UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 10-Q
x | QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15 (d) OF THE SECURITIES EXCHANGE ACT OF 1934 |
For the quarterly period ended January 31, 2009
OR
¨ | TRANSITION REPORT PURSUANT TO SECTION 13 OR 15 (d) OF THE SECURITIES EXCHANGE ACT OF 1934 |
For the transition period from to
Commission File Number 0-6715
ANALOGIC CORPORATION
(Exact name of registrant as specified in its charter)
Massachusetts | 04-2454372 | |
(State or other jurisdiction of incorporation or organization) |
(I.R.S. Employer Identification No.) |
|
8 Centennial Drive, Peabody, Massachusetts | 01960 | |
(Address of principal executive offices) | (Zip Code) |
(978) 326-4000
(Registrants telephone number, including area code)
(Former name, former address and former fiscal year, if changed since last report.)
Indicate by check mark whether the registrant (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days. Yes x No ¨
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company. See the definitions of large accelerated filer, accelerated filer and smaller reporting company in Rule 12b-2 of the Exchange Act.
Large accelerated filer x |
Accelerated filer ¨ |
Non-accelerated filer ¨ |
Smaller reporting company ¨ |
|||
(Do not check if a smaller
reporting company) |
Indicate by check mark whether the registrant is a shell company (as defined in Rule 12b-2 of the Exchange Act.) Yes ¨ No x
The number of shares of Common Stock outstanding at February 27, 2009 was 12,798,931.
ANALOGIC CORPORATION
Page No. | ||||
Part I. Financial Information |
||||
Item 1. |
Financial Statements |
|||
Unaudited Consolidated Balance Sheets as of January 31, 2009 and July 31, 2008 |
3 | |||
4 | ||||
Unaudited Consolidated Statements of Cash Flows for the Six Months Ended January 31, 2009 and 2008 |
5 | |||
6 | ||||
Item 2. |
Managements Discussion and Analysis of Financial Condition and Results of Operations |
22 | ||
Item 3. |
32 | |||
Item 4. |
32 | |||
Part II. Other Information |
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Item 1A. |
33 | |||
Item 2. |
38 | |||
Item 4. |
38 | |||
Item 6. |
39 | |||
40 | ||||
41 |
Part I. FINANCIAL INFORMATION
Item 1. | Financial Statements |
CONSOLIDATED BALANCE SHEETS
(Unaudited)
(In thousands, except per share data)
January 31,
2009 |
July 31,
2008 |
|||||
Assets | ||||||
Current assets: |
||||||
Cash and cash equivalents |
$ | 82,148 | $ | 173,912 | ||
Marketable securities, at fair value |
65,700 | 12,530 | ||||
Accounts receivable, net of allowance for doubtful accounts of $671 and $998 at January 31, 2009 and July 31, 2008, respectively |
62,126 | 66,573 | ||||
Inventories |
81,648 | 79,197 | ||||
Refundable and deferred income taxes |
14,865 | 17,429 | ||||
Other current assets |
11,555 | 11,285 | ||||
Total current assets |
318,042 | 360,926 | ||||
Property, plant, and equipment, net |
83,383 | 90,405 | ||||
Capitalized software, net |
4,725 | 4,422 | ||||
Intangible assets, net |
42,242 | 44,574 | ||||
Goodwill |
2,418 | 3,534 | ||||
Other assets |
237 | 1,396 | ||||
Deferred income tax assets |
6,856 | 5,908 | ||||
Total Assets |
$ | 457,903 | $ | 511,165 | ||
Liabilities and Stockholders Equity | ||||||
Current liabilities: |
||||||
Accounts payable |
$ | 24,437 | $ | 28,329 | ||
Accrued liabilities |
25,168 | 34,552 | ||||
Advance payments and deferred revenue |
10,943 | 10,785 | ||||
Total current liabilities |
60,548 | 73,666 | ||||
Long-term liabilities: |
||||||
Accrued income taxes |
6,810 | 7,365 | ||||
Other long-term liabilities |
415 | 686 | ||||
Deferred income tax liabilities |
348 | 942 | ||||
Total long-term liabilities |
7,573 | 8,993 | ||||
Commitments and guarantees (Note 15) |
||||||
Stockholders equity: |
||||||
Common stock, $.05 par value |
640 | 672 | ||||
Capital in excess of par value |
69,537 | 70,593 | ||||
Retained earnings |
316,641 | 338,669 | ||||
Accumulated other comprehensive income |
2,964 | 18,572 | ||||
Total stockholders equity |
389,782 | 428,506 | ||||
Total Liabilities and Stockholders Equity |
$ | 457,903 | $ | 511,165 | ||
The accompanying notes are an integral part of these unaudited consolidated financial statements.
3
CONSOLIDATED STATEMENTS OF OPERATIONS
(Unaudited)
(In thousands, except per share data)
Three Months Ended
January 31, |
Six Months Ended
January 31, |
|||||||||||||
2009 | 2008 | 2009 | 2008 | |||||||||||
Net revenue: |
||||||||||||||
Product |
$ | 94,444 | $ | 94,231 | $ | 189,391 | $ | 179,542 | ||||||
Engineering |
6,208 | 2,729 | 9,701 | 8,244 | ||||||||||
Other |
2,063 | 2,440 | 5,175 | 5,815 | ||||||||||
Total net revenue |
102,715 | 99,400 | 204,267 | 193,601 | ||||||||||
Cost of sales: |
||||||||||||||
Product |
61,822 | 57,175 | 127,100 | 109,224 | ||||||||||
Engineering |
6,293 | 3,120 | 9,483 | 8,576 | ||||||||||
Other |
1,697 | 1,765 | 3,486 | 3,644 | ||||||||||
Total cost of sales |
69,812 | 62,060 | 140,069 | 121,444 | ||||||||||
Gross margin |
32,903 | 37,340 | 64,198 | 72,157 | ||||||||||
Operating expenses: |
||||||||||||||
Research and product development |
11,358 | 11,858 | 23,925 | 23,040 | ||||||||||
Selling and marketing |
9,728 | 7,985 | 19,412 | 15,787 | ||||||||||
General and administrative |
9,836 | 9,696 | 20,464 | 19,136 | ||||||||||
Restructuring charge |
3,488 | | 3,488 | | ||||||||||
Total operating expenses |
34,410 | 29,539 | 67,289 | 57,963 | ||||||||||
Income (loss) from operations |
(1,507 | ) | 7,801 | (3,091 | ) | 14,194 | ||||||||
Other income: |
||||||||||||||
Interest income, net |
767 | 2,484 | 1,775 | 5,187 | ||||||||||
Other |
464 | 421 | 897 | 860 | ||||||||||
Total other income |
1,231 | 2,905 | 2,672 | 6,047 | ||||||||||
Income (loss) before income taxes |
(276 | ) | 10,706 | (419 | ) | 20,241 | ||||||||
Provision (benefit) for income taxes |
(1,695 | ) | 3,559 | (2,158 | ) | 6,706 | ||||||||
Net income |
$ | 1,419 | $ | 7,147 | $ | 1,739 | $ | 13,535 | ||||||
Net income per share: |
||||||||||||||
Basic |
$ | 0.11 | $ | 0.54 | $ | 0.13 | $ | 1.03 | ||||||
Diluted |
$ | 0.11 | $ | 0.54 | $ | 0.13 | $ | 1.02 | ||||||
Weighted-average shares outstanding: |
||||||||||||||
Basic |
12,829 | 13,174 | 13,030 | 13,133 | ||||||||||
Diluted |
12,876 | 13,271 | 13,125 | 13,245 |
The accompanying notes are an integral part of these unaudited consolidated financial statements.
4
CONSOLIDATED STATEMENTS OF CASH FLOWS
(Unaudited)
(In thousands)
Six Months Ended
January 31, |
||||||||
2009 | 2008 | |||||||
OPERATING ACTIVITIES: |
||||||||
Net income |
$ | 1,739 | $ | 13,535 | ||||
Adjustments to reconcile net income to net cash provided by (used in) operating activities: |
||||||||
Provision for (benefit from) deferred income taxes |
(2,104 | ) | 3,255 | |||||
Depreciation and amortization |
8,907 | 6,576 | ||||||
Allowance for (recoveries of) doubtful accounts and notes receivable |
131 | (496 | ) | |||||
Gain on sale of other investments |
| (84 | ) | |||||
Net gain on sale of property, plant, and equipment |
(19 | ) | (20 | ) | ||||
Share-based compensation expense |
2,698 | 1,467 | ||||||
Excess tax provision (benefit) from share-based compensation |
13 | (189 | ) | |||||
Restructuring charge |
3,488 | | ||||||
Net changes in operating assets and liabilities (Note 12) |
(15,483 | ) | (4,657 | ) | ||||
NET CASH PROVIDED BY (USED FOR) OPERATING ACTIVITES |
(630 | ) | 19,387 | |||||
INVESTING ACTIVITIES: |
||||||||
Additions to property, plant, and equipment |
(6,065 | ) | (6,365 | ) | ||||
Capitalized software development costs |
(1,183 | ) | (1,032 | ) | ||||
Purchase of short-term held-to-maturity marketable securities |
(115,957 | ) | (93,525 | ) | ||||
Maturities of short-term held-to-maturity marketable securities |
62,787 | 37,997 | ||||||
Maturities of long-term available-for-sale marketable securities |
| 2,000 | ||||||
Proceeds from the sale of other investments |
| 84 | ||||||
Proceeds from the sale of property, plant, and equipment |
25 | 104 | ||||||
Investments in and advances to affiliated companies |
(2 | ) | | |||||
NET CASH USED FOR INVESTING ACTIVITIES |
(60,395 | ) | (60,737 | ) | ||||
FINANCING ACTIVITIES: |
||||||||
Issuance of stock pursuant to exercise of stock options and employee stock purchase plan |
136 | 1,734 | ||||||
Excess tax provision (benefit) from share-based compensation |
(13 | ) | 189 | |||||
Purchase of common stock |
(25,022 | ) | | |||||
Dividends paid to shareholders |
(2,656 | ) | (2,660 | ) | ||||
NET CASH USED FOR FINANCING ACTIVITIES |
(27,555 | ) | (737 | ) | ||||
EFFECT OF EXCHANGE RATE CHANGES ON CASH |
(3,184 | ) | 525 | |||||
NET DECREASE IN CASH AND CASH EQUIVALENTS |
$ | (91,764 | ) | $ | (41,562 | ) | ||
CASH AND CASH EQUIVALENTS, BEGINNING OF PERIOD |
173,912 | 226,545 | ||||||
CASH AND CASH EQUIVALENTS, END OF PERIOD |
$ | 82,148 | $ | 184,983 | ||||
Supplemental disclosures of cash flow information: |
||||||||
Refunds received (cash paid) for income taxes, net |
$ | 4,951 | $ | (4,181 | ) | |||
Interest paid |
| (12 | ) |
The accompanying notes are an integral part of these unaudited consolidated financial statements.
5
ANALOGIC CORPORATION
NOTES TO UNAUDITED CONSOLIDATED FINANCIAL STATEMENTS
(Dollars in thousands, except share and per share data)
1. Basis of presentation:
Company
Analogic Corporation and its subsidiaries (Analogic or the Company) are engaged primarily in the design, manufacture, and sale of high performance data acquisition and signal processing instruments to Original Equipment Manufacturers (OEMs) for use in advanced health and security systems and subsystems. One of Analogics subsidiaries sells products under its own name directly to niche clinical ultrasound end-user markets. Analogics top ten customers combined for approximately 68% and 67% of the Companys total product and engineering revenue for the three months ended January 31, 2009 and 2008, respectively, and 69% and 68% for the six months ended January 31, 2009 and 2008, respectively. Two customers, Philips and Toshiba, also accounted for 16% and 12%, respectively, of net accounts receivable at January 31, 2009.
The consolidated financial statements include the accounts of the Company and its subsidiaries, all of which are wholly owned. Investments in companies in which ownership interests range from 20% to 50% and the Company exercises significant influence over operating and financial policies, are accounted for using the equity method. Other investments are accounted for using the cost method.
General
The unaudited consolidated financial statements of the Company presented herein have been prepared pursuant to the rules of the United States Securities and Exchange Commission (the SEC) for quarterly reports on Form 10-Q and do not include all of the information and note disclosures required by accounting principles generally accepted in the United States of America (GAAP) for complete financial statements. Preparing financial statements requires management to make estimates and assumptions that affect the reported amounts of assets, liabilities, revenue, and expenses. In the opinion of management, the accompanying unaudited consolidated financial statements contain all adjustments (consisting solely of normal recurring adjustments) necessary for a fair statement of the results for all interim periods presented. The results of operations for the three and six months ended January 31, 2009 are not necessarily indicative of the results to be expected for the fiscal year ending July 31, 2009 (fiscal year 2009), or any other interim period. These statements should be read in conjunction with the consolidated financial statements and notes thereto for the fiscal year ended July 31, 2008 (fiscal year 2008) included in the Companys Annual Report on Form 10-K as filed with the SEC on September 29, 2008. The accompanying Consolidated Balance Sheet as of July 31, 2008 contains data derived from audited financial statements.
2. Recent accounting pronouncements:
The Company adopted Statement of Financial Accounting Standards (SFAS) No. 157, Fair Value Measurements , on August 1, 2008. SFAS No. 157 defines fair value, establishes a methodology for measuring fair value and expands the required disclosure for fair value measurements. During calendar year 2008, the Financial Accounting Standards Board (FASB) issued the following amendments to SFAS No. 157:
|
FASB Staff Position (FSP) No. FAS 157-1, Application of FASB Statement No. 157 to FASB Statement No. 13 and Other Accounting Pronouncements That Address Fair Value Measurements for Purposes of Lease Classification or Measurement under Statement 13 , amends SFAS No. 157 to remove certain leasing transactions from its scope. |
|
FSP No. FAS 157-2, Effective Date of FASB Statement No. 157 , delays the effective date of SFAS No. 157 from fiscal year 2008 to the fiscal year ending July 31, 2010 for non-financial assets and non-financial liabilities, except for items that are recognized or disclosed at fair value in the financial statements on a recurring basis (at least annually). The Company is currently evaluating the potential impact of SFAS No. 157 for non-financial assets and non-financial liabilities on its financial position and results of operations. |
|
FSP No. FAS 157-3, Determining the Fair Value of a Financial Asset When the Market for That Asset Is Not Active , clarifies the application of SFAS No. 157 in a market that is not active and provides an example to illustrate key considerations in determining the fair value of a financial asset when the market for that financial asset is not active. FSP No. FAS 157-3 was effective upon issuance on October 10, 2008, including for prior periods for which financial statements have not been issued. |
6
ANALOGIC CORPORATION
NOTES TO UNAUDITED CONSOLIDATED FINANCIAL STATEMENTS
(Continued)
The Company adopted FSP No. FAS 157-1 and FSP No. FAS 157-3 in the first quarter of fiscal year 2009 concurrent with the adoption of SFAS No. 157. The adoption of SFAS No. 157, as amended, did not have an impact on the Companys financial position or results of operations. See Note 4 for additional SFAS No. 157 disclosures.
In February 2007, the FASB issued SFAS No. 159, The Fair Value Option for Financial Assets and Financial Liabilities-including an amendment of SFAS No. 115 . The new statement allows entities to choose, at specified election dates, to measure eligible financial assets and liabilities at fair value that are not otherwise required to be measured at fair value. If a company elects the fair value option for an eligible item, changes in that items fair value in subsequent reporting periods must be recognized in current earnings. The Company adopted SFAS No. 159 on August 1, 2008 concurrent with its adoption of SFAS No. 157. The adoption of SFAS No. 159 did not have an impact on the Companys financial position or results of operations.
In December 2007, the FASB issued SFAS No. 141(R), Business Combinations . SFAS No. 141(R) requires the acquiring entity in a business combination to record all assets acquired and liabilities assumed at their respective acquisition date fair values, changes the recognition of assets acquired and liabilities assumed arising from contingencies, changes the recognition and measurement of contingent consideration, and requires the expensing of acquisition-related costs as incurred. SFAS No. 141(R) also requires additional disclosure of information surrounding a business combination, such that users of the entitys financial statements can fully understand the nature and financial impact of the business combination. SFAS No. 141(R) applies prospectively to business combinations for which the acquisition date is on or after the beginning of the first annual reporting period beginning on or after December 15, 2008, which will be the Companys fiscal year ending July 31, 2010. An entity may not apply it before that date. The provisions of SFAS No. 141(R) will only impact the Company if the Company is a party to a business combination after July 31, 2009.
In December 2007, the FASB issued SFAS No. 160, Noncontrolling Interests in Consolidated Financial Statementsan amendment of Accounting Research Bulletin No. 51 . SFAS No. 160 establishes accounting and reporting standards for ownership interests in subsidiaries held by parties other than the parent, the amount of consolidated net income attributable to the parent and to the noncontrolling interest, changes in a parents ownership interest, and the valuation of retained noncontrolling equity investments when a subsidiary is deconsolidated. SFAS No. 160 also establishes disclosure requirements that clearly identify and distinguish between the interests of the parent and the interests of the noncontrolling owners. This statement is effective for the Company beginning on August 1, 2009. The Company is currently evaluating the potential impact of the adoption of SFAS No. 160 on its consolidated financial position, results of operations, and cash flows.
In April 2008, the FASB issued FSP No. FAS 142-3, Determining the Useful Life of Intangible Assets . FSP No. FAS 142-3 amends the factors an entity should consider in developing renewal or extension assumptions used in determining the useful lives of recognized intangible assets. FSP No. FAS 142-3 is effective for fiscal years beginning after December 15, 2008. The Company does not believe the adoption of FSP No. FAS 142-3 will have a material impact on its consolidated results of operations, financial position, or cash flows.
In May 2008, the FASB issued SFAS No. 162, The Hierarchy of Generally Accepted Accounting Principles , which will provide a framework for selecting accounting principles to be used in preparing financial statements that are presented in conformity with GAAP for nongovernmental entities. Prior to the issuance of SFAS No. 162, the GAAP hierarchy was defined in the American Institute of Certified Public Accountants (AICPA) Statement on Auditing Standards No. 69, The Meaning of Present Fairly in Conformity With Generally Accepted Accounting Principles . With the issuance of SFAS No. 162, the GAAP hierarchy for nongovernmental entities will move from auditing literature to accounting literature. SFAS No. 162 became effective 60 days following the SECs approval on September 16, 2008 of the Public Company Accounting Oversight Board amendments to AU Section 411, The Meaning of Present Fairly in Conformity With Generally Accepted Accounting Principles . This statement became effective during the second quarter of fiscal year 2009 and did not have an impact on the Companys financial position or results of operations.
7
ANALOGIC CORPORATION
NOTES TO UNAUDITED CONSOLIDATED FINANCIAL STATEMENTS
(Continued)
In June 2008, the FASB issued FSP No. EITF 03-6-1, Determining Whether Instruments Granted in Share-Based Payment Transactions Are Participating Securities , which classifies unvested share-based payment awards that contain nonforfeitable rights to dividends or dividend equivalents (whether paid or unpaid) as participating securities and requires them to be included in the computation of earnings per share pursuant to the two-class method described in SFAS No. 128, Earnings per Share . This FSP is effective for financial statements issued for fiscal years beginning after December 15, 2008, and interim periods within those years. All prior-period earnings per share data presented are to be adjusted retrospectively (including interim financial statements, summaries of earnings, and selected financial data) to conform with the provisions of this FSP, with early application not permitted. The Company is currently evaluating the effect, if any, that the adoption of FSP No. EITF 03-6-1 will have on its financial position, results of operations and cash flows.
3. Share-based payment:
The Company accounts for share-based compensation expense in accordance with SFAS No. 123(R), Share-Based Payment, which establishes accounting for equity instruments exchanged for employee and director services. Under the provisions of SFAS No. 123(R), share-based compensation cost is measured at the grant date, based on the fair value of the award, and is recognized as an expense over the employees or directors requisite service period (generally the vesting period of the equity grant).
The following table presents share-based compensation expenses included in the Companys unaudited Consolidated Statements of Operations:
Three Months Ended
January 31, |
Six Months Ended
January 31, |
|||||||||||
2009 | 2008 | 2009 | 2008 | |||||||||
Cost of product sales |
$ | 64 | $ | 67 | $ | 145 | $ | 95 | ||||
Research and product development |
228 | 188 | 595 | 281 | ||||||||
Selling and marketing |
121 | 44 | 295 | | ||||||||
General and administrative |
623 | 770 | 1,663 | 1,091 | ||||||||
Share-based compensation expense before tax |
1,036 | 1,069 | 2,698 | 1,467 | ||||||||
Income tax effect |
152 | 240 | 620 | 362 | ||||||||
Net share-based compensation expense |
$ | 884 | $ | 829 | $ | 2,078 | $ | 1,105 | ||||
Beginning in fiscal year 2008, the Companys Compensation Committee (the Committee) began granting performance contingent restricted stock awards. From August 1, 2007 through January 31, 2009, the Committee granted awards for a target of 143,248 performance contingent restricted stock shares (performance awards) under the Companys 2007 Restricted Stock Plan, of which 2,744 shares have been forfeited. These shares will vest if specific pre-established levels of performance are achieved at the end of a three-year performance cycle, which is July 31, 2010 for 97,572 shares granted in fiscal year 2008 and July 31, 2011 for 42,932 shares granted in fiscal year 2009. The performance goal for the performance awards is based solely on the cumulative growth of an adjusted earnings per share metric. The actual number of shares to be issued will be determined at the end of each three-year performance cycle and can range from zero to, in most cases, 200% of the target award, or up to 273,869 shares. The actual number of shares to be issued will also include the payment of dividends on the actual number of shares earned. The maximum compensation expense for the performance awards is $16,348 based on a weighted-average grant date fair value of $59.70 per share. Compensation expense is being recognized over the performance period based on the number of shares that is deemed to be probable of vesting at the end of each three-year performance cycle. As of January 31, 2009, the Company estimated that total awards covering 48,278 shares with a value of $2,855 were deemed probable of vesting out of total awards covering 140,504 outstanding shares. During the three months ended January 31, 2009 and 2008, compensation expense of $0 and $196, respectively, was recognized for the performance awards based on the amount of shares deemed probable of vesting. During the six months ended January 31, 2009 and 2008, compensation expense of $420 and $196, respectively, was recognized for the performance awards based on the amount of shares deemed probable of vesting.
8
ANALOGIC CORPORATION
NOTES TO UNAUDITED CONSOLIDATED FINANCIAL STATEMENTS
(Continued)
The Company estimates the fair value of stock options using the Black-Scholes valuation model. Key input assumptions used to estimate the fair value of stock options include the exercise price of the award, the expected option term, the expected volatility of the Companys Common Stock over the options expected term, and the risk-free interest rate over the options expected term, and the Companys expected annual dividend yield. The Company believes that the valuation technique and the approach utilized to develop the underlying assumptions are appropriate in calculating the fair values of the Companys outstanding stock options. Estimates of fair value are not intended to predict actual future events or the value ultimately realized by persons who receive equity-based awards.
The weighted-average grant-date fair values of options granted were $11.83 and $19.71 per share during the three months ended January 31, 2009 and 2008, respectively, and $19.70 and $21.58 per share during the six months ended January 31, 2009 and 2008, respectively. The fair value of options at date of grant was estimated using the Black-Scholes option-pricing model with the following assumptions:
Three Months Ended
January 31, |
Six Months Ended
January 31, |
|||||||||||
2009 | 2008 | 2009 | 2008 | |||||||||
Expected option term (1) |
4.7 years | 4.7 years | 4.7 years | 4.7 years | ||||||||
Expected volatility factor (2) |
34 | % | 31 | % | 34 | % | 31 | % | ||||
Risk-free interest rate (3) |
3.04 | % | 4.71 | % | 3.04 | % | 4.71 | % | ||||
Expected annual dividend yield |
0.6 | % | 0.6 | % | 0.6 | % | 0.6 | % |
(1) | The option life was determined by estimating the expected option life using historical data. |
(2) | The stock volatility for each grant is determined based on the review of the weighted average of historical daily price changes of the Companys Common Stock over the most recent five years, which approximates the expected option life of the grant. |
(3) | The risk-free interest rate for periods equal to the expected term of the share option is based on the U.S. Treasury yield curve in effect at the time of grant. |
The weighted-average fair values of the options granted under the employee stock purchase plan was $5.80 per share for each of the three and six months ended January 31, 2009 and $15.13 per share during each of the three and six months ended January 31, 2008. The fair value of options at date of grant was estimated using the Black-Scholes option-pricing model with the following assumptions:
Three and Six Months Ended
January 31, |
||||||
2009 | 2008 | |||||
Expected option term |
0.5 years | 0.5 years | ||||
Expected volatility factor |
50 | % | 24 | % | ||
Risk-free interest rate |
1.45 | % | 5.02 | % | ||
Expected annual dividend yield |
1.5 | % | 0.5 | % |
9
ANALOGIC CORPORATION
NOTES TO UNAUDITED CONSOLIDATED FINANCIAL STATEMENTS
(Continued)
The following table sets forth the stock option and restricted stock transactions from July 31, 2008 to January 31, 2009:
Stock Options Outstanding |
Time-Based
Unvested Restricted Stock |
Performance-Based
Unvested Restricted Stock |
|||||||||||||||||||||
Number
of Shares |
Weighted
Average Exercise Price |
Weighted
Average Remaining Contractual Term (years) |
Aggregate
Intrinsic Value |
Number
of Shares |
Weighted
Average Grant Date Fair Value |
Number
of Shares |
Weighted
Average Grant Date Fair Value |
||||||||||||||||
Outstanding at July 31, 2008 |
286,868 | $ | 51.47 | 4.29 | $ | 6,238 | 105,112 | $ | 55.71 | 98,072 | $ | 59.13 | |||||||||||
Granted |
134,153 | 61.24 | 46,864 | 61.06 | 43,065 | 60.93 | |||||||||||||||||
Exercised |
(4,475 | ) | 44.26 | | 0.00 | | | ||||||||||||||||
Vesting of restricted stock |
| (18,618 | ) | 46.99 | | | |||||||||||||||||
Cancelled (forfeited and expired) |
(9,750 | ) | 44.27 | (9,054 | ) | 65.03 | (633 | ) | 56.30 | ||||||||||||||
Outstanding at January 31, 2009 |
406,796 | 54.95 | 4.86 | $ | | 124,304 | 58.35 | 140,504 | 59.70 | ||||||||||||||
Options vested or expected to vest at January 31, 2009 (1) |
369,647 | 54.23 | 4.71 | | |||||||||||||||||||
Options exercisable at January 31, 2009 |
162,673 | 45.50 | 2.64 | |
(1) | In addition to the vested options, the Company expects a portion of the unvested options to vest at some point in the future. Options expected to vest are calculated by applying an estimated forfeiture rate to the unvested options. |
4. Marketable securities and fair value:
Effective August 1, 2008, the Company adopted SFAS No. 157 for its financial assets and liabilities that are re-measured at fair value at each reporting period. In February 2008, the FASB issued FSP No. FAS 157-2, which provides a one-year deferral of the effective date of SFAS No. 157 for non-financial assets and non-financial liabilities, except those that are recognized or disclosed in the financial statements at fair value at least annually. The adoption of SFAS No. 157 with respect to financial assets and liabilities and non-financial assets and liabilities that are measured at fair value at least annually did not have an impact on the financial position or results of operations of the Company. SFAS No. 157 defines fair value, establishes a framework for measuring fair value under generally accepted accounting principles, and requires enhanced disclosures about fair value measurements. Fair value is defined under SFAS No. 157 as the exchange price that would be received for an asset or paid to transfer a liability (an exit price) in the principal or most advantageous market for the asset or liability in an orderly transaction between market participants on the measurement date. Valuation techniques used to measure fair value under SFAS No. 157 must maximize the use of observable inputs and minimize the use of unobservable inputs. SFAS No. 157 describes a fair value hierarchy based on three levels of inputs, of which the first two are considered observable and the last unobservable, that may be used to measure fair value:
|
Level 1 Quoted prices in active markets for identical assets or liabilities. |
|
Level 2 Inputs other than Level 1 that are observable, either directly or indirectly, such as quoted prices for similar assets or liabilities; quoted prices in markets that are not active; or other inputs that are observable or can be corroborated by observable market data for substantially the full term of the assets or liabilities. |
|
Level 3 Unobservable inputs that are supported by little or no market activity and that are significant to the fair value of the assets or liabilities. |
10
ANALOGIC CORPORATION
NOTES TO UNAUDITED CONSOLIDATED FINANCIAL STATEMENTS
(Continued)
The Companys cash equivalents and marketable securities are comprised primarily of certificates of deposits and U.S. government and agency discount notes. In accordance with SFAS No. 157, the following table represents the Companys fair value hierarchy for its financial assets measured at fair value as January 31, 2009:
Level 1 | Level 2 | Level 3 | Total | |||||||||
Assets |
||||||||||||
Money market fund included in cash and cash equivalents |
$ | 1,044 | $ | | $ | | $ | 1,044 |
The Company did not have any financial liabilities measured at fair value under SFAS No. 157 at January 31, 2009 or July 31, 2008.
The following tables summarize the composition of the Companys marketable securities at January 31, 2009 and July 31, 2008.
Gross
Unrealized |
||||||||||||
Cost | Gain | Loss | Fair Value | |||||||||
January 31, 2009 |
||||||||||||
Held-to-Maturity Securities |
||||||||||||
Certificates of deposit |
$ | 65,700 | $ | | $ | | $ | 65,700 | ||||
July 31, 2008 |
||||||||||||
Held-to-Maturity Securities |
||||||||||||
U.S. government and agency discount notes |
$ | 12,530 | $ | | $ | | $ | 12,530 |
All marketable securities held at January 31, 2009 mature within one year of that date.
There are no realized gains or losses on marketable securities, as the cost has approximated fair value.
5. Business combination
On April 14, 2008, the Company acquired all of the outstanding capital stock of Copley Controls Corporation (Copley). Copley is a supplier of gradient amplifiers for Magnetic Resonance Imaging (MRI) and precision motion control systems used in computer-controlled automation systems. This acquisition has enabled the Company to expand its product offerings to its OEM customers, pursue new opportunities in Asia, enhance its position as a provider of medical subsystems for MRI scanners, and provide additional opportunities in the high-technology automation market.
The estimated purchase price, net of cash acquired, was approximately $74,032, which consisted of $76,875 of cash paid upon closing, $734 of transaction costs, which primarily consisted of fees incurred by the Company for financial advisory, legal and accounting services, $1,066 for estimated working capital adjustment payments, of which the entire amount was paid prior to July 31, 2008, and $350 due to the former stockholders of Copley to reimburse them for the additional tax costs of making an election to treat the acquisition as an asset sale for tax purposes, net of cash acquired of $4,993. The total amount paid through January 31 2009, net of cash acquired, was $73,682.
11
ANALOGIC CORPORATION
NOTES TO UNAUDITED CONSOLIDATED FINANCIAL STATEMENTS
(Continued)
The Companys consolidated financial statements include the results of Copley from the date of acquisition. The purchase price has been allocated to the assets acquired and the liabilities assumed based on estimated fair values as of the acquisition date.
The following represents the purchase price allocation:
Current assets |
$ | 36,152 | ||||
Property, plant, and equipment |
3,912 | |||||
Goodwill |
2,418 | |||||
Intangible assets: |
||||||
Developed technology (weighted-average useful life of 11 years) |
11,771 | |||||
Customer relationships (weighted-average useful life of 14 years) |
25,200 | |||||
Tradename (indefinite life) |
7,607 | |||||
Backlog (estimated useful life of 0.5 years) |
2,063 | |||||
Total intangible assets |
46,641 | |||||
Current liabilities |
(10,098 | ) | ||||
Total purchase price |
$ | 79,025 | ||||
In determining the purchase price allocation, the Company considered, among other factors, its intention to use the acquired assets and the historical and estimated future demand for Copley products and services. The fair value of developed technology and tradename intangible assets were based upon the relief from royalty approach while the customer relationship and backlog intangible assets were based on the income approach. The rate used to discount the estimated future net cash flows to their present values for each intangible asset was based upon a weighted average cost of capital ranging from 15.5% to 20.0%. The discount rate was determined after consideration of market rates of return on debt and equity capital, the weighted average return on invested capital and the risk associated with achieving forecasted sales related to the technology and assets acquired from Copley.
The total weighted average amortization period for the intangible assets is approximately 12 years. The intangible assets are being amortized on a straight-line basis, which is consistent with the pattern that the economic benefits of the intangible assets are expected to be utilized based upon estimated cash flows generated from such assets. The goodwill is classified within the Companys Medical Imaging Products segment.
In connection with the acquisition of Copley, the Company commenced integration activities which have resulted in recognizing $1,276 in liabilities for personnel-related costs and $150 for idle facility space. The Company expects to pay a substantial amount of the liabilities associated with the personnel-related costs and idle facility space through fiscal year 2009. Approximately $514 has been paid as of January 31, 2009.
The following pro forma information gives effect to the acquisition of Copley as if the acquisition occurred at the beginning of the prior year comparative period for which pro forma results have been shown. The pro forma results are not necessarily indicative of what actually would have occurred had the acquisition been in effect for the period presented:
Three Months Ended
January 31, 2008 |
Six Months Ended
January 31, 2008 |
|||||
Net revenue |
$ | 117,127 | $ | 232,907 | ||
Net income |
5,781 | 11,361 | ||||
Net income per share, basic |
0.44 | 0.87 | ||||
Net income per share, diluted |
0.44 | 0.86 |
12
ANALOGIC CORPORATION
NOTES TO UNAUDITED CONSOLIDATED FINANCIAL STATEMENTS
(Continued)
The pro forma results for the three months ended January 31, 2008 included $1,031 and $1,598 of expenses related to the amortization of both the backlog intangible asset and the inventory fair value adjustment from the purchase accounting, respectively, and pro forma results for the six months ended January 31, 2008 included $2,063 and $1,598 of expenses related to the amortization of both the backlog intangible asset and the inventory fair value adjustment from the purchase accounting, respectively. The backlog and inventory valuation adjustment were completely amortized over six and three months, respectively, from the date of acquisition.
6. Goodwill and other intangible assets:
The carrying amount of the goodwill at January 31, 2009 and July 31, 2008 of $2,418 and $3,534, respectively, is from the acquisition of Copley. The decrease in goodwill of $1,116 from July 31, 2008 to January 31, 2009 is due primarily to an adjustment to the purchase price of $650 for the amount due to the former stockholders of Copley to reimburse them for the additional tax costs of making an election to treat the acquisition as an asset sale for tax purposes. Also contributing to the decrease was an adjustment to deferred taxes of $466 in the purchase price allocation.
Intangible assets at January 31, 2009 and July 31, 2008 consisted of the following:
January 31, 2009 | July 31, 2008 | |||||||||||||||||
Cost |
Accumulated
Amortization |
Net | Cost |
Accumulated
Amortization |
Net | |||||||||||||
Developed technology |
$ | 11,771 | $ | 909 | $ | 10,862 | $ | 11,771 | $ | 322 | $ | 11,449 | ||||||
Customer relationships |
25,200 | 1,427 | 23,773 | 25,200 | 529 | 24,671 | ||||||||||||
Tradename |
7,607 | | 7,607 | 7,607 | | 7,607 | ||||||||||||
Backlog |
2,063 | 2,063 | | 2,063 | 1,216 | 847 | ||||||||||||
Total |
$ | 46,641 | $ | 4,399 | $ | 42,242 | $ | 46,641 | $ | 2,067 | $ | 44,574 | ||||||
Amortization expense related to acquired intangible assets was $737 and $9 for the three months ended January 31, 2009 and 2008, respectively, and $2,332 and $356 for the six months ended January 31, 2009 and 2008, respectively.
The estimated future amortization expenses related to intangible assets for each of the five succeeding fiscal years is expected to be as follows:
2009 (Remaining six months) |
$ | 1,466 | |
2010 |
2,931 | ||
2011 |
2,931 | ||
2012 |
2,931 | ||
2013 |
2,931 | ||
$ | 13,190 | ||
SFAS No. 142, Goodwill and Other Intangible Assets , requires that goodwill and indefinite lived intangible assets be tested for impairment at the reporting unit level on an annual basis and between annual tests if an event occurs or circumstances change that would more likely than not reduce the fair value of the reporting unit below its carrying value. Goodwill represents the purchase price in excess of the net amount assigned to assets acquired and liabilities assumed by the Company in connection with the acquisition of Copley on April 14, 2008. The tradename represents the value allocated to the Copley tradename in connection with the acquisition of Copley. The goodwill and Copley tradename are part of the OEM reporting unit (the Reporting Unit), which the Company tests for goodwill impairment during the second quarter of each fiscal year.
13
ANALOGIC CORPORATION
NOTES TO UNAUDITED CONSOLIDATED FINANCIAL STATEMENTS
(Continued)
The Company performed the first step of the two-step impairment test under SFAS No. 142 and compared the fair value of the Reporting Unit to its carrying value during the second quarter of fiscal year 2009. The Companys approach considered both the market approach and income approach. Under the market approach, the fair value of the Reporting Unit is based on trading and acquisition multiples. In the trading multiple approach, the Company assumed a control premium of 25% for the Reporting Unit, which was determined based on a range of control premiums for relevant recent acquisitions. Under the income approach, the fair value of the Reporting Unit is based on the present value of estimated future cash flows. The income approach is dependent on a number of significant management assumptions including estimates of future sales, future gross margin percentage, and discount rates. The discount rate of 14.5% was determined after consideration of market rates of return on debt and equity capital, the weighted average return on invested capital and the risk associated with achieving forecasted sales for the Reporting Unit. Due to current market conditions, greater weighting was attributed to the market approach, which was weighted 60% while the income approach was weighted 40% in arriving at the fair value of the Reporting Unit. The Company determined that the fair value of the Reporting Unit was more than the carrying value of the net assets of the Reporting Unit, and thus it was not necessary for the Company to perform step two of the impairment test.
Given the current economic environment and the uncertainties regarding the impact on the Companys business, there can be no assurance that the Companys estimates and assumptions regarding the duration of the ongoing economic downturn, or the period or strength of recovery, made for purposes of its goodwill impairment testing during the second quarter of fiscal year 2009 will prove to be accurate predictions of the future. If the Companys assumptions regarding forecasted revenue or margin growth rates of certain reporting units are not achieved, the Company may be required to record an impairment charge for the goodwill and indefinite lived intangible asset in future periods, whether in connection with the Companys next annual impairment testing in the second quarter of fiscal year 2010, or prior to that if any such change constitutes a triggering event outside of the quarter from when the annual goodwill impairment test is performed. It is not possible at this time to determine if any such future impairment charge would result or, if it does, whether such charge would be material.
7. Voluntary retirement and other restructuring costs:
In connection with the acquisition of Copley, the Company accrued for restructuring costs of $1,100 and $326 during the third and fourth quarters of fiscal year 2008, respectively. Included in the total of $1,426 were costs of $323 for 29 employees that were terminated by the Company in January 2009. See Note 5 for additional information related to these restructuring accruals.
In May 2008, the Company notified approximately 32 employees in various departments of the organization that they would be terminated by July 31, 2008. The cost associated with these terminations, which included severance and personnel related costs, was $597 and recorded as a voluntary retirement and other restructuring cost in the fourth quarter of fiscal year 2008.
On June 4, 2008, the Company announced a voluntary retirement program for all of its U.S. employees, under which the retirements were substantially completed by September 30, 2008. The total costs under this program for the 52 employees who participated in the program, including severance and personnel related costs, was $3,419 and was recorded as a voluntary retirement and other restructuring cost during the fourth quarter of fiscal year 2008.
On January 28, 2009, the Company announced a plan to reduce its workforce by 116 employees worldwide. The total costs of this plan, including severance and personnel related costs, were $3,488 and were recorded as a restructuring charge during the three and six months ended January 31, 2009.
14
ANALOGIC CORPORATION
NOTES TO UNAUDITED CONSOLIDATED FINANCIAL STATEMENTS
(Continued)
The following table summarizes accrued voluntary retirement and other restructuring costs activity from January 31, 2008 through January 31, 2009:
Involuntary
Employee Severance |
Voluntary
Retirement Program |
Copley
Acquisition |
Total | |||||||||||||
Balance at January 31, 2008 |
$ | | $ | | $ | | $ | | ||||||||
Restructuring charge |
| | | | ||||||||||||
Copley acquisition restructuring accrual |
| | 1,100 | 1,100 | ||||||||||||
Cash payments |
| | | | ||||||||||||
Balance at April 30, 2008 |
| | 1,100 | 1,100 | ||||||||||||
Restructuring charge |
597 | | | 597 | ||||||||||||
Copley acquisition restructuring accrual |
| | 326 | 326 | ||||||||||||
Voluntary retirement costs |
| 3,419 | | 3,419 | ||||||||||||
Cash payments |
(288 | ) | (24 | ) | (50 | ) | (362 | ) | ||||||||
Balance at July 31, 2008 |
309 | 3,395 | 1,376 | 5,080 | ||||||||||||
Restructuring charge |
| | | | ||||||||||||
Cash payments |
(266 | ) | (3,287 | ) | (113 | ) | (3,666 | ) | ||||||||
Balance at October 31, 2008 |
43 | 108 | 1,263 | 1,414 | ||||||||||||
Restructuring charge |
3,488 | | | 3,488 | ||||||||||||
Cash payments |
(96 | ) | (83 | ) | (351 | ) | (530 | ) | ||||||||
Foreign exchange |
(39 | ) | | | (39 | ) | ||||||||||
Balance at January 31, 2009 |
$ | 3,396 | $ | 25 | $ | 912 | $ | 4,333 | ||||||||
The remaining cash expenditures as of January 31, 2009 consist of approximately $4,333 in employee severance, of which a substantial amount will be paid within the next 12 months.
8. Balance sheet information:
Additional information for certain balance sheet accounts is as follows for the dates indicated:
January 31,
2009 |
July 31,
2008 |
|||||
Inventories: |
||||||
Raw materials |
$ | 46,206 | $ | 43,689 | ||
Work-in-process |
18,847 | 16,893 | ||||
Finished goods |
16,595 | 18,615 | ||||
$ | 81,648 | $ | 79,197 | |||
Accrued liabilities: |
||||||
Accrued employee compensation and benefits |
$ | 10,929 | $ | 17,413 | ||
Accrued voluntary retirement and restructuring costs |
4,333 | 5,080 | ||||
Accrued warranty |
5,009 | 5,403 | ||||
Other |
4,897 | 6,656 | ||||
$ | 25,168 | $ | 34,552 | |||
Advance payments and deferred revenue: |
||||||
Deferred revenue |
$ | 7,848 | $ | 8,569 | ||
Customer deposits |
3,095 | 2,216 | ||||
$ | 10,943 | $ | 10,785 | |||
15
ANALOGIC CORPORATION
NOTES TO UNAUDITED CONSOLIDATED FINANCIAL STATEMENTS
(Continued)
9. Net income per share:
Basic net income per share is computed using the weighted average number of common shares outstanding during the period. Unvested restricted shares, although legally issued and outstanding, are not considered outstanding for purposes of calculating basic net income per share. Diluted net income per share is computed using the sum of the weighted average number of common shares outstanding during the period and, if dilutive, the weighted average number of potential shares of Common Stock, including unvested restricted stock and the assumed exercise of stock options using the treasury stock method.
Three Months Ended
January 31, |
Six Months Ended
January 31, |
|||||||||||
2009 | 2008 | 2009 | 2008 | |||||||||
Net income |
$ | 1,419 | $ | 7,147 | $ | 1,739 | $ | 13,535 | ||||
Weighted average number of common shares outstanding-basic |
12,829 | 13,174 | 13,030 | 13,133 | ||||||||
Effect of dilutive securities: |
||||||||||||
Stock options and restricted stock |
47 | 97 | 95 | 112 | ||||||||
Weighted average number of common shares outstanding-diluted |
12,876 | 13,271 | 13,125 | 13,245 | ||||||||
Net loss earnings per share: |
||||||||||||
Basic |
$ | 0.11 | $ | 0.54 | $ | 0.13 | $ | 1.03 | ||||
Diluted |
$ | 0.11 | $ | 0.54 | $ | 0.13 | $ | 1.02 | ||||
Anti-dilutive shares related to outstanding stock options |
533 | 71 | 361 | 73 |
10. Dividends:
The Company declared a dividend of $0.10 per share of Common Stock on September 25, 2008, which was paid on October 20, 2008 to stockholders of record on October 6, 2008. The Company also declared a dividend of $0.10 per share of Common Stock on December 4, 2008, which was paid on December 31, 2008 to stockholders of record on December 18, 2008. The Company also declared a dividend of $0.10 per share of Common Stock on March 3, 2009, which will be paid on March 31, 2009 to stockholders of record on March 17, 2009.
16
ANALOGIC CORPORATION
NOTES TO UNAUDITED CONSOLIDATED FINANCIAL STATEMENTS
(Continued)
11. Comprehensive income (loss):
Components of comprehensive income (loss) include net income and certain transactions that have generally been reported as a component of Stockholders Equity. The following table presents the calculation of total comprehensive income (loss) and its components:
Three Months Ended
January 31, |
Six Months Ended
January 31, |
||||||||||||||
2009 | 2008 | 2009 | 2008 | ||||||||||||
Net Income |
$ | 1,419 | $ | 7,147 | $ | 1,739 | $ | 13,535 | |||||||
Other comprehensive income (loss), net of taxes: |
|||||||||||||||
Pension adjustment, net of tax provisions of $1 and $16 for the three months ended January 31, 2009 and 2008, respectively, and a tax provision of $10 and a tax benefit of $15 for the six months ended January 31, 2009 and 2008, respectively. |
1 | 25 | 16 | (23 | ) | ||||||||||
Foreign currency translation adjustment, net of tax benefits of $103 and $284 for the three months ended January 31, 2009 and 2008, respectively, and a tax benefit of $1,286 and a tax provision of $308 for the the six months ended January 31, 2009 and 2008, respectively. |
(440 | ) | 751 | (15,624 | ) | 4,969 | |||||||||
Total comprehensive income (loss) |
$ | 980 | $ | 7,923 | $ | (13,869 | ) | $ | 18,481 | ||||||
The components of accumulated other comprehensive income, net of taxes, at January 31, 2009 and July 31, 2008 are as follows:
January 31, 2009 | July 31, 2008 | |||||||
Foreign currency translation adjustment |
$ | 3,045 | $ | 18,669 | ||||
Pension adjustment |
(81 | ) | (97 | ) | ||||
Total |
$ | 2,964 | $ | 18,572 | ||||
17
ANALOGIC CORPORATION
NOTES TO UNAUDITED CONSOLIDATED FINANCIAL STATEMENTS
(Continued)
12. Supplemental disclosure of cash flow information:
The changes in operating assets and liabilities were as follows:
Six Months Ended
January 31, |
||||||||
2009 | 2008 | |||||||
Accounts receivable |
$ | (258 | ) | $ | 3,443 | |||
Inventories |
(6,427 | ) | (2,541 | ) | ||||
Other assets |
(812 | ) | 632 | |||||
Refundable income taxes |
4,002 | | ||||||
Accounts payable |
(1,874 | ) | (1,869 | ) | ||||
Accrued liabilities |
(10,989 | ) | (3,456 | ) | ||||
Advance payments and deferred revenue |
898 | (639 | ) | |||||
Other liabilities |
(172 | ) | | |||||
Accrued income taxes |
149 | (227 | ) | |||||
Net changes in operating assets and liabilities |
$ | (15,483 | ) | $ | (4,657 | ) | ||
13. Taxes:
The Companys income tax benefits of $1,695 and $2,158 for the three and six months ended January 31, 2009, respectively, were due primarily to the Internal Revenue Service (IRS) income tax refund of $6,459 received in December 2008. The refund, which included $1,065 of interest, was for the carryback of a loss and research and development credits from the fiscal year ended July 31, 2004 and from additional research and development tax credits claimed on amended income tax returns for the fiscal years ended July 31, 2001 through 2003. The impact of this refund and related interest was a reduction of unrecognized tax benefits by approximately $3,280, of which $1,232 was recorded as a tax benefit in both the three and six months ended January 31, 2009. Also contributing to the income tax benefits for the three and six months ended January 31, 2009 were discrete benefits of $391 for previously unrecognized tax benefits resulting from the settlement of the IRS audit, partially offset by additional provisions for agreed federal and state adjustments. The income tax benefit for the six months ended January 31, 2009 also includes a discrete tax benefit of $404 for the reinstatement of the federal research and experimentation credit back to January 1, 2008.
The Companys effective income tax rates were provisions of 33.2% and 33.1% for the three and six months ended January 31, 2008, respectively. For the three and six months ended January 31, 2008, the effective tax rate varied from the statutory tax rate primarily as a result of the mix of income attributable to foreign versus domestic jurisdictions. The Companys aggregate income tax rate in foreign jurisdictions is lower than its income tax rate in the United States. During the three months ended January 31, 2008, the Company recognized discrete tax benefits of $33 that resulted from employees disqualifying dispositions of qualified incentive stock options. For the six months ended January 31, 2008, the Company recognized discrete net tax benefits of $56 due primarily to the change in tax rate on certain foreign deferred tax assets and the tax benefit from employees disqualifying dispositions of qualified incentive stock options.
The Company adopted FASB Interpretation (FIN) No. 48, Accounting for Uncertainty in Income Taxes at the beginning of fiscal year 2008. FIN No. 48 requires management to perform a two-step evaluation of all tax positions, ensuring that these tax return positions meet the more likely than not recognition threshold and can be measured with sufficient precision to determine the benefit recognized in the financial statements. These evaluations provide management with a comprehensive model for how a company should recognize, measure, present, and disclose in its financial statements certain tax positions that the Company has taken or expects to take on its income tax returns. As a result of the implementation of FIN No. 48, the Company recognized a net increase of $2,239 to the August 1, 2007 retained earnings balance, which consisted of a non-current other asset and accrued income taxes of $3,806 and $1,567, respectively. At July 31, 2008, the total amount of gross unrecognized tax benefits, which excludes interest and penalties discussed below, was approximately $18,296. The unrecognized tax benefits have decreased to $15,066 at January 31, 2009; these benefits, if recognized in a future period, the timing of which is not estimable, would impact the Companys effective tax rate.
18
ANALOGIC CORPORATION
NOTES TO UNAUDITED CONSOLIDATED FINANCIAL STATEMENTS
(Continued)
Analogic and its subsidiaries are subject to U.S. federal income tax as well as the income tax of multiple state and foreign jurisdictions. The Company has concluded all U.S. federal income tax matters for fiscal years through July 31, 2002. As of January 31, 2009, Analogic was under audit by the IRS for the fiscal year ended July 31, 2007.
The Company also has an unresolved state tax audit currently under appeal and one in progress. It is reasonably possible that a reduction in the unrecognized tax benefits may occur as a result of some or all of the matters concluding, but quantification of an estimated range cannot be made at this time. Within the next four fiscal quarters, the statute of limitations may close on the 2005 federal and state income tax returns and it is reasonably expected that net unrecognized tax benefits of $780 from these jurisdictions may be recognized in the next four quarters.
Within the next four fiscal quarters, the statute of limitations will close on the 2003 and 2004 tax returns filed in various foreign jurisdictions. As a result, it is reasonably expected that net unrecognized tax benefits from these foreign jurisdictions may be recognized within the next four quarters. The recognition of these tax benefits is not expected to have a material impact on the Companys financial statements.
The Company has net operating loss carryforwards in Belgium of approximately $4,200 that are subject to a valuation allowance. It is reasonably possible that the valuation allowance could reverse in the next twelve months.
The Company accrues interest and, if applicable, penalties for any uncertain tax positions. This interest and penalty expense will be a component of income tax expense. At the date of adoption of FIN No. 48 and at January 31, 2009, the Company had approximately $1,025 and $1,161, respectively, accrued for interest on unrecognized tax benefits.
14. Segment information:
The Company operates primarily within two major markets within the electronics industry: Medical Technology Products and Security Technology Products. Medical Technology Products consists of three reporting segments: Medical Imaging Products, which consists primarily of electronic systems and subsystems for medical imaging equipment and patient monitoring; Digital Radiography Products, which consists primarily of x-ray detectors and direct digital radiography systems for diagnostic and interventional applications in mammography, orthopedic, and general radiology applications; and B-K Medical ApS (B-K Medical) for ultrasound systems and probes in the urology, surgery, and radiology markets. Security Technology Products consists of advanced weapon and threat detection aviation security systems and subsystems. The Companys Corporate and Other segment represents the Companys hotel business and net interest income. The accounting policies of the segments are the same as those described in the summary of Significant Accounting Policies included in Note 1 of the Notes to Consolidated Financial Statements in the Companys Annual Report on Form 10-K for fiscal year 2008.
19
ANALOGIC CORPORATION
NOTES TO UNAUDITED CONSOLIDATED FINANCIAL STATEMENTS
(Continued)
The table below presents information about the Companys reportable segments.
Three Months Ended
January 31, |
Six Months Ended
January 31, |
|||||||||||||||
2009 | 2008 | 2009 | 2008 | |||||||||||||
Revenues: |
||||||||||||||||
Medical Technology Products from external customers: |
||||||||||||||||
Medical Imaging Products (A) |
$ | 61,792 | $ | 53,620 | $ | 121,036 | $ | 105,739 | ||||||||
Digital Radiography products |
6,772 | 5,767 | 14,226 | 10,633 | ||||||||||||
B-K Medical |
20,848 | 24,698 | 39,736 | 45,203 | ||||||||||||
89,412 | 84,085 | 174,998 | 161,575 | |||||||||||||
Security Technology Products from external customers |
11,240 | 12,875 | 24,094 | 26,211 | ||||||||||||
Corporate and Other |
2,063 | 2,440 | 5,175 | 5,815 | ||||||||||||
Total |
$ | 102,715 | $ | 99,400 | $ | 204,267 | $ | 193,601 | ||||||||
Income (loss) before income taxes |
||||||||||||||||
Medical Technology Products: |
||||||||||||||||
Medical Imaging Products (B) |
$ | (1,213 | ) | $ | 5,631 | $ | (2,664 | ) | $ | 11,395 | ||||||
Digital Radiography Products |
(19 | ) | (2,251 | ) | 540 | (4,066 | ) | |||||||||
B-K Medical |
827 | 3,044 | (1,278 | ) | 3,966 | |||||||||||
(405 | ) | 6,424 | (3,402 | ) | 11,295 | |||||||||||
Security Technology Products |
383 | 1,384 | 1,930 | 2,678 | ||||||||||||
Corporate and Other |
(254 | ) | 2,898 | 1,053 | 6,268 | |||||||||||
Total |
$ | (276 | ) | $ | 10,706 | $ | (419 | ) | $ | 20,241 | ||||||
January 31, 2009 | July 31, 2008 | |||||
Identifiable assets: |
||||||
Medical Imaging Products (C) |
$ | 150,707 | $ | 146,854 | ||
Digital Radiography Products |
24,847 | 35,122 | ||||
B-K Medical |
84,030 | 101,455 | ||||
Security Technology Products |
13,077 | 13,011 | ||||
Corporate and Other (D) |
185,242 | 214,723 | ||||
Total |
$ | 457,903 | $ | 511,165 | ||
(A) | Includes Copley revenues for the three and six months ended January 31, 2009 of $15,922 and $35,476, respectively. |
(B) | Includes Copley loss before taxes for the three and six months ended January 31, 2009 of $757 and $1,035, respectively. |
(C) | Includes goodwill and net intangible assets from the acquisition of Copley of $2,418 and $42,242, respectively, at January 31, 2009, and $3,534 and $44,574, respectively, at July 31, 2008. |
(D) | Includes cash and cash equivalents and marketable securities of $111,551 and $132,433 at January 31, 2009 and July 31, 2008, respectively. |
20
ANALOGIC CORPORATION
NOTES TO UNAUDITED CONSOLIDATED FINANCIAL STATEMENTS
(Continued)
15. Commitments and guarantees:
In November 2002, the FASB issued FIN No. 45, Guarantors Accounting and Disclosure Requirements for Guarantees, Including Indirect Guarantees of Indebtedness of Others, an interpretation of FASB Statements No. 5, 57, and 107 and rescission of FASB Interpretation No. 34. FIN No. 45 requires a guarantor to recognize, at the inception of a guarantee, a liability for the fair value of the obligation undertaken by issuing the guarantee. The following is a summary of agreements that the Company has determined are within the scope of FIN No. 45.
The Companys standard OEM and supply agreements entered into in the ordinary course of business typically contain an indemnification provision pursuant to which the Company indemnifies, holds harmless, and agrees to reimburse the indemnified party for losses suffered or incurred by the indemnified party in connection with any United States patent, or any copyright or other intellectual property infringement claim by any third party with respect to the Companys products. Such provisions generally survive termination or expiration of the agreements. The potential amount of future payments the Company could be required to make under these indemnification provisions is, in some instances, unlimited. The Company has never incurred costs to defend lawsuits or settle claims related to these indemnification agreements. As a result, the Company believes that its estimated exposure on these agreements is currently minimal. Accordingly, the Company has no liabilities recorded for these agreements as of January 31, 2009.
Generally, the Company warrants that its products will perform in all material respects in accordance with its standard published specifications in effect at the time of delivery of the products to the customer for a period ranging from 12 to 24 months from the date of delivery. The Company provides for the estimated cost of product and service warranties based on specific warranty claims, claim history and engineering estimates, where applicable.
The following table presents the Companys product warranty liability for the reporting periods:
Three Months Ended
January 31, |
Six Months Ended
January 31, |
|||||||||||||||
2009 | 2008 | 2009 | 2008 | |||||||||||||
Balance at the beginning of the period |
$ | 4,884 | $ | 5,489 | $ | 5,403 | $ | 5,241 | ||||||||
Accrual |
973 | 937 | 1,695 | 2,251 | ||||||||||||
Settlements made in cash or in kind during the period |
(848 | ) | (830 | ) | (2,089 | ) | (1,896 | ) | ||||||||
Balance at the end of the period |
$ | 5,009 | $ | 5,596 | $ | 5,009 | $ | 5,596 | ||||||||
The Company currently has approximately $22,500 in revolving credit facilities with banks available for direct borrowings. The Companys revolving credit facility agreement contains a number of covenants, including a covenant requiring the Company to maintain a tangible net worth (as defined in the revolving credit facility agreement) of no less than $255,000 as of the end of any fiscal quarter. The Company was in compliance with this covenant at January 31, 2009 with a tangible net worth of approximately $340,400. As of January 31, 2009, there were no direct borrowings or off-balance sheet arrangements.
16. Common Stock repurchase:
On October 13, 2008, the Company announced that, on the same date, its Board of Directors had authorized the repurchase of up to $25,000 of the Companys Common Stock. The Company completed the repurchase program, which was funded using the Companys available cash, in the second quarter of fiscal year 2009. During the three and six months ended January 31, 2009, the Company repurchased 648,020 and 736,694 shares, respectively, of Common Stock under this repurchase program for $21,520 and $25,022, respectively, at an average purchase price per share of $33.21 and $33.97, respectively. Included in the $25,022 paid for the Common Stock under this program was $22 of commissions and fees to the Companys broker.
21
Item 2. | Managements Discussion and Analysis of Financial Condition and Results of Operations |
The following discussion provides an analysis of the financial condition and results of operations for Analogic Corporation and its subsidiaries (the Company) and should be read in conjunction with the Unaudited Consolidated Financial Statements and Notes thereto included elsewhere in this report. The discussion below contains forward-looking statements within the meaning of the Securities Exchange Act of 1934, as amended (the Exchange Act). All statements, other than statements of historical fact, the Company makes in this document are forward looking statements. Such forward-looking statements involve known and unknown risks, uncertainties, and other factors, including those set forth in Part II. Item 1A. Risk Factors, which may cause the actual results, performance, or achievements of the Company to differ materially from the projected results.
The Company reports its financial condition and results of operations on a fiscal year basis ending July 31. The periods ended January 31, 2009 and 2008 represent the second quarters of the 2009 and 2008 fiscal years, respectively. All dollar amounts in this Item 2 are in thousands except per share data.
Summary
The Company is engaged primarily in the design, manufacture and sale of high performance data acquisition and signal processing instruments to customers that manufacture products primarily for two major markets within the electronics industry: Medical Technology Products and Security Technology Products. Medical Technology Products consists of three reporting segments: Medical Imaging Products, which consists primarily of electronic systems and subsystems for medical imaging equipment and patient monitoring; Digital Radiography Products, which consists primarily of x-ray detectors and direct digital radiography systems for diagnostic and interventional applications in mammography, orthopedic, and general radiology applications; and B-K Medical ApS (B-K Medical) for ultrasound systems and probes in the urology, surgery, and radiology markets. Security Technology Products consists of advanced weapon and threat detection aviation security systems and subsystems. The Companys Corporate and Other segment represents the Companys hotel business and net interest income.
A significant portion of the Companys products are sold to Original Equipment Manufacturers (OEMs), whose purchasing dynamics have an impact on the Companys reported sales. OEMs that purchase the Companys Medical Imaging and Digital Radiography Products generally incorporate those products as components in their systems, which are in turn sold to end users, primarily hospitals and clinics. Over the last nine months, Medical Imaging Products OEM customers have been impacted by the U.S Deficit Reduction Act (DRA). The DRA reduced government reimbursement rates for doctors utilizing medical imaging procedures for their patients. In addition, the deterioration of global economic conditions over the last six months has resulted in reduced endowments and funding of hospitals and clinics. In response, these end users have begun to reduce the capital available for investment in new facilities, expansions or upgrades. As such, Medical Imaging Products OEMs have experienced reductions in demand for their products and have in turn reduced their procurement spending.
In the Companys Security Technology Products business, a major OEM customer purchases and resells the Companys products to end users including domestic and foreign airports as well as the U.S Transportation Security Authority (TSA). In Security Technology Products, the Companys OEM customer purchasing dynamics are generally affected by the level of government funding, the expansion of airport terminals and the continuing increase in airline passenger volume. It is expected that the recently signed American Recovery and Reinvestment Act may result in additional government funding for security scanners of checked and carry-on baggage.
Over the past several years the Company has had significant cash and marketable securities balances, which over the past year have been impacted by a reduction in interest rates. The Company has historically invested in U.S government backed securities, bonds, and certificates of deposit, the interest rates of which have declined significantly over the last year. Also contributing to the decline in interest income of approximately 69% for the three months ended January 31, 2009 as compared to the three months ended January 31, 2008 were Copley Controls Corporation (Copley) acquisition related costs of $73,332 in the third quarter of fiscal year 2008 and repurchases of Common Stock of $85,022 since April 30, 2007.
The Company performed the first step of the two-step impairment test under Statement of Financial Accounting Standards (SFAS) No. 142, Goodwill and Other Intangible Assets , and compared the fair value of the OEM Reporting Unit (the Reporting Unit) to its carrying value during the second quarter of fiscal year 2009. The Company determined that the fair value of the Reporting Unit was more than the carrying value of the net assets of the Reporting Unit, and thus there was no impairment.
22
Given the current economic environment and the uncertainties regarding the impact on the Companys business, there can be no assurance that the Companys estimates and assumptions regarding the duration of the ongoing economic downturn, or the period or strength of recovery, made for purposes of its goodwill impairment testing during the second quarter of fiscal year 2009 will prove to be accurate predictions of the future. If the Companys assumptions regarding forecasted revenue or margin growth rates of certain reporting units are not achieved, the Company may be required to record an impairment charge for the goodwill and indefinite lived intangible asset in future periods, whether in connection with the Companys next annual impairment testing in the second quarter of fiscal year 2010, or prior to that if any such change constitutes a triggering event outside of the quarter from when the annual goodwill impairment test is performed. It is not possible at this time to determine if any such future impairment charge would result or, if it does, whether such charge would be material.
The following table sets forth key financial data and growth rates for the three months ended January 31, 2009 and 2008. This summary is not a substitute for the detail provided in the following pages or for the Unaudited Consolidated Financial Statements and Notes that appear elsewhere in this document.
Three Month Ended
January 31, |
Percentage
Growth |
|||||||||
2009 | 2008 | |||||||||
Total net revenue |
$ | 102,715 | $ | 99,400 | 3 | % | ||||
Income (loss) from operations |
(1,507 | ) | 7,801 | -119 | % | |||||
Net income |
1,419 | 7,147 | -80 | % | ||||||
Diluted net income per share |
0.11 | 0.54 | -80 | % |
Net revenue for the three months ended January 31, 2009 was $3,315, or 3%, higher than the same period last year, due primarily to an increase in engineering revenue of $3,479, or 127%. While product revenue remained relatively consistent for the three months ended January 31, 2009 as compared to the same period last year, the Company had $15,471 of product revenue from Copley, which the Company acquired in April 2008. The increase in product revenues from Copley was offset by a decline in demand for core Medical Technology Products and Security Technology Products.
Income (loss) from operations, net income, and diluted net income per share in the three months ended January 31, 2009 declined from the three months ended January 31, 2008 due primarily to a decline in gross margin contribution as well as an increase in operating expenses. The decline in gross margin was due primarily to amortization of acquisition related intangible assets, unfavorable product mix, and manufacturing inefficiencies related to lower production volumes. The increase in operating expenses was due primarily to Copley operating expenses of $3,835, contingent professional fees of $688 related to an income tax refund and related interest of $6,459 received from the Internal Revenue Service (IRS) in December 2008, and a restructuring charge of $3,488 in the three months ended January 31, 2009. On January 28, 2009, the Company announced a plan to reduce its workforce by 116 employees worldwide. The total cost of this plan, including severance and personnel related costs, were $3,488 and were recorded as a restructuring charge during the three and six months ended January 31, 2009. The Company also terminated 29 employees from Copley in January 2009. The severance and personnel related costs of $323 for the Copley employees were accrued for in fiscal year 2008 in connection with the acquisition. The savings from the termination of the 145 employees on an annual basis is estimated to be approximately $9,800.
Net income and diluted net income per share were further impacted by a decline in net interest income of $1,717, due primarily to lower effective interest rates and lower invested cash balances, partially offset by a decrease in the effective tax rate. For the three months ended January 31, 2009, we realized a significant tax benefit as compared to a provision of 33% for the three months ended January 31, 2008. The tax benefit for the three months ended January 31, 2009 was due primarily to the income tax refund from the IRS of $6,459, which included interest of $1,065. The impact of this refund and related interest was a reduction of unrecognized tax benefits by approximately $3,280, of which $1,232 was recorded as tax benefit in both the three and six months ended January 31, 2009.
On October 13, 2008, the Company announced that, on the same date, its Board of Directors had authorized the repurchase of up to $25,000 of the Companys Common Stock. The Company completed the repurchase program, which was funded using the Companys available cash, in the second quarter of fiscal year 2009. During the three and six months ended January 31, 2009, the Company repurchased 648,020 and 736,694 shares, respectively, of Common Stock under this repurchase program for $21,520 and $25,022, respectively, at an average purchase price per share of $33.21 and $33.97, respectively. Included in the $25,022 paid for the Common Stock under this program was $22 of commissions and fees to the Companys broker.
23
Results of Operations
Three Months Ended January 31, 2009 vs. Three Months Ended January 31, 2008
Net Revenue and Gross Margin
Net revenue and gross margin for the three months ended January 31, 2009 as compared with the three months ended January 31,
Product Revenue and Gross Margin
Three Months Ended
January 31, |
Percentage
Growth |
||||||||||
2009 | 2008 | ||||||||||
Product revenue |
$ | 94,444 | $ | 94,231 | 0.2 | % | |||||
Gross margin |
32,622 | 37,056 | -12.0 | % | |||||||
Gross margin % |
34.5 | % | 39.3 | % |
Product revenue for the three months ended January 31, 2009 was consistent with the three months ended January 31, 2008. While total product revenue was consistent, product revenue in Medical Imaging Products and Digital Radiography Products increased $6,370 and $1,178, respectively, offset by decreases in B-K Medical and Security Technology Products of $3,850 and $3,485, respectively.
The increase in product revenue for Medical Imaging Products was due primarily to the acquisition of Copley during April 2008, which accounted for $15,471 of product revenue in the three months ended January 31, 2009. This increase was partially offset by a decline in demand for data acquisition systems, detectors, and CT subsystems due primarily to the DRA and the global economic crisis. The increase in product revenue for Digital Radiography Products was due primarily to an increase in shipments of mammography detectors to an OEM customer during the three months ended January 31, 2009. The decrease in product revenue for B-K Medical was due primarily to an unfavorable change in the foreign currency exchange rate, which accounted for approximately $2,500 of the decrease. Also contributing to the decrease was a decline in demand for ultrasound systems due to customer order delays in anticipation of two new ultrasound product lines, one of which was introduced late in the second quarter and the other of which will be introduced in the third quarter of fiscal year 2009. The decrease in Security Technology Products was due primarily to a decrease in sales of spare parts and accessories of approximately $2,700 from the three months ended January 31, 2008 to the three months ended January 31, 2009.
Product gross margin percentage decreased to 34.5% for the three months ended January 31, 2009, from 39.3% for
the three months ended January 31, 2008. The decline in the product gross margin percentage was due primarily to Medical Imaging Products. The decline in the Medical Imaging Products gross margin percentage was due primarily to the amortization
of intangible assets from the acquisition of Copley, a higher mix of lower margin Copley products, and reduced manufacturing efficiency caused by lower production volumes. The decline in the Medical Imaging Products gross margin percentage was
partially offset by increases in the product gross margin percentage of Digital Radiography Products and B-K Medical. The increase in the product gross margin percentage for Digital Radiography Products was due primarily to improved manufacturing
Engineering Revenue and Gross Margin
Three Months Ended
January 31, |
Percentage
Growth |
||||||||||
2009 | 2008 | ||||||||||
Engineering revenue |
$ | 6,208 | $ | 2,729 | 127.5 | % | |||||
Gross margin (loss) |
(85 | ) | (391 | ) | -78.3 | % | |||||
Gross margin % |
-1.4 | % | -14.3 | % |
Engineering revenue increased $3,479, or 127.5%, for the three months ended January 31, 2009 as compared to the three months ended January 31, 2008. The increase in engineering revenue was due primarily to increases in Security Technology Products and Medical Imaging Products of $1,849 and $1,802, respectively. The increase in Security Technology Products was due primarily to engineering revenue on a time and materials project with the TSA to transition the eXaminer XLB from a prototype into a product that can be manufactured. The increase in Medical Imaging Products was due primarily to an increase in customer funded engineering projects.
24
The engineering gross loss decreased $306 to $85 for the three months ended January 31, 2009 as compared to $391 for the three months ended January 31, 2008. The decrease was due primarily to an increase in gross margin on Security Technology Product projects as a result of more activity on higher gross margin projects partially offset by an increase of costs incurred in excess of revenues on certain customer funded Medical Imaging Products projects.
Other Revenue
Other revenue of $2,063 and $2,440 represents revenue from the hotel operations for the three months ended January 31, 2009 and 2008,
Operating Expenses
Three Months Ended
January 31, |
Percentage of Revenue | |||||||||||
2009 | 2008 | 2009 | 2008 | |||||||||
Research and product development |
$ | 11,358 | $ | 11,858 | 11.1 | % | 11.9 | % | ||||
Selling and marketing |
9,728 | 7,985 | 9.4 | % | 8.0 | % | ||||||
General and administrative |
9,836 | 9,696 | 9.6 | % | 9.8 | % | ||||||
Restructuring charge |
3,488 | | 3.4 | % | 0.0 | % | ||||||
$ | 34,410 | $ | 29,539 | 33.5 | % | 29.7 | % | |||||
Operating expenses increased $4,871 for the three months ended January 31, 2009 from the three months ended January 31, 2008. The increase was due primarily to the acquisition of Copley in April 2008. During the three months ended January 31, 2009, Copley accounted for operating expenses of $3,835, of which $1,917, $1,211, and $707 was for research and product development, selling and marketing, and general and administrative expenses, respectively. Also, contributing to the increase in operating expenses was the restructuring charge of $3,488 during the three months ended January 31, 2009 for severance and personnel related costs of the restructuring plan implemented by management in January 2009.
Other items that contributed to the increase in operating expenses in the three months ended January 31, 2009 as compared to the three months ended January 31, 2008 was a decline in research and product development expenses due primarily to more work on customer funded engineering projects and less spending on engineering materials. Additionally, the increase in general and administrative expenses from the three months ended January 31, 2008 to the three months ended January 31, 2009 included $688 of contingent professional fees related to an income tax refund and related interest of $6,459 received from the IRS in December 2008.
Other Income
Net interest income was $767 for the three months ended January 31, 2009 compared to $2,484 for the three months ended January 31, 2008. The decrease was due primarily to lower invested cash balances as a result of the acquisition of Copley, the Companys $25,022 Common Stock repurchase in the first and second quarters of fiscal year 2009, and a decline in interest rates.
Net other income was $464 and $421 for the three months ended January 31, 2009 and 2008, respectively. Net other income consisted predominantly of foreign currency exchange gains by the Companys Canadian subsidiary during the three months ended January 31, 2009. Net other income in the three months ended January 31, 2008 consisted primarily of $555 the Company received from its insurance company as reimbursement for legal fees incurred in relation to an indemnification matter related to the Companys sale of its wholly owned subsidiary, Camtronics Medical Systems, Ltd. (Camtronics), in November 2005.
25
Provision for Income Taxes
The effective tax rate for the three months ended January 31, 2009 and 2008 was a benefit of 614% and a provision of 33%, respectively. The effective income tax rate is based upon the estimated income for the fiscal year, the composition of the income in different countries, and adjustments, if any, in the applicable quarterly periods for the potential tax consequences, benefits, resolutions of tax audits or other tax contingencies. For the three months ended January 31, 2009, the effective tax rate benefit of 614% was due primarily to the IRS refund of $6,459 received in December 2008. The refund, which included $1,065 of interest, was for the carryback of a loss and research and development credits from the fiscal year 2004 and from additional research and development tax credits claimed on amended income tax returns for fiscal years 2001 through 2003. The impact of this refund and related interest was a reduction of unrecognized tax benefits by approximately $3,280, of which $1,232 was recorded as a tax benefit in the three months ended January 31, 2009. Also contributing to the effective tax rate benefit for the three months ended January 31, 2009 were discrete benefits of $391 for previously unrecognized tax benefits resulting from the settlement of the IRS audit, partially offset by additional provisions for agreed federal and state adjustments.
Net Income per Share
Net income as well as net income per share for the three months ended January 31, 2009 and 2008 are as follows:
Three Months Ended
January 31, |
||||||||
2009 | 2008 | |||||||
Net income |
$ | 1,419 | $ | 7,147 | ||||
% of net revenue |
1.4 | % | 7.2 | % | ||||
Diluted net income per share |
$ | 0.11 | $ | 0.54 |
Net income was $1,419 for the three months ended January 31, 2009 as compared to net income of $7,147 for the three months ended January 31, 2008. Basic and diluted net income per share were $0.11 for the three months ended January 31, 2009 as compared to basic and diluted net income per share of $0.54 for the three months ended January 31, 2008. The decreases in net income as well as basic and diluted net income per share from the three months ended January 31, 2008 to the three months ended January 31, 2009 were due primarily to a decline in gross margin, an increase in operating expenses, and a decline in interest income, partially offset by a decline in the effective income tax rate. Also partially offsetting the decrease in basic and diluted net income per share from the three months ended January 31, 2008 to the three months ended January 31, 2009 was the Companys repurchase of 736,694 shares of Common Stock in the first two quarters of fiscal year 2009. The Common Stock repurchase was the primary driver in the decline of the diluted weighted average shares outstanding to approximately 12,876,000 for the three months ended January 31, 2009 from approximately 13,271,000 for the three months ended January 31, 2008.
Six Months Ended January 31, 2009 vs. Six Months Ended January 31, 2008
Net Revenue and Gross Margin
Net revenue and gross margin for the six months ended January 31,
Product Revenue and Gross Margin
Six Months Ended
January 31, |
Percentage
Growth |
||||||||||
2009 | 2008 | ||||||||||
Product revenue |
$ | 189,391 | $ | 179,542 | 5.5 | % | |||||
Gross margin |
62,291 | 70,318 | -11.4 | % | |||||||
Gross margin % |
32.9 | % | 39.2 | % |
26
Product revenue for the six months ended January 31, 2009 increased $9,849, or 5.5%, over the six months ended January 31, 2008. The increase in product revenue was due primarily to an increase in product revenue for Medical Imaging Products and Digital Radiography Products of $14,097 and $3,893, respectively, partially offset by decreases in B-K Medical and Security Technology Products of $5,467 and $2,674, respectively.
The increase in product revenue for Medical Imaging Products was due primarily to the acquisition of Copley during April 2008, which accounted for $35,026 of product revenue in the six months ended January 31, 2009. This increase was partially offset by a decline in demand for data acquisition systems, detectors, and CT subsystems due primarily to the DRA and the global economic crisis. Digital Radiography Products revenues increased in response to a ramp up of shipments of mammography detectors to an OEM customer during the six months ended January 31, 2009. B-K Medical product revenues declined due primarily to an unfavorable change in the foreign currency exchange rate, which accounted for approximately $2,900 of the decrease. Also contributing to the decrease was a decline in demand for ultrasound systems due to customer order delays in anticipation of two new ultrasound product lines, one of which was introduced late in the second quarter and the other of which will be introduced in the third quarter of fiscal year 2009. The decrease in Security Technology Products was due primarily to a decrease in sales of spare parts and accessories of approximately $4,300 from the six months ended January 31, 2008 to the six months ended January 31, 2009. The decrease in sales of spare parts and accessories was partially offset by 6 more baggage scanners shipped in the six months ended January 31, 2009 as compared to the six months ended January 31, 2008.
Product gross margin percentage decreased to 32.9% for the six months ended January 31, 2009, from 39.2% for the six months ended January 31,
2008. The decline in the product gross margin percentage was due primarily to Medical Imaging Products. The decline in the Medical Imaging Products gross margin percentage was due primarily to the amortization of intangible assets from the
acquisition of Copley, a higher mix of lower margin Copley products, and reduced manufacturing efficiency caused by lower production volumes. The decline in the Medical Imaging Products gross margin percentage was partially offset by an increase in
Engineering Revenue and Gross Margin
Six Months Ended
January 31, |
Percentage
Growth |
||||||||||
2009 | 2008 | ||||||||||
Engineering revenue |
$ | 9,701 | $ | 8,244 | 17.7 | % | |||||
Gross margin (loss) |
218 | (332 | ) | 165.7 | % | ||||||
Gross margin % |
2.2 | % | -4.0 | % |
Engineering revenue increased $1,457, or 17.7%, for the six months ended January 31, 2009 as compared to the six months ended January 31, 2008. The increase in engineering revenue was due primarily to increases in Security Technology Products and Medical Imaging Products of $557 and $1,200, respectively. The increase in Security Technology Products was due primarily to engineering revenue on a time and materials project with the TSA to transition the eXaminer XLB from a prototype into a product that can be manufactured. This increase was partially offset by the completion of a project in the six months ended January 31, 2008, which was accounted for under the completed contract method and had revenue of $2,417 for engineering activities that had been performed primarily in periods prior to the six months ended January 31, 2008. The increase in Medical Imaging Products was due primarily to an increase in customer funded engineering projects.
The engineering gross loss for the six months ended January 31, 2008 decreased $550 to a gross margin of $218 for the six months ended January 31, 2009. The decrease was due primarily to an increase in gross margin on Security Technology Product projects as a result of more activity on higher gross margin projects, partially offset by an increase in costs incurred in excess of revenues on certain customer funded Medical Imaging Products projects.
Other Revenue
Other revenue of $5,175 and $5,815 for the six months ended January 31, 2009 and 2008, respectively, represents revenue from the hotel operations. The decrease was due primarily to lower occupancy.
27
Operating Expenses
Six Months Ended
January 31, |
Percentage of Revenue | |||||||||||
2009 | 2008 | 2009 | 2008 | |||||||||
Research and product development |
$ | 23,925 | $ | 23,040 | 11.7 | % | 11.9 | % | ||||
Selling and marketing |
19,412 | 15,787 | 9.5 | % | 8.2 | % | ||||||
General and administrative |
20,464 | 19,136 | 10.0 | % | 9.9 | % | ||||||
Restructuring charge |
3,488 | | 1.7 | % | 0.0 | % | ||||||
$ | 67,289 | $ | 57,963 | 32.9 | % | 30.0 | % | |||||
Operating expenses increased $9,326 for the six months ended January 31, 2009 from the six months ended January 31, 2008. The increase was due primarily to the acquisition of Copley in April 2008. During the six months ended January 31, 2009, Copley accounted for operating expenses of $7,975, of which $3,575, $2,587, and $1,813 was for research and product development, selling and marketing, and general and administrative expenses, respectively. Also, contributing to the increase in operating expenses was the restructuring charge of $3,488 during the six months ended January 31, 2009 for severance and personnel related costs of the restructuring plan implemented by management in January 2009.
Other items that contributed to the increase in operating expenses in the six months ended January 31, 2009 as compared to the six months ended January 31, 2008 was $688 of contingent professional fees in general and administrative expenses related to an income tax refund and related interest of $6,459 received from the IRS in December 2008. Partially offsetting this increase in operating expenses was a reduction in research and product development costs on internally funded engineering projects for Medical Imaging Products due primarily to an increase in customer funded engineering projects.
Other Income
Net interest income was $1,775 for the six months ended January 31, 2009 compared to $5,187 for the six months ended January 31, 2008. The decrease was due primarily to lower invested cash balances as a result of the acquisition of Copley, the Companys $25,022 Common Stock repurchase in the first and second quarters of fiscal year 2009, and a decline in interest rates.
Net other income was $897 and $860 for the six months ended January 31, 2009 and 2008, respectively. Net other income consisted predominantly of foreign currency exchange gains incurred by the Companys Canadian subsidiary during the six months ended January 31, 2009. Net other income in the six months ended January 31, 2008 consisted primarily of $555 the Company received from its insurance company as reimbursement for legal fees incurred in relation to an indemnification matter related to the Companys sale of Camtronics in November 2005. Also contributing to the net other income during the six months ended January 31, 2008 was foreign currency exchange gains incurred by the Companys Canadian and Danish subsidiaries.
Provision for Income Taxes
The effective tax rate for the six months ended January 31, 2009 and 2008 was a benefit of 515% and a provision of 33%, respectively. The effective income tax rate is based upon the estimated income for the fiscal year, the composition of the income in different countries, and adjustments, if any, in the applicable quarterly periods for the potential tax consequences, benefits, resolutions of tax audits or other tax contingencies. For the six months ended January 31, 2009, the effective tax rate benefit of 515% was due primarily to the IRS refund of $6,459 received in December 2008. The refund, which included $1,065 of interest, was for the carryback of a loss and research and development credits from fiscal year 2004 and from additional research and development tax credits claimed on amended income tax returns for fiscal years 2001 through 2003. The impact of this refund and related interest was a reduction of unrecognized tax benefits by approximately $3,280, of which $1,232 was recorded as a tax benefit in the six months ended January 31, 2009. Also contributing to the effective tax rate benefit for the six months ended January 31, 2009 were discrete benefits of $391 for previously unrecognized tax benefits resulting from the settlement of the IRS audit, partially offset by additional provisions for agreed federal and state adjustments. The effective tax rate benefit for the six months ended January 31, 2009 also includes a discrete tax benefit of $404 for the reinstatement of the federal research and experimentation credit back to January 1, 2008.
28
Net Income per Share
Net income and net income per share for the six months ended January 31, 2009 and 2008 were as follows:
Six Months Ended
January 31, |
||||||||
2009 | 2008 | |||||||
Net income |
$ | 1,739 | $ | 13,535 | ||||
% of net revenue |
0.9 | % | 7.0 | % | ||||
Diluted net income per share |
$ | 0.13 | $ | 1.02 |
Net income was $1,739 for the six months ended January 31, 2009 compared to $13,535 for the six months ended January 31, 2008. Basic and diluted net income per share were $0.13 for the six months ended January 31, 2009 as compared to basic and diluted net income per share of $1.03 and $1.02, respectively, for the six months ended January 31, 2008. The decreases in net income as well as basic and diluted net income per share from the six months ended January 31, 2008 to the six months ended January 31, 2009 were due primarily to a decline in gross margin, an increase in operating expenses, and a decline in interest income, partially offset by a decline in the effective income tax rate.
Liquidity and Capital Resources
Cash and cash equivalents and marketable securities totaled $147,848 and $186,442 at January 31, 2009 and July 31, 2008, respectively. Working capital was $257,494 and $287,260 at January 31, 2009 and July 31, 2008, respectively. The Companys balance sheet reflected an increase in the current ratio to 5.3 to 1 at January 31, 2009 as compared to 4.9 to 1 at July 31, 2008, due primarily to a decline in accrued liabilities as a result of the payment of bonuses and voluntary retirement and restructuring costs during the six months ended January 31, 2009.
The Company faces limited exposure to financial market risks, including adverse movements in foreign currency exchange rates and changes in interest rates. These exposures can change over time as business practices evolve and could have a material adverse impact on the Companys financial results. The Companys primary exposure is related to fluctuations between the U.S. dollar and local currencies for the Companys subsidiaries in Canada and Europe.
The carrying amounts reflected in the consolidated balance sheets of cash and cash equivalents, trade receivables, and trade payables approximate fair value at January 31, 2009, due to the short maturities of these instruments.
Cash equivalents totaled $82,148 at January 31, 2009 and consist solely of highly liquid investments with maturities of three months or less from the time of purchase. Marketable securities having maturities from the time of purchase in excess of three month, which totaled $65,700 at January 31, 2009, are stated at amortized cost, approximating fair value. These marketable securities are classified as held-to-maturity.
Net cash used for operating activities was $630 for the six months ended January 31, 2009 as compared to net cash provided by operating activities of $19,387 for the six months ended January 31, 2008. The cash flows used for operating activities in the six months ended January 31, 2009 was due primarily to a net change in operating assets and liabilities of $15,483 partially offset by net income of $1,739, depreciation and amortization of $8,907, a restructuring charge of $3,488, and share-based compensation expense of $2,698. The net change in operating assets and liabilities was due primarily to decreases in accrued liabilities and accounts payable of $10,989 and $1,874, respectively, as well as increases in inventories of $6,427. Partially offsetting this net change in operating assets and liabilities was a decrease in refundable income taxes of $4,002.
The decrease in accrued liabilities of $10,989 was due primarily to the payment of bonuses and voluntary retirement and restructuring costs during the six months ended January 31, 2009. The decrease in accounts payable of $1,874 was due primarily to the timing of vendor payments. The increase in inventories of $6,427 was due primarily to an increase in inventories at B-K Medical as a result of the introduction of two new ultrasound product lines, one of which was introduced late in the second quarter and the other of which will be introduced in the third quarter of fiscal year 2009. The decrease in refundable income taxes of $4,002 was due primarily to the income tax refund of $6,459, which includes interest of $1,065, that was received from the IRS in the second quarter of fiscal year 2009.
Net cash used for investing activities was $60,395 and $60,737 in the six months ended January 31, 2009 and 2008, respectively. The cash used for investing activities in the six months ended January 31, 2009 was due primarily to the purchase of short-term held-to-maturity marketable securities and capital expenditures of $115,957 and $6,065, respectively, partially offset by the maturities of $62,787 of short-term held-to-maturity marketable securities.
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Net cash used for financing activities was $27,555 and $737 in the six months ended January 31, 2009 and 2008, respectively. Net cash used for financing activities in the six months ended January 31, 2009 consisted of $25,022 to repurchase shares of Common Stock and $2,656 for dividends paid to stockholders.
The Company believes that its balances of cash and cash equivalents, marketable securities, and cash flows expected to be generated by future operating
Commitments, Contractual Obligations and Off-Balance Sheet Arrangements
The Companys contractual obligations at January 31, 2009, and the effect such obligations are expected to have on liquidity and cash flows in future periods, are as follows:
Contractual Obligation |
Total |
Less than
1 year |
1 - 3 years |
More than
3 years - 5 years |
More than
5 years |
||||||||||
Operating leases |
$ | 11,391 | $ | 3,286 | $ | 3,998 | $ | 1,120 | $ | 2,987 | |||||
Purchasing obligations |
47,092 | 42,611 | 4,481 | | | ||||||||||
$ | 58,483 | $ | 45,897 | $ | 8,479 | $ | 1,120 | $ | 2,987 | ||||||
As of January 31, 2009, the total liabilities associated with uncertain tax positions under FIN No. 48 were $7,589. Due to the complexity associated with the Companys tax uncertainties, it cannot make a reasonably reliable estimate of the period in which it expects to settle the non-current liabilities associated with these uncertain tax positions. Therefore, these amounts have not been included in the contractual obligations table.
The Company currently has approximately $22,500 in revolving credit facilities with various banks available for direct borrowings. The Companys revolving credit facility agreement contains a number of covenants, including a covenant requiring the Company to maintain a tangible net worth (as defined in the revolving credit facility agreement) of no less than $255,000 as of the end of any fiscal quarter. The Company was in compliance with this covenant at January 31, 2009 with a tangible net worth of approximately $340,400. As of January 31, 2009, there were no direct borrowings or off-balance sheet arrangements.
Critical Accounting Policies and Estimates
This discussion and analysis of the Companys financial condition and results of operations is based on the Companys consolidated financial statements, which have been prepared in accordance with accounting principles generally accepted in the United States of America (GAAP). The Companys most critical accounting policies have a significant impact on the preparation of these consolidated financial statements. These policies include estimates and significant judgments that affect the reported amounts of assets, liabilities, revenues and expenses, and related disclosures of contingent assets and liabilities. The Company continues to have the same critical accounting policies and estimates as are described in Item 7, beginning on page 32, in the Companys Annual Report on Form 10-K for the fiscal year ended July 31, 2008 filed with the United States Securities and Exchange Commission (the SEC) on September 29, 2008. Those policies and estimates relate to revenue recognition and accounts receivable; share-based compensation; inventories; concentration of credit risk; warranty reserve; investment in and advances to affiliated companies; business combinations; intangible assets and other long-lived assets; and income taxes. The Company continues to evaluate its estimates and judgments on an on-going basis. By their nature, these estimates and judgments require management to make its most difficult and subjective judgments, often as a result of the need to make estimates on matters that are inherently uncertain. In the case of the Companys critical accounting policies, these estimates and judgments are based on its historical experience, terms of existing contracts, the Companys observance of trends in the industry, information provided by its customers, and information available from other outside sources, as appropriate.
Recent Accounting Pronouncements
The Company adopted SFAS No. 157, Fair Value Measurements , on August 1, 2008. SFAS No. 157 defines fair value, establishes a methodology for measuring fair value and expands the required disclosure for fair value measurements. During calendar year 2008, the FASB issued the following amendments to SFAS No. 157:
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FASB Staff Position (FSP) No. FAS 157-1, Application of FASB Statement No. 157 to FASB Statement No. 13 and Other Accounting Pronouncements That Address Fair Value Measurements for Purposes of Lease Classification or Measurement under Statement 13 , amends SFAS No. 157 to remove certain leasing transactions from its scope. |
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FSP No. FAS 157-2, Effective Date of FASB Statement No. 157 , delays the effective date of SFAS No. 157 from fiscal year 2008 to the fiscal year ending July 31, 2010 for non-financial assets and non-financial liabilities, except for items that are recognized or disclosed at fair value in the financial statements on a recurring basis (at least annually). The Company is currently evaluating the potential impact of SFAS No. 157 for non-financial assets and non-financial liabilities on its financial position and results of operations. |
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FSP No. FAS 157-3, Determining the Fair Value of a Financial Asset When the Market for That Asset Is Not Active , clarifies the application of SFAS No. 157 in a market that is not active and provides an example to illustrate key considerations in determining the fair value of a financial asset when the market for that financial asset is not active. FSP No. FAS 157-3 was effective upon issuance on October 10, 2008, including for prior periods for which financial statements have not been issued. |
The Company adopted FSP No. FAS 157-1 and FSP No. FAS 157-3 in the first quarter of fiscal year 2009 concurrent with the adoption of SFAS No. 157. The adoption of SFAS No. 157 as amended did not have an impact on the Companys financial position or results of operations. See Note 4 to the Consolidated Financial Statements for additional SFAS No. 157 disclosures.
In February 2007, the FASB issued SFAS No. 159, The Fair Value Option for Financial Assets and Financial Liabilities-including an amendment of SFAS No. 115 . The new statement allows entities to choose, at specified election dates, to measure eligible financial assets and liabilities at fair value that are not otherwise required to be measured at fair value. If a company elects the fair value option for an eligible item, changes in that items fair value in subsequent reporting periods must be recognized in current earnings. The Company adopted SFAS No. 159 on August 1, 2008 concurrent with its adoption of SFAS No. 157. The adoption of SFAS No. 159 did not have an impact on the Companys financial position or results of operations.
In December 2007, the FASB issued SFAS No. 141(R), Business Combinations . SFAS No. 141(R) requires the acquiring entity in a business combination to record all assets acquired and liabilities assumed at their respective acquisition date fair values, changes the recognition of assets acquired and liabilities assumed arising from contingencies, changes the recognition and measurement of contingent consideration, and requires the expensing of acquisition-related costs as incurred. SFAS No. 141(R) also requires additional disclosure of information surrounding a business combination, such that users of the entitys financial statements can fully understand the nature and financial impact of the business combination. SFAS No. 141(R) applies prospectively to business combinations for which the acquisition date is on or after the beginning of the first annual reporting period beginning on or after December 15, 2008, which will be the Companys fiscal year ending July 31, 2010. An entity may not apply it before that date. The provisions of SFAS No. 141(R) will only impact the Company if the Company is a party to a business combination after July 31, 2009.
In December 2007, the FASB issued SFAS No. 160, Noncontrolling Interests in Consolidated Financial Statementsan amendment of Accounting Research Bulletin No. 51 . SFAS No. 160 establishes accounting and reporting standards for ownership interests in subsidiaries held by parties other than the parent, the amount of consolidated net income attributable to the parent and to the noncontrolling interest, changes in a parents ownership interest, and the valuation of retained noncontrolling equity investments when a subsidiary is deconsolidated. SFAS No. 160 also establishes disclosure requirements that clearly identify and distinguish between the interests of the parent and the interests of the noncontrolling owners. This statement is effective for the Company beginning on August 1, 2009. The Company is currently evaluating the potential impact of the adoption of SFAS No. 160 on its consolidated financial position, results of operations, and cash flows.
In April 2008, the FASB issued FSP No. FAS 142-3, Determining the Useful Life of Intangible Assets . FSP No. FAS 142-3 amends the factors an entity should consider in developing renewal or extension assumptions used in determining the useful lives of recognized intangible assets. FSP No. FAS 142-3 is effective for fiscal years beginning after December 15, 2008. The Company does not believe the adoption of FSP No. FAS 142-3 will have a material impact on its consolidated results of operations, financial position, or cash flows.
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In May 2008, the FASB issued SFAS No. 162, The Hierarchy of Generally Accepted Accounting Principles , which will provide a framework for selecting accounting principles to be used in preparing financial statements that are presented in conformity with GAAP for nongovernmental entities. Prior to the issuance of SFAS No. 162, the GAAP hierarchy was defined in the American Institute of Certified Public Accountants (AICPA) Statement on Auditing Standards No. 69, The Meaning of Present Fairly in Conformity With Generally Accepted Accounting Principles . With the issuance of SFAS No. 162, the GAAP hierarchy for nongovernmental entities will move from auditing literature to accounting literature. SFAS No. 162 became effective 60 days following the SECs approval on September 16, 2008 of the Public Company Accounting Oversight Board amendments to AU Section 411, The Meaning of Present Fairly in Conformity With Generally Accepted Accounting Principles . This statement became effective during the second quarter of fiscal year 2009 and did not have an impact on the Companys financial position or results of operations.
In June 2008, the FASB issued FSP No. EITF 03-6-1, Determining Whether Instruments Granted in Share-Based Payment Transactions Are Participating Securities , which classifies unvested share-based payment awards that contain nonforfeitable rights to dividends or dividend equivalents (whether paid or unpaid) as participating securities and requires them to be included in the computation of earnings per share pursuant to the two-class method described in SFAS No. 128, Earnings per Share . This FSP is effective for financial statements issued for fiscal years beginning after December 15, 2008, and interim periods within those years. All prior-period earnings per share data presented are to be adjusted retrospectively (including interim financial statements, summaries of earnings, and selected financial data) to conform with the provisions of this FSP, with early application not permitted. The Company is currently evaluating the effect, if any, that the adoption of FSP No. EITF 03-6-1 will have on its financial position, results of operations and cash flows.
Item 3. | Quantitative and Qualitative Disclosures about Market Risk |
All dollar amounts in this Item 3 are in thousands.
The Company places its cash investments in highcredit-quality financial instruments and, by policy, limits the amount of credit exposure to any one financial institution. The Company faces limited exposure to financial market risks, including adverse movements in foreign currency exchange rates and changes in interest rates. These exposures may change over time as business practices evolve and could have a material adverse impact on the Companys financial results. The Companys primary exposure is related to fluctuations between the U.S. dollar and local currencies for the Companys subsidiaries in Canada and Europe.
The Companys cash and investments include cash equivalents, which the Company considers to be investments purchased with original maturities of three months or less. Investments having original maturities in excess of three months are stated at fair value, and are classified as held-to-maturity. Total interest income for the three months ended January 31, 2009 was $767. An interest rate change of 10% would not have a material impact on the fair value of the Companys investment portfolio or on future earnings.
Item 4. | Controls and Procedures |
The Companys management, with the participation of the Companys principal executive officer and principal financial officer, evaluated the effectiveness of the Companys disclosure controls and procedures as of January 31, 2009. The term disclosure controls and procedures, as defined in Rules 13a-15(e) and 15d-15(e) under the Exchange Act, means controls and other procedures of a company that are designed to ensure that information required to be disclosed by the company in the reports that it files or submits under the Exchange Act is recorded, processed, summarized, and reported, within the time periods specified in the SECs rules and forms. Disclosure controls and procedures include, without limitation, controls and procedures designed to ensure that information required to be disclosed by a company in the reports that it files or submits under the Exchange Act is accumulated and communicated to the companys management, including its principal executive officer and principal financial officer, as appropriate, to allow timely decisions to be made regarding required disclosure. It should be noted that any system of controls and procedures, however well designed and operated, can provide only reasonable, and not absolute, assurance that the objectives of the system are met and that management necessarily applies its judgment in evaluating the cost-benefit relationship of possible controls and procedures. Based on the evaluation of the Companys disclosure controls and procedures as of January 31, 2009, the Companys principal executive officer and principal financial officer concluded that, as of such date, the Companys disclosure controls and procedures were effective at the reasonable assurance level.
There were no changes to the Companys internal control over financial reporting during the quarter ended January 31, 2009 that have materially affected, or are reasonably likely to materially affect, the Companys internal control over financial reporting.
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Part II. OTHER INFORMATION
Item 1A. | Risk Factors |
You should carefully consider the risks described below before making an investment decision with respect to the Companys Common Stock. Additional risks not presently known to the Company, or that the Company currently deems immaterial, may also impair the Companys business. Any of these could have a material and negative effect on the Companys business, financial condition, or results of operations.
Because a significant portion of the Companys revenue currently comes from a small number of customers, any decrease in revenue from these customers could harm the Companys operating results.
The Company depends on a small number of customers for a large portion of its business, and changes in its customers orders may have a significant impact on the Companys operating results. If a major customer significantly reduces the amount of business it does with the Company, there would be an adverse impact on its operating results.
The Company had three customers, as set forth in the table below, which individually accounted for 10% or more of the Companys net product and engineering revenue during either the three or six months ended January 31, 2009 or 2008.
Three Months Ended
January 31, |
Six Months Ended
January 31, |
|||||||||||
2009 | 2008 | 2009 | 2008 | |||||||||
Philips |
14 | % | (*) | 16 | % | (*) | ||||||
Toshiba |
18 | % | 19 | % | 15 | % | 19 | % | ||||
L-3 Communications |
(*) | 13 | % | (*) | 12 | % |
Note (*): Total product and engineering revenues were less than 10% in this period.
The Companys top ten customers combined for approximately 68% and 67% of the Companys total product and engineering revenue for the three months ended January 31, 2009 and 2008, respectively, and 69% and 68% for the six months ended January 31, 2009 and 2008, respectively. Philips and Toshiba also accounted for 16% and 12%, respectively, of net accounts receivable at January 31, 2009.
Although the Company is seeking to broaden its customer base, it will continue to depend on sales to a relatively small number of major customers. Because it often takes significant time to replace lost business, it is likely that the Companys operating results would be adversely affected if one or more of the Companys major customers were to cancel, delay, or reduce significant orders in the future. The Companys customer agreements typically permit the customer to discontinue future purchases after timely notice.
In addition, the Company generates significant accounts receivable in connection with the products the Company sells and the services it provides to its major customers. Although the Companys major customers are large corporations, if one or more of its customers were to become insolvent or otherwise be unable to pay for the Companys products and services, the Companys operating results and financial condition could be adversely affected.
Competition from existing or new companies in the medical and security imaging technology industry could cause the Company to experience downward pressure on prices, fewer customer orders, reduced margins, the inability to take advantage of new business opportunities, and the loss of market share.
The Company operates in a highly competitive industry. The Company is subject to competition based on product design, performance, pricing, quality, and service offerings, and management believes the Companys innovative engineering and product reliability have been important factors in its growth. While the Company tries to maintain competitive pricing on those products which are directly comparable to products manufactured by others, in many instances the Companys products will conform to more exacting specifications and carry a higher price than analogous products manufactured by others.
The Companys competitors include divisions of larger, more diversified organizations as well as specialized companies. Some of them have greater resources and larger staffs than the Company has. Many of the Companys existing and potential OEM customers have the ability to design and manufacture internally the products that the Company manufactures for them. The Company faces competition from the research and product development groups and manufacturing operations of its existing and potential customers, who continually compare the benefits of internal research, product development, and manufacturing with the costs and benefits of outsourcing.
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The Company depends on its suppliers, some of which are the sole source for certain components, and its production could be substantially curtailed if these suppliers were not able to meet the Companys demands and alternative sources were not available.
The Company orders raw materials and components to complete its customers orders, and some of these raw materials and components are ordered from sole-source suppliers. Although the Company works with its customers and suppliers to minimize the impact of shortages in raw materials and components, the Company sometimes experiences short-term adverse effects due to price fluctuations and delayed shipments. In the past, there have been industry-wide shortages of electronics components. If a significant shortage of raw materials or components were to occur, the Company might have to delay shipments or pay premium pricing, which could adversely affect its operating results. In some cases, supply shortages of particular components could substantially curtail the Companys production of products using these components. The Company is not always able to pass on price increases to its customers. Accordingly, some raw material and component price increases could adversely affect its operating results. The Company also depends on a small number of suppliers to provide many of the other raw materials and components that it uses in its business. Some of these suppliers are affiliated with customers or competitors, and others are small companies. If the Company were unable to continue to purchase these raw materials and components from its suppliers, its operating results could be adversely affected. Because many of the Companys costs are fixed, its margins depend on the volume of output at its facilities, and a reduction in volume could adversely affect its margins.
The Company relies on successful performance by and relationships with subcontractors, which reliance could have a material adverse effect on its results of operations and financial condition.
The Company has formed arrangements with subcontractors for various services and components. The Company has formed such arrangements because it is commercially more efficient to outsource such services and purchase such components than it would be for it to perform or manufacture such services and components, which in some cases require, among other things, a high degree of technical skill and advanced equipment that is not practical or cost-effective for it to develop or acquire. As a result, if one of the Companys subcontractors were to experience quality problems, capacity constraints, decreased yields, or delivery delays, or were to raise prices significantly, the Company could face product liability claims, product shortages, decreased revenues or lost customers, which could adversely affect its operating results.
If the Company were to be left with excess inventory, its operating results could be adversely affected.
Because of long lead times and specialized product designs, in certain cases the Company purchases components and manufactures products in anticipation of customer orders based on customer forecasts. For a variety of reasons, such as decreased end-user demand for the Companys products, its customers might not purchase all of the products that it has manufactured or for which it has purchased components. In either event, the Company would attempt to recoup material and manufacturing costs by means such as returning components to its vendors, disposing of excess inventory through other channels, or requiring its OEM customers to purchase or otherwise compensate it for such excess inventory. Some of the Companys significant customer agreements do not give it the ability to require its OEM customers to do this. To the extent that the Company was unsuccessful in recouping its material and manufacturing costs, its net sales and operating results could be adversely affected. Moreover, carrying excess inventory would reduce the working capital the Company has available to continue to operate and grow its business.
Uncertainties and adverse trends affecting the Companys industry or any of its major customers could adversely affect its operating results.
The Companys business operates primarily within two major markets within the electronics industry, Medical Technology Products and Security Technology Products, which are subject to rapid technological change, pricing, and margin pressure. These markets have historically been cyclical and subject to significant downturns characterized by diminished product demand, rapid declines in average selling prices, and production over-capacity. In addition, changes in government policy relating to reimbursement for the purchase and use of medical and security-related capital equipment could also affect the Companys sales. The Companys customers markets are also subject to economic cycles and are likely to experience recessionary periods in the future. The economic conditions affecting the Companys industry in general or any of its major customers in particular, might adversely affect its operating results. The Companys other businesses are subject to the same or greater technological and cyclical pressures.
Over the last nine months, the Companys Medical Technology Products OEM customers have been impacted by the DRA, which reduced government reimbursement rates for doctors utilizing medical imaging procedures for their patients. In addition, the deterioration of global economic conditions over the last six months has resulted in reduced endowments and funding of hospitals and clinics. In response, these end users have begun to reduce the capital available for investment in new facilities, expansions or upgrades. As such, Medical Technology Products OEM customers have experienced reductions in demand for their products and have in turn reduced their procurement spending.
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The Security Technology Products operating results could be negatively impacted by a reduction in the level of government funding, delays in the expansion of airport terminals, and decreases in airline passenger volume.
The Companys customers delay or inability to obtain any necessary United States or foreign regulatory clearances or approvals for their products could have a material adverse effect on the Companys business.
The Companys products are used by a number of its customers in the production of medical devices that are subject to a high level of regulatory oversight. A delay in obtaining or inability to obtain any necessary United States or foreign regulatory clearances or approvals for products could have a material adverse effect on the Companys business. The process of obtaining clearances and approvals can be costly and time-consuming. There is a further risk that any approvals or clearances, once obtained, might be withdrawn or modified. Medical devices cannot be marketed in the United States without clearance from the United States Food and Drug Administration (FDA). Medical devices sold in the United States must also be manufactured in compliance with FDA rules and regulations, which regulate the design, manufacturing, packing, storage, and installation of medical devices. Moreover, medical devices are required to comply with FDA regulations relating to investigational research and labeling. States may also regulate the manufacturing, sale, and use of medical devices. Medical devices are also subject to approval and regulation by foreign regulatory and safety agencies.
The Companys business strategy involves the pursuit of acquisitions or business combinations, which, if consummated, could be difficult to integrate, disrupt the Companys business, dilute stockholder value, or divert management attention.
As part of the Companys business strategy, the Company might consummate acquisitions or business combinations. Acquisitions are typically accompanied by a number of risks, including the difficulty of integrating the operations and personnel of the acquired companies, the potential disruption of the Companys ongoing business and distraction of management, expenses related to the acquisition, and potential unknown liabilities associated with acquired businesses. If the Company does not successfully complete acquisitions that it pursues in the future, it could incur substantial expenses and devote significant management time and resources without generating any benefit to the Company. In addition, substantial portions of the Companys available cash might be utilized as consideration for these acquisitions.
The Companys annual and quarterly operating results are subject to fluctuations, which could affect the market price of its Common Stock.
The Companys annual and quarterly results may vary significantly depending on various factors, many of which are beyond the Companys control, and may not meet the expectations of securities analysts or investors. If this occurs, the price of the Companys Common Stock could decline. These factors include:
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variations in the timing and volume of customer orders relative to the Companys manufacturing capacity; |
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introduction and market acceptance of the Companys customers new products; |
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changes in demand for the Companys customers existing products; |
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the timing of the Companys expenditures in anticipation of future orders; |
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effectiveness in managing the Companys manufacturing processes; |
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changes in competitive and economic conditions generally or in the Companys customers markets; |
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changes in the cost or availability of components or skilled labor; |
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changes in the Companys effective tax rate; |
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fluctuations in manufacturing yields; |
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foreign currency exposure; and |
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investor and analyst perceptions of events affecting the Company, its competitors, and/or its industry. |
A delay in anticipated sales could result in the deferral of the associated revenue beyond the end of a particular quarter, which would have a significant effect on the Companys operating results for that quarter. In addition, most of the Companys operating expenses do not vary directly with net revenues and are difficult to adjust in the short term. As a result, if revenues for a particular quarter were below the Companys expectations, the Company could not proportionately reduce operating expenses for that quarter. Hence, the revenue shortfall could have a disproportionate adverse effect on its operating results for that quarter.
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Loss of any of the Companys key personnel could hurt its business because of their industry experience and their technological expertise.
The Company operates in a highly competitive industry and depends on the services of its key senior executives and its technological experts. The loss of the services of one or several of its key employees or an inability to attract, train, and retain qualified and skilled employees, specifically engineering and operations personnel, could result in the loss of customers or otherwise inhibit the Companys ability to operate and grow its business successfully.
If the Company is unable to maintain its expertise in research and product development, manufacturing processes, and marketing new products, it will not be able to compete successfully.
The Company believes that its future success depends upon its ability to provide research and product development, provide manufacturing services that meet the changing needs of its customers, and market new products. This requires that the Company successfully anticipate and respond to technological changes in design and manufacturing processes in a cost-effective and timely manner. As a result, the Company continually evaluates the advantages and feasibility of new product designs, and manufacturing processes. Further, there can be no assurance that the Company will be able to develop and introduce new and improved products in a timely or efficient manner or that new and improved products, if developed, will achieve market acceptance.
The September 11, 2001 terrorist attacks and the creation of the U.S. Department of Homeland Security have increased financial expectations that may not materialize.
The September 11, 2001 terrorist attacks and the subsequent creation of the U.S. Department of Homeland Security have created increased interest in the Companys security and inspection systems. However, the level of demand for the Companys products is not predictable and may vary over time. The Company does not know what solutions will continue to be adopted by the U.S. Department of Homeland Security as a result of terrorism and whether its products will continue to be a part of the solution. Additionally, should the Companys products be considered as a part of the future security solution, it is unclear what the level of purchases may be and how quickly funding to purchase the Companys products may be made available. These factors may adversely impact the Company and create unpredictability in revenues and operating results.
The Company is exposed to risks associated with international operations and markets.
The Company markets and sells products in international markets, and has established offices and subsidiaries in Denmark, Germany, Italy, and Canada. Revenues from international operations accounted for 20% and 22% of total revenues for the three months ended January 31, 2009 and 2008, respectively, and 19% and 20% for the six months ended January 31, 2009 and 2008, respectively. From its U.S. operations, the Company also ships directly to customers in Europe and Asia, for which shipments accounted for 45% and 32% of total revenues for the three months ended January 31, 2009 and 2008, respectively, and 43% and 30% for the six months ended January 31, 2009 and 2008, respectively. There are inherent risks in transacting business internationally, including:
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changes in applicable laws and regulatory requirements; |
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export and import restrictions; |
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export controls relating to technology; |
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tariffs and other trade barriers; |
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intellectual property laws that offer less protection for the Companys proprietary rights; |
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difficulties in staffing and managing foreign operations; |
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longer payment cycles; |
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problems in collecting accounts receivable; |
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political instability; |
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fluctuations in currency exchange rates; |
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expatriation controls; and |
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potential adverse tax consequences. |
There can be no assurance that one or more of these factors will not have a material adverse effect on the Companys future international activities and, consequently, on its business and results of operations.
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If the Company becomes subject to intellectual property infringement claims, it could incur significant expenses and could be prevented from selling specific products.
The Company may become subject to claims that it infringes the intellectual property rights of others in the future. The Company cannot ensure that, if made, these claims will not be successful. Any claim of infringement could cause the Company to incur substantial costs defending against the claim even if the claim is invalid, and could distract management from other business. Any judgment against the Company could require substantial payment in damages and could also include an injunction or other court order that could prevent the Company from offering certain products.
If operators of the Companys security and inspection systems fail to detect weapons, explosives or other devices that are used to commit a terrorist act, the Company could be exposed to product liability and related claims for which it may not have adequate insurance coverage.
The Companys business exposes it to potential product liability risks that are inherent in the development, manufacturing, sale and service of security inspection systems. The Companys customers use its security and inspection systems to help them detect items that could be used in performing terrorist acts or other crimes. The training, reliability and competence of the customers operators are crucial to the detection of suspicious items. In addition, the Companys security and inspection systems are not designed to work under all circumstances. The Company tests the reliability of its security and inspection systems during both their development and manufacturing phases. The Company also performs such tests if it is requested to perform installation, warranty or post-warranty servicing. However, the Companys security inspection systems are advanced mechanical and electronic devices and therefore can malfunction.
As a result of the September 11, 2001, and 1993 World Trade Center bombing attacks, and the potential for future attacks, product liability insurance coverage for such threats is extremely difficult and costly to obtain. It is possible, subject to the applicability of the Support Anti-terrorism by Fostering Effective Technologies Act of 2002 (the SAFETY Act), that if the Company was found to liable following a major act of terrorism, its insurance coverage might not fully cover the claims for damages.
The SAFETY Act is a federal law enacted to provide certain legal liability protections for providers of certain anti-terrorism technologies. If applicable to claims against Analogic, the SAFETY Act could mitigate some of this risk.
The Companys security and inspections systems business depends in part on purchases of products and services by the U.S. federal government and its agencies, which purchases may be only partially funded, and are subject to potential termination and reductions and delays in government spending.
Sales of the Companys security and inspection systems, in some cases as an indirect subcontractor or team member with prime contractors and in some cases directly, to the U.S. Government and its agencies accounted for approximately 11% and 13% of the Companys total product and engineering revenues in the three months ended January 31, 2009 and 2008, respectively, and approximately 12% and 14% in the six months ended January 31, 2009 and 2008, respectively. The Companys security and inspection systems are included in many different domestic programs. Over the lifetime of a program, the award of many different individual contracts and subcontracts could impact the Companys products requirements. The funding of U.S. Government programs is subject to Congressional appropriations. Although multiple-year contracts may be planned in connection with major procurements, Congress generally appropriates funds only on a single fiscal year basis. Consequently, programs are often only partially funded initially, and additional funds are committed only as Congress makes further appropriations and prime contracts receive such funding. The reduction or delay in funding or termination of a government program in which the Company is involved could result in a loss of or delay in receiving anticipated future revenues attributable to that program and contracts or orders received. The U.S. Government could reduce or terminate a prime contract under which the Company is a subcontractor or team member irrespective of the quality of our products or services. The termination of a program or delays in the reduction in or failure to commit additional funds to a program in which the Company is involved could negatively impact its revenues and have a material adverse effect on the Companys financial condition and results of operations.
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Item 2. | Unregistered Sales of Equity Securities and Use of Proceeds |
The following table contains information about purchases by the Company of its equity securities during the three months ended January 31, 2009.
Period |
Total Number
of Shares Purchased |
Average Price Paid
per Share (2) |
Total Number of
Shares Purchased as Part of Publicly Announced Plans or Programs |
Maximum Number
(or Approximate Dollar Value) of Shares that May Yet Be Purchased Under the Plans or Programs |
|||||||
11/1/08-11/30/08 |
215,295 | (1,3) | $ | 37.85 | 211,905 | $ | 13,493,746 | ||||
12/1/08-12/31/08 |
436,665 | (1,3) | 31.00 | 436,115 | | ||||||
1/1/09-1/31/09 |
470 | (1) | 28.16 | | | ||||||
Total |
652,430 | $ | 33.26 | 648,020 | $ | | |||||
(1) | Includes shares of 3,390, 550, and 470 surrendered by employees in order to meet tax withholding obligations in connection with the vesting of restricted stock awards in November 2008, December 2008, and January 2009, respectively. |
(2) | For purposes of determining the number of shares to be surrendered as described in Note 1, the price per share deemed to be paid was the closing price of the Companys Common Stock on the NASDAQ Global Select Market on the vesting date or purchase date. |
(3) | Includes shares of 211,905 and 436,115 purchased in open-market transactions in November 2008 and December 2008, respectively. These shares were purchased pursuant to a repurchase program authorized by the Board that was announced on October 13, 2008 to repurchase up to $25.0 million of the Companys Common Stock. The Company completed the repurchase program, which was funded using the Companys available cash, in December 2008. During the second quarter of fiscal year 2009, the Company repurchased 648,020 shares of Common Stock under this repurchase program for $21.5 million at an average purchase price of $33.21 per share. |
Item 4. | Submission of Matters to a Vote of Security Holders |
On January 26, 2009, the Company held its 2009 Annual Meeting of Stockholders (the Meeting). At the Meeting, the votes on the matters presented to the Companys stockholders were as follows:
(1) To elect two Class II directors for a one year term, to hold office until the 2010 Annual Meeting of Stockholders and until their respective successors have been duly elected and qualified:
Votes For | Votes Withheld | |||
James J. Judge |
10,890,181 | 1,514,563 | ||
Gerald L. Wilson |
11,054,880 | 1,349,864 |
The remaining terms of M. Ross Brown, Bernard M. Gordon, James W. Green, Michael T. Modic, Fred B. Parks, Sophie V. Vandebroek, and Edward F. Voboril continued after the meeting.
(2) To amend the Companys Articles of Organization and By-Laws to implement majority voting in connection with the election of directors:
Votes For |
Votes Against | Votes Abstain | Broker Non Votes | |||
11,222,287 |
442,091 | 7,147 | 733,225 |
(3) To ratify the appointment of PricewaterhouseCoopers LLP as the Companys independent registered public accounting firm for the fiscal year ending July 31, 2009:
Votes For |
Votes Against |
Votes Abstain |
Broker Non Votes |
|||
11,752,169 |
649,927 | 2,654 | 0 |
Please see the Companys Proxy Statement filed with the SEC on November 28, 2008 in connection with the Meeting for a complete description of the matters voted upon.
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Item 6. | Exhibits |
Exhibit |
Description |
|
10.1 | Change of Control Agreement Dated December 24, 2008 Between Analogic Corporation and John J. Millerick | |
10.2 | Amendment Dated December 24, 2008 to Letter Agreement Between Analogic Corporation and James W. Green Dated April 20, 2007 | |
10.3 | Amendment Dated December 24, 2008 to Letter Agreement Between Analogic Corporation and John J. Fry Dated October 29, 2007 | |
10.4 |
Analogic Corporation Severance Plan For Management Employees, As Amended and Restated, Effective As Of December 31, 2008 |
|
31.1 | Certification of Principal Executive Officer pursuant to Rule 13a-14(a)/Rule 15d-14(a) of the Securities Exchange Act of 1934, as amended | |
31.2 | Certification of Principal Financial Officer pursuant to Rule 13a-14(a)/Rule 15d-14(a) of the Securities Exchange Act of 1934, as amended | |
32.1 | Certification of Principal Executive Officer pursuant to Rule 13a-14(b)/Rule 15d-14(b) of the Securities Exchange Act of 1934, as amended | |
32.2 | Certification of Principal Financial Officer pursuant to Rule 13a-14(b)/Rule 15d-14(b) of the Securities Exchange Act of 1934, as amended |
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Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned thereunto duly authorized.
ANALOGIC CORPORATION | ||||
Date: March 6, 2009 | /s/ James W. Green | |||
James W. Green | ||||
President and | ||||
Chief Executive Officer | ||||
(Principal Executive Officer) | ||||
Date: March 6, 2009 | /s/ John J. Millerick | |||
John J. Millerick | ||||
Senior Vice President, | ||||
Chief Financial Officer and Treasurer | ||||
(Principal Financial Officer) |
40
Exhibit |
Description |
|
10.1 | Change of Control Agreement Dated December 24, 2008 Between Analogic Corporation and John J. Millerick | |
10.2 | Amendment Dated December 24, 2008 to Letter Agreement Between Analogic Corporation and James W. Green Dated April 20, 2007 | |
10.3 | Amendment Dated December 24, 2008 to Letter Agreement Between Analogic Corporation and John J. Fry Dated October 29, 2007 | |
10.4 |
Analogic Corporation Severance Plan For Management Employees, As Amended and Restated, Effective As Of December 31, 2008 |
|
31.1 | Certification of Principal Executive Officer pursuant to Rule 13a-14(a)/Rule 15d-14(a) of the Securities Exchange Act of 1934, as amended | |
31.2 | Certification of Principal Financial Officer pursuant to Rule 13a-14(a)/Rule 15d-14(a) of the Securities Exchange Act of 1934, as amended | |
32.1 | Certification of Principal Executive Officer pursuant to Rule 13a-14(b)/Rule 15d-14(b) of the Securities Exchange Act of 1934, as amended | |
32.2 | Certification of Principal Financial Officer pursuant to Rule 13a-14(b)/Rule 15d-14(b) of the Securities Exchange Act of 1934, as amended |
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Exhibit 10.1
ANALOGIC CORPORATION
CHANGE OF CONTROL AGREEMENT
THIS AGREEMENT (the Agreement ) by and between Analogic Corporation, a Massachusetts corporation (the Company ), and John Millerick (the Executive ), dated December 24, 2008 (the Agreement Date).
The Board of Directors of the Company (the Board ) has determined that it is in the best interests of the Company and its stockholders to assure that the Company will have the continued dedication of the Executive, notwithstanding the possibility, threat, or occurrence of a Change of Control (as defined below). Therefore, to accomplish these objectives, the Board has caused the Company to enter into this Agreement.
NOW, THEREFORE, IT IS HEREBY AGREED AS FOLLOWS:
1. Certain Definitions
(a) An Affiliate of, or a Person Affiliated with, a specified Person, means a Person that directly, or indirectly through one or more intermediaries, controls, is controlled by, or is under common control with, the Person specified.
(b) Effective Date means the first date during the Change of Control Period on which a Change of Control occurs; provided that the Executive is employed by the Company on that date.
(c) Change of Control Period means the period beginning on the Agreement Date and ending on the third anniversary of the Agreement Date. However, beginning on the first anniversary of the Agreement Date, and on each successive anniversary of the Agreement Date (each of such first and successive anniversaries being referred to herein as a Renewal Date ), the Change of Control Period will be automatically extended so that it terminates 36 months after the Renewal Date, unless, at least 60 days prior to that Renewal Date, the Company notifies the Executive that the Change of Control Period will not be so extended.
(d) Company means, collectively, the Company and its Subsidiaries except for purposes of Section 2 or where the context clearly requires otherwise.
(e) Person has the meaning given to that term in Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, as amended (the Exchange Act), but excluding any Person described in and satisfying the conditions of Rule 13d-1(b)(1) under Section 13 of the Exchange Act.
(f) Subsidiary means any corporation, limited liability company, partnership or other entity that is an Affiliate of the Company.
2. Change of Control . Change of Control means any of the following provided that such event also constitutes a change in control event within the meaning of Section 409A of the Internal Revenue Code and the guidance issued thereunder Section 409A.
(a) any acquisition or series of acquisitions by any Person other than (i) the Company, (ii) any Subsidiary, (iii) any employee benefit plan of the Company or any Subsidiary, or (iv) any Person holding common shares of the Company for or pursuant to the terms of such employee benefit plan, which acquisition or acquisitions result in such Person (such Person being referred to herein as the Acquirer ) becoming the beneficial owner (as defined in Rule 13d-3 under the Exchange Act), directly or indirectly, of securities of the Company (the Acquired Company Securities ) constituting 35% or more of either (i) the then outstanding shares of the common stock of the Company ( Outstanding Company Common Stock ), or (ii) the combined voting power of the Companys then outstanding securities that are then entitled to vote generally in the election of directors of the Company ( Outstanding Company Voting Securities ), except that any such acquisition or acquisitions of Outstanding Company Common Stock or Outstanding Company Voting Securities by the Acquirer will not constitute a Change of Control where, and so long as, the Acquirer (i) does not ever exercise the voting power of its Outstanding Company Common Stock or its Outstanding Company Voting Securities, (ii) does not ever otherwise exercise control with respect to any matter concerning or affecting the Company, and (iii) promptly, but in no event longer than six (6) months after it acquires the Outstanding Company Common Stock or Outstanding Company Voting Securities, sells, transfers, assigns, or otherwise disposes of, to a person that is not an Affiliate of the Acquirer, that portion of the Acquired Company Securities which is necessary to achieve all of the following results and objectives: to cause the Acquirer to become the beneficial owner (as defined in Rule 13d-3 under the Exchange Act), directly or indirectly, of Acquired Company Securities that constitute less than 20% of (A) the then existing Outstanding Company Common Stock, and (B) the then existing Outstanding Company Voting Securities; or
(b) approval by the stockholders of the Company of an agreement to merge or consolidate or otherwise reorganize, with or into one or more Persons that are not Affiliates of the Company, as a result of which less than 50% of the outstanding voting securities of the surviving or resulting entity immediately after any such merger, consolidation, or reorganization are, or will be, owned, directly or indirectly, by Persons that were stockholders of the Company immediately before such merger, consolidation, or reorganization.
3. Employment Period . The Company hereby agrees to continue the Executive in its employ, and the Executive hereby agrees to remain in the employ of the Company, for the period commencing on the Effective Date and ending at the end of the 12th month following the Effective Date (the Employment Period ).
4. Terms of Employment
(a) Position and Duties .
(i) During the Employment Period, (A) the Executives position (including, without limitation, offices, titles, and reporting requirements), authority, duties, and responsibilities shall be at least commensurate in all material respects with the most significant of, and the highest grade or level of, those that were held or exercised by the Executive or assigned to the Executive at any time during the 120-day period immediately preceding the Effective Date, and (B) the Executives services shall be performed at the location where the Executive was employed immediately preceding the Effective Date or any other location less than 35 miles from Ipswich, MA.
(ii) During the Employment Period, and excluding any periods of vacation and sick leave to which the Executive is entitled, the Executive agrees to devote full-time attention and time during normal business hours to the business and affairs of the Company and, to the extent necessary to discharge the responsibilities assigned to the Executive hereunder, to
2
use the Executives reasonable best efforts to perform faithfully and efficiently such responsibilities. During the Employment Period, it shall not be a violation of this Agreement for the Executive to (A) serve on corporate, civic, or charitable boards or committees, (B) deliver lectures, fulfill speaking engagements, or teach at educational institutions, and (C) manage personal investments, so long as these activities do not significantly interfere with the performance of the Executives responsibilities as an employee of the Company in accordance with this Agreement, if and to the extent that any such activities have been conducted by the Executive prior to the Effective Date.
(b) Compensation .
(i) Base Salary . During the Employment Period, the Executive shall receive from the Company an annual base salary ( Annual Base Salary ), paid at a biweekly rate, equal to the base salary in effect immediately prior to the Effective Date. During the Employment Period, the Executives Annual Base Salary shall be reviewed at least annually and shall be adjusted at any time and from time to time as shall be consistent with adjustments in base salary generally awarded in the ordinary course of business to other peer executives of the Company. Annual Base Salary shall not be reduced after any such increase, and, after any such increase, the term Annual Base Salary shall refer to the Annual Base Salary as so increased.
(ii) Annual Bonus . The Executive shall be eligible for an annual bonus (the Annual Bonus ) in accordance with the Companys then existing incentive plan.
(iii) Incentive, Savings, Retirement and Welfare Plans . The Executive, and the Executives family, as the case may be, shall be eligible to participate in and shall receive benefits under, during the Employment Period, all incentive, savings, retirement and welfare plans, practices, policies, and programs generally applicable to other peer executives of the Company, but in no event shall such plans, practices, policies, and programs provide the Executive (or the Executives family) with incentive opportunities (measured with respect to both regular and special incentive opportunities), savings opportunities, retirement benefits opportunities or welfare benefits that are, in each case, less favorable, in the aggregate, than the most favorable of the corresponding opportunities that were provided by the Company for the Executive under such plans, practices, policies, and programs as were in effect at any time during the 120-day period immediately preceding the Effective Date.
(iv) Business Expenses . During the Employment Period, the Executive shall be entitled to receive from the Company prompt reimbursement for all reasonable business expenses incurred by the Executive in accordance with the practices, policies, and procedures of the Company.
(v) Fringe Benefits . During the Employment Period, the Executive shall be entitled to receive from the Company fringe benefits in accordance with the practices, policies, and programs of the Company as were in effect for the Executive at any time during the 120-day period immediately preceding the Effective Date.
(vi) Vacation . During the Employment Period, the Executive shall be entitled to receive from the Company paid vacation in accordance with the most favorable plans, practices, policies, and programs of the Company as were in effect for the Executive at any time during the 120-day period immediately preceding the Effective Date.
3
5. Termination of Employment .
(a) Death or Disability . The Executives employment shall terminate automatically upon the Executives death during the Employment Period. If the Company determines in good faith that a Disability (as defined below) of the Executive has occurred during the Employment Period, it may give to the Executive written notice of its intent to terminate the Executives employment with the Company. The Executives employment with the Company shall terminate effective on the Executives receipt of such notice (the Disability Effective Date ). Disability means the absence of the Executive from the Executives duties with the Company on a full-time basis for 60 consecutive business days as a result of incapacity due to mental or physical illness which is determined by the Board acting reasonably to be total and permanent.
(b) Cause . The Company may terminate the Executives employment with the Company during the Employment Period for Cause (as defined below). Cause means a material breach by the Executive of this Agreement, gross negligence or willful misconduct in the Executives performance of his or her duties with the Company, dishonesty to the Company on the part of the Executive, or the commission by the Executive of a felony that results in a felony conviction of the Executive in a court of competent jurisdiction.
(c) Good Reason . The Executive may terminate the Executives employment with the Company during the Employment Period for Good Reason (as defined below). Good Reason means:
(i) the assignment to the Executive of any materially lesser responsibilities or duties inconsistent in any respect with the Executives position (including, without limitation, offices, titles, and reporting requirements), authority, duties, or responsibilities as contemplated by Section 4(a),
(ii) any failure by the Company to comply with any of the provisions of Section 4(b),
(iii) the Company requiring the Executive to be based at any location other than those locations described in Section 4(a)(i);
(iv) any purported termination by the Company of the Executives employment other than as expressly permitted by this Agreement; or
(v) any failure by any successor to the Company to comply with and satisfy Section 12(c), provided that such successor has received at least ten days prior written notice from the Company or the Executive of the requirements of Section 12(c).
(d) Notice of Termination .shall be delivered as follows:
(i) Any termination by the Executive for Good Reason shall be communicated by means of a written notice delivered by the Executive to the Company within 90 days 1 of the initial existence of the occurrence or condition on which the Executive bases his claim for Good Reason. If the condition is capable of being corrected, the Company shall have 30 days during which it may remedy the condition. If the condition is fully remedied within such time period, the Company shall
4
notify the Executive in writing with in the 30 day correction period and the Company shall not owe the amounts otherwise required to be paid under this Agreement. If the condition is not corrected, the Executive must leave employment within one year after the Company fails to cure the condition giving rise to the Executives claim for Good Reason.
(ii) Any termination by the Company for Cause or by the Executive for Good Reason shall be communicated by a Notice of Termination (as defined below) to the other party. A Notice of Termination means a written notice that (I) indicates the specific termination provision in this Agreement relied upon, (ii) to the extent applicable, sets forth in reasonable detail the facts and circumstances claimed to provide a basis for termination of the Executives employment under the provision so indicated, and (iii) if the Date of Termination (as defined below) is other than the date of receipt of such notice, specifies the Date of Termination (which shall be not more than 15 days after the giving of such notice). The failure by the Executive or the Company to set forth in the Notice of Termination any fact or circumstance hat contributes to a showing of Good Reason or Cause, as the case may be, shall not waive any right of the Executive or the Company or preclude the Executive or the Company from asserting such fact or circumstance in enforcing the Executives or the Companys rights.
(e) Date of Termination . Date of Termination means the date of receipt of the Notice of Termination or any later date of termination that may be specified in the Notice of Termination, provided, however, that (I) if the Executives employment is terminated by the Company other than for Cause or Disability, the Date of Termination means the date on which the Company notifies the Executive of such termination, and (ii) if the Executives employment is terminated by reason of death or Disability, the Date of Termination means the date of death of the Executive or the Disability Effective Date, respectively.
6. Obligations of the Company upon Termination .
(a) All payments of obligations of the Company under this Section 6 shall be distributed subject to the provisions of Appendix A.
(b) Death . If the Executives employment is terminated by reason of the Executives death during the Employment Period, this Agreement shall terminate without further obligations under this Agreement to the Executives legal representatives, except for the following obligations (the amounts described in clauses (I), (ii), and (iii) are Accrued Obligations ):
(i) payment of the Executives Annual Base Salary through the Date of Termination to the extent not yet paid;
(ii) Payment of any Annual Bonus earned but not yet paid; and
(iii) Payment of any accrued vacation pay not yet paid.
All Accrued Obligations shall be paid to the Executives estate or beneficiary, as applicable, in a lump sum in cash within 30 days after the Date of Termination.
(c) Disability . If the Executives employment is terminated by reason of the Executives Disability during the Employment Period, this Agreement shall terminate without further obligations under the Agreement to the Executive, except for all Accrued Obligations. All Accrued Obligations shall be paid to the Executive in a lump sum in cash within 30 days after the Date of Termination.
5
(d) Cause; Other Termination by the Executive . If the Executives employment is terminated for Cause, or if Executive terminates employment for other than Good Reason, in either case during the Employment Period, this Agreement shall terminate without further obligations under this Agreement to the Executive, except for the obligation to pay to the Executive the Annual Base Salary through the Date of Termination to the extent not yet paid.
(e) Other Termination by the Company; Good Reason . If, during the Employment Period, the Company shall terminate the Executives employment other than for Cause and not by reason of the Executives Disability or the Executive shall terminate his or her employment for Good Reason:
(i) the Company shall pay to the Executive the aggregate of the following amounts, such amounts to be payable by the Company in a lump sum in cash: subject to the satisfaction of the terms of Section 8 hereof within 60 days after the Date of Termination:
A. all Accrued Obligations (which shall be paid within 30 days after the Date of Termination ;
B. one times the sum of (i) the Executives Annual Base Salary, and (ii) any Annual Bonus to which the Executive is entitled under the Companys then existing incentive plan;
C. up to $25,000 for executive outplacement services actually utilized by the Executive and directly related to the termination of employment, on the receipt by the Company of written receipts or other appropriate documentation;
(ii) for 12 months, or such longer period as any plan, practice, policy, or program may provide, the Company shall continue welfare benefits to the Executive and, where applicable, the Executives family at least equal to those which would have been provided to them in accordance with the plans, practices, policies, and programs described in Section 4(b)
(iii) if the Executives employment had not been terminated; provided, however, that if the Executive becomes employed elsewhere during the Employment Period and is thereby afforded welfare and insurance benefits that are comparable to those described in Section 4(b)(iii), the Companys obligation to continue providing the Executive with such benefits shall cease or be correspondingly reduced, as the case may be.
7. Non-exclusivity of Rights . Nothing in this Agreement shall prevent or limit the Executives continuing or future participation in any benefit, bonus, incentive, or other plans, practices, policies, or programs provided by the Company and for which the Executive may qualify, nor shall anything herein limit or otherwise affect such rights as the Executive may have under any other agreements with the Company. This Agreement is not intended to affect the Executives rights under the Severance Plan for Management Employees for terminations preceding a Change in Control. Amounts that are vested benefits or that the Executive otherwise is entitled to receive under any plan, practice, policy, or program of the Company on or subsequent to the Date of Termination shall be payable in accordance with such plan, practice, policy, or program, except as may be explicitly provided otherwise in this Agreement.
8. General Release and Waiver . In exchange for the consideration provided under this Agreement, the Executive agrees to sign a General Release and Waiver of age and other discrimination claims on a form provided by the Company at the time of separation. This waiver must be signed (and any applicable revocation period must expire) no later than 60 days after the Termination Date.
6
9. Confidential Information; Non-Compete .
(a) The Executive shall hold in a fiduciary capacity for the benefit of the Company all secret or confidential information, knowledge, or data relating to the Company and its respective businesses, which shall have been obtained by the Executive during the Executives employment by the Company and which shall not be or become public knowledge (other than by acts by the Executive or representatives of the Executive in violation of this Agreement). After termination of the Executives employment with the Company, the Executive shall not, without the prior written consent of the Company, communicate or divulge any such secret or confidential information, knowledge, or data to anyone other than the Company and those designated by it. In addition, to the extent that the Executive is a party to any other agreements relating to non-competition, confidential information, inventions, or similar matters with the Company, the Executive shall continue to comply with the provisions of such other agreements. In addition to the obligations under this Section 9(a), the Executive shall execute any other documents which relate to the subject matter of this Section 9(a) and which are required generally by the Company of its executive officers, and such other documents already executed or executed after the effective date of this Agreement shall thereby become part of this Agreement. Nothing in this Agreement shall be construed as modifying any provisions of such other agreements or documents. In the case of any inconsistency between such other agreements and documents and this Agreement, the broader provision shall prevail. If the Executive breaches this Section 9(a) or a covenant not to compete or confidentiality provision in any such other agreement or document, that breach shall be considered a breach of this Agreement. In addition to any other rights the Company may have for such breach if such breach occurs after the termination of employment, the Executive shall forfeit the benefits under Section 6(d). If such breach is determined retroactively, the Executive shall pay promptly to the Company the amount the Company paid or incurred to provide any benefits to Executive after the date of such breach.
(b) The Executive acknowledges that the Company will suffer damages incapable of ascertainment if any of the provisions of subsection (a) are breached and that the Company will be irreparably damaged if the provisions of subsection (a) are not enforced. Therefore, should any dispute arise with respect to the breach or threatened breach of subsection (a), the Executive agrees and consents that in addition to any other remedies available to the Company, an injunction or restraining order or other equitable relief may be issued or ordered by a court of competent jurisdiction restraining any breach or threatened breach of subsection (a). The Executive agrees not to urge in any such action that an adequate remedy exists at law.
10. Public Announcements . The Executive shall not issue any press release or otherwise make any public statement with respect to the Company, this Agreement, or the transactions contemplated herein.
11. Arbitration . Any dispute, controversy, or claim arising out of or relating to this Agreement, or any breach hereof, shall be determined and settled by arbitration to be held in Boston, Massachusetts, pursuant to the commercial rules of the American Arbitration Association or any successor organization and before a panel of three arbitrators. Any award rendered shall be final, conclusive, and binding on the parties.
7
12. Successors .
(a) This Agreement is personal to the Executive and, without the prior written consent of the Company, shall not be assignable by the Executive otherwise than by will or the laws of descent and distribution. This Agreement shall inure to the benefit of and be enforceable by the Executives legal representatives.
(b) This Agreement shall inure to the benefit of and be binding upon the Company and its successors and assigns.
(c) The Company will require any successor (whether direct or indirect, by purchase, merger, consolidation, or otherwise) to all or substantially all of the business or assets of the Company to assume expressly and agree to perform this Agreement in the same manner and to the same extent that the Company would be required to perform it if no such succession had taken place. As used in this Agreement, Company shall mean the Company and any successor to all or substantially all of its business or assets which assumes and agrees to perform this Agreement by operation of law or otherwise.
13. Miscellaneous .
(a) All notices and other communications given pursuant to this Agreement shall be in writing and shall be deemed received (i) on the calendar day following the date such notice is sent if (A) delivered by hand, or (B) delivered via overnight delivery by Express Mail, Federal Express, or other national overnight delivery service, or (ii) on the fifth (5 th ) calendar day following the date such notice is sent, if sent by registered or certified mail, return receipt requested, in every case, to the appropriate party at the address given below for such party (or to such other address designated by the party in writing and delivered to the other party pursuant to this Section 13(a)).
If to the Executive:
Mr. John Millerick
212 Country Club Way
Ipswich, MA 01938
If to the Company:
Analogic Corporation
8 Centennial Drive
Peabody, Massachusetts 01960
Attn: President
(b) The Company shall deduct or withhold from salary payments, and from all other payments made to the Executive pursuant to this Agreement, all amounts that may be required to be deducted or withheld under any applicable law now in effect or that may become effective during the term of this Agreement (including, without limitation, social security contributions and income tax withholdings).
8
(c) This Agreement shall be governed by and construed in accordance with the laws of the Commonwealth of Massachusetts, without reference to principles of conflict of laws. The Executive consents to jurisdiction in Massachusetts and venue in Suffolk County for purposes of all claims arising under this Agreement. The captions of this Agreement are not part of the provisions of this Agreement and shall have no force or effect. Except as specifically referenced in this Agreement (including, without limitation, agreements referenced in Section 7 which shall be treated as being specifically referenced in this Agreement), no agreements or representations, oral or otherwise, express or implied, with respect to the subject matter of this Agreement, have been made by either party that are not expressly set forth in this Agreement. No provision of this Agreement may be waived, modified, or amended, orally or by any course of conduct, unless such waiver, modification, or amendment is set forth in a written agreement duly executed by the parties or their respective successors and legal representatives. The invalidity or unenforceability of any provision of this Agreement shall not affect the validity or enforceability of any other provision of this Agreement. The Executives or the Companys failure to insist on strict compliance with any provision in any particular instance shall not be deemed to be a waiver of that provision or any other provision.
IN WITNESS WHEREOF, the Executive has set his or her hand and, pursuant to the authorization from its Board of Directors, the Company has caused these presents to be executed in its name and on its behalf, all as of the day and year first above.
ANALOGIC CORPORATION | ||
By: | /s/ James W. Green | |
James Green | ||
President and CEO | ||
EXECUTIVE: | ||
/s/ John J. Millerick | ||
John Millerick |
9
Appendix A: Payments Subject to Section 409A
Subject to the provisions in this Appendix A, any severance payments or benefits under this Agreement shall begin only upon the date of the Executives separation from service (determined as set forth below) which occurs on or after the date of termination of employment. The following rules shall apply with respect to distribution of the payments and benefits, if any, to be provided to the Executive under this Agreement:
1. It is intended that each installment of the severance payments and benefits provided under this Agreement shall be treated as a separate payment for purposes of Section 409A of the Internal Revenue Code and the guidance issued thereunder (Section 409A). Neither the Company nor the Executive shall have the right to accelerate or defer the delivery of any such payments or benefits except to the extent specifically permitted or required by Section 409A.
2. If, as of the date of the Executives separation from service from the Company, the Executive is not a specified employee (within the meaning of Section 409A), then each installment of the severance payments and benefits shall be made on the dates and terms set forth in this Agreement.
3. If, as of the date of the Executives separation from service from the Company, the Executive is a specified employee (within the meaning of Section 409A), then:
(a) Each installment of the severance payments and benefits due under this Agreement that, in accordance with the dates and terms set forth herein, will in all circumstances, regardless of when the separation from service occurs, be paid within the short-term deferral period (as defined under Section 409A) shall be treated as a short-term deferral within the meaning of Treasury Regulation Section 1.409A-1(b)(4) to the maximum extent permissible under Section 409A; and
(b) Each installment of the severance payments and benefits due under this Agreement that is not described in paragraph (a) above and that would, absent this subsection, be paid within the six-month period following the Executives separation from service from the Company shall not be paid until the date that is six months and one day after such separation from service (or, if earlier, the Executives death), with any such installments that are required to be delayed being accumulated during the six-month period and paid in a lump sum on the date that is six months and one day following the Executives separation from service and any subsequent installments, if any, being paid in accordance with the dates and terms set forth herein; provided, however, that the preceding provisions of this sentence shall not apply to any installment of severance payments and benefits if and to the maximum extent that such installment is deemed to be paid under a separation pay plan that does not provide for a deferral of compensation by reason of the application of Treasury Regulation 1.409A-1(b)(9)(iii) (relating to separation pay upon an involuntary separation from service). Any installments that qualify for the exception under Treasury Regulation Section 1.409A-1(b)(9)(iii) must be paid no later than the last day of the Executives second taxable year following the Executives taxable year in which the separation from service occurs.
4. The determination of whether and when the Executives separation from service from the Company has occurred shall be made in a manner consistent with, and based on the presumptions set forth in, Treasury Regulation Section 1.409A-1(h). Solely for purposes of this paragraph 8.4, the Company shall include all persons with whom Skyworks would be considered a single employer as determined under Treasury Regulation Section 1.409A-1(h)(3).
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5. All reimbursements and in-kind benefits provided under this Agreement shall be made or provided in accordance with the requirements of Section 409A to the extent that such reimbursements or in-kind benefits are subject to Section 409A, including, where applicable, the requirement that (i) any reimbursement is for expenses incurred during the Executives lifetime (or during a shorter period of time specified in this Agreement), (ii) the amount of expenses eligible for reimbursement during a calendar year may not affect the expenses eligible for reimbursement in any other calendar year, (iii) the reimbursement of an eligible expense will be made on or before the last day of the calendar year following the year in which the expense is incurred and (iv) the right to reimbursement is not subject to set off or liquidation or exchange for any other benefit.
6. The Company may withhold (or cause to be withheld) from any payments made under this Agreement, all federal, state, city or other taxes as shall be required to be withheld pursuant to any law or governmental regulation or ruling.
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Exhibit 10.2
December 24, 2008
Mr. James Green
7 Winthrop Road
Lexington MA 02421
Dear Jim:
Reference is made to your letter agreement with Analogic Corporation (the Company) dated April 20, 2007 (the Agreement). The purpose of this document is to amend the Agreement in view of certain regulations recently promulgated by the Internal Revenue Service (the IRS) in connection with Internal Revenue Code (IRC) Section 409A and to more clearly state our understanding with regard to certain payments that may be subject to excise taxes under the IRC. We do not intend to otherwise alter the terms of the Agreement. In all respects, the Agreement shall remain in full force and effect, provided, however, that:
1 . | It is agreed that Sections 13 through 15 are hereby amended and restated in their entirety to read as follows: |
13. Change-In-Control. You will be eligible for the following Change-in-Control (CIC) (as defined below) benefits in the event your employment is terminated without Cause within twenty-four (24) months following a CIC, the distribution of which is subject to the provisions of Section 19 hereof:
a. | Two (2) times your base salary plus the greater of your target or three (3) year average bonus, payable in a lump sum thirty (30) days following your termination; |
b. | Pro-rata portion of the greater of your target or actual bonus, to the extent determinable, for your year of termination, payable in a lump sum thirty (30) days following your termination; |
c. | Benefit continuation for twenty-four (24) months, payable in accordance with the Companys regular payroll practice for benefits; |
d. | Equity acceleration, and |
e. | If any Internal Revenue Code Section 4999 parachute payment excise taxes are imposed, you will be eligible for a modified gross up only if your CIC payments exceed the safe harbor amount by the greater of $50,000 or 10%. However, should your CIC payments exceed the safe harbor amount by less than $50,000 or 10% of your safe harbor amount; you will receive the greater of: (1) your total CIC payments less the estimated cost of your excise tax or (2) your safe harbor amount. If and to the extent that any payments or benefits are required to be cut back pursuant to this Section 13(e), the payments or benefits shall be reduced or eliminated as determined by the Company, in the following order: (i) any cash payments, (ii) any taxable benefits, (iii) any nontaxable benefits, and (iv) any vesting of equity awards, in each case in reverse order beginning with payments or benefits that are to be paid the farthest in time from the date that triggers any excise tax, all and in each case as is necessary to maximize your after-tax position. |
For purposes of this Agreement, CIC shall have the meaning set forth in the Companys May 2007 form CIC Agreement as amended in December, 2008.
14. General Severance. You will also be eligible for the following severance benefits in the event your employment is terminated by the Company without Cause and unrelated to a CIC, the distribution of which is subject to the provisions of Section 19 hereof:
a. | Twelve (12) months salary continuation, with payment commencing thirty (30) days following your termination, plus a lump sum payment equal to your target bonus, payable thirty (30) days following your termination; and |
b. | Equity treatment as described in Sections 6 and 7 above. |
15. Restrictive Covenants. Severance payments will be conditioned on your signing of a general waiver and release of claims and the expiration of any applicable revocation period occurring within sixty (60) days following your termination date, and your agreement not to compete against the interests of the Company, or solicit employees or customers for the severance period, and not disparage the Company nor disclose trade secrets or confidential information.
2 . | It is further agreed that Section 18 is hereby amended and restated in its entirety to read as follows: |
18. Final Agreement. This Agreement, as amended, sets forth the terms of your service with the Company and supersedes any prior representations or agreements, whether written or oral. This Agreement shall be deemed to have been entered into and shall be construed and enforced in accordance with the laws of the Commonwealth of Massachusetts.
3 . | It is further agreed that Section 19 is hereby added to read as follows: |
19. Payments Subject to Section 409A. Subject to the provisions in this Section 19, any severance payments or benefits under this Agreement shall begin only upon the date of your separation from service (determined as set forth below) which occurs on or after the date of termination of employment. The following rules shall apply with respect to distribution of the payments and benefits, if any, to be provided to you under this Agreement:
a. | It is intended that each installment of the severance payments and benefits provided under this Agreement shall be treated as a separate payment for purposes of Section 409A of the Internal Revenue Code and the guidance issued thereunder (Section 409A). Neither you nor the Company shall have the right to accelerate or defer the delivery of any such payments or benefits except to the extent specifically permitted or required by Section 409A. |
b. | If, as of the date of your separation from service from the Company, you are not a specified employee (within the meaning of Section 409A), then each installment of the severance payments and benefits shall be made on the dates and terms set forth in this Agreement |
c. | If, as of the date of your separation from service from the Company, you are a specified employee (within the meaning of Section 409A), then: |
i. | Each installment of the severance payments and benefits due under this Agreement that, in accordance with the dates and terms set forth herein, will in all circumstances, regardless of when the separation from service occurs, be paid within the short-term deferral period (as defined under Section 409A) shall be treated as a short-term deferral within the meaning of Treasury Regulation Section 1.409A-1(b)(4) to the maximum extent permissible under Section 409A; and |
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ii. | Each installment of the severance payments and benefits due under this Agreement that is not described in paragraph (i) above and that would, absent this subsection, be paid within the six-month period following your separation from service from the Company shall not be paid until the date that is six months and one day after such separation from service (or, if earlier, your death), with any such installments that are required to be delayed being accumulated during the six-month period and paid in a lump sum on the date that is six months and one day following your separation from service and any subsequent installments, if any, being paid in accordance with the dates and terms set forth herein; provided, however, that the preceding provisions of this sentence shall not apply to any installment of severance payments and benefits if and to the maximum extent that such installment is deemed to be paid under a separation pay plan that does not provide for a deferral of compensation by reason of the application of Treasury Regulation 1.409A-1(b)(9)(iii) (relating to separation pay upon an involuntary separation from service). Any installments that qualify for the exception under Treasury Regulation Section 1.409A-1(b)(9)(iii) must be paid no later than the last day of your second taxable year following the taxable year in which the separation from service occurs. |
d. | The determination of whether and when your separation from service from the Company has occurred shall be made in a manner consistent with, and based on the presumptions set forth in, Treasury Regulation Section 1.409A-1(h). Solely for purposes of this paragraph (d), Company shall include all persons with whom the Company would be considered a single employer as determined under Treasury Regulation Section 1.409A-(h)(3). |
e. | All reimbursements and in-kind benefits provided under this Agreement shall be made or provided in accordance with the requirements of Section 409A to the extent that such reimbursements or in-kind benefits are subject to Section 409A, including, where applicable, the requirement that (i) any reimbursement is for expenses incurred during your lifetime (or during a shorter period of time specified in this Agreement), (ii) the amount of expenses eligible for reimbursement during a calendar year may not affect the expenses eligible for reimbursement in any other calendar year, (iii) the reimbursement of an eligible expense will be made on or before the last day of the calendar year following the year in which the expense is incurred and (iv) the right to reimbursement is not subject to set off or liquidation or exchange for any other benefit. |
f. | The Company may withhold (or cause to be withheld) from any payments made under this Agreement, all federal, state, city or other taxes as shall be required to be withheld pursuant to any law or governmental regulation or ruling. |
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By execution of this letter, you hereby agree to the foregoing amendment of the Agreement and reaffirm your obligations under the Agreement.
Very truly yours, | ||
Analogic Corporation | ||
By: | /s/ Fred B. Parks | |
Fred B. Parks | ||
Chairman, Compensation Committee |
Acknowledged and Agreed: |
/s/ James W. Green |
James Green |
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Exhibit 10.3
December 24, 2008
Mr. John J. Fry
132 Ember Lane
Carlisle, MA 01741
Dear John:
Reference is made to your letter agreement with Analogic Corporation (the Company) dated as of October 29, 2007 (the Agreement). The purpose of this document is to amend the Agreement in view of certain regulations recently promulgated by the Internal Revenue Service (the IRS) in connection with Internal Revenue Code (IRC) Section 409A and to more clearly state our understanding with regard to certain payments that may be subject to excise taxes under the IRC. We do not intend to otherwise alter the terms of the Agreement. In all respects, the Agreement shall remain in full force and effect, provided, however, that:
1. | It is agreed that paragraph (a)(1) of Section 6 is hereby amended and restated to remove the parenthetical (as defined in Analogics Change of Control agreement dated May 2007) and replace it with the following parenthetical: (as defined in Analogics Change of Control Agreement dated May 2007 as amended in December 2008 (the Amended CIC Agreement)). |
2. | It is agreed that Sections 11 through 13 are hereby amended and restated in their entirety to read as follows: |
11. Change-In-Control. You will be eligible for the following Change-in-Control (CIC) benefits in the event your employment is terminated by the Company without Cause or by you for Good Reason within twenty-four (24) months following a CIC (the CIC Period), the distribution of which is subject to the provisions of Section 18 hereof:
a. | One times the Base Salary plus the greater of: (1) the Target Bonus for the year in which termination occurs or (2) the average bonus paid to you over the prior three (3) full fiscal years, payable in a lump sum thirty (30) days following your termination; |
b. | Pro-rata bonus based on the number of whole months worked in the year of termination (fiscal), using the greater of the Target Bonus or the projected actual bonus, to the extent determinable, payable in a lump sum thirty (30) days following your termination; |
c. | Health and welfare benefit continuation for twelve (12) months, payable in accordance with the Companys regular payroll practice for benefits; |
d. | Acceleration of vesting of unvested equity awards including, without limitation, the Performance-Contingent Award and the Time-Based Award; and |
e. |
If any excise taxes are imposed on you because your CIC payments exceed your safe harbor under the Federal golden parachute rules (as defined in IRS Sections 280G and 4999), these excise taxes will be reimbursed to you along with the Federal and State income tax effect of this reimbursement. However, should your CIC payments exceed your safe harbor amount by less than $50,000 or 10% of your safe harbor amount; you will receive the greater of: (1) your total CIC payments less the estimated cost of your excise tax or (2) your safe harbor amount. If and to the extent that any payments or benefits are required to be cut back |
pursuant to this Section 11(e), the payments or benefits shall be reduced or eliminated as determined by the Company, in the following order: (i) any cash payments, (ii) any taxable benefits, (iii) any nontaxable benefits, and (iv) any vesting of equity awards, in each case in reverse order beginning with payments or benefits that are to be paid the farthest in time from the date that triggers any excise tax, all and in each case as is necessary to maximize your after-tax position. |
The terms described above will be incorporated into a change of control agreement of a form substantially similar to the Amended CIC agreement.
12. General Severance. You will also be eligible for the following severance benefits in the event your employment is terminated by the Company without Cause or by you for Good Reason and other than during the CIC Period, the distribution of which is subject to the provisions of Section 18 hereof:
a. | Base Salary continuation for the greater of: (1) the remainder of the twenty-four (24) month period following your start date; or (2) twelve (12) months following your date of termination; with payments in either case commencing thirty (30) days after your termination and paid in accordance with regular payroll practice |
b. | A lump sum payment payable thirty (30) days following your termination equal to (i) the greater of the Target Bonus or (ii) your actual bonus, to the extent determinable, for the year of termination, |
c. | Outplacement assistance; |
d. | Equity treatment as described in 6(a)(i) and 7(b) above; and |
e. | The cost of relocation, but only if back to Cleveland, Ohio. This benefit applies for a maximum of two years from your actual start date. |
13. Restrictive Covenants. Severance payments will be conditioned on your signing of a general waiver and release of claims and the expiration of any applicable revocation period occurring within sixty (60) days following your termination date, and your agreement not to solicit employees or customers for the severance period, and not disparage the Company nor disclose trade secrets or confidential information.
3. | It is further agreed that Section 16 is hereby amended and restated to remove the sentence following subsection (e) beginning with For purposes of this Agreement, Good Reason shall mean and replace it with the following: |
For the purposes of this Agreement, Good Reason shall have the meaning ascribed to it in the Amended CIC Agreement, it being understood however that a Change of Control shall not be required. For the avoidance of doubt, you may terminate your employment for Good Reason at any time regardless of whether a Change of Control is contemplated or has occurred. It is further understood that, outside the context of a Change of Control, the Company retains the right to modify its employee benefits plans (i.e., health, welfare, retirement, etc.) and avoid triggering a Good Reason termination, as described in sections 5(c)(ii) and 4(b)(iii) of the Amended CIC
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Agreement. Your decision to terminate for Good Reason shall be communicated by means of a written notice delivered by you to the Company within 90 days of the initial existence of the occurrence or condition on which you base your claim for Good Reason. If the condition is capable of being corrected, the Company shall have 30 days during which it may remedy the condition. If the condition is fully remedied within such time period, the Company shall not owe the amounts otherwise required to be paid under this Agreement. If the condition is not corrected or otherwise resolved by agreement of the parties, the Executive must leave employment within one year after the Company fails to cure the condition giving rise to the Executives claim for Good Reason.
4. | It is further agreed that Section 18 is hereby amended and restated in its entirety to read as follows: |
18. Payments Subject to Section 409A. Subject to the provisions in this Section 18, any severance payments or benefits under this Agreement shall begin only upon the date of your separation from service (determined as set forth below) which occurs on or after the date of termination of employment. The following rules shall apply with respect to distribution of the payments and benefits, if any, to be provided to you under this Agreement:
a. | It is intended that each installment of the severance payments and benefits provided under this Agreement shall be treated as a separate payment for purposes of Section 409A of the Internal Revenue Code and the guidance issued thereunder (Section 409A). Neither you nor the Company shall have the right to accelerate or defer the delivery of any such payments or benefits except to the extent specifically permitted or required by Section 409A. |
b. | If, as of the date of your separation from service from the Company, you are not a specified employee (within the meaning of Section 409A), then each installment of the severance payments and benefits shall be made on the dates and terms set forth in this Agreement. |
c. | If, as of the date of your separation from service from the Company, you are a specified employee (within the meaning of Section 409A), then: |
i. | Each installment of the severance payments and benefits due under this Agreement that, in accordance with the dates and terms set forth herein, will in all circumstances, regardless of when the separation from service occurs, be paid within the short-term deferral period (as defined under Section 409A) shall be treated as a short-term deferral within the meaning of Treasury Regulation Section 1.409A-1(b)(4) to the maximum extent permissible under Section 409A; and |
ii. |
Each installment of the severance payments and benefits due under this Agreement that is not described in paragraph (i) above and that would, absent this subsection, be paid within the six-month period following your separation from service from the Company shall not be paid until the date that is six months and one day after such separation from service (or, if earlier, your death), with any such installments that are required to be delayed being accumulated during the six-month period and paid in a lump sum on the date that is six months and one day following your separation from service and any subsequent installments, if any, being paid in accordance with the dates and terms set forth herein; provided, however, that the preceding provisions of this sentence shall not apply to any installment of severance payments and benefits if and to the maximum extent that such installment is deemed to be paid under a separation pay plan that does not provide for a deferral of compensation by reason of the application of Treasury Regulation 1.409A-1(b)(9)(iii) (relating to |
3
separation pay upon an involuntary separation from service). Any installments that qualify for the exception under Treasury Regulation Section 1.409A-1(b)(9)(iii) must be paid no later than the last day of your second taxable year following the taxable year in which the separation from service occurs. |
d. | The determination of whether and when your separation from service from the Company has occurred shall be made in a manner consistent with, and based on the presumptions set forth in, Treasury Regulation Section 1.409A-1(h). Solely for purposes of this paragraph (d), Company shall include all persons with whom the Company would be considered a single employer as determined under Treasury Regulation Section 1.409A-(h)(3). |
e. | All reimbursements and in-kind benefits provided under this Agreement shall be made or provided in accordance with the requirements of Section 409A to the extent that such reimbursements or in-kind benefits are subject to Section 409A, including, where applicable, the requirement that (i) any reimbursement is for expenses incurred during your lifetime (or during a shorter period of time specified in this Agreement), (ii) the amount of expenses eligible for reimbursement during a calendar year may not affect the expenses eligible for reimbursement in any other calendar year, (iii) the reimbursement of an eligible expense will be made on or before the last day of the calendar year following the year in which the expense is incurred and (iv) the right to reimbursement is not subject to set off or liquidation or exchange for any other benefit. |
f. | The Company may withhold (or cause to be withheld) from any payments made under this Agreement, all federal, state, city or other taxes as shall be required to be withheld pursuant to any law or governmental regulation or ruling. |
[Remainder of Page Intentionally Left Blank]
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By execution of this letter, you hereby agree to the foregoing amendment of the Agreement and reaffirm your obligations under the Agreement.
Very truly yours,
Analogic Corporation
By: | /s/ James W. Green | |
Jim Green | ||
President & CEO |
Acknowledged and Agreed: |
/s/ John J. Fry |
John J. Fry |
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Exhibit 10.4
ANALOGIC CORPORATION
SEVERANCE PLAN FOR MANAGEMENT EMPLOYEES
As Amended and Restated, Effective As Of
December 31, 2008
ANALOGIC CORPORATION
SEVERANCE PLAN FOR MANAGEMENT EMPLOYEES
TABLE OF CONTENTS
Page | ||||
ARTICLE I - PURPOSE |
1 | |||
ARTICLE II - DEFINITIONS |
1 | |||
2.1 |
C OMPENSATION | 1 | ||
2.2 |
C AUSE OR F OR C AUSE | 1 | ||
2.3 |
C ODE | 2 | ||
2.4 |
E LIGIBLE M ANAGEMENT E MPLOYEE | 2 | ||
2.5 |
E MPLOYEE | 2 | ||
2.6 |
E MPLOYER | 2 | ||
2.7 |
ERISA | 2 | ||
2.8 |
J OB E LIMINATION | 2 | ||
2.9 |
N OTICE OF J OB E LIMINATION | 3 | ||
2.10 |
N OTICE P ERIOD | 3 | ||
2.11 |
N OTICE P ERIOD D ATE | 3 | ||
2.12 |
P ARTICIPANT | 3 | ||
2.13 |
P ARTICIPATING E MPLOYER | 3 | ||
2.14 |
P AYMENT COMMENCEMENT DATE | 3 | ||
2.15 |
P LAN | 3 | ||
2.16 |
P LAN A DMINISTRATOR | 4 | ||
2.17 |
P LAN Y EAR | 4 | ||
2.18 |
R ETURN D ATE | 4 | ||
2.19 |
R EVOCATION P ERIOD | 4 | ||
2.20 |
S EVERANCE A GREEMENT | 5 | ||
2.21 |
S EVERANCE B ENEFITS | 5 | ||
2.22 |
S EVERANCE P ERIOD | 5 | ||
2.23 |
T ERMINATION D ATE | 5 | ||
2.24 |
V OLUNTARY S EPARATION P ROGRAM | 5 | ||
2.25 |
WARN OR WARN A CT | 5 | ||
ARTICLE III - PARTICIPATION |
5 | |||
ARTICLE IV- EFFECT ON OTHER BENEFITS |
6 | |||
ARTICLE V NOTICE PERIOD, SEVERANCE PERIOD, AND ACCELERATIONS OF TERMINATION DATE |
6 | |||
5.1 |
N OTICE P ERIOD | 6 | ||
5.2 |
A CCELERATION OF T ERMINATION D ATE | 6 | ||
5.3 |
S EVERANCE P ERIOD | 6 | ||
ARTICLE VI - BENEFITS |
7 | |||
6.1 |
R ETURNING S EVERANCE A GREEMENT | 7 | ||
6.2 |
S EVERANCE B ENEFIT | 7 | ||
6.3 |
A DDITIONAL P ROVISIONS R ELATED TO S EVERANCE B ENEFITS | 8 | ||
6.4 |
P AYMENTS SUBJECT TO S ECTION 409A | 8 |
ARTICLE VII WARN |
9 | |||
ARTICLE VIII - FUNDING |
9 | |||
ARTICLE IX PLAN ADMINISTRATION AND FIDUCIARY |
10 | |||
9.1 |
N AMED F IDUCIARY | 10 | ||
9.2 |
P LAN A DMINISTRATION | 10 | ||
9.3 |
D ELEGATION OF D UTIES | 11 | ||
9.4 |
I NDEMNIFICATION | 11 | ||
9.5 |
F IDUCIARY D UTIES AND R ESPONSIBILITIES | 11 | ||
ARTICLE X CLAIMS PROCEDURE |
11 | |||
10.1 |
C LAIMS P ROCEDURE | 11 | ||
10.2 |
R EVIEW OF D ENIED C LAIM | 12 | ||
10.3 |
D ECISION ON R EVIEW | 12 | ||
10.4 |
N OTIFICATION OF D ECISION ON R EVIEW | 12 | ||
ARTICLE XI AMENDMENT AND TERMIANTION |
13 | |||
11.1 |
A MENDMENT | 13 | ||
11.2 |
T ERMINATION | 13 | ||
ARTICLE XII MISCELLANEOUS |
13 | |||
12.1 |
E XCLUSIVE B ENEFIT | 13 | ||
12.2 |
N ON -A LIENATION OF B ENEFITS | 13 | ||
12.3 |
L IMITATION OF R IGHTS | 14 | ||
12.4 |
G OVERNING L AWS AND J URISDICTION AND V ENUE | 14 | ||
12.5 |
S EVERABILITY | 14 | ||
12.6 |
C ONSTRUCTION | 14 | ||
12.7 |
T ITLES | 14 | ||
12.8 |
E XPENSES | 14 | ||
ARTICLE XIII EFFECTIVE DATE |
14 |
ii
ANALOGIC CORPORATION
SEVERANCE PLAN FOR MANAGEMENT EMPLOYEES
Analogic Corporation (the Employer) hereby adopts the Analogic Corporation Severance Plan for Management Employees (the Plan), effective as of January 1, 2006 as amended and restated effective December 31, 2008. All prior existing severance pay plans, programs or practices applicable to Eligible Management Employees, whether formal or informal, are hereby expressly superseded by this Plan as applicable to Eligible Management Employees.
ARTICLE I
Purpose
The purpose of the Plan is to grant severance benefits to Eligible Management Employees of the Employer whose employment with the Employer is terminated under the circumstances described herein. This Plan is intended to constitute an employee welfare benefit plan within the meaning of Section 3(1) of ERISA, and is intended to be exempt from the requirements under Section 409A of the Code.
This Plan is a Welfare Program as defined in the Analogic Corporation Welfare Benefit Plan (the Welfare Benefit Plan).
ARTICLE II
Definitions
2.1 Compensation means the Participants rate of regular annual base pay, determined as of the date of the Eligible Management Employees Notice of Job Elimination. Compensation does not include bonuses, overtime, commissions, shift differential pay, incentive pay, and the value of any employee benefits.
2.2 Cause or For Cause means:
(a) the Eligible Management Employee is convicted of a felony or misdemeanor involving fraud, dishonesty or moral turpitude, or
(b) the Eligible Management Employee, in carrying out his duties, acts or fails to act in such a manner which is determined in the sole discretion of the Employers Board of Directors to be:
(i) willful gross neglect, and/or
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(ii) willful gross misconduct
resulting, in either case, in harm to the Employer unless such act, or failure to act, was believed by the Eligible Management Employee, in reasonable good faith, to be in the best interest of the Employer.
2.3 Code means the Internal Revenue Code of 1986, as amended from time to time.
2.4 Eligible Management Employee means any one of the following:
(a) the President and Chief Executive Officer of the Employer,
(b) a designated corporate officer of the Employer, or
(c) other designated officers of the Employer to include:
(i) divisional, operations, technical and administrative officers of the Employer, and
(ii) presidents/general managers of subsidiary corporations of the Employer.
All of the above Eligible Management Employees will occupy a position with an executive salary grade above E08.
2.5 Employee means each individual who is a common law employee of the Employer. The term Employee does not include temporary employees as defined in the Analogic 401(k) Plan, independent contractors (even if the Internal Revenue Service characterizes or recharacterizes such person as an employee), leased employees within the meaning of Section 414(n)(2) or Section 414(o)(2) of the Code, or non-resident aliens.
2.6 Employer means Analogic Corporation, a Massachusetts corporation, and any entity which succeeds to the business and assumes the obligations of the Employer hereunder.
2.7 ERISA means the Employee Retirement Income Security Act of 1974, as amended from time to time.
2.8 Job Elimination means an involuntary termination of employment including, but not limited to, termination of employment on account of changes in the Employers operations or organization, reorganizations, staffing changes, job elimination, or job force reductions, as determined by the Employer in its sole discretion.
Notwithstanding anything to the contrary contained herein, Job Elimination shall not result:
(a) from an Eligible Management Employees termination of employment on account of voluntary resignation, retirement or death prior to provision of a Notice of Job Elimination;
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(b) if the Employer or a Participating Employer has offered the Eligible Management Employee a comparable replacement position (as determined by the Employer, in its sole and absolute discretion, taking into account the similarity of duties, similarity of exempt status and salary range; provided that a new position will not be considered comparable if it is not within reasonable commuting distance from the Eligible Management Employees home, offers a salary significantly less than the Eligible Management Employees former position, or is of a grade more than one grade below the Eligible Management Employees former position);
(c) if the Eligible Management Employees employment is terminated For Cause;
(d) if, following the sale or outsourcing of any portion of the Employer, an Eligible Management Employee is offered by the successor organization a position at a base compensation rate not significantly lower than that for the Eligible Management Employees former position, or of a grade not more than one grade lower than the Eligible Management Employees former position;
(e) from the Eligible Management Employees failure to return to work within the time required following an approved leave of absence;
(f) from a change in employment that results from a natural disaster, unforeseeable governmental action, act of war, or other similar unanticipated business disaster; or
(g) from a voluntary transfer of employment between the Employer and any Participating Employer.
2.9 Notice of Job Elimination means a written notice provided by the Employer to an Eligible Management Employee informing that employee of a Job Elimination.
2.10 Notice Period means the sixty (60) day period beginning on the day immediately following the date the Employer provides a Notice of Job Elimination, or on such other date as the Employer shall determine in its sole discretion. In no event may the Notice Period end prior to the Return Date. In the event of any material change in the Notice of Job Elimination, a new Notice Period must begin on the day immediately following the date the Employer provides a revised Notice of Job Elimination reflecting the material change. However, if the Employer and the Eligible Management Employee agree, the prior Notice Period may continue to apply.
2.11 Notice Period Date means the first day of any Notice Period.
2.12 Participant means any Eligible Management Employee who has been provided a Notice of Job Elimination and who satisfies the requirements of Section 6.1.
2.13 Participating Employer means the term as it is defined in the Welfare Benefit Plan.
2.14 Payment Commencement Date means the first payroll date following the later of (i) the Return Date and (ii) the end of the Revocation Period, if applicable.
2.15 Plan means the Analogic Corporation Severance Plan for Management Employees as set forth herein and as it may be amended from time to time.
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2.16 Plan Administrator means the Employer or such other individual, committee or firm as the Employer shall designate from time to time.
2.17 Plan Year means the twelve (12) consecutive month period beginning January 1 and ending December 31.
2.18 Return Date means the date by which an Eligible Management Employee must sign and return a Severance Agreement including a release of claims in order to obtain Severance Benefits. Except as otherwise determined by the Employer in its sole discretion, or otherwise required by law, the Return Date is the date twenty one (21) calendar days following the date the Participant is provided with a Notice of Job Elimination; provided however that:
(a) if the twenty-first calendar day is not a business day, the Return Date will be on the next business day;
(b) if the Eligible Management Employee is at least forty years old, and the Job Elimination and/or the Voluntary Separation Program affects two or more Eligible Management Employees, the Return Date will be on the forty-fifth (45) calendar day following the date the Eligible Management Employee is provided with a Notice of Job Elimination (or the next business day if the forty-fifth calendar day is not a business day);
(c) if the Eligible Management Employee is under forty years old and is otherwise entitled, under applicable state or local fair employment practice law, to more than twenty-one (21) calendar days in which to consider whether to execute a Severance Agreement, the Return Date will be a date determined by reference to applicable state or local fair employment practices law; and
(d) if the WARN Act applies, the Return Date will be on the sixtieth (60) calendar day following the date the Participant is provided with a Notice of Job Elimination (or the next business day if the sixtieth (60) calendar day is not a business day).
A Severance Agreement returned to the Employer that is signed and physically received by the Return Date, or, if mailed, is addressed properly for delivery, postmarked by the United States Postal Service no later than the Return Date, and actually received by the Employer no later than 10 calendar days from the Return Date, will be considered timely. Severance Agreements which are not timely signed and/or returned as provided herein will not be accepted by the Employer, unless the Employer decides to accept it on a case-by-case basis, in its sole discretion.
2.19 Revocation Period means the seven calendar day (or other longer legally required calendar day) period immediately following the date the Eligible Management Employee signs the Severance Agreement during which an Eligible Management Employee who is either: (i) at least forty (40) years old; or (ii) is under forty (40) years old and is employed in a state that requires a specific Revocation Period, may revoke his or her signed Severance Agreement. To be effective, a written request to revoke must be received by the Employer (as defined by applicable law) no later than 5:00 p.m. EST on the seventh calendar day (or other longer period required by law) from the date the Eligible Management Employee signed the Severance Agreement or, if mailed, be postmarked no later than the seventh calendar day (or other longer period required by law) from the date the Eligible Management Employee signed the Severance Agreement.
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2.20 Severance Agreement means a written agreement in a form provided by the Employer, in its sole discretion, by which an Eligible Management Employee agrees to waive and release the Employer from all legal claims the Eligible Management Employee may have against the Employer in exchange for payment of Severance Benefits. To be effective, a Severance Agreement must be signed and returned to the Employer by the Return Date (and not be revoked during any applicable Revocation Period). Severance Agreements are not required to be identical among Eligible Management Employees.
2.21 Severance Benefits means benefits provided for in this Plan pursuant to Section 6.2. The Severance Benefits that a Participant may receive are net amounts from which applicable taxes, withholding and appropriate deductions have been taken, and including but not limited to deduction of any outstanding amount owed to the Employer by the Participant regardless of the reason for or source of the amount due.
2.22 Severance Period means the period of time commencing on the Payment Commencement Date during which a Participant receives Severance Benefits pursuant to Section 6.2.
2.23 Termination Date means the last day that the Eligible Management Employee is employed by the Employer which day is the last day of the Notice Period, except as otherwise provided in Section 5.2.
2.24 Voluntary Separation Program means a program of limited time duration under which an Eligible Management Employee is permitted to voluntarily separate from employment with the Employer, thereby receiving certain associated benefits, including eligibility to participate in this Plan. In the Employers sole and absolute discretion, Eligible Management Employees in certain job groups, job descriptions or job categories may not be considered eligible to request participation in the Voluntary Separation Program. Even for Eligible Management Employees eligible to participate in the Voluntary Separation Program, their actual participation is not guaranteed and the Employer may, in its sole and absolute discretion, deny an Eligible Management Employees request for participation.
2.25 WARN or WARN Act means the Worker Adjustment Retraining and Notification Act, as amended, and any applicable state plant or facility closing or mass layoff law.
ARTICLE III
Participation
An Eligible Management Employee becomes eligible to participate in the Plan as of the date the Eligible Management Employee is provided with a Notice of Job Elimination.
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ARTICLE IV
Effect On Other Benefits
Eligibility for other employee benefits ( e.g. , health and life insurance) will cease in accordance with the terms of the respective plans.
ARTICLE V
Notice Period, Severance Period, and Acceleration of Termination Date
5.1 Notice Period . During the Notice Period, Eligible Management Employees are required to report to work unless notified otherwise. Also, during the Notice Period, all of the Employers policies and procedures that applied to Eligible Management Employees before receiving the Notice of Job Elimination continue in full force and effect and Eligible Management Employees remain subject to those policies and procedures. Eligible Management Employees will continue to receive Compensation, participate in certain employee benefits during the Notice Period as though working pursuant to their regular schedule, in accordance with the Employers policies and procedures and the terms of the applicable plans.
In the event WARN applies, the provisions in Article VII shall apply.
5.2 Acceleration of Termination Date . The Termination Date will be accelerated or otherwise changed if, prior to the end of the Notice Period, a Participant resigns or otherwise obtains an external position or acts as an employee, consultant or independent contractor or as a sole proprietor of a business or acts as an officer, director, or partner in another public or privately held company, the Eligible Management Employee is required to notify the Employer immediately. In such case, the Termination Date will be accelerated to coincide with the calendar day immediately following the day the Eligible Management Employee resigned or otherwise obtained the position.
If a Participant is permitted by the Employer to accept, and does accept, another regular full time position with the Employer or a Participating Employer before the end of the Notice Period, the Termination Date will be cancelled and the Participant is no longer eligible to receive any Severance Benefits.
5.3 Severance Period . For Eligible Management Employees who sign and return (and do not revoke, if a Revocation Period applies) the Severance Agreement as required, the Severance Period shall commence on the Payment Commencement Date. Participants receive Severance Benefits in accordance with Article VI during the Severance Period.
In addition, if a Participant accepts another regular full time position with the Employer or Participating Employer, including a successor, after the Severance Period begins and before the date it is scheduled to end, the Participant is no longer eligible to receive any further Severance Benefits.
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ARTICLE VI
Benefits
6.1 Returning Severance Agreement . An Eligible Management Employee who receives a Notice of Job Elimination becomes entitled to receive Severance Benefits only if the Eligible Management Employee returns a signed Severance Agreement to the Employer no later than the Return Date and Section 6.3 is not applicable. If a Revocation Period applies, entitlement to Severance Benefits also is conditioned upon the Eligible Management Employee not revoking (or attempting to revoke) the Severance Agreement during the Revocation Period.
6.2 Severance Benefit . Subject to Section 6.4, Eligible Management Employees who experience an involuntary Job Elimination (not For Cause) will receive Severance Benefits determined by the Employer and paid through continuation of the Employers normal payroll process, in accordance with the following:
(a) for the President/CEO and other Eligible Management Employees reporting directly to the President/CEO, the Employer shall award a Severance Benefit equal to two (2) weeks of continuing Compensation for each complete year of service with the Employer, except that the Severance Benefit may not be calculated using less than 26 weeks (6 months).
(b) for all other Eligible Management Employees, the Employer shall award a Severance Benefit equal to two (2) weeks of continuing Compensation for each complete year of service with the Employer.
(c) In all management Job Eliminations above, the Severance Period for any Eligible Management Employee shall not be less than two (2) weeks or exceed one (1) year (52 weeks) regardless of the length of service with the Employer.
(d) only complete years of service shall be used to determine Severance Benefits.
(e) the Employer shall award continuation of any group health and life insurance that was in effect on the Termination Date through the Severance Period in accordance with the Employers policies and procedures and the terms of the applicable plans.
(f) in accordance with Department of Labor Regulation 2510.3-2(b), Severance Benefits may not:
(i) be contingent on the Eligible Management Employees retirement;
(ii) exceed twice the Eligible Management Employees annual pay during the year immediately preceding the Eligible Management Employees Termination Date; and
(iii) be completed more than 24 months following the Eligible Management Employees Termination Date.
In order to receive Severance Benefits, an Eligible Management Employee must timely sign and return the Severance Agreement provided by the Employer and not revoke that Severance Agreement at any time.
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6.3 Additional Provisions Related to Severance Benefits
(a) Notwithstanding anything to the contrary contained herein, the following Eligible Management Employees are not eligible to receive Severance Benefits when:
(i) the Employer becomes aware anytime after the Notice Period Date and before the end of the Severance Period, of circumstances that would have caused the Eligible Management Employees termination of employment For Cause,
(ii) an Eligible Management Employee has previously entered into an employment agreement with the Employer which contains a provision for the payment (or nonpayment) of Severance Benefits or payments upon termination of employment, and/or
(iii) an Eligible Management Employee whose Termination Date is accelerated pursuant to Section 5.2.
(b) Notwithstanding anything to the contrary contained or implied herein, the Employer may revoke a Participants Severance Agreement during any applicable Revocation Period.
6.4 Payments subject to Section 409A . Subject to the provisions in this Section 6.4, any severance payments or benefits under the offer letter shall begin only upon the date of your separation from service (determined as set forth below) which occurs on or after the date of termination of your employment. The following rules shall apply with respect to distribution of the payments and benefits, if any, to be provided to you under the offer letter:
(a) It is intended that each installment of the severance payments and benefits provided under the offer letter shall be treated as a separate payment for purposes of Section 409A of the Internal Revenue Code and the guidance issued thereunder (Section 409A). Neither the Company nor you shall have the right to accelerate or defer the delivery of any such payments or benefits except to the extent specifically permitted or required by Section 409A.
(b) If, as of the date of your separation from service from the Company, you are not a specified employee (within the meaning of Section 409A), then each installment of the severance payments and benefits shall be made on the dates and terms set forth in the offer letter.
(c) If, as of the date of your separation from service from the Company, you are a specified employee (within the meaning of Section 409A), then:
(i) Each installment of the severance payments and benefits due under the offer letter that, in accordance with the dates and terms set forth herein, will in all circumstances, regardless of when the separation from service occurs, be paid within the short-term deferral period (as defined under Section 409A) shall be treated as a short-term deferral within the meaning of Treasury Regulation Section 1.409A-1(b)(4) to the maximum extent permissible under Section 409A; and
(ii) Each installment of the severance payments and benefits due under the offer letter that is not described in paragraph (i) above and that would, absent this subsection, be paid within the six-month period following your separation from service from the Company shall not be paid until the date that is six months and one day after such separation from service (or, if earlier, your death), with any such installments that are required to be delayed being accumulated during the
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six-month period and paid in a lump sum on the date that is six months and one day following your separation from service and any subsequent installments, if any, being paid in accordance with the dates and terms set forth herein; provided , however , that the preceding provisions of this sentence shall not apply to any installment of severance payments and benefits if and to the maximum extent that such installment is deemed to be paid under a separation pay plan that does not provide for a deferral of compensation by reason of the application of Treasury Regulation 1.409A-1(b)(9)(iii) (relating to separation pay upon an involuntary separation from service). Any installments that qualify for the exception under Treasury Regulation Section 1.409A-1(b)(9)(iii) must be paid no later than the last day of your second taxable year following your taxable year in which the separation from service occurs.
(d) The determination of whether and when your separation from service from the Company has occurred shall be made in a manner consistent with, and based on the presumptions set forth in, Treasury Regulation Section 1.409A-1(h). Solely for purposes of this paragraph 4, Company shall include all persons with whom the Company would be considered a single employer as determined under Treasury Regulation Section 1.409A-1(h)(3).
(e) All reimbursements and in-kind benefits provided under the offer letter shall be made or provided in accordance with the requirements of Section 409A to the extent that such reimbursements or in-kind benefits are subject to Section 409A, including, where applicable, the requirement that (i) any reimbursement is for expenses incurred during Employees lifetime (or during a shorter period of time specified in this Plan), (ii) the amount of expenses eligible for reimbursement during a calendar year may not affect the expenses eligible for reimbursement in any other calendar year, (iii) the reimbursement of an eligible expense will be made on or before the last day of the calendar year following the year in which the expense is incurred and (iv) the right to reimbursement is not subject to set off or liquidation or exchange for any other benefit.
(f) The Company may withhold (or cause to be withheld) from any payments made under this Plan, all federal, state, city or other taxes as shall be required to be withheld pursuant to any law or governmental regulation or ruling.
ARTICLE VII
WARN
Notwithstanding anything to the contrary contained or implied herein, in the event WARN is applicable to a Participant: (i) any Notice Period and/or Severance Benefits paid or payable to the Participant will be deemed to constitute and shall be attributed to WARN notice and/or WARN benefits; (ii) all Severance Benefits under this Plan will be reduced and/or offset by any notice, payments or benefits to which the Participant may be entitled under WARN; and (iii) all Severance Benefits under this Plan will be reduced and/or offset by any amount of paid days and/or paid benefits in lieu of notice the Participant is given or is required to be given by the Employer to satisfy its obligations under WARN. A Severance Agreement is not required for receipt of WARN benefits.
ARTICLE VIII
Funding
The benefits provided hereunder will be paid solely from the general assets of the Employer. Nothing contained or implied herein will be construed to require the Employer or the Plan Administrator to maintain any fund or segregate any amount for the benefit of any Participant, and no Participant or other person shall have any claim against, right to, or security or other interest in any fund, account or asset of the Employer from which any payment under the Plan may be made.
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ARTICLE IX
Plan Administrator
9.1 Named Fiduciary . The Plan Administrator is defined in the Welfare Benefit Plan
9.2 Plan Administration . Except as otherwise provided in the Welfare Benefit Plan or this Plan:
(a) The Plan Administrator shall have sole discretion and authority to control and manage the operation and administration of the Plan.
(b) The Plan Administrator shall have complete discretion to interpret the provisions of the Plan, make findings of fact, correct errors, and supply omissions. All decisions and interpretations of the Plan Administrator made in good faith pursuant to the Plan shall be final, conclusive and binding on all persons, subject only to the claims procedure, and may not be overturned unless found by a court to be arbitrary and capricious.
(c) The Plan Administrator shall have all other powers necessary or desirable to administer the Plan, including, but not limited to, the following:
(i) To prescribe procedures to be followed by Participants in filing claims under the Plan;
(ii) To prepare and distribute information explaining the Plan to Eligible Management Employees and Participants;
(iii) To receive from the Employer, Eligible Management Employees and Participants such information as shall be necessary for the proper administration of the Plan;
(iv) To keep records of elections, claims, disbursements under the Plan, and any other information required by ERISA or the Code;
(v) To appoint individuals or committees to assist in the administration of the Plan and to engage any other agents it deems advisable;
(vi) To accept, modify or reject Participant elections under the Plan;
(vii) To promulgate any such forms to be used by Eligible Management Employees and Participants;
(viii) To prepare and file any reports or returns with respect to the Plan required by the Code, ERISA or any other laws;
(ix) To determine and enforce any limits on benefits elected hereunder; and
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(x) To correct errors and make equitable adjustments for mistakes made in the administration of the Plan; specifically, and without limitation, to recover erroneous overpayments made from the Plan to a Participant, in whatever manner the Plan Administrator determines is appropriate, including suspensions or recoupment of, or offsets against, future payments due that Participant.
9.3 Delegation of Duties . The Plan Administrator may delegate responsibilities for the operation and administration of the Plan, may designate fiduciaries other than those named in the Plan, and may allocate or reallocate fiduciary responsibilities under the Plan.
9.4 Indemnification . The Plan Administrator ( i.e ., the Plan Administrator is not the Employer) and any delegate or agent of the Employer who is an Employee shall be fully indemnified by the Employer against all liabilities, costs, and expenses (including defense costs, but excluding any amount representing a settlement unless such settlement is approved by the Employer) imposed upon it in connection with any action, suit, or proceeding to which it may be a party by reason of being the Plan Administrator or having been assigned or delegated any of the powers or duties of the Plan Administrator, and arising out of any act, or failure to act, that constitutes or is alleged to constitute a breach of such persons responsibilities in connection with the Plan, unless such act or failure to act is determined to be due to gross negligence or willful misconduct.
9.5 Fiduciary Duties and Responsibilities . Each Plan fiduciary shall discharge his duties with respect to the Plan solely in the interest of each Participant; for the exclusive purpose of providing benefits to such individuals and defraying reasonable expenses of administering the Plan; and in accordance with the terms of the Plan. Each fiduciary, in carrying out such duties, shall act with the care, skill, prudence and diligence under the circumstances then prevailing that a prudent man acting in a like capacity and familiar with such matters would use in exercising such authority. A fiduciary may serve in more than one fiduciary capacity. Unless liability is otherwise provided under Section 405 of ERISA, a named fiduciary shall not be liable for any act or omission of any other party to the extent that (a) such responsibility was properly allocated to such other party as a named fiduciary, or (b) such other party has been properly designated to carry out such responsibility pursuant to the procedures set forth above.
ARTICLE X
Claims Procedure
10.1 Claims Procedure . If a Participant or former Participant asserts a right to any benefit under the Plan that he has not received, he or his authorized representative shall file a written claim for such benefit with the Plan Administrator. If the Plan Administrator wholly or partially denies such claim, it shall provide written or electronic notice to the claimant within a reasonable period of time, but not later than 90 days after receipt by the Plan Administrator of the claim, unless the Plan Administrator determines that special circumstances require an extension of time, not to exceed 90 days, for processing the claim. If the Plan Administrator determines that an extension of time is required, it shall provide the claimant with written notice of the extension before the end of the initial 90-day period. Such notice shall describe the special circumstances requiring the extension of time and specify the date by which the Plan Administrator expects to render a benefit determination. If the Plan Administrator wholly or partially denies a claim, it shall set forth in its benefit determination, which shall be written in a manner calculated to be understood by the claimant:
(a) the specific reasons for the denial of the claim;
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(b) specific reference(s) to pertinent provisions of the Plan on which the adverse benefit determination is based;
(c) a description of any additional material or information necessary to perfect the claim and an explanation of why such material or information is necessary;
(d) an explanation of the Plans claims review procedure, including the time limits applicable under such procedure; and
(e) a statement that the claimant has the right to bring a civil action under Section 502(a) of ERISA following an adverse benefit determination on review.
10.2 Review of Denied Claim . A Participant or former Participant whose claim for benefits is denied may request a full and fair review of the adverse benefit determination within 60 days after notification of the adverse benefit determination by the Plan Administrator. The Participant or former Participant:
(a) shall be provided a review that takes into account all comments, documents, records and other information submitted by the claimant relating to the claim, without regard to whether such information was submitted or considered in the initial determination;
(b) shall be provided, upon request and free of charge, reasonable access to, and copies of, all documents, records and other information relevant to the claim; and
(c) may submit written comments, documents, records and other information relating to the claim to the Plan Administrator for review.
10.3 Decision on Review . Subject to Section 2560.503-1(i)(1)(ii) of the Department of Labor regulations, a decision on review by the Plan Administrator shall be made within a reasonable period of time, but not later than 60 days after receipt by the Plan Administrator of a request for review, unless special circumstances (such as the need to hold a hearing) require an extension of time for processing, in which case the claimant shall be provided with written notice of the extension before the end of the initial 60-day period. Such notice shall describe the special circumstances requiring the extension and specify the date by which the Plan Administrator expects to render its decision. In no event shall the decision be rendered later than 120 days after receipt of the request for review.
10.4 Notification of Decision on Review . The Plan Administrator shall provide written or electronic notice of its decision with respect to the claimants appeal which shall be written in a manner calculated to be understood by the claimant. If there is an adverse benefit determination on review, the Plan Administrators decision shall include:
(a) the specific reasons for the adverse benefit determination;
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(b) specific reference(s) to pertinent provisions of the Plan on which the adverse benefit determination is based;
(c) a statement that the claimant is entitled to receive, upon request and free of charge, reasonable access to, and copies of, all documents, records and other information relevant to the claim;
(d) a statement describing any voluntary appeal procedures offered by the Plan and the claimants right to receive information about any such procedures; and
(e) a statement that the claimant has the right to bring a civil action under Section 502(a) of ERISA following the adverse benefit determination on review.
ARTICLE XI
Amendment and Termination
11.1 Amendment . The Employer has the right to amend the Plan at any time. Any amendment shall be by the direction of an authorized officer of the Employer or his authorized designee.
11.2 Termination . The Employer has established the Plan with the bona fide intention and expectation that it will be continued indefinitely, but the Employer is not and shall not be under any obligation or liability whatsoever to maintain the Plan for any given length of time and may, in its sole and absolute discretion, discontinue or terminate the Plan, in whole or in part, at any time by direction of an authorized officer of the Employer or his authorized designee. Participants receiving benefits upon Plan termination shall continue to be eligible for such benefits.
ARTICLE XII
Miscellaneous
12.1 Exclusive Benefit . This Plan has been established for the exclusive benefit of Eligible Management Employees.
12.2 Non-Alienation of Benefits . No benefit, right or interest of any Participant under the Plan shall be subject to anticipation, alienation, sale, transfer, assignment, pledge, encumbrance or charge, seizure, attachment or legal, equitable or other process, or be liable for, or subject to, the debts, liabilities or other obligations of such person, except as otherwise required by law.
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12.3 Limitation of Rights . Neither the establishment nor the existence of the Plan, nor any modification thereof, shall operate or be construed as to:
(a) give any person any legal or equitable right against the Employer except as expressly provided herein or required by law, or
(b) create a contract of employment with any Eligible Management Employee, obligate the Employer to continue the service of any Eligible Management Employee, or affect or modify the terms of an Eligible Management Employees employment in any way.
12.4 Governing Laws and Jurisdiction and Venue . The Plan shall be construed and enforced according to the laws of the Commonwealth of Massachusetts, to the extent not preempted by Federal law which shall otherwise control. Exclusive jurisdiction and venue of all disputes arising out of or relating to this Plan shall be in any court of appropriate jurisdiction in the Commonwealth of Massachusetts.
12.5 Severability . If any provision of the Plan is held invalid or unenforceable, its invalidity or unenforceability shall not affect any other provision of the Plan, and the Plan shall be construed and enforced as if such invalid or unenforceable provision had not been included herein.
12.6 Construction . The captions contained herein are inserted only as a matter of convenience and reference, and in no way define, limit, enlarge or describe the scope or intent of the Plan, nor in any way shall affect the Plan or the construction of any provision thereof. Any terms expressed in the singular form shall be construed as though they also include the plural, where applicable, and references to the masculine, feminine, and the neuter are interchangeable.
12.7 Titles . The titles of the Articles and Sections hereof are included for convenience only and shall not be construed as part of the Plan or in any respect affecting or modifying its provisions. Such words in this Plan as herein, hereinafter, hereof and hereunder refer to this instrument as a whole and not merely to the subdivision in which said words appear.
12.8 Expenses . Any expenses incurred in the administration of the Plan shall be paid by the Employer.
ARTICLE XIII
Effective Date
The effective date of the Plan as set forth herein shall be January 1, 2006.
* * * *
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IN WITNESS WHEREOF, the Employer has caused this instrument to be duly executed in its name and on its behalf this 31 st day of December 2008.
ANALOGIC CORPORATION | ||
By: | /s/ John J. Millerick | |
John J. Millerick | ||
Senior Vice President, Chief Financial Officer and Treasurer |
ATTEST: |
/s/ Douglas Rosenfeld |
Douglas Rosenfeld |
Vice President Human Resources |
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Exhibit 31.1
CERTIFICATION OF PRINCIPAL EXECUTIVE OFFICER PURSUANT TO RULE 13a-14(a)/RULE 15d-14(a)
OF THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED
I, James W. Green, certify that:
1. | I have reviewed this Quarterly Report on Form 10-Q of Analogic Corporation: |
2. | Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report; |
3. | Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report; |
4. | The registrants other certifying officer(s) and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and have: |
a) | Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared; |
b) | Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles; |
c) | Evaluated the effectiveness of the registrants disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and |
d) | Disclosed in this report any change in the registrants internal control over financial reporting that occurred during the registrants most recent fiscal quarter (the registrants fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrants internal control over financial reporting; and |
5. | The registrants other certifying officer(s) and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrants auditors and the audit committee of the registrants board of directors (or persons performing the equivalent functions): |
a) | All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrants ability to record, process, summarize and report financial information; and |
b) | Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrants internal control over financial reporting. |
/s/ James W. Green | ||||
Date: March 6, 2009 | James W. Green | |||
President and Chief Executive Officer | ||||
(Principal Executive Officer) |
Exhibit 31.2
CERTIFICATION OF PRINCIPAL FINANCIAL OFFICER PURSUANT TO RULE 13a-14(a)/RULE 15d-14(a)
OF THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED
I, John J. Millerick, certify that:
1. | I have reviewed this Quarterly Report on Form 10-Q of Analogic Corporation: |
2. | Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report; |
3. | Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report; |
4. | The registrants other certifying officer(s) and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and have: |
a) | Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared; |
b) | Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles; |
c) | Evaluated the effectiveness of the registrants disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and |
d) | Disclosed in this report any change in the registrants internal control over financial reporting that occurred during the registrants most recent fiscal quarter (the registrants fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrants internal control over financial reporting; and |
5. | The registrants other certifying officer(s) and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrants auditors and the audit committee of the registrants board of directors (or persons performing the equivalent functions): |
a) | All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrants ability to record, process, summarize and report financial information; and |
b) | Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrants internal control over financial reporting. |
/s/ John J. Millerick | ||||
Date: March 6, 2009 | John J. Millerick | |||
Chief Financial Officer | ||||
(Principal Financial Officer) |
EXHIBIT 32.1
CERTIFICATION OF PRINCIPAL EXECUTIVE OFFICER PURSUANT TO RULE 13a-14(b)/RULE 15d-14(b)
OF THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED
In connection with the Quarterly Report on Form 10-Q of Analogic Corporation (the Company) for the quarter ended January 31, 2009 as filed with the Securities and Exchange Commission on the date hereof (the Report), the undersigned, James W. Green, President and Chief Executive Officer of the Company, hereby certifies, pursuant to 18 U.S.C. Section 1350, that, to the best of his knowledge:
(1) the Report fully complies with the requirements of Section 13(a) or 15(d) of the Securities Exchange Act of 1934, as amended; and
(2) the information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of the Company.
Date: March 6, 2009
/s/ James W. Green |
James W. Green |
President and Chief Executive Officer |
(Principal Executive Officer) |
EXHIBIT 32.2
CERTIFICATION OF PRINCIPAL FINANCIAL OFFICER PURSUANT TO RULE 13a-14(b)/RULE 15d-14(b)
OF THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED
In connection with the Quarterly Report on Form 10-Q of Analogic Corporation (the Company) for the quarter ended January 31, 2009 as filed with the Securities and Exchange Commission on the date hereof (the Report), the undersigned, John J. Millerick, Chief Financial Officer of the Company, hereby certifies, pursuant to 18 U.S.C. Section 1350, that, to the best of his knowledge:
(1) the Report fully complies with the requirements of Section 13(a) or 15(d) of the Securities Exchange Act of 1934, as amended; and
(2) the information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of the Company.
Date: March 6, 2009
/s/ John J. Millerick |
John J. Millerick |
Chief Financial Officer |
(Principal Financial Officer) |