UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 10-Q
QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d)
OF THE SECURITIES EXCHANGE ACT OF 1934
FOR THE QUARTERLY PERIOD ENDED JUNE 30, 2009
COMMISSION FILE NUMBER: 0-29302
TLC VISION CORPORATION
(Exact name of registrant as specified in its charter)
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NEW BRUNSWICK, CANADA
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980151150
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(State or jurisdiction of
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(I.R.S. Employer Identification No.)
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incorporation or organization)
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5280 SOLAR DRIVE, SUITE 300
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L4W 5M8
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MISSISSAUGA, ONTARIO
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(Zip Code)
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(Address of principal executive offices)
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Registrants telephone number, including area code: (905) 602-2020
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.
þ
Yes
o
No
Indicate by check mark whether the registrant has submitted electronically and posted on its
corporate Website, if any, every Interactive Data File required to be submitted and posted pursuant
to Rule 405 of Regulation S-T during the preceding 12 months (or for such shorter period that the
registrant was required to submit and post such files).
o
Yes
o
No
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated
filer, a non-accelerated filer, or a smaller reporting company. See the definitions of large
accelerated filer, accelerated filer and smaller reporting company in Rule 12b(2) of the
Exchange Act. (Check one):
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Large accelerated filer
o
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Accelerated filer
o
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Non-accelerated filer
þ
(Do not check if a smaller reporting company)
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Smaller reporting company
o
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Indicate by check mark whether the registrant is a shell company (as defined in Rule 12-b(2)
of the Exchange Act).
o
Yes
þ
No
As of August 13, 2009 there were 50,565,219 of the registrants Common Shares outstanding.
PART I. FINANCIAL INFORMATION
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ITEM 1.
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INTERIM CONSOLIDATED FINANCIAL STATEMENTS
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TLC VISION CORPORATION
CONSOLIDATED STATEMENTS OF OPERATIONS
(UNAUDITED) (In thousands except per share amounts)
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THREE MONTHS ENDED
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SIX MONTHS ENDED
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JUNE 30,
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JUNE 30,
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2009
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2008
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2009
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2008
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Revenues:
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Refractive centers
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$
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26,948
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$
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39,057
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$
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62,948
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$
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98,024
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Doctor services
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24,492
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25,528
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48,048
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50,591
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Eye care
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7,019
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9,512
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16,885
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15,837
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Total revenues
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58,459
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74,097
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127,881
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164,452
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Cost of revenues (excluding amortization expense shown below):
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Refractive centers
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21,595
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29,409
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47,630
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66,766
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Doctor services
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17,757
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18,680
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36,091
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36,821
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Eye care
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3,150
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4,691
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7,922
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7,513
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Total cost of revenues (excluding amortization expense shown
below)
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42,502
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52,780
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91,643
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111,100
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Gross profit
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15,957
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21,317
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36,238
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53,352
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General and administrative
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6,392
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6,986
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12,328
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15,353
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Marketing and sales
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5,509
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10,209
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12,337
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21,860
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Amortization of intangibles
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582
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803
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1,165
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1,633
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Other expense (income), net
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5,628
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(359
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)
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8,146
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(556
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)
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18,111
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17,639
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33,976
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38,290
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Operating (loss) income
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(2,154
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)
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3,678
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2,262
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15,062
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Interest income
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34
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216
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168
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426
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Interest expense
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(2,462
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(2,414
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(5,563
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(4,890
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Earnings (loss) from equity investments
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442
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(319
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792
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(102
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(Loss) income before income taxes
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(4,140
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)
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1,161
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(2,341
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10,496
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Income tax expense
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(274
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(285
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(484
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(732
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Net (loss) income
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(4,414
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)
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876
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(2,825
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)
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9,764
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Less: Net income attributable to noncontrolling interest
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2,445
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3,076
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5,358
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5,892
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Net (loss) income attributable to TLC Vision Corporation
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$
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(6,859
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$
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(2,200
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)
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$
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(8,183
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$
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3,872
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Net (loss) income per share attributable to TLC Vision
Corporation:
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Basic
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$
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(0.14
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$
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(0.04
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$
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(0.16
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$
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0.08
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Diluted
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$
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(0.14
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$
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(0.04
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$
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(0.16
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$
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0.08
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Weighted average number of common shares outstanding:
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Basic
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50,565
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50,292
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50,542
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50,265
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Diluted
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50,565
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50,292
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50,542
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50,293
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See the accompanying notes to unaudited interim consolidated financial statements.
3
TLC VISION CORPORATION
CONSOLIDATED BALANCE SHEETS
(In thousands)
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(UNAUDITED)
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JUNE 30,
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DECEMBER 31,
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2009
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2008
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ASSETS
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Current assets:
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Cash and cash equivalents
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$
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14,055
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$
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4,492
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Accounts receivable, net
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17,697
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16,870
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Prepaid expenses, inventory and other
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11,393
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14,214
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Total current assets
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43,145
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35,576
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Restricted cash
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943
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Investments and other assets, net
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11,479
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11,694
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Goodwill
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28,570
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28,570
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Other intangible assets, net
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9,318
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10,628
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Fixed assets, net
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46,204
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50,514
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Total assets
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$
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139,659
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$
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136,982
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LIABILITIES
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Current liabilities:
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Accounts payable
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$
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15,906
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$
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17,897
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Accrued liabilities
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23,500
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28,076
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Current maturities of long-term debt (including term
debt of $76.7 million at June 30, 2009 and $82.7
million of debt in default at December 31, 2008)
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106,837
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89,081
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Total current liabilities
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146,243
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135,054
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Long term-debt, less current maturities
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15,749
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16,500
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Other long-term liabilities
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4,626
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5,444
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Total liabilities
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166,618
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156,998
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STOCKHOLDERS DEFICIT
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TLC Vision Corporation stockholders deficit:
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Common stock, no par value; unlimited number
authorized
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339,477
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339,112
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Option and warrant equity
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745
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745
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Accumulated other comprehensive loss
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(1,167
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)
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(1,545
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)
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Accumulated deficit
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(381,841
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)
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(373,658
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)
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Total TLC Vision Corporation stockholders deficit
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(42,786
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)
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(35,346
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Noncontrolling interest
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15,827
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15,330
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Total stockholders deficit
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(26,959
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)
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(20,016
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)
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Total liabilities and stockholders deficit
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$
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139,659
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$
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136,982
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See the accompanying notes to unaudited interim consolidated financial statements.
4
TLC VISION CORPORATION
CONSOLIDATED STATEMENTS OF CASH FLOWS
(UNAUDITED) (In thousands)
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SIX MONTHS
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ENDED JUNE 30,
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2009
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2008
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OPERATING ACTIVITIES
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Net (loss) income
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$
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(2,825
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)
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$
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9,764
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Adjustments to reconcile net (loss) income to net cash from
operating activities:
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Depreciation and amortization
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8,009
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9,877
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(Earnings) loss from equity investments
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(792
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)
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102
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Gain on sales and disposals of fixed assets
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(277
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)
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(289
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)
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Gain on sales of businesses
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(145
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)
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Non-cash compensation expense
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343
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711
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Other
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550
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354
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Changes in operating assets and liabilities, net of
acquisitions and dispositions:
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Accounts receivable
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(827
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)
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(1,881
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)
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Prepaid expenses, inventory and other current assets
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2,524
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111
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Accounts payable and accrued liabilities
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(2,239
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)
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3,943
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Cash provided by operating activities
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4,466
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22,547
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INVESTING ACTIVITIES
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Purchases of fixed assets
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(773
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)
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(1,957
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)
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Proceeds from sales of fixed assets
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|
345
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550
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Distributions and loan payments received from equity investments
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1,071
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|
945
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Acquisitions and equity investments
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(4,838
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)
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(7,533
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)
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Divestitures of businesses
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1,179
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Other
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104
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(28
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)
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Cash used in investing activities
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(4,091
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)
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|
(6,844
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)
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|
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FINANCING ACTIVITIES
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|
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Restricted cash (increase) decrease
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|
(943
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)
|
|
|
893
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|
Principal payments of debt financing and capital leases
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|
|
(2,924
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)
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|
|
(17,411
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)
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Proceeds from debt financing
|
|
|
17,971
|
|
|
|
7,385
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|
Capitalized debt costs
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|
(78
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)
|
|
|
(534
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)
|
Distributions to noncontrolling interests
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|
(4,861
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)
|
|
|
(5,175
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)
|
Proceeds from issuances of common stock
|
|
|
23
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|
|
|
275
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|
|
|
|
|
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Cash provided by (used in) financing activities
|
|
|
9,188
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|
|
|
(14,567
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
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Net increase in cash and cash equivalents during the period
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|
|
9,563
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|
|
|
1,136
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|
Cash and cash equivalents, beginning of period
|
|
|
4,492
|
|
|
|
12,925
|
|
|
|
|
|
|
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|
Cash and cash equivalents, end of period
|
|
$
|
14,055
|
|
|
$
|
14,061
|
|
|
|
|
|
|
|
|
See the accompanying notes to unaudited interim consolidated financial statements.
5
TLC VISION CORPORATION AND SUBSIDIARIES
NOTES TO UNAUDITED INTERIM
CONSOLIDATED FINANCIAL STATEMENTS
June 30, 2009 (Unaudited)
(Tabular amounts in thousands, except per share amounts)
The accompanying unaudited interim consolidated financial statements have been prepared in
accordance with accounting principles generally accepted in the United States for interim financial
information and with the instructions to Form 10-Q. Accordingly, they do not include all of the
information and footnotes required by accounting principles generally accepted in the United States
for complete financial statements. The unaudited interim consolidated financial statements included
herein should be read in conjunction with the Annual Report on Form 10-K for the year ended
December 31, 2008 filed by TLC Vision Corporation (Company or TLC
Vision
) with the Securities
and Exchange Commission. In the opinion of management, all normal recurring adjustments and
estimates considered necessary for a fair presentation have been included. The results of
operations for the interim periods are not necessarily indicative of the results that may be
expected for the entire year ending December 31, 2009. The consolidated financial statements as of
December 31, 2008 and unaudited interim consolidated financial statements for the three and six
months ended June 30, 2009 and 2008 include the accounts and transactions of the Company and its
majority-owned subsidiaries that are not considered variable interest entities (VIEs) and all
VIEs for which the Company is the primary beneficiary. All significant intercompany accounts and
transactions have been eliminated.
A significant portion of the Companys revenues come from owning and operating refractive
centers that employ laser technologies to treat common refractive vision disorders such as myopia
(nearsightedness), hyperopia (farsightedness) and astigmatism. Refractive centers, which is a
reportable segment, includes the Companys 71 centers that provide corrective laser surgery, of
which 63 are majority owned and 8 centers are minority owned. In its doctor services business, the
Company furnishes doctors and medical facilities with mobile or fixed site access to refractive
and cataract surgery equipment, supplies, technicians and diagnostic products, as well as owns and
manages single-specialty ambulatory surgery centers. In its eye care business, the Company provides
franchise opportunities to independent optometrists under its Vision Source
®
brand.
Effective January 1, 2009, the Company adopted Statement of Financial Accounting Standards
(SFAS) No. 160,
Noncontrolling Interests in Consolidated Financial Statements
. As required by
this Standard, the presentation of noncontrolling interests, previously referred to as minority
interest, has been changed on the Consolidated Balance Sheets to be reflected as a component of
total stockholders deficit and on the Consolidated Statements of Operations to be a specific
allocation of net income (loss). Amounts reported or included in prior periods remain unchanged,
but have been revised to conform with the current period presentation. Income (losses) per share
continue to be based on income (losses) attributable to TLC Vision Corporation.
In March 2008, the FASB issued Statement of Financial Accounting Standards No. 161,
Disclosures about Derivative Instruments and Hedging Activities, an Amendment of FASB No. 133
,
(SFAS 161). SFAS 161 is intended to improve transparency in financial reporting by requiring
enhanced disclosures of an entitys derivative instruments and hedging activities and their effects
on the entitys financial position, financial performance, and cash flows. SFAS 161 applies to all
derivative instruments within the scope of SFAS No. 133,
Accounting for Derivative Instruments and
Hedging Activities
, (SFAS 133). SFAS 161 also applies to non-derivative hedging instruments and
all hedged items designated and qualifying under SFAS 133. SFAS 161 is effective prospectively for
financial statements issued for fiscal years and interim periods beginning after November 15, 2008,
with early application encouraged. SFAS 161 encourages, but does not require, comparative
disclosures for periods prior to its initial adoption. The Company adopted SFAS 161 on January 1,
2009 and has prospectively adjusted its financial statements. The Companys adoption of SFAS 161
did not have a material impact on the financial statements.
6
In May 2009, the FASB issued SFAS No. 165,
Subsequent Events
, (SFAS 165), which establishes
general standards of accounting for and disclosure of events that occur after the balance sheet
date but before financial statements are issued. SFAS 165 was effective for the second fiscal
quarter of 2009 for the Company and did not have a material impact on its consolidated financial
position, results of operations, or cash flows. The Company performed an evaluation of subsequent
events through August 14, 2009, the date which the financial statements were issued, and has made
disclosures of all material subsequent events in the notes to the unaudited interim consolidated
financial statements.
The Company relies on the following sources of liquidity to continue to operate as a going
concern: (i) cash and cash equivalents on hand; (ii) cash generated from operations; (iii)
borrowings under the Companys revolving credit facility; (iv) net proceeds from asset sales; and
(v) access to the capital markets. The Companys principal uses of cash are to provide working
capital to fund its operation and to service its debt and other contractual obligations. The
changes in financial markets during 2008 limited the ability of companies such as TLC
Vision
to
access the capital markets. The economic recession in the United States continues to impact the
Companys operations, resulting in a decline in the demand for refractive surgery and financial
performance. The Company incurred losses attributable to TLC Vision Corporation of $8.2 million for
the six months ended June 30, 2009 compared to earnings of $3.9 million for the six months ended
June 30, 2008. As a result, the Companys liquidity continued to be constrained during 2009.
Beginning in early 2008, in response to the deteriorating economic environment, the Company
implemented a series of initiatives to reduce its costs of operation to levels commensurate with
the new lower level of refractive procedures. The Company continues to evaluate and implement cost
reduction and cash generation initiatives, including the sale of surplus assets and the closure of
underperforming refractive centers/mobile refractive routes. During the six months ended June 30,
2009, the Company closed three majority owned refractive centers, which performed approximately 400
and 800 refractive procedures during the six months ended June 30, 2009 and 2008, respectively.
Due to the decline in customer demand during the trailing twelve month period, and the
resulting decline in sales, the Companys deteriorating financial performance resulted in the
Companys inability to comply with its primary financial covenants under its Credit Facility as of
December 31, 2008, March 31, 2009 and June 30, 2009.
On June 8, 2009, the Company announced that it obtained from its lenders a Limited Waiver,
Consent and Amendment No. 3 to Credit Agreement, dated June 5, 2009 and continuing through June 30,
2009. The Limited Waiver, Consent and Amendment No. 3 provided, among other things, a limited
waiver expiring June 30, 2009 of certain defaults, amended certain terms of the Credit Agreement,
consented to the dissolution of several inactive subsidiaries, provided for the payment by the
Company of certain fees and expenses incurred by the lenders, delayed mandatory payment of $1.4
million of principal arising from a tax refund, and released any claims the Company may have had
against the lenders.
As of June 30, 2009, the Company failed to make various mandatory payments under its Credit
Agreement and related amendments. Such payments included interest on the term and revolving credit
advances of $0.2 million and principal payments on term advances of $0.2 million.
On August 3, 2009, the Company announced that it obtained from its lenders a Limited Waiver
and Amendment No. 4 to Credit Agreement, dated June 30, 2009. The Limited Waiver and Amendment No.
4, among other things, provides a limited waiver through September 9, 2009 of certain defaults and
provides that lenders will, until September 9, 2009, forbear from exercising their rights arising
out of the non-payment of certain principal, interest and other payments previously due. The
amendment also amends certain terms of the Credit Agreement, provides for the accrual of default
interest at an additional 2% per annum over otherwise applicable rates and releases any claims the
Company may have had against the lenders.
Given that it is unlikely that the Company will be in compliance with the covenants currently
in the Credit Facility for the balance of 2009 beyond the current waiver period unless amended, all
term borrowings aggregating $76.7 million under the Credit Facility have been recorded as current
liabilities as of June 30, 2009 and December
7
31, 2008. Accordingly, at June 30, 2009 and December 31, 2008, the Company has working capital
deficiencies of approximately $103.1 million and $99.5 million, respectively. The Company borrowed
an additional $17.4 million under the revolving portion of its Credit Facility during the six
months ended June 30, 2009, which reduced the open availability under the Credit Facility to
approximately $0.5 million at June 30, 2009. The outstanding balance of $23.4 million under the
revolving portion of the Credit Facility is also recorded as a current liability as of June 30,
2009.
The Company will likely continue to incur narrow operating losses in 2009 and its liquidity
will likely remain constrained such that it may not be sufficient to meet the Companys cash
operating needs in this period of economic uncertainty. The Company is in active discussions with
its lenders to ensure that it has sufficient liquidity in excess of what is available under its
Credit Facility, although there is no assurance that the Company can obtain additional liquidity on
commercially reasonable terms, if at all. If the Company is unable to obtain or sustain the
liquidity required to operate its business the Company may need to seek to modify the terms of its
debts and/or to reorganize its capital structure. There can be no assurances that the lenders will
grant such restructuring, waivers or amendments on commercially reasonable terms, if at all.
If the Company is unable to obtain or sustain the liquidity required to operate its business,
the Company may need to seek to modify the terms of its debts through court reorganization
proceedings to allow it, among other things, to reorganize its capital structure.
The Companys independent registered public accounting firms report issued in the December
31, 2008 Annual Report on Form 10-K included an explanatory paragraph describing the existence of
conditions that raise substantial doubt about the Companys ability to continue as a going concern,
including significant losses, limited access to additional liquidity and compliance with certain
financial covenants. The financial statements do not include any adjustments relating to the
recoverability and classification of asset carrying amounts or the amount and classification of
liabilities that may result should the Company be unable to continue as a going concern.
3.
|
|
ACQUISITIONS AND INVESTMENTS
|
The Companys strategy includes periodic acquisitions of, or investments in, entities that
operate within its chosen markets. During the six months ended June 30, 2009 and 2008, the Company
made investments of $4.8 million and $7.5 million, respectively, to acquire or invest in multiple
entities, none of which was individually material. Included in acquisition and equity investments
are cash payments during 2009 and 2008 of approximately $4.0 million and $6.5 million,
respectively, related to the Companys 2005 TruVision acquisition, which were included in the
purchase price allocation.
During 2005, the Company acquired a substantial portion of the assets of Kremer Laser Eye
(Kremer). As of June 30, 2009, Kremer operates three refractive centers, which the Company has an
approximate 84% ownership interest, and one ambulatory surgery center, which the Company has a 70%
ownership interest. As part of a transfer rights agreement entered on the acquisition date between
the Company and the non-controlling holders of Kremer, the non-controlling holders retain options
that could require the Company to purchase the remaining non-controlling interest. The first option
can be exercised during July 2009 with all remaining options being exercisable during July 2010 and
2012.
During July 2009, the Company received formal notification from the minority holders of Kremer
of their intent to exercise the first option. The option, if exercised, would transfer a portion of
the remaining non-controlling interest of Kremer to TLC
Vision
in exchange for approximately $1.9
million due August 2009. If the Company fails to make such payment all remaining options could
become exercisable on an accelerated basis. The Company is currently in discussions with the
non-controlling interest holders of Kremer to amend the terms of the transfer rights agreement.
As of June 30, 2009, the Company had $0.9 million of restricted cash to guarantee outstanding
bank letters of credit for leases. As of December 31, 2008, the Company had no restricted cash.
8
As of June 30, 2009, accrued liabilities include $4.0 million due to the former owners of
TruVision as part of the amended 2005 merger agreement. On August 10, 2009, the terms of this
payment were modified prospectively pursuant to the Amendment No. 2 to the amended 2005 merger
agreement, which is further discussed in Note 20,
Subsequent Events
.
The Company offers an extended lifetime warranty, i.e. the TLC Lifetime Commitment, at a
separately priced fee to customers selecting a certain lower base priced surgical procedure.
Revenues generated under this program are initially deferred and recognized over a period of five
years based on managements future estimates of retreatment volume, which are based on historical
warranty claim activity. The Companys deferred revenue balance was $0.8 million and $1.1 million
at June 30, 2009 and December 31, 2008, respectively.
Debt consists of:
|
|
|
|
|
|
|
|
|
|
|
JUNE 30,
|
|
|
DECEMBER 31,
|
|
|
|
2009
|
|
|
2008
|
|
Senior term loan; weighted average interest rate of 6.50% and 8.76%
at June 30, 2009 and December 31, 2008, respectively
|
|
$
|
76,667
|
|
|
$
|
76,667
|
|
|
|
|
|
|
|
|
|
|
Revolving credit facility, weighted average interest rate of 5.31% and
6.60% at June 30, 2009 and December 31, 2008, respectively
|
|
|
23,400
|
|
|
|
6,000
|
|
|
|
|
|
|
|
|
|
|
Capital lease obligations, payable through 2013, interest at various rates
|
|
|
13,526
|
|
|
|
14,176
|
|
|
|
|
|
|
|
|
|
|
Sale-leaseback debt interest imputed at 6.25%, due through October
2016, collateralized by building (Cdn $6.4 million and Cdn $6.7 million
at June 30, 2009 and December 31, 2008, respectively)
|
|
|
5,509
|
|
|
|
5,453
|
|
|
|
|
|
|
|
|
|
|
Other
|
|
|
3,484
|
|
|
|
3,285
|
|
|
|
|
|
|
|
|
|
|
|
122,586
|
|
|
|
105,581
|
|
|
|
|
|
|
|
|
|
|
Less current portion
|
|
|
106,837
|
|
|
|
89,081
|
|
|
|
|
|
|
|
|
|
|
$
|
15,749
|
|
|
$
|
16,500
|
|
|
|
|
|
|
|
|
The Company obtained a $110.0 million credit facility (Credit Facility) during June 2007,
which is secured by substantially all of the assets of the Company and consisting of both senior
term debt and a revolver as follows:
|
|
|
Senior term debt, totaling $85.0 million, with a six-year term and required amortization
payments of 1% per annum plus a percentage of excess cash flow (as defined in the
agreement) and sales of assets or borrowings outside of the normal course of business. As
of June 30, 2009, $76.7 million was outstanding on this portion of the facility.
|
|
|
|
|
A revolving credit facility, totaling $25.0 million with a five-year term. As of June
30, 2009, the Company had $23.4 million outstanding under this portion of the facility and
outstanding letters of credit totaling approximately $1.1 million. Accordingly,
availability under the revolving credit facility is $0.5 million at June 30, 2009.
|
Interest on the facility is calculated based on either prime rate or the London Interbank
Offered Rate (LIBOR) plus a margin, which at June 30, 2009 was 4.00% for prime rate borrowings and
5.00% for LIBOR borrowings. In addition, the Company pays an annual commitment fee equal to 0.35%
on the undrawn portion of the revolving credit facility.
As a result of certain events of default and the June 30, 2009 expiration of the Limited
Waiver, Consent and Amendment No. 3 to Credit Agreement, as described in further detail below, the
LIBOR advances with interest
periods ending on or after June 30, 2009 automatically converted to prime rate advances at the
end of such interest periods.
9
The Credit Facility also requires the Company to maintain various financial and non-financial
covenants as defined in the Credit Agreement. As of December 31, 2008, March 31, 2009 and June 30,
2009, the Company was unable to satisfy various financial covenants.
On June 8, 2009, the Company announced that it obtained from its lenders a Limited Waiver,
Consent and Amendment No. 3 to Credit Agreement, dated June 5, 2009 and continuing through June 30,
2009. The Limited Waiver, Consent and Amendment No. 3 provided, among other things, a limited
waiver expiring June 30, 2009 of certain defaults, amended certain terms of the Credit Agreement,
consented to the dissolution of several inactive subsidiaries, provided for the payment by the
Company of certain fees and expenses incurred by the lenders, delayed mandatory payment of $1.4
million of principal arising from a tax refund, and released any claims the Company may have had
against the lenders.
As of June 30, 2009, the Company failed to make various mandatory payments under its Credit
Facility and related amendments. Such payments included interest on the term and revolving credit
advances of $0.2 million and principal payments on term advances of $0.2 million.
On August 3, 2009, the Company announced that it obtained from its lenders a Limited Waiver
and Amendment No. 4 to Credit Agreement, dated June 30, 2009. The Limited Waiver and Amendment No.
4, among other things, provides a limited waiver through September 9, 2009 of certain defaults and
provides that lenders will, until September 9, 2009, forbear from exercising their rights arising
out of the non-payment of certain principal, interest and other payments previously due. The
amendment also amends certain terms of the Credit Agreement, provides for the accrual of default
interest at an additional 2% per annum over otherwise applicable rates and releases any claims the
Company may have had against the lenders.
8.
|
|
INTEREST RATE SWAP AGREEMENTS
|
The Company does not enter into financial instruments for trading or speculative purposes. As
required under the Companys Credit Facility, during August and December 2007 the Company entered
into interest rate swap agreements to eliminate the variability of cash required for interest
payments for a majority of the total variable rate debt. Under the agreement entered during August
2007, the Company receives a floating rate based on the LIBOR interest rate and pays a fixed rate
of 5.0% on notional amounts ranging from $20 million to $42 million over the life of the swap
agreement, which matures on April 1, 2010. Under the agreement entered during December 2007, with
an effective date of January 2, 2008, the Company receives a floating rate based on the LIBOR
interest rate and pays a fixed rate of 3.9% on notional amounts ranging from $20 million to $32
million over the life of the swap agreement, which matures on April 1, 2010.
As of June 30, 2009, the outstanding notional amount of the interest rate swaps was $52
million and the Company recorded a liability of $1.6 million to recognize the fair value of the
interest derivatives. By using derivative instruments to hedge exposure to changes in interest
rates, the Company exposes itself to credit risk, or the failure of one party to perform under the
terms of the derivative contract. As of June 30, 2009, the Company recorded an offset to its
interest rate swap liability of $0.4 million to account for its credit risk. As of December 31,
2008, the outstanding notional amount of the interest rate swaps was $59 million and the Company
recorded a liability of $1.5 million to recognize the fair value of the interest derivatives.
The Companys interest rate swaps qualify as cash flow hedges. The Company records the
unrealized gain or loss resulting from changes in fair value as a component of other comprehensive
income/(loss). The Company subsequently reclassifies those cumulative gains and losses to earnings
contemporaneously with and to the same line item as the earnings effects of the hedged item. As a
result, the Company recorded $0.4 million and $0.8 million in interest expense related to the
interest rate swaps during the three and six months ended June 30, 2009, respectively. The interest
expense related to the interest rate swaps during the three and six months ended June 30, 2008 was
$0.2 million.
Effective July 9, 2009, the interest rate swaps were terminated. See Note 20,
Subsequent
Events,
for additional detail.
10
9.
|
|
STOCK-BASED COMPENSATION
|
Total stock-based compensation for the three months ended June 30, 2009 was $0.1 million and
was related to the TLC
Vision
Stock Option Plan. Total stock-based compensation for the three months
ended June 30, 2008 was $0.3 million and was related to the TLC
Vision
Stock Option Plan and the
Companys Employee Share Purchase Plan. Effective January 1, 2009, the Company suspended future
employee contributions to the Companys Employee Share Purchase Plan due to the limited
availability of Company shares under such Plan. Total stock-based compensation was $0.3 million and
$0.7 million for the six months ended June 30, 2009 and 2008, respectively.
As of June 30, 2009, the total unrecognized compensation expense related to TLC
Vision
non-vested awards was approximately $1.9 million. The unrecognized compensation expense will be
recognized over the remaining vesting periods, the last of which expires during December 2012 for
certain options.
For awards granted prior to the January 1, 2006 adoption of Statement 123(R), the Company uses
the attribution method under FASB Interpretation No. 28,
Accounting for Stock Appreciation Rights
and Other Variable Stock Option Award Plans
, to amortize stock-based compensation cost. For awards
granted subsequent to the adoption of Statement 123(R), the Company uses the straight-line method
to amortize stock-based compensation cost.
On December 10, 2008, the Company granted conditional options for shares. During the three
months ended June 30, 2009, the condition for these options was satisfied resulting in 362,500
options for shares being granted. The Company began recognizing compensation expense related to
these conditional options during the quarter ended June 30, 2009 and will continue recognizing such
expense through vesting. The Company granted no other options during the three or six months ended
June 30, 2009. The Company granted options for 30,000 and 36,000 shares during the three and six
months ended June 30, 2008, respectively.
The fair value of stock options granted to employees is estimated on the date of grant using
the Black-Scholes option pricing model with the following weighted-average assumptions for 2009 and
2008, respectively: risk-free interest rate of 2.5% and 3.2%; expected dividend yield of 0%;
expected life of 3.8 years and 4.4 years; and expected volatility of 103% and 55%.
10.
|
|
OTHER EXPENSE (INCOME), NET
|
Other expense (income), net, includes the following operating items:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
THREE MONTHS ENDED
|
|
|
SIX MONTHS ENDED
|
|
|
|
JUNE 30,
|
|
|
JUNE 30,
|
|
|
|
2009
|
|
|
2008
|
|
|
2009
|
|
|
2008
|
|
Gain on sales and disposals of fixed assets
|
|
$
|
(113
|
)
|
|
$
|
(220
|
)
|
|
$
|
(277
|
)
|
|
$
|
(289
|
)
|
|
Center closing costs
|
|
|
436
|
|
|
|
|
|
|
|
716
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Gain on sales of subsidiaries
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(145
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Employee severance expense
|
|
|
2,254
|
|
|
|
|
|
|
|
2,513
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Financial and legal advisor costs
|
|
|
2,882
|
|
|
|
|
|
|
|
5,029
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Miscellaneous income
|
|
|
169
|
|
|
|
(139
|
)
|
|
|
165
|
|
|
|
(122
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
$
|
5,628
|
|
|
$
|
(359
|
)
|
|
$
|
8,146
|
|
|
$
|
(556
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
11.
|
|
RESTRUCTURING OF OPERATIONS
|
During 2009, the Company accelerated its cost savings initiatives that focused on employee
reductions, closures of refractive centers and the reduction in refractive access routes. The
restructuring efforts during the six months ended June 30, 2009 resulted in the closure of three
majority-owned refractive centers and an approximate 15% reduction of the Companys workforce
through involuntary employee separations. In addition to the cost savings initiatives, the
restructuring efforts also included financial and legal advisor fees associated with the ongoing
Credit Facility negotiations.
11
As a result, the Company incurred restructuring charges included in other expenses totaling
$8.3 million for the
six months ended June 30, 2009, which included $5.0 million of financial and legal advisor
costs, $2.5 million for employee severance and benefits and $0.7 million of center closing costs.
The restructuring charges for the three months ended June 30, 2009 were $5.6 million, which
included $2.9 million of financial and legal advisor costs, $2.3 million for employee severance and
benefits and $0.4 million of center closing costs.
As of
June 30, 2009, the Companys restructuring reserves were
$2.2
million and were included in accrued liabilities in the
consolidated balance sheet.
The following table summarizes various restructuring efforts:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
EMPLOYEE
|
|
|
|
|
|
|
|
|
|
SEVERANCE
|
|
|
CENTER
|
|
|
|
|
|
|
& BENEFITS
|
|
|
CLOSING COSTS
|
|
|
TOTAL
|
|
Restructuring charges
|
|
$
|
259
|
|
|
$
|
280
|
|
|
$
|
539
|
|
Non-cash write-downs
|
|
|
|
|
|
|
(125
|
)
|
|
|
(125
|
)
|
Cash payments
|
|
|
(192
|
)
|
|
|
|
|
|
|
(192
|
)
|
|
|
|
|
|
|
|
|
|
|
Accrual balance as of March 31, 2009
|
|
|
67
|
|
|
|
155
|
|
|
|
222
|
|
Restructuring charges
|
|
|
2,254
|
|
|
|
436
|
|
|
|
2,690
|
|
Non-cash write-downs
|
|
|
|
|
|
|
|
|
|
|
|
|
Cash payments
|
|
|
(588
|
)
|
|
|
(84
|
)
|
|
|
(672
|
)
|
|
|
|
|
|
|
|
|
|
|
Accrual balance as of June 30, 2009
|
|
$
|
1,733
|
|
|
$
|
507
|
|
|
$
|
2,240
|
|
As of June 30, 2009, the Company currently estimates that its restructuring efforts will
likely continue through the quarter ending September 30, 2009. Such estimate may change and is
dependent on the outcome of various cost reduction and Credit Facility negotiation efforts.
The Companys tax provision for interim periods is determined using an estimate of its annual
tax expense based on the forecasted taxable income for the full year. The Company believes there is
the potential for volatility in its 2009 effective tax rate due to several factors, primarily from
the impact of any changes to the forecasted earnings.
As of June 30, 2009, the Company continues to believe that there is insufficient evidence to
recognize certain deferred tax assets. Accordingly, the Company continues to carry a full valuation
allowance to offset its deferred tax assets. The determination of the appropriate amount of
deferred tax asset to recognize is regularly evaluated and is primarily based on expected taxable
income in future years, trends of historical taxable income, and other relevant factors.
Section 382 of the Internal Revenue Code of 1986, as amended, imposes significant annual
limitations on the utilization of net operating losses (NOLs). Such NOL limitations result upon the
occurrence of certain events, including an ownership change as defined by Section 382.
Under Section 382, when an ownership change occurs, the calculation of the annual NOL
limitation is affected by several factors, including the number of shares outstanding and the
trading price before the ownership change occurred. As a result of recent significant shareholder
activity, the Company concluded that an ownership change occurred in early 2008 limiting future
utilization of NOLs. The Company currently estimates that this annual limit will result in $67.7
million of NOLs expiring before becoming available.
The Company, including its domestic and foreign subsidiaries, is subject to U.S. federal
income tax as well as income tax of multiple state and other jurisdictions. Tax years 1997 through
present are not yet closed for U.S. federal and state income tax purposes due to net operating
losses carried forward from that time.
12
13.
|
|
NET (LOSS) INCOME PER SHARE
|
The following table represents the calculation of net (loss) income attributable to TLC Vision
Corporation per common share :
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
THREE MONTHS ENDED JUNE 30,
|
|
|
SIX MONTHS ENDED JUNE 30,
|
|
(in thousands, except per share amounts)
|
|
2009
|
|
|
2008
|
|
|
2009
|
|
|
2008
|
|
|
|
|
|
|
Numerator:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net (loss) income attributable to TLC Vision
Corporation
|
|
$
|
(6,859
|
)
|
|
$
|
(2,200
|
)
|
|
$
|
(8,183
|
)
|
|
$
|
3,872
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Denominator:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Weighted-average shares outstanding basic
|
|
|
50,565
|
|
|
|
50,292
|
|
|
|
50,542
|
|
|
|
50,265
|
|
Effect of dilutive stock options *
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
28
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Weighted-average shares outstanding diluted
|
|
|
50,565
|
|
|
|
50,292
|
|
|
|
50,542
|
|
|
|
50,293
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net (loss) income attributable to TLC Vision
Corporation per common share:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Basic
|
|
$
|
(0.14
|
)
|
|
$
|
(0.04
|
)
|
|
$
|
(0.16
|
)
|
|
$
|
0.08
|
|
Diluted
|
|
$
|
(0.14
|
)
|
|
$
|
(0.04
|
)
|
|
$
|
(0.16
|
)
|
|
$
|
0.08
|
|
|
|
|
*
|
|
The effects of including the incremental shares associated with options
and warrants are anti-dilutive for the three and six months ended June 30, 2009
and for the three months ended June 30 2008, and are not included in
weighted-average shares outstanding-diluted. The total weighted-average number of
options with an exercise price less than the average closing price of the
Companys common stock was 0.8 million and zero for the three and six months ended
June 30, 2009, respectively. The total weighted-average number of options with an
exercise price less than the average closing price of the Companys common stock
was 0.1 million for the three months ended June 30, 2008.
|
14.
|
|
STOCKHOLDERS (DEFICIT) EQUITY
|
The following table reflects the changes in stockholders (deficit) equity attributable to
both TLC Vision Corporation and the noncontrolling interests of the subsidiaries in which the
Company has a majority, but not total, ownership interest.
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
ATTRIBUTABLE
|
|
|
|
|
|
|
ATTRIBUTABLE
|
|
|
TO
|
|
|
|
|
|
|
TO TLC VISION
|
|
|
NONCONTROLLING
|
|
|
|
|
|
|
CORPORATION
|
|
|
INTEREST
|
|
|
TOTAL
|
|
Stockholders (deficit) equity at December 31, 2008
|
|
$
|
(35,346
|
)
|
|
$
|
15,330
|
|
|
$
|
(20,016
|
)
|
Shares issued as part of the employee share purchase plan
|
|
|
22
|
|
|
|
|
|
|
|
22
|
|
Stock based compensation
|
|
|
343
|
|
|
|
|
|
|
|
343
|
|
Distributions to noncontrolling interest
|
|
|
|
|
|
|
(4,861
|
)
|
|
|
(4,861
|
)
|
Comprehensive income
|
|
|
|
|
|
|
|
|
|
|
|
|
Deferred hedge income
|
|
|
378
|
|
|
|
|
|
|
|
378
|
|
Net (loss) income
|
|
|
(8,183
|
)
|
|
|
5,358
|
|
|
|
(2,825
|
)
|
|
|
|
|
|
|
|
|
|
|
Stockholders (deficit) equity at June 30, 2009
|
|
$
|
(42,786
|
)
|
|
$
|
15,827
|
|
|
$
|
(26,959
|
)
|
The Companys reportable segments are strategic business units that offer different products
and services. They are managed and evaluated separately by the chief operating decision maker
because each business requires different management and marketing strategies. The Company has three
lines of business and five reportable segments including Other as follows:
|
|
|
Refractive Centers:
The refractive centers business provides a significant
portion of the Companys revenue and is in the business of providing corrective laser
surgery (principally LASIK) in fixed sites typically
branded under the TLC name.
|
13
|
|
|
Doctor Services:
The doctor services business provides a variety of services and
products directly to doctors and the facilities in which they perform surgery. It consists
of the following segments:
|
|
|
|
Mobile Cataract: The mobile cataract segment provides technology and diagnostic
equipment and services to doctors and hospitals to support cataract surgery as well
as treatment of other eye diseases.
|
|
|
|
|
Refractive Access: The refractive access segment assists surgeons in providing
corrective laser surgery in their own practice location by providing refractive
technology, technicians, service and practice development support at the surgeons
office.
|
|
|
|
|
Other: The Company has ownership interests in businesses that manage surgical and
secondary care centers. None of these businesses meets the quantitative criteria to
be disclosed separately as a reportable segment and they are included in Other for
segment disclosure purposes.
|
|
|
|
Eye Care:
The eye care business consists of the optometric franchising business
segment. The optometric franchising segment provides marketing, practice development and
purchasing power to independently-owned and operated optometric practices in the United
States and Canada.
|
Corporate depreciation and amortization of $0.3 million and $0.6 million for the three months
ended June 30, 2009 and 2008, respectively, is included in corporate operating expenses. Corporate
depreciation and amortization of $0.7 million and $1.2 million for the six months ended June 30,
2009 and 2008, respectively, is included in corporate operating expenses. For purposes of the
depreciation and amortization disclosures shown below, these amounts are included in the refractive
centers reporting segment.
The Companys reportable segments are as follows:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
DOCTOR SERVICES
|
|
|
EYE CARE
|
|
|
|
|
THREE MONTHS ENDED JUNE 30, 2009
|
|
REFRACTIVE
|
|
|
REFRACTIVE
|
|
|
MOBILE
|
|
|
|
|
|
|
OPTOMETRIC
|
|
|
|
|
(IN THOUSANDS)
|
|
CENTERS
|
|
|
ACCESS
|
|
|
CATARACT
|
|
|
OTHER
|
|
|
FRANCHISING
|
|
|
TOTAL
|
|
Revenues
|
|
$
|
26,948
|
|
|
$
|
5,988
|
|
|
$
|
11,267
|
|
|
$
|
7,237
|
|
|
$
|
7,019
|
|
|
$
|
58,459
|
|
Cost of revenues (excluding amortization)
|
|
|
21,595
|
|
|
|
4,875
|
|
|
|
8,052
|
|
|
|
4,830
|
|
|
|
3,150
|
|
|
|
42,502
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Gross profit
|
|
|
5,353
|
|
|
|
1,113
|
|
|
|
3,215
|
|
|
|
2,407
|
|
|
|
3,869
|
|
|
|
15,957
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Segment expenses:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Marketing and sales
|
|
|
2,966
|
|
|
|
22
|
|
|
|
1,325
|
|
|
|
78
|
|
|
|
1,118
|
|
|
|
5,509
|
|
G&A, amortization and other
|
|
|
1,870
|
|
|
|
(14
|
)
|
|
|
838
|
|
|
|
312
|
|
|
|
14
|
|
|
|
3,020
|
|
(Earnings) loss from equity investments
|
|
|
(93
|
)
|
|
|
|
|
|
|
|
|
|
|
(349
|
)
|
|
|
|
|
|
|
(442
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Segment profit
|
|
$
|
610
|
|
|
$
|
1,105
|
|
|
$
|
1,052
|
|
|
$
|
2,366
|
|
|
$
|
2,737
|
|
|
$
|
7,870
|
|
Noncontrolling interest
|
|
|
158
|
|
|
|
(4
|
)
|
|
|
|
|
|
|
993
|
|
|
|
1,298
|
|
|
|
2,445
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Segment profit attributable to TLC Vision Corp.
|
|
$
|
452
|
|
|
$
|
1,109
|
|
|
$
|
1,052
|
|
|
$
|
1,373
|
|
|
$
|
1,439
|
|
|
$
|
5,425
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Corporate operating expenses
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(9,582
|
)
|
Interest expense, net
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(2,428
|
)
|
Income tax expense
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(274
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net loss attributable to TLC Vision Corporation
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(6,859
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Depreciation and amortization
|
|
$
|
2,388
|
|
|
$
|
531
|
|
|
$
|
729
|
|
|
$
|
337
|
|
|
$
|
12
|
|
|
$
|
3,997
|
|
14
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
DOCTOR SERVICES
|
|
|
EYE CARE
|
|
|
|
|
THREE MONTHS ENDED JUNE 30, 2008
|
|
REFRACTIVE
|
|
|
REFRACTIVE
|
|
|
MOBILE
|
|
|
|
|
|
|
OPTOMETRIC
|
|
|
|
|
(IN THOUSANDS)
|
|
CENTERS
|
|
|
ACCESS
|
|
|
CATARACT
|
|
|
OTHER
|
|
|
FRANCHISING
|
|
|
TOTAL
|
|
Revenues
|
|
$
|
39,057
|
|
|
$
|
7,680
|
|
|
$
|
11,153
|
|
|
$
|
6,695
|
|
|
$
|
9,512
|
|
|
$
|
74,097
|
|
Cost of revenues (excluding amortization)
|
|
|
29,409
|
|
|
|
6,373
|
|
|
|
8,001
|
|
|
|
4,306
|
|
|
|
4,691
|
|
|
|
52,780
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Gross profit
|
|
|
9,648
|
|
|
|
1,307
|
|
|
|
3,152
|
|
|
|
2,389
|
|
|
|
4,821
|
|
|
|
21,317
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Segment expenses:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Marketing and sales
|
|
|
7,219
|
|
|
|
38
|
|
|
|
1,834
|
|
|
|
100
|
|
|
|
1,018
|
|
|
|
10,209
|
|
G&A, amortization and other
|
|
|
1,804
|
|
|
|
(187
|
)
|
|
|
1,050
|
|
|
|
426
|
|
|
|
6
|
|
|
|
3,099
|
|
(Earnings) losses from equity investments
|
|
|
664
|
|
|
|
|
|
|
|
|
|
|
|
(345
|
)
|
|
|
|
|
|
|
319
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Segment profit (loss)
|
|
$
|
(39
|
)
|
|
$
|
1,456
|
|
|
$
|
268
|
|
|
$
|
2,208
|
|
|
$
|
3,797
|
|
|
$
|
7,690
|
|
Noncontrolling interest
|
|
|
203
|
|
|
|
24
|
|
|
|
|
|
|
|
1,066
|
|
|
|
1,783
|
|
|
|
3,076
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Segment profit (loss) attributable to TLC Vision Corp.
|
|
$
|
(242
|
)
|
|
$
|
1,432
|
|
|
$
|
268
|
|
|
$
|
1,142
|
|
|
$
|
2,014
|
|
|
$
|
4,614
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Corporate operating expenses
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(4,331
|
)
|
Interest expense, net
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(2,198
|
)
|
Income tax expense
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(285
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net loss attributable to TLC Vision Corporation
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(2,200
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Depreciation and amortization
|
|
$
|
3,195
|
|
|
$
|
710
|
|
|
$
|
688
|
|
|
$
|
375
|
|
|
$
|
14
|
|
|
$
|
4,982
|
|
|
|
|
|
|
|
|
DOCTOR SERVICES
|
|
|
EYE CARE
|
|
|
|
|
SIX MONTHS ENDED JUNE 30, 2009
|
|
REFRACTIVE
|
|
|
REFRACTIVE
|
|
|
MOBILE
|
|
|
|
|
|
|
OPTOMETRIC
|
|
|
|
|
(IN THOUSANDS)
|
|
CENTERS
|
|
|
ACCESS
|
|
|
CATARACT
|
|
|
OTHER
|
|
|
FRANCHISING
|
|
|
TOTAL
|
|
Revenues
|
|
$
|
62,948
|
|
|
$
|
13,469
|
|
|
$
|
20,843
|
|
|
$
|
13,736
|
|
|
$
|
16,885
|
|
|
$
|
127,881
|
|
Cost of revenues (excluding amortization)
|
|
|
47,630
|
|
|
|
11,177
|
|
|
|
15,353
|
|
|
|
9,561
|
|
|
|
7,922
|
|
|
|
91,643
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Gross profit
|
|
|
15,318
|
|
|
|
2,292
|
|
|
|
5,490
|
|
|
|
4,175
|
|
|
|
8,963
|
|
|
|
36,238
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Segment expenses:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Marketing and sales
|
|
|
7,001
|
|
|
|
45
|
|
|
|
2,970
|
|
|
|
207
|
|
|
|
2,114
|
|
|
|
12,337
|
|
G&A, amortization and other
|
|
|
3,745
|
|
|
|
1
|
|
|
|
1,838
|
|
|
|
678
|
|
|
|
20
|
|
|
|
6,282
|
|
Earnings from equity investments
|
|
|
(240
|
)
|
|
|
|
|
|
|
|
|
|
|
(552
|
)
|
|
|
|
|
|
|
(792
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Segment profit
|
|
$
|
4,812
|
|
|
$
|
2,246
|
|
|
$
|
682
|
|
|
$
|
3,842
|
|
|
$
|
6,829
|
|
|
$
|
18,411
|
|
Noncontrolling interest
|
|
|
520
|
|
|
|
8
|
|
|
|
|
|
|
|
1,574
|
|
|
|
3,256
|
|
|
|
5,358
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Segment profit attributable to TLC Vision Corp.
|
|
$
|
4,292
|
|
|
$
|
2,238
|
|
|
$
|
682
|
|
|
$
|
2,268
|
|
|
$
|
3,573
|
|
|
$
|
13,053
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Corporate operating expenses
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(15,357
|
)
|
Interest expense, net
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(5,395
|
)
|
Income tax expense
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(484
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net loss attributable to TLC Vision Corporation
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(8,183
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Depreciation and amortization
|
|
$
|
4,815
|
|
|
$
|
1,058
|
|
|
$
|
1,446
|
|
|
$
|
666
|
|
|
$
|
24
|
|
|
$
|
8,009
|
|
15
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
DOCTOR SERVICES
|
|
|
EYE CARE
|
|
|
|
|
SIX MONTHS ENDED JUNE 30, 2008
|
|
REFRACTIVE
|
|
|
REFRACTIVE
|
|
|
MOBILE
|
|
|
|
|
|
|
OPTOMETRIC
|
|
|
|
|
(IN THOUSANDS)
|
|
CENTERS
|
|
|
ACCESS
|
|
|
CATARACT
|
|
|
OTHER
|
|
|
FRANCHISING
|
|
|
TOTAL
|
|
Revenues
|
|
$
|
98,024
|
|
|
$
|
17,970
|
|
|
$
|
20,350
|
|
|
$
|
12,271
|
|
|
$
|
15,837
|
|
|
$
|
164,452
|
|
Cost of revenues (excluding amortization)
|
|
|
66,766
|
|
|
|
13,734
|
|
|
|
14,891
|
|
|
|
8,196
|
|
|
|
7,513
|
|
|
|
111,100
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Gross profit
|
|
|
31,258
|
|
|
|
4,236
|
|
|
|
5,459
|
|
|
|
4,075
|
|
|
|
8,324
|
|
|
|
53,352
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Segment expenses:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Marketing and sales
|
|
|
16,143
|
|
|
|
76
|
|
|
|
3,425
|
|
|
|
229
|
|
|
|
1,987
|
|
|
|
21,860
|
|
G&A, amortization and other
|
|
|
4,044
|
|
|
|
(206
|
)
|
|
|
2,136
|
|
|
|
745
|
|
|
|
47
|
|
|
|
6,766
|
|
(Earnings) losses from equity investments
|
|
|
658
|
|
|
|
|
|
|
|
|
|
|
|
(556
|
)
|
|
|
|
|
|
|
102
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Segment profit (loss)
|
|
$
|
10,413
|
|
|
$
|
4,366
|
|
|
$
|
(102
|
)
|
|
$
|
3,657
|
|
|
$
|
6,290
|
|
|
$
|
24,624
|
|
Noncontrolling interest
|
|
|
1,242
|
|
|
|
67
|
|
|
|
|
|
|
|
1,752
|
|
|
|
2,831
|
|
|
|
5,892
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Segment profit (loss) attributable to TLC Vision Corp.
|
|
$
|
9,171
|
|
|
$
|
4,299
|
|
|
$
|
(102
|
)
|
|
$
|
1,905
|
|
|
$
|
3,459
|
|
|
$
|
18,732
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Corporate operating expenses
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(9,664
|
)
|
Interest expense, net
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(4,464
|
)
|
Income tax expense
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(732
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net profit attributable to TLC Vision Corporation
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
3,872
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Depreciation and amortization
|
|
$
|
6,341
|
|
|
$
|
1,385
|
|
|
$
|
1,374
|
|
|
$
|
751
|
|
|
$
|
26
|
|
|
$
|
9,877
|
|
16. SUPPLEMENTAL CASH FLOW INFORMATION
Non-cash transactions:
|
|
|
|
|
|
|
|
|
|
|
SIX MONTHS ENDED JUNE 30,
|
|
|
2009
|
|
2008
|
Capital lease obligations relating
to equipment purchases
|
|
$
|
1,958
|
|
|
$
|
2,117
|
|
Other comprehensive (income) loss on hedge
|
|
|
(378
|
)
|
|
|
455
|
|
Option and warrant reduction
|
|
|
|
|
|
|
92
|
|
Cash paid for the following:
|
|
|
|
|
|
|
|
|
|
|
SIX MONTHS ENDED JUNE 30,
|
|
|
2009
|
|
2008
|
Interest
|
|
$
|
6,649
|
|
|
$
|
4,493
|
|
Income taxes
|
|
|
589
|
|
|
|
1,015
|
|
17.
|
|
FAIR VALUE MEASUREMENT
|
In September 2006, the FASB issued Statement of Financial Accounting Standards No. 157,
Fair
Value Measurements
, (SFAS 157), which defines fair value, establishes a framework for measuring
fair value, and expands disclosures about fair value measurements. The provisions of SFAS 157 were
effective for the Company as of January 1, 2008. However, the FASB deferred the effective date of
SFAS 157 until the beginning of the Companys 2009 fiscal year as it relates to fair value
measurement requirements for nonfinancial assets, such as goodwill, and liabilities that are not
remeasured at fair value on a recurring basis. The Companys adoption of SFAS 157 did not have a
material impact on the financial statements.
During the quarter ended June 30, 2009, the Company implemented FASB Staff Position FAS 107-1
and APB 28-1,
Interim Disclosures about Fair Value of Financial Instruments,
(FSP FAS 107-1). FSP
FAS 107-1 amended SFAS No. 107,
Disclosures about Fair Value of Financial Instruments,
and APB
Opinion No. 28,
Interim Financial Reporting
, to require disclosures about the fair value of
financial instruments in interim as well as in annual financial statements. The adoption of this
FSP did not impact our financial position or results of operations.
16
The fair value framework requires the categorization of assets and liabilities into three
levels based upon the assumptions (inputs) used to price the assets or liabilities. Level 1
provides the most reliable measure of fair value, whereas Level 3 generally requires significant
management judgment. The three levels are defined as follows:
|
|
|
Level 1:
Unadjusted quoted prices in active markets for identical assets and
liabilities.
|
|
|
|
|
Level 2:
Observable inputs other than those included in Level 1. For example, quoted
prices for similar assets or liabilities in active markets or quoted prices for identical
assets or liabilities in inactive markets.
|
|
|
|
|
Level 3:
Unobservable inputs reflecting managements own assumptions about the inputs
used in pricing the asset or liability.
|
Cash and cash equivalents of $14.1 million at June 30, 2009 are primarily comprised of either
bank deposits or amounts invested in money market funds, the fair value of which is based on
unadjusted quoted prices in active markets for identical assets (Level 1).
As of June 30, 2009, the carrying value and approximate fair value
was $100.1 million and $91.3 million, respectively, relating to the
Company's combined term and revolving advances under the Credit
Facility. The fair value
was estimated by discounting the amount of estimated future cash
flows associated with the respective debt instruments using the
Companys current incremental rate of borrowing for similar debt
instruments (Level 3). The calculation of fair value assumes no
acceleration of payments that may be required under default
provisions included in the Companys Credit Facility.
The Company accounts for its interest rate swaps at fair value and at June 30, 2009 and
December 31, 2008 had gross liabilities (amounts due to counterparties) of $1.6 million and $1.5
million, respectively, which were reported on the balance sheet as other long-term liabilities. By
using derivative instruments to hedge exposure to changes in interest rates, the Company exposes
itself to credit risk, or the failure of one party to perform under the terms of the derivative
contract. As of June 30, 2009, the Company recorded an offset to its interest rate swap liability
of $0.4 million to account for its credit risk. The interest rate swaps are valued using inputs
obtained in quoted public markets (Level 2).
On April 23, 2009, the Company announced that James C. Wachtman resigned as Chief Executive
Officer and as a member of the Board of Directors of the Company, effective immediately. The
Company also announced that James B. Tiffany was named President and Chief Operating Officer,
effective immediately.
On April 23, 2009, the Company also announced that it created the position of Chief
Restructuring Officer and formed an Office of the Chairman. Michael Gries, a principal of Conway,
Del Genio, Gries & Co. LLC (CDG), a financial advisory firm based in New York, NY, accepted the
position of Chief Restructuring Officer. The new three-person Office of the Chairman will report to
the Board of Directors and is comprised of: Chairman Warren Rustand; President and Chief Operating
Officer, James B.Tiffany; and Chief Restructuring Officer, Michael Gries.
On May 15, 2009, the Company announced that as part of its efforts to reduce costs, it
terminated the employment of three executive officers, effective immediately. The three executive
officers impacted were: Steven P. Rasche, Chief Financial Officer; Brian L. Andrew, General Counsel
and Secretary; and Larry D. Hohl, President of Refractive Centers.
On May 15, 2009, the Company also announced that William J. McManus, a managing director of
CDG, was appointed to the position of Interim Chief Financial Officer. Mr. Andrews non-legal
responsibilities as well as Mr. Hohls responsibilities have been assumed by James B. Tiffany. Mr.
Andrews legal responsibilities have been assumed on an interim basis by Company attorneys and
external counsel.
19.
|
|
RELATED PARTY TRANSACTIONS
|
As noted in Note 18,
Executive Officers
, the Companys Interim Chief Financial Officer and
Chief Restructuring Officer are employed by CDG. The Company has retained CDG to provide consulting
services relating to the Companys ongoing restructuring efforts, which include cost saving
initiatives and Credit Facility negotiations. During the three and six months ended June 30, 2009,
the Company paid CDG approximately $0.6 million and $1.0 million, respectively.
17
Interest Rate Swap Agreements
Effective July 9, 2009, Citibank and the Company agreed to the early termination of the
interest rate swap agreements entered August and December 2007. In consideration for Citibanks
agreement to terminate the interest rate swaps, the Company agreed that the amount due to Citibank
as of July 9, 2009 (Settlement Date) was $1.6 million (Settlement Amount). The Company further
agreed that interest on the Settlement Amount will accrue at a default rate from and including the
Settlement Date until such date that the Settlement Amount is paid in full. See Note 8,
Interest
Rate Swap Agreements,
for additional details regarding the interest rate swap agreements.
Ambulatory Surgical Center Disposals
Subsequent to June 30, 2009, the Company divested one majority-owned and two minority-owned
ambulatory surgical centers (ASCs) for a combined sale price of $2.4 million. The historical
results of operations for these ASCs are included in the other segment of the Companys doctor
services business and do not qualify as held-for-sale as of June 30, 2009.
Amendment No. 2 to the TruVision Agreement and Plan of Merger
On August 10, 2009, the Company entered into Amendment No. 2 (Amendment) to the 2005
TruVision Agreement and Plan of Merger. The Amendment restructured the Companys final $4.0
million purchase price installment, which was due to the former TruVision owners during August
2009. The Amendment resulted in the final purchase price installment being increased to $5.4
million, inclusive of interest and penalties, which will be made through quarterly payments of
approximately $0.3 million beginning on August 10, 2009 and extending through April 5, 2014. The
amount owed is not represented by a promissory note, is not secured and will not accrue interest on
a going forward basis.
ITEM 2.
MANAGEMENTS DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS
This Quarterly Report on Form 10-Q (together with all amendments, exhibits and schedules hereto,
referred to as the Form 10-Q) contains certain forward-looking statements within the meaning of
Section 27A of the Securities Act of 1933 and Section 21E of the Securities Exchange Act of 1934,
which statements can be identified by the use of forward looking terminology, such as may,
will, expect, believes, could, might, anticipate, estimate, plans, intends or
continue or the negative thereof or other variations thereon or comparable terminology. The
Companys actual results could differ materially from those anticipated in these forward-looking
statements as a result of certain factors, including but not limited to those set forth elsewhere
in this Form 10-Q in the section entitled Managements Discussion and Analysis of Financial
Condition and Results of Operations and in the Companys Annual Report on Form 10-K for the year
ended December 31, 2008. Unless the context indicates or requires otherwise, references in this
Form 10-Q to the Company or TLC
Vision
shall mean TLC Vision Corporation and its subsidiaries.
References to $ or dollars shall mean U.S. dollars unless otherwise indicated. References to
C$ shall mean Canadian dollars. References to the Commission shall mean the U.S. Securities and
Exchange Commission.
OVERVIEW
TLC Vision Corporation is an eye care services company dedicated to improving lives through
improved vision by providing high-quality care directly to patients and as a partner with their
doctors and facilities. A significant portion of the Companys revenues come from owning and
operating refractive centers that employ laser technologies to treat common refractive vision
disorders such as myopia (nearsightedness), hyperopia (farsightedness) and astigmatism. Refractive
centers, which is a reportable segment, includes the Companys 71 centers that provide corrective
laser surgery, of which 63 are majority owned and 8 centers are minority owned. In its doctor
services businesses, the Company furnishes doctors and medical facilities with mobile or fixed
site access
18
to refractive and cataract surgery equipment, supplies, technicians and diagnostic products,
as well as owns and manages single-specialty ambulatory surgery centers. In its eye care business,
the Company provides franchise opportunities to independent optometrists under its Vision Source
®
brand.
The Company serves surgeons who performed approximately 107,000 and 136,000 procedures,
including refractive and cataract procedures, at the Companys centers or using the Companys
equipment during each of the six months ended June 30, 2009 and 2008, respectively. Being an
elective procedure, laser vision correction volumes fluctuate due to changes in economic
conditions, unemployment rates, consumer confidence and political uncertainty. Demand for laser
vision correction also is affected by perceived safety and effectiveness concerns given the lack of
long-term follow-up data. For additional information regarding the Companys decline in procedure
volume and the direct impact of such decline on the Companys liquidity, refer to the section
Recent Developments Liquidity,
below.
RECENT DEVELOPMENTS
Amendment to the Credit Facility
On August 3, 2009, the Company announced that it had obtained from its lenders a limited
waiver and amendment to the Credit Facility (the Limited Waiver and Amendment No. 4). See Note
2,
Liquidity,
to the unaudited interim consolidated financial statements and Managements
Discussion and Analysis of Financial Condition and Results of Operations
Liquidity and Capital
Resources Credit Facility
for additional details regarding the Limited Waiver and Amendment No.
4.
Investments
During 2005, the Company acquired a substantial portion of the assets of Kremer Laser Eye
(Kremer). As of June 30, 2009, Kremer operates three refractive centers, which the Company has an
approximate 84% ownership interest, and one ambulatory surgery center, which the Company has a 70%
ownership interest. As part of a transfer rights agreement entered on the acquisition date between
the Company and the non-controlling holders of Kremer, the non-controlling holders retain options
that could require the Company to purchase the remaining non-controlling interest. The first option
can be exercised during July 2009 with all remaining options being exercisable during July 2010 and
2012.
During July 2009, the Company received formal notification from the minority holders of Kremer
of their intent to exercise the first option. The option, if exercised, would transfer a portion of
the remaining non-controlling interest of Kremer to TLC
Vision
in exchange for approximately $1.9
million due August 2009. If the Company fails to make such payment all remaining options could
become exercisable on an accelerated basis. The Company is currently in discussion with the
non-controlling interest holders of Kremer to amend the terms of the transfer rights agreement.
Interest Rate Swap Agreements
Effective July 9, 2009, Citibank and the Company agreed to the early termination of the
interest rate swap agreements entered August and December 2007. In consideration for Citibanks
agreement to terminate the interest rate swaps, the Company agreed that the amount due to Citibank
as of July 9, 2009 (Settlement Date) was $1.6 million (Settlement Amount). The Company further
agreed that interest on the Settlement Amount will accrue at a default rate from and including the
Settlement Date until such date that the Settlement Amount is paid in full. See Note 8,
Interest
Rate Swap Agreements
, to the unaudited interim consolidated financial statements for additional
details regarding the interest rate swap agreements.
Ambulatory Surgical Center Disposals
Subsequent to June 30, 2009, the Company divested one majority-owned and two minority-owned
ambulatory surgical centers (ASCs) for a combined sale price of $2.4 million. The historical
results of operations for these ASCs are included in the other segment of the Companys doctor
services business and do not qualify as held-for-sale as of June 30, 2009.
19
Amendment No. 2 to the TruVision Agreement and Plan of Merger
On August 10, 2009, the Company entered into Amendment No. 2 (Amendment) to the 2005
TruVision Agreement and Plan of Merger. The Amendment restructured the Companys final $4.0
million purchase price installment, which was due to the former TruVision owners during August
2009. The Amendment resulted in the final purchase price installment being increased to $5.4
million, inclusive of interest and penalties, which will be made through quarterly payments of
approximately $0.3 million beginning on August 10, 2009 and extending through April 5, 2014. The
amount owed is not represented by a promissory note, is not secured and will not accrue interest on
a going forward basis.
RESULTS OF OPERATIONS
The following table sets forth certain center and procedure operating data for the periods
presented:
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THREE MONTHS ENDED
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SIX MONTHS ENDED
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JUNE 30,
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JUNE 30,
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2009
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2008
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2009
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2008
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OPERATING DATA (unaudited)
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Number of majority-owned eye care centers at end of period
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63
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68
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63
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68
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Number of minority-owned eye care centers at end of period
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8
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11
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8
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11
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Number of TLC
Vision
branded eye care centers at end of period
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71
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79
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71
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79
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Number of laser vision correction procedures:
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Majority-owned centers
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16,000
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22,600
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37,400
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57,200
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Minority-owned centers
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3,500
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4,500
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7,700
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10,500
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Total TLC
Vision
branded center procedures
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19,500
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27,100
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45,100
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67,700
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Total access procedures
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8,800
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11,700
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19,800
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27,900
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Total laser vision correction procedures
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28,300
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38,800
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64,900
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95,600
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THREE MONTHS ENDED JUNE 30, 2009 COMPARED TO THE THREE MONTHS ENDED JUNE 30, 2008
Total revenues for the three months ended June 30, 2009 were $58.5 million, a decrease of
$15.6 million (21%) from revenues of $74.1 million for the three months ended June 30, 2008. The
decrease in revenue was primarily attributable to the decline in refractive centers and refractive
access procedures, partially offset by higher cataract volume.
Revenues from refractive centers for the three months ended June 30, 2009 were $26.9
million, a decrease of $12.2 million (31%) from revenues of $39.1 million for the three months
ended June 30, 2008. The decrease in revenues from centers resulted primarily from lower center
procedure volume, which accounted for a decrease in revenues of approximately $11.0 million. The
remaining revenue decline of $1.2 million was the result of decreased revenue per procedure. For
the three months ended June 30, 2009, majority-owned center procedures were approximately
16,000, a decrease of 6,600 from 22,600 procedures for the three months ended June 30, 2008. The
procedure decline was attributable to the weakened U.S. economy, which has negatively impacted
consumer discretionary spending.
Revenues from doctor services for the three months ended June 30, 2009 were $24.5 million,
a decrease of $1.0 million (4%) from revenues of $25.5 million for the three months ended June
30, 2008. The revenue decrease from doctor services was due principally to procedure shortfalls
in refractive access, partially offset by increases in the Companys mobile cataract and other
segments.
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Revenues from the Companys mobile cataract segment for the three months ended June
30, 2009 were $11.3 million, an increase of $0.1 million (1%) from revenues of $11.2
million for the three months ended June 30, 2008. The increase in mobile cataract
revenues was due to increased surgical procedure volume of 5% and a higher surgical
average sales price of 3%, partially offset by a 49% decline in PHP Foresee unit volume
as the weakened U.S. economy continues to limit consumer spending.
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20
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Revenues from the refractive access services segment for the three months ended June
30, 2009 were $6.0 million, a decrease of $1.7 million (22%) from revenues of $7.7
million for the three months ended June 30, 2008. For the three months ended June 30,
2009, excimer procedures declined by 2,900 (25%) from the prior year period on lower
customer demand, which accounted for a decrease in revenues of approximately $1.9
million. This decrease was partially offset by a higher average sales price of 4%,
which increased revenues by approximately $0.2 million, primarily caused by a 7%
increase in higher priced Intralase procedures.
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Revenues from the Companys businesses that manage cataract and secondary care
centers for the three months ended June 30, 2009 were $7.2 million, an increase of $0.5
million (8%) from revenues of $6.7 million for the three months ended June 30, 2008.
The increase was primarily driven by an 11% increase in majority-owned procedures
primarily led by cataract growth.
|
Revenues from eye care for the three months ended June 30, 2009 were $7.0 million, a
decrease of $2.5 million (26%) from revenues of $9.5 million for the three months ended June 30,
2008. This decrease was due to the timing of the Vision Source
®
National Conference, which is an
annual optometric conference hosted by the Companys Vision Source
®
subsidiary. The 2009 Vision
Source
®
National Conference was hosted during the three months ended March 31, 2009, whereas the
2008 conference did not take place until the three month period ended June 30, 2008. Offsetting
this decline was an increase in revenues attributable to a 12% year-over-year increase in
optometric franchisee locations.
Total cost of revenues (excluding amortization expense for all segments) for the three months
ended June 30, 2009 was $42.5 million, a decrease of $10.3 million (19%) from the cost of revenues
of $52.8 million for the three months ended June 30, 2008.
The cost of revenues from refractive centers for the three months ended June 30, 2009 was
$21.6 million, a decrease of $7.8 million (27%) from cost of revenues of $29.4 million for the
three months ended June 30, 2008. This decrease was attributable to a $4.0 million cost of
revenue decline related to lower procedure volume, $3.7 million in fixed cost reductions and
$0.1 million in decreased variable costs per procedure. Gross margins for centers was 19.9%
during the three months ended June 30, 2009, down from prior year gross margin of 24.7% as the
Companys cost saving initiatives could not outweigh the revenue decline caused by the
refractive center procedure decline.
The cost of revenues from doctor services for the three months ended June 30, 2009 was
$17.8 million, a decrease of $0.9 million (5%) from cost of revenues of $18.7 million for the
three months ended June 30, 2008. Gross margins increased to 27.5% during the three months ended
June 30, 2009 from 26.8% in the prior year period. The decrease in cost of revenues was due to
the following:
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The cost of revenues from the Companys mobile cataract segment for the three months
ended June 30, 2009 was $8.1 million, an increase of $0.1 million (1%) from cost of
revenues of $8.0 million for the three months ended June 30, 2008. This increase was
primarily due to higher cataract procedure volume and higher lens supply costs,
partially offset by lower PHP Foresee unit volume.
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The cost of revenues from the refractive access segment for the three months ended
June 30, 2009 was $4.9 million, a decrease of $1.5 million (24%) from cost of revenues
of $6.4 million for the three months ended June 30, 2008. This decrease was primarily
attributable to $1.6 million of lower costs associated with decreased excimer
procedures, partially offset by an increase in cost of revenues of $0.1 million
primarily associated with higher cost procedures and the mobile Intralase offering.
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The cost of revenues from the Companys businesses that manage cataract and
secondary care centers for the three months ended June 30, 2009 was $4.8 million, an
increase of $0.5 million (12%) from cost of revenues of $4.3 million for the three
months ended June 30, 2008. The increase was caused primarily by the increase in
procedures and higher per procedure cataract lens cost.
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The cost of revenues from eye care for the three months ended June 30, 2009 was $3.2
million, a decrease of $1.5 million (33%) from cost of revenues of $4.7 million for the three
months ended June 30, 2008. This
21
decrease was due to the timing of the Vision Source
®
National Conference, as noted earlier.
Partially offsetting the decrease due to the National Conference, was an increase in cost of
revenues due to the 12% increase in optometric franchisee locations, which required additional
operating costs to manage. Gross margins increased to 55.1% during the three months ended June
30, 2009 from 50.1% in the prior year period.
General and administrative expenses of $6.4 million for the three months ended June 30, 2009
decreased $0.6 million from $7.0 million for the three months ended June 30, 2008. The decrease was
primarily related to lower employee related expenses and discretionary spending, partially offset
by an unfavorable change in foreign exchange expense related to the Companys Canadian operations.
Marketing expenses decreased to $5.5 million for the three months ended June 30, 2009 from
$10.2 million for the three months ended June 30, 2008. The $4.7 million decrease was due to a $4.3
million (59%) reduction in refractive center marketing spend, specifically related to external
advertising and direct to consumer marketing, in order to reduce costs during the economic
downturn.
Other operating expenses increased to $5.6 million for the three months ended June 30, 2009
from other operating income of $0.4 million for the three months ended June 30, 2008. The $6.0
million unfavorable change was primarily related to center closing costs of $0.4 million, employee
severance expense of $2.3 million and $2.9 million of financial and legal advisor expenses incurred
during the three months ended June 30, 2009.
Interest expense increased to $2.5 million for the three months ended June 30, 2009 from $2.4
million for the three months ended June 30, 2008. This $0.1 million increase was primarily due to
higher borrowings under the Credit Facility. The average interest rate for the three months ended
June 30, 2009 and 2008 was approximately 8.0% and 9.3%, respectively, which includes the impact of
deferred loan costs and other fees.
Earnings from equity investments were $0.4 million for the three months ended June 30, 2009
compared to losses of ($0.3) million for the three months ended June 30, 2008. The losses during
the three months ended June 30, 2008 were primarily caused by equity losses generated in the
Companys Laser Eye Centers of California (LECC) investment. Under the equity method of
accounting, such losses did not recur during the three months ended June 30, 2009 as the investment
balance in LECC was reduced to zero due to the cumulative effect of historical losses incurred.
For the three months ended June 30, 2009, the Company recognized income tax expense of $0.3
million, which was determined using an estimate of the Companys 2009 total annual tax expense
based on the forecasted taxable income for the full year. For the three months ended June 30, 2008,
the Company recognized income tax expense of $0.3 million.
Net income attributable to noncontrolling interest decreased to $2.4 million for the three
months ended June 30, 2009 from $3.1 million for the three months ended June 30, 2008 primarily due
to lower profits in non-wholly owned entities, more specifically in the Companys eye care segment
due to the previously noted timing of the Vision Source National Conference.
Net loss attributable to TLC Vision Corporation for the three months ended June 30, 2009 was
($6.9) million, or ($0.14) per basic and diluted share, compared to ($2.2) million, or ($0.04) per
basic and diluted share, for the three months ended June 30, 2008.
SIX MONTHS ENDED JUNE 30, 2009 COMPARED TO THE SIX MONTHS ENDED JUNE 30, 2008
Total revenues for the six months ended June 30, 2009 were $127.9 million, a decrease of $36.6
million (22%) from revenues of $164.5 million for the six months ended June 30, 2008. The decrease
in revenue was primarily attributable to the decline in refractive centers and refractive access
procedures, partially offset by higher cataract volume and growth in eye care.
Revenues from refractive centers for the six months ended June 30, 2009 were $62.9 million,
a decrease of $35.1 million (36%) from revenues of $98.0 million for the six months ended June
30, 2008. The decrease in revenues from refractive centers resulted primarily from lower center
procedure volume, which accounted for a decrease in revenues of approximately $32.8 million. The
remaining revenue decline of $2.3 million was the result of decreased revenue per procedure. For
the six months ended June 30, 2009, majority-owned center
22
procedures were approximately 37,400, a decrease of 19,800 from 57,200 procedures for the
six months ended June 30, 2008. The procedure decline was attributable to the weakened U.S.
economy, which has negatively impacted consumer discretionary spending, and the closure of three
underperforming centers since December 31, 2008.
Revenues from doctor services for the six months ended June 30, 2009 were $48.0 million, a
decrease of $2.6 million (5%) from revenues of $50.6 million for the six months ended June 30,
2008. The revenue decrease from doctor services was due principally to procedure shortfalls in
refractive access, partially offset by increases in the Companys mobile cataract and other
segments.
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Revenues from the Companys mobile cataract segment for the six months ended June
30, 2009 were $20.8 million, an increase of $0.4 million (2%) from revenues of $20.4
million for the six months ended June 30, 2008. The increase in mobile cataract
revenues was due to increased surgical procedure volume of 3% and a slightly higher
surgical average sales price of 4%, partially offset by 40% decline in PHP Foresee unit
volume as the weakened U.S. economy continues to limit consumer spending.
|
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|
|
Revenues from the refractive access services segment for the six months ended June
30, 2009 were $13.5 million, a decrease of $4.5 million (25%) from revenues of $18.0
million for the six months ended June 30, 2008. For the six months ended June 30, 2009,
excimer procedures declined by 8,100 (29%) from the prior year period on lower customer
demand, which accounted for a decrease in revenues of approximately $5.2 million. This
decrease was partially offset by a higher average sales price of 6%, which increased
revenues by approximately $0.7 million, primarily caused by a 15% increase in higher
priced Intralase procedures.
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|
|
Revenues from the Companys businesses that manage cataract and secondary care
centers for the six months ended June 30, 2009 were $13.7 million, an increase of $1.4
million (12%) from revenues of $12.3 million for the six months ended June 30, 2008.
The increase was primarily driven by an 13% increase in majority-owned procedures
primarily led by cataract growth.
|
Revenues from eye care for the six months ended June 30, 2009 were $16.9 million, an
increase of $1.1 million (7%) from revenues of $15.8 million for the six months ended June 30,
2008. This increase was due to a 12% year-over-year increase in optometric franchisee locations.
Total cost of revenues (excluding amortization expense for all segments) for the six months
ended June 30, 2009 was $91.6 million, a decrease of $19.5 million (18%) from the cost of revenues
of $111.1 million for the six months ended June 30, 2008.
The cost of revenues from refractive centers for the six months ended June 30, 2009 was
$47.6 million, a decrease of $19.2 million (29%) from cost of revenues of $66.8 million for the
six months ended June 30, 2008. This decrease was attributable to a $11.5 million cost of
revenue decline related to lower procedure volume and $8.0 million in fixed cost reductions,
partially offset by $0.3 million in increased variable costs per procedure. Gross margins for
centers was 24.3% during the six months ended June 30, 2009, down from prior year gross margin
of 31.9% as the Companys cost saving initiatives could not outweigh the revenue decline caused
by the refractive center procedure decline.
The cost of revenues from doctor services for the six months ended June 30, 2009 was $36.1
million, a decrease of $0.7 million (2%) from cost of revenues of $36.8 million for the six
months ended June 30, 2008. Gross margins decreased to 24.9% during the six months ended June
30, 2009 from 27.2% in the prior year period. The decrease in cost of revenues was due to the
following:
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|
The cost of revenues from the Companys mobile cataract segment for the six months
ended June 30, 2009 was $15.4 million, an increase of $0.5 million (3%) from cost of
revenues of $14.9 million for the six months ended June 30, 2008. This increase was
primarily due to higher cataract procedure volume and higher lens supply costs,
partially offset by lower PHP Foresee unit volume.
|
23
|
|
|
The cost of revenues from the refractive access segment for the six months ended
June 30, 2009 was $11.2 million, a decrease of $2.5 million (19%) from cost of revenues
of $13.7 million for the six
months ended June 30, 2008. This decrease was primarily attributable to $4.0 million of
lower costs associated with decreased excimer procedures, partially offset by an
increase in cost of revenues of $1.5 million primarily associated with higher cost
procedures and the mobile Intralase offering.
|
|
|
|
|
The cost of revenues from the Companys businesses that manage cataract and
secondary care centers for the six months ended June 30, 2009 was $9.6 million, an
increase of $1.4 million (17%) from cost of revenues of $8.2 million for the six months
ended June 30, 2008. The increase was caused primarily by the increase in cataract
procedures and higher per procedure cataract lens cost.
|
Cost of revenues from eye care for the six months ended June 30, 2009 were $7.9 million, an
increase of $0.4 million (5%) from cost of revenues of $7.5 million for the six months ended
June 30, 2008. This increase was due to additional costs associated with the 2009 Vision Source
®
National Conference due to higher attendance and a year-over-year increase in optometric
franchisee locations requiring additional cost to support.
General and administrative expenses of $12.3 million for the six months ended June 30, 2009
decreased $3.1 million from $15.4 million for the six months ended June 30, 2008. The decrease was
primarily related to lower employee related expenses, professional fees and discretionary spending,
partially offset by an unfavorable change in foreign exchange expense related to the Companys
Canadian operations.
Marketing expenses decreased to $12.3 million for the six months ended June 30, 2009 from
$21.9 million for the six months ended June 30, 2008. The $9.6 million decrease was due to a $9.1
million (57%) reduction in refractive center marketing spend, specifically related to external
advertising and direct to consumer marketing, in order to reduce costs during the economic
downturn.
Other operating expenses increased to $8.2 million for the six months ended June 30, 2009 from
other operating income of $0.6 million for the six months ended June 30, 2008. The $8.8 million
unfavorable change was primarily related to center closing costs of $0.7 million, employee
severance expense of $2.5 million and $5.0 million of financial and legal advisor expenses incurred
during the six months ended June 30, 2009.
Interest expense increased to $5.6 million for the six months ended June 30, 2009 from $4.9
million for the six months ended June 30, 2008. This $0.7 million increase was primarily due to
higher borrowings under the Credit Facility. The average interest rate for the six months ended
June 30, 2009 and 2008 was approximately 9.0% and 9.2%, respectively, which includes the impact of
deferred loan costs and other fees.
Earnings from equity investments were $0.8 million for the six months ended June 30, 2009
compared to losses of ($0.1) million for the six months ended June 30, 2008. The losses during the
six months ended June 30, 2008 were primarily caused by equity losses generated in the Companys
Laser Eye Centers of California (LECC) investment. Under the equity method of accounting, such
losses did not recur during the six months ended June 30, 2009 as the investment balance in LECC
was reduced to zero due to the cumulative effect of historical losses incurred.
For the six months ended June 30, 2009, the Company recognized income tax expense of $0.5
million, which was determined using an estimate of the Companys 2009 total annual tax expense
based on the forecasted taxable income for the full year. For the six months ended June 30, 2008,
the Company recognized income tax expense of $0.7 million.
Net income attributable to noncontrolling interest decreased to $5.4 million for the six
months ended June 30, 2009 from $5.9 million for the six months ended June 30, 2008 primarily due
to lower profits in non-wholly owned entities, more specifically in the Companys less than
majority-owned refractive centers.
Net loss attributable to TLC Vision Corporation for the six months ended June 30, 2009 was
($8.2) million, or ($0.16) per basic and diluted share, compared to net income of $3.9 million, or
$0.08 per basic and diluted share, for the six months ended June 30, 2008.
24
LIQUIDITY AND CAPITAL RESOURCES
Liquidity
The Company relies on the following sources of liquidity to continue to operate as a going
concern: (i) cash and cash equivalents on hand; (ii) cash generated from operations; (iii)
borrowings under the Companys revolving credit facility; (iv) net proceeds from asset sales; and
(v) access to the capital markets. The Companys principal uses of cash are to provide working
capital to fund its operation and to service its debt and other contractual obligations. The
changes in financial markets during 2008 limited the ability of companies such as TLC
Vision
to
access the capital markets. The economic recession in the United States continues to impact the
Companys operations, resulting in a decline in the demand for refractive surgery and financial
performance. The Company incurred losses attributable to TLC Vision Corporation of $8.2 million for
the six months ended June 30, 2009 compared to earnings of $3.9 million for the six months ended
June 30, 2008. As a result, the Companys liquidity continued to be constrained during 2009.
Beginning in early 2008, in response to the deteriorating economic environment, the Company
implemented a series of initiatives to reduce its costs of operation to levels commensurate with
the new lower level of refractive procedures. The Company continues to evaluate and implement cost
reduction and cash generation initiatives, including the sale of surplus assets and the closure of
underperforming refractive centers/mobile refractive routes. During the six months ended June 30,
2009, the Company closed three majority owned refractive centers, which performed approximately 400
and 800 refractive procedures during the six months ended June 30, 2009 and 2008, respectively.
Due to the decline in customer demand during the previous twelve months, and the resulting
decline in sales, the Companys deteriorating financial performance resulted in the Companys
inability to comply with its primary financial covenants under its Credit Facility as of December
31, 2008, March 31, 2009 and June 30, 2009.
As of June 30, 2009, the Company failed to make various mandatory payments under its Credit
Facility and related amendments. Such payments included interest on the term and revolving credit
advances of $0.2 million and principal payments on term advances of $0.2 million. As a result of
these and certain other defaults under the Credit Facility, the Company and its lenders entered
into a Limited Waiver, Consent and Amendment No. 3 to Credit Agreement, dated June 5, 2009 (the
Limited Waiver, Consent and Amendment No. 3) and the Limited Waiver and Amendment No. 4. See Note
2,
Liquidity
, to the unaudited interim consolidated financial statements and Managements
Discussion and Analysis of Financial Condition and Results of Operations
Liquidity and Capital
Resources Credit Facility
for additional details regarding the Limited Waiver, Consent and
Amendment No. 3 and the Limited Waiver and Amendment No. 4.
Given that it is unlikely that the Company will be in compliance with the covenants currently
in the Credit Facility for the balance of 2009 beyond the current waiver period unless amended, all
term borrowings aggregating $76.7 million under the Credit Facility have been recorded as current
liabilities as of June 30, 2009 and December 31, 2008. Accordingly, at June 30, 2009 and December
31, 2008, the Company has working capital deficiencies of approximately $103.1 million and $99.5
million, respectively. The Company borrowed an additional $17.4 million under the revolving portion
of its Credit Facility during the six months ended June 30, 2009, which reduced the open
availability under the Credit Facility to approximately $0.5 million at June 30, 2009.
The Company will likely continue to incur narrow operating losses in 2009, and its liquidity
will likely remain constrained such that it may not be sufficient to meet the Companys cash
operating needs in this period of economic uncertainty. The Company is in active discussions with
its lenders to ensure that it has sufficient liquidity in excess of what is available under its
Credit Facility, although there is no assurance that the Company can obtain additional liquidity on
commercially reasonable terms, if at all. If the Company is unable to obtain or sustain the
liquidity required to operate its business the Company may need to seek to modify the terms of its
debts and/or to reorganize its capital structure. There can be no assurances that the lenders will
grant such restructuring, waivers or amendments on commercially reasonable terms, if at all. If the
Company is unable to obtain or sustain the liquidity required to operate its business, the Company
may need to seek to modify the terms of its debts through court reorganization proceedings to allow
it, among other things, to reorganize its capital structure.
25
The Companys independent registered public accounting firms report issued in the December
31, 2008 Annual Report on Form 10-K included an explanatory paragraph describing the existence of
conditions that raise substantial doubt about the Companys ability to continue as a going concern,
including significant losses, limited access to additional liquidity and compliance with certain
financial covenants. The financial statements do not include any adjustments relating to the
recoverability and classification of asset carrying amounts or the amount and classification of
liabilities that may result should the Company be unable to continue as a going concern.
Credit Facility
The Company obtained a $110.0 million credit facility (Credit Facility) during June 2007,
which is secured by substantially all of the assets of the Company and consisting of both senior
term debt and a revolver as follows:
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Senior term debt, totaling $85.0 million, with a six-year term and required amortization
payments of 1% per annum plus a percentage of excess cash flow (as defined in the
agreement) and sales of assets or borrowings outside of the normal course of business. As
of June 30, 2009, $76.7 million was outstanding on this portion of the facility.
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A revolving credit facility, totaling $25.0 million with a five-year term. As of June
30, 2009, the Company had $23.4 million outstanding under this portion of the facility and
outstanding letters of credit totaling approximately $1.1 million. Accordingly,
availability under the revolving credit facility is $0.5 million at June 30, 2009.
|
Interest on the facility is calculated based on either prime rate or the London Interbank
Offered Rate (LIBOR) plus a margin, which at June 30, 2009 was 4.00% for prime rate borrowings and
5.00% for LIBOR borrowings. In addition, the Company pays an annual commitment fee equal to 0.35%
on the undrawn portion of the revolving credit facility.
As a result of certain events of default and the June 30, 2009 expiration of the Limited
Waiver, Consent and Amendment No. 3 to Credit Agreement, as described in further detail below, the
LIBOR advances with interest periods ending on or after June 30, 2009 automatically converted to
prime rate advances at the end of such interest periods.
The Credit Facility also requires the Company to maintain various financial and non-financial
covenants as defined in the Credit Agreement. As of December 31, 2008, March 31, 2009 and June 30,
2009, the Company was unable to satisfy various financial covenants.
On June 8, 2009, the Company announced that it obtained from its lenders a Limited Waiver,
Consent and Amendment No. 3 to Credit Agreement, dated June 5, 2009 and continuing through June 30,
2009. The Limited Waiver, Consent and Amendment No. 3 provided, among other things, a limited
waiver expiring June 30, 2009 of certain defaults, amended certain terms of the Credit Agreement,
consented to the dissolution of several inactive subsidiaries, provided for the payment by the
Company of certain fees and expenses incurred by the lenders, delayed mandatory payment of $1.4
million of principal arising from a tax refund, and released any claims the Company may have had
against the lenders.
As of June 30, 2009, the Company failed to make various mandatory payments under its Credit
Facility and related amendments. Such payments included interest on the term and revolving credit
advances of $0.2 million and principal payments on term advances of $0.2 million.
On August 3, 2009, the Company announced that it obtained from its lenders a Limited Waiver
and Amendment No. 4 to Credit Agreement, dated June 30, 2009. The Limited Waiver and Amendment No.
4, among other things, provides a limited waiver through September 9, 2009 of certain defaults and
provides that lenders will, until September 9, 2009, forbear from exercising their rights arising
out of the non-payment of certain principal, interest and other payments previously due. The
amendment also amends certain terms of the Credit Agreement, provides for the accrual of default
interest at an additional 2% per annum over otherwise applicable rates and releases any claims the
Company may have had against the lenders.
26
CASH PROVIDED BY OPERATING ACTIVITIES
Net cash provided by operating activities was $4.5 million for the six months ended June 30,
2009. The cash flows provided by operating activities during the six months ended June 30, 2009
were primarily comprised of the $2.8 million net loss plus non-cash items including depreciation
and amortization of $8.0 million.
CASH USED IN INVESTING ACTIVITIES
Net cash used in investing activities was $4.1 million for the six months ended June 30, 2009.
The cash used in investing activities included capital expenditures of $0.8 million and
acquisitions and investments of $4.8 million. These cash outflows were partially offset by $1.1
million of distributions and loan payments received from equity investments and proceeds from the
sales of fixed assets of $0.2 million.
CASH PROVIDED BY FINANCING ACTIVITIES
Net cash provided by financing activities was $9.2 million for the six months ended June 30,
2009. Net cash provided during this period was primarily related to proceeds from debt financing of
$18.0 million, principally due to Company borrowing against its revolving credit facility.
Partially offsetting the cash provided by financing activities were cash outflows due to restricted
cash movement of $0.9 million, principal payments of debt of $2.9 million and distributions to
noncontrolling interests of $4.9 million.
|
|
|
ITEM 3.
|
|
QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK
|
Investments
The Company has invested in various companies, some of which are in development stages. The
investments in development stage companies are inherently risky because the markets for the
technologies or products these companies are developing are typically in the early stages and may
never materialize. The Company could lose its various investments in development stage companies.
As of June 30, 2009 and December 31, 2008, the Company had investments and other long-term assets
of $4.3 million in development stage companies.
Interest Rate Risk
The Company does not enter into financial instruments for trading or speculative purposes. As
required under the Companys Credit Facility, during August and December 2007 the Company entered
into interest rate swap agreements to eliminate the variability of cash required for interest
payments for a majority of the total variable rate debt. Under the agreement entered during August
2007, the Company receives a floating rate based on the LIBOR interest rate and pays a fixed rate
of 5.0% on notional amounts ranging from $20 million to $42 million over the life of the swap
agreement, which matures on April 1, 2010. Under the agreement entered during December 2007, with
an effective date of January 2, 2008, the Company receives a floating rate based on the LIBOR
interest rate and pays a fixed rate of 3.9% on notional amounts ranging from $20 million to $32
million over the life of the swap agreement, which matures on April 1, 2010.
As of June 30, 2009 and December 31, 2008, the outstanding notional amounts of the interest
rate swaps were $52 million and $59 million, respectively, and the Company has recorded gross
liabilities of $1.6 million and $1.5 million, respectively, to recognize the fair value of the
interest derivatives. By using derivative instruments to hedge exposure to changes in interest
rates, the Company exposes itself to credit risk, or the failure of one party to perform under the
terms of the derivative contract. As of June 30, 2009, the Company recorded an offset to its
interest rate swap liability of $0.4 million to account for its credit risk. The net offset is
recorded in accumulated other comprehensive income, as the instruments have been designated as
qualifying cash flow hedges.
Effective July 9, 2009, Citibank and the Company agreed to the early termination of the
interest rate swap agreements entered August and December 2007. In consideration for Citibanks
agreement to terminate the interest rate swaps, the Company agreed that the amount due to Citibank
as of July 9, 2009 (Settlement Date) was $1.6 million (Settlement Amount). The Company further
agreed that interest on the Settlement Amount will accrue at a default rate from and including the
Settlement Date until such date that the Settlement Amount is paid in full. See
27
Note 8,
Interest Rate Swap Agreements,
to the unaudited interim consolidated financial
statements for additional details regarding the interest rate swap agreements.
Foreign Currency Risk
The Companys net assets, net earnings and cash flows from its Canadian subsidiaries are based
on the U.S. dollar equivalent of such amounts measured in the Canadian dollar functional currency.
Assets and liabilities of the Canadian operations are translated to U.S. dollars using the
applicable exchange rate as of the end of a reporting period. Revenues, expenses and cash flow are
translated using the average exchange rate during the reporting period.
|
|
|
ITEM 4.
|
|
CONTROLS AND PROCEDURES
|
The Company maintains disclosure controls and procedures that are designed to ensure that
information required to be disclosed in the Companys reports under the Securities Exchange Act of
1934, as amended (the Exchange Act), is recorded, processed, summarized and reported within the
time periods specified in the Securities and Exchange Commissions rules and forms, and that such
information is accumulated and communicated to the Companys management, including its Principal
Executive Officers and Principal Financial Officer, as appropriate, to allow timely decisions
regarding required disclosure. In designing and evaluating the disclosure controls and procedures,
management recognizes that any controls and procedures, no matter how well designed and operated,
can provide only reasonable assurance of achieving the desired control objectives, and management
necessarily is required to apply its judgment in evaluating the cost-benefit relationship of
possible controls and procedures.
As of the end of the period covered by this Form 10-Q, the Company carried out an evaluation,
under the supervision and with the participation of the Companys management, including the
Companys Principal Executive Officers and Principal Financial Officer, of the effectiveness of the
design and operation of the Companys disclosure controls and procedures (as defined in Rules
13a-15(e) and 15d-15(e) of the Exchange Act). Based on that evaluation, the Companys Principal
Executive Officers and Principal Financial Officer concluded that the Companys disclosure controls
and procedures were effective, in all material respects, to ensure that information required to be
disclosed in the reports the Company files and submits under the Exchange Act is recorded,
processed, summarized and reported as and when required.
There have been no significant changes in the Companys internal control over financial
reporting during the period that have materially affected, or are reasonably likely to materially
affect, the Companys internal control over financial reporting.
28
PART II. OTHER INFORMATION
|
|
|
ITEM 1.
|
|
LEGAL PROCEEDINGS
|
There have been no material changes in legal proceedings from that reported in the Companys
Annual Report on Form 10-K for the year ended December 31, 2008.
There are no material changes to the risk factors as disclosed in the Companys Annual Report
on Form 10-K for fiscal year 2008.
|
|
|
ITEM 2.
|
|
UNREGISTERED SALES OF EQUITY SECURITIES AND USE OF PROCEEDS
|
Not applicable.
|
|
|
ITEM 3.
|
|
DEFAULTS UPON SENIOR SECURITIES
|
Not applicable.
|
|
|
ITEM 4.
|
|
SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS
|
The Companys annual meeting of shareholders was held on June 19, 2009. At the annual meeting,
shareholders of the Company voted on the following proposals: (a) to elect seven directors for the
ensuing year; (b) to approve amending and restating the TLC Vision Corporation Amended and Restated
Share Option Plan in its entirety as the TLC Vision Corporation 2009 Long-Term Incentive Plan; (c)
to approve a one-time option exchange program for employees other than directors and executive
officers; and (d) to appoint Ernst & Young LLP as auditors of the Company for the ensuing year and
to authorize the directors to fix the remuneration to be paid to the auditors.
With respect to the election of directors, all of the following directors were elected:
Michael D. DePaolis, O.D.
Jay T. Holmes
Gary F. Jonas
Olden C. Lee
Richard L. Lindstrom, M.D.
Warren S. Rustand
Toby S. Wilt
With respect to the approval amending and restating the TLC Vision Corporation Amended and Restated
Share Option Plan in its entirety as the TLC Vision Corporation 2009 Long-Term Incentive Plan, the
following votes were cast:
|
|
|
Votes in Favor
|
|
Votes Against
|
14,168,099
|
|
937,530
|
With respect to the approval of a one-time option exchange program for employees other than
directors and executive officers amending, the following votes were cast:
|
|
|
Votes in Favor
|
|
Votes Against
|
11,046,066
|
|
4,065,465
|
29
With respect to the resolution regarding appointment of Ernst & Young LLP as auditors of the
Company for the ensuing year and to authorize the directors to fix the remuneration to be paid to
the auditors, the following votes were cast:
|
|
|
Votes in Favor
|
|
Votes Against
|
34,354,173
|
|
1,433,468
|
|
|
|
ITEM 5.
|
|
OTHER INFORMATION
|
Not applicable.
|
10.1
|
|
Limited Waiver and Amendment No. 2 to Credit Agreement dated as of March 31, 2009
(incorporated by reference from TLC Vision Corporations Current Report on Form 8-K filed
with the Securities and Exchange Commission on April 3, 2009.)
|
|
|
10.2
|
|
Limited Waiver, Consent and Amendment No. 3 to Credit Agreement dated as of June 5,
2009 (incorporated by reference from TLC Vision Corporations Current Report on Form 8-K
filed with the Securities Exchange Commission on June 9, 2009.)
|
|
|
10.3
|
|
Limited Waiver, Consent and Amendment No. 4 to Credit Agreement dated as of June 30,
2009 (incorporated by reference from TLC Vision Corporations Current Report on Form 8-K
filed with the Securities Exchange Commission on August 5, 2009.)
|
|
|
10.4
|
|
Amendment No. 2, entered August 10, 2009, to Agreement and Plan of Merger, dated as of
October 27, 2005, by and among TruVision, Inc., TLC Wildcard Corp., TLC Vision Corporation,
TLC Vision (USA) Corporation and Lindsay T. Atwood.
|
|
|
31.1
|
|
Chairman of the Boards Certification required by Rule 13a-14(a) of the Securities
Exchange Act of 1934, as amended.
|
|
|
31.2
|
|
Chief Operating Officers Certification required by Rule 13a-14(a) of the Securities
Exchange Act of 1934, as amended.
|
|
|
31.3
|
|
Chief Restructuring Officers Certification required by Rule 13a-14(a) of the
Securities Exchange Act of 1934, as amended.
|
|
|
31.4
|
|
Interim Chief Financial Officers Certification required by Rule 13a-14(a) of the
Securities Exchange Act of 1934, as amended
|
|
|
32.1
|
|
Chairman of the Boards Certification of periodic financial report pursuant to Section
906 of the Sarbanes-Oxley Act of 2002, U.S.C. Section 1350.
|
|
|
32.2
|
|
Chief Operating Officers Certification of periodic financial report pursuant to
Section 906 of the Sarbanes-Oxley Act of 2002, U.S.C. Section 1350.
|
|
|
32.3
|
|
Chief Restructuring Officers Certification of periodic financial report pursuant to
Section 906 of the Sarbanes-Oxley Act of 2002, U.S.C. Section 1350.
|
|
|
32.4
|
|
Interim Chief Financial Officers Certification of periodic financial report pursuant
to Section 906 of the Sarbanes-Oxley Act of 2002, U.S.C. Section 1350.
|
30
SIGNATURES
Pursuant to the requirements of Section 13 or 15(d) 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.
|
|
|
|
|
|
TLC VISION CORPORATION
|
|
|
By:
|
/s/ Warren S. Rustand
|
|
|
|
Warren S. Rustand
|
|
|
|
Chairman of the Board
August 14, 2009
|
|
|
|
|
|
By:
|
/s/ James B. Tiffany
|
|
|
|
James B. Tiffany
|
|
|
|
Chief Operating Officer
August 14, 2009
|
|
|
|
|
|
By:
|
/s/ Michael F. Gries
|
|
|
|
Michael F. Gries
|
|
|
|
Chief Restructuring Officer
August 14, 2009
|
|
|
|
|
|
By:
|
/s/ William J. McManus
|
|
|
|
William J. McManus
|
|
|
|
Interim Chief Financial Officer
August 14, 2009
|
|
|
31
EXHIBIT INDEX
|
|
|
No.
|
|
Description
|
|
10.1
|
|
Limited Waiver and Amendment No. 2 to Credit Agreement dated as of
March 31, 2009 (incorporated by reference from TLC Vision
Corporations Current Report on Form 8-K filed with the Securities
and Exchange Commission on April 3, 2009.)
|
|
|
|
10.2
|
|
Limited Waiver, Consent and Amendment No. 3 to Credit Agreement dated
as of June 5, 2009 (incorporated by reference from TLC Vision
Corporations Current Report on Form 8-K filed with the Securities
Exchange Commission on June 9, 2009.)
|
|
|
|
10.3
|
|
Limited Waiver, Consent and Amendment No. 4 to Credit Agreement dated
as of June 30, 2009 (incorporated by reference from TLC Vision
Corporations Current Report on Form 8-K filed with the Securities
Exchange Commission on August 5, 2009.)
|
|
|
|
10.4
|
|
Amendment No. 2, entered August 10, 2009, to Agreement and Plan of
Merger, dated as of October 27, 2005, by and among TruVision, Inc.,
TLC Wildcard Corp., TLC Vision Corporation, TLC Vision (USA)
Corporation and Lindsay T. Atwood.
|
|
|
|
31.1
|
|
Chairman of the Boards Certification required by Rule 13a-14(a) of
the Securities Exchange Act of 1934, as amended.
|
|
|
|
31.2
|
|
Chief Operating Officers Certification required by Rule 13a-14(a) of
the Securities Exchange Act of 1934, as amended.
|
|
|
|
31.3
|
|
Chief Restructuring Officers Certification required by Rule
13a-14(a) of the Securities Exchange Act of 1934, as amended.
|
|
|
|
31.4
|
|
Interim Chief Financial Officers Certification required by Rule
13a-14(a) of the Securities Exchange Act of 1934, as amended.
|
|
|
|
32.1
|
|
Chairman of the Boards Certification of periodic financial report
pursuant to Section 906 of the Sarbanes-Oxley Act of 2002, U.S.C.
Section 1350.
|
|
|
|
32.2
|
|
Chief Operating Officers Certification of periodic financial report
pursuant to Section 906 of the Sarbanes-Oxley Act of 2002, U.S.C.
Section 1350
|
|
|
|
32.3
|
|
Chief Restructuring Officers Certification of periodic financial
report pursuant to Section 906 of the Sarbanes-Oxley Act of 2002,
U.S.C. Section 1350
|
|
|
|
32.4
|
|
Interim Chief Financial Officers Certification of periodic financial
report pursuant to Section 906 of the Sarbanes-Oxley Act of 2002,
U.S.C. Section 1350
|
32
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