Table of
Contents
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington, DC 20549
FORM 10-Q
x
QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
For the Quarterly Period Ended September 30, 2009
OR
o
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 1-14472
CORNELL
COMPANIES, INC.
(Exact Name of Registrant as Specified in Its
Charter)
Delaware
|
|
76-0433642
|
(State or Other Jurisdiction
of Incorporation or Organization)
|
|
(I.R.S. Employer
Identification No.)
|
|
|
|
1700 West Loop South, Suite 1500, Houston,
Texas
|
|
77027
|
(Address of Principal Executive Offices)
|
|
(Zip Code)
|
Registrants Telephone Number, Including Area Code:
(713) 623-0790
Indicate
by a 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
o
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 (§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
o
No
o
Indicate
by check mark whether the registrant is a large accelerated filer, an
accelerated filer, a non-accelerated filer, or a smaller reporting company. See
definitions of large accelerated filer, accelerated filer, and smaller
reporting company in Rule 12b-2 of the Exchange Act. (Check one):
Large accelerated
filer
o
|
|
Accelerated filer
x
|
|
|
|
Non-accelerated
filer
o
|
|
Smaller reporting
company
o
|
(Do not check if a
smaller reporting company)
|
|
|
Indicate
by check mark whether the registrant is a shell company (as defined in Rule 12b-2
of the Exchange Act).
Yes
o
No
x
At
November 6, 2009, the registrant had 14,928,619 shares of common stock
outstanding.
Table of
Contents
Forward-Looking Information
The
statements included in this quarterly report regarding future financial
performance and results of operations and other statements that are not
historical facts are forward-looking statements within the meaning of Section 27A
of the Securities Act of 1933 and Section 21E of the Securities Exchange
Act of 1934. Forward-looking statements
in this quarterly report include, but are not limited to, statements about the
following subjects:
·
revenues,
·
revenue mix,
·
expenses, including personnel and medical
costs,
·
results of operations,
·
operating margins,
·
supply and demand,
·
market outlook in our various markets,
·
our other expectations with regard to
market outlook,
·
utilization,
·
parolee, detainee, inmate and youth
offender trends,
·
pricing and per diem rates,
·
contract commencements,
·
new contract opportunities,
·
operations at, future contracts for, and
results from our Regional Correctional Center,
·
the timing (including ramp of facility
population) and other aspects of planned expansions, including without
limitation the D. Ray James Prison and Walnut Grove Youth Correctional Facility
expansions, and client contracts for such facilities,
·
the construction
and
lease of the new facility in Hudson,
Colorado and our contract with the Alaska Department of Corrections, including
the timing of the ramp of facility population,
·
adequacy of insurance,
·
debt levels,
·
debt reduction,
·
common stock repurchases,
·
the effect of FIN No. 48,
·
our effective tax rate,
·
tax assessments,
·
results and effects of legal proceedings
and governmental audits and assessments,
·
liquidity, including future liquidity and
our ability to obtain financing,
·
financial markets,
·
cash flow from operations,
·
adequacy of cash flow for our
obligations,
·
capital requirements,
·
capital expenditures,
·
effects of accounting changes and
adoption of accounting policies,
·
changes in laws and regulations,
·
adoption of accounting policies,
·
benefit payments, and
·
changes in laws and regulations.
Forward-looking
statements in this quarterly report are identifiable by, but not limited to,
the use of the following words and other similar expressions among others:
·
anticipates
·
believes
·
budgets
·
could
·
estimates
·
expects
·
forecasts
3
Table of Contents
·
intends
·
may
·
might
·
plans
·
predicts
·
projects
·
scheduled
·
should
Such statements
are subject to numerous risks, uncertainties and assumptions, including, but
not limited to:
·
those described (in the Companys 2008
Annual Report on Form 10-K) under Item 1A. Risk Factors, as filed with
the SEC,
·
the adequacy of sources of liquidity,
·
the effect and results of litigation,
audits and contingencies, and
·
other factors discussed in this quarterly
report and in the Companys other filings with the SEC, which are available
free of charge on the SECs website at
www.sec.gov
.
Should one or more of
these risks or uncertainties materialize, or should underlying assumptions
prove incorrect, actual results may vary materially from those indicated.
All subsequent written
and oral forward-looking statements attributable to the Company or to persons
acting on our behalf are expressly qualified in their entirety by reference to
these risks and uncertainties. You should not place undue reliance on
forward-looking statements. Each forward-looking statement speaks only as of
the date of the particular statement, and we undertake no obligation to
publicly update or revise any forward-looking statements.
4
Table of Contents
PART I FINANCIAL INFORMATION
ITEM 1.
Financial
Statements.
CORNELL COMPANIES, INC.
CONSOLIDATED BALANCE SHEETS
(Unaudited)
(in thousands, except share data)
|
|
September 30,
2009
|
|
December 31,
2008
|
|
ASSETS
|
|
|
|
|
|
CURRENT ASSETS:
|
|
|
|
|
|
Cash and cash equivalents
|
|
$
|
4,972
|
|
$
|
14,613
|
|
Accounts receivable trade (net of allowance for
doubtful accounts of $4,899 and $4,272, respectively)
|
|
74,971
|
|
64,622
|
|
Other receivables
|
|
4,523
|
|
4,766
|
|
Bond fund payment account and other restricted
assets
|
|
26,904
|
|
31,370
|
|
Deferred tax assets
|
|
10,562
|
|
9,151
|
|
Prepaid expenses and other
|
|
5,702
|
|
6,368
|
|
Total current assets
|
|
127,634
|
|
130,890
|
|
PROPERTY AND EQUIPMENT, net
|
|
451,944
|
|
450,354
|
|
OTHER ASSETS:
|
|
|
|
|
|
Debt service reserve fund
|
|
23,370
|
|
23,750
|
|
Goodwill, net
|
|
13,308
|
|
13,308
|
|
Intangible assets, net
|
|
1,374
|
|
2,320
|
|
Deferred costs and other
|
|
18,318
|
|
16,299
|
|
Total assets
|
|
$
|
635,948
|
|
$
|
636,921
|
|
|
|
|
|
|
|
LIABILITIES AND STOCKHOLDERS
EQUITY
|
|
|
|
|
|
|
|
|
|
|
|
CURRENT LIABILITIES:
|
|
|
|
|
|
Accounts payable and accrued liabilities
|
|
$
|
57,432
|
|
$
|
69,093
|
|
Current portion of long-term debt
|
|
13,413
|
|
12,412
|
|
Total current liabilities
|
|
70,845
|
|
81,505
|
|
LONG-TERM DEBT, net of current
portion
|
|
292,798
|
|
308,070
|
|
DEFERRED TAX LIABILITIES
|
|
18,854
|
|
17,491
|
|
OTHER LONG-TERM LIABILITIES
|
|
1,973
|
|
1,688
|
|
Total liabilities
|
|
384,470
|
|
408,754
|
|
|
|
|
|
|
|
COMMITMENTS AND CONTINGENCIES
|
|
|
|
|
|
|
|
|
|
|
|
STOCKHOLDERS EQUITY:
|
|
|
|
|
|
Preferred stock, $.001 par value, 10,000,000
shares authorized, none issued
|
|
|
|
|
|
Common stock, $.001 par value, 30,000,000 shares
authorized, 16,412,802 and 16,238,685 shares issued and 14,924,916 and
14,732,522 shares outstanding, respectively
|
|
16
|
|
16
|
|
Additional paid-in capital
|
|
167,534
|
|
164,746
|
|
Retained earnings
|
|
92,500
|
|
73,318
|
|
Accumulated other comprehensive income
|
|
1,485
|
|
1,676
|
|
Treasury stock (1,487,886 and 1,506,163 shares of
common stock, at cost, respectively)
|
|
(11,888
|
)
|
(12,034
|
)
|
Total Cornell
Companies, Inc.
|
|
249,647
|
|
227,722
|
|
Non-controlling interest
|
|
1,831
|
|
445
|
|
Total stockholders equity
|
|
251,478
|
|
228,167
|
|
Total liabilities and
stockholders equity
|
|
$
|
635,948
|
|
$
|
636,921
|
|
The accompanying
notes are an integral part of these consolidated financial statements.
5
Table of Contents
CORNELL COMPANIES,
INC.
CONSOLIDATED
STATEMENTS OF OPERATIONS AND COMPREHENSIVE INCOME
(Unaudited)
(in thousands,
except per share data)
|
|
Three Months Ended
September 30,
|
|
Nine Months Ended
September 30,
|
|
|
|
2009
|
|
2008
|
|
2009
|
|
2008
|
|
|
|
|
|
|
|
|
|
|
|
REVENUES
|
|
$
|
103,279
|
|
$
|
95,187
|
|
$
|
308,323
|
|
$
|
285,225
|
|
OPERATING
EXPENSES, EXCLUDING DEPRECIATION AND AMORTIZATION
|
|
74,419
|
|
71,234
|
|
222,044
|
|
209,723
|
|
DEPRECIATION
AND AMORTIZATION
|
|
4,460
|
|
4,466
|
|
14,093
|
|
12,843
|
|
GENERAL AND
ADMINISTRATIVE EXPENSES
|
|
5,806
|
|
5,450
|
|
18,214
|
|
19,217
|
|
|
|
|
|
|
|
|
|
|
|
INCOME FROM
OPERATIONS
|
|
18,594
|
|
14,037
|
|
53,972
|
|
43,442
|
|
|
|
|
|
|
|
|
|
|
|
INTEREST
EXPENSE
|
|
6,500
|
|
6,162
|
|
19,435
|
|
19,074
|
|
INTEREST
INCOME
|
|
(124
|
)
|
(408
|
)
|
(530
|
)
|
(1,459
|
)
|
|
|
|
|
|
|
|
|
|
|
INCOME BEFORE
PROVISION FOR INCOME TAXES AND NON-CONTROLLING INTEREST
|
|
12,218
|
|
8,283
|
|
35,067
|
|
25,827
|
|
|
|
|
|
|
|
|
|
|
|
PROVISION FOR
INCOME TAXES
|
|
5,012
|
|
3,368
|
|
14,499
|
|
10,931
|
|
|
|
|
|
|
|
|
|
|
|
NET INCOME
|
|
7,206
|
|
4,915
|
|
20,568
|
|
14,896
|
|
|
|
|
|
|
|
|
|
|
|
NON-CONTROLLING
INTEREST
|
|
513
|
|
87
|
|
1,386
|
|
87
|
|
|
|
|
|
|
|
|
|
|
|
INCOME
AVAILABLE TO STOCKHOLDERS
|
|
$
|
6,693
|
|
$
|
4,828
|
|
$
|
19,182
|
|
$
|
14,809
|
|
|
|
|
|
|
|
|
|
|
|
EARNINGS PER
SHARE:
|
|
|
|
|
|
|
|
|
|
BASIC
|
|
$
|
.45
|
|
$
|
.33
|
|
$
|
1.29
|
|
$
|
1.01
|
|
DILUTED
|
|
$
|
.45
|
|
$
|
.32
|
|
$
|
1.28
|
|
$
|
1.00
|
|
|
|
|
|
|
|
|
|
|
|
NUMBER OF
SHARES USED IN PER SHARE COMPUTATION:
|
|
|
|
|
|
|
|
|
|
BASIC
|
|
14,886
|
|
14,734
|
|
14,880
|
|
14,715
|
|
DILUTED
|
|
14,995
|
|
14,915
|
|
14,968
|
|
14,867
|
|
|
|
|
|
|
|
|
|
|
|
COMPREHENSIVE
INCOME:
|
|
|
|
|
|
|
|
|
|
Net income
|
|
$
|
7,206
|
|
$
|
4,915
|
|
$
|
20,568
|
|
$
|
14,896
|
|
Other
comprehensive income, net of tax: Unrealized gain on derivative instruments,
net of tax provision of $324 and $406 in 2008
|
|
|
|
467
|
|
|
|
584
|
|
Total other comprehensive
income, net of tax
|
|
7,206
|
|
5,382
|
|
20,568
|
|
15,480
|
|
Comprehensive
income attributable to non-controlling interest
|
|
513
|
|
87
|
|
1,386
|
|
87
|
|
Comprehensive
income attributable to Cornell Companies, Inc.
|
|
$
|
6,693
|
|
$
|
5,295
|
|
$
|
19,182
|
|
$
|
15,393
|
|
The accompanying notes are an integral part of these consolidated
financial statements.
6
Table of
Contents
CORNELL COMPANIES, INC.
CONSOLIDATED STATEMENT OF
STOCKHOLDERS EQUITY
AND COMPREHENSIVE INCOME
FOR THE NINE MONTHS ENDED SEPTEMBER 30, 2009
(Unaudited)
(in thousands, except share data)
|
|
Common Stock
|
|
Additional
|
|
|
|
|
|
|
|
Accumulated
Other
|
|
Non-
|
|
Total
|
|
|
|
|
|
|
|
Par
|
|
Paid-In
|
|
Retained
|
|
Treasury Stock
|
|
Comprehensive
|
|
Controlling
|
|
Stockholders
|
|
Comprehensive
|
|
|
|
Shares
|
|
Value
|
|
Capital
|
|
Earnings
|
|
Shares
|
|
Cost
|
|
Income
|
|
Interest
|
|
Equity
|
|
Income
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
BALANCES
AT DECEMBER 31, 2008
|
|
16,238,685
|
|
$
|
16
|
|
$
|
164,746
|
|
$
|
73,318
|
|
1,506,163
|
|
$
|
(12,034
|
)
|
$
|
1,676
|
|
$
|
445
|
|
$
|
228,167
|
|
$
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
NET
INCOME
|
|
|
|
|
|
|
|
19,182
|
|
|
|
|
|
|
|
1,386
|
|
20,568
|
|
19,182
|
|
COMPREHENSIVE
INCOME
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
$
|
19,182
|
|
EXERCISE
OF STOCK OPTIONS
|
|
2,550
|
|
|
|
32
|
|
|
|
|
|
|
|
|
|
|
|
32
|
|
|
|
INCOME
TAX BENEFIT/(EXPENSE) FROM STOCK OPTION EXERCISES
|
|
|
|
|
|
(71
|
)
|
|
|
|
|
|
|
|
|
|
|
(71
|
)
|
|
|
DEFERRED
AND OTHER STOCK COMPENSATION
|
|
158,783
|
|
|
|
2,347
|
|
|
|
|
|
|
|
|
|
|
|
2,347
|
|
|
|
AMORTIZATION
OF GAIN ON TERMINATION OF DERIVATIVE
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(191
|
)
|
|
|
(191
|
)
|
|
|
ISSUANCE
OF COMMON STOCK TO EMPLOYEE STOCK PURCHASE PLAN
|
|
|
|
|
|
143
|
|
|
|
(18,277
|
)
|
146
|
|
|
|
|
|
289
|
|
|
|
ISSUANCE
OF COMMON STOCK UNDER 2000 DIRECTORS STOCK PLAN
|
|
12,784
|
|
|
|
337
|
|
|
|
|
|
|
|
|
|
|
|
337
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
BALANCES
AT SEPTEMBER 30, 2009
|
|
16,412,802
|
|
$
|
16
|
|
$
|
167,534
|
|
$
|
92,500
|
|
1,487,886
|
|
$
|
(11,888
|
)
|
$
|
1,485
|
|
$
|
1,831
|
|
$
|
251,478
|
|
|
|
The accompanying notes are an integral part of these consolidated
financial statements.
7
Table of
Contents
CORNELL COMPANIES, INC.
CONSOLIDATED STATEMENT OF
STOCKHOLDERS EQUITY
AND COMPREHENSIVE INCOME
FOR THE NINE MONTHS ENDED SEPTEMBER 30, 2008
(Unaudited)
(in thousands, except share data)
|
|
Common Stock
|
|
Additional
|
|
|
|
|
|
|
|
Accumulated
Other
|
|
Non-
|
|
Total
|
|
|
|
|
|
|
|
Par
|
|
Paid-In
|
|
Retained
|
|
Treasury Stock
|
|
Comprehensive
|
|
Controlling
|
|
Stockholders
|
|
Comprehensive
|
|
|
|
Shares
|
|
Value
|
|
Capital
|
|
Earnings
|
|
Shares
|
|
Cost
|
|
Income
|
|
Interest
|
|
Equity
|
|
Income
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
BALANCES AT DECEMBER 31, 2007
|
|
16,068,677
|
|
$
|
16
|
|
$
|
160,319
|
|
$
|
51,127
|
|
1,515,046
|
|
$
|
(12,105
|
)
|
$
|
1,092
|
|
$
|
|
|
$
|
200,449
|
|
$
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
NET INCOME
|
|
|
|
|
|
|
|
14,896
|
|
|
|
|
|
|
|
87
|
|
14,809
|
|
14,809
|
|
UNREALIZED GAIN ON DERIVATIVE INSTRUMENTS, NET OF
TAXES OF $406
|
|
|
|
|
|
|
|
|
|
|
|
|
|
584
|
|
|
|
584
|
|
584
|
|
COMPREHENSIVE INCOME
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
$
|
15,393
|
|
EXERCISE OF STOCK OPTIONS
|
|
36,390
|
|
|
|
444
|
|
|
|
|
|
|
|
|
|
|
|
444
|
|
|
|
INCOME TAX BENEFIT/(EXPENSE) FROM STOCK OPTION
EXERCISES
|
|
|
|
|
|
140
|
|
|
|
|
|
|
|
|
|
|
|
140
|
|
|
|
DEFERRED AND OTHER STOCK COMPENSATION
|
|
144,637
|
|
|
|
2,220
|
|
|
|
|
|
|
|
|
|
|
|
2,220
|
|
|
|
ISSUANCE OF COMMON STOCK TO EMPLOYEE
STOCK PURCHASE PLAN
|
|
|
|
|
|
82
|
|
|
|
(8,883
|
)
|
71
|
|
|
|
|
|
153
|
|
|
|
ISSUANCE OF COMMON STOCK UNDER 2000 DIRECTORS
STOCK PLAN
|
|
10,761
|
|
|
|
380
|
|
|
|
|
|
|
|
|
|
|
|
380
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
BALANCES AT SEPTEMBER 30, 2008
|
|
16,260,465
|
|
$
|
16
|
|
$
|
163,585
|
|
$
|
66,023
|
|
1,506,163
|
|
$
|
(12,034
|
)
|
$
|
1,676
|
|
$
|
87
|
|
$
|
219,179
|
|
|
|
The accompanying notes are an integral part of these consolidated
financial statements.
8
Table of Contents
CORNELL
COMPANIES, INC.
CONSOLIDATED
STATEMENTS OF CASH FLOWS
(Unaudited)
(in thousands)
|
|
Nine Months Ended
|
|
|
|
September 30,
|
|
|
|
2009
|
|
2008
|
|
CASH FLOWS
FROM OPERATING ACTIVITIES:
|
|
|
|
|
|
Net income
|
|
$
|
20,568
|
|
$
|
14,896
|
|
Adjustments
to reconcile net income to net cash provided by operating activities -
|
|
|
|
|
|
Depreciation
|
|
13,147
|
|
11,386
|
|
Amortization
of intangibles and other assets
|
|
946
|
|
1,593
|
|
Impairment of
long-lived assets
|
|
|
|
250
|
|
Amortization
of deferred financing costs
|
|
950
|
|
952
|
|
Amortization
of Senior Notes discount
|
|
138
|
|
138
|
|
Amortization
of gain on termination of derivative
|
|
(191
|
)
|
|
|
Stock-based
compensation
|
|
2,618
|
|
2,519
|
|
Provision for
bad debts
|
|
702
|
|
1,638
|
|
(Gain)loss on
sale/disposals of property and equipment
|
|
(1,046
|
)
|
82
|
|
Deferred
income taxes
|
|
(119
|
)
|
341
|
|
Change in
assets and liabilities:
|
|
|
|
|
|
Accounts
receivable
|
|
(11,021
|
)
|
(12,569
|
)
|
Other restricted
assets
|
|
223
|
|
(806
|
)
|
Other assets
|
|
(1,558
|
)
|
(4,747
|
)
|
Accounts
payable and accrued liabilities
|
|
(13,969
|
)
|
5,531
|
|
Other
long-term liabilities
|
|
285
|
|
(238
|
)
|
Net cash
provided by operating activities
|
|
11,673
|
|
20,966
|
|
|
|
|
|
|
|
CASH FLOWS
FROM INVESTING ACTIVITIES:
|
|
|
|
|
|
Capital
expenditures
|
|
(14,456
|
)
|
(59,282
|
)
|
Sales of
investment securities
|
|
|
|
250
|
|
Proceeds from
insurance recoveries and proceeds from sale of property and equipment
|
|
2,608
|
|
791
|
|
Withdrawals
from restricted debt payment account, net
|
|
4,623
|
|
3,702
|
|
Net cash used
in investing activities
|
|
(7,225
|
)
|
(54,539
|
)
|
|
|
|
|
|
|
CASH FLOWS
FROM FINANCING ACTIVITIES:
|
|
|
|
|
|
Proceeds from
line of credit
|
|
2,000
|
|
43,000
|
|
Payments of
line of credit
|
|
(4,000
|
)
|
|
|
Payment of
MCF bonds
|
|
(12,400
|
)
|
(11,400
|
)
|
Tax benefit
of stock option exercises
|
|
|
|
140
|
|
Payments of
capital lease obligations
|
|
(10
|
)
|
(8
|
)
|
Proceeds from
exercise of stock options and employee stock purchase plan contributions
|
|
321
|
|
597
|
|
Net cash
provided by (used in) financing activities
|
|
(14,089
|
)
|
32,329
|
|
|
|
|
|
|
|
NET DECREASE IN
CASH AND CASH EQUIVALENTS
|
|
(9,641
|
)
|
(1,244
|
)
|
CASH AND CASH
EQUIVALENTS AT BEGINNING OF PERIOD
|
|
14,613
|
|
3,028
|
|
CASH AND CASH
EQUIVALENTS AT END OF PERIOD
|
|
$
|
4,972
|
|
$
|
1,784
|
|
|
|
|
|
|
|
OTHER
NON-CASH INVESTING AND FINANCING ACTIVITIES:
|
|
|
|
|
|
Other
comprehensive income, net of tax
|
|
$
|
|
|
$
|
584
|
|
Common stock
issued for board of directors fees
|
|
337
|
|
380
|
|
Purchases and
additions to property and equipment included in accounts payable and accrued
liabilities
|
|
1,844
|
|
10,322
|
|
Tax
benefit/(expense) of stock option exercises
|
|
(71
|
)
|
|
|
The accompanying notes are an integral part of these consolidated
financial statements.
9
Table of
Contents
CORNELL COMPANIES, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(Unaudited)
1.
Basis of
Presentation
The
accompanying unaudited consolidated financial statements have been prepared by
Cornell Companies, Inc. (collectively with its subsidiaries and
consolidated special purpose entities, unless the context requires otherwise,
the Company, we, us or our) pursuant to the rules and regulations
of the Securities and Exchange Commission.
Certain information and footnote disclosures normally included in
financial statements prepared in accordance with generally accepted accounting
principles in the United States (GAAP) have been condensed or omitted
pursuant to such rules and regulations.
The year-end consolidated balance sheet was derived from audited financial
statements but does not include all disclosures required by GAAP. In the
opinion of management, adjustments and disclosures necessary for a fair
presentation of these financial statements have been included. Estimates were used in the preparation of these
financial statements. Actual results
could differ from those estimates. These
financial statements should be read in conjunction with the financial
statements and notes thereto included in the Companys 2008 Annual Report on Form 10-K
as filed with the Securities and Exchange Commission.
2.
Accounting
Policies
See
a description of our accounting policies in the Notes to Consolidated Financial
Statements included in our 2008 Annual Report on Form 10-K.
3.
Stock-Based
Compensation
We have an employee stock purchase plan
(ESPP)
under which
employees can make contributions to purchase our common stock. Participation in
the plan is elected annually by employees. The plan year typically begins each January 1st
(the Beginning Date) and ends on December 31st (the Ending Date).
Purchases of common stock are made at the end of the year using the lower of
the fair market value on either the Beginning Date or Ending Date, less a 15%
discount. O
ur
employee-stock purchase plan is considered to be a compensatory ESPP, and
therefore, we recognize compensation expense over the requisite service period
for grants made under the ESPP. Compensation expense of approximately $0.08
million was recognized in each of the nine months ended September 30, 2009 and
2008.
Our stock incentive plans
provide for the granting of stock options (both incentive stock options and
nonqualified stock options), stock appreciation rights, restricted stock shares
and other stock-based awards to officers, directors and employees of the Company.
Grants of stock options made to date under these plans vest over periods up to
seven years after the date of grant and expire no later than 10 years after
grant.
At September 30,
2008, 202,000 shares of restricted stock were outstanding subject to
performance-based vesting criteria (32,500 of these restricted shares were
considered market-based restricted stock). There were also 52,700 stock options
outstanding subject to performance-based vesting criteria. We recognized $0.04
million and $0.6 million of expense associated with these shares of restricted
stock and stock options during the three and nine months ended September 30,
2008, respectively.
At September 30,
2009, 317,227 shares of restricted stock were outstanding subject to
performance-based vesting criteria (32,500 of these restricted shares were
considered market-based restricted stock). There were also 6,260 stock options
outstanding subject to performance-based vesting criteria. We recognized $0.4
million and $0.9 million of expense associated with these shares of restricted
stock and stock options during the three and nine months ended September 30,
2009, respectively.
The amounts above relate to the impact of recognizing
compensation expense related to stock options and restricted stock.
Compensation expense related to stock options (6,260 shares) and restricted
stock (284,727 shares) that vest based upon performance conditions is not
recorded for such performance-based awards until it has been deemed probable
that the related performance targets allowing the vesting of these options and
restricted stock will be met. We are required to periodically re-assess the
probability that these performance-based awards will vest and record expense at
that point in time. During the nine months ended September 30, 2009, it
was deemed probable that certain performance targets pertaining to certain
restricted stock and stock options would be achieved by their vesting date.
Accordingly, compensation expense of approximately $0.8 million was recognized
in the nine months ended September 30, 2009 related to these stock-based
awards.
We recognize
expense for our stock-based compensation over the vesting period, or in the
case of performance-based awards, during the service period for which the
performance target becomes probable of being met, which represents the period
in which an employee is required to provide service in exchange for the award.
We recognize compensation expense for stock-based awards immediately if the
award has immediate vesting.
10
Table of Contents
Assumptions
The fair values for the
significant stock-based awards granted during the nine months ended September 30,
2009 and 2008 were estimated at the date of grant using a Black-Scholes option
pricing model with the following weighted-average assumptions:
|
|
Nine Months Ended
September 30,
|
|
|
|
2009
|
|
2008
|
|
|
|
|
|
|
|
Risk-free rate of return
|
|
1.90
|
%
|
3.35
|
%
|
Expected life of award
|
|
6.0 years
|
|
5.7 years
|
|
Expected dividend yield of stock
|
|
0
|
%
|
0
|
%
|
Expected volatility of stock
|
|
50.49
|
%
|
38.74
|
%
|
Weighted-average fair value
|
|
$
|
8.89
|
|
$
|
9.46
|
|
|
|
|
|
|
|
|
|
The
expected volatility of stock assumption was derived by referring to changes in
the Companys historical common stock prices
over a timeframe similar to that of the expected life
of the award. We do not believe that future stock volatility will significantly
differ from historical stock volatility. Estimated forfeiture rates are derived
from historical forfeiture patterns. We believe the historical experience
method is the best estimate of forfeitures currently available.
Generally we considered
the simplified method for plain vanilla options to estimate the expected
term of options granted during 2009 and 2008 (where appropriate). For those grants during these periods wherein
we had sufficient historical or impartial data to better estimate the expected
term, we have done so.
Stock-based options award
activity during the nine months ended September 30, 2009 was as follows
(aggregate intrinsic value in millions):
|
|
Number
of
Shares
|
|
Weighted
Average
Exercise
Price
|
|
Weighted
Average
Remaining
Contractual
Term
|
|
Aggregate
Intrinsic
Value
|
|
|
|
|
|
|
|
|
|
|
|
Outstanding at December 31, 2008
|
|
485,699
|
|
$
|
15.03
|
|
6.5
|
|
$
|
7.3
|
|
Granted
|
|
40,000
|
|
17.98
|
|
|
|
|
|
Exercised
|
|
(2,550
|
)
|
12.71
|
|
|
|
|
|
Canceled
|
|
(8,467
|
)
|
14.11
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Outstanding at September 30, 2009
|
|
514,682
|
|
$
|
15.29
|
|
6.1
|
|
$
|
7.9
|
|
|
|
|
|
|
|
|
|
|
|
Vested and expected to vest at September 30,
2009
|
|
513,090
|
|
$
|
15.27
|
|
6.1
|
|
$
|
7.7
|
|
|
|
|
|
|
|
|
|
|
|
Exercisable at September 30, 2009
|
|
483,912
|
|
$
|
15.02
|
|
6.0
|
|
$
|
7.3
|
|
The
total intrinsic value of stock options exercised during the nine months ended September 30,
2009 and 2008 was $0.01 million and $0.5 million, respectively. Net cash
proceeds from the exercise of stock options were approximately $0.03 and $0.6
million for the nine months ended September 30, 2009 and 2008,
respectively.
We
recognized $0.1 million and $0.4 million of expense associated with stock
options during the three and nine months ended September 30, 2009. As of September 30,
2009, approximately $0.1 million of estimated expense with respect to
time-based nonvested stock-based options awards has yet to be recognized and
will be amortized into expense over the employees remaining requisite service
period of approximately 6.6 months.
11
Table of
Contents
The
following table summarizes information with respect to stock options
outstanding and exercisable at September 30, 2009.
Range of Exercise Prices
|
|
Number
Outstanding
|
|
Weighted
Average
Remaining
Life (Years)
|
|
Weighted
Average
Exercise
Price
|
|
Number
Exercisable
|
|
Weighted
Average
Exercise
Price
|
|
|
|
|
|
|
|
|
|
|
|
|
|
$3.75 to $10.00
|
|
18,865
|
|
2.0
|
|
$
|
5.72
|
|
18,865
|
|
$
|
5.72
|
|
$10.01 to $13.50
|
|
150,917
|
|
4.9
|
|
12.83
|
|
148,917
|
|
12.82
|
|
$13.51 to $14.50
|
|
193,200
|
|
5.9
|
|
13.95
|
|
189,240
|
|
13.94
|
|
$14.51 to $25.00
|
|
151,700
|
|
8.1
|
|
20.62
|
|
126,890
|
|
20.58
|
|
|
|
514,682
|
|
6.1
|
|
$
|
15.29
|
|
483,912
|
|
$
|
15.02
|
|
Stock-based
award activity for nonvested awards during the nine months ended September 30,
2009 is as follows:
|
|
Number
of
Shares
|
|
Weighted Average
Grant Date
Fair Value
|
|
Nonvested at December 31, 2008
|
|
95,118
|
|
$
|
16.09
|
|
Granted
|
|
40,000
|
|
17.98
|
|
Vested
|
|
(104,348
|
)
|
15.81
|
|
Canceled
|
|
|
|
|
|
|
|
|
|
|
|
Nonvested at September 30, 2009
|
|
30,770
|
|
$
|
19.51
|
|
Restricted Stock
We have previously issued
restricted stock under certain employment agreements and stock incentive plans
which vests either over a specific period of time, generally three to five
years, or which will vest subject to certain market or performance
conditions. During the nine months ended
September 30, 2009, we issued restricted stock as part of our normal
equity awards under our 2006 Incentive Plan.
These shares of restricted common stock are subject to restrictions on
transfer and certain conditions to vesting.
Restricted stock activity
for the nine months ended September 30, 2009 was as follows:
|
|
Number
of
Shares
|
|
Weighted Average
Grant Date
Fair Value
|
|
Nonvested at December 31, 2008
|
|
403,124
|
|
$
|
22.44
|
|
Granted
|
|
176,800
|
|
16.81
|
|
Vested
|
|
(55,693
|
)
|
21.95
|
|
Canceled
|
|
(657
|
)
|
22.27
|
|
|
|
|
|
|
|
Nonvested at September 30, 2009
|
|
523,574
|
|
$
|
20.59
|
|
We recognized $0.4
million and $1.2 million of expense associated with nonvested time-based
restricted stock awards during the three and nine months ended September 30,
2009, respectively. As of September 30,
2009, approximately $2.0 million of estimated expense with respect to nonvested
time-based restricted stock awards had yet to be recognized and will be
amortized over a weighted average period of 2.0 years.
Approximately
$5.0 million of estimated expense with respect to nonvested performance-based
restricted stock option awards had yet to be recognized as of September 30,
2009.
12
Table of
Contents
4.
Intangible
Assets
Intangible
assets at September 30, 2009 and December 31, 2008 consisted of the
following (in thousands):
|
|
September 30,
2009
|
|
December 31,
2008
|
|
|
|
|
|
|
|
Non-compete agreements
|
|
$
|
8,200
|
|
$
|
8,200
|
|
Accumulated amortization non-compete agreements
|
|
(8,142
|
)
|
(7,595
|
)
|
Acquired contract value
|
|
6,240
|
|
6,240
|
|
Accumulated amortization contract value
|
|
(4,924
|
)
|
(4,525
|
)
|
Identified intangibles, net
|
|
1,374
|
|
2,320
|
|
Goodwill
|
|
13,308
|
|
13,308
|
|
Total intangibles
|
|
$
|
14,682
|
|
$
|
15,628
|
|
There were no changes in the carrying
amount of goodwill in the nine months ended September 30, 2009.
Amortization
expense for our non-compete agreements was approximately $0.2 million for each
of the three months ended September 30, 2009 and 2008 and approximately
$0.5 million and $0.6 million for the nine months ended September 30, 2009
and 2008, respectively.
Amortization
expense for our acquired contract value was approximately $0.1 million and $0.3
million for the three months ended September 30, 2009 and 2008,
respectively, and approximately $0.4 million and $0.8 million for the nine
months ended September 30, 2009 and 2008, respectively.
5.
Fair Value Measurements
On January 1, 2008
we adopted a newly issued accounting standard for fair value measurements of
financial assets and liabilities which did not have a material financial impact
on our consolidated results of operations or financial condition. On January 1, 2009, we adopted the
provisions of this new accounting pronouncement for applying fair value to
non-financial assets, liabilities and transactions on a non-recurring
basis. Adoption of the provisions for
fair value measurements on a non-recurring basis did not have a material effect
on our financial position, results of operations or cash flows.
As defined in this
accounting standard, fair value is the price that would be received to sell an
asset or paid to transfer a liability in an orderly transaction between market
participants at the measurement date (exit price). Additionally, this pronouncement requires
disclosure that establishes a framework for measuring fair value and expands
disclosures about fair value measurements.
Additionally, it requires that fair value measurements be classified and
disclosed in one of the following categories:
Level 1
|
|
Unadjusted quoted
prices in active markets that are accessible at the measurement date for
identical, unrestricted assets or liabilities;
|
Level 2
|
|
Quoted prices in
markets that are not active, or inputs that are observable, either directly
or indirectly, for substantially the full term of the asset or liability; and
|
Level 3
|
|
Prices or valuation
techniques that require inputs that are both significant to the fair value
measurement and unobservable (i.e., supported by little or no market
activity).
|
As required, financial
assets and liabilities are classified based on the lowest level of input that
is significant for the fair value measurement.
The following table summarizes the valuation of our financial assets and
liabilities by pricing levels as of September 30, 2009:
|
|
Fair Value as of September 30, 2009 (in thousands)
|
|
|
|
Level 1
|
|
Level 2
|
|
Level 3
|
|
Total
|
|
Assets:
|
|
|
|
|
|
|
|
|
|
Corporate Bonds
|
|
$
|
|
|
$
|
3,907
|
|
$
|
|
|
$
|
3,907
|
|
Money Market Funds
|
|
|
|
42,778
|
|
|
|
42,778
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
The corporate bonds and
money market funds are carried in debt service fund and other restricted assets
and the debt service reserve fund in the accompanying balance sheet. The fair
value measurements for corporate bonds and money-market funds are based upon
the quoted price for similar assets in markets that are not active, multiplied
by the number of shares owned, exclusive of any
13
Table of
Contents
transaction costs and without
any adjustments to reflect discounts that may be applied to selling a large
block of the securities at one time. The Company does not believe that the
changes in fair value of these assets will materially differ from the amounts
that could be realized upon settlement or that the changes in fair value will
have a material effect on the Companys results of operations, liquidity and
capital resources.
This accounting standard requires a reconciliation
of the beginning and ending balances for fair value measurements using Level 3
inputs. We had no such assets or
liabilities which were measured at fair value on a recurring basis using
significant unobservable inputs (level 3) during the three and nine months ended
September 30, 2009.
6.
Recent Accounting Standards
In December 2007,
the FASB revised the authoritative guidance for business combinations which
establishes principles and requirements for how the acquirer in a business
combination (1) recognizes and measures in its financial statements the identifiable
assets acquired, the liabilities assumed and any noncontrolling interest in the
acquiree, (2) recognizes and measures the goodwill acquired in the
business combination or a gain from a bargain purchase and (3) determines
what information to disclose to enable users of the financial statements to
evaluate the nature and financial effects of the business combination. This
guidance applies prospectively to business combinations for which the
acquisition date is on or after the beginning of the first annual reporting
period beginning on or after December 15, 2008. Our adoption of this revised guidance on January 1,
2009 did not have any impact on our consolidated results of operations or
financial condition as we did not have any business combination activity in the
nine months ended September 30, 2009.
Additionally, the FASB
amended the factors that should be considered in developing renewal or
extension assumptions used to determine the useful life of a recognized
intangible asset to improve the consistency between the useful life of a
recognized intangible asset and the period of expected cash flows used to
measure the fair value of the asset under the current guidance concerning
business combinations and other U.S. generally accepted accounting principles. This new guidance is effective for financial
statements issued for fiscal years beginning after December 15, 2008, and
interim periods within those fiscal years.
Our adoption of the new guidance on January 1, 2009 did not have a
significant impact on our consolidated financial position, results of
operations or cash flows.
In December 2007,
the FASB issued authoritative guidance which established new accounting and
reporting standards for the noncontrolling interest in a subsidiary and for the
deconsolidation of a subsidiary. The new
guidance requires the recognition of a noncontrolling interest (minority
interest) as equity in the consolidated financial statements and separate from
the parents equity. The amount of net
income attributable to the noncontrolling interest will be included in
consolidated net income on the face of the income statement. This guidance clarifies that changes in a
parents ownership interest in a subsidiary that do not result in
deconsolidation are equity transactions if the parent retains its controlling
financial interest. In addition, it
requires that a parent recognize a gain or loss in net income when a subsidiary
is deconsolidated. Such gain or loss
will be measured using the fair value of the noncontrolling equity investment
on the deconsolidation date.
Additionally, there are expanded disclosure requirements regarding the
interests of the parent and its noncontrolling interest. This guidance is effective for fiscal years,
and interim periods within those fiscal years, beginning on or after December 15,
2008. We adopted the new guidance on January 1,
2009 and applied the provisions to our 2009 financial statements and
retroactively to all prior periods presented.
In March 2008, the
FASB issued new authoritative guidance to improve financial reporting about
derivatives and hedging activities by requiring enhanced qualitative and
quantitative disclosures regarding derivative instruments, gains and losses on
such instruments and their effects on an entitys financial position, financial
performance and cash flows. Our adoption
of this new guidance on January 1, 2009 did not have a significant impact
on our consolidated financial position, results of operations or cash flows.
In May 2008, the
FASB issue new authoritative guidance which establishes general standards of
accounting and disclosure of events that occur after the balance sheet date but
before the financial statements are issued.
This guidance sets forth (1) the period after the balance sheet
date during which management should evaluate events or transactions that may
occur for potential recognition or disclosure in the financial statements, (2) the
circumstances under which an entity should recognize events or transactions
occurring after the balance sheet date and (3) the disclosures an entity
should make about such events or transactions.
Management has performed a review of our subsequent events and
transactions through November 6, 2009, which is the date the financial
statements are issued.
In June 2009, the
FASB issued the FASB Accounting Standards Codification (Codification). The Codification became the single source for
all authoritative GAAP recognized by the FASB to be applied for financial
statements issued for periods ending after September 15, 2009. The Codification does not change GAAP and did
not have an affect on our financial position, results of operations or cash
flows.
14
Table of
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7.
Future Accounting Requirements
In June 2009, the
FASB issued an amendment to the accounting and disclosure requirements for
transfers of financial assets. This
amendment applies to the financial reporting of a transfer of financial assets;
the effects of a transfer on an entitys financial position, financial
performance and cash flows; and a transferors continuing involvement, if any,
in transferred financial assets. It
eliminates (1) the exceptions for qualifying special-purpose entities from
the consolidation guidance and (2) the exception that permitted sale
accounting for certain mortgage securitizations when a transferor has not
surrendered control over the transferred financial assets. The provisions of this amendment must be
applied as of the beginning of each reporting entitys first annual reporting
period that begins after November 15, 2009, for interim periods within
that first annual reporting period and for interim and annual reporting periods
thereafter. Earlier application is
prohibited. The requirements in the
amendment must be applied to transfers occurring on or after the effective
date. We are currently evaluating the impact, if any, that such requirements
may have on our financial statements once adopted.
In June 2009, the
FASB also issued an amendment to the accounting and disclosure requirements for
the consolidation of variable interest entities (VIEs). This amendment
requires an enterprise to perform a qualitative analysis when determining
whether or not it must consolidate a VIE.
The amendment also requires an enterprise to continuously reassess
whether it must consolidate a VIE.
Additionally, the amendment requires enhanced disclosures about an
enterprises involvement with VIEs and any significant change in risk exposure
due to that involvement, as well as how its involvement with VIEs impacts the
enterprises financial statements.
Finally, an enterprise will be required to disclose significant
judgments and assumptions used to determine whether or not to consolidate a
VIE. This amendment is effective for
financial statements issued for fiscal years beginning after November 15,
2009. Earlier application is prohibited.
We are currently evaluating the impact, if any, that this amendment may have on
our financial statements once adopted.
8.
Credit Facilities
At September 30,
2009 and December 31, 2008, our long-term debt consisted of the following
(in thousands):
|
|
September 30,
2009
|
|
December 31,
2008
|
|
|
|
|
|
|
|
Debt of Cornell Companies, Inc.:
|
|
|
|
|
|
Senior Notes, unsecured, due July 2012 with
an interest rate of 10.75%, net of discount
|
|
$
|
111,494
|
|
$
|
111,356
|
|
Revolving Line of Credit due December 2011
with an interest rate of LIBOR plus 1.50% to 2.25% or prime plus 0.00% to
0.75% (the Amended Credit Facility)
|
|
73,000
|
|
75,000
|
|
Capital lease obligations
|
|
17
|
|
26
|
|
Subtotal
|
|
184,511
|
|
186,382
|
|
|
|
|
|
|
|
Debt of Special Purpose Entity:
|
|
|
|
|
|
8.47% Bonds due 2016
|
|
121,700
|
|
134,100
|
|
|
|
|
|
|
|
Total consolidated debt
|
|
306,211
|
|
320,482
|
|
|
|
|
|
|
|
Less: current maturities
|
|
(13,413
|
)
|
(12,412
|
)
|
|
|
|
|
|
|
Consolidated long-term debt
|
|
$
|
292,798
|
|
$
|
308,070
|
|
Long-Term Credit Facilities.
Our Amended
Credit Facility provides for borrowings
up to $100.0 million (including letters of credit) and matures in December 2011.
At our election, outstanding borrowings bear interest at either the LIBOR rate
plus a margin ranging from 1.50% to 2.25% or a rate which ranges from 0.00% to
0.75% above the applicable prime rate.
The applicable margins are subject to adjustments based on our total
leverage ratio.
The
available commitment under our Amended Credit Facility was approximately $12.1
million at September 30, 2009. We
had outstanding borrowings under our Amended Credit Facility of $73.0 million
and we had outstanding letters of credit of approximately $14.9 million at September 30,
2009. Subject to certain requirements,
we have the right to increase the commitments under our Amended Credit Facility
up to $150.0 million, although the indenture for our Senior Notes limits our
ability, subject to certain conditions, to expand the Amended Credit Facility
beyond $100.0 million. We can provide no
assurance that all of the banks that have made commitments to us under our
Amended Credit Facility would be willing to participate in an expansion to the
Amended Credit Facility should we desire to do so. The Amended Credit
15
Table of
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Facility
is
collateralized by substantially all of our assets, including the assets and
stock of all of our subsidiaries. The Amended Credit Facility is not secured by
the assets of Municipal Corrections Finance, LP, a special purpose entity (MCF).
Our Amended Credit
Facility contains financial and other restrictive covenants that limit our
ability to engage in certain activities.
Our ability to borrow under the Amended Credit Facility is subject to
compliance with certain financial covenants, including bank leverage, total
leverage and fixed charge coverage ratios. At September 30, 2009, we were
in compliance with all such covenants. Our Amended Credit Facility includes
other restrictions that, among other things, limit our ability to incur
indebtedness; grant liens; engage in mergers, consolidations and liquidations;
make investments, restricted payment and asset dispositions; enter into
transactions with affiliates; and engage in sale/leaseback transactions.
MCF is obligated for the outstanding balance of its 8.47% Taxable
Revenue Bonds, Series 2001. The
bonds bear interest at a rate of 8.47% per annum and are payable in semi-annual
installments of interest and annual installments of principal. All unpaid principal and accrued interest on
the bonds is due on the earlier of August 1, 2016 (maturity) or as noted
under the bond documents.
The bonds are limited, nonrecourse obligations of MCF and secured
by the property and equipment, bond reserves, assignment of subleases and
substantially all assets related to the facilities included in the 2001 Sale
and Leaseback Transaction (in which we sold eleven facilities to MCF). The bonds are not guaranteed by Cornell.
In June 2004, we issued $112.0 million in principal of
10.75% Senior Notes the (Senior Notes) due July 1, 2012. The Senior Notes are unsecured senior
indebtedness and are guaranteed by all of our existing and future subsidiaries
(collectively, the Guarantors). The
Senior Notes are not guaranteed by MCF (the Non-Guarantor). Interest on the Senior Notes is payable
semi-annually on January 1 and July 1 of each year, commencing January 1,
2005. On or after July 1, 2008, we
may redeem all or a portion of the Senior Notes at the redemption prices
(expressed as a percentage of the principal amount) listed below, plus accrued
and unpaid interest, if any, on the Senior Notes redeemed, to the applicable
date of redemption, if redeemed during the 12-month period commencing on July 1
of each of the years indicated below:
Year
|
|
Percentages
|
|
|
|
|
|
2008
|
|
105.375
|
%
|
2009
|
|
102.688
|
%
|
2010 and
thereafter
|
|
100.000
|
%
|
Upon the occurrence of
specified change of control events, unless we have exercised our option to
redeem all the Senior Notes as described above, each holder will have the right
to require us to repurchase all or a portion of such holders Senior Notes at a
purchase price in cash equal to 101% of the aggregate principal amount of the
notes repurchased plus accrued and unpaid interest, if any, on the Senior Notes
repurchased, to the applicable date of purchase. The Senior Notes were issued under an
indenture which limits our ability and the ability of our Guarantors to, among
other things, incur additional indebtedness, pay dividends or make other
distributions, make other restricted payments and investments, create liens,
incur restrictions on the ability of the Guarantors to pay dividends or other
payments to us, enter into transactions with affiliates, and engage in mergers,
consolidations and certain sales of assets.
9.
Income Taxes
At December 31,
2008, the total amount of our unrecognized tax benefits was approximately $2.5
million. There were no material changes
to the total amount of our unrecognized tax benefits in the three and nine
months ended September 30, 2009.
Estimated interest and penalties
related to the underpayment of income taxes are classified as a component of
income tax expense in the accompanying Consolidated Statements of Income and
Comprehensive Income. There were no
material changes to our accrued interest and penalties in the three and nine
months ended September 30, 2009.
Accrued interest and penalties were approximately $0.2 million at September 30,
2009 and December 31, 2008.
We are subject to income
tax in the United States and many of the individual states we operate in. We currently have significant operations in
Texas, California, Oklahoma, Georgia, Illinois and Pennsylvania. State income tax returns are generally
subject to examination for a period of three to five years after filing. The state impact of any changes made to the
federal return remains subject to examination by various states for a period up
to one year after formal notification to the state. We are open to United States Federal Income
Tax examinations for the tax years December 31, 2005 through December 31, 2008. The audit of our 2006 federal income tax
return by the Internal Revenue Service was recently concluded without material
findings.
16
Table of
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We have state operating
loss carryforwards of approximately $34.4 million on which we have provided a
valuation allowance of $3.0 million.
These net operating losses expire beginning in 2008 through 2032.
We do not anticipate a
significant change in the balance of our unrecognized tax benefits within the
next 12 months.
10.
Earnings Per Share
Basic earnings per share (EPS) are computed by dividing net
income by the weighted average number of shares of common stock outstanding
during the period. Diluted EPS is
computed by dividing net income by the weighted average number of shares of
common stock outstanding after giving effect to all potentially dilutive common
shares outstanding during the period.
Potentially dilutive common shares include the dilutive effect of
outstanding common stock options and restricted common shares granted under our
various option and other incentive plans.
As of January 1, 2009, instruments with
nonforfeitable
dividend rights
granted
in share-based payment transactions are participating securities prior to
vesting and, therefore, need to be included in the earnings allocation in
computing EPS under the two-class method.
For our fiscal
year beginning January 1, 2009, since our restricted common stock grants
(including both vested and those unvested due to either time or performance
requirements) convey nonforfeitable rights to dividends while outstanding, they
are included in both basic and fully diluted ESP calculations.
All prior-period EPS data has been
adjusted retrospectively to conform to the calculation of EPS.
For the three months ended September 30, 2009, there were 101,700
shares ($22.16 average price) of stock options that were not included in the
computation of diluted EPS because to do so would have been anti-dilutive. For
the three months ended September 30, 2008, there were no anti-dilutive
shares. For the nine months ended September 30, 2009 and 2008, there were
141,700 shares ($20.98 average price) and 19,200 shares ($24.56 average price),
respectively, of stock options that were not included in the computation of
diluted EPS because to do so would have been anti-dilutive.
The following table summarizes the calculation of net earnings
and weighted average common shares and common equivalent shares outstanding for
purposes of the computation of earnings per share (in thousands, except per
share data):
|
|
Three Months Ended
September 30,
|
|
Nine Months Ended
September 30,
|
|
|
|
2009
|
|
2008
|
|
2009
|
|
2008
|
|
|
|
|
|
|
|
|
|
|
|
Income
available to stockholders
|
|
$
|
6,693
|
|
$
|
4,828
|
|
$
|
19,182
|
|
$
|
14,809
|
|
|
|
|
|
|
|
|
|
|
|
Weighted
average basic common shares outstanding
|
|
14,886
|
|
14,734
|
|
14,880
|
|
14,715
|
|
Weighted
average common share equivalents outstanding
|
|
109
|
|
181
|
|
88
|
|
152
|
|
|
|
|
|
|
|
|
|
|
|
Weighted
average diluted common shares and common share equivalents outstanding
|
|
14,995
|
|
14,915
|
|
14,968
|
|
14,867
|
|
|
|
|
|
|
|
|
|
|
|
Basic income
per share
|
|
$
|
.45
|
|
$
|
.33
|
|
$
|
1.29
|
|
$
|
1.01
|
|
|
|
|
|
|
|
|
|
|
|
Diluted
income per share
|
|
$
|
.45
|
|
$
|
.32
|
|
$
|
1.28
|
|
$
|
1.00
|
|
11.
Commitments and Contingencies
Financial Guarantees
During the normal course
of business, we enter into contracts that contain a variety of representations
and warranties and provide general indemnifications. Our maximum exposure under
these arrangements is unknown as this would involve future claims that may be
made against us that have not yet occurred. However, based on experience, we
believe the risk of loss to be remote.
Legal Proceedings
We are party to various
legal proceedings, including those noted below. While management presently
believes that the ultimate outcome of these proceedings will not have a
material adverse effect on our financial position, overall trends in results of
operations or cash flows, litigation is subject to inherent uncertainties, and
unfavorable rulings could occur. An unfavorable ruling could include
17
Table of Contents
monetary damages or
equitable relief and could have a material adverse impact on the net income of
the period in which the ruling occurs or in future periods.
Valencia County Detention Center
In April 2007,
a lawsuit was filed against the Company in the Federal District Court in
Albuquerque, New Mexico, by Joe Torres and Eufrasio Armijo, who each alleged
that he was strip searched at the Valencia County Detention Center (VCDC) in
New Mexico in violation of his federal rights under the Fourth, Fourteenth and
Eighth amendments to the U.S. Constitution. The claimants also alleged
violation of their rights under state law and sought to bring the case as a
class action on behalf of themselves and all detainees at VCDC during the
applicable statutes of limitation. The plaintiffs sought damages and
declaratory and injunctive relief. Valencia County is also a named
defendant in the case and operated the VCDC for a significantly greater portion
of the period covered by the lawsuit.
In December 2008,
the parties agreed to a proposed stipulation of settlement and, in July 2009,
the Court granted final approval of the settlement. The settlement amount under the terms of the
agreement is $3.3 million. Cornells
portion of the stipulated settlement, based on the number of inmates housed at
VCDC during the time Cornell operated the facility in comparison to the number
of inmates housed at the facility during the time Valencia County operated the
facility, is $1.2 million and was funded principally through our general
liability and professional liability coverage.
The claims administration process is underway and we expect it to be
completed in the fourth quarter of 2009.
In the year ended December 31,
2007, we previously provided insurance reserves for this matter (as part of our
regular review of reported and unreported claims) totaling approximately $0.5
million. During the fourth quarter of 2008, we recorded an additional
settlement charge of approximately $0.7 million and the related reimbursement
from our general liability and professional liability insurance. The charge and
reimbursement were recognized in general and administrative expenses for the
year ended December 31, 2008. The reimbursement was funded by the
insurance carrier in the first quarter of 2009 into a settlement account, where
it will remain until payments are made to the settlement class members.
12. FINANCIAL INSTRUMENTS
The carrying amounts of
our financial instruments, including cash and cash equivalents, investment
securities, accounts receivable and accounts payable and accrued expenses,
approximate fair value due to the short term maturities of these financial
instruments. At December 31, 2008,
the carrying amount of consolidated debt was $320.5 million, and the estimated
fair value was $308.0 million. At September 30,
2009, the carrying amount was $306.2 million, and the estimated fair value was
$313.2 million. The estimated fair value
of long-term debt is based primarily on quoted market prices or discounted cash
flow analysis for the same or similar assets.
13.
Derivative Financial Instruments And
Guarantees
Debt Service Reserve Fund and Bond Fund Payment Account
In August 2001, MCF,
a special purpose entity, completed a bond offering to finance the 2001 Sale
and Leaseback Transaction in which we sold eleven facilities to MCF. In connection with this bond offering, two
reserve fund accounts were established by MCF pursuant to the terms of the
indenture: (1) MCFs Debt Service Reserve Fund, aggregating approximately
$23.4 million at September 30, 2009, was established to: (a) make
payments on MCFs outstanding bonds in the event we (as lessee) should fail to
make the scheduled rental payments to MCF or (b) to the extent payments
were not made under (a), then to make final debt service payments on the then
outstanding bonds and (2) MCFs Bond Fund Payment Account (as reported in
Bond Fund Payment Account and other restricted assets in our Consolidated
Balance Sheet) aggregating approximately $3.9 million at September 30,
2009, was established to accumulate the monthly lease payments that MCF
receives from us until such funds are used to pay MCFs semi-annual bond
interest payments and annual bond principal payments, with any excess to pay
certain other expenses and to make certain transfers. These reserve funds are invested in
short-term money markets and commercial paper.
Both reserve fund accounts were subject to agreements with the MCF
Equity Investors (Lehman Brothers, Inc. (Lehman)) whereby guaranteed
rates of return of 3.0% and 5.08%, respectively, were provided for the balances
in the Debt Service Reserve Fund and the Bond Fund Payment Account. The guaranteed rates of return were
characterized as cash flow hedge derivative instruments. At inception, the derivatives instruments had
an aggregate fair value of $4.0 million, which was recorded as a decrease to
the equity investment in MCF made by the MCF Equity Investors (MCF minority
interest) and as a liability in our Consolidated Balance Sheets. Changes in the
fair value of the derivative instruments were recorded as an adjustment to
other long-term liabilities and reported as other comprehensive income (loss)
in our Consolidated Statements of Operations and Comprehensive Income. Due to the bankruptcy of Lehman in 2008, the
derivative instruments no longer qualified as a hedge and were
de-designated. Amounts included in
accumulated other comprehensive income are reclassified into earnings during
the same periods in which interest is earned on debt service reserve funds. Changes in the fair
18
Table of Contents
value of these
derivatives after de-designation were recorded to earnings. At December 31, 2008, the fair value was
determined to be zero. The derivatives
were terminated by MCF in the first quarter of 2009 with a fair value of zero.
In connection with MCFs
bond offering, Lehman also provided a guarantee of the Debt Service Reserve Fund
if a bankruptcy of the Company were to occur and a trustee for the estate of
the Company were to include the Debt Service Reserve Fund as an asset of the
Companys estate. This guarantee was
characterized as an insurance contract and its fair value was being amortized
to expenses over the life of the debt.
Due to the bankruptcy of Lehman in 2008, the full carrying value of the
insurance guarantee was determined to be unrecoverable. Accordingly, we recorded a charge of $1.3
million in the year ended December 31, 2008.
14.
Segment Disclosure
Our three operating
divisions are our reportable segments. The Adult Secure Services segment
consists of the operations of secure adult incarceration facilities. The
Abraxas Youth and Family Services segment consists of providing residential
treatment and educational programs and non-residential community-based programs
to juveniles between the ages of 10 and 17 who have either been adjudicated or
suffer from behavioral problems. The Adult Community-Based Services segment
consists of providing pre-release and halfway house programs for adult
offenders who are either on probation or serving the last three to six-months
of their sentences on parole and preparing for re-entry into society at large
as well as community-based treatment and education programs as an alternative
to incarceration. All of our customers and long-lived assets are located in the
United States of America. The accounting policies of our reportable segments
are the same as those described in the summary of significant accounting
policies in Note 2 in our 2008 Annual Report on Form 10-K. Intangible
assets are not included in each segments reportable assets, and the
amortization of intangible assets is not included in the determination of a
reportable segments operating income. We evaluate performance based on income
or loss from operations before general and administrative expenses,
amortization of intangibles, interest and income taxes. Corporate and other
assets are comprised primarily of cash, investment securities available for
sale, accounts receivable, debt service and debt service reserve funds,
deposits, property and equipment, deferred taxes, deferred costs and other
assets. Corporate and other expense from operations primarily consists of depreciation
and amortization on the corporate office facilities and equipment and specific
general and administrative charges pertaining to corporate personnel. Such
expenses are presented separately, as they cannot be readily identified for
allocation to a particular segment.
19
Table of Contents
The only significant non-cash item reported in the respective
segments income from operations is depreciation and amortization (excluding
intangibles) (in thousands).
|
|
Three Months Ended
September 30,
|
|
Nine Months Ended
September 30,
|
|
|
|
2009
|
|
2008
|
|
2009
|
|
2008
|
|
|
|
|
|
|
|
|
|
|
|
Revenues:
|
|
|
|
|
|
|
|
|
|
Adult secure services
|
|
$
|
57,686
|
|
$
|
51,470
|
|
$
|
173,819
|
|
$
|
151,673
|
|
Abraxas youth
and family services
|
|
26,679
|
|
26,231
|
|
80,075
|
|
80,891
|
|
Adult
community-based services
|
|
18,914
|
|
17,486
|
|
54,429
|
|
52,661
|
|
Total
revenues
|
|
$
|
103,279
|
|
$
|
95,187
|
|
$
|
308,323
|
|
$
|
285,225
|
|
|
|
|
|
|
|
|
|
|
|
Income from
operations:
|
|
|
|
|
|
|
|
|
|
Adult secure services
|
|
$
|
15,932
|
|
$
|
13,896
|
|
$
|
50,545
|
|
$
|
44,782
|
|
Abraxas youth
and family services
|
|
2,289
|
|
1,696
|
|
6,216
|
|
5,831
|
|
Adult
community-based services
|
|
6,469
|
|
4,603
|
|
17,099
|
|
14,090
|
|
Subtotal
|
|
24,690
|
|
20,195
|
|
73,860
|
|
64,703
|
|
General and
administrative expense
|
|
(5,806
|
)
|
(5,450
|
)
|
(18,214
|
)
|
(19,217
|
)
|
Amortization
of intangibles
|
|
(50
|
)
|
(484
|
)
|
(946
|
)
|
(1,458
|
)
|
Corporate and
other
|
|
(240
|
)
|
(224
|
)
|
(728
|
)
|
(586
|
)
|
Total income
from operations
|
|
$
|
18,594
|
|
$
|
14,037
|
|
$
|
53,972
|
|
$
|
43,442
|
|
|
|
|
|
September 30,
|
|
December 31,
|
|
|
|
|
|
|
|
|
2009
|
|
2008
|
|
|
|
|
Assets:
|
|
|
|
|
|
|
|
|
|
|
Adult secure services
|
|
|
|
$
|
364,906
|
|
$
|
358,406
|
|
|
|
|
Abraxas youth
and family services
|
|
|
|
113,941
|
|
105,991
|
|
|
|
|
Adult
community-based services
|
|
|
|
62,484
|
|
60,170
|
|
|
|
|
Intangible
assets, net
|
|
|
|
14,682
|
|
15,628
|
|
|
|
|
Corporate and
other
|
|
|
|
79,935
|
|
96,726
|
|
|
|
|
Total assets
|
|
|
|
$
|
635,948
|
|
$
|
636,921
|
|
|
|
|
15.
Guarantor Disclosures
We completed an offering of $112.0
million in principal of 10.75% Senior Notes in June 2004 that are due July 1,
2012. The Senior Notes are guaranteed by
each of our subsidiaries (the Guarantor Subsidiaries which are 100% owned). These guarantees are joint and several
obligations of the Guarantor Subsidiaries. MCF does not guarantee the Senior
Notes (Non-Guarantor Subsidiary). The following condensed consolidating
financial information presents the financial condition, results of operations
and cash flows of the Guarantor Subsidiaries and the Non-Guarantor Subsidiary,
together with the consolidating adjustments necessary to present our results on
a consolidated basis.
20
Table of Contents
Condensed Consolidating Balance Sheet as of September 30,
2009 (in thousands)
|
|
Parent
|
|
Guarantor
Subsidiaries
|
|
Non-
Guarantor
Subsidiary
|
|
Eliminations
|
|
Consolidated
|
|
Assets
|
|
|
|
|
|
|
|
|
|
|
|
Current
assets:
|
|
|
|
|
|
|
|
|
|
|
|
Cash and cash
equivalents
|
|
$
|
4,773
|
|
$
|
170
|
|
$
|
29
|
|
$
|
|
|
$
|
4,972
|
|
Accounts
receivable
|
|
1,504
|
|
77,950
|
|
40
|
|
|
|
79,494
|
|
Restricted
assets
|
|
|
|
3,589
|
|
23,315
|
|
|
|
26,904
|
|
Prepaids and
other
|
|
14,608
|
|
1,656
|
|
|
|
|
|
16,264
|
|
Total current
assets
|
|
20,885
|
|
83,365
|
|
23,384
|
|
|
|
127,634
|
|
Property and
equipment, net
|
|
48
|
|
317,908
|
|
139,600
|
|
(5,612
|
)
|
451,944
|
|
Other assets:
|
|
|
|
|
|
|
|
|
|
|
|
Debt service
reserve fund
|
|
|
|
|
|
23,370
|
|
|
|
23,370
|
|
Deferred
costs and other
|
|
64,793
|
|
25,053
|
|
4,866
|
|
(61,712
|
)
|
33,000
|
|
Investment in
subsidiaries
|
|
97,670
|
|
1,856
|
|
|
|
(99,526
|
)
|
|
|
Total assets
|
|
$
|
183,396
|
|
$
|
428,182
|
|
$
|
191,220
|
|
$
|
(166,850
|
)
|
$
|
635,948
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Liabilities and Stockholders Equity
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Current
liabilities:
|
|
|
|
|
|
|
|
|
|
|
|
Accounts
payable and accrued liabilities
|
|
$
|
39,648
|
|
$
|
14,760
|
|
$
|
1,741
|
|
$
|
1,283
|
|
$
|
57,432
|
|
Current
portion of long-term debt
|
|
|
|
13
|
|
13,400
|
|
|
|
13,413
|
|
Total current
liabilities
|
|
39,648
|
|
14,773
|
|
15,141
|
|
1,283
|
|
70,845
|
|
Long-term
debt, net of current portion
|
|
184,492
|
|
6
|
|
108,300
|
|
|
|
292,798
|
|
Deferred tax
liabilities
|
|
17,740
|
|
94
|
|
|
|
1,020
|
|
18,854
|
|
Other
long-term liabilities
|
|
5,916
|
|
76
|
|
61,750
|
|
(65,769
|
)
|
1,973
|
|
Intercompany
|
|
(315,878
|
)
|
317,040
|
|
|
|
(1,162
|
)
|
|
|
Total
liabilities
|
|
(68,082
|
)
|
331,989
|
|
185,191
|
|
(64,628
|
)
|
384,470
|
|
Total Cornell Companies, Inc.
stockholders equity
|
|
249,647
|
|
96,193
|
|
6,029
|
|
(102,222
|
)
|
249,647
|
|
Non-controlling interest
|
|
1,831
|
|
|
|
|
|
|
|
1,831
|
|
Total
stockholders equity
|
|
251,478
|
|
96,193
|
|
6,029
|
|
(102,222
|
)
|
251,478
|
|
Total liabilities and stockholders equity
|
|
$
|
183,396
|
|
$
|
428,182
|
|
$
|
191,220
|
|
$
|
(166,850
|
)
|
$
|
635,948
|
|
21
Table of Contents
Condensed
Consolidating Balance Sheet as of December 31, 2008 (in thousands)
|
|
Parent
|
|
Guarantor
Subsidiaries
|
|
Non-
Guarantor
Subsidiary
|
|
Eliminations
|
|
Consolidated
|
|
Assets
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Current Assets:
|
|
|
|
|
|
|
|
|
|
|
|
Cash and cash equivalents
|
|
$
|
14,291
|
|
$
|
265
|
|
$
|
57
|
|
$
|
|
|
$
|
14,613
|
|
Accounts receivable
|
|
2,045
|
|
66,921
|
|
422
|
|
|
|
69,388
|
|
Restricted assets
|
|
|
|
3,432
|
|
27,938
|
|
|
|
31,370
|
|
Prepaids and other
|
|
13,875
|
|
1,644
|
|
|
|
|
|
15,519
|
|
Total current assets
|
|
30,211
|
|
72,262
|
|
28,417
|
|
|
|
130,890
|
|
Property and equipment, net
|
|
101
|
|
312,446
|
|
141,975
|
|
(4,168
|
)
|
450,354
|
|
Other assets:
|
|
|
|
|
|
|
|
|
|
|
|
Debt service reserve fund
|
|
|
|
|
|
23,750
|
|
|
|
23,750
|
|
Deferred costs and other
|
|
60,322
|
|
23,267
|
|
5,367
|
|
(57,029
|
)
|
31,927
|
|
Investments in subsidiaries
|
|
73,642
|
|
1,856
|
|
|
|
(75,498
|
)
|
|
|
Total assets
|
|
$
|
164,276
|
|
$
|
409,831
|
|
$
|
199,509
|
|
$
|
(136,695
|
)
|
$
|
636,921
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Liabilities and
stockholders equity
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Current liabilities:
|
|
|
|
|
|
|
|
|
|
|
|
Accounts payable and accrued liabilities
|
|
$
|
48,373
|
|
$
|
15,515
|
|
$
|
4,883
|
|
$
|
322
|
|
$
|
69,093
|
|
Current portion of long-term debt
|
|
|
|
12
|
|
12,400
|
|
|
|
12,412
|
|
Total current liabilities
|
|
48,373
|
|
15,527
|
|
17,283
|
|
322
|
|
81,505
|
|
Long-term debt, net of current portion
|
|
186,356
|
|
14
|
|
121,700
|
|
|
|
308,070
|
|
Deferred tax liabilities
|
|
16,246
|
|
94
|
|
|
|
1,151
|
|
17,491
|
|
Other long-term liabilities
|
|
5,851
|
|
113
|
|
56,733
|
|
(61,009
|
)
|
1,688
|
|
Intercompany
|
|
(320,717
|
)
|
320,722
|
|
|
|
(5
|
)
|
|
|
Total liabilities
|
|
(63,891
|
)
|
336,470
|
|
195,716
|
|
(59,541
|
)
|
408,754
|
|
Total Cornell Companies, Inc. stockholders
equity
|
|
227,722
|
|
73,361
|
|
3,793
|
|
(77,154
|
)
|
227,722
|
|
Non-controlling interest
|
|
445
|
|
|
|
|
|
|
|
445
|
|
Total stockholders equity
|
|
228,167
|
|
73,361
|
|
3,793
|
|
(77,154
|
)
|
228,167
|
|
Total liabilities and stockholders equity
|
|
$
|
164,276
|
|
$
|
409,831
|
|
$
|
199,509
|
|
$
|
(136,695
|
)
|
$
|
636,921
|
|
22
Table of Contents
Condensed Consolidating Statement of Operations for
the three months ended September 30, 2009
(in thousands) (unaudited)
|
|
Parent
|
|
Guarantor
Subsidiaries
|
|
Non-
Guarantor
Subsidiary
|
|
Eliminations
|
|
Consolidated
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Revenues
|
|
$
|
4,505
|
|
$
|
118,658
|
|
$
|
4,502
|
|
$
|
(24,386
|
)
|
$
|
103,279
|
|
Operating
expenses, excluding depreciation and amortization
|
|
4,226
|
|
94,459
|
|
34
|
|
(24,300
|
)
|
74,419
|
|
Depreciation
and amortization
|
|
|
|
3,580
|
|
880
|
|
|
|
4,460
|
|
General and
administrative expenses
|
|
5,788
|
|
|
|
18
|
|
|
|
5,806
|
|
Income (loss)
from operations
|
|
(5,509
|
)
|
20,619
|
|
3,570
|
|
(86
|
)
|
18,594
|
|
Overhead
allocations
|
|
(8,672
|
)
|
8,672
|
|
|
|
|
|
|
|
Interest, net
|
|
2,430
|
|
1,331
|
|
2,832
|
|
(217
|
)
|
6,376
|
|
Equity
earnings in subsidiaries
|
|
10,616
|
|
|
|
|
|
(10,616
|
)
|
|
|
Income before
provision for income taxes and non-controlling interest
|
|
11,349
|
|
10,616
|
|
738
|
|
(10,485
|
)
|
12,218
|
|
Provision for
income taxes
|
|
4,656
|
|
|
|
|
|
356
|
|
5,012
|
|
Net income
|
|
6,693
|
|
10,616
|
|
738
|
|
(10,841
|
)
|
7,206
|
|
Non-controlling
interest
|
|
|
|
|
|
|
|
513
|
|
513
|
|
Income
available to stockholders
|
|
$
|
6,693
|
|
$
|
10,616
|
|
$
|
738
|
|
$
|
(11,354
|
)
|
$
|
6,693
|
|
23
Table of Contents
Condensed Consolidating Statement of Operations for
the three months ended September 30, 2008
(in thousands) (unaudited)
|
|
Parent
|
|
Guarantor
Subsidiaries
|
|
Non-
Guarantor
Subsidiary
|
|
Eliminations
|
|
Consolidated
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Revenues
|
|
$
|
4,502
|
|
$
|
108,050
|
|
$
|
4,502
|
|
$
|
(21,867
|
)
|
$
|
95,187
|
|
Operating
expenses, excluding depreciation and amortization
|
|
4,976
|
|
87,989
|
|
11
|
|
(21,742
|
)
|
71,234
|
|
Depreciation
and amortization
|
|
|
|
3,570
|
|
1,056
|
|
(160
|
)
|
4,466
|
|
General and
administrative expenses
|
|
5,429
|
|
|
|
21
|
|
|
|
5,450
|
|
Income (loss)
from operations
|
|
(5,903
|
)
|
16,491
|
|
3,414
|
|
35
|
|
14,037
|
|
Overhead
allocations
|
|
(8,760
|
)
|
8,760
|
|
|
|
|
|
|
|
Interest, net
|
|
1,811
|
|
1,274
|
|
2,732
|
|
(63
|
)
|
5,754
|
|
Equity
earnings in subsidiaries
|
|
6,849
|
|
|
|
|
|
(6,849
|
)
|
|
|
Income from
provision for income taxes and non-controlling interest
|
|
7,895
|
|
6,457
|
|
682
|
|
(6,751
|
)
|
8,283
|
|
Provision for
income taxes
|
|
3,067
|
|
|
|
|
|
301
|
|
3,368
|
|
Net income
|
|
4,828
|
|
6,457
|
|
682
|
|
(7,052
|
)
|
4,915
|
|
Non-controlling
interest
|
|
|
|
|
|
|
|
87
|
|
87
|
|
Income
available to stockholders
|
|
$
|
4,828
|
|
$
|
6,457
|
|
$
|
682
|
|
$
|
(7,139
|
)
|
$
|
4,828
|
|
24
Table of Contents
Condensed Consolidating Statement of Operations for
the nine months ended September 30, 2009
(in thousands) (unaudited)
|
|
Parent
|
|
Guarantor
Subsidiaries
|
|
Non-
Guarantor
Subsidiary
|
|
Eliminations
|
|
Consolidated
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Revenues
|
|
$
|
13,509
|
|
$
|
354,461
|
|
$
|
13,506
|
|
$
|
(73,153
|
)
|
$
|
308,323
|
|
Operating
expenses, excluding depreciation and amortization
|
|
14,574
|
|
280,170
|
|
187
|
|
(72,887
|
)
|
222,044
|
|
Depreciation
and amortization
|
|
|
|
11,442
|
|
2,641
|
|
10
|
|
14,093
|
|
General and
administrative expenses
|
|
18,158
|
|
|
|
56
|
|
|
|
18,214
|
|
Income (loss)
from operations
|
|
(19,223
|
)
|
62,849
|
|
10,622
|
|
(276
|
)
|
53,972
|
|
Overhead
allocations
|
|
(28,270
|
)
|
28,270
|
|
|
|
|
|
|
|
Interest, net
|
|
6,903
|
|
4,005
|
|
8,652
|
|
(655
|
)
|
18,905
|
|
Equity
earnings in subsidiaries
|
|
30,574
|
|
|
|
|
|
(30,574
|
)
|
|
|
Income before
provision for income taxes and non-controlling interest
|
|
32,718
|
|
30,574
|
|
1,970
|
|
(30,195
|
)
|
35,067
|
|
Provision for
income taxes
|
|
13,536
|
|
|
|
|
|
963
|
|
14,499
|
|
Net income
|
|
19,182
|
|
30,574
|
|
1,970
|
|
(31,158
|
)
|
20,568
|
|
Non-controlling
interest
|
|
|
|
|
|
|
|
1,386
|
|
1,386
|
|
Income
available to stockholders
|
|
$
|
19,182
|
|
$
|
30,574
|
|
$
|
1,970
|
|
$
|
(32,544
|
)
|
$
|
19,182
|
|
25
Table of Contents
Condensed Consolidating Statement of Operations for
the nine months ended September 30, 2008
(in thousands) (unaudited)
|
|
Parent
|
|
Guarantor
Subsidiaries
|
|
Non-
Guarantor
Subsidiary
|
|
Eliminations
|
|
Consolidated
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Revenues
|
|
$
|
13,506
|
|
$
|
324,295
|
|
$
|
13,506
|
|
$
|
(66,082
|
)
|
$
|
285,225
|
|
Operating expenses,
excluding depreciation and amortization
|
|
12,165
|
|
263,302
|
|
41
|
|
(65,785
|
)
|
209,723
|
|
Depreciation
and amortization
|
|
|
|
10,154
|
|
3,167
|
|
(478
|
)
|
12,843
|
|
General and
administrative expenses
|
|
19,161
|
|
|
|
56
|
|
|
|
19,217
|
|
Income (loss)
from operations
|
|
(17,820
|
)
|
50,839
|
|
10,242
|
|
181
|
|
43,442
|
|
Overhead
allocations
|
|
(26,419
|
)
|
26,419
|
|
|
|
|
|
|
|
Interest, net
|
|
5,698
|
|
3,820
|
|
8,284
|
|
(187
|
)
|
17,615
|
|
Equity
earnings in subsidiaries
|
|
21,904
|
|
|
|
|
|
(21,904
|
)
|
|
|
Income before
provision for income taxes and non-controlling interest
|
|
24,805
|
|
20,600
|
|
1,958
|
|
(21,536
|
)
|
25,827
|
|
Provision for
income taxes
|
|
9,996
|
|
|
|
|
|
935
|
|
10,931
|
|
Net income
|
|
14,809
|
|
20,600
|
|
1,958
|
|
(22,471
|
)
|
14,896
|
|
Non-controlling
interest
|
|
|
|
|
|
|
|
87
|
|
87
|
|
Income
available to stockholders
|
|
$
|
14,809
|
|
$
|
20,600
|
|
$
|
1,958
|
|
$
|
(22,558
|
)
|
$
|
14,809
|
|
26
Table of Contents
Condensed Consolidating Statement of Cash Flows for
the nine months ended September 30, 2009 (in thousands) (unaudited)
|
|
Parent
|
|
Guarantor
Subsidiaries
|
|
Non-
Guarantor
Subsidiary
|
|
Consolidated
|
|
Cash flows from operating activities:
|
|
|
|
|
|
|
|
|
|
Net cash
provided by (used in) operating activities
|
|
$
|
(7,839
|
)
|
$
|
11,763
|
|
$
|
7,749
|
|
$
|
11,673
|
|
|
|
|
|
|
|
|
|
|
|
Cash flows from investing activities:
|
|
|
|
|
|
|
|
|
|
Capital
expenditures
|
|
|
|
(14,456
|
)
|
|
|
(
14,456
|
)
|
Proceeds from
insurance recoveries on property and equipment
|
|
|
|
2,608
|
|
|
|
2,608
|
|
Withdrawals
from restricted debt payment account, net
|
|
|
|
|
|
4,623
|
|
4,623
|
|
Net cash
provided by (used in) investing activities
|
|
$
|
|
|
$
|
(11,848
|
)
|
$
|
4,623
|
|
$
|
(7,225
|
)
|
|
|
|
|
|
|
|
|
|
|
Cash flows from financing activities:
|
|
|
|
|
|
|
|
|
|
Proceeds from
line of credit
|
|
2,000
|
|
|
|
|
|
2,000
|
|
Payments of
line of credit
|
|
(4,000
|
)
|
|
|
|
|
(4,000
|
)
|
Payment of
MCF bonds
|
|
|
|
|
|
(12,400
|
)
|
(12,400
|
)
|
Payments on
capital lease obligations
|
|
|
|
(10
|
)
|
|
|
(10
|
)
|
Proceeds from
exercise of stock options
|
|
321
|
|
|
|
|
|
321
|
|
Net cash used
in financing activities
|
|
$
|
(1,679
|
)
|
$
|
(10
|
)
|
$
|
(12,400
|
)
|
$
|
(14,089
|
)
|
|
|
|
|
|
|
|
|
|
|
Net decrease in cash and cash equivalents
|
|
(9,518
|
)
|
(95
|
)
|
(28
|
)
|
(9,641
|
)
|
|
|
|
|
|
|
|
|
|
|
Cash and cash equivalents at beginning of period
|
|
14,291
|
|
265
|
|
57
|
|
14,613
|
|
|
|
|
|
|
|
|
|
|
|
Cash and cash equivalents at end of period
|
|
$
|
4,773
|
|
$
|
170
|
|
$
|
29
|
|
$
|
4,972
|
|
27
Table of Contents
Condensed Consolidating Statement of Cash Flows for
the nine months ended September 30, 2008 (in thousands) (unaudited)
|
|
Parent
|
|
Guarantor
Subsidiaries
|
|
Non-
Guarantor
Subsidiary
|
|
Consolidated
|
|
Cash flows from operating activities:
|
|
|
|
|
|
|
|
|
|
Net cash
provided by (used in) operating activities
|
|
$
|
(44,986
|
)
|
$
|
58,271
|
|
$
|
7,681
|
|
$
|
20,966
|
|
|
|
|
|
|
|
|
|
|
|
Cash flows from investing activities:
|
|
|
|
|
|
|
|
|
|
Capital
expenditures
|
|
|
|
(59,282
|
)
|
|
|
(59,282
|
)
|
Sales of
investment securities
|
|
250
|
|
|
|
|
|
250
|
|
Proceeds from
the sale of fixed assets
|
|
|
|
791
|
|
|
|
791
|
|
Withdrawals
from restricted debt payment account, net
|
|
|
|
|
|
3,702
|
|
3,702
|
|
Net cash
provided by (used in) investing activities
|
|
$
|
250
|
|
$
|
(58,491
|
)
|
$
|
3,702
|
|
$
|
(54,539
|
)
|
|
|
|
|
|
|
|
|
|
|
Cash flows from financing activities:
|
|
|
|
|
|
|
|
|
|
Proceeds from
line of credit
|
|
43,000
|
|
|
|
|
|
43,000
|
|
Payment of
MCF bonds
|
|
|
|
|
|
(11,400
|
)
|
(11,400
|
)
|
Tax benefit
of stock option exercises
|
|
140
|
|
|
|
|
|
140
|
|
Payments on
capital lease obligations
|
|
|
|
(8
|
)
|
|
|
(8
|
)
|
Proceeds from
exercise of stock options
|
|
597
|
|
|
|
|
|
597
|
|
Net cash
provided by (used in) financing activities
|
|
$
|
43,737
|
|
$
|
(8
|
)
|
$
|
(11,400
|
)
|
$
|
32,329
|
|
|
|
|
|
|
|
|
|
|
|
Net decrease in cash and cash equivalents
|
|
(999
|
)
|
(228
|
)
|
(17
|
)
|
(1,244
|
)
|
|
|
|
|
|
|
|
|
|
|
Cash and cash equivalents at beginning of period
|
|
2,565
|
|
408
|
|
55
|
|
3,028
|
|
|
|
|
|
|
|
|
|
|
|
Cash and cash equivalents at end of period
|
|
$
|
1,566
|
|
$
|
180
|
|
$
|
38
|
|
$
|
1,784
|
|
28
Table of Contents
ITEM
2.
Managements Discussion and Analysis of Financial Condition
and Results of Operations
General
Cornell Companies, Inc.
is a leading provider of correctional, detention, educational, rehabilitation
and treatment services outsourced by federal, state, county and local
government agencies. We provide a diversified portfolio of services for adults
and juveniles through our three operating divisions: (1) Adult Secure
Services; (2) Abraxas Youth and Family Services and (3) Adult
Community-Based Services. At September 30, 2009, we operated 68 facilities
with a total service capacity of 20,597 and had one vacant facility with a
service capacity of 70 beds. Our facilities are located in 15 states and the
District of Columbia.
The following table sets forth for the periods
indicated total residential service capacity and contracted beds in operation
at the end of the periods shown, average contract occupancy percentages and
total non-residential service capacity.
|
|
September 30,
|
|
September 30,
|
|
|
|
2009
|
|
2008
|
|
Residential
|
|
|
|
|
|
Service
capacity (1)
|
|
18,334
|
|
17,788
|
|
Contracted
beds in operation (end of period) (2)
|
|
17,480
|
|
17,017
|
|
Average
contract occupancy based on contracted beds in operation (3) (4)
|
|
91.6
|
%
|
92.7
|
%
|
Non-Residential
|
|
|
|
|
|
Service
capacity (5)
|
|
2,333
|
|
2,403
|
|
(1)
Residential service capacity is comprised of the
number of beds currently available for service in our residential facilities.
(2)
At certain residential facilities, the contracted
capacity is lower than the facilitys service capacity. We could increase a facilitys contracted
capacity by obtaining additional contracts or by renegotiating existing
contracts to increase the number of beds covered. However, we may not be able to obtain
contracts that provide occupancy levels at a facilitys service capacity or be
able to maintain current contracted capacities in future periods.
(3)
Occupancy percentages reflect less than normalized
occupancy during the start-up phase of any applicable facility, resulting in a
lower average occupancy in periods when we have substantial start-up
activities.
(4)
Average contract occupancy percentages are calculated
based on actual occupancy for the period as a percentage of the contracted
capacity for residential facilities in operation. These percentages do not reflect the
operations of non-residential community-based programs. At certain residential facilities, our
contracted capacity is lower than the facilitys service capacity. Additionally, certain facilities have and are
currently operating above the contracted capacity. As a result, average contract occupancy
percentages can exceed 100% if the average actual occupancy exceeded contracted
capacity.
(5)
Service capacity for non-residential programs is based
on either contractual terms or an estimate of the number of clients to be
served. We update these estimates at
least annually based on the programs budget and other factors.
Our operating results for
the nine months ended September 30, 2009 were impacted by a few
significant events. We completed the 700 bed expansion at D. Ray James
Prison at the beginning of April 2009 and continued construction on a new
1,250 bed facility in Hudson, Colorado.
Our 2008 results of operation were positively affected by a 300 bed
expansion at the D. Ray James Prison which we activated in February 2008. In addition, in the nine months ended September 30,
2008, we recorded a contract-based revenue adjustment of approximately $1.5
million at the Regional Correctional Center (RCC) for the contract year ended
March 2008.
Although we believe we
will continue to see steady demand across our various business segments and
customer base (federal, state and local) in 2010, we are monitoring the
declining economic trends (which began in 2008) and the related impact on
government budget plans and the effect tightened spending plans could have on our
business (with respect to possible areas including utilization, per diem rates,
etc.) We expect one of the key areas of
focus for our performance for the remainder of 2009 to be our ability to manage
our facility construction currently in process in Hudson, Colorado and the
related activation of this facility in the fourth quarter of 2009 (for our
contract with the State of Alaska Department of Corrections (Alaska DOC)). We also plan to remain focused on our
operating margins, on increasing utilization (particularly in the Abraxas
division) and improving customer mix as we believe those initiatives are key
elements of our financial performance.
Management Overview
Demand
.
Our business is driven generally by
demand for incarceration or treatment services, and specifically by demand for
private incarceration or treatment services, within our three primary business
segments: Adult Secure Services; Abraxas Youth and Family Services; and Adult
Community-Based Services. The demand for adult and juvenile corrections and
treatment services has
29
Table of Contents
generally increased at a steady rate over the past ten years, largely
as a result of increasing sentence terms and/or mandatory sentences for
criminals and as well a greater range of criminal acts, increasing demand for
incarceration of illegal aliens and a public recognition of the need to provide
services to juveniles that will improve the possibility that they will lead
productive lives. Moreover, demand for our services is also affected by the
amount of available capacity in the government systems to enable governments to
provide the services themselves, as well as desire and ability of these systems
to add additional capacity. In addition, the balance between community-based
corrections treatment of adults as an alternative to traditional incarceration
continues to be analyzed by many political and societal parties. Among other things, we monitor federal, state
and industry communications and statistics relative to trends in prison
populations, juvenile justice statistics and initiatives, and developments in
alternatives to traditional incarceration or detention of adults for
opportunities to expand our scope or delivery of services.
The federal government contracts with private providers for the
incarceration of adults, whether they are serving prison sentences, detained as
illegal aliens, detained in anticipation of pending judicial administration or
transitioning from prison to society.
Chief among the federal agencies which use private providers are the
Federal Bureau of Prisons (BOP), U.S. Immigration and Customs Enforcement (ICE)
and United States Marshalls Service (USMS). We provide adult secure and adult
community-based services to the federal government. Most of the federal
involvement in juvenile administration in the federal system is handled via
Medicare and Medicaid assistance to state governments. Although there are
circumstances in which we may contract with a federal agency on a sole source
basis, the primary means by which we secure a contract with a federal agency is
via the RFP bidding process. From time
to time, we contract to provide management services to a local governmental
unit who then bids on a federal contract.
States and smaller governmental units remain divided on the issue of
private prisons and private provision of juvenile and community-based programs,
although a majority of states permit private provision for our services. We anticipate that increasing budget pressure
on states and smaller governmental units may cause more states and smaller
governmental units to consider utilizing private providers such as us to
provide these services on a more economical basis. We believe capital budget
constraints among prison agencies may encourage them to continue to explore
outsourcing to private operators as an alternative to deploying their own
capital for prison construction or major refurbishment. Although it varies from
governmental unit to governmental unit, the primary political forces who
typically oppose privatization of prisons are organized labor and religious
groups.
Private juvenile and community-based programs are utilized by states and
local governmental units and are organized on a profit and not-for-profit
basis. We monitor opportunities in these
segments via our corporate and business division development officers. Many opportunities are typically not
published in any formal manner and, accordingly, we believe that taking the
initiative at the state and local levels is key in developing sole source
opportunities.
Performance
.
We track a number of factors as we monitor financial performance. Chief among them are:
·
capacity
(the number of beds within each business segments facilities),
·
occupancy
(utilization),
·
per
diem reimbursement rates,
·
revenues,
·
operating
margins, and
·
operating
expenses.
Capacity.
Capacity, commonly expressed in terms of number of beds,
is primarily impacted by the number and size of the facilities we own or lease
and the facilities we operate on behalf of a third party owner or lessee. We view capacity as one of the measures of
our development efforts, through which we may increase capacity by adding new
projects or by expanding existing projects (as we have done in 2007 through
2009 at several of our facilities including Great Plains Correctional Facility
and D. Ray James Prison). As part of the
evaluation of our development efforts, we will assess (a) whether a given
development project was brought into service in accordance with our expectation
as to time and expense; and (b) the number of projects in development or
under consideration at the relevant point in time. In addition to the focus on new projects,
capacity will reflect our success in renewing and maintaining existing
contracts and facilities. It will also
reflect any closure of programs or facilities due to underutilization or failure
to earn an adequate risk-adjusted rate of return. We must also be cognizant of the possibility
that state or local budgetary limitations may cause the contractual commitment
to a given facility to be reduced or even eliminated, which would require us to
either secure an alternate customer or close the operation.
Occupancy.
Occupancy is typically expressed in terms
of percentage of contract capacity utilized.
We look at occupancy to assess the efficacy of both our efforts to
market our facilities and our efforts to retain existing customers or
contracts. Because revenue varies
directly with occupancy, occupancy is a principal driver of our revenues. Our
industry experiences significant economies of scale, whereby as occupancy
rises, operating costs per resident decline. Some of our contracts are take-or-pay,
meaning that the agency making use of the facility is obligated to pay for beds
even though they are not used.
Historically, occupancy percentages in many of our facilities have been
high and we are mindful of the need to maintain such occupancy levels. As new
30
Table of Contents
development projects are brought into service, occupancy percentages
may decline until the projects reach full utilization (as, for example, with
the activation of the 1,100 bed expansion at Great Plains Correctional Facility
during the fourth quarter of 2008 and the 700 bed expansion at D. Ray James
Prison during the second quarter of 2009). Where we have commitments for
utilization before the commencement of operations, occupancy percentages
reflect the speed at which a facility achieves full service/implementation.
However, we may decide to undertake development projects without written
commitments to make full use of a facility. In these instances, we have
performed our own assessment of the existing or anticipated demand, based on
discussions with local government or other potential customer representatives
and our analysis of other factors, of the demand for services at the
facility. There is no assurance that we
would recover our initial investment in these projects. We will monitor occupancy as a measure of the
accuracy of our estimation of the demand for the services of a development
facility and will incorporate this information in future assessments of
potential projects. In addition, the ramp phase for our youth facilities is
typically longer than that experienced in our adult facilities, which will
impact our occupancy in the Abraxas Youth and Family Services division in a
given period.
Per Diem
Reimbursement Rates.
Per diem reimbursement rates are another
key element of our gross revenue and operating margin since per diem contracts
represent a majority of our revenues (approximately 61.0% and 61.2% for the
three and nine months ended September 30, 2009, respectively). Per diem rates are a function of negotiation
between management and a governmental unit at the inception of a contract or
through the bidding process. Actual per
diem rates vary dramatically across our business segments, as well as within
each business segment, depending upon the particular service or program
provided. The initial per diem rates often change during the term of a contract
in accordance with a schedule. The
amount of the change can be a fixed amount set forth within the contract, an
amount determined by formulas set forth within the contract or an amount
determined by negotiations between management and the governmental unit (often
these negotiations are along the same lines as the original per diem
negotiation a review of expenses and approval of an amount to recompense for
expenses and assure the potential of an operating profit). In recent years, as budgetary pressures on
governmental units have increased, some of our customers have negotiated relief
from formulaic increase provisions within their agreements or have declined to
include in their appropriation legislation amounts that would increase the per
diem rates payable under the contract. Based on the economic turmoil which
began in the second half of 2008, we are expecting such pressures to continue
through the remainder of 2009 and likely into 2010 for many of our customers.
In similar prior situations we have attempted to mitigate the impact of these
developments by negotiating services provided, obtaining commitments for
increased volume and other measures. We
may also choose to consider terminating an existing relationship at a given facility
and replacing it with a new customer (as was done with our Great Plains
Correctional Facility in 2007).
Revenues.
We derive substantially all of our revenues from
providing adult corrections and treatment and juvenile justice, educational and
treatment services outsourced by federal, state and local government agencies
in the United States. Revenues for our services are generally recognized on a
per diem rate based upon the number of occupant days or hours served for the
period, on a guaranteed take-or-pay basis or on a cost-plus reimbursement
basis. For the three months ended September 30, 2009, our revenue base
consisted of 61.0% for services provided under per diem contracts, 34.0% for
services provided under take-or-pay and management contracts, 2.9% for services
provided under cost-plus reimbursement contracts, 1.9% for services provided
under fee-for-service contracts and 0.2% from other miscellaneous sources. For the three months ended September 30,
2008, our revenue base consisted of 54.3% for services provided under per diem
contracts, 40.2% for services provided under take-or-pay and management
contracts, 3.4% for services provided under cost-plus reimbursement contracts,
1.9% for services provided under fee-for-service contracts and 0.2% from other
miscellaneous sources. For the nine months ended September 30, 2009 our
revenue base consisted of 61.2% for services provided under per diem contracts,
33.5% for services provided under take-or-pay and management contracts, 3.3%
for services provided under cost-plus reimbursement contracts, 1.8% for
services provided under fee-for-service contracts and 0.2% from other
miscellaneous sources. For the nine
months ended September 30, 2008 our revenue base consisted of 52.4% for
services provided under per diem contracts, 41.6% for services provided under
take-or-pay and management contracts, 3.8% for services provided under
cost-plus reimbursement contracts, 2.0% for services provided under
fee-for-service contracts and 0.2% from other miscellaneous sources. The increase in revenues in the respective
2009 periods provided under per diem contracts (and the corresponding decrease
in revenues provided under take-or-pay and management contracts) primarily
reflects the transition of our contract with the Arizona Department of
Corrections from a take-or-pay contract to a per diem contract upon the
activation (and subsequent ramp in the fourth quarter of 2008) of its 1,100 bed
expansion. In addition, we also terminated several management contracts in 2008
(including Salt Lake Valley Detention Center and Lincoln County Detention
Center in September 2008 and February 2008, respectively).
Revenues can
fluctuate from year to year due to changes in government funding policies,
changes in the number or types of clients referred to our facilities by governmental
agencies, changes in the types of services delivered to our customers, the
opening of new facilities or the expansion of existing facilities and the
termination of contracts for a facility or the closure of a facility.
Factors considered in determining billing rates to charge include: (1) the
programs specified by the contract and the related staffing levels; (2) wage
levels customary in the respective geographic areas; (3) whether the
proposed facility is to be leased or purchased; and (4) the anticipated
average occupancy levels that could reasonably be expected to be maintained and
the duration of time required to reach such occupancy levels.
31
Table of Contents
Revenues-Adult Secure Services.
Revenues for our Adult Secure Services division are
primarily generated from per diem, take-or-pay and management contracts. For the three months ended September 30,
2009 and 2008, we realized average per diem rates on our adult secure
facilities of approximately $53.72 and $53.12, respectively. For the nine months ended September 30,
2009 and 2008, we realized average per diem rates of approximately $54.25 and
$54.00, respectively.
The average
per diem rate for the nine months ended September 30, 2008 benefited from
a contract-based revenue adjustment for the contract year ended March 2008
in the amount of approximately $1.5 million at the RCC. We periodically have
experienced pressure from contracting governmental agencies to limit or even
reduce per diem rates. Many of these governmental entities are under severe
budget pressures and we anticipate that these agencies may periodically
approach us in the remainder of 2009 and likely in 2010 about per diem rate
concessions (or decline to provide funding for contractual rate
increases). Decreases in, or the lack of
anticipated increases in, per diem rates could adversely impact our operating
margin.
Revenues-Abraxas Youth and Family Services.
Revenues for our Abraxas Youth and Family Services
division are primarily generated from per diem, fee-for-service and cost-plus
reimbursement contracts. For the three
months ended September 30, 2009 and 2008, we realized average per diem
rates on our residential youth and family services facilities of approximately
$195.74 and $193.89, respectively. For
the nine months ended September 30, 2009 and 2008, we realized average per
diem rates of approximately $195.88 and $191.03, respectively. The increase in the average per diem rate for
2009 reflects the continued ramp-up of the Abraxas Academy (reactivated in the
fourth quarter of 2006), the reactivation of the Hector Garza Residential
Treatment Center in August 2007 as well as changes in the mix of services
provided and customers served at our other facilities. For the three months ended September 30,
2009 and 2008, we realized average fee-for-service rates for our
non-residential community-based Abraxas Youth and Family Services facilities
and programs, including rates that are limited by Medicaid and other private
insurance providers, of approximately $45.91 and $45.32, respectively. For the
nine months ended September 30, 2009 and 2008, we realized average fee for
service rates of approximately $45.36 and $47.85, respectively. The fluctuation in the average
fee-for-service rates for 2009 and 2008 is due to changes in the mix of
services provided at our non-residential facilities. The majority of our Abraxas
Youth and Family Services contracts renew annually.
Revenues-Adult Community-Based Services.
Revenues for our Adult Community-Based Services
division are primarily generated from per diem and fee-for-service contracts.
For the three months ended September 30, 2009 and 2008, we realized average
per diem rates on our residential adult community-based facilities of
approximately $66.47 and $68.46, respectively. For the nine months ended September 30,
2009 and 2008, we realized average per diem rates on our residential Adult
Community-Based Services facilities of approximately $66.97 and $66.44,
respectively. For the three months ended
September 30, 2009 and 2008, we realized average fee-for-service rates on
our non-residential Adult Community-Based Services facilities and programs of
approximately $12.22 and $11.90, respectively.
For the nine months ended September 30, 2009 and 2008, we realized
average fee-for-service rates on our non-residential Adult Community-Based
Services facilities and programs of approximately $9.93 and $13.71, respectively. Our average fee-for-service rates fluctuate
from year to year principally due to changes in the mix of services provided by
our various Adult Community-Based Services programs and facilities.
Operating
Margins.
We have historically experienced higher operating
margins in our Adult Secure Services and Adult Community-Based Services
divisions as compared to our Abraxas Youth and Family Services division. Our
operating margin, in a given period, will be impacted by those facilities which
may either be underutilized, dormant or have been reactivated during the
period. As previously discussed, we have reactivated several facilities,
including the Abraxas Academy and the Hector Garza Residential Treatment Center
in 2006 and 2007, respectively. We have also expanded several of our Adult
Secure facilities during 2008 and 2009 (D. Ray James Prison, Great Plains
Correctional Facility and Walnut Grove Youth Correctional Facility, for
example), which provides the opportunity to leverage existing infrastructure.
Additionally, our operating margins within a division can vary from facility to
facility based on whether a facility is owned or leased, the level of
competition for the contract award, the proposed length of the contract, the
mix of services provided, the occupancy levels for a facility, the level of
capital commitment required with respect to a facility, the anticipated changes
in operating costs over the term of the contract and our ability to increase a
facilitys contract revenue. Under take-or-pay contracts, such as the contract
at the Moshannon Valley Correctional Center, operating margins are typically
higher during the early stages of the contract as the facilitys population
ramps up (as revenues are received at contract percentages regardless of actual
occupancy). As the variable costs (primarily resident-related and certain
facility costs) increase with the growth in population, operating margins will
generally decline to a stabilized level. Following its activation in April 2006,
we experienced such operating margin impact pertaining to the Moshannon Valley
Correctional Center in the third and fourth quarters of 2006. A decline in
occupancy at our Abraxas Youth and Family Services facilities can have a more
significant negative impact on operating margins than a decline in occupancy in
our Adult Secure Services division due to the longer periods typically required
to ramp resident population at a youth facility (given the relative facility
scale influences present in these divisions).
We have experienced and expect to continue to experience interim period
operating margin fluctuations due to factors such as the number of calendar
days in the period, higher payroll taxes (generally in the first half of the
year) and salary and wage increases and insurance cost increases that are
incurred prior to certain contract rate increases. Periodically, many of the
governmental agencies with
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whom we contract may experience budgetary pressures and may approach us
to limit or reduce per diem rates (including contractual price increases as
well). We have seen indications of such customer behavior in 2009 and believe
it will continue into 2010. Decreases in, or the lack of anticipated increases
in, per diem rates could adversely impact our operating margin. Additionally, a
decrease in per diem rates without a corresponding decrease in operating
expenses could also adversely impact our operating margin.
Operating Expenses.
We track
several different areas of our operating expenses. Foremost among these expenses are employee
compensation and benefits and expenses, risk related areas such as general
liability, medical and workers compensation, client/inmate costs such as food,
clothing, medical and programming costs, financing costs and administrative
overhead expenses. Increases or decreases in one or more of these expenses,
such as our experience with rising insurance costs, can have a material effect
on our financial performance. Operating
expenses are also impacted by decisions to close or terminate a particular program
or facility. Such decisions are based on
our assessments of operating results, operating efficiency and risk-adjusted
returns and are an ongoing part of our portfolio management. In addition, decisions to restructure
employee positions will typically increase period costs initially (at the time
of such actions), but generally reduce post-restructuring expense levels.
We are responsible for all facility operating costs, except for certain
debt service and interest or lease payments for facilities where we have a
management contract only. At these facilities, the facility owner is
responsible for all debt service and interest or lease payments related to the
facility. We are responsible for all other operating expenses at these
facilities. We operated 13 and 16 facilities under management contracts at September 30,
2009 and 2008, respectively. Included in the facilities under management
contracts at September 30, 2009 were the Walnut Grove Youth Correctional
Facility and the eight Los Angeles County Jails, which represented 1,714 beds
of service capacity, or approximately 82.5%, of the residential service
capacity represented by management contracts.
A majority of our facility operating costs consists of fixed costs.
These fixed costs include lease and rental expense, insurance, utilities and
depreciation. As a result, when we
commence operation of new or expanded facilities, fixed operating costs may
increase. The amount of our variable operating costs, including food, medical
services, supplies and clothing, depend on occupancy levels at the facilities.
Our largest single operating cost, facility payroll expense and related
employment taxes and expenses, has both a fixed and a variable component. We
can adjust a facilitys staffing levels and the related payroll expense to a
certain extent based on occupancy at a facility; however a minimum fixed number
of employees is required to operate and maintain any facility regardless of
occupancy levels. Personnel costs are subject to increases in tightening labor
markets based on local economic environments and other conditions.
We incur pre-opening and start-up expenses including payroll, benefits,
training and other operating costs prior to opening a new or expanded facility
and during the period of operation while occupancy is ramping up. These costs
vary by contract (and also the pace/scale of the activation and related
population ramp). Since pre-opening and start-up costs are generally factored
into the revenue per diem rate that is charged to the contracting agency, we
typically expect to recover these upfront costs over the life of the contract.
Because occupancy rates during a facilitys start-up phase typically result in
capacity under-utilization for at least 90 to 180 days, we may incur additional
post-opening start-up costs. The ramp phase
for our youth facilities is typically longer than that experienced in adult
facilities. We do not anticipate post-opening start-up costs at any adult
secure facilities operated under any future contracts with the BOP which are
take-or-pay contracts, meaning that the BOP will pay at least 80.0% of the
contractual monthly revenue once the facility opens, regardless of actual
occupancy.
Newly opened facilities
are staffed according to applicable regulatory or contractual requirements when
we begin receiving offenders or clients. Offenders or clients are typically
assigned to a newly opened facility on a phased-in basis over a one- to
six-month period. Our start-up period for new juvenile operations is 12 months
from the date we begin recognizing revenue unless break-even occupancy levels
are achieved before then. The actual time required to ramp a juvenile facility
(with an approximate capacity, for example, of 100 to 200 beds) may be a period
of one to three years. Our start-up period for new adult operations is nine
months from the date we begin recognizing revenue unless break-even occupancy
levels are achieved before then. The
approximate time to ramp an adult facility of approximately 1,000 beds may be a
period of three to six months, depending upon the customer requirements.
Acceleration of the ramp pace may also increase the pre-opening start-up costs
(primarily related to costs such as personnel, training, etc.). Although we
typically recover these upfront costs over the life of the contract, quarterly
results can be substantially affected by the timing of the commencement of
operations as well as the development and construction of new facilities.
Working capital requirements generally increase immediately prior to
commencing management of a new or expanded facility as we incur start-up costs
and purchase necessary equipment and supplies before facility management
revenue is realized.
General and
administrative expenses consist primarily of costs for corporate and
administrative personnel who provide senior management, legal, finance,
accounting, human resources, investor relations, payroll and information
systems, costs of business development and outside professional and consulting
fees.
33
Table of Contents
Recent Developments
D. Ray James Prison
In August 2007, we
announced that we were initiating a second expansion of the D. Ray James
Prison. This expansion project increased the facilitys service capacity by an
additional 700 beds for a total service capacity of approximately 2,800 beds.
This expansion project began in the first quarter of 2008 and was completed in
the second quarter of 2009. We are
currently marketing this additional expansion to multiple customers, but we can
make no assurances as to who the customer will be (or what the possible timing
might be).
Hudson, Colorado
In August 2008, we
entered into an agreement pursuant to which we will lease a new 1,250 male bed
adult secure facility in Hudson, Colorado. The facility is owned by a third
party and is being built on land we sold to the third party. We retained
approximately 270 acres out of the original 320 acres we acquired in 2007. We
anticipate the construction, which began in the third quarter of 2008, to be
completed in November 2009. We have entered into a contract with the
Alaska DOC to house up to 1,000 state prisoners at the facility. The contract
became effective on September 16, 2009 and has an initial term through June 30,
2012, with annual renewal options for the period July 1, 2012 through October 31,
2019. Under the contract, the Alaska DOC will house up to 1,000 adult male
inmates at the Facility, with an agreed-upon 800-bed guarantee. The intake of
approximately 850 inmates is expected to commence in late November 2009
and be completed by late December 2009.
Liquidity and Capital Resources
General
.
Our primary capital requirements are for (1) purchases,
construction or renovation of new facilities, (2) expansions of existing
facilities, (3) working capital, (4) pre-opening and start-up costs
related to new operating contracts, (5) acquisitions, (6) information
systems hardware and software, and (7) furniture, fixtures and
equipment. Working capital requirements
generally increase immediately prior to commencing management of a new or
expanded facility as we incur start-up costs and purchase necessary equipment
and supplies before facility management revenue is realized.
Cash Flows From Operating
Activities.
Cash provided by operations was approximately
$11.7 million for the nine months ended September 30, 2009 compared to
$21.0 million for the nine months ended September 30, 2008. The decrease from the prior period was
principally due (1) an increase of approximately $5.7 million in net income in
the nine months ended September 30, 2009, (2) a decrease in accounts payable
and accrued liabilities in the nine months ended September 30, 2009 due to
the timing and amount of vendor payments and (3) an increase in accounts receivable-trade
(refer to Managements Discussion and Analysis of Operations - Liquidity and
Capital Resources - Future Liquidity for more information concerning this
increase).
Cash Flows From Investing
Activities
.
Cash used in investing activities was approximately $7.2 million for the
nine months ended September 30, 2009 due to capital expenditures of $14.5
million related to the facility expansion projects at the D. Ray James Prison,
as well as certain infrastructure work at our Hudson, Colorado facility, offset
by insurance proceeds of $2.6 million (related to damages sustained at the Reid
Community Residential Facility during Hurricane Ike in September 2008 and
damages sustained at our disaster recovery site in 2009). Additionally, we had
net withdrawals from the restricted debt payment account of $4.6 million.
Cash used in
investing activities was approximately $54.5 million for the nine months ended September 30,
2008 due to capital expenditures of $59.3 million related primarily to the
expansion projects at the D. Ray James Prison and the Great Plains Correctional
Facility. These payments were partially
offset by net withdrawals from the restricted debt payment account of $3.7
million and proceeds of $0.8 million from the sale of certain property. Additionally, we had sales of investment
securities of $0.3 million.
Cash Flows From Financing
Activities
.
Cash used in financing activities was approximately $14.1 million for the
nine months ended September 30, 2009 due primarily to MCFs annual bond
principal payment of $12.4 million in July 2009. Additionally, we had borrowings of $2.0
million and payments of $4.0 million on our Amended Credit Facility, and
proceeds of $0.3 million from the exercise of stock options and employee stock
purchase plan contributions.
Cash provided
by financing activities was approximately $32.3 million for the nine months
ended September 30, 2008 due primarily to borrowings on our Amended Credit
Facility of $43.0 million and proceeds from the exercise of stock options of
$0.6 million. These were partially
offset by MCFs annual principal payment of $11.4 million in July 2008.
Treasury Stock Repurchases.
We did not purchase any of our common stock
in the nine months ended September 30, 2009 and 2008.
Long-Term Credit Facilities.
Our Amended
Credit Facility provides for borrowings
up to $100.0 million (including letters of credit) and matures in December 2011.
At our election, outstanding borrowings bear interest, at either the LIBOR rate
plus a margin ranging from 1.50% to 2.25% or a rate which ranges from 0.00% to
0.75% above the applicable prime rate.
The applicable margins are subject to adjustments based on our total
leverage ratio.
The
available commitment under our Amended Credit Facility was
34
Table of Contents
approximately $12.1
million at September 30, 2009. We
had outstanding borrowings under our Amended Credit Facility of $73.0 million
and we had outstanding letters of credit of approximately $14.9 million at September 30,
2009. Subject to certain requirements,
we have the right to increase the commitments under our Amended Credit Facility
up to $150.0 million, although the indenture for our Senior Notes limits our
ability, subject to certain conditions, to expand the Amended Credit Facility
beyond $100.0 million. We can provide no
assurance that all of the banks that have made commitments to us under our
Amended Credit Facility would be willing to participate in an expansion to the
Amended Credit Facility should we desire to do so. The Amended Credit Facility
is
collateralized by substantially all of our assets, including the assets and
stock of all of our subsidiaries. The Amended Credit Facility is not secured by
the assets of MCF, a special purpose entity.
Our Amended Credit
Facility contains financial and other restrictive covenants that limit our
ability to engage in certain activities.
Our ability to borrow under the Amended Credit Facility is subject to
compliance with certain financial covenants, including bank leverage, total
leverage and fixed charge coverage ratios. At September 30, 2009, we were
in compliance with all such covenants. Our Amended Credit Facility includes
other restrictions that, among other things, limit our ability to incur
indebtedness; grant liens; engage in mergers, consolidations and liquidations;
make investments, restricted payment and asset dispositions; enter into
transactions with affiliates; and engage in sale/leaseback transactions.
MCF is obligated for the outstanding balance of its 8.47% Taxable
Revenue Bonds, Series 2001. The
bonds bear interest at a rate of 8.47% per annum and are payable in semi-annual
installments of interest and annual installments of principal. All unpaid principal and accrued interest on
the bonds is due on the earlier of August 1, 2016 (maturity) or as noted
under the bond documents.
The bonds are limited, nonrecourse obligations of MCF and secured
by the property and equipment, bond reserves, assignment of subleases and
substantially all assets related to the facilities included in the 2001 Sale
and Leaseback Transaction (in which we sold eleven facilities to MCF). The bonds are not guaranteed by Cornell.
In June 2004, we issued $112.0 million in principal of
10.75% Senior Notes the (Senior Notes) due July 1, 2012. The Senior Notes are unsecured senior
indebtedness and are guaranteed by all of our existing and future subsidiaries
(collectively, the Guarantors). The
Senior Notes are not guaranteed by MCF (the Non-Guarantor). Interest on the Senior Notes is payable
semi-annually on January 1 and July 1 of each year, commencing January 1,
2005. On or after July 1, 2008, we
may redeem all or a portion of the Senior Notes at the redemption prices
(expressed as a percentage of the principal amount) listed below, plus accrued
and unpaid interest, if any, on the Senior Notes redeemed, to the applicable
date of redemption, if redeemed during the 12-month period commencing on July 1
of each of the years indicated below:
Year
|
|
Percentages
|
|
|
|
|
|
2008
|
|
105.375
|
%
|
2009
|
|
102.688
|
%
|
2010 and
thereafter
|
|
100.000
|
%
|
Upon the occurrence of
specified change of control events, unless we have exercised our option to
redeem all the Senior Notes as described above, each holder will have the right
to require us to repurchase all or a portion of such holders Senior Notes at a
purchase price in cash equal to 101% of the aggregate principal amount of the
notes repurchased plus accrued and unpaid interest, if any, on the Senior Notes
repurchased, to the applicable date of purchase. The Senior Notes were issued under an
indenture which limits our ability and the ability of our Guarantors to, among
other things, incur additional indebtedness, pay dividends or make other
distributions, make other restricted payments and investments, create liens,
incur restrictions on the ability of the Guarantors to pay dividends or other
payments to us, enter into transactions with affiliates, and engage in mergers,
consolidations and certain sales of assets.
Future Liquidity
Our shelf registration
statement under Form S-3 for potential offerings from time to time of up
to $75.0 million in gross proceeds of debt securities, common stock, preferred
stock, warrants or certain other securities was declared effective by the
Securities and Exchange Commission in September 2008.
We expect to use existing
cash balances, internally generated cash flows and borrowings from our Amended
Credit Facility to fulfill anticipated obligations such as capital
expenditures, working-capital needs and scheduled debt maturities over at least
the next twelve months. As of September 30, 2009, we had
approximately $12.1 million of available capacity under our Amended Credit
Facility. We will continue to analyze our capital structure, including a
potential refinancing of our Senior Notes and financing for our expected future
capital expenditures, including any potential acquisitions. We will
consider potential acquisitions from time to time. Our principal focus
for acquisitions is anticipated to be in our Adult Secure and Adult
Community-Based divisions, although we
35
Table of Contents
would also consider
attractively priced acquisitions in our Abraxas Youth and Family Services
division. We may decide to use internally generated funds, bank
financing, equity issuances, debt issuances or a combination of any of the
foregoing to finance our future capital needs. We may also seek, from time to
time, to retire or purchase some of our common stock and/or outstanding debt
through cash purchases in open market purchases, privately negotiated
transactions or otherwise. Such repurchases, if any, will depend on prevailing
market conditions, our liquidity requirements, contractual restrictions and
other factors. In September 2009 we adopted a stock repurchase plan under rule 10b5-1
of the Securities Exchange Act of 1934 (the Company 10b5-1 Plan) to
facilitate the repurchase of our common stock pursuant to the stock repurchase
program authorized by our Board of Directors in July 2009. The Company
10b5-1 Plan, which provides for up to $10.0 million in purchases, will be in
effect through December 2010, subject to certain price, volume and timing
constraints as specified in the Company 10b5-1 Plan. At September 30,
2009, we believe we have sufficient liquidity necessary to complete those
projects for which we have outstanding commitments.
Our internally generated
cash flow is directly related to our business. Should the private corrections
and juvenile businesses deteriorate, or should we experience poor results in
our operations, cash flow from operations may be reduced. We have, however,
continued to generate positive cash flow from operating activities over recent
years and expect that cash flow will continue to be positive over the next
year. Our access to debt and equity markets may be reduced or closed to us due
to a variety of events, including, among others, industry conditions, general
economic conditions, market conditions, credit rating agency downgrades of our
debt and/or market perceptions of us and our industry. The volatility
seen in the financial markets beginning in the third quarter of 2008 has
continued into the third quarter of 2009 and is expected to be present (at some
level) for the near term. Such volatility could result in decreased
availability of capital at economical terms (or at various times) and could
also put additional financial and budgetary pressure on our customers.
Such conditions could potentially result in our inability to pursue additional
future growth opportunities (such as facility expansions or new facility
construction) and, if coupled with unexpected client, operational or other
issues affecting our cash flow, in a need to seek additional financing at terms
we would otherwise not accept.
In addition, our accounts
receivable are with federal, state, county and local government agencies, which
we believe generally reduces our credit risk. However, it is possible
that situations such as continuing budget resolutions, delayed passage of
budgets or budget pressures may increase the length of repayment of certain of
these receivables. For example, during 2009 the State of California notified
vendors providing services to the state that it would temporarily issue IOUs.
We received IOUs from the State of California which were subsequently paid in
full during the third quarter of 2009. We do not currently hold any IOUs from
the State of California. In addition, delays in the passage of budgets (such as
experienced in the State of Pennsylvania in 2009) may lead to temporary delays
in the repayment of our receivables from operations in such states. This would
lead to a temporary increase in our receivables, as evidenced by the increase
in our accounts receivable-trade at September 30, 2009. As the State of
Pennsylvania did not pass a fiscal 2010 budget until mid-October 2009, the
majority of the cities and counties in Pennsylvania chose to defer their
payments (during the state budget impasse present through the third quarter of
2009) until the state budget had been adopted. While we will closely monitor
such situations, we do not currently expect this to have a significant negative
impact on the repayment of our receivables related to our facilities in such
locations.
36
Table of Contents
Results of Operations
The following table sets forth for the periods indicated the
percentages of revenue represented by certain items in our historical
consolidated statements of operations.
|
|
Three Months Ended
|
|
Nine Months Ended
|
|
|
|
September 30,
|
|
September 30,
|
|
|
|
2009
|
|
2008
|
|
2009
|
|
2008
|
|
|
|
|
|
|
|
|
|
|
|
Revenues
|
|
100.0
|
%
|
100.0
|
%
|
100.0
|
%
|
100.0
|
%
|
Operating
expenses, excluding depreciation and amortization
|
|
72.1
|
|
74.9
|
|
72.1
|
|
73.5
|
|
Depreciation
and amortization
|
|
4.3
|
|
4.7
|
|
4.6
|
|
4.5
|
|
General and
administrative expenses
|
|
5.6
|
|
5.7
|
|
5.9
|
|
6.7
|
|
Income from
operations
|
|
18.0
|
|
14.7
|
|
17.4
|
|
15.3
|
|
Interest
expense, net
|
|
6.2
|
|
6.0
|
|
6.1
|
|
6.2
|
|
Income before
provision for income taxes
|
|
11.8
|
|
8.7
|
|
11.3
|
|
9.1
|
|
Provision for
income taxes
|
|
4.8
|
|
3.5
|
|
4.7
|
|
3.9
|
|
Net income
|
|
7.0
|
|
5.2
|
|
6.6
|
|
5.2
|
|
Non-controlling
interest
|
|
0.5
|
|
0.1
|
|
0.4
|
|
|
|
Income
available to stockholders
|
|
6.5
|
%
|
5.1
|
%
|
6.2
|
%
|
5.2
|
%
|
Three Months Ended September 30,
2009 Compared to Three Months Ended September 30, 2008
Revenues
.
Revenues increased approximately $8.1 million, or 8.5%, to $103.3
million for the three months ended September 30, 2009 from $95.2 million
for the three months ended September 30, 2008.
Adult Secure
Services.
Adult
Secure Services revenues increased approximately $6.2 million, or 12.0%, to $57.7
million for the three months ended September 30, 2009 from $51.5 million
for the three months ended September 30, 2008 due primarily to (1) an
increase in revenues of $4.1 million at the Great Plains Correctional Facility
due to increased occupancy as a result of a facility expansion completed in September 2008,
(2) an increase in revenues of $1.1 million at the RCC due to improved
occupancy and (3) an increase in revenues of $0.7 million at the Walnut
Grove Youth Correctional Facility due to a facility expansion completed in the
third quarter of 2008. The remaining net
increase in revenues of $0.3 million was due to various insignificant fluctuations
in revenues at our other Adult Secure Services facilities.
At September
30, 2009, we operated ten Adult Secure Services
facilities with an aggregate service capacity of 13,541. Average contract occupancy was 86.5% for the
three months ended September 30, 2009 compared to 89.9% for the three
months ended September 30, 2008. The decrease in the average contract
occupancy is primarily due to (1) the additional capacity brought into
operations in September 2008 at Walnut Grove, which we began ramping
during the fourth quarter of 2008, (2) under-utilization at certain
California facilities and (3) the activation of the second expansion at
the D. Ray James Prison in April 2009. The average per diem rate for our
Adult Secure Services facilities was approximately $53.72 and $53.12 for the
three months ended September 30, 2009 and 2008, respectively.
Abraxas Youth and
Family Services.
Abraxas Youth and
Family Services revenues increased approximately $0.5 million, or 1.9%, to $26.7
million for the three months ended September 30, 2009 from $26.2 million
for the three months ended September 30, 2008 due primarily to (1)
an increase in revenues of $1.0 million
at the Cornell Abraxas 1 facility (A-1) due to improved occupancy, (2) an
increase in revenues of $0.7 million at the Texas Adolescent Treatment Center (TATC)
due to improved occupancy and (3) an increase in revenues of $0.6 million
at the Hector Garza Residential Treatment Center due to improved
occupancy. The increase in revenues due
to the above was offset, in part, by a decrease in revenues of $0.8 million due
to the termination of our management contract for the Salt Lake Valley
Detention Center as of September 2008.
The remaining net decrease in revenues of $1.0 million was due to
various immaterial fluctuations in revenues at our other Abraxas Youth and
Family Services facilities and programs.
At September 30,
2009, we operated 17 residential
Abraxas Youth and
Family Services
facilities and 10 non-residential
Abraxas Youth and
Family Services
community-based programs with an aggregate service capacity of 3,096.
Additionally, we had one facility that was vacant at September 30, 2009
with a service capacity of 70 beds.
Average contract occupancy for the three months ended September 30,
2009 was 87.4% compared to 74.6% for the three months ended September 30,
2008. The increase in the average
contract occupancy in 2009 was due to increased occupancy/higher utilization at
such facilities as TATC, A-1 and the Hector Garza Residential Treatment Center.
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Table of Contents
The average per diem rate
for our residential
Abraxas Youth and Family Services
facilities was approximately $195.74 for
the three months ended September 30, 2009 compared to $193.89 for the
three months ended September 30, 2008.
Our average fee-for-service rate for our non-residential
Abraxas
Youth and Family Services
community-based facilities and programs was approximately $45.91 for the
three months ended September 30, 2009 compared to $45.32 for the three
months ended September 30, 2008. Our average fee-for-service rate can
fluctuate from period-to-period depending on the mix of services provided at
our various
Abraxas Youth and Family Services
facilities and programs.
Adult Community-Based
Services.
Adult
Community-Based Services revenues increased approximately $1.4 million, or
8.0%, to $18.9 million for the three months ended September 30, 2009 from $17.5
million for the three months ended September 30, 2008 due to various
immaterial fluctuations in revenues spread across our Adult Community-Based
Services facilities and programs.
At September 30, 2009, we operated 28 residential Adult
Community-Based Services facilities and three non-residential Adult
Community-Based Services programs with an aggregate service capacity of
3,960. Average contract occupancy was 113.6%
for the three months ended September 30, 2009 compared to 99.6% for the three
months ended September 30, 2008.
The average per di
em rate for our residential Adult Community-Based Services facilities
was approximately $66.47 for the three months ended September 30, 2009
compared to $68.46 for the three months ended September 30, 2008. The average fee-for-service rate for our
non-residential Adult Community-Based Services programs was approximately
$12.22 for the three months ended September 30, 2009 compared to $11.90
for the three months ended September 30, 2008. Our average fee-for-service
rates fluctuate as a result of changes in the mix of services provided by our
various Adult Community-Based Services programs and facilities.
Operating Expenses
.
Operating expenses, excluding depreciation and amortization, increased
approximately $3.2 million, or 4.5%, to $74.4 million for the three months
ended September 30, 2009 from $71.2 million for the three months ended September 30,
2008.
Adult Secure
Services.
Adult
Secure Services operating expenses increased approximately $3.8 million, or
10.9%, to $38.7 million for the three months ended September 30, 2009 from
$34.9 million for the three months ended September 30, 2008 due primarily
to (1)
an
increase in operating expenses of $2.2 million at the Great Plains Correctional
Facility due to increased occupancy as a result of a facility expansion
completed in September 2008 and (2) an increase in operating expenses
of $0.7 million at RCC due to increased occupancy. The remaining net increase
in operating expenses of approximately $0.9 million was due to various
immaterial fluctuations in operating expenses at our other Adult Secure
Services facilities as well as a decrease in divisional operating expenses in
the 2009 period.
As a percentage of
segment revenues, Adult Secure Services operating expenses were 67.2% for the
three months ended September 30, 2009 compared to 67.8% for the three
months ended September 30, 2008.
Abraxas Youth and
Family Services.
Abraxas Youth and
Family Services division operating expenses decreased approximately $0.1
million, or 0.4%, to $23.7 million for the three months ended September 30,
2009 from $23.8 million for the three months ended September 30, 2008 due
primarily to a decrease in operating expense of $1.0 million due to the
termination of our management contract for the Salt Lake Valley Detention
Center as of September 2008. This
decrease was offset, in part, by (1) an increase in operating expenses of
$0.6 million at the Hector Garza Residential Treatment Center due to improved
occupancy and (2) an increase in operating expenses of $0.4 million at
TATC due to increased occupancy.
The remaining net decrease in operating expenses of
approximately $0.1 million was due to various immaterial fluctuations in
operating expenses at our other Abraxas Youth and Family Services facilities
and programs.
As a percentage of segment revenues, Abraxas Youth and Family
Services operating expenses were 88.7% for the three months ended September 30,
2009 compared to 90.8% for the three months ended September 30, 2008. The reduction in the operating expense ratio
in 2009 was principally due to the increased utilization at those facilities
noted.
Adult Community-Based
Services.
Adult Community-Based Services operating
expenses decreased approximately $0.5 million, or 4.0%, to $12.0 million for
the three months ended September 30, 2009 from $12.5 million for the three
months ended September 30, 2008.
The decrease in operating expenses was due primarily to a gain of $0.2
million related to final insurance recoveries in excess of property carrying
values at the Reid Community Residential Facility damaged in Hurricane Ike in September 2008.
This gain is reflected in operating expenses for the three months ended September 30,
2009. The remaining decrease in
operating expenses of approximately $0.3 million was due to immaterial
fluctuations in operating expenses at our various Adult Community-Based
Services facilities and programs between the two periods.
As a percentage of segment revenues, Adult Community-Based
Services operating expenses were 63.5% for the three months ended September 30,
2009 compared to 71.5% for the three months ended September 30, 2008. The
improvement in the operating
38
Table of Contents
margin was primarily due to the increased utilization across the
various facilities and programs during the period as well as the gain on
insurance recovery recognized in the three months ended September 30, 2009
as discussed above.
Depreciation and Amortization
.
Depreciation
and amortization expense was approximately $4.5 million and $4.5 million for
the three months ended September 30, 2009 and 2008, respectively. Depreciation expense increased approximately
$0.4 million primarily due to the facility expansions at the Great Plains
Correctional Facility and the D. Ray James Prison. Amortization of intangibles was approximately
$0.1 million and $0.5 million for the three months ended September 30,
2009 and 2008, respectively.
General and Administrative
Expenses.
General and administrative expenses
increased approximately $0.3 million, or 5.5%, to $5.8 million for the three
months ended September 30, 2009 compared to $5.5 million for the three
months ended September 30, 2008.
The increase was due primarily to increased stock-based compensation
expense in the three months ended September 30, 2009 as compared to the
same period of 2008.
Interest.
Interest expense, net of interest income, increased to approximately $6.4 million
for the three months ended September 30, 2009 from $5.8 million for the
three months ended September 30, 2008. The increase in net interest
expense was primarily due to a reduction in capitalized interest in the three
months ended September 30, 2009.
Capitalized interest for the three months ended September 30, 2008
was approximately $1.0 million and related to the facility expansion projects
at the Great Plains Correctional Facility and the D. Ray James Prison. There
was no interest capitalized during the three months ended September 30,
2009. This increase in net interest expense was offset by lower interest
expense of approximately $0.3 million on our Amended Credit Facility due to
lower average interest rates in the 2009 period. Additionally, MCF made an annual bond
principal payment of $12.4 million on July 31, 2009 which reduced bond
interest expense for the three months ended September 30, 2009 by
approximately $0.3 million as compared to the same period of 2008.
Income Taxes.
For
the three months ended September 30, 2009, we recognized a provision for
income taxes at an estimated effective rate of 41.0%. For the three months ended September 30,
2008, we recognized a provision for income taxes at an estimated effective rate
of 40.7%. The change in our estimated
effective tax rate in 2009 was related to an increase in operating income
across certain of our business segments, the decreased impact of certain
non-deductible expenses and the utilization of various tax credits.
Nine Months Ended September 30,
2009 Compared to Nine Months Ended September 30, 2008
Revenues
.
Revenues increased approximately $23.1
million, or 8.1%, to $308.3 million for the nine months ended September 30,
2009 from $285.2 million for the nine months ended September 30, 2008.
Adult Secure
Services.
Adult
Secure Services revenues increased approximately $22.1 million, or 14.6%, to $173.8
million for the nine months ended September 30, 2009 from $151.7 million
for the nine months ended September 30, 2008 due primarily to (1)
an increase in revenues of approximately
$14.3 million at the Great Plains Correctional Facility due to increased
occupancy as a result of a facility expansion completed in September 2008,
(2) an increase in revenues of $3.5 million at RCC due to improved
occupancy, (3) an increase in revenues of $2.3 million at Walnut Grove due
to a facility expansion completed in the third quarter of 2008, and (4) an
increase in revenues of $1.4 million at the Big Spring Correctional Center due
to increased occupancy. The increase in
revenues due to the above was offset, in part, by a decrease in revenues of
$0.9 million at the Mesa Verde Community Correctional Center due to a decrease
in occupancy. The remaining net increase
in revenues of approximately $1.5 million was due to various insignificant
fluctuations in revenues at our other Adult Secure Services facilities.
Average contract
occupancy for the nine months ended September 30, 2009 was 88.5% compared
to 92.5% for the nine months ended September 30, 2008. The average per diem rate for our Adult
Secure Services facilities was approximately $54.25 and $54.00 for the nine
months ended September 30, 2009 and 2008, respectively. The decrease in
the average contract occupancy is primarily due to (1) the additional
capacity brought into operations in September 2008 at Walnut Grove, which
we began ramping during the fourth quarter of 2008, (2) under-utilization
at certain California facilities and (3) the activation of the second
expansion at D. Ray James Prison in April 2009.
Abraxas Youth and
Family Services.
Abraxas Youth and
Family Services revenues decreased approximately $0.8 million, or 1.0%, to $80.1
million for the nine months ended September 30, 2009 from $80.9 million
for the nine months ended September 30, 2008 due to
(1) a decrease in revenues of $2.7
million due to the termination of our management contract for the Salt Lake
Valley Detention Center as of September 2008, (2) a decrease in
revenues of $1.2 million due to the termination of our management contract for the
Reading Alternative Education School Program as of June 2008 and
(3) a decrease in revenues of $0.6 million due to the termination of our
management contract for the State Reintegration Program as of June 30,
2009. The decrease in revenues due to
the above was offset by (1) an increase in revenues of $1.0 million at the
Abraxas Academy due to increased occupancy, (2) an increase in revenues of
$1.7 million at TATC due to improved occupancy, (3) an increase in
revenues of $1.0 million at the Hector Garza Residential Treatment Center due
to increased occupancy and (4) an increase in revenues of $1.0 million at
A-1 due to improved occupancy. The remaining
39
Table of Contents
net decrease in revenues
of $1.0 million was due to various insignificant fluctuations at our other
Abraxas Youth and Family Services facilities and programs.
Average contract
occupancy was 86.9% and 80.5% for the nine months ended September 30, 2009
and 2008, respectively. The increase in the 2009 average contract occupancy was
primarily a result of higher utilization of the Hector Garza Residential
Treatment Center, the Abraxas Academy and TATC facilities. The average per diem rate for our residential
Abraxas Youth and Family Services facilities was approximately $195.88 and
$191.03 for the nine months ended September 30, 2009 and 2008,
respectively. The increase in the 2009 average per diem rate reflects the continued
ramp-up of the Abraxas Academy, increased utilization at A-1 and our San
Antonio facilities, as well as changes in the mix of services provided at other
facilities. The average fee-for-service rate for our non-residential Abraxas
Youth and Family Services community-based facilities and programs was
approximately $45.36 and $47.85 for the nine months ended September 30,
2009 and 2008, respectively. The decrease in the average fee-for-service rate
for 2009 was due to changes in the mix of services provided by our various
non-residential Abraxas Youth and Family Services facilities and programs.
Adult Community-Based
Services.
Adult Community-Based Services revenues increased
approximately $1.7 million, or 3.2%, to $54.4 million for the nine months ended
September 30, 2009 from $52.7 million for the nine months ended September 30,
2008 due to various immaterial fluctuations in revenues among our various Adult
Community-Based Services facilities and programs.
Average contract
occupancy was 109.4% and 100.4% for the nine months ended September 30,
2009 and 2008. The average per diem rate
for our residential Adult Community-Based Services facilities was $66.97 and
$66.44 for the nine months ended September 30, 2009 and 2008,
respectively. The average fee-for-service
rate for our non-residential Adult Community-Based Services programs was $9.93
and $13.71 for the nine months ended September 30, 2009 and 2008,
respectively. The decrease in the average fee-for-service rate for 2009 was due
to changes in the mix of services provided by our various non-residential Adult
Community-Based Services facilities and programs.
Operating Expenses.
Operating expenses, excluding depreciation and amortization, increased
approximately $12.3 million, or 5.9%, to $222.0 million for the nine months
ended September 30, 2009 from $209.7 million for the nine months ended September 30,
2008.
Adult Secure
Services.
Adult
Secure Services operating expenses increased approximately $14.9 million, or
15.0%, to $114.3 million for the nine months ended September 30, 2009 from
$99.4 million for the nine months ended September 30, 2008 due to (1) an
increase in operating expenses of $6.7 million at the Great Plains Correctional
Facility due to increased occupancy as a result of a facility expansion
completed in September 2008, (2) an increase in operating expenses of
$1.2 million at the D. Ray James Prison due to increased occupancy as a result
of facility expansions completed in February 2008 and April 2009, (3) an
increase in operating expenses of $2.5 million at the Big Spring Correctional
Center due to improved occupancy, (4) an increase in operating expenses of
$1.1 million at Walnut Grove due to increased occupancy as a result of a
facility expansion completed in third quarter of 2008 and (5) an increase
in operating expenses of $1.5 million at RCC due to improved occupancy.
The remaining net increase in operating
expenses of $1.9 million was due to various insignificant fluctuations in
operating expenses at our other Adult Secure Services facilities as well as an
increase in divisional operating expenses of approximately $1.0 million in the
2009 period.
As a percentage of segment revenues, Adult Secure Services operating
expenses were 65.8% for the nine months ended September 30, 2009 compared
to 65.5% for the nine months ended September 30, 2008. The 2008 operating
margin was favorably impacted by a $1.5 million contract-based revenue
adjustment at the RCC for the contract year ended March 2008 (which we
recognized in March 2008).
Abraxas Youth and
Family Services.
Abraxas Youth and
Family Services operating expenses decreased approximately $1.2 million, or
1.6%, to $71.7 million for the nine months ended September 30, 2009 from $72.9
million for the nine months ended September 30, 2008 due primarily to (1) a
decrease in operating expenses of $2.8 million due to the termination of our
management contract for the Salt Lake Valley Detention Center as of September 2008
and (2) a decrease in operating expenses of $0.9 million due to the termination
of our management contract for the Reading Alternative Education School Program
as of June 2008. The decrease in operating expenses due to the above was
offset, in part, by (1) an increase in operating expenses of $1.3 million
at the Abraxas Academy due to improved occupancy, (2) an increase in
operating expenses of $1.6 million at the Hector Garza Residential Treatment
Center due to improved occupancy and (3) an increase in operating expenses
of $1.2 million at TATC due to improved occupancy. T
he remaining net decrease in operating expenses of
approximately $1.6 million was due to various immaterial fluctuations in
operating expenses at our other Abraxas Youth and Family Services facilities
and programs.
As a percentage of segment revenues, Abraxas Youth and Family
Services operating expenses were 89.5% and 90.1% for the nine months ended September 30,
2009 and 2008, respectively.
40
Table of Contents
Adult Community-Based
Services.
Adult Community-Based Services operating
expenses decreased approximately $1.4 million, or 3.7%, to $36.0 million for
the nine months ended September 30, 2009 from $37.4 million for the nine
months ended September 30, 2008 due
to (1) a decrease in operating expenses of $0.6
million due to the termination of our management contract for the Lincoln
County Detention Center in May 2008 and (2) a decrease in operating
expenses of $0.5 million due to the termination of our management contracts for
several county jails in California.
Additionally, we recorded a gain of $0.6 million related to insurance
recoveries in excess of property carrying values at the Reid Community
Residential Facility damaged in Hurricane Ike in September 2008. This gain is reflected in operating expenses
for the nine months ended September 30, 2009. The remaining net increase in operating
expenses of $0.9 million was due to immaterial fluctuations in operating
expenses at our other Adult Community-Based Services facilities and programs.
As a percentage of segment revenues, Adult Community-Based Services operating
expenses were 66.2% for the nine months ended September 30, 2009 compared
to 71.0% for the nine months ended September 30, 2008.
Impairment
of Long-Lived Assets.
We evaluate the realization of
our long-lived assets at least annually or when changes in circumstances or a
specific triggering event indicates that the carrying value of the asset may
not be recoverable. As part of our
evaluation, we make judgments regarding such factors as estimated market values
and the potential future operating results and undiscounted cash flows
associated with individual facilities or assets. Additionally, should we decide to sell a
facility or other such asset, realization is evaluated based on the estimated
sales price based on the best market information available. In conjunction with our review of certain of
our long-lived assets based on estimated market values associated with these
assets, we determined that our carrying value for a currently vacant site of
land was not fully recoverable and exceeded its fair value and, as a result, we
recorded an impairment charge of $0.3 million in the nine months ended September 30,
2008. This charge is reflected in
general and administrative expenses in the accompanying financial statements
for the 2008 period. We did not have any impairment charges in the nine months
ended September 30, 2009.
Depreciation and Amortization
.
Depreciation and amortization expense was
approximately $14.1 million and $12.8 million for the nine months ended September 30,
2009 and 2008, respectively.
Depreciation of property and equipment increased approximately $1.8
million due primarily to depreciation expense related to the facility
expansions at the Great Plains Correctional Facility and the D. Ray James
Prison. Amortization of intangibles was
approximately $0.9 million and $1.5 million for the nine months ended September 30,
2009 and 2008, respectively.
General and Administrative
Expenses.
General and administrative expenses decreased
approximately $1.0 million, or 5.2%, to approximately $18.2 million for the nine
months ended September 30, 2009 from $19.2 million for the nine months
ended September 30, 2008
due primarily to lower legal and other professional
expenses in the 2009 period.
Interest.
Interest expense, net of interest income, increased to approximately $18.9
million for the nine months ended September 30, 2009 from $17.6 million
for the nine months ended September 30, 2008. The net increase in interest
expense was primarily due to lower capitalized interest in the nine months
ended September 30, 2009 as compared to the same period of 2008. Capitalized interest was approximately $0.7
million in the nine months ended September 30, 2009 and related to the 700
bed facility expansion project at the D. Ray James Prison. For the nine months ended September 30,
2008, we capitalized interest of approximately $2.3 million related to the
expansion projects at the D. Ray James Prison and the Great Plains Correctional
Facility. Additionally, interest income decreased by approximately $0.8 million
in the 2009 period due to lower investment balances and decreased interest
rates. This increase in net interest expense was offset by lower interest
expense of approximately $0.2 million on our Amended Credit Facility due to
lower average interest rates in the 2009 period. Additionally, MCF made annual bond principal
payments of $11.4 million in July 2008 and $12.4 million on July 31,
2009 which reduced bond interest expense for the nine months ended September 30,
2009 by approximately $0.7 million as compared to the same period of 2008.
Income Taxes.
For
the nine months ended September 30, 2009, we recognized a provision for
income taxes at an estimated effective rate of 41.3%. For the nine months ended September 30,
2008, we recognized a provision for income taxes at an estimated effective rate
of 42.3%. The change in our estimated
effective tax rate in 2009 was related to an increase in operating income
across certain of our business segments, the decreased impact of certain
non-deductible expenses and the utilization of various tax credits.
Contractual Uncertainties Related to Certain Facilities
Regional Correctional Center.
The Office of Federal Detention Trustee (OFDT) holds the contract for
the use of the RCC on behalf of ICE, USMS and the BOP with Bernalillo County,
New Mexico (the County) through an intergovernmental services agreement, and
we have an operating and management agreement with the County. In July 2007, we were notified by ICE
that it was removing all ICE detainees from the RCC and the removal was
completed in early August 2007. The facility is still being utilized
by the USMS, and since May 2008 by the BOP, but not at its full
capacity. In February 2008, ICE
informed us that it would not resume use of the facility. In February 2008, OFDT attempted to
unilaterally amend its agreement with the County to reduce the number of
minimum annual guaranteed mandays under the agreement from 182,500 to
66,300. Neither we nor the County believe OFDT has the
41
Table of Contents
right to unilaterally
amend the contract in this manner, and OFDT has been informed of our position.
Although either party to the intergovernmental services agreement has the right
to terminate upon 180 days notice, neither party has exercised such right as of
September 30, 2009.
During the third quarter 2009, we filed a
claim against the United States, acting through the United States Department of
Justice, OFDT and ICE (collectively Defendants) for breach of contract and
breach of the duty of good faith and fair dealing, arising out of
the Defendants improper modification of the intergovernmental services
agreement (the Contract) and subsequent failure to pay for the shortfalls in
the 2007-2008 and 2008-2009 minimum annual guaranteed mandays specified in the
Contract.
There is a pending
lawsuit against the County concerning the County jail system, known as the McClendon
case. In 1994, plaintiffs sued the County in federal district court in the
District of New Mexico over conditions at the county jail, which was then
located at what is now the Regional Correctional Center and run by the
County. The County subsequently built their new Metropolitan Detention
Center to house the County inmates and also negotiated two stipulated
agreements in 2004 designed to end the McClendon lawsuit. These stipulated settlements covered the
Metropolitan Detention Facility and were approved by the Court in 2005 (the 2005
settlement agreements).
In March 2009, the
Federal Judge presiding over the case issued an Order based on motions filed by
Plaintiffs class counsel asking the Judge to reform the 2005 settlement
agreements to allow for access to the RCC.
In those motions, the Plaintiffs also requested alternative relief in
the form of withdrawal of the Courts approval of the 2005 settlement
agreements. Based on our interpretation
of the Order, the Judge denied Plaintiffs request for access to the RCC,
granted the alternative relief requested, withdrew her approval of the 2005
settlement agreements and granted the option to Plaintiffs to rescind their
2005 settlement agreements. The
Plaintiffs chose to rescind the 2005 settlement agreements. In the Order, the Judge concluded that the
RCC, at least to the extent it is used to house detainees by Bernalillo County
pursuant to the intergovernmental services agreement, is part of the county
jail system. The County has informed us
that it does not believe McClendon should apply to the RCC and the County has
filed an appeal of the Order to the U.S. Court of Appeals for the Tenth
Circuit. We are not a party to this lawsuit and the ramifications of the
Courts Order to our operation of the RCC are unclear.
The 2005 settlement
agreements imposed various conditions on the Metropolitan Detention Center that
resulted in material increases to its operating costs. The effect of the rescission of the 2005
settlement agreements is unclear since those settlement agreements replaced
prior settlement agreements approved in 1996.
We do not believe we are contractually obligated to bear any incremental
costs of complying with any settlement agreements in the McClendon case
although the County has expressed to us that it may want us to absorb a
portion of any costs that would be incurred.
We currently plan to continue to operate the facility and also continue
with our marketing plans for the RCC.
Revenues for this
facility were approximately $10.1 million and $6.6 million (including a $1.5
million contract-based revenue adjustment for the contract year ended March 31,
2008, for which the related receivable is carried in accounts receivable-trade
at September 30, 2009) for the nine months ended September 30, 2009
and 2008, respectively. The net carrying value of the leasehold improvements
for this facility was approximately $0.8 million and $1.1 million at September 30,
2009 and December 31, 2008, respectively. Our lease for this facility
requires monthly rent payments of approximately $0.13 million for the remaining
term of the lease (which was extended through June 2010). To date,
although we have several federal agencies using the RCC, the facility still has
available capacity. Our inability to expand the existing population with
current or new customers or any disruption of our operations due to activity in
the McClendon case could have an adverse effect on our financial condition,
results of operations and cash flows. We believe no impairment to the
carrying value of the leasehold improvements for this facility has occurred.
Hector Garza Residential Treatment Center.
In October 2005, we initiated the
temporary closure of this MCF leased facility in San Antonio, Texas. We
reactivated the facility during the third quarter of 2007. The net carrying
value for this facility was approximately $3.9 and $4.0 million at September 30,
2009 and December 31, 2008, respectively.
We believe that no impairment to the carrying value of this facility has
occurred due to existing (and increasing) demand from current customers
(including the Texas Youth Commission) and anticipated incremental demand from
additional multiple customers to whom the facility is being marketed (including
several current and anticipated requests for proposal).
Realization of long-lived assets
We review our long-lived
assets (including our facilities at a facility-by-facility level) for
impairment at least annually or when changes in circumstances or a triggering
event indicates that the carrying amount of the asset may not be recoverable in
accordance GAAP. GAAP requires that long-lived
assets to be held and used recognize an impairment loss only if the carrying
amount of the long-lived asset is not recoverable from its estimated future
undiscounted cash flows and to measure an impairment loss as the difference
between the carrying value and the fair value of the asset. Assets to be
disposed of by sale are recorded at the lower of their carrying amount or fair
value less estimated selling costs. We estimate projections of undiscounted
cash flows, and also fair value, based upon the best information available,
which may include expected future discounted cash flows to be produced by the
asset
42
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Contents
and/or available market
prices. Factors that significantly influence estimated future cash flows
include the periods and levels of occupancy for the facility, expected per diem
or reimbursement rates, assumptions regarding the levels of staffing, services
and future operating and capital expenditures necessary to generate forecasted
revenues, related costs for these activities and future rate of increases or
decreases associated with these factors. Information typically utilized will
also include relevant terms of existing contracts (for similar services and
customers), market knowledge of customer demand (both present and anticipated)
and related pricing, market competitors, and our historical experience (as to
areas including customer requirements, contract terms, operating
requirements/costs, occupancy trends, etc.). We may also consider the results
of any appraisals if a fair value is necessary. Estimates for factors such as
per diem or reimbursement rates may be highly subjective, particularly in
circumstances where there is no current operating contract in place and changes
in the assumptions and estimates could result in the recognition of impairment
charges.
The most subjective
estimates made in our impairment analysis for 2008 related to Cornell Abraxas 1
and the Hector Garza Residential Treatment Center, particularly with respect to
estimated occupancy. The approximate carrying values at December 31, 2008
for Cornell Abraxas 1 and the Hector Garza Residential Treatment Center were
$10.4 million and $4.0 million, respectively. The estimated undiscounted future
cash flow values exceeded the carrying values noted for the facilities, and all
facilities had operating contracts in place. During 2009, there were no
significant events that caused us to believe that an impairment of these
facilities during the current period had occurred.
We may be required to
record an impairment charge in the future if we are unable to successfully
negotiate a replacement contract on any of our facilities for which we
currently have an operating contract.
Contractual Obligations and
Commercial Commitments
.
We
have assumed various financial obligations and commitments in the ordinary
course of conducting our business. We have contractual obligations requiring
future cash payments under our existing contractual arrangements, such as
management, consultative and non-competition agreements.
We maintain operating leases in the ordinary course of our
business activities. These leases
include those for operating facilities, office space and office and operating
equipment, and the terms of these agreements range from 2008 until 2075. As of September 30, 2009, our total
commitment under these operating leases was approximately $116.6 million.
43
Table of Contents
The following table details our known future cash payments (on an
undiscounted basis) related to various contractual obligations as of September 30,
2009 (in thousands):
|
|
Payments Due by Period
|
|
|
|
|
|
|
|
2010 -
|
|
2012 -
|
|
|
|
|
|
Total
|
|
2009
|
|
2011
|
|
2013
|
|
Thereafter
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Contractual Obligations:
|
|
|
|
|
|
|
|
|
|
|
|
Long-term debt principal
|
|
|
|
|
|
|
|
|
|
|
|
·
Cornell Companies, Inc.
|
|
$
|
112,000
|
|
$
|
|
|
$
|
|
|
$
|
112,000
|
|
$
|
|
|
·
Special Purpose Entity
|
|
121,700
|
|
|
|
28,000
|
|
33,000
|
|
60,700
|
|
Long-term debt interest
|
|
|
|
|
|
|
|
|
|
|
|
·
Cornell Companies, Inc.
|
|
33,110
|
|
3,010
|
|
24,080
|
|
6,020
|
|
|
|
·
Special Purpose Entity
|
|
44,578
|
|
|
|
19,482
|
|
14,534
|
|
10,562
|
|
Revolving line of credit-principal
|
|
|
|
|
|
|
|
|
|
|
|
·
Cornell Companies, Inc.
|
|
73,000
|
|
|
|
73,000
|
|
|
|
|
|
Revolving line of credit-interest
|
|
|
|
|
|
|
|
|
|
|
|
·
Cornell Companies, Inc.
|
|
700
|
|
490
|
|
210
|
|
|
|
|
|
Capital lease obligations
|
|
|
|
|
|
|
|
|
|
|
|
·
Cornell Companies, Inc.
|
|
17
|
|
3
|
|
14
|
|
|
|
|
|
Construction commitments
|
|
3,483
|
|
3,483
|
|
|
|
|
|
|
|
Operating leases
|
|
116,570
|
|
1,850
|
|
25,689
|
|
21,876
|
|
67,155
|
|
Consultative and non-compete agreements
|
|
120
|
|
110
|
|
10
|
|
|
|
|
|
Total contractual cash obligations
|
|
$
|
505,278
|
|
$
|
8,946
|
|
$
|
170,485
|
|
$
|
187,430
|
|
$
|
138,417
|
|
Approximately
$2.8 million of unrecognized tax benefits have been recorded as liabilities as
of September 30, 2009 but are not included in the contractual obligations
table above because we are uncertain as to if or when such amounts may be
settled. Related to the unrecognized tax
benefits not included in the table above, we have also recorded a liability for
potential penalties of approximately $0.1 million and for interest of
approximately $0.1 million as of September 30, 2009.
We enter into letters of
credit in the ordinary course of operating and financing activities. As of September 30, 2009, we had
outstanding letters of credit of approximately $14.9 million primarily for
certain workers compensation insurance and other operating obligations. The following table details our letters of
credit commitments as of September 30, 2009 (in thousands):
|
|
Total
|
|
Amount of Commitment Expiration Per Period
|
|
|
|
Amounts
|
|
Less than
|
|
|
|
|
|
More Than
|
|
|
|
Committed
|
|
1 Year
|
|
1-3 Years
|
|
3-5 Years
|
|
5 Years
|
|
Commercial Commitments:
|
|
|
|
|
|
|
|
|
|
|
|
Standby letters of credit
|
|
$
|
14,949
|
|
$
|
14,199
|
|
$
|
750
|
|
$
|
|
|
$
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
ITEM 3.
Quantitative and Qualitative Disclosures about Market Risk
In the normal
course of business, we are exposed to market risk, primarily from changes in
interest rates. We continually monitor
exposure to market risk and develop appropriate strategies to manage this
risk. We are not exposed to any other
significant market risks, including commodity price risk or, foreign currency
exchange risk or interest rate risks from the use of derivative financial
instruments.
Credit
Risk
Due to the short duration
of our investments, changes in market interest rates would not have a
significant impact on their fair value.
In addition, our accounts receivables are with federal, state, county
and local government agencies, which we believe reduces our credit risk.
However, it is possible that such situations as continuing budget resolutions,
delayed passage of budgets or budget pressures may increase the length of
repayment of certain receivables. During the third quarter of 2009 the State of
California notified vendors providing services to the state that it would
temporarily issue IOUs. We received IOUs from the State of California which
were subsequently repaid prior to September 30, 2009, and we do not
presently hold any IOUs from the State of California. In addition, delays in
the passage of budgets (such as experienced in the State of Pennsylvania in
2009) may lead to temporary delays in
44
Table of Contents
the repayment of our
receivables from operations in such states. This would lead to a temporary
increase in our receivables, as evidenced by the increase in our accounts
receivable-trade at September 30, 2009. As the State of Pennsylvania did
not pass a fiscal 2010 budget until mid-October 2009, the majority of the
cities and counties in Pennsylvania chose to defer their payments (during the
state budget impasse present through the third quarter of 2009) until the state
budget had been adopted. While we closely monitor such situations, we do not
currently expect such this to have a permanent impact on the repayment of our
receivables related to our facilities.
Interest
Rate Exposure
Our exposure to changes in interest rates primarily results from our
Amended Credit Facility, as these borrowings have floating interest rates. The debt on our consolidated financial
statements at September 30, 2009 with fixed interest rates consist of the
8.47% Bonds issued by MCF, a special purpose entity, in August 2001 in
connection with the 2001 Sale and Leaseback Transaction and $112.0 million of Senior
Notes. The detrimental effect of a
hypothetical 100 basis point increase in interest rates on our current
borrowings under our Amended Credit Facility would be to reduce income before
provision for income taxes by approximately $0.5 million for the nine months ended
September 30, 2009. At September 30,
2009, the fair value of our consolidated fixed rate debt was approximately $313.2
million based upon quoted market prices or discounted future cash flows using the
same or similar securities.
Inflation
Other than personnel, offender medical costs at certain facilities, and
employee medical and workers compensation insurance costs, we believe that
inflation has not had a material effect on our results of operations during the
past two years. We have experienced
significant increases in offender medical costs and employee medical and workers
compensation insurance costs, and we have also experienced higher personnel
costs during the past two years. Most of our facility management contracts
provide for payments of either fixed per diem fees or per diem fees that
increase by only small amounts during the term of the contracts. Inflation
could substantially increase our personnel costs (the largest component of our
operating expenses), medical and insurance costs or other operating expenses at
rates faster than any increases in contract revenues. Food costs (part of our resident/inmate care
costs) have also been subject to rising prices in 2008 and 2009. We believe we
have limited our exposure through long-term contracts with fixed term pricing.
45
Table of Contents
ITEM 4.
Controls and Procedures
Evaluation of Disclosure Controls and Procedures
We maintain disclosure
controls and procedures designed to provide reasonable assurance that
information disclosed in our annual and periodic reports is recorded,
processed, summarized and reported within the time periods specified in the Securities
and Exchange Commissions rules and forms. In addition, we designed these
disclosure controls and procedures to ensure that this information is
accumulated and communicated to management, including the chief executive
officer (CEO) and chief financial officer (CFO), to allow timely decisions
regarding required disclosures. SEC rules require that we disclose the
conclusions of our CEO and CFO about the effectiveness of our disclosure
controls and procedures.
We do not expect that our disclosure controls and procedures will
prevent all errors or fraud. A control system, no matter how well conceived and
operated, can provide only reasonable, not absolute, assurance that the
objectives of the control system are met. In addition, the design of disclosure
controls and procedures must reflect the fact that there are resource
constraints, and the benefits of controls must be considered relative to their
costs. Because of the inherent limitation in a cost-effective control system,
misstatements due to error or fraud could occur and not be detected.
Under the supervision and
with the participation of our management, including our principal executive
officer and principal financial officer, and as required by paragraph (b) of
Rules 13a-15 and 15d-15 of the Exchange Act, we have evaluated the
effectiveness of the design and operation of our disclosure controls and
procedures (as defined in Rules 13a-15(e) and 15d-15(e) of the
Exchange Act) as of the end of the period required by this report. Based on
that evaluation, our principal executive officer and principal financial
officer have concluded that these controls and procedures are effective as of
that date.
46
Table of Contents
Changes
in Internal Control over Financial Reporting
In connection with
the evaluation as required by paragraph (d) of Rules 13a-15 and
15d-15 of the Exchange Act, we have not identified any change in our internal
control over financial reporting (as such term is defined in Rules 13a-15(f) and
15d-15(f) under Exchange Act) during our fiscal quarter ended September 30,
2009 that has materially affected, or is reasonably likely to materially
affect, our internal control over financial reporting.
PART II
OTHER INFORMATION
ITEM 1.
Legal Proceedings.
See Part I, Item 1. Note 9 to the Consolidated
Financial Statements, which is incorporated herein by reference.
ITEM 1A.
Risk Factors.
The risk factors as previously disclosed in our Form 10-K
for the fiscal year ended December 31, 2008 are incorporated herein by
this reference. There are no material changes to such risk factors.
ITEM 2.
Unregistered Sales of
Equity Securities and Use of Proceeds.
None.
ITEM 3.
Defaults Upon Senior
Securities.
None.
ITEM 4.
Submission of Matters to a Vote of
Security Holders.
None.
ITEM 5.
Other
Information.
None.
ITEM 6.
Exhibits.
31.1*
|
|
Section 302
Certification of Chief Executive Officer
|
31.2*
|
|
Section 302
Certification of Chief Financial Officer
|
32.1**
|
|
Section 906
Certification of Chief Executive Officer
|
32.2**
|
|
Section 906
Certification of Chief Financial Officer
|
*
|
|
Filed
herewith.
|
**
|
|
Furnished
herewith.
|
47
Table of Contents
SIGNATURES
Pursuant
to the requirements of Section 13 or 15(d) of the Securities Exchange
Act of 1934, the Registrant has duly caused this report to be signed on its
behalf by the undersigned, thereunto duly authorized.
|
|
CORNELL COMPANIES, INC.
|
|
|
|
|
Date: November 6,
2009
|
By:
|
/s/ James
E. Hyman
|
|
|
JAMES
E. HYMAN
|
|
|
Chief
Executive Officer, President and Chairman
|
|
|
of
the Board (Principal Executive Officer)
|
|
|
|
|
|
|
Date: November 6,
2009
|
By:
|
/s/ John
R. Nieser
|
|
|
JOHN
R. NIESER
|
|
|
Senior
Vice President, Chief Financial Officer
|
|
|
and
Treasurer (Principal Financial Officer and
|
|
|
Principal
Accounting Officer)
|
48
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