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(Mark One)
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-K
x
ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934
For the fiscal year ended December 31, 2018
or
¨
TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF
1934
For the transition period from to
Commission File Number: 001-35628
PERFORMANT FINANCIAL CORPORATION
(Exact name of registrant as specified in its charter)
Delaware
(State or other jurisdiction of
incorporation or organization)
333 North Canyons Parkway, Livermore, CA
(Address of principal executive offices)
20-0484934
(I.R.S. Employer
Identification No.)
94551
(Zip Code)
Registrant’s telephone number, including area code: (925) 960-4800
Securities registered pursuant to Section 12(b) of the Act:
Title of each class:
Common Stock, par value $.0001 per share
Name of each exchange on which registered:
NASDAQ Global Select Market
Securities registered pursuant to Section 12(g) of the Act:
Common Stock, par value $.0001 per share
(Title of class)
Indicate by check mark if the registrant is a well-known seasoned issuer, as defined in Rule 405 of the Securities Act. Yes ¨
No x
Indicate by check mark if the registrant is not required to file reports pursuant to Section 13 or Section 15(d) of the Act. Yes ¨
No x
Indicate by check mark whether the registrant (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during
the preceding 12 months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to such filing requirements for the
past 90 days. Yes x
No ¨
Indicate by check mark whether the registrant has submitted electronically and posted on its corporate Web site, if any, every Interactive Data File required to
be submitted and posted pursuant to Rule 405 of Regulation S-T (section 232.405 of this chapter) during the preceding 12 months (or for such shorter period that
the registrant was required to submit and post such files). Yes x
No ¨
Indicate by check mark if disclosure of delinquent filers pursuant to Item 405 of Regulation S-K is not contained herein, and will not be contained, to the best
of registrant’s knowledge, in definitive proxy or information statements incorporated by reference in Part III of this Form 10-K or any amendment to this Form 10-
K. x
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company. See the
definitions of “large accelerated filer,” “accelerated filer” and “smaller reporting company” in Rule 12b-2 of the Exchange Act.
Large accelerated filer
¨
Accelerated filer
Non-accelerated filer
¨
(Do not check if a smaller reporting company)
Smaller reporting company
Emerging growth company
¨
x
¨
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or
revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ¨
Indicate by check mark whether the registrant is a shell company (as defined in Rule 12b-2 of the Act). Yes ¨
No x
As of June 30, 2018 (the last business day of the registrant’s most recently completed second quarter), the aggregate market value of the common stock held
by non-affiliates of the registrant was $55,076,384 . Shares of common stock beneficially held by each officer and director and by each person who owns 10% or
more of the outstanding common stock have been excluded in that such persons may be deemed to be affiliates. This determination of affiliate status is not
necessarily a conclusive determination for other purposes.
As of March 29, 2019 , 53,146,350 shares of the registrant’s common stock were outstanding.
Documents Incorporated By Reference
All or a portion of Items 10 through 14 in Part III of this Form 10-K are incorporated by reference to the Registrant’s definitive proxy statement on
Schedule 14A, which will be filed within 120 days after the close of the fiscal year covered by this report on Form 10-K, or if the Registrant’s Schedule 14A is not
filed within such period, will be included in an amendment to this Report on Form 10-K which will be filed within such 120 day period.
Table of Contents
TABLE OF CONTENTS
PART I
ITEM 1.
ITEM 1A.
ITEM 1B.
ITEM 2.
ITEM 3.
ITEM 4.
PART II
ITEM 5.
ITEM 6.
ITEM 7.
Business
Risk Factors
Unresolved Staff Comments
Properties
Legal Proceedings
Mine Safety Disclosures
Market for Registrant’s Common Equity, Related Stockholder Matters and Issuer Purchases of Equity Securities
Selected Financial Data
Management’s Discussion and Analysis of Financial Condition and Results of Operations
ITEM 7A.
Quantitative and Qualitative Disclosures about Market Risk
ITEM 8.
ITEM 9.
ITEM 9A.
ITEM 9B.
PART III
ITEM 10.
ITEM 11.
ITEM 12.
ITEM 13.
ITEM 14.
PART IV
ITEM 15.
ITEM 16.
Financial Statements and Supplementary Data
Changes in and Disagreements with Accountants on Accounting and Financial Disclosure
Controls and Procedures
Other Information
Directors, Executive Officers and Corporate Governance
Executive Compensation
Security Ownership of Certain Beneficial Owners and Management and Related Stockholder Matters
Certain Relationships and Related Transactions, and Director Independence
Principal Accounting Fees and Services
Exhibits, Financial Statement Schedules
Form 10-K Summary
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PART I
Cautionary Statement Regarding Forward-Looking Information
This Annual Report on Form 10-K contains, in addition to historical information, certain forward-looking statements within the meaning of the Private
Securities Litigation Reform Act of 1995. All statements other than statements of historical fact contained in this Annual Report on Form 10-K, including
statements regarding our future results of operations and financial position, strategy and plans, and our expectations for future operations, are forward-looking
statements. The words “believe,” “may,” “estimate,” “continue,” “anticipate,” “design,” “intend,” “expect” and similar expressions are intended to identify
forward-looking statements. We have based these forward-looking statements largely on our current expectations and projections about future events and trends
that we believe may affect our financial condition, results of operations, strategy, short-term and long-term business operations and objectives, and financial needs.
Forward-looking statements include, but are not limited to, statements about:
•
•
•
•
•
•
•
our opportunities and expectations for growth in the student lending, healthcare and other markets;
anticipated trends and challenges in our business and competition in the markets in which we operate;
our client relationships and future growth opportunities;
the adaptability of our technology platform to new markets and processes;
our ability to invest in and utilize our data and analytics capabilities to expand our capabilities;
our growth strategy of expanding in our existing markets and considering strategic alliances or acquisitions;
our ability to meet our liquidity and working capital needs;
• maintaining, protecting and enhancing our intellectual property;
•
•
•
our expectations regarding future expenses;
expected future financial performance; and
our ability to comply with and adapt to industry regulations and compliance demands.
These statements reflect current views with respect to future events and are based on assumptions and subject to risks and uncertainties. There are a
variety of factors could cause actual results to differ materially from the anticipated results or expectations expressed in our forward-looking statements. These
risks and uncertainties include, but are not limited to, those risks discussed in Item 1A of this report. Given these uncertainties, you should not place undue reliance
on these forward-looking statements.
Forward-looking statements contained in this report present management’s views only as of the date of this report. We undertake no obligation to publicly
update forward-looking statements, whether as a result of new information, future events or otherwise. You are advised, however, to consult any further disclosures
we make on related subjects in our quarterly reports on Form 10-Q and current reports on Form 8-K filed with the Securities and Exchange Commission.
ITEM 1. Business
Overview
We provide technology-enabled audit, recovery, outsource customer services, and related analytics services in the United States. Our services help
identify improper payments, and in some markets, restructure and recover delinquent or defaulted assets and improper payments for both government and private
clients in a broad range of markets. Our clients typically operate in complex and regulated environments and outsource their audit and recovery needs in order to
reduce losses on billions of dollars of defaulted student loans, improper healthcare payments and delinquent state tax and federal treasury and other receivables.
We also provide complex outsource customer services for clients across our various markets. We generally provide our services on an outsourced basis, where we
handle many or all aspects of our clients’ audit and recovery processes.
We believe we have a leading position in our markets based on our technology-enabled services platform, long-standing client relationships and the large
volume of claims or funds we have audited and recovered for our clients. In the student loan recovery market, we have relationships with a large number of the
active Guaranty Agencies (GAs), which are state or non-profit agencies that administer and rehabilitate student loans issued under the former federally-governed
student loan program. In the healthcare market, we have been a Medicare Recovery Audit Contractor (RAC), in the United States for the Centers for Medicare and
Medicaid Services (CMS), for over ten years, and are currently servicing two RAC contracts and
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an additional Medicare Secondary Payer Commercial Repayment Center (CRC) contract. We have also expanded our client base to include multiple insurance
providers in the private healthcare market.
We believe that our business platform is easily adaptable to new markets and processes. Over the past several years, we have successfully extended our
platform into additional markets with significant recovery opportunities. For example, we utilized the same basic platform previously used primarily for student
loan recovery activities to enter the state tax, federal treasury receivables and healthcare recovery markets. We continue to enhance our platform through
investment in new data and analytics capabilities, which we believe will enable us to provide additional services such as services relating to the detection of fraud,
waste and abuse. We endeavor to automate and optimize what traditionally have been manually intensive processes in order to drive higher workforce productivity.
In 2018, we generated in excess of $100,000 of revenue per employee, based on the average number of employees during the year.
Our revenue model is generally success-based as we earn fees based on a percentage of the aggregate correct audits, and/or amount of funds that we
enable our clients to recover. Our services do not require any significant upfront investments by our clients, and we offer our clients the opportunity to recover
significant funds otherwise lost. Because our model is based upon the success of our efforts, our business objectives are aligned with those of our clients and we
are generally not reliant on their spending budgets. Furthermore, our business model does not require significant capital as we do not purchase loans or obligations.
For the year ended December 31, 2018 , we generated approximately $155.7 million in revenues, $8.0 million in net loss, $(5.2) million in adjusted
EBITDA and $14.3 million in adjusted net loss. See “Management's Discussion and Analysis of Financial Condition and Results of Operations - Adjusted
EBITDA and Adjusted Net Income” in Item 7 below for a definition of adjusted EBITDA and adjusted net income and reconciliations of adjusted EBITDA and
adjusted net income to net income determined in accordance with generally accepted accounting principles.
Our Markets
We operate in markets characterized by strong growth, a complex regulatory environment and a significant amount of delinquent, defaulted or improperly
paid assets.
Student Lending
Government-supported student loans are authorized under Title IV of the Higher Education Act of 1965. Historically, there have been two distribution
channels for student loans: (i) the Federal Direct Student Loan Program, or FDSLP, which represents loans made and managed directly by the Department of
Education; and (ii) the Federal Family Education Loan Program, or FFELP, which represents loans made by private institutions and currently backed by any of the
25 GAs.
In July 2010, the government-supported student loan sector underwent a structural change with the passage of the Student Aid and Fiscal Responsibility
Act, or SAFRA. This legislation transitioned all new government-supported student loan originations to the FDSLP, and away from originations made by private
institutions within the FFELP that had previously utilized the GAs to guarantee, manage and service loans. The GAs are non-profit 501(c)(3) public benefit
corporations operating under contract with the U.S. Secretary of Education, pursuant to the Higher Education Act of 1965, as amended, solely for the purpose of
guaranteeing and managing student loans originated by lenders participating in the FFELP. Consequently, the original distribution channels for student loans have
been consolidated solely into the Department of Education. Despite this transition of all new loan originations to the FDSLP, GAs continue to manage a significant
amount of defaulted student loans due to their outstanding portfolios of loans originated prior to July 2010. The outstanding portfolios of defaulted FFELP loans
managed by the GAs will, therefore, require recovery for the foreseeable future, although at progressively lower volumes.
The Department of Education estimates that the balance of defaulted loans was approximately $101.4 billion in the FDSLP and approximately $38.9
billion in the FFELP as of September 30, 2018. The total amount of federally managed loans in default is $140.3 billion. The collective amount of defaulted loans
serviced by the GAs as of September 30, 2018 was $26.1 billion. Given the operational and logistical complexity involved in managing the recovery of defaulted
student loans, the GAs and the Department of Education have historically chosen to outsource these services to third parties.
Healthcare
The healthcare industry represents a significant portion of the U.S. Gross Domestic Product (GDP). According to CMS, U.S. healthcare spending grew
3.9 percent in 2017, reaching $3.5 trillion or $10,739 per person. As a share of the nation's GDP, health spending accounted for 17.9 percent. Currently, national
health spending is projected to grow at an average
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rate of 5.5 percent per year for 2018-27 and to reach nearly $6.0 trillion by 2027. Federal government-related spending grew 4.2% to $705.9 billion in 2017 for
Medicare, which provides a range of healthcare coverage primarily to elderly and disabled Americans and grew 2.9% to $581.9 billion in 2017 for Medicaid,
which provides federal matching funds for states to finance healthcare for individuals at or below the public assistance level.
Medicare was initially established as part of the Social Security Act of 1965 and consists of four parts: Part A covers hospital and other inpatient stays;
Part B covers hospital outpatient, physician and other services; Part C is known as Medicare Advantage, under which beneficiaries receive benefits through private
health plans; and Part D is the Medicare outpatient prescription drug benefit.
The Department of Health and Human Services estimated that for Medicare Part A and Part B spending in 2018, approximately $31.6 billion, or
approximately 8.1%, was improper. Medicare improper payments generally involve incorrect coding, procedures performed which were not medically necessary,
and incomplete documentation or claims submitted based on outdated fee schedules, among other issues.
In accordance with the Medicare Prescription Drug, Improvement, and Modernization Act of 2003, a demonstration program was conducted from March
2005 to March 2008 in six states to determine if recovery audit contractors could be effectively used to identify improper payments for claims paid under Medicare
Part A and Part B. Due to the success of this demonstration, under The Tax Relief and Health Care Act of 2006, the U.S. Congress authorized the expansion of the
recovery audit program nationwide. CMS relies on third-party contractors to execute the recovery audit program to analyze millions of Medicare claims annually
for improper payments to healthcare providers. The program was implemented by designating one prime contractor in each of the four major regions in the United
States: West, Midwest, South, and Northeast. Contracts with recovery audit contractors, or RACs, were initially awarded in 2009. These contracts effectively
expired in 2016 and new contracts were awarded in October 2016.
In addition to government-related healthcare spending, significant growth in spending is expected in the private healthcare market. According to CMS’
National Health Expenditures Projections (NHE), the private healthcare market accounted for approximately $1.2 trillion in spending in 2017, and private
expenditures are projected to grow by 5.1% per year on average between 2020 and 2027.
Other Markets
State
Tax
Market
As state governments struggle with revenue generation and face significant budget deficits, many states have focused on recovery of delinquent state
taxes. According to the Center on Budget and Policy Priorities, an independent think tank, 31 U.S. states faced projected budget shortfalls totaling $46.1 billion in
2017 and 2018. The economic recession beginning in 2008 led to lower income and sales taxes from both individuals and corporations, reducing overall tax
revenues and leading to large budget deficits at the state government level. Although there has been some improvement (from $55 billion in 2013 to $46.1 billion
in 2017 and 2018), the budget deficits continue to be a challenge for these states. While many states have received federal aid, most have cut services and increased
taxes to help close the budget shortfall and have evaluated outsourcing at least some aspect of delinquent tax recovery.
Federal
Agency
Market
The federal agency market consists of government debt subrogated to the Department of the Treasury by numerous different federal agencies, comprising
a mix of commercial and individual obligations and a diverse range of receivables. These debts are managed by the Bureau of the Fiscal Service (formerly the
Department of Financial Management Service), or FS, a bureau of the Department of the Treasury.
Federal
Tax
Market
In September 2016 the Internal Revenue Service(IRS) announced its plans to begin private collection of certain federal tax debts starting in the spring of
2017 and named Performant as one of four companies to perform these recovery services. The new program, authorized under a federal law, calls for the use of
private companies to recover, on the government’s behalf, outstanding inactive tax receivables. In Fiscal 2018, this program returned over $82 million, before costs
to the U.S. Treasury.
Our Competitive Strengths
We believe that our business is difficult to replicate, as it incorporates a combination of several important and differentiated elements, including:
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Scalable and flexible technology-enabled services platform. We have a technology platform that is highly flexible, intuitive and easy to use for our
audit, recovery and claims specialists. Our platform is easily configurable and deployable across multiple markets and processes. For example, we
have successfully extended our platform from the student loan market to the state and federal tax, federal treasury receivables and the healthcare
recovery markets, each having its own industry complexities and specific regulations.
Advanced, technology-enabled workflow processes. Our technology-enabled workflow processes, developed over many years of operational
experience in recovery services, disaggregate otherwise complex recovery processes into a series of simple, efficient and consistent steps that are
easily configurable and applicable to different types of recovery-related applications. We believe our workflow software is highly intuitive and helps
our audit, recovery and claims specialists manage each step of the recovery process, while automating a series of otherwise manually-intensive and
document-intensive steps in the recovery process. We believe our streamlined workflow technology drives higher efficiencies in our operations, as
illustrated by our ability to generate in excess of $100,000 of revenues per employee during 2018, based on the average number of employees during
the year. We believe our streamlined workflow technology also improves recovery results relative to more labor-intensive outsourcing models.
Strong data and analytics capabilities. Our data and analytics capabilities allow us to achieve strong audit results and recovery rates for our clients.
We have a proprietary data management and analysis platform which we use throughout our business. In some of our businesses, we have collected
recovery-related data for over two decades, which we combine with large volumes of client and third-party data to effectively analyze our clients’
delinquent or defaulted assets and improper payments. We have also developed a number of analytical models for claims auditing, and analytics tools
that we use to score our clients’ recovery inventory, determine the optimal recovery process and allocation of resources, and achieve higher levels of
recovery results for our clients. In addition, we utilize analytics tools to continuously measure and test our recovery workflow processes to drive
refinements and further enhance the quality and effectiveness of our capabilities.
Long-standing client relationships. We believe our long-standing focus on achieving superior recovery performance for our clients and the
significant value our clients derive from this focus have helped us achieve long-tenured client relationships, strong contract retention and better
access to new clients and future growth opportunities. We have business relationships with 14 GAs either as clients or through our contracts with
ECMC and Navient and these relationships average more than eight years in length. In the healthcare market, we have a relationship with CMS that
exceeds ten years. In October 2016 we were awarded two contracts out of the second recovery audit program procurement process, including for a
region consisting of 11 states in the Northeast and Midwest and the national DMEPOS and home health contract. In October 2017, we were awarded
a national exclusive (MSP CRC) contract by CMS.
Extensive domain expertise in complex and regulated markets. We have extensive experience and domain expertise in providing recovery services
for government and private institutions that generally operate in complex and regulated markets. We have demonstrated our ability to develop
domain expertise in new markets such as healthcare and state tax and federal Treasury receivables. We believe we have the necessary organizational
experience to understand and adapt to evolving public policy and how it shapes the regulatory environment and objectives of our clients. We believe
this helps us identify and anticipate growth opportunities. For example, we successfully identified government healthcare as a potential growth
opportunity that has thus far led to the award of five contracts to us by CMS. Together with our flexible technology platform, we have the ability to
adapt our business strategy, to allocate resources and to respond to changes in our regulatory environment to capitalize on new growth opportunities.
Proven and experienced management team. Our management team has significant industry experience and has demonstrated strong execution
capabilities. Our senior management team, led by Lisa Im, has been with us for an average of approximately 18 years. This team has successfully
grown our revenue base and service offerings beyond the original student loan market into healthcare and delinquent state and federal tax and private
financial institutions receivables. Our management team’s industry experience, combined with deep and specialized understanding of complex and
highly regulated industries, has enabled us to maintain long-standing client relationships and strong financial results.
Our Growth Strategy
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Key elements of our growth strategy include the following:
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Expand our recovery services in the healthcare market. According to CMS, Medicare spending totaled approximately $705.9 billion in 2017 and is
expected to grow by 7.6% per year on average between 2020 and 2027. In the private healthcare market, spending totaled $1.2 trillion in 2017 and
expenditures are projected to grow by 5.1% per year on average between 2020 and 2027, according to CMS’ NHE Projections. As these large
markets continue to grow, we expect the need for audit and recovery services to increase in the public and private healthcare markets. In October
2016, we were awarded new RAC contracts for Region 1 which consists of 11 states in the Northeast and Midwest, and Region 5, which covers
claims for durable medical equipment, prosthetics and orthotics and home health and hospice payment claims across the U.S. In October 2017, we
were awarded the national exclusive MSP CRC contract by CMS. We have also entered into numerous private insurance payer contracts and are
pursuing additional opportunities to provide audit, recovery and analytics services in the private healthcare market. In addition, we intend to pursue
opportunities to find and eliminate losses prior to payment for healthcare services, including the detection of fraud, waste and abuse in the public and
private healthcare markets.
• Maintain our position in the student loan market. The balance of defaulted government-supported student loans was approximately $140 billion as
of September 30, 2018. We have long-standing relationships with some of the largest participants in the government-supported student loan market.
Although the Department of Education announced in January 2018 that we were selected as one of two recovery contractors under its award for new
student loan recovery contracts, we were notified on May 3, 2018 that the Department of Education has decided to cancel the current procurement in
its entirety, and as a result terminated our contract award. Protests have been filed by certain of the unsuccessful bidders of the procurement of the
new contracts from the Department of Education, and at this time, we cannot speculate on the outcome of any such protest or when work will begin
under our new contract award.
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Expand outsource services, and recovery services in other markets . We intend to expand our outsource services, and recovery services in other
markets, including the private healthcare recovery market, state and federal tax and federal treasury receivables. We intend to capitalize on our
extensive experience and domain expertise and our highly-flexible technology platform to seek opportunities in these additional markets.
Pursue strategic alliances and acquisitions. We intend to selectively consider opportunities to grow through strategic alliances or acquisitions that
are complementary to our business. These opportunities may enhance our existing capabilities, enable us to enter new markets, expand our product
offerings and allow us to diversify our revenues.
Our Platform
Our data management, analytics, and technology-enabled services platform is proprietary and based on over two decades of experience in auditing and
recovering large amounts of funds on behalf of our clients across several markets. The components of our platform include our data management expertise,
analytics capabilities and technology-based workflow processes. Our platform integrates these components to allow us to achieve optimized outcomes for our
clients in the form of increased efficiency and productivity and high recovery rates. Our platform and workflow processes are also intuitive and easy to use for our
recovery and claims specialists and allow us to increase our employee retention and productivity.
The components of our platform include the following:
Data Management Expertise
Our platform manages and stores large amounts of data throughout the workflow process. This includes both proprietary data we have compiled over two
decades, as well as third-party data which we can integrate efficiently and in real-time to reduce errors, reduce cycle time processing and, ultimately, improve audit
finding and recovery rates. The strength of our data management expertise augments our analytics capabilities and provides our recovery and claims specialists
with powerful workflow processes.
Data Analytics Capabilities
Our data analytics capabilities efficiently screen and allocate massive volumes of inventory. For example, in our student loan business, we utilize our
proprietary algorithms to assist us in determining the most efficient recovery process and the optimal allocation of recovery specialist resources for each loan. In
the healthcare market, we analyze millions of healthcare
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claims to find potential correlations between claims data and improper payments, which enhance our finding rates. Across all of our current markets, we utilize our
proprietary analytics tools to continuously and rigorously test our workflow processes in real-time to drive greater process efficiency and improvement in recovery
rates.
Furthermore, we believe our analytics capabilities will extend our potential markets, permitting us to pursue significant new business opportunities. For
example, we have expanded the use of our data analytics capabilities in the healthcare sector to offer a variety of services from post- and pre-payment audit of
healthcare claims in both the public and private healthcare sector, to detection of fraud, waste and abuse of healthcare claims, to coordination of benefits and
pharmacy fraud detection.
Workflow Processes
Over many years, we have developed and refined our workflow processes, which we believe drive higher efficiency and productivity and reduce our
reliance on labor-intensive methods relative to more traditional outsourcing models. Our patented technology that supports our proprietary workflows to
disaggregate otherwise complex processes into a series of simple, efficient and consistent steps that are easily configurable and applicable to different types of
applications. Our workflow processes integrate a broad range of functions that encompass each stage of a workflow process.
The following recovery diagram illustrates how the various components of our platform work together to solve a typical recovery client workflow:
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Our Services
We use our technology-enabled services platform to provide recovery and analytics services in a broad range of markets for the identification and
recovery of student loans, improper healthcare payments and delinquent state and federal tax and federal treasury receivables. The table below summarizes our
recovery services and related analytics capabilities and the markets we serve.
Recovery Services
Healthcare
• Provide audit and recovery
services to identify improper
healthcare payments for public and
private healthcare clients
• Identify improper payments
typically resulting from incorrect
coding, procedures that were not
medically necessary, incomplete
documentation or claims submitted
based on outdated fee schedules
• Earn contingent, success-based
fees based on a percentage of claim
amounts recovered
Other Markets
• Provide tax recovery services to
state and municipal agencies and the
IRS
• Recover government debt for
numerous different federal agencies
under a contract with the Treasury
• Enable financial institutions to
proactively manage loan portfolios
and reduce the incidence of
defaulted loan assets
• Earn contingent, success-based
fees calculated as a percentage of
the amounts recovered, fees based
on dedicated headcount and hosted
technology licensing fees
Analytics
Capabilities
• We use our enhanced data analytics
capabilities, which we refer to as
Performant Insight, to offer a variety of
services from post- and pre-payment audit
of healthcare claims to detection of fraud,
waste and abuse of healthcare claims, to
coordination of benefits and pharmacy
fraud detection
Student Loans
• Provide recovery services to
clients in Federal guaranteed student
loan program and private institutions
• Identify and track defaulted
borrowers across our clients’
portfolios of student loans
• Utilize our proprietary
technology, our history of borrower
data and our analytics capabilities to
rehabilitate and recover past due
student loans
• Earn contingent, success-based
fees calculated as a percentage of
funds that we enable our clients to
recover
Recovery Services
Student Loans
We provide recovery services primarily to the government-supported student loan industry, and our current clients include several of the largest GAs, as
well as private financial institutions. We use our proprietary technology to identify, track and communicate with defaulted borrowers on behalf of our clients to
implement suitable recovery programs for the repayment of outstanding student loan balances.
Our clients contract with us to provide recovery services for large pools of student loans generally representing a portion of the total outstanding defaulted
balances they manage, which they provide to us as “placements” on a periodic basis. Generally, the volume of placements that we receive from our clients is
influenced by our performance under our contracts and our ability to recover funds from defaulted student loans, as measured against the performance of
competitors who may service a similar pool of defaulted loans for the same client. To the extent we perform well under our existing contracts and differentiate our
services from those of our competitors, we may receive a relatively greater number of student loan placements under these contracts and may improve our ability to
obtain future contracts from these clients and other potential clients.
We use algorithms derived from over two decades of experience with defaulted student loans to make reasonably accurate estimates of the recovery
outcomes likely to be derived from a placement of defaulted student loans.
We also restructure and recover student loans issued directly by banks to students outside of federal lending programs. These types of loans typically
supplement government-supported student loans to meet any shortfall in supply of student loan needs that cannot be met by grants or federal loans. Unlike
government-supported student loans, private student loans do not have capped interest rates and, accordingly, involve higher instances of default relative to
federally-backed student loans. Additionally, with the burgeoning personal loan industry we believe there is more opportunity for us to expand services into this
private sector.
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Healthcare
We provide audit and recovery services related to improper payments in the healthcare market. In October 2016 we were awarded two new RAC
contracts by CMS. One new award covers Parts A and B Medicare payments in a region consisting of 11 states in the Northeast and Midwest. The second award
involves post-payment review of DMEPOS and home health and hospice claims across the U.S. In addition, in October 2017 we were awarded the national
exclusive MSP CRC contract by CMS. In addition, we have entered into numerous private insurance payer contracts and are pursuing additional opportunities to
provide audit, recovery and analytic services in the private healthcare market.
Under our RAC contracts with CMS, we utilize our technology-enabled services platform to screen Medicare claims against several criteria, including
coding procedures and medical necessity standards, to determine whether a claim should be further investigated for recoupment or adjustment by CMS. We
conduct automated and, where appropriate, detailed medical necessity reviews. If we determine that the likelihood of finding a potential improper payment
warrants further investigation, we request and review healthcare provider medical records related to the claim, utilizing experts in Medicare coding and registered
nurses. We interact and communicate with healthcare providers and other administrative entities, and ultimately submit the claim to CMS for correction.
In the private healthcare market, we utilize our technology-enabled services platform to provide audit, recovery and analytical services for private
healthcare payers. Our experience from our RAC contracts has helped establish our presence in the private healthcare market by providing us the opportunity to
provide audit and recovery services for several national commercial health plans. Our audit and analytics capabilities have allowed us not only to expand our
services with these initial private healthcare clients, but also gain entry into other related private healthcare opportunities. Additionally, following our acquisition
of Premiere Credit of North America in August of 2018, we now also help hospitals and other medical providers recover payments directly from patients.
Other Markets
We also provide recovery services to several federal, state and municipal tax authorities, the Department of the Treasury and a number of financial
institutions.
In September 2016 the Internal Revenue Service, or IRS, announced its plans to begin private collection of certain federal tax debts starting in the spring
of 2017 and named us as one of four companies to perform these recovery services. The new program, authorized under a federal law, calls for the use of private
companies to recover, on the government’s behalf, outstanding inactive tax receivables. Although the initial placement volumes were low when we commenced
work under this contract in April 2017 reflecting the IRS’s objective of a methodical contract start, by the end of 2018, the number of placements of federal tax
receivables we received from the IRS more than doubled from what we had processed in 2017. In the 2018 fiscal year, this new recovery program returned an
aggregate of over $82 million, before costs, to the U.S. Department of the Treasury.
For state and municipal tax authorities, we analyze a portfolio of delinquent tax and other receivables placed with us, develop a recovery plan and execute
a recovery process designed to maximize the recovery of funds. In some instances, we have also run state tax amnesty programs, which provide one-time relief for
delinquent tax obligations, and other debtor management services for our clients. We currently have relationships with numerous state and municipal governments.
Delinquent obligations are placed with us by our clients and we utilize a process that is similar to the student loan recovery process for recovering these
obligations.
For the Department of the Treasury, we recover government debt subrogated to it by numerous different federal agencies. The placements we are
provided represent a mix of commercial and individual obligations. We are one of four contractors for the most recent Treasury contract.
We also provide risk management advisory services that enable these clients to proactively manage loan portfolios and reduce the incidence of defaulted
loan assets over time. Our experience suggests that proactive default prevention practices produce significant net yield and earnings gains for our clients. We
deliver these services in two forms. First, we contact and consult with borrowers to implement a repayment program, including payment through automatic debit
arrangements, prior to the beginning of the repayment period in order to increase the likelihood that payments begin on time. Second, we offer a service that
involves contacting delinquent borrowers in an effort to cure the delinquency prior to the loan entering default.
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Analytics Capabilities
For several years, we have leveraged our data analytics tools to help filter, identify audit claims and recover delinquent and defaulted assets and improper
payments as part of our core services platform. Through our data analytics capabilities, which we refer to as Performant Insight, we are able to review, aggregate,
and synthesize very large volumes of structured and unstructured data, at high speeds, from the initial intake of disparate data sources, to the warehousing of the
data, to the analysis and reporting of the data. We believe we have built a differentiated, next-generation “end-to-end” data processing solution that will maximize
value for current and future customers.
Performant Insight provides numerous benefits for our audit and recovery services platform. Performant Insight has not only enhanced our existing
recovery services under our RAC contracts and other private healthcare contracts by analyzing significantly higher volumes of healthcare claims at faster rates and
reducing our cycle time to review and assess healthcare claims, but has also enabled us to develop improved and more sophisticated business intelligence rules that
can be applied to our audit processes. We believe our analytics capabilities will extend our potential markets, permitting us to pursue significant new business
opportunities. We have expanded the use of our data analytics capabilities in the healthcare sector to offer a variety of services from post and pre-payment audit of
healthcare claims in both the public and private healthcare sector, to detection of fraud, waste and abuse of healthcare claims, to coordination of benefits and
pharmacy fraud detection.
Our Clients
We provide our services across a broad range of government and private clients in several markets.
Guaranty Agencies
We restructure and recover defaulted student loans issued by private lenders and backed by GAs under the FFELP. As a result of the transition from
FFELP to FDSLP that commenced in 2010, the volume of defaulted student loans managed by the GAs has begun to decline over the last few years and is
expected to continue to decline. When a borrower stops making regular payments on a FFELP loan, the GA is obligated to reimburse the lender approximately
97% of the loan’s principal and accrued interest. GAs then seek to recover and restructure these obligations. The GAs with which we contract generally structure
one to three-year initial term contracts with multiple renewal periods.
We have a relationship with 14 GAs in the U.S. either as clients or through our contracts with ECMC and Navient; these relationships average more than
eight years in length. On June 15, 2017, we received a termination notice from one of our significant GA clients, Great Lakes Higher Education Guaranty
Corporation (Great Lakes). The termination of this contract was based on Great Lakes' decision to bundle its student loan servicing work, a service that we
currently do not provide, along with its student loan recovery work to a single third-party vendor. In September 2017, we entered into a contract with Navient, who
is now servicing the Great Lakes portfolio, to act as a recovery subcontractor on the Great Lakes' portfolio. This contract has no set term, and Navient has the right
to terminate the contract at will.
CMS
Our relationship with CMS extends beyond ten years in duration. Under our first RAC contract with CMS, which was awarded in 2009 and expired in
2016, we were responsible for identifying and facilitating the recovery of improper Part A and Part B Medicare payments in the Northeast region of the United
States. On January 31, 2018, CMS issued to us their final Letter of Demand which reconciled all outstanding payables to CMS for the old Region A contract.
Accordingly, we released an aggregate of approximately $27.8 million and $0.6 million of the estimated liability for appeals and the Net payable to client balances,
during the first quarter and third quarter of 2018, respectively. This increased first quarter 2018 revenue by $27.8 million and third quarter revenue by $0.6 million.
In conjunction with the release, we also derecognized approximately $9.0 million of prepaid expenses and other current assets, with a charge to other operating
expenses, reflecting accrued receivables associated with amounts due to us from our subcontractors for decided and yet-to-be decided appeals. In October 2016, we
were awarded two new RAC contracts. We received the contract to audit improper payments for claims made under Medicare Parts A and B in Region 1, which
consists of Connecticut, Michigan, Indiana, Maine, Massachusetts, New Hampshire, New York, Ohio, Kentucky, Rhode Island and Vermont, and the contract for
Region 5, which involves post-payment review of claims related to DMEPOS and home health and hospice across the U.S. The fees that we receive for identifying
improper payments from CMS under these contracts are entirely contingency-based, and the contingency-fee percentage depends on the methods of recovery, and,
in some cases, the type of improper payment that we identify. Our audit activity on the new RAC contracts is limited at this time to approximately 0.5% of claims;
however, CMS has indicated that there may be an opportunity to increase the audit activity percentage based on provider error rates. Additionally, in October 2017
we were awarded the national exclusive MSP CRC contract by CMS. Under this MSP CRC contract, we are responsible for identifying and recovering payments in
situations where Medicare should not be the primary payer of healthcare claims because a beneficiary
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has other forms of insurance coverage, such as through an employer group health plan or certain other payers. In February of 2018 we commenced operations on
the MSP CRC contract with activity increasing during the year.
Department of Education
We have provided student loan recovery services to the Department of Education for approximately 25 years; the Department of Education had
historically been our largest or one of our largest clients, accounting for 15.5%, 23.8%, and 27.2% of our revenues in 2016, 2015 and 2014, respectively. However,
following the expiration of our most recent contract in April 2015, and the subsequent decline of student loan placement volumes, revenues from the Department of
Education fell to 4% of our 2017 revenues. Although the Department of Education announced in January 2018 that we were selected as one of two recovery
contractors under its award for new student loan recovery contracts, no work was completed under that contract and we were subsequently notified on May 3, 2018
that the Department of Education had decided to cancel the current procurement in its entirety, and as a result terminated our contract award.
Private Healthcare
In the private healthcare market, we utilize our technology-enabled services platform to provide audit, recovery and analytical services for private
healthcare payers. Our experience from our RAC contracts has helped establish our presence in the private healthcare market by providing us the opportunity to
provide audit and recovery services for several national commercial health plans. Our audit and analytics capabilities have allowed us not only to expand our
services with these initial private healthcare clients, but also gain entry into other related private healthcare opportunities.
U.S. Department of the Treasury
We have assisted the Department of the Treasury for over 20 years in the recovery of delinquent receivables owed to a number of different federal
agencies. The debt obligations we help to recover on behalf of the Department of the Treasury include commercial and individual debt obligations. We are one of
the six firms servicing the current Department of the Treasury contract. Similar to our other recovery contracts, our fees under this contract are contingency-based.
We view this as an important strategic relationship, as it provides us valuable insight into other business opportunities within the federal government.
State Tax Agencies
We provide recovery services for individuals’ delinquent state tax obligations on a hosted model. We currently have relationships with a number of state
governments.
Private Lenders
We provide recovery services for private student loans, which supplement federally guaranteed loans, and home mortgages to private lenders.
Additionally, with the burgeoning personal loan industry we believe there is more opportunity for us to expand services into this private sector.
Internal Revenue Service
In September 2016 the Internal Revenue Service, or IRS, announced it plans to begin private collection of certain federal tax debts starting in 2017 and
awarded us a contract to perform these recovery services. The new program, authorized under a federal law enacted by Congress, enables us, along with three other
contractors to collect, on the government’s behalf, outstanding inactive tax receivables. Our ability to recover these receivables will be limited to accounts where
taxpayers owe money, but the IRS is no longer actively working their accounts. Although the initial placement volumes were low when we commenced work
under this contract in April 2017 reflecting the IRS’s objective of a methodical contract start, by the end of 2018, the number of placements of federal tax
receivables we received from the IRS more than doubled from what we had processed in 2017.
Sales and Marketing
Our new business opportunities have historically been driven largely by referrals and natural extensions of our existing client relationships, as well as a
targeted outreach by our sales team and senior management. Our sales cycles are often lengthy, and demand high levels of attention from our senior management.
At any point in time, we are typically focused on a limited number of potentially significant new business opportunities. As a result, to date, we have operated with
a small staff of experienced individuals with responsibility for developing new sales, relying heavily upon our executive staff, including an appropriate sales and
marketing team covering various markets.
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Technology Operations
Our technology center is based in Livermore, California, with a redundant capacity in our Grants Pass, Oregon office. Additionally, Performant Insight,
our data analytics business, is supported by staff in Sunrise, Florida. We have designed our infrastructure for scalability and redundancy, which allows us to
continue to operate in the event of an outage at either datacenter. We maintain an information systems environment with advanced network security intrusion
detection and prevention with 24x7 monitoring and security incident response capabilities. We utilize encryption technologies to protect sensitive data on our
systems, all data during transmission and all data on redundancy or backup media. We also maintain a comprehensive enterprise wide information security
program based on industry standards such as NIST 800-53 and PCI/DSS.
Competition
We face significant competition in all aspects of our business. In recovery services for delinquent and defaulted assets, we face competition from a
number of companies. Holders of these delinquent and defaulted assets typically engage several firms simultaneously to provide recovery services on different
portions of their portfolios. The number of recovery firms engaged varies by client. Initially, we compete to be one of the retained firms in a competitive bidding
process and, if we are successful, we then face continuing competition from the client’s other retained firms based on the client’s benchmarking of the recovery
performance of its several vendors. Some clients will allocate additional placements to those recovery vendors producing the highest recovery rates. We believe
that we primarily compete on the basis of recovery rate performance, as well as maintenance of high standards of recovery practices and data security capabilities.
We believe that we compete favorably with respect to these factors as evidenced by our long-standing relationships with our clients in these markets. Pricing is not
usually a major competitive factor as all recovery services vendors in these markets typically receive the same contingency-based fee rate.
In the audit and recovery of improper healthcare payments, we face competition in the bidding process for commercial healthcare contracts, and the RAC
contracts awarded by CMS. However, based on our structured, highly professional and effective recovery process within the healthcare market, we believe these
are contracts for which we are uniquely qualified. This qualification allows us to compete more effectively for contracts such as the MSP CRC contract, which we
were awarded in October 2017. In the most recent RAC bidding process, the identified competitive factors were demonstrated experience in effective recovery
services in the healthcare market, sufficient capacity to address claims volumes, maintenance of high standards of recovery practices, financial capability to
perform under the RAC contract and recovery fee rates. In the commercial healthcare space, those same factors are generally applicable. Our competition in the
private healthcare arena includes the other RAC service providers, Health Management Systems, Inc. and Cotiviti, LLC, and a variety of healthcare consulting and
healthcare information services companies. Many of these companies have greater financial, technological and other resources than we do.
Government Regulation
The nature of our business requires that we adhere to a complex array of federal and state laws and regulations. These include the Health Insurance
Portability and Accountability Act, or HIPAA, the Fair Debt Collection Practices Act, or FDCPA, the Fair Credit Reporting Act, or FCRA, the rules and
regulations established by the Consumer Financial Protection Bureau, or CFPB, and related state laws. We are also governed by a variety of state laws that regulate
the collection, use, disclosure and protection of personal information. We have implemented and maintain physical, technical and administrative safeguards
intended to protect all personal data and we have processes in place to assist us in complying with applicable laws and regulations regarding the protection of this
data. Our compliance efforts include training of personnel and monitoring our systems and personnel.
HIPAA and Related State Laws
Our Medicare recovery business subjects us to compliance with HIPAA and various related state laws that contain substantial restrictions and
requirements with respect to the use and disclosure of an individual’s protected health information. HIPAA prohibits us from using or disclosing an individual’s
protected health information unless the use or disclosure is authorized by the individual or is specifically required or permitted under HIPAA. Under HIPAA, we
must establish administrative, physical and technical safeguards to protect the confidentiality, integrity and availability of electronic protected health information
maintained or transmitted by us or by others on our behalf. We are required to notify affected individuals and government authorities of data security breaches
involving unsecured protected health information. The Department of Health and Human Services Office of Civil Rights enforces HIPAA privacy violations; CMS
enforces HIPAA security violations and the Department of Justice enforces criminal violations of HIPAA. We are subject to statutory penalties for violations of
HIPAA.
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Most states have enacted patient confidentiality laws that protect against the unauthorized disclosure of confidential medical information, and many states
have adopted or are considering further legislation in this area, including privacy safeguards, security standards and data security breach notification requirements.
These state laws, if more stringent than HIPAA requirements, are not preempted by the federal requirements, and we must comply with them even though they
may be subject to different interpretations by various courts and other governmental authorities. In addition, numerous other state laws govern the collection,
dissemination, use, access to and confidentiality of individually identifiable health and healthcare provider information.
Our compliance efforts include the encryption of protected health information that we hold and the development of procedures to detect, investigate and
provide appropriate notification if protected health information is compromised. Our employees and contractors receive initial and periodic supplemental training
and are tested to ensure compliance. As part of our certification and accreditation process, we must undergo audits by federal agencies as noted below. CMS
regularly audits us for, among other items, compliance with their security standards.
Privacy Act of 1974
The Privacy Act of 1974 governs the collection, use, storage, destruction and disclosure of personal information about individuals by a government
agency and extends to government contractors who have access to agency records performing services for government agencies. The Privacy Act requires
maintenance of a code of conduct for employees with access to the agency records addressing the obligations under the Privacy Act, training of employees and
discipline procedures for noncompliance. The Privacy Act also requires adopting and maintaining appropriate administrative, technical and physical safeguards to
insure the security and confidentiality of records and to protect against any anticipated threats or hazards to their security or integrity.
As a contractor to federal government agencies we are required to comply with the Privacy Act of 1974. Our compliance effort includes initial and
ongoing training of employees and contractors in their obligations under the Privacy Act. In addition, we have implemented and maintain physical, technical and
administrative safeguards and processes intended to protect all personal data consistent with or exceeding our obligations under the Privacy Act.
Certification, Accreditation and Security
Business services that collect, store, transmit or process information for United States government agencies and organizations are required to undergo a
rigorous certification and accreditation process to ensure that they operate at an acceptable level of security risk. As a government contractor, we currently have
Authority to Operate, or ATO, licenses from both the Department of Education and CMS.
We maintain a comprehensive enterprise-wide information security program based on industry standards such as NIST 800-53 and PCI/DSS. In addition,
we hold SSAE – SOC 1 Type II certification, which provides assurance to auditors of third parties that we maintain the necessary controls and procedures to
effectively manage third party data. We undergo an independent audit by our government agency clients on the award of the contract and periodically thereafter.
We also conduct periodic self-assessments.
Our regulatory compliance group is charged with the responsibility of ensuring our regulatory compliance and security. All our facilities have security
perimeter controls with segregated access by security clearance level. The information systems environment maintains advanced network security intrusion
detection and prevention with 24x7 monitoring and security incident response capabilities. We utilize encryption technologies to protect sensitive data on our
systems, all data during transmission and all data on redundancy or backup media. Employees undergo background and security checks appropriate to their
position. This can include security clearances by the Federal Bureau of Investigation. We also maintain compliant disaster recovery and business continuity plans,
annually conduct two table top disaster exercises, conduct routine security risk assessments and maintain a continuous improvement process as part of our security
risk mitigation and management activity.
FDCPA and Related State Laws
The FDCPA regulates persons who regularly collect or attempt to collect, directly or indirectly, consumer debts owed or asserted to be owed to another
person. Certain of our debt recovery and loan restructuring activities may be subject to the FDCPA. The FDCPA establishes specific guidelines and procedures that
debt recovery firms must follow in communicating with consumer debtors, including the time, place and manner of such communications. Further, it prohibits
harassment or abuse by debt recovery firms, including the threat of violence or criminal prosecution, obscene language or repeated telephone calls made with the
intent to abuse or harass. The FDCPA also places restrictions on communications with individuals other than
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consumer debtors in connection with the collection of any consumer debt and sets forth specific procedures to be followed when communicating with such third
parties for purposes of obtaining location information about the consumer. In addition, the FDCPA contains various notice and disclosure requirements and
prohibits unfair or misleading representations by debt recovery firms. Finally, the FDCPA imposes certain limitations on lawsuits to collect debts against
consumers.
Prior to the adoption of amendments to the FDCPA as part of the Dodd-Frank Act, no federal agency had the authority to issue interpretative regulations
for the FDCPA. As a result, judicial determinations and non-binding interpretative positions issued by the Federal Trade Commission under the FDCPA created
compliance difficulties for the consumer debt collections industry. With the adoption of the amendments to the FDCPA as part of the Dodd-Frank Act in 2011,
however, as well as specific statutory authority to issue implementing regulations for the FDCPA, primary jurisdiction for the FDCPA was transferred to the
Consumer Financial Protection Bureau, or CFPB. Subsequently, the CFPB has indicated that it may issue proposed regulations under the FDCPA.
Debt recovery activities are also regulated at the state level. Most states have laws regulating debt recovery activities in ways that are similar to, and in
some cases more stringent than, the FDCPA. In addition, some states require debt recovery firms to be licensed.
Our compliance efforts include written procedures for compliance with the FDCPA and related state laws, employee training and monitoring, auditing
client calls, periodic review, testing and retraining of employees, and procedures for responding to client complaints. In all states where we operate, we believe that
we currently hold all required state licenses or are exempt from licensing. Violations of the FDCPA may be enforced by the U.S. Federal Trade Commission, or
FTC, or by a private action by an individual or class. Violations of the FDCPA are deemed to be an unfair or deceptive act under the Federal Trade Commission
Act, which can be punished by fines for each violation. Class action damages can total up to one percent of the net worth of the entity violating the statute.
Attorney fees and costs are also recoverable. In the ordinary course of business, we are sued for alleged violations of the FDCPA and comparable state laws,
although the amounts involved in the disposition or settlement of any such claims have not been significant.
TCPA
The Telephone Consumer Protection Act, or TCPA, regulates the initiation of calls (which includes text messages) to residential or cellular telephones,
including the use of automatic telephone dialing systems as well as artificial or prerecorded voices. The TCPA requires callers to obtain prior express consent or, in
some cases, prior express written consent from individuals before placing restricted calls. Our compliance efforts include confirming a consumer has provided
prior express consent consistent with the requirements of the law. Violations of the TCPA may be enforced by the U.S. Federal Communications Commission, or
FCC, or by a private action by an individual or class. Violations of the TCPA can be punished by recovery of damages or penalties up to $1,500 per violation for
willful violations. Attorney fees and costs are also recoverable. In the ordinary course of business, we are sued for alleged violations of the TCPA and comparable
state laws, although the amounts involved in the disposition or settlement of any such claims have not been significant.
FCRA
We are also subject to the Fair Credit Reporting Act, or FCRA, which regulates consumer credit reporting and which may impose liability on us to the
extent that the adverse credit information reported on a consumer to a credit bureau is false or inaccurate. State law, to the extent it is not preempted by the FCRA,
may also impose restrictions or liability on us with respect to reporting adverse credit information. Our compliance efforts include initial and ongoing training of
employees working with consumer credit reports and the monitoring of usage. Violations of FCRA, which are deemed to be unfair or deceptive acts under the
Federal Trade Commission Act, are enforced by the FTC or by a private action by an individual or class. Civil actions by consumers may seek damages per
violation, with punitive damages, attorney's fees and costs also recoverable. Under the Federal Trade Commission Act, penalties for engaging in unfair or
deceptive acts can be punished by fines for each violation.
CFPB
The CFPB was created as part of the Dodd-Frank Act in 2011, with primary implementing and interpretative authority for many federal consumer
protection laws, for example the FDCPA, transferred to the CFPB. Among other things, the CFPB was given the authority to issue interpretive regulations for the
FDCPA.
In addition to its authority in regard to federal consumer protection laws, the CFPB was also provided direct jurisdiction over certain consumer financial
service providers. In October of 2012, the CFPB issued a rule asserting direct jurisdiction over large consumer debt collectors, which includes debt collectors with
annual assets of more than $10 million. In accordance with the calculations included in this rule, we are subject to direct jurisdiction of the CFPB and in the future
may be
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directly examined and supervised by the CFPB. In that regard, the CFPB has also released examination guidance that its examiners will use when reviewing
compliance by debt collectors subject to its direct supervision .
The CFPB focuses on service providers involved in collecting debt related to any consumer financial product from committing unfair, deceptive, or
abusive acts or practices, or UDAAPs, in violation of the Dodd-Frank Act. UDAAPs include actions that are unfair and likely to cause substantial injury to
consumers, deceptive actions that mislead or likely to mislead a consumer and abusive acts that interfere with the ability of a consumer to understand a term or
condition of a consumer financial product or takes unreasonable advantage of a consumer’s lack of understanding of a consumer financial product. Although
abusive acts or practices may also be unfair or deceptive, each of these prohibitions are separate and distinct, and are governed by separate legal standards. Original
creditors and other covered persons and service providers involved in collecting debt related to any consumer financial product or service are subject to the
prohibition against UDAAPs. The CFPB has indicated that it will continue to review closely the practices of those engaged in the collection of consumer debts for
potential UDAAPs in violation of the Dodd-Frank Act.
State Law Compliance and Security Breach Response
Many states impose an obligation on any entity that holds personally identifiable information or health information to adopt appropriate security to protect
such data against unauthorized access, misuse, destruction, or modification. All fifty states and the District of Columbia have enacted laws requiring holders of
personal information to take certain actions in response to data breach incidents, such as providing prompt notification of the breach to affected individuals and
government authorities, and in some cases offering credit monitoring services. In many cases, these laws are limited to electronic data, but states are increasingly
enacting or considering stricter and broader requirements. Massachusetts has enacted a regulation that requires any entity that holds, transmits or collects certain
personal information about its residents to adopt a written data security plan meeting the requirements set forth in the statute. We have implemented and
maintained physical, technical and administrative safeguards intended to protect all personal data and have processes in place to assist us in complying with
applicable laws and regulations regarding the protection of this data and properly responding to any security incidents. We have adopted a system security plan and
security breach incident response plans to address our compliance with these laws.
Intellectual Property
Our intellectual property is a significant component of our business, including, most notably, the intellectual property underlying our proprietary
technology-enabled services platform through which we provide our defaulted asset recovery and other services. To protect our intellectual property, we rely on a
combination of intellectual property rights, including patents, trade secrets, trademarks and copyrights. We also utilize customary confidentiality and other
contractual protections, including employee and third-party confidentiality and invention assignment agreements.
As of December 31, 2018, we had two U.S. patents, both covering aspects of the workflow management systems and methods incorporated into our
technology-enabled services platform. These patents will expire in September 2024. We routinely assess appropriate occasions for seeking additional patent
protection for those aspects of our platform and other technologies that we believe may provide competitive advantages to our business. We also rely on certain
unpatented proprietary expertise and other know-how, licensed and acquired third-party technologies, and continuous improvements and other developments of our
various technologies, all intended to maintain our leadership position in the industry.
As of December 31, 2018, we had six trademarks registered with the U.S. Patent and Trademark office: DCS, Performant Recovery, Performant
Technologies, Discovery Analytics, Performant Insight, and Premiere Credit.
We have registered copyrights covering various copyrighted material relevant to our business. We also have unregistered copyrights in many components
of our software systems. We may not be able to use these unregistered copyrights to prevent misappropriation of such content by unauthorized parties in the future;
however, we rely on our extensive information technology security measures and contractual arrangements with employees and third-party contractors to minimize
the opportunities for any such misuse of this content.
We are not subject to any material intellectual property claims alleging that we infringe, misappropriate or otherwise violate the intellectual property
rights of any third party, nor have we asserted any material intellectual property infringement claim against any third party.
Employees
As of December 31, 2018 , we had approximately 1,892 full-time employees. None of our employees is a member of a labor union and we consider our
employee relations to be good.
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Available Information
The SEC maintains an Internet site at http://www.sec.gov that contains our Annual Report on Form 10-K, quarterly reports on Form 10-Q, current reports
on Form 8-K and amendments to those reports, if any, or other filings filed or furnished pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of 1934,
as amended, or the Exchange Act, proxy and information statements.
15
ITEM 1A. Risk Factors
Our business, financial condition, results of operations and liquidity are subject to various risks and uncertainties, including those described below, and as
a result, the trading price of our common stock could decline.
Risks Related to Our Business
Revenues generated from our three largest clients represented 61% of our revenues in 2018 and 63% of our revenues in 2017. Our relationships with one of
these clients, Great Lakes Higher Education Guaranty Corporation, was terminated in 2017. Any termination of or deterioration in our relationship with any
of our other significant clients would result in a further decline in our revenues.
We have derived a substantial majority of our revenues from a limited number of clients. Revenues from our three largest clients represented 61% of our
revenues for the year ended December 31, 2018 and 63% of our revenues for the year ended December 31, 2017. We have had relationships with numerous GAs in
the U.S. including Pennsylvania Higher Education Assistance Authority and Great Lakes, which were responsible for 17% and 17%, respectively, of our revenues
for the year ended December 31, 2018. On June 15, 2017, we received a 30-day termination notice with respect to our contract with Great Lakes, based on Great
Lakes’ decision to bundle with a single third-party vendor its student loan servicing work, a service that we currently do not provide, along with its student loan
recovery work. While we subsequently obtained a subcontract for student loan recovery work from Navient, the new provider of servicing and defaulted portfolio
management to Great Lakes, this contract has no set term or volume, and Navient has the right to terminate the contract at will. Because the Department of
Education terminated our January 2018 contract and the current procurement in its entirety, we now will become even more dependent on our business
relationships with our remaining GA clients for our student loan revenues. In that regard, we believe that the portfolios of our GA clients will continue to decrease
over time due to (i) the effect of federal legislation in 2010 that requires all student loan originations to come from the Department of Education (which means that
there will be no further growth in student loans held by GAs), and (ii) because we are seeing a larger amount of defaulted student loans in our GA client portfolios
that have been previously rehabilitated and by regulation are not subject to rehabilitation for a second time. All of our contracts with our significant clients are
subject to periodic renewal and re-bidding processes and if we lose one of these clients or if the terms of our relationships with any of these clients become less
favorable to us, our revenues would decline, which would harm our business, financial condition and results of operations.
Many of our contracts with our clients for the recovery of student loans and other receivables are not exclusive and do not commit our clients to provide
specified volumes of business. In addition, the terms of these contracts may be changed unilaterally and on short notice by our clients. As a consequence, there
is no assurance that we will be able to maintain our revenues and operating results.
Substantially all of our existing contracts for the recovery of student loans and other receivables, which represented approximately 64% of our revenues
for the year ended December 31, 2018 and 92% of our revenues in the year ended December 31, 2017, enable our clients to unilaterally terminate their contractual
relationship with us at any time without penalty, potentially leading to loss of business or renegotiation of terms. Further, most of our contracts in these markets
allow our clients to unilaterally change the volume of loans and other receivables that are placed with us or the payment terms at any given time. In addition, most
of our contracts are not exclusive, with our clients retaining multiple service providers with whom we must compete for placements of loans or other obligations.
Therefore, despite our contractual relationships with our clients, our contracts do not provide assurance that we will generate a minimum amount of revenues or
that we will receive a specific volume of placements. Our revenues and operating results would be negatively affected if our student loan and receivables clients
reduce the volume of student loan placements provided to us, modify the terms of service, including the success fees we are able to earn upon recovery of defaulted
student loans, or any of these clients establish more favorable relationships with our competitors.
We typically face a long period to implement a new contract which may cause us to incur expenses before we receive revenues from new client relationships.
If we are successful in obtaining an engagement with a new client or a new contract with an existing client, we typically have a subsequent long
implementation period in which the services are planned in detail and we integrate our technology, processes and resources with the client’s operations. If we enter
into a contract with a new client, we typically will not receive revenues until implementation is completed and work under the contract actually begins. Our clients
may also experience delays in obtaining approvals or managing protests from unsuccessful bidders, or delays associated with technology or system
implementations, such as the delays experienced with the implementation of our first RAC contract with CMS. Because we generally begin to hire new employees
to provide services to a new client once a contract is signed, we may incur
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significant expenses associated with these additional hires before we receive corresponding revenues under any such new contract. If we are not successful in
maintaining contractual commitments after the expenses we incur during our typically long implementation cycle, our cash flows and results of operations could be
adversely affected.
We may not have sufficient cash flows from operations and availability of funds under our credit agreement to fund our ongoing operations and our other
liquidity needs, which could adversely affect our business and financial condition.
Our ability to fund our business plans, capital expenditures and to fund our other liquidity needs depends on our financial and operating performance,
which is subject to prevailing economic and competitive conditions and to certain financial, business and other factors beyond our control. We cannot make
assurances that we will maintain a level of cash flows from operating activities sufficient to permit us to fund our ongoing and planned business operations and to
fund our other liquidity needs. If our cash flows and capital resources are insufficient to fund our planned business operations or to fund our other liquidity needs,
we may be forced to reduce or delay capital expenditures, alter our business plans, sell assets or operations, seek additional capital or restructure or refinance our
indebtedness, any of which could have an adverse effect on our financial condition and results of operations.
Our indebtedness could adversely affect our business and financial condition and reduce the funds available to us for other purposes, and our failure to
comply with the covenants contained in our Credit Agreement could result in an event of default that could adversely affect our results of operations.
Our ability to make scheduled payments under our credit agreement and to fund our other liquidity needs depends on our financial and operating
performance, which is subject to prevailing economic and competitive conditions and to certain financial, business and other factors beyond our control. We cannot
make assurances that we will maintain a level of cash flows from operating activities sufficient to permit us to pay the principal and interest on our indebtedness
and to fund our other liquidity needs. If our cash flows and capital resources are insufficient to fund our debt service obligations and allow us to maintain
compliance with the covenants under our Credit Agreement or to fund our other liquidity needs, we may be forced to reduce or delay capital expenditures, sell
assets or operations, seek additional capital or restructure or refinance our indebtedness. We cannot ensure that we would be able to take any of these actions, that
these actions would be successful and permit us to meet our scheduled debt service obligations or that these actions would be permitted under the terms of our
existing or future debt agreements, including our Credit Agreement with ECMC. If we cannot make scheduled payments on our debt, we will be in default and, as
a result, our debt holders could declare all outstanding principal and interest to be due and payable, the lenders under our Credit Agreement could terminate their
commitments to lend us money and foreclose against the assets securing our borrowings and we could be forced into bankruptcy or liquidation.
Our debt agreement contains, and any agreements to refinance our debt likely will contain, certain financial and restrictive covenants that limit our ability
to incur additional debt, including to finance future operations or other capital needs, and to engage in other activities that we may believe are in our long-term best
interests, including to dispose of or acquire assets. Our failure to comply with these covenants may result in an event of default, which, if not cured or waived,
could accelerate the maturity of our indebtedness or result in modifications to our credit terms. If our indebtedness is accelerated, we may not have sufficient cash
resources to satisfy our debt obligations and we may not be able to continue our operations as planned.
Our ability to derive revenues under our new RAC contracts will depend in part on the number and types of potentially improper claims that we are allowed to
pursue by CMS, and our results of operations may be harmed if the scope of claims that we are allowed to pursue and be compensated for is limited.
Under CMS’s Medicare recovery audit program, RAC contractors have not been permitted to seek the recovery of an improper claim unless that
particular type of claim has been pre-approved by CMS to ensure compliance with applicable Medicare payment policies, as well as national and local coverage
determinations. As work under the first RAC contract progressed, CMS placed increasing restrictions on the scope of audits permitted by RAC contractors and
these restrictions have not been relaxed under the newly awarded RAC contracts. Accordingly, the long-term growth of the revenues we derive under our two
newly awarded RAC contracts will depend in significant part on the scope of potentially improper claims that we are allowed to pursue. Revenues from our RAC
contracts with CMS during the year ended December 31,2018 were $1.7 million (excluding the effects of the release of the $28.4 million appeal reserve in
connection with the termination of our first CMS RAC contract).
In particular, in September 2013, CMS implemented rules that prevent RAC contractors from being able to review and audit (i) whether inpatient care
delivered to patients with hospital stays lasting less than two midnights was medically necessary
17
and therefore deserving of the higher reimbursement levels under Medicare Part A or (ii) whether inpatient treatment was medically necessary for admissions
spanning more than two midnights. In connection with these restrictions, hospitals cannot bill CMS for outpatient services on hospital stays lasting less than two
midnights during such period. Fees associated with recoveries initiated by us based upon improper claims for inpatient reimbursement of these short stays had
represented a substantial portion of the revenues we had earned under our prior RAC contract. The continued suspension of this type of review activity has had and
may continue to have a material adverse effect on our future healthcare revenues and operating results, depending on a variety of factors including, among other
things, CMS’s evaluation of provider compliance with the new rules, the rules ultimately adopted by CMS with respect to medical necessity reviews of Medicare
reimbursement claims associated with short stay inpatient admissions and, more generally, the scope of improper claims that CMS allows us to pursue and our
ability to successfully identify improper claims within the permitted scope.
We may not be able to manage our potential growth effectively and our results of operations could be negatively affected.
Our newly awarded RAC contracts, MSP CRC contract, and other commercial healthcare contracts provide the potential opportunity to restore the growth
in our recovery businesses. However, our focus on growth and the expansion of our business may place additional demands on our management, operations and
financial resources and will require us to incur additional expenses. We cannot be sure that we will be able to manage our performance under any significant new
contracts effectively. In order to successfully perform under any significant new contracts, our expenses will increase to recruit, train and manage additional
qualified employees and subcontractors and to expand and enhance our administrative infrastructure and continue to improve our management, financial and
information systems and controls. If we cannot manage our growth effectively, our expenses may increase and our results of operations could be negatively
affected.
We face significant competition in connection with obtaining, retaining and performing under our client contracts, and an inability to compete effectively in
the future could harm our relationships with our clients, which would impact our ability to maintain our revenues and operating results.
We operate in very competitive markets. In providing our services to the student loan and other receivables markets, we face competition from many
other companies. Initially, we compete with these companies to be one of typically several firms engaged to provide recovery services to a particular client and, if
we are successful in being engaged, we then face continuing competition from the client’s other retained firms based on the client’s benchmarking of the recovery
rates of its several vendors. In addition, those recovery vendors who produce the highest recovery rates from a client often will be allocated additional placements
and in some cases additional success fees. Accordingly, maintaining high levels of recovery performance, and doing so in a cost-effective manner, are important
factors in our ability to maintain and grow our revenues and net income and the failure to achieve these objectives could harm our business, financial condition and
results of operations. Some of our current and potential competitors in the markets in which we operate may have greater financial, marketing, technological or
other resources than we do. The ability of any of our competitors and potential competitors to adopt new and effective technology to better serve our markets may
allow them to gain market strength. Increasing levels of competition in the future may result in lower recovery fees, lower volumes of contracted recovery services
or higher costs for resources. Any inability to compete effectively in the markets that we serve could adversely affect our business, financial condition and results
of operations.
The U.S. federal government accounts for a significant portion of our revenues, and any loss of business from, or change in our relationship with, the U.S.
federal government would result in a significant decrease in our revenues and operating results.
We have historically derived and are likely to continue to derive a significant portion of our revenues from the U.S. federal government. For the year
ended December 31, 2018, revenues under contracts with the U.S. federal government accounted for approximately 35% of our total revenues. The continuation
and exercise of renewal options on government contracts and any new government contracts are, among other things, contingent upon the availability of adequate
funding for the applicable federal government agency. Changes in federal government spending could directly affect our financial performance.
For example, although the Department of Education announced in January 2018 that we were selected as one of two recovery contractors under its award
for new student loan recovery contracts, we were notified on May 3, 2018 that the Department of Education has decided to cancel the current procurement in its
entirety, and as a result terminated our contract award. Protests have been filed by certain of the unsuccessful bidders of the procurement of the new contracts from
the Department of Education, and at this time, we cannot speculate on the outcome of any such protest or when work will begin under our new contract award. The
loss of business from the U.S. federal government, or significant policy changes or financial
18
pressures within the agencies of the U.S. federal government that we serve would result in a significant decrease in our revenues, which would adversely affect our
business, financial condition and results of operations.
Future legislative or regulatory changes affecting the markets in which we operate could impair our business and operations.
The two principal markets in which we provide our recovery services, government-supported student loans and the Medicare program, are a subject of
significant legislative and regulatory focus and we cannot anticipate how future changes in government policy may affect our business and operations. For
example, Student Aid and Fiscal Responsibility Act, (SAFRA) significantly changed the structure of the government-supported student loan market by assigning
responsibility for all new government-supported student loan originations to the Department of Education, rather than originations by private institutions and
backed by one of the remaining 25 government-supported GAs. Any future changes in the legislation and regulations that govern these markets, may require us to
adapt our business to the new circumstances and we may be unable to do so in a manner that does not adversely affect our business and operations.
The reduction in the number of government-supported student loans originated by our GA clients may result in a lower amount of student loans that we are
able to rehabilitate, and may result in the consolidation among the GAs, either of which would decrease our revenues.
As a result of SAFRA, which terminated the ability of the GAs to originate government-supported student loans, the overall number of defaulted student
loans that we are able to service on behalf of our GA clients has begun to decline. Further, we are seeing a larger amount of defaulted student loans within our GA
client portfolios that have previously been rehabilitated, which, according to current regulations, prevents us from rehabilitating any such student loan for a second
time. This overall reduction in the number of defaulted student loans in our GA client portfolios, and the larger percentage of defaulted student loans that have been
previously rehabilitated, may result in a decrease in revenues from our GA clients, which could negatively impact our business, financial condition and results of
operations.
Further, some have speculated that there may be consolidation among the remaining GAs. This speculation has heightened as a result of the reduction of
fees that the GAs will receive for rehabilitating student loans as a result of the Bipartisan Budget Act of 2013. If GAs that are our clients are combined with GAs
with whom we do not have a relationship, we could suffer a loss of business. Two of our GA clients: Great Lakes and Pennsylvania Higher Education Assistance
Authority were responsible for 17% and 17%, respectively, of revenues for the year ended December 31, 2018. The consolidation of our GA clients with others
and the failure to provide recovery services to the consolidated entity could decrease our revenues, which could negatively impact our business, financial condition
and results of operations.
Our results of operations may fluctuate on a quarterly or annual basis and cause volatility in the price of our stock.
Our revenues and operating results could vary significantly from period-to-period and may fail to match our past performance because of a variety of
factors, some of which are outside of our control. Any of these factors could cause the price of our common stock to fluctuate. Factors that could contribute to the
variability of our operating results include:
• the amount of defaulted student loans and other receivables that our clients place with us for recovery;
• the timing of placements of student loans and other receivables which are entirely in the discretion of our clients;
• the schedules of government agencies for awarding contracts;
• our ability to maintain contractual commitments after the expenses we incur during our typically long implementation cycle for new customer contracts;
• our ability to successfully identify improper Medicare claims and the number and type of potentially improper
claims that CMS authorizes us to pursue under our RAC contact;
• our ability to continue to generate revenues under our private healthcare contracts;
• the loss or gain of significant clients or changes in the contingency fee rates or other significant terms of our
business arrangements with our significant clients;
• technological and operational issues that may affect our clients and regulatory changes in the markets we service;
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and
• general industry and macroeconomic conditions.
Downturns in domestic or global economic conditions and other macroeconomic factors could harm our business and results of operations.
Various macroeconomic factors influence our business and results of operations. These include the volume of student loan originations in the United
States, together with tuition costs and student enrollment rates, the default rate of student loan borrowers, which is impacted by domestic and global economic
conditions, rates of unemployment and similar factors, and the growth in Medicare expenditures resulting from changes in healthcare costs. For example, during
the global financial crisis beginning in 2008, the market for securitized student loan portfolios was disrupted, resulting in delays in the ability of some GA clients
to resell rehabilitated student loans and, as a result, delays our ability to recognize revenues from these rehabilitated loans. Changes in the overall economy could
lead to a reduction in overall recovery rates by our clients, which in turn could adversely affect our business, financial condition and results of operations.
A failure of our operating systems or technology infrastructure, or those of our third-party vendors and subcontractors, could disrupt the operation of our
business.
A failure of our operating systems or technology infrastructure, or those of our third-party vendors and subcontractors, could disrupt our operations. Our
operating systems and technology infrastructure are susceptible to damage or interruption from various causes, including acts of God and other natural disasters,
power losses, computer systems failures, Internet and telecommunications or data network failures, operator error, computer viruses, losses of and corruption of
data and similar events. The occurrence of any of these events could result in interruptions, delays or cessations in service to our clients, reduce the attractiveness
of our recovery services to current or potential clients and adversely impact our financial condition and results of operations. While we have backup systems in
many of our operating facilities, an extended outage of utility or network services may harm our ability to operate our business. Further, the situations we plan for
and the amount of insurance coverage we maintain for losses as result of failures of our operating systems and infrastructure may not be adequate in any particular
case.
If our security measures are breached or fail and unauthorized access is obtained to our clients’ confidential data, our services may be perceived as insecure,
the attractiveness of our recovery services to current or potential clients may be reduced, and we may incur significant liabilities.
Our recovery services involve the storage and transmission of confidential information relating to our clients and their customers, including health,
financial, credit, payment and other personal or confidential information. Although our data security procedures are designed to protect against unauthorized access
to confidential information, our computer systems, software and networks may be vulnerable to unauthorized access and disclosure of our clients’ confidential
information. Further, we may not effectively adapt our security measures to evolving security risks, address the security and privacy concerns of existing or
potential clients as they change over time, or be compliant with federal, state, and local laws and regulations with respect to securing confidential information.
Unauthorized access to confidential information relating to our clients and their customers could lead to reputational damage which could deter our clients and
potential clients from selecting our recovery services, or result in termination of contracts with those clients affected by any such breach, regulatory action, and
claims against us.
In the event of any unauthorized access to personal or other confidential information, we may be required to expend significant resources to investigate
and remediate vulnerabilities in our security procedures, and we may be subject to fines, penalties, litigation costs, and financial losses that are either not insured
against or not fully covered through any insurance maintained by us. If one or more of such failures in our security and privacy measures were to occur, our
business, financial condition and results of operations could suffer.
Our business may be harmed if we lose members of our management team or other key employees.
We are highly dependent on members of our management team and other key employees and our future success depends in part on our ability to retain
these people. Our inability to continue to attract and retain members of our management team and other key employees could adversely affect our business,
financial condition and results of operations.
The growth of our healthcare business will require us to hire and retain employees with specialized skills and failure to do so could harm our ability to grow
our business.
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The growth of our healthcare business will depend in part on our ability to recruit, train and manage additional qualified employees. Our healthcare-
related operations require us to hire registered nurses and experts in Medicare coding. Finding, attracting and retaining employees with these skills is a critical
component of providing our healthcare-related recovery and audit services, and our inability to staff these operations appropriately represents a risk to our
healthcare service offering and associated revenues. An inability to hire qualified personnel, particularly to serve our healthcare clients, may restrain the growth of
our business.
We rely on subcontractors to provide services to our clients and the failure of subcontractors to perform as expected could harm our business operations and
our relationships with our clients.
We engage subcontractors to provide certain services to our clients. These subcontractors participate to varying degrees in our recovery activities with
regards to all of the services we provide. While we believe that we perform appropriate due diligence before we hire subcontractors, our subcontractors may not
provide adequate service or otherwise comply with the terms set forth in their agreements. In the event a subcontractor provides deficient performance to one or
more of our clients, any such client may reduce the volume of services we are providing under an existing contract or may terminate the relevant contract entirely
and we may face claims for breach of contract. Any such disruption in our relations with our clients as a result of services provided by any of our subcontractors
could adversely affect our revenues and operating results.
If our software vendors or utility and network providers fail to deliver or perform as expected our business operations could be adversely affected.
Our recovery services depend in part on third-party providers, including software vendors and utility and network providers. Our ability to service our
clients depends on these third-party providers meeting our expectations and contractual obligations in a timely and effective manner. Our business could be
materially and adversely affected, and we might incur significant additional liabilities, if the services provided by these third-party providers do not meet our
expectations or if they terminate or refuse to renew their relationships with us on similar contractual terms.
We are subject to extensive regulations regarding the use and disclosure of confidential personal information and failure to comply with these regulations
could cause us to incur liabilities and expenses.
We are subject to a wide array of federal and state laws and regulations regarding the use and disclosure of confidential personal information and security.
For example, the federal Health Insurance Portability and Accountability Act of 1996 (HIPAA), as amended, and related state laws subject us to substantial
restrictions and requirements with respect to the use and disclosure of the personal health information that we obtain in connection with our contracts with CMS
and we must establish administrative, physical and technical safeguards to protect the confidentiality of this information. Similar protections extend to the type of
personal financial and other information we acquire from our student loan, state tax and federal receivables clients. We are required to notify affected individuals
and government agencies of data security breaches involving protected health and certain personally identifiable information. These laws and regulations also
require that we develop, implement and maintain written, comprehensive information security programs containing safeguards that are appropriate to protect
personally identifiable information or health information against unauthorized access, misuse, destruction or modification. Federal law generally does not preempt
state law in the area of protection of personal information, and as a result we must also comply with state laws and regulations. Regulation of privacy, data use and
security require that we incur significant expenses, which could increase in the future as a result of additional regulations, all of which adversely affects our results
of operations. Failure to comply with these laws and regulations can result in penalties and in some cases expose us to civil lawsuits.
Our student loan recovery business is subject to extensive regulation and consumer protection laws and our failure to comply with these regulations and laws
may subject us to liability and result in significant costs.
Our student loan recovery business is subject to regulation and oversight by various state and federal agencies, particularly in the area of consumer
protection. The Fair Debt Collection Practices Act(FDCPA), and related state laws provide specific guidelines that we must follow in communicating with holders
of student loans and regulates the manner in which we can recover defaulted student loans. Some state attorney generals have been active in this area of consumer
protection regulation. We are subject, and may be subject in the future, to inquiries and audits from state and federal regulators, as well as frequent litigation from
private plaintiffs regarding compliance under the FDCPA and related state regulations. We are also subject to the Fair Credit Reporting Act(FCRA), which
regulates consumer credit reporting and may impose liability on us to the extent adverse credit information reported to a credit bureau is false or inaccurate. Our
compliance with the FDCPA, FCRA and other federal and state regulations that affect our student loan recovery business may result in significant costs, including
21
litigation costs. We may also become subject to regulations promulgated by the United States Consumer Financial Protection Bureau(CFPB), which was
established in July 2011 as part of the Dodd-Frank Act to, among other things, establish regulations regarding consumer financial protection laws. In addition, the
CFPB has investigatory and enforcement authority with respect to whether persons are engaged in unlawful acts or practices in connection with the collection of
consumer debts.
Litigation may result in substantial costs of defense, damages or settlement, any of which could subject us to significant costs and expenses.
We are party to lawsuits in the normal course of business, particularly in connection with our student loan recovery services. For example, we are
regularly subject to claims that we have violated the guidelines and procedures that must be followed under federal and state laws in communicating with consumer
debtors. We may not ultimately prevail or otherwise be able to satisfactorily resolve any pending or future litigation, which may result in substantial costs of
defense, damages or settlement. In the future, we may be required to alter our business practices or pay substantial damages or settlement costs as a result of
litigation proceedings, which could adversely affect our business operations and results of operations.
If we are unable to adequately protect our proprietary technology, our competitive position could be harmed, or we could be required to incur significant costs
to enforce our rights.
The success of our business depends in part upon our proprietary technology platform. We rely on a combination of copyright, patent, trademark, and
trade secret laws, as well as on confidentiality procedures and non-compete agreements, to establish and protect our proprietary technology rights. The steps we
have taken to deter misappropriation of our proprietary technology may be insufficient to protect our proprietary information. In particular, we may not be able to
protect our trade secrets, know how and other proprietary information adequately. Although we use reasonable efforts to protect this proprietary information and
technology, our employees, consultants and other parties may unintentionally or willfully disclose our information or technology to competitors. Enforcing a claim
that a third party illegally obtained and is using any of our proprietary information or technology is expensive and time consuming, and the outcome is
unpredictable. We rely, in part, on non disclosure, confidentiality and invention assignment agreements with our employees, consultants and other parties to protect
our trade secrets, know how and other intellectual property and proprietary information. These agreements may not be self executing, or they may be breached and
we may not have adequate remedies for such breach. Moreover, third parties may independently develop similar or equivalent proprietary information or otherwise
gain access to our trade secrets, know how and other proprietary information. Any infringement, misappropriation or other violation of our patents, trademarks,
copyrights, trade secrets, or other intellectual property rights could adversely affect any competitive advantage we currently derive or may derive from our
proprietary technology platform and we may incur significant costs associated with litigation that may be necessary to enforce our intellectual property rights.
Claims by others that we infringe their intellectual property could force us to incur significant costs or revise the way we conduct our business.
Our competitors protect their proprietary rights by means of patents, trade secrets, copyrights, trademarks and other intellectual property. Any party
asserting that we infringe, misappropriate or violate their intellectual property rights may force us to defend ourselves, and potentially our clients, against the
alleged claim. These claims and any resulting lawsuit, if successful, could be time-consuming and expensive to defend, subject us to significant liability for
damages or invalidation of our proprietary rights, prevent us from operating all or a portion of our business or force us to redesign our services or technology
platform or cause an interruption or cessation of our business operations, any of which could adversely affect our business and operating results. In addition, any
litigation relating to the infringement of intellectual property rights could harm our relationships with current and prospective clients. The risk of such claims and
lawsuits could increase if we increase the size and scope of our services in our existing markets or expand into new markets.
We may make acquisitions that prove unsuccessful, strain or divert our resources and harm our results of operations and stock price.
We may consider acquisitions of other companies in our industry or in new markets. We may not be able to successfully complete any such acquisition
and, if completed, any such acquisition may fail to achieve the intended financial results. We may not be able to successfully integrate any acquired businesses
with our own and we may be unable to maintain our standards, controls and policies. Further, acquisitions may place additional constraints on our resources by
diverting the attention of our management from other business concerns. Moreover, any acquisition may result in a potentially dilutive issuance of equity
securities, the incurrence of additional debt and amortization of expenses related to intangible assets, all of which could adversely affect our results of operations
and stock price.
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The price of our common stock could be volatile, and you may not be able to sell your shares at or above the public offering price.
Since our initial public offering in August 2012, the price of our common stock, as reported by NASDAQ Global Select Market, has ranged from a low
sales price of $1.25 on November 16, 2018 to a high sales price of $14.09 on March 4, 2013. The trading price of our common stock may be significantly affected
by various factors, including: quarterly fluctuations in our operating results; the financial projections we may provide to the public, any changes in those
projections or our failure to meet those projections; changes in investors’ and analysts’ perception of the business risks and conditions of our business; our ability
to meet the earnings estimates and other performance expectations of financial analysts or investors; unfavorable commentary or downgrades of our stock by
equity research analysts; changes in our capital structure, such as future issuances of debt or equity securities; our success or failure to obtain new contract awards;
lawsuits threatened or filed against us; strategic actions by us or our competitors, such as acquisitions or restructurings; new legislation or regulatory actions;
changes in our relationship with any of our significant clients; fluctuations in the stock prices of our peer companies or in stock markets in general; and general
economic conditions.
Our significant stockholders have the ability to influence significant corporate activities and our significant stockholders' interests may not coincide with
yours.
Parthenon Capital Partners and Invesco Ltd. beneficially owned approximately 25.5% and 19.3% of our common
stock, respectively, as of December 31, 2018. As a result of their ownership, Parthenon Capital Partners and Invesco Ltd. have the ability to influence the outcome
of matters submitted to a vote of stockholders and, through our board of directors, the ability to influence decision making with respect to our business direction
and policies. Parthenon Capital Partners and Invesco Ltd. may have interests different from our other stockholders’ interests and may vote in a manner adverse to
those interests. Matters over which Parthenon Capital Partners and Invesco Ltd. can, directly or indirectly, exercise influence include:
• mergers and other business combination transactions, including proposed transactions that would result in our
stockholders receiving a premium price for their shares;
• other acquisitions or dispositions of businesses or assets;
• incurrence of indebtedness and the issuance of equity securities;
• repurchase of stock and payment of dividends; and
• the issuance of shares to management under our equity incentive plans.
In addition, Parthenon Capital Partners has a contractual right to designate a number of directors proportionate to its stock ownership. Further, under our
amended and restated certificate of incorporation, Parthenon Capital Partners does not have any obligation to present to us, and Parthenon Capital Partners may
separately pursue, corporate opportunities of which it becomes aware, even if those opportunities are ones that we would have pursued if granted the opportunity.
Anti-takeover provisions contained in our certificate of incorporation and bylaws could impair a takeover attempt that our stockholders may find beneficial.
Our amended and restated certificate of incorporation and amended and restated bylaws contain provisions that could have the effect of rendering more
difficult or discouraging an acquisition deemed undesirable by our board of directors. Our corporate governance documents include the following provisions:
establishing a classified board of directors so that not all members of our board are elected at one time; providing that directors may be removed by stockholders
only for cause; authorizing blank check preferred stock, which could be issued with voting, liquidation, dividend and other rights superior to our common stock;
limiting the ability of our stockholders to call and bring business before special meetings and to take action by written consent in lieu of a meeting; limiting our
ability to engage in certain business combinations with any “interested stockholder,” other than Parthenon Capital Partners, for a three-year period following the
time that the stockholder became an interested stockholder; requiring advance notice of stockholder proposals for business to be conducted at meetings of our
stockholders and for nominations of candidates for election to our board of directors; requiring a super majority vote for certain amendments to our amended and
restated certificate of incorporation and amended and restated bylaws; and limiting the determination of the number of directors on our board of directors and the
filling of vacancies or newly created seats on the board, to our board of directors then in office. These provisions, alone or together, could have the effect of
delaying or deterring a change in control, could limit the opportunity for our stockholders to receive a premium for their shares of our common stock, and could
also affect the price that some investors are willing to pay for our common stock.
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Table of Contents
ITEM 1B. Unresolved Staff Comments
None.
ITEM 2. Properties
Facilities
As of December 31, 2018 , we operated seven separate office locations throughout the United States. The largest of these facilities is in Livermore,
California and serves as our corporate headquarters, as well as a data center and production location. Our Livermore facility is comprised of approximately 50,000
square feet of space and has a lease expiration of November 2022. We also lease production centers in California, Oregon, Florida and Texas and own a
production/data center in Oregon.
We believe that our facilities are adequate for current operations and that additional space will be available as required. See Note 6 to our consolidated
financial statements included elsewhere in this Annual Report on Form 10-K for information regarding our lease obligations.
ITEM 3. Legal Proceedings
We are involved in various legal proceedings that arise from our normal business operations. These actions generally derive from our student loan
recovery services, and generally assert claims for violations of the Fair Debt Collection Practices Act or similar federal and state consumer credit laws. While
litigation is inherently unpredictable, we believe that none of these legal proceedings, individually or collectively, will have a material adverse effect on our
financial condition or our results of operations.
ITEM 4. Mine Safety Disclosures
Not applicable.
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Table of Contents
PART II
ITEM 5. Market for Registrant’s Common Equity, Related Stockholder Matters and Issuer Purchases of Equity Securities
Trading Symbol
Shares of Performant currently trade on the NASDAQ under the trading symbol PFMT.
Stockholders
As of December 31, 2018 , we had approximately 22 holders of record of our common stock.
Dividends
Our board of directors does not currently intend to pay regular dividends on our common stock. Our Credit Agreement contains a covenant prohibiting the
payment of cash dividends.
Securities Authorized for Issuance Under Equity Compensation Plans
Information regarding the securities authorized for issuance under our equity compensation plans can be found under Item 12 of this Annual Report on
Form 10-K.
Issuer Purchases of Equity Securities
None.
ITEM 6. Selected Financial Data
The selected consolidated balance sheet data as of December 31, 2018 and 2017 , and the selected consolidated statements of operations data for each
year ended December 31, 2018 , 2017 and 2016 , have been derived from our audited consolidated financial statements which are included elsewhere in this annual
report. The selected consolidated balance sheet data as of December 31, 2016 , 2015 and 2014 , and the selected consolidated statements of operations data for the
years ended December 31, 2015 and 2014 have been derived from our audited consolidated financial statements not included in this annual report. Historical
results are not necessarily indicative of future results. You should read the following selected consolidated historical financial data below in conjunction with the
section titled “Management’s Discussion and Analysis of Financial Condition and Results of Operations” and the consolidated financial statements, related notes,
and other financial information included in this Annual Report on Form 10-K. The selected consolidated financial data in this section is not intended to replace the
consolidated financial statements and is qualified in its entirety by the consolidated financial statements and related notes and schedule included in this Annual
Report on Form 10-K.
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Table of Contents
Consolidated Statement of Operations Data:
Revenues
Operating expenses:
Salaries and benefits
Other operating expense
Impairment of goodwill and intangible assets
Total operating expenses
Income (loss) from operations
Interest expense
Interest income
Income (loss) before provision for income taxes
Provision for (benefit from) income taxes
Net income (loss) available to common shareholders
Net income (loss) per share attributable to common
shareholders (1)
Basic
Diluted
Weighted average shares (in thousands)
Basic
Diluted
2018
2017
Year Ended December 31,
2016
(in thousands)
2015
2014
$
155,668 $
132,049 $
141,360 $
159,381 $
195,378
96,144
58,333
2,988
82,191
55,863
1,081
78,863
54,985
15,438
88,077
64,360
236
157,465
139,135
149,286
152,673
(1,797)
(4,699)
28
(6,468)
1,542
(8,010)
(7,086)
(6,972)
4
(14,054)
(1,325)
(12,729)
(7,926)
(7,897)
—
(15,823)
(4,370)
(11,453)
6,708
(8,889)
—
(2,181)
(386)
(1,795)
$
$
(0.15) $
(0.15) $
(0.25) $
(0.25) $
(0.23) $
(0.23) $
(0.04) $
(0.04) $
52,064
52,064
50,688
50,688
50,038
50,038
49,415
49,415
93,676
74,433
—
168,109
27,269
(10,171)
1
17,099
7,699
9,400
0.19
0.19
48,816
49,834
(1) Please see Note 1 to our consolidated financial statements for an explanation of the calculations of our basic and diluted net income per share of
common stock.
2018
2017
As of December 31,
2016
(in thousands)
2015
2014
Consolidated Balance Sheet Data:
Cash and cash equivalents
$
5,462 $
21,731 $
Total assets
Total debt
Total liabilities
Total stockholders’ equity
137,759
45,800
60,533
77,226
164,436
44,000
84,111
80,325
32,982 $
185,078
55,182
98,833
86,245
71,182 $
244,656
94,258
150,800
93,856
80,298
262,829
111,795
171,657
91,172
ITEM 7. Management’s Discussion and Analysis of Financial Condition and Results of Operations
Overview
We provide technology-enabled audit, recovery, outsource services, and related analytics services in the United States. Our services help identify
improper payments, and in some markets, restructure and recover delinquent or defaulted assets and improper payments for both government and private clients in
a broad range of markets. Our clients typically operate in complex and regulated environments and outsource their audit and recovery needs in order to reduce
losses on billions of dollars of defaulted student loans, improper healthcare payments and delinquent state and federal tax and federal treasury and other
receivables. We also provide complex outsource services for clients across our various markets, where we handle many or all aspects of our clients’ audit and
recovery processes.
Our revenue model is generally success-based as we earn fees on the aggregate correct audits and/or amount of funds that we enable our clients to
recover. Our services do not require any significant upfront investments by our clients and offer
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our clients the opportunity to recover significant funds otherwise lost. Because our model is based upon the success of our efforts, our business objectives are
aligned with those of our clients and we are generally not reliant on their spending budgets. Furthermore, our business model does not require significant capital as
we do not purchase loans or obligations.
Sources of Revenues
We derive our revenues from services for clients in a variety of different markets. These markets include our two largest markets, student lending and
healthcare, as well as our other markets which include but are not limited to delinquent state and federal taxes and federal treasury and other receivables.
Year Ended December 31,
2018
2017
(in thousands)
2016
Student Lending:
Great Lakes Higher Education Guaranty Corporation
$
26,702 $
46,090 $
All Other Guaranty Agencies
Total of Student Lending
Healthcare:
CMS RAC and MSP CRC (1)
Commercial
Total of Healthcare
Other (2)
Total Revenues
39,796
66,498
41,859
14,088
55,947
33,223
48,215
94,305
1,437
8,549
9,986
27,758
36,956
72,609
109,565
5,733
5,662
11,395
20,400
$
155,668 $
132,049 $
141,360
(1)
Includes $28.4 million related to the termination of the 2009 CMS Region A contract
(2) Represents outsource services, tax, and IRS
Student Lending
Our revenues from the student lending market are contract-based and consist primarily of contingency fees based on a specified percentage of the amount
we enable our clients to recover. Our contingency fee percentage for a particular recovery depends on the type of recovery facilitated. Our clients in the student
loan recovery market mainly consist of several of the largest guaranty agencies, or GAs. We believe the size and the composition of our student loan inventory at
any point provides us with a significant degree of revenue visibility for our student loan revenues. Based on data compiled from over two decades of experience
with the recovery of defaulted student loans, at the time we receive a placement of student loans, we are able to make a reasonably accurate estimate of the
recovery outcomes likely to be derived from such placement and the revenues we are likely able to generate based on the anticipated recovery outcomes.
Our key metric in evaluating our student lending business is Placement Volume. Our Placement Volume represents the dollar volume of defaulted student
loans first placed with us during the specified period by public and private clients for recovery. Placement Volume allows us to measure and track trends in the
amount of inventory our clients in the student lending market are placing with us during any period. The revenues associated with the recovery of a portion of these
loans may be recognized in subsequent accounting periods, which assists management in estimating future revenues and in allocating resources necessary to
address current Placement Volumes. The following table shows our Placement Volume for the year ended December 31, 2018, 2017 and 2016, showing separately
the Placement Volume associated with student loans held by Great Lakes for which we served as the primary recovery contractor until September 2017 and since
that time as a subcontractor to Navient, the primary servicer of the Great Lakes portfolio.
Student Lending Placement Volume:
Great Lakes Higher Education Guaranty Corporation
All Other Guaranty Agencies
Total Student Lending Placement Volume
27
Year Ended December 31,
2018
2017
(in thousands)
2016
$
$
5,848 $
751,964 $
2,565,852
2,018,815
2,571,700 $
2,770,779 $
860,359
2,313,563
3,173,922
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There are five potential outcomes to the student loan recovery process from which we generate revenues. These outcomes include: full repayment,
recurring payments, rehabilitation, loan restructuring and wage garnishment. Of these five potential outcomes, our ability to rehabilitate defaulted student loans is
the most significant component of our revenues in this market. Generally, a loan is considered successfully rehabilitated after the student loan borrower has made
nine consecutive qualifying monthly payments and our client has notified us that it is recalling the loan. Once we have structured and implemented a repayment
program for a defaulted borrower, we (i) earn a percentage of each periodic payment collected up to and including the final periodic payment prior to the loan
being considered “rehabilitated” by our clients, and (ii) if the loan is “rehabilitated,” then we are paid a one-time percentage of the total amount of the remaining
unpaid balance for each rehabilitated loan. The fees we are paid vary by recovery outcome as well as by contract. For non-government-supported student loans we
are generally only paid contingency fees on two outcomes: full repayment or recurring repayments. The table below describes our typical fee structure for each of
these five outcomes.
Student Loan Recovery Outcomes
Full Repayment
Recurring Payments
• Repayment in full of the
loan
• Regular structured
payments, typically according
to a renegotiated payment
plan
Rehabilitation
• After a defaulted borrower
has made nine consecutive
recurring payments, the loan
is eligible for rehabilitation
Loan Restructuring
• Restructure and
consolidate a number of
outstanding loans into a
single loan, typically with
one monthly payment and an
extended maturity
• We are paid a percentage of
the full payment that is made
• We are paid a percentage
of each payment
• We are paid based on a
percentage of the overall
value of the rehabilitated loan
• We are paid based on a
percentage of overall value of
the restructured loan
Wage Garnishment
• If we are unable to obtain
voluntary repayment,
payments may be obtained
through wage garnishment
after certain administrative
requirements are met
• We are paid a percentage
of each payment
Our revenues from student lending were approximately 29% lower in the year ended December 31, 2018 compared to the same period in 2017 primarily
as a result of the change in our relationship with Great Lakes, for which we acted as the primary recovery contractor until September 2017 and as a subcontractor
on a portion of the overall portfolio since that time.
Healthcare
We derive revenues from both commercial and government clients in the healthcare market. Revenues earned under these contracts are driven by
auditing, identifying, and sometimes recovering improperly paid claims through both automated and manual review of such claims. We are paid contingency fees
by our clients based on a percentage of the dollar amount of improper claims recovered as a result of our efforts. The revenues we recognize are net of our estimate
of claims that we believe will be overturned by appeal following payment by the provider.
On October 5, 2017, we announced that we were awarded the MSP CRC contract by the CMS. Under this agreement, we are responsible for identifying
and recovering payments in situations where Medicare should not be the primary payer of healthcare claims because a beneficiary has other forms of insurance
coverage, such as through an employer group health plan or certain other payers.
On October 26, 2016, CMS awarded new RAC contracts and we received RAC contracts for audit Regions 1 and 5. The RAC contract award for Region
1 allows us to continue our audit of payments under Medicare’s Part A and Part B for all provider types other than DMEPOS and home health and hospice within
an 11 state region in the Northeast and Midwest. The Region 5 RAC contract provides for the post-payment review of DMEPOS and home health and hospice
claims nationally. While audit and recovery activity under the new contracts commenced in April 2017, the scope of audit permitted by CMS under the new RAC
contracts has been limited to 0.5% of claims. We do not expect to recognize significant revenues from the newly awarded RAC contracts until the percentage of
claims we are able to audit increases from the current 0.5% of the claims.
We accrue an estimated liability for appeals based on the amount of commissions received which are subject to appeal and which we estimate are
probable of being returned to providers following successful appeal. The $18.5 million balance as of December 31, 2017, represented our best estimate of the
probable amount that we may be required to refund related to appeals of claims for which commissions were previously collected. The term of our first Medicare
Recovery Audit Contract with CMS, for Region A, expired on January 31, 2018. Our estimates for this appeals liability are based on our historical experience
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with the Medicare RAC appeal process. As the term of the original contract expired, CMS issued a letter to us on January 2, 2018, stating that Performant will no
longer be obligated to support the appeals process or maintain an appeal reserve after the January 31, 2018 contract termination date. In addition to the estimated
liability for appeals, we also maintained a separate net payable to client liability for appeals decisions which had been decided, but not yet refunded to CMS. On
January 31, 2018, CMS issued to us their final Letter of Demand which reconciled all outstanding payables to CMS for the old Region A contract. Accordingly, we
released an aggregate of approximately $27.8 million and $0.6 million of the estimated liability for appeals and the net payable to client balances, during the first
quarter and third quarter of 2018, respectively. This increased first quarter 2018 revenue by $27.8 million and third quarter revenue by $0.6 million. In conjunction
with the release, we also derecognized approximately $9.0 million of prepaid expenses and other current assets, with a charge to other operating expenses,
reflecting accrued receivables associated with amounts due to us from our subcontractors for decided and yet-to-be decided appeals. As a result, we no longer have
any estimated liability for appeals relating to our first CMS contract. We have accrued $0.2 million of additional estimated liability for appeals related to other
healthcare contracts at December 31, 2018.
For our commercial healthcare business, our business strategy is focused on utilizing our technology-enabled services platform to provide audit, recovery
and analytical services for private healthcare payers. We have entered into contracts with several private payers, although these contracts are in the early stage of
implementation. Revenues from our commercial healthcare clients were $14.1 million for 2018 compared to revenues of $8.5 million that we earned from our
commercial healthcare clients in 2017 .
Other
We also derive revenues from the recovery of delinquent state and federal taxes, and federal treasury and other receivables, default aversion and/or first
party call center services for certain clients and the licensing of hosted technology solutions to certain clients. For our hosted technology services, we license our
system and integrate our technology into our clients’ operations, for which we are paid a licensing fee. Our revenues for these services include contingency fees,
fees based on dedicated headcount to our clients and hosted technology licensing fees.
Costs and Expenses
We generally report two categories of operating expenses: salaries and benefits and other operating expense. Salaries and benefits expenses consist
primarily of salaries and performance incentives paid and benefits provided to our employees. Other operating expense includes expenses related to our use of
subcontractors, other production related expenses, including costs associated with data processing, retrieval of medical records, printing and mailing services,
amortization and other outside services, as well as general corporate and administrative expenses.
Factors Affecting Our Operating Results
Our results of operations are influenced by a number of factors, including allocation of placement volume, claim recovery volume, contingency fees,
regulatory matters, client retention and macroeconomic factors.
Allocation of Placement Volume
Our clients have the right to unilaterally set and increase or reduce the volume of defaulted student loans or other receivables that we service at any given
time. In addition, many of our recovery contracts for student loans and other receivables are not exclusive, with our clients retaining multiple service providers to
service portions of their portfolios. Accordingly, the number of delinquent student loans or other receivables that are placed with us may vary from time to time,
which may have a significant effect on the amount and timing of our revenues. We believe the major factors that influence the number of placements we receive
from our clients in the student loan market include our performance under our existing contracts and our ability to perform well against competitors for a particular
client. To the extent that we perform well under our existing contracts and differentiate our services from those of our competitors, we may receive a relatively
greater number of placements under these existing contracts and may improve our ability to obtain future contracts from these clients and other potential clients.
Further, delays in placement volume, as well as acceleration of placement volume, from any of our large clients may cause our revenues and operating results to
vary from quarter to quarter.
Typically, we are able to anticipate with reasonable accuracy the timing and volume of placements of defaulted student loans and other receivables based
on historical patterns and regular communication with our clients. Occasionally, however, placements are delayed due to factors outside of our control.
Contingency Fees
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Our revenues consist primarily of contract-based contingency fees. The contingency fee percentages that we earn are set by our clients or agreed upon
during the bid process and may change from time to time either under the terms of existing contracts or pursuant to the terms of contract renewals.
Regulatory Matters
Each of the markets which we serve is highly regulated. Accordingly, changes in regulations that affect the types of loans, receivables and claims that we
are able to service or the manner in which any such delinquent loans, receivables and claims can be recovered will affect our revenues and results of operations.
For example, the passage of the Student Aid and Fiscal Responsibility Act, or SAFRA, in 2010 had the effect of transferring the origination of all government-
supported student loans to the Department of Education, thereby ending all student loan originations guaranteed by the GAs. Loans guaranteed by the GAs
represented approximately 70% of government-supported student loans originated in 2009. While the GAs will continue to service existing outstanding student
loans for years to come, this legislation means that there will be no further growth in student loans held by GAs. Further, we are seeing a larger amount of
defaulted student loans in our GA client portfolios that have been previously rehabilitated and by regulation are not subject to rehabilitation for a second time. In
addition, our entry into the healthcare market was facilitated by passage of the Tax Relief and Health Care Act of 2006, which mandated CMS to contract with
private firms to audit Medicare claims in an effort to increase the recovery of improper Medicare payments. Any changes to the regulations that affect the student
loan industry or the recovery of defaulted student loans or the Medicare program generally or the audit and recovery of Medicare claims could have a significant
impact on our revenues and results of operations.
Client Contract Cancellation
Substantially all of our contracts entitle our clients to unilaterally terminate their contractual relationship with us at any time without penalty. If we lose
one or more of our significant clients, including if one of our significant clients is consolidated by an entity that does not use our services, if the terms of
compensation for our services change or if there is a reduction in the level of placements provided by any of these clients, our revenues could decline.
Macroeconomic Factors
Certain macroeconomic factors influence our business and results of operations. These include the increasing volume of student loan originations in the
U.S. as a result of increased tuition costs and student enrollment, the default rate of student loan borrowers, the growth in Medicare expenditures resulting from
increasing healthcare costs, as well as the fiscal budget tightening of federal, state and local governments as a result of general economic weakness and lower tax
revenues.
Critical Accounting Policies
Our consolidated financial statements are prepared in accordance with generally accepted accounting principles in the United States, or U.S. GAAP. The
preparation of these consolidated financial statements requires us to make estimates and assumptions that affect the reported amounts of assets, liabilities,
revenues, costs and expenses and related disclosures. We base our estimates on historical experience and on various other assumptions that we believe to be
reasonable under the circumstances. In many instances, we could have reasonably used different accounting estimates, and in other instances changes in the
accounting estimates are reasonably likely to occur from period-to-period. Accordingly, actual results could differ significantly from the estimates made by our
management. To the extent that there are material differences between these estimates and actual results, our future financial statement presentation, financial
condition, results of operations and cash flows will be affected. We believe that the accounting policies discussed below are critical to understanding our historical
and future performance, as these policies relate to the more significant areas involving management’s judgments and estimates.
Revenue Recognition
In May 2014, the FASB issued an ASU that amends the FASB ASC by creating a new Topic 606, Revenue
from
Contracts
with
Customers
. We adopted
Topic 606 as of January 1, 2018, utilizing the full retrospective method of transition. We applied Topic 606 retrospectively for all reporting periods presented
before January 1, 2018, the date of the initial application. There was no impact of adopting Topic 606 on our 2017 and 2016 consolidated financial statements.
We derive our revenues primarily from providing recovery services. Revenues are recognized when control of these services is transferred to our
customers, in an amount that reflects the consideration we expect to be entitled to in exchange for those services.
We determine revenue recognition through the following steps:
•
Identification of the contract with a customer
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•
•
•
•
Identification of the performance obligations in the contract
Determination of the transaction price
Allocation of the transaction price to the performance obligations in the contract
Recognition of revenue when, or as, the performance obligations are satisfied
We account for a contract when it has approval and commitment from both parties, the rights of the parties are identified, payment terms are identified,
the contract has commercial substance and collectability of consideration is probable.
Our contracts generally contain a single performance obligation, delivered over time as a series of services that are substantially the same and have the
same pattern of transfer to a client, as the promise to transfer the individual services is not separately identifiable from other promises in the contracts and,
therefore, not distinct. For contracts with multiple performance obligations, we allocate the contract’s transaction price to each performance obligation using our
best estimate of the standalone selling price of each distinct service in the contract. We determine the standalone selling prices by taking into consideration the
value of the services being provided, the client type and how similar services are priced in other contracts on a standalone basis.
Our contracts are composed primarily of variable consideration. Fees earned under our recovery service contracts consist primarily of contingency fees
based on a specified percentage of the amount we enable our clients to recover. The contingency fee percentage for a particular recovery depends on the type of
recovery or claim facilitated. In certain contracts we can earn additional performance-based consideration determined based on its performance relative to a client’s
other contractors providing similar services.
Revenue from contingency fees earned upon recovery of funds is generally recognized as amounts are invoiced based on either the ‘as-invoiced’ practical
expedient when such amounts reflect the value of the services completed to-date, or an output metric used to measure progress of the satisfaction of its
performance obligation. We estimate any performance-based variable consideration and recognizes such revenue over the performance period only if it is probable
that a significant reversal in the amount of cumulative revenue recognized will not occur. Under certain contracts, consideration can include periodic performance-
based bonuses which can be awarded based on our performance under the specific contract. These performance-based awards are considered variable and may be
constrained by us until there is not a risk of a material reversal.
For contracts that contain a refund right, these amounts are considered variable consideration, and we estimate our refund liability for each claim and
recognizes revenue net of such estimate.
We generally either apply the as-invoiced practical expedient where our right to consideration corresponds directly to our right to invoice our clients, or
the variable consideration allocation exception where the variable consideration is attributable to one or more, but not all, of the services promised in a series of
distinct services that form part of a single performance obligation. As such, we have elected the optional exemptions related to the as-invoiced practical expedient
and the variable consideration allocation exception whereby the disclosure of the amount of transaction price allocated to the remaining performance obligations is
not required.
We have applied the as-invoiced practical expedient and the variable consideration allocation exception to contracts with performance obligations that
have an average remaining duration of less than a year.
Revenue is recognized upon the collection of defaulted loan and debt payments. Loan rehabilitation revenue is recognized when the rehabilitated loans are
sold (funded) by clients. Incentive revenue is recognized upon receipt of official notification of incentive award from customers. Under our MSP CRC contract
with CMS, we recognize revenues when insurance companies or other responsible parties remit payment to reimburse CMS for claims for which they are
responsible, and the remittance has been applied in the CMS database. Under our RAC contracts with CMS, we recognize revenues when the healthcare provider
has paid CMS for a claim or has agreed to an offset against other claims by the provider. Under other healthcare contracts, we may recognize revenue upon
delivering the results of claims audits, when sufficient reliable information is available to us for estimating the variable consideration earned, as it is a reasonable
measure of our progress toward complete satisfaction of our performance obligation.
Healthcare providers have the right to appeal a claim and may pursue additional level of appeals if the initial appeal is found in favor of CMS. We accrue
an estimated liability for appeals at the time revenue is recognized based on our estimate of the amount of revenue probable of being returned to CMS following
successful appeal based on historical data and other trends relating to such appeals. In addition, if our estimate of liability for appeals with respect to revenues
recognized during a prior period changes, we increase or decrease the estimated liability for appeals in the current period.
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This estimated liability for appeals is an offset to revenues on our income statement. Resolution of appeals can take a very long time to resolve and there
is a significant backlog in the system for resolving appeals, as over the course of our existing RAC contract, healthcare providers have increased their pursuit of
appeals beyond the first and second levels of appeal to the third level of appeal, where cases are heard by administrative law judges, or ALJs. In our experience,
decisions at the third level of appeal are the least favorable as ALJs exercise greater discretion and there is less predictability in the ALJ decisions as compared to
appeals at the first or second levels. This increase of ALJ appeals and backlog of claims at the third level of appeal is the primary reason our total estimated
liability for appeals (consisting of the estimated liability for appeals plus the contra-accounts-receivable estimated allowance for appeals) has historically remained
at a consistent level despite decreasing revenue from CMS. On January 31, 2018, CMS issued to us their final Letter of Demand which reconciled all outstanding
payables to CMS for the old Region A contract. Accordingly, we released an aggregate of approximately $27.8 million and $0.6 million of the estimated liability
for appeals and the Net payable to client balances, during the first quarter and third quarter of 2018, respectively. This increased first quarter 2018 revenue by
$27.8 million and third quarter revenue by $0.6 million. In conjunction with the release, we also derecognized approximately $9.0 million of prepaid expenses and
other current assets, with a charge to other operating expenses, reflecting accrued receivables associated with amounts due to us from our subcontractors for
decided and yet-to-be decided appeals. As a result, we no longer have any estimated liability for appeals relating to our first CMS contract. The Company has
accrued $0.2 million of additional estimated liability for appeals related to other healthcare contracts at December 31, 2018, which represents our best estimate of
the probable amount of losses related to appeals of claims for which commissions were previously collected. To the extent that required payments by us related to
successful appeals exceed the amount accrued, revenues in the applicable period would be reduced by the amount of the excess.
We determined that we do not have any costs related to obtaining or fulfilling a contract that are recoverable and as such, these contract costs are
expensed as incurred.
Goodwill and Other Intangible Assets
Goodwill represents the excess of purchase price and related costs over the fair value assigned to the net assets of businesses acquired. Goodwill is not
amortized, but instead is reviewed for impairment at least annually. Impairment is the condition that exists when the carrying amount of goodwill is not
recoverable and its carrying amount exceeds its fair value. We perform our assessment of whether it is more likely than not that goodwill fair value is less than its
carrying amount in November of each year to allow us additional time to evaluate our assessment prior to reporting its results. We performed a quantitative
impairment assessment of whether it is more likely than not that goodwill fair value is less than its carrying amount as of November 30, 2018, and concluded that
there was no need to impair goodwill.
Results of Operations
Year Ended December 31, 2018 compared to the Year Ended December 31, 2017
The following table represents our historical operating results for the periods presented:
Consolidated Statements of Operations Data:
Revenues
Operating expenses:
Salaries and benefits
Other operating expense
Impairment of goodwill and intangible assets
Total operating expenses
Loss from operations
Interest expense
Interest income
Loss before benefit from income taxes
Provision for (benefit from) income taxes
Net Loss
Year Ended December 31,
2018
2017
$ Change
% Change
(in thousands)
$
155,668 $
132,049 $
23,619
18 %
96,144
58,333
2,988
157,465
(1,797)
(4,699)
28
(6,468)
1,542
82,191
55,863
1,081
139,135
(7,086)
(6,972)
4
(14,054)
(1,325)
$
(8,010) $
(12,729) $
32
13,953
2,470
1,907
18,330
(5,289)
(2,273)
24
(7,586)
(2,867)
(4,719)
17 %
4 %
176 %
13 %
(75)%
(33)%
600 %
(54)%
(216)%
(37)%
Table of Contents
Revenues
Total revenues were $155.7 million for the year ended December 31, 2018 , an increase of $23.6 million or 18% , compared to total revenues of $132.0
million for the year ended December 31, 2017 .
Student lending revenues were $66.5 million for the year ended December 31, 2018 , representing a decrease of $27.8 million , or 29% , compared to the
year ended December 31, 2017 . This decrease was primarily a result of the wind down relating to Great Lakes and decrease in the number of borrowers that are
participating in the rehabilitation programs with our GA clients.
Healthcare revenues were $55.9 million for the year ended December 31, 2018 , representing an increase of $46.0 million , or 460% , compared to the
year ended December 31, 2017 . The increase in healthcare revenues attributable to our CMS RAC contract and MSP CRC was $40.4 million, and the increase
attributable to our revenues from our commercial healthcare clients was $5.5 million in 2018. This increase was due primarily to the release of $28.4 million of the
estimated liability for appeals and the net payable to client balances for the old CMS Region A contract, and the ramp up of our CMS MSP CRC contract and other
contracts with our commercial healthcare customers.
Salaries and Benefits
Salaries and benefits expense was $96.1 million for the year ended December 31, 2018 , an increase of $14.0 million , or 17% , compared to salaries and
benefits expense of $82.2 million for the year ended December 31, 2017 . The increase in salaries and benefits expense was primarily due to increased headcount
during 2018 in anticipation of ramp up of activity related to new clients and contracts and the acquisition of Premiere.
Other Operating Expense
Other operating expense was $58.3 million for the year ended December 31, 2018 , an increase of $2.5 million , or 4% , compared to other operating
expense of $55.9 million for the year ended December 31, 2017 . The increase in other operating expenses was primarily due to a $7.1 million derecognition of
subcontractor receivable associated with the termination of the 2009 CMS Region A contract, a $1.9 million allowance for doubtful accounts against subcontractor
receivable and higher rent, utilities and maintenance expenses which were offset by lower third party collection fees.
Impairment of Goodwill and Intangible Assets
Impairment of goodwill and intangible assets was $3.0 million for the year ended December 31, 2018 , an increase of $1.9 million , compared to
impairment of goodwill and intangible assets of $1.1 million for the year ended December 31, 2017 . An impairment expense of $3.0 million was recognized in
2018 relating to the write-off of the Great Lakes customer relationship intangible asset. The impairment of goodwill and intangible assets of $1.1 million that was
recognized in 2017 relates to the write-off of goodwill and intangible assets in one of our subsidiaries, Performant Europe Ltd., due to the Company's decision to
wind down activity in this business in 2017.
Loss from Operations
As a result of the factors described above, loss from operations was $1.8 million for the year ended December 31, 2018 , compared to loss from
operations of $7.1 million for the year ended December 31, 2017 , representing a decrease of $5.3 million , or 75% .
Interest Expense
Interest expense was $4.7 million for the year ended December 31, 2018 compared to $7.0 million for the year ended December 31, 2017 , representing a
decrease of 33% . Interest expense decreased due to a lower annual average principal debt balance and lower interest rates under our current Credit Agreement in
2018.
Income Taxes
The income tax provision was $1.5 million for the year ended December 31, 2018 compared to an income tax benefit of $1.3 million for the year ended
December 31, 2017 . Our effective income tax rate changed to (23%) for the year ended December 31, 2018 from 9% for the year ended December 31, 2017 . The
change in the effective tax rate is primarily driven by the current year losses for which no benefit is being recognized due to the valuation allowance.
Net Loss
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As a result of the factors described above, net loss was $8.0 million for the year ended December 31, 2018 , which represents a decrease of $4.7 million
compared to net loss of $12.7 million for the year ended December 31, 2017 .
Year Ended December 31, 2017 compared to the Year Ended December 31, 2016
The following table presents our historical operating results for the periods presented:
Consolidated Statements of Operations Data:
Revenues
Operating expenses:
Salaries and benefits
Other operating expense
Impairment of goodwill and intangible assets
Total operating expenses
Loss from operations
Interest expense
Interest income
Loss before benefit from income taxes
Benefit from income taxes
Net Loss
Revenues
Year Ended December 31,
2017
2016
$ Change
% Change
(in thousands)
$
132,049 $
141,360 $
(9,311)
82,191
55,863
1,081
139,135
(7,086)
(6,972)
4
(14,054)
(1,325)
(12,729)
78,863
54,985
15,438
149,286
(7,926)
(7,897)
—
(15,823)
(4,370)
(11,453)
3,328
878
(14,357)
(10,151)
(840)
(925)
4
(1,769)
(3,045)
1,276
(7)%
4 %
2 %
(93)%
(7)%
(11)%
(12)%
100 %
(11)%
(70)%
11 %
Total revenues were $132.0 million for the year ended December 31, 2017, a decrease of $9.3 million or 7%, compared to total revenues of $141.4
million for the year ended December 31, 2016. The decrease is due to a decline in revenues in both our student lending and healthcare markets.
Student lending revenues were $94.3 million for the year ended December 31, 2017, representing a decrease of $15.3 million, or 14%, compared to the
year ended December 31, 2016. This decrease was primarily a result of the expiration of the Department of Education contract in April 2015 and subsequent wind
down, partially offset by an increase in revenue as a result of an increase in the number of borrowers that are participating in the rehabilitation programs with our
Guaranty Agency clients.
Healthcare revenues were $10.0 million for the year ended December 31, 2017, representing a decrease of $1.4 million, or 12%, compared to the year
ended December 31, 2016. This decrease was due primarily to the wind down of our first RAC contract during 2017, offset by an approximately $2.9 million
increase in revenues from commercial healthcare customers.
Salaries and Benefits
Salaries and benefits expense was $82.2 million for the year ended December 31, 2017, an increase of $3.3 million, or 4%, compared to salaries and
benefits expense of $78.9 million for the year ended December 31, 2016. The increase in salaries and benefits expense was primarily due to increased headcount
during 2017 in anticipation of ramp up of activity related to new clients and contracts.
Other Operating Expense
Other operating expense was $55.9 million for the year ended December 31, 2017, an increase of $0.9 million, or 2%, compared to other operating
expense of $55.0 million for the year ended December 31, 2016. The increase in other operating expenses was primarily due to higher third party collection fees.
Impairment of Goodwill and Intangible Assets
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Impairment of goodwill and intangible assets was $1.1 million for the year ended December 31, 2017, a decrease of $14.4 million, compared to
impairment of goodwill and intangible assets of $15.4 million for the year ended December 31, 2016. The impairment of goodwill and intangible assets of $1.1
million that was recognized in 2017 relates to the write-off of goodwill and intangible assets in one of our subsidiaries, Performant Europe Ltd., due to the
Company's decision to wind down activity in this business in 2017. In 2016, we wrote off of $15.4 million related to the Department of Education customer
relationship intangible after the Department of Education announced in December 2016 that we would not be a recipient of the new contract awards.
Loss from Operations
As a result of the factors described above, loss from operations was $7.1 million for the year ended December 31, 2017, compared to loss from operations
of $7.9 million for the year ended December 31, 2016, representing a decrease of $0.8 million, or 11%.
Interest Expense
Interest expense was $7.0 million for the year ended December 31, 2017 compared to $7.9 million for the year ended December 31, 2016, representing a
decrease of 12%. Interest expense decreased due to repayments of principal under our prior credit agreement resulting in a lower outstanding balance in 2017.
Income Taxes
The income tax benefit was $1.3 million for the year ended December 31, 2017 compared to an income tax benefit of $4.4 million for the year ended
December 31, 2016. Our effective income tax rate decreased to 9% for the year ended December 31, 2017 from 28% for the year ended December 31, 2016. The
decrease in the effective tax rate is primarily due to a loss from operations in 2017 for which the tax benefit is not recognized due to the valuation allowance and
the accrued state income tax expense related to income from operations that is taxed in separate state jurisdictions.
Net Loss
As a result of the factors described above, net loss was $12.7 million for the year ended December 31, 2017, which represents an increase of $1.3 million
compared to net loss of $11.5 million for the year ended December 31, 2016.
Liquidity and Capital Resources
Our principal sources of liquidity are cash on hand and cash flows from operations. Cash and cash equivalents, which excludes restricted cash, totaled
$5.5 million as of December 31, 2018 . Due to our operating cash flows and our existing cash and cash equivalents and our ability to restructure both our variable
and fixed expenses, we believe that we have the ability to meet our working capital and capital expenditure needs for the foreseeable future.
The $16.3 million decrease in the balance of our cash and cash equivalents at December 31, 2018 compared with December 31, 2017 was primarily due to
our net loss, the principal and interest payments on our long-term debt and delay in timing of cash inflows from trade receivables, which was offset by delayed
draw of $4.0 million of loan proceeds in 2018.
The following table presents information regarding our cash flows for the years ended December 31, 2018 , 2017 and 2016 :
Net cash provided by (used in) operating activities
Net cash used in investing activities
Net cash provided by (used in) financing activities
Cash flows from operating activities
2018
Year Ended December 31,
2017
(in thousands)
$
(12,149) $
2,974 $
(5,360)
1,297
(7,259)
(12,677)
2016
17,784
(7,866)
(40,637)
Operating activities used $12.1 million of cash during the year ended December 31, 2018 , representing a decrease of $15.1 million, compared to cash
provided by operating activities of $3.0 million for the year ended December 31, 2017 . The decrease included a net loss of $8.0 million in 2018, an increase in
trade receivables of $6.7 million, and a decrease in the net
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payable to client of $2.9 million, which was partially offset by various working capital fluctuations such as a decrease in our income tax receivable of $6.7 million.
Operating activities provided $3.0 million of cash during the year ended December 31, 2017, representing a decrease of $14.8 million, compared to cash
provided by operating activities of $17.8 million for the year ended December 31, 2016. The decrease included a net loss of $12.7 million in 2017 and was partially
offset by various working capital fluctuations such as an increase in our income tax receivable of $4.8 million, an increase in trade receivables of $1.0 million and a
decrease in other current liabilities of $1.1 million.
Operating activities provided $17.8 million of cash during the year ended December 31, 2016, representing an increase of $1.6 million, compared to cash
provided by operating activities of $16.2 million for the year ended December 31, 2015. Our net loss of $11.5 million in 2016 includes $15.4 million of non-cash
customer-relationship impairment expense. Taking account of this non-cash expense, operating activities during 2016 provided cash at a level similar to 2015.
Additional operating cash was provided by a reduction in trade receivables of $6.5 million. These items were partially offset by various working capital
fluctuations such as an increase in our income tax receivable of $2.0 million and a decrease in net payable to client of $1.3 million.
Cash flows from investing activities
Investing activities resulted in cash outflow of $5.4 million during the year ended December 31, 2018 and was primarily for capital expenditures related to
information technology, hardware, data storage and security enhancements to our operating software offset by the working capital related to the acquisition of
Premiere .
Investing activities resulted in cash outflow of $7.3 million during the year ended December 31, 2017 and was primarily for capital expenditures related to
information technology, hardware, data storage and security enhancements to our operating software.
Investing activities resulted in cash outflow of $7.9 million during the year ended December 31, 2016 and was primarily for capital expenditures related to
information technology, data storage, hardware, telecommunication systems and security enhancements to our proprietary software.
Cash flows from financing activities
Cash provided from financing activities of $1.3 million during the year ended December 31, 2018 was primarily due to additional borrowings on notes
payable of $4.0 million, offset by the repayment of principal on outstanding debt of $2.2 million.
Cash used in financing activities of $12.7 million during the year ended December 31, 2017 was primarily due to the repayment of principal on
outstanding debt and other contractual obligations of $55.5 million, additional borrowings on notes payable of $44.0 million, and $0.9 million in debt issuance
costs for amendments to our credit agreement.
Cash used in financing activities of $40.6 million during the year ended December 31, 2016 was primarily due to the repayment of principal on
outstanding debt and other contractual obligations of $39.1 million, and $1.2 million in debt issuance costs for amendments to our credit agreement.
Restricted Cash
Restricted cash included in current assets on our consolidated balance sheet was $1.8 million as of December 31, 2018, and $1.8 million as of December
31, 2017. In November 2017, the Company deposited $1.8 million in restricted cash as collateral for new letters of credit issued to replace letters of credit
terminated under our prior credit agreement.
Long-term Debt
On August 7, 2017, we, through our wholly-owned subsidiary Performant Business Services, Inc. (the "Borrower"), entered into a credit agreement with
ECMC Group, Inc. (as amended, the “Credit Agreement”). Before the amendment described below, the Credit Agreement provided for a term loan facility in the
initial amount of $44 million (the “Initial Term Loan”) and for up to $15 million of additional term loans (“Additional Term Loans”; and together with the Initial
Term Loan, the “Loans”) which original Additional Term Loans were initially able to be drawn until the second anniversary of the funding of the Initial Term
Loans, subject to the satisfaction of customary conditions. On August 11, 2017, the Initial Term Loan was advanced (the "Closing Date") and the proceeds were
applied to repay all outstanding amounts under our prior credit agreement with Madison Capital Funding LLC as administrative agent ("the Prior Credit
Agreement"). On August 31, 2018, we entered into Amendment No. 2 to the Credit Agreement to among other things (i) extend the maturity date of the Initial
Term Loan and
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any Additional Term Loans by one year to August 2021, (ii) expand the Additional Term Loans commitment from $15 million to $25 million, (iii) extend the
period during which the Additional Term Loans can be borrowed by one year to August 2020, and (iv) relieve the Borrower from its obligation to comply with the
financial covenants in the Credit Agreement during the six fiscal quarters following the Premiere acquisition. On October 15, 2018, the Company borrowed $4
million of the $25 million available as Additional Term Loans under the Credit Agreement. As of December 31, 2018, $45.8 million was outstanding under the
Credit Agreement. On March 21, 2019, we entered into Amendment No. 3 to the Credit Agreement to among other things relieve the Borrower from its obligation
to comply with the financial covenants in the Credit Agreement until the quarter ending June 30, 2020.
We have the option to extend the maturity of the Loans for two additional one year periods, subject to the satisfaction of customary conditions. The Loans
bear interest at the one-month LIBOR rate (subject to a 1% per annum floor) plus a margin which may vary from 5.5% per annum to 10.0% per annum based on
our total debt to EBITDA ratio. Our annual interest rate at December 31, 2018, was 8.0%, and at December 31, 2017 was 8.6%. We are required to pay 5% of the
original principal balance of the Loans annually in quarterly installments and to make mandatory prepayments of the Loans with a percentage of our excess cash
flow which may vary between 75% and 0% depending on our total debt to EBITDA ratio and from the net cash proceeds of certain asset dispositions and debt not
otherwise permitted under the Credit Agreement, in each case, subject to the lender's right to decline to receive such payments. The Loans may be voluntarily
prepaid at any time, together with a prepayment premium of 1% for all voluntary prepayments prior to August 11, 2019.
The Credit Agreement contains certain restrictive financial covenants which are not effective until the quarter ending June 30, 2020, at which point, we
will be required to (1) achieve a minimum fixed charge coverage ratio of 1.0 to 1.0 through December 31, 2020, 1.25 to 1.0 through June 30, 2021, and 1.25 to 1.0
through June 30, 2022 if the maturity date of the Loans is extended until the fifth anniversary of the Closing Date and (2) maintain a maximum total debt to
EBITDA ratio of 6.00 to 1.00. The Credit Agreement also contains covenants that restrict the Company and its subsidiaries’ ability to incur certain types or
amounts of indebtedness, incur liens on certain assets, make material changes in corporate structure or the nature of its business, dispose of material assets, engage
in a change in control transaction, make certain foreign investments, enter into certain restrictive agreements, or engage in certain transactions with affiliates. The
Credit Agreement also contains various customary events of default, including with respect to change of control of the Company or its ownership of the Borrower.
The obligations under the Credit Agreement are secured by substantially all of our United States domestic subsidiaries’ assets and are guaranteed by the
Company and its United States domestic subsidiaries, other than the Borrower.
As a result of our entry into our Credit Agreement, and the repayment of all amounts owed under our Prior Credit Agreement, we wrote off debt issuance
costs related to our Prior Credit Agreement of approximately $1.0 million in August 2017.
In consideration for, and concurrently with, the extension of the Initial Term Loan in accordance with the terms of the Credit Agreement, we issued a
warrant to the lender to purchase up to an aggregate of 3,863,326 shares of the Company’s common stock (representing approximately up to 7.5% of our diluted
common stock as calculated using the “treasury stock” method as defined under U.S. GAAP for the most recent fiscal quarter, with an exercise price of $1.92 per
share (the "Exercise Price")). In connection with the October 15, 2018 Additional Term Loan borrowing of $4 million, we were required to, and did, issue a
warrant to the lender to purchase an aggregate of 309,066 shares of the Company's common stock at the same Exercise Price of $1.92 per share. Upon any further
borrowing of the Additional Term Loans, we will be required to issue additional warrants at the same Exercise Price to purchase up to an aggregate of 77,267
additional shares of common stock (which represents approximately 0.15% of our diluted common stock calculated using the “treasury stock” method as defined
under U.S. GAAP for the fiscal quarter ended June 30, 2017) for each $1.0 million of such Additional Term Loans. Similarly, upon our election to extend the
maturity of the Loans for additional one year periods, we will be required to issue additional warrants at the same Exercise Price to purchase up to an aggregate of
515,110 additional shares of common stock for the first year’s extension, and to purchase up to an aggregate of 772,665 additional shares of common stock for the
second year’s extension (which represent approximately 1.0% and 1.5% of our diluted common stock for the first and second years, respectively, calculated using
the “treasury stock” method as defined under U.S. GAAP for the fiscal quarter ended June 30, 2017).
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Contractual Obligations
The following summarizes our contractual obligations as of December 31, 2018 :
Payments Due by Period
Total
Less
Than
1 Year
1-3
Years
3-5
Years
More
Than
5 Years
$
$
45,800 $
2,350 $
43,450 $
8,581
13,425
7,328
3,428
3,427
7,097
5,153
5,907
231
— $
—
3,525
—
75,134 $
16,302 $
54,741 $
3,525 $
—
—
566
—
566
Contractual Obligations
Long-Term Debt Obligations
Interest Payments
Operating Lease Obligations
Purchase Obligations
Total
Off-Balance Sheet Arrangements
We have no off-balance sheet arrangements.
Adjusted EBITDA and Adjusted Net Income (Loss)
To provide investors with additional information regarding our financial results, we have disclosed in the table below and within this report adjusted
EBITDA and adjusted net income, both of which are non-GAAP financial measures. We have provided a reconciliation below of adjusted EBITDA to net income
and adjusted net income to net income, the most directly comparable GAAP financial measure to these non-GAAP financial measures.
We have included adjusted EBITDA and adjusted net income in this report because they are key measures used by our management and board of
directors to understand and evaluate our core operating performance and trends and to prepare and approve our annual budget. Accordingly, we believe that
adjusted EBITDA and adjusted net income provide useful information to investors and analysts in understanding and evaluating our operating results in the same
manner as our management and board of directors.
Our use of adjusted EBITDA and adjusted net income has limitations as an analytical tool, and you should not consider it in isolation or as a substitute for
analysis of our results as reported under GAAP. Some of these limitations are:
•
•
•
•
•
•
•
although depreciation and amortization are non-cash charges, the assets being depreciated and amortized may have to be replaced in the future, and
adjusted EBITDA does not reflect cash capital expenditure requirements for such replacements or for new capital expenditure requirements;
adjusted EBITDA does not reflect interest expense on our indebtedness;
adjusted EBITDA does not reflect changes in, or cash requirements for, our working capital needs;
adjusted EBITDA does not reflect tax payments;
adjusted EBITDA and adjusted net income do not reflect the potentially dilutive impact of equity-based compensation;
adjusted EBITDA and adjusted net income do not reflect the impact of certain non-operating expenses resulting from matters we do not consider to
be indicative of our core operating performance; and
other companies may calculate adjusted EBITDA and adjusted net income differently than we do, which reduces its usefulness as a comparative
measure.
Because of these limitations, you should consider adjusted EBITDA and adjusted net income alongside other financial performance measures, including
net income and our other GAAP results.
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The following tables present a reconciliation of adjusted EBITDA and adjusted net income (loss) for the years ended December 31, 2018 , 2017 and 2016
to actual net income (loss) for these periods:
2018
Year Ended December 31,
2017
(in thousands)
2016
Reconciliation of Adjusted EBITDA:
Net income (loss)
Provision for (benefit from) income taxes
Interest expense
Interest income
Transaction expenses (1)
Restructuring and other expenses (7)
Depreciation and amortization
Impairment of goodwill and intangible assets (4)
CMS Region A contract termination (6)
Stock based compensation
Adjusted EBITDA
Reconciliation of Adjusted Net Income:
Net income (loss)
Transaction expenses (1)
Stock based compensation
Amortization of intangibles (2)
Impairment of goodwill and intangible assets (4)
Deferred financing amortization costs (3)
Restructuring and other expenses (7)
CMS Region A contract termination (6)
Tax adjustments (5)
Adjusted Net Income (Loss)
$
(8,010) $
(12,729) $
1,542
4,699
(28)
—
—
10,234
2,988
(19,415)
2,750
(1,325)
6,972
(4)
576
—
10,888
1,081
—
3,740
(5,240) $
9,199 $
(11,453)
(4,370)
7,897
—
—
329
13,380
15,438
—
4,713
25,934
2018
Year Ended December 31,
2017
(in thousands)
2016
(8,010) $
(12,729) $
(11,453)
—
2,750
3,758
2,988
1,221
—
(19,415)
2,392
$
(14,316) $
576
3,740
898
1,081
2,385
—
—
(3,472)
(7,521) $
—
4,713
3,736
15,438
1,732
329
—
(10,379)
4,116
$
$
(1) Represents costs and expenses related to the refinancing of our indebtedness.
(2) Represents amortization of capitalized expenses related to the acquisition of Performant by an affiliate of Parthenon Capital Partners in 2004, an
acquisition in the first quarter of 2012 to enhance our analytics capabilities, and an acquisition of Premiere Credit of North America, LLC in the
third quarter of 2018.
(3) Represents amortization of capitalized financing costs related to our Credit Agreement for 2018 and 2017, and amortization of capitalized financing
costs related to our Prior Credit Agreement for 2017 and 2016.
(4) Represents intangible assets impairment charges related to Great Lakes customer relationship in 2018, impairment charges related to our Performant
Europe Ltd. subsidiary in 2017, and impairment charges related to our Department of Education customer relationship due to the announcement
that we would not receive a new contract award in 2016.
(5) Represents tax adjustments assuming a marginal tax rate of 27.5% for 2018, and 40% for 2017 and 2016.
(6) Represents the net impact of the termination of our 2009 CMS Region A contract during 2018, comprised of release of an aggregate of $28.4 million
of the estimated liability for appeals and the net payable to client balances into revenue, net of derecognition of $9.0 million of prepaid expenses and
other current assets, with a charge to other operating expenses, reflecting accrued receivables associated with amounts due from subcontractors for
decided and yet-to-be decided appeals.
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(7)Represents restructuring costs and severance and termination expenses incurred in connection with termination of employees and consultants in 2016.
Recent Accounting Pronouncements
See "Recent Accounting Pronouncements" in Note 1(u) of the Consolidated Financial Statements included in Part IV - Item 15 of this report.
ITEM 7A. Quantitative and Qualitative Disclosures about Market Risk
We do not hold or issue financial instruments for trading purposes. We conduct all of our business in U.S. currency and therefore do not have any direct
foreign currency risk. We do have exposure to changes in interest rates with respect to the borrowings under our senior secured credit facility, which bear interest
at a variable rate based on LIBOR. For example, if the interest rate on our borrowings increased 100 basis points (1%) from the credit facility floor of 1.0%, our
annual interest expense would increase by approximately $0.4 million.
While we currently hold our excess cash in an operating account, in the future we may invest all or a portion of our excess cash in short-term investments,
including money market accounts, where returns may reflect current interest rates. As a result, market interest rate changes impact our interest expense and interest
income. This impact will depend on variables such as the magnitude of interest rate changes and the level of our borrowings under our credit facility or excess cash
balances.
ITEM 8. Financial Statements and Supplementary Data
Our consolidated financial statements and notes thereto and the reports of Baker Tilly Virchow Krause LLP and KPMG LLP are set forth in the Index to
Financial Statements under Item 15, Exhibits, Financial Statement Schedules, and is incorporated herein by reference.
ITEM 9. Changes in and Disagreements with Accountants on Accounting and Financial Disclosure
On September 19, 2018, the Audit Committee approved the engagement of Baker Tilly Virchow Krause, LLP ("Baker Tilly") as our independent
registered public accounting firm for the fiscal year ending December 31, 2018, and the dismissal of KPMG LLP ("KPMG") as our independent registered public
accounting firm.
KPMG's audit reports on our consolidated financial statements as of and for the fiscal years ended December 31, 2017 and 2016 did not contain an
adverse opinion or a disclaimer of opinion and were not qualified or modified as to uncertainty, audit scope or accounting principles.
During the fiscal years ended December 31, 2017, and 2016, and the subsequent interim periods through September 19, 2018, there were (i) no
disagreements (as described in Item 304(a)(1)(iv) of Regulation S-K and the related instructions) between us and KPMG on any matter of accounting principles or
practices, financial statement disclosure, or auditing scope or procedure, which, if not resolved to KPMG's satisfaction, would have caused KPMG to make
reference thereto in their reports on the consolidated financial statements for such years, and (ii) no "reportable events" within the meaning of Item 304(a)(1)(v) of
Regulation S-K.
We requested that KPMG furnish a letter addressed to the Securities and Exchange Commission stating whether or not it agrees with the statements made
herein. A copy of KPMG's letter, dated September 21, 2018, is filed as Exhibit 16.1 to the Form 8-K filed September 21, 2018.
During the fiscal years ended December 31, 2017, and 2016, and the subsequent interim periods through September 19, 2018, neither we nor anyone
acting on our behalf has consulted with Baker Tilly regarding (i) the application of accounting principles to a specific transaction, either completed or proposed, or
the type of audit opinion that might be rendered on our consolidated financial statements and neither a written report nor oral advice was provided to us by Baker
Tilly that was considered by us in reaching a decision as to any accounting, auditing, or financial reporting issue, (ii) any matter that was the subject of a
disagreement within the meaning of Item 304(a)(1)(iv) of Regulation S-K, or (iii) any reportable event within the meaning of Item 304(a)(1)(v) of Regulation S-K.
ITEM 9A. Controls and Procedures
Evaluation of Disclosure Controls and Procedures
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We maintain a system of disclosure controls and procedures that are designed to ensure that information required to be disclosed in the Company’s reports
under the Exchange Act is recorded, processed, summarized and reported within the time periods specified in the Securities and Exchange Commission’s rules and
forms, and that such information is accumulated and communicated to management, including our Chief Executive Officer and the Chief Accounting Officer, as
appropriate, to allow timely decisions regarding required disclosure. In designing and evaluating the disclosure controls and procedures, management recognized
that any controls and procedures, no matter how well designed and operated, can provide only reasonable assurance of achieving the desired control objectives.
Management, with the participation of our Chief Executive Officer and our Chief Accounting Officer, has evaluated the effectiveness of our disclosure
controls and procedures, as defined in Rule 13a-15(e) under the Exchange Act, as of the fiscal year covered by this Annual Report on Form 10-K. Based on that
evaluation, our Chief Executive Officer and Chief Accounting Officer concluded that our disclosure controls and procedures were functioning effectively at the
reasonable assurance level as of December 31, 2018.
Management’s Report on Internal Control over Financial Reporting
Our management is responsible for establishing and maintaining adequate internal control over financial reporting (as defined in Rules 13a-15(f) and 15d-
15(f) under the Exchange Act) to provide reasonable assurance regarding the reliability of our financial reporting and the preparation of our consolidated financial
statements for external purposes in accordance with United States Generally Accepted Accounting Principles (“US GAAP”). Under the supervision of, and with
the participation of our Chief Executive Officer and Chief Accounting Officer, management assessed the effectiveness of internal control over financial reporting
as of December 31, 2018 . The criteria established in “Internal Control Integrated Framework” issued by the Committee of Sponsoring Organizations of the
Treadway Commission (“COSO”) were updated in May 2013, when COSO issued an updated framework (the "2013 COSO Framework"). Management based its
assessment on the criteria established in the 2013 COSO Framework. Based on this evaluation, management concluded that its internal control over financial
reporting was effective as of December 31, 2018 .
Changes in Internal Control over Financial Reporting
There was no change in our internal control over financial reporting during the year ended December 31, 2018 , that has materially affected, or is
reasonably likely to materially affect, our internal control over financial reporting, other than those noted above.
ITEM 9B. Other Information
None.
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PART III
ITEM 10. Directors, Executive Officers and Corporate Governance
This Item is incorporated by reference to our definitive proxy statement on Schedule 14A, which will be filed within 120 days after the close of the fiscal
year covered by this report on Form 10-K, or if our proxy statement is not filed by that date, will be included in an amendment to this Report on Form 10-K.
ITEM 11. Executive Compensation
This Item is incorporated by reference to our definitive proxy statement on Schedule 14A, which will be filed within 120 days after the close of the fiscal
year covered by this report on Form 10-K, or if our proxy statement is not filed by that date, will be included in an amendment to this Report on Form 10-K.
ITEM 12. Security Ownership of Certain Beneficial Owners and Management and Related Stockholder Matters
This Item is incorporated by reference to our definitive proxy statement on Schedule 14A, which will be filed within 120 days after the close of the fiscal
year covered by this report on Form 10-K, or if our proxy statement is not filed by that date, will be included in an amendment to this Report on Form 10-K.
ITEM 13. Certain Relationships and Related Transactions, and Director Independence
This Item is incorporated by reference to our definitive proxy statement on Schedule 14A, which will be filed within 120 days after the close of the fiscal
year covered by this report on Form 10-K, or if our proxy statement is not filed by that date, will be included in an amendment to this Report on Form 10-K.
ITEM 14. Principal Accounting Fees and Services
This Item is incorporated by reference to our definitive proxy statement on Schedule 14A, which will be filed within 120 days after the close of the fiscal
year covered by this report on Form 10-K, or if our proxy statement is not filed by that date, will be included in an amendment to this Report on Form 10-K.
PART IV
ITEM 15. Exhibits, Financial Statement Schedules
(a) Financial Statements
(1)
Financial
Statements.
The financial statements filed as part of this report are identified in the Index to Consolidated Financial Statements on page F-1.
(2)
Financial
Statement
Schedules
. See Item 15(c) below.
(3)
Exhibits
. See Item 15(b) below.
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(b) Exhibits
The following exhibits are filed herewith or are incorporated by reference to exhibits previously filed with the Securities and Exchange Commission. The
Company shall furnish copies of exhibits for a reasonable fee (covering the expense of furnishing copies) upon request.
Exhibit
Number
Description
3.1
3.2
4.2
10.1
10.2
10.3
10.4
10.5
10.6
10.7
10.8
10.9
10.10
10.11
10.12
10.13
10.14
Second Amended and Restated Certificate of Incorporation of Registrant (incorporated by reference to Exhibit 3.1(b) to the Company’s
Registration Statement on Form S-1/A filed July 23, 2012)
Amended and Restated Bylaws of Registrant (incorporated by reference to Exhibit 3.2(b) to the Company’s Registration Statement on
Form S-1/A filed July 23, 2012)
Amended and Restated Registration Rights Agreement, dated as of August 15, 2012, among the Registrant and the persons listed
thereon (incorporated by reference to Exhibit 4.2 to the Company’s Registration Statement on Form S-1/A filed July 23, 2012)
Form of Indemnification Agreement between the Registrant and its officers and directors (incorporated by reference to Exhibit 10.1 to
the Company’s Registration Statement on Form S-1/A filed July 30, 2012)
2004 Equity Incentive Plan and form of agreements thereunder (incorporated by reference to Exhibit 10.2 to the Company’s
Registration Statement on Form S-1 filed July 3, 2012)
2004 DCS Holdings Stock Option Plan and form of agreements thereunder (incorporated by reference to Exhibit 10.3 to the Company’s
Registration Statement on Form S-1 filed July 3, 2012)
2007 Stock Option Plan and form of agreements thereunder (incorporated by reference to Exhibit 10.4 to the Company’s Registration
Statement on Form S-1/A filed July 23, 2012)
Recovery Audit Contractor contract by and between Diversified Collection Services, Inc. and Center for Medicare and Medicaid
Services dated as of October 3, 2008, as amended (incorporated by reference to Exhibit 10.5 to the Company’s Registration Statement
on Form S-1/A filed July 23, 2012)
Form of Change of Control Agreement, as amended (incorporated by reference to Exhibit 10.7 to the Company’s Registration
Statement on Form S-1/A filed July 30, 2012)
Employment Agreement between the Registrant and Lisa Im, dated as of April 15, 2012, as amended (incorporated by reference to
Exhibit 10.8 to the Company’s Registration Statement on Form S-1/A filed July 23, 2012)
Repurchase Agreement between the Registrant and Lisa C. Im dated as of July 3, 2012 (incorporated by reference to Exhibit 10.10 to
the Company’s Registration Statement on Form S-1 filed July 3, 2012)
Director Nomination Agreement between the Registrant and Parthenon DCS Holdings, LLC dated as of July 20, 2012 (incorporated by
reference to Exhibit 10.12 to the Company’s Registration Statement on Form S-1/A filed July 23, 2012)
Advisory Services Agreement between Diversified Collection Services, Inc. and Parthenon Capital, LLC dated as of January 8, 2004,
as amended (incorporated by reference to Exhibit 10.13 to the Company’s Registration Statement on Form S-1/A filed July 23, 2012)
Termination of the Advisory Services Agreement between Diversified Collection Services, Inc. and Parthenon Capital, LLC dated as of
January 8, 2004, as amended, dated as of April 13, 2012 (incorporated by reference to Exhibit 10.14 to the Company’s Registration
Statement on Form S-1/A filed July 23, 2012)
Amended and Restated 2012 Stock Incentive Plan (incorporated by reference to Appendix A to the Company’s Definitive Proxy
Statement on Schedule 14A filed April 27, 2017)
Credit Agreement, dated as of August 7, 2017, by and among Performant Business Services, Inc. and ECMC Group, Inc. (incorporated
by reference to Exhibit 10.1 to the Company’s Quarterly Report on Form 10-Q filed August 9, 2017)
Amendment No. 1 to Credit Agreement, dated as of September 29, 2017, by and among Performant Business Services, Inc. and ECMC
Group, Inc. (incorporated by reference to Exhibit 10.1 to the Company's Quarterly Report on Form 10-Q filed November 13, 2017)
43
Table of Contents
10.15
10.16*
Amendment No. 2 to Credit Agreement, dated as of August [31], 2018, by and among Performant Business Services, Inc. and ECMC
Group, Inc. (incorporated by reference to Exhibit 10.1 to the Company's Quarterly Report on Form 10-Q filed August 10, 2018)
Amendment No. 3 to Credit Agreement, dated as of March 21, 2019, by and among Performant Business Services, Inc. and ECMC
Group, Inc.
Exhibit
Number
Description
21*
23.1*
23.2*
24*
31.1*
31.2*
32.1*
32.2*
List of Subsidiaries
Consent of KPMG LLP, Independent Registered Public Accounting Firm
Consent of Baker Tilly Virchow Krause LLP, Independent Registered Public Accounting Firm
Powers of Attorney (included in the signature page to this report)
Rule 13a-14(a)/15d-14(a) Certification, executed by Lisa C. Im
Rule 13a-14(a)/15d-14(a) Certification, executed by Ian Johnston
Furnished Statement of the Chief Executive Officer under 18 U.S.C. Section 1350
Furnished Statement of the Chief Accounting Officer under 18 U.S.C. Section 1350
101.INS*
XBRL Instance Document
101.SCH*
XBRL Taxonomy Extension Scheme
101.CAL*
XBRL Taxonomy Extension Calculation Linkbase
101.DEF*
XBRL Taxonomy Extension Definition Linkbase Document
101.LAB*
XBRL Taxonomy Extension Label Linkbase
101.PRE*
XBRL Taxonomy Extension Presentation Linkbase
*Filed herewith
Schedules not listed above have been omitted because they are not applicable or required, or the information required to be set forth therein is included in
the Consolidated Financial Statements or Notes hereto.
ITEM 16. Form 10-K Summary
Not applicable
44
Table of Contents
Index to Consolidated Financial Statements
Consolidated Financial Statements of Performant Financial Corporation and Subsidiaries as of December 31, 2018 and 2017 and for
the years ended December 31, 2018, 2017 and 2016
Report of Independent Registered Public Accounting Firm
Report of Predecessor Independent Registered Public Accounting Firm
Consolidated Balance Sheets
Consolidated Statements of Operations
Consolidated Statements of Comprehensive Income (Loss )
Consolidated Statements of Changes in Stockholders' Equity
Consolidated Statements of Cash Flows
Notes to Consolidated Financial Statements
F-1
Page
F-2
F-3
F-4
F-5
F-6
F-7
F-8
F-10
Table of Contents
Report of Independent Registered Public Accounting Firm
To the Stockholders and the Board of Directors of Performant Financial Corporation:
Opinion on the Consolidated Financial Statements
We have audited the accompanying consolidated balance sheet of Performant Financial Corporation and subsidiaries (the "Company") as of December 31, 2018,
the related consolidated statements of operations, comprehensive income (loss), changes in stockholders’ equity, and cash flows for the year ended December 31,
2018, and the related notes and financial statement Schedule II (collectively referred to as the "consolidated financial statements"). In our opinion, the consolidated
financial statements present fairly, in all material respects, the financial position of the Company as of December 31, 2018, and the results of its operations and its
cash flow for the year then ended, in conformity with accounting principles generally accepted in the United States of America.
We also have audited the adjustments to the 2017 and 2016 consolidated financial statements to retrospectively apply the changes in accounting described in Note
1(l) and (u) and the related required disclosures. In our opinion, such adjustments and related required disclosures are appropriate and have been properly applied.
We were not engaged to audit, review, or apply any procedures to the 2017 and 2016 consolidated financial statements of the Company other than with respect to
the adjustments and related required disclosures and, accordingly, we do not express an opinion or any other form of assurance on the 2017 or 2016 consolidated
financial statements taken as a whole.
Basis for Opinion
These consolidated financial statements are the responsibility of the Company's management. Our responsibility is to express an opinion on the Company's
consolidated financial statements based on our audit. We are a public accounting firm registered with the Public Company Accounting Oversight Board (United
States) ("PCAOB") and are required to be independent with respect to the Company in accordance with the U.S. federal securities laws and the applicable rules and
regulations of the Securities and Exchange Commission and the PCAOB.
We conducted our audit in accordance with the standards of the PCAOB. Those standards require that we plan and perform the audit to obtain reasonable assurance
about whether the consolidated financial statements are free of material misstatement, whether due to error or fraud. The Company is not required to have, nor
were we engaged to perform, an audit of its internal control over financial reporting. As part of our audit we are required to obtain an understanding of internal
control over financial reporting but not for the purpose of expressing an opinion on the effectiveness of the Company's internal control over financial reporting.
Accordingly, we express no such opinion.
Our audit included performing procedures to assess the risks of material misstatement of the consolidated financial statements, whether due to error or fraud, and
performing procedures that respond to those risks. Such procedures included examining, on a test basis, evidence regarding the amounts and disclosures in the
consolidated financial statements. Our audit also included evaluating the accounting principles used and significant estimates made by management, as well as
evaluating the overall presentation of the consolidated financial statements. We believe that our audit provides a reasonable basis for our opinion.
/s/ BAKER TILLY VIRCHOW KRAUSE, LLP
We have served as the Company's auditor since 2018.
Milwaukee, Wisconsin
April 1, 2019
F-2
Table of Contents
Report of Independent Registered Public Accounting Firm
To the Stockholders and Board of Directors
Performant Financial Corporation:
Opinion
on
the
Consolidated
Financial
Statements
We have audited, before the effects of the adjustments to retrospectively apply the changes in accounting described in Note 1 (l) and (u) and the related required
disclosures, the accompanying consolidated balance sheet of Performant Financial Corporation and subsidiaries (the Company) as of December 31, 2017, the
related consolidated statements of operations, comprehensive income (loss), changes in stockholders’ equity, and cash flows for each of the years in the two-year
period ended December 31, 2017, and the related notes and financial statement Schedule II (collectively, the consolidated financial statements). The 2017 and 2016
consolidated financial statements before the effects of the adjustments and the related required disclosures as described in Note 1 (l) and (u) are not presented
herein. In our opinion, the consolidated financial statements, before the effects of the adjustments to retrospectively apply the changes in accounting and the related
required disclosures described in Note 1 (l) and (u), present fairly, in all material respects, the financial position of the Company as of December 31, 2017, and the
results of its operations and its cash flows for each of the years in the two-year period ended December 31, 2017, in conformity with U.S. generally accepted
accounting principles.
We were not engaged to audit, review, or apply any procedures to the adjustments and the related required disclosures to retrospectively apply the change in
accounting described in Note 1 (l) and (u) and, accordingly, we do not express an opinion or any other form of assurance about whether such adjustments are
appropriate and have been properly applied. Those adjustments were audited by other auditors.
Basis
for
Opinion
These consolidated financial statements are the responsibility of the Company’s management. Our responsibility is to express an opinion on these consolidated
financial statements based on our audits. We are a public accounting firm registered with the Public Company Accounting Oversight Board (United States)
(PCAOB) and are required to be independent with respect to the Company in accordance with the U.S. federal securities laws and the applicable rules and
regulations of the Securities and Exchange Commission and the PCAOB.
We conducted our audits in accordance with the standards of the PCAOB. Those standards require that we plan and perform the audit to obtain reasonable
assurance about whether the consolidated financial statements are free of material misstatement, whether due to error or fraud. The Company is not required to
have, nor were we engaged to perform, an audit of its internal control over financial reporting. As part of our audits we are required to obtain an understanding of
internal control over financial reporting but not for the purpose of expressing an opinion on the effectiveness of the Company’s internal control over financial
reporting. Accordingly, we express no such opinion. Our audits included performing procedures to assess the risks of material misstatement of the consolidated
financial statements, whether due to error or fraud, and performing procedures that respond to those risks. Such procedures included examining, on a test basis,
evidence regarding the amounts and disclosures in the consolidated financial statements. Our audits also included evaluating the accounting principles used and
significant estimates made by management, as well as evaluating the overall presentation of the consolidated financial statements. We believe that our audits
provide a reasonable basis for our opinion.
We served as the Company’s auditor from 2002 to 2018.
San Francisco, California
March 14, 2018
/s/ KPMG LLP
F-3
Table of Contents
Current assets:
Cash and cash equivalents
Restricted cash
PERFORMANT FINANCIAL CORPORATION AND SUBSIDIARIES
Consolidated Balance Sheets
(In thousands, except per share amounts)
Assets
December 31,
2018
December 31,
2017
$
$
Trade accounts receivable, net of allowance for doubtful accounts of $22 and $35, respectively
Prepaid expenses and other current assets
Income tax receivable
Total current assets
Property, equipment, and leasehold improvements, net
Identifiable intangible assets, net
Goodwill
Deferred income taxes
Other assets
Total assets
Current liabilities:
Liabilities and Stockholders’ Equity
Current maturities of notes payable to related party, net of unamortized discount and debt issuance costs of $126
and $171, respectively
Accrued salaries and benefits
Accounts payable
Other current liabilities
Deferred revenue
Estimated liability for appeals
Net payable to client
Total current liabilities
Notes payable to related party, net of current portion and unamortized discount and debt issuance costs of $2,345 and
$3,245, respectively
Deferred income taxes
Earnout payable
Other liabilities
Total liabilities
Commitments and contingencies
Stockholders’ equity:
Common stock, $0.0001 par value. Authorized, 500,000 shares at December 31, 2018 and 2017, respectively;
issued and outstanding, 52,999 and 51,085 shares at December 31, 2018 and 2017, respectively
Additional paid-in capital
Retained earnings (accumulated deficit)
Total stockholders’ equity
$
5,462 $
1,813
20,879
3,420
179
31,753
22,255
1,160
81,572
—
1,019
21,731
1,788
12,494
12,678
6,839
55,530
20,944
4,864
81,572
468
1,058
137,759 $
164,436
2,224
$
5,759
1,402
3,414
1,078
210
—
14,087
41,105
22
1,936
3,383
60,533
5
77,370
(149)
77,226
2,029
4,569
1,518
3,347
—
18,817
12,800
43,080
38,555
—
—
2,476
84,111
5
72,459
7,861
80,325
164,436
Total liabilities and stockholders’ equity
$
137,759 $
See
accompanying
notes
to
consolidated
financial
statements.
F-4
Table of Contents
PERFORMANT FINANCIAL CORPORATION AND SUBSIDIARIES
Consolidated Statements of Operations
(In thousands, except per share amounts)
Revenues
Operating expenses:
Salaries and benefits
Other operating expenses
Impairment of goodwill and intangible assets
Total operating expenses
Loss from operations
Interest expense
Interest income
Loss before provision for (benefit from) income taxes
Provision for (benefit from) income taxes
Net loss
Net loss per share attributable to common shareholders (see Note 1)
Basic
Diluted
Weighted average shares (see Note 1)
Basic
Diluted
See
accompanying
notes
to
consolidated
financial
statements.
F-5
For the Years Ended December 31,
2018
2017
2016
$
155,668 $
132,049 $
141,360
96,144
58,333
2,988
157,465
(1,797)
(4,699)
28
(6,468)
1,542
82,191
55,863
1,081
139,135
(7,086)
(6,972)
4
(14,054)
(1,325)
$
$
$
(8,010) $
(12,729) $
(0.15) $
(0.15) $
(0.25) $
(0.25) $
52,064
52,064
50,688
50,688
78,863
54,985
15,438
149,286
(7,926)
(7,897)
—
(15,823)
(4,370)
(11,453)
(0.23)
(0.23)
50,038
50,038
Table of Contents
PERFORMANT FINANCIAL CORPORATION AND SUBSIDIARIES
Consolidated Statements of Comprehensive Income (Loss)
(In thousands)
Net loss
Other comprehensive loss:
Foreign currency translation adjustment
Comprehensive loss
See
accompanying
notes
to
consolidated
financial
statements.
For the Years Ended December 31,
2018
2017
2016
(8,010) $
(12,729) $
(11,453)
(32)
(3)
(8,042) $
(12,732) $
21
(11,432)
$
$
F-6
Table of Contents
PERFORMANT FINANCIAL CORPORATION AND SUBSIDIARIES
Consolidated Statements of Changes in Stockholders’ Equity
For the Years Ended December 31, 2018 , 2017 and 2016
(In thousands)
Balance, January 1, 2016
Common stock issued under stock plans, net of shares withheld for employee
taxes
Stock-based compensation expense
Income tax (shortfall) from employee stock awards
Other comprehensive income
Net loss
Balance, December 31, 2016
Common stock issued under stock plans, net of shares withheld for employee
taxes
Stock-based compensation expense
Recognition of warrant issued in debt financing
Other comprehensive loss
Net loss
Balance, December 31, 2017
Common stock issued under stock plans, net of shares withheld for employee
taxes
Stock-based compensation expense
Shares issued in conjunction with agreement to purchase Premiere Credit of
North America, LLC.
Recognition of warrant issued in debt financing
Other comprehensive loss
Net loss
Balance, December 31, 2018
See
accompanying
notes
to
consolidated
financial
statements.
F-7
Common Stock
Shares
Amount
Additional
Paid-In
Capital
Retained Earnings
(Accumulated
Deficit)
Total
49,479 $
5 $
61,808 $
32,043 $
93,856
755
—
—
—
—
50,234
851
—
—
—
—
51,085
914
—
1,000
—
—
—
71
4,713
(963)
21
—
—
—
—
—
71
4,713
(963)
21
(11,453)
(11,453)
65,650
20,590
86,245
(230)
3,740
3,302
(3)
—
—
—
—
—
(230)
3,740
3,302
(3)
(12,729)
(12,729)
72,459
7,861
80,325
—
—
—
—
—
5
—
—
—
—
—
5
—
(476)
—
2,750
—
—
—
—
2,420
249
(32)
—
—
—
—
—
—
(476)
2,750
2,420
249
(32)
(8,010)
(8,010)
52,999 $
5 $
77,370 $
(149) $
77,226
Table of Contents
PERFORMANT FINANCIAL CORPORATION AND SUBSIDIARIES
Consolidated Statements of Cash Flows
(In thousands)
Cash flows from operating activities:
Net loss
Adjustments to reconcile net loss to net cash provided by (used in) operating activities:
Loss on disposal of assets
Release of net payable to client related to contract termination
Release of estimated liability for appeals due to termination of contract
Derecognition of subcontractor receivable for appeals due to termination of contract
Derecognition of subcontractor receivable for overturned claims
Provision for doubtful account for subcontractor receivable
Impairment of goodwill and intangible assets
Depreciation and amortization
Deferred income taxes
Stock-based compensation
Interest expense from debt issuance costs
Earnout mark-to-market
Write-off of unamortized debt issuance costs
Interest expense paid in kind
Changes in operating assets and liabilities:
Trade accounts receivable
Prepaid expenses and other current assets
Income tax receivable
Other assets
Accrued salaries and benefits
Accounts payable
Deferred revenue and other current liabilities
Income taxes payable
Estimated liability for appeals
Net payable to client
Other liabilities
Net cash provided by (used in) operating activities
Cash flows from investing activities:
Purchase of property, equipment, and leasehold improvements
Premiere Credit of North America, LLC cash acquired
Net cash used in investing activities
Cash flows from financing activities:
Repayment of notes payable
Debt issuance costs paid
Taxes paid related to net share settlement of stock awards
Proceeds from exercise of stock options
Borrowings from notes payable
Income tax benefit from employee stock awards
Payment of purchase obligation
Net cash provided by (used in) financing activities
Effect of foreign currency exchange rate changes on cash
Net decrease in cash, cash equivalents and restricted cash
Cash, cash equivalents and restricted cash at beginning of year
Cash, cash equivalents and restricted cash at end of year
Non-cash investing activities:
Recognition of contingent consideration in acquisition
For the Years Ended December 31,
2018
2017
2016
$
(8,010) $
(12,729) $
(11,453)
44
(9,860)
(18,531)
5,535
1,536
1,868
2,988
10,234
490
2,750
1,221
(218)
—
—
(6,695)
895
6,660
69
220
(445)
(657)
—
(76)
(2,940)
773
(12,149)
(7,645)
2,285
(5,360)
(2,200)
(27)
(663)
187
4,000
—
—
1,297
(32)
(16,244)
23,519
67
—
—
—
—
—
1,081
10,888
3,733
3,740
1,336
—
1,049
331
(1,010)
8
(4,812)
(148)
254
890
(1,062)
—
(488)
(274)
120
2,974
(7,259)
—
(7,259)
(55,513)
(934)
(385)
155
44,000
—
—
(12,677)
(3)
(16,965)
40,484
7,275 $
23,519 $
12
—
—
—
—
—
15,438
13,380
(6,912)
4,713
1,264
—
468
—
6,481
247
(2,027)
(740)
(446)
(301)
(656)
(895)
187
(1,326)
350
17,784
(7,866)
—
(7,866)
(39,076)
(1,181)
(266)
337
—
103
(554)
(40,637)
21
(30,698)
71,182
40,484
2,154 $
— $
—
$
$
F-8
Table of Contents
Non-cash financing activities:
Recognition of shares issued in acquisition
Recognition of warrant issued in debt financing
Supplemental disclosures of cash flow information:
Cash paid (received) for income taxes
Cash paid for interest
Reconciliation of the consolidated statements of cash flows to the consolidated balance sheets:
Cash and cash equivalents
Restricted cash
Total cash, cash equivalents and restricted cash at end of period
See
accompanying
notes
to
consolidated
financial
statements.
F-9
$
$
$
$
$
$
$
2,420
249
(6,228)
3,477
5,462
1,813
7,275
$
$
$
$
$
$
$
— $
3,302 $
(353) $
4,284 $
21,731 $
1,788 $
23,519 $
—
—
5,273
6,156
32,982
7,502
40,484
Table of Contents
PERFORMANT FINANCIAL CORPORATION AND SUBSIDIARIES
Notes To Consolidated Financial Statements
For the Years Ended December 31, 2018 , 2017 and 2016
1. Summary of Significant Accounting Policies
(a) Organization and Nature of Business
Performant Financial Corporation (the "Company" or "we") is a leading provider of technology-enabled recovery and analytics services in the United
States. The Company's services help identify, restructure and recover delinquent or defaulted assets and improper payments for both government and
private clients in a broad range of markets. Clients of the Company typically operate in complex and regulated environments and contract for their
recovery needs in order to reduce losses on defaulted student loans, improper healthcare payments and delinquent state tax and federal treasury
receivables. The Company generally provides our services on an outsourced basis; handling many or all aspects of the clients’ recovery processes.
The Company’s consolidated financial statements include the operations of Performant Financial Corporation (Performant), its wholly-owned subsidiaries
Premiere Credit of North America, LLC (Premiere) and Performant Business Services, Inc., and its wholly-owned subsidiaries Performant Recovery, Inc.
(Recovery), Performant Technologies, Inc., and Performant Europe Ltd. Effective August 13, 2012, we changed the name of our wholly-owned subsidiary
from DCS Business Services, Inc. (DCSBS) to Performant Business Services, Inc., and DCSBS’ wholly-owned subsidiaries from Diversified Collection
Services, Inc. (DCS), and Vista Financial, Inc. (VFI), to Performant Recovery, Inc., and Performant Technologies, Inc., respectively. Performant is a
Delaware corporation headquartered in California and was formed in 2003. Premiere is an Indiana limited liability company acquired by Performant on
August 31, 2018. Performant Business Services, Inc. is a Nevada corporation founded in 1997. Recovery is a California corporation founded in 1976.
Performant Technologies, Inc. is a California corporation that was formed in 2004.
The Company is managed and operated as one business, with a single management team that reports to the Chief Executive Officer.
(b) Principles of Consolidation
The accompanying consolidated financial statements have been prepared in accordance with accounting principles generally accepted in the United States
of America, or U.S. GAAP. The Company consolidates entities in which it has controlling financial interest, and as of December 31, 2018 , all of the
Company’s subsidiaries are 100% owned. All significant intercompany balances and transactions have been eliminated in consolidation.
(c) Use of Estimates in the Preparation of Consolidated Financial Statements
The preparation of the consolidated financial statements in conformity with U.S. GAAP, requires management to make certain estimates and assumptions
that affect the reported amounts of assets and liabilities, primarily accounts receivable, intangible assets, goodwill, estimated liability for appeals, earnout
payable, other liabilities, deferred income taxes and income tax expense, and disclosure of contingent assets and liabilities at the date of the consolidated
financial statements and the reported amounts of revenues and expenses during the reporting periods. Our actual results could differ from those estimates.
(d) Acquisition of Premiere Credit of North America
On August 31, 2018, the Company completed its acquisition of Premiere. Premiere is a leading provider of recovery services to government, student loan
and commercial clients with approximately 330 employees located in Indianapolis and Nashville. As part of the transaction, Performant has expanded its
existing commercial relationship with the ECMC Group (“ECMC”) which was the former parent of Premiere. ECMC is also the lender under our existing
credit agreement. The Company funded the acquisition with issuance of 1,000,000 Performant shares to ECMC and additional shares over the five -year
period following the closing based on revenue associated with Premiere’s business in each year. At closing, Performant entered into a long-term
agreement to be ECMC’s primary student loan recovery vendor. In addition, Performant also executed an amendment to its existing credit agreement with
ECMC as discussed in Note 4.
F-10
Table of Contents
Consideration:
After the September 30, 2018 financial statements were filed in the Form 10-Q, the Company received a final valuation report from a
third-party valuation firm. After considering the results of that valuation report, the Company has estimated that the fair value of the earn-out
consideration to be $2.2 million instead of the preliminary value of $1.9 million , an increase of $0.3 million . The estimated consideration of $4.3 million
has been revised as follows:
Initial shares consideration
Closing stock price per share
Earn-out consideration
Total consideration
Preliminary
Final
(In thousands except per share amount)
1,000
2.42 $
2,420
1,876
4,296 $
1,000
2.42
2,420
2,154
4,574
$
$
The contingent earn-out consideration was valued based on a Monte Carlo simulation.
Purchase
price
allocation:
In accordance with U.S. GAAP, the total purchase price has been allocated to the tangible and intangible assets acquired based
on management’s estimates of their fair values. The Company has adjusted the provisional amount of certain assets and liabilities as follows: Cash of $2.3
million increased by $0.6 million . The amount of $1.7 million presented in the September 30, 2018 financial statements initially netted a $0.6 million
payment made to the seller shortly after the close against cash of $2.3 million . The increase in cash is offset by a corresponding $0.6 million increase in
other current liabilities. In addition, Property, equipment and leasehold improvements increased $0.3 million from $2.9 million to $3.2 million .
The following table summarizes the estimated fair values of the assets acquired and liabilities assumed at the acquisition date. The purchase price
allocation of $4.3 million at August 31, 2018 and the revised price, were as follows:
Preliminary
Final
Cash and cash equivalents
Trade accounts receivable, net
Other current assets
Property, equipment, and leasehold improvements, net
Customer relationship intangible asset
Other assets
Total identifiable assets acquired
Accounts Payable
Accrued salaries and benefits
Other current liabilities
Other liabilities
Net assets acquired
$
$
(In thousands)
1,669
$
1,690
576
2,896
50
34
6,915
(328)
(970)
(1,186)
(135)
4,296
$
2,285
1,690
576
3,174
50
34
7,809
(328)
(970)
(1,802)
(135)
4,574
The estimated fair value and useful life for the customer relationship intangible asset is as follows:
Estimated Fair Value
(In thousands)
Customer Relationships
$
50
Estimated Useful Life
(In years)
4
The fair value of the customer relationship and the amortization method were determined using the excess earnings method that relies on projected future
net cash flows including key assumptions for the customer attrition rate and discount rate. The estimated weighted average useful life reflects the time
period and pattern that Performant expects for projected benefits.
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The Company recorded $0.2 million of acquisition-related costs in other operating expenses.
The results of Premiere have been included in the Company’s consolidated financial statements from the date of acquisition. Revenues from Premiere
included in the Company’s results for the twelve months ended December 31, 2018 were $7.0 million . Net loss for Premiere included in the Company’s
results for the twelve months ended December 31, 2018 was $1.4 million .
Pro
forma
information:
The following table presents selected unaudited pro forma information for the Company assuming the acquisition of Premiere had
occurred as of January 1, 2017. This pro forma information does not purport to present what the Company’s actual results would have been if the
acquisition occurred as of the date indicated or what such results would be for any future periods.
Total revenues
Net loss
Earnings per share:
Basic
Diluted
(e) Cash and Cash Equivalents
Unaudited
Year Ended December 31,
2018
2017
(In thousands, except per share amounts)
$
$
$
$
170,893 $
(12,672) $
(0.24) $
(0.24) $
160,759
(15,200)
(0.30)
(0.30)
Cash and cash equivalents include demand deposits and highly liquid debt investments with original maturities of three months or less when purchased.
These investments can include money market funds that invest in U.S. government and agency obligations, certificates of deposit, bankers’ acceptances,
and commercial paper.
The Company collects monies on behalf of its clients. Cash is often held on behalf of the clients in various trust accounts and is subsequently remitted to
the clients based on contractual agreements. Cash held in these trust accounts for contracting agencies is not included in the Company’s assets
(Note 11(a)).
(f) Restricted Cash
At December 31, 2018 and 2017 , restricted cash included in current assets on our consolidated balance sheet was $1.8 million and $ 1.8 million ,
respectively. In May 2017, the Company paid $7.5 million to the lenders and deposited $6.0 million into a segregated deposit account. On August 3,
2017, all of this $6.0 million of restricted cash was paid to the administrative agent for the benefit of the lenders under our prior credit agreement. In
November 2017, the Company deposited $1.8 million in restricted cash as collateral for new letters of credit issued to replace letters of credit terminated
under our prior credit agreement.
(g) Property, Equipment, and Leasehold Improvements
Property, equipment, and leasehold improvements are stated at cost, net of accumulated depreciation. Furniture and equipment are depreciated using the
straight-line method over estimated useful lives ranging from 5 to 7 years. Buildings are depreciated using the straight-line method over 31.5 years.
Leasehold improvements are amortized using the straight-line method over the shorter of the estimated life of the asset or the remaining term of the lease.
Computer software and computer hardware are depreciated using the straight-line method over 3 years and 5 years, respectively.
Maintenance and repairs are charged to expense as incurred. Improvements that extend the useful lives of assets are capitalized.
When property is sold or retired, the cost and the related accumulated depreciation are removed from the consolidated balance sheet and any gain or loss
from the transaction is included in the consolidated statements of operations.
(h) Goodwill and Other Intangible Assets
Goodwill represents the excess of purchase price and related costs over the fair value assigned to the net assets of businesses acquired. Goodwill is not
amortized, but instead is reviewed for impairment at least annually. Impairment is
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the condition that exists when the carrying amount of goodwill is not recoverable and its carrying amount exceeds its fair value. The Company performs
its assessment of whether it is more likely than not that goodwill fair value is less than its carrying amount in November of each year to allow the
Company additional time to evaluate its assessment prior to reporting its results. The Company performed a quantitative impairment assessment of
whether it is more likely than not that goodwill fair value is less than its carrying amount as of November 30, 2018, and concluded that there was no need
to impair goodwill.
During the second quarter of 2017, the Company decided to wind down the activity of Performant Europe Ltd. Based on this decision, the Company
concluded that the fair value of Performant Europe Ltd. was more likely than not less than its carrying amount. Accordingly, the goodwill balance related
to the healthcare audit acquisition was $0.9 million , and we recognized a goodwill impairment loss of this amount as of June 30, 2017.
The Company performed a qualitative assessment of whether it is more likely than not that goodwill fair value is less than its carrying amount as of
November 30, 2017, and concluded that there was no need to perform an impairment test.
Identifiable intangible assets consist of customer contracts and related relationships, a perpetual license, and covenants not to compete. Customer
contracts and related relationships are amortized over their estimated useful life of 4 to 20 years. The perpetual license is amortized over its estimated
useful life of 5 years.
(i)
Impairment of Long-Lived Assets
Long-lived assets are evaluated for impairment whenever events or changes in circumstances indicate that the carrying amount of such assets or
intangibles may not be recoverable. Recoverability of assets to be held and used is measured by a comparison of the carrying amount of the assets to
future undiscounted net cash flows expected to be generated by the assets. If such assets are considered to be impaired, the impairment to be recognized is
measured by the amount by which the carrying amount of the assets exceeds the fair value of the assets.
(j) System Developments
The Company follows the provisions of Financial Accounting Standards Board (FASB) Accounting Standards Codification (ASC) Subtopic 350-40,
Internal-Use
Software
, which specifies that costs incurred during the application stage of development should be capitalized. All other costs are expensed
as incurred. During 2018 , 2017 and 2016 , costs of $5.5 million , $5.1 million and $6.9 million respectively, were capitalized for projects in the
application stage of development. Depreciation expense for completed projects during 2018, 2017 and 2016 were $6.8 million , $6.7 million and $5.8
million , respectively.
(k) Debt Issuance Costs
Debt issuance costs represent loan and legal fees paid in connection with the issuance of long-term debt. Debt issuance costs are deducted from current
and non-current notes payable and are amortized to interest expense under the effective interest method in accordance with key terms of the notes as
amended.
(l) Revenues, Accounts Receivable, and Estimated Liability for Appeals
The Company derives its revenues primarily from providing recovery services. Revenues are recognized when control of these services is transferred to
its customers, in an amount that reflects the consideration the Company expects to be entitled to in exchange for those services.
The Company determines revenue recognition through the following steps:
•
•
•
•
•
Identification of the contract with a customer
Identification of the performance obligations in the contract
Determination of the transaction price
Allocation of the transaction price to the performance obligations in the contract
Recognition of revenue when, or as, the performance obligations are satisfied
The Company accounts for a contract when it has approval and commitment from both parties, the rights of the parties are identified, payment terms are
identified, the contract has commercial substance and collectability of consideration is probable.
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The Company’s contracts generally contain a single performance obligation, delivered over time as a series of services that are substantially the same and
have the same pattern of transfer to the client, as the promise to transfer the individual services is not separately identifiable from other promises in the
contracts and, therefore, not distinct. For contracts with multiple performance obligations, the Company would allocate the contract’s transaction price to
each performance obligation using its best estimate of the standalone selling price of each distinct service in the contract. The Company determines the
standalone selling prices by taking into consideration the value of the services being provided, the client type and how similar services are priced in other
contracts on a standalone basis.
The Company’s contracts are composed primarily of variable consideration. Fees earned under the Company’s recovery service contracts consist
primarily of contingency fees based on a specified percentage of the amount the Company enables its clients to recover. The contingency fee percentage
for a particular recovery depends on the type of recovery or claim facilitated. In certain contracts the Company can earn additional performance-based
consideration determined based on its performance relative to the client’s other contractors providing similar services.
Revenue from contingency fees earned upon recovery of funds is generally recognized as amounts are invoiced based on either the ‘as-invoiced’ practical
expedient when such amounts reflect the value of the services completed to-date, or an output measure based on milestones which is used to measure
progress of the satisfaction of its performance obligation. The Company estimates any performance-based variable consideration and recognizes such
revenue over the performance period only if it is probable that a significant reversal in the amount of cumulative revenue recognized will not occur. Under
certain contracts, consideration can include periodic performance-based bonuses which can be awarded based on the Company’s performance under the
specific contract. These performance-based awards are considered variable and may be constrained by the Company until there is not a risk of a material
reversal.
For contracts that contain a refund right, these amounts are considered variable consideration and the Company estimates its refund liability for each
claim and recognizes revenue net of such estimate.
The following table presents revenue disaggregated by category (in thousands) for the year ended December 31, 2018, 2017 and 2016.
Year Ended December 31,
2018
2017
(in thousands)
2016
Student Lending:
Great Lakes Higher Education Guaranty Corporation
$
26,702 $
46,090 $
All Other Guaranty Agencies
Total of Student Lending
Healthcare:
CMS RAC and MSP CRC (1)
Commercial
Total of Healthcare
Other (2)
Total Revenues
39,796
66,498
41,859
14,088
55,947
33,223
48,215
94,305
1,437
8,549
9,986
27,758
36,956
72,609
109,565
5,733
5,662
11,395
20,400
$
155,668 $
132,049 $
141,360
(1)
(2)
Includes $ 28.4 million related to the termination of the 2009 CMS Region A contract
Represents outsource services, tax, and IRS
The Company generally either applies the as-invoiced practical expedient where its right to consideration corresponds directly to its right to invoice its
clients, or the variable consideration allocation exception where the variable consideration is attributable to one or more, but not all, of the services
promised in a series of distinct services that form part of a single performance obligation. As such the Company has elected the optional exemptions
related to the as-invoiced practical expedient and the variable consideration allocation exception whereby the disclosure of the amount of transaction price
allocated to the remaining performance obligations is not required.
The Company has applied the as-invoiced practical expedient or the variable consideration allocation exception to contracts with performance obligations
that have an average remaining duration of less than a year.
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Revenue is recognized upon the collection of defaulted loan and debt payments. Loan rehabilitation revenue is recognized when the rehabilitated loans are
sold (funded) by clients. Incentive revenue is recognized upon receipt of official notification of incentive award from customers.
Under the Company’s Medicare Secondary Payer (MSP), Commercial Payment Center (CPC) contract with Centers for Medicare and Medicaid Services
(CMS), the Company recognizes revenues when insurance companies or other responsible parties remit payment to reimburse CMS for claims for which
they are responsible, and the remittance has been applied in the CMS database. Under the Company’s Medicare Recovery Audit Contractor (RAC),
contract with CMS, the Company recognizes revenues when the healthcare provider has paid CMS for a given claim or has agreed to an offset against
other claims by the provider.
Under other healthcare contracts, the Company may recognize revenue upon delivering the results of claims audits, when sufficient reliable information is
available to the Company for estimating the variable consideration earned, as it is a reasonable measure of the Company’s progress toward complete
satisfaction of our performance obligation.
Healthcare providers have the right to appeal a claim and may pursue additional appeals if the initial appeal is found in favor of CMS or other healthcare
clients. Total estimated liability for appeals was $0.2 million and $18.8 million as of December 31, 2018 and 2017, respectively. This represents the
Company’s best estimate of the probable amount of losses related to appeals of claims for which commissions were previously collected. As a result of
the termination of the 2009 CMS Region A contract on January 31, 2018, the estimated liability for appeals related to CMS was $0.0 million as of
December 31, 2018 as compared to $18.5 million as of December 31, 2017.
For the year ended December 31, 2018 , the Company had 3 clients whose individual revenues exceeded 10% of the Company’s total revenues. The dollar
amount and percent of total revenue of each of the 3 clients is summarized in the table below (in thousands):
Rank
1
2
3
2018 Revenue
$41,859
$26,908
$26,702
Percent of
total revenue
26.9%
17.3%
17.2%
For the year ended December 31, 2017 , the Company had 2 clients whose individual revenues exceeded 10% of the Company’s total revenues. The dollar
amount and percent of total revenue of each of the 2 clients is summarized in the table below (in thousands):
Rank
1
2
2017 Revenue
$43,189
$27,367
Percent of
total revenue
32.7%
20.7%
For the year ended December 31, 2016 , the Company had 3 clients whose individual revenues exceeded 10% of the Company’s total revenues. The dollar
amount and percent of total revenue of each of the 3 clients is summarized in the table below (in thousands):
Rank
1
2
3
2016 Revenue
$33,243
$23,196
$21,949
Percent of
total revenue
23.5%
16.4%
15.5%
Revenue from the largest three customers was 61% , 63% and 55% of total revenue in 2018 , 2017 and 2016 , respectively. Accounts receivable due from
these three customers were 62% , 31% and 57% of total trade receivables at December 31, 2018 , 2017 and 2016 , respectively. Trade accounts receivable
are recorded at the invoiced amount and do not bear interest. Amounts collected on trade accounts receivable are included in net cash provided by (used
in) operating activities in the consolidated statements of cash flows. The Company determines the allowance for doubtful accounts by specific
identification. Account balances are charged off against the allowance after all means of
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collection have been exhausted and the potential for recovery is considered remote. The allowance for doubtful accounts was $0.02 million and $0.04
million for December 31, 2018 and December 31, 2017 , respectively.
The Company determined that it does not have any costs related to obtaining or fulfilling a contract that are recoverable and as such, these contract costs
are expensed as incurred
Contract assets are included in trade accounts receivable in the consolidated balance sheets. The Company has contract assets of $3.0 million and $1.6
million as of December 31, 2018 and December 31, 2017, respectively. The contract assets relate to the Company’s rights to consideration for services
completed during the year ended December 31, 2018, and December 31, 2017, but not invoiced at the reporting date. Contract assets are recorded to
accounts receivable when the rights become unconditional and amounts are invoiced.
Contract liabilities are included in Deferred revenue in the consolidated balance sheets. The Company has contract liabilities of $1.1 million as of
December 31, 2018 and none as of December 31, 2017. The Company’s contract liability relates to an advance recovery commission payment received
from a customer during the first quarter of 2018, for which the Company anticipates revenue to be recognized as services are delivered.
(m) Net Payable to Client
The Company nets outstanding accounts receivable invoices from an audit and recovery contract against payables for overturned audits. The overturned
audits are netted against current fees due on the invoice to the client when they are processed by the client’s system. As a result of the termination of the
2009 CMS Region A contract on January 31, 2018, the net payable to client balance was $0.0 million as of December 31, 2018. The net payable to client
balance of $12.8 million at December 31, 2017, represents the excess of payables for overturned audits.
(n) Prepaid Expenses and Other Current Assets
The Company employed subcontractors to audit claims as part of the 2009 CMS Region A contract, and to the extent that audits by these subcontractors
were overturned on appeal, the fees associated with such claims were contractually refundable to the Company. At December 31, 2018 , the receivable
from subcontractor fees associated with estimated future overturns and for already overturned subcontractor audits was $0.0 million as a result of the
termination of the 2009 CMS Region A contract on January 31, 2018. By comparison, at December 31, 2017 , the receivable associated with the
estimated future overturns of subcontractor audits was $5.6 million , and the receivable for subcontractor fees for already overturned audits refundable to
the Company once the Company refunds its fees to the client as prime contractor was $3.7 million .
(o) Legal Expenses
The Company recognizes legal fees related to litigation as they are incurred.
(p) Comprehensive Income (Loss)
The Company has a single component of comprehensive income (loss) on the consolidated statements of comprehensive income (Loss) related to foreign
currency translation adjustments for its subsidiary Performant Europe Ltd. for the years ended December 31, 2018 , 2017 and 2016 .
(q) Fair Value of Financial Instruments
The Company’s consolidated financial instruments include cash and cash equivalents, accounts receivable, accounts payable and accrued liabilities, short-
term debt and long-term debt. The carrying values of cash and cash equivalents, accounts receivable, accounts payable, and accrued liabilities
approximate their fair values based on or due to their short-term maturities. The carrying values of short-term debt and long-term debt approximate fair
value, in which their variable interest rates approximate market rates.
(r)
Income Taxes
The Company accounts for income taxes under the asset-and-liability method. Deferred income tax assets and liabilities are recognized for future tax
consequences attributable to differences between the carrying value of assets and liabilities for financial reporting purposes and for taxation purposes.
Deferred income tax assets and liabilities are measured using the enacted tax rates expected to apply to taxable income in the years in which those
temporary differences are expected to be recovered or settled. The effect of a change in tax rates on deferred income tax assets
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and liabilities is recognized in income in the period that includes the enactment date. Valuation allowances are established when necessary to reduce
deferred tax assets to the amount expected to be realized.
The Company recognizes the effect of income tax positions only if those positions are more likely than not of being sustained. Recognized income tax
positions are measured at the largest amount that is greater than 50% likely of being realized. Changes in recognition or measurement are reflected in the
period in which the change in judgment occurs. Interest expense and penalties related to unrecognized tax benefits are recorded in income tax expense.
(s) Stock Options
The Company accounts for its employee stock-based compensation awards in accordance with FASB ASC Topic 718, Compensation
–
Stock
Compensation
. FASB ASC Topic 718 requires that all employee stock-based compensation is recognized as a cost in the consolidated financial
statements and that for equity-classified awards, such cost is measured at the grant date fair value of the award. The Company estimates grant date fair
value using the Black-Scholes-Merton option-pricing model.
FASB ASC Topic 718 also requires that excess tax benefits recognized in equity related to stock option exercises are reflected as financing cash inflows.
The Company recognized an income tax benefit resulting from the exercise of stock options in 2018 , 2017 and 2016 of $ 0.0 million , $ 0.0 million and $
0.1 million , respectively.
(t) Loss per Share
For the years ended December 31, 2018 , 2017 , and 2016 , basic loss per share is calculated by dividing net loss attributable to common shareholders by
the sum of the weighted average number of common shares outstanding during the year. Diluted earnings per share is calculated by dividing net income
available to common shareholders by the weighted average number of common shares and dilutive common shares equivalents outstanding during the
period. The Company’s common share equivalents consist of stock options, restricted stock units(RSUs), and performance stock units. When there is a
loss in the period, dilutive common share equivalents are excluded from the calculation of diluted earnings per share, as their effect would be anti-
dilutive.
The following table reconciles the basic to diluted weighted average shares outstanding using the treasury stock method (shares in thousands):
Weighted average shares outstanding – basic
Dilutive effect of stock options
Weighted average shares outstanding – diluted
Years Ended December 31,
2018
2017
2016
52,064
—
52,064
50,688
—
50,688
50,038
—
50,038
The following table shows the number of shares of common stock subject to options and restricted stock awards that were outstanding for the years ended
December 31, 2018 , 2017 and 2016 , which were not included in the net loss per diluted share calculation because to do so would have been anti-dilutive:
Number of shares
(u) New Accounting Pronouncements
Recently
Adopted
Accounting
Standards
Years Ended December 31,
2018
4,828,278
2017
4,604,218
2016
3,996,701
In August 2016, the FASB issued Accounting Standards Update (ASU) 2016-15, “Statement of Cash Flows: Classification of Certain Cash Receipts and
Cash Payments” which provides guidance on the presentation of certain cash receipts and cash payments in the statement of cash flows in order to reduce
diversity in existing practice. This new guidance was effective for annual reporting periods, and interim periods within those years, beginning after
December 15, 2017, and early adoption was permitted. This new standard required retrospective adoption, with a provision for impracticability. The
Company adopted this guidance on January 1, 2018 and it did not have any impact on our consolidated financial statements.
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Table of Contents
In May 2014, the FASB issued an ASU that amends the FASB ASC by creating a new Topic 606, "Revenue from Contracts with Customers". The new
guidance supersedes the revenue recognition requirements in Topic 605, "Revenue Recognition", and most industry-specific guidance on revenue
recognition throughout the Industry Topics of the Codification. The core principle of the guidance is that an entity should recognize revenue to depict the
transfer of promised goods or services to customers in an amount that reflects the consideration to which the entity expects to be entitled in exchange for
those goods or services. To achieve that core principle, an entity should apply a five-step model for recognizing and measuring revenue from contracts
with customers. In addition, an entity should disclose sufficient qualitative and quantitative information to enable users of financial statements to
understand the nature, amount, timing and uncertainty of revenue and cash flows arising from contracts with customers.
The Company adopted Topic 606 as of January 1, 2018, utilizing the full retrospective method of transition. The Company applied Topic 606
retrospectively for all reporting periods presented before January 1, 2018, the date of the initial application. There was no impact of adopting Topic 606
on the Company’s 2017 and 2016 consolidated financial statements.
Recently
Issued
Accounting
Standards
In February 2016, the FASB issued ASU 2016-02, “Leases”, which requires the recognition of lease assets and lease liabilities on the balance sheet by
lessees for those leases currently classified as operating leases under ASC Topic 840 Leases. The guidance is effective for our fiscal year beginning
January 1, 2019 and should be applied using a modified retrospective approach. Early adoption is permitted. The Company plans to adopt this new
standard in the first quarter of our fiscal 2019 with the cumulative effect of adoption recognized to retained earnings on January 1, 2019. Upon adoption,
the Company will recognize right-of-use assets and operating lease liabilities on the consolidated balance sheets, which will increase the total assets and
total liabilities. In July 2018 the FASB issued ASU No. 2018-11, Targeted
Improvements
, which provides us with the option to apply the new leasing
standard to all open leases as of the adoption date. The Company has elected to adopt this pronouncement using the optional transition method under ASU
2018-11 as of January 1, 2019 and Management estimates that the adoption will result in recognition of right-of-use assets of $9.1 million and lease
liabilities for operating leases of approximately $10.2 million , including a reclassification of deferred rent for $1.1 million , on its Consolidated Balance
Sheets. Management does not believe the new standard will have a material impact on the consolidated statements of operations, nor will it have a notable
impact on the Company’s liquidity. The standard will also have no impact on the Company’s debt-covenant compliance under its current agreements.
In January 2017, the FASB issued ASU 2017-04, "Simplifying the Test for Goodwill Impairment" to simplify the goodwill impairment testing process.
The new standard eliminates Step 2 of the goodwill impairment test. If a company determines in Step 1 of the goodwill impairment test that the carrying
value of goodwill exceeds its fair value, an impairment in that amount should be recorded to the income statement, rather than proceeding to Step 2. The
Company elected to early adopt the proposed guidance for the year ended December 31, 2018 on a prospective basis. The early adoption of this guidance
did not have a material impact on the consolidated financial statements and related disclosures .
2. Property, Equipment, and Leasehold Improvements
Property, equipment, and leasehold improvements consist of the following at December 31, 2018 and 2017 (in thousands):
December 31, 2018
Land
Building and leasehold improvements
Furniture and equipment
Computer hardware and software
Less accumulated depreciation and amortization
Property, equipment and leasehold improvements, net
$
$
December 31, 2017
1,122
1,943 $
8,076
6,248
78,743
95,010
(72,755)
22,255 $
6,410
5,763
72,044
85,339
(64,395)
20,944
Depreciation and amortization expense of property, equipment and leasehold improvements was $9.5 million , $10 million and $9.6 million for the years
ended December 31, 2018 , 2017 and 2016 , respectively.
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3. Identifiable Intangible Assets
Identifiable intangible assets consist of the following at December 31, 2018 and 2017 (in thousands):
December 31, 2018
Amortizable intangibles:
Customer contracts and related relationships
Less: Impairment of customer contracts and related relationships
Add: Customer relationship intangible asset
Perpetual license
Total intangible assets
December 31, 2017
Amortizable intangibles:
Customer contracts and related relationships
Less: Impairment of customer contracts and related relationships
Perpetual license
Total intangible assets
Gross
Amounts
Accumulated
Amortization
Net
25,378 $
(24,264) $
1,114
(2,988)
50
3,250
2,988
(4)
(3,250)
—
46
—
25,690 $
(24,530) $
1,160
Gross
Amounts
Accumulated
Amortization
Net
23,209 $
(18,345) $
(1,081)
3,250
1,081
(3,250)
25,378 $
(20,514) $
4,864
—
—
4,864
$
$
$
$
For the years ended December 31, 2018 , 2017 and 2016 , amortization expense related to intangible assets amounted to $0.8 million , $0.9 million and $3.7
million , respectively. For the year ended December 31, 2018, an impairment expense of $3.0 million was recognized relating to the Great Lakes Higher
Education Guaranty Corporation customer relationship and has been presented as a separate caption in the consolidated statements of operations. For the year
ended December 31, 2017, an impairment expense of $0.1 million was recognized to account for the impairment charge in Performant Europe Ltd. due to the
Company's decision to wind down this subsidiary. For the year ended December 31, 2016, an impairment expense of $15.4 million was recognized relating to
the Department of Education customer relationship.
The estimated aggregate amortization expense for each of the five following fiscal years is as follows (in thousands):
Year Ending December 31,
2019
2020
2021
2022
2023
Thereafter
Total
4. Credit Agreement
$
$
Amount
235
235
235
232
223
—
1,160
On August 7, 2017, we, through our wholly-owned subsidiary Performant Business Services, Inc. (the "Borrower"), entered into a credit agreement with
ECMC Group, Inc. (as amended, the “Credit Agreement”). Before the amendment described below, the Credit Agreement provided for a term loan facility in
the initial amount of $44 million (the “Initial Term Loan”) and for up to $15 million of additional term loans (“Additional Term Loans”; and together with the
Initial Term Loan, the “Loans”) which original Additional Term Loans were initially able to be drawn until the second anniversary of the funding of the Initial
Term Loans, subject to the satisfaction of customary conditions. On August 11, 2017, the Initial Term Loan was advanced (the "Closing Date") and the
proceeds were applied to repay all outstanding amounts under our prior credit agreement with Madison Capital Funding LLC as administrative agent ("the
Prior Credit Agreement"). On August 31, 2018, we entered into Amendment No. 2 to the Credit Agreement to among other things (i) extend the maturity date
of the Initial Term Loan and any Additional Term Loans by one year to August 2021, (ii) expand the Additional Term Loans commitment from $15 million to
$25 million , (iii) extend the period during which Additional Term Loans can be borrowed by one year to August 2020, and (iv) relieve the Borrower from its
obligation to comply with
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the financial covenants in the Credit Agreement during the six fiscal quarters following the Premiere acquisition. On October 15, 2018, the Company
borrowed $4 million of the $25 million available as Additional Term Loans under the Credit Agreement. As of December 31, 2018, $45.8 million was
outstanding under the Credit Agreement. On March 21, 2019, we entered into Amendment No. 3 to the Credit Agreement to among other things relieve the
Borrower from its obligation to comply with the financial covenants in the Credit Agreement until the quarter ending June 30, 2020.
We have the option to extend the maturity of the Loans for two additional one year periods, subject to the satisfaction of customary conditions. The Loans
bear interest at the one-month LIBOR rate (subject to a 1% per annum floor) plus a margin which may vary from 5.5% per annum to 10.0% per annum based
on our total debt to EBITDA ratio. Our annual interest rate at December 31, 2018, was 8.0% , and at December 31, 2017 was 8.6% . We are required to pay
5% of the original principal balance of the Loans annually in quarterly installments and to make mandatory prepayments of the Loans with a percentage of our
excess cash flow which may vary between 75% and 0% depending on our total debt to EBITDA ratio and from the net cash proceeds of certain asset
dispositions and debt not otherwise permitted under the Credit Agreement, in each case, subject to the lender's right to decline to receive such payments. The
Loans may be voluntarily prepaid at any time, together with a prepayment premium of 1% for all voluntary prepayments prior to August 11, 2019.
The Credit Agreement contains certain restrictive financial covenants which are not effective until the quarter ending June 30, 2020, at which point, we will be
required to (1) achieve a minimum fixed charge coverage ratio of 1.0 to 1.0 through December 31, 2020, 1.25 to 1.0 through June 30, 2021, and 1.25 to 1.0
through June 30, 2022 if the maturity date of the Loans is extended until the fifth anniversary of the Closing Date and (2) maintain a maximum total debt to
EBITDA ratio of 6.00 to 1.00 . The Credit Agreement also contains covenants that restrict the Company and its subsidiaries’ ability to incur certain types or
amounts of indebtedness, incur liens on certain assets, make material changes in corporate structure or the nature of its business, dispose of material assets,
engage in a change in control transaction, make certain foreign investments, enter into certain restrictive agreements, or engage in certain transactions with
affiliates. The Credit Agreement also contains various customary events of default, including with respect to change of control of the Company or its
ownership of the Borrower.
The obligations under the Credit Agreement are secured by substantially all of our United States domestic subsidiaries' assets and are guaranteed by the
Company and its United States domestic subsidiaries, other than the Borrower.
As a result of our entry into our Credit Agreement, and the repayment of all amounts owed under our Prior Credit Agreement, we wrote off debt issuance costs
related to our Prior Credit Agreement of approximately $1.0 million in August 2017.
Scheduled payments under the Credit Agreement for the next five years and thereafter are as follows (in thousands):
Year Ending December 31,
2019
2020
2021
2022
Total
$
$
Amount
2,350
2,400
41,050
—
45,800
The Company made principal payments of $2.2 million for the year ended December 31, 2018.
In consideration for, and concurrently with, the extension of the Initial Term Loan in accordance with the terms of the Credit Agreement, we issued a warrant
to the lender to purchase up to an aggregate of 3,863,326 shares of the Company’s common stock (representing approximately up to 7.5% of our diluted
common stock as calculated using the “treasury stock” method as defined under U.S. GAAP for the most recent fiscal quarter), with an exercise price of $1.92
per share (the "Exercise Price"). In connection with the October 15, 2018 Additional Term Loan borrowing of $4 million , we were required to, and did, issue
a warrant to the lender to purchase an aggregate of 309,066 shares of the Company's common stock at the same Exercise Price of $1.92 per share. Upon any
further borrowing of the Additional Term Loans, we will be required to issue additional warrants at the same Exercise Price to purchase up to an aggregate of
77,267 additional shares of common stock (which represents approximately 0.15% of our diluted common stock calculated using the “treasury stock” method
as defined under U.S. GAAP for the fiscal quarter ended June 30, 2017) for each $1.0 million of such Additional Term Loans. Similarly, upon our election to
extend the maturity of the Loans for additional one year periods, we will be required to issue additional warrants at the same Exercise Price to purchase up to
an aggregate of 515,110 additional shares of common stock for the first year's extension, and to purchase up to an aggregate of 772,665 additional
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shares of common stock for the second year's extension (which represent approximately 1.0% and 1.5% of our diluted common stock for the first and second
years, respectively, calculated using the “treasury stock” method as defined under U.S. GAAP for the fiscal quarter ended June 30, 2017).
The Company has accounted for these warrants as equity instruments since the warrants are indexed to the Company’s common shares and meet the criteria
for classification in shareholders’ equity. The relative fair value of the warrants issued on August 11, 2017 and October 15, 2018, were approximately $3.3
million and $0.2 million , respectively, and were treated as a discount to the associated debt. These amounts are being amortized to interest expense under the
effective interest method over the life of the loans. The Company estimated the value of the warrants using the Black-Scholes-Merton model. The key
assumptions used to value the warrants are as follows:
Exercise price
Share price on date of issuance
Volatility
Risk-free interest rate
Expected dividend yield
Contractual term (in years)
August 2017 Issuance
October 2018 Issuance
$1.92
$1.85
50.0%
1.83%
—%
5
$1.92
$1.93
55.0%
3.01%
—%
5
In addition, at the closing of the Initial Term Loan, the Company paid transaction costs of $0.6 million , which were recorded as a discount on the debt and are
being amortized to interest expense using the effective interest method over the life of the Loans, which is a period of 48 months .
Outstanding debt obligations are as follows (in thousands):
Principal amount
Less: unamortized discount and debt issuance costs
Loan payable, net of unamortized discount and debt issuance costs
Less: current maturities
Long-term loan payable, net of current maturities
5. Related Party Transactions
December 31, 2018
45,800
(2,471)
43,329
(2,224)
41,105
$
$
As discussed in Note 1(d), in August of 2018, the Company purchased Premiere from ECMC, with the purchase consideration including the issuance of
1,000,000 shares of Company common stock to ECMC and a commitment to issue ECMC additional shares of common stock as part of an earn-out
agreement. Additionally, as discussed in Note 4, since August 2017, ECMC has served as a lender to the Company with a Credit Agreement initially funded in
August 2017 at $44 million , and a balance outstanding of $45.8 million at December 31, 2018. In connection with the Credit Agreement, the Company has
issued ECMC warrants to purchase 4,172,392 shares of common stock through December 31, 2018, and ECMC’s beneficial ownership percentage on that date
was approximately 9.0% . The Company has a relationship with ECMC as a customer, with revenues of $15.5 million in 2018. Given the breadth of ECMC’s
involvement with the Company as of December 31, 2018, we have concluded that ECMC is a related party for purposes of financial statement presentation
and disclosure.
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6. Commitments and Contingencies
The Company has entered into various non-cancelable operating lease agreements for certain of the Company's office facilities and equipment with original
lease periods expiring between 2018 and 2025. Certain of these arrangements have free rent periods and /or escalating rent payment provisions, and the
Company recognizes rent expense under such arrangements on a straight-line basis. In October 2017, the Company renewed our lease agreements for office
space for approximately 50,000 square feet in Livermore, California. In December 2017, the Company entered two new lease agreements for office space for
approximately 26,000 square feet in San Angelo, Texas and 32,000 square feet in Sunrise, Florida.
Future minimum rental commitments under non-cancelable leases as of December 31, 2018 are as follows (in thousands):
Year Ending December 31,
2019
2020
2021
2022
2023
Thereafter
Total
Amount
3,427
3,393
2,514
1,901
800
1,390
13,425
$
$
Lease expense was $3.9 million , $2.7 million and $2.8 million for the years ended December 31, 2018 , 2017 and 2016 , respectively. Deferred rent is
included in other liabilities on the consolidated balance sheets and was $1.2 million and $0.7 million as of December 31, 2018 and 2017, respectively.
7. Capital Stock
Since August 15, 2012, the authorized common stock has been 500,000,000 shares and the authorized preferred stock has been 50,000,000 shares.
8. Stock-based Compensation
(a) Stock Options
Under the terms of the Performant Financial Corporation 2007 Stock Option Plan (2007 Plan), incentive and nonqualified stock options may be granted
for up to 4,000,000 shares of the Company’s authorized but unissued common stock. Options granted under the 2007 Plan generally vest over a five -year
period. The 2007 Plan was terminated on the completion of its initial public offering in August 2012. No shares of the Company's common stock are
available under our 2007 Plan other than for satisfying exercises of stock options granted under this plan prior to termination.
The terms of the Performant Financial Corporation 2012 Stock Incentive Plan (2012 Plan) provide for the granting of incentive stock options within the
meaning of Section 422 of the Internal Revenue Code (the Code) to employees and the granting of nonstatutory stock options, restricted stock, stock
appreciation rights, stock unit awards and cash-based awards to employees, non-employee directors and consultants. The Company has reserved
10,550,000 shares of common stock under the 2012 Plan. Options granted under the 2012 Plan generally vest over periods of four or five years.
The exercise price of incentive stock options shall generally not be less than 100% of the fair market value of the common stock subject to the option on
the date that the option is granted. The exercise price of nonqualified stock options shall generally not be less than 85% of the fair market value of the
common stock subject to the option on the date that the option is granted. Options issued under the two plans have a maximum term of 10 years and vest
over schedules determined by the Company's Board of Directors.
Total stock-based compensation expense charged as salaries and benefits expense in the consolidated statements of operations was $2.8 million , $3.7
million and $4.7 million for the years ended December 31, 2018 , 2017 , and 2016 , respectively. The following table sets forth a summary of the
Company's stock option activity for the years ended December 31,2018 and 2017:
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Outstanding at January 01, 2017
Granted
Forfeited
Exercised
Outstanding at December 31, 2017
Granted
Forfeited
Exercised
Outstanding December 31, 2018
Vested, exercisable, and expected to vest (1) at December 31,
2018
Exercisable at December 31, 2018
(1) Options expected to vest reflect an estimated forfeiture rate.
Outstanding
Options
Weighted
average
exercise price
per share
3,506,529
—
(260,175)
(310,156)
2,936,198
—
(208,346)
(268,750)
2,459,102 $
2,458,640 $
2,449,857 $
7.32
—
5.4
0.50
8.21
—
8.96
0.69
8.97
8.97
8.99
Weighted
average
remaining
contractual life
(Years)
5.04
Aggregate
Intrinsic Value
(in thousands)
4.48
3.25
3.24
3.23
$
$
$
273
273
271
There were no stock options granted during the years ended December 31, 2018 and December 31, 2017. The aggregate intrinsic value of our stock
options (the amount by which the market price of the stock on the date of exercise exceeded the exercise price of the option) exercised during the years
ended December 31, 2018 and 2017 was $0.5 million and $0.4 million , respectively. At December 31, 2018 and 2017 , there were $0.01 million and $0.3
million , respectively, of unrecognized stock-based compensation expense related to non-vested stock-based compensation arrangements, which the
Company expects to recognize over a weighted-average period of 0.41 years as stock-based compensation expense.
Net cash proceeds from the exercise of stock options were $0.2 million and $0.2 million during 2018 and 2017 , respectively.
The fair value of each option grant was estimated using the Black-Scholes-Merton option pricing model. Expected volatilities are calculated based on the
historical volatility data of comparable peer companies over a term comparable to the expected term of the options issued. The expected term of the award
is determined based on the average of the vesting term and the contractual term. Management monitors share option exercise and employee termination
patterns to estimate forfeiture rates within the valuation model.
We estimated the fair value of options granted using a Black-Scholes-Merton option pricing model with the following assumptions:
Expected volatility
Expected dividends
Expected term (years)
Risk-free interest rate
Weighted-average estimated fair value of options granted during the year
For the Years Ended December 31,
2017
—%
—%
—
—%
$—
2016
51.5%
—%
6.1
1.4%
$0.86
2018
—%
—%
—
—%
$—
Valuation
and
Amortization
Method
–
The Company estimates the fair value of stock options granted using the Black-Scholes-Merton option pricing
model. The fair value is then amortized on a straight-line basis over the requisite service periods of the awards, which is generally the vesting period.
Stock options typically have a ten year life from the grant date and vesting periods of four to five years. The fair value of the Company’s common stock is
based on the market price of the stock on the date of grant.
Expected
Term
–
The Company’s expected term represents the period that the Company’s stock-based awards are expected to be outstanding. For awards
granted subject only to service vesting requirements, the Company utilizes the
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simplified method under the provisions of FASB ASC 718-10-S99-1 for estimating the expected term of the stock-based award.
Expected
Volatility
–
There were no stock options granted during the year ended December 31, 2018 and December 31, 2017. If stock options had been
granted, as of December 31, 2018, expected volatility is comprised of a 100% company weighting. Before 2018, the Company calculated the expected
volatility using a composite made up of comparable peer companies. As of December 31, 2017, an approximate 88% company weighting would have
been used.
Expected
Dividend
–
The Company has never paid dividends on its common shares and currently does not intend to do so. Accordingly, the dividend
yield percentage is zero for all periods.
Risk-Free
Interest
Rate
–
The risk-free interest rate used in the Black-Scholes-Merton valuation method is based on the U.S. Treasury constant maturity
interest rate whose term is consistent with the expected life of our stock options.
(b) Restricted Stock Units
The following table summarizes restricted stock unit activity for the years ended December 31, 2018 and 2017:
Outstanding at January 01, 2017
Granted
Forfeited
Vested and converted to shares, net of units withheld for taxes
Units withheld for taxes
Outstanding at December 31, 2017
Granted
Forfeited
Vested and converted to shares, net of units withheld for taxes
Units withheld for taxes
Outstanding at December 31, 2018
Expected to vest at December 31, 2018
Number of
Awards
2,060,240 $
1,701,252
(417,725)
(540,673)
(211,507)
2,591,587 $
2,106,536
(871,184)
(645,560)
(248,143) $
2,933,236 $
2,786,574 $
Weighted
average
grant date
fair value
2.70
2.32
2.93
2.75
2.75
2.39
2.70
2.37
2.80
2.80
2.50
2.50
Share-based compensation cost for restricted stock units (RSUs) is measured based on the closing fair market value of the Company's common stock on
the date of grant. The Company recognizes share-based compensation cost over the award's requisite service period on a straight-line basis for time-based
RSUs and on a graded basis for RSUs that are contingent on the achievement of performance conditions.
The majority of RSUs that vested in 2018 and 2017 were net-share settled such that the Company withheld shares with value equivalent to the employees’
minimum statutory obligation for the applicable income and other employment taxes and remitted the cash to the appropriate taxing authorities. The total
shares withheld were approximately 248,000 shares for 2018 and approximately 212,000 shares for 2017 , and were based on the value of the RSUs on
their respective vesting dates as determined by the Company’s closing stock price. These net-share settlements had the effect of share repurchases by the
Company as they reduced the number of shares that would have otherwise been issued as a result of the vesting and did not represent an expense to the
Company.
At December 31, 2018 and 2017 , there was $ 5.4 million and $4.3 million of compensation expense yet to be recognized related to non-vested restricted
stock units. The unrecognized expense as of December 31, 2018 is expected to be recognized over the remaining weighted-average vesting period of 2.82
years. 893,703 and 752,180 of the restricted stock units vested during the years ended December 31, 2018 and 2017 , respectively. Restricted stock units
granted under the 2012 Plan generally vest over periods between one and four years.
9. Employee Benefit Plan
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The Company has a 401(k) Salary Deferral Plan (the Plan) covering all full-time employees who have met certain service requirements. Employees may
contribute a portion of their salary up to the maximum limit established by the Code for such plans. Employer contributions are discretionary. No matching
contributions were made during 2018 , 2017 and 2016 .
10. Income Taxes
The Company’s income tax expense (benefit) consists of the following (in thousands):
Current:
Federal
State
Deferred:
Federal
State
Total expense (benefit)
2018
2017
2016
$
$
$
275 $
777
1,052
(52) $
542
490
1,542 $
(5,427) $
369
(5,058)
2,643 $
1,090
3,733
(1,325) $
3,835
(1,293)
2,542
(5,379)
(1,533)
(6,912)
(4,370)
The reconciliation between the amount computed by applying the U.S. federal statutory rate of 21% for 2018, and 34% for 2017 and 2016, to income before
taxes and the Company's tax provision for 2018, 2017, and 2016 is as follows:
Federal income at the statutory rate
State income tax, net of federal benefit
Permanent differences
Work Opportunity Credit
Return to provision true-up
Valuation allowance
Rate change on deferreds
Other
2018
2017
2016
21 %
(18)%
(4)%
— %
(4)%
(18)%
— %
— %
(23)%
34 %
(8)%
1 %
2 %
(1)%
(13)%
(6)%
— %
9 %
34 %
11 %
(1)%
1 %
(1)%
(18)%
— %
2 %
28 %
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The following table summarized the components of the Company's deferred tax assets and liabilities as of December 31, 2018 and 2017 (in thousands):
Deferred tax assets
Bad debt reserve
Vacation accrual
Workers compensation
Nonqualified stock options
Debt issuance costs
Acquisition costs
State tax deferral
Deferred revenue
State tax credits
Net operating loss
Estimated liability for appeals
Identifiable intangible assets
Interest expense limitation
Other
Total deferred tax assets
Valuation allowance
Total deferred tax assets net of valuation allowance
Deferred tax liabilities:
Identifiable intangible assets
Fixed assets
Other
Total deferred tax liabilities
Net deferred tax assets (liabilities)
2018
2017
$
—
$
551
138
3,361
6
—
502
—
452
3,876
67
153
1,498
497
11,101
(8,397)
2,704
—
(2,692)
(34)
(2,726)
$
(22)
$
11
510
241
3,917
27
23
384
15
452
453
3,956
—
—
448
10,437
(5,772)
4,665
(733)
(3,430)
(34)
(4,197)
468
As of December 31, 2018 , and 2017, the Company recorded a valuation allowance against deferred tax assets that are not more likely than not realizable
based upon the assessment of all positive and negative evidence. The total amount of the valuation allowance at December 31, 2018 is $8.4 million , which is
an increase of $2.6 million from the amount recorded as of December 31, 2017 .
On December 22, 2017, President Trump signed into law the “Tax Cuts and Jobs Act” (TCJA) that significantly reforms the Internal Revenue Code of 1986,
as amended. The TCJA, among other things, includes changes to U.S. federal tax rates, imposes significant additional limitations on the deductibility of
interest, allows for the expensing of capital expenditures, and puts into effect the migration from a “worldwide” system of taxation to a territorial system. The
Company calculated the impact of the Tax Act in its year end income tax provision in accordance with its understanding of the Tax Act and guidance available
at the time, and provided for the provisional income tax expense in the fourth quarter of 2017. The Company completed its analysis of the impacts of the 2017
Tax Act in the fourth quarter of 2018 with no change to its provisional estimates.
In assessing the realizability of deferred tax assets, management considers whether it is more likely than not that some portion or all of the deferred tax assets
will not be realized. The ultimate realization of deferred tax assets is dependent upon the generation of future taxable income during the periods in which those
temporary differences become deductible. Management considers the reversal of deferred tax liabilities (including the impact of available carryback and
carryforward periods), projected future taxable income and tax-planning strategies in making this assessment. Based upon the Company’s cumulative three
year loss position and projections for future taxable income over the periods in which the deferred tax assets are deductible, management believes it is more
likely than not that the Company will be unable to realize the benefits of these deductible differences. The amount of the deferred tax asset considered
realizable, however, could change in the near term if estimates of future taxable income during the carryforward period change.
F-26
Table of Contents
The Company has state tax credits of $0.5 million , which will expire in 2024. The Company has state net operating loss carryforwards of $20.7 million which
will start to expire in 2020 and a federal net operating loss carryforward of $8.9 million which will can be carried forward indefinitely. The Company has $0.2
million of federal tax credit carryforwards which begin to expire in 2037.
The following table reconciles the Company’s unrecognized tax benefits as of December 31, 2018 from its unrecognized tax benefits as of December 31, 2016
(in thousands):
Unrecognized tax benefits balance at December 31, 2016
Increase related to prior year tax positions
Decrease related to prior year tax positions
Increase related to current year tax positions
Settlements
Lapse of statute of limitations
Unrecognized tax benefits balance at December 31, 2017
Increase related to prior year tax positions
Decrease related to prior year tax positions
Increase related to current year tax positions
Settlements
Lapse of statute of limitations
Unrecognized tax benefits balance at December 31, 2018
$
$
987
362
—
—
—
(267)
1,082
602
—
—
—
(83)
1,601
At December 31, 2018 and 2017 , the Company had approximately $1.6 million and $1.1 million of unrecognized tax benefits, respectively. The Company
does not expect any significant change in unrecognized tax benefits during the next twelve months. The Company records interest expense and penalties
related to unrecognized tax benefits in income tax expense. The amount of accrued interest was $0.2 million and $0.2 million at December 31, 2018 and 2017 ,
respectively. No penalties were recognized in 2018 or accrued at December 31, 2018 , and 2017 respectively. The Company has unrecognized tax benefits of
approximately $1.6 million which, if recognized, would favorably affect the Company’s effective income tax rate.
We file income tax returns with the U.S. federal government and various state jurisdictions. The Company operates in a number of state and local
jurisdictions, most of which have never audited the Company's records. Accordingly, the Company is subject to state and local income tax examinations based
upon the various statutes of limitations in each jurisdiction. For tax years before 2015, the Company is no longer subject to Federal and certain other state tax
examinations. The company is currently being examined by the Franchise Tax Board of California for tax years 2011 through 2014.
11. Other Commitments and Contingencies
(a) Trust Funds
The Company collects principal and interest payments and collection costs on defaulted loans for various contracting agencies. Cash collections for some
of the Company’s customers are held in trust in bank accounts controlled by the Company. The Company remits trust funds to the contracting agencies on
a regular basis. The amount of cash held in trust and the related liability are separated from and not included in the Company’s consolidated financial
statements. Cash held in trust for customers totaled $3.2 million and $0.7 million at December 31, 2018 and 2017 , respectively.
(b) Litigation
The Company, during the ordinary course of its operations, has been named in various legal suits and claims, several of which are still pending. In the
opinion of management and the Company’s legal counsel, such legal actions will not have a material effect on the Company’s consolidated financial
position or results of operations or cash flows.
12. Subsequent Events
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Table of Contents
The Company has evaluated subsequent events through the date these consolidated financial statements were issued and there are no other events that have
occurred that would require adjustments or disclosures to the consolidated financial statements, other than the amendment to the Credit Agreement as
discussed in Note 4.
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Table of Contents
Pursuant to the requirements of Section 13 or 15(d) of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its
behalf by the undersigned, thereunto duly authorized.
SIGNATURES
PERFORMANT FINANCIAL CORPORATION
By:
/s/ Lisa C. Im
Lisa C. Im
Chief Executive Officer
Date: April 1, 2019
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints Lisa C. Im and Ian Johnston,
and each of them, his or her true and lawful attorneys-in-fact, each with full power of substitution, for him or her in any and all capacities, to sign any amendments
to this report on Form 10-K and to file the same, with exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission,
hereby ratifying and confirming all that each of said attorneys-in-fact or their substitute or substitutes may do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Exchange Act of 1934, this report has been signed below by the following persons on behalf of the
registrant and in the capacities and on the dates indicated.
Name
/s/ Lisa C. Im
Lisa C. Im
/s/ Ian Johnston
Ian Johnston
/s/ Todd R. Ford
Todd R. Ford
/s/ Brian P. Golson
Brian P. Golson
/s/ Bradley M. Fluegel
Bradley M. Fluegel
/s/ Bruce Hansen
Bruce Hansen
/s/ William D. Hansen
William D. Hansen
Title
Date
Chief Executive Officer (Principal Executive Officer) and
April 1, 2019
Board Chair
Vice President and Chief Accounting Officer (Principal
April 1, 2019
Financial Officer)
Director
Director
Director
Director
Director
April 1, 2019
April 1, 2019
April 1, 2019
April 1, 2019
April 1, 2019
Table of Contents
SCHEDULE II – VALUATION AND QUALIFYING ACCOUNTS
For the years ended December 31, 2018 , 2017 and 2016
Allowance for doubtful accounts (in thousands):
Description
2018
2017
2016
Balance at
Beginning of
Period
Additions
Charged
against Expense
Recoveries
Charge-offs
Balance at
End of Period
$
$
$
35
224
386
22
35
—
—
—
(162)
(35) $
(224) $
— $
22
35
224
Estimated allowance and liability for appeals (in thousands):
Description
2018
2017
Balance at
Beginning of Period
18,817
19,305
$
$
2016
*Includes the release of $18.5 million related to the January 31, 2018 termination of the CMS Region A RAC contract.
19,118
2,085
$
Additions
Charged
against Revenue
Appeals Found
in Providers
Favor
Balance at
End of Period
441
300
(19,048) * $
(788)
(1,898)
$
$
210
18,817
19,305
Deferred tax asset valuation allowance (in thousands):
Description
2018
2017
2016
Balance at
Beginning of Period
Additions
Releases
Balance at
End of Period
$
$
$
5,772
3,857
452
2,625
1,915
3,405
— $
— $
— $
8,397
5,772
3,857
Exhibit 10.16
THIRD AMENDMENT TO
CREDIT AGREEMENT
THIS THIRD AMENDMENT TO CREDIT AGREEMENT (the “ Amendment ”), dated as of March 21, 2019, is by and among Performant Business Services,
Inc., a Nevada corporation (the “ Borrower ”), and ECMC Group, Inc., a Delaware non-profit corporation (the “ Lender ”).
RECITALS:
A. The Borrower and Lender are parties to that certain Credit Agreement dated as of August 7, 2017 and amended by the Second Amendment to the Credit
Agreement dated as of August 31, 2018 (collectively referred to as the “ Credit Agreement ”).
B. The Parties desire to amend the Credit Agreement on the terms and subject to the conditions set forth herein.
NOW, THEREFORE, in consideration of the above recitals and other good and valuable consideration, the receipt of which is hereby acknowledged, the Borrower
and Lender hereby agree as follows:
1. Defined terms . All capitalized terms used in this Amendment shall have the meanings set forth in the Credit Agreement, as amended hereby, except
where the context otherwise requires or as otherwise provided herein.
2. Amendments.
a.
Section 2.3 of the Credit Agreement is hereby amended and restated in full as follows:
“2.3. Extension of Maturity Date .
Borrower may, by written notice to Lender given no later than July 31, 2021, extend the Maturity Date for a one year period commencing on the
then applicable Maturity Date and ending on fifth anniversary of the Closing Date, provided that concurrently with such written notice Borrower
shall deliver to Lender Warrants representing the right to acquire 1% of the Diluted Common Equity of Parent. If Borrower extends the Maturity
Date pursuant to the immediately preceding sentence, Borrower may, by written notice to Lender given no later than July 31, 2022, extend the
then applicable Maturity Date for an additional one year period commencing on the then applicable Maturity Date and ending on the sixth
anniversary of the Closing Date, provided that concurrently with such written notice Borrower shall deliver to Lender Warrants representing the
right to acquire 1.5% of the Diluted Common Equity of Parent. In no event shall the Maturity Date be extended beyond the sixth anniversary of
the Closing Date. In addition to the issuance of the warrants described above, the right of the Borrower to make any extension under this Section
2.3, is subject to satisfaction of the following conditions on the date of notice of extension from the Borrower and on effective date of such
extension:
(a) the representations and warranties of Borrower or any other Loan Party set forth in this Agreement and the other Loan Documents
shall be true and correct in all material respects with the same effect as if then made (except to the extent stated to relate to a specific earlier date,
in which case such representations and warranties shall be true and correct in all material respects as of such earlier date); and
(b) no Event of Default or Default shall have then occurred and be continuing.”
b. Section 7.14.4 of the Credit Agreement is hereby amended in its entirety to provide as follows:
“7.14.4 Premiere Acquisition .
Notwithstanding anything to the contrary in this Section 7.14, neither the Borrower nor any other Loan Party shall be required to comply with
the financial covenants set forth in Sections
1
Exhibit 10.16
7.14.1 and 7.14.2 above with respect to each Computation Period ending on the last day of the first six Fiscal Quarters beginning with the
Borrower’s fourth Fiscal Quarter of 2018.”
3. Conditions to Effectiveness . This Amendment shall become effective as of the date first above written (the “ Effective Date ”) when, and only wen this
Amendment has been executed on behalf of each of the Lender and the Borrower and delivered by each to the other party, and the Lender shall have
received counterparts of a Reaffirmation in form satisfactory to the Lender, dated as of even date herewith, executed by the Guarantors.
4. Representations, Warranties and Covenants . To induce the Lender to enter into this Amendment, the Borrower hereby represents and warrants to the
Lender on the date hereof as follows:
(a) the execution, delivery and performance by the Borrower of this Amendment does not and will not (i) require any consent or approval of any
government agency or authority (other than any approval which has been obtained and is in full force and effect), (ii) conflict with (x) any provision of
applicable law, (y) the charter, by-laws or other organizational documents of Borrower or any other Loan Party or (z) any agreement, indenture,
instrument or other document, or any judgment, order or decree, which is binding upon Borrower or any other Loan Party or any of their respective
properties or (iii) require, or result in, the creation or imposition of any Lien on any asset of Borrower, any Subsidiary or any other Loan Party (other than
Liens in favor of Lender created pursuant to the Collateral Documents) in each case of the foregoing clauses (i), (ii) and (ii), except where the failure to do
so could not reasonably be expected to result in a Material Adverse Effect.
(b) the representations and warranties contained in the Credit Agreement (as may be amended by this Amendment) are true and correct as of the date
hereof as though made on that date, except to the extent such representations and warranties specifically refer to an earlier date, in which case they shall
be true and correct as of such earlier date.
(c) the Credit Agreement, as amended by this Amendment, is the legal, valid and binding obligation of the Borrower and is enforceable against the
Borrower in accordance with its terms, subject to bankruptcy, insolvency and similar laws affecting the enforceability of creditors' rights generally and to
general principles of equity.
(d) after giving effect to this Amendment, there does not exist any Default or Event of Default.
5. Reference to and Effect on the Loan Documents .
(a) From and after the date of this Amendment, each reference in the Credit Agreement to “this Agreement”, “hereunder”, “hereof”, “herein” or words
of like import referring to the Credit Agreement, and each reference to the “Credit Agreement”, “thereunder”, “thereof”, “therein” or words of like import
referring to the Credit Agreement in any other Loan Document shall mean and be a reference to the Credit Agreement, as amended hereby.
(b) Except as specifically set forth above, the Credit Agreement and each additional Loan Document remains in full force and effect and is hereby
ratified and confirmed.
(c) The execution, delivery and effectiveness of this Amendment shall not, except as expressly provided herein, operate as a waiver of any right, power
or remedy of the Lender under the Credit Agreement or any other Loan Document nor constitute a waiver of any provision of the Credit Agreement or
any such other Loan Document.
6. Entire Agreement . The Credit Agreement, as amended by this Amendment, collectively sets forth the entire understanding and agreements of the parties
hereto in relation to the subject matter hereof and supersede any prior negotiations and agreements between the parties relative to such subject matter. No
promise, condition, representation or warranty, express or implied, not set forth in the Credit Agreement or any other Loan Document, as amended by this
Amendment, shall bind any party hereto, and none of the Lender or the Borrower have relied on any such promise, condition, representation or warranty.
2
Exhibit 10.16
7. Counterparts . This Amendment may be executed in one or more counterparts, each of which and together shall be considered an original, and together
they shall constitute one and the same instrument.
8. Enforceability . Should any one or more of the provisions of this Amendment be determined to be illegal or unenforceable as to one or more of the parties
hereto, all other provisions nevertheless shall remain effective and binding on the parties hereto.
9. Governing Law; Jurisdiction; Venue; Jury Trial . THIS AMENDMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF MINNESOTA, WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES. THIS AMENDMENT SHALL BE
SUBJECT TO THE JURISDICTION, VENUE, AND JURY TRIAL PROVISIONS OF THE CREDIT AGREEMENT.
10. Headings; Recitals . Section headings in this Amendment are included herein for convenience of reference only and shall not constitute a part of this
Amendment for any other purpose. The Recitals hereto are incorporated herein by reference.
11. Successors and Assigns . This Amendment shall be binding upon and inure to the benefit of the Borrower and the Lender, and their respective, permitted,
successors, assigns.
12. Conflict or Inconsistency . In the event of any conflict or inconsistency between the terms and conditions of the Credit Agreement and this Amendment,
the terms and conditions of this Amendment shall prevail.
IN WITNESS WHEREOF , the parties have caused this Amendment to be duly executed and delivered by their duly authorized officers as of the date first set
forth above.
ECMC GROUP, INC. PERFORMANT BUSINESS SERVICES, INC.
As Lender As Borrower
By: /s/ Greg Van Guilder By: /s/ Lisa Im
Its: Chief Investment Officer Its: Chief Executive Officer
Date: 3-20-2019 Date: 3-21-2019
3
AFFIRMATION
Each of the undersigned, Guarantors under that certain Guarantee and Collateral Agreement dated as of August 11, 2017 (the “ GCA ”), hereby consents to the
terms of that certain Third Amendment to Credit Agreement dated as of March 21, 2019 (the “ Third Amendment ”) to which this Reaffirmation is attached,
between ECMC Group, Inc. and Performant Business Services, Inc., and hereby acknowledges that the obligations of each of the undersigned under the GCA and
the other Loan Documents (as defined in the Credit Agreement) to which any of them is a party, continue in full force and effect from and after the Effective Date
(as defined in the Third Amendment) of the Third Amendment after giving effect to the Third Amendment.
Exhibit 10.16
PERFORMANT FINANCIAL CORPORATION, a Delaware corporation
By: /s/ Lisa Im
Name: Lisa Im
Title: CEO
PERFORMANT RECOVERY, INC., a California corporation
By: /s/ Lisa Im
Name: Lisa Im
Title: CEO
PERFORMANT TECHNOLOGIES, LLC., a California limited liability company
By: /s/ Harold Leach
Name: Harold Leach
Title: Manager
PREMIERE CREDIT OF NORTH AMERICA, LLC, an Indiana limited liability company
By: /s/ Steven Sturgeon
Name: Steven Sturgeon
Title: Vice President Operations
HEALTHCARE BILLING ADMINISTRATORS, LLC, an Indiana limited liability company
Dated as of March 21, 2019.
By: /s/ Steven Sturgeon
Name: Steven Sturgeon
Title: Vice President Operations
4
SUBSIDIARIES
Exhibit 21
Company Name
Performant Business Services, Inc.
Performant Recovery, Inc.
Performant Technologies, Inc.
Performant Europe Ltd.
Premiere Credit of North America, LLC.
Healthcare Billing Administrators, LLC.
State of Incorporation
Nevada
California
California
London, UK
Indiana
Indiana
Consent of Independent Registered Public Accounting Firm
Exhibit 23.1
The Board of Directors
Performant Financial Corporation:
We consent to the incorporation by reference in the registration statements (Nos. 333‑220426 and 333‑206295) on Form S‑8 and (Nos. 333-220423 and 333-
200627) on Form S-3 of Performant Financial Corporation and subsidiaries of our report dated March 14, 2018, with respect to the consolidated balance sheet of
Performant Financial Corporation as of December 31, 2017, and the related consolidated statements of operations, comprehensive income (loss), changes in
stockholders’ equity, and cash flows for each of the years in the two-year period ended December 31, 2017, and the related notes and financial statement Schedule
II, before the effects of the adjustments and the related required disclosures to retroactively apply the changes in accounting related to the adoption of Financial
Accounting Standards Board Accounting Standards Codification Topic 606 "Revenue from Contracts with Customers" and Accounting Standards Update (ASU)
2016-15, “Statement of Cash Flows: Classification of Certain Cash Receipts and Cash Payments” described in Note 1 (l) and (u), which report appears in the
December 31, 2018 annual report on Form 10‑K of Performant Financial Corporation.
/s/ KPMG LLP
San Francisco, California
April 1, 2019
Consent of Independent Registered Public Accounting Firm
Exhibit 23.2
The Board of Directors
Performant Financial Corporation:
We consent to the incorporation by reference in the Registration Statements on Form S-3 (File No. 333-220423 and 333- 200627) and Form S-8 (File No. 333-
220426 and 333- 206295) of Performant Financial Corporation and subsidiaries (the "Company") of our report dated April 1, 2019, with respect to the consolidated
balance sheet of the Company as of December 31, 2018, and the related consolidated statements of operations, comprehensive income (loss), changes in
stockholders' equity, and cash flows for the year ended December 31, 2018, and the related notes and financial statement Schedule II, which report appears in the
December 31, 2018 annual report on Form 10-K of the Company.
/s/ BAKER TILLY VIRCHOW KRAUSE, LLP
San Francisco, California
April 1, 2019
Exhibit 31.1
I, Lisa C. Im, certify that:
1. I have reviewed this annual report on Form 10-K of Performant Financial Corporation;
CERTIFICATION
2. Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements
made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;
3. Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial
condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report;
4. The registrant’s other certifying officer(s) and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act
Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and
have:
a. Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure
that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during
the period in which this report is being prepared;
b. Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our
supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in
accordance with generally accepted accounting principles;
c. Evaluated the effectiveness of the registrant’s disclosure controls and procedures and presented in this report our conclusions about the effectiveness
of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and
d. Disclosed in this report any change in the registrant’s internal control over financial reporting that occurred during the registrant’s most recent fiscal
quarter (the registrant’s fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrant’s
internal control over financial reporting; and
5. The registrant’s other certifying officer(s) and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the
registrant’s auditors and the audit committee of the registrant’s board of directors (or persons performing the equivalent functions):
a. All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably
likely to adversely affect the registrant’s ability to record, process, summarize and report financial information; and
b. Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant’s internal control
over financial reporting.
Dated: April 1, 2019
/s/ Lisa C. Im
Lisa C. Im
Chief Executive Officer
Exhibit 31.2
I, Ian Johnston, certify that:
1. I have reviewed this annual report on Form 10-K of Performant Financial Corporation;
CERTIFICATION
2. Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements
made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;
3. Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial
condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report;
4. The registrant’s other certifying officer(s) and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act
Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and
have:
a. Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure
that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during
the period in which this report is being prepared;
b. Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our
supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in
accordance with generally accepted accounting principles;
c. Evaluated the effectiveness of the registrant’s disclosure controls and procedures and presented in this report our conclusions about the effectiveness
of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and
d. Disclosed in this report any change in the registrant’s internal control over financial reporting that occurred during the registrant’s most recent fiscal
quarter (the registrant’s fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrant’s
internal control over financial reporting; and
5. The registrant’s other certifying officer(s) and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the
registrant’s auditors and the audit committee of the registrant’s board of directors (or persons performing the equivalent functions):
a. All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably
likely to adversely affect the registrant’s ability to record, process, summarize and report financial information; and
b. Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant’s internal control
over financial reporting.
Dated: April 1, 2019
/s/ Ian Johnston
Ian Johnston
Vice President and Chief Accounting Officer (Principal
Financial Officer)
SECTION 1350 CERTIFICATIONS
Exhibit 32.1
I, Lisa C. Im, Chief Executive Officer of Performant Financial Corporation (the “Company”), certify, for the purposes of 18 U.S.C. § 1350, as adopted pursuant to
§ 906 of the Sarbanes-Oxley Act of 2002, that to my knowledge:
(1)
the Annual Report of the Company on Form 10-K for the year ended December 31, 2018 as filed with the Securities and Exchange Commission on the
date hereof (the “Report”), which accompanies this Certificate, fully complies with the requirements of Section 13(a) or 15(d) of the Securities Exchange
Act of 1934; and
(2)
the information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of the Company.
Dated: April 1, 2019
/s/ Lisa C. Im
Lisa C. Im
Chief Executive Officer
SECTION 1350 CERTIFICATIONS
Exhibit 32.2
I, Ian Johnston, Vice President and Chief Accounting Officer (Principal Financial Officer) of Performant Financial Corporation (the “Company”), certify, pursuant
to 18 U.S.C. § 1350, as adopted pursuant to § 906 of the Sarbanes-Oxley Act of 2002, that to my knowledge:
(1)
the Annual Report of the Company on Form 10-K for the year ended December 31, 2018 as filed with the Securities and Exchange Commission on the
date hereof (the “Report”), which accompanies this Certificate, fully complies with the requirements of Section 13(a) or 15(d) of the Securities Exchange
Act of 1934; and
(2)
the information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of the Company.
Dated: April 1, 2019
/s/ Ian Johnston
Ian Johnston
Vice President and Chief Accounting Officer (Principal
Financial Officer)