U.S. SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
Form 10-K/A
Amendment No. 1
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ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934
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For the fiscal year ended December 31, 2018
Commission File Number 000-51371
LINCOLN EDUCATIONAL SERVICES CORPORATION
(Exact name of registrant as specified in its charter)
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New Jersey
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57-1150621
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(State or other jurisdiction of incorporation or organization)
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(IRS Employer Identification No.)
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200 Executive Drive, Suite 340
West Orange, NJ 07052
(Address of principal executive offices)
(973) 736-9340
(Registrant’s telephone number, including area code)
Securities registered pursuant to Section 12(b) of the Act:
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Title of each class
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Name of exchange on which registered
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Common Stock, no par value per share
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The NASDAQ Stock Market LLC
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Securities registered pursuant to Section 12(g) of the Act:
None
Indicate by check mark if the registrant is a well-known seasoned issuer, as defined in Rule
405 of the Securities Act. Yes ☐ No ☒
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 ☒
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 ☒ No ☐
Indicate by check mark whether the registrant has submitted
electronically and posted on its corporate Website, if any, every Interactive Data File required to be submitted and posted pursuant to Rule 405 of Regulation S-T during
the preceding 12 months (or for such shorter period that the registrant was required to submit and post such files). Yes ☒ 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. ☒
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting
company or emerging growth company. See the definitions of “large accelerated filer,” “accelerated filer,” “smaller reporting company” and “emerging growth company” in Rule 12b-2 of the Exchange Act.
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Large accelerated filer ☐
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Accelerated filer ☐
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Non-accelerated filer ☐
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Smaller reporting company ☒
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Emerging growth company ☐
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If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new
or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ☐
Indicate by check mark whether the registrant is a shell company (as defined in Rule 12b-2 of
the Act). Yes ☐ No ☒
The aggregate market value of the 23,159,747 shares of common stock held by non-affiliates of the registrant issued and outstanding as of June 29, 2018, the
last business day of the registrant’s most recently completed second fiscal quarter, was $40,297,960. This amount is based on the closing price of the common stock on the Nasdaq Global Select Market of $1.74 per share on that date. Shares of
common stock held by executive officers and directors and persons who own 5% or more of the outstanding common stock have been excluded since such persons may be deemed affiliates. This determination of affiliate status is not a determination for
any other purpose.
The number of shares of the registrant’s common stock outstanding as of March 8, 2019 was 25,113,569.
Documents Incorporated by Reference
Certain information required in Part III of this Annual Report on Form 10-K will be included in a definitive proxy statement for the registrant’s
annual meeting of shareholders or an amendment to this Annual Report on Form 10-K, in either case filed with the Commission within 120 days after December 31, 2018, and is incorporated by reference herein.
EXPLANATORY NOTE
This Amendment No. 1 on Form 10-K/A (“Amendment No. 1”) amends the Annual Report of Lincoln Educational Services Corporation (the “Company”) on Form 10-K for the fiscal year ended December 31, 2018, as filed with the Securities and Exchange Commission on March 13, 2019 (the “Original Filing”).
This Amendment No. 1 is being filed to include the auditor tenure statement in Deloitte & Touche LLP's audit report contained in Part II, Item 8 which was omitted in the Original Filing
due to an administrative filing error in the Edgarizing process. New currently dated certifications from the Company's principal executive officer and principal financial officer pursuant to Sections 302 and 906 of the Sarbanes-Oxley Act of
2002 are attached hereto as Exhibits 31.1, 31.2 and 32.
Except as described above, this Amendment No.1 does not amend or update any other information contained in the Original Filing. The Company has included a complete copy of the Original Filing, as amended per above, in this filing.
LINCOLN EDUCATIONAL SERVICES CORPORATION AND SUBSIDIARIES
FOR THE FISCAL YEAR ENDED DECEMBER 31, 2018
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PART I.
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1
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ITEM 1.
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1
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ITEM 1A.
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18
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ITEM 1B.
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26
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ITEM 2.
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27
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ITEM 3.
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27
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ITEM 4.
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27
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PART II.
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27
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ITEM 5.
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27
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ITEM 6.
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31
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ITEM 7.
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32
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ITEM 7A.
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49
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ITEM 8
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49
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ITEM 9.
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49
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ITEM 9A.
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49
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ITEM 9B.
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50
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PART III.
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52
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ITEM 10.
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52
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ITEM 11.
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52
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ITEM 12.
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52
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ITEM 13.
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52
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ITEM 14.
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52
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PART IV.
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53
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ITEM 15.
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53
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Forward-Looking Statements
This Annual Report on Form 10-K contains “forward-looking statements,” within the meaning of Section 21E of the Securities
Exchange Act of 1934, as amended, which include information relating to future events, future financial performance, strategies, expectations, competitive environment, regulation and availability of resources. These forward-looking statements
include, without limitation, statements regarding: proposed new programs; expectations that regulatory developments or other matters will or will not have a material adverse effect on our consolidated financial position, results of operations or
liquidity; statements concerning projections, predictions, expectations, estimates or forecasts as to our business, financial and operating results and future economic performance; and statements of management’s goals and objectives and other
similar expressions concerning matters that are not historical facts. Words such as “may,” “should,” “could,” “would,” “predicts,” “potential,” “continue,” “expects,” “anticipates,” “future,” “intends,” “plans,” “believes,” “estimates,” and
similar expressions, as well as statements in future tense, identify forward-looking statements.
Forward-looking statements should not be read as a guarantee of future performance or results, and will not necessarily be accurate
indications of the times at, or by, which such performance or results will be achieved. Forward-looking statements are based on information available at the time those statements are made and/or management’s good faith belief as of that time with
respect to future events, and are subject to risks and uncertainties that could cause actual performance or results to differ materially from those expressed in or suggested by the forward-looking statements. Important factors that could cause
such differences include, but are not limited to:
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our failure to comply with the extensive existing regulatory framework applicable to our industry or our failure to obtain timely regulatory approvals in connection with
a change of control of our company or acquisitions;
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the promulgation of new regulations in our industry as to which we may find compliance challenging;
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our success in updating and expanding the content of existing programs and developing new programs in a cost-effective manner or on a timely basis;
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our ability to implement our strategic plan;
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risks associated with changes in applicable federal laws and regulations including pending rulemaking by the U.S. Department of Education;
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uncertainties regarding our ability to comply with federal laws and regulations regarding the 90/10 rule and cohort default rates;
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risks associated with maintaining accreditation
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risks associated with opening new campuses and closing existing campuses;
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risks associated with integration of acquired schools;
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industry competition;
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conditions and trends in our industry;
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general economic conditions; and
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other factors discussed under the headings “Business,” “Risk Factors” and “Management’s Discussion and
Analysis of Financial Condition and Results of Operations.”
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Forward-looking statements speak only as of the date the statements are made. Except as required under the federal securities laws and
rules and regulations of the United States Securities and Exchange Commission (the “SEC”), we undertake no obligation to update or revise forward-looking statements to reflect actual results, changes in assumptions or changes in other factors
affecting forward-looking information. We caution you not to unduly rely on the forward-looking statements when evaluating the information presented herein.
PART I.
Overview
Lincoln Educational Services Corporation and its subsidiaries (collectively, the “Company”,
“we”, “our” and “us”, as applicable) provide diversified career-oriented post-secondary education to recent high school graduates and working adults. The Company, which currently operates 22 schools in 14 states, offers programs in
automotive technology, skilled trades (which include HVAC, welding and computerized numerical control and electrical and electronic systems technology, among other programs), healthcare services (which include nursing, dental assistant and
medical administrative assistant, among other programs), hospitality services (which include culinary, therapeutic massage, cosmetology and aesthetics) and information technology (which consists of information technology programs). The schools
operate under Lincoln Technical Institute, Lincoln College of Technology, Lincoln Culinary Institute, and Euphoria Institute of Beauty Arts and Sciences and associated brand names. Most of the campuses serve major metropolitan markets and each
typically offers courses in multiple areas of study. Five of the campuses are destination schools, which attract students from across the United States and, in some cases, from abroad. The Company’s other campuses primarily attract students from
their local communities and surrounding areas. All of the campuses are nationally or regionally accredited and are eligible to participate in federal financial aid programs managed by the U.S. Department of Education (the “DOE”) and applicable
state education agencies and accrediting commissions, which allow students to apply for and access federal student loans as well as other forms of financial aid. The Company was
incorporated in New Jersey in 2003 but a predecessor entity had opened its first campus in Newark, New Jersey in 1946.
Our business is organized into three reportable business segments: (a) Transportation and Skilled Trades, (b) Healthcare and Other Professions (“HOPS”),
and (c) Transitional, which refers to businesses that have been or are currently being taught out. As of December 31, 2018, we had 10,525 students enrolled at 22 campuses. Our
average enrollment for the year ended December 31, 2018 was 10,591 students which represented a decrease of 1.7% from average enrollment in 2017. For the year ended December 31, 2018, our revenues were $263.2 million, which represented an
increase of 0.5 % from the prior year. For more information relating to our revenues, profits and financial condition, please refer to “Management’s Discussion and Analysis of Financial Condition and Results of Operations” and our consolidated
financial statements included in this Annual Report on Form 10-K.
We believe that we provide our students with the highest quality career-oriented training available for our areas of study in our markets. We offer programs
in areas of study that we believe are typically underserved by traditional providers of post-secondary education and for which we believe there exists significant demand among students and employers. Furthermore, we believe our convenient class
scheduling, career-focused curricula and emphasis on job placement offer our students valuable advantages that have been neglected by the traditional academic sector. By combining substantial hands-on training with traditional classroom-based
training led by experienced instructors, we believe we offer our students a unique opportunity to develop practical job skills in many of the key areas of expected job demand. We believe these job skills enable our students to compete effectively
for employment opportunities and to pursue on-going salary and career advancement.
Available Information
Our website is www.lincolnedu.com. We make available on
this website our Annual Reports on Form 10-K, Quarterly Reports on Form 10-Q, Current Reports on Form 8-K, annual proxy statements on Schedule 14A and amendments to those reports and statements as soon as reasonably practicable after we
electronically file or furnish such materials to the Securities and Exchange Commission (the “SEC”). You can access this information on our website, free of charge, by clicking on “Investor Relations.” The information contained on or connected
to our website is not a part of this Annual Report on Form 10-K. We will provide paper copies of such filings free of charge upon request. In addition, the SEC maintains an Internet site that contains reports, proxy and information statements and
other information regarding us, which is available at www.sec.gov.
Business Strategy
Our goal is to strengthen our position as a leading provider of career‑oriented post-secondary education by continuing to pursue the following strategy:
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Expand Existing Areas of Study and Existing Facilities. We
believe we can leverage our operations to expand our program offerings in existing areas of study and expand into new high-demand areas of study in the Transportation and Skilled Trades segment to capitalize on demand from students
and employers in our target markets. Whenever possible, we seek to replicate programs across our campuses.
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Maximize Utilization of Existing Facilities. We are focused
on improving capacity utilization of existing facilities through increased enrollments, the introduction of new programs and partnerships with industry.
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Expand Market. We believe that we can enter new markets and
broaden the Lincoln brand by partnering with nationally recognized brands to provide the skills needed to train our nation’s workforce. We continue to expand our industry relationships both to attract new students and to offer our
graduates more employment opportunities. We continue to establish partnerships with companies like BMW, Chrysler (FCA), Hussmann, Volkswagen and Audi that will enable graduates to receive higher wages. We expect to continue investing
in marketing, recruiting and retention resources to increase enrollment.
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Programs and Areas of Study
We structure our program offerings to provide our students with a practical, career-oriented education and position them for attractive
entry-level job opportunities in their chosen fields. Our diploma/certificate programs typically take between 19 to 136 weeks to complete, with tuition ranging from $7,000 to $41,000. Our associate’s degree programs typically take between 64 to
98 weeks to complete, with tuition ranging from $26,000 to $37,000. As of December 31, 2018, all of our schools offer diploma and certificate programs and nine of our schools are currently approved to offer associate’s degree programs. In order
to accommodate the schedules of our students and maximize classroom utilization at some of our campuses, we typically offer courses four to five days a week in three shifts per day and start new classes every month. We update and expand our
programs frequently to reflect the latest technological advances in the field, providing our students with the specific skills and knowledge required in the current marketplace. Classroom instruction combines lectures and demonstrations by our
experienced faculty with comprehensive hands-on laboratory exercises in simulated workplace environments.
The following table lists the programs offered as of December 31, 2018:
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Current Programs Offered
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Area of Study
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Associate's Degree
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Diploma and Certificate
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Automotive
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Automotive Service Management, Collision Repair & Refinishing Service Management, Diesel & Truck Service Management
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Automotive Mechanics, Automotive Technology, Automotive Technology with Audi, Automotive Technology with BMW FastTrack, Automotive
Technology with Mopar X-Press, Automotive Technology with High Performance, Automotive Technology with Volkswagon, Collision Repair and Refinishing Technology, Diesel & Truck Mechanics, Diesel & Truck Technology, Diesel &
Truck Technology with Alternate Fuel Teechnology, Diesel & Truck Technology with Transport Refrigeration, Diesel & Truck with Automotive Technology, Heavy Equipment Maintenance Technology, Heavy Equipment and Truck Technology
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Skilled Trades
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Electronic Engineering Technology, HVAC, Electronics Systems Service Management
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Electrical Technology, Electrical & Electronics Systems Technician, HVAC, Welding Technology, Welding with Introduction to
Pipefitting, CNC
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Health Sciences
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Medical Assisting Technology, Medical Office Management
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Medical Office Assistant, Medical Assistant, Patient Care Technician, Medical Coding & Billing, Dental Assistant, Licensed Practical
Nursing
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Hospitality Services
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Culinary Arts, Cosmetology, Aesthetics, International Baking and Pastry, Nail Technolgy, Therapeutic Massage & Bodywork Technician
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Information Technology
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Computer Networking and Support
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Computer & Network Support Technician
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Automotive Technology. Automotive technology
is our largest area of study, with 40% of our total average student enrollment for the year ended December 31, 2018. Our automotive technology programs are 28 to 136 weeks in length, with tuition rates of $14,000 to $41,000. We believe we are a
leading provider of automotive technology education in each of our local markets. Graduates of our programs are qualified to obtain entry level employment ranging from positions as technicians and mechanics to various apprentice level positions.
Our graduates are employed by a wide variety of companies, ranging from automotive and diesel dealers, to independent auto body paint and repair shops to trucking and construction companies.
As of December 31, 2018, 12 campuses offered programs in automotive technology and most of these campuses offer other technical programs. Our campuses in
East Windsor, Connecticut; Nashville, Tennessee; Grand Prairie, Texas; Indianapolis, Indiana; and Denver, Colorado are destination campuses, attracting students throughout the United States and, in some cases, from abroad.
Skilled Trades. For the year ended December
31, 2018, skilled trades was our second largest area of study, representing 27% of our total average student enrollment. Our skilled trades programs are 28 to 98 weeks in length, with tuition rates of $16,000 to $34,000. Our skilled trades
programs include electrical, heating and air conditioning repair, welding, computerized numerical control and electronic & electronic systems technology. Graduates of our programs are qualified to obtain entry level employment positions such
as electrician, cable installer, welder, wiring and heating, ventilating and air conditioning, or HVAC installer. Our graduates are employed by a wide variety of employers, including residential and commercial construction, telecommunications
installation companies and architectural firms. As of December 31, 2018, we offered skilled trades programs at 14 campuses.
Health Sciences. For the year ended December
31, 2018, 26% of our total average student enrollment was in our health science program. Our health science programs are 35 to 104 weeks in length, with tuition rates of $13,000 to $30,000. Graduates of our programs are qualified to obtain
positions such as licensed practical nurse, registered nurse, dental assistant, medical assistant, medical administrative assistant, and claims examiner. Our graduates are employed by a wide variety of employers, including hospitals,
laboratories, insurance companies, and doctors' offices. Our practical nursing and medical assistant programs are our largest health science programs. As of December 31, 2018, we offered health science programs at 10 of our campuses.
Hospitality Services. For the year ended
December 31, 2018, 5% of our total average student enrollment was in our hospitality services programs. Our hospitality services programs are 19 to 88 weeks in length, with tuition rates of $7,000 to $21,000. Our hospitality programs include
culinary, therapeutic massage, cosmetology and aesthetics. Graduates work in salons, spas, cruise ships or are self-employed. We offer massage programs at one campus and cosmetology programs at one campus. Our culinary graduates are employed
by restaurants, hotels, cruise ships and bakeries. As of December 31, 2018, we offered culinary programs at two campuses.
Information Technology. For the year ended
December 31, 2018, 2% of our total average student enrollment was in our information technology programs. Our information technology programs are 40 to 80 weeks in length, with tuition rates of $20,000 to $33,000. We have focused our current
information technology, or IT, program offerings on those that are most in demand, such as our computer and network support technician. Our graduates obtain entry level positions with both small and large corporations. As of December 31, 2018,
we offered these programs at four of our campuses.
Recent Developments
On July 9, 2018, New England Institute of Technology at Palm Beach, Inc. (“NEIT”), a wholly-owned subsidiary of the Company, entered into a commercial
contract (the “Sale Agreement”) with Elite Property Enterprise, LLC, pursuant to which NEIT agreed to sell to Elite Property Enterprise, LLC the real property owned by NEIT located at 1126 53rd Court North, Mangonia Park, Palm Beach County,
Florida and the improvements and certain personal property located thereon (the “Mangonia Park Property”), for a cash purchase price of $2,550,000. On August 23, 2018, NEIT consummated the sale of the Mangonia Park Property. At closing, NEIT
paid a real estate brokerage fee equal to 5% of the gross sales price and other customary closing costs and expenses. Pursuant to the provisions of the Company’s credit facility with its lender, Sterling National Bank, the net cash proceeds of
the sale of the Mangonia Park Property were deposited into an account with the lender to serve as additional security for loans and other financial accommodations provided to the Company and its subsidiaries under the credit facility. In
December 2018, the funds were used to repay the outstanding principal balance of the loans outstanding under the credit facility and such repayment permanently reduced the revolving loan availability under the credit facility.
Effective December 31, 2018, the Company completed the teach-out and ceased operation of its Lincoln College of New England (“LCNE”) campus at Southington,
Connecticut. The decision to close the LCNE campus followed the previously reported placement of LCNE on probation by the college’s institutional accreditor, the New England Association of Schools and Colleges (“NEASC”). After evaluating
alternative options, the Company concluded that teaching out and closing the campus was in the best interest of the Company and its students. Subsequent to formalizing the LCNE closure decision in August 2018, the Company partnered with Goodwin
College, another NEASC- accredited institution in the region, to assist LCNE students to complete their programs of study. The majority of the LCNE students will continue their education at Goodwin College thereby limiting some of the Company’s
closing costs. The revenue, net loss and ending population of LCNE, as of December 31, 2017, were $8.4 million, $1.6 million and 397 students, respectively. The Company recorded net costs associated with the closure of the LCNE campus in 2018
of approximately $4.3 million, including (i) $1.6 million in connection with the termination of the LCNE campus lease, which is the net present value of the remaining obligation, to be paid in equal monthly installments through January 2020, (ii)
approximately $700,000 of severance payments and (iii) $2.0 million of additional operating losses related to no longer enrolling additional students during 2018. LCNE results, previously reported in the HOPS segment, are now included in the
Transitional segment as of December 31, 2018.
Marketing and Student Recruitment
We utilize a variety of marketing and recruiting methods to attract students and increase enrollment. Our marketing and recruiting efforts are targeted at
prospective students who are high school graduates entering the workforce, or who are currently underemployed or unemployed and require additional training to enter or re-enter the workforce.
Marketing and Advertising. We utilize a
fully integrated marketing approach in our lead generation and admissions process that includes the use of traditional media such as television, radio, billboards, direct mail, a variety of print media and event marketing campaigns. Our digital
marketing efforts, which include paid search, search engine optimization, online video and display advertising and social media, have grown significantly in recent years and currently drive the majority of our new student leads and enrollments.
Our website’s integrated marketing campaigns direct prospective students to call us or visit the Lincoln website where they will find details regarding our programs and campuses and can request additional information regarding the programs that
interest them. Our internal systems enable us to closely monitor and track the effectiveness of each marketing execution on a daily or weekly basis and make adjustments accordingly to enhance efficiency and limit our student acquisition costs.
In 2018, we rolled out a new advertising campaign that included the production of creative video that aired on traditional television stations as well as
through digital and social media channels. Our new campaign theme “Put Your Potential to Work” was also incorporated into various other communications
channels, including billboards, radio and print. In addition, new marketing material was developed to support key program areas for us, which include automotive, skilled trades, healthcare, cosmetology and culinary. Marketing continued to
support the efforts of our Admissions teams by developing standardized information packages that provide prospective students consistent messaging and branding throughout all of our campuses.
Referrals. Referrals from current students, high school counselors and satisfied graduates and their employers have historically represented 16% of our new enrollments. Our school
administrators actively work with our current students to encourage them to recommend our programs to prospective students. We endeavor to build and retain strong relationships with high school guidance counselors and instructors by offering
annual seminars at our training facilities to further familiarize these individuals on the strengths of our programs.
Recruiting. Our recruiting efforts are
conducted by a group of approximately 250 campus-based and field representatives who meet directly with prospective students during presentations conducted at high schools, in the prospective students’ homes or during a visit to one of our
campuses.
During 2018, we recruited approximately 23% of our students directly out of high school. Field sales continues to be a large part of our business and
developing local community relationships is one of our most important functions. In 2018, we added one field representative to our team who is focused on recruitment of prospectus students from the military in an effort to aid veterans
transitioning to the civilian work force when their service commitment is completed.
Student Admissions, Enrollment and Retention
Admissions. In order to attend our schools,
students must complete an application and pass an entrance assessment. While each of our programs has different admissions criteria, we screen all applications and counsel prospective students on the most appropriate program to increase the
likelihood that our students complete the requisite coursework and obtain and sustain employment following graduation.
Enrollment. We enroll students continuously
throughout the year, with our largest classes enrolling in late summer or early fall following high school graduation. We had 10,525 students enrolled as of December 31, 2018 and our average enrollment for the year ended December 31, 2018 was
10,591 students, a decrease of 1.7% in average enrollment from December 31, 2017. We had 10,159 students enrolled as of December 31, 2017 and our average enrollment for that year was 10,772 students, a decrease of 9.2% in average enrollment from
December 31, 2016.
Retention. To maximize student retention, the staff at each school is trained to recognize the early warning signs of a potential drop and to assist and advise students on academic, financial, employment and personal
matters. We monitor our retention rates by instructor, course, program and school. When we become aware that a particular instructor or program is experiencing a higher than normal dropout rate, we quickly seek to determine the cause of the
problem and attempt to correct it. When we identify that a student is experiencing difficulty academically, we offer tutoring.
Job Placement
We believe that assisting our graduates in securing employment after completing their program of study is critical to our ability to attract high quality
students and enhancing our reputation in the industry. In addition, we believe that high job placement rates result in low student loan default rates, an important requirement for continued participation in Title IV of the Higher Education Act of
1965, as amended (“Title IV Programs”). See "Regulatory Environment—Regulation of Federal Student Financial Aid Programs." Accordingly, we dedicate significant resources to maintaining an effective graduate placement program. Our non-destination
schools work closely with local employers to ensure that we are training students with skills that employers need. Each school has an advisory council comprised of local employers who provide us with direct feedback on how well we are preparing
our students to succeed in the workplace. This enables us to tailor our programs to the marketplace. The placement staff in each of our destination schools maintains databases of potential employers throughout the country, allowing us to more
effectively assist our graduates in securing employment in their career field upon graduation. Throughout the year, we hold numerous job fairs at our facilities where we provide the opportunity for our students to meet and interact with potential
employers. In addition, many of our schools have internship programs that provide our students with opportunities to work with employers prior to graduation. For example, some of the students in our automotive programs have the opportunity to
complete a portion of their hands-on training in an actual work environment. In addition, some of our students in health sciences programs are required to participate in an externship program during which they work in the field as part of their
career training. We also assist students with resume writing, interviewing and other job search skills.
Faculty and Employees
We hire our faculty in accordance with established criteria, including relevant work experience, educational background and accreditation and state
regulatory standards. We require meaningful industry experience of our teaching staff in order to maintain the quality of instruction in all of our programs and to address current and industry-specific issues in our course content. In addition,
we provide intensive instructional training and continuing education, including quarterly instructional development seminars, annual reviews, technical upgrade training, faculty development plans and weekly staff meetings.
The staff of each school typically includes a school director, a director of graduate placement, an education director, a director of student services, a
financial-aid director, an accounting manager, a director of admissions and instructors, all of whom are industry professionals with experience in our areas of study.
As of December 31, 2018, we had approximately 1,884 employees, including 468 full-time faculty and 364 part-time instructors. At six of our campuses, the
teaching professionals are represented by unions. These employees are covered by collective bargaining agreements that expire between 2019 and 2022. We believe that we have good relationships with these unions and with our employees.
Competition
The for-profit, post-secondary education industry is highly competitive and highly fragmented with no one provider controlling significant market share.
Direct competition between career-oriented schools like ours and traditional four-year colleges or universities is limited. Thus, our main competitors are other for-profit, career-oriented schools, not-for-profit public, private schools, public
and private two-year junior and community colleges, most of which are eligible to receive funding under the federal programs of student financial aid authorized by Title IV Programs. Competition is generally based on location, the type of
programs offered, the quality of instruction, placement rates, reputation, recruiting and tuition rates. Public institutions are generally able to charge lower tuition than our school, due in part to government subsidies and other financial
sources not available to for-profit schools. In addition, some of our other competitors have a more extensive network of schools and campuses than we do, which enables them to recruit students more efficiently from a wider geographic area.
Nevertheless, we believe that we are able to compete effectively in our local markets because of the diversity of our program offerings, quality of instruction, the strength of our brands, our reputation and our graduates’ success in securing
employment after completing their program of study.
Our competition differs in each market depending on the curriculum that we offer. For example, a school offering automotive, healthcare and skilled trades
programs will have a different group of competitors than a school offering healthcare, business/IT and skilled trades programs. Also, because schools can add new programs within six to twelve months, competition can emerge relatively quickly.
Moreover, with the introduction of online education, the number of competitors in each market has increased because students can now attend classes from an online institution. On average, each of our schools has at least three direct competitors
and at least a dozen indirect competitors.
Environmental Matters
We use hazardous materials at our training facilities and campuses, and generate small quantities of waste such as used oil, antifreeze, paint and car
batteries. As a result, our facilities and operations are subject to a variety of environmental laws and regulations governing, among other things, the use, storage and disposal of solid and hazardous substances and waste, and the clean-up of
contamination at our facilities or off-site locations to which we send or have sent waste for disposal. We are also required to obtain permits for our air emissions and to meet operational and maintenance requirements. In the event we do not
maintain compliance with any of these laws and regulations, or are responsible for a spill or release of hazardous materials, we could incur significant costs for clean-up, damages, and fines or penalties. Climate change has not had and is not
expected to have a significant impact on our operations.
Regulatory Environment
Students attending our schools finance their education through a combination of personal
resources, family contributions, private loans and federal financial aid programs. Each of our schools participates in the Title IV Programs, which are administered by the DOE. For the year ended December 31, 2018, approximately 78% (calculated based on cash receipts) of our revenues were derived from the Title IV Programs. Students obtain access to federal student financial aid through a DOE
prescribed application and eligibility certification process.
In connection with the students' receipt of federal financial aid under the Title IV Programs, our schools are subject to extensive regulation by
governmental agencies and licensing and accrediting bodies. In particular, the Higher Education Act of 1965, as amended, and the regulations issued by the DOE subject us to significant regulatory scrutiny in the form of numerous standards that
each of our schools must satisfy in order to participate in the Title IV Programs. To participate in the Title IV Programs, a school must be authorized to offer its programs of instruction by the applicable state education agencies in the states
in which it is physically located, be accredited by an accrediting commission recognized by the DOE and be certified as an eligible institution by the DOE. The DOE defines an eligible institution to consist of both a main campus and its
additional locations, if any. Each of our schools is either a main campus or an additional location of a main campus. Each of our schools is subject to extensive regulatory requirements imposed by state education agencies, accrediting
commissions, and the DOE. Because the DOE periodically revises its regulations and changes its interpretations of existing laws and regulations, we cannot predict with certainty how Title IV Program requirements will be applied in all
circumstances. Our schools also participate in other federal and state financial aid programs that assist students in paying the cost of their education and that impose standards that we must satisfy.
State Authorization
Each of our schools must be authorized by the applicable education agencies in the states in which the school is physically located, and in some cases other
states, in order to operate and to grant degrees, diplomas or certificates to its students. State agency authorization is also required in each state in which a school is physically located in order for the school to become and remain eligible to
participate in Title IV Programs. If we are found not to be in compliance with the applicable state regulation and a state seeks to restrict one or more of our business activities within its boundaries, we may not be able to recruit or enroll
students in that state and may have to stop providing services in that state, which could have a significant impact on our business and results of operations. Currently, each of our schools is authorized by the applicable state education
agencies in the states in which the school is physically located and in which it recruits students.
Our schools are subject to extensive, ongoing regulation by each of these states. State laws
typically establish standards for instruction, curriculum, qualifications of faculty, location and nature of facilities and equipment, administrative procedures, marketing, recruiting, financial operations, student outcomes and other
operational matters. State laws and regulations may limit our ability to offer educational programs and to award degrees, diplomas or certificates. For example, the governor of New York has proposed increased oversight of for-profit schools
operating in New York, which would include our Queens campus, including, but not limited to, proposed regulations that, among other things, would limit the percentage of funding from taxpayers to 80 percent (which would be a stricter standard
than required by the DOE) and require a school to spend at least 50 percent of its budget on instruction and learning. The implementation of these regulations could have a significant impact on our operations in New York and on the Company.
In addition, legislation has been proposed in Maryland that would apply to certain for-profit schools operating in Maryland, which would include our Columbia campus, and that, among other things, would limit the percentage of revenue that an
institution could receive from federal or state funds, or from loans or grants provided or guaranteed by the institution, in at least two of the institution’s three most recent fiscal years and would require the institution to provide an
extensive list of disclosures to prospective students prior to enrollment, registration or payment. The implementation of this law or any related regulations could have a significant impact on our operations in Maryland and on the Company. We
cannot predict the timing or ultimate scope of any final laws and regulations that New York, Maryland, or other states might issue on these or other topics in the future. Some states prescribe standards of financial responsibility that are
different from, and in certain cases more stringent than, those prescribed by the DOE. Some states require schools to post a surety bond. We have posted surety bonds on behalf of our schools and education representatives with multiple states in
a total amount of approximately $12.7 million.
The DOE published regulations that took effect on July 1, 2011, that expanded the requirements for an institution to be considered legally authorized in the
state in which it is physically located for Title IV purposes. In some cases, the regulations required states to revise their current requirements and/or to license schools in order for institutions to be deemed legally authorized in those
states and, in turn, to participate in Title IV Programs. If the states do not amend their requirements where necessary and if schools do not receive approvals where necessary that comply with these new requirements, then the institution could
be deemed to lack the state authorization necessary to participate in Title IV Programs. The DOE stated when it published the final regulations that it will not publish a list of states that meet, or fail to meet, the requirements, and it is
uncertain how the DOE will interpret these requirements in each state.
If any of our schools fail to comply with state licensing requirements, they are subject to the loss of state licensure or authorization. If any one of our
schools lost its authorization from the education agency of the state in which the school is located, or failed to comply with the DOE’s state authorization requirements, that school would lose its eligibility to participate in Title IV Programs,
the Title IV eligibility of its related additional locations could be affected, the impacted schools would be unable to offer its programs, and we could be forced to close the schools. If one of our schools lost its state authorization from a
state other than the state in which the school is located, the school would not be able to recruit students or to operate in that state.
Due to state budget constraints in certain states in which we operate, it is possible that those states may continue to reduce the number of employees in,
or curtail the operations of, the state education agencies that oversee our schools. A delay or refusal by any state education agency in approving any changes in our operations that require state approval could prevent us from making such changes
or could delay our ability to make such changes. States periodically change their laws and regulations applicable to our schools and such changes could require us to change our practices and could have a significant impact on our business and
results of operations.
Accreditation
Accreditation is a non-governmental process through which a school submits to ongoing qualitative and quantitative review by an organization of peer
institutions. Accrediting commissions primarily examine the academic quality of the school's instructional programs, and a grant of accreditation is generally viewed as confirmation that the school's programs meet generally accepted academic
standards. Accrediting commissions also review the administrative and financial operations of the schools they accredit to ensure that each school has the resources necessary to perform its educational mission.
Accreditation by an accrediting commission recognized by the DOE is required for an institution to be certified to participate in Title IV
Programs. In order to be recognized by the DOE, accrediting commissions must adopt specific standards for their review of educational institutions. As of December 31, 2018, 22 of our campuses are accredited by the Accrediting Commission of Career
Schools and Colleges, or ACCSC. The following is a list of the dates on which each campus was accredited by its accrediting commission, the date by which its accreditation must be renewed and the type of accreditation.
Accrediting Commission of Career Schools and Colleges Reaccreditation Dates
|
School
|
Last Accreditation Letter
|
Next Accreditation
|
Type of Accreditation
|
|||
|
Philadelphia, PA2
|
November 26, 2018
|
May 1, 2023
|
National
|
|||
|
Union, NJ1
|
May 29, 2014
|
February 1, 20194
|
National
|
|||
|
Mahwah, NJ1
|
March 11, 2015
|
August 1, 2019
|
National
|
|||
|
Melrose Park, IL2
|
March 13, 2015
|
November 1, 2019
|
National
|
|||
|
Denver, CO1
|
June 14, 2016
|
February 1, 2021
|
National
|
|||
|
Columbia, MD
|
March 8, 2017
|
February 1, 2022
|
National
|
|||
|
Grand Prairie, TX1
|
June 20, 2017
|
August 1, 2021
|
National
|
|||
|
Allentown, PA2
|
March 8, 2017
|
February 1, 2022
|
National
|
|||
|
Nashville, TN1
|
September 6, 2017
|
May 1, 2022
|
National
|
|||
|
Indianapolis, IN
|
May 15, 2018
|
November 1, 2021
|
National
|
|||
|
New Britain, CT
|
June 5, 2018
|
January 1, 2023
|
National
|
|||
|
Shelton, CT2
|
March 5, 2014
|
September 1, 20184
|
National
|
|||
|
Queens, NY1
|
September 4, 2018
|
June 1, 2023
|
National
|
|||
|
East Windsor, CT2
|
October 17, 2017
|
February 1, 2023
|
National
|
|||
|
South Plainfield, NJ1
|
September 2, 2014
|
August 1, 2019
|
National
|
|||
|
Iselin, NJ
|
May 15, 2018
|
May 15, 2023
|
National
|
|||
|
Moorestown, NJ3
|
May 15, 2018
|
May 15, 2023
|
National
|
|||
|
Paramus, NJ3
|
May 15, 2018
|
May 15, 2023
|
National
|
|||
|
Lincoln, RI3
|
May 15, 2018
|
May 15, 2023
|
National
|
|||
|
Somerville, MA3
|
May 15, 2018
|
May 15, 2023
|
National
|
|||
|
Summerlin, NV3
|
May 15, 2018
|
May 15, 2023
|
National
|
|||
|
Marietta, GA3
|
May 15, 2018
|
May 15, 2022
|
National
|
| 1 |
Branch campus of main campus in Indianapolis, IN
|
| 2 |
Branch campus of main campus in New Britain, CT
|
| 3 |
Branch campus of main campus in Iselin, NJ
|
| 4 |
Campus undergoing re-accreditation. Campus has received written confirmation that it remains accredited pending consideration of its application for reaccreditation.
|
The Company received a letter dated January 31, 2019 from ACCSC, which indicated that the ACCSC commission voted to continue our schools on financial
reporting with a subsequent review scheduled for ACCSC’s August 2019 meeting. The commission continued the financial reporting status based on the net working capital deficit, accumulated deficit, and net loss reported in the nine-month
financial statements submitted to ACCSC. The commission recognized the Company’s continued efforts to improve its financial position through, among other things, closing underperforming schools and growing student enrollments, and determined
that, while improvements are being realized, additional monitoring of the Company’s financial position is warranted. The letter requires us to submit certain financial information to ACCSC by July 12, 2019 for consideration at ACCSC’s August
2019 meeting.
If one of our schools fails to comply with accrediting commission requirements, the institution and its main and/or branch campuses are subject to the loss
of accreditation or may be placed on probation or a special monitoring or reporting status which, if the noncompliance with accrediting commission requirements is not resolved, could result in loss of accreditation or restrictions on the addition
of new locations, new programs, or other substantive changes. If any one of our schools loses its accreditation, students attending that school would no longer be eligible to receive Title IV Program funding, and we could be forced to close that
school.
Programmatic accreditation is the process through which specific programs are reviewed and approved by industry and program-specific accrediting entities.
Although programmatic accreditation is not generally necessary for Title IV eligibility, such accreditation may be required to allow students to sit for certain licensure exams or to work in a particular profession or career or to meet other
requirements. Failure to obtain or maintain such programmatic accreditation may lead to a decline in enrollments in such programs. Under the current gainful employment regulations issued by the DOE, institutions may be required to certify that
they have programmatic accreditation under certain circumstances. See “—Regulatory Environment – Gainful Employment.”
Nature of Federal and State Support for Post-Secondary Education
The federal government provides a substantial part of the support for post-secondary education through Title IV Programs, in the form of grants and loans to
students who can use those funds at any institution that has been certified as eligible by the DOE. Most aid under Title IV Programs is awarded on the basis of financial need, generally defined as the difference between the cost of attending the
institution and the expected amount a student and his or her family can reasonably contribute to that cost. A recipient of Title IV Program funds must maintain a satisfactory grade point average and progress in a timely manner toward completion
of his or her program of study and must meet other applicable eligibility requirements for the receipt of Title IV funds. In addition, each school must ensure that Title IV Program funds are properly accounted for and disbursed in the correct
amounts to eligible students.
Other Financial Assistance Programs
Some of our students receive financial aid from federal sources other than Title IV Programs, such as programs administered by the U.S. Department of
Veterans Affairs and under the Workforce Investment Act. In addition, some states also provide financial aid to our students in the form of grants, loans or scholarships. The eligibility requirements for state financial aid and these other
federal aid programs vary among the funding agencies and by program. States that provide financial aid to our students are facing significant budgetary constraints. Some of these states have reduced the level of state financial aid available to
our students. Due to state budgetary shortfalls and constraints in certain states in which we operate, we believe that the overall level of state financial aid for our students is likely to continue to decrease in the near term, but we cannot
predict how significant any such reductions will be or how long they will last. Federal budgetary shortfalls and constraints, or decisions by federal lawmakers to limit or prohibit access by our institutions or their students to federal financial
aid, could result in a decrease in the level of federal financial aid for our students.
In addition to Title IV and other government-administered programs, all of our schools participate in alternative loan programs for their students.
Alternative loans fill the gap between what the student receives from all financial aid sources and what the student may need to cover the full cost of his or her education. Students or their parents can apply to a number of different lenders for
this funding at current market interest rates.
We also extend credit for tuition and fees to many of our students that attend our campuses.
Regulation of Federal Student Financial Aid Programs
To participate in Title IV Programs, an institution must be authorized to offer its programs
by the relevant state education agencies in the state in which it is physically located, be accredited by an accrediting commission recognized by the DOE and be certified as eligible by the DOE. The DOE will certify an institution to
participate in Title IV Programs only after reviewing and approving an institution’s application to participate in the Title IV Programs. The DOE defines an institution to consist of both a main campus and its additional locations, if any.
Under this definition, for DOE purposes, we had the following four institutions as of December 31, 2018, collectively consisting of four main campuses and 18 additional locations:
|
Main Institution/Campus(es)
|
Additional Location(s)
|
|
|
Iselin, NJ
|
Moorestown, NJ
|
|
|
Paramus, NJ
|
||
|
Somerville, MA
|
||
|
Lincoln, RI
|
||
|
Marietta, GA
|
||
|
Las Vegas, NV (Summerlin)
|
||
|
New Britain, CT
|
Shelton, CT
|
|
|
Philadelphia, PA
|
||
|
East Windsor, CT
|
||
|
Melrose Park, IL
|
||
|
Allentown, PA
|
||
|
Indianapolis, IN
|
Grand Prairie, TX
|
|
|
Nashville, TN
|
||
|
Denver, CO
|
||
|
Union, NJ
|
||
|
Mahwah, NJ
|
||
|
Queens, NY
|
||
|
South Plainfield, NJ
|
||
|
Columbia, MD
|
Each institution must periodically apply to the DOE for continued certification to participate in Title IV Programs. The institution also must apply for
recertification when it undergoes a change in ownership resulting in a change of control. The institution also may come under DOE review when it undergoes a substantive change that requires the submission of an application, such as opening an
additional location or raising the highest academic credential it offers. All institutions are recertified on various dates for various amounts of time. The following table sets forth the expiration dates for each of our institutions' current
Title IV Program participation agreements:
|
Institution
|
Expiration Date of Current
Program Participation
Agreement
|
|
|
Columbia, MD
|
March 31, 2020
|
|
|
Iselin, NJ
|
September 30, 2020
|
|
|
Indianapolis, IN
|
December 31, 20181,2
|
|
|
New Britain, CT
|
March 31, 2020
|
| 1 |
Provisionally certified.
|
| 2 |
Institution is on a month-to-month approval during the re-certification process.
|
The DOE typically provides provisional certification to an institution following a change in ownership resulting in a change of control and also may
provisionally certify an institution for other reasons, including, but not limited to, noncompliance with certain standards of administrative capability and financial responsibility. One institution, namely Indianapolis, is provisionally
certified by the DOE. This institution generates 51% of the Company’s revenue. Indianapolis is provisionally certified based on the existence of pending program reviews with DOE. The Title IV Program reviews at our Union and Indianapolis
schools, which was the basis for provisional certification, have been resolved and are now closed. An institution that is provisionally certified receives fewer due process rights than those received by other institutions in the event the DOE
takes certain adverse actions against the institution, is required to obtain prior DOE approvals of new campuses and educational programs, and may be subject to heightened scrutiny by the DOE. However, provisional certification does not
otherwise limit an institution’s access to Title IV Program funds.
The DOE is responsible for overseeing compliance with Title IV Program requirements. As a result, each of our schools is subject to detailed oversight and
review, and must comply with a complex framework of laws and regulations. Because the DOE periodically revises its regulations and changes its interpretation of existing laws and regulations, we cannot predict with certainty how the Title IV
Program requirements will be applied in all circumstances.
Significant factors relating to Title IV Programs that could adversely affect us include the following:
Congressional Action. Political and budgetary
concerns significantly affect Title IV Programs. Congress periodically revises the Higher Education Act of 1965, as amended (“HEA”) and other laws governing Title IV Programs. Congress is currently considering reauthorization of Title IV
Programs, but it is not known if or when Congress will pass final legislation that amends the Higher Education Act or other laws affecting U.S. Federal student aid.
In addition, Congress reviews and determines federal appropriations for Title IV Programs on
an annual basis. Congress can also make changes in the laws affecting Title IV Programs in the annual appropriations bills and in other laws it enacts between the HEA reauthorizations. Because a significant percentage of our revenues are
derived from Title IV Programs, any action by Congress or the DOE that significantly reduces Title IV Program funding, that limits or restricts the ability of our schools, programs, or students to receive funding through the Title IV Programs, or that imposes new restrictions or constraints upon our business or operations could reduce our
student enrollment and our revenues, and could increase our administrative costs and require us to modify our practices in order for our schools to comply fully with Title IV Program requirements.
In addition, current requirements for student or school participation in Title IV Programs may change or one or more of the present Title IV Programs could
be replaced by other programs with materially different student or school eligibility requirements. If we cannot comply with the provisions of the HEA, as they may be amended, or if the cost of such compliance is excessive, or if funding is
materially reduced, our revenues or profit margin could be materially adversely affected.
Gainful Employment. In October 2014, the DOE issued final gainful employment regulations requiring each educational program offered by our institutions to achieve threshold rates in at least one of two debt measure
categories related to an annual debt to annual earnings ratio and an annual debt to discretionary income ratio. The various formulas are calculated under complex methodologies and definitions outlined in the final regulations and, in some cases,
are based on data that may not be readily accessible to institutions, such as income information compiled by the Social Security Administration. The regulations outline various scenarios under which programs could lose Title IV eligibility for
failure to achieve threshold rates in one or more measures over certain periods of time ranging from two to four years. The regulations also require an institution to provide warnings to students in programs which may lose Title IV eligibility at
the end of an award year. The final regulations also contain other provisions that, among other things, include disclosure, reporting, new program approval, and certification requirements. The certification requirements require each institution
to certify to the DOE, among other things, that each gainful employment program is programmatically accredited, if such accreditation is required by a Federal governmental entity or by governmental entity in the state in which the institution is
physically located.
The final regulations had a general effective date of July 1, 2015. In January 2017, the DOE issued the first set of gainful employment rates for each of
our programs for the debt measure year ended June 30, 2015. Sixty of our programs achieved passing rates, 13 of our programs had rates that are in a category called the “zone,” and five of our programs had failing rates. Our programs with rates
in the zone are not subject to loss of Title IV eligibility unless they accumulate a combination of zone and failing rates for four consecutive years (or failing rates for two out of any three consecutive years). Each of our programs with failing
rates will lose its Title IV eligibility if it receives a failing gainful employment rate for either of the 2016 or 2017 debt measure years. The DOE has yet to begin the process of issuing gainful employment rates for the 2016 debt measure year,
although it could begin that process at any time. While we did submit an appeal, we have not received any final decision from the DOE. However, that appeal is no longer relevant as all students in that failing program have since been taught out
as December 31, 2018.
The table below provides a summary of the percentage of total student enrollment by gainful employment program classification for each of our reporting
segments based on student enrollment as of the debt measure year ended December 31, 2018.
|
Reporting Segment
|
Passing
Programs
|
Zone
Programs
|
Failing
Programs
|
|||||||||
|
Transportation
|
92.9
|
%
|
7.1
|
%
|
0.0
|
%
|
||||||
|
HOPS
|
96.1
|
%
|
3.9
|
%
|
0.0
|
%
|
||||||
The table below provides a summary of estimated yearly revenue related to the programs either in the zone or failing programs for the fiscal year ended
December 31, 2018. The Company has implemented program modifications and tuition reductions or is teaching out the program or has appealed the program’s gainful employment rate.
|
Reporting Segment
|
Zone
Programs
|
Failing
Programs
|
||||||
|
Transportation
|
$
|
7,800,000
|
$
|
-
|
||||
|
HOPS
|
$
|
2,400,000
|
$
|
1,000,000
|
||||
The table below provides a summary of each of the zone or failing programs and the actions implemented by the Company with respect to those particular
gainful employment (“GE”) programs.
|
|
GE Program Code
|
|
|
|
||
|
Reporting Segment
|
OPEID
|
CIP Code
|
Credential Level
|
GE Program Name
|
GE Classification
|
Actions implemented
|
|
Transportation
|
007936
|
120503
|
Certificate
|
Culinary Arts/Chef Training
|
Zone
|
Teachout, Program Modification, Tuition Reduction
|
|
Transportation
|
007938
|
470603
|
Certificate
|
Autobody/Collision And Repair
Technology/Technician |
Zone
|
Program Modification,
Tuition Reducation |
|
Transportation
|
007936
|
470604
|
Certificate
|
Automobile/Automotive Mechanices
Technology/Technician |
Zone
|
Program Modification,
Tuition Reducation |
|
HOPS
|
012461
|
120401
|
Certificate
|
Cosmetology/Cosmetologist General
|
Zone
|
Program Modification
|
|
HOPS
|
007303
|
120503
|
Certificate
|
Culinary Arts/Chef Training
|
Fail
|
Appeal, Teachout, Program Modification,
Tuition Reducation |
|
HOPS
|
007303
|
120599
|
Certificate
|
Culinary Arts and Related Services, Other
|
Zone
|
Teachout
|
|
HOPS
|
0012461
|
470101
|
Certificate
|
Electrical/ Electronics Equipment Installation
And Repair, General |
Fail
|
Teachout, Program Modification
|
|
HOPS
|
0012461
|
470101
|
Associate Degree
|
Electrical/ Electronics Equipment Installation
And Repair, General |
Zone
|
Program Modification
|
|
HOPS
|
0012461
|
510713
|
Associate Degree
|
Medical Insurance Coding Specialist/Coder
|
Zone
|
Teachout
|
|
Transitional
|
0012461
|
120503
|
Certificate
|
Culinary Arts/Chef Training
|
Zone
|
Teachout
|
|
Transitional
|
0012461
|
120503
|
Certificate
|
Culinary Arts/Chef Training
|
Zone
|
Teachout
|
|
Transitional
|
0012461
|
470201
|
Certificate
|
Heating, Air Conditioning, Ventilation
And Refrigeration Maintenance Technology/Technician |
Fail
|
Teachout
|
|
Transitional
|
0012461
|
470604
|
Certificate
|
Automobile/Automotive Mechanices
Technology/Technician |
Fail
|
Teachout
|
|
Transitional
|
0012461
|
470604
|
Associate Degree
|
Automobile/Automotive Mechanics
Technology/Technician |
Zone
|
Teachout
|
|
Transitional
|
0012461
|
510716
|
Associate Degree
|
Medical Administrative/Executive Assistant
And Medical Secretory |
Zone
|
Teachout
|
|
Transitional
|
0012461
|
510801
|
Associate Degree
|
Medical/Clinical Assistant
|
Zone
|
Teachout
|
1Gainful Employment programs are identified by the combination of: (1) the institution’s Office of Postsecondary Education Identification
number (“OPEID #”); (2) Program Classification of Instruction (“CIP”); and (3) Credential Level.
In August 2018, the DOE published proposed regulations that would eliminate the existing gainful employment regulations. The DOE indicated that its plans
include, but are not limited to, publishing outcomes data at the program level on a DOE website such as the College Scorecard or some other website. The DOE permitted the submission of public comments to the proposed regulations until September
13, 2018. Any regulations published in final form by November 1, 2018 typically would have taken effect on July 1, 2019, but we cannot provide any assurances as to the timing or content of any such regulations. However, the DOE announced that
it would not publish the regulations in final form by November 1, 2018 and has not yet issued the final regulations. If the regulations are published prior to November 1, 2019, they typically would take effect on July 1, 2020 unless the DOE is
willing and able to provide for an earlier implementation date. We cannot provide any assurance as to the timing, content, and ultimate effective date of any such final regulations.
In June 2018, the DOE announced the further extension of the compliance date for certain other gainful employment disclosure requirements until July 1,
2019. The DOE stated that institutions are still required to comply with other gainful employment disclosure requirements in the interim.
On August 18, 2017, the DOE announced new deadlines for submitting notices of intent to file alternate earnings appeals of gainful employment rates and for
submitting alternate earnings appeals of those rates. The deadline to file a notice of intent to file an appeal was October 6, 2017 and the deadline to file the alternate earnings appeal was February 1, 2018. We cannot predict when the DOE will
calculate and issue new draft or final gainful employment rates in the future. We also cannot predict whether the gainful employment rulemaking process or the extension of certain gainful employment deadlines may result in the DOE delaying the
issuance of new draft or final gainful employment rates in the future.
Borrower Defense to Repayment Regulations. In January 2016, the DOE began negotiated rulemaking to develop proposed regulations regarding, among other things, a borrower’s ability to allege acts or omissions by an institution as a
defense to the repayment of certain Title IV loans and the consequences to the borrower, the DOE, and the institution. On November 1, 2016, the DOE published in the Federal Register the final version of these regulations with a general
effective date of July 1, 2017 and which, among other things, include rules for:
| · |
establishing new processes, and updating existing processes, for enabling borrowers to obtain from the DOE a discharge of some or all of their federal student loans
based on circumstances such as certain acts or omissions of the institution and for the DOE to impose and collect liabilities against the institution following the loan discharges;
|
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establishing expanded standards of financial responsibility (see “Regulatory Environment – Financial Responsibility Standards”);
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requiring institutions to make disclosures to current and prospective students regarding the existence of certain of the circumstances identified in the expanded
standards of financial responsibility;
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calculating a loan repayment rate for each proprietary institution under standards established by the regulations and requiring institutions to provide warnings to
current and prospective students if the institution has a loan repayment rate below specified thresholds;
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prohibiting certain contractual provisions imposed by or on behalf of schools on students regarding arbitration, dispute resolution, and participation in class actions;
and
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expanding the existing definition of misrepresentations that could result in grounds for discharge of student loans and in liabilities and sanctions against the
institution, including, without limitation, potential loss of Title IV eligibility.
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On January 19, 2017, the DOE issued new regulations that update the Department’s hearing procedures for actions to establish liability against an
institution and to establish procedural rules governing recovery proceedings under the DOE’s borrower defense to repayment regulations.
The DOE delayed the effective date of a majority of the borrower defense to repayment regulations until July 1, 2019 to ensure that there would be adequate
time to conduct negotiated rulemaking and, as necessary, develop revised regulations. However, a federal court ruled that the delay in the effective date of the regulations was unlawful and, on October 16, 2018, denied a request to extend a
stay preventing the regulations from taking effect. The DOE has not yet issued subsequent guidance regarding how the DOE will implement the regulations. There is ongoing litigation challenging the regulations, but we cannot provide any
assurance as to whether the litigation could result in the future suspension or invalidation of some or all of those regulations.
The DOE published proposed regulations on July 31, 2018 that would modify the defense to
repayment regulations, including regulations regarding, among other things, (i) acts or omissions of an institution of higher education a borrower
may assert as a defense to repayment of certain Title IV loans; (ii) permitting the use of arbitration clauses and class action waivers in enrollment agreements and (iii) triggering events that would result in recalculating a school’s financial
responsibility score and require the school to post a letter of credit or other surety. We are in the process of evaluating the proposed regulations. Any regulations
published in final form by November 1, 2018 typically would have taken effect on July 1, 2019. However, the DOE announced that it would not publish the regulations in final form by November 1, 2018 and has not yet issued the final
regulations. If the regulations are published prior to November 1, 2019, they typically would take effect on July 1, 2020 unless the DOE is willing and able to provide for an earlier implementation date. We cannot provide any assurance as to
the timing, content, and ultimate effective date of any such final regulations. We cannot predict how the DOE will interpret and enforce current borrower defense to repayment rules, or any final rules that may arise out of the DOE’s ongoing
rulemaking process, or how the current or future rules may impact our schools’ participation in the Title IV Programs; however, the current and future rules could have a material adverse effect on our schools’ business and results of
operations, and the broad sweep of the rules may, in the future, require our schools to submit a letter of credit based on expanded standards of financial responsibility. See “Regulatory Environment – Financial Responsibility Standards.”
The "90/10 Rule." Under the HEA, a
proprietary institution that derives more than 90% of its total revenue from Title IV Programs (its “90/10 Rule percentage”) for two consecutive fiscal years becomes immediately ineligible to participate in Title IV Programs and may not reapply
for eligibility until the end of at least two fiscal years. An institution with revenues exceeding 90% for a single fiscal year will be placed on provisional certification and may be subject to other enforcement measures. If an institution
violated the 90/10 Rule and became ineligible to participate in Title IV Programs but continued to disburse Title IV Program funds, the DOE would require the institution to repay all Title IV Program funds received by the institution after the
effective date of the loss of eligibility.
We have calculated that, for our 2018 fiscal year, our institutions' 90/10 Rule percentages ranged from 74% to 84%. For 2017 and 2016, none of our existing
institutions derived more than 90% of their revenues from Title IV Programs. Our calculations are subject to review by the DOE.
If Congress or the DOE were to amend the 90/10 Rule to treat other forms of federal financial aid as Title IV revenue for 90/10 Rule purposes, lower the 90%
threshold, or otherwise change the calculation methodology (each of which has been proposed by some Congressional members in proposed legislation), or make other changes to the 90/10 Rule, those changes could make it more difficult for our
institutions to comply with the 90/10 Rule. A loss of eligibility to participate in Title IV Programs for any of our institutions would have a significant impact on the rate at which our students enroll in our programs and on our business and
results of operations.
Student Loan Defaults. The HEA limits
participation in Title IV Programs by institutions whose former students defaulted on the repayment of federally guaranteed or funded student loans above a prescribed rate (the “cohort default rate”). The DOE calculates these rates based on the
number of students who have defaulted, not the dollar amount of such defaults. The cohort default rate is calculated on a federal fiscal year basis and measures the percentage of students who enter repayment of a loan during the federal fiscal
year and default on the loan on or before the end of the federal fiscal year or the subsequent two federal fiscal years.
Under the HEA, an institution whose Federal Family Education Loan, or FFEL, and Federal
Direct Loan, or FDL, cohort default rate is 30% or greater for three consecutive federal fiscal years loses eligibility to participate in the FFEL, FDL, and Pell programs for the remainder of the federal fiscal year in which the DOE determines
that such institution has lost its eligibility and for the two subsequent federal fiscal years. An institution whose FFEL and FDL cohort default rate for any single federal fiscal year exceeds 40% loses its eligibility to participate in the
FFEL and FDL programs for the remainder of the federal fiscal year in which the DOE determines that such institution has lost its eligibility and for the two subsequent federal fiscal years. If an institution’s three-year cohort
default rate equals or exceeds 30% in two of the three most recent federal fiscal years for which the DOE has issued cohort default rates, the institution may be placed on provisional certification status and could be required to submit a letter
of credit to the DOE.
In September 2018, the DOE released the final cohort default rates for the 2015 federal fiscal year. These are the most recent final rates published by the
DOE. The rates for our existing institutions for the 2015 federal fiscal year range from 8.7% to 13.2%. None of our institutions had a cohort default rate equal to or greater than 30% for the 2015 federal fiscal year.
In February 2019, the DOE released draft three-year cohort default rates for the 2016 federal fiscal year. The draft cohort default rates are subject to
change pending receipt of the final cohort default rates, which the DOE is expected to publish in September 2019. The draft rates for our institutions for the 2016 federal fiscal year range from 8.3% to 16.6%. None of our institutions had draft
cohort default rates of 30% or more.
Financial Responsibility Standards.
All institutions participating in Title IV Programs must satisfy specific standards of financial responsibility. The DOE evaluates institutions for
compliance with these standards each year, based on the institution's annual audited financial statements, as well as following a change in ownership resulting in a change of control of the institution.
The most significant financial responsibility measurement is the institution's composite score, which is calculated by the DOE based on three ratios:
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The equity ratio, which measures the institution's capital resources, ability to borrow and financial viability;
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The primary reserve ratio, which measures the institution's ability to support current operations from
expendable resources; and
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The net income ratio, which measures the institution's ability to operate at a profit.
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The DOE assigns a strength factor to the results of each of these ratios on a scale from negative 1.0 to positive 3.0, with negative 1.0 reflecting
financial weakness and positive 3.0 reflecting financial strength. The DOE then assigns a weighting percentage to each ratio and adds the weighted scores for the three ratios together to produce a composite score for the institution. The
composite score must be at least 1.5 for the institution to be deemed financially responsible without the need for further oversight.
If an institution's composite score is below 1.5, but is at least 1.0, it is in a category
denominated by the DOE as "the zone." Under the DOE regulations, institutions that are in the zone typically may be permitted by the DOE to continue to participate in the Title IV Programs by choosing one of two alternatives: 1) the
“Zone Alternative” under which an institution is required to make disbursements to students under the Heightened Cash Monitoring 1 (“HCM1”) payment method and to notify the DOE within 10 days after the occurrence of certain oversight and
financial events or 2) submit a letter of credit to the DOE equal to 50 percent of the Title IV Program funds received by the institution during its most recent fiscal year. The DOE permits an institution to participate under the “Zone
Alternative” for a period of up to three consecutive fiscal years. Under the HCM1 payment method, the institution is required to make Title IV Program disbursements to eligible students and parents before it requests or receives funds for the
amount of those disbursements from the DOE. As long as the student accounts are credited before the funding requests are initiated, an institution is permitted to draw down funds through the DOE’s electronic system for grants management and
payments for the amount of disbursements made to eligible students. Unlike the Heightened Cash Monitoring 2 (“HCM2”) and reimbursement payment methods, the HCM1 payment method typically does not require schools to submit documentation to the DOE
and wait for DOE approval before drawing down Title IV Program funds. Effective July 1, 2016, a school under HCM1, HCM2 or reimbursement payment methods must also pay any credit balances due to a student before drawing down funds for the amount
of those disbursements from the DOE, even if the student or parent provides written authorization for the school to hold the credit balance.
If an institution's composite score is below 1.0, the institution is considered by the DOE to lack financial responsibility. If the DOE determines that an
institution does not satisfy the DOE's financial responsibility standards, depending on its composite score and other factors, that institution may establish its financial responsibility on an alternative basis by, among other things:
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Posting a letter of credit in an amount equal to at least 50% of the total Title IV Program funds received
by the institution during the institution's most recently completed fiscal year; or
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Posting a letter of credit in an amount equal to at least 10% of the Title IV Program funds received by the
institution during its most recently completed fiscal year accepting provisional certification; complying with additional DOE monitoring requirements and agreeing to receive Title IV Program funds under an arrangement other than the
DOE's standard advance funding arrangement
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The DOE has evaluated the financial responsibility of our institutions on a consolidated basis. We have submitted to the DOE our audited financial
statements for the 2016 and 2015 fiscal year reflecting a composite score of 1.5 and 1.9, respectively, based upon our calculations. The DOE reviewed our 2016 composite score and concluded that we were no longer required to operate under the
Zone Alternative requirements that we had operated under following the DOE’s review of our 2014 composite score.
For the 2017 fiscal year, we calculated our composite score to be 1.1. This score is
subject to determination by the DOE based on its review of our consolidated audited financial statements for the 2017 fiscal year, but we have not received a determination yet from the DOE. We believe it is likely that the DOE will determine
that our institutions are “in the zone” and that we will be required to operate under the Zone Alternative requirements as well as any other requirements that the DOE might impose in its discretion. For the 2018 fiscal year, we have calculated
our composite score to be 1.1. This score is subject to determination by the DOE once it receives and reviews our consolidated audited financial statements for the 2018 fiscal year, but we believe it is likely that the DOE will determine that
our institutions are “in the zone” and that we will be required to operate under the Zone Alternative requirements as well as any other requirements that the DOE might impose in its discretion.
On November 1, 2016, the DOE published new Borrower Defense to Repayment regulations that included expanded standards of financial responsibility that could
result in a requirement that we submit to the DOE a substantial letter of credit or other form of financial protection in an amount determined by the DOE, and be subject to other conditions and requirements, based on any one of an extensive list
of triggering circumstances. The DOE delayed the effective date of a majority of the borrower defense to repayment regulations until July 1, 2019 to ensure that there would be adequate time to conduct negotiated rulemaking and, as necessary,
develop revised regulations. However, a federal court ruled that the delay in the effective date of the regulations was unlawful and, on October 16, 2018, denied a request to extend a stay preventing the regulations from taking effect. The DOE
has not yet issued subsequent guidance regarding how the DOE will implement the regulations. There is ongoing litigation challenging the regulations, but we cannot provide any assurance as to whether the litigation could result in the future
suspension or invalidation of some or all of those regulations.
The expanded financial responsibility regulations could result in the DOE recalculating and reducing our composite score to account for DOE estimates of
potential losses under one or more of the extensive list of triggering circumstances and also could result in the imposition of conditions and requirements including a requirement to provide financial protection in amounts that are difficult to
predict, calculated by the DOE under potentially subjective standards and, in some cases, could be based solely on the existence of proceedings or circumstances that ultimately may lack merit or otherwise not result in liabilities or losses.
For example, one of the triggering circumstances in the regulations is if an institution’s accrediting agency requires the institution to submit a teach-out
plan that covers the closing of the institution or one of its locations. We notified the DOE that we intended to close our Southington campus and that our accrediting agency required a teach-out plan. The DOE could attempt to recalculate our
composite score, could seek to treat all Title IV funds received by the school in its most recently completed fiscal year at that campus as a loss in the recalculation, and could seek to impose a letter of credit based on the reduced composite
score. However, it is uncertain whether the DOE would apply the regulation to the accrediting agency’s request for a teach-out plan which occurred after the July 1, 2017 effective date of the regulations, but prior to the expiration of the stay
of the regulation on October 16, 2018; whether the DOE’s recalculation of the composite score would result in a letter of credit requirement; or whether the DOE would require a letter of credit given that the campus is currently closed.
The regulations indicate that the letter of credit or other form of financial protection
required for an institution under the regulations must equal 10 percent of the total amount of Title IV Program funds received by the institution during its most recently completed fiscal year plus any additional amount that the DOE determines
is necessary to fully cover any estimated losses unless the institution demonstrates that the additional amount is unnecessary to protect, or is contrary to, the Federal interest. The regulations state that the DOE maintains the full
amount of financial protection until the DOE determines that the institution has a composite score of 1.0 or greater based on a review of the institution’s audited financial statements for the fiscal year in which all losses from the
aforementioned events have been fully recognized or if the recalculated composite score is 1.0 or greater and the aforementioned events have ceased to exist. Consequently, it is difficult to predict the amount or duration of any letter of credit
requirement that the DOE might impose under the regulation. The requirement to submit a letter of credit or to accept other conditions or restrictions could have a material adverse
effect on our schools’ business and results of operations.
Return of Title IV Program Funds.
An institution participating in Title IV Programs must calculate the amount of unearned Title IV Program funds that have been disbursed to students who withdraw from their educational programs before completing them, and must return those
unearned funds to the DOE or the applicable lending institution in a timely manner, which is generally within 45 days from the date the institution determines that the student has withdrawn.
If an institution is cited in an audit or program review for returning Title IV Program funds late for 5% or more of the students in the audit or
program review sample or if the regulatory auditor identifies a material weakness in the institution’s report on internal controls relating to the return of unearned Title IV Program funds, the institution may be required to post a letter of
credit in favor of the DOE in an amount equal to 25% of the total amount of Title IV Program funds that should have been returned for students who withdrew in the institution's prior fiscal year.
On January 11, 2018, the DOE sent letters to our Columbia, Maryland and Iselin, New Jersey institutions requiring each institution to submit a
letter of credit to the DOE based on findings of late returns of Title IV Program funds in the annual Title IV Program compliance audits submitted to the DOE for the fiscal year ended December 31, 2016. Our Iselin institution provided evidence
demonstrating that only 3% of the Title IV Program funds returned were late. However, the DOE concluded that a letter of credit would nevertheless be required for each institution because the regulatory auditor included a finding that there was
a material weakness in our report on internal controls relating to return of unearned Title IV Program funds. We disagree with the regulatory auditor’s conclusion that a material weakness could exist if the error rate in the expanded audit
sample is only 3% or approximately $20,000 and we believe that the regulatory auditor’s conclusion is erroneous. We requested that the DOE reconsider the letter of credit requirement; however, by letter dated February 7, 2018, the DOE maintained
that the refund letters of credit were necessary but agreed that the amount of each letter of credit could be based on the returns that were required to be made by each institution in the 2017 fiscal year rather than in the 2016 fiscal year.
Accordingly, we submitted letters of credit in the amounts of $0.5 million and $0.1 million to the DOE by the February 23, 2018 deadline and expect that these letters of credit will remain in place for a minimum of two years.
Negotiated Rulemaking. On October 15, 2018, the DOE published a notice in the Federal Register announcing its intent to establish a negotiated rulemaking committee and three subcommittees to develop proposed
regulations related to several matters, including, but not limited to, requirements for accrediting agencies in their oversight of member institutions and programs; criteria used by the DOE to recognize accrediting agencies; simplification of
the DOE’s recognition and review of accrediting agencies; clarification of the core oversight responsibilities amongst accrediting agencies, states and the DOE to hold institutions accountable; clarification of the permissible arrangements
between an institution of higher education and another organization to provide a portion of an educational program; roles and responsibilities of institutions and accrediting agencies in the teach-out process; regulatory changes required to
ensure equitable treatment of brick-and-mortar and distance education programs; regulatory changes required to enable expansion of direct assessment programs, distance education, and competency-based education; regulatory changes required to
clarify disclosure and other requirements of state authorization; protections to ensure that accreditors recognize and respect institutional mission and evaluate an institution’s policies and educational programs based on that mission;
simplification of state authorization requirements related to distance education; defining “regular and substantive interaction” as it relates to distance education; defining the term “credit hour”; defining the requirements related to the
length of educational programs and entry level requirements for the occupation; addressing regulatory barriers in the DOE’s institutional eligibility and general provision regulations; addressing direct assessment programs and competency-based
education; and other matters. On January 7, 2019, the DOE released a set of draft proposed regulations for consideration and negotiation by the negotiated rulemaking committee and subcommittees. The draft proposed regulations also
cover additional topics including, but not limited to, amendments to current regulations regarding the clock to credit hour conversion formula; the requirements for measuring the lengths of certain educational programs; the requirements for
returning unearned Title IV funds received for students who withdraw before completing their educational programs; and the requirements for measuring a student’s satisfactory academic progress. The proposed changes to the regulations remain
subject to further change during the negotiated rulemaking process. The committee and subcommittees are in the process of meeting during the first three months of 2019. We cannot provide any assurances as to the timing, content or impact of any
final regulations arising from the negotiated rulemaking process.
Substantial Misrepresentation. The DOE’s
regulations prohibit an institution that participates in the Title IV Programs from engaging in substantial misrepresentation of the nature of its educational programs, financial charges, graduate employability or its relationship with the DOE. A
“misrepresentation” includes any false, erroneous, or misleading statement (whether made in writing, visually, orally, or through other means) that is made by an eligible institution, by one of its representatives, or by a third party that
provides to the institution educational programs, marketing, advertising, recruiting, or admissions services and that is made to a student, prospective student, any member of the public, an accrediting or state agency, or to DOE. The DOE defines
a “substantial misrepresentation” to include any misrepresentation on which the person to whom it was made could reasonably be expected to rely, or has reasonably relied, to that person’s detriment. The definition of “substantial
misrepresentation” is broad and, therefore, it is possible that a statement made by the institution or one of its service providers or representatives could be construed by the DOE to constitute a substantial misrepresentation. If the DOE
determines that one of our institutions has engaged in substantial misrepresentation, the DOE may impose sanctions or other conditions upon the institution including, but not limited to, initiating an action to fine the institution or limit,
suspend, or terminate its eligibility to participate in the Title IV Programs and may seek to discharge students’ loans and impose liabilities upon the institution.
School Acquisitions. When a company acquires
a school that is eligible to participate in Title IV Programs, that school undergoes a change of ownership resulting in a change of control as defined by the DOE. Upon such a change of control, a school's eligibility to participate in Title IV
Programs is generally suspended until it has applied for recertification by the DOE as an eligible school under its new ownership, which requires that the school also re-establish its state authorization and accreditation. The DOE may temporarily
and provisionally certify an institution seeking approval of a change of control under certain circumstances while the DOE reviews the institution's application. The time required for the DOE to act on such an application may vary substantially.
The DOE recertification of an institution following a change of control will be on a provisional basis. Thus, any plans to expand our business through acquisition of additional schools and have them certified by the DOE to participate in Title IV
Programs must take into account the approval requirements of the DOE and the relevant state education agencies and accrediting commissions.
Change of Control. In addition to school
acquisitions, other types of transactions can also cause a change of control. The DOE, most state education agencies and our accrediting commissions have standards pertaining to the change of control of schools, but these standards are not
uniform. DOE regulations describe some transactions that constitute a change of control, including the transfer of a controlling interest in the voting stock of an institution or the institution's parent corporation. For a publicly traded
corporation, DOE regulations provide that a change of control occurs in one of two ways: (a) if a person acquires ownership and control of the corporation so that the corporation is required to file a Current Report on Form 8-K with the
Securities and Exchange Commission disclosing the change of control or (b) if the corporation has a shareholder that owns at least 25% of the total outstanding voting stock of the corporation and is the largest shareholder of the corporation, and
that shareholder ceases to own at least 25% of such stock or ceases to be the largest shareholder. These standards are subject to interpretation by the DOE. A significant purchase
or disposition of our common stock could be determined by the DOE to be a change of control under this standard.
Most of the states and our accrediting commissions include the sale of a controlling interest
of common stock in the definition of a change of control although some agencies could determine that the sale or disposition of a smaller interest would result in a change of control. A change of control under the definition of one of these
agencies would require the affected school to reaffirm its state authorization or accreditation. Some agencies would require approval prior to a sale or disposition that would result in a change of control in order to maintain authorization or
accreditation. The requirements to obtain such reaffirmation from the states and our accrediting commissions vary widely.
A change of control could occur as a result of future transactions in which the Company or our schools are involved. Some corporate reorganizations and some
changes in the board of directors of the Company are examples of such transactions. Moreover, the potential adverse effects of a change of control could influence future decisions by us and our stockholders regarding the sale, purchase, transfer,
issuance or redemption of our stock. In addition, the adverse regulatory effect of a change of control also could discourage bids for shares of our common stock and could have an adverse effect on the market price of our shares.
Opening Additional Schools and Adding Educational
Programs. For-profit educational institutions must be authorized by their state education agencies and be fully operational for two years before applying to the DOE to participate in Title IV Programs. However, an institution that is
certified to participate in Title IV Programs may establish an additional location and apply to participate in Title IV Programs at that location without reference to the two-year requirement, if such additional location satisfies all other
applicable DOE eligibility requirements. Our expansion plans are based, in part, on our ability to open new schools as additional locations of our existing institutions and take into account the DOE's approval requirements.
A student may use Title IV Program funds only to pay the costs associated with enrollment in an eligible educational program offered by an institution
participating in Title IV Programs. Generally, unless otherwise required by the DOE, an institution that is eligible to participate in Title IV Programs may add a new educational program without DOE approval if that new program leads to an
associate’s level or higher degree and the institution already offers programs at that level, or if that program prepares students for gainful employment in the same or a related occupation as an educational program that has previously been
designated as an eligible program at that institution and meets minimum length requirements. Institutions that are provisionally certified may be required to obtain approval of certain educational programs. Our institution in Indianapolis is
provisionally certified and required to obtain prior DOE approval of new degree, non-degree, and short-term training educational programs. Our Iselin institution also is subject to prior approval requirements for substantive changes such as new
campuses and educational programs as a result of its accrediting agency’s loss of DOE recognition, and the DOE has indicated that such changes only will be approved in limited circumstances. If an institution erroneously determines that an
educational program is eligible for purposes of Title IV Programs, the institution would likely be liable for repayment of Title IV Program funds provided to students in that educational program. Our expansion plans are based, in part, on our
ability to add new educational programs at our existing schools.
Some of the state education agencies and our accrediting commission also have requirements that may affect our schools' ability to open a new campus,
establish an additional location of an existing institution or begin offering a new educational program.
Administrative Capability. The DOE assesses
the administrative capability of each institution that participates in Title IV Programs under a series of separate standards. Failure to satisfy any of the standards may lead the DOE to find the institution ineligible to participate in Title IV
Programs or to place the institution on provisional certification as a condition of its participation. These criteria require, among other things, that the institution:
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Comply with all applicable federal student financial aid requirements;
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Have capable and sufficient personnel to administer the federal student Title IV Programs;
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Administer Title IV Programs with adequate checks and balances in its system of internal controls over financial reporting;
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Divide the function of authorizing and disbursing or delivering Title IV Program funds so that no office has the responsibility for both functions;
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Establish and maintain records required under the Title IV Program regulations;
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Develop and apply an adequate system to identify and resolve discrepancies in information from sources regarding a student’s application for financial aid under the Title
IV Program;
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Have acceptable methods of defining and measuring the satisfactory academic progress of its students;
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Refer to the Office of the Inspector General any credible information indicating that any applicant, student, employee, third party servicer or other agent of the school
has been engaged in any fraud or other illegal conduct involving Title IV Programs;
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Not be, and not have any principal or affiliate who is, debarred or suspended from federal contracting or
engaging in activity that is cause for debarment or suspension;
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Provide adequate financial aid counseling to its students;
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Submit in a timely manner all reports and financial statements required by the Title IV Program regulations; and
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Not otherwise appear to lack administrative capability.
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Failure by us to satisfy any of these or other administrative capability criteria could cause our institutions to be subject to sanctions or other actions
by the DOE or to lose eligibility to participate in Title IV Programs, which would have a significant impact on our business and results of operations.
Restrictions on Payment of Commissions, Bonuses and
Other Incentive Payments. An institution participating in Title IV Programs may not provide any commission, bonus or other incentive payment based directly or indirectly
on success in securing enrollments or financial aid to any person or entity engaged in any student recruiting or admission activities or in making decisions regarding the awarding of Title IV Program funds. The DOE’s regulations
established twelve “safe harbors” identifying types of compensation that could be paid without violating the incentive compensation rule. On October 29, 2010, the DOE adopted final rules that took effect on July 1, 2011 and amended the incentive
compensation rule by, among other things, eliminating the twelve safe harbors (thereby reducing the scope of permissible compensatory payments under the rule) and expanding the scope of compensatory payments and employees subject to the rule.
The DOE has stated that it does not intend to provide private guidance regarding particular compensation structures in the future and will enforce the regulations as written. We cannot predict how the DOE will interpret and enforce the revised
incentive compensation rule. The implementation of the final regulations required us to change our compensation practices and has had and will continue to have a significant impact
the productivity of our employees, on the retention of our employees and on our business and results of operations.
Compliance with Regulatory Standards and Effect of
Regulatory Violations. Our schools are subject to audits, program reviews, site visits, and other reviews by various federal and state regulatory agencies, including, but not limited to, the DOE, the DOE's Office of Inspector General,
state education agencies and other state regulators, the U.S. Department of Veterans Affairs and other federal agencies, and by our accrediting commissions. In addition, each of our institutions must retain an independent certified public
accountant to conduct an annual audit of the institution's administration of Title IV Program funds. The institution must submit the resulting audit report to the DOE for review.
If one of our schools fails to comply with accrediting or state licensing requirements, such school and its main and/or branch campuses could be subject to
the loss of state licensure or accreditation, which in turn could result in a loss of eligibility to participate in Title IV Programs. If the DOE or another agency determined that one of our institutions improperly disbursed Title IV Program
funds or violated a provision of the HEA or DOE regulations, the institution could be required to repay such funds and related costs to the DOE and lenders, and could be assessed an administrative fine. The DOE could also place the institution on
provisional certification status and/or transfer the institution to the reimbursement or cash monitoring system of receiving Title IV Program funds, under which an institution must disburse its own funds to students and document the students'
eligibility for Title IV Program funds before receiving such funds from the DOE. See “Regulatory Environment – Financial Responsibility Standards.”
Significant violations of Title IV Program requirements by the Company or any of our institutions could be the basis for the DOE to limit, suspend or
terminate the participation of the affected institution in Title IV Programs or to seek civil or criminal penalties. Generally, such a termination of Title IV Program eligibility extends for 18 months before the institution may apply for
reinstatement of its participation. There is no DOE proceeding pending to fine any of our institutions or to limit, suspend or terminate any of our institutions' participation in Title IV Programs.
We and our schools are also subject to claims and lawsuits relating to regulatory compliance brought not only by federal and state regulatory agencies and
our accrediting bodies, but also by third parties, such as present or former students or employees and other members of the public. If we are unable to successfully resolve or defend against any such claim or lawsuit, we may be required to pay
money damages or be subject to fines, limitations, loss of federal funding, injunctions or other penalties. Moreover, even if we successfully resolve or defend against any such claim or lawsuit, we may have to devote significant financial and
management resources in order to reach such a result.
The risk factors described below and other information included elsewhere in this Form 10-K are among the numerous risked faced by our
Company and should be carefully considered before deciding to invest in, sell or retain shares of our common stock. The risks and uncertainties described below are not the only ones we face.
RISKS RELATED TO OUR INDUSTRY
Our failure to comply with the extensive regulatory requirements for
participation in Title IV Programs and school operations could result in financial penalties, restrictions on our operations and loss of external financial aid funding, which could affect our revenues and impose significant operating
restrictions on us.
Our industry is highly regulated by federal and state governmental agencies and by accrediting commissions. In particular, the HEA and DOE regulations
specify extensive criteria and numerous standards that an institution must satisfy to establish to participate in the Title IV Programs. For a description of these criteria, see “Regulatory Environment.”
If we are found not to have satisfied the DOE's requirements for Title IV Programs funding,
one or more of our institutions, including its additional locations, could be limited in its access to, or lose, Title IV Program funding, which could adversely affect our revenue, as we received approximately 78% of our revenue (calculated
based on cash receipts) from Title IV Programs in 2018, and have a significant impact on our business and results of operations. Furthermore, if any of our schools fails to comply with applicable regulatory requirements, the school and its
related main campus and/or additional locations could be subject to, among other things, the loss of state licensure or accreditation, the loss of eligibility to participate in and receive funds under the Title IV Programs, the loss of the
ability to grant degrees, diplomas and certificates, provisional certification, or the imposition of liabilities or monetary penalties, any of which could adversely affect our revenues and impose significant operating restrictions upon us. In
addition, the loss by any of our schools of its accreditation, its state authorization or license, or its eligibility to participate in Title IV Programs would constitute an event of default under our credit agreement with our lender, which
could result in the acceleration of all amounts then outstanding with respect to our outstanding loan obligations. The various regulatory agencies applicable to our business periodically revise their requirements and modify their
interpretations of existing requirements and restrictions. We cannot predict with certainty how any of these regulatory requirements will be applied or whether each of our schools will be able to comply with these requirements or any additional
requirements instituted in the future.
If we fail to demonstrate "administrative capability" to the DOE, our business could suffer.
DOE regulations specify extensive criteria an institution must satisfy to establish that it has the requisite "administrative capability" to participate in
Title IV Programs. For a description of these criteria, see “Regulatory Environment – Administrative Capability.”
If we are found not to have satisfied the DOE's "administrative capability" requirements, or
otherwise failed to comply with one or more DOE requirements, one or more of our institutions, including its additional locations, could be limited in its access to, or lose, Title IV Program funding. A loss or decrease in Title IV funding could adversely affect our revenue, as we received approximately 78% of our revenue (calculated based on cash receipts) from Title IV Programs in 2018, which would
have a significant impact on our business and results of operations.
Congress and the DOE may make changes to the laws and regulations applicable to, or reduce funding for, Title IV Programs, which could
reduce our student population, revenues or profit margin.
Congress periodically revises the HEA and other laws governing Title IV Programs and annually determines the funding level for each Title IV Program. We
cannot predict what if any legislative or other actions will be taken or proposed by Congress in connection with the reauthorization of the HEA or with other activities of
Congress. See “Regulatory Environment – Congressional Action.” Because a significant percentage of our revenues are derived from the Title IV programs, any action by Congress or the DOE that significantly reduces funding for Title IV Programs
or that limits or restricts the ability of our schools, programs, or students to receive funding through those Programs or that imposes new restrictions or constraints upon
our business or operations could reduce our student enrollment and our revenues, and could increase our administrative costs and require us to modify our practices in order for our schools to comply fully with Title IV program requirements. In
addition, current requirements for student or school participation in Title IV Programs may change or one or more of the present Title IV Programs could be replaced by other programs with materially different student or school eligibility requirements. If we cannot comply with the provisions of the HEA, as they may be revised, or if the
cost of such compliance is excessive, or if funding is materially reduced, our revenues or profit margin could be materially adversely affected.
The DOE has changed its regulations, and may make other changes in the future, in a manner which could require us to incur additional
costs in connection with our administration of the Title IV Programs, affect our ability to remain eligible to participate in the Title IV Programs, impose restrictions on our participation in the Title IV Programs, affect the rate at which students enroll in our
programs, or otherwise have a significant impact on our business and results of operations.
In October 2014, the DOE issued final regulations on gainful employment requiring each educational program to achieve threshold rates in two debt measure
categories related to an annual debt to annual earnings ratio and an annual debt to discretionary income ratio. The regulations outline various scenarios under which programs could lose Title IV Program eligibility for failure to achieve
threshold rates in one or more measures over certain periods of time ranging from two to four years. The regulations also require an institution to provide warnings to students in programs which may lose Title IV Program eligibility at the end of
an award year. The final regulations also contain other provisions that, among other things, include disclosure, reporting, new program approval, and certification requirements. See “Regulatory Environment – Gainful Employment.”
In August 2018, the DOE published proposed regulations that would eliminate the existing gainful employment regulations. The DOE indicated that its plans
include, but are not limited to, publishing outcomes data at the program level on a DOE website such as the College Scorecard or some other website. The DOE permitted the submission of public comments to the proposed regulations until September
13, 2018. Any regulations published in final form by November 1, 2018 typically would have taken effect on July 1, 2019. However, the DOE announced that it would not publish the regulations in final form by November 1, 2018 and has not yet
issued the final regulations. If the regulations are published prior to November 1, 2019, they typically would take effect on July 1, 2020 unless the DOE is willing and able to provide for an earlier implementation date. We cannot provide any
assurance as to the timing, content, and ultimate effective date of any such final regulations.
In June 2018, the DOE announced the further extension of the compliance date for certain other gainful employment disclosure requirements until July 1,
2019. The DOE stated that institutions are still required to comply with other gainful employment disclosure requirements in the interim.
On August 18, 2017, the DOE announced in the Federal Register new
deadlines for submitting notices of intent to file alternate earnings appeals of gainful employment rates and for submitting alternate earnings appeals of those rates. The deadline to file a notice of intent to file an appeal was October 6, 2017
and the deadline to file the alternate earnings appeal was February 1, 2018. We cannot predict when the DOE will calculate and issue new draft or final gainful employment rates in the future. We also cannot predict whether the gainful employment
rulemaking process or the extension of certain gainful employment deadlines may result in the DOE delaying the issuance of new draft or final gainful employment rates in the future.
In January 2016, the DOE began negotiated rulemaking to develop proposed regulations
regarding a borrower’s ability to allege acts or omissions by an institution as a defense to the repayment of certain Title IV loans and the consequences to the borrower, the DOE, and the institution. See “Regulatory Environment – Borrower
Defense to Repayment Regulations.” On November 1, 2016, the DOE published in the Federal Register the final version of these regulations with a general effective date of
July 1, 2017 and which, among other things, include rules for:
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establishing new processes, and updating existing processes, for enabling borrowers to obtain from the DOE a discharge of some or all of their federal student loans
based on circumstances such as certain acts or omissions of the institution and for the DOE to impose and collect liabilities against the institution following the loan discharges;
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establishing expanded standards of financial responsibility (see “Financial Responsibility Standards”);
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requiring institutions to make disclosures to current and prospective students regarding the existence of certain of the circumstances identified in the expanded
standards of financial responsibility;
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calculating a loan repayment rate for each proprietary institution under standards established by the regulations and requiring institutions to provide warnings to
current and prospective students if the institution has a loan repayment rate below specified thresholds;
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prohibiting certain contractual provisions imposed by or on behalf of schools on students regarding arbitration, dispute resolution, and participation in class actions;
and
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expanding the existing definition of misrepresentations that could result in grounds for discharge of student loans and in liabilities and sanctions against the
institution, including, without limitation, potential loss of Title IV eligibility.
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On January 19, 2017, the DOE issued new regulations that update the Department’s hearing procedures for actions to establish liability against an
institution and to establish procedural rules governing recovery proceedings under the DOE’s borrower defense to repayment regulations.
The DOE had delayed the effective date of a majority of these regulations until July 1, 2019 to ensure that there is adequate time to conduct negotiated
rulemaking and, as necessary, develop revised regulations. However, a federal court ruled that the delay in the effective date of the regulations was unlawful and, on October 16, 2018, denied a request to extend a stay preventing the regulations
from taking effect. The DOE has not yet issued subsequent guidance regarding how the DOE will implement the regulations. There is ongoing litigation challenging the regulations, but we cannot provide any assurance as to whether the litigation
could result in the future suspension or invalidation of some or all of those regulations.
The DOE published proposed regulations on July 31, 2018 that would modify the defense to
repayment regulations, including regulations regarding, among other things, acts or omissions of an institution of higher education a borrower may
assert as a defense to repayment of certain Title IV loans. The proposed regulations also include regulations regarding other topics such as permitting the use of arbitration clauses and class action waivers in enrollment agreements and
triggering events that would result in recalculating a school’s financial responsibility score and require the school to post a letter of credit or other surety. We are in
the process of evaluating the proposed regulations. Any regulations published in final form by November 1, 2018 typically would have taken effect on July 1, 2019. However, the DOE announced that it would not publish the regulations in final
form by November 1, 2018 and has not yet issued the final regulations. If the regulations are published prior to November 1, 2019, they typically would take effect on July 1, 2020 unless the DOE is willing and able to provide for an earlier
implementation date. We cannot provide any assurance as to the timing, content, and ultimate effective date of any such final regulations. We cannot predict how the DOE will interpret and enforce the current borrower defense to repayment
rules, or any final rules that may arise out of the DOE’s ongoing rulemaking process, or how the current or future rules may impact our schools’ participation in the Title IV Programs; however, the current and future rules could have a material
adverse effect on our schools’ business and results of operations, and the broad sweep of the rules may, in the future, require our schools to submit a letter of credit based on expanded standards of financial responsibility. See “Regulatory
Environment – Financial Responsibility Standards.” We cannot predict how the DOE would interpret and enforce current or future borrower defense to repayment rules or how these rules, or any rules that may arise out of the negotiated
rulemaking process or any other rules that DOE may promulgate on this or other topics, may impact our schools’ participation in the Title IV programs; however, the new rules could have a material adverse effect on our schools’ business and
results of operations, and the broad sweep of the rules may, in the future, require our schools to submit a letter of credit based on expanded standards of financial responsibility.
On October 15, 2018, the DOE published a notice in the Federal Register announcing its intent
to establish a negotiated rulemaking committee and three subcommittees to develop proposed regulations related to several matters. See “Regulatory Environment – Negotiated Rulemaking.”. On January 7, 2019, the DOE released a set of draft
proposed regulations for consideration and negotiation by the negotiated rulemaking committee and subcommittees. The draft proposed regulations also cover additional topics including, but not limited to, amendments to current regulations
regarding the clock to credit hour conversion formula for measuring the lengths of certain educational programs, the return of unearned Title IV funds received for students who withdraw before completing their educational programs, and the
measurement of student academic progress. The proposed changes to the regulations remain subject to further change during the negotiated rulemaking process and we continue to monitor and review those proposals as they evolve. The
committee and subcommittees are scheduled to meet during the first three months of 2019. At this time, we cannot provide any assurances as to the timing, content or impact of any final regulations arising from this planned negotiated rulemaking process.
If we or our eligible institutions do not meet the financial responsibility standards prescribed by the DOE, we may be required to post
letters of credit or our eligibility to participate in Title IV Programs could be terminated or limited, which could significantly reduce our student population and revenues.
To participate in Title IV Programs, an eligible institution must satisfy specific measures of financial responsibility prescribed by the DOE or post a
letter of credit in favor of the DOE and possibly accept other conditions on its participation in Title IV Programs. The DOE published new regulations that establish expanded
standards of financial responsibility that could result in a requirement that we submit to the DOE a substantial letter of credit or other form of financial protection in an amount determined by the DOE, and be subject to other conditions and
requirements, based on any one of an extensive list of triggering circumstances. See “Regulatory Environment – Financial Responsibility Standards.” Any obligation to post one or more letters of credit would increase our costs of
regulatory compliance. Our inability to obtain a required letter of credit or limitations on, or termination of, our participation in Title IV Programs could limit our students' access to various government-sponsored student financial aid
programs, which could significantly reduce our student population and revenues.
We are subject to fines and other sanctions if we pay impermissible commissions, bonuses or other incentive payments to individuals
involved in certain recruiting, admissions or financial aid activities, which could increase our cost of regulatory compliance and adversely affect our results of operations.
An institution participating in Title IV Programs may not provide any commission, bonus or other incentive payment based directly or indirectly on success
in enrolling students or securing financial aid to any person involved in any student recruiting or admission activities or in making decisions regarding the awarding of Title IV Program funds. See “Regulatory Environment -- Restrictions on Payment of Commissions, Bonuses and Other Incentive Payments.” We cannot predict how the DOE will interpret and enforce the incentive compensation rule. The
implementation of these regulations has required us to change our compensation practices and has had and may continue to have a significant impact on the rate at which students enroll in our programs and on our business and results of
operations. If we are found to have violated this law, we could be fined or otherwise sanctioned by the DOE or we could face litigation filed under the qui tam
provisions of the Federal False Claims Act.
If our schools do not maintain their accreditation, they may not participate in Title IV Programs, which could adversely affect our
student population and revenues.
An institution must be accredited by an accrediting commission recognized by the DOE in order to participate in Title IV Programs. See “Regulatory
Environment – Accreditation.,” If any of our schools fails to comply with accrediting commission requirements, the institution and its main and/or branch campuses are subject to the loss of accreditation or may be placed on probation or a special
monitoring or reporting status which, if the noncompliance with accrediting commission requirements is not resolved, could result in loss of accreditation. Loss of accreditation by any of our main campuses would result in the termination of
eligibility of that school and all of its branch campuses to participate in Title IV Programs and could cause us to close the school and its branches, which could have a significant adverse impact on our business and operations.
Programmatic accreditation is the process through which specific programs are reviewed and approved by industry- and program-specific accrediting entities.
Although programmatic accreditation is not generally necessary for Title IV eligibility, such accreditation may be required to allow students to sit for certain licensure exams or to work in a particular profession or career or to meet other
requirements. Failure to obtain or maintain such programmatic accreditation may lead to a decline in enrollments in such programs. Moreover, under new gainful employment regulations issued by the DOE, institutions are required to certify that they have programmatic accreditation under certain circumstances. See “Regulatory Environment – Gainful Employment.” Failure to comply with these new requirements
could impact the Title IV eligibility of educational programs that are required to maintain such programmatic accreditation.
Our institutions would lose eligibility to participate in Title IV Programs if the percentage of their revenues derived from those
programs exceeds 90%, which could reduce our student population and revenues.
Under the HEA reauthorization, a proprietary institution that derives more than 90% of its total revenue from Title IV Programs
for two consecutive fiscal years becomes immediately ineligible to participate in Title IV Programs and may not reapply for eligibility until the end of at least two fiscal
years. An institution with revenues exceeding 90% for a single fiscal year will be placed on provisional certification and may be subject to other enforcement measures. See “Regulatory Environment – 90/10 Rule.” If any of our institutions loses
eligibility to participate in Title IV Programs, that loss would cause an event of default under our credit agreement, would also adversely affect our students’ access to various government-sponsored student financial aid programs, and would have
a significant impact on the rate at which our students enroll in our programs and on our business and results of operations.
Our institutions would lose eligibility to participate in Title IV
Programs if their former students defaulted on repayment of their federal student loans in excess of specified levels, which could reduce our student population and revenues.
An institution may lose its eligibility to participate in some or all Title IV Programs if the rates at which the institution's current and former students
default on their federal student loans exceed specified percentages. See “Regulatory Environment – Student Loan Defaults.” If former students defaulted on repayment of their federal student loans in excess of specified levels, our institutions
would lose eligibility to participate in Title IV Programs, would cause an event of default under our credit agreement, would also adversely affect our students’ access to various government-sponsored student financial aid programs, and would
have a significant impact on the rate at which our students enroll in our programs and on our business and results of operations.
We are subject to sanctions if we fail to correctly calculate and timely
return Title IV Program funds for students who withdraw before completing their educational program, which could increase our cost of regulatory compliance and decrease our profit margin.
An institution participating in Title IV Programs must correctly calculate the amount of unearned Title IV Program funds that have been credited to students
who withdraw from their educational programs before completing them and must return those unearned funds in a timely manner, generally within 45 days of the date the institution determines that the student has withdrawn. If the unearned funds are
not properly calculated and timely returned, we may have to post a letter of credit in favor of the DOE or may be otherwise sanctioned by the DOE, which could increase our cost of regulatory compliance and adversely affect our results of
operations. Based upon the findings of an annual Title IV Program compliance audit of our Columbia, Maryland and Iselin, New Jersey institutions, the Company submitted letters of credit in the amounts of $0.5 million and $0.1 million to the DOE.
We are required to maintain those letters of credit in place for a minimum of two years. See “Regulatory Environment – Return of Title IV Program Funds.”
We are subject to sanctions if we fail to comply with the DOE’s regulations regarding prohibitions against substantial
misrepresentations, which could increase our cost of regulatory compliance and decrease our profit margin.
The DOE’s regulations prohibit an institution that participates in the Title IV Programs from engaging in substantial misrepresentation of the nature of its
educational programs, financial charges, graduate employability or its relationship with the DOE. See “Regulatory Environment – Substantial Misrepresentation.” If the DOE determines that one of our institutions has engaged in substantial
misrepresentation, the DOE may impose sanctions or other conditions upon the institution including, but not limited to, initiating an action to fine the institution or limit, suspend, or terminate its eligibility to participate in the Title IV
Programs and may seek to discharge students’ loans and impose liabilities upon the institution.
Regulatory agencies or third parties may conduct compliance reviews, bring
claims or initiate litigation against us. If the results of these reviews or claims are unfavorable to us, our results of operations and financial condition could be adversely affected.
Because we operate in a highly regulated industry, we are subject to compliance reviews and claims of noncompliance and lawsuits by government agencies and
third parties. If the results of these reviews or proceedings are unfavorable to us, or if we are unable to defend successfully against third-party lawsuits or claims, we may be required to pay money damages or be subject to fines, limitations on
the operations of our business, loss of federal and state funding, injunctions or other penalties. Even if we adequately address issues raised by an agency review or
successfully defend a third-party lawsuit or claim, we may have to divert significant financial and management resources from our ongoing business operations to address issues raised by those reviews or defend those lawsuits or claims. Certain
of our institutions are subject to ongoing reviews and proceedings. See “Regulatory Environment – State Authorization,” “Regulatory Environment – Accreditation,” and “Regulatory Environment - Compliance with Regulatory Standards and Effect of
Regulatory Violations.”
A decline in the overall growth of enrollment in post-secondary
institutions, or in our core disciplines, could cause us to experience lower enrollment at our schools, which could negatively impact our future growth.
Enrollment in post-secondary institutions over the next ten years is expected to be
slower than in the prior ten years. In addition, the number of high school graduates eligible to enroll in post-secondary institutions is expected to fall before resuming a
growth pattern for the foreseeable future. In order to increase our current growth rates in degree granting programs, we will need to attract a larger percentage of students in existing markets and expand our markets by creating new academic
programs. In addition, if job growth in the fields related to our core disciplines is weaker than expected, as a result of any regional or national economic downturn or otherwise,
fewer students may seek the types of diploma or degree granting programs that we offer or seek to offer. Our failure to attract new students, or the decisions by prospective
students to seek diploma or degree programs in other disciplines, would have an adverse impact on our future growth.
Our business could be adversely impacted by additional legislation, regulations, or investigations regarding private student lending
because students attending our schools rely on private student loans to pay tuition and other institutional charges.
The U.S. Consumer Financial Protection Bureau (“CFPB”), under the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010, has exercised
supervisory authority over private education loan providers. The CFPB has been active in conducting investigations into the private student loan market and issuing several reports with findings that are critical of the private student loan
market. The CFPB has initiated investigations into the lending practices of other institutions in the for-profit education sector. The CFPB has issued procedures for further examination of private education loans and published requests for
information regarding repayment plans and regarding arrangements between schools and financial institutions. On August 31, 2017, the DOE informed CFPB that it was terminating an information sharing Memorandum of Understanding between the two
agencies, in part because the CFPB was acting on student complaints rather than referring them to the DOE for action. The DOE asserted full oversight responsibility for federal student loans, but not with respect to private loans. In late
November 2017, new leadership at the CFPB began taking steps to end or pause certain investigations and to restrict or reconsider some its enforcement activities. However, it is unclear the extent to which the CFPB will continue to exercise
oversight authority over private education loan providers.
We cannot predict whether any of this activity, or other activities, will result in Congress, the DOE, the CFPB or other regulators adopting new legislation
or regulations, or conducting new investigations, into the private student loan market or into the loans received by our students to attend our institutions. Any new legislation, regulations, or investigations regarding private student lending
could limit the availability of private student loans to our students, which could have a significant impact on our business and operations.
RISKS RELATED TO OUR BUSINESS
Our success depends in part on our ability to update and expand the content of existing programs and develop new programs in a
cost-effective manner and on a timely basis.
Prospective employers of our graduates increasingly demand that their entry-level employees
possess appropriate technological skills. These skills are becoming more sophisticated in line with technological advancements in the automotive, diesel, information technology, and skilled trades. Accordingly, educational programs at our
schools must keep pace with those technological advancements. The expansion of our existing programs and the development of new programs may not be accepted by our students, prospective employers or the technical education market. Even if we
are able to develop acceptable new programs, we may not be able to introduce these new programs as quickly as our competitors or as quickly as employers demand. If we are unable to adequately respond to changes in market requirements due to
financial constraints, unusually rapid technological changes or other factors, our ability to attract and retain students could be impaired, our placement rates could suffer and our revenues could be adversely affected.
In addition, if we are unable to adequately anticipate the requirements of the employers we
serve, we may offer programs that do not teach skills useful to prospective employers or students seeking a technical or career-oriented education which could affect our placement rates and our ability to attract and retain students, causing
our revenues to be adversely affected.
Competition could decrease our market share and cause us to lower our tuition rates.
The post-secondary education market is highly competitive. Our schools compete for students and faculty with traditional public and private two-year and
four-year colleges and universities and other proprietary schools, many of which have greater financial resources than we do. Some traditional public and private colleges and universities, as well as other private career-oriented schools, offer
programs that may be perceived by students to be similar to ours. Most public institutions are able to charge lower tuition than our schools, due in part to government subsidies and other financial resources not available to for-profit schools.
Some of our competitors also have substantially greater financial and other resources than we have which may, among other things, allow our competitors to secure strategic relationships with some or all of our existing strategic partners or
develop other high profile strategic relationships, or devote more resources to expanding their programs and their school network, or provide greater financing alternatives to their students, all of which could affect the success of our marketing
programs. In addition, some of our competitors have a larger network of schools and campuses than we do, enabling them to recruit students more effectively from a wider geographic area. If we are unable to compete effectively with these
institutions for students, our student enrollment and revenues will be adversely affected.
We may be required to reduce tuition or increase spending in response to competition in order to retain or attract students or pursue new market
opportunities. As a result, our market share, revenues and operating margin may be decreased. We cannot be sure that we will be able to compete successfully against current or future competitors or that the competitive pressures we face will not
adversely affect our revenues and profitability.
Our financial performance depends in part on our ability to continue to develop awareness and acceptance of our programs among high
school graduates and working adults looking to return to school.
The awareness of our programs among high school graduates and working adults looking to return to school is critical to the continued acceptance and growth
of our programs. Our inability to continue to develop awareness of our programs could reduce our enrollments and impair our ability to increase our revenues or maintain profitability. The following are some of the factors that could prevent us
from successfully marketing our programs:
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Student dissatisfaction with our programs and services;
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Diminished access to high school student populations;
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Our failure to maintain or expand our brand or other factors related to our marketing or advertising
practices; and
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Our inability to maintain relationships with employers in the automotive, diesel, skilled trades and IT
services industries.
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An increase in interest rates could adversely affect our ability to attract and retain students.
Our students and their families have benefitted from historic lows on student loan interest rates in recent years. Much of the financing our students
receive is tied to floating interest rates. Recently, however, student loan interest rates have been edging higher, making borrowing for education more expensive. Increases in interest rates result in a corresponding increase in the cost to our
existing and prospective students of financing their education, which could result in a reduction in the number of students attending our schools and could adversely affect our results of operations and revenues. Higher interest rates could also
contribute to higher default rates with respect to our students' repayment of their education loans. Higher default rates may in turn adversely impact our eligibility for Title IV Program participation or the willingness of private lenders to
make private loan programs available to students who attend our schools, which could result in a reduction in our student population.
A substantial decrease in student financing options, or a significant increase in financing costs for our students, could have a
significant impact on our student population, revenues and financial results.
The consumer credit markets in the United States have recently suffered from increases in default rates and foreclosures on mortgages. Adverse market
conditions for consumer and federally guaranteed student loans could result in providers of alternative loans reducing the attractiveness and/or decreasing the availability of alternative loans to post-secondary students, including students with
low credit scores who would not otherwise be eligible for credit-based alternative loans. Prospective students may find that these increased financing costs make borrowing prohibitively expensive and abandon or delay enrollment in post-secondary
education programs. Private lenders could also require that we pay them new or increased fees in order to provide alternative loans to prospective students. If any of these scenarios were to occur, our students’ ability to finance their education
could be adversely affected and our student population could decrease, which could have a significant impact on our financial condition, results of operations and cash flows.
In addition, any actions by the U.S. Congress or by states that significantly reduce funding for Title IV Programs or other student financial assistance
programs, or the ability of our students to participate in these programs, or establish different or more stringent requirements for our schools to participate in those programs, could have a significant impact on our student population, results
of operations and cash flows.
Our total assets include substantial intangible assets. In the event that our schools do not achieve satisfactory operating results, we
may be required to write-off a significant portion of unamortized intangible assets which would negatively affect our results of operations.
Our total assets reflect substantial intangible assets. At December 31, 2018, goodwill associated with our acquisitions increased to approximately 10.0%
from 9.4% of total assets at December 31, 2017. On at least an annual basis, we assess whether there has been an impairment in the value of goodwill. If the carrying value of the tested asset exceeds its estimated fair value, impairment is
deemed to have occurred. In this event, the amount is written down to fair value. Under current accounting rules, this would result in a charge to operating earnings. Any determination requiring the write-off of a significant portion of
goodwill would negatively affect our results of operations and total capitalization, which could be material.
We cannot predict our future capital needs, and if we are unable to secure additional financing when needed, our operations and revenues
would be adversely affected.
We may need to raise additional capital in the future to fund acquisitions, working capital requirements, expand our markets and program offerings or
respond to competitive pressures or perceived opportunities. We cannot be sure that additional financing will be available to us on favorable terms, or at all. If adequate funds are not available when required or on acceptable terms, we may be
forced to forego attractive acquisition opportunities, cease our operations and, even if we are able to continue our operations, our ability to increase student enrollment and revenues would be adversely affected.
We may not be able to retain our key personnel or hire and retain the personnel we need to sustain and grow our business.
Our success has depended, and will continue to depend, largely on the skills, efforts and motivation of our executive officers who generally have
significant experience within the post-secondary education industry. Our success also depends in large part upon our ability to attract and retain highly qualified faculty, school directors, administrators and corporate management. Due to the
nature of our business, we face significant competition in the attraction and retention of personnel who possess the skill sets that we seek. In addition, key personnel may leave us and subsequently compete against us. Furthermore, we do not
currently carry "key man" life insurance on any of our employees. The loss of the services of any of our key personnel, or our failure to attract and retain other qualified and experienced personnel on acceptable terms, could have an adverse
effect on our ability to operate our business efficiently and to execute our growth strategy.
Strikes by our employees may disrupt our ability to hold classes as well as our ability to attract and retain students, which could
materially adversely affect our operations. In addition, we contribute to multiemployer benefit plans that could result in liabilities to us if these plans are terminated or we withdraw from them.
As of December 31, 2018, the teaching professionals at six of our campuses are represented by unions and covered by collective bargaining agreements that
expire between 2019 and 2022. Although we believe that we have good relationships with these unions and with our employees, any strikes or work stoppages by our employees could adversely impact our relationships with our students, hinder our
ability to conduct business and increase costs.
We also contribute to multiemployer pension plans for some employees covered by collective bargaining agreements. These plans are not administered by us,
and contributions are determined in accordance with provisions of negotiated labor contracts. The Employee Retirement Income Security Act of 1974, as amended by the Multiemployer Pension Plan Amendments Act of 1980, imposes certain liabilities
upon employers who are contributors to a multiemployer plan in the event of the employer’s withdrawal from, or upon termination of, such plan. We do not routinely review information on the net assets and actuarial present value of the
multiemployer pension plans’ unfunded vested benefits allocable to us, if any, and we are not presently aware of any material amounts for which we may be contingently liable if we were to withdraw from any of these plans. In addition, if any of
these multiemployer plans enters “critical status” under the Pension Protection Act of 2006, we could be required to make significant additional contributions to those plans.
Anti-takeover provisions in our amended and restated certificate of incorporation, our bylaws and New Jersey law could discourage a
change of control that our stockholders may favor, which could negatively affect our stock price.
Provisions in our amended and restated certificate of incorporation and our bylaws and applicable provisions of the New Jersey Business Corporation Act
may make it more difficult and expensive for a third party to acquire control of us even if a change of control would be beneficial to the interests of our stockholders. These provisions could discourage potential takeover attempts and could
adversely affect the market price of our common stock. For example, applicable provisions of the New Jersey Business Corporation Act may discourage, delay or prevent a change in control by prohibiting us from engaging in a business combination
with an interested stockholder for a period of five years after the person becomes an interested stockholder. Furthermore, our amended and restated certificate of incorporation and bylaws:
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authorize the issuance of blank check preferred stock that could be issued by our board of directors to
thwart a takeover attempt;
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prohibit cumulative voting in the election of directors, which would otherwise allow holders of less than a
majority of stock to elect some directors;
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require super-majority voting to effect amendments to certain provisions of our amended and restated
certificate of incorporation;
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limit who may call special meetings of both the board of directors and stockholders;
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prohibit stockholder action by non-unanimous written consent and otherwise require all stockholder actions
to be taken at a meeting of the stockholders;
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| · |
establish advance notice requirements for nominating candidates for election to the board of directors or for proposing matters that can be acted upon by stockholders at
stockholders' meetings; and
|
| · |
require that vacancies on the board of directors, including newly created directorships, be filled only by a majority vote of directors then in office.
|
We can issue shares of preferred stock without stockholder approval, which
could adversely affect the rights of common stockholders.
Our amended and restated certificate of incorporation permits us to establish the rights, privileges, preferences and restrictions, including voting rights,
of future series of our preferred stock and to issue such stock without approval from our stockholders. The rights of holders of our common stock may suffer as a result of the rights granted to holders of preferred stock that may be issued in the
future. In addition, we could issue preferred stock to prevent a change in control of our Company, depriving common stockholders of an opportunity to sell their stock at a price in excess of the prevailing market price.
The trading price of our common stock may continue to fluctuate
substantially in the future.
Our stock price has declined substantially over the past five years and has and may fluctuate significantly as a result of a number of factors, some of
which are not in our control. These factors include:
| · |
general economic conditions;
|
| · |
general conditions in the for-profit, post-secondary education industry;
|
| · |
negative media coverage of the for-profit, post-secondary education industry;
|
| · |
failure of certain of our schools or programs to maintain compliance under the gainful employment regulation, 90-10 Rule or with financial responsibility standards;
|
| · |
the impact of DOE rulemaking and other changes in the highly regulated environment in which we operate;
|
| · |
the initiation, pendency or outcome of litigation, accreditation reviews and regulatory reviews, inquiries and investigations;
|
| · |
loss of key personnel;
|
| · |
quarterly variations in our operating results;
|
| · |
our ability to meet or exceed, or changes in, expectations of investors and analysts, or the extent of analyst coverage of us; and
|
| · |
decisions by any significant investors to reduce their investment in our common stock.
|
In addition, the trading volume of our common stock is relatively low. This may cause our stock price to react more to these factors and various other
factors and may impact an investor’s ability to sell our common stock at the desired time at a price considered satisfactory. Any of these factors may adversely affect the trading price of our common stock, regardless of our actual operating
performance, and could prevent an investor from selling shares of our common stock at or above the price at which the investor purchased them.
System disruptions to our technology infrastructure could impact our ability to generate revenue and could damage the reputation of our
institutions.
The performance and reliability of our technology infrastructure is critical to our
reputation and to our ability to attract and retain students. We license the software and related hosting and maintenance services for our online platform and our student information system from third-party software providers. Any system error
or failure, or a sudden and significant increase in bandwidth usage, could result in the unavailability of systems to us or our students or result in delays and/or errors in processing student financial aid and related disbursements. Any such
system disruptions could impact our ability to generate revenue and affect our ability to access information about our students and could also damage the reputation of our institutions. Any of the cyber-attacks, breaches or other
disruptions or damage described above could interrupt our operations, result in theft of our and our students’ data or result in legal claims and proceedings, liability and penalties under privacy laws and increased cost for security and
remediation, each of which could adversely affect our business and financial results. We may be required to expend significant resources to protect against system errors, failures
or disruptions or to repair problems caused by any actual errors, disruptions or failures.
We are subject to privacy and information security laws and regulations due to our collection and use of personal information, and any
violations of those laws or regulations, or any breach, theft or loss of that information, could adversely affect our reputation and operations.
Our efforts to attract and enroll students result in us collecting, using and storing substantial amounts of personal information regarding applicants, our
students, their families and alumni, including social security numbers and financial data. We also maintain personal information about our employees in the ordinary course of our activities. Our services, the services of many of our health plan
and benefit plan vendors, and other information can be accessed globally through the Internet. We rely extensively on our network of interconnected applications and databases for day to day operations as well as financial reporting and the
processing of financial transactions. Our computer networks and those of our vendors that manage confidential information for us or provide services to our student may be vulnerable to cyber-attacks and breaches, acts of vandalism, ransomware,
software viruses and other similar types of malicious activities.
Regular patching of our computer systems and frequent updates to our virus detection and prevention software with the latest virus and malware signatures
may not catch newly introduced malware and viruses or “zero-day” viruses, prior to their infecting our systems and potentially disrupting our data integrity, taking sensitive information or affecting financial transactions. While we utilize
security and business controls to limit access to and use of personal information, any breach of student or employee privacy or errors in storing, using or transmitting personal information could violate privacy laws and regulations resulting in
fines or other penalties. A wide range of high profile data breaches in recent years has led to renewed interest in federal data and cybersecurity legislation that could increase our costs and/or require changes in our operating procedures or
systems. A breach, theft or loss of personal information held by us or our vendors, or a violation of the laws and regulations governing privacy could have a material adverse effect on our reputation or result in lawsuits, additional regulation,
remediation and compliance costs or investments in additional security systems to protect our computer networks, the costs of which may be substantial.
Changes in U.S. tax laws or adverse outcomes from examination of our tax returns could have an adverse effect upon our financial results.
We are subject to income tax requirements in various jurisdictions in the United States. Legislation or other changes in the tax laws of the jurisdictions
where we do business could increase our liability and adversely affect our after-tax profitability. In addition, we are subject to examination of our income tax returns by the Internal Revenue Service and the taxing authorities of various
states. We regularly assess the likelihood of adverse outcomes resulting from tax examinations to determine the adequacy of our provision for income taxes and we have accrued tax and related interest for potential adjustments to tax liabilities
for prior years. However, there can be no assurance that the outcomes from these tax examinations will not have a material effect, either positive or negative, on our business, financial conditions and results of operation.
None.
As of December 31, 2018, we leased all of our facilities, except for our campuses in Nashville, Tennessee, Grand Prairie, Texas, and Denver, Colorado, and
former school property in Suffield, Connecticut, which we own. We continue to re-evaluate our facilities to maximize our facility utilization and efficiency and to allow us to introduce new programs and attract more students. As of December 31,
2018, all of our existing leases expire between 2019 and 2030.
The following table provides information relating to our facilities as of December 31, 2018, including our corporate office:
|
Location
|
Brand
|
Approximate Square Footage
|
||
|
Las Vegas, Nevada
|
Euphoria Institute
|
19,000
|
||
|
Southington, Connecticut
|
Former Lincoln College of New England
|
113,000
|
||
|
Columbia, Maryland
|
Lincoln College of Technology
|
110,000
|
||
|
Denver, Colorado
|
Lincoln College of Technology
|
212,000
|
||
|
Grand Prairie, Texas
|
Lincoln College of Technology
|
146,000
|
||
|
Indianapolis, Indiana
|
Lincoln College of Technology
|
189,000
|
||
|
Marietta, Georgia
|
Lincoln College of Technology
|
30,000
|
||
|
Melrose Park, Illinois
|
Lincoln College of Technology
|
88,000
|
||
|
Allentown, Pennsylvania
|
Lincoln Technical Institute
|
26,000
|
||
|
East Windsor, Connecticut
|
Lincoln Technical Institute
|
289,000
|
||
|
Iselin, New Jersey
|
Lincoln Technical Institute
|
32,000
|
||
|
Lincoln, Rhode Island
|
Lincoln Technical Institute
|
39,000
|
||
|
Mahwah, New Jersey
|
Lincoln Technical Institute
|
79,000
|
||
|
Moorestown, New Jersey
|
Lincoln Technical Institute
|
35,000
|
||
|
New Britain, Connecticut
|
Lincoln Technical Institute
|
35,000
|
||
|
Paramus, New Jersey
|
Lincoln Technical Institute
|
30,000
|
||
|
Philadelphia, Pennsylvania
|
Lincoln Technical Institute
|
29,000
|
||
|
Queens, New York
|
Lincoln Technical Institute
|
48,000
|
||
|
Shelton, Connecticut
|
Lincoln Technical Institute and Lincoln Culinary Institute
|
47,000
|
||
|
Somerville, Massachusetts
|
Lincoln Technical Institute
|
33,000
|
||
|
South Plainfield, New Jersey
|
Lincoln Technical Institute
|
60,000
|
||
|
Union, New Jersey
|
Lincoln Technical Institute
|
56,000
|
||
|
Nashville, Tennessee
|
Lincoln College of Technology
|
281,000
|
||
|
West Orange, New Jersey
|
Corporate Office
|
52,000
|
||
|
Plymouth Meeting, Pennsylvania
|
Corporate Office
|
4,000
|
||
|
Suffield, Connecticut
|
Former Lincoln Technical Institute
|
132,000
|
We believe that our facilities are suitable for their present intended purposes.
In the ordinary conduct of our business, we are subject to periodic lawsuits, investigations and claims, including, but not limited to, claims involving
students or graduates and routine employment matters. Although we cannot predict with certainty the ultimate resolution of lawsuits, investigations and claims asserted against us, we do not believe that any currently pending legal proceeding to
which we are a party will have a material effect on our business, financial condition, results of operations or cash flows.
Not applicable.
PART II.
Market for our Common Stock
Our common stock, no par value per share, is quoted on the Nasdaq Global Select Market under the symbol “LINC”.
On March 8, 2019, the last reported sale price of our common stock on the Nasdaq Global Select Market was $3.10 per share. As of March 8, 2019, based on
the information provided by Continental Stock Transfer & Trust Company, there were 10 stockholders of record of our common stock.
Dividend Policy
The Company has not declared or paid any cash dividends on its common stock since the Company’s Board of Directors discontinued our quarterly cash dividend
program in February 2015. The Company has no current intentions to resume the payment of cash dividends in the foreseeable future.
Share Repurchases
The Company did not repurchase any shares of our common stock during the fourth quarter of the fiscal year ended December 31, 2018.
Stock Performance Graph
This stock performance graph compares our total cumulative stockholder return on our common stock for the five years ended December 31, 2018 with the
cumulative return on the Russell 2000 Index and a Peer Issuer Group Index. The peer issuer group consists of the companies identified below, which were selected on the basis of the similar nature of their business. The graph assumes that $100 was
invested on December 31, 2013 and any dividends were reinvested on the date on which they were paid.
The information provided under the heading "Stock Performance Graph" shall not be considered "filed" for purposes of Section 18 of the
Securities Exchange Act of 1934 or incorporated by reference in any filing under the Securities Act of 1933 or the Securities Exchange Act of 1934, except to the extent that we specifically incorporate it by reference into a filing.
Companies in the Peer Group include Career Education Corp., Adtalem Global Education Inc., ITT Educational Services, Inc., Strayer Education, Inc.,
Bridgepoint Education, Inc., Apollo Education Group, Inc., Grand Canyon University, Inc. and Universal Technical Institute, Inc.
Equity Compensation Plan Information
We have various equity compensation plans under which equity securities are authorized for issuance. Information regarding these securities as of December
31, 2018 is as follows:
|
Plan Category
|
Number of
Securities to be
issued upon
exercise of
outstanding
options,
warrants and
rights
|
Weighted-
average
exercise
price of
outstanding
options,
warrants and
rights
|
Number of
securities
remaining
available for
future issuance
under equity
compensation
plans (excluding
securities
reflected in
column (a))
|
|||||||||
|
(a)
|
||||||||||||
|
Equity compensation plans approved by security holders
|
139,000
|
$
|
12.14
|
2,050,638
|
||||||||
|
Equity compensation plans not approved by security holders
|
-
|
-
|
-
|
|||||||||
|
Total
|
139,000
|
$
|
12.14
|
2,050,638
|
||||||||
The following table sets forth our selected historical consolidated financial and operating data as of the dates and for the periods indicated. You should
read these data together with Item 7 - "Management's Discussion and Analysis of Financial Condition and Results of Operations" and our consolidated financial statements and the notes thereto included elsewhere in this Annual Report on Form 10-K.
The selected historical consolidated statement of operations data for each of the years in the three-year period ended December 31, 2018 and historical consolidated balance sheet data at December 31, 2018 and 2017 have been derived from our
audited consolidated financial statements which are included elsewhere in this Annual Report on Form 10-K. The selected historical consolidated statements of operations data for the fiscal years ended December 31, 2015 and 2014 and historical
consolidated balance sheet data as of December 31, 2016, 2015 and 2014 have been derived from our consolidated financial information not included in this Annual Report on Form 10-K. Our historical results are not necessarily indicative of our
future results.
|
2018
|
2017
|
2016
|
2015
|
2014
|
||||||||||||||||
|
(In thousands, except per share amounts)
|
||||||||||||||||||||
|
Statement of Operations Data, Year Ended December 31:
|
||||||||||||||||||||
|
Revenue
|
$
|
263,200
|
$
|
261,853
|
$
|
285,559
|
$
|
306,102
|
$
|
325,022
|
||||||||||
|
Cost and expenses:
|
||||||||||||||||||||
|
Educational services and facilities
|
125,373
|
129,413
|
144,426
|
151,647
|
164,352
|
|||||||||||||||
|
Selling, general and administrative
|
141,244
|
138,779
|
148,447
|
151,797
|
168,441
|
|||||||||||||||
|
Loss (gain) on sale of assets
|
537
|
(1,623
|
)
|
233
|
1,738
|
(58
|
)
|
|||||||||||||
|
Impairment of goodwill and long-lived assets
|
-
|
-
|
21,367
|
216
|
40,836
|
|||||||||||||||
|
Total costs and expenses
|
267,154
|
266,569
|
314,473
|
305,398
|
373,571
|
|||||||||||||||
|
Operating (loss) income
|
(3,954
|
)
|
(4,716
|
)
|
(28,914
|
)
|
704
|
(48,549
|
)
|
|||||||||||
|
Other:
|
||||||||||||||||||||
|
Interest income
|
31
|
56
|
155
|
52
|
153
|
|||||||||||||||
|
Interest expense
|
(2,422
|
)
|
(7,098
|
)
|
(6,131
|
)
|
(8,015
|
)
|
(5,613
|
)
|
||||||||||
|
Other income
|
-
|
-
|
6,786
|
4,151
|
297
|
|||||||||||||||
|
Loss from continuing operations before income taxes
|
(6,345
|
)
|
(11,758
|
)
|
(28,104
|
)
|
(3,108
|
)
|
(53,712
|
)
|
||||||||||
|
Provision (benefit) for income taxes
|
200
|
(274
|
)
|
200
|
242
|
(4,225
|
)
|
|||||||||||||
|
Loss from continuing operations
|
(6,545
|
)
|
(11,484
|
)
|
(28,304
|
)
|
(3,350
|
)
|
(49,487
|
)
|
||||||||||
|
Loss from discontinued operations, net of income taxes
|
-
|
-
|
-
|
-
|
(6,646
|
)
|
||||||||||||||
|
Net loss
|
$
|
(6,545
|
)
|
$
|
(11,484
|
)
|
$
|
(28,304
|
)
|
$
|
(3,350
|
)
|
$
|
(56,133
|
)
|
|||||
|
Basic
|
||||||||||||||||||||
|
Loss per share from continuing operations
|
$
|
(0.27
|
)
|
$
|
(0.48
|
)
|
$
|
(1.21
|
)
|
$
|
(0.14
|
)
|
$
|
(2.17
|
)
|
|||||
|
Loss per share from discontinued operations
|
-
|
-
|
-
|
-
|
(0.29
|
)
|
||||||||||||||
|
Net loss per share
|
$
|
(0.27
|
)
|
$
|
(0.48
|
)
|
$
|
(1.21
|
)
|
$
|
(0.14
|
)
|
$
|
(2.46
|
)
|
|||||
|
Diluted
|
||||||||||||||||||||
|
Loss per share from continuing operations
|
$
|
(0.27
|
)
|
$
|
(0.48
|
)
|
$
|
(1.21
|
)
|
$
|
(0.14
|
)
|
$
|
(2.17
|
)
|
|||||
|
Loss per share from discontinued operations
|
-
|
-
|
-
|
-
|
(0.29
|
)
|
||||||||||||||
|
Net loss per share
|
$
|
(0.27
|
)
|
$
|
(0.48
|
)
|
$
|
(1.21
|
)
|
$
|
(0.14
|
)
|
$
|
(2.46
|
)
|
|||||
|
Weighted average number of common shares outstanding:
|
||||||||||||||||||||
|
Basic
|
24,423
|
23,906
|
23,453
|
23,167
|
22,814
|
|||||||||||||||
|
Diluted
|
24,423
|
23,906
|
23,453
|
23,167
|
22,814
|
|||||||||||||||
|
Other Data:
|
||||||||||||||||||||
|
Capital expenditures
|
$
|
4,697
|
$
|
4,755
|
$
|
3,596
|
$
|
2,218
|
$
|
7,472
|
||||||||||
|
Depreciation and amortization from continuing operations
|
8,421
|
8,702
|
11,066
|
14,506
|
19,201
|
|||||||||||||||
|
Number of campuses
|
22
|
23
|
28
|
31
|
31
|
|||||||||||||||
|
Average student population from continuing operations
|
10,591
|
10,772
|
11,864
|
12,981
|
14,010
|
|||||||||||||||
|
Cash dividend declared per common share
|
$
|
-
|
$
|
-
|
$
|
-
|
$
|
-
|
$
|
0.18
|
||||||||||
|
Balance Sheet Data, At December 31:
|
||||||||||||||||||||
|
Cash, cash equivalents and restricted cash
|
$
|
45,946
|
$
|
54,554
|
$
|
47,715
|
$
|
61,041
|
$
|
42,299
|
||||||||||
|
Working (deficit) capital (1)
|
(7,470
|
)
|
(2,766
|
)
|
(1,733
|
)
|
33,818
|
29,585
|
||||||||||||
|
Total assets
|
146,038
|
155,213
|
163,207
|
210,279
|
213,707
|
|||||||||||||||
|
Total debt (2)
|
48,769
|
52,593
|
41,957
|
58,224
|
65,181
|
|||||||||||||||
|
Total stockholders' equity
|
39,866
|
45,813
|
54,926
|
80,997
|
83,010
|
|||||||||||||||
All amounts have been restated to give effect to the HOPS segments which has been reclassified to continuing operations in 2016, 2015 and 2014.
(1) Working (deficit) capital is defined as current
assets less current liabilities.
(2) Total debt consists of long-term debt including
current portion, capital leases, auto loans and a finance obligation of $9.7 million for each of the years in the two-year period ended December 31, 2015 incurred in connection with a sale-leaseback transaction.
You should read the following discussion together with the “Selected Financial Data,” “Forward-Looking Statements” and the consolidated
financial statements and the related notes thereto included elsewhere in this Annual Report on Form 10-K. This discussion contains forward-looking statements that are based on management’s current expectations, estimates and projections about our
business and operations. Our actual results may differ materially from those currently anticipated and expressed in such forward-looking statements as a result of a number of factors, including those we discuss under “Risk Factors” and
“Forward-Looking Statements” and elsewhere in this Annual Report on Form 10-K.
GENERAL
Lincoln Educational Services Corporation and its subsidiaries (collectively, the “Company”,
“we”, “our” and “us”, as applicable) provide diversified career-oriented post-secondary education to recent high school graduates and working adults. The Company, which currently operates 22 schools in 14 states, offers programs in
automotive technology, skilled trades (which include HVAC, welding and computerized numerical control and electrical and electronic systems technology, among other programs), healthcare services (which include nursing, dental assistant and
medical administrative assistant, among other programs), hospitality services (which include culinary, therapeutic massage, cosmetology and aesthetics) and information technology (which includes information technology). The schools operate under
Lincoln Technical Institute, Lincoln College of Technology, Lincoln Culinary Institute, and Euphoria Institute of Beauty Arts and Sciences and associated brand names. Most of the campuses serve major metropolitan markets and each typically
offers courses in multiple areas of study. Five of the campuses are destination schools, which attract students from across the United States and, in some cases, from abroad. The Company’s other campuses primarily attract students from their
local communities and surrounding areas. All of the campuses are nationally or regionally accredited and are eligible to participate in federal financial aid programs by the U.S. Department of Education (the “DOE”) and applicable state education
agencies and accrediting commissions which allow students to apply for and access federal student loans as well as other forms of financial aid.
Our business is organized into three reportable business segments: (a) Transportation and Skilled Trades, (b) Healthcare and Other Professions (“HOPS”),
and (c) Transitional, which refers to businesses that have been or are currently being taught out.
On July 9, 2018, New England Institute of Technology at Palm Beach, Inc. (“NEIT”), a wholly-owned subsidiary of the Company, entered into a commercial contract (the “Sale Agreement”) with Elite Property Enterprise, LLC, pursuant to which NEIT agreed to sell to Elite Property Enterprise, LLC the real property owned by NEIT
located at 1126 53rd Court North, Mangonia Park, Palm Beach County, Florida and the improvements and certain personal property located thereon (the “Mangonia Park Property”), for a cash purchase price of $2,550,000. On August 23, 2018, NEIT,
consummated the sale of the Mangonia Park Property. At the closing, NEIT paid a real estate brokerage fee equal to 5% of the gross sales price and other customary closing costs and expenses. Pursuant to the provisions of the Company’s credit
facility with its lender, Sterling National Bank, the net cash proceeds of the sale of the Mangonia Park Property were deposited into an account with the lender to serve as additional security for loans and other financial accommodations provided
to the Company and its subsidiaries under the credit facility. In December 2018, the funds were used to repay the outstanding principal balance of the loans outstanding under the credit facility and such repayment permanently reduced the
revolving loan availability under the credit facility.
Effective December 31, 2018, the Company completed the teach-out and ceased operation of its Lincoln College of New England (“LCNE”) campus at Southington,
Connecticut. The decision to close the LCNE campus followed the previously reported placement of LCNE on probation by the college’s institutional accreditor, the New England Association of Schools and Colleges (“NEASC”). After evaluating
alternative options, the Company concluded that teaching out and closing the campus was in the best interest of the Company and its students. Subsequent to formalizing the LCNE closure decision in August 2018, the Company partnered with Goodwin
College, another NEASC- accredited institution in the region, to assist LCNE students to complete their programs of study. The majority of the LCNE students will continue their education at Goodwin College thereby limiting some of the Company’s
closing costs. The revenue, net loss and ending population of LCNE, as of December 31, 2017, were $8.4 million, $1.6 million and 397 students, respectively. The Company recorded net costs associated with the closure of the LCNE campus in 2018
of approximately $4.3 million, including (i) $1.6 million in connection with the termination of the LCNE campus lease, which is the net present value of the remaining obligation, to be paid in equal monthly installments through January 2020, (ii)
approximately $700,000 of severance payments and (iii) $2.0 million of additional operating losses related to no longer enrolling additional students during 2018. LCNE results, previously reported in the HOPS segment, are now included in the
Transitional segment as of December 31, 2018.
As of December 31, 2018, we had 10,525 students enrolled at 22 campuses.
Our campuses, a majority of which serve major metropolitan markets, are located throughout the United States. Five of our campuses are destination schools,
which attract students from across the United States and, in some cases, from abroad. Our other campuses primarily attract students from their local communities and surrounding areas. All of our schools are either nationally or regionally
accredited and are eligible to participate in federal financial aid programs.
Our revenues consist primarily of student tuition and fees derived from the programs we offer. Our revenues are reduced by scholarships granted to our
students. We recognize revenues from tuition and one-time fees, such as application fees, ratably over the length of a program, including internships or externships that take place prior to graduation. We also earn revenues from our bookstores,
dormitories, cafeterias and contract training services. These non-tuition revenues are recognized upon delivery of goods or as services are performed and represent less than 10% of our revenues.
Our revenues are directly dependent on the average number of students enrolled in our schools and the courses in which they are enrolled. Our average
enrollment is impacted by the number of new students starting, re-entering, graduating and withdrawing from our schools. In addition, our diploma/certificate programs range from 19 to 136 weeks, our associate’s degree programs range from 64 to 98
weeks, and students attend classes for different amounts of time per week depending on the school and program in which they are enrolled. Because we start new students every month, our total student population changes monthly. The number of
students enrolling or re-entering our programs each month is driven by the demand for our programs, the effectiveness of our marketing and advertising, the availability of financial aid and other sources of funding, the number of recent high
school graduates, the job market and seasonality. Our retention and graduation rates are influenced by the quality and commitment of our teachers and student services personnel, the effectiveness of our programs, the placement rate and success of
our graduates and the availability of financial aid. Although similar courses have comparable tuition rates, the tuition rates vary among our numerous programs.
The majority of students enrolled at our schools rely on funds received under various government-sponsored student financial aid programs to pay a
substantial portion of their tuition and other education-related expenses. The largest of these programs are Title IV Programs which represented approximately 78% of our revenue on a cash basis while the remainder is primarily derived from state
grants and cash payments made by students during both 2018 and 2017. The Higher Education Act of 1965, as amended (the “HEA”) requires institutions to use the cash basis of accounting when determining its compliance with the 90/10 rule.
We extend credit for tuition and fees to many of our students that attend our campuses. Our credit risk is mitigated through the students’ participation in
federally funded financial aid programs unless students withdraw prior to the receipt by us of Title IV Program funds for those students. Under Title IV Programs, the government funds a certain portion of a student’s tuition, with the remainder,
referred to as “the gap,” financed by the students themselves under private party loans, including credit extended by us. The gap amount has continued to increase over the last several years as we have raised tuition on average for the last
several years by 2-3% per year and restructured certain programs to reduce the amount of financial aid available to students, while funds received from Title IV Programs increased at lower rates.
The additional financing that we are providing to students may expose us to greater credit risk and can impact our liquidity. However, we believe that
these risks are somewhat mitigated due to the following:
| · |
Our internal financing is provided to students only after all other funding resources have been exhausted; thus, by the time this funding is available, students have
completed approximately two-thirds of their curriculum and are more likely to graduate;
|
| · |
Funding for students who interrupt their education is typically covered by Title IV funds as long as they have been properly packaged for financial aid; and
|
| · |
Creditworthy criteria to demonstrate a student’s ability to pay.
|
The operating expenses associated with an existing school do not increase or decrease proportionally as the number of students enrolled at the school
increases or decreases. We categorize our operating expenses as:
| · |
Educational services and facilities. Major components of educational services and facilities expenses include faculty compensation and benefits, expenses of books and tools, facility rent, maintenance, utilities, depreciation and amortization of
property and equipment used in the provision of education services and other costs directly associated with teaching our programs excluding student services which is included in selling, general and administrative expenses.
|
| · |
Selling, general and administrative. Selling, general and administrative expenses include compensation and benefits of employees who are not directly associated with the provision of educational services (such as executive management
and school management, finance and central accounting, legal, human resources and business development), marketing and student enrollment expenses (including compensation and benefits of personnel employed in sales and marketing and
student admissions), costs to develop curriculum, costs of professional services, bad debt expense, rent for our corporate headquarters, depreciation and amortization of property and equipment that is not used in the provision of
educational services and other costs that are incidental to our operations. Selling, general and administrative expenses also includes the cost of all student services including financial aid and career services. All marketing and
student enrollment expenses are recognized in the period incurred.
|
CRITICAL ACCOUNTING POLICIES AND ESTIMATES
Our discussions of our financial condition and results of operations are based upon our consolidated financial statements, which have been prepared in
accordance with accounting principles generally accepted in the United States of America, or GAAP. The preparation of financial statements in conformity with GAAP requires management to make estimates and assumptions that affect the reported
amounts of assets and liabilities 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 period. On an ongoing basis, we evaluate our
estimates and assumptions, including those related to revenue recognition, bad debts, fixed assets, goodwill and other intangible assets, income taxes and certain accruals. Actual results could differ from those estimates. The critical accounting
policies discussed herein are not intended to be a comprehensive list of all of our accounting policies. In many cases, the accounting treatment of a particular transaction is specifically dictated by GAAP and does not result in significant
management judgment in the application of such principles. We believe that the following accounting policies are most critical to us in that they represent the primary areas where financial information is subject to the application of
management's estimates, assumptions and judgment in the preparation of our consolidated financial statements.
Revenue recognition.
Prior to adoption of ASU 2014-09
Revenues are derived primarily from programs taught at our schools. Tuition revenues, textbook sales and one-time fees, such as nonrefundable application
fees and course material fees, are recognized on a straight-line basis over the length of the applicable program as the student proceeds through the program, which is the period of time from a student’s start date through his or her graduation
date (including internships or externships, if any, occurring prior to graduation), and we complete the performance of teaching the student entitling us to the revenue. Other revenues, such as tool sales and contract training revenues, are
recognized as goods are delivered or training completed. On an individual student basis, tuition earned in excess of cash received is recorded as accounts receivable, and cash received in excess of tuition earned is recorded as unearned tuition.
We evaluate whether collectability of revenue is reasonably assured prior to the student commencing a program by attending class and reassess collectability
of tuition and fees when a student withdraws from a course. We calculate the amount to be returned under Title IV and its stated refund policy to determine eligible charges and, if there is a balance due from the student after this calculation,
we expect payment from the student. We have a process to pursue uncollected accounts whereby, based upon the student’s financial means and ability to pay, a payment plan is established with the student to ensure that collectability is
reasonable. We continuously monitor our historical collections to identify potential trends that may impact our determination that collectability of receivables for withdrawn students is realizable. If a student withdraws from a program prior
to a specified date, any paid but unearned tuition is refunded. Refunds are calculated and paid in accordance with federal, state and accrediting agency standards. Generally, the amount to be refunded to a student is calculated based upon the
period of time the student has attended classes and the amount of tuition and fees paid by the student as of his or her withdrawal date. These refunds typically reduce deferred tuition revenue and cash on our consolidated balance sheets as we
generally do not recognize tuition revenue in our consolidated statements of income (loss) until the related refund provisions have lapsed. Based on the application of our refund policies, we may be entitled to incremental revenue on the day the
student withdraws from one of our schools. We record revenue for students who withdraw from one of our schools when payment is received because collectability on an individual student basis is not reasonably assured.
After adoption of ASU 2014-09
On January 1, 2018, we adopted the new standard on revenue recognition, ASU 2014-09, using the modified retrospective approach of ASU 2016-10. The adoption
of the guidance in ASU 2014-09 as amended by ASU 2016-10 did not have a material impact on the measurement or recognition of revenue in any prior or current reporting periods and there was no adjustment to retained earnings. The core principle
of the new standard is that a company should recognize revenue to depict the transfer of promised goods or services to students in an amount that reflects the consideration to which the company expects to be entitled in exchange for such goods or
services.
Substantially all of our revenues are considered to be revenues from contracts with
students. The related accounts receivable balances are recorded in our balance sheets as student accounts receivable. We do not have significant revenue recognized from performance obligations that were satisfied in prior periods, and
we do not have any transaction price allocated to unsatisfied performance obligations other than in our unearned tuition. We record revenue for students who withdraw from one of our
schools only to the extent that it is probable that a significant reversal in the amount of cumulative revenue recognized will not occur. Unearned tuition represents contract liabilities primarily related to our tuition revenue. We
have elected not to provide disclosure about transaction prices allocated to unsatisfied performance obligations if contract durations are less than one-year, or if we have the right to consideration from a student in an amount that corresponds
directly with the value provided to the student for performance obligations completed to date. We have assessed the costs incurred to obtain a contract with a student and determined them to be immaterial.
Allowance for uncollectible accounts. Based
upon experience and judgment, we establish an allowance for uncollectible accounts with respect to tuition receivables. We use an internal group of collectors in our collection efforts. In establishing our allowance for uncollectible accounts, we
consider, among other things, current and expected economic conditions, a student's status (in-school or out-of-school), whether or not a student is currently making payments, and overall collection history. Changes in trends in any of these
areas may impact the allowance for uncollectible accounts. The receivables balances of withdrawn students with delinquent obligations are reserved for based on our collection history. Although we believe that our reserves are adequate, if the
financial condition of our students deteriorates, resulting in an impairment of their ability to make payments, additional allowances may be necessary, which will result in increased selling, general and administrative expenses in the period such
determination is made.
Our bad debt expense as a percentage of revenues for the years ended December 31, 2018, 2017 and 2016 was 6.7%, 5.2% and 5.1%, respectively. Our exposure to
changes in our bad debt expense could impact our operations. A 1% increase in our bad debt expense as a percentage of revenues for the years ended December 31, 2018, 2017 and 2016 would have resulted in an increase in bad debt expense of $2.6
million, $2.6 million and $2.9 million, respectively.
We do not believe that there is any direct correlation between tuition increases, the credit we extend to students and our loan commitments. Our loan
commitments to our students are made on a student-by-student basis and are predominantly a function of the specific student’s financial condition. We only extend credit to the extent there is a financing gap between the tuition and fees charged
for the program and the amount of grants, loans and parental loans each student receives. Each student’s funding requirements are unique. Factors that determine the amount of aid available to a student include whether they are dependent or
independent students, Pell grants awarded, Federal Direct loans awarded, Plus loans awarded to parents and the student’s personal resources and family contributions. As a result, it is extremely difficult to predict the number of students that
will need us to extend credit to them. Our tuition increases have averaged 2-3% annually and have not meaningfully impacted overall funding requirements, since the amount of financial aid funding available to students in recent years has
increased at greater rates than our tuition increases.
Because a substantial portion of our revenues are derived from Title IV Programs, any legislative or regulatory action that significantly reduces the
funding available under Title IV Programs or the ability of our students or schools to participate in Title IV Programs could have a material effect on the realizability of our receivables.
Goodwill. We test our goodwill for
impairment annually, or whenever events or changes in circumstances indicate an impairment may have occurred, by comparing its fair value to its carrying value. Impairment may result from, among other things, deterioration in the performance of
the acquired business, adverse market conditions, adverse changes in applicable laws or regulations, including changes that restrict the activities of the acquired business, and a variety of other circumstances. If we determine that impairment
has occurred, we are required to record a write-down of the carrying value and charge the impairment as an operating expense in the period the determination is made. In evaluating the recoverability of the carrying value of goodwill and other
indefinite-lived intangible assets, we must make assumptions regarding estimated future cash flows and other factors to determine the fair value of the acquired assets. Changes in strategy or market conditions could significantly impact these
judgments in the future and require an adjustment to the recorded balances.
Goodwill represents a significant portion of our total assets. As of December 31, 2018, goodwill was approximately $14.5 million, or 10.0%, of our total
assets, which was flat from approximately $14.5 million, or 9.4%, of our total assets at December 31, 2017.
When we test goodwill balances for impairment, we estimate the fair value of each of our reporting units based on projected future operating results and
cash flows, market assumptions and/or comparative market multiple methods. Determining fair value requires significant estimates and assumptions based on an evaluation of a number of factors, such as marketplace participants, relative market
share, new student interest, student retention, future expansion or contraction expectations, amount and timing of future cash flows and the discount rate applied to the cash flows. Projected future operating results and cash flows used for
valuation purposes do reflect improvements relative to recent historical periods with respect to, among other things, modest revenue growth and operating margins. Although we believe our projected future operating results and cash flows and
related estimates regarding fair values are based on reasonable assumptions, historically projected operating results and cash flows have not always been achieved. The failure of one of our reporting units to achieve projected operating results
and cash flows in the near term or long term may reduce the estimated fair value of the reporting unit below its carrying value and result in the recognition of a goodwill impairment charge. Significant management judgment is necessary to
evaluate the impact of operating and macroeconomic changes and to estimate future cash flows. Assumptions used in our impairment evaluations, such as forecasted growth rates and our cost of capital, are based on the best available market
information and are consistent with our internal forecasts and operating plans. In addition to cash flow estimates, our valuations are sensitive to the rate used to discount cash flows and future growth assumptions.
At December 31, 2018 and December 31, 2017, we conducted our annual test for goodwill impairment and determined we did not have an impairment. At December
31, 2016, we conducted our annual test for goodwill impairment and determined we had an impairment of $9.9 million.
Stock-based compensation. We currently
account for stock-based employee compensation arrangements by using the Black-Scholes valuation model and utilize straight-line amortization of compensation expense over the requisite service period of the grant. We make an estimate of expected
forfeitures at the time options are granted.
We measure the value of service and performance-based restricted stock on the fair value of a share of common stock on the date of the grant. We amortize
the fair value of service-based restricted stock utilizing straight-line amortization of compensation expense over the requisite service period of the grant.
We amortize the fair value of the performance-based restricted stock based on determination of the probable outcome of the performance condition. If the
performance condition is expected to be met, then we amortize the fair value of the number of shares expected to vest utilizing the straight-line basis over the requisite performance period of the grant. However, if the associated performance
condition is not expected to be met, then we do not recognize the stock-based compensation expense.
Income taxes. We account for income taxes in accordance with ASC Topic 740, “Income Taxes” (“ASC 740”). This statement
requires an asset and a liability approach for measuring deferred taxes based on temporary differences between the financial statement and tax bases of assets and liabilities existing at each balance sheet date using enacted tax rates for years
in which taxes are expected to be paid or recovered.
In accordance with ASC 740, we assess our deferred tax asset to determine whether all or any portion of the asset is more likely than not unrealizable. A
valuation allowance is required to be established or maintained when, based on currently available information, it is more likely than not that all or a portion of a deferred tax asset will not be realized. In accordance with ASC 740, our
assessment considers whether there has been sufficient income in recent years and whether sufficient income is expected in future years in order to utilize the deferred tax asset. In evaluating the realizability of deferred income tax assets we
considered, among other things, historical levels of income, expected future income, the expected timing of the reversals of existing temporary reporting differences, and the expected impact of tax planning strategies that may be implemented to
prevent the potential loss of future income tax benefits. Significant judgment is required in determining the future tax consequences of events that have been recognized in our consolidated financial statements and/or tax returns. Differences
between anticipated and actual outcomes of these future tax consequences could have a material impact on our consolidated financial position or results of operations. Changes in, among other things, income tax legislation, statutory income tax
rates, or future income levels could materially impact our valuation of income tax assets and liabilities and could cause our income tax provision to vary significantly among financial reporting periods.
We recognize accrued interest and penalties related to unrecognized tax benefits in income tax expense. During the years ended December 31, 2018 and 2017,
we did not record any interest and penalties expense associated with uncertain tax positions.
On December 22, 2017, the U.S. government enacted comprehensive tax legislation known as the Tax Cuts and Jobs Act (the “Tax Act”). The Tax Act establishes
new tax laws that took effect in 2018, including, but not limited to (1) reduction of the U.S. federal corporate tax rate from a maximum of 35% to 21%; (2) elimination of the corporate alternative minimum tax (AMT); (3) a new limitation on
deductible interest expense; (4) the repeal of the domestic production activity deduction; (5) limitations on the deductibility of certain executive compensation; and (6) limitation on net operating losses (NOLs) generated after December 31,
2017, to 80% of taxable income. In addition, certain changes were made to the bonus depreciation rules that impacted fiscal year 2017.
In accordance with SAB 118, we completed our analysis of the Tax Act resulting in no material adjustments from the provisional amounts recorded during the
prior year. The Tax Act did not have a material impact on our financial statements because we are under a full valuation allowance.
Results of Continuing Operations for the Three Years Ended December 31, 2018
The following table sets forth selected consolidated statements of continuing operations data as a percentage of revenues for each of the periods indicated:
|
Year Ended December 31,
|
||||||||||||
|
2018
|
2017
|
2016
|
||||||||||
|
Revenue
|
100.0
|
%
|
100.0
|
%
|
100.0
|
%
|
||||||
|
Costs and expenses:
|
||||||||||||
|
Educational services and facilities
|
47.6
|
%
|
49.4
|
%
|
50.6
|
%
|
||||||
|
Selling, general and administrative
|
53.7
|
%
|
53.0
|
%
|
52.0
|
%
|
||||||
|
(Gain) loss on sale of assets
|
0.2
|
%
|
-0.6
|
%
|
0.1
|
%
|
||||||
|
Impairment of goodwill and long-lived assets
|
0.0
|
%
|
0.0
|
%
|
7.5
|
%
|
||||||
|
Total costs and expenses
|
101.5
|
%
|
101.8
|
%
|
110.2
|
%
|
||||||
|
Operating (loss) income
|
-1.5
|
%
|
-1.8
|
%
|
-10.2
|
%
|
||||||
|
Interest expense, net
|
-0.9
|
%
|
-2.7
|
%
|
-2.0
|
%
|
||||||
|
Other income
|
0.0
|
%
|
0.0
|
%
|
2.4
|
%
|
||||||
|
Loss from operations before income taxes
|
-2.4
|
%
|
-4.5
|
%
|
-9.8
|
%
|
||||||
|
Provision (benefit) for income taxes
|
0.1
|
%
|
-0.1
|
%
|
0.1
|
%
|
||||||
|
Net loss
|
-2.5
|
%
|
-4.4
|
%
|
-9.9
|
%
|
||||||
Year Ended December 31, 2018 Compared to Year Ended December 31, 2017
Consolidated Results of Operations
Revenue. Revenue increased $1.3 million to
$263.2 million for the year ended December 31, 2018 from $261.9 million in the prior year comparable period. The revenue increase was a result of five consecutive quarters of start growth which drove a 9.5% and 1.2% increase in average
population in both our Healthcare and Other Professions segment and Transportation and Skilled Trades segment. Excluding our Transitional segment (which represents campuses that have closed) which had revenue of $5.8 million and $16.9 million
during the years ended December 31, 2018 and 2017, respectively, revenue would have increased by $12.4 million, or 5.1%, year over year. The increase in revenue was despite student population at the beginning of the year being down 77 students
compared to the prior year.
Total student starts increased 5.6% for the year ended December 31, 2018 as compared to the prior year comparable period. Excluding the Transitional
segment, student starts would have increased 7.7% year over year. We continue to attribute this growth to our investments in marketing, enhanced high school programs and improved admissions process driving more consistency from lead to start.
For a general discussion of trends in our student enrollment, see “Seasonality and Outlook” below.
Educational services and facilities expense.
Our educational services and facilities expense decreased $4.0 million, or 3.1%, to $125.4 million for the year ended December 31, 2018 from $129.4 million in the prior year comparable period. The expense reductions were primarily due to the
Transitional segment, which accounted for $7.6 million in cost savings, partially offset by $2.1 million in additional books and tools expense and $1.2 million in additional instructional expenses. The increase in books and tools expense and
instructional expense was a direct correlation between providing laptops for a growing number of program offerings and an increased student population year over year.
Educational services and facilities expenses, as a percentage of revenue, decreased to 47.6% for the year ended December 31, 2018 from 49.4% in the prior
year comparable period.
Selling, general and administrative expense.
Our selling general and administrative expense increased $2.5 million, or 1.8%, to $141.2 million for the year ended December 31, 2018 from $138.8 million in the prior year comparable period. Increased costs were driven by $3.8 million of
additional bad debt expense and $2.9 million of marketing investments. Partially offsetting the increased expenses were cost savings of $4.4 million derived from the Transitional segment.
Bad debt expense has increased mainly due to larger accounts receivable balances
driven by higher population and thus higher revenue of $12.4 million, or 5.1%, excluding the Transitional segment. Also, we are seeing more students graduating with accounts receivable balances as a result of our institutional loan program
which began offering the option to defer all payments post-graduation. This change was effective approximately two years ago. Furthermore, there has been a shift in our program mix during the year from longer duration programs to shorter more
condensed programs. The shifts in program mix have impacted disbursement of Title IV funds and, as a result, has contributed to a higher accounts receivable balance year over year.
Marketing investments during the year ended December 31, 2018 were approximately $2.9 million higher than the prior year comparable period. While marketing
investments have increased during 2018 as expected, the cost to obtain prospective students has remained essentially flat when compared to the prior year. Marketing dollars are providing a return on investment and are expected to yield start
growth over the next several quarters.
Selling general and administrative expenses, as a percentage of revenue, increased to 53.7% for the year ended December 31, 2018 from 53% in the prior year
comparable period.
Bad debt expense as a percentage of revenue was 6.7% for the year ended December 31, 2018, compared to 5.2% for the same period in 2017.
As of December 31, 2018, we had total outstanding loan commitments to our students of
$63.1 million, as compared to $51.9 million at December 31, 2017. The increase was due to higher student population and thus an increased number of students electing to take our institutional loans to finance their education costs that are not
covered by a third party or financial aid. Despite the growth in student population, the overall percentage of starts with institutional loans in 2018 remained relatively consistent with the prior year. Our institutional loans constitute loans
of last resort, available to assist our most financially challenged students.
(Loss)/gain on sale of fixed assets. Loss on sale of assets
increased to $0.5 million for the year ended December 31, 2018, from a gain on sale of asset of $1.6 million in the prior year comparable period. The $2.1 million increase was primarily driven by a $0.4 million loss on the sale of the Mangonia
Park, Florida property on August 23, 2018 and a $1.5 million gain in the prior year resulting from the sale of the West Palm Beach, Florida property on August 14, 2017.
Net interest expense. Net interest expense for the year ended December 31, 2018 decreased by $4.7 million, or 66%, to $2.4 million from $7.0 million in the prior year comparable period. The decrease was the result
of the termination of our previous term loan which had significantly higher interest rates and the related fees and expenses associated with its early termination, which occurred on March 31, 2017. Additional interest expense was also incurred
in the prior year in relation to an $8.0 million bridge loan secured by our West Palm Beach, Florida property, which was repaid in August 2017.
Income taxes. Our provision for income taxes
was $0.2 million, or 3.2% of pretax loss, for the year ended December 31, 2018, compared to a benefit for income taxes of $0.3 million, or 2.3% of pretax loss, in the prior year comparable period.
No federal or state income tax benefit was recognized for the current period loss due to the recognition of a full valuation allowance. Income tax expense
resulted from various minimal state tax expenses.
In accordance with SAB 118, we completed our analysis of the Tax Act resulting in no material adjustments from the provisional amounts recorded during the
prior year. The Tax Act did not have a material impact on our financial statements because we are under a full valuation allowance.
Year Ended December 31, 2017 Compared to Year Ended December 31, 2016
Consolidated Results of Operations
Revenue. Revenue decreased by $23.7 million, or 8.3%, to $261.9 million for the year ended December 31, 2017 from $285.6 million for the year ended December 31, 2016. The decrease in revenue is primarily
attributable to the campuses in our Transitional segment, which have closed during 2017. This segment accounted for approximately $23.5 million, or 99.2% of the revenue decline.
Total student starts decreased by 10.8% to approximately 11,800 from 13,200 for the year ended December 31, 2017 as compared to the prior year comparable
period. The suspension of new student starts for the Transitional segment accounted for approximately 80% of the decline. The Transportation and Skilled Trades segment starts were slightly down 1.6% and the HOPS segment starts increased by
3.7% for the year ended December 31, 2017 as compared to the prior year comparable period.
For a general discussion of trends in our student enrollment, see “Seasonality and Outlook” below.
Educational services and
facilities expense. Our educational services and facilities expense decreased by $15 million, or 10.4%, to $129.4 million for the year ended December 31, 2017 from $144.4 million in the prior year comparable period. The decrease is
mainly due to the Transitional segment, which accounted for approximately $14 million, or 93.4% of the decrease. The remainder of the $1 million decrease was primarily due to a decrease in facilities expenses slightly offset by increased
instructional expenses. Facilities expense decreased due to a decline in depreciation expense of approximately $1.5 million due to fully depreciated assets. Partially, offsetting the decreases are $0.5 million in increased books and tools
costs resulting from the addition of laptops for an increasing number of program offerings in the HOPS segment. Educational services and facilities expenses, as a percentage of revenue, decreased to 49.4% for the year ended December 31, 2017
from 50.6% in the prior year comparable period.
Selling, general and administrative expense. Our selling, general and administrative expense decreased by $9.7 million, or 6.5%, to $138.8 million for the year ended December 31, 2017 from $148.5 million in the prior year
comparable period. The decrease was primarily due to the Transitional segment, which accounted for approximately $13.4 million in cost reductions. Partially offsetting the cost reductions are $2.8 million in additional sales and
marketing expense and $1 million in increased administrative expense.
The $2.8 million increase in sales and marketing expense was the result of strategic marketing spending in an effort to expand our reach in the adult
market. The additional spending resulted in an increase in adult starts year over year.
Administrative expense increased primarily due to a $1.2 million increase in bad debt expense and $1.6 million in closed school expenses, offset by $1.3
million in reduced salaries and benefits expense.
The increase in closed school expenses related to the Hartford, Connecticut campus, which closed on December 31, 2016 and was included in the Transitional
segment in 2016, but has an apartment lease for student dorms which ends in September 2019.
Bad debt expense as a percentage of revenue was 5.2% for the year ended December 31, 2017, compared to 5.1% for the same period in 2016. The increase in
bad debt expense was the result of higher student receivable accounts, primarily driven by lower scholarship recognition and a higher number of institutional loans. During 2017, we made modifications to the institutional loan program which
expanded the program’s eligibility base and lessened the student’s affordability challenge. In addition, we experienced higher account write-offs and timing of Title IV funds receipts, which contributed to the increase in bad debt expense.
As of December 31, 2017, we had total outstanding loan commitments to our students of $51.9
million, as compared to $40.0 million at December 31, 2016. The increase was due to a higher number of students packaged with institutional loans as a result of 2017 modifications to the program, which expanded the eligibility base and
lessened the affordability obstacle.
Gain on sale of fixed assets. Gain on sale
of fixed assets increased by $1.8 million primarily due to the sale of two real properties located in West Palm Beach, Florida. The sale occurred on August 14, 2017 and resulted in a gain of $1.5 million.
Impairment of goodwill and long-lived assets. We tested our goodwill and long-lived assets and determined that as of December 31, 2017 no impairments existed. The fair value of the
Company’s reporting units were determined using Level 3 inputs included in its multiple of earnings and discounted cash flow approach. At December 31, 2016, we tested our goodwill and long-lived assets and determined that there was sufficient
evidence to conclude that an impairment existed, which resulted in a pre-tax, non-cash charge of $21.4 million.
Net interest expense. For the year ended December 31, 2017, our net interest expense increased by $1.1 million. The increase was mainly attributable to a $2.2 million non-cash write-off of previously capitalized
deferred financing fees; and a $1.8 million early termination fee. These costs were incurred at March 31, 2017 when the Company entered into a revolving credit facility with Sterling National Bank. Partially offsetting these increases were
reductions in interest expense resulting from lower debt outstanding in combination with more favorable terms under the current credit facility compared to the terms of a prior term loan facility provided to the Company by a former lender.
Income taxes. Our benefit for income taxes
was $0.3 million, or 2.3% of pretax loss, for the year ended December 31, 2017, compared to a provision for income taxes of $0.2 million, or 0.7% of pretax loss, in the prior year comparable period.
On December 22, 2017, the U.S. government enacted comprehensive tax legislation commonly referred to as the Tax Cuts and Jobs Act (the “Tax Act”). The Tax
Cuts and Jobs Act, among other things, eliminated the corporate alternative minimum tax (the “AMT”) and changed how existing AMT credits can be realized either to offset regular tax liability or to be refunded. As a result of this change, the
Company released the valuation allowance against AMT credits deferred tax asset and recorded a deferred tax provision benefit of $0.4 million. Offsetting this benefit was $0.1 million of income tax expense from various minimal state tax
expenses.
At December 31, 2017, we had not completed our analysis of the tax effects of enactment of the Tax Act; however, we made a reasonable estimate of the
effects of the Tax Act’s change in the federal rate and revalued our deferred tax assets based on the rates at which they are expected to reverse in the future, which is generally the new 21% federal corporate tax rate plus applicable state tax
rate. Based on our initial analysis of the impact, we recorded a decrease related to deferred tax assets of $17.7 million. The expense is offset with a corresponding release of valuation allowance.
No other federal or state income tax benefit was recognized for the fiscal year 2017 loss due to the recognition of a full valuation allowance.
Segment Results of Operations
The for-profit education industry has been impacted by numerous regulatory changes, a changing economy and an onslaught of negative media attention. As a
result of these challenges, student populations have declined and operating costs have increased. Over the past few years, the Company has closed over ten locations and exited its online business. In 2017, the Company completed the teach-out of
its Center City Philadelphia, Pennsylvania; Northeast Philadelphia, Pennsylvania; West Palm Beach, Florida; Brockton, Massachusetts; and Lowell, Massachusetts schools. All of these schools were previously included in our HOPS segment and as of
December 31, 2017, they have all been closed.
On August 20, 2018, the Company decided to teach-out the LCNE campus at Southington, Connecticut. LCNE results, which was previously reported in the HOPS
segment, is now included in the Transitional segment as of December 31, 2018. The Company completed the teach-out and exited the LCNE campus on December 31, 2018.
In the past, we offered any combination of programs at any campus. We have shifted our focus to program offerings that create greater differentiation among
campuses and promote attainment of excellence to attract more students and gain market share. Also, strategically, we began offering continuing education training to select employers who hire our graduates and this is best achieved at campuses
focused on the applicable profession.
As a result of the regulatory environment, market forces and our strategic decisions, we now operate our business in three reportable segments: (a) the
Transportation and Skilled Trades segment; (b) the Healthcare and Other Professions segment; and (c) the Transitional segment. Our reportable segments have been determined based on a method by which we now evaluate performance and allocate
resources. Each reportable segment represents a group of post-secondary education providers that offer a variety of degree and non-degree academic programs. These segments are organized by key market segments to enhance operational alignment
within each segment to more effectively execute our strategic plan. Each of the Company’s schools is a reporting unit and an operating segment. Our operating segments are described below.
Transportation and Skilled Trades – The Transportation and Skilled Trades segment offers academic programs mainly in the career-oriented disciplines of transportation and skilled
trades (e.g. automotive, diesel, HVAC, welding and manufacturing).
Healthcare and Other Professions – The
Healthcare and Other Professions segment offers academic programs in the career-oriented disciplines of health sciences, hospitality and business and information technology (e.g. dental assistant, medical assistant, practical nursing, culinary
arts and cosmetology).
Transitional – The Transitional segment refers
to campuses that are being taught-out and closed and operations that are being phased out. The schools in the Transitional segment employ a gradual teach-out process that enables the schools to continue to operate to allow their current students
to complete their course of study. These schools are no longer enrolling new students.
The Company continually evaluates each campus for profitability, earning potential, and customer satisfaction. This evaluation takes several factors into
consideration, including the campus’s geographic location and program offerings, as well as skillsets required of our students by their potential employers. The purpose of this evaluation is to ensure that our programs provide our students with
the best possible opportunity to succeed in the marketplace with the goals of attracting more students to our programs and, ultimately, to provide our shareholders with the maximum return on their investment. Campuses in the Transitional segment
have been subject to this process and have been strategically identified for closure.
We evaluate segment performance based on operating results. Adjustments to reconcile segment results to consolidated results are included under the caption
“Corporate,” which primarily includes unallocated corporate activity.
For all prior periods presented, the Company reclassified its Marietta, Georgia campus from the HOPS segment to the Transportation and Skilled Trades
segment. This reclassification occurred to address how the Company evaluates performance and allocates resources and was approved by the Company’s Board of Directors.
The following table present results for our three reportable segments for the years ended December 31, 2018 and 2017:
|
Twelve Months Ended December 31,
|
||||||||||||
|
2018
|
2017
|
% Change
|
||||||||||
|
Revenue:
|
||||||||||||
|
Transportation and Skilled Trades
|
$
|
185,263
|
$
|
181,328
|
2.2
|
%
|
||||||
|
Healthcare and Other Professions
|
72,135
|
63,641
|
13.3
|
%
|
||||||||
|
Transitional
|
5,802
|
16,884
|
-65.6
|
%
|
||||||||
|
Total
|
$
|
263,200
|
$
|
261,853
|
0.5
|
%
|
||||||
|
Operating
Income (Loss):
|
||||||||||||
|
Transportation and Skilled Trades
|
$
|
17,661
|
$
|
17,795
|
-0.8
|
%
|
||||||
|
Healthcare and Other Professions
|
6,469
|
3,937
|
64.3
|
%
|
||||||||
|
Transitional
|
(5,994
|
)
|
(6,926
|
)
|
13.5
|
%
|
||||||
|
Corporate
|
(22,090
|
)
|
(19,522
|
)
|
-13.2
|
%
|
||||||
|
Total
|
$
|
(3,954
|
)
|
$
|
(4,716
|
)
|
16.2
|
%
|
||||
|
Starts:
|
||||||||||||
|
Transportation and Skilled Trades
|
8,294
|
7,763
|
6.8
|
%
|
||||||||
|
Healthcare and Other Professions
|
4,023
|
3,673
|
9.5
|
%
|
||||||||
|
Transitional
|
140
|
363
|
-61.4
|
%
|
||||||||
|
Total
|
12,457
|
11,799
|
5.6
|
%
|
||||||||
|
Average
Population:
|
||||||||||||
|
Transportation and Skilled Trades
|
7,042
|
6,961
|
1.2
|
%
|
||||||||
|
Healthcare and Other Professions
|
3,312
|
3,024
|
9.5
|
%
|
||||||||
|
Transitional
|
237
|
787
|
-69.9
|
%
|
||||||||
|
Total
|
10,591
|
10,772
|
-1.7
|
%
|
||||||||
|
End of
Period Population:
|
||||||||||||
|
Transportation and Skilled Trades
|
6,988
|
6,626
|
5.5
|
%
|
||||||||
|
Healthcare and Other Professions
|
3,537
|
3,136
|
12.8
|
%
|
||||||||
|
Transitional
|
-
|
397
|
-100.0
|
%
|
||||||||
|
Total
|
10,525
|
10,159
|
3.6
|
%
|
||||||||
Year Ended December 31, 2018 Compared to Year Ended December 31, 2017
Transportation and Skilled Trades
Student start results increased 6.8% to 8,294 for the year ended December 31, 2018 from 7,763 in the prior year comparable period.
Operating income remained essentially flat at $17.7 million and $17.8 million for the years ended December 31, 2018 and 2017 respectively. Activity during
the year was mainly driven by the following factors:
| · |
Revenue increased by $3.9 million to $185.3 million for the year ended December 31, 2018, as compared to $181.3 million in the prior year comparable period. The increase
in revenue was primarily driven by five consecutive quarters of start growth, most notably a 6.8% increase in student starts, during the year ended December 31, 2018 in addition to a 1% increase in average revenue per student
primarily due to tuition rate increases partially offset by changes in program mix from longer to shorter programs. The increase in revenue was despite starting the year with 278 fewer students than that of the prior year.
|
| · |
Educational services and facilities expense increased by $1.0 million, or 1.1%, to $85.4 million for the year ended December 31, 2018 from $84.4 million in the prior year
comparable period. This increase was driven by $1.2 million in additional books and tools expense partially. Increased books and tools expense was a collaboration between a growing number of program offerings requiring laptops in
addition to a growing student population. Reductions in facilities expense was a result of fully depreciated assets.
|
| · |
Selling general and administrative expense increased by $3.0 million, primarily resulting from a $2.4 million increase in bad debt expense in addition to a $1.4 million
increase in marketing investment as detailed in the consolidated results of operations. Partially offsetting the costs were savings of $1.2 million in salaries and benefits expense resulting from operational efficiencies.
|
Healthcare and Other Professions
Student start results increased 9.5% to 4,023 for the year ended December 31, 2018 from 3,673 in the prior year comparable period.
Operating income increased 64.3% to $6.5 million for the year ended December 31, 2018 from $3.9 million in the prior year comparable period. The $2.5
million change was mainly driven by the following factors:
| · |
Revenue increased $8.5 million, or 13.3%, to $72.1 million for the year ended December 31, 2018 as compared to $63.6 million in the prior year comparable period. The
increase in revenue was driven by a 9.5% increase in average student population in combination with a 3.4% increase in average revenue per student resulting from tuition increases.
|
| · |
Educational services and facilities expense increased by $2.6 million to $34.7 million for the year ended
December 31, 2018 from $32.1 million in the prior year comparable period. This increase was primarily driven by increased instructional expense and books and tools expense resulting from a 9.5% increase in average student
population.
|
| · |
Selling general and administrative expenses increased by $3.4 million, or 12.2%, to $30.9 million for the
year ended December 31, 2018 as compared to $27.6 million in the prior year comparable period. This increase was primarily driven by additional bad debt expense and marketing expense as detailed in the consolidated results of
operations.
|
Transitional
The following table lists the schools that are categorized in the Transitional segment which are all closed as of December 31, 2018:
|
Campus
|
Date Closed
|
|
Southington, Connecticut
|
December 31, 2018
|
|
Northeast Philadelphia, Pennsylvania
|
September 30, 2017
|
|
Center City Philadelphia, Pennsylvania
|
August 31, 2017
|
|
West Palm Beach, Florida
|
September 30, 2017
|
|
Brockton, Massachusetts
|
December 31, 2017
|
|
Lowell, Massachusetts
|
December 31, 2017
|
Revenue for the campuses in the above table have been classified in the Transitional segment for comparability for the years ended December 31, 2018 and
2017. Revenue was $5.8 million and $16.9 million for the years ended December 31, 2018 and 2017, respectively. The decrease in revenue was due to one campus classified in the Transitional segment compared to five campuses classified in the
segment in the prior year. The Transitional segment during the year ended December 31, 2018 and 2017 includes the Lincoln College of New England campus at Southington, Connecticut.
Operating loss was $6.0 million and $6.9 million for the years ended December 31, 2018 and 2017, respectively.
Corporate and Other
This category includes unallocated expenses incurred on behalf of the entire Company. Corporate and other expenses were $22.1 million for the year ended
December 31, 2018 as compared to $19.5 million in the prior year comparable period. The $2.6 million increase was primarily driven by a $0.4 million loss on the sale of property in 2018 and a $1.5 million gain in the prior year resulting from
the sale of property in 2017.
The following table presents results for our three reportable segments for the years ended December 31, 2017 and 2016.
|
Twelve Months Ended December 31,
|
||||||||||||
|
2017
|
2016
|
% Change
|
||||||||||
|
Revenue:
|
||||||||||||
|
Transportation and Skilled Trades
|
$
|
181,328
|
$
|
182,276
|
-0.5
|
%
|
||||||
|
Healthcare and Other Professions
|
63,641
|
62,870
|
1.2
|
%
|
||||||||
|
Transitional
|
16,884
|
40,413
|
-58.2
|
%
|
||||||||
|
Total
|
$
|
261,853
|
$
|
285,559
|
-8.3
|
%
|
||||||
|
Operating
Income (Loss):
|
||||||||||||
|
Transportation and Skilled Trades
|
$
|
17,795
|
$
|
21,578
|
-17.5
|
%
|
||||||
|
Healthcare and Other Professions
|
3,937
|
(9,392
|
)
|
-141.9
|
%
|
|||||||
|
Transitional
|
(6,926
|
)
|
(16,995
|
)
|
59.2
|
%
|
||||||
|
Corporate
|
(19,522
|
)
|
(24,105
|
)
|
19.0
|
%
|
||||||
|
Total
|
$
|
(4,716
|
)
|
$
|
(28,914
|
)
|
83.7
|
%
|
||||
|
Starts:
|
||||||||||||
|
Transportation and Skilled Trades
|
7,763
|
7,892
|
-1.6
|
%
|
||||||||
|
Healthcare and Other Professions
|
3,673
|
3,543
|
3.7
|
%
|
||||||||
|
Transitional
|
363
|
1,791
|
-79.7
|
%
|
||||||||
|
Total
|
11,799
|
13,226
|
-10.8
|
%
|
||||||||
|
Average
Population:
|
||||||||||||
|
Transportation and Skilled Trades
|
6,961
|
7,072
|
-1.6
|
%
|
||||||||
|
Healthcare and Other Professions
|
3,024
|
2,939
|
2.9
|
%
|
||||||||
|
Transitional
|
787
|
1,853
|
-57.5
|
%
|
||||||||
|
Total
|
10,772
|
11,864
|
-9.2
|
%
|
||||||||
|
End of
Period Population:
|
||||||||||||
|
Transportation and Skilled Trades
|
6,626
|
6,904
|
-4.0
|
%
|
||||||||
|
Healthcare and Other Professions
|
3,136
|
2,935
|
6.8
|
%
|
||||||||
|
Transitional
|
397
|
1,396
|
-71.6
|
%
|
||||||||
|
Total
|
10,159
|
11,235
|
-9.6
|
%
|
||||||||
Year Ended December 31, 2017 Compared to Year Ended December 31, 2016
Transportation and Skilled Trades
Student start results decreased by 1.6% to 7,763 for the year ended December 31, 2017 from 7,892 in the prior year comparable period.
Increased marketing spend targeted at the adult demographic has resulted in slightly higher
adult start rates for the year ended December 31, 2017 when compared to the prior year comparable period. However, as previously reported for the second quarter of 2017, there was a decline in starts as a result of a lower than expected
high school start rate. Graduating high school students make up approximately 31% of the segment’s starts. In an effort to increase high school enrollments, the Company has made various changes to its processes and organizational structure.
These shortfalls in the high school start rate have offset the favorable start rates for the adult start demographic.
Operating income decreased by $3.8 million, or 17.5%, to $17.8 million for the year ended December 31, 2017 from $21.6 million in the prior year comparable
period mainly driven by the following factors:
| · |
Revenue decreased to $181.3 million for the year ended December 31, 2017, as compared to $182.3 million in
the comparable prior year period. The slight decrease in revenue was primarily driven by a 1.6% decrease in average student population, partially offset by a 1.1% increase in average revenue per student.
|
| · |
Educational services and facilities expense decreased by $1.2 million, or 1.4%, mainly due to reductions in
depreciation expense attributable to assets that have fully depreciated.
|
| · |
Selling, general and administrative expense increased by $4.2 million, primarily resulting from $1.4
million of additional bad debt expense resulting from higher student accounts, higher account write-off’s, and timing of Title IV Program receipts and a $1.5 million increase in marketing expense. The increase in marketing expense
is part of a strategic effort to increase student population and increase brand awareness. As mentioned previously, the increased marketing spend targeted at the adult demographic has resulted in slightly higher starts year over
year. This progress has been offset by lower than expected high school starts.
|
Healthcare and Other Professions
Student start results had increased by 3.7% to 3,673 for the year ended December 31, 2017 from 3,543 in the prior year comparable period. This increase
represents the first time in approximately three years where student starts have yielded positive results. We believe this achievement is the result of additional marketing spend aimed at increasing student population.
Operating income for the year ended December 31, 2017 was $3.9 million compared to an operating loss of $9.4 million in the prior year comparable period.
The $13.3 million change was mainly driven by the following factors:
| · |
Revenue increased to $63.6 million for the year ended December 31, 2017, as compared to $62.9 million in
the prior year comparable period. The increase in revenue is mainly attributable to a 2.9% increase in average population, partially offset by a lower carry in population year over year and a 1.6% decline in average revenue per student due to tuition decreases at certain campuses.
|
| · |
Educational services and facilities expense remained essentially flat at $32.1 million and $32 million for the years ended December 31, 2017 and 2016, respectively.
|
| · |
Selling, general and administrative expenses increased by $1.5 million, or 5.9%, mainly due to a $1.2
million increase in sales and marketing expense as a result of increased spending in an effort to increase student population and brand awareness and a $0.2 million increase in administrative expense as a result of increased
salaries and benefits. Increased salaries and benefits resulted from the addition of administrative staff to accommodate newly transferred students from our Northeast Philadelphia, Pennsylvania and Center City Philadelphia,
Pennsylvania campuses, which were closed in August 2017.
|
| · |
Impairment of goodwill and long lived asset decreased by $14.3 million as a result of non-cash, pre-tax charges during the year ended December 31, 2016.
|
Transitional
The following table lists the schools that are categorized in the Transitional segment which are all closed as of December 31, 2017:
|
Campus
|
Date Closed
|
|
Southington, Connecticut
|
December 31, 2018
|
|
Center City Philadelphia, Pennsylvania
|
August 31, 2017
|
|
Center City Philadelphia, Pennsylvania
|
August 31, 2017
|
|
West Palm Beach, Florida
|
September 30, 2017
|
|
Brockton, Massachusetts
|
December 31, 2017
|
|
Lowell, Massachusetts
|
December 31, 2017
|
|
Fern Park, Florida
|
March 31, 2016
|
|
Hartford, Connecticut
|
December 31, 2016
|
|
Henderson (Green Valley), Nevada
|
December 31, 2016
|
Revenue for the campuses in the above table have been classified in the Transitional segment for comparability for the years ended December 31, 2017 and
2016.
Revenue was $16.9 million for the year ended December 31, 2017 as compared to $40.4 million in the prior year comparable period mainly due to the campus
closures.
Operating loss decreased by $10.1 million to $6.9 million for the year ended December 31, 2017 from $17 million in the prior year comparable period. The
decrease was due to campus closures.
Corporate and Other
This category includes unallocated expenses incurred on behalf of the entire Company. Corporate and other expenses decreased by $4.6 million, or 19.0%, to
$19.5 million from $24.1 million in the prior year comparable period. The decrease was primarily driven by a $1.5 million gain resulting from the sale of two properties located in West Palm Beach, Florida on August 14, 2017; a reduction in
salaries and benefits expense of approximately $2.5 million; and a $1.4 million non-cash impairment charge in relation to one of our corporate properties that occurred in December 31, 2016. Partially offsetting these reductions were $1.6 million
in additional closed school costs. The additional closed school costs related to the closure of the Hartford, Connecticut campus on December 31, 2016. The additional expenses relating to the Hartford, Connecticut campus were due to an apartment
lease for student dorms, which will end in September 2019.
LIQUIDITY AND CAPITAL RESOURCES
Our primary capital requirements are for facilities expansion and maintenance, and the development of new programs. Our principal sources of liquidity have
been cash provided by operating activities and borrowings under our credit facility. The following chart summarizes the principal elements of our cash flow for each of the three years in the period ended December 31, 2018:
|
Cash Flow Summary
Year Ended December 31,
|
||||||||||||
|
2018
|
2017
|
2016
|
||||||||||
|
(In thousands)
|
||||||||||||
|
Net cash used in operating activities
|
$
|
(1,694
|
)
|
$
|
(11,321
|
)
|
$
|
(6,107
|
)
|
|||
|
Net (cash used) provided by in investing activities
|
$
|
(2,349
|
)
|
$
|
10,707
|
$
|
(3,145
|
)
|
||||
|
Net (cash used) provided by in financing activities
|
$
|
(4,565
|
)
|
$
|
7,453
|
$
|
(4,074
|
)
|
||||
As of December 31, 2018, the Company had a net debt balance of $3.4 million compared to a net cash balance of $1.2 million as of December 31, 2017. The net
debt balance is calculated as our cash, cash equivalents and both short and long-term restricted cash less both short and long-term portion of the credit agreement. The decrease in cash position can mainly be attributed to the repayment net of
borrowings of $4.1 million under our line of credit facility and a net loss during the year ended December 31, 2018, partially offset by other working capital items.
For the last several years, the Company and the proprietary school sector generally have faced deteriorating earnings growth. Government regulations have
negatively impacted earnings by making it more difficult for prospective students to obtain loans, which when coupled with the overall economic environment have hindered prospective students from enrolling in our schools. In light of these
factors, we have incurred significant operating losses as a result of lower student population. However, our financial and population results continue to improve as evidenced by our start growth for the last five consecutive quarters. As a
result, we believe that our likely sources of cash should be sufficient to fund operations for the next twelve months and thereafter for the foreseeable future.
To fund our business plans, including any anticipated future losses, purchase commitments, capital expenditures and principal and interest payments on
borrowings, we leveraged our owned real estate. We are also continuing to take actions to improve cash flow by aligning our cost structure to our student population, in addition to our current sources of capital that provide short term liquidity.
Our primary source of cash is tuition collected from our students. The majority of students enrolled at our schools rely on funds received under various
government-sponsored student financial aid programs to pay a substantial portion of their tuition and other education-related expenses. The most significant source of student financing is Title IV Programs, which represented approximately 78% of
our cash receipts relating to revenues in 2018. Pursuant to applicable regulations, students must apply for a new loan for each academic period. Federal regulations dictate the timing of disbursements of funds under Title IV Programs and loan
funds are generally provided by lenders in two disbursements for each academic year. The first disbursement is usually received approximately 31 days after the start of a student’s academic year and the second disbursement is typically received
at the beginning of the sixteenth week from the start of the student's academic year. Certain types of grants and other funding are not subject to a 31-day delay. In certain instances, if a student withdraws from a program prior to a specified
date, any paid but unearned tuition or prorated Title IV Program financial aid is refunded according to federal, state and accrediting agency standards.
As a result of the significant amount of Title IV Program funds received by our students, we are highly dependent on these funds to operate our business.
Any reduction in the level of Title IV Program funds that our students are eligible to receive or any restriction on our eligibility to receive Title IV Program funds would have a significant impact on our operations and our financial condition.
For more information, see “Risks Related to Our Industry” found under the heading“ Risk Factors” in Item 1A of this Annual Report.
Operating Activities
Net cash used in operating activities was $1.7 million for the year ended December 31, 2018 compared to $11.3 million in the prior year comparable period.
The decrease in cash used in operating activities for the year ended December 31, 2018 as compared to the year ended December 31, 2017 is primarily due to a reduction in net loss from operations as well as changes in other working capital such as
accounts receivable, accounts payable, accrued expenses and unearned tuition.
Investing Activities
Net cash used in investing activities was $2.3 million for the year ended December 31, 2018 compared to net cash provided by investing activities of $10.7
million in the prior year comparable period. The decrease of $13.1 million was primarily the result of the sale of the West Palm Beach, Florida property on August 14, 2017, resulting in cash inflows of $15.5 million in the prior year. This was
partially offset by the sale of the Mangonia Park, Florida property on August 23, 2018 which generated a cash inflow of $2.3 million in the current year.
One of our primary uses of cash in investing activities was capital expenditures associated with investments in training technology, classroom furniture,
and new program buildouts.
We currently lease a majority of our campuses. We own our real property in Grand Prairie, Texas; Nashville, Tennessee; and Denver, Colorado and our former
school property located in Suffield, Connecticut.
Capital expenditures are expected to approximate 2% of revenues in 2019. We expect to fund future capital expenditures with cash generated from operating
activities, borrowings under our revolving credit facility, and cash from our real estate monetization.
Financing Activities
Net cash used in financing activities was $4.6 million for the year ended December 31, 2018 as compared to cash provided by financing activities of $7.5
million in the prior year comparable period. The decrease of $12 million was due to net payments on borrowing of $4.1 million for the year ended December 31, 2018, as compared to net borrowings of $9.1 million in the prior year comparable
period. Also contributing to the change year over year were outflows in the prior year of $1.2 million relating to the write-off of previously capitalized expenditures upon execution of our current credit facility.
Net payments on borrowings consisted of: (a) total borrowing to date under our secured credit facility of $31 million; and (b) $35.1 million in total
repayments made by the Company.
Credit Agreement
On March 31, 2017, the Company obtained a secured credit facility (the “Credit Facility”) from Sterling National Bank (the “Bank”) pursuant to a Credit
Agreement dated March 31, 2017 among the Company, the Company’s subsidiaries and the Bank, which was subsequently amended on November 29, 2017, February 23, 2018, July 11, 2018 and, most recently, on March 6, 2019 (as amended, the “Credit
Agreement”). Prior to the most recent amendment of the Credit Agreement (the “Fourth Amendment”), the financial accommodations available to the Borrowers under the Credit Agreement
consisted of (a) a $25 million revolving loan facility designated as “Facility 1”, (b) a $25 million revolving loan facility (including a sublimit amount for letters of credit of $10 million) designated as “Facility 2” and (c) a $15
million revolving credit loan designated as “Facility 3”.
Pursuant to the terms of the Fourth Amendment and upon its effectiveness, Facility 1 was converted into a term loan (the “Term Loan”) in the original
principal amount of $22,700,649.31 (such amount being the entire unpaid principal and accrued interest outstanding under Facility 1 as of the effective date of the Fourth Amendment), which matures on March 31, 2024 (the “Term Loan Maturity
Date”). The Fourth Amendment provides for the repayment of the Term Loan in monthly installments as follows: (a) on April 1, 2019 and on the same day of each month thereafter through and including June 30, 2019, accrued interest only; (b) on
July 1, 2019 and on the same day of each month thereafter through and including December 31, 2019, the principal amount of $189,172.08 plus accrued interest; (c) on January 1, 2020 and on the same day of each month thereafter through and
including June 30, 2020, accrued interest only; (d) on July 1, 2020 and on the same day of each month thereafter through and including December 31, 2020, the principal amount of $567,516.24 plus accrued interest; (e) on January 1, 2021 and on the
same day of each month thereafter through and including June 30, 2021, accrued interest only; (f) on July 1, 2021 and on the same day of each month thereafter through and including December 31, 2021, the principal amount of $378,344.16 plus
accrued interest; (g) on January 1, 2022 and on the same day of each month thereafter through and including June 30, 2022, accrued interest only; (h) on July 1, 2022 and on the same day of each month thereafter through and including December 31,
2022, the principal amount of $378,344.16 plus accrued interest; (i) on January 1, 2023 and on the same day of each month thereafter through and including June 30, 2023, accrued interest only; (j) on July 1, 2023 and on the same day of each month
thereafter through and including December 31, 2023, the principal amount of $378,344.16 plus accrued interest; (k) on January 1, 2024 and on the same day of each month thereafter through and including the Term Loan Maturity Date, accrued
interest only; and (l) on the Term Loan Maturity Date, the remaining outstanding principal amount of the Term Loan, together with accrued interest, will be due and payable. In the event of a sale of any campus, school or business of the
Borrowers permitted under the Credit Agreement, 25% of the net proceeds of any such sale must be used to pay down the outstanding principal amount of the Term Loan in inverse order of maturity.
The Fourth Amendment changed the maturity date of Facility 2 from May 31, 2020 to April 30, 2020. The maturity date for Facility 3 is May 31, 2019.
Under the terms of the Credit Agreement, all draws under Facility 2 for letters of credit or revolving loans and all draws under Facility 3 must be secured
by cash collateral in an amount equal to 100% of the aggregate stated amount of the letters of credit issued and revolving loans outstanding through the proceeds of the Term Loan or other available cash of the Company. Notwithstanding such
requirement, pursuant to the terms of the Fourth Amendment, a $2.5 million revolving loan was advanced under Facility 2 at the closing of the Fourth Amendment on March 6, 2019 without any requirement for cash collateral and, in the Bank’s sole
discretion, an additional $2.5 million of revolving loans may be advanced under Facility 2 without any requirement for cash collateral, consisting of (a) a $1.25 million revolving loan within 15 days after the Bank’s receipt of the Company’s
financial statements for the fiscal quarter ending March 31, 2019 and (b) a $1.25 million revolving loan within 15 days after the Bank’s receipt of the Company’s financial statements for the fiscal quarter ending June 30, 2019. The $2.5 million
revolving loan advanced under Facility 2 at the closing of the Fourth Amendment and the additional $2.5 million of revolving loans that may be advanced under Facility 2 in the discretion of the Bank, in each case without any requirement for cash
collateral, must be repaid on November 1, 2019 and, prior to their repayment, the Borrowers are required to make monthly payments of accrued interest only on such revolving loans.
The Term Loan bears interest at a rate per annum equal to the greater of (x) the Bank’s prime rate plus 2.85% and (y) 6.00%. Revolving loans outstanding
under Facility 1 prior to its conversion to a term loan also bore interest at a rate per annum equal to the greater of (x) the Bank’s prime rate plus 2.85% and (y) 6.00%. Revolving loans advanced under Facility 2 that are cash collateralized
will bear interest at a rate per annum equal to the greater of (x) the Bank’s prime rate and (y) 3.50%. Pursuant to the Fourth Amendment, revolving loans advanced under Facility 2 that are not secured by cash collateral will bear interest at a
rate per annum equal to the greater of (x) the Bank’s prime rate plus 2.85% and (y) 6.00%. Revolving loans under Facility 3 bear interest at a rate per annum equal to the greater of (x) the Bank’s prime rate and (y) 3.50%.
Under the terms of the Fourth Amendment, the Bank is entitled to receive an unused facility fee on the average daily unused balance of Facility 2 at a rate
per annum equal to 0.50%, which fee is payable quarterly in arrears.
The Fourth Amendment provides that in the event the Bank’s prime rate is greater than or equal to 6.50% while any loans are outstanding, the Borrowers may
be required to enter into a hedging contract in form and content satisfactory to the Bank.
The Fourth Amendment requires the Borrowers to give the Bank the first opportunity to provide any and all traditional banking services required by the
Borrowers, including, but not limited to, treasury management, loans and other financing services, on terms mutually acceptable to the Borrowers and the Bank, in accordance with the terms set forth in the Fourth Amendment. In the event that
loans provided under the Credit Agreement are repaid through replacement financing, the Fourth Amendment requires that the Borrowers pay to the Bank an exit fee in an amount equal to 1.25% of the total amount repaid and the face amount of all
letters of credit replaced in connection with the replacement financing; provided, however, that no exit fee will be required in the event the Bank or the Bank’s affiliate arranges or provides the replacement financing or the payoff of the
applicable loans occurs after March 5, 2021.
In connection with the effectiveness of the Fourth Amendment, the Borrowers paid to the Bank a one-time modification fee in the amount of $50,000.
Pursuant to the Credit Agreement, in December 2018, the net proceeds of the sale of the Mangonia Park Property, which were held in a non-interest bearing
cash collateral account at and by the Bank as additional collateral for the loans outstanding under the Credit Agreement, were applied to the outstanding principal balance of revolving loans outstanding under Facility 1 and, as a result of such
repayment, the revolving loan availability under Facility 1 was permanently reduced to $22.7 million.
The Credit Facility is secured by a first priority lien in favor of the Bank on substantially all of the personal property owned by the Company and
mortgages on four parcels of real property owned by the Company in Colorado, Tennessee and Texas, at which three of the Company’s schools are located, as well as a former school property owned by the Company located in Connecticut.
At the closing of the Credit Facility, the Company drew $25 million under Facility 1, which was used to repay the Company’s previous credit facility and to
pay transaction costs associated with closing the Credit Facility.
Each issuance of a letter of credit under Facility 2 will require the payment of a letter of credit fee to the Bank equal to a rate per annum of 1.75% on
the daily amount available to be drawn under the letter of credit, which fee shall be payable in quarterly installments in arrears. Letters of credit totaling $6.2 million that were outstanding under a $9.5 million letter of credit facility
previously provided to the Company by the Bank, which letter of credit facility was set to mature on April 1, 2017, are treated as letters of credit under Facility 2.
The terms of the Credit Agreement require the Company to maintain, on deposit in one or more non-interest bearing accounts, a minimum of $5 million in
quarterly average aggregate balances, which, if not maintained, results in a fee of $12,500 payable to the Bank for that quarter.
In addition to the foregoing, the Credit Agreement contains customary representations, warranties and affirmative and negative covenants, including
financial covenants that (i) restrict capital expenditures tested on a fiscal year end basis; (i) prohibit the incurrence of a net loss commencing on December 31, 2019; and (iii) require a minimum adjusted EBITDA tested quarterly on a rolling
twelve month basis. The Fourth Amendment (i) modifies the minimum adjusted EBITDA required; (ii) eliminates the requirement for a minimum funded debt to adjusted EBITDA ratio; and (iii) requires the maintenance of a maximum funded debt to
adjusted EBITDA ratio tested quarterly on a rolling twelve month basis. The Credit Agreement contains events of default customary for facilities of this type. As of December 31, 2018, the Company is in compliance with all covenants.
As of December 31, 2018, the Company had $49.3 million outstanding under the Credit Facility; offset by $0.5 million of deferred finance fees. As of
December 31, 2017, the Company had $53.4 million outstanding under the Credit Facility, offset by $0.8 million of deferred finance fees, which were written-off. As of December 31, 2018 and December 31, 2017, letters of credit in the aggregate
outstanding principal amount of $1.8 million and $7.2 million, respectively, were outstanding under the Credit Facility. For the three months ended March 31, 2019, the Company is required to increase its letters of credit by $2.8 million related
to state bond requirements which requires the Company to increase its restricted cash balance by $2.8 million.
Long-term debt and lease obligations consist of the following:
|
As of December 31,
|
||||||||
|
2018
|
2017
|
|||||||
|
Credit agreement
|
$
|
49,301
|
$
|
53,400
|
||||
|
Deferred financing fees
|
(532
|
)
|
(807
|
)
|
||||
|
Subtotal
|
48,769
|
52,593
|
||||||
|
Less current maturities
|
(15,000
|
)
|
-
|
|||||
|
Total long-term debt
|
$
|
33,769
|
$
|
52,593
|
||||
As of December 31, 2018, we had outstanding loan commitments to our students of $63.1 million, as compared to $51.9 million at December 31, 2017. Loan
commitments, net of interest that would be due on the loans through maturity, were $46.2 million at December 31, 2018, as compared to $38.5 million at December 31, 2017.
Climate Change
Climate change has not had and is not expected to have a significant impact on our operations.
Contractual Obligations
Current portion of Long-Term Debt, Long-Term Debt and
Lease Commitments. As of December 31, 2018, our current portion of long-term debt and long-term debt consisted of borrowings under our Credit Facility. We lease offices, educational facilities and various equipment for varying periods through the year 2030 at basic
annual rentals (excluding taxes, insurance, and other expenses under certain leases).
The following table contains supplemental information regarding our total contractual obligations
as of December 31, 2018:
|
Payments Due by Period
|
||||||||||||||||||||
|
Total
|
Less than
1 year
|
1-3 years
|
3-5 years
|
More
than 5
years
|
||||||||||||||||
|
Credit facility
|
$
|
49,301
|
*
|
$
|
15,000
|
$
|
34,301 |
$
|
- |
$
|
- | |||||||||
|
Operating leases
|
73,431
|
16,939
|
24,891
|
13,991
|
17,610
|
|||||||||||||||
|
Total contractual cash obligations
|
$
|
122,732
|
$
|
31,939
|
$
|
59,192
|
$
|
13,991
|
$
|
17,610
|
||||||||||
* Excludes deferred finance fees of $0.5 million.
OFF-BALANCE SHEET ARRANGEMENTS
We had no off-balance sheet arrangements as of December 31, 2018, except for surety bonds. At December 31, 2018, we posted surety bonds in the total amount
of approximately $12.7 million. Cash collateralized letters of credit of $1.8 million are primarily comprised of letters of credit for DOE matters and security deposits in connection with certain of our real estate leases. We are required to
post surety bonds on behalf of our campuses and education representatives with multiple states to maintain authorization to conduct our business. These off-balance sheet arrangements do not adversely impact our liquidity or capital resources.
SEASONALITY AND OUTLOOK
Seasonality
Our revenue and operating results normally fluctuate as a result of seasonal variations in our business, principally due to changes in total student
population. Student population varies as a result of new student enrollments, graduations and student attrition. Historically, our schools have had lower student populations in our first and second quarters and we have experienced larger class
starts in the third quarter and higher student attrition in the first half of the year. Our second half growth is largely dependent on a successful high school recruiting season. We recruit our high school students several months ahead of their
scheduled start dates and, thus, while we have visibility on the number of students who have expressed interest in attending our schools, we cannot predict with certainty the actual number of new student enrollments and the related impact on
revenue. Our expenses, however, typically do not vary significantly over the course of the year with changes in our student population and revenue. During the first half of the year, we make significant investments in marketing, staff, programs
and facilities to meet our second half of the year targets and, as a result, such expenses do not fluctuate significantly on a quarterly basis. To the extent new student enrollments, and related revenue, in the second half of the year fall short
of our estimates, our operating results could be negatively impacted. We expect quarterly fluctuations in operating results to continue as a result of seasonal enrollment patterns. Such patterns may change as a result of new school openings, new
program introductions, and increased enrollments of adult students and/or acquisitions.
Outlook
Similar to many companies in the proprietary education sector, we have experienced significant deterioration in student enrollments over the last several
years. This can be attributed to many factors including the economic environment and numerous regulatory changes such as changes to admissions advisor compensation policies, elimination of “ability-to-benefit,” changes to the 90/10 Rule and
cohort default rates, gainful employment and modifications to Title IV Program amounts and eligibility. While the industry has not returned to growth, the trends are far more stable as declines have slowed.
As the economy continues to improve and the unemployment rate continues to decline our student enrollment is negatively impacted due to a portion of our
potential student base entering the workforce earlier without obtaining any post-secondary training. Offsetting this short term decline in available students is the fact that an increasing number of individuals in the “baby boom” generation are
retiring from the workforce. The retirement of baby boomers coupled with a growing economy has resulted in additional employers looking to us to help solve their workforce needs. With schools in 14 states, we are a very attractive employment
solution for large regional and national employers.
To fund our business plans, including any anticipated future losses, purchase commitments, capital expenditures, principal and interest payments on
borrowings and to satisfy the DOE financial responsibility standards, we have entered into a credit facility as described above and continue to have the ability to sell our assets that are classified as held for sale. We are also continuing to
take actions to improve cash flow by aligning our cost structure to our student population.
Effect of Inflation
Inflation has not had and is not expected to have a significant impact on our operations.
We are exposed to certain market risks as part of our on-going business operations. Our obligations under our credit facility are secured by a lien on
substantially all of our assets and any assets that we or our subsidiaries may acquire in the future. Outstanding borrowings under our credit facility bear interest at the rate of 8.35% as of December 31, 2018. As of December 31, 2018, we had
$49.3 million outstanding under our credit facility.
Based on our outstanding debt balance as of December 31, 2018, a change of one percent in the interest rate would have caused a change in our interest
expense of approximately $0.5 million, or $0.02 per basic share, on an annual basis. Changes in interest rates could have an impact on our operations, which are greatly dependent on our students’ ability to obtain financing and, as such, any
increase in interest rates could greatly impact our ability to attract students and have an adverse impact on the results of our operations. The remainder of our interest rate risk is associated with miscellaneous capital equipment leases, which
is not significant.
See “Index to Consolidated Financial Statements” on page F-1 of this Annual Report on Form 10-K.
None.
Evaluation of disclosure controls and procedures
Our Chief Executive Officer and Chief Financial Officer, after evaluating, together with management, the effectiveness of our disclosure controls and
procedures (as defined in Securities Exchange Act Rule 13a-15(e)) as of December 31, 2018 have concluded that our disclosure controls and procedures are effective to reasonably ensure that material information required to be disclosed by us in
the reports that we file or submit under the Securities Exchange Act of 1934, as amended, is recorded, processed, summarized and reported within the time periods specified by Securities and Exchange Commissions’ Rules and Forms and that such
information is accumulated and communicated to our management, including our Chief Executive Officer and Chief Financial Officer, as appropriate, to allow timely decisions regarding required disclosure.
Internal Control Over Financial Reporting
During the quarter ended December 31, 2018, there has been no change in our internal control over financial reporting that has materially affected, or is
reasonably likely to materially affect, our internal control over financial reporting. We implemented internal controls to ensure we adequately evaluated our contracts and properly assessed the impact of the new accounting standards related to
leases on our financial statements to facilitate their adoption on January 1, 2019. There were no significant changes to our internal control over financial reporting due to the adoption of the new standard.
Management’s Annual Report on Internal Control over Financial Reporting
The management of the Company is responsible for establishing and maintaining adequate internal control over financial reporting as defined in Rule
13a-15(f) under the Securities Exchange Act of 1934, as amended. The Company’s internal control system was designed to provide reasonable assurance to the Company’s management and Board of Directors regarding the reliability of financial
reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles.
Management assessed the effectiveness of the Company’s internal control over financial reporting as of December 31, 2018, based on the framework set forth
by the Committee of Sponsoring Organizations of the Treadway Commission (COSO) in Internal Control—Integrated Framework (2013). Based on its assessment,
management believes that, as of December 31, 2018, the Company’s internal control over financial reporting is effective.
Because of its inherent limitations, internal control over financial reporting may not prevent or detect misstatements. Also, projections of any evaluation
of effectiveness to future periods are subject to the risk that controls may become inadequate because of changes in conditions, or that the degree of compliance with the policies or procedures may deteriorate.
The Company’s independent auditors, Deloitte & Touche LLP, an independent registered public accounting firm, audited the Company’s internal control over
financial reporting as of December 31, 2018, as stated in their report included in this Form 10-K that follows.
(a) On March 6, 2019, the Company and its wholly-owned subsidiaries (
collectively with the Company, the “Borrowers”) entered into a fourth amendment (the “Fourth Amendment”) of the Credit Agreement dated as of March 31, 2017 (as previously amended, the “Credit Agreement”) among the Borrowers and its lender,
Sterling National Bank (the “Bank”).
Prior to the Fourth Amendment and as previously reported, the credit facilities available to
the Borrowers under the Credit Agreement consisted of (a) a $25 million revolving loan facility designated as “Facility 1”, (b) a $25 million revolving loan facility (including a sublimit amount for letters of credit of $10 million)
designated as “Facility 2” and (c) a $15 million revolving credit loan facility designated as “Facility 3”. Pursuant to the terms of the Fourth Amendment and upon its effectiveness, Facility 1 was converted into a term loan (the “Term Loan”) in
the original principal amount of $22,700,649.31 (such amount being the entire unpaid principal and accrued interest outstanding under Facility 1 as of the effective date of the Fourth Amendment), which matures on March 31, 2024 (the “Term Loan
Maturity Date”). The Term Loan bears interest at a rate per annum equal to the greater of (x) the Bank’s prime rate plus 2.85% and (y) 6.00%. Revolving loans outstanding under Facility 1 prior to its conversion to a term loan also bore interest
at a rate per annum equal to the greater of (x) the Bank’s prime rate plus 2.85% and (y) 6.00%.
The Fourth Amendment provides for the repayment of the Term Loan in monthly installments as follows: (a) on April 1, 2019 and on the same day of each month
thereafter through and including June 30, 2019, accrued interest only; (b) on July 1, 2019 and on the same day of each month thereafter through and including December 31, 2019, the principal amount of $189,172.08 plus accrued interest; (c) on
January 1, 2020 and on the same day of each month thereafter through and including June 30, 2020, accrued interest only; (d) on July 1, 2020 and on the same day of each month thereafter through and including December 31, 2020, the principal
amount of $567,516.24 plus accrued interest; (e) on January 1, 2021 and on the same day of each month thereafter through and including June 30, 2021, accrued interest only; (f) on July 1, 2021 and on the same day of each month thereafter through
and including December 31, 2021, the principal amount of $378,344.16 plus accrued interest; (g) on January 1, 2022 and on the same day of each month thereafter through and including June 30, 2022, accrued interest only; (h) on July 1, 2022 and on
the same day of each month thereafter through and including December 31, 2022, the principal amount of $378,344.16 plus accrued interest; (i) on January 1, 2023 and on the same day of each month thereafter through and including June 30, 2023,
accrued interest only; (j) on July 1, 2023 and on the same day of each month thereafter through and including December 31, 2023, the principal amount of $378,344.16 plus accrued interest; (k) on January 1, 2024 and on the same day of each month
thereafter through and including the Term Loan Maturity Date, accrued interest only; and (l) on the Term Loan Maturity Date, the remaining outstanding principal amount of the Term Loan, together with accrued interest, will be due and payable. In
the event of a sale of any campus, school or business of the Borrowers permitted under the Credit Agreement, 25% of the net proceeds of any such sale must be used to pay down the outstanding principal amount of the Term Loan in inverse order of
maturity.
The Fourth Amendment changed the maturity date of Facility 2 from May 31, 2020 to April 30, 2020. The maturity date for Facility 3 was not changed by the Fourth Amendment and remains May 31, 2019.
REPORT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
The Fourth Amendment did not modify the Credit Agreement’s requirement that all revolving loans advanced under Facility 2 and draws for letters of
credit under Facility 2 be fully cash collateralized. Notwithstanding such requirement, pursuant to the terms of the Fourth Amendment, a $2.5 million revolving loan was advanced under Facility 2 at the closing of the Fourth Amendment without
any requirement for cash collateral and, in the Bank’s sole discretion, an additional $2.5 million of revolving loans may be advanced under Facility 2 without any requirement for cash collateral, consisting of (a) a $1.25 million revolving
loan within 15 days after the Bank’s receipt of the Company’s financial statements for the fiscal quarter ending March 31, 2019 and (b) a $1.25 million revolving loan within 15 days after the Bank’s receipt of the Company’s financial
statements for the fiscal quarter ending June 30, 2019. The $2.5 million revolving loan advanced under Facility 2 at the closing of the Fourth Amendment and the additional $2.5 million of revolving loans that may be advanced under Facility 2
in the discretion of the Bank, in each case without any requirement for cash collateral, must be repaid on November 1, 2019 and, prior to their repayment, the Borrowers are required to make monthly payments of accrued interest only on such
revolving loans. Pursuant to the Fourth Amendment, revolving loans advanced under Facility 2 that are not secured by cash collateral will bear interest at a rate per annum equal to the greater of (x) the Bank’s prime rate plus 2.85% and (y)
6.00% and revolving loans advanced under Facility 2 that are cash collateralized will bear interest at a rate per annum equal to the greater of (x) the Bank’s prime rate and (y) 3.50%.
Under the terms of the Fourth Amendment, the Bank is entitled to receive an unused facility fee on the average daily unused balance of Facility 2 at a
rate per annum equal to 0.50%, which fee is payable quarterly in arrears.
The Fourth Amendment provides that in the event the Bank’s prime rate is greater than or equal to 6.50% while any loans are outstanding, the Borrowers
may be required to enter into a hedging contract in form and content satisfactory to the Bank.
With respect to the financial covenants contained in the Credit Agreement, the Fourth Amendment (i) modifies the minimum adjusted EBITDA required, (ii)
eliminates the requirement for a minimum funded debt to adjusted EBITDA ratio and (iii) requires the maintenance of a maximum funded debt to adjusted EBITDA ratio.
The Fourth Amendment requires the Borrowers to give the Bank the first opportunity to provide any and all traditional banking services required by the
Borrowers, including, but not limited to, treasury management, loans and other financing services, on terms mutually acceptable to the Borrowers and the Bank, in accordance with the terms set forth in the Fourth Amendment. In the event that
loans provided under the Credit Agreement are repaid through replacement financing, the Fourth Amendment requires that the Borrowers pay to the Bank an exit fee in an amount equal to 1.25% of the total amount repaid and the face amount of all
letters of credit replaced in connection with the replacement financing; provided, however, that no exit fee will be required in the event the Bank or the Bank’s affiliate arranges or provides the replacement financing or the payoff of the
applicable loans occurs after March 5, 2021.
In connection with the effectiveness of the Fourth Amendment, the Borrowers paid to the Bank a one-time modification fee in the amount of $50,000.
The foregoing description of the Fourth Amendment does not purport to be complete and is qualified in its entirety by reference to the full text of the
Fourth Amendment filed as Exhibit 10.6 to this Annual Report on Form 10-K, which is incorporated herein by reference.
(b) On March 8, 2019, the board of directors of the Company approved an
amendment of the Company’s Bylaws (as amended, the “Amended Bylaws”), effective immediately, to include a new Article XI. The new Article XI provides for the designation of the United States District Court for the District of New Jersey (or
in the event that such court lacks jurisdiction to hear such action, a Superior Court of the State of New Jersey) as the sole and exclusive forum for certain types of litigation unless the Company consents in writing to the selection of an
alternative forum. The foregoing description of the Amended Bylaws is not complete and is qualified in its entirety by reference to the complete text of the Amended Bylaws, a copy of which is filed as Exhibit 3.2 to this Annual Report on
Form 10-K and incorporated by reference herein.
PART III.
Certain information required by this item will be included in a definitive proxy statement for the Company’s annual meeting of shareholders or an
amendment to this Annual Report on Form 10-K, in either case filed with the Securities and Exchange Commission within 120 days after December 31, 2018, and is incorporated by reference herein.
Directors and Executive Officers
Certain information required by this Item 10 of Part III is incorporated by reference from a definitive proxy statement or an amendment to this Annual
Report on Form 10-K that will be filed with the Securities and Exchange Commission within 120 days after December 31, 2018.
Code of Ethics
We have adopted a Code of Conduct and Ethics applicable to our directors, officers and employees and certain other persons, including our Chief
Executive Officer and Chief Financial Officer. A copy of our Code of Ethics is available on our website at www.lincolntech.edu. If any amendments to or
waivers from the Code of Conduct are made, we will disclose such amendments or waivers on our website.
The information required by this Item 11 of Part III is incorporated by reference from a definitive proxy statement or an amendment to this Annual
Report on Form 10-K that will be filed with the Securities and Exchange Commission within 120 days after December 31, 2018.
The information required by this Item 12 of Part III is incorporated by reference from a definitive proxy statement or an amendment to this Annual
Report on Form 10-K that will be filed with the Securities and Exchange Commission within 120 days after December 31, 2018.
The information required by this Item 13 of Part III is incorporated by reference from a definitive proxy statement or an amendment to this Annual
Report on Form 10-K that will be filed with the Securities and Exchange Commission within 120 days after December 31, 2018.
The information required by this Item 14 of Part III is incorporated by reference from a definitive proxy statement or an amendment to this Annual
Report on Form 10-K that will be filed with the Securities and Exchange Commission within 120 days after December 31, 2018.
PART IV.
| 1. |
Financial Statements
|
See “Index to Consolidated Financial Statements” on page F-1 of this Annual Report on Form 10-K.
| 2. |
Financial Statement Schedule
|
See “Index to Consolidated Financial Statements” on page F-1 of this Annual Report on Form 10-K.
| 3. |
Exhibits Required by Securities and Exchange Commission Regulation S-K
|
|
Exhibit
Number
|
Description
|
|
2.1
|
Purchase and Sale Agreement, dated March 14, 2017, between New England Institute of Technology at Palm Beach, Inc. and Tambone Companies, LLC,
as amended by First Amendment to Purchase and Sale Agreement dated as of April 18, 2017, and as further amended by Second Amendment to Purchase and Sale Agreement dated as of May 12, 2017 (incorporated by reference to the Company’s
Form 8-K filed August 16, 2017).
|
|
3.1
|
Amended and Restated Certificate of Incorporation of the Company (incorporated
by reference to the Company’s Registration Statement on Form S-1/A (Registration No. 333-123644) filed June 7, 2005).
|
|
3.2*
|
Bylaws of the Company, as amended on March 8, 2019
|
|
4.1
|
Specimen Stock Certificate evidencing shares of common stock (Incorporated by reference to the Company’s Registration Statement on Form S-1/A
(Registration No. 333-123644) filed June 21, 2005).
|
|
10.1
|
Credit Agreement, dated as of March 31, 2017, among the Company, Lincoln Technical Institute, Inc. and its subsidiaries, and Sterling National
Bank (Incorporated by reference to the Company’s Form 8-K filed April 6, 2017).
|
|
10.2
|
Credit Agreement, dated as of April 28, 2017, among the Company, Lincoln Technical Institute, Inc. and its subsidiaries, and Sterling National
Bank (Incorporated by reference to the Company’s Form 8-K filed May 4, 2017).
|
|
10.3
|
First Amendment to Credit Agreement, dated as of November 29, 2017, among the Company, Lincoln Technical Institute, Inc. and its subsidiaries,
and Sterling National Bank (Incorporated by reference to the Company’s Form 8-K filed December 1, 2017)
|
|
10.4
|
Second Amendment to Credit Agreement, dated as of February 23, 2018, among the Company, Lincoln Technical Institute, Inc. and its subsidiaries,
and Sterling National Bank (Incorporated by reference to the Company’s Form 8-K filed February 26, 2018)
|
|
10.5
|
Third Amendment to Credit Agreement, dated as of July 11, 2018, among the Company, Lincoln Technical Institute, Inc. and its subsidiaries, and
Sterling National Bank (Incorporated by reference to the Company’s Form 8-K filed July 13, 2018).
|
|
10.6*
|
Fourth Amendment to Credit Agreement, dated as of March 6, 2019, among the Company, Lincoln Technical Institute, Inc. and its subsidiaries, and
Sterling National Bank
|
|
10.7
|
Commercial Contract, dated as of July 9, 2018, between New England Institute of Technology at Palm Beach, Inc. and Elite Property Enterprise,
LLC (Incorporated by reference to the Company’s Form 8-K filed July 13, 2018).
|
| 10.8 |
Employment Agreement, dated as of November 8, 2017, between the Company and Scott M. Shaw (Incorporated by reference to the Company’s Quarterly
Report on Form 10-Q filed November 13, 2017).
|
|
10.9
|
Employment Agreement, dated as of November 7, 2018, between the Company and Scott M. Shaw (Incorporated by reference to the Company’s Quarterly Report on Form 10-Q filed November 9, 2018).
|
|
10.10
|
Employment Agreement, dated as of November 8, 2017, between the Company and
Brian K. Meyers (Incorporated by reference to the Company’s Quarterly Report on Form 10-Q filed November 13, 2017).
|
|
10.11
|
Employment Agreement, dated as of November 7, 2018, between the Company and Brian K. Meyers (Incorporated by reference to the Company’s Quarterly Report on Form 10-Q filed November 9, 2018).
|
|
10.12
|
Change in Control Agreement, dated as of November 8, 2017, between the Company and Deborah Ramentol (Incorporated by reference to the
Company’s Quarterly Report on Form 10-Q filed November 13, 2017).
|
|
10.13
|
Change in Control Agreement, dated as of November 7, 2018, between the Company and Stephen M. Buchenot (Incorporated by reference to the
Company’s Quarterly Report on Form 10-Q filed November 9, 2018).
|
|
10.14
|
Lincoln Educational Services Corporation Amended and Restated 2005 Long-Term Incentive Plan (Incorporated by reference to the Company’s Form
8-K filed May 6, 2013).
|
|
10.15
|
Lincoln Educational Services Corporation Amended and Restated 2005 Non-Employee Directors Restricted Stock Plan (Incorporated by reference to
the Company’s Registration Statement on Form S-8 (Registration No. 333-211213) filed May 6, 2016).
|
|
10.16
|
Lincoln Educational Services Corporation 2005 Deferred Compensation Plan (Incorporated by reference to the Company’s Registration Statement
on Form S-1 (Registration No. 333-123644) filed March 29, 2005).
|
|
10.17
|
Form of Stock Option Agreement under our 2005 Long-Term Incentive Plan (Incorporated by reference to the Company’s Annual Report on Form 10-K
for the year ended December 31, 2007).
|
|
10.18
|
Form of Restricted Stock Agreement under our 2005 Long-Term Incentive Plan (Incorporated by reference to the Company’s Annual Report on Form
10-K for the year ended December 31, 2012).
|
|
10.19
|
Form of Performance-Based Restricted Stock Award Agreement under our Amended & Restated 2005 Long-Term Incentive Plan (Incorporated by
reference to the Company’s Form 8-K filed May 5, 2011).
|
|
21.1*
|
Subsidiaries of the Company.
|
|
23*
|
Consent of Independent Registered Public Accounting Firm.
|
|
24
|
Power of Attorney (included on the Signatures page of the Company's Annual Report on Form 10-K filed March 13, 2019).
|
|
31.1 *
|
Certification of Chief Executive Officer pursuant to Section 302 of the Sarbanes-Oxley Act of 2002.
|
|
31.2 *
|
Certification of Chief Financial Officer pursuant to Section 302 of the Sarbanes-Oxley Act of 2002.
|
|
32 *
|
Certification of Chief Executive Officer and Chief Financial Officer pursuant to 18 U.S.C. 1350, as adopted pursuant to Section 906 of the
Sarbanes-Oxley Act of 2002.
|
|
101**
|
The following financial statements from Lincoln Educational Services Corporation’s Annual Report on Form 10-K for the year ended December 31,
2018, formatted in XBRL: (i) Consolidated Statements of Operations, (ii) Consolidated Balance Sheets, (iii) Consolidated Statements of Cash Flows, (iv) Consolidated Statements of Comprehensive (Loss) Income, (v) Consolidated
Statement of Changes in Stockholders’ Equity and (vi) the Notes to Consolidated Financial Statements, tagged as blocks of text and in detail.
|
| * |
Filed herewith.
|
|
**
|
As provided in Rule 406T of Regulation S-T, this information is furnished and not filed for purposes of Sections 11 and 12 of the Securities Act of 1933
and Section 18 of the Securities Exchange Act of 1934
|
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.
|
Date: April 24, 2019
|
|||
|
LINCOLN EDUCATIONAL SERVICES CORPORATION
|
|||
|
By:
|
/s/ Brian Meyers
|
||
|
Brian Meyers
|
|||
|
Executive Vice President, Chief Financial Officer and Treasurer
|
|||
|
(Principal Accounting and Financial Officer)
|
|||
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.
|
Signature
|
Title
|
Date
|
||
|
*
|
Chief Executive Officer and Director
|
April 24, 2019
|
||
| Scott M. Shaw | ||||
|
/s/ Brian K. Meyers
|
Executive Vice President, Chief Financial Officer and Treasurer (Principal Accounting and Financial Officer)
|
April 24, 2019
|
||
|
Brian K. Meyers
|
||||
|
*
|
Director
|
April 24, 2019
|
||
|
Alvin O. Austin
|
||||
|
*
|
Director
|
April 24, 2019
|
||
|
Peter S. Burgess
|
||||
|
*
|
Director
|
April 24, 2019
|
||
|
James J. Burke, Jr.
|
||||
|
*
|
Director
|
April 24, 2019
|
||
|
Celia H. Currin
|
||||
|
*
|
Director
|
April 24, 2019
|
||
|
Ronald E. Harbour
|
|
|
||
|
*
|
Director
|
April 24, 2019
|
||
|
J. Barry Morrow
|
|
*By:
|
/s/ Brian K. Meyers |
|
|
Brian K. Meyers
|
||
| (Attorney-in-Fact) |
INDEX TO CONSOLIDATED FINANCIAL STATEMENTS
|
Page Number
|
|
|
Reports of Independent Registered Public Accounting Firm
|
F-2
|
|
Consolidated Balance Sheets as of December 31, 2018 and 2017
|
F-4
|
|
Consolidated Statements of Operations for the years ended December 31, 2018, 2017 and 2016
|
F-6
|
|
Consolidated Statements of Comprehensive Loss for the years ended December 31, 2018, 2017 and 2016
|
F-7
|
|
Consolidated Statements of Changes in Stockholders' Equity for the years ended December 31, 2018, 2017 and 2016
|
F-8
|
|
Consolidated Statements of Cash Flows for the years ended December 31, 2018, 2017 and 2016
|
F-9
|
|
Notes to Consolidated Financial Statements
|
F-11
|
|
Schedule II-Valuation and Qualifying Accounts
|
F-33
|
To the Stockholders and Board of Directors of Lincoln Educational Services Corporation
Opinion on the Financial Statements
We have audited the accompanying consolidated balance sheets of Lincoln Educational Services Corporation and subsidiaries (the “Company”) as of
December 31, 2018 and 2017, and the related consolidated statements of operations, comprehensive loss, changes in stockholders’ equity, and cash flows for each of the three years in the period ended December 31, 2018, and the related notes and the schedule listed in the Index at Item 15 (collectively referred to as the "financial statements"). In our opinion, the financial statements present fairly, in all material respects, the financial position of the Company as of December 31, 2018 and 2017,
and the results of its operations and its cash flows for each of the three years in the period ended December 31, 2018, in conformity with accounting principles generally accepted in the United States of America.
We have also audited, in accordance with the standards of
the Public Company Accounting Oversight Board (United States) (PCAOB), the Company's internal control over financial reporting as of December 31, 2018, based on criteria established in Internal Control — Integrated Framework (2013) issued by the Committee
of Sponsoring Organizations of the Treadway Commission and our report dated March 12, 2019, expressed an unqualified opinion on the Company's internal control over financial reporting.
Basis for Opinion
These financial statements are the responsibility of the
Company's management. Our responsibility is to express an opinion on the Company's financial statements based on our audits. We are a public accounting firm registered with the PCAOB and are required to be independent with respect to the
Company in accordance with the U.S. federal securities laws and the applicable rules and regulations of the Securities and Exchange Commission and the PCAOB.
We conducted our audits in accordance with the standards
of the PCAOB. Those standards require that we plan and perform the audit to obtain reasonable assurance about whether the financial statements are free of material misstatement, whether due to error or fraud. Our audits included
performing procedures to assess the risks of material misstatement of the financial statements, whether due to error or fraud, and performing procedures that respond to those risks. Such procedures included examining, on a test basis,
evidence regarding the amounts and disclosures in the financial statements. Our audits also included evaluating the accounting principles used and significant estimates made by management, as well as evaluating the overall presentation of
the financial statements. We believe that our audits provide a reasonable basis for our opinion.
/s/ DELOITTE & TOUCHE LLP
Parsippany, New Jersey
March 12, 2019
March 12, 2019
We have served as the Company’s auditors since 1999.
REPORT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
To the Stockholders and Board of Directors of Lincoln Educational Services Corporation
Opinion on Internal Control over Financial
Reporting
We have audited the internal control over financial
reporting of Lincoln Educational Services Corporation and subsidiaries (the “Company”) as of December 31, 2018, based on criteria established
in Internal Control — Integrated Framework (2013) issued by the Committee of Sponsoring Organizations of the Treadway Commission (COSO). In our opinion, the Company maintained, in all material respects, effective internal control over financial reporting
as of December 31, 2018, based on criteria established in Internal Control — Integrated Framework (2013) issued by COSO.
We have also audited, in accordance with the standards of
the Public Company Accounting Oversight Board (United States) (PCAOB), the consolidated financial statements as of and for the year ended December 31, 2018, of the Company and our report dated March 12, 2019, expressed an unqualified
opinion on those financial statements.
Basis for Opinion
The Company’s management is responsible for maintaining
effective internal control over financial reporting and for its assessment of the effectiveness of internal control over financial reporting, included in the accompanying Management’s Report on Internal Control Over Financial Reporting. Our
responsibility is to express an opinion on the Company’s internal control over financial reporting based on our audit. We are a public accounting firm registered with the PCAOB and are required to be independent with respect to the Company
in accordance with the U.S. federal securities laws and the applicable rules and regulations of the Securities and Exchange Commission and the PCAOB.
We conducted our audit in accordance with the standards of
the PCAOB. Those standards require that we plan and perform the audit to obtain reasonable assurance about whether effective internal control over financial reporting was maintained in all material respects. Our audit included obtaining an
understanding of internal control over financial reporting, assessing the risk that a material weakness exists, testing and evaluating the design and operating effectiveness of internal control based on the assessed risk, and performing
such other procedures as we considered necessary in the circumstances. We believe that our audit provides a reasonable basis for our opinion.
Definition and Limitations of Internal
Control over Financial Reporting
A company’s internal control over financial reporting is a
process designed to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles. A company’s
internal control over financial reporting includes those policies and procedures that (1) pertain to the maintenance of records that, in reasonable detail, accurately and fairly reflect the transactions and dispositions of the assets of the
company; (2) provide reasonable assurance that transactions are recorded as necessary to permit preparation of financial statements in accordance with generally accepted accounting principles, and that receipts and expenditures of the
company are being made only in accordance with authorizations of management and directors of the company; and (3) provide reasonable assurance regarding prevention or timely detection of unauthorized acquisition, use, or disposition of the
company’s assets that could have a material effect on the financial statements.
Because of its inherent limitations, internal control over
financial reporting may not prevent or detect misstatements. Also, projections of any evaluation of effectiveness to future periods are subject to the risk that controls may become inadequate because of changes in conditions, or that the
degree of compliance with the policies or procedures may deteriorate.
/s/ Deloitte & Touche LLP
Parsippany, New Jersey
March 12, 2019
LINCOLN EDUCATIONAL SERVICES CORPORATION AND SUBSIDIARIES
CONSOLIDATED BALANCE SHEETS
(In thousands, except share amounts)
|
December 31,
|
||||||||
|
2018
|
2017
|
|||||||
|
ASSETS
|
||||||||
|
CURRENT ASSETS:
|
||||||||
|
Cash and cash equivalents
|
$
|
17,571
|
$
|
14,563
|
||||
|
Restricted cash
|
16,775
|
7,189
|
||||||
|
Accounts receivable, less allowance of $15,590 and $12,806 at December 31, 2018 and 2017, respectively
|
18,675
|
15,791
|
||||||
|
Inventories
|
1,451
|
1,657
|
||||||
|
Prepaid income taxes and income taxes receivable
|
178
|
207
|
||||||
|
Assets held for sale
|
-
|
2,959
|
||||||
|
Prepaid expenses and other current assets
|
2,461
|
2,352
|
||||||
|
Total current assets
|
57,111
|
44,718
|
||||||
|
PROPERTY, EQUIPMENT AND FACILITIES - At cost, net of accumulated depreciation and amortization of $171,109 and $163,946 at December 31, 2018 and 2017, respectively
|
49,292
|
52,866
|
||||||
|
OTHER ASSETS:
|
||||||||
|
Noncurrent restricted cash
|
11,600
|
32,802
|
||||||
|
Noncurrent receivables, less allowance of $1,403 and $978 at December 31, 2018 and 2017, respectively
|
12,175
|
8,928
|
||||||
|
Deferred income taxes, net
|
424
|
424
|
||||||
|
Goodwill
|
14,536
|
14,536
|
||||||
|
Other assets, net
|
900
|
939
|
||||||
|
Total other assets
|
39,635
|
57,629
|
||||||
|
TOTAL
|
$
|
146,038
|
$
|
155,213
|
||||
See notes to consolidated financial statements.
LINCOLN EDUCATIONAL SERVICES CORPORATION AND SUBSIDIARIES
CONSOLIDATED BALANCE SHEETS
(In thousands, except share amounts)
(Continued)
|
December 31,
|
||||||||
|
2018
|
2017
|
|||||||
|
LIABILITIES AND STOCKHOLDERS' EQUITY
|
||||||||
|
CURRENT LIABILITIES:
|
||||||||
|
Current portion of credit agreement
|
$
|
15,000
|
$
|
-
|
||||
|
Unearned tuition
|
22,545
|
24,647
|
||||||
|
Accounts payable
|
14,107
|
10,508
|
||||||
|
Accrued expenses
|
10,605
|
11,771
|
||||||
|
Other short-term liabilities
|
2,324
|
558
|
||||||
|
Total current liabilities
|
64,581
|
47,484
|
||||||
|
NONCURRENT LIABILITIES:
|
||||||||
|
Long-term credit agreement
|
33,769
|
52,593
|
||||||
|
Pension plan liabilities
|
4,271
|
4,437
|
||||||
|
Accrued rent
|
3,410
|
4,338
|
||||||
|
Other long-term liabilities
|
141
|
548
|
||||||
|
Total liabilities
|
106,172
|
109,400
|
||||||
|
COMMITMENTS AND CONTINGENCIES
|
||||||||
|
STOCKHOLDERS' EQUITY:
|
||||||||
|
Preferred stock, no par value - 10,000,000 shares authorized, no shares issued and outstanding at December 31, 2018 and 2017
|
-
|
-
|
||||||
|
Common stock, no par value - authorized 100,000,000 shares at December 31, 2018 and 2017, issued and
outstanding 30,552,333 shares at December 31, 2018 and 30,624,407 shares at December 31, 2017
|
141,377
|
141,377
|
||||||
|
Additional paid-in capital
|
29,484
|
29,334
|
||||||
|
Treasury stock at cost - 5,910,541 shares at December 31, 2018 and 2017
|
(82,860
|
)
|
(82,860
|
)
|
||||
|
Accumulated deficit
|
(44,073
|
)
|
(37,528
|
)
|
||||
|
Accumulated other comprehensive loss
|
(4,062
|
)
|
(4,510
|
)
|
||||
|
Total stockholders' equity
|
39,866
|
45,813
|
||||||
|
TOTAL
|
$
|
146,038
|
$
|
155,213
|
||||
See notes to consolidated financial statements.
LINCOLN EDUCATIONAL SERVICES CORPORATION AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF OPERATIONS
(In thousands, except per share amounts)
|
Year Ended December 31,
|
||||||||||||
|
2018
|
2017
|
2016
|
||||||||||
|
REVENUE
|
$
|
263,200
|
$
|
261,853
|
$
|
285,559
|
||||||
|
COSTS AND EXPENSES:
|
||||||||||||
|
Educational services and facilities
|
125,373
|
129,413
|
144,426
|
|||||||||
|
Selling, general and administrative
|
141,244
|
138,779
|
148,447
|
|||||||||
|
Loss (gain) on sale of assets
|
537
|
(1,623
|
)
|
233
|
||||||||
|
Impairment of goodwill and long-lived assets
|
-
|
-
|
21,367
|
|||||||||
|
Total costs and expenses
|
267,154
|
266,569
|
314,473
|
|||||||||
|
OPERATING LOSS
|
(3,954
|
)
|
(4,716
|
)
|
(28,914
|
)
|
||||||
|
OTHER:
|
||||||||||||
|
Interest income
|
31
|
56
|
155
|
|||||||||
|
Interest expense
|
(2,422
|
)
|
(7,098
|
)
|
(6,131
|
)
|
||||||
|
Other income
|
-
|
-
|
6,786
|
|||||||||
|
LOSS BEFORE INCOME TAXES
|
(6,345
|
)
|
(11,758
|
)
|
(28,104
|
)
|
||||||
|
PROVISION (BENEFIT) FOR INCOME TAXES
|
200
|
(274
|
)
|
200
|
||||||||
|
NET LOSS
|
$
|
(6,545
|
)
|
$
|
(11,484
|
)
|
$
|
(28,304
|
)
|
|||
|
Basic
|
||||||||||||
|
Net loss per share
|
$
|
(0.27
|
)
|
$
|
(0.48
|
)
|
$
|
(1.21
|
)
|
|||
|
Diluted
|
||||||||||||
|
Net loss per share
|
$
|
(0.27
|
)
|
$
|
(0.48
|
)
|
$
|
(1.21
|
)
|
|||
|
Weighted average number of common shares outstanding:
|
||||||||||||
|
Basic
|
24,423
|
23,906
|
23,453
|
|||||||||
|
Diluted
|
24,423
|
23,906
|
23,453
|
|||||||||
See notes to consolidated financial statements
LINCOLN EDUCATIONAL SERVICES CORPORATION AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF COMPREHENSIVE LOSS
(In thousands)
|
December 31,
|
||||||||||||
|
2018
|
2017
|
2016
|
||||||||||
|
Net loss
|
$
|
(6,545
|
)
|
$
|
(11,484
|
)
|
$
|
(28,304
|
)
|
|||
|
Other comprehensive income
|
||||||||||||
|
Employee pension plan adjustments
|
448
|
1,591
|
971
|
|||||||||
|
Comprehensive loss
|
$
|
(6,097
|
)
|
$
|
(9,893
|
)
|
$
|
(27,333
|
)
|
|||
See notes to consolidated financial statements
LINCOLN EDUCATIONAL SERVICES CORPORATION AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF CHANGES IN STOCKHOLDERS’ EQUITY
(In thousands, except share amounts)
|
Retained
|
Accumulated
|
|||||||||||||||||||||||||||
|
Additional
|
Earnings
|
Other
|
||||||||||||||||||||||||||
|
Common Stock
|
Paid-in
|
Treasury
|
(Accumulated
|
Comprehensive
|
||||||||||||||||||||||||
|
Shares
|
Amount
|
Capital
|
Stock
|
Deficit)
|
Loss
|
Total
|
||||||||||||||||||||||
|
BALANCE - January 1, 2016
|
29,727,555
|
$
|
141,377
|
$
|
27,292
|
$
|
(82,860
|
)
|
$
|
2,260
|
$
|
(7,072
|
)
|
$
|
80,997
|
|||||||||||||
|
Net loss
|
-
|
-
|
-
|
-
|
(28,304
|
)
|
-
|
(28,304
|
)
|
|||||||||||||||||||
|
Employee pension plan adjustments
|
-
|
-
|
-
|
-
|
-
|
971
|
971
|
|||||||||||||||||||||
|
Stock-based compensation
expense Restricted stock
|
1,029,267
|
-
|
1,440
|
-
|
-
|
-
|
1,440
|
|||||||||||||||||||||
|
Net share settlement for equity-based compensation
|
(71,805
|
)
|
-
|
(178
|
)
|
-
|
-
|
-
|
(178
|
)
|
||||||||||||||||||
|
BALANCE - December 31, 2016
|
30,685,017
|
141,377
|
28,554
|
(82,860
|
)
|
(26,044
|
)
|
(6,101
|
)
|
54,926
|
||||||||||||||||||
|
Net loss
|
-
|
-
|
-
|
-
|
(11,484
|
)
|
-
|
(11,484
|
)
|
|||||||||||||||||||
|
Employee pension plan adjustments
|
-
|
-
|
-
|
-
|
-
|
1,591
|
1,591
|
|||||||||||||||||||||
|
Stock-based compensation expense Restricted stock
|
128,810
|
-
|
1,220
|
-
|
-
|
-
|
1,220
|
|||||||||||||||||||||
|
Net share settlement for equity-based compensation
|
(189,420
|
)
|
-
|
(440
|
)
|
-
|
-
|
-
|
(440
|
)
|
||||||||||||||||||
|
BALANCE - December 31, 2017
|
30,624,407
|
141,377
|
29,334
|
(82,860
|
)
|
(37,528
|
)
|
(4,510
|
)
|
45,813
|
||||||||||||||||||
|
Net loss
|
-
|
-
|
-
|
-
|
(6,545
|
)
|
-
|
(6,545
|
)
|
|||||||||||||||||||
|
Employee pension plan adjustments
|
-
|
-
|
-
|
-
|
-
|
448
|
448
|
|||||||||||||||||||||
|
Stock-based compensation expense
|
||||||||||||||||||||||||||||
|
Restricted stock
|
135,568
|
-
|
522
|
-
|
-
|
-
|
522
|
|||||||||||||||||||||
|
Net share settlement for equity-based compensation
|
(207,642
|
)
|
-
|
(372
|
)
|
-
|
-
|
-
|
(372
|
)
|
||||||||||||||||||
|
BALANCE - December 31, 2018
|
30,552,333
|
$
|
141,377
|
$
|
29,484
|
$
|
(82,860
|
)
|
$
|
(44,073
|
)
|
$
|
(4,062
|
)
|
$
|
39,866
|
||||||||||||
See notes to consolidated financial statements.
LINCOLN EDUCATIONAL SERVICES CORPORATION AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF CASH FLOWS
(In thousands)
|
Year Ended December 31,
|
||||||||||||
|
2018
|
2017
|
2016
|
||||||||||
|
CASH FLOWS FROM OPERATING ACTIVITIES:
|
||||||||||||
|
Net loss
|
$
|
(6,545
|
)
|
$
|
(11,484
|
)
|
$
|
(28,304
|
)
|
|||
|
Adjustments to reconcile net loss to net cash used in operating activities:
|
||||||||||||
|
Depreciation and amortization
|
8,421
|
8,702
|
11,066
|
|||||||||
|
Amortization of deferred finance costs
|
369
|
583
|
949
|
|||||||||
|
Write-off of deferred finance charges
|
-
|
2,161
|
-
|
|||||||||
|
Deferred income taxes
|
-
|
(424
|
)
|
-
|
||||||||
|
Loss (gain) on disposition of assets
|
537
|
(1,623
|
)
|
223
|
||||||||
|
Gain on capital lease termination, net
|
-
|
-
|
(6,710
|
)
|
||||||||
|
Impairment of goodwill and long-lived assets
|
-
|
-
|
21,367
|
|||||||||
|
Fixed asset donation
|
-
|
(19
|
)
|
(123
|
)
|
|||||||
|
Provision for doubtful accounts
|
17,705
|
13,720
|
14,592
|
|||||||||
|
Stock-based compensation expense
|
522
|
1,220
|
1,440
|
|||||||||
|
Deferred rent
|
(958
|
)
|
(1,312
|
)
|
(489
|
)
|
||||||
|
(Increase) decrease in assets:
|
||||||||||||
|
Accounts receivable
|
(23,836
|
)
|
(15,733
|
)
|
(15,700
|
)
|
||||||
|
Inventories
|
206
|
30
|
201
|
|||||||||
|
Prepaid income taxes and income taxes receivable
|
29
|
55
|
87
|
|||||||||
|
Prepaid expenses and current assets
|
(109
|
)
|
532
|
412
|
||||||||
|
Other assets
|
(191
|
)
|
(1,163
|
)
|
(1,701
|
)
|
||||||
|
Increase (decrease) in liabilities:
|
||||||||||||
|
Accounts payable
|
3,753
|
(3,193
|
)
|
742
|
||||||||
|
Accrued expenses
|
(1,136
|
)
|
(3,613
|
)
|
1,195
|
|||||||
|
Unearned tuition
|
(2,102
|
)
|
(131
|
)
|
(6,854
|
)
|
||||||
|
Other liabilities
|
1,641
|
371
|
1,500
|
|||||||||
|
Total adjustments
|
4,851
|
163
|
22,197
|
|||||||||
|
Net cash used in operating activities
|
(1,694
|
)
|
(11,321
|
)
|
(6,107
|
)
|
||||||
|
CASH FLOWS FROM INVESTING ACTIVITIES:
|
||||||||||||
|
Capital expenditures
|
(4,697
|
)
|
(4,755
|
)
|
(3,596
|
)
|
||||||
|
Proceeds from sale of property and equipment
|
2,348
|
15,462
|
451
|
|||||||||
|
Net cash (used in) provided by investing activities
|
(2,349
|
)
|
10,707
|
(3,145
|
)
|
|||||||
|
CASH FLOWS FROM FINANCING ACTIVITIES:
|
||||||||||||
|
Proceeds from borrowings
|
31,000
|
75,900
|
-
|
|||||||||
|
Payments on borrowings
|
(35,099
|
)
|
(66,766
|
)
|
(387
|
)
|
||||||
|
Payment of deferred finance fees
|
(94
|
)
|
(1,241
|
)
|
(645
|
)
|
||||||
|
Net share settlement for equity-based compensation
|
(372
|
)
|
(440
|
)
|
(178
|
)
|
||||||
|
Payments under capital lease obligations
|
-
|
-
|
(2,864
|
)
|
||||||||
|
Net cash (used in) provided by financing activities
|
(4,565
|
)
|
7,453
|
(4,074
|
)
|
|||||||
|
NET (DECREASE) INCREASE IN CASH, CASH EQUIVALENTS AND RESTRICTED CASH
|
(8,608
|
)
|
6,839
|
(13,326
|
)
|
|||||||
|
CASH, CASH EQUIVALENTS AND RESTRICTED CASH—Beginning of year
|
54,554
|
47,715
|
61,041
|
|||||||||
|
CASH, CASH EQUIVALENTS AND RESTRICTED CASH—End of year
|
$
|
45,946
|
$
|
54,554
|
$
|
47,715
|
||||||
See notes to consolidated financial statements.
LINCOLN EDUCATIONAL SERVICES CORPORATION AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF CASH FLOWS
(In thousands)
(Continued)
|
Year Ended December 31,
|
||||||||||||
|
2018
|
2017
|
2016
|
||||||||||
|
SUPPLEMENTAL DISCLOSURES OF CASH FLOW INFORMATION:
|
||||||||||||
|
Cash paid during the year for:
|
||||||||||||
|
Interest
|
$
|
2,030
|
$
|
2,790
|
$
|
5,265
|
||||||
|
Income taxes
|
$
|
191
|
$
|
139
|
$
|
150
|
||||||
|
SUPPLEMENTAL SCHEDULE OF NONCASH INVESTING AND FINANCING ACTIVITIES:
|
||||||||||||
|
Liabilities accrued for or noncash purchases of fixed assets
|
$
|
265
|
$
|
1,447
|
$
|
2,048
|
||||||
See notes to consolidated financial statements.
LINCOLN EDUCATIONAL SERVICES CORPORATION AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
AS OF DECEMBER 31, 2018 AND 2017 AND FOR THE THREE YEARS ENDED DECEMBER 31, 2018
(In thousands, except share and per share amounts, schools, training sites, campuses and unless otherwise stated)
| 1. |
SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES
|
Business Activities— Lincoln Educational Services Corporation and its subsidiaries (collectively, the “Company”, “we”, “our” and “us”, as applicable) provide diversified career-oriented post-secondary education to recent
high school graduates and working adults. The Company, which currently operates 22 schools in 14 states, offers programs in automotive technology, skilled trades (which include HVAC, welding and computerized numerical control and
electronic systems technology, among other programs), healthcare services (which include nursing, dental assistant, medical administrative assistant and pharmacy technician, among other programs), hospitality services (which include culinary,
therapeutic massage, cosmetology and aesthetics) and business and information technology. The schools operate under Lincoln Technical Institute, Lincoln College of Technology, Lincoln Culinary Institute, and Euphoria Institute of Beauty Arts
and Sciences and associated brand names. Most of the campuses serve major metropolitan markets and each typically offers courses in multiple areas of study. Five of the campuses are destination schools, which attract students from across
the United States and, in some cases, from abroad. The Company’s other campuses primarily attract students from their local communities and surrounding areas. All of the campuses are nationally or regionally accredited and are eligible to
participate in federal financial aid programs by the U.S. Department of Education (the “DOE”) and applicable state education agencies and accrediting commissions which allow students to apply for and access federal student loans as well as
other forms of financial aid.
The Company’s business is organized into three reportable business segments: (a) Transportation and Skilled Trades, (b) Healthcare and Other
Professions (“HOPS”), and (c) Transitional, which refers to businesses that have been or are currently being taught out.
On July 9, 2018, New England Institute of Technology at Palm Beach, Inc. (“NEIT”), a wholly-owned subsidiary of the Company, entered into a commercial
contract (the “Sale Agreement”) with Elite Property Enterprise, LLC, pursuant to which NEIT agreed to sell to Elite Property Enterprise, LLC the real property owned by NEIT located at 1126 53rd Court North, Mangonia Park, Palm Beach County,
Florida and the improvements and certain personal property located thereon (the “Mangonia Park Property”), for a cash purchase price of $2,550,000. On August 23, 2018, NEIT, consummated the sale of the Mangonia Park Property. At the
closing, NEIT paid a real estate brokerage fee equal to 5% of the gross sales price and other customary closing costs and expenses. Pursuant to the provisions of the Company’s Credit Agreement with its lender, Sterling National Bank, the net
cash proceeds of the sale of the Mangonia Park Property were deposited into an account with the lender to serve as additional security for loans and other financial accommodations provided to the Company and its subsidiaries under the credit
facility. In December 2018, the funds were used to repay the outstanding principal balance of the loans outstanding under the credit facility and such repayment permanently reduced the revolving loan availability under the credit facility
designated as Facility 1 under the Company’s Credit Agreement to $22.7 million.
Effective December 31, 2018, the Company completed the teach-out and ceased operation of its Lincoln College of New England (“LCNE”) campus at
Southington, Connecticut. The decision to close the LCNE campus followed the previously reported placement of LCNE on probation by the college’s institutional accreditor, the New England Association of Schools and Colleges (“NEASC”). After
evaluating alternative options, the Company concluded that teaching out and closing the campus was in the best interest of the Company and its students. Subsequent to formalizing the LCNE closure decision in August 2018, the Company
partnered with Goodwin College, another NEASC- accredited institution in the region, to assist LCNE students to complete their programs of study. The majority of the LCNE students will continue their education at Goodwin College thereby
limiting some of the Company’s closing costs. The revenue, net loss and ending population of LCNE, as of December 31, 2017, were $8.4 million, $1.6 million and 397 students, respectively. [The Company recorded closing cost associated with
the closure of the LCNE campus in 2018 of approximately $1.6 million in connection with the termination of the LCNE campus lease, which is the net present value of the remaining obligation, to be paid in equal monthly installments through
January 2020 and approximately $700,000 of severance payments. LCNE results, previously reported in the HOPS segment, are now included in the Transitional segment as of December 31, 2018.]
Liquidity—For the last several years, the Company and the proprietary school sector have faced deteriorating earnings. Government regulations have negatively impacted earnings by making it more difficult for
potential students to obtain loans, which, when coupled with the overall economic environment, have discouraged potential students from enrolling in post-secondary schools. In light of these factors, the Company has incurred significant
operating losses as a result of lower student population. Despite these challenges, the Company believes that its likely sources of cash should be sufficient to fund operations for the next twelve months and thereafter for the foreseeable
future. At December 31, 2018, the Company’s sources of cash primarily included cash and cash equivalents of $45.95 million (of which $28.4 million is restricted). Refer to Note 8 for more information on the Company’s revolving loan
facility. The Company is also continuing to take actions to improve cash flow by aligning its cost structure to its student population.
Principles of Consolidation—The
accompanying consolidated financial statements include the accounts of Lincoln Educational Services Corporation and its wholly-owned subsidiaries. All intercompany accounts and transactions have been eliminated.
Cash and Cash Equivalents—Cash and cash
equivalents include all cash balances and highly liquid short-term investments, which contain original maturities within three months of purchase. Pursuant to the Department of Education’s cash management requirements, the Company retains
funds from financial aid programs under Title IV of the Higher Education Act in segregated cash management accounts. The segregated accounts do not require a restriction on use of the cash and, as such, these amounts are classified as cash
and cash equivalents on the consolidated balance sheet.
Restricted Cash—Restricted cash consists of
deposits maintained at financial institutions under a cash collateral agreement pursuant to the Company’s credit agreement and cash collateral for letters of credit. The amounts of $11.6 million and $32.8 million as of December 31, 2018 and
2017, respectively, of restricted cash are included in long-term assets in the consolidated balance sheets as the restrictions are greater than one year. Refer to Note 8 for more information on the Company’s revolving credit facility.
Accounts Receivable—The Company reports
accounts receivable at net realizable value, which is equal to the gross receivable less an estimated allowance for uncollectible accounts. Noncurrent accounts receivable represent amounts due from graduates in excess of 12 months from the
balance sheet date.
Allowance for Uncollectible Accounts—Based
upon experience and judgment, an allowance is established for uncollectible accounts with respect to tuition receivables. In establishing the allowance for uncollectible accounts, the Company considers, among other things, current and
expected economic conditions, a student's status (in-school or out-of-school), whether or not a student is currently making payments, and overall collection history. Changes in trends in any of these areas may impact the allowance for
uncollectible accounts. The receivables balances of withdrawn students with delinquent obligations are reserved for based on our collection history.
Inventories—Inventories consist mainly of
textbooks, computers, tools and supplies. Inventories are valued at the lower of cost or market on a first-in, first-out basis.
Property, Equipment and Facilities—Depreciation and Amortization—Property, equipment and facilities are stated at cost. Major renewals and improvements are capitalized,
while repairs and maintenance are expensed when incurred. Upon the retirement, sale or other disposition of assets, costs and related accumulated depreciation are eliminated from the accounts and any gain or loss is reflected in operating
(loss) income. For financial statement purposes, depreciation of property and equipment is computed using the straight-line method over the estimated useful lives of the assets, and amortization of leasehold improvements is computed over the
lesser of the term of the lease or its estimated useful life.
Rent Expense—Rent expense related to
operating leases where scheduled rent increases exist, is determined by expensing the total amount of rent due over the life of the operating lease on a straight-line basis. The difference between the rent paid under the terms of the lease
and the rent expensed on a straight-line basis is included in accrued rent and other long-term liabilities on the accompanying consolidated balance sheets.
Advertising Costs—Costs related to
advertising are expensed as incurred and approximated $29.4 million, $27.0 million and $28.0 million for the years ended December 31, 2018, 2017 and 2016, respectively. These amounts are included in selling, general and administrative
expenses in the consolidated statements of operations.
Goodwill and Other Intangible Assets— The
Company tests its goodwill for impairment annually, or whenever events or changes in circumstances indicate an impairment may have occurred, by comparing its reporting unit’s carrying value to its implied fair value. Impairment may result
from, among other things, deterioration in the performance of the acquired business, adverse market conditions, adverse changes in applicable laws or regulations, reductions in market value of the Company, and changes that restrict the
activities of the acquired business, and a variety of other circumstances. If the Company determines that an impairment has occurred, it is required to record a write-down of the carrying value and charge the impairment as an operating
expense in the period the determination is made. In evaluating the recoverability of the carrying value of goodwill and other indefinite-lived intangible assets, the Company must make assumptions regarding estimated future cash flows and
other factors to determine the fair value of the acquired assets. Changes in strategy or market conditions could significantly impact these judgments in the future and require an adjustment to the recorded balances.
When we test goodwill balances for impairment, we estimate the fair value of each of our reporting units based on projected future operating results and
cash flows, market assumptions and/or comparative market multiple methods. Determining fair value requires significant estimates and assumptions based on an evaluation of a number of factors, such as marketplace participants, relative market
share, new student interest, student retention, future expansion or contraction expectations, amount and timing of future cash flows and the discount rate applied to the cash flows. Projected future operating results and cash flows used for
valuation purposes do reflect improvements relative to recent historical periods with respect to, among other things, modest revenue growth and operating margins. Although we believe our projected future operating results and cash flows and
related estimates regarding fair values are based on reasonable assumptions, historically projected operating results and cash flows have not always been achieved. The failure of one of our reporting units to achieve projected operating
results and cash flows in the near term or long term may reduce the estimated fair value of the reporting unit below its carrying value and result in the recognition of a goodwill impairment charge. Significant management judgment is
necessary to evaluate the impact of operating and macroeconomic changes and to estimate future cash flows. Assumptions used in our impairment evaluations, such as forecasted growth rates and our cost of capital, are based on the best
available market information and are consistent with our internal forecasts and operating plans. In addition to cash flow estimates, our valuations are sensitive to the rate used to discount cash flows and future growth assumptions.
At December 31, 2018 and 2017, we conducted our annual test for goodwill impairment and determined we did not have an impairment. At December 31, 2016,
we conducted our annual test for goodwill impairment and determined we had an impairment of $9.9 million.
Impairment of Long-Lived Assets—The Company reviews the carrying value of its long-lived assets and identifiable intangibles for possible impairment whenever events or changes in
circumstances indicate that the carrying amounts may not be recoverable. The Company evaluates long-lived assets for impairment by examining estimated future cash flows using Level 3 inputs. These cash flows are evaluated by using weighted
probability techniques as well as comparisons of past performance against projections. Assets may also be evaluated by identifying independent market values. If the Company determines that an asset’s carrying value is impaired, it will record
a write-down of the carrying value of the asset and charge the impairment as an operating expense in the period in which the determination is made.
The Company concluded that for the years ended December 31, 2018 and 2017, there were no long-lived asset impairments.
The Company concluded that, for the year ended December 31, 2016, there was sufficient evidence to conclude that there was an impairment of certain
long-lived assets which resulted in a pre-tax charge of $11.5 million.
Concentration of Credit Risk—Financial
instruments that potentially subject the Company to concentrations of credit risk consist principally of temporary cash investments. The Company places its cash and cash equivalents with high credit quality financial institutions. The
Company's cash balances with financial institutions typically exceed the Federal Deposit Insurance limit of $0.25 million. The Company's cash balances on deposit at December 31, 2018, exceeded the balance insured by the FDIC Corporation
(“FDIC”) by approximately $45.3 million. The Company has not experienced any losses to date on its invested cash.
The Company extends credit for tuition and fees to many of its students. The credit risk with respect to these accounts receivable is mitigated through
the students' participation in federally funded financial aid programs unless students withdraw prior to the receipt of federal funds for those students. In addition, the remaining tuition receivables are primarily comprised of smaller
individual amounts due from students.
With respect to student receivables, the Company had no significant concentrations of credit risk as of December 31, 2018 and 2017.
Use of Estimates in the Preparation of Financial
Statements—The preparation of financial statements in conformity with generally accepted accounting principles in the United States (“GAAP’) requires management to make estimates and assumptions that affect the reported amounts of
assets and liabilities 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 period. On an ongoing basis, the Company evaluates
the estimates and assumptions, including those related to revenue recognition, bad debts, impairments, fixed assets, income taxes, benefit plans and certain accruals. Actual results could differ from those estimates.
Stock-Based Compensation Plans—The Company
measures the value of stock options on the grant date at fair value, using the Black-Scholes option valuation model. The Company amortizes the fair value of stock options, net of estimated forfeitures, utilizing straight-line amortization of
compensation expense over the requisite service period of the grant.
The Company measures the value of service and performance-based restricted stock on the fair value of a share of common stock on the date of the grant.
The Company amortizes the fair value of service-based restricted stock utilizing straight-line amortization of compensation expense over the requisite service period of the grant.
The Company amortizes the fair value of the performance-based restricted stock based on determination of the probable outcome of the performance
condition. If the performance condition is expected to be met, then the Company amortizes the fair value of the number of shares expected to vest utilizing straight-line basis over the requisite performance period of the grant. However, if
the associated performance condition is not expected to be met, then the Company does not recognize the stock-based compensation expense.
Income Taxes—The Company accounts for income taxes in accordance with ASC Topic 740, “Income Taxes” (“ASC 740”). This statement requires an asset and a liability approach for measuring deferred taxes based on temporary differences between the financial statement and
tax bases of assets and liabilities existing at each balance sheet date using enacted tax rates for years in which taxes are expected to be paid or recovered.
In accordance with ASC 740, the Company assesses our deferred tax asset to determine whether all or any portion of the asset is more likely than not
unrealizable. A valuation allowance is required to be established or maintained when, based on currently available information, it is more likely than not that all or a portion of a deferred tax asset will not be realized. In accordance with
ASC 740, our assessment considers whether there has been sufficient income in recent years and whether sufficient income is expected in future years in order to utilize the deferred tax asset. In evaluating the realizability of deferred
income tax assets, the Company considered, among other things, historical levels of income, expected future income, the expected timing of the reversals of existing temporary reporting differences, and the expected impact of tax planning
strategies that may be implemented to prevent the potential loss of future income tax benefits. Significant judgment is required in determining the future tax consequences of events that have been recognized in our consolidated financial
statements and/or tax returns. Differences between anticipated and actual outcomes of these future tax consequences could have a material impact on the Company’s consolidated financial position or results of operations. Changes in, among
other things, income tax legislation, statutory income tax rates, or future income levels could materially impact the Company’s valuation of income tax assets and liabilities and could cause our income tax provision to vary significantly
among financial reporting periods. See information regarding the impact of the Tax Cuts and Jobs Act in Note 11.
The Company recognizes accrued interest and penalties related to unrecognized tax benefits in income tax expense. During the years ended December 31,
2018 and 2017, we did not record any interest and penalties expense associated with uncertain tax positions.
Start-up Costs—Costs related to the start of new campuses are expensed as incurred.
New Accounting Pronouncements
In August 2018, the Financial Accounting Standards Board (the “FASB”) issued Accounting Standards Update (“ASU”) 2018-14, “Compensation – Retirement
Benefits – Defined Benefit Plans – General (Subtopic 715-20): Disclosure Framework—Changes to the Disclosure Requirements for Defined Benefit Plans.” This ASU adds, modifies and clarifies several disclosure requirements for employers that
sponsor defined benefit pension or other postretirement plans. This guidance is effective for fiscal years ending after December 15, 2020. Early adoption is permitted. We are currently assessing the effect that this ASU will have on our
consolidated financial statements and related disclosures.
In August 2018, the FASB issued ASU No. 2018-13, Disclosure
Framework - Changes to the Disclosure Requirements for Fair Value Measurement ("ASU No. 2018-13"), which eliminates, adds and modifies certain fair value measurement disclosure requirements of Accounting Standards Codification 820,
Fair Value Measurement. The amendments in this ASU are effective for fiscal years, and interim periods within those fiscal years, beginning after
December 15, 2019. Early adoption is permitted. The Company has decided not to early adopt the amendments. The adoption of ASU No. 2018-13 is not expected to have a material impact on the Company's consolidated financial statements.
In June 2018, FASB issued ASU No. 2018-07, Improvements to
Nonemployee Share-Based Payment Accounting ("ASU No. 2018-07") intended to reduce cost and complexity and to improve financial reporting for share-based payments issued to nonemployees. This ASU expands the scope of Topic 718, Compensation - Stock Compensation ("Topic 718"), to include
share-based payment transactions for acquiring goods and services from nonemployees. An entity should apply the requirements of Topic 718 to nonemployee awards except for specific guidance on inputs to an option pricing model and the
attribution of cost. The Company adopted ASU No. 2018-07 on January 1, 2019. The adoption of the standard did not have a material impact on the Company's consolidated financial statements. The Company will evaluate the impact of ASU No.
2018-07 for future awards to nonemployees subsequent to the effective date.
The FASB has issued ASU 2017-09, “Compensation—Stock Compensation (Topic 718) — Scope of Modification Accounting.” ASU 2017-09 applies to entities that
change the terms or conditions of a share-based payment award. The FASB adopted ASU 2017-09 to provide clarity and reduce diversity in practice as well as cost and complexity when applying the guidance in Topic 718, Compensation—Stock
Compensation, to the modification of the terms and conditions of a share-based payment award. The amendments provide guidance on determining which changes to the terms and conditions of share-based payment award require an entity to apply
modification accounting under Topic 718. ASU 2017-09 is effective for all entities for annual periods, including interim periods within those annual periods, beginning after December 15, 2017. Early adoption is permitted, including adoption
in any interim period, for public business entities for reporting periods for which financial statements have not yet been issued. The Company adopted ASU 2017-09 on January 1, 2018. The adoption of ASU 2017-09 had no impact on the Company’s
consolidated financial statements.
In February 2018, the FASB issued ASU 2018-02, “Income Statement-Reporting Comprehensive Income (Topic 220)”. The updated guidance allows entities to
reclassify stranded income tax effects resulting from the Tax Cuts and Jobs Act (the “Tax Act”) from accumulated other comprehensive income to retained earnings in their consolidated financial statements. Under the Tax Act, deferred taxes
were adjusted to reflect the reduction of the historical corporate income tax rate to the newly enacted corporate income tax rate, which left the tax effects on items within accumulated other comprehensive income stranded at an inappropriate
tax rate. The updated guidance is effective for fiscal years beginning after December 15, 2018, including interim periods within those years. Early adoption is permitted in any interim period and should be applied either in the period of
adoption or retrospectively to each period (or periods) in which the effect of the change in the U.S. federal corporate income tax rate in the Tax Act is recognized. The adoption of ASU No. 2018-02 is not expected to have a material impact on
the Company's consolidated financial statements.
In January 2017, the FASB issued ASU 2017-04, “Simplifying the Test for Goodwill Impairment.” ASU 2017-04 provides amendments to Accounting Standards
Code (“ASC”) 350, “Intangibles - Goodwill and Other,” which eliminate Step 2 from the goodwill impairment test. Entities should perform their goodwill impairment tests by comparing the fair value of a reporting unit with its carrying amount
and recognize an impairment charge for the amount by which the carrying amount exceeds the reporting unit's fair value. The amendments in this update are effective prospectively during interim and annual periods beginning after December 15,
2019, with early adoption permitted. The Company adopted the provisions of ASU 2017-04 as of April 1, 2017. As fair values for our operating units exceed their carrying values, there has been no impact on our consolidated financial
statements.
In January 2017, the FASB issued ASU No. 2017-01, Clarifying the Definition of a Business ("ASU No. 2017-01"). Under the amendments in this update, an
acquisition would have to include an input and a substantive process that together significantly contribute to the ability to create outputs to be considered a business. In acquisitions where outputs are not present, FASB has developed more
stringent criteria for sets of transferred assets and activities without outputs. The Company adopted ASU No. 2017-01 on January 1, 2018. There was no material impact associated with the adoption of the standard.
In November 2016, the FASB issued ASU 2016-18: “Statement of Cash Flows (Topic 230): Restricted Cash.” This guidance was issued to address the disparity
that exists in the classification and presentation of changes in restricted cash on the statement of cash flows. The amendments will require that the statement of cash flows explain the change during the period in total cash, cash equivalents
and restricted cash. The amendments are effective for financial statements issued for fiscal years beginning after December 15, 2017, and interim periods within those fiscal years. We adopted the new standard effective January 1, 2018. The
amendments were applied using a retrospective transition method to each period presented. The Company includes in its cash and cash-equivalent balances in the consolidated statements of cash flows those amounts that have been classified as
restricted cash and restricted cash equivalents for each of the periods presented.
In August 2016, the FASB issued ASU 2016-15, “Statement of Cash Flows (Topic 230): Classification of Certain Cash Receipts and Cash Payments” to
address eight specific cash flow issues with the objective of reducing the existing diversity in practice. The amendments are effective for financial statements issued for fiscal years beginning after December 15, 2017, and interim periods
within those fiscal years. We adopted the new standard effective January 1, 2018. The adoption of ASU 2016-15 had no impact on the Company’s consolidated financial statements.
In May 2014, the FASB issued a comprehensive new revenue recognition standard, ASU 2014-09, “Revenue from Contracts with Customers.” The amendments include ASU 2016-08, “Revenue from Contracts with Customers (Topic 606)—Principal versus Agent Considerations,” issued in March 2016, which
clarifies the implementation guidance for principal versus agent considerations in ASU 2014-09, and ASU 2016-10, “Revenue from Contracts with Customers (Topic 606)—Identifying Performance Obligations and Licensing,” issued in April 2016,
which amends the guidance in ASU No. 2014-09 related to identifying performance obligations. The new standard, which supersedes previously existing revenue recognition guidance, creates a five-step model for revenue recognition requiring
companies to exercise judgment when considering contract terms and relevant facts and circumstances. The five-step model requires (1) identifying the contract, (2) identifying the separate performance obligations in the contract, (3)
determining the transaction price, (4) allocating the transaction price to the separate performance obligations and (5) recognizing revenue at the time that each performance obligation is satisfied. The standard also requires expanded
disclosures surrounding revenue recognition. The standard is effective for fiscal periods beginning after December 15, 2017 and allows for either full retrospective or modified retrospective adoption.
We adopted the new standard effective January 1, 2018 using the modified retrospective approach. The Company’s revenue streams primarily consist of
tuition and related services provided to students over the course of the program as well as other transactional revenue such as tools. Based on the Company's assessment, the analysis of the contract portfolio under ASU 2016-10 results in the
revenue for the majority of the Company's student contracts being recognized over time which is consistent with the Company's previous revenue recognition model. For all student contracts, there is continuous transfer of control to the
student and the number of performance obligations under ASU 2016-10 is consistent with those identified under the existing standard. The impact of the adoption of the new standard on revenue recognition for student contracts is immaterial on
its consolidated financial statements. See additional information in Note 4.
In February 2016, the FASB issued ASU No. 2016-02, Leases ("ASU No. 2016-02"). This guidance amends the existing accounting considerations and
treatments for leases through the creation of Topic 842, Leases, to increase transparency and comparability among organizations by requiring the recognition of right-of-use (“ROU”) assets and lease liabilities on the balance sheet. Lessees
and lessors are required to disclose qualitative and quantitative information about leasing arrangements to enable a user of the financial statements to assess the amount, timing and uncertainty of cash flows arising from such leases.
In July 2018, FASB issued ASU No. 2018-10, Codification Improvements to Topic 842, Leases ("ASU No. 2018-10”) to further clarify, correct and
consolidate various areas previously discussed in ASU 2016-02. FASB also issued ASU No. 2018-11, Leases: Targeted Improvements ("ASU 2018-11") to provide entities another option for transition and lessors with a practical expedient. The
transition option allows entities to not apply ASU No. 2016-02 in comparative periods in the financial statements in the year of adoption. The practical expedient offers lessors an option to not separate non-lease components from the
associated lease components when certain criteria are met.
The amendments in ASU No. 2016-02, ASU No. 2018-10 and ASU No. 2018-11 are effective for fiscal years beginning after December 15, 2018, including
interim periods within those fiscal years, and allow for modified retrospective adoption with early adoption permitted. The Company adopted the amendments on January 1, 2019 using the modified retrospective approach and elected the transition
relief package of practical expedients by applying previous accounting conclusions under ASC 840 to all leases that existed prior to the transition date. As a result, the Company did not reassess (1) whether existing or expired contracts
contain leases, 2) lease classification for any existing or expired leases and 3) whether lease origination costs qualified as initial direct costs. The Company did not elect the practical expedient to use hindsight in determining a lease
term and impairment of the ROU assets at the adoption date. Additionally, the Company did not separate lease components from non-lease components for the specified asset classes.
The Company established a corporate implementation team, which engages with cross-functional representatives from all its businesses. The Company
utilized a bottom-up approach to analyze the impact of the standard on its lease contract portfolio by reviewing current accounting policies and practices to identify potential differences that would result from applying the requirements of
the new standard to lease arrangements. In addition, the Company identified and implemented the appropriate changes to its business processes, systems and controls to support recognition and disclosure under the new standard.
The Company determines if an arrangement is a lease at inception. A ROU asset represents the Company’s right to use an underlying asset for the lease
term and lease liabilities represent its obligation to make lease payments arising from the lease. Operating lease ROU assets and liabilities are to be recognized at commencement date based on the present value of lease payments over the
lease term. As most of the Company’s operating leases do not provide an implicit rate, the Company uses an incremental borrowing rate based on the information available on the adoption date in determining the present value of lease payments.
The implicit rate is to be applied when readily determinable. The operating lease ROU assets will also include any lease payments made and exclude lease incentives. Lease terms may include options to extend or terminate the lease when it is
reasonably certain that the Company will exercise that option. Lease expense for lease payments will be recognized on a straight-line basis over the lease term. Finance leases are to be included in property and equipment, other current
liabilities, and other long-term liabilities within the consolidated balance sheets. Upon adoption of the new leasing standards, we expect to recognize a lease liability between $46 million and $49 million and a right-to-use asset between $42
million and $45 million on our consolidated balance sheet. The impact to retained earnings is expected to be immaterial.
|
2.
|
FINANCIAL AID AND REGULATORY COMPLIANCE
|
Financial Aid
The Company’s schools and students participate in a variety of government-sponsored financial aid programs that assist students in paying the cost of
their education. The largest source of such support is the federal programs of student financial assistance under Title IV of the Higher Education Act of 1965, as amended, commonly referred to as the Title IV Programs, which are administered
by the U.S. Department of Education (the "DOE"). During the years ended December 31, 2018, 2017 and 2016, approximately 78%, 78% and 79%, respectively, of net revenues on a cash basis were indirectly derived from funds distributed under Title
IV Programs.
For the years ended December 31, 2018, 2017 and 2016, the Company calculated that no individual DOE reporting entity received more than 90% of its
revenue, determined on a cash basis under DOE regulations, from the Title IV Program funds. The Company’s calculations may be subject to review by the DOE. Under DOE regulations, a proprietary institution that derives more than 90% of its
total revenue from the Title IV Programs for two consecutive fiscal years becomes immediately ineligible to participate in the Title IV Programs and may not reapply for eligibility until the end of two fiscal years. An institution with
revenues exceeding 90% for a single fiscal year, will be placed on provisional certification and may be subject to other enforcement measures. If one of the Company’s institutions violated the 90/10 Rule and became ineligible to participate
in Title IV Programs but continued to disburse Title IV Program funds, the DOE would require the institution to repay all Title IV Program funds received by the institution after the effective date of the loss of eligibility.
Regulatory Compliance
To participate in Title IV Programs, a school must be authorized to offer its programs of instruction by relevant state education agencies, be
accredited by an accrediting commission recognized by the DOE and be certified as an eligible institution by the DOE. For this reason, the schools are subject to extensive regulatory requirements imposed by all of these entities. After the
schools receive the required certifications by the appropriate entities, the schools must demonstrate their compliance with the DOE regulations of the Title IV Programs on an ongoing basis. Included in these regulations is the requirement
that the institution must satisfy specific standards of financial responsibility. The DOE evaluates institutions for compliance with these standards each year, based upon the institution’s annual audited financial statements, as well as
following a change in ownership resulting in a change of control of the institution. The DOE calculates the institution's composite score for financial responsibility based on its (i) equity ratio, which measures the institution's capital
resources, ability to borrow and financial viability; (ii) primary reserve ratio, which measures the institution's ability to support current operations from expendable resources; and (iii) net income ratio, which measures the institution's
ability to operate at a profit. This composite score can range from -1 to +3.
The composite score must be at least 1.5 for the institution to be deemed financially responsible without the need for further oversight. If an
institution’s composite score is below 1.5, but is at least 1.0, it is in a category denominated by the DOE as “the zone.” Under the DOE regulations, institutions that are in the zone typically may be permitted by the DOE to continue to
participate in the Title IV Programs by choosing one of two alternatives: 1) the “Zone Alternative” under which the institution is required to make disbursements to students under the Heightened Cash Monitoring 1 (HCM1) payment method and to
notify the DOE within 10 days after the occurrence of certain oversight and financial events or 2) submit a letter of credit to the DOE in an amount determined by the DOE and equal to at least 50 percent of the Title IV Program funds received
by the institution during the most recent fiscal year. Under the HCM1 payment method, the institution is required to make Title IV Program disbursements to eligible students and parents before it requests or receives funds for the amount of
those disbursements from the DOE. As long as the student accounts are credited before the funding requests are initiated, the institution is permitted to draw down funds through the DOE’s electronic system for grants management and payments
for the amount of disbursements made to eligible students. Unlike the Heightened Cash Monitoring 2 (HCM2) and reimbursement payment methods, the HCM1 payment method typically does not require schools to submit documentation to the DOE and
wait for DOE approval before drawing down Title IV Program funds. If a Company’s composite score is below 1.5 for three consecutive years an institution may be able to continue to operate under the Zone Alternative; however, this
determination is made solely by the DOE. If an institution’s composite score drops below 1.0 in a given year or if its composite score remains between 1.0 and 1.4 for three or more consecutive years, it may be required to meet alternative
requirements for continuing to participate in Title IV Programs by submitting a letter of credit, complying with monitoring requirements, disbursing Title IV Program funds under the HCM1, HCM2, or reimbursement payment methods, and complying
with other requirements and conditions. Effective July 1, 2016, a school subject to HCM1, HCM2 or reimbursement payment methods must also pay any credit balances due to a student before drawing down funds for the amount of those
disbursements from the DOE, even if the student or his or her parent provides written authorization for the school to hold the credit balance. The DOE permits an institution to participate under the “Zone Alternative” for a period of up to
three consecutive fiscal years; however, this determination is made solely by the DOE. If an institution’s composite score is between 1.0 and 1.4 after three or more consecutive years with a composite score below 1.5, it may be required to
meet alternative requirements for continuing to participate in Title IV Programs by submitting a letter of credit, complying with monitoring requirements, disbursing Title IV Program funds under the HCM1, HCM2, or reimbursement payment
methods, and complying with other requirements and conditions.
If an institution's composite score is below 1.0, the institution is considered by the DOE to lack financial responsibility. If the DOE determines that
an institution does not satisfy the DOE's financial responsibility standards, depending on its composite score and other factors, that institution may establish its financial responsibility on an alternative basis by, among other things:
| · |
Posting a letter of credit in an amount determined by the DOE equal to at least 50% of the total Title
IV Program funds received by the institution during the institution's most recently completed fiscal year;
|
| · |
Posting a letter of credit in an amount determined by the DOE equal to at least 10% of such prior
year's Title IV Program funds, accepting provisional certification, complying with additional DOE monitoring requirements and agreeing to receive Title IV Program funds under an arrangement other than the DOE's standard advance
funding arrangement.
|
For the 2018 fiscal year, the Company calculated its composite score to be 1.1. The
score is subject to determination by the DOE once it receives and reviews the Company’s audited financial statements for the 2018 fiscal year. The DOE has evaluated the
financial responsibility of our institutions on a consolidated basis. The Company has submitted to the DOE our audited financial statements for the 2017 and 2016 fiscal years reflecting a composite score of 1.1 and 1.5, respectively, based
upon its calculations.
An institution participating in Title IV Programs must calculate the amount of unearned Title IV Program funds that have been disbursed to students who
withdraw from their educational programs before completing them, and must return those unearned funds to the DOE or the applicable lending institution in a timely manner, which is generally within 45 days from the date the institution
determines that the student has withdrawn.
If an institution is cited in an audit or program review for returning Title IV Program funds late for 5% or more of the students in the audit or
program review sample or if the regulatory auditor identifies a material weakness in the institution’s report on internal controls relating to the return of unearned Title IV Program funds, the institution may be required to post a letter of
credit in favor of the DOE in an amount equal to 25% of the total amount of Title IV Program funds that should have been timely returned for students who withdrew in the institution's previous fiscal year.
|
3.
|
WEIGHTED AVERAGE COMMON SHARES
|
The weighted average number of common shares used to compute basic and diluted income per share for the years ended December 31, 2018, 2017 and 2016,
respectively were as follows:
|
Year Ended December 31,
|
||||||||||||
|
2018
|
2017
|
2016
|
||||||||||
|
Basic shares outstanding
|
24,423,479
|
23,906,395
|
23,453,427
|
|||||||||
|
Dilutive effect of stock options
|
-
|
-
|
-
|
|||||||||
|
Diluted shares outstanding
|
24,423,479
|
23,906,395
|
23,453,427
|
|||||||||
For the years ended December 31, 2018, 2017 and 2016, options to acquire 50,422, 570,306, and 773,078 shares, respectively, were excluded from the above
table because the Company reported a net loss for the year and, therefore, their impact on reported loss per share would have been antidilutive. For the years ended December 31, 2018, 2017 and 2016, options to acquire 139,000, 167,667, and
218,167 shares, respectively, were excluded from the above table because they have an exercise price that is greater than the average market price of the Company’s common stock and, therefore, their impact on reported loss per share would
have been antidilutive.
|
4.
|
REVENUE RECOGNITION
|
Prior to adoption of ASU 2014-09
Revenues are derived primarily from programs taught at our schools. Tuition revenues, textbook sales and one-time fees, such as nonrefundable
application fees and course material fees, are recognized on a straight-line basis over the length of the applicable program as the student proceeds through the program, which is the period of time from a student’s start date through his or
her graduation date (including internships or externships, if any, occurring prior to graduation), and we complete the performance of teaching the student entitling us to the revenue. Other revenues, such as tool sales and contract training
revenues, are recognized as goods are delivered or training completed. On an individual student basis, tuition earned in excess of cash received is recorded as accounts receivable, and cash received in excess of tuition earned is recorded as
unearned tuition.
We evaluate whether collectability of revenue is reasonably assured prior to the student commencing a program by attending class and reassess
collectability of tuition and fees when a student withdraws from a course. We calculate the amount to be returned under Title IV and its stated refund policy to determine eligible charges and, if there is a balance due from the student after
this calculation, we expect payment from the student. We have a process to pursue uncollected accounts whereby, based upon the student’s financial means and ability to pay, a payment plan is established with the student to ensure that
collectability is reasonable. We continuously monitor our historical collections to identify potential trends that may impact our determination that collectability of receivables for withdrawn students is realizable. If a student withdraws
from a program prior to a specified date, any paid but unearned tuition is refunded. Refunds are calculated and paid in accordance with federal, state and accrediting agency standards. Generally, the amount to be refunded to a student is
calculated based upon the period of time the student has attended classes and the amount of tuition and fees paid by the student as of his or her withdrawal date. These refunds typically reduce deferred tuition revenue and cash on our
consolidated balance sheets as we generally do not recognize tuition revenue in our consolidated statements of income (loss) until the related refund provisions have lapsed. Based on the application of our refund policies, we may be entitled
to incremental revenue on the day the student withdraws from one of our schools. We record revenue for students who withdraw from one of our schools when payment is received because collectability on an individual student basis is not
reasonably assured.
After adoption of ASU 2014-09
On January 1, 2018, we adopted the new standard on revenue recognition, ASU 2014-09, using the modified retrospective approach of ASU 2016-10. The
adoption of the guidance in ASU 2014-09 as amended by ASU 2016-10 did not have a material impact on the measurement or recognition of revenue in any prior or current reporting periods and there was no adjustment to retained earnings. The
core principle of the new standard is that a company should recognize revenue to depict the transfer of promised goods or services to students in an amount that reflects the consideration to which the company expects to be entitled in
exchange for such goods or services.
Substantially all of our revenues are considered to be revenues from contracts with
students. The related accounts receivable balances are recorded in our balance sheets as student accounts receivable. We do not have significant revenue recognized from performance obligations that were satisfied in prior periods,
and we do not have any transaction price allocated to unsatisfied performance obligations other than in our unearned tuition. We record revenue for students who withdraw from
one of our schools only to the extent that it is probable that a significant reversal in the amount of cumulative revenue recognized will not occur. Unearned tuition represents contract liabilities primarily related to our tuition
revenue. We have elected not to provide disclosure about transaction prices allocated to unsatisfied performance obligations if contract durations are less than one-year, or if we have the right to consideration from a student in an amount
that corresponds directly with the value provided to the student for performance obligations completed to date. We have assessed the costs incurred to obtain a contract with a student and determined them to be immaterial.
Unearned tuition is the only significant contract asset or liability impacted by our adoption of ASU 2016-10. Unearned tuition in the amount of $22.5
million and $24.6 million is recorded in the current liabilities section of the accompanying consolidated balance sheets as of December 31, 2018 and December 31, 2017, respectively. The change in the contract liability balance during the year
ended December 31, 2018 is the result of payments received in advance of satisfying performance obligations, offset by revenue recognized during that period. Revenue recognized for the year ended December 31, 2018 that were included in the
contract liability balance at the beginning of the year was $24.5 million.
The following table depicts the timing of revenue recognition:
|
Year ended December 31, 2018
|
||||||||||||||||
|
Transportation and
Skilled Trades
Segment
|
Healthcare and
Other Professions
Segment
|
Transitional
Segment
|
Consolidated
|
|||||||||||||
|
Timing of Revenue Recognition
|
||||||||||||||||
|
Services transferred at a point in time
|
$
|
10,351
|
$
|
3,834
|
$
|
72
|
$
|
14,257
|
||||||||
|
Services transferred over time
|
174,912
|
68,301
|
5,730
|
248,943
|
||||||||||||
|
Total revenues
|
$
|
185,263
|
$
|
72,135
|
$
|
5,802
|
$
|
263,200
|
||||||||
|
Year ended December 31, 2017
|
||||||||||||||||
|
Transportation and
Skilled Trades
Segment
|
Healthcare and
Other Professions
Segment
|
Transitional
Segment
|
Consolidated
|
|||||||||||||
|
Timing of Revenue Recognition
|
||||||||||||||||
|
Services transferred at a point in time
|
$
|
8,987
|
$
|
2,860
|
$
|
28
|
$
|
11,875
|
||||||||
|
Services transferred over time
|
172,341
|
60,781
|
16,856
|
249,978
|
||||||||||||
|
Total revenues
|
$
|
181,328
|
$
|
63,641
|
$
|
16,884
|
$
|
261,853
|
||||||||
|
Year ended December 31, 2016
|
||||||||||||||||
|
Transportation and
Skilled Trades
Segment
|
Healthcare and
Other Professions
Segment
|
Transitional
Segment
|
Consolidated
|
|||||||||||||
|
Timing of Revenue Recognition
|
||||||||||||||||
|
Services transferred at a point in time
|
$
|
8,856
|
$
|
2,765
|
$
|
556
|
$
|
12,177
|
||||||||
|
Services transferred over time
|
173,421
|
60,105
|
39,856
|
273,382
|
||||||||||||
|
Total revenues
|
$
|
182,277
|
$
|
62,870
|
$
|
40,412
|
$
|
285,559
|
||||||||
|
5.
|
GOODWILL
|
Changes in the carrying amount of goodwill during the years ended December 31, 2018 and 2017 are as follows:
|
Gross
Goodwill
Balance
|
Accumulated
Impairment
Losses
|
Net
Goodwill
Balance
|
||||||||||
|
Balance as of January 1, 2017
|
$
|
117,176
|
$
|
102,640
|
$
|
14,536
|
||||||
|
Adjustments
|
-
|
-
|
-
|
|||||||||
|
Balance as of December 31, 2017
|
117,176
|
102,640
|
14,536
|
|||||||||
|
Adjustments
|
-
|
-
|
-
|
|||||||||
|
Balance as of December 31, 2018
|
$
|
117,176
|
$
|
102,640
|
$
|
14,536
|
||||||
As of December 31, 2018 and 2017, the goodwill balance of $14.5 million is related to the Transportation and Skilled Trades segment.
|
6.
|
PROPERTY, EQUIPMENT AND FACILITIES
|
Property, equipment and facilities consist of the following:
|
Useful life
(years)
|
At December 31,
|
|||||||||||
|
2018
|
2017
|
|||||||||||
|
Land
|
-
|
$
|
6,969
|
$
|
6,969
|
|||||||
|
Buildings and improvements
|
1-25
|
128,431
|
127,027
|
|||||||||
|
Equipment, furniture and fixtures
|
1-7
|
83,766
|
81,772
|
|||||||||
|
Vehicles
|
3
|
916
|
883
|
|||||||||
|
Construction in progress
|
-
|
319
|
161
|
|||||||||
|
220,401
|
216,812
|
|||||||||||
|
Less accumulated depreciation and amortization
|
(171,109
|
)
|
(163,946
|
)
|
||||||||
|
$
|
49,292
|
$
|
52,866
|
|||||||||
Depreciation and amortization expense of property, equipment and facilities was $8.4 million, $8.7 million and $11.0 million for the years ended
December 31, 2018, 2017 and 2016, respectively.
As discussed in Note 1, the Company sold its property in Mangonia Park Palm Beach County, Florida and associated assets.
|
7.
|
ACCRUED EXPENSES
|
Accrued expenses consist of the following:
|
At December 31,
|
||||||||
|
2018
|
2017
|
|||||||
|
Accrued compensation and benefits
|
$
|
4,337
|
$
|
3,114
|
||||
|
Accrued rent and real estate taxes
|
3,057
|
3,151
|
||||||
|
Other accrued expenses
|
3,211
|
5,506
|
||||||
|
$
|
10,605
|
$
|
11,771
|
|||||
|
8.
|
LONG-TERM DEBT
|
Long-term debt consist of the following:
|
At December 31,
|
||||||||
|
2018
|
2017
|
|||||||
|
Credit agreement
|
$
|
49,301
|
$
|
53,400
|
||||
|
Deferred financing fees
|
(532
|
)
|
(807
|
)
|
||||
|
48,769
|
52,593
|
|||||||
|
Less current maturities
|
(15,000
|
)
|
-
|
|||||
|
$
|
33,769
|
$
|
52,593
|
|||||
On March 31, 2017, the Company obtained a secured credit facility (the “Credit Facility”) from Sterling National Bank (the “Bank”) pursuant to a Credit
Agreement dated March 31, 2017 among the Company, the Company’s subsidiaries and the Bank, which was subsequently amended on November 29, 2017, February 23, 2018, July 11, 2018 and, most recently, on March 6, 2019 (as amended, the “Credit
Agreement”). Prior to the most recent amendment of the Credit Agreement (the “Fourth Amendment”), the financial accommodations available to the Borrowers under the Credit
Agreement consisted of (a) a $25 million revolving loan facility designated as “Facility 1”, (b) a $25 million revolving loan facility (including a sublimit amount for letters of credit of $10 million) designated as “Facility 2” and
(c) a $15 million revolving credit loan designated as “Facility 3”.
Pursuant to the terms of the Fourth Amendment and upon its effectiveness, Facility 1 was converted into a term loan (the “Term Loan”) in the original
principal amount of $22.7 million (such amount being the entire unpaid principal and accrued interest outstanding under Facility 1 as of the effective date of the Fourth Amendment), which matures on March 31, 2024 (the “Term Loan Maturity
Date”). The Fourth Amendment provides for the repayment of the Term Loan in monthly installments as follows: (a) on April 1, 2019 and on the same day of each month thereafter through and including June 30, 2019, accrued interest only; (b)
on July 1, 2019 and on the same day of each month thereafter through and including December 31, 2019, the principal amount of $10.2 million plus accrued interest; (c) on January 1, 2020 and on the same day of each month thereafter through
and including June 30, 2020, accrued interest only; (d) on July 1, 2020 and on the same day of each month thereafter through and including December 31, 2020, the principal amount of $0.6 million plus accrued interest; (e) on January 1, 2021
and on the same day of each month thereafter through and including June 30, 2021, accrued interest only; (f) on July 1, 2021 and on the same day of each month thereafter through and including December 31, 2021, the principal amount of $0.4
million plus accrued interest; (g) on January 1, 2022 and on the same day of each month thereafter through and including June 30, 2022, accrued interest only; (h) on July 1, 2022 and on the same day of each month thereafter through and
including December 31, 2022, the principal amount of $0.4 million plus accrued interest; (i) on
January 1, 2023 and on the same day of each month thereafter through and including June 30, 2023, accrued interest only; (j) on July 1, 2023 and on the same day of each month thereafter through and including December 31, 2023, the principal
amount of $0.4 million plus accrued interest; (k) on January 1, 2024 and on the same day of each
month thereafter through and including the Term Loan Maturity Date, accrued interest only; and (l) on the Term Loan Maturity Date, the remaining outstanding principal amount of the Term Loan, together with accrued interest, will be due and
payable. In the event of a sale of any campus, school or business of the Borrowers permitted under the Credit Agreement, 25% of the net proceeds of any such sale must be used to pay down the outstanding principal amount of the Term Loan in
inverse order of maturity.
The Fourth Amendment changed the maturity date of Facility 2 from May 31, 2020 to April 30, 2020. The maturity date for Facility 3 is May 31, 2019.
Under the terms of the Credit Agreement, all draws under Facility 2 for letters of credit or revolving loans and all draws under Facility 3 must be
secured by cash collateral in an amount equal to 100% of the aggregate stated amount of the letters of credit issued and revolving loans outstanding through the proceeds of the Term Loan or other available cash of the Company.
Notwithstanding such requirement, pursuant to the terms of the Fourth Amendment, a $2.5 million revolving loan was advanced under Facility 2 at the closing of the Fourth Amendment on March 6, 2019 without any requirement for cash collateral
and, in the Bank’s sole discretion, an additional $2.5 million of revolving loans may be advanced under Facility 2 without any requirement for cash collateral, consisting of (a) a $1.25 million revolving loan within 15 days after the Bank’s
receipt of the Company’s financial statements for the fiscal quarter ending March 31, 2019 and (b) a $1.25 million revolving loan within 15 days after the Bank’s receipt of the Company’s financial statements for the fiscal quarter ending June
30, 2019. The $2.5 million revolving loan advanced under Facility 2 at the closing of the Fourth Amendment and the additional $2.5 million of revolving loans that may be advanced under Facility 2 in the discretion of the Bank, in each case
without any requirement for cash collateral, must be repaid on November 1, 2019 and, prior to their repayment, the Borrowers are required to make monthly payments of accrued interest only on such revolving loans.
The Term Loan bears interest at a rate per annum equal to the greater of (x) the Bank’s prime rate plus 2.85% and (y) 6.00%. Revolving loans
outstanding under Facility 1 prior to its conversion to a term loan also bore interest at a rate per annum equal to the greater of (x) the Bank’s prime rate plus 2.85% and (y) 6.00%. Revolving loans advanced under Facility 2 that are cash
collateralized will bear interest at a rate per annum equal to the greater of (x) the Bank’s prime rate and (y) 3.50%. Pursuant to the Fourth Amendment, revolving loans advanced under Facility 2 that are not secured by cash collateral will
bear interest at a rate per annum equal to the greater of (x) the Bank’s prime rate plus 2.85% and (y) 6.00%. Revolving loans under Facility 3 bear interest at a rate per annum equal to the greater of (x) the Bank’s prime rate and (y) 3.50%.
Under the terms of the Fourth Amendment, the Bank is entitled to receive an unused facility fee on the average daily unused balance of Facility 2 at a
rate per annum equal to 0.50%, which fee is payable quarterly in arrears.
The Fourth Amendment provides that in the event the Bank’s prime rate is greater than or equal to 6.50% while any loans are outstanding, the Borrowers
may be required to enter into a hedging contract in form and content satisfactory to the Bank.
The Fourth Amendment requires the Borrowers to give the Bank the first opportunity to provide any and all traditional banking services required by the
Borrowers, including, but not limited to, treasury management, loans and other financing services, on terms mutually acceptable to the Borrowers and the Bank, in accordance with the terms set forth in the Fourth Amendment. In the event that
loans provided under the Credit Agreement are repaid through replacement financing, the Fourth Amendment requires that the Borrowers pay to the Bank an exit fee in an amount equal to 1.25% of the total amount repaid and the face amount of all
letters of credit replaced in connection with the replacement financing; provided, however, that no exit fee will be required in the event the Bank or the Bank’s affiliate arranges or provides the replacement financing or the payoff of the
applicable loans occurs after March 5, 2021.
In connection with the effectiveness of the Fourth Amendment, the Borrowers paid to the Bank a one-time modification fee in the amount of $50,000.
Pursuant to the Credit Agreement, in December 2018, the net proceeds of the sale of the Mangonia Park Property, which were held in a non-interest
bearing cash collateral account at and by the Bank as additional collateral for the loans outstanding under the Credit Agreement, were applied to the outstanding principal balance of revolving loans outstanding under Facility 1 and, as a
result of such repayment, the revolving loan availability under Facility 1 was permanently reduced to $22.7 million.
The Credit Facility is secured by a first priority lien in favor of the Bank on substantially all of the personal property owned by the Company and
mortgages on four parcels of real property owned by the Company in Colorado, Tennessee and Texas, at which three of the Company’s schools are located, as well as a former school property owned by the Company located in Connecticut.
At the closing of the Credit Facility, the Company drew $25 million under Facility 1, which was used to repay the Company’s previous credit facility and
to pay transaction costs associated with closing the Credit Facility.
Each issuance of a letter of credit under Facility 2 will require the payment of a letter of credit fee to the Bank equal to a rate per annum of 1.75%
on the daily amount available to be drawn under the letter of credit, which fee shall be payable in quarterly installments in arrears. Letters of credit totaling $6.2 million that were outstanding under a $9.5 million letter of credit
facility previously provided to the Company by the Bank, which letter of credit facility was set to mature on April 1, 2017, are treated as letters of credit under Facility 2.
The terms of the Credit Agreement require the Company to maintain, on deposit in one or more non-interest bearing accounts, a minimum of $5 million in
quarterly average aggregate balances, which, if not maintained, results in a fee of $12,500 payable to the Bank for that quarter.
In addition to the foregoing, the Credit Agreement contains customary representations, warranties and affirmative and negative covenants, including
financial covenants that (i) restrict capital expenditures tested on a fiscal year end basis; (i) prohibit the incurrence of a net loss commencing on December 31, 2019; and (iii) require a minimum adjusted EBITDA tested quarterly on a rolling
twelve month basis. The Fourth Amendment (i) modifies the minimum adjusted EBITDA required; (ii) eliminates the requirement for a minimum funded debt to adjusted EBITDA ratio; and (iii) requires the maintenance of a maximum funded debt to
adjusted EBITDA ratio tested quarterly on a rolling twelve month basis. The Credit Agreement contains events of default customary for facilities of this type. As of December 31, 2018, the Company is in compliance with all covenants.
As of December 31, 2018, the Company had $49.3 million outstanding under the Credit
Facility; offset by $0.5 million of deferred finance fees. As of December 31, 2017, the Company had $53.4 million outstanding under the Credit Facility, offset by $0.8
million of deferred finance fees, which were written-off. As of December 31, 2018 and December 31, 2017, letters of credit in the aggregate outstanding principal amount of $1.8 million and $7.2 million, respectively, were outstanding under
the Credit Facility. For the three months ended March 31, 2019, the Company is required to increase its letters of credit by $2.8 million related to state bond requirements which requires the Company to increase its restricted cash balance
by $2.8 million.
Scheduled maturities of long-term debt at December 31, 2018 are as follows:
|
Year ending December 31,
|
||||
|
2019
|
$
|
15,000
|
*
|
|
|
2020
|
33,769 |
|||
|
2021
|
-
|
|||
|
2022
|
-
|
|||
|
2023
|
-
|
|||
|
Thereafter
|
-
|
|||
|
$
|
48,769
|
|||
* Includes deferred finance fees of $0.5 million.
|
9.
|
STOCKHOLDERS' EQUITY
|
Restricted Stock
The Company has two stock incentive plans: a Long-Term Incentive Plan (the “LTIP”) and a Non-Employee Directors Restricted Stock Plan (the “Non-Employee Directors Plan”).
Under the LTIP, certain employees received awards of restricted shares of common stock based on service and performance. The number of shares granted
to each employee is based on the fair market value of a share of common stock on the date of grant.
On February 23, 2018, restricted shares of common stock of the Company were granted to certain employees of the Company, which shares vested
immediately. There is no restriction on the right to vote or the right to receive dividends with respect to any of such restricted shares; however, the recipient can only sell or otherwise transfer the shares after the expiration of a
specified period of time ranging from 120 to 240 days following the date of grant.
On May 13, 2016 and January 16, 2017, performance-based restricted shares were granted to certain employees of the Company, which vest on March 15, 2017
and March 15, 2018 based upon the attainment of a financial metric during each fiscal year ending December 31, 2016 and 2017. These shares were fully vested as of March 31, 2018 and are held without restriction.
On June 2, 2014 and December 18, 2014, performance-based restricted shares were granted to certain employees of the Company, which vest over three years
based upon the attainment of (i) a specified operating income margin during any one or more of the fiscal years in the period beginning January 1, 2015 and ending December 31, 2017 and (ii) the attainment of earnings before interest, taxes,
depreciation and amortization targets during each of the fiscal years ended December 31, 2015 through 2017. There is no restriction on the right to vote or the right to receive dividends with respect to any of these restricted shares.
Pursuant to the Non-Employee Directors Plan, each non-employee director of the Company receives an annual award of restricted shares of common stock on
the date of the Company’s annual meeting of shareholders. The number of shares granted to each non-employee director is based on the fair market value of a share of common stock on that date. There is no restriction on the right to vote or
the right to receive dividends with respect to any of the restricted shares.
In 2018, 2017 and 2016, the Company completed a net share settlement for 207,642, 189,420 and 71,805 restricted shares and stock options exercised,
respectively, on behalf of certain employees that participate in the LTIP upon the vesting of the restricted shares pursuant to the terms of the LTIP or exercise of the stock options. The net share settlement was in connection with income
taxes incurred on restricted shares or stock option exercises that vested and were transferred to the employee during 2018, 2017 and/or 2016, creating taxable income for the employee. At the employees’ request, the Company will pay these
taxes on behalf of the employees in exchange for the employees returning an equivalent value of restricted shares or shares acquired upon the exercise of stock options to the Company. These transactions resulted in a decrease of
approximately $0.4 million, $0.4 million and $0.2 million in 2018, 2017 and 2016, respectively, to equity as the cash payment of the taxes effectively was a repurchase of the restricted shares or shares acquired through the exercise of stock
options granted in previous years.
The following is a summary of transactions pertaining to restricted stock:
|
Shares
|
Weighted
Average Grant
Date Fair Value
Per Share
|
|||||||
|
Nonvested restricted stock outstanding at December 31, 2016
|
1,143,599
|
$
|
1.89
|
|||||
|
Granted
|
181,208
|
2.58
|
||||||
|
Cancelled
|
(52,398
|
)
|
5.63
|
|||||
|
Vested
|
(664,415
|
)
|
1.77
|
|||||
|
Nonvested restricted stock outstanding at December 31, 2017
|
607,994
|
1.90
|
||||||
|
Granted
|
135,568
|
1.60
|
||||||
|
Cancelled
|
-
|
-
|
||||||
|
Vested
|
(707,654
|
)
|
1.82
|
|||||
|
Nonvested restricted stock outstanding at December 31, 2018
|
35,908
|
2.23
|
||||||
The restricted stock expense for each of the years ended December 31, 2018, 2017 and 2016 was $0.5 million, $1.2 million and $1.4 million, respectively.
The unrecognized restricted stock expense as of December 31, 2018 and 2017 was less than $0.1 million and $0.3 million, respectively. As of December 31, 2018, unrecognized restricted stock expense will be expensed over the weighted-average
period of approximately 5 months. As of December 31, 2018, outstanding restricted shares under the LTIP had an aggregate intrinsic value of $0.1 million. For the year ended December 31, 2017, 52,398 shares were cancelled as the performance
criteria was not met.
Stock Options
During 2018, 2017 and 2016 there were no new stock option grants. The following is a summary of transactions pertaining to the option plans:
|
Shares
|
Weighted
Average
Exercise Price
Per Share
|
Weighted
Average
Remaining
Contractual
Term
|
Aggregate
Intrinsic Value
|
||||||||||
|
Outstanding January 1, 2016
|
246,167
|
$
|
12.52
|
3.98 years
|
$
|
-
|
|||||||
|
Cancelled
|
(28,000
|
)
|
15.76
|
-
|
|||||||||
|
Outstanding December 31, 2016
|
218,167
|
12.11
|
3.33 years
|
-
|
|||||||||
|
Cancelled
|
(50,500
|
)
|
12.09
|
-
|
|||||||||
|
Outstanding December 31, 2017
|
167,667
|
12.11
|
2.97 years
|
-
|
|||||||||
|
Cancelled
|
(28,667
|
)
|
11.98
|
||||||||||
|
Outstanding December 31, 2018
|
139,000
|
12.14
|
2.53 years
|
-
|
|||||||||
|
Vested as of December 31, 2018
|
139,000
|
12.14
|
2.53 years
|
-
|
|||||||||
|
Exercisable as of December 31, 2018
|
139,000
|
12.14
|
2.53 years
|
-
|
|||||||||
As of December 31, 2018, there are no unrecognized pre-tax compensation expense for unvested stock option awards.
The following table presents a summary of options outstanding at December 31, 2018:
|
At December 31, 2018
|
||||||||||||||||||||||
|
Stock Options Outstanding
|
Stock Options Exercisable
|
|||||||||||||||||||||
|
Range of Exercise Prices
|
Shares
|
Contractual
Weighted
Average life
(years)
|
Weighted
Average Exercise
Price
|
Shares
|
Weighted
Average Exercise
Price
|
|||||||||||||||||
|
$
|
4.00-$13.99
|
91,000
|
3.17
|
$
|
7.79
|
91,000
|
$
|
7.79
|
||||||||||||||
|
$
|
14.00-$19.99
|
17,000
|
0.84
|
19.98
|
17,000
|
19.98
|
||||||||||||||||
|
$
|
20.00-$25.00
|
31,000
|
1.59
|
20.62
|
31,000
|
20.62
|
||||||||||||||||
|
139,000
|
2.53
|
12.14
|
139,000
|
12.14
|
||||||||||||||||||
| 10. |
PENSION PLAN
|
The Company sponsors a noncontributory defined benefit pension plan covering substantially all of the Company's union employees. Benefits are provided
based on employees' years of service and earnings. This plan was frozen on December 31, 1994 for non-union employees.
The following table sets forth the plan's funded status and amounts recognized in the consolidated financial statements:
|
Year Ended December 31,
|
||||||||||||
|
2018
|
2017
|
2016
|
||||||||||
|
CHANGES IN BENEFIT OBLIGATIONS:
|
||||||||||||
|
Benefit obligation-beginning of year
|
$
|
23,492
|
$
|
22,916
|
$
|
23,341
|
||||||
|
Service cost
|
28
|
29
|
28
|
|||||||||
|
Interest cost
|
755
|
840
|
888
|
|||||||||
|
Actuarial (gain) loss
|
(1,951
|
)
|
721
|
(255
|
)
|
|||||||
|
Benefits paid
|
(1,219
|
)
|
(1,014
|
)
|
(1,086
|
)
|
||||||
|
Benefit obligation at end of year
|
21,105
|
23,492
|
22,916
|
|||||||||
|
CHANGE IN PLAN ASSETS:
|
||||||||||||
|
Fair value of plan assets-beginning of year
|
19,055
|
17,548
|
17,792
|
|||||||||
|
Actual return on plan assets
|
(1,000
|
)
|
2,521
|
842
|
||||||||
|
Benefits paid
|
(1,220
|
)
|
(1,014
|
)
|
(1,086
|
)
|
||||||
|
Fair value of plan assets-end of year
|
16,835
|
19,055
|
17,548
|
|||||||||
|
BENEFIT OBLIGATION IN EXCESS OF FAIR VALUE FUNDED STATUS:
|
$
|
(4,270
|
)
|
$
|
(4,437
|
)
|
$
|
(5,368
|
)
|
|||
For the year ended December 31, 2018, the actuarial gain of $1.9 million was due to the increase in the discount rate from 3.36% to 4.01%.
Amounts recognized in the consolidated balance sheets consist of:
|
At December 31,
|
||||||||||||
|
2018
|
2017
|
2016
|
||||||||||
|
Noncurrent liabilities
|
$
|
(4,270
|
)
|
$
|
(4,437
|
)
|
$
|
(5,368
|
)
|
|||
Amounts recognized in accumulated other comprehensive loss consist of:
|
Year Ended December 31,
|
||||||||||||
|
2018
|
2017
|
2016
|
||||||||||
|
Accumulated loss
|
$
|
(6,428
|
)
|
$
|
(6,876
|
)
|
$
|
(8,467
|
)
|
|||
|
Deferred income taxes
|
2,366
|
2,366
|
2,366
|
|||||||||
|
Accumulated other comprehensive loss
|
$
|
(4,062
|
)
|
$
|
(4,510
|
)
|
$
|
(6,101
|
)
|
|||
The accumulated benefit obligation was $21.1 million and $23.5 million at December 31, 2018 and 2017, respectively.
The following table provides the components of net periodic cost for the plan:
|
Year Ended December 31,
|
||||||||||||
|
2018
|
2017
|
2016
|
||||||||||
|
COMPONENTS OF NET PERIODIC BENEFIT COST
|
||||||||||||
|
Service cost
|
$
|
28
|
$
|
29
|
$
|
28
|
||||||
|
Interest cost
|
755
|
840
|
888
|
|||||||||
|
Expected return on plan assets
|
(1,104
|
)
|
(1,058
|
)
|
(1,118
|
)
|
||||||
|
Recognized net actuarial loss
|
601
|
850
|
991
|
|||||||||
|
Net periodic benefit cost
|
$
|
280
|
$
|
661
|
$
|
789
|
||||||
The estimated net loss, transition obligation and prior service cost for the plan that will be amortized from accumulated other comprehensive loss into
net periodic benefit cost over the next year is $0.6 million.
The following tables present plan assets using the fair value hierarchy as of December 31, 2018 and 2017. The fair value hierarchy has three levels
based on the reliability of inputs used to determine fair value. Level 1 refers to fair values determined based on quoted prices in active markets for identical assets. Level 2 refers to fair values estimated using observable prices that
are based on inputs not quoted in active markets but observable by market data, while Level 3 includes the fair values estimated using significant non-observable inputs. The level in the fair value hierarchy within which the fair value
measurement falls is determined based on the lowest level input that is significant to the fair value measurement in its entirety.
|
Quoted Prices in
Active Markets
for Identical
Assets
|
Significant Other
Observable Inputs
|
Significant
Unobservable
Inputs
|
||||||||||||||
|
(Level 1)
|
(Level 2)
|
(Level 3)
|
Total
|
|||||||||||||
|
Equity securities
|
$
|
5,428
|
$
|
-
|
$
|
-
|
$
|
5,428
|
||||||||
|
Fixed income
|
5,852
|
-
|
-
|
5,852
|
||||||||||||
|
International equities
|
3,734
|
-
|
-
|
3,734
|
||||||||||||
|
Real estate
|
795
|
-
|
-
|
795
|
||||||||||||
|
Cash and equivalents
|
1,026
|
-
|
-
|
1,026
|
||||||||||||
|
Balance at December 31, 2018
|
$
|
16,835
|
$
|
-
|
$
|
-
|
$
|
16,835
|
||||||||
|
Quoted Prices in
Active Markets
for Identical
Assets |
Significant Other
Observable Inputs
|
Significant
Unobservable
Inputs
|
||||||||||||||
|
(Level 1)
|
(Level 2)
|
(Level 3)
|
Total
|
|||||||||||||
|
Equity securities
|
$
|
6,856
|
$
|
-
|
$
|
-
|
$
|
6,856
|
||||||||
|
Fixed income
|
6,818
|
-
|
-
|
6,818
|
||||||||||||
|
International equities
|
3,490
|
-
|
-
|
3,490
|
||||||||||||
|
Real estate
|
1,133
|
-
|
-
|
1,133
|
||||||||||||
|
Cash and equivalents
|
758
|
-
|
-
|
758
|
||||||||||||
|
Balance at December 31, 2017
|
$
|
19,055
|
$
|
-
|
$
|
-
|
$
|
19,055
|
||||||||
Fair value of total plan assets by major asset category as of December 31:
|
2018
|
2017
|
|||||||
|
Equity securities
|
32
|
%
|
36
|
%
|
||||
|
Fixed income
|
35
|
%
|
36
|
%
|
||||
|
International equities
|
22
|
%
|
18
|
%
|
||||
|
Real estate
|
5
|
%
|
6
|
%
|
||||
|
Cash and equivalents
|
6
|
%
|
4
|
%
|
||||
|
Total
|
100
|
%
|
100
|
%
|
||||
Weighted-average assumptions used to determine benefit obligations as of December 31:
|
2018
|
2017
|
2016
|
||||||||||
|
Discount rate
|
4.01
|
%
|
3.36
|
%
|
3.81
|
%
|
||||||
|
Rate of compensation increase
|
2.50
|
%
|
2.50
|
%
|
2.50
|
%
|
||||||
Weighted-average assumptions used to determine net periodic pension cost for years ended December 31:
|
2018
|
2017
|
2016
|
||||||||||
|
Discount rate
|
4.01
|
%
|
3.36
|
%
|
3.81
|
%
|
||||||
|
Rate of compensation increase
|
2.50
|
%
|
2.50
|
%
|
2.50
|
%
|
||||||
|
Long-term rate of return
|
6.25
|
%
|
6.00
|
%
|
6.25
|
%
|
||||||
As this plan was frozen to non-union employees on December 31, 1994, the difference between the projected benefit obligation and accumulated benefit
obligation is not significant in any year.
The Company invests plan assets based on a total return on investment approach, pursuant to which the plan assets include a diversified blend of equity
and fixed income investments toward a goal of maximizing the long-term rate of return without assuming an unreasonable level of investment risk. The Company determines the level of risk based on an analysis of plan liabilities, the extent to
which the value of the plan assets satisfies the plan liabilities and the plan's financial condition. The investment policy includes target allocations ranging from 30% to 70% for equity investments, 20% to 60% for fixed income investments
and 0% to 10% for cash equivalents. The equity portion of the plan assets represents growth and value stocks of small, medium and large companies. The Company measures and monitors the investment risk of the plan assets both on a quarterly
basis and annually when the Company assesses plan liabilities.
The Company uses a building block approach to estimate the long-term rate of return on plan assets. This approach is based on the capital markets
assumption that the greater the volatility, the greater the return over the long term. An analysis of the historical performance of equity and fixed income investments, together with current market factors such as the inflation and interest
rates, are used to help make the assumptions necessary to estimate a long-term rate of return on plan assets. Once this estimate is made, the Company reviews the portfolio of plan assets and makes adjustments thereto that the Company believes
are necessary to reflect a diversified blend of equity and fixed income investments that is capable of achieving the estimated long-term rate of return without assuming an unreasonable level of investment risk. The Company also compares the
portfolio of plan assets to those of other pension plans to help assess the suitability and appropriateness of the plan's investments.
The Company does not expect to make contributions to the plan in 2019. However after considering the funded status of the plan, movements in the
discount rate, investment performance and related tax consequences, the Company may choose to make additional contributions to the plan in any given year.
The total amount of the Company’s contributions paid under its pension plan was zero for each of the years ended December 31, 2018 and 2017,
respectively.
Information about the expected benefit payments for the plan is as follows:
|
Year Ending December 31,
|
||||
|
2019
|
$
|
1,335
|
||
|
2020
|
1,347
|
|||
|
2021
|
1,350
|
|||
|
2022
|
1,368
|
|||
|
2023
|
1,382
|
|||
|
Years 2024-2028
|
6,859
|
|||
The Company has a 401(k) defined contribution plan for all eligible employees. Employees may contribute up to 25% of their compensation into the plan.
The Company may contribute up to an additional 30% of the employee's contributed amount up to 6% of compensation. For the years ended December 31, 2018, 2017 and 2016, the Company's expense for the 401(k) plan amounted to $0.1 million, $0.1
million and $0.7 million, respectively.
|
11.
|
INCOME TAXES
|
Components of the provision for income taxes were as follows:
|
Year Ended December 31,
|
||||||||||||
|
2018
|
2017
|
2016
|
||||||||||
|
Current:
|
||||||||||||
|
Federal
|
$
|
-
|
$
|
-
|
$
|
-
|
||||||
|
State
|
200
|
150
|
200
|
|||||||||
|
Total
|
200
|
150
|
200
|
|||||||||
|
Deferred:
|
||||||||||||
|
Federal
|
-
|
(424
|
)
|
-
|
||||||||
|
State
|
-
|
-
|
-
|
|||||||||
|
Total
|
-
|
(424
|
)
|
-
|
||||||||
|
Total (benefit) provision
|
$
|
200
|
$
|
(274
|
)
|
$
|
200
|
|||||
Effective Tax rate
The reconciliation of the effective tax rate to the U.S. Statutory Federal Income tax rate was:
|
Year Ended December 31,
|
||||||||||||||||||||||||
|
2018
|
2017
|
2016
|
||||||||||||||||||||||
|
Loss before taxes
|
$
|
(6,345
|
)
|
$
|
(11,758
|
)
|
$
|
(28,104
|
)
|
|||||||||||||||
|
Expected tax benefit
|
$
|
(1,332
|
)
|
21.0
|
%
|
$
|
(4,115
|
)
|
35.0
|
%
|
$
|
(9,836
|
)
|
35.0
|
%
|
|||||||||
|
State tax benefit (net of federal)
|
200
|
(3.2
|
)
|
150
|
(1.3
|
)
|
200
|
(0.7
|
)
|
|||||||||||||||
|
Valuation allowance
|
1,230
|
(19.4
|
)
|
(13,920
|
)
|
118.4
|
9,726
|
(34.6
|
)
|
|||||||||||||||
|
Federal tax reform - deferred rate change
|
49
|
(0.8
|
)
|
17,671
|
(150.3
|
)
|
-
|
-
|
||||||||||||||||
|
Other
|
53
|
(0.8
|
)
|
(60
|
)
|
0.5
|
110
|
(0.4
|
)
|
|||||||||||||||
|
Total
|
$
|
200
|
(3.2
|
%)
|
$
|
(274
|
)
|
2.3
|
%
|
$
|
200
|
(0.7
|
%)
|
|||||||||||
On December 22, 2017, the U.S. government enacted comprehensive tax legislation known as
the Tax Cuts and Jobs Act (the “Tax Act”). The Tax Act establishes new tax laws that took effect in 2018, including, but not limited to (1) reduction of the U.S. federal corporate tax rate from a maximum of 35% to 21%; (2) elimination of
the corporate alternative minimum tax (AMT); (3) a new limitation on deductible interest expense; (4) the repeal of the domestic production activity deduction; (5) limitations on the deductibility of certain executive compensation; and (6)
limitation on net operating losses (NOLs) generated after December 31, 2017, to 80% of taxable income. In addition, certain changes were made to the bonus depreciation rules that impacted fiscal year 2017.
Our provision for income taxes was $0.2 million, or (3.2%) of pretax loss, for the year ended December 31, 2018, compared to a benefit for income taxes
of $0.3 million, or 2.3% of pretax loss, in the prior year comparable period. No federal or state income tax benefit was recognized for the current period loss due to the recognition of a full valuation allowance. Income tax expense resulted
from various minimal state tax expenses.
The deferred tax provision benefit in the prior year was due to recognition of $ 0.4
million of valuation allowance for the AMT credits. The tax expense in prior year included an adjustment to measure net deferred tax assets at the new U.S. tax rate of 21%. The expense was offset with a corresponding release of valuation
allowance.
In accordance with Staff Accounting Bulletin 118 ("SAB 118"), we completed our analysis of the Tax Act resulting in no material adjustments from the
provisional amounts recorded during the prior year. The Tax Act did not have a material impact on our financial statements because we are under a full valuation allowance.
Deferred Taxes and Valuation Allowance
The components of the non-current deferred tax assets/(liabilities) were as follows:
|
At December 31,
|
||||||||
|
2018
|
2017
|
|||||||
|
Gross noncurrent deferred tax assets (liabilities)
|
||||||||
|
Allowance for bad debts
|
$
|
4,828
|
$
|
3,792
|
||||
|
Accrued rent
|
1,833
|
1,723
|
||||||
|
Accrued benefits
|
-
|
105
|
||||||
|
Stock-based compensation
|
18
|
387
|
||||||
|
163J interest limitation
|
19
|
-
|
||||||
|
Depreciation
|
16,259
|
15,520
|
||||||
|
Goodwill
|
(98
|
)
|
594
|
|||||
|
Other intangibles
|
211
|
291
|
||||||
|
Pension plan liabilities
|
1,163
|
1,221
|
||||||
|
Net operating loss carryforwards
|
17,927
|
17,367
|
||||||
|
AMT credit
|
424
|
424
|
||||||
|
Gross noncurrent deferred tax assets, net
|
42,584
|
41,424
|
||||||
|
Less valuation allowance
|
(42,160
|
)
|
(41,000
|
)
|
||||
|
Noncurrent deferred tax assets, net
|
$
|
424
|
$
|
424
|
||||
Management assesses the available positive and negative evidence to estimate if sufficient future taxable income will be generated to use the existing
deferred tax assets. A significant piece of objective negative evidence was the cumulative losses incurred by the Company in recent years.
On the basis of this evaluation the Company believes it is not more likely than not that it will realize its deferred tax assets except the deferred tax
assets for AMT credits which can be realized to offset regular tax liability or refunded. As a result, as of December 31, 2018 and 2017, the Company has recorded a valuation allowance of $42.2 million and $41.0 million, respectively, against
its net deferred tax assets. With respect to AMT credit deferred tax asset, it is expected that 50% will be refunded upon the filings of Company's 2018 federal Corporate income
tax return is filed.
As of December 31, 2018, the Company has net operating loss (“NOL”) carryforwards of $60.3 million. Of the $60.3 million NOL carryforwards, $52.7 million will
start expiring in 2029 and ending in 2038 if unused. The net operating losses of $7.6 million generated in current year can be carried over indefinitely under the Tax Act. Utilization of the NOL carryforwards may be subject to a substantial
limitation due to ownership change limitations that may occur in the future, as required by Section 382 of the Internal Revenue Code of 1986, as amended (the “Code”), as well as similar state and foreign provisions. These ownership changes
may limit the amount of NOL and tax credit carryforwards that can be utilized annually to offset future taxable income and tax, respectively. In general, an “ownership change” as defined by Section 382 of the Code results from a transaction
or series of transactions over a three-year period resulting in an ownership change of more than 50 percentage points of the outstanding stock of a company by certain stockholders or public groups.
As of December 31, 2018, 2017 and 2016, the Company no longer has any liability for uncertain tax positions. The Company recognizes accrued interest
and penalties related to uncertain tax positions in income tax expense.
The Company or one of its subsidiaries files income tax returns in the U.S. federal jurisdiction, and various states. The Company is no longer subject
to U.S. federal income tax examinations for years before 2015 and, generally, is no longer subject to state and local income tax examinations by tax authorities for years before 2014.
|
12.
|
FAIR VALUE
|
The carrying amount and estimated fair value of the Company’s financial instrument assets and liabilities, which are not measured at fair value on the
Consolidated Balance Sheets, are listed in the table below:
|
December 31, 2018
|
||||||||||||||||||||
|
Carrying
|
Quoted Prices in
Active Markets
for Identical
Assets
|
Significant Other
Observable Inputs
|
Significant
Unobservable
Inputs
|
|||||||||||||||||
|
Amount
|
(Level 1)
|
(Level 2)
|
(Level 3)
|
Total
|
||||||||||||||||
|
Financial Assets:
|
||||||||||||||||||||
|
Cash and cash equivalents
|
$
|
17,571
|
$
|
17,571
|
$
|
-
|
$
|
-
|
$
|
17,571
|
||||||||||
|
Restricted cash
|
28,375
|
28,375
|
-
|
-
|
28,375
|
|||||||||||||||
|
Prepaid expenses and other current assets
|
2,461
|
-
|
2,461
|
-
|
2,461
|
|||||||||||||||
|
Financial Liabilities:
|
||||||||||||||||||||
|
Accrued expenses
|
$
|
10,605
|
$
|
-
|
$
|
10,605
|
$
|
-
|
$
|
10,605
|
||||||||||
|
Other short term liabilities
|
2,324
|
-
|
2,324
|
-
|
2,324
|
|||||||||||||||
|
Credit facility
|
48,769
|
-
|
43,096
|
-
|
43,096
|
|||||||||||||||
|
December 31, 2017
|
||||||||||||||||||||
|
Carrying
|
Quoted Prices in
Active Markets
for Identical
Assets
|
Significant Other
Observable Inputs
|
Significant
Unobservable
Inputs |
|||||||||||||||||
|
Amount
|
(Level 1)
|
(Level 2)
|
(Level 3)
|
Total
|
||||||||||||||||
|
Financial Assets:
|
||||||||||||||||||||
|
Cash and cash equivalents
|
$
|
14,563
|
$
|
14,563
|
$
|
-
|
$
|
-
|
$
|
14,563
|
||||||||||
|
Restricted cash
|
39,991
|
39,991
|
-
|
-
|
39,991
|
|||||||||||||||
|
Prepaid expenses and other current assets
|
2,352
|
-
|
2,352
|
-
|
2,352
|
|||||||||||||||
|
Financial Liabilities:
|
||||||||||||||||||||
|
Accrued expenses
|
$
|
11,771
|
$
|
-
|
$
|
11,771
|
$
|
-
|
$
|
11,771
|
||||||||||
|
Other short term liabilities
|
558
|
-
|
558
|
-
|
558
|
|||||||||||||||
|
Credit facility
|
52,593
|
-
|
47,200
|
-
|
47,200
|
|||||||||||||||
We estimate fair value of Facility 1 and Facility 2 of the revolving credit facility based on a present value analysis utilizing aggregate market yields obtained from independent pricing sources for similar financial instruments. The
carrying value for Facility 3 of the revolving credit facility approximates fair value due to the fact that the borrowings were made in close proximity to December 31, 2017.
The carrying amounts reported on the Consolidated Balance Sheets for Cash and cash equivalents, Restricted cash and Noncurrent restricted cash
approximate fair value because they are highly liquid.
The carrying amounts reported on the Consolidated Balance Sheets for Prepaid expenses and Other current assets, Accrued expenses and Other short term
liabilities approximate fair value due to the short-term nature of these items.
|
13.
|
SEGMENT REPORTING
|
The for-profit education industry has been impacted by numerous regulatory changes, a changing economy and an onslaught of negative media attention. As
a result of these challenges, student populations have declined and operating costs have increased. Over the past few years, the Company has closed over ten locations and exited its online business. In 2017, the Company completed the
teach-out of its Center City Philadelphia, Pennsylvania; Northeast Philadelphia, Pennsylvania; West Palm Beach, Florida; Brockton, Massachusetts; and Lowell, Massachusetts schools. All of these schools were previously included in our HOPS
segment and as of December 31, 2017, they have all been closed.
In August 2018, the Company decided to cease operations, effective December 31, 2018, of its Lincoln College of New England (“LCNE”) campus at
Southington, Connecticut. LCNE results, which was previously reported in the HOPS segment, is now included in the Transitional segment as of December 31, 2018. The Company completed the teach-out and exited the LCNE campus on December 31,
2018.
In the past, we offered any combination of programs at any campus. We have shifted our focus to program offerings that create greater differentiation
among campuses and promote attainment of excellence to attract more students and gain market share. Also, strategically, we began offering continuing education training to select employers who hire our graduates and this is best achieved at
campuses focused on the applicable profession.
As a result of the regulatory environment, market forces and our strategic decisions, we now operate our business in three reportable segments: (a) the
Transportation and Skilled Trades segment; (b) the Healthcare and Other Professions segment; and (c) the Transitional segment. Our reportable segments have been determined based on a method by which we now evaluate performance and allocate
resources. Each reportable segment represents a group of post-secondary education providers that offer a variety of degree and non-degree academic programs. These segments are organized by key market segments to enhance operational
alignment within each segment to more effectively execute our strategic plan. Each of the Company’s schools is a reporting unit and an operating segment. Our operating segments are described below.
Transportation and Skilled Trades – The Transportation and Skilled Trades segment offers academic programs mainly in the career-oriented disciplines of transportation and
skilled trades (e.g. automotive, diesel, HVAC, welding and manufacturing).
Healthcare and Other Professions – The
Healthcare and Other Professions segment offers academic programs in the career-oriented disciplines of health sciences, hospitality and business and information technology (e.g. dental assistant, medical assistant, practical nursing,
culinary arts and cosmetology).
Transitional – The Transitional segment
refers to campuses that are being taught-out and closed and operations that are being phased out. The schools in the Transitional segment employ a gradual teach-out process that enables the schools to continue to operate to allow their
current students to complete their course of study. These schools are no longer enrolling new students.
The Company continually evaluates each campus for profitability, earning potential, and customer satisfaction. This evaluation takes several factors
into consideration, including the campus’s geographic location and program offerings, as well as skillsets required of our students by their potential employers. The purpose of this evaluation is to ensure that our programs provide our
students with the best possible opportunity to succeed in the marketplace with the goals of attracting more students to our programs and, ultimately, to provide our shareholders with the maximum return on their investment. Campuses in the
Transitional segment have been subject to this process and have been strategically identified for closure.
We evaluate segment performance based on operating results. Adjustments to reconcile segment results to consolidated results are included under the
caption “Corporate,” which primarily includes unallocated corporate activity.
For all prior periods presented, the Company reclassified its Marietta, Georgia campus from the HOPS segment to the Transportation and Skilled Trades
segment. This reclassification occurred to address how the Company evaluates performance and allocates resources and was approved by the Company’s Board of Directors.
Summary financial information by reporting segment is as follows:
|
For the Year Ended December 31,
|
||||||||||||||||||||||||||||||||||||
|
Revenue
|
Operating (Loss) Income
|
|||||||||||||||||||||||||||||||||||
|
2018
|
% of
Total
|
2017
|
% of
Total
|
2016
|
% of
Total
|
2018
|
2017
|
2016
|
||||||||||||||||||||||||||||
|
Transportation and Skilled Trades
|
$
|
185,263
|
70.4
|
%
|
$
|
181,328
|
69.2
|
%
|
$
|
182,276
|
63.8
|
%
|
$
|
17,661
|
$
|
17,795
|
$
|
21,578
|
||||||||||||||||||
|
Healthcare and Other Professions
|
72,135
|
27.4
|
%
|
63,641
|
24.3
|
%
|
62,870
|
22.0
|
%
|
6,469
|
3,937
|
(9,392
|
)
|
|||||||||||||||||||||||
|
Transitional
|
5,802
|
2.3
|
%
|
16,884
|
6.4
|
%
|
40,413
|
14.2
|
%
|
(5,994
|
)
|
(6,926
|
)
|
(16,995
|
)
|
|||||||||||||||||||||
|
Corporate
|
-
|
0.0
|
%
|
-
|
0.0
|
%
|
-
|
0.0
|
%
|
(22,090
|
)
|
(19,522
|
)
|
(24,105
|
)
|
|||||||||||||||||||||
|
Total
|
$
|
263,200
|
100
|
%
|
$
|
261,853
|
100
|
%
|
$
|
285,559
|
100
|
%
|
$
|
(3,954
|
)
|
$
|
(4,716
|
)
|
$
|
(28,914
|
)
|
|||||||||||||||
|
Total Assets
|
||||||||
|
December 31, 2018
|
December 31, 2017
|
|||||||
|
Transportation and Skilled Trades
|
$
|
92,070
|
$
|
81,751
|
||||
|
Healthcare and Other Professions
|
14,078
|
8,297
|
||||||
|
Transitional
|
527
|
4,812
|
||||||
|
Corporate
|
39,363
|
60,353
|
||||||
|
Total
|
$
|
146,038
|
$
|
155,213
|
||||
|
14.
|
COMMITMENTS AND CONTINGENCIES
|
Lease Commitments—The Company leases office
premises, educational facilities and various equipment for varying periods through the year 2030 at basic annual rentals (excluding taxes, insurance, and other expenses under certain leases) as follows:
|
Year Ending December 31,
|
Operating
Leases
|
|||
|
2019
|
$
|
16,939
|
||
|
2020
|
14,183
|
|||
|
2021
|
10,708
|
|||
|
2022
|
8,180
|
|||
|
2023
|
5,811
|
|||
|
Thereafter
|
17,610
|
|||
|
$
|
73,431
|
|||
Rent expense, included in operating expenses in the accompanying consolidated statements of operations for the three years ended December 31, 2018, 2017
and 2016 is $17.8 million, $17.4 million and $20.7 million, respectively.
Litigation and Regulatory Matters— In the ordinary conduct of our business, we are subject to periodic lawsuits, investigations and claims,
including, but not limited to, claims involving students or graduates and routine employment matters. Although we cannot predict with certainty the ultimate resolution of lawsuits, investigations and claims asserted against us, we do not
believe that any currently pending legal proceeding to which we are a party will have a material effect on our business, financial condition, results of operations or cash flows.
Student Loans—At December 31, 2018, the Company had outstanding net loan commitments to its students to assist them in financing their education of approximately $46.2 million, net of interest.
Vendor Relationship—The Company is party to an agreement with Matco Tools (“Matco”), which expires on July 31, 2019. The Company has agreed to grant Matco exclusive access to 12 campuses and its students and
instructors. This exclusivity includes but is not limited to, all other tool manufacturers and/or tool distributors, by whatever means, during the term of the agreement. Under the agreement, the Company will be provided, on an advance
commission basis, credits which are redeemable in branded tools, tools storage, equipment, and diagnostics products over the term of the contract.
Executive Employment
Agreements—The Company entered into employment contracts with key executives that provide for continued salary payments if the executives are terminated for reasons other than cause, as defined in the agreements. The future
employment contract commitments for such employees were approximately $3.1 million at December 31, 2018.
Change in Control Agreements—In
the event of a change of control several key executives will receive continued salary payments based on their employment agreements.
Surety Bonds—Each of
the Company’s campuses must be authorized by the applicable state education agency in which the campus is located to operate and to grant degrees, diplomas or certificates to its students. The campuses are subject to extensive, ongoing
regulation by each of these states. In addition, the Company’s campuses are required to be authorized by the applicable state education agencies of certain other states in which the campuses recruit students. The Company is required to post
surety bonds on behalf of its campuses and education representatives with multiple states to maintain authorization to conduct its business. At December 31, 2018, the Company has posted surety bonds in the total amount of approximately $12.7
million.
|
15.
|
RELATED PARTY
|
The Company has an agreement with Matco Tools, whereby Matco will provide to the Company, on an advance commission basis, credits in Matco-branded
tools, tool storage, equipment, and diagnostics products. The chief executive officer of the parent company of Matco is considered an immediate family member of one of the Company’s board members. The amount of the Company’s purchases from
this third party were $1.8 million and $2.4 million for the year ended December 31, 2018 and 2017, respectively. Management believes that its agreement with Matco is an arm’s length transaction and on similar terms as would have been obtained
from unaffiliated third parties.
|
16.
|
UNAUDITED QUARTERLY FINANCIAL INFORMATION
|
The following tables have been updated to reflect changes in discontinued operations. Quarterly financial information for 2018 and 2017 is as follows:
|
Quarter
|
||||||||||||||||
|
2018
|
First
|
Second
|
Third
|
Fourth
|
||||||||||||
|
Revenue
|
$
|
61,889
|
$
|
61,120
|
$
|
70,078
|
$
|
70,113
|
||||||||
|
Net (loss) income
|
(6,874
|
)
|
(4,104
|
)
|
(600
|
)
|
5,033
|
|||||||||
|
Basic
|
||||||||||||||||
|
Net (loss) earnings per share
|
$
|
(0.28
|
)
|
$
|
(0.17
|
)
|
$
|
(0.02
|
)
|
$
|
0.21
|
|||||
|
Diluted
|
||||||||||||||||
|
Net (loss) earnings per share
|
$
|
(0.28
|
)
|
$
|
(0.17
|
)
|
$
|
(0.02
|
)
|
$
|
0.20
|
|||||
|
Weighted average number of common shares outstanding:
|
||||||||||||||||
|
Basic
|
24,138
|
24,486
|
24,533
|
24,533
|
||||||||||||
|
Diluted
|
24,138
|
24,486
|
24,533
|
24,562
|
||||||||||||
|
Quarter
|
||||||||||||||||
|
2017
|
First
|
Second
|
Third
|
Fourth
|
||||||||||||
|
Revenue
|
$
|
65,279
|
$
|
61,865
|
$
|
67,308
|
$
|
67,401
|
||||||||
|
Net (loss) income
|
(10,929
|
)
|
(6,771
|
)
|
(1,490
|
)
|
7,707
|
|||||||||
|
Basic
|
||||||||||||||||
|
Net (loss) earnings per share
|
$
|
(0.46
|
)
|
$
|
(0.28
|
)
|
$
|
(0.06
|
)
|
$
|
0.32
|
|||||
|
Diluted
|
||||||||||||||||
|
Net (loss) earnings per share
|
$
|
(0.46
|
)
|
$
|
(0.28
|
)
|
$
|
(0.06
|
)
|
$
|
0.31
|
|||||
|
Weighted average number of common shares outstanding:
|
||||||||||||||||
|
Basic
|
23,609
|
23,962
|
24,024
|
24,025
|
||||||||||||
|
Diluted
|
23,609
|
23,962
|
24,024
|
24,590
|
||||||||||||
LINCOLN EDUCATIONAL SERVICES CORPORATION
Schedule II—Valuation and Qualifying Accounts
(in thousands)
|
Description
|
Balance at
Beginning
of Period
|
Charged to
Expense
|
Accounts
Written-off
|
Balance at
End of
Period
|
||||||||||||
|
Allowance accounts for the year ended:
|
||||||||||||||||
|
December 31, 2018 Student receivable allowance
|
$
|
13,784
|
$
|
17,705
|
$
|
(14,496
|
)
|
$
|
16,993
|
|||||||
|
December 31, 2017 Student receivable allowance
|
$
|
14,794
|
$
|
13,720
|
$
|
(14,730
|
)
|
$
|
13,784
|
|||||||
|
December 31, 2016 Student receivable allowance
|
$
|
14,074
|
$
|
14,592
|
$
|
(13,872
|
)
|
$
|
14,794
|
|||||||
|
Exhibit Index
|
|
|
Exhibit
Number
|
Description
|
|
Purchase and Sale Agreement, dated March 14, 2017, between New England Institute of Technology at Palm Beach, Inc. and Tambone Companies, LLC,
as amended by First Amendment to Purchase and Sale Agreement dated as of April 18, 2017, and as further amended by Second Amendment to Purchase and Sale Agreement dated as of May 12, 2017 (incorporated by reference to the Company’s
Form 8-K filed August 16, 2017).
|
|
|
Amended and Restated Certificate of Incorporation of the Company (incorporated
by reference to the Company’s Registration Statement on Form S-1/A (Registration No. 333-123644) filed June 7, 2005).
|
|
|
Bylaws of the Company, as amended on March 8, 2019
|
|
|
Specimen Stock Certificate evidencing shares of common stock (Incorporated by reference to the Company’s Registration Statement on Form S-1/A
(Registration No. 333-123644) filed June 21, 2005).
|
|
|
Credit Agreement, dated as of March 31, 2017, among the Company, Lincoln Technical Institute, Inc. and its subsidiaries, and Sterling National
Bank (Incorporated by reference to the Company’s Form 8-K filed April 6, 2017).
|
|
|
Credit Agreement, dated as of April 28, 2017, among the Company, Lincoln Technical Institute, Inc. and its subsidiaries, and Sterling National
Bank (Incorporated by reference to the Company’s Form 8-K filed May 4, 2017).
|
|
|
First Amendment to Credit Agreement, dated as of November 29, 2017, among the Company, Lincoln Technical Institute, Inc. and its subsidiaries,
and Sterling National Bank (Incorporated by reference to the Company’s Form 8-K filed December 1, 2017)
|
|
|
Second Amendment to Credit Agreement, dated as of February 23, 2018, among the Company, Lincoln Technical Institute, Inc. and its subsidiaries,
and Sterling National Bank (Incorporated by reference to the Company’s Form 8-K filed February 26, 2018)
|
|
|
Third Amendment to Credit Agreement, dated as of July 11, 2018, among the Company, Lincoln Technical Institute, Inc. and its subsidiaries, and
Sterling National Bank (Incorporated by reference to the Company’s Form 8-K filed July 13, 2018).
|
|
|
Fourth Amendment to Credit Agreement, dated as of March 6, 2019, among the Company, Lincoln Technical Institute, Inc. and its subsidiaries, and
Sterling National Bank
|
|
|
Commercial Contract, dated as of July 9, 2018, between New England Institute of Technology at Palm Beach, Inc. and Elite Property Enterprise,
LLC (Incorporated by reference to the Company’s Form 8-K filed July 13, 2018).
|
|
|
Employment Agreement, dated as of November 8, 2017, between the Company and Scott M. Shaw (Incorporated by reference to the Company’s Quarterly
Report on Form 10-Q filed November 13, 2017).
|
|
|
Employment Agreement, dated as of November 7, 2018, between the Company and Scott M. Shaw (Incorporated by reference to the Company’s Quarterly Report on Form 10-Q filed November 9, 2018).
|
|
|
Employment Agreement, dated as of November 8, 2017, between the Company and Brian
K. Meyers (Incorporated by reference to the Company’s Quarterly Report on Form 10-Q filed November 13, 2017).
|
|
|
Employment Agreement, dated as of November 7, 2018, between the Company and Brian K. Meyers (Incorporated by reference to the Company’s Quarterly Report on Form 10-Q filed November 9, 2018).
|
|
|
Change in Control Agreement, dated as of November 8, 2017, between the Company and Deborah Ramentol (Incorporated by reference to the Company’s
Quarterly Report on Form 10-Q filed November 13, 2017).
|
|
|
Change in Control Agreement, dated as of November 7, 2018, between the Company and Stephen M. Buchenot (Incorporated by reference to the
Company’s Quarterly Report on Form 10-Q filed November 9, 2018).
|
|
|
Lincoln Educational Services Corporation Amended and Restated 2005 Long-Term Incentive Plan (Incorporated by reference to the Company’s Form
8-K filed May 6, 2013).
|
|
|
Lincoln Educational Services Corporation Amended and Restated 2005 Non-Employee Directors Restricted Stock Plan (Incorporated by reference to
the Company’s Registration Statement on Form S-8 (Registration No. 333-211213) filed May 6, 2016).
|
|
|
Lincoln Educational Services Corporation 2005 Deferred Compensation Plan (Incorporated by reference to the Company’s Registration Statement
on Form S-1 (Registration No. 333-123644) filed March 29, 2005).
|
|
|
Form of Stock Option Agreement under our 2005 Long-Term Incentive Plan (Incorporated by reference to the Company’s Annual Report on Form 10-K
for the year ended December 31, 2007).
|
|
|
Form of Restricted Stock Agreement under our 2005 Long-Term Incentive Plan (Incorporated by reference to the Company’s Annual Report on Form
10-K for the year ended December 31, 2012).
|
|
|
Form of Performance-Based Restricted Stock Award Agreement under our Amended & Restated 2005 Long-Term Incentive Plan (Incorporated by
reference to the Company’s Form 8-K filed May 5, 2011).
|
|
|
Subsidiaries of the Company.
|
|
|
Consent of Independent Registered Public Accounting Firm.
|
|
|
Power of Attorney (included on the Signatures page of the Company's Annual Report on Form 10-K filed March 13, 2019).
|
|
|
Certification of Chief Executive Officer pursuant to Section 302 of the Sarbanes-Oxley Act of 2002.
|
|
|
Certification of Chief Financial Officer pursuant to Section 302 of the Sarbanes-Oxley Act of 2002.
|
|
|
Certification of Chief Executive Officer and Chief Financial Officer pursuant to 18 U.S.C. 1350, as adopted pursuant to Section 906 of the
Sarbanes-Oxley Act of 2002.
|
|
|
101**
|
The following financial statements from Lincoln Educational Services Corporation’s Annual Report on Form 10-K for the year ended December 31,
2018, formatted in XBRL: (i) Consolidated Statements of Operations, (ii) Consolidated Balance Sheets, (iii) Consolidated Statements of Cash Flows, (iv) Consolidated Statements of Comprehensive (Loss) Income, (v) Consolidated
Statement of Changes in Stockholders’ Equity and (vi) the Notes to Consolidated Financial Statements, tagged as blocks of text and in detail.
|
| * |
Filed herewith.
|
|
**
|
As provided in Rule 406T of Regulation S-T, this information is furnished and not filed for purposes of Sections 11 and 12 of the Securities
Act of 1933 and Section 18 of the Securities Exchange Act of 1934
|
Exhibit 3.2
BYLAWS
OF
LINCOLN EDUCATIONAL SERVICES CORPORATION
As last amended on March 8, 2019.
Table of Contents
|
Section
|
Page
|
|
ARTICLE I
|
|
|
OFFICES
|
|
|
SECTION 1.01. Registered Office
|
1
|
|
SECTION 1.02. Other Offices
|
1
|
|
ARTICLE II
|
|
|
MEETINGS OF STOCKHOLDERS
|
|
|
SECTION 2.01. Annual Meetings
|
1
|
|
SECTION 2.02. Special Meetings
|
1
|
|
SECTION 2.03. Notice and Business of Meetings
|
1
|
|
SECTION 2.04. Waiver of Notice
|
4
|
|
SECTION 2.05. Adjournments
|
5
|
|
SECTION 2.06. Quorum
|
5
|
|
SECTION 2.07. Voting
|
5
|
|
SECTION 2.08. Action Without Meeting
|
6
|
|
SECTION 2.09. Organization
|
6
|
|
ARTICLE III
|
|
|
BOARD
|
|
|
SECTION 3.01. General Powers
|
6
|
|
SECTION 3.02. Number and Term of Office
|
6
|
|
SECTION 3.03. Resignation
|
7
|
|
SECTION 3.04. Removal
|
7
|
|
SECTION 3.05. Vacancies
|
7
|
|
SECTION 3.06. Meetings
|
7
|
|
SECTION 3.07. Committees of the Board
|
9
|
|
SECTION 3.08. Directors’ Consent in Lieu of Meeting
|
9
|
|
SECTION 3.09. Compensation
|
9
|
|
SECTION 3.10. Interested Directors; Quorum
|
9
|
i
|
ARTICLE IV
|
|
|
OFFICERS
|
|
|
SECTION 4.01. Officers
|
10
|
|
SECTION 4.02. Authority and Duties
|
10
|
|
SECTION 4.03. Term of Office, Resignation and Removal
|
10
|
|
SECTION 4.04. Vacancies
|
10
|
|
SECTION 4.05. The Chairman
|
10
|
|
SECTION 4.06. The Chief Executive Officer
|
11
|
|
SECTION 4.07. The President
|
11
|
|
SECTION 4.08. The Chief Operating Officer. The Chief Operating Officer shall perform such duties
as may be prescribed from time to time by the Chairman, the Chief Executive Officer or the Board.
|
11
|
|
SECTION 4.09. Vice Presidents
|
11
|
|
SECTION 4.10. The Secretary
|
11
|
|
SECTION 4.11. Assistant Secretaries
|
11
|
|
SECTION 4.12. The Treasurer
|
12
|
|
SECTION 4.13. Assistant Treasurers
|
12
|
|
ARTICLE V
|
|
|
CHECKS, DRAFTS, NOTES, AND PROXIES
|
|
|
SECTION 5.01. Checks, Drafts and Notes
|
12
|
|
SECTION 5.02. Execution of Proxies
|
12
|
|
ARTICLE VI
|
|
|
SHARES AND TRANSFERS OF SHARES
|
|
|
SECTION 6.01. Certificates Evidencing Shares
|
12
|
|
SECTION 6.02. Stock Ledger
|
13
|
|
SECTION 6.03. Transfers of Shares
|
13
|
|
SECTION 6.04. Addresses of Stockholders
|
13
|
|
SECTION 6.05. Lost, Destroyed and Mutilated Certificates
|
13
|
|
SECTION 6.06. Regulations
|
14
|
|
SECTION 6.07. Fixing Date for Determination of Stockholders of Record
|
14
|
|
ARTICLE VII
|
|
|
SEAL
|
|
|
SECTION 7.01. Seal
|
14
|
ii
|
ARTICLE VIII
|
|
|
FISCAL YEAR
|
|
|
SECTION 8.01. Fiscal Year
|
14
|
|
ARTICLE IX
|
|
|
INDEMNIFICATION AND INSURANCE
|
|
|
SECTION 9.01. Indemnification
|
14
|
|
SECTION 9.02. Directors, Trustees, Officers and Employees of Other Companies
|
15
|
|
SECTION 9.03. Indemnification Not Exclusive
|
15
|
|
SECTION 9.04. Insurance
|
15
|
|
ARTICLE X
|
|
|
AMENDMENTS
|
|
|
SECTION 10.01. General Procedure
|
16
|
|
ARTICLE XI
|
|
|
FORUM SELECTION
|
|
|
SECTION 11.01. Forum Selection
|
16
|
iii
BYLAWS
OF
LINCOLN EDUCATIONAL SERVICES CORPORATION
ARTICLE I
OFFICES
OFFICES
SECTION 1.01. Registered Office. The registered office of Lincoln Educational Services Corporation (the “Corporation”) in the State of New Jersey shall be at the principal office of the corporation
and the registered agent in charge thereof shall be Alexandra Luster.Other Offices. The Corporation may also have an office or offices at any other place or
places within or without the State of New Jersey as the Board of the Corporation (the “Board”) may from time to time determine or the business of the Corporation may from time to time require.
MEETINGS OF STOCKHOLDERS
SECTION 2.01. Annual
Meetings. The annual meeting of stockholders of the Corporation for the election of directors of the Corporation, and for the transaction of such other business as may properly come before such meeting, shall be held at such
place, date and time as shall be fixed by the Board and designated in the notice or waiver of notice of such annual meeting.
SECTION 2.02. Special
Meetings. Special meetings of stockholders for any purpose or purposes may be called by the Chairman of the Board or the President or by the Board pursuant to a resolution duly adopted by a majority of the members of the entire
Board, to be held at such place, date and time as shall be designated in the notice or waiver of notice thereof. Only business within the purposes described in the notice required by Section 2.03 of this Article II may be conducted at the
special meeting. The Superior Court, at the request of holder or holders of not less than 10% of the shares entitled to vote at the meeting, may call a special meeting of stockholders of the Corporation pursuant to Section 14A:5‑3 of the New
Jersey Business Corporation Act (“NJBCA”).
SECTION 2.03. Notice
and Business of Meetings. (a) General. Except as otherwise provided by law, written notice of each meeting of stockholders shall be given either by
delivering a notice personally or mailing a notice to each stockholder of record entitled to vote thereat. If mailed, the notice shall be directed to the stockholder in a postage‑prepaid envelope at his address as it appears on the stock books
of the Corporation unless, prior to the time of mailing, he or she shall have filed with the Secretary a written request that notices intended for him be mailed to some other address, in which case it shall be mailed to the address designated in
such request. Notice of each meeting of stockholders shall be in such form as is approved by the Board and shall state the purpose or purposes for which the meeting is called, the date and time when and the place where it is to be held, and
shall be delivered personally or mailed not more than sixty (60) days and not less than ten (10) days before the day of the meeting. Except as otherwise provided by law, the business which may be transacted at any special meeting of stockholders
shall consist of and be limited to the purpose or purposes so stated in such notice. The Secretary or an Assistant Secretary or the transfer agent of the Corporation shall, after giving such notice, make an affidavit stating that notice has been
given, which shall be filed with the minutes of such meeting.
(b) Advance
Notice Provisions for Business to Be Transacted at Annual Meeting. (i) No business may be transacted at an annual meeting of stockholders, other than
business that is either (A) specified in the notice of meeting (or any supplement thereto) given by the President or the Chairman or at the direction of the Board (or any duly authorized committee thereof), (B) otherwise properly brought before
the annual meeting by or at the direction of the Board (or any duly authorized committee thereof) or (C) otherwise properly brought before the annual meeting by any stockholder of the Corporation who (1) is a stockholder of record on both (x) the
date of the giving of the notice provided for in this Section 2.03 and (y) the record date for the determination of stockholders entitled to vote at such annual meeting, (2) complies with the notice procedures set forth in this Section 2.03(b)
and (3) meets the other qualifications established from time to time by the U.S. Securities and Exchange Commission.
(ii) In addition to any other applicable requirements and unless otherwise
provided by law, for business to be properly brought before an annual meeting by a stockholder, such stockholder must have given timely notice thereof in proper written form to the Secretary of the Corporation.
(A) To be timely, a stockholder’s notice shall be delivered to the Secretary at the principal executive offices of the Corporation not less than one hundred twenty (120) days nor more than one hundred fifty (150)
days prior to the first anniversary of the date the proxy statement was released to shareholders for the preceding year’s annual meeting; provided, however, that in the event that the date of the annual meeting is advanced by more than thirty (30) days or delayed by more than sixty (60) days from such
anniversary date, notice by the stockholder to be timely must be delivered not earlier than the one hundred fiftieth (150th) day prior to such annual meeting and not later than the close of business on the later of the one hundred twentieth
(120th) day prior to such annual meeting or the tenth (10th) day following the day on which public announcement of the date of such meeting is first made; provided further that for purposes of the annual meeting of stockholders held following the end of the fiscal year ending on December 31, 2005, the date the proxy
statement was released to shareholders for the preceding year’s annual meeting shall be deemed to be April 30, 2005.
(B) To be in proper written form, a stockholder’s notice to the Secretary must set forth as to each matter such stockholder proposes to bring before the annual meeting (1) a brief description of the business desired
to be brought before the annual meeting and the reasons for conducting such business at the annual meeting, (2) the name and record address of such stockholder, (3) the class or series and number of shares of capital stock of the Corporation
which are owned beneficially or of record by such stockholder, (4) a description of all arrangements or understandings between such stockholder and any other person or persons (including their names) in connection with the proposal of such
business by such stockholder and any material interest of such stockholder in such business and (5) a representation that such stockholder intends to appear in person or by proxy at the annual meeting to bring such business before the
meeting. As used in these by‑laws, “beneficially owned” means all shares which such person is deemed to beneficially own pursuant to Rules 13d‑3 and 13d‑5 under the Securities Exchange Act of 1934, as amended (the “Exchange Act”).
2
(iii) No business shall be conducted at the annual meeting of stockholders
except business brought before the annual meeting in accordance with the procedures set forth in this Section 2.03, provided, however, that, once business has been properly brought before the annual meeting in accordance with such procedures, nothing in this Section 2.03 shall be deemed to preclude discussion by any
stockholder of any such business. If the chairman of an annual meeting determines that business was not properly brought before the annual meeting in accordance with the foregoing procedures, the chairman shall declare to the meeting that the
business was not properly brought before the meeting and such business shall not be transacted.
(c) Advance
Notice Provisions for Election of Directors. (i) In addition to any other applicable requirements and unless otherwise provided by law, for a nomination for election of a director to be made by a stockholder of the Corporation,
such stockholder must (A) be a stockholder of record on both (1) the date of the giving of the notice provided for in this Section 2.03 and (2) the record date for the determination of stockholders entitled to vote at such annual meeting and
(B) have given timely notice thereof in proper written form to the Secretary of the Corporation. If a stockholder is entitled to vote only for a specific class or category of directors at a meeting of the stockholders, such stockholder’s right
to nominate one or more persons for election as a director at the meeting shall be limited to such class or category of directors.
(ii) To be timely in connection with the annual meeting of the stockholders, a
stockholder’s notice shall be delivered to the Secretary at the principal executive offices of the Corporation not less than one hundred twenty (120) days nor more than one hundred fifty (150) days prior to the first anniversary of the date the
proxy statement was released to shareholders for the preceding year’s annual meeting; provided, however,
that in the event that the date of the annual meeting is advanced by more than thirty (30) days or delayed by more than sixty (60) days from such anniversary date, notice by the stockholder to be timely must be delivered not earlier than the one
hundred fiftieth (150th) day prior to such annual meeting and not later than the close of business on the later of the one hundred twentieth (120th) day prior to such annual meeting or the tenth (10th) day following the day on which public
announcement of the date of such meeting is first made; provided further that for purposes
of the annual meeting of stockholders held following the end of the fiscal year ending on December 31, 2005, the date the proxy statement was released to shareholder’s for the preceding year’s annual meeting shall be deemed to be April 30, 2005.
In the event the Corporation calls a special meeting of stockholders for the purpose of electing one or more directors to the Board, any stockholder entitled to vote for the election of such director(s) at such meeting and satisfying the
requirements specified in Section 2.03(c)(i) may nominate a person or persons (as the case may be) for election to such position(s) as are specified in the Corporation’s notice of such meeting, but only if the stockholder notice required by
Section 2.03(c)(iii) hereof shall be delivered to the Secretary at the principal executive office of the Corporation not later than the close of business on the tenth (10th) day following the first day on which the date of the special meeting and
either the names of all nominees proposed by the Board to be elected at such meeting or the number of directors to be elected shall have been publicly announced.
3
(iii) To be in proper written form, a stockholder’s notice to the Secretary must
be set forth (A) as to each person whom the stockholder proposes to nominate for election as a director (1) the name, age, business address and residence address of the person, (2) the principal occupation or employment of the person, (3) the
class or series and number of shares of capital stock of the Corporation, if any, which are owned beneficially or of record by the person and (4) any other information relating to the person that would be required to be disclosed in a proxy
statement or other filings required to be made in connection with solicitations of proxies for election of directors pursuant to Section 14 of the Exchange Act and the rules and regulations promulgated thereunder; and (B) as to the stockholder
giving notice (1) the name and record address of such stockholder, (2) the class or series and number of shares of capital stock of the Corporation which are owned beneficially or of record by such stockholder, (3) a description of all
arrangements or understandings between such stockholder and each proposed nominee and any other person or persons (including their names) pursuant to which the nomination(s) are to be made by such stockholder, (4) a representation that such
stockholder intends to appear in person or by proxy at the annual meeting to nominate the person(s) named in its notice and (5) any other information relating to such stockholder that would be required to be disclosed in a proxy statement or
other filings required to be made in connection with solicitations of proxies for election of directors pursuant to Section 14 of the Exchange Act and the rules and regulations promulgated thereunder. Such notice must be accompanied by a written
consent of each proposed nominee to being named as a nominee and to serve as a director if elected.
(iv) No person shall be eligible for election as a director of the Corporation
unless nominated in accordance with the procedures set forth in this Section 2.03(c). If the chairman of an annual meeting determines that a nomination was not made in accordance with the foregoing procedures, the chairman shall declare to the
meeting that the nomination was defective and such defective nomination shall be disregarded.
(v) This Section 2.03(c) shall not apply to any nomination of a director in an
election in which only the holders of one or more series of Preferred Stock of the Corporation issued pursuant to Article IV of the Certificate of Incorporation of the Corporation (the “Certificate of Incorporation”) are entitled to vote (unless otherwise provided in the terms of such series of Preferred Stock).
(d) Definition
of Publicly Announced. For purposes of this Section 2.03, a matter shall be deemed to have been “publicly announced” if such matter is disclosed in a press release reported by the Dow Jones News Service, the Associated Press or a
comparable national news service or in a document publicly filed by the Corporation with the Securities and Exchange Commission.
SECTION 2.04. Waiver
of Notice. Notice of any annual or special meeting of stockholders need not be given to any stockholder who files a written waiver of notice with the Secretary, signed by the person entitled to notice, whether before or after such
meeting. Neither the business to be transacted at, nor the purpose of, any meeting of stockholders need be specified in any written waiver of notice thereof. Attendance of a stockholder at a meeting, in person or by proxy, without protesting
prior to the conclusion of said meeting the transaction of any business on the grounds that the notice of such meeting was inadequate or improperly given.
4
SECTION 2.05. Adjournments.
Whenever a meeting of stockholders, annual or special, is adjourned to another date, time or place, notice need not be given of the adjourned meeting if the date, time and place thereof are announced at the meeting at which the adjournment is
taken. If the adjournment is for more than 30 days, or if after the adjournment a new record date is fixed for the adjourned meeting, a notice of the adjourned meeting shall be given to each stockholder entitled to vote thereat. At the
adjourned meeting, any business may be transacted which might have been transacted at the original meeting.
SECTION 2.06. Quorum.
Except as otherwise provided by law or the Certificate of Incorporation, the recordholders of a majority of the shares entitled to vote thereat, present in person or by proxy, shall constitute a quorum for the transaction of business at all
meetings of stockholders, whether annual or special. In the absence of a quorum, any meeting of stockholders may be adjourned, from time to time, either by the chairman of the meeting or by vote of the holders of a majority of the shares
represented thereat, but no other business shall be transacted at such meeting. The stockholders present at a duly called or convened meeting, at which a quorum is present, may continue to transact business until adjournment, notwithstanding
the withdrawal of enough stockholders to leave less than a quorum. Except as otherwise provided by law, the Certificate of Incorporation or these Bylaws, all action taken by the holders of a majority of the vote cast, excluding abstentions,
at any meeting at which a quorum is present shall be valid and binding upon the Corporation; provided, however, that directors shall be elected by a plurality of the votes of the shares present in person or represented by proxy at the meeting
and entitled to vote on the election of directors. Where a separate vote by a class or classes or series is required, except where otherwise provided by the statute or by the Certificate of Incorporation or these Bylaws, a majority of the
outstanding shares of such class or classes or series, present in person or represented by proxy, shall constitute a quorum entitled to take action with respect to that vote on that matter and, except where otherwise provided by the statute
or by the Certificate of Incorporation or these Bylaws, the affirmative vote of the majority (plurality, in the case of the election of directors) of the votes cast, including abstentions, by the holders of shares of such class or classes or
series shall be the act of such class or classes or series.
SECTION 2.07. Voting. Except as otherwise provided in the Certificate of Incorporation, each stockholder entitled to vote at any meeting of stockholders shall be entitled to one vote for each share of stock
held by such stockholder which has voting power upon the matter in question. The ability of the stockholders to engage in cumulative voting is specifically denied. If the Certificate of Incorporation provides for more or less than one vote
for any share on any matter, every reference in these Bylaws to a majority or other proportion of shares of stock shall refer to such majority or other proportion of the votes of such shares of stock. Each stockholder entitled to vote at a
meeting of stockholders may authorize another person or persons to act for such stockholder by proxy, but no such proxy shall be voted or acted upon after eleven months from its date, unless the proxy provides for a longer period. Such proxy
shall be filed with the Secretary before such meeting of stockholders. A duly executed proxy shall be irrevocable if it states that it is irrevocable and if, and only as long as, it is coupled with an interest sufficient in law to support an
irrevocable power, regardless of whether the interest with which it is coupled is an interest in the stock itself or an interest in the Corporation generally pursuant to Section 14A:5‑19 of the NJBCA. A stockholder may revoke any proxy which
is not irrevocable by attending the meeting and voting in person by written ballot or by filing an instrument in writing revoking the proxy or another duly executed proxy bearing a later date with the Secretary. Voting at meetings of
stockholders need not be by written ballot unless so directed by the chairman of the meeting or the Board or otherwise required by law.Action Without Meeting.
Action may be taken by the stockholders without a meeting only by written consent adopted by all the stock holders entitled to vote thereon in accordance with Section 14A:5‑6 of the NJBCA.
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SECTION 2.09. Organization. (a) At every meeting of stockholders, the Chairman of the Board, or, if a Chairman has not
been appointed or is absent, the Chief Executive Officer, or if a Chief Executive Officer has not been appointed or is absent, the President, or, if the President is absent, a chairman of the meeting chosen by a majority in interest of the
stockholders entitled to vote, present in person or by proxy, shall act as chairman. The Secretary, or, in his or her absence, an Assistant Secretary directed to do so by the Chief Executive Officer, or President, shall act as secretary of
the meeting.
(b) The Board shall be entitled to make such rules or
regulations for the conduct of meetings of stockholders as it shall deem necessary, appropriate or convenient. Subject to such rules and regulations of the Board, if any, the chairman of the meeting shall have the right and authority to
prescribe such rules, regulations and procedures and to do all such acts as, in the judgment of such chairman, are necessary, appropriate or convenient for the proper conduct of the meeting, including, without limitation, establishing an
agenda or order of business for the meeting, rules and procedures for maintaining order at the meeting and the safety of those present, limitations on participation in such meeting to stockholders of record of the Corporation and their duly
authorized and constituted proxies and such other persons as the chairman shall permit, restrictions on entry to the meeting after the time fixed for the commencement thereof, limitations on the time allotted to questions or comments by
participants and regulation of the opening and closing of the polls for balloting on matters which are to be voted on by ballot. Unless and to the extent determined by the Board or the chairman of the meeting, meetings of stockholders shall
not be required to be held in accordance with rules of parliamentary procedure.
ARTICLE III
BOARD
BOARD
SECTION 3.01. General Powers. The business and affairs of the Corporation shall be managed by the Board, which may exercise all such powers of the Corporation and do all such lawful acts and things as are not
by law, the Certificate of Incorporation or these Bylaws directed or required to be exercised or done by stockholders.
SECTION 3.02. Number and Term of Office. The number of directors constituting the Board shall be the number, not less than three nor more than 11, as shall be fixed from time to time by the Board. Directors
need not be stockholders. If for any cause, the directors shall not have been elected at an annual meeting, they may be elected as soon thereafter as convenient at a special meeting of the stockholders called for that purpose in the manner
provided in these Bylaws. No decrease in the number of directors constituting the Board shall shorten the term of any incumbent director.
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SECTION 3.03. Resignation. Any director may resign at any time by delivering his written resignation to the Secretary, such resignation to specify whether it will be effective at a particular time, upon
receipt by the Secretary or at the pleasure of the Board. If no such specification is made, it shall be deemed effective upon receipt by the Secretary. When one or more directors shall resign from the Board, effective at a future date, a
majority of the directors then in office, including those who have so resigned, shall have power to fill such vacancy or vacancies, the vote thereon to take effect when such resignation or resignations shall become effective, and each
director so chosen shall hold office for the unexpired portion of the term of the director whose place shall be vacated and until his successor shall have been duly elected and qualified.
SECTION 3.04. Removal. Subject to the rights of the holders of any series of Preferred Stock then outstanding, (a) any director, or the entire Board, may be removed from office at any time, but only for cause,
by the affirmative vote of the holders of record of outstanding shares representing at least a majority of the voting power of all the shares of capital stock of the Corporation then entitled to vote generally in the election of directors,
voting together as a single class, and (b) any director may be removed from office at any time, but only for cause, by the affirmative vote of a majority of the entire Board.
SECTION 3.05. Vacancies. Unless otherwise provided in the Certificate of Incorporation, any vacancies on the Board resulting from death, resignation, disqualification, removal or other causes, and any newly
created directorships resulting from any increase in the number of directors, shall be filled only by the affirmative vote of a majority of the remaining directors, even though less than a quorum of the Board. Any director elected in
accordance with the preceding sentence shall hold office for the remainder of the full term of the director for which the vacancy was created or occurred and until such director's successor shall have been elected and qualified. A vacancy on
the Board shall be deemed to exist under this Bylaw in the case of the death, removal or resignation of any director. Notwithstanding the above, in the event that the Board shall fail to fill such a vacancy, the stockholders may fill such
vacancy at an annual stockholders meeting or at a special meeting of stockholders called for that purpose.
SECTION 3.06. Meetings. (a) Annual Meetings. The annual meeting of the Board shall be held immediately before or after
the annual meeting of stockholders and may be at the place where such meeting is held. No notice of an annual meeting of the Board shall be necessary and such meeting shall be held for the purpose of electing officers and transacting such
other business as may lawfully come before it.
(b) Regular Meetings. Except as hereinafter otherwise provided, regular meetings of the Board shall be held in the office of the Corporation required to be maintained pursuant to Section 1.02
hereof. Unless otherwise restricted by the Certificate of Incorporation, regular meetings of the Board may also be held at any place within or without the State of New Jersey which has been designated by resolution of the Board or the
written consent of all directors.
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(c) Special Meetings. Unless otherwise restricted by the Certificate of Incorporation, special meetings of the Board may be held at any time and place within or without the State of New Jersey
whenever called by the Chairman of the Board, the President, the Chief Financial Officer or any two of the directors.
(d) Telephone Meetings. Any member of the Board, or of any committee thereof, may participate in a meeting by means of conference telephone or similar communications equipment by means of which all
persons participating in the meeting can hear each other, and participation in a meeting by such means shall constitute presence in person at such meeting.
(e) Notice of Meetings. Notice of the time and place of all special meetings of the Board shall be orally or in writing, by telephone, facsimile, electronic mail, telegraph or telex, during normal
business hours, at least twenty‑four (24) hours before the date and time of the meeting, or sent in writing to each director by first class mail, charges prepaid, at least three (3) days before the date of the meeting. Notice of any meeting
may be waived in writing at any time before or after the meeting and will be waived by any director by attendance thereat, without protesting the lack of proper notice prior to the conclusion of the meeting.
(f) Waiver of Notice. The transaction of all business at any meeting of the Board, or any committee thereof, however called or noticed, or wherever held, shall be as valid as though had at a meeting
duly held after regular call and notice, if a quorum be present and if, either before or after the meeting, each of the directors not present shall sign a written waiver of notice. All such waivers shall be filed with the corporate records
or made a part of the minutes of the meeting.
(g) Quorum and Manner of Acting. A majority of the total number of directors then in office shall be present in person at any meeting of the Board in order to constitute a quorum for the transaction
of business at such meeting, and the vote of a majority of those directors present at any such meeting at which a quorum is present shall be necessary for the passage of any resolution or act of the Board, except as otherwise expressly
required by law, the Certificate of Incorporation or these Bylaws. In the absence of a quorum for any such meeting, a majority of the directors present thereat may adjourn such meeting from time to time for up to ten (10) days until a quorum
shall be present if the time and place of the adjourned meeting is given at the original meeting.
(h) Organization. At each meeting of the Board, one of the following shall act as chairman of the meeting and preside, in the following order of precedence:
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(i)
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the Chairman;
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(ii)
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the President;
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(iii)
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any director chosen by a majority of the directors present.
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The Secretary or, in the case of his absence, any person (who shall be an Assistant Secretary, if an Assistant Secretary is present) whom the
chairman of the meeting shall appoint shall act as secretary of such meeting and keep the minutes thereof.
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SECTION 3.07. Committees of the Board. The Board may, by resolution passed by a majority of the whole Board, designate one or more committees, each committee to consist of one or more directors. The Board may
designate one or more directors as alternate members of any committee, who may replace any absent or disqualified member at any meeting of such committee. Any such committee, to the extent provided in the resolution of the Board designating
such committee, shall have and may exercise all the powers and authority of the Board in the management of the business and affairs of the Corporation subject to applicable law, and may authorize the seal of the Corporation to be affixed to
all papers which may require it; provided, however, that no such committee shall have such power or authority in reference to making, altering or replacing any bylaw of the corporation, electing or appointing any director or removing any
officer or director, submitting to shareholders any action that requires shareholder approval or amending or repealing any resolutions theretofore adopted by the Board which by its terms is amendable or repealable only by the Board. Each
committee of the Board shall keep regular minutes of its proceedings and report the same to the Board at the next following Board meeting following the committee meeting; provided, however, that when the meeting of the Board is held within
two days after the committee meeting, such report shall, if not made at the first meeting, be made to the Board at its second meeting following such committee meeting.
SECTION 3.08. Directors’ Consent in Lieu of Meeting. Any action required or permitted to be taken at any meeting of the Board or of any committee thereof may be taken without a meeting, without prior notice
and without a vote, if a consent in writing or by electronic transmission, setting forth the action so taken, shall be signed by all the members of the Board or such committee and such consent or electronic transmission or transmissions is
filed with the minutes of the proceedings of the Board or such committee. Such filing shall be in paper form if the minutes are maintained in paper form and shall be in electronic form if the minutes are maintained in electronic form.
SECTION 3.09. Compensation. Unless otherwise restricted by the Certificate of Incorporation, the Board may determine the compensation of directors by an affirmative vote of a majority of directors in office.
In addition, as determined by the Board, directors may be reimbursed by the Corporation for their expenses, if any, in the performance of their duties as directors. No such compensation or reimbursement shall preclude any director from
serving the Corporation in any other capacity and receiving compensation therefor.
SECTION 3.10. Interested Directors; Quorum. No contract or transaction between the Corporation and one or more of its directors or officers, or between the Corporation and any other corporation, partnership,
limited liability company, joint venture, trust, association or other organization or other entity in which one or more of its directors or officers serve as directors, officers, trustees or in a similar capacity or have a financial interest,
shall be void or voidable solely for this reason, or solely because the director or officer is present at or participates in the meeting of the Board of Directors or committee thereof which authorizes the contract or transaction, or solely
because the directors’ or officers’ votes are counted for such purpose, if: (i) the material facts as to the directors’ or officers’ relationship or interest and as to the contract or transaction are disclosed or are known to the Board or
the committee, and the Board or committee in good faith authorizes the contract or transaction by the affirmative votes of a majority of the disinterested directors, even though the disinterested directors be less than a quorum or by
unanimous written consent, provided, in either case, at least one director so consenting is disinterested; or (ii) the material facts as to the directors’ or officers’ relationship or interest and as to the contract or transaction are
disclosed or are known to the stockholders entitled to vote thereon, and the contract or transaction is specifically approved in good faith by a vote of the stockholders; or (iii) the contract or transaction is fair as to the Corporation as
of the time it is authorized, approved or ratified, by the Board, a committee thereof or the stockholders. Common or interested directors may be counted in determining the presence of a quorum at a meeting of the Board of Directors or of a
committee which authorizes the contract or transaction.
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ARTICLE IV
OFFICERS
OFFICERS
SECTION 4.01. Officers. The officers of the Corporation shall be the Chairman, the Chief Executive Officer, the President, the Chief Operating Officer, the Secretary and a Treasurer and may include one or more
Vice Presidents and one or more Assistant Secretaries and one or more Assistant Treasurers. Any two or more offices may be held by the same person.
SECTION 4.02. Authority and Duties. All officers shall have such authority and perform such duties in the management of the Corporation as may be provided in these Bylaws or, to the extent not so provided, by
resolution of the Board.
SECTION 4.03. Term of Office, Resignation and Removal. (a) Each officer shall be appointed by the Board and shall hold office
for such term as may be determined by the Board. Each officer shall hold office until his successor has been appointed and qualified or his earlier death or resignation or removal in the manner hereinafter provided. The Board may require
any officer to give security for the faithful performance of his duties.
(b) Any officer may resign at any time by giving
written notice to the Board, the Chairman, the Chief Executive Officer or the Secretary. Such resignation shall take effect at the time specified in such notice or, if the time be not specified, upon receipt thereof by the Board, the
Chairman, the Chief Executive Officer or the Secretary, as the case may be. Unless otherwise specified therein, acceptance of such resignation shall not be necessary to make it effective.
(c) All officers and agents appointed by the Board
shall be subject to removal, with or without cause, at any time by the Board or, if elected by stockholders, by the action of the recordholders of a majority of the shares entitled to vote thereon.
SECTION 4.04. Vacancies. Any vacancy occurring in any office of the Corporation, for any reason, shall be filled by action of the Board. Unless earlier removed pursuant to Section 4.03 hereof, any officer
appointed by the Board to fill any such vacancy shall serve only until such time as the unexpired term of his predecessor expires unless reappointed by the Board.
SECTION 4.05. The Chairman. The Chairman shall have the power to call special meetings of stockholders, to call special meetings of the Board and, if present, to preside at all meetings of stockholders and all
meetings of the Board. The Chairman shall perform all duties incident to the office of Chairman of the Board and all such other duties as may from time to time be assigned to him by the Board or these Bylaws.
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SECTION 4.06. The Chief Executive Officer. The Chief Executive Officer shall be the chief executive officer of the Corporation and shall have general and active management and control of the business and
affairs of the Corporation, subject to the control of the Board, and shall see that all orders and resolutions of the Board are carried into effect. The Chief Executive Officer shall perform all duties incident to the office of Chief
Executive Officer and all such other duties as may from time to time be assigned to him by the Board or these Bylaws.
SECTION 4.07. The President. The President shall perform such duties as may be prescribed from time to time by the Chairman, the Chief Executive Officer or the Board, and in the absence or disability of the
Chief Executive Officer, shall perform the duties and exercise the powers of the Chief Executive Officer.
SECTION 4.08. The Chief Operating Officer. The Chief Operating Officer shall perform such duties as may be prescribed from time to time by the Chairman, the Chief Executive Officer or the Board.
SECTION 4.09. Vice Presidents. Vice Presidents, if any, in order of their seniority or in any other order determined by the Board, shall generally assist the Chief Executive Officer and perform such other
duties as the Board or the Chief Executive Officer shall prescribe.
SECTION 4.10. The Secretary. The Secretary shall, to the extent practicable, attend all meetings of the Board and all meetings of stockholders and shall record all votes and the minutes of all proceedings in a
book to be kept for that purpose, and shall perform the same duties for any committee of the Board when so requested by such committee. He or she shall give or cause to be given notice of all meetings of stockholders and of the Board, shall
perform such other duties as may be prescribed by the Board, the Chairman or the Chief Executive Officer and shall act under the supervision of the Chairman. He or she shall keep in safe custody the seal of the Corporation and affix the same
to any instrument that requires that the seal be affixed to it and which shall have been duly authorized for signature in the name of the Corporation and, when so affixed, the seal shall be attested by his signature or by the signature of the
Treasurer of the Corporation (the “Treasurer”) or an Assistant Secretary or Assistant Treasurer of the Corporation. He or she shall keep in safe custody the certificate books and stockholder records and such other books and records of the
Corporation as the Board, the Chairman or the Chief Executive Officer may direct and shall perform all other duties incident to the office of Secretary and such other duties as from time to time may be assigned to him by the Board, the
Chairman or the Chief Executive Officer.
SECTION 4.11. Assistant Secretaries. Assistant Secretaries of the Corporation (“Assistant Secretaries”), if any, in order of their seniority or in any other order determined by the Board, shall generally
assist the Secretary and perform such other duties as the Board or the Secretary shall prescribe, and, in the absence or disability of the Secretary, shall perform the duties and exercise the powers of the Secretary.
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SECTION 4.12. The Treasurer. The Treasurer shall have the care and custody of all the funds of the Corporation and shall deposit such funds in such banks or other depositories as the Board, or any officer or
officers, or any officer and agent jointly, duly authorized by the Board, shall, from time to time, direct or approve. He or she shall disburse the funds of the Corporation under the direction of the Board and the Chief Executive Officer.
He or she shall keep a full and accurate account of all moneys received and paid on account of the Corporation and shall render a statement of his accounts whenever the Board, the Chairman or the Chief Executive Officer shall so request. He
or she shall perform all other necessary actions and duties in connection with the administration of the financial affairs of the Corporation and shall generally perform all the duties usually appertaining to the office of treasurer of a
corporation. When required by the Board, he or she shall give bonds for the faithful discharge of his duties in such sums and with such sureties as the Board shall approve.
SECTION 4.13. Assistant Treasurers. Assistant Treasurers of the Corporation (“Assistant Treasurers”), if any, in order of their seniority or in any other order determined by the Board, shall generally assist
the Treasurer and perform such other duties as the Board or the Treasurer shall prescribe, and, in the absence or disability of the Treasurer, shall perform the duties and exercise the powers of the Treasurer.
ARTICLE V
CHECKS, DRAFTS, NOTES, AND PROXIES
CHECKS, DRAFTS, NOTES, AND PROXIES
SECTION 5.01. Checks, Drafts and Notes. All checks, drafts and other orders for the payment of money, notes and other evidences of indebtedness issued in the name of the Corporation shall be signed by such
officer or officers, agent or agents of the Corporation and in such manner as shall be determined, from time to time, by resolution of the Board.
SECTION 5.02. Execution of Proxies. The Chairman or the Chief Executive Officer, or, in the absence or disability of both of them, the President or any Vice President, may authorize, from time to time, the
execution and issuance of proxies to vote shares of stock or other securities of other corporations held of record by the Corporation and the execution of consents to action taken or to be taken by any such corporation. All such proxies and
consents, unless otherwise authorized by the Board, shall be signed in the name of the Corporation by the Chairman, the Chief Executive Officer, the President or any Vice President.
ARTICLE VI
SHARES AND TRANSFERS OF SHARES
SHARES AND TRANSFERS OF SHARES
SECTION 6.01. Certificates Evidencing Shares. Shares shall be evidenced by certificates in such form or forms as shall be approved by the Board; provided that the Board may provide by resolution or resolutions
that some or all of any class or classes or series of stock shall be uncertificated shares; provided further that any such resolution shall not apply to any shares represented by a certificate theretofore issued until such certificate is
surrendered to the Corporation. Notwithstanding the adoption of such a resolution by the Board every holder of uncertificated shares shall be entitled to have a certificate signed by or in the name of the Corporation (as provided below)
representing the number of shares and setting forth the information set forth in NJBCA 14A:7-11(6). Certificates shall be issued in consecutive order and shall be numbered in the order of their issue, and shall be signed by the Chairman, the
Vice Chairman, the Chief Executive Officer, the President or any Vice President and by the Secretary, any Assistant Secretary, the Treasurer or any Assistant Treasurer. Any or all of the signatures on the certificate may be a facsimile. In
the event any officer, transfer agent or registrar who has signed or whose facsimile signature has been placed upon a certificate shall have ceased to hold such office, transfer agent or registrar or to be employed by the Corporation before
such certificate is issued, such certificate may be issued by the Corporation with the same effect as if such officer had held such office on the date of issue. Certificates representing shares of stock of the Corporation may bear such
legends regarding restrictions on transfer or other matters as any officer or officers of the Corporation may determine to be lawful or appropriate. The Corporation shall not have the power to issue a certificate in bearer form.
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SECTION 6.02. Stock Ledger. A stock ledger in one or more counterparts shall be kept by the Secretary, in which shall be recorded the name and address of each person, firm or corporation owning the shares
evidenced by each certificate evidencing shares issued by the Corporation, the number of shares evidenced by each such certificate, the date of issuance thereof and, in the case of cancellation, the date of cancellation. Except as otherwise
expressly required by law, the person in whose name shares stand on the stock ledger of the Corporation shall be deemed the owner and recordholder thereof for all purposes.
SECTION 6.03. Transfers of Shares. Registration of transfers of shares shall be made only in the stock ledger of the Corporation upon request of the registered holder of such shares, or of his attorney
thereunto authorized by power of attorney duly executed and filed with the Secretary, and upon the surrender of the certificate or certificates evidencing such shares properly endorsed or accompanied by a stock power duly executed, together
with such proof of the authenticity of signatures as the Corporation may reasonably require.
SECTION 6.04. Addresses of Stockholders. Each stockholder shall designate to the Secretary an address at which notices of meetings and all other corporate notices may be served or mailed to such stockholder,
and, if any stockholder shall fail to so designate such an address, corporate notices may be served upon such stockholder by mail directed to the mailing address, if any, as the same appears in the stock ledger of the Corporation or at the
last known mailing address of such stockholder.
SECTION 6.05. Lost, Destroyed and Mutilated Certificates. Each recordholder of shares shall promptly notify the Corporation of any loss, destruction or mutilation of any certificate or certificates evidencing
any share or shares of which he or she is the recordholder. The Board may, in its discretion, cause the Corporation to issue a new certificate in place of any certificate theretofore issued by it and alleged to have been mutilated, lost,
stolen or destroyed, upon the surrender of the mutilated certificate or, in the case of loss, theft or destruction of the certificate, upon satisfactory proof of such loss, theft or destruction, and the Board may, in its discretion, require
the recordholder of the shares evidenced by the lost, stolen or destroyed certificate or his legal representative to give the Corporation a bond sufficient to indemnify the Corporation against any claim made against it on account of the
alleged loss, theft or destruction of any such certificate or the issuance of such new certificate.
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SECTION 6.06. Regulations. The Board may make such other rules and regulations as it may deem expedient, not inconsistent with these Bylaws, concerning the issue, transfer and registration of certificates
evidencing shares.
SECTION 6.07. Fixing Date for Determination of Stockholders of Record. In order that the Corporation may determine the stockholders entitled to notice of or to vote at any meeting of stockholders or any
adjournment thereof, or entitled to receive payment of any dividend or other distribution or allotment of any rights, or entitled to exercise any rights in respect of any change, conversion or exchange of stock, or for the purpose of any
other lawful action, the Board may fix, in advance, a record date, which shall not be more than 60 nor less than 10 days before the date of such meeting, nor more than 60 days prior to any other such action. A determination of the
stockholders entitled to notice of or to vote at a meeting of stockholders shall apply to any adjournment of such meeting; provided, however, that the Board may fix a new record date for the adjourned meeting.
ARTICLE VII
SEAL
SEAL
SECTION 7.01. Seal. The Board may approve and adopt a corporate seal, which shall be in the form of a circle and shall bear the full name of the Corporation, the year of its incorporation and the words
“Corporate Seal New Jersey”.
ARTICLE VIII
FISCAL YEAR
FISCAL YEAR
SECTION 8.01. Fiscal Year. The fiscal year of the Corporation shall end on the thirty-first day of December of each year unless changed by resolution of the Board.
ARTICLE IX
INDEMNIFICATION AND INSURANCE
SECTION 9.01. Indemnification. Any former, present or future director, officer or employee of the Corporation or the legal representative of any such director, officer or employee shall be indemnified by the
Corporation:
(a) against reasonable costs, disbursements and counsel fees paid or incurred where such person has been successful in the defense on the merits or otherwise of any pending, threatened or completed civil,
criminal, administrative or arbitrative action, suit or proceeding, and any appeal therein and any inquiry or investigation which could lead to such action, suit or proceeding, or in defense of any claim, issue or matter therein, brought
by reason of such person’s being or having been such director, officer or employee, and
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(b) with respect to the defense of any such action, suit, proceeding, inquiry or investigation for which indemnification is not made under (a) above, against reasonable costs, disbursements (which shall include
amounts paid in satisfaction of settlements, judgments, fines and penalties, exclusive, however, of any amount paid or payable to the Corporation) and counsel fees if such person acted in good faith and in a manner such person reasonably
believed to be in or not opposed to the best interests of the Corporation, and in connection with any criminal proceeding such person also had no reasonable cause to believe the conduct was unlawful, with the determination as to whether
the applicable standard of conduct was met to be made by a majority of the members of the Board (sitting as a committee of the Board) who were not parties to such inquiry, investigation, action, suit or proceeding or by any one or more
disinterested counsel to whom the question may be referred by the Board; provided, however, in connection with any proceeding by or in the right of the Corporation, no indemnification shall be provided as to any person adjudged by any court to be liable to the Corporation except as and to
the extent determined by such court.
The termination of any such inquiry, investigation, action, suit or proceeding by judgment, order, settlement, conviction,
or upon a plea of nolo contendere or its equivalent shall not of itself create a presumption that such person did not meet the standards of conduct set forth in subsection (b) above.
Reasonable costs, disbursements and counsel fees incurred by such person in connection with any inquiry, investigation,
action, suit or proceeding may be paid by the Corporation in advance in the final disposition of such matter if authorized by a majority of the Board (sitting as a committee of the Board) not parties to such matter upon receipt by the
Corporation of an undertaking by or on behalf of such person to repay such amount unless it is ultimately determined that such person is entitled to be indemnified as set forth herein.
SECTION 9.02. Directors, Trustees, Officers and Employees of Other Companies. The Board may, at any regular or special meeting of the Board, by resolution, accord similar indemnification (prospective or
retroactive) to any director, trustee, officer or employee of any other company who is serving as such at the request of the Corporation and any officer, director or employee of any constituent corporation absorbed by the Corporation in a
consolidation or merger, or the legal representative of any such director, trustee, officer or employee.
SECTION 9.03. Indemnification Not Exclusive. The indemnification and advancement of expenses provided for in this Article IX shall not exclude any other rights to which any person contemplated by this
Article IX may be entitled as a matter of law or which may be lawfully granted; provided that no indemnification shall be made to or on behalf of such person if a judgment or other final adjudication adverse to such person establishes that
his or her acts or omissions (a) were in breach of his or her duty of loyalty to the Corporation or its stockholders, (b) were not in good faith or involved a knowing violation of law or (c) resulted in receipt by such person of an improper
personal benefit.
SECTION 9.04. Insurance. The Corporation may purchase and maintain insurance to protect itself and any person contemplated by this Article IX against any expenses incurred in any proceeding and any liabilities
asserted against him or her by reason of his or her being or having been a director, officer or employee, whether or not the Corporation would have the power to indemnify him or her against such expenses and liabilities under the provisions
of this Article IX. The Corporation may purchase such insurance from, or such insurance may be reinsured in whole or in part by, an insurer owned by or otherwise affiliated with the Corporation, whether or not such insurer does business with
other insureds.
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ARTICLE X
AMENDMENTS
AMENDMENTS
SECTION 10.01.General Procedure. The Board of Directors shall have power to make, alter and repeal Bylaws of the Corporation by a vote of a majority of all of the directors at any regular or special meeting of
the Board, provided that, unless every director shall be present at such meeting, the notice or waiver of notice of such meeting shall have specified or summarized the proposed action. The stockholders may make, alter, and repeal Bylaws of
the Corporation by a vote of a majority of the stockholders at any meeting, provided that the notice or waiver of notice of such meeting shall have specified or summarized the proposed action.
ARTICLE XI
FORUM SELECTION
FORUM SELECTION
SECTION 11.01.Forum Selection. Unless the Corporation consents in writing to the selection of an alternative forum, the sole and exclusive forum for (i) any derivative action or proceeding brought on behalf of
the Corporation, (ii) any action by one or more shareholders asserting a claim of a breach of fiduciary duty owed by a director or officer or former director or officer, to the Corporation or the Corporation’s shareholders or a breach of the
certificate of incorporation or bylaws, (iii) any action brought by one or more shareholders asserting a claim against the Corporation or its directors or officers, or former directors or officers, arising under the certificate of
incorporation or these bylaws (as either may be amended from time to time) or under the New Jersey Business Corporation Act, N.J.S. 14A:1-1 et seq.; (iv) any other State law claim, including a class action asserting a breach of a duty to
disclose or a similar claim brought by one or more shareholders against the corporation, its directors or officers, or its former directors or officers; or (vi) any other claim brought by one or more shareholders which is governed by the
internal affairs doctrine or an analogous doctrine, shall be the United States District Court for the District of New Jersey, or in the event that such court lacks jurisdiction to hear such action, a Superior Court of the State of New Jersey.
In the event that any action the subject matter of which is within the scope of the preceding sentence is filed in a court
other than a court located within the State of New Jersey (a “Foreign Action”) in the name of any shareholder or shareholders, such shareholder or shareholders shall be deemed to have consented to (i) the personal jurisdiction of the State
and Federal courts located within the State of New Jersey in connection with any action brought in any such court to enforce the preceding sentence and (ii) having service of process made upon such shareholder or shareholders in any such
action by service upon such shareholder’s or shareholders’ counsel in the Foreign Action as agent for such shareholder.
16
Any shareholder or shareholders who file an action in breach of the requirement contained in this ARTICLE XI shall be
liable for all reasonable costs incurred in enforcing the requirement, including, without limitation, reasonable attorneys’ fees of the defendants.
Bylaws were last revised on March 8, 2019.
17
Exhibit 10.6
FOURTH AMENDMENT TO CREDIT AGREEMENT
THIS FOURTH AMENDMENT TO CREDIT AGREEMENT (this “Amendment”)
is made as of this 6th day of March, 2019 by and between LINCOLN EDUCATIONAL SERVICES CORPORATION, a New Jersey corporation; LINCOLN TECHNICAL INSTITUTE, INC.; a New
Jersey corporation; NASHVILLE ACQUISITION, L.L.C., a Delaware limited liability company; NEW ENGLAND ACQUISITION, LLC, a Delaware limited liability company; EUPHORIA ACQUISITION, LLC, a Delaware limited liability company; NEW ENGLAND INSTITUTE OF
TECHNOLOGY AT PALM BEACH, INC., a Florida corporation; LCT ACQUISITION, LLC, a Delaware limited liability company; NN ACQUISITION, LLC, a Delaware limited liability company and LTI HOLDINGS, LLC, a Colorado limited liability company (individually
and collectively, jointly and severally, the “Borrower”), and STERLING NATIONAL BANK (the “Bank”).
R E C I T A L S:
A. Pursuant to that certain Credit Agreement dated as
of March 31, 2017, as amended by that certain First Amendment to Credit Agreement by and among Borrower and the Bank dated as of November 29, 2017, as further amended by that certain Second Amendment to Credit Agreement by and among Borrower and
the Bank dated as of February 23, 2018, and as further amended by that certain Third Amendment to Credit Agreement by and among Borrower and the Bank dated as of July 11, 2018 (as the same has been and may be further amended from time to time,
the “Credit Agreement”), the Bank agreed to make available to Borrower (i) that certain line of credit facility in the amount of $30,000,000, comprised of a $25,000,000
revolving loan designated as “Tranche A” and a $5,000,000 non-revolving loan designated as “Tranche B” (“Facility 1”), (ii) that certain line of credit facility in the
amount of $25,000,000 (“Facility 2”), which includes a $10,000,000 sublimit for letters of credit, and (iii) that certain line of credit facility in the amount of
$15,000,000 (“Facility 3”) (collectively, as amended, modified, supplemented, extended and restated from time to time, the “Loans”). The $5,000,000 non-revolving loan drawn under Tranche B has been repaid and the maximum principal amount of Facility 1 has been permanently reduced to $25,000,000.00.
B. Borrower has requested that the Bank modify the terms
of the Credit Agreement to, among other things, (i) convert the entire outstanding principal balance of Facility 1 to a term loan, (ii) advance up to $5,000,000 under Facility 2 without the requirement of cash collateral for such revolving loan
and (iii) revise certain financial covenants, and Bank has agreed to such modifications to the Credit Agreement in accordance with and subject to the terms and conditions hereof.
NOW, THEREFORE, in consideration of the
foregoing, the terms and conditions set forth in this Amendment, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Bank and Borrower hereby agree as follows:
1. Recitals. The Recitals are incorporated as if fully set forth herein.
2. Capitalized Terms. Capitalized terms used but not defined in this Amendment shall have the meanings set forth in the Credit Agreement.
1
3. Amendments to the Credit Agreement.
(a) Amended Definitions. The following definitions set forth in Section 1.1 of the Credit Agreement are hereby amended and restated to read as follows:
“Adjusted EBITDA” means, for the period under review, for the Borrower on a consolidated basis, an amount equal to Net Income for such
period plus the following to the extent deducted in calculating such Net Income: costs associated with the closing of the Lincoln College of New England campus in Southington, Connecticut (i) in the amount of (A) $6,000,000 during the Fiscal
Quarter ended December 31, 2018, (B) $5,863,000 during the Fiscal Quarter ending March 31, 2019, (C) $4,964,000 during the Fiscal Quarter ending June 30, 2019 and (D) $3,099,000 during the Fiscal Quarter ending September 30, 2019 only, and (ii)
amounts to be approved by Bank in any fiscal period thereafter; it being understood and agreed that the add backs for the fiscal periods noted in clauses (i)(A)-(D) and (ii) shall be one-time adjustments only and shall not carry forward to any
subsequent fiscal periods) and other one-time charges with Bank’s approval; the amount of depreciation and amortization expense for such period; with the Bank’s consent, impairment of goodwill and long-lived assets for such period; Interest
Expense; the provision for federal, state, local and foreign income taxes payable for such period; and other non-cash expenses related to stock-based compensation and pension expense for such period, in each case as determined in accordance with
GAAP; and severance costs (limited to an aggregate sum of $1,000,000 incurred during any Fiscal Year).
“Facility 1” means, prior to the date of the Fourth
Amendment, that certain revolving line of credit facility described in Recital A of the Fourth Amendment and, from and after the date of the Fourth Amendment, that certain term loan, in the original principal amount of $22,700,649.31 made
pursuant to the Facility 1 Note.
“Facility 1 Note” means that certain Note in the original
principal amount of up to $30,000,000.00 evidencing the Loan made under Facility 1, of which there remains outstanding $22,700,649.31 as of the date of the Fourth Amendment.
“Facility 2” means that certain $25,000,000 revolving
line of credit, which includes a sublimit amount for Letters of Credit of $10,000,000, secured by a cash collateral account funded in an aggregate amount equal to the amount of any Revolving Loans made thereunder and the Stated Amount of issued
Letters of Credit, pursuant to the terms provided for in Section 2.1(c) hereof and in the Pledge Agreement, for the purposes set forth in Section 6.8 of the Credit Agreement.
“Loans” means, collectively, the
Revolving Loans and the Term Loan.
“Note” means, collectively, the
Facility 1 Note and each Revolving Note.
“Revolving Facility Amount” has the
meaning ascribed thereto in Section 2.1(a).
“Revolving Maturity Date” means, (i) as to Facility 2,
April 30, 2020, or such earlier date upon which the Revolving Facility shall terminate or the Revolving Facility shall otherwise equal zero and (ii) as to Facility 3, May 31, 2019.
2
“Revolving Note” means a collective reference to the
promissory note evidencing the Revolving Loans and/or the Letters of Credit issued under Facility 2, as applicable, payable to the order of the Bank in form acceptable to the Bank.
(b) New Definitions. The following definitions are hereby inserted into Section 1.1 of the Credit Agreement:
“Fourth Amendment” means that certain Fourth Amendment to
Credit Agreement dated as of March 6, 2019 by and between the Borrower and the Bank.
“Term Loan” has the meaning ascribed thereto in Section
2.1(e).
“Term Maturity Date” means March 31, 2024.
(c) Deleted Definitions. The following definitions are hereby deleted in their entirety from Section 1.1 of the Credit Agreement, and any references thereto are removed from the Credit Agreement:
“Tranche A”
“Tranche B”
(d) Section 2.1(a) of the Credit Agreement is hereby
deleted in its entirety and the following is inserted in its place:
“(a) Revolving Loans Under Facility 2. Subject to the terms and conditions hereof, the Bank may make revolving credit loans (each a “Revolving Loan”
and, collectively, the “Revolving Loans”) under Facility 2 to the Borrower from time to time during the Availability Period in an aggregate principal amount at any one
time outstanding which does not exceed $25,000,000 (inclusive of the sublimit available for the issuance of Letters of Credit of up to $10,000,000). During the Availability Period, within the foregoing limits and subject to the terms and
conditions set forth herein, the Borrower may borrow, repay pursuant to Section 2.6 and reborrow under this Section 2.1 with respect to Facility 2. Subject to the provisions of Section 4 of the Fourth Amendment, all Revolving Loans under
Facility 2, other than those Revolving Loans to be advanced pursuant to Section 4 of the Fourth Amendment, shall be fully cash collateralized.”
The following is hereby inserted after the last sentence of Section 2.1(b) in connection with Letters of Credit issued under Facility
2:
“All requirements, covenants, and obligations of the Borrower pursuant to this Credit Agreement shall survive the Revolving Maturity
Date and/or the termination of Facility 2 for so long as any Letter of Credit remains outstanding.”
(e) Section 2.1 of the Credit Agreement is hereby
amended to include the following as Section 2.1(e):
3
“(e) Subject to the terms and conditions hereof, all
revolving loans and interest outstanding under Facility 1 as of the date of the Fourth Amendment shall be automatically converted into a term loan (the “Term Loan”) and
the Borrower shall repay the Term Loan pursuant to Section 2.5 of the Credit Agreement. Amounts repaid under the Term Loan may not be reborrowed.”
(f) Section 2.5 of the Credit Agreement is hereby
deleted in its entirety and the following is inserted in its place:
“Section 2.5 Repayment of the Loans.
(a) Repayment of the Revolving Loans. The Borrower hereby unconditionally promises to pay to the order of the Bank the then unpaid principal amount of each Revolving Loan on the Revolving Maturity
Date.
(b) Repayment of the Term Loan.
(i) Commencing on April 1, 2019, and continuing
on the same day of each month thereafter through and including June 30, 2019, the Term Loan shall be payable in consecutive monthly installments of accrued interest only.
(ii) Commencing on July 1, 2019, and continuing on the same day of each month thereafter through and including
December 31, 2019, the outstanding principal amount of the Term Loan shall be payable in consecutive monthly installments of $189,172.08 plus accrued interest.
(iii) Commencing on January 1, 2020, and continuing on the same day of each month thereafter through and including
June 30, 2020, the Term Loan shall be payable in consecutive monthly installments of accrued interest only.
(iv) Commencing on July 1, 2020, and continuing on the same day of each month thereafter through and including
December 31, 2020, the outstanding principal amount of the Term Loan shall be payable in consecutive monthly installments of $567,516.24, plus accrued interest.
(v) Commencing on January 1, 2021, and continuing on the same day of each month thereafter through and including
June 30, 2021, the Term Loan shall be payable in consecutive monthly installments of accrued interest only.
(vi) Commencing on July 1, 2021, and continuing on the same day of each month thereafter through and including
December 31, 2021, the outstanding principal amount of the Term Loan shall be payable in consecutive monthly installments of $378,344.16 plus accrued interest.
(vii) Commencing on January 1, 2022, and continuing on the same day of each month thereafter through and including
June 30, 2022, the Term Loan shall be payable in consecutive monthly installments of accrued interest only.
4
(viii) Commencing on July 1, 2022, and continuing on the same day of each month thereafter through and including
December 31, 2022, the outstanding principal amount of the Term Loan shall be payable in consecutive monthly installments of $378,344.16 plus accrued interest.
(ix) Commencing on January 1, 2023, and continuing on the same day of each month thereafter through and including
June 30, 2023, the Term Loan shall be payable in consecutive monthly installments of accrued interest only.
(x) Commencing on July 1, 2023, and continuing on the same day of each month thereafter through and including
December 31, 2023, the outstanding principal amount of the Term Loan shall be payable in consecutive monthly installments of $378,344.16 plus accrued interest.
(xi) Commencing on January 1, 2024, and continuing on the same day of each month thereafter through and including
the Term Maturity Date, the Term Loan shall be payable in consecutive monthly installments of accrued interest only.
(xii) On the Term Maturity Date, the remaining outstanding principal amount of the Term Loan, together with accrued
interest, shall be immediately due and payable.
(g) Section 2 of the Credit Agreement is hereby amended
to include the following as Section 2.8:
“Section 2.8 Mandatory Prepayments of the Term Loan.
In the event of a sale of any campus, school, or business, Borrower shall pay to the Bank, at the closing thereof, an amount equal to twenty-five percent (25%) of the net proceeds (i.e., the gross purchase price less customary and reasonable
closing costs and expenses) of any such sale, which amount shall be applied to the outstanding principal amount of the Term Loan in inverse order of maturity. For the avoidance of doubt, such mandatory prepayment shall not excuse Borrower from
making regular monthly payments of principal, but shall reduce the balloon payment to be made upon the Term Loan Maturity.”
(h) Section 3.1(A)(a)(i) of the Credit Agreement is
hereby deleted in its entirety and the following is inserted in its place:
“A. Term Loan under Facility 1 and Revolving Loans under Facility 2
(a) (i) Facility 1: The Borrower
shall pay to the Bank interest on the Term Loan for the period commencing on the date of the Fourth Amendment until the Term Loan shall be paid in full, at a rate per annum equal to the greater of (x) the Prime Rate plus 2.85%, and (y) 6.00%. Any change in the interest rate resulting from a change in the Prime Rate shall be effective as of the opening of business on the day on which such change in the Prime
Rate becomes effective.”
5
(i) Subsection (a)(ii) of Section 3.1(A) of the Credit
Agreement is hereby deleted in its entirety and the following is inserted in its place:
“(ii) Facility 2: The Borrower shall
pay to the Bank interest on the unpaid principal amount of each Revolving Loan made by the Bank to the Borrower under Facility 2 for the period commencing on the date of such Revolving Loan until such Revolving Loan shall be paid in full, at a
rate per annum equal to the greater of (x) the Prime Rate plus 0.00%, and (y) 3.50%. Notwithstanding the foregoing, with regard to any advances made pursuant to
Facility 2 which are not secured by cash collateral, Borrower shall pay to the Bank interest on the unpaid principal amount of each such Revolving Loan for the period commencing on the date of such Revolving Loan until such Revolving Loan shall
be paid in full, at a rate per annum equal to the greater of (x) the Prime Rate plus 2.85%, and (y) 6.00%.”
(j) Section 3.3 of the Credit Agreement is hereby
deleted in its entirety and the following is inserted in its place:
“Section 3.3 Unused Facility Fee. The Borrowers agree
to pay to the Bank an unused facility fee (“Unused Facility Fee”) on the average daily unused balance of Facility 2 from and including the Effective Date to but
excluding the Revolving Maturity Date at a rate per annum equal to one-half of one percent (0.50%). The Unused Facility Fee is calculated based on a year of 360 days for the actual number of days elapsed. The accrued Unused Facility Fee shall be
paid on the first day of each Fiscal Quarter, in arrears. For the avoidance of doubt, there is no Unused Facility Fee due upon the average daily unused balance of Facility 3 at any time.”
(k) Section 6.18 of the Credit Agreement is hereby
deleted in its entirety and the following inserted in its place:
“Borrower agrees to permit the Bank and its appraisers to have access to the Mortgaged Property, in order to obtain a current
appraisal of the Mortgaged Property, at the sole cost and expense of Borrower, once every two (2) years, and at any time upon the occurrence of an Event of Default.”
(l) Section 7.6(i) of the Credit Agreement is hereby
deleted in its entirety. For the avoidance of doubt, no sale of any school, business or campus by the Borrower shall occur without the Bank’s prior written consent, to be granted in the Bank’s sole and absolute discretion.
(m) Section 7.18(a) of the Credit Agreement is hereby
deleted in its entirety and the following inserted in its place:
“(a) Capital Expenditures. The Borrower will not make
unfunded Capital Expenditures during any Fiscal Year, tested annually at each Fiscal Year end, in excess of $6,000,000, without the prior written approval of the Bank.”
(n) Section 7.18(b) of the Credit Agreement is hereby
deleted in its entirety and the following inserted in its place:
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“(b) Minimum Adjusted EBITDA. The Borrower shall
maintain a minimum Adjusted EBITDA, tested quarterly on a rolling twelve month basis, as follows:
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1Q19
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$7,000,000
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2Q19
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$7,250,000
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3Q19
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$9,000,000
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4Q19
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$11,000,000
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Commencing with the Fiscal Year 2020, the Borrower shall deliver to the Bank detailed financial projections for the upcoming Fiscal
Year by January 31 of each such Fiscal Year and, thereafter, the Bank shall determine, in its reasonable discretion, the acceptable minimum Adjusted EBITDA levels that the Borrower must maintain for such Fiscal Year. The Bank shall notify
Borrower of such determination in writing no later than 30 days after delivery of the financial projections.”
(o) Section 7.18(e) of the Credit Agreement is hereby
deleted in its entirety and the following inserted in its place:
“(e) Maximum Funded Debt to Adjusted EBITDA Ratio. The
Borrower shall maintain a maximum Funded Debt to Adjusted EBITDA Ratio, tested on a rolling twelve month basis, in the corresponding quarter of each year as follows:
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1Q
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3.00 to 1.00
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2Q
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3.00 to 1.00
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3Q
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2.50 to 1.00
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4Q
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2.00 to 1.00
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Compliance with this covenant shall be determined on a rolling twelve month basis and shall be measured commencing as of the Fiscal
Quarter ended March 31, 2019. For the avoidance of doubt, nothing herein shall relieve the Borrower from compliance with all existing covenants for the Fiscal Quarter ending December 31, 2018.”
4. Additional Advance. (a) On the date hereof, the Bank shall make a Revolving Loan in the principal amount of Two Million Five Hundred Thousand Dollars ($2,500,000.00) under Facility 2 to the Borrower.
(b) The Bank may, in its sole and absolute discretion, make
additional Revolving Loans under Facility 2 to the Borrower as follows: (a) a Revolving Loan in the principal amount of One Million Two Hundred Fifty Thousand Dollars ($1,250,000.00) after receipt of the financial statements required by Section
6.1(a) for the Fiscal Quarter ending March 31, 2019 and (b) a Revolving Loan in the principal amount of One Million Two Hundred Fifty Thousand Dollars ($1,250,000.00) after receipt of the financial statements required by Section 6.1(a) for the
Fiscal Quarter ending June 30, 2019. The Bank shall make each such additional Revolving Loan to the Borrower or notify the Borrower of its decision not to make such additional Revolving Loan within 15 days after the Bank’s receipt of the
financial statements for such Fiscal Quarters. Notwithstanding Section 2.1(c), there shall be no cash collateral requirement for any Revolving Loans made pursuant to this Section 4. All principal amounts advanced by the Bank pursuant to this
Section 4, together with accrued interest, shall be due and payable on November 1, 2019. Prior to November 1, 2019, the Borrower shall be obligated to make monthly payments of accrued interest only on Revolving Loans made under Facility 2
pursuant to this paragraph.
7
5. Reappraisal. Notwithstanding anything in Section 6.18 to the contrary, is expressly acknowledged and agreed by the Borrower that the Bank will reappraise the Mortgaged Property within thirty (30) days of the date
hereof, and that such cost shall be borne by the Borrower.
6. Banking Services; First Opportunity Right. (a) Throughout the term of the Loans, the Borrower shall give the Bank the first opportunity to provide any and all traditional banking services required by the Borrower,
including but not limited to treasury management, loans and other financing services (each a “Financial Service”), on such terms and conditions as may be mutually acceptable to the Borrower and the Bank, all in accordance with the provisions set
forth below.
(b) Prior to seeking any Financial Service from a third
party, Borrower shall provide to the Bank written notice (the “Right of First Offer Notice”) of its intention to obtain a Financial Service, which notice shall (i) set forth in reasonable detail the terms of the Financial Service sought and (ii)
offer to the Bank, for a period of three (3) Business Days from the date of delivery of the Right of First Offer Notice, the opportunity to provide the Financial Service sought. The Bank shall within such three (3) Business Day period, either
advise the Borrower, in writing, that (i) the Bank is not interested in offering the Financial Service to the Borrower or (ii) the Bank is interested in offering the Financial Service to the Borrower and requests information and materials
relating to the Financial Service sought by the Borrower (the “Financial Service Information/Materials”), only to the extent, however, that the Financial Service Information/Materials are reasonably necessary in order for the Bank to sufficiently
evaluate the Financial Service for purposes of potentially issuing an “Indicative Term Sheet”, as referenced below.
(c) On or prior to the date which is twelve (12) Business
Days after receipt of all or substantially all of the Financial Service Information/Materials, the Bank shall either (i) notify the Borrower that the Bank is not interested in pursuing the Financial Service or (ii) deliver to the Borrower the
Indicative Term Sheet. An “Indicative Term Sheet” shall mean a document describing the proposed basic business terms and conditions upon which the Bank proposes to provide the Financial Service sought by the Borrower, it being understood that
the Indicative Term Sheet shall not be binding upon the Bank and shall in no event be deemed a commitment by the Bank to provide the Financial Service and shall not impose any obligation on Bank whatsoever.
7. Exit Fee. In consideration of the terms and conditions set forth in this Fourth Amendment, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged by the Borrower, upon
the repayment of any of the Loans or other credit facilities, if any, through replacement financing, the Borrower shall pay to the Bank, in addition to the payoff amount, in good and available funds, an amount equal to one and one-quarter
percent (1.25%) (the "Exit Fee") of the total payoff amount as well as the face amount of all letters of credit replaced in connection with said replacement financing. Notwithstanding the foregoing, the Exit Fee shall not be due and payable in
the event (i) the Bank or an affiliate or subsidiary of the Bank arranges or provides replacement financing for the Loans or (ii) the payoff of the applicable Loan(s) occurs after March 5, 2021 (the Borrower covenants, however, that in good faith
it will not extend the closing date of said replacement financing for purposes of avoiding the Exit Fee).
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8. Hedging Contract Required. In the event that the Prime Rate is greater than or equal to 6.50% while any Loans are outstanding, Borrower may be required to enter into a Hedging Contract in form and content
satisfactory to the Bank for the remaining duration of the Loans and in a notional amount up to the outstanding principal balance of the Loans in the Bank’s sole discretion. A
Hedging Contract may be available through the Bank or an affiliate provider, but Borrower shall not be obligated to obtain the Hedging Contract from the Bank or any affiliate provider of the Bank. In the event that the Borrower shall obtain the
Hedging Contract from the Bank or an affiliate provider of the Bank, the Collateral for the Loans set forth herein and in the other Loan Documents shall secure such Hedging Contract. In the event a Hedging Contract shall be provided by a
service provider other than the Bank or its affiliate provider, the Collateral for the Loans set forth herein and in the other Loan Documents shall not secure such Hedging Contract. Early termination of the Hedging Contract will be settled at the
market value of any such Hedging Contract, and may result in a payment from or a payment to the Borrower to be determined at the time of termination.
9. Expiration of Facility 3. It is expressly understood and agreed that Facility 3 shall expire on May 31, 2019, and shall not be renewed.
10. Reaffirmation of Credit Agreement. Borrower acknowledges and reaffirms its obligations under the Credit Agreement, and Borrower acknowledges and agrees that it has no claims against the Bank, or any offsets or
defenses with respect to the payment of any sums due under the Facilities or any Loan Document, or with respect to the enforcement of the Loan Documents.
11. Confirmation of Representations and Warranties. Borrower hereby (a) confirms that all of the representations and warranties set forth in the Credit Agreement are true and correct in all material respects (provided
that if any representation or warranty is by its terms qualified by concepts of materiality, such representation or warranty is true and correct in all respects), except to the extent any representation or warranty relates to a specific date in
which case such representation or warranty shall be true and correct as of such earlier date, and (b) covenants to perform its obligations under the Credit Agreement and all other Loan Documents.
12. Conditions to Effectiveness. This Amendment shall become effective as of the date on which each of the following conditions has been satisfied (the “Effective
Date”):
(a) Each Borrower shall have delivered to the Bank this
Amendment duly executed by an authorized officer of each Borrower;
(b) Each Borrower shall have delivered to the Bank
resolutions of its board of directors or other governing body authorizing the execution and delivery to the Bank of this Amendment; and
(c) all representations and warranties of Borrower
contained herein shall be true and correct as of the Effective Date, except to the extent that such representation or warranty relates to a specific date, in which case such representation and warranty was true as of such earlier date, and such
parties delivery of their respective signatures hereto shall be deemed to be its certification thereof.
9
13. Fees and Expenses. In consideration of the Bank entering into this Amendment, Borrower shall be responsible for the payment of a one-time modification fee in the amount of Fifty Thousand Dollars ($50,000.00), as well
as the Bank’s counsel’s fees incurred in connection herewith, including the preparation of this Amendment, and certain other loan administrative matters related to the Loan Documents.
14. Reference to the Effect on the Credit Agreement. Upon the effectiveness of this Amendment, each reference in the Credit Agreement to “this Agreement,” “hereunder,” “hereof,” “herein” or words of similar import shall
mean and be a reference to the Credit Agreement as modified by this Amendment.
15. Affirmation. Except as specifically modified pursuant to the terms hereof, the Credit Agreement, and all other Loan Documents (and all covenants, terms, conditions and agreements therein), shall remain in full force
and effect, and are hereby ratified and confirmed in all respects by Borrower. Borrower covenants and agrees to comply with all of the terms, covenants and conditions of the Loan Documents, as modified hereby, notwithstanding any prior course of
conduct, waivers, releases or other actions or inactions on the Bank’s part which might otherwise constitute or be construed as a waiver of or amendment to such terms, covenants and conditions.
16. Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW
JERSEY, WITHOUT REFERENCE TO THE CONFLICTS OR CHOICE OF LAW PRINCIPLES THEREOF.
17. Headings. Section headings in this Amendment are included for convenience of reference only and shall not constitute a part of this Amendment for any other purpose.
18. Counterparts. This Amendment may be executed in counterparts, and all counterparts taken together shall be deemed to constitute one and the same instrument.
[signatures appear on successive pages]
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IN WITNESS WHEREOF, the undersigned have
executed this Amendment as of the year and date first set forth above.
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BORROWER:
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||
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LINCOLN EDUCATIONAL SERVICES
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||
|
CORPORATION
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||
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By:
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/s/Brian K. Meyers
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|
|
Brian K. Meyers
|
||
|
Chief Financial Officer
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||
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LINCOLN TECHNICAL INSTITUTE, INC.
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||
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By:
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/s/Brian K. Meyers
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|
|
Brian K. Meyers
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||
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Treasurer
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||
|
NASHVILLE ACQUISITION, L.L.C.
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||
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By:
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/s/Brian K. Meyers
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|
|
Brian K. Meyers
|
||
|
Treasurer
|
||
|
NEW ENGLAND ACQUISITION, LLC
|
||
|
By:
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/s/Brian K. Meyers
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|
|
Brian K. Meyers
|
||
|
Treasurer
|
||
11
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EUPHORIA ACQUISITION, LLC
|
||
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By:
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/s/Brian K. Meyers
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|
|
Brian K. Meyers
|
||
|
Treasurer
|
||
|
NEW ENGLAND INSTITUTE OF
TECHNOLOGY AT PALM BEACH,
INC.
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||
|
By:
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/s/Brian K. Meyers
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|
|
Brian K. Meyers
|
||
|
Treasurer
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||
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LCT ACQUISITION, LLC
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||
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By:
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/s/Brian K. Meyers
|
|
|
Brian K. Meyers
|
||
|
Treasurer
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||
|
NN ACQUISITION, LLC
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||
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By:
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/s/Brian K. Meyers
|
|
|
Brian K. Meyers
|
||
|
Treasurer
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||
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LTI HOLDINGS, LLC
|
||
|
By:
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/s/Brian K. Meyers
|
|
|
Brian K. Meyers
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Treasurer
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12
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BANK:
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STERLING NATIONAL BANK
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By:
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/s/ Mark Smith
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Mark Smith
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Managing Director
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13
Exhibit 21.1
Subsidiaries of the Company
The following is a list of Lincoln Educational Services Corporation’s subsidiaries as of December 31, 2018:
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Name
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Jurisdiction
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Lincoln Technical Institute, Inc. (wholly owned)
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New Jersey
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New England Acquisition LLC (wholly owned through Lincoln Technical Institute, Inc.)
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Delaware
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Nashville Acquisition, LLC (wholly owned through Lincoln Technical Institute, Inc.)
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Delaware
|
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Euphoria Acquisition, LLC (wholly owned through Lincoln Technical Institute, Inc.)
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Delaware
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New England Institute of Technology at Palm Beach, Inc. (wholly owned through Lincoln Technical Institute, Inc.)
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Florida
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LTI Holdings, LLC (wholly owned through Lincoln Technical Institute, Inc.)
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Colorado
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LCT Acquisition, LLC (wholly owned through Lincoln Technical Institute, Inc.)
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Delaware
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NN Acquisition, LLC (wholly owned through Lincoln Technical Institute, Inc.)
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Delaware
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Exhibit 23
CONSENT OF INDEPENDENT REGISTERED PUBLIC
ACCOUNTING FIRM
We consent to the incorporation by reference in Registration
Statement Nos. 333-148406 and 333-152854 on Form S-3 and 333-126066, 333-132749, 333-138715, 333-158923, 333-173880, 333-188240, 333-138715 “POS,” 333-203806 and 333-211213 on Form S-8 of our reports dated March 12, 2019, relating to the
consolidated financial statements and financial statement schedule of Lincoln Educational Services Corporation and subsidiaries’ and the effectiveness of Lincoln Educational Services Corporation and subsidiaries’ internal control over financial
reporting, appearing in this Annual Report on Form 10-K of Lincoln Educational Services Corporation, for the year ended December 31, 2018.
/s/ Deloitte & Touche LLP
Parsippany, New Jersey
March 12, 2019
EXHIBIT 31.1
CERTIFICATION
I, Scott Shaw, certify that:
| 1. |
I have reviewed this Annual Report on Form 10-K/A of Lincoln Educational Services Corporation;
|
| 2. |
Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in
light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;
|
| 3. |
Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition,
results of operations and cash flows of the registrant as of, and for, the periods presented in this report;
|
| 4. |
The registrant’s other certifying officer and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules
13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and have:
|
(a) Designed such disclosure controls and procedures, or
caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities,
particularly during the period in which this report is being prepared;
(b) Designed such internal control over financial
reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external
purposes in accordance with generally accepted accounting principles;
(c) Evaluated the effectiveness of the registrant’s
disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and
(d) Disclosed in this report any change in the
registrant’s internal control over financial reporting that occurred during the registrant’s most recent fiscal quarter (the registrant’s fourth fiscal quarter in the case of an Annual Report) that has materially affected, or is reasonably likely
to materially affect, the registrant’s internal control over financial reporting; and
| 5. |
The registrant’s other certifying officer and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant’s
auditors and the audit committee of the registrant’s board of directors (or persons performing the equivalent functions):
|
(a) All significant deficiencies and material
weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant’s ability to record, process, summarize and report financial information; and
(b) Any fraud, whether or not material, that involves
management or other employees who have a significant role in the registrant’s internal control over financial reporting.
|
Date: April 24, 2019
|
|
|
/s/ Scott Shaw
|
|
|
Scott Shaw
|
|
|
Chief Executive Officer
|
EXHIBIT 31.2
CERTIFICATION
I, Brian Meyers, certify that:
| 1. |
I have reviewed this Annual Report on Form 10-K/A of Lincoln Educational Services Corporation;
|
| 2. |
Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in
light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;
|
| 3. |
Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition,
results of operations and cash flows of the registrant as of, and for, the periods presented in this report;
|
| 4. |
The registrant’s other certifying officer and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules
13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and have:
|
| (a) |
Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material
information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared;
|
| (b) |
Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide
reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles;
|
| (c) |
Evaluated the effectiveness of the registrant’s disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure
controls and procedures, as of the end of the period covered by this report based on such evaluation; and
|
| (d) |
Disclosed in this report any change in the registrant’s internal control over financial reporting that occurred during the registrant’s most recent fiscal quarter (the
registrant’s fourth fiscal quarter in the case of an Annual Report) that has materially affected, or is reasonably likely to materially affect, the registrant’s internal control over financial reporting; and
|
| 5. |
The registrant’s other certifying officer and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant’s
auditors and the audit committee of the registrant’s board of directors (or persons performing the equivalent functions):
|
| (a) |
All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely
affect the registrant’s ability to record, process, summarize and report financial information; and
|
| (b) |
Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant’s internal control over financial reporting.
|
|
Date: April 24, 2019
|
|
|
/s/ Brian Meyers
|
|
|
Brian Meyers
|
|
|
Chief Financial Officer
|
EXHIBIT 32
CERTIFICATION
Pursuant to 18 U.S.C. 1350 as adopted by
Section 906 of the Sarbanes-Oxley Act of 2002
Each of the undersigned, Scott Shaw, Chief Executive Officer of Lincoln Educational Services Corporation (the “Company”), and Brian
Meyers, Chief Financial Officer of the Company, has executed this certification in connection with the filing with the Securities and Exchange Commission of the Company’s Annual Report on Form 10-K/A for the fiscal year ended December 31, 2018
(the “Report”).
Each of the undersigned hereby certifies that, to his respective knowledge:
1. The Report fully complies with the requirements of
Section 13(a) or 15(d) of the Securities Exchange Act of 1934; and
2. The information contained in the Report fairly
presents, in all material respects, the financial condition and results of operations of the Company.
|
Date: April 24, 2019
|
|
|
/s/ Scott Shaw
|
|
|
Scott Shaw
|
|
|
Chief Executive Officer
|
|
/s/ Brian Meyers
|
|
|
Brian Meyers
|
|
|
Chief Financial Officer
|