UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-Q
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þ
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QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934
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For the quarterly period ended March 31, 2011
OR
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o
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TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934
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For the transition period from
to
Commission file number: 333-129179
NATIONAL MENTOR HOLDINGS, INC.
(Exact name of registrant as specified in its charter)
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Delaware
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31-1757086
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(State or other jurisdiction of
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(I.R.S. Employer Identification No.)
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incorporation or organization)
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313 Congress Street, 6th Floor
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Boston, Massachusetts 02210
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(617) 790-4800
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(Address of principal executive offices,
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(Registrants telephone number,
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including zip code)
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including area code)
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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
o
No
þ
The Company is a voluntary filer of reports required of companies with public securities under
Sections 13 or 15(d) of the Securities Exchange Act of 1934 and has filed all reports which would
have been required of the Company during the past 12 months had it been subject to such provisions.
Indicate by check mark whether the registrant has submitted electronically and posted on its
corporate Web site, if any, every Interactive Data File required to be submitted and posted
pursuant to Rule 405 of Regulation S-T during the preceding 12 months (or for such shorter period
that the registrant was required to submit and post such files). Yes
o
No
o
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated
filer, a non-accelerated filer, or a smaller reporting company. See the definitions of large
accelerated filer, accelerated filer and smaller reporting company in Rule 12b-2 of the
Exchange Act.
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Large accelerated filer
o
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Accelerated filer
o
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Non-accelerated filer
þ
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Smaller reporting company
o
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(Do not check if smaller reporting company)
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Indicate by check mark whether the registrant is a shell company (as defined in Rule 12b-2 of
the Exchange Act). Yes
o
No
þ
As of May 16, 2011, there were 100 shares outstanding of the registrants common stock, $.01
par value.
Index
National Mentor Holdings, Inc.
2
PART I. FINANCIAL INFORMATION
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Item 1.
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Financial Statements.
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National Mentor Holdings, Inc.
Condensed Consolidated Balance Sheets
(In thousands)
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(Unaudited)
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March 31,
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September 30,
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2011
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2010
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Assets
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Current assets
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Cash and cash equivalents
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$
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12,544
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$
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26,448
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Restricted cash
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821
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1,046
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Accounts receivable, net
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125,130
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125,979
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Deferred tax assets, net
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13,961
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13,571
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Prepaid expenses and other current assets
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9,398
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14,701
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Total current assets
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161,854
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181,745
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Property and equipment, net
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144,804
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142,112
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Intangible assets, net
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421,222
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437,757
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Goodwill
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230,818
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229,757
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Restricted cash
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50,000
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Other assets
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20,981
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13,915
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Investment in related party debt securities
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10,599
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Total assets
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$
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1,029,679
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$
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1,015,885
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Liabilities and shareholders equity
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Current liabilities
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Accounts payable
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$
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19,781
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$
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26,503
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Accrued payroll and related costs
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72,760
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68,272
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Other accrued liabilities
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39,744
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48,307
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Obligations under capital lease, current
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305
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92
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Current portion of long-term debt
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5,300
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3,667
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Total current liabilities
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137,890
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146,841
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Other long-term liabilities
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16,108
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15,166
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Deferred tax liabilities, net
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120,038
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126,322
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Obligations under capital lease, less current portion
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6,621
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1,624
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Long-term debt, less current portion
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755,910
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500,799
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Total liabilities
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1,036,567
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790,752
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Shareholders equity
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Common stock
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Additional paid-in-capital
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30,466
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250,620
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Accumulated other comprehensive income
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575
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Accumulated deficit
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(37,354
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)
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(26,062
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)
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Total shareholders equity
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(6,888
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)
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225,133
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Total liabilities and shareholders equity
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$
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1,029,679
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$
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1,015,885
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See accompanying notes.
3
National Mentor Holdings, Inc.
Condensed Consolidated Statements of Operations
(In thousands)
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(Unaudited)
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Three Months Ended
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Six Months Ended
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March 31,
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March 31,
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2011
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2010
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2011
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2010
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Net revenue
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$
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266,946
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$
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251,002
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$
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533,473
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$
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501,008
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Cost of revenue (exclusive of depreciation expense shown below)
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206,650
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193,055
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412,712
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384,389
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Operating expenses:
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General and administrative
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34,940
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32,966
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69,526
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66,224
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Depreciation and amortization
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15,013
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14,231
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30,020
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28,398
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Total operating expenses
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49,953
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47,197
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99,546
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94,622
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Income from operations
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10,343
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10,750
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21,215
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21,997
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Other income (expense):
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Management fee of related party
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(310
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)
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(287
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(655
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)
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(563
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Other income (expense), net
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248
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(185
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)
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477
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(129
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Extinguishment of debt
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(19,278
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(19,278
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Gain from available for sale investment security
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3,018
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3,018
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Interest income
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6
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18
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11
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31
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Interest income from related party
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190
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469
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684
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945
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Interest expense
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(14,145
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)
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(11,520
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)
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(22,290
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)
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(23,401
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)
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Loss from continuing operations before income taxes
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(19,928
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)
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(755
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(16,818
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)
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(1,120
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)
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Benefit for income taxes
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(6,921
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)
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(465
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(5,576
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(967
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)
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Loss from continuing operations
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(13,007
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)
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(290
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)
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(11,242
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)
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(153
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Loss from discontinued operations, net of tax
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(51
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)
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(4,366
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(50
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(4,545
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)
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Net loss
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$
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(13,058
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$
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(4,656
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)
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$
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(11,292
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)
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$
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(4,698
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)
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See accompanying notes.
4
National Mentor Holdings, Inc.
Condensed Consolidated Statements of Cash Flows
(In thousands)
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(Unaudited)
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Six Months Ended
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March 31,
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2011
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2010
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Operating activities
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Net loss
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$
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(11,292
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)
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$
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(4,698
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)
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Adjustments to reconcile net loss to cash provided by operating activities:
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Accounts receivable allowances
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5,577
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5,537
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Depreciation and amortization of property and equipment
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11,656
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11,651
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Amortization of other intangible assets
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18,370
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17,214
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Amortization
of original issue discount and initial purchasers discount
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442
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Amortization
and write-off of deferred financing costs
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9,899
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1,598
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Accretion of investment in related party debt securities
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(325
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)
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(481
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)
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Stock-based compensation
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174
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248
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Deferred income taxes
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(6,674
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)
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(6,560
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)
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Gain from available for sale investment security
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(3,018
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)
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(Gain) loss on disposal of assets
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(96
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)
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346
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Change in fair value of contingent consideration
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321
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Non-cash impairment charge
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6,604
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Non-cash interest income from related party
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(359
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)
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(464
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)
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Changes in operating assets and liabilities:
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Accounts receivable
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(4,303
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)
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(5,314
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)
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Other assets
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4,485
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1,244
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Accounts payable
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(7,095
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)
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761
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Accrued payroll and related costs
|
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4,372
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411
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Other accrued liabilities
|
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(5,341
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)
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2,912
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Other long-term liabilities
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|
942
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768
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Net cash provided by operating activities
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17,735
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31,777
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Investing activities
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Cash paid for acquisitions, net of cash received
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(3,353
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)
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(29,199
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)
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Purchases of property and equipment
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(9,194
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)
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(9,061
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)
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Changes in restricted cash
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(49,775
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)
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(1,800
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)
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Proceeds from sale of assets
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|
296
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|
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|
289
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|
|
|
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|
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Net cash used in investing activities
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(62,026
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)
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(39,771
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)
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Financing activities
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|
|
|
|
|
|
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Repayments of long-term debt
|
|
|
(505,364
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)
|
|
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(1,867
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)
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Issuance of long term debt, net of original issue discount
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|
761,667
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|
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Repayments of capital lease obligations
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(92
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)
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|
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(67
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)
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Cash paid for earn-out obligations
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|
|
(3,313
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)
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|
|
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Dividend to Parent
|
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(206,987
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)
|
|
|
|
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Payments of deferred financing costs
|
|
|
(15,524
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)
|
|
|
|
|
|
|
|
|
|
|
|
Net cash provided by (used in) financing activities
|
|
|
30,387
|
|
|
|
(1,934
|
)
|
Net decrease in cash and cash equivalents
|
|
|
(13,904
|
)
|
|
|
(9,928
|
)
|
Cash and cash equivalents at beginning of period
|
|
|
26,448
|
|
|
|
23,650
|
|
|
|
|
|
|
|
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Cash and cash equivalents at end of period
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$
|
12,544
|
|
|
$
|
13,722
|
|
|
|
|
|
|
|
|
See accompanying notes.
5
National Mentor Holdings, Inc.
Notes to Condensed Consolidated Financial Statements
March 31, 2011
(Unaudited)
1. Basis of Presentation
National Mentor Holdings, Inc., through its wholly owned subsidiaries (collectively, the
Company), is a leading provider of home and community-based health and human services to adults
and children with intellectual and/or developmental disabilities, acquired brain injury and other
catastrophic injuries and illnesses; and to youth with emotional, behavioral and/or medically
complex challenges. Since the Companys founding in 1980, the Company has grown to provide services
to approximately 23,500 clients in 36 states.
The Company designs customized service plans to meet the unique needs of its clients, which it
delivers in home- and community-based settings. Most of the Companys service plans involve
residential support, typically in small group homes, host home settings, or specialized community
facilities, designed to improve the clients quality of life and to promote their independence and
participation in community life. Other services offered include supported living, day and
transitional programs, vocational services, case management, family-based services, post-acute
treatment and neurorehabilitation, neurobehavioral rehabilitation and physical, occupational and
speech therapies, among others. The Companys customized service plans offer its clients as well as
the payors of these services, an attractive, cost-effective alternative to health and human
services provided in large, institutional settings.
The accompanying unaudited condensed consolidated financial statements have been prepared by
the Company in accordance with generally accepted accounting principles (GAAP) for interim
financial information and pursuant to the applicable rules and regulations of the Securities and
Exchange Commission (SEC). Accordingly, they do not include all of the information and footnotes
required by GAAP for complete financial statements. The unaudited condensed consolidated financial
statements herein should be read in conjunction with the Companys audited consolidated financial
statements and notes thereto included in the Companys Annual Report on Form 10-K for the fiscal
year ended September 30, 2010, which is on file with the SEC. In the opinion of management, the
accompanying unaudited condensed consolidated financial statements contain all adjustments,
consisting of normal and recurring accruals, necessary to present fairly the financial statements
in accordance with GAAP. Intercompany balances and transactions between the Company and its
subsidiaries have been eliminated in consolidation. Operating results for the three and six months
ended March 31, 2011 may not necessarily be indicative of results to be expected for any other
interim period or for the full year.
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 financial statements and the reported
amounts of revenue and expenses during the reporting period. Actual results could differ from those
estimates.
2. Recent Accounting Pronouncements
Presentation of Insurance Claims and Related Insurance Recoveries
In August 2010, the
Financial Accounting Standards Board (FASB) issued Accounting Standards Update No 2010-24,
Health
Care Entities (Topic 954), Presentation of Insurance Claims and Related Insurance Recoveries
(ASU
2010-24), which clarifies that companies should not net insurance recoveries against a related
claim liability. Additionally, the amount of the claim liability should be determined without
consideration of insurance recoveries. The adoption of ASU 2010-24 is effective for the Company
beginning October 1, 2011. With its adoption, the Companys accounting for insurance recoveries and
related claim liability will change on a prospective basis on the date of adoption. The Company is
evaluating the impact of this guidance on its financial statements.
Disclosure of Supplementary Pro Forma Information for Business Combinations
In December
2010, the FASB issued Accounting Standards Update 2010-29,
Business Combinations (Topic 805)
,
Disclosure of Supplementary Pro Forma Information for Business Combinations
(ASU 2010-29). ASU
2010-29 requires a public entity to disclose pro forma revenue and earnings of the combined entity
for the current reporting period as though the acquisition date for all business combinations that
occurred during the fiscal year had been as of the beginning of the annual reporting period or the
beginning of the comparable prior annual reporting
period if showing comparative financial statements. ASU 2010-29 is effective prospectively
for the Company for business combinations for which the acquisition date is on or after October 1,
2011.
6
3. Comprehensive Loss
The components of comprehensive loss and related tax effects are as follows:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Three Months Ended
|
|
|
Six Months Ended
|
|
|
|
March 31,
|
|
|
March 31,
|
|
(in thousands)
|
|
2011
|
|
|
2010
|
|
|
2011
|
|
|
2010
|
|
Net loss
|
|
$
|
(13,058
|
)
|
|
$
|
(4,656
|
)
|
|
$
|
(11,292
|
)
|
|
$
|
(4,698
|
)
|
Changes in unrealized
gain on derivatives
net of taxes of $0
and $1,207 for the
three months ended
March 31, 2011 and
2010, respectively
and $0 and $2,370 for
the six months ended
March 31, 2011 and
2010, respectively
|
|
|
|
|
|
|
1,777
|
|
|
|
|
|
|
|
3,490
|
|
Changes in unrealized
gain on
available-for-sale
debt securities net
of taxes of $531 and
$107 for the three
months ended March
31, 2011 and 2010,
respectively and $390
and $142 for the six
months ended March
31, 2011 and 2010,
respectively
|
|
|
(782
|
)
|
|
|
(158
|
)
|
|
|
(575
|
)
|
|
|
210
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Comprehensive
loss
|
|
$
|
(13,840
|
)
|
|
$
|
(3,037
|
)
|
|
$
|
(11,867
|
)
|
|
$
|
(998
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
4. Long-Term Debt
The Companys long-term debt consists of the following:
|
|
|
|
|
|
|
|
|
|
|
March 31,
|
|
|
September 30,
|
|
(in thousands)
|
|
2011
|
|
|
2010
|
|
Term loan, principal and interest due in quarterly installments through February 9, 2017
|
|
$
|
530,000
|
|
|
$
|
|
|
Original issue discount on term loan
|
|
|
(7,757
|
)
|
|
|
|
|
Old senior term B loan, principal
and interest were due in quarterly installments through June 29, 2013
|
|
|
|
|
|
|
320,763
|
|
Senior revolver, due February 9, 2016; quarterly cash interest payments at a variable interest rate
|
|
|
|
|
|
|
|
|
Old senior revolver, due June 29, 2012; quarterly cash interest payments at a variable interest rate
|
|
|
|
|
|
|
|
|
Senior notes, due February 15, 2018; semi-annual cash interest payments due each February 1st and
August 1st (interest rate of 12.50%)
|
|
|
250,000
|
|
|
|
|
|
Original
issue discount and initial purchase discount on senior notes
|
|
|
(11,033
|
)
|
|
|
|
|
Senior
subordinated notes, due July 1, 2014; semi-annual cash interest
payments were due each January
1st and July 1st (interest rate of 11.25%)
|
|
|
|
|
|
|
180,000
|
|
Term loan mortgage, principal and interest due in monthly installments through June 29, 2012;
variable interest rate (4.75% at September 30, 2010)
|
|
|
|
|
|
|
3,703
|
|
|
|
|
|
|
|
|
|
|
|
761,210
|
|
|
|
504,466
|
|
Less current portion
|
|
|
5,300
|
|
|
|
3,667
|
|
|
|
|
|
|
|
|
Long-term debt
|
|
$
|
755,910
|
|
|
$
|
500,799
|
|
|
|
|
|
|
|
|
At September 30, 2010, the Company had $504.5 million of indebtedness, consisting of $320.8
million of indebtedness under the old senior secured term B loan facility, $180.0 million principal
amount of the 11.25% Senior Subordinated Notes due 2014 (the senior subordinated notes) and $3.7
million outstanding under the mortgage facility. As of September 30, 2010, the Company did not have
any borrowings under the old senior revolving credit facility (the old senior revolver).
On February 9, 2011, the Company completed refinancing transactions, which included entering
into senior secured credit facilities and issuing $250.0 million in aggregate principal amount of
12.50% senior notes due 2018 (the senior notes).
Also, in connection with the refinancing transactions, the old senior secured credit
facilities and the mortgage facility were repaid. Approximately $171.9 million of the senior
subordinated notes were purchased on February 9, 2011 pursuant to a tender offer and consent
solicitation for the senior subordinated notes and the remaining senior subordinated notes were
redeemed prior to March 31, 2011.
The Company incurred $19.3
million of expenses related to the refinancing transactions including (i) $10.8 million related
to the tender premium and consent fees paid in connection with the repurchase of the senior
subordinated notes, (ii) $7.9 million related to the acceleration of deferred financing
costs related to the prior indebtedness and (iii) $0.6 million related to transaction costs.
These expenses are recorded on the Companys consolidated statements of operations as
Extinguishment of debt.
7
Senior Secured Credit Facilities
On February 9, 2011, the Company entered into new senior secured credit facilities, consisting
of a (i) six-year $530.0 million term loan facility (the term loan), of which $50.0 million was
deposited in a cash collateral account in support of issuance of letters of credit under an
institutional letter of credit facility (the institutional letter of credit facility) and a (ii)
$75.0 million five-year senior secured revolving credit facility (the senior revolver). The
Company refers to these facilities as the senior secured credit facilities.
Term loan
The $530.0 million term loan was issued at a price equal to 98.5% of its face value and
amortizes one percent per year, paid quarterly, with the remaining balance payable at maturity. The
senior credit agreement also includes a provision for the prepayment of a portion of the
outstanding term loan amounts beginning in fiscal 2011 equal to an amount ranging from 0-50% of a
calculated amount, depending on the Companys leverage ratio, if the Company generates certain
levels of cash flow. The variable interest rate on the term loan is equal to (i) a rate equal to
the greater of (a) the prime rate, (b) the federal funds rate plus 1/2 of 1% and (c) the Eurodollar
rate for an interest period of one-month beginning on such day plus 100 basis points, plus 4.25%;
or (ii) the Eurodollar rate (provided that the rate shall not be less than 1.75% per annum), plus
5.25%, at the Companys option. At March 31, 2011, the variable interest rate on the term loan was
7.0%.
Senior revolver
During the three months ended March 31, 2011, the Company borrowed $6.9 million under the
senior revolver and repaid the borrowings in the same period. The Company had $75.0 million of
availability under the senior revolver at March 31, 2011. As of March 31, 2011, the Company had
$36.5 million of letters of credit issued under the institutional letter of credit facility
primarily related to the Companys workers compensation insurance coverage. Letters of credit can
be issued under the Companys institutional letter of credit facility up to the $50.0 million
limit and letters of credit in excess of that amount reduce availability under the Companys senior
revolver. The interest rates for any borrowings under the senior revolver are the same as the term
loan.
Senior Notes
On
February 9, 2011, the Company issued $250.0 million of the senior notes at a price equal to 97.737% of their face value,
for net proceeds of $244.3 million. The net proceeds were reduced by an initial purchasers discount of $5.6 million. The senior notes are
the Companys unsecured obligations and are guaranteed by certain of the Companys existing
subsidiaries.
Cash paid for interest
Total cash paid for interest on the Companys debt amounted to $18.7 million and $15.8 million
for the three months ended March 31, 2011 and 2010, respectively and $21.0 million and $21.8
million for the six months ended March 31, 2011 and 2010, respectively.
Covenants
The senior credit agreement and the indenture governing the senior notes contain negative
financial and non-financial covenants, including, among other things, limitations on the Companys
ability to incur additional debt, transfer or sell assets, pay dividends, redeem stock or make
other distributions or investments, and engage in certain transactions with affiliates. In
addition, the senior credit agreement governing our senior secured credit facilities contains
financial covenants that require the Company to maintain a specified consolidated leverage ratio
and consolidated interest coverage ratio commencing with the quarter ending September 30, 2011.
The Company is restricted from paying dividends to NMH Holdings, LLC (Parent) in excess of
$15.0 million, except for dividends used for the repurchase of equity from former officers and
employees and for the payment of management fees, taxes, and certain other expenses.
Derivatives
The Company entered into an interest rate swap in a notional amount of $400.0 million
effective March 31, 2011 and ending September 30, 2014. The Company entered into this interest
rate swap to hedge the risk of changes in the floating rate of interest on borrowings under the
term loan. Under the terms of the swap, the Company receives from the counterparty a
quarterly payment based on a rate equal to the greater of 3-month LIBOR and 1.75% per annum, and
the Company makes payments to the counterparty based on a fixed rate of 2.54650% per annum, in each
case on the notional amount of $400.0 million, settled on a net
payment basis. Based on the applicable margin of 5.25% under the
Companys term loan, this
swap effectively fixes the Companys cost of borrowing for $400.0 million of the term loan at
7.7965% per annum for the term of the swap.
8
The Company will account for the interest rate swap as a cash flow hedge. The effectiveness of
the hedge relationship will be assessed on a quarterly basis during
the term of the hedge.
5. Shareholders Equity
Common Stock
The holders of the Companys common stock are entitled to receive dividends when and as
declared by the Companys Board of Directors. In addition, the holders of common stock are
entitled to one vote per share. All of the outstanding shares of common stock are held by Parent.
Dividend to Parent
On February 9, 2011, as part of the refinancing transactions described in Note 4, the Company
paid a dividend of $219.7 million to Parent, which in turn made a distribution of $219.7 million to
its direct parent, NMH Holdings, Inc. (NMH Holdings). NMH Holdings used the proceeds of the distribution to (i)
repurchase $210.9 million aggregate principal amount of the Senior Floating Rate Toggle Notes due
2014 (the NMH Holdings notes) at a premium and (ii) pay related fees and expenses.
6. Business Combinations
The operating results of the businesses acquired during the three months ended March 31, 2011
were included in the consolidated statements of operations from the date of acquisition. The
Company accounted for the acquisitions under the purchase method of accounting and, as a result,
the purchase price was allocated to the assets acquired and liabilities assumed based upon their
respective fair values. The excess of the purchase price over the estimated fair value of net
tangible assets was allocated to specifically identified intangible assets, with the residual being
allocated to goodwill.
During the three months ended March 31, 2011, the Company acquired two companies complementary
to its business engaged in behavioral health and human services for total fair value consideration
of $0.4 million. As a result of these acquisitions, the Company recorded $0.2 million of goodwill
and $0.2 million of intangible assets in the Human Services segment.
During the six months ended March 31, 2011, the Company acquired five companies complementary
to its business engaged in behavioral health and human services for total fair value consideration
of $3.3 million. As a result of these acquisitions, the Company recorded $1.0 million of goodwill and
$1.4 million of intangible assets in the Human
Services segment and $0.2 million of goodwill and $0.4 million
of intangible assets in the
Post-Acute Specialty Rehabilitation Services
segment. The remaining purchase price was allocated to tangible assets.
Contingent consideration
Springbrook
On January 15, 2010, the Company acquired the assets of Springbrook, Inc. and an
affiliate (together, Springbrook) for total fair value consideration of $9.3 million, subject to
increase based on an earn-out. The earn-out provided that an additional $3.5 million in cash could
be paid based upon the purchased entitys achieving certain earnings targets (the earn-out). The
fair value of the earn-out on the date of acquisition was $1.6 million. For the six months ended March 31, 2011, the fair value of the earn-out increased $0.3 million.
Since the initial
estimate, the fair-value of the earn-out has increased to $3.4 million based on actual financial
performance of Springbook. The increase in the fair-value of the earn-out is being recognized as a
charge to earnings and is included in general and administrative expenses in the consolidated
statements of operations.
9
IFCS
On June 1, 2009, the Company acquired the stock of Institute for Family Centered
Services, Inc. (IFCS) for total cash of $11.5 million. This acquisition took place prior to the
October 1, 2009 change in authoritative guidance and as a result, any adjustments to the earn-out are recorded to goodwill. During fiscal 2010, the Company
accrued an additional $3.3 million of expected earn-out which was paid during the three months
ended December 31, 2010.
7. Goodwill and Intangible Assets
Goodwill
The
changes in goodwill for the six months ended March 31, 2011 are as follows:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Post Acute
|
|
|
|
|
|
|
|
|
|
|
Specialty
|
|
|
|
|
|
|
Human
|
|
|
Rehabilitation
|
|
|
|
|
(in thousands)
|
|
Services
|
|
|
Services
|
|
|
Total
|
|
Balance as of September 30, 2010
|
|
$
|
169,885
|
|
|
$
|
59,872
|
|
|
$
|
229,757
|
|
Goodwill acquired through acquisitions
|
|
|
1,026
|
|
|
|
237
|
|
|
|
1,263
|
|
Adjustments to goodwill, net
|
|
|
65
|
|
|
|
(267
|
)
|
|
|
(202
|
)
|
|
|
|
|
|
|
|
|
|
|
Balance as of March 31, 2011
|
|
$
|
170,976
|
|
|
$
|
59,842
|
|
|
$
|
230,818
|
|
|
|
|
|
|
|
|
|
|
|
The adjustments to goodwill relate to the finalization of the purchase price for acquisitions
during the measurement period.
Intangible Assets
Intangible assets consist of the following as of March 31, 2011:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Gross
|
|
|
|
|
|
|
|
|
|
Carrying
|
|
|
Accumulated
|
|
|
Intangible
|
|
Description
|
|
Value
|
|
|
Amortization
|
|
|
Assets, Net
|
|
(in thousands)
|
|
|
|
|
|
|
|
|
|
|
|
|
Agency contracts
|
|
$
|
467,515
|
|
|
$
|
128,495
|
|
|
$
|
339,020
|
|
Non-compete/non-solicit
|
|
|
1,044
|
|
|
|
508
|
|
|
|
536
|
|
Relationship with contracted caregivers
|
|
|
12,804
|
|
|
|
6,755
|
|
|
|
6,049
|
|
Trade names
|
|
|
4,039
|
|
|
|
1,674
|
|
|
|
2,365
|
|
Trade names
|
|
|
47,700
|
|
|
|
|
|
|
|
47,700
|
|
Licenses and permits
|
|
|
42,713
|
|
|
|
17,828
|
|
|
|
24,885
|
|
Intellectual property
|
|
|
904
|
|
|
|
237
|
|
|
|
667
|
|
|
|
|
|
|
|
|
|
|
|
|
|
$
|
576,719
|
|
|
$
|
155,497
|
|
|
$
|
421,222
|
|
|
|
|
|
|
|
|
|
|
|
Intangible assets consist of the following as of September 30, 2010:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Gross
|
|
|
|
|
|
|
|
|
|
Carrying
|
|
|
Accumulated
|
|
|
Intangible
|
|
Description
|
|
Value
|
|
|
Amortization
|
|
|
Assets, Net
|
|
(in thousands)
|
|
|
|
|
|
|
|
|
|
|
|
|
Agency contracts
|
|
$
|
465,679
|
|
|
$
|
113,418
|
|
|
$
|
352,261
|
|
Non-compete/non-solicit
|
|
|
1,044
|
|
|
|
403
|
|
|
|
641
|
|
Relationship with contracted caregivers
|
|
|
12,804
|
|
|
|
5,977
|
|
|
|
6,827
|
|
Trade names
|
|
|
4,039
|
|
|
|
1,463
|
|
|
|
2,576
|
|
Trade names
|
|
|
47,700
|
|
|
|
|
|
|
|
47,700
|
|
Licenses and permits
|
|
|
42,713
|
|
|
|
15,693
|
|
|
|
27,020
|
|
Intellectual property
|
|
|
904
|
|
|
|
172
|
|
|
|
732
|
|
|
|
|
|
|
|
|
|
|
|
|
|
$
|
574,883
|
|
|
$
|
137,126
|
|
|
$
|
437,757
|
|
|
|
|
|
|
|
|
|
|
|
Amortization expense was $9.1 million and $8.6 million for the three months ended March 31,
2011 and 2010, respectively and $18.4 million and $16.9 million for the six months ended March 31,
2011 and 2010, respectively.
10
8. Related Party Transactions
Management Agreements
On June 29, 2006, the Company entered into a management agreement with Vestar Capital Partners
V, L.P. (Vestar) relating to certain advisory and consulting services for an annual management
fee equal to the greater of (i) $850 thousand or (ii) an amount equal to 1.0% of the Companys
consolidated earnings before interest, taxes, depreciation, amortization and management fee for
each fiscal year determined as set forth in the Companys senior credit agreement.
As part of the management agreement, the Company agreed to indemnify Vestar and its affiliates
from and against all losses, claims, damages and liabilities arising out of the performance by
Vestar of its services pursuant to the management agreement. The management agreement will
terminate upon such time that Vestar and its partners and their respective affiliates hold,
directly or indirectly in the aggregate, less than 20% of the voting power of the outstanding
voting stock of the Company.
This agreement was amended and restated effective February 9, 2011 to
provide for the payment of reasonable and customary fees to Vestar for services in connection with
a sale of the Company, an initial public offering by or involving NMH Investment, LLC (NMH
Investment) or any of its subsidiaries or any extraordinary acquisition by or involving NMH
Investment or any of its subsidiaries; provided, that such fees shall only be paid with the consent
of the directors of the Company who are not affiliated with or employed by Vestar. The Company
expensed $0.3 million of management fees and expenses for the three months ended March 31, 2011 and
2010 and $0.7 million and $0.6 million for the six months ended March 31, 2011 and 2010,
respectively.
Consulting Agreements
During
fiscal 2010, the Company engaged Alvarez & Marsal Healthcare
Industry Group (Alvarez & Marsal) to provide
certain transaction advisory and other services. A Company director, Guy Sansone, is a Managing
Director at Alvarez & Marsal and the head of its Healthcare Industry Group. The engagement resulted
in aggregate fees of $0.6 million for the six months ended March 31, 2011, and was approved by the
Companys Audit Committee. Mr. Sansone is not a member of the Companys Audit Committee and was not
personally involved in the engagement.
The Company engaged Duff & Phelps, LLC as a financial advisor in connection with the
refinancing transactions described in Note 4, including the repurchase of the NMH Holdings notes,
and related matters. According to public filings, Vestar owns 12.4% of the Class A common stock of
Duff & Phelps Corporation, the parent company of Duff & Phelps, LLC, and one of Vestars principals
serves on the Board of Directors of Duff & Phelps Corporation but was not personally involved in
this engagement. This engagement resulted in fees of approximately
$0.2 million during the six months ended March 31, 2011 and was approved by the Companys Board of Directors, with the Vestar members abstaining from
voting.
Lease Agreements
The Company leases several offices, homes and other facilities from its employees, or from
relatives of employees, primarily in the states of California, Nevada and Arkansas, which have
various expiration dates extending out as far as February 2020. In connection with the acquisition of
NeuroRestorative in the second quarter of fiscal 2010, the Company entered into a lease of a
treatment facility in Arkansas with a former shareholder and executive who is providing consulting
services. The lease is an operating lease with an initial ten-year term, and the total expected
minimum lease commitment is $7.0 million.
Related party lease expense was $1.2 million and $1.1 million for the three months ended March
31, 2011 and 2010, respectively and $2.4 million and $2.1 million for the six months ended March
31, 2011 and 2010, respectively
Investment in Related Party Debt Securities
During fiscal 2009, the Company purchased $11.5 million in aggregate principal amount of the
NMH Holdings notes for $6.6 million. The security was classified as an available-for-sale debt
security and recorded on the Companys consolidated balance sheets as Investment in related party
debt securities. Cash interest on the NMH Holdings notes accrued at a rate per annum, reset
quarterly, equal to LIBOR plus 6.375%, and PIK Interest (defined below) accrued at the cash
interest rate plus 0.75%. NMH Holdings paid all of the interest on the NMH Holdings notes entirely
by increasing the principal amount of the NMH Holdings notes or issuing new notes (PIK Interest).
11
The carrying value of the asset increased after it was purchased as a result of the Company
recording (i) PIK Interest income and (ii) accretion of the purchase discount on the security. The
Companys investment in related-party debt securities was reflected on the Companys consolidated
balance sheets at fair value with the unrealized holding gain recorded in accumulated other
comprehensive income.
NMH Holdings purchased the NMH Holdings notes held by the Company on February 9, 2011 in
connection with the refinancing transactions.
9. Fair Value Measurements
The Company measures and reports its financial assets and liabilities on the basis of fair
value. Fair value is defined as the price that would be received to sell an asset or paid to
transfer a liability (an exit price) in the principal or most advantageous market for the asset or
liability in an orderly transaction between market participants on the measurement date.
A three-level hierarchy for disclosure has been established to show the extent and level of
judgment used to estimate fair value measurements, as follows:
Level 1:
Quoted market prices in active markets for identical assets or liabilities.
Level 2:
Significant other observable inputs (quoted prices in active markets for similar
assets or liabilities, quoted prices for identical or similar assets or liabilities in markets
that are not active, or inputs other than quoted prices that are observable for the asset or
liability).
Level 3:
Significant unobservable inputs for the asset or liability. These values are
generally determined using pricing models which utilize management estimates of market
participant assumptions.
Valuation techniques for assets and liabilities measured using Level 3 inputs may include
methodologies such as the market approach, the income approach or the cost approach, and may use
unobservable inputs such as projections, estimates and managements interpretation of current
market data. These unobservable inputs are only utilized to the extent that observable inputs are
not available or cost-effective to obtain.
A description of the valuation methodologies used for instruments measured at fair value as
well as the general classification of such instruments pursuant to the valuation hierarchy, is set
forth below.
Assets and liabilities recorded at fair value at March 31, 2011 consist of:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Quoted
|
|
|
Significant Other
|
|
|
Significant
|
|
|
|
|
|
|
|
Market Prices
|
|
|
Observable Inputs
|
|
|
Unobservable Inputs
|
|
|
|
Total
|
|
|
(Level 1)
|
|
|
(Level 2)
|
|
|
(Level 3)
|
|
|
|
(In thousands):
|
|
Contingent consideration
|
|
$
|
(3,362
|
)
|
|
$
|
|
|
|
$
|
|
|
|
$
|
(3,362
|
)
|
Assets and liabilities
recorded at fair value at September 30, 2010
consist of:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Quoted
|
|
|
Significant Other
|
|
|
Significant
|
|
|
|
|
|
|
|
Market Prices
|
|
|
Observable Inputs
|
|
|
Unobservable Inputs
|
|
|
|
Total
|
|
|
(Level 1)
|
|
|
(Level 2)
|
|
|
(Level 3)
|
|
|
|
(In thousands):
|
|
Cash equivalents
|
|
$
|
15,500
|
|
|
$
|
15,500
|
|
|
$
|
|
|
|
$
|
|
|
Investment in related party debt securities
|
|
$
|
10,599
|
|
|
$
|
|
|
|
$
|
10,599
|
|
|
$
|
|
|
Contingent consideration
|
|
$
|
(3,041
|
)
|
|
$
|
|
|
|
$
|
|
|
|
$
|
(3,041
|
)
|
Cash equivalents.
Cash equivalents consist primarily of money market funds and the carrying
value of cash equivalents approximates fair value.
Investment in related party debt securities.
The fair value of the investment in related party
debt securities was recorded in long-term assets (under Investment in related party debt
securities). The fair value measurements consider observable market data that may include, among
other data, credit ratings, credit spreads, future interest rates and risk free rates of return.
12
Contingent consideration.
The fair value of the earn-out associated with the fiscal 2010
acquisitions was accrued for and classified as contingent consideration. The fair value was
determined based on unobservable inputs, namely managements estimate of expected performance based
on current information.
The following table provides a reconciliation of the beginning and ending balances for the
liability measured at fair value using significant unobservable inputs (Level 3).
|
|
|
|
|
|
|
Due to Seller
|
|
Balance at September 30, 2010
|
|
$
|
(3,041
|
)
|
Change in fair value of contingent consideration
|
|
|
(321
|
)
|
|
|
|
|
Balance at March 31, 2011
|
|
$
|
(3,362
|
)
|
|
|
|
|
At March 31, 2011, the carrying values of cash, accounts receivable and accounts payable
approximated fair value. The carrying value and fair value of the Companys debt instruments are
set forth below:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
March 31, 2011
|
|
|
September 30, 2010
|
|
|
|
Carrying
|
|
|
Fair
|
|
|
Carrying
|
|
|
Fair
|
|
|
|
Amount
|
|
|
Value
|
|
|
Amount
|
|
|
Value
|
|
|
|
(In thousands)
|
|
Senior subordinated notes (retired February 9, 2011)
|
|
$
|
|
|
|
$
|
|
|
|
$
|
180,000
|
|
|
$
|
184,050
|
|
Senior notes (issued February 9, 2011)
|
|
$
|
238,967
|
|
|
$
|
239,375
|
|
|
|
|
|
|
|
|
|
The Company estimated the fair value of the debt instruments using market quotes and
calculations based on current market rates available.
10. Income Taxes
The Companys effective income tax rate for the interim periods was based on managements
estimate of the Companys annual effective tax rate for the applicable year. For the three months
ended March 31, 2011, the Companys effective income tax rate was 34.7% compared to an effective
tax rate of 61.6% for the three months ended March 31, 2010. For the six months ended March 31,
2011, the Companys effective income tax rate was 33.2% compared to an effective tax rate of 86.3%
for the six months ended March 31, 2010. These rates differ from the federal statutory income tax
rate primarily due to nondeductible permanent differences such as meals and nondeductible
compensation, net operating losses not benefited and changes in the applicability of certain
employment tax credits.
NMH Holdings files a federal consolidated return and files various state income tax returns.
The Company files various state income tax returns and, generally, is no longer subject to income
tax examinations by the taxing authorities for years prior to September 30, 2003. The Companys
reserve for uncertain income tax positions at March 31, 2011 is $4.9 million. There has been no
change in unrecognized tax benefits in the six months ended March 31, 2011 and the Company does not
expect any significant changes to unrecognized tax benefits within the next twelve months. The
Companys policy is to recognize interest and penalties related to unrecognized tax benefits as
charges to income tax expense.
11. Segment Information
The Company has two reportable segments, Human Services and Post-Acute Specialty
Rehabilitation Services (SRS).
The Human Services segment delivers home and community-based human services to adults and
children with intellectual and/or developmental disabilities and to youth with emotional,
behavioral and/or medically complex challenges. Human Services is organized in a reporting
structure composed of two operating segments which are aggregated into one reportable segment based
on similarity of the economic characteristics and services provided.
The SRS segment delivers health care and community-based health and human services to
individuals who have suffered acquired brain, spinal injuries and other catastrophic injuries and
illnesses. This segment is organized in a reporting structure composed of two operating segments
which are aggregated based on similarity of economic characteristics and services provided.
Activities classified as Corporate in the table below relate primarily to unallocated home
office items.
13
The Company generally evaluates the performance of its operating segments based on income from
operations. The following is a financial summary by reportable operating segment for the periods
indicated.
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Post-Acute
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Specialty
|
|
|
|
|
|
|
|
(in thousands)
|
|
Human
|
|
|
Rehabilitation
|
|
|
|
|
|
|
|
For the three months ended March 31,
|
|
Services
|
|
|
Services
|
|
|
Corporate
|
|
|
Consolidated
|
|
2011
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net revenue
|
|
$
|
223,678
|
|
|
$
|
43,268
|
|
|
$
|
|
|
|
$
|
266,946
|
|
Income (loss) from operations
|
|
|
20,660
|
|
|
|
4,387
|
|
|
|
(14,704
|
)
|
|
|
10,343
|
|
Total assets
|
|
|
564,405
|
|
|
|
157,866
|
|
|
|
307,408
|
|
|
|
1,029,679
|
|
Depreciation and amortization
|
|
|
10,803
|
|
|
|
3,088
|
|
|
|
1,122
|
|
|
|
15,013
|
|
2010
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net revenue
|
|
$
|
219,151
|
|
|
$
|
31,851
|
|
|
$
|
|
|
|
$
|
251,002
|
|
Income (loss) from operations
|
|
|
19,417
|
|
|
|
3,415
|
|
|
|
(12,082
|
)
|
|
|
10,750
|
|
Depreciation and amortization
|
|
|
10,875
|
|
|
|
2,183
|
|
|
|
1,173
|
|
|
|
14,231
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Post-Acute
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Specialty
|
|
|
|
|
|
|
|
(in thousands)
|
|
Human
|
|
|
Rehabilitation
|
|
|
|
|
|
|
|
For the six months ended March 31,
|
|
Services
|
|
|
Services
|
|
|
Corporate
|
|
|
Consolidated
|
|
2011
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net revenue
|
|
$
|
446,906
|
|
|
$
|
86,567
|
|
|
$
|
|
|
|
$
|
533,473
|
|
Income (loss) from operations
|
|
|
40,954
|
|
|
|
9,245
|
|
|
|
(28,984
|
)
|
|
|
21,215
|
|
Total assets
|
|
|
564,405
|
|
|
|
157,866
|
|
|
|
307,408
|
|
|
|
1,029,679
|
|
Depreciation and amortization
|
|
|
21,668
|
|
|
|
6,081
|
|
|
|
2,271
|
|
|
|
30,020
|
|
2010
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net revenue
|
|
$
|
440,521
|
|
|
$
|
60,487
|
|
|
$
|
|
|
|
$
|
501,008
|
|
Income (loss) from operations
|
|
|
39,508
|
|
|
|
6,546
|
|
|
|
(24,057
|
)
|
|
|
21,997
|
|
Depreciation and amortization
|
|
|
21,925
|
|
|
|
4,135
|
|
|
|
2,338
|
|
|
|
28,398
|
|
12. Accruals for Self-Insurance and Other Commitments and Contingencies
The Company maintains insurance for professional and general liability, workers compensation
liability, automobile liability and health insurance liabilities that include self-insured
retentions. The Company intends to maintain such coverage in the future and is of the opinion that
its insurance coverage is adequate to cover potential losses on asserted claims. Employment
practices liability is fully self-insured.
Until September 30, 2010, the Company insured professional and general liability through its
captive insurance subsidiary amounts of up to $1.0 million per claim and up to $2.0 million in the
aggregate. Commencing October 1, 2010, the Company is self-insured for $2.0 million per claim and
$8.0 million in the aggregate, and for $500 thousand per claim in excess of the aggregate. In
connection with the Merger on June 29, 2006, subject to the $1.0 million per claim and up to $2.0
million in the aggregate retentions, the Company purchased additional insurance for certain claims
relating to pre-Merger periods. For workers compensation, the Company has a $350 thousand per
claim retention with statutory limits. Automobile liability has a $100 thousand per claim
retention, with additional insurance coverage above the retention. The Company purchases specific
stop loss insurance as protection against extraordinary claims liability for health insurance
claims. Stop loss insurance covers claims that exceed $300 thousand on a per member basis.
During fiscal 2010, the Companys wholly-owned subsidiary captive insurance company provided
coverage for the Companys self-insured portion of professional and general liability claims and
its employment practices liability. The accounts of the captive insurance company were fully
consolidated with those of the other operations of the Company in the Companys consolidated
financial statements for fiscal 2010. Effective September 30, 2010, the captive insurance
subsidiary was dissolved and the Company is no longer self-insured through the captive subsidiary
as of that date.
14
The Company is in the health and human services business and, therefore, has been and
continues to be subject to substantial claims alleging that the Company, its employees or its
independently contracted host-home caregivers (Mentors) failed to provide
proper care for a client. The Company is also subject to claims by its clients, its employees,
its Mentors or community members against the Company for negligence, intentional misconduct or
violation of applicable laws. Included in the Companys recent claims are claims alleging personal
injury, assault, battery, abuse, wrongful death and other charges. Regulatory agencies may initiate
administrative proceedings alleging that the Companys programs, employees or agents violate
statutes and regulations and seek to impose monetary penalties on the Company. The Company could be
required to incur significant costs to respond to regulatory investigations or defend against civil
lawsuits and, if the Company does not prevail, the Company could be required to pay substantial
amounts of money in damages, settlement amounts or penalties arising from these legal proceedings.
The Company reserves for costs related to contingencies when a loss is probable and the amount
is reasonably estimable. While the Company believes the provision for legal contingencies is
adequate, the outcome of the legal proceedings is difficult to predict and the Company may settle
legal claims or be subject to judgments for amounts that differ from the Companys estimates.
13. Subsequent Events
On May 10, 2011, the board of directors of NMH Investment, the indirect parent company of the
Company, approved an amendment (the Amendment) to the NMH Investment, LLC Amended and Restated
2006 Unit Plan (the 2006 Unit Plan) to authorize the issuance of Class F Common Units (the Class
F Common Units) of NMH Investment, a new class of non-voting equity units of NMH Investment, under
the 2006 Unit Plan. Pursuant to the Amendment, up to 5,396,388 Class F Common Units may be issued
under the 2006 Unit Plan to senior managers of the Company as equity-based compensation.
In addition, the terms of the Class B, C and D Common Units were amended to accelerate the vesting of any
unvested Class B, C and D Common Units so that they became 100% vested on May 10, 2011.
15
|
|
|
Item 2.
|
|
Managements Discussion and Analysis of Financial Condition and Results of Operations.
|
The following discussion of our financial condition and results of operations should be read
in conjunction with our Annual Report on
Form 10-K
for the fiscal year ended September 30, 2010, as
well as our reports on Forms 10-Q and 8-K and other publicly available information. This discussion
may contain forward-looking statements about our markets, the demand for our services and our
future results. We based these statements on assumptions that we consider reasonable. Actual
results may differ materially from those suggested by our forward-looking statements for various
reasons, including those discussed in the Risk factors and Forward-looking statements sections
of this report.
Overview
We are a leading provider of home and community-based health and human services to adults and
children with intellectual and/or developmental disabilities (I/DD), acquired brain injury
(ABI) and other catastrophic injuries and illnesses, and to youth with emotional, behavioral
and/or medically complex challenges, or at-risk youth (ARY). Since our founding in 1980, we have
grown to provide services to approximately 23,500 clients in 36 states.
We design customized service plans to meet the unique needs of our clients, which we deliver
in home and community-based settings. Most of our service plans involve residential support,
typically in small group homes, host home settings or specialized community facilities, designed to
improve our clients quality of life and to promote client independence and participation in
community life. Other services offered include supported living, day and transitional programs,
vocational services, case management, family-based services, post-acute treatment and
neurorehabilitation, neurobehavioral rehabilitation and physical, occupational and speech
therapies, among others. Our customized service plans offer our clients, as well as the payors for
these services, an attractive, cost-effective alternative to health and human services provided in
large, institutional settings.
We offer our services through a variety of models, including (i) small group homes, most of
which are residences for six people or fewer, (ii) host homes, or the Mentor model, in which a
client lives in the home of a trained Mentor, (iii) in-home settings, in which we support clients
independence with 24-hour services in their own homes, (iv) small, specialized community facilities
which provide post-acute, specialized rehabilitation and comprehensive care for individuals who
have suffered ABI, spinal injuries and other catastrophic injuries and illnesses and (v)
non-residential settings, consisting primarily of day programs and periodic services in various
settings.
Delivery of services to adults and children with I/DD is the largest portion of our Human
Services segment. Our I/DD programs include residential support, day habilitation, vocational
services, case management and personal care. Our Human Services segment also includes the delivery
of ARY services. Our ARY programs include therapeutic foster care, family reunification, family
preservation, early intervention and adoption services. Our Post-Acute Specialty Rehabilitation
Services (SRS) segment delivers healthcare and community-based human services to individuals who
have suffered ABI, spinal injuries and other catastrophic injuries and illnesses. Our services
range from sub-acute healthcare for individuals with intensive medical needs to day treatment
programs, and include skilled nursing, neurorehabilitation, neurobehavioral rehabilitation,
physical, occupational, and speech therapy, supported living, outpatient treatment, and
pre-vocational services.
We have two reportable segments, Human Services and SRS. The Human Services segment provides
home and community-based human services to adults and children with intellectual and/or
developmental disabilities and to youth with emotional, behavioral and/or medically complex
challenges. The SRS segment provides a mix of health care and community-based health and human
services to individuals who have suffered ABI, spinal injuries and other catastrophic injuries and
illnesses.
Factors Affecting our Operating Results
Demand for Home and Community-Based Health and Human Services
Our growth in revenue has historically been related to increases in the rates we receive for
our services as well as increases in the number of individuals served. This growth has depended
largely upon development-driven activities, including the maintenance and expansion of existing
contracts and the award of new contracts, and upon acquisitions. We also attribute the continued
growth in our client base to certain trends that are increasing demand in our industry, including
demographic, medical and political developments.
16
Demographic trends have a particular impact on our I/DD business. Increases in the life
expectancy of individuals with I/DD, we believe, have resulted in steady increases in the demand
for I/DD services. In addition, caregivers currently caring for their relatives at home are aging
and may soon be unable to continue with these responsibilities. Each of these factors affects the
size of the I/DD population in need of services. Similarly, growth for our ARY services has been
driven by favorable demographics. Demand for our SRS services has
also grown as faster emergency response and improved medical techniques have resulted in more
people surviving a catastrophic injury, as well as spinal cord and other catastrophic injuries. SRS
services are increasingly sought out as a clinically-appropriate and less-expensive alternative to
institutional care and step-down for individuals who no longer require care in acute settings.
Political and economic trends can also affect our operations. In particular, state budgetary
pressures, especially within Medicaid programs, may influence the overall level of payments for our
services, the number of clients and the preferred settings for many of the services we provide.
Since the beginning of the recent economic downturn, our government payors in several states have
responded to deteriorating revenue collections by implementing provider rate reductions, including
in the states of Arizona, California, Indiana and Minnesota. In total, rate reductions implemented
since October 1, 2008 have reduced revenue by approximately $16 million or about 1.6% of revenue.
In addition, the volume of referrals to our programs has also been constrained in many markets as
payors have taken steps to reduce spending. With the termination of the enhanced federal Medicaid
funding after June 30, 2011 and the significant budgetary challenges confronting state governments
for fiscal 2012, which begins July 1, 2011 in most states, we expect some of our public payors will
implement additional rate reductions in the coming months.
Historically, pressure from client advocacy groups for the populations we serve has generally
helped our business, as these groups generally seek to pressure governments to fund residential
services that use our small group home or host home models, rather than large, institutional
models. In addition, our ARY services have historically been positively affected by the trend
toward privatization of these services. Furthermore, we believe that successful lobbying by these
groups has preserved I/DD and ARY services and, therefore, our revenue base, from significant
cutbacks as compared with certain other human services, although we have suffered rate reductions
in the current recessionary environment. In addition, a number of states have developed
community-based waiver programs to support long-term care services for survivors of a traumatic
brain injury. The majority of our specialty rehabilitation services revenue is derived from
non-public payors, such as commercial insurers, managed care and other private payors.
Expansion
We have grown our business through expansion of existing markets and programs as well as
through acquisitions.
Organic Growth
We believe that our future growth will depend heavily on our ability to expand existing
service contracts and to win new contracts. Our organic expansion activities consist of both new
program starts in existing markets and geographical expansion in new markets. Our new programs in
new and existing geographic markets (which we refer to as new starts) typically require us to
fund operating losses for a period of approximately 18 to 24 months. If a new start does not become
profitable during such period, we may terminate it. During the twelve months ended March 31, 2011,
operating losses on new starts for programs started within the previous 18 months were $1.8
million.
Acquisitions
As of March 31, 2011, we have completed 31 acquisitions since 2005, including several
acquisitions of rights to government contracts or fixed assets from small providers, which we
integrate with our existing operations. We have pursued larger strategic acquisitions in markets
with significant opportunities. Acquisitions could have a material impact on our consolidated
financial statements.
During the three months ended March 31, 2011, we acquired two companies complementary to our
business for total fair value consideration of $0.4 million. Both companies are included in the
Human Services segment.
For additional information on the acquisitions made during three and six months ended March 31, 2011,
see Note 6. Business Combinations to our consolidated financial statements included elsewhere in
this report.
17
Divestitures
We regularly review and consider the divestiture of underperforming or non-strategic
businesses to improve our operating results and better utilize our capital. We have made
divestitures from time to time and expect that we may make additional divestitures in the future.
Divestitures could have a material impact on our consolidated financial statements.
Net revenue
Revenue is reported net of allowances for unauthorized sales and estimated sales adjustments.
Revenue is also reported net of any state provider taxes or gross receipts taxes levied on services
we provide. For the three months ended March 31, 2011, we derived approximately 90% of our net
revenue from state and local government payors and approximately 10% of our net revenue from
non-public payors. Substantially all of our non-public revenue is generated by our SRS business
through contracts with commercial insurers, workers compensation carriers and other private
payors. The payment terms and rates of these contracts vary widely by jurisdiction and service
type, and may be based on per person per diems, rates established by the jurisdiction, cost-based
reimbursement, hourly rates and/or units of service. We bill most of our residential services on a
per diem basis, and we bill most of our non-residential services on an hourly basis. Some of our
revenue is billed pursuant to cost-based reimbursement contracts, under which the billed rate is
tied to the underlying costs. Lower than expected cost levels may require us to return previously
received payments after cost reports are filed. Reserves are provided when estimable and probable.
In addition, our revenue may be affected by adjustments to our billed rates as well as adjustments
to previously billed amounts. Revenue in the future may be affected by changes in rate-setting
structures, methodologies or interpretations that may be proposed in states where we operate or by
the federal government which provides matching funds. We cannot determine the impact of such
changes or the effect of any possible governmental actions.
Occasionally, timing of payment streams may be affected by delays by the state related to bill
processing systems, staffing or other factors. While these delays have historically impacted our
cash position in particular periods, they have not resulted in long-term collections problems.
Expenses
Expenses directly related to providing services are classified as cost of revenue. Direct
costs and expenses principally include salaries and benefits for service provider employees, per
diem payments to our Mentors, residential occupancy expenses, which are primarily comprised of rent
and utilities related to facilities providing direct care, certain client expenses such as food,
medicine and transportation costs for clients requiring services and insurance costs. General and
administrative expenses primarily include salaries and benefits for administrative employees, or
employees that are not directly providing services, administrative occupancy costs as well as
professional expenses such as consulting and accounting services. Depreciation and amortization
includes depreciation for fixed assets utilized in both facilities providing direct care and
administrative offices, and amortization related to intangible assets.
Wages and benefits to our employees and per diem payments to our Mentors constitute the most
significant operating cost in each of our operations. Most of our employee caregivers are paid on
an hourly basis, with hours of work generally tied to client need. Our Mentors are paid on a per
diem basis, but only if the Mentor is currently caring for a client. Our labor costs are generally
influenced by levels of service and these costs can vary in material respects across regions.
Occupancy costs represent a significant portion of our operating costs. As of March 31, 2011,
we owned 401 facilities and one office, and we leased 945 facilities
and 270 offices. We incur no
facility costs for services provided in the home of a Mentor.
18
Expenses incurred in connection with liability insurance and third-party claims for
professional and general liability totaled 0.9% and 0.4% of our net revenue for the three months
ended March 31, 2011 and 2010, respectively and 1.0% and 0.4% of our net revenue for the six months
ended March 31, 2011 and 2010, respectively. We have incurred professional and general liability
claims and insurance expense for professional and general liability of $2.5 million and $1.0
million for the three months ended March 31, 2011 and 2010, respectively, and $5.2 million and $2.1
million for the six months ended March 31, 2011 and 2010, respectively. Claims paid by us and our
insurers for professional and general liability have increased sharply in recent years. We have
historically self-insured amounts of up to $1.0 million per claim and up to $2.0 million in the
aggregate. Commencing October 1, 2010, we pay substantially higher premiums for our professional
and general liability policies, and our self-insured retentions substantially exceed the amounts we
previously had. Since October 1, 2010, we have had self-insured retentions for $2.0 million per
claim and $8.0 million in the aggregate, and for $500 thousand per claim in excess of the
aggregate.
During fiscal 2010, our wholly-owned subsidiary captive insurance company provided coverage
for our self-insured portion of professional and general liability claims and our employment
practices liability. The accounts of the captive insurance company were fully consolidated with
those of our other operations in our consolidated financial statements for fiscal 2010. Effective
September 30, 2010, the captive insurance subsidiary was dissolved and we are no longer
self-insured through the captive subsidiary on the effective date.
Our ability to maintain our margin in the future is dependent upon obtaining increases in
rates and/or controlling our expenses. In fiscal 2008, 2009 and 2010, we invested in infrastructure
initiatives and business process improvements, which had a net negative impact on our margin.
Results of Operations
The following table sets forth income (loss) from operations as a percentage of net revenue
for the periods indicated:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Post Acute Specialty
|
|
|
|
|
|
|
|
For the Three Months Ended March 31,
|
|
Human Services
|
|
|
Rehabilitation Services
|
|
|
Corporate
|
|
|
Consolidated
|
|
(In thousands)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
2011
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net revenue
|
|
$
|
223,678
|
|
|
$
|
43,268
|
|
|
$
|
|
|
|
$
|
266,946
|
|
Income (loss) from operations
|
|
|
20,660
|
|
|
|
4,387
|
|
|
|
(14,704
|
)
|
|
|
10,343
|
|
Operating margin
|
|
|
9.2
|
%
|
|
|
10.1
|
%
|
|
|
|
|
|
|
3.9
|
%
|
2010
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net revenue
|
|
$
|
219,151
|
|
|
$
|
31,851
|
|
|
$
|
|
|
|
$
|
251,002
|
|
Income (loss) from operations
|
|
|
19,417
|
|
|
|
3,415
|
|
|
|
(12,082
|
)
|
|
|
10,750
|
|
Operating margin
|
|
|
8.9
|
%
|
|
|
10.7
|
%
|
|
|
|
|
|
|
4.3
|
%
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Post-Acute Specialty
|
|
|
|
|
|
|
|
Six Months Ended March 31,
|
|
Human Services
|
|
|
Rehabilitation Services
|
|
|
Corporate
|
|
|
Consolidated
|
|
(in thousands)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
2011
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net revenue
|
|
$
|
446,906
|
|
|
$
|
86,567
|
|
|
$
|
|
|
|
$
|
533,473
|
|
Income (loss) from operations
|
|
|
40,954
|
|
|
|
9,245
|
|
|
|
(28,984
|
)
|
|
|
21,215
|
|
Operating margin
|
|
|
9.2
|
%
|
|
|
10.7
|
%
|
|
|
|
|
|
|
4.0
|
%
|
2010
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net revenue
|
|
$
|
440,521
|
|
|
$
|
60,487
|
|
|
$
|
|
|
|
$
|
501,008
|
|
Income (loss) from operations
|
|
|
39,508
|
|
|
|
6,546
|
|
|
|
(24,057
|
)
|
|
|
21,997
|
|
Operating margin
|
|
|
9.0
|
%
|
|
|
10.8
|
%
|
|
|
|
|
|
|
4.4
|
%
|
19
Three months ended March 31, 2011 compared to three months ended March 31, 2010
Consolidated
Consolidated revenue for the three months ended March 31, 2011 increased by $15.9 million, or
6.4%, compared to revenue for the three months ended March 31, 2010. Revenue increased $11.3 million
related to acquisitions that closed during and after the three months ended March 31, 2010 and $4.6
million related to organic growth, including growth related to new programs. Modest organic growth
was achieved despite the negative impact of rate reductions in several states, including Indiana
(5%), Oregon (multiple cuts to I/DD day and residential services) and Wisconsin (individual, client-specific adjustments).
Consolidated income from operations decreased from $10.8 million or 4.3% of revenue, for the
three months ended March 31, 2010 to $10.3 million or 3.9% of revenue, for the three months ended
March 31, 2011.
Our operating margin was negatively impacted by rate reductions in several states, including
Indiana, Oregon and Wisconsin, as well as an increased expense relating to professional and general and
employment practices liability. During the three months ended March 31, 2011, we incurred higher
reserves against higher self-insured retentions and paid higher premiums for professional and
general liability policies, which resulted in an additional $1.5 million of expense. We also
incurred higher reserves for employment practices liability claims, which resulted in an additional
$1.3 million of expense during the current quarter.
Also during the three months ended March 31, 2011, we recorded $2.4 million for the payment of
one-time discretionary bonuses in recognition of individuals contributions to enabling the
successful closing of the refinancing transactions described in Note 4 (the transaction
recognition bonuses).
The transaction recognition bonuses are included in general and administrative expense in the accompanying consolidated
statement of operations.
Our occupancy expense increased by $1.5 million, almost all of it related
to acquisitions in our Post-Acute Specialty Rehabilitation Services segment, and we recorded $0.8
million expense related to a restructuring of corporate and certain field functions.
The decrease in income from operations was partially offset by an expense reduction from our
on-going cost containment efforts.
Depreciation and amortization expense increased $0.8 million during the three months ended
March 31, 2011 due to an increase in amortizable assets resulting from acquisitions in the period.
During the three months ended March 31, 2011, we recorded
an additional $19.3 million of
expenses related to
the refinancing transactions including (i) $10.8 million related to the tender premium and consent fees paid in connection
with the repurchase of the senior subordinated notes, (ii) $7.9 million related to the acceleration of deferred financing
costs related to the prior indebtedness and (iii) $0.6 million related to transaction costs. These expenses are recorded
on our consolidated statements of operations as Extinguishment of debt.
During the three months ended March 31, 2011, we recorded a $3.0 million gain as NMH Holdings, Inc. (NMH Holdings)
repurchased the NMH Holdings notes (which we purchased at a discount) from us at a premium.
The gain was recorded on our statements of operations as Gain from available for sale investment security.
Interest expense increased by $2.6
million
primarily due to an additional $3.6 million of expense related to our new debt structure partially offset by the
payment of lower variable rate interest during the three months ended March 31, 2011 compared to the three months ended March 31, 2010 due to the expiration of swap
contracts at a higher fixed rate of interest during the six months ended September 30, 2010.
Human Services
Human Services revenue for the three months ended March 31, 2011 increased by $4.5 million, or
2.1%, compared to the three months ended March 31, 2010. Revenue increased $2.3 million related to
organic growth, including growth related to new programs, which increased despite the negative
impact of rate reductions in several states, including Indiana (5%), Oregon (multiple cuts to I/DD day and residential services) and Wisconsin (individual,
client-specific adjustments). Revenue also increased $2.2 million related to acquisitions that
closed during and after the three months ended March 31, 2010.
Income from operations increased from $19.4 million or 8.9% of revenue, during the three
months ended March 31, 2010 to $20.7 million or 9.2% of revenue during the three months ended March
31, 2011. Income from operations was positively impacted by increased revenue and expense
reduction from our ongoing cost-containment efforts. Partially offsetting this was an increase in
expense related to our higher self-insured retentions and premiums for professional and general
liability policies as well as an increase in our employment practices liability reserves due to
development of claims. During the three months ended March 31, 2011, we recorded an additional
$1.2 million related to professional and general liability expense and an additional $1.2 million
related to employment practices liability. Operating margin was also negatively impacted by rate
reductions in several states, including Indiana, Oregon and Wisconsin.
Post-Acute Specialty Rehabilitation Services
Post-Acute Specialty Rehabilitation Services revenue for the three months ended March 31, 2011
increased by $11.4 million, or 35.8%, compared to the three months ended March 31, 2010. This
increase was due to growth of $9.1 million related to acquisitions that closed during and after the
three months ended March 31, 2010 and $2.3 million related to organic growth, including growth
related to new programs.
20
Income from operations increased from $3.4 million for the three months ended March 31, 2010
to $4.4 million for the three months ended March 31, 2011, while operating margin decreased from
10.7% to 10.1% for the same period. Our margin was negatively impacted by a $1.4 million increase
in occupancy expense as a result of acquisitions.
Corporate
Total
corporate expenses increased by $2.6 million from the three months ended March 31, 2010
to $14.7 million for the three months ended March 31, 2011. During the three months ended March 31,
2011, we recorded an additional $2.4 million related to the payment of transaction recognition
bonuses and $0.8 million related to restructuring of corporate and certain field
functions.
Six months ended March 31, 2011 compared to six months ended March 31, 2010
Consolidated
Consolidated revenue for the six months ended March 31, 2011 increased by $32.5 million, or
6.5%, compared to revenue for the six months ended March 31, 2010. Revenue increased $25.8 million
related to acquisitions that closed during and after fiscal 2010 and $6.7 million related to
organic growth, including growth related to new programs. Modest
organic growth was achieved despite the
negative impact of rate reductions in several states, including
Indiana (5%), Oregon (multiple rate
cuts to I/DD day and residential services) and Wisconsin
(individual, client-specific adjustments).
Consolidated income from operations decreased from $22.0 million or 4.4% of revenue, for the
six months ended March 31, 2010 to $21.2 million or 4.0% of revenue, for the six months ended March
31, 2011.
Our operating margin was negatively
impacted by rate reductions in several states, including
Indiana, Oregon and Wisconsin, as well as an increased expense relating to professional and general and
employment practices liability. During the six months ended March 31, 2011, we incurred higher
reserves against higher self-insured retentions and paid higher premiums for professional and
general liability policies, which resulted in an additional $3.2 million of expense. We also
incurred higher reserves for employment practices liability claims, which resulted in an additional
$1.3 million of expense during the six months ended March 31, 2011.
Also during the six months ended March 31, 2011, we recorded $3.3 million related to an
increase in occupancy expense primarily related to acquisitions in our Post-Acute Specialty
Rehabilitation Services segment and $2.4 million related to the payment of transaction recognition
bonuses. The transaction recognition bonuses are included in general
and administrative expense in the accompanying consolidated statement
of operations. In addition, we recorded $1.6 million related to restructuring of corporate
and certain field functions, an additional $0.5 million in consulting and legal costs related to a
transaction which was not completed and $0.3 million of expense related to a contingent earn-out
adjustment from the Springbrook acquisition.
The decrease in income from operations was partially offset by an expense reduction from our
on-going cost containment efforts.
Depreciation and amortization expense increased $1.6 million during the six months ended March
31, 2011 due to an increase in amortizable assets resulting from acquisitions in the period.
During
the six months ended March 31, 2011, we recorded an additional
$19.3 million of expenses
related to
the refinancing transactions including (i) $10.8 million related to the tender premium and consent fees
paid in connection with the repurchase of the senior subordinated notes, (ii) $7.9 million related to the
acceleration of deferred financing costs related to the prior indebtedness and (iii) $0.6 million related to
transaction costs. These expenses are recorded on our consolidated statements of operations as
Extinguishment of debt.
During the six months ended March 31, 2011, we recorded a $3.0 million gain as NMH Holdings
repurchased the NMH Holdings notes (which we purchased at a discount) from us at a premium. The gain was
recorded on our statements of operations as Gain from available for
sale investment security.
Our interest expense decreased by $1.1 million during the six months ended March 31, 2011
due to the payment of lower variable rate interest during the six
months ended March 31, 2011 compared to the six months ended March
31, 2010 due to
the expiration of swap contracts at a higher fixed rate of interest
during the six months ended September 30,
2010.
Human Services
Human Services revenue for the six months ended March 31, 2011 increased by $6.4 million, or
1.4%, compared to the six months ended March 31, 2010. Revenue increased $5.3 million related to
acquisitions that closed during and after fiscal 2010 and $1.1 million related to organic growth,
including growth related to new programs. Modest organic growth was
achieved despite the negative impact of
rate reductions in several states, including Indiana (5%), Oregon (multiple rate cuts to I/DD
day and residential services) and Wisconsin (individual,
client-specific adjustments).
21
Income from operations increased from $39.5 million or 9.0% of revenue, during the six months
ended March 31, 2010 to $41.0 million or 9.2% of revenue during the six months ended March 31,
2011. Income from operations was positively impacted by increased revenue and expense reduction
from our ongoing cost-containment efforts. Partially offsetting this was an increase in expense
related to our higher self-insured retentions and premiums for professional and general liability
policies as well as an increase in our employment practices liability reserves due to development
of claims. During the six months ended March 31, 2011, we recorded an additional $2.3 million
related to professional and general liability expense and an additional $1.2 million related to
employment practices liability. Operating margin was also negatively impacted by rate reductions
in several states, including Indiana, Oregon and Wisconsin.
Post-Acute Specialty Rehabilitation Services
Post-Acute Specialty Rehabilitation Services revenue for the six months ended March 31, 2011
increased by $26.1 million, or 43.1%, compared to the six months ended March 31, 2010. This
increase was due to growth of $20.5 million related to acquisitions that closed during and after
fiscal 2010 and $5.6 million related to organic growth, including growth related to new programs.
Income from operations increased from $6.5 million for the six months ended March 31, 2010 to
$9.2 million for the six months ended March 31, 2011, while operating margin decreased slightly
from 10.8% to 10.7% for the same period. Our margin was negatively impacted by a $3.1 million
increase in occupancy expense as a result of acquisitions.
Corporate
Total
corporate expenses increased by $4.9 million from the six months ended March 31, 2010 to
$29.0 million for the six months ended March 31, 2011. During the six months ended March 31, 2011,
we recorded an additional $2.4 million related to the payment of transaction recognition bonuses,
$1.6 million related to restructuring of corporate and certain field functions, an
additional $0.5 million in consulting and legal costs related to a transaction which was not
completed and $0.3 million of expense related to a contingent earn-out adjustment from the
Springbrook acquisition.
Liquidity and Capital Resources
Our principal uses of cash are to meet working capital requirements, fund debt obligations and
finance capital expenditures and acquisitions. Cash flows from operations have historically been
sufficient to meet these cash requirements. Our principal sources of funds are cash flows from
operating activities and available borrowings under our senior revolver (as defined below).
Operating activities
Cash
flows provided by operating activities for the six months ended March 31, 2011 were $17.7 million compared to $31.8 million for the six months ended March 31,
2010. The decrease was due to (i) a decrease in operating income primarily from the refinancing transactions including $10.8 million related to the tender premium and
consent fees paid in connection with the repurchase of the senior subordinated notes and
(ii) an increase in working capital due to the timing of vendor
payments and tax payments. Excluding the impact to operating income
from the refinancing related items, cash flow from operations would
be $28.5 million for the six months ended March 31, 2011. Partially offsetting the increase in working capital was a decrease in accounts receivable as our days sales
outstanding decreased two days from 47 days at September 30, 2010 to 45 days at March 31, 2011.
Investing activities
Net
cash used in investing activities was $62.0 million for the six months ended March 31,
2011 compared to $39.8 million for the six months ended March 31, 2010.
Cash paid for acquisitions was $3.4 million for the six months ended March 31, 2011 and
included cash paid for five acquisitions, including New Start Homes, ViaQuest, Phoenix Homes,
SunnySide Homes and TheraCare. Cash paid for acquisitions for the six months ended March 31, 2010
was $29.2 million, primarily reflecting the acquisitions of NeuroRestorative for $17.0 million and
Springbrook for $6.3 million. In addition to NeuroRestorative and Springbrook, we acquired Villages
for total consideration of $6.0 million. Cash paid for property and equipment for the six months
ended March 31, 2011 was $9.2 million, or 1.7% of revenue and cash paid for property and equipment
for the six months ended March 31, 2010 was $9.1 million, or 1.8% of revenue.
22
In addition, during the six months ended March 31, 2011, our restricted cash balance increased to $50.8 million primarily due to the $50.0 million which was deposited in a cash collateral
account in support of issuance of letters of credit under the institutional letter of credit
facility.
Financing activities
Net cash provided by financing activities was $30.4 million for the six months ended March 31,
2011 compared to $1.9 million used in financing activities for the six months ended March 31, 2010.
Net cash provided by financing activities for the six months ended March 31, 2011 include the
following items related to the refinancing transaction:
|
|
|
|
|
|
|
(In millions)
|
|
Repayment of long-term debt
|
|
$
|
(504.4
|
)
|
Proceeds from the issuance of long-term debt
|
|
|
761.7
|
|
Dividend to Parent
|
|
|
(206.4
|
)
|
Payments of deferred debt financing costs
|
|
|
(15.5
|
)
|
See -Debt and Refinancing Arrangements for a description of the refinancing transactions.
In addition to the refinancing related items, net cash used in financing activities for the
six months ended March 31, 2011 included an earn-out payment of $3.3 million for the IFCS
acquisition, which we acquired in fiscal 2009. Also during the six months ended March 31, 2011, we
paid a dividend of $0.6 million to Parent, which used the proceeds of the dividend to make a
distribution to NMH Holdings, which in turn used the proceeds of the distribution to pay a dividend
of $0.6 million to NMH Investment, LLC (NMH Investment). NMH Investment used the proceeds of the dividend to repurchase
its preferred and common equity units from certain employees upon or after their departures.
Our principal sources of funds are cash flows from operating activities and available
borrowings under our senior revolver. We believe that these funds will provide sufficient liquidity
and capital resources to meet our financial obligations for the next twelve months, including
scheduled principal and interest payments, as well as to provide funds for working capital,
acquisitions, capital expenditures and other needs. No assurance can be given, however, that this
will be the case.
Debt and Financing Arrangements
On February 9, 2011, we completed refinancing transactions, which included entering into a
senior credit agreement (the senior credit agreement) for senior secured credit facilities (the
senior secured credit facilities) and issuing $250.0 million in aggregate principal amount of
12.50% senior notes due 2018 (the senior notes). We used the net proceeds from the senior secured
credit facilities ($520.9 million) and the senior notes ($238.7 million), together with cash on hand, to: (i) repay all amounts owing
under our old senior secured credit facilities and our mortgage facility; (ii) purchase $171.9
million of our senior subordinated notes; (iii) pay $9.6 million to NMH Holdings related to a tax
sharing arrangement; (iv) declare a $219.7 million dividend to Parent, which in turn made a
distribution to NMH Holdings, which used $206.4 million cash proceeds of the distribution to repurchase $210.9
million principal amount of the NMH Holdings notes at a premium,
including $13.5 million principal amount of NMH Holdings notes we held as an investment; and (v) pay related fees and expenses.
Senior Secured Credit Facilities
We entered into senior secured credit facilities, consisting of a (i) six-year $530.0 million
term loan facility (the term loan), of which $50.0 million was deposited in a cash collateral
account in support of issuance of letters of credit under an institutional letter of credit
facility (the institutional letter of credit facility) and a (ii) $75.0 million five-year senior
secured revolving credit facility (the senior revolver). All of our obligations under the senior
secured credit facilities are guaranteed by Parent and certain of our existing subsidiaries. The
obligations under the senior secured credit facilities are secured by a pledge of 100% of our
capital stock and the capital stock of domestic subsidiaries owned by us and any other domestic
subsidiary guarantor and 65% of the capital stock of any first tier foreign subsidiaries, and a
security interest in substantially all of our tangible and intangible assets and the tangible and
intangible assets of Parent and each guarantor.
At our option, we may add one or more new term loan facilities or increase the commitments
under the senior revolver (collectively, the incremental borrowings) in an aggregate amount of up
to $125.0 million so long as certain conditions, including a consolidated leverage ratio (as
defined in the senior credit agreement) of not more than 6.00 to 1.00 on a pro forma basis, are
satisfied.
The covenants in the indenture governing the senior notes effectively limit the amount of
incremental borrowings that we may incur to not more than $75.0 million.
23
The senior credit agreement contains a number of covenants that, among other things, restrict,
subject to certain exceptions, our ability to: (i) incur additional indebtedness; (ii) create liens
on assets; (iii) engage in mergers or consolidations; (iv) sell assets; (v) pay dividends and
distributions or repurchase our capital stock; (vi) make capital expenditures; (vii) make
investments, loans or advances; (viii) repay certain indebtedness; (ix) engage in certain
transactions with affiliates; (x) enter into sale and leaseback transactions; (xi) amend material
agreements governing certain of our indebtedness; (xii) change our lines of business; (xiii) make
certain acquisitions; (xiv) change the status of NMH Holdings as a passive holding company; and
(xv) limitations on the letter of credit cash collateral account. If we withdraw any of the $50.0
million from the cash collateral account supporting the issuance of letters of credit, we must use
the cash to either prepay the term loan facility or to secure any other obligations under the
senior secured credit facilities in a manner reasonably satisfactory to the administrative agent.
The senior credit agreement contains customary affirmative covenants and events of default. The
senior credit agreement also requires us to maintain certain financial covenants, as described
under Covenants below.
Term loan
The $530.0 million term loan was issued at a price equal to 98.5% of its face value and
amortizes one percent per year, paid quarterly, with the remaining balance payable at maturity. The
senior credit agreement also includes a provision for the prepayment of a portion of the
outstanding term loan amounts beginning in fiscal 2011 equal to an amount ranging from 0 to 50% of
a calculated amount, depending on our leverage ratio, if we generate certain levels of cash flow,
sell certain assets or incur other indebtedness, subject to certain exceptions. We are required to
repay the term loan portion of the senior credit facilities in quarterly principal installments of
0.25% of the principal amount, with the balance payable at maturity. The variable interest rate on
the term loan bears interest at (i) a rate equal to the greater of (a) the prime rate (b) the
federal funds rate plus 1/2 of 1% and (c) the Eurodollar rate for an interest period of one-month
beginning on such day plus 100 basis points, plus 4.25%; or (ii) the Eurodollar rate (provided that
the rate shall not be less than 1.75% per annum), plus 5.25%, at our option. At March 31, 2011, the
variable interest rate on the term loan was 7.0%.
Senior revolver
During the three months ended March 31, 2011, we borrowed $6.9 million under the senior
revolver and repaid the borrowings in the same period. We had $75.0 million of availability under
the senior revolver at March 31, 2011 and had $36.5 million of letters of credit issued under the
institutional letter of credit facility primarily related to our workers compensation insurance
coverage. Letters of credit can be issued under our institutional letter of credit facility up to
the $50.0 million credit collateral account. Letters of credit in excess of that amount reduce
availability under our senior revolver. The interest rates for any borrowings under the senior
revolver are the same as outlined for the term loan.
The senior revolver includes borrowing capacity available for letters of credit and for
borrowings on same-day notice, referred to as the swingline loans. Any issuance of letters of
credit or making of a swingline loan will reduce the amount available under the senior revolver.
Senior Notes
On February 9, 2011, we issued $250.0 million in aggregate principal amount of the senior
notes at a price equal to 97.737% of their face value. The senior notes mature on February 15, 2018
and bear interest at a rate of 12.50% per annum, payable semi-annually on February 15 and August 15
of each year, beginning on August 15, 2011. The senior notes are our unsecured obligations and are
fully and unconditionally guaranteed, jointly and severally, on a senior unsecured basis by certain
of our existing subsidiaries.
We may redeem the senior notes at our option, in whole or part, at any time prior to February
15, 2014, at a price equal to 100% of the principal amount of the senior notes redeemed plus
accrued and unpaid interest to the redemption date and plus an applicable premium. We may redeem
the senior notes, in whole or in part, on or after February 15, 2014, at the redemption prices set
forth in the indenture plus accrued and unpaid interest to the redemption date. At any time on or
before February 15, 2014, we may choose to redeem up to 35% of the aggregate principal amount of
the senior notes at a redemption price equal to 112.5% of the principal amount thereof, plus
accrued and unpaid interest to the redemption date, with the net proceeds of one or more equity
offerings, so long as at least 65% of the original aggregate principal amount of the senior notes
remain outstanding after each such redemption.
24
Covenants
The senior credit agreement and the indenture governing the senior notes contain negative
financial and non-financial covenants, including, among other things, limitations on our ability to
incur additional debt, transfer or sell assets, pay dividends, redeem stock or make other
distributions or investments, and engage in certain transactions with affiliates. We were in
compliance with these covenants as of March 31, 2011. In addition, in the case of the senior
credit agreement, we are required to maintain at the end of each fiscal quarter, commencing with
the quarter ending September 30, 2011, a consolidated leverage ratio of not more than 7.25 to 1.00.
This consolidated leverage ratio will step down over time, starting with the quarter ending
December 31, 2012. The consolidated leverage ratio is defined as the ratio of total debt, net of
cash and cash equivalents, to consolidated adjusted EBITDA, as defined in the senior credit
agreement, for the most recently completed four fiscal quarters. We are also required to maintain
at the end of each fiscal quarter, commencing with the quarter ending September 30, 2011, a
consolidated interest coverage ratio of at least 1.30 to 1.00. This interest coverage ratio will
step up over time, starting with the quarter ending March 31, 2012. The consolidated interest
coverage ratio is defined as the ratio of consolidated adjusted EBITDA to consolidated interest
expense, both as defined under the senior credit agreement, for the most recently completed four
fiscal quarters.
As of March 31, 2011, our consolidated leverage ratio was 6.06 to 1.00, as calculated in
accordance with the senior credit agreement and our consolidated interest coverage ratio was 1.64
to 1.00, as calculated in accordance with the senior credit agreement. As of March 31, 2011, total
debt, net of cash and cash equivalents, was $724.4 million. Under the senior credit agreement,
consolidated adjusted EBITDA is defined as net income before interest expense and interest income,
income taxes, depreciation and amortization, further adjusted to add back certain non-cash charges,
fees under the management agreement with our equity sponsor, proceeds of business insurance,
certain expenses incurred under indemnification or refunding provisions for acquisitions, certain
start-up losses, non-cash compensation expense, transaction bonuses, unusual or non-recurring
losses, charges, severance costs and relocation costs and deductions attributable to minority
interests, business optimization expenses and further adjusted to subtract unusual or non-recurring
income or gains, income tax credits to the extent not netted, non-cash income and interest income
and gains on interest rate hedges, and further adjusted for certain other items including EBITDA
and pro forma adjustments from acquired businesses and exclusion of discontinued operations.
Set forth below is a reconciliation of consolidated adjusted EBITDA, as calculated under the
credit agreement, to net loss for the most recently completed four fiscal quarters ended March 31,
2011:
|
|
|
|
|
|
|
(In thousands)
|
|
Net loss
|
|
$
|
(13,461
|
)
|
Loss from discontinued operations, net of tax
|
|
|
326
|
|
Benefit for income taxes
|
|
|
(5,197
|
)
|
Gain from available for sale investment security
|
|
|
(3,018
|
)
|
Interest income
|
|
|
(22
|
)
|
Interest income from related party
|
|
|
(1,660
|
)
|
Interest expense
|
|
|
45,582
|
|
Depreciation and amortization
|
|
|
59,233
|
|
Management fee of related party
|
|
|
1,300
|
|
Extinguishment of debt
|
|
|
19,278
|
|
Loss on disposal of assets
|
|
|
119
|
|
Stock based compensation
|
|
|
603
|
|
Acquisition costs
|
|
|
573
|
|
Change in fair value of contingent consideration
|
|
|
1,745
|
|
Claims made insurance liability
|
|
|
1,778
|
|
Predecessor company claims
|
|
|
766
|
|
Transaction recognition bonuses
|
|
|
2,362
|
|
Restructuring expense
|
|
|
1,797
|
|
Terminated transaction costs
|
|
|
1,976
|
|
Franchise taxes, transaction fees, costs, and expenses
|
|
|
308
|
|
Acquired EBITDA
|
|
|
3,267
|
|
Disposed EBITDA
|
|
|
95
|
|
Operating losses from new starts
|
|
|
1,785
|
|
|
|
|
|
Consolidated adjusted EBITDA per the senior credit agreement
|
|
$
|
119,535
|
|
|
|
|
|
25
Set forth below is an annualized calculation of consolidated interest expense as of March 31,
2011, as calculated under the credit agreement:
|
|
|
|
|
|
|
(In thousands)
|
|
Interest rate swap agreements
|
|
$
|
3,230
|
|
Unused line of credit
|
|
|
458
|
|
Senior term B loan
|
|
|
37,468
|
|
Letters of credit
|
|
|
92
|
|
Senior subordinated notes
|
|
|
31,716
|
|
Capital leases
|
|
|
38
|
|
Interest income
|
|
|
(23
|
)
|
|
|
|
|
Consolidated interest expense per the senior credit agreement
|
|
$
|
72,979
|
|
|
|
|
|
Beginning September 30, 2011, the consolidated leverage ratio and the consolidated interest
coverage ratios will be material components of the senior credit agreement and non-compliance with
these ratios could prevent us from borrowing under the senior revolver and would result in a
default under the senior credit agreement.
Contractual Commitments Summary
The following table summarizes our contractual obligations and commitments as of March 31,
2011:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Less Than
|
|
|
|
|
|
|
|
|
|
|
More Than
|
|
(In thousands)
|
|
Total
|
|
|
1 Year
|
|
|
1-3 Years
|
|
|
3-5 Years
|
|
|
5 Years
|
|
Long-term debt obligations (1)
|
|
$
|
780,000
|
|
|
$
|
5,300
|
|
|
$
|
10,600
|
|
|
$
|
10,600
|
|
|
$
|
753,500
|
|
Operating lease obligations (2)
|
|
|
139,102
|
|
|
|
38,821
|
|
|
|
51,459
|
|
|
|
28,873
|
|
|
|
19,949
|
|
Capital lease obligations
|
|
|
6,926
|
|
|
|
305
|
|
|
|
662
|
|
|
|
748
|
|
|
|
5,211
|
|
Contingent consideration
|
|
|
3,362
|
|
|
|
3,362
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Standby letters of credit
|
|
|
36,471
|
|
|
|
36,471
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total obligations and commitments (3)
|
|
$
|
965,861
|
|
|
$
|
84,259
|
|
|
$
|
62,721
|
|
|
$
|
40,221
|
|
|
$
|
778,660
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(1)
|
|
Does not include interest on long term debt.
|
|
(2)
|
|
Includes the fixed rent payable under the leases and does not include additional amounts,
such as taxes, that may be payable under the leases
|
|
(3)
|
|
The table above does not include $4.9 million of unrecognized tax benefits for uncertain tax
positions and $1.9 million of associated accrued interest and penalties. Due to the high
degree of uncertainty regarding the timing of potential future cash flows, we are unable to
reasonably estimate the amount and period in which these liabilities might be paid.
|
Off-Balance Sheet Arrangements
We do not have any off-balance sheet transactions or interests.
Critical Accounting Policies
Our discussion and analysis of our financial condition and results of operations are based
upon our consolidated financial statements, which have been prepared in accordance with generally
accepted accounting principles (GAAP). The preparation of financial statements in conformity with
GAAP requires the appropriate application of certain accounting policies, many of which require us
to make estimates and assumptions about future events and their impact on amounts reported in the
financial statements and related notes. Since future events and the impact of those events cannot
be determined with certainty, the actual results may differ from our estimates. These differences
could be material to the financial statements.
We believe our application of accounting policies, and the estimates inherently required
therein, are reasonable. These accounting policies and estimates are constantly reevaluated, and
adjustments are made when facts and circumstances dictate a change.
26
As of March 31, 2011, there has been no material change in our accounting policies or the
underlying assumptions or methodology used to fairly present our financial position, results of
operations and cash flows for the periods covered by this report. In addition, no triggering events
have come to our attention pursuant to our review of goodwill and long-lived assets that would
indicate impairment of these assets as of March 31, 2011.
For further discussion of our critical accounting policies see managements discussion and
analysis of financial condition and results of operations contained in our Form 10-K for the year
ended September 30, 2010.
Forward-Looking Statements
Some of the matters discussed in this report may constitute forward-looking statements
within the meaning of Section 27A of the Securities Act of 1933, as amended, and Section 21E of the
Securities Exchange Act of 1934, as amended (the Exchange Act).
These statements relate to future events or our future financial performance, and include
statements about our expectations for future periods with respect to demand for our services, the
political climate and budgetary environment, our expansion efforts and the impact of our recent
acquisitions, our plans for divestitures and investments in our infrastructure and business process
improvements, our margins and our liquidity. In some cases, you can identify forward-looking
statements by terminology such as may, will, should, expect, plan, anticipate,
believe, estimate, predict, potential or continue, the negative of such terms or other
comparable terminology. These statements are only predictions. Actual events or results may differ
materially.
The information in this report is not a complete description of our business or the risks
associated with our business. There can be no assurance that other factors will not affect the
accuracy of these forward-looking statements or that our actual results will not differ materially
from the results anticipated in such forward-looking statements. While it is impossible to identify
all such factors, factors that could cause actual results to differ materially from those estimated
by us include, but are not limited to, those factors or conditions described under Part II. Item
1A. Risk Factors in this report as well as the following:
|
|
|
changes in Medicaid funding or changes in budgetary priorities by state and local
governments;
|
|
|
|
|
changes in reimbursement rates, policies or payment practices by our payors;
|
|
|
|
|
our significant amount of debt, our ability to meet our debt service obligations and our
ability to incur additional debt;
|
|
|
|
|
current credit and financial market conditions;
|
|
|
|
|
changes in interest rates;
|
|
|
|
|
an increase in the number and nature of pending legal proceedings and the outcomes of
those proceedings;
|
|
|
|
|
an increase in our self-insured retentions and changes in the insurance market for
professional and general liability, workers compensation and automobile liability and our
claims history that affect our ability to obtain coverage at reasonable rates;
|
|
|
|
|
our ability to control operating costs and collect accounts receivable;
|
|
|
|
|
our ability to maintain, expand and renew existing services contracts and to obtain
additional contracts;
|
|
|
|
|
our ability to attract and retain experienced personnel, including members of our senior
management team;
|
|
|
|
|
our ability to acquire new licenses or to maintain our status as a licensed service
provider in certain jurisdictions;
|
|
|
|
|
government regulations and our ability to comply with such regulations;
|
|
|
|
|
our ability to establish and maintain relationships with government agencies and advocacy
groups;
|
|
|
|
|
increased or more effective competition;
|
|
|
|
|
successful integration of acquired businesses; and
|
|
|
|
|
the potential for conflict between the interests of our majority equity holder and those
of our debt holders.
|
27
Although we believe that the expectations reflected in the forward-looking statements are
reasonable, we cannot guarantee future results, levels of activity, performance or achievements.
Moreover, we do not assume responsibility for the accuracy and completeness of the forward-looking
statements. All written and oral forward-looking statements attributable to us or persons acting on
our behalf are expressly qualified in their entirety by the Risk Factors and other cautionary
statements included herein. We are under no duty to update any of the forward-looking statements
after the date of this report to conform such statements to actual results or to changes in our
expectations.
|
|
|
Item 3.
|
|
Quantitative and Qualitative Disclosures about Market Risk.
|
We are exposed to changes in interest rates as a result of our outstanding variable rate debt.
To reduce the interest rate exposure related to the variable debt, we entered into an interest
rate swap in a notional amount of $400.0 million effective March 31, 2011 and ending September 30,
2014. Under the terms of the swap, we receive from the counterparty a quarterly payment based on a
rate equal to the greater of 3-month LIBOR and 1.75% per annum, and we make payments to the
counterparty based on a fixed rate of 2.54650% per annum, in each case on the notional amount of
$400.0 million, settled on a net payment basis. Based on the applicable margin of 5.25% under our
term loan facility, this swap effectively fixes our cost of borrowing for $400.0 million of our
term loan debt at 7.7965% per annum for the term of the swap.
As a result of the interest rate swap, the variable rate debt outstanding was effectively
reduced from $530.0 million outstanding to $130.0 million outstanding as of March 31, 2011. The
variable rate debt outstanding relates to the term loan and the senior revolver, which bear
interest at (i) a rate equal to the greater of (a) the prime rate (b) the federal funds rate plus
1/2 of 1% and (c) the Eurodollar rate for an interest period of one-month beginning on such day
plus 100 basis points, plus 4.25%; or (ii) the Eurodollar rate (provided that the rate shall not be
less than 1.75% per annum), plus 5.25%, at our option. A 1% increase in the interest rate on our
floating rate debt would increase cash interest expense of the floating rate debt by approximately
$1.3 million per annum.
|
|
|
Item 4.
|
|
Controls and Procedures.
|
|
(a)
|
|
Evaluation of Disclosure Controls and Procedures
|
We maintain disclosure controls and procedures to ensure that information required to be
disclosed in reports filed or submitted under the Exchange Act is recorded, processed, summarized
and reported, within the time periods specified in the rules and forms of the SEC, and is
accumulated and communicated to management, including the Chief Executive Officer, the President
and the Chief Financial Officer, to allow for timely decisions regarding required disclosure. There
are inherent limitations to the effectiveness of any system of disclosure controls and procedures,
including the possibility of human error and the circumvention or overriding of the controls and
procedures. As of March 31, 2011, the end of the period covered by this Quarterly Report on Form
10-Q, our management, with the participation of our principal executive officers and principal
financial officer, has evaluated the effectiveness of our disclosure controls and procedures as
defined in Rules 13a-15(e) and 15d-15(e) of the Exchange Act. Based on that evaluation, our
principal executive officers and principal financial officer concluded that our disclosure controls
and procedures were effective as of March 31, 2011.
|
(b)
|
|
Changes in Internal Control over Financial Reporting
|
During the quarter ended March 31, 2011, we began to transition certain field billing and
accounts receivable functions into a centralized shared services center. This centralization is
expected to continue in a phased approach over the next several years. As part of this
centralization, as well as the continued implementation of our new billing and accounts receivable
system for additional business units, we continue to refine and optimize our new billing and
accounts receivable process and related system in a majority of our operations. This has affected,
and will continue to affect, the processes that impact our internal control over financial
reporting. We will continue to review the related controls and may take additional steps to ensure
that they remain effective.
Except for the continuing centralization and optimization of our billing and accounts
receivable process and related system, during the most recent fiscal quarter, there were no
significant changes in our internal control over financial reporting that have materially affected,
or are reasonably likely to materially affect, our internal control over financial reporting.
28
PART II. OTHER INFORMATION
|
|
|
Item 1.
|
|
Legal Proceedings.
|
We are in the health and human services business and, therefore, we have been and continue to
be subject to substantial claims alleging that we, our employees or our Mentors failed to provide
proper care for a client. We are also subject to claims by our clients, our employees, our Mentors
or community members against us for negligence, intentional misconduct or violation of applicable
laws. Included in our recent claims are claims alleging personal injury, assault, battery, abuse,
wrongful death and other charges. Regulatory agencies may initiate administrative proceedings
alleging that our programs, employees or agents violate statutes and regulations and seek to impose
monetary penalties on us. We could be required to incur significant costs to respond to regulatory
investigations or defend against civil lawsuits and, if we do not prevail, we could be required to
pay substantial amounts of money in damages, settlement amounts or penalties arising from these
legal proceedings.
We reserve for costs related to contingencies when a loss is probable and the amount is
reasonably estimable. While we believe our provision for legal contingencies is adequate, the
outcome of the legal proceedings is difficult to predict and we may settle legal claims or be
subject to judgments for amounts that differ from our estimates.
See Part I. Item 2. Managements Discussion and Analysis of Financial Condition and Results
of Operations and Part II. Item 1A. Risk Factors for additional information.
Reductions or changes in Medicaid funding or changes in budgetary priorities by the state and
local governments that pay for our services could have a material adverse effect on our revenue
and profitability.
We derive the vast majority of our revenue from contracts with state and local governments.
These governmental payors fund a significant portion of their payments to us through Medicaid, a
joint federal and state health insurance program through which state expenditures are matched by
federal funds typically ranging from 50% to approximately 76% of total costs, a number based
largely on a states per capita income. Our revenue, therefore, is determined by the level of
federal, state and local governmental spending for the services we provide. For the period from
October 1, 2008 through June 30, 2011, under the American Recovery and Reinvestment Act of 2009,
the federal government had temporarily increased its share of the costs. As a result, it is
providing state governments with more than $100 billion in federal Medicaid funding during this
period to help address state budget gaps caused by a steep decline in tax collections and
significantly increased Medicaid enrollment, among other factors, during the recent recessionary
period. Budgetary pressures, particularly during the recent recessionary period as well as other
economic, industry, political and other factors, could cause the federal and state governments to
limit spending, which could significantly reduce our revenue, referrals, margins and profitability
and adversely affect our growth strategy. Governmental agencies generally condition their contracts
with us upon a sufficient budgetary appropriation. If a government agency does not receive an
appropriation sufficient to cover its contractual obligations with us, it may terminate a contract
or defer or reduce our reimbursement. Furthermore, the termination of enhanced federal Medicaid
funding, scheduled for July 1, 2011, is expected to occur well before state revenues are projected
to return to pre-recessionary levels and is expected to significantly increase the budgetary
challenges confronting state governments for fiscal year 2012, which begins July 1, 2011 in most
states. In addition, there is risk that previously appropriated funds could be reduced through
subsequent legislation. The Patient Protection and Affordable Care Act of 2010 mandates certain
uses for Medicaid funds, which could have the effect of diverting those funds from the services we
provide. Many states in which we operate have been experiencing unprecedented budgetary deficits
and constraints and have implemented or are considering initiating service reductions, rate freezes
and/or rate reductions, including states such as Minnesota, California, Indiana and Arizona.
Similarly, programmatic changes such as conversions to managed care with related contract demands
regarding billing and services, unbundling of services, governmental efforts to increase consumer
autonomy and reduce provider oversight, coverage and other changes under state Medicaid plans, may
cause unanticipated costs and risks to our service delivery. The loss or reduction of or changes to
reimbursement under our contracts could have a material adverse effect on our business, financial
condition and operating results.
29
Reductions in reimbursement rates or failure to obtain increases in reimbursement rates could
adversely affect our revenue, cash flows and profitability.
Our revenue and operating profitability depend on our ability to maintain our existing
reimbursement levels and to obtain periodic increases in reimbursement rates to meet higher costs
and demand for more services. Ten percent of our revenue is derived from contracts based on a cost
reimbursement model where we are reimbursed for our services based on our costs plus an agreed-upon
margin. If we are not entitled to, do not receive or cannot negotiate increases in reimbursement
rates, or are forced to accept a
reduction in our reimbursement rates at approximately the same time as our costs of providing
services increase, including labor costs and rent, our margins and profitability could be adversely
affected. Changes in how federal and state government agencies operate reimbursement programs can
also affect our operating results and financial condition. Some states have, from time to time,
revised their rate-setting or methodologies in a manner that has resulted in rate decreases. In
some instances, changes in rate-setting methodologies have resulted in third-party payors
disallowing, in whole or in part, our requests for reimbursement. Any reduction in or the failure
to maintain or increase our reimbursement rates could have a material adverse effect on our
business, financial condition and results of operations. Changes in the manner in which state
agencies interpret program policies and procedures or review and audit billings and costs could
also adversely affect our business, financial condition and operating results and our ability to
meet obligations under our indebtedness.
Our level of indebtedness could adversely
affect our liquidity and ability to raise additional capital to fund
our operations, and it could limit our ability to react to changes in the economy or our industry.
We have a significant amount of indebtedness and substantial leverage. As of March 31, 2011, we had total indebtedness
of $786.9 million, no borrowings under our senior revolver and $75.0 million of availability under
our senior revolver. Interest on our indebtedness is payable entirely in cash, whereas as of
September 30, 2010, our total indebtedness was lower and our indirect parent, NMH Holdings,
paid interest on the NMH Holdings notes as PIK Interest. Our annualized interest expense as of March 31, 2011 is $73.0 million as compared to $43.2 million at September 30, 2010. As of March 31, 2011, our consolidated leverage
ratio was 6.06 to 1.00, as calculated in accordance with the senior credit agreement.
Our substantial degree of leverage could have important consequences, including the following:
|
|
|
it may significantly curtail our acquisitions program and may limit our ability to obtain additional debt or equity financing for working
capital, capital expenditures, debt service requirements, and general corporate
or other purposes;
|
|
|
|
|
a substantial portion of our cash flows from operations will be dedicated to the payment
of principal and interest on our indebtedness and will not be available for other purposes,
including our operations, future business opportunities and acquisitions and capital
expenditures;
|
|
|
|
|
the debt service requirements of our indebtedness could make it more difficult for us to
satisfy our indebtedness and contractual and commercial commitments;
|
|
|
|
|
interest rates on the portion of our variable interest rate borrowings under the senior
secured credit facilities that have not been hedged may increase;
|
|
|
|
|
it may limit our ability to adjust to changing market conditions and place us at a
competitive disadvantage compared to our competitors that have less debt and a lower degree
of leverage;
|
|
|
|
|
we may be vulnerable if the current downturn in general economic conditions continues or
if there is a downturn in our business, or we may be unable to carry out activities that are
important to our growth; and
|
|
|
|
|
it may prevent us from raising the funds necessary to repurchase senior subordinated
notes tendered to us if there is a change of control, which would constitute a default under
the senior credit agreement governing our senior secured credit facilities.
|
Subject to restrictions in the indenture governing our senior notes and the senior credit
agreement, we may be able to incur more debt in the future, which may intensify the risks described
in this risk factor. All of the borrowings under the senior secured credit facilities are secured
by substantially all of the assets of the Company and its subsidiaries.
In addition to our high level of indebtedness, we have significant rental obligations under
our operating leases for our group homes, other service facilities and administrative offices. For
the three and six months ended March 31, 2011, our aggregate rental payments for these leases,
including taxes and operating expenses, were $11.9 million and $23.6 million, respectively. These
obligations could further increase the risks described above.
Current credit and economic conditions could have a material adverse effect on our cash flows,
liquidity and financial condition.
Due to the general tightening of the credit markets over the last several years, our
government payors or other counterparties that owe us money, such as counterparties to swap contracts, could be delayed in obtaining, or may
not be able to obtain, necessary funding and/or financing to meet their cash-flow needs. Moreover,
tax revenue continues to be down in many jurisdictions due to the economic recession and high rates
of unemployment and government payors may not be able to pay us for our services until they collect
sufficient tax revenue. Delays in payment could have a material adverse effect on our cash flows,
liquidity and financial condition. In addition, in the event that our payors or other
counterparties are financially unstable or delay payments to us, our financial condition could be further impaired if we are
unable to borrow additional funds under our senior credit agreement to finance our operations.
30
Our variable cost structure is directly related to our labor costs, which may be adversely
affected by labor shortages, a deterioration in labor relations or increased unionization
activities.
Our variable cost structure and operating profitability are directly related to our labor
costs. Labor costs may be adversely affected by a variety of factors, including a limited supply of
qualified personnel in any geographic area, local competitive forces, the ineffective utilization
of our labor force, increases in minimum wages, health care costs and other personnel costs, and
adverse changes in client service models. We typically cannot recover
our increased labor costs from payors and must absorb them ourselves. We have incurred higher labor costs in certain markets
from time to time because of difficulty in hiring qualified direct service staff. These higher
labor costs have resulted from increased wages and overtime and the costs associated with
recruitment and retention, training programs and use of temporary staffing personnel. In part to
help with the challenge of recruiting and retaining direct care employees, we offer these employees
a benefits package that includes paid time off, health insurance, dental insurance, vision
coverage, life insurance and a 401(k) plan, and these costs can be significant. In addition, The
Patient Protection and Affordable Care Act signed into law on March 23, 2010 imposed and will
continue to impose new mandates on employers beginning in January 2011. Given the composition of
our workforce, these mandates could be material to our costs, and we are studying the potential
impact of these mandates.
Although our employees are generally not unionized, we recently acquired a business in New
Jersey with fifty employees who are represented by a labor union. Future unionization activities
could result in an increase of our labor and other costs. The President and the National Labor
Relations Board may take regulatory and other action that could result in increased unionization
activities and make it easier for employees to join unions. We may not be able to negotiate labor
agreements on satisfactory terms with any future labor unions. If employees covered by a collective
bargaining agreement were to engage in a strike, work stoppage or other slowdown, we could
experience a disruption of our operations and/or higher ongoing labor costs, which could adversely
affect our business, financial condition and results of operations.
Covenants in our debt agreements restrict our business in many ways.
The senior credit agreement governing the senior secured credit facilities and the indenture
governing the senior notes contain various covenants that limit our ability and/or our
subsidiaries ability to, among other things:
|
|
|
incur additional debt or issue certain preferred shares;
|
|
|
|
|
pay dividends on or make distributions in respect of capital stock or make other
restricted payments;
|
|
|
|
|
make certain investments;
|
|
|
|
|
sell certain assets;
|
|
|
|
|
create liens on certain assets to secure debt;
|
|
|
|
|
enter into agreements that restrict dividends from subsidiaries;
|
|
|
|
|
consolidate, merge, sell or otherwise dispose of all or substantially all of our assets;
and
|
|
|
|
|
enter into certain transactions with our affiliates.
|
The senior credit agreement governing the senior secured credit facilities also contains
restrictive covenants and requires the Company and its subsidiaries to maintain specified financial
ratios and satisfy other financial condition tests. Our ability to meet those financial ratios and
tests may be affected by events beyond our control, and we cannot assure you that we will meet
those tests. The breach of any of these covenants or financial ratios could result in a default
under the senior secured credit facilities and the lenders could elect to declare all amounts
borrowed there under, together with accrued interest, to be due and payable and could proceed
against the collateral securing that indebtedness.
31
The nature of our operations could subject us to substantial claims, litigation and governmental
investigations.
We are in the health and human services business and, therefore, we have been and continue to
be subject to substantial claims alleging that we, our employees or our Mentors failed to provide
proper care for a client. We are also subject to claims by our clients, our employees, our Mentors
or community members against us for negligence, intentional misconduct or violation of applicable
laws.
Included in our recent claims are claims alleging personal injury, assault, battery, abuse,
wrongful death and other charges, and our claims for professional and general liability have
increased sharply in recent years. Regulatory agencies may initiate administrative proceedings
alleging that our programs, employees or agents violate statutes and regulations and seek to impose
monetary penalties on us. We could be required to incur significant costs to respond to regulatory
investigations or defend against civil lawsuits and, if we do not prevail, we could be required to
pay substantial amounts of money in damages, settlement amounts or penalties arising from these
legal proceedings.
A litigation award excluded by, or in excess of, our third-party insurance limits and
self-insurance reserves could have a material adverse impact on our operations and cash flow and
could adversely impact our ability to continue to purchase appropriate liability insurance. Even if
we are successful in our defense, civil lawsuits or regulatory proceedings could also irreparably
damage our reputation.
We also are subject to potential lawsuits under the False Claims Act and other federal and
state whistleblower statutes designed to combat fraud and abuse in the health care industry. These
lawsuits can involve significant monetary awards and bounties to private plaintiffs who
successfully bring these suits. If we are found to have violated the False Claims Act, we could be
excluded from participation in Medicaid and other federal healthcare programs. The Patient
Protection and Affordable Care Act provides a mandate for more vigorous and widespread enforcement
activity.
Finally, we are also subject to employee-related claims under state and federal law, including
claims for discrimination, wrongful discharge or retaliation; claims for wage and hour violations
under the Fair Labor Standards Act or state wage and hour laws; and novel intentional tort claims.
Our financial results could be adversely affected if claims against us are successful, to the
extent we must make payments under our self-insured retentions, or if such claims are not covered
by our applicable insurance or if the costs of our insurance coverage increase.
We have been and continue to be subject to substantial claims against our professional and
general liability and automobile liability insurance. Any claims, if successful, could result in
substantial damage awards which might require us to make payments under our self-insured
retentions. We had historically self-insured amounts of up to $1.0 million per claim and up to $2.0
million in the aggregate, but as of October 1, 2010, we are self-insured for $2.0 million per claim
and $8.0 million in the aggregate, and for $500,000 per claim in excess of the aggregate. An award
may exceed the limits of any applicable insurance coverage, and awards for punitive damages may be
excluded from our insurance policies either contractually or by operation of state law. In
addition, our insurance does not cover all potential liabilities including, for example, those
arising from employment practice claims, governmental fines and penalties. As a result, we may
become responsible for substantial damage awards that are uninsured.
Insurance against professional and general liability and automobile liability can be
expensive. Our insurance premiums have increased and may increase in the near future. Insurance
rates vary from state to state, by type and by other factors. The rising costs of insurance
premiums, as well as successful claims against us, could have a material adverse effect on our
financial position and results of operations.
It is also possible that our liability and other insurance coverage will not continue to be
available at acceptable costs or on favorable terms.
If payments for claims exceed actuarially determined estimates, are not covered by insurance,
or our insurers fail to meet their obligations, our results of operations and financial position
could be adversely affected.
Because a substantial portion of our indebtedness bears interest at rates that fluctuate with
changes in certain prevailing short-term interest rates, we are vulnerable to interest rate
increases.
A portion of our indebtedness, including borrowings under the senior revolver and borrowings
under the term loan facility for which we have not hedged our interest rate exposure
under an interest rate swap agreement, bears interest at rates that fluctuate with changes in
certain short-term prevailing interest rates. If interest rates increase, our debt service
obligations on the variable rate indebtedness would increase even though the amount borrowed
remained the same.
As of March 31, 2011, we had $530.0 million of floating rate debt outstanding before giving
effect to the swap agreement. As a result of the interest rate swap agreement, the floating rate
debt has been effectively reduced to $130.0 million. A 1% increase in the
interest rate on our floating rate debt would increase cash interest expense of the floating
rate debt by approximately $1.3 million per annum. If interest
rates increase dramatically, the Company and its subsidiaries could be unable to service their debt.
32
The nature of services that we provide could subject us to significant workers compensation
related liability, some of which may not be fully reserved for.
We use a combination of insurance and self-insurance plans to provide for potential liability
for workers compensation claims. Because of our high ratio of employees per client, and because of
the inherent physical risk associated with the interaction of employees with our clients, many of
whom have intensive care needs, the potential for incidents giving rise to workers compensation
liability is relatively high.
We estimate liabilities associated with workers compensation risk and establish reserves each
quarter based on internal valuations, third-party actuarial advice, historical loss development
factors and other assumptions believed to be reasonable under the circumstances. Our results of
operations have been adversely impacted and may be adversely impacted in the future if actual
occurrences and claims exceed our assumptions and historical trends.
If any of the state and local government agencies with which we have contracts determines that we
have not complied with our contracts or have violated any applicable laws or regulations, our
revenue may decrease, we may be subject to fines or penalties and we may be required to
restructure our billing and collection methods.
We derive the vast majority of our revenue from state and local government agencies, and a
substantial portion of this revenue is state-funded with federal Medicaid matching dollars. If we
fail to comply with federal and state documentation, coding and billing rules, we could be subject
to criminal and/or civil penalties, loss of licenses and exclusion from the Medicaid programs,
which could harm us. In billing for our services to third-party payors, we must follow complex
documentation, coding and billing rules. These rules are based on federal and state laws, rules and
regulations, various government pronouncements, and on industry practice. Failure to follow these
rules could result in potential criminal or civil liability under the False Claims Act, under which
extensive financial penalties can be imposed. It could further result in criminal liability under
various federal and state criminal statutes. We annually submit a large volume of claims for
Medicaid and other payments and there can be no assurance that there have not been errors. The
rules are frequently vague and confusing and we cannot assure that governmental investigators,
private insurers or private whistleblowers will not challenge our practices. Such a challenge could
result in a material adverse effect on our business.
If any of the state and local government payors determine that we have not complied with our
contracts or have violated any applicable laws or regulations, our revenue may decrease, we may be
subject to fines or penalties and we may be required to restructure our billing and collection
methods. We are routinely subject to governmental reviews, audits and investigations to verify our
compliance with applicable laws and regulations. As a result of these reviews, audits and
investigations, these governmental payors may be entitled to, in their discretion:
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require us to refund amounts we have previously been paid;
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terminate or modify our existing contracts;
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suspend or prevent us from receiving new contracts or extending existing contracts;
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impose referral holds on us;
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impose fines, penalties or other sanctions on us; and
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reduce the amount we are paid under our existing contracts.
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As a result of past reviews and audits of our operations, we have been and are subject to some
of these actions from time to time. While we do not currently believe that our existing audit
proceedings will have a material adverse effect on our financial condition or significantly harm
our reputation, we cannot assure you that similar actions in the future will not do so. In
addition, such proceedings could have a material adverse impact on our results of operations in a
future reporting period.
33
In some states, we operate on a cost reimbursement model in which revenue is recognized at the
time costs are incurred. In these states, payors audit our historical costs on a regular basis, and
if it is determined that our historical costs are insufficient to justify our
rates, our rates may be reduced, or we may be required to return fees paid to us in prior
periods. In some cases we have experienced negative audit adjustments which are based on subjective
judgments of reasonableness, necessity or allocation of costs in our services provided to clients.
These adjustments are generally required to be negotiated as part of the overall audit resolution
and may result in paybacks to payors and adjustments of our rates. We cannot assure you that our
rates will be maintained, or that we will be able to keep all payments made to us, until an audit
of the relevant period is complete. Moreover, if we are required to restructure our billing and
collection methods, these changes could be disruptive to our operations and costly to implement.
Failure to comply with laws and regulations could have a material adverse effect on our business.
If we fail to establish and maintain relationships with state and local government agencies, we
may not be able to successfully procure or retain government-sponsored contracts, which could
negatively impact our revenue.
To facilitate our ability to procure or retain government-sponsored contracts, we rely in part
on establishing and maintaining relationships with officials of various government agencies. These
relationships enable us to maintain and renew existing contracts and obtain new contracts and
referrals. The effectiveness of our relationships may be reduced or eliminated with changes in the
personnel holding various government offices or staff positions. We also may lose key personnel who
have these relationships and such personnel are generally not subject to non-compete or
non-solicitation covenants. Any failure to establish, maintain or manage relationships with
government and agency personnel may hinder our ability to procure or retain government-sponsored
contracts, and could negatively impact our revenue.
Negative publicity or changes in public perception of our services may adversely affect our
ability to obtain new contracts and renew existing ones.
Our success in obtaining new contracts and renewals of our existing contracts depend upon
maintaining our reputation as a quality service provider among governmental authorities, advocacy
groups, families of our clients and the public. Negative publicity, changes in public perception,
legal proceedings and government investigations with respect to our operations could damage our
reputation and hinder our ability to retain contracts and obtain new contracts, and could reduce
referrals, increase government scrutiny and compliance or litigation costs, or generally discourage
clients from using our services. Any of these events could have a material adverse effect on our
business, financial condition and operating results.
We face substantial competition in attracting and retaining experienced personnel, and we may
be unable to maintain or grow our business if we cannot attract and retain qualified employees.
Our success depends to a significant degree on our ability to attract and retain qualified and
experienced human service and other professionals who possess the skills and experience necessary
to deliver quality services to our clients and manage our operations. We face competition for
certain categories of our employees, particularly service provider employees, based on the wages,
benefits and other working conditions we offer. Contractual requirements and client needs determine
the number, education and experience levels of human service professionals we hire. Our ability to
attract and retain employees with the requisite credentials, experience and skills depends on
several factors, including, but not limited to, our ability to offer competitive wages, benefits
and professional growth opportunities. The inability to attract and retain experienced personnel
could have a material adverse effect on our business.
We may not realize the anticipated benefits of any future acquisitions and we may experience
difficulties in integrating these acquisitions.
As part of our growth strategy, we intend to make acquisitions. Growing our business through
acquisitions involves risks because with any acquisition there is the possibility that:
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we may be unable to maintain and renew the contracts of the acquired business;
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unforeseen difficulties may arise in integrating the acquired operations, including
information systems and accounting controls;
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we may not achieve operating efficiencies, synergies, economies of scale and cost
reductions as expected;
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the business we acquire may not continue to generate income at the same historical levels
on which we based our acquisition decision;
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management may be distracted from overseeing existing operations by the need to integrate
the acquired business;
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we may acquire or assume unexpected liabilities or there may be other unanticipated
costs;
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we may encounter unanticipated regulatory risk;
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we may experience problems entering new markets or service lines in which we have limited
or no experience;
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we may fail to retain and assimilate key employees of the acquired business;
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we may finance the acquisition by incurring additional debt and further increase our
leverage ratios; and
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the culture of the acquired business may not match well with our culture.
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As a result of these risks, there can be no assurance that any future acquisition will be
successful or that it will not have a material adverse effect on our financial condition and
results of operations.
A loss of our status as a licensed service provider in any jurisdiction could result in the
termination of existing services and our inability to market our services in that jurisdiction.
We operate in numerous jurisdictions and are required to maintain licenses and certifications
in order to conduct our operations in each of them. Each state and local government has its own
regulations, which can be complicated, and each of our service lines can be regulated differently
within a particular jurisdiction. As a result, maintaining the necessary licenses and
certifications to conduct our operations can be cumbersome. Our licenses and certifications could
be suspended, revoked or terminated for a number of reasons, including:
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the failure by our employees or Mentors to properly care for clients;
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the failure to submit proper documentation to the applicable government agency, including
documentation supporting reimbursements for costs;
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the failure by our programs to abide by the applicable regulations relating to the
provision of human services; or
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the failure of our facilities to comply with the applicable building, health and safety
codes and ordinances.
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From time to time, some of our licenses or certifications, or those of our employees, are
temporarily placed on probationary status or suspended. If we lost our status as a licensed
provider of human services in any jurisdiction or any other required certification, we would be
unable to market our services in that jurisdiction, and the contracts under which we provide
services in that jurisdiction would be subject to termination. Moreover, such an event could
constitute a violation of provisions of contracts in other jurisdictions, resulting in other
contract, license or certification terminations. Any of these events could have a material adverse
effect on our operations.
We are subject to extensive governmental regulations, which require significant compliance
expenditures, and a failure to comply with these regulations could adversely affect our business.
We must comply with comprehensive government regulation of our business, including statutes,
regulations and policies governing the licensing of our facilities, the maintenance and management
of our work place for our employees, the quality of our service, the revenue we receive for our
services, and reimbursement for the cost of our services. Compliance with these laws, regulations
and policies is expensive, and if we fail to comply with these laws, regulations and policies, we
could lose contracts and the related revenue, thereby harming our financial results. State and
federal regulatory agencies have broad discretionary powers over the administration and enforcement
of laws and regulations that govern our operations. A material violation of a law or regulation
could subject us to fines and penalties and in some circumstances could disqualify some or all of
the facilities and programs under our control from future participation in Medicaid or other
government programs. The Health Insurance Portability and Accountability Act of 1996 (as amended,
HIPAA) and other federal and state data privacy and security laws, which require the
establishment of privacy standards for health care information storage, retrieval and dissemination
as well as electronic transmission and security standards, could result in potential penalties in
certain of our businesses if we fail to comply with these privacy and security standards.
35
Expenses incurred under governmental agency contracts for any of our services, as well as
management contracts with providers of record for such agencies, are subject to review by agencies
administering the contracts and services. Representatives of those agencies visit our group homes
to verify compliance with state and local regulations governing our home operations. A negative
outcome from any of these examinations could increase government scrutiny, increase compliance
costs or hinder our ability to obtain or retain contracts. Any of these events could have a
material adverse effect on our business, financial condition and operating results.
The federal anti-kickback law and non-self referral statute, and similar state statutes,
prohibit kickbacks, rebates and any other form of remuneration in return for referrals. Any
remuneration, direct or indirect, offered, paid, solicited, or received, in return for referrals of
patients or business for which payment may be made in whole or in part under Medicaid could be
considered a violation of law. The language of the anti-kickback law also prohibits payments made
to anyone to induce them to recommend purchasing, leasing, or ordering any goods, facility,
service, or item for which payment may be made in whole or in part by Medicaid. Criminal penalties
under the anti-kickback law include fines up to $25,000, imprisonment for up to 5 years, or both.
In addition, acts constituting a violation of the anti-kickback law may also lead to civil
penalties, such as fines, assessments and exclusion from participation in the Medicaid programs.
CMS employs Medicaid Integrity Contractors (MICs) to perform post-payment audits of Medicaid
claims and identify overpayments. Throughout 2011, we expect MIC audits will continue to expand. In
addition to MICs, several other contractors, including the state Medicaid agencies, have increased
their review activities.
Should we be found out of compliance with any of these laws, regulations or programs,
depending on the nature of the findings, our business, our financial position and our results of
operations could be materially adversely impacted.
If a federal or state agency asserts a different position or enacts new laws or regulations
regarding illegal payments under Medicaid or other governmental programs, we may be subject to
civil and criminal penalties, experience a significant reduction in our revenue or be excluded
from participation in Medicaid or other governmental programs.
Any change in interpretations or enforcement of existing or new laws and regulations could
subject our current business practices to allegations of impropriety or illegality, or could
require us to make changes in our homes, equipment, personnel, services, pricing or capital
expenditure programs, which could increase our operating expenses and have a material adverse
effect on our operations or reduce the demand for or profitability of our services.
We have identified material weaknesses in our internal control over financial reporting in prior
periods.
As reported in our Annual Report on Form 10-K for the fiscal year ended September 30, 2009, we
identified material weaknesses in our internal control over financial reporting relating to our
revenue and accounts receivable balances as of September 30, 2009, and management concluded that as
of that date, our internal control over financial reporting was not effective and, as a result, our
disclosure controls and procedures were not effective. We also reported material weaknesses as of
September 30, 2008, including a material weakness in controls to verify the existence of our fixed
asset balances. As a result of this material weakness, we identified errors during the quarter
ended June 30, 2009 which resulted in an adjustment to reduce property and equipment by $1.8
million. While we have taken action to remediate our identified material weaknesses and continue to
improve our internal controls, the decentralized nature of our operations and the manual nature of
many of our controls increases our risk of control deficiencies.
We did not experience similar material weaknesses in connection with our audit of fiscal 2010.
No evaluation can provide complete assurance that our internal controls will detect or uncover all
failures of persons within our company to disclose material information otherwise required to be
reported. The effectiveness of our controls and procedures could also be limited by simple errors
or faulty judgments. We may in the future identify material weaknesses or significant deficiencies
in connection with the continuing implementation of our billing and accounts receivable system and
the consolidation of our cash disbursement and accounts receivable functions at one centralized
location. As we introduce new processes and people into our accounting systems, our risk of
controls deficiencies and weaknesses may temporarily increase. In addition, if we continue to make
acquisitions, as we expect to, the challenges involved in implementing appropriate internal
controls will increase and will require that we continue to improve our internal controls. Any
future material weaknesses in internal control over financial reporting could result in material
misstatements in our financial statements. Moreover, any future disclosures of additional material
weaknesses, or errors as a result of those weaknesses, could result in a negative reaction in the
financial markets if there is a loss of confidence in the reliability of our financial reporting.
Management continues to devote significant time and attention to improving our internal
controls, and we will continue to incur costs associated with implementing appropriate processes,
which could include fees for additional audit and consulting services, which could negatively
affect our financial condition and operating results.
36
The high level of competition in our industry could adversely affect our contract and revenue
base.
We compete with a wide variety of competitors, ranging from small, local agencies to a few
large, national organizations. Competitive factors may favor other providers and reduce our ability
to obtain contracts, which would hinder our growth. Not-for-profit organizations are active in all
states and range from small agencies serving a limited area with specific programs to multi-state
organizations. Smaller local organizations may have a better understanding of the local conditions
and may be better able to gain political and public acceptance. Not-for-profit providers may be
affiliated with advocacy groups, health organizations or religious organizations that have
substantial influence with legislators and government agencies. Increased competition may result in
pricing pressures, loss of or failure to gain market share or loss of clients or payors, any of
which could harm our business.
We rely on third parties to refer clients to our facilities and programs.
We receive substantially all of our clients from third-party referrals and are governed by the
federal anti-kickback/non-self referral statute. Our reputation and prior experience with agency
staff, care workers and others in positions to make referrals to us are important for building and
maintaining our operations. Any event that harms our reputation or creates negative experiences
with such third parties could impact our ability to receive referrals and grow our client base.
Home and community-based human services may become less popular among our targeted client
populations and/or state and local governments, which would adversely affect our results of
operations.
Our growth depends on the continuation of trends in our industry toward providing services to
individuals in smaller, community-based settings and increasing the percentage of individuals
served by non-governmental providers. The continuation of these trends and our future success are
subject to a variety of political, economic, social and legal pressures, all of which are beyond
our control. A reversal in the downsizing and privatization trends could reduce the demand for our
services, which could adversely affect our revenue and profitability.
Government reimbursement procedures are time-consuming and complex, and failure to comply with
these procedures could adversely affect our liquidity, cash flows and operating results.
The government reimbursement process is time-consuming and complex, and there can be delays
before we receive payment. Government reimbursement, group home credentialing and Medicaid
recipient eligibility and service authorization procedures are often complicated and burdensome,
and delays can result from, among other things, securing documentation and coordinating necessary
eligibility paperwork between agencies. These reimbursement and procedural issues occasionally
cause us to have to resubmit claims several times before payment is remitted. If there is a billing
error, the process to resolve the error may be time-consuming and costly. To the extent that
complexity associated with billing for our services causes delays in our cash collections, we
assume the financial risk of increased carrying costs associated with the aging of our accounts
receivable as well as increased potential for write-offs. We can provide no assurance that we will
be able to collect payment for claims at our current levels in future periods. The risks associated
with third-party payors and the inability to monitor and manage accounts receivable successfully
could have a material adverse effect on our liquidity, cash flows and operating results.
We conduct a significant percentage of our operations in Minnesota and, as a result, we are
particularly susceptible to any reduction in budget appropriations for our services or any other
adverse developments in that state.
For the six months ended March 31, 2011, 15% of our revenue was generated from contracts with
government agencies in the state of Minnesota. Accordingly, any reduction in Minnesotas budgetary
appropriations for our services, whether as a result of fiscal constraints due to recession,
changes in policy or otherwise, could result in a reduction in our fees and possibly the loss of
contracts. A rate cut of 2.6% took effect in Minnesota on July 1, 2009. We cannot assure you that
we will not receive further rate reductions this year or in the future. The concentration of our
operations in Minnesota also makes us particularly susceptible to many of the other risks described
above occurring in this state, including:
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the failure to maintain and renew our licenses;
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the failure to maintain important relationships with officials of government agencies;
and
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any negative publicity regarding our operations.
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Any of these adverse developments occurring in Minnesota could result in a reduction in
revenue or a loss of contracts, which could have a material adverse effect on our results of
operations, financial position and cash flows.
We depend upon the continued services of certain members of our senior management team, without
whom our business operations could be significantly disrupted.
Our success depends, in part, on the continued contributions of our senior officers and other
key employees. Our management team has significant industry experience and would be difficult to
replace. If we lose or suffer an extended interruption in the service of one or more of our key
employees, our financial condition and operating results could be adversely affected. The market
for qualified individuals is highly competitive and we may not be able to attract and retain
qualified personnel to replace or succeed members of our senior management or other key employees,
should the need arise.
Our success depends on our ability to manage growing and changing operations and successfully
optimize our cost structure.
Since 1998, our business has grown significantly in size and complexity. This growth has
placed, and is expected to continue to place, significant demands on our management, systems,
internal controls and financial and physical resources. Our operations are highly decentralized,
with many billing, accounting and collection functions being performed at the local level. This
requires us to expend significant resources implementing and monitoring compliance at the local
level. In addition, we expect that we will need to further develop our financial and managerial
controls and reporting systems to accommodate future growth. This will require us to incur expenses
for hiring additional qualified personnel, retaining professionals to assist in developing the
appropriate control systems and expanding our information technology infrastructure. The nature of
our business is such that qualified management personnel can be difficult to find. We also are
continuing to take actions to optimize our cost structure, including most recently centralizing
certain functions and implementing a review of our field administrative functions. To the extent
these optimization efforts and any related reductions in force disrupt our operations, there could
be an adverse effect on our financial results. In addition, our cost structure optimization efforts
may not achieve the cost savings we expect within the anticipated time frame, or at all. Our
inability to manage growth and implement cost structure optimization effectively could have a
material adverse effect on our results of operations, financial position and cash flows.
Our information systems are critical to our business and a failure of those systems could
materially harm us.
We depend on our ability to store, retrieve, process and manage a significant amount of
information, and to provide our operations with efficient and effective accounting, census,
incident reporting and scheduling systems. Our information systems require maintenance and
upgrading to meet our needs, which could significantly increase our administrative expenses.
Furthermore, any system failure that causes an interruption in service or availability of our
critical systems could adversely affect operations or delay the collection of revenues. Even though
we have implemented network security measures, our servers are vulnerable to computer viruses,
break-ins and similar disruptions from unauthorized tampering. The occurrence of any of these
events could result in interruptions, delays, the loss or corruption of data, or cessations in the
availability of systems, all of which could have a material adverse effect on our financial
position and results of operations and harm our business reputation.
The performance of our information technology and systems is critical to our business
operations. Our information systems are essential to a number of critical areas of our operations,
including:
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accounting and financial reporting;
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billing and collecting accounts;
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coding and compliance;
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clinical systems, including census and incident reporting;
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records and document storage; and
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monitoring quality of care and collecting data on quality and compliance measures.
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Our financial results may suffer if we have to write-off goodwill or other intangible assets.
A portion of our total assets consists of goodwill and other intangible assets. Goodwill and
other intangible assets, net of accumulated amortization, accounted for 63.3% and 65.7% of the
total assets on our balance sheet as of March 31, 2011 and September 30, 2010, respectively. We may
not realize the value of our goodwill or other intangible assets and we expect to engage in
additional transactions that will result in our recognition of additional goodwill or other
intangible assets. We evaluate on a regular basis whether events and circumstances have occurred
that indicate that all or a portion of the carrying amount of goodwill or other intangible assets
may no longer be recoverable, and is therefore impaired. Under current accounting rules, any
determination that impairment has occurred would require us to write-off the impaired portion of
our goodwill or the unamortized portion of our intangible assets, resulting in a charge to our
earnings. Such a write-off could have a material adverse effect on our financial condition and
results of operations.
We may be more susceptible to the effects of a public health catastrophe than other businesses due
to the vulnerable nature of our client population.
Our primary clients are individuals with developmental disabilities, brain injuries, or
emotionally, behaviorally or medically complex challenges, many of whom may be more vulnerable than
the general public in a public health catastrophe. For example, in a flu pandemic, we could suffer
significant losses to our client population and, at a high cost, be required to pay overtime or
hire replacement staff and Mentors for workers who drop out of the workforce. Accordingly, certain
public health catastrophes such as a flu pandemic could have a material adverse effect on our
financial condition and results of operations.
We are controlled by our principal equityholder, which has the power to take unilateral action.
Vestar controls our business affairs and material policies. Circumstances may occur in which
the interests of Vestar could be in conflict with the interests of our debt holders. In addition,
Vestar may have an interest in pursuing acquisitions, divestitures or other transactions that, in
their judgment, could enhance their equity investment, even though such transactions might involve
risks to our debt holders. Vestar is in the business of making investments in companies and may
from time to time acquire and hold interests in businesses that compete directly or indirectly with
us. Vestar may also pursue acquisition opportunities that may be complementary to our business and,
as a result, those acquisition opportunities may not be available to us. So long as investment
funds associated with or designated by Vestar continue to own a significant amount of our equity
interests, even if such amount is less than 50%, Vestar will continue to be able to significantly
influence or effectively control our decisions.
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Item 2.
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Unregistered Sales of Equity Securities and Use of Proceeds.
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Unregistered Sales of Equity Securities
No equity securities of the Company were sold during the three months ended March 31, 2011;
however, the Companys indirect parent, NMH Investment, LLC (NMH Investment), did sell equity
securities during this period.
The following table sets forth the number of units of common equity of NMH Investment issued
during the quarter ended March 31, 2011 pursuant to the NMH Investment, LLC Amended and Restated
2006 Unit Plan, as amended. The units were issued under Rule 701 promulgated under the Securities
Act of 1933.
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Date
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Title of Securities
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Amount
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Purchasers
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Consideration
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February 23, 2011
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Class B Common Units
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1,925.00
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One employee
|
|
$
|
96.25
|
|
|
|
Class C Common Units
|
|
|
2,020.00
|
|
|
|
|
|
|
$
|
60.60
|
|
|
|
Class D Common Units
|
|
|
2,140.00
|
|
|
|
|
|
|
$
|
21.40
|
|
Repurchases of Equity Securities
No equity securities of the Company were repurchased during the three months ended March 31,
2011.
The following table sets forth information in connection with repurchases made by NMH
Investment of its common equity units during the three months ended March 31, 2011:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(d) Maximum
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Number (or
|
|
|
|
|
|
|
|
|
|
|
|
(c) Total Number
|
|
|
Approximate Dollar
|
|
|
|
|
|
|
|
|
|
|
|
of Units Purchased
|
|
|
Value) of Shares (or
|
|
|
|
(a) Class and
|
|
|
|
|
|
|
as Part of Publicly
|
|
|
Units) that May Yet
|
|
|
|
Total Number of
|
|
|
(b) Average Price
|
|
|
Announced Plans
|
|
|
be Purchased Under
|
|
|
|
Units Purchased
|
|
|
Paid per Unit
|
|
|
or Programs
|
|
|
the Plans or Programs
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Month #1
(January 1, 2011
through January 31,
2011)
|
|
2,500.00 A Units
|
|
$
|
10.00
|
|
|
|
|
|
|
|
N/A
|
|
|
|
4,812.50 B Units
|
|
$
|
0.05
|
|
|
|
|
|
|
|
N/A
|
|
|
|
5,050.00 C Units
|
|
$
|
0.03
|
|
|
|
|
|
|
|
N/A
|
|
|
|
5,350.00 D Units
|
|
$
|
0.01
|
|
|
|
|
|
|
|
N/A
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Month #2 (February
1, 2011 through
February 28, 2011)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
N/A
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
N/A
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
N/A
|
|
Month #3 (March 1,
2011 through March
31, 2011)
|
|
3,100.00 A Units
|
|
$
|
10.00
|
|
|
|
|
|
|
|
N/A
|
|
|
|
4,812.50 B Units
|
|
$
|
0.05
|
|
|
|
|
|
|
|
N/A
|
|
|
|
5,050.00 C Units
|
|
$
|
0.03
|
|
|
|
|
|
|
|
N/A
|
|
|
|
5,350.00 D Units
|
|
$
|
0.01
|
|
|
|
|
|
|
|
N/A
|
|
39
The Company did not repurchase any of its common stock as part of an equity repurchase program
during the three months ended March 31, 2011. NMH Investment purchased all of the units listed in
the table from four of its employees upon or after their departures.
|
|
|
Item 3.
|
|
Defaults Upon Senior Securities.
|
None.
|
|
|
Item 4.
|
|
(Removed and Reserved).
|
|
|
|
Item 5.
|
|
Other Information.
|
Amendment to NMH Investment, LLC Amended and Restated 2006 Unit Plan
On
May 10, 2011, the board of directors NMH Investment, LLC (NMH Investment), the indirect
parent company of the Company, approved an amendment (the Amendment) to the NMH Investment, LLC
Amended and Restated 2006 Unit Plan (the 2006 Unit Plan) to authorize the issuance of Class F
Common Units (the Class F Common Units) of NMH Investment, a new class of non-voting equity units
of NMH Investment, under the 2006 Unit Plan. Pursuant to the Amendment, up to 5,396,388 Class F
Common Units may be issued under the 2006 Unit Plan to senior managers of the Company as
equity-based compensation.
On
May 10, 2011, the compensation committee of the board of directors of the Company
granted, for no cost, 4,296,387.32 Class F Common Units to senior managers of the Company,
including the named executive officers in the amounts set forth below:
|
|
|
|
|
|
|
Number of Class F
|
|
Name
|
|
Common Units
|
|
Edward M. Murphy
|
|
|
701,245.51
|
|
Bruce F. Nardella
|
|
|
455,617.52
|
|
Denis M. Holler
|
|
|
355,617.52
|
|
David M. Petersen
|
|
|
314,780.83
|
|
The Class F Common Units will be issued pursuant to a management unit subscription agreement
for Series 1 Class F Common Units (the management unit subscription agreement) between NMH
Investment and each participant, the form of which is attached to
this Quarterly Report on Form 10-Q and is incorporated by reference herein.
Management Unit Subscription Agreement
Each of the participants will enter into a management unit subscription agreement with NMH
Investment with respect to his or her Class F Common Units. The management unit subscription
agreement provides for vesting of the Class F Common Units depending on the length of employment
with the Company. For participants who have been continuously employed by the Company since
December 31, 2008, 75% of the Class F Common Units vest upon grant and 25% of the Class F Common
Units will vest on the date that is 18 months following the date of grant if the participant
continues to be employed by the Company on that date. For participants who have not been
continuously employed by the Company since December 31, 2008, 50% of the Class F Common Units vest
upon grant, 25% of the Class F Common Units vest on the date that is 18 months following the date
of grant and 25% of the Class F Common Units vest on the date that is 36 months following the date
of grant, in each case, if the participant continues to be employed by the Company on that date.
Class F Common Units that are awarded after the initial
issuances approved on May 10, 2011 will vest in three equal tranches on each of the first three anniversaries of the date on
which such Class F Common Units are awarded.
40
The management unit subscription agreement for each of the named executive officers provides
that if the named executive officers employment is terminated due to death, disability or
retirement prior to the earlier of (i) an initial public offering by or involving NMH Investment or
any of its subsidiaries or (ii) a sale of the Company, the named executive officer and each of his
or her permitted transferees (collectively, an executive officer group) has the right, subject to
certain limitations, for 45 days following the six month anniversary of his or her termination, to
sell to NMH Investment, on one occasion, a number of vested Class F Common Units equal to a
specified percentage (the specified percentage) of the total number of vested Class F Common
Units held by the executive officer group, at a purchase price equal to fair market value as
determined pursuant to the terms of the management unit subscription agreement (the put right).
In order to exercise this put right, the executive officer group will also be required to
simultaneously sell to NMH Investment a number of Class B, C and D Common Units equal to the
specified percentage of the total number of such Class B, C and D Common Units held by the
executive officer group. The specified percentage for Mr. Murphy is 38.15%, the specified
percentage for Mr. Nardella is 52.23%, the specified percentage for Mr. Holler is 65.29% and the
specified percentage for Mr. Petersen is 59.37%. Upon execution of the management unit
subscription agreement, any existing put rights that the named executive officers may have had
under the terms of existing agreements with respect to the Class B, C and D Common Units will be
terminated.
If a participants employment with the Company is terminated prior to a sale of the Company,
or if the participant engages in competitive activity (as defined in the management unit
subscription agreement), all of the participants unvested Class F Common Units will be forfeited
on the date of termination, and the Company has the right to purchase all of the participants
vested Class B, C, D and F Common Units (in the case of the named executive officers, less the
number of units that may have been repurchased by the Company pursuant to the put right for named
executive officers) during the eight-month period following the termination date. In the event of
a purchase of units at the option of the Company, (i) if the named executive officer is terminated
for cause, or if the named executive officer engages in competitive activity, the purchase price
will be equal to the lesser of fair market value and the original cost, and (ii) if the participant
is terminated for any other reason, the purchase price will be equal to fair market value. If
there is a sale of the Company, all Class F Common Units that have not yet vested will vest on the
date of the consummation of the sale of the Company if the participant has been continuously
employed by the Company through the date of the sale. Pursuant to the terms of the management unit
subscription agreement, the Class F Common Units will not vest upon an initial public offering by
or involving NMH Investment or any of its subsidiaries.
The management unit subscription agreement contains non-compete and non-solicitation
provisions that apply through the later of (x) the first anniversary of the termination of
employment and (y) the maximum number of years of base salary the participant is entitled to
receive as severance upon a termination event. These restrictions are substantially the same as
the existing restrictions in the management unit subscription agreements for the existing Class B,
C and D Common Units. The Class F Common Units are subject to substantially the same restrictions
on transfer as the existing Class B, C and D Common Units and are subject to the terms of the fifth
amended and restated limited liability company agreement of NMH Investment and the securityholders
agreement among NMH Investment, Vestar Capital Partners V, L.P. (Vestar), an affiliate of Vestar,
the management investors and each of the other investors party thereto.
Amendments to Existing Preferred Units and Equity Awards
In connection with the amendment to the 2006 Unit Plan and the issuance of the Class F Common
Units, NMH Investment entered into a fifth amended and restated limited liability company with
Vestar, an affiliate of Vestar, and the members party thereto (the LLC Agreement), which amends
and restates the fourth amended and restated limited liability company agreement of NMH Investment,
LLC. Pursuant to the LLC Agreement, all of the Preferred Units of NMH Investment were amended such
that the amount distributable in respect of each outstanding Preferred Unit was fixed based on a
specified return as of December 31, 2010. In addition, the terms of the Class B, C and D Common
Units were amended to accelerate the vesting of any unvested Class B, C and D Common Units so that
they became 100% vested on May 10, 2011. The LLC Agreement also provides for the issuance of the
Class F Common Units and the allocation of distributions of assets among the classes of Common
Units. As amended, the allocations in the LLC Agreement would result in holders of the Class B, C,
D and F Common Units receiving distributions of assets representing 10% of the total return on
investment to common equity holders upon a sale or other liquidity event involving NMH Investment.
The Exhibit Index is incorporated herein by reference.
41
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly
caused this report to be signed on its behalf by the undersigned thereunto duly authorized.
|
|
|
|
|
|
NATIONAL MENTOR HOLDINGS, INC.
|
|
May 16, 2011
|
By:
|
/s/ Denis M. Holler
|
|
|
|
Denis M. Holler
|
|
|
Its:
|
Chief Financial Officer,
Treasurer and duly authorized officer
|
|
42
EXHIBIT INDEX
|
|
|
|
|
|
|
Exhibit
|
|
|
|
|
No.
|
|
Description
|
|
|
|
3.1
|
|
|
Amended and Restated Certificate of
Incorporation of National Mentor Holdings,
Inc.
|
|
Incorporated by reference to Exhibit
3.1 of National Mentor Holdings, Inc.
Form 10-Q for the quarterly period
ended March 31, 2007 (the March 2007
10-Q)
|
|
|
|
|
|
|
|
|
3.2
|
|
|
By-Laws of National Mentor Holdings, Inc.
|
|
Incorporated by reference to Exhibit
3.2 of the March 2007 10-Q
|
|
|
|
|
|
|
|
|
4.1
|
|
|
Indenture, dated as of February 9, 2011,
among National Mentor Holdings, Inc., the
subsidiary guarantors named therein, and
Wells Fargo Bank, National Association, as
trustee.
|
|
Incorporated by reference to Exhibit
4.1 of National Mentor Holdings, Inc.
Current Report on Form 8-K filed on
February 9, 2011 (the February 9, 2011
8-K)
|
|
|
|
|
|
|
|
|
4.2
|
|
|
Form of 12.50% Senior Note due 2018
(included as Exhibit A to Exhibit 4.1).
|
|
Incorporated by reference to Exhibit 4.1
|
|
|
|
|
|
|
|
|
4.3
|
|
|
Supplemental Indenture, dated as of January
27, 2011, between National Mentor Holdings,
Inc. and U.S. Bank National Association
|
|
Incorporated by reference to Exhibit
10.3 of the February 9, 2011 8-K.
|
|
|
|
|
|
|
|
|
10.1
|
|
|
Credit Agreement, dated as of February 9,
2011, by and among NMH Holdings, LLC, as
parent guarantor, National Mentor Holdings,
Inc., as borrower, the several lenders from
time to time party thereto, and UBS, as
Administrative Agent.
|
|
Incorporated by reference to Exhibit
10.1 of the February 9, 2011 8-K.
|
|
|
|
|
|
|
|
|
10.2
|
|
|
Guarantee and Security Agreement, dates as
of February 9, 2011, among NMH Holdings,
LLC, as parent guarantor, National Mentor
Holdings, Inc., as borrower, certain
subsidiaries of National Mentor Holdings,
Inc., as subsidiary guarantors, and UBS AG,
as administrative agent.
|
|
Incorporated by reference to Exhibit
10.3 of the February 9, 2011 8-K.
|
|
|
|
|
|
|
|
|
10.3
|
|
|
Management Agreement, dated as of February
9, 2011, among National Mentor Holdings,
Inc., National Mentor Holdings, LLC, NMH
Investment, LLC, NMH Holdings, Inc., NMH
Holdings, LLC and Vestar Capital Partners.
|
|
Incorporated by reference to Exhibit
10.3 of the February 9, 2011 8-K.
|
|
|
|
|
|
|
|
|
10.4
|
*
|
|
Letter Agreement between National Mentor
Holdings, Inc. and Juliette E. Fay dated
February 11, 2011
|
|
Incorporated by reference to Exhibit
10.2 of National Mentor Holdings,
Inc.s Current Report on Form 10-Q for
the quarterly period ended December 31,
2010.
|
|
|
|
|
|
|
|
|
10.5
|
*
|
|
The
MENTOR Network Incentive Compensation Plan effective March 4, 2011.
|
|
Filed herewith
|
|
|
|
|
|
|
|
|
10.6
|
*
|
|
Second
Amendment to NMH Investment, LLC Amended and
Restated 2006 Unit Plan.
|
|
Filed herewith
|
|
|
|
|
|
|
|
|
10.7
|
*
|
|
Form of Management Unit Subscription
Agreement (Series 1 Class F Common Units).
|
|
Filed herewith
|
|
|
|
|
|
|
|
|
31.1
|
|
|
Certification of principal executive officer.
|
|
Filed herewith
|
|
|
|
|
|
|
|
|
31.2
|
|
|
Certification of principal executive officer.
|
|
Filed herewith
|
|
|
|
|
|
|
|
|
31.3
|
|
|
Certification of principal financial officer.
|
|
Filed herewith
|
|
|
|
|
|
|
|
|
32
|
|
|
Certifications furnished pursuant to 18
U.S.C. Section 1350.
|
|
Filed herewith
|
|
|
|
*
|
|
Management contract or compensatory plan or arrangement.
|
43
Exhibit 10.7
MANAGEMENT UNIT SUBSCRIPTION AGREEMENT
(Series 1 Class F Units)
THIS MANAGEMENT UNIT SUBSCRIPTION AGREEMENT (this
Agreement
) is made as of ______________
___, 2011 by and between NMH Investment, LLC, a Delaware limited liability company (the
Company
), and the individual named on the signature page hereto (the
Executive
).
WHEREAS, on the terms and subject to the conditions hereof, the Executive desires to subscribe
for and acquire from the Company, and the Company desires to issue and provide or sell to the
Executive, the Companys Series 1 Class F Common Units with a Participation Threshold (as defined
in the LLC Agreement (as defined below)) in the amount set forth on Schedule I attached hereto (the
Class F Units
), in each case in the amounts set forth on Schedule I attached hereto, as
hereinafter set forth; and
WHEREAS, this Agreement is one of several agreements entered into or being entered into by the
Company with certain persons who are or will be key employees and/or directors of the Company or
one or more subsidiaries (collectively with the Executive, the
Management Investors
) as
part of an equity purchase plan designed to comply with Rule 701 promulgated under the Securities
Act (as defined below).
NOW, THEREFORE, in order to implement the foregoing and in consideration of the mutual
representations, warranties, covenants and agreements contained herein, the parties hereto agree as
follows:
1.
Definitions
.
1.1
Agreement
. The term Agreement shall have the meaning set forth in the preface.
1.2
Board
. The Board shall mean the Companys Management Committee.
1.3
Cause
. The term Cause used in connection with the termination of employment of the Executive
shall have the same meaning ascribed to such term in any employment or severance agreement then in
effect between Executive and the Company or one of its subsidiaries or, if no such agreement
containing a definition of Cause is then in effect, shall mean a termination of employment of the
Executive by the Company or any subsidiary thereof due to (i) the commission by the Executive of an
act of fraud or embezzlement, (ii) the indictment or conviction of the Executive for (x) a felony
or (y) a crime involving moral turpitude or a plea by
Executive of guilty or nolo contendere involving such a crime (to the extent it gives rise to
an adverse effect on the business or reputation of the Company or any of its subsidiaries), (iii)
the willful misconduct by the Executive in the performance of Executives duties, including any
willful misrepresentation or willful concealment by Executive on any report submitted to the
Company (or any
of its
securityholders or subsidiaries) which is not of a de minimis nature, (iv)
the violation by Executive of a written Company policy regarding substance abuse, sexual harassment
or discrimination or any other material written policy of the Company regarding employment, (v) the
willful failure of the Executive to render services to the Company or any of its subsidiaries in
accordance with Executives employment which failure amounts to a material neglect of the
Executives duties to the Company or any of its subsidiaries, (vi) the repeated failure of the
Executive to comply with reasonable directives of the Board of Directors of National Mentor
Holdings, Inc. (
NMH
) or the Chief Executive Officer of NMH consistent with the
Executives duties or (vii) the material breach by Executive of any of the provisions of any
agreement between Executive, on the one hand, and the Company or a securityholder or an affiliate
of the Company, on the other hand. Notwithstanding the foregoing, with respect to clauses (iii),
(iv), (v), (vi) and (vii) above, Executives termination of employment with the Company or NMH
shall not be deemed to have been terminated for Cause unless and until Executive has been provided
written notice of the Companys or NMHs intention to terminate his employment for Cause and the
specific facts relied on; and ten (10) business days from the receipt of such notice to cure any
such conduct or omission giving rise to a termination for Cause; and Executive does not cure any
such conduct or omission within such ten business-day period.
1.4
Closing
. The term Closing shall have the meaning set forth in Section 2.2.
1.5
Closing Date
. The term Closing Date shall have the meaning set forth in Section 2.2.
1.6
Company
. The term Company shall have the meaning set forth in the preface.
1.7
Cost
. The term Cost shall mean the price per Unit paid by the Executive as proportionately
adjusted for all subsequent distributions of Units and other recapitalizations and less the amount
of any distributions made with respect to the Units pursuant to Section 4.4 of the LLC Agreement
(other than tax distributions pursuant to Section 4.4(j) of the LLC Agreement). For Units that are
granted, the original price per Unit paid is $0.00.
1.8
Disability
. The term Disability of the Executive shall have the same meaning ascribed to such term in
any employment or severance agreement then in effect between Executive and the
Company or one of its subsidiaries or, if no such agreement containing a definition of
Disability is then in effect, shall mean the inability of the Executive to perform the essential
functions of Executives job, with or without reasonable accommodation, by reason of a physical or
mental infirmity, for a continuous period of six months. The period of six months shall be deemed
continuous unless Executive returns to work for at least 30 consecutive business days during such
period and performs during such period at the level and competence that existed prior to the
beginning of the six-month period. The date of such Disability shall be on the first day of such
six-month period.
1.9
Employee and Employment
. The term employee shall mean any employee (as defined in accordance with the regulations
and revenue rulings then applicable under Section 3401(c) of the Internal Revenue Code of 1986, as
amended) of the Company or any of its subsidiaries, and the term employment shall include service
as a part- or full-time employee to the Company or any of its subsidiaries.
2
1.10
Executive
. The term Executive shall have the meaning set forth in the preface.
1.11
Executive Group
. The term Executive Group shall have the meaning set forth in Section 4.1(a).
1.12
Fair Market Value
. The term Fair Market Value used in connection with the value of Units shall mean the
average of the closing prices of the sales of the Companys Units on all securities exchanges on
which the Units may at the time be listed, or, if there have been no sales on any such exchange on
any day, the average of the highest bid and lowest asked prices on all such exchanges at the end of
such day or, if on any day the Units are not so listed, the average of the representative bid and
asked prices quoted in the NASDAQ System as of 4:00 P.M., New York time, or, if on any day the
Units are not quoted in the NASDAQ System, the average of the highest bid and lowest asked prices
on such day in the domestic over-the-counter market as reported by the National Quotation Bureau
Incorporated or any similar successor organization, in each such case averaged over a period of 21
days consisting of the day as of which the Fair Market Value is being determined and the 20
consecutive business days prior to such day. If at any time the Units are not listed on any
securities exchange or quoted in the NASDAQ System or the over-the-counter market, the Fair Market
Value shall be the fair value of the Units determined in good faith by the Board using its
reasonable business judgment (valuing the Company and its subsidiaries as a going concern;
disregarding any discount for minority interest or marketability of the Units, whether due to
transfer restrictions or the lack of a public market for the Units; taking into account the
Preferred Priority Return (as defined in the LLC Agreement); without taking into account the effect
of any contemporaneous forfeiture or repurchase of Units at less than Fair Market Value under
Section 4)
[after consultation with an
independent appraiser, accountant or investment banking firm (the
Valuation
Expert
);]
1
provided that
[(i) the Board shall only be obligated to consult a
Valuation Expert once annually absent special circumstances (as determined in good faith by the
Board) and (ii)]
2
if the Executive disagrees in good faith with the Boards
determination and such dispute involves an amount in excess of $250,000, the Executive shall notify
the Company in writing of such disagreement within ten (10) business days of receipt of the Boards
determination of the fair market value of such Units, in which event
[a second Valuation Expert //
an independent appraiser, accountant or investment banking firm]
3
(the
Arbiter
) selected by mutual agreement of the Executive and the Board shall make a
determination of the fair market value thereof (valuing the Company and its subsidiaries as set
forth above);
[and without taking into account the effect of any contemporaneous forfeiture or
repurchase of Units at less than Fair Market Value under Section 4)]
4
solely by (i)
reviewing a single written presentation timely made by each of the Company and the Executive
setting forth their respective resolutions of the dispute and the bases therefor and (ii) accepting
either the Executives or the Companys proposed resolution of the dispute. For the avoidance of
doubt, the determination of Fair Market Value of any Unit shall be based on the amounts
distributable in respect of such Unit under the terms of the LLC Agreement, including any
adjustments necessary to reflect the portion of any tax distributions that were previously made in
respect of such Unit but not charged against other distributions in respect of such Unit.
|
|
|
1
|
|
NTD
: Include for top-level
executives only.
|
|
2
|
|
NTD
: Include for top-level
executives only.
|
|
3
|
|
NTD
: Include first option for
top-level executives only; include second option for other Executives.
|
|
4
|
|
NTD
: Include for non-top-level
executives only.
|
3
Within five (5) business days after the Companys receipt of Executives written notice of
disagreement, the Company shall make available to Executive all data (including reports of
employees and outside advisors) relied upon by the Board in making its determination. The
Executives and the Companys written presentations must be submitted to the Arbiter within 30 days
of the Arbiters engagement, written notice of which shall be delivered by the Company to the
Executive. The Arbiter shall notify the Executive and the Company of its decision within 40 days
of its engagement. If the Executives proposed resolution is accepted, the Company also shall pay
all of the Executives reasonable out-of-pocket fees and expenses (including reasonable fees and
expenses of counsel) incurred in connection with the arbitration. Each of the Company and the
Executive agrees to execute, if requested by the Arbiter, a reasonable engagement letter with the
Arbiter.
1.13
Financing Default
. The term Financing Default shall mean an event which would constitute (or with notice or
lapse of time or both would constitute) an event of default under any of the following as they may
be amended from time to time: (i) the Credit Agreement, dated as of February 9, 2011, among NMH
Holdings, LLC, NMH as Borrower, the several banks and other financial institutions or entities from
time to time parties thereto and UBS AG, Stamford Branch, as
administrative agent, as amended, and the Indenture, dated as of February 9, 2011, among NMH,
the Guarantors (as defined in the Indenture), and Wells Fargo Bank, National Association, as
trustee, as amended, and the Senior Notes issued by NMH pursuant to the Indenture (collectively,
the
Financing Agreements
), and any extensions, renewals, refinancings or refundings
thereof in whole or in part; (ii) any other agreement under which an amount of indebtedness of the
Company or any of its subsidiaries in excess of $5,000,000 is outstanding as of the time of the
aforementioned event, and any extensions, renewals, refinancings or refundings thereof in whole or
in part; (iii) restrictive financial covenants contained in the LLC Agreement of the Company or
NMHs organizational documents; (iv) any amendment of, supplement to or other modification of any
of the instruments referred to in clauses (i) through (iii) above; and (v) any of the securities
issued pursuant to or whose terms are governed by the terms of any of the agreements set forth in
clauses (i) through (iv) above, and any extensions, renewals, refinancings or refundings thereof in
whole or in part.
1.14
Good Reason
. The term Good Reason shall have the same meaning ascribed to such term in any employment
or severance agreement then in effect between Executive and the Company or one of its subsidiaries
or, if no such agreement containing a definition of Good Reason is then in effect, shall mean (i)
a change by the Company or NMH in Executives duties and responsibilities which is materially
inconsistent with Executives position in the Company or in NMH, (ii) a reduction in Executives
annual base salary or annual bonus opportunity (excluding any reduction in Executives salary or
bonus opportunity that is part of a plan to reduce compensation of comparably situated employees of
the Company generally; provided that such reduction in Executives salary or bonus opportunity is
not greater than ten percent (10%) of Executives salary or bonus opportunity as in effect
4
on June
29, 2006), (iii) a material breach by the Company of the employment agreement, if any, between
Executive and the Company or one of its subsidiaries, and (iv) the relocation of the Executives
principal place of work from its current location to a location that is beyond a 50-mile radius of
such current location; provided that, notwithstanding anything to the contrary in the foregoing,
Executive shall only have Good Reason to terminate employment following the Companys failure to
remedy the act or omission which is alleged to constitute Good Reason within fifteen (15) days
following the Companys receipt of written notice from Executive specifying such act or omission.
1.15
LLC Agreement
. The term LLC Agreement means the Fifth Amended and Restated Limited Liability Company
Agreement, dated as of
___, 2011, by and among the Company, Vestar and the other Members
of the Company a party thereto, as amended from time to time in accordance with the provisions
thereof.
1.16
Management Investors
. The term Management Investors shall have the meaning set forth in the preface.
1.17
Permitted Transferee
. The term Permitted Transferee means any transferee of Units pursuant to clauses (f) or
(g) of the definition of Exempt Employee Transfer as defined in the Securityholders Agreement.
1.18
Person
. The term Person shall mean any individual, corporation, partnership, limited liability
company, trust, joint stock company, business trust, unincorporated association, joint venture,
governmental authority or other entity of any nature whatsoever.
1.19
Public Offering
. The term Public Offering shall have the meaning set forth in the Securityholders
Agreement.
1.20
Put Percentage
. The term Put Percentage shall mean the put percentage set forth on Schedule I.
1.21
Puttable Units
. The term Puttable Units shall mean Class B Units, Class C Units, Class D Units and Vested
Units.
1.22
Retirement
. The term Retirement shall mean, with respect to the Executive, the Executives retirement
as an employee of the Company or any of its subsidiaries on or after reaching age 65 or such
earlier age as may be otherwise determined by the Board after at least three years employment with
the Company or any of its subsidiaries after the Closing Date.
1.23
Sale of the Company
. The term Sale of the Company shall have the meaning set forth in the Securityholders
Agreement, except that transactions with a Person or Persons that are a wholly owned Subsidiary (as
defined in the Securityholders Agreement) of Vestar and/or Vestar/NMH Investors, LLC or NMH
Investment, LLC shall be excluded.
1.24
Securities Act
. The term Securities Act shall mean the Securities Act of 1933, as amended, and all rules
and regulations promulgated thereunder, as the same may be amended from time to time.
5
1.25
Securityholders Agreement
. The term Securityholders Agreement shall mean the Securityholders Agreement dated as of
June 29, 2006 among Vestar, the Management Investors and the Company, as it may be amended or
supplemented thereafter from time to time.
1.26
Termination Date
. The term Termination Date means the date upon which Executives employment with the
Company and its subsidiaries is terminated.
1.27
Unit Plan
. The term Unit Plan means the Amended and Restated 2006 Unit Plan of the Company, as it
may be amended or supplemented from time to time.
1.28
Units
. The term Units shall have the meaning set forth in the LLC Agreement.
1.29
Unvested Units
. The term Unvested Units shall have the meaning set forth in Section 2.5(b).
1.30
Vestar
. The term Vestar means Vestar Capital Partners V, L.P., a Cayman Islands exempted limited
partnership.
1.31
Vested Units
. The term Vested Units shall have the meaning set forth in Section 2.5(b).
2.
Grant of Class F Units.
2.1
Grant of Class F Units
. Pursuant to the terms and subject to the conditions set forth in this Agreement, the
Company hereby agrees to grant and issue to the Executive, on the Closing Date the number of Class
F Units set forth on Schedule I attached hereto.
2.2
The Closing
. The closing (the
Closing
) of the issuance of Class F Units hereunder shall take
place on
__, 2011 (the
Closing Date
). The Company and the Executive hereby
agree that the Executive shall execute and deliver to the Company a writing satisfactory to the
Company and evidencing the Executives acceptance and adoption of all of the terms and provisions
of each of the LLC Agreement and the Securityholders Agreement (to the extent Executive is not
already a party thereto).
2.3
Section 83(b) Election
. Within 10 days after the Closing, Executive shall provide the Company with a completed
election under Section 83(b) of the Internal Revenue Code of 1986, as amended, and
the regulations promulgated thereunder in the form of Exhibit A attached hereto. The Company
shall timely file (via certified mail, return receipt requested) such election with the Internal
Revenue Service (
IRS
), and shall provide Executive with proof of such timely filing.
2.4
Closing Conditions
. Notwithstanding anything in this Agreement to the contrary, the Company shall be under no
obligation to issue and sell to the Executive any Units unless (i) Executive is an employee of, or
consultant to, the Company or one of its Subsidiaries on the Closing Date; (ii) the representations
of Executive contained in Section 3 hereof are true and correct in all material respects as of the
Closing Date and (iii) Executive is not in breach of any agreement, obligation or covenant herein
required to be performed or observed by Executive on or prior to the Closing Date.
6
2.5
Vesting of Class F Units
.
(a) The Class F Units acquired by the Executive shall be subject to vesting in the manner
specified in Schedule II attached hereto.
(b) All Class F Units which have become vested pursuant to this Agreement are collectively
referred to herein as the
Vested Units
. All Class F Units which have not become vested
pursuant to this Agreement are collectively referred to herein as
Unvested Units
.
(c) If the Executives employment with the Company is terminated for any reason or if the
Executive engages in Competitive Activity (as defined in Section 6.1 of this Agreement), each
Unvested Unit will automatically be forfeited on the date of such termination or the Activity Date,
as applicable, for no consideration and any of the Executives rights or interests therein will
automatically be terminated and of no further force and effect with no further action required on
the part of the Company to effect such forfeiture or termination.
3.
Investment Representations and Covenants of the Executive.
3.1
Units Unregistered
. The Executive acknowledges and represents that Executive has been advised by the Company
that:
(a) the offer and sale of the Units have not been registered under the Securities Act;
(b) the Units must be held indefinitely and the Executive must continue to bear the
economic risk of the investment in the Units unless the offer and sale of such Units are
subsequently registered under the Securities Act and all applicable state securities laws or
an exemption from such registration is available;
(c) there is no established market for the Units and it is not anticipated that there
will be any public market for the Units in the foreseeable future;
(d) a notation shall be made in the appropriate records of the Company indicating that
the Units are subject to restrictions on transfer and, if the Company should at some time in
the future engage the services of a securities transfer agent, appropriate stop-transfer
instructions will be issued to such transfer agent with respect to the Units.
3.2
Additional Investment Representations
. The Executive represents and warrants that:
(a) the Executives financial situation is such that Executive can afford to bear the
economic risk of holding the Units for an indefinite period of time, has adequate means for
providing for Executives current needs and personal contingencies, and can afford to suffer
a complete loss of Executives investment in the Units;
7
(b) the Executives knowledge and experience in financial and business matters are such
that Executive is capable of evaluating the merits and risks of the investment in the Units;
(c) the Executive understands that the Units are a speculative investment which
involves a high degree of risk of loss of Executives investment therein, there are
substantial restrictions on the transferability of the Units and, on the Closing Date and
for an indefinite period following the Closing, there will be no public market for the Units
and, accordingly, it may not be possible for the Executive to liquidate Executives
investment in case of emergency, if at all;
(d) the terms of this Agreement provide that if the Executive ceases to be an employee
of the Company or its subsidiaries, Unvested Units are subject to forfeiture and the Company
and its affiliates have the right to repurchase Vested Units at a price which may, under
certain circumstances, be less than the Fair Market Value thereof;
(e) the Executive understands and has taken cognizance of all the risk factors related
to the purchase of the Units and, other than as set forth in this Agreement, no
representations or warranties have been made to the Executive or Executives representatives
concerning the Units or the Company or their prospects or other matters;
(f) the Executive has been given the opportunity to examine all documents and to ask
questions of, and to receive answers from, the Company and its representatives concerning
the Company and its subsidiaries, the Securityholders Agreement, the Companys
organizational documents and the terms and conditions of the purchase of the Units and to
obtain any additional information which the Executive deems necessary; and
(g) all information which the Executive has provided to the Company and the Companys
representatives concerning the Executive and Executives financial position is complete and
correct as of the date of this Agreement.
4.
Certain Sales and Forfeitures Upon Termination of Employment
.
4.1
Put Option.
(a)
[If the Executives employment with the Company and its subsidiaries terminates due to the
Disability, death or Retirement of the Executive prior to the earlier of (i) a Public Offering or
(ii) a Sale of the Company, the Executive and the Executives Permitted Transferees (hereinafter
sometimes collectively referred to as the
Executive Group
) shall have the right, subject
to the provisions of Section 5 hereof, for 45 days following the date that is six (6) months after
the date of such termination of employment of the Executive, to sell to the Company, and the
Company shall be required to purchase (subject to the provisions of Section 5 hereof), on one
occasion from each member of the Executive Group, a number of Vested Units equal to the product of
(x) the Put Percentage and (y) the number of Vested Units then held by the Executive Group, at a
price per Unit equal to the applicable purchase price determined pursuant to Section 4.
1(c)
. In
order to exercise its rights with respect to the Vested Units pursuant to this Section 4.
1(a)
, the
Executive Group shall also be required to simultaneously sell to the Company, and the Company shall
be required to purchase (subject to the provisions of Section 5 hereof), on such occasion from each
member of the Executive Group, a number of Units of each of the other classes of Puttable Units
held by the Executive Group equal to the product of (x) the Put Percentage and (y) the number of
Units of such class of Puttable Units held by the Executive Group, at a price per Unit equal to the
applicable purchase price determined pursuant to Section 4.
1(c)
.
8
(b)
If the Executive Group desires to exercise its option to require the Company to repurchase
Units pursuant to Section 4.
1(a)
, the members of the Executive Group shall send one written notice
to the Company setting forth such members intention to collectively sell the Put Percentage of
each class of Puttable Units held by the Executive Group pursuant to Section 4.
1(a)
, which notice
shall include the signature of each member of the Executive Group. Subject to the provisions of
Section 5.1, the closing of the purchase shall take place at the principal office of the Company on
a date specified by the Company no later than the 60th day after the giving of such notice.
(c)
In the event of a purchase by the Company pursuant to Section 4.
1(a)
, the purchase price
of any Units subject to purchase under Section 4.
1(a)
shall be Fair Market Value (measured as of
the put notice date);
provided
that in any case the Board shall have the right, in its sole
discretion, to increase any of the foregoing purchase prices. For the avoidance of doubt, no
Unvested Units will be subject to purchase under Section 4.
1(a)
as they will have been forfeited
pursuant to Section 2.
5(c)
.
(d)
Any put or right to require the Company to repurchase Puttable Units that the Executive
Group may have in accordance with the terms of the agreements (including, without limitation, any
Management Unit Subscription Agreements) pursuant
to which such other Units were purchased from or granted by the Company are hereby terminated
and of no further force and effect.]
5
(e)
[Any put or right to require the Company to repurchase Puttable Units that the Executive
and the Executives Permitted Transferees (hereinafter sometimes collectively referred to as the
Executive Group
) may have in accordance with the terms of the agreements (including,
without limitation, any Management Unit Subscription Agreements) pursuant to which such other Units
were purchased from or granted by the Company are hereby terminated and of no further force and
effect.]
6
|
|
|
5
|
|
NTD
: Include for top-level
executives only.
|
|
6
|
|
NTD
: Include for non-top-level
executives.
|
9
4.2
Call Options
.
(a) If the Executives employment with the Company and its subsidiaries terminates for any of
the reasons set forth in clauses (i), (ii) or (iii) below prior to a Sale of the Company,
[if the
number of Puttable Units sold to the Company pursuant to the Executive Groups exercise of the put
option pursuant to Section 4.1 is less than the number of Puttable Units held by the Executive
Group]
7
or if the Executive engages in Competitive Activity (as defined in Section 6.1
of this Agreement), the Company shall have the right and option to purchase for a period of eight
months following the Termination Date
8
, and each member of the Executive Group shall be
required to sell to the Company, any or all of such Puttable Units then held by such member of the
Executive Group (it being understood that if Puttable Units of any class subject to repurchase
hereunder may be repurchased at different prices, the Company may elect to repurchase only the
portion of the Puttable Units of such class subject to repurchase hereunder at the lower price), at
a price per unit equal to the applicable purchase price determined pursuant to Section 4.2(c):
(i) if the Executives employment with the Company and its subsidiaries is terminated
due to the Disability, death or Retirement of the Executive;
(ii) if the Executives employment with the Company and its subsidiaries is terminated
by the Company and its subsidiaries without Cause or by the Executive for Good Reason;
(iii) if the Executives employment with the Company and its subsidiaries is terminated
(A) by the Company or any of its subsidiaries for Cause or (B) by the Executive for any
other reason not set forth in Section 4.2(a)(i) or Section 4.2(a)(ii).
(b) If the Company desires to exercise one of its options to purchase Puttable Units pursuant
to this Section 4.2, the Company shall, not later than eight months after the Termination Date,
send written notice to each member of the Executive Group of its intention to purchase Puttable
Units, specifying the number of Puttable Units to be purchased (the
Call Notice
and the
date that such Call Notice is given, the
Call Notice Date
). Subject to the provisions of
Section 5, the closing of the purchase shall take place at the principal office of the Company on a
date specified by the Company no later than the 30th day after the Call Notice Date.
(c) In the event of a purchase by the Company pursuant to Section 4.2(a), the purchase price
shall be:
(i) with respect to a purchase of Puttable Units, in the case of a termination of
employment described in Section 4.2(a)(iii)(A) or if Executive engages in a Competitive
Activity (as defined in Section 6.1 of this Agreement), a price per Unit equal to the
lesser of (A) Fair Market Value (measured as of the Call Notice Date) and (B) Cost; and
(ii) with respect to a purchase of Puttable Units, in the case of a termination of
employment described in Section 4.2(a)(i), 4.2(a)(ii) or 4.2(a)(iii)(B), a price per Unit
equal to Fair Market Value (measured as of the Call Notice Date);
|
|
|
7
|
|
NTD
: Include for top-level executives only.
|
|
8
|
|
NTD
: Note that time period for exercising call right is tied to the Termination Date and not the Activity Date.
|
10
provided
that in any case the Board shall have the right, in its sole discretion, to
increase any purchase price set forth above.
(d) The Companys right to purchase Units (other than Vested Units) set forth in this
Agreement are in addition to, and not in lieu of, any call rights or other rights to repurchase
Units set forth in any other prior Management Unit Subscription Agreement to which the Executive
and the Company are a party.
4.3
Obligation to Sell Several
. If there is more than one member of the Executive Group, the failure of any one member
thereof to perform its obligations hereunder shall not excuse or affect the obligations of any
other member thereof, and the closing of the purchases from such other members by the Company shall
not excuse, or constitute a waiver of its rights against, the defaulting member.
5.
Certain Limitations on the Companys Obligations to Purchase Units
.
5.1
Deferral of Purchases
. (a) Notwithstanding anything to the contrary contained herein, the Company shall not be
obligated to purchase any Units at any time pursuant to Section 4, regardless of whether it has
delivered a notice of its election to purchase any such Units, (i) to the extent that the purchase
of such Units or the payment to the Company or one of its subsidiaries of a cash dividend or
distribution by a subsidiary of the Company to fund such purchase (together with any other
purchases of Units pursuant to Section 4 or pursuant to similar provisions in agreements with
other employees of the Company and its subsidiaries of which the Company has at such time been
given or has given notice and together with cash dividends and distributions to fund such other
purchases) would result (A) in a violation of any law, statute, rule, regulation, policy, order,
writ, injunction, decree or judgment promulgated or entered by any federal, state, local or foreign
court or governmental authority applicable to the Company or any of its subsidiaries or any of its
or their property, (B) after giving effect thereto, in a Financing Default or (C) adverse
accounting treatment for the Company, or (ii) if immediately prior to such purchase there exists a
Financing Default which prohibits such purchase, dividend or distribution. The Company shall
within fifteen days of learning of any such fact so notify the members of the Executive Group that
it is not obligated to purchase units hereunder.
(b) Notwithstanding anything to the contrary contained in Section 4, any Units which a member
of the Executive Group has elected to sell to the Company or which the Company has elected to
purchase from members of the Executive Group, but which in accordance with Section 5.1(a) are not
purchased at the applicable time provided in Section 4, shall be purchased by the Company for the
applicable purchase price, together with interest thereon at the Applicable Federal Rate as in
effect on the date such purchase is so deferred on or prior to the fifteenth day after such date or
dates that (after taking into account any purchases (and related dividends and distributions) to be
made at such time pursuant to agreements with other employees of the Company and its subsidiaries)
the purchase of such Units (and related dividends and distributions) are no longer prohibited under
Section 5.1(a), and the Company shall give the members of the Executive Group five days prior
notice of any such purchase.
11
5.2
Payment for Units
. If at any time the Company elects or is required to purchase any Units pursuant to Section
4, the Company shall pay the purchase price for the Units it purchases (i) first, by the
cancellation of any indebtedness, if any, owing from the Executive to the Company or any of its
subsidiaries (which indebtedness shall be applied pro rata against the proceeds receivable by each
member of the Executive Group receiving consideration in such repurchase) and (ii) then, by the
Companys delivery of a check or wire transfer of immediately available funds for the remainder of
the purchase price, if any, against delivery of the certificates or other instruments representing
the Units so purchased, duly endorsed; provided that if any of the conditions set forth in Section
5.1(a) exists which prohibits such cash payment (either directly or indirectly as a result of the
prohibition of a related cash dividend or distribution), the portion of the cash payment so
prohibited may be made, to the extent such payment is not prohibited, by the Companys delivery of
a junior subordinated promissory note (which shall be subordinated and subject in right of payment
to the prior payment of any debt outstanding under the Financing Agreements and any modifications,
renewals, extensions, replacements and refunding of all such indebtedness) of the Company (a
Junior Subordinated Note
) in a principal amount equal to the balance of the purchase
price, payable (x) in the event of a termination of employment referenced in Section 4.2(a)(i) and
(ii), as soon as the conditions set forth in Section 5.1(a) no longer exist or (x) in the event of
a termination of employment referenced in Section 4.2(a)(iii), on the fifth anniversary of the
issuance thereof, and bearing interest payable annually at the Applicable Federal Rate on the date
of issuance; provided further that if any of the conditions set forth in Section 5.1(a) exists
which prohibits such payment (or the payment described in the next
proviso) by delivery of a Junior Subordinated Note, the portion of the payment so prohibited
may be made, to the extent such payment is not prohibited, by the Companys delivery of preferred
units of the Company having an aggregate liquidation preference equal to the balance of the
purchase price; provided further that in the case of a purchase pursuant to Section 4.2(a)(iii) the
Company may elect at any time to deliver a Junior Subordinated Note in a principal amount equal to
all or a portion of the cash purchase price (in lieu of paying such portion of the purchase price
in cash), which Junior Subordinated Note shall mature on the fifth anniversary of its issuance and
accrue interest annually at the Applicable Federal Rate on the date of issuance, which interest
shall be payable at maturity. The Company shall use its reasonable efforts to repurchase Units
pursuant to Section 4.1(a) or Section 4.2(a)(i) or Section 4.2(a)(ii) with cash and/or to prepay
any Junior Subordinated Notes or redeem any preferred units issued in connection with a repurchase
of Units pursuant to Section 4.1(a) or Section 4.2(a)(i) or Section 4.2(a)(ii). The Company shall
have the right set forth in clause (i) of the first sentence of this Section 5.2 whether or not the
member of the Executive Group selling such units is an obligor of the Company. Any Junior
Subordinated Note (or preferred units issued in lieu thereof) shall become prepayable (or
redeemable) upon a Sale of the Company from net cash proceeds, if any, payable to the Company or
its unitholders; to the extent that sufficient net cash proceeds are not so payable, the Junior
Subordinated Note (or preferred units issued in lieu thereof) shall be cancelled in exchange for
such other non-cash consideration received by unitholders in the Sale of the Company having a fair
market value equal to the principal of and accrued interest on the note. Any Junior Subordinated
Note (or preferred units issued in lieu thereof) also shall become prepayable upon the consummation
of an initial Public Offering. The principal of and accrued interest on any such note may be
prepaid (and preferred units issued in lieu thereof may be redeemed) in whole or in part at any
time at the option of the Company. If interest (or cash dividends) is required to be paid on any
Junior Subordinated Note (or preferred units issued in lieu thereof) prior to maturity and any of
the conditions set forth in Section 5.1(a) exists or if any such cash payment would result in
adverse accounting treatment for the Company which prohibits the payment of such interest (or
dividends) in cash, such interest may be cumulated and accrued until and to the extent that such
prohibition no longer exists.
12
6.
Noncompetition
.
6.1
Competitive Activity
. Executive shall be deemed to have engaged in Competitive Activity if, during the period
commencing on the date hereof and ending on the later of (x) the first anniversary of the date
Executives employment with the Company and its subsidiaries is terminated or (y) the maximum
number of years of base salary Executive is entitled to receive as severance in a termination by
the Company without Cause, Executive, whether on Executives own behalf or on behalf of or in
conjunction with any other person or entity, directly or indirectly (A) solicits, or assists in
soliciting, the business of any client of the Company or any of its subsidiaries (collectively, the
Entities
), or hires any employee of any of the Entities, or interferes with, or attempts
to interfere with, the relationships between any of the Entities, on the one hand, and any of its
customers, clients, suppliers, partners, members, employees or investors, on the other hand; or (B)
becomes an employee, agent, representative, consultant, partner, shareholder or holder of
any other financial interest with respect to any business, individual, partnership, joint
venture, association, firm, corporation or other entity engaged, wholly or in part, in the
provision or sale of acquired brain injury services, therapeutic foster care, other foster care or
other home or community-based healthcare, therapy, counseling or other educational or human
services to people with special needs, or any other business that the Company is actively
conducting or is actively considering conducting at the time of Executives termination of
employment (so long as Executive knows or reasonably should have known about such plan(s)), in each
case in any geographical area within 100 mile radius of the Executives principal place of work as
of the Termination Date with the Company or its affiliates, as applicable(the
Competitive
Business
). Notwithstanding the foregoing, if Executive is subject to a more restrictive
noncompetition covenant in any agreement with the Company or any of its affiliates, the most
restrictive of such noncompetition covenants shall apply.
6.2
Activity Date
. If Executive engages in Competitive Activity, the
Activity Date
shall be the
first date on which Executive engages in such Competitive Activity.
6.3
Repayment of Proceeds
. If Executive engages in Competitive Activity, then Executive shall be required to pay to
the Company, within ten business days following the Activity Date, an amount equal to the excess,
if any, of (A) the aggregate proceeds Executive received upon the sale or other disposition of
Executives Units, over (B) the aggregate Cost of such Units.
7.
Miscellaneous
.
7.1
Transfers to Permitted Transferees
. Prior to the transfer of Units to a Permitted Transferee (other than a transfer subsequent
to a Sale of the Company), the Executive shall deliver to the Company a written agreement of the
proposed transferee (a) evidencing such Persons undertaking to be bound by the terms of this
Agreement and (b) acknowledging that the Units transferred to such Person will continue to be Units
for purposes of this Agreement in the hands of such Person. Any transfer or attempted transfer of
Units in violation of any provision of this Agreement or the Securityholders Agreement shall be
void, and the Company shall not record such transfer on its books or treat any purported transferee
of such Units as the owner of such Units for any purpose.
13
7.2
Recapitalizations, Exchanges, Etc., Affecting Units
. The provisions of this Agreement shall apply, to the full extent set forth herein with
respect to Units, to any and all securities of the Company or any successor or assign of the
Company (whether by merger, consolidation, sale of assets or otherwise) which may be issued in
respect of, in exchange for, or in substitution of the Units, by reason of any dividend payable in
units, issuance of units, combination, recapitalization, reclassification, merger,
consolidation or otherwise.
7.3
Executives Employment by the Company
. Nothing contained in this Agreement, in any documents delivered to Executive or any of the
other Management Investors in connection with Executives investment in the Company pursuant to
this Agreement, or in any other documents delivered to Executive or any of the other Management
Investors in connection with any previous investment in the Company by any such Management Investor
shall be deemed to obligate the Company or any subsidiary of the Company to (i) employ the
Executive in any capacity whatsoever or to prohibit or restrict the Company (or any such
subsidiary) from terminating the employment of the Executive at any time or for any reason
whatsoever, with or without Cause, or (ii) provide any severance payments, benefits or any other
monetary compensation or employee benefit to Executive in connection with a termination of
Executives employment other than as required by applicable law.
7.4
Unit Plan
. Executive acknowledges that the Class F Units are being issued pursuant to the Unit Plan
and agrees to be bound by the terms of the Unit Plan with respect to Executives Units.
7.5
Cooperation
. Executive agrees to cooperate with the Company in taking action reasonably necessary to
consummate the transactions contemplated by this Agreement.
7.6
Binding Effect
. The provisions of this Agreement shall be binding upon and accrue to the benefit of the
parties hereto and their respective heirs, legal representatives, successors and assigns; provided,
however, that no Transferee shall derive any rights under this Agreement unless and until such
Transferee has executed and delivered to the Company a valid undertaking and becomes bound by the
terms of this Agreement; and provided further that Vestar is a third party beneficiary of this
Agreement and shall have the right to enforce the provisions hereof.
7.7
Amendment; Waiver
. This Agreement may be amended only by a written instrument signed by the parties hereto.
No waiver by any party hereto of any of the provisions hereof shall be effective unless set forth
in a writing executed by the party so waiving.
7.8
Governing Law
. This Agreement shall be governed by and construed and enforced in accordance with the laws
of the State of Delaware applicable to contracts made and to be performed therein.
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7.9
Jurisdiction
. Any suit, action or proceeding with respect to this Agreement, or any judgment entered by
any court in respect of any thereof, shall be brought in any court of competent jurisdiction in the
State of Delaware, and each of the Company and the members of the Executive Group hereby submits to
the exclusive jurisdiction of such courts for the purpose of any such suit, action, proceeding or
judgment. Each of the members of the Executive Group and the Company hereby irrevocably waives (i)
any objections which it may now or hereafter have to the laying of the venue of any suit, action or
proceeding arising out of or relating to this Agreement brought in any court of competent
jurisdiction in the State of Delaware, (ii) any claim that any such suit, action or proceeding
brought in any such court has been brought in any inconvenient forum and (iii) any right to a jury
trial.
7.10
Notices
. All notices and other communications hereunder shall be in writing and shall be deemed to
have been duly given when personally delivered, telecopied (with confirmation of receipt), one day
after deposit with a reputable overnight delivery service (charges prepaid) and three days after
deposit in the U.S. Mail (postage prepaid and return receipt requested) to the address set forth
below or such other address as the recipient party has previously delivered notice to the sending
party.
(a) If to the Company:
NMH Investment, LLC
c/o Vestar Capital Partners
245 Park Avenue, 41st Floor
New York, NY 10167
Attn: General Counsel
Telecopy: (212) 808-4922
with copies to:
National Mentor Holdings, Inc.
313 Congress Street
6th Floor
Boston, Massachusetts 02210
Attn: Linda DeRenzo
Telecopy: (617) 790-4271
and
Kirkland & Ellis LLP
300 North LaSalle Street
Chicago, IL 60654
Attn: Sanford E. Perl, P.C.
Mark A. Fennell, P.C.
Telecopy: (312) 862-2200
(b) If to the Executive, to the address as shown on the unit register of the Company.
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7.11
Integration
. This Agreement and the documents referred to herein or delivered pursuant hereto which form
a part hereof contain the entire understanding of the parties with respect to the subject matter
hereof and thereof. There are no restrictions, agreements, promises, representations, warranties,
covenants or undertakings with respect to the subject matter hereof other than those expressly set
forth herein and therein. This Agreement supersedes all prior agreements and understandings
between the parties with respect to such subject matter. For the avoidance of doubt, this
Agreement shall not supersede or amend any written Management Unit Subscription Agreement
previously executed by the parties hereto that evidences a previous purchase of Units made by the
Executive from the Company.
7.12
Counterparts
. This Agreement may be executed in separate counterparts, and by different parties on
separate counterparts each of which shall be deemed an original, but all of which shall constitute
one and the same instrument.
7.13
Injunctive Relief
. The Executive and Executives Permitted Transferees each acknowledges and agrees that a
violation of any of the terms of this Agreement will cause the Company irreparable injury for which
adequate remedy at law is not available. Accordingly, it is agreed that the Company shall be
entitled to an injunction, restraining order or other equitable relief to prevent breaches of the
provisions of this Agreement and to enforce specifically the terms and provisions hereof in any
court of competent jurisdiction in the United States or any state thereof, in addition to any other
remedy to which it may be entitled at law or equity.
7.14
Rights Cumulative; Waiver
. The rights and remedies of the Executive and the Company under this Agreement shall be
cumulative and not exclusive of any rights or remedies which either would otherwise have hereunder
or at law or in equity or by statute, and no failure or delay by either party in exercising any
right or remedy shall impair any such right or remedy or operate as a waiver of such right or
remedy, nor shall any single or partial exercise of any power or right preclude such partys other
or further exercise or the exercise of any other power or right. The waiver by any party
hereto of a breach of any provision of this Agreement shall not operate or be construed as a waiver
of any preceding or succeeding breach and no failure by either party to exercise any right or
privilege hereunder shall be deemed a waiver of such partys rights or privileges hereunder or
shall be deemed a waiver of such partys rights to exercise the same at any subsequent time or
times hereunder.
* * * * *
16
IN WITNESS WHEREOF, the parties have executed this Management Unit Subscription Agreement as
of the date first above written.
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NMH INVESTMENT, LLC,
a Delaware limited liability company
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By:
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Name:
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Edward M. Murphy
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Title:
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CEO
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[Executive Name]
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17
CONSENT OF SPOUSE
I,
, the undersigned spouse of Executive, hereby acknowledge that I have
read the foregoing Management Unit Subscription Agreement (the
Agreement
) and that I
understand its contents. I am aware that the Agreement provides for the forfeiture and/or
repurchase of my spouses Units (as defined in the Agreement) under certain circumstances and
imposes other restrictions on the transfer of such Units. I agree that my spouses interest in the
Units is subject to the Agreement and any interest I may have in such Units shall also be
irrevocably bound by the Agreement and, further, that my community property interest in such Units,
if any, shall be similarly bound by the Agreement.
I am aware that the legal, financial and other matters contained in the Agreement are complex
and I am encouraged to seek advice with respect thereto from independent legal and/or financial
counsel. I have either sought such advice or determined after carefully reviewing the Agreement
that I hereby waive such right.
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Acknowledged and agreed this ___ day of
,
2011
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Name:
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Witness
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SCHEDULE I
[Executive Name]
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Participation Threshold
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Granted Units
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Number
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per Class F Unit
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Series 1 Class F Units:
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$
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0.00
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[Put Percentage
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[_____]%]
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9
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NTD
: Only for top-level executives.
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SCHEDULE II
[Executive Name]
[The Executives Class F Units shall become vested as follows: (i) 75% of the Class F Units shall
become vested on the Closing Date and (ii) the remaining 25% of the Class F Units shall become
vested upon the date that is eighteen months after the Closing Date if as of such date Executive
is, and since the Closing Date continuously has been, employed by the Company or any of its
subsidiaries.]
10
[The Executives Class F Units shall become vested as follows: (i) 50% of the Class F Units shall
become vested on the Closing Date, (ii) 25% of the Class F Units shall become vested on the date
that is eighteen months after the Closing Date and (iii) 25% of the Class F Units shall become
vested on the three-year anniversary of the Closing Date (such that the Class F Units shall become
100% vested on the three-year anniversary of the Closing Date) if as of each such date Executive
is, and since the Closing Date continuously has been, employed by the Company or any of its
subsidiaries.]
11
[The Executives Class F Units shall become vested as follows: one-third of the Class F Units shall
become vested on each of the first three anniversaries of the Closing Date (such that the Class F
Units shall become 100% vested on the three-year anniversary of the Closing Date) if as of each
such date Executive is, and since the Closing Date continuously has been, employed by the Company
or any of its subsidiaries.]
12
Upon the occurrence of a Sale of the Company, all Class F Units which have not yet become vested
shall become vested as of the date of consummation of such Sale of the Company if, as of such date,
Executive has been continuously employed by the Company or any of its subsidiaries from the Closing
Date through and including such date;
provided
, that for purposes of this paragraph, a
Public Offering shall not constitute a Sale of the Company.
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10
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Note to Draft
: Include for grants
made at the closing of the new plan to Executives who have been continuously
employed by the Company or any of its subsidiaries from December 31, 2008
through the Closing Date.
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Note to Draft
: Include for grants
made at the closing of the new plan to Executives who have
not
been
continuously employed by the Company or any of its subsidiaries from
December 31, 2008 through the Closing Date.
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12
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Note to Draft
: Include for grants
made after the closing of the new plan.
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ELECTION TO INCLUDE UNITS IN GROSS
INCOME PURSUANT TO SECTION 83(b) OF THE
INTERNAL REVENUE CODE
The undersigned purchased units (the Units) of NMH Investment, LLC (the
Company
)
on
___, 2011. The undersigned desires to make an election to have the Units taxed under
the provision of Section 83(b) of the Internal Revenue Code of 1986, as amended (
Code
§83(b)
), at the time the undersigned purchased the Units.
Therefore, pursuant to Code §83(b) and Treasury Regulation §1.83-2 promulgated thereunder, the
undersigned hereby makes an election, with respect to the Units (described below), to report as
taxable income for calendar year 2011 the excess, if any, of the Units fair market value on
___, 2011 over the purchase price thereof.
The following information is supplied in accordance with Treasury Regulation §1.83-2(e):
The name, address and social security number of the undersigned:
[Executives Name]
[Address]
[Social Security Number]
1. A description of the property with respect to which the election is being made: _____
Class F Common Units.
2. The date on which the property was transferred:
___, 2011. The taxable year for
which such election is made: calendar year 2011.
3. The restrictions to which the property is subject: The Class F Common Units are subject to
a time-based vesting schedule. If the undersigned ceases to be employed by the Company or any of
its subsidiaries under certain circumstances, all or a portion of the Units may be subject to
forfeiture and/or repurchase by the Company at the original purchase price paid for the Units,
regardless of the fair market value of the Units on the date of such repurchase. The Units are
also subject to transfer restrictions.
4. The aggregate fair market value on
___, 2011 of the property with respect to which
the election is being made, determined without regard to any lapse restrictions: $0.00.
5. The aggregate amount paid for such property: $0.00.
A copy of this election has been furnished to the Secretary of the Company pursuant to
Treasury Regulations §1.83-2(e)(7).
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Dated:
___, 2011
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[Executive Name]
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