UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-K10-K/A
(Amendment No. 1)
(Mark One)
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| x | ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 |
For the fiscal year endedDecember 31, 2014
or
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| ¨ | TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 |
For the transition period from to
Commission File Number: 001-35628
PERFORMANT FINANCIAL CORPORATION
(Exact name of registrant as specified in its charter)
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| Delaware | 20-0484934 |
(State or other jurisdiction of incorporation or organization) | (I.R.S. Employer Identification No.) |
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| 333 North Canyons Parkway, Livermore, CA | 94551 |
| (Address of principal executive offices) | (Zip Code) |
Registrant’s telephone number, including area code: (925) 960-4800
Securities registered pursuant to Section 12(b) of the Act:
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| Title of each class: | Name of each exchange on which registered: |
| Common Stock, par value $.0001 per share | NASDAQ Global Select Market |
Securities registered pursuant to Section 12(g) of the Act:
Common Stock, par value $.0001 per share
(Title of class)
Indicate by check mark if the registrant is a well-known seasoned issuer, as defined in Rule 405 of the Securities Act. Yes ¨ No x
Indicate by check mark if the registrant is not required to file reports pursuant to Section 13 or Section 15(d) of the Act. Yes ¨ No x
Indicate by check mark whether the registrant (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days. Yes x No ¨
Indicate by check mark whether the registrant has submitted electronically and posted on its corporate Web site, if any, every Interactive Data File required to be submitted and posted pursuant to Rule 405 of Regulation S-T (section 232.405 of this chapter) during the preceding 12 months (or for such shorter period that the registrant was required to submit and post such files). Yes x No ¨
Indicate by check mark if disclosure of delinquent filers pursuant to Item 405 of Regulation S-K is not contained herein, and will not be contained, to the best of registrant’s knowledge, in definitive proxy or information statements incorporated by reference in Part III of this Form 10-K or any amendment to this Form 10-K. x
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.
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| Large accelerated filer | ¨ | Accelerated filer | x |
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| Non-accelerated filer | (Do not check if a smaller reporting company) | Smaller reporting company | ¨ |
Indicate by check mark whether the registrant is a shell company (as defined in Rule 12b-2 of the Act). Yes ¨ No x
As of June 30, 2014 (the last business day of the registrant’s most recently completed second quarter), the aggregate market value of the common stock held by non-affiliates of the registrant was $297,012,377. Shares of common stock beneficially held by each officer and director and by each person who owns 10% or more of the outstanding common stock have been excluded in that such persons may be deemed to be affiliates. This determination of affiliate status is not necessarily a conclusive determination for other purposes.
As of March 12,April 24, 2015, 49,363,36649,365,581 shares of the registrant’s common stock were outstanding.
Documents Incorporated By Reference
All or a portion of Items 10 through 14 in Part III of this Form 10-K are incorporated by reference to the Registrant’s definitive proxy statement on Schedule 14A, which will be filed within 120 days after the close of the fiscal year covered by this report on Form 10-K, or if the Registrant’s Schedule 14A is not filed within such period, will be included in an amendment to this Report on Form 10-K which will be filed within such 120 day period.None.
Performant Financial Corporation (the “Company,” “we,” “us” as used herein, refers to Performant Financial Corporation and its subsidiaries, except as the context may otherwise require), is filing this Amendment No. 1 on Form 10-K/A (the “Amendment”) to amend its Annual Report on Form 10-K for the year ended December 31, 2014, filed with the Securities and Exchange Commission (the “SEC”) on March 13, 2015 (the “Original Filing”). We are amending and refiling Part III to include information required by Items 10, 11, 12, 13 and 14 because our definitive proxy statement will not be filed within 120 days after December 31, 2014, the end of Contentsthe fiscal year covered by our Annual Report on Form 10-K. Accordingly, reference to our proxy statement on the cover page has been deleted.
In addition, pursuant to the rules of the SEC, we have also included as exhibits currently dated certifications required under Section 302 of The Sarbanes-Oxley Act of 2002. We are amending and refiling Part IV solely to reflect the inclusion of those certifications. Because no financial statements are contained within this Amendment, and this Form 10-K/A does not contain or amend any disclosure with respect to Items 307 and 308 of Regulation S-K, paragraphs 3, 4 and 5 of the certifications have been omitted. We are not including certifications pursuant to Section 906 of The Sarbanes-Oxley Act of 2002.
Except as described above, no other changes have been made to the Original Filing. Except as otherwise indicated herein, this Amendment continues to speak as of the date of the Original Filing, and we have not updated the disclosures contained therein to reflect any events that occurred subsequent to the date of the Original Filing. The filing of this Annual Report on Form 10-K/A is not a representation that any statements contained in items of our Annual Report on Form 10-K other than Part III, Items 10 through 14, and Part IV are true or complete as of any date subsequent to the Original Filing.
TABLE OF CONTENTS
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| ITEM 10. | DIRECTORS, EXECUTIVE OFFICERS AND CORPORATE GOVERNANCE |
PART IDIRECTORS
Cautionary Statement Regarding Forward-Looking Information
This Annual Report on Form 10-K contains, in addition to historical information, certain forward-looking statements within the meaning of the Private Securities Litigation Reform Act of 1995. All statements other than statements of historical fact contained in this Annual Report on Form 10-K, including statements regarding our future results of operationsOur executive officers and financial position, strategydirectors, and plans,their ages and our expectations for future operations, are forward-looking statements. The words “believe,” “may,” “estimate,” “continue,” “anticipate,” “design,” “intend,” “expect” and similar expressions are intended to identify forward-looking statements. We have based these forward-looking statements largely on our current expectations and projections about future events and trends that we believe may affect our financial condition, results of operations, strategy, short-term and long-term business operations and objectives, and financial needs. Forward-looking statements include, but are not limited to, statements about:
our opportunities and expectations for growth in the student lending, healthcare and other markets;
anticipated trends and challenges in our business and competition in the markets in which we operate;
our client relationships and future growth opportunities;
the adaptability of our technology platform to new markets and processes;
our ability to invest in and utilize our data and analytics capabilities to expand our capabilities;
our growth strategy of expanding in our existing markets and considering strategic alliances or acquisitions;
our ability to meet our liquidity and working capital needs;
maintaining, protecting and enhancing our intellectual property;
our expectations regarding future expenses;
expected future financial performance; and
our ability to comply with and adapt to industry regulations and compliance demands.
These statements reflect current views with respect to future events and are based on assumptions and subject to risks and uncertainties. There are a variety of factors could cause actual results to differ materially from the anticipated results or expectations expressed in our forward-looking statements. These risks and uncertainties include, but are not limited to, those risks discussed in Item 1A of this report. Given these uncertainties, you should not place undue reliance on these forward-looking statements.
Forward-looking statements contained in this report present management’s views onlypositions as of the date of this report. We undertake no obligation to publicly update forward-looking statements, whetherApril 30, 2015, are as a result of new information, future events or otherwise. You are advised, however, to consult any further disclosures we make on related subjects in our quarterly reports on Form 10-Q and current reports on Form 8-K filed with the Securities and Exchange Commission.
ITEM 1. Business
Overview
We provide technology-enabled recovery and related analytics services in the United States. Our services help identify and recover delinquent or defaulted assets and improper payments for both government and private clients in a broad range of markets. Our clients typically operate in complex and regulated environments and outsource their recovery needs in order to reduce losses on billions of dollars of defaulted student loans, improper healthcare payments and delinquent state tax and federal treasury receivables. We generally provide our services on an outsourced basis, where we handle many or all aspects of our clients’ recovery processes.
We believe we have a leading position in our markets based on our proprietary technology-enabled services platform, long-standing client relationships and the large volume of funds we have recovered for our clients. In 2014, we provided recovery services on approximately $9.9 billion of combined student loans and other delinquent federal and state receivables and recovered approximately $244 million in improper Medicare payments. Our clients include 13 of the 30 public sector participants in the student loan industry and these relationships average more than 10 years in length, including a 25-year relationship with the Department of Education. We are currently subject to a competitive rebidding process for the next contract with the Department of Education. As of September 30, 2014, approximately $100.5 billion of government-supported student loans were in default. In the healthcare market, we are currently one of four prime Medicare Recovery Audit Contractors, or RACs, in the United States for the Centers for Medicare and Medicaid Services, or CMS, and are currently
involved in a competitive re‑bidding process for the award of the next RAC contract with CMS. According to the Government Accountability Office, Medicare paid $591.2 billion of claims in 2013, of which approximately $44 billion were estimated to be improper payments.
We utilize our technology platform to efficiently provide recovery and analytics services in the markets we serve. We have continuously developed and refined our technology platform for almost two decades by using our extensive domain and data processing expertise. Our technology platform allows us to disaggregate otherwise complex recovery processes into a series of simple, efficient and consistent component steps, which we refer to as workflows, for our recovery and healthcare claims review specialists. This approach enables us to continuously refine our recovery processes to achieve higher rates of recovery with greater efficiency. By optimizing what traditionally have been manually-intensive processes, we believe we achieve higher workforce productivity versus more traditional labor-intensive outsourcing business models. For example, we generated in excess of $130,000 of revenues per employee during 2014, based on the average number of employees during the year.
We believe that our platform is easily adaptable to new markets and processes. Over the past several years, we have successfully extended our platform into additional markets with significant recovery opportunities. For example, we utilized the same basic platform previously used primarily for student loan recovery activities to enter the healthcare market. We have enhanced our platform through investment in new data and analytics capabilities, which we believe will enable us to provide additional services such as services relating to the detection of fraud, waste and abuse.
Our revenue model is generally success-based as we earn fees based on a percentage of the aggregate amount of funds that we enable our clients to recover. Our services do not require any significant upfront investments by our clients and we offer our clients the opportunity to recover significant funds otherwise lost. Because our model is based upon the success of our efforts and the dollars we enable our clients to recover, our business objectives are aligned with those of our clients and we are generally not reliant on their spending budgets. Further, our business model does not require significant capital expenditures and we do not purchase loans or obligations.
For the year ended December 31, 2014, we generated approximately $195.4 million in revenues, $9.4 million in net income, $44.7 million in adjusted EBITDA and $15.3 million in adjusted net income. See “Managements Discussion and Analysis of Financial Condition and Results of Operations - Adjusted EBITDA and Adjusted Net Income” in Item 7 below for a definition of adjusted EBITDA and adjusted net income and reconciliations of adjusted EBITDA and adjusted net income to net income determined in accordance with generally accepted accounting principles.
We commenced our operations in 1976 under the corporate name Diversified Collection Services, Inc., or DCS. We were incorporated in Delaware on October 8, 2003 under the name DCS Holdings, Inc. and subsequently changed our name to Performant Financial Corporation. Our website address is www.performantcorp.com.
Our Markets
We operate in markets characterized by strong growth, a complex regulatory environment and a significant amount of delinquent, defaulted or improperly paid assets.
Student Lending
Government-supported student loans are authorized under Title IV of the Higher Education Act of 1965. Historically, there have been two distribution channels for student loans: (i) the Federal Direct Student Loan Program, or FDSLP, which represents loans made and managed directly by the Department of Education; and (ii) the Federal Family Education Loan Program, or FFELP, which represents loans made by private institutions and currently backed by any of the 29 Guaranty Agencies, or "GAs".
In July 2010, the government-supported student loan sector underwent a structural change with the passage of the Student Aid and Fiscal Responsibility Act, or SAFRA. This legislation transitioned all new government-supported student loan originations to the FDSLP, and away from originations made by private institutions within the FFELP that had previously utilized the GAs to guarantee, manage and service loans. The GAs are non-profit 501(c)(3) public benefit corporations operating under contract with the U.S. Secretary of Education, pursuant to the Higher Education Act of 1965, as amended, solely for the purpose of guaranteeing and managing student loans originated by lenders participating in the FFELP. Consequently, while the original distribution channels for student loans have been consolidated into one channel, the Department of Education, this does not impact the volume of government-supported student loan origination, which is a key driver of the volume of defaulted student loan inventory. In addition, despite this transition of all new loan originations to the FDSLP, GAs will continue to manage a significant amount of defaulted student loans for some period of time, due to their large
outstanding portfolios of loans originated prior to July 2010. The outstanding portfolios of defaulted FFELP loans will, therefore, require recovery for the foreseeable future.
The Department of Education estimates that the balance of defaulted loans was approximately $66.0 billion in the FDSLP and approximately $34.5 billion in the FFELP as of September 30, 2014. These programs collectively guaranteed approximately $977 billion of federal government-supported student loans according to the Congressional Budget Office as of September 30, 2013. Given the operational and logistical complexity involved in managing the recovery of defaulted student loans, the Department of Education and the GAs generally choose to outsource these services to third parties.
Healthcare
The healthcare industry represents a significant portion of the U.S. GDP. According to CMS, U.S. healthcare spending reached $2.9 trillion in 2013 and is forecast to grow at a 5.7% compound annual growth rate through 2023. In particular, CMS indicates that federal government-related healthcare spending for 2013 totaled approximately $1.0 trillion. This federal government-related spending included approximately $591.2 billion for Medicare, which provides a range of healthcare coverage primarily to elderly and disabled Americans, and $431.1 billion for Medicaid, which provides federal matching funds for states to finance healthcare for individuals at or below the public assistance level.
Medicare was initially established as part of the Social Security Act of 1965 and consists of four parts: Part A covers hospital and other inpatient stays; Part B covers hospital outpatient, physician and other services; Part C is known as Medicare Advantage, under which beneficiaries receive benefits through private health plans; and Part D is the Medicare outpatient prescription drug benefit.
Of the $591.2 billion of Medicare spending in 2013, the Department of Health and Human Services estimated that approximately $48 billion, or approximately 8.6%, was improper, and that Medicare is the federal program with the largest amount of improper payments. Medicare improper payments generally involve incorrect coding, procedures performed which were not medically necessary, and incomplete documentation or claims submitted based on outdated fee schedules, among other issues.
In accordance with the Medicare Prescription Drug, Improvement, and Modernization Act of 2003, a demonstration program was conducted from March 2005 to March 2008 in six states to determine if the RAC program could be effectively used to identify improper payments for claims paid under Medicare Part A and Part B. Due to the success of this demonstration, under The Tax Relief and Health Care Act of 2006, the U.S. Congress authorized the expansion of the RAC program nationwide. CMS relies on third-party contractors to execute the RAC program to analyze millions of Medicare claims annually for improper payments to healthcare providers. The program was implemented by designating one prime contractor in each of the four major regions in the United States: West, Midwest, South, and Northeast.
In addition to government-related healthcare spending, significant growth in spending is expected in the private healthcare market. According to CMS’ National Health Expenditures Projections, the private healthcare market accounted for approximately $961 billion in spending in 2013 and private expenditures are projected to grow more than 5.7% annually through 2023.
Other Markets
State Tax Market
As state governments struggle with revenue generation and face significant budget deficits, many states have focused on recovery of delinquent state taxes. According to the Center on Budget and Policy Priorities, an independent think tank, 31 U.S. states faced projected budget shortfalls totaling $55 billion in the year ended September 30, 2013. The economic recession beginning in 2008 led to lower income and sales taxes from both individuals and corporations, reducing overall tax revenues and leading to large budget deficits at the state government level. While many states have received federal aid, most have cut services and increased taxes to help close the budget shortfall and have evaluated outsourcing at least some aspect of delinquent tax recovery.
Federal Agency Market
The federal agency market consists of government debt subrogated to the Department of the Treasury by numerous different federal agencies, comprising a mix of commercial and individual obligations and a diverse range of receivables. These debts are managed by the Bureau of the Fiscal Service (formerly the Department of Financial Management Service), or FS, a bureau of the Department of the Treasury. Since 1996, the FS has recovered more than $63 billion in delinquent federal and state debt. For the fiscal year ended September 30, 2013, federal agency recoveries in this market totaled more than $7 billion,
an increase of more than $13 million over 2012. A significant portion of these collections are processed by private collection firms on behalf of the FS.
Our Competitive Strengths
We believe that our business is difficult to replicate, as it incorporates a combination of several important and differentiated elements, including:
Scalable and flexible technology-enabled services platform. We have built a proprietary technology platform that is highly flexible, intuitive and easy to use for our recovery and claims specialists. Our platform is easily configurable and deployable across multiple markets and processes. For example, we have successfully extended our platform from the student loan market to the state tax, federal treasury receivables and the healthcare recovery markets, each having its own industry complexities and specific regulations.
Advanced, technology-enabled workflow processes. Our technology-enabled workflow processes, developed over many years of operational experience in recovery services, disaggregate otherwise complex recovery processes into a series of simple, efficient and consistent steps that are easily configurable and applicable to different types of recovery-related applications. We believe our workflow software is highly intuitive and helps our recovery and claims specialists manage each step of the recovery process, while automating a series of otherwise manually-intensive and document-intensive steps in the recovery process. We believe our streamlined workflow technology drives higher efficiencies in our operations, as illustrated by our ability to generate in excess of $130,000 of revenues per employee during 2014, based on the average number of employees during the year. We believe our streamlined workflow technology also improves recovery results relative to more labor-intensive outsourcing models.
Strong data and analytics capabilities. Our data and analytics capabilities allow us to achieve strong recovery rates for our clients. We have collected recovery-related data for over two decades, which we combine with large volumes of client and third-party data to effectively analyze our clients’ delinquent or defaulted assets and improper payments. We have also developed a number of analytics tools that we use to score our clients’ recovery inventory, determine the optimal recovery process and allocation of resources, and achieve higher levels of recovery results for our clients. In addition, we utilize analytics tools to continuously measure and test our recovery workflow processes to drive refinements and further enhance the quality and effectiveness of our capabilities.
Long-standing client relationships. We believe our long-standing focus on achieving superior recovery performance for our clients and the significant value our clients derive from this focus have helped us achieve long-tenured client relationships, strong contract retention and better access to new clients and future growth opportunities. We have business relationships with 13 of the 30 public sector participants in the student loan market and these relationships average more than 11 years in length, including an approximate 24-year relationship with the Department of Education. In the healthcare market, we have an eight-year relationship with CMS and are currently one of four prime Medicare RAC contractors.
Extensive domain expertise in complex and regulated markets. We have extensive experience and domain expertise in providing recovery services for government and private institutions that generally operate in complex and regulated markets. We have demonstrated our ability to develop domain expertise in new markets such as healthcare and state tax and federal Treasury receivables. We believe we have the necessary organizational experience to understand and adapt to evolving public policy and how it shapes the regulatory environment and objectives of our clients. We believe this helps us identify and anticipate growth opportunities. For example, we successfully identified government healthcare as a potential growth opportunity that has thus far led to the award of three contracts to us by CMS. Together with our flexible technology platform, we have the ability to adapt our business strategy, to allocate resources and to respond to changes in our regulatory environment to capitalize on new growth opportunities.
Proven and experienced management team. Our management team has significant industry experience and has demonstrated strong execution capabilities. Our senior management team, led by Lisa Im, has been with us for an average of approximately12 years. This team has successfully grown our revenue base and service offerings beyond the original student loan market into healthcare and delinquent state tax and private financial institutions receivables. Our management team’s industry experience, combined with deep and specialized understanding of complex and highly regulated industries, has enabled us to maintain long-standing client relationships and strong financial results.
Our Growth Strategy
Key elements of our growth strategy include the following:
Expand our student loan recovery volume. The balance of defaulted government-supported student loans was approximately $100.5 billion as of September 30, 2014. While we have long-standing relationships with some of the largest participants in the government-supported student loan market, we believe there are significant opportunities within this growing market to increase the volume of student loans placed with us by existing and new clients. For example, if we are able to enter into a new contract with the Department of Education, which is currently subject to a rebidding process, we believe there is an opportunity to grow our placement volume through strong performance. Further, as a result of our relationships with five of the seven largest GAs, we believe we are well-positioned to benefit as a result of any consolidation of smaller GAs over the coming years.
Expand our recovery services in the healthcare market. According to CMS, Medicare spending totaled approximately $591.2 billion in 2013 and is expected to increase to $1.1 trillion in 2022, representing a compound annual growth rate of 7.4%. In the private healthcare market, spending totaled $961 billion in 2013 and is expected to grow more than 5.7% annually through 2023, according to CMS’ National Health Expenditures Projections. As these large markets continue to grow, we expect the need for recovery services to increase in the public and private healthcare markets. In the first quarter of 2014, we submitted proposals for new RAC contracts in all four regions, although this contracting process remains delayed due to litigation related to the bidding process. We have also entered into contracts and are pursuing additional opportunities to provide audit, recovery and analytics services in the private healthcare market. In addition, we intend to pursue opportunities to find and eliminate losses prior to payment for healthcare services, including the detection of fraud, waste and abuse in the public and private healthcare markets.
Pursue strategic alliances and acquisitions. We intend to selectively consider opportunities to grow through strategic alliances or acquisitions that are complementary to our business. These opportunities may enhance our existing capabilities, enable us to enter new markets, expand our product offerings and allow us to diversify our revenues.
Our Platform
Our technology-enabled services platform is based on over two decades of experience in recovering large amounts of funds on behalf of our clients across several markets. The components of our platform include our data management expertise, analytics capabilities and technology-based workflow processes. Our platform integrates these components to allow us to achieve optimized outcomes for our clients in the form of increased efficiency and productivity and high recovery rates. Our platform and workflow processes are also intuitive and easy to use for our recovery and claims specialists and allow us to increase our employee retention and productivity.
The components of our platform include the following:
Data Management Expertise
Our platform manages and stores large amounts of data throughout the workflow process. This includes both proprietary data we have compiled over two decades, as well as third-party data which we can integrate efficiently and in real-time to reduce errors, reduce cycle time processing and, ultimately, improve recovery rates. The strength of our data management expertise augments our analytics capabilities and provides our recovery and claims specialists with powerful workflow processes.
Data Analytics Capabilities
Our data analytics capabilities efficiently screen and allocate massive volumes of recovery inventory. For example, upon receipt of each placement of student loans, we utilize our proprietary algorithms to assist us in determining the most efficient recovery process and the optimal allocation of recovery specialist resources for each loan. In the healthcare market, we analyze millions of Medicare claims to find potential correlations between claims data and improper payments, which enhance our future recovery rates. Across all of our current markets, we utilize our proprietary analytics tools to continuously and rigorously test our workflow processes in real-time to drive greater process efficiency and improvement in recovery rates.
Furthermore, we believe our analytics capabilities will extend our potential markets, permitting us to pursue significant new business opportunities. For example, we have expanded the use of our data analytics capabilities in the healthcare sector to
offer a variety of services from post and pre-payment audit of healthcare claims in both the public and private healthcare sector, to detection of fraud, waste and abuse of healthcare claims, to coordination of benefits and pharmacy fraud detection.
Workflow Processes
Over many years, we have developed and refined our recovery workflow processes, which we believe drive higher efficiency and productivity and reduce our reliance on labor-intensive methods relative to more traditional recovery outsourcing models. We refer to the patented technology that supports our proprietary workflows as “Smart Bins.” Smart Bins disaggregate otherwise complex recovery processes into a series of simple, efficient and consistent steps that are easily configurable and applicable to different types of recovery-related applications. Our workflow processes integrate a broad range of functions that encompass each stage of a recovery process.
Smart Bins have been designed to be highly intuitive and help our recovery and claims specialists manage each step in the recovery process and enhance their productivity to high levels, regardless of skill differences among specialists. Smart Bins direct specialists toward the most efficient and effective action or step with respect to the management and recovery of a defaulted student loan, with some input by specialists. Our technology places expert system rules into the workflow engine, allowing employees at different skill levels to manage the more complex work steps that highly experienced workers would perform, while automating document management and compliance functionality as industry regulations and compliance demands change.
The following recovery diagram illustrates how the various components of our platform work together to solve a typical client workflow:
Our Services
We use our technology-enabled services platform to provide recovery and analytics services in a broad range of markets for the identification and recovery of student loans, improper healthcare payments and delinquent state tax and federal treasury receivables. The table below summarizes our recovery services and related analytics capabilities and the markets we serve.set forth below:
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| Name | Age | | Position |
Recovery ServicesLisa C. Im | 50 | Analytics
Capabilities
Chief Executive Officer and Board Chair |
Student LoansHarold T. Leach, Jr. | 57 | Healthcare | | Other Markets | Chief Operating Officer |
• Provide recovery services to the Department of Education, GAs and private institutions
• Identify and track defaulted borrowers across our clients’ portfolios of student loans
• Utilize our proprietary technology, our history of borrower data and our analytics capabilities to rehabilitate and recover past due student loans
• Earn contingent, success-based fees calculated as a percentage of funds that we enable our clients to recover
Hakan L. Orvell | 57 | • Provide audit and recovery services to identify improper healthcare payments for public and private healthcare clients
• Identify improper payments typically resulting from incorrect coding, procedures that were not medically necessary, incomplete documentation or claims submitted based on outdated fee schedules
• Earn contingent, success-based fees based on a percentage of claim amounts recovered
Chief Financial Officer |
| Todd R. Ford (1)(2)(3) | 48 | • Provide tax recovery services to state and municipal agencies
• Recover government debt for numerous different federal agencies under a contract with the Treasury
• Enable financial institutions to proactively manage loan portfolios and reduce the incidence of defaulted loan assets
• Earn contingent, success-based fees calculated as a percentage of the amounts recovered, fees based on dedicated headcount and hosted technology licensing fees
Director |
| Brian P. Golson | 44 | • We use our enhanced data analytics capabilities, which we refer to as Performant Insight, to offer a variety of services from post- and pre-payment audit of healthcare claims to detection of fraud, waste and abuse of healthcare claims, to coordination of benefits and pharmacy fraud detectionDirector |
| Bruce E. Hansen (1)(3) | 55 | Director |
| William D. Hansen (1)(2) | 55 | Director |
| Bradley M. Fluegel (2)(3) | 55 | Director |
Recovery Services
Student Loans
We provide recovery services primarily(1) Member of the audit committee.
(2) Member of the compensation committee.
(3) Member of the nominating and governance committee.
Board of Directors
Below is biographical information about our current directors:
Directors Continuing in Office until 2016 (Class I)
Todd R. Ford has served as a member of our board of directors since October 2011. Since December 2013, Mr. Ford has served as the chief financial officer of MobileIron Inc., a technology company. Mr. Ford also serves as the managing director of Broken Arrow Capital, a venture capital firm that he founded in July 2007. From June 2012 to July 2013, Mr. Ford served as the government-supported student loan industry,co-chief executive officer and chief operating officer of IntelliBatt, Inc. From December 2002 to May 2007, Mr. Ford held various leadership positions at Rackable Systems, Inc., a manufacturer of server and storage products for large-scale data center deployments that subsequently changed its name to Silicon Graphics International Corp., including service as president and chief financial officer. Mr. Ford received a Bachelor’s degree in Accounting from Santa Clara University. Mr. Ford’s executive experience with public companies, as well as his expertise in growing technology companies, provides valuable insight for the members of our clients includeboard of directors.
Brian P. Golson has served as a member of our board of directors since January 2008. Mr. Golson is the managing partner of Parthenon Capital Partners and has been with Parthenon since 2002. Prior to Parthenon, Mr. Golson held leadership positions with Everdream and GE Capital. Mr. Golson received a Bachelor’s degree in Economics from the University of North Carolina, Chapel Hill and a Master of Business Administration from Harvard University. Mr. Golson’s strategic, financial and mergers and acquisition experience provides valuable insight for the members of our board of directors.
Director Continuing in Office until 2017 (Class II)
William D. Hansen has served as a member of our board of directors since December 2011. Since July 2013, Mr. Hansen has served as chief executive officer and president of USA Funds. From July 2011 through July 2013, Mr. Hansen served as the chief executive officer of Madison Education Group, LLC, an education-related consulting firm. From July 2009 to December 2010, he served as the president of Scantron Corporation, a provider of assessment and survey solutions. Mr. Hansen also served as the chairman of Scantron Corporation from September 2010 to July 2011. Mr. Hansen held various leadership positions at Chartwell Education Group, LLC, an education-related consulting firm, from July 2005 to July 2009, including chief executive officer and senior managing director. Mr. Hansen served as the Deputy Secretary at the United States Department of Education from May 2001 to July 2003. Mr. Hansen also serves on the board of directors of First Marblehead Corporation, a student loan company. Mr. Hansen received a Bachelor’s degree in Economics from George Mason University. Mr. Hansen’s extensive experience in the student loan market provides valuable insight for the members of our board of directors.
Directors Continuing in Office until 2015 (Class III)
Lisa C. Im, 50, has served as our Chief Executive Officer since April 2004 and severalas a member of our board of directors since January 2004. Ms. Im was elected by our board of directors to serve as the Chair of the largest GAs,board of directors following Jon D. Shaver’s resignation from that position in August 2014. From 2002 to 2004, she was Managing Director and Chief Financial Officer of our predecessor before it was acquired by Parthenon Capital Partners. Prior to that, Ms. Im was with Bestfoods Corporation, a food products manufacturer, from 1996 to 2002 where she gained broad experience including in general management as well as privateexecutive financial institutions. We usepositions for various regions of Bestfoods Corporation. Ms. Im received a Bachelor of Business Administration in Marketing from Loma Linda University, and a Master of Business Administration in Finance from California State University, East Bay. Ms. Im’s experiences and perspectives as our proprietary technologyChief Executive Officer led to identify, track and communicate with defaulted borrowers on behalfthe conclusion that she should serve as a member of our clientsboard of directors.
Bradley M. Fluegel, 55, has served as a member of our board of directors since February 2014. Since October 2012, Mr. Fluegel has served as the Senior Vice President-Chief Strategy Officer for Walgreen Co. From April 2011 to implement suitable recovery programsSeptember 2012, Mr. Fluegel served as executive in residence at Health Evolution Partners, a healthcare private equity firm. Prior to joining Health Evolution Partners, Mr. Fluegel served as executive vice president and chief strategy and external affairs officer of WellPoint, Inc. from September 2007 to December 2010. Prior to that, Mr. Fluegel served as senior vice president of national accounts and vice president, enterprise strategy at Aetna. Mr. Fluegel received a master’s degree in public policy from Harvard University’s Kennedy School of Government and a bachelor of arts in business administration from the University of Washington. He also serves as a lecturer at the University of Pennsylvania’s Wharton School of Business. Mr. Fluegel’s extensive experience with leading companies in the healthcare market provides valuable insight for the repaymentmembers of outstanding student loan balances.our board of directors.
Bruce E. Hansen, 55, has served as a member of our board of directors since April 2013. In March 2002, he co-founded ID Analytics and led the company as its Chair and Chief Executive Officer until its sale to LifeLock in March 2012. Prior to founding ID Analytics, he was President of HNC Software Inc., a provider of analytic software solutions for financial services, telecommunications and healthcare firms. Mr. Hansen has served as a director of Mitek Systems, Inc. since October 2012. He has served as Chair of the Board of Directors for the San Diego Software Industry Council for many years and is also a past member of the San Diego American Electronics Association Technology CEO Board. Mr. Hansen holds a BA in Economics from Harvard University and a Master of Business Administration in Finance from the University of Chicago. Mr. Hansen’s extensive experience in leading companies in the financial services, big data, and analytics markets provides valuable insight for the members of our board of directors.
Director Compensation
Our clients contract with us to provide recovery servicesnon-employee, independent directors receive an annual retainer of $30,000, prorated for large poolspartial service in any year and paid in cash. The non-employee, independent members of student loans generally representing a portionour audit committee, compensation committee and nominating and governance committee, other than the chairpersons of those committees, receive an additional annual retainer of $10,000, $6,000 and $5,000, respectively. The chairpersons of our audit committee, compensation committee and nominating and governance committee each receive an additional annual retainer of $20,000, $12,000 and $10,000, respectively.
Our non-employee, independent directors also receive an annual grant of restricted stock units valued at $75,000, vesting in full on the first anniversary of the total outstanding defaulted balances they manage, which they provide to us as “placements” ongrant date or upon a periodic basis. Generally, the volumechange of placements that we receive from our clients is influenced by our performance under our contractscontrol and our ability to recover funds from defaulted student loans, as measured against the performance of competitors who may service a similar pool of defaulted loans for the same client. To the extent we perform well under our existing contracts and differentiate our services from those of our competitors, we may receive a relatively greater number of student loan placements under these contracts and may improve our ability to obtain future contracts from these clients and other potential clients.
We use algorithms derived from over two decades of experience with defaulted student loans to make reasonably accurate estimates of the recovery outcomes likely to be derived from a placement of defaulted student loans.
Our current contract with the Department of Education will expire in April 2015, and wenew directors are currently subject to a competitive rebidding process for the next contract with the Department of Education. We understand that five other recovery service providers under the current contract have recently received notice from the Department of Education stating an intention to extend their existing contracts past April 2015. To date, we have not received notice of any such extension from the Department of Education and we are unsure whether we will be provided any such extension of our current contract or when the new contracts will be awarded. We do not believe the Department of Education has completed the current contract extension process. However, duegranted restricted stock units valued at $100,000 upon election to the timingboard, vesting ratably over four years or upon a change of the rehabilitation process for loans placed with us by the Department of Education, we expect there will be a minimal impact on our revenues in 2015 if wecontrol. Our directors do not receive an extensionadditional fees for attendance at a meeting of our current contract. Despite noticeboard of their intentdirectors or a committee of the board.
The table below summarizes the compensation paid by the Company to extendour non-employee independent directors for the current contractfiscal year ended December 31, 2014. Mr. Golson and our former director Dr. Jon Shaver, did not receive compensation paid by the Company for five recovery service providers, we believe the Department of Education is not permitted to selectively extend the contract for individual recovery service providers.
We also restructure and recover student loans issued directly by banks to students outside of federal lending programs. These types of loans typically supplement government-supported student loans to meet any shortfall in supply of student loan needs that cannot be met by grants or federal loans. Unlike government-supported student loans, private student loans do not have capped interest rates and, accordingly, involve higher instances of default relative to federally-backed student loans.
Healthcare
We provide recovery services related to improper paymentsas a director in the healthcare market. In 2009 we were awarded the role as one of four prime RAC contractors in the United States, with exclusive responsibility for the Northeast region. Under our existing RAC contract, we identify and facilitate the recovery of improper Parts A and B Medicare payments. Our relationship with CMS began in 2005 with an initial demonstration contract to recover improper payments for Medicare Secondary Payor claims.
Under our existing RAC contract with CMS, we utilize our technology-enabled services platform to screen Medicare claims against several criteria, including coding procedures and medical necessity standards, to determine whether a claim should be further investigated for recoupment or adjustment by CMS. We conduct automated and, where appropriate, detailed medical necessity reviews. If we determine that the likelihood of finding a potential improper payment warrants further investigation, we request and review healthcare provider medical records related to the claim, utilizing experts in Medicare coding and registered nurses. We interact and communicate with healthcare providers and other administrative entities, and ultimately submit the claim to CMS for correction.
We are currently involved in a competitive rebidding process for four new RAC contracts with CMS. The timing of new RAC contract awards remains uncertain. The bidding process has been delayed, at least in part, by pre‑award protests and, following the denial of those protests, by ongoing litigation. The plaintiffs in the litigation are seeking the elimination of payment terms under the proposed new RAC contracts that would prohibit RACs from being compensated for improper claims until a second level of appeal has been exhausted. An initial decision in favor of CMS was subject to appeal in which the appellate court recently remanded the case back to the lower court to rule on the merits of the case. There is a related injunction barring the award of three of the four new RAC contracts pending resolution of this litigation. A fifth RAC contract, which is a new type of RAC contract covering the identification and recovery of improper claims for durable medical equipment, prosthetics, orthotics and supplies and home health and hospice claims, was not covered by the injunction and was awarded to another party in January 2015. The Company is not a party to this litigation. CMS has stated that the injunction will delay the award of the three contracts until the judge’s ruling on the injunction, which is not expected to occur until late summer 2015. It is uncertain whether CMS will award the RAC contract not covered by the injunction in the interim period or will wait to award all of the new RAC contracts at the same time. CMS also recently announced that it extended our existing RAC contract through December 31, 2015, along with a limited scope of procedures we will be allowed to conduct and a limited scope of claim types we will be permitted to pursue during this extended period. CMS has further indicated they may, at their discretion, approve additional issues that we will be permitted to review and audit during the RAC contract extension period.
In the private healthcare market, we utilize our technology-enabled services platform to provide audit, recovery and analytical services for private healthcare payors. Our experience from our existing RAC contract has helped establish our presence in the private healthcare market by providing us the opportunity to provide audit and recovery services for several national commercial health plans. Our audit and analytic capabilities have allowed us not only to expand our services with these initial private healthcare clients, but also gain entry into other related private healthcare opportunities.
Other Markets
We also provide recovery services to several state and municipal tax authorities, the Department of the Treasury, the Department of Education and a number of financial institutions.
For state and municipal tax authorities, we analyze a portfolio of delinquent tax and other receivables placed with us, develop a recovery plan and execute a recovery process designed to maximize the recovery of funds. In some instances, we have also run state tax amnesty programs, which provide one-time relief for delinquent tax obligations, and other debtor management services for our clients. We currently have relationships with numerous state and municipal governments. Delinquent obligations are placed with us by our clients and we utilize a process that is similar to the student loan recovery process for recovering these obligations.
For the Department of the Treasury, we recover government debt subrogated to it by numerous different federal agencies. The placements we are provided represent a mix of commercial and individual obligations. We are one of four contractors for the most recent Treasury contract.
We also provide risk management advisory services that enable these clients to proactively manage loan portfolios and reduce the incidence of defaulted loan assets over time. Our experience suggests that proactive default prevention practices produce significant net yield and earnings gains for our clients. We deliver these services in two forms. First, we contact and consult with borrowers to implement a repayment program, including payment through automatic debit arrangements, prior to the beginning of the repayment period in order to increase the likelihood that payments begin on time. Second, we offer a service that involves contacting delinquent borrowers in an effort to cure the delinquency prior to the loan entering default.
Analytics Capabilities
For several years, we have leveraged our data analytics tools to help filter, identify and recover delinquent and defaulted assets and improper payments as part of our core recovery services platform. Through our data analytics capabilities, which we refer to as Performant Insight, we are able to review, aggregate, and synthesize very large volumes of structured and unstructured data, at high speeds, from the initial intake of disparate data sources, to the warehousing of the data, to the analysis and reporting of the data. We believe we have built a differentiated, next-generation “end-to-end” data processing solution that will maximize value for current and future customers.
Performant Insight provides numerous benefits for our recovery services platform. Performant Insight has not only enhanced our existing recovery services under our RAC contract by analyzing significantly higher volumes of healthcare claims at faster rates and reducing our cycle time to review and assess healthcare claims, but has also enabled us to develop improved and more sophisticated business intelligence rules that can be applied to our audit processes. We believe our analytics capabilities will extend our potential markets, permitting us to pursue significant new business opportunities. We have expanded the use of our data analytics capabilities in the healthcare sector to offer a variety of services from post and pre-payment audit of healthcare claims in both the public and private healthcare sector, to detection of fraud, waste and abuse of healthcare claims, to coordination of benefits and pharmacy fraud detection.
Our Clients
We provide our services across a broad range of government and private clients in several markets.
Department of Education
We have provided student loan recovery services to the Department of Education for approximately 24 years. We restructure and recover defaulted student loans distributed directly by the Department of Education as part of the FDSLP. Due to its limited resources and recovery capabilities, the Department of Education outsources much of its defaulted student loan portfolio to third-party vendors for recovery. Recovery fees are entirely contingency-based, and our fee for a particular recovery depends on the type of recovery facilitated. We also receive incremental performance incentives based upon our performance as compared to other contractors with the Department of Education, which are comprised of additional inventory allocation volumes and incentive fees. To participate in the Department of Education contracts, firms must follow a highly competitive selection process. For the latest Department of Education contract, the fourth major contract the Department of Education has outsourced to selected vendors, we were selected as one of 17 unrestricted vendors and initiated work on this contract in the fourth quarter of 2009. Our current contract with the Department of Education will expire in April 2015. We are currently subject to a competitive rebidding process for the next contract with the Department of Education. We understand that five other recovery service providers under the current contract have recently received notice from the Department of Education stating an intention to extend their existing contracts past April 2015. To date, we have not received notice of any such extension from the Department of Education, and we are unsure whether we will be provided any such extension of our current contract or when the new contracts will be awarded. We do not believe the Department of Education has completed the current contract extension process. However, due to the timing of the rehabilitation process for loans placed with us by the Department of Education, we expect there will be a minimal impact on our revenues in 2015 if we do not receive an extension of our current contract. Despite notice of their intent to extend the current contract for five recovery service providers, we believe the Department of Education is not permitted to selectively extend the contract for individual recovery service providers. Because all federally-supported student loans are being originated by the Department of Education as a result of SAFRA, our relationship with the Department of Education will become increasingly more important over time. The Department of Education was responsible for approximately 27.2% of our revenues for thefiscal year ended December 31, 2014.
We restructure |
| | | | | | |
| Name | Fees Earned or Paid in Cash($) | Stock Awards($)(1)(2) | | Option Awards | Total($) |
| Bruce E. Hansen | 50,000 | 75,000 | | — |
| 125,000 |
| William D. Hansen | 52,000 | 75,000 | | — |
| 127,000 |
| Todd R. Ford | 61,000 | 75,000 | | — |
| 136,000 |
| Bradley M. Fluegel | 37,583 | 175,000 | (3) | — |
| 212,583 |
| |
| (1) | The value of this stock award is based on the fair value of the award as of the grant date calculated in accordance with Accounting Standards Codification 718, Stock Compensation (ASC 718) for financial reporting purposes. See Note 10 of the Notes to the Consolidated Financial Statements in our Annual Report on Form 10-K for the year ended December 31, 2014 for a discussion of our assumptions in determining the ASC 718 values of our stock awards. |
| |
| (2) | Each of our non-employee, independent directors were awarded restricted stock units valued at $75,000 on May 6, 2014 (which equated to 8,700 stock units), vesting in full after one year. |
| |
| (3) | Mr. Fluegel was awarded restricted stock units valued at $100,000 upon his election as a director on February 4, 2014 (which equated to 13,495 stock units), vesting ratably over four years. |
Section 16(a) Beneficial Ownership Reporting Compliance
Under U.S. securities laws, directors, certain executive officers and recover defaulted student loans issued by private lendersany person holding more than 10% of our common stock must report their initial ownership of the common stock and backed by GAs underany changes in that ownership to the FFELP. DespiteSEC. The SEC has designated specific due dates for these reports and we must identify in this proxy statement those persons who did not file these reports when due. Based solely on our review of copies of the transition from FFELP to FDSLP,reports filed with the SEC and written representations of our directors and executive officers, we believe GA default volumes will continueall persons subject to risereporting filed the required reports on time in 2014.
Audit Committee and Nominating and Governance Committee
Audit committee. Our audit committee consists of Messrs. W. Hansen, B. Hansen and Ford. Mr. Ford serves as the chairperson of this committee. The audit committee met six times in 2014. Our board of directors has determined
that Mr. Ford is an audit committee financial expert, as defined by the rules promulgated by the Securities and Exchange Commission, or the SEC. Our audit committee is composed entirely of independent directors.
In accordance with its charter, our audit committee provides assistance to the board of directors in fulfilling its legal and fiduciary obligations in matters involving our accounting, auditing, financial reporting, internal control and legal compliance functions. It engages our independent registered public accounting firm, approves the services performed by our independent registered public accounting firm and reviews their reports regarding our accounting practices. The audit committee also oversees the audit efforts of our independent registered public accounting firm and takes those actions as it deems necessary to satisfy itself that the independent registered public accounting firm is independent of management.
Nominating and governance committee. Our nominating and governance committee consists of Messrs. Ford, Fluegel and B. Hansen. Mr. B. Hansen serves as chairperson of this committee. The nominating and governance committee met four times in 2014. The nominating and governance committee is responsible for making recommendations to the board of directors regarding candidates for directorships and the size and composition of the board. In addition, the nominating and governance committee is responsible for overseeing our corporate governance guidelines and reporting and making recommendations to the board of directors concerning corporate governance matters. Our nominating and governance committee is composed entirely of independent directors.
Role of Our Board of Directors in Risk Oversight
One of the key functions of our board of directors is informed oversight of our risk management process. Our board of directors administers this oversight function directly through our board of directors as a few yearswhole, as there generallywell as through various standing committees of our board of directors that address risks inherent in their respective areas of oversight. In particular, our board of directors is responsible for oversight of our risk management process. The nominating and governance committee periodically evaluates our risk management process and system in light of the nature of the material risks we face. Our compensation committee assesses and monitors whether any of our compensation policies and programs are reasonably likely to have a material adverse effect on us. Our audit committee periodically assesses any major financial risk exposures and the steps management has taken to monitor and control such exposures. The audit committee also has the responsibility to oversee management’s assessment of major legal and regulatory risk exposures and management’s implementation of policies and procedures to address these risks. To the extent risk oversight is a lag between originations and defaultsfocus of at least three to four years. When a borrower stops making regular payments on a FFELP loan, the GA is obligated to reimburse the lender approximately 97%one or more committees of the loan’s principal and accrued interest. GAs then seek to recover and restructure these obligations. The GAs with which we contract generally structure one to
three-year initial term contracts with multiple renewal periods, and historically the fees that we receive are generally similardirectors, those committees report key findings periodically to the fees we receive fromfull board of directors.
Director Nomination Policy
There have been no material changes to the Departmentprocedures by which security holders may recommend nominees to our board of Education contract. For some GA clients, we provide services through MSAs, under which we manage a GA’s entire portfoliodirectors since those procedures were described in our proxy statement for our 2013 annual meeting of defaulted student loansstockholders.
Our nominating and for certain clients, engage subcontractors to provide a portion of the recovery services associated with a GA’s student loan portfolio.
We have a relationship with 12 of the 29 active GAs in the U.S., including Great Lakes Higher Education Guaranty Corporation and American Student Assistance Corporation, which weregovernance committee is responsible for 15.1%identifying, evaluating, recruiting and 12.7%, respectively,recommending qualified candidates to our board of our revenuesdirectors for the year ended December 31, 2014. We have had relationshipsnomination or election. Our board of directors nominates directors for election at each annual meeting of stockholders, and elects new directors to fill vacancies if they occur.
Our board of directors strives to find directors who are experienced and dedicated individuals with some GA clientsdiverse backgrounds, perspectives and skills. Our governance guidelines contain membership criteria that call for over 25 years.
CMS
We have a nine-year relationship with CMS. Under our RAC contract with CMS awarded in 2009, we identifycandidates to be selected for their character, judgment, diversity of experience, business acumen and facilitate the recovery of improper Part A and Part B Medicare payments in the Northeast region of the United States. The RAC contract accounted for approximately 14.9% of our revenues for the year ended December 31, 2014. We are currently subjectability to a competitive rebidding process for the next RAC contract with CMS. The fees that we receive for identifying these improper payments from CMS are entirely contingency-based, and the contingency-fee percentage depends on the methods of recovery, and, in some cases, the type of improper payment that we identify.
U.S. Department of the Treasury
We have assisted the Department of the Treasury for 17 years in the recovery of delinquent receivables owed to a number of different federal agencies. The debt obligations we help to recoveract on behalf of the Departmentall stockholders. In addition, we expect each director to be committed to enhancing stockholder value and to have sufficient time to effectively carry out his or her duties as a director.
Prior to our annual meeting of the Treasury include commercialstockholders, our nominating and individual debt obligations. We are one of the four firms servicinggovernance committee identifies director nominees first by evaluating the current Department ofdirectors whose terms will expire at the Treasury contract. Similar to our other recovery contracts, our fees under this contractannual meeting and who are contingency-based. We view this as an important strategic relationship, as it provides us valuable insight into other business opportunities within the federal government.
State Tax and Municipal Agencies
We provide outsourced recovery services for individuals’ delinquent state tax and other municipal obligations on a hosted model and under MSAs. We currently have relationships with ten state and municipal governments.
Private Lenders
We provide recovery services for private student loans, that supplement federally guaranteed loans, and home mortgages to private lenders.
Sales and Marketing
Our new business opportunities have historically been driven largely by referrals and natural extensions of our existing client relationships, as well as a targeted outreach by senior management. Our sales cycles are often lengthy, and demand high levels of attention from our senior management. At any point in time, we are typically focused on a limited number of potentially significant new business opportunities. As a result, to date, we have operated with a small staff of experienced individuals with responsibility for developing new sales, relying heavily upon our executive staff, including an appropriate sales and marketing team covering various markets.
Technology Operations
Our technology center is based in Livermore, California, with a redundant capacity in our Grants Pass, Oregon office. Additionally, Performant Insight, our data analytics business, is supported by staff in Miami Lakes, Florida. We have designed our infrastructure for scalability and redundancy, which allows uswilling to continue in service. Subject to operate in the event of an outage at either datacenter. We maintain an information systems environment with advanced network security intrusion detection and prevention with 24x7 monitoring and security incident response capabilities. We utilize encryption technologies to protect sensitive data on our systems, all data during transmission and all data on redundancy or backup media. We also maintain a comprehensive enterprise-wide information security system based upon recognized standards, including the NIST800 53 and ISO 27002 Code of Practice for Information Security Program Management, to uphold high security standards needed for the protection of sensitive information.
Competition
We face significant competition in all aspects of our business.
In recovery services for delinquent and defaulted assets, we face competition from a number of companies. Holders ofDirector Nomination Agreement described below, these delinquent and defaulted assets typically engage several firms simultaneously to provide recovery services on different portions of their portfolios. The number of recovery firms engaged varies by client. For example, wecandidates are one of 17 unrestricted providers of recovery services on the current Department of Education contract, while some of the GAs may only engage a few recovery vendors at any time. Initially, we compete to be one of the retained firms in a competitive bidding process and, if we are successful, we then face continuing competition from the client’s other retained firmsevaluated based on the client’s benchmarkingcriteria described above, the candidate’s prior service as a director, and the needs of the recovery performanceboard of its several vendors. Clients such as
directors for any particular talents and experience. If a director no longer wishes to continue in service, if the Department of Education typically will allocate additional placementsnominating and governance committee decides not to those recovery vendors producing the highest recovery rates. We believe that we primarily competere-nominate a director, or if a vacancy is created on the basisboard of recovery rate performance, as well as maintenancedirectors because of high standards of recovery practices and data security capabilities. We believe that we compete favorably with respect to most of these factors as evidenced by our long-standing relationships with our clientsa resignation or an increase in these markets. Pricing is not usually a major competitive factor as all recovery services vendors in these markets typically receive the same contingency-based fee rate.
In the recovery of improper healthcare payments, we faced a highly competitive process, involving a large number of bidders, to become onesize of the four prime RAC contractorsboard of directors or other event, then the committee considers whether to recommend the nomination of a new director or to recommend a decrease in the United States. CMSsize of the board of directors. If the decision is currently into nominate a new director, then the procurement processnominating and governance committee considers various candidates for membership on the next roundboard of RAC contracts. We expect that our competition will includedirectors, including those suggested by committee members, by other members of the other three RAC service providers: Health Management Systems, Inc., Connolly Consulting, Inc. and CGI Group. We also may face competition fromboard of directors, a variety of healthcare consulting and healthcare information services companies. Some of these potential competitors for the next RAC contract may have greater financial and other resources than we do. According to the request for quotes, the competitive factors for this new RAC contract are demonstrated experience in effective recovery services in the healthcare market, technical approach for identifying improper payments, key personnel and staffing, financial capability to perform under the RAC contract and recovery fee rates. We believe that our eight-year relationship with CMS and our related experience in providing recovery services to identify improper payments allows us to compete favorably with respect to many of these factors. We expect that our performance in identifying claims, managing the claims processes under the current RAC contract, and established systems integration with CMS and related Medicare administrative contractors will also be key factors in determining our continued service to CMS.
Government Regulation
The nature of our business requires that we adhere to a complex array of federal and state laws and regulations. These include the Health Insurance Portability and Accountability Act, or HIPAA, the Fair Debt Collection Practices Act, or FDCPA, the Fair Credit Reporting Act, or FCRA, the rules and regulations establisheddirector search firm engaged by the Consumer Financial Protection Bureau,committee, or CFPB, and related state laws. Weour stockholders. Prospective nominees are also governed by a variety of state laws that regulate the collection, use, disclosure and protection of personal information. We have implemented and maintain physical, technical and administrative safeguards intended to protect all personal data and we have processes in place to assist us in complying with applicable laws and regulations regarding the protection of this data. Our compliance efforts include training of personnel and monitoring our systems and personnel.
HIPAA and Related State Laws
Our Medicare recovery business subjects us to compliance with HIPAA and various related state laws that contain substantial restrictions and requirements with respect to the use and disclosure of an individual’s protected health information. HIPAA prohibits us from using or disclosing an individual’s protected health information unless the use or disclosure is authorizedevaluated by the individual or is specifically required or permitted under HIPAA. Under HIPAA, we must establish administrative, physicalnominating and technical safeguards to protect the confidentiality, integrity and availability of electronic protected health information maintained or transmitted by us or by others on our behalf. We are required to notify affected individuals and government authorities of data security breaches involving unsecured protected health information. The Department of Health and Human Services Office of Civil Rights enforces HIPAA privacy violations; CMS enforces HIPAA security violations and the Department of Justice enforces criminal violations of HIPAA. We are subject to statutory penalties for violations of HIPAA.
Most states have enacted patient confidentiality laws that protect against the unauthorized disclosure of confidential medical information, and many states have adopted or are considering further legislation in this area, including privacy safeguards, security standards and data security breach notification requirements. These state laws, if more stringent than HIPAA requirements, are not preempted by the federal requirements, and we must comply with them even though they may be subject to different interpretations by various courts and other governmental authorities. In addition, numerous other state laws govern the collection, dissemination, use, access to and confidentiality of individually identifiable health and healthcare provider information.
Our compliance efforts include the encryption of protected health information that we hold and the development of procedures to detect, investigate and provide appropriate notification if protected health information is compromised. Our
employees and contractors receive initial and periodic supplemental training and are tested to ensure compliance. As part of our certification and accreditation process, we must undergo audits by federal agencies as noted below. CMS regularly audits us for, among other items, compliance with their security standards.
Privacy Act of 1974
The Privacy Act of 1974 governs the collection, use, storage, destruction and disclosure of personal information about individuals by a government agency and extends to government contractors who have access to agency records performing services for government agencies. The Privacy Act requires maintenance of a code of conduct for employees with access to the agency records addressing the obligations under the Privacy Act, training of employees and discipline procedures for noncompliance. The Privacy Act also requires adopting and maintaining appropriate administrative, technical and physical safeguards to insure the security and confidentiality of records and to protect against any anticipated threats or hazards to their security or integrity.
As a contractor to federal government agencies we are required to comply with the Privacy Act of 1974. Our compliance effort includes initial and ongoing training of employees and contractors in their obligations under the Privacy Act. In addition we have implemented and maintain physical, technical and administrative safeguards and processes intended to protect all personal data consistent with or exceeding our obligations under the Privacy Act.
Certification, Accreditation and Security
Business services that collect, store, transmit or process information for United States government agencies and organizations are required to undergo a rigorous certification and accreditation process to ensure that they operate at an acceptable level of security risk. As a government contractor, we currently have Authority to Operate, or ATO, licenses from both the Department of Education and CMS.
We maintain a comprehensive enterprise-wide information security systemgovernance committee based upon recognized standards, including the NIST800 53 and ISO 27002 Code of Practice for Information Security Program Management, to uphold high security standards needed for the protection of sensitive information. In addition, we hold SSAE – SOC 1 Type II certification, which provides assurance to auditors of third parties that we maintain the necessary controls and procedures to effectively manage third party data. We undergo an independent audit by our government agency clients on the award of the contractmembership criteria described above and periodically thereafter. We also conduct periodic self-assessments.
Our regulatory compliance group is charged with the responsibility of ensuringset forth in our regulatory compliance and security. All our facilities have security perimeter controls with segregated access by security clearance level. The information systems environment maintains advanced network security intrusion detection and prevention with 24x7 monitoring and security incident response capabilities. We utilize encryption technologies to protect sensitive data on our systems, all data during transmission and all data on redundancy or backup media. Employees undergo background and security checks appropriate to their position. This can include security clearances by the Federal Bureau of Investigation. We also maintain compliant disaster recovery and business continuity plans, annually conduct two table top disaster exercises, conduct routine security risk assessments and maintain a continuous improvement process as part of our security risk mitigation and management activity.
FDCPA and Related State Laws
The FDCPA regulates persons who regularly collect or attempt to collect, directly or indirectly, consumer debts owed or asserted to be owed to another person. Certain of our debt recovery and loan restructuring activities may be subject to the FDCPA. The FDCPA establishes specific guidelines and procedures that debt recovery firms must follow in communicating with consumer debtors, including the time, place and manner of such communications. Further, it prohibits harassment or abuse by debt recovery firms, including the threat of violence or criminal prosecution, obscene language or repeated telephone calls made with the intent to abuse or harass. The FDCPA also places restrictions on communications with individuals other than consumer debtors in connection with the collection of any consumer debt and sets forth specific procedures to be followed when communicating with such third parties for purposes of obtaining location information about the consumer. In addition, the FDCPA contains various notice and disclosure requirements and prohibits unfair or misleading representations by debt recovery firms. Finally, the FDCPA imposes certain limitations on lawsuits to collect debts against consumers.
Prior to the adoption of amendments to the FDCPA as part of the Dodd-Frank Act, no federal agency had the authority to issue interpretative regulations for the FDCPA. As a result, judicial determinations and non-binding interpretative positions issued by the Federal Trade Commission under the FDCPA created compliance difficulties for the consumer debt collections industry. With the adoption of the amendments to the FDCPA as part of the Dodd-Frank Act in 2011, however, as well as specific statutory authority to issue implementing regulations for the FDCPA, primary jurisdiction for the FDCPA was
transferred to the Consumer Financial Protection Bureau, or CFPB. Subsequently, the CFPB has indicated that it may issue proposed regulations under the FDCPA.
Debt recovery activities are also regulated at the state level. Most states have laws regulating debt recovery activities in ways that are similar to, and in some cases more stringent than, the FDCPA. In addition, some states require debt recovery firms to be licensed.
Our compliance efforts include written procedures for compliance with the FDCPA and related state laws, employee training and monitoring, auditing client calls, periodic review, testing and retraining of employees, and procedures for responding to client complaints. In all states where we operate, we believe that we currently hold all required state licenses or are exempt from licensing. Violations of the FDCPA may be enforced by the U.S. Federal Trade Commission, or FTC, or by a private action by an individual or class. Violations of the FDCPA are deemed to be an unfair or deceptive act under the Federal Trade Commission Act, which can be punished by fines for each violation. Class action damages can total up to one percent of the net worth of the entity violating the statute. Attorney fees and costs are also recoverable. In the ordinary course of business we are sued for alleged violations of the FDCPA and comparable state laws, although the amounts involved in the disposition or settlement of any such claims have not been significant.
FCRAGovernance Guidelines.
We are also subject to the Fair Credit Reporting Act, or FCRA, which regulates consumer credit reporting and which may impose liability on us to the extent that the adverse credit information reported on a consumerparty to a credit bureau is falseDirector Nomination Agreement with Parthenon Capital Partners that provides Parthenon Capital Partners the right to designate nominees for election to our board of directors for so long as Parthenon Capital Partners owns 10% or inaccurate. State law, to the extent it is not preempted by the FCRA, may also impose restrictions or liability on us with respect to reporting adverse credit information. Our compliance efforts include initial and ongoing training of employees working with consumer credit reports, monitoring of performance, and periodic review and risk assessments. Violations of FCRA, which are deemed to be unfair or deceptive acts under the Federal Trade Commission Act, are enforced by the FTC or by a private action by an individual or class. Civil actions by consumers may seek damages per violation, with punitive damages, attorneys fees and costs also recoverable. Under the Federal Trade Commission Act, penalties for engaging in unfair or deceptive acts can be punished by fines for each violation.
CFPB
The CFPB was created as partmore of the Dodd-Frank Act in 2011, with primary implementing and interpretative authority for most federal consumer protection laws, including the FDCPA, transferred to the CFPB. Among other things, the CFPB was given the authority to issue interpretive regulations for the FDCPA.
In addition to its authority in regard to federal consumer protection laws, the CFPB was also provided direct jurisdiction over certain consumer financial service providers. In October of 2012, the CFPB issued a rule asserting direct jurisdiction over large consumer debt collectors, which includes debt collectors with annual assets of more than $10 million. In accordance with the calculations included in this rule, we are subject to direct jurisdiction of the CFPB and in the future may be directly examined and supervised by the CFPB. In that regard, the CFPB has also released examination guidance that its examiners will use when reviewing compliance by debt collectors subject to its direct supervision.
Recently, the CFPB has focused on service providers involved in collecting debt related to any consumer financial product from committing unfair, deceptive, or abusive acts or practices, or UDAAPs, in violation of the Dodd-Frank Act. UDAAPs include actions that are unfair and likely to cause substantial injury to consumers, deceptive actions that mislead or likely to mislead a consumer and abusive acts that interfere with the ability of a consumer to understand a term or condition of a consumer financial product or takes unreasonable advantage of a consumer’s lack of understanding of a consumer financial product. Although abusive acts or practices may also be unfair or deceptive, each of these prohibitions are separate and distinct, and are governed by separate legal standards. Original creditors and other covered persons and service providers involved in collecting debt related to any consumer financial product or service are subject to the prohibition against UDAAPs. The CFPB has indicated that it will continue to review closely the practices of those engaged in the collection of consumer debts for potential UDAAPs in violation of the Dodd-Frank Act.
On April 12, 2013, we received a Civil Investigative Demand, or a CID, from the CFPB requesting production of documents and answers to questions generally related to our debt collection practices and procedures. The CFPB has not alleged a violation by us of any law or regulation. We responded to the CID, but have not been examined by the CFPB. In light of the possibility that the CFPB may issue interpretative regulations for the FDCPA, the issuance of such regulations could adversely affect our business and results of operations if we are not able to adapt our services and client relationships to meet any new regulatory structure that might be required.
State Law Compliance and Security Breach Response
Many states impose an obligation on any entity that holds personally identifiable information or health information to adopt appropriate security to protect such data against unauthorized access, misuse, destruction, or modification. Many states have enacted laws requiring holders of personal information to take certain actions in response to data breach incidents, such as providing prompt notification of the breach to affected individuals and government authorities. In many cases, these laws are limited to electronic data, but states are increasingly enacting or considering stricter and broader requirements. Massachusetts has enacted a regulation that requires any entity that holds, transmits or collects certain personal information about its residents to adopt a written data security plan meeting the requirements set forth in the statute. We have implemented and maintain physical, technical and administrative safeguards intended to protect all personal data and have processes in place to assist us in complying with applicable laws and regulations regarding the protection of this data and properly responding to any security incidents. We have adopted a system security plan and security breach incident response plans to address our compliance with these laws.
Intellectual Property
Our intellectual property is a significant component of our business, including, most notably, the intellectual property underlying our proprietary technology-enabled services platform through which we provide our defaulted asset recovery and other services. To protect our intellectual property, we rely on a combination of intellectual property rights, including patents, trade secrets, trademarks and copyrights. We also utilize customary confidentiality and other contractual protections, including employee and third-party confidentiality and invention assignment agreements.
As of December 31, 2014, we had two U.S. patents, both covering aspects of the workflow management systems and methods incorporated into our technology-enabled services platform. These patents will expire in September 2024. We routinely assess appropriate occasions for seeking additional patent protection for those aspects of our platform and other technologies that we believe may provide competitive advantages to our business. We also rely on certain unpatented proprietary expertise and other know-how, licensed and acquired third-party technologies, and continuous improvements and other developments of our various technologies, all intended to maintain our leadership position in the industry.
As of December 31, 2014, we had five trademarks registered with the U.S. Patent and Trademark office: DCS, Performant Recovery, Performant Technologies, Discovery Analytics, and Performant Insight.
We have registered copyrights covering various copyrighted material relevant to our business. We also have unregistered copyrights in many components of our software systems. We may not be able to use these unregistered copyrights to prevent misappropriation of such content by unauthorized parties in the future; however, we rely on our extensive information technology security measures and contractual arrangements with employees and third-party contractors to minimize the opportunities for any such misuse of this content.
We are not subject to any material intellectual property claims alleging that we infringe, misappropriate or otherwise violate the intellectual property rights of any third party, nor have we asserted any material intellectual property infringement claim against any third party.
Employees
As of December 31, 2014, we had approximately 1,484 full-time employees. None of our employees is a member of a labor union and we consider our employee relations to be good.
Recent Developments
On January 28, 2015, we entered into an Agreement and Plan of Merger (“Merger Agreement”) with Premier Healthcare Exchange, Inc., a Delaware corporation (“PHX”), pursuant to which, PHX would become our wholly-owned indirect subsidiary. The Merger Agreement contains customary closing conditions, including completion of a financing by us to fund the consideration payable under the terms of the Merger Agreement. The purchase price under the Merger Agreement is approximately $108 million in cash, subject to certain adjustments, and certain PHX stockholders will also exchange shares for $22 million of our common stock. We also could be obligated to pay up to an additional $19.1 million in cash pursuant to an earnout arrangement based on PHX in revenues in 2015. On January 28, 2015 we announced proposed concurrent public offerings of $80 million aggregate principal amount of convertible senior notes due 2020 and $50 milliontotal number of shares of our common stock outstanding. The number of nominees that Parthenon Capital Partners is entitled to financedesignate under this agreement bears the cash portionsame proportion to the total number of members of our board of directors as the number of shares of our common stock beneficially owned by Parthenon Capital Partners bears to the total number of shares of our common stock outstanding, rounded up to the nearest whole number. In addition, Parthenon Capital Partners is entitled to designate the replacement for any of its board designees whose board service terminates prior to the end of the director’s term regardless of Parthenon Capital Partners’ beneficial ownership at such time. Parthenon Capital Partners also has the right to have its designees participate on committees of our board of directors proportionate to its stock ownership, subject to compliance with applicable law and stock exchange rules. The Director Nomination Agreement will terminate at such time as Parthenon Capital Partners owns less than 10% of our outstanding common stock.
Each notice delivered by a stockholder who wishes to recommend a nominee to the board of directors for consideration payable underby the Merger Agreement. On January 30, 2015, we announced our decision to withdrawnominating and governance committee generally must include the following information about the proposed public offerings of convertible senior notesnominee:
the name, age, business address and common stock. The Merger Agreement is currently terminable by either us or PHX without penalty, except that we are obligated to pay an expense
termination fee of $750,000 in the event the merger is not completed due to our failure to complete the required financingresidence address of the consideration payable under proposed nominee;
the Merger Agreement.principal occupation of the proposed nominee;
Available Informationthe number of shares of our capital stock beneficially owned by the proposed nominee;
The SEC maintains an Internet site at http://www.sec.gov that contains our Annual Report on Form 10-K, quarterly reports on Form 10-Q, current reports on Form 8-Ka description of all compensation and amendmentsother relationships during the past three years between the stockholder and the proposed nominee;
any other information relating to those reports, if any, or other filings filed or furnishedthe proposed nominee required to be disclosed pursuant to Section 13(a) or 15(d)14 of the Securities Exchange Act of 1934, as amended, or the Exchange Act, proxyAct; and
the proposed nominee’s written consent to serve as a director if elected.
The nominating and governance committee may require any proposed nominee recommended by a stockholder to furnish such other information statements. All reportsas the nominating and governance committee may reasonably require, including, among other things, information to determine the eligibility of such person to serve as an independent director or that could be material to a stockholder’s understanding of the independence, or lack thereof, of such person.
Corporate Governance Guidelines; Code of Business Conduct and Ethics
We have established a corporate governance program to help guide our Company and our employees, officers and directors in carrying out their responsibilities and duties, as well as to set standards for their professional conduct. Our board of directors has adopted Corporate Governance Guidelines, or Governance Guidelines, which provide standards and practices of corporate governance that we filehave designed to help contribute to our success and to assure public confidence in our Company. In addition, all standing committees of our board of directors operate under charters that describe the responsibilities and practices of each committee. The charters of our standing committees are available on the Investor Relations page of our corporate website at investors.performantcorp.com under the Corporate Governance tab.
We have adopted a Conflict of Interest and Ethics Policy, or Ethics Policy, which provides ethical standards and corporate policies that apply to all of our officers and employees. Our Ethics Policy requires, among other things, that our officers and employees act with integrity and the highest ethical standards, comply with laws and other legal requirements, avoid conflicts of interest, and otherwise act in our best interests. We have also adopted a Code of Ethics for Senior Financial Officers and Directors that applies to senior management and directors and provides for accurate, full, fair and timely financial reporting and the reporting of information related to significant deficiencies in internal controls, fraud and legal compliance.
ITEM 11. EXECUTIVE COMPENSATION
Executive Compensation
Compensation Philosophy and Objectives
Our compensation philosophy is to align executive compensation with the SEC may be read and copied at the SEC’s Public Reference Room at 100 F Street, N.E., Washington, DC, 20549. Information about the operation of the Public Reference Room can be obtained by calling the SEC at 1-800-SEC-0330.
ITEM 1A. Risk Factors
Our business, financial condition, results of operations and liquidity are subject to various risks and uncertainties, including those described below, and as a result, the trading priceinterests of our common stock could decline.
Risks Relatedstockholders and therefore to Our Business
Our agreements with the Departmentestablish financial objectives that our board of Education and CMS, twodirectors believes are primary determinants of long-term stockholder value. The primary goal of our largest customers, are currently subjectexecutive compensation program is to rebidding processes, and our failure to renew these agreements or a renewal on less favorable terms would have a significant negative impact on our revenues and results of operations.
Our existing contracts with the Department of Education and CMS are currently subject to rebidding processes. The Department of Education and CMS were responsible for approximately 27.2% and 14.9% of our revenue for the year ended December 31, 2014, respectively and 20.2% and 26.2% of our revenue for the year ended December 31, 2013, respectively. We understand that five other recovery service providers under the current contract have recently received notice from the Department of Education stating an intention to extend their existing contracts past April 2015, which is the expiration date for the current contract. To date, we have not received notice of any such extension from the Department of Education, and we are unsure whether we will be provided any such extension of our current contract or when the new contracts will be awarded. We do not believe the Department of Education has completed the current contract extension process. However, due to the timing of the rehabilitation process for loans placed with us by the Department of Education, we expect there will be a minimal impact on our revenues in 2015 if we do not receive an extension of our current contract. Despite notice of their intent to extend the current contract for five recovery service providers, we believe the Department of Education is not permitted to selectively extend the contract for individual recovery service providers. We are also currently participating in a competitive bidding process for the next RAC contract, but this process has been and may continue to be delayed, including by ongoing litigation related to the bidding process, protests following the award of contracts or other factors. While we believe our performance under existing contracts with the Department of Education and CMS and the experience we have gained in performing under these contracts position us well to renew both of these agreements, continued delays in the award of the new contracts, failure to retain either of these agreements or a significant adverse change in the terms of either of these agreements upon any renewal would seriously harm our revenues and our operating results.
The transition rules implemented by CMS in connection with the award of the new RAC contract and the delays associated with the award of the new RAC contract will have an adverse impact on our revenues.
Our ability to make claims under our existing RAC contract continues to be limited by contract transition rules announced by CMS. In this regard, CMS suspended our ability to request medical records for audit during a significant portion of the fourth quarter of 2013 and all of 2014 other than a brief period in January and February 2014, beginning again in August 2014 through year end. Recently, CMS announced that it extended our existing RAC contract through December 31, 2015, but has not indicated the type of audit activities and the scope of procedures we will be allowed to conduct during this extended period. In addition, even during periods of permitted audit activity, CMS has placed restrictions on the types of claims and the amount of certain medical records requestsensure that we may make during the transition period,hire and CMS has generally maintainedretain talented and experienced executives who are motivated to achieve or exceed our short-term and long-term corporate goals. Our executive compensation programs are designed to reinforce a long‑running prohibition on requesting medical records from PIP providers. These transition rules have had a material adverse effect on our revenues during the year ended December 31, 2014. Our revenues from CMS during the year ended December 31, 2014 were $29.2 million, compared to $66.8 million during the year ended December 31, 2013. Our revenues under this contract will be further diminished during the 2015 calendar year. In addition, a litigation regarding a protest involving three of the four new RAC contracts is ongoing, which has resulted in an injunction barring the award of three of the four new RAC contracts. A fifth RAC contract, which is a new type of RAC contract covering the identification and recovery of improper claims for durable medical equipment, prosthetics, orthotics and supplies and home health and hospice claims, was not covered by the injunction and was awarded to another party in January 2015. We are not a party to this litigation. CMS has stated that
the injunction will delay the award of the three RAC contracts that are subject to the injunction until the judge’s ruling on the injunction, which is not expected to occur until summer 2015. It is uncertain whether CMS will award the RAC contract not covered by the injunction in the interim period or wait to award all of the new RAC contracts at the same time. As a result of the delays in the award of the new RAC contract and the restrictions on our audit activities under the existing contract, we expect the reduction in healthcare revenues will have a material adverse effect on our revenues for 2014 and 2015. In addition, if we are successful in obtaining a new RAC contract with CMS, we expect there will be an approximate four to six month period until we start to recognize revenue after the award is made.
Our current or future indebtedness could adversely affect our business and financial condition and reduce the funds available to us for other purposes, and our failure to comply with the covenants contained in our senior secured credit facility could result in an event of default that could adversely affect our results of operations.
As of December 31, 2014, our estimated total debt was $111.8 million. For the year ended December 31, 2014 our consolidated interest expense was $10.2 million. Our ability to make scheduled payments or to refinance our debt obligationsstrong pay-for-performance orientation and to fundserve the following purposes:
to reward our other liquidity needs depends on ournamed executive officers for sustained financial and operating performance which is subject and leadership excellence;
to factors specific to our business, such as maintaining our agreementsalign their interests with our key clients, as well as prevailing economic and competitive conditions and to certain financial, business and other factors beyond our control. We cannot make assurances that we will maintain a level of cash flows from operating activities sufficient to permit us to pay the principal and interest on our indebtedness and to fund our other liquidity needs. If our cash flows and capital resources are insufficient to fund our debt service obligations and allow us to maintain compliance with the financial covenants and other covenants under our senior secured credit facility or to fund our other liquidity needs, we may be forced to reduce or delay capital expenditures, sell assets or operations, seek additional capital or restructure or refinance our indebtedness. We cannot ensure that we would be able to take any of these actions, that these actions would be successful and permit us to meet our scheduled debt service obligations or that these actions would be permitted under the termsthose of our existing or future debt agreements, includingstockholders; and
to encourage our senior secured credit facility. If we cannot make scheduled payments on our debt, we will be in default and, as a result, our debt holders could declare all outstanding principal and interestnamed executive officers to be due and payable, our lenders could foreclose against the assets securing our borrowings and we could be forced into bankruptcy or liquidation.
Our debt agreements contain, and any agreements to refinance our debt likely will contain, financial and restrictive covenants that limit our ability to incur additional debt, including to finance future operations or other capital needs, and to engage in other activities that we may believe are in our long‑term best interests, including to dispose of or acquire assets or make capital expenditures. These covenants also require us to maintain certain financial ratios, including a fixed charge coverage ratio, total debt to EBITDA ratio and an interest coverage ratio, as well as minimum EBITDA and adjusted cash amounts. While our current projections for 2015 show that we will remain in compliance with these financial covenants throughout 2015, given the reduction in our revenues as a result of the ongoing delays in the award of new contracts by the Department of Education and the new RAC contracts from CMS, and the uncertainty as to when these contracts will be awarded, there can be no assurance that we can maintain compliance with these financial covenants. In particular, our current projections, assuming we do not make any other adjustments to reduce our expenses, show that we will be narrowly in compliance with several of our covenants during the second half of 2015. Our failure to comply with these covenants may result in an event of default, which, if not cured or waived, could accelerate the maturity of our indebtedness or result in modifications to our credit terms. If our indebtedness is accelerated, we may not have sufficient cash resources to satisfy our debt obligations, our lenders could foreclose against the assets securing our borrowings and we could be forced into bankruptcy or liquidation.
Revenues generated from our four largest clients represented 70% of our revenues for the year ended December 31, 2014, and 75% of our revenues for the year ended December 31, 2013, and any termination of or deterioration in our relationship with any of these clients would result in a decline in our revenues.
We derive a substantial majority of our revenues from a limited number of clients, including the Department of Education, CMS and two GAs. Revenues from our four largest clients represented 70% of our revenues for the year ended December 31, 2014 and 75% of our revenues for the year ended December 31, 2013. All of our contracts with these clients are subject to periodic renewal and re-bidding processes and if we lose one of these clients or if the terms of our relationships with any of these clients become less favorable to us, our revenues would decline, which would harm our business, financial condition and results of operations.
Many of our contracts with our clients for the recovery of student loans and other receivables are not exclusive and do not commit our clients to provide specified volumes of business. In addition, the terms of these contracts may be changed unilaterally and on short notice by our clients. As a consequence, there is no assurance that we will be able to maintain our revenues and operating results.
Substantially all of our existing contracts for the recovery of student loans and other receivables, which represented approximately83% of our revenues in 2014 and 74% of our revenues in the year ended December 31, 2013, enable our clients to unilaterally terminate their contractual relationship with us at any time without penalty, potentially leading to loss of business or renegotiation of terms. Further, most of our contracts in these markets allow our clients to unilaterally change the volume of loans and other receivables that are placed with us or the payment terms at any given time. In addition, most of our contracts are not exclusive, with our clients retaining multiple service providers with whom we must compete for placements of loans or other obligations. Therefore, despite our contractual relationships with our clients, our contracts do not provide assurance that we will generate a minimum amount of revenues or that we will receive a specific volume of placements.
Our revenues and operating results would be negatively affected if our student loan and receivables clients, which include four of our five largest clients in 2014 and 2013, reduce the volume of student loan placements provided to us, modify the terms of service, including the success fees we are able to earn upon recovery of defaulted student loans, or any of these clients establish more favorable relationships with our competitors. For example, in 2013 in connection with the Department of Education’s decision to have its recovery vendors promote income‑based repayment, or IBR, to defaulted student loans, the Department of Education unilaterally reduced the contingency fee rate that we receive for rehabilitating student loans by approximately 13%. Further, in October 2014, the Department of Education announced a change to a fixed fee of $1,710 payable for each loan that is rehabilitated in place of a recovery fee that historically had been based on a percentage of the balance of the rehabilitated loan.
Over the course of our existing RAC contract, there has been an increase in the number of appeals by healthcare providers to the third, or ALJ, level of appeal relating to claims we have audited, and there can be no assurance that our estimated liability for such appeals will be adequate.
Under our RAC contract with CMS, we recognize revenues when the healthcare provider has paid CMS for a claim or has agreed to an offset against other claims by the provider. Healthcare providers have the right to appeal a claim and may pursue additional levels of appeal if the initial appeal is found in favor of CMS. We accrue an estimated liability for appeals at the time revenue is recognized based on our estimate of the amount of revenue probable of being refunded to CMS following successful appeal based on historical data and other trends relating to such appeals. In addition, if our estimate of liability for appeals with respect to revenues recognized during a prior period changes, we increase or decrease the estimated liability reserve in the current period. Over the course of our existing RAC contract, healthcare providers have increased their pursuit of appeals beyond the first and second levels of appeal to the third level of appeal, where cases are heard by administrative law judges, or ALJs. In our experience, decisions at the third level of appeal are the least favorable as ALJs exercise greater discretion and there is less predictability in the ALJ decisions as compared to appeals at the first or second levels. The pursuit of third level appeals by healthcare providers has also resulted in a backlog of claims at that level of appeal. This increase of ALJ appeals and backlog of claims at the third level of appeal is the primary reason our total estimated liability for appeals (consisting of the estimated liability for appeals plus the contra-accounts-receivable estimated allowance for appeals) has grown from a balance of $5.6 million at December 31, 2012, to $16.4 million at December 31, 2013 to $18.6 million as of December 31, 2014. Our estimates for our appeal reserve are subject to uncertainties, and accordingly we may underestimate the number of successful appeals or the financial impact of successful appeals in a given year or period. To the extent that the amount of commissions that we are required to return to CMS as a result of successful appeals exceeds our estimated appeals reserve, our revenues in the applicable period will be reduced by the amount of such excess. If we underestimate the amount of commissions that are subject to successful appeal, our revenues in future periods could be adversely affected.
Further, CMS recently offered to pay hospitals 68% of what they have billed Medicare to settle a backlog of pending appeals challenging Medicare’s denials of reimbursement for certain types of short‑term care. The implication of this settlement offer related to claims for which recovery auditors have already been paid under existing RAC contracts is uncertain at this time. Any payments we are required to make to CMS under our existing RAC contract in connection with such settlement offer may be significant and in excess of the amount we have reserved for appeals, which could have a material negative impact our financial position and liquidity.
Our ability to derive revenues under our RAC contract will depend in part on the number and types of potentially improper claims that we are allowed to pursue by CMS, and our results of operations may be harmed if the scope of claims that we are allowed to pursue and be compensated for is limited.
Under our existing RAC contract with CMS and any new RAC contract that we enter into upon completion of the current rebidding process with CMS, we are not permitted to and may not seek the recovery of an improper claim unless that particular type of claim has been pre-approved by CMS to ensure compliance with applicable Medicare payment policies, as well as national and local coverage determinations. Accordingly, the long-term growth of the revenues we derive under a RAC contract will also depend in part on CMS expanding the scope of potentially improper claims that we are allowed to pursue. If we are unable to continue to identify improper claims within the types of claims that we are permitted to pursue from time to
time or if CMS does not expand the scope of potentially improper claims that we are allowed to pursue, our results of operations could be adversely affected.
In addition, CMS has implemented rules that prevent RAC contractors from being able to review and audit (i) whether inpatient care delivered to patients with hospital stays lasting less than two midnights was medically necessary and therefore deserving of the higher reimbursement levels under Medicare Part A or (ii) whether inpatient treatment was medically necessary for admissions spanning more than two midnights. In connection with these restrictions, hospitals cannot bill CMS for outpatient services on hospital stays lasting less than two midnights during such period. Fees associated with recoveries initiated by us based upon improper claims for inpatient reimbursement of these short stays have represented a substantial portion of the revenues we have earned under our existing RAC contract. The continued suspension of this type of review activity could have a material adverse effect on our future healthcare revenues and operating results in the event we are successful in obtaining a second RAC contract, depending on a variety of factors including, among other things, CMS’s evaluation of provider compliance with the new rules, the rules ultimately adopted by CMS with respect to medical necessity reviews of Medicare reimbursement claims associated with short stay inpatient admissions and, more generally, the scope of improper claims that CMS allows us to pursue and our ability to successfully identify improper claims within the permitted scope. In connection with the award of the new RAC contract, CMS has indicated that it is reviewing certain aspects of the RAC contract including the amount of medical records that RAC vendors may request and the timeframes for review and communications between RAC vendors and providers.
We face significant competition in connection with obtaining, retaining and performing under our existing client contracts, including our contracts with the Department of Education and CMS, and an inability to compete effectively in the future could harm our relationships with our clients, which would impact our ability to maintain our revenues and operating results.
We operate in very competitive markets. In providing our services to the student loan and other receivables markets, we face competition from many other companies. Initially, we compete with these companies to be one of typically several firms engaged to provide recovery services to a particular client and, if we are successful in being engaged, we then face continuing competition from the client’s other retained firms based on the client’s benchmarking of the recovery rates of its several vendors. In addition, those recovery vendors who produce the highest recovery rates from a client often will be allocated additional placements and in some cases additional success fees. Accordingly, maintaining high levels of recovery performance, and doing so in a cost-effective manner, are important factors in our ability to maintain and grow our revenues and net income and the failure to achieve these objectives could harm our business, financial condition and results of operations. Some of our current and potential competitors in the markets in which we operate may have greater financial, marketing, technological or other resources than we do. The ability of any of our competitors and potential competitors to adopt new and effective technology to better serve our markets may allow them to gain market strength. Increasing levels of competition in the future may result in lower recovery fees, lower volumes of contracted recovery services or higher costs for resources. Any inability to compete effectively in the markets that we serve could adversely affect our business, financial condition and results of operations.
The U.S. federal government accounts for a significant portion of our revenues, and any loss of business from, or change in our relationship with, the U.S. federal government would result in a significant decrease in our revenues and operating results.
We have historically derived and are likely to continue to derive a significant portion of our revenues from the U.S. federal government. For the year ended December 31, 2014, revenues under contracts with the U.S. federal government accounted for approximately 46% of our total revenues, compared to 48% for the year ended December 31, 2013. In addition, fees payable by the U.S. federal government are expected to become a larger percentage of our total revenues over the next several years as a result of legislation that has transferred responsibility for all new student loan origination to the Department of Education. The continuation and exercise of renewal options on existing government contracts and any new government contracts are, among other things, contingent upon the availability of adequate funding for the applicable federal government agency. Changes in federal government spending could directly affect our financial performance.
For example, the Bipartisan Budget Act of 2013, which was signed into law by President Obama on December 26, 2013, reduced the compensation paid to GAs for the rehabilitation of student loans, effective July 1, 2014. This “revenue enhancement” measure reduced from 18.5% to 16.0% of the outstanding loan balance, the amount that GAs can charge borrowers when a rehabilitated loan is sold by the GA and eliminated entirely the GAs retention of 18.5% of the outstanding loan balance as a fee for rehabilitation services. The reduction in compensation the GAs receive resulted in a decrease of approximately 25.0% in the contingency fee percentage that we receive from the GAs for assisting in the rehabilitation of defaulted student loans. Further, in October 2014, the Department of Education announced a new fee structure with respect to payment for rehabilitated loans to provide a fixed fee of $1,710 payable for each loan that is rehabilitated in place of a recovery fee that historically had been based as a percentage of the balance of the rehabilitated loan. Any additional decrease in the
student loan contingency fees would result in a further decrease of our revenues. Further, any amounts that we may be obligated to pay CMS under existing RAC contract as a result of CMS’s recent offer to pay hospitals 68% of what they have billed Medicare to settle a backlog of pending appeals challenging Medicare’s denials of reimbursement for certain types of short‑term care could have a material negative impact our financial position and liquidity. The loss of business from the U.S. federal government, or significant policy changes or financial pressures within the agencies of the U.S. federal government that we serve would result in a significant decrease in our revenues, which would adversely affect our business, financial condition and results of operations.
Future legislative or regulatory changes affecting the markets in which we operate could impair our business and operations.
The two principal markets in which we provide our recovery services, government-supported student loans and the Medicare program, are a subject of significant legislative and regulatory focus and we cannot anticipate how future changes in government policy may affect our business and operations. For example, SAFRA significantly changed the structure of the government-supported student loan market by assigning responsibility for all new government-supported student loan originations to the Department of Education, rather than originations by private institutions and backed by one of 30 government-supported GAs. This legislation, and any future changes in the legislation and regulations that govern these markets, may require us to adapt our business to the new circumstances and we may be unable to do so in a manner that does not adversely affect our business and operations.
Our business relationship with the Department of Education has accounted for a significant portion of our revenues and will take on increasing importance to our business as a result of SAFRA. Our failure to maintain this relationship would significantly decrease our revenues.
While the majority of our historical revenues from the student loan market have come from our relationships with the GAs, as a result of SAFRA, the Department of Education will ultimately become the sole source of revenues in this market, although the GAs will continue to service their existing student loan portfolios for many years to come. As a result, over time, and assuming we are successful in entering into a new contract with the Department of Education under the current rebidding process, defaults on student loans originated by the Department of Education will predominate and our ability to maintain the revenues we had previously received from a number of GA clients will depend on our relationship with a single client, the Department of Education. While we have 24 years of experience in performing student loan recovery services for the Department of Education, we are one of 17 unrestricted recovery service providers on the current Department of Education contract. We understand that five other recovery service providers under the current contract have recently received notice from the Department of Education stating an intention to extend their existing contracts past April 2015, which is the expiration date for the current contract. To date, we have not received notice of any such extension from the Department of Education, and we are unsure whether we will be provided any such extension of our current contract or when the new contracts will be awarded. If our relationship with the Department of Education terminates or deteriorates or if the Department of Education, ultimately as the sole holder of defaulted student loans, requires its contractors to agree to less favorable terms, our revenues would significantly decrease, and our business, financial condition and results of operations would be harmed.
We could lose clients as a result of consolidation among the GAs, which would decrease our revenues.
As a result of SAFRA, which terminated the ability of the GAs to originate government-supported student loans, some have speculated that there may be consolidation among the 29 GAs. This speculation has heightened as a result of the reduction of fees that the GAs will receive for rehabilitating student loans as a result of the Bipartisan Budget Act of 2013. If GAs that are our clients are combined with GAs with whom we do not have a relationship, we could suffer a loss of business. We currently have relationships with 12 of the 29 GAs and two of our GA clients were each responsible for more than 10% of our total revenues in the year ended December 31, 2014 and 2013. The consolidation of our GA clients with others and the failure to provide recovery services to the consolidated entity could decrease our revenues, which could negatively impact our business, financial condition and results of operations.
Our results of operations may fluctuate on a quarterly or annual basis and cause volatility in the price of our stock.
Our revenues and operating results could vary significantly from period-to-period and may fail to match our past performance because of a variety of factors, some of which are outside of our control. Any of these factors could cause the price of our common stock to fluctuate. Factors that could contribute to the variability of our operating results include:
the amount of defaulted student loans and other receivables that our clients place with us for recovery;the long-term.
the timing of placements of student loans and other receivables whichCompensation Determination Process
All compensation decisions for our executive officers are entirely in the discretion of our clients;
the schedules of government agencies for awarding contracts including the impact of any protests filed in connection with the award of any such contracts;
our ability to successfully identify improper Medicare claims and the number and type of potentially improper claims that CMS authorizes us to pursue under our RAC contact;
the loss or gain of significant clients or changes in the contingency fee rates or other significant terms of our business arrangements with our significant clients;
technological and operational issues that may affect our clients and regulatory changes in the markets we service; and
general industry and macroeconomic conditions.
Downturns in domestic or global economic conditions and other macroeconomic factors could harm our business and results of operations.
Various macroeconomic factors influence our business and results of operations. These include the volume of student loan originations in the United States, together with tuition costs and student enrollment rates, the default rate of student loan borrowers, which is impacted by domestic and global economic conditions, rates of unemployment and similar factors, and the growth in Medicare expenditures resulting from changes in healthcare costs. For example, during the global financial crisis beginning in 2008, the market for securitized student loan portfolios was disrupted, resulting in delays in the ability of some GA clients to resell rehabilitated student loans and, as a result, delays our ability to recognize revenues from these rehabilitated loans. Changes in the overall economy could lead to a reduction in overall recovery rates by our clients, which in turn could adversely affect our business, financial condition and results of operations.
We may not be able to manage our growth effectively and our results of operations could be negatively affected.
Our business has expanded significantly, especially in recent years with the expansion of our services in the healthcare market, and we intend to maintain our focus on growth. However, our continued focus on growth and the expansion of our business may place additional demands on our management, operations and financial resources and will require us to incur additional expenses. We cannot be sure that we will be able to manage our growth effectively. In order to successfully manage our growth, our expenses will increase to recruit, train and manage additional qualified employees and subcontractors and to expand and enhance our administrative infrastructure and continue to improve our management, financial and information systems and controls. If we cannot manage our growth effectively, our expenses may increase and our results of operations could be negatively affected.
A failure of our operating systems or technology infrastructure, or those of our third-party vendors and subcontractors, could disrupt the operation of our business.
A failure of our operating systems or technology infrastructure, or those of our third-party vendors and subcontractors, could disrupt our operations. Our operating systems and technology infrastructure are susceptible to damage or interruption from various causes, including acts of God and other natural disasters, power losses, computer systems failures, Internet and telecommunications or data network failures, operator error, computer viruses, losses of and corruption of data and similar events. The occurrence of any of these events could result in interruptions, delays or cessations in service to our clients, reduce the attractiveness of our recovery services to current or potential clients and adversely impact our financial condition and results of operations. While we have backup systems in many of our operating facilities, an extended outage of utility or network services may harm our ability to operate our business. Further, the situations we plan for and the amount of insurance coverage we maintain for losses as result of failures of our operating systems and infrastructure may not be adequate in any particular case.
If our security measures are breached or fail and unauthorized access is obtained to our clients’ confidential data, our services may be perceived as insecure, the attractiveness of our recovery services to current or potential clients may be reduced, and we may incur significant liabilities.
Our recovery services involve the storage and transmission of confidential information relating to our clients and their customers, including health, financial, credit, payment and other personal or confidential information. Although our data security procedures are designed to protect against unauthorized access to confidential information, our computer systems, software and networks may be vulnerable to unauthorized access and disclosure of our clients’ confidential information. Further, we may not effectively adapt our security measures to evolving security risks, address the security and privacy concerns of existing or potential clients as they change over time, or be compliant with federal, state, and local laws and
regulations with respect to securing confidential information. Unauthorized access to confidential information relating to our clients and their customers could lead to reputational damage which could deter our clients and potential clients from selecting our recovery services, or result in termination of contracts with those clients affected by any such breach, regulatory action, and claims against us.
In the event of any unauthorized access to personal or other confidential information, we may be required to expend significant resources to investigate and remediate vulnerabilities in our security procedures, and we may be subject to fines, penalties, litigation costs, and financial losses that are either not insured against or not fully covered through any insurance maintained by us. If one or more of such failures in our security and privacy measures were to occur, our business, financial condition and results of operations could suffer.
Our business may be harmed if we lose members of our management team or other key employees.
We are highly dependent on members of our management team and other key employees and our future success depends in part on our ability to retain these people. Our inability to continue to attract and retain members of our management team and other key employees could adversely affect our business, financial condition and results of operations.
The growth of our healthcare business will require us to hire and retain employees with specialized skills and failure to do so could harm our ability to grow our business.
The growth of our healthcare business will depend in part on our ability to recruit, train and manage additional qualified employees. Our healthcare-related operations require us to hire registered nurses and experts in Medicare coding. Finding, attracting and retaining employees with these skills is a critical component of providing our healthcare-related recovery and audit services, and our inability to staff these operations appropriately represents a risk to our healthcare service offering and associated revenues. An inability to hire qualified personnel, particularly to serve our healthcare clients, may restrain the growth of our business.
We rely on subcontractors to provide services to our clients and the failure of subcontractors to perform as expected could harm our business operations and our relationships with our clients.
We engage subcontractors to provide certain services to our clients. These subcontractors participate to varying degrees in our recovery activities with regards to all of the services we provide. While most of our subcontractors provide specific services to us, we engage one subcontractor to provide all of the audit and recovery services under our contract with CMS within a portion of our region. While we believe that we perform appropriate due diligence before we hire subcontractors, our subcontractors may not provide adequate service or otherwise comply with the terms set forth in their agreements. In the event a subcontractor provides deficient performance to one or more of our clients, any such client may reduce the volume of services we are providing under an existing contract or may terminate the relevant contract entirely and we may face claims for breach of contract. Any such disruption in our relations with our clients as a result of services provided by any of our subcontractors could adversely affect our revenues and operating results.
If our software vendors or utility and network providers fail to deliver or perform as expected our business operations could be adversely affected.
Our recovery services depend in part on third-party providers, including software vendors and utility and network providers. Our ability to service our clients depends on these third-party providers meeting our expectations and contractual obligations in a timely and effective manner. Our business could be materially and adversely affected, and we might incur significant additional liabilities, if the services provided by these third-party providers do not meet our expectations or if they terminate or refuse to renew their relationships with us on similar contractual terms.
We are subject to extensive regulations regarding the use and disclosure of confidential personal information and failure to comply with these regulations could cause us to incur liabilities and expenses.
We are subject to a wide array of federal and state laws and regulations regarding the use and disclosure of confidential personal information and security. For example, the federal Health Insurance Portability and Accountability Act of 1996, as amended, or HIPAA, and related state laws subject us to substantial restrictions and requirements with respect to the use and disclosure of the personal health information that we obtain in connection with our audit and recovery services under our contract with CMS and we must establish administrative, physical and technical safeguards to protect the confidentiality of this information. Similar protections extend to the type of personal financial and other information we acquire from our student loan, state tax and federal receivables clients. We are required to notify affected individuals and government agencies of data security breaches involving protected health and certain personally identifiable information. These laws and regulations also require that we develop, implement and maintain written, comprehensive information security programs containing safeguards
that are appropriate to protect personally identifiable information or health information against unauthorized access, misuse, destruction or modification. Federal law generally does not preempt state law in the area of protection of personal information, and as a result we must also comply with state laws and regulations. Regulation of privacy, data use and security requires that we incur significant expenses, which could increase in the future as a result of additional regulations, all of which adversely affects our results of operations. Failure to comply with these laws and regulations can result in penalties and in some cases expose us to civil lawsuits.
Our student loan recovery business is subject to extensive regulation and consumer protection laws and our failure to comply with these regulations and laws may subject us to liability and result in significant costs.
Our student loan recovery business is subject to regulation and oversight by various state and federal agencies, particularly in the area of consumer protection. The Fair Debt Collection Practices Act, or FDCPA, and related state laws provide specific guidelines that we must follow in communicating with holders of student loans and regulates the manner in which we can recover defaulted student loans. Some state attorney generals have been active in this area of consumer protection regulation. We are subject, and may be subject in the future, to inquiries and audits from state and federal regulators, as well as frequent litigation from private plaintiffs regarding compliance under the FDCPA and related state regulations. We are also subject to the Fair Credit Reporting Act, or FCRA, which regulates consumer credit reporting and may impose liability on us to the extent adverse credit information reported to a credit bureau is false or inaccurate. Our compliance with the FDCPA, FCRA and other federal and state regulations that affect our student loan recovery business may result in significant costs, including litigation costs. We may also become subject to regulations promulgatedmade by the United States Consumer Financial Protection Bureau, or CFPB, which was established in July 2011 as part of the Dodd-Frank Act to, among other things, establish regulations regarding consumer financial protection laws. In addition, the CFPB has investigatory and enforcement authority with respect to whether persons are engaged in unlawful acts or practices in connection with the collection of consumer debts. On April 12, 2013, we received a Civil Investigative Demand, or a CID, from the CFPB requesting production of documents and answers to questions generally related to the Company’s debt collection practices and procedures. The CFPB has not alleged a violation by us of any law or regulation. We responded to the CID, but have not been examined by the CFPB. In light of the possibility that the CFPB may issue interpretative regulations for the FDCPA, the issuance of such regulations could adversely affect our business and results of operations if we are not able to adapt our services and client relationships to meet any new regulatory structure that might be required.
In addition, changing laws, regulations and standards relating to corporate governance and public disclosure are creating uncertainty for public companies, increasing legal and financial compliance costs and making some activities more time consuming. These laws, regulations and standards are subject to varying interpretations, in many cases due to their lack of specificity, and, as a result, their application in practice may evolve over time as new guidance is provided by regulatory and governing bodies. This could result in continuing uncertainty regarding compliance matters and higher costs necessitated by ongoing revisions to disclosure and governance practices. We will continue to invest resources to comply with evolving laws, regulations and standards, and this investment may result in increased general and administrative expenses and a diversion of management’s time and attention from revenue-generating activities to compliance activities. If our efforts to comply with new laws, regulations and standards differ from the activities intended by regulatory or governing bodies due to ambiguities related to their application and practice, regulatory authorities may initiate legal proceedings against us and our business may be adversely affected.
However, for as long as we remain an “emerging growth company” as defined in the Jumpstart Our Business Startups Act of 2012, or the JOBS Act, we may take advantage of certain exemptions from various reporting requirements that are applicable to other public companies that are not “emerging growth companies,” including, but not limited to, not being required to comply with the auditor attestation requirements of Section 404 of the Sarbanes-Oxley Act, reduced disclosure obligations regarding executive compensation in our periodic reports and proxy statements, and exemptions from the requirements of holding a nonbinding advisory vote on executive compensation and shareholder approval of any golden parachute payments not previously approved. We may take advantage of these reporting exemptions until we are no longer an “emerging growth company.”
We will remain an “emerging growth company” for up to five years following our initial public offering in August 2012, although if the market value of our common stock that is held by non-affiliates exceeds $700 million as of any June 30 before that time, our revenues exceed $1 billion, or we issue more than $1 billion in non-convertible debt in a three-year period, we would cease to be an “emerging growth company” as of the following December 31.
As a result of disclosure of information as a public company, our business and financial condition have become more visible, which we believe may result in threatened or actual litigation, including by competitors and other third parties. If such claims are successful, our business operations and financial results could be adversely affected, and even if the claims do not result in litigation or are resolved in our favor, these claims, and the time and resources necessary to resolve them, could divert
the resources of our management and adversely affect our business operations and financial results. These factors could also make it more difficult for us to attract and retain qualified employees, executive officers andindependent members of our board of directors.
Failuredirectors, generally following the recommendation of our compensation committee. Typically, our Chief Executive Officer makes recommendations to achieve and maintain effective internal controls in accordance with Section 404 of Sarbanes-Oxley would impair our abilitycompensation committee regarding compensation for our executive officers, provided, however, that our Chief Executive Officer makes no recommendations as to produce accurate and reliable financial statements, which would harm our stock price.
Weher own compensation. Our compensation committee’s recommendations are subject to reporting obligations under Section 404 of the Sarbanes-Oxley Act that require us to include a management reportbased on our internal control over financial reporting in our annual report, which contains management’sits assessment of the effectivenessperformance of our internal control over financial reporting. These requirements first applied to our annual report on Form 10-K for the year ended December 31, 2013Company and complying with these requirements can be difficult. For example, in June 2012, we determined that we had incorrectly accounted for our mandatorily redeemable preferred stock, which required audit adjusting entries for the three-year period ended December 31, 2011. Our failure to detect this error was deemed to be a deficiency in internal control and this deficiency was considered to be a material weakness. To address this situation, our independent registered public accounting firm recommended that the Company emphasize the importance of thoroughly researching all new accounting policies and revisiting accounting policies set for existing transactions when changes in the business or reporting requirements occur or are expected to occur. To prevent issues like these in the future, we have bolstered our technical accounting expertise and, where appropriate, engaged outside consultants with specialized knowledge.
Our management may conclude that our internal control over our financial reporting is not effective. We have limited accounting personnel and other resources with which to address our internal controls and procedures. If we fail to timely achieve and maintain the adequacy of our internal control over financial reporting, we may not be able to produce reliable financial reports or help prevent fraud. Our failure to achieve and maintain effective internal control over financial reporting could prevent us from filing our periodic reports on a timely basis, which could result in the loss of investor confidence in the reliability of our financial statements, harm our business and negatively impact the trading price of our common stock.
We are required to disclose changes made in our internal controls and procedures on a quarterly basis. However, our independent registered public accounting firm is not required to formally attest to the effectiveness of our internal control over financial reporting pursuant to Section 404 until such time that we are no longer an “emerging growth company” as defined in the JOBS Act, if we continue to take advantage of the exemptions contained in the JOBS Act. At such time, our independent registered public accounting firm may issue a report that is adverse in the event it is not satisfied with the level at which our controls are documented, designed or operating. Our remediation efforts may not enable us to avoid a material weakness in the future.
Litigation may result in substantial costs of defense, damages or settlement, any of which could subject us to significant costs and expenses.
We are party to lawsuits in the normal course of business, particularly in connection with our student loan recovery services. For example, we are regularly subject to claims that we have violated the guidelines and procedures that must be followed under federal and state laws in communicating with consumer debtors. We may not ultimately prevail or otherwise be able to satisfactorily resolve any pending or future litigation, which may result in substantial costs of defense, damages or settlement. In the future, we may be required to alter our business practices or pay substantial damages or settlement costs as a result of litigation proceedings, which could adversely affect our business operations and results of operations.
We typically face a long period to implement a new contract which may cause us to incur expenses before we receive revenues from new client relationships.
If we are successful in obtaining an engagement with a new client or a new contract with an existing client, we typically have a subsequent long implementation period in which the services are planned in detail and we integrate our technology, processes and resources with the client’s operations. If we enter into a contract with a new client, we typically will not receive revenues until implementation is completed and work under the contract actually begins. Our clients may also experience delays in obtaining approvals or delays associated with technology or system implementations, such as the delays experienced with the implementation of our RAC contract with CMS due to an appeal by competitors who were unsuccessful in bidding on the contract. Because we generally begin to hire new employees to provide services to a new client once a contract is signed, we may incur significant expenses associated with these additional hires before we receive corresponding revenues under any such new contract. If we are not successful in maintaining contractual commitments after the expenses we incur during our typically long implementation cycle, our results of operations could be adversely affected.
If we are unable to adequately protect our proprietary technology, our competitive position could be harmed or we could be required to incur significant costs to enforce our rights.
The success of our business depends in part upon our proprietary technology platform. We rely on a combination of copyright, patent, trademark, and trade secret laws,each individual executive officer, as well as other factors, such as prevailing industry trends. In making recommendations on confidentiality proceduressalaries, annual incentives and non-compete agreements,equity compensation in 2014, our compensation committee retained the services of compensation consultant Compensia, Inc. to establishassist in designing our executive compensation program and protect our proprietary technology rights. The steps we have taken to deter misappropriationin identifying market benchmarks for purposes of our proprietary technology may be insufficient to protect our proprietary information. In particular, we may not be able to protect our trade secrets, know‑howevaluating the reasonableness and other proprietary information adequately. Although we use reasonable efforts to protect this proprietary information and technology, our employees, consultants and other parties may unintentionally or willfully disclose our information or technology to competitors. Enforcing a claim that a third party illegally obtained and is using any of our proprietary information or technology is expensive and time consuming, and the outcome is unpredictable. We rely, in part, on non‑disclosure, confidentiality and invention assignment agreements with our employees, consultants and other parties to protect our trade secrets, know‑how and other intellectual property and proprietary information. These agreements may not be self‑executing, or they may be breached and we may not have adequate remedies for such breach. Moreover, third parties may independently develop similar or equivalent proprietary information or otherwise gain access to our trade secrets, know‑how and other proprietary information. Any infringement, misappropriation or other violation of our patents, trademarks, copyrights, trade secrets, or other intellectual property rights could adversely affect any competitive advantage we currently derive or may derive from our proprietary technology platform and we may incur significant costs associated with litigation that may be necessary to enforce our intellectual property rights.
Claims by others that we infringe their intellectual property could force us to incur significant costs or revise the way we conduct our business.
Our competitors protect their proprietary rights by means of patents, trade secrets, copyrights, trademarks and other intellectual property. Any party asserting that we infringe, misappropriate or violate their intellectual property rights may force us to defend ourselves, and potentially our clients, against the alleged claim. These claims and any resulting lawsuit, if successful, could be time-consuming and expensive to defend, subject us to significant liability for damages or invalidation of our proprietary rights, prevent us from operating all or a portion of our business or force us to redesign our services or technology platform or cause an interruption or cessation of our business operations, any of which could adversely affect our business and operating results. In addition, any litigation relating to the infringement of intellectual property rights could harm our relationships with current and prospective clients. The riskcompetitiveness of such claimsprogram.
Compensation committee. Our compensation committee consists of Messrs. Ford, W. Hansen and lawsuits could increase if we increase the sizeFluegel. Mr. W. Hansen serves as chairperson of this committee. Our compensation committee met four times in 2014. Our compensation committee reviews and scope of our services in our existing markets or expand into new markets.
We may make acquisitions that prove unsuccessful, strain or divert our resources and harm our results of operations and stock price.
We may consider acquisitions of other companies in our industry or in new markets. We may not be able to successfully complete any such acquisition and, if completed, any such acquisition may fail to achieve the intended financial results. We may not be able to successfully integrate any acquired businesses with our own and we may be unable to maintain our standards, controls and policies. Further, acquisitions may place additional constraints on our resourcesmakes recommendations for approval by diverting the attention of our management from other business concerns. Moreover, any acquisition may result in a potentially dilutive issuance of equity securities, the incurrence of additional debt and amortization of expenses related to intangible assets, all of which could adversely affect our results of operations and stock price.
The price of our common stock could be volatile, and you may not be able to sell your shares at or above the public offering price.
Since our initial public offering in August 2012, the price of our common stock, as reported by NASDAQ Global Select Market, has ranged from a low sales price of $3.65 on January 29, 2015 to a high sales price of $14.09 on March 4, 2013. The trading price of our common stock may be significantly affected by various factors, including: quarterly fluctuations in our operating results; the financial projections we may provide to the public, any changes in those projections or our failure to meet those projections; changes in investors’ and analysts’ perception of the business risks and conditions of our business; our ability to meet the earnings estimates and other performance expectations of financial analysts or investors; unfavorable commentary or downgrades of our stock by equity research analysts; changes in our capital structure, such as future issuances of debt or equity securities; lawsuits threatened or filed against us; strategic actions by us or our competitors, such as acquisitions or restructurings; new legislation or regulatory actions; changes in our relationship with any of our significant clients; fluctuations in the stock prices of our peer companies or in stock markets in general; and general economic conditions.
Our significant stockholders have the ability to influence significant corporate activities and our significant stockholders' interests may not coincide with yours.
Parthenon Capital Partners and Invesco Ltd. beneficially owned approximately 27.4% and 19.9% of our common stock, respectively, as of December 31, 2014. As a result of their ownership, Parthenon Capital Partners and Invesco Ltd. have
the ability to influence the outcome of matters submitted to a vote of stockholders and, through our board of directors regarding our general compensation policies and the ability to influence decision‑making with respectcompensation provided to our business directiondirectors and policies. Parthenon Capital Partnersexecutive officers. The compensation committee also reviews and Invesco Ltd. may have interests different from our other stockholders’ interests, and may vote in a manner adverse to those interests. Matters over which Parthenon Capital Partners and Invesco Ltd. can, directly or indirectly, exercise influence include:
mergers and other business combination transactions, including proposed transactions that would result in our stockholders receiving a premium pricemakes recommendations for their shares;
other acquisitions or dispositions of businesses or assets;
incurrence of indebtedness and the issuance of equity securities;
repurchase of stock and payment of dividends; and
the issuance of shares to management under our equity incentive plans.
In addition, Parthenon Capital Partners has a contractual right to designate a number of directors proportionate to its stock ownership. Further, under our amended and restated certificate of incorporation, Parthenon Capital Partners does not have any obligation to present to us, and Parthenon Capital Partners may separately pursue, corporate opportunities of which it becomes aware, even if those opportunities are ones that we would have pursued if granted the opportunity.
Anti-takeover provisions contained in our certificate of incorporation and bylaws could impair a takeover attempt that our stockholders may find beneficial.
Our amended and restated certificate of incorporation and amended and restated bylaws contain provisions that could have the effect of rendering more difficult or discouraging an acquisition deemed undesirableapproval by our board of directors. Our corporate governance documents includedirectors regarding bonuses for our officers and other employees. In addition, the following provisions: establishing a classifiedcompensation committee reviews and makes recommendations for approval by our board of directors soregarding equity-based compensation for our directors and executive officers, approves equity based compensation for other employees and administers our stock option plans and employee stock purchase plan. Our compensation committee is composed entirely of independent directors.
Compensation Committee Interlocks and Insider Participation
No interlocking relationship exists between our board of directors or compensation committee and the board of directors or compensation committee of any other entity, nor has any interlocking relationship existed in the past.
Elements of Compensation
The primary components of compensation for our Chief Executive Officer and our two other most highly compensated executive officers in fiscal year 2014, whom we refer to as the named executive officers, were base salary, annual incentive compensation and equity-based compensation.
Base Salary
We pay our named executive officers a base salary based on the experience, skills, knowledge and responsibilities required of each officer, as well as base salaries of executive officers at companies we view as competitors. We believe base salaries are an important element in our overall compensation program because base salaries provide a fixed element of compensation that reflects job responsibilities and value to us.
Annual Incentive Plan
To date, our board of directors has not all membersadopted a formal plan or set of formal guidelines with respect to annual incentive or bonus payments, and has rather relied on an annual assessment of the performance of our board are elected at one time;executives during the preceding year to make annual incentive and bonus determinations.
Long-Term Equity Compensation
We provide our named executive officers with long-term equity compensation through our 2012 Stock Incentive Plan. We believe that providing that directors may be removed by stockholders only for cause; authorizing blank check preferred stock, which could be issuedour named executive officers with voting, liquidation, dividend and other rights superior to our common stock; limiting the ability of our stockholders to call and bring business before special meetings and to take action by written consentan equity interest brings their interests in lieu of a meeting; limiting our ability to engage in certain business combinationsline with any “interested stockholder,” other than Parthenon Capital Partners, for a three-year period following the time that the stockholder became an interested stockholder; requiring advance notice of stockholder proposals for business to be conducted at meetingsthose of our stockholders and that including a vesting component to those equity interests encourages named executive officers to remain with us for nominationsthe long-term. Long-term incentive awards are made under our 2012 Stock Incentive Plan, under which we are authorized to issue stock options, restricted stock or other equity-based awards denominated in shares of candidatesour common stock. The plan is administered by the compensation committee, and the compensation committee recommends grants for election to our board of directors; requiring a super majority voteexecutive officers for certain amendments to our amended and restated certificate of incorporation and amended and restated bylaws; and limiting the determination of the number of directors onapproval by our board of directors, and is authorized to make awards or delegate the filling of vacancies or newly created seats onauthority to make awards to employees other than the board, toexecutive officers. The committee also sets the standard terms for awards under the plan each year.
On March 17, 2015, the compensation committee recommended, and our board of directors then in office. These provisions, alone or together, could have the effect of delaying or deterring a change in control, could limit the opportunity for our stockholders to receive a premium for their shares of our common stock, and could also affect the price that some investors are willing to pay for our common stock.
ITEM 1B. Unresolved Staff Comments
None.
ITEM 2. Properties
Facilities
As of December 31, 2014, we operated six separate office locations throughout the United States. The largest of these facilities is in Livermore, California and serves as our corporate headquarters, as well as a data center and production location. Our Livermore facility is comprised of approximately 50,291 square feet of space and has a lease expiration of October 2021. We also lease production centers in California, Oregon, Florida and Texas and own a production/data center in Oregon.
We believe that our facilities are adequate for current operations and that additional space will be available as required. See note (6) to our consolidated financial statements included elsewhere in this Annual Report on Form 10-K for information regarding our lease obligations.
ITEM 3. Legal Proceedings
We are involved in various legal proceedings that arise from our normal business operations. These actions generally derive from our student loan recovery services, and generally assert claims for violations of the Fair Debt Collection Practices Act or similar federal and state consumer credit laws. While litigation is inherently unpredictable, we believe that none of these legal proceedings, individually or collectively, will have a material adverse effect on our financial condition or our results of operations.
ITEM 4. Mine Safety Disclosures
Not applicable.
PART II
ITEM 5. Market for Registrant’s Common Equity, Related Stockholder Matters and Issuer Purchases of Equity Securities
Market For Our Common Equity
Our common stock began trading on the NASDAQ Global Select Market under the symbol “PFMT” on August 10, 2012. Prior to that, there was no public market for our common stock. The table sets forth, for the periods indicated below, the high and low sales prices per share of our common stock as reported by NASDAQ since August 10, 2012.
|
| | | | |
| 2012 | | High | | Low |
| Third Quarter (beginning August 10, 2012) | | 12.18 | | 9.20 |
| Fourth Quarter | | 11.84 | | 7.55 |
| 2013 | | | | |
| First Quarter | | 14.09 | | 10.06 |
| Second Quarter | | 13.26 | | 9.25 |
| Third Quarter | | 12.01 | | 10.27 |
| Fourth Quarter | | 11.02 | �� | 9.26 |
| 2014 | | | | |
| First Quarter | | 11.56 | | 7.11 |
| Second Quarter | | 10.32 | | 8.10 |
| Third Quarter | | 10.97 | | 8.04 |
| Fourth Quarter | | 9.02 | | 5.95 |
On March 12, 2015, the closing price as reported by NASDAQ of our common stock was $3.90 per share.
Stockholders
As of December 31, 2014, we had approximately 10 holders of record of our common stock.
Dividends
Our board of directors does not currently intend to pay regular dividends on our common stock. Our credit agreement contains a covenant prohibiting the payment of cash dividends.
Securities Authorized for Issuance Under Equity Compensation Plans
Information regarding the securities authorized for issuance under our equity compensation plans can be found under Item 12 of this Annual Report on Form 10-K.
Issuer Purchases of Equity Securities
None.
ITEM 6. Selected Financial Data
The selected consolidated balance sheet data as of December 31, 2014 and 2013, and the selected consolidated statements of operations data for each year ended December 31, 2014, 2013 and 2012, have been derived from our audited consolidated financial statements which are included elsewhere in this annual report. The selected consolidated balance sheet data as of December 31, 2011 and 2010, and the selected consolidated statements of operations data for the years ended December 31, 2011 and 2010 have been derived from our audited consolidated financial statements not included in this annual
report. Historical results are not necessarily indicative of future results. You should read the following selected consolidated historical financial data below in conjunction with the section titled “Management’s Discussion and Analysis of Financial Condition and Results of Operations” and the consolidated financial statements, related notes, and other financial information included in this Annual Report on Form 10-K. The selected consolidated financial data in this section is not intended to replace the consolidated financial statements and is qualified in its entirety by the consolidated financial statements and related notes and schedule included in this Annual Report on Form 10-K.
|
| | | | | | | | | | | | | | | | | | | |
| | Year Ended December 31, |
| | 2014 | | 2013 | | 2012 | | 2011 | | 2010 |
| | (in thousands) |
| Consolidated Statement of Operations Data: | | | | | | |
| Revenues | $ | 195,378 |
| | $ | 255,302 |
| | $ | 210,073 |
| | $ | 162,974 |
| | $ | 123,519 |
|
| Operating expenses: | | | | | | | | | |
| Salaries and benefits | 93,676 |
| | 96,762 |
| | 83,002 |
| | 67,082 |
| | 58,113 |
|
| Other operating expense | 74,433 |
| | 85,671 |
| | 71,305 |
| | 49,199 |
| | 33,655 |
|
| Impairment of trade name | — |
| | — |
| | — |
| | 13,400 |
| | — |
|
| Total operating expenses | 168,109 |
| | 182,433 |
| | 154,307 |
| | 129,681 |
| | 91,768 |
|
| Income from operations | 27,269 |
| | 72,869 |
| | 55,766 |
| | 33,293 |
| | 31,751 |
|
Debt extinguishment costs(1) | — |
| | — |
| | (3,679 | ) | | — |
| | — |
|
| Interest expense | (10,171 | ) | | (11,564 | ) | | (12,414 | ) | | (13,530 | ) | | (15,230 | ) |
| Interest income | 1 |
| | 1 |
| | 64 |
| | 125 |
| | 118 |
|
| Income before provision for income taxes | 17,099 |
| | 61,306 |
| | 39,737 |
| | 19,888 |
| | 16,639 |
|
| Provision for income taxes | 7,699 |
| | 24,967 |
| | 16,786 |
| | 7,516 |
| | 6,664 |
|
| Net income | 9,400 |
| | 36,339 |
| | 22,951 |
| | 12,372 |
| | 9,975 |
|
| Accrual for preferred stock dividends | — |
| | — |
| | 2,038 |
| | 6,495 |
| | 5,771 |
|
| Net income available to common shareholders | $ | 9,400 |
| | $ | 36,339 |
| | $ | 20,913 |
| | $ | 5,877 |
| | $ | 4,204 |
|
Net income per share attributable to common shareholders(2) | | | | | | | | | |
| Basic | $ | 0.19 |
| | $ | 0.77 |
| | $ | 0.48 |
| | $ | 0.14 |
| | $ | 0.10 |
|
| Diluted | $ | 0.19 |
| | $ | 0.74 |
| | $ | 0.44 |
| | $ | 0.13 |
| | $ | 0.09 |
|
| Weighted average shares (in thousands) | | | | | | | | | |
| Basic | 48,816 |
| | 47,492 |
| | 43,985 |
| | 42,962 |
| | 42,962 |
|
| Diluted | 49,834 |
| | 49,386 |
| | 47,599 |
| | 45,742 |
| | 45,019 |
|
| |
(1) | Represents debt extinguishment costs comprised of approximately $3.3 million of fees paid to lenders in connection with our new credit facility and approximately $0.3 million of unamortized debt issuance costs in connection with our old credit facility. |
| |
(2) | Please see Note 1 to our consolidated financial statements for an explanation of the calculations of our basic and diluted net income per share of common stock. |
|
| | | | | | | | | | | | | | | | | | | |
| | As of December 31, |
| | 2014 | | 2013 | | 2012 | | 2011 | | 2010 |
| | (in thousands) |
| Consolidated Balance Sheet Data: | | | | | | | | | |
| Cash and cash equivalents | $ | 80,298 |
| | $ | 81,909 |
| | $ | 37,843 |
| | $ | 20,004 |
| | $ | 11,078 |
|
| Total assets | 262,829 |
| | 257,260 |
| | 211,745 |
| | 182,299 |
| | 181,390 |
|
| Total debt | 111,795 |
| | 133,304 |
| | 147,769 |
| | 103,383 |
| | 117,331 |
|
| Total liabilities | 171,657 |
| | 183,026 |
| | 187,672 |
| | 139,756 |
| | 151,231 |
|
| Redeemable preferred stock | — |
| | — |
| | — |
| | 58,248 |
| | 51,753 |
|
| Total stockholders’ (deficit) equity | 91,172 |
| | 74,234 |
| | 24,073 |
| | (15,705 | ) | | (21,594 | ) |
ITEM 7. Management’s Discussion and Analysis of Financial Condition and Results of Operations
Overview
We provide technology-enabled recovery and related analytics services in the United States. Our services help identify and recover delinquent or defaulted assets and improper payments for both government and private clients in a broad range of markets. Our clients typically operate in complex and regulated environments and outsource their recovery needs in order to reduce losses on billions of dollars of defaulted student loans, improper healthcare payments and delinquent state tax and federal treasury and other receivables. We generally provide our services on an outsourced basis, where we handle many or all aspects of our clients’ recovery processes.
Our revenue model is generally success-based as we earn fees on the aggregate amount of funds that we enable our clients to recover. Our services do not require any significant upfront investments by our clients and offer our clients the opportunity to recover significant funds otherwise lost. Because our model is based upon the success of our efforts and the dollars we enable our clients to recover, our business objectives are aligned with those of our clients and we are generally not reliant on their spending budgets. Furthermore, our business model does not require significant capital expenditures and we do not purchase loans or obligations.
Recent Developments
On January 28, 2015, we entered into an Agreement and Plan of Merger (“Merger Agreement”) with Premier Healthcare Exchange, Inc., a Delaware corporation (“PHX”), pursuant to which, PHX would become our wholly-owned indirect subsidiary. The Merger Agreement contains customary closing conditions, including completion of a financing by us to fund the consideration payable under the terms of the Merger Agreement. The purchase price under the Merger Agreement is approximately $108 million in cash, subject to certain adjustments, and certain PHX stockholders will also exchange shares for $22 million of our common stock. We also could be obligated to pay up to an additional $19.1 million in cash pursuant to an earnout arrangement based on PHX in revenues in 2015. On January 28, 2015 we announced proposed concurrent public offerings of $80 million aggregate principal amount of convertible senior notes due 2020 and $50 million of shares of our common stock to finance the cash portion of the consideration payable under the Merger Agreement. On January 30, 2015, we announced our decision to withdraw the proposed public offerings of convertible senior notes and common stock. The Merger Agreement is currently terminable by either us or PHX without penalty, except that we are obligated to pay an expense termination fee of $750,000 in the event the merger is not completed due to our failure to complete the required financing of the consideration payable under the Merger Agreement.
Sources of Revenues
We derive our revenues from services for clients in a variety of different markets. These markets include our two largest markets, student lending and healthcare, as well as our other markets which include but are not limited to delinquent state taxes and federal Treasury and other receivables.
|
| | | | | | | | | | | |
| | Year Ended December 31, |
| | 2014 | | 2013 | | 2012 |
| | (in thousands) |
| Student Lending | $ | 138,275 |
| | $ | 163,708 |
| | $ | 132,445 |
|
| Healthcare | 32,526 |
| | 67,531 |
| | 54,747 |
|
| Other | 24,577 |
| | 24,063 |
| | 22,881 |
|
| Total Revenues | $ | 195,378 |
| | $ | 255,302 |
| | $ | 210,073 |
|
Student Lending
We derive the majority of our revenues from the recovery of student loans. These revenues are contract-based and consist primarily of contingency fees based on a specified percentage of the amount we enable our clients to recover. Our contingency fee percentage for a particular recovery depends on the type of recovery facilitated. We also receive incremental performance incentives based upon our performance as compared to other contractors with the Department of Education, which are comprised of additional inventory allocation volumes and incentive fees. We are currently subject to a competitive rebidding process for the next contract with the Department of Education. We understand that five other recovery service providers under the current contract have recently received notice from the Department of Education stating an intention to extend their existing contracts past April 2015, which is the expiration date for the current contract. To date, we have not received notice of any such extension from the Department of Education and we are unsure whether we will be provided any such extension of our current contract or when the new contracts will be awarded. We do not believe the Department of Education has completed the current contract extension process. However, due to the timing of the rehabilitation process for loans placed with us by the Department of Education, we expect there will be a minimal impact on our revenues in 2015 if we
do not receive an extension of our current contract. Despite notice of their intent to extend the current contract for five recovery service providers, we believe the Department of Education is not permitted to selectively extend the contract for individual recovery service providers.
We believe the size and the composition of our student loan inventory at any point provides us with a significant degree of revenue visibility for our student loan revenues. Based on data compiled from over two decades of experience with the recovery of defaulted student loans, at the time we receive a placement of student loans, we are able to make a reasonably accurate estimate of the recovery outcomes likely to be derived from such placement and the revenues we are likely able to generate based on the anticipated recovery outcomes.
There are five potential outcomes to the student loan recovery process from which we generate revenues. These outcomes include: full repayment, recurring payments, rehabilitation, loan restructuring and wage garnishment. Of these five potential outcomes, our ability to rehabilitate defaulted student loans is the most significant component of our revenues in this market. Generally, a loan is considered successfully rehabilitated after the student loan borrower has made nine consecutive qualifying monthly payments and our client has notified us that it is recalling the loan. Once we have structured and implemented a repayment program for a defaulted borrower, we (i) earn a percentage of each periodic payment collected up to and including the final periodic payment prior to the loan being considered “rehabilitated” by our clients, and (ii) if the loan is “rehabilitated,” then we are paid a one-time percentage of the total amount of the remaining unpaid balance. As stated above, effective July 2015, our contract with the Department of Education will provide for a fixed fee of $1,710 for each rehabilitated loan. The fees we are paid vary by recovery outcome as well as by contract. For non-government-supported student loans we are generally only paid contingency fees on two outcomes: full repayment or recurring repayments. The table below describes our typical fee structure for each of these five outcomes.
Student Loan Recovery Outcomes
|
| | | | | | | | |
Full Repayment | | Recurring Payments | | Rehabilitation | | Loan Restructuring | | Wage Garnishment |
• Repayment in full of the loan | | • Regular structured payments, typically according to a renegotiated payment plan | | • After a defaulted borrower has made nine consecutive recurring payments, the loan is eligible for rehabilitation | | • Restructure and consolidate a number of outstanding loans into a single loan, typically with one monthly payment and an extended maturity | | • If we are unable to obtain voluntary repayment, payments may be obtained through wage garnishment after certain administrative requirements are met |
• We are paid a percentage of the full payment that is made | | • We are paid a percentage of each payment | | • We are paid based on a percentage of the overall value of the rehabilitated loan or for the Department of Education, a fixed fee | | • We are paid based on a percentage of overall value of the restructured loan | | • We are paid a percentage of each payment |
For certain guaranty agency, or GA, clients, we have entered into Master Service Agreements, or MSAs. Under these agreements, clients provide their entire inventory of outsourced loans or receivables to us for recovery on an exclusive basis, rather than just a portion, as with traditional contracts that are split among various service providers. In certain circumstances, we engage subcontractors to assist in the recovery of a portion of the client’s portfolio. We also receive success fees for the recovery of loans under MSAs and our revenues under MSA arrangements include fees earned by the activities of our subcontractors. As of December 31, 2014, we had three MSA clients in the student loan market.
In October 2014, the Department of Education announced a change in the structure for the payment of fees to recovery contractors upon rehabilitation of student loans under the existing recovery contract. The new fee structure provides for a fixed fee of $1,710 for each loan that is rehabilitated. Previously, the fee had been based on a percentage of the principal amount of the rehabilitated loan. The change to the fee structure will be effective for student loans that are rehabilitated on or following July 1, 2015.
Further, the Bipartisan Budget Act of 2013, which was signed into law by President Obama on December 26, 2013, reduced the compensation paid to GAs for the rehabilitation of student loans, effective July 1, 2014. This “revenue enhancement” measure reduced from 18.5% to 16.0% of the outstanding loan balance, the amount that GAs can charge borrowers when a rehabilitated loan is sold by the GA and eliminated entirely the GAs retention of 18.5% of the outstanding loan balance as a fee for rehabilitation services. The reduction in compensation the GAs receive resulted in a decrease in the contingency fee percentage that we receive from the GAs for assisting in the rehabilitation of defaulted student loans.
We expect that our revenues from student lending in 2015 will be approximately 20% lower than in 2014. The fee reductions from the Department of Education and the GAs discussed above contribute to this expected decrease. Other contributing factors include an increase in the number of student loans eligible for rehabilitation due to income based repayment, which has the effect of reducing the number of loan consolidations which have a shorter payment cycle, and continuing delays in the recognition of some revenues due to additional documentation requirements for income based repayment first imposed during the third quarter of 2014.
Healthcare
We derive revenues from the healthcare market primarily from our RAC contract, under which we are the prime contractor responsible for detecting improperly paid Part A and Part B Medicare claims in 12 states in the Northeastern United States. Revenues earned under the RAC contract are driven by the identification of improperly paid Medicare claims through both automated and manual review of such claims. We are paid contingency fees by CMS based on a percentage of the dollar amount of claims recovered by CMS as a result of our efforts. We recognize revenue when the provider pays CMS or incurs an offset against future Medicare claims. The revenues we recognize are net of our estimate of claims that will be overturned by appeal following payment by the provider.
We are currently involved in a competitive rebidding process for four new RAC contracts with CMS. The timing of new RAC contract awards remains uncertain. The bidding process has been delayed, at least in part, by pre‑award protests and, following the denial of those protests, by ongoing litigation. The plaintiffs in the litigation are seeking the elimination of payment terms under the proposed new RAC contracts that would prohibit RACs from being compensated for improper claims until a second level of appeal has been exhausted. A decision in favor of CMS was subject to appeal in which the appellate court recently remanded the case back to lower court to rule on the merits of the case. There is a related injunction barringlater approved, the award of threeperformance-based restricted stock units to certain of our executive officers. The award covers 150,000 shares and is intended to tie our executives’ compensation to the performance of the four new RAC contracts pending resolutionCompany while also reducing the dilutive effect of this litigation. A fifth RAC contract, which is a new type of RAC contract covering the identification and recovery of improper claims for durable medical equipment, prosthetics, orthotics and supplies and home health and hospice claims, was not covered by the injunction and was awardedequity awards to another party in January 2015.our stockholders. The Company is not a party to this litigation. CMS has statedcompensation committee believes that the injunction will delay the award of the three contracts until the judge’s ruling on the injunction, which is not expected to occur until late summer 2015. It is uncertain whether CMS will award the RAC contract not covered by the injunction in the interim period or will wait to award all of the new RAC contracts at the same time.
In anticipation of the award of new RAC contracts, beginning in 2013 CMS has adopted a series of contract transition procedures that have restricted our ability to request medical records for audit, thus adversely affected our revenues under this contract. No records requests were permitted in July 2013 and then from November 15, 2013 through year end. In January 2014, records requests were again permitted through February 21, 2014 and claim activity was permitted through June 1, 2014, when work under the contract stopped. In addition to these periods of suspended activity, the contract transition rules have limited scope of our permitted audit activities as CMS has generally not permitted audits of PIP providers and has also placed additional restrictions on the types of claims we are permitted to audit and number of medical records we are permitted to request. CMS began to permit claim reviews again in August 2014 for an unspecified period, but has restricted the type of reviews and the types of claims subject to audit. CMS also recently announced that it extended our existing RAC contract through December 31, 2015, with the same audit limitations continuing during this extended period. CMS has further indicated they may, at their discretion, approve additional issues that we will be permitted to review and audit during the RAC contract extension period. Absent a significant change in the scope of the permitted audit activities, we expect that our revenues from the RAC contract will be significantly lower in 2015 as compared to 2014.
In connection with our RAC contract, CMS has announced a settlement offer to pay hospitals 68% of what they have billed Medicare to settle a backlog of pending appeals challenging Medicare's denials of reimbursement for certain types of short-term care. The implication of this settlement offer related to claims for which fees have already been paid to recovery auditors under existing RAC contracts is unclear at this time, but we may be obligated to repay certain amounts that we previously received from CMS depending on the final terms of any such settlement. We accrue an estimated liability for appeals based on the amount of commissions received which are subject to appeal and which we estimate are probable of being returned to providers following successful appeal. The $18.6 million balance as of December 31, 2014, represents our best estimate of the probable amount of we may be required to refund related to appeals of claims for which commissions were previously collected. We estimate that it is reasonably possible that we could be required to pay an additional amount up to approximately $5.4 million as a result of potentially successful appeals in excess of the amount we accrued as of December 31, 2014.
To accelerate our ability to provide Medicare audit and recovery services across our region following our award of our initial RAC contract, we outsourced certain aspects of our healthcare recovery process to three different subcontractors. Two of these subcontractors provide a specific service to us in connection with our claims recovery process, and one subcontractor is engaged to provide all of the audit and recovery services for claims withinhaving a portion of our region. We recognize all of the
revenues generated by the claims recovered through these subcontractor relationships, and we recognize the fees that we pay to these subcontractors in our expenses.
Our business strategy is focused on utilizing our technology-enabled services platform to provide audit, recovery and analytical services for private healthcare payors. We have entered into contracts with several private payors, although these contracts areexecutives’ long-term incentive compensation in the early stageform of implementation.
Other
We also derive revenues fromfull-value shares is best correlated with performance by including a performance vesting condition on the recovery of delinquent state taxes, and federal Treasury and other receivables, default aversion services for certain clients including financial institutions and the licensing of hosted technology solutions to certain clients. For our hosted technology services, we license our system and integrate our technology into our clients’ operations, for which we are paidawards. Each performance share award made in March 2015 will vest over a licensing fee. Our revenues for these services include contingency fees, feesthree year period based on dedicated headcount to our clients and hosted technology licensing fees.
Operating Metrics
We monitor a numberattainment of operating metrics in order to evaluate our business and make decisions regarding our corporate strategy. These key metrics include Placement Volume, Placement Revenue as a Percentage of Placement Volume, Net Claim Recovery Volume and Claim Recovery Fee Rate.
|
| | | | | | | | | | | |
| | Year Ended December 31, |
| | 2014 | | 2013 | | 2012 |
| | (dollars in thousands) |
| Student Lending: | | | | | |
| Placement Volume | $ | 6,679,403 |
| | $ | 6,607,485 |
| | $ | 5,768,945 |
|
| Placement Revenue as a percentage of Placement Volume | 2.07 | % | | 2.48 | % | | 2.30 | % |
| Healthcare: |
| |
| |
|
| Net Claim Recovery Volume | $ | 287,829 |
| | $ | 598,071 |
| | $ | 482,202 |
|
| Claim Recovery Fee Rate | 11.30 | % | | 11.29 | % | | 11.35 | % |
Placement Volume. Our Placement Volume represents the dollar volume of defaulted student loans first placed with us during the specified period by public and private clients for recovery. Placement Volume allows us to measure and track trends in the amount of inventory our clients in the student lending market are placing with us during any period. The revenues associated with the recovery of a portion of these loans may be recognized in subsequent accounting periods, which assists management in estimating future revenues and in allocating resources necessary to address current Placement Volumes.
Placement Revenue as a Percentage of Placement Volume. Placement Revenue as a Percentage of Placement Volume is calculated by dividing revenues recognized during the specified period by Placement Volume first placed with us during that same period. This metric is subject to some level of variation from period to period based upon certain timing differences including, but not limited to, the timing of placements received by us within a period and the fact that a significant portion of revenues recognized in a current period is often generated from the Placement Volume received in prior periods. However, we believe that this metric provides a useful indication of the revenues we are generating from Placement Volumes on an ongoing basis and provides management with an indication of the relative efficiency of our recovery operations from period to period.
Net Claim Recovery Volume. Our Net Claim Recovery Volume measures the dollar volume of improper Medicare claims that we have recovered for CMS during the applicable period net of any amount that we have reserved to cover appeals by healthcare providers. We are paid recovery fees as a percentage of this recovered claim volume. We calculate this metric by dividing our claim recovery revenues by our Claim Recovery Fee Rate. This metric shows trends in the volume of improper payments within our region and allows management to measure our success in finding these improper payments, over time.
Claim Recovery Fee Rate. Our Claim Recovery Fee Rate represents the weighted-average percentage of our fees compared to amounts recovered by CMS. This percentage primarily depends on the method of recovery and, in some cases, the type of improper payment that we identify. This metric helps management measure the amount of revenues we generate from Net Claim Recovery Volume.
Costs and Expenses
We generally report two categories of operating expenses: salaries and benefits and other operating expense. Salaries and benefits expenses consist primarily of salaries andpre-established performance incentives paid and benefits provided to our employees. Other operating expense includes expenses related to our use of subcontractors, other production related expenses, including costs associated with data processing, retrieval of medical records, printing and mailing services, amortization and other outside services, as well as general corporate and administrative expenses. We expect a significant portion of our expenses to increase as we grow our business. However, we expect certain expenses, including our corporate and general administrative expenses, to grow at a slower rate than our revenues. As a result, and over the long term, we expect our overall expenses to modestly decline as a percentage of revenues.
Factors Affecting Our Operating Results
Our results of operations are influenced by a number of factors, including allocation of placement volume, claim recovery volume, contingency fees, regulatory matters, client retention and macroeconomic factors.
Allocation of Placement Volume
Our clients have the right to unilaterally set and increase or reduce the volume of defaulted student loans or other receivables that we service at any given time. In addition, many of our recovery contracts for student loans and other receivables are not exclusive, with our clients retaining multiple service providers to service portions of their portfolios. Accordingly, the number of delinquent student loans or other receivables that are placed with us may vary from time to time, which may have a significant effect on the amount and timing of our revenues. We believe the major factors that influence the number of placements we receive from our clients in the student loan market include our performance under our existing contracts and our ability to perform well against competitors for a particular client. To the extent that we perform well under our existing contracts and differentiate our services from those of our competitors, we may receive a relatively greater number of placements under these existing contracts and may improve our ability to obtain future contracts from these clients and other potential clients. Further, delays in placement volume, as well as acceleration of placement volume, from any of our large clients may cause our revenues and operating results to vary from quarter to quarter.
Typically we are able to anticipate with reasonable accuracy the timing and volume of placements of defaulted student loans and other receivables based on historical patterns and regular communication with our clients. Occasionally, however, placements are delayed due to factors outside of our control. For example, a technology system upgrade at the Department of Education significantly decreased the volume of student loan placements by the Department of Education to all recovery vendors, including us. While we and the other recovery vendors received substantially larger placement volume in the fourth quarter of 2012 as a result of the completion of this technology system upgrade, the majority of the revenues from these placements were not recognized until the third quarter of 2013 because we do not begin to earn rehabilitation revenues from a given placement until at least nine months after receipt of a placement. In addition, for approximately twelve months beginning in September 2011, the Department of Education was not able to process a portion of rehabilitated student loans and accordingly we were not able to recognize certain revenues associated with rehabilitation of loans for this client. However, the Department of Education continued to pay us based on invoices submitted and we recorded these cash receipts as deferred revenues on our balance sheet.
Claim Recovery Volume
While we are entitled to review Medicare records for all Part A and Part B claims in our region, we are not permitted to identify an improper claim unless that particular type of claim has been pre-approved by CMS to ensure compliance with applicable Medicare payment policies, as well as national and local coverage determinations. The growth of our revenues is determined primarily by the aggregate volume of Medicare claims in our region and our ability to identify improper payments within these claims. However, the long-term growth of these revenues will also be affected by the scope of the issues pre-approved by CMS.
CMS has made changes to the permitted audit scope during the course of the RAC contract that have had a significant effect on our revenues. For example, in September 2013, CMS announced that beginning October 1, 2013, we and the other RAC contractors would not be able to review and audit (i) whether inpatient care delivered to patients with hospital stays lasting less than two midnights was medically necessary and therefore deserving of the higher reimbursement levels under Medicare Part A or (ii) whether inpatient treatment was medically necessary for admissions spanning more than two midnights. In connection with these restrictions, hospitals cannot bill CMS for inpatient services on hospital stays lasting less than two midnights. Fees associated with recoveries initiated by us based upon improper claims for inpatient reimbursement of these short stays had represented a substantial portion of the revenues we have earned under our existing RAC contract. The continued suspension of this type of review activity or restrictions on other types of review activities could have a material adverse effect on our healthcare revenues and operating results.
In addition, in planning for the award of the next RAC contracts, CMS has implemented transition procedures that have significantly affected our operations during the transition period by placing restrictions on the types of claims and the amount of certain medical records requests that we may make during the transition period, and by suspending records requests during other periods.
Contingency Fees
Our revenues consist primarily of contract-based contingency fees. The contingency fee percentages that we earn are set by our clients or agreed upon during the bid process, and may change from time to time either under the terms of existing contracts or pursuant to the terms of contract renewals. For example, the fees that we earn under our contractual arrangement with the Department of Education have been subject to unilateral change by the Department of Education as a result of the Department of Education’s decision to have its recovery vendors promote IBR to defaulted student loans. The IBR program provides flexibility on the required monthly payment for student loan borrowers at an amount intended to be affordable based on a borrower’s income and family size. As a result of the increased application of the IBR program to defaulted student loans, we expect that there will be an increase in the number of loans that become eligible for rehabilitation because more defaulted student loan borrowers will be able to make qualifying payments. In connection with the implementation of the IBR program, the Department of Education initially reduced the contingency fee rate that we receive for rehabilitating student loans by approximately 13% effective March 1, 2013.
Further, in October 2014, the Department of Education announced a change to a fixed fee of $1,710 payable for each loan that is rehabilitated in place of a recovery fee that historically had been based on a percentage of the balance of the rehabilitated loan.
Regulatory Matters
Each of the markets which we serve is highly regulated. Accordingly, changes in regulations that affect the types of loans, receivables and claims that we are able to service or the manner in which any such delinquent loans, receivables and claims can be recovered will affect our revenues and results of operations. For example, the passage of the Student Aid and Fiscal Responsibility Act, or SAFRA, in 2010 had the effect of transferring the origination of all government-supported student loans to the Department of Education, thereby ending all student loan originations guaranteed by the GAs. Loans guaranteed by the GAs represented approximately 70% of government-supported student loans originated in 2009. While the GAs will continue to service existing outstanding student loans for years to come, this legislation will over time shift the portfolio of student loans that we manage toward the Department of Education, and further concentrate our sources of revenues and increase our reliance on our relationship with the Department of Education. In addition, our entry into the healthcare market was facilitated by passage of the Tax Relief and Health Care Act of 2006, which mandated CMS to contract with private firms to audit Medicare claims in an effort to increase the recovery of improper Medicare payments. Any changes to the regulations that affect the student loan industry or the recovery of defaulted student loans or the Medicare program generally or the audit and recovery of Medicare claims could have a significant impact on our revenues and results of operations.
Client Retention
Our revenues from the student loan market depend on our ability to maintain our contracts with some of the largest providers of student loans. In 2014 and 2013, three providers of student loans each accounted for more than 10% of our revenues and they collectively accounted for 55% and 49%, respectively of our total revenues during such periods. Our contract with the Department of Education, which generated 27.2% of our revenues in 2014, is currently the subject to a competitive bidding process. Our contracts with these clients entitle them to unilaterally terminate their contractual relationship with us at any time without penalty. If we lose one of our significant clients, including if one of our significant clients is consolidated by an entity that does not use our services, if the terms of compensation for our services change or if there is a reduction in the level of placements provided by any of these clients, our revenues could decline.
Our contract with CMS for the recovery of improper Medicare payments began generating significant revenues during 2011 and represented 14.9% and 26.2% of our total revenuesgoals for the year ending December 31, 2015 and the executives’ continued service with our Company during the performance period. The performance awards remain subject to shareholder approval as described in “Proposal 3 Approval of our Amended and Restated 2012 Stock Incentive Plan.”
Other Supplemental Benefits
Our named executive officers are eligible for the following benefits on a similar basis as other eligible employees:
health, dental and vision insurance;
vacation, personal holidays and sick days;
life insurance and supplemental life insurance;
short-term and long-term disability; and
401(k) plan.
Summary Compensation Table
The following table presents information concerning the total compensation of our named executive officers for services rendered to us in all capacities for the fiscal years ended December 31, 2014 and December 31, 2013, respectively. Our audit work under our existing RAC contract expired in June 2014, but we have been permitted to resume certain audit work with respect to a limited number of claims pursuant to a contract extension that runs through December 31, 2015. We are currently participating in a competitive bidding process for the next RAC contract. The award of the new RAC contracts has been delayed due in part to a bid protest followed by a lawsuit and a subsequent appeal process which is still underway. Pending a decision on appeal, the contract award process has been enjoined. While we believe our performance under the existing agreement and the experience we have gained in performing this contract position us well to renew the agreement, failure to renew the agreement or renewal on substantially less favorable terms could significantly harm our revenues and results of operations.
Macroeconomic Factors
Certain macroeconomic factors influence our business and results of operations. These include the increasing volume of student loan originations in the U.S. as a result of increased tuition costs and student enrollment, the default rate of student loan borrowers, the growth in Medicare expenditures resulting from increasing healthcare costs, as well as the fiscal budget tightening of federal, state and local governments as a result of general economic weakness and lower tax revenues.
Critical Accounting Policies
Our consolidated financial statements are prepared in accordance with generally accepted accounting principles in the United States, or GAAP. The preparation of these consolidated financial statements requires us to make estimates and assumptions that affect the reported amounts of assets, liabilities, revenues, costs and expenses and related disclosures. We base our estimates on historical experience and on various other assumptions that we believe to be reasonable under the circumstances. In many instances, we could have reasonably used different accounting estimates, and in other instances changes in the accounting estimates are reasonably likely to occur from period-to-period. Accordingly, actual results could differ significantly from the estimates made by our management. To the extent that there are material differences between these estimates and actual results, our future financial statement presentation, financial condition, results of operations and cash flows will be affected. We believe that the accounting policies discussed below are critical to understanding our historical and future performance, as these policies relate to the more significant areas involving management’s judgments and estimates.
Revenue Recognition
The majority of our contracts are contingency fee based. We recognize revenues on these contingency fee based contracts when third-party payors remit payments to our clients or remit payments to us on behalf of our clients, and, consequently, the contingency is deemed to have been satisfied. Under our RAC contract with CMS, we recognize revenues when the healthcare provider has paid CMS for a claim or has agreed to an offset against other claims by the provider. Healthcare providers have the right to appeal a claim and may pursue additional level of appeals if the initial appeal is found in favor of CMS. We accrue an estimated liability for appeals at the time revenue is recognized based on our estimate of the amount of revenue probable of being returned to CMS following successful appeal based on historical data and other trends relating to such appeals. In addition, if our estimate of liability for appeals with respect to revenues recognized during a prior period changes, we increase or decrease the estimated liability for appeals in the current period.
This estimated liability for appeals is an offset to revenues on our income statement. Resolution of appeals can take a very long time to resolve and there is a significant backlog in the system for resolving appeals, as over the course of our existing RAC contract, healthcare providers have increased their pursuit of appeals beyond the first and second levels of appeals to the third level of appeal, where cases are heard by administrative law judges, or ALJs. In our experience, decisions at the third level of appeal are the least favorable as ALJs exercise greater discretion and there is less predictability in the ALJ decisions as compared to appeals at the first or second levels. This increase of ALJ appeals and backlog of claims at the third level of appeal is the primary reason our total estimated liability for appeals (consisting of the estimated liability for appeals plus the contra-accounts-receivable estimated allowance for appeals) has grown from a balance of $5.6 million at December 31, 2012, to $16.4 million at December 31, 2013 to $18.6 million as of December 31, 2014. The balance of the estimated liability for appeals was also increased because during 2014 we observed an increase in the percentage of appeals that are being found in providers’ favor at the ALJ level.
The $18.6 million balance as of December 31, 2014, represents our best estimate of the probable amount of losses related to appeals of claims for which commissions were previously collected. We estimate that it is reasonably possible that we could be required to pay up to an additional approximately $5.4 million as a result of potentially successful appeals. To the extent that required payments by us related to successful appeals exceed the amount accrued, revenues in the applicable period would be reduced by the amount of the excess.
Goodwill
We periodically review the carrying value of intangible assets not subject to amortization, including goodwill, to determine whether an impairment may exist. GAAP requires that goodwill and certain intangible assets not subject to amortization be assessed annually for impairment using fair value measurement techniques.
We assess goodwill for impairment on an annual basis as of December 31 of each year or more frequently if an event occurs or changes in circumstances would more likely than not reduce the fair value of a reporting unit below its carrying amount. We have the option to perform a qualitative assessment to determine if an impairment is more likely than not to have occurred. If we can support the conclusion that it is more likely than not that the fair value of a reporting unit is greater than its carrying amount, then we would not need to perform the two-step impairment test. If we cannot support such a conclusion, or we do not elect to perform the qualitative assessment, then the first step of the goodwill impairment test is used to identify
potential impairment by comparing the fair value of a reporting unit with its carrying amount, including goodwill. The Company performed a qualitative assessment of whether it is more likely than not that goodwill fair value is less than its carrying amount for 2014, 2013 and 2012 and concluded that there was no need to perform an impairment test.
Impairments of Depreciable Intangible Assets
The balance of depreciable intangible assets was $29.1 million as of December 31, 2014. We evaluate depreciable intangible assets for impairment whenever events or changes in circumstances indicate that the carrying amount of such assets may not be recoverable. Depreciable intangible assets consist of client contracts and related relationships, and are being amortized over their estimated useful life, which is generally 20 years. We evaluate the client contracts intangible at the individual contract level. The recoverability of such assets is measured by a comparison of the carrying amount of the assets to future undiscounted net cash flows expected to be generated by the assets. If the assets are considered to be impaired, the impairment to be recognized is measured by the amount by which the carrying amount of the assets exceeds the fair value of the assets. There was no impairment expense for depreciable intangible assets in 2014, 2013 or 2012.
Results of Operations
Year Ended December 31, 2014 compared to the Year Ended December 31, 2013
The following table represents our historical operating results for the periods presented:2013:
|
| | | | | | | | | | | | | | |
| | Year Ended December 31, | | | | |
| | 2014 | | 2013 | | $ Change | | % Change |
| | (in thousands) |
| Consolidated Statements of Operations Data: | | | | | | | |
| Revenues | $ | 195,378 |
| | $ | 255,302 |
| | $ | (59,924 | ) | | (23 | )% |
| Operating expenses: |
| |
| |
| |
|
| Salaries and benefits | 93,676 |
| | 96,762 |
| | (3,086 | ) | | (3 | )% |
| Other operating expense | 74,433 |
| | 85,671 |
| | (11,238 | ) | | (13 | )% |
| Total operating expenses | 168,109 |
| | 182,433 |
| | (14,324 | ) | | (8 | )% |
| Income from operations | 27,269 |
| | 72,869 |
| | (45,600 | ) | | (63 | )% |
| Interest expense | (10,171 | ) | | (11,564 | ) | | 1,393 |
| | (12 | )% |
| Interest income | 1 |
| | 1 |
| | — |
| | — | % |
| Income before provision for income taxes | 17,099 |
| | 61,306 |
| | (44,207 | ) | | (72 | )% |
| Provision for income taxes | 7,699 |
| | 24,967 |
| | (17,268 | ) | | (69 | )% |
| Net income | $ | 9,400 |
| | $ | 36,339 |
| | $ | (26,939 | ) | | (74 | )% |
Revenues
Total revenues were $195.4 million for the year ended December 31, 2014, a decrease of $59.9 million or 23%, compared to total revenues of $255.3 million for the year ended December 31, 2013. The decrease is due to a decline in revenues in both our student lending and healthcare markets.
Student lending revenues were $138.3 million for the year ended December 31, 2014, representing a decrease of $25.4 million, or 16%, compared to the year ended December 31, 2013. This decrease was primarily due to lower rehabilitation fees paid to us by our guaranty agency clients a result of the reduction that guaranty agencies can charge borrowers due to the Federal budget act that became effective July 1,2014, and to new documentation requirements imposed by our guaranty agency clients as they implemented income-based repayment programs. The new documentation requirements require additional time and interaction with borrowers, which delayed some loans from qualifying for rehabilitation during 2014.
Healthcare revenues were $32.5 million for the year ended December 31, 2014, representing a decrease of $35.0 million, or 52%, compared to the year ended December 31, 2013. This decrease was due primarily to reduced audit activity in 2014 as the result of the wind-down of our current RAC contract, resulting in substantially reduced levels of permitted healthcare audit and recovery activities.
Salaries and Benefits
Salaries and benefits expense was $93.7 million for the year ended December 31, 2014, a decrease of $3.1 million, or 3%, compared to salaries and benefits expense of $96.8 million for the year ended December 31, 2013. The decrease in salaries and benefits expense was primarily due to lower bonus expense.
Other Operating Expense
Other operating expense was $74.4 million for the year ended December 31, 2014, a decrease of $11.2 million, or 13%, compared to other operating expense of $85.7 million for the year ended December 31, 2013. The decrease in other operating expenses was primarily due to lower third party collection fees and lower communication and postage expense resulting from the wind-down of our current RAC contract.
Income from Operations
As a result of the factors described above, income from operations was $27.3 million for the year ended December 31, 2014, compared to $72.9 million for the year ended December 31, 2013, representing a decrease of $45.6 million, or 63%.
Interest Expense
Interest expense was $10.2 million for the year ended December 31, 2014 compared to $11.6 million for the year ended December 31, 2013, representing a decrease of 12%. Interest expense decreased due to repayments of principal under our credit agreement, resulting in a lower outstanding balance during 2014.
Income Taxes
Income tax expense was $7.7 million for the year ended December 31, 2014 compared to $25.0 million for the year ended December 31, 2013, representing a decrease of 69%, consistent with the decrease in income before provision for income taxes in 2014. Our effective income tax rate increased to 45% for the year ended December 31, 2014 from 41% for the year ended December 31, 2013. The increase in the effective tax rate is primarily the result of an approximately 5.5% increase in the state tax rate. The 2013 effective tax rate includes a one-time tax expense due to the non-deductible expenses associated with the follow on offerings of approximately 1.7%.
Net Income
As a result of the factors described above, net income was $9.4 million for the year ended December 31, 2014, which representing a decrease of $26.9 million compared to net income of $36.3 million for the year ended December 31, 2013.
Year Ended December 31, 2013 compared to the Year Ended December 31, 2012
The following table presents our historical operating results for the periods presented:
|
| | | | | | | | | | | | | | |
| | Year Ended December 31, | | | | |
| | 2013 | | 2012 | | $ Change | | % Change |
| | (in thousands) |
| Consolidated Statement of Operations Data: | | | | | | | |
| Revenues | $ | 255,302 |
| | $ | 210,073 |
| | $ | 45,229 |
| | 22 | % |
| Operating expenses: |
| |
| |
| |
|
| Salaries and benefits | 96,762 |
| | 83,002 |
| | 13,760 |
| | 17 | % |
| Other operating expense | 85,671 |
| | 71,305 |
| | 14,366 |
| | 20 | % |
| Total operating expenses | 182,433 |
| | 154,307 |
| | 28,126 |
| | 18 | % |
| Income from operations | 72,869 |
| | 55,766 |
| | 17,103 |
| | 31 | % |
| Debt extinguishment costs | — |
| | (3,679 | ) | | 3,679 |
| | (100 | )% |
| Interest expense | (11,564 | ) | | (12,414 | ) | | 850 |
| | (7 | )% |
| Interest income | 1 |
| | 64 |
| | (63 | ) | | (98 | )% |
| Income before provision for income taxes | 61,306 |
| | 39,737 |
| | 21,569 |
| | 54 | % |
| Provision for income taxes | 24,967 |
| | 16,786 |
| | 8,181 |
| | 49 | % |
| Net income | 36,339 |
| | 22,951 |
| | 13,388 |
| | 58 | % |
| Accrual for preferred stock dividends | — |
| | 2,038 |
| | (2,038 | ) | | (100 | )% |
| Net income available to common shareholders | $ | 36,339 |
| | $ | 20,913 |
| | $ | 15,426 |
| | 74 | % |
Revenues
Total revenues were $255.3 million for the year ended December 31, 2013, an increase of $45.2 million or 22%, compared to total revenues of $210.1 million for the year ended December 31, 2012. This increase is due to growth in revenues in both our student lending and healthcare markets.
Student lending revenues were $163.7 million for the year ended December 31, 2013, representing an increase of $31.3 million, or 24%, compared to the year ended December 31, 2012. This increase was primarily a result of volume growth of student loan placements during the second half of 2012, which led to an increase in rehabilitation revenues for the year ended December 31, 2013, and continued execution on a contract involving a specialized portfolio of student loans with one of our leading GA clients.
Healthcare revenues were $67.5 million for the year ended December 31, 2013, representing an increase of $12.8 million, or 23%, compared to the year ended December 31, 2012. This increase was primarily a result of higher net claim recovery volume under our RAC contract.
Salaries and Benefits
Salaries and benefits expense was $96.8 million for the year ended December 31, 2013, an increase of $13.8 million, or 17%, compared to salaries and benefits expense of $83.0 million for the year ended December 31, 2012. This increase is primarily due to an increase in employee headcount to support operational growth related to the recovery of student loans.
Other Operating Expense
Other operating expense was $85.7 million for the year ended December 31, 2013, an increase of $14.4 million, or 20%, compared to other operating expense of $71.3 million for the year ended December 31, 2012. This increase is primarily due to increased costs related to our use of subcontractors and consultants, production related expenses associated with data processing, retrieval of medical records, printing and mailing services, and higher spending on professional services related to operating as a public company.
Income from Operations
As a result of the factors described above, income from operations was $72.9 million for the year ended December 31, 2013, compared to $55.8 million for the year ended December 31, 2012, representing an increase of $17.1 million, or 31%.
Debt Extinguishment Costs
We did not incur any debt extinguishment costs for the year ended December 31, 2013. In March 2012, we incurred debt extinguishment costs of $3.7 million in connection with a new credit facility.
Interest Expense
Interest expense was $11.6 million for the year ended December 31, 2013, compared to $12.4 million for the year ended December 31, 2012, representing a decrease of 7%. Interest expense decreased due to repayments of principal under our credit agreement, resulting in a lower outstanding balance during 2013.
Income Taxes
Income tax expense was $25.0 million for the year ended December 31, 2013 compared to $16.8 million for the year ended December 31, 2012, representing an increase of 48.7% consistent with the increase in income before provision for income taxes. Our effective income tax rate decreased to 40.7% for the year ended December 31, 2013 from 42.2% for the year ended December 31, 2012. The decrease in the effective tax rate is the result of approximately 0.7% decrease due to changes in the state tax rate, and approximately 1% decrease due to income tax benefits associated with increases in stock options exercises as a result of two follow on offerings during the year, and the end of the lock-up periods for certain employees. These decreases were offset by approximately a 1.7% increase as a result of the non-deductible expenses associated with the follow on offerings. The 2012 effective tax rate includes a one-time tax expense due to the non-deductible termination of an advisory services agreement of approximately 1.9%.
Net Income
As a result of the factors described above, net income was $36.3 million for the year ended December 31, 2013, which represented an increase of $13.4 million compared to net income of $23.0 million for the year ended December 31, 2012.
Liquidity and Capital Resources
Our principal sources of liquidity are cash flows from operations, term loans, and the proceeds received from our initial public offering in August 2012. Cash and cash equivalents, which totaled $80.3 million as of December 31, 2014, consist primarily of cash on deposit with banks. We expect that operating cash flows will continue to be a primary source of liquidity for our operating needs. There are currently no borrowings outstanding under our revolving credit facility other than a $2.0 million letters of credit. Due to our operating cash flows, and our existing cash and cash equivalents, we believe that we have the ability to meet our working capital and capital expenditure needs for the foreseeable future.
The $1.6 million decrease in the balance of our cash and cash equivalents at December 31, 2014 compared with December 31, 2013 was primarily due to cash generated from operations of $27.9 million during 2014, offset by principal repayments of $21.5 million on our long-term debt and $10.1 million of capital expenditures.
The following table presents information regarding our cash flows for the years ended December 31, 2014, 2013 and 2012:
|
| | | | | | | | | | | |
| | Year Ended December 31, |
| | 2014 | | 2013 | | 2012 |
| | (in thousands) |
| Net cash provided by operating activities | $ | 27,866 |
| | $ | 61,206 |
| | $ | 37,005 |
|
| Net cash used in investing activities | (10,146 | ) | | (12,503 | ) | | (12,193 | ) |
| Net cash used in financing activities | (19,331 | ) | | (4,637 | ) | | (6,973 | ) |
Cash flows from operating activities
Operating activities provided $27.9 million of cash during the year ended December 31, 2014, representing a decrease of $33.3 million, compared to cash provided by operating activities of $61.2 million for the year ended December 31, 2013, primarily due to a reduction of net income to $9.4 million in 2014, an increase in net payable to client of $12.1 million, collection of trade receivables of $4.6 million and an increase in the estimated liability for appeals of $3.3 million associated with our RAC contract with CMS. These items were partially offset by various working capital fluctuations such as an increase in other prepaid expenses and a decrease in accrued salaries and benefits.
Operating activities provided $61.2 million of cash during the year ended December 31, 2013, an increase of $24.2
million, compared to cash provided by operating activities of $37.0 million for the year ended December 31, 2012, primarily
due to net income of $36.3 million, an increase in the estimated liability for appeals of $10.9 million associated with our RAC
contract with CMS, collection of trade receivables of $3.4 million, and an increase in accrued salaries and benefits of $2.5
million. These items were partially offset by various working capital fluctuations such as a decrease in other current liabilities
and deferred revenue. The estimated liability for appeals for revenue associated with CMS totaled $15.3 million in 2013,
compared $4.4 million in 2012, due to higher claim recovery volumes under our RAC contract with CMS.
Operating activities provided $37. 0 million of cash during the year ended December 31, 2012, an increase of $8.0 million, compared to cash provided by operating activities of $29.0 million for the year ended December 31, 2011 primarily due to the increase in net income for the year ended December 31, 2012 to $23.0 million compared to $12.4 million for 2011. Cash used to pay accrued salary and benefits totaled $9.3 million in 2012, as compared to the $7.1 million in accrued salaries and benefits payable for the comparable period in 2011. Accounts payable increased $1.3 million in 2012 compared to 2011, primarily due to timing. The estimated liability for appeals for revenue received from CMS totaled $4.4 million in 2012, compared $0.5 million in 2011, due to the increase of appeals brought by healthcare providers and the overall backlog of claims subject to appeals under our RAC contract with CMS.
Cash flows from investing activities
We used $10.1 million and $12.5 million of cash in investment activities for the purchase of property, equipment and leasehold improvements during the years ended December 31, 2014 and 2013, respectively, primarily for investments in information technology, data storage, hardware, telecommunication systems and security enhancements to our proprietary software.
Investing activities resulted in cash outflow of $12.2 million during the year ended December 31, 2012. The primary uses of cash associated with investing activities in 2012 were $11.4 million for property, equipment and leasehold improvements, to enhance our proprietary technology platform, improve our telecommunications systems, upgrade our IT infrastructure for storage and operating activities, and $0.8 million for the purchase of a perpetual software license.
Cash flows from financing activities
Cash used in financing activities of $19.3 million during the year ended December 31, 2014 primarily due to the repayment of principal on outstanding debt and other contractual obligations of $22.5 million . This was partially offset by an income tax benefit of $3.2 million associated with the exercise of employee stock options, and $0.6 million in proceeds received from the exercise of employee stock options.
Cash used in financing activities of $4.6 million in 2013 was due to the repayment of principal on outstanding debt and other contractual obligations of $15.5 million, offset by an income tax benefit of $9.1 million associated with the exercise of employee stock options, and $1.8 million in proceeds received from the exercise of employee stock options.
For the year ended December 31, 2012, our primary financing activities were $156 million in proceeds from term loans, $12.8 million of net proceeds from our IPO which was completed in August 2012, and $4.5 million in revolving credit facility borrowings. These proceeds were offset by $103.4 million used for the repayment of our old notes payable and repayment of principal on our new term loans, $12.7 million used for the repayment of our old and new lines of credit, $60.3 million used to redeem 5.3 million shares of preferred stock, and $3.1 million used for debt issuance costs.
Estimated liability for appeals and Net payable to client
The December 31, 2014 balances of $18.6 million and $12.1 million for the Estimated liability for appeals and the Net payable to client, respectively, represent obligations that we expect to pay in the near term, although it is difficult to predict the precise timing of the associated cash outflows as they are dependent on the processing and resolution of audit appeals.
Long-term Debt
On March 19, 2012, we, through our wholly owned subsidiary, entered into a $147.5 million credit agreement, as amended and restated, with Madison Capital Funding LLC as administrative agent, ING Capital LLC as syndication agent, and other lenders party thereto. The senior credit facility consists of (i) a $57.0 million term A loan that matures in March 2017, (ii) a $79.5 million term B loan that matures in March 2018, and (iii) a $11.0 million revolving credit facility that expires in March 2017. On June 28, 2012, we amended the credit agreement to increase the amount of our borrowings under our term B loan by $19.5 million. On November 4, 2014, we further amended the credit agreement to modify a number of existing covenants and add certain new covenants.
All borrowings under the credit agreement bear interest at a rate per annum equal to an applicable margin corresponding to our total debt to EBITDA ratio, plus, at our option, either (i) a base rate determined by reference to the highest
of (a) the prime rate published in the Wall Street Journal or another national publication, (b) the federal funds rate plus 0.5%, (c) the sum of (A) the 1-month LIBOR rate and (B) the difference between the then effective applicable margins for LIBOR loans and base rate loans and (d) 2.5% or (ii) a LIBOR rate determined by reference to the highest of (a) a LIBOR rate published in Reuters or another national publication and (b) 1.5%. The term A loan and the revolving credit facility currently have an applicable margin of 4.25% for base rate loans and 5.25% for LIBOR rate loans, in each case based on a total debt to EBITDA ratio of less than 4.00 to 1.00. The term B loan (including the incremental term B loan) currently has an applicable margin of 4.75% for base rate loans and 5.75% for LIBOR rate loans, in each case based on a total debt to EBITDA ratio of less than 4.00 to 1.00. The minimum per annum interest rate that we are required to pay is 6.75% for the term A loan and revolving credit facility and 7.25% for the term B loan. Interest is due at the end of each month for base rate loans and at the end of each LIBOR period for LIBOR rate loans unless the LIBOR period is greater than 3 months, in which case interest is due at the last day of each 3-month interval of such LIBOR period.
The credit agreement requires us to prepay the two term loans on a prorated basis and then to prepay the revolving credit facility under certain circumstances: (i) with 100% of the net cash proceeds of any asset sale or other disposition of assets by us or our subsidiaries where the net cash proceeds exceed $1 million, (ii) with a percentage of our annual excess cash flow each year where such percentage ranges from 25%-75% depending on our total debt to EBITDA ratio reduced by any voluntary prepayments that are made on our term loans during the same period, unless we elect to apply voluntary prepayments in the inverse order of maturity, in which case only voluntary prepayments in excess of $10 million shall reduce the amount of excess cash flow we are required to prepay and (iii) with any net cash proceeds from a qualified initial public offering by us, less net proceeds applied to redeem any outstanding preferred equity or convertible debt, to pay a common shareholder dividend not to exceed $20 million or, if we comply with an adjusted EBITDA ratio set forth in the agreement, to our cash balances in an amount not to exceed $75 million. With respect to (ii) above, the Company made a pro rata prepayment of approximately $11.5 million to the lenders in May 2014.
We have to abide by certain negative covenants for our credit agreement, which limit the ability for our subsidiaries and us to:
incur additional indebtedness;
create or permit liens;
pay dividends or other distributions to our equity holders;
purchase or redeem certain equity interests of our equity holders, including any warrants, options and other security rights;
pay management fees or similar fees to any of our equity holders;
make any redemption, prepayment, defeasance, repurchase or any other payment with respect to any subordinated debt;
consolidate, merge or make any acquisitions;
sell assets, including the capital stock of our subsidiaries;
enter into transactions with our affiliates;
enter into different business lines;
permit the aggregate amount of capital expenditures to exceed a certain amount; and
make investments.
The credit agreement also requires us to meet certain financial covenants, including maintaining (i) a fixed charge coverage ratio, (ii) a total debt to EBITDA ratio, (iii) an interest coverage ratio, (iv) a minimum EBITDA amount,(v) a minimum required adjusted cash amount, and (vi) maximum capital expenditures, as such terms are defined in our credit agreement. These financial covenants are tested at the end of each year, quarter or month, as applicable. The table below further describes these financial covenants, as well as our current status under these covenants as of December 31, 2014.
|
| | |
| Financial Covenant | Covenant Requirement | Actual Ratio at December 31, 2014 |
| Fixed charge coverage ratio (minimum)* | 1.20 to 1.0 | 1.38 |
| Total debt to EBITDA ratio (maximum)* | 3.25 to 1.0 | 2.33 |
| Interest coverage ratio (minimum)** | 2.25 to 1.0 | 5.35 |
| EBITDA (minimum)** | $20,000,000 | $48,052,000 |
| Required Adjusted Cash Amount (minimum)*** | $35,000,000 | $59,313,000 |
| Capital Expenditures **** | $12,500,000 | $10,146,000 |
________
* Covenant requirement as of December 31, 2014. These covenant requirements adjust in future period.
** These requirements became effective December 2014, and will adjust in future periods.
*** This requirement became effective November 4, 2014.
****This requirement is an annual requirement effective December 31, 2014.
Our debt agreements contain, and any agreements to refinance our debt likely will contain, financial and restrictive covenants that limit our ability to incur additional debt, including to finance future operations or other capital needs, and to engage in other activities that we may believe are in our long‑term best interests, including to dispose of or acquire assets or make capital expenditures. These covenants also require us to maintain certain financial ratios, including a fixed charge coverage ratio, total debt to EBITDA ratio and an interest coverage ratio, as well as minimum EBITDA and adjusted cash amounts. Our current projections, assuming we do not have any other adjustments to reduce our expenses, show that we will be narrowly in compliance with several of our covenants during the second half of 2015. However, we believe we can make appropriate reductions in a timely manner in our expense structure in order to maintain compliance with our financial covenants. Due to delays in the award of the new RAC contracts by CMS and pricing reductions in the student lending market, we have been actively restructuring both our variable and fixed expenses. Our expenses are largely comprised of variable expenses including salaries and wages, subcontractor fees, production specific vendors, printing and mailing services. As variable costs increase with growth of services provided under a contract, or new contract award, similarly, we can and will attempt to reduce variable costs to the extent we encounter contract delays or lower service volumes. We have actively managed our cost structure during contract transitions with both CMS and the Department of Education and have reduced our expenses with an intent to minimize adverse impacts on our future revenue and in order to remain in compliance with our financial covenants.
Contractual Obligations
The following summarizes our contractual obligations as of December 31, 2014:
|
| | | | | | | | | | | | | | | | | | | |
| | Payments Due by Period |
| Contractual Obligations | Total | | Less Than 1 Year | | 1-3 Years | | 3-5 Years | | More Than 5 Years |
| Long-Term Debt Obligations | $ | 111,795 |
| | $ | 9,820 |
| | $ | 18,939 |
| | $ | 83,036 |
| | $ | — |
|
| Interest Payments | 22,263 |
| | 7,723 |
| | 13,254 |
| | 1,286 |
| | — |
|
| Operating Lease Obligations | 7,797 |
| | 2,290 |
| | 3,423 |
| | 1,269 |
| | 815 |
|
| Purchase Obligations | 7,423 |
| | 7,423 |
| | — |
| | — |
| | — |
|
| Total | $ | 149,278 |
| | $ | 27,256 |
| | $ | 35,616 |
| | $ | 85,591 |
| | $ | 815 |
|
|
| | | | | | | | | |
| Name and Principal Position | Year | Salary($) | Bonus($) | Stock Awards($)(1) | All other Compensation($) | Total($) |
| Lisa C. Im | 2014 | 403,082 | — |
| — |
| 24,001 | (2) | 427,083 |
| Chief Executive Officer and Chair of the Board of Directors | 2013 | 403,082 | 451,855 |
| — |
| 21,173 | (3) | 876,110 |
| | | | | | | | |
| Harold T. Leach, Jr. | 2014 | 352,694 | — |
| 490,780 |
| 25,078 | (4) | 868,552 |
| Chief Operating Officer | 2013 | 352,694 | 270,516 |
| — |
| 21,961 | (5) | 645,171 |
| | | | | | | | |
| Hakan L. Orvell | 2014 | 320,008 | — |
| 476,890 |
| 4,865 | (6) | 801,763 |
| Chief Financial Officer | 2013 | 285,153 | 207,779 |
| — |
| 4,659 | (6) | 497,591 |
| |
| (1) | We entered intoThe value of the equity awards is based on the fair value of the award as of the grant date calculated in accordance with ASC 718, excluding any estimate of future forfeitures. Our assumptions with respect to the calculation of these values are set forth under Item 8 “Stock-based Compensation” in the Notes to Consolidated Financial Statements in our new credit agreementAnnual Report on March 19, 2012Form 10-K for fiscal year ended December 31, 2014. Regardless of the value on the grant date, the actual value that may be recognized by the executive officers will depend on the market value of our common stock on a date in the future when a stock award vests or a stock option is exercised. |
| |
| (2) | Includes payments for vehicle allowance ($19,500) and amended itlife insurance benefits ($4,501). |
| |
| (3) | Includes payments for vehicle allowance ($16,500) and life insurance benefits ($4,673). |
| |
| (4) | Includes payments for vehicle allowance ($22,100) and life insurance benefits ($2,978). |
| |
| (5) | Includes payments for vehicle allowance ($18,700) and life insurance benefits ($3,261). |
| |
| (6) | Payments for life insurance benefits. |
Outstanding Equity Awards at Fiscal Year-End
The following table presents information on all outstanding equity awards held by our named executive officers as of December 31, 2014:
|
| | | | | | | | | | | |
| | Option Awards | Stock Awards |
| Name | Number of
Securities Underlying
Unexercised Options(#) | Option Exercise Price ($/share) | Expiration Date of Options | Number of Shares or Units of Stock that have not Vested(#) | | Market Value of Shares or Units of Stock that have not Vested($)(1) |
| Exercisable | | Unexercisable |
| Lisa C. Im | 131,250 | | — |
| 0.50 | 1/24/2018 | — |
| | — |
|
| | 71,000 | | — |
| 0.50 | 1/26/2018 | — |
| | — |
|
| | 200,000 | | — |
| 1.18 | 9/15/2019 | — |
| | — |
|
| | 384,857 | (2) | 439,830 |
| 10.60 | 8/10/2022 | — |
| | — |
|
| | 21,000 | (2) | 39,000 |
| 13.55 | 3/7/2023 | — |
| | — |
|
| Harold T. Leach, Jr. | 80,767 | | — |
| 0.50 | 10/18/2017 | 53,000 |
| (3) | 352,450 |
|
| | 200,000 | | — |
| 1.18 | 9/15/2019 | — |
| | — |
|
| | 128,291 | (2) | 146,605 |
| 10.60 | 8/10/2022 | — |
| | — |
|
| | 10,500 | (2) | 19,500 |
| 13.55 | 3/7/2023 | — |
| | — |
|
| Hakan L. Orvell | 103,197 | | — |
| 0.50 | 1/18/2018 | 51,500 |
| (3) | 342,475 |
|
| | 64,146 | (2) | 73,302 |
| 10.60 | 8/10/2022 | — |
| | — |
|
| |
| (1) | The market value is based on June 28, 2012, with all outstanding indebtedness under$6.65 per share market price of our prior loan facility paidcommon stock on December 31, 2014. |
| |
| (2) | The option award vests as to 1/5th of the total number of shares subject to the option 12 months after the vesting commencement date, and the remaining shares vest at a rate of 1/60th of the total number of shares subject to the option each month thereafter. |
| |
| (3) | The restricted stock award vests in full. Long-term debt obligations and interest payments presented in this table relate solely to our new credit agreement, as amended.four equal annual installments beginning August 13, 2015. |
Adjusted EBITDAEmployment and Adjusted Net IncomeChange in Control Agreements
To provide investors with additional information regarding our financial results,The section below describes the employment agreements that we have disclosedentered into with our Chief Executive Officer and Chair of our board of directors, as well as the form of employment agreement that each of our other executive officers entered into.
Chief Executive Officer
We entered into an employment agreement with Lisa C. Im, our Chief Executive Officer and Chair of the board of directors, on April 2, 2002, and this agreement has been subsequently amended. As amended, the agreement grants Ms. Im a salary of $33,334 per month, an automobile allowance of $1,500 per month and a Company-paid life insurance policy with a $1 million death benefit. This agreement also contains confidential information and invention assignment provisions.
Other Named Executive Officers
Each of our named executive officers, other than Ms. Im, has entered into our standard employment agreement. Our standard employment agreement provides for the named executive officer’s initial salary at the time of the agreement and grants the named executive officer the right to participate in our standard benefit plans. This agreement also contains confidential information and invention assignment provisions and does not provide for severance.
Potential Payments Upon Change of Control
We have also entered into a change of control agreement with Ms. Im. This agreement, as amended, provides that upon a triggering termination which follows a change in control by no more than two years, Ms. Im is entitled to receive a payment equal to her highest annual salary in effect during any period of 12 consecutive months within the 60 months immediately preceding the date of the triggering termination plus her highest annual bonus awarded in any of the three calendar years immediately preceding the year of the triggering termination. As of December 31, 2014, this amount would be equal to $854,937 for Ms. Im.
For purposes of Ms. Im’s change of control agreement:
A Change in control occurs (i) if any person or group becomes the beneficial owner of 50% of the Company’s voting securities, (ii) if certain changes of the individuals who constitute the board of directors occur during any period of two consecutive years, (iii) upon consummation of a reorganization, merger or consolidation unless certain conditions are met, or (iv) upon stockholder approval of a complete liquidation of the Company.
Triggering termination is defined as Ms. Im’s termination for any reason other than (i) her death, (ii) her disability that entitles her to receive long-term disability benefits from the Company, (iii) her retirement on or after the age of 65, (iv) her termination for cause, or (v) her resignation of employment for good reason.
Cause is defined as (i) the criminal conviction for embezzlement from the Company, (ii) the violation of a felony committed in connection with employment, (iii) the willful refusal to perform the reasonable duties of her position with the Company, (iv) the willful violation of the policies of the Company which is determined in good faith by the board of directors to be materially injurious to the employees, directors, property, or financial condition of the Company, or (v) the willful violation of the provisions of a confidentiality or non-competition agreement with the Company.
Good reason is defined as (i) a reduction in Ms. Im’s salary that was in effect immediately prior to a change of control, (ii) the relocation of the Company’s office that would add 35 miles or more to Ms. Im’s commute, or (iii) if the Company reduces certain benefits or vacation days that Ms. Im received prior to the change of control.
Retirement Plans
Except as described below, we currently have no plans that provide for the payment of retirement benefits, or benefits that will be paid primarily following retirement, including but not limited to tax-qualified defined benefit plans, supplemental executive retirement plans, tax-qualified defined contribution plans and nonqualified defined contribution plans.
We do maintain a 401(k) plan that is tax-qualified for our employees, including executive officers. We do not offer employer matching or other employer contributions to the 401(k) plan.
ITEM 12. SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT AND RELATED STOCKHOLDER MATTERS
The following table sets forth information as of April 24, 2015 about the number of shares of Common Stock beneficially owned by:
each person or group of persons known to us to be the beneficial owner of more than 5% of our Common Stock;
each of our executive officers named under “Executive Compensation—Summary Compensation Table”;
each of our directors; and
all of our directors and executive officers as a group.
Unless otherwise noted below, the address of each beneficial owner listed in the table is: c/o Performant Financial Corporation, 333 North Canyons Parkway, Livermore, California 94551.
We have determined beneficial ownership in accordance with the rules of the SEC. Except as indicated by the footnotes below, we believe, based on the information furnished to us, that the persons and entities named in the table below have sole voting and within this report adjusted EBITDA and adjusted net income, bothinvestment power with respect to all shares of which are non-GAAP financial measures. We have provided a reconciliation below of adjusted EBITDAcommon stock that they beneficially own, subject to net income and adjusted net income to net income, the most directly comparable GAAP financial measure to these non-GAAP financial measures.
We have included adjusted EBITDA and adjusted net income in this report because they are key measures used by our management and board of directors to understand and evaluate our core operating performance and trends and to prepare and approve our annual budget. Accordingly, we believe that adjusted EBITDA and adjusted net income provide useful information to investors and analysts in understanding and evaluating our operating results in the same manner as our management and board of directors.
Our use of adjusted EBITDA and adjusted net income has limitations as an analytical tool, and you should not consider it in isolation or as a substitute for analysis of our results as reported under GAAP. Some of these limitations are:
although depreciation and amortization are non-cash charges, the assets being depreciated and amortized may have to be replaced in the future, and adjusted EBITDA does not reflect cash capital expenditure requirements for such replacements or for new capital expenditure requirements;
adjusted EBITDA does not reflect interest expense on our indebtedness;
adjusted EBITDA does not reflect changes in, or cash requirements for, our working capital needs;
adjusted EBITDA does not reflect tax payments;
adjusted EBITDA and adjusted net income do not reflect the potentially dilutive impact of equity-based compensation;
adjusted EBITDA and adjusted net income do not reflect the impact of certain non-operating expenses resulting from matters we do not consider to be indicative of our core operating performance; and
other companies may calculate adjusted EBITDA and adjusted net income differently than we do, which reduces its usefulness as a comparative measure.
Because of these limitations, you should consider adjusted EBITDA and adjusted net income alongside other financial performance measures, including net income and our other GAAP results.applicable community property laws.
The following tables present a reconciliationpercentage of adjusted EBITDACommon Stock beneficially owned is based on 49,365,581 shares outstanding as of April 24, 2015. For purposes of calculating each person’s or group’s percentage ownership, shares of common stock issuable pursuant to the terms of stock options or restricted stock units exercisable or vesting within 60 days after April 24, 2015 are included as outstanding and adjusted net incomebeneficially owned for that person or group, but are not treated as outstanding for the years ended December 31, 2014, 2013 and 2012 to actual net income for these periods:purpose of computing the percentage ownership of any other person or group.
|
| | | | | | | | | | | |
| | Year Ended December 31, |
| | 2014 | | 2013 | | 2012 |
| | (in thousands) |
| Reconciliation of Adjusted EBITDA: | | | | | |
| Net income | $ | 9,400 |
| | $ | 36,339 |
| | $ | 22,951 |
|
| Provision for income taxes | 7,699 |
| | 24,967 |
| | 16,786 |
|
| Interest expense | 10,171 |
| | 11,564 |
| | 12,414 |
|
| Interest income | (1 | ) | | (1 | ) | | (64 | ) |
Debt extinguishment costs(1) | — |
| | — |
| | 3,679 |
|
Transaction expenses(2) | 1,276 |
| | 2,893 |
| | — |
|
| Depreciation and amortization | 12,450 |
| | 10,655 |
| | 9,505 |
|
Non-core operating expenses(3) | — |
| | — |
| | 47 |
|
Advisory fee(4) | — |
| | — |
| | 2,641 |
|
| Stock based compensation | 3,707 |
| | 2,994 |
| | 1,614 |
|
| Adjusted EBITDA | $ | 44,702 |
| | $ | 89,411 |
| | $ | 69,573 |
|
|
| | | | | | | | | | | |
| | Year Ended December 31, |
| | 2014 | | 2013 | | 2012 |
| | (in thousands) |
| Reconciliation of Adjusted Net Income: | | | | | |
| Net income | $ | 9,400 |
| | $ | 36,339 |
| | $ | 22,951 |
|
Debt extinguishment costs(1) | — |
| | — |
| | 3,679 |
|
Transaction expenses (2) | 1,276 |
| | 2,893 |
| | — |
|
Non–core operating expenses(3) | — |
| | — |
| | 47 |
|
Advisory fee(4) | — |
| | — |
| | 2,641 |
|
| Stock based compensation | 3,707 |
| | 2,994 |
| | 1,614 |
|
Amortization of intangibles(5) | 3,737 |
| | 3,731 |
| | 3,676 |
|
Deferred financing amortization costs(6) | 1,055 |
| | 1,125 |
| | 1,161 |
|
Tax adjustments(7) | (3,910 | ) | | (4,297 | ) | | (5,126 | ) |
| Adjusted net income | $ | 15,265 |
| | $ | 42,785 |
| | $ | 30,643 |
|
|
| | |
| Name of Beneficial Owner | Shares Beneficially Owned |
| | Number (1) | Percentage |
| 5% Stockholders: | | |
Parthenon DCS Holdings, LLC (2) | 13,500,878 | 27.3% |
Invesco Ltd. (3) | 9,823,499 | 19.9% |
RS Investment Management Co. LLC (4) | 6,359,301 | 12.9% |
| Executive Officers and Directors: | | |
Lisa C. Im (5) | 2,302,211 | 4.7% |
Harold T. Leach, Jr. (6) | 450,050 | * |
Hakan L. Orvell (7) | 181,089 | * |
Bradley M. Fluegel (8) | 12,074 | * |
Todd R. Ford (9) | 63,506 | * |
Brian P. Golson (2) | 13,500,878 | 27.3% |
Bruce E. Hansen (10) | 37,108 | * |
William D. Hansen (11) | 51,422 | * |
All Executive Officers and Directors as a group (8 persons)(12) | 16,598,338 | 33.6% |
| |
| (1) | Represents debt extinguishment costs comprisedUnless otherwise indicated, includes shares owned by a spouse, minor children and relatives sharing the same home, as well as entities owned or controlled by the named person. Unless otherwise noted, shares are owned of approximately $3.3 million of fees paid to lenders in connection with our new credit facilityrecord and approximately $0.3 million of unamortized debt issuance costs in connection with our old credit facility.beneficially by the named person. |
| |
| (2) | Represents directThe reported shares are owned of record by Parthenon DCS Holdings, LLC (“DCS Holdings”). Parthenon Investors II, L.P., as the manager of DCS Holdings; PCAP Partners II, LLC, as the general partner of Parthenon Investors II, L.P.; PCAP II, LLC, as the managing member of PCAP Partners II, LLC; PCP Managers, LLC, as the managing member of PCAP II, LLC; and incremental costs associated withMr. Golson, William Kessinger and David Ament, as managing members of PCP Managers, LLC, may be deemed to beneficially own the Company's secondary offerings in February and April 2013, and expenses incurred in 2014securities owned of record by DCS Holdings. Mr. Golson is a Managing Director of Parthenon Capital Partners, an affiliate of PCAP Partners II, LLC. Each of the foregoing persons disclaims beneficial ownership of the reported securities except to the extent of their pecuniary interest therein. The address for potential acquisition and related financing.the foregoing persons is c/o Parthenon Capital Partners, Four Embarcadero Center, Suite 3610, San Francisco, California 94111. |
| |
| (3) | Represents professional feesBased on a Schedule 13G/A filed with the SEC on January 12, 2015 by Invesco Ltd. (“Invesco”), an investment adviser which is deemed to be the beneficial owner of 9,823,499 shares. Invesco has sole voting and settlement costs related to strategic corporate development activities.dispositive power over all shares beneficially owned by it. The principal business address of Invesco is 1555 Peachtree Street NE; Atlanta, GA 30309. |
| |
| (4) | Represents expenses incurred underBased on a Schedule 13G/A filed with the SEC on February 12, 2015 by RS Investment Management Co. LLC (“RS”), an advisory services agreement with Parthenon Capital Partners,investment adviser which was terminated inis deemed to be the beneficial owner of 6,359,301 shares. RS has sole voting power as to 5,670,200 shares and sole dispositive power as to all 6,359,301 shares. The principal business address of RS is One Bush Street, Suite 900, San Francisco, CA 94014. |
| |
| (5) | Includes 896,517shares subject to options exercisable within 60 days of April 201224, 2015. |
| |
| (6) | Includes 450,050 shares subject to options exercisable within 60 days of April 24, 2015. |
| |
| (7) | Includes 181,089 shares subject to options exercisable within 60 days of April 24, 2015. |
| |
| (8) | Includes 8,700 RSUs scheduled to vest within 60 days of April 24, 2015. |
| |
| (9) | Includes 44,806 shares subject to options exercisable within 60 days of April 24, 2015 and the August 2012 expense8,700 shares underlying RSUs scheduled to vest within 60 days of $0.9 million associated with a paymentApril 24, 2015. |
| |
| (10) | Includes 27,092 shares subject to a financial advisor as partoptions exercisable within 60 days of the Company's initial public offering. See Note 11 "Related Party Transactions."April 24, 2015 and 8,700 shares underlying RSUs scheduled to vest within 60 days of April 24, 2015. |
| |
| (11) | Includes 47,722 shares subject to options exercisable within 60 days of April 24, 2015 and 8,700 shares underlying RSUs scheduled to vest within 60 days of April 24, 2015. |
| |
| (12) | Includes 1,642,336 shares subject to options exercisable within 60 days of April 24, 2015 and 34,800 shares underlying RSUs scheduled to vest within 60 days of April 24, 2015. Also includes 13,500,878 shares held by DCS Holdings. |
(5) Represents amortization of capitalized expenses related to the acquisition of Performant by an affiliate of Parthenon Capital Partners in 2004, and also an acquisition in the first quarter of 2012 to enhance our analytics capabilities.
(6) Represents amortization of capitalized financing costs related to debt offerings conducted in 2009, 2010 and 2012.
(7) Represents tax adjustments assuming a marginal tax rate of 40%.
| |
| ITEM 13. | CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS, AND DIRECTOR INDEPENDENCE |
Recent Accounting Pronouncements
In May 2014, FASB issued an ASU that amends the FASB ASC by creating a new Topic 606, Revenue from Contracts with Customers. The new guidance will supersede the revenue recognition requirements in Topic 605, Revenue Recognition, and most industry-specific guidance on revenue recognition throughout the Industry Topics of the Codification. The core principle of the guidance is that an entity should recognize revenue to depict the transfer of promised goods or services to customers in an amount that reflects the consideration to which the entity expects to be entitled in exchange for those goods or services. To achieve that core principle, an entity should apply the following steps:
Step 1: Identify the contract(s) with a customer.
Step 2: Identify the performance obligations in the contract.
Step 3: Determine the transaction price.
Step 4: Allocate the transaction price to the performance obligations in the contract.
Step 5: Recognize revenue when (or as) the entity satisfies a performance obligation.
In addition, an entity should disclose sufficient qualitative and quantitative information to enable users of financial statements to understand the nature, amount, timing and uncertainty of revenue and cash flows arising from contracts with customers. The amendments in this ASU are effective for annual reporting periods beginning after December 15, 2016, including interim periods within that reporting period. Early adoption is not permitted. This amendment is to be either retrospectively adopted to each prior reporting period presented or retrospectively with the cumulative effect of initially applying this ASU recognized at the date of initial application. We are currently evaluating the impact of the adoption of this guidance to our consolidated financial statements.
In June 2014, FASB issued ASU 2014-12, Accounting for Share-Based Payments When the Terms of an Award Provide That a Performance Target Could Be Achieved after the Requisite Service Period ("ASU 2014-12"). ASU 2014-12 brings consistency to the accounting for share-based payment awards that require a specific performance target to be achieved in order for employees to become eligible to vest in the awards. ASU 2014-12 is effective for annual reporting periods (including interim periods) beginning after December 15, 2015, with early adoption permitted. The adoption of this guidance will not have a material effect on our consolidated financial statements.
ITEM 7A. Quantitative and Qualitative Disclosures about Market Risk
We do not hold or issue financial instruments for trading purposes. We conduct allInformation regarding certain of our business in U.S. currency and therefore do not have any direct foreign currency risk. We do have exposure to changes in interest rates with respect to the borrowings under our senior secured credit facility, which bear interest at a variable rate based on the prime rate or LIBOR. For example, if the interest rate on our borrowings increased 100 basis points (1%) from the credit facility floor of 1.5%, our annual interest expense would increase by approximately $1.1 million.
While we currently hold our excess cash in an operating account, in the future we may invest all or a portion of our excess cash in short-term investments, including money market accounts, where returns may reflect current interest rates. As a result, market interest rate changes impact our interest expense and interest income. This impact will depend on variables such as the magnitude of interest rate changes and the level of our borrowings under our credit facility or excess cash balances.
ITEM 8. Financial Statements and Supplementary Data
Our consolidated financial statements and notes thereto and the reports of KPMG LLP are set forth in the Index to Financial Statements under Item 15, Exhibits, Financial Statement Schedules, and is incorporated herein by reference.
ITEM 9. Changes in and Disagreements with Accountants on Accounting and Financial Disclosure
None.
ITEM 9A. Controls and Procedures
Evaluation of Disclosure Controls and Procedures
We maintain a system of disclosure controls and procedures that are designed to ensure that information required to be disclosed in the Company’s reports under the Exchange Act is recorded, processed, summarized and reported within the time periods specified in the Securities and Exchange Commission’s rules and forms, and that such information is accumulated and communicated to management, including our Chief Executive Officer and the Chief Financial Officer, as appropriate, to allow timely decisions regarding required disclosure. In designing and evaluating the disclosure controls and procedures,
management recognized that any controls and procedures, no matter how well designed and operated, can provide only reasonable assurance of achieving the desired control objectives.
Management, with the participation of our Chief Executive Officer and our Chief Financial Officer, has evaluated the effectiveness of our disclosure controls and procedures, as defined in Rule 13a-15(e) under the Exchange Act, as of the fiscal year covered by this Annual Report on Form 10-K. Based on that evaluation, our Chief Executive Officer and Chief Financial Officer concluded that our disclosure controls and procedures were functioning effectively at the reasonable assurance level as of December 31, 2014.
Management’s Report on Internal Control over Financial Reporting
Our management is responsible for establishing and maintaining adequate internal control over financial reporting (as defined in Rules 13a-15(f) and 15d-15(f) under the Exchange Act) to provide reasonable assurance regarding the reliability of our financial reporting and the preparation of our consolidated financial statements for external purposes in accordance with United States Generally Accepted Accounting Principles (“US GAAP”). Under the supervision of, and with the participation of our Chief Executive Officer and Chief Financial Officer, management assessed the effectiveness of internal control over financial reporting as of December 31, 2014. Management based its assessment on criteria established in “Internal Control Integrated Framework” issued by the Committee of Sponsoring Organizations of the Treadway Commission (“COSO”). Based on this evaluation, management concluded that its internal control over financial reporting was effective as of December 31, 2014.
Changes in Internal Control over Financial Reporting
There was no change in our internal control over financial reporting during the year ended December 31, 2014, that has materially affected, or is reasonably likely to materially affect, our internal control over financial reporting, other than those noted above.
ITEM 9B. Other Information
None.
PART III
ITEM 10. Directors, Executive Officers and Corporate Governance
This Itemdirectors is incorporated by reference from Item 10 of this Form 10-K/A.
Related Party Transaction Policy
We have a formal written policy that our executive officers, directors, holders of more than 5% of any class of our voting securities, and any member of the immediate family of and any entity affiliated with any of the foregoing persons, are not permitted to enter into a related party transaction with us without the prior consent of our audit committee, or other independent members of our board of directors in the event it is inappropriate for our audit committee to review such transaction due to a conflict of interest. Any request for us to enter into a transaction with an executive officer, director, principal stockholder, or any of their immediate family members or affiliates, in which the amount involved exceeds $120,000 must first be presented to our definitive proxy statementaudit committee for review, consideration and approval. In approving or rejecting any such proposal, our audit committee is required to conduct a review of all relevant facts reasonably available to our audit committee, including, but not limited to, whether the transaction is on Schedule 14A, whichterms no less favorable than terms generally available to an unaffiliated third-party under the same or similar circumstances and the extent of the related party’s interest in the transaction. All of the transactions described below were entered into prior to the adoption of such policy in connection with our initial public offering in August 2012.
Arrangements with Our Investors
On January 8, 2004, in connection with the consummation of our acquisition by investment funds controlled by Parthenon Capital Partners and certain other stockholders, or the Acquisition, we entered into an investment agreement, a stockholders agreement, an advisory services agreement and a registration agreement. The investment agreement, stockholders agreement and advisory services agreement were terminated upon the closing of our initial public offering in August 2012.
Registration Agreement
In connection with the Acquisition, we entered into a registration agreement with Parthenon Capital Partners and certain other stockholders. This agreement was amended, effective upon the closing of our initial public offering in August 2012. The registration agreement, as amended, provides the stockholders party thereto with certain demand registration rights in respect of the shares of our common stock held by them. In addition, following the closing of our initial public offering in August 2012, if we register additional shares of common stock for sale to the public, we are required to give notice of such registration to the stockholders who are party to the registration agreement of our intention to effect such a registration, and, subject to certain limitations, such holders will have piggyback registration rights providing them with the right to require us to include shares of common stock held by them in such registration. We will be filed within 120 days afterrequired to bear the closeregistration expenses, other than underwriting discounts and commissions and transfer taxes, associated with any registration of shares by the stockholders described above. The registration rights agreement includes lock up obligations that restrict the sale of securities during the initial 180 day period, or in certain circumstances 90 day period, following the effective date of any demand registration or piggyback registration effected pursuant to the terms of the fiscal year coveredregistration agreement. We are also restricted from engaging in any public sale of equity securities during the initial 180 day period, or in certain circumstances 90 day period, following the effective date of any demand registration or piggyback registration effected pursuant to the terms of the registration agreement. The registration agreement includes customary indemnification provisions in favor of the stockholders who are parties thereto and any person who is or might be deemed a controlling person of the stockholders within the meaning of the Securities Act and related parties against liabilities under the Securities Act incurred in connection with the registration of any of our securities. These provisions provide indemnification against certain liabilities arising under the Securities Act and certain liabilities resulting from violations of other applicable laws in connection with any filing or other disclosure made by this report on Form 10-K,us under the securities laws relating to any such registrations. We have agreed to reimburse such persons for any legal or other expenses incurred in connection with investigating or defending any such liability, action or proceeding, except that we will not be required to indemnify any such person or reimburse related legal or other expenses if our proxy statementsuch loss or expense arises out of or is not filed by that date, will be included in an amendment to this Report on Form 10-K.
Director Nomination Agreement
In July 2012, we entered into a Director Nomination Agreement with Parthenon Capital Partners that provides Parthenon Capital Partners the right to designate nominees for election to our board of Contents
ITEM 11. Executive Compensation
This Item isdirectors for so long as Parthenon Capital Partners owns 10% or more of the total number of shares of common stock outstanding. The material provisions of the Director Nomination Agreement are incorporated by reference from Item 10 of this form 10-K/A.
Indemnification Agreements
We have entered into indemnification agreements with each of our directors and executive officers. The indemnification agreements and our amended and restated bylaws require us to our definitive proxy statement on Schedule 14A, which will be filed within 120 days afterindemnify these individuals to the close of the fiscal year coveredfullest extent permitted by this report on Form 10-K, or if our proxy statement is not filed by that date, will be included in an amendmentDelaware law, subject to this Report on Form 10-K.certain exceptions.
ITEM 12. Security Ownership of Certain Beneficial Owners and Management and Related Stockholder Matters
This Item is incorporated by reference to our definitive proxy statement on Schedule 14A, which will be filed within 120 days after the close of the fiscal year covered by this report on Form 10-K, or if our proxy statement is not filed by that date, will be included in an amendment to this Report on Form 10-K.
ITEM 13. Certain Relationships and Related Transactions, and Director Independence
This Item is incorporated by reference to our definitive proxy statement on Schedule 14A, which will be filed within 120 days after the close of the fiscal year covered by this report on Form 10-K, or if our proxy statement is not filed by that date, will be included in an amendment to this Report on Form 10-K.
ITEM 14. PrincipalPRINCIPAL ACCOUNTING FEES AND SERVICES
Fees Paid to Independent Registered Public Accounting FeesFirm
The audit committee’s policy is to evaluate and Servicesdetermine that the services provided by KPMG in each year are compatible with the auditor’s independence. The following table shows fees billed for each of 2014 and 2013 for professional services rendered by KPMG for the audit of our financial statements and other services.
|
| | | | |
| Year | Audit Fees(1) | Audit-Related Fees | Tax Fees | All Other Fees |
| 2014 | $619,900 | $ — | $ — | $ — |
| 2013 | $604,250 | $ — | $ — | $ — |
| |
| (1) | Audit fees are fees for the audit of the Company’s annual financial statements. Audit fees also include fees for the review of financial statements included in the Company’s quarterly reports on Form 10-Q, for services that are normally provided in connection with statutory and regulatory filings or engagements, and in connection with public equity offerings. |
Audit Committee Pre-Approval Procedures
With respect to independent auditor services and fees, it is incorporatedour practice to provide pre-approval of audit, audit-related, tax and other specified services on an annual basis. Unless a type of service to be provided by referencethe independent registered public accounting firm has received general pre-approval, we seek specific pre-approval by the audit committee. Other specified services provided to the Company by KPMG are generally reapproved only when the fees charged for the provision of such services is expected to be different than the prior year or normal fees. Proposed services anticipated to exceed pre-approved cost levels are discussed with the audit committee. It is our practice that the audit committee Chair has pre-approval authority with respect to permitted services. The Chair of the audit committee reports any pre-approval decisions to our definitive proxy statement on Schedule 14A, which will be filed within 120 days after the close of the fiscal year covered by this report on Form 10-K, or if our proxy statement is not filed by that date, will be included in an amendment to this Report on Form 10-K.audit committee at its next scheduled meeting.
PART IV
ITEM 15. Exhibits, Financial Statement SchedulesEXHIBITS, FINANCIAL STATEMENT SCHEDULES
(a) Financial Statements
Financial Statements. The financial statements filed as part of this report are identified in the Index to Consolidated Financial Statements on page F-1.Not applicable.
Financial Statement Schedules. See Item 15(c) below.Not applicable.
Exhibits. See Item 15(b) below.
(b) Exhibits
The following exhibits are filed herewith or are incorporated by reference to exhibits previously filed with the Securities and Exchange Commission. The Company shall furnish copies of exhibits for a reasonable fee (covering the expense of furnishing copies) upon request.
|
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Exhibit
Number
| Description |
| | |
| 2.1 | Agreement and Plan of Merger, dated as of January 28, 2015, by and among Performant Financial Corporation.Corporation, Project Phoenix Merger Sub, Inc., Premier Healthcare Exchange, Inc. and the other parties thereto (incorporated by reference to Exhibit 2.1 to the Company's Current Report on Form 8-K filed January 29, 2015) |
| | |
| 3.1 | Restated Certificate of Incorporation of Registrant (incorporated by reference to Exhibit 3.1(b) to the Company’sCompany's Registration Statement on Form S-1/A filed July 30, 2012) |
| | |
| 3.2 | Amended and Restated Bylaws of Registrant (incorporated by reference to Exhibit 3.2(b) to the Company’sCompany's Registration Statement on Form S-1/A filed July 23, 2012) |
| | |
| 4.2 | Amended and Restated Registration Rights Agreement, dated as of August 15, 2012, among the Registrant and the persons listed thereon (incorporated by reference to Exhibit 4.2 to the Company’sCompany's Registration Statement on Form S-1/A filed July 23, 2012) |
| | |
| 10.1 | Form of Indemnification Agreement between the Registrant and its officers and directors (incorporated by reference to Exhibit 10.1 to the Company’sCompany's Registration Statement on Form S-1/A filed July 30, 2012) |
| | |
| 10.2 | 2004 Equity Incentive Plan and form of agreements thereunder (incorporated by reference to Exhibit 10.2 to the Company’sCompany's Registration Statement on Form S-1 filed July 3, 2012) |
| | |
| 10.3 | 2004 DCS Holdings Stock Option Plan and form of agreements thereunder (incorporated by reference to Exhibit 10.3 to the Company’sCompany's Registration Statement on Form S-1 filed July 3, 2012) |
| | |
| 10.4 | 2007 Stock Option Plan and form of agreements thereunder (incorporated by reference to Exhibit 10.4 to the Company’sCompany's Registration Statement on Form S-1 filed July 23, 2012) |
| | |
|
| |
| 10.5 | Recovery Audit Contractor contract by and between Diversified Collection Services, Inc. and Center for Medicare and Medicaid Services dated as of October 3, 2008, as amended (incorporated by reference to Exhibit 10.5 to the Company’sCompany's Registration Statement on Form S-1/A filed July 23, 2012) |
| | |
| 10.6 | Credit Agreement, dated as of March 19, 2012, by and among DCS Business Services, Inc., the Lenders party Hereto, Madison Capital Funding LLC, and ING Capital (incorporated by reference to Exhibit 10.6 to the Company’sCompany's Registration Statement on Form S-1/A filed July 23, 2012) |
| | |
| 10.7 | Form of Change of Control Agreement, as amended (incorporated by reference to Exhibit 10.7 to the Company’sCompany's Registration Statement on Form S-1/A filed July 30, 2012) |
| | |
| 10.8 | Employment Agreement between the Registrant and Lisa Im, dated as of April 15, 2012, as amended (incorporated by reference to Exhibit 10.8 to the Company’sCompany's Registration Statement on Form S-1/A filed July 23, 2012) |
| | |
| 10.9 | Employment Agreement between the Registrant and Jon D. Shaver dated as of March 31, 2003, as amended (incorporated by reference to Exhibit 10.9 to the Company’sCompany's Registration Statement on Form S-1/A filed July 23, 2012) |
| | |
| 10.10 | Repurchase Agreement between the Registrant and Lisa C. Im dated as of July 3, 2012 (incorporated by reference to Exhibit 10.10 to the Company’sCompany's Registration Statement on Form S-1 filed July 3, 2012) |
| | |
| 10.11 | Repurchase Agreement between the Registrant and Jon D. Shaver dated as of July 3, 2012 (incorporated by reference to Exhibit 10.11 to the Company’sCompany's Registration Statement on Form S-1 filed July 3, 2012) |
| | |
| 10.12 | Director Nomination Agreement between the Registrant and Parthenon DCS Holdings, LLC dated as of July 20, 2012 (incorporated by reference to Exhibit 10.12 to the Company’sCompany's Registration Statement on Form S-1/A filed July 23, 2012) |
| | |
| 10.13 | Advisory Services Agreement between Diversified Collection Services, Inc. and Parthenon Capital, LLC dated as of January 8, 2004, as amended (incorporated by reference to Exhibit 10.13 to the Company’sCompany's Registration Statement on Form S-1/A filed July 23, 2012) |
| |
|
| |
Exhibit
Number | Description |
| | |
| 10.14 | Termination of the Advisory Services Agreement between Diversified Collection Services, Inc. and Parthenon Capital, LLC dated as of January 8, 2004, as amended, dated as of April 13, 2012 (incorporated by reference to Exhibit 10.14 to the Company’sCompany's Registration Statement on Form S-1/A filed July 23, 2012) |
| | |
| 10.15 | 2012 Stock Incentive Plan*Plan† |
| | |
| 10.16 | Amendment No. 1 to Credit Agreement Credit Agreement, dated as of March 19, 2012, by and among DCS Business Services, Inc., the Lenders party thereto, Madison Capital Funding LLC,and ING Capital*Capital† |
|
| |
| | |
| 10.17 | Amendment No. 2 to Credit Agreement, dated as of November 4, 2014, by and among Performant Business Services, Inc., the Lenders party thereto, and Madison Capital Funding LLC. (incorporated by reference to Exhibit 10.1 to the Company's Quarterly Report on Form 10-Q filed November 10, 2014) |
| | |
| 21 | List of SubsidiariesSubsidiaries†† |
| | |
| 23 | Consent of KPMG LLP, Independent Registered Public Accounting FirmFirm†† |
| | |
| 24 | Powers of Attorney (included in the signature page to this report) †† |
| | |
| 31.1 | Rule 13a-14(a)/15d-14(a) Certification, executed by Lisa C. ImIm* |
| | |
| 31.2 | Rule 13a-14(a)/15d-14(a) Certification, executed by Hakan L. OrvellOrvell* |
| | |
| 32.1 | Furnished Statement of the Chief Executive Officer under 18 U.S.C. Section 13501350†† |
| | |
| 32.2 | Furnished Statement of the Chief Financial Officer under 18 U.S.C. Section 13501350†† |
| | |
| 101.INS | XBRL Instance DocumentDocument†† |
| | |
| 101.SCH | XBRL Taxonomy Extension SchemeScheme†† |
| | |
| 101.CAL | XBRL Taxonomy Extension Calculation LinkbaseLinkbase†† |
| | |
| 101.DEF | XBRL Taxonomy Extension Definition Linkbase DocumentDocument†† |
| | |
| 101.LAB | XBRL Taxonomy Extension Label LinkbaseLinkbase†† |
| | |
| 101.PRE | XBRL Taxonomy Extension Presentation LinkbaseLinkbase†† |
* Filed herewith
Schedules not listed above have been omitted because they are not applicable or required, or the information required to be set forth therein is included in the Consolidated Financial Statements or Notes hereto.
Index to Consolidated Financial Statements
|
| |
| * | PageFiled herewith. |
Consolidated Financial Statements of Performant Financial Corporation and Subsidiaries For† | Previously filed with our Annual Report on Form 10-K filed with the Years Ended December 31, 2014, 2013 and 2012 | SEC on March 12, 2015. |
| †† | |
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| |
| |
| |
| |
| |
| |
| |
| |
| |
| on Form 10-K filed with the SEC on March 12, 2015. |
Report of Independent Registered Public Accounting Firm
The Board of Directors and Stockholders
Performant Financial Corporation:
We have audited the accompanying consolidated balance sheets of Performant Financial Corporation and subsidiaries as of December 31, 2014 and 2013, the related consolidated statements of operations, changes in redeemable preferred stock and stockholders’ equity (deficit), and cash flows for each of the years in the three‑year period ended December 31, 2014, and the related Schedule II for the three-year period ended December 31, 2014. These consolidated financial statements are the responsibility of the Company’s management. Our responsibility is to express an opinion on these consolidated financial statements based on our audits.
We conducted our audits in accordance with the standards of the Public Company Accounting Oversight Board (United States). Those standards require that we plan and perform the audit to obtain reasonable assurance about whether the financial statements are free of material misstatement. An audit includes examining, on a test basis, evidence supporting the amounts and disclosures in the financial statements. An audit also includes assessing the accounting principles used and significant estimates made by management, as well as evaluating the overall financial statement presentation. We believe that our audits provide a reasonable basis for our opinion.
In our opinion, the consolidated financial statements and Schedule II referred to above present fairly, in all material respects, the financial position of Performant Financial Corporation and subsidiaries as of December 31, 2014 and 2013, and the results of their operations and their cash flows for each of the years in the three‑year period ended December 31, 2014, in conformity with U.S. generally accepted accounting principles.
/s/ KPMG LLP
San Francisco, California
March 12, 2015
PERFORMANT FINANCIAL CORPORATION AND SUBSIDIARIES
Consolidated Balance Sheets
(In thousands, except per share amounts)
|
| | | | | | | |
| Assets | December 31,
2014 | | December 31,
2013 |
| Current assets: | | | |
| Cash and cash equivalents | $ | 80,298 |
| | $ | 81,909 |
|
| Trade accounts receivable, net of allowance for doubtful accounts of $32 and $32, respectively and estimated allowance for appeals of $0 and $1,160, respectively | 15,047 |
| | 19,649 |
|
| Deferred income taxes | 7,605 |
| | 6,847 |
|
| Prepaid expenses and other current assets | 12,559 |
| | 4,400 |
|
| Income tax receivable | 4,394 |
| | — |
|
| Debt issuance costs, current portion | 986 |
| | 1,055 |
|
| Total current assets | 120,889 |
| | 113,860 |
|
| Property, equipment, and leasehold improvements, net | 27,647 |
| | 26,247 |
|
| Identifiable intangible assets, net | 29,093 |
| | 32,513 |
|
| Goodwill | 82,522 |
| | 81,572 |
|
| Debt issuance costs, net of current portion | 2,456 |
| | 2,789 |
|
| Other assets | 222 |
| | 279 |
|
| Total assets | $ | 262,829 |
| | $ | 257,260 |
|
| Liabilities and Stockholders’ Equity | | | |
| Current liabilities: | | | |
| Current maturities of notes payable | $ | 9,820 |
| | $ | 10,763 |
|
| Accrued salaries and benefits | 5,380 |
| | 11,826 |
|
| Accounts payable | 1,370 |
| | 2,383 |
|
| Other current liabilities | 8,452 |
| | 5,311 |
|
| Income taxes payable | — |
| | 103 |
|
| Estimated liability for appeals | 18,625 |
| | 15,283 |
|
| Net payable to client | 12,110 |
| | — |
|
| Total current liabilities | 55,757 |
| | 45,669 |
|
| Notes payable, net of current portion | 101,975 |
| | 122,541 |
|
| Deferred income taxes | 11,666 |
| | 12,612 |
|
| Other liabilities | 2,259 |
| | 2,204 |
|
| Total liabilities | 171,657 |
| | 183,026 |
|
| Commitments and contingencies |
| |
|
| Stockholders’ equity: | | | |
| Common stock, $0.0001 par value. Authorized, 500,000 shares at December 31, 2014 and 2013, respectively; issued and outstanding, 49,350 and 48,316 shares at December 31, 2014 and 2013, respectively | 5 |
| | 5 |
|
| Additional paid-in capital | 57,329 |
| | 49,791 |
|
| Retained earnings | 33,838 |
| | 24,438 |
|
| Total stockholders’ equity | 91,172 |
| | 74,234 |
|
| Total liabilities and stockholders’ equity | $ | 262,829 |
| | $ | 257,260 |
|
See accompanying notes to consolidated financial statements.
PERFORMANT FINANCIAL CORPORATION AND SUBSIDIARIES
Consolidated Statements of Operations
(In thousands, except per share amounts)
|
| | | | | | | | | | | |
| | For the Years Ended December 31, |
| | 2014 | | 2013 | | 2012 |
| Revenues | $ | 195,378 |
| | $ | 255,302 |
| | $ | 210,073 |
|
| Operating expenses: | | | | | |
| Salaries and benefits | 93,676 |
| | 96,762 |
| | 83,002 |
|
| Other operating expenses | 74,433 |
| | 85,671 |
| | 71,305 |
|
| Total operating expenses | 168,109 |
| | 182,433 |
| | 154,307 |
|
| Income from operations | 27,269 |
| | 72,869 |
| | 55,766 |
|
| Debt extinguishment costs | — |
| | — |
| | (3,679 | ) |
| Interest expense | (10,171 | ) | | (11,564 | ) | | (12,414 | ) |
| Interest income | 1 |
| | 1 |
| | 64 |
|
| Income before provision for income taxes | 17,099 |
| | 61,306 |
| | 39,737 |
|
| Provision for income taxes | 7,699 |
| | 24,967 |
| | 16,786 |
|
| Net income | $ | 9,400 |
| | $ | 36,339 |
| | $ | 22,951 |
|
| Accrual for preferred stock dividends | — |
| | — |
| | 2,038 |
|
| Net income available to common shareholders | $ | 9,400 |
| | $ | 36,339 |
| | $ | 20,913 |
|
| | | | | | |
| Net income per share attributable to common shareholders (see Note 1) | | | | | |
| Basic | $ | 0.19 |
| | $ | 0.77 |
| | $ | 0.48 |
|
| Diluted | $ | 0.19 |
| | $ | 0.74 |
| | $ | 0.44 |
|
| Weighted average shares (see Note 1) | | | | | |
| Basic | 48,816 |
| | 47,492 |
| | 43,985 |
|
| Diluted | 49,834 |
| | 49,386 |
| | 47,599 |
|
See accompanying notes to consolidated financial statements.
PERFORMANT FINANCIAL CORPORATION AND SUBSIDIARIES
Consolidated Statements of Changes in Redeemable Preferred Stock and Stockholders’ Equity (Deficit)
For the Years Ended December 31, 2014, 2013 and 2012
(In thousands)
|
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
| | Redeemable Preferred Stock Series A Convertible Preferred Stock | | | Due From Stockholders | | Common Stock | | Additional Paid-In Capital | | Retained Earnings (Deficit) | | Total |
| | Shares | | Amount | | | Shares | | Amount | |
| Balance, December 31, 2011 | 5,296 |
| | $ | 58,248 |
| | | $ | (2,266 | ) | | 37,667 |
| | $ | 4 |
| | $ | 19,371 |
| | $ | (32,814 | ) | | $ | (15,705 | ) |
| Increase in redemption value of Series A preferred stock | — |
| | 2,038 |
| | | — |
| | — |
| | — |
| | — |
| | (2,038 | ) | | (2,038 | ) |
| Conversion of Series A preferred stock to Series B preferred stock which was immediately redeemed for cash | — |
| | (60,286 | ) | | | — |
| | — |
| | — |
| | — |
| | — |
| | — |
|
| Conversion of Series B preferred stock to common | (5,296 | ) | | — |
| | | — |
| | 5,296 |
| | — |
| | — |
| | — |
| | — |
|
| Exercise of stock options | — |
| | — |
| | | — |
| | 284 |
| | — |
| | 175 |
| | — |
| | 175 |
|
| Issuance of stock | — |
| | — |
| | | — |
| | 2,243 |
| | — |
| | 15,420 |
| | — |
| | 15,420 |
|
| Purchase of treasury stock | — |
| | — |
| | | — |
| | (98 | ) | | — |
| | (1,225 | ) | | — |
| | (1,225 | ) |
| Interest on notes receivable from stockholders | — |
| | — |
| | | (57 | ) | | — |
| | — |
| | — |
| | — |
| | (57 | ) |
| Repayment of notes receivable from stockholders | — |
| | — |
| | | 2,323 |
| | — |
| | — |
| | — |
| | — |
| | 2,323 |
|
| Stock-based compensation expense | — |
| | — |
| | | — |
| | — |
| | — |
| | 1,614 |
| | — |
| | 1,614 |
|
| Income tax benefit from employee stock options | — |
| | — |
| | | — |
| | — |
| | — |
| | 615 |
| | — |
| | 615 |
|
| Net income | — |
| | — |
| | | — |
| | — |
| | — |
| | — |
| | 22,951 |
| | 22,951 |
|
| Balance, December 31, 2012 | — |
| | — |
| | | — |
| | 45,392 |
| | 4 |
| | 35,970 |
| | (11,901 | ) | | 24,073 |
|
| Exercise of stock options | — |
| | — |
| | | — |
| | 2,924 |
| | 1 |
| | 1,767 |
| | — |
| | 1,768 |
|
| Stock-based compensation expense | — |
| | — |
| | | — |
| | — |
| | — |
| | 2,994 |
| | — |
| | 2,994 |
|
| Income tax benefit from employee stock options | — |
| | — |
| | | — |
| | — |
| | — |
| | 9,060 |
| | — |
| | 9,060 |
|
| Net income | — |
| | — |
| | | — |
| | — |
| | — |
| | — |
| | 36,339 |
| | 36,339 |
|
| Balance, December 31, 2013 | — |
| | — |
| | | — |
| | 48,316 |
| | 5 |
| | 49,791 |
| | 24,438 |
| | 74,234 |
|
| Exercise of stock options | — |
| | — |
| | | — |
| | 1,034 |
| | — |
| | 610 |
| | — |
| | 610 |
|
| Stock-based compensation expense | — |
| | — |
| | | — |
| | — |
| | — |
| | 3,707 |
| | — |
| | 3,707 |
|
| Income tax benefit from employee stock options | — |
| | — |
| | | — |
| | — |
| | — |
| | 3,221 |
| | — |
| | 3,221 |
|
| Net income | — |
| | — |
| | | — |
| | — |
| | — |
| | — |
| | 9,400 |
| | 9,400 |
|
| Balance, December 31, 2014 | — |
| | $ | — |
| | | $ | — |
| | 49,350 |
| | $ | 5 |
| | $ | 57,329 |
| | $ | 33,838 |
| | $ | 91,172 |
|
See accompanying notes to consolidated financial statements.
PERFORMANT FINANCIAL CORPORATION AND SUBSIDIARIES
Consolidated Statements of Cash Flows
|
| | | | | | | | | | | |
| | For the Years Ended December 31, |
| | 2014 | | 2013 | | 2012 |
| Cash flows from operating activities: | | | | | |
| Net income | $ | 9,400 |
| | $ | 36,339 |
| | $ | 22,951 |
|
| Adjustments to reconcile net income to net cash provided by operating activities: | | | | | |
| Loss on disposal of assets | 33 |
| | 1 |
| | 51 |
|
| Depreciation and amortization | 12,450 |
| | 10,655 |
| | 9,505 |
|
| Write-off of unamortized debt issuance costs | — |
| | — |
| | 335 |
|
| Deferred income taxes | (1,703 | ) | | (1,708 | ) | | (1,826 | ) |
| Stock-based compensation | 3,707 |
| | 2,994 |
| | 1,614 |
|
| Interest expense from debt issuance costs and amortization of discount note payable | 1,177 |
| | 1,247 |
| | 1,272 |
|
| Interest income on notes receivable from stockholders | — |
| | — |
| | (57 | ) |
| Changes in operating assets and liabilities: | | | | | |
| Trade accounts receivable | 4,602 |
| | 3,395 |
| | (3,646 | ) |
| Prepaid expenses and other current assets | (8,159 | ) | | (1,524 | ) | | 416 |
|
| Income tax receivable | (4,394 | ) | | — |
| | — |
|
| Other assets | 57 |
| | 451 |
| | (71 | ) |
| Accrued salaries and benefits | (6,446 | ) | | 2,538 |
| | 2,150 |
|
| Accounts payable | (1,013 | ) | | 980 |
| | 1,343 |
|
| Other current liabilities | 1,873 |
| | (2,941 | ) | | (1,223 | ) |
| Income taxes payable | (103 | ) | | (327 | ) | | (40 | ) |
| Deferred revenue | — |
| | (2,187 | ) | | (27 | ) |
| Estimated liability for appeals | 3,342 |
| | 10,905 |
| | 3,928 |
|
| Net payable to client | 12,110 |
| | — |
| | — |
|
| Other liabilities | 933 |
| | 388 |
| | 330 |
|
| Net cash provided by operating activities | 27,866 |
| | 61,206 |
| | 37,005 |
|
| Cash flows from investing activities: | | | | | |
| Purchase of property, equipment, and leasehold improvements | (10,146 | ) | | (12,503 | ) | | (11,356 | ) |
| Purchase of perpetual software license and computer equipment | — |
| | — |
| | (837 | ) |
| Net cash used in investing activities | (10,146 | ) | | (12,503 | ) | | (12,193 | ) |
| Cash flows from financing activities: | | | | | |
| Borrowing under notes payable | — |
| | — |
| | 156,000 |
|
| Borrowing under line of credit | — |
| | — |
| | 4,500 |
|
| Redemption of preferred stock | — |
| | — |
| | (60,286 | ) |
| Repayment of notes payable | (21,509 | ) | | (14,465 | ) | | (103,416 | ) |
| Repayment of line of credit | — |
| | — |
| | (12,698 | ) |
| Debt issuance costs paid | (653 | ) | | — |
| | (3,074 | ) |
| Proceeds from exercise of stock options | 610 |
| | 1,768 |
| | 175 |
|
| Proceeds from issuance of stock | — |
| | — |
| | 12,624 |
|
| Repayment of promissory notes from stockholders | — |
| | — |
| | 2,323 |
|
| Income tax benefit from employee stock options | 3,221 |
| | 9,060 |
| | 615 |
|
| Payment to stockholders | — |
| | — |
| | (1,761 | ) |
| Purchase of treasury stock | — |
| | — |
| | (1,225 | ) |
| Payment of purchase obligation | (1,000 | ) | | (1,000 | ) | | (750 | ) |
| Net cash used in financing activities | (19,331 | ) | | (4,637 | ) | | (6,973 | ) |
| Net increase (decrease) in cash and cash equivalents | (1,611 | ) | | 44,066 |
| | 17,839 |
|
| Cash and cash equivalents at beginning of year | 81,909 |
| | 37,843 |
| | 20,004 |
|
| Cash and cash equivalents at end of year | $ | 80,298 |
| | $ | 81,909 |
| | $ | 37,843 |
|
| Supplemental disclosures of cash flow information: | | | | | |
| Cash paid for income taxes | $ | 10,185 |
| | $ | 17,396 |
| | $ | 18,037 |
|
| Cash paid for interest | $ | 8,978 |
| | $ | 10,294 |
| | $ | 11,178 |
|
| Cash paid as debt extinguishment | $ | — |
| | $ | — |
| | $ | 3,344 |
|
| Supplemental disclosure of non-cash investing and financing activities: | | | | | |
| Obligation payable to sellers of perpetual license | $ | — |
| | $ | — |
| | $ | 3,250 |
|
| Issuance of common stock as part of debt issuance costs | $ | — |
| | $ | — |
| | $ | 2,796 |
|
See accompanying notes to consolidated financial statements.
PERFORMANT FINANCIAL CORPORATION AND SUBSIDIARIES
Notes To Consolidated Financial Statements
For the Years Ended December 31, 2014, 2013 and 2012
| |
1. | Summary of Significant Accounting Policies |
| |
(a) | Organization and Nature of Business |
Performant Financial Corporation (the Company) is a leading provider of technology-enabled recovery and analytics services in the United States. The Company's services help identify, restructure and recover delinquent or defaulted assets and improper payments for both government and private clients in a broad range of markets. Company clients typically operate in complex and regulated environments and outsource their recovery needs in order to reduce losses on billions of dollars of defaulted student loans, improper healthcare payments and delinquent state tax and federal treasury receivables. The Company generally provides our services on an outsourced basis, where we handle many or all aspects of the clients’ recovery processes.
The Company’s consolidated financial statements include the operations of Performant Financial Corporation (PFC), its wholly owned subsidiary Performant Business Services, Inc., and its wholly owned subsidiaries Performant Recovery, Inc. (Recovery), Performant Technologies, Inc., and Performant Europe Ltd. Effective August 13, 2012, we changed the name of our wholly owned subsidiary from DCS Business Services, Inc. (DCSBS) to Performant Business Services, Inc., and DCSBS’ wholly owned subsidiaries from Diversified Collection Services, Inc. (DCS), and Vista Financial, Inc. (VFI), to Performant Recovery, Inc., and Performant Technologies, Inc., respectively. PFC is a Delaware corporation headquartered in California and was formed in 2003. Performant Business Services, Inc. is a Nevada corporation founded in 1997. Recovery is a California corporation founded in 1976. Performant Technologies, Inc. is a California corporation that was formed in 2004.
The Company is managed and operated as one business, with a single management team that reports to the Chief Executive Officer.
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(b) | Principles of Consolidation |
The accompanying consolidated financial statements have been prepared in accordance with U.S. Generally Accepted Accounting Principles, or U.S. GAAP. The Company consolidates entities in which it has controlling financial interest, and as of December 31, 2014, all of the Company’s subsidiaries are 100% owned. All significant intercompany balances and transactions have been eliminated in consolidation.
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(c) | Use of Estimates in the Preparation of Consolidated Financial Statements |
The preparation of the consolidated financial statements in conformity with U.S. GAAP, requires management to make certain estimates and assumptions that affect the reported amounts of assets and liabilities, primarily accounts receivable, intangible assets, goodwill, estimated liability for appeals, accrued expenses, and disclosure of contingent assets and liabilities at the date of the consolidated financial statements and the reported amounts of revenues and expenses during the reporting periods. Our actual results could differ from those estimates.
On July 26, 2012, the Company effected a two-for-one stock split of the Company’s shares of Common Stock. Accordingly, all per share amounts, average shares outstanding, shares outstanding, and equity based compensation presented in the consolidated financial statements and notes have been adjusted retroactively to reflect the stock split. Shareholders’ deficit has been retroactively adjusted to give effect to the stock split for all periods presented by reclassifying the par value of the additional shares issued in connection with the stock split to additional paid-in capital. Concurrently with the stock split, the authorized Common Stock was increased from 25,000,000 shares to 60,000,000 shares. On August 15, 2012, the authorized Common Stock was increased to 500,000,000 shares and the authorized preferred stock was increased to 50,000,000 shares.
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(e) | Cash and Cash Equivalents |
Cash and cash equivalents include demand deposits and highly liquid debt instruments with original maturities of three months or less when purchased. These investments can include money market funds that invest in highly liquid U.S. government and agency obligations, certificates of deposit, bankers’ acceptances, and commercial paper.
The Company collects monies on behalf of its clients. Cash is often held on behalf of the clients in various trust accounts and is subsequently remitted to the clients based on contractual agreements. Cash held in these trust accounts for contracting agencies is not included in the Company’s assets (Note 12(a)).
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(f) | Hosted Service Installation and Implementation Deliverables |
In 2008, the Company entered into a long-term contract to provide hosted services to a client beginning in March 2009. The Company determined that certain installation and implementation deliverables were not separate units of accounting within the contract, and should be combined for revenue recognition purposes with the hosted service deliverable. Accordingly, revenue for these contract elements is being taken ratably from the commencement of hosted services in March 2009 through the contract period of March 2018. Additionally, the Company deferred the direct incremental costs associated with the installation and implementation deliverables, with the costs being expensed ratably from the March 2009 commencement of services through March 2018.
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(g) | Property, Equipment, and Leasehold Improvements |
Property, equipment, and leasehold improvements are stated at cost, net of accumulated depreciation. Furniture and equipment are depreciated using the straight-line method over estimated useful lives ranging from 5 to 7 years. Buildings are depreciated using the straight-line method over 31.5 years. Leasehold improvements are amortized using the straight-line method over the shorter of the estimated life of the asset or the remaining term of the lease. Computer software and computer hardware are depreciated using the straight-line method over 3 years and 5 years, respectively.
Maintenance and repairs are charged to expense as incurred. Improvements that extend the useful lives of assets are capitalized.
When property is sold or retired, the cost and the related accumulated depreciation are removed from the consolidated balance sheet and any gain or loss from the transaction is included in the consolidated statements of operations.
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(h) | Goodwill and Other Intangible Assets |
Goodwill represents the excess of purchase price and related costs over the fair value assigned to the net assets of businesses acquired. Goodwill is not amortized, but instead is reviewed for impairment at least annually. Impairment is the condition that exists when the carrying amount of goodwill is not recoverable and its carrying amount exceeds its fair value.
The Company performed a qualitative assessment of whether it is more likely than not that goodwill fair value is less than its carrying amount for 2014, 2013 and 2012 and concluded that there was no need to perform an impairment test.
Identifiable intangible assets consist of customer contracts and related relationships, a perpetual license, and covenants not to compete. Customer contracts and related relationships are amortized over their estimated useful life of 4 to 20 years. The perpetual license is amortized over its estimated useful life of 5 years.
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(i) | Impairment of Long-Lived Assets |
Long-lived assets are evaluated for impairment whenever events or changes in circumstances indicate that the carrying amount of such assets or intangibles may not be recoverable. Recoverability of assets to be held and used is measured by a comparison of the carrying amount of the assets to future undiscounted net cash flows expected to be generated by the assets. If such assets are considered to be impaired, the impairment to be recognized is measured by the amount by which the carrying amount of the assets exceeds the fair value of the assets. The Company did not recognize an impairment expense for intangible assets in 2014, 2013 and 2012.
The Company follows the provisions of Financial Accounting Standards Board (FASB) Accounting Standards Codification (ASC) Subtopic 350-40, Internal-Use Software, which specifies that costs incurred during the application stage of development should be capitalized. All other costs are expensed as incurred. During 2014, 2013 and 2012, costs of $7.2 million, $4.9 million and $5.4 million respectively, were capitalized for projects in the application stage of development, with depreciation expense of $4.0 million, $2.6 million and $2.4 million respectively, for completed projects.
Debt issuance costs represent loan and legal fees paid in connection with the issuance of long-term debt. Debt issuance costs are amortized to interest expense in accordance with key terms of the notes as amended.
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(l) | Revenues, Accounts Receivable, and Estimated Liability for Appeals |
Revenue is recognized upon the collection of defaulted loan and debt payments. Loan rehabilitation revenue is recognized when the rehabilitated loans are sold (funded) by clients. Incentive revenue is recognized upon receipt of official notification of incentive award from customers. Under the Company’s RAC contract with CMS, the Company recognizes revenues when the healthcare provider has paid CMS for a given claim or has agreed to an offset against other claims by the provider. Providers have the right to appeal a claim and may pursue additional appeals if the initial appeal is found in favor of CMS. The Company accrues an estimated liability for appeals at the time revenue is recognized based on the Company's estimate of the amount of revenue probable of being refunded to CMS following successful appeal. In addition, if the Company's estimate of the liability for appeals with respect to revenues recognized during a prior period changes, the Company increases or decreases current period accruals based on such change in estimated liability. At December 31, 2014, a total of $18.6 million was presented as an allowance against revenue, representing the Company’s estimate of claims that may be overturned. Of this amount, $0.0 million was related to amounts in accounts receivable and $18.6 million was related to commissions which had already been received. The zero allowance against accounts receivable at December 31, 2014 is due to the fact that the receivable from CMS is netted against an offsetting payable for overturned audits, and at December 31, 2014, the amount of the payable exceeded the amount of the receivable as discussed in note 1(m). The total accrued liability for appeals of $18.6 million has therefore been presented in the caption estimated liability for appeals at December 31, 2014. At December 31, 2013, the total appeals-related liability was $16.4 million, comprised of an estimated liability for appeals of $15.3 million and a contra-accounts-receivable estimated allowance for appeals of $1.1 million. The $18.6 million balance at December 31, 2014 and the $15.3 million balance as of December 31, 2013, represents the Company’s best estimate of the probable amount of losses related to appeals of claims for which commissions were previously collected. In addition to the $18.6 million amount accrued at December 31, 2014, the Company estimates that it is reasonably possible that it could be required to pay an additional amount up to approximately $5.4 million as a result of potentially successful appeals. To the extent that required payments by the Company exceed the amount accrued, revenues in the applicable period would be reduced by the amount of the excess.
For the year ended December 31, 2014, the Company had 4 clients whose individual revenues exceeded 10% of the Company’s total revenues. The dollar amount and percent of total revenue of each of the 4 clients is summarized in the table below (in thousands):
|
| | | | |
| Rank | | 2014 Revenue | | Percent of total revenue |
| 1 | | $53,211 | | 27.2% |
| 2 | | 29,444 | | 15.1% |
| 3 | | 29,171 | | 14.9% |
| 4 | | 24,855 | | 12.7% |
For the year ended December 31, 2013, the Company had 4 clients whose individual revenues exceeded 10% of the Company’s total revenues. The dollar amount and percent of total revenue of each of the 4 clients is summarized in the table below (in thousands):
|
| | | | |
| Rank | | 2013 Revenue | | Percent of total revenue |
| 1 | | $66,820 | | 26.2% |
| 2 | | 51,566 | | 20.2% |
| 3 | | 42,056 | | 16.5% |
| 4 | | 30,902 | | 12.1% |
For the year ended December 31, 2012, the Company had 5 clients whose individual revenues exceeded 10% of the Company’s total revenues. The dollar amount and percent of total revenue of each of the 5 clients is summarized in the table below (in thousands):
|
| | | | |
| Rank | | 2012 Revenue | | Percent of total revenue |
| 1 | | $54,130 | | 25.8% |
| 2 | | 39,183 | | 18.7% |
| 3 | | 29,027 | | 13.8% |
| 4 | | 25,469 | | 12.1% |
| 5 | | 22,397 | | 10.7% |
Revenue from the largest three customers was 57%, 63% and 58% of total revenue in 2014, 2013 and 2012, respectively. Accounts receivable due from these three customers were 39%, 59% and 63% of total trade receivables at December 31, 2014, 2013 and 2012, respectively. Trade accounts receivable are recorded at the invoiced amount and do not bear interest. Amounts collected on trade accounts receivable are included in net cash provided by operating activities in the consolidated statements of cash flows. The Company determines the allowance for doubtful accounts by specific identification. Account balances are charged off against the allowance after all means of collection have been exhausted and the potential for recovery is considered remote. The allowance for doubtful accounts was $0.0 million for both December 31, 2014 and December 31, 2013, respectively.
The Company nets outstanding accounts receivable invoices from an audit & recovery contract against payables for overturned audits. The overturned audits are netted against current fees due on the invoice to the client when they are processed by the client’s system. The “Net payable to client” balance of $12.1 million represents the excess of payables of $14.2 million for overturned audits offset by outstanding accounts receivable of $2.1 million at December 31, 2014. At December 31, 2013, the net of the outstanding accounts receivable invoices of $12.8 million was offset against a payable for overturned audits of $5.9 million for a net receivable of $6.9 million, presented in Accounts receivable. The Company expects that the net payable-to client balance will be paid to the client within the next twelve months.
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(n) | Prepaid Expenses and Other Current Assets |
At December 31, 2014, Prepaid expenses and other current assets includes $5.6 million of amounts estimated to become due from subcontractors. The Company employs subcontractors to audit claims as part of an audit & recovery contract, and to the extent that audits by these subcontractors are overturned on appeal, the fees associated with such claims are contractually refundable to the Company. At December 31, 2014, the receivable associated with estimated future overturns of subcontractor audits was $5.6 million. In addition, at December 31, 2014, Prepaid expenses and other current assets includes a net receivable of $3.0 million for subcontractor fees for already overturned audits refundable to the Company once the Company refunds its fees to the client as prime contractor. By comparison, at December 31, 2013, there was a net subcontractor payable under this contract of $3.7 million that was offset by a subcontractor receivable for estimated future overturns of subcontractor audits of $5.2 million, with the net asset of $1.5 million included in Other liabilities.
(o) Legal Expenses
The Company recognizes legal fees related to litigation as they are incurred.
(p) Comprehensive Income
The Company has no components of comprehensive income other than its net income. Accordingly, comprehensive income is equivalent to net income.
(q) Fair Value of Financial Instruments
The Company’s financial instruments include cash and cash equivalents, accounts receivable, accounts payable and accrued liabilities, short-term debt and long-term debt. The carrying values of cash and cash equivalents, accounts receivable, accounts payable, and accrued liabilities approximate their fair values based on or due to their short-term maturities. The carrying values of short-term debt and long-term debt approximate fair value, in which their variable interest rates approximate market rates.
(r) Income Taxes
The Company accounts for income taxes under the asset-and-liability method. Deferred income tax assets and liabilities are recognized for future tax consequences attributable to differences between the carrying value of assets and liabilities for financial reporting purposes and for taxation purposes. Deferred income tax assets and liabilities are measured using the enacted tax rates expected to apply to taxable income in the years in which those temporary differences are expected to be recovered or settled. The effect of a change in tax rates on deferred income tax assets and liabilities is recognized in income in the period that includes the enactment date. Valuation allowances are established when necessary to reduce deferred tax assets to the amount expected to be realized.
The Company recognizes the effect of income tax positions only if those positions are more likely than not of being sustained. Recognized income tax positions are measured at the largest amount that is greater than 50% likely of being realized. Changes in recognition or measurement are reflected in the period in which the change in judgment occurs.
(s) Preferred Stock
The carrying amounts of preferred stock are periodically increased by amounts representing dividends not currently declared or paid, but which would be payable under certain redemption features. Such increases in carrying amounts are recorded against retained earnings.
(t) Stock Options
The Company accounts for its employee stock-based compensation awards in accordance with FASB ASC Topic 718, Compensation – Stock Compensation. FASB ASC Topic 718 requires that all employee stock-based compensation is recognized as a cost in the financial statements and that for equity-classified awards, such cost is measured at the grant date fair value of the award. The Company estimates grant date fair value using the Black-Scholes-Merton option-pricing model.
FASB ASC Topic 718 also requires that excess tax benefits recognized in equity related to stock option exercises are reflected as financing cash inflows. The Company recognized income tax benefits resulting from the exercise of stock options in 2014, 2013 and 2012 of $3.2 million, $9.1 million and $0.6 million, respectively.
(u) Earnings per Share
For the years ended December 31, 2014 and 2013, basic earnings per share is calculated by dividing net income available to common shareholders by the sum of the weighted average number of common shares outstanding during the year. For the year ended December 31, 2012, basic earnings per share is calculated by dividing net income available to common shareholders by the weighted average number of common shares outstanding during the year plus the weighted average number of shares of Series A Convertible Preferred Stock outstanding during the period. The Series A Convertible Preferred Stock are included in the basic denominator because they could be converted into common shares for no cash consideration (via conversion units as further described in Note 7), and were thus considered outstanding common shares in computing basic earnings per share. Diluted earnings per share is calculated by dividing net income available to common shareholders by the weighted average number of common shares and dilutive common shares equivalents outstanding during the period. The Company’s common share equivalents consist of stock options and restricted stock units.
The following table reconciles the basic to diluted weighted average shares outstanding using the treasury stock method (shares in thousands):
|
| | | | | | | | |
| | Years Ended December 31, |
| | 2014 | | 2013 | | 2012 |
| Weighted average shares outstanding – basic | 48,816 |
| | 47,492 |
| | 43,985 |
|
| Dilutive effect of stock options | 1,018 |
| | 1,894 |
| | 3,614 |
|
| Weighted average shares outstanding – diluted | 49,834 |
| | 49,386 |
| | 47,599 |
|
For the year ended December 31, 2014, the Company excluded 2,894,013 options from the calculation of diluted earnings per share for the year ended December 31, 2014 because the options’ combined exercise price, unamortized fair value and excess tax benefits were greater during the year than the average price for the Company's common stock because their effect would be anti-dilutive.
(v) Recent Accounting Pronouncements
In May 2014, FASB issued an ASU that amends the FASB ASC by creating a new Topic 606, Revenue from Contracts with Customers. The new guidance will supersede the revenue recognition requirements in Topic 605, Revenue Recognition, and most industry-specific guidance on revenue recognition throughout the Industry Topics of the Codification. The core principle of the guidance is that an entity should recognize revenue to depict the transfer of promised goods or services to customers in an amount that reflects the consideration to which the entity expects to be entitled in exchange for those goods or services. To achieve that core principle, an entity should apply the following steps:
Step 1: Identify the contract(s) with a customer.
Step 2: Identify the performance obligations in the contract.
Step 3: Determine the transaction price.
Step 4: Allocate the transaction price to the performance obligations in the contract.
Step 5: Recognize revenue when (or as) the entity satisfies a performance obligation.
In addition, an entity should disclose sufficient qualitative and quantitative information to enable users of financial statements to understand the nature, amount, timing and uncertainty of revenue and cash flows arising from contracts with customers. The amendments in this ASU are effective for annual reporting periods beginning after December 15, 2016, including interim periods within that reporting period. Early adoption is not permitted. This amendment is to be either retrospectively adopted to each prior reporting period presented or retrospectively with the cumulative effect of initially applying this ASU recognized at the date of initial application. We are currently evaluating the impact of the adoption of this guidance to our consolidated financial statements.
In June 2014, FASB issued ASU 2014-12, Accounting for Share-Based Payments When the Terms of an Award Provide That a Performance Target Could Be Achieved after the Requisite Service Period ("ASU 2014-12"). ASU 2014-12 brings consistency to the accounting for share-based payment awards that require a specific performance target to be achieved in order for employees to become eligible to vest in the awards. ASU 2014-12 is effective for annual reporting periods (including interim periods) beginning after December 15, 2015, with early adoption permitted. The adoption of this guidance will not have a material effect on our consolidated financial statements.
2. Acquisition
In February 2012, the Company purchased a perpetual software license and computer equipment from HOPS, a non-public Florida company, in a transaction valued at $3.7 million. The purchase agreement calls for a total of $4.0 million in cash payments to be made over an approximate 3 year period, beginning with an initial payment of $0.8 million which was made in February 2012, followed by quarterly payments of $0.3 million. As part of the transaction valuation, these payments were discounted to a present value using an estimate of our incremental borrowing rate.
The HOPS proprietary software platform provides data filtering services for government and commercial health plans to help identify improper payments made to health providers, and enhances our existing service offering in recovery of improper payments.
The purchase is being treated as a business combination for accounting purposes; the following table summarizes the estimated fair values of the assets acquired at the acquisition date (in thousands):
|
| | | |
| | February 1, 2012 |
| Computer equipment | $ | 280 |
|
| Perpetual license | 3,250 |
|
| Customer relationships | 150 |
|
| Total identifiable assets acquired | $ | 3,680 |
|
The acquired intangible assets will be amortized over their estimated useful lives, which are 5 and 4 years for the perpetual license and customer relationships, respectively.
| |
3. | Property, Equipment, and Leasehold Improvements |
Property, equipment, and leasehold improvements consist of the following at December 31, 2014 and 2013 (in thousands):
|
| | | | | | | |
| | December 31, 2014 | | December 31, 2013 |
| Land | $ | 1,767 |
| | $ | 1,767 |
|
| Building and leasehold improvements | 5,966 |
| | 5,773 |
|
| Furniture, equipment, and automobile | 5,193 |
| | 4,932 |
|
| Computer hardware and software | 60,229 |
| | 52,021 |
|
| | 73,155 |
| | 64,493 |
|
| Less accumulated depreciation and amortization | (45,508 | ) | | (38,246 | ) |
| Property, equipment and leasehold improvements, net | $ | 27,647 |
| | $ | 26,247 |
|
Depreciation and amortization expense of property, equipment and leasehold improvements was $8.7 million, $6.9 million and $5.8 million for the years ended December 31, 2014, 2013 and 2012, respectively.
4. Identifiable Intangible Assets
Identifiable intangible assets consist of the following at December 31, 2014 and 2013 (in thousands):
|
| | | | | | | | | | | |
| December 31, 2014 | Gross Amounts | | Accumulated Amortization | | Net |
| Amortizable intangibles: | | | | | |
| Customer contracts and related relationships | $ | 62,451 |
| | $ | (34,774 | ) | | $ | 27,677 |
|
| Perpetual license | 3,313 |
| | (1,897 | ) | | 1,416 |
|
| Total intangible assets | $ | 65,764 |
| | $ | (36,671 | ) | | $ | 29,093 |
|
|
| | | | | | | | | | | |
| December 31, 2013 | Gross Amounts | | Accumulated Amortization | | Net |
| Amortizable intangibles: | | | | | |
| Customer contracts and related relationships | $ | 62,198 |
| | $ | (31,689 | ) | | $ | 30,509 |
|
| Perpetual license | 3,250 |
| | (1,246 | ) | | 2,004 |
|
| Total intangible assets | $ | 65,448 |
| | $ | (32,935 | ) | | $ | 32,513 |
|
For the years ended December 31, 2014, 2013 and 2012, amortization expense related to intangible assets amounted to $3.7 million, $3.7 million and $3.7 million, respectively.
The estimated aggregate amortization expense for each of the five following fiscal years is as follows (in thousands):
|
| | | |
| Year Ending December 31, | Amount |
| 2015 | $ | 3,803 |
|
| 2016 | 3,768 |
|
| 2017 | 3,167 |
|
| 2018 | 3,094 |
|
| 2019 | 3,090 |
|
| Thereafter | 12,171 |
|
| Total | $ | 29,093 |
|
5. Credit Agreement
On March 19, 2012, the Company recapitalized entering into a credit agreement (the Agreement) consisting of a Term A Loan of $57.0 million, a Term B Loan of $79.5 million, and a revolving credit facility of $11.0 million. In connection with the recapitalization, our old credit facility, scheduled to mature in 2012, was extinguished, and our indebtedness on the old facility was paid in full. As of December 31, 2011, the indebtedness on the old facility consisted of $33.2 million under the Term A-2 Loan, $62 million under the Term B Loan and $8.2 million under the line of credit. On June 28, 2012, the Agreement was amended to increase the Term B Loan to $99 million. Payments under the Agreement are as follows (in thousands):
|
| | | |
| Year Ending December 31, | Amount |
| 2015 |
| $9,820 |
|
| 2016 | 9,820 |
|
| 2017 | 9,119 |
|
| 2018 | 83,036 |
|
| Total |
| $111,795 |
|
Proceeds from the new Term A, Term B, and revolving credit facility borrowings were used along with $14.5 million of our cash to repay our old notes payable and line of credit in the amount of $103.4 million and to redeem 3,897,000 shares of Series A Convertible Preferred Stock plus accrued dividends for a total of $44.0 million. Fees paid in conjunction with the credit agreement totaled $8.1 million, including an agency fee for $1.5 million to an entity associated with our majority stockholder, and an agreement to grant 215,000 shares of Common Stock valued at approximately $2.8 million to an investment bank acting as advisor.
Proceeds from the additional Term B borrowings were used to redeem the remaining 1,399,000 shares of Series A Convertible Preferred Stock outstanding plus accrued dividends for a total of $16.3 million. Fees paid in conjunction with the credit agreement totaled $0.8 million, including an agency fee for $0.2 million to an entity associated with our majority stockholder. Remaining proceeds of $2.3 million were used along with existing cash to pay off the line of credit balance of $4.5 million.
The Term A Loan is charged interest either at Prime (subject to a 2.5% floor) +4.25% or LIBOR (subject to a 1.5% floor) +5.25%, which was 6.75% at December 31, 2014. The Term A loan requires quarterly payments of $2.5 million beginning in June 2012, with the remaining outstanding principal balance due March 19, 2017. As of December 31, 2014, the Term A loan ending balance, including the current portion was $26.1 million.
The Term B loan is charged interest at Prime +4.75% (subject to a 2.50% floor) or LIBOR (subject to a 1.50% floor) +5.75% which was 7.25% at December 31, 2014. The Term B loan requires quarterly payments of $0.2 million beginning in June 2012, with the outstanding principal balance due March 19, 2018. As of December 31, 2014, the Term B loan ending balance, including the current portion was $85.7 million.
The Company has a line of credit under the Agreement which allows for borrowings of up to $11 million. Borrowings accrue interest at Prime +4.25% or LIBOR +5.25%, which was 6.75% at December 31, 2014. Both the Prime and the LIBOR alternatives are subject to minimum rate floors. In addition, a facility fee of 0.5% is assessed on the commitment amount. There were no outstanding borrowings under this line of credit at December 31, 2014, but there are letters of credit outstanding in the amount of $2.0 million, leaving remaining borrowing capacity under the line of credit of $9.0 million at December 31, 2014. The line of credit expires in March 19, 2017.
The Agreement contains certain restrictive financial covenants, which require, among other things, that we meet a minimum fixed charge coverage ratio of 1.20 and maximum total debt to EBITDA ratio of 3.25. Additionally, these covenants restrict the Company and its subsidiaries’ ability to incur certain types or amounts of indebtedness, incur liens on certain assets, make material changes in corporate structure or the nature of its business, dispose of material assets, engage in a change in control transaction, make certain foreign investments, enter into certain restrictive agreements, or engage in certain transactions with affiliates. We were in compliance with all such covenants at December 31, 2014.
The Agreement contains a prepayment provision which requires the Company to perform an annual excess cash flow computation based on earnings before interest, taxes, depreciation and amortization compared to changes in working capital. Based on the results of this computation, in May 2014 and May 2013, the Company made payments of $11.5 million and $3.6 million, respectively, to the lenders.
During our March 19, 2012 recapitalization, debt issuance costs of $5.0 million were capitalized, including $1.5 million of agent fees paid to an entity associated with our majority stockholder, and $0.8 million paid to third parties for legal and other services and a grant of 215,000 shares of Common Stock issued as compensation to an investment bank acting as financial advisor valued at approximately $2.8 million, based upon a price of $13 per share. These costs are being amortized to expense over the life of the new loans.
The Company capitalized an additional $0.8 million related to our June 28, 2012 amendment to the Agreement, which included $0.2 million of agent fees paid to an entity associated with our majority stockholders, and $0.0 million paid to third parties for legal and other services. Debt issuance costs are being amortized to interest expense over the life of the new loans. Accumulated amortization of debt issuance costs amounted to $3.1 million at December 31, 2014.
Debt extinguishment costs of $3.7 million were expensed, including $3.3 million of fees paid to the lenders, and $0.3 million of unamortized debt issuance costs associated with the old credit facility.
On November 4, 2014, the Company entered into Amendment No. 2 to its Credit Agreement (Second Amendment) in which certain financial covenants were amended and additional financial covenants were added. Under the Second Amendment, the total debt to EBITDA ratio, which required the Company to maintain a ratio of 3.25 to1.0 as of September 30, 2014 was revised as follows:
for the computation periods ending December 31, 2014, March 31, 2015, June 30, 2015, September 30, 2015 and December 31, 2015, the Company must maintain a total debt to EBITDA ratio of 5.00 to1.0
for the computation periods ending March 31, 2016, June 30, 2016, September 30, 2016 and December 31, 2016, the Company must maintain a total debt to EBITDA ratio of 4.75 to1.0; and
for each computation period ending March 31, 2017 and thereafter, the Company must maintain a total debt to EBITDA ratio of 3.25 to1.0
In addition, the fixed charge coverage ratio of 1.20 to1.0, which was in effect for every computation period under the Credit Agreement as of September 30, 2014, has been revised under the Second Amendment to apply only to the computation periods ending September 30, 2014, March 31, 2017, and each computation period thereafter.
The Second Amendment also added an interest coverage ratio, defined as the ratio of EBITDA compared to interest expense paid in cash for the computation period. Under this new financial covenant, the Company is required to maintain:
an interest coverage ratio not to be less than 2.25 to1.0 for the computation periods ending December 31, 2014, March 31, 2015, June 30,2015, September 30, 2015, and December 31, 2015; and
an interest coverage ratio not to be less than of 2.50 to1.0 for the computation period ending March 31, 2016, June 30, 2016, September 30, 2016 and December 31, 2016.
In addition, among other things, under the Second Amendment, the Company is now required to maintain minimum adjusted cash balances of $35.0 million from November 4, 2014 through December 31, 2015, and minimum adjusted cash balances of $30.0 million from January 1, 2016 through December 31, 2016. Further, under the Second Amendment, the Company must maintain EBITDA for any trailing twelve month period of not less than $20.0 million beginning with the month ending November 30, 2014 through the month ending December 31, 2016. Also, pursuant to the terms of the Second Amendment, the lenders are not required to make new loans or issue new letters of credit under the Company's line of credit when the total debt to EBITDA ratio exceeds 3.25 to 1.0. Lastly, under the Second Amendment, capital expenditures of the Company in the years ending December 31, 2014, December 31, 2015, and December 31, 2016, are not permitted to exceed $12.5 million .
Interest charged under the Credit Agreement as revised by the Second Amendment is a function of the total debt to EBITDA ratio, adjusted quarterly. When the total debt to EBITDA ratio is greater than 4.0 to1.00, the Term A loan is charged interest either at Prime + 4.75% or LIBOR + 5.75% , while the Term B loan is charged interest either at Prime + 5.25% or LIBOR + 6.25% . When the total debt to EBITDA ratio is equal to or less than 4.0 to1.00, the Term A loan is charged interest either at Prime + 4.25% or LIBOR + 5.25% , while the Term B loan is charged interest either at Prime + 4.75% or LIBOR + 5.75% .
Fees for the Second Amendment of $0.5 million were paid to the lenders on November 4, 2014.
6. Commitments and Contingencies
The Company leases office facilities and certain equipment. In August 2013, we entered into a new lease agreement for office space for approximately 15,667 square feet in Grants Pass, Oregon. In January 2012, we renewed two of our facilities leases and entered into a new lease agreement for approximately 6,000 square feet in Livermore, California.
Future minimum rental commitments under non-cancelable leases as of December 31, 2014 are as follows (in thousands):
|
| | | |
| Year Ending December 31, | Amount |
| 2015 | $ | 2,290 |
|
| 2016 | 1,938 |
|
| 2017 | 1,485 |
|
| 2018 | 668 |
|
| 2019 | 601 |
|
| Thereafter | 815 |
|
| Total | $ | 7,797 |
|
Lease expense was $2.9 million, $2.6 million and $2.4 million for the years ended December 31, 2014, 2013 and 2012, respectively.
7. Capital Stock
Prior to August 15, 2012, the total number of shares of capital stock that the Company had authority to issue was 96,000,000, consisting of 18,000,000 shares of Series A Participating Senior Preferred Stock (Series A Preferred Stock), $0.0001 par value per share (Series A Preferred Stock); 18,000,000 shares of Series B Redeemable Senior Preferred Stock, $0.0001 par value per share (Series B Preferred Stock); and 60,000,000 shares of Common Stock, $0.0001 par value per share. On August 15, 2012, the authorized Common Stock was increased to 500,000,000 shares and the authorized preferred stock was increased to 50,000,000 shares.
| |
(a) | Series A Preferred Stock |
Issuance – On May 23, 2006, the Company sold 5,295,676 shares of Series A Preferred Stock to shareholders at a price of $5.67 per share, receiving gross proceeds of $30,000,000, and net proceeds of $29,925,000 after issuance costs of $75,000.
Retirement of Series of A Preferred Stock - On March 19, 2012, the Company recapitalized. As part of the recapitalization, 3,897,000 shares of Series A Convertible Preferred Stock were converted into conversion units, which consisted of one share of Series B Preferred Stock and one share of Common Stock. The Series B Preferred shares plus accrued dividends were redeemed for cash of $44 million, and 3,897,000 shares of Common Stock were issued to the holders of the redeemed Series A Convertible Preferred Stock.
In June 2012, the remaining 1,399,000 shares of Series A Convertible Preferred Stock were converted into conversion units of one share of Series B Preferred Stock and one share of Common Stock. The shares Series B Preferred Stock plus accrued dividends were redeemed for cash of $16.3 million and 1,399,000 shares of Common Stock were issued to the holders of the redeemed Series A Convertible Preferred Stock.
Dividends – The holders of Series A Preferred Stock were entitled to receive dividends as declared by the board of directors. The dividends accrued on a daily basis at the rate of 12% per annum on the sum of the Liquidation Value plus accumulated dividends and accrued and unpaid dividends thereon from the date of issuance of the Preferred Stock. As of December 31, 2011, the Company had accrued dividends payable of $28,248,000 recorded as an increase to the Series A Preferred Stock.
Voting – Each share of Series A Preferred Stock entitled the holder to cast a number of votes per share equal to the number of votes that the holder would be entitled to cast assuming that such shares of Series A Preferred Stock had been converted into shares of Common Stock.
Liquidation – In the event of any liquidation, dissolution, or winding up of the Company, before any distribution or payment to holders of Common Stock, but on parity with the holders of Series B Preferred Stock, holders of shares of Series A Preferred Stock were entitled to be paid an amount equal to the Liquidation Value of $5.67 per share plus any accumulated or accrued but unpaid dividends thereon. In addition to the payments set forth above, the holders of shares of Series A Preferred Stock were entitled to participate, on a parity and ratably on a per-share basis with the holders of Common Stock, with respect to all such distributions or payments that the holders of Series A Preferred Stock would have been entitled to receive with respect to the number of shares of Common Stock into which such holders’ shares of Series A Preferred Stock were convertible immediately prior to any relevant record date or payment date in connection with liquidation, dissolution, or winding up, but only to the extent that shares of Common Stock would have participated in such distributions or payments (and such payment shall be junior to all equity securities of the Company that rank senior to the Common Stock, including without limitation the Series B Preferred Stock).
Conversion – The Series A Preferred Stock was convertible into Conversion Units (as defined below), at a rate of one Conversion Unit for one share of Series A Preferred Stock. A Conversion Unit consisted of (i) the number of shares of Common Stock determined by dividing the Liquidation Value of the Series A Preferred Stock by the Conversion Price then in effect (the Common Portion) and (ii) one share of Series B Preferred Stock (the Series B Portion) subject to adjustments. If upon conversion there were any unpaid, accrued, or accumulated dividends due on the shares of Series A Preferred Stock, such dividends continued to be deferred, but were considered unpaid, accrued, or accumulated dividends (as the case may be) due on the Series B Preferred Stock.
Optional conversion – Each share of Series A Preferred Stock was convertible, at the option of the holder thereof, into a Conversion Unit at any time after the date of issuance of such share.
Automatic conversion – Each share of Series A Preferred Stock automatically could have been converted into Conversion Units on the date specified by written consent or agreement of the holders of a majority of the then outstanding shares of Series A Preferred Stock.
Conversion price – The initial Conversion Price of the shares issued in May 2006 was $5.67 per share. In order to prevent dilution of the conversion rights granted to the holders of the Series A Preferred Stock, the Conversion Price was subject to adjustment from time to time under certain circumstances. If the Company (i) declared a dividend on the Common Stock payable in shares of its capital stock (including Common Stock), (ii) subdivided the outstanding Common Stock, (iii) combined the outstanding Common Stock into a smaller number of shares, or (iv) issued any shares of its capital stock in a reclassification of the Common Stock, then, in each such case, the Conversion Price was to be proportionately adjusted so that, in connection with a conversion of the shares of Series A Preferred Stock after such date, the holder of shares of Series A Preferred Stock would have been entitled to receive the aggregate number and kind of shares of capital stock, which, if the conversion had occurred immediately prior to such date, the holder would have owned upon such conversion and been entitled to receive by virtue of such dividend, subdivision, combination, or reclassification.
(b) Issuance of Shares of Common Stock as Compensation
As part of the March 19, 2012 recapitalization, the Company issued to its financial advisor as compensation in connection with the debt portion of the recapitalization 215,000 shares of Common Stock valued at approximately $2.8 million based upon a price of $13 per share. This amount represents debt issuance costs and is being amortized to expense over the 5 to 6 year life of the loans described in Note 5.
(c) Initial Public Offering
In August 2012, the Company completed its initial public offering (IPO) in which we issued and sold 1,924,000 shares of Common Stock at a public offering price of $9.00 per share. The Company received net proceeds of $12.6 million after deducting underwriter discounts and commissions of $1.0 million and other offering expenses of approximately $3.6 million. In addition, a financial advisor to the Company was paid $0.9 million through the issuance of 103,500 shares of Common Stock valued at $9.00 per share.
| |
8. | Stock-based Compensation |
The Company established the 2004 DCS Holdings Stock Option Plan, the DCS Holdings, Inc. 2004 Equity Incentive Plan (Performant Financial Corporation is the new name of DCS Holdings, Inc.), the Performant Financial Corporation 2007 Stock Option Plan, and the Performant Financial Corporation 2012 Stock Incentive Plan (the Plans). Under the terms of the 2004 DCS Holdings Stock Option Plan, stock options may be granted for up to 4,000,000 shares of the Company’s authorized but unissued Common Stock. The 2004 DCS Holdings Stock Option Plan was terminated on the completion of the Company’s initial public offering in August 2012. No shares of our common stock are available under our 2004 Stock Option Plan other than for satisfying exercises of stock options granted under this plan prior to termination.
Under the terms of the DCS Holdings, Inc. 2004 Equity Incentive Plan, incentive and nonqualified stock options, stock bonuses, and rights to acquire restricted stock may be granted for up to 3,600,000 shares of the Company’s authorized but unissued Common Stock. Options granted under the DCS Holdings, Inc. 2004 Equity Incentive Plan generally vest over a four-year period. The Company’s DCS Holdings, Inc. 2004 Equity Incentive Plan was terminated on the completion of its initial public offering in August 2012. No shares of our common stock are available under our 2004 Equity Incentive Plan other than for satisfying exercises of stock options granted under this plan prior to termination.
Under the terms of the Performant Financial Corporation 2007 Stock Option Plan, incentive and nonqualified stock options may be granted for up to 4,000,000 shares of the Company’s authorized but unissued Common Stock. Options granted under the Performant Financial Corporation 2007 Stock Option Plan generally vest over a five-year period. Performant Financial Corporation 2007 Stock Option Plan was terminated on the completion of its initial public offering in August 2012. No shares of our common stock are available under our 2007 Stock Option Plan other than for satisfying exercises of stock options granted under this plan prior to termination.
The terms of the Performant Financial Corporation 2012 Stock Incentive Plan provide for the granting of incentive stock options within the meaning of Section 422 of the Code to employees and the granting of nonstatutory stock options, restricted stock, stock appreciation rights, stock unit awards and cash-based awards to employees, non-
employee directors and consultants. The Company has reserved 4,300,000 shares of common stock under the 2012 Plan. Options granted under the Performant Financial Corporation 2012 Stock Incentive Plan generally vest over periods of four or five-years.
The exercise price of incentive stock options shall generally not be less than 100% of the fair market value of the Common Stock subject to the option on the date that the option is granted. The exercise price of nonqualified stock options shall generally not be less than 85% of the fair market value of the Common Stock subject to the option on the date that the option is granted. Options issued under the Plans have a maximum term of 10 years and vest over schedules determined by the board of directors. Options issued under the Plans generally provide for immediate vesting of unvested shares in the event of a sale of the Company.
Total stock-based compensation expense charged as salaries and benefits expense in the consolidated statements of operations was $3.7 million, $3.0 million and $1.6 million for the years ended December 31, 2014, 2013, and 2012, respectively.
The following table sets forth a summary of our stock option activity for the year ended December 31:
|
| | | | | | | | | | | | |
| | Outstanding Options | | Weighted average exercise price per share | | Weighted average remaining contractual life (Years) | | Aggregate Intrinsic Value (in thousands) |
| Outstanding at December 31, 2011 | 5,664,750 |
| | $ | 0.80 |
| | 5.20 | | |
| Granted | 2,549,109 |
| | 10.32 |
| | | | |
| Forfeited | (19,077 | ) | | 7.99 |
| | | | |
| Exercised | (285,058 | ) | | 0.61 |
| | | | |
| Outstanding at December 31, 2012 | 7,909,724 |
| | 3.85 |
| | 5.89 | | |
| Granted | 313,600 |
| | 11.85 |
| | | | |
| Forfeited | (102,381 | ) | | 10.05 |
| | | | |
| Exercised | (2,908,122 | ) | | 0.60 |
| | | | |
| Outstanding at December 31, 2013 | 5,212,821 |
| | 6.03 |
| | 6.62 | | |
| Granted | 254,000 |
| | 9.69 |
| | | | |
| Forfeited | (410,625 | ) | | 10.53 |
| | | | |
| Exercised | (1,032,813 | ) | | 0.62 |
| | | | |
| Outstanding at December 31, 2014 | 4,023,383 |
| | $ | 7.18 |
| | 6.41 | | $ | 7,641 |
|
Vested, exercisable, and expected to vest(1) at December 31, 2014 | 3,980,118 |
| | $ | 7.16 |
| | 6.38 | | $ | 7,634 |
|
| Exercisable at December 31, 2014 | 2,475,868 |
| | $ | 5.32 |
| | 5.47 | | $ | 7,510 |
|
| |
(1) | Options expected to vest reflect an estimated forfeiture rate. |
The weighted-average grant-date exercise price of stock options granted during the years ended December 31, 2014, 2013 and 2012 was $9.69, $11.85 and $10.32, respectively, per share. The aggregate intrinsic value of our stock options (the amount by which the market price of the stock on the date of exercise exceeded the exercise price of the option) exercised during the years ended December 31, 2014, 2013 and 2012, was $8.8 million, $31.3 million and $2.9 million, respectively. At December 31, 2014, 2013, and 2012, there was $7.5 million, $10.5 million and $12 million, respectively, of unrecognized stock-based compensation expense related to non-vested stock-based compensation arrangements, which the Company expects to recognize over a weighted-average period of 2.74 years as stock-based compensation expense.
Net cash proceeds from the exercise of stock options were $0.6 million, $1.8 million and $0.2 million during 2014, 2013 and 2012, respectively. For the years ended December 31, 2014, 2013 and 2012, we realized a $3.2 million, $9.1 million and $0.6 million tax benefit from the exercise of stock options, respectively.
The fair value of each option grant was estimated using the Black-Scholes option pricing model. Expected volatilities are calculated based on the historical volatility data of comparable peer companies over a term comparable to the expected term of the options issued. The expected term of the award is determined based on the average of the vesting term and the contractual term. Management monitors share option exercise and employee termination patterns to estimate forfeiture rates within the valuation model. Separate groups of employees that have similar groups of employees with similar historical exercise behavior are considered separately for valuation purposes.
We estimated the fair value of options granted using a Black-Scholes option pricing model with the following assumptions:
|
| | | | | |
| | For the Years Ended December 31, |
| | 2014 | | 2013 | | 2012 |
| Expected volatility | 51.0% | | 54.2% | | 48.3% |
| Expected dividends | —% | | —% | | —% |
| Expected term (years) | 6.1 | | 6.2 | | 6.5 |
| Risk-free interest rate | 1.9% | | 1.5% | | 1.0% |
| Weighted-average estimated fair value of options granted during the year | $4.85 | | $6.23 | | $5.22 |
Valuation and Amortization Method – The Company estimates the fair value of stock options granted using the Black-Scholes-Merton option pricing model. The fair value is then amortized on a straight line basis over the requisite service periods of the awards, which is generally the vesting period. Stock options typically have a ten year life from the grant date and vesting periods of four to five years. The fair value of the Company’s common stock is based on the market price of the stock on the date of grant.
Expected Term – The Company’s expected term represents the period that the Company’s stock-based awards are expected to be outstanding. For awards granted subject only to service vesting requirements, the Company utilizes the simplified method under the provisions of FASB ASC 718-10-S99-1 (Staff Accounting Bulletin No. 107) for estimating the expected term of the stock-based award.
Expected Volatility – Because there is insufficient history of the Company’s stock price returns, the Company lacks sufficient historical volatility data for its equity awards. Accordingly, the Company calculates the expected volatility using a composite made up of comparable peer companies and an approximate 38% company weighting over a term comparable to the expected term of the options issued.
Expected Dividend – The Company has never paid dividends on its common shares and currently does not intend to do so. Accordingly, the dividend yield percentage is zero for all periods.
Risk-Free Interest Rate – The risk-free interest rate used in the Black Scholes valuation method is based on the U.S. Treasury constant maturity interest rate whose term is consistent with the expected life of our stock options.
| |
(b) | Restricted Stock Units |
The following table summarizes restricted stock unit activity for the year ended December 31:
|
| | | | | | |
| |
| | Weighted |
| |
| | average |
| | Number of | | grant date |
| | Awards | | fair value |
| Outstanding at December 31, 2012 | — |
| | $ | — |
|
| Granted | 5,263 |
| | 10.59 |
|
| Forfeited | — |
| | — |
|
| Vested and converted to shares | — |
| | — |
|
| Outstanding at December 31, 2013 | 5,263 |
| | $ | 10.59 |
|
| Granted | 488,545 |
| | 9.27 |
|
| Forfeited | (30,900 | ) | | 9.26 |
|
| Vested and converted to shares | (1,316 | ) | | 10.59 |
|
| Outstanding at December 31, 2014 | 461,592 |
| | $ | 9.28 |
|
| Expected to vest at December 31, 2014 | 438,510 |
| | $ | 9.28 |
|
At December 31, 2014 and 2013, there was $3.5 million and $0.1 million of compensation expense yet to be recognized related to non-vested restricted stock units. The unrecognized expense as of December 31, 2014 is expected to be recognized over the remaining weighted-average vested period of 3.3 years. 1,316 and none of the restricted stock units vested during the years ended December 31, 2014 and 2013, respectively. Restricted stock units granted under the Performant Financial Corporation 2012 Stock Incentive Plan generally vest over periods between
one and four years. The company did not realize any tax benefits related to the restricted stock units during the year ended December 31, 2014 and 2013.
9. Employee Benefit Plan
The Company has a 401(k) Salary Deferral Plan (the Plan) covering all full-time employees who have met certain service requirements. Employees may contribute a portion of their salary up to the maximum limit established by the Internal Revenue Code for such plans. Employer contributions are discretionary. No matching contributions were made during 2014, 2013 and 2012.
10. Income Taxes
The Company’s income tax expense (benefit) consists of the following (in thousands):
|
| | | | | | | | | | | |
| | 2014 | | 2013 | | 2012 |
| Current: | | | | | |
| Federal | $ | 6,802 |
| | $ | 21,526 |
| | $ | 15,142 |
|
| State | 2,600 |
| | 5,149 |
| | 3,470 |
|
| | 9,402 |
| | 26,675 |
| | 18,612 |
|
| Deferred: | | | | | |
| Federal | $ | (1,625 | ) | | $ | (866 | ) | | $ | (1,599 | ) |
| State | (78 | ) | | (842 | ) | | (227 | ) |
| | (1,703 | ) | | (1,708 | ) | | (1,826 | ) |
| Total Expense (Benefit) | $ | 7,699 |
| | $ | 24,967 |
| | $ | 16,786 |
|
A reconciliation of the income tax expense calculated using the applicable federal statutory rates to the actual income tax expense for the years ended December 31, 2014, 2013 and 2012 is as follows:
|
| | | | | | | | |
| | 2014 | | 2013 | | 2012 |
| Federal income at the statutory rate | 35 | % | | 35 | % | | 35 | % |
| State income tax, net of federal benefit | 10 | % | | 5 | % | | 5 | % |
| Permanent differences | 2 | % | | 1 | % | | 2 | % |
| Other | (2 | )% | | — | % | | — | % |
| | 45 | % | | 41 | % | | 42 | % |
The following table summarizes the components of the Company’s deferred tax assets and liabilities as of December 31, 2014, and 2013 (in thousands):
|
| | | | | | | |
| | 2014 | | 2013 |
| Deferred tax assets: | | | |
| Bad debt reserve | $ | 13 |
| | $ | 13 |
|
| Vacation accrual | 685 |
| | 1,020 |
|
| Nonqualified stock options | 3,059 |
| | 1,526 |
|
| Debt issuance costs | 643 |
| | 848 |
|
| Acquisition costs | 630 |
| | 158 |
|
| State tax deferral | 934 |
| | 1,474 |
|
| Deferred revenue | 273 |
| | 352 |
|
| State tax credits | 305 |
| | 290 |
|
| Net operating loss | 110 |
| | 47 |
|
| Estimated liability for appeals | 5,313 |
| | 4,277 |
|
| Other | 304 |
| | 118 |
|
| Total deferred tax assets | 12,269 |
| | 10,123 |
|
| Valuation allowance | (349 | ) | | (147 | ) |
| Total deferred tax assets net of valuation allowance | 11,920 |
| | 9,976 |
|
| Deferred tax liabilities: |
| |
|
| Identifiable intangible assets | (10,227 | ) | | (11,176 | ) |
| Fixed assets | (5,732 | ) | | (4,543 | ) |
| Other | (22 | ) | | (22 | ) |
| Total deferred tax liabilities | (15,981 | ) | | (15,741 | ) |
| Net deferred tax liabilities | $ | (4,061 | ) | | $ | (5,765 | ) |
The Company believes that it is more likely than not that the results of future operations will generate sufficient taxable income to realize the deferred tax assets, except for certain state tax credits. Income tax expense is allocated to the subsidiaries included in the consolidated tax return on the basis of the subsidiaries’ stand-alone tax provision.
The Company has a valuation allowance of approximately $0.3 million and $0.1 million, as of December 31, 2014 and December 31, 2013, respectively, primarily related to California enterprise zone tax credits for which it is not more likely than not that the tax benefit will be realized.
The Company has state tax credits of $0.3 million, which, due to the Assembly Bill 93 and Senate Bill 90 signed on July 11, 2013, are now limited to a 10 year carryforward, and will expire in 2024. The Company has state net operating loss carryforwards of $0.4 million which expire in 2020.
The following table reconciles the Company’s unrecognized tax benefits as of December 31, 2014 from its unrecognized tax benefits as of December 31, 2012 (in thousands):
|
| | | |
| Unrecognized tax benefits balance at December 31, 2012 | $ | 279 |
|
| Increase related to prior year tax positions | 357 |
|
| Increase related to current year tax positions | 49 |
|
| Settlements | (139 | ) |
| Unrecognized tax benefits balance at December 31, 2013 | 546 |
|
| Increase related to prior year tax positions | 444 |
|
| Decrease related to prior year tax positions | (42 | ) |
| Unrecognized tax benefits balance at December 31, 2014 | $ | 948 |
|
At December 31, 2014 and 2013, we had approximately $0.9 million and $0.5 million of unrecognized tax benefits, respectively. We do not expect any significant change in unrecognized tax benefits during the next twelve months. The Company records interest expense and penalties related to unrecognized tax benefits in income tax expense. The amount of accrued interest was not material at December 31, 2014 and 2013, respectively. No penalties were recognized in 2014 or accrued at December 31, 2014, and 2013 respectively. Unrecognized tax benefits of approximately 0.9 million which, if recognized, would favorably affect the Company’s effective income tax rate.
The Company files federal and state income tax returns. For years before 2010, the Company is no longer subject to California, Texas, and certain state state tax examinations. For tax year before 2011, the Company is no longer subject to Federal and certain other state tax examinations.
11. Related Party Transactions
Our notes payable, both before and after the recapitalization of March 19, 2012, are held by a number of lenders, some of whom also invested in and held our stock during 2012 and 2013. As a result, these entities are considered related parties. Interest expense under these arrangements totaled $10.3 million and $11.1 million for the years ended December 31, 2013 and 2012, respectively, and the debt extinguishment expense associated with the recapitalization totaled $3.3 million for the year ended December 31, 2012.
In an agreement dated April 13, 2012, the Company and an affiliate of Parthenon Capital Partners terminated an existing advisory services agreement, which called for quarterly payments of $0.1 million. As part of the April 13, 2012 termination agreement, the Company agreed to pay Parthenon Capital $1.3 million in equal quarterly installments of $0.1 million beginning in April 2012, provided that the remaining balance will become due and payable immediately upon the closing of an IPO or the sale of the Company. The Company paid two quarterly installments of $0.1 million and paid the remaining balance of $1.1 million on August 15, 2012, the date the IPO closed. In addition, the agreement specifies that the affiliate will be due a fee equal to 1% of the aggregate gross proceeds of an IPO offering or 1% of the aggregate consideration paid in connection with the sale of the Company, as applicable. The Company expensed and paid $0.9 million to Parthenon Capital Partners in August 2012 upon successful closing of the IPO.
12. Other Commitments and Contingencies
The Company collects principal and interest payments and collection costs on defaulted loans for various contracting agencies. Cash collections for some of the Company’s customers are held in trust in bank accounts controlled by the Company. The Company remits trust funds to the contracting agencies on a regular basis. The amount of cash held in trust and the related liability are separated from and not included in the Company’s assets and liabilities. Cash held in trust for customers totaled $9.7 million and $1.1 million at December 31, 2014 and 2013, respectively.
The Company, during the ordinary course of its operations, has been named in various legal suits and claims, several of which are still pending. In the opinion of management and the Company’s legal counsel, such legal actions will not have a material effect on the Company’s financial position or results of operations or cash flows.
13. Subsequent Events
On January 28, 2015, we entered into an Agreement and Plan of Merger (“Merger Agreement”) with Premier Healthcare Exchange, Inc., a Delaware corporation (“PHX”), pursuant to which, PHX would become our wholly-owned indirect subsidiary. The Merger Agreement contains customary closing conditions, including completion of a financing by us to fund the consideration payable under the terms of the Merger Agreement. The purchase price under the Merger Agreement is approximately $108 million in cash, subject to certain adjustments, and certain PHX stockholders will also exchange shares for $22 million of our common stock. We also could be obligated to pay up to an additional $19.1 million in cash pursuant to an earnout arrangement based on PHX in revenues in 2015. On January 28, 2015 we announced proposed concurrent public offerings of $80 million aggregate principal amount of convertible senior notes due 2020 and $50 million of shares of our common stock to finance the cash portion of the consideration payable under the Merger Agreement. On January 30, 2015, we announced our decision to withdraw the proposed public offerings of convertible senior notes and common stock. The Merger Agreement is currently terminable by either us or PHX without penalty, except that we are obligated to pay an expense termination fee of $750,000 in the event the merger is not completed due to our failure to complete the required financing of the consideration payable under the Merger Agreement.
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.
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| |
|
| |
| PERFORMANT FINANCIAL CORPORATION |
| | |
| By: | /s/ Lisa C. Im |
| | Lisa C. Im |
| | Chief Executive Officer |
Date: March 12,April 30, 2015
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints Lisa C. Im and Hakan L. Orvell, and each of them, his or her true and lawful attorneys-in-fact, each with full power of substitution, for him or her in any and all capacities, to sign any amendments to this report on Form 10-K and to file the same, with exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, hereby ratifying and confirming all that each of said attorneys-in-fact or their substitute or substitutes may do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Exchange Act of 1934, this report has been signed below by the following persons on behalf of the registrant and in the capacities and on the dates indicated.
|
| | | | |
| Name | | Title | | Date |
| | | |
| /s/ Lisa C. Im | | Chief Executive Officer (Principal Executive Officer) and Board Chair | | March 12,April 30, 2015 |
| Lisa C. Im | | | | |
| | | |
| /s/ Hakan L. Orvell | | Chief Financial Officer (Principal Financial and Accounting Officer) | | March 12,April 30, 2015 |
| Hakan L. Orvell | | | | |
| | | |
/s/ Todd R. FordFord* | | Director | | March 12,April 30, 2015 |
| Todd R. Ford | | | | |
| | | |
/s/ Brian P. GolsonGolson* | | Director | | March 12,April 30, 2015 |
| Brian P. Golson | | | | |
| | | |
/s/ Bradley F. FluegelFluegel* | | Director | | March 12,April 30, 2015 |
| Bradley F. Fluegel | | | | |
| | | |
/s/ Bruce HansenHansen* | | Director | | March 12,April 30, 2015 |
| Bruce Hansen | | | | |
| | | |
/s/ William D. HansenHansen* | | Director | | March 12,April 30, 2015 |
| William D. Hansen | | |
SCHEDULE II – VALUATION AND QUALIFYING ACCOUNTS
For the years ended December 31, 2014, 2013 and 2012
Allowance for doubtful accounts (in thousands):
|
| | | | | | | | | | | | | | | | |
| Description | Balance at Beginning of Period | | Additions Charged against Revenue | | Recoveries | | Charge-offs | | Balance at End of Period |
| 2014 | $ | 32 |
| | — |
| | — |
| | — |
| | $ | 32 |
|
| 2013 | $ | 65 |
| | — |
| | 2 |
| | (35 | ) | | $ | 32 |
|
| 2012 | $ | 77 |
| | — |
| | 2 |
| | (14 | ) | | $ | 65 |
|
Estimated allowance and liability for appeals – RAC Contract (in thousands):
|
| | | | | | | | | | | | | | |
| Description | Balance at Beginning of | | Additions Charged against Revenue | | Appeals found in Providers Favor | | Balance at End of Period | |
| 2014 | $ | 16,443 |
| | 8,624 |
| | (6,442 | ) | | $ | 18,625 |
| * |
| 2013 | $ | 5,577 |
| | 12,791 |
| | (1,925 | ) | | $ | 16,443 |
| * |
| 2012 | $ | 934 |
| | 8,589 |
| | (3,946 | ) | | $ | 5,577 |
| * |
| |
* | Includes $0, $1,160 and $1,199 related to the estimated allowance for appeals that apply to uncollected accounts receivable as of 2014, 2013 and 2012, respectively. |
EXHIBIT INDEXattorney.
|
| |
Exhibit
Number
By: | Description |
| |
2.1 | Agreement and Plan of Merger, dated as of January 28, 2015, by and among Performant Financial Corporation, Project Phoenix Merger Sub, Inc., Premier Healthcare Exchange, Inc. and the other parties thereto (incorporated by reference to Exhibit 2.1 to the Company's Current Report on Form 8-K filed January 29, 2015) |
| |
3.1 | Restated Certificate of Incorporation of Registrant (incorporated by reference to Exhibit 3.1(b) to the Company's Registration Statement on Form S-1/A filed July 30, 2012) |
| |
3.2 | Amended and Restated Bylaws of Registrant (incorporated by reference to Exhibit 3.2(b) to the Company's Registration Statement on Form S-1/A filed July 23, 2012) |
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4.2 | Amended and Restated Registration Rights Agreement, dated as of August 15, 2012, among the Registrant and the persons listed thereon (incorporated by reference to Exhibit 4.2 to the Company's Registration Statement on Form S-1/A filed July 23, 2012) |
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10.1 | Form of Indemnification Agreement between the Registrant and its officers and directors (incorporated by reference to Exhibit 10.1 to the Company's Registration Statement on Form S-1/A filed July 30, 2012) |
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10.2 | 2004 Equity Incentive Plan and form of agreements thereunder (incorporated by reference to Exhibit 10.2 to the Company's Registration Statement on Form S-1 filed July 3, 2012) |
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10.3 | 2004 DCS Holdings Stock Option Plan and form of agreements thereunder (incorporated by reference to Exhibit 10.3 to the Company's Registration Statement on Form S-1 filed July 3, 2012) |
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10.4 | 2007 Stock Option Plan and form of agreements thereunder (incorporated by reference to Exhibit 10.4 to the Company's Registration Statement on Form S-1 filed July 23, 2012) |
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10.5 | Recovery Audit Contractor contract by and between Diversified Collection Services, Inc. and Center for Medicare and Medicaid Services dated as of October 3, 2008, as amended (incorporated by reference to Exhibit 10.5 to the Company's Registration Statement on Form S-1/A filed July 23, 2012) |
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10.6 | Credit Agreement, dated as of March 19, 2012, by and among DCS Business Services, Inc., the Lenders party Hereto, Madison Capital Funding LLC, and ING Capital (incorporated by reference to Exhibit 10.6 to the Company's Registration Statement on Form S-1/A filed July 23, 2012) |
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10.7 | Form of Change of Control Agreement, as amended (incorporated by reference to Exhibit 10.7 to the Company's Registration Statement on Form S-1/A filed July 30, 2012) |
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10.8 | Employment Agreement between the Registrant and Lisa Im, dated as of April 15, 2012, as amended (incorporated by reference to Exhibit 10.8 to the Company's Registration Statement on Form S-1/A filed July 23, 2012) |
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10.9 | Employment Agreement between the Registrant and Jon D. Shaver dated as of March 31, 2003, as amended (incorporated by reference to Exhibit 10.9 to the Company's Registration Statement on Form S-1/A filed July 23, 2012) |
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10.10 | Repurchase Agreement between the Registrant and Lisa C. Im dated as of July 3, 2012 (incorporated by reference to Exhibit 10.10 to the Company's Registration Statement on Form S-1 filed July 3, 2012) |
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10.11 | Repurchase Agreement between the Registrant and Jon D. Shaver dated as of July 3, 2012 (incorporated by reference to Exhibit 10.11 to the Company's Registration Statement on Form S-1 filed July 3, 2012) |
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10.12 | Director Nomination Agreement between the Registrant and Parthenon DCS Holdings, LLC dated as of July 20, 2012 (incorporated by reference to Exhibit 10.12 to the Company's Registration Statement on Form S-1/A filed July 23, 2012) |
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10.13 | Advisory Services Agreement between Diversified Collection Services, Inc. and Parthenon Capital, LLC dated as of January 8, 2004, as amended (incorporated by reference to Exhibit 10.13 to the Company's Registration Statement on Form S-1/A filed July 23, 2012) |
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10.14 | Termination of the Advisory Services Agreement between Diversified Collection Services, Inc. and Parthenon Capital, LLC dated as of January 8, 2004, as amended, dated as of April 13, 2012 (incorporated by reference to Exhibit 10.14 to the Company's Registration Statement on Form S-1/A filed July 23, 2012) |
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10.15 | 2012 Stock Incentive Plan* |
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Exhibit
Number | Description |
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10.16 | Amendment No. 1 to Credit Agreement Credit Agreement, dated as of March 19, 2012, by and among DCS Business Services, Inc., the Lenders party thereto, Madison Capital Funding LLC, and ING Capital* |
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10.17 | Amendment No. 2 to Credit Agreement, dated as of November 4, 2014, by and among Performant Business Services, Inc., the Lenders thereto, and Madison Capital Funding LLC. (incorporated by reference to Exhibit 10.1 to the Company's Quarterly Report on Form 10-Q filed November 10, 2014) |
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21 | List of Subsidiaries |
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23 | Consent of KPMG LLP, Independent Registered Public Accounting Firm |
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24 | Powers of Attorney (included in the signature page to this report) |
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31.1 | Rule 13a-14(a)/15d-14(a) Certification, executed bys/ Lisa C. Im |
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31.2 | Rule 13a-14(a)/15d-14(a) Certification, executed by Hakan L. OrvellLisa C. Im |
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32.1 | Furnished Statement of the Chief Executive Officer under 18 U.S.C. Section 1350and Board Chair |
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32.2 | Furnished Statement of the Chief Financial Officer under 18 U.S.C. Section 1350 |
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101.INS | XBRL Instance Document |
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101.SCH | XBRL Taxonomy Extension Scheme |
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101.CAL | XBRL Taxonomy Extension Calculation Linkbase |
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101.DEF | XBRL Taxonomy Extension Definition Linkbase Document |
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101.LAB | XBRL Taxonomy Extension Label Linkbase |
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101.PRE | XBRL Taxonomy Extension Presentation Linkbase(Principal Executive Officer) |
* Filed herewith
