clauses (b) through (d) of the definition of “Excluded Taxes”, and (C) Connection Income Taxes) on its loans, loan principal, letters of credit, commitments, or other obligations, or its deposits, reserves, other liabilities or capital attributable thereto; or
(iii) impose on any Lender or any Issuing Bank or the London interbank market any other condition, cost or expense (other than Taxes) affecting this Agreement or Loans made by such Lender or any Letter of Credit or participation therein;
and the result of any of the foregoing shall be to increase the cost to such Lender or such other Recipient of making, converting to, continuing or maintaining any Loan or of maintaining its obligation to make any such Loan, or to increase the cost to such Lender, such Issuing Bank or such other Recipient of participating in, issuing or maintaining any Letter of Credit (or of maintaining its obligation to participate in or to issue any Letter of Credit), or to reduce the amount of any sum received or receivable by such Lender, Issuing Bank or other Recipient hereunder (whether of principal, interest or any other amount) then, upon request of such Lender, Issuing Bank or other Recipient, the Borrowers will pay to such Lender, Issuing Bank or other Recipient, as the case may be, such additional amount or amounts as will compensate such Lender, Issuing Bank or other Recipient, as the case may be, for such additional costs incurred or reduction suffered.
(b) Capital Requirements. If any Lender or Issuing Bank determines that any Change in Law affecting such Lender or Issuing Bank or any lending office of such Lender or such Lender’s or Issuing Bank’s holding company, if any, regarding capital or liquidity requirements, has or would have the effect of reducing the rate of return on such Lender’s or Issuing Bank’s capital or on the capital of such Lender’s or Issuing Bank’s holding company, if any, as a consequence of this Agreement, the Revolving Commitments of such Lender or the Loans made by, or participations in Letters of Credit held by such Lender, or the Letters of Credit issued by any Issuing Bank, to a level below that which such Lender or Issuing Bank or such Lender’s or Issuing Bank’s holding company could have achieved but for such Change in Law (taking into consideration such Lender’s or Issuing Bank’s policies and the policies of such Lender’s or Issuing Bank’s holding company with respect to capital adequacy), then from time to time the Borrowers will pay to such Lender or Issuing Bank, as the case may be, such additional amount or amounts as will compensate such Lender or Issuing Bank or such Lender’s or Issuing Bank’s holding company for any such reduction suffered.
(c) Certificates for Reimbursement. A certificate of a Lender or Issuing Bank setting forth the amount or amounts necessary to compensate such Lender or Issuing Bank or its holding company, as the case may be, as specified in Sections 2.19(a) or (b) and delivered to the Borrowers, shall be conclusive absent manifest error. The Borrowers shall pay such Lender or Issuing Bank, as the case may be, the amount shown as due on any such certificate within 10 days after receipt thereof.
52
(d) Delay in Requests. Failure or delay on the part of any Lender or Issuing Bank to demand compensation pursuant to this Section shall not constitute a waiver of such Lender’s or Issuing Bank’s right to demand such compensation; provided that the Borrowers shall not be required to compensate a Lender or Issuing Bank pursuant to this Section for any increased costs incurred or reductions suffered more than nine months prior to the date that such Lender or Issuing Bank, as the case may be, notifies the Borrowers of the Change in Law giving rise to such increased costs or reductions, and of such Lender’s or Issuing Bank’s intention to claim compensation therefor (except that, if the Change in Law giving rise to such increased costs or reductions is retroactive, then the nine-month period referred to above shall be extended to include the period of retroactive effect thereof).
2.20 Inability to Determine Rate; Alternate Rate of Interest.
(a) If prior to the commencement of any Interest Period for a Borrowing of LIBOR Loans:
(i) Administrative Agent determines (which determination shall be conclusive absent manifest error) that adequate and reasonable means do not exist for ascertaining the LIBO Rate (including because the LIBO Screen Rate is not available or published on a current basis), for such Interest Period; or
(ii) Administrative Agent is advised by the Required Lenders that the LIBO Rate, for such Interest Period will not adequately and fairly reflect the cost to such Lenders (or Lender) of making or maintaining their Loans (or its Loan) at the LIBO Rate for such Interest Period;
then Administrative Agent shall give notice thereof to the Borrower Representative and the Lenders by telephone or telecopy as promptly as practicable thereafter and, until Administrative Agent notifies the Borrower Representative and the Lenders that the circumstances giving rise to such notice no longer exist, if any request pursuant to Section 2.3 requests a borrowing of a LIBOR Loan, such borrowing shall be made at the Alternate Base Rate plus the Applicable Margin.
(b) If at any time Administrative Agent determines (which determination shall be conclusive absent manifest error) that (i) the circumstances set forth in clause (a)(i) have arisen and such circumstances are unlikely to be temporary or (ii) the circumstances set forth in clause (a)(i) have not arisen but the supervisor for the administrator of the LIBO Screen Rate or a Governmental Authority having jurisdiction over Administrative Agent has made a public statement identifying a specific date after which the LIBO Screen Rate shall no longer be used for determining interest rates for loans, then Administrative Agent and the Borrower Representative shall endeavor to establish an alternate rate of interest to the LIBO Rate that gives due consideration to the then prevailing market convention for determining a rate of interest for syndicated loans in the United States at such time, and shall enter into an amendment to this Agreement to reflect such alternate rate of interest and such other related changes to this Agreement as may be applicable (but for the avoidance of doubt, such related changes shall not include a reduction of the Applicable Margin). Notwithstanding anything to the contrary in Section 11.4(b), such amendment shall become effective without any further action or consent of any other party to this Agreement so long as Administrative Agent shall not have received, within five (5) Business Days of the date notice of such alternate rate of interest is provided to the Lenders, a written notice from the Required Lenders stating that such Required Lenders object to such amendment. Until an alternate rate of interest shall be determined in accordance with this clause (b) (but, in the case of circumstances described in clause (ii) of the first sentence of this clause (b), only to the extent the LIBO Screen Rate for such Interest Period is not available or published at such time on a current basis) any request pursuant to Section 2.3 shall be made at the Alternate Base Rate plus the Applicable Margin; provided that, if such alternate rate of interest shall be less than zero, such rate shall be deemed to be zero for the purposes of this Agreement.
53
2.21 Effective Date and Termination. This Agreement shall become effective on the Closing Date and shall continue in full force and effect until the Revolving Loan Termination Date unless sooner terminated as herein provided. Borrowers may terminate this Agreement prior to the Revolving Loan Termination Date with at least thirty (30) Business Days’ prior written notice thereof to Administrative Agent, upon (a) the payment in full of all outstanding Loans, together with accrued and unpaid interest thereon, (b) the cancellation and return of all outstanding Letters of Credit (or alternatively, with respect to each such Letter of Credit, the furnishing to the Issuing Bank of cash collateral as required by Section 9.2(c), (c) the payment in full of the Early Termination Fee, and (d) the payment in full of all fees, Expenses and other Obligations together with accrued and unpaid interest thereon.
2.22 Effect of Termination. The termination of this Agreement shall not affect any Credit Party’s, Administrative Agent’s, any Lender’s or any Lender Affiliate’s rights, or any of the Obligations having their inception prior to the effective date of such termination, and the provisions hereof shall continue to be fully operative until all transactions entered into, rights or interests created or Obligations have been fully disposed of, concluded or liquidated. The security interests, Liens and rights granted to Administrative Agent and Lenders hereunder and under the other Loan Documents shall continue in full force and effect, notwithstanding the termination of this Agreement or the fact that the Revolving Facility may from time to time be temporarily in a zero position, until all of the Obligations of each Credit Party have been paid in full after the termination of this Agreement or each Credit Party has furnished Administrative Agent with an indemnification satisfactory to Administrative Agent and the Issuing Bank with respect thereto. Accordingly, each Credit Party waives any rights which it may have under the UCC to demand the filing of termination statements with respect to the Collateral, and Administrative Agent shall not be required to send such termination statements to each Credit Party, or to file them with any filing office, unless and until this Agreement shall have been terminated in accordance with its terms and all Obligations shall have been paid in full in immediately available funds.
2.23 LIBOR Breakage. Borrowers shall indemnify each Lender against any loss or expense that such Lender may sustain or incur as a consequence of any event, other than a default by such Lender in the performance of its obligations hereunder, which results in (i) such Lender receiving or being deemed to receive any amount on account of the principal of any Loan prior to the end of the interest period in effect therefor, or (ii) any Loan to be made by such Lender not being made after notice of such Loan shall have been given by Borrowers hereunder (any of the events referred to in this sentence being called a “Breakage Event”). In the case of any Breakage Event, such loss shall include an amount equal to the excess, as reasonably determined by such Lender, of (i) its cost of obtaining funds for the Loan that is the subject of such Breakage Event for the period from the date of such Breakage Event to the last day of the interest period in effect (or that would have been in effect) for such Loan over (ii) the amount of interest likely to be realized by such Lender in redeploying the funds released or not utilized by reason of such Breakage Event for such period. A certificate of any Lender setting forth in reasonable detail the basis for and the calculation of the amount or amounts which such Lender is entitled to receive pursuant to this Section 2.23 shall be delivered to Borrower Representative (with a copy to Administrative Agent) and shall be conclusive absent manifest error.
54
2.24 Letters of Credit. In order to assist the Borrowers (or any of them) in establishing or opening Letters of Credit with an Issuing Bank, the Borrowers have requested that the Lenders (acting through Administrative Agent) join in the applications for such Letters of Credit, and/or guarantee payment or performance of such Letters of Credit and any drafts or acceptances thereunder through the issuance of one or more Letter of Credit Guaranties, thereby lending the Lenders’ credit to the Borrowers, and Administrative Agent and the Lenders have agreed to do so. These arrangements shall be handled by Administrative Agent subject to satisfaction of the conditions set forth in Section 3.1, or Section 3.2 hereof, as applicable, and the terms and conditions set forth below.
(a) Assistance and Purpose. Within the Revolving Commitments and subject to sufficient Net Availability, the Lenders (acting through Administrative Agent) shall assist the Borrowers in obtaining Letters of Credit in an aggregate undrawn amount outstanding at any time not to exceed the Letter of Credit Sublimit. The term, form and purpose of each Letter of Credit and all documentation in connection therewith, and any amendments, modifications or extensions thereof, must be mutually acceptable to Administrative Agent, the Issuing Bank and the Borrower Representative, provided that the Borrowers shall not request a Letter of Credit to support the purchase of domestic Inventory or to secure present or future indebtedness owed to suppliers of domestic Inventory. Notwithstanding any other provision of this Agreement to the contrary, if a Default or Event of Default shall have occurred and remain outstanding, Administrative Agent’s and the Lenders’ assistance in connection with any Letter of Credit shall be in the discretion of the Required Lenders.
(b) Authority to Charge Revolving Loan Account. The Borrowers hereby authorize Administrative Agent, without notice to the Borrowers, to charge the Revolving Loan Account with the amount of all indebtedness, liabilities and obligations of any kind incurred by Administrative Agent or the Lenders under a Letter of Credit Guaranty, including the charges of an Issuing Bank, as such indebtedness, liabilities and obligations are charged to or paid by Administrative Agent or the Lenders, or, if earlier, upon the occurrence of an Event of Default. Any amount charged to the Revolving Loan Account shall incur interest at the rate provided in Section 2.13(a) or (b) (as applicable) of this Agreement. The Borrowers confirm that any charges which Administrative Agent may make to the Revolving Loan Account as provided herein will be made as an accommodation to the Borrowers and solely at Administrative Agent’s discretion.
(c) Indemnity Relating to Letters of Credit. Each Borrower jointly and severally unconditionally indemnifies Administrative Agent and the Lenders, and holds Administrative Agent and the Lenders harmless from any and all loss, claim or liability incurred by Administrative Agent or the Lenders arising from any transactions or occurrences relating to Letters of Credit established or opened for any Borrower’s account, the Collateral relating thereto and any drafts or acceptances thereunder, and all Obligations thereunder, including any such loss, claim or liability arising from any error, omission, negligence, misconduct or other action taken by an Issuing Bank, other than for any such loss, claim or liability arising out of the gross negligence or willful misconduct by Administrative Agent with respect to a Letter of Credit Guaranty. This indemnity shall survive the termination of this Agreement and the repayment of the Obligations.
(d) Compliance of Goods, Documents and Shipments with Agreed Terms. Administrative Agent shall not be responsible for: (a) the existence, character, quality, quantity, condition, packing, value or delivery of the goods purporting to be represented by any documents relating to any Letter of Credit; (b) any difference or variation in the character, quality, quantity, condition, packing, value or delivery of the goods from that expressed in such documents; (c) the validity, sufficiency or genuineness of such documents or of any endorsements thereon, even if such documents should in fact prove to be in any or all respects invalid, insufficient, fraudulent or forged; (d) the time, place, manner or order in which shipment is made; (e) partial or incomplete shipment, or failure or omission to ship any or all of the goods referred to in the Letters of Credit or documents relating thereto; (f) any deviation from instructions; (g) delay, default, or fraud by the shipper and/or anyone else in connection with the goods or the shipping thereof; or (h) any breach of contract between the shipper or vendors and any Borrower.
55
(e) Participation in Letters of Credit.
(i) Concurrently with the issuance of each Letter of Credit, Administrative Agent shall be deemed to have sold and transferred to each Lender, and each such Lender shall be deemed irrevocably and immediately to have purchased and received from Administrative Agent, without recourse or warranty, an undivided interest and participation in, to the extent of such Lender’s Pro Rata Share, Administrative Agent’s liabilities and obligations in respect of such Letter of Credit and Borrowers’ Reimbursement Obligations with respect thereto. Any purchase obligation arising pursuant to the immediately preceding sentence shall be absolute and unconditional and shall not be affected by any circumstances whatsoever.
(ii) If Administrative Agent makes any payment or disbursement under any Letter of Credit Guaranty and (i) Borrowers have not reimbursed Administrative Agent, as applicable, in full for such payment or disbursement in accordance with Section 2.24(b), or (ii) any reimbursement under any Letter of Credit Guaranty received by Administrative Agent from any Credit Party is or must be returned or rescinded upon or during any bankruptcy or reorganization of any Credit Party or otherwise, each Lender shall be irrevocably and unconditionally obligated to pay to Administrative Agent its Pro Rata Share of such payment or disbursement (but no such payment shall diminish the Obligations of Borrowers under Section 2.24(b)). To the extent any such Lender shall not have made such amount available to Administrative Agent by 12:00 p.m. (Eastern time) on the Business Day on which such Lender receives notice from Administrative Agent of such payment or disbursement, or return or rescission, as applicable, such Lender agrees to pay interest on such amount to Administrative Agent forthwith on demand accruing daily at the Federal Funds Effective Rate, for the first three (3) days following such Lender’s receipt of such notice, and thereafter at the LIBO Rate plus the Applicable Margin in respect of Revolving Loans bearing interest by reference to the LIBO Rate. Any such Lender’s failure to make available to Administrative Agent its Pro Rata Share of any such payment or disbursement, or return or rescission, as applicable, shall not relieve any other Lender of its obligation hereunder to make available such other Lender’s Pro Rata Share of such payment, but no Lender shall be responsible for the failure of any other Lender to make available such other Lender’s Pro Rata Share of any such payment or disbursement, or return or rescission.
(f) Handling of Goods, Documents and Shipments. The Borrowers agree that any action taken by Administrative Agent, if taken in good faith, or any action taken by the Issuing Bank of whatever nature, under or in connection with the Letters of Credit, the Letter of Credit Guaranties, drafts or acceptances relating to Letters of Credit, or the goods subject thereto, shall be binding on each Borrower and shall not result in any liability whatsoever of Administrative Agent to the Borrowers. Administrative Agent shall have the full right and authority, on behalf of the Lenders, to (a) clear and resolve any questions of non-compliance of documents, (b) give any instructions as to acceptance or rejection of any documents or goods, (c) execute any and all steamship or airway guaranties (and applications therefor), indemnities or delivery orders, (d) grant any extensions of the maturity of, time of payment for, or time of presentation of, any drafts, acceptances, or documents, and (e) agree to any amendments, renewals, extensions, modifications, changes or cancellations of any of the terms or conditions of any of the applications, the Letters of Credit, the Letter of Credit Guaranties or drafts or acceptances relating to Letters of Credit. An Issuing Bank shall be entitled to comply with and honor any and all such documents or instruments executed by or received solely from Administrative Agent, without any notice to or any consent from the Borrowers or the Borrower Representative. Notwithstanding any prior course of conduct or dealing with respect to the foregoing (including amendments to and non- compliance with any documents, and/or the Borrowers’ or the Borrower Representative’s instructions with respect thereto), Administrative Agent may exercise its rights under this Section 2.24(f) in its sole but reasonable business judgment. In addition, each Borrower and the Borrower Representative agree not to: (a) at any time, (i) execute any application for steamship or airway guaranties, indemnities or delivery orders, (ii) grant any extensions of the maturity of, time of payment for, or time of presentation of, any drafts, acceptances or documents, or (iii) agree to any amendments, renewals, extensions, modifications, changes or cancellations of any of the terms or conditions of any of the applications, Letters of Credit, drafts or acceptances; and (b) if an Event of Default shall have occurred and remain outstanding, (i) clear and resolve any questions of non-compliance of documents or (ii) give any instructions as to acceptances or rejection of any documents or goods.
56
(g) Compliance with Laws; Payment of Levies and Taxes. The Borrowers agree that (a) all necessary import and export licenses and certificates necessary for the import or handling of the Collateral will be promptly procured, (b) all foreign and domestic governmental Laws and regulations in regard to the shipment and importation of the Collateral or the financing thereof will be promptly and fully complied with, and (c) any certificate in that regard that Administrative Agent may at any time request will be promptly furnished to Administrative Agent. In connection herewith, the Borrowers represent and warrant to Administrative Agent and the Lenders that all shipments made under any Letter of Credit are and will be in compliance with the Laws and regulations of the countries in which the shipments originate and terminate, and are not prohibited by any such Laws and regulations. The Borrowers assume all risk, liability and responsibility for, and agree to pay and discharge, all present and future local, state, federal or foreign Taxes, duties, or levies pertaining to the importation and delivery of the Collateral. Any embargo, restriction, law, custom or regulation of any country, state, city, or other political subdivision, where the Collateral is or may be located, or wherein payments are to be made, or wherein drafts may be drawn, negotiated, accepted, or paid, shall be solely the Borrowers’ risk, liability and responsibility.
(h) Subrogation Rights. Upon any payments made to an Issuing Bank under a Letter of Credit Guaranty, Administrative Agent, for the benefit of the Lenders, shall acquire by subrogation, any rights, remedies, duties or obligations granted to or undertaken by the Borrowers, or any of them, to the Issuing Bank in any application for Letter of Credit, any standing agreement relating to Letters of Credit or otherwise, all of which shall be deemed to have been granted to Administrative Agent, for the benefit of the Lenders, and apply in all respects to Administrative Agent and shall be in addition to any rights, remedies, duties or obligations contained herein.
(i) Deposit Obligations of Borrowers. Upon the request of Administrative Agent or the Issuing Bank (or the Letter of Credit Guarantor, as the case may be), (x) if the Issuing Bank (or the Letter of Credit Guarantor, as the case may be) has honored any full or partial drawing request under any Letter of Credit (as if any Letter of Credit Guarantor has made a payment under a Letter of Credit Guaranty) and such drawing (or payment) has resulted in any Unreimbursed Amounts or (y) in the event any Letters of Credit, Letter of Credit Guaranties or Unreimbursed Amounts are outstanding at the time that Borrowers prepay or are required to repay the Obligations or the Revolving Commitments are terminated, Borrowers shall Cash Collateralize one hundred and five percent (105%) of the aggregate outstanding Letter of Credit Liabilities and such Cash Collateral shall be available to Administrative Agent, for its benefit and the benefit of Issuing Banks that are Lenders hereunder and Letter of Credit Guarantors, to reimburse payments of drafts drawn under such Letters of Credit and pay any fees and expenses related thereto. At any time that there shall exist a Defaulting Lender, promptly upon the request of Administrative Agent or the Issuing Bank (or the Letter of Credit Guarantor, as the case may be), unless the Fronting Exposure of such Defaulting Lender is reallocated to one or more Lenders that are not a Defaulting Lender, the Borrowers shall deliver to Administrative Agent Cash Collateral in an amount sufficient to cover all Fronting Exposure (after giving effect to Section 12.15 and any Cash Collateral provided by the Defaulting Lender). Notwithstanding anything to the contrary contained in this Agreement, Cash Collateral provided under this Section 2.24 in respect of Letters of Credit shall be held and applied in satisfaction of the specific Letter of Credit Liabilities, obligations to fund participations therein (including, as to Cash Collateral provided by a Defaulting Lender, any interest accrued on such obligation) and other obligations for which the Cash Collateral was so provided, prior to any other application of such property as may be provided herein. Cash Collateral (or the appropriate portion thereof) provided to reduce Fronting Exposure or other obligations shall be released promptly following (i) the elimination of the applicable Fronting Exposure or other obligations giving rise thereto (including by the termination of Defaulting Lender status of the applicable Lender) or (ii) Administrative Agent’s good faith determination that there exists excess Cash Collateral; provided, however, that (x) Cash Collateral furnished by or on behalf of a Credit Party shall not be released during the continuance of a Default or Event of Default and (y) the Person providing Cash Collateral and the Issuing Bank (or the Letter of Credit Guarantor, as the case may be) may agree that Cash Collateral shall not be released but instead held to support future anticipated Fronting Exposure or other obligations. Each Borrower hereby grants to Administrative Agent, for the benefit of Administrative Agent and the other Lenders, a security interest in all such cash, deposit accounts and all balances therein pledged, deposited with or delivered to Administrative Agent and all proceeds of the foregoing. Cash Collateral shall be maintained in blocked, noninterest bearing deposit accounts at a bank designated by Administrative Agent.
57
2.25 Use of Proceeds. . The extensions of credit under and proceeds of the Revolving Loans made pursuant to the Revolving Facility shall be used (a) to finance the acquisition of equipment and Capital Expenditures to the extent otherwise permitted hereunder, (b) to fund Permitted Acquisitions and fees and transaction costs associated therewith, and (c) for working capital and other general corporate purposes.
ARTICLE 3 CONDITIONS PRECEDENT TO LOANS
3.1 Conditions of Closing Date. The obligation of Lenders to enter into this Agreement and the other Loan Documents on the Closing Date (the “Closing”) is subject to satisfaction of each of the following conditions precedent:
(a) Administrative Agent shall have received all of the following deliverables, each in form and substance satisfactory to Administrative Agent:
(i) executed counterparts of this Agreement and the other Loan Documents required by Administrative Agent to be executed on the Closing Date;
(ii) [reserved];
(iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Authorized Officers of each Credit Party as Administrative Agent may require;
(iv) such Organization Documents and certifications as Administrative Agent may require to evidence that each Credit Party is duly organized or formed, and that each Credit Party is validly existing, in good standing and qualified to engage in business in each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification;
58
(v) a certificate signed by an Authorized Officer of each Credit Party either (A) certifying that all consents, licenses and approvals required in connection with the execution, delivery and performance by the Credit Parties and the validity against the Credit Parties of the Loan Documents are in full force and effect and have been delivered to Administrative Agent, or (B) stating that no such consents, licenses or approvals are so required;
(vi) a certificate signed by an Authorized Officer of Borrowers certifying: (A) that the conditions specified in Section 3.1 have been satisfied, (B) that there has been no event or circumstance since December 31, 2019 that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect, (C) that no event or circumstance has occurred or exists that constitutes a Default or Event of Default and (D) as to the solvency of Borrowers and the other Credit Parties as of the Closing Date and after giving effect to the Revolving Loans made on the Closing Date;
(vii) correct and complete certified copies of (A) each Lease Agreement, (B) each management agreement (if any), (C) each Material Contract and (D) the licenses and permits of each Borrower that constitute Healthcare Authorizations together with all applicable amendments thereto, all of which shall be acceptable to Administrative Agent in its sole and absolute discretion; and
(viii) evidence that all Required Insurance has been obtained and is in effect, and Administrative Agent shall have confirmed that Administrative Agent, for the benefit of the Lender, has been named as a lender’s loss payee or additional insured with respect to the Required Insurance in a manner satisfactory to Administrative Agent;
(b) Administrative Agent, for the benefit of itself and the Lenders, as applicable, shall have received payment in full of all fees required to be paid under Section 2.14 on or before the Closing Date;
(c) Administrative Agent shall have received Lien searches (including UCC, tax Lien, and judgment searches) demonstrating the absence of Liens on the Collateral other than Permitted Liens or Liens satisfied as of the Closing Date to the satisfaction of Administrative Agent (other than to the extent permitted to be satisfied after the Closing Date pursuant to Section 5.17);
(d) Administrative Agent shall have received: (i) copies of all filing receipts and acknowledgments issued by the appropriate Governmental Authority to evidence recordation or filing necessary to perfect the Lien of Administrative Agent (for the benefit of itself and Lenders) on the Collateral or other satisfactory evidence of such recordation and filing, and (ii) evidence that such Lien constitutes a First Priority Lien in favor of Administrative Agent (for the benefit of itself and the Lenders) other than Liens to be satisfied as of the Closing Date to the satisfaction of Administrative Agent (other than to the extent permitted to be satisfied after the Closing Date pursuant to Section 5.17);
(e) Administrative Agent shall have received a completed Borrowing Base Report and a pro forma Compliance Certificate;
(f) Administrative Agent shall have received such financial statements, reports, certifications, Collateral audits, and other operational information required to be delivered hereunder or otherwise required by Administrative Agent, which shall include financial statements of the type required to be delivered under (i) Section 8.3(a) for the three (3) Fiscal Years preceding the Closing Date and (ii) Section 8.3(c) for the calendar month and year-to-date period most recently ended at least thirty (30) days prior to the Closing Date;
59
(g) [Reserved];
(h) [Reserved];
(i) Administrative Agent shall have received a favorable written opinion (addressed to Administrative Agent and Lenders and dated the Closing Date) of legal counsel for Borrowers and the other Credit Parties, in form and substance acceptable to Administrative Agent in its sole discretion;
(j) Each Borrower and each other Credit Party shall have executed and filed IRS Form 8821 with the appropriate office of the Internal Revenue Service;
(k) At least five (5) days prior to the Closing Date, (a) each Credit Party shall have provided all documentation and other information that Administrative Agent or such Lender requests in order to comply with its ongoing obligations under applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Act and (b) receipt by Administrative Agent of a Beneficial Ownership Certification in relation to any Credit Party that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation;
(l) Administrative Agent shall have received and be satisfied with background checks on certain owners and senior management of the Borrowers;
(m) Administrative Agent shall be satisfied with the results of its review of a quality of earnings report, a field examination, Collateral audits, site visits, and due diligence with respect to the Credit Parties, including healthcare and regulatory due diligence;
(n) Administrative Agent shall have received such other assurances, certificates, documents, consents or opinions as Administrative Agent reasonably may require;
(o) Administrative Agent shall have completed and be satisfied with an updated examination and verification of the books and records of Borrowers, and such examination shall indicate that no material adverse change has occurred in the financial condition, business, prospects, profits, operations or assets of the Borrowers since December 31, 2019;
(p) Administrative Agent shall have received each of the agreements, opinions, reports, approvals, consents, certificates and other documents set forth on the closing document list attached hereto as Exhibit D in each case in form and substance satisfactory to Administrative Agent (with such number of originals or copies as required by Administrative Agent);
(q) [Reserved]; and
(r) Administrative Agent shall have received a certificate of Borrower Representative’s chief financial officer, in form, substance and detail satisfactory to Administrative Agent demonstrating that (i) Adjusted EBITDA for the Consolidated Entities (as adjusted in a manner satisfactory to Administrative Agent) for the Test Period ending June 30, 2020 (giving pro forma effect to the Health Technology Acquisition) is equal to or greater than $14,500,000 and (ii) Borrowers, on a consolidated basis, have Borrowing Base Excess of at least $13,000,000.
60
3.2 Conditions to the Initial Revolving Loan and All Additional Loans and Letters of Credit. The obligation of the Lenders to make the initial Revolving Loan, any other Revolving Loan and the obligation of Issuing Bank to issue any Letter of Credit (or the obligation of Administrative Agent to issue guaranties or risk participations to the Issuing Bank to induce the Issuing Bank to issue Letters of Credit) is subject to satisfaction of each of the following conditions precedent:
(a) The Availability Date has occurred;
(b) The representations and warranties of each Borrower and each other Credit Party contained in Article 4 or any other Loan Document, shall be true and correct on and as of the date of such Revolving Loan or Letter of Credit, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct as of such earlier date, and except that for purposes of this Section 3.2, the representations and warranties contained in Section 4.9 shall be deemed to refer to the most recent Borrowing Base Report and financial statements furnished pursuant to Section 8.3;
(c) No Default or Event of Default shall exist, or would result from such proposed Loan or Letter of Credit or from the application of the proceeds thereof;
(d) Administrative Agent shall have received, in form and substance satisfactory to it, such other assurances, certificates, documents or consents related to the foregoing as Administrative Agent reasonably may require; and
(e) Each Loan Request or request for Letter of Credit submitted by Borrowers shall be deemed to be a representation and warranty that the conditions specified in this Section 3.2 have been satisfied on and as of the date of the applicable Loan or Letter of Credit, as applicable.
3.3 Limited Waiver of Conditions Precedent. If any Lender funds any Loan or grants any other accommodation, or if Issuing Bank issues any Letter of Credit (or Administrative Agent issues guaranties or risk participations to the Issuing Bank to induce the Issuing Bank to issue any Letter of Credit), when any conditions precedent are not satisfied (regardless of whether the lack of satisfaction was known or unknown at the time), it shall not operate as a waiver of (a) the right of such Lender to insist upon satisfaction of all conditions precedent with respect to any subsequent funding, issuance, creation or grant; or (b) any Default or Event of Default due to such failure of conditions or otherwise.
ARTICLE 4 REPRESENTATIONS AND WARRANTIES
Each Borrower and each other Credit Party represents and warrants to Administrative Agent and Lenders that, as of the Closing Date and as of the date of the making of each Loan, the issuance of each Letter of Credit or other extension of credit hereunder:
4.1 Organization. Each Borrower and each other Credit Party has been duly organized and is validly existing and in good standing under the Laws of the state of its formation, with requisite power and authority, and all rights, licenses, permits and authorizations, governmental or otherwise, necessary to own its properties and to transact its business. Each Borrower and each other Credit Party is in good standing under the laws of the jurisdiction of its incorporation or organization. Each Borrower and each other Credit Party is duly qualified to do business in each jurisdiction where it is required to be so qualified in connection with its properties, business and operations, except to the extent the failure to be so qualified could not reasonably be expected to result in a Material Adverse Effect.
4.2 Authorization; Enforceability. Each Borrower and each other Credit Party has taken all necessary action to authorize the execution, delivery and performance of the Loan Documents to which it is a party. The Loan Documents have been duly executed and delivered by each Borrower and each other Credit Party and constitute legal, valid and binding obligations of each Borrower and each other Credit Party enforceable against such Borrower and such other Credit Party in accordance with their respective terms, subject to applicable bankruptcy, insolvency and similar Laws affecting rights of creditors generally, and general principles of equity. The Loan Documents are not subject to, and neither Borrower nor any other Credit Party has asserted, any right of rescission, set-off, counterclaim or defense, including the defense of usury. No exercise of any of the terms or conditions of the Loan Documents, or any right thereunder, will render any Loan Document unenforceable.
61
4.3 No Conflicts. The execution, delivery and performance of the Loan Documents by each Borrower and each other Credit Party and the transactions contemplated thereby will not (a) conflict with or result in a breach of any of the terms or provisions of, or constitute a default under, or result in the creation or imposition of any Lien (other than pursuant to the Loan Documents) upon any of the properties and assets of any Borrower or any other Credit Party pursuant to the terms of, any agreement or instrument to which such Borrower or such other Credit Party is a party or by which its property is subject or (b) result in any violation of any Applicable Laws relating to any Borrower, any Credit Party or the property or assets of the foregoing. Any consent, approval, authorization, order, registration or qualification of or with any Governmental Authority required for the execution, delivery and performance by each Borrower and each other Credit Party of the Loan Documents has been obtained and is in full force and effect.
4.4 Litigation. As of the Closing Date, there are no actions, suits or other proceedings at law or in equity by or before any Governmental Authority pending or threatened against or affecting any Borrower, any other Credit Party, any Manager or any Facility, in which the amount of claimed damages, fines or other liabilities is in excess of $100,000, except as set forth on Schedule 4.4 hereto. There are no facts, circumstances or conditions that would reasonably be expected to form the basis for any material investigation, suit, claim, audit, action (legal or regulatory) or proceeding (legal or regulatory) by a Governmental Authority against or affecting any Credit Party relating to any Healthcare Law. There are no actions, suits or other proceedings at law or in equity by or before any Governmental Authority now pending or threatened against or affecting any Borrower, any other Credit Party, any Manager or any Facility, which, if adversely determined, could reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect.
4.5 Restrictive Agreement. No Borrower or Credit Party is a party to any Restrictive Agreement (other than a Restrictive Agreement entered into in connection with a purchase or lease of fixed or capital assets, including real property, that prohibits Liens on such fixed or capital assets).
4.6 Title. Each Borrower and each other Credit Party owns the property granted by it as Collateral under the Collateral Documents, free and clear of any and all Liens (other than Permitted Liens). Upon the proper filing of UCC financing statements, and the taking of the other actions required by Administrative Agent, the Liens granted pursuant to the Collateral Documents will constitute valid and enforceable First Priority Liens on the Collateral in favor of Administrative Agent (for the benefit of itself and the Lenders).
4.7 No Bankruptcy Filing. No Borrower, any other Credit Party nor Manager is contemplating either the filing of any Insolvency Proceeding or has any knowledge of any Person contemplating the filing of any such petition against any such Borrower, any such Credit Party or Manager.
4.8 Solvency. Each Borrower and each other Credit Party is Solvent. No Credit Party has entered into the transactions contemplated by this Agreement and the other Loan Documents with the intent to hinder, delay, or defraud any creditor.
62
4.9 Full and Accurate Disclosure. No statement of fact made by any Borrower or any other Credit Party in any Loan Documents contains any untrue statement of a material fact or omits to state any material fact necessary to make statements contained therein not misleading. There is no material fact presently known to any Borrower or any other Credit Party that has not been disclosed to Administrative Agent and Lenders which adversely affects, or, as far as any Borrower or any other Credit Party can foresee, might adversely affect, the business, operations or condition (financial or otherwise) of any Borrower or any other Credit Party. All financial data, including the statements of cash flow and income and operating expense, that have been delivered to Administrative Agent and Lenders in respect of each Borrower, and each other Credit Party (i) are true, complete and correct in all material respects, (ii) accurately represent the financial condition of each Borrower, and each other Credit Party as of the date of such reports, and (iii) to the extent prepared by an independent certified public accounting firm, have been prepared in accordance with IFRS consistently applied throughout the periods covered, except as disclosed therein; provided that, with respect to any projected financial information, the Credit Parties represent that such information was prepared in good faith based upon assumptions believed to be reasonable at the time prepared and at the time made available to Administrative Agent and the Lenders. Administrative Agent and the Lenders acknowledge that the pro forma financial statements and other economic forecasts and information of a general industry nature delivered by Credit Parties hereunder are not factual representations and that the actual financial results of the Consolidated Entities may differ from the pro forma financial statements and other economic forecasts submitted from time to time. No Credit Party has any contingent liabilities, liabilities for taxes, unusual forward or long-term commitments, unrealized or anticipated losses from any unfavorable commitments or any liabilities or obligations not expressly permitted by this Agreement. Since the financial statements delivered to Administrative Agent and the Lenders as of December 31, 2019, there has been no material adverse change in the financial condition, operations or business of any Borrower, or any other Credit Party from that set forth in such financial statements. As of the Closing Date, the information included in the Beneficial Ownership Certification is true and correct in all respects.
4.10 Tax Filings. To the extent required, each Borrower and each other Credit Party has filed or has filed on its behalf (or has obtained effective extensions for filing) all federal, state and local tax returns required to be filed and have paid or made adequate provision for the payment of all federal, state and local taxes, charges and assessments payable by each Borrower and each other Credit Party. The tax returns of each Borrower and each other Credit Party (if any) properly reflect the income and taxes of such Borrower and such other Credit Party for the periods covered thereby, subject only to reasonable adjustments required by the Internal Revenue Service or other applicable tax authority upon audit.
4.11 No Plan Assets. As of the Closing Date and at all times thereafter (i) no Credit Party is and will not be an “employee benefit plan,” as defined in Section 3(3) of ERISA, (ii) none of the assets of any Credit Party constitutes or will constitute “plan assets” of one or more such plans within the meaning of 29 C.F.R. Section 2510.3-101, (iii) no Credit Party is nor will be a “governmental plan” within the meaning of Section 3(32) of ERISA, and (iv) transactions by or with Credit Parties are not and will not be subject to state statutes regulating investment of, and fiduciary obligations with respect to, governmental plans. As of the date hereof, neither any Borrower, nor any member of a “controlled group of corporations” (within the meaning of Section 414 of the Code) maintains, sponsors or contributes to a “defined benefit plan” (within the meaning of Section 3(35) of ERISA) or a “multiemployer pension plan” (within the meaning of Section 3(37)(A) of ERISA).
4.12 Compliance. Each Borrower and each other Credit Party is in compliance with the requirements of all Applicable Laws and all Governmental Authorizations applicable to it or to its properties, except in such instances in which (a) such requirement of Applicable Law or order, writ, injunction or decree is being reasonably contested in good faith by appropriate proceedings diligently conducted, or (b) the failure to comply therewith, either individually or in the aggregate, could not reasonably be expected to have a Material Adverse Effect.
63
4.13 Federal Reserve Regulations; Investment Company Act. No part of the proceeds of the Loans will be used for the purpose of purchasing or acquiring any “margin stock” within the meaning of Regulation U of the Board of Governors of the Federal Reserve System or for any other purpose that would be inconsistent with such Regulation U or any other regulation of such Board of Governors, or for any purpose prohibited by Laws or any Loan Document. No Credit Party is (i) an “investment company” or a company “controlled” by an “investment company,” within the meaning of the Investment Company Act of 1940, as amended; (ii) a “holding company” or a “subsidiary company” of a “holding company” or an “affiliate” of either a “holding company” or a “subsidiary company” within the meaning of the Public Utility Holding Company Act of 2005, as amended; or (iii) subject to any other Laws which purport to restrict or regulate its ability to borrow money.
4.14 Ownership of Borrowers and other Credit Parties. A list of the holders of the Equity Interests of each Borrower and each other Credit Party is set forth on Schedule 4.14 hereto, and no other Person has any rights and/or claim to any issued or unissued Equity Interest of any Borrower or any other Credit Party, except as set forth on Schedule 4.14.
4.15 Material Contracts. A list of all Material Contracts as of the Closing Date is set forth on Schedule 4.15. Borrowers have delivered to Administrative Agent true and correct copies of all Material Contracts. Each Material Contract is in full force and effect. There is no default, breach or violation existing thereunder, and no event has occurred (other than payments due but not yet delinquent) that, with the passage of time or the giving of notice, or both, would constitute a default, breach or violation thereunder, by either party thereto. None of the Material Contracts has been amended or modified except pursuant to a written agreement which has been delivered to Administrative Agent.
4.16 Inventory Suppliers. Schedule 4.16 sets forth a complete and accurate list of all Inventory Suppliers.
4.17 Compliance with Environmental Laws. Each Credit Party’s past or present operations, real estate or other properties and assets, including the Facilities, are not as of the Closing Date or any time thereafter subject to any investigation of any Governmental Authority to determine whether any remedial action is needed to address any environmental pollution, Hazardous Material or environmental clean-up. No Credit Party has received any Environmental Notice. No Credit Party has any contingent liability with respect to any Environmental Release, environmental pollution or Hazardous Materials on any real estate now or previously owned, leased or operated by it, including the Facilities.
4.18 Employee Matters. There are no controversies pending or, to the knowledge of any Credit Party, threatened between any Credit Party and any of its employees, agents or independent contractors, other than employee grievances arising in the ordinary course of business which, in the aggregate, could not reasonably be expected to have a Material Adverse Effect, and each Credit Party is in compliance with all Applicable Laws respecting employment and employment terms, conditions and practices, except for such noncompliance which could not reasonably be expected to have a Material Adverse Effect.
4.19 Intellectual Property. Each Credit Party owns or has the legal right to use adequate Intellectual Property to conduct its business as heretofore conducted by it, except to the extent that any such failure could not reasonably be expected to have a Material Adverse Effect. No claim or litigation regarding any of the foregoing is pending or, to the best knowledge of any Credit Party, threatened, by any Licensor or other Person against any Credit Party, which, either individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect.
64
4.20 Healthcare Authorizations and Accreditations. Each Borrower and each other Credit Party (a) has, or has made timely application for in accordance with Applicable Laws (including the Specified Laws), all Healthcare Authorizations and other rights from, and has made all declarations and filings with, all applicable Governmental Authorities, all self-regulatory authorities and all courts and other tribunals necessary to engage in the Healthcare Services conducted by the Credit Parties and the ownership, if any, and operation of the Facilities, and (b) has not received a citation which has not been nor will be remedied within any permitted cure period, nor has knowledge that any Governmental Authority is considering limiting, suspending or revoking any Healthcare Authorization. All Healthcare Authorizations are valid and in full force and effect and Borrower is in material compliance with the terms and conditions of all such Healthcare Authorizations. Each Borrower and each other Credit Party has received and maintained accreditation in good standing and without impairment by all applicable Accrediting Organizations, to the extent required by Law (including any equivalent regulation).
4.21 HIPAA/HITECH Compliance. To the extent that and for so long as any Borrower or each other Credit Party is a “covered entity” or “business associate” as either such term is defined under HIPAA/HITECH, each Borrower and any other Credit Party: (a) has undertaken or will promptly undertake all necessary surveys, audits, inventories, reviews, analyses and/or assessments (including any necessary risk assessments) of all areas of its business and operations required by HIPAA/HITECH and/or that could be adversely affected by the failure of such Borrower or Credit Party to be HIPAA/HITECH Compliant (as defined below); (b) has developed or will promptly develop a detailed plan and time line for becoming HIPAA/HITECH Compliant (a “HIPAA/HITECH Compliance Plan”); and (c) has implemented or will promptly implement those provisions of such HIPAA/HITECH Compliance Plan in all material respects necessary to ensure that each Borrower and each other Credit Party becomes HIPAA/HITECH Compliant. For purposes hereof, “HIPAA/HITECH Compliant” shall mean that each Borrower and each other Credit Party engaged in the Healthcare Services (x) is or will be in compliance with each of the applicable requirements of the Administrative Simplification provisions of HIPAA, and any applicable requirements of HITECH, on and as of each date that any part thereof, or any final rule or regulation thereunder, becomes effective in accordance with its or their terms, as the case may be (each such date, a “HIPAA/HITECH Compliance Date”) and (y) is not and could not reasonably be expected to become, as of any date following any such HIPAA/HITECH Compliance Date, the subject of any civil or criminal penalty, process, claim, action or proceeding, or any administrative or other regulatory review, survey, process or proceeding (other than routine surveys or reviews conducted by any Government Reimbursement Program or other accreditation entity) that could result in any of the foregoing or that could reasonably be expected to have a Material Adverse Effect.
4.22 Reimbursement; Third-Party Payors. Each Borrower and each other Credit Party has provided to Administrative Agent copies of all participation agreements with Third-Party Payors with respect to the business operations of each Borrower and each other Credit Party, and each Borrower and each other Credit Party is entitled to reimbursement under the Government Reimbursement Programs for services rendered to qualified beneficiaries, and each Borrower and each other Credit Party complies with the conditions of participation in all Government Reimbursement Programs and related contracts. Each Borrower and each other Credit Party is in compliance in all material respects with contracts with Account Debtors and is entitled to reimbursement under such contracts. Without limitation, there are no conditions not complied with that could jeopardize its participation in any Government Reimbursement Program or any Material Contracts.
4.23 Other Healthcare Regulatory Matters. Borrowers have developed and implemented a current and effective corporate health care regulatory compliance program (“CCP”). As of the Closing Date, no Borrower nor any Credit Party: (i) is a party to a corporate integrity agreement; (ii) is party to a DEA Memorandum of Understanding; (iii) has any reporting obligations pursuant to a settlement agreement, plan of correction, or other remedial measure entered into with a Governmental Authority; (iv) to Borrower’s or such Credit Party’s best knowledge, is the subject of any investigation conducted by any Governmental Authority involving compliance with Healthcare Laws; (v) is or has been a defendant in any qui tam/false claims act litigation; or (vi) has been served with or received any written search warrant, subpoena, civil investigative demand or contact letter from any Governmental Authority related to their business operations or any Facility owned or operated by them.
65
4.24 Compliance with Healthcare Laws.
(a) Each Borrower and each other Credit Party has timely filed or caused to be timely filed, all cost reports and other reports of every kind whatsoever required by a Government Reimbursement Program, to have been filed or made with respect to the business operations of any such Borrower and any such Credit Party. There are no claims, actions or appeals filed, pending or threatened (and neither any Borrower nor any other Credit Party has filed any claims or reports which would result in any such claims, actions or appeals) before any Governmental Authority pertaining to any such Borrower’s or any such Credit Party’s business operations including any intermediary or contractor, the Provider Reimbursement Review Board or the Administrator of CMS, with respect to any Medicare or Medicaid cost reports or claims filed by any such Borrower or any such other Credit Party, or any disallowance by any Governmental Authority in connection with any audit of such cost reports;
(b) Each Borrower, each other Credit Party and Manager have obtained all necessary accreditations to operate its business as now conducted, and currently is in compliance with all statutory and regulatory requirements applicable to it;
(c) No Borrower, nor any other Credit Party nor Manager, is currently nor has in the past been subject, to its knowledge, to: (1) any state or local governmental investigation, inspection or inquiry related to any license or licensure standards applicable to Borrower or any Credit Party; (2) any federal, state, local governmental or private payor civil or criminal investigations, inquiries or audits involving and/or related to any federal, state or private payor healthcare fraud and abuse provisions or contractual prohibition of healthcare fraud and abuse; or (3) any federal, state or private payor inquiry, investigation, inspection or audit regarding any Borrower or any Credit Party or their activities, including any federal, state or private payor inquiry or investigation of any Person having “ownership, financial or control interest” in any Borrower or any Credit Party (as that term is defined in 42 C.F.R. § 420.201, et seq.) involving and/or related to healthcare fraud and abuse, false claims under 31 U.S.C. §§ 3729-3731 or any similar contractual prohibition, or any qui tam action brought pursuant to 31 U.S.C. § 3729, et seq.;
(d) No Credit Party, nor any director, officer, shareholder, employee, agent or Person with a “direct or indirect ownership interest” (as that phrase is defined in 42 C.F.R. § 420.201) in any Borrower or any other Credit Party, or Manager: (1) has had a civil monetary penalty assessed against him or her pursuant to 42 U.S.C. § 1320a-7a; (2) has been excluded from participation in a Federal Health Care Program (as that term is defined in 42 U.S.C. § 1320a-7b); (3) has been convicted (as that term is defined in 42 C.F.R. § 1001.2) of any of those offenses described in 42 U.S.C. § 1320a-7b or 18 U.S.C. §§ 669, 1035, 1347, 1518, including any of the following categories of offenses: (A) criminal offenses relating to the delivery of an item or service under any Federal Health Care Program (as that term is defined in 42 U.S.C. § 1320a-7b) or healthcare benefit program (as that term is defined in 18 U.S.C. § 24b); (B) criminal offenses under federal or state law relating to patient neglect or abuse in connection with the delivery of a healthcare item or service; (C) criminal offenses under Laws relating to fraud and abuse, theft, embezzlement, false statements to third parties, money laundering, kickbacks, breach of fiduciary responsibility or other financial misconduct in connection with the delivery of a healthcare item or service or with respect to any act or omission in a program operated by or financed in whole or in part by any federal, state or local governmental agency; (D) Laws relating to the interference with or obstruction of any investigations into any criminal offenses described in (1) through (3) above; or (E) criminal offenses under Applicable Laws relating to the unlawful manufacturing, storage, distribution, prescription or dispensing of a controlled substance; or (4) has been involved or named in a U.S. Attorney complaint made or any other action taken pursuant to the False Claims Act under 31 U.S.C. §§ 3729-3731 or qui tam action brought pursuant to 31 U.S.C. § 3729, et seq.;
66
(e) Each Borrower and each other Credit Party, is and shall continue to be in compliance with all Applicable Laws relating to its relationships with physicians;
(f) Borrower and each other Credit Party and Manager, and their employees and contractors (other than contracted agencies), in the exercise of their duties on behalf of any Borrower and any other Credit Party, is and shall continue to be in compliance with all Healthcare Laws and any Laws applicable to the collections on Accounts, any contracts relating thereto or any other Collateral, or otherwise applicable to its business and properties, a violation of which could materially affect its ability to collect on its Accounts;
(g) All Persons providing professional health care services for or on behalf of any Borrower or any other Credit Party (either as an employee or independent contractor) are appropriately licensed to provide such services; and
(h) No Healthcare Authorizations of any Borrower or any other Credit Party have been suspended, revoked, limited or denied renewal at any time.
4.25 No Defaults. No event or circumstance has occurred or exists that constitutes a Default or Event of Default.
4.26 Patriot Act and OFAC Compliance. Neither any Borrower nor any other Credit Party nor any officer, director, shareholder or partner in any Borrower or member of such partner nor any owner of a direct or indirect interest in any Borrower (a) is listed on any Government Lists, (b) is a person who has been determined by competent authority to be subject to the prohibitions contained in Presidential Executive Order No. 13224 (Sept. 23, 2001) or any other similar prohibitions contained in the rules and regulations of OFAC or in any enabling legislation or other Presidential Executive Orders in respect thereof, (c) has been previously indicted for or convicted of any felony involving a crime or crimes of moral turpitude or for any Patriot Act Offense, (d) is currently under investigation by any Governmental Authority for alleged criminal activity or (e) is currently the subject or target of any Sanctions or located, organized or resident in any country or territory targeted by any Sanctions.
4.27 Survival. All of the representations and warranties in this Article 4 and elsewhere in the Loan Documents (i) shall survive until the repayment in full of the Obligations and the termination of this Agreement as described herein and (ii) shall be deemed to have been relied upon by Administrative Agent and Lenders notwithstanding any investigation heretofore or hereafter made by Administrative Agent or any Lender, or on its or their behalf.
4.28 Subordinated Indebtedness. The Credit Parties have delivered to Administrative Agent true and correct copies of all Subordinated Indebtedness Documents. None of the Subordinated Indebtedness Documents have been amended or modified except pursuant to a written agreement which has been delivered to Administrative Agent. No breach or default (beyond any applicable notice or cure period) has occurred or is continuing under any Subordinated Indebtedness Documents.
67
4.29 Federal Employer Identification Number. Each Credit Party’s federal employer identification number is listed on Schedule 4.29 hereto.
4.30 Compliance of Products.
(a) Each Borrower and each other Credit Party:
(i) except as set forth on Schedule 4.30(a), has been operating in compliance in all material respects with all reporting and regulatory requirements imposed upon it as well as the Specified Laws, including reporting to FDA and other agencies, to include state government agencies of product deviations, contamination or of device malfunctions and/or device-related serious injuries or deaths and reporting to FDA of Corrections or Removals, when and as required under the FDCA;
(ii) has not, and none of its officers, directors, employees, shareholders, their agents or affiliates have, made an untrue statement of material fact or fraudulent statement to the FDA or failed to disclose a material fact required to be disclosed to the FDA, committed an act, made a statement, or failed to make a statement that could reasonably be expected to provide a basis for the FDA to invoke its policy respecting “Fraud, Untrue Statements of Material Facts, Bribery, and Illegal Gratuities,” set forth in 56 Fed. Regulation 46191 (September 10, 1991);
(iii) has not received any notice that any Governmental Authority, including the FDA, the Office of the Inspector General of HHS, the United States Department of Justice or any equivalent foreign agency, has commenced or threatened to initiate any action to enjoin a Credit Party, or any of its officers, directors, employees, shareholders, agents or Affiliates, from conducting their respective businesses at any facility owned or used by any of them, or for any material civil penalty, injunction, seizure or criminal action, or which would result in the revocation, transfer, surrender, suspension or other material impairment of any Healthcare Authorization;
(iv) is not a participant in any federal program whereby any federal, state or local government or quasi-governmental body, agency, board or other authority may have the right to recover funds by reason of the advance of federal funds, including those authorized under the Hill-Burton Act (42 U.S.C. 291, et seq.);
(v) has not been threatened to be (A) excluded from United States health care programs pursuant to 42 U.S.C. §1320a7 and related regulations, (B) “suspended” or “debarred” from selling products to the United States government or its agencies pursuant to the Federal Acquisition Regulation, relating to debarment and suspension applicable to federal government agencies generally (48 C.F.R. Subpart 9.4), or other Applicable Laws or regulations, or (C) made a party to any other action by any governmental authority that may prohibit it from selling products to any governmental or other purchaser pursuant to any Law;
(vi) is in compliance with all Environmental Laws;
(vii) maintains or causes to be maintained a standard of care in the storage, use, transportation and disposal of all Products, medical equipment, medical supplies, medical products and medical waste, of any kind and in any form, that is at least comparable to that which exists on the date of this Agreement and that is in conformity in all material respects with all applicable regulations and Laws;
68
(viii) except as set forth on Schedule 4.30(a), has not received from the FDA at any time warning letters, Form FDA-483 inspection reports, “Untitled Letter”, other correspondence or notice setting forth allegedly objectionable observations or alleged violations of Laws and regulations enforced by the FDA, including the FDCA, or any comparable correspondence from any state or local authority responsible for regulating medical device products and establishments, or any comparable correspondence from any foreign counterpart of the FDA, or any comparable correspondence from any foreign counterpart of any state or local authority with regard to any Product or the manufacture, processing, packing, or holding thereof;]
(ix) except as set forth on Schedule 4.30(a), has not engaged in any Recalls, Market Withdrawals, or other forms of product retrieval from the marketplace of any Products at any time;
(x) has entered into a Transport and Disposal Agreement with a reputable and qualified Person for the transport and disposal of hazardous wastes pursuant to which such Person has agreed to provide such transport and disposal services at all facilities at which such biomedical wastes and hazardous wastes are generated in conformity in all material respects with all applicable regulations and Laws and such Transport and Disposal Agreement remains in full force and effect; and
(xi) except as set forth on Schedule 4.30(a), maintains or causes to be maintained a policy that prevents the exposure of employees or contractors to bloodborne pathogens by prohibiting staff from handling returned or used Product if such Product is not received in a decontaminated manner.
(b) With respect to Products:
(i) No Borrower or other Credit Party has acquired, received, or otherwise transferred any human tissue or organs for valuable consideration for use in human transplantation, in violation of any Law;
(ii) Schedule 4.30(b), hereto lists all Healthcare Authorizations issued by a Governmental Authority relating to a Product and/or the applicable Borrower’s or other Credit Party’s manufacture, sale, development, testing or marketing thereof maintained by Borrowers and other Credit Parties as of the Closing Date, together with the applicable Product category corresponding to the Healthcare Authorizations. Each Borrower and each other Credit Party has delivered to Administrative Agent on or prior to the Closing Date copies of all such Healthcare Authorizations. If, after the Closing Date, any Borrower or any other Credit Party acquires or renews any Healthcare Authorization issued by a Governmental Authority relating to a Product and/or the applicable Borrower’s or Credit Party’s manufacture, sale, development, testing or marketing thereof issued, Borrowers shall promptly deliver a copy of such new or renewed Healthcare Authorization along with a copy of an update to Schedule 4.30(b);
(iii) except as set forth on Schedule 4.30(b), each Product has been and/or shall be manufactured, imported, possessed, owned, warehoused, marketed, promoted, sold, labeled, furnished, distributed and marketed in accordance with all applicable Healthcare Authorizations and Laws, including but not limited to the FDCA;
(iv) without limiting the generality of Section 4.20, with respect to any Product being tested or manufactured by any Borrower or any other Credit Party, such Borrower or Credit Party has received, and such Product shall be the subject of, all Healthcare Authorizations needed in connection with the testing or manufacture of such Product as such testing is currently being conducted by or on behalf of such Borrower or Credit Party, and such Borrower or Credit Party has not received any notice from any applicable Governmental Authority, including the FDA, that such Governmental Authority is conducting an investigation or review of (A) such Borrower’s or Credit Party’s manufacturing facilities and processes for such Product which have disclosed any material deficiencies or violations of Applicable Laws (including Healthcare Laws) and/or the Healthcare Authorizations related to the manufacture of such Product, or (B) any such Healthcare Authorizations or that any such Healthcare Authorization has been revoked or withdrawn, nor has any such Governmental Authority issued any order or recommendation stating that the development, testing and/or manufacturing of such Product by such Borrower or Credit Party should cease;
69
(v) without limiting the generality of Section 4.20, with respect to any Product marketed, leased, rented, or sold by any Borrower or any other Credit Party, such Borrower or Credit Party shall have received, and such Product shall be the subject of, all Healthcare Authorizations needed in connection with the marketing and sales of such Product as currently being marketed, leased, rented, or sold by such Borrower or Credit Party, and such Borrower or Credit Party has not received any notice from any applicable Governmental Authority, including the FDA, that such Governmental Authority is conducting an investigation or review of any such Healthcare Authorization or approval or that any such Healthcare Authorization has been revoked or withdrawn, nor has any such Governmental Authority issued any order or recommendation stating that such marketing or sales of such Product cease or that such Product be withdrawn from the marketplace; and
(vi) No Borrower or any other Credit Party has experienced any significant failures in their manufacturing of any Product such that the amount of such Product successfully manufactured by it in accordance with all specifications thereof and the Healthcare Authorizations related thereto in any month shall decrease significantly with respect to the quantities of such Product produced in the prior month.
(c) Neither the execution nor performance by any Borrower or any other Credit Party of any Loan Documents, nor the exercise of any remedies by any party thereunder, will adversely affect any of the Healthcare Authorizations.
4.31 Holding Company Status. Parent is not engaged in any trade or business in violation of Section 6.19.
4.32 Representations Regarding Accounts. Borrowers represent and warrant to Administrative Agent and the Lenders that, with respect to each Account that:
(a) Each Account that has been identified by Borrowers on a Borrowing Base Report as an Eligible Account satisfies each of the conditions of an Eligible Account, and if such Account is an obligation pursuant to an Acceptable Rental Agreement, the Inventory Supplier with respect to the underlying Vendor Lease, if any, has entered into an Inventory Subordination Agreement as required by clause (t) in the definition of “Eligible Accounts” (or Administrative Agent has consented in writing to not require an Inventory Subordination Agreement with respect to such Inventory Supplier as set forth in clause (t) in the definition of “Eligible Accounts”);
(b) All information relating to such Account that has been delivered to Administrative Agent is true and correct in all material respects. With respect to each such Account that has been billed, the corresponding Borrower has delivered to the Payor all requested supporting claim documents and all information set forth in the bill and supporting claim documents is true, complete and correct in all material respects;
70
(c) There is no Lien or adverse claim (other than Permitted Liens) in favor of any third party, nor any filing against any Borrower, as debtor, covering or purporting to cover any interest in any Account;
(d) Such Account is (i) owed by the Payor identified by Borrowers as being obligated to pay such Account in an amount not less than such Account’s Estimated Net Value and is recognized by such Payor as an obligation of such Payor, (ii) the legally enforceable obligation of such Payor and (iii) an account receivable or related general intangible within the meaning of the UCC, or is a right to payment under a policy of insurance or proceeds thereof, and is not evidenced by any instrument or chattel paper (other than Acceptable Rental Agreements). There is no payor other than the Payor identified by Borrowers as the payor primarily liable on such Account;
(e) The services constituting the basis of such Account (i) were determined by the patient’s physician to be medically necessary for the patient, (ii) at the time such services were rendered, all such services were fully covered by the insurance policy or contract obligating the applicable Payor to make payment with respect to such Account (and the corresponding Borrower has verified such determination) and (iii) the patient received such services in the ordinary course of such Borrower’s business;
(f) If such Account has not been billed, the services giving rise to such Account have been properly recorded in the corresponding Borrower’s accounting system;
(g) Such Account will only be included by Borrowers in the Borrowing Base Report if such Account was billed no later than forty-five (45) days after the day on which the services or goods giving rise to such Account were rendered or provided, as applicable, provided that all prerequisites to bill the Account have been met, including, but not limited to, the receipt of signed physician orders for all services ordered verbally by the patient’s physician and each bill contains an express direction requiring the Payor to remit payments to either the Government Receivables Account or Non-Government Receivables Account, as applicable; and
(h) Neither such Account nor the related contract contravenes any Laws, rules or regulations applicable thereto (including Laws, rules and regulations relating to usury, consumer protection, truth-in-lending, fair credit billing, fair credit reporting, equal credit opportunity, fair debt collection practices and privacy), and no party to such related contract is in violation of any such law, rule or regulation in connection with such contract.
4.33 CARES Act Obligations. Each Borrower and each other Credit Party represents and warrants that Schedule 2 sets forth a true and correct summary of all CARES Act Obligations, including the total amounts outstanding, any amounts any Borrower or any other Credit Party intends to return to the applicable Governmental Authority, full amounts received, and the dates such amounts were received by the Borrowers or other Credit Parties. Each Borrower and each other Credit Party further represents and warrants that all requests complied with the requirements of the applicable CARES Act program.
71
ARTICLE 5 AFFIRMATIVE COVENANTS
So long as any Lender shall have any commitment to make any Loan hereunder, or any Loan or other Obligation hereunder shall remain unpaid or unsatisfied, each Borrower and each other Credit Party that is a party hereto covenants and agrees as follows:
5.1 Payment of Obligations. Each Borrower and each other Credit Party shall pay and discharge as the same shall become due and payable, all its obligations and liabilities, including (a) all tax liabilities, assessments and governmental charges or levies upon it or its properties or assets, unless the same are being reasonably contested in good faith by appropriate proceedings diligently conducted and adequate reserves in accordance with IFRS are being maintained by such Borrower or such other Credit Party; (b) all lawful claims which, if unpaid, would by Law become a Lien upon its property (other than Permitted Liens); and (c) all Indebtedness, as and when due and payable (subject to any applicable grace or cure periods), but subject to any subordination provisions contained in any instrument or agreement evidencing such Indebtedness.
5.2 Preservation of Existence, Etc. Each Borrower and each other Credit Party shall (a) preserve, renew and maintain in full force and effect its legal existence and good standing under the Laws of the jurisdiction of its organization; and (b) take all action to maintain all rights, privileges, permits, licenses and franchises necessary or desirable in the normal conduct of its business, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect.
5.3 Maintenance of Properties. Each Borrower and each other Credit Party shall (a) maintain, preserve and protect all of its material properties and equipment necessary in the operation of its business in good working order and condition, ordinary wear and tear excepted; (b) make all necessary repairs thereto and renewals and replacements thereof except where the failure to do so could not reasonably be expected to have a Material Adverse Effect; and (c) use the standard of care typical in the industry in the operation and maintenance of its Facilities.
5.4 Maintenance of Insurance. Each Borrower and each other Credit Party shall maintain at all times insurance on all of their respective properties and assets covering the repair and full replacement costs of all such property on an all risk basis (including the perils of wind/hail, storms, including named storms, flood and earthquake, as applicable) and coverage for business interruption and professional liability, comprehensive general liability and excess liability/umbrella insurance with financially sound and reputable insurance companies, in such reasonable amounts including deductibles and covering such insurable risks as are at all times reasonably satisfactory to Administrative Agent and with respect to coverage limits, the limits and coverages as in effect on the Closing Date (the “Required Insurance”). All policies relating to Required Insurance are to be in form and detail and contain such other provisions as Administrative Agent reasonably may require to fully protect Administrative Agent’s and Lenders’ interest in the Collateral and to any payments to be made under such policies. All professional and general liability insurance policies, including umbrella/excess policies, relating to Required Insurance shall name Administrative Agent, on behalf of itself and the Lenders, as an “additional insured,” including a separation of insureds clause and all property insurance policies relating to Required Insurance shall name Administrative Agent, on behalf of itself and the Lenders, as lender’s loss payee. Each loss payable endorsement in favor of Administrative Agent, on behalf of itself and the Lenders, shall provide (x) for not less than thirty (30) days prior written notice to Administrative Agent of the exercise of any right of cancellation or material alteration and (y) that Administrative Agent’s, on behalf of itself and the Lenders, right to payment under any property insurance policy will not be invalidated by any act or neglect of, or any breach of warranty or condition by, Borrowers (or any of them) or any other party. Administrative Agent shall not be responsible for premiums, warranties or representations to insurance companies. If an Event of Default shall have occurred and remain outstanding, Administrative Agent shall have the sole right, in the name of Administrative Agent, on behalf of itself and the Lenders, or Borrowers (or any of them), to file claims under any insurance policies, to receive, receipt and give acquittances for any payments that may be payable thereunder, and to execute any and all endorsements, receipts, releases, assignments, reassignments or other documents that may be necessary to effect the collection, compromise or settlement of any claims under any such insurance policies. In the event any Borrower or any other Credit Party fails to provide Administrative Agent with evidence of the Required Insurance in the manner set forth in this Section 5.4, Administrative Agent (for the benefit of itself and the Lenders) may, following three (3) days’ written notice to Borrower Representative, purchase insurance at Borrowers’ expense to protect Administrative Agent’s and the Lenders’ interests in the Collateral. The insurance purchased by Administrative Agent (for the benefit of itself and the Lenders) may, but need not, protect Borrowers’ interests in the Collateral, and therefor such insurance may not pay any claim that any Borrower may make or any claim that is made against any Borrower in connection with the Collateral. Borrowers may later request that Administrative Agent cancel any insurance purchased by Administrative Agent, but only after providing Administrative Agent with satisfactory evidence that Borrowers have the Required Insurance. If Administrative Agent purchases insurance covering all or any portion of the Collateral, Borrowers shall be responsible for the costs of such insurance, including interest (at the applicable rate set forth hereunder for Revolving Loans) and other charges accruing on the purchase price thereof, until the effective date of the cancellation or the expiration of the insurance, and Administrative Agent may add all of such costs, interest and other charges to the Obligations. The costs of the premiums of any insurance purchased by Administrative Agent may exceed the costs of insurance that Borrowers may be able to purchase on their own.
72
5.5 Compliance With Laws. Each Borrower and each other Credit Party shall and shall cause Manager to comply with the requirements of all Applicable Laws (including any Environmental Laws and Healthcare Laws) and obtain, maintain and comply with all Governmental Authorizations and Healthcare Authorizations, in each instance, applicable to it or to its business or property, in each case except to the extent any failure to comply with the foregoing could not reasonably be expected to have a Material Adverse Effect. Without limiting the generality of the foregoing, if any Environmental Release occurs at any Facility or any other properties of any Borrower or any other Credit Party, the applicable Borrower or other Credit Party shall act promptly and diligently to investigate and report to Administrative Agent and all appropriate Governmental Authorities the extent of, and to make appropriate remedial action to eliminate, such Environmental Release, whether or not directed to do so by any Governmental Authority.
5.6 Books and Records. Each Borrower and each other Credit Party shall (a) maintain proper books of record and account, in which full, true and correct entries in conformity with IFRS, consistently applied shall be made of all financial transactions and matters involving the assets and business of such Borrower or such other Credit Party; and (b) maintain such books of record and account in material conformity with all applicable requirements of any Governmental Authority having regulatory jurisdiction over such Borrower or such other Credit Party. Each Credit Party shall maintain or cause to be maintained at all times books and records pertaining to the Collateral in such detail, form and scope as Administrative Agent shall reasonably require.
5.7 Inspection Rights; Field Audits; Appraisals. Each Borrower and each other Credit Party shall permit agents, representatives, consultants and other independent contractors of Administrative Agent to visit, audit and inspect any of its Facilities and other properties, to examine its corporate, financial and operating records, and make copies thereof or abstracts therefrom, to discuss its affairs, finances and accounts with its directors, officers, and independent public accountants, and to conduct a field examination and audit of the Collateral, including chattel paper of any Borrower wherever located (including any approved records storage facility subject to a Custodial Administration Agreement), Inventory and Accounts, all at the expense of Borrowers and at such reasonable times during normal business hours and as often as may be reasonably desired, and so long as no Default or Event of Default exists, upon reasonable advance notice to Borrower Representative.
73
5.8 Landlord and Warehouse Agreements; Cloud Assignment Agreements.
(a) Each Borrower and each other Credit Party shall, upon request, provide Administrative Agent with copies of all existing agreements, and promptly after execution thereof provide Administrative Agent with copies of all future agreements, between any Borrower, any other Credit Party and any landlord, warehouseman, processor, shipper, bailee or other Person that owns any premises at which any Collateral may be kept or that otherwise may possess or handle any Collateral and obtain a Collateral Access Agreement with any such landlord, warehouseman, processor, shipper, bailee or other Person.
(b) Upon Administrative Agent’s request, each Borrower and each other Credit Party shall deliver to Administrative Agent fully-executed agreements, in form and substance satisfactory to Administrative Agent, between each Borrower and each other Credit Party, Administrative Agent and the Credit Parties’ vendors that provide off-site data storage, network hosting or management, shared application services or other “cloud-based” services to Borrowers or other Credit Parties or Managers, which shall provide Administrative Agent with such access to Borrowers’ and other Credit Parties’ billing and Accounts records as Administrative Agent deems necessary or helpful in connection with Administrative Agent’s and Lenders’ audit and inspection rights under the Loan Documents and the collection or realization of or on the Collateral.
5.9 Licenses. Each Borrower and each other Credit Party shall (a) keep each License affecting any Collateral or any other properties and assets of any Credit Party in full force and effect, and pay all royalties, in each case, except where the failure to do so could not reasonably be likely to have a Material Adverse Effect (each such License shall be referred to herein as a “Material License”); (b) promptly notify Administrative Agent of any proposed modification to any Material License, or entry into any new Material License, in each case at least ten (10) days prior to its closing date; and (c) notify Administrative Agent of any default or breach (beyond any applicable cure period) asserted by any Person to have occurred under any Material License.
5.10 Healthcare Operations.
(a) Each Borrower and each other Credit Party shall maintain in full force and effect, and free from restrictions, probations, conditions or known conflicts which would materially impair the use or operation of any Facility for its current use, all Healthcare Authorizations necessary under Healthcare Laws (i) to carry on the business of each Borrower and each other Credit Party as it is conducted on the Closing Date, and (ii) if any Borrower or any other Credit Party receives or has applied for reimbursements under any Government Reimbursement Program as part of its business, to continue to receive reimbursement thereunder in substantial compliance with all requirements for participation in, and for the licensure required to provide the services that are reimbursable under, any Government Reimbursement Program, including the Medicare and Medicaid Patient Protection Act of 1987, as the same may be amended, and such other Third-Party Payor programs as to which any Borrower or any other Credit Party receives or has applied for reimbursement as part of its business.
(b) Each Borrower and each other Credit Party shall cause all Healthcare Authorizations and any other agreements necessary for the provision of the Healthcare Services or as may be necessary for participation in Third-Party Payor Programs to remain in effect.
(c) Each Borrower and each other Credit Party shall provide to Lender upon request, an accurate, complete and current list of all participation agreements with Third-Party Payors with respect to the business of each Borrower and each other Credit Party.
(d) Each Borrower and each other Credit Party shall maintain a CCP which includes at least the following components and allows Lender and/or any outside consultants from time to time to review such CCP: (i) standards of conduct and procedures that describe compliance policies regarding Laws with an emphasis on prevention of fraud and abuse; (ii) specific officer within high-level personnel identified as having overall responsibility for compliance with such standards and procedures; (iii) training and education programs which effectively communicate the compliance standards and procedures to employees and agents, including fraud and abuse Laws and illegal billing practices; (iv) auditing and monitoring systems and reasonable steps for achieving compliance with such standards and procedures including publicizing a report system to allow employees and other agents to anonymously report criminal or suspect conduct and potential compliance problems; (v) disciplinary guidelines and consistent enforcement of compliance policies including discipline of individuals responsible for the failure to detect violations of the CCP; and (vi) mechanisms to immediately respond to detected violations of the CCP.
74
(e) Without limiting the generality of Section 5.10(a), each Borrower and each other Credit Party shall comply fully and completely in all respects with all Healthcare Authorizations at all times issued by any Governmental Authority, including the FDA, with respect to such development, testing, manufacturing, marketing, sales, or leasing of such Product by such Person as such activities are at any such time being conducted by such Person, including the timely filing (after giving effect to any extension duly obtained) of all notifications, reports, submissions, Healthcare Authorization renewals, cost reports and other reports of every kind whatsoever required by Applicable Laws (which reports shall be materially accurate and complete in all respects and not misleading in any respect and shall not remain open or unsettled) and shall operate in a manner such that the Healthcare Authorizations remain in full force and effect.
(f) Each Borrower and each other Credit Party shall maintain in full force and effect the Transport and Disposal Agreement or such other agreement in form and substance for the transport and disposal of hazardous wastes with respect to all facilities at which such waste is generated.
5.11 Further Assurances. Each Borrower and each other Credit Party shall (a) execute and deliver to Administrative Agent, such documents, instruments, certificates, assignments and other writings, and do such other acts necessary or desirable, to evidence, preserve and/or protect the Collateral and/or for the better and more effective carrying out of the intents and purposes of the Loan Documents, as Administrative Agent may reasonably require from time to time including the filing of a financing statement or financing statement change to establish or maintain the validity, perfection and priority of the security interest granted herein in the event of the name change of a Credit Party; (b) upon Administrative Agent’s request therefor given from time to time, pay for reports of UCC, federal tax Lien, state tax Lien, judgment and pending litigation searches with respect to each Borrower and each other Credit Party, each such search to be conducted by search firms designated by Administrative Agent in each of the locations designated by Administrative Agent; and (c) comply with the requirements of all Applicable Laws in order to grant to Administrative Agent, for the benefit of itself and Lenders, valid and perfected First Priority security interests in the Collateral, with perfection, in the case of any investment property, deposit account or letter of credit, being effected by giving Administrative Agent control of such investment property or deposit account or letter of credit.
5.12 Additional Guarantors/Borrowers; Additional Pledgor. Each Borrower and each other Credit Party will at the time that any Person becomes a Subsidiary of such Borrower or such other Credit Party, or within twenty (20) days thereafter (or such later date as agreed to in writing by Administrative Agent in its sole discretion), cause such Subsidiary to: (a) become a Borrower or a Guarantor, as designated by Administrative Agent in its sole discretion, by executing and delivering to Administrative Agent a credit party joinder or such other document as Administrative Agent shall deem appropriate for such purpose or a Guaranty, (b) execute and deliver to Administrative Agent documents necessary to grant and perfect a First Priority Lien to Administrative Agent, for the benefit of itself and Lenders, in all real and personal property held by such Subsidiary and in all issued and outstanding Equity Interests of such Subsidiary owned by such Borrower or such other Credit Party or Pledgor, and (c) deliver to Administrative Agent all other documentation, including one or more opinions of counsel reasonably satisfactory to Administrative Agent, which in the reasonable opinion of Administrative Agent is appropriate with respect to the execution and delivery of the applicable documentation referred to in clauses (a) and (b) above, all in form, content and scope reasonably satisfactory to Administrative Agent; provided, with respect to any deposit accounts of any such Person that becomes a Credit Party pursuant to the terms of this Section 5.12, the Administrative Agent and the Borrower Representative will mutually determine a timeline for purposes of transitioning such deposit accounts to CIT Bank, N.A., such transition period to be no longer than the periods provided in Section 5.14 (based on the time such Person joins as a Credit Party).
75
5.13 Environmental Matters. In addition to and without limiting the generality of Section 4.17, each Credit Party shall (a) comply with all applicable Environmental Laws to the extent that noncompliance could reasonably be expected to have a Material Adverse Effect; (b) obtain and comply with any and all Governmental Authorizations required by applicable Environmental Laws to the extent that not obtaining and not complying with such licenses, approvals, notifications, and registrations could reasonably be expected to have a Material Adverse Effect; and (c) conduct and complete all investigations, studies, sampling and testing, and all remedial, removal and other actions required under applicable Environmental Laws following any Environmental Release, and promptly comply with all lawful orders and directives of any Governmental Authority regarding such Environmental Laws, except orders and directives that are being challenged in good faith. Without limiting the generality of the foregoing, if any material Environmental Release occurs at or on any properties of any Credit Party, it shall act promptly and diligently to investigate and report the extent of such Environmental Release to Administrative Agent and, if required by Applicable Law, all appropriate Governmental Authorities, and, to the extent required by Applicable Law, to take appropriate remedial action to address, such Environmental Release, whether or not directed to do so by any Governmental Authority.
5.14 Account Control Agreements; Primary Treasury Management.
(a) To the extent required pursuant to Section 2.6, each Credit Party shall maintain at all times (i) a valid and enforceable deposit account control agreement or account instruction agreement, as applicable, (ii) any and all zero balance accounts and standing wire transfer orders. Each Credit Party shall maintain at all times a valid and enforceable securities account control agreement with respect to any securities account owned by any Credit Party, in form and substance satisfactory to Administrative Agent.
(b) The Credit Parties shall meet the following requirements (collectively, the “Treasury Management Migration Milestones”) at the dates set forth below (or such later dates as agreed to in writing by Administrative Agent as determined in its sole discretion and in each case subject to the proviso set forth in Section 5.12 with respect to the deposit accounts of any Person that becomes a Credit Party following the Closing Date)):
(i) By no later than ninety (90) days following the Closing Date, each Borrower and the other Credit Parties shall (x) establish deposit accounts at CIT Bank, N.A. (the “CIT Accounts”) as requested by Administrative Agent in its reasonable discretion (but which shall include, but not be limited to, segregated deposit accounts for (A) receipt of Accounts from Government Account Debtors, (B) receipt of Accounts from Non-Government Payors, and (C) all such other purposes necessary or advisable in establishing the Credit Parties’ treasury management with CIT Bank, N.A., and (y) notified all Payors in writing that all Collections are to be paid in accordance with this clause (b);
(ii) On each Business Day on and after the two hundred and seventieth (270th) day following the Closing Date, no less than seventy-five percent (75.0%) of all Collections of Accounts received by Credit Parties on such Business Day shall be transferred directly from the applicable Account Debtor to, or promptly deposited into, the appropriate CIT Account; and
76
(iii) By no later than the Treasury Management Migration Completion Date, (x) no less than ninety-five percent (95.0%) of all Collections of Accounts received by Credit Parties on each Business Day shall be transferred directly from the applicable Account Debtor to the appropriate CIT Account and (y) the applicable Credit Party shall close the Closing Date Deposit Accounts and transfer all funds deposited therein to such Credit Party’s appropriate CIT Account.
5.15 Patriot Act Compliance.
(a) Each Credit Party shall comply with the Patriot Act and all applicable requirements of Governmental Authorities having jurisdiction over such Credit Party or the Collateral, including those relating to money laundering and terrorism. Administrative Agent shall have the right to audit each Credit Party’s compliance with the Patriot Act and all applicable requirements of any Governmental Authority having jurisdiction over any such Credit Party and the Collateral, including those relating to money laundering and terrorism. In the event that any Credit Party fails to comply with the Patriot Act or any such requirements of any such Governmental Authority, then Administrative Agent may, at its option, cause such Credit Party to comply therewith and any and all reasonable costs and expenses incurred by Administrative Agent in connection therewith shall be added to the Obligations, shall be secured by the Collateral and the other Loan Documents and shall be immediately due and payable. For purposes hereof, the term “Patriot Act” means the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT ACT) Act of 2001, as the same may be amended from time to time, and corresponding provisions of future Laws.
(b) No Credit Party nor any officer, director, shareholder or partner in any Credit Party or member of such partner nor any owner of a direct or indirect interest in any Credit Party (a) is listed on any Government Lists, (b) is a person who has been determined by competent authority to be subject to the prohibitions contained in Presidential Executive Order No. 13224 (Sept. 23, 2001) or any other similar prohibitions contained in the rules and regulations of OFAC or in any enabling legislation or other Presidential Executive Orders in respect thereof, (c) has been previously indicted for or convicted of any felony involving a crime or crimes of moral turpitude or for any Patriot Act Offense, or (d) is currently under investigation by any Governmental Authority for alleged criminal activity.
5.16 Beneficial Ownership Certification. Each Credit Party shall at all times either (i) ensure that such Credit Party has delivered to Administrative Agent a Beneficial Ownership Certification, if applicable, and that the information contained therein is true and correct in all respects, or (ii) deliver to Administrative Agent an updated Beneficial Ownership Certification within one (1) Business Day following the date on which the information contained in any previously delivered Beneficial Ownership Certification ceases to be true and correct in all respects.
5.17 Post-Closing Items. Each Borrower and each other Credit Party shall satisfy the requirements, and provide to Administrative Agent each of the agreements, instruments and documents, in each case described on Schedule 5.17 on or before the date specified for such requirement or delivery on Schedule 5.17 (or such later date as agreed to in writing by Administrative Agent as determined in its sole discretion), and any failure of the Borrowers and Credit Parties to satisfy any such requirement or delivery shall constitute an immediate Event of Default.
5.18 Collateral Records. Each Borrower and each other Credit Party shall execute and deliver promptly to Administrative Agent, from time to time, solely for Administrative Agent’s convenience in maintaining a record of the Collateral, such written statements and schedules as Administrative Agent may require designating, identifying or describing the Collateral. The failure by any Borrower, however, to promptly give Administrative Agent such statements or schedules shall not affect, diminish, modify or otherwise limit the Liens on the Collateral granted pursuant to the Collateral Documents.
77
5.19 Chattel Paper. Borrowers shall promptly, but in any event within thirty (30) days of origination of any Rental Agreement, deliver to Administrative Agent’s possession (either directly or by transfer to Administrative Agent’s account at an approved records storage facility subject to a Custodial Administration Agreement) such Rental Agreement.
5.20 Inventory. With respect to the Inventory: (a) each Credit Party shall at all times maintain correct and accurate inventory records in a manner consistent with its current practices as of the Closing Date, (b) Credit Parties shall not remove any Inventory from the locations set forth or permitted herein, without the prior written consent of Administrative Agent, except for sales, returns or transfers of Inventory in the ordinary course of its business that are reported to Administrative Agent in accordance with the terms hereof and except to move Inventory directly from one location set forth or permitted herein to another such location and except for Inventory shipped from the manufacturer thereof to such Credit Party which is in transit to the locations set forth or permitted herein; (c) Credit Parties shall produce, use, store and maintain the Inventory with all reasonable care and caution and in accordance with applicable standards of any insurance and in conformity with Applicable Laws in all material respects (including the requirements of the Federal Fair Labor Standards Act of 1938, as amended and all rules, regulations and orders related thereto); (d) as between Administrative Agent and Lenders, on the one hand, and Credit Parties, on the other hand, each Credit Party assumes all responsibility and liability arising from or relating to the production, use, sale or other disposition of the Inventory (but nothing contained herein shall be construed as the basis for any liability of any Credit Party as to any third party); (e) Credit Parties shall not sell Inventory to any customer on approval, or any other basis which entitles the customer to return or may obligate any Credit Party to repurchase such Inventory; except for the right of return given to any customers of Borrowers in the ordinary course of business and in accordance with the then current return policy and contractual obligations of Borrowers as of the Closing Date; and (f) Credit Parties shall keep the Inventory in good and marketable condition.
5.21 Right of First Refusal. If at any time, Borrowers, any other Credit Party or any of their Affiliates receives from a third party an offer, term sheet or commitment (each, an “Offer”) which provides for a credit facility for Borrowers to replace the Revolving Facility, Borrower Representative or such other Credit Party shall immediately notify Lender of the Offer in writing (including all material terms of the Offer), Administrative Agent shall have thirty (30) days after receipt of such notice (the “Option Period”) to agree to provide similar financing in the place of such Person upon substantially the same terms and conditions (or terms more favorable to Borrowers) as set forth in the Offer; provided, however, that such Option Period shall be tolled during any period that Administrative Agent has requested from Borrowers, but not yet received, financial and other information provided by Borrowers to the Person making the Offer and reasonably needed by Administrative Agent to determine whether to accept the Offer, provided that such request is made within five (5) Business Days of Administrative Agent’s receipt of the Offer. Administrative Agent shall notify Borrower Representative in writing of Administrative Agent’s acceptance of the Offer pursuant hereto (the “Offer Acceptance Notice”), in which case Borrowers may obtain such financing from Administrative Agent (or an Affiliate of Administrative Agent designated by Administrative Agent) and shall not accept the Offer from such other Person. If no Offer Acceptance Notice has been received from Lender within the Option Period, Borrowers or such other Credit Party may consummate the Offer with the other Person on the terms and conditions set forth in the Offer (the “Offered Financing Transaction”); provided, however, that none of the foregoing or any failure by Administrative Agent to issue an Offer Acceptance Notice shall be construed as a waiver of any of the terms, covenants or conditions of any of the Loan Documents or any Swap Agreement. If the Offered Financing Transaction is not closed on the terms set forth in the Offer or with the Person providing the Offer or during the one hundred twenty (120) day period following the expiration of the Option Period, Borrower or such other Credit Party shall not be permitted to consummate the Transaction without again complying with this Section 5.21. The provisions of this Section 5.21 shall survive the payment in full of the Obligations and termination of this Agreement for a period of 90 days.
78
5.22 COVID-19 Relief Programs.
(a) If any Borrower or any other Credit Party receives a loan constituting CARES Act PPP Loan, it shall (i) cause the proceeds of each such loan to be directly deposited into a deposit account subject to a deposit account control agreement acceptable to Administrative Agent; (ii) use the proceeds of such CARES Act PPP Loan for uses that are eligible for forgiveness under Section 1106 of the CARES Act and in the manner required under the CARES Act to obtain forgiveness of the largest possible amount of the CARES Act PPP Loan, (iii) take all commercially reasonable actions necessary to maximize the amount of the CARES Act PPP Loan to be forgiven in accordance with the terms of the CARES Act, (iv) maintain such books, records, and documentation as described by the SBA in regulations and administrative guidance related to the Paycheck Protection Program provisions of the CARES Act to evidence that such Borrower has used the proceeds of such CARES Act PPP Loan solely for purposes permitted under the CARES Act and otherwise qualified for loan forgiveness as described in the foregoing clause (iii); (v) apply for forgiveness of its CARES Act PPP Loan with its SBA qualified lender promptly after the end of the eight week period immediately following such Borrower’s receipt of such loan, or such later period should such period be extended, and (vi) provide notice to Administrative Agent thereof within ten (10) days of when such CARES Act PPP Loan is forgiven, or if all or a portion of such CARES Act PPP Loan is not forgiven. If any Borrower or any other Credit Party have a received a loan under the Payment Protection Program provisions of the CARES Act it shall not (x) participate in the payroll tax credit program described in Section 2301 of the CARES Act or (y) on or after the date its CARES Act PPP Debt is forgiven, participate in the payroll tax deferral program described in Section 2302 of the CARES Act.
(b) If any Borrower or any other Credit Party receives one or more Medicare Accelerated Payments, it shall (i) cause all Medicare Accelerated Payments to be paid directly to or promptly deposited into a deposit account subject to a deposit account control agreement acceptable to Administrative Agent, (ii) cause each Medicare Accelerated Payment to be repaid in full to CMS not later than 210 days (or such later date if extended by CMS or if not then as approved by Administrative Agent) after the date such Medicare Accelerated Payment was made and otherwise in accordance with the requirements of the Medicare Accelerated and Advance Payment Program (including the payment in full of any outstanding amount of a Medicare Accelerated Payment that remains unpaid at the end of such 210-day period (as such period may be extend in accordance herewith)), and (iii) within five (5) days after receipt, provide copies to Administrative Agent of any notices or other correspondence submitted or received by the Borrowers or other Credit Parties from any Governmental Authority (including any Medicare administrative contractor) in connection with the Medicare Accelerated and Advance Payment Program. The failure to make any such payment when due, beyond any applicable grace or cure period, shall be an immediate Event of Default.
(c) Should any Borrower or any other Credit Party elect to incur CARES Act Deferred Payroll Taxes, such Borrower or Credit Party shall (i) repay to the applicable Governmental Authority all CARES Act Deferred Payroll Taxes at the times required by the CARES Act and otherwise in accordance with the requirements of the CARES Act, (ii) within five (5) days after receipt, provide copies to Administrative Agent of any notices or other correspondence submitted or received by such Borrower or Credit Party from any Governmental Authority in connection with the CARES Act Deferred Payroll Taxes, and (iii) at the request of Administrative Agent, provide a calculation of estimated CARES Act Deferred Payroll Taxes and any other information related thereto. The failure to make any such payment of CARES Act Deferred Payroll Taxes to the applicable Governmental Authority when due shall be an immediate Event of Default.
79
(d) Within five (5) days after any Borrower or any other Credit Party receives the proceeds of any CARES Act Provider Relief Debt or other grant, reimbursement or other payment pursuant to the CARES Act or other COVID-19 relief or stimulus program (other than any Medicare Accelerated Payment), such Borrower or Credit Party shall (i) notify Administrative Agent of its receipt of such payment, (ii) notify Administrative Agent whether it will return all or any portion of such payment to HHS or other applicable Governmental Authority, (iii) within five (5) days after receipt, provide copies to Administrative Agent of any notices or other correspondence submitted or received by the Borrowers or other Credit Parties from any Governmental Authority (including any Medicare administrative contractor) in connection with such payment, and (iv) provide to Administrative Agent such additional information regarding such payment as Administrative Agent may reasonably request. The Borrowers and other Credit Parties shall use the proceeds of the CARES Act Provider Relief Debt exclusively for uses that are permitted pursuant to the CARES Act and otherwise comply in all material respects with the terms of the CARES Act (including, for the avoidance of doubt, the Relief Fund Payment Terms and Conditions published by HHS).
ARTICLE 6 NEGATIVE COVENANTS
So long as any Lender shall have any commitment to make any Loan hereunder, or any Loan or other Obligation hereunder shall remain unpaid or unsatisfied, each Borrower and each other Credit Party that is a party hereto covenants and agrees as follows:
6.1 Liens. Each Borrower and each other Credit Party shall not create, incur, assume or suffer to exist any Lien upon any Collateral or any of its other property, assets or revenues, whether now owned or hereafter acquired, other than Permitted Liens.
6.2 Investments. Each Borrower and each other Credit Party shall not make any Investments, except for Permitted Investments.
6.3 Indebtedness. Each Borrower and each other Credit Party shall not create, incur, assume or suffer to exist any Indebtedness, except for Permitted Indebtedness.
6.4 Loans. Each Borrower and each other Credit Party shall not make any loans or other advances of money to any Person, except (a) advances to an officer or employee for salary, travel expenses, commissions and similar items in the ordinary course of business; (b) prepaid expenses and extensions of trade credit made in the ordinary course of business; (c) deposits with financial institutions permitted hereunder; and (d) Permitted Intercompany Loans.
6.5 Asset Dispositions; Settlement of Debts. Each Borrower and each other Credit Party shall not make any Asset Disposition, except a Permitted Asset Disposition (whereupon the net proceeds of any such Permitted Asset Disposition shall be promptly deposited into a Non-Government Receivables Account). Each Borrower and each other Credit Party shall not cancel or otherwise forgive or release any claim or debt owed to such Borrower or such other Credit Party by any Person, except for adequate consideration and in the ordinary course of such Borrower’s or such other Credit Party’s business.
6.6 Distributions. Each Borrower and each other Credit Party shall not declare or make, directly or indirectly, any Distribution, or incur any obligation (contingent or otherwise) to do so, except for Permitted Distributions.
80
6.7 Fundamental Changes; Change to Organization Documents. Each Borrower and each other Credit Party shall not (a) engage in any business activity or operation materially different from that being conducted as of the Closing Date or any business substantially related or incidental thereto, (b) cease operating any material portion of its business as conducted on the Closing Date, (c) amend any of their respective Organization Documents in a manner adverse to any Credit Party or the Lenders, (d) change their jurisdiction of formation or organization or their type or form of organization (e.g., corporation or limited liability company), (e) change their name or identity (including trade name), (f) change their principal place of business, chief executive office, or location of any Collateral, without providing Administrative Agent at least thirty (30) days’ prior written notice of such change in location, or (g) merge, dissolve, liquidate, or consolidate with or into another Person, or transfer (whether in one transaction or in a series of transactions) all or substantially all of its assets (whether now owned or hereafter acquired) to or in favor of any Person. No Borrower or other Credit Party will utilize or enter into any agreement with any remote access or internet-based/cloud-based billing services or records repository provider without first entering into such agreements with Administrative Agent and such service provider, in form and substance satisfactory to Administrative Agent, as Administrative Agent shall deem necessary or helpful in the collection or realization of or on its Collateral.
6.8 Transactions With Affiliates. Each Borrower and each other Credit Party shall not enter into any transaction of any kind with any of such Borrower’s or such other Credit Party’s Affiliates, except (a) transactions expressly permitted by the Loan Documents; (b) payment of regularly scheduled compensation to officers and employees, and loans and advances permitted by Section 6.4; (c) payment of reasonable directors’ fees and directors’ indemnities to natural Persons; (d) transactions solely between Credit Parties (provided no indebtedness other than Permitted Intercompany Loans may exist); (e) transactions with Affiliates that were consummated on or prior to the Closing Date, as shown on Schedule 6.8; and (f) transactions with Affiliates in the ordinary course of business, upon fair and reasonable terms fully disclosed to Administrative Agent and no less favorable than would be obtained in a comparable arm’s-length transaction with a non-Affiliate.
6.9 Use of Proceeds. Each Borrower and each other Credit Party shall not use the proceeds of any Loans, whether directly or indirectly, and whether immediately, incidentally or ultimately, for the purpose of purchasing or acquiring any “margin stock” within the meaning of Regulation U of the Board of Governors of the Federal Reserve System or for any other purpose that would be inconsistent with such Regulation U or any other regulation of such Board of Governors, or for any purpose prohibited by Laws or any Loan Document.
6.10 [Reserved].
6.11 Certain Accounting Changes. Each Borrower and each other Credit Party shall not (a) change its Fiscal Year end or (b) make any change in its accounting treatment and reporting practices except as required or permitted by IFRS.
6.12 Healthcare Matters. Each Borrower and each other Credit Party shall not suffer or permit to occur any of the following:
(a) any transfer of a Healthcare Authorization or rights thereunder to any Person (other than a Borrower or Administrative Agent) or to any location other than (i) a Facility approved by Administrative Agent in advance in writing or (ii) as could not reasonably be expected to have a Material Adverse Effect on any Borrower;
(b) any pledge or hypothecation of any Healthcare Authorization as collateral security for any Indebtedness other than Indebtedness to Administrative Agent unless such other pledge or hypothecation is in connection with Permitted Indebtedness and subject to a Subordination Agreement; or
81
(c) any rescission, withdrawal, revocation, amendment or modification of or other alteration to the nature, tenor or scope of any Healthcare Authorization (i) without Administrative Agent’s prior written consent or (ii) to the extent any such rescission, withdrawal, revocation, amendment or modification or other alteration could not reasonably be expected to have a Material Adverse Effect on any Borrower.
6.13 ERISA.
(a) Each Borrower and each other Credit Party shall not engage in any transaction which would cause any obligation, or action taken or to be taken, hereunder (or the exercise by Administrative Agent or any Lender of any of its rights hereunder or the other Loan Documents) to be a non-exempt (under a statutory or administrative class exemption) prohibited transaction under ERISA.
(b) Each Borrower and each other Credit Party shall not maintain, sponsor, contribute to or become obligated to contribute to, or suffer or permit any ERISA Affiliate of any Borrower or any other Credit Party to, maintain, sponsor, contribute to or become obligated to contribute to, any Plan or any Welfare Plan or permit the assets of any Borrower or any other Credit Party to become “plan assets,” whether by operation of Law or under regulations promulgated under ERISA.
(c) Each Borrower and each other Credit Party shall deliver to Administrative Agent such certifications or other evidence from time to time throughout the Availability Period, as requested by Administrative Agent in its sole discretion, that (A) no Borrower nor any ERISA Affiliate maintains or maintained, sponsors or sponsored, contributes to or contributed to, has or had any obligations to make contributions to a Plan, or a “governmental plan” within the meaning of Section 3(3) of ERISA; (B) each Borrower and each other Credit Party is not subject to state statutes regulating investments and fiduciary obligations with respect to governmental plans; and (C) the assets of each Borrower and each other Credit Party do not constitute “plan assets” within the meaning of 29 C.F.R. Section 2510.3-101.
6.14 Management Agreement; Leases, Subordinated Indebtedness and other Material Contracts.
(a) No Borrower nor any other Credit Party shall appoint a Manager or enter into any management agreement without the prior written consent of Administrative Agent. The covenants, agreements and restrictions contained in this Section 6.14 are solely for the purposes of assuring that the business and operations of each Borrower and each other Credit Party is conducted in an appropriate manner consistent with Healthcare Laws and the preservation and protection of the Collateral as security for the Obligations and shall not place responsibility for the control, care, management or repair of the Facilities or any Collateral upon Administrative Agent or any Lender, or make Administrative Agent or any Lender responsible or liable for any negligence in the management, operation, upkeep, repair or control of the Facilities. No Borrower shall suffer or permit any material breach or default to occur in any of such Borrower’s obligations under any management agreement, nor suffer or permit the same to terminate by reason of any failure of such Borrower to meet any requirement thereof.
(b) Each Credit Party shall cause any Manager to enter into a Subordination Agreement, in form and substance satisfactory to Administrative Agent, pursuant to which (i) all compensation due to such Manager is subordinated in right and time of payment to all Obligations hereunder, (ii) all compensation due to such Manager is subordinated in right and time of payment to all Obligations hereunder, and (iii) Administrative Agent has the right to terminate the engagement of such Manager upon or following the occurrence of any Default or Event of Default.
82
(c) No Borrower nor any other Credit Party shall, directly or indirectly, (a) amend, otherwise modify or terminate any Lease Agreement, Subordinated Indebtedness Document, Permitted Intercompany Loans or other Material Contract except as approved by Administrative Agent or (b) declare, pay, make or set aside any amount for payment in respect of Subordinated Indebtedness, except for payments made in full compliance with and expressly permitted under the applicable Subordination Agreement.
(d) No Borrower nor any other Credit Party will amend, restate, supplement, waive or otherwise modify the CARES Act PPP Loan if the effect of such amendment, supplement, waiver or other modification would be adverse to Administrative Agent or Lenders as determined by Administrative Agent in its sole discretion.
6.15 Restrictive Agreements. Each Borrower and each other Credit Party shall not enter into any Restrictive Agreement, except (a) a Restrictive Agreement relating to secured Permitted Indebtedness, if such restrictions apply only to the collateral for such Permitted Indebtedness; and (b) customary provisions in leases and other contracts restricting assignment thereof or Liens in the assets or real property covered thereby.
6.16 Swap Agreements. Each Borrower and each other Credit Party shall not enter into any Swap Agreement, other than Swap Agreements that are entered into (a) in the ordinary course of business and not for speculative purposes and (b) with Administrative Agent or any Affiliate of Administrative Agent as the counterparty.
6.17 IRS Form 8821; Federal Employer Identification Number. Each Borrower and each other Credit Party shall not alter, amend, restate, or otherwise modify, or withdraw, terminate or re-file the IRS Form 8821 required to be filed pursuant to Section 3.1(j). No Borrower or other Credit Party shall change its federal employer identification number.
6.18 Burdensome Agreements. Each Borrower and each other Credit Party shall not, directly or indirectly, enter into any Contractual Obligation (other than this Agreement and any other Loan Document) that (a) limits the ability (i) of any Credit Party or any Subsidiary to make Distributions to any Credit Party or to otherwise transfer property to any Credit Party, (ii) of any Credit Party or any Subsidiary to guarantee the Indebtedness of any Credit Party or (iii) of any Credit Party or any Subsidiary to create, incur, assume or suffer to exist Liens on property of such Person (other than Permitted Liens and customary anti-assignment provisions in leases, sub-lease, licenses, sub-licenses and contracts); or (b) requires the grant of a Lien to secure an obligation of such Person if a Lien is granted to secure another obligation of such Person.
6.19 Limitations on Parent and Logistics. Neither Parent nor Logistics. shall directly or indirectly, (a) incur, directly or indirectly, any Indebtedness or any other obligation or liability whatsoever; (b) create or suffer to exist any Lien upon any property or assets now owned or hereafter acquired by Parent or Logistics, other than the Liens created under the Loan Documents; (c) engage in any business or activity or own any assets (including cash and Cash Equivalents) other than (i) in the case of Parent, holding one hundred percent (100%) of the Equity Interests of Logistics, (ii) in the case of Logistics, directly or indirectly holding one hundred percent (100%) of the Equity Interests of each other Subsidiary, (iii) performing their obligations and activities incidental thereto, and (iv) performing their obligations under the Loan Documents; (d) consolidate with or merge with or into, or convey, transfer or lease all or substantially all their assets to, any Person; or (e) fail to hold themselves out to the public as legal entities separate and distinct from all other Persons.
83
ARTICLE 7 FINANCIAL COVENANTS
7.1 Fixed Charge Coverage Ratio. Consolidated Entities shall not permit the Fixed Charge Coverage Ratio for the Test Period ending on each such date calculated at the end of each Fiscal Quarter, to be less than the ratio set forth opposite such Fiscal Quarter:
Each
Fiscal Quarter
Ending |
Fixed
Charge
Coverage Ratio |
|
September 30, 2020 through and including June 30, 2021 |
1.15: 1.00 | |
September 30, 2021 through and including June 30, 2022 |
1.20:1.00 | |
September 30, 2022 through the Revolving Loan Termination Date |
1.25:1.00 |
7.2 Minimum Net Availability. Consolidated Entities shall not permit, at any time following the Closing Date, Net Availability to be less than $1,000,000.00 calculated on a trailing thirty
(30) day average.
7.3 Cash Velocity. Consolidated Entities shall not permit, as of the last day of each month, commencing October 31, 2020, the Collections arising from the business operations of Consolidated Entities, calculated for the Net Revenue Test Period then ended, to be less than seventy-seven and one half percent (77.5%) of the Net Revenue, for such Net Revenue Test Period as reflected on Consolidated Entities financial statements for such Test Period.
ARTICLE 8 NOTICES AND REPORTING
8.1 Notices.
(a) All notices, consents, approvals and requests required or permitted hereunder or any other Loan Document shall be given in writing and shall be effective for all purposes if either hand delivered with receipt acknowledged, or by a nationally recognized overnight delivery service (such as Federal Express), or by certified or registered United States mail, return receipt requested, postage prepaid, or, with respect to routine or administrative notices (but specifically excluding notices of Default, Events of Default or acceleration of the Loans) by electronic mail, in each case addressed as follows (or to such other address or Person as a party shall designate from time to time by notice to the other party):
If to Administrative Agent:
CIT Bank, N.A.
One CIT Drive Livingston, NJ 07039
Attn: Portfolio Manager for Protech Home Medical Transaction
Email: [REDACTED - email address]
84
with a copy (which shall not constitute notice) to:
CIT Bank, N.A.
11 West 42nd Street
New York, NY 10036
Attn: [REDACTED - contact person’s name]
Email: [REDACTED - email address]
and
Waller Lansden Dortch & Davis, LLP
511 Union Street, Suite 2700
Nashville, TN 37219
Attn: [REDACTED - contact person’s name]
Telecopier No.: [REDACTED - number]
Email: [REDACTED - email address]
Waller Lansden Dortch & Davis, LLP
511 Union Street, Suite 2700
Nashville, TN 37219
Attn: [REDACTED - contact person’s name]
Telecopier No.: [REDACTED - number]
Email: [REDACTED - email address]
If to Borrowers:
c/o PHM Logistics Corporation
1019 Town Drive
Wilder, Kentucky 41076
Attn: [REDACTED - contact person’s name]
Email: [REDACTED - email address]
with a copy (which shall not constitute notice) to:
Katz Teller
255 East Fifth Street, Suite 2400
Cincinnati, OH 45202-4787
Attn: [REDACTED - contact person’s name]
Telecopier No.: [REDACTED - number]
Email: [REDACTED - email address]
A notice given hereunder or any other Loan Document shall be deemed to have been given: in the case of hand delivery, at the time of delivery; in the case of registered or certified mail, when delivered or the first attempted delivery on a Business Day; in the case of overnight delivery, upon the first attempted delivery on a Business Day; or, in the case of electronic mail, at the time of delivery.
85
(b) Notices and other communications to the Lenders and the Issuing Bank hereunder may be delivered or furnished by electronic communication (including e-mail and internet or intranet websites) pursuant to procedures approved by Administrative Agent; provided that, the foregoing shall not apply to notices to any Lender or the Issuing Bank pursuant to Article 2 if such Lender or the Issuing Bank, as applicable, has notified Administrative Agent that it is incapable of receiving notices under such Article 2 by electronic communication. Administrative Agent or the Borrower may, in its discretion, agree to accept notices and other communications to it hereunder by electronic communications pursuant to procedures approved by it; provided that, approval of such procedures may be limited to particular notices or communications. Unless Administrative Agent otherwise prescribes, (i) notices and other communications sent to an e-mail address shall be deemed received upon the sender’s receipt of an acknowledgement from the intended recipient (such as by the “return receipt requested” function, as available, return e-mail or other written acknowledgement); provided that, if such notice or other communication is not sent during the normal business hours of the recipient, such notice or communication shall be deemed to have been sent at the opening of business on the next Business Day for the recipient, and (ii) notices or communications posted to an internet or intranet website shall be deemed received upon the deemed receipt by the intended recipient at its e-mail address as described in the foregoing clause (i) of notification that such notice or communication is available and identifying the website address therefor.
(c) THE PLATFORM IS PROVIDED “AS IS” AND “AS AVAILABLE.” THE AGENT PARTIES (AS DEFINED BELOW) DO NOT WARRANT THE ACCURACY OR COMPLETENESS OF ANY MATERIALS OR INFORMATION PROVIDED BY OR ON BEHALF OF THE BORROWERS OR THE ADEQUACY OF THE PLATFORM, AND EXPRESSLY DISCLAIM LIABILITY FOR ERRORS IN OR OMISSIONS FROM ANY MATERIALS OR INFORMATION PROVIDED BY OR ON BEHALF OF THE BORROWERS. NO WARRANTY OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF THIRD PARTY RIGHTS OR FREEDOM FROM VIRUSES OR OTHER CODE DEFECTS, IS MADE BY ANY AGENT PARTY IN CONNECTION WITH ANY MATERIALS OR INFORMATION PROVIDED BY OR ON BEHALF OF THE BORROWERS OR THE PLATFORM. In no event shall Administrative Agent or any of its Affiliates, partners, directors, officers, employees, agents, trustees, administrators, managers, advisors and representatives (collectively, the “Agent Parties”) have any liability to the Borrowers, any Lender, the Issuing Bank or any other Person for losses, claims, damages, liabilities or expenses of any kind (whether in tort, contract or otherwise) arising out of the Borrowers’ or Administrative Agent’s transmission of any materials or information provided by or on behalf of the Borrowers through the internet, except to the extent that such losses, claims, damages, liabilities or expenses are determined by a court of competent jurisdiction by a final and nonappealable judgment to have resulted from the gross negligence or willful misconduct of such Agent Party; provided, however, that in no event shall any Agent Party have any liability to the Borrowers, any Lender, the Issuing Bank or any other Person for indirect, special, incidental, consequential or punitive damages (as opposed to direct or actual damages). As used in this Section 8.1, “Platform” means any electronic system, including StuckyNet, Value Track System™, and any other internet or extranet-based site, whether such electronic system is owned, operated or hosted by Administrative Agent, any other Agent Party, the Issuing Bank or any other Person, providing for access to data protected by passcodes or other security system.
8.2 Required Notices from Credit Parties. Each Borrower and each other Credit Party shall promptly, and in any event within three (3) Business Days after such Person or any Authorized Officer of such Person obtains knowledge thereof, provide telephonic and written notice to Administrative Agent and each Lender of any of the following applicable to it:
(a) the commencement of any litigation, proceedings or investigations, including those by or before any Governmental Authority, and all actions and proceedings in any court or before any arbitrator against or involving any Borrower or any other Credit Party or any of its properties, assets or businesses in which the amount of claimed damages, fines or other liabilities is $100,000 or more;
86
(b) any material citation or other notice of any material violation received by any Borrower or any other Credit Party from any Governmental Authority, including any notice of violation of Healthcare Laws or Environmental Laws or any rescission or threatened revocation of any Healthcare Authorization;
(c) any attachment, judgment, Lien, levy or order exceeding $25,000 that may be assessed against any Borrower or any other Credit Party;
(d) the occurrence of any “reportable event” (as defined in ERISA) which might result in the termination by the PBGC of any Plan covering any officers or employees of any Credit Party, any benefits of which are, or are required to be, guaranteed by the PBGC, (y) receipt of any notice from the PBGC of its intention to seek termination of any Plan or appointment of a trustee therefor or (z) its intention to terminate or withdraw from any Plan;
(e) the occurrence of any Default or Event of Default;
(f) any material Environmental Release by any Credit Party or on any Facility or any other property owned, leased or occupied by any Credit Party; or receipt of any Environmental Notice;
(g) copies of all material reports, if any, submitted to any Borrower, its Board of Directors or members by its independent public accountants in connection with their auditing function, including any management report and any management responses thereto or any notice given or received regarding the discharge of or any withdrawal or resignation by any Borrower’s or Credit Party’s certified independent accountants;
(h) after any material property owned or used by any Borrower or any other Credit Party is materially damaged or destroyed, or suffers any other material loss in excess of $25,000;
(i) (i) the receipt of any complaint, notice or request from any Governmental Authority or Government Reimbursement Program regarding any investigation or claim of liability, (ii) any pending, threatened or actual investigation or survey of any Borrower, any other Credit Party, or their directors, officers or managing employees by any Third-Party Payor, (iii) any Borrower or any other Credit Party becoming a party to a corporate integrity agreement with the Office of Inspector General of the Department of Health and Human Services, (iv) any Borrower or any other Credit Party entering into any settlement agreement with any Governmental Authority, (v) any Borrower or any other Credit Party becoming a defendant in any qui tam/False Claims Act litigation, (vi) any Borrower or any other Credit Party being served with or receiving any search warrant, subpoena, civil investigative demand or contact letter by or from any federal or state enforcement agency relating to an investigation, but only to the extent that any Borrower or any other Credit Party or any Contract Provider material to the business or operations of a Borrower or any other Credit Party is the subject of any such investigation, or (viii) any Borrower or other Credit Party becoming subject to any written complaint filed with or submitted to any Governmental Authority having jurisdiction over such Borrower or Credit Party or filed with or submitted to such Borrower or such Credit Party pursuant to their policies relating to the filing or submissions of such types of complaints, from employees, independent contractors, vendors, physicians, or any other Person that would indicate that such Borrower or such Credit Party has violated any Law, he violation thereof which could reasonably be expected to have a Material Adverse Effect;
87
(j) the receipt of any cost reports, operating surveys, rate reports, rate computation reports, licensing reports, deficiency notices, recoupment orders or similar reports from any Government Reimbursement Program, each together with true and correct copies thereof;
(k) any termination or default or any material notice given or received by a Borrower or any other Credit Party under any Material Contract;
(l) the assertion of any Intellectual Property claim, if an adverse resolution could reasonably be expected to have a Material Adverse Effect;
(m) any decision by the SBA that any and/or all of the CARES Act PPP Loan has been forgiven, and/or (B) any and/or all of the CARES Act PPP Loan will not be forgiven;
(n) any decision by HHS or other Governmental Authority that any portion of the CARES Act Provider Relief Debt must be repaid;
(o) any notification from the SBA or the CARES Act PPP Loan lender or any other Governmental Authority that there has been a default with respect to the CARES Act PPP Loan or the occurrence of any event or condition that results in the CARES Act PPP Loan becoming due prior to its scheduled maturity or that enables or permits the holder or holders thereof to declare the CARES Act PPP Loan to be due, or to require the prepayment, repurchase, redemption or defeasance thereof, prior to its scheduled maturity;
(p) following the occurrence of any event described in clauses (i) or (ii) of the definition of “Change of Management”; or
(q) the occurrence of any event or circumstance that could reasonably be expected to have a Material Adverse Effect.
8.3 Financial Statements, Borrowing Base Reports, Compliance Certificates and Projections. The Borrowers agree to furnish to Administrative Agent and the Lenders:
(a) as soon as available but in any event, within one hundred twenty (120) days after the end of each Fiscal Year of Borrowers, financial statements of the Consolidated Entities (such financial statements to be provided in Dollars) for such year which present fairly the Consolidated Entities’ financial condition including the balance sheet of the Consolidated Entities as at the end of such Fiscal Year and a statement of cash flows and income statement for such Fiscal Year, all on a consolidated and consolidating basis (for each of the Consolidated Entities to the extent requested by Administrative Agent; provided, however, the consolidating statements will not include a cash flow statement or be consolidating for subsidiaries below the direct subsidiaries of Logistics), setting forth in the consolidated and consolidating statements in comparative form, the corresponding figures as at the end of and for the previous Fiscal Year, all in reasonable detail, including all supporting schedules, and such consolidated and consolidating statements to be audited by independent public accountants of recognized standing, selected by Borrowers and reasonably satisfactory to Administrative Agent, and all such statements prepared in accordance with IFRS;
(b) as soon as available but in any event within sixty (60) days after the end of each Fiscal Quarter, Consolidated Entities’ internally prepared quarterly consolidated and consolidating (for each of the Consolidated Entities to the extent requested by Administrative Agent; provided, however, the consolidating statements will not include a cash flow statement or be consolidating for subsidiaries below the direct subsidiaries of Logistics) financial statements (such financial statements to be provided in Dollars), along with year-to-date information, including a balance sheet, income statement and statement of cash flows with respect to the periods measured;
88
(c) as soon as available but in any event within thirty (30) days after the end of each calendar month, Consolidated Entities’ internally prepared monthly consolidated and consolidating (for each of the Consolidated Entities to the extent requested by Administrative Agent, provided, however, the consolidating statements will not include a cash flow statement or be consolidating for subsidiaries below the direct subsidiaries of Logistics) financial statements (such financial statements to be provided in Dollars), along with year-to-date information, including a balance sheet and income statement with respect to the periods measured;
(d) contemporaneously with the delivery of the annual and quarterly financial statements referred to in clauses (a) and (b) (and (c) with respect of this Section 8.3, such financial reports and information as Administrative Agent shall require evidencing compliance with the applicable financial covenants, which reports and information shall be in Dollars and include, at a minimum, delivery to Administrative Agent of a Compliance Certificate, and, if requested by Administrative Agent, back-up documentation (including invoices, receipts and other evidence of costs incurred during such quarter as Administrative Agent shall reasonably require) evidencing the propriety of the deductions from revenues in determining such compliance;
(e) as and when filed by each Credit Party, copies of all annual reports filed pursuant to ERISA in connection with each benefit plan of each Borrower subject to ERISA;
(f) within forty-five (45) days of the last day of each Fiscal Year, annual consolidated projections for the Consolidated Entities for the following Fiscal Year, including a balance sheet, income statement and statement of cash flow projections, all prepared on a quarterly basis (such projections and financial statements to be provided in Dollars);
(g) as soon as available but in any event within fifteen (15) days of the end of each calendar month and at such other times as may be requested by Administrative Agent, in each case as of the period then ended:
(i) a detailed report of the Borrowing Base, on a consolidated basis to the extent acceptable to Administrative Agent in its sole discretion with additional detail to be provided at Administrative Agent’s request, in form and substance acceptable to Administrative Agent, certified by an Authorized Officer of the Borrowers, (the “Borrowing Base Report”), including:
A. detailed aging of the Borrowers’ Accounts (1) including all invoices aged by invoice date and (2) prepared in a manner reasonably acceptable to Administrative Agent, together with a summary specifying the name, address, and balance due for each payor;
B. detailed aging of the accounts payable of Borrowers, including (1) all invoices aged by invoice date and (2) prepared in a manner reasonably acceptable to Administrative Agent, together with a summary specifying the name, address and balance due for each entity owed with respect to such accounts payable;
C. an updated report of the Eligible Prospective Rental Contract Streams;
89
D. a worksheet of calculations prepared by the Borrowers to determine Eligible Accounts and Eligible Prospective Rental Contract Streams, such worksheets detailing the Accounts excluded from Eligible Accounts and Eligible Prospective Rental Contract Streams and the reason for such exclusion; and
E. any updates to Schedule 4.16 reflecting any Inventory Suppliers not previously included on such schedule.
(ii) a reconciliation of the loan balance per the Borrowers’ general ledger to the loan balance under this Agreement;
(iii) a schedule detailing the obligations of each Borrower and each of the Borrowers’ Subsidiaries in respect of any Swap Agreement (for purposes of this clause (iii), the “obligations” of any Borrower or any Subsidiary in respect of any Swap Agreement at any time shall be the maximum aggregate amount (giving effect to any netting agreements) that such Borrower or such Subsidiary would be required to pay if such Swap Agreement were terminated at such time);
(iv) a detailed report of all Capital Lease obligations, in form satisfactory to Administrative Agent in its reasonable discretion; and
(v) the number of boxes of chattel paper then stored with each approved records storage facility subject to a Custodial Administration Agreement;
(h) on Monday of each week, a report in Dollars of all collections and billing activity as of the preceding Friday on the Borrowers’ Accounts, reported on a rolling basis and in form and substance acceptable to Administrative Agent, which report shall include the net billed Eligible Accounts reported in the Borrowing Base Report most recently delivered to Administrative Agent, plus Eligible Accounts, less cash posted, less un-posted cash (all since the Borrowing Base Report delivered to Administrative Agent), and including any other required adjustments (the “A/R Rollforward”); and
(i) such other data, reports, statements and information (financial or otherwise), as Administrative Agent may reasonably request.
Should the Consolidated Entities modify their accounting principles and procedures from those in effect on the Closing Date, the Borrowers agree to prepare and deliver to Administrative Agent and the Lenders statements of reconciliation in form and substance reasonably satisfactory to Administrative Agent.
8.4 Collateral Reporting.
(a) The Borrowers agree to furnish to Administrative Agent such information as Administrative Agent reasonably requires in connection with monitoring the Collateral, at the times and in the manner determined by Administrative Agent, including Medicare and Medicaid cost reports and audits.
(b) Credit Parties will use commercially reasonable efforts to at all times keep its furniture, fixtures and equipment in good repair and physical condition, ordinary wear and tear excepted.
8.5 Protected Health Information. All written information, reports, statements and other papers and data furnished by or on behalf of each Borrower and each other Credit Party to Administrative Agent and Lenders shall be furnished by each Borrower and each other Credit Party in material compliance with all Applicable Laws regarding the use and/or disclosure of patient health information, including, but not limited to, regulations, standards and rules promulgated under the HIPAA. Each Borrower and each other Credit Party agrees not to include or disclose any “protected health information” in any such information, reports, statements and other papers or data furnished by or on behalf of each Borrower and each other Credit Party to Administrative Agent and Lenders and further agrees to indemnify Administrative Agent and each Lender pursuant to Section 11.15 for any Indemnified Liabilities Administrative Agent or any Lender may incur as a result of the provision of any “protected health information” by such Borrower to Administrative Agent or such Lender.
90
ARTICLE 9 DEFAULTS AND REMEDIES
9.1 Events of Default. An “Event of Default” shall exist hereunder if any of the following shall occur:
(a) Payment: If any Borrower fails to make any payment of (i) principal, including any Reimbursement Obligations or any overadvance pursuant to Section 2.17, in respect to the Loans and the other Obligations on the date such payment is due and payable or (ii) any interest on any Loan or any fee or any other amount due hereunder not otherwise addressed in the immediately preceding clause (i) or any other Loan Document no later than three (3) Business Days after due and payable;
(b) Other Obligations: If any Borrower fails to make any payment of fees, Expenses or other monetary obligations (other than as described in Section 9.1(a)), arising out of or incurred in connection with this Agreement and the other Loan Documents on the date any such payment is due and payable, and such failure continues for a period of three (3) Business Days;
(c) Covenants: If any Borrower or any other Credit Party or any Affiliate of any of the foregoing that is a party thereto:
(i) shall be in violation, breach or default of, or shall fail to perform, observe or comply with any covenant, obligation or agreement set forth in (A) Sections 2.6, 5.2, 5.4, 5.7, 5.11, 5.12, 5.14, 5.17, 7.1 or 7.3 of this Agreement or (B) Article 6 or Article 8 of this Agreement;
(ii) shall be in violation, breach or default of, or shall fail to perform, observe or comply with any covenant, obligation or agreement set forth in Section 7.2 and such violation, breach, default or failure continues for a period of ten (10) days after the earlier of (i) the date on which any Authorized Officer of any Borrower or other Credit Party first knew or became aware (or should have known or been aware) of such failure, violation, breach or default, and (ii) the date on which written notice thereof is given to Borrowers by Administrative Agent; or
(iii) shall be in violation, breach or default of, or shall fail to perform, observe or comply with, any other covenant, obligation or agreement in this Agreement or any other Loan Document (other than any such covenant, obligation or agreement described in Sections 9.1(a), 9.1(b), 9.1(c)(i), or 9.1(c)(ii) above), and such violation, breach, default or failure continues for a period of thirty (30) days after the earlier of (i) the date on which any Authorized Officer of any Borrower or any other Credit Party first knew or became aware (or should have known or been aware) of such failure, violation, breach or default, and (ii) the date on which written notice thereof is given to Borrowers by Administrative Agent;
91
(d) Representations, Warranties and Information: If any representation or warranty made, or financial or other information provided, by any Borrower or any other Credit Party or Affiliate thereof in this Agreement and any other Loan Document, or in any report, certificate, financial statement or other instrument, agreement or document that is delivered in connection with the Loan Documents shall be false or misleading in any material respect (except that such materiality qualifier shall not be applicable to any representations and warranties that already are qualified or modified by materiality in the text thereof) as of the date the representation or warranty was made or the financial or other information was provided;
(e) Insolvency Proceedings: If a receiver, liquidator or trustee shall be appointed for any Borrower or any other Credit Party; or any Borrower or any other Credit Party shall make an assignment for the benefit of creditors or be adjudicated a bankrupt or insolvent under any Debtor Relief Law; or any Insolvency Proceeding shall be filed by or against, consented to, or acquiesced in by, any Borrower or any other Credit Party, as the case may be; provided, however, if such appointment, adjudication, or Insolvency Proceeding was involuntary and not consented to by any Borrower or any other Credit Party, as the case may be, only upon the same not being discharged, stayed or dismissed within sixty (60) days;
(f) Other Indebtedness: If (i) any Borrower or any other Credit Party shall default beyond any grace period in the payment of principal or interest of any Indebtedness of such Credit Party in excess of $250,000 in the aggregate to any Person (other than to Administrative Agent and Lenders under Section 9.1(a) or (b)); (ii) any Borrower or any other Credit Party otherwise defaults under the terms of any such Indebtedness if the effect of such default is to enable the holder of such Indebtedness to accelerate the payment of such Credit Party’s obligations thereunder prior to the maturity date or prior to the regularly scheduled date of payment (without regard to the provisions of any Subordination Agreement that would restrict the ability of the holder to so accelerate or exercise any remedies); or (iii) the occurrence of any breach or default under any terms or provisions of any Subordinated Indebtedness Document or under any Subordination Agreement or the occurrence of any event requiring the prepayment of any Subordinated Indebtedness;
(g) Loan Documents Validity and Enforceability: The validity or enforceability of any Loan Document shall at any time for any reason be declared to be null and void, or a proceeding shall be commenced by any Borrower, any other Credit Party or any Affiliate thereof, or by any Governmental Authority, seeking to establish the invalidity or unenforceability thereof, or any Borrower or any other Credit Party or any Affiliate of any of the foregoing that is a party thereto shall deny that it has any liability or obligation purported to be created under any Loan Document or shall otherwise attempt to rescind any of their obligations under the Loan Documents;
(h) Loan Documents: The occurrence of any event identified in any other Loan Document as an Event of Default;
(i) Liens: If any Lien in favor of Administrative Agent shall cease to be a valid, enforceable First Priority Lien or if any Borrower, any Credit Party, any Affiliate of any of the foregoing or any Governmental Authority shall assert any of the foregoing;
(j) Deposit Account Agreement Instructions: If (i) any instruction or agreement relating to any Government Receivables Account, any Non-Government Receivables Account, or any related depository account is amended or terminated without the written consent of Administrative Agent, (ii) any Credit Party instructs or gives any notice to a Deposit Account Bank to cause amounts on deposit in any Government Receivables Account or any Non-Government Receivables Account to be transferred or disposed of other than as required under Section 2.6, (iii) any Borrower fails to forward any Collections to the applicable Government Receivables Account or Non-Government Receivables Account as required under Section 2.6, or (iv) any Borrower directs any Account Debtor to make a payment in respect of any Account to any place or deposit account other than the applicable Government Receivables Account or Non-Government Receivables Account as required under Section 2.6;
92
(k) Healthcare Laws and Healthcare Authorizations: If any of the following shall occur:
(i) any Healthcare Authorizations of any Borrower or any other Credit Party necessary for the operation of the business of any Borrower or any other Credit Party as presently operated shall be revoked, fail to be renewed, restricted, suspended or terminated;
(ii) any Borrower or any other Credit Party shall fail to be eligible for any reason to participate in any Government Reimbursement Program or to accept assignments or rights to reimbursement thereunder;
(iii) any Non-Government Payor shall terminate, revoke or fail to renew any Borrower’s or any other Credit Party’s right to participate in any program that provides reimbursement for Healthcare Services, and such termination, revocation or failure to renew has or could reasonably be expected to have a Material Adverse Effect;
(iv) any Credit Party or any Authorized Officer shall have been found guilty of an act of fraud or shall have been indicted for or convicted of a felony crime that relates to any Healthcare Services, any Government Reimbursement Program or any other reimbursement program with a Third-Party Payor;
(v) if any Credit Party is found to have been overpaid by a Government Account Debtor by more than $250,000 during any period covered by an audit conducted by such Government Account Debtor, and such overpayment is not repaid within 30 days of its due date, unless the same is being contested in good faith and reserved for in a manner reasonably acceptable to Administrative Agent;
(vi) the recall of any Product from the market, the voluntary withdrawal of any Product from the market, or actions to discontinue the sale of any Product, if the same could reasonably be expected to have a Material Adverse Effect;
(vii) the termination of any agreements with manufacturers that supply any Product or any components of any Product or any changes to any agreements with manufacturers that supply any Product or any components of any Product that could reasonably be expected to have a Material Adverse Effect;
(viii) the institution of any action or proceeding by the FDA or other Governmental Authority to order the withdrawal of any Product or Product category that is material to Borrowers’ business, taken as a whole, from the market or to enjoin any Borrower or any representative of any such Borrower from manufacturing, marketing, selling or distributing any Product or Product category that is material to Borrowers’ business, taken as a whole;
(ix) the institution of any action or proceeding by the FDA or any other Governmental Authority to revoke, suspend, reject, withdraw, limit, or restrict any Healthcare Authorization held by any Borrower or any other Credit Party or any representative of such Person if the same could reasonably be expected to have a Material Adverse Effect;
93
(x) the commencement of any enforcement action against any Borrower or any other Credit Party by the FDA or any other Governmental Authority if such enforcement action could reasonably be expected to have a Material Adverse Effect; or
(xi) a Change in Law occurs, including a change in FDA policies or procedures or state government agency policies or procedures, which could reasonably be expected to have a Material Adverse Effect.
(l) Material Contracts and Subordinated Indebtedness: If (i) a default or event of default shall occur under any Material Contract or any Lease Agreement that has not been cured within the time period set forth therein, or (ii) the termination of any Material Contract or any Lease Agreement or (iii) any subordination or intercreditor provision in any Subordination Agreement, or in any document or instrument governing Subordinated Indebtedness shall cease to be in full force and effect, or any Borrower, any other Credit Party or any other Person (including the holder of any applicable Subordinated Indebtedness) shall contest in any manner the validity, binding nature or enforceability of any such provision;
(m) Change of Control: If any Change of Control shall occur;
(n) Judgments: If one or more judgments, orders, or awards for the payment of money involving an aggregate amount of $250,000, or more (except to the extent fully covered by insurance pursuant to which the insurer has not denied coverage) is entered or filed against any Borrower or any other Credit Party, or with respect to any of their respective assets, and either (a) there is a period of thirty (30) consecutive days at any time after the entry of any such judgment, order, or award during which (1) the same is not discharged, satisfied, vacated, or bonded pending appeal, or (2) a stay of enforcement thereof is not in effect, or (b) enforcement proceedings are commenced upon such judgment, order, or award;
(o) Pension Benefits: If any Borrower or any other Credit Party fails to comply with ERISA so that proceedings are commenced to appoint a trustee under ERISA to administer any employee plans or the PBGC institutes proceedings to appoint a trustee to administer such plan(s), or a Lien is entered to secure any deficiency or claim or a “reportable event” as defined under ERISA occurs;
(p) Material Adverse Change: If any material adverse change occurs in the Collateral, business, property, assets, prospects, operations or condition, financial or otherwise of any Borrower or any other Credit Party, or the occurrence of any other event which has or could reasonably be expected to have a Material Adverse Effect;
(q) Criminal Proceedings: The institution by any Governmental Authority of criminal proceedings against any Credit Party;
(r) Swap Agreements: If any termination payment shall be due by any Borrower or any other Credit Party under any Swap Agreement and such amount is not paid within thirty (30) days of the due date thereof or a default, event of default, termination event or other similar condition or event (howsoever described in respect of such Borrower or such other Credit Party) shall have occurred under any Swap Agreement; or
(s) Change of Management: If any Change of Management shall occur.
94
9.2 Remedies. If any Event of Default occurs and is continuing, Administrative Agent shall have the right in its sole discretion (or at the discretion of the Required Lenders) to take any or all of the following actions:
(a) declare the commitment of the Lenders to make Loans and the commitment of Issuing Bank to issue Letters of Credit to be terminated;
(b) declare the unpaid principal amount of all outstanding Loans, all interest accrued and unpaid thereon, and all other amounts owing or payable hereunder or under any other Loan Document to be immediately due and payable, without presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived by any Borrower;
(c) direct Borrowers to pay to Issuing Bank cash collateral as security for any subsequent drawings under then outstanding Letters of Credit in an amount equal to 105% of the maximum amount of which may be drawn under such outstanding Letters of Credit;
(d) reduce the advance rates in respect of Eligible Accounts and Eligible Prospective Rental Contract Stream or take additional reserves against or otherwise modify the Borrowing Base; and
(e) exercise all rights and remedies available to Administrative Agent and the Lenders under the Loan Documents, including any right of set-off under Section 11.21, or under the UCC or any other Applicable Law;
provided, however, that upon the occurrence of an Event of Default described in Section 9.1(e) or any actual or deemed entry of an order for relief with respect to any Borrower or any other Credit Party under the Bankruptcy Code or in connection with any Insolvency Proceeding, the obligation of Lenders to make Loans and the obligation of Issuing Bank to issue Letters of Credit shall automatically terminate, the unpaid principal amount of all outstanding Loans and other Obligations and all interest and other amounts as aforesaid shall automatically become due and payable without further act of Administrative Agent or any Lender.
9.3 Application of Payments.
(a) So long as no Event of Default has occurred and is continuing, all proceeds of any repayment, including any prepayments of the Loans, shall be applied by Administrative Agent in the following order of priority:
FIRST, to fees (including Documentation Fees), Expenses and any other amounts then due and owing under the Loan Documents;
SECOND, to accrued and unpaid interest on the Loans of each Lender, ratably among them in accordance with their Pro Rata Shares; and
THIRD, to principal on the Loans of each Lender, ratably among them in accordance with their Pro Rata Shares.
(b) Notwithstanding any other provisions of this Agreement to the contrary, upon the occurrence and during the continuance of an Event of Default (or after the Loans and all other Obligations under the Loan Documents have otherwise become due and payable in accordance with the terms of Section 9.2), all amounts collected or received by Administrative Agent and any Lender on account of the Obligations or any other amounts outstanding under any of the Loan Documents or in respect of the Collateral or any disposition of the Collateral shall be applied as follows (and each Borrower irrevocably waives the right to direct the application of any such amounts in any other manner):
95
FIRST, to the payment of all fees (including Documentation Fees), costs, Expenses and indemnities of Administrative Agent and any Protective Advances made by Administrative Agent pursuant to the terms of the Loan Documents;
SECOND, to payment of that portion of the Obligations constituting fees, costs, Expenses and indemnities of the Lenders as provided herein, ratably among them in accordance with their Pro Rata Shares;
THIRD, to the payment of all of the Obligations consisting of accrued and unpaid interest owing to the Lenders, ratably among them in accordance with their Pro Rata Shares;
FOURTH, to the payment on a pari passu basis of (1) all Obligations consisting of unpaid principal on the Loans, ratably among the Lenders in accordance with their Pro Rata Shares, (2) any amounts due under any Banking Services Obligations or Swap Agreements permitted hereunder pursuant to which Administrative Agent or any Affiliate of Administrative Agent is the counterpart, and (3) Reimbursement Obligations then due and payable and cash collateralization of unmatured Reimbursement Obligations pursuant to Section 9.2(c) to the extent not then due and payable;
FIFTH, to all other Obligations which shall have become due and payable under the Loan Documents or otherwise and not repaid pursuant to clauses “FIRST” through “FOURTH” above; and
SIXTH, to the payment of the surplus, if any, to Borrowers or whoever else may be lawfully entitled to receive such surplus.
In carrying out the foregoing, amounts received shall be applied in the numerical order provided above until exhausted prior to application to the next succeeding category.
9.4 Rights to Appoint Receiver. Without limiting and in addition to any other rights, options and remedies Administrative Agent and Lenders have hereunder, the other Loan Documents, the UCC, at law or in equity, upon the occurrence and continuation of an Event of Default or the acceleration of the Loans pursuant to Section 9.2, Administrative Agent shall have the right to apply for and have a receiver appointed by a court of competent jurisdiction to enforce the rights and remedies of Administrative Agent and the Lenders in order to manage, protect, preserve, sell or dispose the Collateral and continue the operation of the business of Borrowers and the Credit Parties and to collect all revenues and profits thereof and apply the same to the payment of all expenses and other charges of such receivership including the compensation of the receiver and to the payments as aforesaid until a sale or other disposition of such Collateral shall be finally made and consummated. EACH BORROWER AND EACH OTHER CREDIT PARTY HEREBY IRREVOCABLY CONSENTS TO AND WAIVES ANY RIGHT TO OBJECT TO OR OTHERWISE CONTEST THE APPOINTMENT OF RECEIVER AS PROVIDED ABOVE. EACH BORROWER AND EACH OTHER CREDIT PARTY (I) GRANTS SUCH WAIVER AND CONSENT KNOWINGLY AFTER HAVING DISCUSSED THE IMPLICATIONS THEREOF WITH COUNSEL, (II) ACKNOWLEDGES THAT (A) THE UNCONTESTED RIGHT TO HAVE A RECEIVER APPOINTED FOR THE FOREGOING PURPOSES IS CONSIDERED ESSENTIAL BY ADMINISTRATIVE AGENT AND LENDERS IN CONNECTION WITH THE ENFORCEMENT OF ITS RIGHTS AND REMEDIES HEREUNDER AND THE OTHER LOAN DOCUMENTS, AND (B) THE AVAILABILITY OF SUCH APPOINTMENT AS A REMEDY UNDER THE FOREGOING CIRCUMSTANCES WAS A MATERIAL FACTOR IN INDUCING ADMINISTRATIVE AGENT AND LENDERS TO MAKE THE LOANS; AND (III) AGREES TO ENTER INTO ANY AND ALL STIPULATIONS IN ANY LEGAL ACTIONS, OR AGREEMENTS OR OTHER INSTRUMENTS IN CONNECTION WITH THE FOREGOING AND TO COOPERATE FULLY WITH ADMINISTRATIVE AGENT AND LENDERS IN CONNECTION WITH THE ASSUMPTION AND EXERCISE OF CONTROL BY THE RECEIVER OVER ALL OR ANY PORTION OF THE COLLATERAL, THE FACILITIES OR ANY OTHER PROPERTY OF ANY BORROWER OR ANY OTHER CREDIT PARTY.
96
9.5 Remedies Cumulative. Upon the occurrence of an Event of Default, all or any one or more of the rights, powers, privileges and other remedies available to Administrative Agent or any Lender against any Borrower or any of the other Credit Parties under the Loan Documents or at law or in equity may be exercised by Administrative Agent at any time and from time to time, whether or not all or any of the Obligations shall be declared, or be automatically, due and payable, and whether or not Administrative Agent shall have commenced any foreclosure proceeding or other action for the enforcement of its rights and remedies under any of the Loan Documents. Any such actions taken by Administrative Agent shall be cumulative and concurrent and may be pursued independently, singly, successively, together or otherwise, at such time and in such order as Administrative Agent may determine in its discretion, to the fullest extent permitted by Law, without impairing or otherwise affecting the other rights and remedies of Administrative Agent and Lenders permitted by Law, equity or contract or as set forth in the Loan Documents. Without limiting the generality of the foregoing, each Borrower agrees that if an Event of Default is continuing, (i) to the extent permitted by Applicable Law, Administrative Agent is not subject to any “one action” or “election of remedies” Law or rule, and (ii) all Liens and other rights, remedies or privileges provided to Administrative Agent and Lenders shall remain in full force and effect until Administrative Agent has exhausted all of its remedies against the Collateral, the Collateral has been sold and/or otherwise realized upon in satisfaction of the Obligations or the Obligations have been paid in full. No delay or omission to exercise any remedy, right or power accruing upon an Event of Default, or the granting of any indulgence or compromise by Administrative Agent or any Lender shall impair any such remedy, right or power hereunder or be construed as a waiver thereof, but any such remedy, right or power may be exercised from time to time and as often as may be deemed expedient. Any suspension or waiver by Administrative Agent or Lenders, as applicable, of a Default or Event of Default shall not suspend, waive or affect any other Default or Event of Default, whether the same is prior or subsequent thereto and whether of the same or of a different kind or character.
9.6 Severance. Administrative Agent shall have the right from time to time to sever this Agreement, any Revolving Notes, and the other Loan Documents into one or more separate notes, mortgages and other security documents in such denominations and priorities of payment and Liens as Administrative Agent shall determine in its discretion for purposes of evidencing and enforcing the rights and remedies of Administrative Agent and the other Lenders hereunder. Each Credit Party shall execute and deliver to Administrative Agent from time to time, promptly after the request of Administrative Agent, a severance agreement and such other documents as Administrative Agent shall request in order to effect the severance described in the preceding sentence, all in form and substance reasonably satisfactory to Administrative Agent. Each Credit Party hereby absolutely and irrevocably appoints Administrative Agent as its true and lawful attorney, coupled with an interest, in its name and stead to make and execute all documents necessary or desirable to effect such severance, each Credit Party ratifying all that such attorney shall do by virtue thereof.
9.7 Administrative Agent’s Right to Perform. If any Borrower or any other Credit Party fails to perform any covenant or obligation contained herein and such failure shall continue for a period of five (5) Business Days after any Borrower’s or any other Credit Party’s receipt of written notice thereof from Administrative Agent, without in any way limiting Administrative Agent’s and Lenders’ right to exercise any of their rights, powers or remedies as provided hereunder, or under any of the other Loan Documents, Administrative Agent may, but shall have no obligation to, perform, or cause performance of, such covenant or obligation, and all costs, expenses, liabilities, penalties and fines of Administrative Agent incurred or paid in connection therewith shall be payable by Borrowers to Administrative Agent upon demand and if not paid shall be added to the Obligations, shall be secured by the Collateral and shall bear interest thereafter at the Default Rate. Notwithstanding the foregoing, Administrative Agent shall have no obligation to send notice to Borrower Representative or any Credit Party of any such failure.
97
9.8 License. Administrative Agent, on behalf of itself and the Lenders, is hereby granted an irrevocable, non-exclusive license or other right to use, license or sub-license (without payment of royalty or other compensation to any Person) any or all Intellectual Property of any Borrower or any other Credit Party, computer hardware and software, trade secrets, brochures, customer lists, promotional and advertising materials, labels, packaging materials and other property, in advertising for sale, marketing, selling, collecting, completing manufacture of, or otherwise exercising any rights or remedies with respect to, any Collateral. Each Credit Party’s rights and interests under Intellectual Property shall inure to Administrative Agent’s and Lenders’ benefit.
9.9 Injunctive Relief. Each Borrower and each other Credit Party acknowledges and agrees that if any Borrower or any other Credit Party fails to perform any covenant or obligation contained herein or under any of the other Loan Documents, Administrative Agent and Lenders may have no adequate remedy in monetary damages and, accordingly, shall be entitled to an injunction, (including a temporary restraining order, preliminary injunction, writ of attachment or order compelling performance) against such non-performance, including maintaining the procedure set forth in this Agreement with respect to Collections. Neither Administrative Agent nor Lenders shall be deemed to have waived any other legal or equitable remedies hereunder, the other Loan Documents or at law if Administrative Agent and Lenders shall seek injunctive relief under this Section 9.9. Each Borrower waives any requirement for the posting of a bond or other security by Administrative Agent and Lenders in connection with any such injunctive relief.
9.10 Collection of Accounts. Subject to Applicable Law regarding Government Account Debtors, Administrative Agent may, at any time and from time to time after the occurrence and during the continuance of an Event of Default, whether before or after notification to any Account Debtor and whether before or after the maturity of any of the Obligations, (i) enforce collection of any Accounts of any Credit Party or other amounts owed to any Credit Party by suit or otherwise; (ii) exercise all of any Credit Party’s rights and remedies with respect to proceedings brought to collect any Accounts or other amounts owed to such Credit Party; (iii) surrender, release or exchange all or any part of any Accounts or other amounts owed to any Credit Party, or compromise or extend or renew for any period (whether or not longer than the original period) any indebtedness thereunder; (iv) sell or assign any Account of any Credit Party or other amount owed to any Credit Party upon such terms, for such amount and at such time or times as Administrative Agent deems advisable; (v) prepare, file and sign any Credit Party’s name on any proof of claim in bankruptcy or other similar document against any Account Debtor or other Person obligated to any Credit Party; and (vi) do all other acts and things which are necessary, in Administrative Agent’s sole discretion, to fulfill any Credit Party’s obligations under this Agreement and the other Loan Documents and to allow Administrative Agent to collect the Accounts or other amounts owed to any Credit Party. In addition to any other provision hereof, Administrative Agent may at any time, after the occurrence and during the continuance of an Event of Default, at Borrowers’ expense, notify Account Debtors (subject to Applicable Law regarding Government Account Debtors) to make payment directly to Administrative Agent of any amounts due or to become due thereunder (and once such notice has been given to an Account Debtor, no Credit Party shall give any contrary instructions to such Account Debtor during the continuance of an Event of Default without Administrative Agent’s prior written consent).
98
9.11 Assistance and Cooperation. Each Credit Party agrees to assist and cooperate with Administrative Agent, and take any action which Administrative Agent may reasonably request or require of such Credit Party, in order to enable Administrative Agent and Lenders to obtain and enjoy the full rights and benefits granted to Administrative Agent and Lenders by the Credit Parties under this Agreement and the other Loan Documents, including specifically, at the cost and expense of Borrowers, the use of their best efforts to assist in obtaining approval of any Governmental Authority for any transaction or action contemplated thereunder which is necessary under any Law or Contractual Obligation, and specifically, without limitation, the preparation, execution and filing with any such Person of any application for consent to assignment of Governmental Authorizations or otherwise.
ARTICLE 10 PARTICIPATIONS AND ASSIGNMENTS
10.1 Participations and Assignments.
(a) The provisions of this Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns permitted hereby, except that neither the Borrower nor any other Credit Party may assign or otherwise transfer any of its rights or obligations hereunder without the prior written consent of Administrative Agent and each Lender, and no Lender may assign or otherwise transfer any of its rights or obligations hereunder except (i) to an assignee in accordance with the provisions of paragraph (b) of this Section, (ii) by way of participation in accordance with the provisions of paragraph (d) of this Section, or (iii) by way of pledge or assignment of a security interest subject to the restrictions of paragraph (e) of this Section (and any other attempted assignment or transfer by any party hereto shall be null and void). Nothing in this Agreement, expressed or implied, shall be construed to confer upon any Person (other than the parties hereto, their respective successors and assigns permitted hereby and Participants to the extent provided in paragraph (d) of this Section) any legal or equitable right, remedy or claim under or by reason of this Agreement.
(b) Any Lender may at any time assign to one or more assignees (any such assignee, an “Assignee”) all or any portion of such Lender’s Pro Rata Share of the Revolving Commitments, the Loans and its other rights and obligations hereunder, with the prior written consent of Administrative Agent, Issuing Bank and, so long as no Default or Event of Default has occurred and is continuing, with the prior written consent of Borrowers (all of which consents shall not be unreasonably withheld, conditioned or delayed and shall not be required for an assignment by a Lender to another Lender or an Affiliate of a Lender). Except as Administrative Agent may otherwise agree, any such assignment shall be in a minimum aggregate amount equal to $5,000,000 or, if less, the remaining Revolving Commitment and Loans held by the assigning Lender. Borrowers and Administrative Agent shall be entitled to continue to deal solely and directly with such assigning Lender in connection with the interests so assigned to an Assignee until Administrative Agent shall have received an Assignment Agreement executed, delivered and fully completed by the applicable parties thereto and a processing fee paid by such applicable parties of $3,500.00. No assignment hereunder shall be permitted if to any Ineligible Assignee. Any attempted assignment not made in accordance with this Section 10.1(b) shall be treated as the sale of a participation under Section 10.1(d).
(c) From and after the date on which the conditions described in Section 10.1(b) above have been met, (i) such Assignee shall be deemed automatically to have become a party hereto and, to the extent that rights and obligations hereunder have been assigned to such Assignee pursuant to such Assignment Agreement, shall have the rights and obligations of a Lender hereunder, and (ii) the assigning Lender, to the extent that rights and obligations hereunder have been assigned by it pursuant to such Assignment Agreement, shall be released from its rights (other than its indemnification rights) and obligations hereunder. Upon the request of the Assignee (and, as applicable, the assigning Lender) pursuant to an effective Assignment Agreement, Borrowers shall execute and deliver to Administrative Agent for delivery to the Assignee (and, as applicable, the assigning Lender) a Revolving Note in the principal amount of the Assignee’s Revolving Commitment (and, as applicable, a Revolving Note in the principal amount of the Revolving Commitment retained by the assigning Lender). Each such Revolving Note shall be dated the effective date of such assignment. Upon receipt by the assigning Lender of such Revolving Note, the assigning Lender shall return to Borrowers any prior Revolving Note held by it.
99
(d) Any Lender may at any time (without any required consent) sell to one or more Persons (other than a Person that is an Ineligible Assignee) participating interests in its respective Revolving Commitment and Loans or other interests hereunder (any such Person, a “Participant”). In the event of a sale by a Lender of a participating interest to a Participant, (a) such Lender’s obligations hereunder shall remain unchanged for all purposes, (b) Administrative Agent and Borrowers shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations hereunder and (c) all amounts payable by Borrowers shall be determined as if such Lender had not sold such participation and shall be paid directly to such Lender. Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrowers, maintain a register on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each Participant’s interest in the Loans or other obligations under the Loan Documents (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any Participant or any information relating to a Participant’s interest in any commitments, loans, letters of credit or its other obligations under any Loan Document) to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan, letter of credit or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. No Participant shall have any direct or indirect voting rights hereunder except with respect to any event described in Section 11.4 expressly requiring the unanimous vote of all Lenders or, as applicable, all affected Lenders. Each Lender agrees to incorporate the requirements of the preceding sentence into each participation agreement which such Lender enters into with any Participant. Each Borrower agrees that if amounts outstanding hereunder are due and payable (as a result of acceleration or otherwise), each Participant shall be deemed to have the right of set-off in respect of its participating interest in amounts owing hereunder to the same extent as if the amount of its participating interest were owing directly to it as a Lender hereunder; provided that such right of set-off shall be subject to the obligation of each Participant to share with Lenders, and Lenders agree to share with each Participant, as provided in Section 11.21. Each Borrower agrees that each Participant shall be entitled to the benefits of Section 2.19 as if it were a Lender (provided that on the date of the participation no Participant shall be entitled to any greater compensation pursuant to Section 2.19 than would have been paid to the participating Lender on such date if no participation had been sold and that each Participant complies with Section 2.19 as if it were an Assignee).
(e) Notwithstanding anything to the contrary set forth herein, any Lender may at any time pledge or assign a security interest in all or any portion of its rights hereunder and applicable Revolving Note to secure obligations of such Lender, including any pledge or assignment to secure obligations to any Federal Reserve Bank (including as collateral security pursuant to Regulation A and any Operating Circular issued by such Federal Reserve Bank), and such Loans and Revolving Note(s) shall be fully transferable as provided therein, and this Section 10.1 shall not apply to any such pledge or assignment of a security interest; provided that no such pledge or assignment of a security interest shall release a Lender from any of its obligations hereunder or substitute any such pledgee or assignee for such Lender as a party hereto.
(f) Administrative Agent will maintain a copy of each Assignment Agreement delivered and accepted by it and register (the “Register”) for the recordation of names and addresses of Lenders, the Pro Rata Share of each Lender and the portion of the Revolving Commitment and the Loans of each Lender and whether such Lender is the original Lender or the Assignee. All records of transfer of a Lender’s interest in the Register shall be conclusive, absent manifest error, as to the ownership of the interests in such Revolving Commitment and the Loans. Administrative Agent shall not incur any liability of any kind with respect to any Lender with respect to the maintenance of the Register or for any failure to ensure that any assignment is made in accordance with the terms hereof. Upon the reasonable written request of Borrower Representative, Administrative Agent will furnish a copy of the Register to Borrower Representative or another Borrower (at the cost, if any, to Borrowers).
100
ARTICLE 11 MISCELLANEOUS
11.1 Financial Advisors. Each Borrower hereby represents that it has dealt with no financial advisors, brokers, underwriters, placement agents, agents or finders in connection with the Loans other than SABR Advisors. Each Borrower shall indemnify and hold Administrative Agent and Lenders harmless from and against any and all claims, liabilities, costs and expenses (including the reasonable fees and disbursements of legal counsel for Administrative Agent and Lenders, including the reasonable charges of internal legal counsel, whether incurred in connection with enforcing this indemnity or defending claims of third parties) of any kind in any way relating to or arising from a claim by any Person that such Person acted on behalf of such Borrower in connection with the transactions contemplated herein.
11.2 Administrative Agent’s Discretion. Whenever pursuant to this Agreement or any other Loan Document, Administrative Agent exercises any right given to it to approve or disapprove, or consent or withhold consent, or any arrangement or term is to be satisfactory to Administrative Agent or is to be in Administrative Agent’s discretion, the decision of Administrative Agent to approve or disapprove, to consent or withhold consent, or to decide whether arrangements or terms are satisfactory or not satisfactory, or acceptable or unacceptable or in Administrative Agent’s discretion shall (except as is otherwise specifically herein provided) be in the sole discretion of Administrative Agent (unless another standard is specified herein, in which event such other standard shall be applied) and shall be final and conclusive.
11.3 Governing Law.
(a) THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HERETO AND THERETO SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO ANY CONFLICTS OF LAWS PRINCIPLES THEREOF THAT WOULD CALL FOR THE APPLICATION OF THE LAWS OF ANY OTHER JURISDICTION.
(b) Each Credit Party irrevocably and unconditionally agrees that it will not commence any action, litigation or proceeding of any kind or description, whether in law or equity, whether in contract or in tort or otherwise, against Administrative Agent or any Lender, of the foregoing in any way relating to this Agreement or any other Loan Document or the transactions relating hereto or thereto, in any forum other than the courts of the State of New York sitting in New York County, and of the United States District Court of the Southern District of New York, and any appellate court from any thereof, and each of the parties hereto irrevocably and unconditionally submits to the jurisdiction of such courts and agrees that all claims in respect of any such action, litigation or proceeding may be heard and determined in such New York State court or, to the fullest extent permitted by Applicable Law, in such federal court. Each of the parties hereto agrees that a final judgment in any such action, litigation or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law. Nothing in this Agreement or in any other Loan Document shall affect any right that Administrative Agent or any other Lender may otherwise have to bring any action or proceeding relating to this Agreement or any other Loan Document against any Credit Party or its properties in the courts of any jurisdiction. Each Credit Party hereby irrevocably waives, to the fullest extent not prohibited by Applicable Law, any objection that it may now or hereafter have to the laying of the venue of any such proceeding brought in such a court and any claim that any such proceeding brought in such a court has been brought in an inconvenient forum.
101
11.4 Modification, Waiver in Writing.
(a) No Deemed Consent. Administrative Agent’s or Lenders’ failure, at any time or times hereafter, to require strict performance by Borrowers or other Credit Parties of any provision of this Agreement shall not waive, affect or diminish any right of Administrative Agent or Lenders thereafter to demand strict compliance and performance therewith. In particular, and not by way of limitation, by accepting payment after the due date of any amount payable under any Loan Document, neither Administrative Agent nor any Lender shall be deemed to have waived any right either to require prompt payment when due of all other amounts due under the Loan Documents, or to declare an Event of Default for failure to effect prompt payment of any such other amount. None of the undertakings, agreements, warranties, covenants and representations of Borrowers and the other Credit Parties contained in this Agreement or any of the other Loan Documents and no Default or Event of Default shall be deemed to have been suspended or waived by Administrative Agent and Lenders unless such suspension or waiver is in writing signed by an officer of Administrative Agent and Required Lenders, and directed to Borrower specifying such suspension or waiver.
(b) Amendments, Consents and Waivers Generally. Except as otherwise expressly provided in this Agreement, (i) any consent or approval required or permitted by this Agreement or in any Loan Document to be given by the Lenders may be given, (ii) any term of this Agreement or of any other Loan Document may be amended (other than agreements hereafter executed solely in respect of the Banking Services Obligations and agreements executed pursuant to Section 5.17), (iii) the performance or observance by the Borrower or any other Credit Party of any terms of this Agreement or any other Loan Document may be waived, and (iv) the continuance of any Default or Event of Default may be waived (either generally or in a particular instance and either retroactively or prospectively) with, but only with, the written consent of the Required Lenders (or Administrative Agent at the written direction of the Required Lenders), and, in the case of an amendment to any Loan Document, the written consent of each Credit Party which is party thereto, provided that no such amendment, modification or waiver or consent shall:
(i) extend or increase the Revolving Commitment of any Lender without the written consent of such Lender;
(ii) extend any date scheduled for the payment of principal or interest without the written consent of each Lender directly affected thereby;
(iii) extend the Revolving Loan Termination Date without the written consent of all Lenders;
(iv) reduce the principal amount of the Loans, the rate of interest thereon (including applicable margins and interest rate floors) or any fees payable hereunder, without the consent of each Lender directly affected thereby (except for any periodic adjustments of interest rates and fees as provided for in this Agreement or any right to waive the Default Rate);
(v) release any Borrower or any Guarantor from its obligations hereunder or under any Guaranty;
102
(vi) release all or substantially all of the Collateral granted hereunder or under any of the Loan Documents (except as otherwise specifically permitted or provided in this Agreement);
(vii) change the payment application waterfall in Section 9.3, the definition of “Required Lenders”, any provision of this Section 11.4 or reduce the aggregate Pro Rata Share required to effect an amendment, modification, waiver or consent, without, in each case, the written consent of all Lenders; or
(viii) provide, or otherwise permit, the subordination of any Loan, or authorize Administrative Agent to subordinate its Lien in all or substantially all of the Collateral to a third party (except as otherwise specifically permitted or provided in this Agreement) without the written consent of each Lender.
(c) Administrative Agent Consent. This Agreement or any Loan Document may be amended or waived pursuant to an agreement in writing entered into by Administrative Agent and the Borrower or other applicable Credit Parties (without the consent of any Lender) (1) to cure a defect or error, (2) to grant a new Lien for the benefit of Administrative Agent and the Lenders or extend an existing Lien over additional property or (3) to make modifications required under Applicable Law that are not materially adverse to the Lenders. No provision of Article 12 or other provision of this Agreement affecting Administrative Agent as such shall be amended, modified or waived without the prior written consent of Administrative Agent. Notwithstanding anything to the contrary herein, no Defaulting Lender shall have any right to approve or disapprove any amendment, waiver or consent hereunder, except that the Revolving Commitment of such Lender may not be increased or extended without the consent of such Defaulting Lender.
(d) Issuing Bank Consent. No amendment, waiver or consent shall, unless in writing and signed by the Issuing Bank in addition to the Lenders otherwise required under this Section 11.4, affect the rights or duties of the Issuing Bank hereunder, any other Loan Document or any Letter of Credit documentation relating to any Letter of Credit issued or to be issued by it.
11.5 Waiver of Trial by Jury.
(a) EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PERSON HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PERSON WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION. ADMINISTRATIVE AGENT AND EACH LENDER IS HEREBY AUTHORIZED TO FILE A COPY OF THIS SECTION 11.5 IN ANY PROCEEDING AS CONCLUSIVE EVIDENCE OF THIS WAIVER BY ANY BORROWER AND ANY OTHER CREDIT PARTY.
11.6 Waiver of Consequential Damages, Etc. To the fullest extent permitted by Applicable Law, each Borrower and each other Credit Party agree not to assert, and hereby waive, in any legal action or other proceeding, any claim against Administrative Agent, any Lender, Issuing Bank or any Lender Affiliate, on any theory of liability, for special, indirect, consequential, special, exemplary or punitive damages (as opposed to direct or actual damages) arising out of, in connection with, or as a result of, this Agreement, any other Loan Document or any agreement or instrument contemplated hereby, the transactions contemplated hereby or thereby, any Loan or Letter of Credit or the use of the proceeds thereof.
103
11.7 Headings/Exhibits. The section headings in this Agreement are included herein for convenience of reference only and shall not constitute a part of this Agreement for any other purpose. The Exhibits attached hereto, are hereby incorporated by reference as a part of this Agreement with the same force and effect as if set forth in the body hereof.
11.8 Severability. Wherever possible, each provision of this Agreement shall be interpreted in such manner as to be effective and valid under Applicable Law, but if any provision of this Agreement shall be prohibited by or invalid under Applicable Law, such provision shall be ineffective to the extent of such prohibition or invalidity, without invalidating the remainder of such provision or the remaining provisions of this Agreement.
11.9 Preferences. To the extent Borrowers make a payment to Administrative Agent or any Lender hereunder, or Administrative Agent or any Lender receives proceeds of any Collateral, which is in whole or part subsequently invalidated, declared to be fraudulent or preferential, set aside or required to be repaid to a trustee, receiver or any other party under any Debtor Relief Law, common law or equitable cause, then, to the extent of such payment or proceeds received, the Indebtedness or part thereof intended to be satisfied shall be revived and continue in full force and effect, as if such payment or proceeds had not been received by Administrative Agent or such Lender.
11.10 Waiver of Notice. Each Borrower and each other Credit Party hereby expressly waives the right to receive any notice from Administrative Agent or any Lender with respect to any matter, except to the extent that this Agreement or any other Loan Document specifically and expressly requires the giving of notice by Administrative Agent or any Lender to any Borrower and except with respect to matters for which Borrowers are not, pursuant to Applicable Laws, permitted to waive the giving of notice.
11.11 Remedies of Borrowers. If a claim or adjudication is made that Administrative Agent or any Lender or any of their respective agents has acted unreasonably or unreasonably delayed acting in any case where by Law or under any Loan Document, Administrative Agent, such Lender or any such agent, as the case may be, has an obligation to act reasonably or promptly, each Borrower and each other Credit Party agrees that neither Administrative Agent, any Lender nor its respective agents shall be liable for any monetary damages, and such Borrower’s or Credit Party’s sole remedy shall be to commence an action seeking injunctive relief or declaratory judgment. Any action or proceeding to determine whether Administrative Agent or any Lender has acted reasonably shall be determined by an action seeking declaratory judgment. Each Borrower and each other Credit Party specifically waives any claim against Administrative Agent, each Lender and its respective agents with respect to actions taken by Administrative Agent, each Lender or its respective agents on any Borrower’s or Credit Party’s behalf.
11.12 Prior Agreements. This Agreement and the other Loan Documents contain the entire agreement of the parties hereto and thereto in respect of the transactions contemplated hereby and thereby, and all prior agreements, understandings and negotiations among or between such parties, whether oral or written, are superseded by the terms of this Agreement and the other Loan Documents.
104
11.13 Offsets, Counterclaims and Defenses. Each Borrower and each other Credit Party hereby waives the right to assert a counterclaim, other than a compulsory counterclaim, in any action or proceeding brought against it by Administrative Agent, any Lender or their respective agents or otherwise offset any obligations to make payments required under the Loan Documents. Any Assignee of Administrative Agent’s or any Lender’s interest in and to the Loan Documents shall take the same free and clear of all offsets, counterclaims or defenses which such Borrower or such other Credit Party may otherwise have against any assignor of such documents, and no such offset, counterclaim or defense shall be interposed or asserted by such Borrower or such other Credit Party in any action or proceeding brought by any such Assignee upon such documents, and any such right to interpose or assert any such offset, counterclaim or defense in any such action or proceeding is hereby expressly waived by such Borrower or such other Credit Party.
11.14 Publicity. Neither any Borrower nor any other Credit Party shall, whether now or in the future issue. any press releases or other public disclosure using the name “CIT Bank, N.A.”, the name of any other Lender or the name of any of their respective Lender Affiliates or referring to this Agreement or the other Loan Documents without at least five (5) Business Days’ prior notice to Administrative Agent (and in the case of a disclosure of a Lender’s name, such Lender) and without the prior written consent of Administrative Agent (and in the case of a disclosure of a Lender’s name, such Lender) unless (and only to the extent that) such Borrower or such other Credit Party is required to do so under Applicable Law and then, in any event, such Borrower or such other Credit Party will consult with Administrative Agent (and in the case of a disclosure of a Lender’s name, such Lender) before issuing such press release or other public disclosure. Each Borrower and each other Credit Party expressly consents to and authorizes the publication by Administrative Agent and Lenders of a summary description of the transaction(s) contemplated by this Agreement in any format (including tombstones, deal listings or similar advertising materials), which may be published in one or more of financial or other industry periodicals, newspapers, reporting services, trade organizations, written promotional materials, web site, or otherwise. In addition, each Borrower or each other Credit Party expressly consents to and authorizes Administrative Agent and Lenders to provide to financial or other industry periodicals, newspapers, reporting services or trade organizations information necessary and customary for inclusion of the transaction(s) in league table measurements, including the aggregate dollar value of the transaction.
11.15 Indemnification; Expenses.
(a) Expenses. Each Borrower and each other Credit Party shall reimburse Administrative Agent (or any Lender, as applicable) upon receipt of notice for all Expenses. Any Expenses due and payable by any Borrower or any other Credit Party hereunder which are not paid within five (5) days after demand shall accrue interest at the Default Rate and may be paid by Administrative Agent, in its sole discretion, pursuant to Section 2.13(b).
(b) Indemnity. Each Borrower and each other Credit Party shall defend, indemnify and hold harmless Administrative Agent, each Lender, each Lender Affiliate, each of their respective directors, officers, partners, members, shareholders, participants, employees, professionals and agents, and each of their respective successors and assigns (each, an “Indemnified Party”), from and against any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, claims, costs, expenses and disbursements of any kind or nature whatsoever (including the fees and disbursements of counsel for an Indemnified Party in connection with any investigative, administrative or judicial proceeding commenced or threatened, court costs and costs of appeal at all appellate levels, investigation and laboratory fees, consultant fees and litigation expenses), that may be imposed on, incurred by, or asserted against any Indemnified Party (collectively, the “Indemnified Liabilities”) arising out of or related to (i) the execution, enforcement, performance, or administration of this Agreement, any of the other Loan Documents, the transactions contemplated hereby; (ii) any breach by any Borrower, any other Credit Party or any Affiliate thereof of their obligations under, or any misrepresentation by any of the foregoing contained in, any Loan Document; (iii) any Environmental Release or the presence, disposal, escape, seepage, leakage, spillage, discharge, emission, release, or threatened release of any Hazardous Materials on, from or affecting any Facility; (iv) any violation of any Laws by Borrower, any other Credit Party or any Affiliate thereof and (v) any other matter arising out of or related to the Revolving Loans, any Credit Party, any Facility or any Collateral; provided, however, that Borrowers shall not have any obligation to any Indemnified Party hereunder to the extent that it is judicially determined by a court of competent jurisdiction in a final, non-appealable judgment that such Indemnified Liabilities are the result of the gross negligence or willful misconduct of such Indemnified Party. Any amounts payable to any Indemnified Party by reason of the application of this Section 11.15 shall be payable on demand and shall bear interest at the Default Rate from the date loss or damage is sustained by any Indemnified Party until paid.
105
11.16 Survival. All obligations, covenants, agreements, representations, warranties, waivers and indemnities made by any Borrower in any Loan Document shall survive the execution and delivery of the Loan Documents, the Closing, the making of the Loans and any termination of this Agreement until all Obligations are fully performed and indefeasibly paid in full in cash. The obligations and provisions of Sections 2.24(i), 2.18, 2.19, 5.13, 5.21, 9.9, 11.1, 11.3, 11.5, 11.6, 11.8, 11.9, 11.11, 11.13, 11.14, 11.15, 11.16, 11.17, 11.20, 11.27, 12.3, 12.6, 12.7 and 12.13 shall survive the termination of this Agreement and the other Loan Documents and any payment, in full or in part, of the Obligations.
11.17 No Usury. If Applicable Law is ever judicially interpreted so as to render usurious any amount called for hereunder or any other Loan Document, or contracted for, charged, taken, reserved or received with respect to the Obligations, or if Administrative Agent’s and Lenders’ exercise of the option to accelerate the maturity of the Loans or any prepayment by any Borrower results in Borrowers having paid any interest in excess of that permitted by Applicable Law, then it is each Borrower’s, Administrative Agent’s and Lenders’ express intent that all excess amounts theretofore collected by Administrative Agent or any Lender shall be credited against the unpaid principal amount of the Obligations (or, if the Obligations have been or would thereby be paid in full, refunded to Borrowers), and the provisions of the Loan Documents immediately be deemed reformed and the amounts thereafter collectible thereunder reduced, without the necessity of the execution of any new document, so as to comply with Applicable Law, but so as to permit the recovery of the fullest amount otherwise called for thereunder. All sums paid or agreed to be paid to Lenders for the use, forbearance or detention of the Loans shall, to the extent permitted by Applicable Law, be amortized, prorated, allocated, and spread throughout the full stated term of the Loans until payment in full so that the rate or amount of interest on account of the Loans does not exceed the maximum lawful rate from time to time in effect and applicable to the Loans for so long as the Loans are outstanding. Notwithstanding anything to the contrary contained in any Loan Document, it is not the intention of Administrative Agent or any Lender to accelerate the maturity of any interest that has not accrued at the time of such acceleration or to collect unearned interest at the time of such acceleration.
11.18 Conflict; Construction of Documents. In the event of any conflict between the provisions of this Agreement and any of the other Loan Documents, the provisions of this Agreement shall control. The parties hereto acknowledge that each is represented by separate counsel in connection with the negotiation and drafting of the Loan Documents and that the Loan Documents shall not be subject to the principle of construing their meaning against the party that drafted them.
11.19 No Third Party Beneficiaries. The Loan Documents are solely for the benefit of Administrative Agent, Lenders and Credit Parties and nothing contained in any Loan Document shall be deemed to confer upon any Person (other than Administrative Agent, Lenders, Credit Parties, Indemnified Parties under Section 11.15 and Indemnified Agent Parties under Section 12.7, their respective successors and assigns permitted hereby and, to the extent expressly contemplated hereby, Affiliates of each of Administrative Agent and Lenders) any right to insist upon or to enforce the performance or observance of any of the obligations contained therein.
106
11.20 Assignment. The Loans, any Notes, the Loan Documents and/or any Lender’s rights, title, obligations and interests therein may be assigned by such Lender and any of its successors and assigns in accordance with the terms and conditions set forth in Article 10. Neither any Borrower nor any other Credit Party may assign its rights, title, interests or obligations hereunder or under any of the other Loan Documents.
11.21 Set-Off. Subject in all events to Section 12.13 hereunder, if an Event of Default shall have occurred and be continuing, each Lender, the Issuing Bank and each of their respective Affiliates is hereby authorized at any time and from time to time, after obtaining the prior written consent of Administrative Agent, to the fullest extent permitted by Applicable Law, to set off and apply any and all deposits (general or special, time or demand, provisional or final, in whatever currency) at any time held and other obligations (in whatever currency) at any time owing by such Lender, the Issuing Bank or any such Affiliate to or for the credit or the account of any Borrower or any other Credit Party against any and all of the obligations of such Borrower or such other Credit Party now or hereafter existing hereunder or any other Loan Document to such Lender or the Issuing Bank, irrespective of whether or not such Lender or the Issuing Bank shall have made any demand hereunder or any other Loan Document and although such obligations of such Borrower or such other Credit Party may be contingent or unmatured or are owed to a branch or office or Affiliate of such Lender or the Issuing Bank different from the branch, office or Affiliate holding such deposit or obligated on such indebtedness; provided, that if any Defaulting Lender shall exercise any such right of setoff, (x) all amounts so set off shall be paid over immediately to Administrative Agent for further application in accordance with the provisions of Section 12.15 and, pending such payment, shall be segregated by such Defaulting Lender from its other funds and deemed held in trust for the benefit of Administrative Agent and the Lenders, and (y) the Defaulting Lender shall provide promptly to Administrative Agent a statement describing in reasonable detail the Obligations owing to such Defaulting Lender as to which it exercised such right of setoff. The rights of each Lender, the Issuing Bank and their respective Affiliates under this Section 11.21 are in addition to other rights and remedies (including other rights of setoff) that such Lender, the Issuing Bank or their respective Affiliates may have. Each Lender and each Issuing Bank agrees to notify the Borrower Representative and Administrative Agent promptly after any such setoff and application, provided that the failure to give such notice shall not affect the validity of such setoff and application.
11.22 Confidentiality.
(a) Each Credit Party acknowledges that (i) from time to time financial advisory, investment banking and other services may be offered or provided to it (in connection with this Agreement or otherwise) by each Lender or by one or more affiliates of such Lender and (ii) information delivered to each Lender by the Credit Parties may be provided to each such affiliate, it being understood that any such affiliate receiving such information shall be bound by the provisions of Section 11.22(b) as if it were a Lender under this Agreement.
(b) Each of Administrative Agent and each Lender severally (and not jointly) agrees to maintain the confidentiality of the Information (as defined below), except that Information may be disclosed (i) to its Affiliates and approved funds and to its and its Affiliates’ and approved funds’ respective partners, directors, officers, employees, agents, consultants, counsel, accountants, advisors, controlling persons, managed funds, financing sources, actual and prospective investors, and other representatives (collectively, the “Representatives”) (it being understood that the Persons to whom such disclosure is made will be informed of the confidential nature of such Information and instructed to keep such Information confidential), or to Rating Agencies, (ii) to the extent requested or required by any regulatory authority purporting to have jurisdiction over it (including any self-regulatory authority, such as the National Association of Insurance Commissioners), including any regulatory filings, (iii) to the extent required by Applicable Laws or by any subpoena or similar judicial or legal process, (iv) to any other party to the Loan Documents, (v) in connection with the exercise of any remedies hereunder or under any other Loan Document or any action or Proceeding relating to this Agreement or any other Loan Document or the enforcement of rights hereunder or thereunder, (vi) to (A) any actual or prospective assignee of a Lender, assignee or successor of Administrative Agent, or pledgee of or Participant in any of its rights or obligations under this Agreement, or (B) any actual or prospective counterparty to any swap or derivative transaction or Banking Services transactions relating to any Borrower or any other Credit Party and its obligations, or (C) any counterparty to any Subordination Agreement to the extent required by the provisions of such Subordination Agreement, provided that such parties agree to be bound by confidentiality provisions substantially similar to those hereunder, and to the Representatives of the foregoing parties in clauses (A) and (B) and (C), (vii) with the consent of the Borrower Representative, (viii) to the extent such Information (A) becomes publicly available other than as a result of a breach of this Section or (B) becomes available to Administrative Agent, any Lender, or any of their respective Representatives on a non-confidential basis from a source other than the Credit Parties or (ix) for purposes of establishing a due diligence defense. The terms of this provision shall supersede and replace any previous agreement regarding the confidentiality of the Information and shall terminate upon the termination of the Revolving Commitments and the payment of the Obligations.
107
For purposes of this Section, (i) “Information” means, all information received from any Credit Party or any of its Subsidiaries relating to any Credit Party or any of its Subsidiaries or any of their respective businesses, other than any such information that is available to or in the possession of Administrative Agent, any other Lender or their Representatives on a non-confidential basis prior to disclosure by any Credit Party or any of its Subsidiaries and (ii) “Rating Agencies” means Moody’s, S&P, Fitch Ratings Ltd., or any other nationally recognized rating agency or service. Any Person required to maintain the confidentiality of Information as provided in this Section shall be considered to have complied with its obligation to do so if such Person has exercised the same degree of care to maintain the confidentiality of such Information as such Person would accord to its own confidential information. Notwithstanding anything herein to the contrary, “Information” shall not include, and Administrative Agent and each other Lender may disclose without limitation of any kind, any information with respect to the “tax treatment” and “tax structure” (in each case, within the meaning of Treasury Regulation Section 1.6011-4) of the transactions contemplated hereby and all materials of any kind (including opinions or other tax analyses) that are provided to Administrative Agent or such other Lender relating to such tax treatment and tax structure, provided that with respect to any document or similar item that in either case contains information concerning the tax treatment or tax structure of the transaction as well as other information, this sentence shall only apply to such portions of the document or similar item that relate to the tax treatment or tax structure of the Loans and transactions contemplated hereby.
(c) No Borrower or Affiliate thereof will issue any press releases or other public disclosure using the name of Administrative Agent or its Affiliates or any other Lender or its Affiliates or referring to this Agreement or the other Loan Documents without at least three (3) Business Days’ prior notice to Administrative Agent or such Lender and without the prior written consent of Administrative Agent or such Lender unless (and only to the extent that) such Borrower or Affiliate is required to do so under law and then, in any event, such Borrower or Affiliate will consult with such Lender before issuing such press release or other public disclosure. The Borrowers hereby consent to the publication by Administrative Agent or any Lender of a tombstone or similar advertising material relating to the financing transactions contemplated by this Agreement (such material may, without limitation, include a description of the Credit Parties and the use of any identifying trademark or other marks of a Credit Party). Each Lender reserves the right to provide to industry trade organizations information necessary and customary for inclusion in league table measurements.
108
11.23 Patriot Act Compliance. Each Lender that is subject to the Patriot Act (as defined below) and Administrative Agent (for itself and not on behalf of any Lender) hereby notifies each Credit Party that pursuant to the requirements of the Patriot Act, it is required to obtain, verify and record information that identifies each Credit Party, which information includes the name, address and tax identification number of each Credit Party and other information that will allow such Lender or Administrative Agent, as applicable, to identify each Credit Party in accordance with the Patriot Act. The Borrowers shall, promptly following a request by Administrative Agent or any Lender, provide all documentation and other information that Administrative Agent or such Lender requests in order to comply with its ongoing obligations under applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Act.
11.24 Electronic Execution of Assignments and Other Documents. The words “execution,” “signed,” “signature,” and words of like import in this Agreement and the other Loan Documents including any Assignment Agreement or in any amendment, waiver, modification or consent relating hereto shall be deemed to include electronic signatures or electronic records, each of which shall be of the same legal effect, validity or enforceability as a manually executed signature or the use of a paper-based recordkeeping system, as the case may be, to the extent and as provided for in any Applicable Laws, including the Federal Electronic Signatures in Global and National Commerce Act, the New York State Electronic Signatures and Records Act, or any other similar state Laws based on the Uniform Electronic Transactions Act.
11.25 Counterparts. This Agreement may be executed in any number of counterparts, each of which when so executed and delivered shall be an original, but all of which shall together constitute one and the same instrument. Delivery of an executed counterpart of a signature page to this Agreement by telecopier, facsimile machine, portable document format (“PDF”) or other electronic means shall be as effective as delivery of a manually executed counterpart of this Agreement. The effectiveness of any such documents and signatures shall, subject to Applicable Laws, have the same force and effect as manually signed originals and shall be binding on Borrowers, Administrative Agent and Lenders. Administrative Agent may also require that any such documents and signatures be confirmed by a manually signed original thereof; provided, however, that the failure to request or deliver the same shall not limit the effectiveness of any facsimile document or signature. No party may raise the use of a telecopier, facsimile machine, PDF or other electronic means, or the fact that any signature was transmitted through the use of a telecopier, facsimile machine, PDF or other electronic means, as a defense to the enforcement of this Agreement.
11.26 Borrower Representative.
(a) Each Credit Party hereby irrevocably appoints and constitutes Borrower Representative as its agent to (i) request and receive the proceeds of advances in respect of the Loans and request Letters of Credit (and to otherwise act on behalf of such Credit Party pursuant to this Agreement and the other Loan Documents) from Administrative Agent and Lenders in the name or on behalf of each such Credit Party, (ii) receive statements of account and all other notices from Administrative Agent or any Lender, as applicable, with respect to the Obligations or otherwise under or in connection with this Agreement and the other Loan Documents, (iii) execute and deliver Borrowing Base Reports, Compliance Certificates and all other notices, certificates and documents to be executed and/or delivered by any Credit Party hereunder or the other Loan Documents; and (iv) otherwise act on behalf of such Credit Party pursuant to this Agreement and the other Loan Documents.
109
(b) The authorizations contained in this Section 11.26 are coupled with an interest and shall be irrevocable, and Administrative Agent and Lenders may rely on any notice, request, information supplied by Borrower Representative, every document executed by Borrower Representative, every agreement made by Borrower Representative or other action taken by Borrower Representative in respect of any Borrower or any other Credit Party as if the same were supplied, made or taken by such Borrower or such other Credit Party. Without limiting the generality of the foregoing, the failure of one or more Borrowers or any other Credit Parties to join in the execution of any writing in connection herewith shall not relieve any Borrower or other Credit Party from obligations in respect of such writing. No purported termination of the appointment of Borrower Representative as agent shall be effective without the prior written consent of Administrative Agent.
11.27 Joint and Several.
(a) Each Borrower shall be jointly and severally liable for all of the Obligations of Borrowers hereunder, regardless of which of Borrowers actually receives the proceeds or other benefits of the Loans, Letters of Credit or other extensions of credit hereunder or the manner in which Borrowers, Administrative Agent or the Lenders account therefor in their respective books and records.
(b) Each Borrower is accepting joint and several liability hereunder and under the other Loan Documents in consideration of the financial accommodations to be provided by Administrative Agent and Lenders hereunder, for the mutual benefit, directly and indirectly, of each Borrower and in consideration of the undertakings of the other Borrowers to accept joint and several liability for the Obligations.
(c) To the extent that Applicable Law otherwise would render the full amount of the joint and several obligations of any Borrower hereunder and under the other Loan Documents invalid or unenforceable, such Person’s obligations hereunder and under the other Loan Documents shall be limited to the maximum amount which does not result in such invalidity or unenforceability; provided, however, that each Borrower’s obligations hereunder and under the other Loan Documents shall be presumptively valid and enforceable to their fullest extent in accordance with the terms hereof or thereof, as if this Section 11.27 were not a part of this Agreement.
(d) To the extent that any Borrower shall make a payment under this Section 11.27 of all or any of the Obligations (as used in this clause (d), a “Joint Liability Payment”) which, taking into account all other Joint Liability Payments then previously or concurrently made by any other Borrower, exceeds the amount that such Borrower would otherwise have paid if each Borrower had paid the aggregate Obligations satisfied by such Joint Liability Payments in the same proportion that such Person’s “Allocable Amount” (as defined below) (as determined immediately prior to such Joint Liability Payments) bore to the aggregate Allocable Amounts of each of Borrowers as determined immediately prior to the making of such Joint Liability Payments, then, following indefeasible payment in full in cash of the Obligations (other than contingent obligations that survive the repayment in full of the Loans and the termination of the Loan Documents and for which no claim has been asserted) and termination of the Revolving Commitments, such Borrower shall be entitled to receive contribution and indemnification payments from, and be reimbursed by, each other Borrower for the amount of such excess, pro rata based upon their respective Allocable Amounts in effect immediately prior to such Joint Liability Payments. As of any date of determination, the “Allocable Amount” of any Borrower shall be equal to the maximum amount of the claim which could then be recovered from such Borrower under this Section 11.27 without rendering such claim voidable or avoidable under §548 of the Bankruptcy Code or under any applicable state Uniform Fraudulent Transfer Act, Uniform Fraudulent Conveyance Act or similar statute or common law.
110
(e) Each Borrower assumes responsibility for keeping itself informed of the financial condition of each other Borrower, and any and all endorsers and/or guarantors of any instrument or document evidencing all or any part of such other Borrower’s Obligations, and of all other circumstances bearing upon the risk of nonpayment by such other Borrower of their Obligations and each Borrower agrees that neither Administrative Agent nor any Lender has any duty to advise such Borrower of information known to Administrative Agent or any Lender regarding such condition or any such circumstances or to undertake any investigation not a part of its regular business routine. If Administrative Agent or any Lender, in its sole discretion, undertakes at any time or from time to time to provide any such information to a Borrower, Administrative Agent or such Lender shall not be under any obligation to update any such information or to provide any such information to such Borrower or any other Person on any subsequent occasion.
(f) Administrative Agent and Lenders are hereby authorized, without notice or demand and without affecting the liability of a Borrower hereunder, to, at any time and from time to time, (A) renew, extend, accelerate or otherwise change the time for payment of, or other terms relating to, Obligations incurred by any Borrower or any other Credit Party, otherwise modify, amend or change the terms of any promissory note or other agreement, document or instrument now or hereafter executed by any Borrower or any other Credit Party and delivered to Administrative Agent or any Lender; (B) accept partial payments on an Obligation incurred by any Borrower; (C) take and hold security or collateral for the payment of an Obligation incurred by any Borrower hereunder or for the payment of any guaranties of an Obligation incurred by any Borrower or other liabilities of any Borrower and exchange, enforce, waive and release any such security or collateral; (D) apply such security or collateral and direct the order or manner of sale thereof as Administrative Agent may determine in its sole discretion; and (E) settle, release, compromise, collect or otherwise liquidate an Obligation incurred by any Borrower and any security or collateral therefor in any manner, without affecting or impairing the obligations of any other Borrower. Administrative Agent shall have the exclusive right to determine the time and manner of application of any payments or credits, whether received from a Borrower or any other source, and such determination shall be binding on each Borrower absent manifest error. In accordance with the terms of this Agreement, all such payments and credits may be applied, reversed and reapplied, in whole or in part, to any of an Obligation incurred by any Borrower as Administrative Agent shall determine in their sole discretion without affecting the validity or enforceability of the Obligations of the other Borrowers.
(g) Each Borrower hereby agrees that, except as hereinafter provided, its obligations hereunder shall be unconditional, irrespective of (and each Borrower) hereby waives notice of) (A) the absence of any attempt to collect an Obligation incurred by a Borrower from any Borrower or any guarantor or other action to enforce the same; (B) the waiver or consent by Administrative Agent and Lenders with respect to any provision of any instrument evidencing an Obligation incurred by any other Borrower, or any part thereof, or any other agreement heretofore, now or hereafter executed by any other Borrower and delivered to Administrative Agent or any Lender; (C) failure by Administrative Agent to take any steps to perfect and maintain its security interest in, or to preserve its rights to, any security or collateral for an Obligation incurred by any Borrower; (D) the institution of any proceeding under the Bankruptcy Code, or any similar proceeding, by or against any Borrower or any other Credit Party, Administrative Agent’s or any Lender’s election in any such proceeding of the application of §1111(b)(2) of the Bankruptcy Code; (E) any borrowing or grant of a security interest by any Borrower as debtor-in- possession under §364 of the Bankruptcy Code; (F) the disallowance, under §502 of the Bankruptcy Code, of all or any portion of Administrative Agent’s or any Lender’s claim(s) for repayment of any of an Obligation incurred by any Borrower; or (G) any other circumstance which might otherwise constitute a legal or equitable discharge or defense of a guarantor.
(h) This Section 11.27 is intended only to define the relative rights of Borrowers and nothing set forth in this Section 11.27 is intended to or shall impair the obligations of Borrowers, jointly and severally, to pay any amounts as and when the same shall become due and payable in accordance with the terms of this Agreement or any other Loan Documents. Nothing contained in this Section 11.27 shall limit the liability of any Borrower to pay the Loans made directly or indirectly to such Borrower and accrued interest, fees and Expenses with respect thereto for which such Borrower shall be primarily liable.
111
(i) No payment made by or for the account of any Borrower, including (A) a payment made by such Borrower on behalf of an Obligation of another Borrower or (B) a payment made by any other person under any guaranty, shall entitle such Borrower, by subrogation or otherwise, to any payment from such other Borrower or from or out of property of such other Borrower and such Borrower shall not exercise any right or remedy against such other Borrower or any property of such other Borrower by reason of any performance of such Borrower of its joint and several obligations hereunder until the Obligations (other than contingent obligations that survive the repayment in full of the Loans and the termination of the Loan Documents and for which no claim has been asserted) are paid in full.
(j) Each Borrower hereby agrees that after the occurrence and during the continuance of any Default or Event of Default, such Borrower will not demand, sue for or otherwise attempt to collect any indebtedness of any other Borrower owing to such Borrower until the Obligations (other than contingent obligations that survive the repayment in full of the Loans and the termination of the Loan Documents and for which no claim has been asserted) are paid in full. If, notwithstanding the foregoing sentence, such Borrower shall collect, enforce or receive any amounts in respect of such indebtedness, such amounts shall be collected, enforced and received by such Borrower as trustee for Administrative Agent, and such Borrower shall deliver any such amounts to Administrative Agent for application to the Obligations in accordance with Section 9.3.
(k) Any notice given by Borrower Representative hereunder shall constitute and be deemed to be notice given by all Borrowers, jointly and severally. Notice given by Administrative Agent or any Lender to Borrower Representative hereunder or pursuant to any other Loan Documents in accordance with the terms hereof or thereof shall constitute notice to all Borrowers. The knowledge of any Borrower shall be imputed to all Borrowers and any consent by Borrower Representative or any Borrower shall constitute the consent of and shall bind all Borrowers.
(l) The parties hereto acknowledge that the rights of contribution and indemnification hereunder shall constitute assets of each Borrower to which such contribution and indemnification is owing. The rights of any indemnifying Borrower against the other Borrowers under this Section shall be exercisable upon the full and indefeasible payment of the Obligations (other than contingent obligations that survive the repayment in full of the Loans and the termination of the Loan Documents and for which no claim has been asserted) and the termination of the Revolving Facility.
11.28 Release of Claims. Each Borrower and each other Credit Party does hereby (i) waive any claim in tort, contract or otherwise which such Borrower or such other Credit Party may have against Administrative Agent, any Lender, any of their respective Affiliates or their respective officers, directors, agents, or employees (collectively, “Lender Agents”) which may arise out of the relationship between any such Borrower or such other Credit Party and any such Person prior to the Closing Date; and (ii) absolutely and unconditionally releases and discharges Administrative Agent, each Lender, each of their respective Affiliates and the Lender Agents from any and all claims, causes of action, losses, damages or expenses which may arise out of any relationship between it and Administrative Agent, such Lender, any such Affiliate or the Lender Agents which such Borrower or such other Credit Party may have as of the Closing Date. Each Borrower and each other Credit Party acknowledges that it makes this waiver and release knowingly, voluntarily and only after considering the ramifications of this waiver and release with its legal counsel.
112
11.29 Acting Through Agents. In exercising any rights under the Loan Documents or taking any actions provided for therein, Administrative Agent may act through its employees, agents or independent contractors as authorized by Administrative Agent. Each Borrower shall authorize its accounting firm and/or service bureaus to provide Administrative Agent with such information as is requested by Administrative Agent in accordance with this Agreement. Each Borrower authorizes Administrative Agent to contact directly any such accounting firm and/or service bureaus to obtain such information.
ARTICLE 12 AGENCY PROVISIONS; SETTLEMENT
Administrative Agent, Lenders, Borrowers and each other Credit Party agree that, except for the rights expressly granted to Borrowers under Section 12.9, no Borrower or other Credit Party shall be a party to the agreements contained in this Article 12. Without limitation of the foregoing, Administrative Agent, Lenders, Borrowers and each other Credit Party agree that in no event shall Borrowers or other Credit Parties be required to seek comment from, deliver notices to or otherwise deal with any Lender other than Administrative Agent (except as otherwise specifically stated in this Agreement). No Borrower or other Credit Party shall have any benefits or rights as a third party beneficiary of any term or condition contained in this Article 12.
12.1 Appointment and Authorization.
(a) Generally. Each Lender and Issuing Bank hereby irrevocably (subject to Section 12.9) appoints, designates and authorizes Administrative Agent to act on its behalf as Administrative Agent hereunder and under the other Loan Documents and authorized Administrative Agent to take such action on its behalf under the provisions of this Agreement and each other Loan Document and to exercise such powers and perform such duties as are expressly delegated to it by the terms of this Agreement or any other Loan Document, together with such powers as are reasonably incidental thereto. Notwithstanding any provision to the contrary contained elsewhere in this Agreement or in any other Loan Document, Administrative Agent shall not have any duty or responsibility except those expressly set forth herein, nor shall Administrative Agent have or be deemed to have any fiduciary relationship with any Lender or Participant, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this Agreement or any other Loan Document or otherwise exist against Administrative Agent. The duties of Administrative Agent shall be mechanical and administrative in nature. Without limiting the generality of the foregoing sentence, the use of the term “agent” herein and in other Loan Documents with reference to Administrative Agent is not intended to connote any fiduciary or other implied (or express) obligations arising under agency doctrine of any Applicable Law. Instead, such term is used merely as a matter of market custom, and is intended to create or reflect only an administrative relationship between independent contracting parties.
(b) Specific Authorizations. Except as otherwise specified in this Agreement, Administrative Agent shall have the right to exercise its sole and absolute discretion to act or not to act under the Loan Documents. Without limiting the generality of the foregoing, Administrative Agent shall have the sole and exclusive right and authority to:
A. act as the disbursing and collecting agent for the Lenders with respect to all payments and collections arising in connection with this Agreement and the Loan Documents relating to the Collateral securing the Loans;
B. make any subsequent advances to the Borrower for the purposes described in this Agreement;
113
C. approve or disapprove any form of real property lease agreement to which the Borrowers or other Credit Parties are subject;
D. execute and deliver each Collateral Document and accept delivery of each such agreement delivered by the Credit Parties;
E. act as collateral agent for the Lenders for purposes of the perfection of all security interests and Liens created by such agreements and all other purposes stated therein;
F. take such action as is necessary or desirable to maintain the perfection and priority of the security interest and Liens created or purported to be created by the Loan Documents;
G. release or assign (without recourse, representation or warranty, other than representations as to title and as to no encumbrances by Administrative Agent) any or all Collateral upon payment and satisfaction in full of the Loans; and
H. enter into any so-called “pre-negotiation agreement” with Borrower or any other Credit Party (provided that as a condition precedent to such authority, all Lenders have been given a reasonable opportunity to (i) comment on the proposed form of pre-negotiation agreement and (ii) discuss such comments with Administrative Agent).
12.2 Delegation of Duties. Administrative Agent may execute any of its duties hereunder or any other Loan Document by or through agents, employees or attorneys-in-fact and shall be entitled to advice of legal counsel and other consultants, independent public accountants or experts concerning all matters pertaining to such duties. Administrative Agent shall not be responsible for the negligence or misconduct of any agent or attorney-in-fact that it selects in the absence of gross negligence or willful misconduct as finally determined in a non-appealable judicial proceeding.
12.3 Exculpation of Administrative Agent. None of Administrative Agent nor any of its directors, officers, employees, Affiliates or agents shall (a) be liable to any Lender or any other Person for any action taken or omitted to be taken by any of them under or in connection with this Agreement or any other Loan Document or the transactions contemplated hereby (except to the extent resulting from its own gross negligence or willful misconduct in connection with its duties expressly set forth herein as determined by a final, nonappealable judgment by a court of competent jurisdiction), or (b) be responsible in any manner to any Lender or Participant for any recital, statement, representation or warranty made by any Borrower, any Credit Party or any of their Affiliates, or any officer thereof, contained in this Agreement or in any other Loan Document, or in any certificate, report, statement or other document referred to or provided for in, or received by Administrative Agent under or in connection with, this Agreement or any other Loan Document, or the validity, effectiveness, genuineness, enforceability or sufficiency of this Agreement or any other Loan Document (or the creation, perfection or priority of any Lien or security interest therein), or for any failure of any Borrower, any Credit Party or any other party to any Loan Document to perform its obligations and liabilities hereunder or thereunder, or be responsible for or have any duty to ascertain or verify the satisfaction of any conditions specified in this Agreement or any other Loan Document. Administrative Agent shall not be under any obligation to any Lender to ascertain or to inquire as to (i) the performance or observance of any of the terms, provisions or conditions of this Agreement or any of the other Loan Documents, (ii) the financial condition of any Credit Party, (iii) the contents of any certificate, report or other document delivered hereunder or any other Loan Document or in connection herewith or therewith, (iv) the existence or possible existence of any Default or Event of Default, or (v) the satisfaction of any condition set forth in Section 3 of this Agreement or elsewhere herein, other than to confirm receipt of items expressly required to be delivered to Administrative Agent.
114
12.4 Reliance by Administrative Agent. Administrative Agent shall be entitled to rely, and shall be fully protected in relying, upon any writing, communication, signature, resolution, representation, notice, consent, certificate, electronic mail message, affidavit, letter, telegram, facsimile, telex or telephone message, statement or other document or conversation believed by it to be genuine and correct and to have been signed, sent or made by the proper Person or Persons, and upon advice and statements of legal counsel (including legal counsel to Borrowers), independent accountants and other experts selected by Administrative Agent. Administrative Agent shall be fully justified in failing or refusing to take any action hereunder or any other Loan Document unless it shall first receive such advice or concurrence of the Required Lenders or such other number or percentage of Lenders as shall be required elsewhere in this Agreement as it deems appropriate and, if it so requests, confirmation from Lenders of their obligation to indemnify Administrative Agent against any and all liability and expense which may be incurred by it by reason of taking or continuing to take any such action. Administrative Agent shall in all cases be fully protected in acting, or in refraining from acting, hereunder or any other Loan Document in accordance with a request or consent of the Required Lenders or such other number or percentage of Lenders as shall be required elsewhere in this Agreement and such request and any action taken or failure to act pursuant thereto shall be binding upon each Lender. For purposes of determining compliance with the conditions specified in Section 3.2, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless Administrative Agent shall have received written notice from such Lender prior to the Closing Date specifying its objection thereto.
12.5 Notice of Default. Administrative Agent shall not be deemed to have knowledge or notice of the occurrence of any Default or Event of Default except with respect to defaults in the payment of principal, interest and fees required to be paid to Administrative Agent for the account of Lenders, unless Administrative Agent shall have received written notice from a Lender or a Borrower referring to this Agreement, describing such Default or Event of Default and stating that such notice is a “notice of default”. Administrative Agent will notify Lenders of its receipt of any such notice. Administrative Agent shall take such action with respect to such Default or Event of Default as may be requested by the Required Lenders in accordance with Section 9.5; provided that unless and until Administrative Agent has received any such request, Administrative Agent may (but shall not be obligated to) take such action, or refrain from taking such action, with respect to such Default or Event of Default as it shall deem advisable or in the best interest of Lenders.
12.6 Credit Decision. Each Lender acknowledges that Administrative Agent has not made any representation or warranty to it, and that no act by Administrative Agent hereafter taken, including any consent and acceptance of any assignment or review of the affairs of Borrowers or the other Credit Parties, shall be deemed to constitute any representation or warranty by Administrative Agent to any Lender as to any matter, including whether Administrative Agent has disclosed material information in its possession. Each Lender represents to Administrative Agent that it has, independently and without reliance upon Administrative Agent and based on such documents and information as it has deemed appropriate, made its own appraisal of and investigation into the business, prospects, operations, property, financial and other condition and creditworthiness of Borrowers and the other Credit Parties, and made its own decision to enter into this Agreement and to extend credit to Borrowers hereunder. Each Lender also represents that it will, independently and without reliance upon Administrative Agent and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit analysis, appraisals and decisions in taking or not taking action hereunder and the other Loan Documents, and to make such investigations as it deems necessary to inform itself as to the business, prospects, operations, property, financial and other condition and creditworthiness of Borrowers and the other Credit Parties. Except for notices, reports and other documents expressly herein required to be furnished to Lenders by Administrative Agent, Administrative Agent shall not have any duty or responsibility to provide any Lender with any credit or other information concerning the business, prospects, operations, property, financial or other condition or creditworthiness of Borrowers and the other Credit Parties which may come into the possession of Administrative Agent. Each Lender hereby acknowledges and agrees that it is not entitled to rely upon any notice, report or other document furnished by Administrative Agent from time to time in connection with this Agreement and the other Loan Documents and the transactions contemplated hereby, and hereby release any and all claims it may have against Administrative Agent or any agent thereof as a result of any reliance by any Lender in any such notice, report, document or other information furnished by Administrative Agent.
115
12.7 Indemnification. Whether or not the transactions contemplated hereby are consummated, each Lender shall indemnify, defend and hold harmless upon demand Administrative Agent and its directors, officers, employees, Affiliates and agents (each an “Indemnified Agent Party”) (to the extent not reimbursed by or on behalf of any Borrower and without limiting the obligation of any Borrower to do so), according to its applicable Pro Rata Share, from and against any and all Indemnified Liabilities (as defined in Section 11.15), provided, that no Lender shall be liable for any payment to any such Person of any portion of the Indemnified Liabilities to the extent determined by a final, non- appealable judgment by a court of competent jurisdiction to have resulted from the applicable Indemnified Agent Party’s own gross negligence or willful misconduct. No action taken in accordance with the directions of Required Lenders shall be deemed to constitute gross negligence or willful misconduct for purposes of this Section 12.7. Without limitation of the foregoing, each Lender shall reimburse Administrative Agent upon demand for its ratable share of any costs or out-of-pocket expenses (including all Expenses) incurred by Administrative Agent in connection with the preparation, execution, delivery, administration, modification, amendment or enforcement (whether through negotiations, legal proceedings or otherwise) of, or legal advice in respect of rights or responsibilities under, this Agreement, any other Loan Document, or any document contemplated by or referred to herein, to the extent that Administrative Agent is not reimbursed for such expenses by or on behalf of Borrowers. If any indemnity furnished to Administrative Agent for any purpose shall, in the reasonable, good faith opinion of Administrative Agent, be insufficient or become impaired, Administrative Agent may call for additional reasonable indemnity and cease, or not commence, to do the acts indemnified against even if so directed by Required Lenders until such additional reasonable indemnity is furnished. The undertaking in this Section 12.7 shall survive repayment of the Loans and other liabilities, cancellation of any promissory notes, any foreclosure under, or modification, release or discharge of, any or all of the Loan Documents, termination of this Agreement and the resignation or replacement of Administrative Agent.
12.8 Administrative Agent in Individual Capacity. CIT and its Affiliates may make loans to, issue letters of credit for the account of, accept deposits from, acquire Equity Interests in and generally engage in any kind of banking, trust, financial advisory, underwriting or other business with any Credit Party and its Affiliates as though CIT were not Administrative Agent hereunder and without notice to or consent of any Lender; provided, however, if CIT acquires Equity Interests in any Credit Party or any Affiliate of any Credit Party and such Equity Interests are not publicly traded, CIT will provide written notice to the Lenders. Each Lender acknowledges that, pursuant to such activities, CIT or its Affiliates may receive information regarding a Credit Party or its Affiliates (including information that may be subject to confidentiality obligations in favor of such Credit Party or such Affiliates) and acknowledge that Administrative Agent shall be under no obligation to provide such information to them. With respect to its portion of the Loans, CIT and its Affiliates shall have the same rights and powers hereunder as any other Lender and may exercise the same as though CIT were not Administrative Agent, and the terms “Lender” and “Lenders” include CIT and its Affiliates, to the extent applicable, in their individual capacities.
116
12.9 Successor Administrative Agent. Administrative Agent may resign as Administrative Agent upon thirty (30) days’ notice to Lenders. If Administrative Agent resigns hereunder, Required Lenders shall, with (so long as no Default or Event of Default exists) the consent of Borrowers (which shall not be unreasonably withheld, conditioned or delayed), appoint from among Lenders a successor agent for Lenders. Notwithstanding the immediately foregoing sentence, if no successor agent is appointed prior to the effective date of the resignation of Administrative Agent, Administrative Agent may appoint, after consulting with Lenders and Borrowers, a successor agent from among Lenders. Upon the acceptance of its appointment as successor agent hereunder, such successor agent shall succeed to and become vested with all the rights, powers and duties of the retiring Administrative Agent and the term “Administrative Agent” shall mean such successor agent, and the retiring Administrative Agent’s appointment, powers and duties as Administrative Agent shall be terminated. After any retiring Administrative Agent’s resignation hereunder as Administrative Agent, the provisions of this Article 12 shall inure to its benefit as to any actions taken or omitted to be taken by it while it was Administrative Agent hereunder. If no successor agent has accepted appointment as Administrative Agent by the date which is thirty (30) days following a retiring Administrative Agent’s notice of resignation, the retiring Administrative Agent’s resignation shall nevertheless thereupon become effective and Lenders shall perform all of the duties of Administrative Agent hereunder until such time, if any, as Required Lenders appoint a successor agent as provided for above.
12.10 Collateral Matters; Restriction on Lenders. (a) Each Lender authorizes and directs Administrative Agent to enter into the other Loan Documents for the benefit of Administrative Agent and Lenders. Each Lender hereby agrees that, except as otherwise set forth herein, any action taken by Administrative Agent or Required Lenders in accordance with the provisions of this Agreement or the other Loan Documents, and the exercise by Administrative Agent or Required Lenders of the powers set forth herein or therein, together with such other powers as are reasonably incidental thereto, shall be authorized and binding upon all Lenders. Administrative Agent is hereby authorized on behalf of all Lenders, without the necessity of any notice to or further consent from any Lender, to take any action with respect to any Collateral and any of the other collateral pursuant to Loan Documents that may be necessary to perfect and maintain perfected the Liens upon the Collateral and the other collateral pursuant to the other Loan Documents. Lenders irrevocably authorize Administrative Agent, at its option and in its discretion, (i) to release any Lien granted to or held by Administrative Agent hereunder and any other Loan Document (x) upon the termination of this Agreement in accordance with Section 2.21; (y) constituting property sold or to be sold or disposed of, financed or refinanced, as part of or in connection with any sale, disposition, financing or refinancing which is expressly permitted by this Agreement at any time; or (z) subject to Section 11.4, if approved, authorized or ratified in writing by Required Lenders; or (ii) to subordinate its interest in any Collateral to any holder of a Lien on such Collateral which is expressly permitted by this Agreement. Upon request by Administrative Agent at any time, Lenders will promptly confirm in writing Administrative Agent’s authority to release, or subordinate its interest in, particular types or items of Collateral pursuant to this Section 12.10. Administrative Agent and each Lender hereby appoint each other Lender as agent for the purpose of perfecting Administrative Agent’s security interest in assets and Collateral (and other collateral pursuant to other Loan Documents) which, in accordance with the Uniform Commercial Code in any applicable jurisdiction, can be perfected by possession or control. Should any Lender (other than Administrative Agent) obtain possession or control of any such assets or Collateral, such Lender shall promptly notify Administrative Agent thereof in writing, and, promptly upon Administrative Agent’s written request therefor, shall deliver such assets or Collateral to Administrative Agent or in accordance with Administrative Agent’s instructions or transfer control to Administrative Agent in accordance with Administrative Agent’s instructions. Each Lender agrees that, except as otherwise expressly provided herein, it will not have any right individually to enforce or seek to enforce this Agreement or any other Loan Document or to realize upon any Collateral for the liabilities unless instructed in writing to do so by Administrative Agent, it being understood and agreed that such rights and remedies may be exercised only by Administrative Agent.
117
(b) Each Lender agrees that it shall not, without the express written consent of Administrative Agent, and shall, upon the written request of Administrative Agent (to the extent it is lawfully entitled to do so), set off against the liabilities, any amounts owing by such Lender to a Credit Party or any deposit accounts of any Credit Party now or hereafter maintained with such Lender. Each of the Lenders further agrees that it shall not, unless specifically requested to do so in writing by Administrative Agent, take or cause to be taken, any action, including the a commencement of any legal or equitable proceedings to foreclose any loan or otherwise enforce any security interest in any of the Collateral or to enforce all or any part of this Agreement or the other Loan Documents. All enforcement actions hereunder and the other Loan Documents against the Credit Parties or any third party with respect to the liabilities or the Collateral may only be taken by Administrative Agent (at the direction of the Required Lenders or as otherwise permitted in this Agreement) or by its agents at the direction of Administrative Agent.
(c) If any Lender, directly or through an Affiliate or branch office thereof, obtains any payment of any Obligation of any Credit Party (whether voluntary, involuntary or through the exercise of any right of setoff or the receipt of any Collateral or “proceeds” (as defined under the applicable UCC) of Collateral) other than from Administrative Agent in accordance with this Agreement and such payment exceeds the amount such Lender would have been entitled to receive if all payments had gone to, and been distributed by, Administrative Agent in accordance with the provisions of the Loan Documents, such Lender shall purchase for cash from other Lenders such participations in their Obligations as necessary for such Lender to share such excess payment with such Lenders to ensure such payment is applied as though it had been received by Administrative Agent and applied in accordance with this Agreement (or, if such application would then be at the discretion of the Borrowers, applied to repay the Obligations in accordance herewith); provided, however, that (a) if such payment is rescinded or otherwise recovered from such Lender in whole or in part, such purchase shall be rescinded and the purchase price therefor shall be returned to such Lender without interest and (b) such Lender shall, to the fullest extent permitted by Applicable Law, be able to exercise all its rights of payment (including the right of setoff) with respect to such participation as fully as if such Lender were the direct creditor of the applicable Credit Party in the amount of such participation.
12.11 Administrative Agent May File Proofs of Claim. In case of the pendency of any Insolvency Proceeding relative to any Borrower or any other Credit Party, Administrative Agent (irrespective of whether the principal of the Loans shall then be due and payable as herein expressed or by declaration or otherwise and irrespective of whether Administrative Agent shall have made any demand on a Borrower or other Credit Party) shall be entitled and empowered, by intervention in such proceeding or otherwise:
(a) to file and prove a claim for the whole amount of the principal and interest owing and unpaid in respect of the Loans, and all other liabilities that are owing and unpaid and to file such other documents as may be necessary or advisable in order to have the claims of Lenders and Administrative Agent (including any claim for the reasonable compensation, expenses, disbursements and advances of Lenders and Administrative Agent and their respective agents and attorneys and all other amounts due Lenders and Administrative Agent hereunder) allowed in such judicial proceedings; and
(b) to collect and receive any monies or other property payable or deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such judicial proceeding is hereby authorized by each Lender to make such payments to Administrative Agent and, if Administrative Agent shall consent to the making of such payments directly to Lenders, to pay to Administrative Agent any amount due for the reasonable compensation, expenses, disbursements and advances of Administrative Agent and its agents and attorneys, and any other amounts due Administrative Agent hereunder.
118
Nothing contained herein shall be deemed to authorize Administrative Agent to authorize or consent to or accept or adopt on behalf of any Lender any plan of reorganization, arrangement, affecting the liabilities or to authorize Administrative Agent to vote in respect of the claim of any Lender in any such proceeding.
12.12 Return of Payments.
(a) If Administrative Agent pays an amount to a Lender hereunder in the belief or expectation that a related payment has been or will be received by Administrative Agent from any Borrower and such related payment is not received by Administrative Agent, or if Administrative Agent overpays an amount to a Lender hereunder or otherwise in error, then Administrative Agent shall be entitled to recover such amount from such Lender on demand without setoff, counterclaim or deduction of any kind, together with interest accruing on a daily basis at the Federal Funds Effective Rate (it being understood that Administrative Agent’s determination of such rate shall be binding and conclusive absent manifest error). If Administrative Agent determines at any time that any amount received by Administrative Agent hereunder must be returned to Borrowers or paid to any other Person pursuant to any insolvency Law or otherwise, then, notwithstanding any other term or condition of this Agreement or any other Loan Document, Administrative Agent will not be required to distribute any portion thereof to any Lender. In addition, each Lender shall repay to Administrative Agent on demand any portion of such amount that Administrative Agent has distributed to such Lender, together with interest at such rate, if any, as Administrative Agent is required to pay to Borrowers or such other Person, without setoff, counterclaim or deduction of any kind.
(b) Unless Administrative Agent shall have received notice from a Lender prior to the proposed date of the making of any Loan that such Lender will not make available to Administrative Agent such Lender’s share of such Loan, Administrative Agent may assume that such Lender has made such share available on such date in accordance with Section 2.3(a) and may, in reliance upon such assumption, make available to the Borrowers a corresponding amount. If a Lender has not in fact made its share of the applicable Loan available to Administrative Agent, then the applicable Lender agrees to pay to Administrative Agent forthwith on demand such corresponding amount with interest thereon, for each day from and including the date such amount is made available to the applicable Borrower to but excluding the date of payment to Administrative Agent, at the greater of the Federal Funds Effective Rate (it being understood that Administrative Agent’s determination of such rate shall be binding and conclusive absent manifest error) and a rate determined by Administrative Agent in accordance with banking industry rules on interbank compensation. The obligations of each Lender hereunder are in addition to any obligation of Borrowers to make any repayment to Lender (including those provided in Section 2.3(a)).
119
12.13 Sharing of Payments by Lenders. If any Lender shall, by exercising any right of setoff or counterclaim or otherwise, obtain payment in respect of any principal of or interest on any of its Loans or other obligations hereunder resulting in such Lender receiving payment of a proportion of the aggregate amount of its Loans and accrued interest thereon or other such obligations greater than its Pro Rata Share thereof as provided herein, then the Lender receiving such greater proportion shall (a) notify Administrative Agent of such fact, and (b) purchase (for cash at face value) participations in the Loans and such other obligations of the other Lenders, or make such other adjustments as shall be equitable, so that the benefit of all such payments shall be shared by the Lenders ratably in accordance with the aggregate amount of principal of and accrued interest on their respective Loans and other amounts owing them; provided that:
(a) if any such participations are purchased and all or any portion of the payment giving rise thereto is recovered, such participations shall be rescinded and the purchase price restored to the extent of such recovery, without interest; and
(b) the provisions of this Section 12.13 shall not be construed to apply to (x) any payment made by the Borrowers pursuant to and in accordance with the express terms of this Agreement (including the application of funds arising from the existence of a Defaulting Lender), or (y) any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Loans or participations in Reimbursement Obligations to any Assignee or Participant.
Each Credit Party consents to the foregoing and agrees, to the extent it may effectively do so under Applicable Law, that any Lender acquiring a participation pursuant to the foregoing arrangements may exercise against each Borrower and each other Credit Party rights of setoff and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of each Borrower and each other Credit Party in the amount of such participation.
12.14 Settlements; Payments. The Outstanding Amount may fluctuate from day to day through Administrative Agent’s disbursement of funds to, and receipt of funds from, Borrowers. In order to minimize the frequency of transfers of funds between Administrative Agent and each Lender, repayments of Loans may, at the election of Administrative Agent, be settled according to the procedures set forth in this Section 12.14. Notwithstanding the procedures set forth in this Section 12.14, each Lender’s obligation to fund its portion of any advances made by Administrative Agent to Borrowers will commence on the date such advances are made by Administrative Agent. Such payments will be made by such Lender without set-off, counterclaim or reduction of any kind.
(a) Each Settlement Date Administrative Agent will advise each Lender by 1:00 p.m. (Eastern time) on a Business Day by telephone or written notice in accordance with this Agreement of the amount of each such Lender’s Pro Rata Share of the Outstanding Amount. If payments are necessary to adjust the amount of such Lender’s share of the Outstanding Amount to such Lender’s Pro Rata Share of the Outstanding Amount, the party from which such payment is due will pay the other party, in same day funds, by wire transfer to the other’s account, not later than 1:00 p.m. (Eastern time) on the Business Day immediately following the Settlement Date (provided that if Administrative Agent gives such notice at or prior to 1:00 p.m. (Eastern time) on the Settlement Date, such funding shall be made on the Settlement Date).
(b) On the first Business Day of each month (each, an “Interest Settlement Date”), Administrative Agent will advise each Lender by written notice in accordance with this Agreement of the amount of interest and fees charged to and collected from Borrowers for the preceding month in respect of the Loans. Provided that such Lender is not then a Defaulting Lender, Administrative Agent will pay to such Lender, by wire transfer to such Lender’s account (as specified by such Lender in accordance with this Agreement) such Lender’s Pro Rata Share of such interest and fees not later than the next Business Day following the Interest Settlement Date.
12.15 Defaulting Lender. If any Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Lender is a Defaulting Lender:
(a) such Defaulting Lender’s Revolving Commitment and outstanding Revolving Loans shall be excluded for purposes of calculating the fee payable to Revolving Lenders in respect of Section 2.14(b), and such Defaulting Lender shall not be entitled to receive any fee pursuant to Section 2.14(b) with respect to such Defaulting Lender’s Revolving Commitment or Revolving Loans (in each case not including any fee in connection with any portion of such Defaulting Lenders Revolving Commitment that has been reallocated to non-Defaulting Lenders pursuant to Section 12.15(d) hereof).
120
(b) the Revolving Commitments and Loans of such Defaulting Lender shall not be included in determining whether all Lenders or the Required Lenders have taken or may take any action hereunder (including any consent to any amendment or waiver pursuant to Section 11.4).
(c) in the event a Defaulting Lender has defaulted on its obligation to fund any Revolving Loan, or purchase any participation pursuant to Section 2.24(e) hereof, until such time as the Default Excess with respect to such Defaulting Lender has been reduced to zero, any prepayments or repayments on account of the Revolving Loans or participations purchased pursuant to Section 2.24(e), in each case to the extent they would be otherwise be payable to such Defaulting Lender, shall be applied first, to the payment of any amounts owing by such Defaulting Lender to Administrative Agent hereunder; second, to the payment on a pro rata basis of any amounts owing by such Defaulting Lender to the Issuing Bank or Letter of Credit Guarantor hereunder; third, to Cash Collateralize the Issuing Bank’s (or the Letter of Credit Guarantor’s, as the case may be) Fronting Exposure with respect to such Defaulting Lender; fourth, as the Borrowers may request (so long as no Default or Event of Default exists), to the funding of any Loan in respect of which such Defaulting Lender has failed to fund its portion thereof as required by this Agreement, as determined by Administrative Agent; fifth, if so determined by Administrative Agent and the Borrowers, to be held in a deposit account and released pro rata in order to (x) satisfy such Defaulting Lender’s potential future funding obligations with respect to Loans under this Agreement and (y) Cash Collateralize the Issuing Bank’s (or the Letter of Credit Guarantor’s, as the case may be) future Fronting Exposure with respect to such Defaulting Lender with respect to future Letters of Credit issued under this Agreement; sixth, to the payment of any amounts owing to the Lenders, the Issuing Bank or the Letter of Credit Guarantor as a result of any judgment of a court of competent jurisdiction obtained by any Lender, the Issuing Bank or the Letter of Credit Guarantor against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; seventh, so long as no Default or Event of Default exists, to the payment of any amounts owing to the Borrowers as a result of any judgment of a court of competent jurisdiction obtained by the Borrowers against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; and eighth, to such Defaulting Lender or as otherwise directed by a court of competent jurisdiction; provided, that, if (x) such payment is a payment of the principal amount of any Loans or Letter of Credit Liabilities in respect of which such Defaulting Lender has not fully funded its appropriate share and (y) such Loans or Letter of Credit Liabilities were made at a time when the conditions set forth in Section 3.2 were satisfied or waived, such payment shall be applied solely to pay the Loans of, and Letter of Credit Liabilities owed to, all non-Defaulting Lenders on a pro rata basis prior to being applied to the payment of any Loans of, or Letter of Credit Liabilities owed to, such Defaulting Lender. Any payments, prepayments or other amounts paid or payable to a Defaulting Lender that are applied (or held) to pay amounts owed by a Defaulting Lender or to post Cash Collateral pursuant to this Section 12.15(c) shall be deemed paid to and redirected by such Defaulting Lender, and each Lender irrevocably consents hereto.
(d) If any Letter of Credit Liabilities are outstanding at the time a Lender becomes a Defaulting Lender then:
(i) so long as no Default or Event of Default then exists, all or any part of such Letter of Credit Liabilities shall be reallocated among the non-Defaulting Revolving Lenders in accordance with their respective Pro Rata Shares of the total Revolving Commitments (calculated without regard to such Defaulting Lender’s Revolving Commitments), provided that no Revolving Lender’s Revolving Exposure shall exceed its Revolving Commitment;
121
(ii) if the reallocation described in paragraph (i) above cannot, or can only partially, be effected, the Borrowers shall within one (1) Business Day following notice by Administrative Agent, Cash Collateralize such Defaulting Lender’s Pro Rata Share of Letter of Credit Liabilities (after giving effect to any partial reallocation pursuant to paragraph (i) above) in accordance with the procedures set forth in Section 2.24(i) and for so long as any such Letter of Credit Obligations are outstanding;
(iii) if the Borrowers Cash Collateralize any portion of such Defaulting Lender’s Pro Rata Share of Letter of Credit Obligations pursuant to this Section 12.15(d), the Borrowers shall not be required to pay any fees to such Defaulting Lender pursuant to Section 2.14(c) with respect to the portion of such Defaulting Lender’s Pro Rata Share of Letter of Credit Obligations which have been Cash Collateralized (and the Defaulting Lender shall not be entitled to receive any such fees);
(iv) if the Defaulting Lender’s Pro Rata Share of Letter of Credit Obligations are reallocated pursuant to this Section 12.15(d), then the letter of credit fees payable to the non- Defaulting Lenders pursuant to Section 2.14(c) shall be adjusted accordingly; and
(v) if any Defaulting Lender’s Pro Rata Share of Letter of Credit Liabilities is not Cash Collateralized or reallocated pursuant to this Section 12.15(d), then without prejudice to any rights or remedies of the applicable Letter of Credit Guarantor or Issuing Bank hereunder, all letter of credit fees payable under Section 2.14(c) with respect to such Defaulting Lender’s Pro Rata Share of Letter of Credit Liabilities shall be payable to the Issuing Bank or if applicable, the Letter of Credit Guarantor.
(e) So long as any Lender is a Defaulting Lender, no Issuing Bank or Letter of Credit Guarantor shall be required to issue, extend or increase any Letter of Credit or Letter of Credit Guaranty, in each case unless it is reasonably satisfied that the related exposure will be 100% covered by the Revolving Commitments of the non-Defaulting Lenders and/or Cash Collateral will be provided by the Borrowers in accordance with Section 2.24(i), and participating interests in any such newly issued, extended or increased Letter of Credit or Letter of Credit Guaranty shall be allocated among non- Defaulting Lenders in a manner consistent with Section 12.15(d)(i) (and Defaulting Lenders shall not participate therein).
(f) No reallocation permitted pursuant to Section 12.15(d) shall constitute a waiver or release of any claim of any party hereunder against a Defaulting Lender arising from that Lender having become a Defaulting Lender, including any claim of a non-Defaulting Lender as a result of such non-Defaulting Lender’s increased exposure following such reallocation.
(g) In the event that Administrative Agent, the Issuing Bank and the Letter of Credit Guarantor each agrees in writing that a Defaulting Lender has adequately remedied all matters which caused such Lender to become a Defaulting Lender, then the Pro Rata Shares of the Letter of Credit Obligations of the Revolving Lenders shall be readjusted to reflect the inclusion of such Lender’s Revolving Commitment and on such date such Lender shall purchase at par such of the Revolving Loans of the other Lenders or participations in the Revolving Loans as Administrative Agent shall determine may be necessary in order for such Lender to hold such Revolving Loans or participations in accordance with its Pro Rata Share; provided, that no adjustments will be made retroactively with respect to fees accrued or payments made by or on behalf of the Borrowers while that Lender was a Defaulting Lender; provided, further, that except to the extent otherwise expressly agreed by the affected parties, no change hereunder from Defaulting Lender to Lender will constitute a waiver or release of any claim of any party hereunder arising from that Lender having been a Defaulting Lender.
122
(h) The rights and remedies with respect to a Defaulting Lender under this Section 12.15 are in addition to any other rights and remedies which the Borrowers, Administrative Agent, the Issuing Bank or the Letter of Credit Guarantor, as applicable, may have against such Defaulting Lender.
12.16 Certain ERISA Matters.
(a) Each Lender (x) represents and warrants, as of the date such Person became a Lender party hereto, to, and (y) covenants, from the date such Person became a Lender party hereto to the date such Person ceases being a Lender party hereto, for the benefit of, Administrative Agent and its Affiliates, and not, for the avoidance of doubt, to or for the benefit of the Borrowers or any other Credit Party, that at least one of the following is and will be true:
(i) Such Lender is not using “plan assets” (within the meaning of 29 CFR § 2510.3-101, as modified by Section 3(42) of ERISA) of one or more Benefit Plans in connection with the Loans, the Letters of Credit or the Commitments,
(ii) The transaction exemption set forth in one or more PTEs, such as PTE 84-14 (a class exemption for certain transactions determined by independent qualified professional asset managers), PTE 95-60 (a class exemption for certain transactions involving insurance company general accounts), PTE 90-1 (a class exemption for certain transactions involving insurance company pooled separate accounts), PTE 91-38 (a class exemption for certain transactions involving bank collective investment funds) or PTE 96-23 (a class exemption for certain transactions determined by in-house asset managers), is applicable with respect to such Lender’s entrance into, participation in, administration of and performance of the Loans, the Letters of Credit, the Revolving Commitments and this Agreement,
(iii) (A) such Lender is an investment fund managed by a “Qualified Professional Asset Manager” (within the meaning of Part VI of PTE 84-14), (B) such Qualified Professional Asset Manager made the investment decision on behalf of such Lender to enter into, participate in, administer and perform the Loans, the Letters of Credit, the Revolving Commitments and this Agreement, (C) the entrance into, participation in, administration of and performance of the Loans, the Letters of Credit, the Revolving Commitments and this Agreement satisfies the requirements of sub-sections (b) through (g) of Part I of PTE 84-14 and (D) to the best knowledge of such Lender, the requirements of subsection (a) of Part I of PTE 84-14 are satisfied with respect to such Lender’s entrance into, participation in, administration of and performance of the Loans, the Letters of Credit, the Revolving Commitments and this Agreement, or
(iv) Such other representation, warranty and covenant as may be agreed in writing between Administrative Agent, in its sole discretion, and such Lender.
(b) In addition, unless sub-clause (i) in the immediately preceding clause (a) is true with respect to a Lender or such Lender has not provided another representation, warranty and covenant as provided in sub-clause (iv) in the immediately preceding clause (a), such Lender further (x) represents and warrants, as of the date such Person became a Lender party hereto, to, and (y) covenants, from the date such Person became a Lender party hereto to the date such Person ceases being a Lender party hereto, for the benefit of, Administrative Agent and its Affiliates, and not, for the avoidance of doubt, to or for the benefit of the Borrowers or any other Credit Party, that Administrative Agent is not a fiduciary with respect to the assets of such Lender involved in such Lender’s entrance into, participation in, administration of and performance of the Loans, the Letters of Credit, the Revolving Commitments and this Agreement (including in connection with the reservation or exercise of any rights by Administrative Agent under this Agreement, any Loan Document or any documents related hereto o thereto).
123
12.17 Acknowledgement and Consent to Bail-In of EEA Financial Institutions. Notwithstanding anything to the contrary in any Loan Document or in any other agreement, arrangement or understanding among any such parties, each party hereto acknowledges that any liability of any EEA Financial Institution arising under any Loan Document, to the extent such liability is unsecured, may be subject to the Write-Down and Conversion Powers and agrees and consents to, and acknowledges and agrees to be bound by:
(a) the application of any Write-Down and Conversion Powers by an EEA Resolution Authority to any such liabilities arising hereunder which may be payable to it by any party hereto that is an EEA Financial Institution; and
(b) the effects of any Bail-In Action on any such liability, including, if applicable:
(i) a reduction in full or in part or cancellation of any such liability;
(ii) a conversion of all, or a portion of, such liability into shares or other instruments of ownership in such EEA Financial Institution, its parent undertaking, or a bridge institution that may be issued to it or otherwise conferred on it, and that such shares or other instruments of ownership will be accepted by it in lieu of any rights with respect to any such liability under this Agreement or any other Loan Document; or
the variation of the terms of such liability in connection with the exercise of the write-down and conversion powers of any EEA Resolution Authority.
[Remainder of Page Intentionally Left Blank]
124
IN WITNESS WHEREOF, the parties hereto have caused this Credit Agreement to be duly executed by their duly authorized representatives, all as of the day and year first above written.
BORROWERS: | ||
PHM LOGISTICS CORPORATION, a Delaware corporation | ||
CENTRAL OXYGEN, INC., an Indiana corporation RIVERSIDE MEDICAL, INC., a Tennessee corporation |
||
COOLEY MEDICAL EQUIPMENT, INCORPORATED, a Kentucky corporation ACADIA MEDICAL SUPPLY, INC., a Maine corporation |
||
RESOURCE MEDICAL, INC., a South Carolina corporation | ||
CARE MEDICAL PARTNERS LLC, a Georgia limited liability company | ||
BLACK BEAR MEDICAL GROUP, INC., a Maine corporation | ||
WEST HOME HEALTH CARE, INC., a Virginia corporation | ||
LEGACY OXYGEN AND HOME CARE EQUIPMENT, LLC, a Kentucky limited liability company | ||
PATIENT-AIDS, INC., a Kentucky corporation RESOURCE MEDICAL GROUP, LLC, a South Carolina limited liability company |
||
RESOURCE MEDICAL GROUP OF CHARLESTON, LLC, a South Carolina limited liability company | ||
CARE MEDICAL OF ATHENS, INC., a Georgia corporation | ||
CARE MEDICAL ATLANTA, LLC, a Georgia limited liability company | ||
CARE MEDICAL OF AUGUSTA, LLC, a Georgia limited liability company | ||
CARE MEDICAL OF GAINESVILLE, LLC, a Georgia limited liability company | ||
CARE MEDICAL SAVANNAH, LLC, a Georgia limited liability company | ||
BLACK BEAR MEDICAL, INC., a Maine corporation COASTAL MED-TECH CORP., a Maine corporation BLACK BEAR MEDICAL NH, INC., a New Hampshire corporation |
||
HEALTH TECHNOLOGY RESOURCES, L.L.C., an Illinois limited Iiability company | ||
By: | /s/ Gregory Crawford | |
Name: Gregory Crawford | ||
Title: President |
[Signature Page to Credit Agreement]
GUARANTOR: | ||
PHM SERVICES INC., a Delaware corporation | ||
By: | [ILLEGIBLE] | |
Title: President |
[Signature Page to Credit Agreement]
ADMINISTRATIVE AGENT: | ||
CIT BANK, N.A. | ||
By: | /s/ Thomas T. Gatsios | |
Name: Thomas T. Gatsios | ||
Title: Director |
[Signature Page to Credit Agreement]
LENDER: | ||
CIT BANK, N.A. | ||
By: | /s/ Thomas T. Gatsios | |
Name: Thomas T. Gatsios | ||
Title: Director |
(Signature Page to Credit Agreement}
ANNEX A
Revolving Commitments
Name of Lender | Commitment of such Lender | Pro Rata Share | ||||||
CIT BANK, N.A. | $ | 20,000,000.00 | 100 | % | ||||
TOTAL | $ | 20,000,000.00 | 100 | % |
DISCLOSURE SCHEDULES
TO THE
CREDIT AGREEMENT
dated as of
September 18, 2020
by and among
PHM LOGISTICS CORPORATION
and
CERTAIN OTHER SUBSIDIARIES OF PHM SERVICES INC.
as Borrowers,
PHM SERVICES INC.
as Parent,
CIT BANK, N.A.,
for itself as a Lender and as Administrative Agent for all Lenders,
and
THE OTHER FINANCIAL INSTITUTIONS PARTY THERETO AS LENDERS
Capitalized terms used in the disclosure schedules (the “Disclosure Schedules”) not otherwise defined herein shall have the respective meanings ascribed to such terms in the above-captioned Credit Agreement (the “Agreement”).
Section numbers in the Disclosure Schedules correspond to the section numbers in the Agreement and the information in the Disclosure Schedules constitute (a) exceptions to particular representations, warranties, or covenants of Borrower in the Agreement or (b) descriptions or lists of assets, liabilities, and other items referred to in particular representations, warranties, or covenants of Seller in the Agreement, and in each case when read together with the particular representation, warranty, or covenant, shall constitute and be deemed a part of such representation, warranty, or covenant. Each item disclosed in any section of the Disclosure Schedules in a manner that makes its relevance to one or more other Disclosure Schedules readily apparent on the face of such disclosure, by use of cross-references or otherwise, will be deemed to have been appropriately included in each such other Disclosure Schedule.
In no event shall inclusion of any item in the Disclosure Schedules constitute or be deemed to constitute an admission to any third party concerning such item by Borrower, or an agreement by Borrower that a violation, right of termination, default, liability or other obligation of any kind exists with respect to any item. Unless otherwise indicated herein or in the Agreement, the Disclosure Schedules shall not be construed as or constitute an admission, agreement or acknowledgment by Borrower that any disclosure is material to the condition of Borrower. In addition, matters reflected in the Disclosure Schedules are not necessarily limited to matters required by the Agreement to be reflected in the Disclosure Schedules. Such additional matters are set forth for informational purposes only and do not necessarily include other matters of a similar nature.
Unless otherwise indicated herein or in the Agreement, the specification of any dollar amount or the inclusion of any specific item or matter in the Disclosure Schedules are not intended to imply that such amount, or higher or lower amounts, or the item or matter so included or other items or matters, are or are not material or that such item or matter, or other items or matters, are or are not in the Ordinary Course of Business. The headings in the Disclosure Schedules are for convenience of reference only and shall not affect the disclosures contained in the Disclosure Schedules.
Schedule 1
Borrowers and Guarantors
Schedule
1.1(a)
Leases
Property Leases
Company |
Start
date |
End Date |
Current
Rent Amt. |
|||||
Central Oxygen | 11/1/2018 | 10/31/2023 | 5,100.00 | |||||
Black Bear | 5/1/2016 | 4/30/2021 | 14,315.07 | |||||
Riverside | 11/1/2018 | 10/31/2021 | 1,700.00 | |||||
Riverside | 5/1/2019 | 2/28/2022 | 1,875.00 | |||||
Cooley | 2/1/2019 | 1/31/2022 | 1,500.00 | |||||
Cooley | 12/1/2018 | 11/30/2023 | 1,500.00 | |||||
Cooley | 10/1/2019 | 9/30/2024 | 4,105.63 | |||||
Cooley | 10/1/2019 | 9/30/2024 | 2,406.79 | |||||
Cooley | 10/1/2019 | 9/30/2024 | 4,462.58 | |||||
Resource Medical | 8/1/2010 | 1/31/2023 | 6,600.00 | |||||
Care Medical | 9/1/2016 | 8/31/2021 | 9,493.34 | |||||
Care Medical | 8/1/2018 | 7/31/2021 | 1,532.13 | |||||
West home | 6/1/2018 | 6/30/2021 | 3,607.06 | |||||
Legacy | 10/1/2019 | 9/30/2025 | 1,800.00 | |||||
Legacy | 7/1/2019 | 6/30/2026 | 7,762.50 | |||||
Patient Aids | 10/1/2015 | 9/30/2022 | 9,654.54 | |||||
Patient Aids | 10/1/2015 | 9/30/2022 | 14,062.50 | |||||
Patient Aids | 10/1/2015 | 9/30/2022 | 7,500.00 | |||||
Patient Aids | 12/1/2016 | 11/30/2021 | 3,863.84 | |||||
Patient Aids | 11/1/2018 | 12/31/2021 | 1,166.67 | |||||
Patient Aids | 10/1/2015 | 9/30/2022 | 11,868.08 | |||||
Legacy | 1/1/2020 | 12/31/2021 | 1,900.00 | |||||
Default | 7/1/2019 | 6/30/2021 | 900.00 | |||||
Acadia | 12/1/2019 | 11/30/2022 | 3,000.00 | |||||
Acadia | 12/1/2019 | 8/1/2021 | 1,500.00 | |||||
Black Bear | 12/1/2018 | 11/30/2020 | 1,600.00 | |||||
Black Bear | 4/1/2020 | 3/30/2023 | 1,400.00 | |||||
Resource Medical Group of Charleston | 4/1/2020 | 3/31/2022 | 1,950.00 | |||||
Resource Medical Group of Charleston | 7/1/2020 | 6/30/2024 | 3,200.00 | |||||
Patient Aids | 10/1/2019 | 10/31/2020 | 411.25 | |||||
Care Medical | 5/1/2020 | 4/30/2023 | 2,864.58 | |||||
Care Medical | 6/1/2020 | 5/31/2022 | 1,450.00 | |||||
Cooley | 10/1/2019 | 8/31/2022 | 10,414.39 | |||||
Patient Aids | 7/1/2020 | 7/31/2022 | 1,700.00 | |||||
Care Medical | 9/1/2020 | 8/31/2022 | 300.00 |
Equipment Leases
Lessor |
Lease No. |
Lease
Term in Months |
||
De Lage Landen | DLL 10232474 | 12 | ||
DEXT | DEXT | 24 | ||
Invacare | Invacare 100-10202182 | 12 | ||
Invacare | Invacare 100-10215259 | 12 | ||
Invacare | Invacare 100-10227760 | 12 | ||
Invacare | Invacare 100-10240958 | 12 | ||
Invacare | Invacare 100-10225686 | 24 | ||
Invacare | Invacare 100-10207720 | 15 | ||
Invacare | Invacare 100-10202986 | 9 | ||
Invacare | Invacare 100-10191663 | 24 | ||
Invacare | Invacare 100-10174603 | 24 | ||
Invacare | Invacare 100-10244960 | 13 | ||
Invacare | Invacare 100-10181154 | 24 | ||
Invacare | Invacare 100-10240207 | 24 | ||
Invacare | Invacare 100-10217361 | 24 | ||
Invacare Credit Corp |
INV # 100-10134863 | 36 | ||
Invacare Credit Corp |
100-10187669 | 24 | ||
LCA | LCA 209808 | 36 | ||
Navitas | Navitas #40504976 | 48 | ||
Navitas | Navitas #40517620 | 12 | ||
Navitas | Navitas #40532842 | 12 | ||
Navitas | Pride Navitas lease 40545683 | 12 | ||
Navitas | Navitas 40586106 | 12 | ||
Navitas | Navitas 40586469 | 36 | ||
Navitas | Navitas 40614241 | 12 | ||
Navitas | Navitas 40614241 | 12 | ||
Navitas | Navitas 40675111 | 12 | ||
Phillips Medical Capital |
Respironics # 101-10195741 | 48 | ||
Phillips Medical Capital |
Phillips Medical lease 101-10220611 | 12 | ||
Phillips Medical Capital |
Phillips Medical lease 101-10236392 | 12 | ||
Phillips Medical Capital |
Phillips Medical lease 101-10240159 | 12 | ||
Phillips Medical Capital |
Phillips Medical lease 101-10248669 | 12 | ||
Phillips Medical Capital |
Phillips Medical lease 501-50074250 | 12 | ||
Phillips Medical Capital |
Phillips Medical lease 501-50085839 | 12 | ||
Phillips Medical Capital |
Phillips Medical lease 501-50096601 | 12 | ||
Phillips Medical Capital | Phillips Medical lease 501-50108191 | 12 | ||
Phillips Medical Capital | Phillips Medical lease 501-50124406 | 12 | ||
Phillips Medical Capital | Phillips Medical lease 501-50138458 | 12 | ||
Priority | Drive - Priority Capital: 3.29.19 | 24 | ||
Priority | Priority Capital Drive | 12 | ||
ResMed | De lage landen 100-1022142 | 12 | ||
TCF | 008-4005752-340 | 48 | ||
TCF | Resmed Lease - Astral Schedule #339 | 48 | ||
TCF | TCF 008-0624859-331 | 12 | ||
TCF | TCF Resmed 008-0624859-333 | 12 | ||
TCF | TCF (ResMed) 008-4010565-326 | 36 | ||
TCF | TCF (ResMed) 008-4010565-340 | 12 | ||
TCF | TCF (ResMed) 008-4010565-342 | 12 | ||
TCF | TCF (ResMed) 008-4010565-343 | 12 | ||
TCF | TCF (ResMed) 008-4010565-344 | 15 | ||
US Bank | 2381660 | 24 | ||
VGM | VGM 004-0624859-314 | 36 | ||
VGM | Respironics #004-0624859-315 | 36 | ||
VGM | Respironics #004-0624859-316 | 36 | ||
VGM | Respironics #004-0624859-317 | 36 | ||
VGM | Respironics #004-0624859-320 | 36 | ||
VGM | VGM-004-0624859-321 | 36 | ||
VGM | VGM 004-0624859-323 | 36 | ||
VGM | VGM 004-0624859-324 | 36 | ||
VGM | VGM 004-0624859-329 Respironics | 12 | ||
VGM | VGM 004-0624859-330 | 12 | ||
VGM | VGM 0624859-332 Respironics | 12 | ||
VGM | VGM 0624859-335 | 12 | ||
VGM | VGM 0624859-334 | 12 | ||
VGM | VGM 004-0624859-336 | 12 | ||
VGM | VGM 004-0624859-337 | 12 | ||
VGM | VGM 004-4009507-305 | 24 | ||
VGM | VGM 004-4009507-306 | 24 | ||
VGM | VGM 004-0624859-338 | 12 | ||
VGM | VGM 004-0624859-339 | 12 | ||
VGM | VGM 004-0624859-340 | 12 | ||
VGM | VGM 004-0624859-500 | 15 | ||
Wells Fargo | WF 301-0183563-003 | 48 | ||
Wells Fargo | Wells Fargo #007-301-0183563-007 | 36 |
Wells Fargo | Wells Fargo #008 | 48 | ||
Wells Fargo | Wells Fargo #010 | 48 | ||
Wells Fargo | Wells Fargo 301-0183563-016 | 48 | ||
Wells Fargo | Wells Fargo 301-0183563-017 | 48 | ||
Wells Fargo | WF 301-0014215 | 12 | ||
Wells Fargo | WF 301- 0014215 | 12 | ||
Wells Fargo | WF 301-0014215-003 | 12 | ||
Wells Fargo | Wells Fargo 301-0014215-004 | 12 | ||
Wells Fargo | WF 301-0014215-005 | 12 | ||
Wells Fargo | WF 301-0014215-006 | 12 | ||
Wells Fargo | WF 301-0014215-007 | 12 | ||
Wells Fargo | WF 301-0014215-008 | 12 | ||
Wells Fargo | WF 301-0014215-009 | 12 | ||
Wells Fargo | WF 301-0014215-010 | 12 | ||
Wells Fargo | WF 301-0014215-011 | 12 | ||
Wells Fargo | WF 301-0014215-013 | 12 | ||
Wells Fargo | WF 301-0014215-012 | 12 | ||
Wells Fargo | WF 301-0014215-014 | 12 | ||
Wells Fargo | WF 301-0014215-015 | 12 | ||
Wells Fargo | WF 301-0014215-016 | 12 | ||
Wells Fargo | WF 301-0014215-017 | 12 | ||
Wells Fargo | WF 301-0014215-018 | 12 | ||
Phillips Medical Capital |
Phillips Medical lease 501-50138458 | 12 |
Vehicle Leases
Entity |
Entity
lease
location |
Lease # |
||
Patient Aids | Patient Aids | 251000-399-000 | ||
Patient Aids | Patient Aids | 251000-398-000 | ||
Patient Aids | Patient Aids | 251000-397-000 | ||
Patient Aids | Patient Aids | 251000-354-000 | ||
PHM Inc | PHM Inc | 251000-578-000 | ||
PHM Inc | Black Bear | 251000-550-000 | ||
PHM Inc | Care | 251000-551-000 | ||
PHM Inc | Care | 251000-522-000 | ||
PHM Inc | RMC | 251000-525-000 | ||
PHM Inc | Black Bear | 251000-572-000 | ||
Patient Aids | Patient Aids | 251000-530-000 | ||
PHM Inc | RMD | 251000-558-000 |
Patient Aids | Patient Aids | 251000-535-000 | ||
PHM Inc | Legacy | 251000-537-000 | ||
Patient Aids | Patient Aids | 251000-529-000 | ||
PHM Inc | Legacy | 251000-570-000 | ||
PHM Inc | RMD | 251000-571-000 | ||
Patient Aids | Patient Aids | 251000-536-000 | ||
PHM Inc |
Black Bear Bangor |
251000-555-000 |
||
PHM Inc | Care | 251000-559-000 | ||
Patient Aids | Patient Aids | 251000-560-000 | ||
PHM Inc | Legacy | 251000-566-000 | ||
Patient Aids | Patient Aids | 251000-528-000 | ||
Patient Aids | Patient Aids | 251000-527-000 | ||
PHM Inc | Care | 251000-557-000 | ||
Patient Aids | Patient Aids | 251000-521-000 | ||
PHM Inc | WHH | 251000-548-000 | ||
PHM Inc | Black Bear | 251000-549-000 | ||
Patient Aids | Patient Aids | 251000-524-000 | ||
Patient Aids | Patient Aids | 251000-520-000 | ||
Patient Aids | Patient Aids | 251000-556-000 | ||
Patient Aids | Patient Aids | 251000-523-000 | ||
PHM Inc | Care | 251000-547-000 | ||
PHM Inc | Black Bear | 251000-538-000 | ||
Patient Aids | Patient Aids | 251000-546-000 | ||
Patient Aids | Patient Aids | 251000-565-000 | ||
PHM Inc | Black Bear | 251000-531-000 | ||
PHM Inc | CMT | 251000-597-000 | ||
PHM Inc | Black Bear | 251000-436-000 | ||
PHM Inc | RMD | 251000-403-000 | ||
PHM Inc | RMB | 251000-406-000 | ||
Patient Aids | Patient Aids | 251000-411-000 | ||
PHM Inc | Legacy | 251000-410-000 | ||
PHM Inc | WHH | 251000-409-000 | ||
PHM Inc | WHH | 251000-412-000 | ||
Patient Aids | Patient Aids | 251000-425-000 | ||
Patient Aids | Patient Aids | 251000-423-000 | ||
Patient Aids | Patient Aids | 251000-426-000 | ||
Patient Aids | Patient Aids | 251000-408-000 | ||
PHM Inc | RMC | 251000-413-000 | ||
Patient Aids | Patient Aids | 251000-414-000 | ||
Patient Aids | Patient Aids | 251000-415-000 | ||
Patient Aids | Patient Aids | 251000-433-000 | ||
PHM Inc | COI/RIV | 251000-421-000 | ||
Patient Aids | Patient Aids | 251000-437-000 | ||
Patient Aids | Patient Aids | 251000-438-000 | ||
PHM Inc | Legacy | 251000-435-000 | ||
PHM Inc | Care | 251000-442-000 | ||
PHM Inc | Care | 251000-448-000 | ||
PHM Inc | Care | 251000-449-000 | ||
PHM Inc | Patient Aids | 251000-450-000 | ||
PHM Inc | Care | 251000-459-000 | ||
PHM Inc | Patient Aids | 251000-451-000 | ||
PHM Inc | Patient Aids | 251000-452-000 | ||
PHM Inc | Patient Aids | 251000-453-000 | ||
PHM Inc | Black Bear | 251000-454-000 | ||
PHM Inc | Black Bear | 251000-455-000 | ||
PHM Inc | Care | 251000-456-000 | ||
PHM Inc | Care | 251000-458-000 | ||
PHM Inc | RMG | 251000-467-000 | ||
PHM Inc | Care | 251000-460-000 | ||
PHM Inc | RMG | 251000-465-000 | ||
PHM Inc | RMG | 251000-462-000 | ||
PHM Inc | RMG | 251000-461-000 | ||
PHM Inc | RMG | 251000-463-000 | ||
PHM Inc | Care | 251000-457-000 | ||
PHM Inc | Black Bear | 251000-471-000 | ||
PHM Inc | Patient Aids | 251000-468-000 | ||
PHM Inc | Legacy | 251000-469-000 | ||
PHM Inc | Cooley | 251000-610-000 | ||
PHM Inc | Cooley | 251000-611-000 | ||
PHM Inc | Acadia | 251000-615-000 | ||
PHM Inc | Acadia | 251000-616-000 | ||
PHM Inc | Cooley | 251000-632-000 | ||
PHM Inc | Cooley | 251000-633-000 | ||
PHM Inc | Cooley | 251000-634-000 | ||
PHM Inc | Patient Aids | 251000-609-000 | ||
PHM Inc | Acadia | 251000-623-000 | ||
PHM Inc | Legacy | 251000-596-000 | ||
Patient Aids | Patient Aids | 251000-464-000 | ||
PHM Inc | Cooley | 251000-472-000 | ||
PHM Inc | Cooley | 251000-473-000 | ||
PHM Inc | Cooley | 251000-474-000 | ||
PHM Inc | Cooley | 251000-607-000 | ||
PHM Inc | Care | 251000-637-000 | ||
PHM Inc | Cooley | 251000-638-000 | ||
PHM Inc | Cooley | 251000-639-000 | ||
PHM Inc | Cooley | 251000-640-000 | ||
PHM Inc | Cooley | 251000-641-000 | ||
PHM Inc | CMT | 251000-642-000 | ||
PHM Inc | Cooley | 251000-643-000 | ||
PHM Inc | Cooley | 251000-644-000 | ||
PHM Inc | Cooley | 251000-645-000 | ||
PHM Inc | Acadia | 251000-651-000 | ||
PHM Inc | RMG | 251000-657-000 | ||
PHM Inc | Patient Aids | 251000-658-000 | ||
PHM Inc | Care | 251000-659-000 | ||
PHM Inc | Care | 251000-660-000 | ||
PHM Inc | Care | 251000-661-000 | ||
PHM Inc | Legacy | 251000-664-000 |
Schedule 2
Existing Indebtedness, CARES Act Obligations, Existing Liens and Existing Investments
Permitted Indebtedness:
Acadia
acquisition - $500,000 holdback
Health Technology Resources acquisition - $540,000 Holdback, $500,000
possible earnout and $207,000 PPP loan holdback
Permitted Investments:
None.
Permitted Liens:
None.
Subordinated Indebtedness:
None.
CARES Act Obligations:
Payroll Protection Plan (“PPP’)
On April 21, 2020, the Company received a PPP loan from PNC Bank in the principal amount of approximately $6,000,000 ($5,800,000 at the June 30, 2020 exchange rate), which was to assist Borrowers in maintaining their workforce.
Public Health and Social Services Emergency Fund (“Relief Fund”)
During the three months ended June 30, 2020, the Borrowers received approximately $2,400,000 from the Relief Fund, which was established to support healthcare providers to prevent, prepare for, and respond to coronavirus, including health care related expenses or lost revenues, subject to certain terms and conditions.
Schedule 2.6 Deposit Accounts
Bank Name | Bank Account # | Entity | Routing # | |||
Fifth Third Bank | [REDACTED] | Cooley Medical Equipment, Incorporated | 042101190 | |||
BB&T | [REDACTED] | Care Medical Partners LLC | 06111-1341-5 | |||
BB&T | [REDACTED] | Legacy Oxygen and Home Care Equipment, LLC | 0839-0068-0 | |||
BB&T | [REDACTED] | Recourse Medical Group, LLC | 0532-0160-7 | |||
BB&T | [REDACTED] | West Home Health Care, Inc. | 0514-0426-0 | |||
Chase | [REDACTED] | Central Oxygen, Inc. | 074000010 | |||
City National | [REDACTED] | Cooley Medical Equipment, Incorporated | 2112170082 | |||
Hardin Cty | [REDACTED] | Riverside Medical, Inc. | 084302300 | |||
Katahdin Tr | [REDACTED] | Acadia Medical Supply, Inc. | 011202392 | |||
Katahdin Tr | [REDACTED] | Acadia Medical Supply, Inc. | 011202392 | |||
PNC | [REDACTED] | Acadia Medical Supply, Inc. | 043000096 | |||
PNC | [REDACTED] | Black Bear Medical Inc. | 043000096 | |||
PNC | [REDACTED] | Black Bear Medical NH, Inc. | 043000096 | |||
PNC | [REDACTED] | Coastal Med Tech Corp. | 043000096 | |||
PNC | [REDACTED] | Coastal Med Tech Corp. | 043000096 | |||
PNC | [REDACTED] | Care Medical of Athens, Inc. | 043000096 | |||
PNC | [REDACTED] | Care Medical Atlanta, LLC | 043000096 | |||
PNC | [REDACTED] | Care Medical of Augusta, LLC | 043000096 | |||
PNC | [REDACTED] | Care Medical of Gainesville, LLC | 043000096 | |||
PNC | [REDACTED] | Care Medical Savannah, LLC | 043000096 | |||
PNC | [REDACTED] | Central Oxygen, Inc. | 043000096 | |||
PNC | [REDACTED] | Cooley Medical Equipment, Incorporated | 043000096 | |||
PNC | [REDACTED] | Legacy Oxygen and Home Care Equipment, LLC | 043000096 | |||
PNC | [REDACTED] | Patient-Aids, Inc. | 043000096 | |||
PNC | [REDACTED] | Patient-Aids, Inc. | 043000096 | |||
PNC | [REDACTED] | Patient-Aids, Inc. | 043000096 | |||
PNC | [REDACTED] | PHM Logistics Corporation | 043000096 | |||
PNC | [REDACTED] | Riverside Medical, Inc. | 043000096 | |||
PNC | [REDACTED] | Resource Medical, Inc. | 043000096 | |||
PNC | [REDACTED] | Resource Medical Group of Charleston, LLC | 043000096 | |||
PNC | [REDACTED] | West Home Health, Inc. | 043000096 | |||
TD Bank | [REDACTED] | Black Bear Medical, Inc. | 211274450 | |||
TD Bank | [REDACTED] | Black Bear NH, Inc. | 011400071 | |||
TD Bank | [REDACTED] | Coastal Med Tech Corp. | 211274450 |
Schedule
4.4
Litigation
None.
Schedule 4.14
Ownership of Borrowers and other Credit Parties
Borrower/Guarantor | Equityholder |
PHM Logistics Corporation | PHM Services Inc. |
Central Oxygen, Inc. | PHM Logistics Corporation |
Riverside Medical, Inc. | PHM Logistics Corporation |
Cooley Medical Equipment, Incorporated | PHM Logistics Corporation |
Acadia Medical Supply, Inc. | PHM Logistics Corporation |
Resource Medical, Inc. | PHM Logistics Corporation |
Care Medical Partners LLC | PHM Logistics Corporation |
Resource Medical Group, LLC | Resource Medical, Inc. |
Resource Medical Group of Charleston, LLC | Resource Medical, Inc. |
Care Medical of Athens, Inc. | Care Medical Partners LLC |
Care Medical Atlanta, LLC | Care Medical Partners LLC |
Care Medical of Augusta, LLC | Care Medical Partners LLC |
Care Medical of Gainesville, LLC | Care Medical Partners LLC |
Care Medical Savannah, LLC | Care Medical Partners LLC |
Black Bear Medical Group, Inc. | PHM Logistics Corporation |
Black Bear Medical, Inc. | Black Bear Medical Group, Inc. |
Coastal Med-Tech Corp. | Black Bear Medical Group, Inc. |
Black Bear Medical NH, Inc. | Black Bear Medical Group, Inc. |
West Home Health Care, Inc. | PHM Logistics Corporation |
Legacy Oxygen & Home Care Equipment, LLC | PHM Logistics Corporation |
Patient-Aids, Inc. | PHM Logistics Corporation |
Health Technology Resources, L.L.C. | PHM Logistics Corporation |
Gurantor | Equityholder |
PHM Services Inc. | Protech Home Medical Corp. |
Schedule
4.15
Material Contracts
1. | Provider contracts of each Borrower with Medicare and Medicaid. |
Credit Party |
State/Location/Region
(as applicable) |
Medicare
Jurisdiction |
PTAN/Provider
Number |
|||
Acadia Medical Supply, Inc. | Fort Kent, ME | A | [REDACTED] | |||
Acadia Medical Supply, Inc. | Fort Fairfield, ME | A | [REDACTED] | |||
Acadia Medical Supply, Inc. | Presque Isle, ME | A | [REDACTED] | |||
Acadia Medical Supply, Inc. | Houlton, ME | A | [REDACTED] | |||
Black Bear Medical, Inc. | Portland, ME | A | [REDACTED] | |||
Black Bear Medical NH, Inc. | Greenland, NH | A | [REDACTED] | |||
Care Medical of Athens, Inc. | Athens, GA | C | [REDACTED] | |||
Care Medical of Gainesville, LLC | Gainesville, GA | C | [REDACTED] | |||
Care Medical of Augusta, LLC | Augusta, GA | C | [REDACTED] | |||
Care Medical Atlanta, LLC | Norcross, GA | C | [REDACTED] | |||
Care Medical Atlanta, LLC | Fayetteville, GA | C | ||||
Care Medical Savannah, LLC | Savannah, GA | C | [REDACTED] | |||
Coastal Med-Tech Corp. | Bangor, ME | A | [REDACTED] | |||
Coastal Med-Tech Corp. | Ellsworth, ME | A | [REDACTED] | |||
Coastal Med-Tech Corp. | Lewiston, ME | A | [REDACTED] | |||
Coastal Med-Tech Corp. | Waterville, ME | A | [REDACTED] | |||
Cooley Medical Equipment, Incorporated | Prestonsburg, KY | B | [REDACTED] | |||
Cooley Medical Equipment, Incorporated | Pikeville, KY | B | [REDACTED] | |||
Cooley Medical Equipment, Incorporated | Hazard, KY | B | [REDACTED] | |||
Cooley Medical Equipment, Incorporated | Louisville, KY | B | [REDACTED] | |||
Cooley Medical Equipment, Incorporated | Lexington, KY | B | [REDACTED] | |||
Cooley Medical Equipment, Incorporated | Norton, VA | C | [REDACTED] | |||
Legacy Oxygen and Home Care Equipment, LLC | Paducah, KY | B | [REDACTED] | |||
Legacy Oxygen and Home Care Equipment, LLC | Murray, KY | |||||
Legacy Oxygen and Home Care Equipment, LLC | Marion, KY | B | [REDACTED] | |||
Patient-Aids, Inc. | Wilder, KY | B | [REDACTED] | |||
Patient-Aids, Inc. | Blue Ash, OH | B | [REDACTED] | |||
Patient-Aids, Inc. | Campbellsville, KY | B | [REDACTED] | |||
Patient-Aids, Inc. | Indianapolis, IN | B | [REDACTED] | |||
Patient-Aids, Inc. | Lexington, KY | B | [REDACTED] | |||
Resource Medical Group, LLC | Duncan, SC | C | [REDACTED] | |||
Resource Medical Group of Charleston, LLC | N. Charleston, SC | C | [REDACTED] | |||
Resource Medical Group of Charleston, LLC | Myrtle Beach, SC | C | [REDACTED] | |||
Resource Medical Group of Charleston, LLC | Beaufort, SC | C | [REDACTED] | |||
Resource Medical Group, LLC | Columbia, SC | C | [REDACTED] | |||
Riverside Medical, Inc. | Savannah, TN | C | [REDACTED] | |||
Riverside Medical, Inc. | Chattanooga, TN | C | [REDACTED] | |||
West Home Health Care, Inc. | Richmond, VA | C | [REDACTED] |
Credit Party | State | Medicaid Supplier Numbers | ||
Acadia Medical Supply, Inc. | ME | [REDACTED] | ||
Acadia Medical Supply, Inc. | ME | [REDACTED] | ||
Acadia Medical Supply, Inc. | ME | [REDACTED] | ||
Acadia Medical Supply, Inc. | ME | [REDACTED] | ||
Black Bear Medical, Inc. | ME | [REDACTED] | ||
Black Bear Medical NH, Inc. | NH | [REDACTED] | ||
Care Medical of Athens, Inc. | GA | [REDACTED] | ||
Care Medical of Gainesville, LLC | GA | [REDACTED] | ||
Care Medical of Augusta, LLC | GA | [REDACTED] | ||
Care Medical Atlanta, LLC | GA | [REDACTED] | ||
Care Medical Atlanta, LLC | GA | [REDACTED] | ||
Care Medical of Savannah, LLC | GA | [REDACTED] | ||
Coastal Med-Tech Corp. | ME | [REDACTED] | ||
Coastal Med-Tech Corp. | ME | [REDACTED] | ||
Coastal Med-Tech Corp. | ME | [REDACTED] | ||
Coastal Med-Tech Corp. | ME | [REDACTED] | ||
Cooley Medical Equipment, Inc. | KY | [REDACTED] | ||
Cooley Medical Equipment, Inc. | KY | [REDACTED] | ||
Cooley Medical Equipment, Inc. | KY | [REDACTED] | ||
Cooley Medical Equipment, Inc. | KY | [REDACTED] | ||
Cooley Medical Equipment, Inc. | KY | [REDACTED] | ||
Cooley Medical Equipment, Inc. | VA | |||
Legacy Oxygen and Home Care Equipment, LLC | KY | [REDACTED] | ||
Legacy Oxygen and Home Care Equipment, LLC | KY | [REDACTED] | ||
Legacy Oxygen and Home Care Equipment, LLC | KY | |||
Patient-Aids, Inc. | KY | [REDACTED] | ||
Patient-Aids, Inc. | OH | [REDACTED] | ||
Patient-Aids, Inc. | KY | |||
Patient-Aids, Inc. | IN | [REDACTED] | ||
Patient-Aids, Inc. | KY | |||
Resource Medical Group, LLC | SC | [REDACTED] | ||
Resource Medical Group of Charleston, LLC | SC | [REDACTED] | ||
Resource Medical Group of Charleston, LLC | SC | [REDACTED] | ||
Resource Medical Group of Charleston, LLC | SC | [REDACTED] | ||
Resource Medical Group, LLC | SC | |||
Riverside Medical, Inc. | TN | [REDACTED] | ||
Riverside Medical, Inc. | TN | |||
West Home Health Care, Inc. | VA | [REDACTED] |
2. | While individual plans/contracts with each Credit Party may not be material, collectively when combined for all Credit Parties, Anthem/BCBS, Humana, UHC, Wellcare, Aetna are material. |
Schedule
4.16
Inventory Suppliers
3B Medical Inc. |
4ward Medical, Inc |
A & D Engineering Inc |
AbleNet Inc |
Accurate Biomed Services Inc |
Action Bag Company, Inc |
Activeaid, Inc |
Adaptive Engineering Labs, Inc |
Adaptive Switch Laboratories Inc |
Advanced Diagnostic Solutions Inc. |
Advanced Orthopaedics |
AG Industries |
Airgas USA, LLC |
Alber USA, LLC |
AliMed, Inc |
Altimate Medical, Inc |
American Access |
Amerisourcebergen |
Amysystems |
Anthros Medical |
Apex Foot Health Industries, LLC |
Aspen Medical Products |
Aspen Seating, LLC |
Barco Uniforms |
Batteries + Bulbs #251 |
Batteries Plus LLC |
Battery Outlet Inc |
Battery Power Solutions |
Belcam Inc. |
Bergeron Health Care (Special Tomato) |
Bike Board & Ski |
Bodypoint, Inc |
Bradley Health Services |
Breas Medical Inc. |
Breathe Technologies |
Briggs Healthcare |
Bright Way Group |
Broda Enterprises USA, Inc |
Bryan Medical Inc |
BSN Medical, Inc. |
Burke/Leisure-Lift, Inc |
Caire Inc. |
Cardinal Health at Home |
Carefusion 203, Inc. |
Carolon |
Cascade Designs |
CellEra, LLC |
Cherie Accessories |
CID Resources, Inc. |
CIS |
CIS - Cryogenic Inventory Solutions |
Clarke Healthcare Products |
Compass Health |
Complete Compliance |
Complete Medical Supplies |
Contour Products, Inc |
Convaid Products |
Core Products International, Inc |
Danmar Products Inc |
Dansko, LLC |
Disc Disease Solutions, Inc |
DJO Consumer, LLC |
DJO, LLC |
Drive Medical SPV, LLC. |
East Coast Oxygen & Hydro Testing Inc. |
Ed’s Batteries, Inc |
Essential Medical Supply, Inc |
Evolution Technologies |
Exceleron Medical, Inc |
EZ-Access |
Fisher & Paykel Healthcare |
Flex-A-Bed, Inc |
Freedom Designs, Inc |
Frog Legs Inc |
Gel Ovations |
GF Health Products, Inc |
Golden Technologies |
Gramp Lyford’s Country Salve |
Grampa’s Garden, Inc. |
Grove Medical, Inc |
Handicare USA, Inc |
Hard Manufacturing Co |
Harmar Mobility LLC |
Healthcare Logiix Systems, LLC |
Healthline Medical Products |
Healthwares |
Indiana Oxygen Co. |
Innovation In Motion |
Inspire Medical Marketing |
International Biophysics Corporation (IBC) |
Invacare Corporation |
I-Runner |
Joerns Healthcare, Inc |
Justin Blair & Company |
Juzo |
Kareco International Inc |
Kaye Products Inc |
Ki Mobility |
Knit-Rite Therafirm |
Koi Design. LLC |
Lake Court Medical Supplies |
Latitudes, Inc. |
Leggero, LLC |
Levo USA, Inc |
Lifestyle Mobility Aids |
Linde Gas North America Llc |
Masimo Americas, Inc. |
Matheson Tri-Gas |
Max Mobility |
McKesson |
McKesson Medical |
Medbasix Acquisition Company |
Medbloc Inc/Motion Concepts |
Medela Inc |
Medi USA |
Medicomp |
Medline - Dallas |
Medline Industries, Inc - Palatine |
Medline Industries, Inc - Pittsburgh |
Merits Health Products Inc |
MES Inc |
Messer LLC |
Metal Impact South |
Miller’s Adaptive Technologies |
MJM International Corporation |
MK Battery |
MMAR Medical Group |
Monaghan Medical Corporation |
Moog Medical Devices Group |
Motion Composites |
MOXI Enterprises LLC |
Naturs Designs, Inc |
NexAir, LLC |
Nonin Medical, Inc. |
Northern Light Technologies |
Nova Medical Products |
O2 Concepts LLC |
Otto Bock HealthCare LP |
Ovation Medical |
Oxus America, Inc. |
OxyGo HQ Florida LLC |
Pacific Rehab Inc |
Partners in Medicine, LLC |
PDG Mobility |
Pedifix |
Penco Medical Inc |
Pepper Medical Inc. |
Performance Health Supply, Inc. |
Permobil |
Philips Lifeline |
Pitcock Biomedical Inc. |
Prairie Veiw Industries Inc |
Precision Medical |
Precision Medical (Biomedical Repair Services) |
Prentke Romich Company DBA PRC-Saltillo |
Prestige Medical |
Pride Mobility Products |
R82 |
RAM Elevators & Lifts Inc. |
Ram Manufacturing, Ltd. |
Raz Design Inc. |
Resmed Corp* |
Respironics, Inc |
Responsive Respiratory |
Richardson Products, Inc |
Rifton Equipment |
Roberts Oxygen Company, Inc. |
Roho Incorporated |
Rose Healthcare |
Rosenthal & Rosenthal Southeast |
Salter Labs |
Sigvaris |
Sleep Management Institute (formerly OSA MEDICAL) |
SLEEPSAFE BEDS, LLC |
Smiths Medical ASD, Inc |
So Clean |
Southeast DME |
Span America Medical Systems, Inc |
Spirit Medical |
Stable Step LLC/ Powerstep |
Star Cushion Products, Inc. |
Stealth Products, LLC |
Strategic Distribution, L.P. |
Summit Financial Resources. L.P. for Somnetics International |
Sunmed Group Holdings, LLC |
Sunrise Medical (US) LLC |
Sunset Healthcare Solutions |
Supracor Inc |
Surgical Appliance Industries |
Tennessee Medical Equipment, Inc. |
The Comfort Companies, Inc |
Therafin Corp |
Tilite, LLC |
Transtracheal Systems |
Tri-anim Health Services |
United Ortho |
Ventec Life Systems , Inc VOCSN |
Verilux, Inc |
Virginia Medical Repair |
Voss - Batteries Plus |
Walk Easy |
White Cross 2809869 Canada Inc |
Schedule
4.29
Federal Employer Identification Number
Credit Party | FEIN | |
PHM Services Inc. | [REDACTED] | |
PHM Logistics Corporation | [REDACTED] | |
Central Oxygen, Inc. | [REDACTED] | |
Riverside Medical, Inc. | [REDACTED] | |
Cooley Medical Equipment, Incorporated | [REDACTED] | |
Acadia Medical Supply, Inc. | [REDACTED] | |
Resource Medical, Inc. | [REDACTED] | |
Care Medical Partners LLC | [REDACTED] | |
Resource Medical Group, LLC | [REDACTED] | |
Resource Medical Group of Charleston, LLC | [REDACTED] | |
Care Medical of Athens, Inc. | [REDACTED] | |
Care Medical Atlanta, LLC | [REDACTED] | |
Care Medical of Augusta, LLC | [REDACTED] | |
Care Medical of Gainesville, LLC | [REDACTED] | |
Care Medical Savannah, LLC | [REDACTED] | |
Black Bear Medical Group, Inc. | [REDACTED] | |
Black Bear Medical, Inc. | [REDACTED] | |
Coastal Med-Tech Corp. | [REDACTED] | |
Black Bear Medical NH, Inc. | [REDACTED] | |
West Home Health Care, Inc. | [REDACTED] | |
Legacy Oxygen and Home Care Equipment, LLC | [REDACTED] | |
Patient-Aids, Inc. | [REDACTED] | |
Health Technology Resources, L.L.C. | [REDACTED] |
Schedule
4.30(a)
Compliance of Products
None.
Schedule
4.30(b)
Required Healthcare Authorizations
None.
Schedule 5.17
Post-Closing Obligations
Post-Closing Obligations
Credit Parties shall satisfy and complete each of the following obligations, or provide Administrative Agent each of the items below, as applicable on or before the date indicated below (in each case, or such longer period acceptable to Administrative Agent in its sole discretion), all to the satisfaction of Administrative Agent in its sole and absolute discretion:
1. | Credit Parties shall complete each of the post-closing obligations and/or provide to Administrative Agent each of the documents, instruments, agreements and information required to be delivered after the Closing Date pursuant to Sections 2.6, 3.2(a), and 5.14. |
2. | By no later than thirty (30) days after the Closing Date, the Borrower Representative shall deliver to Administrative Agent all additional insured and lender’s loss payable endorsements and meet all other requirements set forth in Section 5.4. |
3. | By no later than sixty (60) days after the Closing Date, Credit Parties shall have delivered to Administrative Agent’s possession (either directly or by transfer to Administrative Agent’s account at an approved records storage facility subject to a Custodial Administration Agreement) all Rental Agreements dated prior to the Closing Date; |
4. | In addition to any Custodial Administration Agreements delivered pursuant to the immediately preceding item 3 above, by no later than sixty (60) days after the Closing Date, Credit Parties shall deliver such Custodial Administration Agreements and Electronic Custodial Administration Agreements as required pursuant to Section 5.7, Section 5.19, and clause (r) of the definition “Eligible Account”. |
5. | By no later than sixty (60) days after the Closing Date, Credit Parties shall deliver such Collateral Access Agreements and other agreements required pursuant to Section 5.8 (including, for the avoidance of doubt, with respect to “cloud”, billing and records services, and such other services provided by Sun Knowledge Services, Inc. and Brightree, LLC), in each case in form and substance satisfactory to Administrative Agent. |
6. | By no later than sixty (60) days after the Closing Date, Borrower Representative shall deliver to Administrative Agent evidence satisfactory to Administrative Agent that outstanding Liens on the Collateral and any UCC financing statements perfecting such Liens have been amended or terminated in a manner satisfactory to Administrative Agent in its sole discretion. |
Credit Parties’ failure to complete and satisfy any of the above obligations on or before the date indicated above (unless the date for completion of such obligation is otherwise extended at the sole discretion of Administrative Agent), or Credit Parties’ failure to deliver any of the above listed items on or before the date indicated above, shall constitute an immediate and automatic Event of Default.
Schedule
6.8
Transactions with Affiliates
1. | Lease Agreement dated as of October 1, 2015 by and between Greg Crawford, LLC, a Kentucky limited liability company, as lessor, and Patient Aids, Inc., as tenant, relating to real estate and improvements commonly known as 1019 Towne Drive, Wilder, Kentucky 41076. |
2. | Lease Agreement dated as of October 1, 2015 by and between Greg Crawford, LLC, a Kentucky limited liability company, as lessor, and Patient Aids, Inc., as tenant, relating to real estate and improvements commonly known as 3158 Mapleleaf Drive, Lexington, Kentucky 40509. |
3. | Lease Agreement dated as of October 1, 2015 by and between Greg Crawford, LLC, a Kentucky limited liability company, as lessor, and Patient Aids, Inc., as tenant, relating to real estate and improvements commonly known as 100 Crossing Drive, Wilder, Kentucky 41076. |
4. | Lease Agreement dated as of October 1, 2015 by and between Greg Crawford, LLC, a Kentucky limited liability company, as lessor, and Patient Aids, Inc., as tenant, relating to real estate and improvements commonly known as 4901 Century Plaza Road, Indianapolis, Indiana 46254. |
5. | Lease Agreement dated as of July 1, 2019 by and between Greg Crawford, LLC, a Kentucky limited liability company, as lessor, and Patient Aids, Inc., as tenant, relating to real estate and improvements commonly known as 800 Broadway St, Paducah, Kentucky 42001. |
6. | Lease Agreement dated as of July 1, 2019 by and between Greg Crawford, LLC, a Kentucky limited liability company, as lessor, and Patient Aids, Inc., as tenant, relating to real estate and improvements commonly known as 28 Alexandria Pike, Ft. Thomas, Kentucky 41075. |
EXHIBIT A
FORM OF ASSIGNMENT AND ASSUMPTION AGREEMENT
This Assignment and Assumption Agreement (this “Assignment”) is dated as of the Effective Date set forth below and is entered into by and between [NAME OF ASSIGNOR] (the “Assignor”) and [NAME OF ASSIGNEE] (the “Assignee”). Capitalized terms used but not defined herein shall have the meanings given to them in the Credit Agreement identified below (as it may be amended, restated, supplemented or otherwise modified from time to time, the “Credit Agreement”), receipt of a copy of which is hereby acknowledged by the Assignee. The Standard Terms and Conditions set forth in Annex 1 attached hereto (the “Standard Terms and Conditions”) are hereby agreed to and incorporated herein by reference and made a part of this Assignment as if set forth herein in full.
For an agreed consideration, the Assignor hereby irrevocably sells and assigns to the Assignee, and the Assignee hereby irrevocably purchases and assumes from the Assignor, subject to and in accordance with the Standard Terms and Conditions and the Credit Agreement, as of the Effective Date inserted by the Administrative Agent as contemplated below, the interest in and to all of the Assignor’s rights and obligations under the Credit Agreement and any other documents or instruments delivered pursuant thereto that represents the amount and percentage interest identified below of all of the Assignor’s outstanding rights and obligations under the respective facilities identified below (including, to the extent included in any such facilities, letters of credit and swingline loans) (the “Assigned Interest”). Such sale and assignment is without recourse to the Assignor and, except as expressly provided in this Assignment and the Credit Agreement, without representation or warranty by the Assignor.
1. | Assignor: |
2. | Assignee: | [, an Approved Fund] |
3. | Borrower(s): |
PHM Logistics Corporation Central Oxygen, Inc. Riverside Medical, Inc. |
Cooley Medical Equipment, Incorporated
Acadia Medical Supply, Inc.
Resource Medical, Inc.
Care Medical Partners LLC
Black Bear Medical Group, Inc.
West Home Health Care, Inc.
Legacy Oxygen and Home Care Equipment, LLC
Patient-Aids, Inc.
Resource Medical Group, LLC
Resource Medical Group of Charleston, LLC
Care Medical of Athens, Inc.
Care Medical Atlanta, LLC
Care Medical of Augusta, LLC
Care Medical of Gainesville, LLC
Care Medical Savannah, LLC
Black Bear Medical, Inc.
Coastal Med-Tech Corp.
Black Bear Medical NH, Inc.
Health Technology Resources, L.L.C.
4. | Administrative Agent: | CIT Bank, N.A., a national banking association, as the administrative agent under the Credit Agreement |
5. | Credit Agreement: | The $20,000,000 Credit Agreement, dated as of September 18, 2020, by and among Borrower(s), the other Credit Parties party thereto from time to time, each of the Lenders party thereto and Administrative Agent. |
6. | Assigned Interest: |
Facility Assigned |
Aggregate
Amount of Revolving Commitment / Loans for all Lenders |
Amount of
Commitment/ Loans Assigned |
Percentage
|
|||||||||
Revolving Commitment | $ |
[________________] |
$ |
[________________] |
[________________] | % |
Effective Date:____________ , 20 [DATE TO BE INSERTED BY ADMINISTRATIVE AGENT AND WHICH SHALL BE THE EFFECTIVE DATE OF RECORDATION OF TRANSFER IN THE REGISTER THEREFOR.]
7. | Notice and Wire Instructions: |
[NAME OF ASSIGNOR] | [NAME OF ASSIGNOR] | ||||
Notices: | Notices: | ||||
Attention: | Attention: | ||||
Telecopier: | Telecopier: |
with a copy to: | with a copy to: | ||||
Attention: | Attention: | ||||
Telecopier: | Telecopier: | ||||
Wire Instructions: | Wire Instructions: | ||||
**Set forth, to at least 9 decimals, as a percentage of the Commitment/Loans of all Lenders thereunder.
The terms set forth in this Assignment are hereby agreed to:
ASSIGNOR | ||
[NAME OF ASSIGNOR] | ||
By: | ||
Title: | ||
ASSIGNEE | ||
[NAME OF ASSIGNEE] | ||
By: | ||
Title: |
[Consented to and***] Accepted:
CIT
BANK, N.A., a national banking association,
as Administrative Agent
By: |
Name:
Title:
[Consented to:****]
[PHM LOGISTICS CORPORATION], a [Delaware corporation], as Borrower Representative
By: |
Name:
Title:
***To be added only if the consent of the Administrative Agent is required by the terms of the Credit Agreement.
****To be added only if the consent of the Borrower Representative is required by the terms of the Credit Agreement.
ANNEX 1
STANDARD
TERMS AND CONDITIONS FOR ASSIGNMENT
AND ASSUMPTION AGREEMENT
Representations and Warranties.
Assignor. The Assignor (a) represents and warrants that (i) it is the legal and beneficial owner of the Assigned Interest, (ii) the Assigned Interest is free and clear of any lien, encumbrance or other adverse claim and (iii) it has full power and authority, and has taken all action necessary, to execute and deliver this Assignment and to consummate the transactions contemplated hereby; and (b) assumes no responsibility with respect to (i) any statements, warranties or representations made in or in connection with any Loan Document, (ii) the execution, legality, validity, enforceability, genuineness, sufficiency or value of the Credit Agreement or any other instrument or document delivered pursuant thereto, other than this Assignment (herein collectively the “Loan Documents”), or any collateral thereunder, (iii) the financial condition of any Borrower or any of its Subsidiaries or Affiliates or any other Person obligated in respect of any Loan Document or (iv) the performance or observance by any Borrower or any of its Subsidiaries or Affiliates or any other Person of any of their respective obligations under any Loan Document.
Assignee. The Assignee (a) represents and warrants that (i) it has full power and authority, and has taken all action necessary, to execute and deliver this Assignment and to consummate the transactions contemplated hereby and to become a Lender under the Credit Agreement, (ii) it is an Eligible Assignee, (i) from and after the Effective Date, it shall be bound by the provisions of the Credit Agreement and other Loan Documents and, to the extent of the Assigned Interest, shall have the obligations of a Lender thereunder, (iv) it has received a copy of the Credit Agreement, the other Loan Documents and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into this Assignment and to purchase the Assigned Interest on the basis of which it has made such analysis and decision and (v) if it is a Foreign Lender, attached to the Assignment is any documentation required to be delivered by it pursuant to the terms of the Credit Agreement, duly completed and executed by the Assignee; and (b) agrees that (i) it will, independently and without reliance on the Administrative Agent, the Assignor or any other Lender, and based on such documents and information as it shall deem appropriate at that time, continue to make its own credit decisions in taking or not taking action under the Loan Documents, and (ii) it will perform in accordance with their terms all of the obligations which by the terms of the Loan Documents are required to be performed by it as a Lender.
Payments. From and after the Effective Date, the Administrative Agent shall make all payments in respect of the Assigned Interest (including payments of principal, interest, fees and other amounts) to the Assignor for amounts which have accrued to but excluding the Effective Date and to the Assignee for amounts which have accrued from and after the Effective Date. Notwithstanding the foregoing, the Administrative Agent shall make all payments of interest, fees or other amounts paid or payable in kind from and after the Effective Date to the relevant Assignee.
General Provisions. This Assignment shall be binding upon, and inure to the benefit of, the parties hereto and their respective successors and assigns. This Assignment may be executed in any number of counterparts, which together shall constitute one instrument. Delivery of an executed counterpart of a signature page of this Assignment by telecopy shall be effective as delivery of a manually executed counterpart of this Assignment. This Assignment shall be governed by, and construed in accordance with, the internal laws of the State of New York without regard to conflict of laws principles thereof.
EXHIBIT B
FORM OF COMPLIANCE CERTIFICATE
THE UNDERSIGNED HEREBY CERTIFIES AS FOLLOWS:
1. Each of the undersigned hereby makes this certificate as the [Chief Financial Officer] of one or more of [PHM LOGISTICS CORPORATION], a [Delaware corporation] (the “Borrower Representative”) and [ ].
2. Each of the undersigned has reviewed the terms of that certain Credit Agreement, dated as of September 18, 2020 (as it may be amended, restated, supplemented or otherwise modified from time to time, the “Credit Agreement”), by and among Borrower Representative, the other Credit Parties from time to time party thereto, each of the Lenders party thereto, and CIT BANK, N.A., a national banking association, as Administrative Agent, and has made, or has caused to be made under his or her supervision, a review in reasonable detail of the transactions and condition of the Consolidated Entities during the accounting period covered by the attached financial statements. Capitalized terms used but not otherwise defined herein have the meanings ascribed to them in the Credit Agreement.
3. The examination described in paragraph 2 above did not disclose, and none of the undersigned have knowledge of, the existence of any condition or event which constitutes an Event of Default or a Default during or at the end of the accounting period covered by the attached financial statements or as of the date of this Certificate, except as set forth in a separate attachment, if any, to this Certificate, describing in reasonable detail, the nature of the condition or event, the period during which it has existed and the action which the applicable Consolidated Entity has taken, is taking, or proposes to take with respect to each such condition or event.
4. The financial statements delivered with this Compliance Certificate present fairly in all material respects the financial condition and results of operations of the Consolidated Entities, on a consolidated and consolidating basis, in accordance with IFRS consistently applied. No change in IFRS or the application thereof has occurred since the Closing Date which affects the financial statements delivered with this Compliance Certificate in any material respect or if such change in IFRS or in the application thereof has occurred, include a statement describing the effect of such change on the financial statements accompanying this Compliance Certificate.
5. All representations and warranties by each Credit Party in the Loan Documents are true and correct in all material respects on and as of the date hereof, except that (i) if any such representation or warranty specifically refers to an earlier date, then such representation or warranty is true and correct in all material respects as of such earlier date, (ii) if any such representation or warranty is qualified as to “materiality” or “Material Adverse Effect”, then such representation or warranty is true and correct in all respects on and as of the date hereof and (iii) for purposes hereof, the representations and warranties contained in Section 4.9 of the Credit Agreement shall be deemed to refer to the most recent financial statements delivered pursuant to Section 8.3 of the Credit Agreement.
[Remainder of Page Intentionally Blank; Signatures Follow]
The foregoing certifications, together with the computations set forth in the Annex A hereto and the financial statements delivered with this Certificate in support hereof, are made and delivered [ENTER DATE] pursuant to Section 8.3 of the Credit Agreement.
[PHM LOGISTICS CORPORATION], a [Delaware corporation], for itself and as Borrower Representative | ||
By: |
Name: |
Title: |
ANNEX A TO COMPLIANCE CERTIFICATE1
Adjusted EBITDA Adjusted EBITDA for the applicable Test Period is calculated as follows:
|
|||
“Test Period”: [ ] – [ ]2 | |||
net income of the Consolidated Entities on a consolidated basis for such period (i) before all interest, tax obligations and depreciation and amortization expense of the Consolidated Entities, (ii) excluding any non-cash income, (iii) before accretion expenses related to Indebtedness issuance costs, (iv) excluding any gain or loss from discontinued operations, (v) excluding non-cash gains and losses with respect to financial derivatives, determined on a consolidated basis for such period, all determined in conformity with IFRS on a basis consistent with the latest audited financial statements of the Consolidated Entities |
|||
Plus: |
non-cash compensation expenses arising from the sale of Equity Interests, the granting of options to purchase Equity Interests, the granting of appreciation rights in respect of Equity Interests and similar arrangements for such period |
||
Plus: |
Only with respect to the period ending September 30, 2020, losses and expenses incurred during such period in connection with the fraudulent cyber incident that occurred in May 2019 (such incident included the relaying of fraudulent banking information for a C$9,200,000 wire transfer to redeem outstanding debentures) in an aggregate amount not to exceed C$1,012,000 |
||
Plus: |
in connection with any Permitted Acquisition, all reasonable, out-of-pocket transaction fees, costs and expenses payable to third parties incurred during such period; provided, the amount added back with respect to any individual Permitted Acquisition shall not exceed $100,000 |
||
Plus: | the impairment of goodwill and other intangibles during such period | ||
Plus: | any other non-cash or one time charges agreed to in writing by Administrative Agent in its reasonable discretion | ||
Plus: |
Code Section 338(h)(10) incurred in connection with any prior acquisition by Borrowers; provided, the amount added back pursuant to this clause and excluded from EBITDA calculation pursuant to clauses (iii) and (iv) thereof (only with respect to losses for such clause (iv)) shall not exceed $1,250,000 in the aggregate for any such period |
||
1 If the methodology of calculating any financial covenant on this Annex A conflicts with the terms of the Credit Agreement, the terms of the Credit Agreement shall govern and control.
2 To be calculated for the twelve (12) consecutive calendar months most recently ended.
Equals: | Test Period Consolidated EBITDA3 | (A) | |
Fixed Charge Coverage Ratio
Fixed Charge Coverage Ratio for the applicable Test Period is calculated as follows:
|
|||
Test Period Consolidated EBITDA | |||
Less: | Unfinanced Capital Expenditures | ||
Less: |
all federal, state and local income tax expenses due and payable by the Consolidated Entities on a consolidated basis during such period, as incurred by the Consolidated Entities on a consolidated basis during such period |
||
Equals: | Fixed Charge Coverage Ratio numerator | (D) | |
Plus: |
all interest obligations (including the interest component of Capital Leases) of the Consolidated Entities on a consolidated basis paid or due during such period |
3 Each element to be calculated for the Consolidated Entities on a consolidated basis (without duplication) and in accordance with IFRS principles
2
Minimum Net Availability
Net Availability is calculated as follows:
|
|||
At any time, the lesser of: | |||
The Borrowing Base of the Borrowers on a consolidated basis | |||
The Revolving Commitment | |||
Equals: | (F) | ||
At any time, the sum of: | |||
The principal amount of all outstanding Revolving Loans | |||
Plus: | The undrawn amount of all outstanding Letters of Credit | ||
Equals: | (G) | ||
Net Availability: the amount by which (F) exceeds (G): | |||
Minimum Net Availability for any trailing thirty (30) day average: | $1,000,000.00 | ||
In Compliance | Yes/No |
4 Each element to be calculated for the Consolidated Entities on a consolidated basis (without duplication) and in accordance with IFRS principles
3
EXHIBIT C
FORM OF REVOLVING NOTE
$[ ] | [ ], 202_ |
FOR VALUE RECEIVED, the undersigned (together with any other Person becoming a “Borrower” under the Credit Agreement (as defined below), each a “Borrower”, and collectively, the “Borrowers”), hereby promises to pay to CIT BANK, N.A., a national banking association, or its registered assigns (“Lender”), the principal amount of [___________] ($ _______.00) or, if less, the unpaid principal amount of all Revolving Loans in accordance with the provisions of that certain Credit Agreement, dated as of September 18, 2020 by and among Borrowers, the Guarantors from time to time party thereto, Lender, in its capacity as Administrative Agent and a lender, and the other financial institutions from time to time party thereto as lenders, dated of even date herewith (as amended, restated, supplemented or otherwise modified from time to time, the “Credit Agreement”). All capitalized terms used but not defined in this Revolving Note shall have the meanings given to such terms in the Credit Agreement.
Each Borrower promises to pay interest on the unpaid principal amount of each Revolving Loan from the date of such Revolving Loan until such principal amount is paid in full, at such interest rates and at such times as provided in the Credit Agreement. All payments of principal and interest shall be made in immediately available funds as provided in the Credit Agreement. If any amount is not paid in full when due hereunder, such unpaid amount shall bear interest, to be paid upon demand, from the due date thereof until the date of actual payment (and before as well as after judgment) computed at the per annum rate set forth in the Credit Agreement.
This Revolving Note is one of the “Notes” referred to in the Credit Agreement, is entitled to the benefits thereof and may be prepaid in whole or in part subject to the terms and conditions provided therein. This Revolving Note is also entitled to the benefits of the Guaranty and is secured by the Collateral. Upon the occurrence and continuation of one or more of the Events of Default specified in the Credit Agreement, all amounts then remaining unpaid on this Revolving Note shall become, or may be declared to be, immediately due and payable all as provided in the Credit Agreement. Revolving Loans made by Lender shall be evidenced by one or more loan accounts or records maintained by Lender in the ordinary course of business. Lender may also attach schedules to this Revolving Note and endorse thereon the date, amount and maturity of its Revolving Loans and payments with respect thereto.
Each Borrower, for itself and its successors and assigns, hereby waives diligence, presentment, protest and demand and notice of protest, demand, dishonor and non-payment of this Revolving Note.
Delivery of the executed signature pages of this Revolving Note by facsimile or other electronic transmission will constitute effective and binding execution and delivery. The obligations of Borrowers hereunder shall be joint and several.
4
THIS REVOLVING NOTE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO CONTRACTS MADE AND PERFORMED IN SUCH STATE AND ANY APPLICABLE LAW OF THE UNITED STATES OF AMERICA. TO THE FULLEST EXTENT PERMITTED BY LAW, EACH BORROWER HEREBY UNCONDITIONALLY AND IRREVOCABLY WAIVES ANY CLAIMS TO ASSERT THAT THE LAW OF ANY OTHER JURISDICTION GOVERNS THIS REVOLVING NOTE.
[remainder of page intentionally left blank; signature page follows]
5
IN WITNESS WHEREOF the undersigned Borrowers have executed and delivered this Revolving Note as of the day and year first written above.
BORROWERS:
[ ], a [ ]
By: |
Name: |
Title: |
LOANS AND PAYMENTS WITH RESPECT THERETO
Amount of | ||||||||||||
Principal or | Outstanding | |||||||||||
End of | Interest | Principal | ||||||||||
Type of | Amount of | Interest | Paid This | BalanceThis | Notation | |||||||
Date | Loan Made | Loan Made | Period | Date | Date | Made By | ||||||
EXHIBIT D
Closing Checklist
[See attached]
$20,000,000 REVOLVING CREDIT FACILITY to
PHM Logistics Corporation and the Credit Parties set forth on Annex A
Closing Date: September 18, 2020
CLOSING CHECKLIST
Key:
B |
Protech
Home Medical Corp
BC Katz Teller |
L | CIT |
LC | Waller |
II. Schedules
|
BC | Form agreed | ||
D. Fee Letter Agreement
|
LC | 4848-0784-6855 | B ☐ L ☐ | Form agreed |
E. Revolving Note
|
LC | 4848-3766-7015 | B ☐ | Form agreed |
F. Security Agreement (Borrowers)
|
LC | 4848-7376-9927 | B ☐ L ☐ | Form agreed |
I. Exhibits
|
LC | Form agreed | ||
II. Schedules
|
BC | |||
G. Guaranty Agreement | LC | 4834-2262-7015 | B ☐ L ☐ | Form agreed |
H. Pledge Agreement (Borrowers and Guarantors)
1. Schedules
|
LC | 4846-9887-5079 | B ☐ L ☐ |
Form agreed
1. Form agreed |
I. Pledge Agreement (Parent) | N/A | |||
J. Stock Certificates (if any) and related stock powers to be delivered |
|
Received pdfs; originals to follow post-closing | ||
K. UCC-1 Financing Statements (Borrowers) |
LC
|
Final | ||
L. UCC-1 Financing Statement (Guarantors/Pledgor) |
LC
|
Final | ||
M. Springing Deposit Account Control Agreements (Operating Accts) |
LC
|
4817-8755-8345 | LC sent form 8/31 * REQUIRED PRIOR TO ANY ADVANCE | |
1. PNC (Concentration Account) |
|
LC sent comments to PNC 9/8 | ||
2. PNC (Parent Account) | ||||
N. Solvency Certificate
|
LC | 4828-3573-9079 | B ☐ | Form agreed |
O. Inventory Supplier Subordination Agreements
|
LC | 4811-2334-8937 | LC sent form 8/31 |
2
3
4
5
B. [DACA/DAISA Terminations] | Received Executed ☐ | N/A | ||
C. Loan Notice | L/B | B ☐ | N/A - to come at the time of borrowing | |
D. Closing Statement and Funds Flow Memorandum (funds flow, closing statement, disbursement authorizations) | L/B | 4837-7363-1178 | B ☐ L ☐ | Form agreed |
E. Pro Forma Compliance Certificate (Including Borrowing Base Report) | L/B | B ☐ | Form agreed | |
F. Loan Ops | L/B | Complete | ||
VIII. POST-CLOSING | ||||
A. Post-Closing UCC Searches to Reflect CIT Filings |
LC | PC | ||
B. Landlord Waivers | LC | 4840-9134-3303 | Form agreed; subject to review of the leases | |
C. Custodial Bailee Agreements | LC | |||
D. Collateral Assignment of Data-hosting/Web-based Billing Software Agreements | LC | 4840-0633-1336 | Form drafted | |
1. Acumatica | LC | |||
2. Brightree, LLC | LC | |||
E. Springing Deposit Account Control Agreements (Operating Accts) |
LC | 4817-8755-8345 |
LC sent form 8/31 * REQUIRED PRIOR TO ANY ADVANCE |
|
1. PNC (Concentration Account) | LC sent comments to PNC 9/8 | |||
2. PNC (Parent Account) |
6
Credit Party Information
Person | Location Name (if applicable) | State of Formation / Residence | Federal Tax ID Number | Address of Operating Locations | Lease |
PHM Services Inc. | Delaware | [REDACTED] | 1019 Town Drive, Wilder, Kentucky 41076 | Received; under review | |
PHM Logistics Corporation | Delaware |
[REDACTED] |
1019 Town Drive, Wilder, Kentucky 41076 |
Received; under review | |
Central Oxygen, Inc. | Indiana |
[REDACTED] |
4501 W. Williamsburg Blvd Munice, IN - no longer in operation |
Received; under review | |
Riverside Medical, Inc. | Tennessee |
[REDACTED] |
275 A Eureka St Savannah, TN 38372 105 Lee Parkway Suite C Chattanooga, TN 37421 |
Received; under review |
7
Person | Location Name (if applicable) |
State of Formation / Residence |
Federal Tax ID Number |
Address of Operating Locations |
Lease |
Cooley Medical Equipment, Incorporated | Kentucky |
[REDACTED] |
500 Village Lane Hazard, KY 41701 65 Weddington Branch Rd Pikeville, KY 1152 Riverside Dr 1160 Riverside Dr 1184 S Lake Dr Preston, KY 41653 1316 S. Broadway, Lexington, KY |
Received | |
Acadia Medical Supply, Inc. | Maine |
[REDACTED] |
274 Main Street Fort Fairfield, ME 04742 Aroostook Centre Mall, 830 Main Street, Suite B-1 Presque Isle, ME 04769 62 West Main Street, Suite 105 Fort Kent, ME 04743 104 Bangor Street, Suite B Houlton, ME 04730 |
Received |
8
Person | Location Name (if applicable) |
State of Formation / Residence |
Federal Tax ID Number |
Address of Operating Locations |
Lease |
Resource Medical, Inc. | South Carolina | [REDACTED] | 1019 Town Drive, Wilder, Kentucky 41076 | Received | |
Care Medical Partners LLC | Georgia | [REDACTED] |
1019 Town Drive, Wilder, Kentucky 41076 |
Received | |
Black Bear Medical Group, Inc. |
Maine | [REDACTED] |
275 Marginal Way Portland, ME |
Received | |
West Home Health Care, Inc. | Virginia | [REDACTED] |
2026 Dabney Rd Suite C Richmond, VA 23230 |
Received | |
Legacy Oxygen and Home Care Equipment, LLC | Kentucky | [REDACTED] |
800 Broadway St. Paducah, KY 42001 924 S. 12th Street, Suite A, Murray, KY 42071 707 S. Main Street Marion, KY 42064 |
Received |
9
Person | Location Name (if applicable) |
State of Formation / Residence |
Federal Tax ID Number |
Address of Operating Locations |
Lease |
Patient-Aids, Inc. |
Kentucky | [REDACTED] |
100 Crossing Drive 2050 Versailles Rd. 2529 Regency Road Suite 104 Lexington, KY 5673 Creek Rd 1488 C Old Lebanon Rd. 4901 Century Plaza Rd. 3158 Mapleleaf Dr. |
Received | |
Resource Medical Group, LLC |
South Carolina | [REDACTED] |
110A Aztec Court, Duncan, SC 29334 1401 St Andrews Rd Columbia, SC 29210 |
Received | |
Resource Medical Group of Charleston, LLC |
South Carolina | [REDACTED] |
4042 Ashley Phosphate Rd. N. Charleston, SC 29418 1406 J Commerce Place, Myrtle Beach, SC 29577 1180 Ribaut Road, Ste. 4&5 Beaufort, SC 29902 |
Received | |
Care Medical of Athens, Inc. |
Georgia | [REDACTED] |
1242 Prince Avenue |
Received |
10
Person | Location Name (if applicable) |
State of Formation / Residence |
Federal Tax ID Number |
Address of Operating Locations |
Lease |
Care Medical Atlanta, LLC |
Georgia | [REDACTED] |
3145 Gateway Dr, Suite C 122 Robinson Court |
Received | |
Care Medical of Augusta, LLC | Georgia | [REDACTED] |
1238 Fenwick Street |
Received | |
Care Medical of Gainesville, LLC | Georgia | [REDACTED] | 955 Interstate Ridge Drive | Received | |
Care Medical Savannah, LLC |
Georgia | [REDACTED] |
4821 Waters Ave |
Received | |
Black Bear Medical, Inc. |
Maine | [REDACTED] |
275 Marginal Way Portland ME 04101 |
Received | |
Coastal Med- Tech. Corp |
Maine | [REDACTED] |
25 Douglas Hwy. Ellsworth, ME 475 Pleasant Ave. Lewiston, ME 210 College Ave. Waterville, ME |
Received | |
Black Bear Medical NH, Inc. |
New Hampshire | [REDACTED] |
437 Portsmouth Ave Unit 4 Greenland, NG 03840 |
Received | |
Health Technology Resources, L.L.C. |
Illinois |
903 Wildwood Lane, Northbrook, IL 60062 |
Received |
11
Annex B
UCC-1s/8821s
Person | State of Formation | UCC-1 Comments | 8821 |
Borrowers | |||
PHM Logistics Corporation | Delaware | LC sent revised 9/14 | Form agreed |
Central Oxygen, Inc. | Indiana | LC sent revised 9/14 | Form agreed |
Riverside Medical, Inc. | Tennessee | LC sent revised 9/14 | Form agreed |
Cooley Medical Equipment, Inc. | Kentucky | LC sent revised 9/14 | Form agreed |
Acadia Medical Supply, Inc. | Maine | LC sent revised 9/14 | Form agreed |
Resource Medical, Inc. | South Carolina | LC sent revised 9/14 | Form agreed |
Care Medical Partners LLC | Georgia | LC sent revised 9/14 | Form agreed |
Black Bear Medical Group, Inc. | Maine | LC sent revised 9/14 | Form agreed |
West Home Health Care, Inc. | Virginia | LC sent revised 9/14 | Form agreed |
Legacy Oxygen & Home Care Equipment, LLC | Kentucky | LC sent revised 9/14 | Form agreed |
Patient Aids, Inc. | Kentucky | LC sent revised 9/14 | Form agreed |
Resource Medical Group, LLC | South Carolina | LC sent revised 9/14 | Form agreed |
Resource Medical Group of Charleston, LLC | South Carolina | LC sent revised 9/14 | Form agreed |
Care Medical of Athens, LLC | Georgia | LC sent revised 9/14 | Form agreed |
Care Medical Atlanta, LLC | Georgia | LC sent revised 9/14 | Form agreed |
Care Medical of Augusta, LLC | Georgia | LC sent revised 9/14 | Form agreed |
Care Medical of Gainesville, LLC | Georgia | LC sent revised 9/14 | Form agreed |
Care Medical Savannah, LLC | Georgia | LC sent revised 9/14 | Form agreed |
Black Bear Medical, Inc. | Maine | LC sent revised 9/14 | Form agreed |
Coastal Med-Tech. Corp | Maine | LC sent revised 9/14 | Form agreed |
Black Bear Medical NH, Inc. | New Hampshire | LC sent revised 9/14 | Form agreed |
Health Technology Resources, L.L.C. | Illinois | LC sent revised 9/14 | Form agreed |
Guarantor/Pledgor | |||
PHM Services Inc. | Delaware | LC sent revised 9/14 | Form agreed |
12
UCC-3 Terminations
Person | Initial Filing # | Secured Party | Comments |
Borrowers | |||
Riverside Medical, Inc. | o Filing Number: 209-053994 Filed: 10/30/09 | HARDIN COUNTY BANK | (Accounts receivable, inventory & equipment of Riverside Medical, Inc.) |
o Filing Number: 309-068755 Filed: 12/21/09 | |||
o Filing Number: 423202327 Filed: 5/8/15 | CORPORATION SERVICE COMPANY, AS REPRESENTATIVE |
(Notice pursuant to an agreement between Debtor and Secured Party, Debtor has agreed not to further encumber the collateral described herein. The further encumbering of which may constitute the tortious interference with the Secured Party’s right by such encumbrancer in the event that any entity is granted a security interest in Debtor’s accounts, chattel paper or general intangibles contrary to the above, the Secured Party asserts a claim to any proceeds thereof received by such entity.) |
|
o Filing Number: 42819163 Filed: 2/8/18 | READYCAP LENDING, LLC |
(All of the following property whether now owned or hereafter acquired and wheresoever located as well as the proceeds and products thereof; All equipment and machinery, including power-driven machinery, Titled motor vehicles, including mobile or manufactures and equipment, leasehold improvements, fixtures, now owned or hereafter acquired, together with all replacement thereof, all attachments, accessories, parts, equipment and tools belonging thereto or for us in connection therewith. All inventory, raw materials, work in progress, and supplies now owned or hereinafter acquired. All chattel paper, instruments, and general intangibles now in force or hereafter acquired. All accounts and health care insurance receivables now outstanding or hereafter arising.) |
13
Person | Initial Filing # | Secured Party | Comments |
Cooley Medical Equipment, Incorporated | o Filing Number: 2019- 3004450-68.01 Filed: 1/31/19 | DEXT CAPITAL, LLC |
(This filing covers the following properties, assets and rights of Debtor (collectively the “Collateral”): (a) all personal property described below or on any exhibit attached hereto, which exhibit is incorporated by reference herein (“Specified Items”); (b) any and all additions, replacements, parts, or accessories to the Specified Items; (c) any subleases, chattel paper, accounts, security deposits relating to the Specified Items or the leasing or financing of the Specified Items by Secured Party; and (d) all proceeds of any and all of the foregoing. In the event serial numbers, vehicle identification numbers or similar information is included below, on an exhibit attached hereto or otherwise in the description of Collateral, such information has been added by Secured Party to the best of its information in an effort to avoid confusion but is not intended to, and shall not, limit the above description of Collateral.) |
Resource Medical Group, LLC |
o Filing Number: 001019- 102129A Filed: 10/19/00 |
WELLS FARGO BANK, N.A./ FIRST UNION NATIONAL BANK |
(All accounts, equipment, inventory and all products and proceeds.) |
Care Medical of Athens, LLC |
o Recorded Number: Book 454 P 465 Recorded Date: 1/29/18 |
GA State tax lien in the amount of $232.10. |
|
Black Bear Medical Group, Inc. | o Filing Number 2080001898030 Filed: 1/4/08 | SUNRISE MEDICAL, INC. |
(The “Collateral for purposes of the Security Agreement to which this Exhibit A is attached consists of all |
14
15
Annex C
Secretary’s Certificates
Person | Sec. Cert. | Formation Document | Organizational Document | Resolutions | Good Standing | Foreign Qualification | Consents |
Borrowers | |||||||
PHM Logistics Corporation | Received | Received | Received | LC sent comments | Received | ||
Central Oxygen, Inc. | Received | Received | Received |
LC sent comments |
Received | ||
Riverside Medical, Inc. | Received | Received | Received | LC sent comments | Received | ||
Cooley Medical Equipment, Incorporated |
Received | Received | Received | LC sent comments | Received | ||
Acadia Medical Supply, Inc. | Received | Received | Received | LC sent comments | Received | ||
Resource Medical, Inc. |
Received | Received | Received | LC sent comments | Received | ||
Care Medical Partners LLC | Received | Received | Received | LC sent comments | Received | ||
Black Bear Medical Group, Inc. |
Received | Received | Received | LC sent comments | Received | ||
West Home Health Care, Inc. | Received | Received | Received | LC sent comments | Received | ||
Legacy Oxygen and Home Care Equipment, LLC |
Received | Received | Received | LC sent comments | Received | ||
Patient-Aids, Inc. | Received | Received | Received | LC sent comments | Received | ||
Resource Medical Group, LLC | Received | Received | Received | LC sent comments | Received | ||
Resource Medical Group of Charleston, LLC |
Received | Received | Received | LC sent comments | Received | ||
Care Medical of Athens, Inc. | Received | Received | Received | LC sent comments | Received | ||
Care Medical Atlanta, LLC |
Received | Received | Received | LC sent comments | Received |
16
Person | Sec. Cert. |
Formation Document |
Organizational Document | Resolutions | Good Standing |
Foreign Qualification |
Consents |
Care Medical of Augusta, LLC |
Received | Received | Received | LC sent comments | Received | ||
Care Medical of Gainesville, LLC |
Received | Received | Received | LC sent comments | Received | ||
Care Medical Savannah, LLC |
Received | Received | Received | LC sent comments | Received | ||
Black Bear Medical, Inc. |
Received | Received | Received | LC sent comments | Received | ||
Coastal Med-Tech. Corp. |
Received | Received | Received | LC sent comments | Received | ||
Black Bear Medical NH, Inc. |
Received | Received | Received | LC sent comments | Received | ||
Health Technology Resources, L.L.C. |
Received | Received | Received | LC sent comments | Received | ||
Guarantor/Pledgor | |||||||
PHM Services Inc. | Received | Received | Received |
LC sent comments |
Received |
17
Exhibit 99.64
FORM 51-102F3
MATERIAL CHANGE REPORT
1. | Name and Address of Company |
Protech Home Medical Corp. (the “Company”)
1019 Town Drive
Wilder, Kentucky 41076
2. | Date of Material Change |
September 18, 2020
3. | News Release |
A news release with respect to the material change referred to in this report was disseminated on September 21, 2020 through GlobeNewswire and filed on the system for electronic document analysis and retrieval (SEDAR).
4. | Summary of Material Change |
The Company entered into an Asset-Based Revolving Credit Facility with CIT’S Healthcare Finance business, part of its Commercial Finance division, pursuant to which the lender has agreed to advance up to $20 million at a tiered rate, this agreement has a four year maturity and may be extended pursuant to both parties agreement.
5. | Full Description of Material Change |
5.1 | Full Description of Material Change |
The material change is fully described in the news release attached hereto.
5.2 | Disclosure for Restructuring Transactions |
Not applicable.
6. | Reliance on Subsection 7.1(2) of Regulation 51-102 |
Not applicable.
7. | Omitted Information |
Not applicable.
8. | Executive Officer |
For additional information, please contact Hardik Mehta, Chief Financial Officer of the Company, at (859) 202-3085.
9. | Date of Report |
September 28, 2020
PROTECH HOME MEDICAL SECURES US$20 MILLION SENIOR CREDIT FACILITY WITH CIT
GROUP’S HEALTHCARE FINANCE BUSINESS
PROTECH WILL USE THE FACILITY TO FURTHER BOLSTER ITS BALANCE SHEET
ENHANCING AND EXPANDING ITS ACQUSITION STRATEGY
Cincinnati, Ohio – September 21, 2020 – Protech Home Medical Corp. (“Protech” or the “Company”) (TSXV: PTQ), (OTCQX: PTQQF), a U.S. based leader in the home medical equipment industry, focused on end-to-end respiratory care, is very pleased to announce that it has entered into a US$20 million senior credit facility with CIT (NYSE:CIT).
Financing Details
Protech has entered into an Asset-Based Revolving Credit Facility with CIT’S Healthcare Finance business, part of its Commercial Finance division, pursuant to which the lender has agreed to advance up to $20 million at a tiered rate, this agreement has a four year maturity and may be extended pursuant to both parties agreement.
Commentary
“This senior credit facility with CIT is truly a momentous moment for Protech and I could not be prouder of the entire team for their continued hard work that led us to this very significant moment. With this new credit facility in place, we have added another tool in our toolbox that will further enable us to take the Company through its next stage of growth with our key objectives in mind,” said Greg Crawford, Chairman and CEO of Protech. “The Credit Facility provides the Company with greatly enhanced financial flexibility and further strengthens our financial position to ensure our ability to continue to execute on our growth strategy and enhance long term shareholder value. We are extremely excited to have entered into this agreement with CIT’s Healthcare Finance business, as it further validates our model, and provides for a continued expansion of our merger and acquisition strategy. We are confident that this additional bolstering of our balance sheet will help Protech extend its presence into existing and new markets. We look forward to growing with CIT as we aim to increase our credit facility over time.”
Chief Financial Officer, Hardik Mehta added, “Our financing team worked hand in hand with CIT to pursue the successful addition of this credit facility. In these unprecedented times, we were able to work quickly to bring this facility to a close in rapid time and thank Mike Coiley and the CIT team for their efforts. In this low interest rate environment, we are confident that the credit facility, with its attractive cost of capital, will allow Protech to accelerate its acquisition pace and augment the size of its acquisition targets, both with a disciplined focus on achieving greater levels of accretion. Our team looks forward to continuing and building upon its relationship with CIT.”
William Douglass, Managing Director and Group Head of CIT’s Healthcare Finance business, added, “Protech has a sophisticated and highly experienced management team that has an unwavering commitment to excellence. We are proud to support them and we look forward to working with them as they continue to grow and prosper.”
ABOUT PROTECH HOME MEDICAL CORP.
The Company provides in-home monitoring and disease management services including end-to-end respiratory solutions for patients in the United States healthcare market. It seeks to continue to expand its offerings to include the management of several chronic disease states focusing on patients with heart or pulmonary disease, sleep disorders, reduced mobility and other chronic health conditions. The primary business objective of the Company is to create shareholder value by offering a broader range of services to patients in need of in-home monitoring and chronic disease management. The Company’s organic growth strategy is to increase annual revenue per patient by offering multiple services to the same patient, consolidating the patient’s services and making life easier for the patient.
ABOUT CIT
CIT is a leading national bank focused on empowering businesses and personal savers with the financial agility to navigate their goals. CIT Group Inc. (NYSE: CIT) is a financial holding company with over a century of experience and operates a principal bank subsidiary, CIT Bank, N.A. (Member FDIC, Equal Housing Lender). The company's commercial banking segment includes commercial financing, community association banking, middle market banking, equipment and vendor financing, factoring, railcar financing, treasury and payments services, and capital markets and asset management. CIT's consumer banking segment includes a national direct bank and regional branch network. Discover more at cit.com/about.
Forward-Looking Statements
Certain statements contained in this press release constitute "forward-looking information" as such term is defined in applicable Canadian securities legislation. The words "may", "would", "could", "should", "potential", "will", "seek", "intend", "plan", "anticipate", "believe", "estimate", "expect" and similar expressions as they relate to the Company, Company, including completing additional acquisitions, are intended to identify forward-looking information. All statements other than statements of historical fact may be forward-looking information. Such statements reflect the Company's current views and intentions with respect to future events, and current information available to the Company, and are subject to certain risks, uncertainties and assumptions, including, the Company successfully identified, negotiating and completing additional acquisitions, including accretive acquisitions. Many factors could cause the actual results, performance or achievements that may be expressed or implied by such forward-looking information to vary from those described herein should one or more of these risks or uncertainties materialize. Examples of such risk factors include, without limitation: credit; market (including equity, commodity, foreign exchange and interest rate); liquidity; operational (including technology and infrastructure); reputational; insurance; strategic; regulatory; legal; environmental; capital adequacy; the general business and economic conditions in the regions in which the Company operates; the ability of the Company to execute on key priorities, including the successful completion of acquisitions, business retention, and strategic plans and to attract, develop and retain key executives; difficulty integrating newly acquired businesses; the ability to implement business strategies and pursue business opportunities; low profit market segments; disruptions in or attacks (including cyber-attacks) on the Company's information technology, internet, network access or other voice or data communications systems or services; the evolution of various types of fraud or other criminal behavior to which the Company is exposed; the failure of third parties to comply with their obligations to the Company or its affiliates; the impact of new and changes to, or application of, current laws and regulations; decline of reimbursement rates; dependence on few payors; possible new drug discoveries; a novel business model; dependence on key suppliers; granting of permits and licenses in a highly regulated business; the overall difficult litigation environment, including in the U.S.; increased competition; changes in foreign currency rates; increased funding costs and market volatility due to market illiquidity and competition for funding; the availability of funds and resources to pursue operations; critical accounting estimates and changes to accounting standards, policies, and methods used by the Company; the occurrence of natural and unnatural catastrophic events and claims resulting from such events; and risks related to COVID-19 including various recommendations, orders and measures of governmental authorities to try to limit the pandemic, including travel restrictions, border closures, non-essential business closures, quarantines, self-isolations, shelters-in-place and social distancing, disruptions to markets, economic activity, financing, supply chains and sales channels, and a deterioration of general economic conditions including a possible national or global recession; as well as those risk factors discussed or referred to in the Company’s disclosure documents filed with the securities regulatory authorities in certain provinces of Canada and available at www.sedar.com. Should any factor affect the Company in an unexpected manner, or should assumptions underlying the forward-looking information prove incorrect, the actual results or events may differ materially from the results or events predicted. Any such forward-looking information is expressly qualified in its entirety by this cautionary statement. Moreover, the Company does not assume responsibility for the accuracy or completeness of such forward-looking information. The forward-looking information included in this press release is made as of the date of this press release and the Company undertakes no obligation to publicly update or revise any forward-looking information, other than as required by applicable law.
Unless otherwise specified, all dollar amounts in this press release are expressed in Canadian dollars.
Neither the TSX Venture Exchange nor its Regulation Services Provider (as that term is defined in the policies of the TSX Venture Exchange) accepts responsibility for the adequacy or accuracy of this release.
For further information please visit our website at www.protechhomemedical.com, or contact:
Cole Stevens
VP of Corporate Development
Protech Home Medical Corp.
859-300-6455
cole.stevens@myphm.com
Gregory Crawford
Chief Executive Officer
Protech Home Medical Corp.
859-300-6455
investorinfo@myphm.com
CIT Media Relations
John Moran
(212) 461-5507
john.moran@cit.com
Exhibit 99.65
PROTECH HOME MEDICAL SECURES US$20 MILLION
SENIOR CREDIT FACILITY WITH CIT
GROUP’S HEALTHCARE FINANCE BUSINESS
PROTECH WILL USE THE FACILITY TO FURTHER
BOLSTER ITS BALANCE SHEET
ENHANCING AND EXPANDING ITS ACQUSITION STRATEGY
Cincinnati, Ohio – September 21, 2020 – Protech Home Medical Corp. (“Protech” or the “Company”) (TSXV: PTQ), (OTCQX: PTQQF), a U.S. based leader in the home medical equipment industry, focused on end-to-end respiratory care, is very pleased to announce that it has entered into a US$20 million senior credit facility with CIT (NYSE:CIT).
Financing Details
Protech has entered into an Asset-Based Revolving Credit Facility with CIT’S Healthcare Finance business, part of its Commercial Finance division, pursuant to which the lender has agreed to advance up to $20 million at a tiered rate, this agreement has a four year maturity and may be extended pursuant to both parties agreement.
Commentary
“This senior credit facility with CIT is truly a momentous moment for Protech and I could not be prouder of the entire team for their continued hard work that led us to this very significant moment. With this new credit facility in place, we have added another tool in our toolbox that will further enable us to take the Company through its next stage of growth with our key objectives in mind,” said Greg Crawford, Chairman and CEO of Protech. “The Credit Facility provides the Company with greatly enhanced financial flexibility and further strengthens our financial position to ensure our ability to continue to execute on our growth strategy and enhance long term shareholder value. We are extremely excited to have entered into this agreement with CIT’s Healthcare Finance business, as it further validates our model, and provides for a continued expansion of our merger and acquisition strategy. We are confident that this additional bolstering of our balance sheet will help Protech extend its presence into existing and new markets. We look forward to growing with CIT as we aim to increase our credit facility over time.”
Chief Financial Officer, Hardik Mehta added, “Our financing team worked hand in hand with CIT to pursue the successful addition of this credit facility. In these unprecedented times, we were able to work quickly to bring this facility to a close in rapid time and thank Mike Coiley and the CIT team for their efforts. In this low interest rate environment, we are confident that the credit facility, with its attractive cost of capital, will allow Protech to accelerate its acquisition pace and augment the size of its acquisition targets, both with a disciplined focus on achieving greater levels of accretion. Our team looks forward to continuing and building upon its relationship with CIT.”
William Douglass, Managing Director and Group Head of CIT’s Healthcare Finance business, added, “Protech has a sophisticated and highly experienced management team that has an unwavering commitment to excellence. We are proud to support them and we look forward to working with them as they continue to grow and prosper.”
ABOUT PROTECH HOME MEDICAL CORP.
The Company provides in-home monitoring and disease management services including end-to-end respiratory solutions for patients in the United States healthcare market. It seeks to continue to expand its offerings to include the management of several chronic disease states focusing on patients with heart or pulmonary disease, sleep disorders, reduced mobility and other chronic health conditions. The primary business objective of the Company is to create shareholder value by offering a broader range of services to patients in need of in-home monitoring and chronic disease management. The Company’s organic growth strategy is to increase annual revenue per patient by offering multiple services to the same patient, consolidating the patient’s services and making life easier for the patient.
ABOUT CIT
CIT is a leading national bank focused on empowering businesses and personal savers with the financial agility to navigate their goals. CIT Group Inc. (NYSE: CIT) is a financial holding company with over a century of experience and operates a principal bank subsidiary, CIT Bank, N.A. (Member FDIC, Equal Housing Lender). The company's commercial banking segment includes commercial financing, community association banking, middle market banking, equipment and vendor financing, factoring, railcar financing, treasury and payments services, and capital markets and asset management. CIT's consumer banking segment includes a national direct bank and regional branch network. Discover more at cit.com/about.
Forward-Looking Statements
Certain statements contained in this press release constitute "forward-looking information" as such term is defined in applicable Canadian securities legislation. The words "may", "would", "could", "should", "potential", "will", "seek", "intend", "plan", "anticipate", "believe", "estimate", "expect" and similar expressions as they relate to the Company, Company, including completing additional acquisitions, are intended to identify forward-looking information. All statements other than statements of historical fact may be forward-looking information. Such statements reflect the Company's current views and intentions with respect to future events, and current information available to the Company, and are subject to certain risks, uncertainties and assumptions, including, the Company successfully identified, negotiating and completing additional acquisitions, including accretive acquisitions. Many factors could cause the actual results, performance or achievements that may be expressed or implied by such forward-looking information to vary from those described herein should one or more of these risks or uncertainties materialize. Examples of such risk factors include, without limitation: credit; market (including equity, commodity, foreign exchange and interest rate); liquidity; operational (including technology and infrastructure); reputational; insurance; strategic; regulatory; legal; environmental; capital adequacy; the general business and economic conditions in the regions in which the Company operates; the ability of the Company to execute on key priorities, including the successful completion of acquisitions, business retention, and strategic plans and to attract, develop and retain key executives; difficulty integrating newly acquired businesses; the ability to implement business strategies and pursue business opportunities; low profit market segments; disruptions in or attacks (including cyber-attacks) on the Company's information technology, internet, network access or other voice or data communications systems or services; the evolution of various types of fraud or other criminal behavior to which the Company is exposed; the failure of third parties to comply with their obligations to the Company or its affiliates; the impact of new and changes to, or application of, current laws and regulations; decline of reimbursement rates; dependence on few payors; possible new drug discoveries; a novel business model; dependence on key suppliers; granting of permits and licenses in a highly regulated business; the overall difficult litigation environment, including in the U.S.; increased competition; changes in foreign currency rates; increased funding costs and market volatility due to market illiquidity and competition for funding; the availability of funds and resources to pursue operations; critical accounting estimates and changes to accounting standards, policies, and methods used by the Company; the occurrence of natural and unnatural catastrophic events and claims resulting from such events; and risks related to COVID-19 including various recommendations, orders and measures of governmental authorities to try to limit the pandemic, including travel restrictions, border closures, non-essential business closures, quarantines, self-isolations, shelters-in-place and social distancing, disruptions to markets, economic activity, financing, supply chains and sales channels, and a deterioration of general economic conditions including a possible national or global recession; as well as those risk factors discussed or referred to in the Company’s disclosure documents filed with the securities regulatory authorities in certain provinces of Canada and available at www.sedar.com. Should any factor affect the Company in an unexpected manner, or should assumptions underlying the forward-looking information prove incorrect, the actual results or events may differ materially from the results or events predicted. Any such forward-looking information is expressly qualified in its entirety by this cautionary statement. Moreover, the Company does not assume responsibility for the accuracy or completeness of such forward-looking information. The forward-looking information included in this press release is made as of the date of this press release and the Company undertakes no obligation to publicly update or revise any forward-looking information, other than as required by applicable law.
Unless otherwise specified, all dollar amounts in this press release are expressed in Canadian dollars.
Neither the TSX Venture Exchange nor its Regulation Services Provider (as that term is defined in the policies of the TSX Venture Exchange) accepts responsibility for the adequacy or accuracy of this release.
For further information please visit our website at www.protechhomemedical.com, or contact:
Cole Stevens
VP of Corporate Development
Protech Home Medical Corp.
859-300-6455
cole.stevens@myphm.com
Gregory Crawford
Chief Executive Officer
Protech Home Medical Corp.
859-300-6455
investorinfo@myphm.com
CIT Media Relations
John Moran
(212) 461-5507
john.moran@cit.com
Exhibit 99.66
PROTECH HOME MEDICAL INVITED TO PRESENT AT THE MICROCAP RODEO BEST IDEAS
BOWL ON OCTOBER 13TH TO 16TH
WEBCASTED PRESENTATION TO BE HELD ON WEDNESDAY, OCTOBER 14TH AT 11AM EDT
Cincinnati, Ohio – October 6, 2020 – Protech Home Medical Corp. (“Protech” or the “Company”) (TSXV: PTQ), (OTCQX: PTQQF), a U.S. based leader in the home medical equipment industry, focused on end-to-end respiratory care, is pleased to announce that it has been invited to present at the MicroCap Rodeo Best Ideas Bowl, which is being held virtually on October 13th – 16th, 2020.
Protech is scheduled to present on Wednesday, October 14th at 11am EDT, with one-on-one meetings to be held throughout the conference. The presentation will be webcast live and available for replay at https://microcap.protechhomemedical.com.
“We are thrilled to have been invited to participate as one of the top 25 ideas at the MicroCap Rodeo and look forward to sharing our continued success with U.S. based investors,” said Greg Crawford, Chairman and CEO of Protech. We continue to be active on both sides of the border communicating with current and prospective investors and will keep our shareholders apprised as to future conferences we attend.”
ABOUT MICROCAP RODEO BEST IDEAS BOWL
The MicroCap Rodeo is back with its first ever “Best Ideas Bowl.” This conference is a virtual conference for their top 25 best ideas from the buy side. Qualified institutional investors recommended each of the 25 companies represented as one of their best ideas.
ABOUT PROTECH HOME MEDICAL CORP.
The Company provides in-home monitoring and disease management services including end-to-end respiratory solutions for patients in the United States healthcare market. It seeks to continue to expand its offerings to include the management of several chronic disease states focusing on patients with heart or pulmonary disease, sleep disorders, reduced mobility and other chronic health conditions. The primary business objective of the Company is to create shareholder value by offering a broader range of services to patients in need of in-home monitoring and chronic disease management. The Company’s organic growth strategy is to increase annual revenue per patient by offering multiple services to the same patient, consolidating the patient’s services and making life easier for the patient.
Neither the TSX Venture Exchange nor its Regulation Services Provider (as that term is defined in the policies of the TSX Venture Exchange) accepts responsibility for the adequacy or accuracy of this release.
For further information please visit our website at www.protechhomemedical.com, or contact:
Cole Stevens
VP of Corporate Development
Protech Home Medical Corp.
859-300-6455
cole.stevens@myphm.com
Gregory Crawford
Chief Executive Officer
Protech Home Medical Corp.
859-300-6455
investorinfo@myphm.com
Exhibit 99.67
PROTECH HOME MEDICAL TO PARTICIPATE IN THE STIFEL 2020 VIRTUAL HEALTHCARE CONFERENCE ON NOVEMBER 16-18
WEBCASTED PRESENTATION TO BE HELD TUESDAY, NOVEMBER 17
Cincinnati, Ohio – October 21, 2020 – Protech Home Medical Corp. (the “Company” or “Protech”) (TSXV:PTQ; OTCQX:PTQQF), a U.S. based leader in the home medical equipment industry, focused on end-to-end respiratory care, today announced that members of its management team will be presenting the Company and participating in 1x1 meetings at the upcoming Stifel 2020 Virtual Healthcare Conference. The event is virtual and will take place between November 16-18, 2020.
Webcasted Presentation
Event: Stifel 2020 Virtual
Healthcare Conference
Date: Tuesday, November 17, 2020
Time: 9:20am (EDT)
The live webcast of the Company’s presentation will be available by visiting the investors' section of the Company's website at www.protechhomemedical.com. The webcast will also be available for replay on the Company's website following the event.
“We continue to be very active on the capital markets front by attending investor conferences on both sides of the border to share our continued operational and financial progress to date. We anticipate attending additional conferences throughout the remainder of 2020 given the level of investor interest in the Protech story,” commented Greg Crawford, CEO, and Chairman of Protech. “With a pristine balance sheet, including our newly available US$20 credit facility with CIT Bank, our continued operational excellence in the midst of the COVID-19 pandemic, and our previously announced LOI that we expect to close imminently, we could not be more excited about the future for Protech.”
ABOUT PROTECH HOME MEDICAL
The Company provides in-home monitoring and disease management services including end-to-end respiratory solutions for patients in the United States healthcare market. It seeks to continue to expand its offerings to include the management of several chronic disease states focusing on patients with heart or pulmonary disease, sleep disorders, reduced mobility and other chronic health conditions. The primary business objective of the Company is to create shareholder value by offering a broader range of services to patients in need of in-home monitoring and chronic disease management. The Company’s organic growth strategy is to increase annual revenue per patient by offering multiple services to the same patient, consolidating the patient’s services and making life easier for the patient.
Forward-Looking Statements
Certain statements contained in this press release constitute "forward-looking information" as such term is defined in applicable Canadian securities legislation. The words "may", "would", "could", "should", "potential", "will", "seek", "intend", "plan", "anticipate", "believe", "estimate", "expect" and similar expressions as they relate to the Company, including: the Company attending the virtual conference; the Company attending additional conferences; and the Company closing a transaction imminently; are intended to identify forward-looking information. All statements other than statements of historical fact may be forward-looking information. Such statements reflect the Company's current views and intentions with respect to future events, and current information available to the Company, and are subject to certain risks, uncertainties and assumptions. Many factors could cause the actual results, performance or achievements that may be expressed or implied by such forward-looking information to vary from those described herein should one or more of these risks or uncertainties materialize. Examples of such risk factors include, without limitation: credit; market (including equity, commodity, foreign exchange and interest rate); liquidity; operational (including technology and infrastructure); reputational; insurance; strategic; regulatory; legal; environmental; capital adequacy; the general business and economic conditions in the regions in which the Company operates; the ability of the Company to execute on key priorities, including the successful completion of acquisitions, business retention, and strategic plans and to attract, develop and retain key executives; difficulty integrating newly acquired businesses; the ability to implement business strategies and pursue business opportunities; low profit market segments; disruptions in or attacks (including cyber-attacks) on the Company's information technology, internet, network access or other voice or data communications systems or services; the evolution of various types of fraud or other criminal behavior to which the Company is exposed; the failure of third parties to comply with their obligations to the Company or its affiliates; the impact of new and changes to, or application of, current laws and regulations; decline of reimbursement rates; dependence on few payors; possible new drug discoveries; a novel business model; dependence on key suppliers; granting of permits and licenses in a highly regulated business; the overall difficult litigation environment, including in the U.S.; increased competition; changes in foreign currency rates; increased funding costs and market volatility due to market illiquidity and competition for funding; the availability of funds and resources to pursue operations; critical accounting estimates and changes to accounting standards, policies, and methods used by the Company; the occurrence of natural and unnatural catastrophic events and claims resulting from such events; and risks related to COVID-19 including various recommendations, orders and measures of governmental authorities to try to limit the pandemic, including travel restrictions, border closures, non-essential business closures, quarantines, self-isolations, shelters-in-place and social distancing, disruptions to markets, economic activity, financing, supply chains and sales channels, and a deterioration of general economic conditions including a possible national or global recession; as well as those risk factors discussed or referred to in the Company’s disclosure documents filed with the securities regulatory authorities in certain provinces of Canada and available at www.sedar.com. Should any factor affect the Company in an unexpected manner, or should assumptions underlying the forward-looking information prove incorrect, the actual results or events may differ materially from the results or events predicted. Any such forward-looking information is expressly qualified in its entirety by this cautionary statement. Moreover, the Company does not assume responsibility for the accuracy or completeness of such forward-looking information. The forward-looking information included in this press release is made as of the date of this press release and the Company undertakes no obligation to publicly update or revise any forward-looking information, other than as required by applicable law.
Neither the TSX Venture Exchange nor its Regulation Services Provider (as that term is defined in the policies of the TSX Venture Exchange) accepts responsibility for the adequacy or accuracy of this release.
For further information please visit our website at www.protechhomemedical.com, or contact:
Cole Stevens
VP of Corporate Development
Protech Home Medical Corp.
859-300-6455
cole.stevens@myphm.com
Gregory Crawford
Chief Executive Officer
Protech Home Medical Corp.
859-300-6455
investorinfo@myphm.com
Exhibit 99.68
PROTECH HOME MEDICAL COMMENTS ON CMS DECISION TO CANCEL 2021 COMPETITIVE BIDDING PROGRAM FOR 13 PRODUCT CATEGORIES
CANCELLATION OF 2021 BIDDING PROGRAM PROVIDES CLEAR MARGIN OUTLOOK ACROSS PRODUCT MIX, ENSURES PATIENT BASE STABILITY, AND PROVIDES GREATER LEVEL OF PATIENT CARE
Cincinnati, Ohio – October 28, 2020 – Protech Home Medical Corp. (the “Company” or “Protech”) (TSXV: PTQ) (OTCQX: PTQQF), a U.S. based leader in the home medical equipment industry, focused on end-to-end respiratory care, is pleased to comment on the decision made by the Centers for Medicare and Medicaid Services (CMS), wherein the CMS has not awarded contracts for any of the product categories that would have affected Protech’s revenue because the expected payment amounts did not achieve expected savings for the Competitive Bidding Program (CBP) that was expected to begin on January 1, 2021.
Protech believes that in light of the COVID-19 pandemic, the decision made by the CMS was appropriate and proper given these unprecedented times. The decision will help to ensure that there are no unnecessary barriers to the quality of care for patients, such as access to home respiratory products, other needed supplies, and durable medical equipment. The Company believes that continuing the CBP program at this time could have had a negative impact on patient care that is centered around quality of service. It is evident that home-based care for the growing population of elderly Americans is crucial, and reducing the burden on hospitals, nursing homes, and other senior living facilities, will be imperative going forward. To that end, Protech is prepared and ready to respond to an acceleration of the pandemic, and like other industry participants, will continue to be focused on building capacity in the coming months, rather than preparing to cut capacity, and this CMS decision eliminates that threat.
The Company believes that the decision by CMS to not award competitive bidding contracts for any of the 13 product categories for Round 2021 was also predicated on the fact that the previously compet-ed payment amounts did not achieve the expected savings. Accordingly, the Company believes that reimbursement rates have likely neared a floor and there is no Medicare reimbursement rate cut risks for the foreseeable future. This is extremely bullish for Protech’s current business as it provides the Company with a significantly clearer outlook on the margin for its product mix, such as PAP machines, nebulizers, oxygen systems, wheelchairs, hospital beds, and seat lifts, alongside non-invasive ventila-tors (NIV), which had been removed previously. Moreover, this assists the Company in maintaining a stable patient base, with accelerating growth as the Company continues to build market share. Protech has played a vital role in hospital discharges, serving vulnerable patients and the Company is delighted that CMS recognizes the importance of the role HME providers play.
“This is truly a historic moment for our company and industry, and we couldn’t be more pleased with the CMS decision to cancel the 2021 Competitive Bidding Program, as this will have the likely result of substantially bolstering patient access to home-based care treatment,” commented Greg Crawford, CEO and Chairman of Protech. “As the COVID-19 pandemic continues, we must continue to build our capacity as an industry to provide the upmost level of care to the growing number of patients that require home-based healthcare solutions. Home-based care is the most effective way to reduce both short- and long-term stays in hospitals, and we are delighted the CMS has recognized that now is not the right time to implement the Competitive Bidding Program. This is an extraordinary tailwind for our business, and with our first-rate infrastructure, pristine balance sheet, operating momentum, and organizational continuity, we are ready to capitalize on this opportunity and aggressively grow our market share.”
Protech provides home delivery and efficient online set-up of equipment for, primarily, chronic conditions. The Company operates out of 48 locations in 10 states with over 17,000 referring physicians and approximately 110,000 current active patients.
ABOUT PROTECH HOME MEDICAL
The Company provides in-home monitoring and disease management services including end-to-end respiratory solutions for patients in the United States healthcare market. It seeks to continue to expand its offerings to include the management of several chronic disease states focusing on patients with heart or pulmonary disease, sleep disorders, reduced mobility and other chronic health conditions. The primary business objective of the Company is to create shareholder value by offering a broader range of services to patients in need of in-home monitoring and chronic disease management. The Company’s organic growth strategy is to increase annual revenue per patient by offering multiple services to the same patient, consolidating the patient’s services and making life easier for the patient.
Forward-Looking Statements
Certain statements contained in this press release constitute "forward-looking information" as such term is defined in applicable Canadian securities legislation. The words "may", "would", "could", "should", "potential", "will", "seek", "intend", "plan", "anticipate", "believe", "estimate", "expect" and similar expressions as they relate to the Company, including the anticipated impact of the CMS decision to cancel the 2021 Competitive Bidding Program, are intended to identify forward-looking information. All statements other than statements of historical fact may be forward-looking information. Such statements reflect the Company's current views and intentions with respect to future events, and current information available to the Company, and are subject to certain risks, uncertainties and assumptions. Many factors could cause the actual results, performance or achievements that may be expressed or implied by such forward-looking information to vary from those described herein should one or more of these risks or uncertainties materialize. Examples of such risk factors include, without limitation: credit; market (including equity, commodity, foreign exchange and interest rate); liquidity; operational (including technology and infrastructure); reputational; insurance; strategic; regulatory; legal; environmental; capital adequacy; the general business and economic conditions in the regions in which the Company operates; the ability of the Company to execute on key priorities, including the successful completion of acquisitions, business retention, and strategic plans and to attract, develop and retain key executives; difficulty integrating newly acquired businesses; the ability to implement business strategies and pursue business opportunities; low profit market segments; disruptions in or attacks (including cyber-attacks) on the Company's information technology, internet, network access or other voice or data communications systems or services; the evolution of various types of fraud or other criminal behavior to which the Company is exposed; the failure of third parties to comply with their obligations to the Company or its affiliates; the impact of new and changes to, or application of, current laws and regulations; decline of reimbursement rates; dependence on few payors; possible new drug discoveries; a novel business model; dependence on key suppliers; granting of permits and licenses in a highly regulated business; the overall difficult litigation environment, including in the U.S.; increased competition; changes in foreign currency rates; increased funding costs and market volatility due to market illiquidity and competition for funding; the availability of funds and resources to pursue operations; critical accounting estimates and changes to accounting standards, policies, and methods used by the Company; the occurrence of natural and unnatural catastrophic events and claims resulting from such events; and risks related to COVID-19 including various recommendations, orders and measures of governmental authorities to try to limit the pandemic, including travel restrictions, border closures, non-essential business closures, quarantines, self-isolations, shelters-in-place and social distancing, disruptions to markets, economic activity, financing, supply chains and sales channels, and a deterioration of general economic conditions including a possible national or global recession; as well as those risk factors discussed or referred to in the Company’s disclosure documents filed with the securities regulatory authorities in certain provinces of Canada and available at www.sedar.com. Should any factor affect the Company in an unexpected manner, or should assumptions underlying the forward-looking information prove incorrect, the actual results or events may differ materially from the results or events predicted. Any such forward-looking information is expressly qualified in its entirety by this cautionary statement. Moreover, the Company does not assume responsibility for the accuracy or completeness of such forward-looking information. The forward-looking information included in this press release is made as of the date of this press release and the Company undertakes no obligation to publicly update or revise any forward-looking information, other than as required by applicable law.
Neither the TSX Venture Exchange nor its Regulation Services Provider (as that term is defined in the policies of the TSX Venture Exchange) accepts responsibility for the adequacy or accuracy of this release.
For further information please visit our website at www.protechhomemedical.com, or contact:
Cole Stevens
VP of Corporate Development
Protech Home Medical Corp.
859-300-6455
cole.stevens@myphm.com
Gregory Crawford
Chief Executive Officer
Protech Home Medical Corp.
859-300-6455
investorinfo@myphm.com
Exhibit 99.69
PROTECH HOME MEDICAL TO PARTICIPATE AT VIRTUAL INVESTOR CONFERENCES IN NOVEMBER
SIDOTI WEBCASTED PRESENTATION TO BE HELD THURSDAY NOVEMBER 19
Cincinnati, Ohio – November 3, 2020 – Protech Home Medical Corp. (the “Company” or “Protech”) (TSXV: PTQ) (OTCQX: PTQQF), a U.S. based leader in the home medical equipment industry, focused on end-to-end respiratory care, today announced that members of its management team will participate in 1x1 meetings at the upcoming 9th Annual Benchmark Virtual Discovery One on One Investor Conference on November 18th, and the Sidoti Fall 2020 Virtual Microcap Conference on November 19th.
9th Annual Benchmark Virtual Discovery One on One Investor Conference
Protech will participate in the 9th Annual Benchmark Virtual Discovery One on One Investor Conference on Wednesday, November 18, 2020.
Benchmark is a leading financial services firm focused on investment banking, equity research, and sales & trading within the Technology, Media, Healthcare and Industrial sectors. Founded in 1988, Benchmark is headquartered in New York City with offices in Boston, Milwaukee and San Francisco.
For additional information or to schedule a one-on-one meeting at the 9th Annual Benchmark Virtual Discovery One on One Investor Conference on Wednesday, November 18, 2020, please contact Vince Curatola-Director of Corporate Marketing Services at vcuratola@benchmarkcompany.com.
Sidoti Fall 2020 Virtual Microcap Conference
Protech will participate in the Sidoti Fall 2020 Virtual Microcap Conference on Thursday, November 19, 2020, which will be webcasted at 10:00am (EST).
The live webcast of the presentation will be available by visiting the investors' section of the Company's website at www.protechhomemedical.com. The webcast will also be available for replay on the Company's website following the event. Please visit the events section of the Sidoti & Company website at https://sidoticonference.com to register for the conference and schedule a one-on-one meeting.
“On the heels of closing Sleepwell, bringing our run-rate revenue to $125 million, we continue to possess the strongest balance sheet in our history with over $28 million in cash and an undrawn USD$20 million credit facility with CIT Bank. We have consistently hit revenue and EBITDA margin milestones and have just revised our growth trajectory upward for the next five years, making this an exciting time for our company and shareholders,” commented Greg Crawford, CEO, and Chairman of Protech. “Furthermore, with the recent CMS decision to cancel the 2021 Competitive Bidding Program for 13 product categories, reimbursement rates have likely neared a floor and there is no Medicare reimbursement rate cut risks for the foreseeable future which truly clears the margin outlook for us, and we believe this news, coupled with our continued strong operating performance, will bode well for our underlying results. We look forward to sharing our dynamic clinical respiratory company with new U.S. based investors, in particular as we look to significantly enhance our U.S. presence in 2021.”
ABOUT PROTECH HOME MEDICAL
The Company provides in-home monitoring and disease management services including end-to-end respiratory solutions for patients in the United States healthcare market. It seeks to continue to expand its offerings to include the management of several chronic disease states focusing on patients with heart or pulmonary disease, sleep disorders, reduced mobility and other chronic health conditions. The primary business objective of the Company is to create shareholder value by offering a broader range of services to patients in need of in-home monitoring and chronic disease management. The Company’s organic growth strategy is to increase annual revenue per patient by offering multiple services to the same patient, consolidating the patient’s services and making life easier for the patient.
Neither the TSX Venture Exchange nor its Regulation Services Provider (as that term is defined in the policies of the TSX Venture Exchange) accepts responsibility for the adequacy or accuracy of this release.
For further information please visit our website at www.protechhomemedical.com, or contact:
Cole Stevens
VP of Corporate Development
Protech Home Medical Corp.
859-300-6455
cole.stevens@myphm.com
Gregory Crawford
Chief Executive Officer
Protech Home Medical Corp.
859-300-6455
investorinfo@myphm.com
Exhibit 99.70
PROTECH HOME MEDICAL ANNOUNCES RECORD PRELIMINARY FOURTH QUARTER 2020 RESULTS
EBITDA MARGIN ACCELERATION CONTINUES
BUSINESS REMAINS ROBUST INTO FISCAL Q1 2021
Cincinnati, Ohio – November 30, 2020 – Protech Home Medical Corp. (the “Company” or “Protech”) (TSXV:PTQ; OTCQX:PTQQF), a U.S. based leader in the home medical equipment industry, focused on end-to-end respiratory care, is pleased to announce record preliminary financial results for the fourth quarter of 2020, ending September 30, 2020.
Preliminary Financial Results - Quarter Ended September 30, 2020
· | Revenue in the range of $26.1 million to $26.5 million. The Company experienced robust organic growth in the fourth quarter, however the reported CAD revenue amount was offset by a weakening of the US dollar relative the Canadian dollar by approximately 4%. |
· | Adjusted EBITDA in the range of $5.6 million to $6.1 million. |
“We are extremely satisfied with the record preliminary financial performance in the fourth quarter and the foundation that has been built for continued aggressive growth in 2021 and beyond. It is the resilience of the entire team, whilst dealing with the impact of a global pandemic that allowed us to surpass our financial objectives in the fourth quarter and for the full year of 2020,” commented Greg Crawford, CEO and Chairman of Protech. “We have seen our sleep business pick up in the back half of the year, approaching levels seen early in 2020, and are optimistic the sleep business will return to and surpass pre-pandemic levels in 2021. As a whole, our business remains robust into our fiscal first quarter of 2021, our M&A pipeline is full, and we are well capitalized with our pristine balance sheet to capture the significant opportunities at our front door.
We are building a world class clinical respiratory organization focused on superior patient care, and I am extremely proud of the work by our team as evidenced in our strong results. Furthermore, we are proud to report there has been a surge in the usage of our tele-health platform, and we are proud to offer both remote and in-person options to our patients as it comes to the education of utilizing our equipment. We believe the need for in-home healthcare will only continue to accelerate across the country, and hospitals will continue to provide Protech with continued opportunity, and we are ready to capitalize. We felt it extremely important to continue to keep our shareholders apprised with our financial performance in real time. We look forward to sharing our full financial results and commentary in January.”
Chief Financial Officer, Hardik Mehta added, “Our record preliminary results speak to the continued operational execution across the organization. We have a strong interconnected platform that allows us to build our business organically and continue to lather on acquired businesses to the platform in a seamless fashion. Furthermore, the recent decision by CMS to not award competitive bidding contracts for any of the 13 product categories for Round 2021 is extremely bullish for our current business as it provides us with a significantly clearer outlook on the margin for our overall product mix. Our Adjusted EBITDA margins continue to exceed our expectations and we are extremely confident in our ability to continue with this trajectory.”
Protech provides home delivery and efficient online set-up of equipment for, primarily, chronic conditions. The Company operates out of 48 locations in 10 states with over 17,000 referring physicians and approximately 110,000 current active patients.
ABOUT PROTECH HOME MEDICAL
The Company provides in-home monitoring and disease management services including end-to-end respiratory solutions for patients in the United States healthcare market. It seeks to continue to expand its offerings to include the management of several chronic disease states focusing on patients with heart or pulmonary disease, sleep disorders, reduced mobility and other chronic health conditions. The primary business objective of the Company is to create shareholder value by offering a broader range of services to patients in need of in-home monitoring and chronic disease management. The Company’s organic growth strategy is to increase annual revenue per patient by offering multiple services to the same patient, consolidating the patient’s services and making life easier for the patient.
Forward-Looking Statements
Certain statements contained in this press release constitute "forward-looking information" as such term is defined in applicable Canadian securities legislation. The words "may", "would", "could", "should", "potential", "will", "seek", "intend", "plan", "anticipate", "believe", "estimate", "expect" and similar expressions as they relate to the Company, including: the Company expecting continued aggressive growth in 2021 and beyond; the Company being optimistic the sleep business will return to and surpass pre-pandemic levels in 2021; the Company sharing full financial results and commentary in January; and the Company being extremely confident in its ability to continue with its Adjusted EBITDA trajectory; are intended to identify forward-looking information. All statements other than statements of historical fact may be forward-looking information. Such statements reflect the Company's current views and intentions with respect to future events, and current information available to the Company, and are subject to certain risks, uncertainties and assumptions. Many factors could cause the actual results, performance or achievements that may be expressed or implied by such forward-looking information to vary from those described herein should one or more of these risks or uncertainties materialize. Examples of such risk factors include, without limitation: credit; market (including equity, commodity, foreign exchange and interest rate); liquidity; operational (including technology and infrastructure); reputational; insurance; strategic; regulatory; legal; environmental; capital adequacy; the general business and economic conditions in the regions in which the Company operates; the ability of the Company to execute on key priorities, including the successful completion of acquisitions, business retention, and strategic plans and to attract, develop and retain key executives; difficulty integrating newly acquired businesses; the ability to implement business strategies and pursue business opportunities; low profit market segments; disruptions in or attacks (including cyber-attacks) on the Company's information technology, internet, network access or other voice or data communications systems or services; the evolution of various types of fraud or other criminal behavior to which the Company is exposed; the failure of third parties to comply with their obligations to the Company or its affiliates; the impact of new and changes to, or application of, current laws and regulations; decline of reimbursement rates; dependence on few payors; possible new drug discoveries; a novel business model; dependence on key suppliers; granting of permits and licenses in a highly regulated business; the overall difficult litigation environment, including in the U.S.; increased competition; changes in foreign currency rates; increased funding costs and market volatility due to market illiquidity and competition for funding; the availability of funds and resources to pursue operations; critical accounting estimates and changes to accounting standards, policies, and methods used by the Company; the occurrence of natural and unnatural catastrophic events and claims resulting from such events; and risks related to COVID-19 including various recommendations, orders and measures of governmental authorities to try to limit the pandemic, including travel restrictions, border closures, non-essential business closures, quarantines, self-isolations, shelters-in-place and social distancing, disruptions to markets, economic activity, financing, supply chains and sales channels, and a deterioration of general economic conditions including a possible national or global recession; as well as those risk factors discussed or referred to in the Company’s disclosure documents filed with the securities regulatory authorities in certain provinces of Canada and available at www.sedar.com. Should any factor affect the Company in an unexpected manner, or should assumptions underlying the forward-looking information prove incorrect, the actual results or events may differ materially from the results or events predicted. Any such forward-looking information is expressly qualified in its entirety by this cautionary statement. Moreover, the Company does not assume responsibility for the accuracy or completeness of such forward-looking information. The forward-looking information included in this press release is made as of the date of this press release and the Company undertakes no obligation to publicly update or revise any forward-looking information, other than as required by applicable law.
Non-GAAP Measures
This press release refers to “Adjusted EBITDA” which is a non-GAAP and non-IFRS financial measure that does not have a standardized meaning prescribed by GAAP or IFRS. The Company’s presentation of this financial measure may not be comparable to similarly titled measures used by other companies. This financial measure is intended to provide additional information to investors concerning the Company’s performance. Adjusted EBITDA is defined as EBITDA excluding stock-based compensation. Adjusted EBITDA is a non-IFRS measure the Company uses as an indicator of financial health and excludes several items which may be useful in the consideration of the financial condition of the Company, including interest expense, income taxes, depreciation, amortization, stock-based compensation, and change in fair value of debentures and financial derivatives. The following table shows our non-IFRS measure (Adjusted EBITDA) reconciled to our net income for the indicated period:
Three months ended
September 30, 2020 ($ in millions) |
||||
Net income (loss) | $ | (3.0) – (2.7) | ||
Loss from discontinued operations | 0.7 – 0.8 | |||
Income (loss) from continuing operations | (2.3) – (1.9) | |||
Add back: | ||||
Depreciation and amortization | 4.9 – 4.9 | |||
Interest expense, net | 0.6 – 0.6 | |||
Change in fair value of derivative and other financial costs | 2.3 – 2.4 | |||
Provision for income taxes | 0.1 – 0.1 | |||
EBITDA | $ | 5.6 – 6.1 | ||
Stock-based compensation | 0.0 – 0.0 | |||
Adjusted EBITDA | $ | 5.6 – 6.1 |
Preliminary Financial Metrics
This press release contains certain pre-released third quarter financial metrics. The third quarter financial metrics contained in this press release are preliminary and represent the most current information available to the Company's management, as financial closing procedures for the three and nine months ended September 30, 2020 are not yet complete. The Company's actual consolidated financial statements for such period may result in material changes to the financial metrics summarized in this press release (including by any one financial metric, or all of the financial metrics, being below or above the figures indicated) as a result of the completion of normal quarter end accounting procedures and adjustments, and also what one might expect to be in the final consolidated financial statements based on the financial metrics summarized in this press release. Although the Company believes the expectations reflected in this press release are based upon reasonable assumptions, the Company can give no assurance that actual results will not differ materially from these expectations.
Unless otherwise specified, all dollar amounts in this press release are expressed in Canadian dollars.
Neither the TSX Venture Exchange nor its Regulation Services Provider (as that term is defined in the policies of the TSX Venture Exchange) accepts responsibility for the adequacy or accuracy of this release.
For further information please visit our website at www.protechhomemedical.com, or contact:
Cole Stevens
VP of Corporate Development
Protech Home Medical Corp.
859-300-6455
cole.stevens@myphm.com
Gregory Crawford
Chief Executive Officer
Protech Home Medical Corp.
859-300-6455
investorinfo@myphm.com
Exhibit 99.71
PROTECH HOME MEDICAL ANNOUNCES NEW INDEPENDENT BOARD MEMBER
Dr. Kevin A. Carter Appointed to Board of Directors
Cincinnati, Ohio – December 9, 2020 – Protech Home Medical Corp. (“Protech” or the “Company”) (TSXV: PTQ) (OTCQX: PTQQF) a U.S. based leader in the home medical equipment industry, focused on end-to-end respiratory care, announced today that Dr. Kevin A. Carter has joined the board of directors of the Company as an independent director.
Kevin A. Carter, DO, FAASM, is Board Certified in Sleep Medicine by the American Board of Family Medicine; he is also Board Certified in Family Medicine. Before establishing his current practice, Dr. Carter served as Medical Director at the Martin Army Sleep Medicine Center at Fort Benning, Georgia. Prior to this appointment, he served as a United States Army Field Surgeon, with service including deployment in Iraq. Currently, through the Carter Sleep Center, he offers full-spectrum sleep medicine evaluations, diagnosis, and treatments.
Dr. Carter holds the degree of Fellow by the American Academy of Sleep Medicine, a recognition that he has met the highest standards in the practice of sleep medicine.
Dr. Carter is a graduate of the Ohio University Heritage College of Osteopathic Medicine. He completed a Family Medicine residency at DeWitt Army Community Hospital and Sleep Medicine fellowship at Walter Reed Army Medical Center. He is also an active member of both the American Academy of Sleep Medicine and the American Academy of Family Physicians.
“The board is pleased to welcome Dr. Carter as our newest independent director, during such an important period of time in the Company’s history; Dr. Carter’s wealth of experience will be invaluable to us as we constantly seek to evolve our patient centric approach. Moreover, Dr. Carter’s expertise in Sleep Medicine will provide meaningful insights as we continue to grow and position our entire sleep business, in particular on the heels of our recent closing of the acquisition of Sleep, LLC,” commented Greg Crawford, CEO and Chairman of Protech. “This appointment reflects our commitment to building a strong and diverse board of directors to help the Company execute on its long-term growth strategy and continue to build shareholder value.”
Dr. Kevin A. Carter added, “I am excited to join the board of directors of a thriving at-home clinical respiratory company at such an important time. It is at-home providers focused on superior patient care like Protech, that do so much to assist hospital systems gain bed capacity by getting patients discharged to the home or treated in the home to begin with. During this chapter in our lives, it has never been so crucial to our healthcare system, and I truly believe this will have long lasting effects on the industry. Coupled with the demographics in the United States, there is no question the need for in-home healthcare will continue to surge for many years to come. Protech has the right infrastructure, team, and knowledge to seize the moment and I am proud to be associated with Protech, utilizing my skillset and background to help the company flourish.”
In connection with his appointment, Dr. Carter has been granted 200,000 incentive stock options exercisable at $1.54 per share vesting over a four year period and expiring on December 7, 2025. The options and underlying shares are subject to a four month hold.
The appointment of Dr. Carter expands the Company’s board of directors to four members, three of whom are independent.
ABOUT PROTECH HOME MEDICAL
The Company provides in-home monitoring and disease management services including end-to-end respiratory solutions for patients in the United States healthcare market. It seeks to continue to expand its offerings to include the management of several chronic disease states focusing on patients with heart or pulmonary disease, sleep disorders, reduced mobility and other chronic health conditions. The primary business objective of the Company is to create shareholder value by offering a broader range of services to patients in need of in-home monitoring and chronic disease management. The Company’s organic growth strategy is to increase annual revenue per patient by offering multiple services to the same patient, consolidating the patient’s services and making life easier for the patient.
The securities referred to in this news release have not been, nor will they be, registered under the United States Securities Act of 1933, as amended, and may not be offered or sold within the United States or to, or for the account or benefit of, U.S. persons absent U.S. registration or an applicable exemption from the U.S. registration requirements. This news release does not constitute an offer for sale of securities, nor a solicitation for offers to buy any securities. Any public offering of securities in the United States must be made by means of a prospectus containing detailed information about the company and management, as well as financial statements.
Neither the TSX Venture Exchange nor its Regulation Services Provider (as that term is defined in the policies of the TSX Venture Exchange) accepts responsibility for the adequacy or accuracy of this release.
For further information please visit our website at www.protechhomemedical.com, or contact:
Cole Stevens
VP of Corporate Development
Protech Home Medical Corp.
859-300-6455
cole.stevens@myphm.com
Gregory Crawford
Chief Executive Officer
Protech Home Medical Corp.
859-300-6455
investorinfo@myphm.com
Exhibit 99.72
News Release dated December 11, 2020
PROTECH HOME MEDICAL TO PRESENT AT THE 13TH ANNUAL LD MICRO MAIN EVENT CONFERENCE
WEBCASTED PRESENTATION TO BE HELD MONDAY DECEMBER 14TH AT 11AM EDT/8AM PDT
Cincinnati, Ohio – December 11, 2020 – Protech Home Medical Corp. (the “Company” or “Protech”) (TSXV: PTQ) (OTCQX: PTQQF), a U.S. based leader in the home medical equipment industry, focused on end-to-end respiratory care, today announced that it will be presenting at the 13th annual LD Micro Main Event investor conference December 14th at 11am EDT/ 8am PDT. Greg Crawford, CEO of Protech will be presenting to a live, virtual audience.
Webcasted Presentation
Event: 13th Annual
LD Micro Main Event
Date: Monday, December 14, 2020
Time: 11:00am EDT / 8:00am PDT
Register here: ve.mysequire.com/
The Main Event will feature a new and unique format, with companies presenting for 10 minutes, followed by 10 minutes of Q&A by a panel of investors and analysts.
"The time has finally come to do something different in the virtual conference world. Let’s see if we can pull off something that can be enjoyed by both executives and investors alike,” stated Chris Lahiji, Founder of LD, now a wholly owned subsidiary of SRAX, Inc.
The Main Event will take place on December 14th and 15th, exclusively on the Sequire Virtual Events platform.
View Protech’s profile here: https://www.ldmicro.com/profile/PTQQF
About LD Micro/SEQUIRE
LD Micro began in 2006 with the sole purpose of being an independent resource to the microcap world. What started as a newsletter highlighting unique companies, has transformed into the pre-eminent event platform in the space. For more information, please visit ldmicro.com.
The upcoming Main Event will be highlighting a new format that will benefit both executives and the investors tuning in from all over the globe.
In September 2020, LD Micro. Inc. was acquired by SRAX, Inc., a financial technology company that unlocks data and insights for publicly traded companies. Through its premier investor intelligence and communications platform, Sequire , companies can track their investors’ behaviors and trends and use those insights to engage current and potential investors across marketing channels. For more information on SRAX, visit srax.com and mysequire.com.
ABOUT PROTECH HOME MEDICAL
The Company provides in-home monitoring and disease management services including end-to-end respiratory solutions for patients in the United States healthcare market. It seeks to continue to expand its offerings to include the management of several chronic disease states focusing on patients with heart or pulmonary disease, sleep disorders, reduced mobility and other chronic health conditions. The primary business objective of the Company is to create shareholder value by offering a broader range of services to patients in need of in-home monitoring and chronic disease management. The Company’s organic growth strategy is to increase annual revenue per patient by offering multiple services to the same patient, consolidating the patient’s services and making life easier for the patient.
Forward-Looking Statements
Certain statements contained in this press release constitute "forward-looking information" as such term is defined in applicable Canadian securities legislation. The words "may", "would", "could", "should", "potential", "will", "seek", "intend", "plan", "anticipate", "believe", "estimate", "expect" and similar expressions as they relate to the Company, including: the Company presenting at the event and posting material on its website; and the Company’s plans to be very active on the capital markets front including attending U.S. and Canadian based investor conferences; and are intended to identify forward-looking information. All statements other than statements of historical fact may be forward-looking information. Such statements reflect the Company's current views and intentions with respect to future events, and current information available to the Company, and are subject to certain risks, uncertainties and assumptions. Many factors could cause the actual results, performance or achievements that may be expressed or implied by such forward-looking information to vary from those described herein should one or more of these risks or uncertainties materialize. Examples of such risk factors include, without limitation: credit; market (including equity, commodity, foreign exchange and interest rate); liquidity; operational (including technology and infrastructure); reputational; insurance; strategic; regulatory; legal; environmental; capital adequacy; the general business and economic conditions in the regions in which the Company operates; the ability of the Company to execute on key priorities, including the successful completion of acquisitions, business retention, and strategic plans and to attract, develop and retain key executives; difficulty integrating newly acquired businesses; the ability to implement business strategies and pursue business opportunities; low profit market segments; disruptions in or attacks (including cyber-attacks) on the Company's information technology, internet, network access or other voice or data communications systems or services; the evolution of various types of fraud or other criminal behavior to which the Company is exposed; the failure of third parties to comply with their obligations to the Company or its affiliates; the impact of new and changes to, or application of, current laws and regulations; decline of reimbursement rates; dependence on few payors; possible new drug discoveries; a novel business model; dependence on key suppliers; granting of permits and licenses in a highly regulated business; the overall difficult litigation environment, including in the U.S.; increased competition; changes in foreign currency rates; increased funding costs and market volatility due to market illiquidity and competition for funding; the availability of funds and resources to pursue operations; critical accounting estimates and changes to accounting standards, policies, and methods used by the Company; the occurrence of natural and unnatural catastrophic events and claims resulting from such events; and risks related to COVID-19 including various recommendations, orders and measures of governmental authorities to try to limit the pandemic, including travel restrictions, border closures, non-essential business closures, quarantines, self-isolations, shelters-in-place and social distancing, disruptions to markets, economic activity, financing, supply chains and sales channels, and a deterioration of general economic conditions including a possible national or global recession; as well as those risk factors discussed or referred to in the Company’s disclosure documents filed with the securities regulatory authorities in certain provinces of Canada and available at www.sedar.com. Should any factor affect the Company in an unexpected manner, or should assumptions underlying the forward-looking information prove incorrect, the actual results or events may differ materially from the results or events predicted. Any such forward-looking information is expressly qualified in its entirety by this cautionary statement. Moreover, the Company does not assume responsibility for the accuracy or completeness of such forward-looking information. The forward-looking information included in this press release is made as of the date of this press release and the Company undertakes no obligation to publicly update or revise any forward-looking information, other than as required by applicable law.
Neither the TSX Venture Exchange nor its Regulation Services Provider (as that term is defined in the policies of the TSX Venture Exchange) accepts responsibility for the adequacy or accuracy of this release.
For further information please visit our website at www.protechhomemedical.com, or contact:
Cole Stevens
VP of Corporate Development
Protech Home Medical Corp.
859-300-6455
cole.stevens@myphm.com
Gregory Crawford
Chief Executive Officer
Protech Home Medical Corp.
859-300-6455
investorinfo@myphm.com
Exhibit 99.73
News Release dated January 5, 2021
PROTECH ANNOUNCES EXECUTION OF LOI TO ACQUIRE A PROFITABLE LEADING SUPPLIER
OF RESPIRATORY THERAPY PRODUCTS AND SERVICES IN THE SOUTHEASTERN U.S.
TARGET HAS $7 MILLION IN ANNUALIZED REVENUES AND WOULD ADD OVER 10,000 ACTIVE PATIENTS
OVER 5,000 PATIENTS WOULD ENTER PROTECH’S EXISTING SUBSCRIPTION BASED RESUPPLY MODEL
Cincinnati, Ohio – January 5, 2021 – Protech Home Medical Corp. (“Protech” or the “Company”) (TSXV: PTQ), (OTCQX: PTQQF), a U.S. based leader in the home medical equipment industry, focused on end-to-end respiratory care, today announced it has executed a non-binding letter of intent (the “LOI”) to acquire a private respiratory care company in the Southern United States reporting unaudited trailing 12-month annual revenues of approximately $7 million, positive adjusted EBITDA, and positive net income.
Acquisition Details
The target company has been a leader in the respiratory home care services industry within the area it operates in the Southern United States for over 20 years. The target company would serve as an entry for Protech into the new Southern State, adding over 10,000 active patients and a location within 10 minutes of a major metropolitan hub. Protech would begin to build its presence in this new geography by organically leveraging its existing infrastructure and looking for additional bolt-on opportunities. The target company has a heavily weighted respiratory product mix at over 85%, possessing a large selection of respiratory and home medical equipment to meet the needs of today's patients at home. The staff delivers on a high touch service model, aligned with Protech’s existing model, and is continually educating their patient base to ensure strong compliance of equipment. Moreover, the target company has a stable and diverse payor mix with no more than 50% coming from a particular payor source. In addition, the target company would give Protech the opportunity to add over 5,000 patients from its patient base to Protech’s existing subscription-based resupply program and Protech expects it would derive strong revenue synergies from this initiative.
The acquisition is expected to increase Protech’s annual revenues by approximately $7 million. Leveraging existing infrastructure, Protech expects to achieve additional revenue and EBITDA generated from organic growth, cross selling and corporate synergies.
According to the LOI, Protech expects to close the acquisition for cash at a reasonable multiple that would immediately be accretive to EBITDA and net income. Closing of the acquisition is subject to final due diligence, final negotiation and execution of a definitive purchase agreement and all necessary approvals. Closing is anticipated to be within the next 30 days.
“We are extremely excited to have executed an LOI that would expand our geographical footprint further into the Southern portion of the United States,” said Greg Crawford, Chairman and CEO of Protech. “The acquisition would give us a foundation to build from in the new State with over 10,000 active patients, and a location near a major metropolitan hub, which we would plan to grow both organically and inorganically over time. Post-closing, we would plan to seize on a significant opportunity by adding over 5,000 patients to our existing robust subscription-based resupply model. This acquisition would be immediately accretive to Protech’s EBITDA, overall profitability and adds $7 million dollars to the top-line which would bring us to over $130 million in run-rate revenue. We remain focused on strategically layering on complimentary respiratory focused businesses to our strong infrastructure where we can quickly deploy our technology driven model to enhance sales, margins, and patient count over time. At this time, our acquisition pipeline remains robust and we expect 2021 to be a very busy year for Protech as we scale our organization by further penetrating existing markets as well as entering new markets.”
Chief Financial Officer, Hardik Mehta added, “We are delighted to have executed on yet another LOI for a profitable respiratory focused company, which would help us strategically scale our business into a new State. Our focus continues to be on profitable $5 to $20+ million-dollar top-line companies, and we have a very deep pipeline of targets at various stages of due-diligence. Post-closing, our balance sheet would remain in exceptional condition and we will continue to be aggressive in our acquisition plan. We look forward to a potential closing on this exciting respiratory care company and will work diligently to integrate the business onto the Protech platform.”
Additional information will be released by the Company as it occurs. There can be no assurance that any acquisitions (including the particular acquisition contemplated herein) will be completed or the timing of any acquisitions.
ABOUT PROTECH HOME MEDICAL CORP.
The Company provides in-home monitoring and disease management services including end-to-end respiratory solutions for patients in the United States healthcare market. It seeks to continue to expand its offerings to include the management of several chronic disease states focusing on patients with heart or pulmonary disease, sleep disorders, reduced mobility and other chronic health conditions. The primary business objective of the Company is to create shareholder value by offering a broader range of services to patients in need of in-home monitoring and chronic disease management. The Company’s organic growth strategy is to increase annual revenue per patient by offering multiple services to the same patient, consolidating the patient’s services and making life easier for the patient.
Forward-Looking Statements
Certain statements contained in this press release constitute "forward-looking information" as such term is defined in applicable Canadian securities legislation. The words "may", "would", "could", "should", "potential", "will", "seek", "intend", "plan", "anticipate", "believe", "estimate", "expect" and similar expressions as they relate to the Company, including: the Company closing the acquisition and the anticipated financial impact (revenue, EBITDA, net income) of the acquisition on Protech’s financial results; the acquisition resulting in cross selling and corporate synergies; closing of the acquisition within the next 30 days; the acquisition expected to increase Protech’s annual revenues by approximately $7 million; Protech expecting to close the acquisition for cash at a reasonable multiple that would immediately be accretive to EBITDA and net income; Protech expecting 2021 to be a very busy year for Protech through penetrating existing markets and entering new markets; and the Company closing additional acquisitions; are intended to identify forward-looking information. All statements other than statements of historical fact may be forward-looking information. Such statements reflect the Company's current views and intentions with respect to future events, and current information available to the Company, and are subject to certain risks, uncertainties and assumptions, including: receipt of all necessary approvals for the acquisition; the Company successfully completing the negotiation of a definitive purchase agreement and all closing conditions being waived or satisfied in a timely manner; the definitive purchase agreement being executed; and the Company successfully identified, negotiating and completing additional acquisitions, including accretive acquisitions. Many factors could cause the actual results, performance or achievements that may be expressed or implied by such forward-looking information to vary from those described herein should one or more of these risks or uncertainties materialize. Examples of such risk factors include, without limitation: credit; market (including equity, commodity, foreign exchange and interest rate); liquidity; operational (including technology and infrastructure); reputational; insurance; strategic; regulatory; legal; environmental; capital adequacy; the general business and economic conditions in the regions in which the Company operates; the ability of the Company to execute on key priorities, including the successful completion of acquisitions, business retention, and strategic plans and to attract, develop and retain key executives; difficulty integrating newly acquired businesses; the ability to implement business strategies and pursue business opportunities; low profit market segments; disruptions in or attacks (including cyber-attacks) on the Company's information technology, internet, network access or other voice or data communications systems or services; the evolution of various types of fraud or other criminal behavior to which the Company is exposed; the failure of third parties to comply with their obligations to the Company or its affiliates; the impact of new and changes to, or application of, current laws and regulations; decline of reimbursement rates; dependence on few payors; possible new drug discoveries; a novel business model; dependence on key suppliers; granting of permits and licenses in a highly regulated business; the overall difficult litigation environment, including in the U.S.; increased competition; changes in foreign currency rates; increased funding costs and market volatility due to market illiquidity and competition for funding; the availability of funds and resources to pursue operations; critical accounting estimates and changes to accounting standards, policies, and methods used by the Company; the occurrence of natural and unnatural catastrophic events and claims resulting from such events; and risks related to COVID-19 including various recommendations, orders and measures of governmental authorities to try to limit the pandemic, including travel restrictions, border closures, non-essential business closures, quarantines, self-isolations, shelters-in-place and social distancing, disruptions to markets, economic activity, financing, supply chains and sales channels, and a deterioration of general economic conditions including a possible national or global recession; as well as those risk factors discussed or referred to in the Company’s disclosure documents filed with the securities regulatory authorities in certain provinces of Canada and available at www.sedar.com. Should any factor affect the Company in an unexpected manner, or should assumptions underlying the forward-looking information prove incorrect, the actual results or events may differ materially from the results or events predicted. Any such forward-looking information is expressly qualified in its entirety by this cautionary statement. Moreover, the Company does not assume responsibility for the accuracy or completeness of such forward-looking information. The forward-looking information included in this press release is made as of the date of this press release and the Company undertakes no obligation to publicly update or revise any forward-looking information, other than as required by applicable law.
Unless otherwise specified, all dollar amounts in this press release are expressed in Canadian dollars.
Neither the TSX Venture Exchange nor its Regulation Services Provider (as that term is defined in the policies of the TSX Venture Exchange) accepts responsibility for the adequacy or accuracy of this release.
For further information please visit our website at www.protechhomemedical.com, or contact:
Cole Stevens
VP of Corporate Development
Protech Home Medical Corp.
859-300-6455
cole.stevens@myphm.com
Gregory Crawford
Chief Executive Officer
Protech Home Medical Corp.
859-300-6455
investorinfo@myphm.com
Exhibit 99.74
PROTECH HOME MEDICAL TO PARTICIPATE AT
THE SIDOTI WINTER INVESTOR
CONFERENCE ON JANUARY 13-14
SIDOTI WEBCASTED PRESENTATION TO BE HELD WEDNESDAY, JANUARY 13
Cincinnati, Ohio – January 6, 2021 – Protech Home Medical Corp. (the “Company” or “Protech”) (TSXV:PTQ; OTCQX:PTQQF), a U.S. based leader in the home medical equipment industry, focused on end-to-end respiratory care, today announced that members of its management team will host a webcasted presentation and participate in 1x1 meetings at the upcoming Sidoti Winter 2021 Investor Conference on January 13-14, 2021.
Webcasted Presentation
Event: | Sidoti Winter 2021 Investor Conference |
Date: | Wednesday, January 13, 2021 |
Time: | 10:00 a.m. (ET) |
The live webcast of the Company’s presentation will be available by visiting the investors' section of the Company’s website at www.protechhomemedical.com. The webcast will also be available for replay on the Company’s website following the event.
“We continue to be active in engaging with current and prospective shareholders on both sides of the border in order to share our substantial progress to date and vision for driving future success. Additionally, we are excited to meaningfully enhance our presence within the U.S. capital markets sphere in 2021,” commented Greg Crawford, CEO, and Chairman of Protech.
ABOUT PROTECH HOME MEDICAL
The Company provides in-home monitoring and disease management services including end-to-end respiratory solutions for patients in the United States healthcare market. It seeks to continue to expand its offerings to include the management of several chronic disease states focusing on patients with heart or pulmonary disease, sleep disorders, reduced mobility and other chronic health conditions. The primary business objective of the Company is to create shareholder value by offering a broader range of services to patients in need of in-home monitoring and chronic disease management. The Company’s organic growth strategy is to increase annual revenue per patient by offering multiple services to the same patient, consolidating the patient’s services and making life easier for the patient.
Forward-Looking Statements
Certain statements contained in this press release constitute "forward-looking information" as such term is defined in applicable Canadian securities legislation. The words "may", "would", "could", "should", "potential", "will", "seek", "intend", "plan", "anticipate", "believe", "estimate", "expect" and similar expressions as they relate to the Company, including: attending the virtual conference; and the enhancing its presence within the U.S. capital markets sphere in 2021; are intended to identify forward-looking information. All statements other than statements of historical fact may be forward-looking information. Such statements reflect the Company's current views and intentions with respect to future events, and current information available to the Company, and are subject to certain risks, uncertainties and assumptions. Many factors could cause the actual results, performance or achievements that may be expressed or implied by such forward-looking information to vary from those described herein should one or more of these risks or uncertainties materialize. Examples of such risk factors include, without limitation: credit; market (including equity, commodity, foreign exchange and interest rate); liquidity; operational (including technology and infrastructure); reputational; insurance; strategic; regulatory; legal; environmental; capital adequacy; the general business and economic conditions in the regions in which the Company operates; the ability of the Company to execute on key priorities, including the successful completion of acquisitions, business retention, and strategic plans and to attract, develop and retain key executives; difficulty integrating newly acquired businesses; the ability to implement business strategies and pursue business opportunities; low profit market segments; disruptions in or attacks (including cyber-attacks) on the Company's information technology, internet, network access or other voice or data communications systems or services; the evolution of various types of fraud or other criminal behavior to which the Company is exposed; the failure of third parties to comply with their obligations to the Company or its affiliates; the impact of new and changes to, or application of, current laws and regulations; decline of reimbursement rates; dependence on few payors; possible new drug discoveries; a novel business model; dependence on key suppliers; granting of permits and licenses in a highly regulated business; the overall difficult litigation environment, including in the U.S.; increased competition; changes in foreign currency rates; increased funding costs and market volatility due to market illiquidity and competition for funding; the availability of funds and resources to pursue operations; critical accounting estimates and changes to accounting standards, policies, and methods used by the Company; the occurrence of natural and unnatural catastrophic events and claims resulting from such events; and risks related to COVID-19 including various recommendations, orders and measures of governmental authorities to try to limit the pandemic, including travel restrictions, border closures, non-essential business closures, quarantines, self-isolations, shelters-in-place and social distancing, disruptions to markets, economic activity, financing, supply chains and sales channels, and a deterioration of general economic conditions including a possible national or global recession; as well as those risk factors discussed or referred to in the Company’s disclosure documents filed with the securities regulatory authorities in certain provinces of Canada and available at www.sedar.com. Should any factor affect the Company in an unexpected manner, or should assumptions underlying the forward-looking information prove incorrect, the actual results or events may differ materially from the results or events predicted. Any such forward-looking information is expressly qualified in its entirety by this cautionary statement. Moreover, the Company does not assume responsibility for the accuracy or completeness of such forward-looking information. The forward-looking information included in this press release is made as of the date of this press release and the Company undertakes no obligation to publicly update or revise any forward-looking information, other than as required by applicable law.
Neither the TSX Venture Exchange nor its Regulation Services Provider (as that term is defined in the policies of the TSX Venture Exchange) accepts responsibility for the adequacy or accuracy of this release.
For further information please visit our website at www.protechhomemedical.com, or contact:
Cole Stevens
VP of Corporate Development
Protech Home Medical Corp.
859-300-6455
cole.stevens@myphm.com
Gregory Crawford
Chief Executive Officer
Protech Home Medical Corp.
859-300-6455
investorinfo@myphm.com
Exhibit 99.75
PROTECH HOME MEDICAL SUBMITS APPLICATION TO LIST ON NASDAQ
Cincinnati, Ohio – January 13, 2020 – Protech Home Medical Corp. (“Protech” or the “Company”) (TSXV:PTQ; OTCQX:PTQQF) a U.S. based leader in the home medical equipment industry, focused on end-to-end respiratory care, is pleased to announced that it has applied to list its common shares on the NASDAQ Capital Market (“NASDAQ”).
In advance of a potential listing on the NASDAQ, Protech will file a Form 40-F Registration Statement with the United States Securities and Exchange Commission. The listing of the Company’s common shares on the NASDAQ remains subject to the approval of the NASDAQ and the satisfaction of all applicable listing and regulatory requirements. While the Company intends to satisfy all of the applicable listing criteria, no assurance can be given that its application will be approved. During the NASDAQ review process, and in the event of listing on NASDAQ, the Company’s common shares will continue to trade in Canada on the TSX Venture Exchange under its symbol “PTQ”.
“The submission of our application to list on the NASDAQ is a reflection of the tireless effort of the entire Protech team during a continued period of rapid growth for our company. This marks a significant milestone in our Company’s life cycle, and we are excited about substantially increasing our exposure and accessibility to the U.S. capital markets sphere and to U.S. based institutional and retail investors.” said Greg Crawford, Chairman and CEO of Protech. “A NASDAQ listing, coupled with our aggressive expansion plans is expected to continue to lead us down the path of becoming a premier technology driven clinical respiratory company in the United States.”
Chief Financial Officer, Hardik Mehta added, “The evolution of Protech over the past two years has been evidenced by our continued record financial and operating performance. With over $28 million in cash and an untapped US$20 million revolving credit facility with CIT Bank’s Healthcare Division, we are in the strongest position in the history of the company to aggressively match our organizational growth with our level of capital markets exposure. We feel having a tier-one listing on a prominent U.S. exchange such as NASDAQ will allow us to meet this goal as we are excited to be active in sharing our company’s ongoing success on both sides of the border in an effort to further enhance shareholder value.”
Protech provides home delivery and efficient online set-up of equipment for primarily chronic conditions. The Company, based in the United States, operates out of 48 locations in 10 states with over 17,000 referring physicians and approximately 110,000 current active patients.
ABOUT PROTECH HOME MEDICAL
The Company provides in-home monitoring and disease management services including end-to-end respiratory solutions for patients in the United States healthcare market. It seeks to continue to expand its offerings to include the management of several chronic disease states focusing on patients with heart or pulmonary disease, sleep disorders, reduced mobility and other chronic health conditions. The primary business objective of the Company is to create shareholder value by offering a broader range of services to patients in need of in-home monitoring and chronic disease management. The Company’s organic growth strategy is to increase annual revenue per patient by offering multiple services to the same patient, consolidating the patient’s services and making life easier for the patient.
Forward-Looking Statements
Certain statements contained in this press release constitute "forward-looking information" as such term is defined in applicable Canadian securities legislation. The words "may", "would", "could", "should", "potential", "will", "seek", "intend", "plan", "anticipate", "believe", "estimate", "expect" and similar expressions as they relate to the Company, including: listing on Nasdaq and the results of a Nasdaq listing; are intended to identify forward-looking information. All statements other than statements of historical fact may be forward-looking information. Such statements reflect the Company's current views and intentions with respect to future events, and current information available to the Company, and are subject to certain risks, uncertainties and assumptions, including, without limitation: the Company meeting Nasdaq listing standards; capital market participants responding to a Nasdaq listing as anticipated. Many factors could cause the actual results, performance or achievements that may be expressed or implied by such forward-looking information to vary from those described herein should one or more of these risks or uncertainties materialize. Examples of such risk factors include, without limitation: credit; market (including equity, commodity, foreign exchange and interest rate); liquidity; operational (including technology and infrastructure); reputational; insurance; strategic; regulatory; legal; environmental; capital adequacy; the general business and economic conditions in the regions in which the Company operates; the ability of the Company to execute on key priorities, including the successful completion of acquisitions, business retention, and strategic plans and to attract, develop and retain key executives; difficulty integrating newly acquired businesses; the ability to implement business strategies and pursue business opportunities; low profit market segments; disruptions in or attacks (including cyber-attacks) on the Company's information technology, internet, network access or other voice or data communications systems or services; the evolution of various types of fraud or other criminal behavior to which the Company is exposed; the failure of third parties to comply with their obligations to the Company or its affiliates; the impact of new and changes to, or application of, current laws and regulations; decline of reimbursement rates; dependence on few payors; possible new drug discoveries; a novel business model; dependence on key suppliers; granting of permits and licenses in a highly regulated business; the overall difficult litigation environment, including in the U.S.; increased competition; changes in foreign currency rates; increased funding costs and market volatility due to market illiquidity and competition for funding; the availability of funds and resources to pursue operations; critical accounting estimates and changes to accounting standards, policies, and methods used by the Company; the occurrence of natural and unnatural catastrophic events and claims resulting from such events; and risks related to COVID-19 including various recommendations, orders and measures of governmental authorities to try to limit the pandemic, including travel restrictions, border closures, non-essential business closures, quarantines, self-isolations, shelters-in-place and social distancing, disruptions to markets, economic activity, financing, supply chains and sales channels, and a deterioration of general economic conditions including a possible national or global recession; as well as those risk factors discussed or referred to in the Company’s disclosure documents filed with the securities regulatory authorities in certain provinces of Canada and available at www.sedar.com. Should any factor affect the Company in an unexpected manner, or should assumptions underlying the forward-looking information prove incorrect, the actual results or events may differ materially from the results or events predicted. Any such forward-looking information is expressly qualified in its entirety by this cautionary statement. Moreover, the Company does not assume responsibility for the accuracy or completeness of such forward-looking information. The forward-looking information included in this press release is made as of the date of this press release and the Company undertakes no obligation to publicly update or revise any forward-looking information, other than as required by applicable law.
Neither the TSX Venture Exchange nor its Regulation Services Provider (as that term is defined in the policies of the TSX Venture Exchange) accepts responsibility for the adequacy or accuracy of this release.
For further information please visit our website at www.protechhomemedical.com, or contact:
Cole Stevens
VP of Corporate Development
Protech Home Medical Corp.
859-300-6455
cole.stevens@myphm.com
Gregory Crawford
Chief Executive Officer
Protech Home Medical Corp.
859-300-6455
investorinfo@myphm.com
Exhibit 99.76
PROTECH HOME MEDICAL REPORTS STRONG FOURTH QUARTER AND RECORD AUDITED FULL YEAR FISCAL 2020 FINANCIAL RESULTS
POSTS Q4 REVENUE GROWTH OF 28% AND ADJUSTED EBITDA GROWTH OF 69%
Cincinnati, Ohio – February 1, 2021 – Protech Home Medical Corp. (“Protech” or the “Company”) (TSXV:PTQ; OTCQX:PTQQF), a U.S. based leader in the home medical equipment industry, focused on end-to-end respiratory care, today announced its fourth quarter and audited full year fiscal 2020 financial results and operational highlights for the period ended September 30, 2020. After a delay in receiving the auditors opinion, the financial statements of the Company for fiscal years ended September 30, 2020 and 2019 and accompanying Management Discussion & Analysis (MD&A) have now been filed and are now available at www.sedar.com.
Financial Highlights:
§ | Revenue for Q4 2020 was $25.0 million compared to $19.5 million for Q4 2019, representing a 28% increase in revenue year-over-year. Compared to Q3 2020, the Company experienced strong organic growth of 3%, excluding new acquisitions, in the fourth quarter, however the reported Canadian dollar revenue amount was slightly offset by a weakening of the U.S. dollar relative to the Canadian dollar. Additionally, from previously issued guidance $1.6 million revenue was reclassified as other income, as per the Company’s auditor’s request. | |
§ | Revenue for fiscal 2020 was $97.8 million compared to $81.0 million in fiscal 2019, a 21% increase year-over-year. | |
§ | Adjusted EBITDA for Q4 2020 was $5.9 million (23.7% margin), compared to $3.5 million (18.0% margin) for Q4 2019, representing a 69% increase year-over-year. | |
§ | Adjusted EBITDA for fiscal 2020 was $20.8 million, compared to $14.8 million for fiscal 2019, an increase of 41%. | |
§ | Cash flow from operations was $17.6 million for the twelve months ended September 30, 2020 compared to $11.1 million for the twelve months ended September 30, 2019. | |
§ | As at September 30, 2020, the Company had cash on hand of $39.0 million, compared to $12.9 million as at September 30, 2019. |
Operational Highlights:
§ | The Company’s customer base increased 20% year-over-year from 76,146 unique patients served in fiscal 2019 to 91,650 unique patients in fiscal 2020. | |
§ | The Company’s customer base increased 35% year-over-year from 32,797 unique patients served in the three months ended September 30, 2020 to 44,185 unique patients in the three months ended September 30, 2020 | |
§ | Through the Company’s continued use of technology and centralized intake processes, respiratory resupply set-ups and/or deliveries increased to 19,613 for the three months ended September 30, 2020, compared to 12,727 for the same period ended September 30, 2019, an increase of 54%. | |
§ | Increased the number of equipment set-ups to 68,909 in the quarter ended September 30, 2020 from 53,386 in the quarter ended September 30, 2019, an increase of 29%. | |
§ | During the second half of 2020, the Company’s sleep business regained momentum as stay-at-home orders were lifted across the states it operates in and the Company is confident that this vertical will surpass historical levels in 2021. | |
§ | Strong demand has continued into Q1 2021 for respiratory equipment, such as Ventilators and Oxygen Concentrators, as well as CPAP resupply and other supplies business. |
Subsequent Events to the twelve months ended September 30, 2020:
§ | On September 23, 2020, the Company acquired all of the issued and outstanding equity securities of Sleepwell, LLC (“Sleepwell”), a leader in sleep services in the State of Georgia with $13.0 million in revenue, adjusted EBITDA of $3.25 million, net income of $2.5 million and no debt. |
o | Entered new market in Dayton, Ohio, increased active patient count by over 15,000, and provided strong re-supply model in which the Company plans to grow substantially. | |
Protech derives $25 million from its re-supply subscription model and anticipates that growing to over $30 million with the full integration of Sleepwell, which is well underway. |
§ | On October 28, 2020, the CMS (Centers for Medicare and Medicaid Services) cancelled the 2021 Competitive Bidding Program for 13 Product Categories that was expected to begin on January 1, 2021. |
o | The cancellation of this program provided Protech with a clear margin outlook across its product mix and ensures patient base stability. | |
o | Additionally, the decision helps to ensure that there are no unnecessary barriers to the quality of care for patients, such as access to home respiratory products, durable medical equipment, and other needed supplies. |
§ | On December 9, 2020, the Company announced that Dr. Kevin A. Carter joined the board of directors of the Company as an independent director. |
o | Kevin A. Carter, DO, FAASM, is Board Certified in Sleep Medicine by the American Board of Family Medicine; he is also Board Certified in Family Medicine. | |
o | Dr. Carter served as Medical Director at the Martin Army Sleep Medicine Center at Fort Benning, Georgia. Prior to this appointment, he served as a United States Army Field Surgeon, with service including deployment in Iraq. Currently, through the Carter Sleep Center, he offers full-spectrum sleep medicine evaluations, diagnosis, and treatments. | |
o | Dr. Carter holds the degree of Fellow by the American Academy of Sleep Medicine, a recognition that he has met the highest standards in the practice of sleep medicine. |
Management Commentary:
“2020 was a transformational year for Protech, with a long list of milestones achieved to help drive sustained growth into the future,” said CEO and Chairman Greg Crawford. “I am so proud of our over 400 healthcare professionals for their tireless efforts during what was an extremely challenging year given the ongoing global pandemic. The operational excellence we experienced in 2020 is a direct reflection of the level of continuity across the entire organization, and I am incredibly excited for us to further build on our platform in 2021. Our fourth quarter results showcase the continued momentum across the entire business as our revenue and Adjusted EBITDA growth continued to be robust with continued margin expansion. The investments we have made in technology to remove friction points across the organization have aided in the robust nature of our results and our tele-health platform allowed for the interaction between our frontline workers and patients to continue seamlessly. As a result, we were able to capture the meaningful tailwinds that continue to present themselves. We believe this pandemic has underscored the importance of our mission, which is to be a dynamic clinical respiratory company, providing the growing number of communities we serve with exceptional accessibility and patient care.
In 2021, we will not rest on our laurels as there is still much work to be done to realize on all of our objectives. We will continue to work every day to ensure the care we provide is at the highest level possible as that is truly what drives us and has yielded the results we have had to date. The foundation which we have built will allow us to continue to execute on the tremendous opportunity that exists to further our footprint, unlock operational efficiencies and drive patient satisfaction. With continued focus, we believe we can continue to lower operational costs while offering a better patient experience for the more than 110,000 patients that we care for.
Finally, we are pleased to have announced an LOI on January 5, 2021 for a Southern based respiratory care company that would give Protech access to its 11th U.S. state. The target would add over 10,000 active patients, of which over 5,000 would enter our subscription-based re-supply program. We look forward to closing this acquisition in the coming weeks. Moreover, we are thrilled to have applied to list on NASDAQ and feel this will be a monumental value creator for new and existing shareholders. Creating awareness for our Company is crucial and we look forward to being active on both sides of the border in 2021. I’d like to once again thank the entire Protech team for their hard work each and every day as well as our stakeholders for all of their continued support.”
Chief Financial Officer, Hardik Mehta added, “We wrapped up 2020 in extraordinary shape, with record-breaking annual results, an exceptionally strong balance sheet, and a full M&A pipeline which we expect to make for a very busy 2021. Our run-rate revenue sits at over $125 million, not including the recent LOI announced, and we have upwardly revised our 5-year growth trajectory to reflect the continued success of our operations, and aggressive M&A plans. We are excited to see our top-line growth continue to accelerate far faster than the industry, and our Adjusted EBITDA margin breaching the 22% level. We remain committed to driving profitability and believe we are making meaningful progress to this end, which we believe will materialize as we move through 2021. With a pristine balance sheet, continued margin expansion and improving cash flows, we are in a position to be very aggressive with our acquisition strategy and are focused on accretive respiratory focused companies with $5-$20 million in revenue and double-digit EBITDA margins that allow us to expand our geographical reach. We are focused on building long-term shareholder value, and feel we have a successful organic and inorganic growth strategy that has us positioned to do so into the future.”
Nasdaq Listing Update:
In connection with the Company’s application for listing on the NASDAQ Capital Market, the Company is also working with its auditor on a review of fiscal 2020 financial statements not yet reviewed for inclusion in a Form 40-F Registration Statement to be filed with the United States Securities and Exchange Commission.
ABOUT PROTECH HOME MEDICAL CORP.
The Company provides in-home monitoring and disease management services including end-to-end respiratory solutions for patients in the United States healthcare market. It seeks to continue to expand its offerings to include the management of several chronic disease states focusing on patients with heart or pulmonary disease, sleep disorders, reduced mobility and other chronic health conditions. The primary business objective of the Company is to create shareholder value by offering a broader range of services to patients in need of in-home monitoring and chronic disease management. The Company’s organic growth strategy is to increase annual revenue per patient by offering multiple services to the same patient, consolidating the patient’s services and making life easier for the patient.
Forward-Looking Statements
Certain statements contained in this press release constitute "forward-looking information" as such term is defined in applicable Canadian securities legislation. The words "may", "would", "could", "should", "potential", "will", "seek", "intend", "plan", "anticipate", "believe", "estimate", "expect" and similar expressions as they relate to the Company, including: the Company being confident that its sleep business will exceed 2020 levels in 2021; the Company growing its patient count substantially; the Company growing its re-supply subscription model to over $30 million; the Company lowering operational costs while offering a better patient experience; the Company closing additional acquisitions, including the one announced on January 5, 2021 and the results of the proposed acquisition; and the Company filing a Form 40-F Registration Statement and the Company successfully listing on NASDAQ; are intended to identify forward-looking information. All statements other than statements of historical fact may be forward-looking information. Such statements reflect the Company's current views and intentions with respect to future events, and current information available to the Company, and are subject to certain risks, uncertainties and assumptions, including, without limitation: the Company successfully identifying, negotiating and completing one or more acquisitions, including conditions precedent for such acquisitions being satisfied; and current financial trends remaining at or above current levels in respect of anticipations for Adjusted EBITDA margin. Many factors could cause the actual results, performance or achievements that may be expressed or implied by such forward-looking information to vary from those described herein should one or more of these risks or uncertainties materialize. Examples of such risk factors include, without limitation: credit; market (including equity, commodity, foreign exchange and interest rate); liquidity; operational (including technology and infrastructure); reputational; insurance; strategic; regulatory; legal; environmental; capital adequacy; the general business and economic conditions in the regions in which the Company operates; the ability of the Company to execute on key priorities, including the successful completion of acquisitions, business retention, and strategic plans and to attract, develop and retain key executives; difficulty integrating newly acquired businesses; the ability to implement business strategies and pursue business opportunities; low profit market segments; disruptions in or attacks (including cyber-attacks) on the Company's information technology, internet, network access or other voice or data communications systems or services; the evolution of various types of fraud or other criminal behavior to which the Company is exposed; the failure of third parties to comply with their obligations to the Company or its affiliates; the impact of new and changes to, or application of, current laws and regulations; decline of reimbursement rates; dependence on few payors; possible new drug discoveries; a novel business model; dependence on key suppliers; granting of permits and licenses in a highly regulated business; the overall difficult litigation environment, including in the U.S.; increased competition; changes in foreign currency rates; increased funding costs and market volatility due to market illiquidity and competition for funding; the availability of funds and resources to pursue operations; critical accounting estimates and changes to accounting standards, policies, and methods used by the Company; the occurrence of natural and unnatural catastrophic events and claims resulting from such events; and risks related to COVID-19 including various recommendations, orders and measures of governmental authorities to try to limit the pandemic, including travel restrictions, border closures, non-essential business closures, quarantines, self-isolations, shelters-in-place and social distancing, disruptions to markets, economic activity, financing, supply chains and sales channels, and a deterioration of general economic conditions including a possible national or global recession; as well as those risk factors discussed or referred to in the Company’s disclosure documents filed with the securities regulatory authorities in certain provinces of Canada and available at www.sedar.com. Should any factor affect the Company in an unexpected manner, or should assumptions underlying the forward-looking information prove incorrect, the actual results or events may differ materially from the results or events predicted. Any such forward-looking information is expressly qualified in its entirety by this cautionary statement. Moreover, the Company does not assume responsibility for the accuracy or completeness of such forward-looking information. The forward-looking information included in this press release is made as of the date of this press release and the Company undertakes no obligation to publicly update or revise any forward-looking information, other than as required by applicable law.
Unless otherwise specified, all dollar amounts in this press release are expressed in Canadian dollars.
Non-GAAP Measures
This press release refers to “Adjusted EBITDA” which is a non-GAAP and non-IFRS financial measure that does not have a standardized meaning prescribed by GAAP or IFRS. The Company’s presentation of this financial measure may not be comparable to similarly titled measures used by other companies. This financial measure is intended to provide additional information to investors concerning the Company’s performance. Adjusted EBITDA is defined as EBITDA excluding stock-based compensation. Adjusted EBITDA is a Non-IFRS measure the Company uses as an indicator of financial health and excludes several items which may be useful in the consideration of the financial condition of the Company, including interest expense, income taxes, depreciation, amortization, stock-based compensation, goodwill impairment and change in fair value of debentures and financial derivatives. The following table shows our Non-IFRS measure (Adjusted EBITDA) reconciled to our net income for the indicated periods:
Three
Months Ended
Sept 30, 2020 |
Three
Months Ended
Sept 30, 2019 |
Fiscal
Year Ended
September 30, 2020 |
Fiscal
Year Ended
September 30, 2019 |
|||||||||||||
Net income (loss) | (2,164 | ) | 4,440 | (5,605 | ) | (9,141 | ) | |||||||||
Add back: | ||||||||||||||||
Depreciation and amortization | 4,925 | 4,270 | 19,565 | 13,969 | ||||||||||||
Interest expense (net of interest income) | 605 | 251 | 2,481 | 1,839 | ||||||||||||
Accretion Expense | 153 | 7 | 671 | |||||||||||||
Transaction costs – issuance of securities | 284 | 1,758 | 284 | 1,758 | ||||||||||||
Change in fair value of financial liabilities | 2,046 | (996 | ) | 3,546 | (1,129 | ) | ||||||||||
Loss on early extinguishment of debenture | - | - | - | 1,106 | ||||||||||||
Provision for income taxes | 79 | 135 | 172 | 269 | ||||||||||||
EBITDA | 5,775 | 9,971 | 20,450 | 9,342 | ||||||||||||
Stock-based compensation | 23 | 726 | 230 | 2,063 | ||||||||||||
Fraud related expenses | - | (8,172 | ) | - | 1,012 | |||||||||||
Acquisition Related Cost | 120 | 452 | 120 | 1,853 | ||||||||||||
Impairment of goodwill | - | 531 | - | 531 | ||||||||||||
Adjusted EBITDA | 5,918 | 3,508 | 20,800 | 14,801 | ||||||||||||
% of Net Revenue | 23.7 | % | 18.0 | % | 20.9 | % | 18.3 | % |
Management uses this non- IFRS measure as a key metric in the evaluation of the Company’s performance and the consolidated financial results. The Company believes this non- IFRS measure is useful to investors in their assessment of the operating performance and the valuation of the Company. In addition, this non- IFRS measure addresses questions the Company routinely receives from analysts and investors and, in order to assure that all investors have access to similar data, the Company has determined that it is appropriate to make this data available to all investors. However, non- IFRS financial measures are not prepared in accordance with IFRS, and the information is not necessarily comparable to other companies and should be considered as a supplement to, not a substitute for, or superior to, the corresponding measures calculated in accordance with IFRS.
Neither the TSX Venture Exchange nor its Regulation Services Provider (as that term is defined in the policies of the TSX Venture Exchange) accepts responsibility for the adequacy or accuracy of this release.
For further information please visit our website at www.protechhomemedical.com, or contact:
Cole Stevens
VP of Corporate Development
Protech Home Medical Corp.
859-300-6455
cole.stevens@myphm.com
Gregory Crawford
Chief Executive Officer
Protech Home Medical Corp.
859-300-6455
investorinfo@myphm.com
Exhibit 99.77
Protech Home Medical Announces DATE AND TIME
FOR Q4 and full year FISCAL 2020 CONFERENCE CALL and audio webcast
Cincinnati, Ohio – February 1, 2021 – Protech Home Medical Corp. (the “Company”) (TSXV: PTQ) (OTCQX: PTQQF), a U.S. based leader in the home medical equipment industry, focused on end-to-end respiratory care, today announced that it will host its Q4 and Full Year Fiscal 2020 earnings conference call and audio webcast on Tuesday, February 2, 2021 at 4:00 p.m. (EST).
Conference Call Details:
Tuesday, February 2, 2021 at 4:00 p.m. (EST).
Canada/US Toll Free: | 1 (800) 319 4610 |
International: | 1 (604) 638 5340 |
Audio Webcast Details:
The live audio webcast can be found on the investor section of the Company’s website through the following link:
https://protechhomemedical.com/conference_calls
ABOUT PROTECH HOME MEDICAL
The Company provides in-home monitoring and disease management services including end-to-end respiratory solutions for patients in the United States healthcare market. It seeks to continue to expand its offerings to include the management of several chronic disease states focusing on patients with heart or pulmonary disease, sleep disorders, reduced mobility and other chronic health conditions. The primary business objective of the Company is to create shareholder value by offering a broader range of services to patients in need of in-home monitoring and chronic disease management. The Company’s organic growth strategy is to increase annual revenue per patient by offering multiple services to the same patient, consolidating the patient’s services and making life easier for the patient.
Neither the TSX Venture Exchange nor its Regulation Services Provider (as that term is defined in the policies of the TSX Venture Exchange) accepts responsibility for the adequacy or accuracy of this release.
For further information please visit our website at www.protechhomemedical.com, or contact:
Cole Stevens
VP of Corporate Development
Protech Home Medical Corp.
859-300-6455
cole.stevens@myphm.com
Gregory Crawford
Chief Executive Officer
Protech Home Medical Corp.
859-300-6455
investorinfo@myphm.com
Exhibit 99.78
PROTECH ENTERS FLORIDA WITH ACCRETIVE ACQUISITION OF MAYHUGH’S MEDICAL EQUIPMENT
$7 MILLION IN ANNUALIZED REVENUES, IN EXCESS OF 15% ADJUSTED EBITDA MARGIN AND
INCREASES PROTECH’S ACTIVE PATIENT COUNT BY MORE THAN 10,000
5,000 PATIENTS TO IMMEDIATELY ENTER PROTECH’S SUBSCRIPTION RE-SUPPLY PLATFORM
Cincinnati, Ohio – February 2, 2021 – Protech Home Medical Corp. (“Protech” or the “Company”) (TSXV: PTQ), (OTCQX: PTQQF), a U.S. based leader in the home medical equipment industry, focused on end-to-end respiratory care, is pleased to announce that it has acquired Mayhugh’s Medical Equipment (“MME”), a company based in Florida, reporting unaudited trailing 12-month annual revenues of approximately $7 million, Adjusted EBITDA (defined below) of $1.2 million, and positive net income.
Acquisition Details
Excluding the impact of future acquisitions, and organic growth derived from continuing operations, we are pleased to share the following selected financial and operating metrics for Protech following the closing of the acquisition of MME:
· | Run-Rate Revenue of $130-$135 million; |
· | Run-Rate Adjusted EBITDA of $26-$30 million; |
· | 120,000 current active patients; |
· | 17,000 unique referrals; and |
· | 49 locations across 11 U.S. States. |
MME is a leader in the respiratory home care services industry in Northern Florida and will add over 10,000 active patients to Protech’s patient population. Furthermore, MME represents Protech’s entrance into its 11th U.S. State with its 49th location. MME gives Protech immediate access to Jacksonville, an attractive metro hub in which it will leverage its existing infrastructure to create significant cross selling and patient growth opportunities. The MME management team has successfully transitioned MME from a relatively small medical equipment company to a clinical respiratory company with its product mix at over 85% respiratory, possessing a large selection of respiratory and home medical equipment to meet the needs of today's patients at home. The staff delivers on a high touch service model, aligned with Protech’s existing model, and is continually educating their patient base to ensure strong compliance of equipment. In addition, MME gives Protech the ability to immediately add over 5,000 patients from its patient base to Protech’s existing subscription-based resupply program and Protech expects to derive strong revenue synergies from this initiative.
MME has a diverse payor mix with no more than 50% coming from a particular payor source.
Under the terms of the definitive purchase agreement, Protech acquired MME for total consideration of approximately $5.8 million. Post integration, it is expected that MME will increase Protech’s annual revenues by approximately $7 million and Adjusted EBITDA by $1.4 to $1.8 million. Leveraging existing infrastructure and payor contracts, Protech expects to achieve additional revenue generated from organic growth, cross selling and corporate synergies.
Management Commentary
“We are delighted to close on the acquisition of MME, which provides us with a solid foundation from which to grow in the State of Florida, representing a major milestone for our company,” said Greg Crawford, Chairman and CEO of Protech. “We are excited to add another turn-key respiratory home care operator to our family of companies, with MME being a logical fit for Protech. We expect a smooth integration process and will move quickly to capture the tremendous amount of synergies, beginning with adding 5,000 patients to our subscription re-supply model, which will provide an immediate revenue driver for us. MME is immediately accretive, similar to our deep pipeline of potential acquisition targets, which we expect to be very busy moving through the funnel in the months to come.”
Chief Financial Officer, Hardik Mehta added, “MME’s heavily weighted respiratory product mix, and diversification of the payor mix, provides Protech with a stable foundation to start its Florida operations. We are excited to have the opportunity to penetrate the attractive Jacksonville market and have already begun the integration process. We will look to grow our scale in Florida both organically and through strategic bolt-on opportunities that present themselves. We believe MME is just the beginning of what will be an aggressive acquisition pace for us over the remainder of 2021, including potential larger revenue opportunities as we look to accelerate our scale beyond the current run-rate revenue we have.”
The Company had originally announced a non-binding letter of intent with MME on January 5, 2021.
ABOUT PROTECH HOME MEDICAL CORP.
The Company provides in-home monitoring and disease management services including end-to-end respiratory solutions for patients in the United States healthcare market. It seeks to continue to expand its offerings to include the management of several chronic disease states focusing on patients with heart or pulmonary disease, sleep disorders, reduced mobility and other chronic health conditions. The primary business objective of the Company is to create shareholder value by offering a broader range of services to patients in need of in-home monitoring and chronic disease management. The Company’s organic growth strategy is to increase annual revenue per patient by offering multiple services to the same patient, consolidating the patient’s services and making life easier for the patient.
Forward-Looking Statements
Certain statements contained in this press release constitute "forward-looking information" as such term is defined in applicable Canadian securities legislation. The words "may", "would", "could", "should", "potential", "will", "seek", "intend", "plan", "anticipate", "believe", "estimate", "expect" and similar expressions as they relate to the Company, including: MME increasing Protech’s annual revenues by approximately $7 million and Adjusted EBITDA by $1.4-$1.8 million; Protech expecting to achieve additional revenue generated from organic growth, cross selling and corporate synergies; Protech expecting a smooth integration process; Protech expecting to be busy progressing with potential acquisition targets in the coming months; Protech growing its scale in Florida; Protech completing strategic bolt-on acquisitions; and Protech beginning an aggressive acquisition pace during the remainder of 2021, including with larger targets; are intended to identify forward-looking information. All statements other than statements of historical fact may be forward-looking information. Such statements reflect the Company's current views and intentions with respect to future events, and current information available to the Company, and are subject to certain risks, uncertainties and assumptions, including: MME’s financial performance in the next 12 months being the same or better than their trailing twelve months; and the Company successfully identified, negotiating and completing additional acquisitions, including accretive acquisitions. Many factors could cause the actual results, performance or achievements that may be expressed or implied by such forward-looking information to vary from those described herein should one or more of these risks or uncertainties materialize. Examples of such risk factors include, without limitation: credit; market (including equity, commodity, foreign exchange and interest rate); liquidity; operational (including technology and infrastructure); reputational; insurance; strategic; regulatory; legal; environmental; capital adequacy; the general business and economic conditions in the regions in which the Company operates; the ability of the Company to execute on key priorities, including the successful completion of acquisitions, business retention, and strategic plans and to attract, develop and retain key executives; difficulty integrating newly acquired businesses; the ability to implement business strategies and pursue business opportunities; low profit market segments; disruptions in or attacks (including cyber-attacks) on the Company's information technology, internet, network access or other voice or data communications systems or services; the evolution of various types of fraud or other criminal behavior to which the Company is exposed; the failure of third parties to comply with their obligations to the Company or its affiliates; the impact of new and changes to, or application of, current laws and regulations; decline of reimbursement rates; dependence on few payors; possible new drug discoveries; a novel business model; dependence on key suppliers; granting of permits and licenses in a highly regulated business; the overall difficult litigation environment, including in the U.S.; increased competition; changes in foreign currency rates; increased funding costs and market volatility due to market illiquidity and competition for funding; the availability of funds and resources to pursue operations; critical accounting estimates and changes to accounting standards, policies, and methods used by the Company; the occurrence of natural and unnatural catastrophic events and claims resulting from such events; and risks related to COVID-19 including various recommendations, orders and measures of governmental authorities to try to limit the pandemic, including travel restrictions, border closures, non-essential business closures, quarantines, self-isolations, shelters-in-place and social distancing, disruptions to markets, economic activity, financing, supply chains and sales channels, and a deterioration of general economic conditions including a possible national or global recession; as well as those risk factors discussed or referred to in the Company’s disclosure documents filed with the securities regulatory authorities in certain provinces of Canada and available at www.sedar.com. Should any factor affect the Company in an unexpected manner, or should assumptions underlying the forward-looking information prove incorrect, the actual results or events may differ materially from the results or events predicted. Any such forward-looking information is expressly qualified in its entirety by this cautionary statement. Moreover, the Company does not assume responsibility for the accuracy or completeness of such forward-looking information. The forward-looking information included in this press release is made as of the date of this press release and the Company undertakes no obligation to publicly update or revise any forward-looking information, other than as required by applicable law.
Non-GAAP Measures
This press release refers to “Adjusted EBITDA” which is a non-GAAP and non-IFRS financial measure that does not have a standardized meaning prescribed by GAAP or IFRS. The Company’s presentation of this financial measure may not be comparable to similarly titled measures used by other companies. This financial measure is intended to provide additional information to investors concerning the Company’s and MME’s performance. Adjusted EBITDA is defined as EBITDA excluding stock-based compensation. Adjusted EBITDA is a Non-IFRS measure the Company uses as an indicator of financial health and excludes several items which may be useful in the consideration of the financial condition of the Company and MME, as applicable, including interest expense, income taxes, depreciation, amortization, stock-based compensation, goodwill impairment and change in fair value of debentures and financial derivatives.
Unless otherwise specified, all dollar amounts in this press release are expressed in Canadian dollars.
Neither the TSX Venture Exchange nor its Regulation Services Provider (as that term is defined in the policies of the TSX Venture Exchange) accepts responsibility for the adequacy or accuracy of this release.
For further information please visit our website at www.protechhomemedical.com, or contact:
Cole Stevens
VP of Corporate Development
Protech Home Medical Corp.
859-300-6455
cole.stevens@myphm.com
Gregory Crawford
Chief Executive Officer
Protech Home Medical Corp.
859-300-6455
investorinfo@myphm.com
Exhibit 99.79
Protech Home Medical Corp.
Consolidated Financial Statements
For the fiscal years ended
September 30, 2020 and 2019
(Expressed in Canadian dollars)
TABLE OF CONTENTS
Independent | Auditor’s Report |
Consolidated | Statements of Financial Position | Page 1 |
Consolidated | Statements of Loss and Other Comprehensive Loss | Page 2 |
Consolidated | Statements of Changes in Shareholders’ Equity | Page 3 |
Consolidated | Statements of Cash Flows | Page 4 |
Notes | to the Consolidated Financial Statements | Pages 5-38 |
Independent Auditor’s Report
To the Shareholders of Protech Home Medical Corp.:
Opinion
We have audited the consolidated financial statements of Protech Home Medical Corp. and its subsidiaries (the “Company”), which comprise the consolidated statements of financial position as at September 30, 2020 and 2019, and the consolidated statements of loss and other comprehensive loss, changes in shareholders’ equity and cash flows for the years then ended, and notes to the consolidated financial statements, including a summary of significant accounting policies.
In our opinion, the accompanying consolidated financial statements present fairly, in all material respects, the consolidated financial position of the Company as at September 30, 2020 and 2019, and its consolidated financial performance and its consolidated cash flows for the years then ended in accordance with International Financial Reporting Standards as issued by the International Accounting Standards Board.
Basis for Opinion
We conducted our audits in accordance with Canadian generally accepted auditing standards. Our responsibilities under those standards are further described in the Auditor’s Responsibilities for the Audit of the Consolidated Financial Statements section of our report. We are independent of the Company in accordance with the ethical requirements that are relevant to our audits of the consolidated financial statements in Canada, and we have fulfilled our other ethical responsibilities in accordance with these requirements. We believe that the audit evidence we have obtained is sufficient and appropriate to provide a basis for our opinion.
Emphasis of Matter – Restated Comparative Information
We draw attention to Note 22 to the consolidated financial statements, which explains that certain comparative information for the year ended September 30, 2019 has been restated. Our opinion is not modified in respect of this matter.
Other Information
Management is responsible for the other information. The other information comprises the Management’s Discussion and Analysis.
Our opinion on the consolidated financial statements does not cover the other information and we do not express any form of assurance conclusion thereon.
In connection with our audits of the consolidated financial statements, our responsibility is to read the other information and, in doing so, consider whether the other information is materially inconsistent with the consolidated financial statements or our knowledge obtained in the audits or otherwise appears to be materially misstated. We obtained Management’s Discussion and Analysis prior to the date of this auditor’s report. If, based on the work we have performed on this other information, we conclude that there is a material misstatement of this other information, we are required to report that fact. We have nothing to report in this regard.
Responsibilities of Management and those Charged with Governance for the Consolidated Financial Statements
Management is responsible for the preparation and fair presentation of the consolidated financial statements in accordance with International Financial Reporting Standards and for such internal control as management determines is necessary to enable the preparation of consolidated financial statements that are free from material misstatement, whether due to fraud or error.
In preparing the consolidated financial statements, management is responsible for assessing the Company’s ability to continue as a going concern, disclosing, as applicable, matters related to going concern and using the going concern basis of accounting unless management either intends to liquidate the Company or to cease operations, or has no realistic alternative but to do so.
Those charged with governance are responsible for overseeing the Company’s financial reporting process.
Auditor’s Responsibilities for the Audit of the Consolidated Financial Statements
Our objectives are to obtain reasonable assurance about whether the consolidated financial statements as a whole are free from material misstatement, whether due to fraud or error, and to issue an auditor's report that includes our opinion. Reasonable assurance is a high level of assurance but is not a guarantee that an audit conducted in accordance with Canadian generally accepted auditing standards will always detect a material misstatement when it exists. Misstatements can arise from fraud or error and are considered material if, individually or in the aggregate, they could reasonably be expected to influence the economic decisions of users taken on the basis of these consolidated financial statements.
As part of an audit in accordance with Canadian generally accepted auditing standards, we exercise professional judgment and maintain professional skepticism throughout the audit. We also:
· | Identify and assess the risks of material misstatement of the consolidated financial statements, whether due to fraud or error, design and perform audit procedures responsive to those risks, and obtain audit evidence that is sufficient and appropriate to provide a basis for our opinion. The risk of not detecting a material misstatement resulting from fraud is higher than for one resulting from error, as fraud may involve collusion, forgery, intentional omissions, misrepresentations, or the override of internal control. |
· | Obtain an understanding of internal control relevant to the audit in order to design audit procedures that are appropriate in the circumstances, but not for the purpose of expressing an opinion on the effectiveness of the Company’s internal control. |
· | Evaluate the appropriateness of accounting policies used and the reasonableness of accounting estimates and related disclosures made by management. |
· | Conclude on the appropriateness of management's use of the going concern basis of accounting and, based on the audit evidence obtained, whether a material uncertainty exists related to events or conditions that may cast significant doubt on the entity’s ability to continue as a going concern. If we conclude that a material uncertainty exists, we are required to draw attention in our auditor's report to the related disclosures in the consolidated financial statements or, if such disclosures are inadequate, to modify our opinion. Our conclusions are based on the audit evidence obtained up to the date of our auditor's report. However, future events or conditions may cause the Company to cease to continue as a going concern. |
· | Evaluate the overall presentation, structure and content of the consolidated financial statements, including the disclosures, and whether the consolidated financial statements represent the underlying transactions and events in a manner that achieves fair presentation |
· | Obtain sufficient appropriate audit evidence regarding the financial information of the entities or business activities within the Company to express an opinion on the consolidated financial statements. We are responsible for the direction, supervision and performance of the group audit. We remain solely responsible for our audit opinion. |
We communicate with those charged with governance regarding, among other matters, the planned scope and timing of the audits and significant audit findings, including any significant deficiencies in internal control that we identify during our audits.
We also provide those charged with governance with a statement that we have complied with relevant ethical requirements regarding independence, and to communicate with them all relationships and other matters that may reasonably be thought to bear on our independence, and where applicable, related safeguards.
The engagement partner on the audit resulting in this independent auditor's report is Murad Mansoor Ali Bhimani.
|
|
Toronto, Ontario | Chartered Professional Accountants |
January 31, 2021 | Licensed Public Accountants |
MANAGEMENT'S RESPONSIBILITY FOR FINANCIAL REPORTING
The accompanying consolidated financial statements of Protech Home Medical Corp. and its subsidiaries (the “Company”) were prepared by management in accordance with International Financial Reporting Standards. Management acknowledges responsibility for the preparation and presentation of the consolidated financial statements, including responsibility for significant accounting judgments and estimates and the choice of accounting principles and methods that are appropriate to the Company’s circumstances. The significant accounting policies of the Company are summarized in Note 3 to the consolidated financial statements.
The Board of Directors is responsible for reviewing and approving the consolidated financial statements and for ensuring that management fulfills its financial reporting responsibilities. An Audit Committee assists the Board of Directors in fulfilling this responsibility. The Audit Committee reports its findings to the Board of Directors for its consideration in approving the consolidated financial statements for issuance to the shareholders.
Management recognizes its responsibility for conducting the Company’s affairs in compliance with established financial standards, and applicable laws and regulations, and for maintaining proper standards of conduct for its activities.
signed “Gregory Crawford” | signed “Hardik Mehta” | |
Chief Executive Officer | Chief Financial Officer | |
(Gregory Crawford) | (Hardik Mehta) |
PROTECH HOME MEDICAL CORP.
CONSOLIDATED STATEMENTS OF FINANCIAL POSITION
(Expressed in thousands of Canadian Dollars, except per share amounts)
Notes |
As at September 30, 2020 |
As at September 30, 2019 (Restated) (Note 22) |
||||||||||
ASSETS | ||||||||||||
Current Assets | ||||||||||||
Cash | $ | 38,985 | $ | 12,855 | ||||||||
Accounts receivable, net | 5 | 12,125 | 12,390 | |||||||||
Inventory | 6 | 8,556 | 4,738 | |||||||||
Prepaid and other current assets | 736 | 800 | ||||||||||
Total current assets | 60,402 | 30,783 | ||||||||||
Long-term assets | ||||||||||||
Property, equipment, and right of use assets, net | 7 | 22,240 | 19,496 | |||||||||
Goodwill | 8 | 5,195 | 1,881 | |||||||||
Intangible assets, net | 8 | 7,442 | 2,911 | |||||||||
Deferred financing costs | 11 | 768 | - | |||||||||
Deposits | 88 | 94 | ||||||||||
Total long-term assets | 35,733 | 24,382 | ||||||||||
TOTAL ASSETS | $ | 96,135 | $ | 55,165 | ||||||||
LIABILITIES | ||||||||||||
Current Liabilities | ||||||||||||
Accounts payables | $ | 9,917 | $ | 8,122 | ||||||||
Current portion of equipment loans | 11 | 5,751 | 8,179 | |||||||||
Current portion of leases | 11 | 2,717 | 557 | |||||||||
Accrued liabilities | 5,795 | 2,319 | ||||||||||
Government grant | 9 | 3,465 | - | |||||||||
Deferred revenue | 13 | 2,406 | 1,904 | |||||||||
Derivative warrant liability | 10 | 2,475 | - | |||||||||
Total current liabilities | 32,526 | 21,081 | ||||||||||
Long-Term Liabilities | ||||||||||||
Debentures | 11 | 17,245 | 13,966 | |||||||||
Equipment loans | 11 | 585 | 1,496 | |||||||||
Lease liabilities | 11,22 | 4,308 | 1,377 | |||||||||
Government grant | 9 | 3,052 | ||||||||||
Other long-term liabilities | 4 | 748 | - | |||||||||
TOTAL LIABILITIES | 58,464 | 37,920 | ||||||||||
SHAREHOLDERS' EQUITY | ||||||||||||
Share capital | 12 | 224,571 | 198,196 | |||||||||
Contributed surplus | 21,850 | 21,390 | ||||||||||
Accumulated deficit | (222,099 | ) | (215,344 | ) | ||||||||
Accumulated other comprehensive income | 13,349 | 13,003 | ||||||||||
TOTAL SHAREHOLDERS' EQUITY | 37,671 | 17,245 | ||||||||||
TOTAL LIABILITIES AND EQUITY | $ | 96,135 | $ | 55,165 | ||||||||
Commitments and Contingencies (Note 14) | ||||||||||||
Subsequent Events (Note 21) |
APPROVED ON BEHALF OF THE BOARD: | |
Signed: Donald Ewing | Signed: Mark Greenberg |
The accompanying notes are an integral part of these consolidated financial statements
1
PROTECH HOME MEDICAL CORP.
CONSOLIDATED STATEMENTS OF LOSS AND OTHER COMPREHENSIVE LOSS
(Expressed in thousands of Canadian Dollars, except per share amounts)
Notes | Year ended September 30, 2020 |
Year ended September 30, 2019 Restated Note 22 |
||||||||||
Revenue | ||||||||||||
Sale of medical equipment and supplies | $ | 42,241 | $ | 35,227 | ||||||||
Rental of medical equipment | 55,514 | 45,740 | ||||||||||
Total revenue | 97,755 | 80,967 | ||||||||||
Inventory sold | 26,826 | 22,583 | ||||||||||
Operating expenses | 15 | 51,982 | 43,526 | |||||||||
Depreciation | 7 | 18,653 | 13,366 | |||||||||
Amortization of intangible assets | 8 | 912 | 603 | |||||||||
Stock-based compensation | 12 | 230 | 2,063 | |||||||||
Impairment of goodwill | 8 | - | 531 | |||||||||
Loss from cyber incident | 13 | - | 1,012 | |||||||||
Acquisition related costs | 4,19 | 120 | 1,853 | |||||||||
Gain on disposals of property and equipment | (99 | ) | (20 | ) | ||||||||
Other expense / (income) | 9 | (1,754 | ) | 77 | ||||||||
Income (Loss) from continuing operations before financing and taxes | 885 | (4,627 | ) | |||||||||
Financing expenses | ||||||||||||
Interest paid on convertible debenture | 11 | 1,200 | 1,752 | |||||||||
Interest expense on leases | 11 | 621 | 92 | |||||||||
Interest expense on equipment loans | 11 | 659 | 700 | |||||||||
Interest income | - | (34 | ) | |||||||||
Transaction costs related to issuance of securities | 12 | 284 | 1,758 | |||||||||
Loss (gain) on fair value of financial liabilities | 10 | 267 | (95 | ) | ||||||||
Loss (gain) on fair value of convertible debentures | 11 | 3,279 | (1,034 | ) | ||||||||
Loss on early extinguishment of debenture | 11 | - | 1,106 | |||||||||
Loss from continuing operations before taxes | (5,425 | ) | (8,872 | ) | ||||||||
Provision for income taxes | 16 | 172 | 269 | |||||||||
Loss from continuing operations | (5,597 | ) | (9,141 | ) | ||||||||
Discontinued operations: | ||||||||||||
Income (loss) from discontinued operations | 20 | (1,158 | ) | 233 | ||||||||
Gain on sale of business | 20 | - | 1,522 | |||||||||
Income (loss) from discontinued operations | (1,158 | ) | 1,755 | |||||||||
Net loss | $ | (6,755 | ) | $ | (7,386 | ) | ||||||
Other comprehensive income | ||||||||||||
Cumulative translation adjustment | 346 | 671 | ||||||||||
Comprehensive loss | $ | (6,409 | ) | $ | (6,715 | ) | ||||||
Net loss per share (Note 18) | ||||||||||||
Basic earnings per share | $ | (0.07 | ) | $ | (0.09 | ) | ||||||
Diluted earnings per share | $ | (0.07 | ) | $ | (0.09 | ) | ||||||
Weighted average number of common shares outstanding: | ||||||||||||
Basic | 90,884 | 82,860 | ||||||||||
Diluted | 90,884 | 82,860 |
The accompanying notes are an integral part of these consolidated financial statements
2
PROTECH HOME MEDICAL CORP.
CONSOLIDATED STATEMENTS OF CHANGES IN SHAREHOLDERS’ EQUITY
(Expressed in thousands of Canadian Dollars, except per share amounts)
Notes |
Number of Shares (000’s) |
Capital stock |
Contributed surplus |
Accumulated Deficit (Restated Note 22) |
Accumulated other comprehensive income |
Total shareholders' equity (Restated Note 22) |
||||||||||||||||||||||
Balance, September 30, 2018 | 75,819 | $ | 193,951 | $ | 19,041 | $ | (206,054 | ) | $ | 12,332 | $ | 19,270 | ||||||||||||||||
Correction for deferred revenue | 22 | - | - | - | (1,904 | ) | - | (1,904 | ) | |||||||||||||||||||
Restated Balance, September 30, 2018 | 75,819 | 193,951 | 19,041 | (207,958 | ) | 12,332 | 17,366 | |||||||||||||||||||||
Net loss | - | - | - | (7,386 | ) | - | (7,386 | ) | ||||||||||||||||||||
Cumulative translation adjustment | - | - | - | - | 671 | 671 | ||||||||||||||||||||||
Stock-based compensation | 12 | - | - | 2,063 | - | - | 2,063 | |||||||||||||||||||||
Stock options exercised | 12 | 56 | 63 | (21 | ) | - | - | 42 | ||||||||||||||||||||
Proceeds from shares issued in private placement, net of transaction costs of $343 | 12 | 7,483 | 4,146 | - | - | - | 4,146 | |||||||||||||||||||||
Compensation options issued with private placement | - | (132 | ) | 132 | - | - | - | |||||||||||||||||||||
Compensation options issued with debenture | 10 | - | - | 175 | - | - | 175 | |||||||||||||||||||||
Debentures converted to shares | 10 | 3 | 4 | - | - | - | 4 | |||||||||||||||||||||
Stock issued with acquisition | 4 | 228 | 164 | - | - | - | 164 | |||||||||||||||||||||
Balance, September 30, 2019 | 83,589 | $ | 198,196 | $ | 21,390 | $ | (215,344 | ) | $ | 13,003 | $ | 17,245 | ||||||||||||||||
Net loss | - | - | - | (6,755 | ) | - | (6,755 | ) | ||||||||||||||||||||
Cumulative translation adjustment | - | - | - | - | 346 | 346 | ||||||||||||||||||||||
Stock-based compensation | 12 | 60 | 35 | 195 | - | - | 230 | |||||||||||||||||||||
Stock options exercised | 12 | 522 | 482 | (200 | ) | - | - | 282 | ||||||||||||||||||||
Proceeds from shares issued in bought deal, net of transaction costs of $3,589 | 12 | 27,679 | 26,034 | - | - | - | 26,034 | |||||||||||||||||||||
Compensation options issued with bought deal | 12 | - | (622 | ) | 622 | - | - | - | ||||||||||||||||||||
Compensation options exercised | 12 | 427 | 446 | (157 | ) | - | - | 289 | ||||||||||||||||||||
Balance, September 30, 2020 | 112,277 | $ | 224,571 | $ | 21,850 | $ | (222,099 | ) | $ | 13,349 | $ | 37,671 |
The accompanying notes are an integral part of these consolidated financial statements
3
PROTECH HOME MEDICAL CORP.
CONSOLIDATED STATEMENTS OF CASH FLOWS
(Expressed in thousands of Canadian Dollars, except per share amounts)
Notes |
Year
ended
September 30, 2020 |
Year
ended
|
||||||||||
Operating activities | ||||||||||||
Loss from continuing operations | $ | (5,597 | ) | $ | (9,141 | ) | ||||||
Income (loss) from discontinued operations | (1,158 | ) | 1,755 | |||||||||
Adjustments to reconcile net loss to net cash provided by operating activities: | ||||||||||||
Depreciation and amortization | 19,565 | 13,969 | ||||||||||
Depreciation – discontinued operations | - | 377 | ||||||||||
Accretion and amortization of financing costs | - | 671 | ||||||||||
Transaction costs related to issuance of financial liabilities | 10 | 284 | 1,758 | |||||||||
Income recognized relating to government grant | (1,569 | ) | - | |||||||||
Loss on early extinguishment of debenture | 11 | - | 1,106 | |||||||||
Change in fair value of derivative financial liability | 267 | (95 | ) | |||||||||
Loss (gain) on fair value of convertible debentures | 10,11 | 3,279 | (1,034 | ) | ||||||||
Gain on disposal of property and equipment | (99 | ) | (20 | ) | ||||||||
Gain on sale of business | 19 | - | (1,522 | ) | ||||||||
Impairment of goodwill | 8 | - | 531 | |||||||||
Stock-based compensation | 12 | 230 | 2,063 | |||||||||
Bad debt expense | 5 | 8,668 | 5,686 | |||||||||
Bad debt expense – discontinued operations | 5 | - | 62 | |||||||||
Change in working capital: | ||||||||||||
Net increase in accounts receivable | (6,884 | ) | (6,832 | ) | ||||||||
Net (increase) decrease in inventory | (2,371 | ) | 844 | |||||||||
Net (increase) decrease in prepaid and other current assets | 155 | (315 | ) | |||||||||
Net increase in deferred revenue | 62 | - | ||||||||||
Net increase in accounts payables and accrued liabilities | 2,799 | 1,243 | ||||||||||
Net cash flow provided by operating activities | 17,631 | 11,106 | ||||||||||
Investing activities | ||||||||||||
Purchase of property and equipment | 6 | (123 | ) | (205 | ) | |||||||
Cash proceeds from sale of property and equipment | 340 | 214 | ||||||||||
Cash paid for acquisitions | 4 | (10,787 | ) | (526 | ) | |||||||
Cash proceeds from sale of business | 20 | - | 4,454 | |||||||||
Net cash flow provided by (used in) investing activities | (10,570 | ) | 3,937 | |||||||||
Financing activities | ||||||||||||
Repayments of long-term debt | 11 | (17,455 | ) | (15,293 | ) | |||||||
Issuance cost relating to revolving credit facility | (768 | ) | - | |||||||||
Proceeds from government grant | 9 | 8,086 | - | |||||||||
Repayment of old debenture | 11 | - | (8,625 | ) | ||||||||
Cash paid on early extinguishment of debt | 11 | - | (345 | ) | ||||||||
Net proceeds from issuance of common shares | 12 | 26,034 | 4,146 | |||||||||
Proceeds from issuance of warrants | 10 | 2,208 | - | |||||||||
Proceeds from exercise of options | 12 | 571 | 42 | |||||||||
Proceeds from issuance of debentures | 11 | - | 15,000 | |||||||||
Issuance costs on debenture | 10 | - | (1,583 | ) | ||||||||
Net cash flow provided by (used in) financing activities | 18,676 | (6,658 | ) | |||||||||
Net increase in cash | 25,737 | 8,385 | ||||||||||
Effect of exchange rate changes on cash held in foreign currencies | 393 | 139 | ||||||||||
Cash, beginning of year | 12,855 | 4,331 | ||||||||||
Cash, end of year | $ | 38,985 | $ | 12,855 | ||||||||
Supplemental Disclosures | ||||||||||||
Transfers from inventory to rental equipment | 10,330 | 11,269 | ||||||||||
Interest paid | 2,480 | 2,544 |
The accompanying notes are an integral part of these consolidated financial statements
4
PROTECH HOME MEDICAL CORP.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS AS OF AND FOR THE YEARS ENDED SEPTEMBER 30, 2020 AND 2019
(Tabular dollar amounts expressed in thousands of Canadian Dollars, except per share amounts)
1. | Nature of operations |
Protech Home Medical Corp. was incorporated under the Business Corporations Act (Alberta) on March 5, 1993. On December 30, 2013, the Company was continued into British Columbia, Canada. The address of the registered office is 5626 Larch St. Suite 202, Vancouver, BC V6M 4E1 (Canada). The corporate office is located at 1019 Town Drive, Wilder, Kentucky, United States. Protech Home Medical Corp.’s and its subsidiaries’ ("Protech" or “the Company”) main revenue source is in providing in-home monitoring equipment and supplies to patients in the United States. The Company has also embarked on an acquisition strategy for additional revenue and profit growth.
The Company’s shares are traded on the TSX Venture Exchange under the symbol PTQ. The stock is also traded over the counter in the United States under the symbol PHMZF. Effective December 31, 2018, the Company consolidated its issued and outstanding common shares based on one post-consolidation common share for every five pre-consolidation common shares. Unless otherwise stated, all share, options, warrants and per-share amounts have been restated retrospectively to reflect this share consolidation.
On July 29, 2019, the Company sold all the assets of one of its subsidiaries, Patient Home Monitoring, Inc. The consolidated financial statements and the notes reflect Patient Home Monitoring, Inc. as discontinued operations (see Note 20).
COVID-19 Pandemic
On March 11, 2020, the World Health Organization declared the outbreak of a novel strain of coronavirus (“COVID-19”) a global pandemic. In response to the outbreak, governmental authorities in the United States and internationally have introduced various recommendations and measures to try to limit the pandemic, including travel restrictions, border closures, non-essential business closures, quarantines, self-isolations, shelters-in-place, and social distancing. The COVID-19 outbreak and the response of governmental authorities to try to limit it are having a significant impact on the private sector and individuals, including unprecedented business, employment, and economic disruptions.
Although the Company has taken steps to mitigate the impact of COVID-19, the continued presence and spread of COVID-19 nationally and globally could have a material adverse impact on the Company’s business, operations, and financial results and position, including through employee attrition, disruptions to the Company’s supply chains and sales channels, restrictions of operations at our retail stores, changes in the number of Americans with health insurance resulting in a change in demand for the Company’s products, as well as a deterioration of general economic conditions including a possible national or global recession. Due to the speed with which the COVID-19 situation is developing and the uncertainty of its magnitude, outcome, and duration, it is not possible to estimate its impact on the Company’s business, operations, financial results and position or prospects at this time.
The Company continues to monitor the situation and work with its stakeholders (including customers, employees, and suppliers) in order to assess further possible implications to its business, supply chain, and customers, and, where practicable, mitigate adverse consequences and responsibly address this global pandemic.
The actual and threatened spread of COVID-19 globally could adversely affect global economies and financial markets, resulting in a prolonged economic downturn and a decline in the value of the Company’s share price. The extent to which COVID-19 (or any other disease, epidemic, or pandemic) impacts business activity or financial results, and the duration of any such negative impact, will depend on future developments, which are highly uncertain and cannot be predicted, including new information which may emerge concerning COVID-19 and the actions required to contain or treat its impact, among others.
See Note 9 for relief payments the Company received related to the U.S. Coronavirus Aid, Relief and Economic Security (“CARES”) Act.
5
PROTECH HOME MEDICAL CORP.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS AS OF AND FOR THE YEARS ENDED SEPTEMBER 30, 2020 AND 2019
(Tabular dollar amounts expressed in thousands of Canadian Dollars, except per share amounts)
2. | Basis of presentation |
Basis of accounting
These consolidated financial statements have been prepared in accordance with International Financial Reporting Standards (“IFRS”) as issued by the International Accounting Standards Board (“IASB”).
The consolidated financial statements were authorized for issue by the Board of Directors on January 31, 2021.
The consolidated financial statements, which are presented in Canadian dollars, have been prepared under the historical cost convention, as modified by the measurement at fair values of certain financial assets and financial liabilities.
Basis of measurement
These consolidated financial statements have been prepared on a going concern basis that assumes that the Company will continue its operations for the foreseeable future and be able to realize its assets and discharge its liabilities and commitments in the normal course of operation.
3. | Summary of significant accounting policies |
Principles of consolidation
These consolidated financial statements include the accounts of the Company and its wholly owned subsidiaries. All intercompany transactions have been eliminated. The Company’s consolidated entities, their functional currencies and ownership percentages are as follows:
Acadia Medical Supply, Inc. | USD | 100% |
Black Bear Medical, Inc. | USD | 100% |
Black Bear Medical NH, Inc. | USD | 100% |
Black Bear Medical Group, Inc. | USD | 100% |
Protech Home Medical Corp. | USD | 100% |
Care Medical Atlanta, LLC | USD | 100% |
Care Medical of Athens, Inc. | USD | 100% |
Care Medical of Augusta, LLC | USD | 100% |
Care Medical of Gainesville, LLC | USD | 100% |
Care Medical Partners, LLC | USD | 100% |
Care Medical Savannah, LLC | USD | 100% |
Coastal Med-Tech Corp. | USD | 100% |
Cooley Medical Equipment, Inc. | USD | 100% |
Central Oxygen, Inc. | USD | 100% |
Health Technology Resources, L.L.C. | USD | 100% |
Riverside Medical, Inc. | USD | 100% |
Legacy Oxygen and Home Care Equipment, LLC | USD | 100% |
Patient Aids, Inc. | USD | 100% |
Patient Home Monitoring, Inc. - discontinued | USD | 100% |
PHM Logistics Corporation | USD | 100% |
PHM Services, Inc. | USD | 100% |
Resource Medical, Inc. | USD | 100% |
Resource Medical Group Charleston, LLC | USD | 100% |
Resource Medical Group, LLC | USD | 100% |
West Home Healthcare, Inc. | USD | 100% |
Critical Accounting Estimates and Judgments
The preparation of financial statements in conformity with IFRS requires management to make certain estimates, judgments, and assumptions concerning the future. The Company’s management reviews these estimates, judgments, and assumptions on an ongoing basis, based on experience and other factors, including expectations of future events that are believed to be reasonable under the circumstances. Revisions to estimates are adjusted prospectively in the period in which the estimates are revised.
6
PROTECH HOME MEDICAL CORP.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS AS OF AND FOR THE YEARS ENDED SEPTEMBER 30, 2020 AND 2019
(Tabular dollar amounts expressed in thousands of Canadian Dollars, except per share amounts)
3. | Summary of significant accounting policies (Continued) |
Critical Accounting Estimates and Judgments (Continued)
Estimates where management has made subjective judgments and where there is significant risk of material adjustments to assets and liabilities in future accounting periods include fair value measurements for financial instruments and share-based transactions, useful lives and impairment of non-financial assets (property and equipment and intangible assets), provision for expected credit losses, fair value measurements for assets and liabilities acquired in business acquisition, and calculation of deferred taxes
Critical accounting estimates
The following are the key estimate and assumption uncertainties that have a significant risk of resulting in a material adjustment within the next financial year:
a) | Revenue recognition |
Revenues are billed to and collections are received from both third-party insurers and patients. Because of continuing changes in the health care industry and third-party reimbursement, the consideration receivable from these insurance companies is variable as these billings can be challenged by the payer. Therefore, the amount billed by the Company is reduced by an estimate of the amount that the Company believes is an allowable charge to be ultimately allowed by the insurance contract. The above estimate involves significant judgment including an analysis of past collections and historical modification rates. Management regularly reviews the actual claims approved by the insurance companies, making adjustments as required.
Sales of medical equipment and supplies
The Company sells equipment, replacement parts, and supplies to customers and recognizes revenue based on contractual payment rates as determined by the payors at the point in time where control of the good or service is transferred through delivery to the customer. The payors are generally charged at the time that the product is sold.
The transaction price on equipment sales is the amount that the Company expects to receive in exchange for the goods and services provided. Due to the nature of the industry, gross charges are retail charges and generally do not reflect what the Company is ultimately paid. As such, the transaction price is constrained for the difference between the gross charge and what is estimated to be collected from payors and from patients. The transaction price therefore is predominantly based on contractual payment rates as determined by the payors. The Company does not generally contract with uninsured customers but does offer point-of-sale payments at retail outlets. The payment terms and conditions of customer contracts vary by customer type and the products and services offered.
The Company determines its estimates of contractual allowances and discounts based upon contractual agreements and historical experience. While the rates are fixed for the product or service with the customer and the payors, such amounts typically include co-payments, co-insurance and deductibles, which vary in amounts, and are due from secondary insurance and/or the patient. The Company includes in the transaction price only the amount that the Company expects to be entitled, which is substantially all of the payor billings at contractual rates.
Due to the nature of the industry and the reimbursement environment in which the Company operates, certain estimates are required to record net revenue and accounts receivable at their net realizable values. Inherent in these estimates is the risk that they will have to be revised or updated as additional information becomes available. Specifically, the complexity of many third-party billing arrangements and the uncertainty of reimbursement amounts for certain services from certain payors may result in adjustments to amounts originally recorded. Such adjustments are typically identified and recorded at the point of claim approval or denial.
Returns and refunds are not accepted on equipment sales. The Company does not offer warranties to customers in excess of the manufacturer’s warranty. Any taxes due upon sale of the products or services are not recognized as revenue. The Company does not have any partially or unfilled performance obligations related to contracts with customers and as such, the Company has no contract liabilities as of September 30, 2020.
7
PROTECH HOME MEDICAL CORP.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS AS OF AND FOR THE YEARS ENDED SEPTEMBER 30, 2020 AND 2019
(Tabular dollar amounts expressed in thousands of Canadian Dollars, except per share amounts)
3. | Summary of significant accounting policies (Continued) |
a) | Revenue recognition (Continued) |
Rental of medical equipment
The Company rents medical equipment to customers for a fixed monthly amount on a month-to-month basis. The customer generally has the right to cancel the lease at any time during the rental period. The Company considers these rentals to be operating leases. Under IFRS 16, “Leases”, the Company recognizes rental revenue on operating leases on a straight-line basis over the contractual lease term, resulting in deferred revenue for the portion of the monthly rent that is after the consolidated statement of financial position date. The term begins on the date products are delivered to patients, and revenues are recorded at amounts estimated to be received under reimbursement arrangements with third-party payors, including Medicare, private commercial payors, and Medicaid. Certain customer co-payments are included in revenue when considered probable of payment.
Due to the nature of the industry and the reimbursement environment in which the Company operates, certain estimates are required to record net revenue and accounts receivable at their net realizable values. Inherent in these estimates is the risk that they will have to be revised or updated as additional information becomes available. Specifically, the complexity of many third-party billing arrangements and the uncertainty of reimbursement amounts for certain services from certain payors may result in adjustments to amounts originally recorded. Such adjustments are typically identified and recorded at the point of cash application or claim denial.
b) | Valuation of accounts receivable |
The measurement of expected credit losses considers information about past events and current conditions. Forward looking macro-economic factors are incorporated into the risk parameters, such as unemployment rates, inflation, and interest rates. Significant judgments are made in order to incorporate forward-looking information into the estimation of allowances and may result in changes to the provision from period to period which may significantly affect our results of operations.
The Company estimates that a certain portion of receivables from customers may not be collected and maintains an allowance for doubtful accounts. The Company evaluates the net realizable value of accounts receivable as of the date of the consolidated balance sheets. Specifically, the Company considers historical realization data, including current and historical cash collections, accounts receivable aging trends, other operating trends and relevant business conditions. Because of continuing changes in the health care industry and third-party reimbursement, it is possible that the estimates could change, which could have a material impact on the operations and cash flows. If circumstances related to certain customers change or actual results differ from expectations, our estimate of the recoverability of receivables could fluctuate from that provided for in our consolidated financial statements. A change in estimate could impact bad debt expense and accounts receivable. Our allowance for doubtful accounts was approximately $6.8 million and $3.1 million as of September 30, 2020 and 2019, respectively, and based on our analysis, we believe the reserve is adequate for any exposure to credit losses.
c) | Valuation of inventories |
Inventory is recorded at the lower of cost or market. Inventory is expensed through cost of inventory sold when shipped to customers or transferred to property and equipment when rented to customers. The Company estimates that a certain portion of inventory purchased may be excess, obsolete, or non-saleable. The Company maintains a provision for obsolescence for these items. Valuation of the inventory was assessed at year-end, and all inventory items which more than two years are old and not supported by recent sales were provided for 50% in accordance with Company’s policy.
d) | Convertible debentures |
In accordance with the substance of the contractual arrangement, convertible debentures are compound financial instruments that are accounted for separately by their components: a financial liability and an equity instrument. The identification of convertible debenture components is based on interpretations of the substance of the contractual arrangement and therefore requires judgment from management. The separation of the components affects the initial recognition of the convertible debenture at issuance and the subsequent recognition of interest on the liability component. The determination of the fair value of the liability
8
PROTECH HOME MEDICAL CORP.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS AS OF AND FOR THE YEARS ENDED SEPTEMBER 30, 2020 AND 2019
(Tabular dollar amounts expressed in thousands of Canadian Dollars, except per share amounts)
3. | Summary of significant accounting policies (Continued) |
d) | Convertible debentures (Continued) |
is also based on a number of assumptions, including contractual future cash flows, discount factors, and the presence of any derivative financial instruments.
e) | Impairment of property and equipment and intangibles |
Property plant and equipment and intangibles are reviewed for impairment whenever events or changes in circumstances indicate that their carrying amounts exceed their recoverable amounts. The assessment of the recoverable amount requires estimates and assumptions such as discount rates, exchange rates, future capital requirements and future operating performance.
f) | Share based payments and warrants |
The amounts used to estimate fair values of stock options and warrants issued are based on estimates of future volatility of the Company’s share price, expected lives of the options and warrants, expected dividends to be paid by the Company and other relevant assumptions. By their nature, these estimates are subject to measurement uncertainty and the effect of changes in such estimates on the consolidated financial statements of future periods could be significant.
g) | Income taxes |
Significant judgment is required in determining the provision for future income taxes. There are many transactions and calculations undertaken during the ordinary course of business for which the ultimate tax determination is uncertain. The Company recognizes liabilities and contingencies for anticipated tax audit issues based on the Company’s current understanding of the tax law. For matters where it is probable that an adjustment will be made, the Company records its best estimate of the tax liability including the related interest and penalties in the current tax provision. Management believes they have adequately provided for the probable outcome of these matters; however, the final outcome may result in a materially different outcome than the amount included in the tax liabilities.
In addition, the Company recognizes deferred tax assets relating to tax losses carried forward to the extent there are sufficient taxable temporary differences (deferred tax liabilities) relating to the same taxation authority and the same taxable entity against which the unused tax losses can be utilized. Utilization of the tax losses depends on the ability of the taxable entity to satisfy certain tests at the time the losses are recouped.
h) | Useful lives of property and equipment |
The Company reviews the estimates for useful lives on an annual basis, or more frequently if events during the year indicate that a change may be required, with consideration given to technological obsolescence and other relevant business factors. A change in management’s estimate could impact depreciation/amortization expense and carrying value of property and equipment and intangible assets.
i) | Lease liabilities |
Estimate of lease term
When the Company recognizes a lease, it assesses the lease term based on the conditions of the lease and determines whether it will extend the lease at the end of the lease contract or exercise an early termination option. As it is not reasonably certain that the extension or early termination options will be exercised, the Company determined that the term of its leases are the lesser of original lease term or the life of the leased asset. This significant estimate could affect future results if the Company extends the lease or exercises an early termination option.
9
PROTECH HOME MEDICAL CORP.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS AS OF AND FOR THE YEARS ENDED SEPTEMBER 30, 2020 AND 2019
(Tabular dollar amounts expressed in thousands of Canadian Dollars, except per share amounts)
3. | Summary of significant accounting policies (Continued) |
Lease liabilities (Continued)
Incremental borrowing rate
When the Company recognizes a lease, the future lease payments are discounted using the Company’s incremental borrowing rate. This significant estimate impacts the carrying amount of the lease liabilities and the interest expense recorded on the consolidated statement of loss and comprehensive loss.
Critical Accounting Judgments
The following are the critical judgments, apart from those involving estimations, that have been made in the process of applying the Company's accounting policies and that have the most significant effect on the amounts recognized in the consolidated financial statements.
a) | Business combinations |
In accordance with IFRS 3 – Business Combination (“IFRS 3”), a transaction is recorded as a business combination if the significant assets, liabilities, or activities in addition to property and related debt assumed constitute a business. A business is defined as an integrated set of activities and assets, capable of being conducted and managed for the purpose of providing a return, lower costs, or other economic benefits. Where there are no such integrated activities, the transaction is treated as an asset acquisition. The estimation of the fair value of the assets and liabilities acquired in an acquisition is subject to judgment concerning estimating market values and predicting future events. These values are uncertain and can materially impact the carrying value of the acquired assets and the amount allocated to goodwill.
b) | Goodwill impairment |
Management has evaluated the recoverable amount for its cash generating unit and applied judgment in the discount rate and other underlying assumptions used in impairment analysis of goodwill.
The Company has four CGUs with goodwill and reviews the value in use versus the carrying value both in total and for each of the individual assets. The recoverable amount of the CGU was estimated based on an assessment of value in use using a discounted cash flow approach. The approach uses cash flow projections based upon a financial forecast approved by management, covering a five-year period. Cash flows for the years thereafter are extrapolated using the estimated terminal growth rate. The risk premiums expected by market participants related to uncertainties about the industry and assumptions relating to future cash flows may differ or change quickly, depending on economic conditions and other events.
c) | Segment reporting |
IFRS 8 requires operating segments to be determined based on the Company’s internal reporting to the Chief Operating Decision Maker (‘CODM’). The CODM has been determined to be the Company’s Chief Executive Officer as he is primarily responsible for the allocation of resources and the assessment of performance. The Company has only one reportable operating segment.
d) | Identification of cash-generating unit (“CGU”) |
For the purposes of impairment testing, assets are grouped at the lowest levels of integrated assets that generate identifiable cash inflows that are largely independent of the cash inflows of other assets or groups of assets, termed as a CGU. The allocation of assets into a CGU requires significant judgment and interpretations with respect to the integration between assets, the existence of active markets, similar exposure to market risks, shared infrastructures and the way in which management monitors the operations.
10
PROTECH HOME MEDICAL CORP.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS AS OF AND FOR THE YEARS ENDED SEPTEMBER 30, 2020 AND 2019
(Tabular dollar amounts expressed in thousands of Canadian Dollars, except per share amounts)
3. | Summary of significant accounting policies (Continued) |
Loss per share
Basic loss per share is computed by dividing the net loss available to common shareholders by the weighted average number of shares outstanding during the reporting period. Diluted loss per share is computed similarly to basic loss per share except that the weighted average number of shares outstanding is increased to include additional shares for the assumed exercise of stock options and warrants, if dilutive. The average number of shares is calculated by assuming that outstanding conversions were exercised and that the proceeds from such exercises were used to acquire common shares at the average market price during the reporting period. For the years ended September 30, 2020 and 2019, potentially dilutive common shares issuable upon the exercise of conversion option related to convertible debentures, warrants and options were not included in the computation of loss per share because their effect was anti-dilutive.
Reporting currency
All values are in Canadian dollars ($) unless specifically indicated otherwise. United States dollars are indicated as US$.
Functional currency
The consolidated financial statements of the Company are presented in Canadian dollars, which is the parent Company’s presentation currency but which differs from its functional currency, US$, which was determined by the fact that the Company derives all of its revenue and the majority of its operating expenses incurred to generate those revenues is the United States.
Management has exercised judgment in selecting the functional currency of each of the entities that it consolidates based on the primary economic environment in which the entity operates and in reference to the various indicators including the currency that primarily influences or determines the selling prices of goods and services and the cost of production, including labor, material and other costs and the currency whose competitive forces and regulations mainly determine selling prices.
Foreign currency transactions
Transactions in foreign currencies are initially recorded by the Company’s entities in their respective functional currency at the foreign currency spot rate or the rate realized in the transaction. Monetary items are translated at the foreign currency spot rate as of the reporting date. Exchange differences from monetary items are recognized in profit or loss. Non-monetary items that are not carried at fair value are translated using the exchange rates at the date of the initial transaction. Non-monetary items measured at fair value in a foreign currency are translated using the exchange rates at the date when the fair value is determined. The assets and liabilities of foreign operations are translated into $ at the rate of exchange prevailing at the reporting date and their statements of operations are translated at the weighted average monthly rates of exchange. The exchange differences arising on the translation are recognized in other comprehensive income. On disposal of a foreign operation, the component of other comprehensive income relating to that foreign operation is recognized in the statement of (loss) income and comprehensive (loss) and income.
Business Combinations
Business combinations are accounted for using the acquisition method. For each business combination at the acquisition date, the Company recognizes at fair value all the identifiable assets acquired, the liabilities assumed, the non-controlling interest in the acquiree and the aggregate of the consideration transferred, including any contingent consideration to be transferred. When the fair value of the consideration transferred, and the amount recognized for non-controlling interest and the acquisition-date fair value of any existing equity interest in the acquiree exceeds the net amount of the identifiable assets acquired and the liabilities assumed measured at fair value (the “net identifiable assets”), the difference is treated as goodwill. After initial recognition, goodwill is measured at its initial cost from the acquisition date, less any accumulated impairment losses. Goodwill is reviewed at least annually for impairment or when there is an indication of potential impairment. If the fair value of the Company’s share of the net identifiable assets exceeds the sum calculated above, the difference (i.e. gain on a bargain purchase) is immediately recognized in profit or loss.
11
PROTECH HOME MEDICAL CORP.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS AS OF AND FOR THE YEARS ENDED SEPTEMBER 30, 2020 AND 2019
(Tabular dollar amounts expressed in thousands of Canadian Dollars, except per share amounts)
3. | Summary of significant accounting policies (Continued) |
Business Combinations (Continued)
If the business combination is achieved in stages, the acquisition date fair value of the previously held interest in the acquiree is re-measured to fair value as at the acquisition date through profit or loss.
Financial assets
Recognition and initial measurement
The Company recognizes financial assets when it becomes party to the contractual provisions of the instrument. Financial assets are measured initially at their fair value plus, in the case of financial assets not subsequently measured at fair value through profit or loss, transaction costs that are directly attributable to their acquisition. Transaction costs attributable to the acquisition of financial assets subsequently measured at fair value through profit or loss are expensed in the consolidated statement of income (loss) and comprehensive income (loss) when incurred.
Classification and subsequent measurement
On initial recognition, financial assets are classified and subsequently measured at amortized cost, fair value through other comprehensive income (“FVOCI”) or fair value through profit or loss (“FVTPL”). The Company determines the classification of its financial assets, together with any embedded derivatives, based on the business model for managing the financial assets and their contractual cash flow characteristics.
Financial assets are classified as follows:
· | Amortized cost - Assets that are held for collection of contractual cash flows where those cash flows are solely payments of principal and interest are measured at amortized cost. Interest revenue is calculated using the effective interest method and gains or losses arising from impairment, foreign exchange and derecognition are recognized in the consolidated statement of income (loss) and comprehensive income (loss). Financial assets measured at amortized cost are comprised of accounts receivable and deposits. |
· | Fair value through other comprehensive income - Assets that are held for collection of contractual cash flows and for selling the financial assets, and for which the contractual cash flows are solely payments of principal and interest, are measured at fair value through other comprehensive income. Interest income calculated using the effective interest method and gains or losses arising from impairment and foreign exchange are recognized in the consolidated statement of income (loss) and comprehensive income (loss). All other changes in the carrying amount of the financial assets are recognized in other comprehensive income. Upon derecognition, the cumulative gain or loss previously recognized in other comprehensive income is reclassified to profit or loss. The Company does not hold any financial assets measured at fair value through other comprehensive income. |
· | Mandatorily at fair value through profit or loss - Assets that do not meet the criteria to be measured at amortized cost, or fair value through other comprehensive income, are measured at fair value through profit or loss. All interest income and changes in the financial assets’ carrying amount are recognized in the consolidated statement of income (loss) and comprehensive income (loss). Financial assets mandatorily measured at fair value through profit or loss are comprised of cash and cash equivalents. |
· | Designated at fair value through profit or loss – On initial recognition, the Company may irrevocably designate a financial asset to be measured at fair value through profit or loss in order to eliminate or significantly reduce an accounting mismatch that would otherwise arise from measuring assets or liabilities, or recognizing the gains and losses on them, on different bases. All interest income and changes in the financial assets’ carrying amount are recognized in the consolidated statement of income (loss) and comprehensive income (loss). The Company does not hold any financial assets designated to be measured at fair value through profit or loss. |
Business model assessment
The Company assesses the objective of its business model for holding a financial asset at a level of aggregation which best reflects the way the business is managed, and information is provided to management. Information considered in this assessment includes stated policies and objectives.
12
PROTECH HOME MEDICAL CORP.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS AS OF AND FOR THE YEARS ENDED SEPTEMBER 30, 2020 AND 2019
(Tabular dollar amounts expressed in thousands of Canadian Dollars, except per share amounts)
3. | Summary of significant accounting policies (Continued) |
Financial assets (Continued)
Classification and subsequent measurement (Continued)
Contractual cash flow assessment
The cash flows of financial assets are assessed as to whether they are solely payments of principal and interest based on their contractual terms. For this purpose, ‘principal’ is defined as the fair value of the financial asset on initial recognition. ‘Interest’ is defined as consideration for the time value of money, the credit risk associated with the principal amount outstanding, and other basic lending risks and costs. In performing this assessment, the Company considers factors that would alter the timing and amount of cash flows such as prepayment and extension features, terms that might limit the Company’s claim to cash flows, and any features that modify consideration for the time value of money.
Impairment
The Company recognizes a loss allowance for the expected credit losses associated with its financial assets, other than financial assets measured at fair value through profit or loss. Expected credit losses are measured to reflect a probability-weighted amount, the time value of money, and reasonable and supportable information regarding past events, current conditions and forecasts of future economic conditions.
The Company applies the simplified approach for trade receivables. Using the simplified approach, the Company records a loss allowance equal to the expected credit losses resulting from all possible default events over the assets’ contractual lifetime.
The Company assesses whether a financial asset is credit-impaired at the reporting date. Regular indicators that a financial instrument is credit-impaired include significant financial difficulties as evidenced through borrowing patterns or observed balances in other accounts and breaches of borrowing contracts such as default events or breaches of borrowing covenants. For financial assets assessed as credit-impaired at the reporting date, the Company continues to recognize a loss allowance equal to lifetime expected credit losses.
For financial assets measured at amortized cost, loss allowances for expected credit losses are presented in the statement of financial position as a deduction from the gross carrying amount of the financial asset.
Financial assets are written off when the Company has no reasonable expectations of recovering all or any portion thereof.
Derecognition of financial assets
The Company derecognizes a financial asset when its contractual rights to the cash flows from the financial asset expire.
Financial liabilities
Recognition and initial measurement
The Company recognizes a financial liability when it becomes party to the contractual provisions of the instrument. At initial recognition, the Company measures financial liabilities at their fair value plus transaction costs that are directly attributable to their issuance, with the exception of financial liabilities subsequently measured at fair value through profit or loss for which transaction costs are immediately recorded in the consolidated statement of income (loss) and comprehensive income (loss).
Where an instrument contains both a liability and equity component, these components are recognized separately based on the substance of the instrument, with the liability component measured initially at fair value and the equity component assigned the residual amount.
13
PROTECH HOME MEDICAL CORP.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS AS OF AND FOR THE YEARS ENDED SEPTEMBER 30, 2020 AND 2019
(Tabular dollar amounts expressed in thousands of Canadian Dollars, except per share amounts)
3. | Summary of significant accounting policies (Continued) |
Financial liabilities (Continued)
Classification and subsequent measurement
Subsequent to initial recognition, all financial liabilities are measured at amortized cost using the effective interest rate method. Interest, gains and losses relating to a financial liability are recognized in consolidated statement of income (loss) and comprehensive income (loss). The Company has classified and measured all financial liabilities at amortized cost except for warrants and convertible debentures which are measured at fair value.
Derecognition of financial liabilities
The Company derecognizes a financial liability when its contractual obligations are discharged, cancelled, or expire.
Discontinued operations
An operation is qualified as discontinued when it represents a separate major line of business and the Company has sold the asset. Discontinued operations are presented on a single line of the statement of (loss) income and comprehensive (loss) income for the periods reported, comprising the earnings after tax of discontinued operations until divestiture and the gain or loss after tax on sale or fair value measurement, less costs to sell the assets and liabilities making up the discontinued operations are presented on one separate line of the statement of consolidated cash flows for the periods presented.
Impairment of non-financial assets
Intangible assets are tested for impairment at each reporting period if impairment indicators exist and immediately prior to a transfer of costs to Property and Equipment (“P&E”). The Company has elected to allocate all its intangible assets to each of its cash generating units or subsidiaries listed under principals of consolidation (“CGUs”). As a result, the Company assesses its intangible assets for impairment at a CGU level. When the carrying amount of the CGU or group of CGUs exceeds their recoverable amount, the CGU or group of CGUs is considered impaired and written down to its recoverable amount. Recoverable amount is the higher of (i) the fair value less costs to sell and (ii) the value in use. Fair value less costs to sell is determined as the amount obtainable from the sale of an asset or CGU in an arm’s length transaction between knowledgeable, willing parties, less the costs of disposal. Value in use is generally computed by reference to the present value of the future cash flows expected to be derived from the asset or CGU discounted using a pre-tax discount rate reflecting market assessments of the time value of money and the risks specific to the asset or CGU. An impairment loss is recognized within earnings or loss. A previously recognized impairment loss may be reversed if the assumptions used to determine the recoverable amount have changed since the impairment loss recognition. For non-goodwill assets an impairment loss is reversed only to the extent that the asset’s carrying amount does not exceed the carrying amount that would have been determined, net of depreciation and depletion, if no impairment loss had been recognized.
Property and equipment
Property and equipment are stated at cost less accumulated depreciation. Major renewals and improvements are charged to the property accounts, while maintenance and repairs, which do not extend the useful life of the respective assets, are expensed as incurred. Depreciation is computed using the straight-line method over the estimated useful lives of the respective assets. The estimated useful lives of the assets are as follows:
14
PROTECH HOME MEDICAL CORP.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS AS OF AND FOR THE YEARS ENDED SEPTEMBER 30, 2020 AND 2019
(Tabular dollar amounts expressed in thousands of Canadian Dollars, except per share amounts)
3. | Summary of significant accounting policies (Continued) |
Property and equipment (Continued)
Description | Estimated Useful Lives | |
Rental Equipment | 1-5 years | |
Computer equipment | 3-5 years | |
Office furniture and fixtures | 5-10 years | |
Leasehold Improvements | Life of lease (1- 7 years) | |
Right-of-use vehicles | 5 years | |
Right-of-use real estate | 1-6 years |
Depreciation of monitoring equipment commences once it has been deployed to a patient’s address and put in use. Property and equipment and other non-current assets with definite useful lives are tested for impairment whenever events or changes in circumstances indicate that their carrying amount may not be recoverable.
Intangible assets
The Company has recorded various intangible assets consisting primarily of non-compete agreements, trademarks, customer contracts and customer relationships.
Non-compete agreements are the value associated with the non-compete agreements entered by the sellers of purchased companies.
Trademarks are the purchase price allocation for the value associated with the trade name of the acquired Company.
Customer contracts are comprised of the purchase price allocation of the present value of expected future customer billings based on the statistical life of a customer.
Customer relationships are the value given in the purchase price allocation to the long-term associations with referral sources such as doctors, medical centers, etc.
Finite life intangible assets are amortized on a straight-line basis over the estimated useful lives of the related assets as follows:
Description | Estimated Useful Lives | |
Non-compete agreements | 5 years | |
Trademarks | 10 years | |
Customer contracts | 2 years | |
Customer relationships | 10 years |
Gains or losses arising from de-recognition of an intangible asset are measured as the difference between the net disposal proceeds and the carrying amount of the asset and are recognized in the Statements of Net Loss and Comprehensive Loss when the asset is derecognized.
The Company reviews the estimates for useful lives on an annual basis, or more frequently if events during the year indicate that a change may be required, with consideration given to technological obsolescence and other relevant business factors. A change in management’s estimate could impact depreciation/amortization expense and the carrying value of property and equipment and intangible assets.
15
PROTECH HOME MEDICAL CORP.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS AS OF AND FOR THE YEARS ENDED SEPTEMBER 30, 2020 AND 2019
(Tabular dollar amounts expressed in thousands of Canadian Dollars, except per share amounts)
3. | Summary of significant accounting policies (Continued) |
Intangible assets (Continued)
New standards and interpretations adopted
The following new or amended accounting standards were adopted by the Company for the year ended September 30, 2020:
IFRS 16, Leases
Effective October 1, 2019, the Company adopted IFRS 16, Leases. IFRS 16 eliminates the distinction between operating and finance leases from the perspective of the lessee. All contracts that meet the definition of a lease will
be recorded in the statement of financial position with a “right of use” asset and a corresponding liability at the present value of the future lease payments using the lessee’s incremental borrowing rate of 8%.
The Company elected to adopt IFRS 16 using the modified retrospective approach. Under this approach, the Company will not restate its comparative figures, but will recognize the cumulative effect of adopting IFRS 16 as an adjustment to opening statement of financial position, with the recognition of $3,456,000 of right of use assets and finance lease obligations on October 1, 2019. On the consolidated statement of income, the impact of the adoption of IFRS 16 is to increase depreciation expense and interest expense and decrease other operating expenses.
The Company elected to apply the practical expedient to exclude recognition of right of use assets and lease liabilities for real estate, computer equipment, and office furniture leases under 12 months in duration or for which the lease term ends within 12 months of initial application for leases, and for low-value assets. The Company also elected to apply IFRS 16 only to the contracts that were previously identified as leases. Contracts that were not identified as leases under IAS 17 Leases will not be reassessed for whether a lease exists.
Lease expenses for short-term leases included in operating expenses, facilities (Note 15) totaled $803,000 for the year ended September 30, 2020.
As of October 1, 2019, approximately $1,934,000 of vehicles were already accounted for as lease liabilities.
16
PROTECH HOME MEDICAL CORP.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS AS OF AND FOR THE YEARS ENDED SEPTEMBER 30, 2020 AND 2019
(Tabular dollar amounts expressed in thousands of Canadian Dollars, except per share amounts)
4. | Acquisition of businesses and purchase accounting |
Acquisition of Cooley Medical Equipment, Inc.
Effective October 1, 2019, the Company, through PHM Logistics Corporation, entered into a purchase agreement to acquire the shares of Cooley Medical Equipment, Inc. (Cooley), a Kentucky company in the same industry as the Company. The purchase price was $3,617,000, of which $3,089,000 was paid in cash at closing ($2,408 of which was paid to US Department of Justice against settlement of a litigation pending against the Cooley as on the date of acquisition, on behalf of seller), and the balance of $528,000 to be paid on the 18-month anniversary of the acquisition discounted at 3.86%. Of the cash portion of the purchase price, $2,416,000 was paid to the US Department of Justice to pay off a settlement agreement into which Cooley had entered. The Company has determined that the transaction is an acquisition of a business under IFRS 3 and it has been accounted for by applying the acquisition method. The Company expensed $55,000 of legal expenses, included in acquisition-related costs) in conjunction with the acquisition.
The acquired business contributed pro forma and actual revenue of approximately $8,000,000 and net loss of approximately $300,000 for the year ended September 30, 2020, primarily due to depreciation expense.
The fair value of the acquired assets was as follows:
Cash | $ | 106 | ||
Accounts receivable | 801 | |||
Inventory | 1,018 | |||
Prepaid assets | 55 | |||
Property and equipment | 2,440 | |||
Right of use assets | 1,430 | |||
Intangible asset - Brand | 106 | |||
Intangible asset – Non-compete | 26 | |||
Intangible asset – Customer relationships | 437 | |||
Goodwill | 560 | |||
Accounts payable and accrued liabilities | (1,079 | ) | ||
Deferred revenue | (271 | ) | ||
Equipment loans | (674 | ) | ||
Lease liabilities | (1,338 | ) | ||
Net assets acquired | $ | 3,617 | ||
Cash paid at closing | $ | 3,089 | ||
Cash to be paid after closing, included in accrued liabilities | 528 | |||
Consideration paid or payable | $ | 3,617 |
The goodwill is attributable to expected
synergies from the combining operations. None of the goodwill is expected to be deductible for tax purposes.
17
PROTECH HOME MEDICAL CORP.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS AS OF AND FOR THE YEARS ENDED SEPTEMBER 30, 2020 AND 2019
(Tabular dollar amounts expressed in thousands of Canadian Dollars, except per share amounts)
4. | Acquisition of businesses and purchase accounting (Continued) |
Acquisition of Acadia Medical Supply, Inc.
Effective December 1, 2019, the Company, through PHM Logistics Corporation, entered into a purchase agreement to acquire the shares of Acadia Medical Supply, Inc. (Acadia), a Maine company in the same industry as the Company. The purchase price was $1,961,000, of which $1,334,000 was paid in cash at closing, and the balance of $627,000 to be paid on the one- and two-year anniversaries of the acquisition discounted at 3.86%. The Company has determined that the transaction is an acquisition of a business under IFRS 3 and it has been accounted for by applying the acquisition method. The Company expensed $29,000 of legal expenses included in operating expenses in conjunction with the acquisition.
Pro forma revenues and net income for Acadia for the year ended September 30, 2020 were approximately $4,400,000 and $500,000, respectively. Of those amounts, revenues of approximately $3,700,000 and net income of approximately $400,000 contributed to the Company’s results for the period from December 1, 2019 through September 30, 2020.
The fair value of the acquired assets was as follows:
Cash | $ | 79 | ||
Accounts receivable | 190 | |||
Inventory | 327 | |||
Property and equipment | 514 | |||
Right of use asset | 323 | |||
Other assets | 10 | |||
Intangible asset - Brand | 173 | |||
Intangible asset – Non-compete | 40 | |||
Intangible asset – Customer relationship | 611 | |||
Goodwill | 498 | |||
Accounts payable and accrued liabilities | (368 | ) | ||
Deferred revenue | (59 | ) | ||
Equipment loans | (181 | ) | ||
Lease liabilities | (196 | ) | ||
Net assets acquired | $ | 1,961 | ||
Cash paid at closing | $ | 1,334 | ||
Cash to be paid after closing, included in accrued liabilities | 303 | |||
Cash to be paid after closing, included in other ling-term liabilities | 324 | |||
Consideration paid or payable | $ | 1,961 |
The goodwill is attributable to expected synergies from the combining operations. None of the goodwill is expected to be deductible for tax purposes.
18
PROTECH HOME MEDICAL CORP.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS AS OF AND FOR THE YEARS ENDED SEPTEMBER 30, 2020 AND 2019
(Tabular dollar amounts expressed in thousands of Canadian Dollars, except per share amounts)
4. | Acquisition of businesses and purchase accounting (Continued) |
Acquisition of Health Technology Resources, L.L.C.
Effective August 17, 2020, the Company, through PHM Logistics Corporation, entered into a purchase agreement to acquire the shares of Health Technology Resources, L.L.C. (“HTR”), an Illinois company in the same industry as the Company. The purchase price was $7,062,000, of which $6,364,000 was paid in cash at closing, and the balance of $698,000 to be paid after closing. The $698,000 is comprised of (a) a holdback due on the two-year anniversary of the acquisition discounted at 3.86% for a value of $243,000, (b) Payroll Protection Plan funds of $274,000 to be paid on upon forgiveness, and (c) an earnout valued at $181,000. The earnout could be as high as $660,000 and the fair value was based on a Monte Carlo simulation. The Company has determined that the transaction is an acquisition of a business under IFRS 3 and it has been accounted for by applying the acquisition method. The Company expensed $36,000 of legal expenses included in acquisition-related expenses in conjunction with the acquisition.
Pro forma revenues and net income for HTR for the year ended September 30, 2020 were approximately $5,500,000 and $2,000,000, respectively. Of those amounts, revenues of approximately $600,000 and net income of approximately $150,000 contributed to the Company’s results for the period from August 17, 2020 through September 30, 2020.
The fair value of the acquired assets was as follows:
Cash | $ | 185 | ||
Accounts receivable | 528 | |||
Inventory | 102 | |||
Property and equipment | 285 | |||
Prepaid assets | 20 | |||
Intangible asset - Brand | 436 | |||
Intangible asset – Non-compete | 92 | |||
Intangible asset – Customer relationships | 3,447 | |||
Goodwill | 2,217 | |||
Accounts payable and accrued liabilities | (140 | ) | ||
Deferred revenue | (110 | ) | ||
Net assets acquired | $ | 7,062 | ||
Cash paid at closing | $ | 6,364 | ||
Cash to be paid after closing, included in accrued liabilities | 274 | |||
Cash to be paid after closing, included in other long-term liabilities | 424 | |||
Consideration paid or payable | $ | 7,062 |
The goodwill is attributable to expected synergies from the combining operations. The goodwill is expected to be deductible for tax purposes
19
PROTECH HOME MEDICAL CORP.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
AS OF AND FOR THE YEARS ENDED SEPTEMBER 30, 2020 AND 2019
(Tabular dollar amounts expressed in thousands of Canadian Dollars, except per share amounts)
4. Acquisition of businesses and purchase accounting (Continued)
Acquisition of Central Oxygen Inc. (Central Oxygen)
On October 31, 2018, the Company, through one of its indirect wholly owned subsidiaries, entered into a purchase agreement to acquire all of the shares of Central Oxygen, an Indiana company in the same industry as the Company. The purchase price was $788,000, of which $624,000 was payable in cash and $164,000 was settled by issuance of 227,491 shares at a fair value of $0.72 per share.
The fair value of the acquired assets was as follows:
Cash | $ | 10 | ||
Accounts receivable | 31 | |||
Inventory | 164 | |||
Prepaid assets | 5 | |||
Property and equipment | 59 | |||
Goodwill | 531 | |||
Accrued liabilities | (12 | ) | ||
Net assets acquired | $ | 788 | ||
Cash paid at closing | $ | 394 | ||
Cash paid after closing | 230 | |||
Shares issued | 164 | |||
Consideration paid or payable | $ | 788 |
Acquisition of Riverside Medical Inc. (Riverside)
On October 31, 2018, the Company, through one of its indirect wholly owned subsidiaries, entered into a purchase agreement to acquire all of the shares of Riverside Medical Inc. (Riverside), a Tennessee company in the same industry as the Company. The purchase price was $132,000, paid in cash.
The fair value of the acquired assets was as follows:
Cash | $ | 10 | ||
Accounts receivable | 33 | |||
Inventory | 34 | |||
Property and equipment | 109 | |||
Intangible asset – customer contracts | 160 | |||
Advance to shareholder | 37 | |||
Accounts payable | (31 | ) | ||
Debt | (178 | ) | ||
Accrued liabilities | (42 | ) | ||
Net assets acquired | $ | 132 | ||
Cash | 132 | |||
Consideration paid | $ | 132 |
5. | Accounts receivable |
Accounts receivable represents amounts due from insurance companies and patients:
As at September 30, 2020 | As at September 30, 2019 | |||||||
Gross receivable | $ | 18,842 | $ | 15,463 | ||||
Reserve for expected credit losses | (6,717 | ) | (3,073 | ) | ||||
$ | 12,125 | $ | 12,390 |
20
PROTECH HOME MEDICAL CORP.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
AS OF AND FOR THE YEARS ENDED SEPTEMBER 30, 2020 AND 2019
(Tabular dollar amounts expressed in thousands of Canadian Dollars, except per share amounts)
5. Accounts receivable (Continued)
As at September 30, 2020 | Gross Receivables | Allowance for expected credit losses | Net Receivables | |||||||||
0 – 90 days | $ | 10,294 | $ | (1,386 | ) | $ | 8,908 | |||||
91 – 180 days | 2,782 | (1,201 | ) | 1,581 | ||||||||
Over 180 days | 5,766 | (4,130 | ) | 1,636 | ||||||||
Total | $ | 18,842 | $ | (6,717 | ) | $ | 12,125 |
Below is the movement in the reserve for expected credit losses:
Reserve for expected credit losses |
Year ended September 30, 2020 |
Year ended September 30, 2019 |
||||||
Opening Balance | $ | 3,073 | $ | 2,501 | ||||
Bad debt expense | 8,668 | 5,686 | ||||||
Bad debt expense – discontinued operations | - | 62 | ||||||
Amounts written off | (5,024 | ) | (5,176 | ) | ||||
Ending Balance | $ | 6,717 | $ | 3,073 |
6. | Inventory |
As at September 30, 2020 | As at September 30, 2019 | |||||||
Serialized | $ | 2,843 | $ | 1,038 | ||||
Non-serialized | 5,824 | 3,770 | ||||||
Reserve for slow-moving | (111 | ) | (70 | ) | ||||
Total inventory | $ | 8,556 | $ | 4,738 |
The reserve for slow-moving is included under cost of inventory sold in the statement of loss and comprehensive loss.
7. | Property and equipment (Restated) |
Cost | Rental equipment | Computer equipment | Office furniture and fixtures | Leasehold improvements | Right of use assets - Vehicles | Right of use assets – Real estate | Total | |||||||||||||||||||
Balance September 30, 2018 | $ | 37,201 | $ | 1,173 | $ | 635 | $ | 1,364 | $ | 2,875 | $ | - | $ | 43,248 | ||||||||||||
Transfers from inventory | 11,269 | - | - | - | - | - | 11,269 | |||||||||||||||||||
Additions | - | 35 | 4 | 166 | 1,226 | - | 1,431 | |||||||||||||||||||
Acquisitions | 125 | - | 4 | 2 | 36 | - | 167 | |||||||||||||||||||
Disposals | (11,992 | ) | (457 | ) | (62 | ) | (5 | ) | (770 | ) | - | (13,286) | ||||||||||||||
Disposal – discontinued operations | (1,999 | ) | (106 | ) | (21 | ) | (7 | ) | - | - | (2,133) | |||||||||||||||
Foreign exchange | 773 | 23 | 14 | 28 | 59 | - | 897 | |||||||||||||||||||
Balance September 30, 2019 | $ | 35,377 | $ | 668 | $ | 574 | $ | 1,548 | $ | 3,426 | $ | - | $ | 41,593 | ||||||||||||
Transfers from inventory | 10,330 | - | - | - | - | 10,330 | ||||||||||||||||||||
Additions – adoption of IFRS 16 | - | - | - | - | - | 3,456 | 3,456 | |||||||||||||||||||
Additions | - | 7 | - | 116 | 1,069 | 1,797 | 2,989 | |||||||||||||||||||
Acquisitions | 3,089 | - | - | 243 | 211 | 1,452 | 4,995 | |||||||||||||||||||
Disposals | (18,804 | ) | (459 | ) | (142 | ) | (199 | ) | (992 | ) | (7 | ) | (20,603) | |||||||||||||
Foreign exchange | 111 | 11 | 12 | 116 | 117 | (37 | ) | 322 | ||||||||||||||||||
Balance September 30, 2020 | $ | 30,103 | $ | 227 | $ | 444 | $ | 1,824 | $ | 3,831 | $ | 6,661 | $ | 43,082 |
21
PROTECH HOME MEDICAL CORP.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
AS OF AND FOR THE YEARS ENDED SEPTEMBER 30, 2020 AND 2019
(Tabular dollar amounts expressed in thousands of Canadian Dollars, except per share amounts)
7. Property and equipment (Restated) (Continued)
Accumulated Depreciation | Rental equipment | Computer equipment |
Office furniture and fixtures |
Leasehold improvements | Right of use assets - Vehicles | Right of use assets – Real estate | Total | |||||||||||||||||||||
Balance September 30, 2018 | $ | 19,676 | $ | 753 | $ | 303 | $ | 263 | $ | 1,365 | $ | - | $ | 22,360 | ||||||||||||||
Depreciation | 12,490 | 171 | 104 | 67 | 534 | - | 13,366 | |||||||||||||||||||||
Depreciation – Discontinued operations | 370 | 4 | 2 | 1 | - | - | 377 | |||||||||||||||||||||
Disposals | (12,006 | ) | (374 | ) | (61 | ) | (3 | ) | (648 | ) | - | (13,092 | ) | |||||||||||||||
Disposals – Discontinued operations | (1,134 | ) | (87 | ) | (15 | ) | (7 | ) | - | - | (1,243 | ) | ||||||||||||||||
Foreign exchange | 161 | 24 | 11 | 19 | 114 | - | 329 | |||||||||||||||||||||
Balance September 30, 2019 | $ | 19,557 | $ | 491 | $ | 344 | $ | 340 | $ | 1,365 | $ | - | $ | 22,097 | ||||||||||||||
Depreciation | 15,380 | 100 | 96 | 167 | 894 | 2,016 | 18,653 | |||||||||||||||||||||
Disposals | (18,775 | ) | (458 | ) | (142 | ) | (199 | ) | (783 | ) | (5 | ) | (20,362 | ) | ||||||||||||||
Foreign exchange | 261 | 9 | 8 | 103 | 99 | (18 | ) | 461 | ||||||||||||||||||||
Balance September 30, 2020 | $ | 16,423 | $ | 142 | $ | 306 | $ | 411 | $ | 1,575 | $ | 1,993 | $ | 20,849 | ||||||||||||||
Net Book Value | Monitoring equipment | Computer equipment | Office furniture and fixtures | Leasehold improvements | Right of use assets - Vehicles | Right of use assets – Real estate | Total | |||||||||||||||||||||
Balance September 30, 2018 | $ | 17,525 | $ | 420 | $ | 332 | $ | 1,101 | $ | 1,510 | $ | - | $ | 20,888 | ||||||||||||||
Balance September 30, 2019 | $ | 15,820 | $ | 177 | $ | 230 | $ | 1,208 | $ | 2,061 | $ | - | $ | 19,496 | ||||||||||||||
Balance September 30, 2020 | $ | 13,680 | $ | 85 | $ | 138 | $ | 1,413 | $ | 2,256 | $ | 4,668 | $ | 22,240 |
During the years ended September 30, 2020 and 2019, the Company purchased rental equipment through the conversion of accounts payable to loans arranged by the vendor with a financing institution of $9,445,000 and $10,040,000, respectively (see Note 11).
22
PROTECH HOME MEDICAL CORP.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
AS OF AND FOR THE YEARS ENDED SEPTEMBER 30, 2020 AND 2019
(Tabular dollar amounts expressed in thousands of Canadian Dollars, except per share amounts)
8. | Goodwill and intangible assets |
Cost | Goodwill | Non-compete agreements | Brand | Customer contracts | Customer relationships | Subtotal intangibles with finite lives | Total | |||||||||||||||||||||
Balance September 30, 2018 | $ | 1,839 | $ | 669 | $ | 1,736 | $ | 4,826 | $ | 10,994 | $ | 18,225 | $ | 20,064 | ||||||||||||||
Disposals | - | - | - | - | (43 | ) | (43 | ) | (43 | ) | ||||||||||||||||||
Acquisitions | 531 | - | - | 160 | - | 160 | 691 | |||||||||||||||||||||
Impairment of goodwill | (531 | ) | - | - | - | - | - | (531 | ) | |||||||||||||||||||
Foreign exchange | 42 | 15 | 40 | 113 | 253 | 421 | 463 | |||||||||||||||||||||
Balance September 30, 2019 | 1,881 | 684 | 1,776 | 5,099 | 11,204 | 18,763 | 20,644 | |||||||||||||||||||||
Disposals | - | - | - | - | (110 | ) | (110 | ) | (110 | ) | ||||||||||||||||||
Acquisitions | 3,275 | 158 | 715 | - | 4,495 | 5,368 | 8,643 | |||||||||||||||||||||
Foreign exchange | 39 | 7 | 18 | 37 | (127 | ) | (65 | ) | (26 | ) | ||||||||||||||||||
Balance September 30, 2020 | $ | 5,195 | $ | 849 | $ | 2,509 | $ | 5,136 | $ | 15,462 | $ | 23,956 | $ | 29,151 | ||||||||||||||
Accumulation amortization | Goodwill | Non-compete agreements | Brand | Customer contracts | Customer relationships |
Subtotal intangibles with finite lives |
Total | |||||||||||||||||||||
Balance September 30, 2018 | $ | - | $ | 575 | $ | 1,047 | $ | 4,826 | $ | 8,502 | $ | 14,950 | $ | 14,950 | ||||||||||||||
Amortization | - | 48 | 105 | - | 450 | 603 | 603 | |||||||||||||||||||||
Disposals | - | - | - | - | (43 | ) | (43 | ) | (43 | ) | ||||||||||||||||||
Foreign exchange | - | 13 | 24 | 111 | 194 | 342 | 342 | |||||||||||||||||||||
Balance September 30, 2019 | - | 636 | 1,176 | 4,937 | 9,103 | 15,852 | 15,852 | |||||||||||||||||||||
Amortization | - | 55 | 139 | 157 | 561 | 912 | 912 | |||||||||||||||||||||
Disposals | - | - | - | - | (110 | ) | (110 | ) | (110 | ) | ||||||||||||||||||
Foreign exchange | - | 6 | 4 | 35 | (185 | ) | (140 | ) | (140 | ) | ||||||||||||||||||
Balance September 30, 2020 | $ | - | $ | 697 | $ | 1,319 | $ | 5,129 | $ | 9,369 | $ | 16,514 | $ | 16,514 | ||||||||||||||
Net carrying amount |
Goodwill | Non-compete agreements | Brand | Customer contracts | Customer relationships | Subtotal intangibles with finite lives | Total | |||||||||||||||||||||
Balance September 30, 2018 | $ | 1,839 | $ | 94 | $ | 689 | $ | - | $ | 2,492 | $ | 3,275 | $ | 5,114 | ||||||||||||||
Balance September 30, 2019 | $ | 1,881 | $ | 48 | $ | 600 | $ | 162 | $ | 2,101 | $ | 2,911 | $ | 4,792 | ||||||||||||||
Balance September 30, 2020 | $ | 5,195 | $ | 152 | $ | 1,190 | $ | 7 | $ | 6,093 | $ | 7,442 | $ | 12,637 |
Goodwill Continuity
Balance September 30, 2019 |
Acquired through business combination | Impairment loss recognized during the year | Change due to foreign exchange |
Balance September 30, 2020 |
|||||||||||||||||
Legacy | $ | 1,881 | $ | - | $ | - | $ | 10 | $ | 1,891 | |||||||||||
Cooley | - | 560 | - | 6 | 566 | ||||||||||||||||
Acadia | - | 498 | - | 2 | 500 | ||||||||||||||||
HTR | - | 2,217 | - | 21 | 2,238 | ||||||||||||||||
Total | $ | 1,881 | $ | 3,275 | $ | - | $ | 39 | $ | 5,195 |
23
PROTECH HOME MEDICAL CORP.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
AS OF AND FOR THE YEARS ENDED SEPTEMBER 30, 2020 AND 2019
(Tabular dollar amounts expressed in thousands of Canadian Dollars, except per share amounts)
8. Goodwill and intangible assets (Continued)
Cash generating units value in use versus carrying value comparison
Value in Use of CGU as at September 30, 2020 | Carrying value of CGU as of September 30, 2020 | Excess (deficit) of fair value over carrying value as at September 30, 2020 | |||||||||||
Legacy | $ | 13,943 | $ | 5,670 | $ | 8,273 | |||||||
Cooley | 5,462 | 4,523 | 939 | ||||||||||
Acadia | 3,517 | 2,597 | 920 | ||||||||||
HTR | 6,951 | 6,692 | 259 | ||||||||||
Total | $ | 29,873 | $ | 19,482 | $ | 10,391 |
The Company’s annual goodwill impairment testing for the year ended September 30, 2019 determined that the carrying value of Central Oxygen CGU exceeded their value in use, and as a result, the Company recorded a goodwill impairment charge of $531,000. The impairment resulted from a decline in the expected performances of these businesses relative to expectations at the time the acquisitions were consummated.
The impairment was determined based on a value in use calculation which uses cash flow projections covering a five-year period and a discount rate of 17% per annum. The cash flows beyond the five-year period have been extrapolated using (terminal growth rates of 0%) per annum growth rate. Where the value in use for a particular CGU was less than the carrying amount of the assets, the recoverable amounts for those assets have been determined based on value in use model.
No impairment has been recognized in the current year as carrying value of the applicable CGUs is less than the value in use as of September 30, 2020.
The impairment is determined based on a value in use calculation which uses cash flow projections covering a five-year period and a discount rate of 16% to 19% per annum. The cash flows beyond the five-year period have been extrapolated using (terminal growth rates of 1%) per annum growth rate. Where the value in use for a particular CGU was less than the carrying amount of the assets, the recoverable amounts for those assets have been determined based on value in use model. A 0.5% change in the discount rate for all CGUs would impact the value in use by approximately $900,000. A 0.5% change in the terminal growth rate for all CGUs would impact the value in use by approximately $200,000.
9. Deferred Income - CARES Act
During the year ended September 30, 2020, the Company received payments related to the two separate provisions of the CARES Act.
Payroll Protection Plan (“PPP’)
On April 21, 2020, the Company received approximately $6,000,000 (approximately $5,700,000 at the September 30 exchange rate) related to the PPP, which was to assist companies in maintaining their workforce. The PPP provided for loans to qualifying businesses for amounts up to 2.5 times of the average monthly payroll expenses. The loans and accrued interest are forgivable as long as the borrower uses the loan proceeds for eligible purposes, including payroll, benefits, rent, and utilities for up to twenty-four weeks, and maintains certain payroll levels. The unforgiven portion of the PPP loan is payable over two years in monthly equal instalments of $236,317 each, commencing from seventh month from the date of issuance of grant, resulting in the current portion of the PPP being $3,465,000, and the long-term portion being $3,052,000. The loan is subject to interest 1%, commencing from the 7th month.
Since the Company expects to meet the PPP’s eligibility criteria and has concluded that the PPP loan represents, in substance, a grant that is expected to be forgiven, it has accounted for the proceeds under IAS 20, Accounting for Government Grants and Disclosure of Government Assistance. The cash inflow has been reported as a financing activity.
24
PROTECH HOME MEDICAL CORP.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
AS OF AND FOR THE YEARS ENDED SEPTEMBER 30, 2020 AND 2019
(Tabular dollar amounts expressed in thousands of Canadian Dollars, except per share amounts)
9. Deferred Income - CARES Act (Continued)
Public Health and Social Services Emergency Fund (“Relief Fund”)
During the year ended September 30, 2020, the Company received approximately $2,400,000 from the Relief Fund, which was established to support healthcare providers to prevent, prepare for, and respond to coronavirus, including health care related expenses or lost revenues, subject to certain terms and conditions. If those terms and conditions are met, payments do not need to be repaid. No expenses related to the PPP can be used to meet the terms and conditions for the Relief Fund.
Since the Company expects to meet the Relief Fund’s terms and conditions, it has accounted for the proceeds under IAS 20, Accounting for Government Grants and Disclosure of Government Assistance. The cash inflow has been reported as a financing activity. The original proceeds were recognized as a liability, which was reduced based on certain related costs relates incurred. The reduction of the liability by $1,569,000 has been included under other expense / (income) in the statement of loss and other comprehensive loss.
10. | Derivative warrant liability |
On June 29, 2020, the Company completed a bought deal public offering, a concurrent brokered private placement, and a non-brokered private placement to the Company’s Chief Executive Officer and a director of the Company, for 25,001,000, 1,750,000 and 927,826 units, respectively. Each unit issued was issued at a price of $1.15 for total gross proceeds of $31,831,000 and consisted of one common share and one-half of one common share purchase warrant (each whole warrant, a “Warrant”), for a total of 13,839,410 Warrants. Each Warrant will be exercisable to acquire one common share for a period of 12 months following the closing at an exercise price of $1.60 per share. The Warrants are recorded as a liability since they are denominated in Canadian Dollars and the Company’s functional currency is US Dollars. The liability is recorded at fair value, using the Black-Scholes pricing model revaluation is performed each period end, with the change in fair value recorded in the caption “Loss (gain) on fair value of financial liabilities.” Upon exercise, the warrant liability will be derecognized and transferred to equity. The fair value of the Warrants was valued at September 30, 2020 at $0.18 for a total value of $2,475,000, and at June 29, 2020, at $0.16 for a total of $2,208,000, and a loss of $267,000 was recorded. The Black-Scholes pricing model was used to value the warrant with the following assumptions:
As at September 30, 2020 | At Issuance | |||||||
Share price | $ | 1.31 | $ | 1.12 | ||||
Risk-free interest rate | 0.23 | % | 0.28 | % | ||||
Expected volatility | 60.8 | % | 65.8 | % | ||||
Expected life of warrant | 0.75 years | 1 year | ||||||
Expected dividend yield | 0 | % | 0 | % |
A 5% change in the volatility would change the value by approximately $300,000.
25
PROTECH HOME MEDICAL CORP.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS AS OF AND FOR THE YEARS ENDED SEPTEMBER 30, 2020 AND 2019
(Tabular dollar amounts expressed in thousands of Canadian Dollars, except per share amounts)
Warrant activity for the year ended September 30, 2020 is provided below:
Amount | ||||
Balance September 30, 2019 | $ | - | ||
Issued | 2,208 | |||
Change in fair value | 267 | |||
Balance September 30, 2020 | $ | 2,475 |
Number
(000s) |
Weighted
average exercise price |
|||||||
Balance, September 30, 2019 | - | $ | - | |||||
Issued | 13,839 | 1.60 | ||||||
Balance, September 30, 2020 | 13,839 | $ | 1.60 |
11. | Long-term debt (Restated) |
Debentures
On March 7, 2019, the Company issued $15,000,000 in 8.0% Convertible Unsecured Debentures due March 7, 2024, with interest payable semi-annually on June 30 and December 31. Each $1,000 debenture is convertible at the option of the holder into approximately 769.23 common shares. As of September 30, 2020, $4,000 of debentures had been converted into common shares. After three years, the Company can force conversion of the outstanding principal at conversion price of $1.30, if the daily volume weighted average price of the common shares exceeds $1.62 per share for twenty consecutive trading days. The debenture agreement also allows for payment of cash in lieu of common shares upon exercise of conversion right by the holder, equivalent of the market price on the conversion date.
The debentures contain multiple embedded derivatives including conversion right, forced conversion option and payment in lieu of common shares. Since the Company is unable to measure the fair value of embedded derivatives reliably, it has chosen to designate the convertible debentures in their entirety (including conversion right, forced conversion option and payment in lieu of common shares) to be subsequently measured at fair value through profit or loss (FVTPL).
The debentures are valued at fair value using the current trading price of $115 and $93 as of September 30, 2020 and 2019, respectively, per unit. There were total 14,996 units outstanding as of year end resulting in a loss of $3,279,000 for the year ended September 30, 2020 and a gain of $1,034,000 for the year ended September 30, 2019. Following is the movement in these debentures:
Year
ended
September 30,2020 |
Year ended September 30,2019 | |||||||
Beginning Balance | $ | 13,966 | $ | - | ||||
Issued | - | 15,000 | ||||||
Change in fair value | 3,279 | (1,034 | ) | |||||
Ending Balance | $ | 17,245 | $ | 13,966 |
Interest of $1,200,000 was charged during the year on these convertible debentures which is included in the statement of loss and other comprehensive loss.
The Company issued compensation options to the underwriters for 519,231 shares of the Company at an exercise price of $1.30 for a period of two years from the closing of the transaction. The fair value of the options has been valued at $0.34 for a total of $175,000, using the Black-Scholes pricing model with the following assumptions:
Exercise price per share | $ | 1.30 | ||
Risk-free interest rate | 1.62 | % | ||
Expected volatility | 87.4 | % | ||
Expected life of option | 2 years | |||
Expected dividend yield | 0.0 | % |
Compensation options activity for the year ended September 30, 2020 is provided below:
Number
(000s) |
Weighted
average exercise price |
|||||||
Balance, September 30, 2019 | 519 | $ | 1.30 | |||||
Balance, September 30, 2020 | 519 | $ | 1.30 |
During 2014, the Company issued $8,625,000 in unsecured subordinated debentures due December 31, 2019. The debentures were repaid in April 2019 for $8,970,000, including a prepayment premium. The carrying value of the debentures at settlement was $7,864,000, resulting in a loss on early extinguishment of $1,106,000 due to unaccreted balance and premium paid due to early settlement.
26
PROTECH HOME MEDICAL CORP.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS AS OF AND FOR THE YEARS ENDED SEPTEMBER 30, 2020 AND 2019
(Tabular dollar amounts expressed in thousands of Canadian Dollars, except per share amounts)
11. Long-term debt (Restated) (Continued)
Equipment Loans
The Company is offered financing arrangements from their suppliers and their designated financial institution, in which payments for certain invoices or products can be financed and paid over an extended period. The financial institution pays the supplier when the original invoice becomes due, and the Company pays the third-party financial institution over a period of time. In some cases, the supplier accepts a discounted amount from the financial institution and the Company repays the financial institution the face amount of the invoice with no stated interest, in twelve equal monthly installments. The Company uses a 6% incremental borrowing rate to impute interest on these arrangements. In other cases, the supplier receives the full invoice price and Company pays a stated interest rate to the financial institution, ranging from 5.6% to 8.0%, with the terms of the financing ranging from 12 to 48 months. There are no covenants with the loans and the carrying value of the equipment that is pledged as security against these loans is $6,683,000.
Following is the activity in equipment loans for the years ended September 30, 2020 and 2019:
Balance, September 30, 2018 | $ | 12,825 | ||
Additions | 10,040 | |||
Interest expense | 840 | |||
Repayments of principal and interest | (14,785 | ) | ||
Effect of changes in exchange rates | 755 | |||
Balance, September 30, 2019 | $ | 9,675 | ||
Additions: | ||||
Acquisitions | 855 | |||
Operations | 9,445 | |||
Interest expense | 659 | |||
Repayments of principal and interest | (14,122 | ) | ||
Effect of changes in exchange rates | (176 | ) | ||
Balance, September 30, 2020 | $ | 6,336 | ||
Current portion | (5,751 | ) | ||
Long-term portion, due in 2022 | $ | 585 |
Lease Liabilities
The Company enters in lease for real estate and vehicles. Real estate leases are valued at the net present value of the future lease payments at an 8% incremental borrowing rate. Vehicle leases are recorded at rate implicit in the lease based on the current value and the estimated residual value of the vehicle, equating to rates ranging from 1.7% to 10.4%.
Following is the activity of lease liabilities for the years ended September 30, 2020 and 2019:
Vehicles | Real estate | Total | ||||||||||
Balance, September 30, 2018 | 1,080 | - | 1,080 | |||||||||
Additions | 1,222 | - | 1,222 | |||||||||
Interest expense | 92 | - | 92 | |||||||||
Repayments of principal and interest | (508 | ) | - | (508 | ) | |||||||
Effect of changes in exchange rates | 48 | - | 48 | |||||||||
Balance, September 30, 2019 | $ | 1,934 | $ | - | $ | 1,934 | ||||||
Additions during the year: | ||||||||||||
Adoption of IFRS 16, Leases | - | 3,456 | 3,456 | |||||||||
Acquisitions | 87 | 1,452 | 1,539 | |||||||||
Operations | 1,069 | 1,797 | 2,866 | |||||||||
Interest expense | 186 | 435 | 621 | |||||||||
Repayments of principal and interest | (1,097 | ) | (2,236 | ) | (3,333 | ) | ||||||
Effect of changes in exchange rates | (8 | ) | (50 | ) | (58 | ) | ||||||
Balance, September 30, 2020 | $ | 2,171 | $ | 4,854 | $ | 7,025 |
27
PROTECH HOME MEDICAL CORP.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS AS OF AND FOR THE YEARS ENDED SEPTEMBER 30, 2020 AND 2019
(Tabular dollar amounts expressed in thousands of Canadian Dollars, except per share amounts)
11. Long-term debt (Restated) (Continued)
Lease Liabilities (Continued)
As at September 30,2020 |
As at September 30,2019 |
|||||||
Lease liabilities | $ | 7,025 | $ | 1,934 | ||||
Current portion of lease liabilities | (2,717 | ) | (557 | ) | ||||
Net long-term lease liabilities | $ | 4,308 | $ | 1,377 |
Future gross payments pursuant to lease liabilities are as follows:
As at September 30,2020 |
As at September 30,2019 |
|||||||
Less than 1 year | $ | 3,193 | $ | 595 | ||||
Between 1 and 5 years | 4,665 | 1,685 | ||||||
More than five years | 93 | - | ||||||
Total | $ | 7,951 | $ | 2,280 |
Below is the reconciliation of total future minimum lease payments and its present value at the end of the reporting period:
As at September 30,2020 |
As at September 30,2019 |
|||||||
Gross lease payments | $ | 7,951 | $ | 2,280 | ||||
Less: finance charges | (926 | ) | (346 | ) | ||||
Net lease liabilities | $ | 7,025 | $ | 1,934 |
Revolving Credit Facility
On September 18, 2020, the Company entered into a US$20,000,000 asset-based revolving credit facility with a US bank. No balance was outstanding from September 18 through September 30, 2020. The facility matures in September 2024 and bears interest at floating rate of LIBOR plus 2.0% to 2.5%, with a LIBOR floor of 0.5% and has an unused fee of 0.3%. The facility is subject to a borrowing base based on a percentage of eligible accounts receivable and customer rental contracts, which totaled approximately US$11,900,000 as of September 30, 2020. Issuance costs of $768,000 were incurred, are recorded in “other long-term assets” on the consolidated balance sheet and are being amortized on a straight-line over the four-year term of the facility.
12. Share capital
The Company considers its capital to be shareholders’ equity, which is comprised of share capital, contributed surplus, accumulated other comprehensive income (loss), and accumulated deficit, in the amount of $37,663,000 as at September 30, 2020 and $17,245,000 as at September 30, 2019.
The Company raises capital, as necessary, to meet its needs and take advantage of perceived opportunities and, therefore, does not have a numeric target for its capital structure. Funds are primarily secured through equity, and long-term debt, including debentures, equipment loans and leases.
Management reviews its capital management approach on an ongoing basis and believes that this approach, given the relative size of the Company, is reasonable. The Company invests all capital that is surplus to its immediate operational needs in short-term, liquid and highly rated financial instruments, such as cash, and short-term guarantee deposits, held with major Canadian and US financial institutions.
Authorized share capital
The Company’s authorized share capital consists of an unlimited number of common shares and an unlimited number of preferred shares issuable in series. The preferred shares issuable in series will have the rights, privileges, restrictions, and conditions assigned to the series upon the Board of Directors approving their issuance.
28
PROTECH HOME MEDICAL CORP.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS AS OF AND FOR THE YEARS ENDED SEPTEMBER 30, 2020 AND 2019
(Tabular dollar amounts expressed in thousands of Canadian Dollars, except per share amounts)
12. Share capital (Continued)
Issued share capital
The Company has only one class of common stock outstanding. Effective December 31, 2018, the Company consolidated its issued and outstanding common shares based on one post-consolidation common share for every five pre-consolidation common shares.
Common shares are classified as equity. Incremental costs directly attributable to the issuance of common shares are recognized as a reduction of equity, net of any tax effects. Accumulated other comprehensive income represents items such as cumulative, foreign currency translation adjustments, the change in equity arising from unrealized gains and losses from financial instruments designated as available-for-sale, and changes in fair value of derivatives designated as cash flow hedges, and is presented as a separate component of shareholders’ equity on the Consolidated Statements of Financial Position. The Company does not currently participate in hedging activities.
Bought deals and private placements
On June 29, 2020, the Company completed a bought deal public offering, a concurrent brokered private placement, and a non-brokered private placement to the Company’s Chief Executive Officer and a director of the Company, for 25,001,000, 1,750,000, and 927,826 units, respectively. The 1,750,000 units were subject to a 4-month restriction. Each unit issued was issued at a price of $1.15 for total gross proceeds of $31,831,000 and consisted of one common share and one-half of one common share purchase warrant (each whole warrant, a “Warrant”). The fair value of the Warrants was recorded as a liability and valued at June 29, 2020, at $0.16 for a total of $2,208,000, using the Black-Scholes pricing model, as described in Note 10. Upon exercise, the warrant liability will be derecognized and transferred to equity.
Issuance costs of $3,873,000 in cash, including underwriters’ commission of $1,692,000, were incurred. These costs were allocated ratably between common shares and warrant liability, with $3,589,000 recorded as a reduction of shareholders’ equity and $284,000 recorded as “Transaction costs on issuance of financial liabilities” on the consolidated statement of (loss) income. The Company issued compensation options to the underwriter for 1,471,305 shares at the issue price of $1.15 for a period of two years from the closing of the offering. The fair value of the options has been valued at $0.42 for a total of $622,000, using the Black-Scholes pricing model with the following assumptions:
Exercise price per share | $ | 1.15 | ||
Share price at date of issuance | $ | 1.12 | ||
Risk-free interest rate | 0.25 | % | ||
Expected volatility based on most recent 12 months’ trading price | 71.0 | % | ||
Expected life of option | 2 years | |||
Expected dividend yield | 0.00 | % |
Activity for the June 2020 compensation options for the year ended September 30, 2020 is as follows:
Number
(000s) |
Weighted
average exercise price |
|||||||
Balance, September 30, 2019 | - | $ | - | |||||
Issued | 1,471 | 1.15 | ||||||
Exercised | (60 | ) | 1.15 | |||||
Balance, September 30, 2020 | 1,411 | $ | 1.15 |
The share price on the date of exercise was $1.34.
On November 2, 2018, the Company completed a bought deal offering of 5,649,600 common shares of the Company at a price of $0.60 per share for gross proceeds to the Company of $3,390,000. In conjunction with this transaction, the Company also completed non-brokered private placement of 1,833,333 common shares to officers and directors at the $0.60 issue price for gross proceeds to the Company of $1,100,000. Issuance costs of $343,000 in cash were incurred. The Company issued compensation options to the underwriter for 367,224 shares at the issue price of $0.60 for a period of 24 months from the closing of the offering. The fair value of the options
29
PROTECH HOME MEDICAL CORP.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS AS OF AND FOR THE YEARS ENDED SEPTEMBER 30, 2020 AND 2019
(Tabular dollar amounts expressed in thousands of Canadian Dollars, except per share amounts)
12. Share capital (Continued)
has been valued at $0.36 for a total of $132,000, using the Black-Scholes pricing model with the following assumptions:
Exercise price per share | $ | 0.60 | ||
Share price at date of issuance | $ | 0.36 | ||
Risk-free interest rate | 2.35 | % | ||
Expected volatility based on most recent 12 months’ trading prices | 87.88 | % | ||
Expected life of option | 2 years | |||
Expected dividend yield | 0.00 | % |
Activity for the November 2018 compensation options for the years ended September 30, 2020 and 2019 is as follows:
Number
(000s) |
Weighted
average exercise price |
|||||||
Balance, September 30, 2018 | - | $ | - | |||||
Issued | 367 | 0.60 | ||||||
Balance, September 30, 2019 | 367 | 0.60 | ||||||
Exercised | (367 | ) | 0.60 | |||||
Balance, September 30, 2020 | - | $ | - |
The weighted average share price on the dates of exercise was $1.30.
Employee and consultant options
The Company has a stock option plan, which it uses for grants to directors, officers, employees, and consultants. Options granted under the plan are non-assignable and may be granted for a term not exceeding ten years. Stock options vest immediately or over varying time periods up to three years. A summary of stock options is provided below:
Number
(000’s) |
Weighted
average exercise price |
|||||||
Balance September 30, 2018 | 9,804 | $ | 0.45 | |||||
Issued | 2,140 | 0.73 | ||||||
Exercised | (56 | ) | 0.38 | |||||
Forfeited | (496 | ) | 0.53 | |||||
Balance September 30, 2019 | 11,392 | $ | 0.49 | |||||
Issued | 100 | 1.10 | ||||||
Exercised | (522 | ) | 0.58 | |||||
Expired | (442 | ) | 1.10 | |||||
Forfeited | (22 | ) | 0.38 | |||||
Balance September 30, 2020 | 10,506 | $ | 0.48 |
At September 30, 2020, the Company had 10,500,000 vested, exercisable stock options with a weighted average exercise price of $0.49. At September 30, 2019, the Company had 11,148,000 vested, exercisable stock options with a weighted average exercise price of $0.49. The weighted average share price on the dates of exercise shares was $1.05.
The Company accounts for stock-based compensation, including stock options, using the fair value method as prescribed by IFRS 2. Under this method, the fair value of stock options at the date of grant is amortized over the vesting period and the offsetting credit is recorded as an increase in contributed surplus.
For the year ended September 30, 2020, the Company recorded total stock-based compensation expense of $230,000. For the year ended September 30, 2019, the Company recorded total stock-based compensation expense of $2,063,000. The fair value of the stock options has been charged to the statement of income (loss) and comprehensive loss and credited to contributed surplus over the proper vesting period, using the Black-Scholes option pricing model calculated using the following assumptions:
30
PROTECH HOME MEDICAL CORP.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS AS OF AND FOR THE YEARS ENDED SEPTEMBER 30, 2020 AND 2019
(Tabular dollar amounts expressed in thousands of Canadian Dollars, except per share amounts)
12. Share capital (Continued)
Year ended September 30,2020 |
Year ended September 30,2019 |
|||||||
Share price at dates of issuance | $ | 0.96 | $0.63 - $0.90 | |||||
Risk-free interest rate | 1.63 | % | 1.26% - 2.24% | |||||
Expected volatility based on most recent 12 months’ trading prices | 83.2 | % | 84.7% - 118.2% | |||||
Expected life of option | 4 Years | 2-10 Years | ||||||
Expected dividend yield | Nil | Nil |
13. Deferred Revenue
Activity for deferred revenue for the years ended September 30, 2020 and 2019 is as follows:
Balance, September 30, 2018 | $ | 1,904 | ||
Net Change | - | |||
Balance, September 30, 2019 | 1,904 | |||
Net Change | 502 | |||
Balance, September 30, 2020 | $ | 2,406 |
14. Commitments and Contingencies
Commitments
The Company leases certain facilities with terms of less than a year that are classified as operating leases. Future payments pursuant to these leases are $155,000 as of September 30, 2020., which are all due in less than one year.
Contingencies
The Company has been in litigation with Lightwater Long Short Fund (“Lightwater”) for the years ended September 30, 2020 and 2019. The litigation is due to Lightwater claiming damages for matters related to subscription agreements in a prior private placement. Management and legal believe that this lawsuit is without merit and is unpredictable. It is uncertain currently to determine the outcome of this lawsuit or our potential liability, if any.
In March 2019, the Company experienced an unlawful and undiscovered intrusion into its email system, which resulted in fraudulent banking information being relayed regarding the transfer of funds on April 30, 2019 to satisfy the then outstanding debentures. The intruder was able to mislead certain parties with inaccurate requests and instructions and in doing so, caused the funds of $9,200,000 to be transferred into an account of a criminal third party outside North America. The fraud was uncovered on May 3, 2019, and the Company took immediate action to stop or undo the transfer and simultaneously started action to recover the amounts transferred. The Company has successfully retrieved $8,600,000 of the funds and is in process of enforcing a court order to have the rest of the $600,000 of funds returned. The net loss of $600,000 and the legal fees of $400,000 incurred to recover the funds is reflected as “loss from cyber incident” on the statement of income (loss) and comprehensive income.
For the years ended September 30, 2020 and 2019, Patient Home Monitoring, Inc. was classified as a discontinued operation. There are ongoing litigation matters involving Patient Home Monitoring, Inc. During the year ended September 30, 2020, the Company incurred legal fees to defend itself, and in one of the matters, reached a settlement of $67,000. The second matter has also reached a settlement in principle of $639,000, but has not been formally finalized. These matters are directly related to the operations of the disposed business, and as such, are reflected as discontinued operations.
From time to time, the Company is involved in various legal proceedings arising from the ordinary course of business, None of the matters in which the Company is currently involved, either individually, or in the aggregate, have a quantifiable exposure and are not expected to have a material adverse effect on the Company’s consolidated financial position, results of operations, or cash flows.
31
PROTECH HOME MEDICAL CORP.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS AS OF AND FOR THE YEARS ENDED SEPTEMBER 30, 2020 AND 2019
(Tabular dollar amounts expressed in thousands of Canadian Dollars, except per share amounts)
15. Operating Expenses
Year ended September 30,2020 | Year ended September 30,2019 | |||||||
Included in operating expenses: | ||||||||
Employee salary and benefits | 30,550 | 25,947 | ||||||
Bad debt expense (Note 5) | 8,668 | 5,686 | ||||||
Facilities | 2,784 | 3,596 | ||||||
Billing | 2,544 | 1,730 | ||||||
Professional Fees | 1,111 | 1,100 | ||||||
Marketing costs | 603 | 623 | ||||||
All other | 5,722 | 4,844 | ||||||
Total | $ | 51,982 | $ | 43,526 |
16. Income taxes
The Company follows the asset and liability method of accounting for income taxes. Under this method, current income taxes are recognized for the estimated income taxes payable for the current year. Deferred income tax assets and liabilities are recognized for temporary differences between the tax and accounting basis of assets and liabilities as well as for the benefit of losses available to be carried forward to future years for tax purposes are measured using the current or substantively enacted tax rates expected to apply when the differences reverse. A deferred tax asset is recognized to the extent that the recoverability of deferred income tax assets is considered probable.
The Company’s provision for (recovery of) income taxes differs from the amount that is computed by applying the combined federal and state statutory income tax rate of 26% and 24% for the years ended September 30, 2020 and 2019, respectively, in the US to the Company’s net income (loss) before income follows:
Year ended September 30,2020 | Year ended September 30,2019 | |||||||
Loss from continuing operations before income taxes | $ | (5,425 | ) | $ | (8,872 | ) | ||
Expected income tax recovery | $ | (1,413 | ) | $ | (2,129 | ) | ||
Difference in foreign tax rates | (53 | ) | (93 | ) | ||||
Tax rate changes and other adjustments | (981 | ) | 1,467 | |||||
Stock-based compensation | 1,077 | 1,753 | ||||||
State taxes – US | 172 | 148 | ||||||
Other adjustments | - | 129 | ||||||
Prior period adjustments | (279 | ) | (328 | ) | ||||
FX adjustments | (82 | ) | (253 | ) | ||||
Share issuance cost booked through equity | (1,135 | ) | (93 | ) | ||||
Deferred tax assets not recognized (recognized) | 2,866 | (332 | ) | |||||
$ | 172 | $ | 269 | |||||
The Company's income tax provision (recovery) is allocated as follows: | ||||||||
Current tax provision | $ | 172 | $ | 269 | ||||
Deferred tax provision | - | - | ||||||
$ | 172 | $ | 269 |
32
PROTECH HOME MEDICAL CORP.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS AS OF AND FOR THE YEARS ENDED SEPTEMBER 30, 2020 AND 2019
(Tabular dollar amounts expressed in thousands of Canadian Dollars, except per share amounts)
16. Income taxes (Continued)
Deferred tax
The following table summarizes the components of deferred tax:
As at
September 30, 2020 |
As at
September 30, 2019 |
|||||||
Net operating losses – US | $ | 4,230 | $ | 3,675 | ||||
Lease liabilities | 980 | - | ||||||
Fair value changes on debentures – Canada | - | (279 | ) | |||||
Deferred Tax Liabilities | ||||||||
Property, plant and equipment – US | (5,188 | ) | (3,675 | ) | ||||
Prepaid assets – US | (22 | ) | - | |||||
Non-capital Losses – Canada | - | 279 | ||||||
Net deferred taxes | $ | - | $ | - |
Deferred tax assets and liabilities have been offset where they relate to income taxes levied by the same taxation authority and the Company has the legal right and intent to offset.
Unrecognized deferred tax assets
Deferred taxes are provided as a result of temporary differences that arise due to the differences between the income tax values and the carrying number of assets and liabilities. Deferred tax assets have not been recognized in respect of the following deductible temporary differences:
As at
September 30, 2020 |
As at
September 30, 2019 |
|||||||
Intangible asset - Canada | $ | 274 | $ | 294 | ||||
Intangible asset – United States | 15,003 | 18,840 | ||||||
Allowance for bad debts – United States | 23,713 | 11,981 | ||||||
Non-capital losses – United States | - | 14,445 | ||||||
Non-capital losses – Canada | 31,724 | 27,473 | ||||||
Share issuance costs | 3,243 | 1,107 | ||||||
Net capital losses carried forward - Canada | 1.327 | 1,327 | ||||||
Other temporary differences | 4,402 | 923 |
The Canadian non-capital loss carryforwards expire noted in the table below. US loss carryforwards of $10,438,000 expire in 2039, and the remaining $1,758,000 can be carried forward indefinitely. Share issue and financing costs will be fully amortized in 2024. Deferred tax assets have not been recognized in respect of these items because it is not probable that future profit will be available against which the Company can utilize the benefits therefrom.
The Company’s Canadian non-capital income tax losses expire as follows:
2027 | $ | 920 | |||
2028 | 96 | ||||
2029 | 52 | ||||
2030 | 245 | ||||
2031 | 374 | ||||
2032 | 425 | ||||
2033 | 2,205 | ||||
2034 | 11,892 | ||||
2035 | 1,148 | ||||
2036 | 3,073 | ||||
2038 | 3,418 | ||||
2039 | 4,481 | ||||
2040 | 3,095 | ||||
$ | 31,724 |
33
PROTECH HOME MEDICAL CORP.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS AS OF AND FOR THE YEARS ENDED SEPTEMBER 30, 2020 AND 2019
(Tabular dollar amounts expressed in thousands of Canadian Dollars, except per share amounts)
17. Financial instruments
Fair value measurement
Financial instruments carried at fair value on the consolidated statements of financial position are classified using a fair value hierarchy that reflects the significance of the inputs used in making the measurements. The fair value hierarchy has the following levels:
a) | Level 1 – Where financial instruments are traded in active financial markets, fair value is determined by reference to the appropriate quoted market price at the reporting date. Active markets are those in which transactions occur in significant frequency and volume to provide pricing information on an ongoing basis; |
b) | Level 2 – If there is no active market, fair value is established using valuation techniques, including discounted cash flow models. The inputs to these models are taken from observable market data where possible, including recent arm’s length market transaction and comparisons to the current fair value of similar instruments, but where this is not feasible, inputs such as liquidity risk, credit risk and volatility are used; and |
c) | Level 3 – Valuation in this level are made with inputs other than observable market data. |
Cash and cash equivalents are classified as Level 1. The warrant derivative financial liability has been valued using level 3 inputs from the fair value hierarchy. The convertible debentures have been valued using Level 1 input.
Financial instrument risk exposure
The Company’s activities expose it to a variety of financial risks: market risk (including price risk, currency risk and interest rate risk), credit risk, and liquidity risk. These risks arise from the normal course of operations and all transactions are undertaken to support the Company’s ability to continue as a going concern. Risk management is carried out by management under policies promulgated by the Board of Directors. The Company’s overall risk management program seeks to minimize potential adverse effects on the Company’s financial performance.
Credit Risk
Credit risk is the risk that one party to a financial instrument will fail to discharge an obligation and cause the other party to incur a financial loss. Financial instruments that potentially subject the Company to credit risk are primarily cash and accounts receivable. Each subsidiary places its cash with one major financial institution. At times, the cash in the financial institution is temporarily more than the amount insured by the Federal Deposit Insurance Corporation. Substantially all accounts receivable is due under fee-for-service contracts from third party payors, such as insurance companies and government-sponsored healthcare programs, or directly from patients,. Receivables generally are collected within industry norms for third-party payors. The Company continuously monitors collections from its clients and maintains an allowance for bad debts based upon any specific payor collection issues that are identified and historical experience. The expected loss rates are based on the historical loss rates and are adjusted to reflect current and forward-looking information on macroeconomic factors affecting the ability of the customers to settle the receivables, such as the unemployment rate of the states in which it conducts business. Trade receivables are written off where there is no reasonable expectation of recovery. Indicators that there is no reasonable expectation of recovery include, among others, a failure to make contractual payments after multiple collection efforts, including third=party collection agencies.
As at September 30, 2020 and September 30, 2019, Company has approximately 10% of receivables due from Medicare. As this is a Federal health insurance program in the United States, there is nominal credit risk associated with these balances.
Currency risk
Currency risk is the risk that the Company will be subject to foreign currency fluctuations in satisfying obligations related to its foreign activities.
Although the Company uses the Canadian dollar as its reporting currency, it realizes all of its sales and makes most of its purchases in US dollars, therefore subjecting the Company to constant foreign exchange exposure. The Company monitors and forecasts the values of statement of financial position exposures and from time to time could authorize the use of derivative financial instruments, such as forward foreign exchange contracts to economically hedge a portion of foreign currency fluctuations. As the Company maintains nearly all its operating assets in the US, the foreign exchange risk is reporting only, not realized, therefore no exchange contracts have been deemed appropriate.
Based on the above net exposure at September 30, 2020 and September 30, 2019, depreciation or appreciation of the US dollar against the Canadian dollar would result in an insignificant effect in net loss. The Company has not employed any currency hedging programs during the years ended September 30, 2020 and 2019.
34
PROTECH HOME MEDICAL CORP.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS AS OF AND FOR THE YEARS ENDED SEPTEMBER 30, 2020 AND 2019
(Tabular dollar amounts expressed in thousands of Canadian Dollars, except per share amounts)
17. Financial instruments (Continued)
Liquidity risk
Liquidity risk is the risk that the Company will not be able to meet its financial obligations as they become due. The Company’s approach in managing liquidity is to ensure, to the extent possible, that it will have sufficient liquidity to meet its liabilities when due by continuously monitoring actual and budgeted cash flows and monitoring financial market conditions for signs of weakness.
As of September 30, 2020, the Company faces no material liquidity risk and can meet all its current financial obligations as they become due and payable. The Company has $35,578,000 of liabilities that are due within one year but has $60,402,000 of current assets to meet those obligations. Of the $22,886,000 of long-term liabilities, $22,796,000 are due between one and five years, and $90,000 is due after five years
Interest rate risk
Interest rate risk is the risk that the future cash flows of a financial instrument will fluctuate because of changes in market interest rates. Interest rate risk is limited to potential decreases on the interest rate offered on cash and cash equivalents held with Chartered Canadian and registered US financial institutions. The Company considers this risk to be immaterial. The interest on the debenture and equipment loans is not subject to cash flow interest rate risk as these instruments bear interest at fixed rates.
18. (Loss) income per share
(Loss) income per common share is calculated using the weighted average number of common shares outstanding during the period. Diluted (loss) income per share amounts are calculated giving effect to the potential dilution that would occur if securities or other contracts to issue common shares were exercised or converted to common shares by assuming the proceeds received from the exercise of stock options and warrants are used to purchase common shares at the prevailing market rate. Dilutive amounts are not presented when effect of computation is anti-dilutive due to losses incurred. Accordingly, there is no difference in the amounts presented for basic and diluted loss per share.
The following reflects the earnings and share data used in the basic and diluted loss per share computations:
Year ended | Year ended | |||||||
September 30,
2020 |
September 30,
2019 |
|||||||
Net loss from continuing operations | $ | (5,597 | ) | $ | (9,141 | ) | ||
Net income from discontinued operations | (1,158 | ) | 1,755 | |||||
Basic weighted average number of shares | 90,884 | 82,860 | ||||||
Diluted weighted average number of shares | 90,884 | 82,860 | ||||||
Basic – continuing operations | (0.06 | ) | (0.11 | ) | ||||
Basic – discontinued operations | (0.01 | ) | 0.02 | |||||
Diluted – continuing operations | (0.06 | ) | (0.11 | ) | ||||
Diluted - discontinued operations | (0.01 | ) | 0.02 |
The outstanding warrants and stock options whose effect were anti-dilutive were excluded from the calculation of the diluted (loss) income per share for the years ended September 30, 2020 and 2019.
19. Related party transactions
On October 1, 2015, the Company entered into four market rate, seven-year, operating leases for office, warehouse, and retail space with a rental Company affiliated with the Company’s current Chief Executive Officer. The leases, for six different locations, have a combined area of approximately 74,520 square feet. Rental payments under this lease agreement are approximately US $52,000 per month, plus taxes, utilities and maintenance. The lease is recorded as a lease liability. During fiscal 2019, the Company also paid $1,853,000 representing taxes, penalties and interest on behalf of the Chief Executive Officer. This was due to various tax expenses incurred as a result of a section 338(h)(10) tax election that was made for one of the past acquisitions. These are recorded as acquisition related cost on statement of loss and comprehensive loss.
35
PROTECH HOME MEDICAL CORP.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS AS OF AND FOR THE YEARS ENDED SEPTEMBER 30, 2020 AND 2019
(Tabular dollar amounts expressed in thousands of Canadian Dollars, except per share amounts)
19. Related party transactions (Continued)
Board of directors fees were $229,000 and $236,000 for the years ended September 30, 2020 and 2019, respectively.
Key management personnel also participate in the Company’s share option program (see Note 12). The Company recognized compensation expense relating to key management personnel as follows:
Year
ended
|
Year
ended
|
|||||||
Salaries and Benefits | $ | 1,056 | $ | 1,040 | ||||
Stock-based compensation (Note 12) | - | 858 | ||||||
Total | $ | 1,056 | $ | 1,898 |
In addition to salaries and benefits above, bonuses of $1,056,000 and $519,000 for the years ended September 30, 2020 and 2019, respectively, were also provided to key management and were recorded as reduction of equity through issuance costs and expensed as transaction costs related to issuance of securities.
On May 10, 2019, the Company entered into a secured loan agreement with one of the Company’s shareholders for $2,600,000. The loan bore interest at prime rate to be paid out semi-annually commencing on June 2019 and thereafter on every June 30 and December 31. The loan was to mature on May 10, 2021; however, it was fully repaid during the year ended September 30, 2019.
20. Discontinued Operations - Patient Home Monitoring, Inc.
On July 29, 2019, the Company sold the assets of Patient Home Monitoring, Inc. The major classes of assets and liabilities of Patient Home Monitoring, Inc. sold are as follows:
Year Ended | ||||
September 30,
2019 |
||||
Accounts receivable | $ | 1,668 | ||
Inventory | 374 | |||
Property and equipment, net | 890 | |||
Assets disposed | 2,932 | |||
Proceeds from sale | 4,454 | |||
Gain on sale of business | $ | 1,522 |
For the years ended September 30, 2020 and 2019, Patient Home Monitoring, Inc. was classified as a discontinued operation. There are ongoing litigation matters involving Patient Home Monitoring, Inc. During the year ended September 30, 2020, the Company incurred legal fees of $452,000 to defend itself, and in one of the matters, reached a settlement of $67,000. The second matter has also reached a settlement in principle of $639,000 but has not been formally finalized. These matters are directly related to the operations of the disposed business, and as such, are reflected as discontinued operations.
Year
ended
September 30, 2020 |
Year ended
September 30, 2019 |
|||||||
Revenue | $ | - | $ | 3,418 | ||||
Operating expenses | 1,158 | 2,807 | ||||||
Depreciation | - | 377 | ||||||
Provision for Income taxes | - | 1 | ||||||
Net income (loss) from discontinued operations | $ | (1,158 | ) | $ | 233 |
36
PROTECH HOME MEDICAL CORP.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS AS OF AND FOR THE YEARS ENDED SEPTEMBER 30, 2020 AND 2019
(Tabular dollar amounts expressed in thousands of Canadian Dollars, except per share amounts)
21. Subsequent Events
Sleepwell, LLC
Effective October 23, 2020, the Company, through one of its indirect wholly-owned subsidiaries, entered into a purchase agreement to acquire Sleepwell, LLC, a Georgia company, and its wholly-owned subsidiary, Halsom Home Care, an Ohio company (collectively, “Sleepwell”). The purchase price was approximately US$11,100,000, of which approximately US$6,600,000 was paid in cash at closing, approximately US$2,800,000 was paid in common stock in January 2021, and approximately US$1,700,000 of holdbacks payable in common stock of US$1,100,000 on August 31, 2022 and US$600,000 in cash, payable upon resolution of post-closing adjustments, if any, and Sleepwell’s PPP loan.
Pro forma Sleepwell revenues and net income had the acquisition occurred October 1, 2019 would have been $13,000,000 and $2,500,000, respectively. The Company is in the process of gathering the information required to allocate the purchase price to the acquired tangible and intangible assets as of the acquisition date.
22. Restatement of Prior Period
During the preparation of the consolidated financial statements as of and for the year ended September 30, 2020, the Company identified certain errors and adjustments in the application of its accounting policies. As such, the financial statements as of and for the year ended September 30, 2019 have been restated to reflect the correction of these adjustments, as set out below.
a) | Deferred revenue |
The Company rents medical equipment to customers for a fixed monthly amount on a month-to-month basis. During prior periods, the monthly rental revenue was not recognized on a pro rata basis for a given month. The appropriate recognition resulted in an increase in deferred revenue as at September 30, 2019 and 2018 by $1,904,000, and $1,904,000 respectively.
b) | Classification of expenses |
The Company determined that expenses classified based on nature is more reliable and relevant. Accordingly, certain expenses were reclassified and the statement of loss and other comprehensive loss for the year ended September 30, 2019 has been restated to reflect such classification.
c) | Classification of leases |
Equipment obtained on loans were classified as finance leases instead of equipment loans. Accordingly, finance leases were reclassified as equipment loans, and the statement of financial position as at September 30, 2019 has been restated to reflect such classification.
The financial statement line items which have been restated are as follows:
37
PROTECH HOME MEDICAL CORP.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS AS OF AND FOR THE YEARS ENDED SEPTEMBER 30, 2020 AND 2019
(Tabular dollar amounts expressed in thousands of Canadian Dollars, except per share amounts)
22. Restatement of Prior Period (Continued)
Note 7 additions in property and equipment reclassified as transfers from inventory as follows: | ||||||||||||
Previously
Reported |
Adjustments | As Restated | ||||||||||
Additions of rental equipment | $ | 11,269 | $ | (11,269 | ) | $ | - | |||||
Transfers from inventory | $ | - | $ | 11,269 | $ | 11,269 |
38
Exhibit 99.80
Year End 2020 | |
Management’s Discussion and Analysis For the Years Ended September 30, 2020 and September 30, 2019 |
Protech Home Medical Corp.
|
|
MANAGEMENT’S DISCUSSION AND ANALYSIS September 30, 2020 and 2019 (Tabular dollar amounts expressed in thousands, except per share amounts) |
The following Management’s Discussion and Analysis (“MD&A”) of the financial condition and results of operations of Protech Home Medical Corp., formerly Patient Home Monitoring Corp., and its subsidiaries (“Protech” or the “Company”), prepared as of January 31, 2021 and should be read in conjunction with the consolidated financial statements for the year ended September 30, 2020, including the notes therein. The consolidated financial statements have been prepared in accordance with International Financial Reporting Standards (“IFRS”). Unless otherwise specified, all financial data is presented in Canadian dollars. The words “we”, “our”, “us”, “Company”, and “Protech” refer to Protech Home Medical Corp. and/or the management and employees of the Company.
Additional information relevant to the Company is available for review on SEDAR at www.sedar.com.
Table of Contents
Page 2 | Caution Regarding Forward-Looking Statements |
Page 3 | Selected Annual Information |
Page 4 | About Our Business and Operating Results |
Page 9 | Financial Position |
Page 12 | Accounting and Disclosure Matters |
Page 15 | Financial Instruments and Risk Management |
Page 16 |
Risk Factors |
CAUTION REGARDING FORWARD-LOOKING STATEMENTS
Information included or incorporated by reference in this report may contain forward-looking statements. This information may involve known and unknown risks, uncertainties, and other factors which may cause our actual results, performance, or achievements to be materially different from the future results, performance, or achievements expressed or implied by any forward-looking statements. Forward-looking statements, which involve assumptions and describe our future, strategies, and expectations, are generally identifiable by use of the words “may,” “will,” “should,” “expect,” “anticipate,” “estimate,” “believe,” “plan,” “intend” or “project” or the negative of these words or other variations on these words or comparable terminology. Readers are cautioned regarding statements discussing profitability; growth strategies; anticipated trends in our industry; our future financing plans; and our anticipated needs for working capital. Actual events or results may differ materially from those discussed in forward-looking statements. There can be no assurance that the forward-looking statements contained in this report will in fact occur. The Company bases its forward-looking statements on information currently available to it and assumes no obligation to update them.
THE FORWARD-LOOKING INFORMATION CONTAINED IN THIS MD&A PRESENTS THE EXPECTATIONS OF THE COMPANY AS OF THE DATE OF THIS MD&A AND, ACCORDINGLY, IS SUBJECT TO CHANGE AFTER SUCH DATE. READERS SHOULD NOT PLACE UNDUE IMPORTANCE ON FORWARD-LOOKING INFORMATION AND SHOULD NOT RELY UPON THIS INFORMATION AS OF ANY OTHER DATE. WHILE THE COMPANY MAY ELECT TO, THE COMPANY DOES NOT UNDERTAKE TO UPDATE THIS INFORMATION AT ANY PARTICULAR TIME EXCEPT AS REQUIRED BY APPLICABLE SECURITIES LEGISLATION
Page | 2
|
MANAGEMENT’S DISCUSSION AND ANALYSIS September 30, 2020 and 2019 (Tabular dollar amounts expressed in thousands, except per share amounts) |
FISCAL 2020 HIGHLIGHTS
- | Increased revenues for the year ended September 30, 2020 to $98 million, or 23%, from the prior year |
- | Completed three acquisitions during the year ended September 30, 2020 and a fourth subsequent to year end |
- | Completed a bought deal public offering for gross proceeds of $31.8 million |
- | Increased the number of equipment set-ups to 253,113 for the year ended September 30, 2020 from 207,762 in the prior year, an increase of 22% |
- | Increased the number of respiratory resupply set-ups to 61,468 for the year ended September 30, 2020 from 46,639 in the prior year, an increase of 32% |
- | Generated Adjusted EBITDA (1) of $20.8 million, a 41% increase from the prior year. |
SELECTED ANNUAL INFORMATION
For the years ended | ||||||||
September 30, 2020 | September 30, 2019 | |||||||
Unique patients | 91,650 | 76,146 | ||||||
Number of equipment set-ups or deliveries | 253,113 | 207,762 | ||||||
Respiratory resupply set-ups or deliveries | 61,468 | 46,639 | ||||||
Revenue | $ | 97,755 | $ | 80,967 | ||||
Inventory sold | $ | 26,826 | $ | 22,583 | ||||
Adjusted EBITDA(1) | $ | 20,800 | $ | 14,801 | ||||
Adjusted EBITDA % | 21 | % | 18 | % | ||||
Cash at year end | $ | 38,985 | $ | 12,855 |
(1) | Refer to page six for definition of Adjusted earnings before interest, taxes, depreciation, and amortization (“EBITDA”) |
The words “we”, “our”, “us”, “Company”, and “Protech” refer to Protech Home Medical Corp. and/or the management and employees of the Company.
Page | 3
|
MANAGEMENT’S DISCUSSION AND ANALYSIS September 30, 2020 and 2019 (Tabular dollar amounts expressed in thousands, except per share amounts) |
ABOUT OUR BUSINESS
Protech business objective
The explosive growth in the number of elderly patients in the US healthcare market is creating pressure to provide more efficient delivery systems. Healthcare providers, such as hospitals, physicians and pharmacies, are seeking partners that can offer a range of products and services that improve outcomes, reduce hospital readmissions and help control costs. Protech fills this need by delivering a growing number of specialized products and services to achieve these goals. Protech seeks to provide an ever-expanding line of products and services over larger geographic regions within the United States using several growth strategies.
Future Outlook
Protech expects to generate net profit and positive adjusted EBITDA, excluding IFRS treatment of non-cash items. Our top priority continues to be the generation of operational net profit, positive cash flow, and positive EBITDA in fiscal year 2020 and beyond. As we continue to expand in our existing markets, we plan to leverage our business platforms to enter new markets. As we continue to grow and achieve scale, the increasing cash generated from operations will be used to market our service and to gain market share. Our continued integration and rationalization, as well as our acquisitions, have given us a focus and path towards profitability at each business unit.
Going forward, we seek to find ways to continue to grow our customer base and penetrate these markets, while continuing to streamline our operational platform and generate positive cash flow and operational profits. We will continue to improve on operational efficiencies and call center management as they are key execution points in order to maintain our healthy gross margin while growing revenues via the cross selling of services to existing and acquired patients.
OPERATING RESULTS
Accounting policies and estimates
The consolidated financial statements for the year ended September 30, 2020 are prepared under International Financial Reporting Standards (“IFRS”) issued by the governing body of the International Accounting Standards Board (“IASB”). The preparation of consolidated financial statements in conformity with IFRS requires management to make estimates and assumptions. These estimates and assumptions affect the reported amounts of assets and liabilities, disclosures of contingent assets and liabilities, and the reported amounts of revenues and expenses for the period of consolidated financial statements.
IFRS accounting treatment
Management does not rely upon non-cash IFRS accounting treatment of certain items such as impairment of goodwill and intangible assets, changes in the fair value of financial derivatives, stock-based compensation and amortization of intangible assets when planning, monitoring, and evaluating the Company’ s performance or in making financial decisions.
Non-IFRS measures
Throughout this MD&A, references are made to several measures which are believed to be meaningful in the assessment of the Company’ s performance. These metrics are non-standard measures under IFRS and may not be identical to similarly to it led measures reported by other companies. Also, in the future, we may disclose different non- IFRS financial measures in order to help our investors more meaningfully evaluate and compare our future results of operations to our previously reported results of operations. Readers are cautioned that the disclosure of these items is meant to add to, and not replace, the discussion of financial results as determined in accordance with IFRS. The primary purpose of these non-IFRS measures is to provide supplemental information that may prove useful to investors who wish to consider the impact of certain non-cash or uncontrollable items on the Company’s operating performance.
EBITDA and Adjusted EBITDA
In calculating EBITDA and adjusted EBITDA certain items (mostly non-cash) are excluded from net loss including interest, taxes, depreciation, amortization, (gain)/loss on derivative financial liability, stock-based compensation and goodwill and intangible asset impairment charges. Set forth below are descriptions of the financial items that have been excluded from net income or loss to calculate EBITDA and Adjusted EBITDA and the material limitations associated with using these non-IFRS financial measures as compared to net income or loss.
- | Depreciation and amortization expense may be useful for investors to consider because they generally represent the wear and tear on our property and equipment used in our operations and amortization of intangibles valued in purchase accounting. However, we do not believe these charges necessarily reflect the current and ongoing cash charges related to our operating costs. |
Page | 4
|
MANAGEMENT’S DISCUSSION AND ANALYSIS September 30, 2020 and 2019 (Tabular dollar amounts expressed in thousands, except per share amounts) |
- | The amount of interest expense we incur or interest income we generate may be useful for investors to consider and may result in current cash inflows or outflows. Accretion expense is the expense related to the value of the old derivatives the Company had in place. The Company paid off the debenture early, which was due December 2019. |
- | However, we do not consider the amount of interest expense to be a representative component of the day-to-day operating performance of our business. |
- | Change in fair value of financial liabilities is the change in value of the debenture since its issuance in March 2019 and the warrant since its issuance in June 2020, these changes are non-cash. |
- | Loss on early extinguishment of debenture is the loss incurred from the early payoff of the debenture due December 2019 but paid in May 2019. |
- | Income tax expense may be useful for investors to consider because it generally represents the taxes which may be payable for the period and the change in deferred income taxes and may reduce the amount of funds otherwise available for use. However, we do not consider the amount of income tax expense to be a representative component of the day-to-day operating performance of our business. |
- | Stock-based compensation may be useful for investors to consider because it is an estimate of the non-cash component of compensation received by the Company’s directors, officers, employees and consultants. However, stock-based compensation is being excluded from the Company’ s operating expenses because the decisions which gave rise to these expenses were not made to increase revenue in a particular period but were made for the Company’ s long-term benefit over multiple periods. While strategic decisions, such as those to issue stock-based awards are made to further the Company’ s long-term strategic objectives and do impact the Company’s earnings under IFRS, these items affect multiple periods and management is not able to change or affect these items within any period. |
- | Goodwill and intangible asset impairment may be useful for investors to consider because it represents a write-down in the value of goodwill and intangible assets acquired in business combinations. Intangible assets are recognized upon business combinations at their fair value based on expected future cash flows. Goodwill arises as a result of the difference in the purchase price of a business and the fair value of the underlying identifiable tangible and intangible assets. Goodwill and intangible asset impairment charges arise when the present value of forecasted cash flows is insufficient to support the carrying value of net assets. However, impairment charges are non-cash as they relate to an adjustment of the carrying value of an intangible asset or goodwill on the balance sheet. |
- | Due to a cyber-scam incident in early 2019, there was a fraudulent intrusion into the Company’s email system and funds were misappropriated to a wrong bank account. See further detail in the contingency section for reference. |
- | Acquisition-related costs includes taxes that the Company paid during the year ended September 30, 2019 for a 338(h) election from a previous acquisition. |
- | Transaction costs related to issuance of securities were recorded during the year ended September 30, 2020 issued in 2019 due to the issuance of debentures, classified as fair value through profile/loss. All these costs were recorded directly to the income statement. |
Management uses both IFRS and non-IFRS measures when planning, monitoring, and evaluating the Company’s performance.
The following table of adjusted EBITDA shows the Company’s IFRS measures reconciled to EBITDA (non-IFRS measure) for the indicated periods. The table of net (loss) income is also measured based on IFRS. The tables are shown net of discontinued operations.
Page | 5
|
MANAGEMENT’S DISCUSSION AND ANALYSIS September 30, 2020 and 2019 (Tabular dollar amounts expressed in thousands, except per share amounts) |
Year ended September 30, 2020 | Year ended September 30, 2019 | |||||||
Net loss from continuing operations | $ | (5,597 | ) | $ | (9,141 | ) | ||
Add back: | ||||||||
Depreciation and amortization | 19,565 | 13,969 | ||||||
Interest expense, net | 2,480 | 2,510 | ||||||
Transaction costs related to issuance of securities | 284 | 1,758 | ||||||
Loss (gain) on fair value of financial liabilities | 3,546 | (1,129 | ) | |||||
Loss on early extinguishment of debenture | - | 1,106 | ||||||
Provision for income taxes | 172 | 269 | ||||||
EBITDA | $ | 20,450 | $ | 9,342 | ||||
Stock-based compensation | 230 | 2,063 | ||||||
Loss from cyber incident | - | 1,012 | ||||||
Acquisition related costs | 120 | 1,853 | ||||||
Impairment of goodwill | - | 531 | ||||||
Adjusted EBITDA | $ | 20,800 | $ | 14,801 |
Year ended September 30, 2020 |
Year
ended
September 30, 2019 |
|||||||
Revenue | $ | 97,755 | $ | 80,967 | ||||
Inventory Sold | 26,826 | 22,583 | ||||||
Operating expenses | 51,982 | 43,526 | ||||||
Depreciation | 18,653 | 13,366 | ||||||
Amortization of intangible assets | 912 | 603 | ||||||
Stock-based compensation | 230 | 2,063 | ||||||
Impairment of goodwill | - | 531 | ||||||
Loss from cyber incident | - | 1,012 | ||||||
Acquisition related costs | 120 | 1,853 | ||||||
Transaction costs related to debenture issuance | 284 | 1,758 | ||||||
Change in fair value of financial liabilities | 3,546 | (1,129 | ) | |||||
Loss on early extinguishment of debenture | - | 1,106 | ||||||
Other expense / (income) | (1,754 | ) | 77 | |||||
Gain on disposal of property and equipment | (99 | ) | (20 | ) | ||||
Interest expense, net of income | 2,480 | 2,510 | ||||||
Provision for income taxes | 172 | 269 | ||||||
Net loss from continuing operations | (5,597 | ) | (9,141 | ) | ||||
Income (loss) from discontinued operations | (1,158 | ) | 1,755 | |||||
Net (loss) income | $ | (6,755 | ) | $ | (7,386 | ) | ||
(Loss) income per share | ||||||||
Basic - continuing operations | $ | (0.06 | ) | $ | (0.11 | ) | ||
Basic - discontinued operations | $ | (0.01 | ) | $ | 0.02 | |||
Diluted - continuing operations | $ | (0.06 | ) | $ | (0.11 | ) | ||
Diluted - discontinued operations | $ | (0.01 | ) | $ | 0.02 |
Revenue
For the year ended September 30, 2020, revenue totaled $97,755,000 an increase of $16,788,000 or 21%, compared to the year ended September 30, 2019. The increase in revenues is due to the three acquisitions during the year ended September 30, 2020 and organic growth.
Inventory sold
For the year ended September 30, 2020, inventory sold totaled $26,826,000 versus $22,583,000 for the year ended September 30, 2019. The increase was primarily due to the acquisitions of three businesses during the year and commensurate with the revenue growth.
Page | 6
|
MANAGEMENT’S DISCUSSION AND ANALYSIS September 30, 2020 and 2019 (Tabular dollar amounts expressed in thousands, except per share amounts) |
Operating expenses
For the year ended September 30, 2020, operating expenses were $51,982,000 an increase of $8,456,000 from $43,526,000 for the year ended September 30, 2019. The increase was primarily due to the acquisitions of three businesses during the year and commensurate with the revenue growth.
Depreciation expense
Depreciation expense increased by $5,827,000 to $18,653,000 for the year ended September 30, 2020. Approximately $2,000,000 was due to the adoption of IFRS 16, Leases (see Note 3 to the consolidated financial statements). The remaining increase is primarily due to the acquisitions of three businesses during the year ended September 30, 2020.
Stock-based compensation
For the year ended September 30, 2020, there is an expense for the stock-based compensation of $230,000 compared to an expense for the stock-based compensation of $2,063,000 for the year ended September 30, 2019, due to options becoming vested during 2019.
Interest expense
Interest expense for the year ended September 30, 2020 was virtually flat compared to the year ended September 30, 2020. Interest expense increased due to the adoption of IFRS 16, Leases (see Note 3 to the consolidated financial statements) and decreased due to decline in accretion and amortization of financing costs from the debenture that was repaid during the year ended September 30, 2019.
Change in fair value of financial liabilities
The Company has two financial liabilities that are recorded at fair value through profit or loss. The debenture issued during 2019 is valued at fair value using the current trading price. The change in fair value for the debenture was a loss of $3,279,000 for the year ended September 30, 2020 and a gain of $1,034,000 for the year ended September 30, 2019. Warrants issued with the June 2020 bought deal are valued using the Black-Scholes pricing model, which resulted in a loss of $267,000 for the year ended September 30, 2020. During the year ended September 30, 2019, there was a gain of $95,000 on warrants that expired.
FINANCIAL POSITION
As at | As at | |||||||
September 30, 2020 | September 30, 2019 | |||||||
Cash | $ | 38,985 | $ | 12,855 | ||||
Accounts receivable, inventory and prepaid assets | 21,417 | 17,928 | ||||||
Property and equipment | 22,240 | 19,496 | ||||||
Other assets | 13,493 | 4,886 | ||||||
Total assets | $ | 96,135 | $ | 55,165 | ||||
Accounts payable and other current liabilities | $ | 32,526 | $ | 21,081 | ||||
Long term debt and other long-term liabilities | 25,938 | 16,839 | ||||||
Total Liabilities | 58,464 | $ | 37,920 | |||||
Shareholders’ equity | $ | 37,671 | $ | 17,245 |
Liquidity
Management considers liquid assets to consist of cash and its line of credit availability. As of September 30, 2020, the Company had cash on hand of $38,985,000 and line of credit availability of $15,900,000. The Company’s approach in managing liquidity is to ensure, to the extent possible, that it will have enough liquidity to meet its liabilities when due by continuously monitoring actual and budgeted cash flows and monitoring financial market conditions for signs of weakness.
As of September 30, 2020, the Company faces no material liquidity risk and can meet all its current financial obligations as they become due and payable. The Company has $32,526,000 liabilities that are due within one year but has $60,402,000 of current assets to meet those obligations.
Capital management
The Company considers its capital to be shareholders’ equity, which is comprised of share capital, contributed surplus, and accumulated other comprehensive income and deficit, which totaled $37,671,000 at September 30, 2020, along with long-term debt, which totaled $25,938,000 at September 30, 2020.
Page | 7
|
MANAGEMENT’S DISCUSSION AND ANALYSIS September 30, 2020 and 2019 (Tabular dollar amounts expressed in thousands, except per share amounts) |
The Company raises capital, as necessary, to meet its needs and take advantage of perceived opportunities and, therefore, does not have a numeric target for its capital structure. Funds are primarily secured through equity capital, convertible debentures raised by way of private placements, and debt instruments.
On June 29, 2020, the Company completed a bought deal public offering, a concurrent brokered private placement, and a non-brokered private placement to the Company’s Chief Executive Officer and a director of the Company, for 25,001,000, 1,750,000, and 927,826 units, respectively. The 1,750,000 units were subject to a 4-month restriction. Each unit issued was issued at a price of $1.15 for total gross proceeds of $31,831,000 and consisted of one common share and one-half of one common share purchase warrant (each whole warrant, a “Warrant”). The fair value of the Warrants was recorded as a liability and valued at June 29, 2020, at $0.16 for a total of $2,208,000, using the Black-Scholes pricing model. Upon exercise, the warrant liability will be derecognized and transferred to equity.
Issuance costs of $3,865,000 in cash, including underwriters’ commission of $1,692,000, were incurred. These costs were allocated ratably between common shares and warrant liability, with $3,581,000 recorded as a reduction of shareholders’ equity and $284,000 recorded as “Transaction costs on issuance of financial liabilities” on the consolidated statement of (loss) income. The Company issued compensation options to the underwriter for 1,471,305 shares at the issue price of $1.15 for a period of two years from the closing of the offering.
On November 2, 2018, the Company completed a bought deal offering of 5,649,600 common shares and a non-brokered private placement of 1,833,333 common shares to officers and directors at a price of $0.60 per share for aggregate gross proceeds to the company of $4,490,000. Issuance costs of $343,000 in cash were incurred. The Company also issued 367,224 share compensation options to the underwriter at a price of $0.60 per share. All of these options were exercised during the year ended September 30, 2020.
Management reviews its capital management approach on an ongoing basis and believes that this approach, given the relative size of the Company, is reasonable.
The Company invests all capital that is surplus to its immediate operational needs in short-term, liquid and highly rated financial instruments, such as cash and short-term guarantee deposits, held with major Canadian and US financial institutions.
The Company had the following equity instruments outstanding at September 30, 2020 and September 30, 2019:
As
at
September 30, 2020 (000’s) |
As
at
September 30, 2019 (000’s) |
|||||||
Common shares | 112,277 | 83,589 | ||||||
Warrants | 13,839 | - | ||||||
Options | 10,506 | 11,392 | ||||||
Compensation options | 1,411 | 367 |
Financing
Historically and currently, the Company has financed its operations primarily from cash flow from operations, finance leases, debentures, equity financing and through the issuance of shares to acquire businesses.
Debentures
On March 7, 2019, the Company issued $15,000,000 in 8.0% Convertible Unsecured Debentures due March 7, 2024. The debentures are convertible into common shares at $1.30/share. After three years, the Company can force conversion of the outstanding principal if the daily volume weighted average price of the common shares exceeds $1.62/share for twenty consecutive trading days. The debentures were valued at fair value using the current trading price of 115% and 93% as of September 30, 2020 and 2019, with a gain in fair market value being recorded of $1,034,000 for year ended September 30, 2019. In connection with the new debt issued, the Company issued broker warrants to purchase 519,231 common shares. Each warrant entitles the holder to purchase one common share of the Company at a price of $1.30 until March 7, 2024. The warrants were valued using Black-Scholes and are included as equity warrants. The transaction costs of $1,758,000 are fully expensed on the income statement.
Page | 8
|
MANAGEMENT’S DISCUSSION AND ANALYSIS September 30, 2020 and 2019 (Tabular dollar amounts expressed in thousands, except per share amounts) |
Equipment Loans
The Company is offered financing arrangements from their suppliers and their suppliers designated financial institution, in which payments for certain invoices or products can be financed and paid over an extended period. The financial institution pays the supplier when the original invoice becomes due, and the Company pays the third-party financial institution over a period of time. In some cases, the supplier accepts a discounted amount from the financial institution and the Company repays the financial institution the face amount of the invoice with no stated interest, in twelve equal monthly installments. The Company uses a 6% incremental borrowing rate to impute interest on these arrangements. In other cases, the supplier receives the full invoice price and Company pays a stated interest rate to the financial institution, ranging from 5.6% to 8.0%, with the terms of the financing ranging from 12 to 48 months. Future payments on these liabilities are as follows:
Less than one year | $ | 5,751 | ||
Between 1 and 5 years | 585 | |||
Total | $ | 6,336 |
Lease Liabilities
The Company enters in lease for real estate and vehicles. Real estate leases are valued at the net present value of the future lease payments at an 8% incremental borrowing rate. Vehicle leases are recorded at rate implicit in the lease based on the current value and the estimated residual value of the vehicle, equating to rates ranging from 1.7% to 10.4%. Future payments on these liabilities are as follows:
Less than 1 year | $ | 3,193 | ||
Between 1 and 5 years
More than five years |
4,665 93 |
|||
Total | 7,951 | |||
Less: finance charges | (926 | ) | ||
Lease liabilities | 7,025 | |||
Current portion of lease liabilities | (2,717 | ) | ||
Long-term portion of lease liabilities | $ | 4,308 |
Revolving Credit Facility
On September 18, 2020, the Company entered a US$20,000,000 asset-based revolving credit facility with a US bank. No balance was outstanding from September 18 through September 30, 2020. The facility matures in September 2024 and bears interest at floating rate of LIBOR plus 2.0% to 2.5%, with a LIBOR floor of 0.5% and has an unused fee of 0.3%. The facility is subject to a borrowing base based on a percentage of eligible accounts receivable and customer rental contracts, which totaled approximately US$11,900,000 as of September 30, 2020. Issuance costs of $755,000 were incurred, are recorded in “other long-term assets” on the consolidated balance sheet and are being amortized on a straight-line over the four-year term of the facility.
Contingencies
The Company has been in litigation with Lightwater Long Short Fund (“Lightwater”) for the years ended September 30, 2020 and 2019. The litigation is due to Lightwater claiming damages for matters related to subscription agreements in a prior private placement. Management and legal believe that this lawsuit is without merit and is unpredictable. It is uncertain currently to determine the outcome of this lawsuit or our potential liability, if any.
In March 2019, the Company experienced an unlawful and undiscovered intrusion into its email system, which resulted in fraudulent banking information being relayed regarding the transfer of funds on April 30, 2019 to satisfy the then outstanding debentures. The intruder was able to mislead certain parties with inaccurate requests and instructions and in doing so, caused the funds of $9,200,000 to be transferred into an account of a criminal third party outside North America. The fraud was uncovered on May 3, 2019, and the Company took immediate action to stop or undo the transfer and simultaneously started action to recover the amounts transferred. The Company has successfully retrieved $8,600,000 of the funds and is in process of enforcing a court order to have the rest of the $600,000 of funds returned. The net loss of $600,000 and the legal fees of $400,000 incurred to recover the funds is reflected as “loss from cyber incident” on the statement of income (loss) and comprehensive income.
From time to time, the Company is involved in various legal proceedings arising from the ordinary course of business, None of the matters in which the Company is currently involved, either individually, or in the aggregate, is expected to have a material adverse effect on the Company’s consolidated financial position, results of operations, or cash flows
Page | 9
|
MANAGEMENT’S DISCUSSION AND ANALYSIS September 30, 2020 and 2019 (Tabular dollar amounts expressed in thousands, except per share amounts) |
Quarterly operating results from continuing operations
Year ended September 30, 2020 | ||||||||||||||||
Quarter ended Sep. 30, 2020 | Quarter ended Jun. 30, 2020 | Quarter ended Mar. 31,2020 | Quarter ended Dec. 31, 2019 | |||||||||||||
Revenue | $ | 25,016 | $ | 25,869 | $ | 24,101 | $ | 22,769 | ||||||||
Net income (loss) from continuing operations | (2,164 | ) | (3,731 | ) | 2,056 | (1,758 | ) | |||||||||
Net income (loss) per share – continuing operations | (0.02 | ) | (0.04 | ) | 0.02 | (0.02 | ) | |||||||||
Total assets | 96,135 | 97,497 | 65,421 | 61,517 |
Year ended September 30, 2019
Quarter ended Sep. 30, 2019 | Quarter ended Jun. 30, 2019 | Quarter ended Mar. 31,2019 | Quarter ended Dec. 31, 2018 | |||||||||||||
Revenue | $ | 19,470 | $ | 20,164 | $ | 20,824 | $ | 20,509 | ||||||||
Net income (loss) from continuing operations | 4,400 | (12,564 | ) | (591 | ) | (386 | ) | |||||||||
Net income (loss) per share – continuing operations | 0.05 | (0.15 | ) | (0.01 | ) | (0.00 | ) | |||||||||
Total assets | 55,165 | 51,583 | 70,049 | 55,947 |
Results of operations for the healthcare services market in which the Company operates show little seasonality from quarter to quarter. The increase in revenues from 2019 to 2020 is primarily due to the Company’s acquisitions during the year ended September 30, 2020.
Related party transactions
On October 1, 2015, the Company entered four market rate, seven-year, operating leases for office, warehouse, and retail space with a rental company affiliated with the Company’s Chief Executive Officer. Later the company entered two additional leases with the Company’s Chief Executive Officer. The leases, for six different locations, have a combined area of approximately 74,520 square feet. Rental payments under this lease agreement are approximately US$52,000 per month, plus taxes, utilities, and maintenance. The lease is recorded as a lease liability. The Company also paid $1,853,000 representing taxes, penalties, and interest as a result of a section 338(h)(10) tax election that was made for one of the past acquisitions. Not all but a large portion of these amount was paid to the Chief Executive Officer to reimburse for the taxes and expense incurred as result of the 338(h)(10) tax election, in accordance with the purchase agreement of the acquisition.
All transactions outstanding are unsecured and non-interest bearing.
Key management personnel also participate in the Company’s share option program (see Note 9). The Company paid or accrued compensation to key management personnel the following:
Year ended September 30, 2020 | Year ended September 30, 2019 | |||||||
Salaries and Benefits | $ | 1,056 | $ | 1,040 | ||||
Stock-based compensation (Note 9) | - | 858 | ||||||
Total | $ | 1,056 | $ | 1,898 |
Salaries and benefits above include bonuses of $1,056,000 and $519,000, respectively, were recorded as reduction of equity through issuance costs and expensed as transaction costs related to issuance of securities.
Off balance sheet arrangements
The Company has no material undisclosed off-balance sheet arrangements that have or are reasonably likely to have, a current or future effect on its results of operations or financial condition.
ACCOUNTING AND DISCLOSURE MATTERS
Financial reporting controls
The Company is not required to certify the design and evaluation of its disclosure controls and procedures and internal controls over financial reporting and has not completed such an evaluation.
There were no substantive changes in the Company’ s disclosure controls and procedures and internal controls over financial reporting during the period ended September 30, 2020 that have materially affected, or are reasonably likely to materially affect, the Company’ s disclosure controls and procedures and internal controls over financial reporting.
Page | 10
|
MANAGEMENT’S DISCUSSION AND ANALYSIS September 30, 2020 and 2019 (Tabular dollar amounts expressed in thousands, except per share amounts) |
Critical accounting estimates
The preparation of financial statements in conformity with IFRS requires management to make estimates and assumptions that affect the reported amounts of assets, liabilities, revenues and expenses and the disclosure of contingent assets and liabilities in the consolidated financial statements. We constantly evaluate these estimates and assumptions.
We base our estimates and assumptions on experience and other factors that are deemed reasonable under the circumstances. This involves varying degrees of judgment and uncertainty, thus the amounts currently reported in the consolidated financial statements could prove to be inaccurate in the future.
We consider the estimates and assumptions described in this section to be an important part in understanding the consolidated financial statements. These estimates and assumptions are subject to change, as they rely heavily on management’ s judgment and are based on factors that are inherently uncertain.
Revenue recognition
Revenue consists of net patient service revenue. Net patient service revenue is recognized at the time services are provided net of contractual adjustments based on an evaluation of expected collections resulting from the analysis of current and past due accounts, past collection experience in relation to amounts billed and other relevant information. Contractual adjustments result from the differences between the rates charged for services and reimbursements by government-sponsored healthcare programs and insurance companies for such services.
Accounts receivable
Accounts receivable are recorded at the time revenue is recognized and are presented on the balance sheet net of an allowance for doubtful accounts. It is possible that our estimates of the allowance for doubtful accounts could change, which could have a material impact on our operations and cash flows.
The Company will write-off receivables when the likelihood for collection is remote, the receivables have been fully reserved, and when the Company believes collection efforts have been fully exhausted and it does not intend to devote additional resources in attempting to collect.
Convertible debentures
In accordance with the substance of the contractual arrangement, convertible debentures are compound financial instruments that are accounted for separately by their components: a financial liability and an equity instrument. The identification of convertible debenture components is based on interpretations of the substance of the contractual arrangement and therefore requires judgment from management. The separation of the components affects the initial recognition of the convertible debenture at issuance and the subsequent recognition of interest on the liability component. The determination of the fair value of the liability is also based on a number of assumptions, including contractual future cash flows, discount factors, and the presence of any derivative financial instruments.
Stock-based compensation
The Company accounts for stock-based compensation, including stock options and warrants, using the fair value method as prescribed by IFRS 2. Under this method, the fair value of stock options and warrants at the date of grant is amortized over the vesting period and the offsetting credit is recorded as an increase in contributed surplus. The Company accounts for forfeitures as they happen. For the fiscal year ended September 30, 2020 and 2019, the Company recorded stock-based compensation expense of $230,000 and $2,063,000, respectively.
The fair value of the vested stock options has been charged to the statement of loss and comprehensive income (loss) and credited to contributed surplus over the proper vesting period. Fair value for the options granted periods ended September 30, 2020 and 2019, used the Black-Scholes option pricing model calculated using the following assumptions:
As of | As of | |||||||
September 30, 2020 | September 30, 2019 | |||||||
Share price at issuance | $ | 0.96 | $0.63-$0.90 | |||||
Risk-free interest rate | 1.63% | 1.26%-2.24% | ||||||
Expected volatility | 83.2% | 84.7%-118.2% | ||||||
Expected life of option | 4 years | 2-10 years | ||||||
Expected dividend yield | Nil | Nil |
Page | 11
|
MANAGEMENT’S DISCUSSION AND ANALYSIS September 30, 2020 and 2019 (Tabular dollar amounts expressed in thousands, except per share amounts) |
Income taxes
The Company is subject to income taxes in numerous jurisdictions. Significant judgment is required in determining the provision for income taxes and the Company’s income tax provisions reflect management’s interpretation of country- specific tax law. There are many transactions and calculations for which the ultimate tax determination is uncertain during the ordinary course of business and may remain uncertain for several years after their occurrence. The Company recognizes assets and liabilities for taxation when it is probable that the relevant taxation authority will require the Company to receive or pay taxes.
Where the outcome of the determination of tax assets and liabilities is different from the amounts that were initially recorded, such differences will impact the current and deferred income taxes provision in the period in which such determination is made. Changes in tax law or changes in the way tax law is interpreted may also impact the Company’s effective tax rate as well as its business and operations.
Deferred income tax assets and liabilities are recognized for the future income tax consequences attributable to temporary differences between the financial statement carrying value of assets and liabilities and their respective income tax bases. Deferred income tax assets or liabilities are measured using enacted or substantively enacted income tax rates expected to apply to taxable income in the years in which those temporary differences are expected to be recovered or settled.
The calculation of current and deferred income taxes requires management to make estimates and assumptions and to exercise a certain amount of judgment concerning the carrying value of assets and liabilities. The current and deferred income tax assets and liabilities are also impacted by expectations about future operating results and the timing of reversal of temporary differences as well as possible audits of tax filings by regulatory agencies. Changes or differences in these estimates or assumptions may result in changes to the current and deferred tax assets and liabilities on the consolidated statements of financial position and a charge to or recovery of income tax expense.
Acquisition accounting
Accounting for business combinations requires the allocation of the Company’s purchase price to the various assets and liabilities of the acquired business at their respective fair values. The Company uses all available information to make these fair value determinations. In some instances, assumptions with respect to the timing and amount of future revenues and expenses associated with an asset or group of assets may be used to determine fair value. Actual timing and amount of net cash flows from revenues and expenses related to that asset over time may differ materially from those initial estimates, and if the timing is delayed significantly or if the net cash flows decline significantly, the asset could become impaired.
Discontinued operations and assets held for distribution
An operation is qualified as discontinued when it represents a separate major line of business and has been sold, or when the criteria for classification as an asset held for distribution have been met.
Discontinued operations are presented on the statement of income (loss) and comprehensive income (loss) for the periods reported, comprising the earnings after tax of discontinued operations until divestiture and the gain or loss after tax on sale or fair value measurement, less costs to sell.
Significant accounting judgments
The following are the critical judgments, apart from those involving estimations, that have been made in the process of applying the Company's accounting policies and that have the most significant effect on the amounts recognized in the consolidated financial statements.
Functional currency
Management has exercised judgment in selecting the functional currency of each of the entities that it consolidates based on the primary economic environment in which the entity operates and in reference to the various indicators including the currency that primarily influences or determines the selling prices of goods and services and the cost of production, including labor, material and other costs and the currency whose competitive forces and regulations mainly determine selling prices. The consolidated financial statements of the Company are presented in Canadian dollars, however the parent company and its subsidiaries’ functional currency is US dollar, which was determined using managements assumption that the primary economic environment from which it will derive its revenues and the expenses incurred to generate those revenues is the US.
Segment reporting
Management has assessed the information that is provided to the chief operating decision maker and how the business is monitored and has exercised judgment in determining that there is only one operating segment.
12
|
MANAGEMENT’S DISCUSSION AND ANALYSIS September 30, 2020 and 2019 (Tabular dollar amounts expressed in thousands, except per share amounts) |
Asset impairment and cash generating units
For purposes of the asset impairment testing, the Company identifies cash generating units as the smallest identifiable groups of assets that generate independent cash inflows. Impairment testing is performed on these groups of assets on an annual basis or when events or circumstances indicate that the cash generating unit may become impaired considering the assessed and projected recoverable values of the cash generating unit.
Valuation of derivative instruments
Management has exercised judgment in the determination of the fair value of the derivative instruments. Estimating fair value for the derivatives requires determining the most appropriate valuation model, which is dependent on the terms and conditions of the instrument. This estimate also requires the judgment in the determination of the most appropriate inputs to the valuation model including the expected life of the option or warrant, volatility and dividend yield and making assumptions about them.
Recognition of leases
Management has exercised judgment in the determination of whether a contract to rent equipment represents a financing lease. Using historical returns and other operational data management has determined that in cases where the Company is the lessor, no rental agreements represent financing leases.
Goodwill impairment
Management has evaluated the recoverable amount of cash generating units and applied judgment in the discount rate and other underlying assumptions used in impairment analysis of goodwill.
Business Acquisitions
Effective August 17, 2020, the Company, through one of its indirect wholly owned subsidiaries, entered into a purchase agreement to acquire 100% of the shares of Health Technology Resources, L.L.C. (“HTR”), an Illinois company, in the same industry as the Company. The purchase price was $7,062,000, of which $6,364,000 was paid in cash at closing, and the balance of $698,000 to be paid after closing. The $698,000 is comprised of (a) a holdback due on the two-year anniversary of the acquisition discounted at $3.86% for a value of $243,000, (b) Payroll Protection Plan funds of $274,000 to be paid on upon forgiveness, and (c) an earnout valued at $181,000. The earnout could be as high as $660,000 and the fair value was based on a Monte Carlo simulation. The Company has determined that the transaction is an acquisition of a business under IFRS 3 and it has been accounted for by applying the acquisition method. The Company expensed $36,000 of legal expenses included in acquisition-related expenses in conjunction with the acquisition.
Effective December 1, 2019, the Company, through one of its indirect wholly owned subsidiaries, entered into a purchase agreement to acquire 100% of the shares of Acadia Medical Supply, Inc., a Maine company. Total consideration was $1,961,000, of which $1,334,000 was paid in cash at closing, and the balance of $627,000 to be paid on the one- and two-year anniversaries of the acquisition discounted at 3.86%. The Company has determined that the transaction is an acquisition of a business under IFRS 3 and it has been accounted for by applying the acquisition method. The Company expensed $29,000 of legal expenses included in operating expenses in conjunction with the acquisition.
Effective October 1, 2019, the Company, through one of its indirect wholly owned subsidiaries, entered into a purchase agreement to acquire 100% of the shares of Cooley Medical Equipment, Inc., a Kentucky company. Total consideration was $3,617,000, of which $3,089,000 was paid in cash at closing, and the balance of $528,000 to be paid on the 18-month anniversary of the acquisition. Of the cash portion of the purchase price, $2,416,000 was paid to the US Department of Justice to pay off a settlement agreement into which Cooley had entered. The Company has determined that the transaction is an acquisition of a business under IFRS 3 and it has been accounted for by applying the acquisition method. The Company expensed $55,000 of legal expenses, included in acquisition-related costs) in conjunction with the acquisition.
On October 31, 2018, the Company, through one of its indirect wholly owned subsidiaries, entered into a purchase agreement to acquire 100% of the shares of Central Oxygen Inc., an Indiana company. Total consideration was $788,000 in cash and stock.
On October 31, 2018, the Company, through one of its indirect wholly owned subsidiaries, entered into a purchase agreement to acquire 100% of the shares of Riverside Medical Inc., a Tennessee company. Total consideration was $132,000 in cash.
Subsequent events
Effective October 23, 2020, the Company, through one of its indirect wholly-owned subsidiaries, entered into a purchase agreement to acquire Sleepwell, LLC, a Georgia company, and its wholly-owned subsidiary, Halsom Home Care, an Ohio company (collectively, “Sleepwell”). The purchase price was approximately $14,800,000, of which approximately $8,800,000 was paid in cash at closing, approximately $3,700,000 was paid in common stock in January 2021, and approximately US$2,300,000 of holdbacks payable in common stock of $1,500,000 on August 31, 2022 and $800,000 in cash, payable upon resolution of post- closing adjustments, if any, and Sleepwell’s PPP loan.
13
|
MANAGEMENT’S DISCUSSION AND ANALYSIS September 30, 2020 and 2019 (Tabular dollar amounts expressed in thousands, except per share amounts) |
The Company is in the process of gathering the information required to allocate the purchase price to the acquired tangible and intangible assets as of the acquisition date.
FINANCIAL INSTRUMENTS AND RISK MANAGEMENT
Financial instrument risk exposure
The Company’ s activities expose it to a variety of financial risks: market risk (including price risk, currency risk and interest rate risk), credit risk and liquidity risk. These risks arise from the normal course of operations and all transactions are undertaken to support the Company’ s ability to continue as a going concern. Risk management is carried out by management under policies approved by the Board of Directors. Management identifies and evaluates the financial risks in co-operation with the Company’s operating units. The Company’ s overall risk management program seeks to minimize potential adverse effects on the Company’s financial performance.
Credit risk
Credit risk is the risk that one party to a financial instrument will fail to discharge an obligation and cause the other party to incur a financial loss. Financial instruments that potentially subject the Company to credit risk are primarily cash and accounts receivable. Each subsidiary places its cash with one major financial institution. At times, the cash in the financial institution is temporarily in excess of the amount insured by the Federal Deposit Insurance Corporation. Substantially all accounts receivable are due under fee-for-service contracts from third party payors, such as insurance companies and government-sponsored healthcare programs, directly from patients or for rebates due from manufacturers. Receivables generally are collected within industry norms for third-party payors and from manufacturers. The Company continuously monitors collections from its clients and maintains an allowance for bad debts based upon any specific payor collection issues that are identified and historical experience.
The Company recorded bad debt expense of $8,668,000 and $5,686,000 for years ended September 30, 2020 and 2019, respectively. As of September 30, 2020, no one customer represented more than 10% of outstanding accounts receivable. The Company does have more than 9% of receivables through Medicare. As this is a Federal program there is very little credit risk associated with these balances.
Currency risk
Currency risk is the risk that the Company will be subject to foreign currency fluctuations in satisfying obligations related to its foreign activities.
The Company realizes approximately 100% of its sales and makes a significant amount of its purchases in US dollars. Consequently, assets and liabilities are exposed to foreign exchange fluctuations.
The Company’s objective in managing its foreign currency risk is to minimize its net exposures to foreign currency cash flows by holding approximately 90% of its cash and cash equivalents in US dollars. The Company monitors and forecasts the values of net foreign currency cash flow and statement of financial position exposures and from time to time could authorize the use of derivative financial instruments such as forward foreign exchange contracts to economically hedge a portion of foreign currency fluctuations.
Based on the above net exposure at fiscal year ended September 30, 2020, depreciation or appreciation of the US dollar against the Canadian dollar would result in an insignificant effect in net loss. The Company has not employed any currency hedging programs during the years ended September 30, 2020 or 2019.
Liquidity risk
Liquidity risk is the risk that the Company will not be able to meet its financial obligations as they become due. The Company’s approach in managing liquidity is to ensure, to the extent possible, that it will have enough liquidity to meet its liabilities when due, under both normal conditions, by continuously monitoring actual and budgeted cash flows.
As of September 30, 2020, the Company faces no material liquidity risk and can meet all its current financial obligations as they become due and payable. The Company has $35,578,000 of liabilities that are due within one year. The Company has $60,402,000 of current assets to meet those obligations.
Page | 14
|
MANAGEMENT’S DISCUSSION AND ANALYSIS September 30, 2020 and 2019 (Tabular dollar amounts expressed in thousands, except per share amounts) |
Interest rate risk
Interest rate risk is the risk that the future cash flows of a financial instrument will fluctuate because of changes in market interest rates. Interest rate risk is limited to potential decreases on the interest rate offered on cash and cash equivalents held with Chartered Canadian and registered US financial institutions. The Company considers this risk to be immaterial. The interest on the convertible notes is not subject to cash flow interest rate risk as these instruments bear interest at fixed rates.
RISK FACTORS
While it is impossible to identify all such risk factors, factors that could cause actual results to differ materially from those estimated by us include:
Market Price of the Company Shares
The Company Shares are listed and posted for trading on the TSX Venture Exchange. Securities of small-cap and healthcare companies have experienced substantial volatility in the past, often based on factors unrelated to the financial performance or prospects of the companies involved. These factors include macroeconomic developments in North America and globally, and market perceptions of the attractiveness of particular industries. The price of the Company Shares is also likely to be significantly affected by short-term changes in cost of goods, or in financial condition or results of operations. Other factors unrelated to the performance of the Company that may have an effect on the price of the Company Shares include the following: the extent of analytical coverage available to investors concerning the business of the Company may be limited if investment banks with research capabilities do not follow the Company securities; lessening in trading volume and general market interest in the Company’s securities may affect an investor’s ability to trade significant numbers of the Company Shares; the size of the Company’s public float may limit the ability of some institutions to invest in the Company’s securities; and a substantial decline in the price of the Company Shares that persists for a significant period of time could cause the Company’s securities, if listed on an exchange, to be delisted from such exchange, further reducing market liquidity.
As a result of any of these factors, the market price of the Company Shares at any given point in time may not accurately reflect the long-term value of the Company. Securities class-action litigation often has been brought against companies following periods of volatility in the market price of their securities. The Company may in the future be the target of similar litigation. Securities litigation could result in substantial costs and damages and divert management’s attention and resources.
Dilution
The Company will require additional funds in respect of the further development of the company through acquisition. If the Company raises funds by issuing additional equity securities, such financing will dilute the equity interests of its shareholders.
Future Sales of Shares by Existing Shareholders
Sales of the Company Shares in the public markets, or the potential for such sales, could decrease the trading price of the Company Shares and could impair The Company’s ability to raise capital through future sales of the Company Shares. The Company may from time to time have previously issued securities at an effective price per share which will be lower than the market price of the Company Shares. Accordingly, certain shareholders of The Company may have an investment profit in the Company Shares that they may seek to liquidate.
Limited History of Operations
The Company has a limited history of operations. There can be no assurance that the business of the Company and/or its subsidiaries will be successful and generate, or maintain, any profit.
Reimbursement Rates May Decline / Competitive Bid
Reimbursement for services to be provided by the Company come primarily from Medicare and private health insurance companies. The reimbursement rates offered are outside the control of the Company. Reimbursement rates for much of the US health care market have been subject to continual reductions as health insurers and governmental entities attempt to control health care costs. The extent and timing of any reduction in reimbursement rates cannot be predicted by the Company.
Specifically, the Centers for Medicare & Medicaid Services (“CMS”) oversees a competitive bidding program covering durable medical equipment (“DME”), the process in which a Medicare supplier provides DME products to Medicare beneficiaries. Pursuant to the CMS, beginning in 2021, a new competitive bidding process known as Round 2021 will be launched by the CMS, covering contracts running from January 1, 2021 to December 31, 2023. It is possible that the Company may not be selected in some or all the Competitive Bidding Area (“CBA”) that is has bid for. It is also possible that the Company may not be selected for some or all of the product categories for which it has bid. Non-selection for CBA and/or product category may result in loss of revenue and referral sources.
Page | 15
|
MANAGEMENT’S DISCUSSION AND ANALYSIS September 30, 2020 and 2019 (Tabular dollar amounts expressed in thousands, except per share amounts) |
Reductions in reimbursement rates can have a material impact on the profitability of the Company’s operations. A reduction in reimbursement may be unrelated to any concurrent decline in the cost of operations, thereby resulting in reduced profitability. The Company’s costs of operations could increase, but the cost increases may not be passed on to customers because reimbursement rates are set without regard to the cost of service.
Dependence Upon Relationships With Key Suppliers
There are few manufacturers of equipment for certain of the Company’s products. This presents risks that suppliers may not be able to provide equipment to satisfy demand. Demand may outstrip supply, leading to equipment shortages. Conversely, incorrect demand forecasting could lead to excess inventory. If the Company fails to achieve certain volume of sales, prices of inventory may increase. The industry is subject to a high level of regulatory scrutiny, and government or manufacturer recalls could adversely affect the Company’s ability to achieve revenue targets. Inadequate supply could impair the Company’s ability to attract new business and could create upward pricing pressure on equipment and supplies, adversely affecting margins for the Company.
Reliance Upon Few Payors
The Company will earn revenues by seeking reimbursement from Medicare and private health insurance companies, with the Medicare program of the US government being the primary entity making payments. If the Medicare program were to slow payments of receivables for any reason, the Company would be adversely impacted. In addition, both governmental and private health insurance companies may seek ways to avoid or delay reimbursement, which could adversely affect cash flow and revenues for the Company.
Government Regulation
Some operations of the Company will require certain licenses and permits from the authorities in the United States. The ability of the Company and its subsidiaries to obtain, sustain, or renew any such licenses and permits on acceptable terms is subject to changes in regulations and policies and to the discretion of the applicable authorities or other governmental agencies. The ability of the Company to collect certain revenues in the future will depend on the Company receiving approval of an independent diagnostic testing facility and entering into an agreement with Medicare. There is no guarantee that the Company will meet these conditions. The Company will be subject to regulation from United States federal and state authorities. Regulatory action could disrupt its ability to provide services. Such regulatory action could come in the form of actions against manufacturers, unrelated to the Company’s conduct, or actions based upon the Company’s operation. Regulatory action could prevent or delay reimbursement for certain services.
There could also be legislative action that could adversely affect the Company’s business model, including, without limitation: a decision by the United States government to become the exclusive provider of health care services at some time in the future; changes in United States federal or state laws, rules, and regulations, including those governing the corporate practice of medicine, and fee splitting; and changes in the United States Anti-Kickback Statute and Stark Law and/or similar state laws, rules, and regulations. Conversely, budgetary problems in the United States could lead to reduced funding, substantial modification or elimination of Medicare programs, which would end reimbursement for many patients. There can be no assurance that new rules and regulations will not be enacted or that existing rules and regulations will not be applied in a manner which could limit or curtail the business of the Company. Amendments to current laws and regulations could have a substantial adverse impact on the Company.
Highly Competitive Market
The Company will participate in a highly competitive market, which may become more competitive as new players enter. Certain competitors will be subsidiaries or divisions of larger, much better capitalized companies. Certain competitors will have vertically integrated manufacturing and services sectors of the market. The Company may have less capital and may encounter greater operational challenges in serving the market. Better capitalized competitors may also be expected to borrow money or raise debt to purchase equipment more easily than the Company.
Foreign Subsidiaries
The Company plans to conduct all its operations through respective United States subsidiaries. Therefore, to the extent of these holdings, the Company (directly and indirectly) will be dependent on the cash flows of these subsidiaries to meet its obligations. The ability of such subsidiaries to make payments to their parent companies may be constrained by the following factors: the level of taxation, particularly corporate profits and withholding taxes, in the jurisdiction in which each subsidiary operates; and the introduction of exchange controls or repatriation restrictions or the availability of hard currency to be repatriated.
16
|
MANAGEMENT’S DISCUSSION AND ANALYSIS September 30, 2020 and 2019 (Tabular dollar amounts expressed in thousands, except per share amounts) |
Attraction and Retention of Key Personnel Including Directors
The Company will have a small management team and the loss of a key individual or inability to attract suitably qualified staff could have a material adverse impact on the business of The Company. The Company may also encounter difficulties in obtaining and maintaining suitably qualified staff. The success of The Company depends on the ability of management to interpret market data correctly and to interpret and respond to economic, market and other conditions to locate and adopt appropriate opportunities. No assurance can be given that individuals with the required skills will continue employment with The Company or that replacement personnel with comparable skills can be found. The Company will be dependent on the services of key executives, including the directors of The Company and a small number of highly skilled and experienced executives and personnel. Due to the relatively small size of The Company, the loss of these persons or The Company’s inability to attract and retain additional highly skilled employees may adversely affect its business and future operations.
Dividends
The Company currently intends to retain future earnings to finance the operation, development and expansion of its business. The Company does not anticipate paying cash dividends on the Company Shares in the foreseeable future. Payment of future cash dividends, if any, will be at the discretion of the Company Board and will depend on the Company’s financial condition, results of operations, contractual restrictions, capital requirements, business prospects and other factors that the Company Board may consider relevant. Accordingly, investors will only see a return on their investment if the value of the Company Shares appreciates.
Discretion in the Use of Available Funds
Management will have broad discretion concerning the use of the available funds of the Company as well as the timing of their expenditures. As a result, shareholders and investors will be relying on the judgment of management of the Company on completion of the Arrangement for the application of the available funds of the Company (see “Available Funds and Principal Purposes” above). Management may use the available funds in ways that an investor may not consider desirable. The results and the effectiveness of the application of the available funds are uncertain. If the available funds are not applied effectively, the Company’s results of operations may suffer.
Potential Conflicts of Interest
Some of the directors and officers of the Company are engaged and will continue to be engaged as directors and officers of other companies in the search for additional business opportunities on behalf of such other corporations, and situations may arise where these directors and officers will be in direct competition with the Company. Some of the directors and officers of the Company are or may become directors or officers of other companies engaged in other business ventures.
Conflicts of interest, if any, which arise may be subject to and be governed by procedures prescribed by the Business Corporations Act (British Columbia) which require a director or officer of a corporation who is a party to or is a director or an officer of or has a material interest in any person who is a party to a material contract or proposed material contract with The Company to disclose his interest and to refrain from voting on any matter in respect of such contract unless otherwise permitted under the Business Corporations Act (British Columbia). Any decision made by any of such directors and officers involving the Company should be made in accordance with their duties and obligations to deal fairly and in good faith with a view to the best interests of the Company and its shareholders.
Insurance and Uninsured Risks
The Company’s business will continue to be subject to several risks and hazards generally, including general liability. Such occurrences could result in damage to property, inventory, facilities, personal injury or death, damage to the properties of the Company, or the properties of others, monetary losses and possible legal liability. The Company may be subject to product liability and medical malpractice claims, which may adversely affect its operations. The Company’s industry is highly regulated, and the Company may be subject to regulatory scrutiny for violations of regulations and laws. The Company could be adversely affected by the time and cost involved with regulatory investigations even if it has operated in compliance with all laws. Investigations could also adversely affect the timely payment of receivables.
Although the Company will maintain insurance to protect against certain risks in such amounts as it considers to be reasonable, its insurance will not cover all the potential risks associated with its operations. The Company may also be unable to maintain insurance to cover these risks at economically feasible premiums. Insurance coverage may not continue to be available or may not be adequate to cover any resulting liability. The Company might also become subject to liability which may not be insured against or which the Company may elect not to insure against because of premium costs or other reasons. Losses from these events may cause the Company to incur significant costs that could have a material adverse effect upon its financial performance and results of operations.
Page | 17
|
MANAGEMENT’S DISCUSSION AND ANALYSIS September 30, 2020 and 2019 (Tabular dollar amounts expressed in thousands, except per share amounts) |
Additional Capital
The development and the business (including acquisitions) of the Company may require additional financing, which may involve high transaction costs, dilution to shareholders, high interest rates or unfavorable terms and conditions. Failure to obtain sufficient financing may result in the delay or indefinite postponement of its business plans. As the Company will likely be unable to obtain traditional debt financing until it has a profitable and longer operating history, the initial primary source of funding available to the Company will consist of equity financing. There can be no assurance that additional capital or other types of financing will be available if needed or that, if available, the terms of such financing will be favorable to the Company.
Loss of Foreign Private Issuer Status
The Company may lose its foreign private issuer status in the future, which could result in significant additional costs and expenses. As a foreign private issuer, as defined in Rule 3b-4 under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), the Company is currently exempt from certain of the provisions of the U.S. federal securities laws. For example, an issuer with total assets in excess of US$10 million and whose outstanding equity securities are held by 2,000 or more persons, or 500 or more persons who are not “accredited investors”, must register such securities as a class under the Exchange Act. However, as a foreign private issuer subject to Canadian continuous disclosure requirements, the Company may claim the exemption from registration under the Exchange Act provided by Rule threeg3-2(b) thereunder, even if these thresholds are exceeded. To be considered a foreign private issuer, The Company must satisfy a United States shareholder test (not more than 50% of the voting securities of a company must be held by residents of the United States) if any of the following disqualifying conditions apply: (i) the majority of the Company’s executive officers or directors are United States citizens or residents; (ii) more than 50 percent of The Company’s assets are located in the United States; or (iii) The Company’s business is administered principally in the United States. Based on information available as at the date hereof, approximately 26.7% of the Company’s outstanding voting securities are anticipated to be directly or indirectly held of record by residents of the United States. If the Company loses its status as a foreign private issuer, these regulations could apply and it could also be required to commence reporting on forms required of U.S. domestic companies, such as Forms 10-K, 10-Q and 8-K. It could also become subject to U.S. proxy rules, and certain holders of its equity securities could become subject to the insider reporting and “short swing” profit rules under Section 16 of the Exchange Act. In addition, any securities issued by the Company if it loses foreign private issuer status would become subject to certain rules and restrictions under the Securities Act of 1933, as amended, even if they are issued or resold outside the United States. Compliance with the additional disclosure, compliance and timing requirements under these securities laws would likely result in increased expenses and would require the Company’s management to devote substantial time and resources to comply with new regulatory requirements.
United States Operations and Exchange Rate Fluctuations
All the Company’s revenue generating operations will occur in the United States. The Company will be subject to a number of risks associated with its operations that may increase liability and costs and require significant management attention. These risks include:
· | compliance with laws of the United States that will apply to the Company’s United States operations, including lawful access, privacy laws and anti-corruption laws; |
· | instability in economic or political conditions, including inflation, recession and political uncertainty; |
· | potential adverse tax consequences; and |
· | litigation in United States courts. |
In addition, the Company will be exposed to foreign exchange risk as a result of substantially all its revenue generating operations taking place in the United States and thus, revenues and expenses being earned and paid in United States dollars while the Company reports its financial statements in Canadian dollars. If the Canadian dollar appreciates relative to the United States dollar, the Company’s Canadian dollar expenses and revenues will decrease when translated from United States dollars for financial reporting purposes. Conversely, if the Canadian dollar depreciates relative to the United States dollar, the Company’s Canadian dollar expenses and revenues will increase when translated from United States dollars for financial reporting purposes. In addition, exchange rate fluctuations may affect the costs that The Company incurs in its operations. The appreciation of non-United States dollar currencies against the United States dollar can increase the cost of operations in United States dollar terms. Foreign exchange rate fluctuations may materially affect the Company’s financial condition and results of operations in future periods.
The Company will continue to translate the assets and liabilities of its United States dollar functional currency subsidiaries into Canadian dollars using exchange rates in effect at the end of each period. Revenue and expenses for these subsidiaries are translated using average exchange rates that approximate those in effect during the period. The Company will continue to maintain cash balances in both United States and Canadian dollars, but management anticipates that it will not purchase any securities or financial instruments to speculate on or hedge against a rise or fall in the value of the United States dollar.
18
|
MANAGEMENT’S DISCUSSION AND ANALYSIS September 30, 2020 and 2019 (Tabular dollar amounts expressed in thousands, except per share amounts) |
COVID-19 Pandemic
On March 11, 2020, the World Health Organization declared the outbreak of a novel strain of coronavirus (“COVID-19”) a global pandemic. In response to the outbreak, governmental authorities in the United States and internationally have introduced various recommendations and measures to try to limit the pandemic, including travel restrictions, border closures, non-essential business closures, quarantines, self-isolations, shelters-in-place, and social distancing. The COVID-19 outbreak and the response of governmental authorities to try to limit it are having a significant impact on the private sector and individuals, including unprecedented business, employment, and economic disruptions.
Although the Company has taken steps to mitigate the impact of COVID-19, the continued presence and spread of COVID-19 nationally and globally could have a material adverse impact on the Company’s business, operations, and financial results and position, including through employee attrition, disruptions to the Company’s supply chains and sales channels, restrictions of operations at our retail stores, changes in the number of Americans with health insurance resulting in a change in demand for the Company’s products, as well as a deterioration of general economic conditions including a possible national or global recession. Due to the speed with which the COVID-19 situation is developing and the uncertainty of its magnitude, outcome, and duration, it is not possible to estimate its impact on the Company’s business, operations, financial results and position or prospects at this time.
The Company continues to monitor the situation and work with its stakeholders (including customers, employees, and suppliers) in order to assess further possible implications to its business, supply chain, and customers, and, where practicable, mitigate adverse consequences and responsibly address this global pandemic.
The actual and threatened spread of COVID-19 globally could adversely affect global economies and financial markets, resulting in a prolonged economic downturn and a decline in the value of the Company’s share price. The extent to which COVID-19 (or any other disease, epidemic, or pandemic) impacts business activity or financial results, and the duration of any such negative impact, will depend on future developments, which are highly uncertain and cannot be predicted, including new information which may emerge concerning COVID-19 and the actions required to contain or treat its impact, among others.
Page | 19
Exhibit 99.81
FORM 52-109FV1
CERTIFICATION OF ANNUAL FILINGS
VENTURE ISSUER BASIC CERTIFICATE
I, Gregory Crawford, Chief Executive Officer of Protech Home Medical Corp., certify the following:
1. Review: I have reviewed the AIF, if any, annual financial statements and annual MD&A, including, for greater certainty, all documents and information that are incorporated by reference in the AIF (together, the “annual filings”) of Protech Home Medical Corp. (the “issuer”) for the financial year ended September 30, 2020.
2. No misrepresentations: Based on my knowledge, having exercised reasonable diligence, the annual filings do not contain any untrue statement of a material fact or omit to state a material fact required to be stated or that is necessary to make a statement not misleading in light of the circumstances under which it was made, for the period covered by the annual filings.
3. Fair presentation: Based on my knowledge, having exercised reasonable diligence, the annual financial statements together with the other financial information included in the annual filings fairly present in all material respects the financial condition, financial performance and cash flows of the issuer, as of the date of and for the periods presented in the annual filings.
Date:
January 29, 2021
|
|
(signed) “Gregory Crawford” | |
Gregory Crawford | |
Chief Executive Officer |
NOTE TO READER
I. controls and other procedures designed to provide reasonable assurance that information required to be disclosed by the issuer in its annual filings, interim filings or other reports filed or submitted under securities legislation is recorded, processed, summarized and reported within the time periods specified in securities legislation; and
II. a process to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with the issuer’s GAAP.
The issuer’s certifying officers are responsible for ensuring that processes are in place to provide them with sufficient knowledge to support the representations they are making in this certificate. Investors should be aware that inherent limitations on the ability of certifying officers of a venture issuer to design and implement on a cost effective basis DC&P and ICFR as defined in NI 52-109 may result in additional risks to the quality, reliability, transparency and timeliness of interim and annual filings and other reports provided under securities legislation.
|
Exhibit 99.82
FORM 52-109FV1
CERTIFICATION OF ANNUAL FILINGS
VENTURE ISSUER BASIC CERTIFICATE
I, Hardik Mehta, Chief Financial Officer of Protech Home Medical Corp., certify the following:
1. Review: I have reviewed the AIF, if any, annual financial statements and annual MD&A, including, for greater certainty, all documents and information that are incorporated by reference in the AIF (together, the “annual filings”) of Protech Home Medical Corp. (the “issuer”) for the financial year ended September 30, 2020.
2. No misrepresentations: Based on my knowledge, having exercised reasonable diligence, the annual filings do not contain any untrue statement of a material fact or omit to state a material fact required to be stated or that is necessary to make a statement not misleading in light of the circumstances under which it was made, for the period covered by the annual filings.
3. Fair presentation: Based on my knowledge, having exercised reasonable diligence, the annual financial statements together with the other financial information included in the annual filings fairly present in all material respects the financial condition, financial performance and cash flows of the issuer, as of the date of and for the periods presented in the annual filings.
Date: January 29 , 2021 | |
(signed) “Hardik Mehta” | |
Hardik Mehta | |
Chief Financial Officer |
NOTE TO READER
I. controls and other procedures designed to provide reasonable assurance that information required to be disclosed by the issuer in its annual filings, interim filings or other reports filed or submitted under securities legislation is recorded, processed, summarized and reported within the time periods specified in securities legislation; and
II. a process to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with the issuer’s GAAP.
The issuer’s certifying officers are responsible for ensuring that processes are in place to provide them with sufficient knowledge to support the representations they are making in this certificate. Investors should be aware that inherent limitations on the ability of certifying officers of a venture issuer to design and implement on a cost effective basis DC&P and ICFR as defined in NI 52-109 may result in additional risks to the quality, reliability, transparency and timeliness of interim and annual filings and other reports provided under securities legislation.
|
Exhibit 99.83
PROTECH HOME MEDICAL TO PRESENT AT THE MICROCAP RODEO WINTER WONDERLAND CONFERENCE
WEBCASTED PRESENTATION TO BE HELD TUESDAY, FEBRUARY 16, 2021 AT 3:30PM (EST)
Cincinnati, Ohio – February 10, 2021 – Protech Home Medical Corp. (the “Company” or “Protech”) (TSXV:PTQ; OTCQX:PTQQF), a U.S. based leader in the home medical equipment industry, focused on end-to-end respiratory care, today announced that it will be presenting at The MicroCap Rodeo Winter Wonderland Conference on February 16, 2021 at 3:30pm (EST). Greg Crawford, CEO of Protech, will be presenting to a live, virtual audience.
Webcasted Presentation
Event: | MicroCap Rodeo Winter Wonderland |
Date: | Tuesday, February 16, 2021 |
Time: | 3:30pm (EST) |
The live webcast of the Company’s presentation will be available by visiting the investors' section of the Company's website at www.protechhomemedical.com. The webcast will also be available for replay on the Company's website following the event.
ABOUT THE MICROCAP RODEO WINTER WONDERLAND CONFERENCE
The MicroCap Rodeo Winter Wonderland Conference is a virtual conference showcasing 35 best ideas from the buy side. Qualified institutional investors recommended each of the 35 companies represented as one of their best ideas.
ABOUT PROTECH HOME MEDICAL
The Company provides in-home monitoring and disease management services including end-to-end respiratory solutions for patients in the United States healthcare market. It seeks to continue to expand its offerings to include the management of several chronic disease states focusing on patients with heart or pulmonary disease, sleep disorders, reduced mobility and other chronic health conditions. The primary business objective of the Company is to create shareholder value by offering a broader range of services to patients in need of in-home monitoring and chronic disease management. The Company’s organic growth strategy is to increase annual revenue per patient by offering multiple services to the same patient, consolidating the patient’s services and making life easier for the patient.
Forward-Looking Statements
Certain statements contained in this press release constitute "forward-looking information" as such term is defined in applicable Canadian securities legislation. The words "may", "would", "could", "should", "potential", "will", "seek", "intend", "plan", "anticipate", "believe", "estimate", "expect" and similar expressions as they relate to the Company, including the Company presenting at the event and posting material on its website, are intended to identify forward-looking information. All statements other than statements of historical fact may be forward-looking information. Such statements reflect the Company's current views and intentions with respect to future events, and current information available to the Company, and are subject to certain risks, uncertainties and assumptions. Many factors could cause the actual results, performance or achievements that may be expressed or implied by such forward-looking information to vary from those described herein should one or more of these risks or uncertainties materialize. Examples of such risk factors include, without limitation: credit; market (including equity, commodity, foreign exchange and interest rate); liquidity; operational (including technology and infrastructure); reputational; insurance; strategic; regulatory; legal; environmental; capital adequacy; the general business and economic conditions in the regions in which the Company operates; the ability of the Company to execute on key priorities, including the successful completion of acquisitions, business retention, and strategic plans and to attract, develop and retain key executives; difficulty integrating newly acquired businesses; the ability to implement business strategies and pursue business opportunities; low profit market segments; disruptions in or attacks (including cyber-attacks) on the Company's information technology, internet, network access or other voice or data communications systems or services; the evolution of various types of fraud or other criminal behavior to which the Company is exposed; the failure of third parties to comply with their obligations to the Company or its affiliates; the impact of new and changes to, or application of, current laws and regulations; decline of reimbursement rates; dependence on few payors; possible new drug discoveries; a novel business model; dependence on key suppliers; granting of permits and licenses in a highly regulated business; the overall difficult litigation environment, including in the U.S.; increased competition; changes in foreign currency rates; increased funding costs and market volatility due to market illiquidity and competition for funding; the availability of funds and resources to pursue operations; critical accounting estimates and changes to accounting standards, policies, and methods used by the Company; the occurrence of natural and unnatural catastrophic events and claims resulting from such events; and risks related to COVID-19 including various recommendations, orders and measures of governmental authorities to try to limit the pandemic, including travel restrictions, border closures, non-essential business closures, quarantines, self-isolations, shelters-in-place and social distancing, disruptions to markets, economic activity, financing, supply chains and sales channels, and a deterioration of general economic conditions including a possible national or global recession; as well as those risk factors discussed or referred to in the Company’s disclosure documents filed with the securities regulatory authorities in certain provinces of Canada and available at www.sedar.com. Should any factor affect the Company in an unexpected manner, or should assumptions underlying the forward-looking information prove incorrect, the actual results or events may differ materially from the results or events predicted. Any such forward-looking information is expressly qualified in its entirety by this cautionary statement. Moreover, the Company does not assume responsibility for the accuracy or completeness of such forward-looking information. The forward-looking information included in this press release is made as of the date of this press release and the Company undertakes no obligation to publicly update or revise any forward-looking information, other than as required by applicable law.
Neither the TSX Venture Exchange nor its Regulation Services Provider (as that term is defined in the policies of the TSX Venture Exchange) accepts responsibility for the adequacy or accuracy of this release.
For further information please visit our website at www.protechhomemedical.com, or contact:
Cole Stevens
VP of Corporate Development
Protech Home Medical Corp.
859-300-6455
cole.stevens@myphm.com
Gregory Crawford
Chief Executive Officer
Protech Home Medical Corp.
859-300-6455
investorinfo@myphm.com
Exhibit 99.84
Protech Home Medical Announces DATE AND TIME
FOR Q1 Fiscal 2021 QUARTERLY CONFERENCE CALL AND AUDIO WEBCAST
company TO REPORT FINANCIAL RESULTS IN U.S. DOLLARS GOING FORWARD
Cincinnati, Ohio – February 22, 2021 – Protech Home Medical Corp. (the “Company”) (TSXV:PTQ; OTCQX:PTQQF), a U.S. based leader in the home medical equipment industry, focused on end-to-end respiratory care, today announced that it will host its Q1 Fiscal 2021 earnings conference call and audio webcast on Tuesday, March 2, 2021 at 10:00 a.m. (EST).
Conference Call Details:
Tuesday, March 2, 2021 at 10:00 a.m. (EST).
Canada/US Toll Free: 1 (800) 319 4610
International: 1 (604) 638 5340
Audio Webcast Details:
The live audio webcast can be found on the investor section of the Company’s website through the following link:
https://protechhomemedical.com/conference_calls
“As we work towards completion of our planned NASDAQ listing, and execute on our comprehensive capital markets strategy for 2021 and beyond, we have decided Q1 Fiscal 2021 is the optimal time to begin reporting our financial results in U.S. dollars. This change will allow our investors to make constant currency comparisons on a go forward basis, thus removing the FX impact from our financial reporting,” said Greg Crawford, Chairman and CEO of Protech. “We are delighted to make this important change to our financial reporting presentation, completing another milestone in our company’s evolution. As a whole we have grown into a significant regional respiratory care provider in the United States and are knocking on the door of becoming a national provider, as we leverage our significant infrastructure and seek to add turn-key respiratory home care operators to our family of companies. We have an exceptional pipeline of potential acquisition targets, which we expect to keep us very busy over the months to come.”
The listing of the Company’s common shares on the NASDAQ Capital Market (“NASDAQ”) remains subject to the approval of the listing application by NASDAQ and the satisfaction of all applicable listing and regulatory requirements, as well as effectiveness of the registration statement with the United States Securities and Exchange Commission (the “SEC”).
ABOUT PROTECH HOME MEDICAL
The Company provides in-home monitoring and disease management services including end-to-end respiratory solutions for patients in the United States healthcare market. It seeks to continue to expand its offerings to include the management of several chronic disease states focusing on patients with heart or pulmonary disease, sleep disorders, reduced mobility and other chronic health conditions. The primary business objective of the Company is to create shareholder value by offering a broader range of services to patients in need of in-home monitoring and chronic disease management. The Company’s organic growth strategy is to increase annual revenue per patient by offering multiple services to the same patient, consolidating the patient’s services and making life easier for the patient.
Forward-Looking Statements
Certain statements contained in this press release constitute "forward-looking information" as such term is defined in applicable Canadian securities legislation. The words "may", "would", "could", "should", "potential", "will", "seek", "intend", "plan", "anticipate", "believe", "estimate", "expect" and similar expressions as they relate to the Company, including: the potential listing of Protech’s common shares on NASDAQ and its plans to file a Registration Statement with the SEC; and Protech expecting to be very busy with acquisitions over the months to come; are intended to identify forward-looking information. All statements other than statements of historical fact may be forward-looking information. Such statements reflect the Company's current views and intentions with respect to future events, and current information available to the Company, and are subject to certain risks, uncertainties and assumptions, including: failure to get the necessary approval to list on Nasdaq; and the Company successfully identified, negotiating and completing additional acquisitions, including accretive acquisitions. Many factors could cause the actual results, performance or achievements that may be expressed or implied by such forward-looking information to vary from those described herein should one or more of these risks or uncertainties materialize. Examples of such risk factors include, without limitation: credit; market (including equity, commodity, foreign exchange and interest rate); liquidity; operational (including technology and infrastructure); reputational; insurance; strategic; regulatory; legal; environmental; capital adequacy; the general business and economic conditions in the regions in which the Company operates; the ability of the Company to execute on key priorities, including the successful completion of acquisitions, business retention, and strategic plans and to attract, develop and retain key executives; difficulty integrating newly acquired businesses; the ability to implement business strategies and pursue business opportunities; low profit market segments; disruptions in or attacks (including cyber-attacks) on the Company's information technology, internet, network access or other voice or data communications systems or services; the evolution of various types of fraud or other criminal behavior to which the Company is exposed; the failure of third parties to comply with their obligations to the Company or its affiliates; the impact of new and changes to, or application of, current laws and regulations; decline of reimbursement rates; dependence on few payors; possible new drug discoveries; a novel business model; dependence on key suppliers; granting of permits and licenses in a highly regulated business; the overall difficult litigation environment, including in the U.S.; increased competition; changes in foreign currency rates; increased funding costs and market volatility due to market illiquidity and competition for funding; the availability of funds and resources to pursue operations; critical accounting estimates and changes to accounting standards, policies, and methods used by the Company; the occurrence of natural and unnatural catastrophic events and claims resulting from such events; and risks related to COVID-19 including various recommendations, orders and measures of governmental authorities to try to limit the pandemic, including travel restrictions, border closures, non-essential business closures, quarantines, self-isolations, shelters-in-place and social distancing, disruptions to markets, economic activity, financing, supply chains and sales channels, and a deterioration of general economic conditions including a possible national or global recession; as well as those risk factors discussed or referred to in the Company’s disclosure documents filed with the securities regulatory authorities in certain provinces of Canada and available at www.sedar.com. Should any factor affect the Company in an unexpected manner, or should assumptions underlying the forward-looking information prove incorrect, the actual results or events may differ materially from the results or events predicted. Any such forward-looking information is expressly qualified in its entirety by this cautionary statement. Moreover, the Company does not assume responsibility for the accuracy or completeness of such forward-looking information. The forward-looking information included in this press release is made as of the date of this press release and the Company undertakes no obligation to publicly update or revise any forward-looking information, other than as required by applicable law.
Neither the TSX Venture Exchange nor its Regulation Services Provider (as that term is defined in the policies of the TSX Venture Exchange) accepts responsibility for the adequacy or accuracy of this release.
For further information please visit our website at www.protechhomemedical.com, or contact:
Cole Stevens
VP of Corporate Development
Protech Home Medical Corp.
859-300-6455
cole.stevens@myphm.com
Gregory Crawford
Chief Executive Officer
Protech Home Medical Corp.
859-300-6455
investorinfo@myphm.com
Exhibit 99.85
PROTECH HOME MEDICAL REPORTS RECORD FIRST QUARTER FISCAL 2021 FINANCIAL RESULTS
POSTS REVENUE GROWTH OF 32% AND ADJUSTED EBITDA GROWTH OF 53%
RECURRING REVENUE GROWS TO 75% OF TOTAL REVENUE
Cincinnati, Ohio – March 2, 2021 – Protech Home Medical Corp. (the “Company”) (TSXV:PTQ; OTCQX:PTQQF), a U.S. based leader in the home medical equipment industry, focused on end-to-end respiratory care, today announced its first quarter fiscal 2021 financial results and operational highlights. These results pertain to the three-month period ended December 31, 2020 and are reported in U.S. Dollars.
Protech will host its Quarterly Earnings Conference Call on Tuesday, March 2, 2021 at 10:00 a.m. (EST). The dial-in number is 1 (800) 319-4610 or 1 (604) 638-5340.
Financial Highlights:
§ | Revenue for Q1 2021 was $22.8 million compared to $17.2 million for Q1 2020, representing a 32% increase in revenue year-over-year. Compared to Q4, 2020, the Company experienced strong organic growth of 5%. |
§ | Average Recurring Revenue for trailing twelve month at the end of Q1 2021 represents 75% of total revenue. |
§ | Adjusted EBITDA for Q1 2021 was $5.1 million (22.5% margin), compared to Adjusted EBITDA for Q1 2020 of $3.3 million (19.4% margin), representing a 53% increase year-over-year. |
§ | Operating Expense for Q1 2021 was 50.7 %, compared to Q1 2020 of 56.2 %, a substantial margin improvement resulting from scaling on our existing platform |
§ | Cash flow from continuing operations was $2.8 million in Q1 2021 compared to $3.6 million in Q1 2020, the variance was primarily due to changes in working capital. |
§ | The Company reported $23.6 million of cash on hand as at December 31, 2020 compared to $6.4 million at December 31, 2019 in addition to having an undrawn credit facility of $20 million as at December 31, 2020. |
Operational Highlights:
§ | Through the Company’s continued use of technology and centralized intake processes, respiratory resupply set-ups and/or deliveries increased to 34,996 for Q1 2021, compared to 13,439 for Q1 2020, an increase of 160%. |
§ | The Company’s customer base increased 33% year over year to 51,836 unique patients served in Q1 2021 from 39,070 unique patients in Q1 2020. |
§ | Compared to 62,999 unique set-ups/deliveries in Q1 2020, the Company completed 76,691 unique set-ups/deliveries in Q1 2021, an increase of 22%. |
§ | The Company continues to experience robust demand for respiratory equipment, such as oxygen concentrators, ventilators, as well as the CPAP resupply and other supplies business. |
Subsequent Events to the three months ended December 31, 2020:
§ | On January 13th the Company announced it has applied to list its common shares on the NASDAQ Capital Market (“NASDAQ”). Subject to meeting all conditions to listings, the Company is targeting completion within the 1st half of 2021. |
o | On February 2nd the Company announced the acquisition of Mayhugh’s Medical Equipment (“MME”), a respiratory care company based in Florida, reporting unaudited trailing 12-month annual revenues of approximately $5.5 million and Adjusted EBITDA of approximately $946,000. MME adds over 10,000 active patients to Protech’s patient population and represents Protech’s 49th location and entrance into its 11th U.S. State. |
Management Commentary:
“The momentum across the business continues to be robust as evidenced by our first quarter financial and operating results, and I am pleased to say that we are seeing similar strong trends into our second quarter,” said CEO and Chairman Greg Crawford. “Over the last few years, we have applied financial resources and operating expertise to build an unparalleled scalable platform which is poised for tremendous growth. We have the ability to leverage this patient centric platform to make sizeable acquisitions in new and existing markets and integrate them with ease. Coupling this with our significant financial resources, we have never been more excited as to what we can accomplish as a company and have our eyes set on transforming into a national provider of respiratory home care in the United States. As seen in our financials, our recurring revenue grew to 75% of total revenue and we anticipate a further uptick with a full quarter of contribution from SleepWell. This strong recurring revenue platform provides us further stability and consistency as it relates to our growth outlook and is a direct result of the infrastructure we have developed. Our path forward is crystal clear, and with an extremely healthy balance sheet our focus for 2021 is to seek larger, more transformative acquisitions. Lastly, I’d like to thank the entire Protech team for their tireless efforts and stakeholders for all of their continued support.”
Chief Financial Officer Hardik Mehta added, “We are extremely pleased to have transitioned to reporting in U.S. dollars, representing an important step forward in our goal to simplify our reporting and capital markets presentation for investors. We are excited to see the sustained margin acceleration and strong recurring revenue growth that we experienced in the first quarter. Our Adjusted EBITDA margin remains strong as we continue to experience tailwinds across the Company. We also expect our results to further improve as our sleep business normalizes and exceeds historical levels as we move through 2021. On the acquisition front, we are looking forward to quickly scaling up in Florida on the heels of closing MME, and have a full pipeline of acquisition targets in current and new markets that we will continue to assess in the coming months.”
The financial statements of the Company for the three months ended December 31, 2020 and 2019 and accompanying Management Discussion & Analysis (MD&A) are available at www.sedar.com.
ABOUT PROTECH HOME MEDICAL CORP.
The Company provides in-home monitoring and disease management services including end-to-end respiratory solutions for patients in the United States healthcare market. It seeks to continue to expand its offerings to include the management of several chronic disease states focusing on patients with heart or pulmonary disease, sleep disorders, reduced mobility and other chronic health conditions. The primary business objective of the Company is to create shareholder value by offering a broader range of services to patients in need of in-home monitoring and chronic disease management. The Company’s organic growth strategy is to increase annual revenue per patient by offering multiple services to the same patient, consolidating the patient’s services and making life easier for the patient.
Forward-Looking Statements
Certain statements contained in this press release constitute "forward-looking information" as such term is defined in applicable Canadian securities legislation. The words "may", "would", "could", "should", "potential", "will", "seek", "intend", "plan", "anticipate", "believe", "estimate", "expect" and similar expressions as they relate to the Company, including: the Company’s acquisition plans; the Company listing on NASDAQ; the Company expecting its results to further improve and exceed historical levels through 2021; are intended to identify forward-looking information. All statements other than statements of historical fact may be forward-looking information. Such statements reflect the Company's current views and intentions with respect to future events, and current information available to the Company, and are subject to certain risks, uncertainties and assumptions, including, without limitation: the Company’s ability to maintain/slightly increase its collections ratios; the Company maintaining its gross margins and maintaining its revenue growth; and the Company maintaining its selling, general and administrative expenses; the Company obtaining all necessary approvals to list on NASDAQ; and the Company successfully identified, negotiating and completing additional acquisitions. Many factors could cause the actual results, performance or achievements that may be expressed or implied by such forward-looking information to vary from those described herein should one or more of these risks or uncertainties materialize. Examples of such risk factors include, without limitation: credit; market (including equity, commodity, foreign exchange and interest rate); liquidity; operational (including technology and infrastructure); reputational; insurance; strategic; regulatory; legal; environmental; capital adequacy; the general business and economic conditions in the regions in which the Company operates; the ability of the Company to execute on key priorities, including the successful completion of acquisitions, business retention, and strategic plans and to attract, develop and retain key executives; difficulty integrating newly acquired businesses; the ability to implement business strategies and pursue business opportunities; low profit market segments; disruptions in or attacks (including cyber-attacks) on the Company's information technology, internet, network access or other voice or data communications systems or services; the evolution of various types of fraud or other criminal behavior to which the Company is exposed; the failure of third parties to comply with their obligations to the Company or its affiliates; the impact of new and changes to, or application of, current laws and regulations; decline of reimbursement rates; dependence on few payors; possible new drug discoveries; a novel business model; dependence on key suppliers; granting of permits and licenses in a highly regulated business; the overall difficult litigation environment, including in the U.S.; increased competition; changes in foreign currency rates; increased funding costs and market volatility due to market illiquidity and competition for funding; the availability of funds and resources to pursue operations; critical accounting estimates and changes to accounting standards, policies, and methods used by the Company; and the occurrence of natural and unnatural catastrophic events and claims resulting from such events; as well as those risk factors discussed or referred to in the Company’s disclosure documents filed with the securities regulatory authorities in certain provinces of Canada and available at www.sedar.com. Should any factor affect the Company in an unexpected manner, or should assumptions underlying the forward-looking information prove incorrect, the actual results or events may differ materially from the results or events predicted. Any such forward-looking information is expressly qualified in its entirety by this cautionary statement. Moreover, the Company does not assume responsibility for the accuracy or completeness of such forward-looking information. The forward-looking information included in this press release is made as of the date of this press release and the Company undertakes no obligation to publicly update or revise any forward-looking information, other than as required by applicable law.
Non-GAAP Measures
This press release refers to “Adjusted EBITDA” which is a non-GAAP and non-IFRS financial measure that does not have a standardized meaning prescribed by GAAP or IFRS. The Company’s presentation of this financial measure may not be comparable to similarly titled measures used by other companies. This financial measure is intended to provide additional information to investors concerning the Company’s performance. Adjusted EBITDA is defined as EBITDA excluding stock-based compensation. Adjusted EBITDA is a Non-IFRS measure the Company uses as an indicator of financial health and excludes several items which may be useful in the consideration of the financial condition of the Company, including interest expense, income taxes, depreciation, amortization, stock-based compensation, goodwill impairment and change in fair value of debentures and financial derivatives. The following table shows our Non-IFRS measure (Adjusted EBITDA) reconciled to our net income for the indicated periods:
Three
Months Ended
Dec 31, 2020 |
Three
Months Ended
Dec 31, 2019 |
|||||||
Net income (loss) from continuing operations | $ | 229 | $ | (1,328 | ) | |||
Add back: | ||||||||
Depreciation and amortization | 3,304 | 3,629 | ||||||
Interest expense (net of interest income) | 487 | 457 | ||||||
Change in fair value of financial derivative liabilities | 1,091 | 553 | ||||||
EBITDA | $ | 5,111 | $ | 3,311 | ||||
Stock-based compensation | 15 | 32 | ||||||
Adjusted EBITDA | $ | 5,126 | $ | 3,343 | ||||
% of Net Revenue | 22.5 | % | 19.4 | % |
Management uses this non-IFRS measure as a key metric in the evaluation of the Company’s performance and the consolidated financial results. The Company believes this non-IFRS measure is useful to investors in their assessment of the operating performance and the valuation of the Company. In addition, this non-IFRS measure addresses questions the Company routinely receives from analysts and investors and, in order to assure that all investors have access to similar data, the Company has determined that it is appropriate to make this data available to all investors. However, non-IFRS financial measures are not prepared in accordance with IFRS, and the information is not necessarily comparable to other companies and should be considered as a supplement to, not a substitute for, or superior to, the corresponding measures calculated in accordance with IFRS.
The listing of the Company’s common shares on the NASDAQ remains subject to the approval of the listing application by NASDAQ and the satisfaction of all applicable listing and regulatory requirements, as well as effectiveness of the registration statement with the United States Securities and Exchange Commission.
Neither the TSX Venture Exchange nor its Regulation Services Provider (as that term is defined in the policies of the TSX Venture Exchange) accepts responsibility for the adequacy or accuracy of this release.
For further information please visit our website at www.protechhomemedical.com, or contact:
Cole Stevens
VP of Corporate Development
Protech Home Medical Corp.
859-300-6455
cole.stevens@myphm.com
Gregory Crawford
Chief Executive Officer
Protech Home Medical Corp.
859-300-6455
investorinfo@myphm.com
Exhibit 99.86
1st Quarter 2021 | |
Management’s Discussion and Analysis For the Three Months Ended December 31, 2020 |
Protech Home Medical Corp.
|
|
MANAGEMENT’S DISCUSSION AND ANALYSIS December 31, 2020 and 2019 (Tabular dollar amounts expressed in thousands, except per share amounts) |
|
The following Management’s Discussion and Analysis (“MD&A”) of the financial condition and results of operations of Protech Home Medical Corp., formerly Patient Home Monitoring Corp., and its subsidiaries (“Protech” or the “Company”), prepared as of March 1, 2021 and should be read in conjunction with the consolidated financial statements for the three months ended December 31, 2020, including the notes therein. The consolidated financial statements have been prepared in accordance with International Financial Reporting Standards (“IFRS”). Unless otherwise specified, all financial data is presented in US dollars. The words “we”, “our”, “us”, “Company”, and “Protech” refer to Protech Home Medical Corp. and/or the management and employees of the Company.
Additional information relevant to the Company is available for review on SEDAR at www.sedar.com.
Table of Contents
Page 1 | Caution Regarding Forward-Looking Statements |
Page 2 | Selected Annual Information |
Page 3 | About Our Business and Operating Results |
Page 5 | Financial Position |
Page 8 | Accounting and Disclosure Matters |
Page 10 | Financial Instruments and Risk Management |
Page 11 | Risk Factors |
CAUTION REGARDING FORWARD-LOOKING STATEMENTS
Information included or incorporated by reference in this report may contain forward-looking statements. This information may involve known and unknown risks, uncertainties, and other factors which may cause our actual results, performance, or achievements to be materially different from the future results, performance, or achievements expressed or implied by any forward-looking statements. Forward-looking statements, which involve assumptions and describe our future, strategies, and expectations, are generally identifiable by use of the words “may,” “will,” “should,” “expect,” “anticipate,” “estimate,” “believe,” “plan,” “intend” or “project” or the negative of these words or other variations on these words or comparable terminology. Readers are cautioned regarding statements discussing profitability; growth strategies; anticipated trends in our industry; our future financing plans; and our anticipated needs for working capital. Actual events or results may differ materially from those discussed in forward-looking statements. There can be no assurance that the forward-looking statements contained in this report will in fact occur. The Company bases its forward-looking statements on information currently available to it and assumes no obligation to update them.
THE FORWARD-LOOKING INFORMATION CONTAINED IN THIS MD&A PRESENTS THE EXPECTATIONS OF THE COMPANY AS OF THE DATE OF THIS MD&A AND, ACCORDINGLY, IS SUBJECT TO CHANGE AFTER SUCH DATE. READERS SHOULD NOT PLACE UNDUE IMPORTANCE ON FORWARD-LOOKING INFORMATION AND SHOULD NOT RELY UPON THIS INFORMATION AS OF ANY OTHER DATE. WHILE THE COMPANY MAY ELECT TO, THE COMPANY DOES NOT UNDERTAKE TO UPDATE THIS INFORMATION AT ANY PARTICULAR TIME EXCEPT AS REQUIRED BY APPLICABLE SECURITIES LEGISLATION
Page | 1
|
MANAGEMENT’S DISCUSSION AND ANALYSIS December 31, 2020 and 2019 (Tabular dollar amounts expressed in thousands, except per share amounts) |
|
FIRST QUARTER 2021 HIGHLIGHTS
- Increased revenues for the three months ended December 31, 2020 to $22.8 million, or 32%, from the prior year period
- Completed an acquisition during the three months ended December 31, 2020 and a second subsequent to quarter end
- | Increased the number of equipment set-ups to 76,691 for the three months ended December 31, 2020 from 62,999 in the prior year period, an increase of 22% |
- | Increased the number of respiratory resupply set-ups to 34,996 for the three months ended December 31, 2020 from 13,439 in the prior year period, an increase of 160% |
- Generated Adjusted EBITDA of $5.1 million, a 53% increase from the prior year.
SELECTED QUARTERLY INFORMATION
As of or for the three months ended | ||||||||
December 31, 2020 | December 31, 2019 | |||||||
Unique patients | 51,836 | 39,070 | ||||||
Number of equipment set-ups or deliveries | 76,691 | 62,999 | ||||||
Respiratory resupply set-ups or deliveries | 34,996 | 13,439 | ||||||
Revenue | $ | 22,755 | $ | 17,251 | ||||
Inventory sold | $ | 6,071 | $ | 4,379 | ||||
Adjusted EBITDA (1) | $ | 5,126 | $ | 3,343 | ||||
Adjusted EBITDA % | 22.5 | % | 19.4 | % | ||||
Cash | $ | 23,593 | $ | 6,336 |
(1) | Refer to page three for definition of Adjusted earnings before interest, taxes, depreciation, and amortization (“EBITDA”) |
The words “we”, “our”, “us”, “Company”, and “Protech” refer to Protech Home Medical Corp. and/or the management and employees of the Company.
Change in Presentation Currency
Effective October 1, 2020, the Company changed its presentation currency to US dollars from Canadian dollars. Since the Company operates in the United States and its functional currency is US dollars, the Company believes that the change in presentation currency will provide stakeholders with a better reflection of the Company's business activities and enhance the comparability of the Company's financial information. The change in presentation currency represents a voluntary change in accounting policy, which is accounted for retrospectively. The consolidated financial statements for all periods presented have been translated into the new presentation currency in accordance with IAS 21 - The Effects of Changes in Foreign Exchange Rates.
The consolidated statements of operations and comprehensive income (loss) and the consolidated statements of cash flows have been translated into the presentation currency using the average exchange rates prevailing during each reporting period. In the consolidated statements of financial position, all assets and liabilities have been translated using the period-end exchange rates, and all resulting exchange differences have been recognized in accumulated other comprehensive loss. Asset and liability amounts previously reported in Canadian dollars have been translated into US dollars as at October 1, 2019 and September 30, 2020, using the period end exchange rates of 1.3242 C$/US$ and 1.3339 C$/US$, respectively. The statements of income (loss) and comprehensive income (loss) and statement of cash flows have been translated at an exchange rate of 1.3199 C$/US$ three months ended December 31, 2019.
Page | 2
|
MANAGEMENT’S DISCUSSION AND ANALYSIS December 31, 2020 and 2019 (Tabular dollar amounts expressed in thousands, except per share amounts) |
|
ABOUT OUR BUSINESS
Protech business objective
The explosive growth in the number of elderly patients in the US healthcare market is creating pressure to provide more efficient delivery systems. Healthcare providers, such as hospitals, physicians, and pharmacies, are seeking partners that can offer a range of products and services that improve outcomes, reduce hospital readmissions, and help control costs. Protech fills this need by delivering a growing number of specialized products and services to achieve these goals. Protech seeks to provide an ever-expanding line of products and services over larger geographic regions within the United States using several growth strategies.
Future Outlook
Protech expects to generate net profit and positive adjusted EBITDA, excluding IFRS treatment of non-cash items. Our top priority continues to be the generation of operational net profit, positive cash flow, and growth in EBITDA in fiscal year 2021 and beyond. As we continue to expand in our existing markets, we plan to leverage our business platforms to enter new markets. As we continue to grow and achieve scale, the increasing cash generated from operations will be used to market our service and to gain market share. Our continued integration and rationalization, as well as our acquisitions, have given us a focus and path towards profitability at each business unit.
Going forward, we seek to find ways to continue to grow our customer base and penetrate these markets, while continuing to streamline our operational platform and generate positive cash flow and operational profits. We will continue to improve on operational efficiencies and call center management as they are key execution points in order to maintain our healthy gross margin while growing revenues via the cross selling of services to existing and acquired patients.
OPERATING RESULTS
Accounting policies and estimates
The consolidated financial statements for the quarter ended December 31, 2020 are prepared under International Financial Reporting Standards (“IFRS”) issued by the governing body of the International Accounting Standards Board (“IASB”). The preparation of consolidated financial statements in conformity with IFRS requires management to make estimates and assumptions. These estimates and assumptions affect the reported amounts of assets and liabilities, disclosures of contingent assets and liabilities, and the reported amounts of revenues and expenses for the period of consolidated financial statements.
IFRS accounting treatment
Management does not rely upon non-cash IFRS accounting treatment of certain items such as impairment of goodwill and intangible assets, changes in the fair value of financial derivatives, stock-based compensation and amortization of intangible assets when planning, monitoring, and evaluating the Company’ s performance or in making financial decisions.
Non-IFRS measures
Throughout this MD&A, references are made to several measures which are believed to be meaningful in the assessment of the Company’ s performance. These metrics are non-standard measures under IFRS and may not be identical to similarly to it led measures reported by other companies. Also, in the future, we may disclose different non- IFRS financial measures in order to help our investors more meaningfully evaluate and compare our future results of operations to our previously reported results of operations. Readers are cautioned that the disclosure of these items is meant to add to, and not replace, the discussion of financial results as determined in accordance with IFRS. The primary purpose of these non-IFRS measures is to provide supplemental information that may prove useful to investors who wish to consider the impact of certain non-cash or uncontrollable items on the Company’s operating performance.
EBITDA and Adjusted EBITDA
In calculating EBITDA and adjusted EBITDA, certain items (mostly non-cash) are excluded from net income (loss), including interest, income taxes, depreciation, amortization, change in fair value of derivative financial liabilities, and stock-based compensation. Set forth below are descriptions of the financial items that have been excluded from net income or loss to calculate EBITDA and Adjusted EBITDA and the material limitations associated with using these non-IFRS financial measures as compared to net income or loss.
- | Depreciation and amortization expense may be useful for investors to consider because they generally represent the wear and tear on our property and equipment used in our operations and amortization of intangibles valued in acquisitions. However, we do not believe these charges necessarily reflect the current and ongoing cash charges related to our operating costs. |
Page | 3
|
MANAGEMENT’S DISCUSSION AND ANALYSIS December 31, 2020 and 2019 (Tabular dollar amounts expressed in thousands, except per share amounts) |
|
- | The amount of interest expense we incur or interest income we generate may be useful for investors to consider and may result in current cash inflows or outflows. However, we do not consider the amount of interest expense to be a representative component of the day-to-day operating performance of our business. |
- | The change in fair value of derivative financial liabilities is the change in value of the debenture, warrants, and purchase price payable in common shares, and these changes are non-cash. |
- | Income tax expense may be useful for investors to consider because it generally represents the taxes which may be payable for the period and the change in deferred income taxes and may reduce the amount of funds otherwise available for use. However, we do not consider the amount of income tax expense to be a representative component of the day-to-day operating performance of our business. |
- | Stock-based compensation may be useful for investors to consider because it is an estimate of the non-cash component of compensation received by the Company’s directors, officers, employees, and consultants. However, stock-based compensation is being excluded from the Company’s operating expenses because the decisions which gave rise to these expenses were not made to increase revenue in a particular period but were made for the Company’s long-term benefit over multiple periods. While strategic decisions, such as those to issue stock-based awards are made to further the Company’s long-term strategic objectives and impact the Company’s earnings under IFRS, these items affect multiple periods and management is not able to change or affect these items within any period. |
Management uses both IFRS and non-IFRS measures when planning, monitoring, and evaluating the Company’s performance.
The following table of adjusted EBITDA shows the Company’s IFRS measures reconciled to EBITDA (non-IFRS measure) for the indicated periods. The table of net income (loss) is also measured based on IFRS. The tables are shown net of discontinued operations.
Three months
ended December 30, 2020 |
Three months
ended December 31, 2019 |
|||||||
Net income (loss) from continuing operations | $ | 229 | $ | (1,328 | ) | |||
Add back: | ||||||||
Depreciation and amortization | 3,304 | 3,629 | ||||||
Interest expense, net | 487 | 457 | ||||||
Change in fair values of derivative financial liabilities | 1,091 | 553 | ||||||
EBITDA | $ | 5,111 | $ | 3,311 | ||||
Stock-based compensation | 15 | 32 | ||||||
Adjusted EBITDA | $ | 5,126 | $ | 3,343 |
Three months
ended December 31, 2020 |
Three
months
ended December 31, 2019 |
|||||||
Revenue | $ | 22,755 | $ | 17,251 | ||||
Inventory sold | 6,071 | 4,379 | ||||||
Operating expenses | 11,529 | 9,696 | ||||||
Depreciation | 3,095 | 3,448 | ||||||
Amortization of intangible assets | 209 | 181 | ||||||
Stock-based compensation | 15 | 32 | ||||||
Acquisition-related costs | 56 | - | ||||||
Gain on disposal of property and equipment | (27 | ) | (60 | ) | ||||
Other expense (income) | - | (107 | ) | |||||
Interest expense, net | 487 | 457 | ||||||
Change in fair values of derivative financial liabilities | 1,091 | 553 | ||||||
Net income (loss) | $ | 229 | $ | (1,328 | ) | |||
(Loss) income per share | ||||||||
Basic earnings per share | $ | 0.00 | $ | (0.02 | ) | |||
Diluted earnings per share | $ | 0.00 | $ | (0.02 | ) |
Page | 4
|
MANAGEMENT’S DISCUSSION AND ANALYSIS December 31, 2020 and 2019 (Tabular dollar amounts expressed in thousands, except per share amounts) |
|
Revenue
For the three months ended December 31, 2020, revenue totaled $22,755,000 an increase of $5,504,000 or 32%, compared to $17,251,000 for the three months ended December 31, 2019. The increase in revenues is primarily due to the acquisitions during the period December 1, 2019 through December 31, 2020 and 11% organic growth.
Inventory sold
For the three months ended December 31, 2020, inventory sold totaled $6,071,000 versus $4,379,000 for the three months ended December 31, 2019. The increase was primarily due to and commensurate with the growth in revenues.
Operating expenses
For the three months ended December 31, 2020, operating expenses were $11,529,000, an increase of $1,833,000 from $9,696,000 for the three months ended December 31, 2019. The increase was primarily due to the acquisitions during the period December 1, 2019 through December 31, 2020.
Depreciation expense
Depreciation expense decreased by $353,000 to $3,095,000 for the three months ended December 31, 2020. This was primarily due to the decline in gross rental equipment, as the Company gets more efficient in the deployment of its assets.
Interest expense
Total interest expense for the three months ended December 31, 2020 increased slightly to $487,000 in the three months ended December 31, 2020 from $457,000 for the three months ended December 31, 2019.
Change in fair value of derivative financial liabilities
The Company has three financial liabilities that are recorded at fair value through profit or loss. The debenture issued during 2019 is valued at fair value using the current trading price. The change in fair value for the debenture was a loss of $635,000 for the three months ended December 31, 2020 as compared to $553,000 for the three months ended December 31, 2019. Warrants issued with the June 2020 bought deal are valued using the Black-Scholes pricing model, which resulted in a loss of $348,000 for the three months ended December 31, 2020. The Company’s acquisition in October 2020, had a portion of the purchase price payable in shares at a later date. The acquisition consideration was recorded at the closing price on the date of the acquisition and was recorded as a liability. Prior to the issuance of the shares, the Company recorded the liability at the closing price at period end, which resulted in a loss of $108,000 for the three months ended December 31, 2020.
FINANCIAL POSITION
As at |
As at |
|||||||
December
31,
2020 |
September
30,
2020 |
|||||||
Cash | $ | 23,593 | $ | 29,227 | ||||
Accounts receivable, inventory and prepaid assets | 17,660 | 16,056 | ||||||
Property and equipment | 17,988 | 16,667 | ||||||
Other assets | 19,321 | 10,115 | ||||||
Total assets | $ | 78,562 | $ | 72,065 | ||||
Accounts payable and other current liabilities | $ | 29,525 | $ | 24,385 | ||||
Long term debt and other long-term liabilities | 20,059 | 19,445 | ||||||
Total Liabilities | 49,584 | 43,830 | ||||||
Shareholders’ equity | 28,978 | 28,235 | ||||||
Total liabilities and shareholders’ equity | $ | 78,562 | $ | 72,085 |
Liquidity
Management considers liquid assets to consist of cash and its line of credit availability. As of December 31, 2020, the Company had cash on hand of $23,593,000 and line of credit availability of $13,770,000. The Company’s approach in managing liquidity is to ensure, to the extent possible, that it will have enough liquidity to meet its liabilities when due by continuously monitoring actual and budgeted cash flows and monitoring financial market conditions for signs of weakness.
As of December 31, 2020, the Company faces no material liquidity risk and can meet all its current financial obligations as they become due and payable. The Company has $29,525,000 liabilities that are due within one year but has $41,253,000 of current assets to meet those obligations.
Page | 5
|
MANAGEMENT’S DISCUSSION AND ANALYSIS December 31, 2020 and 2019 (Tabular dollar amounts expressed in thousands, except per share amounts) |
|
Capital management
The Company considers its capital to be shareholders’ equity, which is comprised of share capital, contributed surplus, and accumulated other comprehensive income and deficit, which totaled $28,978,000 at December 31, 2020, along with long-term debt, which totaled $20,059,000 at December 31, 2020.
The Company raises capital, as necessary, to meet its needs and take advantage of perceived opportunities and, therefore, does not have a numeric target for its capital structure. Funds are primarily secured through equity capital, convertible debentures raised by way of private placements, and debt instruments.
On June 29, 2020, the Company completed a bought deal public offering, a concurrent brokered private placement, and a non-brokered private placement to the Company’s Chief Executive Officer and a director of the Company, for a total of 27,678,826 units. Each unit issued was issued at a price of $1.15 for total gross proceeds of $31,831,000 and consisted of one common share and one-half of one common share purchase warrant (each whole warrant, a “Warrant”). The fair value of the Warrants is recorded as a liability and valued using the Black-Scholes pricing model. Upon exercise, the warrant liability will be derecognized and transferred to equity.
Management reviews its capital management approach on an ongoing basis and believes that this approach, given the relative size of the Company, is reasonable.
The Company invests all capital that is surplus to its immediate operational needs in short-term, liquid, and highly rated financial instruments, such as cash and short-term guarantee deposits, held with major Canadian and US financial institutions.
The Company had the following equity instruments outstanding at December 31, 2020 and September 30, 2020:
As
at
December 31, 2020 (000’s) |
As
at
September 30, 2020 (000’s) |
|||||||
Common shares | 112,866 | 112,277 | ||||||
Warrants | 13,724 | 13,839 | ||||||
Options | 10,534 | 10,506 | ||||||
Compensation options | 104 | 519 |
Financing
Historically and currently, the Company has financed its operations primarily from cash flow from operations, equipment loans, debentures, leases, equity financing, and through the issuance of shares to acquire businesses.
Debentures
On March 7, 2019, the Company issued $15,000,000 in 8.0% Convertible Unsecured Debentures due March 7, 2024. The debentures are convertible into common shares at $1.30/share. After three years, the Company can force conversion of the outstanding principal if the daily volume weighted average price of the common shares exceeds $1.62/share for twenty consecutive trading days. In connection with the new debt issued, the Company issued broker warrants to purchase 519,231 common shares. Each warrant entitles the holder to purchase one common share of the Company at a price of $1.30 until March 7, 2024.
Equipment Loans
The Company is offered financing arrangements from their suppliers and their suppliers designated financial institution, in which payments for certain invoices or products can be financed and paid over an extended period. The financial institution pays the supplier when the original invoice becomes due, and the Company pays the third-party financial institution over a period of time. In some cases, the supplier accepts a discounted amount from the financial institution and the Company repays the financial institution the face amount of the invoice with no stated interest, in twelve equal monthly installments. The Company uses a 6% incremental borrowing rate to impute interest on these arrangements. In other cases, the supplier receives the full invoice price and Company pays a stated interest rate to the financial institution, ranging from 5.6% to 8.0%, with the terms of the financing ranging from 12 to 48 months. Future payments on these liabilities are as follows:
Less than one year | $ | 4,290 | ||
Between 1 and 5 years | 282 | |||
Total | $ | 4,572 |
Page | 6
|
MANAGEMENT’S DISCUSSION AND ANALYSIS December 31, 2020 and 2019 (Tabular dollar amounts expressed in thousands, except per share amounts) |
|
Lease Liabilities
The Company enters in lease for real estate and vehicles. Real estate leases are valued at the net present value of the future lease payments at an 8% incremental borrowing rate. Vehicle leases are recorded at rate implicit in the lease based on the current value and the estimated residual value of the vehicle, equating to rates ranging from 1.7% to 10.4%. Future payments on these liabilities are as follows:
Less than 1 year | $ | 2,491 | ||
Between 1 and 5 years
More than five years |
4,332 - |
|||
Total | 6,823 | |||
Less: finance charges | (804 | ) | ||
Lease liabilities | 6,019 | |||
Current portion of lease liabilities | (2,333 | ) | ||
Long-term portion of lease liabilities | $ | 3,686 |
Revolving Credit Facility
In September 2020, the Company entered a $20,000,000 asset-based revolving credit facility with a US bank. The facility matures in September 2024 and bears interest at floating rate of LIBOR plus 2.0% to 2.5%, with a LIBOR floor of 0.5% and has an unused fee of 0.3%. The facility is subject to a borrowing base based on a percentage of eligible accounts receivable and customer rental contracts, which totaled $13,770,000 as of December 31, 2020.
Contingencies
The Company has been in litigation with Lightwater Long Short Fund (“Lightwater”) for the years ended September 30, 2020 and 2019. The litigation is due to Lightwater claiming damages for matters related to subscription agreements in a prior private placement. Management and legal believe that this lawsuit is without merit and is unpredictable. It is uncertain currently to determine the outcome of this lawsuit or our potential liability, if any.
A second matter has reached a settlement in principle during the year ended September 30, 2020 of $475,000, but has not been formally finalized, and is recorded in accrued liabilities on the balance sheet.
From time to time, the Company is involved in various legal proceedings arising from the ordinary course of business. None of the matters in which the Company is currently involved, either individually or in the aggregate, is expected to have a material adverse effect on the Company’s consolidated financial position, results of operations, or cash flows.
Quarterly operating results from continuing operations
Quarter ended Dec. 31, 2020 | Quarter ended Sep. 30, 2020 | Quarter ended Jun. 30,2020 | Quarter ended Mar. 31, 2020 | |||||||||||||
Revenue | $ | 22,755 | $ | 18,822 | $ | 18,624 | $ | 17,942 | ||||||||
Net income (loss) from continuing operations | 229 | (1,963 | ) | (2,646 | ) | 1,158 | ||||||||||
Net income (loss) per share – continuing operations | 0.00 | (0.02 | ) | (0.03 | ) | 0.01 | ||||||||||
Total assets | $ | 78,562 | $ | 72,066 | $ | 71,302 | $ | 45,641 |
Quarter ended Dec. 31, 2019 | Quarter ended Sep. 30, 2019 | Quarter ended Jun. 30,2019 | Quarter ended Mar. 31, 2019 | |||||||||||||
Revenue | $ | 17,250 | $ | 14,701 | $ | 15,073 | $ | 15,671 | ||||||||
Net income (loss) from continuing operations | (1,328 | ) | 3,322 | (9,392 | ) | (445 | ) | |||||||||
Net income (loss) per share – continuing operations | (0.02 | ) | 0.04 | (0.11 | ) | (0.01 | ) | |||||||||
Total assets | $ | 49,105 | $ | 41,628 | $ | 38,674 | $ | 52,475 |
Results of operations for the healthcare services market in which the Company operates show little seasonality from quarter to quarter. The increase in revenues from the past year is primarily due to the Company’s acquisitions during the year ended September 30, 2020 and the three months ended December 31, 2020.
Related party transactions
The Company has six market rate leases for office, warehouse, and retail space with a rental Company affiliated with the Company’s Chief Executive Officer, the majority of which were entered into in 2015. The leases have a combined area of 74,520 square feet. Lease payments under these leases are approximately $68,000 per month, plus taxes, utilities, and maintenance.
Page | 7
|
MANAGEMENT’S DISCUSSION AND ANALYSIS December 31, 2020 and 2019 (Tabular dollar amounts expressed in thousands, except per share amounts) |
|
Expense for Board of Directors’ fees was $45,000 and $43,000 or the three months ended December 31, 2020 and 2019, respectively. Stock based compensation for the Board of Directors’ was $4,239 for the three months ended December 31, 2020.
Key management personnel also participate in the Company’s share option program (see Note 8). The Company paid or accrued compensation to key management personnel the following:
Three
months ended
December 31, 2020 |
Three
months ended
December 31, 2019 |
|||||||
Salaries and Benefits | $ | 227 | $ | 196 | ||||
Stock-based compensation (Note 9) | - | - | ||||||
Total | $ | 227 | $ | 196 |
Off balance sheet arrangements
The Company has no material undisclosed off-balance sheet arrangements that have or are reasonably likely to have, a current or future effect on its results of operations or financial condition.
ACCOUNTING AND DISCLOSURE MATTERS
Financial reporting controls
The Company is not required to certify the design and evaluation of its disclosure controls and procedures and internal controls over financial reporting and has not completed such an evaluation.
There were no substantive changes in the Company’ s disclosure controls and procedures and internal controls over financial reporting during the period ended December 31, 2020 that have materially affected, or are reasonably likely to materially affect, the Company’ s disclosure controls and procedures and internal controls over financial reporting.
Critical accounting estimates
The preparation of financial statements in conformity with IFRS requires management to make certain estimates, judgments, and assumptions concerning the future. The Company’s management reviews these estimates, judgments, and assumptions on an ongoing basis, based on experience and other factors, including expectations of future events that are believed to be reasonable under the circumstances. Revisions to estimates are adjusted prospectively in the period in which the estimates are revised.
Estimates where management has made subjective judgments and where there is significant risk of material adjustments to assets and liabilities in future accounting periods include fair value measurements for financial instruments and share-based transactions, useful lives and impairment of non-financial assets (property and equipment and intangible assets), provision for expected credit losses, fair value measurements for assets and liabilities acquired in business acquisition, and calculation of deferred taxes.
Revenue recognition
Revenues are billed to and collections are received from both third-party insurers and patients. Because of continuing changes in the health care industry and third-party reimbursement, the consideration receivable from these insurance companies is variable as these billings can be challenged by the payer. Therefore, the amount billed by the Company is reduced by an estimate of the amount that the Company believes is an allowable charge to be ultimately allowed by the insurance contract. The above estimate involves significant judgment including an analysis of past collections and historical modification rates. Management regularly reviews the actual claims approved by the insurance companies, adjusting as required.
Valuation of accounts receivable
The measurement of expected credit losses considers information about past events and current conditions. Forward looking macro-economic factors are incorporated into the risk parameters, such as unemployment rates, inflation, and interest rates. Significant judgments are made in order to incorporate forward-looking information into the estimation of allowances and may result in changes to the provision from period to period which may significantly affect our results of operations.
The Company estimates that a certain portion of receivables from customers may not be collected and maintains an allowance for doubtful accounts. The Company evaluates the net realizable value of accounts receivable as of the date of the consolidated balance sheets. Specifically, the Company considers historical realization data, including current and historical cash collections, accounts receivable aging trends, other operating trends, and relevant business conditions. Because of continuing changes in the health care industry and third-party reimbursement, it is possible that the estimates could change, which could have a material impact on the operations and cash flows. If circumstances related to certain customers change or actual results differ from expectations, our estimate of the recoverability of receivables could fluctuate from that provided for in our consolidated financial statements. A change in estimate could impact bad debt expense and accounts receivable.
Page | 8
|
MANAGEMENT’S DISCUSSION AND ANALYSIS December 31, 2020 and 2019 (Tabular dollar amounts expressed in thousands, except per share amounts) |
|
Business combinations
In accordance with IFRS 3 – Business Combination (“IFRS 3”), a transaction is recorded as a business combination if the significant assets, liabilities, or activities in addition to property and related mortgage debt assumed constitute a business. A business is defined as an integrated set of activities and assets, capable of being conducted and managed for the purpose of providing a return, lower costs, or other economic benefits. Where there are no such integrated activities, the transaction is treated as an asset acquisition. The estimation of the fair value of the assets and liabilities acquired in an acquisition is subject to judgement concerning estimating market values and predicting future events. These values are uncertain and can materially impact the carrying value of the acquired assets and the amount allocated to goodwill.
Lease liabilities
Estimate of lease term
When the Company recognizes a lease, it assesses the lease term based on the conditions of the lease and determines whether it will extend the lease at the end of the lease contract or exercise an early termination option. As it is not reasonably certain that the extension or early termination options will be exercised, the Company determined that the term of its leases are the lesser of original lease term or the life of the leased asset. This significant estimate could affect future results if the Company extends the lease or exercises an early termination option.
Incremental borrowing rate
When the Company recognizes a lease, the future lease payments are discounted using the Company’s incremental borrowing rate. This significant estimate impacts the carrying amount of the lease liabilities and the interest expense recorded on the consolidated statement of loss and comprehensive loss.
Significant accounting judgments
The following are the critical judgments, apart from those involving estimations, that have been made in the process of applying the Company's accounting policies and that have the most significant effect on the amounts recognized in the consolidated financial statements.
Functional currency
The consolidated financial statements of the Company are presented in US dollars, which is the Company’s functional currency. Determined using management’s judgment that the primary economic environment in which it will derive its revenue and expenses incurred to generate those revenues is the United States. Management has exercised judgment in selecting the functional currency of each of the entities that it consolidates based on the primary economic environment in which the entity operates and in reference to the various indicators including the currency that primarily influences or determines the selling prices of goods and services and the cost of production, including labor, material and other costs and the currency whose competitive forces and regulations mainly determine selling prices.
Business combinations
In accordance with IFRS 3 – Business Combination (“IFRS 3”), a transaction is recorded as a business combination if the significant assets, liabilities, or activities in addition to property and related mortgage debt assumed constitute a business. A business is defined as an integrated set of activities and assets, capable of being conducted and managed for the purpose of providing a return, lower costs, or other economic benefits. Where there are no such integrated activities, the transaction is treated as an asset acquisition. The estimation of the fair value of the assets and liabilities acquired in an acquisition is subject to judgement concerning estimating market values and predicting future events. These values are uncertain and can materially impact the carrying value of the acquired assets and the amount allocated to goodwill.
Page | 9
|
MANAGEMENT’S DISCUSSION AND ANALYSIS December 31, 2020 and 2019 (Tabular dollar amounts expressed in thousands, except per share amounts) |
|
FINANCIAL INSTRUMENTS AND RISK MANAGEMENT
Financial instrument risk exposure
The Company’ s activities expose it to a variety of financial risks: market risk (including price risk, currency risk and interest rate risk), credit risk and liquidity risk. These risks arise from the normal course of operations and all transactions are undertaken to support the Company’ s ability to continue as a going concern. Risk management is carried out by management under policies approved by the Board of Directors. Management identifies and evaluates the financial risks in co-operation with the Company’s operating units. The Company’ s overall risk management program seeks to minimize potential adverse effects on the Company’s financial performance.
Credit risk
Credit risk is the risk that one party to a financial instrument will fail to discharge an obligation and cause the other party to incur a financial loss. Financial instruments that potentially subject the Company to credit risk are primarily cash and accounts receivable. Each subsidiary places its cash with one major financial institution. At times, the cash in the financial institution is temporarily in excess of the amount insured by the Federal Deposit Insurance Corporation. Substantially all accounts receivables are due under fee-for-service contracts from third party payors, such as insurance companies and government-sponsored healthcare programs, directly from patients or for rebates due from manufacturers. Receivables generally are collected within industry norms for third-party payors and from manufacturers. The Company continuously monitors collections from its clients and maintains an allowance for bad debts based upon any specific payor collection issues that are identified and historical experience.
The Company recorded bad debt expense of $8,668,000 and $5,686,000 for years ended September 30, 2020 and 2019, respectively. As of September 30, 2020, no one customer represented more than 10% of outstanding accounts receivable. The Company does have more than 9% of receivables through Medicare. As this is a Federal program there is very little credit risk associated with these balances.
Currency risk
Currency risk is the risk that the Company will be subject to foreign currency fluctuations in satisfying obligations denominated in foreign currencies. All of the Company’s sales and inventory sold and most all of the Company’s operating expenses are in US dollars. The Company’s debentures, derivative warrant liability, purchase price payables in shares, and common shares are denominated in Canadian dollars. Cash is maintained in both US dollars. Consequently, the Company is exposed to foreign exchange fluctuations.
The Company’s objective in managing its foreign currency risk is to minimize its net exposures to foreign currency cash flows by holding most of its cash in US dollars. The Company monitors foreign currency exposures and from time to time could authorize the use of derivative financial instruments such as forward foreign exchange contracts to economically hedge a portion of foreign currency fluctuations.
Based on the above net exposure at the three months ended December 31, 2020, depreciation or appreciation of the US dollar against the Canadian dollar could result in a significant effect on net loss. The Company has not employed any currency hedging programs.
Liquidity risk
Liquidity risk is the risk that the Company will not be able to meet its financial obligations as they become due. The Company’s approach in managing liquidity is to ensure, to the extent possible, that it will have enough liquidity to meet its liabilities when due, under both normal conditions, by continuously monitoring actual and budgeted cash flows.
As of December 31, 2020, the Company faces no material liquidity risk and can meet all its current financial obligations as they become due and payable. The Company has $29,529,000 of liabilities that are due within one year. The Company has $41,253,000 of current assets to meet those obligations.
Interest rate risk
Interest rate risk is the risk that the future cash flows of a financial instrument will fluctuate because of changes in market interest rates. Interest rate risk is limited to potential decreases on the interest rate offered on cash held with US and Canadian financial institutions. The Company considers this risk to be immaterial. The interest on the Company’s debt is not subject to cash flow interest rate risk as these instruments bear interest at fixed rates. The Company’s revolving line of credit has a floating rate, but the Company does not borrow significant amounts on this line.
Page | 10
|
MANAGEMENT’S DISCUSSION AND ANALYSIS December 31, 2020 and 2019 (Tabular dollar amounts expressed in thousands, except per share amounts) |
|
RISK FACTORS
While it is impossible to identify all such risk factors, factors that could cause actual results to differ materially from those estimated by us include:
Market Price of the Company Shares
The Company Shares are listed and posted for trading on the TSX Venture Exchange. Securities of small-cap and healthcare companies have experienced substantial volatility in the past, often based on factors unrelated to the financial performance or prospects of the companies involved. These factors include macroeconomic developments in North America and globally, and market perceptions of the attractiveness of particular industries. The price of the Company Shares is also likely to be significantly affected by short-term changes in cost of goods, or in financial condition or results of operations. Other factors unrelated to the performance of the Company that may have an effect on the price of the Company Shares include the following: the extent of analytical coverage available to investors concerning the business of the Company may be limited if investment banks with research capabilities do not follow the Company securities; lessening in trading volume and general market interest in the Company’s securities may affect an investor’s ability to trade significant numbers of the Company Shares; the size of the Company’s public float may limit the ability of some institutions to invest in the Company’s securities; and a substantial decline in the price of the Company Shares that persists for a significant period of time could cause the Company’s securities, if listed on an exchange, to be delisted from such exchange, further reducing market liquidity.
As a result of any of these factors, the market price of the Company Shares at any given point in time may not accurately reflect the long-term value of the Company. Securities class-action litigation often has been brought against companies following periods of volatility in the market price of their securities. The Company may in the future be the target of similar litigation. Securities litigation could result in substantial costs and damages and divert management’s attention and resources.
Dilution
The Company will require additional funds in respect of the further development of the company through acquisition. If the Company raises funds by issuing additional equity securities, such financing will dilute the equity interests of its shareholders.
Future Sales of Shares by Existing Shareholders
Sales of the Company Shares in the public markets, or the potential for such sales, could decrease the trading price of the Company Shares and could impair The Company’s ability to raise capital through future sales of the Company Shares. The Company may from time to time have previously issued securities at an effective price per share which will be lower than the market price of the Company Shares. Accordingly, certain shareholders of The Company may have an investment profit in the Company Shares that they may seek to liquidate.
Limited History of Operations
The Company has a limited history of operations. There can be no assurance that the business of the Company will be successful and generate, or maintain, any profit.
Reimbursement Rates May Decline / Competitive Bid
Reimbursement for services to be provided by the Company come primarily from Medicare and private health insurance companies. The reimbursement rates offered are outside the control of the Company. Reimbursement rates for much of the US health care market have been subject to continual reductions as health insurers and governmental entities attempt to control health care costs. The extent and timing of any reduction in reimbursement rates cannot be predicted by the Company.
Specifically, the Centers for Medicare & Medicaid Services (“CMS”) oversees a competitive bidding program covering durable medical equipment (“DME”), the process in which a Medicare supplier provides DME products to Medicare beneficiaries. It is possible that the Company may not be selected in some or all the Competitive Bidding Area (“CBA”) and/or product categories if and when the next competitive bidding process occurs. Non-selection for CBA and/or product category may result in loss of revenue and referral sources.
Reductions in reimbursement rates can have a material impact on the profitability of the Company’s operations. A reduction in reimbursement may be unrelated to any concurrent decline in the cost of operations, thereby resulting in reduced profitability. The Company’s costs of operations could increase, but the cost increases may not be passed on to customers because reimbursement rates are set without regard to the cost of service.
Page | 11
|
MANAGEMENT’S DISCUSSION AND ANALYSIS December 31, 2020 and 2019 (Tabular dollar amounts expressed in thousands, except per share amounts) |
|
Dependence Upon Relationships With Key Suppliers
There are few manufacturers of equipment for certain of the Company’s products. This presents risks that suppliers may not be able to provide equipment to satisfy demand. Demand may outstrip supply, leading to equipment shortages. Conversely, incorrect demand forecasting could lead to excess inventory. If the Company fails to achieve certain volume of sales, prices of inventory may increase. The industry is subject to a high level of regulatory scrutiny, and government or manufacturer recalls could adversely affect the Company’s ability to achieve revenue targets. Inadequate supply could impair the Company’s ability to attract new business and could create upward pricing pressure on equipment and supplies, adversely affecting margins for the Company.
Reliance Upon Few Payors
The Company will earn revenues by seeking reimbursement from Medicare and private health insurance companies, with the Medicare program of the US government being the largest entity making payments. If the Medicare program were to slow payments of receivables for any reason, the Company would be adversely impacted. In addition, both governmental and private health insurance companies may seek ways to avoid or delay reimbursement, which could adversely affect cash flow and revenues for the Company.
Government Regulation
Some operations of the Company will require certain licenses and permits from the authorities in the United States. The ability of the Company and its subsidiaries to obtain, sustain, or renew any such licenses and permits on acceptable terms is subject to changes in regulations and policies and to the discretion of the applicable authorities or other governmental agencies. The ability of the Company to collect certain revenues in the future will depend on the Company receiving approval of an independent diagnostic testing facility and entering into an agreement with Medicare. There is no guarantee that the Company will meet these conditions. The Company will be subject to regulation from United States federal and state authorities. Regulatory action could disrupt its ability to provide services. Such regulatory action could come in the form of actions against manufacturers, unrelated to the Company’s conduct, or actions based upon the Company’s operation. Regulatory action could prevent or delay reimbursement for certain services.
There could also be legislative action that could adversely affect the Company’s business model, including, without limitation: a decision by the United States government to become the exclusive provider of health care services at some time in the future; changes in United States federal or state laws, rules, and regulations, including those governing the corporate practice of medicine, and fee splitting; and changes in the United States Anti-Kickback Statute and Stark Law and/or similar state laws, rules, and regulations. Conversely, budgetary problems in the United States could lead to reduced funding, substantial modification or elimination of Medicare programs, which would end reimbursement for many patients. There can be no assurance that new rules and regulations will not be enacted or that existing rules and regulations will not be applied in a manner which could limit or curtail the business of the Company. Amendments to current laws and regulations could have a substantial adverse impact on the Company.
Highly Competitive Market
The Company will participate in a highly competitive market, which may become more competitive as new players enter. Certain competitors will be subsidiaries or divisions of larger, much better capitalized companies. Certain competitors will have vertically integrated manufacturing and services sectors of the market. The Company may have less capital and may encounter greater operational challenges in serving the market. Better capitalized competitors may also be expected to borrow money or raise debt to purchase equipment more easily than the Company.
Foreign Subsidiaries
The Company plans to conduct all its operations through respective United States subsidiaries. Therefore, to the extent of these holdings, the Company (directly and indirectly) will be dependent on the cash flows of these subsidiaries to meet its obligations. The ability of such subsidiaries to make payments to their parent companies may be constrained by the following factors: the level of taxation, particularly corporate profits and withholding taxes, in the jurisdiction in which each subsidiary operates; and the introduction of exchange controls or repatriation restrictions or the availability of hard currency to be repatriated.
Attraction and Retention of Key Personnel Including Directors
The Company will have a small management team and the loss of a key individual or inability to attract suitably qualified staff could have a material adverse impact on the business of The Company. The Company may also encounter difficulties in obtaining and maintaining suitably qualified staff. The success of The Company depends on the ability of management to interpret market data correctly and to interpret and respond to economic, market and other conditions to locate and adopt appropriate opportunities. No assurance can be given that individuals with the required skills will continue employment with The Company or that replacement personnel with comparable skills can be found. The Company will be dependent on the services of key executives, including the directors of The Company and a small number of highly skilled and experienced executives and personnel. Due to the relatively small size of The Company, the loss of these persons or The Company’s inability to attract and retain additional highly skilled employees may adversely affect its business and future operations.
Page | 12
|
MANAGEMENT’S DISCUSSION AND ANALYSIS December 31, 2020 and 2019 (Tabular dollar amounts expressed in thousands, except per share amounts) |
|
Dividends
The Company currently intends to retain future earnings to finance the operation, development, and expansion of its business. The Company does not anticipate paying cash dividends on the Company Shares in the foreseeable future. Payment of future cash dividends, if any, will be at the discretion of the Company Board and will depend on the Company’s financial condition, results of operations, contractual restrictions, capital requirements, business prospects and other factors that the Company Board may consider relevant. Accordingly, investors will only see a return on their investment if the value of the Company Shares appreciates.
Discretion in the Use of Available Funds
Management will have broad discretion concerning the use of the available funds of the Company as well as the timing of their expenditures. As a result, shareholders and investors will be relying on the judgment of management of the Company on completion of the Arrangement for the application of the available funds of the Company (see “Available Funds and Principal Purposes” above). Management may use the available funds in ways that an investor may not consider desirable. The results and the effectiveness of the application of the available funds are uncertain. If the available funds are not applied effectively, the Company’s results of operations may suffer.
Potential Conflicts of Interest
Some of the directors and officers of the Company are engaged and will continue to be engaged as directors and officers of other companies in the search for additional business opportunities on behalf of such other corporations, and situations may arise where these directors and officers will be in direct competition with the Company. Some of the directors and officers of the Company are or may become directors or officers of other companies engaged in other business ventures.
Conflicts of interest, if any, which arise may be subject to and be governed by procedures prescribed by the Business Corporations Act (British Columbia) which require a director or officer of a corporation who is a party to or is a director or an officer of or has a material interest in any person who is a party to a material contract or proposed material contract with The Company to disclose his interest and to refrain from voting on any matter in respect of such contract unless otherwise permitted under the Business Corporations Act (British Columbia). Any decision made by any of such directors and officers involving the Company should be made in accordance with their duties and obligations to deal fairly and in good faith with a view to the best interests of the Company and its shareholders.
Insurance and Uninsured Risks
The Company’s business will continue to be subject to several risks and hazards generally, including general liability. Such occurrences could result in damage to property, inventory, facilities, personal injury or death, damage to the properties of the Company, or the properties of others, monetary losses, and possible legal liability. The Company may be subject to product liability and medical malpractice claims, which may adversely affect its operations. The Company’s industry is highly regulated, and the Company may be subject to regulatory scrutiny for violations of regulations and laws. The Company could be adversely affected by the time and cost involved with regulatory investigations even if it has operated in compliance with all laws. Investigations could also adversely affect the timely payment of receivables.
Although the Company will maintain insurance to protect against certain risks in such amounts as it considers to be reasonable, its insurance will not cover all the potential risks associated with its operations. The Company may also be unable to maintain insurance to cover these risks at economically feasible premiums. Insurance coverage may not continue to be available or may not be adequate to cover any resulting liability. The Company might also become subject to liability which may not be insured against or which the Company may elect not to insure against because of premium costs or other reasons. Losses from these events may cause the Company to incur significant costs that could have a material adverse effect upon its financial performance and results of operations.
Additional Capital
The development and the business (including acquisitions) of the Company may require additional financing, which may involve high transaction costs, dilution to shareholders, high interest rates or unfavorable terms and conditions. Failure to obtain sufficient financing may result in the delay or indefinite postponement of its business plans. As the Company will likely be unable to obtain traditional debt financing until it has a profitable and longer operating history, the initial primary source of funding available to the Company will consist of equity financing. There can be no assurance that additional capital or other types of financing will be available if needed or that, if available, the terms of such financing will be favorable to the Company.
Page | 13
|
MANAGEMENT’S DISCUSSION AND ANALYSIS December 31, 2020 and 2019 (Tabular dollar amounts expressed in thousands, except per share amounts) |
|
Loss of Foreign Private Issuer Status
The Company may lose its foreign private issuer status in the future, which could result in significant additional costs and expenses. As a foreign private issuer, as defined in Rule 3b-4 under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), the Company is currently exempt from certain of the provisions of the U.S. federal securities laws. For example, an issuer with total assets in excess of US$10 million and whose outstanding equity securities are held by 2,000 or more persons, or 500 or more persons who are not “accredited investors”, must register such securities as a class under the Exchange Act. However, as a foreign private issuer subject to Canadian continuous disclosure requirements, the Company may claim the exemption from registration under the Exchange Act provided by Rule threeg3-2(b) thereunder, even if these thresholds are exceeded. To be considered a foreign private issuer, The Company must satisfy a United States shareholder test (not more than 50% of the voting securities of a company must be held by residents of the United States) if any of the following disqualifying conditions apply: (i) the majority of the Company’s executive officers or directors are United States citizens or residents; (ii) more than 50 percent of The Company’s assets are located in the United States; or (iii) The Company’s business is administered principally in the United States. Based on information available as at the date hereof, approximately 26.7% of the Company’s outstanding voting securities are anticipated to be directly or indirectly held of record by residents of the United States. If the Company loses its status as a foreign private issuer, these regulations could apply and it could also be required to commence reporting on forms required of U.S. domestic companies, such as Forms 10-K, 10-Q and 8-K. It could also become subject to U.S. proxy rules, and certain holders of its equity securities could become subject to the insider reporting and “short swing” profit rules under Section 16 of the Exchange Act. In addition, any securities issued by the Company if it loses foreign private issuer status would become subject to certain rules and restrictions under the Securities Act of 1933, as amended, even if they are issued or resold outside the United States. Compliance with the additional disclosure, compliance and timing requirements under these securities laws would likely result in increased expenses and would require the Company’s management to devote substantial time and resources to comply with new regulatory requirements.
United States Operations and Exchange Rate Fluctuations
All the Company’s revenue generating operations will occur in the United States. The Company will be subject to several risks associated with its operations that may increase liability and costs and require significant management attention. These risks include:
· | compliance with laws of the United States that will apply to the Company’s United States operations, including lawful access, privacy laws and anti-corruption laws |
· | instability in economic or political conditions, including inflation, recession and political uncertainty |
· | potential adverse tax consequences; and |
· | litigation in United States courts. |
In addition, the Company will be exposed to foreign exchange risk as a result of all of its revenue-generating operations taking place in the United States and thus, revenues and expenses being earned and paid in US dollars while having a significant amount of debt denominated in Canadian dollars. If the Canadian dollar appreciates relative to the US dollar, the Company’s Canadian dollar liabilities decrease when translated to US dollars for financial reporting purposes. Conversely, if the Canadian dollar depreciates relative to the US dollar, the Company’s Canadian dollar liabilities will increase when translated to US dollars for financial reporting purposes.
The Company expects to continue to maintain cash balances in both United States and Canadian dollars, but management anticipates that it will not purchase any securities or financial instruments to speculate on or hedge against a rise or fall in the value of the United States dollar.
COVID-19 Pandemic
On March 11, 2020, the World Health Organization declared the outbreak of a novel strain of coronavirus (“COVID-19”) a global pandemic. In response to the outbreak, governmental authorities in the United States and internationally have introduced various recommendations and measures to try to limit the pandemic, including travel restrictions, border closures, non-essential business closures, quarantines, self-isolations, shelters-in-place, and social distancing. The COVID-19 outbreak and the response of governmental authorities to try to limit it are having a significant impact on the private sector and individuals, including unprecedented business, employment, and economic disruptions.
Although the Company has taken steps to mitigate the impact of COVID-19, the continued presence and spread of COVID-19 nationally and globally could have a material adverse impact on the Company’s business, operations, and financial results and position, including through employee attrition, disruptions to the Company’s supply chains and sales channels, restrictions of operations at our retail stores, changes in the number of Americans with health insurance resulting in a change in demand for the Company’s products, as well as a deterioration of general economic conditions including a possible national or global recession. Due to the speed with which the COVID-19 situation is developing and the uncertainty of its magnitude, outcome, and duration, it is not possible to estimate its impact on the Company’s business, operations, financial results and position or prospects at this time.
The Company continues to monitor the situation and work with its stakeholders (including customers, employees, and suppliers) in order to assess further possible implications to its business, supply chain, and customers, and, where practicable, mitigate adverse consequences and responsibly address this global pandemic.
The actual and threatened spread of COVID-19 globally could adversely affect global economies and financial markets, resulting in a prolonged economic downturn and a decline in the value of the Company’s share price. The extent to which COVID-19 (or any other disease, epidemic, or pandemic) impacts business activity or financial results, and the duration of any such negative impact, will depend on future developments, which are highly uncertain and cannot be predicted, including new information which may emerge concerning COVID-19 and the actions required to contain or treat its impact, among others.
Page | 14
Exhibit 99.87
Protech Home Medical Corp.
Condensed Consolidated Interim Financial Statements
2021 First Quarter
For the Three Months Ended
December 31, 2020 and 2019
(UNAUDITED)
(Expressed in US dollars)
TABLE OF CONTENTS
Condensed Consolidated Interim Statements of Financial Position |
Page 1 |
Condensed Consolidated Interim Statements of Income (Loss) and Comprehensive Income (Loss) | Page 2 |
Condensed Consolidated Interim Statements of Changes in Shareholders’ Equity | Page 3 |
Condensed Consolidated Interim Statements of Cash Flows | Page 4 |
Notes to the Condensed Consolidated interim Financial Statements | Pages 5-19 |
NOTICE OF NO AUDITOR REVIEW OF INTERIM FINANCIAL STATEMENTS
Under National Instrument 51-102, Part 4, subsection 4.3 (3) (a), if an auditor has not performed a review of these condensed consolidated interim financial statements, they must be accompanied by a notice indicating that the financial statements have not been reviewed by an auditor.
The accompanying unaudited condensed consolidated interim financial statements of the Protech Home Medical Corp (the “Company”) have been prepared by and are the responsibility of the Company’s management and approved by the Board of Directors of the Company.
The Company’s independent auditor has not performed a review of these unaudited condensed consolidated interim financial statements in accordance with standards established by the Canadian Institute of Chartered Professional Accountants for a review of interim financial statements by an entity’s auditor.
pROTECH HOME MEDICAL CORP.
CONDENSED CONSOLIDATED INTERIM STATEMENTS OF FINANCIAL POSITION
(UNAUDITED)
(Expressed in thousands of US Dollars, except per share amounts)
Notes |
As
at
|
As
at
|
||||||||||
ASSETS | ||||||||||||
Current Assets | ||||||||||||
Cash | $ | 23,593 | $ | 29,227 | ||||||||
Accounts receivable, net | 4 | 9,393 | 9,089 | |||||||||
Inventory | 5 | 7,807 | 6,415 | |||||||||
Prepaid and other current assets | 460 | 552 | ||||||||||
Total current assets | 41,253 | 45,283 | ||||||||||
Long-term assets | ||||||||||||
Property, equipment, and right of use assets, net | 6 | 17,988 | 16,667 | |||||||||
Goodwill | 7 | 13,343 | 3,895 | |||||||||
Intangible assets, net | 7 | 5,370 | 5,579 | |||||||||
Deferred financing costs | 12 | 522 | 556 | |||||||||
Deposits | 86 | 85 | ||||||||||
Total long-term assets | 37,309 | 26,782 | ||||||||||
TOTAL ASSETS | $ | 78,562 | $ | 72,065 | ||||||||
LIABILITIES | ||||||||||||
Current Liabilities | ||||||||||||
Accounts payable | $ | 7,642 | $ | 7,434 | ||||||||
Current portion of equipment loans | 12 | 4,290 | 4,311 | |||||||||
Current portion of leases | 12 | 2,333 | 2,037 | |||||||||
Accrued liabilities | 2,164 | 3,488 | ||||||||||
Government grant | 8 | 3,308 | 2,599 | |||||||||
Deferred revenue | 9 | 1,904 | 1,804 | |||||||||
Purchase price payable in shares | 3,10 | 4,426 | - | |||||||||
Purchase price payable | 3 | 1,196 | 857 | |||||||||
Derivative warrant liability | 11 | 2,262 | 1,855 | |||||||||
Total current liabilities | 29,525 | 24,385 | ||||||||||
Long-Term Liabilities | ||||||||||||
Debentures | 12 | 14,193 | 12,930 | |||||||||
Equipment loans | 12 | 282 | 439 | |||||||||
Lease liabilities | 12 | 3,686 | 3,230 | |||||||||
Government grant | 8 | 1,577 | 2,286 | |||||||||
Long-term purchase price payable | 3 | 321 | 560 | |||||||||
TOTAL LIABILITIES | 49,584 | 43,830 | ||||||||||
SHAREHOLDERS' EQUITY | ||||||||||||
Share capital | 13 | 168,874 | 168,089 | |||||||||
Contributed surplus | 16,515 | 16,648 | ||||||||||
Accumulated deficit | (166,325 | ) | (166,554 | ) | ||||||||
Accumulated other comprehensive income | 9,914 | 10,052 | ||||||||||
TOTAL SHAREHOLDERS' EQUITY | 28,978 | 28,235 | ||||||||||
TOTAL LIABILITIES AND EQUITY | $ | 78,562 | $ | 72,065 | ||||||||
The accompanying notes are an integral part of these consolidated financial statements
Page | 1
PROTECH HOME MEDICAL CORP.
CONDENSED CONSOLIDATED INTERIM STATEMENTS OF INCOME (LOSS) AND COMPREHENSIVE INCOME (LOSS) (UNAUDITED)
(Expressed in thousands of US Dollars, except per share amounts)
Notes |
Three Months
Ended, December 31, 2020 |
Three Months
Ended, December 31, 2019 |
||||||||||
Revenue | ||||||||||||
Sales of medical equipment and supplies | $ | 10,402 | $ | 7,472 | ||||||||
Rentals of medical equipment | 12,353 | 9,779 | ||||||||||
Total revenue | 22,755 | 17,251 | ||||||||||
Inventory sold | 6,071 | 4,379 | ||||||||||
Operating expenses | 15 | 11,529 | 9,696 | |||||||||
Depreciation | 6 | 3,095 | 3,448 | |||||||||
Amortization of intangible assets | 7 | 209 | 181 | |||||||||
Stock-based compensation | 13 | 15 | 32 | |||||||||
Acquisition-related costs | 3 | 56 | - | |||||||||
Gain on disposals of property and equipment | (27 | ) | (60 | ) | ||||||||
Other income | - | (107 | ) | |||||||||
Income (loss) from continuing operations before financing and taxes | 1,807 | (318 | ) | |||||||||
Financing expenses | ||||||||||||
Interest expense on convertible debenture | 12 | 230 | 227 | |||||||||
Interest expense on leases | 12 | 125 | 118 | |||||||||
Interest expense on loans | 12 | 85 | 112 | |||||||||
Interest expense on revolver | 12 | 13 | - | |||||||||
Amortization of financing costs | 9 | 34 | - | |||||||||
Loss on fair value of purchase price payable in shares | 10 | 108 | - | |||||||||
Loss on fair value of derivative warrant liability | 11 | 348 | - | |||||||||
Loss on fair value of convertible debentures | 635 | 553 | ||||||||||
Income (loss) from continuing operations before taxes | 229 | (1,328 | ) | |||||||||
Provision for income taxes | - | - | ||||||||||
Income (loss) from continuing operations | 229 | (1,328 | ) | |||||||||
Discontinued operations: | ||||||||||||
Income (loss) from discontinued operations | - | - | ||||||||||
Net income (loss) | $ | 229 | $ | (1,328 | ) | |||||||
Other comprehensive income | ||||||||||||
Cumulative translation adjustment | (139 | ) | (408 | ) | ||||||||
Comprehensive income (loss) | $ | 90 | $ | (1,736 | ) | |||||||
Net income (loss) per share (Note 18) | ||||||||||||
Basic earnings per share | $ | 0.00 | $ | (0.02 | ) | |||||||
Diluted earnings per share | $ | 0.00 | $ | (0.02 | ) | |||||||
Weighted average number of common shares outstanding: | ||||||||||||
Basic | 16 | 112,507 | 83,589 | |||||||||
Diluted | 16 | 121,863 | 83,589 |
The accompanying notes are an integral part of these consolidated financial statements
Page | 2
PROTECH HOME MEDICAL CORP.
CONDENSED CONSOLIDATED INTERIM STATEMENTS OF CHANGES IN SHAREHOLDERS’ EQUITY (UNAUDITED)
(Expressed in thousands of US Dollars, except per share amounts)
Notes |
Number of
Shares
|
Capital
stock |
Contributed
surplus |
Accumulated
|
Accumulated
|
Total
shareholders' equity |
|||||||||||||||||||||
Balance, September 30, 2019 | 83,589 | $ | 149,661 | $ | 16,152 | $ | (162,610 | ) | $ | 12,645 | $ | 15,848 | |||||||||||||||
Net loss | - | - | - | (1,328 | ) | - | (1,328 | ) | |||||||||||||||||||
Cumulative translation adjustment | - | - | - | - | (410 | ) | (410 | ) | |||||||||||||||||||
Stock-based compensation | 13 | - | - | 32 | - | - | 32 | ||||||||||||||||||||
Balance, December 31, 2019 | 83,589 | $ | 149,661 | $ | 16,184 | $ | (163,938 | ) | $ | 12,235 | $ | 14,142 | |||||||||||||||
Balance, September 30, 2020 | 112,277 | $ | 168,089 | $ | 16,648 | $ | (166,554 | ) | $ | 10,052 | $ | 28,235 | |||||||||||||||
Net income | - | - | - | 229 | - | 229 | |||||||||||||||||||||
Cumulative translation adjustment | - | - | - | - | (138 | ) | (138 | ) | |||||||||||||||||||
Stock-based compensation | 13 | - | - | 15 | - | - | 15 | ||||||||||||||||||||
Stock options exercised | 13 | 59 | 85 | (40 | ) | - | - | 45 | |||||||||||||||||||
Compensation options exercised | 13 | 415 | 523 | (108 | ) | - | - | 415 | |||||||||||||||||||
Exercise of warrants, including transfer of derivative warrant liability of $35 | 11,13 | 115 | 177 | - | - | - | 177 | ||||||||||||||||||||
Balance, December 31, 2020 | 112,866 | $ | 168,874 | $ | 16,515 | $ | (166,325 | ) | $ | 9,914 | $ | 28,978 |
The accompanying notes are an integral part of these consolidated financial statements
Page | 3
PROTECH HOME MEDICAL CORP.
CONDENSED CONSOLIDATED INTERIM STATEMENTS OF CASH FLOWS (UNAUDITED)
(Expressed in thousands of US Dollars, except per share amounts)
Notes |
Three months
ended December 31, 2020 |
Three months
ended December 31, 2019 |
||||||||||
Operating activities | ||||||||||||
Income (loss) from continuing operations | $ | 229 | $ | (1,328 | ) | |||||||
Income (loss) from discontinued operations | - | - | ||||||||||
Adjustments to reconcile net loss to net cash provided by operating activities: | ||||||||||||
Depreciation and amortization | 6,7 | 3,304 | 3,629 | |||||||||
Amortization of financing costs | 34 | - | ||||||||||
Interest expense on leases and loans | 12 | 210 | 230 | |||||||||
Loss on fair value of purchase price payable in shares | 10 | 108 | - | |||||||||
Loss on fair value of derivative warrant liability | 11 | 348 | - | |||||||||
Loss on fair value of convertible debentures | 12 | 635 | 553 | |||||||||
Gain on disposal of property and equipment | (27 | ) | (60 | ) | ||||||||
Stock-based compensation | 13 | 15 | 32 | |||||||||
Bad debt expense | 2,079 | 1,503 | ||||||||||
Change in working capital: | ||||||||||||
Net increase in accounts receivable | (1,266 | ) | (507 | ) | ||||||||
Net increase in inventory | (939 | ) | (405 | ) | ||||||||
Net increase in prepaid and other current assets | 91 | (8 | ) | |||||||||
Net increase in deferred revenue | - | - | ||||||||||
Net increase in accounts payables and accrued liabilities | (1,981 | ) | (42 | ) | ||||||||
Net cash flow provided by operating activities | 2,840 | 3,597 | ||||||||||
Investing activities | ||||||||||||
Purchase of property and equipment | 6 | (387 | ) | (33 | ) | |||||||
Cash proceeds from sale of property and equipment | 137 | 70 | ||||||||||
Cash paid for acquisitions | 3 | (6,623 | ) | (3,351 | ) | |||||||
Net cash flow used in investing activities | (6,873 | ) | (3,314 | ) | ||||||||
Financing activities | ||||||||||||
Repayments of long-term debt | 12 | (2,925 | ) | (3,803 | ) | |||||||
Proceeds from exercise of warrants | 13 | 142 | - | |||||||||
Proceeds from exercise of options | 13 | 460 | - | |||||||||
Net cash flow used in financing activities | (2,323 | ) | (3,803 | ) | ||||||||
Net decrease in cash | (6,356 | ) | (3,520 | ) | ||||||||
Effect of exchange rate changes on cash held in foreign currencies | 722 | 117 | ||||||||||
Cash, beginning of quarter | 29,227 | 9,739 | ||||||||||
Cash, end of quarter | $ | 23,593 | $ | 6,336 |
The accompanying notes are an integral part of these consolidated financial statements
Page | 4
PROTECH HOME MEDICAL CORP.
NOTES TO THE CONDENSED CONSOLIDATED INTERIM FINANCIAL STATEMENTS
(UNAUDITED)
(Tabular dollar amounts expressed in thousands of US Dollars, except per share amounts)
1. | Nature of operations |
Reporting entity
Protech Home Medical Corp. ("Protech" or the “Company”) was incorporated under the Business Corporations Act (Alberta) on March 5, 1993. On December 30, 2013, the Company was continued into British Columbia, Canada. The address of the registered office is 666 Burrard St, Vancouver, British Columbia, V6C 2Z7. The head office is located at 1019 Town Drive, Wilder, Kentucky, United States. The Company is a participating Medicare provider that provides i) nebulizers, oxygen concentrators, and CPAP and BiPAP units; ii) traditional and non-traditional durable medical respiratory equipment and services; and iii) non-invasive ventilation equipment, supplies and services. The Company has embarked on an acquisition strategy for additional revenue and profit growth. The Company’s shares are traded on the TSX Venture Exchange under the symbol PTQ. The stock is also traded on the OTCQX Best Market in the United States under the symbol PTQQF.
Basis of measurement
These consolidated financial statements have been prepared on a going concern basis that assumes that the Company will continue its operations for the foreseeable future and be able to realize its assets and discharge its liabilities and commitments in the normal course of operation.
Change in Presentation Currency
Effective October 1, 2020, the Company changed its presentation currency to US dollars from Canadian dollars. Since the Company operates in the United States and its functional currency is US dollars, the Company believes that the change in presentation currency will provide stakeholders with a better reflection of the Company's business activities and enhance the comparability of the Company's financial information. The change in presentation currency represents a voluntary change in accounting policy, which is accounted for retrospectively. The consolidated financial statements for all periods presented have been translated into the new presentation currency in accordance with IAS 21 - The Effects of Changes in Foreign Exchange Rates.
The consolidated statements of operations and comprehensive income (loss) and the consolidated statements of cash flows have been translated into the presentation currency using the average exchange rates prevailing during each reporting period. In the consolidated statements of financial position, all assets and liabilities have been translated using the period-end exchange rates, and all resulting exchange differences have been recognized in accumulated other comprehensive loss. Asset and liability amounts previously reported in Canadian dollars have been translated into US dollars as at October 1, 2019 and September 30, 2020, using the period-end exchange rates of 1.3242 C$/US$ and 1.3339 C$/US$, respectively. The statements of income (loss) and comprehensive income (loss) and statement of cash flows have been translated at an exchange rate of 1.3199 C$/US$ three months ended December 31, 2019.
COVID-19 Pandemic
On March 11, 2020, the World Health Organization declared the outbreak of a novel strain of coronavirus (“COVID-19”) a global pandemic. In response to the outbreak, governmental authorities in the United States and internationally have introduced various recommendations and measures to try to limit the pandemic, including travel restrictions, border closures, non-essential business closures, quarantines, self-isolations, shelters-in-place, and social distancing. The COVID-19 outbreak and the response of governmental authorities to try to limit it are having a significant impact on the private sector and individuals, including unprecedented business, employment, and economic disruptions.
Although the Company has taken steps to mitigate the impact of COVID-19, the continued presence and spread of COVID-19 nationally and globally could have a material adverse impact on the Company’s business, operations, and financial results and position, including through employee attrition, disruptions to the Company’s supply chains and sales channels, restrictions of operations at our retail stores, changes in the number of Americans with health insurance resulting in a change in demand for the Company’s products, as well as a deterioration of general economic conditions including a possible national or global recession. Due to the speed with which the COVID-19 situation is developing and the uncertainty of its magnitude, outcome, and duration, it is not possible to estimate its impact on the Company’s business, operations, financial results and position or prospects at this time.
Page | 5
PROTECH HOME MEDICAL CORP.
NOTES TO THE CONDENSED CONSOLIDATED INTERIM FINANCIAL STATEMENTS
(UNAUDITED)
(Tabular dollar amounts expressed in thousands of US Dollars, except per share amounts)
The Company continues to monitor the situation and work with its stakeholders (including customers, employees, and suppliers) in order to assess further possible implications to its business, supply chain, and customers, and, where practicable, mitigate adverse consequences and responsibly address this global pandemic.
The actual and threatened spread of COVID-19 globally could adversely affect global economies and financial markets, resulting in a prolonged economic downturn and a decline in the value of the Company’s share price. The extent to which COVID-19 (or any other disease, epidemic, or pandemic) impacts business activity or financial results, and the duration of any such negative impact, will depend on future developments, which are highly uncertain and cannot be predicted, including new information which may emerge concerning COVID-19 and the actions required to contain or treat its impact, among others.
See Note 9 for relief payments the Company received related to the U.S. Coronavirus Aid, Relief and Economic Security (“CARES”) Act.
2. | Summary of significant accounting policies |
Unreserved statement of compliance
These unaudited condensed consolidated interim financial statements have been prepared in accordance with International Accounting Standard (IAS) 34, Interim Financial Reporting using accounting policies consistent with International Financial Reporting Standards (IFRS) as issued by the International Accounting Standards Board. These condensed consolidated interim financial statements do not include all the disclosures required in annual consolidated financial statements and should be read in conjunction with the Company’s audited consolidated financial statements for the years ended September 30, 2020 and 2019.
Except as noted, the Company has followed the same basis of presentation, accounting policies and method of computation for these condensed consolidated interim financial statements as disclosed in the annual audited consolidated financial statements for the years ended September 30, 2020 and 2019.
The unaudited condensed consolidated interim financial statements were approved and authorized for issuance by the Board of Directors on March 1, 2021.
These unaudited condensed consolidated interim financial statements, which are presented in US dollars, have been prepared under the historical cost convention, as modified by the measurement at fair values of certain financial assets and financial liabilities.
Critical accounting estimates
The preparation of financial statements in conformity with IFRS requires management to make certain estimates, judgments, and assumptions concerning the future. The Company’s management reviews these estimates, judgments, and assumptions on an ongoing basis, based on experience and other factors, including expectations of future events that are believed to be reasonable under the circumstances. Revisions to estimates are adjusted prospectively in the period in which the estimates are revised.
Estimates where management has made subjective judgments and where there is significant risk of material adjustments to assets and liabilities in future accounting periods include fair value measurements for financial instruments and share-based transactions, useful lives and impairment of non-financial assets (property and equipment and intangible assets), provision for expected credit losses, fair value measurements for assets and liabilities acquired in business acquisition, and calculation of deferred taxes
The following are the key estimate and assumption uncertainties that have a significant risk of resulting in a material adjustment within the next financial year:
Revenue recognition
Revenues are billed to and collections are received from both third-party insurers and patients. Because of continuing changes in the health care industry and third-party reimbursement, the consideration receivable from these insurance companies is variable as these billings can be challenged by the payer. Therefore, the amount billed by the Company is reduced by an estimate of the amount that the Company believes is an allowable charge to be ultimately allowed by the insurance contract. The above estimate involves significant judgment including an analysis of past collections and historical modification rates. Management regularly reviews the actual claims approved by the insurance companies, adjusting as required.
Page | 6
PROTECH HOME MEDICAL CORP.
NOTES TO THE CONDENSED CONSOLIDATED INTERIM FINANCIAL STATEMENTS
(UNAUDITED)
(Tabular dollar amounts expressed in thousands of US Dollars, except per share amounts)
Sales of medical equipment and supplies
The Company sells equipment, replacement parts, and supplies to customers and recognizes revenue based on contractual payment rates as determined by the payors at the point in time where control of the good or service is transferred through delivery to the customer. The payors are generally charged at the time that the product is sold.
The transaction price on equipment sales is the amount that the Company expects to receive in exchange for the goods and services provided. Due to the nature of the industry, gross charges are retail charges and generally do not reflect what the Company is ultimately paid. As such, the transaction price is constrained for the difference between the gross charge and what is estimated to be collected from payors and from patients. The transaction price therefore is predominantly based on contractual payment rates as determined by the payors. The Company does not generally contract with uninsured customers but does offer point-of-sale payments at retail outlets. The payment terms and conditions of customer contracts vary by customer type and the products and services offered.
The Company determines its estimates of contractual allowances and discounts based upon contractual agreements and historical experience. While the rates are fixed for the product or service with the customer and the payors, such amounts typically include co-payments, co-insurance and deductibles, which vary in amounts, and are due from secondary insurance and/or the patient. The Company includes in the transaction price only the amount that the Company expects to be entitled, which is substantially all of the payor billings at contractual rates.
Due to the nature of the industry and the reimbursement environment in which the Company operates, certain estimates are required to record net revenue and accounts receivable at their net realizable values. Inherent in these estimates is the risk that they will have to be revised or updated as additional information becomes available. Specifically, the complexity of many third-party billing arrangements and the uncertainty of reimbursement amounts for certain services from certain payors may result in adjustments to amounts originally recorded. Such adjustments are typically identified and recorded at the point of claim approval or denial.
Returns and refunds are not accepted on equipment sales. The Company does not offer warranties to customers in excess of the manufacturer’s warranty. Any taxes due upon sale of the products or services are not recognized as revenue. The Company does not have any partially or unfilled performance obligations related to contracts with customers and as such, the Company has no contract liabilities as of September 30, 2020.
Rental of medical equipment
The Company rents medical equipment to customers for a fixed monthly amount on a month-to-month basis. The customer generally has the right to cancel the lease at any time during the rental period. The Company considers these rentals to be operating leases. Under IFRS 16, “Leases”, the Company recognizes rental revenue on operating leases on a straight-line basis over the contractual lease term, resulting in deferred revenue for the portion of the monthly rent that is after the consolidated statement of financial position date. The term begins on the date products are delivered to patients, and revenues are recorded at amounts estimated to be received under reimbursement arrangements with third-party payors, including Medicare, private commercial payors, and Medicaid. Certain customer co-payments are included in revenue when considered probable of payment.
Due to the nature of the industry and the reimbursement environment in which the Company operates, certain estimates are required to record net revenue and accounts receivable at their net realizable values. Inherent in these estimates is the risk that they will have to be revised or updated as additional information becomes available. Specifically, the complexity of many third-party billing arrangements and the uncertainty of reimbursement amounts for certain services from certain payors may result in adjustments to amounts originally recorded. Such adjustments are typically identified and recorded at the point of cash application or claim denial.
Valuation of accounts receivable
The measurement of expected credit losses considers information about past events and current conditions. Forward looking macro-economic factors are incorporated into the risk parameters, such as unemployment rates, inflation, and interest rates. Significant judgments are made in order to incorporate forward-looking information into the estimation of allowances and may result in changes to the provision from period to period which may significantly affect our results of operations.
Page | 7
PROTECH HOME MEDICAL CORP.
NOTES TO THE CONDENSED CONSOLIDATED INTERIM FINANCIAL STATEMENTS
(UNAUDITED)
(Tabular dollar amounts expressed in thousands of US Dollars, except per share amounts)
The Company estimates that a certain portion of receivables from customers may not be collected and maintains an allowance for doubtful accounts. The Company evaluates the net realizable value of accounts receivable as of the date of the consolidated balance sheets. Specifically, the Company considers historical realization data, including current and historical cash collections, accounts receivable aging trends, other operating trends and relevant business conditions. Because of continuing changes in the health care industry and third-party reimbursement, it is possible that the estimates could change, which could have a material impact on the operations and cash flows. If circumstances related to certain customers change or actual results differ from expectations, our estimate of the recoverability of receivables could fluctuate from that provided for in our consolidated financial statements. A change in estimate could impact bad debt expense and accounts receivable.
Valuation of inventories
Inventory is recorded at the lower of cost or market. Inventory is expensed through cost of inventory sold when shipped to customers or transferred to property and equipment when rented to customers. The Company estimates that a certain portion of inventory purchased may be excess, obsolete, or non-saleable. The Company maintains a provision for obsolescence for these items. Valuation of the inventory was assessed at year-end, and all inventory items which more than two years are old and not supported by recent sales were provided for 50% in accordance with Company’s policy.
Property and equipment
Property and equipment is stated at cost less accumulated depreciation. Major renewals and improvements are charged to the property accounts, while maintenance, and repairs which do not extend the useful life of the respective assets, are expensed as incurred. Depreciation is computed using the straight-line method over the estimated useful lives of the respective assets.
The estimated useful lives of the assets are as follows:
Depreciation of rental equipment commences once it has been deployed to a patient’s address and put in use. Property and equipment and other non-current assets with definite useful lives are tested for impairment whenever events or changes in circumstances indicate that their carrying amount may not be recoverable.
Intangible assets
The Company has recorded various intangible assets consisting primarily of non-compete agreements, trademarks, customer contracts and customer relationships. Non-compete agreements are the value associated with the non-compete agreements entered by the sellers of purchased companies. Trademarks are the purchase price allocation for the value associated with the trade name of the acquired company. Customer contracts are comprised of the purchase price allocation of the present value of expected future customer billings based on the statistical life of a customer. Customer relationships are the value given in the purchase price allocation to the long-term associations with referral sources such as doctors, medical centers, etc. Finite life intangible assets are amortized on a straight-line basis over the estimated useful lives of the related assets as follows:
Description | Estimated Useful Life |
Non-compete agreements | 5 Years |
Trademarks | 10 Years |
Customer contracts | 2 Years |
Customer relationships | 10 Years |
Gains or losses arising from de-recognition of an intangible asset are measured as the difference between the net disposal proceeds and the carrying amount of the asset and are recognized in the Statements of Net Loss and Comprehensive Loss when the asset is derecognized.
The Company reviews the estimates for useful lives on an annual basis, or more frequently if events during the year indicate that a change may be required, with consideration given to technological obsolescence and other relevant business factors. A change in management’s estimate could impact depreciation/amortization expense and the carrying value of property and equipment and intangible assets.
Page | 8
PROTECH HOME MEDICAL CORP.
NOTES TO THE CONDENSED CONSOLIDATED INTERIM FINANCIAL STATEMENTS
(UNAUDITED)
(Tabular dollar amounts expressed in thousands of US Dollars, except per share amounts)
Functional currency
The consolidated financial statements of the Company are presented in US dollars, which is the Company’s functional currency. Determined using management’s judgment that the primary economic environment in which it will derive its revenue and expenses incurred to generate those revenues is the United States. Management has exercised judgment in selecting the functional currency of each of the entities that it consolidates based on the primary economic environment in which the entity operates and in reference to the various indicators including the currency that primarily influences or determines the selling prices of goods and services and the cost of production, including labor, material and other costs and the currency whose competitive forces and regulations mainly determine selling prices.
Business combinations
In accordance with IFRS 3 – Business Combination (“IFRS 3”), a transaction is recorded as a business combination if the significant assets, liabilities, or activities in addition to property and related mortgage debt assumed constitute a business. A business is defined as an integrated set of activities and assets, capable of being conducted and managed for the purpose of providing a return, lower costs, or other economic benefits. Where there are no such integrated activities, the transaction is treated as an asset acquisition. The estimation of the fair value of the assets and liabilities acquired in an acquisition is subject to judgement concerning estimating market values and predicting future events. These values are uncertain and can materially impact the carrying value of the acquired assets and the amount allocated to goodwill.
Lease liabilities
Estimate of lease term
When the Company recognizes a lease, it assesses the lease term based on the conditions of the lease and determines whether it will extend the lease at the end of the lease contract or exercise an early termination option. As it is not reasonably certain that the extension or early termination options will be exercised, the Company determined that the term of its leases are the lesser of original lease term or the life of the leased asset. This significant estimate could affect future results if the Company extends the lease or exercises an early termination option.
Incremental borrowing rate
When the Company recognizes a lease, the future lease payments are discounted using the Company’s incremental borrowing rate. This significant estimate impacts the carrying amount of the lease liabilities and the interest expense recorded on the consolidated statement of loss and comprehensive loss.
Recognition and initial measurement
The Company recognizes financial assets when it becomes party to the contractual provisions of the instrument. Financial assets are measured initially at their fair value plus, in the case of financial assets not subsequently measured at fair value through profit or loss, transaction costs that are directly attributable to their acquisition. Transaction costs attributable to the acquisition of financial assets subsequently measured at fair value through profit or loss are expensed in the consolidated statement of income (loss) and comprehensive income (loss) when incurred.
3. | Acquisition of businesses and purchase accounting |
Acquisition of Sleepwell, LLC
Effective October 23, 2020, the Company, through PHM Logistics Corporation, entered into a purchase agreement to acquire the shares of Sleepwell, Inc. (Sleepwell), Georgia company in the same industry as the Company. The purchase price was $11,362,000 of which $6,623,000 was paid in cash at closing, $3,008,000 was payable in stock in January 2021, $357,000 to be paid upon the resolution of Sleepwell’s Payroll Protection Plan loan, and $1,174,000 to be paid in stock and $200,000 to be paid in cash upon the resolution of post-closing adjustments, if any. The Company has determined that the transaction is an acquisition of a business under IFRS 3 and it has been accounted for by applying the acquisition method. The Company expensed $56,000 of legal expenses in conjunction with the acquisition.
Page | 9
PROTECH HOME MEDICAL CORP.
NOTES TO THE CONDENSED CONSOLIDATED INTERIM FINANCIAL STATEMENTS
(UNAUDITED)
(Tabular dollar amounts expressed in thousands of US Dollars, except per share amounts)
The pro forma revenues and net income for Sleepwell for the three months ended December 31, 2020 was approximately $2,700,000 and $800,000, respectively.
The fair value of the acquired assets is provisional pending final valuations of the assets and is as follows:
Cash | $ | 378 | ||
Accounts receivable | 1,118 | |||
Inventory | 454 | |||
Property and equipment | 850 | |||
Right of use real estate | 343 | |||
Goodwill | 9,447 | |||
Accounts payable | (785 | ) | ||
Deferred revenue | (100 | ) | ||
Lease liabilities | (343 | ) | ||
Net assets acquired | $ | 11,362 | ||
Cash paid at closing | $ | 6,623 | ||
Stock paid in January 2021 | 3,008 | |||
Cash to be paid after closing | 557 | |||
Stock to be paid after closing | 1,174 | |||
Consideration paid or payable | $ | 11,362 |
The goodwill is attributable to expected synergies from the combining operations. None of the goodwill is expected to be deductible for tax purposes.
4. | Accounts Receivable |
Accounts receivable represents amounts due from insurance companies and patients:
As at
December 31, 2020 |
As at September 30,
2020 |
|||||||
Gross receivable | $ | 16,167 | $ | 14,867 | ||||
Reserve for expected credit losses | (6,774 | ) | (5,778 | ) | ||||
$ | 9,393 | $ | 9,089 |
As at December 31, 2019 |
Gross
Receivables |
Allowance for
expected credit losses |
Net Receivables | |||||||||
0 – 90 days | $ | 7,523 | $ | (538 | ) | $ | 6,985 | |||||
91 – 180 days | 2,107 | (857 | ) | 1,250 | ||||||||
Over 180 days | 6,537 | (5,379 | ) | 1,158 | ||||||||
Total | $ | 16,167 | $ | (6,774 | ) | $ | 9,393 |
Page | 10
PROTECH HOME MEDICAL CORP.
NOTES TO THE CONDENSED CONSOLIDATED INTERIM FINANCIAL STATEMENTS
(UNAUDITED)
(Tabular dollar amounts expressed in thousands of US Dollars, except per share amounts)
Below is the movement in the reserve for expected credit losses:
Reserve for expected credit losses |
Three months
ended December 31, 2020 |
Three months
ended December 31, 2019 |
||||||
Opening Balance | $ | 5,778 | $ | 2,321 | ||||
Bad debt expense | 2,039 | 1,503 | ||||||
Amounts written off | (1,043 | ) | (1,160 | ) | ||||
Ending Balance | $ | 6,774 | $ | 2,664 |
5. | Inventory |
As at
December 31, 2020 |
As
at
September 30, 2020 |
|||||||
Serialized | $ | 2,436 | $ | 2,132 | ||||
Non-serialized | 5,994 | 4,366 | ||||||
Reserve for shrink and slow-moving | (623 | ) | (83 | ) | ||||
Total Inventory | $ | 7,807 | $ | 6,415 |
6. | Property and equipment and right of use assets |
Cost |
Rental
equipment |
Computer
equipment |
Office
furniture and fixtures |
Leasehold
improvements |
Right
of use
assets - Vehicles |
Right
of use
|
Total | |||||||||||||||||||||
Balance September 30, 2019 | $ | 26,521 | $ | 501 | $ | 430 | $ | 1,161 | $ | 2,568 | $ | - | $ | 31,181 | ||||||||||||||
Additions – adoption of IFRS 16 | - | - | - | - | - | 2,618 | 2,618 | |||||||||||||||||||||
Transfers from inventory | 842 | - | - | - | - | - | 842 | |||||||||||||||||||||
Additions | - | 4 | - | 29 | 246 | 599 | 878 | |||||||||||||||||||||
Acquisitions | 2,124 | - | - | 185 | 160 | 1,097 | 3,566 | |||||||||||||||||||||
Disposals | (3,404 | ) | (4 | ) | (1 | ) | (2 | ) | (55 | ) | - | (3,466 | ) | |||||||||||||||
Balance December 31, 2019 | $ | 26,083 | $ | 501 | $ | 429 | $ | 1,373 | $ | 2,919 | $ | 4,314 | $ | 35,619 | ||||||||||||||
Balance September 30, 2020 | $ | 22,568 | $ | 171 | $ | 333 | $ | 1,364 | $ | 2,872 | $ | 4,990 | $ | 32,298 | ||||||||||||||
Transfers from inventory | 2,259 | - | - | - | - | - | 2,259 | |||||||||||||||||||||
Additions | - | 4 | - | 11 | 163 | 896 | 1,074 | |||||||||||||||||||||
Acquisitions | 850 | - | - | - | - | 343 | 1,193 | |||||||||||||||||||||
Disposals | (2,731 | ) | (17 | ) | (11 | ) | (3 | ) | (177 | ) | (302 | ) | (3,241 | ) | ||||||||||||||
Balance December 31, 2020 | $ | 22,946 | $ | 158 | $ | 322 | $ | 1,372 | $ | 2,858 | $ | 5,927 | $ | 33,583 |
Accumulated depreciation |
Rental
equipment |
Computer
equipment |
Office
furniture and fixtures |
Leasehold
improvements |
Right of use
assets - Vehicles |
Right of use
assets – Real estate |
Total | |||||||||||||||||||||
Balance September 30, 2019 | $ | 14,662 | $ | 368 | $ | 258 | $ | 255 | $ | 1,023 | $ | - | $ | 16,566 | ||||||||||||||
Depreciation | 2,909 | 26 | 25 | 45 | 148 | 295 | 3,448 | |||||||||||||||||||||
Disposals | (3,404 | ) | (4 | ) | (1 | ) | (1 | ) | (33 | ) | - | (3,443 | ) | |||||||||||||||
Balance December 31, 2019 | $ | 14,167 | $ | 390 | $ | 282 | $ | 299 | $ | 1,138 | $ | 295 | $ | 16,571 | ||||||||||||||
Balance September 30, 2020 | $ | 12,311 | $ | 106 | $ | 229 | $ | 309 | $ | 1,182 | $ | 1,494 | $ | 15,631 | ||||||||||||||
Depreciation | 2,411 | 8 | 15 | 29 | 172 | 460 | 3,095 | |||||||||||||||||||||
Disposals | (2,731 | ) | (17 | ) | (11 | ) | (3 | ) | (162 | ) | (207 | ) | (3,131 | ) | ||||||||||||||
Balance December 31, 2020 | $ | 11,991 | $ | 97 | $ | 233 | $ | 335 | $ | 1,192 | $ | 1,747 | $ | 15,595 |
Net Book Value |
Rental
equipment |
Computer
equipment |
Office
furniture and fixtures |
Leasehold
improvements |
Vehicles |
Right
of use
assets – Real estate |
Total | |||||||||||||||||||||
Balance September 30, 2019 | $ | 11,859 | $ | 133 | $ | 172 | $ | 906 | $ | 1,545 | $ | - | $ | 14,615 | ||||||||||||||
Balance December 31, 2019 | $ | 11,916 | $ | 111 | $ | 147 | $ | 1,074 | $ | 1,781 | $ | 4,019 | $ | 19,048 | ||||||||||||||
Balance September 30, 2020 | $ | 10,257 | $ | 64 | $ | 104 | $ | 1,055 | $ | 1,690 | $ | 3,496 | $ | 16,667 | ||||||||||||||
Balance December 31, 2020 | $ | 10,955 | $ | 61 | $ | 89 | $ | 1,037 | $ | 1,666 | $ | 4,180 | $ | 17,988 |
During the three months ended December 31, 2020, the Company obtained equipment loans (Note 12) for $1,887,000 with the balance of $372,000 paid in cash.
Page | 11
PROTECH HOME MEDICAL CORP.
NOTES TO THE CONDENSED CONSOLIDATED INTERIM FINANCIAL STATEMENTS
(UNAUDITED)
(Tabular dollar amounts expressed in thousands of US Dollars, except per share amounts)
7. | Goodwill and intangible assets |
Cost | Goodwill |
Non-compete
agreements |
Brand |
Customer
contracts |
Customer
relationships |
Sub-total
intangibles with finite lives |
Total | |||||||||||||||||||||
Balance September 30, 2019 | $ | 1,410 | $ | 513 | $ | 1,331 | $ | 3,823 | $ | 8,399 | $ | 14,066 | $ | 15,476 | ||||||||||||||
Acquisition | 802 | 51 | 211 | 794 | - | 1,056 | 1,858 | |||||||||||||||||||||
Balance December 31, 2019 | $ | 2,212 | $ | 564 | $ | 1,542 | $ | 4,617 | $ | 8,399 | $ | 15,122 | $ | 17,334 | ||||||||||||||
Balance September 30, 2020 | $ | 3,896 | $ | 637 | $ | 1,881 | $ | 3,851 | $ | 11,722 | $ | 18,090 | $ | 21,987 | ||||||||||||||
Acquisitions | 9,447 | - | - | - | - | - | 9,447 | |||||||||||||||||||||
Disposals | - | - | - | - | (6 | ) | (6 | ) | (6 | ) | ||||||||||||||||||
Balance December 31, 2020 | $ | 13,343 | $ | 637 | $ | 1,881 | $ | 3,851 | $ | 11,716 | $ | 18,084 | $ | 31,427 |
Accumulation amortization | Goodwill |
Non-compete
agreements |
Brand |
Customer
contracts |
Customer
relationships |
Sub-total
intangibles with finite lives |
Total | |||||||||||||||||||||
Balance September 30, 2019 | $ | - | $ | 477 | $ | 882 | $ | 3,701 | $ | 6,824 | $ | 11,884 | $ | 11,884 | ||||||||||||||
Amortization | - | 9 | 20 | 71 | 81 | 181 | 181 | |||||||||||||||||||||
Balance December 31, 2019 | $ | - | $ | 486 | $ | 902 | $ | 3,772 | $ | 6,905 | $ | 12,065 | $ | 12,065 | ||||||||||||||
Balance September 30, 2020 | $ | - | $ | 522 | $ | 989 | $ | 3,845 | $ | 7,160 | $ | 12,516 | $ | 12,516 | ||||||||||||||
Amortization | - | 11 | 33 | 5 | 155 | 204 | 204 | |||||||||||||||||||||
Disposals | - | - | - | - | (6 | ) | (6 | ) | (6 | ) | ||||||||||||||||||
Balance December 31, 2020 | $ | - | $ | 533 | $ | 1,022 | $ | 3,850 | $ | 7,308 | $ | 12,714 | $ | 12,714 |
Net carrying amount |
Goodwill |
Non-compete
agreements |
Brand |
Customer
contracts |
Customer
relationships |
Sub-total
intangibles with finite lives |
Total | |||||||||||||||||||||
Balance September 30, 2019 | $ | 1,420 | $ | 36 | $ | 449 | $ | 122 | $ | 1,575 | $ | 2,182 | $ | 3,592 | ||||||||||||||
Balance December 31, 2019 | $ | 2,212 | $ | 78 | $ | 640 | $ | 845 | $ | 1,494 | $ | 3,057 | $ | 5,269 | ||||||||||||||
Balance September 30, 2020 | $ | 3,895 | $ | 115 | $ | 893 | $ | 5 | $ | 4,562 | $ | 2,911 | $ | 6,806 | ||||||||||||||
Balance December 31, 2020 | $ | 13,343 | $ | 104 | $ | 859 | $ | - | $ | 4,407 | $ | 5,370 | $ | 18,713 |
8. | Government Grant |
During the year ended September 30, 2020, the Company received payments related to the two separate provisions of the CARES Act.
Payroll Protection Plan (“PPP’)
On April 16, 2020, the Company received $4,254,000 related to the PPP, which was to assist companies in maintaining their workforce. The PPP provided for loans to qualifying businesses for amounts up to 2.5 times of the average monthly payroll expenses. The loans and accrued interest are forgivable if the borrower uses the loan proceeds for eligible purposes, including payroll, benefits, rent, and utilities for up to twenty-four weeks, and maintains certain payroll levels. The unforgiven portion of the PPP loan is payable, with 1% interest over 9 monthly installments of $472,000 from September 2021 through ending April 2022.
Since the Company expects to meet the PPP’s eligibility criteria for forgiveness and has concluded that the PPP loan represents, in substance, a grant that is expected to be forgiven, it has accounted for the proceeds under IAS 20, Accounting for Government Grants and Disclosure of Government Assistance. The cash inflow has been reported as a financing activity and a liability has been recorded on the balance sheet. No reduction in the liability has been recorded.
Page | 12
PROTECH HOME MEDICAL CORP.
NOTES TO THE CONDENSED CONSOLIDATED INTERIM FINANCIAL STATEMENTS
(UNAUDITED)
(Tabular dollar amounts expressed in thousands of US Dollars, except per share amounts)
Public Health and Social Services Emergency Fund (“Relief Fund”)
During the year ended September 30, 2020, the Company received $1,797,000 from the Relief Fund, which was established to support healthcare providers to prevent, prepare for, and respond to coronavirus, including health care related expenses or lost revenues, subject to certain terms and conditions. If those terms and conditions are met, payments do not need to be repaid. No expenses related to the PPP can be used to meet the terms and conditions for the Relief Fund.
Since the Company believes it has met the Relief Fund’s terms and conditions, it has accounted for the proceeds under IAS 20, Accounting for Government Grants and Disclosure of Government Assistance. The cash inflow has been reported as a financing activity. The original proceeds were recognized as a liability, which was reduced based on certain related costs relates incurred. During the year ended September 30, 2020, the Company reduced the liability by $1,166,000, which was been included under other expense (income) in the statement of loss and other comprehensive loss.
9. | Deferred Revenue |
Activity for deferred revenue for the three months ended December 31, 2020 and 2019 is as follows:
For the three
months ended December 31, 2020 |
For the three
months ended December 31, 2019 |
|||||||
Beginning balance | $ | 1,804 | $ | 1,472 | ||||
Acquisitions | 100 | 332 | ||||||
Operations | - | - | ||||||
Ending balance | $ | 1,904 | $ | 1,804 |
10. | Purchase price payable in shares |
As discussed in Note 3, the Company acquired Sleepwell on October 23, 2020, with a portion of the purchase price in shares. The acquisition consideration was recorded at the closing price on the date of the acquisition and was recorded as a liability. Prior to the issuance of the shares, the Company will record the liability at the closing price at period end. Upon the issuance of the shares, the Company will derecognize the liability and increase shareholders’ equity. The movement in the liability for the three months ended December 31, 2020 is as follows:
Amount | ||||
Balance September 30, 2020 | $ | - | ||
Issued | 4,182 | |||
Change in fair value | 108 | |||
Change in foreign exchange rate | 136 | |||
Balance December 31, 2020 | $ | 4,426 |
11. | Derivative warrant liability |
On June 29, 2020, the Company completed a bought deal public offering, a concurrent brokered private placement, and a non-brokered private placement to the Company’s Chief Executive Officer and a director of the Company, for 27,678,826 units, respectively. Each unit consisted of one common share and one-half of one common share purchase warrant (each whole warrant, a “Warrant”), for a total of 13,839,412 Warrants. Each Warrant will be exercisable to acquire one common share for a period of 12 months following the closing at an exercise price of C$1.60 per share. The Warrants are recorded as a liability since they are denominated in Canadian Dollars and the Company’s functional currency is US Dollars. The liability was recorded at fair value of $0.16 and $0.13 as of December 31, 2020 and September 30, 2020, respectively, using the Black-Scholes pricing model revaluation is performed each period end, with the change in fair value recorded in the caption “Loss (gain) on fair value of warrants.” Upon exercise, the warrant liability is derecognized and transferred to equity.
Page | 13
PROTECH HOME MEDICAL CORP.
NOTES TO THE CONDENSED CONSOLIDATED INTERIM FINANCIAL STATEMENTS
(UNAUDITED)
(Tabular dollar amounts expressed in thousands of US Dollars, except per share amounts)
Warrant activity for the three months ended December 31, 2020 is provided below:
Amount | ||||
Balance September 30, 2020 | $ | 1,855 | ||
Exercised | (35 | ) | ||
Change in fair value | 348 | |||
Change in foreign exchange rate | 94 | |||
Balance December 31, 2020 | $ | 2,262 |
12. | Long-term Debt |
Debentures
On March 7, 2019, the Company issued C$15,000,000 in 8.0% Convertible Unsecured Debentures due March 7, 2024, with interest payable semi-annually on June 30 and December 31. Each C$1,000 (US$785) debenture is convertible at the option of the holder into approximately 769.23 common shares. As of December 31, 2020, and September 30, 2020, C$4,000 of debentures had been converted into common shares, leaving C$14,996,000 ($11,778,000) of face value of the debentures remaining. After three years, the Company can force conversion of the outstanding principal at conversion price of C$1.30, if the daily volume weighted average price of the common shares exceeds C$1.62 per share for twenty consecutive trading days. The debenture agreement also allows for payment of cash in lieu of common shares upon exercise of conversion right by the holder, equivalent of the market price on the conversion date.
The debentures contain multiple embedded derivatives including conversion right, forced conversion option and payment in lieu of common shares. Since the Company is unable to measure the fair value of embedded derivatives reliably, it has chosen to designate the convertible debentures in their entirety (including conversion right, forced conversion option and payment in lieu of common shares) to be subsequently measured at fair value through profit or loss (FVTPL).
The debentures are valued at fair value using the current trading price of $120.5 and $115 as of December 31, 2020 and September 30, 2020, respectively, per unit. A loss of $635,000 and $553,000 for the three months ended December 31, 2020 and 2019. Following is the movement in these debentures:
Three Months
ended December 31, 2020 |
Three months
ended December 31, 2019 |
|||||||
Beginning Balance | $ | 12,930 | $ | 10,547 | ||||
Change in fair value | 635 | 553 | ||||||
Change in foreign exchange rate | 628 | - | ||||||
Ending Balance | $ | 14,193 | $ | 11,100 |
The Company issued compensation options to the underwriters for 519,231 shares of the Company at an exercise price of C$1.30 for a period of two years from the closing of the transaction. The fair value of the options has been valued at $0.26 for a total of $132,888 using the Black-Scholes pricing model.
Compensation options activity for the three months ended December 31, 2020 is provided below:
Number
(000s) |
Weighted
average exercise price |
|||||||
Balance, September 30, 2020 | 519 | C$ | 1.30 | |||||
Exercised | (415 | ) | 1.30 | |||||
Balance, December 31, 2020 | 104 | C$ | 1.30 |
Equipment Loans
The Company is offered financing arrangements from their suppliers and their designated financial institution, in which payments for certain invoices or products can be financed and paid over an extended period. The financial institution pays the supplier when the original invoice becomes due, and the Company pays the third-party financial institution over a period of time. In some cases, the supplier accepts a discounted amount from the financial institution and the Company repays the financial institution the face amount of the invoice with no stated interest, in twelve equal monthly installments. The Company uses a 6% incremental borrowing rate to impute interest on these arrangements. In other cases, the supplier receives the full invoice price and Company pays a stated interest rate to the financial institution, ranging from 5.6% to 8.0%, with the terms of the financing ranging from 12 to 48 months. There are no covenants with the loans and the carrying value of the equipment that is pledged as security against these loans is $8,340,000.
Page | 14
PROTECH HOME MEDICAL CORP.
NOTES TO THE CONDENSED CONSOLIDATED INTERIM FINANCIAL STATEMENTS
(UNAUDITED)
(Tabular dollar amounts expressed in thousands of US Dollars, except per share amounts)
Following is the activity in equipment loans for the three months ended December 31, 2020 and 2019:
Three months
ended December 31, 2020 |
Three months
ended December 31, 2019 |
|||||||
Beginning Balance | $ | 4,750 | $ | 7,306 | ||||
Additions: | ||||||||
Acquisitions | - | 706 | ||||||
Operations | 1,887 | 2,363 | ||||||
Interest expense | 85 | 112 | ||||||
Repayments | (2,150 | ) | (3,312 | ) | ||||
Ending Balance | 4,572 | 7,175 | ||||||
Current portion | (4,290 | ) | (6,345 | ) | ||||
Long-term portion, due in 2022 | $ | 282 | $ | 830 |
Leases Liabilities
The Company enters in lease for real estate and vehicles. Real estate leases are valued at the net present value of the future lease payments at an 8% incremental borrowing rate. Vehicle leases are recorded at rate implicit in the lease based on the current value and the estimated residual value of the vehicle, equating to rates ranging from 1.7% to 10.4%.
Below is the movement in lease liabilities for the three months ended December 31, 2020:
Vehicles | Real estate | Total | ||||||||||
Balance, September 30, 2020 | $ | 1,627 | $ | 3,639 | $ | 5,266 | ||||||
Additions during the period: | ||||||||||||
Acquisition | 343 | 343 | ||||||||||
Operations | 157 | 902 | 1,059 | |||||||||
Interest | 35 | 91 | 126 | |||||||||
Repayments | (170 | ) | (605 | ) | (775 | ) | ||||||
Balance, December 31, 2020 | $ | 1,649 | $ | 4,370 | $ | 6,019 |
Future payments pursuant to lease liabilities are as follows:
As at
December 31, 2020 |
As at
September 30, 2020 |
|||||||
Less than 1 year | $ | 2,491 | $ | 2,394 | ||||
Between 1 and 5 years | 4,332 | 3,497 | ||||||
More than five years | - | 70 | ||||||
Total | $ | 6,823 | $ | 5,961 |
Below is the reconciliation of total future minimum lease payments and its present value at the end of the reporting period:
As at
December 31, 2020 |
As at
September 30, 2020 |
|||||||
Gross lease payments | $ | 6,823 | $ | 5,961 | ||||
Less: finance charges | (804 | ) | (695 | ) | ||||
Net lease liabilities | $ | 6,019 | $ | 5,266 |
Revolving Credit Facility
In September 2020, the Company entered a $20,000,000 asset-based revolving credit facility with a US bank. The facility matures in September 2024 and bears interest at floating rate of LIBOR plus 2.0% to 2.5%, with a LIBOR floor of 0.5% and has an unused fee of 0.3%. Interest expense for the facility for the three months ended December 31, 2020 totaled $13,000 and primarily related to the unused fee. The facility is subject to a borrowing base based on a percentage of eligible accounts receivable and customer rental contracts, which totaled $13,770,000 as of December 31, 2020. Issuance costs of $561,000 were incurred, are recorded in “other long-term assets” on the consolidated balance sheet and are being amortized on a straight-line over the four-year term of the facility for a total of $34,000 for the three months ended December 31, 2020.
Page | 15
PROTECH HOME MEDICAL CORP.
NOTES TO THE CONDENSED CONSOLIDATED INTERIM FINANCIAL STATEMENTS
(UNAUDITED)
(Tabular dollar amounts expressed in thousands of US Dollars, except per share amounts)
13. | Share capital |
The Company considers its capital to be shareholders’ equity, which is comprised of share capital, contributed surplus, accumulated other comprehensive income (loss), and accumulated deficit, in the amount of $28,978,000 at December 31, 2020.
The Company raises capital, as necessary, to meet its needs and take advantage of perceived opportunities and, therefore, does not have a numeric target for its capital structure. Funds are primarily secured through equity, and long-term debt, including debentures, equipment loans and leases.
Management reviews its capital management approach on an ongoing basis and believes that this approach, given the relative size of the Company, is reasonable. The Company invests all capital that is surplus to its immediate operational needs in short-term, liquid and highly rated financial instruments, such as cash, and short-term guarantee deposits, held with major Canadian and US financial institutions.
Authorized share capital
The Company’s authorized share capital consists of an unlimited number of common shares and an unlimited number of preferred shares issuable in series. The preferred shares issuable in series will have the rights, privileges, restrictions, and conditions assigned to the series upon the Board of Directors approving their issuance.
Issued share capital
The Company has only one class of common stock outstanding. Effective December 31, 2018, the Company consolidated its issued and outstanding common shares based on one post-consolidation common share for every five pre-consolidation common shares.
Common shares are classified as equity. Incremental costs directly attributable to the issuance of common shares are recognized as a reduction of equity, net of any tax effects. Accumulated other comprehensive income represents items such as cumulative, foreign currency translation adjustments, the change in equity arising from unrealized gains and losses from financial instruments designated as available-for-sale, and changes in fair value of derivatives designated as cash flow hedges and is presented as a separate component of shareholders’ equity on the Consolidated Statements of Financial Position. The Company does not currently participate in hedging activities.
Bought deals and private placements
On June 29, 2020, the Company completed a bought deal public offering, a concurrent brokered private placement, and a non-brokered private placement to the Company’s Chief Executive Officer and a director of the Company, for a total of 27,678,826 units, respectively. Each unit issued was issued at a price of C$1.15 for total gross proceeds of C$31,831,000 and consisted of one common share and one-half of one common share purchase warrant (each whole warrant, a “Warrant”) for a total of 13,839,12. Each Warrant will be exercisable to acquire one common share for a period of 12 months following the closing at an exercise price of C$1.60 per share.
Warrant activity for the three months ended December 31, 2020 is provided below:
Number (000s) |
Weighted
average exercise price |
|||||||
Balance, September 30, 2020 | 13,839 | C$ | 1.60 | |||||
Exercised | (115 | ) | 1.60 | |||||
Balance, December 31, 2020 | 13,724 | C$ | 1.60 |
Page | 16
PROTECH HOME MEDICAL CORP.
NOTES TO THE CONDENSED CONSOLIDATED INTERIM FINANCIAL STATEMENTS
(UNAUDITED)
(Tabular dollar amounts expressed in thousands of US Dollars, except per share amounts)
Issuance costs of $2,546,000 in cash, including underwriters’ commission of $1,692,000, were incurred. The Company issued compensation options to the underwriter for 1,471,305 shares at the issue price of C$1.15 for a period of two years from the closing of the offering. The fair value of the options has been valued at $0.31 for a total of $456,000.
Activity for the June 2020 compensation options for the three months ended December 31, 2020 is as follows:
Number
(000s) |
Weighted
average exercise price |
|||||||
Balance, September 30, 2020 | 1,412 | C$ | 1.15 | |||||
Issued | - | - | ||||||
Balance, December 31, 2020 | 1,412 | C$ | 1.15 |
Stock options and grants
The Company has a stock option plan, which it uses for grants to directors, officers, employees, and consultants. Options granted under the plan are non-assignable and may be granted for a term not exceeding ten years. Stock options generally vest either immediately or quarterly over a two-year period.
A summary of stock options is provided below:
Number of
options(000’s) |
Weighted
average exercise price |
|||||||
Balance, September 30, 2020 | 10,506 | C$ | 0.48 | |||||
Granted | 200 | 1.54 | ||||||
Exercised | (59 | ) | 0.99 | |||||
Expired | (113 | ) | 0.93 | |||||
Balance, December 31, 2020 | 10,534 | C$ | 0.48 |
At December 31, 2020, the Company had 10,251,000 vested stock options with a weighted average exercise price of C$0.47.
The Company accounts for stock-based compensation, including stock options and stock grants, using the fair value method as prescribed by IFRS 2. Under this method, the fair value of stock options at the date of grant is expensed over the vesting period and the offsetting credit is recorded as an increase in contributed surplus.
For the three months ended December 31, 2020 and 2019, the Company recorded stock-based compensation expense of $15,000 and $32,000, respectively.
The fair value of the stock options has been charged to the statement of loss and comprehensive loss and credited to contributed surplus over the proper vesting period, using the Black-Scholes option pricing model calculated using the following assumptions:
Three months
ended December 31, 2020 |
|||
Share price at grant date | $1.54 | ||
Risk-free interest rate | 0.36% | ||
Expected volatility | 64% | ||
Expected life of option | 5 years | ||
Expected dividend yield | Nil |
Page | 17
PROTECH HOME MEDICAL CORP.
NOTES TO THE CONDENSED CONSOLIDATED INTERIM FINANCIAL STATEMENTS
(UNAUDITED)
(Tabular dollar amounts expressed in thousands of US Dollars, except per share amounts)
14. | Contingencies |
The Company has been in litigation with Lightwater Long Short Fund (“Lightwater”) during the years ended September 30, 2020 and 2019. The litigation is due to Lightwater claiming damages for matters related to subscription agreements in a prior private placement. Management and legal believe that this lawsuit is without merit and is unpredictable. It is uncertain currently to determine the outcome of this lawsuit or our potential liability, if any.
A second matter has reached a settlement in principle during the year ended September 30, 2020 of $475,000, but has not been formally finalized, and is recorded in accrued liabilities on the balance sheet.
From time to time, the Company is involved in various legal proceedings arising from the ordinary course of business. None of the matters in which the Company is currently involved, either individually, or in the aggregate, is expected to have a material adverse effect on the Company’s consolidated financial position, results of operations, or cash flows.
15. | Operating expenses |
Three months
ended December 31, 2020 |
Three months
ended December 31, 2019 |
|||||||
Payroll and employee benefits | $ | 6,439 | $ | 5,818 | ||||
Facilities related expenses | 491 | 624 | ||||||
Bad debt expense | 2,079 | 1,503 | ||||||
Billing | 716 | 329 | ||||||
Professional fees | 440 | 289 | ||||||
Marketing and advertising | 128 | 166 | ||||||
Other | 1,236 | 967 | ||||||
Total operating expenses | $ | 11,529 | $ | 9,696 |
16. | Income (loss) per share |
Income (loss) per common share is calculated using the weighted average number of common shares outstanding during the period. Diluted income (loss) per share amounts are calculated giving effect to the potential dilution that would occur from the incremental shares issued if in-the-money securities or other contracts to issue common shares were exercised or converted to common shares by assuming the proceeds received from the exercise of stock options and warrants are used to purchase common shares at the prevailing market price. For periods with a net loss, the potential dilutive shares were excluded because their effect is anti-dilutive.
The following reflects the earnings and share data used in the basic and diluted income (loss) per share computations:
Three months
ended December 31, 2020 |
Three months
ended December 31, 2019 |
|||||||
Net income (loss) for continuing operations | $ | 229 | $ | (1,328 | ) | |||
Basic weighted average number of shares | 112,507 | 83,529 | ||||||
Diluted weighted average number of shares | 121,863 | 83,529 | ||||||
Basic – continuing operations | $ | 0.00 | $ | (0.02 | ) | |||
Diluted – continuing operations | 0.00 | (0.02 | ) |
The effect of instruments exercisable or convertible to common shares for the quarter ended December 31, 2019 were excluded from the calculation of diluted loss per share because their effect is anti-dilutive.
Page | 18
PROTECH HOME MEDICAL CORP.
NOTES TO THE CONDENSED CONSOLIDATED INTERIM FINANCIAL STATEMENTS
(UNAUDITED)
(Tabular dollar amounts expressed in thousands of US Dollars, except per share amounts)
17. | Related party transactions |
The Company has six market rate leases for office, warehouse, and retail space with a rental Company affiliated with the Company’s Chief Executive Officer, the majority of which were entered into in 2015. The leases have a combined area of 74,520 square feet. Lease payments under these leases are approximately $68,000 per month, plus taxes, utilities and maintenance.
Expense for Board of Directors’ fees was $45,000 and $43,000 or the three months ended December 31, 2020 and 2019, respectively. Stock-based compensation for the Board of Directors was $4,000 for the three months ended December 31, 2020.
Key management personnel also participate in the Company’s share option program (see Note 8). The Company paid or accrued compensation to key management personnel the following:
Three months
ended December 31, 2020 |
Three months
ended December 31, 2019 |
|||||||
Salaries and Benefits | $ | 227 | $ | 196 | ||||
Stock-based compensation | - | - | ||||||
Total | $ | 227 | $ | 196 |
18. | Discontinued Operations |
On July 29, 2019, the Company sold the assets of Patient Home Monitoring, Inc. The consolidated financial statements and the notes reflect the Patient Home Monitoring, Inc. as discontinued operations. During the year ended September 30, 2020, there were ongoing litigation matters involving Patient Home Monitoring, Inc. that resulted in loss from discontinued operations, but none of that expense was reflected in the three months ended December 31, 2019.
19. | Subsequent Events |
Mayhugh Drugs, Inc., dba Mayhugh’s Medical
Effective February 1, 2020, the Company, through PHM Logistics Corporation, entered into a purchase agreement to acquire Mayhugh Drugs, Inc., (“Mayhugh”) a Florida company. The purchase price was $1,190,000, of which $515,000 was paid in cash at closing, with $575,000 of holdbacks payable on the six-month and twelve-month anniversaries of the closing.
Pro forma three-month Mayhugh revenues and net income had the acquisition occurred October 1, 2020 would have been $1,389,000 and $354,000, respectively.
Page | 19
Exhibit 99.88
FORM 52-109FV2
CERTIFICATION OF INTERIM FILINGS
VENTURE ISSUER BASIC CERTIFICATE
I, Gregory Crawford, as Chief Executive Officer of Protech Home Medical Corp., certify the following:
1. Review: I have reviewed the interim financial report and interim MD&A (together, the “interim filings”) of Protech Home Medical Corp. (the “issuer”) for the interim period ended December 31, 2020.
2. No misrepresentations: Based on my knowledge, having exercised reasonable diligence, the interim filings do not contain any untrue statement of a material fact or omit to state a material fact required to be stated or that is necessary to make a statement not misleading in light of the circumstances under which it was made, with respect to the period covered by the interim filings.
3. Fair presentation: Based on my knowledge, having exercised reasonable diligence, the interim financial report together with the other financial information included in the interim filings fairly present in all material respects the financial condition, financial performance and cash flows of the issuer, as of the date of and for the periods presented in the interim filings.
Dated: March 1, 2021 | |
(signed) “Gregory Crawford” | |
Gregory
Crawford
Chief Executive Officer |
NOTE TO READER
In contrast to the certificate required for non-venture issuers under National Instrument 52-109 Certification of Disclosure in Issuers’ Annual and Interim Filings (NI 52-109), this Venture Issuer Basic Certificate does not include representations relating to the establishment and maintenance of disclosure controls and procedures (DC&P) and internal control over financial reporting (ICFR), as defined in NI 52-109. In particular, the certifying officers filing this certificate are not making any representations relating to the establishment and maintenance of
i. controls and other procedures designed to provide reasonable assurance that information required to be disclosed by the issuer in its annual filings, interim filings or other reports filed or submitted under securities legislation is recorded, processed, summarized and reported within the time periods specified in securities legislation; and
ii. a process to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with the issuer’s GAAP.
The issuer’s certifying officers are responsible for ensuring that processes are in place to provide them with sufficient knowledge to support the representations they are making in this certificate. Investors should be aware that inherent limitations on the ability of certifying officers of a venture issuer to design and implement on a cost effective basis DC&P and ICFR as defined in NI 52-109 may result in additional risks to the quality, reliability, transparency and timeliness of interim and annual filings and other reports provided under securities legislation.
|
Exhibit 99.89
FORM 52-109FV2
CERTIFICATION OF INTERIM FILINGS
VENTURE ISSUER BASIC CERTIFICATE
I, Hardik Mehta, as Chief Financial Officer of Protech Home Medical Corp., certify the following:
1. Review: I have reviewed the interim financial report and interim MD&A (together, the “interim filings”) of Protech Home Medical Corp. (the “issuer”) for the interim period ended December 31, 2020.
2. No misrepresentations: Based on my knowledge, having exercised reasonable diligence, the interim filings do not contain any untrue statement of a material fact or omit to state a material fact required to be stated or that is necessary to make a statement not misleading in light of the circumstances under which it was made, with respect to the period covered by the interim filings.
3. Fair presentation: Based on my knowledge, having exercised reasonable diligence, the interim financial report together with the other financial information included in the interim filings fairly present in all material respects the financial condition, financial performance and cash flows of the issuer, as of the date of and for the periods presented in the interim filings.
Dated: March 1, 2021 | |
(signed) “Hardik Mehta” | |
Hardik
Mehta
Chief Financial Officer |
NOTE TO READER
In contrast to the certificate required for non-venture issuers under National Instrument 52-109 Certification of Disclosure in Issuers’ Annual and Interim Filings (NI 52-109), this Venture Issuer Basic Certificate does not include representations relating to the establishment and maintenance of disclosure controls and procedures (DC&P) and internal control over financial reporting (ICFR), as defined in NI 52-109. In particular, the certifying officers filing this certificate are not making any representations relating to the establishment and maintenance of
i. controls and other procedures designed to provide reasonable assurance that information required to be disclosed by the issuer in its annual filings, interim filings or other reports filed or submitted under securities legislation is recorded, processed, summarized and reported within the time periods specified in securities legislation; and
ii. a process to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with the issuer’s GAAP.
The issuer’s certifying officers are responsible for ensuring that processes are in place to provide them with sufficient knowledge to support the representations they are making in this certificate. Investors should be aware that inherent limitations on the ability of certifying officers of a venture issuer to design and implement on a cost effective basis DC&P and ICFR as defined in NI 52-109 may result in additional risks to the quality, reliability, transparency and timeliness of interim and annual filings and other reports provided under securities legislation.
|
Exhibit 99.90
PROTECH CONTINUES RAPID EXPANSION WITH
OPENING OF TWO NEW LOCATIONS
FOCUSED ON RESPIRATORY THERAPY PRODUCTS AND SERVICES
ACCELERATING SCALE BY EXPANDING GEOGRAPHICAL
OPERATING FOOTPRINT WITH NEW
LOCATION IN FLORIDA AND NEW HAMPSHIRE
Cincinnati, Ohio – March 16, 2021 – Protech Home Medical Corp. (“Protech” or the “Company”) (TSXV:PTQ; OTCQX:PTQQF), a U.S. based leader in the home medical equipment industry, focused on end-to-end respiratory care, is pleased to announce that it has accelerated its organic growth initiatives with the opening of a new location in Daytona Beach, Florida and Concord, New Hampshire.
Location Details
The Company has opened a new location in Daytona Beach, Florida, which is expected to boost its ongoing early expansion efforts in the State. The new location in Daytona Beach will have a heavily respiratory weighted product mix which is expected to help the Company reach surrounding areas at an accelerated pace, as well as cut down on logistical costs. On February 2, 2021, the Company acquired Mayhugh’s Medical Equipment (“MME”) in Jacksonville, Florida to begin building a foundation poised for growth in the new State. MME added 10,000 active patients to Protech’s patient population, and the Company is well into the integration process. The Company’s plan continues to be to utilize its existing highly scalable infrastructure to grow the patient base and anticipates adding additional locations either through organic opportunities such as Daytona Beach or through inorganic opportunities that may present themselves.
The Company has also opened a new location in Concord, New Hampshire. Concord is the Capital of New Hampshire and allows Protech to further penetrate the State and surrounding regions. The location will have a heavily weighted respiratory product mix and leverage the infrastructure on the ground in New Hampshire to quickly scale.
Protech expects to derive strong revenue synergies from the initiative of opening new locations organically and will continue to implement its high touch service model in both new locations.
The Company is pleased to share the following current financial and operating metrics. Please note these metrics do not include potential future acquisitions or ongoing organic growth initiatives:
· | Run-Rate Revenue of USD$100-$105 million |
· | 120,000 current active patients |
· | 17,000 unique referrals |
· | 51 locations across 11 U.S. States |
Management Commentary
“With the addition of new locations in Florida and New Hampshire we continue our aggressive path of scaling our business. We believe coupling organic initiatives such as strategically opening new locations, combined with our robust acquisition plans has significantly widened our aperture of opportunity for our business,” said Greg Crawford, Chairman and CEO of Protech. “Our patient centric model leveraging our interconnected healthcare platform is providing us much opportunity to gain market share and this is just the beginning for us. We have additional plans to increase our footprint in current markets as well as adding new markets in our pursuit of becoming a leading national provider of respiratory therapy products and services in the home. Moreover, we must ensure our brand aligns with our mission, ensuring we are building strong brand equity to further accelerate organic growth opportunities, and we expect to have more to share on this front in the near future. Finally, we are incredibly excited about our deep pipeline of potential acquisition targets, which we expect to be very busy in the near term and look forward to updating shareholders when appropriate.”
ABOUT PROTECH HOME MEDICAL CORP.
The Company provides in-home monitoring and disease management services including end-to-end respiratory solutions for patients in the United States healthcare market. It seeks to continue to expand its offerings to include the management of several chronic disease states focusing on patients with heart or pulmonary disease, sleep disorders, reduced mobility and other chronic health conditions. The primary business objective of the Company is to create shareholder value by offering a broader range of services to patients in need of in-home monitoring and chronic disease management. The Company’s organic growth strategy is to increase annual revenue per patient by offering multiple services to the same patient, consolidating the patient’s services and making life easier for the patient.
Forward-Looking Statements
Certain statements contained in this press release constitute "forward-looking information" as such term is defined in applicable Canadian securities legislation. The words "may", "would", "could", "should", "potential", "will", "seek", "intend", "plan", "anticipate", "believe", "estimate", "expect" and similar expressions as they relate to the Company, including: the Company expecting its new Daytona Beach location to boost its ongoing early expansion efforts in Florida and helping the Company reach surrounding areas at an accelerated pace, as well as cut down on logistical costs; the Company anticipating to add additional locations either through organic opportunities or through inorganic opportunities; the Company expecting to derive strong revenue synergies from new locations organically; the Company’s plans to increase its footprint in current markets as well as adding new markets; the Company expecting to have further news on organic growth opportunities in the near future; and the Company expecting to be busy with new acquisitions in the near term; are intended to identify forward-looking information. All statements other than statements of historical fact may be forward-looking information. Such statements reflect the Company's current views and intentions with respect to future events, and current information available to the Company, and are subject to certain risks, uncertainties and assumptions, including: the Company successfully identified, negotiating and completing additional acquisitions, including accretive acquisitions. Many factors could cause the actual results, performance or achievements that may be expressed or implied by such forward-looking information to vary from those described herein should one or more of these risks or uncertainties materialize. Examples of such risk factors include, without limitation: credit; market (including equity, commodity, foreign exchange and interest rate); liquidity; operational (including technology and infrastructure); reputational; insurance; strategic; regulatory; legal; environmental; capital adequacy; the general business and economic conditions in the regions in which the Company operates; the ability of the Company to execute on key priorities, including the successful completion of acquisitions, business retention, and strategic plans and to attract, develop and retain key executives; difficulty integrating newly acquired businesses; the ability to implement business strategies and pursue business opportunities; low profit market segments; disruptions in or attacks (including cyber-attacks) on the Company's information technology, internet, network access or other voice or data communications systems or services; the evolution of various types of fraud or other criminal behavior to which the Company is exposed; the failure of third parties to comply with their obligations to the Company or its affiliates; the impact of new and changes to, or application of, current laws and regulations; decline of reimbursement rates; dependence on few payors; possible new drug discoveries; a novel business model; dependence on key suppliers; granting of permits and licenses in a highly regulated business; the overall difficult litigation environment, including in the U.S.; increased competition; changes in foreign currency rates; increased funding costs and market volatility due to market illiquidity and competition for funding; the availability of funds and resources to pursue operations; critical accounting estimates and changes to accounting standards, policies, and methods used by the Company; the occurrence of natural and unnatural catastrophic events and claims resulting from such events; and risks related to COVID-19 including various recommendations, orders and measures of governmental authorities to try to limit the pandemic, including travel restrictions, border closures, non-essential business closures, quarantines, self-isolations, shelters-in-place and social distancing, disruptions to markets, economic activity, financing, supply chains and sales channels, and a deterioration of general economic conditions including a possible national or global recession; as well as those risk factors discussed or referred to in the Company’s disclosure documents filed with the securities regulatory authorities in certain provinces of Canada and available at www.sedar.com. Should any factor affect the Company in an unexpected manner, or should assumptions underlying the forward-looking information prove incorrect, the actual results or events may differ materially from the results or events predicted. Any such forward-looking information is expressly qualified in its entirety by this cautionary statement. Moreover, the Company does not assume responsibility for the accuracy or completeness of such forward-looking information. The forward-looking information included in this press release is made as of the date of this press release and the Company undertakes no obligation to publicly update or revise any forward-looking information, other than as required by applicable law.
Neither the TSX Venture Exchange nor its Regulation Services Provider (as that term is defined in the policies of the TSX Venture Exchange) accepts responsibility for the adequacy or accuracy of this release.
For further information please visit our website at www.protechhomemedical.com, or contact:
Cole Stevens
VP of Corporate Development
Protech Home Medical Corp.
859-300-6455
cole.stevens@myphm.com
Gregory Crawford
Chief Executive Officer
Protech Home Medical Corp.
859-300-6455
investorinfo@myphm.com
Exhibit 99.91
PROTECH HOME MEDICAL TO PARTICIPATE AT
THE SIDOTI SPRING INVESTOR CONFERENCE
ON MARCH 24-25
PROTECH’S SIDOTI WEBCASTED PRESENTATION TO BE HELD WEDNESDAY, MARCH 24
Cincinnati, Ohio – March 17, 2021 – Protech Home Medical Corp. (the “Company” or “Protech”) (TSXV:PTQ; OTCQX:PTQQF), a U.S. based leader in the home medical equipment industry, focused on end-to-end respiratory care, today announced that members of its management team will host a webcasted presentation and participate in 1x1 meetings at the upcoming Sidoti Spring 2021 Investor Conference on March 24-25, 2021.
Webcasted Presentation
Event: | Sidoti Spring 2021 Investor Conference |
Date: | Wednesday, March 24, 2021 |
Time: | 1:45 p.m. (ET) |
The live webcast of the Company’s presentation will be available by visiting the investors’ section of the Company’s website at www.protechhomemedical.com. The webcast will also be available for replay on the Company’s website following the event.
ABOUT PROTECH HOME MEDICAL
The Company provides in-home monitoring and disease management services including end-to-end respiratory solutions for patients in the United States healthcare market. It seeks to continue to expand its offerings to include the management of several chronic disease states focusing on patients with heart or pulmonary disease, sleep disorders, reduced mobility and other chronic health conditions. The primary business objective of the Company is to create shareholder value by offering a broader range of services to patients in need of in-home monitoring and chronic disease management. The Company’s organic growth strategy is to increase annual revenue per patient by offering multiple services to the same patient, consolidating the patient’s services and making life easier for the patient.
Neither the TSX Venture Exchange nor its Regulation Services Provider (as that term is defined in the policies of the TSX Venture Exchange) accepts responsibility for the adequacy or accuracy of this release.
For further information please visit our website at www.protechhomemedical.com, or contact:
Cole Stevens
VP of Corporate Development
Protech Home Medical Corp.
859-300-6455
cole.stevens@myphm.com
Gregory Crawford
Chief Executive Officer
Protech Home Medical Corp.
859-300-6455
investorinfo@myphm.com
Exhibit 99.92
PROTECH HOME MEDICAL CORP.
NOTICE OF ANNUAL & SPECIAL MEETING OF SHAREHOLDERS
NOTICE IS HEREBY GIVEN that the annual and special meeting (the “Meeting”) of shareholders of Protech Home Medical Corp. (the “Corporation”) will be held at 1019 Town Drive, Wilder, Kentucky on Monday, the 3rd day of May, 2021, at the hour of 11:00 a.m. (Eastern time) for the following purposes:
1. | to receive the audited financial statements of the Corporation for the years ended September 30, 2020 and 2019 and the auditors’ report thereon, and the financial statements of the Corporation for the three months ended December 31, 2020 and 2019; |
2. | to elect directors for the ensuing year; |
3. | to appoint auditors of the Corporation for the ensuing year and authorize the directors to fix their remuneration; |
4. | to consider and, if thought appropriate, to pass an ordinary resolution (the text of which is disclosed in Section 10(iv) of the Management Information Circular) to ratify, confirm and approve a security based compensation plan of the Corporation, as more particularly described in the Management Information Circular; and |
5. | to transact such further or other business as may properly come before the said meeting or any adjournment or adjournments thereof. |
This Notice of Meeting is accompanied by the Information Circular and either a form of proxy for registered shareholders or a voting instruction form for beneficial shareholders (collectively the “Meeting Materials”). A copy of the audited financial statements of the Corporation for the years ended September 30, 2020 and 2019 and the auditors’ report thereon, and the financial statements of the Corporation for the three months ended December 31, 2020 and 2019, and accompanying management discussion and analysis, will be available for review at the Meeting and are available to the public on the SEDAR website at www.sedar.com.
The record date for the determination of shareholders entitled to receive notice of and to vote at the Meeting is March 5, 2021 (the “Record Date”). Shareholders of the Corporation whose names have been entered on the register of shareholders at the close of business on the Record Date will be entitled to receive notice of and to vote at the Meeting.
A shareholder may attend the Meeting in person or may be represented by proxy. Shareholders who are unable to attend the Meeting or any adjournment thereof in person are requested to date, sign and return the accompanying form of proxy for use at the Meeting or any adjournment thereof. To be effective, the enclosed proxy must be mailed so as to reach or be deposited with Computershare Investor Services Inc., 100 University Avenue, 8th floor, Toronto, Ontario, M5J 2Y1, facsimile: (416) 263-9524, not later than forty-eight (48) hours (excluding Saturdays, Sundays and holidays) prior to the time set for the Meeting or any adjournment thereof.
As described in the notice and access notification mailed to shareholders of the Corporation, the Corporation will deliver the applicable Meeting Materials to shareholders by posting the Meeting Materials online under the Corporation’s profile at www.sedar.com and at http://phminvestorrelations.com/documents/investorrelation/circulars/2021.pdf, where they will remain for at least one full year thereafter. The use of this alternative means of delivery is more environmentally friendly as it will help reduce paper use and it will also significantly reduce the Corporation’s printing and mailing costs.
All shareholders will receive a notice and access notification, together with a proxy or voting instruction form, as applicable, which will contain information on how to obtain electronic and paper copies of the Meeting Materials in advance of the Meeting.
DATED this 25th day of March, 2021.
BY ORDER OF THE BOARD
(signed) “Gregory Crawford”
Chairman of the Board of Directors
Exhibit 99.93
Annual & Special Meeting of Shareholders
to be held on May 3, 2021
NOTICE OF MEETING
AND
MANAGEMENT INFORMATION CIRCULAR
PROTECH HOME MEDICAL CORP.
NOTICE OF ANNUAL & SPECIAL MEETING OF SHAREHOLDERS
NOTICE IS HEREBY GIVEN that the annual and special meeting (the “Meeting”) of shareholders of Protech Home Medical Corp. (the “Corporation”) will be held at 1019 Town Drive, Wilder, Kentucky on Monday, the 3rd day of May, 2021, at the hour of 11:00 a.m. (Eastern time) for the following purposes:
1. | to receive the audited financial statements of the Corporation for the years ended September 30, 2020 and 2019 and the auditors’ report thereon, and the financial statements of the Corporation for the three months ended December 31, 2020 and 2019; |
2. | to elect directors for the ensuing year; |
3. | to appoint auditors of the Corporation for the ensuing year and authorize the directors to fix their remuneration; |
4. | to consider and, if thought appropriate, to pass an ordinary resolution (the text of which is disclosed in Section 10(iv) of the Management Information Circular) to ratify, confirm and approve a security based compensation plan of the Corporation, as more particularly described in the Management Information Circular; and |
5. | to transact such further or other business as may properly come before the said meeting or any adjournment or adjournments thereof. |
This Notice of Meeting is accompanied by the Information Circular and either a form of proxy for registered shareholders or a voting instruction form for beneficial shareholders (collectively the “Meeting Materials”). A copy of the audited financial statements of the Corporation for the years ended September 30, 2020 and 2019 and the auditors’ report thereon, and the financial statements of the Corporation for the three months ended December 31, 2020 and 2019, and accompanying management discussion and analysis, will be available for review at the Meeting and are available to the public on the SEDAR website at www.sedar.com.
The record date for the determination of shareholders entitled to receive notice of and to vote at the Meeting is March 5, 2021 (the “Record Date”). Shareholders of the Corporation whose names have been entered on the register of shareholders at the close of business on the Record Date will be entitled to receive notice of and to vote at the Meeting.
A shareholder may attend the Meeting in person or may be represented by proxy. Shareholders who are unable to attend the Meeting or any adjournment thereof in person are requested to date, sign and return the accompanying form of proxy for use at the Meeting or any adjournment thereof. To be effective, the enclosed proxy must be mailed so as to reach or be deposited with Computershare Investor Services Inc., 100 University Avenue, 8th floor, Toronto, Ontario, M5J 2Y1, facsimile: (416) 263-9524, not later than forty-eight (48) hours (excluding Saturdays, Sundays and holidays) prior to the time set for the Meeting or any adjournment thereof.
As described in the notice and access notification mailed to shareholders of the Corporation, the Corporation will deliver the applicable Meeting Materials to shareholders by posting the Meeting Materials online under the Corporation’s profile at www.sedar.com and at http://phminvestorrelations.com/documents/investorrelation/circulars/2021.pdf, where they will remain for at least one full year thereafter. The use of this alternative means of delivery is more environmentally friendly as it will help reduce paper use and it will also significantly reduce the Corporation’s printing and mailing costs.
All shareholders will receive a notice and access notification, together with a proxy or voting instruction form, as applicable, which will contain information on how to obtain electronic and paper copies of the Meeting Materials in advance of the Meeting.
DATED this 25th day of March, 2021.
BY ORDER OF THE BOARD
(signed) “Gregory Crawford”
Chairman of the Board of Directors
INFORMATION CIRCULAR
FOR THE ANNUAL & SPECIAL MEETING OF SHAREHOLDERS OF
PROTECH
HOME MEDICAL CORP.
(this information is given as of March 25, 2021)
1. | SOLICITATION OF PROXIES |
This management information circular (the “Circular”) and accompanying form of proxy are furnished in connection with the solicitation, by management of Protech Home Medical Corp. (the “Corporation”), of proxies to be used at the annual general meeting of the holders (the “Shareholders”) of common shares (“Common Shares”) of the Corporation (the “Meeting”) referred to in the accompanying Notice of Annual & Special Meeting (the “Notice”) to be held on May 3, 2021, at the time and place and for the purposes set forth in the Notice. The solicitation will be made primarily by mail, subject to the use of Notice-and-Access Provisions (as defined below) in relation to delivery of the meeting materials, but proxies may also be solicited personally or by telephone by directors and/or officers of the Corporation, or by the Corporation’s transfer agent, Computershare Investor Services Inc. (“Computershare”), at nominal cost. The cost of solicitation by management will be borne by the Corporation. Pursuant to National Instrument 54-101 – Communication with Beneficial Owners of Securities of a Reporting Issuer (“NI 54-101”), arrangements have been made with clearing agencies, brokerage houses and other financial intermediaries to forward proxy solicitation material to the beneficial owners of the Common Shares. The cost of any such solicitation will be borne by the Corporation.
2. | NOTICE-AND-ACCESS |
The Corporation is sending out proxy-related materials to Shareholders using the notice-and-access provisions under National Instrument 51-102 – Continuous Disclosure Obligations (“NI 51-102”) and NI 54-101 (the “Notice-and-Access Provisions”). The Corporation anticipates that use of the Notice-and-Access Provisions will benefit the Corporation by reducing the postage and material costs associated with the printing and mailing of the proxy-related materials and will additionally reduce the environmental impact of such actions.
Shareholders will be provided with electronic access to the Notice and this Circular on the System for Electronic Document Analysis and Retrieval (“SEDAR”) at www.sedar.com and at http://phminvestorrelations.com/documents/investorrelation/circulars/2021.pdf.
Shareholders are reminded to review the Circular before voting. Shareholders will receive paper copies of a notice package (the “Notice Package”) via pre-paid mail containing a notice with information prescribed by the Notice-and-Access Provisions and a form of proxy (if you are a registered Shareholder) or a voting instruction form (if you are a non-registered Shareholder). The Corporation will not use procedures known as ‘stratification’ in relation to the use of Notice-and-Access Provisions. Stratification occurs when an issuer using Notice-and-Access Provisions sends a paper copy of the Circular to some securityholders with a Notice Package.
Shareholders with questions about notice-and-access can call Computershare toll-free at 1 (866) 964-0492 (Canada and the U.S. only) or direct at (514) 982-8714 (outside Canada and the U.S. and entering your 15-digit control number as indicated on your voting instruction form or proxy). Shareholders may obtain paper copies of the Circular free of charge by calling 1 (866) 466-5355 at any time up until and including the date of the Meeting, including any adjournment or postponement thereof. Any Shareholder wishing to obtain a paper copy of the meeting materials should submit their request no later than 12:00 p.m. (EST) on April 19, 2021 in order to receive paper copies of the meeting materials in time to vote before the Meeting. Under the Notice-and-Access Provisions, meeting materials will be available for viewing on the Corporation’s website for one year from the date of posting.
3. | RECORD DATE |
Shareholders of record at the close of business on March 5, 2021 are entitled to receive notice of and attend the Meeting in person or by proxy and are entitled to one vote for each Common Share registered in the name of such Shareholder in respect of each matter to be voted upon at the Meeting.
4. | APPOINTMENT OF PROXIES |
The persons named in the enclosed form of proxy are directors and/or officers of the Corporation. Each Shareholder submitting a proxy has the right to appoint a person or company (who need not be a Shareholder), other than the persons named in the enclosed form of proxy, to represent such Shareholder at the Meeting or any adjournment or postponement thereof. Such right may be exercised by inserting the name of such representative in the blank space provided in the enclosed form of proxy. All proxies must be executed by the Shareholder or his or her attorney duly authorized in writing or, if the Shareholder is a corporation, by an officer or attorney thereof duly authorized.
- 1 -
A proxy will not be valid for the Meeting or any adjournment or postponement thereof unless it is completed and delivered to Computershare no later than 11:00 a.m. (EST) on April 29, 2021 (or, if the Meeting is adjourned or postponed, 48 hours (Saturdays, Sundays and holidays excepted) prior to the time of holding the Meeting) in accordance with the delivery instructions below or delivered to the chairman (the “Chairman”) of the board of directors of the Corporation (the “Board”) on the day of the Meeting, prior to the commencement of the Meeting or any adjournment or postponement thereof. The time limit for deposit of proxies may be waived or extended by the Chairman of the Meeting at his discretion, without notice.
A registered Shareholder may submit his/her/its proxy by mail, by telephone or over the internet in accordance with the instructions below. A non-registered Shareholder should follow the instructions included on the voting instruction form provided by his or her Intermediary (as defined below).
Voting Instructions for Registered Holders
A registered Shareholder may submit a proxy by (i) mailing a copy to Computershare Investor Services Inc., Attention: Proxy Department, 8th Floor, 100 University Avenue, Toronto, Ontario M5J 2Y1, (ii) telephone by entering the 15 digit control number at 1 (866) 732-8683 (Canada and the U.S. only) or (312) 588-4290 (outside Canada and the U.S.), or (iii) online by entering the 15 digit control number at www.investorvote.com.
5. | REVOCATION OF PROXIES |
Proxies given by Shareholders for use at the Meeting may be revoked at any time prior to their use. Subject to compliance with the requirements described in the following paragraph, the giving of a proxy will not affect the right of a Shareholder to attend, and vote in person at, the Meeting.
In addition to revocation in any other manner permitted by law, a proxy may be revoked by instrument in writing executed by the Shareholder or his/her attorney duly authorized in writing, or, if the Shareholder is a corporation, under its corporate seal by an officer or attorney thereof duly authorized and deposited with Computershare, in a manner provided above under “Proxy and Voting Information – Appointment of Proxies”, at any time up to and including 11:00 a.m. (EST) on April 29, 2021 (or, if the Meeting is adjourned or postponed, 48 hours (Saturdays, Sundays and holidays excepted) prior to the holding of the Meeting) or, with the Chairman at the Meeting on the day of such meeting or any adjournment or postponement thereof, and upon any such deposit, the proxy is revoked.
6. | NON-REGISTERED HOLDERS |
Only registered Shareholders, or the persons they appoint as their proxies, are permitted to attend and vote at the Meeting. However, in many cases, Common Shares beneficially owned by a non-registered Shareholder (a “Non-Registered Holder”) are registered either (i) in the name of an intermediary (each, an “Intermediary” and collectively, the “Intermediaries”) that the Non-Registered Holder deals with in respect of the Common Shares, such as, among others, banks, trust companies, securities dealers or brokers and trustees or administrators of self-administered registered savings plans, registered retirement income funds, registered education savings plans and similar plans, or (ii) in the name of a clearing agency (such as CDS Clearing and Depository Services Inc.) of which the Intermediary is a participant.
In accordance with the requirements of NI 54-101, the Corporation has distributed copies of the form of proxy and supplemental mailing card (collectively, the “Meeting Materials”) to the clearing agencies and Intermediaries for onward distribution to Non-Registered Holders.
Intermediaries are required to forward the Meeting Materials to Non-Registered Holders unless a Non-Registered Holder has waived the right to receive them. Intermediaries will generally use service companies (such as Broadridge Financial Solutions, Inc.) to forward the Meeting Materials to Non-Registered Holders. Generally, a Non-Registered Holder who has not waived the right to receive Meeting Materials will receive either a voting instruction form or, less frequently, a form of proxy. The purpose of these forms is to permit Non-Registered Holders to direct the voting of the Common Shares they beneficially own. Non-Registered Holders should follow the procedures set out below, depending on the type of form they receive:
(1) | Voting Instruction Form. In most cases, a Non-Registered Holder will receive, as part of the Meeting Materials, a voting instruction form. If the Non-Registered Holder does not wish to attend and vote at the Meeting in person (or have another person attend and vote on the Non-Registered Holder’s behalf), but wishes to direct the voting of the Common Shares they beneficially own, the voting instruction form must be submitted by mail, telephone or over the internet in accordance with the directions on the form. If a Non-Registered Holder wishes to attend and vote at the Meeting in person (or have another person attend and vote on the Non-Registered Holder’s behalf), the Non-Registered Holder must complete, sign and return the voting instruction form in accordance with the directions provided and a form of proxy giving the right to attend and vote will be forwarded to the Non-Registered Holder; or |
- 2 -
(2) | Form of Proxy. Less frequently, a Non-Registered Holder will receive, as part of the Meeting Materials, a form of proxy that has already been signed by the Intermediary (typically by facsimile, stamped signature) which is restricted as to the number of Common Shares beneficially owned by the Non-Registered Holder but which is otherwise uncompleted. If the Non-Registered Holder does not wish to attend and vote at the Meeting in person (or have another person attend and vote on the Non-Registered Holder’s behalf) but wishes to direct the voting of the Common Shares they beneficially own, the Non-Registered Holder must complete the form of proxy and submit it to Computershare as described above. If a Non-Registered Holder wishes to attend and vote at the Meeting in person (or have another person attend and vote on the Non-Registered Holder’s behalf), the Non-Registered Holder must strike out the persons named in the proxy and insert the Non-Registered Holder’s (or such other person’s) name in the blank space provided. |
In either case, Non-Registered Holders should carefully follow the instructions of their Intermediaries, including those regarding when and where the proxy or the voting instruction form is to be delivered.
A Non-Registered Holder may revoke a voting instruction form or a waiver of the right to receive Meeting Materials and to vote given to an Intermediary at any time by written notice to the Intermediary, except that an Intermediary is not required to act on a revocation of a voting instruction form or of a waiver of the right to receive materials and to vote that is not received by the Intermediary at least seven days prior to the Meeting.
A Non-Registered Holder may fall into two categories – those who object to their identity being made known to the issuers of the securities which they own (“Objecting Beneficial Owners”) and those who do not object to their identity being made known to the issuers of the securities which they own (“Non-Objecting Beneficial Owners”). Subject to the provisions of NI 54-101, issuers may request and obtain a list of their Non-Objecting Beneficial Owners from Intermediaries. Pursuant to NI 54-101, issuers may obtain and use the Non-Objecting Beneficial Owners list in connection with any matters relating to the affairs of the issuer, including the distribution of proxy-related materials directly to Non-Objecting Beneficial Owners. The Corporation is sending Meeting Materials directly to Non-Objecting Beneficial Owners; the Corporation uses and pays Intermediaries and agents to send the Meeting Materials.
In accordance with applicable securities law requirements, the Corporation has also distributed copies of the Meeting Materials to the clearing agencies and Intermediaries for distribution to Objecting Beneficial Owners. Intermediaries are required to forward the Meeting Materials to Objecting Beneficial Owners unless an Objecting Beneficial Owner has waived the right to receive them. Intermediaries often use service companies to forward the Meeting Materials to Objecting Beneficial Owners. However, the Corporation does not intend to pay for Intermediaries to deliver the proxy-related materials to Objecting Beneficial Owners. If the Corporation does not pay for an intermediary to deliver materials to Objecting Beneficial Owners, Objecting Beneficial Owners will not receive the materials unless their intermediary assumes the cost of delivery
These securityholder materials are being sent to both registered Shareholders and Non-Registered Holders utilizing the Notice-and-Access Provisions. If you are a Non-Registered Holder, and the Corporation or its agent sent these materials directly to you, your name, address and information about your holdings of securities, have been obtained in accordance with applicable securities regulatory requirements from the Intermediary holding securities on your behalf.
By choosing to send these materials to you directly utilizing the Notice-and-Access Provisions, the Corporation (and not the Intermediary holding securities on your behalf) has assumed responsibility for (i) delivering these materials to you, and (ii) executing your proper voting instructions. Please return your voting instruction form as specified in the request for voting instructions that was sent to you.
7. | EXERCISE OF DISCRETION BY PROXIES |
Common Shares represented by properly executed proxies in favour of the persons named in the enclosed form of proxy will be voted on any ballot that may be called for and, where the person whose proxy is solicited specifies a choice with respect to the matters identified in the proxy, the Common Shares will be voted or withheld from voting in accordance with the specifications so made. Where Shareholders have properly executed proxies in favour of the persons named in the enclosed form of proxy and have not specified in the form of proxy the manner in which the named proxies are required to vote the Common Shares represented thereby, such shares will be voted in favour of the passing of the matters set forth in the Notice. If a Shareholder appoints a representative other than the persons designated in the form of proxy, the Corporation assumes no responsibility as to whether the representative so appointed will attend the Meeting on the day thereof or any adjournment or postponement thereof.
- 3 -
The enclosed form of proxy confers discretionary authority with respect to amendments or variations to the matters identified in the Notice and with respect to other matters that may properly come before the Meeting. At the date hereof, the management of the Corporation and the directors of the Corporation know of no such amendments, variations or other matters to come before the Meeting. However, if any other matters which at present are not known to the management of the Corporation and the directors of the Corporation should properly come before the Meeting, the proxy will be voted on such matters in accordance with the best judgment of the named proxies
Unless otherwise indicated in this Circular and in the form of proxy and Notice attached hereto, Shareholders shall mean registered Shareholders.
8. | INTEREST OF CERTAIN PERSONS OR COMPANIES IN MATTERS TO BE ACTED UPON |
Except as described elsewhere in this Circular, management of the Corporation is not aware of any material interest, direct or indirect, by way of beneficial ownership of securities or otherwise, of (a) any director or executive officer of the Corporation, (b) any proposed nominee for election as a director of the Corporation, and (c) any associates or affiliates of any of the persons or companies listed in (a) and (b), in any matter to be acted on at the Meeting.
9. | VOTING SECURITIES AND PRINCIPAL HOLDERS |
As at the date hereof, the Corporation had 120,074,767 Common Shares outstanding, representing the Corporation's only securities with respect to which a voting right may be exercised at the Meeting. Each Common Share carries the right to one vote at the Meeting. A quorum for the transaction of business at the Meeting is two Shareholders, or one or more proxyholders representing two Shareholders, or one Shareholder and a proxyholder representing another Shareholder, holding or representing not less than five percent (5%) of the issued and outstanding Common Shares enjoying voting rights at the Meeting.
To the knowledge of the directors and senior officers of the Corporation as at the date hereof, based on information provided on the System for Disclosure by Insiders (SEDI) and on information filed by third parties on the System for Electronic Document Analysis and Retrieval (SEDAR), no person or corporation beneficially owned, directly or indirectly, or exercised control or discretion over, voting securities of the Corporation carrying more than 10% of the voting rights attached to any class of voting securities of the Corporation, other than the following:
Name | Number of Common Shares | Percentage of Common Shares | ||
Gregory Crawford(1) | 7,581,406 | 6.3%(2) |
Notes:
(1) | Of the 6,037,059 Common Shares, Mr. Crawford is the registered and beneficial holder of 4,742,624 Common Shares (and stock options exercisable for 2,324,000 Common Shares and warrants exercisable for 434,782 Common Shares), and exercises control and direction over 80,000 Common Shares held by his spouse. |
(2) | Calculated on partially diluted basis. |
10. | BUSINESS OF THE MEETING |
To the knowledge of the directors of the Corporation, the only matters to be brought before the Meeting are those set forth in the accompanying Notice of Meeting.
(i) | Financial Statements |
Pursuant to the Business Corporations Act (British Columbia) (the “BCBCA”), the directors of the Corporation will place before the shareholders at the Meeting the audited financial statements of the Corporation for the years ended September 30, 2020 and 2019 and the auditors’ report thereon, and the financial statements of the Corporation for the three months ended December 31, 2020 and 2019. Shareholder approval is not required in relation to the financial statements.
(ii) | Election of Directors |
The Board presently consists of four directors. All of the current directors have been directors since the dates indicated below and all will be standing for re-election. The Board recommends that shareholders vote FOR the election of the three nominees of management listed in the following table.
Each director will hold office until his re-election or replacement at the next annual meeting of the shareholders unless he resigns his duties or his office becomes vacant following his death, dismissal or any other cause prior to such meeting.
Unless otherwise instructed, proxies and voting instructions given pursuant to this solicitation by the management of the Corporation will be voted for the election of the proposed nominees. If any proposed nominee is unable to serve as a director, the individuals named in the enclosed form of proxy reserve the right to nominate and vote for another nominee in their discretion.
- 4 -
Advance Notice Provisions
The Corporation’s Articles provide for advance notice of nominations of directors of the Corporation which require that advance notice be provided to the Corporation in circumstances where nominations of persons for election to the Board are made by shareholders of the Corporation other than pursuant to: (i) a requisition of a meeting of shareholders made pursuant to the provisions of the BCBCA; or (ii) a shareholder proposal made pursuant to the provisions of the BCBCA. A copy of the Articles are available under the Corporation’s profile on SEDAR at www.sedar.com.
Nominees to the Board of Directors
Name and Residence | Position and Office |
Principal Occupation or Employment(1) |
Served as Director Since |
Number of Common
Shares
over which
|
Gregory Crawford(2) Fort Thomas, Kentucky |
President, Chief Executive Officer and Director |
President, Chief Executive Officer of the Corporation since December 21, 2017.
Chief Operating Officer of the Corporation from April 19, 2016 to December 21, 2017. |
December 21, 2017 | 7,581,406(3) |
Mark Greenberg(2) Cincinnati, Ohio |
Director |
Managing Partner of Silverstone Capital Advisors since March 2009.
|
December 21, 2017 | 1,802,390(4) |
Eugene Ewing(2) Fort Mitchell, Kentucky |
Director |
Managing Member, Deeper Water Consulting since May 2006.
Independent Director – Various Corporations |
August 1, 2018 | 478,333(5) |
Kevin Carter | Director |
Partner/Physician/Director of Providence Medical Group since June 2014.
Medical Director of the Kettering Health Network Sleep Disorder Centers since January 2016.
Medical Director at the Englewood Sleep Center since October 2020.
Veteran Affairs of Dayton physician since February 2020 |
December 7, 2020 | 200,000(5) |
Notes:
(1) | The information as to principal occupation, business or employment and shares beneficially owned or controlled is not within the knowledge of management of the Corporation and has been furnished by the respective individuals. |
(2) | Member of the Audit Committee. |
(3) | Of the 6,037,059 Common Shares, Mr. Crawford is the registered and beneficial holder of 4,742,624 Common Shares (and stock options exercisable for 2,324,000 Common Shares and warrants exercisable for 434,782 Common Shares), and exercises control and direction over 80,000 Common Shares held by his spouse. |
(4) | Of the 1,802,390 Common Shares, Mr. Greenberg is the registered and beneficial holder of 58,260 Common Shares (and stock options exercisable for 1,715,000 Common Shares and warrants exercisable for 29,130 Common Shares). |
(5) | Of the 478,333 Common Shares, Mr. Ewing is the beneficial holder of 278,333 Common Shares (and stock options exercisable for 200,000 Common Shares). |
(6) | Mr. Carter, who has not previously been elected to the present term of office by a vote of securityholders at a meeting, has not held any principal occupations, businesses or employment within the five preceding years other than as noted above. |
Corporate Cease Trade Orders or Bankruptcies
None of the proposed directors of the Corporation is, as at the date hereof, or has been, within the previous 10 years, a director, chief executive officer or chief financial officer of any company (including the Corporation) that, (i) was subject to an order that was issued while the proposed director was acting in the capacity as director, chief executive officer or chief financial officer, or (ii) was subject to an order that was issued after the proposed director ceased to be a director, chief executive officer or chief financial officer and which resulted from an event that occurred while that person was acting in the capacity as director, chief executive officer or chief financial officer.
None of the proposed directors of the Corporation is, as at the date hereof, or has been, within the previous 10 years, a director or executive officer of any company (including the Corporation) that, while that person was acting in that capacity, or within a year of that person ceasing to act in that capacity, became bankrupt, made a proposal under any legislation relating to bankruptcy or insolvency or was subject to or instituted any proceedings, arrangement or compromise with creditors or had a receiver, receiver manager or trustee appointed to hold its assets.
- 5 -
Penalties or Sanctions
None of the proposed directors of the Corporation has been subject to (a) any penalties or sanctions imposed by a court relating to securities legislation or by a securities regulatory authority or has entered into a settlement agreement with a securities regulatory authority; or (b) any other penalties or sanctions imposed by a court or regulatory body that would likely be considered important to a reasonable securityholder in deciding whether to vote for a proposed director.
Personal Bankruptcies
None of the proposed directors of the Corporation has, within the 10 years before the date hereof, become bankrupt, made a proposal under any legislation relating to bankruptcy or insolvency, or become subject to or instituted any proceedings, arrangement or compromise with creditors, or had a receiver, receiver manager or trustee appointed to hold the assets of the proposed director.
(iii) | Appointment of Auditor |
Unless otherwise instructed, the persons named in the enclosed proxy or voting instruction form intend to vote such proxy or voting instruction form in favour of the re-appointment of MNP LLP, of 300-111 Richmond Street West, Toronto, Ontario M5H 2G4, as auditors of the Corporation to hold office until the next annual meeting of shareholders and the authorization of the directors of the Corporation to fix their remuneration.
The directors of the Corporation recommend that shareholders vote in favour of the appointment of MNP LLP, and the authorization of the directors of the Corporation to fix their remuneration. To be adopted, this resolution is required to be passed by the affirmative vote of a majority of the votes cast at the Meeting.
(iv) | Equity Incentive Plan |
On March 25, 2021, the directors of the Corporation approved the 2021 Equity Incentive Plan of the Corporation (the “Omnibus Plan”) to be effective the date of the Meeting, or any adjournment or postponement thereof (the “Effective Date”), pursuant to which it is able to issue share-based long-term incentives. The Omnibus Plan is intended to replace the Corporation’s amended and restated fixed number stock option plan (and its predecessors) (the “2019 Option Plan”) and its restricted share unit and deferred share unit plan (the “2017 RSU/DSU Plan”, and together with the 2019 Option Plan, the “Predecessor Plans”). If the shareholders approve the Omnibus Plan, it will become effective on the Effective Date no further awards will be granted under the Predecessor Plans. If the shareholders do not approve the Omnibus Plan at the Meeting, the Corporation will continue to grant awards under our Predecessor Plans.
All directors, officers, employees and consultants of the Corporation and/or its affiliates (“Participants”) are eligible to receive awards under the Omnibus Plan, subject to the terms of the Omnibus Plan. Awards include Common Share purchase options (“Options”), stock appreciation rights (“Stock Appreciation Rights”), restricted share awards (“Restricted Share Awards”), Restricted Share Units (“RSUs”), performance shares (“Performance Shares”), performance units (“Performance Units”), cash-based awards (“Cash-Based Awards”) and other share-based awards (collectively, the “Awards”), under the Omnibus Plan. A copy of the Omnibus Plan is attached as Schedule “B” to this Circular.
The Corporation’s current compensation program, described elsewhere in this Circular (see “Executive Compensation”) provides total compensation for employees in various roles that is comprised of base salary (fixed cash amount), short-term performance incentives (variable cash bonuses) and lastly, long-term “at risk” equity-based incentives (stock options, RSUs and DSUs (defined below)) that align employees’ interests with those of shareholders. The use of equity-based compensation as part of a competitive total compensation package for employees in certain roles also allows the Corporation to offer lower base salaries, thereby lowering its fixed cash compensation costs. With a view to extending the cash resources that the Corporation has available, it is important for the Corporation to be prudent in the management of its fixed cash expenses across all areas of operations, including in the area of employee compensation.
Purpose of the Omnibus Plan
The Omnibus Plan serves several purposes for the Corporation. One purpose is to advance the interests of the Corporation by developing the interests of Participants in the growth and development of the Corporation by providing such persons with the opportunity to acquire a proprietary interest in the Corporation. All Participants are considered eligible to be selected to receive an Award under the Omnibus Plan. Another purpose is to attract and retain key talent and valuable personnel, who are necessary to the Corporation’s success and reputation, with a competitive compensation mechanism. Finally, the Omnibus Plan will align the interests of Participants with those of shareholders by devising a compensation mechanism which encourages the prudent maximization of distributions to shareholders and long-term growth.
- 6 -
With shareholder approval of the Omnibus Plan, the main components of the Corporation’s compensation program will be as follows: (i) base salary (fixed cash amount), (ii) short-term performance incentives (variable cash bonuses), and (iii) a broad range of long-term “at risk” equity-based incentives under the Omnibus Plan.
The Omnibus Plan is administered by the Board or, if applicable, a committee of the Board.
Omnibus Plan Maximum and Limits
If the Corporation’s shareholders approve the Omnibus Plan, no future awards or grants will be made under the 2019 Option Plan and the 2017 RSU/DSU Plan, and the Common Shares that have not been settled or awarded under those plans on the Effective Date shall be available for Awards and issuance under the Omnibus Plan.
For greater certainty, the maximum number of Common Shares available and reserved for issuance, at any time, under this Plan, together with any other security based compensation arrangements adopted by the Corporation, including the Predecessor Plans, shall not exceed twenty percent (20%) of the issued and outstanding Common Shares on the Effective Date. As of the date of this Circular, such 20% amount is 24,014,953 Common Shares, and in the event all of the convertible securities of the Corporation are exercised/converted after the date hereof and on or before the Effective Date, such 20% amount could be a maximum of 30,514,255 Common Shares. The maximum amount of the foregoing Common Shares that may be awarded under the Omnibus Plan as “Incentive Stock Options” (as defined in the Omnibus Plan), shall be equal to the number of Common Shares reserved for issuance under the Omnibus Plan, namely, 20% of the issued and outstanding Common Shares on the Effective Date. As of the date of this Circular, there were 5,656,682 Common Shares authorized for issuance, but unissued, under the Predecessor Plans and available for the future grant of awards under the Omnibus Plan.
Common Shares underlying outstanding Awards that for any reason expire or are terminated, forfeited or canceled shall again be available for issuance under the Omnibus Plan. Also, any Common Shares forfeited, cancelled or otherwise not issued for any reason under the awards pursuant to the existing 2019 Option Plan and 2017 RSU/DSU Plan, shall be available for grants under the Omnibus Plan. Any awards outstanding under the 2019 Option Plan or the 2017 RSU/DSU Plan shall remain subject to the terms of those awards and plans. Awards that by their terms are to be settled solely in cash shall not be counted against the maximum number of Common Shares available for the issuance of Awards under the Omnibus Plan.
The number of Common Shares issuable to insiders, at any time, under all security based compensation arrangements of the Corporation, may not exceed 10% of the Corporation’s issued and outstanding Common Shares; and the number of Common Shares issued to insiders within any one-year period, under all security based compensation arrangements of the Corporation, may not exceed 10% of the Corporation’s issued and outstanding Common Shares. The maximum aggregate number of Common Shares that are issuable pursuant to Awards issued or granted, as applicable, to any one Participant under the Omnibus Plan, together with all other share based compensation, granted or issued in any 12 month period to any one Participant must not exceed 5% of the Common Shares, calculated as at the date any Award is granted or issued to the Participant (unless the Company has obtained the requisite disinterested shareholder approval). The aggregate number of Options which may be granted to any one Participant that is a consultant of the Corporation in any 12 month period must not exceed 2% of the issued Common Shares of the Corporation calculated at the first such grant date. In addition, the aggregate number of Options granted to all persons retained to provide investor relations activities must not exceed 2% of the issued Common Shares of the Corporation in any 12 month period calculated at the first such grant date (and including any Participant that performs investor relations activities and/or whose role or duties primarily consist of investor relations activities) and any such Options granted to any person retained to provide investor relations activities must vest in a period of not less than 12 months from the date of grant of the Award and with no more than 25% of the Options vesting in any three month period notwithstanding any other provision of the Omnibus Plan.
The amount of Awards granted to a non-employee director, within a calendar year period, pursuant to the Omnibus Plan shall not exceed US$750,000 in value of the aggregate of Common Share and cash Awards. The Omnibus Plan does not otherwise provide for a maximum number of Common Shares which may be issued to an individual pursuant to the Omnibus Plan and any other share compensation arrangement (expressed as a percentage or otherwise).
Cessation of Service and Transferability
The Board may provide the circumstances in which Awards shall be exercised, vested, paid or forfeited in the event a Participant ceases to provide service to the Corporation or any affiliate prior to the end of a performance period or exercise or settlement of such Award.
- 7 -
Subject to limited exceptions in the Omnibus Plan for certain Awards, an Award may be assignable or transferable by a Participant only by will or by the laws of descent and distribution following the death of the Participant.
Adjustments and Change in Control
In the event of any stock dividend or extraordinary cash dividend, stock split, reverse stock split, recapitalization, combination, reclassification or similar change in the capital structure of the Corporation, appropriate adjustments shall be made in the number and class of Common Shares subject to the Omnibus Plan and to any outstanding Awards, and in the exercise price per share of any outstanding Awards.
In the event of a Change in Control (as such term is defined in the Omnibus Plan), the surviving, continuing, successor or purchasing entity or its parent may, without the consent of any Participant, either assume or continue outstanding awards or substitute substantially equivalent awards for its shares. If so determined by the board of directors of the Corporation or Board, as applicable, share-based Awards will be deemed assumed if, for each share subject to the award prior to the Change in Control, its holder is given the right to receive the same amount of consideration that a shareholder would receive as a result of the Change in Control. Any awards that are not assumed or continued in connection with a Change in Control or exercised or settled prior to the Change in Control will terminate effective as of the time of the Change in Control.
Subject to the restrictions of Section 409A of the United States Internal Revenue Code (the “Code”), the Board may provide for the acceleration of vesting or settlement of any or all outstanding awards upon such terms and to such extent as it determines. The vesting of all awards held by non-employee directors will be accelerated in full upon a Change in Control.
The Omnibus Plan also authorizes the Board in its discretion and without the consent of any Participant, to cancel each or any award denominated in shares upon a Change in Control in exchange for a payment to the Participant with respect each vested share (and each unvested share if so determined) subject to the cancelled award of an amount equal to the excess of the consideration to be paid per common share in the Change in Control transaction over the exercise or purchase price per share, if any, under the award.
Subject to the restrictions of Section 409A of the Code, the Board may provide for the acceleration of vesting or settlement of any or all outstanding awards in connection with a Change in Control upon such conditions, including termination of the Participant’s service prior to, upon, or following the Change in Control, and to such extent as the Board.
Amendment Provision
The Board may amend, suspend or terminate the Omnibus Plan at any time. However, without the approval of the Corporation’s shareholders, there shall be (a) no increase in the maximum aggregate number of Common Shares that may be issued under the Omnibus Plan, subject to certain exceptions as set out in the Omnibus Plan, (b) no change in the class of persons eligible to receive Awards, (c) the limits on the amount of Awards that may be granted to any one person or any category of Participant; (d) the method of determining the exercise price of Options; (e) the maximum term of Options; (f) the expiry and termination provisions applicable to Options; and (g) no other amendment of the Omnibus Plan that would require approval of the Corporation’s shareholders under any applicable law, including the rules of any stock exchange or quotation system upon which the Common Shares may then be listed or quoted. In addition, without the approval of the Corporation’s disinterested shareholders, (a) the exercise price of an Option shall not be reduced, and (b) the term of an Option held by an insider at the time of the proposed amendment shall not be extended. Notwithstanding the foregoing, the following types of amendments will not be subject to shareholder approval: (a) amendments to fix typographical errors; and (b) amendments to clarify existing provisions of the Omnibus Plan that do not have the effect of altering the scope, nature and intent of such provisions. No amendment, suspension or termination of the Omnibus Plan shall affect any then outstanding Award unless expressly provided by the Board . Except as provided by the next sentence, no amendment, suspension or termination of the Omnibus Plan may have a materially adverse effect on any then outstanding Award without the consent of the Participant. Notwithstanding any other provision of the Omnibus Plan or any Award agreement to the contrary, the Board may, in its sole and absolute discretion and without the consent of any Participant, amend the Plan or any Award agreement, to take effect retroactively or otherwise, as it deems necessary or advisable for the purpose of conforming the Plan or such Award agreement to any present or future applicable law, including, but not limited to, Section 409A of the Code.
Dividends
Any dividends or dividend equivalents payable in connection with a full value award will be subject to the same restrictions as the underlying award and will not be paid until and unless such award vests. Participants holding Restricted Share Awards will have the right to vote the Common Shares and to receive any dividends or other distributions paid in cash or Common Shares, subject to the same vesting conditions as the original Award. Participants have no rights to receive cash dividends with respect to Restricted Share Units until Common Shares are issued in settlement of such Awards. However, the Board may grant Restricted Share Units that entitle their holders to dividend equivalent rights, which are rights to receive cash or additional Restricted Share Units whose value is equal to any cash dividends the Corporation pays. Dividend equivalent rights will be subject to the same vesting conditions and settlement terms as the original Award. In its discretion, the Board may provide for a Participant awarded Performance Shares to receive dividend equivalent rights with respect to cash dividends paid on the Common Shares to the extent that the Performance Shares become vested. The Board may grant dividend equivalent rights with respect to other share-based Awards that will be subject to the same vesting conditions and settlement terms as the original Award.
- 8 -
Options
The Omnibus Plan will replace the Corporation’s existing 2019 Option Plan. Once the Omnibus Plan is approved, no further stock options will be granted under the 2019 Option Plan and all outstanding stock options will continue to be governed by the 2019 Option Plan, while new Options to be granted will be governed by the Omnibus Plan. Options under the Omnibus Plan include Nonstatutory Stock Options and Incentive Stock Options.
The exercise price for each Option shall be established in the discretion of the Board; provided, however, that (a) the exercise price per share shall be not less than the Fair Market Value (as defined in the Omnibus Plan) of a Common Share on the effective date of grant of the Option; and (b) no Incentive Stock Option granted to a Ten Percent Owner (as defined in the Omnibus Plan) shall have an exercise price per share less than one hundred ten percent (100%) of the Fair Market Value of a Common Share on the effective date of grant of the Option. With the approval of the Board, provided it is permitted pursuant to applicable law and rules and policies of the TSX Venture Exchange (the “TSXV”), a Participant may elect to exercise an Option, in whole or in part, on a ‘cashless exercise’ basis, without payment of the aggregate Option price due on such exercise by electing to receive Common Shares equal in value to the difference between the Option price and the Fair Market Value on the date of exercise, computed in accordance with the Omnibus Plan.
The term of each Option shall be fixed by the Board but shall not exceed 10 years from the date of grant thereof, subject to certain limited exceptions.
Unless the Board decides otherwise, Options granted under Omnibus Plan will expire at the earliest of: (i) the expiry date; (ii) one year after termination due to disability of the Participant or after the Participant’s death; (iii) in the case of a termination for cause, immediately upon such termination of service or act; and (v) 30 days after termination without cause or termination for any other reason.
Incentive Stock Options may only be granted to employees. To the extent Options designated as Incentive Stock Options become exercisable for the first time during any calendar year for Common Shares having an aggregate fair market value greater than US$100,000, the portion of such Options which exceeds such amount shall be treated as Nonstatutory Stock Options. Incentive Stock Options are subject to additional requirements and restrictions as provided in the Omnibus Plan and as required by the Code.
Stock Appreciation Rights
The Board may grant Stock Appreciation Rights either in tandem with a related option (a “Tandem SAR”) or independently of any option (a “Freestanding SAR”). A Tandem SAR requires the option holder to elect between the exercise of the underlying option for Common Shares or the surrender of the option and the exercise of the related Stock Appreciation Right. A Tandem SAR is exercisable only at the time and only to the extent that the related stock option is exercisable, while a Freestanding SAR is exercisable at such times or upon such events and subject to such terms, conditions, performance criteria or restrictions as specified by the Board. The exercise price of each Stock Appreciation Right may not be less than the Fair Market Value of a Common Share of the Corporation on the date of grant.
Upon the exercise of any Stock Appreciation Right, the Participant is entitled to receive an amount equal to the excess of the fair market value of the underlying Common Shares as to which the right is exercised over the aggregate exercise price for such shares. Payment of this amount upon the exercise of a Tandem SAR may be made only in Common Shares whose fair market value on the exercise date equals the payment amount. At the Board’s discretion, payment of this amount upon the exercise of a Freestanding SAR may be made in cash or Common Shares. The maximum term of any Stock Appreciation Right granted under the Omnibus Plan is ten years.
Stock Appreciation Rights are generally nontransferable by the Participant other than by will or by the laws of descent and distribution, and are generally exercisable during the Participant’s lifetime only by the participant. If permitted by the Board, a Tandem SAR related to a nonstatutory stock option and a Freestanding SAR may be assigned or transferred to certain family members or trusts for their benefit to the extent permitted by the Board. Other terms of Stock Appreciation Rights are generally similar to the terms of comparable Options.
- 9 -
Other Stock-Based Awards
Under the Omnibus Plan, the Board may grant other stock-based Awards that are denominated or payable in, valued in whole or in part by reference to, or otherwise related to, Common Shares, as deemed by the Board to be consistent with the purposes of the Omnibus Plan and the goals of the Corporation, including, without limitation, RSUs, Stock Appreciation Rights, and phantom awards. Stock Appreciation Rights are subject to the same requirements as Nonstatutory Options.
Other stock-based Awards may be settled in Common Shares, cash or a combination thereof.
Performance Shares and/or Performance Units (each, a “Performance Award”) may be granted by the Board in its sole discretion awarding cash or Common Shares (including Restricted Stock) or a combination thereof based upon the achievement of goals as determined by the Compensation Committee. Types of other stock-based Awards or Performance Awards include, without limitation, purchase rights, phantom stock, Stock Appreciation Rights, RSUs, performance units, Restricted Stock or Common Shares subject to performance goals, Common Shares awarded that are not subject to any restrictions or conditions, convertible or exchangeable debentures related to Common Shares, other rights convertible into Common Shares, Awards valued by reference to the value of Common Shares or the performance of the Corporation or a specified subsidiary, affiliate division or department, Awards based upon performance goals established by the Board and settlement in cancellation of rights of any person with a vested interest in any other plan, fund, program or arrangement that is or was sponsored, maintained or participated in by the Corporation or any subsidiary.
In its discretion, the Board may specify such criteria, periods or performance goals for vesting in the foregoing stock-based Awards or Performance Awards and/or payment thereof to Participants as it shall determine; and the extent to which such criteria, periods or goals have been met shall be determined by the Board. All terms and conditions of such stock-based Awards and Performance Awards shall be determined by the Board and set forth in the applicable Award agreement.
Restricted Share Awards
The Omnibus Plan, if approved, will provide the Board with additional equity-based compensation alternatives in the form of Restricted Share Awards. The Board may grant restricted share awards under the Omnibus Plan either in the form of a restricted share purchase right, giving a participant an immediate right to purchase Common Shares, or in the form of a restricted share bonus, in which Common Shares are issued in consideration for services to the Corporation rendered by the Participant. The Board determines the purchase price payable under Restricted Share Awards, which may be less than the then current Fair Market Value of the Common Shares. Restricted Share Awards may be subject to vesting conditions based on such service or performance criteria as the Board specifies, including the attainment of one or more performance goals. Common Shares acquired pursuant to a Restricted Share Award may not be transferred by the participant until vested. Unless otherwise provided by the Board, a Participant will forfeit any restricted shares as to which the vesting restrictions have not lapsed prior to the Participant’s termination of service. Participants holding restricted shares will have the right to vote the shares and to receive any dividends or other distributions paid in cash or shares, subject to the same vesting conditions as the original Award.
Restricted Share Units
The Board may grant Restricted Share Units under the Omnibus Plan, which represent rights to receive Common Shares on a future date determined in accordance with the Participant’s award agreement. No monetary payment is required for receipt of Restricted Share Units or the Common Shares issued in settlement of the award, the consideration for which is furnished in the form of the Participant’s services to the Corporation. The Board may grant Restricted Share Unit awards subject to the attainment of one or more performance goals similar to those described below in connection with Performance Awards, or may make the awards subject to vesting conditions similar to those applicable to restricted share awards. Restricted Share Units may not be transferred by the Participant. Unless otherwise provided by the Board, a Participant will forfeit any Restricted Share Units which have not vested prior to the Participant’s termination of service. Participants have no voting rights or rights to receive cash dividends with respect to Restricted Share Unit awards until Common Shares are issued in settlement of such awards. However, the Board may grant Restricted Share Units that entitle their holders to dividend equivalent rights, which are rights to receive cash or additional restricted share units whose value is equal to any cash dividends the Corporation pays. Dividend equivalent rights will be subject to the same vesting conditions and settlement terms as the original award.
Performance Awards
The Board may grant Performance Awards subject to such conditions and the attainment of such performance goals over such periods as the Board determines in writing and sets forth in a written agreement between the Corporation and the Participant. These awards may be designated as Performance Shares or Performance Units, which consist of unfunded bookkeeping entries generally having initial values equal to the Fair Market Value determined on the grant date of a Common Shares in the case of Performance Shares and a monetary value established by the Board at the time of grant in the case of Performance Units. Performance Awards will specify a predetermined amount of Performance Shares or Performance Units that may be earned by the Participant to the extent that one or more performance goals are attained within a predetermined performance period. To the extent earned, Performance Awards may be settled in cash, Common Shares (including restricted shares that are subject to additional vesting) or any combination of these.
- 10 -
Performance goals will be based on the attainment of specified target levels with respect to one or more measures of business or financial performance of the Corporation and each subsidiary corporation consolidated with the Corporation for financial reporting purposes, or such division or business unit of the Corporation as may be selected by the Board. The Board, in its discretion, may base performance goals on one or more of the following such measures (or any other metric or goals the Board may determine): revenue; sales; expenses; operating income; gross margin; operating margin; earnings before any one or more of: share-based compensation expense, interest, taxes, depreciation and amortization; pre-tax profit; adjusted pre-tax profit; net operating income; net income; economic value added; free cash flow; operating cash flow; balance of cash, cash equivalents and marketable securities; share price; earnings per share; return on shareholder equity; return on capital; return on assets; return on investment; total shareholder return, employee satisfaction; employee retention; market share; customer satisfaction; product development; research and development expense; completion of an identified special project, completion of a joint venture or other corporate transaction, and personal performance objectives established for an individual Participant or group of Participants.
The target levels with respect to these performance measures may be expressed on an absolute basis or relative to an index, budget or other standard specified by the Board. The degree of attainment of performance measures will be calculated in accordance with the Corporation’s financial statements, generally accepted accounting principles, if applicable, or other methodology established by the Board, but prior to the accrual or payment of any Performance Award for the same performance period, and, according to criteria established by the Board, excluding the effect (whether positive or negative) of changes in accounting standards or any unusual or infrequently occurring event or transaction occurring after the establishment of the performance goals applicable to a Performance Award.
Following completion of the applicable performance period, the Board will determine the extent to which the applicable performance goals have been attained and the resulting value to be paid to the Participant. The Board may make positive or negative adjustments to Performance Award payments to reflect an individual’s job performance or other factors determined by the Board. In its discretion, the Board may provide for a Participant awarded Performance Shares to receive dividend equivalent rights with respect to cash dividends paid on the Common Shares to the extent that the Performance Shares become vested. The Board may provide for Performance Award payments in lump sums or installments.
Unless otherwise provided by the Board, if a Participant’s service terminates due to the Participant’s death or disability prior to completion of the applicable performance period, the final award value will be determined at the end of the performance period on the basis of the performance goals attained during the entire performance period but will be prorated for the number of days of the Participant’s service during the performance period. The Board may provide similar treatment for a Participant whose service is involuntarily terminated. If a Participant’s service terminates prior to completion of the applicable performance period for any other reason, the Omnibus Plan provides that the Performance Award will be forfeited. No Performance Award may be sold or transferred other than by will or the laws of descent and distribution prior to the end of the applicable performance period.
Cash-Based Awards and Other Share-Based Awards
The Board may grant Cash-Based Awards or other share-based Awards in such amounts and subject to such terms and conditions as the Board determines. Cash-Based Awards will specify a monetary payment or range of payments, while other share-based Awards will specify a number of shares or units based on shares or other equity-related Awards. Such Awards may be subject to vesting conditions based on continued performance of service or subject to the attainment of one or more performance goals similar to those described above in connection with performance awards. Settlement of Awards may be in cash or Common Shares, as determined by the Board. A Participant will have no voting rights with respect to any such Award unless and until shares are issued pursuant to the Award. The Board may grant dividend equivalent rights with respect to other share-based Awards that will be subject to the same vesting conditions and settlement terms as the original Award. The effect on such Awards of the Participant’s termination of service will be determined by the Board and set forth in the Participant’s Award agreement.
Shareholder Approval
The Omnibus Plan is authorized by the Board to be effective the date of the Meeting, or any adjournment or postponement thereof, subject to the approval of disinterested shareholders at the Meeting. The Omnibus Plan will continue until the earlier of termination by the Board or 10 years from the Effective Date.
In accordance with the policies of the Exchange, the approval of the Omnibus Plan will require disinterested shareholder approval, being the approval of a majority of the votes cast by shareholders at the Meeting excluding Insiders and their Associates. An "Insider" includes all directors and senior officers of the Corporation and its subsidiaries and any person who beneficially owns or controls, directly or indirectly, more than 10% of the issued and outstanding Common Shares; and “Associates” includes an individual's spouse, children and any relative who lives in the same residence as such person. As of the date of this Circular, “Insiders” and “Associates” thereof hold an aggregate of 5,163,617 Common Shares, representing 4.3% of the issued and outstanding Common Shares of the Corporation, which shares will be excluded for the purposes of determining whether the Omnibus Plan is approved.
- 11 -
As of the date of this Circular, there were an aggregate of 10,392,508 stock options outstanding and unexercised under the existing 2019 Option Plan and no RSUs and no DSUs outstanding and unexercised under the existing 2017 RSU/DSU Plan, representing 8.7%%, nil% and nil%, respectively, of the issued and outstanding Common Shares. No other Common Shares are subject to any other security based compensation arrangements. If the Omnibus Plan is approved at the Meeting, a number of Common Shares will be reserved for issuance under the Omnibus Plan which, together with the Common Shares underlying the outstanding and unexercised stock options, RSUs and DSUs currently outstanding, represents 20% of the total issued and outstanding Common Shares as of the Effective Date. As of the date of this Circular, such 20% amount is 24,014,953 Common Shares, which amount will be adjusted following the Meeting to reflect 20% of the issued and outstanding Common Shares on the Effective Date. In the event all of the convertible securities of the Corporation are exercised/converted after the date hereof and on or before the Effective Date, such 20% amount could be a maximum of 30,514,255 Common Shares.
The Omnibus Plan is subject to approval by the TSXV and approval by the disinterested shareholders of the Corporation.
Accordingly, at the Meeting, shareholders are being asked to consider and, if thought advisable, approve an ordinary resolution in the following form:
“BE IT RESOLVED THAT:
(1) | the 2021 equity incentive plan of the Corporation (the “Omnibus Plan”), substantially in the form attached at Schedule “B” to the Information Circular of the Corporation dated March 25, 2021, be and the same is hereby ratified, confirmed and approved as the stock option plan of the Corporation; |
(2) | the form of the Omnibus Plan may be amended in order to satisfy the requirements or requests of any regulatory authority or stock exchange without requiring further approval of the shareholders of the Corporation; |
(3) | the shareholders of the Corporation hereby expressly authorize the board of directors of the Corporation, in its discretion, to revoke this resolution before it is acted upon without requiring further approval of the shareholders in that regard; and |
(4) | any one (or more) director or officer of the Corporation is authorized and directed, on behalf of the Corporation, to take all necessary steps and proceedings and to execute, deliver and file any and all declarations, agreements, documents and other instruments and do all such other acts and things (whether under corporate seal of the Corporation or otherwise) that may be necessary or desirable to give effect to this ordinary resolution |
In order to be passed, the above ordinary resolution must be approved by a majority of the aggregate votes cast by the disinterested holders of Common Shares at the Meeting. Unless otherwise instructed, the persons named in the enclosed proxy or voting instruction form intend to vote such proxy or voting instruction form in favour of the approval of the Omnibus Plan. The directors of the Corporation recommend that shareholders vote in favour of the approval of the Omnibus Plan. To be adopted, this resolution is required to be passed by the affirmative vote of a majority of the votes cast at the Meeting.
11. | CORPORATE GOVERNANCE DISCLOSURE |
Set forth below is a description of the Corporation’s current corporate governance practices, as prescribed by Form 58-101F2, which is attached to National Instrument 58-101 – Disclosure of Corporate Governance Practices (“NI 58-101”):
Board of Directors
The directors have determined that Mark Greenberg and Eugene Ewing, current and prospective members of the Board, are independent as such term is defined in NI 58-101, and that Gregory Crawford (President and Chief Executive Officer), current and prospective member of the Board, is not independent as such term is defined in NI 58-101, as he is an executive officer (as such term is defined in NI 51-102) of the Corporation.
- 12 -
Directorships
No directors and prospective directors of the Corporation are presently directors of other issuers that are reporting issuers (or the equivalent).
Orientation and Continuing Education
While the Corporation does not currently have a formal orientation and education program for new members of the Board, the Corporation provides such orientation and education on an ad hoc and informal basis.
Ethical Business Conduct
The directors maintain that the Corporation must conduct and be seen to conduct its business dealings in accordance with all applicable laws and the highest ethical standards. The Corporation’s reputation for honesty and integrity amongst its Shareholders and other stakeholders is key to the success of its business. No employee or director will be permitted to achieve results through violation of laws or regulations, or through unscrupulous dealings.
Any director with a conflict of interest or who is capable of being perceived as being in conflict of interest with respect to the Corporation must abstain from discussion and voting by the Board or any committee of the Board on any motion to recommend or approve the relevant agreement or transaction. The Board must comply with conflict of interest provisions of the BCBCA.
Nomination of Directors
Both the directors and management are responsible for selecting nominees for election to the Board. At present, there is no formal process established to identify new candidates for nomination. The Board and management determine the requirements for skills and experience needed on the Board from time to time. The present board of directors and management expect that new nominees have a track record in general business management, special expertise in an area of strategic interest to the Corporation, the ability to devote the time required, support for the Corporation’s business objectives and a willingness to serve.
Compensation
The directors carry out the evaluation of the Chief Executive Officer and develop the appropriate compensation policies for both the employees of the Corporation and the directors of the Corporation.
To determine appropriate compensation levels, the directors review compensation paid for directors and Chief Executive Officers of companies of similar size and stage of development in the healthcare industry and determine an appropriate compensation reflecting the need to provide incentive and compensation for the time and effort expended by the directors and senior management while taking into account the financial and other resources of the Corporation. In setting compensation levels, the directors annually review the performance of the Chief Executive Officer in light of the Corporation’s objectives and consider other factors that may have impacted the success of the Corporation in achieving its objectives. The directors may engage independent compensation advice in order to fulfill their mandate.
Other Board Committees
The Board has no committees other than the Audit Committee.
Assessments
The directors believe that nomination to the Corporation’s board of directors is not open ended and that directorships should be reviewed carefully for alignment with the strategic needs of the Corporation. To this extent, the directors constantly review (i) individual director performance and the performance of the Board as a whole, including processes and effectiveness; and (ii) the performance of the Chairman, if any, of the Board.
12. | AUDIT COMMITTEE |
National Instrument 52-110 – Audit Committees (“NI 52-110”) requires the Corporation, as a venture issuer, to disclose annually in its Circular certain information concerning the constitution of its Audit Committee and its relationship with its independent auditor.
- 13 -
Audit Committee Charter
The Corporation’s Audit Committee is governed by an audit committee charter, a copy of which is attached hereto as Schedule “A”.
Composition of Audit Committee
The Corporation’s Audit Committee is comprised of its three (3) directors, Eugene Ewing (Chair), Mark Greenberg, and Gregory Crawford. Each member of the audit committee is financially literate, as such term is defined in NI 52-110, and two of the members, Mark Greenberg and Eugene Ewing, are independent, as such term is defined in NI 52-110 and in the BCBCA.
The directors have determined that Eugene Ewing and Mark Greenberg, current and prospective members of the Board, are independent as such term is defined in NI 58-101, and that Gregory Crawford (President and Chief Executive Officer), current and prospective member of the Board, is not independent as such term is defined in NI 58-101, as he is an executive officer (as such term is defined in NI 51-102) of the Corporation.
Relevant Education and Experience
In addition to each member’s general business experience, the education and experience of each audit committee member relevant to the performance of his responsibilities as an audit committee member is as follows:
Eugene Ewing has over 30 years of professional experience in a wide range of executive positions and brings a wealth of corporate knowledge across a variety of industry groups. He currently serves as an independent director of Darling Ingredients Inc., a New York Stock Exchange listed company, where he serves as Chairman of the Audit Committee and as a member of the Nominating and Governance Committee. He also serves as an independent director of Compass Diversified Holdings, a New York Stock Exchange listed company, where he also serves as Chairman of the Audit Committee and as a member of the Compensation and Nominating/Corporate Governance Committees. In addition to his public company roles, Mr. Ewing has been the managing member of Deeper Water Consulting, a private wealth and business consulting company, since March of 2004. Previously, Mr. Ewing held senior positions at the Fifth Third Bank, ranked 17th in 2018 in total assets for U.S. banks, and was a tax partner at Arthur Andersen LLP for over 15 years. Mr. Ewing is also on the Advisory Board for the Von Allmen School of Accountancy at the University of Kentucky and is also a director of a private trust company located in Wyoming and a private consulting company located in California. As a former partner with what was once one of the U.S.’s largest certified public accounting firms, and with more than 30 years of business planning and transaction experience in a wide variety of industries and circumstances, Mr. Ewing brings to the Corporation’s Audit Committee significant experience in complex accounting, reporting and taxation matters and corporate merger and acquisition transactions. Mr. Ewing’s financial certifications and education, along with his current and past experiences, makes him uniquely qualified to Chair the Audit Committee the Corporation.
Mark Greenberg is Managing Partner and Founder of Silverstone Capital Advisors and brings more than thirty years of senior executive operating and transaction expertise and experience. He has been a senior executive and operating president of units in Fortune 500 companies and a CEO and Chairman of middle market and high growth, venture capital-backed companies, as well as an investment banker and restructuring and financial advisor serving middle market and financial institution clients nationwide. As a principal investor, advisor, investment banker and transaction team member Mark has participated in more than 150 M&A and capital sourcing transactions. These have included transactions involving units of Fortune 1000 companies, middle market companies and high growth venture funded businesses.
Gregory Crawford joined the Corporation through the Corporation’s acquisition of Patient-Aids, Inc. in October of 2015. Mr. Crawford began his career at Patient-Aids in 1994, becoming a partner three years later and Patient-Aids' sole owner by 2004. Under Crawford’s ownership, Patient-Aids grew at an annual rate of 25%, and from 2013 through 2015 more than doubled its revenue and quadrupled its earnings as it acquired and successfully integrated five home medical equipment businesses. Since 1982, Patient-Aids has been the dominant HME business in its region. Their product lines and services focus on treating patients with chronic respiratory conditions, mobility conditions, and patients requiring traditional durable medical home-based equipment.
External Auditor Matters
Since the commencement of the Corporation’s most recently completed financial year, the Corporation’s directors have not failed to adopt a recommendation of the Audit Committee to nominate or compensate an external auditor and the Corporation has not relied on the exemptions contained in sections 2.4 or 8 of NI 52-110. Section 2.4 provides an exemption from the requirement that the Audit Committee must pre-approve all non-audit services to be provided by the auditor, where the total amount of fees related to the non-audit services are not expected to exceed 5% of the total fees payable to the audit or in the financial year in which the non -audit services were provided. Part 8 permits a company to apply to a securities regulatory authority for an exemption from the requirements of NI 52 -110, in whole or in part .
- 14 -
The Audit Committee has not adopted specific policies and procedures for the engagement of non -audit services. Subject to the requirements of NI 52-110, the engagement of non-audit services is considered by the Corporation's directors and, where applicable, the Audit Committee, on a case-by-case basis.
In the following table, “Audit fees” are fees billed by the Corporation’s external auditor for services provided in auditing the Corporation’s annual financial statements for the subject year. “Audit -related fees” are fees not included in audit fees that are billed by the auditor for assurance and related services that are reasonably related to the performance of the audit or review of the Corporation’s financial statements. “Tax fees” are fees billed by the auditor for professional services rendered for tax compliance, tax advice and tax planning. “All other fees” are fees billed by the auditor for products and services not included in the foregoing categories.
The fees paid by the Corporation to its auditor in its previous two financial year -ends, by category, are as follows (expressed in Canadian dollars):
Financial Year Ending | Audit Fees | Audit-Related Fees | Tax Fees | All Other Fees | ||||||||||
September 30, 2020 | $ | 280,000 | $ | 149,000 | Nil | Nil | ||||||||
September 30, 2019 | $ | 265,000 | Nil | Nil | Nil |
Exemptions:
The Corporation is a “ venture issuer” as defined in NI 52 -110 and is relying on the exempt ion contained in Sect ion 6.1 of NI 52 - 110, which exempts the Corporation from the requirements of Part 3 (Composition of the Audit Committee) and Part 5 (Reporting Obligations) of NI 52 -110.
13. | EXECUTIVE COMPENSATION |
Securities legislation requires the disclosure of the compensation received by each “Named Executive Officer” (“ Named Executive Officer”) of the Corporation for the most recently completed financial year. “Named Executive Officer” is defined by the legislation to mean: (i) the Chief Executive Officer of the Corporation; (ii) the Chief Financial Officer of the Corporation; (iii) each of the Corporation’s three most highly compensated executive officers or the three most highly compensated individuals acting in a similar capacity, other than the Chief Executive Officer and Chief Financial Officer, at the end of the most recently completed financial year and whose total compensation was, individually, more than $150,000 for that financial year; and (iv) each individual who would be a “Named Executive Officer” under paragraph (iii) but for the fact that the individual was neither an executive officer of the Corporation, nor acting in a similar capacity, at the end of the most recently completed financial year.
Compensation Discussion and Analysis
During the financial year ended September 30, 2020, the Corporation’s executive compensation program was administered by the Board. The Corporation’s executive compensation program has the objective of attracting and retaining a qualified and cohesive group of executives, motivating team performance and the aligning of the interests of executives with the interests of the Corporation’s shareholders through a package of compensation that is simple and easy to understand and implement. Compensation under the program was designed to achieve both current and longer-term goals of PHM and to optimize returns to shareholders. In addition, in order to further align the interests of executives with the interests of the Corporation’s shareholders, the Corporation has implemented share ownership incentives through the 2019 Option Plan, and the 2017 RSU/DSU Plan . The Corporation’s overall compensation objectives are in line with its peer group of healthcare companies with opportunities to participate in equity.
In determining the total compensation of any member of senior management, the directors of Corporation consider all elements of compensation in total rather than one element in isolation. The directors of the Corporation also examine the competitive positioning of total compensation and the mix of fixed, incentive and share-based compensation.
Base Salary
While there is no official set of benchmarks that the Corporation relies on and there is not a defined list of issuers that the Corporation uses as a benchmark, the Corporation makes itself aware of, and is cognizant of, how comparable issuers in its business compensate their executives. The base salary for each executive officer is reviewed and established near the end of the fiscal year. Base salaries are established taking into consideration the executive officer’s personal performance and seniority, comparability within industry norms, and contribution to the corporation’s growth and profitability. Management of the Corporation believes that a competitive base salary is an imperative element of any compensation program that is designed to attract talented and experienced executives.
- 15 -
Bonus Framework
At the discretion of the Board, executives are provided with annual cash incentive bonuses based on annual financial performance. Also at its discretion, the Board may tie annual cash bonuses to the achievement of other financial and non-financial goals. If the targets set are not met, the bonuses are not paid.
Group Benefits
The Corporation offers a group benefits plan, which includes medical benefits and a matching (up to 4%) 401K plan. The benefits plan is available to all full-time employees who choose to enroll, including officers of the Corporation.
Perquisites and Personal Benefits
While the Corporation reimburses its Named Executive Officers for expenses incurred in the course of performing their duties as executive officers of the Corporation, the Corporation did not provide any compensation that would be considered a perquisite or personal benefit to its Named Executive Officers, other than car allowances as disclosed below.
Option-Based Awards
An important part of the Corporation’s compensation program is to offer the opportunity and incentive for executives and staff to own shares of the Corporation. The directors of the Corporation believe that ownership of its shares will align the interests of executives and future staff with the interests of the Corporation’s shareholders.
Share-based and option-based awards are not granted on a regular schedule but rather as the compensation is reviewed by the directors of the Corporation from time to time. When reviewing awards, consideration is given to the total compensation package of the executives and staff and a weighting of appropriate incentives groupings at the senior, mid and junior levels of the staff including past grants. At the time of any award, consideration is also be given to the available pool remaining for new positions being contemplated by the Corporation.
Option Plan
The 2019 Option Plan was approved at the annual and special meeting of the shareholders of the Corporation held on January 28, 2019. The purpose of the 2019 Option Plan is to provide incentive to employees, directors, officers, management companies, and consultants who provide services to Corporation or any of its subsidiaries.
Pursuant to the 2019 Option Plan, the maximum number of Common Shares to be delivered upon the exercise of all stock options granted under the 2019 Option Plan combined with any equity securities granted under all other compensation arrangements adopted by the Corporation, including the 2017 RSU/DSU Plan (as defined below), may not exceed 20% of the issued and outstanding share capital of the Corporation as of the date the 2019 Option Plan was approved, namely 16,705,940 Common Shares, which options may be exercisable for a period of up to ten (10) years from the date of the grant, subject to the exception that expiry dates that fall within a blackout period will be extended by ten (10) business days from the expiry of the blackout period, subject to certain conditions being met.
Subject to obtaining disinterested shareholder approval, the number of Common Shares reserved for issuance pursuant to grant of options to any individual may not exceed 5% of the issued and outstanding Common Shares in any 12-month period (2% in the case of all optionees providing investor relations services to the Corporation and 2% in the case of all consultants of the Corporation in any 12-month period). The exercise price and vesting terms of any option granted pursuant to an option will be determined by the directors of the Corporation when granted but shall not be less than the market price. Notwithstanding the foregoing, the vesting terms for options granted to optionees performing investor relations activities will vest no sooner than one-quarter (1/4) on every three (3) month interval from the date of grant.
The options granted pursuant to the 2019 Option Plan will be non-transferable, except by means of a will or pursuant to the laws of descent and distribution. If the tenure of an officer or the employment of an employee of the Corporation, is terminated for cause, no option held by such optionee may be exercised following the date upon which termination occurred. If termination occurs for any reason other than cause, then any option held by such optionee will be exercisable, in whole or in part, for thirty (30) days from the date of termination, subject to the discretion of the directors of the Corporation to extend such period up to one (1) year following the date of termination, which will be determined by the directors of the Corporation at the time of each grant or on the date of termination; notwithstanding the foregoing, the directors of the Corporation may in its discretion determine that all of the options held by an optionee on the date of termination which have not yet vested shall vest immediately on such date.
- 16 -
Restricted Share Units/Deferred Share Units
The 2017 RSU/DSU Plan was approved at the special meeting of the shareholders and option holders of the Corporation held on December 15, 2017. The 2017 RSU/DSU Plan was established as a means by which the Corporation may grant awards of restricted share units (“RSUs”) and deferred share units (“DSUs”) as an alternative to stock options to provide incentive to officers, directors and employees who provide services to the Corporation or any of its subsidiaries.
The maximum number of Common Shares to be delivered upon the exercise of all RSUs and DSUs granted under the 2017 RSU/DSU Plan, combined with any equity securities granted under all other compensation arrangements adopted by the Corporation, including the 2019 Option Plan, may not exceed 20% of the issued and outstanding share capital of the Corporation as of the effective date of the 2017 RSU/DSU Plan, namely 15,163,855 Common Shares.
Pursuant to the 2017 RSU/DSU Plan, the directors of the Corporation may from time to time, in its discretion, grant DSUs, or if permitted by the directors of the Corporation, eligible participants may elect to receive their compensation in the form of DSUs, which will consist of non-transferable rights to receive, on a deferred payment basis, the Common Shares or a cash payment equal to the fair market value of Common Shares, or a combination thereof. The number of DSUs to be credited to a person will be determined based on the amount of compensation to be paid in DSUs divided by the fair market value of the Common Shares as determined by the directors of the Corporation, on a one DSU per Common Share basis. DSUs will be redeemed by the Corporation upon the holder ceasing to be employed by or ceasing to provide services to the Corporation, as applicable, and will be settled pursuant to the terms and conditions of the 2017 RSU/DSU Plan.
The directors of the Corporation may also from time to time grant RSUs, which will represent non-transferable rights to receive upon vesting of the RSUs The Common Shares or cash payments equal to the vesting date value of the Common Shares. Except as otherwise provided in the 2017 RSU/DSU Plan, RSUs will vest on the later of (a) the trigger date, being a date set by the directors of the Corporation that is no later than December 1 of the third calendar year following the grant date, and (b) the date upon which all other applicable vesting conditions determined by the directors of the Corporation, including any performance based vesting conditions, have been met. Vesting may be accelerated in certain circumstances, including upon termination without cause in connection with a change of control of the Corporation or upon death or permanent disability of the holder. RSUs will be automatically deemed cancelled without compensation if they have not vested on or before the applicable expiry date, which will be December 31 of the third calendar year after the grant date or such earlier date as may be established by the directors of the Corporation. Subject to the discretion of directors of the Corporation, RSUs will also be cancelled without compensation in the event that a holder ceases to be engaged as a service provider of the Corporation.
Summary Compensation Table for Named Executive Officers
The following table sets forth information concerning the total compensation paid in the financial years ended September 30, 2020, 2019 and 2018 to those persons who were Named Executive Officers of the Corporation for the financial year ended September 30, 2020 (expressed in U.S. dollars):
Non-equity incentive
plan compensation ($) |
||||||||||||||||||||||||||||||||
Name and
principal position |
Year |
Salary
($) |
Share-
based awards ($) |
Option-based
Awards(3) ($) |
Annual
incentive plans |
Long term
incentive plans |
Pension
value ($) |
All other
compen- sation ($) |
Total
compen- sation ($) |
|||||||||||||||||||||||
Gregory Crawford | 2020 | 425,000 | N/A | N/A | N/A | N/A | N/A | 15,066 | 440,066 | |||||||||||||||||||||||
CEO and former COO(1) | 2019 | 425,000 | N/A | N/A | N/A | N/A | N/A | 227,452 | (4) | 652,452 | ||||||||||||||||||||||
2018 | 417,923 | N/A | 848,260 | N/A | N/A | N/A | 24,575 | 1,290,758 | ||||||||||||||||||||||||
Hardik Mehta | 2020 | 360,000 | N/A | N/A | N/A | N/A | N/A | 17,889 | 377,889 | |||||||||||||||||||||||
CFO(2) | 2019 | 360,000 | N/A | N/A | N/A | N/A | N/A | 196,320 | (4) | 556,320 | ||||||||||||||||||||||
2018 | 226,538 | N/A | 757,010 | N/A | N/A | N/A | 27,000 | 1,010,548 |
Notes:
(1) | Mr. Crawford was Chief Operating Officer from April 19, 2016 to December 21, 2017. He has been the President and Chief Executive Officer of the Corporation since December 21, 2017. |
(2) | Mr. Mehta has been the Chief Financial Officer of the Corporation since February 15, 2018. |
(3) | For 2018, calculated at the date of the grant using the black-scholes options pricing model with the following assumptions: risk free interest rates of 2.36%; dividend yield of nil; expected stock price volatility of 136.35%; option life of 10 years. |
(4) | Included in other compensation is a bonus paid to Mr. Crawford ($212,500) and Mr. Mehta ($180,000). |
- 17 -
Incentive Plan Awards
Outstanding Share-Based Awards and Option-Based Awards
The following table sets forth all awards outstanding for the Named Executive Officers as of September 30, 2020 (expressed in
Canadian dollars):
Option-Based Awards | Share-Based Awards | |||||||||||
Name |
Number of
securities
(#) |
Option
exercise
|
Option
expiration
|
Value of
unexercised in-
($) |
Number of
shares or units
|
Market or payout
value of share
($) |
||||||
Gregory Crawford | 2,324,000 | 0.375 | April 9, 2028 | 2,172,940 | N/A | N/A | ||||||
Hardik Mehta | 2,074,000 | 0.375 | April 9, 2028 | 1,939,190 | N/A | N/A |
Notes:
(1) | Aggregate value is calculated based on the difference between the exercise price of the options and the last closing price of the Common Shares on the TSXV on September 30, 2020, namely $1.31. |
Incentive Plan Awards – Value Vested or Earned During the Year
No incentive plan awards vested or were earned for the Named Executive Officers during the year ended September 30, 2020.
Pension Plan Benefits
The Corporation has not implemented a pension plan.
Termination and Change of Control Benefits
As at the end of the Corporation’s most recently completed financial year (September 30, 2020) the Corporation had not entered into any contract, agreement, plan or arrangement that provides for payments to a Named Executive Officer at, following or in connection with any termination (whether voluntary, involuntary or constructive), resignation, pursuant to retirement, a change in control of the Corporation or a change in Named Executive Officer’s responsibilities.
Risk of Compensation Practices and Disclosure
The directors of the Corporation have not proceeded to a formal evaluation of the implications of the risks associated with the Corporation’s compensation policies and practices. Risk management is a consideration of the directors when implementing its compensation program, and the directors of the Corporation do not believe that the Corporation’s compensation program results in unnecessary or inappropriate risk taking, including risks that are likely to have a material adverse effect on the Corporation.
Hedging Policy
Neither the Named Executive Officers nor the directors of the Corporation are permitted to purchase financial instruments that are designed to hedge or offset a decrease in market value of equity securities granted as compensation or held, directly or indirectly, by the Named Executive Officers or directors of the Corporation, including prepaid variable forward contracts, equity swaps, collars or units of exchange funds.
- 18 -
Director Compensation
Directors have been granted options as long-term incentives to align the individual’s interests with those of the Corporation.
Director Compensation Table for Directors (other than the Named Executive Officers)
The following table sets forth all compensation provided to person who was a director of the Corporation during the financial year ended September 30, 2020 (other than a director who is a Named Executive Officer, whose disclosure with respect to compensation is set out above) for the financial year ended September 30, 2020 (expressed in United States dollars):
Name |
Fees
($) |
Share-
awards ($) |
Option-
awards ($) |
Non-equity
compensation ($) |
Pension
($) |
All other
($) |
Total ($) |
|||||||
Mark Greenberg(1) | 120,000 | N/A | N/A | N/A | N/A | N/A | 120,000 | |||||||
Eugene Ewing(2) | 50,000 | N/A | N/A | N/A | N/A | N/A | 50,000 |
Notes:
(1) | During the year ended September 30, 2020, Mr. Greenberg was compensated $120,000, payable monthly in arrears, for his position on the Board. |
(2) | During the year ended September 30, 2020, Mr. Ewing was compensated $40,000, payable quarterly in arrears, for his position on the Board and $10,000, payable quarterly in arrears, for serving as Chair of the Audit Committee. |
Outstanding Share-Based Awards and Option-Based Awards
The following table sets forth all awards outstanding for each person who was a director of the Corporation during the financial year ended September 30, 2020 (other than a director who is a Named Executive Officer, whose disclosure with respect to incentive plan awards is set out above) as of September 30, 2020 (expressed in Canadian dollars):
Option-Based Awards | Share-Based Awards | |||||||||||
Name |
Number of
underlying
options (#) |
Option
price ($) |
Option
date |
Value of
in-the-money
|
Number of
of shares that
(#) |
Market or payout
based awards
vested ($) |
||||||
Mark Greenberg | 1,715,000 | 0.375 | April 9, 2028 | 1,603,525 | N/A | N/A | ||||||
Eugene Ewing | 200,000 | 0.55 | August 1, 2028 | 152,000 | N/A | N/A |
Notes:
(1) | Aggregate value is calculated based on the difference between the exercise price of the options and the last closing price of the Common Shares on the TSXV on September 30, 2020, namely $1.31. |
Incentive Plan Awards – Value Vested or Earned During the Year
No incentive plan awards vested or were earned by any person who was a director of the Corporation during the financial year ended September 30, 2020 (other than a director who is a Named Executive Officer, whose disclosure with respect to incentive plan awards is set out above) during the year ended September 30, 2020.
- 19 -
14. | SECURITIES AUTHORIZED FOR ISSUANCE UNDER EQUITY COMPENSATION PLANS |
The following table provides information as of September 30, 2020 regarding the number of Common Shares to be issued pursuant to equity compensation plans of the Corporation and the weighted-average exercise price of said securities:
Plan Category |
Number of securities to be issued
options, warrants and rights (a) |
Weighted-average
outstanding options, warrants and rights (b) |
Number of securities remaining available
compensation plans (excluding securities
reflected in column (a))
|
|||
Equity compensation plans approved by securityholders |
10,506,258 | $0.485 | 5,621,682 | |||
Equity compensation plans not approved by securityholders | - | - | - | |||
Total | 10,506,258 | $0.485 | 5,621,682 |
The securities referred to in the table above were granted under the 2019 Option Plan (or its predecessors plans).
15. | INDEBTEDNESS OF DIRECTORS AND EXECUTIVE OFFICERS |
None of the directors, the proposed nominees for election as director, the executive officers of the Corporation, or any of their respective associates or affiliates is or has been, during the year ended September 30, 2020, indebted to the Corporation or any of its subsidiaries in respect of loans, advances or guarantees of indebtedness.
16. | DIRECTOR AND OFFICER INSURANCE |
The Corporation maintains an executive and organization liability insurance policy that covers directors and officers for costs incurred to defend and settle claims against directors and officers of the Corporation to an annual limit of $25,000,000 with retention of $50,000 on securities and oppressive conduct claims and $50,000 on all other claims. The cost of coverage for 2020 was approximately $143,578. Directors and officers do not pay any portion of the premiums and no indemnity claims were made or became payable during the year ended September 30, 2020.
17. | INTEREST OF INFORMED PERSONS IN MATERIAL TRANSACTIONS |
Except as otherwise disclosed herein and below, none of the informed persons (as such term is defined in NI 51-102) of the Corporation, any proposed director of the Corporation, or any associate or affiliate of any informed person or proposed director, has had any material interest, direct or indirect, in any transaction of the Corporation since the commencement of the Corporation’s most recently completed financial year or in any proposed transaction which has materially affected or would materially affect the Corporation or any of its subsidiaries.
On October 1, 2015, the Corporation entered into four market rate, seven-year, operating leases for office, warehouse, and retail space with a rental company affiliated with the Gregory Crawford, the Corporation’s current Chief Executive Officer. The leases, for six different locations, have a combined area of approximately 74,520 square feet. Rental payments under this lease agreement are approximately US$52,000 per month, plus taxes, utilities and maintenance. The lease is recorded as a lease liability.
18. | MANAGEMENT CONTRACTS |
There are no management functions of the Corporation which are to any substantial degree performed by a person or a company other than the directors or executive officers of the Corporation.
19. | PARTICULARS OF OTHER MATTERS TO BE ACTED UPON |
Other than the foregoing, management of the Corporation knows of no other matter to come before the Meeting other than those referred to in the Notice. However, if any other matters which are not known to the management should properly come before the Meeting, the accompanying form of proxy confers discretionary authority upon the persons named therein to vote on such matters in accordance with their best judgment.
- 20 -
20. | ADDITIONAL INFORMATION |
Additional information relating to the Corporation, including copies of the Corporation's financial statements and Management's Discussion and Analysis is available on SEDAR at www.sedar.com, copies of which may be obtained from the Corporation upon request. The Corporation may require the payment of a reasonable charge if the request is made by a person who is not a shareholder of the Corporation.
21. | CURRENCY |
Unless otherwise specified, all dollar amounts in this Circular, including the symbol “$”, are expressed in Canadian dollars.
DATED this 25th day of March, 2021.
BY ORDER OF THE BOARD
(signed) “Gregory Crawford”
Chairman of the Board of Directors
- 21 -
SCHEDULE “A”
AUDIT COMMITTEE CHARTER
(see attached)
CHARTER OF THE AUDIT COMMITTEE
1. | PURPOSE AND PRIMARY RESPONSIBILITY |
1.1 This charter sets out the Audit Committee’s purpose, composition, member qualification, member appointment and removal, responsibilities, operations, manner of reporting to the Board of Directors (the “Board”) of the Company, annual evaluation and compliance with this charter.
1.2 The primary responsibility of the Audit Committee is that of oversight of the financial reporting process on behalf of the Board. This includes oversight responsibility for financial reporting and continuous disclosure, oversight of external audit activities, oversight of financial risk and financial management control, and oversight responsibility for compliance with tax and securities laws and regulations as well as whistle blowing procedures. The Audit Committee is also responsible for the other matters as set out in this charter and/or such other matters as may be directed by the Board from time to time. The Audit Committee should exercise continuous oversight of developments in these areas.
2. | MEMBERSHIP |
2.1 A majority of the members of the Audit Committee must not be executive officers, employees or control persons of the Company or of an affiliate of the Company, as defined in National Instrument 52-110 – Audit Committees (“NI 52-110”), provided that should the Company become listed on a more senior exchange, each member of the Audit Committee will also satisfy the independence requirements of such exchange and of NI 52-110.
2.2 The Audit Committee will consist of at least three members, all of whom must be directors of the Company. Upon graduating to a more senior stock exchange, if required under the rules or policies of such exchange, each member of the Audit Committee will also satisfy the financial literacy requirements of such exchange and of NI 52-110.
2.3 The members of the Audit Committee will be appointed annually (and from time to time thereafter to fill vacancies on the Audit Committee) by the Board. An Audit Committee member may be removed or replaced at any time at the discretion of the Board and will cease to be a member of the Audit Committee on ceasing to be an independent director.
2.4 The Chair of the Audit Committee will be appointed by the Board.
3. | AUTHORITY |
3.1 In addition to all authority required to carry out the duties and responsibilities included in this charter, the Audit Committee has specific authority to:
(a) engage, set and pay the compensation for independent counsel and other advisors as it determines necessary to carry out its duties and responsibilities, and any such consultants or professional advisors so retained by the Audit Committee will report directly to the Audit Committee;
- 2 -
(b) communicate directly with management and any internal auditor, and with the external auditor without management involvement; and
(c) incur ordinary administrative expenses that are necessary or appropriate in carrying out its duties, which expenses will be paid for by the Company.
4. | DUTIES AND RESPONSIBILITIES |
4.1 The duties and responsibilities of the Audit Committee include:
(a) recommending to the Board the external auditor to be nominated by the Board;
(b) recommending to the Board the compensation of the external auditor to be paid by the Company in connection with (i) preparing and issuing the audit report on the Company’s financial statements, and (ii) performing other audit, review or attestation services;
(c) reviewing the external auditor’s annual audit plan, fee schedule and any related services proposals (including meeting with the external auditor to discuss any deviations from or changes to the original audit plan, as well as to ensure that no management restrictions have been placed on the scope and extent of the audit examinations by the external auditor or the reporting of their findings to the Audit Committee);
(d) overseeing the work of the external auditor;
(e) ensuring that the external auditor is independent by receiving a report annually from the external auditors with respect to their independence, such report to include disclosure of all engagements (and fees related thereto) for non-audit services provided to Company;
(f) ensuring that the external auditor is in good standing with the Canadian Public Accountability Board by receiving, at least annually, a report by the external auditor on the audit firm’s internal quality control processes and procedures, such report to include any material issues raised by the most recent internal quality control review, or peer review, of the firm, or any governmental or professional authorities of the firm within the preceding five years, and any steps taken to deal with such issues;
(g) ensuring that the external auditor meets the rotation requirements for partners and staff assigned to the Company’s annual audit by receiving a report annually from the external auditors setting out the status of each professional with respect to the appropriate regulatory rotation requirements and plans to transition new partners and staff onto the audit engagement as various audit team members’ rotation periods expire;
(h) reviewing and discussing with management and the external auditor the annual audited and quarterly unaudited financial statements and related Management Discussion and Analysis (“MD&A”), including the appropriateness of the Company’s accounting policies, disclosures (including material transactions with related parties), reserves, key estimates and judgements (including changes or variations thereto) and obtaining reasonable assurance that the financial statements are presented fairly in accordance with IFRS and the MD&A is in compliance with appropriate regulatory requirements;
- 3 -
(i) reviewing and discussing with management and the external auditor major issues regarding accounting principles and financial statement presentation including any significant changes in the selection or application of accounting principles to be observed in the preparation of the financial statements of the Company and its subsidiaries;
(j) reviewing and discussing with management and the external auditor the external auditor’s written communications to the Audit Committee in accordance with generally accepted auditing standards and other applicable regulatory requirements arising from the annual audit and quarterly review engagements;
(k) reviewing and discussing with management and the external auditor all earnings press releases, as well as financial information and earnings guidance provided to analysts and rating agencies prior to such information being disclosed;
(l) reviewing the external auditor’s report to the shareholders on the Company’s annual financial statements;
(m) reporting on and recommending to the Board the approval of the annual financial statements and the external auditor’s report on those financial statements, the quarterly unaudited financial statements, and the related MD&A and press releases for such financial statements, prior to the dissemination of these documents to shareholders, regulators, analysts and the public;
(n) satisfying itself on a regular basis through reports from management and related reports, if any, from the external auditors, that adequate procedures are in place for the review of the Company’s disclosure of financial information extracted or derived from the Company’s financial statements that such information is fairly presented;
(o) overseeing the adequacy of the Company’s system of internal accounting controls and obtaining from management and the external auditor summaries and recommendations for improvement of such internal controls and processes, together with reviewing management’s remediation of identified weaknesses;
(p) reviewing with management and the external auditors the integrity of disclosure controls and internal controls over financial reporting;
(q) reviewing and monitoring the processes in place to identify and manage the principal risks that could impact the financial reporting of the Company and assessing, as part of its internal controls responsibility, the effectiveness of the over-all process for identifying principal business risks and report thereon to the Board;
(r) satisfying itself that management has developed and implemented a system to ensure that the Company meets its continuous disclosure obligations through the receipt of regular reports from management and the Company’s legal advisors on the functioning of the disclosure compliance system, (including any significant instances of non-compliance with such system) in order to satisfy itself that such system may be reasonably relied upon;
- 4 -
(s) resolving disputes between management and the external auditor regarding financial reporting;
(t) establishing procedures for:
(i) the receipt, retention and treatment of complaints received by the Company from employees and others regarding accounting, internal accounting controls or auditing matters and questionable practises relating thereto, and
(ii) the confidential, anonymous submission by employees of the Company of concerns regarding questionable accounting or auditing matters;
(u) reviewing and approving the Company’s hiring policies with respect to partners or employees (or former partners or employees) of either a former or the present external auditor;
(v) pre-approving all non -audit services to be provided to the Company or any subsidiaries by the Company’s external auditor;
(w) overseeing compliance with regulatory authority requirements for disclosure of external auditor services and Audit Committee activities;
(x) establishing procedures for:
(i) reviewing the adequacy of the Company’s insurance coverage, including the Directors’ and Officers’ insurance coverage;
(ii) reviewing activities, organizational structure, and qualifications of the Chief Financial Officer (“CFO”) and the staff in the financial reporting area and ensuring that matters related to succession planning within the Company are raised for consideration at the Board;
(iii) obtaining reasonable assurance as to the integrity of the Chief Executive Officer (“CEO”) and other senior management and that the CEO and other senior management strive to create a culture of integrity throughout the Company;
(iv) reviewing fraud prevention policies and programs, and monitoring their implementation;
(v) reviewing regular reports from management and others (e.g., external auditors, legal counsel) with respect to the Company’s compliance with laws and regulations having a material impact on the financial statements including:
(A) tax and financial reporting laws and regulations;
- 5 -
(B) legal withholding requirements;
(C) environmental protection laws and regulations;
(D) other laws and regulations which expose directors to liability; and
4.2 A regular part of Audit Committee meetings involves the appropriate orientation of new members as well as the continuous education of all members. Items to be discussed include specific business issues as well as new accounting and securities legislation that may impact the organization. The Chair of the Audit Committee will regularly canvass the Audit Committee members for continuous education needs and in conjunction with the Board education program, arrange for such education to be provided to the Audit Committee on a timely basis.
4.3 On an annual basis the Audit Committee shall review and assess the adequacy of this charter taking into account all applicable legislative and regulatory requirements as well as any best practice guidelines recommended by regulators or stock exchanges with whom the Company has a reporting relationship and, if appropriate, recommend changes to the Audit Committee charter to the Board for its approval.
5. | MEETINGS |
5.1 The quorum for a meeting of the Audit Committee is a majority of the members of the Audit Committee.
5.2 The Chair of the Audit Committee shall be responsible for leadership of the Audit Committee, including scheduling and presiding over meetings, preparing agendas, overseeing the preparation of briefing documents to circulate during the meetings as well as pre-meeting materials, and making regular reports to the Board. The Chair of the Audit Committee will also maintain regular liaison with the CEO, CFO, and the lead external audit partner.
5.3 The Audit Committee will meet in camera separately with each of the CEO and the CFO of the Company at least annually to review the financial affairs of the Company.
5.4 The Audit Committee will meet with the external auditor of the Company in camera at least once each year, at such time(s) as it deems appropriate, to review the external auditor’s examination and report.
5.5 The external auditor must be given reasonable notice of, and has the right to appear before and to be heard at, each meeting of the Audit Committee.
5.6 Each of the Chair of the Audit Committee, members of the Audit Committee, Chair of the Board, external auditor, CEO, CFO or secretary shall be entitled to request that the Chair of the Audit Committee call a meeting which shall be held within 48 hours of receipt of such request to consider any matter that such individual believes should be brought to the attention of the Board or the shareholders.
6. | REPORTS |
6.1 The Audit Committee will report, at least annually, to the Board regarding the Audit Committee’s examinations and recommendations.
- 6 -
6.2 The Audit Committee will report its activities to the Board to be incorporated as a part of the minutes of the Board meeting at which those activities are reported.
7. | MINUTES |
7.1 The Audit Committee will maintain written minutes of its meetings, which minutes will be filed with the minutes of the meetings of the Board.
8. | ANNUAL PERFORMANCE EVALUATION |
8.1 The Board will conduct an annual performance evaluation of the Audit Committee, taking into account the charter, to determine the effectiveness of the Committee.
SCHEDULE “B”
OMNIBUS PLAN
(see attached)
- 2 -
PROTECH HOME MEDICAL CORP.
2021 EQUITY INCENTNE PLAN
TABLE OF CONTENTS
Page | |||
1. | ESTABLISHMENT, PURPOSE AND TERM OF PLAN | 1 | |
1.1 | Establishment | 1 | |
1.2 | Purpose | 1 | |
1.3 | Term of Plan | 1 | |
2. | DEFINITIONS AND CONSTRUCTION | 1 | |
2.1 | Definitions | 1 | |
2.2 | Construction | 7 | |
3. | ADMINISTRATION | 7 | |
3.1 | Administration by the Committee | 7 | |
3.2 | Authority of Officers | 7 | |
3.3 | Administration with Respect to Insiders | 8 | |
3.4 | Powers of the Committee | 8 | |
3.5 | Option or SAR Repricing | 8 | |
3.6 | Indemnification | 9 | |
4. | SHARES SUBJECT TO PLAN | 9 | |
4.1 | Maximum Number of Shares Issuable | 9 | |
4.2 | Adjustment for Unissued or Forfeited Predecessor Plan Shares | 9 | |
4.3 | Share Counting | 9 | |
4.4 | Adjustments for Changes in Capital Structure | 10 | |
4.5 | Assumption or Substitution of Awards | 10 | |
5. | ELIGIBILITY, PARTICIPATION AND AWARD LIMITATIONS | 10 | |
5.1 | Persons Eligible for Awards | 10 | |
5.2 | Participation in the Plan | 11 | |
5.3 | Incentive Stock Option Limitations | 11 | |
5.4 | Nonemployee Director Award Limit | 11 | |
6. | STOCK OPTIONS | 12 | |
6.1 | Exercise Price | 12 | |
6.2 | Exercisability and Term of Options | 12 | |
6.3 | Payment of Exercise Price | 13 | |
6.4 | Effect of Termination of Service | 13 | |
6.5 | Transferability of Options | 14 | |
7. | STOCK APPRECIATION RIGHTS | 15 | |
7.1 | Types of SARs Authorized | 15 | |
7.2 | Exercise Price | 15 | |
7.3 | Exercisability and Term of SARs | 15 | |
7.4 | Exercise of SARs | 15 |
i
7.5 | Deemed Exercise of SARs | 16 | |
7.6 | Effect of Termination of Service | 16 | |
7.7 | Transferability of SARs | 16 | |
8. | RESTRICTED SHARE AWARDS | 16 | |
8.1 | Types of Restricted Share Awards Authorized | 16 | |
8.2 | Purchase Price | 16 | |
8.3 | Purchase Period | 16 | |
8.4 | Payment of Purchase Price | 16 | |
8.5 | Vesting and Restrictions on Transfer | 16 | |
8.6 | Voting Rights; Dividends and Distributions | 17 | |
8.7 | Effect of Termination of Service | 17 | |
8.8 | Nontransferability of Restricted Share Award Rights | 17 | |
9. | RESTRICTED SHARE UNITS | 17 | |
9.1 | Grant of Restricted Share Unit Awards | 17 | |
9.2 | Purchase Price | 18 | |
9.3 | Vesting | 18 | |
9.4 | Voting Rights, Dividend Equivalent Rights and Distributions | 18 | |
9.5 | Effect of Termination of Service | 18 | |
9.6 | Settlement of Restricted Share Unit Awards | 18 | |
9.7 | Nontransferability of Restricted Share Unit Awards | 19 | |
10. | PERFORMANCE AWARDS | 19 | |
10.1 | Types of Performance Awards Authorized | 19 | |
10.2 | Initial Value of Performance Shares and Performance Units | 19 | |
10.3 | Establishment of Performance Period, Performance Goals and Performance Award Formula | 19 | |
10.4 | Measurement of Performance Goals | 20 | |
10.5 | Settlement of Performance Awards | 21 | |
10.6 | Voting Rights; Dividend Equivalent Rights and Distributions | 22 | |
10.7 | Effect of Termination of Service | 22 | |
10.8 | Nontransferability of Performance Awards | 23 | |
11. | CASH-BASED AWARDS AND OTHER SHARE-BASED AWARDS | 23 | |
11.1 | Grant of Cash-Based Awards | 23 | |
11.2 | Grant of Other Share-Based Awards | 23 | |
11.3 | Value of Cash-Based and Other Share-Based Awards | 23 | |
11.4 | Payment or Settlement of Cash-Based Awards and Other Share-Based Awards | 23 | |
11.5 | Voting Rights; Dividend Equivalent Rights and Distributions | 23 | |
11.6 | Effect of Termination of Service | 24 | |
11.7 | Nontransferability of Cash-Based Awards and Other Share-Based Awards | 24 | |
12. | STANDARD FORMS OF AWARD AGREEMENT | 24 | |
12.1 | Award Agreements | 24 |
ii
12.2 | Authority to Vary Terms | 24 | |
13. | CHANGE IN CONTROL, DISSOLUTION OR LIQUIDATION | 24 | |
13.1 | Effect of Change in Control on Awards | 24 | |
13.2 | Effect of Change in Control on Nonemployee Director Awards | 25 | |
13.3 | Dissolution or Liquidation | 25 | |
13.4 | Federal Excise Tax Under Section 4999 of the Code | 25 | |
14. | COMPLIANCE WITH SECURITIES LAW | 26 | |
15. | COMPLIANCE WITH SECTION 409A | 26 | |
15.1 | Awards Subject to Section 409A | 26 | |
15.2 | Deferral and/or Distribution Elections | 27 | |
15.3 | Subsequent Elections | 27 | |
15.4 | Payment of Section 409A Deferred Compensation | 27 | |
16. | TAX WITHHOLDING | 29 | |
16.1 | Tax Withholding in General | 29 | |
16.2 | Withholding in or Directed Sale of Shares | 29 | |
17. | AMENDMENT, SUSPENSION OR TERMINATION OF PLAN | 29 | |
18. | MISCELLANEOUS PROVISIONS | 30 | |
18.1 | Repurchase Rights | 30 | |
18.2 | Forfeiture Events | 30 | |
18.3 | Provision of Information | 30 | |
18.4 | Rights as Employee, Consultant or Director | 30 | |
18.5 | Rights as a Shareholder | 30 | |
18.6 | Delivery of Title to Shares | 31 | |
18.7 | Fractional Shares | 31 | |
18.8 | Retirement and Welfare Plans | 31 | |
18.9 | Beneficiary Designation | 31 | |
18.10 | Severability | 31 | |
18.11 | No Constraint on Corporate Action | 31 | |
18.12 | Unfunded Obligation | 31 | |
18.13 | Choice of Law | 31 |
iii
PROTECH HOME MEDICAL CORP.
2021 EQUITY INCENTIVE PLAN
1. | ESTABLISHMENT, PURPOSE AND TERM OF PLAN. |
1.1 Establishment. The Protech Home Medical Corp. 2021 Equity Incentive Plan (the “Plan”) is hereby established effective as of [•], 2021, the date of the approval of the Plan by the Company’s shareholders (the “Effective Date”).
1.2 Purpose. The purpose of the Plan is to advance the interests of the Participating Company Group and its shareholders by providing an incentive to attract, retain and reward persons performing services for the Participating Company Group and by motivating such persons to contribute to the growth and profitability of the Participating Company Group. The Plan seeks to achieve this purpose by providing for Awards in the form of Options, Stock Appreciation Rights, Restricted Share Awards, Restricted Share Units, Performance Shares, Performance Units, Cash-Based Awards and Other Share-Based Awards.
1.3 Term of Plan. The Plan shall continue in effect until its termination by the Committee; provided, however, that all Awards shall be granted, if at all, within ten (10) years from the Effective Date.
2. | DEFINITIONS AND CONSTRUCTION. |
2.1 Definitions. Whenever used herein, the following terms shall have their respective meanings set forth below:
(a) “Affiliate” means (i) a parent entity, other than a Parent Corporation, that directly, or indirectly through one or more intermediary entities, controls the Company or (ii) a subsidiary entity, other than a Subsidiary Corporation, that is controlled by the Company directly or indirectly through one or more intermediary entities. For this purpose, the terms “parent,” “subsidiary,” “control” and “controlled by” shall have the meanings assigned to such terms for the purposes of registration of securities on Form S-8 under the Securities Act.
(b) “Applicable Law” means the laws, rules, regulations and requirements of any country or jurisdiction where Awards are granted under the Plan and the requirements of any stock exchange or quotation system on which the Shares are listed or quoted.
(c) “Award” means any Option, Stock Appreciation Right, Restricted Share Purchase Right, Restricted Share Bonus, Restricted Share Unit, Performance Share, Performance Unit, Cash-Based Award or Other Share-Based Award granted under the Plan.
(d) “Award Agreement” means a written or electronic agreement between the Company and a Participant setting forth the terms, conditions and restrictions applicable to an Award.
(e) “Black-Out Period” means a period of time when pursuant to any policies of the Company, any securities of the Company may not be traded by certain persons designated by the Company.
(f) “Board” means the Board of Directors of the Company.
(g) “Cash-Based Award” means an Award denominated in cash and granted pursuant to Section 11.
(h) “Cashless Exercise” means a Cashless Exercise as defined in Section 6.3(b)(i).
1
(i) “Cause” means, unless such term or an equivalent term is otherwise defined by the applicable Award Agreement or other written agreement between a Participant and a Participating Company applicable to an Award, any of the following: (i) the Participant’s theft, dishonesty, willful misconduct, breach of fiduciary duty for personal profit, or falsification of any Participating Company documents or records; (ii) the Participant’s material failure to abide by a Participating Company’s code of conduct or other policies (including, without limitation, policies relating to confidentiality and reasonable workplace conduct); (iii) the Participant’s unauthorized use, misappropriation, destruction or diversion of any tangible or intangible asset or corporate opportunity of a Participating Company (including, without limitation, the Participant’s improper use or disclosure of a Participating Company’s confidential or proprietary information); (iv) any intentional act by the Participant which has a material detrimental effect on a Participating Company’s reputation or business; (v) the Participant’s repeated failure to perform any reasonable assigned duties after written notice from a Participating Company of, and a reasonable opportunity to cure, such failure; (vi) any material breach by the Participant of any employment, service, non-disclosure, non-competition, non-solicitation or other similar agreement between the Participant and a Participating Company, which breach is not cured pursuant to the terms of such agreement; or (vii) the Participant’s conviction (including any plea of guilty or nolo contendere) of any criminal act involving fraud, dishonesty, misappropriation or moral turpitude, or which impairs the Participant’s ability to perform his or her duties with a Participating Company.
(j) “Change in Control” means, unless such term or an equivalent term is otherwise defined by the applicable Award Agreement or other written agreement between the Participant and a Participating Company applicable to an Award, the occurrence of any one or a combination of the following:
(i) any “person” (as such term is used in Sections 13(d) and 14(d) of the Exchange Act) becomes the “beneficial owner” (as such term is defined in Rule 13d-3 under the Exchange Act), directly or indirectly, of securities of the Company representing more than fifty percent (50%) of the total Fair Market Value or total combined voting power of the Company’s then-outstanding securities entitled to vote generally in the election of Directors; provided, however, that a Change in Control shall not be deemed to have occurred if such degree of beneficial ownership results from any of the following: (A) an acquisition by any person who on the Effective Date is the beneficial owner of more than fifty percent (50%) of such voting power, (B) any acquisition directly from the Company, including, without limitation, pursuant to or in connection with a public offering of securities, (C) any acquisition by the Company, (D) any acquisition by a trustee or other fiduciary under an employee benefit plan of a Participating Company or (E) any acquisition by an entity owned directly or indirectly by the shareholders of the Company in substantially the same proportions as their ownership of the voting securities of the Company; or
(ii) an Ownership Change Event or series of related Ownership Change Events (collectively, a “Transaction”) in which the shareholders of the Company immediately before the Transaction do not retain immediately after the Transaction direct or indirect beneficial ownership of more than fifty percent (50%) of the total combined voting power of the outstanding securities entitled to vote generally in the election of Directors or, in the case of an Ownership Change Event described in Section 2.1(ff)(iii), the entity to which the assets of the Company were transferred (the “Transferee”), as the case may be;
(iii) any “person” acquires, directly or indirectly, securities of the Company to which is attached the right to elect the majority of the directors of the Company; or
(iv) the Company undergoes a liquidation or dissolution;
provided, however, that a Change in Control shall be deemed not to include a transaction described in subsections (i) or (ii) of this Section 2.1(j) in which a majority of the members of the board of directors of the continuing, surviving or successor entity, or parent thereof, immediately after such transaction is comprised of Incumbent Directors.
For purposes of the preceding sentence, indirect beneficial ownership shall include, without limitation, an interest resulting from ownership of the voting securities of one or more corporations or other business entities which own the Company or the Transferee, as the case may be, either directly or through one or more subsidiary corporations or other business entities. The Committee shall determine whether multiple events described in subsections (i), (ii) and (iii) of this Section 2.1(j) are related and to be treated in the aggregate as a single Change in Control, and its determination shall be final, binding and conclusive.
2
(k) “Code” means the United States Internal Revenue Code of 1986, as amended, and any applicable regulations and administrative guidelines promulgated thereunder.
(l) “Committee” means such committee or subcommittee of the Board, if any, duly appointed to administer the Plan and having such powers in each instance as shall be specified by the Board. If, at any time, there is no committee of the Board then authorized or properly constituted to administer the Plan, the Board shall exercise all of the powers of the Committee granted herein, and, in any event, the Board may in its discretion exercise any or all of such powers.
(m) “Common Shares” means the common shares of the Company, as adjusted from time to time in accordance with Section 4.4.
(n) “Company” means Protech Home Medical Corp., a corporation duly amalgamated under the laws of the Province of British Columbia, and its Affiliates, if any, and includes any successor or assignee entity or entities into which the Company may be merged, changed, or consolidated; any entity for whose securities the securities of the Company shall be exchanged; and any assignee of or successor to substantially all of the assets of the Company.
(o) “Consultant” means a person engaged to provide consulting or advisory services (other than as an Employee or a Director) to a Participating Company, provided that the identity of such person, the nature of such services or the entity to which such services are provided would not preclude the Company from offering or selling securities to such person pursuant to the Plan in reliance on registration on Form S-8 under the Securities Act and is consistent with the requirements of TSXV Policy 4.4, if applicable.
(p) “Director” means a member of the Board.
(q) “Disability” means, unless such term or an equivalent term is otherwise defined by the applicable Award Agreement or other written agreement between the Participant and a Participating Company applicable to an Award, the permanent and total disability of the Participant, within the meaning of Section 22(e)(3) of the Code.
(r) “Dividend Equivalent Right” means the right of a Participant, granted at the discretion of the Committee or as otherwise provided by the Plan, to receive a credit for the account of such Participant in an amount equal to the cash dividends paid on one Common Share for each Common Share represented by an Award held by such Participant and is consistent with the requirements of TSXV Policy 4.4, if applicable.
(s) “Employee” means any person treated as an employee (including an Officer or a Director who is also treated as an employee) in the records of a Participating Company and, with respect to any Incentive Stock Option granted to such person, who is an employee for purposes of Section 422 of the Code; provided, however, that neither service as a Director nor payment of a Director’s fee shall be sufficient to constitute employment for purposes of the Plan. The Company shall determine in good faith and in the exercise of its discretion whether an individual has become or has ceased to be an Employee and the effective date of such individual’s employment or termination of employment, as the case may be. For purposes of an individual’s rights, if any, under the terms of the Plan as of the time of the Company’s determination of whether or not the individual is an Employee, all such determinations by the Company shall be final, binding and conclusive as to such rights, if any, notwithstanding that the Company or any court of law or governmental agency subsequently makes a contrary determination as to such individual’s status as an Employee.
(t) “Exchange Act” means the United States Securities Exchange Act of 1934, as amended.
3
(u) “Fair Market Value” means, as of any date, the value of a Common Share or other property as determined by the Committee, in its discretion, or by the Company, in its discretion, if such determination is expressly allocated to the Company herein, subject to the following:
(i) Except as otherwise determined by the Committee, if, on such date, the Common Shares are listed or quoted on a national or regional securities exchange or quotation system, the Fair Market Value of a Common Share shall be the closing price of a Common Share as quoted on the national or regional securities exchange or quotation system constituting the primary market for the Common Shares, as reported in such source as the Company deems reliable. If the relevant date does not fall on a day on which the Common Shares have traded on such securities exchange or quotation system, the date on which the Fair Market Value shall be established shall be the last day on which the Common Shares were so traded or quoted prior to the relevant date, or such other appropriate day as shall be determined by the Committee, in its discretion.
(ii) Notwithstanding the foregoing, the Committee may, in its discretion, determine the Fair Market Value of a Common Share on the basis of the opening, closing, or average of the high and low sale prices of a Common Share on such date or the preceding trading day, the actual sale price of a Common Share received by a Participant, any other reasonable basis using actual transactions in the Common Shares as reported on a national or regional securities exchange or quotation system, or on any other basis consistent with the requirements of Section 409A. The Committee may also determine the Fair Market Value upon the average selling price of the Common Shares (or the average of such selling prices over the specified period weighted based on the volume of trading of the Common Shares on each trading day during such specified period) during a specified period that is within thirty (30) days before or thirty (30) days after such date, provided that, with respect to the grant of an Option or SAR, the commitment to grant such Award based on such valuation method must be irrevocable before the beginning of the specified period. The Committee may vary its method of determination of the Fair Market Value as provided in this Section for different purposes under the Plan to the extent consistent with the requirements of Section 409A.
(iii) If, on such date, the Common Shares are not listed or quoted on a national or regional securities exchange or quotation system, the Fair Market Value of a Common Share shall be as determined by the Committee in good faith without regard to any restriction other than a restriction which, by its terms, will never lapse, and in a manner consistent with the requirements of Section 409A.
(v) “Full Value Award” means any Award settled in Common Shares, other than (i) an Option, (ii) a Stock Appreciation Right, or (iii) a Restricted Share Purchase Right or an Other Share-Based Award under which the Company will receive monetary consideration equal to the Fair Market Value (determined on the effective date of grant) of the shares subject to such Award.
(w) “Incentive Stock Option” means an Option intended to be (as set forth in the Award Agreement) and which qualifies as an incentive stock option within the meaning of Section 422(b) of the Code.
(x) “Incumbent Director” means a director who either (i) is a member of the Board as of the Effective Date or (ii) is elected, or nominated for election, to the Board with the affirmative votes of at least a majority of the Incumbent Directors at the time of such election or nomination (but excluding a director who was elected or nominated in connection with an actual or threatened proxy contest relating to the election of directors of the Company).
(y) “Insider” means an Officer, a Director or other person whose transactions in Common Shares are subject to Section 16 of the Exchange Act, or, if applicable, is otherwise an “insider” as such term is defined by the applicable securities laws of Canada or TSXV Policy 1.1.
4
(z) “Investor Relations Activities” has the meaning set out in TSXV Policy 1.1.
(aa) “Net Exercise” means a Net Exercise as defined in Section 6.3(b)(ii).
(bb) “Nonemployee Director” means a Director who is not an Employee.
(cc) “Nonemployee Director Award” means any Award granted to a Nonemployee Director.
(dd) “Nonstatutory Stock Option” means an Option not intended to be (as set forth in the Award Agreement) or which does not qualify as an incentive stock option within the meaning of Section 422(b) of the Code.
(ee) “Officer” means any person designated by the Board as an officer of the Company and is consistent with the requirements of TSXV Policy 4.4, if applicable.
(ff) “Option” means an Incentive Stock Option or a Nonstatutory Stock Option granted pursuant to the Plan.
(gg) “Other Share-Based Award” means an Award denominated in Common Shares and granted pursuant to Section 11.
(hh) “Ownership Change Event” means the occurrence of any of the following with respect to the Company: (i) the direct or indirect sale or exchange in a single or series of related transactions by the shareholders of the Company of securities of the Company representing more than fifty percent (50%) of the total combined voting power of the Company’s then outstanding securities entitled to vote generally in the election of Directors; (ii) a merger, consolidation or other business combination transaction in which the Company is a party; or (iii) the sale, exchange, or transfer of all or substantially all of the assets of the Company (other than a sale, exchange or transfer to one or more subsidiaries of the Company).
(ii) “Parent Corporation” means any present or future “parent corporation” of the Company, as defined in Section 424(e) of the Code.
(jj) “Participant” means any eligible person, being a bona fide Employee, a Consultant, a Director or an Officer, who has been granted one or more Awards, or a person retained to provide Investor Relations Activities who has been granted one or more Options, as the case may be.
(kk) “Participating Company” means the Company or any Parent Corporation, Subsidiary Corporation or Affiliate.
(ll) “Participating Company Group” means, at any point in time, the Company and all other entities collectively which are then Participating Companies.
(mm) “Performance Award” means an Award of Performance Shares or Performance Units.
(nn) “Performance Award Formula” means, for any Performance Award, a formula or table established by the Committee pursuant to Section 10.3 which provides the basis for computing the value of a Performance Award at one or more levels of attainment of the applicable Performance Goal(s) measured as of the end of the applicable Performance Period.
(oo) “Performance Goal” means a performance goal established by the Committee pursuant to Section 10.3.
(pp) “Performance Period” means a period established by the Committee pursuant to Section 10.3 at the end of which one or more Performance Goals are to be measured.
(qq) “Performance Share” means a right granted to a Participant pursuant to Section 10 to receive a payment equal to the value of a Performance Share, as determined by the Committee, based upon attainment of applicable Performance Goal(s).
5
(rr) “Performance Unit” means a right granted to a Participant pursuant to Section 10 to receive a payment equal to the value of a Performance Unit, as determined by the Committee, based upon attainment of applicable Performance Goal(s).
(ss) “Predecessor Plans” mean the Company’s Stock Option Plan, adopted December 15, 2017, as amended, and the Company’s Restricted Share Unit and Deferred Share Unit Plan, adopted December 15, 2017.
(tt) “Restricted Share Award” means an Award of a Restricted Share Bonus or a Restricted Share Purchase Right.
(uu) “Restricted Share Bonus” means Common Shares granted to a Participant pursuant to Section 8.
(vv) “Restricted Share Purchase Right” means a right to purchase Common Shares granted to a Participant pursuant to Section 8.
(ww) “Restricted Share Unit” means a right granted to a Participant pursuant to Section 9 to receive on a future date or occurrence of a future event a Common Share or cash in lieu thereof, as determined by the Committee.
(xx) “Rule 16b-3” means Rule 16b-3 under the Exchange Act, as amended from time to time, or any successor rule or regulation.
(yy) “SAR” or “Stock Appreciation Right” means a right granted to a Participant pursuant to Section 7 to receive payment, for each Common Share subject to such Award, of an amount equal to the excess, if any, of the Fair Market Value of a Common Share on the date of exercise of the Award over the exercise price thereof.
(zz) “Section 409A” means Section 409A of the Code.
(aaa) “Section 409A Deferred Compensation” means compensation provided pursuant to an Award that constitutes nonqualified deferred compensation within the meaning of Section 409A.
(bbb) “Securities Act” means the United States Securities Act of 1933, as amended.
(ccc) “Service” means a Participant’s employment or service with the Participating Company Group, whether as an Employee, a Director or a Consultant. Unless otherwise provided by the Committee, a Participant’s Service shall not be deemed to have terminated merely because of a change in the capacity in which the Participant renders Service or a change in the Participating Company for which the Participant renders Service, provided that there is no interruption or termination of the Participant’s Service. Furthermore, a Participant’s Service shall not be deemed to have been interrupted or terminated if the Participant takes any military leave, sick leave, or other bona fide leave of absence approved by the Company. However, unless otherwise provided by the Committee, if any such leave taken by a Participant exceeds three (3) months, then on the first (1st) day following the end of such three-month period the Participant’s Service shall be deemed to have terminated, unless the Participant’s right to return to Service is guaranteed by statute or contract. Notwithstanding the foregoing, unless otherwise designated by the Company or required by law, an unpaid leave of absence shall not be treated as Service for purposes of determining vesting under the Participant’s Award Agreement. A Participant’s Service shall be deemed to have terminated either upon an actual termination of Service or upon the business entity for which the Participant performs Service ceasing to be a Participating Company. Subject to the foregoing, the Company, in its discretion, shall determine whether the Participant’s Service has terminated and the effective date of and reason for such termination.
(ddd) “Share Based Compensation Arrangement” for the purposes of the Plan means any option, share option plan, share incentive plan, employee share purchase plan where the Company provides any financial assistance or matching mechanism, stock appreciation right or any other compensation or incentive mechanism involving the issuance or potential issuance of securities from the Company’s treasury, including a share purchase from treasury which is financially assisted by the Company by way of a loan guarantee or otherwise, but for greater certainty does not involve compensation arrangements which do not involve the issuance or potential issuance of securities from the Company’s treasury;
6
(eee) “Subsidiary Corporation” means any present or future “subsidiary corporation” of the Company, as defined in Section 424(f) of the Code or pursuant to the applicable securities laws of Canada.
(fff) “Ten Percent Owner” means a Participant who, at the time an Option is granted to the Participant, owns shares possessing more than ten percent (10%) of the total combined voting power of all classes of shares of a Participating Company (other than an Affiliate) within the meaning of Section 422(b)(6) of the Code.
(ggg) “Trading Compliance Policy” means the written policy of the Company pertaining to the purchase, sale, transfer or other disposition of the Company’s equity securities by Directors, Officers, Employees or other service providers who may possess material, nonpublic information regarding the Company or its securities.
(hhh) “TSXV” means the TSX Venture Exchange.
(iii) “TSXV Policy 1.1” means Policy 1.1 of the TSXV Company Finance Manual, as may be amended from time to time.
(jjj) “TSXV Policy 4.4” means Policy 4.4 of the TSXV Company Finance Manual, as may be amended from time to time.
(kkk) “Vesting Conditions” mean those conditions established in accordance with the Plan or Award Agreement prior to the satisfaction of which an Award or shares subject to an Award remain subject to forfeiture or a repurchase option in favor of the Company exercisable for the Participant’s monetary purchase price, if any, for such shares upon the Participant’s termination of Service or failure of a performance condition to be satisfied.
(lll) “VWAP” means the volume weighted average trading price of the Common Shares on the TSXV calculated by dividing the total value by the total volume of such securities traded for the five trading days immediately preceding the applicable Option exercise date.
2.2 Construction. Captions and titles contained herein are for convenience only and shall not affect the meaning or interpretation of any provision of the Plan. Except when otherwise indicated by the context, the singular shall include the plural and the plural shall include the singular. Use of the term “or” is not intended to be exclusive, unless the context clearly requires otherwise.
3. | ADMINISTRATION. |
3.1 Administration by the Committee. The Plan shall be administered by the Committee. All questions of interpretation of the Plan, of any Award Agreement or of any other form of agreement or other document employed by the Company in the administration of the Plan or of any Award shall be determined by the Committee, and such determinations shall be final, binding and conclusive upon all persons having an interest in the Plan or such Award, unless fraudulent or made in bad faith. Any and all actions, decisions and determinations taken or made by the Committee in the exercise of its discretion pursuant to the Plan or Award Agreement or other agreement thereunder (other than determining questions of interpretation pursuant to the preceding sentence) shall be final, binding and conclusive upon all persons having an interest therein. All expenses incurred in connection with the administration of the Plan shall be paid by the Company.
3.2 Authority of Officers. Any Officer shall have the authority to act on behalf of the Company with respect to any matter, right, obligation, determination or election that is the responsibility of or that is allocated to the Company herein, provided that the Officer has apparent authority with respect to such matter, right, obligation, determination or election.
7
3.3 Administration with Respect to Insiders. With respect to participation by Insiders in the Plan, at any time that any class of equity security of the Company is registered pursuant to Section 12 of the Exchange Act, the Plan shall be administered in compliance with the requirements, if any, of Rule 16b-3.
3.4 Powers of the Committee. In addition to any other powers set forth in the Plan and subject to the provisions of the Plan and TSXV Policy 4.4, the Committee shall have the full and final power and authority, in its discretion:
(a) to determine the persons to whom, and the time or times at which, Awards shall be granted and the number of Common Shares, units or monetary value to be subject to each Award;
(b) to determine the type of Award granted;
(c) to determine the Fair Market Value of the Common Shares or other property;
(d) to determine the terms, conditions and restrictions applicable to each Award (which need not be identical) and any shares acquired pursuant thereto, including, without limitation, (i) the exercise or purchase price of shares pursuant to any Award, (ii) the method of payment for shares purchased pursuant to any Award, (iii) the method for satisfaction of any tax withholding obligation arising in connection with any Award, including by the withholding or delivery of Common Shares, (iv) the timing, terms and conditions of the exercisability or vesting of any Award or any shares acquired pursuant thereto, (v) the Performance Measures, Performance Period, Performance Award Formula and Performance Goals applicable to any Award and the extent to which such Performance Goals have been attained, (vi) the time of expiration of any Award, (vii) the effect of any Participant’s termination of Service on any of the foregoing, and (viii) all other terms, conditions and restrictions applicable to any Award or shares acquired pursuant thereto not inconsistent with the terms of the Plan;
(e) to determine whether an Award will be settled in Common Shares or, if and to the extent permitted by Applicable Law, cash, other property or in any combination thereof, as applicable;
(f) to approve one or more forms of Award Agreement;
(g) to amend, modify, extend, cancel or renew any Award or to waive any restrictions or conditions applicable to any Award or any shares acquired pursuant thereto, subject in all cases to the limitations set out in TSXV Policy 4.4;
(h) to accelerate, continue, extend or defer the exercisability or vesting of any Award or any shares acquired pursuant thereto, including with respect to the period following a Participant’s termination of Service;
(i) to prescribe, amend or rescind rules, guidelines and policies relating to the Plan, or to adopt sub-plans or supplements to, or alternative versions of, the Plan, including, without limitation, as the Committee deems necessary or desirable to comply with the laws of, or to accommodate the tax policy, accounting principles or custom of, foreign jurisdictions whose residents may be granted Awards, or to comply with the policies of the TSXV; and
(j) to correct any defect, supply any omission or reconcile any inconsistency in the Plan or any Award Agreement and to make all other determinations and take such other actions with respect to the Plan or any Award as the Committee may deem advisable to the extent not inconsistent with the provisions of the Plan or Applicable Law.
3.5 Option or SAR Repricing. Without the affirmative vote of disinterested holders of a majority of the Common Shares cast in person or by proxy at a meeting of the shareholders of the Company at which a quorum representing a majority of all outstanding Common Shares are present or represented by proxy, the Committee shall not approve a program providing for either (a) the cancellation of outstanding Options or SARs having exercise prices per share greater than the then Fair Market Value of a Common Share (“Underwater Awards”) and the grant in substitution therefor of new Options or SARs having a lower exercise price, Full Value Awards or payments in cash, or (b) the amendment of outstanding Underwater Awards to reduce the exercise price thereof. This Section shall not be construed to apply to (i) “issuing or assuming a stock option in a transaction to which Section 424(a) applies,” within the meaning of Section 424 of the Code, (ii) adjustments pursuant to the assumption of or substitution for an Option or SAR in a manner that would comply with Section 409A, or (iii) an adjustment pursuant to Section 4.4.
8
3.6 Indemnification. In addition to such other rights of indemnification as they may have as members of the Board or the Committee or as officers or employees of the Participating Company Group, to the extent permitted by Applicable Law, members of the Board or the Committee and any officers or employees of the Participating Company Group to whom authority to act for the Board, the Committee or the Company is delegated shall be indemnified by the Company against all reasonable expenses, including attorneys’ fees, actually and necessarily incurred in connection with the defense of any action, suit or proceeding, or in connection with any appeal therein, to which they or any of them may be a party by reason of any action taken or failure to act under or in connection with the Plan, or any right granted hereunder, and against all amounts paid by them in settlement thereof (provided such settlement is approved by independent legal counsel selected by the Company) or paid by them in satisfaction of a judgment in any such action, suit or proceeding, except in relation to matters as to which it shall be adjudged in such action, suit or proceeding that such person is liable for gross negligence, bad faith or intentional misconduct in duties; provided, however, that within sixty (60) days after the institution of such action, suit or proceeding, such person shall offer to the Company, in writing, the opportunity at its own expense to handle and defend the same.
4. | SHARES SUBJECT TO PLAN. |
4.1 Maximum Number of Shares Issuable. Subject to adjustment as provided in Sections 4.2, 4.3 and 4.4, the maximum aggregate number of Common Shares that may be available and reserved for issuance, at any time, under this Plan shall be equal to [insert number that is 20% of i/o Common Shares on the effective date] shares, inclusive of Common Shares that may become available for issuance under the Plan pursuant to Section 4.2. For greater certainty and notwithstanding anything else contained herein, the maximum number of Common Shares available and reserved for issuance, at any time, under this Plan, including, without limitation, Common Shares that may be issued under the Plan pursuant to the exercise of Incentive Stock Options as set out in Section 5.4(a) hereof, together with any other Security Based Compensation Arrangement adopted by the Company, including the Predecessor Plans, shall not exceed twenty percent (20%) of the issued and outstanding Common Shares on the date hereof.
4.2 Adjustment for Unissued or Forfeited Predecessor Plan Shares. The maximum aggregate number of Common Shares that may be issued under the Plan as set forth in Section Error! Reference source not found. shall include from time to time:
(a) the aggregate number of Common Shares that remain available for the future grant of awards under the Predecessor Plans immediately prior to their termination as of the Effective Date;
(b) the number of Common Shares subject to that portion of any option or other award outstanding pursuant to a Predecessor Plan as of the Effective Date which, on or after the Effective Date, expires or is terminated or canceled for any reason without having been exercised or settled in full; and
(c) the number of Common Shares acquired pursuant to the Predecessor Plans subject to forfeiture or repurchase by the Company for an amount not greater than the Participant’s purchase price which, on or after the Effective Date, are so forfeited or repurchased.
4.3 Share Counting. If an outstanding Award for any reason expires or is terminated or canceled without having been exercised or settled in full, or if Common Shares acquired pursuant to an Award subject to forfeiture or repurchase are forfeited or repurchased by the Company for an amount not greater than the Participant’s purchase price, the Common Shares allocable to the terminated portion of such Award or such forfeited or repurchased Common Shares shall again be available for issuance under the Plan. Common Shares shall not be deemed to have been issued pursuant to the Plan with respect to any portion of an Award that is settled in cash. Upon payment in Common Shares pursuant to the exercise of an SAR, the number of shares available for issuance under the Plan shall be reduced by the gross number of shares for which the SAR is exercised. If the exercise price of an Option is paid by tender to the Company, or attestation to the ownership, of Common Shares owned by the Participant, or by means of a Cashless Exercise, the number of shares available for issuance under the Plan shall be reduced by the gross number of shares for which the Option is exercised. Shares purchased in the open market with proceeds from the exercise of Options shall not be added to the limit set forth in Section 4.1. Shares withheld or reacquired by the Company in satisfaction of tax withholding obligations pursuant to the exercise or settlement of Options or SARs pursuant to Section 16.2 shall not again be available for issuance under the Plan. Shares withheld or reacquired by the Company in satisfaction of tax withholding obligations pursuant to the vesting or settlement of Full Value Awards pursuant to Section 16.2 shall again become available for issuance under the Plan. Notwithstanding anything herein to the contrary, any Common Shares forfeited, cancelled or otherwise not issued for any reason under the awards of any Predecessor Plan shall be available for grants under this Plan.
9
4.4 Adjustments for Changes in Capital Structure. Subject to any required action by the shareholders of the Company and the requirements of Applicable Law, including Sections 409A and 424 of the Code to the extent applicable, in the event of any change in the Common Shares effected without receipt of consideration by the Company, whether through merger, consolidation, reorganization, reincorporation, recapitalization, reclassification, stock dividend, stock split, reverse stock split, split-up, split-off, spin-off, combination of shares, exchange of shares, or similar change in the capital structure of the Company, or in the event of payment of a dividend or distribution to the shareholders of the Company in a form other than Common Shares (excepting regular, periodic cash dividends) that has a material effect on the Fair Market Value of Common Shares, appropriate and proportionate adjustments shall be made in the number and kind of shares subject to the Plan and to any outstanding Awards, the Award limits set forth in Section 5.3 and Section 5.4, and in the exercise or purchase price per share under any outstanding Award in order to prevent dilution or enlargement of Participants’ rights under the Plan. For purposes of the foregoing, conversion of any convertible securities of the Company shall not be treated as “effected without receipt of consideration by the Company.” If a majority of the shares which are of the same class as the shares that are subject to outstanding Awards are exchanged for, converted into, or otherwise become (whether or not pursuant to an Ownership Change Event) shares of another corporation (the “New Shares”), the Committee may unilaterally amend the outstanding Awards to provide that such Awards are for New Shares. In the event of any such amendment, the number of shares subject to, and the exercise or purchase price per share of, the outstanding Awards shall be adjusted in a fair and equitable manner as determined by the Committee, in its discretion. Any fractional share resulting from an adjustment pursuant to this Section shall be rounded down to the nearest whole number and the exercise or purchase price per share shall be rounded up to the nearest whole cent. In no event may the exercise or purchase price, if any, under any Award be decreased to an amount less than the par value, if any, of the shares subject to such Award. The Committee in its discretion, may also make such adjustments in the terms of any Award to reflect, or related to, such changes in the capital structure of the Company or distributions as it deems appropriate, including modification of Performance Goals, Performance Award Formulas and Performance Periods. The adjustments determined by the Committee pursuant to this Section shall be final, binding and conclusive.
4.5 Assumption or Substitution of Awards. The Committee may, without affecting the number of Common Shares reserved or available hereunder, authorize the issuance or assumption of benefits under this Plan in connection with any merger, consolidation, acquisition of property or shares, or reorganization upon such terms and conditions as it may deem appropriate, subject to compliance with Applicable Law, including Section 409A and any other applicable provisions of the Code. In addition, subject to compliance with Applicable Law, and listing requirements, shares available for grant under a shareholder approved plan of an acquired company (as appropriately adjusted to reflect the transaction) may be used for awards under the Plan to individuals who were not Employees or Directors of the Participating Company Group prior to the transaction and shall not reduce the number of shares otherwise available for issuance under the Plan.
5. | ELIGIBILITY, PARTICIPATION AND AWARD LIMITATIONS. |
5.1 Persons Eligible for Awards. Awards may be granted only to Employees, Consultants, Directors and Officers; provided, however, that no Consultant engaged in Investor Relations Activities on behalf of the Company which constitute services in connection with the offer or sale of securities in a capital-raising transaction or who directly or indirectly promotes or maintains a market for the Company’s securities shall be eligible to participate in the Plan to the extent that either (a) such Consultant is a resident of the United States at a time when the Company is relying on an exemption from Securities Act registration pursuant to Rule 701 thereunder with respect to securities issued to such Consultant pursuant to the Plan or (b) the Company’s Common Shares are listed for trading on the NASDAQ Stock Market and the securities issued to such Consultant (regardless of residence) pursuant to the Plan are registered on Form S-8 under the Securities Act.
10
5.2 Participation in the Plan. Awards are granted solely at the discretion of the Committee. Eligible persons may be granted more than one Award. However, eligibility in accordance with this Section shall not entitle any person to be granted an Award, or, having been granted an Award, to be granted an additional Award.
5.3 Voluntary Participation. Participation in the Plan shall be entirely voluntary and any decision not to participate shall not affect a Participant’s relationship or employment with the Company. Notwithstanding any express or implied term of this Plan to the contrary, the granting of an Award pursuant to the Plan shall in no way be construed as a guarantee of employment by the Company to the Participant.
5.4 Incentive Stock Option Limitations.
(a) Maximum Number of Shares Issuable Pursuant to Incentive Stock Options. Subject to adjustment as provided in Section 4.4, the maximum aggregate number of Common Shares that may be issued under the Plan pursuant to the exercise of Incentive Stock Options shall not exceed [insert number from section 4.1] shares. The maximum aggregate number of Common Shares that may be issued under the Plan pursuant to all Awards other than Incentive Stock Options shall be the number of shares determined in accordance with Section 4.1, subject to adjustment as provided in Sections 4.2, 4.3 and 4.4.
(b) Persons Eligible. An Incentive Stock Option may be granted only to a person who, on the effective date of grant, is an Employee of the Company, a Parent Corporation or a Subsidiary Corporation (each being an “ISO-Qualifying Corporation”). Any person who is not an Employee of an ISO-Qualifying Corporation on the effective date of the grant of an Option to such person may be granted only a Nonstatutory Stock Option.
(c) Fair Market Value Limitation. To the extent that options designated as Incentive Stock Options (granted under all share plans of the Participating Company Group, including the Plan) become exercisable by a Participant for the first time during any calendar year for shares having a Fair Market Value greater than One Hundred Thousand Dollars ($100,000), the portion of such options which exceeds such amount shall be treated as Nonstatutory Stock Options. For purposes of this Section, options designated as Incentive Stock Options shall be taken into account in the order in which they were granted, and the Fair Market Value of the shares shall be determined as of the time the option with respect to such shares is granted. If the Code is amended to provide for a limitation different from that set forth in this Section, such different limitation shall be deemed incorporated herein effective as of the date and with respect to such Options as required or permitted by such amendment to the Code. If an Option is treated as an Incentive Stock Option in part and as a Nonstatutory Stock Option in part by reason of the limitation set forth in this Section, the Participant may designate which portion of such Option the Participant is exercising. In the absence of such designation, the Participant shall be deemed to have exercised the Incentive Stock Option portion of the Option first. Upon exercise of the Option, shares issued pursuant to each such portion shall be separately identified.
(d) Participation Limits. Subject to adjustment pursuant to provisions of Section 4.4 hereof, the aggregate number of Common Shares (i) issued to Insiders under the Plan together with any other Share Based Compensation Arrangement, including the Predecessor Plans, within any 12 month period and (ii) issuable to Insiders at any time under the Plan together with any other Share Based Compensation Arrangement, including the Predecessor Plans, shall in each case not exceed 10% of the total issued and outstanding Common Shares from time to time.
11
(e) Additional TSXV Limits. In addition to the requirements in Section 4.1 and Section 5.4 and notwithstanding any other provision of this Plan, at all times when the Company is listed on the TSXV:
(i) the maximum aggregate number of Common Shares that are issuable pursuant to Awards issued or granted, as applicable, to any one Participant under the Plan, together with all other Share Based Compensation, granted or issued in any twelve (12) month period to any one Participant must not exceed 5% of the Common Shares , calculated as at the date any Award is granted or issued to the Participant (unless the Company has obtained the requisite disinterested shareholder approval);
(ii) the maximum aggregate number of Common Shares that are issuable pursuant to Awards issued or granted, as applicable, to any one Participant that is a Consultant under the Plan, together with all other Share Based Compensation, in any twelve (12) month period must not exceed 2% of the Common Shares, calculated as at the date any Award is granted or issued to the Participant;
(iii) persons who provide Investor Relations Activities may not receive any Awards other than Options;
(iv) the maximum aggregate number of Common Shares that are issuable pursuant to all Options granted or issued in any twelve (12) month period to all Participants retained to provide Investor Relations Activities must not exceed 2% of the Common Shares, calculated as at the date any Option is granted to any such Participant.
(v) Options issued to any person retained to provide Investor Relations Activities must vest in stages over a period of not less than 12 months such that: (A) no more than 1/4 of the Options vest no sooner than three months after the Options were granted; (B) no more than another 1/4 of the Options vest no sooner than six months after the Options were granted; (C) no more than another 1/4 of the Options vest no sooner than nine months after the Options were granted; and (D) no more than another 1/4 of the Options vest no sooner than 12 months after the Options were granted.
5.5 Nonemployee Director Award Limit. Notwithstanding any other provision of the Plan to the contrary, the aggregate grant date fair value (computed as of the date of grant in accordance with generally accepted accounting principles in the United States) of all Awards granted to any Nonemployee Director during any fiscal year of the Company, taken together with any cash compensation paid to such Nonemployee Director during such fiscal year, shall not exceed USD$750,000.
6. | STOCK OPTIONS. |
Options shall be evidenced by Award Agreements specifying the number of Common Shares covered thereby, in such form as the Committee shall establish. Such Award Agreements may incorporate all or any of the terms of the Plan by reference and shall comply with and be subject to the following terms and conditions:
6.1 Exercise Price. The exercise price for each Option shall be established in the discretion of the Committee; provided, however, that (a) the exercise price per share shall be not less than the Fair Market Value of a Common Share on the effective date of grant of the Option and (b) no Incentive Stock Option granted to a Ten Percent Owner shall have an exercise price per share less than one hundred ten percent (100%) of the Fair Market Value of a Common Share on the effective date of grant of the Option. Notwithstanding the foregoing, an Option (whether an Incentive Stock Option or a Nonstatutory Stock Option) may be granted with an exercise price less than the minimum exercise price set forth above if such Option is granted pursuant to an assumption or substitution for another option in a manner that would qualify under the provisions of Section 409A or Section 424(a) of the Code.
6.2 Exercisability and Term of Options. Options shall be exercisable at such time or times, or upon such event or events, and subject to such terms, conditions, performance criteria and restrictions as shall be determined by the Committee and set forth in the Award Agreement evidencing such Option; provided, however, that (a) no Option shall be exercisable after the expiration of ten (10) years after the effective date of grant of such Option, (b) no Incentive Stock Option granted to a Ten Percent Owner shall be exercisable after the expiration of five (5) years after the effective date of grant of such Option and (c) no Option granted to an Employee who is a non-exempt employee for purposes of the Fair Labor Standards Act of 1938, as amended, shall be first exercisable until at least six (6) months following the date of grant of such Option (except in the event of such Employee’s death, disability or retirement, upon a Change in Control, or as otherwise permitted by the Worker Economic Opportunity Act). Subject to the foregoing, unless otherwise specified by the Committee in the grant of an Option, each Option shall terminate ten (10) years after the effective date of grant of the Option, unless earlier terminated in accordance with its provisions. Notwithstanding the foregoing, should the expiration date for an Option held by a Participant who is a resident of Canada fall within a Black-Out Period, such expiration date shall be automatically extended without any further act or formality to that date which is the 10th business day after the end of the Black-Out Period, such 10th business day to be considered the expiration date for such Option for all purposes under the Plan.
12
6.3 Payment of Exercise Price.
(a) Forms of Consideration Authorized. Except as otherwise provided below, payment of the exercise price for the number of Common Shares being purchased pursuant to any Option shall be made (i) in cash, by check or in cash equivalent; (ii) if permitted by the Committee and Applicable Law, and subject to the limitations contained in Section 6.3(b), by means of a Cashless Exercise, a Net Exercise, or by such other consideration as may be approved by the Committee from time to time to the extent permitted by Applicable Law, or (iv) by any combination thereof. The Committee may at any time or from time to time grant Options which do not permit all of the foregoing forms of consideration to be used in payment of the exercise price or which otherwise restrict one or more forms of consideration.
(b) Limitations on Forms of Consideration.
(i) Cashless Exercise. A “Cashless Exercise” means the delivery of a properly executed notice of exercise together with irrevocable instructions to a broker providing for the assignment to the Company of the proceeds of a sale or loan with respect to some or all of the shares being acquired upon the exercise of the Option (including, without limitation, through an exercise complying with the provisions of Regulation T as promulgated from time to time by the Board of Governors of the United States Federal Reserve System). The Company reserves, at any and all times, the right, in the Company’s sole and absolute discretion, to establish, decline to approve or terminate any program or procedures for the exercise of Options by means of a Cashless Exercise, including with respect to one or more Participants specified by the Company notwithstanding that such program or procedures may be available to other Participants.
(ii) Net Exercise. A “Net Exercise” means where an Option is exercised without the Participant making any cash payment, such that the Company will not receive any cash from the exercise of the Option, and instead the Participant receives only the number of underlying Common Shares that is the equal to the quotient obtained by dividing:
A. | the product of the number of Options being exercised multiplied by the difference between the VWAP of the underlying Common Shares and the exercise price of the subject Options; by |
B. | the VWAP of the Common Listed Shares. |
6.4 Effect of Termination of Service.
(a) Option Exercisability. Subject to earlier termination of the Option as otherwise provided by this Plan and unless otherwise provided by the Committee, an Option shall be exercisable after the Participant’s termination of Service to the extent it is then vested only during the applicable time period determined in accordance with this Section and thereafter shall terminate.
(i) Disability. If the Participant’s Service terminates because of the Disability of the Participant, the Option, to the extent unexercised and exercisable for vested shares on the date on which the Participant’s Service terminated, may be exercised by the Participant (or the Participant’s guardian or legal representative) at any time prior to the expiration of twelve (12) months (or such other period not less than six months provided by the Award Agreement) after the date on which the Participant’s Service terminated, but in any event no later than the date of expiration of the Option’s term as set forth in the Award Agreement evidencing such Option (the “Option Expiration Date”).
13
(ii) Death. If the Participant’s Service terminates because of the death of the Participant, the Option, to the extent unexercised and exercisable for vested shares on the date on which the Participant’s Service terminated, may be exercised by the Participant’s legal representative or other person who acquired the right to exercise the Option by reason of the Participant’s death at any time prior to the expiration of twelve (12) months (or such other period not less than six months provided by the Award Agreement) after the date on which the Participant’s Service terminated, but in any event no later than the Option Expiration Date. The Participant’s Service shall be deemed to have terminated on account of death if the Participant dies within three (3) months (or such longer or shorter period provided by the Award Agreement) after the Participant’s termination of Service.
(iii) Termination for Cause. Notwithstanding any other provision of the Plan to the contrary, if the Participant’s Service is terminated for Cause or if, following the Participant’s termination of Service and during any period in which the Option otherwise would remain exercisable, the Participant engages in any act that would constitute Cause, the Option shall terminate in its entirety and cease to be exercisable immediately upon such termination of Service or act.
(iv) Other Termination of Service. Subject to Section 6.4(a)(iii), if an Participant ceases to be an eligible Participant (other than as provided in section 6.4(a)(ii) or (ii), any Options held by the Participant on the date such Participant ceased to be an eligible Participant, which have vested pursuant to this Plan, shall be exercisable only to the extent that the Participant was entitled to exercise the Option at the date such Participant ceased to be an eligible Participant and only for thirty (30) days after the date such Participant ceased to be an eligible Participant, subject to the Committee’s discretion to extend such period for up to one (1) year, or prior to the Option Expiration Date in respect thereof, whichever is sooner. Notwithstanding the foregoing, the Committee, in its discretion, may resolve that up to all of the Options held by an Participant on the date the Participant ceased to be an eligible Participant which have not yet vested shall vest immediately upon such date.
(b) Extension if Exercise Prevented by Law. Notwithstanding the foregoing, other than termination of Service for Cause, if the exercise of an Option within the applicable time periods set forth in Section 6.4(a) is prevented by the provisions of Section 14 below, the Option shall remain exercisable until the later of (i) thirty (30) days after the date such exercise first would no longer be prevented by such provisions or (ii) the end of the applicable time period under Section 6.4(a), but in any event no later than the Option Expiration Date.
6.5 Transferability of Options. During the lifetime of the Participant, an Option shall be exercisable only by the Participant or the Participant’s guardian or legal representative. An Option shall not be subject in any manner to anticipation, alienation, sale, exchange, transfer, assignment, pledge, encumbrance, or garnishment by creditors of the Participant or the Participant’s beneficiary, except transfer by will or by the laws of descent and distribution.
14
7. | STOCK APPRECIATION RIGHTS. |
Stock Appreciation Rights shall be evidenced by Award Agreements specifying the number of Common Shares subject to the Award, in such form as the Committee shall establish. Such Award Agreements may incorporate all or any of the terms of the Plan by reference and shall comply with and be subject to the following terms and conditions:
7.1 Types of SARs Authorized. SARs may be granted in tandem with all or any portion of a related Option (a “Tandem SAR”) or may be granted independently of any Option (a “Freestanding SAR”). A Tandem SAR may only be granted concurrently with the grant of the related Option.
7.2 Exercise Price. The exercise price for each SAR shall be established in the discretion of the Committee; provided, however, that (a) the exercise price per share subject to a Tandem SAR shall be the exercise price per share under the related Option and (b) the exercise price per share subject to a Freestanding SAR shall be not less than the Fair Market Value of a Common Share on the effective date of grant of the SAR. Notwithstanding the foregoing, an SAR may be granted with an exercise price lower than the minimum exercise price set forth above if such SAR is granted pursuant to an assumption or substitution for another stock appreciation right in a manner that would qualify under the provisions of Section 409A of the Code.
7.3 Exercisability and Term of SARs.
(a) Tandem SARs. Tandem SARs shall be exercisable only at the time and to the extent, and only to the extent, that the related Option is exercisable, subject to such provisions as the Committee may specify where the Tandem SAR is granted with respect to less than the full number of Common Shares subject to the related Option. The Committee may, in its discretion, provide in any Award Agreement evidencing a Tandem SAR that such SAR may not be exercised without the advance approval of the Company and, if such approval is not given, then the Option shall nevertheless remain exercisable in accordance with its terms. A Tandem SAR shall terminate and cease to be exercisable no later than the date on which the related Option expires or is terminated or canceled. Upon the exercise of a Tandem SAR with respect to some or all of the shares subject to such SAR, the related Option shall be canceled automatically as to the number of shares with respect to which the Tandem SAR was exercised. Upon the exercise of an Option related to a Tandem SAR as to some or all of the shares subject to such Option, the related Tandem SAR shall be canceled automatically as to the number of shares with respect to which the related Option was exercised.
(b) Freestanding SARs. Freestanding SARs shall be exercisable at such time or times, or upon such event or events, and subject to such terms, conditions, performance criteria and restrictions as shall be determined by the Committee and set forth in the Award Agreement evidencing such SAR; provided, however, that (i) no Freestanding SAR shall be exercisable after the expiration of ten (10) years after the effective date of grant of such SAR and (ii) no Freestanding SAR granted to an Employee who is a non-exempt employee for purposes of the Fair Labor Standards Act of 1938, as amended, shall be first exercisable until at least six (6) months following the date of grant of such SAR (except in the event of such Employee’s death, disability or retirement, upon a Change in Control, or as otherwise permitted by the Worker Economic Opportunity Act). Subject to the foregoing, unless otherwise specified by the Committee in the grant of a Freestanding SAR, each Freestanding SAR shall terminate ten (10) years after the effective date of grant of the SAR, unless earlier terminated in accordance with its provisions.
7.4 Exercise of SARs. Upon the exercise (or deemed exercise pursuant to Section 7.5) of an SAR, the Participant (or the Participant’s legal representative or other person who acquired the right to exercise the SAR by reason of the Participant’s death) shall be entitled to receive payment of an amount for each share with respect to which the SAR is exercised equal to the excess, if any, of the Fair Market Value of a Common Share on the date of exercise of the SAR over the exercise price. Payment of such amount shall be made (a) in the case of a Tandem SAR, solely in Common Shares in a lump sum upon the date of exercise of the SAR and (b) in the case of a Freestanding SAR, in cash, Common Shares, or any combination thereof as determined by the Committee, in a lump sum upon the date of exercise of the SAR. When payment is to be made in Common Shares, the number of shares to be issued shall be determined on the basis of the Fair Market Value of a Common Share on the date of exercise of the SAR. For purposes of Section 7, an SAR shall be deemed exercised on the date on which the Company receives notice of exercise from the Participant or as otherwise provided in Section 7.5.
15
7.5 Deemed Exercise of SARs. If, on the date on which an SAR would otherwise terminate or expire, the SAR by its terms remains exercisable immediately prior to such termination or expiration and, if so exercised, would result in a payment to the holder of such SAR, then any portion of such SAR which has not previously been exercised shall automatically be deemed to be exercised as of such date with respect to such portion.
7.6 Effect of Termination of Service. Subject to earlier termination of the SAR as otherwise provided herein and unless otherwise provided by the Committee, an SAR shall be exercisable after a Participant’s termination of Service only to the extent and during the applicable time period determined in accordance with Section 6.4 (treating the SAR as if it were an Option) and thereafter shall terminate.
7.7 Transferability of SARs. During the lifetime of the Participant, an SAR shall be exercisable only by the Participant or the Participant’s guardian or legal representative. An SAR shall not be subject in any manner to anticipation, alienation, sale, exchange, transfer, assignment, pledge, encumbrance, or garnishment by creditors of the Participant or the Participant’s beneficiary, except transfer by will or by the laws of descent and distribution.
8. | RESTRICTED SHARE AWARDS. |
Restricted Share Awards shall be evidenced by Award Agreements specifying whether the Award is a Restricted Share Bonus or a Restricted Share Purchase Right and the number of Common Shares subject to the Award, in such form as the Committee shall establish. Such Award Agreements may incorporate all or any of the terms of the Plan by reference and shall comply with and be subject to the following terms and conditions:
8.1 Types of Restricted Share Awards Authorized. Restricted Share Awards may be granted in the form of either a Restricted Share Bonus or a Restricted Share Purchase Right. Restricted Share Awards may be granted upon such conditions as the Committee shall determine, including, without limitation, upon the attainment of one or more Performance Goals described in Section 10.4. If either the grant of or satisfaction of Vesting Conditions applicable to a Restricted Share Award is to be contingent upon the attainment of one or more Performance Goals, the Committee shall follow procedures substantially equivalent to those set forth in Sections 10.3 through 10.5(a).
8.2 Purchase Price. The purchase price for Common Shares issuable under each Restricted Share Purchase Right shall be established by the Committee in its discretion. No monetary payment (other than applicable tax withholding) shall be required as a condition of receiving Common Shares pursuant to a Restricted Share Bonus, the consideration for which shall be services actually rendered to a Participating Company or for its benefit. Notwithstanding the foregoing, if required by Applicable Law, the Participant shall furnish consideration in the form of cash or past services rendered to a Participating Company or for its benefit having a value not less than the par value of the Common Shares subject to a Restricted Share Award.
8.3 Purchase Period. A Restricted Share Purchase Right shall be exercisable within a period established by the Committee, which shall in no event exceed thirty (30) days from the effective date of the grant of the Restricted Share Purchase Right.
8.4 Payment of Purchase Price. Except as otherwise provided below, payment of the purchase price for the number of Common Shares being purchased pursuant to any Restricted Share Purchase Right shall be made (a) in cash, by check or in cash equivalent, (b) by such other consideration as may be approved by the Committee from time to time to the extent permitted by Applicable Law, or (c) by any combination thereof.
8.5 Vesting and Restrictions on Transfer. Shares issued pursuant to any Restricted Share Award may (but need not) be made subject to Vesting Conditions based upon the satisfaction of such Service requirements, conditions, restrictions or performance criteria, including, without limitation, Performance Goals as described in Section 10.4, as shall be established by the Committee and set forth in the Award Agreement evidencing such Award. During any period in which shares acquired pursuant to a Restricted Share Award remain subject to Vesting Conditions, such shares may not be sold, exchanged, transferred, pledged, assigned or otherwise disposed of other than pursuant to an Ownership Change Event or as provided in Section 8.8. The Committee, in its discretion, may provide in any Award Agreement evidencing a Restricted Share Award that, if the satisfaction of Vesting Conditions with respect to any shares subject to such Restricted Share Award would otherwise occur on a day on which the sale of such shares would violate the provisions of the Trading Compliance Policy, then satisfaction of the Vesting Conditions automatically shall be determined on the next trading day on which the sale of such shares would not violate the Trading Compliance Policy. Upon request by the Company, each Participant shall execute any agreement evidencing such transfer restrictions prior to the receipt of Common Shares hereunder and shall promptly present to the Company any and all certificates representing Common Shares acquired hereunder for the placement on such certificates of appropriate legends evidencing any such transfer restrictions.
16
8.6 Voting Rights; Dividends and Distributions. Except as provided in this Section, Section 8.5 and any Award Agreement, during any period in which shares acquired pursuant to a Restricted Share Award remain subject to Vesting Conditions, the Participant shall have all of the rights of a shareholder of the Company holding Common Shares, including the right to vote such shares and to receive all dividends and other distributions paid with respect to such shares; provided, however, that such dividends and distributions shall be subject to the same Vesting Conditions as the shares subject to the Restricted Share Award with respect to which such dividends or distributions were declared and shall be paid to the Participant at the time such shares vest but in any event to later than the 15th day of the third month following the calendar year in which such shares vest. In the event of a dividend or distribution paid in Common Shares or other property or any other adjustment made upon a change in the capital structure of the Company as described in Section 4.4, any and all new, substituted or additional securities or other property (other than regular, periodic cash dividends) to which the Participant is entitled by reason of the Participant’s Restricted Share Award shall be immediately subject to the same Vesting Conditions as the shares subject to the Restricted Share Award with respect to which such dividends or distributions were paid or adjustments were made.
8.7 Effect of Termination of Service. Unless otherwise provided by the Committee in the Award Agreement evidencing a Restricted Share Award, if a Participant’s Service terminates for any reason, whether voluntary or involuntary (including the Participant’s death or disability), then (a) the Company shall have the option to repurchase for the purchase price paid by the Participant any shares acquired by the Participant pursuant to a Restricted Share Purchase Right which remain subject to Vesting Conditions as of the date of the Participant’s termination of Service and (b) the Participant shall forfeit to the Company any shares acquired by the Participant pursuant to a Restricted Share Bonus which remain subject to Vesting Conditions as of the date of the Participant’s termination of Service. The Company shall have the right to assign at any time any repurchase right it may have, whether or not such right is then exercisable, to one or more persons as may be selected by the Company.
8.8 Nontransferability of Restricted Share Award Rights. Rights to acquire Common Shares pursuant to a Restricted Share Award shall not be subject in any manner to anticipation, alienation, sale, exchange, transfer, assignment, pledge, encumbrance or garnishment by creditors of the Participant or the Participant’s beneficiary, except transfer by will or the laws of descent and distribution. All rights with respect to a Restricted Share Award granted to a Participant hereunder shall be exercisable during his or her lifetime only by such Participant or the Participant’s guardian or legal representative.
9. | RESTRICTED SHARE UNITS. |
Restricted Share Unit Awards shall be evidenced by Award Agreements specifying the number of Restricted Share Units subject to the Award, in such form as the Committee shall establish. Such Award Agreements may incorporate all or any of the terms of the Plan by reference and shall comply with and be subject to the following terms and conditions:
9.1 Grant of Restricted Share Unit Awards. Restricted Share Unit Awards may be granted upon such conditions as the Committee shall determine, including, without limitation, upon the attainment of one or more Performance Goals described in Section 10.4. If either the grant of a Restricted Share Unit Award or the Vesting Conditions with respect to such Award is to be contingent upon the attainment of one or more Performance Goals, the Committee shall follow procedures substantially equivalent to those set forth in Sections 10.3 through 10.5(a).
17
9.2 Purchase Price. No monetary payment (other than applicable tax withholding, if any) shall be required as a condition of receiving a Restricted Share Unit Award, the consideration for which shall be services actually rendered to a Participating Company or for its benefit. Notwithstanding the foregoing, if required by Applicable Law, the Participant shall furnish consideration in the form of cash or past services rendered to a Participating Company or for its benefit having a value not less than the par value of the Common Shares issued upon settlement of the Restricted Share Unit Award.
9.3 Vesting. Restricted Share Unit Awards may (but need not) be made subject to Vesting Conditions based upon the satisfaction of such Service requirements, conditions, restrictions or performance criteria, including, without limitation, Performance Goals as described in Section 10.4, as shall be established by the Committee and set forth in the Award Agreement evidencing such Award.
9.4 Voting Rights, Dividend Equivalent Rights and Distributions. Participants shall have no voting or dividend rights with respect to Common Shares represented by Restricted Share Units until the date of the issuance of such shares (as evidenced by the appropriate entry on the books of the Company or of a duly authorized transfer agent of the Company). However, the Committee, in its discretion, may provide in the Award Agreement evidencing any Restricted Share Unit Award that the Participant shall be entitled to Dividend Equivalent Rights with respect to the payment of cash dividends on Common Shares during the period beginning on the date such Award is granted and ending, with respect to each share subject to the Award, on the earlier of the date the Award is settled or the date on which it is terminated. Dividend Equivalent Rights, if any, shall be paid by crediting the Participant with a cash amount or with additional whole Restricted Share Units as of the date of payment of such cash dividends on Common Shares, as determined by the Committee. The number of additional Restricted Share Units (rounded to the nearest whole number), if any, to be credited shall be determined by dividing (a) the amount of cash dividends paid on the dividend payment date with respect to the number of Common Shares represented by the Restricted Share Units previously credited to the Participant by (b) the Fair Market Value per Common Share on such date. Such cash amount or additional Restricted Share Units shall be subject to the same terms and conditions and shall be settled in the same manner and at the same time as the Restricted Share Units originally subject to the Restricted Share Unit Award. In the event of a dividend or distribution paid in Common Shares or other property or any other adjustment made upon a change in the capital structure of the Company as described in Section 4.4, appropriate adjustments shall be made in the Participant’s Restricted Share Unit Award so that it represents the right to receive upon settlement any and all new, substituted or additional securities or other property (other than regular, periodic cash dividends) to which the Participant would be entitled by reason of the Common Shares issuable upon settlement of the Award, and all such new, substituted or additional securities or other property shall be immediately subject to the same Vesting Conditions as are applicable to the Award.
9.5 Effect of Termination of Service. Unless otherwise provided by the Committee and set forth in the Award Agreement evidencing a Restricted Share Unit Award, if a Participant’s Service terminates for any reason, whether voluntary or involuntary (including the Participant’s death or disability), then the Participant shall forfeit to the Company any Restricted Share Units pursuant to the Award which remain subject to Vesting Conditions as of the date of the Participant’s termination of Service.
9.6 Settlement of Restricted Share Unit Awards. The Company shall issue to a Participant on the date on which Restricted Share Units subject to the Participant’s Restricted Share Unit Award vest or on such other date determined by the Committee in compliance with Applicable Law, including Section 409A, if applicable, and set forth in the Award Agreement one (1) Common Share (and/or any other new, substituted or additional securities or other property pursuant to an adjustment described in Section 9.4) for each Restricted Share Unit then becoming vested or otherwise to be settled on such date, subject to the withholding of applicable taxes, if any. The Committee, in its discretion, may provide in any Award Agreement evidencing a Restricted Share Unit Award that if the settlement date with respect to any shares issuable upon vesting of Restricted Share Units would otherwise occur on a day on which the sale of such shares would violate the provisions of the Trading Compliance Policy, then the settlement date shall be deferred until the next trading day on which the sale of such shares would not violate the Trading Compliance Policy but in any event no later than the 15th day of the third calendar month following the year in which such Restricted Share Units vest. If permitted by the Committee, the Participant may elect, consistent with the requirements of Applicable Law, including Section 409A, to defer receipt of all or any portion of the Common Shares or other property otherwise issuable to the Participant pursuant to this Section, and such deferred issuance date(s) and amount(s) elected by the Participant shall be set forth in the Award Agreement. Notwithstanding the foregoing, the Committee, in its discretion, may provide for settlement of any Restricted Share Unit Award by payment to the Participant in cash of an amount equal to the Fair Market Value on the payment date of the Common Shares or other property otherwise issuable to the Participant pursuant to this Section. Restricted Share Units granted to a Participant who is a resident of Canada for the purposes of the Income Tax Act (Canada) must be settled no later than the end of the third calendar year following the year in which the Participant rendered Service resulting in the vesting of such Restricted Share Units.
18
9.7 Nontransferability of Restricted Share Unit Awards. The right to receive shares pursuant to a Restricted Share Unit Award shall not be subject in any manner to anticipation, alienation, sale, exchange, transfer, assignment, pledge, encumbrance, or garnishment by creditors of the Participant or the Participant’s beneficiary, except transfer by will or by the laws of descent and distribution. All rights with respect to a Restricted Share Unit Award granted to a Participant hereunder shall be exercisable during his or her lifetime only by such Participant or the Participant’s guardian or legal representative.
10. | PERFORMANCE AWARDS. |
Performance Awards shall be evidenced by Award Agreements in such form as the Committee shall establish. Such Award Agreements may incorporate all or any of the terms of the Plan by reference and shall comply with and be subject to the following terms and conditions:
10.1 Types of Performance Awards Authorized. Performance Awards may be granted in the form of either Performance Shares or Performance Units. Each Award Agreement evidencing a Performance Award shall specify the number of Performance Shares or Performance Units subject thereto, the Performance Award Formula, the Performance Goal(s) and Performance Period applicable to the Award, and the other terms, conditions and restrictions of the Award.
10.2 Initial Value of Performance Shares and Performance Units. Unless otherwise provided by the Committee in granting a Performance Award, each Performance Share shall have an initial monetary value equal to the Fair Market Value of one (1) Common Share, subject to adjustment as provided in Section 4.4, on the effective date of grant of the Performance Share, and each Performance Unit shall have an initial monetary value established by the Committee at the time of grant. The final value payable to the Participant in settlement of a Performance Award determined on the basis of the applicable Performance Award Formula will depend on the extent to which Performance Goals established by the Committee are attained within the applicable Performance Period established by the Committee.
10.3 Establishment of Performance Period, Performance Goals and Performance Award Formula. In granting each Performance Award, the Committee shall establish in writing the applicable Performance Period, Performance Award Formula and one or more Performance Goals which, when measured at the end of the Performance Period, shall determine on the basis of the Performance Award Formula the final value of the Performance Award to be paid to the Participant. The Company shall notify each Participant granted a Performance Award of the terms of such Award, including the Performance Period, Performance Goal(s) and Performance Award Formula.
19
10.4 Measurement of Performance Goals. Performance Goals shall be established by the Committee on the basis of targets to be attained (“Performance Targets”) with respect to one or more measures of business or financial performance or other criteria established by the Committee (each, a “Performance Measure”), subject to the following:
(a) Performance Measures. Performance Measures based on objective criteria shall be calculated in accordance with the Company’s financial statements, or, if such measures are not reported in the Company’s financial statements, they shall be calculated in accordance with generally accepted accounting principles, a method used generally in the Company’s industry, or in accordance with a methodology established by the Committee prior to the grant of the Performance Award. Performance Measures based on subjective criteria shall be determined on the basis established by the Committee in granting the Award. As specified by the Committee, Performance Measures may be calculated with respect to the Company and each Subsidiary Corporation consolidated therewith for financial reporting purposes, one or more Subsidiary Corporations or such division or other business unit of any of them selected by the Committee. Unless otherwise determined by the Committee prior to the grant of the Performance Award, the Performance Measures applicable to the Performance Award shall be calculated prior to the accrual of expense for any Performance Award for the same Performance Period and excluding the effect (whether positive or negative) on the Performance Measures of any change in accounting standards or any unusual or infrequently occurring event or transaction, as determined by the Committee, occurring after the establishment of the Performance Goals applicable to the Performance Award. Each such adjustment, if any, shall be made solely for the purpose of providing a consistent basis from period to period for the calculation of Performance Measures in order to prevent the dilution or enlargement of the Participant’s rights with respect to a Performance Award. Performance Measures may be based upon one or more of the following, without limitation, as determined by the Committee:
(i) revenue;
(ii) sales;
(iii) expenses;
(iv) operating income;
(v) gross margin;
(vi) operating margin;
(vii) earnings before any one or more of: share-based compensation expense, interest, taxes, depreciation and amortization;
(viii) pre-tax profit;
(ix) net operating income;
(x) net income;
(xi) economic value added;
(xii) free cash flow;
(xiii) operating cash flow, including debt-adjusted cash flow;
(xiv) balance of cash, cash equivalents and marketable securities;
(xv) share price;
(xvi) earnings per share;
(xvii) return on shareholder equity;
(xviii) return on capital;
(xix) return on assets;
(xx) return on investment;
(xxi) total shareholder return;
(xxii) employee satisfaction;
(xxiii) employee retention;
20
(xxiv) market share;
(xxv) customer satisfaction;
(xxvi) product development;
(xxvii) research and development expenses;
(xxviii) completion of an identified special project;
(xxix) completion of a joint venture or other corporate transaction; and
(xxx) personal performance objectives established for an individual Participant or group of Participants.
(b) Performance Targets. Performance Targets may include a minimum, maximum, target level and intermediate levels of performance, with the final value of a Performance Award determined under the applicable Performance Award Formula by the Performance Target level attained during the applicable Performance Period. A Performance Target may be stated as an absolute value, an increase or decrease in a value, or as a value determined relative to an index, a group of comparator companies, a budget or another standard selected by the Committee.
10.5 Settlement of Performance Awards.
(a) Determination of Final Value. As soon as practicable following the completion of the Performance Period applicable to a Performance Award, the Committee shall determine the extent to which the applicable Performance Goals have been attained and the resulting final value of the Award earned by the Participant and to be paid upon its settlement in accordance with the applicable Performance Award Formula.
(b) Discretionary Adjustment of Award Formula. In its discretion, the Committee may, either at the time it grants a Performance Award or at any time thereafter, provide for the positive or negative adjustment of the Performance Award Formula applicable to a Performance Award to reflect such Participant’s individual performance in his or her position with the Company or such other factors as the Committee may determine.
(c) Effect of Leaves of Absence. Unless otherwise required by law or a Participant’s Award Agreement, payment of the final value, if any, of a Performance Award held by a Participant who has taken in excess of thirty (30) days in unpaid leaves of absence during a Performance Period shall be prorated on the basis of the number of days of the Participant’s Service during the Performance Period during which the Participant was not on an unpaid leave of absence.
(d) Notice to Participants. As soon as practicable following the Committee’s determination in accordance with Sections 10.5(a) and (b), the Company shall notify each Participant of the determination of the Committee.
(e) Payment in Settlement of Performance Awards. As soon as practicable following the Committee’s determination in accordance with Sections 10.5(a) and (b), but in any event within the Short- Term Deferral Period described in Section 15.1 (except as otherwise provided below or consistent with the requirements of Section 409A), payment shall be made to each eligible Participant (or such Participant’s legal representative or other person who acquired the right to receive such payment by reason of the Participant’s death) of the final value of the Participant’s Performance Award. Payment of such amount shall be made in cash, Common Shares, or a combination thereof as determined by the Committee. Unless otherwise provided in the Award Agreement evidencing a Performance Award, payment shall be made in a lump sum. If permitted by the Committee, the Participant may elect, consistent with the requirements of Section 409A, to defer receipt of all or any portion of the payment to be made to the Participant pursuant to this Section, and such deferred payment date(s) elected by the Participant shall be set forth in the Award Agreement. If any payment is to be made on a deferred basis, the Committee may, but shall not be obligated to, provide for the payment during the deferral period of Dividend Equivalent Rights or interest.
21
(f) Provisions Applicable to Payment in Shares. If payment is to be made in Common Shares, the number of such shares shall be determined by dividing the final value of the Performance Award by the Fair Market Value of a Common Share determined by the method specified in the Award Agreement. Common Shares issued in payment of any Performance Award may be fully vested and freely transferable shares or may be Common Shares subject to Vesting Conditions as provided in Section 8.5. Any shares subject to Vesting Conditions shall be evidenced by an appropriate Award Agreement and shall be subject to the provisions of Sections 8.5 through 8.8 above.
10.6 Voting Rights; Dividend Equivalent Rights and Distributions. Participants shall have no voting rights with respect to Common Shares represented by Performance Share Awards until the date of the issuance of such shares, if any (as evidenced by the appropriate entry on the books of the Company or of a duly authorized transfer agent of the Company). However, the Committee, in its discretion, may provide in the Award Agreement evidencing any Performance Share Award that the Participant shall be entitled to Dividend Equivalent Rights with respect to the payment of cash dividends on Common Shares during the period beginning on the date the Award is granted and ending, with respect to each share subject to the Award, on the earlier of the date on which the Performance Shares are settled or the date on which they are forfeited. Such Dividend Equivalent Rights, if any, shall be credited to the Participant either in cash or in the form of additional whole Performance Shares as of the date of payment of such cash dividends on Common Shares, as determined by the Committee. The number of additional Performance Shares (rounded to the nearest whole number), if any, to be so credited shall be determined by dividing (a) the amount of cash dividends paid on the dividend payment date with respect to the number of Common Shares represented by the Performance Shares previously credited to the Participant by (b) the Fair Market Value per Common Share on such date. Dividend Equivalent Rights, if any, shall be accumulated and paid to the extent that the related Performance Shares become nonforfeitable. Settlement of Dividend Equivalent Rights may be made in cash, Common Shares, or a combination thereof as determined by the Committee, and may be paid on the same basis as settlement of the related Performance Share as provided in Section 10.5. Dividend Equivalent Rights shall not be paid with respect to Performance Units. In the event of a dividend or distribution paid in Common Shares or other property or any other adjustment made upon a change in the capital structure of the Company as described in Section 4.4, appropriate adjustments shall be made in the Participant’s Performance Share Award so that it represents the right to receive upon settlement any and all new, substituted or additional securities or other property (other than regular, periodic cash dividends) to which the Participant would be entitled by reason of the Common Shares issuable upon settlement of the Performance Share Award, and all such new, substituted or additional securities or other property shall be immediately subject to the same Performance Goals as are applicable to the Award.
10.7 Effect of Termination of Service. Unless otherwise provided by the Committee and set forth in the Award Agreement evidencing a Performance Award, the effect of a Participant’s termination of Service on the Performance Award shall be as follows:
(a) Death or Disability. If the Participant’s Service terminates because of the death or Disability of the Participant before the completion of the Performance Period applicable to the Performance Award, the final value of the Participant’s Performance Award shall be determined by the extent to which the applicable Performance Goals have been attained with respect to the entire Performance Period and shall be prorated based on the number of months of the Participant’s Service during the Performance Period. Payment shall be made following the end of the Performance Period in any manner permitted by Section 10.5.
(b) Other Termination of Service. If the Participant’s Service terminates for any reason except death or Disability before the completion of the Performance Period applicable to the Performance Award, such Award shall be forfeited in its entirety; provided, however, that in the event of an involuntary termination of the Participant’s Service, the Committee, in its discretion, may waive the automatic forfeiture of all or any portion of any such Award and determine the final value of the Performance Award in the manner provided by Section 10.7(a). Payment of any amount pursuant to this Section shall be made following the end of the Performance Period in any manner permitted by Section 10.5.
22
10.8 Nontransferability of Performance Awards. Prior to settlement in accordance with the provisions of the Plan, no Performance Award shall be subject in any manner to anticipation, alienation, sale, exchange, transfer, assignment, pledge, encumbrance, or garnishment by creditors of the Participant or the Participant’s beneficiary, except transfer by will or by the laws of descent and distribution. All rights with respect to a Performance Award granted to a Participant hereunder shall be exercisable during his or her lifetime only by such Participant or the Participant’s guardian or legal representative.
11. | CASH-BASED AWARDS AND OTHER SHARE-BASED AWARDS. |
Cash-Based Awards and Other Share-Based Awards shall be evidenced by Award Agreements in such form as the Committee shall establish. Such Award Agreements may incorporate all or any of the terms of the Plan by reference and shall comply with and be subject to the following terms and conditions:
11.1 Grant of Cash-Based Awards. Subject to the provisions of the Plan, the Committee, at any time and from time to time, may grant Cash-Based Awards to Participants in such amounts and upon such terms and conditions, including the achievement of performance criteria, as the Committee may determine.
11.2 Grant of Other Share-Based Awards. The Committee may grant other types of equity-based or equity-related Awards not otherwise described by the terms of this Plan (including the grant or offer for sale of unrestricted securities, stock-equivalent units, stock appreciation units, securities or debentures convertible into Common Shares or other forms determined by the Committee) in such amounts and subject to such terms and conditions as the Committee shall determine. Other Share-Based Awards may be made available as a form of payment in the settlement of other Awards or as payment in lieu of compensation to which a Participant is otherwise entitled. Other Share-Based Awards may involve the transfer of actual Common Shares to Participants, or payment in cash or otherwise of amounts based on the value of Common Shares and may include, without limitation, Awards designed to comply with or take advantage of the applicable local laws of jurisdictions other than the United States.
11.3 Value of Cash-Based and Other Share-Based Awards. Each Cash-Based Award shall specify a monetary payment amount or payment range as determined by the Committee. Each Other Share-Based Award shall be expressed in terms of Common Shares or units based on such Common Shares, as determined by the Committee. The Committee may require the satisfaction of such Service requirements, conditions, restrictions or performance criteria, including, without limitation, Performance Goals as described in Section 10.4, as shall be established by the Committee and set forth in the Award Agreement evidencing such Award. If the Committee exercises its discretion to establish performance criteria, the final value of Cash-Based Awards or Other Share-Based Awards that will be paid to the Participant will depend on the extent to which the performance criteria are met.
11.4 Payment or Settlement of Cash-Based Awards and Other Share-Based Awards. Payment or settlement, if any, with respect to a Cash-Based Award or an Other Share-Based Award shall be made in accordance with the terms of the Award, in cash, Common Shares or other securities or any combination thereof as the Committee determines. To the extent applicable, payment or settlement with respect to each Cash-Based Award and Other Share-Based Award shall be made in compliance with the requirements of Section 409A.
11.5 Voting Rights; Dividend Equivalent Rights and Distributions. Participants shall have no voting rights with respect to Common Shares represented by Other Share-Based Awards until the date of the issuance of such Common Shares (as evidenced by the appropriate entry on the books of the Company or of a duly authorized transfer agent of the Company), if any, in settlement of such Award. However, the Committee, in its discretion, may provide in the Award Agreement evidencing any Other Share-Based Award that the Participant shall be entitled to Dividend Equivalent Rights with respect to the payment of cash dividends on Common Shares during the period beginning on the date such Award is granted and ending, with respect to each share subject to the Award, on the earlier of the date the Award is settled or the date on which it is terminated. Such Dividend Equivalent Rights, if any, shall be paid in accordance with the provisions set forth in Section 9.4. Dividend Equivalent Rights shall not be granted with respect to Cash-Based Awards. In the event of a dividend or distribution paid in Common Shares or other property or any other adjustment made upon a change in the capital structure of the Company as described in Section 4.4, appropriate adjustments shall be made in the Participant’s Other Share-Based Award so that it represents the right to receive upon settlement any and all new, substituted or additional securities or other property (other than regular, periodic cash dividends) to which the Participant would be entitled by reason of the Common Shares issuable upon settlement of such Award, and all such new, substituted or additional securities or other property shall be immediately subject to the same Vesting Conditions and performance criteria, if any, as are applicable to the Award.
23
11.6 Effect of Termination of Service. Each Award Agreement evidencing a Cash-Based Award or Other Share-Based Award shall set forth the extent to which the Participant shall have the right to retain such Award following termination of the Participant’s Service. Such provisions shall be determined in the discretion of the Committee, need not be uniform among all Cash-Based Awards or Other Share-Based Awards, and may reflect distinctions based on the reasons for termination, subject to the requirements of Section 409A, if applicable.
11.7 Nontransferability of Cash-Based Awards and Other Share-Based Awards. Prior to the payment or settlement of a Cash-Based Award or Other Share-Based Award, the Award shall not be subject in any manner to anticipation, alienation, sale, exchange, transfer, assignment, pledge, encumbrance, or garnishment by creditors of the Participant or the Participant’s beneficiary, except transfer by will or by the laws of descent and distribution. The Committee may impose such additional restrictions on any Common Shares issued in settlement of Cash-Based Awards and Other Share-Based Awards as it may deem advisable, including, without limitation, minimum holding period requirements, restrictions under applicable securities laws, under the requirements of any stock exchange or market upon which such Common Shares are then listed and/or traded, or under any state securities laws or foreign law applicable to such Common Shares.
12. | STANDARD FORMS OF AWARD AGREEMENT. |
12.1 Award Agreements. Each Award shall comply with and be subject to the terms and conditions set forth in the appropriate form of Award Agreement approved by the Committee and as amended from time to time. No Award or purported Award shall be a valid and binding obligation of the Company unless evidenced by a fully executed Award Agreement, which execution may be evidenced by electronic means.
12.2 Authority to Vary Terms. The Committee shall have the authority from time to time to vary the terms of any standard form of Award Agreement either in connection with the grant or amendment of an individual Award or in connection with the authorization of a new standard form or forms; provided, however, that the terms and conditions of any such new, revised or amended standard form or forms of Award Agreement are not inconsistent with the terms of the Plan.
13. | CHANGE IN CONTROL, DISSOLUTION OR LIQUIDATION. |
13.1 Effect of Change in Control on Awards. In the event of a Change in Control, outstanding Awards shall be subject to the definitive agreement entered into by the Company in connection with the Change in Control or as otherwise determined by the Committee, including any requirement thereunder that the Participant sign a letter of transmittal, cancellation agreement, release of claims or other similar acknowledgement or agreement. Subject to the requirements and limitations of Applicable Law, including Section 409A, if applicable, the Committee may provide for any one or more of the following:
(a) Accelerated Vesting. In its discretion, the Committee may provide in the grant of any Award or at any other time may take such action as it deems appropriate to provide for acceleration of the exercisability, vesting and/or settlement in connection with a Change in Control of each or any outstanding Award or portion thereof and shares acquired pursuant thereto upon such conditions, including termination of the Participant’s Service prior to, upon, or following the Change in Control, and to such extent as the Committee determines.
24
(b) Assumption, Continuation or Substitution. In the event of a Change in Control, the surviving, continuing, successor, or purchasing corporation or other business entity or parent thereof, as the case may be (the “Acquiror”), may, without the consent of any Participant, assume or continue the Company’s rights and obligations under each or any Award or portion thereof outstanding immediately prior to the Change in Control or substitute for each or any such outstanding Award or portion thereof a substantially equivalent award with respect to the Acquiror’s shares, as applicable. For purposes of this Section, if so determined by the Committee in its discretion, an Award denominated in Common Shares shall be deemed assumed if, following the Change in Control, the Award confers the right to receive, subject to the terms and conditions of the Plan and the applicable Award Agreement, for each Common Share subject to the Award immediately prior to the Change in Control, the consideration (whether shares, cash, other securities or property or a combination thereof) to which a holder of a Common Share on the effective date of the Change in Control was entitled (and if holders were offered a choice of consideration, the type of consideration chosen by the holders of a majority of the outstanding Common Shares); provided, however, that if such consideration is not solely common shares of the Acquiror, the Committee may, with the consent of the Acquiror, provide for the consideration to be received upon the exercise or settlement of the Award, for each Common Share subject to the Award, to consist solely of common shares of the Acquiror equal in Fair Market Value to the per share consideration received by holders of Common Shares pursuant to the Change in Control. Any Award or portion thereof which is neither assumed or continued by the Acquiror in connection with the Change in Control nor exercised or settled as of the time of consummation of the Change in Control shall terminate and cease to be outstanding effective as of the time of consummation of the Change in Control.
(c) Cash-Out of Outstanding Share-Based Awards. The Committee may, in its discretion and without the consent of any Participant, determine that, upon the occurrence of a Change in Control, each or any Award denominated in Common Shares or portion thereof outstanding immediately prior to the Change in Control and not previously exercised or settled shall be canceled in exchange for a payment with respect to each vested Common Share (and each unvested Common Share, if so determined by the Committee) subject to such canceled Award in (i) cash, (ii) shares of the Company or of a corporation or other business entity that is a party to the Change in Control, or (iii) other property which, in any such case, shall be in an amount having a Fair Market Value equal to the Fair Market Value of the consideration to be paid per Common Share in the Change in Control, reduced (but not below zero) by the exercise or purchase price per share, if any, under such Award. In the event such determination is made by the Committee, an Award having an exercise or purchase price per share equal to or greater than the Fair Market Value of the consideration to be paid per Common Share in the Change in Control may be canceled without payment of consideration to the holder thereof. Payment pursuant to this Section (reduced by applicable withholding taxes, if any) shall be made to Participants in respect of the vested portions of their canceled Awards as soon as practicable following the date of the Change in Control and in respect of the unvested portions of their canceled Awards in accordance with the vesting schedules applicable to such Awards, consistent with the requirements of Section 409A, if applicable.
13.2 Effect of Change in Control on Nonemployee Director Awards. Subject to the requirements and limitations of Section 409A, if applicable, including as provided by Section 15.4(f), in the event of a Change in Control, each outstanding Nonemployee Director Award shall become immediately exercisable and vested in full and, except to the extent assumed, continued or substituted for pursuant to Section 13.1(b), shall be settled effective immediately prior to the time of consummation of the Change in Control.
13.3 Dissolution or Liquidation. In the event of the proposed dissolution or liquidation of the Company, the Committee will notify each Participant as soon as practicable prior to the effective date of such proposed transaction. To the extent it previously has not been exercised, an Award will terminate immediately prior to the consummation of such proposed action.
13.4 Federal Excise Tax Under Section 4999 of the Code.
(a) Excess Parachute Payment. If any acceleration of vesting pursuant to an Award and any other payment or benefit received or to be received by a Participant would subject the Participant to any excise tax pursuant to Section 4999 of the Code due to the characterization of such acceleration of vesting, payment or benefit as an “excess parachute payment” under Section 280G of the Code, then, provided such election would not subject the Participant to taxation under Section 409A, the Participant may elect to reduce the amount of any acceleration of vesting called for under the Award in order to avoid such characterization.
25
(b) Determination by Tax Firm. To aid the Participant in making any election called for under Section 13.3(a), no later than the date of the occurrence of any event that might reasonably be anticipated to result in an “excess parachute payment” to the Participant as described in Section 13.3(a), the Company shall request a determination in writing by the professional firm engaged by the Company for general tax purposes, or, if the tax firm so engaged by the Company is serving as accountant or auditor for the Acquiror, the Company will appoint a nationally recognized tax firm to make the determinations required by this Section (the “Tax Firm”). As soon as practicable thereafter, the Tax Firm shall determine and report to the Company and the Participant the amount of such acceleration of vesting, payments and benefits which would produce the greatest after-tax benefit to the Participant. For the purposes of such determination, the Tax Firm may rely on reasonable, good faith interpretations concerning the application of Sections 280G and 4999 of the Code. The Company and the Participant shall furnish to the Tax Firm such information and documents as the Tax Firm may reasonably request in order to make its required determination. The Company shall bear all fees and expenses the Tax Firm charges in connection with its services contemplated by this Section.
14. | COMPLIANCE WITH SECURITIES LAW. |
The grant of Awards and the issuance of Common Shares pursuant to any Award shall be subject to compliance with all applicable requirements of Applicable Law with respect to such securities and the requirements of any stock exchange or market system upon which the Common Shares may then be listed. In addition, no Award may be exercised or shares issued pursuant to an Award unless (a) any securities registration required by Applicable Law, including a registration statement under the Securities Act, shall at the time of such exercise or issuance be in effect with respect to the shares issuable pursuant to the Award, (b) in the opinion of legal counsel to the Company, the shares issuable pursuant to the Award may be issued in accordance with the terms of an applicable exemption from the registration requirements of the Securities Act or (c) such exercise or issuance is otherwise in compliance with Applicable Law. The inability of the Company to obtain from any regulatory body having jurisdiction the authority, if any, deemed by the Company’s legal counsel to be necessary to the lawful issuance and sale of any shares under the Plan shall relieve the Company of any liability in respect of the failure to issue or sell such shares as to which such requisite authority shall not have been obtained. As a condition to issuance of any Common Shares, the Company may require the Participant to satisfy any qualifications that may be necessary or appropriate, to evidence compliance with any Applicable Law and to make any representation or warranty with respect thereto as may be requested by the Company.
15. | COMPLIANCE WITH SECTION 409A. |
15.1 Awards Subject to Section 409A. The Company intends that Awards granted pursuant to the Plan shall either be exempt from or comply with Section 409A, and the Plan shall be so construed. The provisions of this Section 15 shall apply to any Award or portion thereof that constitutes or provides for payment of Section 409A Deferred Compensation. Such Awards may include, without limitation:
(a) A Nonstatutory Stock Option or SAR that includes any feature for the deferral of compensation other than the deferral of recognition of income until the later of (i) the exercise or disposition of the Award or (ii) the time the shares acquired pursuant to the exercise of the Award first becomes substantially vested.
(b) Any Restricted Share Unit Award, Performance Award, Cash-Based Award or Other Share-Based Award that either (i) provides by its terms for settlement of all or any portion of the Award at a time or upon an event that will or may occur later than the end of the Short-Term Deferral Period (as defined below) or (ii) permits the Participant granted the Award to elect one or more dates or events upon which the Award will be settled after the end of the Short-Term Deferral Period.
Subject to the provisions of Section 409A, the term “Short-Term Deferral Period” means the 21/2 month period ending on the later of (i) the 15th day of the third month following the end of the Participant’s taxable year in which the right to payment under the applicable portion of the Award is no longer subject to a substantial risk of forfeiture or (ii) the 15th day of the third month following the end of the Company’s taxable year in which the right to payment under the applicable portion of the Award is no longer subject to a substantial risk of forfeiture. For this purpose, the term “substantial risk of forfeiture” shall have the meaning provided by Section 409A.
26
15.2 Deferral and/or Distribution Elections. Except as otherwise permitted or required by Section 409A, the following rules shall apply to any compensation deferral and/or payment elections (each, an “Election”) that may be permitted or required by the Committee pursuant to an Award providing Section 409A Deferred Compensation:
(a) Elections must be in writing and specify the amount of the payment in settlement of an Award being deferred, as well as the time and form of payment as permitted by this Plan.
(b) Elections shall be made by the end of the Participant’s taxable year prior to the year in which services commence for which an Award may be granted to the Participant.
(c) Elections shall continue in effect until a written revocation or change in Election is received by the Company, except that a written revocation or change in Election must be received by the Company prior to the last day for making the Election determined in accordance with paragraph (b) above or as permitted by Section 15.3.
15.3 Subsequent Elections. Except as otherwise permitted or required by Section 409A, any Award providing Section 409A Deferred Compensation which permits a subsequent Election to delay the payment or change the form of payment in settlement of such Award shall comply with the following requirements:
(a) No subsequent Election may take effect until at least twelve (12) months after the date on which the subsequent Election is made.
(b) Each subsequent Election related to a payment in settlement of an Award not described in Section 15.4(a)(ii), 15.4(a)(iii) or 15.4(a)(vi) must result in a delay of the payment for a period of not less than five (5) years from the date on which such payment would otherwise have been made.
(c) No subsequent Election related to a payment pursuant to Section 15.4(a)(iv) shall be made less than twelve (12) months before the date on which such payment would otherwise have been made.
(d) Subsequent Elections shall continue in effect until a written revocation or change in the subsequent Election is received by the Company, except that a written revocation or change in a subsequent Election must be received by the Company prior to the last day for making the subsequent Election determined in accordance the preceding paragraphs of this Section 15.3.
15.4 Payment of Section 409A Deferred Compensation.
(a) Permissible Payments. Except as otherwise permitted or required by Section 409A, an Award providing Section 409A Deferred Compensation must provide for payment in settlement of the Award only upon one or more of the following:
(i) The Participant’s “separation from service” (as defined by Section 409A);
(ii) The Participant’s becoming “disabled” (as defined by Section 409A);
(iii) The Participant’s death;
(iv) A time or fixed schedule that is either (i) specified by the Committee upon the grant of an Award and set forth in the Award Agreement evidencing such Award or (ii) specified by the Participant in an Election complying with the requirements of Section 15.2 or 15.3, as applicable;
(v) A change in the ownership or effective control or the Company or in the ownership of a substantial portion of the assets of the Company determined in accordance with Section 409A; or
(vi) The occurrence of an “unforeseeable emergency” (as defined by Section 409A).
27
(b) Installment Payments. It is the intent of this Plan that any right of a Participant to receive installment payments (within the meaning of Section 409A) shall, for all purposes of Section 409A, be treated as a right to a series of separate payments.
(c) Required Delay in Payment to Specified Employee Pursuant to Separation from Service. Notwithstanding any provision of the Plan or an Award Agreement to the contrary, except as otherwise permitted by Section 409A, no payment pursuant to Section 15.4(a)(i) in settlement of an Award providing for Section 409A Deferred Compensation may be made to a Participant who is a “specified employee” (as defined by Section 409A) as of the date of the Participant’s separation from service before the date (the “Delayed Payment Date”) that is six (6) months after the date of such Participant’s separation from service, or, if earlier, the date of the Participant’s death. All such amounts that would, but for this paragraph, become payable prior to the Delayed Payment Date shall be accumulated and paid on the Delayed Payment Date.
(d) Payment Upon Disability. All distributions of Section 409A Deferred Compensation payable pursuant to Section 15.4(a)(ii) by reason of a Participant becoming disabled shall be paid in a lump sum or in periodic installments as established by the Participant’s Election. If the Participant has made no Election with respect to distributions of Section 409A Deferred Compensation upon becoming disabled, all such distributions shall be paid in a lump sum upon the determination that the Participant has become disabled.
(e) Payment Upon Death. If a Participant dies before complete distribution of amounts payable upon settlement of an Award subject to Section 409A, such undistributed amounts shall be distributed to his or her beneficiary under the distribution method for death established by the Participant’s Election upon receipt by the Committee of satisfactory notice and confirmation of the Participant’s death. If the Participant has made no Election with respect to distributions of Section 409A Deferred Compensation upon death, all such distributions shall be paid in a lump sum upon receipt by the Committee of satisfactory notice and confirmation of the Participant’s death.
(f) Payment Upon Change in Control. Notwithstanding any provision of the Plan or an Award Agreement to the contrary, to the extent that any amount constituting Section 409A Deferred Compensation would become payable under this Plan by reason of a Change in Control, such amount shall become payable only if the event constituting a Change in Control would also constitute a change in ownership or effective control of the Company or a change in the ownership of a substantial portion of the assets of the Company within the meaning of Section 409A. Any Award which constitutes Section 409A Deferred Compensation and which would vest and otherwise become payable upon a Change in Control as a result of the failure of the Acquiror to assume, continue or substitute for such Award in accordance with Section 13.1(b) shall vest to the extent provided by such Award but shall be converted automatically at the effective time of such Change in Control into a right to receive, in cash on the date or dates such award would have been settled in accordance with its then existing settlement schedule (or as required by Section 15.4(c)), an amount or amounts equal in the aggregate to the intrinsic value of the Award at the time of the Change in Control.
(g) Payment Upon Unforeseeable Emergency. The Committee shall have the authority to provide in the Award Agreement evidencing any Award providing for Section 409A Deferred Compensation for payment pursuant to Section 15.4(a)(vi) in settlement of all or a portion of such Award in the event that a Participant establishes, to the satisfaction of the Committee, the occurrence of an unforeseeable emergency. In such event, the amount(s) distributed with respect to such unforeseeable emergency cannot exceed the amounts reasonably necessary to satisfy the emergency need plus amounts necessary to pay taxes reasonably anticipated as a result of such distribution(s), after taking into account the extent to which such emergency need is or may be relieved through reimbursement or compensation by insurance or otherwise, by liquidation of the Participant’s assets (to the extent the liquidation of such assets would not itself cause severe financial hardship) or by cessation of deferrals under the Award. All distributions with respect to an unforeseeable emergency shall be made in a lump sum upon the Committee’s determination that an unforeseeable emergency has occurred. The Committee’s decision with respect to whether an unforeseeable emergency has occurred and the manner in which, if at all, the payment in settlement of an Award shall be altered or modified, shall be final, conclusive, and not subject to approval or appeal.
28
(h) Prohibition of Acceleration of Payments. Notwithstanding any provision of the Plan or an Award Agreement to the contrary, this Plan does not permit the acceleration of the time or schedule of any payment under an Award providing Section 409A Deferred Compensation, except as permitted by Section 409A.
(i) No Representation Regarding Section 409A Compliance. Notwithstanding any other provision of the Plan, the Company makes no representation that Awards shall be exempt from or comply with Section 409A. No Participating Company shall be liable for any tax, penalty or interest imposed on a Participant by Section 409A.
16. | TAX WITHHOLDING. |
16.1 Tax Withholding in General. The Company shall have the right to deduct from any and all payments made under the Plan, or to require the Participant, through payroll withholding, cash payment or otherwise, to make adequate provision for, the federal, state, provincial, local and foreign taxes (including social insurance), if any, required by law to be withheld by any Participating Company with respect to an Award or the shares acquired pursuant thereto. The Company shall have no obligation to deliver Common Shares, to release Common Shares from an escrow established pursuant to an Award Agreement, or to make any payment in cash under the Plan until the Participating Company Group’s tax withholding obligations have been satisfied by the Participant.
16.2 Withholding in or Directed Sale of Shares. If permitted by Applicable Law, the Company shall have the right, but not the obligation, to deduct from the Common Shares issuable to a Participant upon the exercise or settlement of an Award, or to accept from the Participant the tender of, a number of whole Common Shares having a Fair Market Value, as determined by the Company, equal to all or any part of the tax withholding obligations of any Participating Company. The Fair Market Value of any Common Shares withheld or tendered to satisfy any such tax withholding obligations shall not exceed the amount determined by the applicable minimum statutory withholding rates (or the maximum individual statutory withholding rates for the applicable jurisdiction if use of such rates would not result in adverse accounting consequences or cost). The Company may require a Participant to direct a broker, upon the vesting, exercise or settlement of an Award, to sell a portion of the shares subject to the Award determined by the Company in its discretion to be sufficient to cover the tax withholding obligations of any Participating Company and to remit an amount equal to such tax withholding obligations to such Participating Company in cash.
17. | AMENDMENT, SUSPENSION OR TERMINATION OF PLAN. |
The Committee may amend, suspend or terminate the Plan at any time. However, without the approval of the Company’s shareholders, there shall be (a) no increase in the maximum aggregate number of Common Shares that may be issued under the Plan (except by operation of the provisions of Sections 4.2 and 4.3), (b) no change in the class of persons eligible to receive Awards, (c) the limits on the amount of Awards that may be granted to any one person or any category of Participant; (d) the method of determining the exercise price of Options; (e) the maximum term of Options; (f) the expiry and termination provisions applicable to Options; and (g) no other amendment of the Plan that would require approval of the Company’s shareholders under any Applicable Law, including the rules of any stock exchange or quotation system upon which the Common Shares may then be listed or quoted. In addition, without the approval of the Company’s disinterested shareholders, (a) the exercise price of an Option shall not be reduced, and (b) the term of an Option held by an Insider at the time of the proposed amendment shall not be extended. Notwithstanding the foregoing, the following types of amendments will not be subject to shareholder approval: (a) amendments to fix typographical errors; and (b) amendments to clarify existing provisions of the Plan that do not have the effect of altering the scope, nature and intent of such provisions. No amendment, suspension or termination of the Plan shall affect any then outstanding Award unless expressly provided by the Committee. Except as provided by the next sentence, no amendment, suspension or termination of the Plan may have a materially adverse effect on any then outstanding Award without the consent of the Participant. Notwithstanding any other provision of the Plan or any Award Agreement to the contrary, the Committee may, in its sole and absolute discretion and without the consent of any Participant, amend the Plan or any Award Agreement, to take effect retroactively or otherwise, as it deems necessary or advisable for the purpose of conforming the Plan or such Award Agreement to any present or future Applicable Law, including, but not limited to, Section 409A.
29
18. | MISCELLANEOUS PROVISIONS. |
18.1 Repurchase Rights. Shares issued under the Plan may be subject to one or more repurchase options, or other conditions and restrictions as determined by the Committee in its discretion at the time the Award is granted. The Company shall have the right to assign at any time any repurchase right it may have, whether or not such right is then exercisable, to one or more persons as may be selected by the Company. Upon request by the Company, each Participant shall execute any agreement evidencing such transfer restrictions prior to the receipt of Common Shares hereunder and shall promptly present to the Company any and all certificates representing Common Shares acquired hereunder for the placement on such certificates of appropriate legends evidencing any such transfer restrictions.
18.2 Forfeiture Events.
(a) The Committee may specify in an Award Agreement that the Participant’s rights, payments, and benefits with respect to an Award shall be subject to reduction, cancellation, forfeiture, or recoupment upon the occurrence of specified events, in addition to any otherwise applicable vesting or performance conditions of an Award. Such events may include, but shall not be limited to, termination of Service for Cause or any act by a Participant, whether before or after termination of Service, that would constitute Cause for termination of Service, or any accounting restatement due to material noncompliance of the Company with any financial reporting requirements of securities laws as a result of which, and to the extent that, such reduction, cancellation, forfeiture, or recoupment is required by applicable securities laws. In addition, to the extent that claw-back or similar provisions applicable to Awards are required by applicable law, listing standards and/or policies adopted by the Company, Awards granted under the Plan shall be subject to such provisions.
(b) If the Company is required to prepare an accounting restatement due to the material noncompliance of the Company, as a result of misconduct, with any financial reporting requirement under the securities laws, any Participant who knowingly or through gross negligence engaged in the misconduct, or who knowingly or through gross negligence failed to prevent the misconduct, and any Participant who is one of the individuals subject to automatic forfeiture under Section 304 of the Sarbanes-Oxley Act of 2002, shall reimburse the Company for (i) the amount of any payment in settlement of an Award received by such Participant during the twelve- (12-) month period following the first public issuance or filing with the United States Securities and Exchange Commission (whichever first occurred) of the financial document embodying such financial reporting requirement, and (ii) any profits realized by such Participant from the sale of securities of the Company during such twelve- (12-) month period.
18.3 Provision of Information. To the extent required by Applicable Law, each Participant shall be given access to information concerning the Company equivalent to that information generally made available to the Company’s common shareholders.
18.4 Rights as Employee, Consultant or Director. No person, even though eligible pursuant to Section 5, shall have a right to be selected as a Participant, or, having been so selected, to be selected again as a Participant. Nothing in the Plan or any Award granted under the Plan shall confer on any Participant a right to remain an Employee, Consultant or Director or interfere with or limit in any way any right of a Participating Company to terminate the Participant’s Service at any time. To the extent that an Employee of a Participating Company other than the Company receives an Award under the Plan, that Award shall in no event be understood or interpreted to mean that the Company is the Employee’s employer or that the Employee has an employment relationship with the Company.
18.5 Rights as a Shareholder. A Participant shall have no rights as a shareholder with respect to any shares covered by an Award until the date of the issuance of such shares (as evidenced by the appropriate entry on the books of the Company or of a duly authorized transfer agent of the Company). No adjustment shall be made for dividends, distributions or other rights for which the record date is prior to the date such shares are issued, except as provided in Section 4.4 or another provision of the Plan.
30
18.6 Delivery of Title to Shares. Subject to any governing rules or regulations, the Company shall issue or cause to be issued the Common Shares acquired pursuant to an Award and shall deliver such shares to or for the benefit of the Participant by means of one or more of the following: (a) by delivering to the Participant evidence of book entry Common Shares credited to the account of the Participant, (b) by depositing such Common Shares for the benefit of the Participant with any broker with which the Participant has an account relationship, or (c) by delivering such Common Shares to the Participant in certificate form.
18.7 Fractional Shares. The Company shall not be required to issue fractional shares upon the exercise or settlement of any Award.
18.8 Retirement and Welfare Plans. Neither Awards made under this Plan nor Common Shares or cash paid pursuant to such Awards may be included as “compensation” for purposes of computing the benefits payable to any Participant under any Participating Company’s retirement plans (both qualified and non-qualified) or welfare benefit plans unless such other plan expressly provides that such compensation shall be taken into account in computing a Participant’s benefit. In addition, unless a written employment agreement or other service agreement specifically references Awards, a general reference to “benefits” or a similar term in such agreement shall not be deemed to refer to Awards granted hereunder.
18.9 Beneficiary Designation. Subject to local laws and procedures, each Participant may file with the Company a written designation of a beneficiary who is to receive any benefit under the Plan to which the Participant is entitled in the event of such Participant’s death before he or she receives any or all of such benefit. Each designation will revoke all prior designations by the same Participant, shall be in a form prescribed by the Company, and will be effective only when filed by the Participant in writing with the Company during the Participant’s lifetime. If a married Participant designates a beneficiary other than the Participant’s spouse, the effectiveness of such designation may be subject to the consent of the Participant’s spouse. If a Participant dies without an effective designation of a beneficiary who is living at the time of the Participant’s death, the Company will pay any remaining unpaid benefits to the Participant’s legal representative.
18.10 Severability. If any one or more of the provisions (or any part thereof) of this Plan shall be held invalid, illegal or unenforceable in any respect, such provision shall be modified so as to make it valid, legal and enforceable, and the validity, legality and enforceability of the remaining provisions (or any part thereof) of the Plan shall not in any way be affected or impaired thereby.
18.11 No Constraint on Corporate Action. Nothing in this Plan shall be construed to: (a) limit, impair, or otherwise affect the Company’s or another Participating Company’s right or power to make adjustments, reclassifications, reorganizations, or changes of its capital or business structure, or to merge or consolidate, or dissolve, liquidate, sell, or transfer all or any part of its business or assets; or (b) limit the right or power of the Company or another Participating Company to take any action which such entity deems to be necessary or appropriate.
18.12 Unfunded Obligation. Participants shall have the status of general unsecured creditors of the Company. Any amounts payable to Participants pursuant to the Plan shall be considered unfunded and unsecured obligations for all purposes, including, without limitation, Title I of the Employee Retirement Income Security Act of 1974. No Participating Company shall be required to segregate any monies from its general funds, or to create any trusts, or establish any special accounts with respect to such obligations. The Company shall retain at all times beneficial ownership of any investments, including trust investments, which the Company may make to fulfill its payment obligations hereunder. Any investments or the creation or maintenance of any trust or any Participant account shall not create or constitute a trust or fiduciary relationship between the Committee or any Participating Company and a Participant, or otherwise create any vested or beneficial interest in any Participant or the Participant’s creditors in any assets of any Participating Company. The Participants shall have no claim against any Participating Company for any changes in the value of any assets which may be invested or reinvested by the Company with respect to the Plan.
18.13 Choice of Law. Except to the extent governed by applicable United States federal law, the validity, interpretation, construction and performance of the Plan and each Award Agreement shall be governed by the laws of the Province of British Columbia and the federal laws of Canada, without regard to their conflict of law rules.
31
IN WITNESS WHEREOF, the undersigned Secretary of the Company certifies that the foregoing sets forth the Protech Home Medical Corp. 2021 Equity Incentive Plan as duly adopted by the Company's shareholders effective as of the Effective Date.
/s/ | |
, Chief Financial Officer |
32
Exhibit 99.94
Security Class Holder Account Number ------- Fold Form of Proxy - Annual and Special Meeting to be held on Monday, May 3, 2021 This Form of Proxy is solicited by and on behalf of Management. Notes to proxy 1. Every holder has the right to appoint some other person or company of their choice, who need not be a holder, to attend and act on their behalf at the meeting or any adjournment or postponement thereof. If you wish to appoint a person or company other than the Management Nominees whose names are printed herein, please insert the name of your chosen proxyholder in the space provided (see reverse). 2. If the securities are registered in the name of more than one owner (for example, joint ownership, trustees, executors, etc.), then all those registered should sign this proxy. If you are voting on behalf of a corporation or another individual you may be required to provide documentation evidencing your power to sign this proxy with signing capacity stated. 3. This proxy should be signed in the exact manner as the name(s) appear(s) on the proxy. 4. If a date is not inserted in the space provided on the reverse of this proxy, it will be deemed to bear the date on which it was mailed to the holder by Management. 5. The securities represented by this proxy will be voted as directed by the holder, however, if such a direction is not made in respect of any matter, and the proxy appoints the Management Nominees listed on the reverse, this proxy will be voted as recommended by Management. 6. The securities represented by this proxy will be voted in favour, or withheld from voting, or voted against each of the matters described herein, as applicable, in accordance with the instructions of the holder, on any ballot that may be called for. If you have specified a choice with respect to any matter to be acted on, the securities will be voted accordingly. 7. This proxy confers discretionary authority in respect of amendments or variations to matters identified in the Notice of Meeting and Management Information Circular or other matters that may properly come before the meeting or any adjournment or postponement thereof, unless prohibited by law. 8. This proxy should be read in conjunction with the accompanying documentation provided by Management. Proxies submitted must be received by 11:00 am (Eastern Time), on Thursday, April 29, 2021. VOTE USING THE TELEPHONE OR INTERNET 24 HOURS A DAY 7 DAYS A WEEK! Fold To Vote Using the Telephone Call the number listed BELOW from a touch tone telephone. 1-866-732-VOTE (8683) Toll Free To Vote Using the Internet • Go to the following web site: www.investorvote.com Smartphone? Scan the QR code to vote now. If you vote by telephone or the Internet, DO NOT mail back this proxy. Voting by mail may be the only method for securities held in the name of a corporation or securities being voted on behalf of another individual. Voting by mail or by Internet are the only methods by which a holder may appoint a person as proxyholder other than the Management Nominees named on the reverse of this proxy. Instead of mailing this proxy, you may choose one of the two voting methods outlined above to vote this proxy. To vote by telephone or the Internet, you will need to provide your CONTROL NUMBER listed below. CONTROL NUMBER
Appointment of Proxyholder I/We being holder(s) of Protech Home Medical Corp. hereby appoint(s): Gregory Crawford, Chief Executive Officer and Director, or failing him, Hardik Mehta, Chief Financial Officer, or their designees (the “Management Nominees”)OR Instead of either of the foregoing, print the name of the person you are appointing if this person is someone other than the Management Nominees listed herein. as my/our proxyholder with full power of substitution and to attend, act and to vote in accordance with the following direction (or if no directions have been given, as the proxyholder sees fit) and to vote at the discretion of the proxyholder with respect to amendments or variations to matters identified in the Notice of Meeting or other matters that may properly come before the Annual and Special Meeting of Shareholders of Protech Home Medical Corp. (the “Corporation”) to be held at 1019 Town Drive, Wilder, Kentucky on Monday, May 3, 2021 at 11:00 a.m. (Eastern Time) and at any adjournment or postponement thereof. VOTING RECOMMENDATIONS ARE INDICATED BY HIGHLIGHTED TEXT OVER THE BOXES. 1. Election of Directors 01. Gregory Crawford 04. Kevin Carter ForWithhold 02. Mark Greenberg For Withhold 03. Eugene Ewing ForWithhold For Withhold 2. Appointment of Auditors Appointment of MNP LLP, as auditors of the Corporation for the ensuing year and authorizing the directors of the Corporation to fix their remuneration. For Against 3. 2021 Equity Incentive Plan To consider and, if thought appropriate, to pass an ordinary resolution (the text of which is disclosed in Section 10(iv) of the Management Information Circular) to ratify, confirm and approve a security based compensation plan of the Corporation, as more particularly described in the Management Information Circular. Fold Signature of Proxyholder I/We authorize you to act in accordance with my/our instructions set out above. I/We hereby revoke any proxy previously given with respect to the Meeting. If no voting instructions are indicated above, and the proxy appoints the Management Nominees, this Proxy will be voted as recommended by Management. Signature(s) Date Interim Financial Statements - Mark this box if you would like to receive Interim Financial Statements and accompanying Management’s Discussion and Analysis by mail. Annual Financial Statements - Mark this box if you would like to receive the Annual Financial Statements and accompanying Management’s Discussion and Analysis by mail. If you are not mailing back your proxy, you may register online to receive the above financial report(s) by mail at www.computershare.com/mailinglist. I H P Q 3 2 2 7 1 2 1
Exhibit 99.95
PROTECH HOME MEDICAL CORP.
CERTIFICATE
Pursuant to Section 2.20 of National Instrument 54-101
Reference is made to the Annual & Special Meeting of the Shareholders (the “Meeting”) of Protech Home Medical Corp. (the “Corporation”) scheduled to be held on May 3, 2021.
I, Hardik Mehta, as the duly appointed Chief Financial Officer of the Corporation, hereby certify on behalf of the Corporation and not in my personal capacity as follows:
1. | All proxy-related materials in connection with the Meeting have been sent in compliance with National Instrument 54-101 (“NI 54-101”) to all beneficial owners of the Corporation at least 21 days before the date fixed for the Meeting. |
2. | The Corporation has arranged to carry out all of the requirements of NI 54-101 in addition to those described in item 1 above in connection with the Meeting. |
3. | The Corporation is relying upon Section 2.20 of NI 54-101 in connection with the abridgement of the time periods specified in Subsections 2.1(b), 2.2(1) and 2.5(1) of NI 54-101 in respect of the Meeting. |
The term “beneficial owner” as used in this Certificate has the meaning given to it in NI 54-101.
DATED April 1, 2021.
PROTECH HOME MEDICAL CORP. | ||
Per: | (signed) “Hardik Mehta” | |
Name: Hardik Mehta | ||
Title: Chief Financial Officer |
Exhibit 99.96
FORM 52-109F1 – AIF
CERTIFICATION OF ANNUAL FILINGS
IN CONNECTION WITH VOLUNTARILY FILED AIF
This certificate is being filed on the same date that Protech Home Medical Corp. (the “issuer”) has voluntarily filed an AIF.
I, Gregory Crawford, as Chief Executive Officer of Protech Home Medical Corp., certify the following:
1. | Review: I have reviewed the AIF, annual financial statements and annual MD&A, including for greater certainty all documents and information that are incorporated by reference in the AIF (together, the “annual filings”) of the issuer for the financial year ended September 30, 2020. |
2. | No misrepresentations: Based on my knowledge, having exercised reasonable diligence, the annual filings do not contain any untrue statement of a material fact or omit to state a material fact required to be stated or that is necessary to make a statement not misleading in light of the circumstances under which it was made, for the period covered by the annual filings. |
3. | Fair presentation: Based on my knowledge, having exercised reasonable diligence, the annual financial statements, together with the other financial information included in the annual filings fairly present in all material respects the financial condition, financial performance and cash flows of the issuer, as of the date of and for the periods presented in the annual filings. |
Date: April 29, 2021
(signed) “Gregory Crawford”
Gregory Crawford
Chief Executive Officer
NOTE TO READER
i) controls and other procedures designed to provide reasonable assurance that information required to be disclosed by the issuer in its annual filings, interim filings or other reports filed or submitted under securities legislation is recorded, processed, summarized and reported within the time periods specified in securities legislation; and
ii) a process to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with the issuer’s GAAP.
The issuer’s certifying officers are responsible for ensuring that processes are in place to provide them with sufficient knowledge to support the representations they are making in this certificate. Investors should be aware that inherent limitations on the ability of certifying officers of a venture issuer to design and implement on a cost effective basis DC&P and ICFR as defined in NI 52-109 may result in additional risks to the quality, reliability, transparency and timeliness of interim and annual filings and other reports provided under securities legislation. |
Exhibit 99.97
FORM 52-109F1 – AIF
CERTIFICATION OF ANNUAL FILINGS
IN CONNECTION WITH VOLUNTARILY FILED AIF
This certificate is being filed on the same date that Protech Home Medical Corp. (the “issuer”) has voluntarily filed an AIF.
I, Hardik Mehta, as Chief Financial Officer of Protech Home Medical Corp., certify the following:
1. | Review: I have reviewed the AIF, annual financial statements and annual MD&A, including for greater certainty all documents and information that are incorporated by reference in the AIF (together, the “annual filings”) of the issuer for the financial year ended September 30, 2020. |
2. | No misrepresentations: Based on my knowledge, having exercised reasonable diligence, the annual filings do not contain any untrue statement of a material fact or omit to state a material fact required to be stated or that is necessary to make a statement not misleading in light of the circumstances under which it was made, for the period covered by the annual filings. |
3. | Fair presentation: Based on my knowledge, having exercised reasonable diligence, the annual financial statements, together with the other financial information included in the annual filings fairly present in all material respects the financial condition, financial performance and cash flows of the issuer, as of the date of and for the periods presented in the annual filings. |
Date: April 29, 2021
(signed) “Hardik Mehta”
Hardik Mehta
Chief Financial Officer
NOTE TO READER
i) controls and other procedures designed to provide reasonable assurance that information required to be disclosed by the issuer in its annual filings, interim filings or other reports filed or submitted under securities legislation is recorded, processed, summarized and reported within the time periods specified in securities legislation; and
ii) a process to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with the issuer’s GAAP.
The issuer’s certifying officers are responsible for ensuring that processes are in place to provide them with sufficient knowledge to support the representations they are making in this certificate. Investors should be aware that inherent limitations on the ability of certifying officers of a venture issuer to design and implement on a cost effective basis DC&P and ICFR as defined in NI 52-109 may result in additional risks to the quality, reliability, transparency and timeliness of interim and annual filings and other reports provided under securities legislation. |
Exhibit 99.98
PROTECH HOME MEDICAL CORP.
ANNUAL INFORMATION FORM
for the year ended September 30, 2020
April 27, 2021
TABLE OF CONTENTS
CAUTION REGARDING FORWARD-LOOKING STATEMENTS | 1 |
CURRENCY | 2 |
CORPORATE STRUCTURE | 2 |
Name, Address and Incorporation | 2 |
Intercorporate Relationships | 3 |
GENERAL DEVELOPMENT OF THE BUSINESS | 1 |
Fiscal Year Ended September 30, 2018 | 1 |
Fiscal Year Ended September 30, 2019 | 2 |
Fiscal Year Ended September 30, 2020 | 3 |
Developments Subsequent to the financial year ended September 30, 2020 | 3 |
Significant Acquisitions During 2020 | 4 |
DESCRIPTION OF THE BUSINESS | 4 |
Company Overview | 4 |
Business Objective | 4 |
Key Performance Drivers | 4 |
Subsidiaries | 4 |
Cycles | 7 |
Economic Dependence | 7 |
Changes to Contracts | 8 |
Employees | 8 |
Foreign Operations | 8 |
Business in the Upcoming Year | 8 |
RISK FACTORS | 8 |
DIVIDENDS | 16 |
CAPITAL STRUCTURE | 17 |
Common Shares | 17 |
Options | 17 |
Restricted Share Units/Deferred Share Units | 18 |
Debentures | 20 |
MARKET FOR SECURITIES | 21 |
Trading Price and Volume | 21 |
Prior Sales | 21 |
ESCROWED SECURITIES AND SECURITIES SUBJECT TO CONTRACTUAL RESTRICTION ON TRANSFER | 22 |
DIRECTORS AND OFFICERS | 22 |
Name, Occupation and Security Holding (as of the date hereof) | 22 |
Biographical Information | 23 |
Cease Trade Orders, Bankruptcies, Penalties or Sanctions | 24 |
Conflicts of Interest | 25 |
Advance Notice Provisions | 25 |
LEGAL PROCEEDINGS AND REGULATORY ACTIONS | 25 |
Legal Proceedings | 25 |
Regulatory Actions | 26 |
INTEREST OF MANAGEMENT AND OTHERS IN MATERIAL TRANSACTIONS | 26 |
-2-
CAUTION REGARDING FORWARD-LOOKING STATEMENTS
This Annual Information Form ("AIF") contains "forward-looking information" within the meaning of Canadian securities legislation and "forward-looking statements" within the meaning of applicable securities legislation, including the United States Private Securities Litigation Reform Act of 1995. Any statements that express, or involve discussions as to, expectations, beliefs, plans, objectives, assumptions or future events or performance are not historical facts and may be forward-looking and may involve estimates, assumptions and uncertainties which could cause actual results or outcomes to differ materially from those expressed in the forward-looking statements. These forward-looking statements are made as of the date of this AIF or as of the date of the applicable document from which they are incorporated by reference.
Forward-looking statements relate to future events or future performance and reflect the expectations or beliefs of management of Protech Home Medical Corp. (the "Company") regarding future events, and include, but are not limited to, statements with respect to: operating results; profitability; financial condition and resources; anticipated needs for working capital; liquidity; capital resources; capital expenditures; milestones; licensing milestones; information with respect to future growth and growth strategies; anticipated trends in our industry; our future financing plans; timelines; currency fluctuations; government regulation; unanticipated expenses; commercial disputes or claims; limitations on insurance coverage; and availability of cash flow to fund capital requirements.
Forward-looking information is based on the reasonable assumptions, estimates, analysis and opinions of the Company’s management made in light of its experience and its perception of trends, current conditions and expected developments, as well as other factors that management believes to be relevant and reasonable in the circumstances at the date that such statements are made, but which may prove to be incorrect. The Company believes that the assumptions and expectations reflected in such forward-looking information are reasonable.
In certain cases, forward-looking statements can be identified by the use of words such as "plans", "expects" or "does not expect", "is expected", "budget", "potential", "scheduled", "estimates", "forecasts", "intends", "anticipates" or "does not anticipate", or "believes", or variations of such words and phrases or statements that certain actions, events or results "will", "may", "could", "would", "might" or "will be taken", "occur" or "be achieved" or the negative of these terms or comparable terminology. By their very nature, forward-looking statements require the Company to make assumptions and are subject to known and unknown risks, uncertainties and other factors which may cause the actual results, performance or achievements of the Company to be materially different from any future results, performance or achievements expressed or implied by the forward-looking statements. A variety of material factors include, among others: credit risks, market risks (including those related to equity, commodity, foreign exchange and interest rate markets), liquidity risks, operational risks (including those related to technology and infrastructure), and risks relating to reputation, insurance, strategy, regulatory matters, legal matters, environmental matters and capital adequacy. Examples of such risk factors include: the Company may be subject to significant capital requirements and operating risks; changes in law, the ability to implement business strategies, growth strategies and pursue business opportunities; state of the capital markets; the availability of funds and resources to pursue operations; decline of reimbursement rates; dependence on few payors; possible new drug discoveries; a novel business model; dependence on key suppliers; granting of permits and licenses in a highly regulated business; competition; difficulty integrating newly acquired businesses; low profit market segments; disruptions in or attacks (including cyber-attacks) on information technology, internet, network access or other voice or data communications systems or services; the evolution of various types of fraud or other criminal behaviour; the failure of third parties to comply with their obligations; the impact of new and changes to, or application of, current laws and regulations; the overall difficult litigation environment, including in the United States; increased competition; changes in foreign currency rates; loss of foreign private issuer status; risks relating to the deterioration of global economic conditions; increased funding costs and market volatility due to market illiquidity and competition for funding; critical accounting estimates and changes to accounting standards, policies, and methods; and the occurrence of natural and unnatural catastrophic events and claims resulting from such events, as well as other general economic, market and business conditions, amongst others, as well as any other risk factors detailed from time to time in the Company’s audited annual financial statements and the Company’s management’s discussion and analysis ("MD&A"). Although the Company has attempted to identify important factors that could cause actual actions, events or results to differ materially from those described in forward-looking statements, there may be other factors that cause actions, events or results not to be as anticipated, estimated or intended. The Company provides no assurance that forward-looking statements will prove to be accurate, as actual results and future events could differ materially from those anticipated in such statements. The Company does not intend, and do not assume any obligation, to update any forward-looking statements, other than as required by applicable securities laws.
-2-
These forward-looking statements are based on the reasonable beliefs, expectations and opinions of management of the Company as of the date of this AIF. Although the Company has attempted to identify important factors that could cause actual actions, events or results to differ materially from those contained in forward-looking information, there may be other factors that cause actions, events or results not to be as anticipated, estimated or intended. There is no assurance that such information will prove to be accurate, as actual results and future events could differ materially from those anticipated in such information. Accordingly, readers should not place undue reliance on forward-looking information or forward-looking statements. The Company does not intend, and does not assume any obligation, to update any forward-looking information or forward-looking statements, except as, and to the extent required by, applicable securities laws.
Unless otherwise indicated herein, references to "$", "$CDN" or "Canadian dollars" are to Canadian dollars, and references to "US$" or "U.S. dollars" are to United States dollars.
Name, Address and Incorporation
The Company was incorporated under the Business Corporations Act (Alberta) on March 5, 1997 under the name 730285 Alberta Inc. and changed its name to VF Capital Ltd. on June 19, 1997, and to Canadian Dental Partners Inc. on August 9, 1999, and to International Health Partners Inc. ("IHP") on January 25, 2001. Pursuant to a reverse take-over transaction completed on June 1, 2010 by way of a three cornered amalgamation between 0871455 B.C. Ltd., PHM DME Healthcare Inc. ("PHM/DME") and IHP (the "RTO Transaction"), IHP acquired all of the issued and outstanding shares in the capital of PHM/DME. IHP acquired all of the issued and outstanding shares of Stancap Holdings I Limited ("Stancap") concurrent with the RTO Transaction (the "SHL Share Exchange"). Upon completion of the RTO Transaction and the SHL Share Exchange, on June 1, 2010, IHP changed its name to Patient Home Monitoring Corp. ("PHM"), as the Company was then called. Pursuant to a Certificate of Continuance filed on December 30, 2013, the Company changed its jurisdiction of governance by continuing from Alberta into British Columbia.
On December 21, 2017, concurrently, but not in connection with, the closing of the court approved plan of arrangement (the "Arrangement") between the Company and Viemed Healthcare, Inc. ("Viemed"), the Company completed an amalgamation, by way of vertical short-form amalgamation under the Business Corporations Act (British Columbia) (the "BCBCA"), its wholly owned subsidiary, Stancap, (the "Amalgamation"). The Company is the continuing entity as a result of the Amalgamation and maintained its name as Patient Home Monitoring Corp. Pursuant to the Amalgamation, all of the issued and outstanding common shares of Stancap were cancelled, and the assets, obligations and liabilities of Stancap continued as the assets, obligations and liabilities of the Company. Where the term "Company" is used herein in the context of describing the Company’s assets and business, it may include its predecessor, PHM, prior to completion of the Amalgamation, as the context requires. When the term "Common Shares" is used herein, it may include the shares in the capital of the Company’s predecessor, PHM, prior to completion of the Amalgamation, as the context requires. On May 4, 2018, the Company changed its name from PHM to Protech Home Medical Corp.
Trading of the consolidated shares of PHM upon completion of the RTO Transaction commenced on the TSX Venture Exchange (the "TSX-V") on June 8, 2010 under the stock symbol "PHM".
Following completion of the Arrangement, the shares of the Company commenced trading on the TSX-V on December 22, 2017 under the stock symbol "PHM". Concurrent with the completion of the Consolidation (as defined below), the Company’s stock symbol was changed to "PTQ".
-3-
On December 31, 2018, the Company effected a consolidation (the "Consolidation") of the common shares in the capital of the Company (each, a "Common Share") on the basis of one (1) post-Consolidation Common Share for every five (5) pre-Consolidation Common Shares.
On May 4, 2018, the Company changed its name from "Patient Home Monitoring Corp." to "Protech Home Medical Corp.".
The Company’s head office is located at 1019 Town Drive, Wilder, Kentucky 41076, and its registered office is located at 2800 Park Place, 666 Burrard Street, Vancouver, British Columbia V6C 2Z7.
The following chart illustrates the Company’s corporate structure, including details of the jurisdiction of formation of each subsidiary. All holdings are at 100%.
-4-
GENERAL DEVELOPMENT OF THE BUSINESS
Fiscal Year Ended September 30, 2018
Arrangement
At an annual and special meeting of the Company’s holders of Common Shares (the "Shareholders") and holders of options (each, an "Option") to purchase Common Shares (the "Optionholders") held on December 15, 2017 (the "Meeting"), the Shareholders and Optionholders voted to approve, by 99.992% of the votes cast, the Arrangement between the Company and Viemed.
On December 20, 2017, the Company received the final order of the Supreme Court of British Columbia approving the Arrangement. On December 21, 2017, the Company completed the Arrangement under the provisions of Division 5 of Part 9 of the BCBCA, pursuant to which the Company completed a spin-out of Viemed pursuant to the arrangement agreement dated January 11, 2017 as amended on October 31, 2017 between the Company and Viemed (the "Arrangement Agreement").
As a result of the Arrangement, among other things, the Shareholders as of close of business on December 21, 2017 received one new Common Share (each, a "New PHM Share") and one-tenth of one common share in the capital of Viemed (the "Viemed Shares") for each Common Share held by such Shareholder immediately before the completion of the Arrangement (the "Effective Time"). Also in connection with the Arrangement: (a) for each Option held, each Optionholder that remained employed or engaged by the Company upon completion of the Arrangement received one new Option to purchase from the Company one New PHM Share (each, a "New PHM Option") and each Optionholder employed or engaged by Viemed received one New PHM Option (which expired on March 22, 2018) and one-tenth of one option to purchase from Viemed one Viemed Share; and (b) for each common share purchase warrant to purchase Common Shares of the Company (each, a "Warrant") held, each warrantholder received one Warrant to purchase from the Company one New PHM Share and one-tenth of one warrant to purchase from Viemed one Viemed Share.
As a result of the Arrangement, the Company’s business separated into two companies:
· | the Company, a Durable Medical Equipment company that specializes in delivering and servicing home-based medical equipment, including oxygen therapy, sleep apnea treatment and mobility equipment; and |
· | Viemed, a provider of equipment and home therapy to service patients with various respiratory diseases including Chronic Obstructive Pulmonary Disorder and Chronic Respiratory Failure and other neuromuscular diseases. |
The description of the Arrangement Agreement, both above and elsewhere in this AIF, is a summary only, is not exhaustive and is qualified in its entirety by reference to the terms of the Arrangement Agreement, which may be found under the Company’s profile on SEDAR at www.sedar.com.
Reorganization
Immediately before the completion of the Arrangement, in accordance with the terms of the asset purchase agreement between the Company and Viemed dated January 11, 2017 and as amended on October 31, 2017 (the "Asset Purchase Agreement"), and the share purchase agreement between PHM Logistics Corporation ("PHM Logistics"), an indirect wholly owned subsidiary of the Company and Viemed, a wholly owned subsidiary of PHM Logistics (the "Share Purchase Agreement", and together with the Asset Purchase Agreement, the "Purchase and Sale Agreements"), the Company and Viemed affected the reorganization whereby: (i) PHM Logistics transferred all of its equity interests in Sleep Management, L.L.C. and Home Sleep Delivered, L.L.C. (together, the "Sleep Subsidiaries"), (ii) all of the common stock in the authorized capital of Viemed, Inc. (the "Viemed Holdco Shares") were transferred to the Company through a series of distributions by the Company’s wholly-owned subsidiaries to their direct shareholders, with the final distribution to the Company as a return of paid-up capital; and (iii) the Company contributed to Viemed the Viemed Holdco Shares on an "as is, where is" basis in exchange for all of the issued and outstanding Viemed Shares.
-2-
The description of the Purchase and Sale Agreements, both above and elsewhere in this AIF, is a summary only, is not exhaustive and is qualified in its entirety by reference to the terms of such agreements, which may be found under the Company’s profile on SEDAR at www.sedar.com.
Name Change
On May 4, 2018, the Company changed its name from Patient Home Monitoring Corp. to Protech Home Medical Corp. as part of the Company’s makeover.
In September 2018, the Company completed the acquisition of Coastal Med Tech Inc. ("CMT"), a top provider of respiratory services to patients in the Northeast market where the Company’s Black Bear Medical division operates.
Fiscal Year Ended September 30, 2019
On November 2, 2018, the Company completed a bought deal private placement offering with Beacon Securities Limited ("Beacon"), whereby Beacon purchased 28,248,000 Common Shares of the Company at a price of $0.12 per Common Share (the "Issue Price"), for gross proceeds to the Company of $3,389,760, which included 3,248,000 Common Shares issued as a result of the partial exercise of the over-allotment option. The Company also completed a non-brokered private placement of Common Shares of the Company at the Issue Price with insiders for gross proceeds to the Company of $1,100,000.
In the first fiscal quarter of 2020, the period ending December 31, 2018, the Company completed the acquisitions of Riverside Medical, Inc. ("Riverside Medical") and Central Oxygen, Inc. ("Central Oxygen"). Riverside Medical is a provider of superior home respiratory services and equipment throughout West Tennessee, Southern Middle Tennessee and Northern Mississippi. The Riverside Medical acquisition was the Company’s first entry into the State of Tennessee, which neighbors the Company’s two largest business units and gave it immediate access to the insurance contracts necessary to serve patients within the state. Central Oxygen is also focused on the respiratory business and is located in up-state Indiana. The acquisition allowed the Company to expand its current operations in Indiana from a geographic perspective and brought additional insurance contracts into the Company’s domain.
On March 7, 2019, he Company completed a bought deal private placement of 8.0% unsecured convertible debentures (the "2019 Debentures"), through a syndicate of underwriters led by Beacon, and including Canaccord Genuity Corp. ("Canaccord") and Haywood Securities Inc., for gross proceeds to the Company of $15 million, including the full exercise of the underwriters' option. The 2019 Debentures bear interest from the date of closing at a rate of 8.0% per annum, payable semi-annually in arrears on the last day of June and December in each year and will mature on March 7, 2024 (the "Maturity Date"). The principal amount of the 2019 Debentures are convertible into Common Shares at the option of the holder at any time prior to the close of business on the last business day immediately preceding the Maturity Date at a conversion price of $1.30 per Common Share, subject to certain acceleration provisions.
On April 30, 2019 the Company redeemed its 7.5% non-convertible unsecured subordinated debentures due December 31, 2019 (the "2014 Debentures"), representing a redemption in full of all of the currently outstanding 2014 Debentures.
On May 3, 2019, the Company discovered it was subject to a cyberscam breach of its email system. The unlawful intrusion into one employee’s account, led to fraudulent banking information being relayed regarding a planned wire transfer of $9.2 million toward the redemption of the Company’s 2014 Debentures. In early September, 2019, $8.6 million of the misappropriated funds pursuant to the cyberscam incident were returned to the Company by the bank of the perpetrator pursuant to a final Garnishee Order Absolute from a Court of Hong Kong.
In July 2019, the Company sold substantially all of the assets of its only non-core asset, wholly-owned Patient Home Monitoring, Inc. ("PHM Inc."). The cash consideration at close was approximately $4.5 million. PHM Inc. accounted for less than 5% of total consolidated revenues and was no longer consistent with the corporate initiatives of the Company.
-3-
Fiscal Year Ended September 30, 2020
In October 2019, the Company completed the acquisition of Cooley Medical Equipment, Inc. ("CME"), a company based in Kentucky. CME is a leader and top provider of respiratory services in Eastern and Central Kentucky with six locations that, when combined with the Company’s current operations, will significantly expand the Company’s geographical footprint.
In December 2019, the Company completed the acquisition of Acadia Medical, Inc. ("AMI"), a company based in Maine. AMI is a leader and top provider of respiratory services in the State of Maine. It currently has four locations and will allow the Company to further expand its geographical footprint and provide a larger number of services in the State of Maine.
On April 20, 2020 the Company announced that it was approved for a $5.97 million loan under the Payroll Protection Program ("PPP") administered by the U.S. Small Business Administration, that originated from the U.S. Coronavirus Aid, Relief and Economic Security (CARES) Act. The loan has a term of two years, is unsecured, and is guaranteed by the U.S. Small Business Administration. The loan bears interest at a fixed rate of 1.0 percent per annum with the first six months of interest deferred and will be forgiven if the loan proceeds are used by the Company to cover payroll costs (including benefits), rent and utilities during the eight-week period following the loan origination date. The Company expects to meet the requirements for full loan forgiveness. The forgiven amount is not included in taxable income.
On June 2, 2020, the Company commenced trading on the OTCQX® under the symbol "PTQQF".
On June 29, 2020, the Company completed a bought deal prospectus offering of 25,001,000 units for an aggregate gross proceeds of $28,751,150, which included the exercise in full of the 15% over-allotment option. The syndicate of underwriters for the offering was co-led by Beacon, as sole bookrunner, and Canaccord. The units under the Offering were offered and sold by way of a short form prospectus filed in British Columbia, Alberta and Ontario. The Company also completed its (i) brokered private placement of 1,750,000 units for additional gross proceeds of $2,012,500, which was conducted by a syndicate of agents co-led by Beacon, as sole bookrunner, and Canaccord; and (ii) its non-brokered private placement of 927,825 units for additional gross proceeds of $1,067,000, with Gregory Crawford, Chairman and CEO of the Company, and Mark Greenberg, a director of the Company. Each unit was comprised of one Common Share and one-half of one common share purchase warrant. Each whole warrant is exercisable to acquire one Common Share at an exercise price of $1.60 per share, subject to adjustment in certain events, until June 29, 2021.
On August 31, 2020, the Company complete the acquisition of Health Technology Resources, LLC ("HTR"), a leader in the respiratory home care services industry in the state of Illinois. HTR is also licensed in the state of Indiana and provides services to patients in Northwest Indiana. The Company acquired HTR for total cash consideration of approximately $5.4 million.
On September 21, 2020, the Company entered into an asset-based revolving credit facility (the "Credit Facility") with CIT Bank, N.A. ("CIT"), pursuant to which CIT has agreed to advance up to US$20 million at a tiered rate. The Credit Facility has a four year maturity and may be extended pursuant to both parties agreement.
Developments Subsequent to the Fiscal Year ended September 30, 2020
On October 23, 2020, the Company acquired Sleepwell, LLC ("Sleepwell"), a leader of sleep services in the State of Georgia. The Company acquired Sleepwell for a combination of cash and share consideration of approximately $9.3 million and $5.1 million, respectively.
On December 9, 2020, Dr. Kevin A. Carter joined the board of directors of the Company (the “Board”) as an independent director.
-4-
On January 13, 2021, the Company announced that it had applied to list its common shares on the NASDAQ Capital Market.
On February 2, 2021, the Company announced that it had acquired Mayhugh Drugs Inc. ("MME"), a leader in the respiratory home care services industry in Northern Florida. The Company acquired MME for total consideration of approximately $5.8 million.
Significant Acquisitions During 2020
During 2020 the Company did not complete any significant acquisitions during its most recently completed financial year for which disclosure is required under Part 8 of National Instrument 51-102 – Continuous Disclosure Obligations ("NI 51-102") of the Canadian Securities Administrators.
DESCRIPTION OF THE BUSINESS
Company Overview
The Company’s main revenue source is in providing in-home medical equipment and supplies, providing respiratory and durable medical equipment, to patients in the United States.
Business Objective
The Company, through its subsidiaries, provides in-home medical equipment and supplies, durable medical equipment, to patients in the United States. T. The Company seeks to continue to expand its offerings to include the management of several chronic disease states focusing on patients with heart or pulmonary disease, sleep apnea, reduced mobility and other chronic health conditions requiring home-based services in the United States. The initial service line includes providing in-home equipment, supplies and services to patients in the United States. The primary business objective of the Company is to create shareholder value by continuing to offer a broader range of services to patients in need of in-home equipment and chronic disease management, as well as acquiring other companies operating in the United States healthcare service and product sectors. The Company’s organic growth strategy is aggregate patients in existing or complimentary markets, through both acquisitions and taking market share directly from competitors, as well as its technology investment plans, whereby the Company plans to leverage technology to increase patient compliance by making ongoing training and patient follow up easier on the patient and improve the speed and ease of equipment and device delivery and set-up.
Key Performance Drivers
The Company’s revenue lines are based on fulfilling prescriptions for services and products for patients that suffer from chronic illness. The growing niche market of home equipment and monitoring provides significant opportunity to garner market share and may require the ongoing deployment of up-front capital to purchase monitoring and treatment equipment. The Company is currently well positioned to acquire the equipment necessary to grow its annuity stream businesses.
Subsidiaries
The business of each of the Company’s material subsidiaries is discussed below.
PHM Logistics Corporation
The PHM Logistics platform provides the Company with supply chain management, regulatory device reporting and home delivery of healthcare devices. As PHM Logistics grows to serve an increasing volume of patients, there is increased complexity in ordering, managing, and delivering both devices and consumables to patients in numerous locations testing on different schedules. PHM Logistics’ focus is to continue and improve the logistics support for the Company. In order to support the Company’s numerous acquisitions, PHM Logistics has become the holding company for several of the Company’s acquired subsidiaries.
-5-
Resource Medical Group, LLC and Resource Medical Group of Charleston, LLC
Resource Medical Group, LLC and Resource Medical Group of Charleston, LLC (collectively, "Resource Medical") are South Carolina limited liability companies, acquired by the Company in January 2014, which offer an array of durable medical equipment focused on pulmonary disease services, home-based sleep apnea and chronic obstructive pulmonary disease treatments, as well as home-based healthcare logistics and services.
Resource Medical have a strong presence in South Carolina and an expansive product offering, including the following: bariatric equipment, bathroom safety products, Bi-level PAP (bilevel positive airway pressure), canes/crutches, continuous positive airway pressure ("CPAP") and CPAP masks and accessories, hospital beds, humidifiers, nebulizer and compressors, oxygen concentrator, patient lifts, walkers, wheelchairs, and products for wound care. The demand for these items is expected to grow as the United States population continues to age and chronic diseases among those aged 65 and over continue to increase.
Care Medical Partners LLC
Care Medical Partners LLC ("CMP"), which was acquired by the Company in June 2014 and consists of Care Medical of Athens, Inc., Care Medical Atlanta, LLC, Care Medical of Augusta, LLC, Care Medical of Gainesville, LLC, and Care Medical Savannah, LLC, focuses on CPAP and sleep apnea equipment and supplies, mobility equipment, oxygen and other related equipment and medical supplies. Licensed to do business in Georgia and South Carolina and located throughout Georgia, CMP has added to the Company’s product and service line in a key location, increasing access to patients. Providing both home and hospital delivery, CMP provides medical supplies, medical equipment in addition to mobility equipment and respiratory equipment.
Black Bear Medical, Inc., Black Bear Medical North, Inc. and Black Bear Medical NH, Inc.
Black Bear Medical Group, Inc. was acquired by the Company in January 2015, which consists of Black Bear Medical, Inc., Costal Med-Tech Corp. and Black Bear Medical NH, Inc. (collectively, "BBM"), being entities licensed to do business in Maine and New Hampshire. BBM specializes in home-based healthcare services, including mobility solutions, and other durable medical equipment. These entities have widened the Company’s reach to upper east coast patients in Maine and New Hampshire, strengthening its geographic presence and increasing its offerings.
Legacy Oxygen & Home Care Equipment, LLC
The Company acquired Legacy Oxygen & Home Care Equipment, LLC, a regionally focused company, licensed to do business in Kentucky and Tennessee in May 2015. The company offers home-based medical equipment and services for patients with chronic pulmonary conditions across multiple locations in Kentucky.
Patient-Aids, Inc.
The Company acquired Patient-Aids, Inc. ("Patient-Aids"), a high growth, high margin, and profitable Ohio-based company focused on providing home-based healthcare services. Patient-Aids has, since 1982, been a dominant business in their region being licensed to do business in Ohio, Kentucky, and Indiana. Its product lines and services focus on treating patients with chronic power mobility conditions, respiratory conditions, and patients requiring traditional durable medical home-based equipment.
Cooley Medical Equipment, Inc.
CME is a participating Medicare provider that provides (i) nebulizers, oxygen concentrators, and CPAP and BiPAP units, (ii) traditional and non-traditional durable medical respiratory equipment and services, and (iii) non-invasive ventilation equipment, supplies and services. CME presently has six locations based in Eastern and Central Kentucky and Virginia. CME is considered one of Kentucky’s largest home medical equipment and medical service providers.
-6-
Sleepwell, LLC
Sleepwell is a participating Medicare provider that primarily provides sleep-related products and services such as PAP units, supplies, and services. Sleepwell is a leader in sleep services in the State of Georgia, with significant penetration in the Southeastern corridor of the region. In addition to Georgia, Sleepwell also provides sleep services to patients in Dayton, Ohio, which is Sleepwell’s wholly-owned subsidiary, Tuscan, Inc., dba Halsom Home Care.
Mayhugh Drugs Inc.
MME was established on January 1, 1972 in State of Florida. The company also distributes home durable medical equipment, CPAP machines, oxygen generators/concentrators, wheelchairs, home hospital beds, and other ancillary home medical equipment.
Specialized Skills and Knowledge
The Company employs a team of respiratory therapists to provide the services enumerated above. Each respiratory therapist is required to be state licensed, either as a Registered Respiratory Therapist and/or Certified Respiratory Therapist. The Company encourages and reimburse its respiratory therapists for pursuing the additional certification level of COPD Educator, which enhances the work that may be done with patients in and out of the hospital environment. Its clinical team manages patients that use its services that range from nebulizers to invasive ventilation.
The Company also employs a team of Assistive Technology Professionals ("ATP") who provide customized mobility and bath safety equipment for patients. Its ATPs are certified through NRRTS (National Registry of Rehabilitation Technology Suppliers) and RESNA (Rehabilitation Engineering and Assistive Technology Society of North America). Part of the ATP team has gone further in their education to receive certifications that allow them to specialize in areas within complex rehabilitation.
The Company’s employees receive ongoing training that relates to the healthcare delivery system allowing the employees to have a complete understanding of the services that the Company provides to its patients.
Competitive Conditions
The Company has physical operations in 11 states. The Company participates in a highly competitive market, which may become more competitive as new players enter. Certain competitors have vertically integrated manufacturing and services sectors of the market. While most of the DME distributor industry is fragmented into small regional players, there are some noteworthy companies that have an acquisitive strategy similar to the Company. Within these markets the nationally based companies such as Lincare, Apria, Rotech, Adapt Healthcare and Aerocare are the competitors that the Company faces more consistently.
New Products
The Company plans to expand service lines across each of its subsidiaries that does not have a complete service offering found in other subsidiaries. As an example, BBM does not currently offer any respiratory services but it does have the necessary certifications and/or state licensing to provide such services. The objective would allow BBM to provide these services to the same patient population that they currently serve for mobility care, but who must go to another equipment provider to secure their respiratory needs.
The Company plans to investigate and consider additional services that would complement the services already offered by its subsidiaries that would serve the current patient population and/or help the Company break into new segments of the regional populations it covers.
Components
The Company has strong relationships with its suppliers and has gained a lot of purchasing power as a result of being a member of two purchasing groups (VGM and The MedGroup) that help secure very competitive pricing. It has quarterly business reviews with its top vendors and is an early adopter of their new product introductions. There are few manufacturers of equipment which can be used at home. The emerging nature of the market presents risks that vendors may not be able to provide equipment to satisfy demand. The Company participates in test pilots that help it understand what new technologies are available and will continue to do so to identify steps it may need to take to be the industry leader.
-7-
Cycles
The calendar year is influential throughout the American health system due to the need for most patients to meet their deductibles as part of their insurance plans. These deductibles are generally met in the second half of the year, unless there is an immediate need for the treatment prescribed.
The industry is also influenced by weather changes or events. When the weather turns cold, more respiratory needs are experienced. If significant weather events occur (such as hurricanes, massive tornadoes, etc.), it leads to a demand for replacement equipment. Unique situations can arise from a business unit branch. Two such examples come from the Company’s Prothrombin Time International Normalized Ratio ("PTINR") business and BBM.
The Company’s fiscal Q1 tends to see a decrease in enrollments due to weather, office closings and holiday hours providing fewer opportunities to train patients. The demand is constant for testing; the availability of training of patients is impacted as described.
With complex rehabilitation, BBM typically sees the best reimbursement from September to February largely due to the involvement of school therapists and physician practices as their patient base expands with the beginning of the school year.
Economic Dependence
The Company earns revenues by seeking reimbursement from Medicare and private health insurance companies, with the Medicare program of the United States government being the primary entity making payments. If the Medicare program were to slow payments of the Company receivables for any reason, the Company would be adversely impacted.
Changes to Contracts
The Centers for Medicare & Medicaid Services ("CMS") policies of health insurance for Medicare in the United States may affect the amount of revenue the Company receives.
Employees
As at September 30, 2020, the Company had a total of 445 employees. In addition, the Company has staff augmentation arrangements with global partners.
Foreign Operations
As at the date hereof, the Company conducts all of its operations through its subsidiaries, which operate exclusively in the United States and together have a service coverage area of 10 states.
RISK FACTORS
The following major risk factors should be given special consideration when evaluating trends, risks and uncertainties relating to the Company’s business. Any of the following risk factors could cause circumstances to differ materially from those described in forward-looking statements relating to the Company and could have a material adverse effect upon the Company, its business and future prospects. Although the following are major risk factors identified by management, they do not comprise a definitive list of all risk factors related to the Company. In addition, other risks and uncertainties not presently known by management could impair the Company and its business in the future.
-8-
Market Price of the Common Shares
The Common Shares are currently listed and posted for trading on the TSXV. Securities of small-cap and healthcare companies have experienced substantial volatility in the past, often based on factors unrelated to the financial performance or prospects of the companies involved. These factors include macroeconomic developments in North America and globally, and market perceptions of the attractiveness of particular industries. The price of the Common Shares is also likely to be significantly affected by short-term changes in cost of goods, or in financial condition or results of operations of the Company. Other factors unrelated to the performance of the Company that may have an effect on the price of the Common Shares include the following: the extent of analytical coverage available to investors concerning the business of the Company may be limited if investment banks with research capabilities do not follow the Company’s securities; lessening in trading volume and general market interest in the Company’s securities may affect an investor’s ability to trade significant numbers of the Common Shares; the size of the Company’s public float may limit the ability of some institutions to invest in the Company’s securities; a substantial decline in the price of the Common Shares that persists for a significant period of time could cause the Company’s securities, if listed on an exchange, to be delisted from such exchange, further reducing market liquidity; adverse changes in general market or industry conditions or economic trends; the COVID-19 pandemic, or a variety of other factors.
As a result of any of these factors, the market price of the Common Shares at any given point in time may not accurately reflect the long-term value of the Company. Securities class-action litigation often has been brought against companies following periods of volatility in the market price of their securities. The Company may in the future be the target of similar litigation. Securities litigation could result in substantial costs and damages and divert management’s attention and resources.
Future Sales of Shares by Shareholders
Sales of a large number of the Common Shares in the public markets, or the potential for such sales, could decrease the trading price of the Common Shares and could impair the Company’s ability to raise capital through future sales of the Common Shares. The Company cannot predict the effect that future sales of Common Shares or other equity-related securities would have on the market price of the Common Shares. The price of the Common Shares could be affected by possible sales of the Common Shares by hedging or arbitrage trading activity. If the Company raises additional funding by issuing additional equity securities, such financing may substantially dilute the interests of shareholders of the Company and reduce the value of their investment.
Dilution
The Company may require additional funds in respect of the further development of the Company’s business. If the Company raises funds by issuing additional equity securities, such financing will dilute the equity interests of its shareholders.
Global financial conditions can reduce share prices and limit access to financing
The economic viability of the Company’s business plan is impacted by the Company’s ability to obtain financing. Global economic conditions impact the general availability of financing through public and private debt and equity markets, as well as through other avenues.
Significant political, market and economic events may have wide-reaching effects and, to the extent they are not accurately anticipated or priced into markets, may result in sudden periods of market volatility and correction. Periods of market volatility and correction may have an adverse impact on economic growth and outlook, as well as lending and capital markets activity, all of which may impact the Company’s ability to secure adequate financing on favourable terms, or at all.
Furthermore, general market, political and economic conditions, including, for example, inflation, interest and currency exchange rates, political developments, legislative or regulatory changes, social or labour unrest and stock market trends will affect the Company’s operating environment and its operating costs, profit margins and share price. Uncertainty or adverse changes relating to government regulation, economic and foreign policy matters, and other world events have the potential to adversely affect the performance of and outlook for the Canadian and global economies, which in turn may affect the ability of the Company to access financing on favourable terms or at all. For example, recent uncertainty regarding Canada’s ability to access North American markets via the North American Free Trade Agreement and increased levels of turmoil in certain geopolitical hotspots have the potential to increase uncertainty and volatility in Canadian and global markets, respectively. The occurrence of negative sentiment or events in the Canadian and broader global economy could have a material adverse effect on the Company’s business, financial condition, results of operations, cash flows or prospects.
-9-
Limited History of Operations
The Company has a limited history of operations. There can be no assurance that the business of the Company and/or its subsidiaries will be successful and generate, or maintain, any profit.
Novel Business Model
Home monitoring of patients is a relatively new business, making it difficult to predict market acceptance, development, expansion and direction. The home monitoring services to be provided by the Company represent a relatively new development in the United States healthcare industry. Accordingly, adoption by patients and physicians can require education, which can result in a lengthy sales cycle. The market may take time to develop. Physicians and/or patients may be slow to adopt new methods. The development of the Company’s home monitoring business is dependent on a number of factors. These factors include: the Company’s ability to differentiate the Company’s services from those of the Company’s competitors; the extent and timing of the acceptance of the Company’s services as a replacement for, or supplement to, traditional methods of servicing and monitoring patients; the effectiveness of the Company’s sales and marketing and engagement efforts with customers and their health plan participants; the Company’s ability to provide quality customer service, as perceived by patients and physicians.
Because the monitoring business is evolving, the Company may not be able to anticipate and adapt to the developing market. Moreover, the Company cannot predict with certainty the future growth rate or the ultimate size of the market.
Reimbursement Rates May Decline
Reimbursement for services to be provided by the Company come primarily from Medicare and private health insurance companies. The reimbursement rates offered are outside the control of the Company. Reimbursement rates in this area, and much of the United States health care market in general, have been subject to continual reductions as health insurers and governmental entities attempt to control health care costs. The extent and timing of any reduction in reimbursement rates cannot be predicted by the Company.
Reductions in reimbursement rates can have a material impact on the profitability of the Company’s operations. A reduction in reimbursement may be unrelated to any concurrent decline in the cost of operations, thereby resulting in reduced profitability. The Company’s costs of operations could increase, but the cost increases may not be passed on to customers because reimbursement rates are set without regard to the cost of service.
Loss of Competitive Bids
On the reimbursement front, the CMS oversees a competitive bidding program covering durable medical equipment ("DME"), the process in which a Medicare supplier provides DME products to Medicare beneficiaries. Pursuant to the CMS, beginning in 2021, a new competitive bidding process known as Round 2021 will be launched by the CMS, covering contracts running from January 1, 2021 to December 31, 2023. It is possible that the Company may not be selected in some or all the Competitive Bidding Area ("CBA") that is has bid for. It is also possible that the Company may not be selected for some or all of the product categories that it has bid more. Non-selection for CBA and/or product category may result in loss of revenue and referral sources.
-10-
Dependence Upon Relationships with Key Suppliers
There are few manufacturers of equipment which can be used for home use of patients. There is the possibility that a new meter will encounter difficulties or "bugs" when first sent to market, and that initial technical support costs may be higher than for more well-established meters. Even if the Company switches to other competing meters, they may also encounter technical difficulties or regulatory issues. The emerging nature of the market presents risks that suppliers may not be able to provide equipment to satisfy demand. Demand may outstrip supply, leading to equipment shortages. Conversely, incorrect demand forecasting could lead to excess inventory. The industry is subject to a high level of regulatory scrutiny, and government or manufacturer recalls could adversely affect the Company’s ability to provide services and achieve revenue targets.
Inadequate supply could impair the Company’s ability to attract new business and could create upward pricing pressure on equipment and supplies, adversely affecting margins for the Company. Several equipment manufacturers are pursuing a strategy of vertical integration, and should the Company ever need to order equipment from those manufacturers, such equipment may not be available on favourable terms.
Reliance Upon Few Payers
The Company earns revenues by seeking reimbursement from Medicare and private health insurance companies, with the Medicare program of the United States government being the primary entity making payments. If the Medicare program were to slow payments of the Company receivables for any reason, the Company would be adversely impacted. In addition, both governmental and private health insurance companies may seek ways to avoid or delay reimbursement, which could adversely affect cash flow and revenues for the Company.
Government Regulation
Some operations of the Company require certain licences and permits from the authorities in the United States. The ability of the Company and its subsidiaries to obtain, sustain or renew any such licences and permits on acceptable terms is subject to changes in regulations and policies and to the discretion of the applicable authorities or other governmental agencies. There is no guarantee that the Company will meet these conditions.
The Company is subject to regulation from United States federal and state authorities. Regulatory action could disrupt the Company’s ability to provide services. Such regulatory action could come in the form of actions against manufacturers, unrelated to the Company’s conduct, or actions based upon the Company’s operation. Regulatory action could prevent or delay reimbursement for certain services.
There could also be legislative action that could adversely affect the Company’s business model, including, without limitation: a decision by the United States government to become the exclusive provider of health care services at some time in the future; changes in United States federal or state laws, rules, and regulations, including those governing the corporate practice of medicine, and fee splitting; and changes in the United States Anti-Kickback Statute and Stark Law and/or similar state laws, rules, and regulations. Conversely, budgetary problems in the United States could lead to reduced funding, substantial modification, or elimination of Medicare programs, which would end reimbursement for many patients. There can be no assurance that new rules and regulations will not be enacted or that existing rules and regulations will not be applied in a manner which could limit or curtail the business of the Company. Amendments to current laws and regulations could have a substantial adverse impact on the Company.
CMS policies of health insurance for Medicare in the United States may affect the amount of revenue the Company receives. The Company is subject to risk that reimbursement rates for its services from both federal and private payers will decline over time. Reimbursement from federal programs is subject to constant regulatory review and increasing audits by federal authorities, the effect of which may be to increase costs of service and delay or affect reimbursement, which could negatively impact cash flow and/or revenue. Audits may be costly and time consuming, and could delay cash flow, even if the Company acted properly in all respects.
-11-
The policies of health insurance carriers in the United States may affect the amount of revenue the Company receives.
Highly Competitive Market
The industry in which the Company operations is a highly competitive market and may become more competitive as new players enter. Certain competitors will be subsidiaries or divisions of larger, much better capitalized companies. Certain competitors will have vertically integrated manufacturing and services sectors of the market. The Company may have less capital and may encounter greater operational challenges in serving the market. Better capitalized competitors may also be expected to borrow money or raise debt to purchase equipment more easily than the Company.
Low Profit Market Segments
Where the Company provides services to a patient who does not use provide rental equipment often or for an extended period of time, profitability may be unlikely in respect of that patient. In these cases, the Company may not have a rental equipment with the patient long enough to recoup costs. Where the Company owns the rental equipment, the failure of the patient to return the equipment to the Company may impact profitability. Legal costs of bringing an action to obtain return of a equipment may exceed the value of the equipment, leading to losses with certain patient populations even under a favourable reimbursement environment.
Foreign Subsidiaries
The Company conducts all its operations through its United States subsidiaries. Therefore, to the extent of these holdings, the Company (directly and indirectly) is dependent on the cash flows of these subsidiaries to meet its obligations. The ability of such subsidiaries to make payments to their parent companies may be constrained by the following factors: the level of taxation, particularly corporate profits and withholding taxes, in the jurisdiction in which each subsidiary operates; and the introduction of exchange controls or repatriation restrictions or the availability of hard currency to be repatriated.
Attraction and Retention of Key Personnel Including Directors
The Company has a small management team and the loss of a key individual or inability to attract suitably qualified staff could have a material adverse impact on the business of the Company. The Company may also encounter difficulties in obtaining and maintaining suitably qualified staff. The success of the Company depends on the ability of management to interpret market data correctly and to interpret and respond to economic, market and other conditions in order to locate and adopt appropriate opportunities. No assurance can be given that individuals with the required skills will continue employment with the Company or that replacement personnel with comparable skills can be found. The Company is dependent on the services of key executives, including the Board and a small number of highly skilled and experienced executives and personnel. Due to the relatively small size of the Company, the loss of these persons or the Company’s inability to attract and retain additional highly skilled employees may adversely affect its business and future operations.
Growth Management
The Company may have difficulty identifying or acquiring suitable acquisition targets and maintaining the organic growth which is a significant aspect of its business model. If it is unable to manage growth, the Company may be unable to achieve its expansion strategy, which could adversely impact its earnings per share and its revenue and profits.
Dividends
The Company has never declared or paid any dividends on its Common Shares. The Company intends, for the foreseeable future, to retain tis future earnings, if any, to finance our business activities. The payment of future dividends, if any, will be reviewed periodically by the Board and will depend upon, among other things, conditions then existing including earnings, financial conditions, cash on hand, financial requirements to fund business activities, development and growth, and other factors that the Board may consider appropriate in the circumstances.
-12-
Discretion in the Use of Available Funds
Management has broad discretion concerning the use of the Company’s available funds as well as the timing of expenditures. As a result, shareholders and investors will be relying on the judgment of management for the application of the available funds of the Company. Management may use the available funds in ways that an investor may not consider desirable. The results and the effectiveness of the application of the available funds are uncertain. If the available funds are not applied effectively, the Company’s results of operations may suffer.
Potential Conflicts of Interest
There are potential conflicts of interest to which some of the directors and officers of the Company may be subject in connection with the operations of the Company and situations may arise where the directors and officers may be in direct competition with the Company. Conflicts of interest, if any, which arise may be subject to and be governed by procedures prescribed by the BCBCA which require a director or officer of a corporation who is a party to or is a director or an officer of or has a material interest in any person who is a party to a material contract or proposed material contract with the Company to disclose his interest and to refrain from voting on any matter in respect of such contract unless otherwise permitted under the BCBCA. Any decision made by any of such directors and officers involving the Company should be made in accordance with their duties and obligations to deal fairly and in good faith with a view to the best interests of the Company and its shareholders.
Insurance and Uninsured Risks
The Company’s business is subject to a number of risks and hazards generally, including general liability. Such occurrences could result in damage to property, inventory, facilities, personal injury or death, damage to the properties of the Company, or the properties of others, monetary losses, and possible legal liability.
The Company may be subject to product liability and medical malpractice claims, which may adversely affect its operations. The industry in which the Company operates is highly regulated, and it may be subject to regulatory scrutiny for violations of regulations and laws. The Company could be adversely affected by the time and cost involved with regulatory investigations even if it has operated in compliance with all laws. Investigations could also adversely affect the timely payment of receivables.
Although the Company maintains insurance to protect against certain risks in such amounts as it considers to be reasonable, its insurance will not cover all the potential risks associated with its operations. The Company may also be unable to maintain insurance to cover these risks at economically feasible premiums. Insurance coverage may not continue to be available or may not be adequate to cover any resulting liability. The Company might also become subject to liability which may not be insured against or which the Company may elect not to insure against because of premium costs or other reasons. Losses from these events may cause the Company to incur significant costs that could have a material adverse effect upon its financial performance and results of operations.
Additional Capital
The development and the business (including acquisitions) of the Company may require additional financing, which may involve high transaction costs, dilution to shareholders, high interest rates or unfavorable terms and conditions. Failure to obtain sufficient financing may result in the delay or indefinite postponement of its business plans. The initial primary source of funding available to the Company consists of equity financing. There can be no assurance that additional capital or other types of financing will be available if needed or that, if available, the terms of such financing will be favourable to the Company.
-13-
Loss of Foreign Private Issuer Status
The Company may lose its foreign private issuer status in the future, which could result in significant additional costs and expenses. As a foreign private issuer, as defined in Rule 3b-4 under the Securities Exchange Act of 1934, as amended (the "Exchange Act"), the Company is currently exempt from certain of the provisions of the U.S. federal securities laws. For example, an issuer with total assets in excess of US$10 million and whose outstanding equity securities are held by 2,000 or more persons, or 500 or more persons who are not "accredited investors", must register such securities as a class under the Exchange Act. However, as a foreign private issuer subject to Canadian continuous disclosure requirements, the Company may claim the exemption from registration under the Exchange Act provided by Rule 12g3-2(b) thereunder, even if these thresholds are exceeded. To be considered a foreign private issuer, the Company must satisfy a United States shareholder test (not more than 50% of the voting securities of a company must be held by residents of the United States) if any of the following disqualifying conditions apply: (i) the majority of the Company’s executive officers or directors are United States citizens or residents; (ii) more than 50 percent of the Company’s assets are located in the United States; or (iii) the Company’s business is administered principally in the United States. Based on information available as at March 31, 2021 (the last business day of the Company’s second fiscal quarter), the Company estimates that approximately 18.4% of the Company’s outstanding voting securities are directly or indirectly held of record by residents of the United States. If the Company loses its status as a foreign private issuer, these regulations could apply and it could also be required to commence reporting on forms required of U.S. domestic companies, such as Forms 10-K, 10-Q and 8-K. It could also become subject to U.S. proxy rules, and certain holders of its equity securities could become subject to the insider reporting and "short swing" profit rules under Section 16 of the Exchange Act. In addition, any securities issued by the Company if it loses foreign private issuer status would become subject to certain rules and restrictions under the Securities Act of 1933, as amended, even if they are issued or resold outside the United States. Compliance with the additional disclosure, compliance and timing requirements under these securities laws would likely result in increased expenses and would require the Company’s management to devote substantial time and resources to comply with new regulatory requirements.
United States Operations and Exchange Rate Fluctuations
All of the Company’s revenue is generated from operations in the United States. The Company is subject to a number of risks associated with its operations that may increase liability and costs and require significant management attention. These risks include:
§ | compliance with laws of the United States that apply to the Company’s United States operations, including lawful access, privacy laws and anti-corruption laws; |
§ | instability in economic or political conditions, including inflation, recession and political uncertainty; |
§ | potential adverse tax consequences; and |
§ | litigation in United States courts. |
In addition, the Company is exposed to foreign exchange risk as a result of substantially all of its revenue generating operations taking place in the United States and thus, revenues and expenses being earned and paid in United States dollars while the Company reports its financial statements in Canadian dollars. If the Canadian dollar appreciates relative to the United States dollar, the Company’s Canadian dollar expenses and revenues will decrease when translated from United States dollars for financial reporting purposes. Conversely, if the Canadian dollar depreciates relative to the United States dollar, the Company’s Canadian dollar expenses and revenues will increase when translated from United States dollars for financial reporting purposes. In addition, exchange rate fluctuations may affect the costs that the Company incurs in its operations. The appreciation of non-United States dollar currencies against the United States dollar can increase the cost of operations in United States dollar terms. Foreign exchange rate fluctuations may materially affect the Company’s financial condition and results of operations in future periods.
The Company will continue to translate the assets and liabilities of its United States dollar functional currency subsidiaries into Canadian dollars using exchange rates in effect at the end of each period. Revenue and expenses for these subsidiaries are translated using average exchange rates that approximate those in effect during the period. The Company will continue to maintain cash balances in both United States and Canadian dollars, but management anticipates that it will not purchase any securities or financial instruments to speculate on or hedge against a rise or fall in the value of the United States dollar.
-14-
Global Economy
Recent market events and conditions, including disruptions in the international credit markets and other financial systems and the deterioration of global economic conditions, could impede the Company’s access to capital or increase the cost of capital. Notwithstanding various actions by the United States and foreign governments, concerns about the general condition of the capital markets, financial instruments, banks, investment banks, insurers and other financial institutions caused the broader credit markets to deteriorate and stock markets to fluctuate substantially.
These disruptions in the current credit and financial markets have had a significant material adverse impact on a number of financial institutions and have limited access to capital and credit for many companies. These disruptions could, among other things, make it more difficult for the Company to obtain, or increase its cost of obtaining, capital and financing for its operations. Access to additional capital may not be available to the Company on terms acceptable to it, or at all.
Cybersecurity
The Company relies on digital and internet technologies to conduct and expand its operations, including reliance on information technology to process, transmit and store sensitive and confidential data, including protected health information, personally identifiable information, and proprietary and confidential business performance data. As a result, the Company and/or its customers are exposed to risks related to cybersecurity. Such risks may include unauthorized access, use, or disclosure of sensitive information, corruption or destruction of data, or operational disruption resulting from system impairment (e.g., malware). The Company’s operations depend, in part, on how well it protects networks, equipment, information technology systems and software against damage from a number of threats, including, but not limited to damage to hardware, computer viruses, hacking and theft. The Company’s operations also depend on the timely maintenance, upgrade and replacement of networks, equipment, information technology systems and software, as well as pre-emptive expenses to mitigate the risks of failures. A compromise of the Company’s information technology or confidential information, or that of the Company’s patients and third parties with whom the Company interacts, may result in negative consequences, including the inability to process patient transactions, reputational harm affecting patient and/or investor confidence, potential liability under privacy, security, consumer protection or other applicable laws, regulatory penalties and additional regulatory scrutiny, any of which could have a material adverse effect on the Company’s business, financial position, results of operations or cash flows. As the Company has access to sensitive and confidential information, including personal information and personal health information, and since the Company may be vulnerable to material security breaches, theft, misplaced, lost or corrupted data, programming errors, employee errors and/or malfeasance (including misappropriation by departing employees), there is a risk that sensitive and confidential information, including personal information and personal health information, may be disclosed through improper use of Company systems, software solutions or networks or that there may be unauthorized access, use, disclosure, modification or destruction of such information. The Company’s ongoing risk and exposure to these matters is partially attributable to the evolving nature of these threats. As a result, cybersecurity and the continued development and enhancement of controls, processes and practices designed to protect systems, computers, software, data and networks from attack, damage, malfunction, human error, technological error or unauthorized access is a priority. As cyber threats continue to evolve, the Company may be required to expend additional resources to continue to modify or enhance protective measures or to investigate and remediate any security vulnerabilities.
COVID-19 Pandemic
On March 11, 2020, the World Health Organization declared the outbreak of a novel strain of coronavirus ("COVID-19") a global pandemic. In response to the outbreak, governmental authorities in the United States and internationally have introduced various recommendations and measures to try to limit the pandemic, including travel restrictions, border closures, non-essential business closures, quarantines, self-isolations, shelters-in-place, and social distancing. The COVID-19 outbreak and the response of governmental authorities to try to limit it are having a significant impact on the private sector and individuals, including unprecedented business, employment, and economic disruptions.
-15-
The continued spread of COVID-19 nationally and globally could have an adverse impact on the Company’s business, operations and financial results, including through disruptions in our labour inputs, supply chains and sales channels. In response to COVID-19, the United States’ guidelines issued on March 16, 2020 specifically noted that healthcare services were a critical infrastructure industry as defined by the Department of Homeland Security and employees of companies in this industry have a social responsibility to maintain a normal work schedule to meet service demands. In response to the COVID-19 pandemic, the Company has modified its current policies and implemented the instructions provided by the Centers for Disease Control and Prevention in order to best protect its employees and patient network. In addition, the Company accelerated inventory purchases to safeguard against any potential future supply chain weaknesses and meet potential increased demand. These measures and similar measures taken by other businesses may adversely impact the Company’s labour productivity and its supply chains.
Although the Company has taken steps to mitigate the impact of COVID-19, the continued presence and spread of COVID-19 nationally and globally could have a material adverse impact on the Company’s business, operations, and financial results and position, including through employee attrition, disruptions to the Company’s supply chains and sales channels, restrictions of operations at our retail stores, changes in the number of Americans with health insurance resulting in a change in demand for the Company’s products, as well as a deterioration of general economic conditions including a possible national or global recession. Due to the speed with which the COVID-19 situation is developing and the uncertainty of its magnitude, outcome, and duration, it is not possible to estimate its impact on the Company’s business, operations, financial results and position or prospects at this time.
The Company continues to monitor the situation and work with its stakeholders (including customers, employees, and suppliers) in order to assess further possible implications to its business, supply chain, and customers, and, where practicable, mitigate adverse consequences and responsibly address this global pandemic.
Finally, the actual and threatened spread of COVID-19 globally could adversely affect global economies and financial markets, resulting in a prolonged economic downturn and a decline in the value of the Company’s share price. The extent to which COVID19 (or any other disease, epidemic, or pandemic) impacts business activity or financial results, and the duration of any such negative impact, will depend on future developments, which are highly uncertain and cannot be predicted, including new information which may emerge concerning COVID-19 and the actions required to contain or treat its impact, among others.
DIVIDENDS
As of the date of this AIF, the Company has not paid any dividends and has no current intention to declare dividends on the Common Shares in the foreseeable future. Any decision to pay dividends on the Common Shares in the future will be at the discretion of the Board and will depend on, among other things, the Company’s results of operations, contractual restrictions, capital requirements, business prospects and other factors that the Board may consider relevant.
CAPITAL STRUCTURE
The Company is authorized to issue an unlimited number of Common Shares, an unlimited number of first preferred shares (each, a "First Preferred Share") without par value, and an unlimited number of second preferred shares (each, a "Second Preferred Share") without par value.
Common Shares
As of September 30, 2020, there were 112,276,503 Common Shares issued and outstanding as fully paid and non-assessable. As of the date hereof, there are 122,492,074 Common Shares issued and outstanding as fully paid and non-assessable.
All of the Common Shares are of the same class and, once issued, rank equally as to dividends, voting powers and participation in assets and in all other respects, on liquidation, dissolution or winding up of the Company, whether voluntary or involuntary, or any other distribution of the assets of the Company among its shareholders for the purpose of winding up its affairs after the Company has paid out its liabilities. The issued Common Shares are not subject to call or assessment by the Company nor are there any pre-emptive, conversion, exchange, redemption or retraction rights attaching to the Common Shares.
-16-
All registered holders of Common Shares are entitled to receive notice of any general or special meeting to be convened by the Company. At any general or special meeting, subject to the restrictions on joint registered owners of Common Shares, each holder of Common Shares is entitled to one vote per share of which it is the registered owner and may exercise such votes either in person or by proxy. Otherwise, on a show of hands every Shareholder who is present in person and entitled to vote will have one vote, and on a poll every Shareholder has one vote for each Common Share of which it is the registered owner. The Company’s articles provide that the rights and provisions attached to any class of shares, in which shares are issued, may not be modified, amended or varied unless consented to by special resolution passed by a majority of not less than two-thirds of the votes cast in person or by proxy by holders of shares of that class.
Preferred Shares
As of September 30, 2020, and as of the date hereof, there were no First Preferred Shares or Second Preferred Shares issued and outstanding.
The First Preferred Shares of each series shall, with respect to the payment of dividends and the distribution of assets in the event of the liquidation, dissolution or winding-up of the Company or for the purpose of winding–up its affairs, rank on parity with the First Preferred Shares of every other series and be entitled to preference over the Second Preferred Shares of every other series and the Common Shares of the Company. The Second Preferred Shares of each series shall, with respect to the payment of dividends and the distribution of assets in the event of the liquidation, dissolution or winding-up of the Company or for the purpose of winding–up its affairs, rank on parity with the Second Preferred Shares of every other series and be entitled to preference over the Common Shares of the Company.
Options
The Company’s amended and restated stock option plan (the "2019 Option Plan") was approved at the annual and special meeting of the shareholders held on January 28, 2019. The purpose of the 2019 Option Plan is to provide incentive to employees, directors, officers, management companies, and consultants who provide services to the Company or any of its subsidiaries. Pursuant to the policies of the TSX-V, the Company is permitted to maintain a "fixed" stock option plan, whereby the maximum number of Company Shares to be delivered upon the exercise of all Options granted under the 2019 Option Plan, combined with any equity securities granted under all other compensation arrangements adopted by the Company, including the 2017 RSU/DSU Plan (as defined below), may not exceed 20% of the issued and outstanding share capital of the Company as of the date the 2019 Option Plan was approved, namely 16,705,940 Common Shares based on the Common Shares outstanding as of the date of such approval.
Pursuant to the 2019 Option Plan, the Board may from time to time, in its discretion and in accordance with the TSX-V requirements, grant to employees, directors, officers, management companies, and consultants who provide services to the Company or any of its subsidiaries, non-transferable Options to purchase Common Shares, exercisable for a period of up to ten years from the date of the grant, subject to the exception that expiry dates that fall within a blackout period will be extended by ten business days from the expiry of the blackout period, subject to certain conditions being met.
Subject to obtaining disinterested shareholder approval, the number of Common Shares reserved for issuance pursuant to grants of Options to any individual may not exceed 5% of the issued and outstanding Common Shares in any 12 months period (2% in the case of all Optionholders providing investor relations services to the Company and 2% in the case of all consultants of the Company in any 12-month period). The exercise price and vesting terms of any option granted pursuant to the 2019 Option Plan will be determined by the Board when granted but shall not be less than the Market Price (as such term is defined by the TSX-V). Notwithstanding the foregoing, the vesting terms for options granted to Optionholders performing investor relations activities will vest not sooner than one-quarter on every three-month interval from the date of grant. Options granted pursuant to the 2019 Option Plan will be non-transferable, except by means of a will or pursuant to the laws of descent and distribution.
As of September 30, 2020, there were 10,506,258, which Options were granted under, and are governed by, the 2019 Option Plan (or its predecessors).
-17-
The Options may be exercised no later than 30 days following the date the Optionholder ceases to be employed by or ceases to provide services to the Company or any of its subsidiaries, as applicable, subject to the Board’s discretion to extend such period up to one year following the date of termination; notwithstanding the foregoing, the Board may in its discretion determine that all of the Options held by an Optionholder on the date of termination which have not yet vested shall vest immediately on such date. However, if before the expiry of an Option, the tenure of a director or officer or the employment of an employee of the Company or any of its subsidiaries is terminated for cause or ceases as a result of resignation, no Option held by such Optionholder may be exercised following the date upon which such termination or resignation occurred, as applicable.
The summary above of the material terms of the 2019 Option Plan is qualified in its entirety by reference to the full text of the 2019 Option Plan, a copy of which is available under the Company’s profile on SEDAR at www.sedar.com.
Restricted Share Units/Deferred Share Units
A restricted share unit and deferred share unit plan of the Company (the "2017 RSU/DSU Plan") was approved at the special meeting of the shareholders and optionholders of the Company held on December 15, 2017. The 2017 RSU/DSU Plan was established as a means by which the Company may grant awards of restricted share units ("RSUs") and deferred share units ("DSUs") as an alternative to stock options to provide incentive to officers, directors and employees who provide services to the Company or any of its subsidiaries.
Pursuant to the 2017 RSU/DSU Plan, the Board may from time to time, in its discretion, grant DSUs, or if permitted by the Board eligible participants may elect to receive their compensation in the form of DSUs, which will consist of non-transferable rights to receive, on a deferred payment basis, Common Shares or a cash payment equal to the fair market value of Common Shares, or a combination thereof. The number of DSUs to be credited to a person will be determined based on the amount of compensation to be paid in DSUs divided by the fair market value of the Common Shares as determined by the Board, on a one DSU per Common Share basis. DSUs will be redeemed by the Company upon the holder ceasing to be employed by or ceasing to provide services to the Company, as applicable, and will be settled pursuant to the terms and conditions of the 2017 RSU/DSU Plan.
The Board may also from time to time grant RSUs, which will represent non-transferable rights to receive, upon vesting of the RSUs, Common Shares or cash payments equal to the vesting date value of the Common Share. Except as otherwise provided in the 2017 RSU/DSU Plan, RSUs will vest on the later of (a) the trigger date, being a date set by the Board that is no later than December 1 of the third calendar year following the grant date, and (b) the date upon which all other applicable vesting conditions determined by the Board, including any performance-based vesting conditions, have been met. Vesting may be accelerated in certain circumstances, including upon termination without cause in connection with a change of control of the Company or upon death or permanent disability of the holder. RSUs will be automatically deemed cancelled without compensation if they have not vested on or before the applicable expiry date, which will be December 31 of the third calendar year after the grant date or such earlier date as may be established by the Board. Subject to the discretion of the Board or as otherwise provided in the 2017 RSU/DSU Plan, RSUs will also be cancelled without compensation in the event that a holder eases to be engaged as a service provider of the Company.
The maximum number of Common Shares to be delivered upon the exercise of all RSUs and DSUs granted under the 2017 RSU/DSU Plan may not exceed 20% of the issued and outstanding share capital of the Company as of the effective date of the 2017 RSU/DSU Plan, namely 15,163,855 Common Shares based on the Common Shares outstanding as of the date of such approval, and, combined with any equity securities granted under all other compensation arrangements of the Company, including the 2019 Option Plan, may not exceed 16,705,940 Common Shares. In the event that any cash dividend or return of capital is declared and paid on the Common Shares, the bookkeeping accounts maintained by the Company in respect of any granted DSUs or RSUs will be credited with additional DSUs or RSUs, as applicable, in accordance with the terms and conditions of the 2017 RSU/DSU Plan.
As of the date hereof, there are no RSUs or DSUs outstanding.
The summary above of the material terms of the 2017 RSU/DSU Plan is qualified in its entirety by reference to the full text of the 2017 RSU/DSU Plan, a copy of which is available under the Company’s profile on SEDAR at www.sedar.com.
-18-
2021 Equity Incentive Plan
Subsequent to the financial year ended September 30, 2020, on March 25, 2021, the Board approved the 2021 Equity Incentive Plan of the Company (the “Omnibus Plan”) to be effective on the date (the “Effective Date”) of the annual and special meeting of shareholders of the Company on May 3, 2021, or any adjournment or postponement thereof (the “Meeting”), pursuant to which it is able to issue share-based long-term incentives. The Omnibus Plan is intended to replace the 2019 Option Plan and 2017 RSU/DSU Plan (collectively, the “Predecessor Plans”). If the shareholders approve the Omnibus Plan, it will become effective on the Effective Date and no further awards will be granted under the Predecessor Plans and the Common Shares that have not been settled or awarded under those plans on the Effective Date shall be available for awards and issuance under the Omnibus Plan. If the shareholders do not approve the Omnibus Plan at the Meeting, the Company will continue to grant awards under the Predecessor Plans.
All directors, officers, employees and consultants of the Company and/or its affiliates are eligible to receive awards under the Omnibus Plan, subject to the terms of the Omnibus Plan. Awards include Common Share purchase options, stock appreciation rights, restricted share awards, restricted share units, performance shares, performance units, cash-based awards and other share-based awards, under the Omnibus Plan.
With shareholder approval of the Omnibus Plan, the main components of the Company’s compensation program will be as follows: (i) base salary (fixed cash amount), (ii) short-term performance incentives (variable cash bonuses), and (iii) a broad range of long-term “at risk” equity-based incentives under the Omnibus Plan.
The Omnibus Plan is administered by the Board or, if applicable, a committee of the Board.
The maximum number of Common Shares available and reserved for issuance, at any time, under the Omnibus Plan, together with any other security-based compensation arrangements adopted by the Company, including the Predecessor Plans, shall not exceed twenty percent (20%) of the issued and outstanding Common Shares on the Effective Date. As of March 25, 2021, the date of the management information circular for the Meeting, such 20% amount was 24,014,953 Common Shares, and in the event all of the convertible securities of the Company are exercised/converted on or before the Effective Date, such 20% amount could be a maximum of 30,514,255 Common Shares. The maximum amount of the foregoing Common Shares that may be awarded under the Omnibus Plan as “Incentive Stock Options” (as defined in the Omnibus Plan), shall be equal to the number of Common Shares reserved for issuance under the Omnibus Plan, namely, 20% of the issued and outstanding Common Shares on the Effective Date.
A copy of the Omnibus Plan is attached as Schedule "B" to the Company's management information circular for the Meeting, a copy of which is available under the Company’s profile on SEDAR at www.sedar.com.
Debentures
As of March 31, 2021, the Company had $11,778,000 principal amount of 2019 Debentures outstanding. The 2019 Debentures were issued in connection with a private placement, the proceeds of which were used to redeem the 2014 Debentures (as defined above), for working capital and general corporate purposes. The 2019 Debentures are governed by the terms of a debenture indenture (the "Debenture Indenture") dated August 7, 2019 between the Company and Computershare Trust Company of Canada. The principal amount of the 2019 Debentures are convertible into Common Shares at the option of the holder at any time prior to March 7, 2024 at a conversion price of $1.30 per Common Share (the "Conversion Price"). At any time after the date that is three years following the closing date, the Company may force the conversion of the principal amount of the 2019 Debentures at the Conversion Price on not less than 30 days’ notice if the daily volume weighted average trading price of the Common Shares is greater than $1.62 for any 20 consecutive trading days. Interest is calculated and paid semi-annually in arrears on the last business day of June and December in each year, computed on the basis of a 365/366-day year.
On April 30, 2019, the Company redeemed its 2014 Debentures. The 2014 Debentures were redeemed at a total redemption price of $1,040.00 plus accrued and unpaid interest of $24.79166667 up to but excluding the redemption date, both per $1,000 principal amount. As at the redemption date, the aggregate principal amount of the 2014 Debentures outstanding was $8,625,000.
The summary above of the material terms of the 2019 Debentures is qualified in its entirety by reference to the full text of the Debenture Indenture, a copy of which is available under the Company’s profile on SEDAR at www.sedar.com.
-19-
MARKET FOR SECURITIES
Trading Price and Volume
Common Shares
The Common Shares are listed and posted for trading on the TSX-V under the symbol "PTQ". The following table sets out the monthly market price range and trading volume of the Common Shares on the TSX-V during the year ended September 30, 2020.
Month | High ($) | Low ($) | Total Volume | ||||||||||
September 2020 | 1.44 | 1.20 | 8,256,358 | ||||||||||
August 2020 | 1.25 | 1.09 | 6,663,249 | ||||||||||
July 2020 | 1.21 | 1.03 | 10,203,336 | ||||||||||
June 2020 | 1.28 | 1.12 | 15,697,627 | ||||||||||
May 2020 | 1.29 | 0.92 | 10,347,218 | ||||||||||
April 2020 | 0.98 | 0.58 | 6,976,080 | ||||||||||
March 2020 | 0.76 | 0.50 | 5,962,085 | ||||||||||
February 2020 | 0.94 | 0.73 | 3,894,532 | ||||||||||
January 2020 | 0.99 | 0.90 | 2,966,666 | ||||||||||
December 2019 | 1.03 | 0.92 | 2,878,179 | ||||||||||
November 2019 | 1.16 | 0.97 | 4,194,520 | ||||||||||
October 2019 | 1.04 | 0.78 | 4,152,448 |
The price of the Common Shares as quoted by the TSX-V at the close of business on September 30, 2020, being the last trading day of the year ended September 30, 2020, was $1.31, and at the close of business on the date of this AIF was $2.10.
2019 Debentures
The 2019 Debentures were listed and posted for trading on the TSX-V under the symbol "PHM.DB.A". The following table sets out the monthly market price range and trading volume of the 2019 Debentures on the TSX-V during the year ended September 30, 2020.
Month | High ($) | Low ($) | Total Volume | ||||||||||
September 2020 | 120.00 | 107.00 | 580 | ||||||||||
August 2020 | 108.01 | 104.01 | 540 | ||||||||||
July 2020 | 109.10 | 106.09 | 310 | ||||||||||
June 2020 | 110.00 | 102.50 | 2,120 | ||||||||||
May 2020 | 104.00 | 89.98 | 640 | ||||||||||
April 2020 | 90.00 | 80.17 | 9,760 | ||||||||||
March 2020 | 87.00 | 81.00 | 430 | ||||||||||
February 2020 | 100.00 | 96.19 | 1,000 | ||||||||||
January 2020 | 99.05 | 98.00 | 870 | ||||||||||
December 2019 | 102.00 | 90.00 | 2,620 | ||||||||||
November 2019 | 103.00 | 99.00 | 1,790 | ||||||||||
October 2019 | 100.00 | 93.05 | 5,500 |
-20-
Prior Sales
The following table summarizes details of the following securities that are not listed or quoted on a marketplace issued by the Company during the fiscal year ended September 30, 2020:
Date | Type of Security Issued | Issuance/Exercise Price per Security | Issued | ||||||
January 8, 2020 | Stock Options | $ | 1.10 | 100,008 | |||||
June 29, 2020 | Warrants | $ | 1.60 | 13,839,412 | |||||
June 29, 2020 | Compensation Options/Broker Warrants | $ | 1.15 | 1,471,308 | |||||
December 9, 2020 | Stock Options | $ | 1.54 | 200,000 |
ESCROWED SECURITIES AND SECURITIES SUBJECT TO CONTRACTUAL RESTRICTION ON TRANSFER
The Company does not have securities that are held in escrow or that are subject to a contractual restriction on transfer.
DIRECTORS AND OFFICERS
Name, Occupation and Security Holding (as of the date hereof)
Name, Province or State and
Country of Residence and Position(1) |
Director or Officer
Since(4) |
Principal Occupations During Past Five Years(1) |
Gregory Crawford(2)(3)
Chief Executive Officer and Director
Fort Thomas, Kentucky, USA
|
December 21, 2017
|
President, Chief Executive Officer of the Company since December 21, 2017. Chief Operating Officer of the Company from April 19, 2016 to December 21, 2017. President and Chief Executive Officer of Patient-Aids from 2004 to October 2015, when Patient-Aids was acquired by the Company. |
Mark Greenberg(3)
Director
Cincinnati, Ohio, USA
|
December 21, 2017 | Managing Partner of Silverstone Capital Advisors since March 2009. Managing Partner of Ludlow, Ward & Greenberg Capital Partners from 2005-2009. |
Eugene Ewing(3)
Director
Fort Mitchell, Kentucky, USA
|
August 1, 2018 | Managing Member, Deeper Water Consulting since May 2006. Independent Director – Various Corporations |
Dr. Kevin A. Carter
Director
Bellbrook, Ohio,
USA
|
December 7, 2020 | Partner/Physician/Director of Providence Medical Group since June 2014. Medical Director of the Kettering Health Network Sleep Disorder Centers since January 2016. Medical Director at the Englewood Sleep Center since October 2020. Veteran Affairs of Dayton physician since February 2020 |
Hardik Mehta
Chief Financial Officer
Mason, Ohio, USA
|
February 15, 2018 | Chief Financial Officer of the Company since February 2018. Prior to being appointed CFO, Mr. Mehta worked as a finance professional and an investment banker at investment banking and advisory firm, Silverstone Capital Advisors from 2009 to 2018. |
Robbie Grossman
Corporate Secretary
Toronto, Ontario, Canada |
January 30, 2012 | Corporate finance, M&A and securities lawyer at DLA Piper (Canada) LLP since March 2018, at McMillan LLP from September 2013 to March 2018. |
-21-
Notes: |
(1) | The information as to place of residence and principal occupation has been confirmed by the respective directors and officers individually. |
(2) | Mr. Crawford was appointed Chief Operating Officer of the Company on April 19, 2016 and subsequently appointed the Chief Executive Officer of the Company as of December 21, 2017. |
(3) | Member of the Audit Committee. |
(4) | Each director will hold office until his re-election or replacement at the next annual meeting of the shareholders unless he resigns his duties or his office becomes vacant following his death, dismissal or any other cause prior to such meeting. |
(5) | The term of office of the officers expires at the discretion of the Board. |
As at the date hereof, the directors and executive officers of the Company, as a group, beneficially own, or control or direct, directly or indirectly, 5,163,617 Common Shares representing approximately 4.2% of the outstanding the Common Shares before giving effect to the exercise of convertible securities held by such directors and executive officers (12,290,529 Common Shares representing approximately 9.5% of the outstanding the Common Shares, on a partially diluted basis). The statement as to the number of the Common Shares beneficially owned, or over which a director or executive officer exercises control or direction, directly or indirectly, not being within the knowledge of the Company, has been furnished by the directors and executive officers.
Biographical Information
Gregory Crawford, Chief Executive Officer and Director
Mr. Crawford has been the President and Chief Executive Officer of the Company since December 21, 2017. Mr. Crawford joined the Company through the Company's acquisition of Patient-Aids. in October of 2015. In April of 2016, Mr. Crawford became the Company’s Chief Operating Officer. Mr. Crawford began his career at Patient-Aids in 1994, becoming a partner 3-years later and Patient-Aids' sole owner by 2004. Under Crawford’s ownership, Patient-Aids grew at an annual rate of 25%, and from 2013 through 2015 more than doubled its revenue and quadrupled its earnings as it acquired and successfully integrated five home medical equipment businesses. Since 1982, Patient-Aids has been the dominant HME business in its region. Their product lines and services focus on treating patients with chronic respiratory conditions, mobility conditions, and patients requiring traditional durable medical home-based equipment.
Mark Greenberg, Director
Mr. Greenberg is Managing Partner and Founder of Silverstone Capital Advisors and brings more than 30-years of senior executive operating and transaction expertise and experience. He has been a senior executive and operating president of units in Fortune 500 companies and a CEO and Chairman of middle market and high growth, venture capital-backed companies, as well as an investment banker and restructuring and financial advisor serving middle market and financial institution clients nationwide. As a principal investor, advisor, investment banker and transaction team member Mark has participated in more than 150 M&A and capital sourcing transactions. These have included transactions involving units of Fortune 1000 companies, middle market companies and high growth venture funded businesses.
Eugene Ewing, Director
Mr. D. Eugene Ewing has over 30 years of professional experience in a wide range of executive positions and brings a wealth of corporate knowledge across a variety of industry groups. He currently serves as an independent director of Darling Ingredients Inc., a New York Stock Exchange listed company focused on creating sustainable food, feed and fuel solutions from organic by-products. He also serves as an independent director of Compass Diversified Holdings, a New York Stock Exchange listed company that owns and manages controlling interests in a diverse family of established North American middle market businesses. In addition to his public company roles, Mr. Ewing has been the managing member of Deeper Water Consulting, a private wealth and business consulting company, since March of 2004. Previously, Mr. Ewing held senior positions at the Fifth Third Bank, ranked 17th in 2018 in total assets for U.S. banks, and was a tax partner at Arthur Andersen LLP for over 15 years, in Cincinnati, Ohio. Mr. Ewing is also on the Advisory Board for the Von Allmen School of Accountancy at the University of Kentucky and is also a director of a private trust company located in Wyoming and a private consulting company located in California.
-22-
Dr. Kevin A. Carter, Director
Kevin A. Carter, DO, FAASM, is Board Certified in Sleep Medicine by the American Board of Family Medicine; he is also Board Certified in Family Medicine. Dr. Carter formerly served as Medical Director at the Martin Army Sleep Medicine Center at Fort Benning, Georgia. Prior to his appointment as director of the Company, he served as a United States Army Field Surgeon, with service including deployment in Iraq. Currently, through the Carter Sleep Center, he offers full-spectrum sleep medicine evaluations, diagnosis, and treatments. Dr. Carter holds the degree of Fellow by the American Academy of Sleep Medicine, a recognition that he has met the highest standards in the practice of sleep medicine.
Dr. Carter is a graduate of the Ohio University Heritage College of Osteopathic Medicine. He completed a Family Medicine residency at DeWitt Army Community Hospital and Sleep Medicine fellowship at Walter Reed Army Medical Center. He is also an active member of both the American Academy of Sleep Medicine and the American Academy of Family Physicians.
Hardik Mehta, Chief Financial Officer
Mr. Mehta joined the Company as Chief Financial Officer in February 2018. Prior to becoming CFO, Mr. Mehta worked as a finance professional and an investment banker at investment banking and advisory firm, Silverstone Capital Advisors for nearly ten years. Mr. Mehta has significant acquisition, transaction finance, accounting and negotiating experience. Mr. Mehta has been an advisor on more than 30 M&A and funding transactions, including buy-side transactions, in which he oversaw quality of earnings analysis, due diligence and post-transaction integration planning. Additionally, Mr. Mehta has developed a deep understanding and has mastered both financial and operational aspects of the HME/DME industry. He has also worked on multiple M&A transactions in these industries. Mr. Mehta has extensive experience in capital markets and excels in financial planning and analysis. He holds an undergraduate degree in engineering and a MBA in finance from the Lindner Graduate School of Business at the University of Cincinnati.
Robbie Grossman, Corporate Secretary
Robbie Grossman holds a LL.B. from the University of Windsor and a B.A. (Political Science) from Concordia University, and he was called to the Ontario bar in 2002. Mr. Grossman has a cross border securities, M&A and corporate finance practice underscored by deep experience in acting for emerging issuers and public companies. Robbie acts for issuers and dealers on public offerings, private placements, exchange listings, reverse takeovers, mergers and acquisitions, restructurings and continuous disclosure obligations for public companies, across a wide variety of industries and business sectors. He has been with DLA Piper (Canada) LLP since March 2018, and previously was at McMillan LLP from September 2013 to March 2018 and at Garfinkle Biderman LLP from February 2004 to September 2013. Mr. Grossman has been, and currently is, an officer and director of several publicly traded companies.
Cease Trade Orders, Bankruptcies, Penalties or Sanctions
To the best of the Company’s knowledge, no director or executive officer of the Company is, as at the date of this AIF, or was within 10 years before the date of this AIF, a director, chief executive officer or chief financial officer of any company that was: (i) subject to a cease trade order or similar order, or an order that denied the relevant company access to any exemption under securities legislation, that was in effect for a period of more than 30 consecutive days that was issued while the director or executive officer was acting in the capacity as director, chief executive officer or chief financial officer; or (ii) subject to such an order that was issued after the director or executive officer ceased to be a director, chief executive officer or chief financial officer and which resulted from an event that occurred while that person was acting in the capacity as director, chief executive officer or chief financial officer.
Except as noted below, to the best of the Company’s knowledge, no director or executive officer of the Company, or a shareholder holding a sufficient number of securities of the Company to affect materially the control of the Company: (i) is, as at the date of this AIF, or has been within the 10 years before the date of this AIF, a director or executive officer of any company that, while that person was acting in that capacity, or within a year of that person ceasing to act in that capacity, became bankrupt, made a proposal under any legislation relating to bankruptcy or insolvency or was subject to or instituted any proceedings, arrangement or compromise with creditors or had a receiver, receiver manager or trustee appointed to hold its assets; or (ii) has, within the 10 years before the date of this AIF, become bankrupt, made a proposal under any legislation relating to bankruptcy or insolvency, or become subject to or instituted any proceedings, arrangement or compromise with creditors, or had a receiver, receiver manager or trustee appointed to hold the assets of the director, executive officer or shareholder.
-23-
Robbie Grossman was the Assistant Secretary of RedWater Energy Corp. until May 2015 which was subject to (a) a cease trade order in May 2015 for failure to file annual audited financial statements, management's discussion and analysis, and certifications, for the year ended December 31, 2014, (b) a court ordered receiver in May 2015, and (c) a bankruptcy order October 28, 2015.
To the best of the Company’s knowledge, no director or executive officer of the Company, or a shareholder holding a sufficient number of securities of the Company to affect materially the control of the Company, has been subject to: (i) any penalties or sanctions imposed by a court relating to securities legislation or by a securities regulatory authority or has entered into a settlement agreement with a securities regulatory authority; or (ii) any other penalties or sanctions imposed by a court or regulatory body that would likely be considered important to a reasonable investor in making an investment decision.
Conflicts of Interest
To the best of the Company’s knowledge, and other than as disclosed herein, there are no known existing or potential conflicts of interest among the Company and any director or officer of the Company, except that certain of the directors, officers and other members of management serve as directors, officers, promoters and members of management of other public companies, and therefore it is possible that a conflict may arise between their duties to the Company and their duties as a director, officer, promoter or member of management of such other companies. Any decision made by any of such directors and officers involving the Company will be made in accordance with their duties and obligations to deal fairly and in good faith with a view to the best interests of the Company and its shareholders. In addition, each of the directors is required to declare and refrain from voting in any matter in which such directors may have a conflict of interest in accordance with the procedures set forth in the BCBCA or other applicable corporate legislation. See "Risk Factors - Conflicts of Interest".
Advance Notice Provisions
The Company’s Articles provide for advance notice of nominations of directors of the Company which require that advance notice be provided to the Company in circumstances where nominations of persons for election to the board of directors are made by shareholders of the Company other than pursuant to: (i) a requisition of a meeting of shareholders made pursuant to the provisions of the BCBCA; or (ii) a shareholder proposal made pursuant to the provisions of the BCBCA. A copy of the Articles is available under the Company’s profile on SEDAR at www.sedar.com.
LEGAL PROCEEDINGS AND REGULATORY ACTIONS
Legal Proceedings
Other than as described below, during the financial year ended September 30, 2020, the Company was not a party to any material legal proceedings and no such proceedings were known by the Company to be contemplated.
The Company has been in litigation with Lightwater Long Short Fund for the years ended September 30, 2020, 2019 and 2018. The litigation is due to Lightwater claiming damages for matters related to subscription agreements in a prior private placement. Management believes that this lawsuit is without merit and is unpredictable. It is uncertain currently to determine the outcome of this lawsuit or potential liability, if any.
The Company is in litigation with the State of New Jersey, as well as other states. The complaint alleges that the defendants reused blood testing meters, resulting in fraudulent claims to the U.S. government, and seeks damages for the unnecessary testing. The Company has denied the allegations of the complaint and is contesting the action. It is too early in the litigation process to determine the outcome of this lawsuit or potential liability, if any.
-24-
The Company was included, along with ten others, as defendants litigation in the State of California regarding a claim of a violation of the California Insurance Prevention Act. The complaint alleges that certain defendants, other than the Company, violated such Act by paying kickbacks in exchange for client referrals under the guise of so-called bed vouchers or indigent scholarship costs, and by billing for addition recovery services that did not meet the minimum requirements put forth by the insurers as a precondition for reimbursement. The Company is contesting the allegations and settled with the plaintiff for a non-material amount.
Regulatory Actions
During the financial year ended September 30, 2020, the Company was not subject to any penalties or sanctions imposed by a court or regulatory body and was not a party to any settlement agreement entered into before a court or regulatory body, relating to provincial or territorial securities legislation.
INTEREST OF MANAGEMENT AND OTHERS IN MATERIAL TRANSACTIONS
Except as otherwise disclosed herein, none of the directors or executive officers of the Company, any person who beneficially owns, directly or indirectly, shares carrying more than 10% of the voting rights attached to all the Common Shares, nor any associate or affiliate of the foregoing persons, has any material interest, direct or indirect, in any transaction of the Company or any of its subsidiaries within the three most recently completed financial years or during the current financial year which has or is reasonably expected to materially affect the Company.
The Company has six market rate leases for office, warehouse, and retail space with a rental company affiliated with Gregory Crawford, the President and Chief Executive Officer of the Company, the majority of which were entered into in 2015. The leases have a combined area of 74,520 square feet. Lease payments under these leases are approximately US$68,000 per month, plus taxes, utilities, and maintenance.
Robbie Grossman, the Corporate Secretary of the Company, is a partner at DLA Piper (Canada) LLP, which law firm provides legal services to the Company. The Company and its subsidiaries incurred fees of approximately US$220,000 during the financial year ended September 30, 2020.
TRANSFER AGENT AND REGISTRAR
The Company’s registrar and transfer agent is Computershare Investor Services Inc., located at 2nd Floor, 510 Burrard Street, Vancouver, British Columbia V6C 3A8.
MATERIAL CONTRACTS
The following are the material contracts of the Company entered into within the most recently completed financial year, or before the most recently completed financial year that are still in effect that are required to be filed by the Company:
1. | the 2019 Option Plan, as described under "Capital Structure - Options"; |
2. | the 2017 RSU/DSU Plan, as described under "Capital Structure - Restricted Share Units/Deferred Share Units"; and |
3. | the Debenture Indenture, as described under "Capital Structure - Debentures"; |
4. | a purchase agreement dated August 18, 2020 between PHM Logistics, HTR and Greg Schoonover, pursuant to which PHM Logistics acquired all of the outstanding shares of HTR in consideration for US$5.4 million, as described under "General Development of the Business - Fiscal Year Ended September 30, 2020"; |
5. | a credit agreement dated September 18, 2020 among PHM Logistics, certain other subsidiaries of PHM Services Inc., PHM Services Inc. and CIT, pursuant to which CIT agreed to advance up to US$20 million, as described under "General Development of the Business - Fiscal Year Ended September 30, 2020"; |
-25-
6. | an equity purchase agreement dated October 23, 2020 among PHM Logistics, the Company, Sleepwell, Tuscan, Inc., Roderick Davis McLeod, Benjamin Sheppard McLeod and Charles Roderick McLeod, pursuant to which PHM Logistics acquired Sleepwell, as described under "General Development of the Business - Developments Subsequent to the Fiscal Year ended September 30, 2020"; and |
7. | an equity purchase agreement dated January 31, 2021 by and among PHM Logistics and Mayhugh Drugs, Inc., dba Mayhugh’s Medical, as described under “General Development of the Business – Developments Subsequent to the Fiscal Year ended September 30, 2020”. |
INTERESTS OF EXPERTS
The Company’s auditors, MNP LLP, Chartered Accountants, are independent within the meaning of the relevant rules and related interpretations prescribed by the relevant professional bodies in Canada and any applicable legislation or regulations.
AUDIT COMMITTEE INFORMATION
Audit Committee Mandate
The full text of the Company’s audit committee charter (the "Charter") is included as Schedule "A" to this AIF.
Composition of the Audit Committee
The members of the audit committee (the "Audit Committee"), as outlined under "Directors and Officers - Name, Occupation and Security Holding", are: Eugene Ewing (Chair), Mark Greenberg, and Gregory Crawford. The members of the Audit Committee are financially literate (as such term is defined in National Instrument 52-110 – Audit Committees ("NI 52-110"). Mr. Ewing and Mark Greenberg are independent (as such term is defined in NI 52-110 and in the BCBCA). Mr. Crawford (President and Chief Executive Officer) is not independent as he is an executive officer (as such term is defined in NI 51-102.
Relevant Education and Experience
NI 52-110 provides that an individual is "financially literate" if he has the ability to read and understand a set of financial statements that present a breadth and level of complexity of accounting issues that are generally comparable to the breadth and complexity of the issues that can reasonably be expected to be raised by a company’s financial statements.
In addition to each member’s general business experience, the education and experience of each audit committee member relevant to the performance of his responsibilities as an audit committee member is as follows:
Eugene Ewing, Chair
Mr. Ewing has over 30 years of professional experience in a wide range of executive positions and brings a wealth of corporate knowledge across a variety of industry groups. He currently serves as an independent director of Darling Ingredients Inc., a New York Stock Exchange listed company, where he serves as Chairman of the Audit Committee and as a member of the Nominating and Governance Committee. He also serves as an independent director of Compass Diversified Holdings, a New York Stock Exchange listed company, where he also serves as Chairman of the Audit Committee and as a member of the Compensation and Nominating/Corporate Governance Committees. In addition to his public company roles, Mr. Ewing has been the managing member of Deeper Water Consulting, a private wealth and business consulting company, since March of 2004. Previously, Mr. Ewing held senior positions at the Fifth Third Bank, ranked 17th in 2018 in total assets for U.S. banks, and was a tax partner at Arthur Andersen LLP for over 15 years. Mr. Ewing is also on the Advisory Board for the Von Allmen School of Accountancy at the University of Kentucky and is also a director of a private trust company located in Wyoming and a private consulting company located in California. As a former partner with what was once one of the U.S.’s largest certified public accounting firms, and with more than 30 years of business planning and transaction experience in a wide variety of industries and circumstances, Mr. Ewing brings to the Company’s Audit Committee significant experience in complex accounting, reporting and taxation matters and corporate merger and acquisition transactions. Mr. Ewing’s financial certifications and education, along with his current and past experiences, makes him uniquely qualified to Chair the Audit Committee the Company.
-26-
Mark Greenberg
Mr. Greenberg is Managing Partner and Founder of Silverstone Capital Advisors and brings more than thirty years of senior executive operating and transaction expertise and experience. He has been a senior executive and operating president of units in Fortune 500 companies and a CEO and Chairman of middle market and high growth, venture capital-backed companies, as well as an investment banker and restructuring and financial advisor serving middle market and financial institution clients nationwide. As a principal investor, advisor, investment banker and transaction team member. Mr. Greenberg has participated in more than 150 M&A and capital sourcing transactions. These have included transactions involving units of Fortune 1000 companies, middle market companies and high growth venture funded businesses.
Gregory Crawford
Mr. Crawford joined the Company through the Company’s acquisition of Patient-Aids in October of 2015. Mr. Crawford began his career at Patient-Aids in 1994, becoming a partner three years later and Patient-Aids' sole owner by 2004. Under Mr. Crawford’s ownership, Patient-Aids grew at an annual rate of 25%, and from 2013 through 2015 more than doubled its revenue and quadrupled its earnings as it acquired and successfully integrated five home medical equipment businesses. Since 1982, Patient-Aids has been the dominant HME business in its region. Their product lines and services focus on treating patients with chronic respiratory conditions, mobility conditions, and patients requiring traditional durable medical home-based equipment.
External Auditor Matters
Since the commencement of the Company’s most recently completed financial year, the Company’s directors have not failed to adopt a recommendation of the Audit Committee to nominate or compensate an external auditor and the Company has not relied on the exemptions contained in sections 2.4 or 8 of NI 52-110. Section 2.4 provides an exemption from the requirement that the Audit Committee must pre-approve all non-audit services to be provided by the auditor, where the total amount of fees related to the non-audit services are not expected to exceed 5% of the total fees payable to the auditor in the financial year in which the non-audit services were provided. Part 8 permits a company to apply to a securities regulatory authority for an exemption from the requirements of NI 52-110, in whole or in part. The Audit Committee has not adopted specific policies and procedures for the engagement of non-audit services. Subject to the requirements of NI 52-110, the engagement of non-audit services is considered by the Company's directors and, where applicable, the Audit Committee, on a case-by-case basis.
The following table sets forth, by category, the fees for all services rendered by the Company’s current external auditor, MNP LLP, for the financial years ended September 30, 2020 and September 30, 2019 (including estimates expressed in Canadian dollars).
Fees | Financial Year Ending September 30, 2020 | Financial Year Ending September 30, 2019 | ||||||
Audit Fees | $ | 280,000 | $ | 265,000 | ||||
Audit Related Fees | $ | 149,000 | Nil | |||||
Tax Fees | Nil | Nil | ||||||
All Other Fees | Nil | Nil |
In the above table, "Audit fees" are fees billed by the Company’s external auditor for services provided in auditing the Company’s annual financial statements for the subject year. "Audit-related fees" are fees not included in audit fees that are billed by the auditor for assurance and related services that are reasonably related to the performance of the audit or review of the Company’s financial statements. "Tax fees" are fees billed by the auditor for professional services rendered for tax compliance, tax advice and tax planning. "All other fees" are fees billed by the auditor for products and services not included in the foregoing categories.
-27-
Exemptions
The Company is a "venture issuer" as defined in NI 52-110 and is relying on the exemption contained in Section 6.1 of NI 52-110, which exempts the Company from the requirements of Part 3 (Composition of the Audit Committee) and Part 5 (Reporting Obligations) of NI 52-110.
ADDITIONAL INFORMATION
Additional information about the Company may be found on SEDAR at www.sedar.com. Additional financial information is provided in the Company’s audited financial statements for the period ended September 30, 2020 and the accompanying MD&A. Information about remuneration and indebtedness of directors and officers of the Company, principal holders of the Common Shares and securities authorized for issuance under securitybased compensation of the Company, will be contained in the Company’s information circular for its upcoming annual meeting of security holders that will involve the election of directors.
For copies of the financial statements of the Company and accompanying MD&A and the information circular and proxy statement and additional copies of the AIF (in certain circumstances reasonable fees may apply), please contact: Chief Financial Officer, Protech Home Medical Corp.; Telephone: (859) 878-2220; Email: investorinfo@myphm.com. Additional information relating to the Company may be found on SEDAR at www.sedar.com.
-28-
Schedule "A"
Audit Committee Charter
PROTECH HOME MEDICAL
CORP.
(THE "COMPANY")
CHARTER OF THE AUDIT COMMITTEe
1. | PURPOSE AND PRIMARY RESPONSIBILITY |
1.1. | This charter sets out the Audit Committee’s purpose, composition, member qualification, member appointment and removal, responsibilities, operations, manner of reporting to the Board of Directors (the "Board") of the Company, annual evaluation and compliance with this charter. |
1.2. | The primary responsibility of the Audit Committee is that of oversight of the financial reporting process on behalf of the Board. This includes oversight responsibility for financial reporting and continuous disclosure, oversight of external audit activities, oversight of financial risk and financial management control, and oversight responsibility for compliance with tax and securities laws and regulations as well as whistle blowing procedures. The Audit Committee is also responsible for the other matters as set out in this charter and/or such other matters as may be directed by the Board from time to time. The Audit Committee should exercise continuous oversight of developments in these areas. |
2. | MEMBERSHIP |
2.1. | A majority of the members of the Audit Committee must not be executive officers, employees or control persons of the Company or of an affiliate of the Company, as defined in National Instrument 52-110 – Audit Committees ("NI 52-110"), provided that should the Company become listed on a more senior exchange, each member of the Audit Committee will also satisfy the independence requirements of such exchange and of NI 52-110. |
2.2. | The Audit Committee will consist of at least three members, all of whom must be directors of the Company. Upon graduating to a more senior stock exchange, if required under the rules or policies of such exchange, each member of the Audit Committee will also satisfy the financial literacy requirements of such exchange and of NI 52-110. |
2.3. | The members of the Audit Committee will be appointed annually (and from time to time thereafter to fill vacancies on the Audit Committee) by the Board. An Audit Committee member may be removed or replaced at any time at the discretion of the Board and will cease to be a member of the Audit Committee on ceasing to be an independent director. |
2.4. | The Chair of the Audit Committee will be appointed by the Board. |
3. | AUTHORITY |
3.1. | In addition to all authority required to carry out the duties and responsibilities included in this charter, the Audit Committee has specific authority to: |
(a) | engage, set and pay the compensation for independent counsel and other advisors as it determines necessary to carry out its duties and responsibilities, and any such consultants or professional advisors so retained by the Audit Committee will report directly to the Audit Committee; |
(b) | communicate directly with management and any internal auditor, and with the external auditor without management involvement; and |
(c) | incur ordinary administrative expenses that are necessary or appropriate in carrying out its duties, which expenses will be paid for by the Company. |
-29-
4. | DUTIES AND RESPONSIBILITIES |
4.1. | The duties and responsibilities of the Audit Committee include: |
(a) | recommending to the Board the external auditor to be nominated by the Board; |
(b) | recommending to the Board the compensation of the external auditor to be paid by the Company in connection with (i) preparing and issuing the audit report on the Company’s financial statements, and (ii) performing other audit, review or attestation services; |
(c) | reviewing the external auditor’s annual audit plan, fee schedule and any related services proposals (including meeting with the external auditor to discuss any deviations from or changes to the original audit plan, as well as to ensure that no management restrictions have been placed on the scope and extent of the audit examinations by the external auditor or the reporting of their findings to the Audit Committee); |
(d) | overseeing the work of the external auditor; |
(e) | ensuring that the external auditor is independent by receiving a report annually from the external auditors with respect to their independence, such report to include disclosure of all engagements (and fees related thereto) for non-audit services provided to Company; |
(f) | ensuring that the external auditor is in good standing with the Canadian Public Accountability Board by receiving, at least annually, a report by the external auditor on the audit firm’s internal quality control processes and procedures, such report to include any material issues raised by the most recent internal quality control review, or peer review, of the firm, or any governmental or professional authorities of the firm within the preceding five years, and any steps taken to deal with such issues; |
(g) | ensuring that the external auditor meets the rotation requirements for partners and staff assigned to the Company’s annual audit by receiving a report annually from the external auditors setting out the status of each professional with respect to the appropriate regulatory rotation requirements and plans to transition new partners and staff onto the audit engagement as various audit team members’ rotation periods expire; |
(h) | reviewing and discussing with management and the external auditor the annual audited and quarterly unaudited financial statements and related Management Discussion and Analysis ("MD&A"), including the appropriateness of the Company’s accounting policies, disclosures (including material transactions with related parties), reserves, key estimates and judgements (including changes or variations thereto) and obtaining reasonable assurance that the financial statements are presented fairly in accordance with IFRS and the MD&A is in compliance with appropriate regulatory requirements; |
(i) | reviewing and discussing with management and the external auditor major issues regarding accounting principles and financial statement presentation including any significant changes in the selection or application of accounting principles to be observed in the preparation of the financial statements of the Company and its subsidiaries; |
-30-
(j) | reviewing and discussing with management and the external auditor the external auditor’s written communications to the Audit Committee in accordance with generally accepted auditing standards and other applicable regulatory requirements arising from the annual audit and quarterly review engagements; |
(k) | reviewing and discussing with management and the external auditor all earnings press releases, as well as financial information and earnings guidance provided to analysts and rating agencies prior to such information being disclosed; |
(l) | reviewing the external auditor’s report to the shareholders on the Company’s annual financial statements; |
(m) | reporting on and recommending to the Board the approval of the annual financial statements and the external auditor’s report on those financial statements, the quarterly unaudited financial statements, and the related MD&A and press releases for such financial statements, prior to the dissemination of these documents to shareholders, regulators, analysts and the public; |
(n) | satisfying itself on a regular basis through reports from management and related reports, if any, from the external auditors, that adequate procedures are in place for the review of the Company’s disclosure of financial information extracted or derived from the Company’s financial statements that such information is fairly presented; |
(o) | overseeing the adequacy of the Company’s system of internal accounting controls and obtaining from management and the external auditor summaries and recommendations for improvement of such internal controls and processes, together with reviewing management’s remediation of identified weaknesses; |
(p) | reviewing with management and the external auditors the integrity of disclosure controls and internal controls over financial reporting; |
(q) | reviewing and monitoring the processes in place to identify and manage the principal risks that could impact the financial reporting of the Company and assessing, as part of its internal controls responsibility, the effectiveness of the over-all process for identifying principal business risks and report thereon to the Board; |
(r) | satisfying itself that management has developed and implemented a system to ensure that the Company meets its continuous disclosure obligations through the receipt of regular reports from management and the Company’s legal advisors on the functioning of the disclosure compliance system, (including any significant instances of non- compliance with such system) in order to satisfy itself that such system may be reasonably relied upon; |
(s) | resolving disputes between management and the external auditor regarding financial reporting; |
(t) | establishing procedures for: |
-31-
(u) | the receipt, retention and treatment of complaints received by the Company from employees and others regarding accounting, internal accounting controls or auditing matters and questionable practises relating thereto, and |
(v) | the confidential, anonymous submission by employees of the Company of concerns regarding questionable accounting or auditing matters; |
(w) | reviewing and approving the Company’s hiring policies with respect to partners or employees (or former partners or employees) of either a former or the present external auditor; |
(x) | pre-approving all non-audit services to be provided to the Company or any subsidiaries by the Company’s external auditor; |
(y) | overseeing compliance with regulatory authority requirements for disclosure of external auditor services and Audit Committee activities; |
(z) | establishing procedures for: |
(i) | reviewing the adequacy of the Company’s insurance coverage, including the Directors’ and Officers’ insurance coverage; |
(ii) | reviewing activities, organizational structure, and qualifications of the Chief Financial Officer ("CFO") and the staff in the financial reporting area and ensuring that matters related to succession planning within the Company are raised for consideration at the Board; |
(iii) | obtaining reasonable assurance as to the integrity of the Chief Executive Officer ("CEO") and other senior management and that the CEO and other senior management strive to create a culture of integrity throughout the Company; |
(iv) | reviewing fraud prevention policies and programs, and monitoring their implementation; |
(v) | reviewing regular reports from management and others (e.g., external auditors, legal counsel) with respect to the Company’s compliance with laws and regulations having a material impact on the financial statements including: |
A) | tax and financial reporting laws and regulations; |
B) | legal withholding requirements; |
C) | environmental protection laws and regulations; |
D) | other laws and regulations which expose directors to liability; and |
4.2. | A regular part of Audit Committee meetings involves the appropriate orientation of new members as well as the continuous education of all members. Items to be discussed include specific business issues as well as new accounting and securities legislation that may impact the organization. The Chair of the Audit Committee will regularly canvass the Audit Committee members for continuous education needs and in conjunction with the Board education program, arrange for such education to be provided to the Audit Committee on a timely basis. |
-32-
4.3. | On an annual basis the Audit Committee shall review and assess the adequacy of this charter taking into account all applicable legislative and regulatory requirements as well as any best practice guidelines recommended by regulators or stock exchanges with whom the Company has a reporting relationship and, if appropriate, recommend changes to the Audit Committee charter to the Board for its approval. |
5. | MEETINGS |
5.1. | The quorum for a meeting of the Audit Committee is a majority of the members of the Audit Committee. |
5.2. | The Chair of the Audit Committee shall be responsible for leadership of the Audit Committee, including scheduling and presiding over meetings, preparing agendas, overseeing the preparation of briefing documents to circulate during the meetings as well as pre-meeting materials, and making regular reports to the Board. The Chair of the Audit Committee will also maintain regular liaison with the CEO, CFO, and the lead external audit partner. |
5.3. | The Audit Committee will meet in camera separately with each of the CEO and the CFO of the Company at least annually to review the financial affairs of the Company. |
5.4. | The Audit Committee will meet with the external auditor of the Company in camera at least once each year, at such time(s) as it deems appropriate, to review the external auditor’s examination and report. |
5.5. | The external auditor must be given reasonable notice of, and has the right to appear before and to be heard at, each meeting of the Audit Committee. |
5.6. | Each of the Chair of the Audit Committee, members of the Audit Committee, Chair of the Board, external auditor, CEO, CFO or secretary shall be entitled to request that the Chair of the Audit Committee call a meeting which shall be held within 48 hours of receipt of such request to consider any matter that such individual believes should be brought to the attention of the Board or the shareholders. |
6. | REPORTS |
6.1. | The Audit Committee will report, at least annually, to the Board regarding the Audit Committee’s examinations and recommendations. |
6.2. | The Audit Committee will report its activities to the Board to be incorporated as a part of the minutes of the Board meeting at which those activities are reported. |
7. | MINUTES |
7.1. | The Audit Committee will maintain written minutes of its meetings, which minutes will be filed with the minutes of the meetings of the Board. |
8. | ANNUAL PERFORMANCE EVALUATION |
8.1. | The Board will conduct an annual performance evaluation of the Audit Committee, taking into account the charter, to determine the effectiveness of the Committee. |
Exhibit 99.99
PROTECH HOME MEDICAL CORP.
2021 EQUITY INCENTIVE PLAN
TABLE OF CONTENTS
Page | |||
1. | ESTABLISHMENT, PURPOSE AND TERM OF PLAN | 1 | |
1.1 | Establishment | 1 | |
1.2 | Purpose | 1 | |
1.3 | Term of Plan | 1 | |
2. | DEFINITIONS AND CONSTRUCTION | 1 | |
2.1 | Definitions | 1 | |
2.2 | Construction | 7 | |
3. | ADMINISTRATION | 7 | |
3.1 | Administration by the Committee | 7 | |
3.2 | Authority of Officers | 8 | |
3.3 | Administration with Respect to Insiders | 8 | |
3.4 | Powers of the Committee | 8 | |
3.5 | Option or SAR Repricing | 8 | |
3.6 | Indemnification | 9 | |
4. | SHARES SUBJECT TO PLAN | 9 | |
4.1 | Maximum Number of Shares Issuable | 9 | |
4.2 | Adjustment for Unissued or Forfeited Predecessor Plan Shares | 9 | |
4.3 | Share Counting | 10 | |
4.4 | Adjustments for Changes in Capital Structure | 10 | |
4.5 | Assumption or Substitution of Awards | 10 | |
5. | ELIGIBILITY, PARTICIPATION AND AWARD LIMITATIONS | 11 | |
5.1 | Persons Eligible for Awards | 11 | |
5.2 | Participation in the Plan | 11 | |
5.3 | Incentive Stock Option Limitations | 11 | |
5.4 | Nonemployee Director Award Limit | 12 | |
6. | STOCK OPTIONS | 12 | |
6.1 | Exercise Price | 12 | |
6.2 | Exercisability and Term of Options | 13 | |
6.3 | Payment of Exercise Price | 13 | |
6.4 | Effect of Termination of Service | 13 | |
6.5 | Transferability of Options | 14 | |
7. | STOCK APPRECIATION RIGHTS | 14 | |
7.1 | Types of SARs Authorized | 14 | |
7.2 | Exercise Price | 15 | |
7.3 | Exercisability and Term of SARs | 15 | |
7.4 | Exercise of SARs | 15 |
i
ii
12.2 | Authority to Vary Terms | 24 | |
13. | CHANGE IN CONTROL, DISSOLUTION OR LIQUIDATION | 24 | |
13.1 | Effect of Change in Control on Awards | 24 | |
13.2 | Effect of Change in Control on Nonemployee Director Awards | 25 | |
13.3 | Dissolution or Liquidation | 25 | |
13.4 | Federal Excise Tax Under Section 4999 of the Code | 25 | |
14. | COMPLIANCE WITH SECURITIES LAW | 26 | |
15. | COMPLIANCE WITH SECTION 409A | 26 | |
15.1 | Awards Subject to Section 409A | 26 | |
15.2 | Deferral and/or Distribution Elections | 26 | |
15.3 | Subsequent Elections | 27 | |
15.4 | Payment of Section 409A Deferred Compensation | 27 | |
16. | TAX WITHHOLDING | 29 | |
16.1 | Tax Withholding in General | 29 | |
16.2 | Withholding in or Directed Sale of Shares | 29 | |
17. | AMENDMENT, SUSPENSION OR TERMINATION OF PLAN | 29 | |
18. | MISCELLANEOUS PROVISIONS | 29 | |
18.1 | Repurchase Rights | 29 | |
18.2 | Forfeiture Events | 30 | |
18.3 | Provision of Information | 30 | |
18.4 | Rights as Employee, Consultant or Director | 30 | |
18.5 | Rights as a Shareholder | 30 | |
18.6 | Delivery of Title to Shares | 30 | |
18.7 | Fractional Shares | 31 | |
18.8 | Retirement and Welfare Plans | 31 | |
18.9 | Beneficiary Designation | 31 | |
18.10 | Severability | 31 | |
18.11 | No Constraint on Corporate Action | 31 | |
18.12 | Unfunded Obligation | 31 | |
18.13 | Choice of Law | 31 |
iii
PROTECH HOME MEDICAL CORP.
2021 EQUITY INCENTIVE PLAN
1. ESTABLISHMENT, PURPOSE AND TERM OF PLAN.
1.1 Establishment. The Protech Home Medical Corp. 2021 Equity Incentive Plan (the “Plan”) is hereby established effective as of May 3, 2021, the date of the approval of the Plan by the Company’s shareholders (the “Effective Date”).
1.2 Purpose. The purpose of the Plan is to advance the interests of the Participating Company Group and its shareholders by providing an incentive to attract, retain and reward persons performing services for the Participating Company Group and by motivating such persons to contribute to the growth and profitability of the Participating Company Group. The Plan seeks to achieve this purpose by providing for Awards in the form of Options, Stock Appreciation Rights, Restricted Share Awards, Restricted Share Units, Performance Shares, Performance Units, Cash-Based Awards and Other Share-Based Awards.
1.3 Term of Plan. The Plan shall continue in effect until its termination by the Committee; provided, however, that all Awards shall be granted, if at all, within ten (10) years from the Effective Date.
2. DEFINITIONS AND CONSTRUCTION.
2.1 Definitions. Whenever used herein, the following terms shall have their respective meanings set forth below:
(a) “Affiliate” means (i) a parent entity, other than a Parent Corporation, that directly, or indirectly through one or more intermediary entities, controls the Company or (ii) a subsidiary entity, other than a Subsidiary Corporation, that is controlled by the Company directly or indirectly through one or more intermediary entities. For this purpose, the terms “parent,” “subsidiary,” “control” and “controlled by” shall have the meanings assigned to such terms for the purposes of registration of securities on Form S-8 under the Securities Act.
(b) “Applicable Law” means the laws, rules, regulations and requirements of any country or jurisdiction where Awards are granted under the Plan and the requirements of any stock exchange or quotation system on which the Shares are listed or quoted.
(c) “Award” means any Option, Stock Appreciation Right, Restricted Share Purchase Right, Restricted Share Bonus, Restricted Share Unit, Performance Share, Performance Unit, Cash-Based Award or Other Share-Based Award granted under the Plan.
(d) “Award Agreement” means a written or electronic agreement between the Company and a Participant setting forth the terms, conditions and restrictions applicable to an Award.
(e) “Black-Out Period” means a period of time when pursuant to any policies of the Company, any securities of the Company may not be traded by certain persons designated by the Company.
(f) “Board” means the Board of Directors of the Company.
(g) “Cash-Based Award” means an Award denominated in cash and granted pursuant to Section 11.
(h) “Cashless Exercise” means a Cashless Exercise as defined in Section 6.3(b)(i).
1
(i) “Cause” means, unless such term or an equivalent term is otherwise defined by the applicable Award Agreement or other written agreement between a Participant and a Participating Company applicable to an Award, any of the following: (i) the Participant’s theft, dishonesty, willful misconduct, breach of fiduciary duty for personal profit, or falsification of any Participating Company documents or records; (ii) the Participant’s material failure to abide by a Participating Company’s code of conduct or other policies (including, without limitation, policies relating to confidentiality and reasonable workplace conduct); (iii) the Participant’s unauthorized use, misappropriation, destruction or diversion of any tangible or intangible asset or corporate opportunity of a Participating Company (including, without limitation, the Participant’s improper use or disclosure of a Participating Company’s confidential or proprietary information); (iv) any intentional act by the Participant which has a material detrimental effect on a Participating Company’s reputation or business; (v) the Participant’s repeated failure to perform any reasonable assigned duties after written notice from a Participating Company of, and a reasonable opportunity to cure, such failure; (vi) any material breach by the Participant of any employment, service, non-disclosure, non-competition, non-solicitation or other similar agreement between the Participant and a Participating Company, which breach is not cured pursuant to the terms of such agreement; or (vii) the Participant’s conviction (including any plea of guilty or nolo contendere) of any criminal act involving fraud, dishonesty, misappropriation or moral turpitude, or which impairs the Participant’s ability to perform his or her duties with a Participating Company.
(j) “Change in Control” means, unless such term or an equivalent term is otherwise defined by the applicable Award Agreement or other written agreement between the Participant and a Participating Company applicable to an Award, the occurrence of any one or a combination of the following:
(i) any “person” (as such term is used in Sections 13(d) and 14(d) of the Exchange Act) becomes the “beneficial owner” (as such term is defined in Rule 13d-3 under the Exchange Act), directly or indirectly, of securities of the Company representing more than fifty percent (50%) of the total Fair Market Value or total combined voting power of the Company’s then-outstanding securities entitled to vote generally in the election of Directors; provided, however, that a Change in Control shall not be deemed to have occurred if such degree of beneficial ownership results from any of the following: (A) an acquisition by any person who on the Effective Date is the beneficial owner of more than fifty percent (50%) of such voting power, (B) any acquisition directly from the Company, including, without limitation, pursuant to or in connection with a public offering of securities, (C) any acquisition by the Company, (D) any acquisition by a trustee or other fiduciary under an employee benefit plan of a Participating Company or (E) any acquisition by an entity owned directly or indirectly by the shareholders of the Company in substantially the same proportions as their ownership of the voting securities of the Company; or
(ii) an Ownership Change Event or series of related Ownership Change Events (collectively, a “Transaction”) in which the shareholders of the Company immediately before the Transaction do not retain immediately after the Transaction direct or indirect beneficial ownership of more than fifty percent (50%) of the total combined voting power of the outstanding securities entitled to vote generally in the election of Directors or, in the case of an Ownership Change Event described in Section 2.1(ff)(iii), the entity to which the assets of the Company were transferred (the “Transferee”), as the case may be;
(iii) any “person” acquires, directly or indirectly, securities of the Company to which is attached the right to elect the majority of the directors of the Company; or
(iv) the Company undergoes a liquidation or dissolution;
provided, however, that a Change in Control shall be deemed not to include a transaction described in subsections (i) or (ii) of this Section 2.1(i) in which a majority of the members of the board of directors of the continuing, surviving or successor entity, or parent thereof, immediately after such transaction is comprised of Incumbent Directors.
For purposes of the preceding sentence, indirect beneficial ownership shall include, without limitation, an interest resulting from ownership of the voting securities of one or more corporations or other business entities which own the Company or the Transferee, as the case may be, either directly or through one or more subsidiary corporations or other business entities. The Committee shall determine whether multiple events described in subsections (i), (ii) and (iii) of this Section 2.1(i) are related and to be treated in the aggregate as a single Change in Control, and its determination shall be final, binding and conclusive.
2
(k) “Code” means the United States Internal Revenue Code of 1986, as amended, and any applicable regulations and administrative guidelines promulgated thereunder.
(l) “Committee” means such committee or subcommittee of the Board, if any, duly appointed to administer the Plan and having such powers in each instance as shall be specified by the Board. If, at any time, there is no committee of the Board then authorized or properly constituted to administer the Plan, the Board shall exercise all of the powers of the Committee granted herein, and, in any event, the Board may in its discretion exercise any or all of such powers.
(m) “Common Shares” means the common shares of the Company, as adjusted from time to time in accordance with Section 4.4.
(n) “Company” means Protech Home Medical Corp., a corporation duly amalgamated under the laws of the Province of British Columbia, and its Affiliates, if any, and includes any successor or assignee entity or entities into which the Company may be merged, changed, or consolidated; any entity for whose securities the securities of the Company shall be exchanged; and any assignee of or successor to substantially all of the assets of the Company.
(o) “Consultant” means a person engaged to provide consulting or advisory services (other than as an Employee or a Director) to a Participating Company, provided that the identity of such person, the nature of such services or the entity to which such services are provided would not preclude the Company from offering or selling securities to such person pursuant to the Plan in reliance on registration on Form S-8 under the Securities Act and is consistent with the requirements of TSXV Policy 4.4, if applicable.
(p) “Director” means a member of the Board.
(q) “Disability” means, unless such term or an equivalent term is otherwise defined by the applicable Award Agreement or other written agreement between the Participant and a Participating Company applicable to an Award, the permanent and total disability of the Participant, within the meaning of Section 22(e)(3) of the Code.
(r) “Dividend Equivalent Right” means the right of a Participant, granted at the discretion of the Committee or as otherwise provided by the Plan, to receive a credit for the account of such Participant in an amount equal to the cash dividends paid on one Common Share for each Common Share represented by an Award held by such Participant and is consistent with the requirements of TSXV Policy 4.4, if applicable.
(s) “Employee” means any person treated as an employee (including an Officer or a Director who is also treated as an employee) in the records of a Participating Company and, with respect to any Incentive Stock Option granted to such person, who is an employee for purposes of Section 422 of the Code; provided, however, that neither service as a Director nor payment of a Director’s fee shall be sufficient to constitute employment for purposes of the Plan. The Company shall determine in good faith and in the exercise of its discretion whether an individual has become or has ceased to be an Employee and the effective date of such individual’s employment or termination of employment, as the case may be. For purposes of an individual’s rights, if any, under the terms of the Plan as of the time of the Company’s determination of whether or not the individual is an Employee, all such determinations by the Company shall be final, binding and conclusive as to such rights, if any, notwithstanding that the Company or any court of law or governmental agency subsequently makes a contrary determination as to such individual’s status as an Employee.
(t) “Exchange Act” means the United States Securities Exchange Act of 1934, as amended.
3
(u) “Fair Market Value” means, as of any date, the value of a Common Share or other property as determined by the Committee, in its discretion, or by the Company, in its discretion, if such determination is expressly allocated to the Company herein, subject to the following:
(i) Except as otherwise determined by the Committee, if, on such date, the Common Shares are listed or quoted on a national or regional securities exchange or quotation system, the Fair Market Value of a Common Share shall be the closing price of a Common Share as quoted on the national or regional securities exchange or quotation system constituting the primary market for the Common Shares, as reported in such source as the Company deems reliable. If the relevant date does not fall on a day on which the Common Shares have traded on such securities exchange or quotation system, the date on which the Fair Market Value shall be established shall be the last day on which the Common Shares were so traded or quoted prior to the relevant date, or such other appropriate day as shall be determined by the Committee, in its discretion.
(ii) Notwithstanding the foregoing, the Committee may, in its discretion, determine the Fair Market Value of a Common Share on the basis of the opening, closing, or average of the high and low sale prices of a Common Share on such date or the preceding trading day, the actual sale price of a Common Share received by a Participant, any other reasonable basis using actual transactions in the Common Shares as reported on a national or regional securities exchange or quotation system, or on any other basis consistent with the requirements of Section 409A. The Committee may also determine the Fair Market Value upon the average selling price of the Common Shares (or the average of such selling prices over the specified period weighted based on the volume of trading of the Common Shares on each trading day during such specified period) during a specified period that is within thirty (30) days before or thirty (30) days after such date, provided that, with respect to the grant of an Option or SAR, the commitment to grant such Award based on such valuation method must be irrevocable before the beginning of the specified period. The Committee may vary its method of determination of the Fair Market Value as provided in this Section for different purposes under the Plan to the extent consistent with the requirements of Section 409A.
(iii) If, on such date, the Common Shares are not listed or quoted on a national or regional securities exchange or quotation system, the Fair Market Value of a Common Share shall be as determined by the Committee in good faith without regard to any restriction other than a restriction which, by its terms, will never lapse, and in a manner consistent with the requirements of Section 409A.
(v) “Full Value Award” means any Award settled in Common Shares, other than (i) an Option, (ii) a Stock Appreciation Right, or (iii) a Restricted Share Purchase Right or an Other Share-Based Award under which the Company will receive monetary consideration equal to the Fair Market Value (determined on the effective date of grant) of the shares subject to such Award.
(w) “Incentive Stock Option” means an Option intended to be (as set forth in the Award Agreement) and which qualifies as an incentive stock option within the meaning of Section 422(b) of the Code.
(x) “Incumbent Director” means a director who either (i) is a member of the Board as of the Effective Date or (ii) is elected, or nominated for election, to the Board with the affirmative votes of at least a majority of the Incumbent Directors at the time of such election or nomination (but excluding a director who was elected or nominated in connection with an actual or threatened proxy contest relating to the election of directors of the Company).
(y) “Insider” means an Officer, a Director or other person whose transactions in Common Shares are subject to Section 16 of the Exchange Act, or, if applicable, is otherwise an “insider” as such term is defined by the applicable securities laws of Canada or TSXV Policy 1.1.
(z) “Investor Relations Activities” has the meaning set out in TSXV Policy 1.1.
4
(aa) “Net Exercise” means a Net Exercise as defined in Section 6.3(b)(ii).
(bb) “Nonemployee Director” means a Director who is not an Employee.
(cc) “Nonemployee Director Award” means any Award granted to a Nonemployee Director.
(dd) “Nonstatutory Stock Option” means an Option not intended to be (as set forth in the Award Agreement) or which does not qualify as an incentive stock option within the meaning of Section 422(b) of the Code.
(ee) “Officer” means any person designated by the Board as an officer of the Company and is consistent with the requirements of TSXV Policy 4.4, if applicable.
(ff) “Option” means an Incentive Stock Option or a Nonstatutory Stock Option granted pursuant to the Plan.
(gg) “Other Share-Based Award” means an Award denominated in Common Shares and granted pursuant to Section 11.
(hh) “Ownership Change Event” means the occurrence of any of the following with respect to the Company: (i) the direct or indirect sale or exchange in a single or series of related transactions by the shareholders of the Company of securities of the Company representing more than fifty percent (50%) of the total combined voting power of the Company’s then outstanding securities entitled to vote generally in the election of Directors; (ii) a merger, consolidation or other business combination transaction in which the Company is a party; or (iii) the sale, exchange, or transfer of all or substantially all of the assets of the Company (other than a sale, exchange or transfer to one or more subsidiaries of the Company).
(ii) “Parent Corporation” means any present or future “parent corporation” of the Company, as defined in Section 424(e) of the Code.
(jj) “Participant” means any eligible person, being a bona fide Employee, a Consultant, a Director or an Officer, who has been granted one or more Awards, or a person retained to provide Investor Relations Activities who has been granted one or more Options, as the case may be.
(kk) “Participating Company” means the Company or any Parent Corporation, Subsidiary Corporation or Affiliate.
(ll) “Participating Company Group” means, at any point in time, the Company and all other entities collectively which are then Participating Companies.
(mm) “Performance Award” means an Award of Performance Shares or Performance Units.
(nn) “Performance Award Formula” means, for any Performance Award, a formula or table established by the Committee pursuant to Section 10.3 which provides the basis for computing the value of a Performance Award at one or more levels of attainment of the applicable Performance Goal(s) measured as of the end of the applicable Performance Period.
(oo) “Performance Goal” means a performance goal established by the Committee pursuant to Section 10.3.
(pp) “Performance Period” means a period established by the Committee pursuant to Section 10.3 at the end of which one or more Performance Goals are to be measured.
(qq) “Performance Share” means a right granted to a Participant pursuant to Section 10 to receive a payment equal to the value of a Performance Share, as determined by the Committee, based upon attainment of applicable Performance Goal(s).
5
(rr) “Performance Unit” means a right granted to a Participant pursuant to Section 10 to receive a payment equal to the value of a Performance Unit, as determined by the Committee, based upon attainment of applicable Performance Goal(s).
(ss) “Predecessor Plans” mean the Company’s Stock Option Plan, adopted December 15, 2017, as amended, and the Company’s Restricted Share Unit and Deferred Share Unit Plan, adopted December 15, 2017.
(tt) “Restricted Share Award” means an Award of a Restricted Share Bonus or a Restricted Share Purchase Right.
(uu) “Restricted Share Bonus” means Common Shares granted to a Participant pursuant to Section 8.
(vv) “Restricted Share Purchase Right” means a right to purchase Common Shares granted to a Participant pursuant to Section 8.
(ww) “Restricted Share Unit” means a right granted to a Participant pursuant to Section 9 to receive on a future date or occurrence of a future event a Common Share or cash in lieu thereof, as determined by the Committee.
(xx) “Rule 16b-3” means Rule 16b-3 under the Exchange Act, as amended from time to time, or any successor rule or regulation.
(yy) “SAR” or “Stock Appreciation Right” means a right granted to a Participant pursuant to Section 7 to receive payment, for each Common Share subject to such Award, of an amount equal to the excess, if any, of the Fair Market Value of a Common Share on the date of exercise of the Award over the exercise price thereof.
(zz) “Section 409A” means Section 409A of the Code.
(aaa) “Section 409A Deferred Compensation” means compensation provided pursuant to an Award that constitutes nonqualified deferred compensation within the meaning of Section 409A.
(bbb) “Securities Act” means the United States Securities Act of 1933, as amended.
(ccc) “Service” means a Participant’s employment or service with the Participating Company Group, whether as an Employee, a Director or a Consultant. Unless otherwise provided by the Committee, a Participant’s Service shall not be deemed to have terminated merely because of a change in the capacity in which the Participant renders Service or a change in the Participating Company for which the Participant renders Service, provided that there is no interruption or termination of the Participant’s Service. Furthermore, a Participant’s Service shall not be deemed to have been interrupted or terminated if the Participant takes any military leave, sick leave, or other bona fide leave of absence approved by the Company. However, unless otherwise provided by the Committee, if any such leave taken by a Participant exceeds three (3) months, then on the first (1st) day following the end of such three-month period the Participant’s Service shall be deemed to have terminated, unless the Participant’s right to return to Service is guaranteed by statute or contract. Notwithstanding the foregoing, unless otherwise designated by the Company or required by law, an unpaid leave of absence shall not be treated as Service for purposes of determining vesting under the Participant’s Award Agreement. A Participant’s Service shall be deemed to have terminated either upon an actual termination of Service or upon the business entity for which the Participant performs Service ceasing to be a Participating Company. Subject to the foregoing, the Company, in its discretion, shall determine whether the Participant’s Service has terminated and the effective date of and reason for such termination.
6
(ddd) “Share Based Compensation Arrangement” for the purposes of the Plan means any option, share option plan, share incentive plan, employee share purchase plan where the Company provides any financial assistance or matching mechanism, stock appreciation right or any other compensation or incentive mechanism involving the issuance or potential issuance of securities from the Company’s treasury, including a share purchase from treasury which is financially assisted by the Company by way of a loan guarantee or otherwise, but for greater certainty does not involve compensation arrangements which do not involve the issuance or potential issuance of securities from the Company’s treasury;
(eee) “Subsidiary Corporation” means any present or future “subsidiary corporation” of the Company, as defined in Section 424(f) of the Code or pursuant to the applicable securities laws of Canada.
(fff) “Ten Percent Owner” means a Participant who, at the time an Option is granted to the Participant, owns shares possessing more than ten percent (10%) of the total combined voting power of all classes of shares of a Participating Company (other than an Affiliate) within the meaning of Section 422(b)(6) of the Code.
(ggg) “Trading Compliance Policy” means the written policy of the Company pertaining to the purchase, sale, transfer or other disposition of the Company’s equity securities by Directors, Officers, Employees or other service providers who may possess material, nonpublic information regarding the Company or its securities.
(hhh) “TSXV” means the TSX Venture Exchange.
(iii) “TSXV Policy 1.1” means Policy 1.1 of the TSXV Company Finance Manual, as may be amended from time to time.
(jjj) “TSXV Policy 4.4” means Policy 4.4 of the TSXV Company Finance Manual, as may be amended from time to time.
(kkk) “Vesting Conditions” mean those conditions established in accordance with the Plan or Award Agreement prior to the satisfaction of which an Award or shares subject to an Award remain subject to forfeiture or a repurchase option in favor of the Company exercisable for the Participant’s monetary purchase price, if any, for such shares upon the Participant’s termination of Service or failure of a performance condition to be satisfied.
(lll) “VWAP” means the volume weighted average trading price of the Common Shares on the TSXV calculated by dividing the total value by the total volume of such securities traded for the five trading days immediately preceding the applicable Option exercise date.
2.2 Construction. Captions and titles contained herein are for convenience only and shall not affect the meaning or interpretation of any provision of the Plan. Except when otherwise indicated by the context, the singular shall include the plural and the plural shall include the singular. Use of the term “or” is not intended to be exclusive, unless the context clearly requires otherwise.
7
3. ADMINISTRATION.
3.1 Administration by the Committee. The Plan shall be administered by the Committee. All questions of interpretation of the Plan, of any Award Agreement or of any other form of agreement or other document employed by the Company in the administration of the Plan or of any Award shall be determined by the Committee, and such determinations shall be final, binding and conclusive upon all persons having an interest in the Plan or such Award, unless fraudulent or made in bad faith. Any and all actions, decisions and determinations taken or made by the Committee in the exercise of its discretion pursuant to the Plan or Award Agreement or other agreement thereunder (other than determining questions of interpretation pursuant to the preceding sentence) shall be final, binding and conclusive upon all persons having an interest therein. All expenses incurred in connection with the administration of the Plan shall be paid by the Company.
3.2 Authority of Officers. Any Officer shall have the authority to act on behalf of the Company with respect to any matter, right, obligation, determination or election that is the responsibility of or that is allocated to the Company herein, provided that the Officer has apparent authority with respect to such matter, right, obligation, determination or election.
3.3 Administration with Respect to Insiders. With respect to participation by Insiders in the Plan, at any time that any class of equity security of the Company is registered pursuant to Section 12 of the Exchange Act, the Plan shall be administered in compliance with the requirements, if any, of Rule 16b-3.
3.4 Powers of the Committee. In addition to any other powers set forth in the Plan and subject to the provisions of the Plan and TSXV Policy 4.4, the Committee shall have the full and final power and authority, in its discretion:
(a) to determine the persons to whom, and the time or times at which, Awards shall be granted and the number of Common Shares, units or monetary value to be subject to each Award;
(b) to determine the type of Award granted;
(c) to determine the Fair Market Value of the Common Shares or other property;
(d) to determine the terms, conditions and restrictions applicable to each Award (which need not be identical) and any shares acquired pursuant thereto, including, without limitation, (i) the exercise or purchase price of shares pursuant to any Award, (ii) the method of payment for shares purchased pursuant to any Award, (iii) the method for satisfaction of any tax withholding obligation arising in connection with any Award, including by the withholding or delivery of Common Shares, (iv) the timing, terms and conditions of the exercisability or vesting of any Award or any shares acquired pursuant thereto, (v) the Performance Measures, Performance Period, Performance Award Formula and Performance Goals applicable to any Award and the extent to which such Performance Goals have been attained, (vi) the time of expiration of any Award, (vii) the effect of any Participant’s termination of Service on any of the foregoing, and (viii) all other terms, conditions and restrictions applicable to any Award or shares acquired pursuant thereto not inconsistent with the terms of the Plan;
(e) to determine whether an Award will be settled in Common Shares or, if and to the extent permitted by Applicable Law, cash, other property or in any combination thereof, as applicable;
(f) to approve one or more forms of Award Agreement;
(g) to amend, modify, extend, cancel or renew any Award or to waive any restrictions or conditions applicable to any Award or any shares acquired pursuant thereto, subject in all cases to the limitations set out in TSXV Policy 4.4;
(h) to accelerate, continue, extend or defer the exercisability or vesting of any Award or any shares acquired pursuant thereto, including with respect to the period following a Participant’s termination of Service;
(i) to prescribe, amend or rescind rules, guidelines and policies relating to the Plan, or to adopt sub-plans or supplements to, or alternative versions of, the Plan, including, without limitation, as the Committee deems necessary or desirable to comply with the laws of, or to accommodate the tax policy, accounting principles or custom of, foreign jurisdictions whose residents may be granted Awards, or to comply with the policies of the TSXV; and
(j) to correct any defect, supply any omission or reconcile any inconsistency in the Plan or any Award Agreement and to make all other determinations and take such other actions with respect to the Plan or any Award as the Committee may deem advisable to the extent not inconsistent with the provisions of the Plan or Applicable Law.
8
3.5 Option or SAR Repricing. Without the affirmative vote of disinterested holders of a majority of the Common Shares cast in person or by proxy at a meeting of the shareholders of the Company at which a quorum representing a majority of all outstanding Common Shares are present or represented by proxy, the Committee shall not approve a program providing for either (a) the cancellation of outstanding Options or SARs having exercise prices per share greater than the then Fair Market Value of a Common Share (“Underwater Awards”) and the grant in substitution therefor of new Options or SARs having a lower exercise price, Full Value Awards or payments in cash, or (b) the amendment of outstanding Underwater Awards to reduce the exercise price thereof. This Section shall not be construed to apply to (i) “issuing or assuming a stock option in a transaction to which Section 424(a) applies,” within the meaning of Section 424 of the Code, (ii) adjustments pursuant to the assumption of or substitution for an Option or SAR in a manner that would comply with Section 409A, or (iii) an adjustment pursuant to Section 4.4.
3.6 Indemnification. In addition to such other rights of indemnification as they may have as members of the Board or the Committee or as officers or employees of the Participating Company Group, to the extent permitted by Applicable Law, members of the Board or the Committee and any officers or employees of the Participating Company Group to whom authority to act for the Board, the Committee or the Company is delegated shall be indemnified by the Company against all reasonable expenses, including attorneys’ fees, actually and necessarily incurred in connection with the defense of any action, suit or proceeding, or in connection with any appeal therein, to which they or any of them may be a party by reason of any action taken or failure to act under or in connection with the Plan, or any right granted hereunder, and against all amounts paid by them in settlement thereof (provided such settlement is approved by independent legal counsel selected by the Company) or paid by them in satisfaction of a judgment in any such action, suit or proceeding, except in relation to matters as to which it shall be adjudged in such action, suit or proceeding that such person is liable for gross negligence, bad faith or intentional misconduct in duties; provided, however, that within sixty (60) days after the institution of such action, suit or proceeding, such person shall offer to the Company, in writing, the opportunity at its own expense to handle and defend the same.
4. SHARES SUBJECT TO PLAN.
4.1 Maximum Number of Shares Issuable. Subject to adjustment as provided in Sections 4.2, 4.3 and 4.4, the maximum aggregate number of Common Shares that may be available and reserved for issuance, at any time, under this Plan shall be equal to 24,506,794 shares, inclusive of Common Shares that may become available for issuance under the Plan pursuant to Section 4.2. For greater certainty and notwithstanding anything else contained herein, the maximum number of Common Shares available and reserved for issuance, at any time, under this Plan, including, without limitation, Common Shares that may be issued under the Plan pursuant to the exercise of Incentive Stock Options as set out in Section 5.4(a) hereof, together with any other Security Based Compensation Arrangement adopted by the Company, including the Predecessor Plans, shall not exceed twenty percent (20%) of the issued and outstanding Common Shares on the date hereof.
4.2 Adjustment for Unissued or Forfeited Predecessor Plan Shares. The maximum aggregate number of Common Shares that may be issued under the Plan as set forth in Section 4.1 shall include from time to time:
(a) the aggregate number of Common Shares that remain available for the future grant of awards under the Predecessor Plans immediately prior to their termination as of the Effective Date;
(b) the number of Common Shares subject to that portion of any option or other award outstanding pursuant to a Predecessor Plan as of the Effective Date which, on or after the Effective Date, expires or is terminated or canceled for any reason without having been exercised or settled in full; and
(c) the number of Common Shares acquired pursuant to the Predecessor Plans subject to forfeiture or repurchase by the Company for an amount not greater than the Participant’s purchase price which, on or after the Effective Date, are so forfeited or repurchased.
9
4.3 Share Counting. If an outstanding Award for any reason expires or is terminated or canceled without having been exercised or settled in full, or if Common Shares acquired pursuant to an Award subject to forfeiture or repurchase are forfeited or repurchased by the Company for an amount not greater than the Participant’s purchase price, the Common Shares allocable to the terminated portion of such Award or such forfeited or repurchased Common Shares shall again be available for issuance under the Plan. Common Shares shall not be deemed to have been issued pursuant to the Plan with respect to any portion of an Award that is settled in cash. Upon payment in Common Shares pursuant to the exercise of an SAR, the number of shares available for issuance under the Plan shall be reduced by the gross number of shares for which the SAR is exercised. If the exercise price of an Option is paid by tender to the Company, or attestation to the ownership, of Common Shares owned by the Participant, or by means of a Cashless Exercise, the number of shares available for issuance under the Plan shall be reduced by the gross number of shares for which the Option is exercised. Shares purchased in the open market with proceeds from the exercise of Options shall not be added to the limit set forth in Section 4.1. Shares withheld or reacquired by the Company in satisfaction of tax withholding obligations pursuant to the exercise or settlement of Options or SARs pursuant to Section 16.2 shall not again be available for issuance under the Plan. Shares withheld or reacquired by the Company in satisfaction of tax withholding obligations pursuant to the vesting or settlement of Full Value Awards pursuant to Section 16.2 shall again become available for issuance under the Plan. Notwithstanding anything herein to the contrary, any Common Shares forfeited, cancelled or otherwise not issued for any reason under the awards of any Predecessor Plan shall be available for grants under this Plan.
4.4 Adjustments for Changes in Capital Structure. Subject to any required action by the shareholders of the Company and the requirements of Applicable Law, including Sections 409A and 424 of the Code to the extent applicable, in the event of any change in the Common Shares effected without receipt of consideration by the Company, whether through merger, consolidation, reorganization, reincorporation, recapitalization, reclassification, stock dividend, stock split, reverse stock split, split-up, split-off, spin-off, combination of shares, exchange of shares, or similar change in the capital structure of the Company, or in the event of payment of a dividend or distribution to the shareholders of the Company in a form other than Common Shares (excepting regular, periodic cash dividends) that has a material effect on the Fair Market Value of Common Shares, appropriate and proportionate adjustments shall be made in the number and kind of shares subject to the Plan and to any outstanding Awards, the Award limits set forth in Section 5.3 and Section 5.4, and in the exercise or purchase price per share under any outstanding Award in order to prevent dilution or enlargement of Participants’ rights under the Plan. For purposes of the foregoing, conversion of any convertible securities of the Company shall not be treated as “effected without receipt of consideration by the Company.” If a majority of the shares which are of the same class as the shares that are subject to outstanding Awards are exchanged for, converted into, or otherwise become (whether or not pursuant to an Ownership Change Event) shares of another corporation (the “New Shares”), the Committee may unilaterally amend the outstanding Awards to provide that such Awards are for New Shares. In the event of any such amendment, the number of shares subject to, and the exercise or purchase price per share of, the outstanding Awards shall be adjusted in a fair and equitable manner as determined by the Committee, in its discretion. Any fractional share resulting from an adjustment pursuant to this Section shall be rounded down to the nearest whole number and the exercise or purchase price per share shall be rounded up to the nearest whole cent. In no event may the exercise or purchase price, if any, under any Award be decreased to an amount less than the par value, if any, of the shares subject to such Award. The Committee in its discretion, may also make such adjustments in the terms of any Award to reflect, or related to, such changes in the capital structure of the Company or distributions as it deems appropriate, including modification of Performance Goals, Performance Award Formulas and Performance Periods. The adjustments determined by the Committee pursuant to this Section shall be final, binding and conclusive.
4.5 Assumption or Substitution of Awards. The Committee may, without affecting the number of Common Shares reserved or available hereunder, authorize the issuance or assumption of benefits under this Plan in connection with any merger, consolidation, acquisition of property or shares, or reorganization upon such terms and conditions as it may deem appropriate, subject to compliance with Applicable Law, including Section 409A and any other applicable provisions of the Code. In addition, subject to compliance with Applicable Law, and listing requirements, shares available for grant under a shareholder approved plan of an acquired company (as appropriately adjusted to reflect the transaction) may be used for awards under the Plan to individuals who were not Employees or Directors of the Participating Company Group prior to the transaction and shall not reduce the number of shares otherwise available for issuance under the Plan.
10
5. ELIGIBILITY, PARTICIPATION AND AWARD LIMITATIONS.
5.1 Persons Eligible for Awards. Awards may be granted only to Employees, Consultants, Directors and Officers; provided, however, that no Consultant engaged in Investor Relations Activities on behalf of the Company which constitute services in connection with the offer or sale of securities in a capital-raising transaction or who directly or indirectly promotes or maintains a market for the Company’s securities shall be eligible to participate in the Plan to the extent that either (a) such Consultant is a resident of the United States at a time when the Company is relying on an exemption from Securities Act registration pursuant to Rule 701 thereunder with respect to securities issued to such Consultant pursuant to the Plan or (b) the Company’s Common Shares are listed for trading on the NASDAQ Stock Market and the securities issued to such Consultant (regardless of residence) pursuant to the Plan are registered on Form S-8 under the Securities Act.
5.2 Participation in the Plan. Awards are granted solely at the discretion of the Committee. Eligible persons may be granted more than one Award. However, eligibility in accordance with this Section shall not entitle any person to be granted an Award, or, having been granted an Award, to be granted an additional Award.
5.3 Voluntary Participation. Participation in the Plan shall be entirely voluntary and any decision not to participate shall not affect a Participant’s relationship or employment with the Company. Notwithstanding any express or implied term of this Plan to the contrary, the granting of an Award pursuant to the Plan shall in no way be construed as a guarantee of employment by the Company to the Participant.
5.4 Incentive Stock Option Limitations.
(a) Maximum Number of Shares Issuable Pursuant to Incentive Stock Options. Subject to adjustment as provided in Section 4.4, the maximum aggregate number of Common Shares that may be issued under the Plan pursuant to the exercise of Incentive Stock Options shall not exceed 24,506,794 shares. The maximum aggregate number of Common Shares that may be issued under the Plan pursuant to all Awards other than Incentive Stock Options shall be the number of shares determined in accordance with Section 4.1, subject to adjustment as provided in Sections 4.2, 4.3 and 4.4.
(b) Persons Eligible. An Incentive Stock Option may be granted only to a person who, on the effective date of grant, is an Employee of the Company, a Parent Corporation or a Subsidiary Corporation (each being an “ISO-Qualifying Corporation”). Any person who is not an Employee of an ISO-Qualifying Corporation on the effective date of the grant of an Option to such person may be granted only a Nonstatutory Stock Option.
(c) Fair Market Value Limitation. To the extent that options designated as Incentive Stock Options (granted under all share plans of the Participating Company Group, including the Plan) become exercisable by a Participant for the first time during any calendar year for shares having a Fair Market Value greater than One Hundred Thousand Dollars ($100,000), the portion of such options which exceeds such amount shall be treated as Nonstatutory Stock Options. For purposes of this Section, options designated as Incentive Stock Options shall be taken into account in the order in which they were granted, and the Fair Market Value of the shares shall be determined as of the time the option with respect to such shares is granted. If the Code is amended to provide for a limitation different from that set forth in this Section, such different limitation shall be deemed incorporated herein effective as of the date and with respect to such Options as required or permitted by such amendment to the Code. If an Option is treated as an Incentive Stock Option in part and as a Nonstatutory Stock Option in part by reason of the limitation set forth in this Section, the Participant may designate which portion of such Option the Participant is exercising. In the absence of such designation, the Participant shall be deemed to have exercised the Incentive Stock Option portion of the Option first. Upon exercise of the Option, shares issued pursuant to each such portion shall be separately identified.
(d) Participation Limits. Subject to adjustment pursuant to provisions of Section 4.4 hereof, the aggregate number of Common Shares (i) issued to Insiders under the Plan together with any other Share Based Compensation Arrangement, including the Predecessor Plans, within any 12 month period and (ii) issuable to Insiders at any time under the Plan together with any other Share Based Compensation Arrangement, including the Predecessor Plans, shall in each case not exceed 10% of the total issued and outstanding Common Shares from time to time.
11
(e) Additional TSXV Limits. In addition to the requirements in Section 4.1 and Section 5.4 and notwithstanding any other provision of this Plan, at all times when the Company is listed on the TSXV:
(i) the maximum aggregate number of Common Shares that are issuable pursuant to Awards issued or granted, as applicable, to any one Participant under the Plan, together with all other Share Based Compensation, granted or issued in any twelve (12) month period to any one Participant must not exceed 5% of the Common Shares , calculated as at the date any Award is granted or issued to the Participant (unless the Company has obtained the requisite disinterested shareholder approval);
(ii) the maximum aggregate number of Common Shares that are issuable pursuant to Awards issued or granted, as applicable, to any one Participant that is a Consultant under the Plan, together with all other Share Based Compensation, in any twelve (12) month period must not exceed 2% of the Common Shares, calculated as at the date any Award is granted or issued to the Participant;
(iii) persons who provide Investor Relations Activities may not receive any Awards other than Options;
(iv) the maximum aggregate number of Common Shares that are issuable pursuant to all Options granted or issued in any twelve (12) month period to all Participants retained to provide Investor Relations Activities must not exceed 2% of the Common Shares, calculated as at the date any Option is granted to any such Participant.
(v) Options issued to any person retained to provide Investor Relations Activities must vest in stages over a period of not less than 12 months such that: (A) no more than 1/4 of the Options vest no sooner than three months after the Options were granted; (B) no more than another 1/4 of the Options vest no sooner than six months after the Options were granted; (C) no more than another 1/4 of the Options vest no sooner than nine months after the Options were granted; and (D) no more than another 1/4 of the Options vest no sooner than 12 months after the Options were granted.
5.5 Nonemployee Director Award Limit. Notwithstanding any other provision of the Plan to the contrary, the aggregate grant date fair value (computed as of the date of grant in accordance with generally accepted accounting principles in the United States) of all Awards granted to any Nonemployee Director during any fiscal year of the Company, taken together with any cash compensation paid to such Nonemployee Director during such fiscal year, shall not exceed USD$750,000.
6. STOCK OPTIONS.
Options shall be evidenced by Award Agreements specifying the number of Common Shares covered thereby, in such form as the Committee shall establish. Such Award Agreements may incorporate all or any of the terms of the Plan by reference and shall comply with and be subject to the following terms and conditions:
6.1 Exercise Price. The exercise price for each Option shall be established in the discretion of the Committee; provided, however, that (a) the exercise price per share shall be not less than the Fair Market Value of a Common Share on the effective date of grant of the Option and (b) no Incentive Stock Option granted to a Ten Percent Owner shall have an exercise price per share less than one hundred ten percent (100%) of the Fair Market Value of a Common Share on the effective date of grant of the Option. Notwithstanding the foregoing, an Option (whether an Incentive Stock Option or a Nonstatutory Stock Option) may be granted with an exercise price less than the minimum exercise price set forth above if such Option is granted pursuant to an assumption or substitution for another option in a manner that would qualify under the provisions of Section 409A or Section 424(a) of the Code.
6.2 Exercisability and Term of Options. Options shall be exercisable at such time or times, or upon such event or events, and subject to such terms, conditions, performance criteria and restrictions as shall be determined by the Committee and set forth in the Award Agreement evidencing such Option; provided, however, that (a) no Option shall be exercisable after the expiration of ten (10) years after the effective date of grant of such Option, (b) no Incentive Stock Option granted to a Ten Percent Owner shall be exercisable after the expiration of five (5) years after the effective date of grant of such Option and (c) no Option granted to an Employee who is a non-exempt employee for purposes of the Fair Labor Standards Act of 1938, as amended, shall be first exercisable until at least six (6) months following the date of grant of such Option (except in the event of such Employee’s death, disability or retirement, upon a Change in Control, or as otherwise permitted by the Worker Economic Opportunity Act). Subject to the foregoing, unless otherwise specified by the Committee in the grant of an Option, each Option shall terminate ten (10) years after the effective date of grant of the Option, unless earlier terminated in accordance with its provisions. Notwithstanding the foregoing, should the expiration date for an Option held by a Participant who is a resident of Canada fall within a Black-Out Period, such expiration date shall be automatically extended without any further act or formality to that date which is the 10th business day after the end of the Black-Out Period, such 10th business day to be considered the expiration date for such Option for all purposes under the Plan.
12
6.3 Payment of Exercise Price.
(a) Forms of Consideration Authorized. Except as otherwise provided below, payment of the exercise price for the number of Common Shares being purchased pursuant to any Option shall be made (i) in cash, by check or in cash equivalent; (ii) if permitted by the Committee and Applicable Law, and subject to the limitations contained in Section 6.3(b), by means of a Cashless Exercise, a Net Exercise, or by such other consideration as may be approved by the Committee from time to time to the extent permitted by Applicable Law, or (iv) by any combination thereof. The Committee may at any time or from time to time grant Options which do not permit all of the foregoing forms of consideration to be used in payment of the exercise price or which otherwise restrict one or more forms of consideration.
(b) Limitations on Forms of Consideration.
(i) Cashless Exercise. A “Cashless Exercise” means the delivery of a properly executed notice of exercise together with irrevocable instructions to a broker providing for the assignment to the Company of the proceeds of a sale or loan with respect to some or all of the shares being acquired upon the exercise of the Option (including, without limitation, through an exercise complying with the provisions of Regulation T as promulgated from time to time by the Board of Governors of the United States Federal Reserve System). The Company reserves, at any and all times, the right, in the Company’s sole and absolute discretion, to establish, decline to approve or terminate any program or procedures for the exercise of Options by means of a Cashless Exercise, including with respect to one or more Participants specified by the Company notwithstanding that such program or procedures may be available to other Participants.
(ii) Net Exercise. A “Net Exercise” means where an Option is exercised without the Participant making any cash payment, such that the Company will not receive any cash from the exercise of the Option, and instead the Participant receives only the number of underlying Common Shares that is the equal to the quotient obtained by dividing:
A. | the product of the number of Options being exercised multiplied by the difference between the VWAP of the underlying Common Shares and the exercise price of the subject Options; by |
B. | the VWAP of the Common Listed Shares. |
6.4 Effect of Termination of Service.
(a) Option Exercisability. Subject to earlier termination of the Option as otherwise provided by this Plan and unless otherwise provided by the Committee, an Option shall be exercisable after the Participant’s termination of Service to the extent it is then vested only during the applicable time period determined in accordance with this Section and thereafter shall terminate.
(i) Disability. If the Participant’s Service terminates because of the Disability of the Participant, the Option, to the extent unexercised and exercisable for vested shares on the date on which the Participant’s Service terminated, may be exercised by the Participant (or the Participant’s guardian or legal representative) at any time prior to the expiration of twelve (12) months (or such other period not less than six months provided by the Award Agreement) after the date on which the Participant’s Service terminated, but in any event no later than the date of expiration of the Option’s term as set forth in the Award Agreement evidencing such Option (the “Option Expiration Date”).
(ii) Death. If the Participant’s Service terminates because of the death of the Participant, the Option, to the extent unexercised and exercisable for vested shares on the date on which the Participant’s Service terminated, may be exercised by the Participant’s legal representative or other person who acquired the right to exercise the Option by reason of the Participant’s death at any time prior to the expiration of twelve (12) months (or such other period not less than six months provided by the Award Agreement) after the date on which the Participant’s Service terminated, but in any event no later than the Option Expiration Date. The Participant’s Service shall be deemed to have terminated on account of death if the Participant dies within three (3) months (or such longer or shorter period provided by the Award Agreement) after the Participant’s termination of Service.
13
(iii) Termination for Cause. Notwithstanding any other provision of the Plan to the contrary, if the Participant’s Service is terminated for Cause or if, following the Participant’s termination of Service and during any period in which the Option otherwise would remain exercisable, the Participant engages in any act that would constitute Cause, the Option shall terminate in its entirety and cease to be exercisable immediately upon such termination of Service or act.
(iv) Other Termination of Service. Subject to Section 6.4(a)(iii), if an Participant ceases to be an eligible Participant (other than as provided in section 6.4(a)(ii) or (ii), any Options held by the Participant on the date such Participant ceased to be an eligible Participant, which have vested pursuant to this Plan, shall be exercisable only to the extent that the Participant was entitled to exercise the Option at the date such Participant ceased to be an eligible Participant and only for thirty (30) days after the date such Participant ceased to be an eligible Participant, subject to the Committee’s discretion to extend such period for up to one (1) year, or prior to the Option Expiration Date in respect thereof, whichever is sooner. Notwithstanding the foregoing, the Committee, in its discretion, may resolve that up to all of the Options held by an Participant on the date the Participant ceased to be an eligible Participant which have not yet vested shall vest immediately upon such date.
(b) Extension if Exercise Prevented by Law. Notwithstanding the foregoing, other than termination of Service for Cause, if the exercise of an Option within the applicable time periods set forth in Section 6.4(a) is prevented by the provisions of Section 14 below, the Option shall remain exercisable until the later of (i) thirty (30) days after the date such exercise first would no longer be prevented by such provisions or (ii) the end of the applicable time period under Section 6.4(a), but in any event no later than the Option Expiration Date.
6.5 Transferability of Options. During the lifetime of the Participant, an Option shall be exercisable only by the Participant or the Participant’s guardian or legal representative. An Option shall not be subject in any manner to anticipation, alienation, sale, exchange, transfer, assignment, pledge, encumbrance, or garnishment by creditors of the Participant or the Participant’s beneficiary, except transfer by will or by the laws of descent and distribution.
14
7. STOCK APPRECIATION RIGHTS.
Stock Appreciation Rights shall be evidenced by Award Agreements specifying the number of Common Shares subject to the Award, in such form as the Committee shall establish. Such Award Agreements may incorporate all or any of the terms of the Plan by reference and shall comply with and be subject to the following terms and conditions:
7.1 Types of SARs Authorized. SARs may be granted in tandem with all or any portion of a related Option (a “Tandem SAR”) or may be granted independently of any Option (a “Freestanding SAR”). A Tandem SAR may only be granted concurrently with the grant of the related Option.
7.2 Exercise Price. The exercise price for each SAR shall be established in the discretion of the Committee; provided, however, that (a) the exercise price per share subject to a Tandem SAR shall be the exercise price per share under the related Option and (b) the exercise price per share subject to a Freestanding SAR shall be not less than the Fair Market Value of a Common Share on the effective date of grant of the SAR. Notwithstanding the foregoing, an SAR may be granted with an exercise price lower than the minimum exercise price set forth above if such SAR is granted pursuant to an assumption or substitution for another stock appreciation right in a manner that would qualify under the provisions of Section 409A of the Code.
7.3 Exercisability and Term of SARs.
(a) Tandem SARs. Tandem SARs shall be exercisable only at the time and to the extent, and only to the extent, that the related Option is exercisable, subject to such provisions as the Committee may specify where the Tandem SAR is granted with respect to less than the full number of Common Shares subject to the related Option. The Committee may, in its discretion, provide in any Award Agreement evidencing a Tandem SAR that such SAR may not be exercised without the advance approval of the Company and, if such approval is not given, then the Option shall nevertheless remain exercisable in accordance with its terms. A Tandem SAR shall terminate and cease to be exercisable no later than the date on which the related Option expires or is terminated or canceled. Upon the exercise of a Tandem SAR with respect to some or all of the shares subject to such SAR, the related Option shall be canceled automatically as to the number of shares with respect to which the Tandem SAR was exercised. Upon the exercise of an Option related to a Tandem SAR as to some or all of the shares subject to such Option, the related Tandem SAR shall be canceled automatically as to the number of shares with respect to which the related Option was exercised.
(b) Freestanding SARs. Freestanding SARs shall be exercisable at such time or times, or upon such event or events, and subject to such terms, conditions, performance criteria and restrictions as shall be determined by the Committee and set forth in the Award Agreement evidencing such SAR; provided, however, that (i) no Freestanding SAR shall be exercisable after the expiration of ten (10) years after the effective date of grant of such SAR and (ii) no Freestanding SAR granted to an Employee who is a non-exempt employee for purposes of the Fair Labor Standards Act of 1938, as amended, shall be first exercisable until at least six (6) months following the date of grant of such SAR (except in the event of such Employee’s death, disability or retirement, upon a Change in Control, or as otherwise permitted by the Worker Economic Opportunity Act). Subject to the foregoing, unless otherwise specified by the Committee in the grant of a Freestanding SAR, each Freestanding SAR shall terminate ten (10) years after the effective date of grant of the SAR, unless earlier terminated in accordance with its provisions.
7.4 Exercise of SARs. Upon the exercise (or deemed exercise pursuant to Section 7.5) of an SAR, the Participant (or the Participant’s legal representative or other person who acquired the right to exercise the SAR by reason of the Participant’s death) shall be entitled to receive payment of an amount for each share with respect to which the SAR is exercised equal to the excess, if any, of the Fair Market Value of a Common Share on the date of exercise of the SAR over the exercise price. Payment of such amount shall be made (a) in the case of a Tandem SAR, solely in Common Shares in a lump sum upon the date of exercise of the SAR and (b) in the case of a Freestanding SAR, in cash, Common Shares, or any combination thereof as determined by the Committee, in a lump sum upon the date of exercise of the SAR. When payment is to be made in Common Shares, the number of shares to be issued shall be determined on the basis of the Fair Market Value of a Common Share on the date of exercise of the SAR. For purposes of Section 7, an SAR shall be deemed exercised on the date on which the Company receives notice of exercise from the Participant or as otherwise provided in Section 7.5.
15
7.5 Deemed Exercise of SARs. If, on the date on which an SAR would otherwise terminate or expire, the SAR by its terms remains exercisable immediately prior to such termination or expiration and, if so exercised, would result in a payment to the holder of such SAR, then any portion of such SAR which has not previously been exercised shall automatically be deemed to be exercised as of such date with respect to such portion.
7.6 Effect of Termination of Service. Subject to earlier termination of the SAR as otherwise provided herein and unless otherwise provided by the Committee, an SAR shall be exercisable after a Participant’s termination of Service only to the extent and during the applicable time period determined in accordance with Section 6.4 (treating the SAR as if it were an Option) and thereafter shall terminate.
7.7 Transferability of SARs. During the lifetime of the Participant, an SAR shall be exercisable only by the Participant or the Participant’s guardian or legal representative. An SAR shall not be subject in any manner to anticipation, alienation, sale, exchange, transfer, assignment, pledge, encumbrance, or garnishment by creditors of the Participant or the Participant’s beneficiary, except transfer by will or by the laws of descent and distribution.
8. RESTRICTED SHARE AWARDS.
Restricted Share Awards shall be evidenced by Award Agreements specifying whether the Award is a Restricted Share Bonus or a Restricted Share Purchase Right and the number of Common Shares subject to the Award, in such form as the Committee shall establish. Such Award Agreements may incorporate all or any of the terms of the Plan by reference and shall comply with and be subject to the following terms and conditions:
8.1 Types of Restricted Share Awards Authorized. Restricted Share Awards may be granted in the form of either a Restricted Share Bonus or a Restricted Share Purchase Right. Restricted Share Awards may be granted upon such conditions as the Committee shall determine, including, without limitation, upon the attainment of one or more Performance Goals described in Section 10.4. If either the grant of or satisfaction of Vesting Conditions applicable to a Restricted Share Award is to be contingent upon the attainment of one or more Performance Goals, the Committee shall follow procedures substantially equivalent to those set forth in Sections 10.3 through 10.5(a).
8.2 Purchase Price. The purchase price for Common Shares issuable under each Restricted Share Purchase Right shall be established by the Committee in its discretion. No monetary payment (other than applicable tax withholding) shall be required as a condition of receiving Common Shares pursuant to a Restricted Share Bonus, the consideration for which shall be services actually rendered to a Participating Company or for its benefit. Notwithstanding the foregoing, if required by Applicable Law, the Participant shall furnish consideration in the form of cash or past services rendered to a Participating Company or for its benefit having a value not less than the par value of the Common Shares subject to a Restricted Share Award.
8.3 Purchase Period. A Restricted Share Purchase Right shall be exercisable within a period established by the Committee, which shall in no event exceed thirty (30) days from the effective date of the grant of the Restricted Share Purchase Right.
8.4 Payment of Purchase Price. Except as otherwise provided below, payment of the purchase price for the number of Common Shares being purchased pursuant to any Restricted Share Purchase Right shall be made (a) in cash, by check or in cash equivalent, (b) by such other consideration as may be approved by the Committee from time to time to the extent permitted by Applicable Law, or (c) by any combination thereof.
8.5 Vesting and Restrictions on Transfer. Shares issued pursuant to any Restricted Share Award may (but need not) be made subject to Vesting Conditions based upon the satisfaction of such Service requirements, conditions, restrictions or performance criteria, including, without limitation, Performance Goals as described in Section 10.4, as shall be established by the Committee and set forth in the Award Agreement evidencing such Award. During any period in which shares acquired pursuant to a Restricted Share Award remain subject to Vesting Conditions, such shares may not be sold, exchanged, transferred, pledged, assigned or otherwise disposed of other than pursuant to an Ownership Change Event or as provided in Section 8.8. The Committee, in its discretion, may provide in any Award Agreement evidencing a Restricted Share Award that, if the satisfaction of Vesting Conditions with respect to any shares subject to such Restricted Share Award would otherwise occur on a day on which the sale of such shares would violate the provisions of the Trading Compliance Policy, then satisfaction of the Vesting Conditions automatically shall be determined on the next trading day on which the sale of such shares would not violate the Trading Compliance Policy. Upon request by the Company, each Participant shall execute any agreement evidencing such transfer restrictions prior to the receipt of Common Shares hereunder and shall promptly present to the Company any and all certificates representing Common Shares acquired hereunder for the placement on such certificates of appropriate legends evidencing any such transfer restrictions.
16
8.6 Voting Rights; Dividends and Distributions. Except as provided in this Section, Section 8.5 and any Award Agreement, during any period in which shares acquired pursuant to a Restricted Share Award remain subject to Vesting Conditions, the Participant shall have all of the rights of a shareholder of the Company holding Common Shares, including the right to vote such shares and to receive all dividends and other distributions paid with respect to such shares; provided, however, that such dividends and distributions shall be subject to the same Vesting Conditions as the shares subject to the Restricted Share Award with respect to which such dividends or distributions were declared and shall be paid to the Participant at the time such shares vest but in any event to later than the 15th day of the third month following the calendar year in which such shares vest. In the event of a dividend or distribution paid in Common Shares or other property or any other adjustment made upon a change in the capital structure of the Company as described in Section 4.4, any and all new, substituted or additional securities or other property (other than regular, periodic cash dividends) to which the Participant is entitled by reason of the Participant’s Restricted Share Award shall be immediately subject to the same Vesting Conditions as the shares subject to the Restricted Share Award with respect to which such dividends or distributions were paid or adjustments were made.
8.7 Effect of Termination of Service. Unless otherwise provided by the Committee in the Award Agreement evidencing a Restricted Share Award, if a Participant’s Service terminates for any reason, whether voluntary or involuntary (including the Participant’s death or disability), then (a) the Company shall have the option to repurchase for the purchase price paid by the Participant any shares acquired by the Participant pursuant to a Restricted Share Purchase Right which remain subject to Vesting Conditions as of the date of the Participant’s termination of Service and (b) the Participant shall forfeit to the Company any shares acquired by the Participant pursuant to a Restricted Share Bonus which remain subject to Vesting Conditions as of the date of the Participant’s termination of Service. The Company shall have the right to assign at any time any repurchase right it may have, whether or not such right is then exercisable, to one or more persons as may be selected by the Company.
8.8 Nontransferability of Restricted Share Award Rights. Rights to acquire Common Shares pursuant to a Restricted Share Award shall not be subject in any manner to anticipation, alienation, sale, exchange, transfer, assignment, pledge, encumbrance or garnishment by creditors of the Participant or the Participant’s beneficiary, except transfer by will or the laws of descent and distribution. All rights with respect to a Restricted Share Award granted to a Participant hereunder shall be exercisable during his or her lifetime only by such Participant or the Participant’s guardian or legal representative.
9. RESTRICTED SHARE UNITS.
Restricted Share Unit Awards shall be evidenced by Award Agreements specifying the number of Restricted Share Units subject to the Award, in such form as the Committee shall establish. Such Award Agreements may incorporate all or any of the terms of the Plan by reference and shall comply with and be subject to the following terms and conditions:
9.1 Grant of Restricted Share Unit Awards. Restricted Share Unit Awards may be granted upon such conditions as the Committee shall determine, including, without limitation, upon the attainment of one or more Performance Goals described in Section 10.4. If either the grant of a Restricted Share Unit Award or the Vesting Conditions with respect to such Award is to be contingent upon the attainment of one or more Performance Goals, the Committee shall follow procedures substantially equivalent to those set forth in Sections 10.3 through 10.5(a).
17
9.2 Purchase Price. No monetary payment (other than applicable tax withholding, if any) shall be required as a condition of receiving a Restricted Share Unit Award, the consideration for which shall be services actually rendered to a Participating Company or for its benefit. Notwithstanding the foregoing, if required by Applicable Law, the Participant shall furnish consideration in the form of cash or past services rendered to a Participating Company or for its benefit having a value not less than the par value of the Common Shares issued upon settlement of the Restricted Share Unit Award.
9.3 Vesting. Restricted Share Unit Awards may (but need not) be made subject to Vesting Conditions based upon the satisfaction of such Service requirements, conditions, restrictions or performance criteria, including, without limitation, Performance Goals as described in Section 10.4, as shall be established by the Committee and set forth in the Award Agreement evidencing such Award.
9.4 Voting Rights, Dividend Equivalent Rights and Distributions. Participants shall have no voting or dividend rights with respect to Common Shares represented by Restricted Share Units until the date of the issuance of such shares (as evidenced by the appropriate entry on the books of the Company or of a duly authorized transfer agent of the Company). However, the Committee, in its discretion, may provide in the Award Agreement evidencing any Restricted Share Unit Award that the Participant shall be entitled to Dividend Equivalent Rights with respect to the payment of cash dividends on Common Shares during the period beginning on the date such Award is granted and ending, with respect to each share subject to the Award, on the earlier of the date the Award is settled or the date on which it is terminated. Dividend Equivalent Rights, if any, shall be paid by crediting the Participant with a cash amount or with additional whole Restricted Share Units as of the date of payment of such cash dividends on Common Shares, as determined by the Committee. The number of additional Restricted Share Units (rounded to the nearest whole number), if any, to be credited shall be determined by dividing (a) the amount of cash dividends paid on the dividend payment date with respect to the number of Common Shares represented by the Restricted Share Units previously credited to the Participant by (b) the Fair Market Value per Common Share on such date. Such cash amount or additional Restricted Share Units shall be subject to the same terms and conditions and shall be settled in the same manner and at the same time as the Restricted Share Units originally subject to the Restricted Share Unit Award. In the event of a dividend or distribution paid in Common Shares or other property or any other adjustment made upon a change in the capital structure of the Company as described in Section 4.4, appropriate adjustments shall be made in the Participant’s Restricted Share Unit Award so that it represents the right to receive upon settlement any and all new, substituted or additional securities or other property (other than regular, periodic cash dividends) to which the Participant would be entitled by reason of the Common Shares issuable upon settlement of the Award, and all such new, substituted or additional securities or other property shall be immediately subject to the same Vesting Conditions as are applicable to the Award.
9.5 Effect of Termination of Service. Unless otherwise provided by the Committee and set forth in the Award Agreement evidencing a Restricted Share Unit Award, if a Participant’s Service terminates for any reason, whether voluntary or involuntary (including the Participant’s death or disability), then the Participant shall forfeit to the Company any Restricted Share Units pursuant to the Award which remain subject to Vesting Conditions as of the date of the Participant’s termination of Service.
9.6 Settlement of Restricted Share Unit Awards. The Company shall issue to a Participant on the date on which Restricted Share Units subject to the Participant’s Restricted Share Unit Award vest or on such other date determined by the Committee in compliance with Applicable Law, including Section 409A, if applicable, and set forth in the Award Agreement one (1) Common Share (and/or any other new, substituted or additional securities or other property pursuant to an adjustment described in Section 9.4) for each Restricted Share Unit then becoming vested or otherwise to be settled on such date, subject to the withholding of applicable taxes, if any. The Committee, in its discretion, may provide in any Award Agreement evidencing a Restricted Share Unit Award that if the settlement date with respect to any shares issuable upon vesting of Restricted Share Units would otherwise occur on a day on which the sale of such shares would violate the provisions of the Trading Compliance Policy, then the settlement date shall be deferred until the next trading day on which the sale of such shares would not violate the Trading Compliance Policy but in any event no later than the 15th day of the third calendar month following the year in which such Restricted Share Units vest. If permitted by the Committee, the Participant may elect, consistent with the requirements of Applicable Law, including Section 409A, to defer receipt of all or any portion of the Common Shares or other property otherwise issuable to the Participant pursuant to this Section, and such deferred issuance date(s) and amount(s) elected by the Participant shall be set forth in the Award Agreement. Notwithstanding the foregoing, the Committee, in its discretion, may provide for settlement of any Restricted Share Unit Award by payment to the Participant in cash of an amount equal to the Fair Market Value on the payment date of the Common Shares or other property otherwise issuable to the Participant pursuant to this Section. Restricted Share Units granted to a Participant who is a resident of Canada for the purposes of the Income Tax Act (Canada) must be settled no later than the end of the third calendar year following the year in which the Participant rendered Service resulting in the vesting of such Restricted Share Units.
18
9.7 Nontransferability of Restricted Share Unit Awards. The right to receive shares pursuant to a Restricted Share Unit Award shall not be subject in any manner to anticipation, alienation, sale, exchange, transfer, assignment, pledge, encumbrance, or garnishment by creditors of the Participant or the Participant’s beneficiary, except transfer by will or by the laws of descent and distribution. All rights with respect to a Restricted Share Unit Award granted to a Participant hereunder shall be exercisable during his or her lifetime only by such Participant or the Participant’s guardian or legal representative.
10. PERFORMANCE AWARDS.
Performance Awards shall be evidenced by Award Agreements in such form as the Committee shall establish. Such Award Agreements may incorporate all or any of the terms of the Plan by reference and shall comply with and be subject to the following terms and conditions:
10.1 Types of Performance Awards Authorized. Performance Awards may be granted in the form of either Performance Shares or Performance Units. Each Award Agreement evidencing a Performance Award shall specify the number of Performance Shares or Performance Units subject thereto, the Performance Award Formula, the Performance Goal(s) and Performance Period applicable to the Award, and the other terms, conditions and restrictions of the Award.
10.2 Initial Value of Performance Shares and Performance Units. Unless otherwise provided by the Committee in granting a Performance Award, each Performance Share shall have an initial monetary value equal to the Fair Market Value of one (1) Common Share, subject to adjustment as provided in Section 4.4, on the effective date of grant of the Performance Share, and each Performance Unit shall have an initial monetary value established by the Committee at the time of grant. The final value payable to the Participant in settlement of a Performance Award determined on the basis of the applicable Performance Award Formula will depend on the extent to which Performance Goals established by the Committee are attained within the applicable Performance Period established by the Committee.
10.3 Establishment of Performance Period, Performance Goals and Performance Award Formula. In granting each Performance Award, the Committee shall establish in writing the applicable Performance Period, Performance Award Formula and one or more Performance Goals which, when measured at the end of the Performance Period, shall determine on the basis of the Performance Award Formula the final value of the Performance Award to be paid to the Participant. The Company shall notify each Participant granted a Performance Award of the terms of such Award, including the Performance Period, Performance Goal(s) and Performance Award Formula.
19
10.4 Measurement of Performance Goals. Performance Goals shall be established by the Committee on the basis of targets to be attained (“Performance Targets”) with respect to one or more measures of business or financial performance or other criteria established by the Committee (each, a “Performance Measure”), subject to the following:
(a) Performance Measures. Performance Measures based on objective criteria shall be calculated in accordance with the Company’s financial statements, or, if such measures are not reported in the Company’s financial statements, they shall be calculated in accordance with generally accepted accounting principles, a method used generally in the Company’s industry, or in accordance with a methodology established by the Committee prior to the grant of the Performance Award. Performance Measures based on subjective criteria shall be determined on the basis established by the Committee in granting the Award. As specified by the Committee, Performance Measures may be calculated with respect to the Company and each Subsidiary Corporation consolidated therewith for financial reporting purposes, one or more Subsidiary Corporations or such division or other business unit of any of them selected by the Committee. Unless otherwise determined by the Committee prior to the grant of the Performance Award, the Performance Measures applicable to the Performance Award shall be calculated prior to the accrual of expense for any Performance Award for the same Performance Period and excluding the effect (whether positive or negative) on the Performance Measures of any change in accounting standards or any unusual or infrequently occurring event or transaction, as determined by the Committee, occurring after the establishment of the Performance Goals applicable to the Performance Award. Each such adjustment, if any, shall be made solely for the purpose of providing a consistent basis from period to period for the calculation of Performance Measures in order to prevent the dilution or enlargement of the Participant’s rights with respect to a Performance Award. Performance Measures may be based upon one or more of the following, without limitation, as determined by the Committee:
(i) revenue;
(ii) sales;
(iii) expenses;
(iv) operating income;
(v) gross margin;
(vi) operating margin;
(vii) earnings before any one or more of: share-based compensation expense, interest, taxes, depreciation and amortization;
(viii) pre-tax profit;
(ix) net operating income;
(x) net income;
(xi) economic value added;
(xii) free cash flow;
(xiii) operating cash flow, including debt-adjusted cash flow;
(xiv) balance of cash, cash equivalents and marketable securities;
(xv) share price;
(xvi) earnings per share;
(xvii) return on shareholder equity;
(xviii) return on capital;
(xix) return on assets;
(xx) return on investment;
(xxi) total shareholder return;
(xxii) employee satisfaction;
(xxiii) employee retention;
(xxiv) market share;
(xxv) customer satisfaction;
(xxvi) product development;
(xxvii) research and development expenses;
(xxviii) completion of an identified special project;
(xxix) completion of a joint venture or other corporate transaction; and
(xxx) personal performance objectives established for an individual Participant or group of Participants.
20
(b) Performance Targets. Performance Targets may include a minimum, maximum, target level and intermediate levels of performance, with the final value of a Performance Award determined under the applicable Performance Award Formula by the Performance Target level attained during the applicable Performance Period. A Performance Target may be stated as an absolute value, an increase or decrease in a value, or as a value determined relative to an index, a group of comparator companies, a budget or another standard selected by the Committee.
10.5 Settlement of Performance Awards.
(a) Determination of Final Value. As soon as practicable following the completion of the Performance Period applicable to a Performance Award, the Committee shall determine the extent to which the applicable Performance Goals have been attained and the resulting final value of the Award earned by the Participant and to be paid upon its settlement in accordance with the applicable Performance Award Formula.
(b) Discretionary Adjustment of Award Formula. In its discretion, the Committee may, either at the time it grants a Performance Award or at any time thereafter, provide for the positive or negative adjustment of the Performance Award Formula applicable to a Performance Award to reflect such Participant’s individual performance in his or her position with the Company or such other factors as the Committee may determine.
(c) Effect of Leaves of Absence. Unless otherwise required by law or a Participant’s Award Agreement, payment of the final value, if any, of a Performance Award held by a Participant who has taken in excess of thirty (30) days in unpaid leaves of absence during a Performance Period shall be prorated on the basis of the number of days of the Participant’s Service during the Performance Period during which the Participant was not on an unpaid leave of absence.
(d) Notice to Participants. As soon as practicable following the Committee’s determination in accordance with Sections 10.5(a) and (b), the Company shall notify each Participant of the determination of the Committee.
(e) Payment in Settlement of Performance Awards. As soon as practicable following the Committee’s determination in accordance with Sections 10.5(a) and (b), but in any event within the Short-Term Deferral Period described in Section 15.1 (except as otherwise provided below or consistent with the requirements of Section 409A), payment shall be made to each eligible Participant (or such Participant’s legal representative or other person who acquired the right to receive such payment by reason of the Participant’s death) of the final value of the Participant’s Performance Award. Payment of such amount shall be made in cash, Common Shares, or a combination thereof as determined by the Committee. Unless otherwise provided in the Award Agreement evidencing a Performance Award, payment shall be made in a lump sum. If permitted by the Committee, the Participant may elect, consistent with the requirements of Section 409A, to defer receipt of all or any portion of the payment to be made to the Participant pursuant to this Section, and such deferred payment date(s) elected by the Participant shall be set forth in the Award Agreement. If any payment is to be made on a deferred basis, the Committee may, but shall not be obligated to, provide for the payment during the deferral period of Dividend Equivalent Rights or interest.
21
(f) Provisions Applicable to Payment in Shares. If payment is to be made in Common Shares, the number of such shares shall be determined by dividing the final value of the Performance Award by the Fair Market Value of a Common Share determined by the method specified in the Award Agreement. Common Shares issued in payment of any Performance Award may be fully vested and freely transferable shares or may be Common Shares subject to Vesting Conditions as provided in Section 8.5. Any shares subject to Vesting Conditions shall be evidenced by an appropriate Award Agreement and shall be subject to the provisions of Sections 8.5 through 8.8 above.
10.6 Voting Rights; Dividend Equivalent Rights and Distributions. Participants shall have no voting rights with respect to Common Shares represented by Performance Share Awards until the date of the issuance of such shares, if any (as evidenced by the appropriate entry on the books of the Company or of a duly authorized transfer agent of the Company). However, the Committee, in its discretion, may provide in the Award Agreement evidencing any Performance Share Award that the Participant shall be entitled to Dividend Equivalent Rights with respect to the payment of cash dividends on Common Shares during the period beginning on the date the Award is granted and ending, with respect to each share subject to the Award, on the earlier of the date on which the Performance Shares are settled or the date on which they are forfeited. Such Dividend Equivalent Rights, if any, shall be credited to the Participant either in cash or in the form of additional whole Performance Shares as of the date of payment of such cash dividends on Common Shares, as determined by the Committee. The number of additional Performance Shares (rounded to the nearest whole number), if any, to be so credited shall be determined by dividing (a) the amount of cash dividends paid on the dividend payment date with respect to the number of Common Shares represented by the Performance Shares previously credited to the Participant by (b) the Fair Market Value per Common Share on such date. Dividend Equivalent Rights, if any, shall be accumulated and paid to the extent that the related Performance Shares become nonforfeitable. Settlement of Dividend Equivalent Rights may be made in cash, Common Shares, or a combination thereof as determined by the Committee, and may be paid on the same basis as settlement of the related Performance Share as provided in Section 10.5. Dividend Equivalent Rights shall not be paid with respect to Performance Units. In the event of a dividend or distribution paid in Common Shares or other property or any other adjustment made upon a change in the capital structure of the Company as described in Section 4.4, appropriate adjustments shall be made in the Participant’s Performance Share Award so that it represents the right to receive upon settlement any and all new, substituted or additional securities or other property (other than regular, periodic cash dividends) to which the Participant would be entitled by reason of the Common Shares issuable upon settlement of the Performance Share Award, and all such new, substituted or additional securities or other property shall be immediately subject to the same Performance Goals as are applicable to the Award.
10.7 Effect of Termination of Service. Unless otherwise provided by the Committee and set forth in the Award Agreement evidencing a Performance Award, the effect of a Participant’s termination of Service on the Performance Award shall be as follows:
(a) Death or Disability. If the Participant’s Service terminates because of the death or Disability of the Participant before the completion of the Performance Period applicable to the Performance Award, the final value of the Participant’s Performance Award shall be determined by the extent to which the applicable Performance Goals have been attained with respect to the entire Performance Period and shall be prorated based on the number of months of the Participant’s Service during the Performance Period. Payment shall be made following the end of the Performance Period in any manner permitted by Section 10.5.
(b) Other Termination of Service. If the Participant’s Service terminates for any reason except death or Disability before the completion of the Performance Period applicable to the Performance Award, such Award shall be forfeited in its entirety; provided, however, that in the event of an involuntary termination of the Participant’s Service, the Committee, in its discretion, may waive the automatic forfeiture of all or any portion of any such Award and determine the final value of the Performance Award in the manner provided by Section 10.7(a). Payment of any amount pursuant to this Section shall be made following the end of the Performance Period in any manner permitted by Section 10.5.
22
10.8 Nontransferability of Performance Awards. Prior to settlement in accordance with the provisions of the Plan, no Performance Award shall be subject in any manner to anticipation, alienation, sale, exchange, transfer, assignment, pledge, encumbrance, or garnishment by creditors of the Participant or the Participant’s beneficiary, except transfer by will or by the laws of descent and distribution. All rights with respect to a Performance Award granted to a Participant hereunder shall be exercisable during his or her lifetime only by such Participant or the Participant’s guardian or legal representative.
11. CASH-BASED AWARDS AND OTHER SHARE-BASED AWARDS.
Cash-Based Awards and Other Share-Based Awards shall be evidenced by Award Agreements in such form as the Committee shall establish. Such Award Agreements may incorporate all or any of the terms of the Plan by reference and shall comply with and be subject to the following terms and conditions:
11.1 Grant of Cash-Based Awards. Subject to the provisions of the Plan, the Committee, at any time and from time to time, may grant Cash-Based Awards to Participants in such amounts and upon such terms and conditions, including the achievement of performance criteria, as the Committee may determine.
11.2 Grant of Other Share-Based Awards. The Committee may grant other types of equity-based or equity-related Awards not otherwise described by the terms of this Plan (including the grant or offer for sale of unrestricted securities, stock-equivalent units, stock appreciation units, securities or debentures convertible into Common Shares or other forms determined by the Committee) in such amounts and subject to such terms and conditions as the Committee shall determine. Other Share-Based Awards may be made available as a form of payment in the settlement of other Awards or as payment in lieu of compensation to which a Participant is otherwise entitled. Other Share-Based Awards may involve the transfer of actual Common Shares to Participants, or payment in cash or otherwise of amounts based on the value of Common Shares and may include, without limitation, Awards designed to comply with or take advantage of the applicable local laws of jurisdictions other than the United States.
11.3 Value of Cash-Based and Other Share-Based Awards. Each Cash-Based Award shall specify a monetary payment amount or payment range as determined by the Committee. Each Other Share-Based Award shall be expressed in terms of Common Shares or units based on such Common Shares, as determined by the Committee. The Committee may require the satisfaction of such Service requirements, conditions, restrictions or performance criteria, including, without limitation, Performance Goals as described in Section 10.4, as shall be established by the Committee and set forth in the Award Agreement evidencing such Award. If the Committee exercises its discretion to establish performance criteria, the final value of Cash-Based Awards or Other Share-Based Awards that will be paid to the Participant will depend on the extent to which the performance criteria are met.
11.4 Payment or Settlement of Cash-Based Awards and Other Share-Based Awards. Payment or settlement, if any, with respect to a Cash-Based Award or an Other Share-Based Award shall be made in accordance with the terms of the Award, in cash, Common Shares or other securities or any combination thereof as the Committee determines. To the extent applicable, payment or settlement with respect to each Cash-Based Award and Other Share-Based Award shall be made in compliance with the requirements of Section 409A.
11.5 Voting Rights; Dividend Equivalent Rights and Distributions. Participants shall have no voting rights with respect to Common Shares represented by Other Share-Based Awards until the date of the issuance of such Common Shares (as evidenced by the appropriate entry on the books of the Company or of a duly authorized transfer agent of the Company), if any, in settlement of such Award. However, the Committee, in its discretion, may provide in the Award Agreement evidencing any Other Share-Based Award that the Participant shall be entitled to Dividend Equivalent Rights with respect to the payment of cash dividends on Common Shares during the period beginning on the date such Award is granted and ending, with respect to each share subject to the Award, on the earlier of the date the Award is settled or the date on which it is terminated. Such Dividend Equivalent Rights, if any, shall be paid in accordance with the provisions set forth in Section 9.4. Dividend Equivalent Rights shall not be granted with respect to Cash-Based Awards. In the event of a dividend or distribution paid in Common Shares or other property or any other adjustment made upon a change in the capital structure of the Company as described in Section 4.4, appropriate adjustments shall be made in the Participant’s Other Share-Based Award so that it represents the right to receive upon settlement any and all new, substituted or additional securities or other property (other than regular, periodic cash dividends) to which the Participant would be entitled by reason of the Common Shares issuable upon settlement of such Award, and all such new, substituted or additional securities or other property shall be immediately subject to the same Vesting Conditions and performance criteria, if any, as are applicable to the Award.
23
11.6 Effect of Termination of Service. Each Award Agreement evidencing a Cash-Based Award or Other Share-Based Award shall set forth the extent to which the Participant shall have the right to retain such Award following termination of the Participant’s Service. Such provisions shall be determined in the discretion of the Committee, need not be uniform among all Cash-Based Awards or Other Share-Based Awards, and may reflect distinctions based on the reasons for termination, subject to the requirements of Section 409A, if applicable.
11.7 Nontransferability of Cash-Based Awards and Other Share-Based Awards. Prior to the payment or settlement of a Cash-Based Award or Other Share-Based Award, the Award shall not be subject in any manner to anticipation, alienation, sale, exchange, transfer, assignment, pledge, encumbrance, or garnishment by creditors of the Participant or the Participant’s beneficiary, except transfer by will or by the laws of descent and distribution. The Committee may impose such additional restrictions on any Common Shares issued in settlement of Cash-Based Awards and Other Share-Based Awards as it may deem advisable, including, without limitation, minimum holding period requirements, restrictions under applicable securities laws, under the requirements of any stock exchange or market upon which such Common Shares are then listed and/or traded, or under any state securities laws or foreign law applicable to such Common Shares.
12. STANDARD FORMS OF AWARD AGREEMENT.
12.1 Award Agreements. Each Award shall comply with and be subject to the terms and conditions set forth in the appropriate form of Award Agreement approved by the Committee and as amended from time to time. No Award or purported Award shall be a valid and binding obligation of the Company unless evidenced by a fully executed Award Agreement, which execution may be evidenced by electronic means.
12.2 Authority to Vary Terms. The Committee shall have the authority from time to time to vary the terms of any standard form of Award Agreement either in connection with the grant or amendment of an individual Award or in connection with the authorization of a new standard form or forms; provided, however, that the terms and conditions of any such new, revised or amended standard form or forms of Award Agreement are not inconsistent with the terms of the Plan.
13. CHANGE IN CONTROL, DISSOLUTION OR LIQUIDATION.
13.1 Effect of Change in Control on Awards. In the event of a Change in Control, outstanding Awards shall be subject to the definitive agreement entered into by the Company in connection with the Change in Control or as otherwise determined by the Committee, including any requirement thereunder that the Participant sign a letter of transmittal, cancellation agreement, release of claims or other similar acknowledgement or agreement. Subject to the requirements and limitations of Applicable Law, including Section 409A, if applicable, the Committee may provide for any one or more of the following:
(a) Accelerated Vesting. In its discretion, the Committee may provide in the grant of any Award or at any other time may take such action as it deems appropriate to provide for acceleration of the exercisability, vesting and/or settlement in connection with a Change in Control of each or any outstanding Award or portion thereof and shares acquired pursuant thereto upon such conditions, including termination of the Participant’s Service prior to, upon, or following the Change in Control, and to such extent as the Committee determines.
24
(b) Assumption, Continuation or Substitution. In the event of a Change in Control, the surviving, continuing, successor, or purchasing corporation or other business entity or parent thereof, as the case may be (the “Acquiror”), may, without the consent of any Participant, assume or continue the Company’s rights and obligations under each or any Award or portion thereof outstanding immediately prior to the Change in Control or substitute for each or any such outstanding Award or portion thereof a substantially equivalent award with respect to the Acquiror’s shares, as applicable. For purposes of this Section, if so determined by the Committee in its discretion, an Award denominated in Common Shares shall be deemed assumed if, following the Change in Control, the Award confers the right to receive, subject to the terms and conditions of the Plan and the applicable Award Agreement, for each Common Share subject to the Award immediately prior to the Change in Control, the consideration (whether shares, cash, other securities or property or a combination thereof) to which a holder of a Common Share on the effective date of the Change in Control was entitled (and if holders were offered a choice of consideration, the type of consideration chosen by the holders of a majority of the outstanding Common Shares); provided, however, that if such consideration is not solely common shares of the Acquiror, the Committee may, with the consent of the Acquiror, provide for the consideration to be received upon the exercise or settlement of the Award, for each Common Share subject to the Award, to consist solely of common shares of the Acquiror equal in Fair Market Value to the per share consideration received by holders of Common Shares pursuant to the Change in Control. Any Award or portion thereof which is neither assumed or continued by the Acquiror in connection with the Change in Control nor exercised or settled as of the time of consummation of the Change in Control shall terminate and cease to be outstanding effective as of the time of consummation of the Change in Control.
(c) Cash-Out of Outstanding Share-Based Awards. The Committee may, in its discretion and without the consent of any Participant, determine that, upon the occurrence of a Change in Control, each or any Award denominated in Common Shares or portion thereof outstanding immediately prior to the Change in Control and not previously exercised or settled shall be canceled in exchange for a payment with respect to each vested Common Share (and each unvested Common Share, if so determined by the Committee) subject to such canceled Award in (i) cash, (ii) shares of the Company or of a corporation or other business entity that is a party to the Change in Control, or (iii) other property which, in any such case, shall be in an amount having a Fair Market Value equal to the Fair Market Value of the consideration to be paid per Common Share in the Change in Control, reduced (but not below zero) by the exercise or purchase price per share, if any, under such Award. In the event such determination is made by the Committee, an Award having an exercise or purchase price per share equal to or greater than the Fair Market Value of the consideration to be paid per Common Share in the Change in Control may be canceled without payment of consideration to the holder thereof. Payment pursuant to this Section (reduced by applicable withholding taxes, if any) shall be made to Participants in respect of the vested portions of their canceled Awards as soon as practicable following the date of the Change in Control and in respect of the unvested portions of their canceled Awards in accordance with the vesting schedules applicable to such Awards, consistent with the requirements of Section 409A, if applicable.
13.2 Effect of Change in Control on Nonemployee Director Awards. Subject to the requirements and limitations of Section 409A, if applicable, including as provided by Section 15.4(f), in the event of a Change in Control, each outstanding Nonemployee Director Award shall become immediately exercisable and vested in full and, except to the extent assumed, continued or substituted for pursuant to Section 13.1(b), shall be settled effective immediately prior to the time of consummation of the Change in Control.
13.3 Dissolution or Liquidation. In the event of the proposed dissolution or liquidation of the Company, the Committee will notify each Participant as soon as practicable prior to the effective date of such proposed transaction. To the extent it previously has not been exercised, an Award will terminate immediately prior to the consummation of such proposed action.
13.4 Federal Excise Tax Under Section 4999 of the Code.
(a) Excess Parachute Payment. If any acceleration of vesting pursuant to an Award and any other payment or benefit received or to be received by a Participant would subject the Participant to any excise tax pursuant to Section 4999 of the Code due to the characterization of such acceleration of vesting, payment or benefit as an “excess parachute payment” under Section 280G of the Code, then, provided such election would not subject the Participant to taxation under Section 409A, the Participant may elect to reduce the amount of any acceleration of vesting called for under the Award in order to avoid such characterization.
25
(b) Determination by Tax Firm. To aid the Participant in making any election called for under Section 13.3(a), no later than the date of the occurrence of any event that might reasonably be anticipated to result in an “excess parachute payment” to the Participant as described in Section 13.3(a), the Company shall request a determination in writing by the professional firm engaged by the Company for general tax purposes, or, if the tax firm so engaged by the Company is serving as accountant or auditor for the Acquiror, the Company will appoint a nationally recognized tax firm to make the determinations required by this Section (the “Tax Firm”). As soon as practicable thereafter, the Tax Firm shall determine and report to the Company and the Participant the amount of such acceleration of vesting, payments and benefits which would produce the greatest after-tax benefit to the Participant. For the purposes of such determination, the Tax Firm may rely on reasonable, good faith interpretations concerning the application of Sections 280G and 4999 of the Code. The Company and the Participant shall furnish to the Tax Firm such information and documents as the Tax Firm may reasonably request in order to make its required determination. The Company shall bear all fees and expenses the Tax Firm charges in connection with its services contemplated by this Section.
14. COMPLIANCE WITH SECURITIES LAW.
The grant of Awards and the issuance of Common Shares pursuant to any Award shall be subject to compliance with all applicable requirements of Applicable Law with respect to such securities and the requirements of any stock exchange or market system upon which the Common Shares may then be listed. In addition, no Award may be exercised or shares issued pursuant to an Award unless (a) any securities registration required by Applicable Law, including a registration statement under the Securities Act, shall at the time of such exercise or issuance be in effect with respect to the shares issuable pursuant to the Award, (b) in the opinion of legal counsel to the Company, the shares issuable pursuant to the Award may be issued in accordance with the terms of an applicable exemption from the registration requirements of the Securities Act or (c) such exercise or issuance is otherwise in compliance with Applicable Law. The inability of the Company to obtain from any regulatory body having jurisdiction the authority, if any, deemed by the Company’s legal counsel to be necessary to the lawful issuance and sale of any shares under the Plan shall relieve the Company of any liability in respect of the failure to issue or sell such shares as to which such requisite authority shall not have been obtained. As a condition to issuance of any Common Shares, the Company may require the Participant to satisfy any qualifications that may be necessary or appropriate, to evidence compliance with any Applicable Law and to make any representation or warranty with respect thereto as may be requested by the Company.
15. COMPLIANCE WITH SECTION 409A.
15.1 Awards Subject to Section 409A. The Company intends that Awards granted pursuant to the Plan shall either be exempt from or comply with Section 409A, and the Plan shall be so construed. The provisions of this Section 15 shall apply to any Award or portion thereof that constitutes or provides for payment of Section 409A Deferred Compensation. Such Awards may include, without limitation:
(a) A Nonstatutory Stock Option or SAR that includes any feature for the deferral of compensation other than the deferral of recognition of income until the later of (i) the exercise or disposition of the Award or (ii) the time the shares acquired pursuant to the exercise of the Award first becomes substantially vested.
(b) Any Restricted Share Unit Award, Performance Award, Cash-Based Award or Other Share-Based Award that either (i) provides by its terms for settlement of all or any portion of the Award at a time or upon an event that will or may occur later than the end of the Short-Term Deferral Period (as defined below) or (ii) permits the Participant granted the Award to elect one or more dates or events upon which the Award will be settled after the end of the Short-Term Deferral Period.
Subject to the provisions of Section 409A, the term “Short-Term Deferral Period” means the 21/2 month period ending on the later of (i) the 15th day of the third month following the end of the Participant’s taxable year in which the right to payment under the applicable portion of the Award is no longer subject to a substantial risk of forfeiture or (ii) the 15th day of the third month following the end of the Company’s taxable year in which the right to payment under the applicable portion of the Award is no longer subject to a substantial risk of forfeiture. For this purpose, the term “substantial risk of forfeiture” shall have the meaning provided by Section 409A.
26
15.2 Deferral and/or Distribution Elections. Except as otherwise permitted or required by Section 409A, the following rules shall apply to any compensation deferral and/or payment elections (each, an “Election”) that may be permitted or required by the Committee pursuant to an Award providing Section 409A Deferred Compensation:
(a) Elections must be in writing and specify the amount of the payment in settlement of an Award being deferred, as well as the time and form of payment as permitted by this Plan.
(b) Elections shall be made by the end of the Participant’s taxable year prior to the year in which services commence for which an Award may be granted to the Participant.
(c) Elections shall continue in effect until a written revocation or change in Election is received by the Company, except that a written revocation or change in Election must be received by the Company prior to the last day for making the Election determined in accordance with paragraph (b) above or as permitted by Section 15.3.
15.3 Subsequent Elections. Except as otherwise permitted or required by Section 409A, any Award providing Section 409A Deferred Compensation which permits a subsequent Election to delay the payment or change the form of payment in settlement of such Award shall comply with the following requirements:
(a) No subsequent Election may take effect until at least twelve (12) months after the date on which the subsequent Election is made.
(b) Each subsequent Election related to a payment in settlement of an Award not described in Section 15.4(a)(ii), 15.4(a)(iii) or 15.4(a)(vi) must result in a delay of the payment for a period of not less than five (5) years from the date on which such payment would otherwise have been made.
(c) No subsequent Election related to a payment pursuant to Section 15.4(a)(iv) shall be made less than twelve (12) months before the date on which such payment would otherwise have been made.
(d) Subsequent Elections shall continue in effect until a written revocation or change in the subsequent Election is received by the Company, except that a written revocation or change in a subsequent Election must be received by the Company prior to the last day for making the subsequent Election determined in accordance the preceding paragraphs of this Section 15.3.
15.4 Payment of Section 409A Deferred Compensation.
(a) Permissible Payments. Except as otherwise permitted or required by Section 409A, an Award providing Section 409A Deferred Compensation must provide for payment in settlement of the Award only upon one or more of the following:
(i) The Participant’s “separation from service” (as defined by Section 409A);
(ii) The Participant’s becoming “disabled” (as defined by Section 409A);
(iii) The Participant’s death;
(iv) A time or fixed schedule that is either (i) specified by the Committee upon the grant of an Award and set forth in the Award Agreement evidencing such Award or (ii) specified by the Participant in an Election complying with the requirements of Section 15.2 or 15.3, as applicable;
(v) A change in the ownership or effective control or the Company or in the ownership of a substantial portion of the assets of the Company determined in accordance with Section 409A; or
27
(vi) The occurrence of an “unforeseeable emergency” (as defined by Section 409A).
(b) Installment Payments. It is the intent of this Plan that any right of a Participant to receive installment payments (within the meaning of Section 409A) shall, for all purposes of Section 409A, be treated as a right to a series of separate payments.
(c) Required Delay in Payment to Specified Employee Pursuant to Separation from Service. Notwithstanding any provision of the Plan or an Award Agreement to the contrary, except as otherwise permitted by Section 409A, no payment pursuant to Section 15.4(a)(i) in settlement of an Award providing for Section 409A Deferred Compensation may be made to a Participant who is a “specified employee” (as defined by Section 409A) as of the date of the Participant’s separation from service before the date (the “Delayed Payment Date”) that is six (6) months after the date of such Participant’s separation from service, or, if earlier, the date of the Participant’s death. All such amounts that would, but for this paragraph, become payable prior to the Delayed Payment Date shall be accumulated and paid on the Delayed Payment Date.
(d) Payment Upon Disability. All distributions of Section 409A Deferred Compensation payable pursuant to Section 15.4(a)(ii) by reason of a Participant becoming disabled shall be paid in a lump sum or in periodic installments as established by the Participant’s Election. If the Participant has made no Election with respect to distributions of Section 409A Deferred Compensation upon becoming disabled, all such distributions shall be paid in a lump sum upon the determination that the Participant has become disabled.
(e) Payment Upon Death. If a Participant dies before complete distribution of amounts payable upon settlement of an Award subject to Section 409A, such undistributed amounts shall be distributed to his or her beneficiary under the distribution method for death established by the Participant’s Election upon receipt by the Committee of satisfactory notice and confirmation of the Participant’s death. If the Participant has made no Election with respect to distributions of Section 409A Deferred Compensation upon death, all such distributions shall be paid in a lump sum upon receipt by the Committee of satisfactory notice and confirmation of the Participant’s death.
(f) Payment Upon Change in Control. Notwithstanding any provision of the Plan or an Award Agreement to the contrary, to the extent that any amount constituting Section 409A Deferred Compensation would become payable under this Plan by reason of a Change in Control, such amount shall become payable only if the event constituting a Change in Control would also constitute a change in ownership or effective control of the Company or a change in the ownership of a substantial portion of the assets of the Company within the meaning of Section 409A. Any Award which constitutes Section 409A Deferred Compensation and which would vest and otherwise become payable upon a Change in Control as a result of the failure of the Acquiror to assume, continue or substitute for such Award in accordance with Section 13.1(b) shall vest to the extent provided by such Award but shall be converted automatically at the effective time of such Change in Control into a right to receive, in cash on the date or dates such award would have been settled in accordance with its then existing settlement schedule (or as required by Section 15.4(c)), an amount or amounts equal in the aggregate to the intrinsic value of the Award at the time of the Change in Control.
(g) Payment Upon Unforeseeable Emergency. The Committee shall have the authority to provide in the Award Agreement evidencing any Award providing for Section 409A Deferred Compensation for payment pursuant to Section 15.4(a)(vi) in settlement of all or a portion of such Award in the event that a Participant establishes, to the satisfaction of the Committee, the occurrence of an unforeseeable emergency. In such event, the amount(s) distributed with respect to such unforeseeable emergency cannot exceed the amounts reasonably necessary to satisfy the emergency need plus amounts necessary to pay taxes reasonably anticipated as a result of such distribution(s), after taking into account the extent to which such emergency need is or may be relieved through reimbursement or compensation by insurance or otherwise, by liquidation of the Participant’s assets (to the extent the liquidation of such assets would not itself cause severe financial hardship) or by cessation of deferrals under the Award. All distributions with respect to an unforeseeable emergency shall be made in a lump sum upon the Committee’s determination that an unforeseeable emergency has occurred. The Committee’s decision with respect to whether an unforeseeable emergency has occurred and the manner in which, if at all, the payment in settlement of an Award shall be altered or modified, shall be final, conclusive, and not subject to approval or appeal.
28
(h) Prohibition of Acceleration of Payments. Notwithstanding any provision of the Plan or an Award Agreement to the contrary, this Plan does not permit the acceleration of the time or schedule of any payment under an Award providing Section 409A Deferred Compensation, except as permitted by Section 409A.
(i) No Representation Regarding Section 409A Compliance. Notwithstanding any other provision of the Plan, the Company makes no representation that Awards shall be exempt from or comply with Section 409A. No Participating Company shall be liable for any tax, penalty or interest imposed on a Participant by Section 409A.
16. TAX WITHHOLDING.
16.1 Tax Withholding in General. The Company shall have the right to deduct from any and all payments made under the Plan, or to require the Participant, through payroll withholding, cash payment or otherwise, to make adequate provision for, the federal, state, provincial, local and foreign taxes (including social insurance), if any, required by law to be withheld by any Participating Company with respect to an Award or the shares acquired pursuant thereto. The Company shall have no obligation to deliver Common Shares, to release Common Shares from an escrow established pursuant to an Award Agreement, or to make any payment in cash under the Plan until the Participating Company Group’s tax withholding obligations have been satisfied by the Participant.
16.2 Withholding in or Directed Sale of Shares. If permitted by Applicable Law, the Company shall have the right, but not the obligation, to deduct from the Common Shares issuable to a Participant upon the exercise or settlement of an Award, or to accept from the Participant the tender of, a number of whole Common Shares having a Fair Market Value, as determined by the Company, equal to all or any part of the tax withholding obligations of any Participating Company. The Fair Market Value of any Common Shares withheld or tendered to satisfy any such tax withholding obligations shall not exceed the amount determined by the applicable minimum statutory withholding rates (or the maximum individual statutory withholding rates for the applicable jurisdiction if use of such rates would not result in adverse accounting consequences or cost). The Company may require a Participant to direct a broker, upon the vesting, exercise or settlement of an Award, to sell a portion of the shares subject to the Award determined by the Company in its discretion to be sufficient to cover the tax withholding obligations of any Participating Company and to remit an amount equal to such tax withholding obligations to such Participating Company in cash.
17. AMENDMENT, SUSPENSION OR TERMINATION OF PLAN.
The Committee may amend, suspend or terminate the Plan at any time. However, without the approval of the Company’s shareholders, there shall be (a) no increase in the maximum aggregate number of Common Shares that may be issued under the Plan (except by operation of the provisions of Sections 4.2 and 4.3), (b) no change in the class of persons eligible to receive Awards, (c) the limits on the amount of Awards that may be granted to any one person or any category of Participant; (d) the method of determining the exercise price of Options; (e) the maximum term of Options; (f) the expiry and termination provisions applicable to Options; and (g) no other amendment of the Plan that would require approval of the Company’s shareholders under any Applicable Law, including the rules of any stock exchange or quotation system upon which the Common Shares may then be listed or quoted. In addition, without the approval of the Company’s disinterested shareholders, (a) the exercise price of an Option shall not be reduced, and (b) the term of an Option held by an Insider at the time of the proposed amendment shall not be extended. Notwithstanding the foregoing, the following types of amendments will not be subject to shareholder approval: (a) amendments to fix typographical errors; and (b) amendments to clarify existing provisions of the Plan that do not have the effect of altering the scope, nature and intent of such provisions. No amendment, suspension or termination of the Plan shall affect any then outstanding Award unless expressly provided by the Committee. Except as provided by the next sentence, no amendment, suspension or termination of the Plan may have a materially adverse effect on any then outstanding Award without the consent of the Participant. Notwithstanding any other provision of the Plan or any Award Agreement to the contrary, the Committee may, in its sole and absolute discretion and without the consent of any Participant, amend the Plan or any Award Agreement, to take effect retroactively or otherwise, as it deems necessary or advisable for the purpose of conforming the Plan or such Award Agreement to any present or future Applicable Law, including, but not limited to, Section 409A.
29
18. MISCELLANEOUS PROVISIONS.
18.1 Repurchase Rights. Shares issued under the Plan may be subject to one or more repurchase options, or other conditions and restrictions as determined by the Committee in its discretion at the time the Award is granted. The Company shall have the right to assign at any time any repurchase right it may have, whether or not such right is then exercisable, to one or more persons as may be selected by the Company. Upon request by the Company, each Participant shall execute any agreement evidencing such transfer restrictions prior to the receipt of Common Shares hereunder and shall promptly present to the Company any and all certificates representing Common Shares acquired hereunder for the placement on such certificates of appropriate legends evidencing any such transfer restrictions.
18.2 Forfeiture Events.
(a) The Committee may specify in an Award Agreement that the Participant’s rights, payments, and benefits with respect to an Award shall be subject to reduction, cancellation, forfeiture, or recoupment upon the occurrence of specified events, in addition to any otherwise applicable vesting or performance conditions of an Award. Such events may include, but shall not be limited to, termination of Service for Cause or any act by a Participant, whether before or after termination of Service, that would constitute Cause for termination of Service, or any accounting restatement due to material noncompliance of the Company with any financial reporting requirements of securities laws as a result of which, and to the extent that, such reduction, cancellation, forfeiture, or recoupment is required by applicable securities laws. In addition, to the extent that claw-back or similar provisions applicable to Awards are required by applicable law, listing standards and/or policies adopted by the Company, Awards granted under the Plan shall be subject to such provisions.
(b) If the Company is required to prepare an accounting restatement due to the material noncompliance of the Company, as a result of misconduct, with any financial reporting requirement under the securities laws, any Participant who knowingly or through gross negligence engaged in the misconduct, or who knowingly or through gross negligence failed to prevent the misconduct, and any Participant who is one of the individuals subject to automatic forfeiture under Section 304 of the Sarbanes-Oxley Act of 2002, shall reimburse the Company for (i) the amount of any payment in settlement of an Award received by such Participant during the twelve- (12-) month period following the first public issuance or filing with the United States Securities and Exchange Commission (whichever first occurred) of the financial document embodying such financial reporting requirement, and (ii) any profits realized by such Participant from the sale of securities of the Company during such twelve- (12-) month period.
18.3 Provision of Information. To the extent required by Applicable Law, each Participant shall be given access to information concerning the Company equivalent to that information generally made available to the Company’s common shareholders.
18.4 Rights as Employee, Consultant or Director. No person, even though eligible pursuant to Section 5, shall have a right to be selected as a Participant, or, having been so selected, to be selected again as a Participant. Nothing in the Plan or any Award granted under the Plan shall confer on any Participant a right to remain an Employee, Consultant or Director or interfere with or limit in any way any right of a Participating Company to terminate the Participant’s Service at any time. To the extent that an Employee of a Participating Company other than the Company receives an Award under the Plan, that Award shall in no event be understood or interpreted to mean that the Company is the Employee’s employer or that the Employee has an employment relationship with the Company.
18.5 Rights as a Shareholder. A Participant shall have no rights as a shareholder with respect to any shares covered by an Award until the date of the issuance of such shares (as evidenced by the appropriate entry on the books of the Company or of a duly authorized transfer agent of the Company). No adjustment shall be made for dividends, distributions or other rights for which the record date is prior to the date such shares are issued, except as provided in Section 4.4 or another provision of the Plan.
30
18.6 Delivery of Title to Shares. Subject to any governing rules or regulations, the Company shall issue or cause to be issued the Common Shares acquired pursuant to an Award and shall deliver such shares to or for the benefit of the Participant by means of one or more of the following: (a) by delivering to the Participant evidence of book entry Common Shares credited to the account of the Participant, (b) by depositing such Common Shares for the benefit of the Participant with any broker with which the Participant has an account relationship, or (c) by delivering such Common Shares to the Participant in certificate form.
18.7 Fractional Shares. The Company shall not be required to issue fractional shares upon the exercise or settlement of any Award.
18.8 Retirement and Welfare Plans. Neither Awards made under this Plan nor Common Shares or cash paid pursuant to such Awards may be included as “compensation” for purposes of computing the benefits payable to any Participant under any Participating Company’s retirement plans (both qualified and non-qualified) or welfare benefit plans unless such other plan expressly provides that such compensation shall be taken into account in computing a Participant’s benefit. In addition, unless a written employment agreement or other service agreement specifically references Awards, a general reference to “benefits” or a similar term in such agreement shall not be deemed to refer to Awards granted hereunder.
18.9 Beneficiary Designation. Subject to local laws and procedures, each Participant may file with the Company a written designation of a beneficiary who is to receive any benefit under the Plan to which the Participant is entitled in the event of such Participant’s death before he or she receives any or all of such benefit. Each designation will revoke all prior designations by the same Participant, shall be in a form prescribed by the Company, and will be effective only when filed by the Participant in writing with the Company during the Participant’s lifetime. If a married Participant designates a beneficiary other than the Participant’s spouse, the effectiveness of such designation may be subject to the consent of the Participant’s spouse. If a Participant dies without an effective designation of a beneficiary who is living at the time of the Participant’s death, the Company will pay any remaining unpaid benefits to the Participant’s legal representative.
18.10 Severability. If any one or more of the provisions (or any part thereof) of this Plan shall be held invalid, illegal or unenforceable in any respect, such provision shall be modified so as to make it valid, legal and enforceable, and the validity, legality and enforceability of the remaining provisions (or any part thereof) of the Plan shall not in any way be affected or impaired thereby.
18.11 No Constraint on Corporate Action. Nothing in this Plan shall be construed to: (a) limit, impair, or otherwise affect the Company’s or another Participating Company’s right or power to make adjustments, reclassifications, reorganizations, or changes of its capital or business structure, or to merge or consolidate, or dissolve, liquidate, sell, or transfer all or any part of its business or assets; or (b) limit the right or power of the Company or another Participating Company to take any action which such entity deems to be necessary or appropriate.
18.12 Unfunded Obligation. Participants shall have the status of general unsecured creditors of the Company. Any amounts payable to Participants pursuant to the Plan shall be considered unfunded and unsecured obligations for all purposes, including, without limitation, Title I of the Employee Retirement Income Security Act of 1974. No Participating Company shall be required to segregate any monies from its general funds, or to create any trusts, or establish any special accounts with respect to such obligations. The Company shall retain at all times beneficial ownership of any investments, including trust investments, which the Company may make to fulfill its payment obligations hereunder. Any investments or the creation or maintenance of any trust or any Participant account shall not create or constitute a trust or fiduciary relationship between the Committee or any Participating Company and a Participant, or otherwise create any vested or beneficial interest in any Participant or the Participant’s creditors in any assets of any Participating Company. The Participants shall have no claim against any Participating Company for any changes in the value of any assets which may be invested or reinvested by the Company with respect to the Plan.
18.13 Choice of Law. Except to the extent governed by applicable United States federal law, the validity, interpretation, construction and performance of the Plan and each Award Agreement shall be governed by the laws of the Province of British Columbia and the federal laws of Canada, without regard to their conflict of law rules.
31
IN WITNESS WHEREOF, the undersigned Chief Financial Officer of the Company certifies that the foregoing sets forth the Protech Home Medical Corp. 2021 Equity Incentive Plan as duly adopted by the Company’s shareholders effective as of the Effective Date.
signed “Hardik Mehta” | |
Hardik Mehta, Chief Financial Officer |
32
Exhibit 99.100
FORM 52-109F2R
CERTIFICATION OF RE-FILED INTERIM FILINGS
VENTURE ISSUER BASIC CERTIFICATE
This certificate is being filed on the same date that Protech Home Medical Corp. has refiled its interim financial report and interim MD&A for the period ended December 31, 2019.
I, Gregory Crawford, as Chief Executive Officer of Protech Home Medical Corp., certify the following:
1. Review: I have reviewed the amended interim financial report and amended interim MD&A (together, the “amended interim filings”) of Protech Home Medical Corp. (the “issuer”) for the interim period ended December 31, 2019.
2. No misrepresentations: Based on my knowledge, having exercised reasonable diligence, the amended interim filings do not contain any untrue statement of a material fact or omit to state a material fact required to be stated or that is necessary to make a statement not misleading in light of the circumstances under which it was made, with respect to the period covered by the amended interim filings.
3. Fair presentation: Based on my knowledge, having exercised reasonable diligence, the amended interim financial report together with the other financial information included in the amended interim filings fairly present in all material respects the financial condition, financial performance and cash flows of the issuer, as of the date of and for the periods presented in the amended interim filings.
Dated: May 11, 2021
(signed) “Gregory Crawford” | |
Gregory Crawford | |
Chief Executive Officer |
NOTE TO READER
In contrast to the certificate required for non-venture issuers under National Instrument 52-109 Certification of Disclosure in Issuers’ Annual and Interim Filings (NI 52-109), this Venture Issuer Basic Certificate does not include representations relating to the establishment and maintenance of disclosure controls and procedures (DC&P) and internal control over financial reporting (ICFR), as defined in NI 52-109. In particular, the certifying officers filing this certificate are not making any representations relating to the establishment and maintenance of
i. controls and other procedures designed to provide reasonable assurance that information required to be disclosed by the issuer in its annual filings, interim filings or other reports filed or submitted under securities legislation is recorded, processed, summarized and reported within the time periods specified in securities legislation; and
ii. a process to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with the issuer’s GAAP.
The issuer’s certifying officers are responsible for ensuring that processes are in place to provide them with sufficient knowledge to support the representations they are making in this certificate. Investors should be aware that inherent limitations on the ability of certifying officers of a venture issuer to design and implement on a cost effective basis DC&P and ICFR as defined in NI 52-109 may result in additional risks to the quality, reliability, transparency and timeliness of interim and annual filings and other reports provided under securities legislation.
Exhibit 99.101
FORM 52-109F2R
CERTIFICATION OF RE-FILED INTERIM FILINGS
VENTURE ISSUER BASIC CERTIFICATE
This certificate is being filed on the same date that Protech Home Medical Corp. has refiled its interim financial report and interim MD&A for the period ended December 31, 2019.
I, Hardik Mehta, as Chief Financial Officer of Protech Home Medical Corp., certify the following:
1. Review: I have reviewed the amended interim financial report and amended interim MD&A (together, the “amended interim filings”) of Protech Home Medical Corp. (the “issuer”) for the interim period ended December 31, 2019.
2. No misrepresentations: Based on my knowledge, having exercised reasonable diligence, the amended interim filings do not contain any untrue statement of a material fact or omit to state a material fact required to be stated or that is necessary to make a statement not misleading in light of the circumstances under which it was made, with respect to the period covered by the amended interim filings.
3. Fair presentation: Based on my knowledge, having exercised reasonable diligence, the amended interim financial report together with the other financial information included in the amended interim filings fairly present in all material respects the financial condition, financial performance and cash flows of the issuer, as of the date of and for the periods presented in the amended interim filings.
Dated: May 11, 2021
(signed) “Hardik Mehta” | |
Hardik Mehta | |
Chief Financial Officer |
NOTE TO READER
In contrast to the certificate required for non-venture issuers under National Instrument 52-109 Certification of Disclosure in Issuers’ Annual and Interim Filings (NI 52-109), this Venture Issuer Basic Certificate does not include representations relating to the establishment and maintenance of disclosure controls and procedures (DC&P) and internal control over financial reporting (ICFR), as defined in NI 52-109. In particular, the certifying officers filing this certificate are not making any representations relating to the establishment and maintenance of
i. controls and other procedures designed to provide reasonable assurance that information required to be disclosed by the issuer in its annual filings, interim filings or other reports filed or submitted under securities legislation is recorded, processed, summarized and reported within the time periods specified in securities legislation; and
ii. a process to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with the issuer’s GAAP.
The issuer’s certifying officers are responsible for ensuring that processes are in place to provide them with sufficient knowledge to support the representations they are making in this certificate. Investors should be aware that inherent limitations on the ability of certifying officers of a venture issuer to design and implement on a cost effective basis DC&P and ICFR as defined in NI 52-109 may result in additional risks to the quality, reliability, transparency and timeliness of interim and annual filings and other reports provided under securities legislation.
Exhibit 99.102
FORM 52-109F2R
CERTIFICATION OF RE-FILED INTERIM FILINGS
VENTURE ISSUER BASIC CERTIFICATE
This certificate is being filed on the same date that Protech Home Medical Corp. has refiled its interim financial report and interim MD&A for the period ended March 31, 2020.
I, Gregory Crawford, as Chief Executive Officer of Protech Home Medical Corp., certify the following:
1. Review: I have reviewed the amended interim financial report and amended interim MD&A (together, the “amended interim filings”) of Protech Home Medical Corp. (the “issuer”) for the interim period ended March 31, 2020.
2. No misrepresentations: Based on my knowledge, having exercised reasonable diligence, the amended interim filings do not contain any untrue statement of a material fact or omit to state a material fact required to be stated or that is necessary to make a statement not misleading in light of the circumstances under which it was made, with respect to the period covered by the amended interim filings.
3. Fair presentation: Based on my knowledge, having exercised reasonable diligence, the amended interim financial report together with the other financial information included in the amended interim filings fairly present in all material respects the financial condition, financial performance and cash flows of the issuer, as of the date of and for the periods presented in the amended interim filings.
Dated: May 11, 2021
(signed) “Gregory Crawford” | |
Gregory Crawford | |
Chief Executive Officer |
NOTE TO READER
In contrast to the certificate required for non-venture issuers under National Instrument 52-109 Certification of Disclosure in Issuers’ Annual and Interim Filings (NI 52-109), this Venture Issuer Basic Certificate does not include representations relating to the establishment and maintenance of disclosure controls and procedures (DC&P) and internal control over financial reporting (ICFR), as defined in NI 52-109. In particular, the certifying officers filing this certificate are not making any representations relating to the establishment and maintenance of
i. controls and other procedures designed to provide reasonable assurance that information required to be disclosed by the issuer in its annual filings, interim filings or other reports filed or submitted under securities legislation is recorded, processed, summarized and reported within the time periods specified in securities legislation; and
ii. a process to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with the issuer’s GAAP.
The issuer’s certifying officers are responsible for ensuring that processes are in place to provide them with sufficient knowledge to support the representations they are making in this certificate. Investors should be aware that inherent limitations on the ability of certifying officers of a venture issuer to design and implement on a cost effective basis DC&P and ICFR as defined in NI 52-109 may result in additional risks to the quality, reliability, transparency and timeliness of interim and annual filings and other reports provided under securities legislation.
Exhibit 99.103
FORM 52-109F2R
CERTIFICATION OF RE-FILED INTERIM FILINGS
VENTURE ISSUER BASIC CERTIFICATE
This certificate is being filed on the same date that Protech Home Medical Corp. has refiled its interim financial report and interim MD&A for the period ended March 31, 2020.
I, Hardik Mehta, as Chief Financial Officer of Protech Home Medical Corp., certify the following:
1. Review: I have reviewed the amended interim financial report and amended interim MD&A (together, the “amended interim filings”) of Protech Home Medical Corp. (the “issuer”) for the interim period ended March 31, 2020.
2. No misrepresentations: Based on my knowledge, having exercised reasonable diligence, the amended interim filings do not contain any untrue statement of a material fact or omit to state a material fact required to be stated or that is necessary to make a statement not misleading in light of the circumstances under which it was made, with respect to the period covered by the amended interim filings.
3. Fair presentation: Based on my knowledge, having exercised reasonable diligence, the amended interim financial report together with the other financial information included in the amended interim filings fairly present in all material respects the financial condition, financial performance and cash flows of the issuer, as of the date of and for the periods presented in the amended interim filings.
Dated: May 11, 2021
(signed) “Hardik Mehta” | |
Hardik Mehta | |
Chief Financial Officer |
NOTE TO READER
In contrast to the certificate required for non-venture issuers under National Instrument 52-109 Certification of Disclosure in Issuers’ Annual and Interim Filings (NI 52-109), this Venture Issuer Basic Certificate does not include representations relating to the establishment and maintenance of disclosure controls and procedures (DC&P) and internal control over financial reporting (ICFR), as defined in NI 52-109. In particular, the certifying officers filing this certificate are not making any representations relating to the establishment and maintenance of
i. controls and other procedures designed to provide reasonable assurance that information required to be disclosed by the issuer in its annual filings, interim filings or other reports filed or submitted under securities legislation is recorded, processed, summarized and reported within the time periods specified in securities legislation; and
ii. a process to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with the issuer’s GAAP.
The issuer’s certifying officers are responsible for ensuring that processes are in place to provide them with sufficient knowledge to support the representations they are making in this certificate. Investors should be aware that inherent limitations on the ability of certifying officers of a venture issuer to design and implement on a cost effective basis DC&P and ICFR as defined in NI 52-109 may result in additional risks to the quality, reliability, transparency and timeliness of interim and annual filings and other reports provided under securities legislation.
Exhibit 99.104
FORM 52-109F2R
CERTIFICATION OF RE-FILED INTERIM FILINGS
VENTURE ISSUER BASIC CERTIFICATE
This certificate is being filed on the same date that Protech Home Medical Corp. has refiled its interim financial report and interim MD&A for the period ended June 30, 2020.
I, Gregory Crawford, as Chief Executive Officer of Protech Home Medical Corp., certify the following:
1. Review: I have reviewed the amended interim financial report and amended interim MD&A (together, the “amended interim filings”) of Protech Home Medical Corp. (the “issuer”) for the interim period ended June 30, 2020.
2. No misrepresentations: Based on my knowledge, having exercised reasonable diligence, the amended interim filings do not contain any untrue statement of a material fact or omit to state a material fact required to be stated or that is necessary to make a statement not misleading in light of the circumstances under which it was made, with respect to the period covered by the amended interim filings.
3. Fair presentation: Based on my knowledge, having exercised reasonable diligence, the amended interim financial report together with the other financial information included in the amended interim filings fairly present in all material respects the financial condition, financial performance and cash flows of the issuer, as of the date of and for the periods presented in the amended interim filings.
Dated: May 11, 2021
(signed) “Gregory Crawford” | |
Gregory Crawford | |
Chief Executive Officer |
NOTE TO READER
In contrast to the certificate required for non-venture issuers under National Instrument 52-109 Certification of Disclosure in Issuers’ Annual and Interim Filings (NI 52-109), this Venture Issuer Basic Certificate does not include representations relating to the establishment and maintenance of disclosure controls and procedures (DC&P) and internal control over financial reporting (ICFR), as defined in NI 52-109. In particular, the certifying officers filing this certificate are not making any representations relating to the establishment and maintenance of
i. controls and other procedures designed to provide reasonable assurance that information required to be disclosed by the issuer in its annual filings, interim filings or other reports filed or submitted under securities legislation is recorded, processed, summarized and reported within the time periods specified in securities legislation; and
ii. a process to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with the issuer’s GAAP.
The issuer’s certifying officers are responsible for ensuring that processes are in place to provide them with sufficient knowledge to support the representations they are making in this certificate. Investors should be aware that inherent limitations on the ability of certifying officers of a venture issuer to design and implement on a cost effective basis DC&P and ICFR as defined in NI 52-109 may result in additional risks to the quality, reliability, transparency and timeliness of interim and annual filings and other reports provided under securities legislation.
Exhibit 99.105
FORM 52-109F2R
CERTIFICATION OF RE-FILED INTERIM FILINGS
VENTURE ISSUER BASIC CERTIFICATE
This certificate is being filed on the same date that Protech Home Medical Corp. has refiled its interim financial report and interim MD&A for the period ended June 30, 2020.
I, Hardik Mehta, as Chief Financial Officer of Protech Home Medical Corp., certify the following:
1. Review: I have reviewed the amended interim financial report and amended interim MD&A (together, the “amended interim filings”) of Protech Home Medical Corp. (the “issuer”) for the interim period ended June 30, 2020.
2. No misrepresentations: Based on my knowledge, having exercised reasonable diligence, the amended interim filings do not contain any untrue statement of a material fact or omit to state a material fact required to be stated or that is necessary to make a statement not misleading in light of the circumstances under which it was made, with respect to the period covered by the amended interim filings.
3. Fair presentation: Based on my knowledge, having exercised reasonable diligence, the amended interim financial report together with the other financial information included in the amended interim filings fairly present in all material respects the financial condition, financial performance and cash flows of the issuer, as of the date of and for the periods presented in the amended interim filings.
Dated: May 11, 2021
(signed) “Hardik Mehta” | |
Hardik Mehta | |
Chief Financial Officer |
NOTE TO READER
In contrast to the certificate required for non-venture issuers under National Instrument 52-109 Certification of Disclosure in Issuers’ Annual and Interim Filings (NI 52-109), this Venture Issuer Basic Certificate does not include representations relating to the establishment and maintenance of disclosure controls and procedures (DC&P) and internal control over financial reporting (ICFR), as defined in NI 52-109. In particular, the certifying officers filing this certificate are not making any representations relating to the establishment and maintenance of
i. controls and other procedures designed to provide reasonable assurance that information required to be disclosed by the issuer in its annual filings, interim filings or other reports filed or submitted under securities legislation is recorded, processed, summarized and reported within the time periods specified in securities legislation; and
ii. a process to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with the issuer’s GAAP.
The issuer’s certifying officers are responsible for ensuring that processes are in place to provide them with sufficient knowledge to support the representations they are making in this certificate. Investors should be aware that inherent limitations on the ability of certifying officers of a venture issuer to design and implement on a cost effective basis DC&P and ICFR as defined in NI 52-109 may result in additional risks to the quality, reliability, transparency and timeliness of interim and annual filings and other reports provided under securities legislation.
Exhibit 99.106
1st Quarter 2020
Amended Management’s Discussion and Analysis For the Quarter Ended December 31, 2019 |
Protech Home Medical Corp. |
Notice to Reader
As described in Note 16, the Company identified certain errors and adjustments, as set out below.
1. | Recognition of deferred revenue relating to rental billings in the condensed consolidated interim financial statements as at December 31, 2019 and September 30, 2019, and for the three months ended December 31, 2019 and 2018. |
2. | Classification of expenses in the condensed consolidated interim statements of (loss) and comprehensive (loss) income for the three months ended December 31, 2019 and 2018 . |
3. | Classification of leases and equipment loans in the condensed consolidated interim statements of financial position as at December 31, 2019 and September 30, 2019, and related interest expense in the condensed consolidated interim statements of (loss) and comprehensive (loss) income for the three months ended December 31, 2019 and 2018 |
4. | Recognition of goodwill impairment in the condensed consolidated interim statements of (loss) and comprehensive (loss) income and cash flows for the three months ended December 31, 2018 that had previously been recorded in the year ended September 30, 2019. |
5. | Recognition and measurement of assets, liabilities and consideration relating to the business acquisitions that were previously reported in the previously issued condensed consolidated interim financial statements as at and for the three months ended December 31, 2019 and 2018. |
6. | During the year ended September 30, 2020, the Company revised its estimate related to reserve for expected credit losses, and presentation of certain operating expenses under discontinued operations. The effects of these changes are reflected in the condensed consolidated interim statement of financial position as at December 31, 2019, and condensed consolidated interim statement of (loss) and comprehensive (loss) income and cash flows for the three months ended December 31, 2019 and 2018. |
7. | Certain accompanying notes to the condensed consolidated interim financial statements as at December 31, 2019 and September 30, 2019, and for the three months ended December 31, 2019 and 2018. |
Accordingly, the previously issued condensed consolidated interim financial statements as at and for the three months ended December 31, 2019 have been withdrawn and are refiled dated May 10, 2021.
|
AMENDED MANAGEMENT’S DISCUSSION AND ANALYSIS December 31, 2019 and 2018 (Dollar amounts expressed in thousands of Canadian Dollars) |
The following Management’s Discussion and Analysis (“MD&A”) of the financial condition and results of operations of Protech Home Medical Corp. (“Protech” or the “Company”), prepared as of May 10, 2021 and should be read in conjunction with the amended and restated condensed consolidated financial statements for the three months ended December 31, 2019, including the notes therein. The consolidated financial statements have been prepared in accordance with International Financial Reporting Standards (“IFRS”). Unless otherwise specified, all financial data is presented in Canadian dollars. The words “we”, “our”, “us”, “Company”, and “Protech” refer to Protech Home Medical Corp and/or the management and employees of the Company.
Additional information relevant to the Company is available for review on SEDAR at www.sedar.com.
Table of Contents
Caution Regarding Forward-Looking Statements | Page 2 |
Selected Quarterly Information | Page 3 |
About Our Business and Operating Results | Pages 3 – 6 |
Financial Position | Pages 6 – 8 |
Accounting and Disclosure Matters | Pages 8 – 10 |
Financial Instruments and Risk Management | Page 11 |
Risk Factors | Pages 12 – 16 |
CAUTION REGARDING FORWARD-LOOKING STATEMENTS
Information included or incorporated by reference in this report may contain forward-looking statements. This information may involve known and unknown risks, uncertainties, and other factors which may cause our actual results, performance, or achievements to be materially different from the future results, performance, or achievements expressed or implied by any forward-looking statements. Forward-looking statements, which involve assumptions and describe our future, strategies, and expectations, are generally identifiable by use of the words “may,” “will,” “should,” “expect,” “anticipate,” “estimate,” “believe,” “plan,” “intend” or “project” or the negative of these words or other variations on these words or comparable terminology. Readers are cautioned regarding statements discussing profitability; growth strategies; anticipated trends in our industry; our future financing plans; and our anticipated needs for working capital. Actual events or results may differ materially from those discussed in forward-looking statements. There can be no assurance that the forward-looking statements contained in this report will in fact occur. The Company bases its forward-looking statements on information currently available to it and assumes no obligation to update them.
THE FORWARD-LOOKING INFORMATION CONTAINED IN THIS MD&A PRESENTS THE EXPECTATIONS OF THE COMPANY AS OF THE DATE OF THIS MD&A AND, ACCORDINGLY, IS SUBJECT TO CHANGE AFTER SUCH DATE. READERS SHOULD NOT PLACE UNDUE IMPORTANCE ON FORWARD-LOOKING INFORMATION AND SHOULD NOT RELY UPON THIS INFORMATION AS OF ANY OTHER DATE. WHILE THE COMPANY MAY ELECT TO, THE COMPANY DOES NOT UNDERTAKE TO UPDATE THIS INFORMATION AT ANY PARTICULAR TIME EXCEPT AS REQUIRED BY APPLICABLE SECURITIES LEGISLATION.
Page | 2
|
AMENDED MANAGEMENT’S DISCUSSION AND ANALYSIS December 31, 2019 (Tabular dollar amounts expressed in thousands of Canadian Dollars) |
1ST QUARTER FISCAL 2020 HIGHLIGHTS
On July 29, 2019, the Company sold all the assets of one of its subsidiaries, Patient Home Monitoring, Inc. The condensed consolidated financial statements and the notes reflect Patient Home Monitoring, Inc. as a discontinued operation. Prior year amounts have been reclassified in order to be comparable to the current year presentation.
- | Increased revenues by $1,337,000 or 7%, from the quarter ended December 31, 2018 |
- | Completed two acquisitions as part of its acquisition strategy |
- | Increased the number of respiratory resupply set-ups from 11,279 in the quarter ended December 31, 2018 to 13,439 in the quarter ended December 31, 2019, an increase of 19% |
- | Increased the number of equipment set-ups from 50,943 in the quarter ended December 31, 2018 to 62,999 in the quarter ended December 31, 2019, an increase of 24% |
- | Cash on hand of $8,363 at December 31, 2019 |
SELECTED INFORMATION
For the quarters ended | ||||||||
December 31, 2019 | December 31, 2018 | |||||||
Number of patients serviced | 39,070 | 31,199 | ||||||
Number of equipment set-ups or deliveries | 62,999 | 50,943 | ||||||
Respiratory resupply set-ups or deliveries | 13,439 | 11,279 | ||||||
Adjusted EBITDA(1) | $ | 1,577 | $ | 3,732 | ||||
Cash | $ | 8,363 | $ | 6,249 |
(1) | Refer to page five for definition of Adjusted earnings before interest, taxes, depreciation, and amortization (“EBITDA”) |
The words “we”, “our”, “us”, “Company”, and “Protech” refer to Protech Home Medical Corp. and/or the management and employees of the Company.
ABOUT OUR BUSINESS
Protech business objective
The explosive growth in the number of elderly patients in the US healthcare market is creating pressure to provide more efficient delivery systems. Healthcare providers, such as hospitals, physicians, and pharmacies, are seeking partners that can offer a range of products and services that improve outcomes, reduce hospital readmissions, and help control costs. Protech fills this need by delivering a growing number of specialized products and services to achieve these goals. Protech seeks to provide an ever-expanding line of products and services over larger geographic regions within the United States using several growth strategies.
Future Outlook
Protech expects to generate net profit and positive adjusted EBITDA, excluding IFRS treatment of non-cash items. Our top priority continues to be the generation of operational net profit, positive cash flow, and positive EBITDA in fiscal year 2020 and beyond. As we continue to expand in our existing markets, we plan to leverage our business platforms to enter new markets. As we continue to grow and achieve scale, the increasing cash generated from operations will be used to market our service and to gain market share. Our continued integration and rationalization, as well as our acquisitions, have given us a focus and path towards profitability at each business unit.
Going forward, we seek to find ways to continue to grow our customer base and penetrate these markets, while continuing to streamline our operational platform and generate positive cash flow and operational profits. We will continue to improve on operational efficiencies and call center management as they are key execution points in order to maintain our healthy gross margin while growing revenues via the cross selling of services to existing and acquired patients.
Page | 3
|
AMENDED MANAGEMENT’S DISCUSSION AND ANALYSIS December 31, 2019 (Tabular dollar amounts expressed in thousands of Canadian Dollars) |
OPERATING RESULTS
Accounting policies and estimates
The consolidated financial statements for the quarter ended December 31, 2019 are prepared under International Financial Reporting Standards (“IFRS”) issued by the governing body of the International Accounting Standards Board (“IASB”). The preparation of financial statements in conformity with IFRS requires management to make estimates and assumptions. These estimates and assumptions affect the reported amounts of assets and liabilities, disclosures of contingent assets and liabilities, and the reported amounts of revenues and expenses for the period of consolidated financial statements.
IFRS accounting treatment
Management does not rely upon non-cash IFRS accounting treatment of certain items such as impairment of goodwill and intangible assets, changes in the fair value of financial derivatives, stock-based compensation and amortization of intangible assets when planning, monitoring, and evaluating the Company’ s performance or in making financial decisions.
Non-IFRS measures
Throughout this MD&A, references are made to several measures which are believed to be meaningful in the assessment of the Company’ s performance. These metrics are non-standard measures under IFRS and may not be identical to similarly to it led measures reported by other companies. Also, in the future, we may disclose different non-IFRS financial measures to help our investors more meaningfully evaluate and compare our future results of operations to our previously reported results of operations. Readers are cautioned that the disclosure of these items is meant to add to, and not replace, the discussion of financial results as determined in accordance with IFRS. The primary purpose of these non-IFRS measures is to provide supplemental information that may prove useful to investors who wish to consider the impact of certain non-cash or uncontrollable items on the Company’ s operating performance.
EBITDA and Adjusted EBITDA
In calculating EBITDA and adjusted EBITDA certain items (mostly non-cash) are excluded from net income (loss) including interest, taxes, depreciation, amortization, change in fair value of debentures and derivative, stock-based compensation, and goodwill impairment charges. Set forth below are descriptions of the financial items that have been excluded from net income or loss to calculate EBITDA and Adjusted EBITDA and the material limitations associated with using these non-IFRS financial measures as compared to net income or loss.
- | Depreciation and amortization expense may be useful for investors to consider because they generally represent the wear and tear on our property and equipment used in our operations and amortization of intangibles valued in purchase accounting. However, we do not believe these charges necessarily reflect the current and ongoing cash charges related to our operating costs. |
- | The amount of interest expense we incur or interest income we generate may be useful for investors to consider and may result in current cash inflows or outflows. However, we do not consider the amount of interest expense or interest income to be a representative component of the day-to-day operating performance of our business. |
- | Change in fair value of debentures and derivative may be useful for investors to consider as it represents changes in the fair value of debentures, driven by changes in the trading price of the debentures. These changes are non-cash, as the settlement of the underlying debenture will be at the face value. |
- | Provision (benefit) for income taxes may be useful for investors to consider because it generally represents the taxes which may be payable for the period and the change in deferred income taxes and may reduce the amount of funds otherwise available for use. However, we do not consider the amount of income tax expense to be a representative component of the day-to-day operating performance of our business. |
- | Stock-based compensation may be useful for investors to consider because it is an estimate of the non-cash component of compensation received by the Company’s directors, officers, employees, and consultants. However, stock-based compensation is being excluded from the Company’ s operating expenses because the decisions which gave rise to these expenses were not made to increase revenue in a particular period but were made for the Company’ s long-term benefit over multiple periods. While strategic decisions, such as those to issue stock-based awards are made to further the Company’ s long-term strategic objectives and do impact the Company’s earnings under IFRS, these items affect multiple periods and management is not able to change or affect these items within any period. |
Management uses both IFRS and non-IFRS measures when planning, monitoring, and evaluating the Company’s performance.
The following table of adjusted EBITDA show our IFRS measures reconciled to EBITDA (non-IFRS measure) for the indicated periods. The table of net (loss) income is also measured based on IFRS. Both the tables are shown net of discontinued operations. Discontinued operations are comprised of the earnings after tax of discontinued operations until divestiture and the gain or loss after tax on sale, less costs to sell.
Page | 4
|
AMENDED MANAGEMENT’S DISCUSSION AND ANALYSIS December 31, 2019 (Tabular dollar amounts expressed in thousands of Canadian Dollars) |
Three
months ended
December 31, 2019 |
Three
months ended
December 31, 2018 |
|||||||
Net loss from continuing operations | $ | (4,507 | ) | $ | (917 | ) | ||
Add back: | ||||||||
Depreciation and amortization | 4,708 | 3,318 | ||||||
Interest expense, net | 604 | 396 | ||||||
Change in fair value of debentures and derivative | 730 | (68 | ) | |||||
Provision (benefit) for income taxes | - | (58 | ) | |||||
EBITDA | $ | 1,535 | $ | 2,671 | ||||
Impairment of goodwill | - | 531 | ||||||
Stock-based compensation | 42 | 530 | ||||||
Adjusted EBITDA | $ | 1,577 | $ | 3,732 |
Three
Months Ended
December 31, 2019 |
Three
Months Ended
December 31, 2018 |
|||||||
Revenue | $ | 21,846 | $ | 20,509 | ||||
Inventory sold | 6,072 | 6,012 | ||||||
Operating expenses | 14,417 | 10,761 | ||||||
Depreciation | 4,451 | 3,167 | ||||||
Amortization of intangible assets | 257 | 151 | ||||||
Stock-based compensation | 42 | 530 | ||||||
Other expense | (141 | ) | 6 | |||||
Gain on disposals of property and equipment | (79 | ) | (2 | ) | ||||
Interest expense, net | 604 | 396 | ||||||
Impairment of goodwill | - | 531 | ||||||
Change in fair value of debentures and derivative | 730 | (68 | ) | |||||
Provision (benefit) for income taxes | - | (58 | ) | |||||
Net (loss) income from continuing operations | (4,507 | ) | (917 | ) | ||||
Income (loss) from discontinued operations | (1,158 | ) | 521 | |||||
Net (loss) income | $ | (5,665 | ) | $ | (396 | ) | ||
Income (loss) per share | ||||||||
Basic | $ | (0.07 | ) | $ | 0.00 | |||
Diluted | $ | (0.07 | ) | $ | 0.00 |
Revenue
For the three months ended December 31, 2019, revenue totaled $21,846,000, an increase of $1,337,000, or 7%, from the same period in 2018. The increase in revenues is due to the acquisition of two businesses in the first quarter of fiscal year 2020.
Inventory sold
For the three months ended December 31, 2019, inventory sold totaled $6,072,000 versus $6,012,000 during the same period in 2018. Inventory sold as a percent of revenue improved from 29% to 28%. The improvement during the period was primarily due to the consolidation of vendor accounts to secure pricing and terms across all companies, and better ordering models throughout the company to only order when necessary or ordering certain inventory items at the time where a better cost is given by vendors.
Operating Expenses
For the three months ended December 31, 2019, total operating expenses were $14,417,000, an increase of $3,656,000 from the same period in 2018. The increase was primarily due to approximately $2,300,000 of bad debt expense as a result of changing the estimate for more recent collection information, $1,500,000 from the acquisitions of two businesses, offset by approximately $300,000 from lower facility costs due to the adoption of IFRS 16, Leases (see Note 2 to the condensed consolidated interim financial statements).
Page | 5
|
AMENDED MANAGEMENT’S DISCUSSION AND ANALYSIS December 31, 2019 (Tabular dollar amounts expressed in thousands of Canadian Dollars) |
Depreciation expense
Depreciation expense increased by approximately $1,284,000 to $4,451,000 for the three months ended December 31, 2019. Approximately $400,000 was due to the adoption of IFRS 16, Leases (see Note 2 to the condensed consolidated interim financial statements). The remaining increase is due to increased depreciation on monitoring equipment from the increase in revenue.
Stock-based compensation
For the three months ended December 31, 2019, there is an expense for the stock-based compensation of $42,000 compared to $530,000 for the quarter ended December 31, 2018. The decline is due to options becoming fully vested during the year ended September 30, 2019
Interest expense
Interest expense increased approximately $200,000 for the quarter ended December 31, 2019 compared to 2018 as a result of the new debentures issued during 2019 having a higher face value and interest rate as compared to the debentures that were repaid. The Company paid off the unsecured debentures of $8.625 million bearing an interest rate of 7.5% in early May 2019. The Company issued new debentures on March 7, 2019 for $15,000,000, bearing an interest rate of 8.0%. The remainder of the Company’s interest expense is due to lease liabilities bearing an interest rate between 0% to 11.5%.
Change in fair value of debentures and derivative
For the three months ended December 31, 2019, the loss on change in fair value of debentures and derivative of $730,000 was due to the increase in the trading price of the debenture. For the three months ended December 31, 2018 the change in debenture and derivative was the result of a decrease in fair value of outstanding warrants.
FINANCIAL POSITION
As
at
December 31, 2019 |
As
at
September 30, 2019 |
|||||||
Cash | $ | 8,363 | $ | 12,855 | ||||
Accounts receivable | 9,049 | 12,390 | ||||||
Inventory | 6,646 | 4,738 | ||||||
Prepaid expenses and other current assets | 854 | 800 | ||||||
Total current assets | 24,912 | 30,783 | ||||||
Property and equipment and right of use assets | 26,694 | 19,496 | ||||||
Intangible and other assets | 6,920 | 4,886 | ||||||
Total assets | $ | 58,526 | $ | 55,165 | ||||
Total current liabilities, including current portion of lease liabilities | $ | 26,886 | $ | 20,873 | ||||
Long-term debt and other long-term liabilities | 20,556 | 17,047 | ||||||
Total liabilities | 47,442 | 37,920 | ||||||
Total shareholders’ equity | 11,084 | 17,245 | ||||||
Total liabilities and shareholders’ equity | $ | 58,526 | $ | 55,165 |
Liquidity
At December 31, 2019, the Company had cash on hand of $8,363,000. The Company’s approach in managing liquidity is to ensure, to the extent possible, that it will have enough liquidity to meet its liabilities when due by continuously monitoring actual and budgeted cash flows and monitoring financial market conditions for signs of weakness.
As of December 31, 2019, the Company has $26,886,000 liabilities that are due within one year and has $24,912,000 of current assets to meet those obligations. Subsequent activity demonstrated that there was no liquidity issue as of December 31, 2019.
Capital management
The Company’s shareholders’ equity totaled $11,084,000 at December 31, 2019 and had debentures with a face amount of $15,000,000. Additionally, the Company had equipment loans and lease liabilities with a principal amount of $16,492,000.
The Company plans to raise capital, as necessary, to meet its needs and take advantage of perceived opportunities and, therefore, does not have a numeric target for its capital structure. Funds are primarily secured through debt instruments, equity capital raised by way of private placements and convertible notes. There can be no assurance that the Company will be able to continue raising capital in this manner.
Management reviews its capital management approach on an ongoing basis and believes that this approach, given the relative size of the Company, is reasonable.
Page | 6
|
AMENDED MANAGEMENT’S DISCUSSION AND ANALYSIS December 31, 2019 (Tabular dollar amounts expressed in thousands of Canadian Dollars) |
The Company invests all capital that is surplus to its immediate operational needs in short-term, liquid and highly rated financial instruments, such as cash and short-term guarantee deposits, held with major Canadian and US financial institutions.
The Company had the following equity instruments outstanding at December 31, 2019 and December 31, 2018:
As
at
December 31, 2019 (000’s) |
As
at
September 30, 2019 (000’s) |
|||||||
Common shares | 83,589 | 83,589 | ||||||
Underwriter Options | 367 | 367 | ||||||
Options – employees and consultants | 11,310 | 11,392 |
Financing
Historically and currently, the Company has financed its operations primarily from cash flow from operations, leases liabilities, debentures, equity financing and through the issuance of shares to acquire businesses. On March 7, 2019, the Company issued $15,000,000 in 8.0% Convertible Unsecured Debentures due March 7, 2024, with interest payable semi-annually on June 30th and December 30th of each year. Each $1,000 debenture is convertible at the option of the holder into approximately 769.23 common shares. After three years, the Company can force conversion of the outstanding principal at conversion price of $1.30, if the daily volume weighted average price of the common shares exceeds $1.62/share for twenty consecutive trading days. The debenture agreement also allows for payment of cash in lieu of common shares upon exercise of conversion right by the holder, equivalent of the market price on the conversion date.
The above debenture contains multiple embedded derivatives including conversion right, forced conversion option and payment in lieu of common shares. The Company elected to value the convertible debentures in their entirety (including conversion right, forced conversion option and payment in lieu of common shares) to be subsequently measured at fair value through profit or loss (FVTPL). The fair value of the debenture as at December 31, 2019 was $14,696,000.
Commitments and Contingencies
Contingencies
From time to time, the Company is involved in various legal proceedings arising from the ordinary course of business, none of the matters in which the Company is currently involved, either individually, or in the aggregate, is expected to have a material adverse effect on the Company’s consolidated financial position, results of operations, or cash flows.
Quarterly Operating Results from continuing operations
Quarter
ended
Dec. 31, 2019 |
Quarter
ended
Sep. 30, 2019 |
Quarter
ended
June 30, 2019 |
Quarter
ended
March 31,2019 |
|||||||||||||
Revenue | $ | 21,846 | $ | 19,470 | $ | 20,164 | $ | 20,824 | ||||||||
Net income (loss) from continuing operations | $ | (4,507 | ) | $ | 4,400 | $ | (12,564 | ) | $ | (591 | ) | |||||
Net income (loss) per share – continuing operations | $ | (0.06 | ) | $ | 0.05 | $ | (0.15 | ) | $ | (0.01 | ) | |||||
Total assets | $ | 58,526 | $ | 55,165 | $ | 51,583 | $ | 70,049 |
Quarter
ended
Dec. 31, 2018 |
Quarter
ended
Sep. 30, 2018 |
Quarter
ended
June 30, 2018 |
Quarter
ended
March 31,2018 |
|||||||||||||
Revenue | $ | 20,509 | $ | 18,041 | $ | 18,468 | $ | 17,117 | ||||||||
Net income (loss) from continuing operations | $ | (917 | ) | $ | 79 | $ | (1,590 | ) | $ | (3,527 | ) | |||||
Net income (loss) per share – continuing operations | $ | (0.01 | ) | $ | 0.01 | $ | (0.02 | ) | $ | (0.05 | ) | |||||
Total assets | $ | 55,947 | $ | 49,105 | $ | 47,453 | $ | 46,804 |
Results of operations for the healthcare services market in which the Company operates show little seasonality from quarter to quarter.
Related party transactions
The Company has entered into six market rate leases for office, warehouse, and retail space with a rental Company affiliated with the Company’s Chief Executive Officer, the majority of which were entered into in 2015. The leases have a combined area of 74,520 square feet. Lease payments under these leases are approximately $68,000 per month, plus taxes, utilities, and maintenance.
Page | 7
|
AMENDED MANAGEMENT’S DISCUSSION AND ANALYSIS December 31, 2019 (Tabular dollar amounts expressed in thousands of Canadian Dollars) |
Payments of approximately $55,000 and $52,000 were made to members of the Board of Directors for three months ended December 31, 2019 and 2018, respectively.
Key management personnel also participate in the Company’s share option program. The Company paid or accrued compensation to key management personnel the following:
Three
months ended
December 31, 2019 |
Three
months ended
December 31, 2018 |
|||||||
Salaries and Benefits | $ | 255 | $ | 247 | ||||
Stock-based compensation | - | 333 | ||||||
Total | $ | 255 | $ | 580 |
Off balance sheet arrangements
The Company has no material undisclosed off-balance sheet arrangements that have or are reasonably likely to have, a current or future effect on its results of operations or financial condition.
ACCOUNTING AND DISCLOSURE MATTERS
Financial reporting controls
The Company is not required to certify the design and evaluation of its disclosure controls and procedures and internal controls over financial reporting and has not completed such an evaluation.
There were no substantive changes in the Company’s disclosure controls and procedures and internal controls over financial reporting during the period ended December 31, 2019 that have materially affected, or are reasonably likely to materially affect, the Company’ s disclosure controls and procedures and internal controls over financial reporting.
Critical accounting estimates
The preparation of financial statements in conformity with IFRS requires management to make estimates and assumptions that affect the reported amounts of assets, liabilities, revenues and expenses and the disclosure of contingent assets and liabilities in the consolidated financial statements. We constantly evaluate these estimates and assumptions.
We base our estimates and assumptions on experience and other factors that are deemed reasonable under the circumstances. This involves varying degrees of judgment and uncertainty, thus the amounts currently reported in the consolidated financial statements could prove to be inaccurate in the future.
We consider the estimates and assumptions described in this section to be an important part in understanding the consolidated financial statements. These estimates and assumptions are subject to change, as they rely heavily on management’ s judgment and are based on factors that are inherently uncertain.
Revenue recognition
Revenue consists of net patient service revenue. Net patient service revenue is recognized at the time services are provided net of contractual adjustments based on an evaluation of expected collections resulting from the analysis of current and past due accounts, past collection experience in relation to amounts billed and other relevant information. Contractual adjustments result from the differences between the rates charged for services and reimbursements by government-sponsored healthcare programs and insurance companies for such services.
Accounts receivable
Accounts receivable are recorded at the time revenue is recognized and are presented on the balance sheet net of an allowance for doubtful accounts. It is possible that our estimates of the allowance for doubtful accounts could change, which could have a material impact on our operations and cash flows.
The Company will write-off receivables when the likelihood for collection is remote, the receivables have been fully reserved, and when the Company believes collection efforts have been fully exhausted and it does not intend to devote additional resources in attempting to collect.
Page | 8
|
AMENDED MANAGEMENT’S DISCUSSION AND ANALYSIS December 31, 2019 (Tabular dollar amounts expressed in thousands of Canadian Dollars) |
Share Consolidation and New Stock Symbol
On December 31, 2018, the Company consolidated its common shares on the basis of one (1) new post-consolidation common share for every five (5) pre-consolidation common shares. The Consolidation affected shareholders uniformly, including holders of outstanding incentive stock options and warrants. Unless stated otherwise, all share and per share amounts have been restated retrospectively to reflect this share consolidation. The company began trading under the TSX Venture Exchange under the stock ticker symbol “PTQ” as of December 31, 2018.
Stock-based compensation
The Company accounts for stock-based compensation, including stock options and warrants, using the fair value method as prescribed by IFRS 2. Under this method, the fair value of stock options and warrants at the date of grant is amortized over the vesting period and the offsetting credit is recorded as an increase in contributed surplus. The Company accounts for forfeitures as they happen. For the three months ended December 31, 2019 and 2018, the Company recorded stock-based compensation expense of $42,000 and $530,000, respectively.
The fair value of the vested stock options has been charged to the statement of income (loss) and comprehensive income (loss) and credited to contributed surplus over the proper vesting period. Fair value for the options granted periods ended December 31, 2018 and 2017, used the Black-Scholes option pricing model calculated using the following assumptions:
For the three months ended | For the three months ended | |||
December 31, 2019 | December 31, 2018 | |||
Share price | N/A | $0.63 | ||
Risk-free interest rate | N/A | 2.24% | ||
Expected volatility | N/A | 118.17% | ||
Expected life of option | N/A | 10 years | ||
Expected dividend yield | N/A | Nil |
Income taxes
The Company is subject to income taxes in numerous jurisdictions. Significant judgment is required in determining the provision for income taxes and the Company’s income tax provisions reflect management’s interpretation of country-specific tax law. There are many transactions and calculations for which the ultimate tax determination is uncertain during the ordinary course of business and may remain uncertain for several years after their occurrence. The Company recognizes assets and liabilities for taxation when it is probable that the relevant taxation authority will require the Company to receive or pay taxes.
Where the outcome of the determination of tax assets and liabilities is different from the amounts that were initially recorded, such differences will impact the current and deferred income taxes provision in the period in which such determination is made. Changes in tax law or changes in the way tax law is interpreted may also impact the Company’s effective tax rate as well as its business and operations.
Deferred income tax assets and liabilities are recognized for the future income tax consequences attributable to temporary differences between the financial statement carrying value of assets and liabilities and their respective income tax bases. Deferred income tax assets or liabilities are measured using enacted or substantively enacted income tax rates expected to apply to taxable income in the years in which those temporary differences are expected to be recovered or settled.
The calculation of current and deferred income taxes requires management to make estimates and assumptions and to exercise a certain amount of judgment concerning the carrying value of assets and liabilities. The current and deferred income tax assets and liabilities are also impacted by expectations about future operating results and the timing of reversal of temporary differences as well as possible audits of tax filings by regulatory agencies. Changes or differences in these estimates or assumptions may result in changes to the current and deferred tax assets and liabilities on the consolidated statements of financial position and a charge to or recovery of income tax expense.
Acquisition accounting
Accounting for business combinations requires the allocation of the Company’s purchase price to the various assets and liabilities of the acquired business at their respective fair values. The Company uses all available information to make these fair value determinations. In some instances, assumptions with respect to the timing and amount of future revenues and expenses associated with an asset or group of assets may be used to determine fair value. Actual timing and amount of net cash flows from revenues and expenses related to that asset over time may differ materially from those initial estimates, and if the timing is delayed significantly or if the net cash flows decline significantly, the asset could become impaired.
Discontinued operations
An operation is qualified as discontinued when it represents a separate major line of business and has been sold, or when the criteria for classification as an asset held for distribution have been met.
Page | 9
|
AMENDED MANAGEMENT’S DISCUSSION AND ANALYSIS December 31, 2019 (Tabular dollar amounts expressed in thousands of Canadian Dollars) |
Discontinued operations are presented on the statement of income (loss) and comprehensive income (loss) for the periods reported, comprising the earnings after tax of discontinued operations until divestiture and the gain or loss after tax on sale or fair value measurement, less costs to sell.
Significant accounting judgments
The following are the critical judgments, apart from those involving estimations, that have been made in the process of applying the Company’s accounting policies and that have the most significant effect on the amounts recognized in the consolidated financial statements.
Functional currency
Management has exercised judgment in selecting the functional currency of each of the entities that it consolidates based on the primary economic environment in which the entity operates and in reference to the various indicators including the currency that primarily influences or determines the selling prices of goods and services and the cost of production, including labor, material and other costs and the currency whose competitive forces and regulations mainly determine selling prices. The consolidated financial statements of the Company are presented in Canadian dollars, which is the parent company’s presentation currency, but which differs from its functional currency, the US dollar, which was determined using managements assumption that the primary economic environment from which it will derive its revenues and the expenses incurred to generate those revenues is the US.
Segment reporting
Management has assessed the information that is provided to the chief operating decision maker and how the business is monitored and has exercised judgment in determining that there is only one operating segment.
Asset impairment and cash generating units
For purposes of the asset impairment testing, the Company identifies cash generating units as the smallest identifiable groups of assets that generate independent cash inflows. Impairment testing is performed on these groups of assets on an annual basis or when events or circumstances indicate that the cash generating unit may become impaired considering the assessed and projected recoverable values of the cash generating unit. The Company has elected to perform the annual impairment testing in the fourth quarters.
Valuation of derivative instruments
Management has exercised judgment in the determination of the fair value of the derivative instruments. Estimating fair value for the derivatives requires determining the most appropriate valuation model, which is dependent on the terms and conditions of the instrument. This estimate also requires the judgment in the determination of the most appropriate inputs to the valuation model including the expected life of the option or warrant, volatility and dividend yield and making assumptions about them.
Recognition of leases
Management has exercised judgment in the determination of whether a contract to rent equipment represents a financing lease. Using historical returns and other operational data management has determined that in cases where the Company is the lessor, no rental agreements represent financing leases.
Goodwill impairment
Management has evaluated the recoverable amount of cash generating units and applied judgment in the discount rate and other underlying assumptions used in impairment analysis of goodwill.
Business Acquisitions
On October 31, 2018, the Company, through one of its indirect wholly owned subsidiaries, entered into a purchase agreement to acquire 100% of the shares of Central Oxygen Inc., an Indiana company. Total consideration was $395,000 in cash and stock.
On October 31, 2018, the Company, through one of its indirect wholly owned subsidiaries, entered into a purchase agreement to acquire 100% of the shares of Riverside Medical Inc., a Tennessee company. Total consideration was $131,000 in cash.
Effective October 1, 2019, the Company, through one of its indirect wholly owned subsidiaries, entered into a purchase agreement to acquire 100% of the shares of Cooley Medical Equipment, Inc., a Kentucky company, Total consideration was $3,617,000, of which $3,089,000 was paid in cash at closing with the balance of $528,000 to be paid on the 18-month anniversary of the acquisition discounted at 3.86%.
Effective December 1, 2019, the Company, through one of its indirect wholly owned subsidiaries, entered into a purchase agreement to acquire 100% of the shares of Acadia Medical Supply, Inc., a Maine company. Total consideration was $1,961,000, of which $1,334,000 was paid in cash at closing, and the balance of $627,000 to be paid on the one- and two-year anniversaries of the acquisition discounted at 3.86%.
Page | 10
|
AMENDED MANAGEMENT’S DISCUSSION AND ANALYSIS December 31, 2019 (Tabular dollar amounts expressed in thousands of Canadian Dollars) |
FINANCIAL INSTRUMENTS AND RISK MANAGEMENT
Financial instrument risk exposure
The Company’ s activities expose it to a variety of financial risks: market risk (including price risk, currency risk and interest rate risk), credit risk and liquidity risk. These risks arise from the normal course of operations and all transactions are undertaken to support the Company’ s ability to continue as a going concern. Risk management is carried out by management under policies approved by the Board of Directors. Management identifies and evaluates the financial risks in co-operation with the Company’s operating units. The Company’s overall risk management program seeks to minimize potential adverse effects on the Company’s financial performance.
Credit risk
Credit risk is the risk that one party to a financial instrument will fail to discharge an obligation and cause the other party to incur a financial loss. Financial instruments that potentially subject the Company to credit risk are primarily cash and accounts receivable. Each subsidiary places its cash with one major financial institution. At times, the cash in the financial institution is temporarily in excess of the amount insured by the Federal Deposit Insurance Corporation. Substantially all accounts receivable are due under fee-for-service contracts from third party payors, such as insurance companies and government-sponsored healthcare programs, directly from patients or for rebates due from manufacturers. Receivables generally are collected within industry norms for third-party payors and from manufacturers. The Company continuously monitors collections from its clients and maintains an allowance for bad debts based upon any specific payor collection issues that are identified and historical experience.
The Company recorded bad debt expense of $1,984,000 and $1,322,000 for three months ended December 31, 2019 and 2018, respectively. As of December 31, 2019, no one customer represented more than 10% of outstanding accounts receivable.
Currency risk
Currency risk is the risk that the Company will be subject to foreign currency fluctuations in satisfying obligations related to its foreign activities.
The Company realizes virtually all of its sales and makes a significant amount of its purchases in US dollars. Consequently, assets and liabilities are exposed to foreign exchange fluctuations.
The Company monitors and forecasts the values of net foreign currency cash flow and statement of financial position exposures and from time to time could authorize the use of derivative financial instruments such as forward foreign exchange contracts to economically hedge a portion of foreign currency fluctuations.
Based on the above net exposure at December 31, 2019, a 10% depreciation or appreciation of the US dollar against the Canadian dollar would not result in a significant effect in net loss. The Company has not employed any currency hedging programs during the periods ended December 31, 2019 or 2018.
Liquidity risk
Liquidity risk is the risk that the Company will not be able to meet its financial obligations as they become due. The Company’s approach in managing liquidity is to ensure, to the extent possible, that it will have sufficient liquidity to meet its liabilities when due, under normal conditions, by continuously monitoring actual and budgeted cash flows.
As of December 31, 2019, the Company has $26,886,000 of liabilities that are due within one year and has $24,912,000 of current assets to meet those obligations. Subsequent activity demonstrated that there was no liquidity issue as of December 31, 2019.
Interest rate risk
Interest rate risk is the risk that the future cash flows of a financial instrument will fluctuate because of changes in market interest rates. Interest rate risk is limited to potential decreases on the interest rate offered on cash and cash equivalents held with Chartered Canadian and registered US financial institutions. The Company considers this risk to be immaterial. The interest on the convertible notes is not subject to cash flow interest rate risk as these instruments bear interest at fixed rates.
Page | 11
|
AMENDED MANAGEMENT’S DISCUSSION AND ANALYSIS December 31, 2019 (Tabular dollar amounts expressed in thousands of Canadian Dollars) |
RISK FACTORS
While it is impossible to identify all such risk factors, factors that could cause actual results to differ materially from those estimated by us include:
Market Price of the Company Shares
The Company Shares are listed and posted for trading on the TSX Venture Exchange. Securities of small-cap and healthcare companies have experienced substantial volatility in the past, often based on factors unrelated to the financial performance or prospects of the companies involved. These factors include macroeconomic developments in North America and globally, and market perceptions of the attractiveness of particular industries. The price of the Company Shares is also likely to be significantly affected by short-term changes in cost of goods, or in financial condition or results of operations. Other factors unrelated to the performance of the Company that may have an effect on the price of the Company Shares include the following: the extent of analytical coverage available to investors concerning the business of the Company may be limited if investment banks with research capabilities do not follow the Company securities; lessening in trading volume and general market interest in the Company’s securities may affect an investor’s ability to trade significant numbers of the Company Shares; the size of the Company’s public float may limit the ability of some institutions to invest in the Company’s securities; and a substantial decline in the price of the Company Shares that persists for a significant period of time could cause the Company’s securities, if listed on an exchange, to be delisted from such exchange, further reducing market liquidity.
As a result of any of these factors, the market price of the Company Shares at any given point in time may not accurately reflect the long-term value of the Company. Securities class-action litigation often has been brought against companies following periods of volatility in the market price of their securities. The Company may in the future be the target of similar litigation. Securities litigation could result in substantial costs and damages and divert management’s attention and resources.
Dilution
The Company will require additional funds in respect of the further development of the company through acquisition. If the Company raises funds by issuing additional equity securities, such financing will dilute the equity interests of its shareholders.
Future Sales of Shares by Existing Shareholders
Sales of the Company Shares in the public markets, or the potential for such sales, could decrease the trading price of the Company Shares and could impair The Company’s ability to raise capital through future sales of the Company Shares. The Company may from time to time have previously issued securities at an effective price per share which will be lower than the market price of the Company Shares. Accordingly, certain shareholders of The Company may have an investment profit in the Company Shares that they may seek to liquidate.
Limited History of Operations
The Company has a limited history of operations. There can be no assurance that the business of the Company and/or its subsidiaries will be successful and generate, or maintain, any profit.
Novel Business Model
Home monitoring of patients on anticoagulants is a relatively new business, making it difficult to predict market acceptance, development, expansion, and direction. The home monitoring services to be provided by the Company represent a relatively new development in the U.S. healthcare industry. Accordingly, adoption by patients and physicians can require education, which can result in a lengthy sales cycle. The market may take time to develop. Physicians and/or patients may be slow to adopt new methods. The development of the Company’s home monitoring business will depend on many factors. These factors include: The Company’s ability to differentiate its services from those of its competitors; the extent and timing of the acceptance of the Company’s services as a replacement for, or supplement to, traditional methods of monitoring patients; the effectiveness of the Company’s sales and marketing and engagement efforts with customers and their health plan participants; the Company’s ability to provide quality customer service, as perceived by patients and physicians.
Because the monitoring business is evolving, the Company may not be able to anticipate and adapt to the developing market. Moreover, management cannot predict with certainty the future growth rate or the ultimate size of the market.
Reimbursement Rates May Decline
Reimbursement for services to be provided by the Company will come primarily from Medicare and private health insurance companies. The reimbursement rates offered are outside the control of the Company. Reimbursement rates in this area, and much of the U.S. health care market in general, have been subject to continual reductions as health insurers and governmental entities attempt to control health care costs. The extent and timing of any reduction in reimbursement rates cannot be predicted by the Company.
Reductions in reimbursement rates can have a material impact on the profitability of the Company’s operations. A reduction in reimbursement may be unrelated to any concurrent decline in the cost of operations, thereby resulting in reduced profitability. The Company’s costs of operations could increase, but the cost increases may not be passed on to customers because reimbursement rates are set without regard to the cost of service.
Dependence Upon Relationships with Key Suppliers
There are few manufacturers of equipment which can be used for home monitoring of patients on anticoagulants. There is the possibility that a new meter will encounter difficulties or “bugs” when first sent to market, and that initial technical support costs may be higher than for more well-established meters. Even if the Company switches to other competing meters, they may also encounter technical difficulties or regulatory issues. The emerging nature of the market presents risks that suppliers may not be able to provide equipment to satisfy demand. Demand may outstrip supply, leading to equipment shortages. Conversely, incorrect demand forecasting could lead to excess inventory. If the Company fails to achieve certain volume of sales, prices of meters may increase. The industry is subject to a high level of regulatory scrutiny, and government or manufacturer recalls could adversely affect the Company’s ability to provide monitoring services and achieve revenue targets.
Page | 12
|
AMENDED MANAGEMENT’S DISCUSSION AND ANALYSIS December 31, 2019 (Tabular dollar amounts expressed in thousands of Canadian Dollars) |
Inadequate supply could impair the Company’s ability to attract new business and could create upward pricing pressure on equipment and supplies, adversely affecting margins for The Company. Additionally, the market for financing home testing meters and other supplies needed by the Company is limited. Several equipment manufacturers are pursuing a strategy of vertical integration, and should the Company ever need to order equipment from those manufacturers, such equipment may not be available on favorable terms.
Reliance Upon Few Payers
The Company will earn revenues by seeking reimbursement from Medicare and private health insurance companies, with the Medicare program of the US government being the primary entity making payments. If the Medicare program were to slow payments of receivables for any reason, the Company would be adversely impacted. In addition, both governmental and private health insurance companies may seek ways to avoid or delay reimbursement, which could adversely affect cash flow and revenues for the Company.
Government Regulation
Some operations of the Company will require certain licenses and permits from the authorities in the United States. The ability of the Company and its subsidiaries to obtain, sustain or renew any such licenses and permits on acceptable terms is subject to changes in regulations and policies and to the discretion of the applicable authorities or other governmental agencies. The ability of the Company to collect certain revenues in the future will depend on the Company receiving approval of an independent diagnostic testing facility and entering into an agreement with Medicare. There is no guarantee that the Company will meet these conditions. The Company will be subject to regulation from United States federal and state authorities. Regulatory action could disrupt its ability to provide services. Such regulatory action could come in the form of actions against manufacturers, unrelated to the Company’s conduct, or actions based upon the Company’s operation. Regulatory action could prevent or delay reimbursement for certain services.
There could also be legislative action that could adversely affect the Company’s business model, including, without limitation: a decision by the United States government to become the exclusive provider of health care services at some time in the future; changes in United States federal or state laws, rules, and regulations, including those governing the corporate practice of medicine, and fee splitting; and changes in the United States Anti-Kickback Statute and Stark Law and/or similar state laws, rules, and regulations. Conversely, budgetary problems in the United States could lead to reduced funding, substantial modification, or elimination of Medicare programs, which would end reimbursement for many patients. There can be no assurance that new rules and regulations will not be enacted or that existing rules and regulations will not be applied in a manner which could limit or curtail the business of the Company. Amendments to current laws and regulations could have a substantial adverse impact on the Company.
CMS (Centers for Medicare & Medicaid Services) policies of health insurance for Medicare in the United States may affect the amount of revenue the Company receives. The Company will continue to be subject to risk that reimbursement rates for its services from both federal and private payers will decline over time. Reimbursement from federal programs is subject to constant regulatory review and increasing audits by federal authorities, the effect of which may be to increase costs of service and delay or affect reimbursement, which could negatively impact cash flow and/or revenue. Audits may be costly and time consuming, and could delay cash flow, even if the Company acted properly in all respects. The policies of health insurance carriers in the United States may affect the amount of revenue the Company receives.
Highly Competitive Market
The Company will participate in a highly competitive market, which may become more competitive as new players enter. Certain competitors will be subsidiaries or divisions of larger, much better capitalized companies. Certain competitors will have vertically integrated manufacturing and services sectors of the market. The Company may have less capital and may encounter greater operational challenges in serving the market. Better capitalized competitors may also be expected to borrow money or raise debt to purchase equipment more easily than the Company.
Low profit market segments
Where the Company provides services to a patient who does not use a meter often or for an extended period of time, profitability may be unlikely in respect of that patient. Also, certain patients may have a personal preference to travel to a lab for testing rather than self-testing. In these cases, the Company may not have a meter with the patient long enough to recoup costs. Where the Company owns the meter, the failure of the patient to return the meter to the Company may impact profitability. Legal costs of bringing an action to obtain return of a meter may exceed the value of the machine, leading to losses with certain patient populations even under favorable reimbursement environments.
Foreign Subsidiaries
The Company plans to conduct all its operations through respective United States subsidiaries. Therefore, to the extent of these holdings, the Company (directly and indirectly) will be dependent on the cash flows of these subsidiaries to meet its obligations. The ability of such subsidiaries to make payments to their parent companies may be constrained by the following factors: the level of taxation, particularly corporate profits and withholding taxes, in the jurisdiction in which each subsidiary operates; and the introduction of exchange controls or repatriation restrictions or the availability of hard currency to be repatriated.
Page | 13
|
AMENDED MANAGEMENT’S DISCUSSION AND ANALYSIS December 31, 2019 (Tabular dollar amounts expressed in thousands of Canadian Dollars) |
Attraction and Retention of Key Personnel Including Directors
The Company will have a small management team and the loss of a key individual or inability to attract suitably qualified staff could have a material adverse impact on the business of The Company. The Company may also encounter difficulties in obtaining and maintaining suitably qualified staff. The success of The Company depends on the ability of management to interpret market data correctly and to interpret and respond to economic, market and other conditions to locate and adopt appropriate opportunities. No assurance can be given that individuals with the required skills will continue employment with The Company or that replacement personnel with comparable skills can be found. The Company will be dependent on the services of key executives, including the directors of The Company and a small number of highly skilled and experienced executives and personnel. Due to the relatively small size of The Company, the loss of these persons or The Company’s inability to attract and retain additional highly skilled employees may adversely affect its business and future operations.
Dividends
The Company currently intends to retain future earnings to finance the operation, development, and expansion of its business. The Company does not anticipate paying cash dividends on the Company Shares in the foreseeable future. Payment of future cash dividends, if any, will be at the discretion of the Company Board and will depend on the Company’s financial condition, results of operations, contractual restrictions, capital requirements, business prospects and other factors that the Company Board may consider relevant. Accordingly, investors will only see a return on their investment if the value of the Company Shares appreciates.
Discretion in the Use of Available Funds
Management will have broad discretion concerning the use of the available funds of the Company as well as the timing of their expenditures. As a result, shareholders and investors will be relying on the judgment of management of the Company on completion of the Arrangement for the application of the available funds of the Company (see “Available Funds and Principal Purposes” above). Management may use the available funds in ways that an investor may not consider desirable. The results and the effectiveness of the application of the available funds are uncertain. If the available funds are not applied effectively, the Company’s results of operations may suffer.
Potential Conflicts of Interest
Some of the proposed directors and officers of the Company are engaged and will continue to be engaged as directors and officers of other companies in the search for additional business opportunities on behalf of such other corporations, and situations may arise where these directors and officers will be in direct competition with the Company. Some of the proposed directors and officers of the Company are or may become directors or officers of other companies engaged in other business ventures.
Conflicts of interest, if any, which arise may be subject to and be governed by procedures prescribed by the Business Corporations Act (British Columbia) which require a director or officer of a corporation who is a party to or is a director or an officer of or has a material interest in any person who is a party to a material contract or proposed material contract with The Company to disclose his interest and to refrain from voting on any matter in respect of such contract unless otherwise permitted under the Business Corporations Act (British Columbia). Any decision made by any of such directors and officers involving the Company should be made in accordance with their duties and obligations to deal fairly and in good faith with a view to the best interests of the Company and its shareholders.
Insurance and Uninsured Risks
The Company’s business will continue to be subject to several risks and hazards generally, including general liability. Such occurrences could result in damage to property, inventory, facilities, personal injury or death, damage to the properties of the Company, or the properties of others, monetary losses, and possible legal liability. The Company may be subject to product liability and medical malpractice claims, which may adversely affect its operations. The Company’s industry is highly regulated, and the Company may be subject to regulatory scrutiny for violations of regulations and laws. The Company could be adversely affected by the time and cost involved with regulatory investigations even if it has operated in compliance with all laws. Investigations could also adversely affect the timely payment of receivables.
Although the Company will maintain insurance to protect against certain risks in such amounts as it considers to be reasonable, its insurance will not cover all the potential risks associated with its operations. The Company may also be unable to maintain insurance to cover these risks at economically feasible premiums. Insurance coverage may not continue to be available or may not be adequate to cover any resulting liability. The Company might also become subject to liability which may not be insured against or which the Company may elect not to insure against because of premium costs or other reasons. Losses from these events may cause the Company to incur significant costs that could have a material adverse effect upon its financial performance and results of operations.
Additional Capital
The development and the business (including acquisitions) of the Company may require additional financing, which may involve high transaction costs, dilution to shareholders, high interest rates or unfavorable terms and conditions. Failure to obtain sufficient financing may result in the delay or indefinite postponement of its business plans. As the Company will likely be unable to obtain traditional debt financing until it has a profitable and longer operating history, the initial primary source of funding available to the Company will consist of equity financing. There can be no assurance that additional capital or other types of financing will be available if needed or that, if available, the terms of such financing will be favorable to the Company.
Page | 14
|
AMENDED MANAGEMENT’S DISCUSSION AND ANALYSIS December 31, 2019 (Tabular dollar amounts expressed in thousands of Canadian Dollars) |
Loss of Foreign Private Issuer Status
The Company may lose its foreign private issuer status in the future, which could result in significant additional costs and expenses. As a foreign private issuer, as defined in Rule 3b-4 under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), the Company is currently exempt from certain of the provisions of the U.S. federal securities laws. For example, an issuer with total assets in excess of US$10 million and whose outstanding equity securities are held by 2,000 or more persons, or 500 or more persons who are not “accredited investors”, must register such securities as a class under the Exchange Act. However, as a foreign private issuer subject to Canadian continuous disclosure requirements, the Company may claim the exemption from registration under the Exchange Act provided by Rule threeg3-2(b) thereunder, even if these thresholds are exceeded. To be considered a foreign private issuer, The Company must satisfy a United States shareholder test (not more than 50% of the voting securities of a company must be held by residents of the United States) if any of the following disqualifying conditions apply: (i) the majority of the Company’s executive officers or directors are United States citizens or residents; (ii) more than 50 percent of The Company’s assets are located in the United States; or (iii) The Company’s business is administered principally in the United States. Based on information available as at the date hereof, approximately 26.7% of the Company’s outstanding voting securities are anticipated to be directly or indirectly held of record by residents of the United States. If the Company loses its status as a foreign private issuer, these regulations could apply and it could also be required to commence reporting on forms required of U.S. domestic companies, such as Forms 10-K, 10-Q and 8-K. It could also become subject to U.S. proxy rules, and certain holders of its equity securities could become subject to the insider reporting and “short swing” profit rules under Section 16 of the Exchange Act. In addition, any securities issued by the Company if it loses foreign private issuer status would become subject to certain rules and restrictions under the Securities Act of 1933, as amended, even if they are issued or resold outside the United States. Compliance with the additional disclosure, compliance and timing requirements under these securities laws would likely result in increased expenses and would require the Company’s management to devote substantial time and resources to comply with new regulatory requirements.
United States Operations and Exchange Rate Fluctuations:
All the Company’s revenue generating operations will occur in the United States. The Company will be subject to a number of risks associated with its operations that may increase liability and costs and require significant management attention. These risks include:
• | compliance with laws of the United States that will apply to the Company’s United States operations, including lawful access, privacy laws and anti-corruption laws; |
• | instability in economic or political conditions, including inflation, recession, and political uncertainty; |
• | potential adverse tax consequences; and |
• | litigation in United States courts. |
In addition, the Company will be exposed to foreign exchange risk as a result of substantially all its revenue generating operations taking place in the United States and thus, revenues and expenses being earned and paid in United States dollars while the Company reports its financial statements in Canadian dollars. If the Canadian dollar appreciates relative to the United States dollar, the Company’s Canadian dollar expenses and revenues will decrease when translated from United States dollars for financial reporting purposes. Conversely, if the Canadian dollar depreciates relative to the United States dollar, the Company’s Canadian dollar expenses and revenues will increase when translated from United States dollars for financial reporting purposes. In addition, exchange rate fluctuations may affect the costs that The Company incurs in its operations. The appreciation of non- United States dollar currencies against the United States dollar can increase the cost of operations in United States dollar terms. Foreign exchange rate fluctuations may materially affect the Company’s financial condition and results of operations in future periods.
The Company will continue to translate the assets and liabilities of its United States dollar functional currency subsidiaries into Canadian dollars using exchange rates in effect at the end of each period. Revenue and expenses for these subsidiaries are translated using average exchange rates that approximate those in effect during the period. The Company will continue to maintain cash balances in both United States and Canadian dollars, but management anticipates that it will not purchase any securities or financial instruments to speculate on or hedge against a rise or fall in the value of the United States dollar.
Global Economy
Recent market events and conditions, including disruptions in the international credit markets and other financial systems and the deterioration of global economic conditions, could impede the Company’s access to capital or increase the cost of capital. From 2007 to 2009, the United States credit markets began to experience serious disruption due to deterioration in residential property values, defaults and delinquencies in the residential mortgage market and a decline in the credit quality of mortgage-backed securities. These problems led to a slow-down in residential housing market transactions, declining housing prices, delinquencies in non-mortgage consumer credit and a general decline in consumer confidence. These conditions caused a loss of confidence in the broader United States and global credit and financial markets and resulted in the collapse of, and government intervention in, major banks, financial institutions and insurers and created a climate of greater volatility, less liquidity, widening of credit spreads, a lack of price transparency, increased credit losses and tighter credit conditions which continued throughout 2012 with continued uncertainty in the European marketplace and continued uncertainty surrounding the “fiscal cliff” , the United States government deficit and the United States government spending cuts. Notwithstanding various actions by the United States and foreign governments, concerns about the general condition of the capital markets, financial instruments, banks, investment banks, insurers and other financial institutions caused the broader credit markets to deteriorate and stock markets to fluctuate substantially.
These disruptions in the current credit and financial markets have had a significant material adverse impact on several financial institutions and have limited access to capital and credit for many companies, including junior mining companies. These disruptions could, among other things, make it more difficult for the Company to obtain, or increase its cost of obtaining, capital, and financing for its operations. Access to additional capital may not be available to the Company on terms acceptable to it, or at all.
Page | 15
|
AMENDED MANAGEMENT’S DISCUSSION AND ANALYSIS December 31, 2019 (Tabular dollar amounts expressed in thousands of Canadian Dollars) |
COVID-19 Pandemic
On March 11, 2020, the World Health Organization declared the outbreak of a novel strain of coronavirus (“COVID-19”) a global pandemic. In response to the outbreak, governmental authorities in the United States and internationally have introduced various recommendations and measures to try to limit the pandemic, including travel restrictions, border closures, non-essential business closures, quarantines, self-isolations, shelters-in-place, and social distancing. The COVID-19 outbreak and the response of governmental authorities to try to limit it are having a significant impact on the private sector and individuals, including unprecedented business, employment, and economic disruptions.
Although the Company has taken steps to mitigate the impact of COVID-19, the continued presence and spread of COVID-19 nationally and globally could have a material adverse impact on the Company’s business, operations, and financial results and position, including through employee attrition, disruptions to the Company’s supply chains and sales channels, restrictions of operations at our retail stores, changes in the number of Americans with health insurance resulting in a change in demand for the Company’s products, as well as a deterioration of general economic conditions including a possible national or global recession. Due to the speed with which the COVID-19 situation is developing and the uncertainty of its magnitude, outcome, and duration, it is not possible to estimate its impact on the Company’s business, operations, financial results and position or prospects at this time.
The Company continues to monitor the situation and work with its stakeholders (including customers, employees, and suppliers) in order to assess further possible implications to its business, supply chain, and customers, and, where practicable, mitigate adverse consequences and responsibly address this global pandemic.
Finally, the actual and threatened spread of COVID-19 globally could adversely affect global economies and financial markets, resulting in a prolonged economic downturn and a decline in the value of the Company’s share price. The extent to which COVID-19 (or any other disease, epidemic, or pandemic) impacts business activity or financial results, and the duration of any such negative impact, will depend on future developments, which are highly uncertain and cannot be predicted, including new information which may emerge concerning COVID-19 and the actions required to contain or treat its impact, among others.
Page | 16
Exhibit 99.107
2nd Quarter 2020
Amended Management’s Discussion and Analysis | |
For the Three and Six Months Ended March 31, 2020 | Protech Home Medical Corp. |
Notice to Reader
The management’s discussion and analysis for the three and six month ended March 31, 2020 of the Company has been amended following the amended and restated financials reviewed by the Company’s Auditors. This amended management’s discussion and analysis for the three and six month ended March 31, 2020 (the “Amended MD&A”) was filed to address the changes as a result of the amended and restated financial statements. In particular, the Company has made revisions in this Amended MD&A as follows.
As described in Note 16, the Company identified certain errors and adjustments, as set out below.
1. | Recognition of deferred revenue relating to rental billings in the condensed consolidated interim financial statements as at March 31, 2020 and September 30, 2019, and for the three and six months ended March 31, 2020 and 2019. |
2. | Classification of expenses in the condensed consolidated interim statements of income (loss) and comprehensive income (loss) for the three and six months ended March 31, 2020 and 2019 . |
3. | Classification of leases and equipment loans in the condensed consolidated interim statements of financial position as at March 31, 2020 and September 30, 2019, and related interest expense in the condensed consolidated interim statements of income (loss) and comprehensive income (loss) for the three and six months ended March 31, 2020 and 2019 |
4. | Recognition of goodwill impairment in the condensed consolidated interim statements of income (loss) and comprehensive income (loss) and cash flows for the six months ended March 31, 2019 that had previously been recorded in the year ended September 30, 2019. |
5. | Recognition and measurement of assets, liabilities and consideration relating to the business acquisitions that were previously reported in the previously issued condensed consolidated interim financial statements as at and for the three and six months ended March 31, 2020. |
6. | During the year ended September 30, 2020, the Company revised its estimate related to reserve for expected credit losses, and presentation of certain operating expenses under discontinued operations. The effects of these changes are reflected in the condensed consolidated interim statements of financial position as at March 31, 2020, and the condensed consolidated interim statement of income (loss) and comprehensive income (loss) and cash flows for the period ended March 31, 2020 and 2019. |
7. | Certain accompanying notes to the condensed consolidated interim financial statements as at March 31, 2020 and September 30, 2019, and for the three and six months ended March 31, 2020 and 2019. |
Accordingly, the previously issued condensed consolidated interim financial statements as at and for the three and six months ended March 31, 2020 have been withdrawn and are refiled dated May 10, 2021.
|
AMENDED
MANAGEMENT’S DISCUSSION AND ANALYSIS
March 31, 2020 and 2019 (Dollar amounts expressed in thousands of Canadian Dollars) |
The following Management’s Discussion and Analysis (“MD&A”) of the financial condition and results of operations of Protech Home Medical Corp. (“Protech” or the “Company”), prepared as of May 10, 2021 and should be read in conjunction with the amended and restated consolidated financial statements for the three and six months ended March 31, 2020, including the notes therein. The consolidated financial statements have been prepared in accordance with International Financial Reporting Standards (“IFRS”). Unless otherwise specified, all financial data is presented in Canadian dollars. The words “we”, “our”, “us”, “Company”, and “Protech” refer to Protech Home Medical Corp and/or the management and employees of the Company.
Additional information relevant to the Company is available for review on SEDAR at www.sedar.com.
Table of Contents
Caution Regarding Forward-Looking Statements | Page 2 |
Selected Quarterly Information | Page 3 |
About Our Business and Operating Results | Pages 3 – 6 |
Financial Position | Pages 6 – 8 |
Accounting and Disclosure Matters | Pages 8 – 11 |
Financial Instruments and Risk Management | Pages 11 – 12 |
Risk Factors | Pages 12 – 17 |
CAUTION REGARDING FORWARD-LOOKING STATEMENTS
Information included or incorporated by reference in this report may contain forward-looking statements. This information may involve known and unknown risks, uncertainties, and other factors which may cause our actual results, performance, or achievements to be materially different from the future results, performance, or achievements expressed or implied by any forward-looking statements. Forward-looking statements, which involve assumptions and describe our future, strategies, and expectations, are generally identifiable by use of the words “may,” “will,” “should,” “expect,” “anticipate,” “estimate,” “believe,” “plan,” “intend” or “project” or the negative of these words or other variations on these words or comparable terminology. Readers are cautioned regarding statements discussing profitability; growth strategies; anticipated trends in our industry; our future financing plans; and our anticipated needs for working capital. Actual events or results may differ materially from those discussed in forward-looking statements. There can be no assurance that the forward-looking statements contained in this report will in fact occur. The Company bases its forward-looking statements on information currently available to it and assumes no obligation to update them.
THE FORWARD-LOOKING INFORMATION CONTAINED IN THIS MD&A PRESENTS THE EXPECTATIONS OF THE COMPANY AS OF THE DATE OF THIS MD&A AND, ACCORDINGLY, IS SUBJECT TO CHANGE AFTER SUCH DATE. READERS SHOULD NOT PLACE UNDUE IMPORTANCE ON FORWARD-LOOKING INFORMATION AND SHOULD NOT RELY UPON THIS INFORMATION AS OF ANY OTHER DATE. WHILE THE COMPANY MAY ELECT TO, THE COMPANY DOES NOT UNDERTAKE TO UPDATE THIS INFORMATION AT ANY PARTICULAR TIME EXCEPT AS REQUIRED BY APPLICABLE SECURITIES LEGISLATION.
Page | 2
|
AMENDED
MANAGEMENT’S DISCUSSION AND ANALYSIS
March 31, 2020 (Tabular dollar amounts expressed in thousands of Canadian Dollars) |
INTERIM MD&A - QUARTERLY HIGHLIGHTS
On July 29, 2019, the Company sold all the assets of one of its subsidiaries, Patient Home Monitoring, Inc. The condensed consolidated financial statements and the notes reflect Patient Home Monitoring, Inc. as a discontinued operation. Prior year amounts have been reclassified in order to be comparable to the current year presentation.
- | Increased revenues by $3.2 million, or 15%, from the quarter ended March 31, 2019 |
- | Increased the number of equipment set-ups to 63,956 in the quarter ended March 31, 2020 from 51,676 in the quarter ended March 31, 2019, an increase of 24% |
- | Increased the number of respiratory resupply set-ups to 13,980 in the quarter ended March 31, 2020 from 11,641 in the quarter ended March 31, 2019, an increase of 20% |
- | Generated Adjusted EBITDA of $5,580,000, a 47% increase from the prior year quarter |
SELECTED INFORMATION
For
the three months
ended March 31, 2020 |
For
the three months
ended March 31, 2019 |
For
the six months
ended March 31, 2020 |
For
the six months
ended March 31, 2019 |
|||||||||||||
Number of patients serviced(1) | 40,372 | 31,464 | 63,891 | 52,858 | ||||||||||||
Number of equipment set-ups or deliveries | 63,956 | 51,676 | 126,955 | 102,619 | ||||||||||||
Respiratory resupply set-ups or deliveries | 13,980 | 11,641 | 27,419 | 22,920 | ||||||||||||
Adjusted EBITDA(2) | $ | 5,580 | $ | 3,797 | $ | 7,157 | $ | 7,529 |
(1) | The six-month periods do not equal the sum of the two respective three-month periods due to some patients being serviced in both three-month periods. |
(2) | Refer to page four for definition of Adjusted earnings before interest, taxes, depreciation, and amortization (“EBITDA”) |
The words “we”, “our”, “us”, “Company”, and “Protech” refer to Protech Home Medical Corp. and/or the management and employees of the Company.
ABOUT OUR BUSINESS
Protech business objective
The growth in the number of elderly patients in the US healthcare market is creating pressure to provide more efficient delivery systems. Healthcare providers, such as hospitals, physicians, and pharmacies, are seeking partners that can offer a range of products and services that improve outcomes, reduce hospital readmissions, and help control costs. Protech fills this need by delivering a growing number of specialized products and services to achieve these goals. Protech seeks to provide an ever-expanding line of products and services over larger geographic regions within the United States using several growth strategies.
Future Outlook
Protech expects to generate net profit and positive adjusted EBITDA, excluding IFRS treatment of non-cash items. Our top priority continues to be the generation of operational net profit, positive cash flow, and positive EBITDA in fiscal year 2020 and beyond. As we continue to expand in our existing markets, we plan to leverage our business platforms to enter new markets. As we continue to grow and achieve scale, the increasing cash generated from operations will be used to market our service and to gain market share. Our continued integration and rationalization, as well as our acquisitions, have given us a focus and path towards profitability at each business unit.
Going forward, we seek to find ways to continue to grow our customer base and penetrate these markets, while continuing to streamline our operational platform and generate positive cash flow and operational profits. We will continue to improve on operational efficiencies and call center management as they are key execution points in order to maintain our healthy gross margin while growing revenues via the cross selling of services to existing and acquired patients.
OPERATING RESULTS
Accounting policies and estimates
The consolidated financial statements for the quarter ended March 31, 2020 are prepared under International Financial Reporting Standards (“IFRS”) issued by the governing body of the International Accounting Standards Board (“IASB”). The preparation of financial statements in conformity with IFRS requires management to make estimates and assumptions. These estimates and assumptions affect the reported amounts of assets and liabilities, disclosures of contingent assets and liabilities, and the reported amounts of revenues and expenses for the period of consolidated financial statements.
Page | 3
|
AMENDED
MANAGEMENT’S DISCUSSION AND ANALYSIS
March 31, 2020 (Tabular dollar amounts expressed in thousands of Canadian Dollars) |
IFRS accounting treatment
Management does not rely upon non-cash IFRS accounting treatment of certain items such as impairment of goodwill and intangible assets, changes in the fair value of financial derivatives, stock based compensation and amortization of intangible assets when planning, monitoring, and evaluating the Company’ s performance or in making financial decisions.
Non-IFRS measures
Throughout this MD&A, references are made to several measures which are believed to be meaningful in the assessment of the Company’s performance. These metrics are non-standard measures under IFRS and may not be identical to similar measures reported by other companies. Also, in the future, we may disclose different non-IFRS financial measures to help our investors more meaningfully evaluate and compare our future results of operations to our previously reported results of operations. Readers are cautioned that the disclosure of these items is meant to add to, and not replace, the discussion of financial results as determined in accordance with IFRS. The primary purpose of these non-IFRS measures is to provide supplemental information that may prove useful to investors who wish to consider the impact of certain non-cash or uncontrollable items on the Company’s operating performance.
EBITDA and Adjusted EBITDA
In calculating EBITDA and adjusted EBITDA certain items (mostly non-cash) are excluded from net income (loss) including interest, taxes, depreciation, amortization, change in fair value of debentures and derivative, stock-based compensation, and goodwill impairment charges. Set forth below are descriptions of the financial items that have been excluded from net income or loss to calculate EBITDA and Adjusted EBITDA and the material limitations associated with using these non-IFRS financial measures as compared to net income or loss.
- | Depreciation and amortization expense may be useful for investors to consider because they generally represent the wear and tear on our property and equipment used in our operations and amortization of intangibles valued in purchase accounting. However, we do not believe these charges necessarily reflect the current and ongoing cash charges related to our operating costs. |
- | The amount of interest expense we incur or interest income we generate may be useful for investors to consider and may result in current cash inflows or outflows. However, we do not consider the amount of interest expense or interest income to be a representative component of the day-to-day operating performance of our business. |
- | Change in fair value of debentures and derivative may be useful for investors to consider as it represents changes in the fair value of debentures, driven by changes in the trading price of the debentures. These changes are non-cash, as the settlement of the underlying debenture will be at the face value. |
- | Provision (benefit) for income taxes may be useful for investors to consider because it generally represents the taxes which may be payable for the period and the change in deferred income taxes and may reduce the amount of funds otherwise available for use. However, we do not consider the amount of income tax expense to be a representative component of the day-to-day operating performance of our business. |
- | Stock-based compensation may be useful for investors to consider because it is an estimate of the non-cash component of compensation received by the Company’s directors, officers, employees, and consultants. However, stock-based compensation is being excluded from the Company’ s operating expenses because the decisions which gave rise to these expenses were not made to increase revenue in a particular period but were made for the Company’ s long-term benefit over multiple periods. While strategic decisions, such as those to issue stock-based awards are made to further the Company’ s long-term strategic objectives and do impact the Company’s earnings under IFRS, these items affect multiple periods and management is not able to change or affect these items within any period. |
Management uses both IFRS and non-IFRS measures when planning, monitoring, and evaluating the Company’s performance.
The following table of adjusted EBITDA show our IFRS measures reconciled to EBITDA (non-IFRS measure) for the indicated periods. The table of net (loss) income is also measured based on IFRS. Both the tables are shown net of discontinued operations. Discontinued operations are comprised of the earnings after tax of discontinued operations until divestiture and the gain or loss after tax on sale, less costs to sell.
Page | 4
|
AMENDED
MANAGEMENT’S DISCUSSION AND ANALYSIS
March 31, 2020 (Tabular dollar amounts expressed in thousands of Canadian Dollars) |
Three months ended
March 31, 2020 |
Three months ended
March 31, 2019 |
Six months ended
March 31, 2020 |
Six months ended
March 31, 2019 |
|||||||||||||
Net income (loss) from continuing operations | $ | 2,820 | $ | (591 | ) | $ | (1,687 | ) | $ | (1,509 | ) | |||||
Add back: | ||||||||||||||||
Depreciation and amortization | 4,553 | 3,004 | 9,261 | 6,322 | ||||||||||||
Interest expense, net | 620 | 764 | 1,224 | 1,161 | ||||||||||||
Change in fair value of debentures and derivative | (2,549 | ) | 96 | (1,819 | ) | 28 | ||||||||||
Provision for income taxes | 44 | 163 | 44 | 105 | ||||||||||||
EBITDA | 5,488 | 3,436 | 7,023 | 6,107 | ||||||||||||
Impairment of goodwill | - | - | - | 531 | ||||||||||||
Stock-based compensation | 92 | 361 | 134 | 891 | ||||||||||||
Adjusted EBITDA | $ | 5,580 | $ | 3,797 | $ | 7,157 | $ | 7,529 |
Three months ended
March 31, 2020 |
Three months ended
March 31, 2019 |
Six months ended
March 31, 2020 |
Six months ended
March 31, 2019 |
|||||||||||||
Revenues | $ | 24,028 | $ | 20,824 | $ | 45,874 | $ | 41,333 | ||||||||
Inventory Sold | 6,408 | 5,839 | 12,480 | 11,851 | ||||||||||||
Operating expenses | 12,106 | 11,023 | 26,523 | 21,784 | ||||||||||||
Depreciation | 4,350 | 2,853 | 8,801 | 6,020 | ||||||||||||
Amortization of intangible assets | 203 | 151 | 406 | 302 | ||||||||||||
Stock-based compensation | 92 | 361 | 134 | 891 | ||||||||||||
Impairment of goodwill | - | - | - | 531 | ||||||||||||
Gain on disposals of property and equipment | (11 | ) | - | (91 | ) | (2 | ) | |||||||||
Other expense (income) | (55 | ) | 165 | (200 | ) | 171 | ||||||||||
Interest expense, net | 620 | 764 | 1,224 | 1,161 | ||||||||||||
Change in fair value of debentures and derivative | (2,549 | ) | 96 | (1,819 | ) | 28 | ||||||||||
Provision for income taxes | 44 | 163 | 44 | 105 | ||||||||||||
Net income (loss) from continuing operations | 2,820 | (591 | ) | (1,687 | ) | (1,509 | ) | |||||||||
Income from discontinued operations | - | 61 | (1,158 | ) | 582 | |||||||||||
Net income (loss) | $ | 2,820 | $ | (530 | ) | $ | (2,845 | ) | $ | (927 | ) | |||||
Income (loss) per share | ||||||||||||||||
Basic | $ | 0.03 | $ | (0.01 | ) | $ | (0.03 | ) | $ | (0.01 | ) | |||||
Diluted | $ | 0.03 | $ | (0.01 | ) | $ | (0.03 | ) | $ | (0.01 | ) |
Revenue
For the three months ended March 31, 2020, revenue totaled $24,028,000, an increase of $3,204,000, or 15%, from the same period in 2019. This increase is primarily due to the acquisitions of two businesses in the first quarter of fiscal year 2020. Organic growth and the higher Canadian dollar to US dollar exchange rate also contributed to the increase
For the six months ended March 31, 2020, revenue totaled $45,874,000, an increase of $4,541,000, or 11%, from the same period in 2019. This increase is primarily due to the acquisitions of two businesses in the first quarter of fiscal year 2020, with organic growth also contributing.
Operating Expenses
For the three months ended March 31, 2020, total selling, general and administrative expenses were $12,106,000, an increase of $1,083,000 from the same period in 2019. The increase was primarily due to approximately $1,800,000 from the acquisitions of two businesses in the first quarter of 2020. Small increases in bad debt expense and a higher Canadian dollar to US dollar exchange rate were partially offset by lower facility costs due to the adoption of IFRS 16, Leases (see Note 2 to the condensed consolidated interim financial statements).
Page | 5
|
AMENDED
MANAGEMENT’S DISCUSSION AND ANALYSIS
March 31, 2020 (Tabular dollar amounts expressed in thousands of Canadian Dollars) |
For the six months ended March 31, 2020, total selling, general and administrative expenses were $26,523,000, an increase of $4,739,000 from the same period in 2019. The increase was primarily due to approximately $3,500,000 from the acquisitions of two businesses in the first quarter of 2020. Increases in bad debt expense and payroll were partially offset by lower facility costs due to the adoption of IFRS 16, Leases (see Note 2 to the condensed consolidated interim financial statements).
Depreciation expense
Depreciation expense increased by $1,497,000 to $4,350,000 for the three months ended March 31, 2020. Approximately $600,000 was due to the acquisitions of two businesses in the first quarter of 2020, and approximately $500,000 was due to the adoption of IFRS 16, Leases (see Note 2 to the condensed consolidated interim financial statements). The remaining increase is primarily due to increased depreciation on monitoring equipment.
Depreciation expense increased by $2,781,000 to $8,801,000 for the six months ended March 31, 2020. Approximately $1,000,000 was due to the two acquisitions of two businesses in the first quarter of 2020 and approximately $900,000 was due to the adoption of IFRS 16, Leases (see Note 2 to the condensed consolidated interim financial statements). The remaining increase is due to increased depreciation on monitoring equipment.
Stock-based compensation
For the three and six months ended March 31, 2020, stock-based compensation was $92,000 and $134,000, respectively, compared to $361,000 and $891,000 in the respective periods of the prior year. The decline is due to options becoming fully vested during the year ended September 30, 2019.
Interest expense
Interest expense was $620,000 in the three months ended March 31, 2020, a $144,000 decrease from $764,000 for the three months ended March 31, 2019, as a result of no accretion expense in the three months ended March 31, 2020, partially offset by higher interest from the adoption of IFRS 16, Leases, and the higher principal amount and interest rate on the new debenture. The Company paid off the unsecured debentures of $8.625 million bearing an interest rate of 7.5% in early May 2019. The Company issued new debentures on March 7, 2019 for $15,000,000, bearing an interest rate of 8.0%.
Interest expense was $1,224,000 in the six months ended March 31, 2020, a $63,000 increase from $1,161,000 for the six months ended March 31, 2019, as a result of higher interest from the adoption of IFRS 16, Leases, and the higher principal amount and interest rate on the new debenture. The Company paid off the unsecured debentures of $8.625 million bearing an interest rate of 7.5% in early May 2019. The Company issued new debentures on March 7, 2019 for $15,000,000, bearing an interest rate of 8.0%. This was partially offset by having no accretion expense in the six months ended March 31, 2020.
Change in fair value of debentures and derivative
For the three and six months ended March 31, 2020, the change in fair value of debentures and derivative was a gain of $2,549,000 and $1,814,000, respectively, and was due to the decrease in the trading price of the debenture. For the three and six months ended March 31, 2019, the change in fair value of debentures and derivative was a small loss as the result of changes in the fair value of outstanding warrants.
FINANCIAL POSITION
As at | As at | |||||||
March 31, 2020 | September 30, 2019 | |||||||
Cash | $ | 6,210 | $ | 12,855 | ||||
Accounts receivable | 13,150 | 12,390 | ||||||
Inventory | 7,769 | 4,738 | ||||||
Other current assets | 1,089 | 800 | ||||||
Total current assets | 28,218 | 30,783 | ||||||
Property and equipment | 27,546 | 19,496 | ||||||
Intangible and other assets | 7,442 | 4,886 | ||||||
Total assets | $ | 63,206 | $ | 55,165 | ||||
Total current liabilities, including current portion of lease liabilities | $ | 27,800 | $ | 21,081 | ||||
Long-term debt and other long-term liabilities | 18,814 | 16,839 | ||||||
Total liabilities | 46,614 | 37,920 | ||||||
Total shareholders’ equity | 16,592 | 17,425 | ||||||
Total liabilities and shareholders’ equity | $ | 63,206 | $ | 55,165 |
Page | 6
|
AMENDED
MANAGEMENT’S DISCUSSION AND ANALYSIS
March 31, 2020 (Tabular dollar amounts expressed in thousands of Canadian Dollars) |
Liquidity
At March 31, 2020, the Company had cash on hand of $6,210,000. The Company’s approach in managing liquidity is to ensure, to the extent possible, that it will have enough liquidity to meet its liabilities as they come due by continuously monitoring actual and expected cash flows and monitoring financial market conditions for signs of weakness.
As of March 31, 2020, the Company faces no material liquidity risk and can meet all its current financial obligations as they become due and payable. The Company has $27,800,000 liabilities that are due within one year but has $28,218,000 of current assets to meet those obligations.
Subsequent to quarter end, in April 2020, the Company received over $7.5 million of payments related to the two separate provisions of the U.S. Coronavirus Aid, Relief and Economic Security (CARES) Act. One provision was to assist companies in maintaining their workforce and the second provision was to support healthcare providers.
Capital management
The Company’s shareholders’ equity totaled $16,592,000 at March 31, 2020 and had debentures with a face amount of $15,000,000. Additionally, the Company had lease liabilities with a principal amount of $17,329,000.
The Company plans to raise capital, as necessary, to meet its needs and take advantage of perceived opportunities and, therefore, does not have a numeric target for its capital structure. Funds are primarily secured through debt instruments, equity capital raised by way of private placements and convertible notes. There can be no assurance that the Company will be able to continue raising capital in this manner.
Management reviews its capital management approach on an ongoing basis and believes that this approach, given the relative size of the Company, is reasonable.
The Company invests all capital that is surplus to its immediate operational needs in short-term, liquid and highly rated financial instruments, such as cash and short-term guarantee deposits, held with major Canadian and US financial institutions.
The Company had the following equity instruments outstanding at March 31, 2020 and March 31, 2019:
As at | As at | |||||||
March 31, 2020 | September 30, 2019 | |||||||
(000’s) | (000’s) | |||||||
Common shares | 83,685 | 83,589 | ||||||
Underwriter Options | 367 | 367 | ||||||
Warrants | 519 | 519 | ||||||
Options – employees and consultants | 11,220 | 11,759 |
Financing
Historically and currently, the Company has financed its operations primarily from cash flow from operations, leases liabilities, debentures, equity financing, and through the issuance of shares to acquire businesses. On March 7, 2019, the Company issued $15,000,000 in 8.0% Convertible Unsecured Debentures due March 7, 2024, with interest payable semi-annually on June 30th and December 30th of each year. Each $1,000 debenture is convertible at the option of the holder into approximately 769.23 common shares. After three years, the Company can force conversion of the outstanding principal at conversion price of $1.30, if the daily volume weighted average price of the common shares exceeds $1.62/share for twenty consecutive trading days. The debenture agreement also allows for payment of cash in lieu of common shares upon exercise of conversion right by the holder, equivalent of the market price on the conversion date.
The above debenture contains multiple embedded derivatives including conversion right, forced conversion option and payment in lieu of common shares. The Company elected to value the convertible debentures in their entirety (including conversion right, forced conversion option and payment in lieu of common shares) to be subsequently measured at fair value through profit or loss (FVTPL). The fair value of the debenture as at March 31, 2020 was $12,147,000.
Commitments and Contingencies
From time to time, the Company is involved in various legal proceedings arising from the ordinary course of business, none of the matters in which the Company is currently involved, either individually, or in the aggregate, is expected to have a material adverse effect on the Company’s consolidated financial position, results of operations, or cash flows.
Page | 7
|
AMENDED
MANAGEMENT’S DISCUSSION AND ANALYSIS
March 31, 2020 (Tabular dollar amounts expressed in thousands of Canadian Dollars) |
Quarterly Operating Results from continuing operations
A summary of quarterly results for the eight most recently completed quarters are as follows:
Quarter ended
March 31, 2020 |
Quarter ended
December 31, 2019 |
Quarter ended
September 30, 2019 |
Quarter ended
June 30, 2019 |
|||||||||||||
Revenue | $ | 24,028 | $ | 21,846 | $ | 19,470 | $ | 20,164 | ||||||||
Net income (loss) from continuing operations | 2,820 | (4,507 | ) | 4,400 | (12,564 | ) | ||||||||||
Net income (loss) per share – continuing operations | $ | 0.03 | $ | (0.06 | ) | $ | 0.05 | $ | (0.15 | ) |
Quarter ended
March 31, 2019 |
Quarter ended
December 31, 2018 |
Quarter ended
September 30, 2018 |
Quarter ended
June 30, 2018 |
|||||||||||||
Revenue | $ | 20,824 | $ | 20,509 | $ | 18,041 | $ | 18,468 | ||||||||
Net income (loss) from continuing operations | (591 | ) | (917 | ) | 679 | (1,590 | ) | |||||||||
Net income (loss) per share – continuing operations | $ | (0.01 | ) | $ | (0.01 | ) | $ | 0.01 | $ | (0.02 | ) |
Results of operations for the healthcare services market in which the Company operates show little seasonality from quarter to quarter.
Related party transactions
The Company has entered into six market rate leases for office, warehouse, and retail space with a rental Company affiliated with the Company’s Chief Executive Officer, the majority of which were entered into in 2015. The leases have a combined area of 74,520 square feet. Lease payments under these leases are approximately $68,000 per month, plus taxes, utilities and maintenance.
Payments of approximately $57,000 and $56,000 were made to members of the Board of Directors for three months ended March 31, 2020 and 2019, respectively. Payments of $112,000 and $108,000 were made to the board for the six months ended March 31, 2020 and 2019, respectively.
Key management personnel also participate in the Company’s share option program. The Company paid or accrued compensation to key management personnel the following:
Three
months ended March 31, 2020 |
Three
months ended March 31, 2019 |
Six months
ended March 31, 2020 |
Six months
ended March 31, 2019 |
|||||||||||||
Salaries and Benefits | $ | 264 | $ | 766 | $ | 523 | $ | 1,009 | ||||||||
Stock-based compensation | - | 229 | - | 562 | ||||||||||||
Total | $ | 264 | $ | 995 | $ | 523 | $ | 1,571 |
Off balance sheet arrangements
The Company has no material undisclosed off-balance sheet arrangements that have or are reasonably likely to have, a current or future effect on its results of operations or financial condition.
ACCOUNTING AND DISCLOSURE MATTERS
Financial reporting controls
The Company is not required to certify the design and evaluation of its disclosure controls and procedures and internal controls over financial reporting and has not completed such an evaluation.
There were no substantive changes in the Company’s disclosure controls and procedures and internal controls over financial reporting during the period ended March 31, 2020 that have materially affected, or are reasonably likely to materially affect, the Company’ s disclosure controls and procedures and internal controls over financial reporting.
Page | 8
|
AMENDED
MANAGEMENT’S DISCUSSION AND ANALYSIS
March 31, 2020 (Tabular dollar amounts expressed in thousands of Canadian Dollars) |
Critical accounting estimates
The preparation of financial statements in conformity with IFRS requires management to make estimates and assumptions that affect the reported amounts of assets, liabilities, revenues and expenses and the disclosure of contingent assets and liabilities in the consolidated financial statements. We constantly evaluate these estimates and assumptions.
We base our estimates and assumptions on experience and other factors that are deemed reasonable under the circumstances. This involves varying degrees of judgment and uncertainty, thus the amounts currently reported in the consolidated financial statements could prove to be inaccurate in the future.
We consider the estimates and assumptions described in this section to be an important part in understanding the consolidated financial statements. These estimates and assumptions are subject to change, as they rely heavily on management’ s judgment and are based on factors that are inherently uncertain.
Revenue recognition
Revenue consists of net patient service revenue. Net patient service revenue is recognized at the time services are provided net of contractual adjustments based on an evaluation of expected collections resulting from the analysis of current and past due accounts, past collection experience in relation to amounts billed and other relevant information. Contractual adjustments result from the differences between the rates charged for services and reimbursements by government-sponsored healthcare programs and insurance companies for such services.
Accounts receivable
Accounts receivable are recorded at the time revenue is recognized and are presented on the balance sheet net of an allowance for uncollectible accounts. It is possible that our estimates of the allowance for uncollectible accounts could change, which could have a material impact on our operations and cash flows.
The Company will write-off receivables when the likelihood for collection is remote or and when the Company believes collection efforts have been fully exhausted and it does not intend to devote additional resources in attempting to collect.
Share Consolidation and New Stock Symbol
On December 31, 2018, the Company consolidated its common shares on the basis of one (1) new post-consolidation common share for every five (5) pre-consolidation common shares. The Consolidation affected shareholders uniformly, including holders of outstanding incentive stock options and warrants. Unless stated otherwise, all share and per share amounts have been restated retrospectively to reflect this share consolidation. The company began trading under the TSX Venture Exchange under the stock ticker symbol “PTQ” as of December 31, 2018.
Stock-based compensation
The Company accounts for stock-based compensation, including stock options and warrants, using the fair value method as prescribed by IFRS 2. Under this method, the fair value of stock options and warrants at the date of grant is amortized over the vesting period and the offsetting credit is recorded as an increase in contributed surplus. The Company accounts for forfeitures as they happen. For the three months ended March 31, 2020 and 2019, the Company recorded stock-based compensation expense of $92,000 and $361,000, respectively. For the six months ended March 31, 2020 and 2019, the Company recorded stock-based compensation expense of $134,000 and $891,000, respectively.
The fair value of the vested stock options has been charged to the statement of income (loss) and comprehensive income (loss) and credited to contributed surplus over the proper vesting period. Fair value for the options granted periods ended March 31, 2019 and 2017, used the Black-Scholes option pricing model calculated using the following assumptions:
For the six months ended
March 31, 2020 |
For the six months ended
March 31, 2019 |
|||||||
Share price | $ | 1.10 | $ | 0.63 | ||||
Risk-free interest rate | 1.64 | % | 2.24 | % | ||||
Expected volatility | 83.20 | % | 118.17 | % | ||||
Expected life of option | 4 years | 10 years | ||||||
Expected dividend yield | Nil | Nil |
Income taxes
The Company is subject to income taxes in numerous jurisdictions. Significant judgment is required in determining the provision for income taxes and the Company’s income tax provisions reflect management’s interpretation of country-specific tax law. There are many transactions and calculations for which the ultimate tax determination is uncertain during the ordinary course of business and may remain uncertain for several years after their occurrence. The Company recognizes assets and liabilities for taxation when it is probable that the relevant taxation authority will require the Company to receive or pay taxes.
Page | 9
|
AMENDED
MANAGEMENT’S DISCUSSION AND ANALYSIS
March 31, 2020 (Tabular dollar amounts expressed in thousands of Canadian Dollars) |
Where the outcome of the determination of tax assets and liabilities is different from the amounts that were initially recorded, such differences will impact the current and deferred income taxes provision in the period in which such determination is made. Changes in tax law or changes in the way tax law is interpreted may also impact the Company’s effective tax rate as well as its business and operations.
Deferred income tax assets and liabilities are recognized for the future income tax consequences attributable to temporary differences between the financial statement carrying value of assets and liabilities and their respective income tax bases. Deferred income tax assets or liabilities are measured using enacted or substantively enacted income tax rates expected to apply to taxable income in the years in which those temporary differences are expected to be recovered or settled.
The calculation of current and deferred income taxes requires management to make estimates and assumptions and to exercise a certain amount of judgment concerning the carrying value of assets and liabilities. The current and deferred income tax assets and liabilities are also impacted by expectations about future operating results and the timing of reversal of temporary differences as well as possible audits of tax filings by regulatory agencies. Changes or differences in these estimates or assumptions may result in changes to the current and deferred tax assets and liabilities on the consolidated statements of financial position and a charge to or recovery of income tax expense.
Acquisition accounting
Accounting for business combinations requires the allocation of the Company’s purchase price to the various assets and liabilities of the acquired business at their respective fair values. The Company uses all available information to make these fair value determinations. In some instances, assumptions with respect to the timing and amount of future revenues and expenses associated with an asset or group of assets may be used to determine fair value. Actual timing and amount of net cash flows from revenues and expenses related to that asset over time may differ materially from those initial estimates, and if the timing is delayed significantly or if the net cash flows decline significantly, the asset could become impaired.
Discontinued operations
An operation is qualified as discontinued when it represents a separate major line of business and has been sold, or when the criteria for classification as an asset held for distribution have been met.
Discontinued operations are presented on the statement of income (loss) and comprehensive income (loss) for the periods reported, comprising the earnings after tax of discontinued operations until divestiture and the gain or loss after tax on sale or fair value measurement, less costs to sell.
Significant accounting judgments
The following are the critical judgments, apart from those involving estimations, that have been made in the process of applying the Company’s accounting policies and that have the most significant effect on the amounts recognized in the consolidated financial statements.
Functional currency
Management has exercised judgment in selecting the functional currency of each of the entities that it consolidates based on the primary economic environment in which the entity operates and in reference to the various indicators including the currency that primarily influences or determines the selling prices of goods and services and the cost of production, including labor, material and other costs and the currency whose competitive forces and regulations mainly determine selling prices. The consolidated financial statements of the Company are presented in Canadian dollars, which is the parent company’s presentation currency, but which differs from its functional currency, the US dollar, which was determined using managements assumption that the primary economic environment from which it will derive its revenues and the expenses incurred to generate those revenues is the US.
Segment reporting
Management has assessed the information that is provided to the chief operating decision maker and how the business is monitored and has exercised judgment in determining that there is only one operating segment.
Page | 10
|
AMENDED
MANAGEMENT’S DISCUSSION AND ANALYSIS
March 31, 2020 (Tabular dollar amounts expressed in thousands of Canadian Dollars) |
Asset impairment and cash generating units
For purposes of the asset impairment testing, the Company identifies cash generating units as the smallest identifiable groups of assets that generate independent cash inflows. Impairment testing is performed on these groups of assets on an annual basis or when events or circumstances indicate that the cash generating unit may become impaired considering the assessed and projected recoverable values of the cash generating unit. The Company has elected to perform the annual impairment testing in the fourth quarters.
Valuation of derivative instruments
Management has exercised judgment in the determination of the fair value of the derivative instruments. Estimating fair value for the derivatives requires determining the most appropriate valuation model, which is dependent on the terms and conditions of the instrument. This estimate also requires the judgment in the determination of the most appropriate inputs to the valuation model including the expected life of the option or warrant, volatility and dividend yield and making assumptions about them.
Recognition of leases
Management has exercised judgment in the determination of whether a contract to rent equipment represents a financing lease. Using historical returns and other operational data management has determined that in cases where the Company is the lessor, no rental agreements represent financing leases.
Goodwill impairment
Management has evaluated the recoverable amount of cash generating units and applied judgment in the discount rate and other underlying assumptions used in impairment analysis of goodwill.
Business Acquisitions
On October 31, 2018, the Company, through one of its indirect wholly owned subsidiaries, entered into a purchase agreement to acquire 100% of the shares of Central Oxygen Inc., an Indiana company. Total consideration was $395,000 in cash and stock.
On October 31, 2018, the Company, through one of its indirect wholly owned subsidiaries, entered into a purchase agreement to acquire 100% of the shares of Riverside Medical Inc., a Tennessee company. Total consideration was $131,000 in cash.
Effective October 1, 2019, the Company, through one of its indirect wholly owned subsidiaries, entered into a purchase agreement to acquire 100% of the shares of Cooley Medical Equipment, Inc., a Kentucky company, Total consideration was $3,617,000, of which $3,089,000 was paid in cash at closing, and the balance of $528,000 to be paid on the 18-month anniversary of the acquisition discounted at 3.86%.
Effective December 1, 2019, the Company, through one of its indirect wholly owned subsidiaries, entered into a purchase agreement to acquire 100% of the shares of Acadia Medical Supply, Inc., a Maine company. Total consideration was $1,961,000, of which $1,334,000 was paid in cash at closing, and the balance of $627,000 to be paid on the one-and two-year anniversaries of the acquisition discounted at 3.86%.
FINANCIAL INSTRUMENTS AND RISK MANAGEMENT
Financial instrument risk exposure
The Company’ s activities expose it to a variety of financial risks: market risk (including price risk, currency risk and interest rate risk), credit risk and liquidity risk. These risks arise from the normal course of operations and all transactions are undertaken to support the Company’ s ability to continue as a going concern. Risk management is carried out by management under policies approved by the Board of Directors. Management identifies and evaluates the financial risks in co-operation with the Company’s operating units. The Company’s overall risk management program seeks to minimize potential adverse effects on the Company’s financial performance.
Credit risk
Credit risk is the risk that one party to a financial instrument will fail to discharge an obligation and cause the other party to incur a financial loss. Financial instruments that potentially subject the Company to credit risk are primarily cash and accounts receivable. Each subsidiary places its cash with one major financial institution. At times, the cash in the financial institution is temporarily in excess of the amount insured by the Federal Deposit Insurance Corporation. Substantially all accounts receivable are due under fee-for-service contracts from third party payors, such as insurance companies and government-sponsored healthcare programs, directly from patients or for rebates due from manufacturers. Receivables generally are collected within industry norms for third-party payors and from manufacturers. The Company continuously monitors collections from its clients and maintains an allowance for bad debts based upon any specific payor collection issues that are identified and historical experience.
Page | 11
|
AMENDED
MANAGEMENT’S DISCUSSION AND ANALYSIS
March 31, 2020 (Tabular dollar amounts expressed in thousands of Canadian Dollars) |
The Company recorded bad debt expense of $978,000 and $1,549,000 for three months ended March 31, 2020 and 2019, respectively. As of March 31, 2020, no one customer represented more than 10% of outstanding accounts receivable.
Currency risk
Currency risk is the risk that the Company will be subject to foreign currency fluctuations in satisfying obligations related to its foreign activities.
The Company realizes virtually all of its sales and makes a significant amount of its purchases in US dollars. Consequently, assets and liabilities are exposed to foreign exchange fluctuations.
The Company monitors and forecasts the values of net foreign currency cash flow and statement of financial position exposures and from time to time could authorize the use of derivative financial instruments such as forward foreign exchange contracts to economically hedge a portion of foreign currency fluctuations.
Based on the above net exposure at March 31, 2020, a 10% depreciation or appreciation of the US dollar against the Canadian dollar would not result in a significant effect in net loss. The Company has not employed any currency hedging programs during the periods ended March 31, 2020 or 2019.
Liquidity risk
Liquidity risk is the risk that the Company will not be able to meet its financial obligations as they become due. The Company’s approach in managing liquidity is to ensure, to the extent possible, that it will have sufficient liquidity to meet its liabilities when due, under both normal conditions, by continuously monitoring actual and budgeted cash flows.
As of March 31, 2020, the Company faces no material liquidity risk and can meet all its current financial obligations as they become due and payable. The Company has $27,800,000 of liabilities that are due within one year. The Company has $28,218,000 of current assets to meet those obligations.
Interest rate risk
Interest rate risk is the risk that the future cash flows of a financial instrument will fluctuate because of changes in market interest rates. Interest rate risk is limited to potential decreases on the interest rate offered on cash and cash equivalents held with Chartered Canadian and registered US financial institutions. The Company considers this risk to be immaterial. The interest on the convertible notes is not subject to cash flow interest rate risk as these instruments bear interest at fixed rates.
RISK FACTORS
While it is impossible to identify all such risk factors, factors that could cause actual results to differ materially from those estimated by us include:
Market Price of the Company Shares
The Company Shares are listed and posted for trading on the TSX Venture Exchange. Securities of small-cap and healthcare companies have experienced substantial volatility in the past, often based on factors unrelated to the financial performance or prospects of the companies involved. These factors include macroeconomic developments in North America and globally, and market perceptions of the attractiveness of particular industries. The price of the Company Shares is also likely to be significantly affected by short-term changes in cost of goods, or in financial condition or results of operations. Other factors unrelated to the performance of the Company that may have an effect on the price of the Company Shares include the following: the extent of analytical coverage available to investors concerning the business of the Company may be limited if investment banks with research capabilities do not follow the Company securities; lessening in trading volume and general market interest in the Company’s securities may affect an investor’s ability to trade significant numbers of the Company Shares; the size of the Company’s public float may limit the ability of some institutions to invest in the Company’s securities; and a substantial decline in the price of the Company Shares that persists for a significant period of time could cause the Company’s securities, if listed on an exchange, to be delisted from such exchange, further reducing market liquidity.
As a result of any of these factors, the market price of the Company Shares at any given point in time may not accurately reflect the long-term value of the Company. Securities class-action litigation often has been brought against companies following periods of volatility in the market price of their securities. The Company may in the future be the target of similar litigation. Securities litigation could result in substantial costs and damages and divert management’s attention and resources.
Page | 12
|
AMENDED
MANAGEMENT’S DISCUSSION AND ANALYSIS
March 31, 2020 (Tabular dollar amounts expressed in thousands of Canadian Dollars) |
Dilution
The Company will require additional funds in respect of the further development of the company through acquisition. If the Company raises funds by issuing additional equity securities, such financing will dilute the equity interests of its shareholders.
Future Sales of Shares by Existing Shareholders
Sales of the Company Shares in the public markets, or the potential for such sales, could decrease the trading price of the Company Shares and could impair The Company’s ability to raise capital through future sales of the Company Shares. The Company may from time to time have previously issued securities at an effective price per share which will be lower than the market price of the Company Shares. Accordingly, certain shareholders of The Company may have an investment profit in the Company Shares that they may seek to liquidate.
Limited History of Operations
The Company has a limited history of operations. There can be no assurance that the business of the Company and/or its subsidiaries will be successful and generate, or maintain, any profit.
Novel Business Model
Home monitoring of patients on anticoagulants is a relatively new business, making it difficult to predict market acceptance, development, expansion, and direction. The home monitoring services to be provided by the Company represent a relatively new development in the U.S. healthcare industry. Accordingly, adoption by patients and physicians can require education, which can result in a lengthy sales cycle. The market may take time to develop. Physicians and/or patients may be slow to adopt new methods. The development of the Company’s home monitoring business will depend on many factors. These factors include: The Company’s ability to differentiate its services from those of its competitors; the extent and timing of the acceptance of the Company’s services as a replacement for, or supplement to, traditional methods of monitoring patients; the effectiveness of the Company’s sales and marketing and engagement efforts with customers and their health plan participants; the Company’s ability to provide quality customer service, as perceived by patients and physicians.
Because the monitoring business is evolving, the Company may not be able to anticipate and adapt to the developing market. Moreover, management cannot predict with certainty the future growth rate or the ultimate size of the market.
Reimbursement Rates May Decline
Reimbursement for services to be provided by the Company will come primarily from Medicare and private health insurance companies. The reimbursement rates offered are outside the control of the Company. Reimbursement rates in this area, and much of the U.S. health care market in general, have been subject to continual reductions as health insurers and governmental entities attempt to control health care costs. The extent and timing of any reduction in reimbursement rates cannot be predicted by the Company.
Reductions in reimbursement rates can have a material impact on the profitability of the Company’s operations. A reduction in reimbursement may be unrelated to any concurrent decline in the cost of operations, thereby resulting in reduced profitability. The Company’s costs of operations could increase, but the cost increases may not be passed on to customers because reimbursement rates are set without regard to the cost of service.
Dependence Upon Relationships with Key Suppliers
There are few manufacturers of equipment which can be used for home monitoring of patients on anticoagulants. There is the possibility that a new meter will encounter difficulties or “bugs” when first sent to market, and that initial technical support costs may be higher than for more well-established meters. Even if the Company switches to other competing meters, they may also encounter technical difficulties or regulatory issues. The emerging nature of the market presents risks that suppliers may not be able to provide equipment to satisfy demand. Demand may outstrip supply, leading to equipment shortages. Conversely, incorrect demand forecasting could lead to excess inventory. If the Company fails to achieve certain volume of sales, prices of meters may increase. The industry is subject to a high level of regulatory scrutiny, and government or manufacturer recalls could adversely affect the Company’s ability to provide monitoring services and achieve revenue targets.
Inadequate supply could impair the Company’s ability to attract new business and could create upward pricing pressure on equipment and supplies, adversely affecting margins for The Company. Additionally, the market for financing home testing meters and other supplies needed by the Company is limited. Several equipment manufacturers are pursuing a strategy of vertical integration, and should the Company ever need to order equipment from those manufacturers, such equipment may not be available on favorable terms.
Page | 13
|
AMENDED
MANAGEMENT’S DISCUSSION AND ANALYSIS
March 31, 2020 (Tabular dollar amounts expressed in thousands of Canadian Dollars) |
Reliance Upon Few Payers
The Company will earn revenues by seeking reimbursement from Medicare and private health insurance companies, with the Medicare program of the US government being the primary entity making payments. If the Medicare program were to slow payments of receivables for any reason, the Company would be adversely impacted. In addition, both governmental and private health insurance companies may seek ways to avoid or delay reimbursement, which could adversely affect cash flow and revenues for the Company.
Government Regulation
Some operations of the Company will require certain licenses and permits from the authorities in the United States. The ability of the Company and its subsidiaries to obtain, sustain or renew any such licenses and permits on acceptable terms is subject to changes in regulations and policies and to the discretion of the applicable authorities or other governmental agencies. The ability of the Company to collect certain revenues in the future will depend on the Company receiving approval of an independent diagnostic testing facility and entering into an agreement with Medicare. There is no guarantee that the Company will meet these conditions. The Company will be subject to regulation from United States federal and state authorities. Regulatory action could disrupt its ability to provide services. Such regulatory action could come in the form of actions against manufacturers, unrelated to the Company’s conduct, or actions based upon the Company’s operation. Regulatory action could prevent or delay reimbursement for certain services.
There could also be legislative action that could adversely affect the Company’s business model, including, without limitation: a decision by the United States government to become the exclusive provider of health care services at some time in the future; changes in United States federal or state laws, rules, and regulations, including those governing the corporate practice of medicine, and fee splitting; and changes in the United States Anti-Kickback Statute and Stark Law and/or similar state laws, rules, and regulations. Conversely, budgetary problems in the United States could lead to reduced funding, substantial modification, or elimination of Medicare programs, which would end reimbursement for many patients. There can be no assurance that new rules and regulations will not be enacted or that existing rules and regulations will not be applied in a manner which could limit or curtail the business of the Company. Amendments to current laws and regulations could have a substantial adverse impact on the Company.
CMS (Centers for Medicare & Medicaid Services) policies of health insurance for Medicare in the United States may affect the amount of revenue the Company receives. The Company will continue to be subject to risk that reimbursement rates for its services from both federal and private payers will decline over time. Reimbursement from federal programs is subject to constant regulatory review and increasing audits by federal authorities, the effect of which may be to increase costs of service and delay or affect reimbursement, which could negatively impact cash flow and/or revenue. Audits may be costly and time consuming, and could delay cash flow, even if the Company acted properly in all respects. The policies of health insurance carriers in the United States may affect the amount of revenue the Company receives.
Highly Competitive Market
The Company will participate in a highly competitive market, which may become more competitive as new players enter. Certain competitors will be subsidiaries or divisions of larger, much better capitalized companies. Certain competitors will have vertically integrated manufacturing and services sectors of the market. The Company may have less capital and may encounter greater operational challenges in serving the market. Better capitalized competitors may also be expected to borrow money or raise debt to purchase equipment more easily than the Company.
Low profit market segments
Where the Company provides services to a patient who does not use a meter often or for an extended period of time, profitability may be unlikely in respect of that patient. Also, certain patients may have a personal preference to travel to a lab for testing rather than self-testing. In these cases, the Company may not have a meter with the patient long enough to recoup costs. Where the Company owns the meter, the failure of the patient to return the meter to the Company may impact profitability. Legal costs of bringing an action to obtain return of a meter may exceed the value of the machine, leading to losses with certain patient populations even under favorable reimbursement environments.
Foreign Subsidiaries
The Company plans to conduct all its operations through respective United States subsidiaries. Therefore, to the extent of these holdings, the Company (directly and indirectly) will be dependent on the cash flows of these subsidiaries to meet its obligations. The ability of such subsidiaries to make payments to their parent companies may be constrained by the following factors: the level of taxation, particularly corporate profits and withholding taxes, in the jurisdiction in which each subsidiary operates; and the introduction of exchange controls or repatriation restrictions or the availability of hard currency to be repatriated.
Page | 14
|
AMENDED
MANAGEMENT’S DISCUSSION AND ANALYSIS
March 31, 2020 (Tabular dollar amounts expressed in thousands of Canadian Dollars) |
Attraction and Retention of Key Personnel Including Directors
The Company will have a small management team and the loss of a key individual or inability to attract suitably qualified staff could have a material adverse impact on the business of The Company. The Company may also encounter difficulties in obtaining and maintaining suitably qualified staff. The success of The Company depends on the ability of management to interpret market data correctly and to interpret and respond to economic, market and other conditions to locate and adopt appropriate opportunities. No assurance can be given that individuals with the required skills will continue employment with The Company or that replacement personnel with comparable skills can be found. The Company will be dependent on the services of key executives, including the directors of The Company and a small number of highly skilled and experienced executives and personnel. Due to the relatively small size of The Company, the loss of these persons or The Company’s inability to attract and retain additional highly skilled employees may adversely affect its business and future operations.
Dividends
The Company currently intends to retain future earnings to finance the operation, development, and expansion of its business. The Company does not anticipate paying cash dividends on the Company Shares in the foreseeable future. Payment of future cash dividends, if any, will be at the discretion of the Company Board and will depend on the Company’s financial condition, results of operations, contractual restrictions, capital requirements, business prospects and other factors that the Company Board may consider relevant. Accordingly, investors will only see a return on their investment if the value of the Company Shares appreciates.
Discretion in the Use of Available Funds
Management will have broad discretion concerning the use of the available funds of the Company as well as the timing of their expenditures. As a result, shareholders and investors will be relying on the judgment of management of the Company on completion of the Arrangement for the application of the available funds of the Company (see “Available Funds and Principal Purposes” above). Management may use the available funds in ways that an investor may not consider desirable. The results and the effectiveness of the application of the available funds are uncertain. If the available funds are not applied effectively, the Company’s results of operations may suffer.
Potential Conflicts of Interest
Some of the proposed directors and officers of the Company are engaged and will continue to be engaged as directors and officers of other companies in the search for additional business opportunities on behalf of such other corporations, and situations may arise where these directors and officers will be in direct competition with the Company. Some of the proposed directors and officers of the Company are or may become directors or officers of other companies engaged in other business ventures.
Conflicts of interest, if any, which arise may be subject to and be governed by procedures prescribed by the Business Corporations Act (British Columbia) which require a director or officer of a corporation who is a party to or is a director or an officer of or has a material interest in any person who is a party to a material contract or proposed material contract with The Company to disclose his interest and to refrain from voting on any matter in respect of such contract unless otherwise permitted under the Business Corporations Act (British Columbia). Any decision made by any of such directors and officers involving the Company should be made in accordance with their duties and obligations to deal fairly and in good faith with a view to the best interests of the Company and its shareholders.
Insurance and Uninsured Risks
The Company’s business will continue to be subject to several risks and hazards generally, including general liability. Such occurrences could result in damage to property, inventory, facilities, personal injury or death, damage to the properties of the Company, or the properties of others, monetary losses, and possible legal liability. The Company may be subject to product liability and medical malpractice claims, which may adversely affect its operations. The Company’s industry is highly regulated, and the Company may be subject to regulatory scrutiny for violations of regulations and laws. The Company could be adversely affected by the time and cost involved with regulatory investigations even if it has operated in compliance with all laws. Investigations could also adversely affect the timely payment of receivables.
Although the Company will maintain insurance to protect against certain risks in such amounts as it considers to be reasonable, its insurance will not cover all the potential risks associated with its operations. The Company may also be unable to maintain insurance to cover these risks at economically feasible premiums. Insurance coverage may not continue to be available or may not be adequate to cover any resulting liability. The Company might also become subject to liability which may not be insured against or which the Company may elect not to insure against because of premium costs or other reasons. Losses from these events may cause the Company to incur significant costs that could have a material adverse effect upon its financial performance and results of operations.
Page | 15
|
AMENDED
MANAGEMENT’S DISCUSSION AND ANALYSIS
March 31, 2020 (Tabular dollar amounts expressed in thousands of Canadian Dollars) |
Additional Capital
The development and the business (including acquisitions) of the Company may require additional financing, which may involve high transaction costs, dilution to shareholders, high interest rates or unfavorable terms and conditions. Failure to obtain sufficient financing may result in the delay or indefinite postponement of its business plans. As the Company will likely be unable to obtain traditional debt financing until it has a profitable and longer operating history, the initial primary source of funding available to the Company will consist of equity financing. There can be no assurance that additional capital or other types of financing will be available if needed or that, if available, the terms of such financing will be favorable to the Company.
Loss of Foreign Private Issuer Status
The Company may lose its foreign private issuer status in the future, which could result in significant additional costs and expenses. As a foreign private issuer, as defined in Rule 3b-4 under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), the Company is currently exempt from certain of the provisions of the U.S. federal securities laws. For example, an issuer with total assets in excess of US$10 million and whose outstanding equity securities are held by 2,000 or more persons, or 500 or more persons who are not “accredited investors”, must register such securities as a class under the Exchange Act. However, as a foreign private issuer subject to Canadian continuous disclosure requirements, the Company may claim the exemption from registration under the Exchange Act provided by Rule threeg3-2(b) thereunder, even if these thresholds are exceeded. To be considered a foreign private issuer, The Company must satisfy a United States shareholder test (not more than 50% of the voting securities of a company must be held by residents of the United States) if any of the following disqualifying conditions apply: (i) the majority of the Company’s executive officers or directors are United States citizens or residents; (ii) more than 50 percent of The Company’s assets are located in the United States; or (iii) The Company’s business is administered principally in the United States. Based on information available as at the date hereof, approximately 26.7% of the Company’s outstanding voting securities are anticipated to be directly or indirectly held of record by residents of the United States. If the Company loses its status as a foreign private issuer, these regulations could apply and it could also be required to commence reporting on forms required of U.S. domestic companies, such as Forms 10-K, 10-Q, and 8-K. It could also become subject to U.S. proxy rules, and certain holders of its equity securities could become subject to the insider reporting and “short swing” profit rules under Section 16 of the Exchange Act. In addition, any securities issued by the Company if it loses foreign private issuer status would become subject to certain rules and restrictions under the Securities Act of 1933, as amended, even if they are issued or resold outside the United States. Compliance with the additional disclosure, compliance and timing requirements under these securities laws would likely result in increased expenses and would require the Company’s management to devote substantial time and resources to comply with new regulatory requirements.
United States Operations and Exchange Rate Fluctuations
All the Company’s revenue generating operations will occur in the United States. The Company will be subject to a number of risks associated with its operations that may increase liability and costs and require significant management attention. These risks include:
• | compliance with laws of the United States that will apply to the Company’s United States operations, including lawful access, privacy laws and anti-corruption laws; |
• | instability in economic or political conditions, including inflation, recession and political uncertainty; |
• | potential adverse tax consequences; and |
• | litigation in United States courts. |
In addition, the Company will be exposed to foreign exchange risk as a result of substantially all its revenue generating operations taking place in the United States and thus, revenues and expenses being earned and paid in United States dollars while the Company reports its financial statements in Canadian dollars. If the Canadian dollar appreciates relative to the United States dollar, the Company’s Canadian dollar expenses and revenues will decrease when translated from United States dollars for financial reporting purposes. Conversely, if the Canadian dollar depreciates relative to the United States dollar, the Company’s Canadian dollar expenses and revenues will increase when translated from United States dollars for financial reporting purposes. In addition, exchange rate fluctuations may affect the costs that The Company incurs in its operations. The appreciation of non-United States dollar currencies against the United States dollar can increase the cost of operations in United States dollar terms. Foreign exchange rate fluctuations may materially affect the Company’s financial condition and results of operations in future periods.
Page | 16
|
AMENDED
MANAGEMENT’S DISCUSSION AND ANALYSIS
March 31, 2020 (Tabular dollar amounts expressed in thousands of Canadian Dollars) |
The Company will continue to translate the assets and liabilities of its United States dollar functional currency subsidiaries into Canadian dollars using exchange rates in effect at the end of each period. Revenue and expenses for these subsidiaries are translated using average exchange rates that approximate those in effect during the period. The Company will continue to maintain cash balances in both United States and Canadian dollars, but management anticipates that it will not purchase any securities or financial instruments to speculate on or hedge against a rise or fall in the value of the United States dollar.
Global Economy
Recent market events and conditions, including disruptions in the international credit markets and other financial systems and the deterioration of global economic conditions, could impede the Company’s access to capital or increase the cost of capital. From 2007 to 2009, the United States credit markets began to experience serious disruption due to deterioration in residential property values, defaults and delinquencies in the residential mortgage market and a decline in the credit quality of mortgage-backed securities. These problems led to a slow-down in residential housing market transactions, declining housing prices, delinquencies in non-mortgage consumer credit and a general decline in consumer confidence. These conditions caused a loss of confidence in the broader United States and global credit and financial markets and resulted in the collapse of, and government intervention in, major banks, financial institutions and insurers and created a climate of greater volatility, less liquidity, widening of credit spreads, a lack of price transparency, increased credit losses and tighter credit conditions which continued throughout 2012 with continued uncertainty in the European marketplace and continued uncertainty surrounding the “fiscal cliff” , the United States government deficit and the United States government spending cuts. Notwithstanding various actions by the United States and foreign governments, concerns about the general condition of the capital markets, financial instruments, banks, investment banks, insurers and other financial institutions caused the broader credit markets to deteriorate and stock markets to fluctuate substantially.
These disruptions in the current credit and financial markets have had a significant material adverse impact on several financial institutions and have limited access to capital and credit for many companies, including junior mining companies. These disruptions could, among other things, make it more difficult for the Company to obtain, or increase its cost of obtaining, capital and financing for its operations. Access to additional capital may not be available to the Company on terms acceptable to it, or at all.
COVID-19 Pandemic
On March 11, 2020, the World Health Organization declared the outbreak of a novel strain of coronavirus (“COVID-19”) a global pandemic. In response to the outbreak, governmental authorities in the United States and internationally have introduced various recommendations and measures to try to limit the pandemic, including travel restrictions, border closures, non-essential business closures, quarantines, self-isolations, shelters-in-place, and social distancing. The COVID-19 outbreak and the response of governmental authorities to try to limit it are having a significant impact on the private sector and individuals, including unprecedented business, employment, and economic disruptions.
Although the Company has taken steps to mitigate the impact of COVID-19, the continued presence and spread of COVID-19 nationally and globally could have a material adverse impact on the Company’s business, operations, and financial results and position, including through employee attrition, disruptions to the Company’s supply chains and sales channels, restrictions of operations at our retail stores, changes in the number of Americans with health insurance resulting in a change in demand for the Company’s products, as well as a deterioration of general economic conditions including a possible national or global recession. Due to the speed with which the COVID-19 situation is developing and the uncertainty of its magnitude, outcome, and duration, it is not possible to estimate its impact on the Company’s business, operations, financial results and position or prospects at this time.
The Company continues to monitor the situation and work with its stakeholders (including customers, employees, and suppliers) in order to assess further possible implications to its business, supply chain, and customers, and, where practicable, mitigate adverse consequences and responsibly address this global pandemic.
Finally, the actual and threatened spread of COVID-19 globally could adversely affect global economies and financial markets, resulting in a prolonged economic downturn and a decline in the value of the Company’s share price. The extent to which COVID-19 (or any other disease, epidemic, or pandemic) impacts business activity or financial results, and the duration of any such negative impact, will depend on future developments, which are highly uncertain and cannot be predicted, including new information which may emerge concerning COVID-19 and the actions required to contain or treat its impact, among others.
Page | 17
Exhibit 99.108
|
AMENDED
MANAGEMENT’S DISCUSSION AND ANALYSIS
June 30, 2020 and 2019 (Dollar amounts expressed in thousands of Canadian Dollars) |
|
3rd Quarter 2020
Management’s Discussion and Analysis Amended | |
For the Three and Nine Months Ended June 30, 2020 | Protech Home Medical Corp. |
Notice to Reader
The management’s discussion and analysis for the three and nine months ended June 30, 2020 of the Company has been amended following the amended and restated financials reviewed by the Company’s Auditors. This amended management’s discussion and analysis for the three and nine months ended June 30, 2020 (the “Amended MD&A”) was filed to address the changes as a result of the amended and restated financial statements. In particular, the Company has made revisions in this Amended MD&A as follows.
As described in Note 17, the Company identified certain errors and adjustments, as set out below.
1. | Recognition of deferred revenue relating to rental billings in the condensed consolidated interim financial statements as at June 30, 2020 and September 30, 2019, and for the three and nine months ended June 30, 2020 and 2019. |
2. | Classification of expenses in the condensed consolidated interim statements of income (loss) and comprehensive income (loss) for the three and nine months ended June 30, 2020 and 2019. |
3. | Classification of leases and equipment loans in the condensed consolidated interim statements of financial position as at June 30, 2020 and September 30, 2019, and related interest expense in the condensed consolidated interim statements of income (loss) and comprehensive income (loss) for the three and nine months ended June 30, 2020 and 2019 |
4. | Recognition of goodwill impairment in the condensed consolidated interim statements of income (loss) and comprehensive income (loss) and cash flows for the nine months ended June 30, 2019 that had previously been recorded in the year ended September 30, 2019. |
5. | Recognition and measurement of assets, liabilities, and consideration relating to the business acquisitions that were previously reported in the previously issued condensed consolidated interim financial statements as at and for the three and nine months ended June 30, 2020. |
6. | During the year ended September 30, 2020, the Company revised its estimate related to reserve for expected credit losses, and presentation of certain operating expenses under discontinued operations. The effects of these changes are reflected in the condensed consolidated interim statements of financial position as at June 30, 2020, and the condensed consolidated interim statements of income (loss) and comprehensive income (loss) and cash flows for the periods ended June 30, 2020 and 2019. |
7. | Recognition of government grants and warrant derivative liabilities in the condensed consolidated interim financial statements as at June 30, 2020, and for the three and nine months ended June 30, 2020. |
8. | Certain accompanying notes to the condensed consolidated interim financial statements as at June 30, 2020 and September 30, 2019, and for the three and nine months ended June 30, 2020 and 2019. |
Accordingly, the previously issued condensed consolidated interim financial statements as at and for the three and nine months ended June 30, 2020 have been withdrawn and are refiled dated May 10, 2021.
Page | 2
|
AMENDED
MANAGEMENT’S DISCUSSION AND ANALYSIS
June 30, 2020 and 2019 (Dollar amounts expressed in thousands of Canadian Dollars) |
|
The following amended Management’s Discussion and Analysis (“MD&A”) of the financial condition and results of operations of Protech Home Medical Corp. (“Protech” or the “Company”), prepared as of May 10, 2021 and should be read in conjunction with the interim condensed consolidated financial statements for the quarter ended June 30, 2020, including the notes therein. The interim condensed consolidated financial statements have been prepared in accordance with International Financial Reporting Standards (“IFRS”). Unless otherwise specified, all financial data is presented in Canadian dollars. The words “we”, “our”, “us”, “Company”, and “Protech” refer to Protech Home Medical Corp and/or the management and employees of the Company.
Additional information relevant to the Company is available for review on SEDAR at www.sedar.com.
Table of Contents | |
Caution Regarding Forward-Looking Statements | Page 3 |
Quarterly Highlights and Selected Quarterly Information | Page 4 |
About Our Business and Operating Results | Pages 4 – 8 |
Financial Position | Pages 8 – 10 |
Accounting and Disclosure Matters | Pages 10 – 13 |
Financial Instruments and Risk Management | Pages 13 – 14 |
Risk Factors | Pages 14 – 18 |
CAUTION REGARDING FORWARD-LOOKING STATEMENTS
Information included or incorporated by reference in this report may contain forward-looking statements. This information may involve known and unknown risks, uncertainties, and other factors which may cause our actual results, performance, or achievements to be materially different from the future results, performance, or achievements expressed or implied by any forward-looking statements. Forward-looking statements, which involve assumptions and describe our future, strategies, and expectations, are generally identifiable by use of the words “may,” “will,” “should,” “expect,” “anticipate,” “estimate,” “believe,” “plan,” “intend” or “project” or the negative of these words or other variations on these words or comparable terminology. Readers are cautioned regarding statements discussing profitability; growth strategies; anticipated trends in our industry; our future financing plans; and our anticipated needs for working capital. Actual events or results may differ materially from those discussed in forward-looking statements. There can be no assurance that the forward-looking statements contained in this report will in fact occur. The Company bases its forward-looking statements on information currently available to it and assumes no obligation to update them.
THE FORWARD-LOOKING INFORMATION CONTAINED IN THIS MD&A PRESENTS THE EXPECTATIONS OF THE COMPANY AS OF THE DATE OF THIS MD&A AND, ACCORDINGLY, IS SUBJECT TO CHANGE AFTER SUCH DATE. READERS SHOULD NOT PLACE UNDUE IMPORTANCE ON FORWARD-LOOKING INFORMATION AND SHOULD NOT RELY UPON THIS INFORMATION AS OF ANY OTHER DATE. WHILE THE COMPANY MAY ELECT TO, THE COMPANY DOES NOT UNDERTAKE TO UPDATE THIS INFORMATION AT ANY PARTICULAR TIME EXCEPT AS REQUIRED BY APPLICABLE SECURITIES LEGISLATION.
Page | 3
|
AMENDED
MANAGEMENT’S DISCUSSION AND ANALYSIS
June 30, 2020 and 2019 (Tabular dollar amounts expressed in thousands of Canadian Dollars) |
|
QUARTERLY HIGHLIGHTS
- | Increased revenues to $25.7 million, or 28%, from the quarter ended June 30, 2019, achieving a $100 million annual run rate |
- | Completed a bought deal public offering for gross proceeds of $31.8 million |
- | Increased the number of equipment set-ups to 57,551 in the quarter ended June 30, 2020 from 52,007 in the quarter ended June 30, 2019, an increase of 11% |
- | Increased the number of respiratory resupply set-ups to 14,436 in the quarter ended June 30, 2020 from 11,034 in the quarter ended June 30, 2019, an increase of 31% |
- | Generated Adjusted EBITDA of $6 million, a 60% increase from the prior year quarter |
SELECTED INTERIM INFORMATION
For the three months
ended June 30, 2020 |
For the three months
ended June 30, 2019 |
For the nine months
ended June 30, 2020 |
For the nine months
ended June 30, 2019 |
|||||||||||||
Number of patients served(1) | 37,128 | 31,306 | 74,898 | 63,847 | ||||||||||||
Number of equipment set-ups or deliveries | 57,551 | 52,007 | 184,204 | 154,626 | ||||||||||||
Respiratory resupply set-ups or deliveries | 14,436 | 11,034 | 41,855 | 33,954 | ||||||||||||
Adjusted EBITDA(2) | $ | 6,047 | $ | 3,763 | $ | 13,210 | $ | 11,292 |
(1) | The nine-month periods do not equal the sum of the respective three-month periods due to some patients being served in multiple three-month periods. |
(2) | Refer to page four for definition of Adjusted earnings before interest, taxes, depreciation, and amortization (“EBITDA”) |
The words “we”, “our”, “us”, “Company”, and “Protech” refer to Protech Home Medical Corp. and/or the management and employees of the Company.
ABOUT OUR BUSINESS
Protech business objective
The growth in the number of elderly patients in the US healthcare market is creating pressure to provide more efficient delivery systems. Healthcare providers, such as hospitals, physicians, and pharmacies, are seeking partners that can offer a range of products and services that improve outcomes, reduce hospital readmissions, and help control costs. Protech fills this need by delivering a growing number of specialized products and services to achieve these goals. Protech seeks to provide an ever-expanding line of products and services over larger geographic regions within the United States using several growth strategies.
Future Outlook
Protech expects to generate net profit and positive adjusted EBITDA, excluding IFRS treatment of non-cash items. Our top priority continues to be the generation of operational net profit, positive cash flow, and positive EBITDA in fiscal year 2020 and beyond. As we continue to expand in our existing markets, we plan to leverage our business platforms to enter new markets. As we continue to grow and achieve scale, the increasing cash generated from operations will be used to market our service and to gain market share.
Going forward, we seek to find ways to continue to grow our customer base and penetrate these markets, while continuing to streamline our operational platform and generate positive cash flow and operational profits. We will continue to improve on operational efficiencies and call center management as they are key execution points in order to maintain our healthy gross margin while growing revenues via the cross selling of services to existing and acquired patients.
OPERATING RESULTS
COVID-19 Pandemic
On March 11, 2020, the World Health Organization declared the outbreak of a novel strain of coronavirus (“COVID-19”) a global pandemic. In response to the outbreak, governmental authorities in the United States and internationally have introduced various recommendations and measures to try to limit the pandemic, including travel restrictions, non-essential business closures, quarantines, and social distancing. The COVID-19 outbreak and the response of governmental authorities to try to limit it are having a significant impact on the private sector and individuals, including unprecedented business, employment, and economic disruptions.
The Company is considered an essential business and, as such, has continued full operations throughout the pandemic. The Company’s operations continue to perform soundly, with demand remaining elevated and supply chain stability continuing through the third quarter and thereafter. In particular, the Company has experienced increased demand for respiratory equipment, such as ventilators and oxygen concentrators, CPAP supplies, and, in the second half of the third quarter, sleep products.
Page | 4
|
AMENDED
MANAGEMENT’S DISCUSSION AND ANALYSIS
June 30, 2020 and 2019 (Tabular dollar amounts expressed in thousands of Canadian Dollars) |
|
As certain areas of the US, including some markets where the Company operates, are seeing a second wave of COVID-19 cases, the Company has taken the necessary steps to plan, prepare, and respond, treating patients in their homes to relieve the strain on the traditional healthcare system. We continue to provide our patient-facing employees with personal protective equipment.
During the three months ended June 30, 2020, the Company received relief payments related to the two separate provisions of the U.S. Coronavirus Aid, Relief and Economic Security (“CARES”) Act.
Payroll Protection Plan (“PPP’)
April 21, 2020, the Company received approximately $6,000,000 ($5,800,000 at the June 30, 2020 exchange rate) related to the PPP, which was to assist companies in maintaining their workforce. The PPP provided for loans to qualifying businesses for amounts up to 2.5 times of the average monthly payroll expenses. The loans and accrued interest are forgivable as long as the borrower uses the loan proceeds for eligible purposes, including payroll, benefits, rent, and utilities for up to twenty-four weeks, and maintains certain payroll levels. The unforgiven portion of the PPP loan is payable over two years at an interest rate of 1%, with a deferral of payments for the first six months. The Company expects to meet the PPP’s forgiveness eligibility criteria.
Public Health and Social Services Emergency Fund (“Relief Fund”)
During the three months ended June 30, 2020, The Company received approximately $2,400,000 from the Relief Fund, which was established to support healthcare providers to prevent, prepare for, and respond to coronavirus, including health care related expense or lost revenues, subject to certain terms and conditions. If those terms and conditions are met, payments do not need to be repaid. No expenses related to the PPP Can be used to meet the terms and conditions for the Relief Fund. The Company expects to meet the Relief Fund’s terms and conditions.
Accounting policies and estimates
The interim consolidated financial statements for the three and nine months ended June 30, 2020 are prepared under International Financial Reporting Standards (“IFRS”) issued by the governing body of the International Accounting Standards Board (“IASB”). The preparation of financial statements in conformity with IFRS requires management to make estimates and assumptions. These estimates and assumptions affect the reported amounts of assets and liabilities, disclosures of contingent assets and liabilities, and the reported amounts of revenues and expenses for the period of consolidated financial statements.
IFRS accounting treatment
Management does not rely upon non-cash IFRS accounting treatment of certain items such as impairment of goodwill and intangible assets, changes in the fair value of financial derivatives, stock-based compensation and amortization of intangible assets when planning, monitoring, and evaluating the Company’ s performance or in making financial decisions.
Non-IFRS measures
Throughout this MD&A, references are made to several measures which are believed to be meaningful in the assessment of the Company’s performance. These metrics are non-standard measures under IFRS and may not be identical to similar measures reported by other companies. Also, in the future, we may disclose different non- IFRS financial measures to help our investors more meaningfully evaluate and compare our future results of operations to our previously reported results of operations. Readers are cautioned that the disclosure of these items is meant to add to, and not replace, the discussion of financial results as determined in accordance with IFRS. The primary purpose of these non-IFRS measures is to provide supplemental information that may prove useful to investors who wish to consider the impact of certain non-cash or uncontrollable items on the Company’s operating performance.
EBITDA and Adjusted EBITDA
In calculating EBITDA and adjusted EBITDA certain items (mostly non-cash) are excluded from net income (loss) including interest, income taxes, depreciation, amortization, change in fair value of debentures and derivative, stock-based compensation, loss from cyber incident, and acquisition-related costs. Set forth below are descriptions of the financial items that have been excluded from net income or loss to calculate EBITDA and Adjusted EBITDA and the material limitations associated with using these non-IFRS financial measures as compared to net income or loss.
- | Depreciation and amortization expense may be useful for investors to consider because they generally represent the wear and tear on our property and equipment used in our operations and amortization of intangibles valued in purchase accounting. However, we do not believe these charges necessarily reflect the current and ongoing cash charges related to our operating costs. |
- | The amount of interest expense we incur may be useful for investors to consider and may result in current cash inflows or outflows. However, we do not consider the amount of interest expense or interest income to be a representative component of the day-to-day operating performance of our business. |
Page | 5
|
AMENDED
MANAGEMENT’S DISCUSSION AND ANALYSIS
June 30, 2020 and 2019 (Tabular dollar amounts expressed in thousands of Canadian Dollars) |
|
- | Change in fair value of debentures and derivative may be useful for investors to consider as it represents changes in the fair value of debentures, driven by changes in the trading price of the debentures. These changes are non-cash, as the settlement of the underlying debenture will be at the face value. |
- | Provision for income taxes may be useful for investors to consider because it generally represents the taxes which may be payable for the period and may reduce the amount of funds otherwise available for use. However, we do not consider the amount of income tax expense to be a representative component of the day-to-day operating performance of our business. |
- | Stock-based compensation may be useful for investors to consider because it is an estimate of the non-cash component of compensation received by the Company’s directors, officers, employees, and consultants. However, stock-based compensation is being excluded from the Company’ s operating expenses because the decisions which gave rise to these expenses were not made to increase revenue in a particular period but were made for the Company’ s long-term benefit over multiple periods. While strategic decisions, such as those to issue stock-based awards are made to further the Company’ s long-term strategic objectives and do impact the Company’s earnings under IFRS, these items affect multiple periods and management is not able to change or affect these items within any period. |
- | Loss from cyber incident and acquisition-related costs were non-recurring costs that we do not consider to be representative of day-to-day operations. |
Management uses both IFRS and non-IFRS measures when planning, monitoring, and evaluating the Company’s performance.
The following table of adjusted EBITDA show our IFRS measures reconciled to EBITDA (non-IFRS measure) for the indicated periods. The table of net (loss) income is also measured based on IFRS. Both tables are shown net of discontinued operations. Discontinued operations are comprised of the earnings after tax of discontinued operations until divestiture and the gain or loss after tax on sale, less costs to sell.
Three
months ended June 30, 2020 |
Three
months ended June 30, 2019 |
Nine months
ended June 30, 2020 |
Nine months
ended June 30, 2019 |
|||||||||||||
Net income (loss) from continuing operations | $ | (3,382 | ) | $ | (12,564 | ) | $ | (5,068 | ) | $ | (14,073 | ) | ||||
Add back: | ||||||||||||||||
Depreciation and amortization | 5,058 | 3,377 | 14,319 | 9,699 | ||||||||||||
Interest expense, net | 651 | 944 | 1,875 | 2,105 | ||||||||||||
Change in fair value of debentures and derivative | 3,314 | (161 | ) | 1,500 | (133 | ) | ||||||||||
Transaction costs | 284 | - | 284 | - | ||||||||||||
Loss on extinguishment of debt | - | 1,107 | - | 1,107 | ||||||||||||
Provision for income taxes | 49 | 29 | 93 | 134 | ||||||||||||
EBITDA | 5,974 | (7,268 | ) | 13,003 | (1,161 | ) | ||||||||||
Stock-based compensation | 73 | 446 | 207 | 1,337 | ||||||||||||
Impairment of goodwill | - | - | - | 531 | ||||||||||||
Loss from cyber incident | - | 9,184 | - | 9,184 | ||||||||||||
Acquisition-related costs | - | 1,401 | - | 1,401 | ||||||||||||
Adjusted EBITDA | $ | 6,047 | $ | 3,763 | $ | 13,210 | $ | 11,292 |
Page | 6
|
AMENDED
MANAGEMENT’S DISCUSSION AND ANALYSIS
June 30, 2020 and 2019 (Tabular dollar amounts expressed in thousands of Canadian Dollars) |
|
Three
months ended June 30, 2020 |
Three
months ended June 30, 2019 |
Nine
months ended June 30, 2020 |
Nine
months ended June 30, 2019 |
|||||||||||||
Revenues | $ | 25,735 | $ | 20,164 | $ | 71,610 | $ | 61,497 | ||||||||
Inventory sold | 7,223 | 5,836 | 19,697 | 17,687 | ||||||||||||
Operating expenses | 13,113 | 10,604 | 39,642 | 32,388 | ||||||||||||
Depreciation | 4,850 | 3,224 | 13,651 | 9,244 | ||||||||||||
Amortization of intangible assets | 208 | 153 | 668 | 455 | ||||||||||||
Stock-based compensation | 73 | 446 | 207 | 1,337 | ||||||||||||
Impairment of goodwill | - | - | - | 531 | ||||||||||||
Loss from cyber incident | - | 9,184 | - | 9,184 | ||||||||||||
Acquisition-related costs | - | 1,401 | - | 1,401 | ||||||||||||
Gain on disposals of property and equipment | (15 | ) | (39 | ) | (106 | ) | 124 | |||||||||
Other expense (income) | (633 | ) | - | (833 | ) | 6 | ||||||||||
Interest expense, net | 651 | 944 | 1,875 | 2,105 | ||||||||||||
Transaction costs | 284 | - | 284 | - | ||||||||||||
Loss on extinguishment of debentures | - | 1,107 | - | 1,107 | ||||||||||||
Change in fair value of debentures and derivative | 3,314 | (161 | ) | 1,500 | (133 | ) | ||||||||||
Provision for income taxes | 49 | 29 | 93 | 134 | ||||||||||||
Net income (loss) from continuing operations | (3,382 | ) | (12,564 | ) | (5,068 | ) | (14,073 | ) | ||||||||
Income (loss) from discontinued operations | - | 25 | (1,158 | ) | 607 | |||||||||||
Net income (loss) | $ | (3,382 | ) | $ | (12,539 | ) | $ | (6,226 | ) | $ | (13,466 | ) | ||||
Income (loss) per share | ||||||||||||||||
Basic | $ | (0.04 | ) | $ | (0.15 | ) | $ | (0.07 | ) | $ | (0.16 | ) | ||||
Diluted | (0.04 | ) | (0.15 | ) | (0.07 | ) | (0.16 | ) |
Revenue
For the three months ended June 30, 2020, revenue totaled $25,735,000, an increase of approximately $5,571,000, or 28%, from the same period in 2019. This increase is due to the acquisitions of two businesses in the first quarter of fiscal year 2020 and organic growth.
For the nine months ended June 30, 2020, revenue totaled $71,610,000, an increase of approximately $10,113,000, or 16%, from the same period in 2019. This increase is due to the acquisitions of two businesses in the first quarter of fiscal year 2020 and organic growth.
Operating expenses
For the three months ended June 30, 2020, total operating expenses were $13,113,000, or 51% of revenue, as compared to $10,604,000, or 53% of revenue for the same period in 2019. The increase in dollars was primarily due to approximately $1,500,000 from the acquisitions of two businesses in the first quarter of 2020. An increase in bad debt expense was partially offset by lower facility costs due to the adoption of IFRS 16, Leases (see Note 2 to the interim condensed consolidated interim financial statements). The improvement as a percent of revenue is due to controlling payroll costs relative to increasing revenues.
For the nine months ended June 30, 2020, total operating expenses were $39,642,000, an increase of approximately $7,254,000 from the same period in 2019. The increase was primarily due to approximately $4,800,000 from the acquisitions of two businesses in the first quarter of 2020. An increase in bad debt expense was partially offset by lower facility costs due to the adoption of IFRS 16, Leases (see Note 2 to the interim condensed consolidated interim financial statements).
Page | 7
|
AMENDED
MANAGEMENT’S DISCUSSION AND ANALYSIS
June 30, 2020 and 2019 (Tabular dollar amounts expressed in thousands of Canadian Dollars) |
|
Depreciation expense
Depreciation expense increased by approximately $1,626,000 to $4,850,000 for the three months ended June 30, 2020. Approximately $600,000 was due to the acquisitions of two businesses in the first quarter of 2020, and approximately $600,000 was due to the adoption of IFRS 16, Leases (see Note 2 to the interim condensed consolidated interim financial statements). The remaining increase is primarily due to increased depreciation on monitoring equipment added in the second half of 2019 and the first half of 2020.
Depreciation expense increased by approximately $4,407,000 to $13,651,000 for the nine months ended June 30, 2020. Approximately $1,600,000 was due to the two acquisitions of two businesses in the first quarter of 2020 and approximately $1,500,000 was due to the adoption of IFRS 16, Leases (see Note 2 to the interim condensed consolidated interim financial statements). The remaining increase is due to increased depreciation on monitoring equipment added in the second half of 2019 and the first half of 2020.
Stock-based compensation
For the three and nine months ended June 30, 2020, stock-based compensation was $73,000 and $207,000, respectively, compared to $446,000 and $1,337,000 in the respective periods of the prior year. The decline is due to options becoming fully vested during the year ended September 30, 2019.
Interest expense and accretion expense
Interest expense on debentures for the three months ended June 30, 2020 decreased to $300,000 from $430,000 for the three months ended June 30, 2019, as the prior year contained a period with two debentures outstanding. The Company issued new debentures on March 7, 2019 for $15,000,000, bearing an interest rate of 8.0%, but did not pay off the prior debentures of $8,625,000 bearing an interest rate of 7.5% until May 2019. Other interest expense for the three months ended June 30, 2020 of $351,000 increased from $171,000 for the three months ended June 30, 2019, primarily due to having a higher lease liability balance from the adoption of IFRS 16, Leases. The accretion expense in 2019 related to the debentures that were repaid in May 2019.
Interest expense on debentures for the nine months ended June 30, 2020 increased to $900,000 from $753,000 for the nine months ended June 30, 2019, due to the current debentures having a face value and higher interest rate than the prior debentures. The Company issued new debentures on March 7, 2019 for $15,000,000, bearing an interest rate of 8.0%, as compared to the prior debentures of $8,625,000 bearing an interest rate of 7.5%. Other interest expense for the nine months ended June 30, 2020 of $975,000 increased from $489,000 for the three months ended June 30, 2019, primarily due to having a higher lease liability balance from the adoption of IFRS 16, Leases. The accretion expense in 2019 related to the debentures that were repaid in May 2019.
Change in fair value of debentures and derivative
For the three and nine months ended June 30, 2020, the change in fair value of debentures and derivative was a loss of $3,314,000 and $1,500,000, respectively, and was due to the increase in the trading price of the debenture. For the three and nine months ended June 30, 2019, the change in fair value of debentures and derivative was a small gain as the result of changes in the fair value of outstanding warrants.
FINANCIAL POSITION | ||||||||
As at | As at | |||||||
June 30, 2020 | September 30, 2019 | |||||||
Cash | $ | 44,678 | $ | 12,855 | ||||
Accounts receivable | 11,599 | 12,390 | ||||||
Inventory | 7,314 | 4,738 | ||||||
Other current assets | 1,263 | 800 | ||||||
Total current assets | 64,854 | 30,783 | ||||||
Property and equipment | 24,416 | 19,496 | ||||||
Intangible and other assets | 6,951 | 4,886 | ||||||
Total assets | $ | 96,221 | $ | 55,165 | ||||
Total current liabilities, including current portion of lease liabilities | $ | 33,399 | $ | 21,081 | ||||
Long-term debt and other long-term liabilities | 24,552 | 16,839 | ||||||
Total liabilities | 57,951 | 37,920 | ||||||
Total shareholders’ equity | 38,270 | 17,245 | ||||||
Total liabilities and shareholders’ equity | $ | 96,221 | $ | 55,165 |
Liquidity
At June 30, 2020, the Company had cash on hand of $44,678,000. The Company’s approach in managing liquidity is to ensure, to the extent possible, that it will have enough liquidity to meet its liabilities as they come due by continuously monitoring actual and expected cash flows and monitoring financial market conditions for signs of weakness.
Page | 8
|
AMENDED
MANAGEMENT’S DISCUSSION AND ANALYSIS
June 30, 2020 and 2019 (Tabular dollar amounts expressed in thousands of Canadian Dollars) |
|
As of June 30, 2020, the Company faces no material liquidity risk and can meet all its current financial obligations as they become due and payable. The Company has $33,399,000 liabilities that are due within one year but has $64,854,000 of current assets to meet those obligations.
Capital Resources
The Company’s shareholders’ equity totaled $38,270,000 at June 30, 2020 and had debentures with a face amount of $15,000,000. Additionally, the Company had lease liabilities with a principal amount of $15,480,000.
The Company plans to raise capital, as necessary, to meet its needs and take advantage of perceived opportunities and, therefore, does not have a numeric target for its capital structure. Funds are primarily secured through debt instruments, equity capital raised by way of private placements, and convertible notes. There can be no assurance that the Company will be able to continue raising capital in this manner.
Management reviews its capital management approach on an ongoing basis and believes that this approach, given the relative size of the Company, is reasonable.
The Company invests all capital that is surplus to its immediate operational needs in short-term, liquid and highly rated financial instruments, such as cash and short-term guarantee deposits, held with major Canadian and US financial institutions.
On June 29, 2020, the Company completed a public offering, a concurrent brokered private placement, and a non-brokered private placement to the Company’s Chief Executive Officer and a director of the Company, for 25,001,000, 1,750,000 and 927,826 units, respectively. Each unit issued was issued at a price of $1.15 for total gross proceeds of $31,831,000 and consisted of one common share and one-half of one common share purchase warrant (each whole warrant, a “Warrant”). Issuance costs of $2,546,000 in cash, including underwriters’ commissions of $1,692,000 were incurred, resulting in net proceeds to the Company of $29,835,000
The net proceeds will be used to increase the cash position of the Company without any other current known or specified near- or medium-term purpose. The Company believes it is prudent to secure capital to ensure that the Company maintains sufficient liquidity and capital resources in the near- to medium-term. In addition, the Company wishes to ensure that it has sufficient cash on hand in order to complete strategic acquisitions in the future if, as, and when any such opportunities arise. The Company has spent the last several years building and solidifying its platform and now believes there are opportunities to pivot into a strategy more focused on growth. The Company intends to use the net proceeds to strengthen its balance sheet to ensure that it is well positioned to aggressively pursue its corporate strategy to grow the business, both organically and via acquisition. The Company continues to pursue additional accretive acquisitions that are designed to build scale, within markets currently served and new markets. The focus remains on strategic locations driven by product mix, distribution volumes, and the ability to consolidate distribution channels to drive operating efficiencies and maximize earnings accretion. The Company is focused on targets with stable revenue generation and consistent EBITDA margins, to which it can add expanded product offerings, improved cost of goods sold through purchasing volume, and efficiencies across the operations.
The anticipated use of net proceeds as detailed above is based on the best estimates prepared by management of the Company. Actual expenditures may differ from the expectations set forth above. The stated business objectives of the Company are to remain focused on the continued operations of its business, while looking for opportunities to increase revenue and reduce costs in an effort to improve margins, which can, if the opportunity arises, include one or more strategic acquisitions.
Until applied, the net proceeds will be held as cash balances in the Company’s bank account or invested in certificates of deposit and other instruments issued by banks or obligations of or guaranteed by the Government of Canada or any province thereof or the Government of the United States or any state thereof.
Each Warrant will be exercisable to acquire one common share for a period of 12 months following the closing at an exercise price of $1.60 per share. The Company issued compensation options to the underwriter for 1,471,305 shares at the issue price of $1.15 for a period of two years from the closing of the offering.
The Company had the following equity instruments outstanding at June 30, 2020 and September 30, 2019:
As at
June 30, 2020 (000’s) |
As at
September 30, 2019 (000’s) |
|||||||
Common shares | 111,845 | 83,589 | ||||||
Compensation Options | 519 | 886 | ||||||
Warrants | 13,839 | - | ||||||
Options - employees and consultants | 10,716 | 11,392 |
Page | 9
|
AMENDED
MANAGEMENT’S DISCUSSION AND ANALYSIS
June 30, 2020 and 2019 (Tabular dollar amounts expressed in thousands of Canadian Dollars) |
|
Commitments and Contingencies
From time to time, the Company is involved in various legal proceedings arising from the ordinary course of business, none of the matters in which the Company is currently involved, either individually, or in the aggregate, is expected to have a material adverse effect on the Company’s consolidated financial position, results of operations, or cash flows.
Summary of Quarterly Operating Results from continuing operations
A summary of quarterly results for the eight most recently completed quarters are as follows:
Quarter ended
June 30, 2020 |
Quarter ended
March 31, 2020 |
Quarter ended
December 31, 2019 |
Quarter ended
September 30, 2019 |
|||||||||||||
Revenue | $ | 25,735 | $ | 24,028 | $ | 21,846 | $ | 19,470 | ||||||||
Net income (loss) from continuing operations | (3,382 | ) | 2,820 | (4,507 | ) | 4,400 | ||||||||||
Net income (loss) per share – continuing operations | $ | (0.04 | ) | $ | 0.03 | $ | (0.06 | ) | $ | 0.05 |
Quarter ended
June 30, 2019 |
Quarter ended
March 31, 2019 |
Quarter ended
December 31, 2018 |
Quarter ended
September 30, 2018 |
|||||||||||||
Revenue | $ | 20,164 | $ | 20,824 | $ | 20,509 | $ | 18,041 | ||||||||
Net income (loss) from continuing operations | (12,564 | ) | (591 | ) | (917 | ) | 679 | |||||||||
Net income (loss) per share – continuing operations | $ | (0.15 | ) | $ | (0.01 | ) | $ | (0.01 | ) | $ | 0.01 |
Results of operations for the healthcare services market in which the Company operates show little seasonality from quarter to quarter.
Related party transactions
The Company entered into six market rate leases for office, warehouse, and retail space with a rental Company affiliated with the Company’s Chief Executive Officer, the majority of which were entered into in 2015. The leases have a combined area of 74,520 square feet. Lease payments under these leases are approximately $68,000 per month, plus taxes, utilities, and maintenance.
Payments of approximately $59,000 and $56,000 were made to members of the Board of Directors for three months ended June 30, 2020 and 2019, respectively. Payments of $172,000 and $181,000 were made to the board for the nine months ended June 30, 2020 and 2019, respectively.
Key management personnel also participate in the Company’s share option program. The Company paid or accrued compensation to key management personnel the following:
Three
months ended June 30, 2020 |
Three
months ended June 30, 2019 |
Nine months
ended June 30, 2020 |
Nine months
ended June 30, 2019 |
|||||||||||||
Salaries and Benefits | $ | 272 | $ | 237 | $ | 796 | $ | 1,225 | ||||||||
Stock-based compensation | - | 296 | - | 858 | ||||||||||||
Total | $ | 272 | $ | 533 | $ | 796 | $ | 2,083 |
Off balance sheet arrangements
The Company has no material undisclosed off-balance sheet arrangements that have or are reasonably likely to have, a current or future effect on its results of operations or financial condition.
ACCOUNTING AND DISCLOSURE MATTERS
Financial reporting controls
The Company is not required to certify the design and evaluation of its disclosure controls and procedures and internal controls over financial reporting and has not completed such an evaluation.
There were no substantive changes in the Company’s disclosure controls and procedures and internal controls over financial reporting during the period ended June 30, 2020 that have materially affected, or are reasonably likely to materially affect, the Company’s disclosure controls and procedures and internal controls over financial reporting.
Page | 10
|
AMENDED
MANAGEMENT’S DISCUSSION AND ANALYSIS
June 30, 2020 and 2019 (Tabular dollar amounts expressed in thousands of Canadian Dollars) |
|
Critical accounting estimates
The preparation of financial statements in conformity with IFRS requires management to make estimates and assumptions that affect the reported amounts of assets, liabilities, revenues and expenses and the disclosure of contingent assets and liabilities in the interim condensed consolidated financial statements. We constantly evaluate these estimates and assumptions.
We base our estimates and assumptions on experience and other factors that are deemed reasonable under the circumstances. This involves varying degrees of judgment and uncertainty, thus the amounts currently reported in the interim condensed consolidated financial statements could prove to be inaccurate in the future.
We consider the estimates and assumptions described in this section to be an important part in understanding the interim condensed consolidated financial statements. These estimates and assumptions are subject to change, as they rely heavily on management’ s judgment and are based on factors that are inherently uncertain.
Revenue recognition
Revenue consists of net patient service revenue. Net patient service revenue is recognized at the time services are provided net of contractual adjustments based on an evaluation of expected collections resulting from the analysis of current and past due accounts, past collection experience in relation to amounts billed and other relevant information. Contractual adjustments result from the differences between the rates charged for services and reimbursements by government-sponsored healthcare programs and insurance companies for such services.
Accounts receivable
Accounts receivable are recorded at the time revenue is recognized and are presented on the balance sheet net of an allowance for uncollectible accounts. It is possible that our estimates of the allowance for uncollectible accounts could change, which could have a material impact on our operations and cash flows.
The Company will write-off receivables when the likelihood for collection is remote or and when the Company believes collection efforts have been fully exhausted and it does not intend to devote additional resources in attempting to collect.
Stock-based compensation
The Company accounts for stock-based compensation, including employee and consultant stock options, stock grants to consultants, underwriter compensation options, and warrants, using the fair value method as prescribed by IFRS 2. Under this method, the fair value of stock options and warrants at the date of grant is amortized over the vesting period and the offsetting credit is recorded as an increase in contributed surplus. The Company accounts for forfeitures as they occur.
Income taxes
The Company is subject to income taxes in numerous jurisdictions. Significant judgment is required in determining the provision for income taxes and the Company’s income tax provisions reflect management’s interpretation of country-specific tax law. There are many transactions and calculations for which the ultimate tax determination is uncertain during the ordinary course of business and may remain uncertain for several years after their occurrence. The Company recognizes assets and liabilities for taxation when it is probable that the relevant taxation authority will require the Company to receive or pay taxes.
Where the outcome of the determination of tax assets and liabilities is different from the amounts that were initially recorded, such differences will impact the current and deferred income taxes provision in the period in which such determination is made. Changes in tax law or changes in the way tax law is interpreted may also impact the Company’s effective tax rate as well as its business and operations.
Deferred income tax assets and liabilities are recognized for the future income tax consequences attributable to temporary differences between the financial statement carrying value of assets and liabilities and their respective income tax bases. Deferred income tax assets or liabilities are measured using enacted or substantively enacted income tax rates expected to apply to taxable income in the years in which those temporary differences are expected to be recovered or settled.
The calculation of current and deferred income taxes requires management to make estimates and assumptions and to exercise a certain amount of judgment concerning the carrying value of assets and liabilities. The current and deferred income tax assets and liabilities are also impacted by expectations about future operating results and the timing of reversal of temporary differences as well as possible audits of tax filings by regulatory agencies. Changes or differences in these estimates or assumptions may result in changes to the current and deferred tax assets and liabilities on the consolidated statements of financial position and a charge to or recovery of income tax expense.
Page | 11
|
AMENDED
MANAGEMENT’S DISCUSSION AND ANALYSIS
June 30, 2020 and 2019 (Tabular dollar amounts expressed in thousands of Canadian Dollars) |
|
Acquisition accounting
Accounting for business combinations requires the allocation of the Company’s purchase price to the various assets and liabilities of the acquired business at their respective fair values. The Company uses all available information to make these fair value determinations. In some instances, assumptions with respect to the timing and amount of future revenues and expenses associated with an asset or group of assets may be used to determine fair value. Actual timing and amount of net cash flows from revenues and expenses related to that asset over time may differ materially from those initial estimates, and if the timing is delayed significantly or if the net cash flows decline significantly, the asset could become impaired.
Discontinued operations
An operation is qualified as discontinued when it represents a separate major line of business and has been sold, or when the criteria for classification as an asset held for distribution have been met.
Discontinued operations are presented on the statement of income (loss) and comprehensive income (loss) for the periods reported, comprising the earnings after tax of discontinued operations until divestiture and the gain or loss after tax on sale or fair value measurement, less costs to sell.
Significant accounting judgments
The following are the critical judgments, apart from those involving estimations, that have been made in the process of applying the Company’s accounting policies and that have the most significant effect on the amounts recognized in the interim condensed consolidated financial statements.
Functional currency
Management has exercised judgment in selecting the functional currency of each of the entities that it consolidates based on the primary economic environment in which the entity operates and in reference to the various indicators including the currency that primarily influences or determines the selling prices of goods and services and the cost of production, including labor, material and other costs and the currency whose competitive forces and regulations mainly determine selling prices. The interim condensed consolidated financial statements of the Company are presented in Canadian dollars, which is the parent company’s presentation currency, but which differs from its functional currency, the US dollar, which was determined using managements assumption that the primary economic environment from which it will derive its revenues and the expenses incurred to generate those revenues is the US.
Segment reporting
Management has assessed the information that is provided to the chief operating decision maker and how the business is monitored and has exercised judgment in determining that there is only one operating segment.
Asset impairment and cash generating units
For purposes of the asset impairment testing, the Company identifies cash generating units as the smallest identifiable groups of assets that generate independent cash inflows. Impairment testing is performed on these groups of assets on an annual basis or when events or circumstances indicate that the cash generating unit may become impaired considering the assessed and projected recoverable values of the cash generating unit. The Company has elected to perform the annual impairment testing in the fourth quarter.
Valuation of derivative instruments
Management has exercised judgment in the determination of the fair value of the derivative instruments. Estimating fair value for the derivatives requires determining the most appropriate valuation model, which is dependent on the terms and conditions of the instrument. This estimate also requires the judgment in the determination of the most appropriate inputs to the valuation model including the expected life of the option or warrant, volatility and dividend yield and making assumptions about them.
Recognition of leases
Management has exercised judgment in the determination of whether a contract to rent equipment represents a financing lease. Using historical returns and other operational data management has determined that in cases where the Company is the lessor, no rental agreements represent financing leases.
Page | 12
|
AMENDED
MANAGEMENT’S DISCUSSION AND ANALYSIS
June 30, 2020 and 2019 (Tabular dollar amounts expressed in thousands of Canadian Dollars) |
|
Business Acquisitions
On October 31, 2018, the Company, through one of its indirect wholly owned subsidiaries, entered into a purchase agreement to acquire 100% of the shares of Central Oxygen Inc., an Indiana company. Total consideration was $395,000 in cash and stock.
On October 31, 2018, the Company, through one of its indirect wholly owned subsidiaries, entered into a purchase agreement to acquire 100% of the shares of Riverside Medical Inc., a Tennessee company. Total consideration was $131,000 in cash.
Effective October 1, 2019, the Company, through one of its indirect wholly owned subsidiaries, entered into a purchase agreement to acquire 100% of the shares of Cooley Medical Equipment, Inc., a Kentucky company, Total consideration was $3,617,000, of which $3,089,000 was paid in cash at closing, and the balance of $528,000 to be paid on the 18-month anniversary of the acquisition discounted at 3.86%.
Effective December 1, 2019, the Company, through one of its indirect wholly owned subsidiaries, entered into a purchase agreement to acquire 100% of the shares of Acadia Medical Supply, Inc., a Maine company. Total consideration was $1,961,000, of which $1,334,000 was paid in cash at closing, and the balance of $627,000 to be paid on the one- and two-year anniversaries of the acquisition discounted at 3.86%.
FINANCIAL INSTRUMENTS AND RISK MANAGEMENT
Financial instrument risk exposure
The Company’ s activities expose it to a variety of financial risks: market risk (including price risk, currency risk and interest rate risk), credit risk and liquidity risk. These risks arise from the normal course of operations and all transactions are undertaken to support the Company’ s ability to continue as a going concern. Risk management is carried out by management under policies approved by the Board of Directors. Management identifies and evaluates the financial risks in co-operation with the Company’s operating units. The Company’s overall risk management program seeks to minimize potential adverse effects on the Company’s financial performance.
Credit risk
Credit risk is the risk that one party to a financial instrument will fail to discharge an obligation and cause the other party to incur a financial loss. Financial instruments that potentially subject the Company to credit risk are primarily cash and accounts receivable. Each subsidiary places its cash with one major financial institution. At times, the cash in the financial institution is temporarily in excess of the amount insured by the Federal Deposit Insurance Corporation. Substantially all accounts receivable are due under fee-for-service contracts from third party payors, such as insurance companies and government-sponsored healthcare programs, directly from patients or for rebates due from manufacturers. Receivables generally are collected within industry norms for third-party payors and from manufacturers. The Company continuously monitors collections from its clients and maintains an allowance for bad debts based upon any specific payor collection issues that are identified and historical experience.
Currency risk
Currency risk is the risk that the Company will be subject to foreign currency fluctuations in satisfying obligations related to its foreign activities.
The Company realizes virtually all of its sales and makes a significant amount of its purchases in US dollars. Consequently, assets and liabilities are exposed to foreign exchange fluctuations.
The Company monitors and forecasts the values of net foreign currency cash flow and statement of financial position exposures and from time to time could authorize the use of derivative financial instruments such as forward foreign exchange contracts to economically hedge a portion of foreign currency fluctuations.
Based on the above net exposure at June 30, 2020, a 10% depreciation or appreciation of the US dollar against the Canadian dollar would not result in a significant effect in net loss. The Company has not employed any currency hedging programs during the periods ended June 30, 2020 or 2019.
Liquidity risk
Liquidity risk is the risk that the Company will not be able to meet its financial obligations as they become due. The Company’s approach in managing liquidity is to ensure, to the extent possible, that it will have sufficient liquidity to meet its liabilities when due, under both normal conditions, by continuously monitoring actual and budgeted cash flows.
As of June 30, 2020, the Company faces no material liquidity risk and can meet all its current financial obligations as they become due and payable. The Company has $33,399,000 of liabilities that are due within one year. The Company has $64.854,000 of current assets to meet those obligations.
Page | 13
|
AMENDED
MANAGEMENT’S DISCUSSION AND ANALYSIS
June 30, 2020 and 2019 (Tabular dollar amounts expressed in thousands of Canadian Dollars) |
|
Interest rate risk
Interest rate risk is the risk that the future cash flows of a financial instrument will fluctuate because of changes in market interest rates. Interest rate risk is limited to potential decreases on the interest rate offered on cash and cash equivalents held with Chartered Canadian and registered US financial institutions. The Company considers this risk to be immaterial. The interest on the convertible notes is not subject to cash flow interest rate risk as these instruments bear interest at fixed rates.
RISK FACTORS
While it is impossible to identify all such risk factors, factors that could cause actual results to differ materially from those estimated by us include:
Market Price of the Company Shares
The Company Shares are listed and posted for trading on the TSX Venture Exchange. Securities of small-cap and healthcare companies have experienced substantial volatility in the past, often based on factors unrelated to the financial performance or prospects of the companies involved. These factors include macroeconomic developments in North America and globally, and market perceptions of the attractiveness of particular industries. The price of the Company Shares is also likely to be significantly affected by short-term changes in cost of goods, or in financial condition or results of operations. Other factors unrelated to the performance of the Company that may have an effect on the price of the Company Shares include the following: the extent of analytical coverage available to investors concerning the business of the Company may be limited if investment banks with research capabilities do not follow the Company securities; lessening in trading volume and general market interest in the Company’s securities may affect an investor’s ability to trade significant numbers of the Company Shares; the size of the Company’s public float may limit the ability of some institutions to invest in the Company’s securities; and a substantial decline in the price of the Company Shares that persists for a significant period of time could cause the Company’s securities, if listed on an exchange, to be delisted from such exchange, further reducing market liquidity.
As a result of any of these factors, the market price of the Company Shares at any given point in time may not accurately reflect the long-term value of the Company. Securities class-action litigation often has been brought against companies following periods of volatility in the market price of their securities. The Company may in the future be the target of similar litigation. Securities litigation could result in substantial costs and damages and divert management’s attention and resources.
Dilution
The Company will require additional funds in respect of the further development of the company through acquisition. If the Company raises funds by issuing additional equity securities, such financing will dilute the equity interests of its shareholders.
Future Sales of Shares by Existing Shareholders
Sales of the Company Shares in the public markets, or the potential for such sales, could decrease the trading price of the Company Shares and could impair The Company’s ability to raise capital through future sales of the Company Shares. The Company may from time to time have previously issued securities at an effective price per share which will be lower than the market price of the Company Shares. Accordingly, certain shareholders of The Company may have an investment profit in the Company Shares that they may seek to liquidate.
Limited History of Operations
The Company has a limited history of operations. There can be no assurance that the business of the Company and/or its subsidiaries will be successful and generate, or maintain, any profit.
Reimbursement Rates May Decline / Competitive Bid
Reimbursement for services to be provided by the Company come primarily from Medicare and private health insurance companies. The reimbursement rates offered are outside the control of the Company. Reimbursement rates for much of the US health care market have been subject to continual reductions as health insurers and governmental entities attempt to control health care costs. The extent and timing of any reduction in reimbursement rates cannot be predicted by the Company.
Specifically, the Centers for Medicare & Medicaid Services (“CMS”) oversees a competitive bidding program covering durable medical equipment (“DME”), the process in which a Medicare supplier provides DME products to Medicare beneficiaries. Pursuant to the CMS, beginning in 2021, a new competitive bidding process known as Round 2021 will be launched by the CMS, covering contracts running from January 1, 2021 to December 31, 2023. It is possible that the Company may not be selected in some or all the Competitive Bidding Area (“CBA”) that is has bid for. It is also possible that the Company may not be selected for some or all of the product categories for which it has bid. Non-selection for CBA and/or product category may result in loss of revenue and referral sources.
Page | 14
|
AMENDED
MANAGEMENT’S DISCUSSION AND ANALYSIS
June 30, 2020 and 2019 (Tabular dollar amounts expressed in thousands of Canadian Dollars) |
|
Reductions in reimbursement rates can have a material impact on the profitability of the Company’s operations. A reduction in reimbursement may be unrelated to any concurrent decline in the cost of operations, thereby resulting in reduced profitability. The Company’s costs of operations could increase, but the cost increases may not be passed on to customers because reimbursement rates are set without regard to the cost of service.
Dependence Upon Relationships with Key Suppliers
There are few manufacturers of equipment for certain of the Company’s products. This presents risks that suppliers may not be able to provide equipment to satisfy demand. Demand may outstrip supply, leading to equipment shortages. Conversely, incorrect demand forecasting could lead to excess inventory. If the Company fails to achieve certain volume of sales, prices of inventory may increase. The industry is subject to a high level of regulatory scrutiny, and government or manufacturer recalls could adversely affect the Company’s ability to achieve revenue targets. Inadequate supply could impair the Company’s ability to attract new business and could create upward pricing pressure on equipment and supplies, adversely affecting margins for the Company.
Reliance Upon Few Payors
The Company will earn revenues by seeking reimbursement from Medicare and private health insurance companies, with the Medicare program of the US government being the primary entity making payments. If the Medicare program were to slow payments of receivables for any reason, the Company would be adversely impacted. In addition, both governmental and private health insurance companies may seek ways to avoid or delay reimbursement, which could adversely affect cash flow and revenues for the Company.
Government Regulation
Some operations of the Company will require certain licenses and permits from the authorities in the United States. The ability of the Company and its subsidiaries to obtain, sustain, or renew any such licenses and permits on acceptable terms is subject to changes in regulations and policies and to the discretion of the applicable authorities or other governmental agencies. The ability of the Company to collect certain revenues in the future will depend on the Company receiving approval of an independent diagnostic testing facility and entering into an agreement with Medicare. There is no guarantee that the Company will meet these conditions. The Company will be subject to regulation from United States federal and state authorities. Regulatory action could disrupt its ability to provide services. Such regulatory action could come in the form of actions against manufacturers, unrelated to the Company’s conduct, or actions based upon the Company’s operation. Regulatory action could prevent or delay reimbursement for certain services.
There could also be legislative action that could adversely affect the Company’s business model, including, without limitation: a decision by the United States government to become the exclusive provider of health care services at some time in the future; changes in United States federal or state laws, rules, and regulations, including those governing the corporate practice of medicine, and fee splitting; and changes in the United States Anti-Kickback Statute and Stark Law and/or similar state laws, rules, and regulations. Conversely, budgetary problems in the United States could lead to reduced funding, substantial modification, or elimination of Medicare programs, which would end reimbursement for many patients. There can be no assurance that new rules and regulations will not be enacted or that existing rules and regulations will not be applied in a manner which could limit or curtail the business of the Company. Amendments to current laws and regulations could have a substantial adverse impact on the Company.
Highly Competitive Market
The Company will participate in a highly competitive market, which may become more competitive as new players enter. Certain competitors will be subsidiaries or divisions of larger, much better capitalized companies. Certain competitors will have vertically integrated manufacturing and services sectors of the market. The Company may have less capital and may encounter greater operational challenges in serving the market. Better capitalized competitors may also be expected to borrow money or raise debt to purchase equipment more easily than the Company.
Foreign Subsidiaries
The Company plans to conduct all its operations through respective United States subsidiaries. Therefore, to the extent of these holdings, the Company (directly and indirectly) will be dependent on the cash flows of these subsidiaries to meet its obligations. The ability of such subsidiaries to make payments to their parent companies may be constrained by the following factors: the level of taxation, particularly corporate profits and withholding taxes, in the jurisdiction in which each subsidiary operates; and the introduction of exchange controls or repatriation restrictions or the availability of hard currency to be repatriated.
Page | 15
|
AMENDED
MANAGEMENT’S DISCUSSION AND ANALYSIS
June 30, 2020 and 2019 (Tabular dollar amounts expressed in thousands of Canadian Dollars) |
|
Attraction and Retention of Key Personnel Including Directors
The Company will have a small management team and the loss of a key individual or inability to attract suitably qualified staff could have a material adverse impact on the business of The Company. The Company may also encounter difficulties in obtaining and maintaining suitably qualified staff. The success of The Company depends on the ability of management to interpret market data correctly and to interpret and respond to economic, market and other conditions to locate and adopt appropriate opportunities. No assurance can be given that individuals with the required skills will continue employment with The Company or that replacement personnel with comparable skills can be found. The Company will be dependent on the services of key executives, including the directors of The Company and a small number of highly skilled and experienced executives and personnel. Due to the relatively small size of The Company, the loss of these persons or The Company’s inability to attract and retain additional highly skilled employees may adversely affect its business and future operations.
Dividends
The Company currently intends to retain future earnings to finance the operation, development, and expansion of its business. The Company does not anticipate paying cash dividends on the Company Shares in the foreseeable future. Payment of future cash dividends, if any, will be at the discretion of the Company Board and will depend on the Company’s financial condition, results of operations, contractual restrictions, capital requirements, business prospects and other factors that the Company Board may consider relevant. Accordingly, investors will only see a return on their investment if the value of the Company Shares appreciates.
Discretion in the Use of Available Funds
Management will have broad discretion concerning the use of the available funds of the Company as well as the timing of their expenditures. As a result, shareholders and investors will be relying on the judgment of management of the Company on completion of the Arrangement for the application of the available funds of the Company (see “Available Funds and Principal Purposes” above). Management may use the available funds in ways that an investor may not consider desirable. The results and the effectiveness of the application of the available funds are uncertain. If the available funds are not applied effectively, the Company’s results of operations may suffer.
Potential Conflicts of Interest
Some of the directors and officers of the Company are engaged and will continue to be engaged as directors and officers of other companies in the search for additional business opportunities on behalf of such other corporations, and situations may arise where these directors and officers will be in direct competition with the Company. Some of the directors and officers of the Company are or may become directors or officers of other companies engaged in other business ventures.
Conflicts of interest, if any, which arise may be subject to and be governed by procedures prescribed by the Business Corporations Act (British Columbia) which require a director or officer of a corporation who is a party to or is a director or an officer of or has a material interest in any person who is a party to a material contract or proposed material contract with The Company to disclose his interest and to refrain from voting on any matter in respect of such contract unless otherwise permitted under the Business Corporations Act (British Columbia). Any decision made by any of such directors and officers involving the Company should be made in accordance with their duties and obligations to deal fairly and in good faith with a view to the best interests of the Company and its shareholders.
Insurance and Uninsured Risks
The Company’s business will continue to be subject to several risks and hazards generally, including general liability. Such occurrences could result in damage to property, inventory, facilities, personal injury or death, damage to the properties of the Company, or the properties of others, monetary losses, and possible legal liability. The Company may be subject to product liability and medical malpractice claims, which may adversely affect its operations. The Company’s industry is highly regulated, and the Company may be subject to regulatory scrutiny for violations of regulations and laws. The Company could be adversely affected by the time and cost involved with regulatory investigations even if it has operated in compliance with all laws. Investigations could also adversely affect the timely payment of receivables.
Although the Company will maintain insurance to protect against certain risks in such amounts as it considers to be reasonable, its insurance will not cover all the potential risks associated with its operations. The Company may also be unable to maintain insurance to cover these risks at economically feasible premiums. Insurance coverage may not continue to be available or may not be adequate to cover any resulting liability. The Company might also become subject to liability which may not be insured against or which the Company may elect not to insure against because of premium costs or other reasons. Losses from these events may cause the Company to incur significant costs that could have a material adverse effect upon its financial performance and results of operations.
Page | 16
|
AMENDED
MANAGEMENT’S DISCUSSION AND ANALYSIS
June 30, 2020 and 2019 (Tabular dollar amounts expressed in thousands of Canadian Dollars) |
|
Additional Capital
The development and the business (including acquisitions) of the Company may require additional financing, which may involve high transaction costs, dilution to shareholders, high interest rates or unfavorable terms and conditions. Failure to obtain sufficient financing may result in the delay or indefinite postponement of its business plans. As the Company will likely be unable to obtain traditional debt financing until it has a profitable and longer operating history, the initial primary source of funding available to the Company will consist of equity financing. There can be no assurance that additional capital or other types of financing will be available if needed or that, if available, the terms of such financing will be favorable to the Company.
Loss of Foreign Private Issuer Status
The Company may lose its foreign private issuer status in the future, which could result in significant additional costs and expenses. As a foreign private issuer, as defined in Rule 3b-4 under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), the Company is currently exempt from certain of the provisions of the U.S. federal securities laws. For example, an issuer with total assets in excess of US$10 million and whose outstanding equity securities are held by 2,000 or more persons, or 500 or more persons who are not “accredited investors”, must register such securities as a class under the Exchange Act. However, as a foreign private issuer subject to Canadian continuous disclosure requirements, the Company may claim the exemption from registration under the Exchange Act provided by Rule threeg3-2(b) thereunder, even if these thresholds are exceeded. To be considered a foreign private issuer, The Company must satisfy a United States shareholder test (not more than 50% of the voting securities of a company must be held by residents of the United States) if any of the following disqualifying conditions apply: (i) the majority of the Company’s executive officers or directors are United States citizens or residents; (ii) more than 50 percent of The Company’s assets are located in the United States; or (iii) The Company’s business is administered principally in the United States. Based on information available as at the date hereof, approximately 26.7% of the Company’s outstanding voting securities are anticipated to be directly or indirectly held of record by residents of the United States. If the Company loses its status as a foreign private issuer, these regulations could apply and it could also be required to commence reporting on forms required of U.S. domestic companies, such as Forms 10-K, 10-Q, and 8-K. It could also become subject to U.S. proxy rules, and certain holders of its equity securities could become subject to the insider reporting and “short swing” profit rules under Section 16 of the Exchange Act. In addition, any securities issued by the Company if it loses foreign private issuer status would become subject to certain rules and restrictions under the Securities Act of 1933, as amended, even if they are issued or resold outside the United States. Compliance with the additional disclosure, compliance and timing requirements under these securities laws would likely result in increased expenses and would require the Company’s management to devote substantial time and resources to comply with new regulatory requirements.
United States Operations and Exchange Rate Fluctuations
All the Company’s revenue generating operations will occur in the United States. The Company will be subject to a number of risks associated with its operations that may increase liability and costs and require significant management attention. These risks include:
• | compliance with laws of the United States that will apply to the Company’s United States operations, including lawful access, privacy laws and anti-corruption laws; |
• | instability in economic or political conditions, including inflation, recession, and political uncertainty; |
• | potential adverse tax consequences; and |
• | litigation in United States courts. |
In addition, the Company will be exposed to foreign exchange risk as a result of substantially all its revenue generating operations taking place in the United States and thus, revenues and expenses being earned and paid in United States dollars while the Company reports its financial statements in Canadian dollars. If the Canadian dollar appreciates relative to the United States dollar, the Company’s Canadian dollar expenses and revenues will decrease when translated from United States dollars for financial reporting purposes. Conversely, if the Canadian dollar depreciates relative to the United States dollar, the Company’s Canadian dollar expenses and revenues will increase when translated from United States dollars for financial reporting purposes. In addition, exchange rate fluctuations may affect the costs that The Company incurs in its operations. The appreciation of non-United States dollar currencies against the United States dollar can increase the cost of operations in United States dollar terms. Foreign exchange rate fluctuations may materially affect the Company’s financial condition and results of operations in future periods.
The Company will continue to translate the assets and liabilities of its United States dollar functional currency subsidiaries into Canadian dollars using exchange rates in effect at the end of each period. Revenue and expenses for these subsidiaries are translated using average exchange rates that approximate those in effect during the period. The Company will continue to maintain cash balances in both United States and Canadian dollars, but management anticipates that it will not purchase any securities or financial instruments to speculate on or hedge against a rise or fall in the value of the United States dollar.
Page | 17
|
AMENDED
MANAGEMENT’S DISCUSSION AND ANALYSIS
June 30, 2020 and 2019 (Tabular dollar amounts expressed in thousands of Canadian Dollars) |
|
COVID-19 Pandemic
On March 11, 2020, the World Health Organization declared the outbreak of a novel strain of coronavirus (“COVID-19”) a global pandemic. In response to the outbreak, governmental authorities in the United States and internationally have introduced various recommendations and measures to try to limit the pandemic, including travel restrictions, border closures, non-essential business closures, quarantines, self-isolations, shelters-in-place, and social distancing. The COVID-19 outbreak and the response of governmental authorities to try to limit it are having a significant impact on the private sector and individuals, including unprecedented business, employment, and economic disruptions.
Although the Company has taken steps to mitigate the impact of COVID-19, the continued presence and spread of COVID-19 nationally and globally could have a material adverse impact on the Company’s business, operations, and financial results and position, including through employee attrition, disruptions to the Company’s supply chains and sales channels, restrictions of operations at our retail stores, changes in the number of Americans with health insurance resulting in a change in demand for the Company’s products, as well as a deterioration of general economic conditions including a possible national or global recession. Due to the speed with which the COVID-19 situation is developing and the uncertainty of its magnitude, outcome, and duration, it is not possible to estimate its impact on the Company’s business, operations, financial results and position or prospects at this time.
The Company continues to monitor the situation and work with its stakeholders (including customers, employees, and suppliers) in order to assess further possible implications to its business, supply chain, and customers, and, where practicable, mitigate adverse consequences and responsibly address this global pandemic.
The actual and threatened spread of COVID-19 globally could adversely affect global economies and financial markets, resulting in a prolonged economic downturn and a decline in the value of the Company’s share price. The extent to which COVID-19 (or any other disease, epidemic, or pandemic) impacts business activity or financial results, and the duration of any such negative impact, will depend on future developments, which are highly uncertain and cannot be predicted, including new information which may emerge concerning COVID-19 and the actions required to contain or treat its impact, among others.
Page | 18
Exhibit 99.109
Notice to Reader
As described in Note 16, the Company identified certain errors and adjustments, as set out below.
1. | Recognition of deferred revenue relating to rental billings in the condensed consolidated interim financial statements as at December 31, 2019 and September 30, 2019, and for the three months ended December 31, 2019 and 2018. |
2. | Classification of expenses in the condensed consolidated interim statements of (loss) and comprehensive (loss) income for the three months ended December 31, 2019 and 2018 . |
3. | Classification of leases and equipment loans in the condensed consolidated interim statements of financial position as at December 31, 2019 and September 30, 2019, and related interest expense in the condensed consolidated interim statements of (loss) and comprehensive (loss) income for the three months ended December 31, 2019 and 2018 |
4. | Recognition of goodwill impairment in the condensed consolidated interim statements of (loss) and comprehensive (loss) income and cash flows for the three months ended December 31, 2018 that had previously been recorded in the year ended September 30, 2019. |
5. | Recognition and measurement of assets, liabilities and consideration relating to the business acquisitions that were previously reported in the previously issued condensed consolidated interim financial statements as at and for the three months ended December 31, 2019 and 2018. |
6. | During the year ended September 30, 2020, the Company revised its estimate related to reserve for expected credit losses, and presentation of certain operating expenses under discontinued operations. The effects of these changes are reflected in the condensed consolidated interim statement of financial position as at December 31, 2019, and condensed consolidated interim statement of (loss) and comprehensive (loss) income and cash flows for the three months ended December 31, 2019 and 2018. |
7. | Certain accompanying notes to the condensed consolidated interim financial statements as at December 31, 2019 and September 30, 2019, and for the three months ended December 31, 2019 and 2018. |
Accordingly, the previously issued condensed consolidated interim financial statements as at and for the three months ended December 31, 2019 have been withdrawn and are refiled dated May 10, 2021.
Protech Home Medical Corp.
Amended and Restated
Condensed Consolidated Interim Financial Statements
2020 First Quarter
For the Three Months Ended
December 31, 2019 and 2018
(UNAUDITED)
(Expressed in Canadian dollars)
TABLE OF CONTENTS
Amended and Restated Condensed Consolidated Interim Statements of Financial Position | Page 3 |
Amended and Restated Condensed Consolidated Interim Statements of (Loss) and Comprehensive (Loss) Income | Page 4 |
Amended and Restated Condensed Consolidated Interim Statements of Changes in Shareholders’ Equity | Page 5 |
Amended and Restated Condensed Consolidated Interim Statements of Cash Flows | Page 6 |
Notes to the Amended and Restated Condensed Consolidated Interim Financial Statements | Pages 7-26 |
PROTECH HOME MEDICAL CORP.
AMENDED AND RESTATED CONDENSED CONSOLIDATED INTERIM STATEMENT OF
FINANCIAL POSITION AS AT DECEMBER 31, 2019
(UNAUDITED)
(Expressed in thousands of Canadian Dollars, except per share amounts)
Notes |
As at
December 31, 2019 |
As at
September 30, 2019 |
||||||||||
ASSETS | ||||||||||||
Current Assets | ||||||||||||
Cash | $ | 8,363 | $ | 12,855 | ||||||||
Accounts receivable, net | 4 | 9,049 | 12,390 | |||||||||
Inventory, net | 5 | 6,646 | 4,738 | |||||||||
Prepaid expenses and other current assets | 854 | 800 | ||||||||||
Total current assets | 24,912 | 30,783 | ||||||||||
Long-term assets | ||||||||||||
Property and equipment and right of use assets, net | 6 | 26,694 | 19,496 | |||||||||
Goodwill | 7 | 2,826 | 1,881 | |||||||||
Intangible assets, net | 7 | 3,994 | 2,911 | |||||||||
Deposits | 100 | 94 | ||||||||||
Total long-term assets | 33,614 | 24,382 | ||||||||||
TOTAL ASSETS | $ | 58,526 | $ | 55,165 | ||||||||
LIABILITIES | ||||||||||||
Current Liabilities | ||||||||||||
Accounts payable | $ | 8,945 | $ | 8,122 | ||||||||
Accrued liabilities | 4,992 | 2,319 | ||||||||||
Deferred revenue | 16 | 1,993 | 1,904 | |||||||||
Current portion of equipment loans | 8 | 8,241 | 8,179 | |||||||||
Current portion of lease liabilities | 8 | 2,715 | 557 | |||||||||
Total current liabilities | 26,886 | 21,081 | ||||||||||
Long-Term Liabilities | ||||||||||||
Debentures | 8 | 14,696 | 13,966 | |||||||||
Equipment loans | 8 | 1,010 | 1,496 | |||||||||
Lease liabilities | 8 | 4,526 | 1,377 | |||||||||
Other long-term liabilities | 3 | 324 | - | |||||||||
Total long-term liabilities | 20,556 | 16,839 | ||||||||||
TOTAL LIABILITIES | 47,442 | 37,920 | ||||||||||
SHAREHOLDERS’ EQUITY | ||||||||||||
Share capital | 198,196 | 198,196 | ||||||||||
Contributed surplus | 21,432 | 21,390 | ||||||||||
Accumulated deficit | (221,009 | ) | (215,344 | ) | ||||||||
Accumulated other comprehensive income | 12,465 | 13,003 | ||||||||||
TOTAL SHAREHOLDERS’ EQUITY | 11,084 | 17,245 | ||||||||||
TOTAL LIABILITIES AND SHAREHOLDERS’ EQUITY | $ | 58,526 | $ | 55,165 |
APPROVED ON BEHALF OF THE BOARD: | |
signed “Donald Ewing” | signed “Mark Greenberg” |
The accompanying notes are an integral part of these condensed consolidated interim financial statements.
Page | 3
PROTECH HOME MEDICAL CORP.
AMENDED AND RESTATED CONDENSED CONSOLIDATED INTERIM STATEMENTS OF
(LOSS) AND COMPREHENSIVE (LOSS) INCOME FOR THE THREE MONTHS ENDED DECEMBER 31, 2019 AND 2018
(UNAUDITED)
(Expressed in thousands of Canadian Dollars, except per share amounts)
Notes |
Three Months ended
December 31, 2019 |
Three Months ended
December 31, 2018 |
||||||||||
Revenue | ||||||||||||
Sales of medical equipment and supplies | $ | 9,358 | $ | 9,314 | ||||||||
Rentals of medical equipment | 12,488 | 11,195 | ||||||||||
Total revenue | 21,846 | 20,509 | ||||||||||
Inventory sold | 6,072 | 6,012 | ||||||||||
Operating expenses | 11 | 14,417 | 10,761 | |||||||||
Depreciation | 6 | 4,451 | 3,167 | |||||||||
Amortization of intangible assets | 7 | 257 | 151 | |||||||||
Stock-based compensation | 9 | 42 | 530 | |||||||||
Impairment of goodwill | 7 | - | 531 | |||||||||
Gain on sale of property and equipment | (79 | ) | (2 | ) | ||||||||
Other expense (income) | (141 | ) | 6 | |||||||||
Operating loss from continuing operations | (3,173 | ) | (647 | ) | ||||||||
Financing expenses | ||||||||||||
Interest expense on debentures | 300 | 162 | ||||||||||
Interest expense on equipment loans | 145 | 109 | ||||||||||
Interest expense on lease liabilities | 159 | 25 | ||||||||||
Accretion expense | - | 100 | ||||||||||
Change in fair value of debentures and derivative | 8 | 730 | (68 | ) | ||||||||
Loss before taxes from continuing operations | (4,507 | ) | (975 | ) | ||||||||
(Recovery of) income taxes | - | (58 | ) | |||||||||
Net loss from continuing operations | (4,507 | ) | (917 | ) | ||||||||
Discontinued operations: | ||||||||||||
Net (loss) income from discontinued operations | 14 | (1,158 | ) | 521 | ||||||||
Net loss | $ | (5,665 | ) | $ | (396 | ) | ||||||
Other comprehensive (loss) income | ||||||||||||
Cumulative translation adjustment | (538 | ) | 1,455 | |||||||||
Comprehensive (loss) income | $ | (6,203 | ) | $ | 1,059 | |||||||
Net income (loss) per share | ||||||||||||
Basic | 12 | $ | (0.07 | ) | $ | (0.00 | ) | |||||
Diluted | 12 | $ | (0.07 | ) | $ | (0.00 | ) | |||||
Weighted average number of common shares outstanding: | ||||||||||||
Basic | 83,589 | 80,853 | ||||||||||
Diluted | 83,589 | 80,853 |
The accompanying notes are an integral part of these condensed consolidated interim financial statements.
Page | 4
PROTECH HOME MEDICAL CORP.
AMENDED AND RESTATED CONDENSED CONSOLIDATED INTERIM STATEMENTS OF
CHANGES IN SHAREHOLDERS’ EQUITY FOR THREE MONTHS ENDED DECEMBER 31, 2019 AND 2018
(UNAUDITED)
(Expressed in thousands of Canadian Dollars)
Accumulated | ||||||||||||||||||||||||
other | Total | |||||||||||||||||||||||
Number of | Share | Contributed | Accumulated | comprehensive | Shareholders’ | |||||||||||||||||||
Shares (000’s) | capital | surplus | Deficit | income | Equity | |||||||||||||||||||
Balance September 30, 2018 | 75,819 | $ | 193,951 | $ | 19,041 | $ | (206,055 | ) | $ | 12,332 | $ | 19,269 | ||||||||||||
Correction for deferred revenue (Note 16) | - | - | - | (1,904 | ) | - | (1,904 | ) | ||||||||||||||||
Restated Balance September 30, 2018 | 75,819 | 193,951 | 19,041 | (207,959 | ) | 12,332 | 17,365 | |||||||||||||||||
Net loss | - | - | - | (396 | ) | - | (396 | ) | ||||||||||||||||
Other comprehensive income | - | - | - | - | 1,455 | 1,455 | ||||||||||||||||||
Stock-based compensation (Note 9) | - | - | 530 | - | - | 530 | ||||||||||||||||||
Stock issued with acquisition (Note 3) | 227 | 164 | - | - | - | 164 | ||||||||||||||||||
Proceeds from issuance of shares (Note 9) | 7,483 | 4,120 | - | - | - | 4,120 | ||||||||||||||||||
Underwriter options issued (Note 9) | - | (135 | ) | 135 | - | - | - | |||||||||||||||||
Balance December 31, 2018 | 83,529 | $ | 198,100 | $ | 19,706 | $ | (208,355 | ) | $ | 13,787 | $ | 23,238 | ||||||||||||
Balance September 30, 2019 | 83,589 | $ | 198,196 | $ | 21,390 | $ | (213,440 | ) | $ | 13,003 | $ | 19,149 | ||||||||||||
Correction for deferred revenue (Note 16) | - | - | - | (1,904 | ) | - | (1,904 | ) | ||||||||||||||||
Restated Balance, September 30, 2019 | 83,589 | 198,196 | 21,390 | (215,344 | ) | 13,003 | 17,245 | |||||||||||||||||
Net loss | - | - | - | (5,665 | ) | - | (5,665 | ) | ||||||||||||||||
Other comprehensive loss | - | - | - | - | (538 | ) | (538 | ) | ||||||||||||||||
Stock-based compensation (Note 9) | - | - | 42 | - | - | 42 | ||||||||||||||||||
Balance December 31, 2019 | 83,589 | $ | 198,196 | $ | 21,432 | $ | (221,009 | ) | $ | 12,465 | $ | 11,084 |
The accompanying notes are an integral part of these condensed consolidated interim financial statements.
Page | 5
PROTECH HOME MEDICAL CORP.
AMENDED AND RESTATED CONDENSED CONSOLIDATED INTERIM STATEMENTS OF
CASH FLOWS FOR THREE MONTHS ENDED DECEMBER 31, 2019 AND 2018
(UNAUDITED)
(Expressed in thousands of Canadian Dollars)
Three months ended | Three months ended | |||||||||||
Notes | December 31, 2019 | December 31, 2018 | ||||||||||
Operating activities | ||||||||||||
Net loss from continuing operations | $ | (4,507 | ) | $ | (917 | ) | ||||||
Net (loss) income from discontinued operations | (1,158 | ) | 521 | |||||||||
Adjustments to reconcile net income to net cash provided by operating activities: | ||||||||||||
Depreciation and amortization | 4,708 | 3,318 | ||||||||||
Depreciation and amortization – discontinued operations | - | 100 | ||||||||||
Accretion expense | - | 100 | ||||||||||
Interest expense on leases and loans | 304 | 134 | ||||||||||
Change in fair value of debentures and derivative | 8 | 735 | (68 | ) | ||||||||
Gain on disposal of property and equipment | (79 | ) | (2 | ) | ||||||||
Impairment of goodwill | - | 531 | ||||||||||
Stock-based compensation | 9 | 42 | 530 | |||||||||
Bad debt expense | 11 | 3,600 | 1,322 | |||||||||
Bad debt expense – discontinued operations | - | 21 | ||||||||||
Change in working capital: | ||||||||||||
Net increase in accounts receivable | 495 | (2,730 | ) | |||||||||
Net increase in inventory | (242 | ) | (509 | ) | ||||||||
Net increase in prepaid expenses and other current assets | (11 | ) | (694 | ) | ||||||||
Net increase in trade payables and accrued liabilities | 862 | 948 | ||||||||||
Net cash flows provided by operating activities | 4,749 | 2,605 | ||||||||||
Investing activities | ||||||||||||
Purchases of property and equipment | (43 | ) | (67 | ) | ||||||||
Proceeds from sale of property and equipment | 92 | 2 | ||||||||||
Cash paid for acquisitions | 3 | (4,423 | ) | (526 | ) | |||||||
Net cash flow used in investing activities | (4,374 | ) | (591 | ) | ||||||||
Financing activities | ||||||||||||
Repayments of long-term debt | (5,250 | ) | (4,615 | ) | ||||||||
Proceeds from issuance of common shares | - | 4,120 | ||||||||||
Net cash flow received (used in) financing activities | (5,250 | ) | (495 | ) | ||||||||
Net increase (decrease) in cash | (4,875 | ) | 1,519 | |||||||||
Effect of exchange rate changes on cash held in foreign currencies | 383 | 399 | ||||||||||
Cash, beginning of period | 12,855 | 4,331 | ||||||||||
Cash, end of period | $ | 8,363 | $ | 6,249 |
The accompanying notes are an integral part of these condensed consolidated interim financial statements.
Page | 6
PROTECH HOME MEDICAL CORP.
NOTES TO THE AMENDED AND RESTATED CONDENSED CONSOLIDATED
INTERIM FINANCIAL STATEMENTS
(UNAUDITED)
(Tabular dollar amounts expressed in thousands of Canadian Dollars, except per share amounts)
1. | Nature of operations |
Reporting entity
Protech Home Medical Corp. (“Protech” or the “Company”) was incorporated under the Business Corporations Act (Alberta) on March 5, 1993. On December 30, 2013, the Company was continued into British Columbia, Canada. The address of the registered office is Suite 2800, 666 Burrard St., Vancouver, BC V6C 2Z7. The head office is located at 1019 Town Drive, Wilder, Kentucky, United States. The Company is a participating Medicare provider that provides i) nebulizers, oxygen concentrators, and CPAP and BiPAP units; ii) traditional and non-traditional durable medical respiratory equipment and services; and iii) non-invasive ventilation equipment, supplies and services. The Company has embarked on an acquisition strategy for additional revenue and profit growth. The Company’s shares are traded on the TSX Venture Exchange under the symbol PTQ. The stock is also traded over the counter in the United States under the symbol PTQQF.
On July 29, 2019, the Company sold all the assets of one of its subsidiaries, Patient Home Monitoring, Inc. The consolidated financial statements and the notes reflect the Patient Home Monitoring, Inc. as discontinued operations. Prior year amounts have been reclassified in order to be comparable to the current period presentation.
Share consolidation
Effective December 31, 2018, the Company consolidated its common shares on the basis of one (1) new post-consolidation common share for every five (5) pre-consolidation common shares. The consolidation will affect shareholders uniformly, including holders of outstanding incentive stock options, warrants and other securities convertible into exercisable for common shares on the effective date.
Basis of measurement
These consolidated financial statements have been prepared on a going concern basis that assumes that the Company will continue its operations for the foreseeable future and be able to realize its assets and discharge its liabilities and commitments in the normal course of operation.
2. | Summary of significant accounting policies |
Unreserved statement of compliance
These unaudited condensed consolidated interim financial statements have been prepared in accordance with International Accounting Standard (IAS) 34, Interim Financial Reporting using accounting policies consistent with International Financial Reporting Standards (IFRS) as issued by the International Accounting Standards Board. These condensed consolidated interim financial statements do not include all the disclosures required in annual consolidated financial statements and should be read in conjunction with the Company’s audited consolidated financial statements for the years ended September 30, 2019 and 2018.
Except as noted below, the Company has followed the same basis of presentation, accounting policies and method of computation for these condensed consolidated interim financial statements as disclosed in the annual audited consolidated financial statements for the years ended September 30, 2019 and 2018.
The unaudited condensed consolidated interim financial statements were approved and authorized for issuance by the Board of Directors on May 7, 2021.
These unaudited condensed consolidated interim financial statements, which are presented in Canadian dollars, have been prepared under the historical cost convention, as modified by the measurement at fair values of certain financial assets and financial liabilities.
Page | 7
PROTECH HOME MEDICAL CORP.
NOTES TO THE AMENDED AND RESTATED CONDENSED CONSOLIDATED
INTERIM FINANCIAL STATEMENTS
(UNAUDITED)
(Tabular dollar amounts expressed in thousands of Canadian Dollars, except per share amounts)
Critical accounting estimates
The following are the key estimate and assumption uncertainties that have a significant risk of resulting in a material adjustment within the next financial year:
The preparation of financial statements in conformity with IFRS requires management to make certain estimates, judgments, and assumptions concerning the future. The Company’s management reviews these estimates, judgments, and assumptions on an ongoing basis, based on experience and other factors, including expectations of future events that are believed to be reasonable under the circumstances. Revisions to estimates are adjusted prospectively in the period in which the estimates are revised.
Estimates where management has made subjective judgments and where there is significant risk of material adjustments to assets and liabilities in future accounting periods include fair value measurements for financial instruments and share-based transactions, useful lives and impairment of non-financial assets (property and equipment and intangible assets), provision for expected credit losses, fair value measurements for assets and liabilities acquired in business acquisition, and calculation of deferred taxes
Revenue recognition
Revenues are billed to and collections are received from both third-party insurers and patients. Because of continuing changes in the health care industry and third-party reimbursement, the consideration receivable from these insurance companies is variable as these billings can be challenged by the payer. Therefore, the amount billed by the Company is reduced by an estimate of the amount that the Company believes is an allowable charge to be ultimately allowed by the insurance contract. The above estimate involves significant judgment including an analysis of past collections and historical modification rates. Management regularly reviews the actual claims approved by the insurance companies, making adjustments as required.
Sales of medical equipment and supplies
The Company sells equipment, replacement parts, and supplies to customers and recognizes revenue based on contractual payment rates as determined by the payors at the point in time where control of the good or service is transferred through delivery to the customer. The payors are generally charged at the time that the product is sold.
The transaction price on equipment sales is the amount that the Company expects to receive in exchange for the goods and services provided. Due to the nature of the industry, gross charges are retail charges and generally do not reflect what the Company is ultimately paid. As such, the transaction price is constrained for the difference between the gross charge and what is estimated to be collected from payors and from patients. The transaction price therefore is predominantly based on contractual payment rates as determined by the payors. The Company does not generally contract with uninsured customers but does offer point-of-sale payments at retail outlets. The payment terms and conditions of customer contracts vary by customer type and the products and services offered.
The Company determines its estimates of contractual allowances and discounts based upon contractual agreements and historical experience. While the rates are fixed for the product or service with the customer and the payors, such amounts typically include co-payments, co-insurance and deductibles, which vary in amounts, and are due from secondary insurance and/or the patient. The Company includes in the transaction price only the amount that the Company expects to be entitled, which is substantially all of the payor billings at contractual rates.
Due to the nature of the industry and the reimbursement environment in which the Company operates, certain estimates are required to record net revenue and accounts receivable at their net realizable values. Inherent in these estimates is the risk that they will have to be revised or updated as additional information becomes available. Specifically, the complexity of many third-party billing arrangements and the uncertainty of reimbursement amounts for certain services from certain payors may result in adjustments to amounts originally recorded. Such adjustments are typically identified and recorded at the point of claim approval or denial.
Returns and refunds are not accepted on equipment sales. The Company does not offer warranties to customers in excess of the manufacturer’s warranty. Any taxes due upon sale of the products or services are not recognized as revenue. The Company does not have any partially or unfilled performance obligations related to contracts with customers and as such, the Company has no contract liabilities as of December 31, 2019.
Rental of medical equipment
The Company rents medical equipment to customers for a fixed monthly amount on a month-to-month basis. The customer generally has the right to cancel the lease at any time during the rental period. The Company considers these rentals to be operating leases. Under IFRS 16, “Leases”, the Company recognizes rental revenue on operating leases on a straight-line basis over the contractual lease term, resulting in deferred revenue for the portion of the monthly rent that is after the consolidated statement of financial position date. The term begins on the date products are delivered to patients, and revenues are recorded at amounts estimated to be received under reimbursement arrangements with third-party payors, including Medicare, private commercial payors, and Medicaid. Certain customer co-payments are included in revenue when considered probable of payment.
Page | 8
PROTECH HOME MEDICAL CORP.
NOTES TO THE AMENDED AND RESTATED CONDENSED CONSOLIDATED
INTERIM FINANCIAL STATEMENTS
(UNAUDITED)
(Tabular dollar amounts expressed in thousands of Canadian Dollars, except per share amounts)
Due to the nature of the industry and the reimbursement environment in which the Company operates, certain estimates are required to record net revenue and accounts receivable at their net realizable values. Inherent in these estimates is the risk that they will have to be revised or updated as additional information becomes available. Specifically, the complexity of many third-party billing arrangements and the uncertainty of reimbursement amounts for certain services from certain payors may result in adjustments to amounts originally recorded. Such adjustments are typically identified and recorded at the point of cash application or claim denial.
Valuation of accounts receivable
The measurement of expected credit losses considers information about past events and current conditions. Forward looking macro-economic factors are incorporated into the risk parameters, such as unemployment rates, inflation, and interest rates. Significant judgments are made in order to incorporate forward-looking information into the estimation of allowances and may result in changes to the provision from period to period which may significantly affect our results of operations.
The Company estimates that a certain portion of receivables from customers may not be collected and maintains an allowance for doubtful accounts. The Company evaluates the net realizable value of accounts receivable as of the date of the consolidated balance sheets. Specifically, the Company considers historical realization data, including current and historical cash collections, accounts receivable aging trends, other operating trends and relevant business conditions. Because of continuing changes in the health care industry and third-party reimbursement, it is possible that the estimates could change, which could have a material impact on the operations and cash flows. If circumstances related to certain customers change or actual results differ from expectations, our estimate of the recoverability of receivables could fluctuate from that provided for in our consolidated financial statements. A change in estimate could impact bad debt expense and accounts receivable.
Valuation of inventories
Inventory is recorded at the lower of cost or market. Inventory is expensed through cost of inventory sold when shipped to customers or transferred to property and equipment when rented to customers. The Company estimates that a certain portion of inventory purchased may be excess, obsolete, or non-saleable. The Company maintains a provision for obsolescence for these items. Valuation of the inventory was assessed at year-end, and all inventory items which more than two years are old and not supported by recent sales were provided for 50% in accordance with Company’s policy.
Convertible debentures
In accordance with the substance of the contractual arrangement, convertible debentures are compound financial instruments that are accounted for separately by their components: a financial liability and an equity instrument. The identification of convertible debenture components is based on interpretations of the substance of the contractual arrangement and therefore requires judgment from management. The separation of the components affects the initial recognition of the convertible debenture at issuance and the subsequent recognition of interest on the liability component. The determination of the fair value of the liability is also based on a number of assumptions, including contractual future cash flows, discount factors, and the presence of any derivative financial instruments.
Impairment of property and equipment and intangibles
Property plant and equipment and intangibles are reviewed for impairment whenever events or changes in circumstances indicate that their carrying amounts exceed their recoverable amounts. The assessment of the recoverable amount requires estimates and assumptions such as discount rates, exchange rates, future capital requirements and future operating performance.
Share based payments and warrants
The amounts used to estimate fair values of stock options and warrants issued are based on estimates of future volatility of the Company’s share price, expected lives of the options and warrants, expected dividends to be paid by the Company and other relevant assumptions. By their nature, these estimates are subject to measurement uncertainty and the effect of changes in such estimates on the consolidated financial statements of future periods could be significant.
Page | 9
PROTECH HOME MEDICAL CORP.
NOTES TO THE AMENDED AND RESTATED CONDENSED CONSOLIDATED
INTERIM FINANCIAL STATEMENTS
(UNAUDITED)
(Tabular dollar amounts expressed in thousands of Canadian Dollars, except per share amounts)
Income taxes
Significant judgment is required in determining the provision for future income taxes. There are many transactions and calculations undertaken during the ordinary course of business for which the ultimate tax determination is uncertain. The Company recognizes liabilities and contingencies for anticipated tax audit issues based on the Company’s current understanding of the tax law. For matters where it is probable that an adjustment will be made, the Company records its best estimate of the tax liability including the related interest and penalties in the current tax provision. Management believes they have adequately provided for the probable outcome of these matters; however, the final outcome may result in a materially different outcome than the amount included in the tax liabilities.
In addition, the Company recognizes deferred tax assets relating to tax losses carried forward to the extent there are sufficient taxable temporary differences (deferred tax liabilities) relating to the same taxation authority and the same taxable entity against which the unused tax losses can be utilized. Utilization of the tax losses depends on the ability of the taxable entity to satisfy certain tests at the time the losses are recouped.
Useful lives of property and equipment
The Company reviews the estimates for useful lives on an annual basis, or more frequently if events during the year indicate that a change may be required, with consideration given to technological obsolescence and other relevant business factors. A change in management’s estimate could impact depreciation/amortization expense and carrying value of property and equipment and intangible assets.
Lease liabilities
Estimate of lease term
When the Company recognizes a lease, it assesses the lease term based on the conditions of the lease and determines whether it will extend the lease at the end of the lease contract or exercise an early termination option. As it is not reasonably certain that the extension or early termination options will be exercised, the Company determined that the term of its leases are the lesser of original lease term or the life of the leased asset. This significant estimate could affect future results if the Company extends the lease or exercises an early termination option.
Incremental borrowing rate
When the Company recognizes a lease, the future lease payments are discounted using the Company’s incremental borrowing rate. This significant estimate impacts the carrying amount of the lease liabilities and the interest expense recorded on the consolidated statement of loss and comprehensive loss.
Property and equipment
Property and equipment is stated at cost less accumulated depreciation. Major renewals and improvements are charged to the property accounts, while maintenance, and repairs which do not extend the useful life of the respective assets, are expensed as incurred. Depreciation is computed using the straight-line method over the estimated useful lives of the respective assets.
Page | 10
PROTECH HOME MEDICAL CORP.
NOTES TO THE AMENDED AND RESTATED CONDENSED CONSOLIDATED
INTERIM FINANCIAL STATEMENTS
(UNAUDITED)
(Tabular dollar amounts expressed in thousands of Canadian Dollars, except per share amounts)
The estimated useful lives of the assets are as follows:
Description | Estimated Useful Life | |
Rental equipment | 1-5 years | |
Computer equipment | 3-5 years | |
Office furniture and fixtures | 5-10 years | |
Leasehold improvements | Life of lease (1-7 years) | |
Right-of-use vehicles | 5 years | |
Right of use real estate leases | Life of lease (1-6 years) | |
Depreciation of rental equipment commences once it has been deployed to a patient’s address and put in use. Property and equipment and other non-current assets with definite useful lives are tested for impairment whenever events or changes in circumstances indicate that their carrying amount may not be recoverable.
Intangible assets
The Company has recorded various intangible assets consisting primarily of non-compete agreements, trademarks, customer contracts and customer relationships. Non-compete agreements are the value associated with the non-compete agreements entered by the sellers of purchased companies. Trademarks are the purchase price allocation for the value associated with the trade name of the acquired company. Customer contracts are comprised of the purchase price allocation of the present value of expected future customer billings based on the statistical life of a customer. Customer relationships are the value given in the purchase price allocation to the long-term associations with referral sources such as doctors, medical centers, etc. Finite life intangible assets are amortized on a straight-line basis over the estimated useful lives of the related assets as follows:
Description | Estimated Useful Life | |
Non-compete agreements | 5 Years | |
Trademarks | 10 Years | |
Customer contracts | 2 Years | |
Customer relationships | 10 Years |
Gains or losses arising from de-recognition of an intangible asset are measured as the difference between the net disposal proceeds and the carrying amount of the asset and are recognized in the Statements of Net Loss and Comprehensive Loss when the asset is derecognized.
The Company reviews the estimates for useful lives on an annual basis, or more frequently if events during the year indicate that a change may be required, with consideration given to technological obsolescence and other relevant business factors. A change in management’s estimate could impact depreciation/amortization expense and the carrying value of property and equipment and intangible assets.
New standards and interpretations adopted
IFRS 16, Leases
Effective October 1, 2019, the Company adopted IFRS 16, Leases. IFRS 16 eliminates the distinction between operating and finance leases from the perspective of the lessee. All contracts that meet the definition of a lease will be recorded in the statement of financial position with a “right of use” asset and a corresponding liability at the present value of the future lease payments using the lessee’s incremental borrowing rate of 8%.
The Company elected to adopt IFRS 16 using the modified retrospective approach. Under this approach, the Company will not restate its comparative figures, but will recognize the cumulative effect of adopting IFRS 16 as an adjustment to opening statement of financial position, with the recognition of $3,456,000 of right of use assets and finance lease obligations on October 1, 2019. On the condensed consolidated statement of income, the impact of the adoption of IFRS 16 is to increase depreciation expense and interest expense, and decrease operating expenses.
Page | 11
PROTECH HOME MEDICAL CORP.
NOTES TO THE AMENDED AND RESTATED CONDENSED CONSOLIDATED
INTERIM FINANCIAL STATEMENTS
(UNAUDITED)
(Tabular dollar amounts expressed in thousands of Canadian Dollars, except per share amounts)
The Company elected to apply the practical expedient to exclude recognition of right of use assets and lease liabilities for leases under 12 months in duration or for which the lease term ends within 12 months of initial application for leases, and for low-value assets. The Company also elected to apply IFRS 16 only to the contracts that were previously identified as leases. Lease expenses for short-term leases totaled $225,000 for the three months ended December 31, 2019. Contracts that were not identified as leases under IAS 17 Leases will not be reassessed for whether a lease exists.
As of October 1, 2019, approximately $1,934,000 of vehicles were already accounted for as lease liabilities.
Functional currency
The consolidated financial statements of the Company are presented in Canadian dollars, which is the parent Company’s presentation currency but which differs from its functional currency, the US Dollar, which was determined using management’s judgment that the primary economic environment in which it will derive its revenue and expenses incurred to generate those revenues is the United States. Management has exercised judgment in selecting the functional currency of each of the entities that it consolidates based on the primary economic environment in which the entity operates and in reference to the various indicators including the currency that primarily influences or determines the selling prices of goods and services and the cost of production, including labor, material and other costs and the currency whose competitive forces and regulations mainly determine selling prices.
Business combinations
In accordance with IFRS 3 – Business Combination (“IFRS 3”), a transaction is recorded as a business combination if the significant assets, liabilities, or activities in addition to property and related mortgage debt assumed constitute a business. A business is defined as an integrated set of activities and assets, capable of being conducted and managed for the purpose of providing a return, lower costs, or other economic benefits. Where there are no such integrated activities, the transaction is treated as an asset acquisition. The estimation of the fair value of the assets and liabilities acquired in an acquisition is subject to judgement concerning estimating market values and predicting future events. These values are uncertain and can materially impact the carrying value of the acquired assets and the amount allocated to goodwill.
Recognition and initial measurement
The Company recognizes financial assets when it becomes party to the contractual provisions of the instrument. Financial assets are measured initially at their fair value plus, in the case of financial assets not subsequently measured at fair value through profit or loss, transaction costs that are directly attributable to their acquisition. Transaction costs attributable to the acquisition of financial assets subsequently measured at fair value through profit or loss are expensed in the consolidated statement of (loss) and comprehensive income (loss) when incurred.
3. | Acquisition of businesses and purchase accounting |
Acquisition of Cooley Medical Equipment, Inc. (Cooley)
Effective October 1, 2019, the Company, through PHM Logistics Corporation, entered into a purchase agreement to acquire the shares of Cooley Medical Equipment, Inc. (Cooley), a Kentucky company in the same industry as the Company. The purchase price was $3,617,000, of which $3,089,000 was paid in cash at closing ($2,408 of which was paid to US Department of Justice against settlement of a litigation pending against the Cooley as on the date of acquisition, on behalf of seller), and the balance of $528,000 to be paid on the 18-month anniversary of the acquisition discounted at 3.86%. Of the cash portion of the purchase price, $2,416,000 was paid to the US Department of Justice to pay off a settlement agreement into which Cooley had entered. The Company has determined that the transaction is an acquisition of a business under IFRS 3 and it has been accounted for by applying the acquisition method. The Company expensed $55,000 of legal expenses, included in acquisition-related costs) in conjunction with the acquisition.
Page | 12
PROTECH HOME MEDICAL CORP.
NOTES TO THE AMENDED AND RESTATED CONDENSED CONSOLIDATED
INTERIM FINANCIAL STATEMENTS
(UNAUDITED)
(Tabular dollar amounts expressed in thousands of Canadian Dollars, except per share amounts)
The acquired business contributed actual revenue of approximately $1,900,000 and net loss of approximately $(500,000) for the three months ended December 31, 2019.
The fair value of the acquired assets was as follows:
Cash | $ | 106 | ||
Accounts receivable | 801 | |||
Inventory | 1,018 | |||
Prepaid assets | 55 | |||
Property and equipment | 2,532 | |||
Right of use assets | 1,338 | |||
Goodwill | 560 | |||
Intangible asset- Brand | 106 | |||
Intangible asset- Non-compete | 26 | |||
Intangible asset- Customer relationships | 437 | |||
Accounts payable and accrued liabilities | (1,079 | ) | ||
Deferred revenue | (271 | ) | ||
Equipment loans | (674 | ) | ||
Lease liabilities | (1,338 | ) | ||
Net assets acquired | $ | 3,617 | ||
Cash paid at closing | $ | 3,089 | ||
Cash to be paid after closing, included in accrued liabilities | 528 | |||
Consideration paid or payable | $ | 3,617 |
Acquisition of Acadia Medical Supply, Inc. (Acadia)
Effective December 1, 2019, the Company, through PHM Logistics Corporation, entered into a purchase agreement to acquire the shares of Acadia Medical Supply, Inc. (Acadia), a Maine company in the same industry as the Company. The purchase price was $1,961,000, of which $1,334,000 was paid in cash at closing, and the balance of $627,000 to be paid on the one- and two-year anniversaries of the acquisition discounted at 3.86%. The Company has determined that the transaction is an acquisition of a business under IFRS 3 and it has been accounted for by applying the acquisition method. The Company expensed $29,000 of legal expenses included in operating expenses in conjunction with the acquisition.
Pro forma revenues and net income for Acadia for the three months ended December 31, 2019 were approximately $1,050,000 and $140,000, respectively. Of these amounts, approximately $350,000 of revenue and $70,000 of net income has been contributed by Acadia for the period December 1 through December 31, 2019
The fair value of the acquired assets was as follows:
Cash | $ | 79 | ||
Accounts receivable | 190 | |||
Inventory | 327 | |||
Property and equipment | 516 | |||
Right of use assets | 321 | |||
Deposits | 10 | |||
Goodwill | 498 | |||
Intangible asset- Brand | 173 | |||
Intangible asset- Non-compete | 40 | |||
Intangible asset- Customer relationship | 611 | |||
Accounts payable and accrued liabilities | (368 | ) | ||
Deferred revenue | (59 | ) | ||
Equipment loans | (181 | ) | ||
Lease liabilities | (196 | ) | ||
Net assets acquired | $ | 1,961 | ||
Cash paid at closing | $ | 1,334 | ||
Cash to be paid after closing, included in accrued liabilities | 303 | |||
Cash to be paid after closing, included in other long-term liabilities | 324 | |||
Consideration paid or payable | $ | 1,961 |
Page | 13
PROTECH HOME MEDICAL CORP.
NOTES TO THE AMENDED AND RESTATED CONDENSED CONSOLIDATED
INTERIM FINANCIAL STATEMENTS
(UNAUDITED)
(Tabular dollar amounts expressed in thousands of Canadian Dollars, except per share amounts)
Prior Periods
During the three months ended December 31, 2018, the Company acquired two businesses. The details of these acquisitions were disclosed in Note 7 of the Company’s annual financial statements for the year ended September 30, 2019.
4. | Accounts receivable |
Accounts receivable represents amounts due from insurance companies and patients:
As at December 31, | As at September 30, | |||||||
2019 | 2019 | |||||||
Gross receivable | $ | 12,340 | $ | 15,463 | ||||
Reserve for expected credit losses | (3,291 | ) | (3,073 | ) | ||||
$ | 9,049 | $ | 12,390 |
Allowance for | ||||||||||||
As at December 31, 2019 | Gross Receivables | expected credit losses | Net Receivables | |||||||||
0 – 90 days | $ | 9,407 | $ | (1,217 | ) | $ | 8,190 | |||||
91 – 180 days | 1,242 | (625 | ) | 617 | ||||||||
Over 180 days | 1,691 | (1,449 | ) | 242 | ||||||||
Total | $ | 12,340 | $ | (3,291 | ) | $ | 9,049 |
Below is the movement in the reserve for expected credit losses:
Three months ended | Year ended | |||||||
Reserve for expected credit losses | December 31, 2019 | September 30, 2019 | ||||||
Opening Balance | $ | 3,073 | $ | 2,501 | ||||
Bad debt expense | 3,600 | 5,686 | ||||||
Bad debt expense – discontinued operations | - | 62 | ||||||
Amounts written off | (3,382 | ) | (5,176 | ) | ||||
Ending Balance | $ | 3,291 | $ | 3,073 |
5. | Inventory |
As at December 31, | As at September 30, | |||||||
2019 | 2019 | |||||||
Serialized | $ | 1,974 | $ | 1,038 | ||||
Non-serialized | 4,763 | 3,770 | ||||||
Reserve for slow-moving | (91 | ) | (70 | ) | ||||
Total Inventory | $ | 6,646 | $ | 4,738 |
Page | 14
PROTECH HOME MEDICAL CORP.
NOTES TO THE AMENDED AND RESTATED CONDENSED CONSOLIDATED
INTERIM FINANCIAL STATEMENTS
(UNAUDITED)
(Tabular dollar amounts expressed in thousands of Canadian Dollars, except per share amounts)
The reserve for slow-moving is included under cost of inventory sold in the condensed consolidated interim statement of (loss and comprehensive (loss) income.
6. | Property and equipment and right of use assets |
Cost |
Rental
equipment |
Computer
equipment |
Office
furniture and fixtures |
Leasehold
improvements |
Right
of use
assets - Vehicles |
Right
of
use assets – Real estate |
Total | |||||||||||||||||||||
Balance September 30, 2018 | $ | 37,201 | $ | 1,173 | $ | 635 | $ | 1,364 | $ | 2,875 | $ | - | $ | 43,248 | ||||||||||||||
Transfers from inventory | 1,666 | - | - | - | - | - | 1,666 | |||||||||||||||||||||
Additions | - | 2 | 1 | 64 | 60 | - | 127 | |||||||||||||||||||||
Acquisitions | 81 | - | 4 | 49 | 37 | - | 171 | |||||||||||||||||||||
Disposals | (3,824 | ) | (6 | ) | (21 | ) | - | - | - | (3,851 | ) | |||||||||||||||||
Foreign exchange | 2,004 | 63 | 34 | 73 | 155 | - | 2,329 | |||||||||||||||||||||
Balance December 31, 2018 | $ | 37,128 | $ | 1,232 | $ | 653 | $ | 1,550 | $ | 3,127 | - | $ | 43,690 | |||||||||||||||
Balance September 30, 2019 | $ | 35,377 | $ | 668 | $ | 574 | $ | 1,548 | $ | 3,426 | $ | - | $ | 41,593 | ||||||||||||||
Additions – adoption of IFRS 16 | - | - | - | - | - | 3,456 | 3,456 | |||||||||||||||||||||
Transfers from Inventory | 2,793 | - | - | - | - | - | 2,793 | |||||||||||||||||||||
Additions | - | 5 | - | 38 | 325 | 791 | 1,159 | |||||||||||||||||||||
Acquisitions | 2,806 | - | - | 244 | 211 | 1,448 | 4,709 | |||||||||||||||||||||
Disposals | (4,493 | ) | (5 | ) | (1 | ) | (2 | ) | (72 | ) | - | (4,573 | ) | |||||||||||||||
Foreign exchange | (471 | ) | (11 | ) | (10 | ) | (20 | ) | (40 | ) | (95 | ) | (647 | ) | ||||||||||||||
Balance December 31, 2019 | $ | 36,012 | $ | 657 | $ | 563 | $ | 1,808 | $ | 3,850 | $ | 5,600 | $ | 48,490 |
Accumulated Depreciation |
Rental
equipment |
Computer
equipment |
Office
furniture and fixtures |
Leasehold
improvements |
Right
of
use assets - Vehicles |
Right
of
use assets – Real estate |
Total | |||||||||||||||||||||
Balance September 30, 2018 | $ | 19,676 | $ | 753 | $ | 303 | $ | 263 | $ | 1,365 | $ | - | $ | 22,360 | ||||||||||||||
Depreciation | 2,878 | 62 | 31 | 33 | 163 | - | 3,167 | |||||||||||||||||||||
Depreciation -discontinued operations | 100 | - | - | - | - | - | 100 | |||||||||||||||||||||
Disposals | (3,824 | ) | (6 | ) | (21 | ) | - | - | - | (3,851 | ) | |||||||||||||||||
Foreign exchange | 1,160 | 43 | 18 | 17 | 82 | - | 1,320 | |||||||||||||||||||||
Balance December 31, 2018 | $ | 19,990 | $ | 852 | $ | 331 | $ | 313 | $ | 1,610 | $ | - | $ | 23,096 | ||||||||||||||
Balance September 30, 2019 | $ | 19,557 | $ | 491 | $ | 344 | $ | 340 | $ | 1,365 | $ | - | $ | 22,097 | ||||||||||||||
Depreciation | 3,650 | 34 | 33 | 59 | 195 | 480 | 4,451 | |||||||||||||||||||||
Disposals | (4,496 | ) | (5 | ) | (1 | ) | (2 | ) | (44 | ) | - | (4,548 | ) | |||||||||||||||
Foreign exchange | (153 | ) | (9 | ) | (7 | ) | (4 | ) | (26 | ) | (5 | ) | (204 | ) | ||||||||||||||
Balance December 31, 2019 | $ | 18,558 | $ | 511 | $ | 369 | $ | 393 | $ | 1,490 | $ | 475 | $ | 21,796 |
Page | 15
PROTECH HOME MEDICAL CORP.
NOTES TO THE AMENDED AND RESTATED CONDENSED CONSOLIDATED
INTERIM FINANCIAL STATEMENTS
(UNAUDITED)
(Tabular dollar amounts expressed in thousands of Canadian Dollars, except per share amounts)
Office | Right of | ||||||||||||||||||||||||||||
furniture | Right of use | use assets | |||||||||||||||||||||||||||
Rental | Computer | and | Leasehold | assets - | – Real | ||||||||||||||||||||||||
Net Book Value | equipment | equipment | fixtures | improvements | Vehicles | Estate | Total | ||||||||||||||||||||||
Balance September 30, 2018 | $ | 17,525 | $ | 420 | $ | 332 | $ | 1,101 | $ | 1,510 | $ | - | $ | 20,888 | |||||||||||||||
Balance December 31, 2018 | $ | 17,130 | $ | 380 | $ | 330 | $ | 1,237 | $ | 1,517 | $ | - | $ | 20,594 | |||||||||||||||
Balance September 30, 2019 | $ | 15,820 | $ | 177 | $ | 230 | $ | 1,208 | $ | 2,061 | $ | - | $ | 19,496 | |||||||||||||||
Balance December 31, 2019 | $ | 17,454 | $ | 146 | $ | 194 | $ | 1,415 | $ | 2,360 | $ | 5,125 | $ | 26,694 |
During the periods ended December 31, 2019 and September 30, 2019, the Company purchased rental equipment through the conversion of accounts payable to loans arranged by the vendor with a financing institution of $3,122,000 and $10,040,000, respectively (see Note 8).
7. | Goodwill and intangible assets |
Sub-total | ||||||||||||||||||||||||||||
Non- | intangibles | |||||||||||||||||||||||||||
compete | Customer | Customer | with finite | |||||||||||||||||||||||||
Cost | Goodwill | agreements | Brand | contracts | relationships | lives | Total | |||||||||||||||||||||
Balance September 30, 2018 | $ | 1,839 | $ | 669 | $ | 1,736 | $ | 4,826 | $ | 10,994 | $ | 18,225 | $ | 20,064 | ||||||||||||||
Disposals | - | - | - | - | (30 | ) | (30 | ) | (30 | ) | ||||||||||||||||||
Acquisitions | 531 | - | - | - | 160 | - | 691 | |||||||||||||||||||||
Impairment of goodwill | (531 | ) | - | - | - | - | - | (531 | ) | |||||||||||||||||||
Foreign exchange | 119 | 36 | 94 | 260 | 592 | 982 | 1,101 | |||||||||||||||||||||
Balance December 31, 2018 | $ | 1,958 | $ | 705 | $ | 1,830 | $ | 5,086 | $ | 11,716 | $ | 19,337 | $ | 21,295 | ||||||||||||||
Balance September 30, 2019 | $ | 1,881 | $ | 684 | $ | 1,776 | $ | 5,099 | $ | 11,204 | $ | 18,763 | $ | 20,644 | ||||||||||||||
Acquisitions | 1,058 | 66 | 279 | - | 1,048 | 1,393 | 2,451 | |||||||||||||||||||||
Effects of changes in | ||||||||||||||||||||||||||||
exchange rates | (113 | ) | (13 | ) | (34 | ) | (98 | ) | (216 | ) | (361 | ) | (474 | ) | ||||||||||||||
Balance December 31, 2019 | $ | 2,826 | $ | 737 | $ | 2,021 | $ | 5,001 | $ | 12,036 | $ | 19,795 | $ | 22,621 |
Non- | Sub-total | |||||||||||||||||||||||||||
compete | Customer | Customer | intangibles with | |||||||||||||||||||||||||
Accumulation amortization | Goodwill | agreements | Brand | contracts | relationships | finite lives | Total | |||||||||||||||||||||
Balance September 30, 2018 | $ | - | $ | 575 | $ | 1,047 | $ | 4,826 | $ | 8,502 | $ | 14,950 | $ | 14,950 | ||||||||||||||
Additions | - | 12 | 26 | - | 113 | 151 | 151 | |||||||||||||||||||||
Disposals | - | - | - | - | (30 | ) | (30 | ) | (30 | ) | ||||||||||||||||||
Effect of changes in exchange | ||||||||||||||||||||||||||||
rates | - | 31 | 57 | 260 | 462 | 810 | 810 | |||||||||||||||||||||
Balance December 31, 2018 | $ | - | $ | 618 | $ | 1,130 | $ | 5,086 | $ | 9,047 | $ | 15,881 | $ | 15,881 | ||||||||||||||
Balance September 30, 2019 | $ | - | $ | 636 | $ | 1,176 | $ | 4,937 | $ | 9,103 | $ | 15,852 | $ | 15,852 | ||||||||||||||
Amortization | - | 15 | 30 | 94 | 118 | 257 | 257 | |||||||||||||||||||||
Effect of changes in exchange | ||||||||||||||||||||||||||||
rates | - | (12 | ) | (23 | ) | (96 | ) | (177 | ) | (308 | ) | (308 | ) | |||||||||||||||
Balance December 31, 2019 | $ | - | $ | 639 | $ | 1,183 | $ | 4,935 | $ | 9,044 | $ | 15,801 | $ | 15,801 |
Sub-total | ||||||||||||||||||||||||||||
Non-compete | Customer | Customer | intangibles with | |||||||||||||||||||||||||
Net carrying amount | Goodwill | agreements | Brand | contracts | relationships | finite lives | Total | |||||||||||||||||||||
Balance September 30, 2018 | $ | 1,839 | $ | 94 | $ | 689 | $ | - | $ | 2,492 | $ | 3,275 | $ | 5,114 | ||||||||||||||
Balance December 31, 2018 | $ | 1,958 | $ | 87 | $ | 700 | $ | - | $ | 2,669 | $ | 3,456 | $ | 5,414 | ||||||||||||||
Balance September 30, 2019 | $ | 1,881 | $ | 48 | $ | 600 | $ | 162 | $ | 2,101 | $ | 2,911 | $ | 4,792 | ||||||||||||||
Balance December 31, 2019 | $ | 2,826 | $ | 98 | $ | 838 | $ | 66 | $ | 2,992 | $ | 3,994 | $ | 6,820 |
The Company’s goodwill impairment testing for the period ended December 31, 2018 determined that the carrying value of Central Oxygen CGU exceeded their value in use, and as a result, the Company recorded a goodwill impairment charge of $531,000. The impairment resulted from a decline in the expected performances of these businesses relative to expectations at the time the acquisition was consummated.
Page | 16
PROTECH HOME MEDICAL CORP.
NOTES TO THE AMENDED AND RESTATED CONDENSED CONSOLIDATED
INTERIM FINANCIAL STATEMENTS
(UNAUDITED)
(Tabular dollar amounts expressed in thousands of Canadian Dollars, except per share amounts)
The impairment was determined based on a value in use calculation which uses cash flow projections covering a five-year period and a discount rate of 17% per annum. The cash flows beyond the five-year period have been extrapolated using (terminal growth rates of 0% to 3%) per annum growth rate.
No impairment has been recognized in the three months ended December 31, 2019 as carrying value of the applicable CGUs was less than the value in use as of December 31, 2019.
8. | Long-Term Debt |
Debentures
On March 7, 2019, the Company issued $15,000,000 in 8.0% Convertible Unsecured Debentures due March 7, 2024, with interest payable semi-annually on June 30 and December 30 of each year. Each $1,000 debenture is convertible at the option of the holder into approximately 769.23 common shares. After three years, the Company can force conversion of the outstanding principal at conversion price of $1.30, if the daily volume weighted average price of the common shares exceeds $1.62 pershare for twenty consecutive trading days. The debenture agreement also allows for payment of cash in lieu of common shares upon exercise of conversion right by the holder, equivalent of the market price on the conversion date.
The debentures contain multiple embedded derivatives including conversion right, forced conversion option and payment in lieu of common shares. Since the Company is unable to measure the fair value of embedded derivatives reliably, it has chosen to designate the convertible debentures in their entirety (including conversion right, forced conversion option and payment in lieu of common shares) to be subsequently measured at fair value through profit or loss (FVTPL).
The debentures are valued at fair value using the current trading price of $98 and $93 per unit as of December 31, 2019 and September 30, 2019, respectively. There were 14,996 units outstanding, resulting in a loss of $730,000 for the three months ended December 31, 2019.
Three months ended | Year ended | |||||||
December 31, 2019 | September 30, 2019 | |||||||
Beginning Balance | $ | 13,966 | $ | - | ||||
Issued | - | 15,000 | ||||||
Change in fair value | 730 | (1,034 | ) | |||||
Ending Balance | $ | 14,696 | $ | 13,966 |
During 2014, the Company issued $8,625,000 in unsecured subordinated debentures due December 31, 2019. The debentures were repaid in April 2019 for $8,970,000, including a prepayment premium. The carrying value of the debentures at settlement was $7,864,000, resulting in a loss on early extinguishment of $1,106,000 due to unaccreted balance and premium paid due to early settlement.
Equipment Loans
The Company is offered financing arrangements from their suppliers and their designated financial institution, in which payments for certain invoices or products can be financed and paid over an extended period. The financial institution pays the supplier when the original invoice becomes due, and the Company pays the third-party financial institution over a period of time. In some cases, the supplier accepts a discounted amount from the financial institution and the Company repays the financial institution the face amount of the invoice with no stated interest, in twelve equal monthly installments. The Company uses a 6% incremental borrowing rate to impute interest on these arrangements. In other cases, the supplier receives the full invoice price and Company pays a stated interest rate to the financial institution, ranging from 5.6% to 8.0%, with the terms of the financing ranging from 12 to 48 months. There are no covenants with the loans and the carrying value of the equipment that is pledged as security against these loans is $9,950,000.
Page | 17
PROTECH HOME MEDICAL CORP.
NOTES TO THE AMENDED AND RESTATED CONDENSED CONSOLIDATED
INTERIM FINANCIAL STATEMENTS
(UNAUDITED)
(Tabular dollar amounts expressed in thousands of Canadian Dollars, except per share amounts)
Below is the movement in equipment loans for the year ended September 30, 2019 and the three months ended December 31, 2019:
Balance, September 30, 2018 | $ | 12,825 | ||
Additions | 10,040 | |||
Interest expense | 840 | |||
Repayments of principal and interest | (14,785 | ) | ||
Effect of changes in exchange rates | 755 | |||
Balance, September 30, 2019 | $ | 9,675 | ||
Additions: | ||||
Acquisitions | 856 | |||
Operations | 3,122 | |||
Interest expense | 145 | |||
Repayments of principal and interest | (4,366 | ) | ||
Effect of changes in exchange rates | (181 | ) | ||
Balance, December 31, 2019 | $ | 9,251 | ||
Current portion | (8,241 | ) | ||
Long-term portion, due in 2021 | 1,010 |
Lease Liabilities
Vehicle leases are recorded at rates implicit in the lease based on the current and estimated residual value of the vehicle, equating to rates ranging from 1. 7% to 10.4%, and real estate leases are recorded at the incremental borrowing rate of 8%.
Below is the movement in lease liabilities for the three months ended December 31, 2019:
Vehicles | Real estate | Total | ||||||||||
Balance, September 30, 2018 | $ | 1,080 | $ | - | $ | 1,080 | ||||||
Additions | 1,222 | - | 1,222 | |||||||||
Interest expense | 92 | - | 92 | |||||||||
Repayments of principal and interest | (508 | ) | - | (508 | ) | |||||||
Effect of changes in exchange rates | 48 | - | 48 | |||||||||
Balance, September 30, 2019 | $ | 1,934 | $ | - | $ | 1,934 | ||||||
Additions during the year: | ||||||||||||
Adoption of IFRS 16, Leases | - | 3,456 | 3,456 | |||||||||
Acquisitions | 87 | 1,447 | 1,534 | |||||||||
Operations | 325 | 791 | 1,116 | |||||||||
Interest expense | 61 | 98 | 159 | |||||||||
Repayments | (324 | ) | (560 | ) | (884 | ) | ||||||
Effect of changes in exchange rates | (8 | ) | (67 | ) | (75 | ) | ||||||
Balance, December 31, 2019 | $ | 2,076 | $ | 5,165 | $ | 7,241 | ||||||
Current portion | (589 | ) | (2,126 | ) | (2,715 | ) | ||||||
Long-term portion | 1,487 | 3,039 | 4,526 |
Future payments pursuant to lease liabilities are as follows:
As at | As at | |||||||
December 31, 2019 | September 30, 2019 | |||||||
Less than 1 year | $ | 2,715 | $ | 595 | ||||
Between 1 and 5 years | 5,591 | 1,685 | ||||||
More than five years | 278 | - | ||||||
Gross lease payments | $ | 8,584 | $ | 2,280 | ||||
Less: Finance charges | (1,343 | ) | (346 | ) | ||||
Net lease liabilities | $ | 7,241 | $ | 1,934 |
Page | 18
PROTECH HOME MEDICAL CORP.
NOTES TO THE AMENDED AND RESTATED CONDENSED CONSOLIDATED
INTERIM FINANCIAL STATEMENTS
(UNAUDITED)
(Tabular dollar amounts expressed in thousands of Canadian Dollars, except per share amounts)
9. | Share capital |
Bought deal and private placement
On November 2, 2018, the Company completed a bought deal offering of 5,649,600 common shares of the Company at a price of $0.60 per share for gross proceeds to the Company of $3,390,000. Along with this bought deal, the Company also completed a previously announced non-brokered private placement of 1,833,333 common shares to officers and directors at the $0.60 issue price for gross proceeds to the Company of $1,100,000. Issuance costs of $343,000 in cash were incurred. The Company also issued to the underwriter compensation options equal to 6.5% of the offered shares (367,224 options). Each compensation option is exercisable into one common share of the Company at the issue price for a period of 24 months from the closing of the offering. These shares are recorded as compensation options at $0.60 per share. The fair value of the options of $132,000 has been valued using the Black-Scholes option pricing model.
Options
The Company has a stock option plan, which it uses for grants to directors, officers, employees and consultants. Options granted under the plan are non-assignable and may be granted for a term not exceeding ten years. Stock options generally either vest immediately or annually over a two to three-year period.
A summary of stock options is provided below:
Number of options | Weighted | ||||||||
(000’s) | average exercise price | ||||||||
Balance September 30, 2019 | 11,392 | $ | 0.52 | ||||||
Forfeited | (7 | ) | 0.38 | ||||||
Expired | (75 | ) | 0.90 | ||||||
Balance December 30, 2019 | 11,310 | $ | 0.49 |
At December 31, 2019, the Company had 11,310,000 vested, exercisable stock options with a weighted average exercise price of $0.49.
Stock-based compensation
The Company accounts for stock-based compensation, including stock options, using the fair value method as prescribed by IFRS 2. Under this method, the fair value of stock options at the date of grant is expensed over the vesting period and the offsetting credit is recorded as an increase in contributed surplus.
For the three months ended December 31, 2019 and 2018, the Company recorded stock-based compensation expense of $42,000 and $530,000, respectively.
The fair value of the stock options has been charged to the statement of loss and comprehensive loss and credited to contributed surplus over the proper vesting period, using the Black-Scholes option pricing model calculated using the following assumptions:
Three months ended | Three months ended | |||||||
December 31, 2019 | December 31, 2018 | |||||||
Share price | N/A | $ | 0.63 | |||||
Risk-free interest rate | N/A | 2.24 | % | |||||
Expected volatility | N/A | 118.17 | % | |||||
Expected life of option | N/A | 10 years | ||||||
Expected dividend yield | N/A | Nil |
Page | 19
PROTECH HOME MEDICAL CORP.
NOTES TO THE AMENDED AND RESTATED CONDENSED CONSOLIDATED
INTERIM FINANCIAL STATEMENTS
(UNAUDITED)
(Tabular dollar amounts expressed in thousands of Canadian Dollars, except per share amounts)
10. | Commitments and Contingencies |
Commitments
The Company leases certain facilities with terms of less than a year that are classified as operating leases. Future payments pursuant to these leases are $155,000 as of September 30, 2020 and $27,000 as of December 31, 2019, which are all due in less than one year.
Contingencies
The Company has been in litigation with Lightwater Long Short Fund (“Lightwater”) for the year ended September 30, 2019 and three months ended December 31, 2019. The litigation is due to Lightwater claiming damages for matters related to subscription agreements in a prior private placement. Management and legal believe that this lawsuit is without merit and is unpredictable. It is uncertain currently to determine the outcome of this lawsuit or our potential liability, if any.
In March 2019, the Company experienced an unlawful and undiscovered intrusion into its email system, which resulted in fraudulent banking information being relayed regarding the transfer of funds on April 30, 2019 to satisfy the then outstanding debentures. The intruder was able to mislead certain parties with inaccurate requests and instructions and in doing so, caused the funds of $9,200,000 to be transferred into an account of a criminal third party outside North America. The fraud was uncovered on May 3, 2019, and the Company took immediate action to stop or undo the transfer and simultaneously started action to recover the amounts transferred. The Company has successfully retrieved $8,600,000 of the funds and is in process of enforcing a court order to have the rest of the $600,000 of funds returned.
From time to time, the Company is involved in various legal proceedings arising from the ordinary course of business, None of the matters in which the Company is currently involved, either individually, or in the aggregate, have a quantifiable exposure and are not expected to have a material adverse effect on the Company’s consolidated financial position, results of operations, or cash flows.
11. | Operating Expenses |
Three Months Ended | Three Months Ended | |||||||
December 31, 2019 | December 31, 2018 | |||||||
Employee salary and benefits | $ | 7,680 | $ | 6,441 | ||||
Bad debt expense (Note 4) | 3,600 | 1,322 | ||||||
Facilities | 675 | 920 | ||||||
Billing | 435 | 416 | ||||||
Professional Fees | 381 | 336 | ||||||
Marketing Costs | 220 | 178 | ||||||
All other | 1,426 | 1,148 | ||||||
Total | $ | 14,417 | $ | 10,761 |
12. | Income (Loss) per share |
The following reflects the net (loss) income and share data used in the basic and diluted income (loss) per share computations:
Three months ended | Three months ended | |||||||
December 31, 2019 | December 31 , 2018 | |||||||
Net (loss) from continuing operations | $ | (4,507 | ) | $ | (917 | ) | ||
Net (loss) income from discontinued operations | (1,158 | ) | 521 | |||||
Basic weighted average number of shares | 83,589 | 80,853 | ||||||
Diluted weighted average number of shares | 83,589 | 80,853 | ||||||
Basic – continuing operations | $ | (0.06 | ) | $ | (0.01 | ) | ||
Basic – discontinuing operations | (0.01 | ) | 0.01 | |||||
(0.07 | ) | 0.00 | ||||||
Diluted – continuing operations | (0.06 | ) | (0.01 | ) | ||||
Diluted - discontinuing operations | (0.01 | ) | 0.01 | |||||
(0.07 | ) | 0.00 |
The outstanding stock options for the quarter ended December 31, 2019 were excluded from the calculation of diluted loss per share because their effect is anti-dilutive. The outstanding stock options for the quarter ended December 31, 2018 were excluded from the calculation of diluted loss from continuing operations because their effect is anti-dilutive.
Page | 20
PROTECH HOME MEDICAL CORP.
NOTES TO THE AMENDED AND RESTATED CONDENSED CONSOLIDATED
INTERIM FINANCIAL STATEMENTS
(UNAUDITED)
(Tabular dollar amounts expressed in thousands of Canadian Dollars, except per share amounts)
13. | Related party transactions |
The Company has entered into six leases for office, warehouse, and retail space with a rental Company affiliated with the Company’s Chief Executive Officer. The leases have a combined area of 74,520 square feet. Lease payments under these leases are approximately $68,000 per month, plus taxes, utilities and maintenance.
Payments of $55,000 and $52,000 were made to the board for periods ended December 30, 2019 and 2018, respectively.
Key management personnel also participate in the Company’s share option program (see Note 9). The Company paid or accrued compensation to key management personnel the following:
Three months ended | Three months ended | |||||||
December 31, 2019 | December 31, 2018 | |||||||
Salaries and Benefits | $ | 255 | $ | 247 | ||||
Stock-based compensation | - | 333 | ||||||
Total | $ | 255 | $ | 580 |
14. | Discontinued Operations |
On July 29, 2019, the Company sold the assets of Patient Home Monitoring, Inc. The amended and restated condensed consolidated interim financial statements and the notes reflect Patient Home Monitoring, Inc. as discontinued operations. Prior period amounts have been reclassified in order to be comparable to the current period presentation, as follows:
Three months ended | Three months ended | |||||||
December 31, 2019 | December 31, 2018 | |||||||
Revenue | $ | - | $ | 1,191 | ||||
Inventory sold | - | 94 | ||||||
Operating expenses | 1,158 | (664 | ) | |||||
Depreciation | - | (100 | ) | |||||
Net (loss) income from discontinued operations | $ | (1,158 | ) | $ | 521 |
For the periods ended December 31, 2019 and 2018, Patient Home Monitoring, Inc. was classified as a discontinued operation. There are ongoing litigation matters involving Patient Home Monitoring, Inc. During the period ended December 31, 2019, the Company accrued legal fees of $452,000 to defend itself, and in one of the matters, reached a settlement of $67,000. The Company also reached a settlement in principle of $639,000 for certain ongoing litigation but has not been formally finalized. These matters are directly related to the operations of the disposed business, and as such, are reflected as discontinued operations. As of December 31, 2019, $1,056,000 relating to above discontinued operations were included in accrued liabilities.
15. | Subsequent Events |
Bought deal
On June 29, 2020, the Company completed a bought deal public offering, a concurrent brokered private placement, and a non-brokered private placement to the Company’s Chief Executive Officer and a director of the Company, for 25,001,000, 1,750,000 and 927,826 units, respectively. Each unit issued was issued at a price of $1.15 for total gross proceeds of $31,831,000 and consisted of one common share and one-half of one common share purchase warrant (each whole warrant, a “Warrant”), for a total of 13,839,410 Warrants. Each Warrant will be exercisable to acquire one common share for a period of 12 months following the closing at an exercise price of $1.60 per share.
Page | 21
PROTECH HOME MEDICAL CORP.
NOTES TO THE AMENDED AND RESTATED CONDENSED CONSOLIDATED
INTERIM FINANCIAL STATEMENTS
(UNAUDITED)
(Tabular dollar amounts expressed in thousands of Canadian Dollars, except per share amounts)
Health Technology Resources, L.L.C.
Effective August 17, 2020, the Company, through PHM Logistics Corporation, entered into a purchase agreement to acquire the shares of Health Technology Resources, L.L.C. (“HTR”), an Illinois company in the same industry as the Company. The purchase price was $7,062,000, of which $6,364,000 was paid in cash at closing, and the balance of $698,000 to be paid after closing. The $698,000 is comprised of (a) a holdback due on the two-year anniversary of the acquisition discounted at 3.86% for a value of $243,000, (b) Payroll Protection Plan funds of $274,000 to be paid on upon forgiveness, and (c) an earnout valued at $181,000. The earnout could be as high as $660,000 and the fair value was based on a Monte Carlo simulation.
Pro forma three-month revenues and net income for HTR had the acquisition occurred on October 1, 2019 were approximately $1,400,000 and $500,000, respectively.
Sleepwell, LLC
Effective October 23, 2020, the Company, through PHM Logistics Corporation, entered into a purchase agreement to acquire Sleepwell, LLC, a Georgia company, and its wholly-owned subsidiary, Halsom Home Care, an Ohio company (collectively, “Sleepwell”). The purchase price was approximately US$11,100,000, of which approximately US$6,600,000 was paid in cash at closing, approximately US$2,800,000 was paid in common stock in January 2021, and approximately US$1,700,000 of holdbacks payable in common stock of US$1,100,000 on August 31, 2022 and US$600,000 in cash, payable upon resolution of post-closing adjustments, if any, and Sleepwell’s PPP loan.
Pro forma three-month Sleepwell revenues and net income had the acquisition occurred October 1, 2019 would have been $3,200,000 and $600,000, respectively.
Mayhugh Drugs, Inc., dba Mayhugh’s Medical
Effective February 1, 2021, the Company, through PHM Logistics Corporation, entered into a purchase agreement to acquire Mayhugh Drugs, Inc., (“Mayhugh”) a Florida company. The purchase price was $1,190,000, of which $515,000 was paid in cash at closing, with $575,000 of holdbacks payable on the six-month and twelve-month anniversaries of the closing.
Pro forma three-month Mayhugh revenues and net income had the acquisition occurred October 1, 2019 would have been $1,389,000 and $354,000, respectively.
16. | Restatement |
During the preparation of the consolidated financial statements as of and for the year ended September 30, 2020, the Company identified certain errors and adjustments in the application of its accounting policies. As such, the financial statements for the three months ended December 31, 2019 and 2018, and as of December 31, 2019 and September 30, 2019 have been restated to reflect of these adjustments, as set out below.
a) | Deferred revenue |
The Company rents medical equipment to customers for a fixed monthly amount on a month-to-month basis. During prior periods, the monthly rental revenue was not recognized on a pro rata basis for a given month. The appropriate recognition resulted in an increase in deferred revenue as at December 31, 2019, September 30, 2019, and October 1, 2018 by $1,993,000, $1,904,000, and $1,904,000, respectively.
Activity for deferred revenue for the three months ended December 31, 2019 and the year ended September 30, 2019 is as follows:
Balance, September 30, 2018 | $ | 1,904 | ||
Net change | - | |||
Balance, September 30, 2019 | 1,904 | |||
Increase due to acquisitions | 330 | |||
Decrease recorded through the amended and restated condensed consolidated interim statement of (loss) income | (241 | ) | ||
Balance, December 31, 2019 | $ | 1,993 |
Page | 22
PROTECH HOME MEDICAL CORP.
NOTES TO THE AMENDED AND RESTATED CONDENSED CONSOLIDATED
INTERIM FINANCIAL STATEMENTS
(UNAUDITED)
(Tabular dollar amounts expressed in thousands of Canadian Dollars, except per share amounts)
b) | Classification of expenses |
The Company determined that expenses classified based on nature is more reliable and relevant. Accordingly, certain expenses were reclassified and the condensed consolidated interim statements of (loss) and comprehensive (loss) income for the three months ended December 31, 2019 and 2018 have been restated to reflect such classification.
c) | Classification of leases |
Equipment obtained on loans were classified as finance leases instead of equipment loans. Accordingly, finance leases were reclassified as equipment loans, and the statements of financial position as at December 31, 2019 and September 30, 2019, and the condensed consolidated interim statements of (loss) and comprehensive (loss) income for the three months ended December 31, 2019 and 2018 have been restated to reflect such classification.
d) | Impairment of goodwill |
The impairment of goodwill of $531,000 recognized in the condensed consolidated interim statement of (loss) and comprehensive (loss) income for the year ended September 30, 2019, has also been recognized in the condensed consolidated interim statements of (loss) and comprehensive (loss) income for the three months ended ended December 31, 2018.
e) | Acquisition of businesses and purchase accounting |
In connection with the business acquisitions described in note 3, certain values of assets, liabilities and consideration were corrected from those previously reported in the previously issued condensed consolidated interim financial statements as at and for the period ended December 31, 2019.
f) | Changes in estimates |
During the year ended September 30, 2020, the Company revised its estimate related to reserve for expected credit losses, and for certain accruals related to litigation from discontinued operations, among others. The effects of these changes are reflected in the condensed consolidated interim financial statements as at December 31, 2019, and for the period ended December 31, 2019.
The financial statement line items which have been restated are as follows:
Condensed consolidated interim statement of financial position as at December 31, 2019
Previously Reported | Adjustments | As Restated | ||||||||||
Accounts receivable, net | $ | 11,778 | $ | (2,729 | ) | $ | 9,049 | |||||
Inventory, net | 6,312 | 334 | 6,646 | |||||||||
Total current assets | 27,307 | (2,395 | ) | 24,912 | ||||||||
Property and equipment and right of use assets, net | 25,180 | 1,514 | 26,694 | |||||||||
Goodwill | 5,377 | (2,551 | ) | 2,826 | ||||||||
Intangible assets, net | 2,619 | 1,375 | 3,994 | |||||||||
Total long-term assets, net | 33,276 | 338 | 33,614 | |||||||||
Total assets | 60,583 | (2,057 | ) | 58,526 | ||||||||
Current portion of lease liabilities | 10,659 | (7,944 | ) | 2,715 | ||||||||
Current portion of equipment loans | - | 8,241 | 8,241 | |||||||||
Accrued liabilities | 3,936 | 1,056 | 4,992 | |||||||||
Deferred revenue | - | 1,993 | 1,993 | |||||||||
Total current liabilities | 23,540 | 3,346 | 26,886 | |||||||||
Lease liabilities | 5,211 | (685 | ) | 4,526 | ||||||||
Equipment loans | - | 1,010 | 1,010 | |||||||||
Other long-term liabilities | 241 | 83 | 324 | |||||||||
Total current liabilities | 23,540 | 3,346 | 26,886 | |||||||||
Total liabilities | 43,688 | 3,754 | 47,442 | |||||||||
Accumulated deficit | (215,198 | ) | (5,811 | ) | (221,009 | ) | ||||||
Total shareholders’ equity | 16,895 | (5,811 | ) | 11,084 | ||||||||
Total liabilities and shareholders’ equity | 60,583 | (2,057 | ) | 58,526 |
Page | 23
PROTECH HOME MEDICAL CORP.
NOTES TO THE AMENDED AND RESTATED CONDENSED CONSOLIDATED
INTERIM FINANCIAL STATEMENTS
(UNAUDITED)
(Tabular dollar amounts expressed in thousands of Canadian Dollars, except per share amounts)
Condensed consolidated interim statement of (loss) and comprehensive (loss) income for the three months ended December 31, 2019
Previously Reported | Adjustments | As Restated | ||||||||||
Sales of medical equipment and supplies | $ | 9,862 | $ | (504 | ) | $ | 9,358 | |||||
Rental of medical equipment | 12,907 | (419 | ) | 12,488 | ||||||||
Total revenue | 22,769 | (923 | ) | 21,846 | ||||||||
Cost of revenue | $ | 6,029 | $ | (6,029 | ) | $ | - | |||||
Inventory sold | - | 6,072 | 6,072 | |||||||||
Gross margin | 16,470 | (16,470 | ) | - | ||||||||
Selling general and administrative expenses | 12,552 | (12,552 | ) | - | ||||||||
Operating expenses | - | 14,417 | 14,417 | |||||||||
Amortization of intangible assets | 239 | 18 | 257 | |||||||||
Other expense (income) | (146 | ) | 5 | (141 | ) | |||||||
Operating loss from continuing operations | (419 | ) | (2,754 | ) | (3,173 | ) | ||||||
Interest expense, net | 604 | (604 | ) | - | ||||||||
Interest expense on debentures | - | 300 | 300 | |||||||||
Interest expense on equipment loans | - | 145 | 145 | |||||||||
Interest expense on lease liabilities | - | 159 | 159 | |||||||||
Change in fair value of debentures and derivative | 735 | (5 | ) | 730 | ||||||||
Loss before taxes from continuing operations and Net loss from continuing operations | (1,758 | ) | (2,749 | ) | (4,507 | ) | ||||||
Income (loss) from operations of discontinued operations | - | (1,158 | ) | (1,158 | ) | |||||||
Net loss | (1,758 | ) | (3,907 | ) | (5,665 | ) | ||||||
Comprehensive loss | (2,296 | ) | (3,907 | ) | (6,203 | ) | ||||||
Net income (loss) per share – basic and diluted | (0.02 | ) | (0.05 | ) | (0.07 | ) |
Condensed consolidated interim statement of cash flows for the three months ended December 31, 2019
Previously Reported | Adjustments | As Restated | ||||||||||
Net loss from continuing operations | $ | (1,758 | ) | $ | (2,749 | ) | $ | (4,507 | ) | |||
Net loss from discontinued operations | - | (1,158 | ) | (1,158 | ) | |||||||
Interest expense on leases and loans | - | 304 | 304 | |||||||||
Depreciation and amortization | 4,790 | (82 | ) | 4,708 | ||||||||
Bad debt expense | 1,984 | 1,616 | 3,600 | |||||||||
Net increase (decrease) in accounts receivable, excluding bad debt | (669 | ) | 1,164 | 495 | ||||||||
Net increase (decrease) in inventory | (534 | ) | 292 | (242 | ) | |||||||
Net increase (decrease) in accounts payable, accrued liabilities, and deferred income | (55 | ) | 917 | 862 | ||||||||
Cash flow from operating activities | 4,445 | 304 | 4,749 | |||||||||
Cash paid for acquisitions | (4,160 | ) | (263 | ) | (4,423 | ) | ||||||
Cash flow from investing activities | (4,111 | ) | (263 | ) | (4,374 | ) | ||||||
Repayments of long-term debt and interest | - | (5,250 | ) | (5,250 | ) | |||||||
Payments of finance lease obligations | (4,979 | ) | 4,979 | - | ||||||||
Cash flow from financing activities | (4,979 | ) | (271 | ) | (5,250 | ) | ||||||
Net decrease in cash | (4,645 | ) | (230 | ) | (4,875 | ) | ||||||
Effect of exchange rate changes on cash held in foreign currencies | 153 | 230 | 383 |
Page | 24
PROTECH HOME MEDICAL CORP.
NOTES TO THE AMENDED AND RESTATED CONDENSED CONSOLIDATED
INTERIM FINANCIAL STATEMENTS
(UNAUDITED)
(Tabular dollar amounts expressed in thousands of Canadian Dollars, except per share amounts)
Note 3 acquisition of businesses and purchase accounting
Line items adjusted on the net assets acquired of Cooley are as follows:
Previously Reported | Adjustments | As Restated | ||||||||||
Inventory | $ | 818 | $ | 200 | $ | 1,018 | ||||||
Property and equipment | 2,834 | (302 | ) | 2,532 | ||||||||
Right of use assets | - | 1,338 | 1,338 | |||||||||
Goodwill | 1,794 | (1,234 | ) | 560 | ||||||||
Assumed liabilities | (3,319 | ) | 3,319 | - | ||||||||
Intangible asset- Brand | - | 106 | 106 | |||||||||
Intangible asset- Non-compete | - | 26 | 26 | |||||||||
Intangible asset-Customer relationship | - | 437 | 437 | |||||||||
Accounts payable and accrued liabilities | - | (1,079 | ) | (1,079 | ) | |||||||
Deferred revenue | - | (271 | ) | (271 | ) | |||||||
Equipment loans | - | (674 | ) | (674 | ) | |||||||
Lease liabilities | - | (1,338 | ) | (1,338 | ) | |||||||
Net assets acquired | 3,089 | 528 | 3,617 | |||||||||
Cash to be paid after closing | - | 528 | 528 | |||||||||
Consideration paid or payable | 3,089 | 528 | 3,617 |
Line items adjusted on the net assets acquired of Acadia are as follows:
Previously Reported | Adjustments | As Restated | ||||||||||
Accounts receivable, net | $ | 139 | $ | 51 | $ | 190 | ||||||
Inventory | 350 | (23 | ) | 327 | ||||||||
Property and equipment | 164 | 352 | 516 | |||||||||
Right of use assets | - | 321 | 321 | |||||||||
Goodwill | 1,815 | (1,317 | ) | 498 | ||||||||
Accounts payable and accrued liabilities | (1,486 | ) | 1,118 | (368 | ) | |||||||
Intangible asset - Brand | - | 173 | 173 | |||||||||
Intangible asset - Non-compete | - | 40 | 40 | |||||||||
Intangible asset - Customer relationship | - | 611 | 611 | |||||||||
Deferred revenue | - | (59 | ) | (59 | ) | |||||||
Equipment loans | - | (181 | ) | (181 | ) | |||||||
Lease liabilities | - | (196 | ) | (196 | ) | |||||||
Net assets acquired | 1,071 | 890 | 1,961 | |||||||||
Cash to be paid after closing, included in accrued liabilities | - | 303 | 303 | |||||||||
Cash to be paid after closing, included in other long-term liabilities | - | 324 | 324 | |||||||||
Consideration paid or payable | - | 1,961 | 1,961 |
Note 6 additions in property and equipment reclassified as transfers from inventory for the three months ended December 31, 2019
Previously Reported | Adjustments | As Restated | ||||||||||
Additions of rental equipment | $ | 3,242 | $ | (3,242 | ) | $ | - | |||||
Transfers from inventory of rental equipment | - | 2,793 | 2,793 |
Page | 25
PROTECH HOME MEDICAL CORP.
NOTES TO THE AMENDED AND RESTATED CONDENSED CONSOLIDATED
INTERIM FINANCIAL STATEMENTS
(UNAUDITED)
(Tabular dollar amounts expressed in thousands of Canadian Dollars, except per share amounts)
Condensed consolidated interim statement of financial position as at September 30, 2019
Previously Reported | Adjustments | As Restated | ||||||||||
Current portion of leases | $ | 8,528 | $ | (7,971 | ) | $ | 557 | |||||
Lease liabilities | 3,081 | (1,704 | ) | 1,377 | ||||||||
Current portion of equipment loans | - | 8,179 | 8,179 | |||||||||
Equipment loans | - | 1,496 | 1,496 | |||||||||
Deferred revenue | - | 1,904 | 1,904 | |||||||||
Total current liabilities | 18,969 | 2,112 | 21,081 | |||||||||
Total long term liabilities | 17,047 | (208 | ) | 16,839 | ||||||||
Total liabilities | 36,016 | 1,904 | 37,920 | |||||||||
Accumulated deficit | (213,440 | ) | (1,904 | ) | (215,344 | ) | ||||||
Total shareholders’ equity | 19,149 | (1,904 | ) | 17,245 |
Condensed consolidated interim statements of (loss) income and comprehensive (loss) income for the three months ended December 31, 2018
Previously Reported | Adjustments | As Restated | ||||||||||
Cost of revenue | $ | 6,230 | $ | (6,230 | ) | $ | - | |||||
Inventory sold | - | 6,012 | 6,012 | |||||||||
Gross margin | 14,279 | (14,279 | ) | - | ||||||||
Selling general and administrative expenses | 10,543 | (10,543 | ) | - | ||||||||
Operating expenses | - | 10,761 | 10,761 | |||||||||
Impairment of goodwill | - | 531 | 531 | |||||||||
Operating loss from continuing operations | (116 | ) | (531 | ) | (647 | ) | ||||||
Interest expense, net | 396 | (396 | ) | - | ||||||||
Interest expense on debentures | - | 162 | 162 | |||||||||
Interest expense on equipment loans | - | 109 | 109 | |||||||||
Interest expense on lease liabilities | - | 25 | 25 | |||||||||
Accretion expense | - | 100 | 100 | |||||||||
Loss before taxes from continuing operations | (444 | ) | (531 | ) | (975 | ) | ||||||
Net loss from continuing operations | (386 | ) | (531 | ) | (917 | ) | ||||||
Net income (loss) | 135 | (531 | ) | (396 | ) | |||||||
Comprehensive income | 1,590 | (531 | ) | 1,059 | ||||||||
Net income (loss) per share | 0.00 | (0.00 | ) | (0.00 | ) |
Condensed consolidated interim statement of cash flows for the three months ended December 31, 2018
Previously Reported | Adjustments | As Restated | ||||||||||
Net income from continuing operations | $ | (386 | ) | $ | (531 | ) | $ | (917 | ) | |||
Interest expense on leases and loans | - | 134 | 134 | |||||||||
Impairment of goodwill | - | 531 | 531 | |||||||||
Net cash flows provided by operating activities | 2,471 | 134 | 2,605 | |||||||||
Payments of finance lease obligations | (4,481 | ) | 4,481 | - | ||||||||
Repayments of long-term debt and interest | - | (4,615 | ) | (4,615 | ) | |||||||
Net cash flow used in financing activities | (361 | ) | (134 | ) | (495 | ) |
Condensed consolidated interim statement of financial position as at October 1, 2018
Previously Reported | Adjustments | As Restated | ||||||||||
Deferred revenue | $ | - | $ | 1,904 | $ | 1,904 | ||||||
Total current liabilities | 18,395 | 1,904 | 20,299 | |||||||||
Total liabilities | 29,835 | 1,904 | 31,739 | |||||||||
Accumulated deficit | (206,054 | ) | (1,904 | ) | (207,958 | ) | ||||||
Total shareholders’ equity | 19,269 | (1,904 | ) | 17,365 |
Page | 26
Exhibit 99.110
Notice to Reader
As described in Note 17, the Company identified certain errors and adjustments, as set out below.
1. | Recognition of deferred revenue relating to rental billings in the condensed consolidated interim financial statements as at June 30, 2020 and September 30, 2019, and for the three and nine months ended June 30, 2020 and 2019. |
2. | Classification of expenses in the condensed consolidated interim statements of income (loss) and comprehensive income (loss) for the three and nine months ended June 30, 2020 and 2019. |
3. | Classification of leases and equipment loans in the condensed consolidated interim statements of financial position as at June 30, 2020 and September 30, 2019, and related interest expense in the condensed consolidated interim statements of income (loss) and comprehensive income (loss) for the three and nine months ended June 30, 2020 and 2019 |
4. | Recognition of goodwill impairment in the condensed consolidated interim statements of income (loss) and comprehensive income (loss) and cash flows for the nine months ended June 30, 2019 that had previously been recorded in the year ended September 30, 2019. |
5. | Recognition and measurement of assets, liabilities, and consideration relating to the business acquisitions that were previously reported in the previously issued condensed consolidated interim financial statements as at and for the three and nine months ended June 30, 2020. |
6. | During the year ended September 30, 2020, the Company revised its estimate related to reserve for expected credit losses, and presentation of certain operating expenses under discontinued operations. The effects of these changes are reflected in the condensed consolidated interim statements of financial position as at June 30, 2020, and the condensed consolidated interim statements of income (loss) and comprehensive income (loss) and cash flows for the periods ended June 30, 2020 and 2019. |
7. | Recognition of government grants and warrant derivative liabilities in the condensed consolidated interim financial statements as at June 30, 2020, and for the three and nine months ended June 30, 2020. |
8. | Certain accompanying notes to the condensed consolidated interim financial statements as at June 30, 2020 and September 30, 2019, and for the three and nine months ended June 30, 2020 and 2019. |
Accordingly, the previously issued condensed consolidated interim financial statements as at and for the three and nine months ended June 30, 2020 have been withdrawn and are refiled dated May 10, 2021.
Protech Home Medical Corp.
Amended and Restated
Condensed Consolidated Interim Financial Statements
2020 Third Quarter
For the Three and Nine Months Ended
June 30, 2020 and 2019
(UNAUDITED)
(Expressed in Canadian dollars)
TABLE OF CONTENTS | |
Amended and Restated Condensed Consolidated Interim Statements of Financial Position | Page 3 |
Amended and Restated Condensed Consolidated Interim Statements of Income (Loss) and Comprehensive Income (Loss) | Page 4 |
Amended and Restated Condensed Consolidated Interim Statements of Changes in Shareholders’ Equity | Page 5 |
Amended and Restated Condensed Consolidated Interim Statements of Cash Flows | Page 6 |
Notes to the Amended and Restated Condensed Consolidated Interim Financial Statements | Pages 7-31 |
pROTECH HOME MEDICAL CORP.
CONDENSED CONSOLIDATED INTERIM STATEMENT OF FINANCIAL POSITION
AS AT JUNE 30, 2020
(Expressed in thousands of Canadian Dollars, except per share amounts)
Notes |
As at
June 30, 2020 |
As at
September 30, 2019 |
||||||||||
ASSETS | ||||||||||||
Current Assets |
||||||||||||
Cash | $ | 44,678 | $ | 12,855 | ||||||||
Accounts receivable, net | 4 | 11,599 | 12,390 | |||||||||
Inventory, net | 5 | 7,314 | 4,738 | |||||||||
Prepaid expenses and other current assets | 1,263 | 800 | ||||||||||
Total current assets | 64,854 | 30,783 | ||||||||||
Long-term assets |
||||||||||||
Property and equipment and right of use assets, net | 6 | 24,416 | 19,496 | |||||||||
Goodwill | 7 | 3,122 | 1,881 | |||||||||
Intangible assets, net | 7 | 3,720 | 2,911 | |||||||||
Deposits | 109 | 94 | ||||||||||
Total long-term assets | 31,367 | 24,382 | ||||||||||
TOTAL ASSETS | $ | 96,221 | $ | 55,165 | ||||||||
LIABILITIES | ||||||||||||
Current Liabilities | ||||||||||||
Accounts payable | $ | 8,792 | $ | 8,122 | ||||||||
Accrued and other current liabilities | 5,890 | 2,319 | ||||||||||
Government Grant | 8 | 4,444 | - | |||||||||
Deferred revenue | 17 | 2,229 | 1,904 | |||||||||
Warrant Liability | 10 | 2,208 | - | |||||||||
Current portion of loans | 9 | 7,248 | 8,179 | |||||||||
Current portion of lease liabilities | 9 | 2,588 | 557 | |||||||||
Total current liabilities | 33,399 | 21,081 | ||||||||||
Long-Term Liabilities |
||||||||||||
Debentures | 9 | 15,461 | 13,966 | |||||||||
Equipment Loans | 9 | 840 | 1,496 | |||||||||
Lease liabilities | 9 | 4,775 | 1,377 | |||||||||
Government Grant | 8 | 3,152 | - | |||||||||
Other long-term liabilities | 3 | 324 | - | |||||||||
Total long-term liabilities | 24,552 | 16,839 | ||||||||||
TOTAL LIABILITIES | 57,951 | 37,920 | ||||||||||
SHAREHOLDERS’ EQUITY | ||||||||||||
Share capital | 10 | $ | 224,222 | 198,196 | ||||||||
Contributed surplus | 10 | 21,885 | 21,390 | |||||||||
Accumulated deficit | (221,570 | ) | (215,344 | ) | ||||||||
Accumulated other comprehensive income | 13,733 | 13,003 | ||||||||||
TOTAL SHAREHOLDERS’ EQUITY | 38,270 | 17,245 | ||||||||||
TOTAL LIABILITIES AND SHAREHOLDERS’ EQUITY | $ | 96,221 | $ | 55,165 |
APPROVED ON BEHALF OF THE BOARD: |
|
signed “Donald Ewing” | signed “Mark Greenberg” |
The accompanying notes are an integral part of these condensed consolidated interim financial statement
Page | 3
PROTECH HOME MEDICAL CORP.
CONDENSED CONSOLIDATED INTERIM STATEMENTS OF INCOME (LOSS) AND COMPREHENSIVE
INCOME (LOSS) FOR THE THREE AND NINE MONTHS ENDED JUNE 30, 2020 AND 2019
AMENDED AND RESTATED
(Expressed in thousands of Canadian Dollars, except per share amounts)
Notes |
Three months
ended June 30, 2020 |
Three Months
ended June 30, 2019 |
Nine Months
ended June 30, 2020 |
Nine Months
ended June 30,
|
||||||||||||||||
Revenue | ||||||||||||||||||||
Sales of medical equipment and supplies | $ | 10,637 | $ | 7,777 | $ | 30,075 | $ | 26,471 | ||||||||||||
Rentals of medical equipment | 15,098 | 12,387 | 41,535 | 35,026 | ||||||||||||||||
Total revenue | 25,735 | 20,164 | 71,610 | 61,497 | ||||||||||||||||
Inventory sold | 7,223 | 5,836 | 19,703 | 17,687 | ||||||||||||||||
Operating expenses | 12 | 13,113 | 10,604 | 39,636 | 32,388 | |||||||||||||||
Depreciation | 6 | 4,850 | 3,224 | 13,651 | 9,244 | |||||||||||||||
Amortization of intangible assets | 7 | 208 | 153 | 668 | 455 | |||||||||||||||
Stock-based compensation | 10 | 73 | 446 | 207 | 1,337 | |||||||||||||||
Impairment of goodwill | - | - | - | 531 | ||||||||||||||||
Loss from cyber incident | - | 9,184 | - | 9,184 | ||||||||||||||||
Acquisition-related costs | - | 1,401 | - | 1,401 | ||||||||||||||||
Loss (gain) on sale of property and equipment | (15 | ) | (39 | ) | (106 | ) | 124 | |||||||||||||
Other expense (income) | (633 | ) | - | (828 | ) | 6 | ||||||||||||||
Operating income (loss) from continuing operations | 916 | (10,645 | ) | (1,321 | ) | (10,860 | ) | |||||||||||||
Financing expenses |
||||||||||||||||||||
Interest expense on debentures | 300 | 430 | 900 | 753 | ||||||||||||||||
Interest expense on equipment loans | 136 | 161 | 422 | 416 | ||||||||||||||||
Interest expense on lease liabilities | 215 | 10 | 553 | 73 | ||||||||||||||||
Accretion expense | - | 343 | - | 863 | ||||||||||||||||
Transaction Costs Bought Deal | 10 | 284 | - | 284 | - | |||||||||||||||
Loss on extinguishment of debentures | - | 1,107 | - | 1,107 | ||||||||||||||||
Change in fair value of debentures and derivative | 9 | 3,314 | (161 | ) | 1,495 | (133 | ) | |||||||||||||
Income (loss) before taxes from continuing operations | (3,333 | ) | (12,535 | ) | (4,975 | ) | (13,939 | ) | ||||||||||||
Provision for income taxes | 49 | 29 | 93 | 134 | ||||||||||||||||
Net income (loss) from continuing operations | (3,382 | ) | (12,564 | ) | (5,068 | ) | (14,073 | ) | ||||||||||||
Discontinued operations: | ||||||||||||||||||||
Net income (loss) from discontinued operations | 15 | - | 25 | (1,158 | ) | 607 | ||||||||||||||
Net income (loss) | $ | (3,382 | ) | $ | (12,539 | ) | $ | (6,226 | ) | $ | (13,466 | ) | ||||||||
Other comprehensive income (loss) | ||||||||||||||||||||
Cumulative translation adjustment | (1,300 | ) | (708 | ) | 730 | 253 | ||||||||||||||
Comprehensive income (loss) | $ | (4,682 | ) | $ | (13,247 | ) | $ | (5,496 | ) | $ | (13,213 | ) | ||||||||
Net income (loss) per share | ||||||||||||||||||||
Basic | 13 | $ | (0.04 | ) | $ | (0.15 | ) | $ | (0.07 | ) | $ | (0.16 | ) | |||||||
Diluted | 13 | (0.04 | ) | (0.15 | ) | (0.07 | ) | (0.16 | ) | |||||||||||
Weighted average number of common shares outstanding: | ||||||||||||||||||||
Basic | 84,261 | 83,529 | 83,834 | 82,627 | ||||||||||||||||
Diluted | 84,261 | 89,093 | 83,834 | 88,191 |
The accompanying notes are an integral part of these condensed consolidated interim financial statements.
Page | 4
PROTECH HOME MEDICAL CORP.
CONDENSED CONSOLIDATED INTERIM STATEMENTS
OF CHANGES IN SHAREHOLDERS’ EQUITY
FOR THE NINE MONTHS ENDED JUNE 30, 2020 AND 2019
AMENDED AND RESTATED
(Expressed in thousands of Canadian Dollars)
Number
of Shares (000’s) |
Share
Capital |
Contributed
surplus |
Accumulated
Deficit |
Accumulated
other comprehensive income |
Total
Shareholder’s equity |
|||||||||||||||||||
Balance September 30, 2018 | 75,819 | $ | 193,951 | $ | 19,041 | $ | (206,054 | ) | $ | 12,332 | $ | 19,270 | ||||||||||||
Correction for Deferred Revenue (Note 17) | (1,904 | ) | (1,904 | ) | ||||||||||||||||||||
Restated Balance, September 30, 2018 | 75,819 | 193,951 | 19,041 | (207,958 | ) | 12,332 | 17,366 | |||||||||||||||||
Net income (loss) | - | - | - | (13,466 | ) | - | (13,466 | ) | ||||||||||||||||
Other comprehensive income | - | - | - | - | 253 | 253 | ||||||||||||||||||
Stock-based compensation (Note 10) | - | - | 1,337 | - | - | 1,337 | ||||||||||||||||||
Stock issued with acquisition | 227 | 164 | - | - | - | 164 | ||||||||||||||||||
Proceeds from issuance of shares (Note 10) | 7,483 | 4,014 | 132 | - | - | 4,146 | ||||||||||||||||||
Underwriter options issued (Note 10) | - | - | 175 | - | - | 175 | ||||||||||||||||||
Restated Balance June 30, 2019 | 83,529 | $ | 198,129 | $ | 20,685 | $ | (221,424 | ) | $ | 12,585 | $ | 9,975 | ||||||||||||
Restated Balance September 30, 2019 | 83,589 | $ | 198,196 | $ | 21,390 | $ | (215,344 | ) | $ | 13,003 | $ | 17,245 | ||||||||||||
Net loss | - | - | - | (6,226 | ) | - | (6,226 | ) | ||||||||||||||||
Exercise of options (Note 10) | 517 | 579 | (299 | ) | - | - | 280 | |||||||||||||||||
Other comprehensive income | - | - | - | - | 730 | 730 | ||||||||||||||||||
Proceeds from issuance of shares (Note 10) | 27,679 | 25,412 | 622 | - | - | 26,034 | ||||||||||||||||||
Stock-based compensation (Note 10) | 60 | 35 | 172 | - | - | 207 | ||||||||||||||||||
Balance June 30, 2020 | 111,845 | $ | 224,222 | $ | 21,885 | $ | (221,570 | ) | $ | 13,733 | $ | 38,270 |
The accompanying notes are an integral part of these condensed consolidated interim financial statements.
Page | 5
PROTECH HOME MEDICAL CORP.
CONDENSED CONSOLIDATED INTERIM STATEMENTS OF CASH FLOWS
FOR THE NINE MONTHS ENDED JUNE 30, 2020 AND 2019
AMENDED AND RESTATED
(Expressed in thousands of Canadian Dollars)
Notes |
Nine months ended
June 30, 2020 |
Nine months ended
June 30, 2019 |
||||||||||
Operating activities | ||||||||||||
Net income from continuing operations | $ | (5,068 | ) | $ | (14,073 | ) | ||||||
Net income from discontinued operations | (1,158 | ) | 607 | |||||||||
Adjustments to reconcile net income to net cash provided by operating activities: | ||||||||||||
Depreciation and amortization | 14,319 | 9,699 | ||||||||||
Depreciation and amortization – discontinued operations | - | 342 | ||||||||||
Interest expense on leases and loans | 975 | 490 | ||||||||||
Accretion expense | - | 863 | ||||||||||
Loss on extinguishment of debentures | - | 1,107 | ||||||||||
Change in fair value of debentures and derivative | 9 | 1,495 | (133 | ) | ||||||||
(Gain)/loss on disposal of property and equipment | (106 | ) | 124 | |||||||||
Transaction Costs related to issuance of financial liabilities | 284 | - | ||||||||||
Stock-based compensation | 10 | 207 | 1,337 | |||||||||
Impairment of goodwill | - | 531 | ||||||||||
Bad debt expense | 4 | 7,061 | 4,233 | |||||||||
Bad debt expense – discontinued operations | - | 49 | ||||||||||
Government grant | (643 | ) | - | |||||||||
Change in Working Capital: | ||||||||||||
Net increase in accounts receivable, excluding bad debt expense | (5,139 | ) | (7,081 | ) | ||||||||
Net increase in inventory | (1,415 | ) | (318 | ) | ||||||||
Net increase in prepaid expenses and other current assets | (143 | ) | (156 | ) | ||||||||
Net increase in accounts payable, accrued liabilities, and deferred revenue | 2,462 | 1,146 | ||||||||||
Net cash flows provided by (used in) operating activities | 13,131 | (1,233 | ) | |||||||||
Investing activities |
||||||||||||
Purchases of property and equipment | (90 | ) | (158 | ) | ||||||||
Proceeds from sales of property and equipment | 299 | 57 | ||||||||||
Cash paid for acquisitions | 3 | (4,423 | ) | (526 | ) | |||||||
Net cash flow used in investing activities | (4,214 | ) | (627 | ) | ||||||||
Financing activities | ||||||||||||
Repayments of equipment loans and lease obligations | (13,862 | ) | (9,707 | ) | ||||||||
Proceeds from issuance of debenture | - | 13,959 | ||||||||||
Proceeds from Government Grant | 8,239 | - | ||||||||||
Repayment of old debenture | - | (8,970 | ) | |||||||||
Proceeds from shareholder loan | - | 3,428 | ||||||||||
Proceeds from issuance of warrants | 2,208 | - | ||||||||||
Proceeds from the exercise of options | 280 | - | ||||||||||
Proceeds from issuance of common shares | 26,034 | 4,147 | ||||||||||
Net cash flow provided by financing activities | 22,899 | 2,857 | ||||||||||
Net increase (decrease) in cash | 31,816 | 997 | ||||||||||
Effect of exchange rate changes on cash held in foreign currencies | 7 | (1,144 | ) | |||||||||
Cash, beginning of period |
12,855 | 4,331 | ||||||||||
Cash, end of period | $ | 44,678 | $ | 4,184 |
The accompanying notes are an integral part of these condensed consolidated interim financial statements.
Page | 6
PROTECH HOME MEDICAL CORP.
NOTES TO THE CONDENSED CONSOLIDATED
INTERIM FINANCIAL STATEMENTS
AMENDED AND RESTATED
(Tabular dollar amounts expressed in thousands of Canadian Dollars, except per share amounts)
1. | Nature of operations |
Reporting entity
Protech Home Medical Corp. (“Protech” or the “Company”) was incorporated under the Business Corporations Act (Alberta) on March 5, 1993. On December 30, 2013, the Company was continued into British Columbia, Canada. The address of the registered office is Suite 2800, 666 Burrard St., Vancouver, BC V6C 2Z7. The head office is located at 1019 Town Drive, Wilder, Kentucky, United States. The Company is a participating Medicare provider that provides i) nebulizers, oxygen concentrators, and CPAP and BiPAP units; ii) traditional and non-traditional durable medical respiratory equipment and services; and iii) non-invasive ventilation equipment, supplies and services. The Company has embarked on an acquisition strategy for additional revenue and profit growth. The Company’s shares are traded on the TSX Venture Exchange under the symbol PTQ. The stock is also traded over the counter in the United States under the symbol PTQQF.
On July 29, 2019, the Company sold all the assets of one of its subsidiaries, Patient Home Monitoring, Inc. The consolidated financial statements and the notes reflect the Patient Home Monitoring, Inc. as discontinued operations. Prior year amounts have been reclassified in order to be comparable to the current year presentation.
Share consolidation
Effective December 31, 2018, the Company consolidated its common shares on the basis of one (1) new post-consolidation common share for every five (5) pre-consolidation common shares. The consolidation affected shareholders uniformly, including holders of outstanding stock options, warrants, and other securities convertible or exercisable into common shares on the effective date.
Basis of measurement
These consolidated financial statements have been prepared on a going concern basis that assumes that the Company will continue its operations for the foreseeable future and be able to realize its assets and discharge its liabilities and commitments in the normal course of operation.
COVID-19 Pandemic
On March 11, 2020, the World Health Organization declared the outbreak of a novel strain of coronavirus (“COVID-19”) a global pandemic. In response to the outbreak, governmental authorities in the United States and internationally have introduced various recommendations and measures to try to limit the pandemic, including travel restrictions, border closures, non-essential business closures, quarantines, self-isolations, shelters-in-place, and social distancing. The COVID-19 outbreak and the response of governmental authorities to try to limit it are having a significant impact on the private sector and individuals, including unprecedented business, employment, and economic disruptions.
Although the Company has taken steps to mitigate the impact of COVID-19, the continued presence and spread of COVID-19 nationally and globally could have a material adverse impact on the Company’s business, operations, and financial results and position, including through employee attrition, disruptions to the Company’s supply chains and sales channels, restrictions of operations at our retail stores, changes in the number of Americans with health insurance resulting in a change in demand for the Company’s products, as well as a deterioration of general economic conditions including a possible national or global recession. Due to the speed with which the COVID-19 situation is developing and the uncertainty of its magnitude, outcome, and duration, it is not possible to estimate its impact on the Company’s business, operations, financial results and position or prospects at this time.
The Company continues to monitor the situation and work with its stakeholders (including customers, employees, and suppliers) in order to assess further possible implications to its business, supply chain, and customers, and, where practicable, mitigate adverse consequences and responsibly address this global pandemic.
Page | 7
PROTECH HOME MEDICAL CORP.
NOTES TO THE CONDENSED CONSOLIDATED
INTERIM FINANCIAL STATEMENTS
AMENDED AND RESTATED
(Tabular dollar amounts expressed in thousands of Canadian Dollars, except per share amounts)
The actual and threatened spread of COVID-19 globally could adversely affect global economies and financial markets, resulting in a prolonged economic downturn. The extent to which COVID-19 (or any other disease, epidemic, or pandemic) impacts business activity or financial results, and the duration of any such negative impact, will depend on future developments, which are highly uncertain and cannot be predicted, including new information which may emerge concerning COVID-19 and the actions required to contain or treat its impact, among others.
2. | Summary of significant accounting policies |
Unreserved statement of compliance
These unaudited condensed consolidated interim financial statements have been prepared in accordance with International Accounting Standard (IAS) 34, Interim Financial Reporting using accounting policies consistent with International Financial Reporting Standards (IFRS) as issued by the International Accounting Standards Board. These condensed consolidated interim financial statements do not include all the disclosures required in annual consolidated financial statements and should be read in conjunction with the Company’s audited consolidated financial statements for the years ended September 30, 2019 and 2018.
Except as noted below, the Company has followed the same basis of presentation, accounting policies and method of computation for these condensed consolidated interim financial statements as disclosed in the annual audited consolidated financial statements for the years ended September 30, 2019 and 2018.
The unaudited condensed consolidated interim financial statements were approved and authorized for issuance by the Board of Directors on May 7, 2021.
These unaudited condensed consolidated interim financial statements, which are presented in Canadian dollars, have been prepared under the historical cost convention, as modified by the measurement at fair values of certain financial assets and financial liabilities.
Critical accounting estimates
The following are the key estimate and assumption uncertainties that have a significant risk of resulting in a material adjustment within the next financial year:
The preparation of financial statements in conformity with IFRS requires management to make certain estimates, judgments, and assumptions concerning the future. The Company’s management reviews these estimates, judgments, and assumptions on an ongoing basis, based on experience and other factors, including expectations of future events that are believed to be reasonable under the circumstances. Revisions to estimates are adjusted prospectively in the period in which the estimates are revised.
Estimates where management has made subjective judgments and where there is significant risk of material adjustments to assets and liabilities in future accounting periods include fair value measurements for financial instruments and share-based transactions, useful lives and impairment of non-financial assets (property and equipment and intangible assets), provision for expected credit losses, fair value measurements for assets and liabilities acquired in business acquisition, and calculation of deferred taxes
Revenue recognition
Revenues are billed to and collections are received from both third-party insurers and patients. Because of continuing changes in the health care industry and third-party reimbursement, the consideration receivable from these insurance companies is variable as these billings can be challenged by the payer. Therefore, the amount billed by the Company is reduced by an estimate of the amount that the Company believes is an allowable charge to be ultimately allowed by the insurance contract. The above estimate involves significant judgment including an analysis of past collections and historical modification rates. Management regularly reviews the actual claims approved by the insurance companies, making adjustments as required.
Page | 8
PROTECH HOME MEDICAL CORP.
NOTES TO THE CONDENSED CONSOLIDATED
INTERIM FINANCIAL STATEMENTS
AMENDED AND RESTATED
(Tabular dollar amounts expressed in thousands of Canadian Dollars, except per share amounts)
Sales of medical equipment and supplies
The Company sells equipment, replacement parts, and supplies to customers and recognizes revenue based on contractual payment rates as determined by the payors at the point in time where control of the good or service is transferred through delivery to the customer. The payors are generally charged at the time that the product is sold.
The transaction price on equipment sales is the amount that the Company expects to receive in exchange for the goods and services provided. Due to the nature of the industry, gross charges are retail charges and generally do not reflect what the Company is ultimately paid. As such, the transaction price is constrained for the difference between the gross charge and what is estimated to be collected from payors and from patients. The transaction price therefore is predominantly based on contractual payment rates as determined by the payors. The Company does not generally contract with uninsured customers but does offer point-of-sale payments at retail outlets. The payment terms and conditions of customer contracts vary by customer type and the products and services offered.
The Company determines its estimates of contractual allowances and discounts based upon contractual agreements and historical experience. While the rates are fixed for the product or service with the customer and the payors, such amounts typically include co-payments, co-insurance, and deductibles, which vary in amounts, and are due from secondary insurance and/or the patient. The Company includes in the transaction price only the amount that the Company expects to be entitled, which is substantially all of the payor billings at contractual rates.
Due to the nature of the industry and the reimbursement environment in which the Company operates, certain estimates are required to record net revenue and accounts receivable at their net realizable values. Inherent in these estimates is the risk that they will have to be revised or updated as additional information becomes available. Specifically, the complexity of many third-party billing arrangements and the uncertainty of reimbursement amounts for certain services from certain payors may result in adjustments to amounts originally recorded. Such adjustments are typically identified and recorded at the point of claim approval or denial.
Returns and refunds are not accepted on equipment sales. The Company does not offer warranties to customers in excess of the manufacturer’s warranty. Any taxes due upon sale of the products or services are not recognized as revenue. The Company does not have any partially or unfilled performance obligations related to contracts with customers and as such, the Company has no contract liabilities as of June 30, 2020.
Rental of medical equipment
The Company rents medical equipment to customers for a fixed monthly amount on a month-to-month basis. The customer generally has the right to cancel the lease at any time during the rental period. The Company considers these rentals to be operating leases. Under IFRS 16, “Leases”, the Company recognizes rental revenue on operating leases on a straight-line basis over the contractual lease term, resulting in deferred revenue for the portion of the monthly rent that is after the consolidated statement of financial position date. The term begins on the date products are delivered to patients, and revenues are recorded at amounts estimated to be received under reimbursement arrangements with third-party payors, including Medicare, private commercial payors, and Medicaid. Certain customer co-payments are included in revenue when considered probable of payment.
Due to the nature of the industry and the reimbursement environment in which the Company operates, certain estimates are required to record net revenue and accounts receivable at their net realizable values. Inherent in these estimates is the risk that they will have to be revised or updated as additional information becomes available. Specifically, the complexity of many third-party billing arrangements and the uncertainty of reimbursement amounts for certain services from certain payors may result in adjustments to amounts originally recorded. Such adjustments are typically identified and recorded at the point of cash application or claim denial.
Valuation of accounts receivable
The measurement of expected credit losses considers information about past events and current conditions. Forward looking macro-economic factors are incorporated into the risk parameters, such as unemployment rates, inflation, and interest rates. Significant judgments are made in order to incorporate forward-looking information into the estimation of allowances and may result in changes to the provision from period to period which may significantly affect our results of operations.
The Company estimates that a certain portion of receivables from customers may not be collected and maintains an allowance for doubtful accounts. The Company evaluates the net realizable value of accounts receivable as of the date of the consolidated balance sheets. Specifically, the Company considers historical realization data, including current and historical cash collections, accounts receivable aging trends, other operating trends, and relevant business conditions. Because of continuing changes in the health care industry and third-party reimbursement, it is possible that the estimates could change, which could have a material impact on the operations and cash flows. If circumstances related to certain customers change or actual results differ from expectations, our estimate of the recoverability of receivables could fluctuate from that provided for in our consolidated financial statements. A change in estimate could impact bad debt expense and accounts receivable.
Page | 9
PROTECH HOME MEDICAL CORP.
NOTES TO THE CONDENSED CONSOLIDATED
INTERIM FINANCIAL STATEMENTS
AMENDED AND RESTATED
(Tabular dollar amounts expressed in thousands of Canadian Dollars, except per share amounts)
Valuation of inventories
Inventory is recorded at the lower of cost or market. Inventory is expensed through cost of inventory sold when shipped to customers or transferred to property and equipment when rented to customers. The Company estimates that a certain portion of inventory purchased may be excess, obsolete, or non-saleable. The Company maintains a provision for obsolescence for these items. Valuation of the inventory was assessed at year-end, and all inventory items which more than two years are old and not supported by recent sales were provided for 50% in accordance with Company’s policy.
Convertible debentures
In accordance with the substance of the contractual arrangement, convertible debentures are compound financial instruments that are accounted for separately by their components: a financial liability and an equity instrument. The identification of convertible debenture components is based on interpretations of the substance of the contractual arrangement and therefore requires judgment from management. The separation of the components affects the initial recognition of the convertible debenture at issuance and the subsequent recognition of interest on the liability component. The determination of the fair value of the liability is also based on a number of assumptions, including contractual future cash flows, discount factors, and the presence of any derivative financial instruments.
Impairment of property and equipment and intangibles
Property plant and equipment and intangibles are reviewed for impairment whenever events or changes in circumstances indicate that their carrying amounts exceed their recoverable amounts. The assessment of the recoverable amount requires estimates and assumptions such as discount rates, exchange rates, future capital requirements and future operating performance.
Share based payments and warrants
The amounts used to estimate fair values of stock options and warrants issued are based on estimates of future volatility of the Company’s share price, expected lives of the options and warrants, expected dividends to be paid by the Company and other relevant assumptions. By their nature, these estimates are subject to measurement uncertainty and the effect of changes in such estimates on the consolidated financial statements of future periods could be significant.
Income taxes
Significant judgment is required in determining the provision for future income taxes. There are many transactions and calculations undertaken during the ordinary course of business for which the ultimate tax determination is uncertain. The Company recognizes liabilities and contingencies for anticipated tax audit issues based on the Company’s current understanding of the tax law. For matters where it is probable that an adjustment will be made, the Company records its best estimate of the tax liability including the related interest and penalties in the current tax provision. Management believes they have adequately provided for the probable outcome of these matters; however, the final outcome may result in a materially different outcome than the amount included in the tax liabilities.
In addition, the Company recognizes deferred tax assets relating to tax losses carried forward to the extent there are sufficient taxable temporary differences (deferred tax liabilities) relating to the same taxation authority and the same taxable entity against which the unused tax losses can be utilized. Utilization of the tax losses depends on the ability of the taxable entity to satisfy certain tests at the time the losses are recouped.
Page | 10
PROTECH HOME MEDICAL CORP.
NOTES TO THE CONDENSED CONSOLIDATED
INTERIM FINANCIAL STATEMENTS
AMENDED AND RESTATED
(Tabular dollar amounts expressed in thousands of Canadian Dollars, except per share amounts)
Useful lives of property and equipment
The Company reviews the estimates for useful lives on an annual basis, or more frequently if events during the year indicate that a change may be required, with consideration given to technological obsolescence and other relevant business factors. A change in management’s estimate could impact depreciation/amortization expense and carrying value of property and equipment and intangible assets.
Lease liabilities
Estimate of lease term
When the Company recognizes a lease, it assesses the lease term based on the conditions of the lease and determines whether it will extend the lease at the end of the lease contract or exercise an early termination option. As it is not reasonably certain that the extension or early termination options will be exercised, the Company determined that the term of its leases are the lesser of original lease term or the life of the leased asset. This significant estimate could affect future results if the Company extends the lease or exercises an early termination option.
Incremental borrowing rate
When the Company recognizes a lease, the future lease payments are discounted using the Company’s incremental borrowing rate. This significant estimate impacts the carrying amount of the lease liabilities and the interest expense recorded on the consolidated statement of loss and comprehensive loss.
Property and equipment
Property and equipment is stated at cost less accumulated depreciation. Major renewals and improvements are charged to the property accounts, while maintenance, and repairs which do not extend the useful life of the respective assets, are expensed as incurred. Depreciation is computed using the straight-line method over the estimated useful lives of the respective assets.
The estimated useful lives of the assets are as follows:
Description | Estimated Useful Life | |
Rental equipment | 1-5 years | |
Computer equipment | 3-5 years | |
Office furniture and fixtures | 5-10 years | |
Leasehold improvements | Life of lease (1-7 years) | |
Right-of-use vehicles | 5 years | |
Right of use real estate leases | Life of lease (1-6 years) |
Depreciation of rental equipment commences once it has been deployed to a patient’s address and put in use. Property and equipment and other non-current assets with definite useful lives are tested for impairment whenever events or changes in circumstances indicate that their carrying amount may not be recoverable.
Page | 11
PROTECH HOME MEDICAL CORP.
NOTES TO THE CONDENSED CONSOLIDATED
INTERIM FINANCIAL STATEMENTS
AMENDED AND RESTATED
(Tabular dollar amounts expressed in thousands of Canadian Dollars, except per share amounts)
Intangible assets
The Company has recorded various intangible assets consisting primarily of non-compete agreements, trademarks, customer contracts and customer relationships. Non-compete agreements are the value associated with the non-compete agreements entered by the sellers of purchased companies. Trademarks are the purchase price allocation for the value associated with the trade name of the acquired company. Customer contracts are comprised of the purchase price allocation of the present value of expected future customer billings based on the statistical life of a customer. Customer relationships are the value given in the purchase price allocation to the long-term associations with referral sources such as doctors, medical centers, etc. Finite life intangible assets are amortized on a straight-line basis over the estimated useful lives of the related assets as follows:
Description | Estimated Useful Life | |
Non-compete agreements | 5 Years | |
Trademarks | 10 Years | |
Customer contracts | 2 Years | |
Customer relationships | 10 Years |
Gains or losses arising from de-recognition of an intangible asset are measured as the difference between the net disposal proceeds and the carrying amount of the asset and are recognized in the Statements of Net Loss and Comprehensive Loss when the asset is derecognized.
The Company reviews the estimates for useful lives on an annual basis, or more frequently if events during the year indicate that a change may be required, with consideration given to technological obsolescence and other relevant business factors. A change in management’s estimate could impact depreciation/amortization expense and the carrying value of property and equipment and intangible assets.
New standards and interpretations adopted
IFRS 16, Leases
Effective October 1, 2019, the Company adopted IFRS 16, Leases. IFRS 16 eliminates the distinction between operating and finance leases from the perspective of the lessee. All contracts that meet the definition of a lease will be recorded in the statement of financial position with a “right of use” asset and a corresponding liability at the present value of the future lease payments using the lessee’s incremental borrowing rate of 8%.
The Company elected to adopt IFRS 16 using the modified retrospective approach. Under this approach, the Company will not restate its comparative figures, but will recognize the cumulative effect of adopting IFRS 16 as an adjustment to opening statement of financial position, with the recognition of $3,456,000 of right of use assets and finance lease obligations on October 1, 2019. On the condensed consolidated statement of income, the impact of the adoption of IFRS 16 is to increase depreciation expense and interest expense and decrease operating expenses.
The Company elected to apply the practical expedient to exclude recognition of right of use assets and lease liabilities for real estate, computer equipment, and office furniture leases under 12 months in duration or for which the lease term ends within 12 months of initial application for leases, and for low-value assets. The Company also elected to apply IFRS 16 only to the contracts that were previously identified as leases. Contracts that were not identified as leases under IAS 17 Leases will not be reassessed for whether a lease exists.
Lease expenses for short-term leases totaled $219,000 and $746,000 for the three and nine months ended June 30, 2020.
As of October 1, 2019, approximately $1,934,000 of vehicles were already accounted for as lease liabilities.
Functional currency
The consolidated financial statements of the Company are presented in Canadian dollars, which is the parent Company’s presentation currency, but which differs from its functional currency, the US Dollar, which was determined using management’s judgment that the primary economic environment in which it will derive its revenue and expenses incurred to generate those revenues is the United States. Management has exercised judgment in selecting the functional currency of each of the entities that it consolidates based on the primary economic environment in which the entity operates and in reference to the various indicators including the currency that primarily influences or determines the selling prices of goods and services and the cost of production, including labor, material and other costs and the currency whose competitive forces and regulations mainly determine selling prices.
Page | 12
PROTECH HOME MEDICAL CORP.
NOTES TO THE CONDENSED CONSOLIDATED
INTERIM FINANCIAL STATEMENTS
AMENDED AND RESTATED
(Tabular dollar amounts expressed in thousands of Canadian Dollars, except per share amounts)
Business combinations
In accordance with IFRS 3 – Business Combination (“IFRS 3”), a transaction is recorded as a business combination if the significant assets, liabilities, or activities in addition to property and related mortgage debt assumed constitute a business. A business is defined as an integrated set of activities and assets, capable of being conducted and managed for the purpose of providing a return, lower costs, or other economic benefits. Where there are no such integrated activities, the transaction is treated as an asset acquisition. The estimation of the fair value of the assets and liabilities acquired in an acquisition is subject to judgement concerning estimating market values and predicting future events. These values are uncertain and can materially impact the carrying value of the acquired assets and the amount allocated to goodwill.
Recognition and initial measurement
The Company recognizes financial assets when it becomes party to the contractual provisions of the instrument. Financial assets are measured initially at their fair value plus, in the case of financial assets not subsequently measured at fair value through profit or loss, transaction costs that are directly attributable to their acquisition. Transaction costs attributable to the acquisition of financial assets subsequently measured at fair value through profit or loss are expensed in the consolidated statement of income (loss) and comprehensive income (loss) when incurred.
3. | Acquisition of businesses and purchase accounting |
Acquisition of Cooley Medical Equipment, Inc. (Cooley)
Effective October 1, 2019, the Company, through one of its indirect wholly owned subsidiaries, entered into a purchase agreement to acquire the shares of Cooley Medical Equipment, Inc. (Cooley), a Kentucky company in the same industry as the Company. The purchase price was $3,617,000, of which $3,089,000 was paid in cash at closing ($2,408 of which was paid to US Department of Justice against settlement of a litigation pending against the Cooley as on the date of acquisition, on behalf of seller), and the balance of $528,000 to be paid on the 18-month anniversary of the acquisition discounted at 3.86%. Of the cash portion of the purchase price, $2,416,000 was paid to the US Department of Justice to pay off a settlement agreement into which Cooley had entered .The Company has determined that the transaction is an acquisition of a business under IFRS 3, and it has been accounted for by applying the acquisition method. The Company expensed $55,000 of legal expenses in conjunction with the acquisition.
The acquired business contributed revenue of approximately $6,300,000 and net loss of approximately ($100,000) for the nine months ended to June 30, 2020, primarily due to depreciation expense.
The fair value of the acquired assets is provisional pending final valuations of the assets and is as follows:
Cash | $ | 106 | ||
Accounts receivable | 801 | |||
Inventory | 1,018 | |||
Prepaid assets | 55 | |||
Property and equipment | 2,532 | |||
Right of use assets | 1,338 | |||
Goodwill | 560 | |||
Intangible asset- Brand | 106 | |||
Intangible asset- Non-compete | 26 | |||
Intangible asset- Customer relationship | 437 | |||
Accounts payable and accrued liabilities | (1,079 | ) | ||
Deferred revenue | (271 | ) | ||
Equipment loans | (674 | ) | ||
Lease liabilities | (1,338 | ) | ||
Net assets acquired | $ | 3,617 | ||
Cash paid at closing | $ | 3,089 | ||
Cash to be paid after closing, included in accrued liabilities | 528 | |||
Consideration paid or payable | $ | 3,617 |
Page | 13
PROTECH HOME MEDICAL CORP.
NOTES TO THE CONDENSED CONSOLIDATED
INTERIM FINANCIAL STATEMENTS
AMENDED AND RESTATED
(Tabular dollar amounts expressed in thousands of Canadian Dollars, except per share amounts)
The goodwill is attributable to expected synergies from the combining operations. None of the goodwill is expected to be deductible for tax purposes.
Acquisition of Acadia Medical Supply, Inc. (Acadia)
Effective December 1, 2019, the Company, through PHM Logistics Corporation, entered into a purchase agreement to acquire the shares of Acadia Medical Supply, Inc. (Acadia), a Maine company in the same industry as the Company. The purchase price was $1,961,000, of which $1,334,000 was paid in cash at closing, and the balance of $627,000 to be paid on the one- and two-year anniversaries of the acquisition discounted at 3.86%. The Company has determined that the transaction is an acquisition of a business under IFRS 3, and it has been accounted for by applying the acquisition method. The Company expensed $29,000 of legal expenses included in operating expenses in conjunction with the acquisition.
Pro forma nine-month revenues and net income for Acadia for the nine months ended June 30, 2020 were approximately $3,200,000 and $500,000, respectively. Of those amounts, revenues of approximately $2,700,000 and net income of approximately $400,000 contributed to the Company’s results for the period from December 1, 2019 through June 30, 2020.
The fair value of the acquired assets is provisional pending final valuations of the assets and is as follows:
Cash | $ | 79 | ||
Accounts receivable | 190 | |||
Inventory | 327 | |||
Property and equipment | 516 | |||
Right of use asset | 321 | |||
Other assets | 10 | |||
Goodwill |
498 |
|||
Intangible Asset- Brand | 173 | |||
Intangible Asset- Non-compete | 40 | |||
Intangible Asset- Customer relationship | 611 | |||
Accounts payable and accrued liabilities |
(368)
|
|||
Deferred Revenue | (59 | ) | ||
Equipment loans | (181 | ) | ||
Lease liabilities | (196 | ) | ||
Net assets acquired | $ | 1,961 | ||
Cash paid at closing | $ | 1,334 | ||
Cash to be paid after closing, included in accrued liabilities | 303 | |||
Cash to be paid after closing, included in other long-term liabilities | 324 | |||
Consideration paid or payable | $ | 1,961 |
Prior Periods
During the nine months ended June 30, 2019, the Company acquired two businesses. The details of these acquisitions were disclosed in Note 7 of the Company’s annual financial statements for the year ended September 30, 2019.
Page | 14
PROTECH HOME MEDICAL CORP.
NOTES TO THE CONDENSED CONSOLIDATED
INTERIM FINANCIAL STATEMENTS
AMENDED AND RESTATED
(Tabular dollar amounts expressed in thousands of Canadian Dollars, except per share amounts)
4. | Accounts receivable |
Accounts receivable represents amounts due from insurance companies and patients:
As at June 30,
2020 |
As at September 30,
2019 |
|||||||
Gross receivable | $ | 16,645 | $ | 15,463 | ||||
Reserve for expected credit losses | (5,046 | ) | (3,073 | ) | ||||
$ | 11,599 | $ | 12,390 |
As at June 30, 2020 | Gross Receivables |
Allowance for
expected credit losses |
Net Receivables | |||||||||
0 – 90 days | $ | 10,529 | $ | (1,381 | ) | $ | 9,148 | |||||
91 – 180 days | 3,574 | (1,608 | ) | 1,966 | ||||||||
Over 180 days | 2,542 | (2,057 | ) | 485 | ||||||||
Total | $ | 16,645 | $ | (5,046 | ) | $ | 11,599 |
Below is the movement in the reserve for expected credit losses:
Reserve for expected credit losses |
Three months ended June 30, 2020 |
Year ended September 30, 2019 |
||||||
Opening Balance | $ | 3,073 | $ | 2,501 | ||||
Bad debt expense | 7,061 | 4,171 | ||||||
Bad debt expense – discontinued operations | - | 62 | ||||||
Amounts written off | (5,088 | ) | (3,661 | ) | ||||
Ending Balance | $ | 5,046 | $ | 3,073 |
5. | Inventory |
As at June 30, | As at September 30, | |||||||
2020 | 2019 | |||||||
Serialized | $ | 1,441 | $ | 1,038 | ||||
Non-serialized | 6,034 | 3,770 | ||||||
Reserve for slow-moving | (161 | ) | (70 | ) | ||||
Total Inventory | $ | 7,314 | $ | 4,738 |
Page | 15
PROTECH HOME MEDICAL CORP.
NOTES TO THE CONDENSED CONSOLIDATED
INTERIM FINANCIAL STATEMENTS
AMENDED AND RESTATED
(Tabular dollar amounts expressed in thousands of Canadian Dollars, except per share amounts)
The reserve for slow-moving is included under cost of inventory sold in the condensed consolidated interim statement of (loss and comprehensive (loss) income.
6. | Property and equipment and right of use assets |
Cost | Rental equipment | Computer equipment | Office furniture and fixtures | Leasehold improvements | Right of use assets - Vehicles |
Right
of use assets – Real estate |
Total |
|||||||||||||||||||||
Balance September 30, 2018 | $ | 37,201 | $ | 1,173 | $ | 635 | $ | 1,364 | $ | 2,875 | $ | - | $ | 43,248 | ||||||||||||||
Transfers from inventory | 6,387 | - | - | - | - | - | 6,387 | |||||||||||||||||||||
Additions | - | 51 | 2 | 105 | 562 | - | 720 | |||||||||||||||||||||
Acquisitions | 121 | - | 7 | 98 | 118 | - | 344 | |||||||||||||||||||||
Disposals | (9,743 | ) | (464 | ) | (38 | ) | (4 | ) | (418 | ) | - | (10,667 | ) | |||||||||||||||
Foreign exchange | 324 | 9 | 7 | 12 | 25 | - | 377 | |||||||||||||||||||||
Balance June 30, 2019 | $ | 34,290 | $ | 769 | $ | 613 | $ | 1,575 | $ | 3,162 | $ | - | $ | 40,409 |
Cost | Rental equipment | Computer equipment | Office furniture and fixtures | Leasehold improvements | Right of use assets - Vehicles |
Right
of use assets – Real estate |
Total | |||||||||||||||||||||
Balance September 30, 2019 | $ | 35,377 | $ | 668 | $ | 574 | $ | 1,548 | $ | 3,426 | $ | - | $ | 41,593 | ||||||||||||||
Additions – adoption of IFRS 16 | - | - | - | - | - | 3,456 | 3,456 | |||||||||||||||||||||
Transfers from inventory | 7,876 | - | - | - | - | - | 7,876 | |||||||||||||||||||||
Additions | - | 9 | - | 81 | 912 | 1,379 | 2,381 | |||||||||||||||||||||
Acquisitions | 2,804 | - | - | 244 | 211 | 1,448 | 4,707 | |||||||||||||||||||||
Disposals | (15,100 | ) | (360 | ) | (134 | ) | (200 | ) | (899 | ) | (7 | ) | (16,700 | ) | ||||||||||||||
Foreign exchange | 670 | 18 | 21 | 157 | 196 | 25 | 1,087 | |||||||||||||||||||||
Balance June 30, 2020 | $ | 31,627 | $ | 335 | $ | 461 | $ | 1,830 | $ | 3,846 | $ | 6,301 | $ | 44,400 |
Accumulated Depreciation | Rental equipment | Computer equipment | Office furniture and fixtures | Leasehold improvements | Right of use assets - Vehicles |
Right
of use assets – Real estate |
Total | |||||||||||||||||||||
Balance September 30, 2018 | $ | 19,676 | $ | 753 | $ | 303 | $ | 263 | $ | 1,365 | $ | - | $ | 22,360 | ||||||||||||||
Depreciation | 8,467 | 140 | 81 | 99 | 457 | - | 9,244 | |||||||||||||||||||||
Disposals | (9,858 | ) | (359 | ) | (38 | ) | (4 | ) | (408 | ) | - | (10,667 | ) | |||||||||||||||
Foreign exchange | 434 | 13 | 6 | 48 | 90 | - | 591 | |||||||||||||||||||||
Balance June 30, 2019 | $ | 18,719 | $ | 547 | $ | 352 | $ | 406 | $ | 1,504 | $ | - | $ | 21,528 |
Accumulated Depreciation | Rental equipment | Computer equipment | Office furniture and fixtures | Leasehold improvements | Right of use assets - Vehicles |
Right
of use assets – Real estate |
Total | |||||||||||||||||||||
Balance September 30, 2019 | $ | 19,557 | $ | 491 | $ | 344 | $ | 340 | $ | 1,365 | $ | - | $ | 22,097 | ||||||||||||||
Depreciation | 11,227 | 87 | 74 | 147 | 643 | 1,473 | 13,651 | |||||||||||||||||||||
Disposals | (15,100 | ) | (360 | ) | (134 | ) | (200 | ) | (706 | ) | (7 | ) | (16,507 | ) | ||||||||||||||
Foreign exchange | 487 | 12 | 13 | 109 | 119 | 3 | 743 | |||||||||||||||||||||
Balance June 30, 2020 | $ | 16,171 | $ | 230 | $ | 297 | $ | 396 | $ | 1,421 | $ | 1,469 | $ | 19,984 |
Page | 16
PROTECH HOME MEDICAL CORP.
NOTES TO THE CONDENSED CONSOLIDATED
INTERIM FINANCIAL STATEMENTS
AMENDED AND RESTATED
(Tabular dollar amounts expressed in thousands of Canadian Dollars, except per share amounts)
Net Book Value |
Rental equipment |
Computer equipment |
Office furniture and fixtures |
Leasehold improvements |
Right of use assets –Vehicles |
Right of use assets – Real estate |
Total |
|||||||||||||||||||||
Balance September 30, 2018 |
$ | 17,525 | $ | 420 | $ | 332 | $ | 1,101 | $ | 1,510 | $ | - | $ | 20,888 | ||||||||||||||
Balance June 30, 2019 | $ | 15,571 | $ | 222 | $ | 261 | $ | 1,169 | $ | 1,658 | $ | - | $ | 18,881 | ||||||||||||||
Balance September 30, 2019 | $ | 15,820 | $ | 177 | $ | 230 | $ | 1,208 | $ | 2,061 | $ | - | $ | 19,496 | ||||||||||||||
Balance June 30, 2020 | $ | 15,456 | $ | 105 | $ | 164 | $ | 1,434 | $ | 2,425 | $ | 4,832 | $ | 24,416 |
During the periods ended June 30, 2020 and September 30, 2019, the Company purchased rental equipment through the conversion of accounts payable to loans arranged by the vendor with a financing institution of $8,138,000 and $10,040,000, respectively (see note 9)
7. | Goodwill and intangible assets |
Cost | Goodwill | Non-compete agreements | Brand | Customer contracts | Customer relationships | Sub-total intangibles with finite lives | Total | |||||||||||||||||||||
Balance September 30, 2018 | $ | 1,839 | $ | 669 | $ | 1,736 | $ | 4,826 | $ | 10,994 | $ | 18,225 | $ | 20,064 | ||||||||||||||
Disposals | - | - | - | - | (30 | ) | (30 | ) | (30 | ) | ||||||||||||||||||
Acquisitions | 1,224 | - | - | -- | - | - | 1,224 | |||||||||||||||||||||
Impairment of goodwill | (531 | ) | - | - | - | - | - | (531 | ) | |||||||||||||||||||
Foreign exchange | 16 | 8 | 19 | 53 | 121 | 201 | 217 | |||||||||||||||||||||
Balance June 30, 2019 | $ | 2,548 | $ | 677 | $ | 1,755 | $ | 4,879 | $ | 11,085 | $ | 18,396 | $ | 20,944 | ||||||||||||||
Balance September 30, 2019 | $ | 1,881 | $ | 684 | $ | 1,776 | $ | 5,099 | $ | 11,204 | $ | 18,763 | $ | 20,644 | ||||||||||||||
Acquisitions | 1,058 | 66 | 279 | - | 1,048 | 1,393 | 2,451 | |||||||||||||||||||||
Effects of changes in exchange rates | 183 | 20 | 52 | 148 | 330 | 550 | 733 | |||||||||||||||||||||
Balance June 30, 2020 | $ | 3,122 | $ | 770 | $ | 2,107 | $ | 5,247 | $ | 12,582 | $ | 20,706 | $ | 23,828 |
Accumulation amortization | Goodwill | Non-compete agreements | Brand | Customer contracts | Customer relationships | Sub-total intangibles with finite lives | Total | |||||||||||||||||||||
Balance September 30, 2018 | $ | - | $ | 575 | $ | 1,047 | $ | 4,826 | $ | 8,502 | $ | 14,950 | $ | 14,950 | ||||||||||||||
Additions | - | 36 | 79 | - | 340 | 455 | 455 | |||||||||||||||||||||
Disposals | - | - | - | - | (30 | ) | (30 | ) | (30 | ) | ||||||||||||||||||
Effect of changes in exchange rates | - | 7 | 10 | 53 | 88 | 158 | 158 | |||||||||||||||||||||
Balance June 30, 2019 | $ | - | $ | 618 | $ | 1,136 | $ | 4,879 | $ | 8,900 | $ | 15,533 | $ | 15,533 | ||||||||||||||
Balance September 30, 2019 | $ | - | $ | 636 | $ | 1,176 | $ | 4,937 | $ | 9,103 | $ | 15,852 | $ | 15,852 | ||||||||||||||
Amortization | - | 42 | 100 | 139 | 387 | 668 | 668 | |||||||||||||||||||||
Effect of changes in exchange rates | - | 20 | 31 | 144 | 270 | 465 | 465 | |||||||||||||||||||||
Balance June 30, 2020 | $ | - | $ | 698 | $ | 1,307 | $ | 5,220 | $ | 9,760 | $ | 16,985 | $ | 16,985 |
Page | 17
PROTECH HOME MEDICAL CORP.
NOTES TO THE CONDENSED CONSOLIDATED
INTERIM FINANCIAL STATEMENTS
AMENDED AND RESTATED
(Tabular dollar amounts expressed in thousands of Canadian Dollars, except per share amounts)
Net carrying amount |
Goodwill |
Non-compete agreements |
Brand |
Customer contracts |
Customer relationships |
Sub-total intangibles with finite lives |
Total |
|||||||||||||||||||||
Balance September 30, 2018 | $ | 1,839 | $ | 94 | $ | 689 | $ | - | $ | 2,492 | $ | 3,275 | $ | 5,114 | ||||||||||||||
Balance June 30, 2019 | $ | 2,548 | $ | 59 | $ | 619 | $ | - | $ | 2,185 | $ | 2,863 | $ | 5,411 | ||||||||||||||
Balance September 30, 2019 | $ | 1,881 | $ | 48 | $ | 600 | $ | 162 | $ | 2,101 | $ | 2,911 | $ | 4,792 | ||||||||||||||
Balance June 30, 2020 | $ | 3,122 | $ | 72 | $ | 800 | $ | 27 | $ | 2,822 | $ | 3,721 | $ | 6,843 |
The Company’s goodwill impairment testing for the nine months ended June 30, 2019 determined that the carrying value of Central Oxygen CGU exceeded their value in use, and as a result, the Company recorded a goodwill impairment charge of $531,000. The impairment resulted from a decline in the expected performances of these businesses relative to expectations at the time the acquisition was consummated.
The impairment was determined based on a value in use calculation which uses cash flow projections covering a five-year period and a discount rate of 17% per annum. The cash flows beyond the five-year period have been extrapolated using (terminal growth rates of 0% to 3%) per annum growth rate.
No impairment has been recognized in the three or nine months ended June 30, 2020 as carrying value of the applicable CGUs was less than the value in use as of June 30, 2020.
8. | Deferred Income - CARES Act |
During the three months ended June 30, 2020, the Company received payments related to the two separate provisions of the CARES Act.
Payroll Protection Plan (“PPP’)
On April 21, 2020, the Company received approximately $6,000,000 (approximately $5,800,000 at the June 30 exchange rate) related to the PPP, which was to assist companies in maintaining their workforce. The PPP provided for loans to qualifying businesses for amounts up to 2.5 times of the average monthly payroll expenses. The loans and accrued interest are forgivable as long as the borrower uses the loan proceeds for eligible purposes, including payroll, benefits, rent, and utilities for up to twenty-four weeks, and maintains certain payroll levels. The unforgiven portion of the PPP loan is payable over two years at an interest rate of 1%, with a deferral of payments for the first six months.
Since the Company expects to meet the PPP’s eligibility criteria and has concluded that the PPP loan represents, in substance, a grant that is expected to be forgiven, it has accounted for the proceeds under IAS 20, Accounting for Government Grants and Disclosure of Government Assistance. The cash inflow has been reported as a deferred income liability.
Public health and Social Services Emergency Fund (“Relief Fund”)
During the three months ended June 30, 2020, the Company received approximately $2,400,000 from the Relief Fund, which was established to support healthcare providers to prevent, prepare for, and respond to coronavirus, including health care related expenses or lost revenues, subject to certain terms and conditions. If those terms and conditions are met, payments do not need to be repaid. No expenses related to the PPP can be used to meet the terms and conditions for the Relief Fund.
Since the Company expects to meet the Relief Fund’s terms and conditions, it has accounted for the proceeds under IAS 20, Accounting for Government Grants and Disclosure of Government Assistance. The cash inflow has been reported as a financing activity. The original proceeds were recognized as a liability, which was reduced based on certain related costs relates incurred. The reduction of the liability by $643,000 has been included under other expense / (income) in the statement of loss and other comprehensive loss.
Page | 18
PROTECH HOME MEDICAL CORP.
NOTES TO THE CONDENSED CONSOLIDATED
INTERIM FINANCIAL STATEMENTS
AMENDED AND RESTATED
(Tabular dollar amounts expressed in thousands of Canadian Dollars, except per share amounts)
9. | Long-Term Debt |
Debentures
On March 7, 2019, the Company issued $15,000,000 in 8.0% Convertible Unsecured Debentures due March 7, 2024, with interest payable semi-annually on June 30 and December 31. Each $1,000 debenture is convertible at the option of the holder into approximately 769.23 common shares. After three years, the Company can force conversion of the outstanding principal at conversion price of $1.30, if the daily volume weighted average price of the common shares exceeds $1.62 per share for twenty consecutive trading days. The debenture agreement also allows for payment of cash in lieu of common shares upon exercise of conversion right by the holder, equivalent of the market price on the conversion date.
The Company issued compensation options to the underwriters for 519,231 shares of the Company at an exercise price of $1.30 for a period of two years from the closing of the transaction. The fair value of the options has been valued at $0.34 for a total of $175,000, using the Black-Scholes pricing model with the following assumptions:
Exercise price per share | $ | 1.30 | ||
Risk-free interest rate | 1.62 | % | ||
Expected volatility | 87.4 | % | ||
Expected life of option | 2 years | |||
Expected dividend yield | 0.0 | % |
Compensation options activity for the nine months ended June 30, 2020 is provided below:
Number
(000s) |
Weighted
average exercise price |
|||||||
Balance, September 30, 2019 | 519 | $ | 1.30 | |||||
Balance, June 30, 2020 | 519 | $ | 1.30 |
The debentures contain multiple embedded derivatives including conversion right, forced conversion option and payment in lieu of common shares. Since the Company is unable to measure the fair value of embedded derivatives reliably, it has chosen to designate the convertible debentures in their entirety (including conversion right, forced conversion option and payment in lieu of common shares) to be subsequently measured at fair value through profit or loss (FVTPL).
The debentures are valued at fair value using the current trading price of $103 and $93 per unit as of June 30, 2020 and September 30, 2019, with the change in fair market value resulting in a loss of $3,314,000 and $1,495,000 being recorded in the statement of income (loss) and other comprehensive (loss) income for the three and nine months ended June 30, 2020, respectively.
Nine months ended
June 30, 2020 |
Year ended
September 30, 2019 |
|||||||
Beginning Balance | $ | 13,966 | $ | - | ||||
Issued | - | 15,000 | ||||||
Change in fair value | 1,495 | (1,034 | ) | |||||
Ending Balance | $ | 15,461 | $ | 13,966 |
During 2014, the Company issued $8,625,000 in unsecured subordinated debentures due December 31, 2019. The debentures were repaid in April 2019 for $8,970,000, including a prepayment premium. The carrying value of the debentures at settlement was $7,863,000, resulting in a loss on early extinguishment of $1,107,000 due to unaccreted balance and premium paid due to early settlement.
Page | 19
PROTECH HOME MEDICAL CORP.
NOTES TO THE CONDENSED CONSOLIDATED
INTERIM FINANCIAL STATEMENTS
AMENDED AND RESTATED
(Tabular dollar amounts expressed in thousands of Canadian Dollars, except per share amounts)
Equipment Loans
The Company is offered financing arrangements from their suppliers and their designated financial institution, in which payments for certain invoices or products can be financed and paid over an extended period. The financial institution pays the supplier when the original invoice becomes due, and the Company pays the third-party financial institution over a period of time. In some cases, the supplier accepts a discounted amount from the financial institution and the Company repays the financial institution the face amount of the invoice with no stated interest, in twelve equal monthly installments. The Company uses a 6% incremental borrowing rate to impute interest on these arrangements. In other cases, the supplier receives the full invoice price and Company pays a stated interest rate to the financial institution, ranging from 5.6% to 8.0%, with the terms of the financing ranging from 12 to 48 months. There are no covenants with the loans and the carrying value of the equipment that is pledged as security against these loans is $9,950,000.
Below is the movement in equipment loans for the nine months ended June 30, 2020:
Balance, September 30, 2018 | $ | 12,825 | ||
Additions | 10,040 | |||
Interest expense | 840 | |||
Repayments of principal and interest | (14,785 | ) | ||
Effect of changes in exchange rates | 755 | |||
Balance, September 30, 2019 | $ | 9,675 | ||
Additions: | ||||
Acquisitions | 856 | |||
Operations | 8,138 | |||
Interest expense | 422 | |||
Repayments of principal and interest | (11,326 | ) | ||
Effect of changes in exchange rates | 323 | |||
Balance, June 30, 2020 | $ | 8,088 | ||
Current portion | (7,248 | ) | ||
Long-term portion, due in 2021 | $ | 840 |
Lease Liabilities
Vehicle leases are recorded at rates implicit in the lease based on the current and estimated residual value of the vehicle, equating to rates ranging from 1.7% to 10.4%, and real estate leases are recorded at the incremental borrowing rate of 8%.
Below is the movement in lease liabilities for the nine months ended June 30, 2020:
Vehicles
Leases |
Right of use
assets – real estate leases |
Total | ||||||||||
Balance, September 30, 2019 | $ | 1,934 | $ | - | $ | 1,934 | ||||||
Additions during the period: | ||||||||||||
Adoption of IFRS 16, Leases | - | 3,456 | 3,456 | |||||||||
Acquisitions | 211 | 1,448 | 1,534 | |||||||||
Operations | 912 | 1,379 | 2,291 | |||||||||
Interest expense | 191 | 360 | 551 | |||||||||
Repayments | (986 | ) | (1,550 | ) | (2,536 | ) | ||||||
Effect of changes in exchange rates | (18 | ) | 26 | 8 | ||||||||
Balance, June 30,2020 | $ | 2,244 | $ | 5,119 | $ | 7,363 | ||||||
Current portion | (584 | ) | (2,004 | ) | (2,588 | ) | ||||||
Long-term portion | 1,661 | 3,114 | 4,775 |
Page | 20
PROTECH HOME MEDICAL CORP.
NOTES TO THE CONDENSED CONSOLIDATED
INTERIM FINANCIAL STATEMENTS
AMENDED AND RESTATED
(Tabular dollar amounts expressed in thousands of Canadian Dollars, except per share amounts)
Additions during the period are comprised of rental equipment and vehicles at incremental borrowing rates between 6% and 7.5% with final maturities through 2024, and real estate at the incremental borrowing rate of 8% with final maturities through 2026.
Future payments pursuant to lease liabilities and equipment loans are as follows:
As at
June 30, 2020 |
As at
September 30, 2019 |
|||||||
Less than 1 year | $ | 3,057 | $ | 595 | ||||
Between 1 and 5 years | 5,949 | 1,685 | ||||||
More than five years | - | - | ||||||
Gross lease payments | $ | 9,006 | $ | 2,280 | ||||
Less: Finance charges | (1,643 | ) | (346 | ) | ||||
Net lease liabilities | $ | 7,363 | $ | 1,934 |
10. | Share capital |
Bought deals and private placement
On June 29, 2020, the Company completed a bought deal public offering, a concurrent brokered private placement, and a non-brokered private placement to the Company’s Chief Executive Officer and a director of the Company, for 25,001,000, 1,750,000, and 927,826 units, respectively. The 1,750,000 units were subject to 4-month restriction. Each unit issued was issued at a price of $1.15 for total gross proceeds of $31,831,000, and consisted of one common share and one-half of one common share purchase warrant (each whole warrant, a “Warrant”). The Warrants are recorded as a liability since they are denominated in Canadian Dollars and the Company’s functional currency is US Dollars. The fair value of the Warrants was recorded as a liability and valued at June 29, 2020, at $0.16 for a total of $2,208,000, using the Black-Scholes pricing model. Upon exercise, the warrant liability will be derecognized and transferred to equity.
Issuance costs of $3,873,000 in cash, including underwriters’ commission of $1,692,000, were incurred. These costs were allocated ratably between common shares and warrant liability, with $3,589,000 recorded as a reduction of shareholders’ equity and $284,000 recorded as “Transaction costs on issuance of financial liabilities” on the consolidated statement of (loss) income. The Company issued compensation options to the underwriter for 1,471,305 shares at the issue price of $1.15 for a period of two years from the closing of the offering. The fair value of the options has been valued at $0.42 for a total of $622,000, using the Black-Scholes pricing model with the following assumptions:
Exercise price per share | $ | 1.15 | ||
Share price at date of issuance | $ | 1.12 | ||
Risk-free interest rate | 0.25 | % | ||
Expected volatility | 71.0 | % | ||
Expected life of option | 2 years | |||
Expected dividend yield | 0.00 | % |
Warrant activity for the nine months ended June 30, 2020 is provided below:
Number
(000s) |
Weighted
average exercise price |
|||||||
Balance, September 30, 2019 | - | $ | - | |||||
Issued | 13,839 | 1.60 | ||||||
Balance, June 30, 2020 | 13,839 | $ | 1.60 |
Page | 21
PROTECH HOME MEDICAL CORP.
NOTES TO THE CONDENSED CONSOLIDATED
INTERIM FINANCIAL STATEMENTS
AMENDED AND RESTATED
(Tabular dollar amounts expressed in thousands of Canadian Dollars, except per share amounts)
Activity for the June 2020 compensation options for the nine months ended June 30, 2020 is as follows:
Number
(000s) |
Weighted
average exercise price |
|||||||
Balance, September 30, 2019 | - | $ | - | |||||
Issued | 1,471 | 1.15 | ||||||
Balance, June 30, 2020 | 1,471 | $ | 1.15 |
On November 2, 2018, the Company completed a bought deal offering of 5,649,600 common shares of the Company at a price of $0.60 per share for gross proceeds to the Company of $3,390,000. In conjunction with this transaction, the Company also completed non-brokered private placement of 1,833,333 common shares to officers and directors at the $0.60 issue price for gross proceeds to the Company of $1,100,000. Issuance costs of $343,000 in cash were incurred. The Company also issued to the underwriter compensation options equal to 6.5% of the offered shares (367,224 options). Each compensation option is exercisable into one common share of the Company at the issue price for a period of 24 months from the closing of the offering. These shares are recorded as compensation options at $0.60 per share. The fair value of the options has been valued using the Black-Scholes option pricing model.
Stock options and grants
The Company has a stock option plan, which it uses for grants to directors, officers, employees, and consultants. Options granted under the plan are non-assignable and may be granted for a term not exceeding ten years. Stock options generally vest either immediately or quarterly over a two-year period.
A summary of stock options is provided below:
Number of options
(000’s) |
Weighted
average exercise price |
|||||||
Balance, September 30, 2019 | 11,392 | $ | 0.49 | |||||
Granted | 100 | 1.10 | ||||||
Exercised | (517 | ) | 0.58 | |||||
Forfeited | (22 | ) | 0.38 | |||||
Expired | (237 | ) | 0.95 | |||||
Balance, June 30, 2020 | 10,716 | $ | 0.48 |
At June 30, 2020, the Company had 10,533,420 vested stock options with a weighted average exercise price of $0.48.
The Company accounts for stock-based compensation, including stock options and stock grants, using the fair value method as prescribed by IFRS 2. Under this method, the fair value of stock options at the date of grant is expensed over the vesting period and the offsetting credit is recorded as an increase in contributed surplus.
For the three months ended June 30, 2020 and 2019, the Company recorded stock-based compensation expense of $73,000 and $446,000, respectively.
For the nine months ended June 30, 2020 and 2019, the Company recorded stock-based compensation expense of $207,000 and $1,337,000, respectively.
The fair value of the stock options has been charged to the statement of loss and comprehensive loss and credited to contributed surplus over the proper vesting period, using the Black-Scholes option pricing model calculated using the following assumptions:
Nine months ended | Nine months ended | |||||||
June 30, 2020 | June 30, 2019 | |||||||
Exercise price per share | $ | 1.10 | $ | 0.63 | ||||
Risk-free interest rate | 1.64 | % | 2.24 | % | ||||
Expected volatility | 83.2 | % | 118.17 | % | ||||
Expected life of option | 4 years | 10 years | ||||||
Expected dividend yield | Nil | Nil |
Page | 22
PROTECH HOME MEDICAL CORP.
NOTES TO THE CONDENSED CONSOLIDATED
INTERIM FINANCIAL STATEMENTS
AMENDED AND RESTATED
(Tabular dollar amounts expressed in thousands of Canadian Dollars, except per share amounts)
11. | Commitments and Contingencies |
Commitments
The Company leases certain facilities with terms of less than a year that are classified as operating leases. Future payments pursuant to these leases are $155,000 as of September 30, 2020 and $32,000 as of June 30, 2020, which are all due in less than one year.
Contingencies
The Company has been in litigation with Lightwater Long Short Fund (“Lightwater”) for the year ended September 30, 2019 and nine months ended June 30, 2020. The litigation is due to Lightwater claiming damages for matters related to subscription agreements in a prior private placement. Management and legal believe that this lawsuit is without merit and is unpredictable. It is uncertain currently to determine the outcome of this lawsuit or our potential liability, if any.
In March 2019, the Company experienced an unlawful and undiscovered intrusion into its email system, which resulted in fraudulent banking information being relayed regarding the transfer of funds on April 30, 2019 to satisfy the then outstanding debentures. The intruder was able to mislead certain parties with inaccurate requests and instructions and in doing so, caused the funds of $9,200,000 to be transferred into an account of a criminal third party outside North America. The fraud was uncovered on May 3, 2019, and the Company took immediate action to stop or undo the transfer and simultaneously started action to recover the amounts transferred. The Company has successfully retrieved $8,600,000 of the funds and is in process of enforcing a court order to have the rest of the $600,000 of funds returned.
From time to time, the Company is involved in various legal proceedings arising from the ordinary course of business, none of the matters in which the Company is currently involved, either individually, or in the aggregate, have a quantifiable exposure and are not expected to have a material adverse effect on the Company’s consolidated financial position, results of operations, or cash flows.
12. | Operating Expenses |
Three months ended
June 30, 2020 |
Three months ended June 30, 2019 |
Nine months ended
June 30, 2020 |
Nine months ended
June 30, 2019 |
|||||||||||||
Employee salary and benefits | $ | 7,828 | $ | 6,510 | $ | 23,239 | $ | 19,403 | ||||||||
Facilities | 489 | 862 | 1,835 | 2,570 | ||||||||||||
Bad debt expense (Note 4) | 2,224 | 1,341 | 7,061 | 4,233 | ||||||||||||
Billing | 668 | 411 | 1,619 | 1,261 | ||||||||||||
Professional fees | 394 | 169 | 1,045 | 985 | ||||||||||||
Marketing Costs | 122 | 155 | 529 | 458 | ||||||||||||
All other | 1,388 | 1,156 | 4,308 | 3,478 | ||||||||||||
Total Operating Expenses | $ | 13,113 | $ | 10,604 | $ | 39,636 | $ | 32,388 |
13. | Income (Loss) per share |
The following reflects the earnings and share data used in the basic and diluted income (loss) per share computations:
Three months ended
June 30, 2020 |
Three months ended
June 30, 2019 |
Nine months ended
June 30, 2020 |
Nine months ended
June 30, 2019 |
|||||||||||||
Net income (loss) for continuing operations | $ | (3,382 | ) | $ | (12,564 | ) | $ | (5,068 | ) | $ | (14,073 | ) | ||||
Net income (loss) for discontinued operations | - | 25 | (1,158 | ) | 607 | |||||||||||
Basic weighted average number of shares | 84,261 | 83,529 | 83,834 | 82,627 | ||||||||||||
Diluted weighted average number of shares | 84,261 | 89,093 | 83,834 | 88,191 | ||||||||||||
Basic – continuing operations | $ | (0.04 | ) | $ | (0.15 | ) | $ | (0.06 | ) | $ | (0.17 | ) | ||||
Diluted – continuing operations | (0.04 | ) | (0.15 | ) | (0.06 | ) | (0.17 | ) | ||||||||
Basic – discontinued operations | - | - | (0.01 | ) | 0.01 | |||||||||||
Diluted – discontinued operations | - | - | (0.01 | ) | 0.01 | |||||||||||
Total - Basic | $ | (0.04 | ) | $ | (0.15 | ) | $ | (0.07 | ) | $ | (0.16 | ) | ||||
Total - Diluted | $ | (0.04 | ) | $ | (0.15 | ) | $ | (0.07 | ) | $ | (0.16 | ) |
Page | 23
PROTECH HOME MEDICAL CORP.
NOTES TO THE CONDENSED CONSOLIDATED
INTERIM FINANCIAL STATEMENTS
AMENDED AND RESTATED
(Tabular dollar amounts expressed in thousands of Canadian Dollars, except per share amounts)
14. | Related party transactions |
The Company has six market rate leases for office, warehouse, and retail space with a rental Company affiliated with the Company’s Chief Executive Officer, the majority of which were entered into in 2015. The leases have a combined area of 74,520 square feet. Lease payments under these leases are approximately $68,000 per month, plus taxes, utilities, and maintenance.
Payments of $59,000 and $56,000 were made to the members of the Board of Directors for the three months ended June 30, 2020 and 2019, respectively. Payments of $171,000 and $164,000 were made to members of the Board of Directors for the nine months ended June 30, 2020 and 2019, respectively.
Key management personnel also participate in the Company’s share option program (see Note 10). The Company paid or accrued compensation to key management personnel the following:
Three months ended
June 30, 2020 |
Three months ended
June 30, 2019 |
Nine months ended
June 30, 2020 |
Nine months ended
June 30, 2019 |
|||||||||||||
Salaries and Benefits | $ | 272 | $ | 237 | $ | 791 | $ | 1,225 | ||||||||
Stock-based compensation | - | 296 | - | 858 | ||||||||||||
Total | $ | 272 | $ | 533 | $ | 791 | $ | 2,083 |
On May 10, 2019, the Company entered into a secured loan agreement with one of the Company’s shareholders for $3,428,000 (US$2,600,000) The loan bore interest at prime rate to be paid out semi-annually commencing on June 2019 and thereafter on every June 30 and December 31. The loan was to mature on May 10, 2021; however, it was fully repaid on September 12, 2019.
15. | Discontinued Operations |
On July 29, 2019, the Company sold the assets of Patient Home Monitoring, Inc. The consolidated financial statements and the notes reflect the Patient Home Monitoring, Inc. as discontinued operations. There are ongoing litigation matters involving Patient Home Monitoring, Inc. During the nine months ended June 30, 2020, the Company incurred legal fees to defend itself, and in one of the matters, reached a settlement. The second matter remains unresolved. These matters are directly related to the operations of the disposed business, and as such, are reflected as discontinued operations. Prior period amounts have been reclassified in order to be comparable to the current year presentation, as follows:
|
Three months ended
June 30, 2020 |
Three months ended
June 30, 2019 |
Nine months ended
|
Nine months ended
|
||||||||||||
Revenue | $ | - | $ | 959 | $ | - | $ | 3,239 | ||||||||
Inventory Sold | - | 270 | - | 450 | ||||||||||||
Operating Expenses | - | 554 | (1,158 | ) | 1,840 | |||||||||||
Depreciation | - | 110 | - | 342 | ||||||||||||
Net income (loss) from discontinued operations | $ | - | $ | 25 | $ | (1,158 | ) | $ | 607 |
For the periods ended June 30, 2020 and 2019, Patient Home Monitoring, Inc. was classified as a discontinued operation. There are ongoing litigation matters involving Patient Home Monitoring, Inc. During the period ended June 30, 2020, the Company accrued legal fees of $452,000 to defend itself, and in one of the matters, reached a settlement of $67,000. The Company also reached a settlement in principle of $639,000 for certain ongoing litigation, which was not formally finalized. These matters are directly related to the operations of the disposed business, and as such, are reflected as discontinued operations. As of June 30, 2020, $742,000 relating to above discontinued operations were included in accrued liabilities.
Page | 24
PROTECH HOME MEDICAL CORP.
NOTES TO THE CONDENSED CONSOLIDATED
INTERIM FINANCIAL STATEMENTS
AMENDED AND RESTATED
(Tabular dollar amounts expressed in thousands of Canadian Dollars, except per share amounts)
16. | Subsequent Events |
Health Technology Resources, L.L.C.
Effective August 17, 2020, the Company, through PHM Logistics Corporation, entered into a purchase agreement to acquire the shares of Health Technology Resources, L.L.C. (“HTR”), an Illinois company in the same industry as the Company. The purchase price was $7,062,000, of which $6,364,000 was paid in cash at closing, and the balance of $698,000 to be paid after closing. The $698,000 is comprised of (a) a holdback due on the two-year anniversary of the acquisition discounted at 3.86% for a value of $243,000, (b) Payroll Protection Plan funds of $274,000 to be paid on upon forgiveness, and (c) an earnout valued at $181,000. The earnout could be as high as $660,000 and the fair value was based on a Monte Carlo simulation.
Pro forma nine-month revenues and net income for HTR had the acquisition occurred on October 1, 2019 were approximately $4,125,000 and $1,500,000, respectively.
Sleepwell, LLC
Effective October 23, 2020, the Company, through PHM Logistics Corporation, entered into a purchase agreement to acquire Sleepwell, LLC, a Georgia company, and its wholly owned subsidiary, Halsom Home Care, an Ohio company (collectively, “Sleepwell”). The purchase price was approximately US$11,100,000, of which approximately US$6,600,000 was paid in cash at closing, approximately US$2,800,000 was paid in common stock in January 2021, and approximately US$1,700,000 of holdbacks payable in common stock of US$1,100,000 on August 31, 2022 and US$600,000 in cash, payable upon resolution of post-closing adjustments, if any, and Sleepwell’s PPP loan.
Pro forma nine-month Sleepwell revenues and net income had the acquisition occurred October 1, 2019 would have been $9,750,000 and $1,875,000, respectively.
Mayhugh Drugs, Inc., dba Mayhugh’s Medical
Effective February 1, 2021, the Company, through PHM Logistics Corporation, entered into a purchase agreement to acquire Mayhugh Drugs, Inc., (“Mayhugh”) a Florida company. The purchase price was $1,190,000, of which $515,000 was paid in cash at closing, with $575,000 of holdbacks payable on the six-month and twelve-month anniversaries of the closing.
Pro forma nine-month Mayhugh revenues and net income had the acquisition occurred October 1, 2019 would have been $4,167,000 and $1,062,000, respectively.
17. | Restatement |
During the preparation of the consolidated financial statements as of and for the year ended September 30, 2020, the Company identified certain errors and adjustments in the application of its accounting policies. As such, the financial statements for the three months ended June 30, 2020 and 2019, and as of September 30, 2019 have been restated to reflect of these adjustments, as set out below.
a) | Deferred revenue |
The Company rents medical equipment to customers for a fixed monthly amount on a month-to-month basis. During prior periods, the monthly rental revenue was not recognized on a pro rata basis for a given month. The appropriate recognition resulted in an increase in deferred revenue as at June 30, 2020, September 30, 2019, and October 1, 2018 by $2,229,000, $1,904,000, and $1,904,000, respectively.
Page | 25
PROTECH HOME MEDICAL CORP.
NOTES TO THE CONDENSED CONSOLIDATED
INTERIM FINANCIAL STATEMENTS
AMENDED AND RESTATED
(Tabular dollar amounts expressed in thousands of Canadian Dollars, except per share amounts)
Activity for deferred revenue for the nine months ended June 31, 2020 is as follows:
Balance, September 30, 2018 | $ | 1,904 | ||
Net change | - | |||
Balance, September 30, 2019 | 1,904 | |||
Increase due to acquisitions | 330 | |||
Decrease recorded through the amended and restated condensed consolidated interim statement of (loss) income | (5 | ) | ||
Balance, June 30, 2020 | $ | 2,229 |
b) | Classification of expenses |
The Company determined that expenses classified based on nature is more reliable and relevant. Accordingly, certain expenses were reclassified and the condensed consolidated interim statements of (loss) income and other comprehensive (loss) income for the three and nine months ended June 30, 2020 and 2019 have been restated to reflect such classification.
c) | Classification of leases |
Equipment obtained on loans were classified as finance leases instead of equipment loans. Accordingly, finance leases were reclassified as equipment loans, and the statements of financial position as at June 30, 2020 and September 30, 2019, and the condensed consolidated interim statements of income (loss) and comprehensive income (loss) for the three and nine months ended June 30, 2020 and 2019 have been restated to reflect such classification.
d) | Impairment of goodwill |
The impairment of goodwill of $531,000 recognized in the statement of (loss) comprehensive loss for the year ended September 30, 2019, has also been recognized in the condensed consolidated interim statements of (loss) income and other comprehensive (loss) income for the nine months ended ended June 30, 2019.
e) | Acquisition of businesses and purchase accounting |
In connection with the business acquisitions described in note 3, certain values of assets, liabilities and consideration were corrected from those previously reported in the previously issued condensed consolidated interim financial statements as at and for the period ended June 30, 2020.
f) | Changes in estimates |
During the year ended September 30, 2020, the Company revised its estimates related to reserves for expected credit losses, and for certain accruals related to litigation from discontinued operations, among others. The effects of these changes are reflected in the condensed consolidated interim financial statements as at and for the nine months ended June 30, 2020.
g) | Classification of government grants and derivative warrant liabilities |
The classification of government grants resulted in increase to other income of $644,000 with a corresponding decrease in revenues for the three and nine months ended June 30, 2020 as well as classification of government grants as current and long-term liabilities resulted in a decrease in current liabilities of $3,152,000 and an increase in long-term liabilities of $3,152,000 at June 30, 2020
Similarly, the classification of warrants as derivative liabilities resulted in an increase in current liabilities of $2,208,000 and a decrease in contributed surplus of $2,208,000 at June 30, 2020. Additionally, transaction costs of $284,000 allocated to the warrants were expensed during the three months ended June 30, 2020, and additional transaction costs of $743,000 were reduced from share capital.
Certain amounts on statement of cash flows for the nine months ended June 30, 2020 were re-classified to reflect various changes noted above.
Page | 26
PROTECH HOME MEDICAL CORP.
NOTES TO THE CONDENSED CONSOLIDATED
INTERIM FINANCIAL STATEMENTS
AMENDED AND RESTATED
(Tabular dollar amounts expressed in thousands of Canadian Dollars, except per share amounts)
The financial statement line items which have been restated are as follows:
Condensed consolidated interim statement of financial position as at June 30, 2020
Previously Reported | Adjustments | As Restated | ||||||||||
Accounts receivable, net | $ | 12,572 | $ | (973 | ) | $ | 11,599 | |||||
Inventory, net | 8,354 | (1,040 | ) | 7,314 | ||||||||
Total current assets | 66,867 | (2,013 | ) | 64,854 | ||||||||
Property and equipment and right of use assets, net | 22,272 | 2,144 | 24,416 | |||||||||
Goodwill | 5,505 | (2,383 | ) | 3,122 | ||||||||
Intangible assets, net | 2,417 | 1,303 | 3,720 | |||||||||
Total long-term assets | 30,303 | 1,064 | 31,367 | |||||||||
Total assets | 97,170 | (949 | ) | 96,221 | ||||||||
Accounts Payable | 8,710 | 82 | 8,792 | |||||||||
Current portion of loans | - | 7,248 | 7,248 | |||||||||
Current portion of leases | 9,883 | (7,295 | ) | 2,588 | ||||||||
Accrued and other current liabilities | 3,871 | 2,019 | 5,890 | |||||||||
Government grant | 7,596 | (3,152 | ) | 4,444 | ||||||||
Deferred Revenue | - | 2,229 | 2,229 | |||||||||
Warrant liability | - | 2,208 | 2,208 | |||||||||
Total current liabilities | 30,060 | 3,339 | 33,399 | |||||||||
Lease liabilities | 5,597 | (822 | ) | 4,775 | ||||||||
Equipment loans | - | 840 | 840 | |||||||||
Other long-term liabilities | 249 | 75 | 324 | |||||||||
Government Grant | - | 3,152 | 3,152 | |||||||||
Total long-term liabilities | 21,307 | 3,245 | 24,552 | |||||||||
Total liabilities | 51,367 | 6,584 | 57,951 | |||||||||
Share capital | 224,965 | (743 | ) | 224,222 | ||||||||
Contributed surplus | 24,393 | (2,508 | ) | 21,885 | ||||||||
Accumulated deficit | (217,288 | ) | (4,282 | ) | (221,570 | ) | ||||||
Total Shareholders’ Equity | 45,803 | (7,533 | ) | 38,270 | ||||||||
Total Liabilities and Shareholders’ Equity | 97,170 | (949 | ) | 96,221 |
Page | 27
PROTECH HOME MEDICAL CORP.
NOTES TO THE CONDENSED CONSOLIDATED
INTERIM FINANCIAL STATEMENTS
AMENDED AND RESTATED
(Tabular dollar amounts expressed in thousands of Canadian Dollars, except per share amounts)
Page | 28
PROTECH HOME MEDICAL CORP.
NOTES TO THE CONDENSED CONSOLIDATED
INTERIM FINANCIAL STATEMENTS
AMENDED AND RESTATED
(Tabular dollar amounts expressed in thousands of Canadian Dollars, except per share amounts)
Condensed consolidated interim statement of cash flows for the nine months ended June 30, 2020
Previously Reported | Adjustments | As Restated | ||||||||||
Net loss from continuing operations | $ | (3,432 | ) | $ | (1,636 | ) | $ | (5,068 | ) | |||
Net loss from discontinued operations | (416 | ) | (742 | ) | (1,158 | ) | ||||||
Depreciation and amortization | 14,640 | (321 | ) | 14,319 | ||||||||
Interest expense on leases and loans | - | 975 | 975 | |||||||||
Transaction Costs Bought Deal | - | 284 | 284 | |||||||||
Bad debt expense | 6,528 | 533 | 7,061 | |||||||||
Government grant | - | (643 | ) | (643 | ) | |||||||
Net increase (decrease) in accounts receivable, excluding bad debt expense | (5,630 | ) | 491 | (5,139 | ) | |||||||
Net increase (decrease) in inventory | (1,987 | ) | 572 | (1,415 | ) | |||||||
Net increase (decrease) in accounts payable, accrued liabilities, and deferred income | 8,191 | (5,729 | ) | 2,462 | ||||||||
Net cash flows provided by operating activities | 19,352 | (6,221 | ) | 13,131 | ||||||||
Repayments of long-term debt | (12,693 | ) | (1,169 | ) | (13,862 | ) | ||||||
Proceeds from government grant | - | 8,239 | 8,239 | |||||||||
Proceeds from issuance of warrants | - | 2,208 | 2,208 | |||||||||
Proceeds from issuance of common shares | 29,285 | (3,251 | ) | 26,034 | ||||||||
Net cash flow provided by (used in) financing activities | 16,872 | 6,027 | 22,899 | |||||||||
Net increase (decrease) in cash | 31,775 | 41 | 31,816 | |||||||||
Effect of exchange rate changes on cash held in foreign currencies | 48 | (41 | ) | 7 |
Condensed consolidated interim statement of loss for the three months ended June 30, 2019
Previously Reported | Adjustments | As Restated | ||||||||||
Cost of revenue | $ | 6,068 | $ | (6,068 | ) | - | ||||||
Inventory sold | - | 5,836 | 5,836 | |||||||||
Gross profit | 14,096 | (14,096 | ) | - | ||||||||
Selling general and administrative expenses | 10,372 | (10,372 | ) | - | ||||||||
Operating expenses | - | 10,604 | 10,604 | |||||||||
Interest expense | 171 | (171 | ) | - | ||||||||
Interest expense on equipment loans | - | 161 | 161 | |||||||||
Interest expense on lease liabilities | - | 10 | 10 |
Condensed consolidated interim statement of loss for the nine months ended June 30, 2019
Previously Reported | Adjustments | As Restated | ||||||||||
Cost of revenue | $ | 18,380 | $ | (18,380 | ) | - | ||||||
Inventory sold | - | 17,687 | 17,687 | |||||||||
Gross profit | 43,117 | (43,117 | ) | |||||||||
Selling general and administrative expenses | 31,695 | (31,695 | ) | - | ||||||||
Operating expenses | - | 32,388 | 32,388 | |||||||||
Impairment of goodwill | - | 531 | 531 | |||||||||
Operating income (loss) from continuing operations | (10,329 | ) | (531 | ) | (10,860 | ) | ||||||
Interest expense | 489 | (489 | ) | - | ||||||||
Interest expense on equipment loans | - | 416 | 416 | |||||||||
Interest expense on lease liabilities | - | 73 | 73 | |||||||||
Income (loss) before taxes from continuing operations | (13,408 | ) | (531 | ) | (13,939 | ) | ||||||
Net income (loss) from continuing operations | (13,542 | ) | (531 | ) | (14,073 | ) | ||||||
Net income (loss) | (12,935 | ) | (531 | ) | (13,466 | ) | ||||||
Comprehensive income (loss) | (12,682 | ) | (531 | ) | (13,213 | ) | ||||||
Net income (loss) per share Basic | (0.16 | ) | (0.00 | ) | (0.16 | ) | ||||||
Net income (loss per share Diluted | (0.16 | ) | (0.00 | ) | (0.16 | ) |
Page | 29
PROTECH HOME MEDICAL CORP.
NOTES TO THE CONDENSED CONSOLIDATED
INTERIM FINANCIAL STATEMENTS
AMENDED AND RESTATED
(Tabular dollar amounts expressed in thousands of Canadian Dollars, except per share amounts)
Condensed consolidated interim statement of cash flows for the nine months ended June 30, 2019
Previously Reported | Adjustments | As Restated | ||||||||||
Net loss from continuing operations | $ | (13,542 | ) | $ | (531 | ) | $ | (14,073 | ) | |||
Interest expense on leases and loans | - | 490 | 490 | |||||||||
Impairment of goodwill | - | 531 | 531 | |||||||||
Net cash flows provided by operating activities | (1,723 | ) | 490 | (1,233 | ) | |||||||
Purchases of property and equipment | (933 | ) | 775 | (158 | ) | |||||||
Net cash flow used in investing activities | (1,402 | ) | 775 | (627 | ) | |||||||
Repayments of long-term debt | (9,217 | ) | (490 | ) | (9,707 | ) | ||||||
Proceeds from issuance of common shares | 3,604 | 543 | 4,147 | |||||||||
Net cash flow provided by (used in) financing activities | 2,804 | 53 | 2,857 | |||||||||
Net increase (decrease) in cash | (321 | ) | 1,318 | 997 | ||||||||
Effect of exchange rate changes on cash held in foreign currencies | 174 | (1,318 | ) | (1,144 | ) |
Note 3 acquisition of businesses and purchase accounting
Line items adjusted on the net assets acquired of Cooley are as follows:
Previously Reported | Adjustments | As Restated | ||||||||||
Inventory | $ | 818 | $ | 200 | $ | 1,018 | ||||||
Property and equipment | 3,289 | (757 | ) | 2,532 | ||||||||
Right of use assets | - | 1,338 | 1,338 | |||||||||
Goodwill | 1,742 | (1,182 | ) | 560 | ||||||||
Intangible asset- Brand | - | 106 | 106 | |||||||||
Intangible asset- Non-compete | - | 26 | 26 | |||||||||
Intangible asset- Customer relationship | - | 437 | 437 | |||||||||
Accounts payable and accrued liabilities | (1,477 | ) | 398 | $ | (1,079 | ) | ||||||
Equipment loans | - | (674 | ) | (674 | ) | |||||||
Lease liabilities | (2,013 | ) | 675 | (1,338 | ) | |||||||
Deferred revenue | - | (271 | ) | (271 | ) | |||||||
Net assets acquired | 3,321 | 296 | 3,617 | |||||||||
Cash to be paid after closing, included in accrued liabilities | 232 | 296 | 528 | |||||||||
Consideration to be paid after closing | 3,321 | 296 | 3,617 |
Line items adjusted on the net assets acquired of Acadia are as follows:
Previously Reported | Adjustments | As Restated | ||||||||||
Accounts receivable, net | $ | 139 | $ | 51 | $ | 190 | ||||||
Inventory | 350 | (23 | ) | 327 | ||||||||
Property and equipment and right of use assets | 330 | 186 | 516 | |||||||||
Right of use assets | - | 321 | 321 | |||||||||
Goodwill | 1,699 | (1,201 | ) | 498 | ||||||||
Intangible asset- Brand | - | 173 | 173 | |||||||||
Intangible asset- Non-compete | - | 40 | 40 | |||||||||
Intangible asset- Customer relationship | - | 611 | 611 | |||||||||
Deferred revenue | - | (59 | ) | (59 | ) | |||||||
Equipment loans | - | (181 | ) | (181 | ) | |||||||
Lease liabilities | (378 | ) | 182 | (196 | ) | |||||||
Net assets acquired | 1,861 | 100 | 1,961 | |||||||||
Cash to be paid after closing, included in accrued liabilities | 527 | (527 | ) | - | ||||||||
Cash to be paid after closing, included in accrued liabilities | - | 303 | 303 | |||||||||
Cash to be paid after closing, included in other long-term liabilities | - | 324 | 324 | |||||||||
Consideration paid or payable | 1,861 | 100 | 1,961 |
Page | 30
PROTECH HOME MEDICAL CORP.
NOTES TO THE CONDENSED CONSOLIDATED
INTERIM FINANCIAL STATEMENTS
AMENDED AND RESTATED
(Tabular dollar amounts expressed in thousands of Canadian Dollars, except per share amounts)
Note 6 additions in property and equipment reclassified as transfers from inventory for the nine months ended June 30, 2020 |
||||||||||||
Previously Reported | Adjustments | As Restated | ||||||||||
Additions of monitoring equipment | $ | 7,231 | $ | (7,231 | ) | $ | - | |||||
Transfers from inventory | - | 7,876 | 7,876 |
Note 6 additions in property and equipment reclassified as transfers from inventory for the nine months ended June 30, 2019 |
||||||||||||
Previously Reported | Adjustments | As Restated | ||||||||||
Additions of monitoring equipment | $ | 6,387 | $ | (6,387 | ) | $ | - | |||||
Transfers from inventory | - | 6,387 | 6,387 |
Page | 31
Exhibit 99.111
Notice to Reader
As described in Note 16, the Company identified certain errors and adjustments as set out below.
1. | Recognition of deferred revenue relating to rental billings in the condensed consolidated interim financial statements as at March 31, 2020 and September 30, 2019, and for the three and six months ended March 31, 2020 and 2019. |
2. | Classification of expenses in the condensed consolidated interim statements of income (loss) and comprehensive income (loss) for the three and six months ended March 31, 2020 and 2019 . |
3. | Classification of leases and equipment loans in the condensed consolidated interim statements of financial position as at March 31, 2020 and September 30, 2019, and related interest expense in the condensed consolidated interim statements of income (loss) and comprehensive income (loss) for the three and six months ended March 31, 2020 and 2019 |
4. | Recognition of goodwill impairment in the condensed consolidated interim statements of income (loss) and comprehensive income (loss) and cash flows for the six months ended March 31, 2019 that had previously been recorded in the year ended September 30, 2019. |
5. | Recognition and measurement of assets, liabilities and consideration relating to the business acquisitions that were previously reported in the previously issued condensed consolidated interim financial statements as at and for the three and six months ended March 31, 2020. |
6. | During the year ended September 30, 2020, the Company revised its estimate related to reserve for expected credit losses, and presentation of certain operating expenses under discontinued operations. The effects of these changes are reflected in the condensed consolidated interim statements of financial position as at March 31, 2020, and the condensed consolidated interim statement of income (loss) and comprehensive income (loss) and cash flows for the period ended March 31, 2020 and 2019. |
7. | Certain accompanying notes to the condensed consolidated interim financial statements as at March 31, 2020 and September 30, 2019, and for the three and six months ended March 31, 2020 and 2019. |
Accordingly, the previously issued condensed consolidated interim financial statements as at and for the three and six months ended March 31, 2020 have been withdrawn and are refiled dated May 10, 2021.
Protech Home Medical Corp.
Amended and Restated
Condensed Consolidated Interim Financial Statements
2020 Second Quarter
For the Three and Six Months Ended
March 31, 2020 and 2019
(UNAUDITED)
(Expressed in Canadian dollars)
TABLE OF CONTENTS
Amended and Restated Condensed Consolidated Interim Statements of Financial Position | Page 3 | |
Amended and Restated Condensed Consolidated Interim Statements of Income (Loss) and Comprehensive Income (Loss) | Page 4 | |
Amended and Restated Condensed Consolidated Interim Statements of Changes in Shareholders’ Equity | Page 5 | |
Amended and Restated Condensed Consolidated Interim Statements of Cash Flows | Page 6 | |
Notes to the Amended and Restated Condensed Consolidated Interim Financial Statements | Pages 7-29 |
PROTECH HOME MEDICAL CORP.
AMEDNDED AND RESTATED CONDENSED CONSOLIDATED INTERIM
STATEMENT OF FINANCIAL POSITION AS AT MARCH 31, 2020
(UNAUDITED)
(Expressed in thousands of Canadian Dollars, except per share amounts)
As at | As at | |||||||||||
Notes | March 31, 2020 | September 30, 2019 | ||||||||||
ASSETS | ||||||||||||
Current Assets | ||||||||||||
Cash | $ | 6,210 | $ | 12,855 | ||||||||
Accounts receivable, net | 4 | 13,150 | 12,390 | |||||||||
Inventory, net | 5 | 7,769 | 4,738 | |||||||||
Prepaid expenses and other current assets | 1,089 | 800 | ||||||||||
Total current assets | 28,218 | 30,783 | ||||||||||
Long-term assets | ||||||||||||
Property and equipment and right of use assets, net | 6 | 27,546 | 19,496 | |||||||||
Goodwill | 7 | 3,314 | 1,881 | |||||||||
Intangible assets, net | 7 | 4,024 | 2,911 | |||||||||
Deposits | 104 | 94 | ||||||||||
Total long-term assets | 34,988 | 24,382 | ||||||||||
TOTAL ASSETS | $ | 63,206 | $ | 55,165 | ||||||||
LIABILITIES | ||||||||||||
Current Liabilities | ||||||||||||
Trade payables | $ | 10,919 | $ | 8,122 | ||||||||
Accrued liabilities | 3,890 | 2,319 | ||||||||||
Deferred revenue | 16 | 2,005 | 1,904 | |||||||||
Current portion of loans | 8 | 8,219 | 8,179 | |||||||||
Current portion of lease liabilities | 8 | 2,767 | 557 | |||||||||
Total current liabilities | 27,800 | 21,081 | ||||||||||
Long-Term Liabilities | ||||||||||||
Debentures | 8 | 12,147 | 13,966 | |||||||||
Equipment Loans | 8 | 1,018 | 1,496 | |||||||||
Lease liabilities | 8 | 5,325 | 1,377 | |||||||||
Other long-term liabilities | 3 | 324 | - | |||||||||
Total long-term liabilities | 18,814 | 16,839 | ||||||||||
TOTAL LIABILITIES | 46,614 | 37,920 | ||||||||||
SHAREHOLDERS’ EQUITY | ||||||||||||
Share capital | 198,259 | 198,196 | ||||||||||
Contributed surplus | 21,488 | 21,390 | ||||||||||
Accumulated deficit | (218,189 | ) | (215,344 | ) | ||||||||
Accumulated other comprehensive income | 15,034 | 13,003 | ||||||||||
TOTAL SHAREHOLDERS’ EQUITY | 16,592 | 17,245 | ||||||||||
TOTAL LIABILITIES AND SHAREHOLDERS’ EQUITY | $ | 63,206 | $ | 55,165 |
APPROVED ON BEHALF OF THE BOARD:
signed “Donald Ewing” | signed “Mark Greenberg” |
The accompanying notes are an integral part of these condensed consolidated interim financial statements.
Page | 3
PROTECH HOME MEDICAL CORP.
AMENDED AND RESTATED CONDENSED CONSOLIDATED INTERIM
STATEMENTS OF INCOME (LOSS) AND COMPREHENSIVE INCOME (LOSS) FOR THE THREE AND SIX MONTHS ENDED MARCH 31, 2020 AND 2019
(UNAUDITED)
(Expressed in thousands of Canadian Dollars, except per share amounts)
Notes |
Three months
ended March 31, 2020 |
Three Months
ended March 31, 2019 |
Six Months ended
March 31, 2020 |
Six Months ended
March 31, 2019 |
||||||||||||||||
Revenue | ||||||||||||||||||||
Sales of medical equipment and supplies | $ | 10,079 | $ | 9,380 | $ | 19,445 | $ | 18,694 | ||||||||||||
Rentals of medical equipment | 13,949 | 11,444 | 26,429 | 22,639 | ||||||||||||||||
Total revenue | 24,028 | 20,824 | 45,874 | $ | 41,333 | |||||||||||||||
Inventory Sold | 6,408 | 5,839 | 12,480 | 11,851 | ||||||||||||||||
Operating Expenses | 11 | 12,106 | 11,023 | 26,523 | 21,784 | |||||||||||||||
Depreciation | 6 | 4,350 | 2,853 | 8,801 | 6,020 | |||||||||||||||
Amortization of intangible assets | 7 | 203 | 151 | 460 | 302 | |||||||||||||||
Stock-based compensation | 9 | 92 | 361 | 134 | 891 | |||||||||||||||
Impairment of goodwill | 7 | - | - | - | 531 | |||||||||||||||
Gain on sale of property and equipment | (11 | ) | - | (91 | ) | (2 | ) | |||||||||||||
Other expense (income) | (55 | ) | 165 | (195 | ) | 171 | ||||||||||||||
Operating Income from continuing operations | 935 | 432 | (2,238 | ) | (215 | ) | ||||||||||||||
Financing expenses | ||||||||||||||||||||
Interest expense on debentures | 300 | 162 | 600 | 323 | ||||||||||||||||
Interest expense on lease liabilities | 141 | 50 | 299 | 63 | ||||||||||||||||
Interest expense on equipment loans | 179 | 132 | 325 | 255 | ||||||||||||||||
Accretion expense | - | 420 | - | 520 | ||||||||||||||||
Change in fair value of debentures and derivative | 8 | (2,549 | ) | 96 | (1,819 | ) | 28 | |||||||||||||
Income (loss) before taxes from continuing operations | 2,864 | (428 | ) | (1,643 | ) | (1,404 | ) | |||||||||||||
Provision for income taxes | 44 | 163 | 44 | 105 | ||||||||||||||||
Net income (loss) from continuing operations | 2,820 | (591 | ) | (1,687 | ) | (1,509 | ) | |||||||||||||
Discontinued operations: | ||||||||||||||||||||
Net income (loss) from discontinued operations | 14 | - | 61 | (1,158 | ) | 582 | ||||||||||||||
Net income (loss) | $ | 2,820 | $ | (530 | ) | $ | (2,845 | ) | $ | (927 | ) | |||||||||
Other comprehensive income (loss) | ||||||||||||||||||||
Cumulative translation adjustment | 2,567 | (493 | ) | 2,031 | 962 | |||||||||||||||
Comprehensive income (loss) | $ | 5,387 | $ | (1,023 | ) | $ | (814 | ) | $ | 35 | ||||||||||
Net income (loss) per share | ||||||||||||||||||||
Basic | 12 | $ | 0.03 | $ | (0.01 | ) | $ | (0.03 | ) | $ | (0.01 | ) | ||||||||
Diluted | 12 | $ | 0.03 | $ | (0.01 | ) | $ | (0.03 | ) | $ | (0.01 | ) | ||||||||
Weighted average number of common shares outstanding: | ||||||||||||||||||||
Basic | 83,657 | 83,530 | 83,623 | 82,176 | ||||||||||||||||
Diluted | 88,496 | 83,550 | 83,623 | 82,176 |
The accompanying notes are an integral part of these condensed consolidated interim financial statements.
Page | 4
PROTECH HOME MEDICAL CORP.
AMEDNDED AND RESTATED CONDENSED CONSOLIDATED INTERIM
STATEMENTS OF CHANGES IN SHAREHOLDERS’ EQUITY FOR THE SIX MONTHS ENDED MARCH 31,2020 AND 2019
(UNAUDITED)
(Expressed in thousands of Canadian Dollars)
Number
of Shares (000’s) |
Capital
stock |
Contributed
surplus |
Accumulated
Deficit |
Accumulated
other comprehensive income |
||||||||||||||||||||
Balance September 30, 2018 | 75,819 | $ | 193,951 | $ | 19,041 | $ | (206,055 | ) | $ | 12,332 | $ | 19,269 | ||||||||||||
Correction for deferred revenue (Note 15) | - | - | - | (1,904 | ) | - | (1,904 | ) | ||||||||||||||||
75,819 | 193,951 | 19,041 | (207,959 | ) | 12,332 | 17,365 | ||||||||||||||||||
Net income (loss) | - | - | - | (927 | ) | - | (927 | ) | ||||||||||||||||
Other comprehensive income | - | - | - | - | 962 | 962 | ||||||||||||||||||
Stock-based compensation (Note 9) | - | - | 891 | - | - | 891 | ||||||||||||||||||
Stock issued with acquisition | 227 | 164 | - | - | - | 164 | ||||||||||||||||||
Proceeds from issuance of shares (Note 9) | 7,483 | 3,604 | - | - | - | 3,604 | ||||||||||||||||||
Underwriter options issued (Note 9) | - | (135 | ) | 135 | - | - | - | |||||||||||||||||
Balance March 31, 2019 | 83,529 | $ | 197,584 | $ | 20,067 | $ | (208,886 | ) | $ | 13,294 | $ | 22,059 | ||||||||||||
Balance September 30, 2019 | 83,589 | $ | 198,196 | $ | 21,390 | $ | (213,440 | ) | $ | 13,003 | $ | 19,149 | ||||||||||||
Correction for deferred revenue (Note 15) | - | - | - | (1,904 | ) | - | (1,904 | ) | ||||||||||||||||
83,589 | 198,196 | 21,390 | (215,344 | ) | 13,003 | 17,245 | ||||||||||||||||||
Net loss | - | - | - | (2,845 | ) | - | (2,845 | ) | ||||||||||||||||
Exercise of stock options (Note 9) | 96 | 63 | (36 | ) | - | - | 27 | |||||||||||||||||
Other comprehensive income | - | - | - | - | 2,031 | 2,031 | ||||||||||||||||||
Stock-based compensation (Note 9) | - | - | 134 | - | - | 134 | ||||||||||||||||||
Balance March 31, 2020 | 83,685 | $ | 198,259 | $ | 21,488 | $ | (218,189 | ) | $ | 15,034 | $ | 16,592 |
The accompanying notes are an integral part of these condensed consolidated interim financial statements.
Page | 5
PROTECH HOME MEDICAL CORP.
AMENDED AND RESTATED CONDENSED CONSOLIDATED INTERIM
STATEMENTS OF CASH FLOWS FOR THE SIX MONTHS ENDED MARCH 31, 2020 AND 2019
(UNAUDITED)
(Expressed in thousands of Canadian Dollars)
Six months ended | Six months ended | |||||||||||
Notes | March 31, 2020 | March 31, 2019 | ||||||||||
Operating activities | ||||||||||||
Net income from continuing operations | $ | (1,687 | ) | $ | (1,509 | ) | ||||||
Net income from discontinued operations | (1,158 | ) | 582 | |||||||||
Adjustments to reconcile net income to net cash provided by operating activities: | ||||||||||||
Depreciation and amortization | 9,261 | 6,322 | ||||||||||
Depreciation and amortization – discontinued operations | - | 232 | ||||||||||
Interest expense on leases and loans | 624 | 318 | ||||||||||
Accretion expense | - | 520 | ||||||||||
Impairment of goodwill | - | 531 | ||||||||||
Change in fair value of debentures and derivative | 8 | (1,819 | ) | 28 | ||||||||
Gain on disposal of property and equipment | (91 | ) | (2 | ) | ||||||||
Stock-based compensation | 9 | 134 | 891 | |||||||||
Bad debt expense | 11 | 4,837 | 2,860 | |||||||||
Bad debt expense – discontinued operations | - | 32 | ||||||||||
Change in Working Capital: | ||||||||||||
Net increase in accounts receivable | (3,665 | ) | (6,752 | ) | ||||||||
Net increase in inventory | (1,016 | ) | (1,553 | ) | ||||||||
Net increase in prepaid expenses and other current assets | (163 | ) | (219 | ) | ||||||||
Net increase in trade payables and accrued liabilities | 1,352 | 2,145 | ||||||||||
Net cash flows provided by operating activities | 6,609 | 4,426 | ||||||||||
Investing activities | ||||||||||||
Purchases of property and equipment | (47 | ) | (73 | ) | ||||||||
Proceeds from sales of property and equipment | 169 | 15 | ||||||||||
Cash paid for acquisitions | 3 | (4,423 | ) | (526 | ) | |||||||
Net cash flow used in investing activities | (4,301 | ) | (584 | ) | ||||||||
Financing activities | ||||||||||||
Repayments of long-term debt | (9,708 | ) | (6,700 | ) | ||||||||
Proceeds from issuance of debenture | - | 13,959 | ||||||||||
Proceeds from the exercise of options | 27 | - | ||||||||||
Proceeds from issuance of common shares | - | 3,604 | ||||||||||
Net cash flow provided by (used in) financing activities | (9,681 | ) | 10,863 | |||||||||
Net increase (decrease) in cash | (7,373 | ) | 14,705 | |||||||||
Effect of exchange rate changes on cash held in foreign currencies | 728 | 93 | ||||||||||
Cash, beginning of period | 12,855 | 4,331 | ||||||||||
Cash, end of period | $ | 6,210 | $ | 19,129 |
The accompanying notes are an integral part of these condensed consolidated interim financial statements.
Page | 6
PROTECH HOME MEDICAL CORP.
NOTES TO THE AMENDED AND RESTATED CONDENSED CONSOLIDATED
INTERIM FINANCIAL STATEMENTS
(UNAUDITED)
(Tabular dollar amounts expressed in thousands of Canadian Dollars, except per share amounts)
1. | Nature of operations |
Reporting entity
Protech Home Medical Corp. (“Protech” or the “Company”) was incorporated under the Business Corporations Act (Alberta) on March 5, 1993. On December 30, 2013, the Company was continued into British Columbia, Canada. The address of the registered office is Suite 2800, 666 Burrard St., Vancouver, BC V6C 2Z7. The head office is located at 1019 Town Drive, Wilder, Kentucky, United States. The Company is a participating Medicare provider that provides i) nebulizers, oxygen concentrators, and CPAP and BiPAP units; ii) traditional and non-traditional durable medical respiratory equipment and services; and iii) non-invasive ventilation equipment, supplies and services. The Company has embarked on an acquisition strategy for additional revenue and profit growth. The Company’s shares are traded on the TSX Venture Exchange under the symbol PTQ. The stock is also traded over the counter in the United States under the symbol PHMZF.
On July 29, 2019, the Company sold all the assets of one of its subsidiaries, Patient Home Monitoring, Inc. The consolidated financial statements and the notes reflect the Patient Home Monitoring, Inc. as discontinued operations. Prior period amounts have been reclassified in order to be comparable to the current period presentation.
Share consolidation
Effective December 31, 2018, the Company consolidated its common shares on the basis of one (1) new post-consolidation common share for every five (5) pre-consolidation common shares. The consolidation will affect shareholders uniformly, including holders of outstanding incentive stock options, warrants and other securities convertible into exercisable for common shares on the effective date.
Basis of measurement
These consolidated financial statements have been prepared on a going concern basis. The application of the going concern basis of presentation assumes that the Company will continue its operations for the foreseeable future and be able to realize its assets and discharge its liabilities and commitments in the normal course of operation. If this assumption was not appropriate, adjustments to these condensed consolidated financial statements may be necessary.
COVID-19 Pandemic
On March 11, 2020, the World Health Organization declared the outbreak of a novel strain of coronavirus (“COVID-19”) a global pandemic. In response to the outbreak, governmental authorities in the United States and internationally have introduced various recommendations and measures to try to limit the pandemic, including travel restrictions, border closures, non-essential business closures, quarantines, self-isolations, shelters-in-place, and social distancing. The COVID-19 outbreak and the response of governmental authorities to try to limit it are having a significant impact on the private sector and individuals, including unprecedented business, employment, and economic disruptions.
Although the Company has taken steps to mitigate the impact of COVID-19, the continued presence and spread of COVID-19 nationally and globally could have a material adverse impact on the Company’s business, operations, and financial results and position, including through employee attrition, disruptions to the Company’s supply chains and sales channels, restrictions of operations at our retail stores, changes in the number of Americans with health insurance resulting in a change in demand for the Company’s products, as well as a deterioration of general economic conditions including a possible national or global recession. Due to the speed with which the COVID-19 situation is developing and the uncertainty of its magnitude, outcome, and duration, it is not possible to estimate its impact on the Company’s business, operations, financial results and position or prospects at this time.
The Company continues to monitor the situation and work with its stakeholders (including customers, employees, and suppliers) in order to assess further possible implications to its business, supply chain, and customers, and, where practicable, mitigate adverse consequences and responsibly address this global pandemic.
Page | 7
PROTECH HOME MEDICAL CORP.
NOTES TO THE AMENDED AND RESTATED CONDENSED CONSOLIDATED
INTERIM FINANCIAL STATEMENTS
(UNAUDITED)
(Tabular dollar amounts expressed in thousands of Canadian Dollars, except per share amounts)
The actual and threatened spread of COVID-19 globally could adversely affect global economies and financial markets, resulting in a prolonged economic downturn. The extent to which COVID-19 (or any other disease, epidemic, or pandemic) impacts business activity or financial results, and the duration of any such negative impact, will depend on future developments, which are highly uncertain and cannot be predicted, including new information which may emerge concerning COVID-19 and the actions required to contain or treat its impact, among others.
2. | Summary of significant accounting policies |
Unreserved statement of compliance
These unaudited condensed consolidated interim financial statements have been prepared in accordance with International Accounting Standard (IAS) 34, Interim Financial Reporting using accounting policies consistent with International Financial Reporting Standards (IFRS) as issued by the International Accounting Standards Board. These condensed consolidated interim financial statements do not include all the disclosures required in annual consolidated financial statements and should be read in conjunction with the Company’s audited consolidated financial statements for the years ended September 30, 2019 and 2018.
Except as noted below, the Company has followed the same basis of presentation, accounting policies and method of computation for these condensed consolidated interim financial statements as disclosed in the annual audited consolidated financial statements for the years ended September 30, 2019 and 2018.
The unaudited condensed consolidated interim financial statements were approved and authorized for issuance by the Board of Directors on May 7, 2021.
These unaudited condensed consolidated interim financial statements, which are presented in Canadian dollars, have been prepared under the historical cost convention, as modified by the measurement at fair values of certain financial assets and financial liabilities.
Critical accounting estimates
The following are the key estimate and assumption uncertainties that have a significant risk of resulting in a material adjustment within the next financial year:
The preparation of financial statements in conformity with IFRS requires management to make certain estimates, judgments, and assumptions concerning the future. The Company’s management reviews these estimates, judgments, and assumptions on an ongoing basis, based on experience and other factors, including expectations of future events that are believed to be reasonable under the circumstances. Revisions to estimates are adjusted prospectively in the period in which the estimates are revised.
Estimates where management has made subjective judgments and where there is significant risk of material adjustments to assets and liabilities in future accounting periods include fair value measurements for financial instruments and share-based transactions, useful lives and impairment of non-financial assets (property and equipment and intangible assets), provision for expected credit losses, fair value measurements for assets and liabilities acquired in business acquisition, and calculation of deferred taxes
Revenue recognition
Revenues are billed to and collections are received from both third-party insurers and patients. Because of continuing changes in the health care industry and third-party reimbursement, the consideration receivable from these insurance companies is variable as these billings can be challenged by the payer. Therefore, the amount billed by the Company is reduced by an estimate of the amount that the Company believes is an allowable charge to be ultimately allowed by the insurance contract. The above estimate involves significant judgment including an analysis of past collections and historical modification rates. Management regularly reviews the actual claims approved by the insurance companies, making adjustments as required.
Page | 8
PROTECH HOME MEDICAL CORP.
NOTES TO THE AMENDED AND RESTATED CONDENSED CONSOLIDATED
INTERIM FINANCIAL STATEMENTS
(UNAUDITED)
(Tabular dollar amounts expressed in thousands of Canadian Dollars, except per share amounts)
Sales of medical equipment and supplies
The Company sells equipment, replacement parts, and supplies to customers and recognizes revenue based on contractual payment rates as determined by the payors at the point in time where control of the good or service is transferred through delivery to the customer. The payors are generally charged at the time that the product is sold.
The transaction price on equipment sales is the amount that the Company expects to receive in exchange for the goods and services provided. Due to the nature of the industry, gross charges are retail charges and generally do not reflect what the Company is ultimately paid. As such, the transaction price is constrained for the difference between the gross charge and what is estimated to be collected from payors and from patients. The transaction price therefore is predominantly based on contractual payment rates as determined by the payors. The Company does not generally contract with uninsured customers but does offer point-of-sale payments at retail outlets. The payment terms and conditions of customer contracts vary by customer type and the products and services offered.
The Company determines its estimates of contractual allowances and discounts based upon contractual agreements and historical experience. While the rates are fixed for the product or service with the customer and the payors, such amounts typically include co-payments, co-insurance and deductibles, which vary in amounts, and are due from secondary insurance and/or the patient. The Company includes in the transaction price only the amount that the Company expects to be entitled, which is substantially all of the payor billings at contractual rates.
Due to the nature of the industry and the reimbursement environment in which the Company operates, certain estimates are required to record net revenue and accounts receivable at their net realizable values. Inherent in these estimates is the risk that they will have to be revised or updated as additional information becomes available. Specifically, the complexity of many third-party billing arrangements and the uncertainty of reimbursement amounts for certain services from certain payors may result in adjustments to amounts originally recorded. Such adjustments are typically identified and recorded at the point of claim approval or denial.
Returns and refunds are not accepted on equipment sales. The Company does not offer warranties to customers in excess of the manufacturer’s warranty. Any taxes due upon sale of the products or services are not recognized as revenue. The Company does not have any partially or unfilled performance obligations related to contracts with customers and as such, the Company has no contract liabilities as of March 31, 2020.
Rental of medical equipment
The Company rents medical equipment to customers for a fixed monthly amount on a month-to-month basis. The customer generally has the right to cancel the lease at any time during the rental period. The Company considers these rentals to be operating leases. Under IFRS 16, “Leases”, the Company recognizes rental revenue on operating leases on a straight-line basis over the contractual lease term, resulting in deferred revenue for the portion of the monthly rent that is after the consolidated statement of financial position date. The term begins on the date products are delivered to patients, and revenues are recorded at amounts estimated to be received under reimbursement arrangements with third-party payors, including Medicare, private commercial payors, and Medicaid. Certain customer co-payments are included in revenue when considered probable of payment.
Due to the nature of the industry and the reimbursement environment in which the Company operates, certain estimates are required to record net revenue and accounts receivable at their net realizable values. Inherent in these estimates is the risk that they will have to be revised or updated as additional information becomes available. Specifically, the complexity of many third-party billing arrangements and the uncertainty of reimbursement amounts for certain services from certain payors may result in adjustments to amounts originally recorded. Such adjustments are typically identified and recorded at the point of cash application or claim denial.
Valuation of accounts receivable
The measurement of expected credit losses considers information about past events and current conditions. Forward looking macro-economic factors are incorporated into the risk parameters, such as unemployment rates, inflation, and interest rates. Significant judgments are made in order to incorporate forward-looking information into the estimation of allowances and may result in changes to the provision from period to period which may significantly affect our results of operations.
The Company estimates that a certain portion of receivables from customers may not be collected and maintains an allowance for doubtful accounts. The Company evaluates the net realizable value of accounts receivable as of the date of the consolidated balance sheets. Specifically, the Company considers historical realization data, including current and historical cash collections, accounts receivable aging trends, other operating trends, and relevant business conditions. Because of continuing changes in the health care industry and third-party reimbursement, it is possible that the estimates could change, which could have a material impact on the operations and cash flows. If circumstances related to certain customers change or actual results differ from expectations, our estimate of the recoverability of receivables could fluctuate from that provided for in our consolidated financial statements. A change in estimate could impact bad debt expense and accounts receivable.
Page | 9
PROTECH HOME MEDICAL CORP.
NOTES TO THE AMENDED AND RESTATED CONDENSED CONSOLIDATED
INTERIM FINANCIAL STATEMENTS
(UNAUDITED)
(Tabular dollar amounts expressed in thousands of Canadian Dollars, except per share amounts)
Valuation of inventories
Inventory is recorded at the lower of cost or market. Inventory is expensed through cost of inventory sold when shipped to customers or transferred to property and equipment when rented to customers. The Company estimates that a certain portion of inventory purchased may be excess, obsolete, or non-saleable. The Company maintains a provision for obsolescence for these items. Valuation of the inventory was assessed at year-end, and all inventory items which more than two years are old and not supported by recent sales were provided for 50% in accordance with Company’s policy.
Convertible debentures
In accordance with the substance of the contractual arrangement, convertible debentures are compound financial instruments that are accounted for separately by their components: a financial liability and an equity instrument. The identification of convertible debenture components is based on interpretations of the substance of the contractual arrangement and therefore requires judgment from management. The separation of the components affects the initial recognition of the convertible debenture at issuance and the subsequent recognition of interest on the liability component. The determination of the fair value of the liability is also based on a number of assumptions, including contractual future cash flows, discount factors, and the presence of any derivative financial instruments.
Impairment of property and equipment and intangibles
Property plant and equipment and intangibles are reviewed for impairment whenever events or changes in circumstances indicate that their carrying amounts exceed their recoverable amounts. The assessment of the recoverable amount requires estimates and assumptions such as discount rates, exchange rates, future capital requirements and future operating performance.
Share based payments and warrants
The amounts used to estimate fair values of stock options and warrants issued are based on estimates of future volatility of the Company’s share price, expected lives of the options and warrants, expected dividends to be paid by the Company and other relevant assumptions. By their nature, these estimates are subject to measurement uncertainty and the effect of changes in such estimates on the consolidated financial statements of future periods could be significant.
Income taxes
Significant judgment is required in determining the provision for future income taxes. There are many transactions and calculations undertaken during the ordinary course of business for which the ultimate tax determination is uncertain. The Company recognizes liabilities and contingencies for anticipated tax audit issues based on the Company’s current understanding of the tax law. For matters where it is probable that an adjustment will be made, the Company records its best estimate of the tax liability including the related interest and penalties in the current tax provision. Management believes they have adequately provided for the probable outcome of these matters; however, the final outcome may result in a materially different outcome than the amount included in the tax liabilities.
In addition, the Company recognizes deferred tax assets relating to tax losses carried forward to the extent there are sufficient taxable temporary differences (deferred tax liabilities) relating to the same taxation authority and the same taxable entity against which the unused tax losses can be utilized. Utilization of the tax losses depends on the ability of the taxable entity to satisfy certain tests at the time the losses are recouped.
Useful lives of property and equipment
The Company reviews the estimates for useful lives on an annual basis, or more frequently if events during the year indicate that a change may be required, with consideration given to technological obsolescence and other relevant business factors. A change in management’s estimate could impact depreciation/amortization expense and carrying value of property and equipment and intangible assets.
Page | 10
PROTECH HOME MEDICAL CORP.
NOTES TO THE AMENDED AND RESTATED CONDENSED CONSOLIDATED
INTERIM FINANCIAL STATEMENTS
(UNAUDITED)
(Tabular dollar amounts expressed in thousands of Canadian Dollars, except per share amounts)
Lease liabilities
Estimate of lease term
When the Company recognizes a lease, it assesses the lease term based on the conditions of the lease and determines whether it will extend the lease at the end of the lease contract or exercise an early termination option. As it is not reasonably certain that the extension or early termination options will be exercised, the Company determined that the term of its leases are the lesser of original lease term or the life of the leased asset. This significant estimate could affect future results if the Company extends the lease or exercises an early termination option.
Incremental borrowing rate
When the Company recognizes a lease, the future lease payments are discounted using the Company’s incremental borrowing rate. This significant estimate impacts the carrying amount of the lease liabilities and the interest expense recorded on the consolidated statement of loss and comprehensive loss.
Property and equipment
Property and equipment is stated at cost less accumulated depreciation. Major renewals and improvements are charged to the property accounts, while maintenance, and repairs which do not extend the useful life of the respective assets, are expensed as incurred. Depreciation is computed using the straight-line method over the estimated useful lives of the respective assets.
The estimated useful lives of the assets are as follows:
Description | Estimated Useful Life | |
Rental equipment | 1-5 years | |
Computer equipment | 3-5 years | |
Office furniture and fixtures | 5-10 years | |
Leasehold improvements | Life of lease (1-7 years) | |
Right-of-use vehicles | 5 years | |
Right of use real estate leases | Life of lease (1-6 years) |
Depreciation of rental equipment commences once it has been deployed to a patient’s address and put in use. Property and equipment and other non-current assets with definite useful lives are tested for impairment whenever events or changes in circumstances indicate that their carrying amount may not be recoverable.
Intangible assets
The Company has recorded various intangible assets consisting primarily of non-compete agreements, trademarks, customer contracts and customer relationships. Non-compete agreements are the value associated with the non-compete agreements entered by the sellers of purchased companies. Trademarks are the purchase price allocation for the value associated with the trade name of the acquired company. Customer contracts are comprised of the purchase price allocation of the present value of expected future customer billings based on the statistical life of a customer. Customer relationships are the value given in the purchase price allocation to the long-term associations with referral sources such as doctors, medical centers, etc. Finite life intangible assets are amortized on a straight-line basis over the estimated useful lives of the related assets as follows:
Description | Estimated Useful Life | |
Non-compete agreements | 5 Years | |
Trademarks | 10 Years | |
Customer contracts | 2 Years | |
Customer relationships | 10 Years |
Page | 11
PROTECH HOME MEDICAL CORP.
NOTES TO THE AMENDED AND RESTATED CONDENSED CONSOLIDATED
INTERIM FINANCIAL STATEMENTS
(UNAUDITED)
(Tabular dollar amounts expressed in thousands of Canadian Dollars, except per share amounts)
Gains or losses arising from de-recognition of an intangible asset are measured as the difference between the net disposal proceeds and the carrying amount of the asset and are recognized in the Statements of Net Loss and Comprehensive Loss when the asset is derecognized.
The Company reviews the estimates for useful lives on an annual basis, or more frequently if events during the year indicate that a change may be required, with consideration given to technological obsolescence and other relevant business factors. A change in management’s estimate could impact depreciation/amortization expense and the carrying value of property and equipment and intangible assets.
New standards and interpretations adopted
IFRS 16, Leases
Effective October 1, 2019, the Company adopted IFRS 16, Leases. IFRS 16 eliminates the distinction between operating and finance leases from the perspective of the lessee. All contracts that meet the definition of a lease will be recorded in the statement of financial position with a “right of use” asset and a corresponding liability at the present value of the future lease payments using the lessee’s incremental borrowing rate of 8%.
The Company elected to adopt IFRS 16 using the modified retrospective approach. Under this approach, the Company will not restate its comparative figures, but will recognize the cumulative effect of adopting IFRS 16 as an adjustment to opening statement of financial position, with the recognition of $3,456,000 of right of use assets and finance lease obligations on October 1, 2019. On the condensed consolidated statement of income, the impact of the adoption of IFRS 16 is to increase depreciation expense and interest expense and decrease operating expenses.
The Company elected to apply the practical expedient to exclude recognition of right of use assets and lease liabilities for real estate, computer equipment, and office furniture leases under 12 months in duration or for which the lease term ends within 12 months of initial application for leases, and for low-value assets. The Company also elected to apply IFRS 16 only to the contracts that were previously identified as leases. Contracts that were not identified as leases under IAS 17 Leases will not be reassessed for whether a lease exists. Lease expenses for short-term leases totaled $302,000 and $527,000 for the three and six months ended March 31, 2020.
As of October 1, 2019, approximately $1,934,000 of vehicles were already accounted for as lease liabilities.
Functional currency
The consolidated financial statements of the Company are presented in Canadian dollars, which is the parent Company’s presentation currency, but which differs from its functional currency, the US Dollar, which was determined using management’s judgment that the primary economic environment in which it will derive its revenue and expenses incurred to generate those revenues is the United States. Management has exercised judgment in selecting the functional currency of each of the entities that it consolidates based on the primary economic environment in which the entity operates and in reference to the various indicators including the currency that primarily influences or determines the selling prices of goods and services and the cost of production, including labor, material and other costs and the currency whose competitive forces and regulations mainly determine selling prices.
Business combinations
In accordance with IFRS 3 – Business Combination (“IFRS 3”), a transaction is recorded as a business combination if the significant assets, liabilities, or activities in addition to property and related mortgage debt assumed constitute a business. A business is defined as an integrated set of activities and assets, capable of being conducted and managed for the purpose of providing a return, lower costs, or other economic benefits. Where there are no such integrated activities, the transaction is treated as an asset acquisition. The estimation of the fair value of the assets and liabilities acquired in an acquisition is subject to judgement concerning estimating market values and predicting future events. These values are uncertain and can materially impact the carrying value of the acquired assets and the amount allocated to goodwill.
Page | 12
PROTECH HOME MEDICAL CORP.
NOTES TO THE AMENDED AND RESTATED CONDENSED CONSOLIDATED
INTERIM FINANCIAL STATEMENTS
(UNAUDITED)
(Tabular dollar amounts expressed in thousands of Canadian Dollars, except per share amounts)
Recognition and initial measurement
The Company recognizes financial assets when it becomes party to the contractual provisions of the instrument. Financial assets are measured initially at their fair value plus, in the case of financial assets not subsequently measured at fair value through profit or loss, transaction costs that are directly attributable to their acquisition. Transaction costs attributable to the acquisition of financial assets subsequently measured at fair value through profit or loss are expensed in the consolidated statement of income (loss) and comprehensive income (loss) when incurred.
3. | Acquisition of businesses and purchase accounting |
Acquisition of Cooley Medical Equipment, Inc. (Cooley)
Effective October 1, 2019, the Company, through PHM Logistics Corporation, entered into a purchase agreement to acquire the shares of Cooley Medical Equipment, Inc. (Cooley), a Kentucky company in the same industry as the Company. The purchase price was $3,617,000, of which $3,089,000 was paid in cash at closing ($2,408 of which was paid to US Department of Justice against settlement of a litigation pending against the Cooley as on the date of acquisition, on behalf of seller), and the balance of $528,000 to be paid on the 18-month anniversary of the acquisition discounted at 3.86%. Of the cash portion of the purchase price, $2,416,000 was paid to the US Department of Justice to pay off a settlement agreement into which Cooley had entered. The Company has determined that the transaction is an acquisition of a business under IFRS 3, and it has been accounted for by applying the acquisition method. The Company expensed $55,000 of legal expenses, included in acquisition-related costs) in conjunction with the acquisition.
The acquired business contributed revenue of approximately $4,100,000 and net income of $(100,000) from October 1, 2019 to March 31, 2020.
The fair value of the acquired assets is provisional pending final valuations of the assets and is as follows:
Cash | $ | 106 | ||
Accounts receivable | 801 | |||
Inventory | 1,018 | |||
Prepaid assets | 55 | |||
Property and equipment | 2,532 | |||
Right of use assets | 1,338 | |||
Goodwill | 560 | |||
Intangible asset- Brand | 106 | |||
Intangible asset- Non-compete | 26 | |||
Intangible asset- Customer relationships | 437 | |||
Accounts payable and accrued liabilities | (1,079 | ) | ||
Deferred revenue | (271 | ) | ||
Equipment loans | (674 | ) | ||
Lease liabilities | (1,338 | ) | ||
Net assets acquired | $ | 3,617 | ||
Cash paid at closing | $ | 3,089 | ||
Cash to be paid after closing, included in accrued liabilities | 528 | |||
Consideration paid or payable | $ | 3,617 |
Page | 13
PROTECH HOME MEDICAL CORP.
NOTES TO THE AMENDED AND RESTATED CONDENSED CONSOLIDATED
INTERIM FINANCIAL STATEMENTS
(UNAUDITED)
(Tabular dollar amounts expressed in thousands of Canadian Dollars, except per share amounts)
Acquisition of Acadia Medical Supply, Inc. (Acadia)
Effective December 1, 2019, the Company, through PHM Logistics Corporation, entered into a purchase agreement to acquire the shares of Acadia Medical Supply, Inc. (Acadia), a Maine company in the same industry as the Company. The purchase price was $1,961,000, of which $1,334,000 was paid in cash at closing, and the balance of $627,000 to be paid on the one- and two-year anniversaries of the acquisition discounted at 3.86%. The Company has determined that the transaction is an acquisition of a business under IFRS 3, and it has been accounted for by applying the acquisition method. The Company expensed $29,000 of legal expenses included in operating expenses in conjunction with the acquisition.
Pro forma six-month revenues and net income for Acadia for the period October 1, 2019 through March 31, 2020 $2,200,000 and $200,000, respectively.
The fair value of the acquired assets is provisional pending final valuations of the assets and is as follows:
Cash | $ | 79 | ||
Accounts receivable | 190 | |||
Inventory | 327 | |||
Property and equipment | 516 | |||
Right of use assets | 321 | |||
Other assets | 10 | |||
Goodwill | 498 | |||
Intangible asset- Brand | 173 | |||
Intangible asset- Non-compete | 40 | |||
Intangible asset- Customer relationship | 611 | |||
Accounts payable and accrued liabilities | (368 | ) | ||
Deferred revenue | (59 | ) | ||
Equipment loans | (181 | ) | ||
Lease liabilities | (196 | ) | ||
Net assets acquired | $ | 1,961 | ||
Cash paid at closing | $ | 1,334 | ||
Cash to be paid after closing, included in accrued liabilities | 303 | |||
Cash to be paid after closing, included in other long-term liabilities | 324 | |||
Consideration paid or payable | $ | 1,961 |
Prior Periods
During the six months ended March 31, 2019, the Company acquired two businesses. The details of these acquisitions were disclosed in Note 7 of the Company’s annual financial statements for the year ended September 30, 2019.
4. | Accounts receivable |
Accounts receivable represents amounts due from insurance companies and patients:
As at March 31, | As at September | |||||||
2020 | 30, 2019 | |||||||
Gross receivable | $ | 16,624 | $ | 15,463 | ||||
Reserve for expected credit losses | (3,474 | ) | (3,073 | ) | ||||
$ | 13,150 | $ | 12,390 |
Page | 14
PROTECH HOME MEDICAL CORP.
NOTES TO THE AMENDED AND RESTATED CONDENSED CONSOLIDATED
INTERIM FINANCIAL STATEMENTS
(UNAUDITED)
(Tabular dollar amounts expressed in thousands of Canadian Dollars, except per share amounts)
As at March 31, 2020 | Gross Receivables |
Allowance for
expected credit losses |
Net Receivables | |||||||||
0 – 90 days | $ | 13,653 | $ | (1,886 | ) | $ | 11,767 | |||||
91 – 180 days | 1,776 | (654 | ) | 1,122 | ||||||||
Over 180 days | 1,195 | (934 | ) | 261 | ||||||||
Total | $ | 16,624 | $ | (3,474 | ) | $ | 13,150 |
Below is the movement in the reserve for expected credit losses:
Six months ended | Year ended | |||||||
Reserve for expected credit losses | March 31, 2020 | September 30, 2019 | ||||||
Opening Balance | $ | 3,073 | $ | 2,501 | ||||
Bad debt expense | 4,837 | 2,860 | ||||||
Bad debt expense – discontinued operations | - | 32 | ||||||
Amounts written off | (4,436 | ) | (2,320 | ) | ||||
Ending Balance | $ | 3,474 | $ | 3,073 |
5. | Inventory |
As at March 31, | As at September 30, | |||||||
2020 | 2019 | |||||||
Serialized | $ | 2,600 | $ | 1,038 | ||||
Non-serialized | 5,253 | 3,770 | ||||||
Reserve for slow-moving | (84 | ) | (70 | ) | ||||
Total Inventory | $ | 7,769 | $ | 4,738 |
The reserve for slow-moving is included under cost of inventory sold in the condensed consolidated interim statement of (loss and comprehensive (loss) income.
Page | 15
PROTECH HOME MEDICAL CORP.
NOTES TO THE AMENDED AND RESTATED CONDENSED CONSOLIDATED
INTERIM FINANCIAL STATEMENTS
(UNAUDITED)
(Tabular dollar amounts expressed in thousands of Canadian Dollars, except per share amounts)
6. Property and equipment and right of use assets
Cost |
Rental equipment |
Computer equipment |
Office furniture and fixtures |
Leasehold
improvements |
Right of use assets - Vehicles |
Right of use assets –
Real
|
Total | |||||||||||||||||||||
Balance September 30, 2018 | $ | 37,201 | $ | 1,173 | $ | 635 | $ | 1,364 | $ | 2,875 | $ | - | $ | 43,248 | ||||||||||||||
Transfers from inventory | 3,651 | - | - | - | - | - | 3,651 | |||||||||||||||||||||
- | ||||||||||||||||||||||||||||
Additions | - | 9 | 2 | 62 | 357 | 430 | ||||||||||||||||||||||
- | ||||||||||||||||||||||||||||
Acquisitions | 81 | - | 4 | 49 | 37 | 171 | ||||||||||||||||||||||
- | ||||||||||||||||||||||||||||
Disposals | (7,096 | ) | (412 | ) | (30 | ) | (4 | ) | (354 | ) | (7,896 | ) | ||||||||||||||||
- | ||||||||||||||||||||||||||||
Foreign exchange | 1,154 | 36 | 21 | 45 | 93 | 1,349 | ||||||||||||||||||||||
Balance March 31, 2019 | $ | 34,991 | $ | 806 | $ | 632 | $ | 1,516 | $ | 3,008 | - | $ | 40,953 | |||||||||||||||
Balance September 30, 2019 | $ | 35,377 | $ | 668 | $ | 574 | $ | 1,548 | $ | 3,426 | $ | - | $ | 41,593 | ||||||||||||||
Additions – adoption of IFRS 16 | - | - | - | - | - | 3,456 | 3,456 | |||||||||||||||||||||
Transfers from Inventory | 5,749 | - | - | - | - | - | 5,749 | |||||||||||||||||||||
Additions | - | 4 | - | 43 | 681 | 897 | 1,625 | |||||||||||||||||||||
Acquisitions | 2,804 | - | - | 244 | 211 | 1,448 | 4,707 | |||||||||||||||||||||
Disposals | (10,409 | ) | (57 | ) | (92 | ) | (197 | ) | (624 | ) | - | (11,379 | ) | |||||||||||||||
Foreign exchange | 2,088 | 49 | 41 | 231 | 349 | 367 | 3,125 | |||||||||||||||||||||
Balance March 31, 2020 | $ | 35,609 | $ | 664 | $ | 523 | $ | 1,869 | $ | 4,043 | $ | 6,168 | $ | 48,876 |
Accumulated Depreciation |
Rental equipment |
Computer equipment |
Office furniture and fixtures |
Leasehold
improvements |
Right
assets - Vehicles |
Right
estate |
Total | |||||||||||||||||||||
Balance September 30, 2018 | $ | 19,676 | $ | 753 | $ | 303 | $ | 263 | $ | 1,365 | $ | - | $ | 22,360 | ||||||||||||||
Depreciation | 5,520 | 74 | 61 | 66 | 299 | - | 6,020 | |||||||||||||||||||||
Disposals | (7,091 | ) | (304 | ) | (30 | ) | (4 | ) | (347 | ) | - | (7,776 | ) | |||||||||||||||
Foreign exchange | 821 | 35 | 13 | 7 | 54 | - | 930 | |||||||||||||||||||||
Balance March 31, 2019 | $ | 18,926 | $ | 558 | $ | 347 | $ | 332 | $ | 1,371 | - | $ | 21,534 | |||||||||||||||
Balance September 30, 2019 | $ | 19,557 | $ | 491 | $ | 344 | $ | 340 | $ | 1,365 | $ | - | $ | 22,097 | ||||||||||||||
Depreciation | 7,219 | 67 | 52 | 100 | 416 | 947 | 8,801 | |||||||||||||||||||||
Disposals | (10,409 | ) | (57 | ) | (92 | ) | (197 | ) | (544 | ) | - | (11,299 | ) | |||||||||||||||
Foreign exchange | 1,288 | 38 | 27 | 126 | 193 | 58 | 1,730 | |||||||||||||||||||||
Balance March 31, 2020 | $ | 17,655 | $ | 539 | $ | 331 | $ | 369 | $ | 1,430 | $ | 1,005 | $ | 21,329 |
Page | 16
PROTECH HOME MEDICAL CORP.
NOTES TO THE AMENDED AND RESTATED CONDENSED CONSOLIDATED
INTERIM FINANCIAL STATEMENTS
(UNAUDITED)
(Tabular dollar amounts expressed in thousands of Canadian Dollars, except per share amounts)
Net Book Value |
Rental equipment |
Computer equipment |
Office furniture and fixtures |
Leasehold improvements |
Right
|
Right
Real
|
Total | ||||||||||||||||
Balance September 30, 2018 | $ | 17,525 | $ | 420 | $ | 332 | $ | 1,101 | $ | 1,510 | $ | - | $ | 20,888 | |||||||||
Balance March 31, 2019 | $ | 16,065 | $ | 248 | $ | 285 | $ | 1,184 | $ | 1,637 | $ | - | $ | 19,419 | |||||||||
Balance September 30, 2019 | $ | 15,820 | $ | 177 | $ | 230 | $ | 1,208 | $ | 2,061 | $ | - | $ | 19,496 | |||||||||
Balance March 31, 2020 | $ | 17,953 | $ | 125 | $ | 192 | $ | 1,500 | $ | 2,613 | $ | 5,163 | $ | 27,547 |
During the periods ended March 31, 2020 and September 30, 2019, the Company purchased rental equipment through the conversion of accounts payable to loans arranged by the vendor with a financing institution of $5,845,000 and $10,040,000, respectively (see note 8)
7. | Goodwill and intangible assets |
Cost | Goodwill |
Non- compete agreements |
Brand |
Customer contracts |
Customer relationships |
Sub-total intangibles with finite lives |
Total | |||||||||||||||||||||
Balance September 30, 2018 | $ | 1,839 | $ | 669 | $ | 1,736 | $ | 4,826 | $ | 10,994 | $ | 18,225 | $ | 20,064 | ||||||||||||||
Disposals | - | - | - | - | (30 | ) | (30 | ) | (30 | ) | ||||||||||||||||||
Acquisitions | 1,399 | - | - | - | - | - | 1,399 | |||||||||||||||||||||
Impairment of goodwill | (531 | ) | - | - | - | - | - | (531 | ) | |||||||||||||||||||
Effects of changes in exchange rates | 63 | 22 | 56 | 156 | 355 | 589 | 652 | |||||||||||||||||||||
Balance March 31, 2019 | $ | 2,770 | $ | 691 | $ | 1,792 | $ | 4,982 | $ | 11,319 | $ | 18,784 | $ | 21,554 |
Cost | Goodwill |
Non- compete agreements |
Brand |
Customer contracts |
Customer relationships |
Sub-total intangibles with finite lives |
Total | |||||||||||||||||||||
Balance September 30, 2019 | $ | 1,881 | $ | 684 | $ | 1,776 | $ | 5,099 | $ | 11,204 | $ | 18,763 | $ | 20,644 | ||||||||||||||
Acquisitions | 1,058 | 66 | 279 | - | 1,048 | 1,393 | 2,451 | |||||||||||||||||||||
Effects of changes in exchange rates | 375 | 49 | 127 | 363 | 799 | 1,338 | 1,713 | |||||||||||||||||||||
Balance March 31, 2020 | $ | 3,314 | $ | 799 | $ | 2,182 | $ | 5,462 | $ | 13,051 | $ | 21,494 | $ | 24,808 |
Accumulation amortization | Goodwill |
Non- compete agreements |
Brand |
Customer contracts |
Customer relationships |
Sub-total intangibles with finite lives |
Total | |||||||||||||||||||||
Balance September 30, 2018 | $ | - | $ | 575 | $ | 1,047 | $ | 4,826 | $ | 8,502 | $ | 14,950 | $ | 14,950 | ||||||||||||||
Amortization | - | 24 | 52 | - | 226 | 302 | 302 | |||||||||||||||||||||
Disposals | - | - | - | - | (30 | ) | (30 | ) | (30 | ) | ||||||||||||||||||
Effect of changes in exchange rates | - | 19 | 34 | 156 | 277 | 486 | 486 | |||||||||||||||||||||
Balance March 31, 2019 | $ | - | $ | 618 | $ | 1,133 | $ | 4,982 | $ | 8,975 | $ | 15,708 | $ | 15,708 |
Page | 17
PROTECH HOME MEDICAL CORP.
NOTES
TO THE AMENDED AND RESTATED CONDENSED CONSOLIDATED
INTERIM FINANCIAL STATEMENTS
(UNAUDITED)
(Tabular dollar amounts expressed in thousands of Canadian Dollars, except per share amounts)
Accumulation amortization | Goodwill |
Non- compete agreements |
Brand |
Customer contracts |
Customer relationships |
Sub-total
|
Total | |||||||||||||||||||||
Balance September 30, 2019 | $ | - | $ | 636 | $ | 1,176 | $ | 4,937 | $ | 9,103 | $ | 15,852 | $ | 15,852 | ||||||||||||||
Amortization | - | 29 | 65 | 114 | 252 | 460 | 460 | |||||||||||||||||||||
Effect of changes in exchange rates | - | 48 | 87 | 360 | 663 | 1,158 | 1,158 | |||||||||||||||||||||
Balance March 31, 2020 | $ | - | $ | 713 | $ | 1,328 | $ | 5,411 | $ | 10,018 | $ | 17,470 | $ | 17,470 |
Net carrying amount | Goodwill |
Non- compete agreements |
Brand |
Customer contracts |
Customer relationships |
Sub-total intangibles with finite lives |
Total | |||||||||||||||||||||
Balance September 30, 2018 | $ | 1,839 | $ | 94 | $ | 689 | $ | - | $ | 2,492 | $ | 3,275 | $ | 5,114 | ||||||||||||||
Balance March 31, 2019 | $ | 2,770 | $ | 73 | $ | 659 | $ | - | $ | 2,344 | $ | 3,076 | $ | 5,846 | ||||||||||||||
Balance September 30, 2019 | $ | 1,881 | $ | 48 | $ | 600 | $ | 162 | $ | 2,101 | $ | 2,911 | $ | 4,792 | ||||||||||||||
Balance March 31, 2020 | $ | 3,314 | $ | 86 | $ | 854 | $ | 51 | $ | 3,033 | $ | 4,024 | $ | 7,338 |
The Company’s goodwill impairment testing for the six months ended March 31, 2019 determined that the carrying value of Central Oxygen CGU exceeded their value in use, and as a result, the Company recorded a goodwill impairment charge of $531,000. The impairment resulted from a decline in the expected performances of these businesses relative to expectations at the time the acquisition was consummated.
The impairment was determined based on a value in use calculation which uses cash flow projections covering a five-year period and a discount rate of 17% per annum. The cash flows beyond the five-year period have been extrapolated using (terminal growth rates of 0% to 3%) per annum growth rate.
No impairment has been recognized in the three or six months ended March 31, 2020 as carrying value of the applicable CGUs was less than the value in use as of March 31, 2020.
8. | Long-term Debt |
Debentures
On March 7, 2019, the Company issued $15,000,000 in 8.0% Convertible Unsecured Debentures due March 7, 2024, with interest payable semi-annually on June 30th and December 30th of each year. Each $1,000 debenture is convertible at the option of the holder into approximately 769.23 common shares. After three years, the Company can force conversion of the outstanding principal at conversion price of $1.30, if the daily volume weighted average price of the common shares exceeds $1.62/share for twenty consecutive trading days. The debenture agreement also allows for payment of cash in lieu of common shares upon exercise of conversion right by the holder, equivalent of the market price on the conversion date.
The debentures contain multiple embedded derivatives including conversion right, forced conversion option and payment in lieu of common shares. Since the Company is unable to measure the fair value of embedded derivatives reliably, it has chosen to designate the convertible debentures in their entirety (including conversion right, forced conversion option and payment in lieu of common shares) to be subsequently measured at fair value through profit or loss (FVTPL).
The debentures are valued at fair value using the current trading price of $81 and $93 per unit as of March 31, 2020 and September 30, 2019, with the change in fair market value of $2,549,000 and $1,819,000 has been recorded in the statement of income (loss) and other comprehensive (loss) income for the three and six months ended March 31, 2020, respectively.
Six months ended March 31, 2020 |
Year ended September 30, 2019 |
|||||||
Beginning Balance | $ | 13,966 | $ | - | ||||
Issued | - | 15,000 | ||||||
Change in fair value | (1,819 | ) | (1,034 | ) | ||||
Ending Balance | $ | 12,147 | $ | 13,966 |
Page | 18
PROTECH HOME MEDICAL CORP.
NOTES TO THE AMENDED AND RESTATED CONDENSED CONSOLIDATED
INTERIM FINANCIAL STATEMENTS
(UNAUDITED)
(Tabular dollar amounts expressed in thousands of Canadian Dollars, except per share amounts)
During 2014, the Company issued $8,625,000 in unsecured subordinated debentures due December 31, 2019. The debentures were repaid in April 2019 for $8,970,000, including a prepayment premium.
Equipment Loans
The Company is offered financing arrangements from their suppliers and their designated financial institution, in which payments for certain invoices or products can be financed and paid over an extended period. The financial institution pays the supplier when the original invoice becomes due, and the Company pays the third-party financial institution over a period of time. In some cases, the supplier accepts a discounted amount from the financial institution and the Company repays the financial institution the face amount of the invoice with no stated interest, in twelve equal monthly installments. The Company uses a 6% incremental borrowing rate to impute interest on these arrangements. In other cases, the supplier receives the full invoice price and Company pays a stated interest rate to the financial institution, ranging from 5.6% to 8.0%, with the terms of the financing ranging from 12 to 48 months. There are no covenants with the loans and the carrying value of the equipment that is pledged as security against these loans is $9,950,000.
Below is the movement in equipment loans for the three months ended March 31, 2020:
Balance, September 30, 2018 | $ | 12,825 | ||
Additions | 10,040 | |||
Interest expense | 840 | |||
Repayments of principal and interest | (14,785 | ) | ||
Effect of changes in exchange rates | 755 | |||
Balance, September 30, 2019 | $ | 9,675 | ||
Additions: | ||||
Acquisitions | 856 | |||
Operations | 5,845 | |||
Interest expense | 325 | |||
Repayments of principal and interest | (8,092 | ) | ||
Effect of changes in exchange rates | 628 | |||
Balance, March 31, 2020 | $ | 9,237 | ||
Current portion | (8,219 | ) | ||
Long-term portion, due in 2021 | 1,018 |
Leases Liabilities
Vehicle leases are recorded at rates implicit in the lease based on the current and estimated residual value of the vehicle, equating to rates ranging from 1.7% to 10.4%, and real estate leases are recorded at the incremental borrowing rate of 8%.
Below is the movement in lease liabilities for the six months ended March 31, 2020:
Vehicles |
Right of
use
assets – real estate |
Total | ||||||||||
Balance, September 30, 2019 | $ | 1,934 | $ | - | $ | 1,934 | ||||||
Additions during the period: | ||||||||||||
Adoption of IFRS 16, Leases | - | 3,456 | 3,456 | |||||||||
Acquisitions | 87 | 1,447 | 1,534 | |||||||||
Operations | 675 | 898 | 1,573 | |||||||||
Interest expense | 99 | 200 | 299 | |||||||||
Repayments | (547 | ) | (1,069 | ) | (1,616 | ) | ||||||
Effect of changes in exchange rates | 159 | 753 | 912 | |||||||||
Balance, March 31, 2020 | $ | 2,407 | $ | 5,685 | $ | 8,092 |
Page | 19
PROTECH HOME MEDICAL CORP.
NOTES TO THE AMENDED AND RESTATED CONDENSED CONSOLIDATED
INTERIM FINANCIAL STATEMENTS
(UNAUDITED)
(Tabular dollar amounts expressed in thousands of Canadian Dollars, except per share amounts)
Additions during the period are comprised of vehicles at incremental borrowing rates between 6% and 7.5% with final maturities through 2024, and real estate at the incremental borrowing rate of 8% with final maturities through 2024.
Future payments pursuant to lease liabilities and equipment loans are as follows:
As at March 31, 2020 |
As at September 30, 2019 |
|||||||
Less than 1 year | $ | 3,095 | $ | 595 | ||||
Between 1 and 5 years | 5,625 | 1,685 | ||||||
More than five years | - | - | ||||||
Gross lease payments | $ | 8,720 | $ | 2,280 | ||||
Less: Finance charges | (628 | ) | (346 | ) | ||||
Net Lease liabilities | $ | 8,092 | $ | 1,934 |
9. | Share capital |
Bought deal and private placement
On November 2, 2018, the Company completed a bought deal offering of 5,649,600 common shares of the Company at a price of $0.60 per share for gross proceeds to the Company of $3,390,000. Along with this bought deal, the Company also completed a previously announced non-brokered private placement of 1,833,333 common shares to officers and directors at the $0.60 issue price for gross proceeds to the Company of $1,100,000. Issuance costs of $343,000 in cash were incurred. The Company also issued to the underwriter compensation options equal to 6.5% of the offered shares (367,224 options). Each compensation option is exercisable into one common share of the Company at the issue price for a period of 24 months from the closing of the offering. These shares are recorded as compensation options at $0.60 per share. The fair value of the options has been valued using the Black-Scholes option pricing model.
Options
The Company has a stock option plan, which it uses for grants to directors, officers, employees, and consultants. Options granted under the plan are non-assignable and may be granted for a term not exceeding ten years. Stock options generally vest either immediately or quarterly over a two-year period.
A summary of stock options is provided below:
Number of options
(000’s) |
Weighted
average exercise price |
|||||||
Balance September 30, 2019 | 11,392 | $ | 0.52 | |||||
Granted | 100 | 1.10 | ||||||
Exercised | (96 | ) | 0.28 | |||||
Forfeited | (22 | ) | 0.38 | |||||
Expired | (154 | ) | 0.98 | |||||
Balance March 31, 2020 | 11,220 | $ | 0.49 |
At March 31, 2020, the Company had 11,037,420 vested, exercisable stock options with a weighted average exercise price of $0.49.
Page | 20
PROTECH HOME MEDICAL CORP.
NOTES
TO THE AMENDED AND RESTATED CONDENSED CONSOLIDATED
INTERIM FINANCIAL STATEMENTS
(UNAUDITED)
(Tabular dollar amounts expressed in thousands of Canadian Dollars, except per share amounts)
Stock-based compensation
The Company accounts for stock-based compensation, including stock options, using the fair value method as prescribed by IFRS 2. Under this method, the fair value of stock options at the date of grant is expensed over the vesting period and the offsetting credit is recorded as an increase in contributed surplus.
For the three months ended March 31, 2020 and 2019, the Company recorded stock-based compensation expense of $92,000 and $361,000, respectively.
For the six months ended March 31, 2020 and 2019, the Company recorded stock-based compensation expense of $134,000 and $891,000, respectively.
The fair value of the stock options has been charged to the statement of loss and comprehensive loss and credited to contributed surplus over the proper vesting period, using the Black-Scholes option pricing model calculated using the following assumptions:
Six months ended
March 31, 2020 |
Six months ended
March 31, 2019 |
|||||||
Grant price per share | $ | 1.10 | $ | 0.63 | ||||
Risk-free interest rate | 1.64 | % | 2.24 | % | ||||
Expected volatility | 83.20 | % | 118.17 | % | ||||
Expected life of option | 4 years | 10 years | ||||||
Expected dividend yield | Nil | Nil |
10. | Commitments and Contingencies |
Commitments
The Company leases certain facilities with terms of less than a year that are classified as operating leases. Future payments pursuant to these leases are $155,000 as of September 30, 2020 and $36,000 as of March 31, 2020, which are all due in less than one year.
Contingencies
The Company has been in litigation with Lightwater Long Short Fund (“Lightwater”) for the year ended September 30, 2019 and six months ended March 31, 2020. The litigation is due to Lightwater claiming damages for matters related to subscription agreements in a prior private placement. Management and legal believe that this lawsuit is without merit and is unpredictable. It is uncertain currently to determine the outcome of this lawsuit or our potential liability, if any.
In March 2019, the Company experienced an unlawful and undiscovered intrusion into its email system, which resulted in fraudulent banking information being relayed regarding the transfer of funds on April 30, 2019 to satisfy the then outstanding debentures. The intruder was able to mislead certain parties with inaccurate requests and instructions and in doing so, caused the funds of $9,200,000 to be transferred into an account of a criminal third party outside North America. The fraud was uncovered on May 3, 2019, and the Company took immediate action to stop or undo the transfer and simultaneously started action to recover the amounts transferred. The Company has successfully retrieved $8,600,000 of the funds and is in process of enforcing a court order to have the rest of the $600,000 of funds returned.
From time to time, the Company is involved in various legal proceedings arising from the ordinary course of business, none of the matters in which the Company is currently involved, either individually, or in the aggregate, have a quantifiable exposure and are not expected to have a material adverse effect on the Company’s consolidated financial position, results of operations, or cash flows.
Page | 21
PROTECH HOME MEDICAL CORP.
NOTES TO THE AMENDED AND RESTATED CONDENSED CONSOLIDATED
INTERIM FINANCIAL STATEMENTS
(UNAUDITED)
(Tabular dollar amounts expressed in thousands of Canadian Dollars, except per share amounts)
11. | Operating Expenses |
Three
months
ended March 31, 2020 |
Three
months
ended March 31, 2019 |
Six
months
ended March 31, 2020 |
Six months
ended March 31, 2019 |
|||||||||||||
Employee salary and benefits | $ | 7,731 | $ | 6,452 | $ | 15,411 | $ | 12,893 | ||||||||
Bad debt expense (Note 4) | 978 | 1,549 | 4,837 | 2,892 | ||||||||||||
Facilities | 673 | 803 | 1,346 | 1,708 | ||||||||||||
Billing | 516 | 437 | 951 | 850 | ||||||||||||
Professional fees | 380 | 480 | 761 | 816 | ||||||||||||
Marketing Cost | 187 | 141 | 407 | 303 | ||||||||||||
All other | 1,641 | 1,161 | 2,810 | 2,322 | ||||||||||||
Total Operating Expenses | $ | 12,106 | $ | 11,023 | $ | 26,523 | $ | 21,784 |
12. | Income (Loss) per share |
The following reflects the earnings and share data used in the basic and diluted income (loss) per share computations:
Three months
ended March 31, 2020 |
Three months
ended March 31, 2019 |
Six months
ended March 31, 2020 |
Six months
ended March 31, 2019 |
|||||||||||||
Net income (loss) for continuing operations | $ | 2,820 | $ | (591 | ) | $ | (1,687 | ) | $ | (1,509 | ) | |||||
Net income (loss) for discontinued operations | - | 61 | (1,158 | ) | 582 | |||||||||||
Basic weighted average number of shares | 83,567 | 83,530 | 83,623 | 82,176 | ||||||||||||
Diluted weighted average number of shares | 88,496 | 83,530 | 83,623 | 82,176 | ||||||||||||
Basic – continuing operations | $ | 0.03 | $ | (0.01 | ) | $ | (0.02 | ) | $ | (0.02 | ) | |||||
Diluted – continuing operations | $ | 0.03 | $ | (0.01 | ) | $ | (0.02 | ) | $ | (0.02 | ) | |||||
Basic – discontinuing operations | $ | 0.00 | $ | 0.00 | $ | (0.01 | ) | $ | 0.01 | |||||||
Diluted - discontinuing operations | $ | 0.00 | $ | 0.00 | $ | (0.01 | ) | $ | 0.01 | |||||||
Total - Basic | $ | 0.03 | $ | (0.01 | ) | $ | (0.03 | ) | $ | (0.01 | ) | |||||
Total - Diluted | $ | 0.03 | $ | (0.01 | ) | $ | (0.03 | ) | $ | (0.01 | ) |
The outstanding stock options for the periods with a net loss were excluded from the calculation of diluted loss per share because their effect is anti-dilutive.
13. | Related party transactions |
The Company has entered into six market rate leases for office, warehouse, and retail space with a rental Company affiliated with the Company’s Chief Executive Officer, the majority of which were entered into in 2015. The leases have a combined area of 74,520 square feet. Lease payments under these leases are approximately $68,000 per month, plus taxes, utilities, and maintenance.
Payments of $57,000 and $56,000 were made to the members of the Board of Directors for the three months ended March 31, 2020 and 2019, respectively. Payments of $112,000 and $108,000 were made to members of the Board of Directors for the six months ended March 31, 2020 and 2019, respectively.
Key management personnel also participate in the Company’s share option program (see Note 9). The Company paid or accrued compensation to key management personnel the following:
Three months
ended March 31, 2020 |
Three months
ended March 31, 2019 |
Six months
ended March 31, 2020 |
Six months
ended March 31, 2019 |
|||||||||||||
Salaries and Benefits | $ | 264 | $ | 766 | $ | 519 | $ | 1,013 | ||||||||
Stock-based compensation | - | 229 | - | 562 | ||||||||||||
Total | $ | 264 | $ | 995 | $ | 519 | $ | 1,575 |
Page | 22
PROTECH HOME MEDICAL CORP.
NOTES TO THE AMENDED AND RESTATED CONDENSED CONSOLIDATED
INTERIM FINANCIAL STATEMENTS
(UNAUDITED)
(Tabular dollar amounts expressed in thousands of Canadian Dollars, except per share amounts)
14. | Discontinued Operations |
On July 29, 2019, the Company sold the assets of Patient Home Monitoring, Inc. The amended and restated condensed consolidated interim financial statements and the notes reflect Patient Home Monitoring, Inc. as discontinued operations. Prior period amounts have been reclassified in order to be comparable to the current year presentation, as follows:
Three months
ended March 31, 2020 |
Three months
ended March 31, 2019 |
Six months
ended March 31, 2020 |
Six months
ended March 31, 2019 |
|||||||||||||
Revenue | $ | - | $ | 1,088 | $ | - | $ | 2,280 | ||||||||
Inventory sold | - | (272 | ) | - | (180 | ) | ||||||||||
Operating expenses | - | (624 | ) | (1,158 | ) | (1,286 | ) | |||||||||
Depreciation | - | (131 | ) | - | (232 | ) | ||||||||||
Net income (loss) from discontinued operations | $ | - | $ | 61 | $ | (1,158 | ) | $ | 582 |
For the periods ended March 31, 2020 and 2019, Patient Home Monitoring, Inc. was classified as a discontinued operation. There are ongoing litigation matters involving Patient Home Monitoring, Inc. During the period ended March 31, 2020, the Company accrued legal fees of $452,000 to defend itself, and in one of the matters, reached a settlement of $67,000. The Company also reached a settlement in principle of $639,000 for certain ongoing litigation, which was not formally finalized. These matters are directly related to the operations of the disposed business, and as such, are reflected as discontinued operations. As of March 31, 2020, $742,000 relating to above discontinued operations were included in accrued liabilities.
15. | Subsequent Events |
Bought deal
On June 29, 2020, the Company completed a bought deal public offering, a concurrent brokered private placement, and a non-brokered private placement to the Company’s Chief Executive Officer and a director of the Company, for 25,001,000, 1,750,000 and 927,826 units, respectively. Each unit issued was issued at a price of $1.15 for total gross proceeds of $31,831,000 and consisted of one common share and one-half of one common share purchase warrant (each whole warrant, a “Warrant”), for a total of 13,839,410 Warrants. Each Warrant will be exercisable to acquire one common share for a period of 12 months following the closing at an exercise price of $1.60 per share.
Health Technology Resources, L.L.C.
Effective August 17, 2020, the Company, through PHM Logistics Corporation, entered into a purchase agreement to acquire the shares of Health Technology Resources, L.L.C. (“HTR”), an Illinois company in the same industry as the Company. The purchase price was $7,062,000, of which $6,364,000 was paid in cash at closing, and the balance of $698,000 to be paid after closing. The $698,000 is comprised of (a) a holdback due on the two-year anniversary of the acquisition discounted at 3.86% for a value of $243,000, (b) Payroll Protection Plan funds of $274,000 to be paid on upon forgiveness, and (c) an earnout valued at $181,000. The earnout could be as high as $660,000 and the fair value was based on a Monte Carlo simulation.
Pro forma six-month revenues and net income for HTR had the acquisition occurred on October 1, 2019 were approximately $2,750,000 and $1,000,000, respectively.
Sleepwell, LLC
Effective October 23, 2020, the Company, through PHM Logistics Corporation, entered into a purchase agreement to acquire Sleepwell, LLC, a Georgia company, and its wholly owned subsidiary, Halsom Home Care, an Ohio company (collectively, “Sleepwell”). The purchase price was approximately US$11,100,000, of which approximately US$6,600,000 was paid in cash at closing, approximately US$2,800,000 was paid in common stock in January 2021, and approximately US$1,700,000 of holdbacks payable in common stock of US$1,100,000 on August 31, 2022 and US$600,000 in cash, payable upon resolution of post-closing adjustments, if any, and Sleepwell’s PPP loan.
Pro forma six-month Sleepwell revenues and net income had the acquisition occurred October 1, 2019 would have been $6,500,000 and $1,250,000, respectively.
Page | 23
PROTECH HOME MEDICAL CORP.
NOTES TO THE AMENDED AND RESTATED CONDENSED CONSOLIDATED
INTERIM FINANCIAL STATEMENTS
(UNAUDITED)
(Tabular dollar amounts expressed in thousands of Canadian Dollars, except per share amounts)
Mayhugh Drugs, Inc., dba Mayhugh’s Medical
Effective February 1, 2021, the Company, through PHM Logistics Corporation, entered into a purchase agreement to acquire Mayhugh Drugs, Inc., (“Mayhugh”) a Florida company. The purchase price was US$1,722,000, of which $1,047,000 was paid in cash at closing, with $575,000 of holdbacks payable on the six-month and twelve-month anniversaries of the closing.
Pro forma six-month Mayhugh revenues and net income had the acquisition occurred October 1, 2019 would have been $2,778,000 and $708,000, respectively.
16. | Restatement |
During the preparation of the consolidated financial statements as of and for the year ended September 30, 2020, the Company identified certain errors and adjustments in the application of its accounting policies. As such, the financial statements for the three and six months ended March 31, 2020 and 2019, and as of March 31, 2020 and September 30, 2019 have been restated to reflect of these adjustments, as set out below.
a) | Deferred revenue |
The Company rents medical equipment to customers for a fixed monthly amount on a month-to-month basis. During prior periods, the monthly rental revenue was not recognized on a pro rata basis for a given month. The appropriate recognition resulted in an increase in deferred revenue as at March 31, 2020, September 30, 2019, and October 1, 2018 by $2,005,000, $1,904,000, and $1,904,000, respectively.
b) | Classification of expenses |
The Company determined that expenses classified based on nature is more reliable and relevant. Accordingly, certain expenses were reclassified and the condensed consolidated interim statements of (loss) income and other comprehensive (loss) income for the three and six months ended March 31, 2020 and 2019 have been restated to reflect such classification.
c) | Classification of leases |
Equipment obtained on loans were classified as finance leases instead of equipment loans. Accordingly, finance leases were reclassified as equipment loans, and the statements of financial position as at March 31, 2019 and September 30, 2019, and the condensed consolidated interim statements of income (loss) and comprehensive income (loss) for the three and six months ended March 31, 2020 and 2019 have been restated to reflect such classification.
d) | Impairment of goodwill |
The impairment of goodwill of $531,000 recognized in the statement of (loss) comprehensive loss for the year ended September 30, 2019, has also been recognized in the condensed consolidated interim statements of (loss) income and other comprehensive (loss) income for the six months ended March 31, 2019.
Page | 24
PROTECH HOME MEDICAL CORP.
NOTES TO THE AMENDED AND RESTATED CONDENSED CONSOLIDATED
INTERIM FINANCIAL STATEMENTS
(UNAUDITED)
(Tabular dollar amounts expressed in thousands of Canadian Dollars, except per share amounts)
e) | Acquisition of businesses and purchase accounting |
In connection with the business acquisitions described in note 3, certain values of assets, liabilities and consideration were corrected from those previously reported in the previously issued condensed consolidated interim financial statements as at and for the period ended March 31, 2020.
f) | Changes in estimates |
During the year ended September 30, 2020, the Company revised its estimates related to reserves for expected credit losses, and for certain accruals related to litigation from discontinued operations, among others. The effects of these changes are reflected in the condensed consolidated interim financial statements as at and for the six months ended March 31, 2020.
The financial statement line items which have been restated are as follows:
Condensed consolidated interim statement of financial position as at March 31, 2020
Previously
Reported |
Adjustments | As Restated | ||||||||||
Accounts receivable, net | $ | 15,047 | $ | (1,897 | ) | $ | 13,150 | |||||
Inventory | 7,808 | (39 | ) | 7,769 | ||||||||
Total current assets | 30,154 | (1,936 | ) | 28,218 | ||||||||
Property and equipment and right of use assets, net | 26,024 | 1,522 | 27,546 | |||||||||
Goodwill | 5,744 | (2,430 | ) | 3,314 | ||||||||
Intangible assets, net | 2,685 | 1,339 | 4,024 | |||||||||
Total long-term assets | 34,557 | 431 | 34,988 | |||||||||
Total assets | 64,711 | (1,505 | ) | 63,206 | ||||||||
Current portion of loans and leases | 10,506 | (10,506 | ) | - | ||||||||
Current portion of loans | - | 8,219 | 8,219 | |||||||||
Current portion of lease liabilities | - | 2,767 | 2,767 | |||||||||
Accrued liabilities | 3,579 | 311 | 3,890 | |||||||||
Deferred revenue | - | 2,005 | 2,005 | |||||||||
Total current liabilities | 25,004 | 2,796 | 27,800 | |||||||||
Equipment loans | - | 1,018 | 1,018 | |||||||||
Lease liabilities | 6,094 | (769 | ) | 5,325 | ||||||||
Other long-term liabilities | 243 | 81 | 324 | |||||||||
Total long-term liabilities | 18,484 | 330 | 18,814 | |||||||||
Total liabilities | 43,488 | 3,126 | 46,614 | |||||||||
Accumulated deficit | (213,557 | ) | (4,632 | ) | (218,189 | ) | ||||||
Total shareholders’ equity | 21,223 | (4,631 | ) | 16,592 | ||||||||
Total liabilities and shareholders’ equity | 64,711 | (1,505 | ) | 63,206 |
Condensed consolidated interim statement of income (loss) for the three months ended March 31, 2020
Previously
Reported |
Adjustments | As Restated | ||||||||||
Sales of medical equipment and supplies | $ | 10,105 | $ | (26 | ) | $ | 10,079 | |||||
Rentals of medical equipment | 13,996 | (47 | ) | 13,949 | ||||||||
Total revenue | 24,101 | (73 | ) | 24,028 | ||||||||
Cost of revenue | 6,502 | (6,502 | ) | - | ||||||||
Inventory sold | - | 6,408 | 6,408 | |||||||||
Gross profit | 17,599 | (17,599 | ) | - | ||||||||
Selling general and administrative expenses | 12,740 | (12,740 | ) | - | ||||||||
Operating expenses | - | 12,106 | 12,106 | |||||||||
Depreciation | 4,495 | (145 | ) | 4,350 | ||||||||
Amortization of intangible assets | 167 | 36 | 203 | |||||||||
Operating income (loss) from continuing | ||||||||||||
operations | 171 | 764 | 935 | |||||||||
Interest expense | 320 | (320 | ) | - | ||||||||
Interest expense on lease liabilities | - | 141 | 141 | |||||||||
Interest expense on equipment loans | - | 179 | 179 | |||||||||
Income (loss) before taxes from continuing operations | 2,100 | 764 | 2,864 | |||||||||
Net income (loss) from continuing operations | 2,056 | 764 | 2,820 | |||||||||
Income (loss) from operations of discontinued operations | (416 | ) | 416 | - | ||||||||
Net income (loss) | 1,640 | 1,180 | 2,820 | |||||||||
Comprehensive income (loss) | 4,207 | 1,180 | 5,387 | |||||||||
Income (loss) per share- (basic) | 0.02 | 0.01 | 0.03 | |||||||||
Income (loss) per share- (diluted) | 0.02 | 0.01 | 0.03 |
Page | 25
PROTECH HOME MEDICAL CORP.
NOTES TO THE AMENDED AND RESTATED CONDENSED CONSOLIDATED
INTERIM FINANCIAL STATEMENTS
(UNAUDITED)
(Tabular dollar amounts expressed in thousands of Canadian Dollars, except per share amounts)
Condensed consolidated interim statement of income (loss) for the six months ended March 31, 2020
Previously
Reported |
Adjustments | As Restated | ||||||||||
Sales of medical equipment and supplies | $ | 19,967 | $ | (522 | ) | $ | 19,445 | |||||
Rentals of medical equipment | 26,903 | (474 | ) | 26,429 | ||||||||
Total revenue | 46,870 | (996 | ) | 45,874 | ||||||||
Cost of revenue | 12,531 | (12,531 | ) | - | ||||||||
Inventory sold | - | 12,480 | 12,480 | |||||||||
Gross profit | 34,339 | (34,339 | ) | - | ||||||||
Selling general and administrative expenses | 25,292 | (25,292 | ) | - | ||||||||
Operating expenses | - | 26,523 | 26,523 | |||||||||
Depreciation | 9,046 | (245 | ) | 8,801 | ||||||||
Amortization of intangible assets | 406 | 54 | 460 | |||||||||
Operating income (loss) from continuing operations | (247 | ) | (1,991 | ) | (2,238 | ) | ||||||
Interest expense | 624 | (624 | ) | - | ||||||||
Interest expense on lease liabilities | - | 299 | 299 | |||||||||
Interest expense on equipment loans | - | 325 | 325 | |||||||||
Income (loss) before taxes from continuing operations | 343 | (1,986 | ) | (1,643 | ) | |||||||
Net income (loss) from continuing operations | 299 | (1,986 | ) | (1,687 | ) | |||||||
Income (loss) from operations of discontinued operations | (416 | ) | (742 | ) | (1,158 | ) | ||||||
Net income (loss) | (117 | ) | (2,728 | ) | (2,845 | ) | ||||||
Comprehensive income (loss) | 1,913 | (2,727 | ) | (814 | ) | |||||||
Income (loss) per share- (basic) | 0.00 | (0.03 | ) | (0.03 | ) | |||||||
Income (loss) per share- (diluted) | 0.00 | (0.03 | ) | (0.03 | ) |
Page | 26
PROTECH HOME MEDICAL CORP.
NOTES TO THE AMENDED AND RESTATED CONDENSED CONSOLIDATED
INTERIM FINANCIAL STATEMENTS
(UNAUDITED)
(Tabular dollar amounts expressed in thousands of Canadian Dollars, except per share amounts)
Condensed consolidated interim statement of cash flows for the six months ended March 31, 2020
Previously
Reported |
Adjustments | As Restated | ||||||||||
Net loss from continuing operations | $ | 299 | $ | (1,986 | ) | $ | (1,687 | ) | ||||
Net loss from discontinued operations | (416 | ) | (742 | ) | (1,158 | ) | ||||||
Depreciation and amortization | 9,452 | (191 | ) | 9,261 | ||||||||
Interest expense on leases and loans | - | 624 | 624 | |||||||||
Bad debt expense | 4,114 | 723 | 4,837 | |||||||||
Net increase (decrease) in accounts receivable | (4,890 | ) | 1,225 | (3,665 | ) | |||||||
Net increase (decrease) in inventory | (1,473 | ) | 457 | (1,016 | ) | |||||||
Net increase (decrease) in accounts payable and accrued liabilities | 839 | 513 | 1,352 | |||||||||
Net cash flows provided by operating activities | 5,991 | 618 | 6,609 | |||||||||
Purchases of property and equipment | (77 | ) | 30 | (47 | ) | |||||||
Cash paid for acquisitions | (4,160 | ) | (263 | ) | (4,423 | ) | ||||||
Net cash flow used in investing activities | (4,068 | ) | (233 | ) | (4,301 | ) | ||||||
Repayments of long-term debt | (9,072 | ) | (636 | ) | (9,708 | ) | ||||||
Net cash flow provided by (used in) financing activities | (9,045 | ) | (636 | ) | (9,681 | ) | ||||||
Net increase (decrease) in cash | (7,122 | ) | (251 | ) | (7,373 | ) | ||||||
Effect of exchange rate changes on cash held in foreign currencies | 477 | 251 | 728 |
Condensed consolidated interim statement of income (loss) for the three months ended March 31, 2019
Previously
Reported |
Adjustments | As Restated | ||||||||||
Cost of revenue | $ | 6,082 | $ | (6,082 | ) | $ | - | |||||
Inventory sold | - | 5,839 | 5,839 | |||||||||
Gross profit | 14,742 | (14,742 | ) | - | ||||||||
Selling general and administrative expenses | 10,780 | (10,780 | ) | - | ||||||||
Operating expenses | - | 11,023 | 11,023 | |||||||||
Interest expense | 182 | (182 | ) | - | ||||||||
Interest expense on lease liabilities | - | 50 | 50 | |||||||||
Interest expense on equipment loans | - | 132 | 132 |
Condensed consolidated interim statement of income (loss) for the six months ended March 31, 2019
Previously
Reported |
Adjustments | As Restated | ||||||||||
Cost of revenue | $ | 12,312 | $ | (12,312 | ) | $ | - | |||||
Inventory sold | - | 11,851 | 11,851 | |||||||||
Gross profit | 29,021 | (29,021 | ) | - | ||||||||
Selling general and administrative expenses | 21,323 | (21,323 | ) | - | ||||||||
Operating expenses | - | 21,784 | 21,784 | |||||||||
Impairment of goodwill | - | 531 | 531 | |||||||||
Operating income from continuing operations | 316 | (531 | ) | (215 | ) | |||||||
Interest expense | 318 | (318 | ) | - | ||||||||
Interest expense on lease liabilities | - | 63 | 63 | |||||||||
Interest expense on equipment loans | - | 255 | 255 | |||||||||
Income (loss) before taxes from continuing operations | (873 | ) | (531 | ) | (1,404 | ) | ||||||
Net income (loss) from continuing operations | (978 | ) | (531 | ) | (1,509 | ) | ||||||
Net income (loss) | (396 | ) | (531 | ) | (927 | ) | ||||||
Comprehensive income (loss) | 566 | (531 | ) | 35 | ||||||||
Net income (loss) per share Basic | (0.00 | ) | (0.01 | ) | (0.01 | ) | ||||||
Net income (loss per share Diluted | (0.00 | ) | (0.01 | ) | (0.01 | ) |
Page | 27
PROTECH HOME MEDICAL CORP.
NOTES TO THE AMENDED AND RESTATED CONDENSED CONSOLIDATED
INTERIM FINANCIAL STATEMENTS
(UNAUDITED)
(Tabular dollar amounts expressed in thousands of Canadian Dollars, except per share amounts)
Condensed consolidated interim statement of cash flows for the six months ended March 31, 2019
Previously
Reported |
Adjustments | As Restated | ||||||||||
Net loss from continuing operations | $ | (978 | ) | $ | (531 | ) | $ | (1,509 | ) | |||
Interest expense on leases and loans | - | 318 | 318 | |||||||||
Impairment of goodwill | - | 531 | 531 | |||||||||
Net cash flows provided by operating activities | 4,108 | 318 | 4,426 | |||||||||
Repayments of long-term debt | (6,382 | ) | (318 | ) | (6,700 | ) | ||||||
Net cash flow provided by (used in) financing activities | 11,181 | (318 | ) | 10,863 |
Note 3 acquisition of businesses and purchase accounting
Line items adjusted on the net assets acquired of Cooley are as follows:
Previously
Reported |
Adjustments | As Restated | ||||||||||
Inventory | $ | 818 | $ | 200 | $ | 1,018 | ||||||
Property and equipment and right of use assets | 2,859 | (2,859 | ) | - | ||||||||
Property and equipment | - | 2,532 | 2,532 | |||||||||
Right of use assets | - | 1,338 | 1,338 | |||||||||
Goodwill | 1,794 | (1,234 | ) | 560 | ||||||||
Intangible asset- Brand | - | 106 | 106 | |||||||||
Intangible asset- Non-compete | - | 26 | 26 | |||||||||
Intangible asset-Customer relationship | - | 437 | 437 | |||||||||
Accounts payable and accrued liabilities | (1,477 | ) | 398 | $ | (1,079 | ) | ||||||
Deferred revenue | - | (271 | ) | (271 | ) | |||||||
Equipment loans | - | (674 | ) | (674 | ) | |||||||
Lease liabilities | (1,635 | ) | 297 | (1,338 | ) | |||||||
Net assets acquired | 3,321 | 296 | 3,617 | |||||||||
Cash to be paid after closing, included in accrued | 232 | 296 | 528 | |||||||||
liabilities | ||||||||||||
Consideration paid or payable | 3,321 | 296 | 3,617 |
Line items adjusted on the net assets acquired of Acadia are as follows:
Previously
Reported |
Adjustments | As Restated | ||||||||||
Accounts receivable, net | $ | 139 | $ | 51 | $ | 190 | ||||||
Inventory | 350 | (23 | ) | 327 | ||||||||
Property and equipment | 330 | 186 | 516 | |||||||||
Right of use assets | - | 321 | 321 | |||||||||
Goodwill | 1,694 | (1,196 | ) | 498 | ||||||||
Intangible asset- Brand | - | 173 | 173 | |||||||||
Intangible asset- Non-compete | - | 40 | 40 | |||||||||
Intangible asset- Customer relationship | - | 611 | 611 | |||||||||
Deferred revenue | - | (59 | ) | (59 | ) | |||||||
Equipment loans | - | (181 | ) | (181 | ) | |||||||
Lease liabilities | (373 | ) | 177 | (196 | ) | |||||||
Net assets acquired | 1,861 | 100 | 1,961 | |||||||||
Cash to be paid after closing, included in accrued liabilities | 527 | (527 | ) | - | ||||||||
Cash to be paid after closing, included in accrued liabilities | - | 303 | 303 | |||||||||
Cash to be paid after closing, included in other long-term | - | 324 | 324 | |||||||||
liabilities | ||||||||||||
Consideration paid or payable | 1,861 | 100 | 1,961 |
Page | 28
PROTECH HOME MEDICAL CORP.
NOTES TO THE AMENDED AND RESTATED CONDENSED CONSOLIDATED
INTERIM FINANCIAL STATEMENTS
(UNAUDITED)
(Tabular dollar amounts expressed in thousands of Canadian Dollars, except per share amounts)
Note 6 additions in property and equipment reclassified as transfers from inventory for the six months ended March 31, 2020
Previously
Reported |
Adjustments | As Restated | ||||||||||
Additions of monitoring equipment | $ | 5,990 | $ | (5,990 | ) | $ | - | |||||
Transfers from inventory | - | 5,749 | 5,749 |
Note 6 additions in property and equipment reclassified as transfers from inventory for the six months ended March 31, 2019
Previously
Reported |
Adjustments | As Restated | ||||||||||
Additions of monitoring equipment | $ | 3,651 | $ | (3,651 | ) | $ | - | |||||
Transfers from inventory | - | 3,651 | 3,651 |
Condensed consolidated interim statement of financial position as at September 30, 2019
Previously
Reported |
Adjustments | As Restated | ||||||||||
Current portion of leases | $ | 8,528 | $ | (7,971 | ) | $ | 557 | |||||
Lease liabilities | 3,081 | (1,704 | ) | 1,377 | ||||||||
Current portion of equipment loans | - | 8,179 | 8,179 | |||||||||
Equipment loans | - | 1,496 | 1,496 | |||||||||
Deferred revenue | - | 1,904 | 1,904 | |||||||||
Total current liabilities | 18,969 | 2,112 | 21,081 | |||||||||
Total long-term liabilities | 17,047 | (208 | ) | 16,839 | ||||||||
Total liabilities | 36,016 | 1,904 | 37,920 | |||||||||
Accumulated deficit | (213,440 | ) | (1,904 | ) | (215,344 | ) | ||||||
Total shareholders’ equity | 19,149 | (1,904 | ) | 17,245 |
Condensed consolidated interim statement of financial position as at October 1, 2018
Previously
Reported |
Adjustments | As Restated | ||||||||||
Deferred revenue | $ | - | $ | 1,904 | $ | 1,904 | ||||||
Total current liabilities | 18,395 | 1,904 | 20,299 | |||||||||
Total liabilities | 29,835 | 1,904 | 31,739 | |||||||||
Accumulated deficit | (206,054 | ) | (1,904 | ) | (207,958 | ) | ||||||
Total shareholders’ equity | 19,269 | (1,904 | ) | 17,365 |
Page | 29
Exhibit 99.112
PROTECH HOME MEDICAL ANNOUNCES INTENTION TO CHANGE NAME AND CONSOLIDATE STOCK IN ANTICIPATION OF PROPOSED NASDAQ LISTING
PROTECH HOME MEDICAL TO CHANGE NAME TO QUIPT HOME MEDICAL, A BURGEONING LEADER IN AT HOME RESPIRATORY CARE EXPANDING RAPIDLY THROUGHOUT THE UNITED STATES
Cincinnati, Ohio – May 11, 2021 – Protech Home Medical Corp. (“Protech” or the “Company”) (TSXV:PTQ; OTCQX:PTQQF), a U.S. based leader in the home medical equipment industry, focused on end-to-end respiratory care, is pleased to announce that, subject to the receipt of all required regulatory approvals, including the approval of the TSX Venture Exchange (the “TSXV”), it intends to change its name to “Quipt Home Medical Corp.” (the “Name Change”) and consolidate its common shares (each, a “Common Share”) on the basis of one (1) post-consolidation Common Share for every four (4) pre-consolidation Shares (the “Share Consolidation”). The Name Change and Consolidation are anticipated to be completed on May 13, 2021 and it is expected that the Common Shares will commence trading on the TSXV on a post-Share Consolidation basis under the new name and new symbol “QIPT” on such date. The Name Change, symbol change and Share Consolidation are proposed to be completed in anticipation of the Company’s application to list the Common Shares on the NASDAQ Capital Market (“NASDAQ”).
The Company aims to set the standard of the home health industry and will be branded and utilized in local markets over time to meet the one-of-a-kind needs of every individual that puts their confidence in the name. Supported by the reach and the reputation of our current local brands, following the Name Change, the Company will continue to strive to enrich the lives of our patients by providing full-service technology-enabled home healthcare solutions to suit every kind of need, for every kind of patient.
The Company expects that on the same date that the Common Shares begin to trade on a post-Share Consolidation basis under the new name, its 8.0% unsecured convertible debentures due on March 7, 2024 (the “Debentures”) will commence trading on the TSXV under the new symbol “QIPT.DB.A”. No action will be required by existing holders of the Debentures with respect to the Name Change or Share Consolidation.
The CUSIP numbers assigned to the Common Shares and Debentures under its new name will be 74880P104 and 74880PAA2, respectively.
It is anticipated that Computershare Trust Company of Canada (“Computershare”) will mail letters of transmittal to the shareholders providing instructions on exchanging pre-Consolidation share certificates for post-Consolidation share certificates. At that time, shareholders are encouraged to send their share certificates, together with their letter of transmittal, to Computershare in accordance with the instructions in the letter of transmittal.
The Company is currently targeting to complete the proposed listing on NASDAQ by the end of June 2021, or as soon as possible thereafter, subject to satisfaction of all necessary listing requirements and acceptance of the Company’s Form 40-F Registration Statement by the United States Securities and Exchange Commission (the “SEC”). The Company will continue to trade under the symbol “PTQQF” on the OTCQX, following the Name Change and Share Consolidation and prior to completion of its proposed NASDAQ listing. While the Company intends to satisfy all of the applicable listing criteria, no assurance can be given that its application will be approved.
As previously disclosed in connection with the Company’s application for listing on the NASDAQ Capital Market, the Company’s auditor has concluded its review of the Q1, Q2 and Q3 of Fiscal 2020 financial statements for incorporation to the Form 40-F Registration Statement to be filed with the SEC. These restated and amended financial statements have been filed at www.sedar.com. For additional clarification, please note there has been no changes to the audited Fiscal Year-End 2020 financials as previously filed by the Company.
Management Commentary
“This represents a major milestone in the history of our Company, as we transform into Quipt Home Medical, readying for national expansion across the United States as a leader in respiratory homecare. Driven by our technology focused, patient-centric model, organic growth initiatives such as elevating our brand, combined with our acquisition plans has significantly widened our aperture of opportunity for our business,” said Greg Crawford, Chairman and CEO of Protech. “We feel timing our renaming process alongside our proposed NASDAQ listing will allow us to significantly garner awareness for our company in the United States. We expect to utilize Quipt as a brand over time in local markets, aiding in our robust organic growth strategy. Our interconnected healthcare platform is providing us much opportunity to gain market share and Quipt has all the resources needed to seize these opportunities. Additionally, I am pleased to report that our acquisition pipeline continues to be full, and we have a sustained focus on larger accretive transactions which further our goal of creating scale, and we look forward to keeping shareholders apprised as appropriate.”
ABOUT PROTECH HOME MEDICAL CORP.
The Company provides in-home monitoring and disease management services including end-to-end respiratory solutions for patients in the United States healthcare market. It seeks to continue to expand its offerings to include the management of several chronic disease states focusing on patients with heart or pulmonary disease, sleep disorders, reduced mobility and other chronic health conditions. The primary business objective of the Company is to create shareholder value by offering a broader range of services to patients in need of in-home monitoring and chronic disease management. The Company’s organic growth strategy is to increase annual revenue per patient by offering multiple services to the same patient, consolidating the patient’s services and making life easier for the patient.
Forward-Looking Statements
Certain statements contained in this press release constitute "forward-looking information" as such term is defined in applicable Canadian securities legislation. The words "may", "would", "could", "should", "potential", "will", "seek", "intend", "plan", "anticipate", "believe", "estimate", "expect" and similar expressions as they relate to the Company, including: governmental and TSXV approval of the proposed Name Change and Share Consolidation; the timing and completion of the proposed Name Change and Share Consolidation; the timing and completion of the proposed listing on NASDAQ; the filing and acceptance of the Form 40-F filing with the SEC, the Company anticipating to add additional locations either through organic opportunities or through inorganic opportunities; the Company expecting to derive strong revenue synergies from new locations organically; the Company’s plans to increase its footprint in current markets as well as adding new markets; the Company expecting to have further news on organic growth opportunities in the near future; and the Company expecting to be busy with new acquisitions in the near term; are intended to identify forward-looking information. All statements other than statements of historical fact may be forward-looking information. Such statements reflect the Company's current views and intentions with respect to future events, and current information available to the Company, and are subject to certain risks, uncertainties and assumptions , including: the Company successfully identified, negotiating and completing additional acquisitions, including accretive acquisitions. Many factors could cause the actual results, performance or achievements that may be expressed or implied by such forward-looking information to vary from those described herein should one or more of these risks or uncertainties materialize. Examples of such risk factors include, without limitation: credit; market (including equity, commodity, foreign exchange and interest rate); liquidity; operational (including technology and infrastructure); reputational; insurance; strategic; regulatory; legal; environmental; capital adequacy; the general business and economic conditions in the regions in which the Company operates; the ability of the Company to execute on key priorities, including the successful completion of acquisitions, business retention, and strategic plans and to attract, develop and retain key executives; difficulty integrating newly acquired businesses; the ability to implement business strategies and pursue business opportunities; low profit market segments; disruptions in or attacks (including cyber-attacks) on the Company's information technology, internet, network access or other voice or data communications systems or services; the evolution of various types of fraud or other criminal behavior to which the Company is exposed; the failure of third parties to comply with their obligations to the Company or its affiliates; the impact of new and changes to, or application of, current laws and regulations; decline of reimbursement rates; dependence on few payors; possible new drug discoveries; a novel business model; dependence on key suppliers; granting of permits and licenses in a highly regulated business; the overall difficult litigation environment, including in the U.S.; increased competition; changes in foreign currency rates; increased funding costs and market volatility due to market illiquidity and competition for funding; the availability of funds and resources to pursue operations; critical accounting estimates and changes to accounting standards, policies, and methods used by the Company; the occurrence of natural and unnatural catastrophic events and claims resulting from such events; and risks related to COVID-19 including various recommendations, orders and measures of governmental authorities to try to limit the pandemic, including travel restrictions, border closures, non-essential business closures, quarantines, self-isolations, shelters-in-place and social distancing, disruptions to markets, economic activity, financing, supply chains and sales channels, and a deterioration of general economic conditions including a possible national or global recession; as well as those risk factors discussed or referred to in the Company’s disclosure documents filed with the securities regulatory authorities in certain provinces of Canada and available at www.sedar.com. Should any factor affect the Company in an unexpected manner, or should assumptions underlying the forward-looking information prove incorrect, the actual results or events may differ materially from the results or events predicted. Any such forward-looking information is expressly qualified in its entirety by this cautionary statement. Moreover, the Company does not assume responsibility for the accuracy or completeness of such forward-looking information. The forward-looking information included in this press release is made as of the date of this press release and the Company undertakes no obligation to publicly update or revise any forward-looking information, other than as required by applicable law.
Neither the TSX Venture Exchange nor its Regulation Services Provider (as that term is defined in the policies of the TSX Venture Exchange) accepts responsibility for the adequacy or accuracy of this release.
For further information please visit our website at www.protechhomemedical.com, or contact:
Cole Stevens
VP of Corporate Development
Protech Home Medical Corp.
859-300-6455
cole.stevens@myphm.com
Gregory Crawford
Chief Executive Officer
Protech Home Medical Corp.
859-300-6455
investorinfo@myphm.com
Exhibit 99.113
Number: BC1146327 CERTIFICATE OF CHANGE OF NAME BUSINESS CORPORATIONS ACT I Hereby Certify that PROTECH HOME MEDICAL CORP. changed its name to QUIPT HOME MEDICAL CORP. on May 13, 2021 at 12:01 AM Pacific Time. Issued under my hand at Victoria, British Columbia On May 13, 2021 CAROL PREST Registrar of Companies Province of British Columbia Canada ELECTRONIC CERTIFICATE
Exhibit 99.114
QUIPT HOME MEDICAL COMMENCES TRADING ON CONSOLIDATED BASIS
Cincinnati, Ohio – May 13, 2021 – Quipt Home Medical Corp. (“Quipt” or the “Company”) (TSXV:QIPT; OTCQX:PTQQD), a U.S. based leader in the home medical equipment industry, focused on end-to-end respiratory care, is pleased to announce that that further to its press release dated May 11, 2021, effective May 13, 2021, all of its issued and outstanding common shares (“Common Shares”) began trading on the TSX Venture Exchange ("TSXV") on a post-consolidation basis and under its new name and new TSXV symbol (QIPT).
On May 11, 2021, the Company announced that the Common Shares would be consolidated on the basis of one (1) post-consolidation Common Share for each four (4) pre-consolidation Common Shares (the “Share Consolidation”). The Share Consolidation represents another step towards the proposed listing of the Common Shares on The Nasdaq Capital Market (“Nasdaq”) by meeting the minimum share price requirement set by Nasdaq for an initial listing of shares.
The Share Consolidation has reduced the number of existing Common Shares from 122,575,285 Common Shares to 30,643,823 Common Shares. A letter of transmittal was sent by mail to registered shareholders advising that the Share Consolidation has taken effect. The letter of transmittal contains instructions on how registered shareholders can exchange their share certificates or Direct Registration System (“DRS”) statements evidencing their pre-consolidation Common Shares for new share certificates or new DRS statements representing the number of post-consolidation Common Shares to which they are entitled.
Quipt’s common shares will continue to trade on the OTCQX under the ticker symbol “PTQQD” for the next 20 business days denoting the Share Consolidation, prior to reverting back to “PTQQF”. Quipt plans to change its OTCQX ticker symbol to “QIPT” upon a Nasdaq up listing.
The Company also wishes to note the amended conversion price of its 8.0% unsecured convertible debentures due on March 7, 2024. The amended conversion price is $5.20 per share reflecting the Share Consolidation and will continue trading on the TSXV under the new symbol “QIPT.DB.A”.
ABOUT QUIPT HOME MEDICAL CORP.
The Company provides in-home monitoring and disease management services including end-to-end respiratory solutions for patients in the United States healthcare market. It seeks to continue to expand its offerings to include the management of several chronic disease states focusing on patients with heart or pulmonary disease, sleep disorders, reduced mobility and other chronic health conditions. The primary business objective of the Company is to create shareholder value by offering a broader range of services to patients in need of in-home monitoring and chronic disease management. The Company’s organic growth strategy is to increase annual revenue per patient by offering multiple services to the same patient, consolidating the patient’s services and making life easier for the patient.
Forward-Looking Statements
Certain statements contained in this press release constitute "forward-looking information" as such term is defined in applicable Canadian securities legislation. The words "may", "would", "could", "should", "potential", "will", "seek", "intend", "plan", "anticipate", "believe", "estimate", "expect" and similar expressions as they relate to the Company, including: and the timing and completion of the proposed listing on Nasdaq; are intended to identify forward-looking information. All statements other than statements of historical fact may be forward-looking information. Such statements reflect the Company's current views and intentions with respect to future events, and current information available to the Company, and are subject to certain risks, uncertainties and assumptions , including: the Company successfully identified, negotiating and completing additional acquisitions, including accretive acquisitions. Many factors could cause the actual results, performance or achievements that may be expressed or implied by such forward-looking information to vary from those described herein should one or more of these risks or uncertainties materialize. Examples of such risk factors include, without limitation: credit; market (including equity, commodity, foreign exchange and interest rate); liquidity; operational (including technology and infrastructure); reputational; insurance; strategic; regulatory; legal; environmental; capital adequacy; the general business and economic conditions in the regions in which the Company operates; the ability of the Company to execute on key priorities, including the successful completion of acquisitions, business retention, and strategic plans and to attract, develop and retain key executives; difficulty integrating newly acquired businesses; the ability to implement business strategies and pursue business opportunities; low profit market segments; disruptions in or attacks (including cyber-attacks) on the Company's information technology, internet, network access or other voice or data communications systems or services; the evolution of various types of fraud or other criminal behavior to which the Company is exposed; the failure of third parties to comply with their obligations to the Company or its affiliates; the impact of new and changes to, or application of, current laws and regulations; decline of reimbursement rates; dependence on few payors; possible new drug discoveries; a novel business model; dependence on key suppliers; granting of permits and licenses in a highly regulated business; the overall difficult litigation environment, including in the U.S.; increased competition; changes in foreign currency rates; increased funding costs and market volatility due to market illiquidity and competition for funding; the availability of funds and resources to pursue operations; critical accounting estimates and changes to accounting standards, policies, and methods used by the Company; the occurrence of natural and unnatural catastrophic events and claims resulting from such events; and risks related to COVID-19 including various recommendations, orders and measures of governmental authorities to try to limit the pandemic, including travel restrictions, border closures, non-essential business closures, quarantines, self-isolations, shelters-in-place and social distancing, disruptions to markets, economic activity, financing, supply chains and sales channels, and a deterioration of general economic conditions including a possible national or global recession; as well as those risk factors discussed or referred to in the Company’s disclosure documents filed with the securities regulatory authorities in certain provinces of Canada and available at www.sedar.com. Should any factor affect the Company in an unexpected manner, or should assumptions underlying the forward-looking information prove incorrect, the actual results or events may differ materially from the results or events predicted. Any such forward-looking information is expressly qualified in its entirety by this cautionary statement. Moreover, the Company does not assume responsibility for the accuracy or completeness of such forward-looking information. The forward-looking information included in this press release is made as of the date of this press release and the Company undertakes no obligation to publicly update or revise any forward-looking information, other than as required by applicable law.
Neither the TSX Venture Exchange nor its Regulation Services Provider (as that term is defined in the policies of the TSX Venture Exchange) accepts responsibility for the adequacy or accuracy of this release.
For further information please visit our website at www.protechhomemedical.com, or contact:
Cole Stevens
VP of Corporate Development
Quipt Home Medical Corp.
859-300-6455
cole.stevens@myphm.com
Gregory Crawford
Chief Executive Officer
Quipt Home Medical Corp.
859-300-6455
investorinfo@myphm.com
Exhibit 99.115
1st Quarter 2021 | |
Amended Management’s
Discussion and
For the Three Months Ended December 31, 2020 |
Quipt Home Medical Corp. (formerly, Protech Home Medical Corp.)
|
Notice to Reader
As described in Note 19, the Company identified certain errors and adjustments, as set out below:
Recognition and measurement of assets, liabilities, and consideration relating to a business acquisition, that was previously reported in the previously filed condensed consolidated interim financial statements as at and for the three months ended December 31, 2020 have been adjusted.
For comparative purposes, the consolidated statements of financial position as at September 30, 2020, and the statements of income (loss) and comprehensive income (loss) and statement of cash flows for the three months ended December 31, 2019, that were included in the previously filed condensed consolidated interim financial statements as at and for the period ended December 31, 2020, have been adjusted for the following:
● | Change in accounting policy resulting from the change in presentation currency to the US dollar. |
● | Recognition and measurement of assets, liabilities, and consideration relating to business acquisitions, that were previously reported in the comparative period. |
Accordingly, the previously filed condensed consolidated interim financial statements as at and for the three months ended December 31, 2020 have been withdrawn and are refiled dated May 13, 2021.
AMENDED MANAGEMENT’S DISCUSSION AND ANALYSIS
December 31, 2020 and 2019
(Tabular
dollar amounts expressed in thousands, except per share
amounts)
The following Management’s Discussion and Analysis (“MD&A”) of the financial condition and results of operations of Quipt Home Medical Corp., formerly Protech Home Medical Corp., and its subsidiaries (“Quipt” or the “Company”), prepared as of May 13, 2021 and should be read in conjunction with the consolidated financial statements for the three months ended December 31, 2020, including the notes therein. The consolidated financial statements have been prepared in accordance with International Financial Reporting Standards (“IFRS”). Unless otherwise specified, all financial data is presented in US dollars. The words “we”, “our”, “us”, “Company”, and “Quipt” refer to Quipt Home Medical Corp. and/or the management and employees of the Company.
Additional information relevant to the Company is available for review on SEDAR at www.sedar.com.
Table of Contents | |
Page 1 | Caution Regarding Forward-Looking Statements |
Page 2 | Selected Annual Information |
Page 3 | About Our Business and Operating Results |
Page 5 | Financial Position |
Page 8 | Accounting and Disclosure Matters |
Page 10 | Financial Instruments and Risk Management |
Page 11 |
Risk Factors |
CAUTION REGARDING FORWARD-LOOKING STATEMENTS
Information included or incorporated by reference in this report may contain forward-looking statements. This information may involve known and unknown risks, uncertainties, and other factors which may cause our actual results, performance, or achievements to be materially different from the future results, performance, or achievements expressed or implied by any forward-looking statements. Forward-looking statements, which involve assumptions and describe our future, strategies, and expectations, are generally identifiable by use of the words “may,” “will,” “should,” “expect,” “anticipate,” “estimate,” “believe,” “plan,” “intend” or “project” or the negative of these words or other variations on these words or comparable terminology. Readers are cautioned regarding statements discussing profitability; growth strategies; anticipated trends in our industry; our future financing plans; and our anticipated needs for working capital. Actual events or results may differ materially from those discussed in forward-looking statements. There can be no assurance that the forward-looking statements contained in this report will in fact occur. The Company bases its forward-looking statements on information currently available to it and assumes no obligation to update them.
THE FORWARD-LOOKING INFORMATION CONTAINED IN THIS MD&A PRESENTS THE EXPECTATIONS OF THE COMPANY AS OF THE DATE OF THIS MD&A AND, ACCORDINGLY, IS SUBJECT TO CHANGE AFTER SUCH DATE. READERS SHOULD NOT PLACE UNDUE IMPORTANCE ON FORWARD-LOOKING INFORMATION AND SHOULD NOT RELY UPON THIS INFORMATION AS OF ANY OTHER DATE. WHILE THE COMPANY MAY ELECT TO, THE COMPANY DOES NOT UNDERTAKE TO UPDATE THIS INFORMATION AT ANY PARTICULAR TIME EXCEPT AS REQUIRED BY APPLICABLE SECURITIES LEGISLATION
Page | 1
AMENDED MANAGEMENT’S DISCUSSION AND ANALYSIS
December 31, 2020 and 2019
(Tabular
dollar amounts expressed in thousands, except per share
amounts)
FIRST QUARTER 2021 HIGHLIGHTS
- | Increased revenues for the three months ended December 31, 2020 to $22.8 million, or 37%, from the prior year period |
- | Completed an acquisition during the three months ended December 31, 2020 and a second subsequent to quarter end |
- | Increased the number of equipment set-ups to 76,691 for the three months ended December 31, 2020 from 62,999 in the prior year period, an increase of 22% |
- | Increased the number of respiratory resupply set-ups to 34,996 for the three months ended December 31, 2020 from 13,439 in the prior year period, an increase of 160% |
- | Generated Adjusted EBITDA of $5.1 million, a 313% increase from the prior year. |
SELECTED QUARTERLY INFORMATION
As of or for the three months ended | ||||||||
December 31, 2020 | December 31, 2019 | |||||||
Unique patients | 51,836 | 39,070 | ||||||
Number of equipment set-ups or deliveries | 76,691 | 62,999 | ||||||
Respiratory resupply set-ups or deliveries | 34,996 | 13,439 | ||||||
Revenue | $ | 22,755 | $ | 16,565 | ||||
Inventory sold | $ | 6,071 | $ | 4,595 | ||||
Adjusted EBITDA (1) | $ | 5,126 | $ | 1,240 | ||||
Adjusted EBITDA % | 22.5 | % | 7.5 | % | ||||
Cash | $ | 23,593 | $ | 6,336 |
(1) | Refer to page three for definition of Adjusted earnings before interest, taxes, depreciation, and amortization (“EBITDA”) |
The words “we”, “our”, “us”, “Company”, and “Quipt” refer to Quipt Home Medical Corp. and/or the management and employees of the Company.
Reporting entity
The Company changed its name from Protech Home Medical Corp. to Quipt Home Medical Corp. on May 13, 2021.The Company’s shares are traded on the TSX Venture Exchange under the symbol QIPT. The stock is also traded on the OTCQX Best Market in the United States under the symbol PTQQF. Effective May 13, 2021, the Company consolidated its issued and outstanding common shares based on one post-consolidation common share for every four pre-consolidation common shares. The change in name and share consolidation were completed in anticipation of the Company’s application to list its common shares on the NASDAQ Capital Market (“NASDAQ”). Unless otherwise stated, the share, options and warrants along with corresponding exercise prices and per-share amounts have been restated retrospectively to reflect this share consolidation.
Change in Presentation Currency
Effective October 1, 2020, the Company changed its presentation currency to US dollars from Canadian dollars. Since the Company operates in the United States and its functional currency is US dollars, the Company believes that the change in presentation currency will provide stakeholders with a better reflection of the Company's business activities and enhance the comparability of the Company's financial information. The change in presentation currency represents a voluntary change in accounting policy, which is accounted for retrospectively. The consolidated financial statements for all periods presented have been translated into the new presentation currency in accordance with IAS 21 - The Effects of Changes in Foreign Exchange Rates.
The consolidated statements of operations and comprehensive income (loss) and the consolidated statements of cash flows have been translated into the presentation currency using the average exchange rates prevailing during each reporting period. In the consolidated statements of financial position, all assets and liabilities have been translated using the period-end exchange rates, and all resulting exchange differences have been recognized in accumulated other comprehensive loss. Asset and liability amounts previously reported in Canadian dollars have been translated into US dollars as at October 1, 2019 and September 30, 2020, using the period end exchange rates of 1.3242 C$/US$ and 1.3339 C$/US$, respectively. The statements of income (loss) and comprehensive income (loss) and statement of cash flows have been translated at an exchange rate of 1.3199 C$/US$ three months ended December 31, 2019.
Page | 2
AMENDED MANAGEMENT’S DISCUSSION AND ANALYSIS
December 31, 2020 and 2019
(Tabular
dollar amounts expressed in thousands, except per share
amounts)
ABOUT OUR BUSINESS
Quipt business objective
The explosive growth in the number of elderly patients in the US healthcare market is creating pressure to provide more efficient delivery systems. Healthcare providers, such as hospitals, physicians, and pharmacies, are seeking partners that can offer a range of products and services that improve outcomes, reduce hospital readmissions, and help control costs. Quipt fills this need by delivering a growing number of specialized products and services to achieve these goals. Quipt seeks to provide an ever-expanding line of products and services over larger geographic regions within the United States using several growth strategies.
Future Outlook
Quipt expects to generate net profit and positive adjusted EBITDA, excluding IFRS treatment of non-cash items. Our top priority continues to be the generation of operational net profit, positive cash flow, and growth in EBITDA in fiscal year 2021 and beyond. As we continue to expand in our existing markets, we plan to leverage our business platforms to enter new markets. As we continue to grow and achieve scale, the increasing cash generated from operations will be used to market our service and to gain market share. Our continued integration and rationalization, as well as our acquisitions, have given us a focus and path towards profitability at each business unit.
Going forward, we seek to find ways to continue to grow our customer base and penetrate these markets, while continuing to streamline our operational platform and generate positive cash flow and operational profits. We will continue to improve on operational efficiencies and call center management as they are key execution points in order to maintain our healthy gross margin while growing revenues via the cross selling of services to existing and acquired patients.
OPERATING RESULTS
Accounting policies and estimates
The consolidated financial statements for the quarter ended December 31, 2020 are prepared under International Financial Reporting Standards (“IFRS”) issued by the governing body of the International Accounting Standards Board (“IASB”). The preparation of consolidated financial statements in conformity with IFRS requires management to make estimates and assumptions. These estimates and assumptions affect the reported amounts of assets and liabilities, disclosures of contingent assets and liabilities, and the reported amounts of revenues and expenses for the period of consolidated financial statements.
IFRS accounting treatment
Management does not rely upon non-cash IFRS accounting treatment of certain items such as impairment of goodwill and intangible assets, changes in the fair value of financial derivatives, stock-based compensation and amortization of intangible assets when planning, monitoring, and evaluating the Company’ s performance or in making financial decisions.
Non-IFRS measures
Throughout this MD&A, references are made to several measures which are believed to be meaningful in the assessment of the Company’ s performance. These metrics are non-standard measures under IFRS and may not be identical to similarly to it led measures reported by other companies. Also, in the future, we may disclose different non- IFRS financial measures in order to help our investors more meaningfully evaluate and compare our future results of operations to our previously reported results of operations. Readers are cautioned that the disclosure of these items is meant to add to, and not replace, the discussion of financial results as determined in accordance with IFRS. The primary purpose of these non-IFRS measures is to provide supplemental information that may prove useful to investors who wish to consider the impact of certain non-cash or uncontrollable items on the Company’s operating performance.
EBITDA and Adjusted EBITDA
In calculating EBITDA and adjusted EBITDA, certain items (mostly non-cash) are excluded from net income (loss), including interest, income taxes, depreciation, amortization, change in fair value of derivative financial liabilities, and stock-based compensation. Set forth below are descriptions of the financial items that have been excluded from net income or loss to calculate EBITDA and Adjusted EBITDA and the material limitations associated with using these non-IFRS financial measures as compared to net income or loss.
- | Depreciation and amortization expense may be useful for investors to consider because they generally represent the wear and tear on our property and equipment used in our operations and amortization of intangibles valued in acquisitions. However, we do not believe these charges necessarily reflect the current and ongoing cash charges related to our operating costs. |
Page | 3
AMENDED MANAGEMENT’S DISCUSSION AND ANALYSIS
December 31, 2020 and 2019
(Tabular
dollar amounts expressed in thousands, except per share
amounts)
- | The amount of interest expense we incur or interest income we generate may be useful for investors to consider and may result in current cash inflows or outflows. However, we do not consider the amount of interest expense to be a representative component of the day-to-day operating performance of our business. |
- | The change in fair value of derivative financial liabilities is the change in value of the debenture, warrants, and purchase price payable in common shares, and these changes are non-cash. |
- | Income tax expense may be useful for investors to consider because it generally represents the taxes which may be payable for the period and the change in deferred income taxes and may reduce the amount of funds otherwise available for use. However, we do not consider the amount of income tax expense to be a representative component of the day-to-day operating performance of our business. |
- | Stock-based compensation may be useful for investors to consider because it is an estimate of the non-cash component of compensation received by the Company’s directors, officers, employees, and consultants. However, stock-based compensation is being excluded from the Company’s operating expenses because the decisions which gave rise to these expenses were not made to increase revenue in a particular period but were made for the Company’s long-term benefit over multiple periods. While strategic decisions, such as those to issue stock-based awards are made to further the Company’s long-term strategic objectives and impact the Company’s earnings under IFRS, these items affect multiple periods and management is not able to change or affect these items within any period. |
Management uses both IFRS and non-IFRS measures when planning, monitoring, and evaluating the Company’s performance.
The following table of adjusted EBITDA shows the Company’s IFRS measures reconciled to EBITDA (non-IFRS measure) for the indicated periods. The table of net income (loss) is also measured based on IFRS. The tables are shown net of discontinued operations.
Three months
ended December 30, 2020 |
Three months
ended December 31, 2019 |
|||||||
Net income (loss) from continuing operations | $ | 1,366 | $ | (3,778 | ) | |||
Add back: | ||||||||
Depreciation and amortization | 3,681 | 3,568 | ||||||
Interest expense, net | 486 | 457 | ||||||
Change in foreign currency transactions | 2 | 408 | ||||||
Change in fair values of derivative financial liabilities | 983 | 553 | ||||||
Recovery of income taxes | (1,407 | ) | - | |||||
EBITDA | $ | 5,111 | $ | 1,208 | ||||
Stock-based compensation | 15 | 32 | ||||||
Adjusted EBITDA | $ | 5,126 | $ | 1,240 | ||||
Three months ended December 31, 2020 |
Three months ended
December 31, 2019 |
|||||||
Revenue | $ | 22,755 | $ | 16,565 | ||||
Inventory sold | 6,071 | 4,595 | ||||||
Operating expenses | 11,529 | 10,897 | ||||||
Depreciation | 3,366 | 3,373 | ||||||
Amortization of intangible assets | 315 | 195 | ||||||
Stock-based compensation | 15 | 32 | ||||||
Acquisition-related costs | 56 | - | ||||||
Gain on disposal of property and equipment | (27 | ) | (60 | ) | ||||
Other expense (income) | - | (107 | ) | |||||
Interest expense, net | 486 | 457 | ||||||
Loss on foreign currency transactions | 2 | 408 | ||||||
Change in fair values of derivative financial liabilities | 983 | 553 | ||||||
Recovery of income taxes | (1,407 | ) | - | |||||
Net income (loss) | $ | 1,366 | $ | (3,778 | ) | |||
(Loss) income per share |
||||||||
Basic earnings per share | $ | 0.05 | $ | (0.22 | ) | |||
Diluted earnings per share | $ | 0.04 | $ | (0.22 | ) |
Page | 4
AMENDED MANAGEMENT’S DISCUSSION AND ANALYSIS
December 31, 2020 and 2019
(Tabular
dollar amounts expressed in thousands, except per share
amounts)
Revenue
For the three months ended December 31, 2020, revenue totaled $22,755,000 an increase of $6,190,000 or 37%, compared to $16,565,000 for the three months ended December 31, 2019. The increase in revenues is primarily due to the acquisitions during the period December 1, 2019 through December 31, 2020 and 11% organic growth.
Inventory sold
For the three months ended December 31, 2020, inventory sold totaled $6,071,000 versus $4,595,000 for the three months ended December 31, 2019. The increase was primarily due to and commensurate with the growth in revenues.
Operating expenses
For the three months ended December 31, 2020, operating expenses were $11,529,000, an increase of $632,000 from $10,897,000 for the three months ended December 31, 2019. The increase was primarily due to the acquisitions during the period December 1, 2019 through December 31, 2020.
Depreciation expense
Depreciation expense decreased by $7,000 to $3,366,000 for the three months ended December 31, 2020. This was primarily due to the decline in gross rental equipment, as the Company gets more efficient in the deployment of its assets.
Interest expense
Total interest expense for the three months ended December 31, 2020 increased slightly to $486,000 in the three months ended December 31, 2020 from $457,000 for the three months ended December 31, 2019.
Change in fair value of derivative financial liabilities
The Company has three financial liabilities that are recorded at fair value through profit or loss. The debenture issued during 2019 is valued at fair value using the current trading price. The change in fair value for the debenture was a loss of $635,000 for the three months ended December 31, 2020 as compared to $553,000 for the three months ended December 31, 2019. Warrants issued with the June 2020 bought deal are valued using the Black-Scholes pricing model, which resulted in a loss of $348,000 for the three months ended December 31, 2020. The Company’s acquisition in October 2020, had a portion of the purchase price payable in shares at a later date. The acquisition consideration was recorded at the closing price on the date of the acquisition and was recorded as a liability. Prior to the issuance of the shares, the Company recorded the liability at the closing price at period end, which resulted in a loss of $108,000 for the three months ended December 31, 2020.
FINANCIAL POSITION
As at | As at | |||||||
December 31, 2020 | September 30, 2020 | |||||||
Cash | $ | 23,593 | $ | 29,227 | ||||
Accounts receivable, inventory and prepaid assets | 17,639 | 16,056 | ||||||
Property and equipment | 17,797 | 16,667 | ||||||
Other assets | 19,245 | 10,115 | ||||||
Total assets | $ | 78,274 | $ | 72,065 | ||||
Accounts payable and other current liabilities | $ | 23,494 | $ | 24,385 | ||||
Long term debt and other long-term liabilities | 21,494 | 19,445 | ||||||
Total Liabilities | 44,988 | 43,830 | ||||||
Shareholders’ equity | 33,286 | 28,235 | ||||||
Total liabilities and shareholders’ equity | $ | 78,274 | $ | 72,065 |
Liquidity
Management considers liquid assets to consist of cash and its line of credit availability. As of December 31, 2020, the Company had cash on hand of $23,593,000 and line of credit availability of $13,770,000. The Company’s approach in managing liquidity is to ensure, to the extent possible, that it will have enough liquidity to meet its liabilities when due by continuously monitoring actual and budgeted cash flows and monitoring financial market conditions for signs of weakness.
Page | 5
AMENDED MANAGEMENT’S DISCUSSION AND ANALYSIS
December 31, 2020 and 2019
(Tabular dollar amounts expressed in thousands, except per share amounts)
As of December 31, 2020, the Company faces no material liquidity risk and can meet all its current financial obligations as they become due and payable. The Company has $27,117,000 liabilities that are due within one year but has $41,232,000 of current assets to meet those obligations.
Capital management
The Company considers its capital to be shareholders’ equity, which is comprised of share capital, contributed surplus, and accumulated other comprehensive income and deficit, which totaled $33,286,000 at December 31, 2020, along with long-term debt, which totaled $21,494,000 at December 31, 2020.
The Company raises capital, as necessary, to meet its needs and take advantage of perceived opportunities and, therefore, does not have a numeric target for its capital structure. Funds are primarily secured through equity capital, convertible debentures raised by way of private placements, and debt instruments.
On June 29, 2020, the Company completed a bought deal public offering, a concurrent brokered private placement, and a non-brokered private placement to the Company’s Chief Executive Officer and a director of the Company, for a total of 27,678,826 units. Each unit issued was issued at a price of $1.15 for total gross proceeds of $31,831,000 and consisted of one common share and one-half of one common share purchase warrant (each whole warrant, a “Warrant”). The fair value of the Warrants is recorded as a liability and valued using the Black-Scholes pricing model. Upon exercise, the warrant liability will be derecognized and transferred to equity.
Management reviews its capital management approach on an ongoing basis and believes that this approach, given the relative size of the Company, is reasonable.
The Company invests all capital that is surplus to its immediate operational needs in short-term, liquid, and highly rated financial instruments, such as cash and short-term guarantee deposits, held with major Canadian and US financial institutions.
The Company had the following equity instruments outstanding at December 31, 2020 and September 30, 2020:
As at
December 31, 2020 (000’s) |
As at
September 30, 2020 (000’s) |
|||||||
Common shares | 28,217 | 28,069 | ||||||
Warrants | 13,724 | 13,839 | ||||||
Options | 10,534 | 10,506 | ||||||
Compensation options | 104 | 519 |
Financing
Historically and currently, the Company has financed its operations primarily from cash flow from operations, equipment loans, debentures, leases, equity financing, and through the issuance of shares to acquire businesses.
Debentures
On March 7, 2019, the Company issued $15,000,000 in 8.0% Convertible Unsecured Debentures due March 7, 2024. The debentures are convertible into common shares at $1.30/share. After three years, the Company could force conversion of the outstanding principal if the daily volume weighted average price of the common shares exceeds $1.62/share for twenty consecutive trading days. In connection with the new debt issued, the Company issued broker warrants to purchase 519,231 common shares. Each warrant entitles the holder to purchase one common share of the Company at a price of $1.30 until March 7, 2024.
Page | 6
AMENDED MANAGEMENT’S DISCUSSION AND ANALYSIS
December 31, 2020 and 2019
(Tabular dollar amounts expressed in thousands, except per share amounts)
Equipment Loans
The Company is offered financing arrangements from their suppliers and their suppliers designated financial institution, in which payments for certain invoices or products can be financed and paid over an extended period. The financial institution pays the supplier when the original invoice becomes due, and the Company pays the third-party financial institution over a period of time. In some cases, the supplier accepts a discounted amount from the financial institution and the Company repays the financial institution the face amount of the invoice with no stated interest, in twelve equal monthly installments. The Company uses a 6% incremental borrowing rate to impute interest on these arrangements. In other cases, the supplier receives the full invoice price and Company pays a stated interest rate to the financial institution, ranging from 5.6% to 8.0%, with the terms of the financing ranging from 12 to 48 months. Future payments on these liabilities are as follows:
Less than one year | $ | 4,290 | ||
Between 1 and 5 years | 282 | |||
Total | $ | 4,572 |
Lease Liabilities
The Company enters in lease for real estate and vehicles. Real estate leases are valued at the net present value of the future lease payments at an 8% incremental borrowing rate. Vehicle leases are recorded at rate implicit in the lease based on the current value and the estimated residual value of the vehicle, equating to rates ranging from 1.7% to 10.4%. Future payments on these liabilities are as follows:
Less than 1 year | $ | 2,528 | ||
Between 1 and 5 years | 4,345 | |||
More than five years | - | |||
Total | 6,873 | |||
Less: finance charges | (807 | ) | ||
Lease liabilities | 6,066 | |||
Current portion of lease liabilities | (2,362 | ) | ||
Long-term portion of lease liabilities | $ | 3,704 |
Revolving Credit Facility
In September 2020, the Company entered a $20,000,000 asset-based revolving credit facility with a US bank. The facility matures in September 2024 and bears interest at floating rate of LIBOR plus 2.0% to 2.5%, with a LIBOR floor of 0.5% and has an unused fee of 0.3%. The facility is subject to a borrowing base based on a percentage of eligible accounts receivable and customer rental contracts, which totaled $13,770,000 as of December 31, 2020.
Contingencies
The Company has been in litigation with Lightwater Long Short Fund (“Lightwater”) for the years ended September 30, 2020 and 2019. The litigation is due to Lightwater claiming damages for matters related to subscription agreements in a prior private placement. Management and legal believe that this lawsuit is without merit and is unpredictable. It is uncertain currently to determine the outcome of this lawsuit or our potential liability, if any.
A second matter has reached a settlement in principle during the year ended September 30, 2020 of $475,000, but has not been formally finalized, and is recorded in accrued liabilities on the balance sheet.
From time to time, the Company is involved in various legal proceedings arising from the ordinary course of business. None of the matters in which the Company is currently involved, either individually or in the aggregate, is expected to have a material adverse effect on the Company’s consolidated financial position, results of operations, or cash flows.
Quarterly operating results from continuing operations
Quarter ended
Dec. 31, 2020 |
Quarter ended
Sep. 30, 2020 |
Quarter ended
Jun. 30,2020 |
Quarter ended
Mar. 31, 2020 |
|||||||||||||
Revenue | $ | 22,755 | $ | 18,822 | $ | 18,624 | $ | 17,942 | ||||||||
Net income (loss) from continuing operations | 1,366 | (1,963 | ) | (2,646 | ) | 1,158 | ||||||||||
Net income (loss) per share – continuing operations | 0.05 | (0.02 | ) | (0.03 | ) | 0.01 | ||||||||||
Total assets | $ | 78,274 | $ | 72,065 | $ | 71,302 | $ | 45,641 |
Quarter ended
Dec. 31, 2019 |
Quarter ended
Sep. 30, 2019 |
Quarter ended
Jun. 30,2019 |
Quarter ended
Mar. 31, 2019 |
|||||||||||||
Revenue | $ | 16,565 | $ | 14,701 | $ | 15,073 | $ | 15,671 | ||||||||
Net income (loss) from continuing operations | (3,778 | ) | 3,322 | (9,392 | ) | (445 | ) | |||||||||
Net income (loss) per share – continuing operations | (0.22 | ) | 0.04 | (0.11 | ) | (0.01 | ) | |||||||||
Total assets | $ | 49,105 | $ | 41,628 | $ | 38,674 | $ | 52,475 |
Results of operations for the healthcare services market in which the Company operates show little seasonality from quarter to quarter. The increase in revenues from the past year is primarily due to the Company’s acquisitions during the year ended September 30, 2020 and the three months ended December 31, 2020.
Page | 7
AMENDED MANAGEMENT’S DISCUSSION AND ANALYSIS
December 31, 2020 and 2019
(Tabular dollar amounts expressed in thousands, except per share amounts)
Related party transactions
The Company has six market rate leases for office, warehouse, and retail space with a rental Company affiliated with the Company’s Chief Executive Officer, the majority of which were entered into in 2015. The leases have a combined area of 74,520 square feet. Lease payments under these leases are approximately $52,000 per month, plus taxes, utilities, and maintenance.
Expense for Board of Directors’ fees was $45,000 and $43,000 or the three months ended December 31, 2020 and 2019, respectively. Stock based compensation for the Board of Directors’ was $4,000 for the three months ended December 31, 2020.
Key management personnel also participate in the Company’s share option program (see Note 8). The Company paid or accrued compensation to key management personnel the following:
Three months ended
December 31, 2020 |
Three months ended
December 31, 2019 |
|||||||
Salaries and Benefits | $ | 227 | $ | 196 | ||||
Stock-based compensation (Note 13) | - | - | ||||||
Total | $ | 227 | $ | 196 |
Off balance sheet arrangements
The Company has no material undisclosed off-balance sheet arrangements that have or are reasonably likely to have, a current or future effect on its results of operations or financial condition.
ACCOUNTING AND DISCLOSURE MATTERS
Financial reporting controls
The Company is not required to certify the design and evaluation of its disclosure controls and procedures and internal controls over financial reporting and has not completed such an evaluation.
There were no substantive changes in the Company’ s disclosure controls and procedures and internal controls over financial reporting during the period ended December 31, 2020 that have materially affected, or are reasonably likely to materially affect, the Company’ s disclosure controls and procedures and internal controls over financial reporting.
Critical accounting estimates
The preparation of financial statements in conformity with IFRS requires management to make certain estimates, judgments, and assumptions concerning the future. The Company’s management reviews these estimates, judgments, and assumptions on an ongoing basis, based on experience and other factors, including expectations of future events that are believed to be reasonable under the circumstances. Revisions to estimates are adjusted prospectively in the period in which the estimates are revised.
Estimates where management has made subjective judgments and where there is significant risk of material adjustments to assets and liabilities in future accounting periods include fair value measurements for financial instruments and share-based transactions, useful lives and impairment of non-financial assets (property and equipment and intangible assets), provision for expected credit losses, fair value measurements for assets and liabilities acquired in business acquisition, and calculation of deferred taxes.
Revenue recognition
Revenues are billed to and collections are received from both third-party insurers and patients. Because of continuing changes in the health care industry and third-party reimbursement, the consideration receivable from these insurance companies is variable as these billings can be challenged by the payer. Therefore, the amount billed by the Company is reduced by an estimate of the amount that the Company believes is an allowable charge to be ultimately allowed by the insurance contract. The above estimate involves significant judgment including an analysis of past collections and historical modification rates. Management regularly reviews the actual claims approved by the insurance companies, adjusting as required.
Page | 8
AMENDED MANAGEMENT’S DISCUSSION AND ANALYSIS
December 31, 2020 and 2019
(Tabular dollar amounts expressed in thousands, except per share amounts)
Valuation of accounts receivable
The measurement of expected credit losses considers information about past events and current conditions. Forward looking macro-economic factors are incorporated into the risk parameters, such as unemployment rates, inflation, and interest rates. Significant judgments are made in order to incorporate forward-looking information into the estimation of allowances and may result in changes to the provision from period to period which may significantly affect our results of operations.
The Company estimates that a certain portion of receivables from customers may not be collected and maintains an allowance for doubtful accounts. The Company evaluates the net realizable value of accounts receivable as of the date of the consolidated balance sheets. Specifically, the Company considers historical realization data, including current and historical cash collections, accounts receivable aging trends, other operating trends, and relevant business conditions. Because of continuing changes in the health care industry and third-party reimbursement, it is possible that the estimates could change, which could have a material impact on the operations and cash flows. If circumstances related to certain customers change or actual results differ from expectations, our estimate of the recoverability of receivables could fluctuate from that provided for in our consolidated financial statements. A change in estimate could impact bad debt expense and accounts receivable.
Business combinations
In accordance with IFRS 3 – Business Combination (“IFRS 3”), a transaction is recorded as a business combination if the significant assets, liabilities, or activities in addition to property and related mortgage debt assumed constitute a business. A business is defined as an integrated set of activities and assets, capable of being conducted and managed for the purpose of providing a return, lower costs, or other economic benefits. Where there are no such integrated activities, the transaction is treated as an asset acquisition. The estimation of the fair value of the assets and liabilities acquired in an acquisition is subject to judgement concerning estimating market values and predicting future events. These values are uncertain and can materially impact the carrying value of the acquired assets and the amount allocated to goodwill.
Lease liabilities
Estimate of lease term
When the Company recognizes a lease, it assesses the lease term based on the conditions of the lease and determines whether it will extend the lease at the end of the lease contract or exercise an early termination option. As it is not reasonably certain that the extension or early termination options will be exercised, the Company determined that the term of its leases are the lesser of original lease term or the life of the leased asset. This significant estimate could affect future results if the Company extends the lease or exercises an early termination option.
Incremental borrowing rate
When the Company recognizes a lease, the future lease payments are discounted using the Company’s incremental borrowing rate. This significant estimate impacts the carrying amount of the lease liabilities and the interest expense recorded on the consolidated statement of loss and comprehensive loss.
Significant accounting judgments
The following are the critical judgments, apart from those involving estimations, that have been made in the process of applying the Company's accounting policies and that have the most significant effect on the amounts recognized in the consolidated financial statements.
Functional currency
The consolidated financial statements of the Company are presented in US dollars, which is the Company’s functional currency. Determined using management’s judgment that the primary economic environment in which it will derive its revenue and expenses incurred to generate those revenues is the United States. Management has exercised judgment in selecting the functional currency of each of the entities that it consolidates based on the primary economic environment in which the entity operates and in reference to the various indicators including the currency that primarily influences or determines the selling prices of goods and services and the cost of production, including labor, material and other costs and the currency whose competitive forces and regulations mainly determine selling prices.
Business combinations
In accordance with IFRS 3 – Business Combination (“IFRS 3”), a transaction is recorded as a business combination if the significant assets, liabilities, or activities in addition to property and related mortgage debt assumed constitute a business. A business is defined as an integrated set of activities and assets, capable of being conducted and managed for the purpose of providing a return, lower costs, or other economic benefits. Where there are no such integrated activities, the transaction is treated as an asset acquisition. The estimation of the fair value of the assets and liabilities acquired in an acquisition is subject to judgement concerning estimating market values and predicting future events. These values are uncertain and can materially impact the carrying value of the acquired assets and the amount allocated to goodwill.
Page | 9
AMENDED MANAGEMENT’S DISCUSSION AND ANALYSIS
December 31, 2020 and 2019
(Tabular dollar amounts expressed in thousands, except per share amounts)
FINANCIAL INSTRUMENTS AND RISK MANAGEMENT
Financial instrument risk exposure
The Company’ s activities expose it to a variety of financial risks: market risk (including price risk, currency risk and interest rate risk), credit risk and liquidity risk. These risks arise from the normal course of operations and all transactions are undertaken to support the Company’ s ability to continue as a going concern. Risk management is carried out by management under policies approved by the Board of Directors. Management identifies and evaluates the financial risks in co-operation with the Company’s operating units. The Company’ s overall risk management program seeks to minimize potential adverse effects on the Company’s financial performance.
Credit risk
Credit risk is the risk that one party to a financial instrument will fail to discharge an obligation and cause the other party to incur a financial loss. Financial instruments that potentially subject the Company to credit risk are primarily cash and accounts receivable. Each subsidiary places its cash with one major financial institution. At times, the cash in the financial institution is temporarily in excess of the amount insured by the Federal Deposit Insurance Corporation. Substantially all accounts receivables are due under fee-for-service contracts from third party payors, such as insurance companies and government-sponsored healthcare programs, directly from patients or for rebates due from manufacturers. Receivables generally are collected within industry norms for third-party payors and from manufacturers. The Company continuously monitors collections from its clients and maintains an allowance for bad debts based upon any specific payor collection issues that are identified and historical experience.
The Company recorded bad debt expense of $2,079,000 and $2,704,000 for the three months ended December 31, 2020 and 2019, respectively. As of December 31, 2020, no one customer represented more than 10% of outstanding accounts receivable. The Company does have more than 9% of receivables through Medicare. As this is a Federal program there is very little credit risk associated with these balances.
Currency risk
Currency risk is the risk that the Company will be subject to foreign currency fluctuations in satisfying obligations denominated in foreign currencies. All of the Company’s sales and inventory sold and most all of the Company’s operating expenses are in US dollars. The Company’s debentures, derivative warrant liability, purchase price payables in shares, and common shares are denominated in Canadian dollars. Cash is maintained in both US dollars. Consequently, the Company is exposed to foreign exchange fluctuations.
The Company’s objective in managing its foreign currency risk is to minimize its net exposures to foreign currency cash flows by holding most of its cash in US dollars. The Company monitors foreign currency exposures and from time to time could authorize the use of derivative financial instruments such as forward foreign exchange contracts to economically hedge a portion of foreign currency fluctuations.
Based on the above net exposure at the three months ended December 31, 2020, depreciation, or appreciation of the US dollar against the Canadian dollar could result in a significant effect on net loss. The Company has not employed any currency hedging programs.
Liquidity risk
Liquidity risk is the risk that the Company will not be able to meet its financial obligations as they become due. The Company’s approach in managing liquidity is to ensure, to the extent possible, that it will have enough liquidity to meet its liabilities when due, under both normal conditions, by continuously monitoring actual and budgeted cash flows.
As of December 31, 2020, the Company faces no material liquidity risk and can meet all its current financial obligations as they become due and payable. The Company has $23,494,000 of liabilities that are due within one year. The Company has $41,232,000 of current assets to meet those obligations.
Interest rate risk
Interest rate risk is the risk that the future cash flows of a financial instrument will fluctuate because of changes in market interest rates. Interest rate risk is limited to potential decreases on the interest rate offered on cash held with US and Canadian financial institutions. The Company considers this risk to be immaterial. The interest on the Company’s debt is not subject to cash flow interest rate risk as these instruments bear interest at fixed rates. The Company’s revolving line of credit has a floating rate, but the Company does not borrow significant amounts on this line.
Page | 10
AMENDED MANAGEMENT’S DISCUSSION AND ANALYSIS
December 31, 2020 and 2019
(Tabular dollar amounts expressed in thousands,
except per share
amounts)
RISK FACTORS
While it is impossible to identify all such risk factors, factors that could cause actual results to differ materially from those estimated by us include:
Market Price of the Company Shares
The Company Shares are listed and posted for trading on the TSX Venture Exchange. Securities of small-cap and healthcare companies have experienced substantial volatility in the past, often based on factors unrelated to the financial performance or prospects of the companies involved. These factors include macroeconomic developments in North America and globally, and market perceptions of the attractiveness of particular industries. The price of the Company Shares is also likely to be significantly affected by short-term changes in cost of goods, or in financial condition or results of operations. Other factors unrelated to the performance of the Company that may have an effect on the price of the Company Shares include the following: the extent of analytical coverage available to investors concerning the business of the Company may be limited if investment banks with research capabilities do not follow the Company securities; lessening in trading volume and general market interest in the Company’s securities may affect an investor’s ability to trade significant numbers of the Company Shares; the size of the Company’s public float may limit the ability of some institutions to invest in the Company’s securities; and a substantial decline in the price of the Company Shares that persists for a significant period of time could cause the Company’s securities, if listed on an exchange, to be delisted from such exchange, further reducing market liquidity.
As a result of any of these factors, the market price of the Company Shares at any given point in time may not accurately reflect the long-term value of the Company. Securities class-action litigation often has been brought against companies following periods of volatility in the market price of their securities. The Company may in the future be the target of similar litigation. Securities litigation could result in substantial costs and damages and divert management’s attention and resources.
Dilution
The Company will require additional funds in respect of the further development of the company through acquisition. If the Company raises funds by issuing additional equity securities, such financing will dilute the equity interests of its shareholders.
Future Sales of Shares by Existing Shareholders
Sales of the Company Shares in the public markets, or the potential for such sales, could decrease the trading price of the Company Shares and could impair The Company’s ability to raise capital through future sales of the Company Shares. The Company may from time to time have previously issued securities at an effective price per share which will be lower than the market price of the Company Shares. Accordingly, certain shareholders of The Company may have an investment profit in the Company Shares that they may seek to liquidate.
Limited History of Operations
The Company has a limited history of operations. There can be no assurance that the business of the Company will be successful and generate, or maintain, any profit.
Reimbursement Rates May Decline / Competitive Bid
Reimbursement for services to be provided by the Company come primarily from Medicare and private health insurance companies. The reimbursement rates offered are outside the control of the Company. Reimbursement rates for much of the US health care market have been subject to continual reductions as health insurers and governmental entities attempt to control health care costs. The extent and timing of any reduction in reimbursement rates cannot be predicted by the Company.
Specifically, the Centers for Medicare & Medicaid Services (“CMS”) oversees a competitive bidding program covering durable medical equipment (“DME”), the process in which a Medicare supplier provides DME products to Medicare beneficiaries. It is possible that the Company may not be selected in some or all the Competitive Bidding Area (“CBA”) and/or product categories if and when the next competitive bidding process occurs. Non-selection for CBA and/or product category may result in loss of revenue and referral sources.
Reductions in reimbursement rates can have a material impact on the profitability of the Company’s operations. A reduction in reimbursement may be unrelated to any concurrent decline in the cost of operations, thereby resulting in reduced profitability. The Company’s costs of operations could increase, but the cost increases may not be passed on to customers because reimbursement rates are set without regard to the cost of service.
Page | 11
AMENDED MANAGEMENT’S DISCUSSION AND ANALYSIS
December 31, 2020 and 2019
(Tabular dollar amounts expressed in thousands,
except per share
amounts)
Dependence Upon Relationships with Key Suppliers
There are few manufacturers of equipment for certain of the Company’s products. This presents risks that suppliers may not be able to provide equipment to satisfy demand. Demand may outstrip supply, leading to equipment shortages. Conversely, incorrect demand forecasting could lead to excess inventory. If the Company fails to achieve certain volume of sales, prices of inventory may increase. The industry is subject to a high level of regulatory scrutiny, and government or manufacturer recalls could adversely affect the Company’s ability to achieve revenue targets. Inadequate supply could impair the Company’s ability to attract new business and could create upward pricing pressure on equipment and supplies, adversely affecting margins for the Company.
Reliance Upon Few Payors
The Company will earn revenues by seeking reimbursement from Medicare and private health insurance companies, with the Medicare program of the US government being the largest entity making payments. If the Medicare program were to slow payments of receivables for any reason, the Company would be adversely impacted. In addition, both governmental and private health insurance companies may seek ways to avoid or delay reimbursement, which could adversely affect cash flow and revenues for the Company.
Government Regulation
Some operations of the Company will require certain licenses and permits from the authorities in the United States. The ability of the Company and its subsidiaries to obtain, sustain, or renew any such licenses and permits on acceptable terms is subject to changes in regulations and policies and to the discretion of the applicable authorities or other governmental agencies. The ability of the Company to collect certain revenues in the future will depend on the Company receiving approval of an independent diagnostic testing facility and entering into an agreement with Medicare. There is no guarantee that the Company will meet these conditions. The Company will be subject to regulation from United States federal and state authorities. Regulatory action could disrupt its ability to provide services. Such regulatory action could come in the form of actions against manufacturers, unrelated to the Company’s conduct, or actions based upon the Company’s operation. Regulatory action could prevent or delay reimbursement for certain services.
There could also be legislative action that could adversely affect the Company’s business model, including, without limitation: a decision by the United States government to become the exclusive provider of health care services at some time in the future; changes in United States federal or state laws, rules, and regulations, including those governing the corporate practice of medicine, and fee splitting; and changes in the United States Anti-Kickback Statute and Stark Law and/or similar state laws, rules, and regulations. Conversely, budgetary problems in the United States could lead to reduced funding, substantial modification, or elimination of Medicare programs, which would end reimbursement for many patients. There can be no assurance that new rules and regulations will not be enacted or that existing rules and regulations will not be applied in a manner which could limit or curtail the business of the Company. Amendments to current laws and regulations could have a substantial adverse impact on the Company.
Highly Competitive Market
The Company will participate in a highly competitive market, which may become more competitive as new players enter. Certain competitors will be subsidiaries or divisions of larger, much better capitalized companies. Certain competitors will have vertically integrated manufacturing and services sectors of the market. The Company may have less capital and may encounter greater operational challenges in serving the market. Better capitalized competitors may also be expected to borrow money or raise debt to purchase equipment more easily than the Company.
Foreign Subsidiaries
The Company plans to conduct all its operations through respective United States subsidiaries. Therefore, to the extent of these holdings, the Company (directly and indirectly) will be dependent on the cash flows of these subsidiaries to meet its obligations. The ability of such subsidiaries to make payments to their parent companies may be constrained by the following factors: the level of taxation, particularly corporate profits and withholding taxes, in the jurisdiction in which each subsidiary operates; and the introduction of exchange controls or repatriation restrictions or the availability of hard currency to be repatriated.
Page | 12
AMENDED MANAGEMENT’S DISCUSSION AND ANALYSIS
December 31, 2020 and 2019
(Tabular dollar amounts expressed in thousands,
except per share
amounts)
Attraction and Retention of Key Personnel Including Directors
The Company will have a small management team and the loss of a key individual or inability to attract suitably qualified staff could have a material adverse impact on the business of The Company. The Company may also encounter difficulties in obtaining and maintaining suitably qualified staff. The success of The Company depends on the ability of management to interpret market data correctly and to interpret and respond to economic, market and other conditions to locate and adopt appropriate opportunities. No assurance can be given that individuals with the required skills will continue employment with The Company or that replacement personnel with comparable skills can be found. The Company will be dependent on the services of key executives, including the directors of The Company and a small number of highly skilled and experienced executives and personnel. Due to the relatively small size of The Company, the loss of these persons or The Company’s inability to attract and retain additional highly skilled employees may adversely affect its business and future operations.
Dividends
The Company currently intends to retain future earnings to finance the operation, development, and expansion of its business. The Company does not anticipate paying cash dividends on the Company Shares in the foreseeable future. Payment of future cash dividends, if any, will be at the discretion of the Company Board and will depend on the Company’s financial condition, results of operations, contractual restrictions, capital requirements, business prospects and other factors that the Company Board may consider relevant. Accordingly, investors will only see a return on their investment if the value of the Company Shares appreciates.
Discretion in the Use of Available Funds
Management will have broad discretion concerning the use of the available funds of the Company as well as the timing of their expenditures. As a result, shareholders and investors will be relying on the judgment of management of the Company on completion of the Arrangement for the application of the available funds of the Company (see “Available Funds and Principal Purposes” above). Management may use the available funds in ways that an investor may not consider desirable. The results and the effectiveness of the application of the available funds are uncertain. If the available funds are not applied effectively, the Company’s results of operations may suffer.
Potential Conflicts of Interest
Some of the directors and officers of the Company are engaged and will continue to be engaged as directors and officers of other companies in the search for additional business opportunities on behalf of such other corporations, and situations may arise where these directors and officers will be in direct competition with the Company. Some of the directors and officers of the Company are or may become directors or officers of other companies engaged in other business ventures.
Conflicts of interest, if any, which arise may be subject to and be governed by procedures prescribed by the Business Corporations Act (British Columbia) which require a director or officer of a corporation who is a party to or is a director or an officer of or has a material interest in any person who is a party to a material contract or proposed material contract with The Company to disclose his interest and to refrain from voting on any matter in respect of such contract unless otherwise permitted under the Business Corporations Act (British Columbia). Any decision made by any of such directors and officers involving the Company should be made in accordance with their duties and obligations to deal fairly and in good faith with a view to the best interests of the Company and its shareholders.
Insurance and Uninsured Risks
The Company’s business will continue to be subject to several risks and hazards generally, including general liability. Such occurrences could result in damage to property, inventory, facilities, personal injury or death, damage to the properties of the Company, or the properties of others, monetary losses, and possible legal liability. The Company may be subject to product liability and medical malpractice claims, which may adversely affect its operations. The Company’s industry is highly regulated, and the Company may be subject to regulatory scrutiny for violations of regulations and laws. The Company could be adversely affected by the time and cost involved with regulatory investigations even if it has operated in compliance with all laws. Investigations could also adversely affect the timely payment of receivables.
Although the Company will maintain insurance to protect against certain risks in such amounts as it considers to be reasonable, its insurance will not cover all the potential risks associated with its operations. The Company may also be unable to maintain insurance to cover these risks at economically feasible premiums. Insurance coverage may not continue to be available or may not be adequate to cover any resulting liability. The Company might also become subject to liability which may not be insured against or which the Company may elect not to insure against because of premium costs or other reasons. Losses from these events may cause the Company to incur significant costs that could have a material adverse effect upon its financial performance and results of operations.
Page | 13
AMENDED MANAGEMENT’S DISCUSSION AND ANALYSIS
December 31, 2020 and 2019
(Tabular dollar amounts expressed in thousands,
except per share
amounts)
Additional Capital
The development and the business (including acquisitions) of the Company may require additional financing, which may involve high transaction costs, dilution to shareholders, high interest rates or unfavorable terms and conditions. Failure to obtain sufficient financing may result in the delay or indefinite postponement of its business plans. As the Company will likely be unable to obtain traditional debt financing until it has a profitable and longer operating history, the initial primary source of funding available to the Company will consist of equity financing. There can be no assurance that additional capital or other types of financing will be available if needed or that, if available, the terms of such financing will be favorable to the Company.
Loss of Foreign Private Issuer Status
The Company may lose its foreign private issuer status in the future, which could result in significant additional costs and expenses. As a foreign private issuer, as defined in Rule 3b-4 under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), the Company is currently exempt from certain of the provisions of the U.S. federal securities laws. For example, an issuer with total assets in excess of US$10 million and whose outstanding equity securities are held by 2,000 or more persons, or 500 or more persons who are not “accredited investors”, must register such securities as a class under the Exchange Act. However, as a foreign private issuer subject to Canadian continuous disclosure requirements, the Company may claim the exemption from registration under the Exchange Act provided by Rule threeg3-2(b) thereunder, even if these thresholds are exceeded. To be considered a foreign private issuer, The Company must satisfy a United States shareholder test (not more than 50% of the voting securities of a company must be held by residents of the United States) if any of the following disqualifying conditions apply: (i) the majority of the Company’s executive officers or directors are United States citizens or residents; (ii) more than 50 percent of The Company’s assets are located in the United States; or (iii) The Company’s business is administered principally in the United States. Based on information available as at the date hereof, approximately 26.7% of the Company’s outstanding voting securities are anticipated to be directly or indirectly held of record by residents of the United States. If the Company loses its status as a foreign private issuer, these regulations could apply and it could also be required to commence reporting on forms required of U.S. domestic companies, such as Forms 10-K, 10-Q and 8-K. It could also become subject to U.S. proxy rules, and certain holders of its equity securities could become subject to the insider reporting and “short swing” profit rules under Section 16 of the Exchange Act. In addition, any securities issued by the Company if it loses foreign private issuer status would become subject to certain rules and restrictions under the Securities Act of 1933, as amended, even if they are issued or resold outside the United States. Compliance with the additional disclosure, compliance and timing requirements under these securities laws would likely result in increased expenses and would require the Company’s management to devote substantial time and resources to comply with new regulatory requirements.
United States Operations and Exchange Rate Fluctuations
All the Company’s revenue generating operations will occur in the United States. The Company will be subject to several risks associated with its operations that may increase liability and costs and require significant management attention. These risks include:
· | compliance with laws of the United States that will apply to the Company’s United States operations, including lawful access, privacy laws and anti-corruption laws |
· | instability in economic or political conditions, including inflation, recession, and political uncertainty |
· | potential adverse tax consequences; and |
· | litigation in United States courts. |
In addition, the Company will be exposed to foreign exchange risk as a result of all of its revenue-generating operations taking place in the United States and thus, revenues and expenses being earned and paid in US dollars while having a significant amount of debt denominated in Canadian dollars. If the Canadian dollar appreciates relative to the US dollar, the Company’s Canadian dollar liabilities decrease when translated to US dollars for financial reporting purposes. Conversely, if the Canadian dollar depreciates relative to the US dollar, the Company’s Canadian dollar liabilities will increase when translated to US dollars for financial reporting purposes.
The Company expects to continue to maintain cash balances in both United States and Canadian dollars, but management anticipates that it will not purchase any securities or financial instruments to speculate on or hedge against a rise or fall in the value of the United States dollar.
COVID-19 Pandemic
On March 11, 2020, the World Health Organization declared the outbreak of a novel strain of coronavirus (“COVID-19”) a global pandemic. In response to the outbreak, governmental authorities in the United States and internationally have introduced various recommendations and measures to try to limit the pandemic, including travel restrictions, border closures, non-essential business closures, quarantines, self-isolations, shelters-in-place, and social distancing. The COVID-19 outbreak and the response of governmental authorities to try to limit it are having a significant impact on the private sector and individuals, including unprecedented business, employment, and economic disruptions.
Page | 14
AMENDED MANAGEMENT’S DISCUSSION AND ANALYSIS
December 31, 2020 and 2019
(Tabular dollar amounts expressed in thousands,
except per share
amounts)
Although the Company has taken steps to mitigate the impact of COVID-19, the continued presence and spread of COVID-19 nationally and globally could have a material adverse impact on the Company’s business, operations, and financial results and position, including through employee attrition, disruptions to the Company’s supply chains and sales channels, restrictions of operations at our retail stores, changes in the number of Americans with health insurance resulting in a change in demand for the Company’s products, as well as a deterioration of general economic conditions including a possible national or global recession. Due to the speed with which the COVID-19 situation is developing and the uncertainty of its magnitude, outcome, and duration, it is not possible to estimate its impact on the Company’s business, operations, financial results and position or prospects at this time.
The Company continues to monitor the situation and work with its stakeholders (including customers, employees, and suppliers) in order to assess further possible implications to its business, supply chain, and customers, and, where practicable, mitigate adverse consequences and responsibly address this global pandemic.
The actual and threatened spread of COVID-19 globally could adversely affect global economies and financial markets, resulting in a prolonged economic downturn and a decline in the value of the Company’s share price. The extent to which COVID-19 (or any other disease, epidemic, or pandemic) impacts business activity or financial results, and the duration of any such negative impact, will depend on future developments, which are highly uncertain and cannot be predicted, including new information which may emerge concerning COVID-19 and the actions required to contain or treat its impact, among others.
Page | 15
Exhibit 99.116
Notice to Reader
As described in Note 19, the Company identified certain errors and adjustments, as set out below:
For comparative purposes, the consolidated statements of financial position as at September 30, 2020, and the statements of income (loss) and comprehensive income (loss) and statement of cash flows for the three months ended December 31, 2019, that were included in the previously filed condensed consolidated interim financial statements as at and for the period ended December 31, 2020, have been adjusted for the following:
● | Change in accounting policy resulting from the change in presentation currency to the US dollar. | |
● | Recognition and measurement of assets, liabilities, and consideration relating to business acquisitions, that were previously reported in the comparative period. |
Recognition and measurement of assets, liabilities, and consideration relating to a business acquisition, that was previously reported in the previously filed condensed consolidated interim financial statements as at and for the three months ended December 31, 2020 have been adjusted.
Accordingly, the previously filed condensed consolidated interim financial statements as at and for the three months ended December 31, 2020 have been withdrawn and are refiled dated May 13, 2021.
Quipt Home Medical Corp.
(formerly, Protech Home Medical Corp.)
Amended and Restated
Condensed Consolidated Interim Financial Statements
2021 First Quarter
For the Three Months Ended
December 31, 2020 and 2019
(UNAUDITED)
(Expressed in US dollars)
TABLE OF CONTENTS
Amended and Restated Condensed Consolidated Interim Statements of Financial Position | Page 2 |
Amended and Restated Condensed Consolidated Interim Statements of Income (Loss) and Comprehensive Income (Loss) | Page 3 |
Amended and Restated Condensed Consolidated Interim Statements of Changes in Shareholders’ Equity | Page 4 |
Amended and Restated Condensed Consolidated Interim Statements of Cash Flows | Page 5 |
Notes to the Amended and Restated Condensed Consolidated Interim Financial Statements | Pages 6-26 |
Quipt HOME MEDICAL CORP. (formerly, Protech Home Medical Corp.)
AMENDED AND RESTATED CONDENSED CONSOLIDATED INTERIM STATEMENTS OF FINANCIAL POSITION
(UNAUDITED)
(Expressed in thousands of US Dollars, except per share amounts)
Notes |
As
at
|
As at
September 30,
|
As at October 1,
2019 |
|||||||||||||
ASSETS | ||||||||||||||||
Current Assets | ||||||||||||||||
Cash | $ | 23,593 | $ | 29,227 | $ | 9,708 | ||||||||||
Accounts receivable, net | 4 | 9,055 | 9,089 | 9,357 | ||||||||||||
Inventory | 5 | 8,122 | 6,415 | 3,578 | ||||||||||||
Prepaid and other current assets | 462 | 552 | 604 | |||||||||||||
Total current assets | 41,232 | 45,283 | 23,247 | |||||||||||||
Long-term assets | ||||||||||||||||
Property, equipment, and right of use assets, net | 6 | 17,797 | 16,667 | 14,723 | ||||||||||||
Goodwill | 7 | 7,962 | 3,895 | 1,420 | ||||||||||||
Intangible assets, net | 7 | 10,674 | 5,579 | 2,198 | ||||||||||||
Deferred financing costs | 11 | 522 | 556 | - | ||||||||||||
Deposits | 87 | 85 | 71 | |||||||||||||
Total long-term assets | 37,042 | 26,782 | 18,412 | |||||||||||||
TOTAL ASSETS | $ | 78,274 | $ | 72,065 | $ | 41,659 | ||||||||||
LIABILITIES | ||||||||||||||||
Current Liabilities | ||||||||||||||||
Accounts payable | $ | 7,497 | $ | 7,434 | $ | 6,134 | ||||||||||
Current portion of equipment loans | 11 | 4,290 | 4,311 | 6,176 | ||||||||||||
Current portion of leases | 11 | 2,362 | 2,037 | 421 | ||||||||||||
Accrued liabilities | 18 | 2,122 | 3,488 | 1,750 | ||||||||||||
Government grant | 8 | 1,891 | 2,599 | - | ||||||||||||
Deferred revenue | 9 | 1,904 | 1,804 | 1,438 | ||||||||||||
Purchase price payable | 3 | 1,166 | 857 | - | ||||||||||||
Derivative warrant liability | 10 | 2,262 | 1,855 | - | ||||||||||||
Total current liabilities | 23,494 | 24,385 | 15,919 | |||||||||||||
Long-Term Liabilities | ||||||||||||||||
Debentures | 11 | 14,193 | 12,930 | 10,547 | ||||||||||||
Equipment loans | 11 | 282 | 439 | 1,130 | ||||||||||||
Lease liabilities | 11 | 3,704 | 3,230 | 1,040 | ||||||||||||
Government grant | 8 | 2,994 | 2,286 | - | ||||||||||||
Long-term purchase price payable | 3 | 321 | 560 | - | ||||||||||||
TOTAL LIABILITIES | 44,988 | 43,830 | 28,636 | |||||||||||||
SHAREHOLDERS' EQUITY | ||||||||||||||||
Share capital | 12 | 172,190 | 171,405 | 151,963 | ||||||||||||
Contributed surplus | 16,782 | 16,915 | 16,177 | |||||||||||||
Shares to be issued | 12 | 3,033 | - | - | ||||||||||||
Accumulated deficit | (158,719 | ) | (160,085 | ) | (155,117 | ) | ||||||||||
TOTAL SHAREHOLDERS’ EQUITY | 33,286 | 28,235 | 13,023 | |||||||||||||
TOTAL LIABILITIES AND EQUITY | $ | 78,274 | $ | 72,065 | $ | 41,659 |
APPROVED ON BEHALF OF THE BOARD:
signed “Donald Ewing” | signed “Mark Greenberg” |
The accompanying notes are an integral part of these consolidated financial statements | Page | 2 |
QUIPT HOME MEDICAL CORP. (Formerly, PROTECH HOME MEDICAL CORP.)
AMENDED AND RESTATED CONDENSED CONSOLIDATED INTERIM STATEMENTS OF INCOME (LOSS) AND COMPREHENSIVE INCOME (LOSS) (UNAUDITED)
(Expressed in thousands of US Dollars, except per share amounts)
Notes |
Three Months
Ended, December 31, 2020 |
Three Months
Ended, December 31, 2019 |
||||||||||
Revenue | ||||||||||||
Sales of medical equipment and supplies | $ | 10,402 | $ | 7,097 | ||||||||
Rentals of medical equipment | 12,353 | 9,468 | ||||||||||
Total revenue | 22,755 | 16,565 | ||||||||||
Inventory sold | 6,071 | 4,595 | ||||||||||
Operating expenses | 14 | 11,529 | 10,897 | |||||||||
Depreciation | 6 | 3,366 | 3,373 | |||||||||
Amortization of intangible assets | 7 | 315 | 195 | |||||||||
Stock-based compensation | 12 | 15 | 32 | |||||||||
Acquisition-related costs | 3 | 56 | - | |||||||||
Gain on disposals of property and equipment | (27 | ) | (60 | ) | ||||||||
Other income | - | (107 | ) | |||||||||
Income (loss) from continuing operations before financing and taxes | 1,430 | (2,360 | ) | |||||||||
Financing expenses | ||||||||||||
Interest expense on convertible debenture | 11 | 230 | 227 | |||||||||
Interest expense on leases | 11 | 125 | 118 | |||||||||
Interest expense on loans | 11 | 85 | 112 | |||||||||
Credit facility fees | 11 | 12 | - | |||||||||
Amortization of financing costs | 11 | 34 | - | |||||||||
Loss on foreign currency transactions | 2 | 408 | ||||||||||
Loss on fair value of derivative warrant liability | 10 | 348 | - | |||||||||
Loss on fair value of convertible debentures | 11 | 635 | 553 | |||||||||
Income (loss) from continuing operations before taxes | (41 | ) | (3,778 | ) | ||||||||
(Recovery of) provision for income taxes | (1,407 | ) | - | |||||||||
Income (loss) from continuing operations | 1,366 | (3,778 | ) | |||||||||
Discontinued operations: | ||||||||||||
Income (loss) from discontinued operations | 17 | - | (860 | ) | ||||||||
Net income (loss) and comprehensive income (loss) | $ | 1,366 | $ | (4,638 | ) | |||||||
Net income (loss) per share (Note 16) | ||||||||||||
Basic earnings per share | $ | 0.05 | $ | (0.22 | ) | |||||||
Diluted earnings per share | $ | 0.04 | $ | (0.22 | ) | |||||||
Weighted average number of common shares outstanding: | ||||||||||||
Basic | 15 | 28,177 | 20,897 | |||||||||
Diluted | 15 | 30,466 | 20,897 |
The accompanying notes are an integral part of these consolidated financial statements | Page | 3 |
QUIPT
HOME MEDICAL CORP. (Formerly, PROTECH HOME MEDICAL CORP.)
AMENDED AND RESTATED
CONDENSED CONSOLIDATED INTERIM STATEMENTS OF CHANGES IN SHAREHOLDERS’ EQUITY (UNAUDITED)
(Expressed in thousands of US Dollars, except per share amounts)
Notes |
Number
of Shares (000’s) |
Capital
stock |
Contributed
surplus |
Shares
to
be issued |
Accumulated
deficit |
Total
shareholders'
equity |
||||||||||||||||||||||
Balance, September 30, 2019 | 20,897 | $ | 151,963 | $ | 16,177 | $ | - | $ | (155,117 | ) | $ | 13,023 | ||||||||||||||||
Net loss | - | - | - | - | (4,638 | ) | (4,638 | ) | ||||||||||||||||||||
Stock-based compensation | 12 | - | - | 32 | - | - | 32 | |||||||||||||||||||||
Balance, December 31, 2019 | 20,897 | $ | 151,963 | $ | 16,209 | $ | - | $ | (159,755 | ) | $ | 8,417 | ||||||||||||||||
Balance, September 30, 2020 | 28,069 | $ | 171,405 | $ | 16,915 | $ | - | $ | (160,085 | ) | $ | 28,235 | ||||||||||||||||
Net income | - | - | - | - | 1,366 | 1,366 | ||||||||||||||||||||||
Stock-based compensation | 12 | - | - | 15 | - | - | 15 | |||||||||||||||||||||
Stock options exercised | 12 | 15 | 85 | (40 | ) | - | - | 45 | ||||||||||||||||||||
Compensation options exercised | 11 | 104 | 523 | (108 | ) | - | - | 415 | ||||||||||||||||||||
Shares to be issued for acquisition | 12 | - | - | - | 3,033 | - | 3,033 | |||||||||||||||||||||
Exercise of warrants, including transfer of derivative warrant liability of $35 | 10,12 | 29 | 177 | - | - | - | 177 | |||||||||||||||||||||
Balance, December 31, 2020 | 28,217 | $ | 172,190 | $ | 16,782 | $ | 3,033 | $ | (158,719 | ) | $ | 33,286 |
The accompanying notes are an integral part of these consolidated financial statements | Page | 4 |
QUIPT
HOME MEDICAL CORP. (Formerly, PROTECH HOME MEDICAL CORP.)
AMENDED AND RESTATED CONDENSED CONSOLIDATED INTERIM STATEMENTS OF CHANGES IN SHAREHOLDERS’ EQUITY (UNAUDITED)
(Expressed in thousands of US Dollars, except per share amounts)
Three months ended | Three months ended | |||||||||||
Notes | December 31, 2020 | December 31, 2019 | ||||||||||
Operating activities | ||||||||||||
Income (loss) from continuing operations | $ | 1,366 | $ | (3,778 | ) | |||||||
Income (loss) from discontinued operations | - | (860 | ) | |||||||||
Adjustments to reconcile net loss to net cash provided by operating activities: | ||||||||||||
Depreciation and amortization | 6,7 | 3,681 | 3,568 | |||||||||
Amortization of financing costs | 34 | - | ||||||||||
Interest expense on leases and loans | 11 | 210 | 230 | |||||||||
Loss on foreign currency transactions | 2 | 408 | ||||||||||
Loss on fair value of derivative warrant liability | 10 | 348 | - | |||||||||
Loss on fair value of convertible debentures | 11 | 635 | 553 | |||||||||
Gain on disposal of property and equipment | (27 | ) | (60 | ) | ||||||||
Stock-based compensation | 12 | 15 | 32 | |||||||||
Bad debt expense | 14 | 2,079 | 2,704 | |||||||||
Inventory reserve adjustment | 540 | 49 | ||||||||||
Change in working capital: | ||||||||||||
Net increase in accounts receivable | (1,266 | ) | 358 | |||||||||
Net increase in inventory | (1,479 | ) | (238 | ) | ||||||||
Net increase in prepaid and other current assets | 91 | (8 | ) | |||||||||
Net increase in deferred revenue | - | 681 | ||||||||||
Net increase in accounts payables and accrued liabilities | (3,139 | ) | (42 | ) | ||||||||
Net cash flow provided by operating activities | 3,090 | 3,597 | ||||||||||
Investing activities | ||||||||||||
Purchase of property and equipment | 6 | (387 | ) | (33 | ) | |||||||
Cash proceeds from sale of property and equipment | 137 | 70 | ||||||||||
Cash paid for acquisitions | 3 | (6,623 | ) | (3,351 | ) | |||||||
Net cash flow used in investing activities | (6,873 | ) | (3,314 | ) | ||||||||
Financing activities | ||||||||||||
Repayments of long-term debt | 11 | (2,925 | ) | (3,803 | ) | |||||||
Payments of purchase price payable | 3 | (250 | ) | - | ||||||||
Proceeds from exercise of warrants | 12 | 142 | - | |||||||||
Proceeds from exercise of options | 12 | 460 | - | |||||||||
Net cash flow used in financing activities | (2,573 | ) | (3,803 | ) | ||||||||
Net decrease in cash | (6,356 | ) | (3,520 | ) | ||||||||
Effect of exchange rate changes on cash held in foreign currencies | 722 | 148 | ||||||||||
Cash, beginning of quarter | 29,227 | 9,708 | ||||||||||
Cash, end of quarter | $ | 23,593 | $ | 6,336 |
The accompanying notes are an integral part of these consolidated financial statements | Page | 5 |
QUIPT HOME MEDICAL CORP. (Formerly, PROTECH HOME MEDICAL CORP.)
NOTES TO THE AMENDED AND RESTATED CONDENSED CONSOLIDATED INTERIM FINANCIAL STATEMENTS
Three months ended December 31, 2020 and 2019
(UNAUDITED)
(Tabular dollar amounts expressed in thousands of US Dollars, except per share amounts)
1. | Nature of operations |
Reporting entity
Quipt Home Medical Corp. ("Quipt" or the “Company”) was incorporated under the Business Corporations Act (Alberta) on March 5, 1993. On December 30, 2013, the Company was continued into British Columbia, Canada. The address of the registered office is 666 Burrard St, Vancouver, British Columbia, V6C 2Z7. The head office is located at 1019 Town Drive, Wilder, Kentucky, United States. The Company is a participating Medicare provider that provides i) nebulizers, oxygen concentrators, and CPAP and BiPAP units; ii) traditional and non-traditional durable medical respiratory equipment and services; and iii) non-invasive ventilation equipment, supplies and services. The Company has embarked on an acquisition strategy for additional revenue and profit growth.
The Company changed its name from Protech Home Medical Corp. to Quipt Home Medical Corp. on May 13, 2021.
The Company’s shares are traded on the TSX Venture Exchange under the symbol QIPT. The stock is also traded on the OTCQX Best Market in the United States under the symbol PTQQF. Effective May 13, 2021, the Company consolidated its issued and outstanding common shares based on one post-consolidation common share for every four pre-consolidation common shares. The change in name and share consolidation were completed in anticipation of the Company’s application to list its common shares on the NASDAQ Capital Market (“NASDAQ”). Unless otherwise stated, the share, options and warrants along with corresponding exercise prices and per-share amounts have been restated retrospectively to reflect this share consolidation.
Basis of measurement
These consolidated financial statements have been prepared on a going concern basis that assumes that the Company will continue its operations for the foreseeable future and be able to realize its assets and discharge its liabilities and commitments in the normal course of operation.
Change in Presentation Currency
Effective October 1, 2020, the Company changed its presentation currency to US dollars from Canadian dollars. Since the Company operates in the United States and its functional currency is US dollars, the Company believes that the change in presentation currency will provide stakeholders with a better reflection of the Company's business activities and enhance the comparability of the Company's financial information. The change in presentation currency represents a voluntary change in accounting policy, which is accounted for retrospectively. The consolidated financial statements for all periods presented have been translated into the new presentation currency in accordance with IAS 21 - The Effects of Changes in Foreign Exchange Rates.
The consolidated statements of income (loss) and comprehensive income (loss) and the consolidated statements of cash flows have been translated into the presentation currency using the average exchange rates prevailing during each reporting period. In the consolidated statements of financial position, all assets and liabilities have been translated using the period-end exchange rates, and equity was translated at historical rates. Asset and liability amounts previously reported in Canadian dollars have been translated into US dollars as at October 1, 2019 and September 30, 2020, using the period-end exchange rates of 1.3242 C$/US$ and 1.3339 C$/US$, respectively. The statements of income (loss) and comprehensive income (loss) and statement of cash flows have been translated at an exchange rate of 1.3199 C$/US$ three months ended December 31, 2019.
In prior reporting periods, the translation of the Company’s US entities, which had a US dollar functional currency, into the Company’s presentation currency of the Canadian dollar, gave rise to a translation adjustment which was recorded as a cumulative translation adjustment (“CTA”), a separate component of shareholders’ equity. With the retrospective application of the change in presentation currency from the Canadian dollar to the US dollar, the CTA was eliminated.
COVID-19 Pandemic
On March 11, 2020, the World Health Organization declared the outbreak of a novel strain of coronavirus (“COVID-19”) a global pandemic. In response to the outbreak, governmental authorities in the United States and internationally have introduced various recommendations and measures to try to limit the pandemic, including travel restrictions, border closures, non-essential business closures, quarantines, self-isolations, shelters-in-place, and social distancing. The COVID-19 outbreak and the response of governmental authorities to try to limit it are having a significant impact on the private sector and individuals, including unprecedented business, employment, and economic disruptions.
Page | 6 |
QUIPT HOME MEDICAL CORP. (Formerly, PROTECH HOME MEDICAL CORP.)
NOTES TO THE AMENDED AND RESTATED CONDENSED CONSOLIDATED INTERIM FINANCIAL STATEMENTS
Three months ended December 31, 2020 and 2019
(UNAUDITED)
(Tabular dollar amounts expressed in thousands of US Dollars, except per share amounts)
Although the Company has taken steps to mitigate the impact of COVID-19, the continued presence and spread of COVID-19 nationally and globally could have a material adverse impact on the Company’s business, operations, and financial results and position, including through employee attrition, disruptions to the Company’s supply chains and sales channels, restrictions of operations at our retail stores, changes in the number of Americans with health insurance resulting in a change in demand for the Company’s products, as well as a deterioration of general economic conditions including a possible national or global recession. Due to the speed with which the COVID-19 situation is developing and the uncertainty of its magnitude, outcome, and duration, it is not possible to estimate its impact on the Company’s business, operations, financial results and position or prospects at this time.
The Company continues to monitor the situation and work with its stakeholders (including customers, employees, and suppliers) in order to assess further possible implications to its business, supply chain, and customers, and, where practicable, mitigate adverse consequences and responsibly address this global pandemic.
The actual and threatened spread of COVID-19 globally could adversely affect global economies and financial markets, resulting in a prolonged economic downturn and a decline in the value of the Company’s share price. The extent to which COVID-19 (or any other disease, epidemic, or pandemic) impacts business activity or financial results, and the duration of any such negative impact, will depend on future developments, which are highly uncertain and cannot be predicted, including new information which may emerge concerning COVID-19 and the actions required to contain or treat its impact, among others.
See Note 8 for relief payments the Company received related to the U.S. Coronavirus Aid, Relief and Economic Security (“CARES”) Act.
2. | Summary of significant accounting policies |
Unreserved statement of compliance
These unaudited condensed consolidated interim financial statements have been prepared in accordance with International Accounting Standard (IAS) 34, Interim Financial Reporting using accounting policies consistent with International Financial Reporting Standards (IFRS) as issued by the International Accounting Standards Board. These condensed consolidated interim financial statements do not include all the disclosures required in annual consolidated financial statements and should be read in conjunction with the Company’s audited consolidated financial statements for the years ended September 30, 2020 and 2019.
Except as noted, the Company has followed the same basis of presentation, accounting policies and method of computation for these condensed consolidated interim financial statements as disclosed in the annual audited consolidated financial statements for the years ended September 30, 2020 and 2019.
The unaudited condensed consolidated interim financial statements were approved and authorized for issuance by the Board of Directors on May 13, 2021.
These unaudited condensed consolidated interim financial statements, which are presented in US dollars, have been prepared under the historical cost convention, as modified by the measurement at fair values of certain financial assets and financial liabilities.
Critical accounting estimates
The preparation of financial statements in conformity with IFRS requires management to make certain estimates, judgments, and assumptions concerning the future. The Company’s management reviews these estimates, judgments, and assumptions on an ongoing basis, based on experience and other factors, including expectations of future events that are believed to be reasonable under the circumstances. Revisions to estimates are adjusted prospectively in the period in which the estimates are revised.
Estimates where management has made subjective judgments and where there is significant risk of material adjustments to assets and liabilities in future accounting periods include fair value measurements for financial instruments and share-based transactions, useful lives and impairment of non-financial assets (property and equipment and intangible assets), provision for expected credit losses, fair value measurements for assets and liabilities acquired in business acquisition, and calculation of deferred taxes
Page | 7
QUIPT HOME MEDICAL CORP. (Formerly, PROTECH HOME MEDICAL CORP.)
NOTES TO THE AMENDED AND RESTATED CONDENSED CONSOLIDATED INTERIM FINANCIAL STATEMENTS
Three months ended December 31, 2020 and 2019
(UNAUDITED)
(Tabular dollar amounts expressed in thousands of US Dollars, except per share amounts)
The following are the key estimate and assumption uncertainties that have a significant risk of resulting in a material adjustment within the next financial year:
Revenue recognition
Revenues are billed to and collections are received from both third-party insurers and patients. Because of continuing changes in the health care industry and third-party reimbursement, the consideration receivable from these insurance companies is variable as these billings can be challenged by the payer. Therefore, the amount billed by the Company is reduced by an estimate of the amount that the Company believes is an allowable charge to be ultimately allowed by the insurance contract. The above estimate involves significant judgment including an analysis of past collections and historical modification rates. Management regularly reviews the actual claims approved by the insurance companies, adjusting as required.
Sales of medical equipment and supplies
The Company sells equipment, replacement parts, and supplies to customers and recognizes revenue based on contractual payment rates as determined by the payors at the point in time where control of the good or service is transferred through delivery to the customer. The payors are generally charged at the time that the product is sold.
The transaction price on equipment sales is the amount that the Company expects to receive in exchange for the goods and services provided. Due to the nature of the industry, gross charges are retail charges and generally do not reflect what the Company is ultimately paid. As such, the transaction price is constrained for the difference between the gross charge and what is estimated to be collected from payors and from patients. The transaction price therefore is predominantly based on contractual payment rates as determined by the payors. The Company does not generally contract with uninsured customers but does offer point-of-sale payments at retail outlets. The payment terms and conditions of customer contracts vary by customer type and the products and services offered.
The Company determines its estimates of contractual allowances and discounts based upon contractual agreements and historical experience. While the rates are fixed for the product or service with the customer and the payors, such amounts typically include co-payments, co-insurance, and deductibles, which vary in amounts, and are due from secondary insurance and/or the patient. The Company includes in the transaction price only the amount that the Company expects to be entitled, which is substantially all of the payor billings at contractual rates.
Due to the nature of the industry and the reimbursement environment in which the Company operates, certain estimates are required to record net revenue and accounts receivable at their net realizable values. Inherent in these estimates is the risk that they will have to be revised or updated as additional information becomes available. Specifically, the complexity of many third-party billing arrangements and the uncertainty of reimbursement amounts for certain services from certain payors may result in adjustments to amounts originally recorded. Such adjustments are typically identified and recorded at the point of claim approval or denial.
Returns and refunds are not accepted on equipment sales. The Company does not offer warranties to customers in excess of the manufacturer’s warranty. Any taxes due upon sale of the products or services are not recognized as revenue. The Company does not have any partially or unfilled performance obligations related to contracts with customers and as such, the Company has no contract liabilities as of December 31, 2020.
Rental of medical equipment
The Company rents medical equipment to customers for a fixed monthly amount on a month-to-month basis. The customer generally has the right to cancel the lease at any time during the rental period. The Company considers these rentals to be operating leases. Under IFRS 16, “Leases”, the Company recognizes rental revenue on operating leases on a straight-line basis over the contractual lease term, resulting in deferred revenue for the portion of the monthly rent that is after the consolidated statement of financial position date. The term begins on the date products are delivered to patients, and revenues are recorded at amounts estimated to be received under reimbursement arrangements with third-party payors, including Medicare, private commercial payors, and Medicaid. Certain customer co-payments are included in revenue when considered probable of payment.
Due to the nature of the industry and the reimbursement environment in which the Company operates, certain estimates are required to record net revenue and accounts receivable at their net realizable values. Inherent in these estimates is the risk that they will have to be revised or updated as additional information becomes available. Specifically, the complexity of many third-party billing arrangements and the uncertainty of reimbursement amounts for certain services from certain payors may result in adjustments to amounts originally recorded. Such adjustments are typically identified and recorded at the point of cash application or claim denial.
Page | 8
QUIPT HOME MEDICAL CORP. (Formerly, PROTECH HOME MEDICAL CORP.)
NOTES TO THE AMENDED AND RESTATED CONDENSED CONSOLIDATED INTERIM FINANCIAL STATEMENTS
Three months ended December 31, 2020 and 2019
(UNAUDITED)
(Tabular dollar amounts expressed in thousands of US Dollars, except per share amounts)
Valuation of accounts receivable
The measurement of expected credit losses considers information about past events and current conditions. Forward looking macro-economic factors are incorporated into the risk parameters, such as unemployment rates, inflation, and interest rates. Significant judgments are made in order to incorporate forward-looking information into the estimation of allowances and may result in changes to the provision from period to period which may significantly affect our results of operations.
The Company estimates that a certain portion of receivables from customers may not be collected and maintains an allowance for doubtful accounts. The Company evaluates the net realizable value of accounts receivable as of the date of the consolidated balance sheets. Specifically, the Company considers historical realization data, including current and historical cash collections, accounts receivable aging trends, other operating trends, and relevant business conditions. Because of continuing changes in the health care industry and third-party reimbursement, it is possible that the estimates could change, which could have a material impact on the operations and cash flows. If circumstances related to certain customers change or actual results differ from expectations, our estimate of the recoverability of receivables could fluctuate from that provided for in our consolidated financial statements. A change in estimate could impact bad debt expense and accounts receivable.
Valuation of inventories
Inventory is recorded at the lower of cost or market. Inventory is expensed through cost of inventory sold when shipped to customers or transferred to property and equipment when rented to customers. The Company estimates that a certain portion of inventory purchased may be excess, obsolete, or non-saleable. The Company maintains a provision for obsolescence for these items. Valuation of the inventory was assessed at year-end, and all inventory items which more than two years are old and not supported by recent sales were provided for 50% in accordance with Company’s policy.
Property and equipment
Property and equipment is stated at cost less accumulated depreciation. Major renewals and improvements are charged to the property accounts, while maintenance, and repairs which do not extend the useful life of the respective assets, are expensed as incurred. Depreciation is computed using the straight-line method over the estimated useful lives of the respective assets.
The estimated useful lives of the assets are as follows:
Depreciation of rental equipment commences once it has been deployed to a patient’s address and put in use. Property and equipment and other non-current assets with definite useful lives are tested for impairment whenever events or changes in circumstances indicate that their carrying amount may not be recoverable.
Page | 9
QUIPT HOME MEDICAL CORP. (Formerly, PROTECH HOME MEDICAL CORP.)
NOTES TO THE AMENDED AND RESTATED CONDENSED CONSOLIDATED INTERIM FINANCIAL STATEMENTS
Three months ended December 31, 2020 and 2019
(UNAUDITED)
(Tabular dollar amounts expressed in thousands of US Dollars, except per share amounts)
Intangible assets
The Company has recorded various intangible assets consisting primarily of non-compete agreements, trade name, customer contracts and customer relationships. Non-compete agreements are the value associated with the non-compete agreements entered by the sellers of purchased companies. Trademarks are the purchase price allocation for the value associated with the trade name of the acquired company. Customer contracts are comprised of the purchase price allocation of the present value of expected future customer billings based on the statistical life of a customer. Customer relationships are the value given in the purchase price allocation to the long-term associations with referral sources such as doctors, medical centers, etc. Finite life intangible assets are amortized on a straight-line basis over the estimated useful lives of the related assets as follows:
Description | Estimated Useful Life |
Non-compete agreements | 5 Years |
Trade name | 10 Years |
Customer contracts | 2 Years |
Customer relationships | 10 Years |
Gains or losses arising from de-recognition of an intangible asset are measured as the difference between the net disposal proceeds and the carrying amount of the asset and are recognized in the Statements of Net Loss and Comprehensive Loss when the asset is derecognized.
The Company reviews the estimates for useful lives on an annual basis, or more frequently if events during the year indicate that a change may be required, with consideration given to technological obsolescence and other relevant business factors. A change in management’s estimate could impact depreciation/amortization expense and the carrying value of property and equipment and intangible assets.
Functional currency
The consolidated financial statements of the Company are presented in US dollars, which is the Company’s functional currency. Determined using management’s judgment that the primary economic environment in which it will derive its revenue and expenses incurred to generate those revenues is the United States. Management has exercised judgment in selecting the functional currency of each of the entities that it consolidates based on the primary economic environment in which the entity operates and in reference to the various indicators including the currency that primarily influences or determines the selling prices of goods and services and the cost of production, including labor, material and other costs and the currency whose competitive forces and regulations mainly determine selling prices.
Business combinations
In accordance with IFRS 3 – Business Combination (“IFRS 3”), a transaction is recorded as a business combination if the significant assets, liabilities, or activities in addition to property and related mortgage debt assumed constitute a business. A business is defined as an integrated set of activities and assets, capable of being conducted and managed for the purpose of providing a return, lower costs, or other economic benefits. Where there are no such integrated activities, the transaction is treated as an asset acquisition. The estimation of the fair value of the assets and liabilities acquired in an acquisition is subject to judgement concerning estimating market values and predicting future events. These values are uncertain and can materially impact the carrying value of the acquired assets and the amount allocated to goodwill.
Lease liabilities
Estimate of lease term
When the Company recognizes a lease, it assesses the lease term based on the conditions of the lease and determines whether it will extend the lease at the end of the lease contract or exercise an early termination option. As it is not reasonably certain that the extension or early termination options will be exercised, the Company determined that the term of its leases are the lesser of original lease term or the life of the leased asset. This significant estimate could affect future results if the Company extends the lease or exercises an early termination option.
Incremental borrowing rate
When the Company recognizes a lease, the future lease payments are discounted using the Company’s incremental borrowing rate. This significant estimate impacts the carrying amount of the lease liabilities and the interest expense recorded on the consolidated statement of loss and comprehensive loss.
Page | 10
QUIPT HOME MEDICAL CORP. (Formerly, PROTECH HOME MEDICAL CORP.)
NOTES TO THE AMENDED AND RESTATED CONDENSED CONSOLIDATED INTERIM FINANCIAL STATEMENTS
Three months ended December 31, 2020 and 2019
(UNAUDITED)
(Tabular dollar amounts expressed in thousands of US Dollars, except per share amounts)
Recognition and initial measurement
The Company recognizes financial assets when it becomes party to the contractual provisions of the instrument. Financial assets are measured initially at their fair value plus, in the case of financial assets not subsequently measured at fair value through profit or loss, transaction costs that are directly attributable to their acquisition. Transaction costs attributable to the acquisition of financial assets subsequently measured at fair value through profit or loss are expensed in the consolidated statement of income (loss) and comprehensive income (loss) when incurred.
Financial instruments
Fair value measurement
Financial instruments carried at fair value on the consolidated statements of financial position are classified using a fair value hierarchy that reflects the significance of the inputs used in making the measurements. The fair value hierarchy has the following levels:
Level 1 – Where financial instruments are traded in active financial markets, fair value is determined by reference to the appropriate quoted market price at the reporting date. Active markets are those in which transactions occur in significant frequency and volume to provide pricing information on an ongoing basis;
Level 2 – If there is no active market, fair value is established using valuation techniques, including discounted cash flow models. The inputs to these models are taken from observable market data where possible, including recent arm’s length market transaction and comparisons to the current fair value of similar instruments, but where this is not feasible, inputs such as liquidity risk, credit risk and volatility are used; and
Level 3 – Valuation in this level are made with inputs other than observable market data.
Cash is classified as Level 1. The derivative warrant liability has been valued using level 3 inputs from the fair value hierarchy. The convertible debentures have been valued using Level 1 input.
Financial instrument risk exposure
The Company’s activities expose it to a variety of financial risks: market risk (including price risk, currency risk and interest rate risk), credit risk, and liquidity risk. These risks arise from the normal course of operations and all transactions are undertaken to support the Company’s ability to continue as a going concern. Risk management is carried out by management under policies promulgated by the Board of Directors. The Company’s overall risk management program seeks to minimize potential adverse effects on the Company’s financial performance.
Credit Risk
Credit risk is the risk that one party to a financial instrument will fail to discharge an obligation and cause the other party to incur a financial loss. Financial instruments that potentially subject the Company to credit risk are primarily cash and accounts receivable. Each subsidiary places its cash with one major financial institution. At times, the cash in the financial institution is temporarily more than the amount insured by the Federal Deposit Insurance Corporation. Substantially all accounts receivable is due under fee-for-service contracts from third party payors, such as insurance companies and government-sponsored healthcare programs, or directly from patients. Receivables generally are collected within industry norms for third-party payors. The Company continuously monitors collections from its clients and maintains an allowance for bad debts based upon any specific payor collection issues that are identified and historical experience. The expected loss rates are based on the historical loss rates and are adjusted to reflect current and forward-looking information on macroeconomic factors affecting the ability of the customers to settle the receivables, such as the unemployment rate of the states in which it conducts business. Trade receivables are written off where there is no reasonable expectation of recovery. Indicators that there is no reasonable expectation of recovery include, among others, a failure to make contractual payments after multiple collection efforts, including third-party collection agencies.
As at December 31, 2020 and 2019, Company has approximately 10% of receivables due from Medicare. As this is a Federal health insurance program in the United States, there is nominal credit risk associated with these balances.
Liquidity risk
Liquidity risk is the risk that the Company will not be able to meet its financial obligations as they become due. The Company’s approach in managing liquidity is to ensure, to the extent possible, that it will have sufficient liquidity to meet its liabilities when due by continuously monitoring actual and budgeted cash flows and monitoring financial market conditions for signs of weakness.
Page | 11
QUIPT HOME MEDICAL CORP. (Formerly, PROTECH HOME MEDICAL CORP.)
NOTES TO THE AMENDED AND RESTATED CONDENSED CONSOLIDATED INTERIM FINANCIAL STATEMENTS
Three months ended December 31, 2020 and 2019
(UNAUDITED)
(Tabular dollar amounts expressed in thousands of US Dollars, except per share amounts)
As of December 31, 2020, the Company faces no material liquidity risk and can meet all its current financial obligations as they become due and payable. At December 31, 2020, the Company has $27,117,000 of liabilities that are due within one year but has $41,232,000 of current assets to meet those obligations.
Interest rate risk
Interest rate risk is the risk that the future cash flows of a financial instrument will fluctuate because of changes in market interest rates. Interest rate risk is limited to potential decreases on the interest rate offered on cash and cash equivalents held with Chartered Canadian and registered US financial institutions. The Company considers this risk to be immaterial. The interest on the debenture and equipment loans is not subject to cash flow interest rate risk as these instruments bear interest at fixed rates.
3. | Acquisition of businesses and purchase accounting |
Acquisition of Sleepwell, LLC (Sleepwell)
Effective October 23, 2020, the Company, through PHM Logistics Corporation, entered into a purchase agreement to acquire the shares of Sleepwell, Inc. (Sleepwell), Georgia company in the same industry as the Company. The purchase price was $9,976,000 of which $6,623,000 was paid in cash at closing, $2,376,000 (629,000 shares at a fair value of $3.78 per share) was paid through the issuance of stock in January 2021, $320,000 that was paid in March 2021 upon the resolution of Sleepwell’s Payroll Protection Plan loan and post-closing adjustments, and $657,000 (246,000 shares at a fair value of $2.67) to be paid in stock in August 2022. The fair value of the stock has been discounted by 15% and 25%, respectively, using the Black-Scholes pricing model for put options, to reflect the inability to sell the stock for a period and for the time between the date of the acquisition and the dates the stock is to be issued. The Company has determined that the transaction is an acquisition of a business under IFRS 3 – Business Combinations, and it has been accounted for by applying the acquisition method. The Company expensed $56,000 of legal expenses in conjunction with the acquisition.
The pro forma revenues and net income for Sleepwell for the three months ended December 31, 2020 was approximately $2,700,000 and $800,000, respectively.
The primary areas of the preliminary purchase price allocations that are not yet finalized relate to: intangible assets acquired, deferred tax liabilities, working capital adjustments, and purchase price. The Company expects to continue to obtain information to assist in determining the fair value of the net assets acquired at the acquisition date during the measurement period. Measurement period adjustments that the Company determines to be material will be applied retrospectively to the period of acquisition in the Company’s consolidated financial statements and, depending on the nature of the adjustments, other periods subsequent to the period of acquisition could be affected. The fair value of the acquired assets and liabilities is preliminary pending final valuations of the assets and liabilities and is as follows:
Cash | $ | 378 | ||
Accounts receivable | 780 | |||
Inventory | 769 | |||
Prepaid expenses and other current assets | 2 | |||
Property and equipment | 960 | |||
Right of use real estate ($390 net of unfavorable lease) | 313 | |||
Goodwill | 4,067 | |||
Intangible asset – Non-compete | 220 | |||
Intangible asset – Trade name | 520 | |||
Intangible asset – Customer relationships | 4,670 | |||
Accounts payable | (640 | ) | ||
Accrued payroll | (166 | ) | ||
Deferred revenue | (100 | ) | ||
Lease liabilities | (390 | ) | ||
Deferred tax liability | (1,407 | ) | ||
Net assets acquired | $ | 9,976 | ||
Cash paid at closing | $ | 6,623 | ||
Stock issued in January 2021, included in purchase price payable in shares | 2,376 | |||
Cash paid after closing, included in purchase price payable | 320 | |||
Stock to be issued after closing, included in purchase price payable in shares | 657 | |||
Consideration paid or payable | $ | 9,976 |
The goodwill is attributable to expected synergies from the combining operations. None of the goodwill is deductible for tax purposes. Subsequent to the acquisition date, deferred tax liability on purchase price allocation of $1,407,000 was offset by the deferred tax asset from tax loss carry-forward and recorded as recovery of provision for income taxes.
Page | 12
QUIPT HOME MEDICAL CORP. (Formerly, PROTECH HOME MEDICAL CORP.)
NOTES TO THE AMENDED AND RESTATED CONDENSED CONSOLIDATED INTERIM FINANCIAL STATEMENTS
Three months ended December 31, 2020 and 2019
(UNAUDITED)
(Tabular dollar amounts expressed in thousands of US Dollars, except per share amounts)
Prior Periods
During the three months ended December 31, 2019, the Company acquired two businesses. The details of these acquisitions were disclosed in Note 4 of the Company’s annual financial statements for the year ended September 30, 2020.
The purchase price payable included on the on the statement of financial position consists of amounts related to acquisitions during the current period as well as in prior periods. Below is the movement in Purchase Price Payable for the three months ended December 31, 2020:
Three months ended
December 31, 2020 |
||||
Opening Balance (current $857; long-term $560) | $ | 1,417 | ||
Addition from acquisition | 320 | |||
Payments on prior period acquisitions | (250 | ) | ||
Ending Balance (current $1,166; long-term $321) | $ | 1,487 |
4. | Accounts Receivable |
Accounts receivable represents amounts due from insurance companies and patients:
As at December
31, 2020 |
As at September
30, 2020 |
|||||||
Gross receivable | $ | 14,918 | $ | 14,125 | ||||
Reserve for expected credit losses | (5,863 | ) | (5,036 | ) | ||||
$ | 9,055 | $ | 9,089 |
As at December 31, 2020 | Gross Receivables |
Allowance for
expected credit losses |
Net Receivables | |||||||||
0 – 90 days | $ | 7,919 | $ | (969 | ) | $ | 6,950 | |||||
91 – 180 days | 2,078 | (878 | ) | 1,200 | ||||||||
Over 180 days | 4,921 | (4,016 | ) | 905 | ||||||||
Total | $ | 14,918 | $ | (5,863 | ) | $ | 9,055 |
Below is the movement in the reserve for expected credit losses:
Reserve for expected credit losses |
Three months
ended December 31, 2020 |
Three months
ended December 31, 2019 |
||||||
Opening Balance | $ | 5,036 | $ | 2,321 | ||||
Bad debt expense | 2,079 | 2,704 | ||||||
Amounts written off | (1,252 | ) | (2,361 | ) | ||||
Ending Balance | $ | 5,863 | $ | 2,664 |
Page | 13
QUIPT HOME MEDICAL CORP. (Formerly, PROTECH HOME MEDICAL CORP.)
NOTES TO THE AMENDED AND RESTATED CONDENSED CONSOLIDATED INTERIM FINANCIAL STATEMENTS
Three months ended December 31, 2020 and 2019
(UNAUDITED)
(Tabular dollar amounts expressed in thousands of US Dollars, except per share amounts)
5. | Inventory |
As at December 31, 2020 | As at September 30, 2020 | |||||||
Serialized | $ | 2,574 | $ | 2,132 | ||||
Non-serialized | 6,171 | 4,366 | ||||||
Reserve for shrink and slow-moving | (623 | ) | (83 | ) | ||||
Total | $ | 8,122 | $ | 6,415 |
The reserve for slow-moving is included under cost of inventory sold in the condensed consolidated interim statement of (loss and comprehensive (loss) income.
6. | Property and equipment and right of use assets |
Cost |
Rental
equipment |
Computer
equipment |
Office
furniture and fixtures |
Leasehold
improvements |
Right
of use
assets - Vehicles |
Right
of use
assets – Real estate |
Total | |||||||||||||||||||||
Balance September 30, 2019 | $ | 26,717 | $ | 504 | $ | 433 | $ | 1,169 | $ | 2,588 | $ | - | $ | 31,411 | ||||||||||||||
Additions – adoption of IFRS 16 | - | - | - | - | - | 2,618 | 2,618 | |||||||||||||||||||||
Transfers from inventory | 842 | - | - | - | - | - | 842 | |||||||||||||||||||||
Additions | - | 4 | - | 29 | 246 | 599 | 878 | |||||||||||||||||||||
Acquisitions | 2,124 | - | - | 185 | 160 | 1,097 | 3,566 | |||||||||||||||||||||
Disposals | (3,404 | ) | (4 | ) | (1 | ) | (2 | ) | (55 | ) | - | (3,466 | ) | |||||||||||||||
Balance December 31, 2019 | $ | 26,279 | $ | 504 | $ | 432 | $ | 1,381 | $ | 2,939 | $ | 4,314 | $ | 35,849 | ||||||||||||||
Balance September 30, 2020 | $ | 22,568 | $ | 171 | $ | 333 | $ | 1,364 | $ | 2,872 | $ | 4,990 | $ | 32,298 | ||||||||||||||
Transfers from inventory | 2,259 | - | - | - | - | - | 2,259 | |||||||||||||||||||||
Additions | - | 4 | - | 11 | 157 | 902 | 1,074 | |||||||||||||||||||||
Acquisitions | 960 | - | - | - | - | 313 | 1,273 | |||||||||||||||||||||
Disposals | (2,731 | ) | (17 | ) | (11 | ) | (3 | ) | (177 | ) | (302 | ) | (3,241 | ) | ||||||||||||||
Balance December 31, 2020 | $ | 23,056 | $ | 158 | $ | 322 | $ | 1,372 | $ | 2,852 | $ | 5,903 | $ | 33,663 | ||||||||||||||
Accumulated depreciation |
Rental
equipment |
Computer
equipment |
Office
furniture and fixtures |
Leasehold
improvements |
Right
of use
assets - Vehicles |
Right
of use
assets – Real estate |
Total | |||||||||||||||||||||
Balance September 30, 2019 | $ | 14,769 | $ | 371 | $ | 260 | $ | 257 | $ | 1,031 | $ | - | $ | 16,688 | ||||||||||||||
Depreciation | 2,768 | 26 | 25 | 45 | 148 | 361 | 3,373 | |||||||||||||||||||||
Disposals | (3,404 | ) | (4 | ) | (1 | ) | (1 | ) | (33 | ) | - | (3,443 | ) | |||||||||||||||
Balance December 31, 2019 | $ | 14,133 | $ | 393 | $ | 284 | $ | 301 | $ | 1,146 | $ | 362 | $ | 16,618 | ||||||||||||||
Balance September 30, 2020 | $ | 12,311 | $ | 106 | $ | 229 | $ | 309 | $ | 1,182 | $ | 1,494 | $ | 15,631 | ||||||||||||||
Depreciation | 2,652 | 8 | 15 | 29 | 172 | 490 | 3,366 | |||||||||||||||||||||
Disposals | (2,731 | ) | (17 | ) | (11 | ) | (3 | ) | (162 | ) | (207 | ) | (3,131) | |||||||||||||||
Balance December 31, 2020 | $ | 12,232 | $ | 97 | $ | 233 | $ | 335 | $ | 1,192 | $ | 1,777 | $ | 15,866 | ||||||||||||||
Net Book Value |
Rental
equipment |
Computer
equipment |
Office
furniture and fixtures |
Leasehold
improvements |
Right
of use assets -
Vehicles |
Right
of use assets –
Real estate |
Total | |||||||||||||||||||||
Balance September 30, 2019 | $ | 11,948 | $ | 133 | $ | 173 | $ | 912 | $ | 1,557 | $ | - | $ | 14,723 | ||||||||||||||
Balance December 31, 2019 | $ | 12,146 | $ | 111 | $ | 148 | $ | 1,080 | $ | 1,793 | $ | 3,953 | $ | 19,231 | ||||||||||||||
Balance September 30, 2020 | $ | 10,257 | $ | 64 | $ | 104 | $ | 1,055 | $ | 1,690 | $ | 3,496 | $ | 16,667 | ||||||||||||||
Balance December 31, 2020 | $ | 10,824 | $ | 61 | $ | 89 | $ | 1,037 | $ | 1,660 | $ | 4,126 | $ | 17,797 |
Out of $2,259,000 rental equipment transferred from inventory during the three months ended December 31, 2020, the Company obtained equipment loans (Note 11) for $1,887,000 with the balance of $372,000 paid in cash.
Page | 14
QUIPT HOME MEDICAL CORP. (Formerly, PROTECH HOME MEDICAL CORP.)
NOTES TO THE AMENDED AND RESTATED CONDENSED CONSOLIDATED INTERIM FINANCIAL STATEMENTS
Three months ended December 31, 2020 and 2019
(UNAUDITED)
(Tabular dollar amounts expressed in thousands of US Dollars, except per share amounts)
7. | Goodwill and intangible assets |
Cost | Goodwill |
Non-
compete agreements |
Trade name |
Customer
contracts |
Customer
relationships |
Sub-total
intangibles with finite lives |
Total | |||||||||||||||||||||
Balance September 30, 2019 | $ | 1,420 | $ | 517 | $ | 1,341 | $ | 3,851 | $ | 8,460 | $ | 14,169 | $ | 15,589 | ||||||||||||||
Acquisition | 802 | 51 | 211 | 794 | - | 1,056 | 1,858 | |||||||||||||||||||||
Balance December 31, 2019 | $ | 2,222 | $ | 568 | $ | 1,552 | $ | 4,645 | $ | 8,460 | $ | 15,225 | $ | 17,447 | ||||||||||||||
Balance September 30, 2020 | $ | 3,895 | $ | 637 | $ | 1,881 | $ | 3,851 | $ | 11,766 | $ | 18,135 | $ | 22,030 | ||||||||||||||
Acquisitions | 4,067 | 220 | 520 | - | 4,670 | 5,410 | 9,477 | |||||||||||||||||||||
Disposals | - | - | - | - | (51 | ) | (51 | ) | (51 | ) | ||||||||||||||||||
Balance December 31, 2020 | $ | 7,962 | $ | 857 | $ | 2,401 | $ | 3,851 | $ | 16,385 | $ | 23,494 | $ | 31,456 | ||||||||||||||
Accumulation amortization | Goodwill |
Non-compete
agreements |
Trade name |
Customer
contracts |
Customer
relationships |
Sub-total
intangibles with finite lives |
Total | |||||||||||||||||||||
Balance September 30, 2019 | $ | - | $ | 480 | $ | 888 | $ | 3,728 | $ | 6,875 | $ | 11,971 | $ | 11,971 | ||||||||||||||
Amortization | - | 11 | 23 | 71 | 90 | 195 | 195 | |||||||||||||||||||||
Balance December 31, 2019 | $ | - | $ | 491 | $ | 911 | $ | 3,799 | $ | 6,965 | $ | 12,166 | $ | 12,166 | ||||||||||||||
Balance September 30, 2020 | $ | - | $ | 522 | $ | 989 | $ | 3,845 | $ | 7,200 | $ | 12,556 | $ | 12,556 | ||||||||||||||
Amortization | - | 19 | 43 | 5 | 248 | 315 | 315 | |||||||||||||||||||||
Disposals | - | - | - | - | (51 | ) | (51 | ) | (51 | ) | ||||||||||||||||||
Balance December 31, 2020 | $ | - | $ | 541 | $ | 1,032 | $ | 3,850 | $ | 7,397 | $ | 12,820 | $ | 12,820 |
Net carrying amount | Goodwill |
Non-compete
agreements |
Trade name |
Customer
contracts |
Customer
relationships |
Sub-total
intangibles with finite lives |
Total | |||||||||||||||||||||
Balance September 30, 2019 | $ | 1,420 | $ | 37 | $ | 453 | $ | 123 | $ | 1,585 | $ | 2,198 | $ | 3,618 | ||||||||||||||
Balance December 31, 2019 | $ | 2,222 | $ | 77 | $ | 641 | $ | 846 | $ | 1,495 | $ | 3,059 | $ | 5,281 | ||||||||||||||
Balance September 30, 2020 | $ | 3,896 | $ | 115 | $ | 892 | $ | 6 | $ | 4,566 | $ | 5,579 | $ | 9,474 | ||||||||||||||
Balance December 31, 2020 | $ | 7,962 | $ | 316 | $ | 1,369 | $ | 1 | $ | 8,988 | $ | 10,674 | $ | 18,636 |
8. | Government Grant |
During the year ended September 30, 2020, the Company received payments related to the two separate provisions of the CARES Act.
Payroll Protection Plan (“PPP’)
On April 16, 2020, the Company received $4,254,000 related to the PPP, which was to assist companies in maintaining their workforce. The PPP provided for loans to qualifying businesses for amounts up to 2.5 times of the average monthly payroll expenses. The loans and accrued interest are forgivable if the borrower uses the loan proceeds for eligible purposes, including payroll, benefits, rent, and utilities for up to twenty-four weeks, and maintains certain payroll levels. The unforgiven portion of the PPP loan is payable, with 1% interest over 9 monthly installments of $473,000 from September 2021 through ending April 2022 resulting in a current portion of 1,891,000.
Since the Company expects to meet the PPP’s eligibility criteria for forgiveness and has concluded that the PPP loan represents, in substance, a grant that is expected to be forgiven, it has accounted for the proceeds under IAS 20, Accounting for Government Grants and Disclosure of Government Assistance. The cash inflow has been reported as a financing activity and a liability has been recorded on the balance sheet. No reduction in the liability has been recorded.
Page | 15
QUIPT HOME MEDICAL CORP. (Formerly, PROTECH HOME MEDICAL CORP.)
NOTES TO THE AMENDED AND RESTATED CONDENSED CONSOLIDATED INTERIM FINANCIAL STATEMENTS
Three months ended December 31, 2020 and 2019
(UNAUDITED)
(Tabular dollar amounts expressed in thousands of US Dollars, except per share amounts)
Public Health and Social Services Emergency Fund (“Relief Fund”)
During the year ended September 30, 2020, the Company received $1,797,000 from the Relief Fund, which was established to support healthcare providers to prevent, prepare for, and respond to coronavirus, including health care related expenses or lost revenues, subject to certain terms and conditions. If those terms and conditions are met, payments do not need to be repaid. No expenses related to the PPP can be used to meet the terms and conditions for the Relief Fund.
Since the Company believes it has met the Relief Fund’s terms and conditions, it has accounted for the proceeds under IAS 20, Accounting for Government Grants and Disclosure of Government Assistance. The cash inflow has been reported as a financing activity. The original proceeds were recognized as a liability, which was reduced based on certain related costs relates incurred. During the year ended September 30, 2020, the Company reduced the liability by $1,166,000, which was been included under other expense (income) in the statement of loss and other comprehensive loss.
PPP | Relief Fund | Total | ||||||||||
Balance, October 1, 2019 | $ | - | $ | - | $ | - | ||||||
Grants received | 4,254 | 1,797 | 6,051 | |||||||||
Recognized as income | - | (1,166 | ) | (1,166 | ) | |||||||
Balance, September 30 and December 31, 2020 | 4,254 | 631 | 4,885 | |||||||||
Current portion | 1,891 | - | 1,891 | |||||||||
Long-term portion | $ | 2,363 | $ | 631 | $ | 2,994 |
9. | Deferred Revenue |
Activity for deferred revenue for the three months ended December 31, 2020 and 2019 is as follows:
For the three months ended December 31, 2020 | For the three months ended December 31, 2019 | |||||||
Beginning balance | $ | 1,804 | $ | 1,438 | ||||
Acquisitions | 100 | 332 | ||||||
Operations | - | (145 | ) | |||||
Ending balance | $ | 1,904 | $ | 1,625 |
10. | Derivative warrant liability |
On June 29, 2020, the Company completed a bought deal public offering, a concurrent brokered private placement, and a non-brokered private placement to the Company’s Chief Executive Officer and a director of the Company, for 27,678,826 units, respectively. Each unit consisted of one pre-consolidation common share and one-half of one common share purchase warrant (each whole warrant, a “Warrant”), for a total of 13,839,412 Warrants. Following the consolidation, for every four Warrants exercised in accordance with its terms, the holder thereof will be entitled to acquire one common share for a period of 12 months following the closing at an exercise price of C$6.40 per share. The Warrants are recorded as a liability since they are denominated in Canadian Dollars and the Company’s functional currency is US Dollars. The liability was recorded at fair value per warrant of $0.16 and $0.13 as of December 31, 2020 and September 30, 2020, respectively, using the Black-Scholes pricing model revaluation is performed each period end, with the change in fair value recorded in the caption “Loss (gain) on fair value of warrants.” Upon exercise, the warrant liability is derecognized and transferred to equity.
Warrant activity for the three months ended December 31, 2020 is provided below:
Amount | ||||
Balance September 30, 2020 | $ | 1,855 | ||
Exercised | (35 | ) | ||
Change in fair value | 348 | |||
Change in foreign exchange rate | 94 | |||
Balance December 31, 2020 | $ | 2,262 |
Page | 16
QUIPT HOME MEDICAL CORP. (Formerly, PROTECH HOME MEDICAL CORP.)
NOTES TO THE AMENDED AND RESTATED CONDENSED CONSOLIDATED INTERIM FINANCIAL STATEMENTS
Three months ended December 31, 2020 and 2019
(UNAUDITED)
(Tabular dollar amounts expressed in thousands of US Dollars, except per share amounts)
11. | Long-term Debt |
Debentures
On March 7, 2019, the Company issued C$15,000,000 in 8.0% Convertible Unsecured Debentures due March 7, 2024, with interest payable semi-annually on June 30 and December 31. Each C$1,000 (US$785) debenture is convertible at the option of the holder into approximately 769.23 common shares. As of December 31, 2020, and September 30, 2020, C$4,000 of debentures had been converted into common shares, leaving C$14,996,000 ($11,778,000) of face value of the debentures remaining. After three years, the Company can force conversion of the outstanding principal at conversion price of C$5.20, if the daily volume weighted average price of the common shares exceeds C$6.48 per share for twenty consecutive trading days. The debenture agreement also allows for payment of cash in lieu of common shares upon exercise of conversion right by the holder, equivalent of the market price on the conversion date. The Company recoded $230,000 and 227,000 as interest expense during the three months ended December
31, 2020 and 2019.
The debentures contain multiple embedded derivatives including conversion right, forced conversion option and payment in lieu of common shares. Since the Company is unable to measure the fair value of embedded derivatives reliably, it has chosen to designate the convertible debentures in their entirety (including conversion right, forced conversion option and payment in lieu of common shares) to be subsequently measured at fair value through profit or loss (FVTPL).
The debentures are valued at fair value using the current trading price of $95 and $86 as of December 31, 2020 and September 30, 2020, respectively, per unit. A loss of $635,000 and $553,000 for the three months ended December 31, 2020 and 2019. Following is the movement in these debentures:
Three Months ended December 31, 2020 | Three months ended December 31, 2019 | |||||||
Beginning Balance | $ | 12,930 | $ | 10,547 | ||||
Change in fair value | 635 | 553 | ||||||
Change in foreign exchange rate | 628 | 215 | ||||||
Ending Balance | $ | 14,193 | $ | 11,315 |
The Company issued compensation options to the underwriters for 129,808 shares of the Company at an exercise price of C$5.20 for a period of two years from the closing of the transaction. The fair value of the options has been valued at $1.02 for a total of $132,888 using the Black-Scholes pricing model.
Page | 17
QUIPT HOME MEDICAL CORP. (Formerly, PROTECH HOME MEDICAL CORP.)
NOTES TO THE AMENDED AND RESTATED CONDENSED CONSOLIDATED INTERIM FINANCIAL STATEMENTS
Three months ended December 31, 2020 and 2019
(UNAUDITED)
(Tabular dollar amounts expressed in thousands of US Dollars, except per share amounts)
Compensation options activity for the three months ended December 31, 2020 is provided below:
Number
(000s) |
Weighted
average exercise price |
|||||||
Balance, September 30, 2020 | 130 | C$ 5.20 | ||||||
Exercised | (104 | ) | 5.20 | |||||
Balance, December 31, 2020 | 26 | C$ 5.20 |
Equipment Loans
The Company is offered financing arrangements from their suppliers and their designated financial institution, in which payments for certain invoices or products can be financed and paid over an extended period. The financial institution pays the supplier when the original invoice becomes due, and the Company pays the third-party financial institution over a period of time. In some cases, the supplier accepts a discounted amount from the financial institution and the Company repays the financial institution the face amount of the invoice with no stated interest, in twelve equal monthly installments. The Company uses a 6% incremental borrowing rate to impute interest on these arrangements. In other cases, the supplier receives the full invoice price and Company pays a stated interest rate to the financial institution, ranging from 5.6% to 8.0%, with the terms of the financing ranging from 12 to 48 months. There are no covenants with the loans and the carrying value of the equipment that is pledged as security against these loans is $5,810,000.
Following is the activity in equipment loans for the three months ended December 31, 2020 and 2019:
Three months ended December 31, 2020 | Three months ended December 31, 2019 | |||||||
Beginning Balance | $ | 4,750 | $ | 7,306 | ||||
Additions: | ||||||||
Acquisitions | - | 650 | ||||||
Operations | 1,887 | 2,365 | ||||||
Interest expense | 85 | 112 | ||||||
Repayments | (2,150 | ) | (3,310 | ) | ||||
Ending Balance | 4,572 | 7,123 | ||||||
Current portion | (4,290 | ) | (6,345 | ) | ||||
Long-term portion, due in 2022 | $ | 282 | $ | 778 |
Leases Liabilities
The Company enters in lease for real estate and vehicles. Real estate leases are valued at the net present value of the future lease payments at an 8% incremental borrowing rate. Vehicle leases are recorded at rate implicit in the lease based on the current value and the estimated residual value of the vehicle, equating to rates ranging from 1.7% to 10.4%.
Below is the movement in lease liabilities for the three months ended December 31, 2020:
Vehicles | Real estate | Total | ||||||||||
Balance, September 30, 2020 | $ | 1,627 | $ | 3,640 | $ | 5,267 | ||||||
Additions during the period: | ||||||||||||
Acquisition | - | 390 | 390 | |||||||||
Operations | 157 | 902 | 1,059 | |||||||||
Interest | 35 | 90 | 125 | |||||||||
Repayments | (170 | ) | (605 | ) | (775 | ) | ||||||
Balance, December 31, 2020 | $ | 1,649 | $ | 4,417 | $ | 6,066 |
Page | 18
QUIPT HOME MEDICAL CORP. (Formerly, PROTECH HOME MEDICAL CORP.)
NOTES TO THE AMENDED AND RESTATED CONDENSED CONSOLIDATED INTERIM FINANCIAL STATEMENTS
Three months ended December 31, 2020 and 2019
(UNAUDITED)
(Tabular dollar amounts expressed in thousands of US Dollars, except per share amounts
Future payments pursuant to lease liabilities are as follows:
As at
December 31, 2020 |
As at
September 30, 2020 |
|||||||
Less than 1 year | $ | 2,528 | $ | 2,394 | ||||
Between 1 and 5 years | 4,345 | 3,497 | ||||||
More than five years | - | 70 | ||||||
Gross lease payments | 6,873 | 5,961 | ||||||
Less: finance charges | (807 | ) | (694 | ) | ||||
Net lease liabilities | $ | 6,066 | $ | 5,267 |
Revolving Credit Facility
In September 2020, the Company entered a $20,000,000 asset-based revolving credit facility with a US bank. The facility matures in September 2024 and bears interest at floating rate of LIBOR plus 2.0% to 2.5%, with a LIBOR floor of 0.5% and has an unused fee of 0.3%. Interest expense for the facility for the three months ended December 31, 2020 and 2019 totaled $12,000 and NIL and primarily related to the credit facility fee. The facility is subject to a borrowing base based on a percentage of eligible accounts receivable and customer rental contracts. Issuance costs of $561,000 were incurred, were recorded in “other long-term assets” on the consolidated statement of financial position and are being amortized on a straight-line over the four-year term of the facility for a total of $34,000 and NIL for the three months ended December 31, 2020 (2019 NIL).
12. | Share capital |
The Company considers its capital to be shareholders’ equity, which is comprised of share capital, contributed surplus, and accumulated deficit, in the amount of $29,662,000 at December 31, 2020.
The Company raises capital, as necessary, to meet its needs and take advantage of perceived opportunities and, therefore, does not have a numeric target for its capital structure. Funds are primarily secured through equity, and long-term debt, including debentures, equipment loans and leases.
Management reviews its capital management approach on an ongoing basis and believes that this approach, given the relative size of the Company, is reasonable. The Company invests all capital that is surplus to its immediate operational needs in short-term, liquid and highly rated financial instruments, such as cash, and short-term guarantee deposits, held with major Canadian and US financial institutions.
Authorized share capital
The Company’s authorized share capital consists of an unlimited number of common shares and an unlimited number of preferred shares issuable in series. The preferred shares issuable in series will have the rights, privileges, restrictions, and conditions assigned to the series upon the Board of Directors approving their issuance.
Issued share capital
The Company has only one class of common stock outstanding. Effective December 31, 2018, the Company consolidated its issued and outstanding common shares based on one post-consolidation common share for every five pre-consolidation common shares.
Common shares are classified as equity. Incremental costs directly attributable to the issuance of common shares are recognized as a reduction of equity, net of any tax effects.
Page | 19
QUIPT HOME MEDICAL CORP. (Formerly, PROTECH HOME MEDICAL CORP.)
NOTES TO THE AMENDED AND RESTATED CONDENSED CONSOLIDATED INTERIM FINANCIAL STATEMENTS
Three months ended December 31, 2020 and 2019
(UNAUDITED)
(Tabular dollar amounts expressed in thousands of US Dollars, except per share amounts)
Bought deals and private placements
On June 29, 2020, the Company completed a bought deal public offering, a concurrent brokered private placement, and a non-brokered private placement to the Company’s Chief Executive Officer and a director of the Company, for a total of 27,678,826 pre-consolidation units, comprising 27,678,826 pre-consolidation shares or 6.919,706 post consolidation shares and 27,678,826 warrants. Each unit issued was issued at a pre-consolidation price of C$1.15 for total gross proceeds of C$31,831,000 and consisted of one pre-consolidation common share and one-half of one common share purchase warrant (each whole warrant, a “Warrant”) for a total of 13,839,413 Warrants. Following the consolidation, for every four Warrants exercised in accordance with its terms, the holder will be entitled to acquire one common share for a period of 12 months following the closing at an exercise price of C$6.40 per share. During the three months ended December 31, 2020, 115,000 pre-consolidation warrants were exercised for 28,750 common shares for total proceeds of C$184,000, or $142,000.
Common shares related to Warrant activity for the three months ended December 31, 2020 is provided below:
Number of common
shares (000s) |
Weighted
average exercise price |
|||||||
Balance, September 30, 2020 | 3,460 | C$ 6.40 | ||||||
Exercised | (29 | ) | 6.40 | |||||
Balance, December 31, 2020 | 3,431 | C$ 6.40 |
Issuance costs of $2,546,000 in cash, including underwriters’ commission of $1,692,000, were incurred. The Company issued compensation options to the underwriter for pre-consolidation 1,471,305 (367,826 post-consolidation) shares at the pre-consolidation issue price of C$1.15 for a period of two years from the closing of the offering. The fair value of the options has been valued at $0.31 for a total of $456,000.
Activity for the June 2020 compensation options for the three months ended December 31, 2020 is as follows:
Number
(000s) |
Weighted
average exercise price |
|||||||
Balance, September 30, 2020 | 353 | C$ 4.60 | ||||||
Issued | - | - | ||||||
Balance, December 31, 2020 | 353 | C$ 4.60 |
Shares to be issued
As discussed in Note 3, the Company acquired Sleepwell on October 23, 2020, with a portion of the purchase price in shares. $2,376,000 (629,000 shares at a fair value of $3.78 per share) was issued in January 2021, and $657,000 (246,000 shares at a fair value of $2.67) is expected to be issued in August 2022. The fair value of the stock has been discounted by 15% and 25%. Respectively, using the Black-Scholes pricing model for put options, to reflect the inability to sell the stock for a period and for the time between the date of the acquisition and the dates the stock is to be issued.
Stock options and grants
The Company has a stock option plan, which it uses for grants to directors, officers, employees, and consultants. Options granted under the plan are non-assignable and may be granted for a term not exceeding ten years. Stock options generally vest either immediately or quarterly over a two-year period.
A summary of stock options is provided below:
Number of options
(000’s) |
Weighted
average exercise price |
|||||||
Balance, September 30, 2020 | 2,626 | C$ 1.92 | ||||||
Granted | 50 | 6.16 | ||||||
Exercised | (15 | ) | 3.96 | |||||
Expired | (28 | ) | 3.72 | |||||
Balance, December 31, 2020 | 2,633 | C$ 1.92 |
Page | 20
QUIPT HOME MEDICAL CORP. (Formerly, PROTECH HOME MEDICAL CORP.)
NOTES TO THE AMENDED AND RESTATED CONDENSED CONSOLIDATED INTERIM FINANCIAL STATEMENTS
Three months ended December 31, 2020 and 2019
(UNAUDITED)
(Tabular dollar amounts expressed in thousands of US Dollars, except per share amounts)
At December 31, 2020, the Company had 2,562,750 vested stock options with a weighted average exercise price of C$1.88.
The Company accounts for stock-based compensation, including stock options and stock grants, using the fair value method as prescribed by IFRS 2. Under this method, the fair value of stock options at the date of grant is expensed over the vesting period and the offsetting credit is recorded as an increase in contributed surplus.
For the three months ended December 31, 2020 and 2019, the Company recorded stock-based compensation expense of $15,000 and $32,000, respectively.
The fair value of the stock options granted has been charged to the statement of income (loss) and comprehensive income (loss) and credited to contributed surplus over the proper vesting period, using the Black-Scholes option pricing model calculated using the following assumptions:
Three months ended | ||||
December 31, 2020 | ||||
Share price at grant date | C$6.16 | |||
Risk-free interest rate | 0.36 | % | ||
Expected volatility | 64 | % | ||
Expected life of option | 5 years | |||
Expected dividend yield | Nil |
13. | Commitments and Contingencies |
Commitments
The Company leases certain facilities with terms of less than a year that are classified as operating leases. Future payments pursuant to these leases are $15,000 as of December 31, 2020, which are all due in less than one year.
Contingencies
The Company has been in litigation with Lightwater Long Short Fund (“Lightwater”) during the years ended September 30, 2020 and three months ended December 31, 2020. The litigation is due to Lightwater claiming damages for matters related to subscription agreements in a prior private placement. Management and legal believe that this lawsuit is without merit and is unpredictable. It is uncertain currently to determine the outcome of this lawsuit or our potential liability, if any.
From time to time, the Company is involved in various legal proceedings arising from the ordinary course of business. None of the matters in which the Company is currently involved, either individually, or in the aggregate, is expected to have a material adverse effect on the Company’s consolidated financial position, results of operations, or cash flows.
14. | Operating expenses |
Three months ended
December 31, 2020 |
Three months ended
December 31, 2019 |
|||||||
Employee salary and benefits | $ | 6,439 | $ | 5,818 | ||||
Bad debt expense (Note 4) | 2,079 | 2,704 | ||||||
Facilities | 491 | 624 | ||||||
Billing | 716 | 329 | ||||||
Professional fees | 440 | 289 | ||||||
Marketing costs | 128 | 166 | ||||||
All other | 1,236 | 967 | ||||||
Total | $ | 11,529 | $ | 10,897 |
Page | 21
QUIPT HOME MEDICAL CORP. (Formerly, PROTECH HOME MEDICAL CORP.)
NOTES TO THE AMENDED AND RESTATED CONDENSED CONSOLIDATED INTERIM FINANCIAL STATEMENTS
Three months ended December 31, 2020 and 2019
(UNAUDITED)
(Tabular dollar amounts expressed in thousands of US Dollars, except per share amounts)
15. | Income (loss) per share |
Income (loss) per common share is calculated using the weighted average number of common shares outstanding during the period. Diluted income (loss) per share amounts are calculated giving effect to the potential dilution that would occur from the incremental shares issued if in-the-money securities or other contracts to issue common shares were exercised or converted to common shares by assuming the proceeds received from the exercise of stock options and warrants are used to purchase common shares at the prevailing market price.
The following reflects the earnings and share data used in the basic and diluted income (loss) per share computations:
Three
months
ended December 31, 2020 |
Three months
ended December 31, 2019 |
|||||||
Net income (loss) for continuing operations | $ | 1,366 | $ | (3,778 | ) | |||
Net income (loss) for discontinued operations | - | (860 | ) | |||||
Basic weighted average number of shares | 28,177 | 20,897 | ||||||
Diluted weighted average number of shares | 30,466 | 20,897 | ||||||
Basic – continuing operations | $ | 0.05 | $ | (0.18 | ) | |||
Diluted – continuing operations | 0.04 | (0.18 | ) | |||||
Basic-discontinued operations | - | (0.04 | ) | |||||
Diluted-discontinued operations | - | (0.04 | ) | |||||
Total Basic | 0.05 | (0.22 | ) | |||||
Total Diluted | 0.04 | (0.22 | ) |
The effect of instruments exercisable or convertible to common shares for the quarter ended December 31, 2019 were excluded from the calculation of diluted loss per share because their effect is anti-dilutive.
16. | Related party transactions |
The Company has six market rate leases for office, warehouse, and retail space with a rental Company affiliated with the Company’s Chief Executive Officer, the majority of which were entered into in 2015. The leases have a combined area of 74,520 square feet. Lease payments under these leases are approximately $52,000 per month, plus taxes, utilities, and maintenance.
Expense for Board of Directors’ fees was $45,000 and $43,000 or the three months ended December 31, 2020 and 2019, respectively. Stock-based compensation for the Board of Directors was $4,000 for the three months ended December 31, 2020.
Key management personnel also participate in the Company’s share option program (see Note 8). The Company paid or accrued compensation to key management personnel the following:
Three months ended
December 31, 2020 |
Three months ended
December 31, 2019 |
|||||||
Salaries and Benefits | $ | 227 | $ | 196 | ||||
Stock-based compensation | - | - | ||||||
Total | $ | 227 | $ | 196 |
17. | Discontinued Operations |
On July 29, 2019, the Company sold the assets of Patient Home Monitoring, Inc. The consolidated financial statements and the notes reflect the Patient Home Monitoring, Inc. as discontinued operations. During the year ended September 30, 2020, there were ongoing litigation matters involving Patient Home Monitoring, Inc. that resulted in loss from discontinued operations, as reflected in the following table for the three months ended December 31, 2019.
Page | 22
QUIPT HOME MEDICAL CORP. (Formerly, PROTECH HOME MEDICAL CORP.)
NOTES TO THE AMENDED AND RESTATED CONDENSED CONSOLIDATED INTERIM FINANCIAL STATEMENTS
Three months ended December 31, 2020 and 2019
(UNAUDITED)
(Tabular dollar amounts expressed in thousands of US Dollars, except per share amounts)
Three months ended
December 31, 2020 |
Three months ended
December 31, 2019 |
|||||||
Operating expenses | - | (860 | ) | |||||
Net (loss) income from discontinued operations | $ | - | $ | (860 | ) |
For the periods ended December 31, 2020 and 2019, Patient Home Monitoring, Inc. was classified as a discontinued operation. There are ongoing litigation matters involving Patient Home Monitoring, Inc. During the period ended December 31, 2019, the Company accrued $860,000 for defense and settlement costs. One of the matters was resolved in the second quarter of fiscal year 2020 and the other matter reached a settlement in principle, but was not formally finalized, in the fourth quarter of fiscal year 2020. These matters are directly related to the operations of the disposed business, and as such, are reflected as discontinued operations. As of December 31, 2020, $496,000 relating to above discontinued operations were included in accrued liabilities.
18. | Subsequent Events |
Mayhugh Drugs, Inc., dba Mayhugh’s Medical
Effective February 1, 2021, the Company, through PHM Logistics Corporation, entered into a purchase agreement to acquire Mayhugh Drugs, Inc., (“Mayhugh”) a Florida company. The purchase price was $1,722,000, of which $1,047,000 was paid in cash at closing and $675,000 to be paid in cash upon the resolution of post-closing adjustments, if any.
Pro forma three-month Mayhugh revenues and net income had the acquisition occurred October 1, 2020 would have been $1,389,000 and $354,000, respectively.
19. | Restatement |
For comparative purposes, the consolidated statements of financial position as at September 30, 2020 and October 1, 2019 include adjustments to reflect the change in accounting policy resulting from the change in the presentation currency to the US dollar The amounts previously reported in Canadian dollars as shown below have been translated into US dollars as at September 30, 2020 and October 1, 2019 exchange rate of 1.3339 US$:C$ and 1.3242 US$:C$, respectively.
Condensed consolidated interim statement of financial position as at September 30, 2020
Previously
Reported in C$ |
As Restated
in US$ |
|||||||
Current assets | $ | 60,402 | $ | 45,283 | ||||
Long-term assets | 35,733 | 26,782 | ||||||
Total assets | 96,135 | 72,065 | ||||||
Current liabilities | 32,526 | 24,385 | ||||||
Long-term liabilities | 25,938 | 19,445 | ||||||
Total liabilities | 58,464 | 43,830 | ||||||
Shareholders’ equity | 37,671 | 28,235 | ||||||
Total liabilities and shareholders’ equity | 96,135 | 72,065 |
Condensed consolidated interim statement of financial position as at October 1, 2019
Previously
Reported in C$ |
As Restated
in US$ |
|||||||
Current assets | $ | 30,783 | $ | 23,247 | ||||
Long-term assets | 24,382 | 18,412 | ||||||
Total assets | 55,165 | 41,659 | ||||||
Current liabilities | 21,081 | 15,919 | ||||||
Long-term liabilities | 16,839 | 12,717 | ||||||
Total liabilities | 37,920 | 28,636 | ||||||
Shareholder’s equity | 17,245 | 13,023 | ||||||
Total liabilities and shareholders’ equity | 55,165 | 41,659 |
Page | 23
QUIPT HOME MEDICAL CORP. (Formerly, PROTECH HOME MEDICAL CORP.)
NOTES TO THE AMENDED AND RESTATED CONDENSED CONSOLIDATED INTERIM FINANCIAL STATEMENTS
Three months ended December 31, 2020 and 2019
(UNAUDITED)
(Tabular dollar amounts expressed in thousands of US Dollars, except per share amounts)
The consolidated statements of income (loss) and comprehensive income (loss) and statement of cash flows have been translated at an exchange rate of approximately 1.3199 C$/US$ for the three months ended December 31, 2019.
Condensed consolidated interim statement of loss for the three months ended December 31, 2019
Previously
Reported in C$ |
As Restated
in US$ |
|||||||
Total Revenue | $ | 21,846 | $ | 16,565 | ||||
Income (loss) from continuing operations before financing and taxes | (3,173 | ) | (2,360 | ) | ||||
Income (loss) from continuing operations before taxes | (4,507 | ) | (3,778 | ) | ||||
Income (loss) from continuing operations | (4,507 | ) | (3,778 | ) | ||||
Net income (loss) and comprehensive income (loss) | (6,203 | ) | (4,638 | ) |
Condensed consolidated interim statement of cash flows for the three months ended December 31, 2019
Previously
Reported in C$ |
As Restated
in US$ |
|||||||
Net loss from continuing operations | $ | (4,507 | ) | (3,778 | ) | |||
Net loss from discontinuing operations | (1,158 | ) | (860 | ) | ||||
Net cash flows provided by operating activities | 4,749 | 3,597 | ||||||
Net cash flows provided by investing activities | (4,374 | ) | (3,314 | ) | ||||
Net cash flow received (used in) financing activities | (5,250 | ) | (3,803 | ) | ||||
Net increase (decrease) in cash | (4,875 | ) | (3,520 | ) |
Subsequent to the initial filing of the condensed consolidated interim financial statements for the three months ended December 31, 2020, the Company identified and recognized adjustments to the preliminary purchase price allocation for the acquisition of Sleepwell, as follows:
Condensed consolidated interim statement of financial position as at December 31, 2020
Previously Reported | Adjustments | As Restated | ||||||||||
Accounts receivable, net | $ | 9,393 | $ | (338 | ) | $ | 9,055 | |||||
Inventory | 7,807 | 315 | 8,122 | |||||||||
Prepaid and other current assets | 460 | 2 | 462 | |||||||||
Total current assets | 41,253 | (21 | ) | 41,232 | ||||||||
Property and equipment, net | 17,988 | (191 | ) | 17,797 | ||||||||
Goodwill | 13,343 | (5,381 | ) | 7,962 | ||||||||
Intangible assets, net | 5,370 | 5,304 | 10,674 | |||||||||
Deposits | 86 | 1 | 87 | |||||||||
Total long-term assets | 37,309 | (267 | ) | 37,042 | ||||||||
Total assets | 78,562 | (288 | ) | 78,274 | ||||||||
Accounts payable | 7,642 | (145 | ) | 7,497 | ||||||||
Current portion of leases | 2,333 | 29 | 2,362 | |||||||||
Accrued liabilities | 2,164 | (42 | ) | 2,122 | ||||||||
Government grant | 3,308 | (1,417 | ) | 1,891 | ||||||||
Purchase price payable in shares | 4,426 | (4,426 | ) | - | ||||||||
Purchase price payable | 1,196 | (30 | ) | 1,166 | ||||||||
Total current liabilities | 29,525 | (6,031 | ) | 23,494 | ||||||||
Lease liabilities | 3,686 | 18 | 3,704 | |||||||||
Government grant | 1,577 | 1,417 | 2,994 | |||||||||
Total Liabilities | 49,584 | (4,596 | ) | 44,988 | ||||||||
Share capital | 168,874 | 3,316 | 172,190 | |||||||||
Contributed surplus | 16,515 | 267 | 16,782 | |||||||||
Shares to be issued | - | 3,033 | 3,033 | |||||||||
Accumulated deficit | (166,325 | ) | 7,606 | (158,719 | ) | |||||||
Accumulated other comprehensive income | 9,914 | (9,914 | ) | - | ||||||||
Total shareholders’ equity | 28,978 | 4,308 | 33,286 | |||||||||
Total liabilities and equity | 78,562 | (288 | ) | 78,274 |
Page | 24
QUIPT HOME MEDICAL CORP. (Formerly, PROTECH HOME MEDICAL CORP.)
NOTES TO THE AMENDED AND RESTATED CONDENSED CONSOLIDATED INTERIM FINANCIAL STATEMENTS
Three months ended December 31, 2020 and 2019
(UNAUDITED)
(Tabular dollar amounts expressed in thousands of US Dollars, except per share amounts)
Condensed consolidated interim statement of loss for the three months ended December 31, 2020
Previously Reported | Adjustments | As Restated | ||||||||||
Depreciation | $ | 3,095 | $ | 271 | $ | 3,366 | ||||||
Amortization of intangible assets | 209 | 106 | 315 | |||||||||
Operating income (loss) from continuing operations | 1,807 | (377 | ) | 1,430 | ||||||||
Loss on foreign currency transactions | - | 2 | 2 | |||||||||
Loss on fair value of purchase price payable in shares | 108 | (108 | ) | - | ||||||||
Income (loss) before taxes from continuing operations | 229 | (270 | ) | (41 | ) | |||||||
Provision for income taxes | - | (1,407 | ) | (1,407 | ) | |||||||
Net income (loss) from continuing operations | 229 | 1,137 | 1,366 | |||||||||
Cumulative translation adjustment | (139 | ) | 139 | - | ||||||||
Net income (loss) and comprehensive income (loss) | 90 | 1,276 | 1,366 |
Condensed consolidated interim statement of cash flows for the three months ended December 31, 2020
Previously
Reported |
Adjustments | As Restated | ||||||||||
Net loss from continuing operations | $ | 229 | $ | 1,137 | $ | 1,366 | ||||||
Depreciation and amortization | 3,304 | 377 | 3,681 | |||||||||
Loss on foreign currency transactions | - | 2 | 2 | |||||||||
Loss on fair value of purchase price payable in shares | 108 | (108 | ) | - | ||||||||
Inventory reserve adjustment | - | 540 | 540 | |||||||||
Net increase (decrease) in inventory | (939 | ) | (540 | ) | (1,479 | ) | ||||||
Net increase (decrease) in accounts payables and accrued liabilities | (1,981 | ) | (1,158 | ) | (3,139 | ) | ||||||
Net cash flows provided by operating activities | 2,840 | 250 | 3,090 | |||||||||
Payments of purchase price payable | - | (250 | ) | (250 | ) | |||||||
Net cash flow used in investing activities | $ | (2,323 | ) | $ | (250 | ) | $ | (2,573 | ) |
Note 3 acquisition of businesses and purchase accounting
Line items adjusted on the net assets acquired of Sleepwell are as follows:
Previously Reported | Adjustments | As Restated | ||||||||||
Accounts receivable | $ | 1,118 | $ | (338 | ) | $ | 780 | |||||
Inventory | 454 | 315 | 769 | |||||||||
Prepaid expenses and other current assets | - | 2 | 2 | |||||||||
Property and equipment | 850 | 110 | 960 | |||||||||
Right of use real estate | 343 | (30 | ) | 313 | ||||||||
Goodwill | 9,447 | (5,380 | ) | 4,067 | ||||||||
Intangible asset – Non-compete | - | 220 | 220 | |||||||||
Intangible asset – Trade name | - | 520 | 520 | |||||||||
Intangible asset – Customer relationships | - | 4,670 | 4,670 | |||||||||
Accounts payable | (785 | ) | 145 | (640 | ) | |||||||
Accrued payroll | - | (166 | ) | (166 | ) | |||||||
Lease liabilities | (343 | ) | (47 | ) | (390 | ) | ||||||
Deferred tax liability | - | (1,407 | ) | (1,407 | ) | |||||||
Net assets acquired | 11,362 | (1,386 | ) | 9,976 | ||||||||
Stock paid in January 2021 | 3,008 | (632 | ) | 2,376 | ||||||||
Cash to be paid after closing | 557 | (237 | ) | 320 | ||||||||
Stock to be issued after closing | 1,174 | (517 | ) | 657 | ||||||||
Consideration paid or payable | $ | 11,362 | $ | (1,386 | ) | $ | 9,976 |
Page | 25
QUIPT HOME MEDICAL CORP. (Formerly, PROTECH HOME MEDICAL CORP.)
NOTES TO THE AMENDED AND RESTATED CONDENSED CONSOLIDATED INTERIM FINANCIAL STATEMENTS
Three months ended December 31, 2020 and 2019
(UNAUDITED)
(Tabular dollar amounts expressed in thousands of US Dollars, except per share amounts)
Condensed consolidated interim statement of loss for the three months ended December 31, 2019
Previously Reported | Adjustments | As Restated | ||||||||||
Sales of medical equipment and supplies | $ | 7,472 | $ | (375 | ) | $ | 7,097 | |||||
Rentals of medical equipment | 9,779 | (311 | ) | 9,468 | ||||||||
Total revenue | 17,251 | (686 | ) | 16,565 | ||||||||
Inventory sold | 4,379 | 216 | 4,595 | |||||||||
Operating expenses | 9,696 | 1,201 | 10,897 | |||||||||
Depreciation | 3,448 | (75 | ) | 3,373 | ||||||||
Amortization of intangible assets | 181 | 14 | 195 | |||||||||
Operating income (loss) from continuing operations | (318 | ) | (2,042 | ) | (2,360 | ) | ||||||
Loss on foreign currency transactions | - | 408 | 408 | |||||||||
Income (loss) before taxes from continuing operations | (1,328 | ) | (2,450 | ) | (3,778 | ) | ||||||
Net income (loss) from continuing operations | (1,328 | ) | (2,450 | ) | (3,778 | ) | ||||||
Income (loss) from discontinued operations | - | (860 | ) | (860 | ) | |||||||
Net income (loss) and comprehensive income (loss) | - | (4,638 | ) | (4,638 | ) | |||||||
Cumulative translation adjustment | (408 | ) | 408 | - |
Condensed consolidated interim statement of cash flows for the three months ended December 31, 2019
Previously
Reported |
Adjustments | As Restated | ||||||||||
Net loss from continuing operations | $ | (1,328 | ) | $ | (2,450 | ) | $ | (3,778 | ) | |||
Net loss from discontinued operations | - | (860 | ) | (860 | ) | |||||||
Depreciation and amortization | 3,629 | (61 | ) | 3,568 | ||||||||
Loss on foreign currency transactions | - | 408 | 408 | |||||||||
Bad debt expense | 1,503 | 1,201 | 2,704 | |||||||||
Inventory reserve adjustment | - | 49 | 49 | |||||||||
Net increase (decrease) in accounts receivable | (507 | ) | 865 | 358 | ||||||||
Net increase (decrease) in inventory | (405 | ) | 167 | (238 | ) | |||||||
Net increase (decrease) in deferred revenue | - | 681 | 681 | |||||||||
Effect of exchange rate changes on cash held in foreign currencies | 117 | 31 | 148 |
Page | 26
Exhibit 99.117
FORM 52-109F2R
CERTIFICATION OF RE-FILED INTERIM FILINGS
VENTURE ISSUER BASIC CERTIFICATE
This certificate is being filed on the same date that Quipt Home Medical Corp. (formerly Protech Home Medical Corp.) has refiled its interim financial report and interim MD&A for the period ended December 31, 2020.
I, Gregory Crawford, as Chief Executive Officer of Quipt Home Medical Corp., certify the following:
1. Review: I have reviewed the amended interim financial report and amended interim MD&A (together, the “amended interim filings”) of Quipt Home Medical Corp. (the “issuer”) for the interim period ended December 31, 2020.
2. No misrepresentations: Based on my knowledge, having exercised reasonable diligence, the amended interim filings do not contain any untrue statement of a material fact or omit to state a material fact required to be stated or that is necessary to make a statement not misleading in light of the circumstances under which it was made, with respect to the period covered by the amended interim filings.
3. Fair presentation: Based on my knowledge, having exercised reasonable diligence, the amended interim financial report together with the other financial information included in the amended interim filings fairly present in all material respects the financial condition, financial performance and cash flows of the issuer, as of the date of and for the periods presented in the amended interim filings.
Dated: May 13, 2021
(signed) “Gregory Crawford”
Gregory Crawford
Chief Executive Officer
NOTE TO READER
In contrast to the certificate required for non-venture issuers under National Instrument 52-109 Certification of Disclosure in Issuers’ Annual and Interim Filings (NI 52-109), this Venture Issuer Basic Certificate does not include representations relating to the establishment and maintenance of disclosure controls and procedures (DC&P) and internal control over financial reporting (ICFR), as defined in NI 52-109. In particular, the certifying officers filing this certificate are not making any representations relating to the establishment and maintenance of
i. controls and other procedures designed to provide reasonable assurance that information required to be disclosed by the issuer in its annual filings, interim filings or other reports filed or submitted under securities legislation is recorded, processed, summarized and reported within the time periods specified in securities legislation; and
ii. a process to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with the issuer’s GAAP.
The issuer’s certifying officers are responsible for ensuring that processes are in place to provide them with sufficient knowledge to support the representations they are making in this certificate. Investors should be aware that inherent limitations on the ability of certifying officers of a venture issuer to design and implement on a cost effective basis DC&P and ICFR as defined in NI 52-109 may result in additional risks to the quality, reliability, transparency and timeliness of interim and annual filings and other reports provided under securities legislation.
|
Exhibit 99.118
FORM 52-109F2R
CERTIFICATION OF RE-FILED INTERIM FILINGS
VENTURE ISSUER BASIC CERTIFICATE
This certificate is being filed on the same date that Quipt Home Medical Corp. (formerly Protech Home Medical Corp.) has refiled its interim financial report and interim MD&A for the period ended December 31, 2020.
I, Hardik Mehta, as Chief Financial Officer of Quipt Home Medical Corp., certify the following:
1. Review: I have reviewed the amended interim financial report and amended interim MD&A (together, the “amended interim filings”) of Quipt Home Medical Corp. (the “issuer”) for the interim period ended December 31, 2020.
2. No misrepresentations: Based on my knowledge, having exercised reasonable diligence, the amended interim filings do not contain any untrue statement of a material fact or omit to state a material fact required to be stated or that is necessary to make a statement not misleading in light of the circumstances under which it was made, with respect to the period covered by the amended interim filings.
3. Fair presentation: Based on my knowledge, having exercised reasonable diligence, the amended interim financial report together with the other financial information included in the amended interim filings fairly present in all material respects the financial condition, financial performance and cash flows of the issuer, as of the date of and for the periods presented in the amended interim filings.
Dated: May 13, 2021
(signed) “Hardik Mehta”
Hardik Mehta
Chief Financial Officer
NOTE TO READER
In contrast to the certificate required for non-venture issuers under National Instrument 52-109 Certification of Disclosure in Issuers’ Annual and Interim Filings (NI 52-109), this Venture Issuer Basic Certificate does not include representations relating to the establishment and maintenance of disclosure controls and procedures (DC&P) and internal control over financial reporting (ICFR), as defined in NI 52-109. In particular, the certifying officers filing this certificate are not making any representations relating to the establishment and maintenance of
i. | controls and other procedures designed to provide reasonable assurance that information required to be disclosed by the issuer in its annual filings, interim filings or other reports filed or submitted under securities legislation is recorded, processed, summarized and reported within the time periods specified in securities legislation; and |
ii. | a process to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with the issuer’s GAAP. |
The issuer’s certifying officers are responsible for ensuring that processes are in place to provide them with sufficient knowledge to support the representations they are making in this certificate. Investors should be aware that inherent limitations on the ability of certifying officers of a venture issuer to design and implement on a cost effective basis DC&P and ICFR as defined in NI 52-109 may result in additional risks to the quality, reliability, transparency and timeliness of interim and annual filings and other reports provided under securities legislation.
Exhibit 99.119
Consent of Independent Registered Public Accounting Firm
The Board of Directors
Quipt Home Medical Corp.
The undersigned hereby consents to the inclusion or incorporation by reference into this Registration Statement on Form 40-F (the “Form 40-F”) of Quipt Home Medical Corp. (formerly, Protech Home Medical Corp.) (the "Company") being filed with the United States Securities and Exchange Commission, and any amendments thereto, of:
1. | its report, dated January 31, 2021, on the consolidated statements of financial position as at September 30, 2020 and September 30, 2019, and the consolidated statements of operations and comprehensive loss, changes in equity and cash flows for the years then ended; and | |
2. | its report, dated January 28, 2020, on the consolidated statements of financial position as at September 30, 2019 and September 30, 2018, and the consolidated statements of operations and comprehensive loss, changes in equity and cash flows for the years then ended. |
The undersigned further consents to reference of the undersigned's name in the Form 40-F, in the Annual Information Form of the Company for the fiscal year ended September 30, 2020 and the Annual Information Form of the Company for the fiscal year ended September 30, 2019 included in or incorporated by reference into the Form 40-F.
|
|
Toronto, Ontario | Chartered Professional Accountants |
May 14, 2021 | Licensed Public Accountants |