XNYS:ESI ITT Educational Services, Inc. Quarterly Report 10-Q Filing - 6/30/2012

Effective Date 6/30/2012

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Table of Contents

 

 

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 

 

FORM 10-Q

 

 

(Mark One)

x QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934

For the quarterly period ended June 30, 2012

OR

 

¨ TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934

For the transition period from             to             

Commission file number 1-13144

 

 

ITT EDUCATIONAL SERVICES, INC.

(Exact name of registrant as specified in its charter)

 

 

 

Delaware   36-2061311

(State or other jurisdiction of

incorporation or organization)

 

(I.R.S. Employer

Identification No.)

13000 North Meridian Street

Carmel, Indiana

  46032-1404
(Address of principal executive offices)   (Zip Code)

Registrant’s telephone number, including area code: (317) 706-9200

 

 

Indicate by check mark whether the registrant (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days.

    Yes  x    No  ¨

Indicate by check mark whether the registrant has submitted electronically and posted on its corporate Web site, if any, every Interactive Data File required to be submitted and posted pursuant to Rule 405 of Regulation S-T (§232.405 of this chapter) during the preceding 12 months (or for such shorter period that the registrant was required to submit and post such files).

    Yes  x    No  ¨

Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company. See the definitions of “large accelerated filer,” “accelerated filer” and “smaller reporting company” in Rule 12b-2 of the Exchange Act. (Check one):

 

Large accelerated filer   x    Accelerated filer   ¨
Non-accelerated filer   ¨  (Do not check if a smaller reporting company)    Smaller reporting company   ¨

Indicate by check mark whether the registrant is a shell company (as defined in Rule 12b-2 of the Exchange Act).

    Yes  ¨    No  x

23,319,140

Number of shares of Common Stock, $.01 par value, outstanding at June 30, 2012

 

 

 


Table of Contents

ITT EDUCATIONAL SERVICES, INC.

Carmel, Indiana

Quarterly Report to Securities and Exchange Commission

June 30, 2012

PART I

FINANCIAL INFORMATION

Item 1. Financial Statements.

Index

 

Condensed Consolidated Balance Sheets as of June 30, 2012 and 2011 (unaudited) and December  31, 2011

  

Condensed Consolidated Statements of Income (unaudited) for the three and six months ended June  30, 2012 and 2011

  

Condensed Consolidated Statements of Comprehensive Income (unaudited) for the three and six months ended June 30, 2012 and 2011

  

Condensed Consolidated Statements of Cash Flows (unaudited) for the three and six months ended June  30, 2012 and 2011

  

Condensed Consolidated Statements of Shareholders’ Equity for the six months ended June  30, 2012 and 2011 (unaudited) and the year ended December 31, 2011

  

Notes to Condensed Consolidated Financial Statements

  

 

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ITT EDUCATIONAL SERVICES, INC.

CONDENSED CONSOLIDATED BALANCE SHEETS

(Dollars in thousands, except per share data)

 

     As of  
     June 30,
2012
    December 31,
2011
    June 30,
2011
 
     (unaudited)           (unaudited)  

Assets

      

Current assets:

      

Cash and cash equivalents

   $ 167,234      $ 228,993      $ 158,235   

Short-term investments

     0        148,488        147,136   

Restricted cash

     751        2,128        387   

Accounts receivable, net

     73,675        48,106        47,041   

Deferred income taxes

     16,859        9,759        4,804   

Prepaid expenses and other current assets

     14,571        18,814        24,567   
  

 

 

   

 

 

   

 

 

 

Total current assets

     273,090        456,288        382,170   

Property and equipment, net

     198,175        201,257        198,207   

Deferred income taxes

     36,016        33,267        33,165   

Other assets

     49,360        38,006        45,610   
  

 

 

   

 

 

   

 

 

 

Total assets

   $ 556,641      $ 728,818      $ 659,152   
  

 

 

   

 

 

   

 

 

 

Liabilities and Shareholders’ Equity

      

Current liabilities:

      

Accounts payable

   $ 80,777      $ 78,876      $ 66,008   

Accrued compensation and benefits

     25,711        21,438        23,610   

Other current liabilities

     19,454        18,190        8,421   

Deferred revenue

     121,873        226,543        266,847   
  

 

 

   

 

 

   

 

 

 

Total current liabilities

     247,815        345,047        364,886   

Long-term debt

     150,000        150,000        150,000   

Other liabilities

     74,615        64,972        57,791   
  

 

 

   

 

 

   

 

 

 

Total liabilities

     472,430        560,019        572,677   
  

 

 

   

 

 

   

 

 

 

Shareholders’ equity:

      

Preferred stock, $.01 par value, 5,000,000 shares authorized, none issued

     0        0        0   

Common stock, $.01 par value, 300,000,000 shares authorized, 37,068,904 issued

     371        371        371   

Capital surplus

     198,812        189,573        181,954   

Retained earnings

     925,781        827,675        684,905   

Accumulated other comprehensive (loss)

     (9,147     (9,479     (4,438

Treasury stock, 13,749,764, 10,969,425 and 10,045,948 shares, at cost

     (1,031,606     (839,341     (776,317
  

 

 

   

 

 

   

 

 

 

Total shareholders’ equity

     84,211        168,799        86,475   
  

 

 

   

 

 

   

 

 

 

Total liabilities and shareholders’ equity

   $ 556,641      $ 728,818      $ 659,152   
  

 

 

   

 

 

   

 

 

 

The accompanying notes are an integral part of these condensed consolidated financial statements.

 

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ITT EDUCATIONAL SERVICES, INC.

CONDENSED CONSOLIDATED STATEMENTS OF INCOME

(Amounts in thousands, except per share data)

(unaudited)

 

     Three Months Ended
June 30,
    Six Months Ended
June 30,
 
     2012     2011     2012     2011  

Revenue

   $ 329,825      $ 387,877      $ 671,619      $ 771,048   

Costs and expenses:

        

Cost of educational services

     140,940        142,272        275,881        280,198   

Student services and administrative expenses

     111,467        115,626        217,733        220,209   
  

 

 

   

 

 

   

 

 

   

 

 

 

Total costs and expenses

     252,407        257,898        493,614        500,407   
  

 

 

   

 

 

   

 

 

   

 

 

 

Operating income

     77,418        129,979        178,005        270,641   

Interest income

     502        790        1,183        1,625   

Interest (expense)

     (1,254     (507     (1,801     (1,064
  

 

 

   

 

 

   

 

 

   

 

 

 

Income before provision for income taxes

     76,666        130,262        177,387        271,202   

Provision for income taxes

     30,664        51,262        70,314        106,816   
  

 

 

   

 

 

   

 

 

   

 

 

 

Net income

   $ 46,002      $ 79,000      $ 107,073      $ 164,386   
  

 

 

   

 

 

   

 

 

   

 

 

 

Earnings per share:

        

Basic

   $ 1.97      $ 2.88      $ 4.39      $ 5.81   

Diluted

   $ 1.96      $ 2.85      $ 4.36      $ 5.77   

Weighted average shares outstanding:

        

Basic

     23,390        27,474        24,405        28,275   

Diluted

     23,529        27,719        24,583        28,511   

The accompanying notes are an integral part of these condensed consolidated financial statements.

 

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Table of Contents

ITT EDUCATIONAL SERVICES, INC.

CONDENSED CONSOLIDATED STATEMENTS OF COMPREHENSIVE INCOME

(Dollars in thousands)

(unaudited)

 

     Three Months Ended
June 30,
    Six Months Ended
June 30,
 
     2012     2011     2012     2011  

Net Income

   $ 46,002      $ 79,000      $ 107,073      $ 164,386   

Other comprehensive income, net of tax:

        

Prior service cost amortization, net of income tax of $152, $135, $303 and $270

     (237     (211     (474     (422

Net actuarial pension loss amortization, net of income tax of $259, $186, $531 and $372

     404        290        827        580   

Unrealized gains (losses) on available-for-sale securities, net of income tax of $0, $0, $0 and $0

     2        46        (21     (87
  

 

 

   

 

 

   

 

 

   

 

 

 

Other comprehensive income, net of tax

     169        125        332        71   
  

 

 

   

 

 

   

 

 

   

 

 

 

Comprehensive Income

   $ 46,171      $ 79,125      $ 107,405      $ 164,457   
  

 

 

   

 

 

   

 

 

   

 

 

 

The accompanying notes are an integral part of these condensed consolidated financial statements.

 

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ITT EDUCATIONAL SERVICES, INC.

CONDENSED CONSOLIDATED STATEMENTS OF CASH FLOWS

(Dollars in thousands)

(unaudited)

 

     Three Months Ended
June 30,
    Six Months Ended
June 30,
 
     2012     2011     2012     2011  

Cash flows from operating activities:

        

Net income

   $ 46,002      $ 79,000      $ 107,073      $ 164,386   

Adjustments to reconcile net income to net cash flows from operating activities:

        

Depreciation and amortization

     7,695        7,040        15,115        13,882   

Provision for doubtful accounts

     19,006        17,487        34,607        30,154   

Deferred income taxes

     (6,334     (4,492     (10,076     (7,177

Excess tax benefit from stock option exercises

     (574     (627     (1,379     (978

Stock-based compensation expense

     4,272        4,758        8,755        8,672   

Other

     96        (987     (243     (2,417

Changes in operating assets and liabilities:

        

Restricted cash

     372        1,433        1,377        (132

Accounts receivable

     (38,270     (4,730     (60,176     (8,258

Accounts payable

     3,113        (6,681     1,901        (1,912

Other operating assets and liabilities

     (15,400     (32,886     6,766        24,036   

Deferred revenue

     (58,274     1,307        (104,670     22,485   
  

 

 

   

 

 

   

 

 

   

 

 

 

Net cash flows from operating activities

     (38,296     60,622        (950     242,741   
  

 

 

   

 

 

   

 

 

   

 

 

 

Cash flows from investing activities:

        

Facility expenditures and land purchases

     (253     (1,173     (385     (1,675

Capital expenditures, net

     (7,117     (7,487     (11,635     (12,186

Proceeds from sales and maturities of investments and repayment of notes

     117,216        118,307        216,171        260,392   

Purchase of investments and note advances

     0        (123,104     (63,545     (281,693
  

 

 

   

 

 

   

 

 

   

 

 

 

Net cash flows from investing activities

     109,846        (13,457     140,606        (35,162
  

 

 

   

 

 

   

 

 

   

 

 

 

Cash flows from financing activities:

        

Excess tax benefit from stock option exercises

     574        627        1,379        978   

Proceeds from exercise of stock options

     3,423        1,955        8,091        4,983   

Debt issue costs

     0        0        (1,525     0   

Proceeds from revolving borrowings

     0        0        175,000        0   

Repayment of revolving borrowings

     (25,000     0        (175,000     0   

Repurchase of common stock and shares tendered for taxes

     (61,789     (79,434     (209,360     (219,084
  

 

 

   

 

 

   

 

 

   

 

 

 

Net cash flows from financing activities

     (82,792     (76,852     (201,415     (213,123
  

 

 

   

 

 

   

 

 

   

 

 

 

Net change in cash and cash equivalents

     (11,242     (29,687     (61,759     (5,544

Cash and cash equivalents at beginning of period

     178,476        187,922        228,993        163,779   
  

 

 

   

 

 

   

 

 

   

 

 

 

Cash and cash equivalents at end of period

   $ 167,234      $ 158,235      $ 167,234      $ 158,235   
  

 

 

   

 

 

   

 

 

   

 

 

 

The accompanying notes are an integral part of these condensed consolidated financial statements.

 

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Table of Contents

ITT EDUCATIONAL SERVICES, INC.

CONDENSED CONSOLIDATED STATEMENTS OF SHAREHOLDERS’ EQUITY

(Dollars and shares in thousands)

 

                                Accumulated                    
     Common Stock      Capital      Retained     Other
Comprehensive
    Common Stock in Treasury        
     Shares      Amount      Surplus      Earnings     Income/(Loss)     Shares     Amount     Total  

Balance as of December 31, 2010

     37,069       $ 371       $ 173,935       $ 524,678        ($4,509     (7,076     ($566,405   $ 128,070   
                   

 

 

 

For the six months ended June 30, 2011 (unaudited):

                   

Net income

              164,386              164,386   

Other comprehensive income:

                   

Prior service costs, net of $270 of income tax

                (422         (422

Net actuarial pension loss, net of $372 of income tax

                580            580   

Unrealized (loss)

                (87         (87
                   

 

 

 

Comprehensive income

                      164,457   
                   

 

 

 

Exercise of stock options and equity awards

              (4,160       138        9,143        4,983   

Tax benefit from exercise of stock options and equity award vesting

           989                 989   

Stock-based compensation

           7,030                 7,030   

Common shares repurchased

                  (3,100     (218,520     (218,520

Issuance of shares for Directors’ compensation

              1          1        29        30   

Shares tendered for taxes

                  (9     (564     (564
  

 

 

    

 

 

    

 

 

    

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

Balance as of June 30, 2011

     37,069         371         181,954         684,905        (4,438     (10,046     (776,317     86,475   
                   

 

 

 

For the six months ended December 31, 2011 (unaudited):

                   

Net income

              143,366              143,366   

Other comprehensive income:

                   

Prior service costs, net of $337 of income tax

                (526         (526

Net actuarial pension loss, net of $3,377 of income tax

                (5,276         (5,276

Pension settlement loss, net of $470 of income tax

                734            734   

Unrealized gain

                27            27   
                   

 

 

 

Comprehensive income

                      138,325   
                   

 

 

 

Exercise of stock options and equity awards

              (596       17        1,212        616   

Tax benefit from exercise of stock options and equity award vesting

           201                 201   

Stock-based compensation

           7,418                 7,418   

Common shares repurchased

                  (940     (64,181     (64,181

Shares tendered for taxes

                    (55     (55
  

 

 

    

 

 

    

 

 

    

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

Balance as of December 31, 2011

     37,069         371         189,573         827,675        (9,479     (10,969     (839,341     168,799   
                   

 

 

 

For the six months ended June 30, 2012 (unaudited):

                   

Net income

              107,073              107,073   

Other comprehensive income:

                   

Prior service costs, net of $303 of income tax

                (474         (474

Net actuarial pension loss, net of $531 of income tax

                827            827   

Unrealized (loss)

                (21         (21
                   

 

 

 

Comprehensive income

                      107,405   
                   

 

 

 

Exercise of stock options and equity awards

              (8,966       266        17,057        8,091   

Tax benefit from exercise of stock options and equity award vesting

           930                 930   

Stock-based compensation

           8,309                 8,309   

Common shares repurchased

                  (3,026     (207,918     (207,918

Issuance of shares for Directors’ compensation

              (1       1        38        37   

Shares tendered for taxes

                  (22     (1,442     (1,442
  

 

 

    

 

 

    

 

 

    

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

Balance as of June 30, 2012

     37,069       $ 371       $ 198,812       $ 925,781        ($9,147     (13,750     ($1,031,606   $ 84,211   
  

 

 

    

 

 

    

 

 

    

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

The accompanying notes are an integral part of these condensed consolidated financial statements.

 

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Table of Contents

ITT EDUCATIONAL SERVICES, INC.

NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS

June 30, 2012

(Dollars in thousands, except per share data and unless otherwise stated)

1. The Company and Basis of Presentation

We are a leading proprietary provider of postsecondary degree programs in the United States based on revenue and student enrollment. As of June 30, 2012, we were offering master, bachelor and associate degree programs to approximately 66,000 students at ITT Technical Institute and Daniel Webster College locations. In addition, we offered one or more of our online programs to students who are located in 48 states. As of June 30, 2012, we had 149 college locations (including 146 campuses and three learning sites) in 39 states. All of our college locations are authorized by the applicable education authorities of the states in which they operate and are accredited by an accrediting commission recognized by the U.S. Department of Education (“ED”). We have provided career-oriented education programs since 1969 under the “ITT Technical Institute” name and since June 2009 under the “Daniel Webster College” name. Our corporate headquarters are located in Carmel, Indiana.

The accompanying unaudited condensed consolidated financial statements include our wholly-owned subsidiaries’ accounts and have been prepared in accordance with generally accepted accounting principles in the United States of America for interim periods and pursuant to the rules and regulations of the U.S. Securities and Exchange Commission (“SEC”). Certain information and footnote disclosures, including significant accounting policies, normally included in a complete presentation of financial statements prepared in accordance with those principles, rules and regulations have been omitted. The Condensed Consolidated Balance Sheet as of December 31, 2011 was derived from audited financial statements but, as presented in this report, may not include all disclosures required by accounting principles generally accepted in the United States. Arrangements where we may have a variable interest in another party are evaluated in accordance with the provisions of Financial Accounting Standards Board (“FASB”) Accounting Standards Codification (“ASC” or “Codification”) 810, “Consolidation” (“ASC 810”), to determine whether we would be required to include the financial results of the other party in our consolidated financial statements. Based on our most recent evaluation, we were not required to include the financial results of any variable interest entity in our condensed consolidated financial statements. See Note 8 – Variable Interests, for additional discussion of our variable interests.

In the opinion of our management, the financial statements contain all adjustments necessary to fairly state our financial condition and results of operations. The interim financial information should be read in conjunction with the audited consolidated financial statements and notes thereto contained in our Annual Report on Form 10-K as filed with the SEC for the year ended December 31, 2011.

2. New Accounting Guidance

In December 2011, the FASB issued Accounting Standards Update (“ASU”) No. 2011-12, which is included in the Codification under ASC 220, “Comprehensive Income” (“ASC 220”). This update defers the effective date of ASU No. 2011-05 for changes that relate to the presentation of reclassification adjustments out of accumulated other comprehensive income. None of the other requirements in ASU 2011-05 are affected by this update. This guidance became effective for our interim and annual reporting periods beginning January 1, 2012. The adoption of this guidance did not have a material impact on our condensed consolidated financial statements.

Also in December 2011, the FASB issued ASU No. 2011-11, which is included in the Codification under ASC 210, “Balance Sheet” (“ASC 210”). This update provides for enhanced disclosures to help users of financial statements evaluate the effect or potential effect of netting arrangements on an entity’s financial position. This guidance is effective for interim and annual reporting periods beginning January 1, 2013. We have not yet determined the effect that the adoption of this guidance will have on our condensed consolidated financial statements.

In September 2011, the FASB issued ASU No. 2011-08, which is included in the Codification under ASC 350, “Intangibles – Goodwill and Other” (“ASC 350”). This update allows an entity to assess qualitative factors to determine whether it is necessary to perform the two-step quantitative goodwill impairment test. This guidance became effective for our interim and annual reporting periods beginning January 1, 2012. The adoption of this guidance did not have a material impact on our condensed consolidated financial statements.

In June 2011, the FASB issued ASU No. 2011-05, which is included in the Codification under ASC 220. This update requires total comprehensive income, the components of net income and the components of other comprehensive income to be presented either in a single continuous statement or in two separate but consecutive statements. This guidance became effective for our interim and annual reporting periods beginning January 1, 2012. Prior to January 1, 2012, we presented total Comprehensive income and the components of Other comprehensive income in our Condensed Consolidated Statements of Shareholders’ Equity. After December 31, 2011, we present total Comprehensive income and the components of Other comprehensive income in our Condensed Consolidated Statements of Comprehensive Income.

In May 2011, the FASB issued ASU No. 2011-04, which is included in the Codification under ASC 820, “Fair Value Measurements” (“ASC 820”). This update provides guidance and clarification about the application of existing fair value measurements and disclosure requirements. This guidance became effective for our interim and annual reporting periods beginning January 1, 2012. The adoption of this guidance did not have a material impact on our condensed consolidated financial statements.

 

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Table of Contents

3. Fair Value

Fair value for financial reporting is defined as the price that would be received upon the sale of an asset or paid upon the transfer of a liability in an orderly transaction between market participants at the measurement date. The fair value measurement of our financial assets recorded on our Condensed Consolidated Balance Sheets utilized assumptions categorized as observable inputs under the accounting guidance. Observable inputs are assumptions based on independent market data sources.

The following table sets forth information regarding the fair value measurement of our financial assets as of June 30, 2012:

 

            Fair Value Measurements at Reporting Date Using  
            (Level 1)      (Level 2)      (Level 3)  

Description

   As of
June 30, 2012
     Quoted Prices in
Active Markets
for Identical
Assets
     Significant Other
Observable
Inputs
     Significant
Unobservable
Inputs
 

Cash equivalents:

           

Money market funds

   $ 166,267       $ 166,267       $ 0       $ 0   

Other assets:

           

Money market fund

     8,620         8,620         0         0   
  

 

 

    

 

 

    

 

 

    

 

 

 
   $ 174,887       $ 174,887       $ 0       $ 0   
  

 

 

    

 

 

    

 

 

    

 

 

 

We used quoted prices in active markets for identical assets as of the measurement date to value our financial assets that were categorized as Level 1.

The carrying amounts for cash and cash equivalents, restricted cash, accounts receivable, accounts payable, other current liabilities and deferred revenue approximate fair value, because of the immediate or short-term maturity of these financial instruments.

As of June 30, 2012, each of the carrying value and the estimated fair value of the notes receivable included in Other assets on our Condensed Consolidated Balance Sheet was approximately $19,000. We estimated the fair value of the notes receivable by discounting the future cash flows using current rates for similar arrangements. The assumptions used in this estimate are considered unobservable inputs. Fair value measurements that utilize significant unobservable inputs are categorized as Level 3 measurements under the accounting guidance.

As of June 30, 2012, each of the carrying value and the estimated fair value of our long-term debt was approximately $150,000. The fair value of our long-term debt was estimated by discounting the future cash flows using current rates for similar loans with similar characteristics and remaining maturities. We utilized inputs that were observable or were principally derived from observable market data to estimate the fair value of our long-term debt. Fair value measurements that utilize significant other observable inputs are categorized as Level 2 measurements under the accounting guidance.

4. Equity Compensation

The stock-based compensation expense and related income tax benefit recognized in our Condensed Consolidated Statements of Income in the periods indicated were as follows:

 

     Three Months Ended
June 30,
    Six Months Ended
June 30,
 
     2012     2011     2012     2011  

Stock-based compensation expense

   $ 4,272      $ 4,758      $ 8,755      $ 8,672   

Income tax (benefit)

   ($ 1,645   ($ 1,832   ($ 3,371   ($ 3,339

We did not capitalize any stock-based compensation cost in the three or six months ended June 30, 2012 or 2011.

As of June 30, 2012, we estimated that pre-tax compensation expense for unvested stock-based compensation grants in the amount of approximately $30,300, net of estimated forfeitures, will be recognized in future periods. This expense will be recognized over the remaining service period applicable to the grantees which, on a weighted-average basis, is approximately 2.3 years.

 

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The stock options granted, forfeited, exercised and expired in the period indicated were as follows:

 

     Six Months Ended June 30, 2012  
     # of
Shares
    Weighted
Average
Exercise
Price
     Aggregate
Exercise
Price
    Weighted
Average
Remaining
Contractual Term
     Aggregate
Intrinsic
Value (1)
 

Outstanding at beginning of period

     1,765,881      $ 79.24       $ 139,922        

Granted

     156,500      $ 75.16         11,763        

Forfeited

     (6,667   $ 90.45         (603     

Exercised

     (197,965   $ 40.87         (8,091     

Expired

     (1,734   $ 17.25         (30     
  

 

 

      

 

 

      

Outstanding at end of period

     1,716,015      $ 83.31       $ 142,961        3.5       $ 5,875   
  

 

 

   

 

 

    

 

 

   

 

 

    

 

 

 

Exercisable at end of period

     1,358,175      $ 83.12       $ 112,887        2.9       $ 5,875   
  

 

 

   

 

 

    

 

 

   

 

 

    

 

 

 

 

(1) The aggregate intrinsic value of the stock options was calculated by identifying those stock options that had a lower exercise price than the closing market price of our common stock on June 29, 2012 and multiplying the difference between the closing market price of our common stock and the exercise price of each of those stock options by the number of shares subject to those stock options that were outstanding or exercisable, as applicable.

The following table sets forth information regarding the stock options granted and exercised in the periods indicated:

 

     Three Months Ended
June 30,
     Six Months Ended
June 30,
 
     2012      2011      2012      2011  

Shares subject to stock options granted

     0         0         156,500         159,500   

Weighted average grant date fair value per share

   $ 0       $ 0       $ 31.36       $ 28.90   

Shares subject to stock options exercised

     93,911         42,780         197,965         103,310   

Intrinsic value of stock options exercised

   $ 2,299       $ 1,659       $ 4,788       $ 2,570   

Proceeds received from stock options exercised

   $ 3,423       $ 1,955       $ 8,091       $ 4,983   

Tax benefits realized from stock options exercised

   $ 733       $ 638       $ 1,597       $ 989   

The intrinsic value of a stock option is the difference between the fair market value of the stock and the option exercise price.

The fair value of each stock option grant was estimated on the date of grant using the following assumptions:

 

     Three Months
Ended June 30,
   Six Months
Ended June 30,
 
     2012      2011    2012     2011  

Risk-free interest rates

     Not applicable       Not applicable      0.7     1.8

Expected lives (in years)

     Not applicable       Not applicable      4.5        4.7   

Volatility

     Not applicable       Not applicable      51     48

Dividend yield

     Not applicable       Not applicable      None        None   

The following table sets forth the number of restricted stock units (“RSUs”) that were granted, forfeited and vested in the period indicated:

 

     Six Months Ended
June 30, 2012
 
     # of RSUs     Weighted
Average Grant
Date
Fair Value
 

Unvested at beginning of period

     314,006      $ 79.44   

Granted

     272,578      $ 74.20   

Forfeited

     (30,397   $ 75.05   

Vested

     (117,038   $ 82.59   
  

 

 

   

Unvested at end of period

     439,149      $ 75.65   
  

 

 

   

 

 

 

In the six months ended June 30, 2012:

 

   

48,935 RSUs vested and were settled in cash for $3,073; and

 

   

68,103 RSUs vested and were settled in shares of our common stock having a fair market value of $4,536.

 

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5. Stock Repurchases

As of June 30, 2012, approximately 7.8 million shares remained available for repurchase under the share repurchase program (the “Repurchase Program”) authorized by our Board of Directors. The terms of the Repurchase Program provide that we may repurchase shares of our common stock, from time to time depending on market conditions and other considerations, in the open market or through privately negotiated transactions in accordance with Rule 10b-18 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”). Unless earlier terminated by our Board of Directors, the Repurchase Program will expire when we repurchase all shares authorized for repurchase thereunder.

The following table sets forth information regarding the shares of our common stock that we repurchased in the periods indicated:

 

     Three Months Ended
June 30,
     Six Months Ended
June 30,
 
     2012      2011      2012      2011  

Number of shares

     928,500         1,100,000         3,025,700         3,100,000   

Total cost

   $ 61,261       $ 79,423       $ 207,918       $ 218,520   

Average cost per share

   $ 65.98       $ 72.20       $ 68.72       $ 70.49   

6. Debt

We were a party to a Second Amended and Restated Credit Agreement dated as of January 11, 2010, as amended (the “Prior Credit Agreement”), to borrow up to $150,000 under two revolving credit facilities: one in the maximum principal amount of $50,000; and the other in the maximum principal amount of $100,000. The borrowings under each credit facility could have been secured or unsecured at our election, provided that we had not defaulted under the Prior Credit Agreement.

Borrowings under the Prior Credit Agreement bore interest, at our option, at the London Interbank Offered Rate (“LIBOR”) plus an applicable margin or at an alternative base rate, as defined under the Prior Credit Agreement. We paid a facility fee equal to 0.25% per annum on the daily amount of the commitment (whether used or unused) under the Prior Credit Agreement.

On March 21, 2012, we entered into a credit agreement (the “New Credit Agreement”) that provides for a $325,000 senior revolving credit facility (the “Revolver”). The New Credit Agreement also provides that we may seek additional revolving commitments or term loan commitments in an aggregate principal amount not to exceed $125,000. The lenders under the New Credit Agreement are not under any obligation to provide any such additional revolving commitments or term loan commitments. The New Credit Agreement has a maturity date of March 21, 2015.

A portion of the borrowings under the Revolver were used to prepay the entire outstanding indebtedness under the Prior Credit Agreement. The Prior Credit Agreement was also terminated on March 21, 2012. In addition to the prepayment of the outstanding indebtedness under the Prior Credit Agreement, borrowings under the New Credit Agreement will be used for general corporate purposes.

Borrowings under the New Credit Agreement bear interest, at our option, at LIBOR plus an applicable margin or at an alternative base rate, as defined under the New Credit Agreement, plus an applicable margin. The applicable margin for borrowings under the Revolver is determined based on the ratio of our total Indebtedness (as defined in the New Credit Agreement) to EBITDA (as defined in the New Credit Agreement) (the “Leverage Ratio”) as of the end of each fiscal quarter. We also pay a commitment fee on the amount of the unutilized commitments under the New Credit Agreement. The amount of the commitment fee is determined based on the Leverage Ratio as of the end of each fiscal quarter.

The New Credit Agreement contains, among other things, covenants, representations and warranties and events of default customary for credit facilities. The New Credit Agreement is secured by a pledge of the equity interests of our subsidiaries and is guaranteed by one of our subsidiaries. We are required to maintain compliance with a maximum Leverage Ratio, a minimum interest coverage ratio, a minimum liquidity amount and several ratios related to the ED’s regulations. We were in compliance with those requirements as of June 30, 2012.

As of June 30, 2012, the borrowings under the New Credit Agreement totaled $150,000 and bore interest at a weighted average rate of 2.25% per annum. The effective interest rate on our borrowings was approximately 2.70% per annum in the three months ended June 30, 2012 and approximately 1.30% per annum in the three months ended June 30, 2011. In the six months ended June 30, 2012, the effective interest rate on our borrowings was approximately 2.10% per annum compared to approximately 1.40% per annum in the six months ended June 30, 2011. The commitment fee under the New Credit Agreement was 0.30% as of June 30, 2012.

 

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The following table sets forth the interest expense (including the facility fee and commitment fee) that we recognized on our borrowings under the New Credit Agreement and under the Prior Credit Agreement in the periods indicated:

 

    Three Months Ended
June 30,
     Six Months Ended
June 30,
      
  2012    2011      2012      2011     
  $1,115    $ 507       $ 1,662       $ 1,064      

7. Investments

Our available-for-sale investments were classified as short-term investments on our June 30, 2012, December 31, 2011 and June 30, 2011 Condensed Consolidated Balance Sheets. The following table sets forth the aggregate fair value, amortized cost basis and the net unrealized gains and losses included in accumulated other comprehensive income (loss) of our available-for-sale investments as of the dates indicated:

 

     As of:  
     June 30, 2012      December 31, 2011     June 30, 2011  
     Aggregate
Fair Value
     Amortized
Cost
     Net
Unrealized
Gains
(Losses)
     Aggregate
Fair Value
     Amortized
Cost
     Net
Unrealized
Gains
(Losses)
    Aggregate
Fair Value
     Amortized
Cost
     Net
Unrealized
Gains
(Losses)
 
Available- for-Sale Investments:                          

Government obligations

   $ 0       $ 0       $ 0       $ 100,517       $ 100,480       $ 37      $ 100,679       $ 100,664       $ 15   

Government agency obligations

     0         0         0         31,351         31,354         (3     26,235         26,237         (2

Corporate obligations

     0         0         0         16,620         16,633         (13     20,222         20,241         (19
  

 

 

    

 

 

    

 

 

    

 

 

    

 

 

    

 

 

   

 

 

    

 

 

    

 

 

 
   $ 0       $ 0       $ 0       $ 148,488       $ 148,467       $ 21      $ 147,136       $ 147,142         ($6)   
  

 

 

    

 

 

    

 

 

    

 

 

    

 

 

    

 

 

   

 

 

    

 

 

    

 

 

 

The following table sets forth the unrealized gains and losses on available-for-sale investments that were included in other comprehensive income (loss) in the periods indicated:

 

     Three Months Ended
June 30,
     Six Months Ended
June 30,
 
     2012      2011      2012      2011  

Unrealized gains

   $ 2       $ 46       $ 0       $ 0   

Unrealized losses

   $ 0       $ 0         ($21)         ($87)   

The following table sets forth the components of investment income included in Interest income in our Condensed Consolidated Statements of Income in the periods indicated:

 

     Three Months Ended
June 30,
     Six Months Ended
June 30,
 
     2012      2011      2012      2011  

Interest income on investments

   $ 75       $ 116       $ 216       $ 271   

Realized net gains on the sale of investments

     26         51         40         196   
  

 

 

    

 

 

    

 

 

    

 

 

 

Total investment income

   $ 101       $ 167       $ 256       $ 467   
  

 

 

    

 

 

    

 

 

    

 

 

 

8. Variable Interests

On January 20, 2010, we entered into agreements with unrelated third parties to establish the PEAKS Private Student Loan Program (“PEAKS Program”), which is a private education loan program for our students. Under the PEAKS Program, an unaffiliated lender originated private education loans to our eligible students and, subsequently, sold those loans to an unaffiliated trust that purchased, owns and collects private education loans (“PEAKS Trust”). The PEAKS Trust issued senior debt in the aggregate principal amount of $300,000 (“PEAKS Senior Debt”) to investors. The lender disbursed the proceeds of the private education loans to us for application to the students’ account balances with us that represented their unpaid education costs. We transferred a portion of the amount of each private education loan disbursed to us under the PEAKS Program to the PEAKS Trust in exchange for a subordinated note issued by the PEAKS Trust (“Subordinated Note”). No new private education loans were or will be originated under the PEAKS Program after July 2011, but immaterial amounts related to loans originated prior to that date were disbursed by the lender through March 2012.

The Subordinated Note is non-interest bearing and has been recorded net of an unamortized discount based on an imputed interest rate of 9.0% in Other assets on our Condensed Consolidated Balance Sheets. The discount is amortized and recognized in Interest income in our Condensed Consolidated Statements of Income over the term of the Subordinated Note. The maturity date of the Subordinated Note is in March 2026. The face value of the Subordinated Note as of June 30, 2012 was approximately $73,700.

 

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The PEAKS Trust utilized the proceeds from the issuance of the PEAKS Senior Debt and the Subordinated Note to purchase the private education loans made by the lender to our students. The assets of the PEAKS Trust (which include, among other assets, the private education loans owned by the PEAKS Trust) serve as collateral for, and are intended to be the principal source of, the repayment of the PEAKS Senior Debt and the Subordinated Note. The PEAKS Trust is required to maintain assets having an aggregate value that exceeds the outstanding balance of the PEAKS Senior Debt. As of June 30, 2012, the value of the assets of the PEAKS Trust satisfied this requirement. We guarantee payment of the principal, interest and certain call premiums owed on the PEAKS Senior Debt, and the administrative fees and expenses of the PEAKS Trust (“PEAKS Guarantee”). See Note 11 – Contingencies, for further discussion of the PEAKS Guarantee.

We did not explicitly or implicitly provide any financial or other support to the PEAKS Trust during the three or six months ended June 30, 2012 or 2011 that we were not contractually required to provide, and we do not intend to provide any such support to the PEAKS Trust in the foreseeable future, other than what we are contractually required to provide.

The PEAKS Trust is a variable interest entity as defined under ASC 810. We held variable interests in the PEAKS Trust as of June 30, 2012 as a result of the Subordinated Note and PEAKS Guarantee. To determine whether we were the primary beneficiary of the PEAKS Trust, we:

 

   

assessed the risks that the PEAKS Trust was designed to create and pass through to its variable interest holders;

 

   

identified the variable interests in the PEAKS Trust;

 

   

identified the other variable interest holders and their involvement in the activities of the PEAKS Trust;

 

   

identified the activities that most significantly impact the PEAKS Trust’s economic performance;

 

   

determined whether we have the power to direct those activities; and

 

   

determined whether we have the right to receive the benefits from, or the obligation to absorb the losses of, the PEAKS Trust that could potentially be significant to the PEAKS Trust.

We determined that the activities of the PEAKS Trust that most significantly impact the economic performance of the PEAKS Trust involve:

 

   

establishing the underwriting criteria of, and the interest rates and fees charged on, the private education loans acquired by the PEAKS Trust; and

 

   

the servicing (which includes the collection) of the private education loans owned by the PEAKS Trust.

To make that determination, we analyzed various possible scenarios of student loan portfolio performance to evaluate the potential economic impact on the PEAKS Trust. In our analysis, we made what we believe are conservative assumptions based on historical data for the following key variables:

 

   

the composition of the credit profiles of the borrowers;

 

   

the interest rates and fees charged on the loans;

 

   

the default rates and the timing of defaults associated with similar types of loans; and

 

   

the prepayment and the speed of repayment associated with similar types of loans.

Based on our analysis, we concluded that we are not the primary beneficiary of the PEAKS Trust, because we do not have the power to direct the activities that most significantly impact the economic performance of the PEAKS Trust. As a result, we are not required under ASC 810 to include the financial results of the PEAKS Trust in our condensed consolidated financial statements for the three or six months ended June 30, 2012. Our conclusion that we are not the primary beneficiary of the PEAKS Trust did not change from the prior reporting period. Therefore, there was no effect on our condensed consolidated financial statements.

On February 20, 2009, we entered into agreements with an unaffiliated entity (the “2009 Entity”) to create a program that makes private education loans available to our students to help pay the students’ cost of education that student financial aid from federal, state and other sources do not cover (the “2009 Loan Program”). Under the 2009 Loan Program, an unaffiliated lender originated private education loans to our eligible students and, subsequently, sold those loans to the 2009 Entity. The 2009 Entity purchased the private education loans from the lender utilizing funds received from its owners in exchange for participation interests in the private education loans acquired by the 2009 Entity. The lender disbursed the proceeds of the private education loans to us for application to the students’ account balances with us that represent their unpaid education costs. No new private education loans were or will be originated under the 2009 Loan Program after December 31, 2011, but immaterial amounts related to loans originated prior to that date were disbursed by the lender through June 2012.

In connection with the 2009 Loan Program, we entered into a risk sharing agreement (the “2009 RSA”) with the 2009 Entity. Under the 2009 RSA, we guarantee the repayment of any private education loans that are charged off above a certain percentage of the private education loans made under the 2009 Loan Program, based on the annual dollar volume. See Note 11 – Contingencies, for further discussion of the 2009 RSA.

 

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In addition, we have made advances to the 2009 Entity under a revolving promissory note (the “Revolving Note”). We did not make any advances in the three and six months ended June 30, 2012 to the 2009 Entity under the Revolving Note that we were not contractually required to make. In the three and six months ended June 30, 2011, we made advances of $200 to the 2009 Entity under the Revolving Note that we were not contractually required to make. Substantially all of the assets of the 2009 Entity serve as collateral for the Revolving Note. The Revolving Note bears interest, is subject to customary terms and conditions and may be repaid at any time without penalty prior to its 2026 maturity date.

The advances under the Revolving Note were primarily used by the 2009 Entity to purchase additional private education loans under the 2009 Loan Program that otherwise may not have been originated. We have no immediate plans to significantly increase the amount of advances that we make to the 2009 Entity under the Revolving Note, but we may decide to do so in the foreseeable future.

The 2009 Entity is a variable interest entity as defined under ASC 810. We held variable interests in the 2009 Entity as of June 30, 2012 as a result of the Revolving Note and 2009 RSA. To determine whether we were the primary beneficiary of the 2009 Entity, we:

 

   

assessed the risks that the 2009 Entity was designed to create and pass through to its variable interest holders;

 

   

identified the variable interests in the 2009 Entity;

 

   

identified the other variable interest holders and their involvement in the activities of the 2009 Entity;

 

   

identified the activities that most significantly impact the 2009 Entity’s economic performance;

 

   

determined whether we have the power to direct those activities; and

 

   

determined whether we have the right to receive the benefits from, or the obligation to absorb the losses of, the 2009

Entity that could potentially be significant to the 2009 Entity.

To identify the activities of the 2009 Entity that most significantly impact the economic performance of the 2009 Entity, we analyzed various possible scenarios of private education loan portfolio performance. In our analysis, we made what we believe are conservative assumptions based on historical data for the following key variables:

 

   

the composition of the credit profiles of the borrowers;

 

   

the interest rates and fees charged on the loans;

 

   

the default rates and the timing of defaults associated with similar types of loans; and

 

   

the prepayment and the speed of repayment associated with similar types of loans.

We determined that the activities of the 2009 Entity that most significantly impact its economic performance involve:

 

   

establishing the underwriting criteria of, and the interest rates and fees charged on, the private education loans acquired by the 2009 Entity; and

 

   

the servicing (which includes the collection) of the private education loans owned by the 2009 Entity.

Based on our analysis, we concluded that we are not the primary beneficiary of the 2009 Entity, because we do not direct those activities. As a result, we are not required under ASC 810 to include the financial results of the 2009 Entity in our condensed consolidated financial statements for the three or six months ended June 30, 2012. Our conclusion that we are not the primary beneficiary of the 2009 Entity did not change from the prior reporting period. Therefore, there was no effect on our condensed consolidated financial statements.

The carrying value of the Subordinated Note and the Revolving Note as of June 30, 2012 was approximately $19,000 and is included in Other assets on our Condensed Consolidated Balance Sheet.

9. Earnings Per Common Share

Earnings per common share for all periods have been calculated in conformity with ASC 260, “Earnings Per Share”. This data is based on historical net income and the weighted average number of shares of our common stock outstanding during each period as set forth in the following table:

 

     Three Months Ended      Six Months Ended  
     June 30,      June 30,  
     2012      2011      2012      2011  
     (In thousands)  

Shares:

           

Weighted average number of shares of common stock outstanding

     23,390         27,474         24,405         28,275   

Shares assumed issued (less shares assumed purchased for treasury) for stock-based compensation

     139         245         178         236   
  

 

 

    

 

 

    

 

 

    

 

 

 

Outstanding shares for diluted earnings per share calculation

     23,529         27,719         24,583         28,511   
  

 

 

    

 

 

    

 

 

    

 

 

 

 

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A total of 1,520,036 shares at June 30, 2012 and 1,107,236 shares at June 30, 2011 were excluded from the calculation of our diluted earnings per common share, because the effect was anti-dilutive.

10. Employee Pension Benefits

The following table sets forth the components of net periodic pension benefit of the ESI Pension Plan and ESI Excess Pension Plan for the periods indicated:

 

     Three Months     Six Months  
     Ended June 30,     Ended June 30,  
     2012     2011     2012     2011  

Interest cost

   $ 502      $ 598      $ 1,032      $ 1,196   

Expected return on assets

     (1,110     (1,147     (2,257     (2,294

Recognized net actuarial loss

     663        476        1,358        952   

Amortization of prior service (credit)

     (389     (346     (777     (692
  

 

 

   

 

 

   

 

 

   

 

 

 

Net periodic pension (benefit)

     ($334)        ($419)        ($644)        ($838)   
  

 

 

   

 

 

   

 

 

   

 

 

 

The benefit accruals under the ESI Pension Plan and ESI Excess Pension Plan were frozen effective March 31, 2006. As a result, no service cost has been included in the net periodic pension benefit.

We did not make any contributions to the ESI Pension Plan or the ESI Excess Pension Plan in the three or six months ended June 30, 2012 or 2011. We do not expect to make any contributions to the ESI Pension Plan or the ESI Excess Pension Plan in 2012.

11. Contingencies

As part of our normal operations, one of our insurers issues surety bonds for us that are required by various education authorities that regulate us. We are obligated to reimburse our insurer for any of those surety bonds that are paid by the insurer. As of June 30, 2012, the total face amount of those surety bonds was approximately $33,000.

We are also subject to various claims and contingencies, including those related to litigation, business transactions, guarantee arrangements and employee-related matters, among others. We record a liability for those claims and contingencies, if it is probable that a loss will result and the amount of the loss can be reasonably estimated. Although we believe that our estimates related to any claims and contingencies are reasonable, we cannot make any assurances with regard to the accuracy of our estimates, and actual results could differ materially. As of June 30, 2012, our recorded liability for these claims and contingencies was approximately $41,600, the substantial majority of which pertained to our guarantee arrangements. Approximately $6,000 of the recorded liability was included in Other current liabilities and approximately $35,600 was included in Other liabilities on our Condensed Consolidated Balance Sheet as of June 30, 2012.

We also considered whether additional losses for claims and contingencies were reasonably possible, could be estimated and might be material to our financial condition, results of operations or cash flows. With respect to our guarantee arrangements under the PEAKS Guarantee and the 2009 RSA and the risk sharing agreement that we entered into in 2007 (the “2007 RSA” and, collectively with the PEAKS Guarantee and the 2009 RSA, the “RSAs”), we believe that it is reasonably possible that we may incur losses in an estimated range of $15,000 less than to $15,000 greater than the recorded liability for those contingencies. As with any estimate, as facts and circumstances change, the recorded liability and estimated range of reasonably possible losses could change significantly. With respect to legal proceedings, we determined that we cannot provide an estimate of the possible losses, or the range of possible losses, in excess of the amount, if any, accrued, for various reasons, including but not limited to some or all of the following:

 

   

there are significant factual issues to be resolved;

 

   

there are novel or unsettled legal issues presented;

 

   

the proceedings are in the early stages;

 

   

there is uncertainty as to the likelihood of a class being certified or decertified or the ultimate size and scope of the class;

 

   

there is uncertainty as to the outcome of pending appeals or motions; and

 

   

in many cases, the plaintiffs have not specified damages in their complaint or in court filings.

Litigation. We are subject to various litigation in the ordinary course of our business. We cannot assure you of the ultimate outcome of any litigation involving us. Although we believe that our estimates related to any litigation are reasonable, deviations from our estimates could produce a materially different result. Any litigation alleging violations of education or consumer protection laws and/or regulations, misrepresentation, fraud or deceptive practices may also subject our affected campuses to additional regulatory scrutiny. The following is a description of pending litigation that falls outside the scope of litigation incidental to the ordinary course of our business.

 

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On November 3, 2010, a complaint in a securities class action lawsuit was filed against us and two of our current executive officers in the United States District Court for the Southern District of New York under the following caption: Operating Engineers Construction Industry and Miscellaneous Pension Fund, Individually and On Behalf of All Others Similarly Situated v. ITT Educational Services, Inc., et al. (the “Securities Litigation”). On January 21, 2011, the court named the Wyoming Retirement System as the lead plaintiff in the Securities Litigation. On April 1, 2011, an amended complaint was filed in the Securities Litigation under the following caption: In re ITT Educational Services, Inc. Securities and Shareholder Derivative Litigation. The amended complaint alleged, among other things, that:

 

   

the defendants violated Section 10(b) and 20(a) of the Exchange Act and Rule 10b-5 promulgated thereunder by creating and implementing a systemically predatory business model that operated as a fraud or deceit on purchasers of our common stock during the class period by misrepresenting our financials and future business prospects;

 

   

the defendants’ misrepresentations and material omissions caused our common stock to trade at artificially inflated prices throughout the class period; and

 

   

the market’s expectations were ultimately corrected on August 13, 2010 when the ED published the loan repayment rate of our students under a formula contained in proposed regulations published by the ED on July 26, 2010.

The putative class period in this action was from October 23, 2008 through August 13, 2010. The plaintiff sought, among other things, the designation of this action as a class action, and an award of unspecified compensatory damages, interest, costs, expenses, attorneys’ fees and expert fees.

On November 12, 2010, a complaint in a shareholder derivative lawsuit was filed against three of our current executive officers, all of our current Directors and one of our former Directors in the United States District Court for the Southern District of New York under the following caption: Antonio Cosing, Derivatively and On Behalf of ITT Educational Services, Inc. v. Kevin M. Modany, et al. (the “Cosing Lawsuit”). The complaint alleged, among other things, that from October 23, 2008 through August 13, 2010, the defendants breached their fiduciary duties to us, abused their ability to control and influence us, grossly mismanaged us, caused us to waste corporate assets and were unjustly enriched, by making false and misleading statements and engaging in fraudulent business practices. The complaint sought, among other things, unspecified damages, equitable and/or injunctive relief, restitution, disgorgement of profits, benefits and other compensation, an order directing us to reform our corporate governance and internal procedures, costs, disbursements and attorneys’ fees. On December 14, 2010, the Cosing Lawsuit was consolidated into the Securities Litigation.

On December 3, 2010, another complaint in a shareholder derivative lawsuit was filed against two of our current executive officers, all of our current Directors and one of our former Directors in the United States District Court for the Southern District of New York under the following caption: J. Kent Gregory, derivatively on behalf of ITT Educational Services, Inc. v. Kevin M. Modany, et al. (the “Gregory Lawsuit”). The complaint alleged, among other things, that the defendants breached their fiduciary duties to us, were unjustly enriched by us and misappropriated information about us, by making false and misleading statements and engaging in fraudulent business practices. The complaint sought, among other things, unspecified damages, restitution, disgorgement of profits, benefits and other compensation, an order directing us to reform our corporate governance and internal procedures, costs, disbursements and attorneys’ fees. The Gregory Lawsuit was consolidated into the Cosing Lawsuit on December 13, 2010 and further consolidated into the Securities Litigation on December 14, 2010.

On March 30, 2012, all of the claims alleged in the Securities Litigation were dismissed with prejudice, including the claims in the Cosing Lawsuit and Gregory Lawsuit.

On November 22, 2010, another complaint in a shareholder derivative lawsuit was filed against seven of our current and former officers, all of our current Directors and one of our former Directors in the United States District Court for the Southern District of Indiana under the following caption: Roger B. Orensteen, derivatively on behalf of ITT Educational Services, Inc. v. Kevin M. Modany, et al (the “Orensteen Lawsuit). The complaint alleged, among other things, that, from January 2008 through August 2010, the defendants violated Sections 10(b) and 20(a) of the Exchange Act, breached their fiduciary duties to us, abused their ability to control and influence us, grossly mismanaged us, caused us to waste corporate assets and were unjustly enriched, by making false and misleading statements and engaging in fraudulent business practices. The complaint sought, among other things, unspecified damages, restitution, disgorgement of profits, benefits and other compensation, an order directing us to reform our corporate governance and internal procedures, costs, disbursements and attorneys’ fees. On June 27, 2012, the Orensteen Lawsuit was dismissed without prejudice.

There can be no assurance that the ultimate outcome of derivative actions, federal or state securities law claims or other actions would not have a material adverse effect on our financial condition, results of operations or cash flows.

Guarantees. We entered into the PEAKS Guarantee in connection with the PEAKS Program. Under the PEAKS Guarantee, we guarantee payment of the principal, interest and certain call premiums owed on the PEAKS Senior Debt, and the administrative fees and expenses of the PEAKS Trust. The PEAKS Senior Debt bears interest at a variable rate based on the LIBOR plus an applicable margin and matures in January 2020. The PEAKS Guarantee agreement contains, among other things, representations and warranties and events of default customary for guarantees. In addition, under the PEAKS Program, some or all of the holders of the PEAKS Senior Debt could require us to purchase their PEAKS Senior Debt in certain limited circumstances that pertain to our continued eligibility to participate in the federal student financial aid programs under Title IV (the “Title IV Programs”) of the

 

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Higher Education Act of 1965, as amended (the “HEA”). We believe that the likelihood of those limited circumstances occurring is remote. Our guarantee and purchase obligations under the PEAKS Program remain in effect until the PEAKS Senior Debt and the PEAKS Trust’s fees and expenses are paid in full. At such time, we will be entitled to repayment of the amount of any payments made under the PEAKS Guarantee to the extent that funds are remaining in the PEAKS Trust.

The maximum future payments that we could be required to make under the PEAKS Guarantee include:

 

   

up to $284,000 in principal of PEAKS Senior Debt, which was the approximate outstanding principal balance of the PEAKS Senior Debt as of June 30, 2012;

 

   

accrued interest on the PEAKS Senior Debt;

 

   

certain call premiums associated with the PEAKS Senior Debt; and

 

   

the fees and expenses of the PEAKS Trust.

We are not able to estimate the undiscounted maximum potential amount of future payments that we could be required to make under the PEAKS Guarantee, because those payments will be affected by:

 

   

the repayment performance of the private education loans made under the PEAKS Program, the proceeds from which will be used to repay the PEAKS Senior Debt and to pay the fees and expenses of the PEAKS Trust;

 

   

the fact that those loans consist of a large number of loans of individually immaterial amounts;

 

   

the fact that the interest rate on the PEAKS Senior Debt is a variable rate based on the LIBOR plus a margin;

 

   

whether certain call premiums will be payable in connection with the PEAKS Senior Debt; and

 

   

the amount of fees and expenses of the PEAKS Trust, much of which is based on the principal balance of the private education loans held by the PEAKS Trust.

No new private education loans were or will be originated under the PEAKS Program after July 2011, but immaterial amounts related to loans originated prior to that date were disbursed by the lender through March 2012.

We entered into the 2009 RSA in connection with the 2009 Loan Program. Under the 2009 RSA, we guarantee the repayment of the principal amount (including capitalized origination fees) and accrued interest payable on any private education loans that are charged off above a certain percentage of the private education loans made under the 2009 Loan Program, based on the annual dollar volume. The total initial principal amount of private education loans that the 2009 Entity purchased under the 2009 Loan Program was approximately $141,000. No new private education loans were or will be originated under the 2009 Loan Program after December 31, 2011, but immaterial amounts related to loans originated prior to that date were disbursed by the lender through June 2012. Our obligations under the 2009 RSA will remain in effect until all private education loans made under the 2009 Loan Program are paid in full or charged off. The standard repayment term for a private education loan made under the 2009 Loan Program is ten years, with repayment generally beginning six months after a student graduates or three months after a student withdraws or is terminated from his or her program of study.

Pursuant to the 2009 RSA, we are required to maintain collateral to secure our guarantee obligation in an amount equal to a percentage of the outstanding balance of private education loans disbursed to our students under the 2009 Loan Program. As of June 30, 2012, the total collateral maintained in a restricted bank account was not material. This amount is included in Other assets on our Condensed Consolidated Balance Sheet as of June 30, 2012. The 2009 RSA also requires that we comply with certain covenants, including that we maintain certain financial ratios which are measured on a quarterly basis. We were in compliance with these covenants as of June 30, 2012.

We entered into the 2007 RSA with a different lender for certain private education loans that were made to our students in 2007 and early 2008. We guarantee the repayment of any private education loans that the lender charges off above a certain percentage of the total dollar volume of private education loans made under the 2007 RSA. We will have the right to pursue repayment from the borrowers for those charged off private education loans under the 2007 RSA that we pay to the lender pursuant to our guarantee obligation. The 2007 RSA was terminated effective February 22, 2008, such that no private education loans have been or will be made under the 2007 RSA after that date. Based on information that we have received to date from the lender, we believe that the total original principal amount of private education loans made under the 2007 RSA, net of amounts refunded under those loans, was approximately $180,000. Our obligations under the 2007 RSA will remain in effect until all private education loans under the agreement are paid in full or charged off by the lender. The standard repayment term for a private education loan made under the 2007 RSA is ten years, with repayment generally beginning six months after a student graduates, withdraws or is terminated from his or her program of study.

As of June 30, 2012, we had made guarantee payments that were not material under the RSAs. At the end of each reporting period, we assess whether we should recognize a contingent liability related to our guarantees under the RSAs and, if so, in what amount. Our recorded liability for the obligations related to the guarantee arrangements under the RSAs is included in Other liabilities on our Condensed Consolidated Balance Sheets.

 

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Item 2. Management’s Discussion and Analysis of Financial Condition and Results of Operations.

Forward-Looking Statements

All statements, trend analyses and other information contained in this report that are not historical facts are forward-looking statements within the meaning of the safe harbor provision of the Private Securities Litigation Reform Act of 1995 and as defined in Section 27A of the Securities Act of 1933 (the “Securities Act”) and Section 21E of the Exchange Act. Forward-looking statements are made based on our management’s current expectations and beliefs concerning future developments and their potential effects on us. You can identify those statements by the use of words such as “could,” “should,” “would,” “may,” “will,” “project,” “believe,” “anticipate,” “expect,” “plan,” “estimate,” “forecast,” “potential,” “intend,” “continue” and “contemplate,” as well as similar words and expressions. Forward-looking statements involve risks and uncertainties and do not guarantee future performance. We cannot assure you that future developments affecting us will be those anticipated by our management. Among the factors that could cause actual results to differ materially from those expressed in our forward-looking statements are the following:

 

  changes in federal and state governmental laws and regulations with respect to education and accreditation standards, or the interpretation or enforcement of those laws and regulations, including, but not limited to, the level of government funding for, and our eligibility to participate in, student financial aid programs utilized by our students;

 

  business conditions and growth in the postsecondary education industry and in the general economy;

 

  our failure to comply with the extensive education laws and regulations and accreditation standards that we are subject to;

 

  effects of any change in our ownership resulting in a change in control, including, but not limited to, the consequences of such changes on the accreditation and federal and state regulation of our campuses;

 

  our ability to implement our growth strategies;

 

  our failure to maintain or renew required federal or state authorizations or accreditations of our campuses or programs of study;

 

  receptivity of students and employers to our existing program offerings and new curricula;

 

  loss of access by our students to lenders for education loans;

 

  our ability to collect internally funded financing from our students;

 

  our exposure under our guarantees related to private student loan programs; and

 

  our ability to successfully defend litigation and other claims brought against us.

Readers are also directed to other risks and uncertainties discussed in other documents we file with the SEC, including, without limitation, those discussed in Item 1A. “Risk Factors.” of our Annual Report on Form 10-K for the fiscal year ended December 31, 2011 filed with the SEC, in Part II, Item 1A. “Risk Factors” of our Quarterly Report on Form 10-Q for the fiscal quarter ended March 31, 2012 and in Part II, Item 1A. “Risk Factors” of this Quarterly Report on Form 10-Q. We undertake no obligation to update or revise any forward-looking information, whether as a result of new information, future developments or otherwise.

Overview

You should keep in mind the following points as you read this report:

 

  References in this document to “we,” “us,” “our” and “ITT/ESI” refer to ITT Educational Services, Inc. and its subsidiaries.

 

  The terms “ITT Technical Institute” or “Daniel Webster College” (in singular or plural form) refer to an individual school or campus owned and operated by ITT/ESI, including its learning sites, if any. The term “institution” (in singular or plural form) means a main campus and its additional locations, branch campuses and/or learning sites, if any.

This management’s discussion and analysis of financial condition and results of operations should be read in conjunction with the same titled section contained in our Annual Report on Form 10-K for the fiscal year ended December 31, 2011 filed with the SEC for discussion of, among other matters, the following items:

 

  cash receipts from financial aid programs;

 

  nature of capital additions;

 

  seasonality of revenue;

 

  components of income statement captions;

 

  federal regulations regarding:

 

  timing of receipt of funds from the Title IV Programs;

 

  percentage of applicable revenue that may be derived from the Title IV Programs;

 

  return of Title IV Program funds for withdrawn students; and

 

  default rates;

 

  private loan programs;

 

  investments; and

 

  repurchase of shares of our common stock.

This management’s discussion and analysis of financial condition and results of operations is based on our condensed consolidated financial statements, which have been prepared in conformity with generally accepted accounting principles in the United States. The preparation of these financial statements requires us to make estimates and judgments that affect the reported amount of assets, liabilities, revenue, expenses, and contingent assets and liabilities. Actual results may differ from those estimates and judgments under different assumptions or conditions.

 

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In this management’s discussion and analysis of financial condition and results of operations, when we discuss factors that contributed to a change in our financial condition or results of operations, we disclose the primary factors that materially contributed to that change.

Background

We are a leading proprietary provider of postsecondary degree programs in the United States based on revenue and student enrollment. As of June 30, 2012, we were offering master, bachelor and associate degree programs to approximately 66,000 students. As of June 30, 2012, we had 149 college locations (including 146 campuses and three learning sites) in 39 states. In addition, we offered one or more of our online programs to students who are located in 48 states. All of our college locations are authorized by the applicable education authorities of the states in which they operate, and are accredited by an accrediting commission recognized by the ED. We design our education programs, after consultation with employers and other constituents, to help graduates prepare for careers in various fields involving their areas of study. We have provided career-oriented education programs since 1969 under the “ITT Technical Institute” name and since June 2009 under the “Daniel Webster College” name.

In the second quarter of 2012, we began operations at one new ITT Technical Institute campus. We plan to begin operations at one new location during the remainder of 2012. Our strategy is to pursue multiple opportunities for growth. We are implementing a growth strategy designed to:

 

   

improve the academic outcomes of our students;

 

   

increase the value proposition of our education programs for our students; and

 

   

increase access to high-quality, career-based education.

We intend to pursue this strategy by:

 

   

increasing student enrollment in existing programs at existing campuses;

 

   

increasing the number and types of program and other educational offerings that are delivered in residence and/or online;

 

   

increasing our students’ engagement in their programs of study;

 

   

enhancing the relevancy of our educational offerings;

 

   

assessing student achievement and learning;

 

   

improving the flexibility and convenience of how our institutions deliver their educational offerings;

 

   

increasing our students’ access to financial aid;

 

   

helping our graduates obtain entry-level employment involving their fields of study at higher starting annual salaries;

 

   

operating new campuses across the United States and new institutions in international markets;

 

   

adding learning sites to existing campuses; and

 

   

investing in other education-related opportunities.

Critical Accounting Policies and Estimates

The preparation of our condensed consolidated financial statements requires us to make estimates and judgments that affect the reported amount of assets, liabilities, revenue, expenses, and contingent assets and liabilities. Actual results may differ from those estimates and judgments under different assumptions or conditions. We have discussed the critical accounting policies that we believe affect our more significant estimates and judgments used in the preparation of our consolidated financial statements in the “Management’s Discussion and Analysis of Financial Condition and Results of the Operations – Critical Accounting Policies and Estimates” section of our Annual Report on Form 10-K for the fiscal year ended December 31, 2011 filed with the SEC. There have been no material changes to those critical accounting policies or the underlying accounting estimates or judgments.

New Accounting Guidance

In December 2011, the FASB issued ASU No. 2011-12, which is included in the Codification under ASC 220. This update defers the effective date of ASU No. 2011-05 for changes that relate to the presentation of reclassification adjustments out of accumulated other comprehensive income. None of the other requirements in ASU 2011-05 are affected by this update. This guidance became effective for our interim and annual reporting periods beginning January 1, 2012. The adoption of this guidance did not have a material impact on our condensed consolidated financial statements.

 

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Also in December 2011, the FASB issued ASU No. 2011-11, which is included in the Codification under ASC 210. This update provides for enhanced disclosures to help users of financial statements evaluate the effect or potential effect of netting arrangements on an entity’s financial position. This guidance is effective for interim and annual reporting periods beginning January 1, 2013. We have not yet determined the effect that the adoption of this guidance will have on our condensed consolidated financial statements.

In September 2011, the FASB issued ASU No. 2011-08, which is included in the Codification under ASC 350. This update allows an entity to assess qualitative factors to determine whether it is necessary to perform the two-step quantitative goodwill impairment test. This guidance became effective for our interim and annual reporting periods beginning January 1, 2012. The adoption of this guidance did not have a material impact on our condensed consolidated financial statements.

In June 2011, the FASB issued ASU No. 2011-05, which is included in the Codification under ASC 220. This update requires total comprehensive income, the components of net income and the components of other comprehensive income to be presented either in a single continuous statement or in two separate but consecutive statements. This guidance became effective for our interim and annual reporting periods beginning January 1, 2012. Prior to January 1, 2012, we presented total Comprehensive income and the components of Other comprehensive income in our Condensed Consolidated Statement of Shareholders’ Equity. After December 31, 2011, we present total Comprehensive income and the components of Other comprehensive income in our Condensed Consolidated Statements of Comprehensive Income.

In May 2011, the FASB issued ASU 2011-04, which is included in the Codification under ASC 820. This update provides guidance and clarification about the application of existing fair value measurements and disclosure requirements. This guidance became effective for our interim and annual reporting periods beginning January 1, 2012. The adoption of this guidance did not have a material impact on our condensed consolidated financial statements.

Results of Operations

The following table sets forth the percentage relationship of certain statement of income data to revenue for the periods indicated:

 

     Three Months Ended
June 30,
    Six Months Ended
June 30,
 
     2012     2011     2012     2011  

Revenue

     100.0     100.0     100.0     100.0

Cost of educational services

     42.7     36.7     41.1     36.3

Student services and administrative expenses

     33.8     29.8     32.4     28.6
  

 

 

   

 

 

   

 

 

   

 

 

 

Operating income

     23.5     33.5     26.5     35.1

Interest (expense) income, net

     (0.3%     0.1     (0.1%     0.1
  

 

 

   

 

 

   

 

 

   

 

 

 

Income before provision for income taxes

     23.2     33.6     26.4     35.2
  

 

 

   

 

 

   

 

 

   

 

 

 

The following table sets forth our total student enrollment as of the dates indicated:

 

    

2012

   2011

Total Student Enrollment as of:

  

Total

Student
Enrollment

  

(Decrease)

To

Prior Year

   Total
Student
Enrollment
     (Decrease)
To
Prior Year

March 31

   71,123    (15.4%)      84,030         (0.6%)

June 30

   66,397    (15.7%)      78,743         (7.0%)

September 30

   Not applicable    Not applicable      79,219       (10.0%)

December 31

   Not applicable    Not applicable      73,255       (13.5%)

Total student enrollment includes all new and continuing students. A continuing student is any student who, in the academic term being measured, is enrolled in a program of study at one of our campuses and was enrolled in the same program at any of our campuses at the end of the immediately preceding academic term. A new student is any student who, in the academic term being measured, enrolls in and begins attending any program of study at one of our campuses:

 

   

for the first time at that campus;

 

   

after graduating in a prior academic term from a different program of study at that campus; or

 

   

after having withdrawn or been terminated from a program of study at that campus.

The following table sets forth our new student enrollment in the periods indicated:

 

     2012      2011  

New Student Enrollment in the

Three Months Ended:

   New
Student
Enrollment
     (Decrease)
To
Prior Year
     New
Student
Enrollment
     (Decrease)
To
Prior Year
 

March 31

     18,067         (17.0%)         21,761         (5.6%)   

June 30

     15,698         (9.5%)         17,351         (19.9%)   

September 30

     Not applicable         Not applicable         22,909         (14.1%)   

December 31

     Not applicable         Not applicable         15,125         (14.7%)   
        

 

 

    

 

 

 

Total for the year

     Not applicable         Not applicable         77,146         (13.4%)   
        

 

 

    

 

 

 

 

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We believe that the decrease in new student enrollment in the three months ended June 30, 2012 compared to the three months ended June 30, 2011 was primarily due to:

 

   

a decrease in the rate at which prospective students who applied for enrollment actually began attending classes in their program of study;

 

   

changes that we made to program offerings at select campuses which resulted in a more significant decline in new student enrollment in the criminal justice programs of study compared to our other curricula; and

 

   

a decline in new student enrollment in the drafting and design programs of study compared to our other curricula, which we believe may have been due to economic changes in the construction industry generally.

We believe that the decrease in new student enrollment in the three months ended March 31, 2012 compared to the three months ended March 31, 2011 was primarily due to:

 

   

changes that we made to program offerings at select campuses which resulted in a more significant decline in new student enrollment in the criminal justice programs of study compared to our other curricula; and

 

   

a decline in new student enrollment in the drafting and design programs of study compared to our other curricula, which we believe may have been due to economic changes in the construction industry generally.

A continued decline in new and total student enrollment could have a material adverse effect on our business, financial condition, revenue and other results of operations and cash flows. We have taken a number of steps in an attempt to reverse the decline in total and new student enrollment, including, without limitation, refining our marketing, advertising and communications to focus more on the student value proposition and outcomes of an ITT Technical Institute education.

At the vast majority of our campuses, we generally organize the academic schedule for programs of study offered on the basis of four 12-week academic quarters in a calendar year. The academic quarters typically begin in early March, mid-June, early September and late November or early December. To measure the persistence of our students, the number of continuing students in any academic term is divided by the total student enrollment in the immediately preceding academic term.

The following table sets forth the rates of our students’ persistence as of the dates indicated:

 

     Student Persistence as of:  

Year

   March 31     June 30     September 30     December 31  

2010

     76.1     74.5     72.4     76.1

2011

     73.5     73.1     71.5     73.4

2012

     72.4     71.3     Not applicable        Not applicable   

The decrease in student persistence as of June 30 and March 31, 2012 compared to the corresponding prior year dates was primarily due to a higher number of students who graduated at the end of the academic period that began in March 2012 and December 2011 compared to the end of the same academic period in the prior year.

Three Months Ended June 30, 2012 Compared with Three Months Ended June 30, 2011. Revenue decreased $58.1 million, or 15.0%, to $329.8 million in the three months ended June 30, 2012 compared to $387.9 million in the three months ended June 30, 2011. The primary factors that contributed to this decrease included, in order of significance:

 

   

a 15.4% decrease in total student enrollment as of March 31, 2012 compared to March 31, 2011; and

 

   

a 15.7% decrease in total student enrollment as of June 30, 2012 compared to June 30, 2011.

The decrease in revenue was partially offset by a lesser impact of the private education loan programs, which expired in 2011, on our revenue recognition in the three months ended June 30, 2012 compared to the same prior year period.

The primary factors that contributed to the decrease in total student enrollment as of March 31, 2012 compared to March 31, 2011 included, in order of significance:

 

   

the 17.0% decrease in new student enrollment in the three months ended March 31, 2012 and the 14.7% decrease in new student enrollment in the three months ended December 31, 2011 compared to the same prior year periods; and

 

   

an increase in the number of students who graduated in the three months ended March 31, 2012 compared to the same prior year period.

The primary factors that contributed to the decrease in total student enrollment as of June 30, 2012 compared to June 30, 2011 included, in order of significance:

 

   

the 9.5% decrease in new student enrollment in the three months ended June 30, 2012 and the 17.0% decrease in new student enrollment in the three months ended March 31, 2012 compared to the same prior year periods; and

 

   

an increase in the number of students who graduated in the three months ended June 30, 2012 compared to the same prior year period.

Cost of educational services decreased $1.3 million, or 0.9%, to $140.9 million in the three months ended June 30, 2012 compared to $142.3 million in the three months ended June 30, 2011. The primary factor that contributed to this decrease was a decrease in compensation costs, which was partially offset by the increased costs associated with operating new campuses.

 

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Cost of educational services as a percentage of revenue increased 600 basis points to 42.7% in the three months ended June 30, 2012 compared to 36.7% in the three months ended June 30, 2011. The primary factor that contributed to this increase was a decline in revenue, which was partially offset by a decrease in compensation costs.

Student services and administrative expenses decreased $4.2 million, or 3.6%, to $111.5 million in the three months ended June 30, 2012 compared to $115.6 million in the three months ended June 30, 2011. The principal causes of this decrease were decreases in expenses related to student scholarships and media advertising expenses, which were partially offset by an increase in bad debt expense.

Student services and administrative expenses increased to 33.8% of revenue in the three months ended June 30, 2012 compared to 29.8% of revenue in the three months ended June 30, 2011. The principal causes of this increase were a decline in revenue and an increase in bad debt expense, which were partially offset by decreases in expenses related to student scholarships and media advertising expenses. Bad debt expense as a percentage of revenue increased to 5.8% in the three months ended June 30, 2012 compared to 4.5% in the three months ended June 30, 2011, primarily as a result of an increase in the amount of internal student financing that we provided to our students in the three months ended June 30, 2012 compared to the three months ended June 30, 2011. The increase in the amount of internal student financing was primarily due to a decline in the amount of private education loans available to our students in the three months ended June 30, 2012 as a result of the expiration in 2011 of the two private education loan programs that provided the vast majority of private education loans to our students in 2011.

Operating income decreased $52.6 million, or 40.4%, to $77.4 million in the three months ended June 30, 2012 compared to $130.0 million in the three months ended June 30, 2011, primarily as a result of the impact of the factors discussed above in connection with revenue, cost of educational services, and student services and administrative expenses. Our operating margin decreased to 23.5% in the three months ended June 30, 2012 compared to 33.5% in the three months ended June 30, 2011, primarily as a result of the impact of the factors discussed above.

Interest income decreased $0.3 million, or 36.5%, to $0.5 million in the three months ended June 30, 2012 compared to $0.8 million in the three months ended June 30, 2011, primarily due to lower investment balances. Interest expense increased $0.8 million, or 147.3%, to $1.3 million in the three months ended June 30, 2012 compared to $0.5 million in the three months ended June 30, 2011, primarily due to an increase in the effective interest rate on our revolving credit facility.

Our combined federal and state effective income tax rate was 40.0% in the three months ended June 30, 2012 compared to 39.4% in the three months ended June 30, 2011. Our combined effective income tax rate increased primarily due to settlements of certain state income tax audits and changes in state income tax laws.

Six Months Ended June 30, 2012 Compared with Six Months Ended June 30, 2011. Revenue decreased $99.4 million, or 12.9%, to $671.6 million in the six months ended June 30, 2012 compared to $771.0 million in the six months ended June 30, 2011. The primary factors that contributed to this decrease included, in order of significance:

 

   

a 15.4% decrease in total student enrollment as of March 31, 2012 compared to March 31, 2011;

 

   

a 13.5% decrease in total student enrollment as of December 31, 2011 compared to December 31, 2010; and

 

   

a 15.7% decrease in total student enrollment as of June 30, 2012 compared to June 30, 2011.

The decrease in revenue was partially offset by a lesser impact of the private education loan programs, which expired in 2011, on our revenue recognition in the six months ended June 30, 2012 compared to the same prior year period.

Cost of educational services decreased $4.3 million, or 1.5%, to $275.9 million in the six months ended June 30, 2012 compared to $280.2 million in the six months ended June 30, 2011. The primary factors that contributed to this decrease included, in order of significance:

 

   

a decrease in compensation costs; and

 

   

a decrease in legal expenses.

Cost of educational services as a percentage of revenue increased 480 basis points to 41.1% in the six months ended June 30, 2012 compared to 36.3% in the six months ended June 30, 2011. The primary factor that contributed to this increase was a decline in revenue, which was partially offset by decreases in compensation costs and legal expenses.

Student services and administrative expenses decreased $2.5 million, or 1.1%, to $217.7 million in the six months ended June 30, 2012 compared to $220.2 million in the six months ended June 30, 2011. The principal cause of this decrease was a decrease in expenses related to student scholarships, which was partially offset by an increase in bad debt expense.

Student services and administrative expenses increased to 32.4% of revenue in the six months ended June 30, 2012 compared to 28.6% of revenue in the six months ended June 30, 2011. The principal causes of this increase were a decline in revenue and an increase in bad debt expense, which were partially offset by a decrease in expenses related to student scholarships. Bad debt expense as a percentage of revenue increased to 5.2% in the six months ended June 30, 2012 compared to 3.9% in the six months ended June 30, 2011, primarily as a result of an increase in the amount of internal student financing that we provided to our students in the six months ended June 30, 2012 compared to the six months ended June 30, 2011. The increase in the amount of internal student financing was primarily due to a decline in the amount of private education loans available to our students in the six months ended June 30, 2012 as a result of the expiration in 2011 of the two private education loan programs that provided the vast majority of private education loans to our students in 2011.

 

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Operating income decreased $92.6 million, or 34.2%, to $178.0 million in the six months ended June 30, 2012 compared to $270.6 million in the six months ended June 30, 2011, primarily as a result of the impact of the factors discussed above in connection with revenue, cost of educational services, and student services and administrative expenses. Our operating margin decreased to 26.5% in the six months ended June 30, 2012 compared to 35.1% in the six months ended June 30, 2011, primarily as a result of the impact of the factors discussed above.

Interest income decreased $0.4 million, or 27.2%, to $1.2 million in the six months ended June 30, 2012 compared to $1.6 million in the six months ended June 30, 2011, primarily due to lower investment balances. Interest expense increased $0.7 million, or 69.5%, to $1.8 million in the six months ended June 30, 2012 compared to $1.1 million in the six months ended June 30, 2011, primarily due to an increase in the effective interest rate on our revolving credit facility.

Our combined federal and state effective income tax rate was 39.6% in the six months ended June 30, 2012 compared to 39.4% in the six months ended June 30, 2011. Our combined effective income tax rate increased primarily due to changes in state income tax laws.

Financial Condition, Liquidity and Capital Resources

Cash and cash equivalents were $167.2 million as of June 30, 2012 compared to $229.0 million as of December 31, 2011 and $158.2 million as of June 30, 2011. We had no short-term investments as of June 30, 2012 compared to $148.5 million as of December 31, 2011 and $147.1 million as of June 30, 2011. In total, our cash and cash equivalents and short-term investments were $167.2 million as of June 30, 2012 compared to $377.5 million as of December 31, 2011 and $305.4 million as of June 30, 2011. Cash and cash equivalents and short-term investments as of June 30, 2012 decreased:

 

   

$210.2 million compared to December 31, 2011, primarily due to repurchases of our common stock; and

 

   

$138.1 million compared to June 30, 2011, primarily due to repurchases of our common stock, which was partially offset by cash generated from operations.

We are required to recognize the funded status of our defined benefit postretirement plans on our balance sheet. We recorded an asset of $5.9 million for the ESI Pension Plan, a non-contributory defined benefit pension plan commonly referred to as a cash balance plan, and a liability of $0.3 million for the ESI Excess Pension Plan, a nonqualified, unfunded retirement plan, on our Condensed Consolidated Balance Sheet as of June 30, 2012.

We do not expect to make any contributions to the ESI Pension Plan or the ESI Excess Pension Plan in 2012. In 2011, we did not make any contributions to either the ESI Pension Plan or ESI Excess Pension Plan.

Operations. Net cash used in operating activities was $38.3 million in the three months ended June 30, 2012 compared to net cash generated from operating activities of $60.6 million in the three months ended June 30, 2011. The $98.9 million decrease in net cash flows from operating activities was primarily due to lower student enrollments and a decrease in the amount of funds received from private education loans made to our students by third-party lenders.

Net cash used in operating activities was $1.0 million in the six months ended June 30, 2012 compared to net cash generated from operating activities of $242.7 million in the six months ended June 30, 2011. The $243.7 million decrease in net cash flows from operating activities was primarily due to lower student enrollments and a decrease in the amount of funds received from private education loans made to our students by third-party lenders.

Accounts receivable less allowance for doubtful accounts was $73.7 million as of June 30, 2012 compared to $47.0 million as of June 30, 2011. Days sales outstanding increased 9.3 days to 20.3 days at June 30, 2012 compared to 11.0 days at June 30, 2011. Our accounts receivable balance and days sales outstanding increased as of June 30, 2012, primarily due to an increase in internal student financing resulting from a decrease in the amount of funds received from private education loans made to our students by third-party lenders.

Investing. In the three months ended June 30, 2012, we spent $0.3 million to renovate, expand and construct buildings compared to $1.2 million for similar expenditures in the three months ended June 30, 2011. In the six months ended June 30, 2012, we spent $0.4 million to renovate, expand or construct buildings compared to $1.7 million for similar expenditures in the six months ended June 30, 2011.

Capital expenditures, excluding facility and land purchases and facility construction, totaled:

 

   

$7.1 million in the three months ended June 30, 2012 compared to $7.5 million in the three months ended June 30, 2011; and

 

   

$11.6 million in the six months ended June 30, 2012 compared to $12.2 million in the six months ended June 30, 2011.

These expenditures consisted primarily of classroom and laboratory equipment (such as computers and electronic equipment), classroom and office furniture, software and leasehold improvements.

 

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We plan to continue to upgrade and expand our current facilities and equipment in 2012. Cash generated from operations is expected to be sufficient to fund our capital expenditure requirements.

Financing. We were a party to the Prior Credit Agreement which provided that we could borrow up to $150.0 million under two revolving credit facilities: one in the maximum principal amount of $50.0 million; and the other in the maximum principal amount of $100.0 million. We could borrow under each credit facility on either a secured or unsecured basis at our election, provided that we were not in default under the Prior Credit Agreement.

Borrowings under the Prior Credit Agreement bore interest, at our option, at the LIBOR plus an applicable margin or at an alternative base rate as defined under the Prior Credit Agreement. We paid a facility fee equal to 0.25% per annum on the daily amount of the commitment (whether used or unused) under the Prior Credit Agreement.

On March 21, 2012, we entered into the New Credit Agreement that provides for a Revolver in the amount of $325.0 million. The New Credit Agreement also provides that we may seek additional revolving commitments or term loan commitments in an aggregate principal amount not to exceed $125.0 million. The lenders under the New Credit Agreement are not under any obligation to provide any such additional revolving commitments or term loan commitments. The New Credit Agreement has a maturity date of March 21, 2015.

A portion of the borrowings under of the Revolver were used to prepay the entire outstanding indebtedness under the Prior Credit Agreement. The Prior Credit Agreement was also terminated on March 21, 2012. In addition to the prepayment of the outstanding indebtedness under the Prior Credit Agreement, borrowings under the New Credit Agreement will be used for general corporate purposes.

Borrowings under the New Credit Agreement bear interest, at our option, at LIBOR plus an applicable margin or at an alternative base rate, as defined under the New Credit Agreement, plus an applicable margin. The applicable margin for borrowings under the Revolver is determined based on the Leverage Ratio as of the end of each fiscal quarter. We also pay a commitment fee on the amount of the unutilized commitments under the New Credit Agreement. The amount of the commitment fee is determined based on the Leverage Ratio as of the end of each fiscal quarter.

The New Credit Agreement contains, among other things, covenants, representations and warranties and events of default customary for credit facilities. The New Credit Agreement is secured by a pledge of the equity interests of our subsidiaries and is guaranteed by one of our subsidiaries. We are required to maintain compliance with a maximum Leverage Ratio, a minimum interest coverage ratio, a minimum liquidity amount and several ratios related to the ED’s regulations. We were in compliance with those requirements as of June 30, 2012.

As of June 30, 2012, the borrowings under the New Credit Agreement totaled $150.0 million and bore interest at a weighted average rate of 2.25% per annum. The effective interest rate on our borrowings was approximately 2.70% per annum in the three months ended June 30, 2012 and approximately 1.30% per annum in the three months ended June 30, 2011. In the six months ended June 30, 2012, the effective interest rate on our borrowings was approximately 2.10% per annum compared to approximately 1.40% per annum in the six months ended June 30, 2011. The commitment fee under the New Credit Agreement was 0.30% as of June 30, 2012.

Our Board of Directors has authorized us to repurchase shares of our common stock in the open market or through privately negotiated transactions in accordance with Rule 10b-18 of the Exchange Act under the Repurchase Program. The following table sets forth information regarding our share repurchase activity in the periods indicated:

 

     Three Months Ended June 30,      Six Months Ended June 30,  
     2012      2011      2012      2011  

Number of shares repurchased

     928,500         1,100,000            3,025,700         3,100,000   

Total cost of shares repurchased (in millions)

   $ 61.3       $ 79.4          $ 207.9       $ 218.5   

Average cost per share

   $ 65.98       $ 72.20          $ 68.72       $ 70.49   

Approximately 7.8 million shares remained available for repurchase under the Repurchase Program as of June 30, 2012. Pursuant to the Board’s stock repurchase authorization, we may repurchase additional shares of our common stock from time to time in the future depending on market conditions and other considerations.

We believe that cash generated from operations and our investments will be adequate to satisfy our working capital, loan repayment and capital expenditure requirements for the foreseeable future. We also believe that any reduction in cash and cash equivalents or investments that may result from their use to provide student financing, purchase facilities, construct facilities, repay loans or repurchase shares of our common stock will not have a material adverse effect on our expansion plans, planned capital expenditures, ability to meet any applicable regulatory financial responsibility standards or ability to conduct normal operations.

Private Student Financing Update. In 2011 and 2010, we received funds on behalf of our students from unaffiliated private education loan programs, which represented, in the aggregate, approximately 7% of our cash receipts in 2011 and 12% of our cash receipts in 2010. As previously discussed, the two private education loan programs that provided the vast majority of private education loans to our students in 2011 and 2010 expired in 2011. As a result, in the first six months of 2012, we have increased the amount of internal student financing that we provide to our students.

 

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The increased internal student financing that we have provided to our students has negatively impacted our liquidity and exposed us to greater credit risk. Internal student financing provides for payments to us by our students over an extended term, which has had a material adverse effect on our cash flows from operations in the first six months of 2012. In addition, we have the risk of collection with respect to our internal student financing, which has caused us to increase our allowance for doubtful accounts as of June 30, 2012 compared to June 30, 2011 and has resulted in an increase in our bad debt expense as a percentage of revenue in the first six months of 2012 compared to the same prior year period. Increases in internal student financing also increased our accounts receivable and our days sales outstanding as of June 30, 2012 compared to June 30, 2011. Further, our deferred revenue decreased as of June 30, 2012 compared to June 30, 2011, primarily due to the decrease in the amount of funds received from private education loans made to our students by third-party lenders.

A continued lack of availability of private education loans for our students will continue to materially adversely impact our financial condition and cash flows. We are pursuing arrangements with unaffiliated lenders for them to provide private education loans to our students and their parents who qualify. We cannot assure you, however, that we will be able to timely identify alternative lenders on terms as favorable to us as the previous programs were, or at all. Adverse market conditions for consumer loans and student loans, including lenders’ difficulties in reselling or syndicating student loan portfolios, have resulted and could continue to result in providers of private education loans reducing the availability of, or increasing the costs associated with, providing those loans to students. The loan underwriting standards can vary significantly among lenders, which could adversely affect the ability of some of our students to obtain private education loans. In particular, private education loans to students with low credit scores are difficult to obtain. During such time as our students and their parents are unable to obtain private education loans, we intend to continue to provide internal student financing to our students, which will result in a continuation of the adverse factors that are described in the preceding paragraph, including a material adverse effect on our financial condition and cash flows.

Contractual Obligations

The following table sets forth our specified contractual obligations as of June 30, 2012:

 

     Payments Due by Period  

Contractual Obligations

   Total      Less than
1 Year
     1-3
Years
     3-5
Years
     More than
5 Years
 
     (In thousands)  

Operating lease obligations

   $ 164,611       $ 47,538       $ 78,063       $ 30,259       $ 8,751   

Long-term debt, including scheduled interest payments

   $ 160,915       $ 3,969       $ 156,946       $ 0       $ 0   
  

 

 

    

 

 

    

 

 

    

 

 

    

 

 

 

Total

   $ 325,526       $ 51,507       $ 235,009       $ 30,259       $ 8,751   
  

 

 

    

 

 

    

 

 

    

 

 

    

 

 

 

The long-term debt represents the Revolver under the New Credit Agreement and assumes that the $150.0 million outstanding balance under the Revolver as of June 30, 2012 will be outstanding at all times through the date of maturity. The amounts shown include the principal payments that will be due upon maturity as well as interest payments and commitment fees. Interest payments and commitment fees have been calculated based on their scheduled payment dates using the interest rate charged on our borrowings and the rate charged on unutilized commitments as of June 30, 2012.

Off-Balance Sheet Arrangements

As of June 30, 2012, we leased our non-owned facilities under operating lease agreements. A majority of the operating leases contain renewal options that can be exercised after the initial lease term. Renewal options are generally for periods of one to five years. All operating leases will expire over the next 12 years and management believes that:

 

   

those leases will be renewed or replaced by other leases in the normal course of business;

 

   

we may purchase the facilities represented by those leases; or

 

   

we may purchase or build other replacement facilities.

There are no material restrictions imposed by the lease agreements, and we have not entered into any significant guarantees related to the leases. We are required to make additional payments under the terms of certain operating leases for taxes, insurance and other operating expenses incurred during the operating lease period.

As part of our normal course of operations, one of our insurers issues surety bonds for us that are required by various education authorities that regulate us. We are obligated to reimburse our insurer for any of those surety bonds that are paid by the insurer. As of June 30, 2012, the total face amount of those surety bonds was approximately $33.0 million.

On January 20, 2010, we entered into agreements with unrelated parties to establish the PEAKS Program. Under the PEAKS Program, an unaffiliated lender originated private education loans to our eligible students and, subsequently, sold those loans to the PEAKS Trust. The PEAKS Trust issued PEAKS Senior Debt in the aggregate principal amount of $300.0 million to investors. The assets of the PEAKS Trust (which include, among other assets, the student loans held by the PEAKS Trust) serve as collateral for, and are intended to be the principal source of, the repayment of the PEAKS Senior Debt. The PEAKS Trust is required to maintain assets having an aggregate value that exceeds the outstanding balance of the PEAKS Senior Debt. As of June 30, 2012, the value of the assets of the PEAKS Trust satisfied this requirement. The PEAKS Senior Debt bears interest at a variable rate based on the LIBOR plus a margin and matures in January 2020. As of June 30, 2012, the outstanding principal balance of the PEAKS Senior Debt was approximately $284.0 million.

 

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In connection with the PEAKS Program, the lender disbursed the proceeds of the private education loans to us for application to the students’ account balances with us that represent their unpaid education costs. We transferred to the PEAKS Trust a portion of the amount of each private student loan disbursed to us under the PEAKS Program, in exchange for a Subordinated Note. The Subordinated Note does not bear interest, and principal is due on the Subordinated Note following the repayment of the PEAKS Senior Debt, the payment of fees and expenses of the PEAKS Trust and the reimbursement of the amount of any payments made by us under the PEAKS Guarantee. The PEAKS Trust utilized the proceeds from the issuance of the PEAKS Senior Debt and the Subordinated Note to purchase the student loans from the lender.

Under the PEAKS Guarantee, we guarantee payment of the principal, interest and certain call premiums owed on the PEAKS Senior Debt, and the administrative fees and expenses of the PEAKS Trust. The PEAKS Guarantee contains, among other things, representations and warranties and events of default customary for guarantees. In addition, under the PEAKS Program, some or all of the holders of the PEAKS Senior Debt could require us to purchase their PEAKS Senior Debt in certain limited circumstances that pertain to our continued eligibility to participate in the Title IV Programs. We believe that the likelihood of those limited circumstances occurring is remote. Our guarantee and purchase obligations under the PEAKS Program remain in effect until the PEAKS Senior Debt and the PEAKS Trust’s fees and expenses are paid in full. At such time, we will be entitled to repayment of the amount of any payments made under our guarantee and payment of the Subordinated Note, in each case only to the extent of available funds remaining in the PEAKS Trust.

We entered into the PEAKS Program to offer our students another source of private education loans that they could use to help pay their education costs owed to us and to supplement the limited amount of private education loans available to our students under other private education loans programs, including the 2009 Loan Program. Under the PEAKS Program, our students had access to a greater amount of private education loans, which resulted in a reduction in the amount of internal financing that we provided to our students. No new private education loans were or will be originated under the PEAKS Program after July 2011, but immaterial amounts related to loans originated prior to that date were disbursed by the lender through March 2012.

On February 20, 2009, we entered into the 2009 Loan Program. In connection with the 2009 Loan Program, we entered into the 2009 RSA. Under the 2009 RSA, we guarantee the repayment of the principal amount (including capitalized origination fees) and accrued interest payable on any private education loans that are charged off above a certain percentage of the private education loans made under the 2009 Loan Program, based on the annual dollar volume. The total initial principal amount of private education loans that the 2009 Entity purchased under the 2009 Loan Program was approximately $141.0 million. No new private education loans were or will be made under the 2009 Loan Program after December 31, 2011, but immaterial amounts related to loans originated prior to that date were disbursed by the lender through June 2012. Our obligations under the 2009 RSA will remain in effect until all private education loans made under the 2009 Loan Program are paid in full or charged off. The standard repayment term for a private education loan made under the 2009 Loan Program is ten years, with repayment generally beginning six months after a student graduates or three months after a student withdraws or is terminated from his or her program of study.

Pursuant to the 2009 RSA, we are required to maintain collateral to secure our guarantee obligation in an amount equal to a percentage of the outstanding balance of private education loans disbursed to our students under the 2009 Loan Program. As of June 30, 2012, the total collateral maintained in a restricted bank account was not material. The 2009 RSA also requires that we comply with certain covenants, including that we maintain certain financial ratios which are measured on a quarterly basis. We were in compliance with these covenants as of June 30, 2012.

In addition, beginning in the second quarter of 2009, we have made advances to the 2009 Entity under the Revolving Note. We made the advances, which bear interest, so that the 2009 Entity could use those funds primarily to provide additional funding for the private education loans, instead of retaining the funds ourselves and providing internal student financing, which is non-interest bearing. The Revolving Note bears interest at a rate based on the prime rate plus an applicable margin. Substantially all of the assets of the third party serve as collateral for the Revolving Note. The Revolving Note is subject to customary terms and conditions and may be repaid at any time without penalty prior to its 2026 maturity date.

We also are a party to the 2007 RSA with a different lender for certain private education loans that were made to our students in 2007 and early 2008. We guarantee the repayment of any private education loans that the lender charges off above a certain percentage of the total dollar volume of private education loans made under the 2007 RSA. We will have the right to pursue repayment from the borrowers for those charged off private education loans under the 2007 RSA that we pay to the lender pursuant to our guarantee obligation. The 2007 RSA was terminated effective February 22, 2008, such that no private education loans have been or will be made under the 2007 RSA after that date. Based on information that we have received to date from the lender, we believe that the total original principal amount of private education loans made under the 2007 RSA, net of amounts refunded under those loans, was approximately $180.0 million. Our obligations under the 2007 RSA will remain in effect until all private education loans under the agreement are paid in full or charged off by the lender. The standard repayment term for a private education loan made under the 2007 RSA is ten years, with repayment generally beginning six months after a student graduates, withdraws or is terminated from his or her program of study.

 

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As of June 30, 2012, we had made guarantee payments that were not material under the RSAs. See Notes 8 and 11 of the Notes to Condensed Consolidated Financial Statements for further discussion of the PEAKS Program, the 2009 RSA and the 2007 RSA.

At the end of each reporting period, we assess whether we should recognize a contingent liability related to the various claims and contingencies that we are subject to, including those related to litigation, business transactions, guarantee arrangements and employee-related matters, among others. We record a liability for those claims and contingencies if it is probable that a loss will result and the amount of the loss can be reasonably estimated. Although we believe that our estimates related to any claims and contingencies are reasonable, we cannot make any assurances with regard to the accuracy of our estimates, and actual results could differ materially. As of June 30, 2012, our recorded liability for these claims and contingencies was approximately $41.6 million, the substantial majority of which pertained to our guarantee arrangements under the RSAs. Approximately $6.0 million of the recorded liability was included in Other current liabilities and approximately $35.6 million was included in Other liabilities on our Condensed Consolidated Balance Sheet as of June 30, 2012.

We review various factors when determining the amount to recognize as a contingent liability with respect to the guarantee arrangements under the RSAs at the end of each reporting period. The principal factor that we review is the repayment performance of the private education loans under each of the RSAs. As each portfolio of private education loans matures, additional data related to the performance of the loans and other information regarding the loans becomes available to us that we utilize to estimate the related contingent liability. In certain reporting periods, there have been disruptions in the servicing of a portion of the private education loans under the RSAs, which we believe has negatively impacted the repayment performance of those private education loans. We cannot predict with any certainty the extent to which the servicing disruptions may affect the repayment performance of those loans in future periods, or whether other servicing disruptions will occur in the future. If the effect of the servicing disruptions continues, additional servicing disruptions occur or other factors negatively impact the repayment performance of the private education loans under the RSAs, the contingent liability associated with those guarantees would increase.

Item 3. Quantitative and Qualitative Disclosures about Market Risk.

In the normal course of our business, we are subject to fluctuations in interest rates that could impact the cost of our financing activities. Our primary interest rate risk exposure results from changes in short-term interest rates and the LIBOR.

Changes in the LIBOR would affect the borrowing costs associated with our revolving credit facilities. We estimate that the market risk can best be measured by a hypothetical 100 basis point increase in the LIBOR. If such a hypothetical increase in the LIBOR were to occur, the effect on our results from operations and cash flow would not have been material for the three and six months ended June 30, 2012.

Item 4. Controls and Procedures.

(a) Evaluation of Disclosure Controls and Procedures.

We are responsible for establishing and maintaining disclosure controls and procedures (“DCP”) that are designed to ensure that information required to be disclosed by us in the reports filed by us under the Exchange Act is: (a) recorded, processed, summarized and reported within the time periods specified in the SEC’s rules and forms; and (b) accumulated and communicated to our management, including our principal executive and principal financial officers, to allow timely decisions regarding required disclosures. In designing and evaluating our DCP, we recognize that any controls and procedures, no matter how well designed and implemented, can provide only reasonable assurance of achieving the desired control objectives, and that our management’s duties require it to make its best judgment regarding the design of our DCP. As of the end of our second fiscal quarter of 2012, we conducted an evaluation, under the supervision (and with the participation) of our management, including our Chief Executive Officer and Chief Financial Officer, of the effectiveness of the design and operation of our DCP pursuant to Rule 13a-15 of the Exchange Act. Based on that evaluation, our Chief Executive Officer and Chief Financial Officer concluded that our DCP were effective at the reasonable assurance level as of June 30, 2012.

(b) Changes in Internal Control Over Financial Reporting.

There were no changes in our internal control over financial reporting that occurred during our most recently completed fiscal quarter that have materially affected, or are reasonably likely to materially affect, our internal control over financial reporting.

PART II

OTHER INFORMATION

Item 1. Legal Proceedings.

We are subject to various claims and contingencies in the ordinary course of our business, including those related to litigation, business transactions, employee-related matters and taxes, among others. We cannot assure you of the ultimate outcome of any litigation involving us. Any litigation alleging violations of education or consumer protection laws and/or regulations, misrepresentation, fraud or deceptive practices may also subject our affected campuses to additional regulatory scrutiny.

 

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On November 3, 2010, a complaint in a securities class action lawsuit was filed against us and two of our current executive officers in the United States District Court for the Southern District of New York under the following caption: Operating Engineers Construction Industry and Miscellaneous Pension Fund, Individually and On Behalf of All Others Similarly Situated v. ITT Educational Services, Inc., et al. (the “Securities Litigation”). On January 21, 2011, the court named the Wyoming Retirement System as the lead plaintiff in the Securities Litigation. On April 1, 2011, an amended complaint was filed in the Securities Litigation under the following caption: In re ITT Educational Services, Inc. Securities and Shareholder Derivative Litigation. The amended complaint alleged, among other things, that:

 

   

the defendants violated Section 10(b) and 20(a) of the Exchange Act and Rule 10b-5 promulgated thereunder by creating and implementing a systemically predatory business model that operated as a fraud or deceit on purchasers of our common stock during the class period by misrepresenting our financials and future business prospects;

 

   

the defendants’ misrepresentations and material omissions caused our common stock to trade at artificially inflated prices throughout the class period; and

 

   

the market’s expectations were ultimately corrected on August 13, 2010 when the ED published the loan repayment rate of our students under a formula contained in proposed regulations published by the ED on July 26, 2010.

The putative class period in this action was from October 23, 2008 through August 13, 2010. The plaintiff sought, among other things, the designation of this action as a class action, and an award of unspecified compensatory damages, interest, costs, expenses, attorneys’ fees and expert fees.

On November 12, 2010, a complaint in a shareholder derivative lawsuit was filed against three of our current executive officers, all of our current Directors and one of our former Directors in the United States District Court for the Southern District of New York under the following caption: Antonio Cosing, Derivatively and On Behalf of ITT Educational Services, Inc. v. Kevin M. Modany, et al. (the “Cosing Lawsuit”). The complaint alleged, among other things, that from October 23, 2008 through August 13, 2010, the defendants breached their fiduciary duties to us, abused their ability to control and influence us, grossly mismanaged us, caused us to waste corporate assets and were unjustly enriched, by:

 

   

causing us to encourage our students to lie on their financial aid applications;

 

   

causing us to lie to our students concerning the costs, quality, value and duration of their programs of study, their job prospects and income expectations upon graduation, and the availability of student financial aid;

 

   

causing us to issue a series of materially false and misleading statements regarding our financial results; and

 

   

causing or allowing us to lack the requisite internal controls.

The complaint sought:

 

   

unspecified damages;

 

   

extraordinary equitable and/or injunctive relief, including attaching, impounding, imposing a constructive trust on or otherwise restricting the proceeds of, the defendants’ assets;

 

   

restitution;

 

   

disgorgement of profits, benefits and other compensation received by the individual defendants;

 

   

an order directing us to take all necessary actions to reform and improve our corporate governance and internal procedures; and

 

   

costs and disbursements, including attorneys’, accountants’ and experts’ fees, costs and expenses.

On December 14, 2010, the Cosing Lawsuit was consolidated into the Securities Litigation.

On December 3, 2010, another complaint in a shareholder derivative lawsuit was filed against two of our current executive officers, all of our current Directors and one of our former Directors in the United States District Court for the Southern District of New York under the following caption: J. Kent Gregory, derivatively on behalf of ITT Educational Services, Inc. v. Kevin M. Modany, et al. (the “Gregory Lawsuit”). The complaint alleged, among other things, that the defendants breached their fiduciary duties to us, were unjustly enriched by us and misappropriated information about us, by:

 

   

knowingly, recklessly or negligently signing or approving the issuance of false annual and quarterly financial statements about us that misrepresented and failed to disclose material information about our growth prospects, tuition costs and student loan repayment rates;

 

   

receiving compensation from us that was tied to our performance during times when they knew or should have known that our financial results and performance were artificially inflated; and

 

   

selling our stock when they knew that our financial results were overstated.

The complaint sought:

 

   

unspecified damages;

 

   

an order directing us to take all necessary actions to reform and improve our corporate governance and internal procedures;

 

   

restitution;

 

   

disgorgement of profits, benefits and other compensation received by the individual defendants; and

 

   

costs and disbursements, including reasonable attorneys’, accountants’ and experts’ fees, costs and expenses.

 

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The Gregory Lawsuit was consolidated into the Cosing Lawsuit on December 13, 2010 and further consolidated into the Securities Litigation on December 14, 2010.

On March 30, 2012, all of the claims alleged in the Securities Litigation were dismissed with prejudice, including the claims in the Cosing Lawsuit and Gregory Lawsuit.

On November 22, 2010, another complaint in a shareholder derivative lawsuit was filed against seven of our current and former officers, all of our current Directors and one of our former Directors in the United States District Court for the Southern District of Indiana under the following caption: Roger B. Orensteen, derivatively on behalf of ITT Educational Services, Inc. v. Kevin M. Modany, et al (the “Orensteen Lawsuit”). The complaint alleged, among other things, that, from January 2008 through August 2010, the defendants violated Sections 10(b) and 20(a) of the Exchange Act, breached their fiduciary duties to us, abused their ability to control and influence us, grossly mismanaged us, caused us to waste corporate assets and were unjustly enriched, by:

 

   

employing devices, schemes and artifices to defraud;

 

   

making untrue statements of material facts, or omitting material facts necessary in order to make the statements made, in light of the circumstances under which they were made, not misleading;

 

   

engaging in acts, practices and a course of business that operated as a fraud or deceit upon the plaintiff or others similarly situated in connection with their purchase of our common stock;

 

   

selling shares of our stock while in possession of material adverse, non-public information;

 

   

causing us to repurchase shares of our stock at artificially inflated prices;

 

   

reviewing and approving false financial statements with respect to us and ineffective internal control over our financial reporting;

 

   

receiving compensation based on artificially inflated financial results and other performance metrics; and

 

   

subjecting us to hundreds of millions of dollars of liability.

The complaint sought:

 

   

unspecified damages;

 

   

an order directing us to take all necessary actions to reform and improve our corporate governance and internal procedures;

 

   

restitution;

 

   

disgorgements of profits, benefits and other compensation received by the individual defendants; and

 

   

costs and disbursements, including attorneys’, accountants’ and experts’ fees, costs and expenses.

On June 27, 2012, the Orensteen Lawsuit was dismissed without prejudice.

Although the derivative actions were brought nominally on behalf of us, we incurred defense costs and other expenses in connection with the derivative lawsuits. There can be no assurance that the ultimate outcome of derivative actions, federal or state securities law claims or other actions would not have a material adverse effect on our financial condition, results of operations or cash flows.

The current and former officers named in one or more of the securities class action and shareholder derivative lawsuits described above included: Jeffrey R. Cooper, Clark D. Elwood, Nina F. Esbin, Eugene W. Feichtner, Daniel M. Fitzpatrick, Kevin M. Modany and Martin Van Buren. The former Director named in the shareholder derivative lawsuits described above is Lloyd G. Waterhouse.

Certain of our current and former officers and Directors may become a party in certain actions. Our By-laws and Restated Certificate of Incorporation obligate us to indemnify our officers and Directors to the fullest extent permitted by Delaware law, provided that their conduct complied with certain requirements. We are obligated to advance defense costs to our officers and Directors, subject to the individual’s obligation to repay such amount if it is ultimately determined that the individual was not entitled to indemnification. In addition, our indemnity obligation can, under certain circumstances, include indemnifiable judgments, penalties, fines and amounts paid in settlement in connection with those actions.

Item 1A. Risk Factors.

You should carefully consider the risks and uncertainties we describe in this Report, our Annual Report on Form 10-K for the fiscal year ended December 31, 2011 and our Quarterly Report on Form 10-Q for the fiscal quarter ended March 31, 2012 before deciding to invest in, or retain, shares of our common stock. These are not the only risks and uncertainties that we face. Additional risks and uncertainties that we do not currently know about, we currently believe are immaterial or we have not predicted may also harm our business operations or adversely affect us. If any of these risks or uncertainties actually occurs, our business, financial condition, results of operations, cash flows or stock price could be materially adversely affected. Except as set forth below, there have been no material changes from the risk factors discussed in our Annual Report on Form 10-K for the fiscal year ended December 31, 2011 and our Quarterly Report on Form 10-Q for the fiscal quarter ended March 31, 2012.

 

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If the ED’s vacated gainful employment regulations are reinstituted and if any of our programs of study fail to qualify as programs that lead to gainful employment in a recognized occupation under those regulations, students attending those programs of study will be unable to receive funds from Title IV Programs to help pay their education costs. On June 13, 2011, the ED issued final regulations that were to become effective on July 1, 2012, specifying requirements related to a program of study that leads to gainful employment in a recognized occupation (the “GE Requirements”). On June 30, 2012, the U.S. District Court for the District of Columbia vacated all of the GE Requirements, except for those pertaining to certain institutional disclosures. We cannot assure you that all of the GE Requirements will not be reinstituted, whether through an appellate court decision that overturns the District Court’s ruling, the promulgation of new regulations by the ED or otherwise, which could have a material adverse effect on our financial condition, results of operations and cash flows. Under the vacated GE Requirements, if any of our programs of study had failed to satisfy those requirements for three out of four federal fiscal years (“FFYs”), that program would have been deemed ineligible under Title IV Programs. Students cannot obtain financial aid under Title IV Programs to help pay their education costs associated with attending ineligible programs of study. A program of study would have satisfied the vacated GE Requirements, if:

 

   

the program’s annual loan repayment rate, as defined and calculated by the ED, was at least 35%;

 

   

the program’s graduates’ median annual loan payment, as calculated by the ED, was less than or equal to:

 

   

30% of discretionary income; or

 

   

12% of annual earnings; or

 

   

the data needed to determine whether the program satisfies the GE Requirements were not available to the ED.

The first FFY that a program of study was required to satisfy the vacated GE Requirements was FFY 2012 (i.e., October 1, 2011 through September 30, 2012). Under the vacated GE Requirements, a program of study offered by an institution was defined based on its credential level (e.g., diploma, associate degree, bachelor degree, master’s degree, etc.) and Classification of Institutional Program (“CIP”) code. Different programs of study offered by an institution that were at the same credential level and had the same CIP code were combined and treated as a single program under the vacated GE Requirements.

Subject to certain adjustments, limitations and exclusions:

 

   

a program of study’s loan repayment rate for a particular FFY was defined and calculated by the ED by dividing:

 

   

the original outstanding principal balance of Federal Family Education Loan (“FFEL”) and William D. Ford Federal Direct Loan (“FDL”) program loans owed by students for attendance in that program of study on the date those loans first entered repayment during the applicable earlier FFYs (the “OOPB”); into

 

   

the amount of the OOPB represented by those loans that had never been in default and either:

 

   

been paid in full by a borrower; or

 

   

had the balance reduced during the most recently completed FFY to an amount that was less than the outstanding balance at the beginning of that FFY; and

 

   

the annual loan payment for a program of study was calculated by the ED using:

 

   

the median loan debt of students who completed the program of study during the applicable earlier FFYs;

 

   

the annual interest rate on FDL program unsubsidized loans; and

 

   

a 10-year amortization schedule for a program of study that led to a diploma or associate degree, or a 15-year amortization schedule for a program of study that led to a bachelor or master’s degree.

The median loan debt included FFEL and FDL program loans, private education loans and institutional financing received by those students for attendance in any program of study offered by the institution. The ED would have determined whether the annual loan payment for a program of study in a particular FFY was less than or equal to:

 

   

30% of discretionary income by dividing:

 

   

the higher of the most currently available mean or median annual earnings of the students who completed the program during the applicable earlier FFYs (the “Applicable Earnings”), less 1.5 times the amount of the most current Poverty Guidelines for a single person in the continental United States; into

 

   

the annual loan payment; and

 

   

12 % of annual earnings by dividing:

 

   

the Applicable Earnings; into

 

   

the annual loan payment.

The Applicable Earnings were to be obtained by the ED from the Social Security Administration or another federal agency (collectively, the “SSA”). If a program’s graduates’ median annual loan payment as calculated by the ED using Applicable Earnings obtained from the SSA was greater than 30% of discretionary income and 12% of annual earnings, however, an institution could have demonstrated that the program satisfied the annual loan payment requirements by recalculating the discretionary income and annual earnings percentages using alternative earnings from:

 

   

the Bureau of Labor Statistics (“BLS”), but for only FFYs 2012, 2013 and 2014;

 

   

an institutional survey conducted in accordance with standards of the National Center for Education Statistics; or

 

   

a state-sponsored data system.

 

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An institution could have used BLS earnings data to recalculate the discretionary income and annual earnings percentages with respect to a program of study, only if the institution:

 

   

identified and provided documentation to the ED of the occupation by Standard Occupational Classification (“SOC”) code(s) issued by the BLS in which more than 50% of the students who completed the program during the applicable earlier FFYs were employed, and that number of students was more than 30;

 

   

used the most current BLS earnings data at the 25th percentile for the identified SOC code (or the weighted average of that data for each SOC code, if more than one SOC code was identified); and

 

   

submitted to the ED, upon its request, all of the employment and other records that supported the SOC code(s) identified with the occupations in which those students were employed.

Depending on how the ED interpreted and applied the vacated GE Requirements, if any of our programs had failed the annual loan payment requirement using the Applicable Earnings from the SSA, we believe that the alternative BLS earnings may have provided us with an opportunity to demonstrate that the program satisfied the annual loan payment requirement for FFYs 2012, 2013 and 2014.

If a program of study failed to satisfy the vacated GE Requirements for:

 

   

one FFY, the institution was required to provide a warning to current and prospective students that explained the vacated GE Requirements, identified the amount by which the program did not satisfy the vacated GE Requirements and described the actions that the institution planned to take to improve the program’s performance under the vacated GE Requirements (the “Debt Warning”) and could not enroll a prospective student until three days after the Debt Warning was given to the prospective student;

 

   

two of the three most recently completed FFYs, the institution was required to:

 

   

provide the Debt Warning to current and prospective students;

 

   

prominently display the Debt Warning on its website;

 

   

include the Debt Warning in all of its promotional materials; and

 

   

enhance the Debt Warning with additional information, including, without limitation:

 

   

the risks associated with enrolling or continuing in the program;

 

   

a timeline and options available to the students, if the institution planned to discontinue the program;

 

   

a statement that a student who enrolled or continued in the program should expect to have difficulty repaying his or her student loans; and

 

   

resources that would have been available to students to research other educational options and compare program costs; and

 

   

three out of four FFYs, the program of study would become ineligible under the Title IV Programs.

An institution could not seek to reestablish the eligibility of a program of study that became ineligible for failure to satisfy the vacated GE Requirements or establish the eligibility of a substantially similar program of study, until the end of the third FFY following the FFY that the program of study became ineligible. A program of study would have been substantially similar, if it had the same credential level and first four digits of the CIP code as that of the ineligible program. If an institution voluntarily discontinued a program of study that failed to satisfy the vacated GE Requirements for one or two consecutive FFYs, the institution could not seek to reestablish the eligibility of that program of study until the end of the second or third FFY following the FFY in which the institution notified the ED that the institution was relinquishing Title IV Program eligibility for that program of study, depending on when the institution provides such notice to the ED.

There were many open questions and interpretive issues related to the GE Requirements before most were vacated, including questions as to the ability of institutions to obtain and verify the information needed to calculate the applicable metrics. In addition, the continuing eligibility of our programs of study under Title IV Programs were at risk under the vacated GE Requirements due to factors beyond our control, such as:

 

   

changes in the income level of persons employed in specific occupations or sectors;

 

   

changes in student mix to persons requiring higher amounts of student loans to complete their programs;

 

   

changes in student loan repayment rates, including the usage of deferments and forbearances;

 

   

changes in student loan delinquency rates;

 

   

changes in the nation’s economy, which may affect graduate employment, graduate earnings and, therefore, the ability of graduates to repay their student loans;

 

   

personal employment decisions made by our students;

 

   

increases in interest rates; and

 

   

changes in the ED’s interpretation of any element of the vacated GE Requirements that would have resulted in a more expansive or harsh enforcement than was presented.

In addition, providing Debt Warnings to current and prospective students could have had an adverse impact on the level of interest and enrollment in those programs of study.

 

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We cannot predict with certainty the impact that the vacated GE Requirements would have had on our operations. In response to the vacated GE Requirements, we made significant changes to the programs of study that we offer. The vacated GE Requirements also put downward pressure on tuition prices, to help prevent students from incurring debt that exceeded the levels required for a program to remain eligible under Title IV Programs. This could, in turn, increase the percentage of our revenue that is derived from Title IV Programs and, therefore, adversely impact our compliance with other ED regulations. We had also begun to limit enrollment in certain programs of study and substantially increased our efforts to promote student loan repayment. The continuation of any or all of these factors could reduce our enrollment and/or increase our cost of doing business, perhaps materially, which could have a material adverse effect on our business, prospects, financial condition, results of operations, cash flows and stock price.

Government and regulatory agencies and third parties may bring investigations, claims or actions against us based on alleged violations of the extensive regulatory requirements applicable to our campuses, which could require us to pay monetary damages, receive other sanctions and expend significant resources to defend those claims or actions. Due to the highly regulated nature of the postsecondary education industry, we are subject to investigations and claims of non-compliance with regulatory standards and other actions brought by regulatory agencies, students, shareholders and other parties. If the results of any of those investigations and claims are unfavorable to us, we may be required to pay money damages or be subject to fines, penalties, injunctions, operational limitations, loss of eligibility to participate in federal or state financial aid programs, debarments, additional oversight and reporting, or other civil and criminal sanctions. Those sanctions could have a material adverse effect on our financial condition, results of operations and cash flows. Even if we satisfactorily resolve the issues raised by those types of claims, we may have to divert significant financial and management resources from our ongoing business operations to address and defend those claims, which could have a material adverse effect on our financial condition, results of operations and cash flows. Adverse publicity regarding any of those claims could also negatively affect our business and the market proice of our common stock.

On May 18, 2012, we received a Civil Investigative Demand (“CID”) from the U.S. Consumer Financial Protection Bureau (“CFPB”). The CID provides that the purpose of the investigation is, in part, “to determine whether for-profit post-secondary companies, student loan origination and servicing providers, or other unnamed persons have engaged or are engaging in unlawful acts or practices relating to the advertising, marketing, or origination of private student loans.” The CID contains broad requests for production of documents, answers to interrogatories and written reports related to private education loans made to our students and many other aspects of our business. We have provided documentation and other information to the CFPB, while preserving our rights to object to its inquiry. We believe that our acts and practices relating to private student loans are lawful.

 

Item 2. Unregistered Sales of Equity Securities and Use of Proceeds.

The following table sets forth information regarding purchases made by us of shares of our common stock on a monthly basis in the three months ended June 30, 2012:

Issuer Purchases of Equity Securities

 

Period

   Total
Number of
Shares
Purchased
     Average
Price Paid
per Share
     Total Number of
Shares Purchased
as Part of Publicly
Announced Plans
or Programs (1)
     Maximum
Number of Shares
that May Yet Be
Purchased Under
the Plans or
Programs (1)
 

April 1, 2012 through April 30, 2012

     928,500       $ 65.98         928,500         7,771,025   

May 1, 2012 through May 31, 2012

     0         —           0         7,771,025   

June 1, 2012 through June 30, 2012

     0         —           0         7,771,025   
  

 

 

       

 

 

    

Total

     928,500       $ 65.98         928,500      
  

 

 

    

 

 

    

 

 

    

 

(1) The shares that remained available for repurchase under the Repurchase Program were 7,771,025 as of June 30, 2012. Our Board of Directors has authorized us to repurchase the following number of shares of our common stock pursuant to the Repurchase Program:

 

    Number of Shares    

 

    Board Authorization Date    

2,000,000

  April 1999

2,000,000

  April 2000

5,000,000

  October 2002

5,000,000

  April 2006

5,000,000

  April 2007

5,000,000

  January 2010

5,000,000

  October 2010

5,000,000

  July 2011

5,000,000

  April 2012

 

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The terms of the Repurchase Program provide that we may repurchase shares of our common stock, from time to time depending on market conditions and other considerations, in the open market or through privately negotiated transactions in accordance with Rule 10b-18 of the Exchange Act. Unless earlier terminated by our Board of Directors, the Repurchase Program will expire when we repurchase all shares authorized for repurchase thereunder.

 

Item 6. Exhibits.

A list of exhibits required to be filed as part of this report is set forth in the Index to Exhibits, which immediately precedes the exhibits, and is incorporated herein by reference.

 

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SIGNATURES

Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned thereunto duly authorized.

 

    ITT Educational Services, Inc.
Date: July 27, 2012     By:   /s/ Daniel M. Fitzpatrick
     

Daniel M. Fitzpatrick

      Executive Vice President, Chief Financial Officer
      (Duly Authorized Officer, Principal Financial Officer and Principal Accounting Officer)


Table of Contents

INDEX TO EXHIBITS

 

Exhibit
No.

  

Description

3.1   

Restated Certificate of Incorporation, as Amended to Date (incorporated herein by reference from the same exhibit number to ITT/ESI’s 2005 second fiscal quarter report on Form 10-Q)

3.2   

Restated By-Laws, as Amended to Date (incorporated herein by reference from the same exhibit number to ITT/ESI’s Current Report on Form 8-K filed on July 22, 2011)

10.1   

First Amendment of ESI Pension Plan

31.1   

Chief Executive Officer’s Certification Pursuant to Rule 13a-14(a)/15d-14(a) of the Securities Exchange Act of 1934

31.2   

Chief Financial Officer’s Certification Pursuant to Rule 13a-14(a)/15d-14(a) of the Securities Exchange Act of 1934

32.1   

Chief Executive Officer’s Certification Pursuant to 18 U.S.C. Section 1350

32.2   

Chief Financial Officer’s Certification Pursuant to 18 U.S.C. Section 1350

101   

The following materials from ITT Educational Services, Inc.’s Quarterly Report on Form 10-Q for the quarter ended June 30, 2012, formatted in XBRL (eXtensible Business Reporting language):

(i) Condensed Consolidated Balance Sheets; (ii) Condensed Consolidated Statements of Income; (iii) Condensed Consolidated Statements of Comprehensive Income; (iv) Condensed Consolidated Statements of Cash Flows; (v) Condensed Consolidated Statements of Shareholders’ Equity; and (vi) Notes to Condensed Consolidated Financial Statements

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