UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-Q
x QUARTERLY REPORT PURSUANT TO SECTION 13 or 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934
For the quarterly period ended March 31, 2012
or
o TRANSITION REPORT PURSUANT TO Section 13 or 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934
For the transition period from to .
Commission file number: 000-11688
US ECOLOGY, INC.
(Exact name of registrant as specified in its charter)
Delaware |
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95-3889638 |
(State or other jurisdiction of incorporation or |
|
(I.R.S. Employer Identification No.) |
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300 E. Mallard Dr., Suite 300 |
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Boise, Idaho |
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83706 |
(Address of principal executive offices) |
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(Zip Code) |
Registrants telephone number, including area code: (208) 331-8400
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 o
Indicate by check mark whether the registrant has submitted electronically and posted on its corporate Web site, if any, every Interactive Data File required to be submitted and posted pursuant to Rule 405 of Regulation S-T (§232.405 of this chapter) during the preceding 12 months (or for such shorter period that the registrant was required to submit and post such files). Yes x No o
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company. See the definitions of large accelerated filer, accelerated filer and smaller reporting company in Rule 12b-2 of the Exchange Act.
Large accelerated filer o |
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Accelerated filer x |
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Non-accelerated filer o |
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Smaller reporting company o |
(Do not check if a smaller reporting company) |
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Indicate by check mark whether the registrant is a shell company (as defined in Rule 12b-2 of the Act). Yes o No x
At May 4, 2012, there were 18,322,914 shares of the registrants Common Stock outstanding.
US ECOLOGY, INC.
FORM 10-Q
PART I - FINANCIAL INFORMATION
US ECOLOGY, INC.
(Unaudited)
(In thousands, except par value amount)
|
|
March 31, 2012 |
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December 31, 2011 |
| ||
Assets |
|
|
|
|
| ||
|
|
|
|
|
| ||
Current Assets: |
|
|
|
|
| ||
Cash and cash equivalents |
|
$ |
6,398 |
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$ |
4,289 |
|
Receivables, net |
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22,323 |
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29,818 |
| ||
Prepaid expenses and other current assets |
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2,353 |
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2,185 |
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Income taxes receivable |
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142 |
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181 |
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Deferred income taxes |
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491 |
|
964 |
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Total current assets |
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31,707 |
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37,437 |
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|
|
|
|
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Property and equipment, net |
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99,886 |
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99,975 |
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Restricted cash |
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4,115 |
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4,115 |
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Intangible assets, net |
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39,798 |
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39,238 |
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Goodwill |
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21,692 |
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21,200 |
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Other assets |
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529 |
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623 |
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Total assets |
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$ |
197,727 |
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$ |
202,588 |
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|
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Liabilities And Stockholders Equity |
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|
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Current Liabilities: |
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|
|
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Accounts payable |
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$ |
4,752 |
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$ |
4,669 |
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Deferred revenue |
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3,325 |
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3,574 |
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Accrued liabilities |
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9,472 |
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10,569 |
| ||
Accrued salaries and benefits |
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3,887 |
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5,382 |
| ||
Income taxes payable |
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2,406 |
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1,510 |
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Current portion of closure and post-closure obligations |
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2,886 |
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2,890 |
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Current portion of long-term debt |
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2 |
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71 |
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Total current liabilities |
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26,730 |
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28,665 |
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|
|
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Long-term closure and post-closure obligations |
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14,728 |
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14,448 |
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Reducing revolving line of credit |
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35,000 |
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40,500 |
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Other long-term liabilities |
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143 |
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150 |
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Unrecognized tax benefits |
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457 |
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454 |
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Deferred income taxes |
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18,363 |
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18,208 |
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Total liabilities |
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95,421 |
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102,425 |
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|
|
|
|
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Commitments and contingencies |
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|
|
|
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|
|
|
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Stockholders Equity: |
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Common stock $0.01 par value, 50,000 authorized; 18,323 and 18,320 shares issued, respectively |
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183 |
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183 |
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Additional paid-in capital |
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62,473 |
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62,455 |
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Retained earnings |
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40,439 |
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39,197 |
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Treasury stock, at cost, 78 and 93 shares, respectively |
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(1,308 |
) |
(1,555 |
) | ||
Accumulated other comprehensive income (loss) |
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519 |
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(117 |
) | ||
Total stockholders equity |
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102,306 |
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100,163 |
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Total liabilities and stockholders equity |
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$ |
197,727 |
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$ |
202,588 |
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The accompanying notes are an integral part of these financial statements.
US ECOLOGY, INC.
CONSOLIDATED STATEMENTS OF OPERATIONS
(Unaudited)
(In thousands, except per share amounts)
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Three Months Ended March 31, |
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2012 |
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2011 |
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|
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Revenue |
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$ |
33,013 |
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$ |
34,143 |
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Direct operating costs |
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17,638 |
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17,690 |
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Transportation costs |
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3,299 |
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6,984 |
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|
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Gross profit |
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12,076 |
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9,469 |
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|
|
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Selling, general and administrative expenses |
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5,605 |
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4,828 |
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|
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|
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Operating income |
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6,471 |
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4,641 |
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|
|
|
|
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Other income (expense): |
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|
|
|
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Interest income |
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5 |
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10 |
| ||
Interest expense |
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(224 |
) |
(446 |
) | ||
Foreign currency gain |
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1,091 |
|
1,250 |
| ||
Other |
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80 |
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99 |
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|
|
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|
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Total other income |
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952 |
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913 |
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Income before income taxes |
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7,423 |
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5,554 |
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Income tax expense |
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2,900 |
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2,294 |
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Net income |
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$ |
4,523 |
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$ |
3,260 |
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Earnings per share: |
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Basic |
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$ |
0.25 |
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$ |
0.18 |
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Diluted |
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$ |
0.25 |
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$ |
0.18 |
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Shares used in earnings per share calculation: |
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Basic |
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18,218 |
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18,186 |
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Diluted |
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18,254 |
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18,210 |
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Dividends paid per share |
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$ |
0.18 |
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$ |
0.18 |
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The accompanying notes are an integral part of these financial statements.
US ECOLOGY, INC.
CONSOLIDATED STATEMENTS OF COMPREHENSIVE INCOME
(Unaudited)
(In thousands)
|
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Three Months Ended March 31, |
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2012 |
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2011 |
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Net income |
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$ |
4,523 |
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$ |
3,260 |
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Other comprehensive income: |
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|
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Foreign currency translation |
|
636 |
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682 |
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|
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Comprehensive income |
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$ |
5,159 |
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$ |
3,942 |
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The accompanying notes are an integral part of these financial statements.
US ECOLOGY, INC.
CONSOLIDATED STATEMENTS OF CASH FLOWS
(Unaudited)
(In thousands)
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Three Months Ended March 31, |
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2012 |
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2011 |
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Cash flows from operating activities: |
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Net income |
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$ |
4,523 |
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$ |
3,260 |
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Adjustments to reconcile net income to net cash provided by operating activities: |
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|
|
|
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Depreciation and amortization of property and equipment |
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3,223 |
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3,080 |
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Amortization of intangible assets |
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350 |
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355 |
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Accretion of closure and post-closure obligations |
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335 |
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323 |
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Unrealized foreign currency gain |
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(1,201 |
) |
(1,303 |
) | ||
Deferred income taxes |
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338 |
|
670 |
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Stock-based compensation expense |
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203 |
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203 |
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Unrecognized tax benefits |
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3 |
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|
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Net loss on sale of property and equipment |
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22 |
|
2 |
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Changes in assets and liabilities: |
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|
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Receivables |
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7,624 |
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8,789 |
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Income taxes receivable |
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42 |
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(252 |
) | ||
Other assets |
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(66 |
) |
(294 |
) | ||
Accounts payable and accrued liabilities |
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(967 |
) |
(1,149 |
) | ||
Deferred revenue |
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(295 |
) |
537 |
| ||
Accrued salaries and benefits |
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(1,526 |
) |
(1,147 |
) | ||
Income tax payable |
|
896 |
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(784 |
) | ||
Closure and post-closure obligations |
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(82 |
) |
(81 |
) | ||
Net cash provided by operating activities |
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13,422 |
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12,209 |
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Cash flows from investing activities: |
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|
|
|
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Purchases of property and equipment |
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(2,386 |
) |
(4,087 |
) | ||
Proceeds from sale of property and equipment |
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66 |
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11 |
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Net cash used in investing activities |
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(2,320 |
) |
(4,076 |
) | ||
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|
|
|
|
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Cash flows from financing activities: |
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|
|
|
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Payments on reducing revolving line of credit |
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(8,500 |
) |
(12,500 |
) | ||
Dividends paid |
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(3,282 |
) |
(3,275 |
) | ||
Proceeds from reducing revolving line of credit |
|
3,000 |
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5,000 |
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Other |
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(243 |
) |
(3 |
) | ||
Net cash used in provided by financing activities |
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(9,025 |
) |
(10,778 |
) | ||
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|
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|
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Effect of foreign exchange rate changes on cash |
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32 |
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12 |
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|
|
|
|
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Increase (decrease) in cash and cash equivalents |
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2,109 |
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(2,633 |
) | ||
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|
|
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|
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Cash and cash equivalents at beginning of period |
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4,289 |
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6,342 |
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|
|
|
|
|
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Cash and cash equivalents at end of period |
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$ |
6,398 |
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$ |
3,709 |
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|
|
|
|
|
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Supplemental Disclosures |
|
|
|
|
| ||
Income taxes paid, net of receipts |
|
$ |
1,612 |
|
$ |
2,692 |
|
Interest paid |
|
$ |
236 |
|
$ |
258 |
|
Non-cash investing and financing activities: |
|
|
|
|
| ||
Capital expenditures in accounts payable |
|
$ |
916 |
|
$ |
947 |
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Restricted stock issued from treasury shares |
|
$ |
247 |
|
$ |
299 |
|
The accompanying notes are an integral part of these financial statements.
US ECOLOGY, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(Unaudited)
NOTE 1. GENERAL
Basis of Presentation
The accompanying unaudited consolidated financial statements include the results of operations, financial position and cash flows of US Ecology, Inc. and its wholly-owned subsidiaries. All significant intercompany balances have been eliminated. Throughout these financial statements words such as we, us, our, US Ecology and the Company refer to US Ecology, Inc. and its subsidiaries.
In the opinion of management, the accompanying unaudited consolidated financial statements include all adjustments necessary to present fairly, in all material respects, the results of the Company for the periods presented. These consolidated financial statements have been prepared by the Company pursuant to the rules and regulations of the Securities and Exchange Commission (SEC). Certain information and footnote disclosures normally included in financial statements prepared in accordance with accounting principles generally accepted in the United States (GAAP) have been omitted pursuant to the rules and regulations of the SEC. These consolidated financial statements should be read in conjunction with the consolidated financial statements and accompanying notes included in the Companys Annual Report on Form 10-K for the fiscal year ended December 31, 2011. The results of operations and cash flows for the three months ended March 31, 2012 are not necessarily indicative of results to be expected for the entire fiscal year.
The Companys Consolidated Balance Sheet as of December 31, 2011 has been derived from the Companys audited Consolidated Balance Sheet as of that date.
Use of Estimates
The preparation of financial statements in conformity with GAAP requires management to make estimates and assumptions that affect the reported amounts of assets and liabilities and the disclosure of contingent assets and liabilities at the date of the financial statements, as well as the reported amounts of revenue and expenses during the reporting period. Actual results could differ materially from the estimates and assumptions that we use in the preparation of our financial statements. As it relates to estimates and assumptions in amortization rates and environmental obligations, significant engineering, operations and accounting judgments are required. We review these estimates and assumptions no less than annually. In many circumstances, the ultimate outcome of these estimates and assumptions will not be known for decades into the future. Actual results could differ materially from these estimates and assumptions due to changes in applicable regulations, changes in future operational plans and inherent imprecision associated with estimating environmental impacts far into the future.
Financial Instruments
Cash on deposit, short-term investments, accounts receivable, short-term borrowings, accounts payable and accrued liabilities as presented in the consolidated financial statements approximate fair value because of the short-term nature of these instruments. The carrying amount of our long-term debt approximates fair value because interest rates are variable and, accordingly, approximate current market rates for instruments with similar risk and maturities. Restricted cash balances represent funds held in third- party managed trust accounts as collateral for our financial assurance obligations for post-closure activities at our non-operating facilities. Restricted cash balances are maintained by third-party trustees and are invested in money market accounts. The balances are adjusted monthly to fair market value based on quoted prices in active markets for identical assets.
Recently Issued Accounting Pronouncements
In June 2011, the Financial Accounting Standards Board (FASB) issued Accounting Standards Update (ASU) No. 2011-05, Comprehensive Income (Topic 220): Presentation of Comprehensive Income, requiring an entity to present components of net income and other comprehensive income in one continuous statement, referred to as the statement of comprehensive income, or in two separate but consecutive statements. The new guidance eliminates the current option to report other comprehensive income and its components in the statement of changes in equity. While the new guidance changes the presentation of comprehensive income, there are no changes to the components that are recognized in net income or other comprehensive income under current accounting guidance. This new guidance is effective for fiscal years ending after December 15, 2012, and interim periods within those years, with early adoption permitted. The Company adopted this ASU in the first quarter of fiscal 2012 and elected to present the components of net income and other comprehensive income in two separate but consecutive statements.
NOTE 2. ACCUMULATED OTHER COMPREHENSIVE INCOME (LOSS)
Changes in accumulated other comprehensive income (loss) consisted of the following:
|
|
Accumulated Other |
| |
|
|
Comprehensive |
| |
$s in thousands |
|
Income (Loss) |
| |
Balance at December 31, 2010 |
|
$ |
676 |
|
Foreign currency translation |
|
(793 |
) | |
Balance at December 31, 2011 |
|
(117 |
) | |
Foreign currency translation |
|
636 |
| |
Balance at March 31, 2012 |
|
$ |
519 |
|
NOTE 3. CONCENTRATIONS AND CREDIT RISK
Major Customers
No customer accounted for more than 10% of total revenue for the three months ended March 31, 2012. For the three months ended March 31, 2011, the U.S. Army Corps of Engineers (USACE) accounted for 11% of total revenue. No other customer accounted for more than 10% of total revenue for the three months ended March 31, 2011.
No customer accounted for more than 10% of total trade receivables as of March 31, 2012. General Electric, Inc. accounted for approximately 18% of total trade receivables as of December 31, 2011. No other customers accounted for more than 10% of total trade receivables as of December 31, 2011.
Credit Risk Concentration
We maintain most of our cash with nationally recognized financial institutions like Wells Fargo Bank, National Association (Wells Fargo). Substantially all balances are uninsured and are not used as collateral for other obligations. Concentrations of credit risk on accounts receivable are believed to be limited due to the number, diversification and character of the obligors and our credit evaluation process.
NOTE 4. RECEIVABLES
Receivables consisted of the following:
|
|
March 31, |
|
December 31, |
| ||
$s in thousands |
|
2012 |
|
2011 |
| ||
|
|
|
|
|
| ||
Trade |
|
$ |
20,738 |
|
$ |
27,229 |
|
Unbilled revenue |
|
941 |
|
1,500 |
| ||
Other |
|
884 |
|
1,400 |
| ||
Total receivables |
|
22,563 |
|
30,129 |
| ||
Allowance for doubtful accounts |
|
(240 |
) |
(311 |
) | ||
Receivables, net |
|
$ |
22,323 |
|
$ |
29,818 |
|
NOTE 5. PROPERTY AND EQUIPMENT
Property and equipment consisted of the following:
|
|
March 31, |
|
December 31, |
| ||
$s in thousands |
|
2012 |
|
2011 |
| ||
|
|
|
|
|
| ||
Cell development costs |
|
$ |
61,981 |
|
$ |
61,749 |
|
Land and improvements |
|
14,028 |
|
13,929 |
| ||
Buildings and improvements |
|
51,813 |
|
51,409 |
| ||
Railcars |
|
17,375 |
|
17,375 |
| ||
Vehicles and other equipment |
|
34,379 |
|
33,594 |
| ||
Construction in progress |
|
5,517 |
|
4,031 |
| ||
Total property and equipment |
|
185,093 |
|
182,087 |
| ||
Accumulated depreciation and amortization |
|
(85,207 |
) |
(82,112 |
) | ||
Property and equipment, net |
|
$ |
99,886 |
|
$ |
99,975 |
|
Depreciation expense for the three months ended March 31, 2012 and 2011 was $3.2 million and $3.1 million, respectively.
NOTE 6. GOODWILL AND INTANGIBLE ASSETS
The Companys entire goodwill balance has been assigned to the Operating Disposal Facilities reporting segment. Changes in Goodwill for the three months ended March 31, 2012 consisted of the following:
$s in thousands |
|
Goodwill |
| |
Balance at December 31, 2011 |
|
$ |
21,200 |
|
Foreign currency translation |
|
492 |
| |
Balance at March 31, 2012 |
|
$ |
21,692 |
|
Intangible assets consisted of the following:
$s in thousands |
|
March 31, |
|
December 31, |
| ||
Amortizing intangible assets: |
|
|
|
|
| ||
Developed software |
|
$ |
350 |
|
$ |
342 |
|
Database |
|
100 |
|
98 |
| ||
Customer relationships |
|
4,084 |
|
3,991 |
| ||
Technology - Formulae and processes |
|
9,108 |
|
8,902 |
| ||
Permits, licenses and lease |
|
27,975 |
|
27,340 |
| ||
Total amortizing intangible assets |
|
41,617 |
|
40,673 |
| ||
Accumulated amortization |
|
(1,989 |
) |
(1,601 |
) | ||
|
|
|
|
|
| ||
Nonamortizing intangible assets: |
|
|
|
|
| ||
Tradename |
|
170 |
|
166 |
| ||
Total intangible assets, net |
|
$ |
39,798 |
|
$ |
39,238 |
|
Amortization expense for the three months ended March 31, 2012 and 2011 was $350,000 and $355,000, respectively.
NOTE 7. DEBT
On October 29, 2010, we entered a credit agreement (the Credit Agreement), as amended, with Wells Fargo which provided for an aggregate commitment from Wells Fargo of $95.0 million. The Credit Agreement provides for a $20.0 million revolving line of credit (the Revolving Line of Credit) with a maturity date of June 15, 2013 and a $75.0 million reducing revolving line of credit (the Reducing Revolving Line of Credit) with a maturity date of November 1, 2015.
Revolving Line of Credit
The Revolving Line of Credit provides up to $20.0 million in revolving credit loans or letters of credit for working capital needs (the Commitment Amount). Under the Revolving Line of Credit, revolving loans are available based on the Prime Rate or LIBOR, at the Companys option, plus an applicable margin, which is determined according to a pricing grid under which the interest rate decreases or increases based on our ratio of funded debt to earnings before interest, taxes, depreciation and amortization (EBITDA). At March 31, 2012, the effective interest rate on the Revolving Line of Credit was 1.49%. Interest only payments are due either monthly or on the last day of any interest period, as applicable. At March 31, 2012, there were no amounts outstanding under the Revolving Line of Credit. The availability under the Revolving Line of Credit was $16.0 million with $4.0 million of the line of credit issued in the form of a standby letter of credit utilized as collateral for closure and post-closure financial assurance.
Reducing Revolving Line of Credit
The Reducing Revolving Line of Credit provided an initial commitment amount of $75.0 million, the proceeds of which were used to acquire all of the shares of Seaway TLC Inc. and its wholly-owned subsidiaries Stablex Canada, Inc. and Gulfstream TLC, Inc. (collectively Stablex), and thereafter has been and will be used to provide financing for working capital needs (the Reducing Revolving Commitment Amount). The initial Reducing Revolving Commitment Amount is reduced by $2.8 million on the last day of each June, September, December and March beginning June 30, 2011, continuing through November 1, 2015. Under the Reducing Revolving Line of Credit revolving loans are available based on the Prime Rate or LIBOR, at the Companys option, plus an applicable margin, which is determined according to a pricing grid under which the interest rate decreases or increases based on our ratio of funded debt to EBITDA. At March 31, 2012, the effective interest rate of the Reducing Revolving Line of Credit was 1.49%. Interest only payments are due either monthly or on the last day of any interest period, as applicable. At March 31, 2012, there was $35.0 million outstanding on the Reducing Revolving Line of Credit with availability for additional borrowings of $28.9 million.
In addition to standard fees, there are origination fees and commitment fees based on the average daily unused portion of the Commitment Amount and the Reducing Revolving Commitment Amount. The Credit Agreement contains certain quarterly financial covenants, including a maximum funded debt ratio, a maximum fixed charge coverage ratio, a minimum required tangible net worth and a minimum current ratio. In addition, we may only declare quarterly or annual dividends if on the date of declaration, no event of default has occurred, or no other event or condition has occurred that would constitute an event of default after giving effect to the payment of the dividend. Obligations under the Credit Agreement are guaranteed by US Ecology and all of its subsidiaries.
At March 31, 2012, we were in compliance with all of the financial covenants in the Credit Agreement.
NOTE 8. CLOSURE AND POST-CLOSURE OBLIGATIONS
Our accrued closure and post-closure obligations represent the expected future costs, including corrective actions, associated with closure and post-closure of our operating and non-operating disposal facilities. Liabilities are recorded when work is probable and the costs can be reasonably estimated. We perform periodic reviews of both non-operating and operating facilities and revise accruals for estimated closure and post-closure, remediation or other costs as necessary. Recorded liabilities are based on our best estimates of current costs and are updated periodically to include the effects of existing technology, presently enacted laws and regulations, inflation and other economic factors.
Changes to reported closure and post-closure obligations consisted of the following:
|
|
Three Months Ended |
| |
$s in thousands |
|
March 31, 2012 |
| |
|
|
|
| |
Closure and post-closure obligations, beginning of period |
|
$ |
17,338 |
|
Accretion expense |
|
335 |
| |
Payments |
|
(83 |
) | |
Foreign currency translation |
|
24 |
| |
Closure and post-closure obligations, end of period |
|
17,614 |
| |
Less current portion |
|
(2,886 |
) | |
Long-term portion |
|
$ |
14,728 |
|
NOTE 9. INCOME TAXES
During the three months ended March 31, 2012, there were no material changes to our unrecognized tax benefits disclosed in our Annual Report on Form 10-K for the fiscal year ended December 31, 2011. We do not anticipate our total unrecognized tax benefits to increase or decrease materially within the next twelve months.
Our effective tax rate for the three months ended March 31, 2012 was 39.1%, down from 41.3% for the three months ended March 31, 2011. The decrease in our effective tax rate reflects lower non-tax deductible expenses and higher earnings levels in the three months ended March 31, 2012 as compared with the same period in 2011.
We file a consolidated U.S. federal income tax return with the Internal Revenue Service as well as income tax returns in various states and Canada. We may be subject to examination by taxing authorities in the U.S. and Canada for tax years 2008 through 2011. Additionally, we may be subject to examinations by various state and local taxing jurisdictions for tax years 2007 through 2011. We are currently not aware of any examinations by taxing authorities.
NOTE 10. COMMITMENTS AND CONTINGENCIES
In the ordinary course of conducting business, we are involved in judicial and administrative proceedings involving federal, state, provincial or local governmental authorities, including regulatory agencies that oversee our permits and compliance with those permits. Fines or penalties may be assessed by our regulators as a result of review or inspection of our operating practices. Actions may also be brought by individuals or groups in connection with permitting of planned facilities, alleged violations of existing permits, or alleged damages suffered from exposure to hazardous substances purportedly released from our operated sites, as well as other litigation. We maintain insurance intended to cover property and damage claims asserted as a result of our operations. Periodically, management reviews and may establish reserves for legal and administrative matters, or fees expected to be incurred in connection therewith.
In April 2012, we received a confidential settlement communication from the United States Environment Protection Agency (U.S. EPA) alleging that the thermal recycling operation at our Robstown, Texas facility does not comply with certain rules and regulations. The communication included a draft consent agreement and final order directed to us and the thermal recycling units owner-operator. The EPA draft consent agreement asserts various technical compliance and permitting violations and proposes corrective actions to resolve the matter as well as proposed total penalties of $1.4 million against both us and the thermal recycling units owner-operator. We do not believe the alleged non-compliance matters represent a threat to human health or the environment and we are presently continuing to work with the U.S. EPA, as well as evaluating the matter in consultation with our legal counsel, the owner-operator of the thermal recycling unit and the Texas Department of Environmental Quality, which has direct oversight responsibility for our Robstown facilitys operating permit, including the operation of the thermal recycling unit. It is possible that as part of the resolution to this matter we may apply to modify existing or obtain new operating licenses or permits or otherwise make decisions that could limit or eliminate our thermal recycling services, require significant capital expenditures and/or increase operating costs. Such outcomes could result in lower revenue and earnings as well as possible impairment charges for infrastructure improvements supporting operation of the thermal recycling unit. It is also possible that as a result of the U.S. EPAs final position we would be required or voluntarily choose to discontinue thermal recycling services, either temporarily or permanently, and we may pursue legal action in an attempt to avoid such an outcome. In the three months ended March 31, 2012 total revenue earned from our thermal recycling service was 12% ($3.9 million) of total revenue and 13% ($871,000) of total operating income. In 2011, total revenue earned from our thermal recycling service was 11% ($17.2 million) of total revenue and 11% ($3.7 million) of total operating income. Pending additional information or resolution of this matter, we are unable to estimate the timing or financial impact, if any, and therefore have not recorded any charges for resolution of this matter as of March 31, 2012.
Other than the above matter, we are not currently a party to any material pending legal proceedings and are not aware of any other claims that could have a materially adverse effect on our financial position, results of operations or cash flows.
NOTE 11. EARNINGS PER SHARE
|
|
Three Months Ended March 31, |
| ||||||||||
$s and shares in thousands, except per share |
|
2012 |
|
2011 |
| ||||||||
amounts |
|
Basic |
|
Diluted |
|
Basic |
|
Diluted |
| ||||
Net income |
|
$ |
4,523 |
|
$ |
4,523 |
|
$ |
3,260 |
|
$ |
3,260 |
|
Weighted average basic shares outstanding |
|
18,218 |
|
18,218 |
|
18,186 |
|
18,186 |
| ||||
|
|
|
|
|
|
|
|
|
| ||||
Dilutive effect of stock options and restricted stock |
|
|
|
36 |
|
|
|
24 |
| ||||
Weighted average diluted shares outstanding |
|
|
|
18,254 |
|
|
|
18,210 |
| ||||
|
|
|
|
|
|
|
|
|
| ||||
Earnings per share |
|
$ |
0.25 |
|
$ |
0.25 |
|
$ |
0.18 |
|
$ |
0.18 |
|
Anti-dilutive shares excluded from calculation |
|
|
|
317 |
|
|
|
336 |
|
NOTE 12. TREASURY STOCK
During the three months ended March 31, 2012, the Company issued 14,800 shares of restricted stock from our treasury stock at an average cost of $16.68 per share.
NOTE 13. OPERATING SEGMENTS
We operate within two segments, Operating Disposal Facilities and Non-Operating Disposal Facilities. These segments reflect our internal reporting structure and nature of services offered. The Operating Disposal Facility segment represents disposal facilities accepting hazardous and radioactive waste. The Non-Operating Disposal Facility segment represents facilities which are not accepting hazardous and/or radioactive waste or formerly proposed new facilities.
Income taxes are assigned to Corporate, but all other items are included in the segment where they originated. Inter-company transactions have been eliminated from the segment information and are not significant between segments.
Summarized financial information concerning our reportable segments is shown in the following tables:
Three Months Ended March 31, 2012 (in thousands) |
|
Operating |
|
Non- |
|
Corporate |
|
Total |
| ||||
|
|
|
|
|
|
|
|
|
| ||||
Revenue - Treatment and disposal |
|
$ |
29,945 |
|
$ |
4 |
|
$ |
|
|
$ |
29,949 |
|
Revenue - Transportation services |
|
3,064 |
|
|
|
|
|
3,064 |
| ||||
Total revenue |
|
33,009 |
|
4 |
|
|
|
33,013 |
| ||||
Direct operating costs |
|
17,583 |
|
55 |
|
|
|
17,638 |
| ||||
Transportation costs |
|
3,299 |
|
|
|
|
|
3,299 |
| ||||
Gross profit (loss) |
|
12,127 |
|
(51 |
) |
|
|
12,076 |
| ||||
Selling, general & administrative expense |
|
2,521 |
|
|
|
3,084 |
|
5,605 |
| ||||
Operating income (loss) |
|
9,606 |
|
(51 |
) |
(3,084 |
) |
6,471 |
| ||||
Interest income (expense), net |
|
5 |
|
|
|
(224 |
) |
(219 |
) | ||||
Foreign currency gain (loss) |
|
(99 |
) |
|
|
1,190 |
|
1,091 |
| ||||
Other income |
|
80 |
|
|
|
|
|
80 |
| ||||
Income (loss) before income taxes |
|
9,592 |
|
(51 |
) |
(2,118 |
) |
7,423 |
| ||||
Income tax expense |
|
|
|
|
|
2,900 |
|
2,900 |
| ||||
Net income (loss) |
|
$ |
9,592 |
|
$ |
(51 |
) |
$ |
(5,018 |
) |
$ |
4,523 |
|
Depreciation, amortization & accretion |
|
$ |
3,844 |
|
$ |
54 |
|
$ |
10 |
|
$ |
3,908 |
|
Capital expenditures |
|
$ |
2,360 |
|
$ |
17 |
|
$ |
9 |
|
$ |
2,386 |
|
Total assets |
|
$ |
188,646 |
|
$ |
95 |
|
$ |
8,986 |
|
$ |
197,727 |
|
Three Months Ended March 31, 2011 (in thousands) |
|
Operating |
|
Non- |
|
Corporate |
|
Total |
| ||||
|
|
|
|
|
|
|
|
|
| ||||
Revenue - Treatment and disposal |
|
$ |
27,678 |
|
$ |
4 |
|
$ |
|
|
$ |
27,682 |
|
Revenue - Transportation services |
|
6,461 |
|
|
|
|
|
6,461 |
| ||||
Total revenue |
|
34,139 |
|
4 |
|
|
|
34,143 |
| ||||
Direct operating costs |
|
17,635 |
|
55 |
|
|
|
17,690 |
| ||||
Transportation costs |
|
6,984 |
|
|
|
|
|
6,984 |
| ||||
Gross profit (loss) |
|
9,520 |
|
(51 |
) |
|
|
9,469 |
| ||||
Selling, general & administrative expense |
|
2,363 |
|
|
|
2,465 |
|
4,828 |
| ||||
Operating income (loss) |
|
7,157 |
|
(51 |
) |
(2,465 |
) |
4,641 |
| ||||
Interest income (expense), net |
|
8 |
|
|
|
(444 |
) |
(436 |
) | ||||
Foreign currency gain (loss) |
|
(71 |
) |
|
|
1,321 |
|
1,250 |
| ||||
Other income |
|
98 |
|
1 |
|
|
|
99 |
| ||||
Income (loss) before income taxes |
|
7,192 |
|
(50 |
) |
(1,588 |
) |
5,554 |
| ||||
Income tax expense |
|
|
|
|
|
2,294 |
|
2,294 |
| ||||
Net income (loss) |
|
$ |
7,192 |
|
$ |
(50 |
) |
$ |
(3,882 |
) |
$ |
3,260 |
|
Depreciation, amortization & accretion |
|
$ |
3,693 |
|
$ |
55 |
|
$ |
10 |
|
$ |
3,758 |
|
Capital expenditures |
|
$ |
4,014 |
|
$ |
12 |
|
$ |
61 |
|
$ |
4,087 |
|
Total assets |
|
$ |
201,253 |
|
$ |
90 |
|
$ |
7,826 |
|
$ |
209,169 |
|
Revenue, Property and Equipment and Intangible Assets Outside of the United States
We provide services in the United States and Canada. The table below summarizes revenues by geographic area where the underlying services were performed for the three months ended March 31, 2012 and 2011:
Geographic disclosure
|
|
Three Months Ended March 31, |
| ||||
$s in thousands |
|
2012 |
|
2011 |
| ||
United States |
|
$ |
24,599 |
|
$ |
25,123 |
|
Canada |
|
8,414 |
|
9,020 |
| ||
|
|
$ |
33,013 |
|
$ |
34,143 |
|
Long-lived assets, consisting of property and equipment and intangible assets net of accumulated depreciation and amortization, by geographic location as of March 31, 2012 and December 31, 2011 consisted of the following:
|
|
March 31, |
|
December 31, |
| ||
$s in thousands |
|
2012 |
|
2011 |
| ||
United States |
|
$ |
70,595 |
|
$ |
71,456 |
|
Canada |
|
69,089 |
|
67,757 |
| ||
|
|
$ |
139,684 |
|
$ |
139,213 |
|
NOTE 14. SUBSEQUENT EVENT
On April 2, 2012, we declared a quarterly dividend of $0.18 per common share to stockholders of record on April 13, 2012. The dividend was paid using cash on hand on April 20, 2012 in an aggregate amount of $3.3 million.
REPORT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
To the Board of Directors and Stockholders of
US Ecology, Inc.
Boise, Idaho
We have reviewed the accompanying consolidated balance sheet of US Ecology, Inc. and subsidiaries (the Company) as of March 31, 2012, and the related consolidated statements of operations, comprehensive income and cash flows for the three-month periods ended March 31, 2012 and 2011. These interim financial statements are the responsibility of the Companys management.
We conducted our reviews in accordance with the standards of the Public Company Accounting Oversight Board (United States). A review of interim financial information consists principally of applying analytical procedures and making inquiries of persons responsible for financial and accounting matters. It is substantially less in scope than an audit conducted in accordance with the standards of the Public Company Accounting Oversight Board (United States), the objective of which is the expression of an opinion regarding the financial statements taken as a whole. Accordingly, we do not express such an opinion.
Based on our reviews, we are not aware of any material modifications that should be made to such consolidated interim financial statements for them to be in conformity with accounting principles generally accepted in the United States of America.
We have previously audited, in accordance with the standards of the Public Company Accounting Oversight Board (United States), the consolidated balance sheet of US Ecology, Inc. and subsidiaries as of December 31, 2011, and the related consolidated statements of operations, stockholders equity, and cash flows for the year then ended (not presented herein); and in our report dated February 29, 2012, we expressed an unqualified opinion on those consolidated financial statements. In our opinion, the information set forth in the accompanying consolidated balance sheet as of December 31, 2011 is fairly stated, in all material respects, in relation to the consolidated balance sheet from which it has been derived.
/s/ Deloitte & Touche LLP
Boise, Idaho
May 8, 2012
ITEM 2. MANAGEMENTS DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS
The information contained in this section should be read in conjunction with our unaudited consolidated financial statements and related notes thereto appearing elsewhere in this quarterly report on Form 10-Q. In this report, we, us, our, US Ecology and the Company refer to US Ecology, Inc. and its subsidiaries.
OVERVIEW
US Ecology is a hazardous, polychlorinated biphenyl (PCB), non-hazardous and radioactive waste services company providing treatment, disposal, recycling and transportation services to commercial and government entities including, but not limited to, oil refineries, chemical production facilities, manufacturers, electric utilities, steel mills, biotechnology companies, military installations, waste brokers/aggregators and medical and academic institutions. The majority of the waste received at our facilities is produced in the United States and Canada.
We generate revenue from fees charged to treat and dispose of waste at our five fixed disposal facilities located near Grand View, Idaho; Richland, Washington; Beatty, Nevada; Robstown, Texas and Blainville, Québec, Canada. We manage a dedicated fleet of railcars and arrange for the transportation of waste to our facilities, which generates significant revenue. On a less frequent basis, we utilize this railcar fleet to provide transportation services for disposal at facilities operated by other companies. We or our predecessor companies have been in the waste business since 1952.
Our customers may be divided into categories to better evaluate period-to-period changes in our treatment and disposal revenue based on service mix and type of business (recurring customer Base Business or discrete waste clean-up project Event Business). Each of these categories is described in the table below with information on the percentage of total treatment and disposal revenues for each category for the three months ended March 31, 2012 and 2011.
Customer |
|
|
|
% of Treatment and Disposal Revenue (1) for the |
| ||
Category |
|
Description |
|
2012 |
|
2011 |
|
Broker |
|
Companies that collect and aggregate waste from their direct customers, comprised of both Base and Event Business. |
|
53 |
% |
48 |
% |
|
|
|
|
|
|
|
|
Other industry |
|
Electric utilities, chemical manufacturers, steel mill and other industrial customers not included in other categories, comprised of both recurring Base and Event Business. |
|
20 |
% |
17 |
% |
|
|
|
|
|
|
|
|
Refinery |
|
Petroleum refinery customers, comprised of both Base and Event Business. |
|
10 |
% |
10 |
% |
|
|
|
|
|
|
|
|
Government |
|
Federal and State government clean-up project waste, comprised of both Base and Event Business. |
|
8 |
% |
12 |
% |
|
|
|
|
|
|
|
|
Private Clean-up |
|
Private sector clean-up project waste, typically Event Business. |
|
5 |
% |
8 |
% |
|
|
|
|
|
|
|
|
Rate regulated |
|
Northwest and Rocky Mountain Compact customers paying rate-regulated disposal fees set by the State of Washington, predominantly Base Business. |
|
4 |
% |
5 |
% |
(1) Excludes all transportation service revenue
A significant portion of our treatment and disposal revenue is attributable to discrete Event Business projects which vary widely in size, duration and unit pricing. For the three months ended March 31, 2012, approximately 25% of our treatment and disposal revenue was derived from Event Business projects. The one-time nature of Event Business, diverse spectrum of waste types received and widely varying unit pricing necessarily creates variability in revenue and earnings. This variability may be influenced by general and industry-specific economic conditions, funding availability, changes in laws and regulations, government enforcement actions or court orders, public controversies, litigation, weather, real estate redevelopment project timing, government appropriation and funding
cycles and other factors. The types and amounts of waste received from Base Business also vary from quarter to quarter. As a result of this variability we can experience significant quarter-to-quarter and year-to-year differences in revenue, gross profit, gross margin, operating income, Adjusted EBITDA (as defined below), and net income. Also, while many large projects are pursued months or years in advance of work performance, both large and small clean-up project opportunities routinely arise with little prior notice. This uncertainty, which is inherent to the hazardous and radioactive waste disposal business, is factored into our projections and externally communicated business outlook statements. Our projections combine historical experience with identified sales pipeline opportunities, new or expanded service line projections and prevailing market conditions.
Depending on project-specific customer needs and competitive economics, transportation services may be offered at or near our cost to help secure new business. For waste transported by rail from the eastern United States and other locations distant from our Grand View, Idaho facility, transportation-related revenue can account for as much as three-fourths (75%) of total project revenue. While bundling transportation and disposal services reduces overall gross profit as a percentage of total revenue (gross margin), this value-added service has allowed us to win multiple projects that management believes we could not have otherwise competed for successfully. Our Company-owned railcar fleet, which supplements railcars obtained under operating leases, has reduced our reliance on short-term rentals and ultimately has reduced transportation expenses.
The increased waste volumes resulting from projects won through this bundling strategy drive operating leverage and increase profitability. While waste treatment and other variable costs are project-specific, the earnings contribution from individual projects generally increases as overall disposal volumes increase. Management believes that maximizing operating income and earnings per share is a higher priority than maintaining or increasing gross margin. We plan to continue aggressively bidding for bundled transportation and disposal services based on this strategy.
To maximize utilization of our railcar fleet, we periodically deploy available railcars to transport waste from clean-up sites to disposal facilities operated by other companies. Such transportation services may be bundled with for-profit logistics and field services support work.
We serve an industrial customer base such as oil refineries, chemical production plants, steel mills, waste brokers/aggregators serving small manufacturers and others that are generally affected by improving or declining economic conditions and a loosening or tightening credit environment. Under adverse conditions, our customers as well as those they serve may curtail operations, resulting in lower waste production and/or delayed spending on off-site waste shipments, maintenance, waste clean-up projects and other work. Factors that can impact general economic conditions and the level of spending by our customers include, but are not limited to, consumer and industrial spending, increases or decreases in fuel and energy costs, conditions in the real estate and mortgage markets, labor and healthcare costs, access to credit, consumer confidence and other global economic factors affecting spending behavior. Market forces may also induce customers to reduce or cease operations, declare bankruptcy, liquidate or relocate to other countries, any of which could adversely affect our business. To the extent our business is either government funded or driven by government regulations or enforcement actions, we believe it is less susceptible to general economic conditions. However, spending by government agencies may also be reduced due to declining tax revenue resulting from a weak economy or changes in policy. Disbursement of funds appropriated by Congress may also be delayed for administrative or other reasons.
RESULTS OF OPERATIONS
The following table summarizes our results of operations for the three months ended March 31, 2012 and 2011 in dollars and as a percentage of total revenue.
|
|
Three Months Ended March 31, |
| ||||||||
$s and shares in thousands, except per share amounts |
|
2012 |
|
% |
|
2011 |
|
% |
| ||
|
|
|
|
|
|
|
|
|
|
|
|
Revenue |
|
$ |
33,013 |
|
100.0 |
% |
$ |
34,143 |
|
100.0 |
% |
Direct operating costs |
|
17,638 |
|
53.4 |
% |
17,690 |
|
51.8 |
% | ||
Transportation costs |
|
3,299 |
|
10.0 |
% |
6,984 |
|
20.5 |
% | ||
|
|
|
|
|
|
|
|
|
| ||
Gross profit |
|
12,076 |
|
36.6 |
% |
9,469 |
|
27.7 |
% | ||
|
|
|
|
|
|
|
|
|
| ||
Selling, general and administrative expenses |
|
5,605 |
|
17.0 |
% |
4,828 |
|
14.1 |
% | ||
Operating income |
|
6,471 |
|
19.6 |
% |
4,641 |
|
13.6 |
% | ||
|
|
|
|
|
|
|
|
|
| ||
Other income (expense): |
|
|
|
|
|
|
|
|
| ||
Interest income |
|
5 |
|
0.0 |
% |
10 |
|
0.0 |
% | ||
Interest expense |
|
(224 |
) |
-0.7 |
% |
(446 |
) |
-1.3 |
% | ||
Foreign currency gain |
|
1,091 |
|
3.3 |
% |
1,250 |
|
3.7 |
% | ||
Other |
|
80 |
|
0.2 |
% |
99 |
|
0.3 |
% | ||
Total other income |
|
952 |
|
2.9 |
% |
913 |
|
2.7 |
% | ||
|
|
|
|
|
|
|
|
|
| ||
Income before income taxes |
|
7,423 |
|
22.5 |
% |
5,554 |
|
16.3 |
% | ||
Income taxes |
|
2,900 |
|
8.8 |
% |
2,294 |
|
6.8 |
% | ||
Net income |
|
$ |
4,523 |
|
13.7 |
% |
$ |
3,260 |
|
9.5 |
% |
|
|
|
|
|
|
|
|
|
| ||
Earnings per share: |
|
|
|
|
|
|
|
|
| ||
Basic |
|
$ |
0.25 |
|
|
|
$ |
0.18 |
|
|
|
Dilutive |
|
$ |
0.25 |
|
|
|
$ |
0.18 |
|
|
|
|
|
|
|
|
|
|
|
|
| ||
Shares used in earnings per share calculation: |
|
|
|
|
|
|
|
|
| ||
Basic |
|
18,218 |
|
|
|
18,186 |
|
|
| ||
Dilutive |
|
18,254 |
|
|
|
18,210 |
|
|
| ||
|
|
|
|
|
|
|
|
|
| ||
Dividends paid per share |
|
$ |
0.18 |
|
|
|
$ |
0.18 |
|
|
|
|
|
|
|
|
|
|
|
|
| ||
Other Financial Data: |
|
|
|
|
|
|
|
|
| ||
Adjusted EBITDA (1) |
|
$ |
10,582 |
|
|
|
$ |
8,602 |
|
|
|
(1) For all periods presented, Adjusted EBITDA is defined as net income before net interest expense, income tax expense, depreciation, amortization, stock based compensation, accretion of closure and post-closure liabilities, foreign currency gain/loss and other income/expense, which are not considered part of usual business operations. Adjusted EBITDA is a complement to results provided in accordance with GAAP and we believe that such information provides additional useful information to analysts, stockholders and other users to understand the Companys operating performance. Since Adjusted EBITDA is not a measurement determined in accordance with GAAP and is thus susceptible to varying calculations, Adjusted EBITDA as presented may not be comparable to other similarly titled measures of other companies. Items excluded from Adjusted EBITDA are significant components in understanding and assessing our financial performance. Adjusted EBITDA should not be considered in isolation or as an alternative to, or substitute for, net income, cash flows generated by operations, investing or financing activities, or other financial statement data presented in the consolidated financial statements as indicators of financial performance or liquidity. Adjusted EBITDA has limitations as an analytical tool and should not be considered in isolation or a substitute for analyzing our results as reported under GAAP. Some of the limitations are:
· Adjusted EBITDA does not reflect changes in, or cash requirements for, our working capital needs;
· Adjusted EBITDA does not reflect our interest expense, or the requirements necessary to service interest or principal payments on our debt;
· Adjusted EBITDA does not reflect our income tax expenses or the cash requirements to pay our taxes;
· Adjusted EBITDA does not reflect our cash expenditures or future requirements for capital expenditures or contractual commitments; and
· although depreciation and amortization charges are non-cash charges, the assets being depreciated and amortized will often have to be replaced in the future, and Adjusted EBITDA does not reflect any cash requirements for such replacements.
The following reconciliation itemizes the differences between reported Net income and Adjusted EBITDA for the three months ended March 31, 2012 and 2011:
|
|
Three Months Ended March 31, |
| ||||
$s in thousands |
|
2012 |
|
2011 |
| ||
|
|
|
|
|
| ||
Net income |
|
$ |
4,523 |
|
$ |
3,260 |
|
Income tax expense |
|
2,900 |
|
2,294 |
| ||
Interest expense |
|
224 |
|
446 |
| ||
Interest income |
|
(5 |
) |
(10 |
) | ||
Foreign currency gain |
|
(1,091 |
) |
(1,250 |
) | ||
Other income |
|
(80 |
) |
(99 |
) | ||
Depreciation and amortization of plant and equipment |
|
3,223 |
|
3,080 |
| ||
Amortization of intangibles |
|
350 |
|
355 |
| ||
Stock-based compensation |
|
203 |
|
203 |
| ||
Accretion of closure & post-closure liabilities |
|
335 |
|
323 |
| ||
Adjusted EBITDA |
|
$ |
10,582 |
|
$ |
8,602 |
|
THREE MONTHS ENDED MARCH 31, 2012 COMPARED TO THREE MONTHS ENDED MARCH 31, 2011
Revenue. Revenue decreased 3% to $33.0 million for the first quarter of 2012, down from $34.1 million in the first quarter of 2011. An 8% increase in treatment and disposal (T&D) revenue was more than offset by a 53% decrease in transportation service revenue. The decrease in transportation revenue was due to fewer Event Business projects utilizing the Companys transportation and logistics services.
During the first quarter of 2012 we disposed of a total of 215,000 tons of waste, or 8% more than the 199,000 tons disposed of in the first quarter of 2011. Average selling price increased 1% during the first quarter of 2012 compared to the same quarter last year.
During the first quarter of 2012, T&D revenue from recurring Base Business customers was 21% higher than the first quarter of 2011 and comprised 75% of T&D revenue. This compares to 67% of T&D revenue in the first quarter of 2011. As discussed further below, this increase primarily reflects higher Base Business T&D revenue from broker and other industry customers.
Event Business revenue in the first quarter of 2012 decreased 19% compared to the same quarter in 2011 and was 25% of T&D revenue for the first quarter of 2012. This compares to 33% of T&D in the first quarter of 2011. As discussed further below, this decrease primarily reflects lower Event Business T&D revenue in the government, private clean-up and broker customers.
The following table summarizes our first quarter 2012 revenue growth (both Base and Event Business) by customer type as compared with the first quarter of 2011.
|
|
Treatment and Disposal Revenue Growth |
|
|
|
|
|
Other industry |
|
30 |
% |
Broker |
|
21 |
% |
Refinery |
|
0 |
% |
Rate regulated |
|
-11 |
% |
Government |
|
-30 |
% |
Private clean-up |
|
-36 |
% |
Our other industry revenue category increased 30% in the first quarter of 2012 compared to the first quarter of 2011 on strong shipments from the broadly diversified group of industrial customers we serve.
Our broker business increased 21% in the first quarter of 2012 compared to the first quarter of 2011. This increase was the result of shipments across our broad range of government and industry waste generators directly served by our multiple broker customers including higher volumes of brokered thermal recycling projects.
Rate-regulated business at our Richland, Washington low-level radioactive waste disposal facility decreased 11% in the first quarter of 2012 compared to the first quarter of 2011. Our Richland facility operates under a State-approved annual revenue requirement. The decrease is due to the timing of revenue recognition for the rate-regulated portion of the business.
Government clean-up business revenue decreased 30% in the first quarter of 2012 compared to the first quarter of 2011. This decrease primarily reflects lower shipments from the USACE in the first quarter of 2012 compared to the first quarter of 2011. Event Business under our USACE contract contributed $1.6 million, or 5%, of total revenue in the first quarter of 2012 compared to $3.7 million, or 11%, of total revenue in the first quarter of 2011. Excluding transportation service revenue, T&D revenue with the USACE decreased approximately 40% in the first quarter of 2012 compared with the first quarter of 2011. This decrease was due to project-specific timing at the multiple USACE clean-up sites. No USACE projects served by the Company were cancelled or awarded to competitors during the quarter.
T&D revenue from private clean-up customers decreased 36% in the first quarter of 2012 compared to the first quarter of 2011. This decrease primarily reflects the completion of a project at our Stablex operation in 2011 that was not fully replaced in the first quarter of 2012.
Gross Profit. Gross profit for the first quarter of 2012 increased 28% to $12.1 million, up from $9.5 million in the first quarter of 2011. This increase primarily reflects higher volumes of waste disposed and slightly higher average selling prices in the first quarter of 2012 compared to the first quarter of 2011. Gross margin was 37% in the first quarter of 2012, up from 28% in the first quarter of 2011. T&D gross margin (which excludes transportation revenue and costs) was 41% in the first quarter of 2012 compared to 36% in the first quarter of 2011. The increase in gross margin and T&D gross margin primarily reflects increased volumes, slightly higher average selling prices and service mix in the first quarter of 2012 compared to the same period of 2011.
Selling, General and Administrative (SG&A). As a percentage of total revenue, SG&A expenses for the first quarters of 2012 and 2011 were 17% and 14%, respectively. SG&A expenses were $5.6 million in the first quarter of 2012 and $4.8 million in the first quarter of 2011. The increase primarily reflects higher variable incentive compensation resulting from stronger financial performance in the first quarter of 2012 compared to the first quarter of 2011.
Interest expense. Interest expense in the first quarter of 2012 was $224,000, down from $446,000 in the first quarter of 2011, primarily reflecting lower debt levels and lower interest rates in the first quarter of 2012.
Foreign Currency Gain. We recognized $1.1 million and $1.3 million in foreign currency gains in the first quarter of 2012 and 2011, respectively. Foreign currency gain reflects changes in business activity conducted in a currency other than the United States dollar (USD), our functional currency. Our Stablex facility is a Canadian company whose functional currency is the Canadian dollar (CAD). As part of our treasury management strategy we established intercompany loans between our parent company, US Ecology, and Stablex. These intercompany loans are payable by Stablex to US Ecology in CAD requiring us to revalue the outstanding loan balance through our statements of operations based on USD/CAD currency movements from period to period. At March 31, 2012 we had $52.9 million of intercompany loans subject to currency revaluation.
Other income. Other income includes non-operating business activities and unusual revenue and expenses. In the first quarter of 2012 and 2011, we recognized $80,000 and $99,000, respectively, in other income, primarily royalty income from a previously sold municipal waste landfill in Texas.
Income tax expense. Our effective tax rate for the first quarter of 2012 was 39.1%, down from 41.3% in the first quarter of 2011. The decrease in our effective tax rate reflects lower non-tax deductible expenses and higher earnings levels in the three months ended March 31, 2012 as compared with the same period in 2011. As of March 31, 2012 we had unrecognized tax benefits of $457,000 (including interest of $19,000) that, if recognized, would favorably affect the effective tax rate.
CRITICAL ACCOUNTING POLICIES
Financial statement preparation requires management to make estimates and judgments that affect reported assets, liabilities, revenue and expenses and disclosure of contingent assets and liabilities. The accompanying consolidated financial statements are prepared using the same critical accounting policies disclosed in our Annual Report on Form 10-K for the fiscal year ended December 31, 2011.
LIQUIDITY AND CAPITAL RESOURCES
Our primary sources of liquidity are cash and cash equivalents, cash generated from operations and borrowings under the Credit Agreement. At March 31, 2012, we had $6.4 million in cash and cash equivalents immediately available for operations. We assess our liquidity in terms of our ability to generate cash to fund our operating, investing and financing activities. Our primary ongoing cash requirements will be to fund operations, capital expenditures, interest and principal payments and continue paying dividends pursuant to our dividend policy. We believe future operating cash flows will be sufficient to meet our future operating and investing cash needs for the foreseeable future. Furthermore, existing cash balances and availability of additional borrowings under our Credit Agreement provide additional potential sources of liquidity should they be required.
Operating Activities. For the three months ended March 31, 2012, net cash provided by operating activities was $13.4 million. This primarily reflects net income of $4.5 million, decreases in accounts receivable of $7.6 million, and depreciation and amortization and accretion of $3.9 million, partially offset by decreases in accrued salaries and benefits of $1.5 million and unrealized foreign currency gains of $1.2 million. Impacts on net income are due to the factors discussed above under Results of Operations. The decrease in accounts receivable is primarily attributable to the timing of significant customer payments received in the first three months of 2012. Days sales outstanding were 62 days as of March 31, 2012, compared to 66 days at December 31, 2011 and 64 days at March 31, 2011.
For the three months ended March 31, 2011, net cash provided by operating activities was $12.2 million. This primarily reflects net income of $3.3 million, decreases in accounts receivable of $8.8 million and depreciation and amortization and accretion of $3.8 million, partially offset by decreases in accrued salaries and benefits of $1.1 million, decreases in accounts payable and accrued liabilities of $1.1 million and decreases in income tax payable of $784,000.
Investing Activities. For the three months ended March 31, 2012, net cash used in investing activities was $2.3 million primarily related to capital expenditures of $2.4 million. Significant capital projects included construction of additional disposal capacity at our Blainville, Québec, Canada location and equipment purchases at all five operating disposal facilities.
For the three months ended March 31, 2011, net cash used in investing activities was $4.1 million primarily related to capital expenditures of $4.1 million. Significant capital projects included construction of additional disposal capacity and treatment facility upgrades at our Beatty, Nevada location, new catalyst handling equipment in Robstown, Texas and equipment purchases at all five operating disposal facilities.
Financing Activities. For the three months ended March 31, 2012, net cash used in financing activities was $9.0 million and consisted primarily of repayments, net of borrowings, under the Credit Agreement of $5.6 million and payment of dividends to our stockholders of $3.3 million.
For the three months ended March 31, 2011, net cash used in financing activities was $10.8 million and included repayments, net of borrowings, on our credit facility of $7.5 million and the payment of dividends to our stockholders of $3.3 million.
CONTRACTUAL OBLIGATIONS AND GUARANTEES
There were no material changes in the amounts of our contractual obligations and guarantees during the three months ended March 31, 2012. For detailed information on our contractual obligations and guarantees, refer to our Annual Report on Form 10-K for the fiscal year ended December 31, 2011.
ITEM 3. QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK
We are exposed to changes in interest rates as a result of our borrowings under the Credit Agreement. Under the Credit Agreement, revolving loans are available based on the Prime Rate or LIBOR, at the Companys option, plus an applicable margin, which is determined according to a pricing grid under which the interest rate decreases or increases based on our ratio of funded debt to EBITDA. At March 31, 2012, we had $35.0 million of borrowings on the Reducing Revolving Line of Credit bearing an interest rate of 1.49%. There were no borrowings on the Revolving Line of Credit at March 31, 2012. If interest rates were to rise we would be subject to higher interest payments if outstanding balances remain unchanged. Based on the outstanding indebtedness of $35.0 million under our Credit Agreement at March 31, 2012, if market rates used to calculate interest expense were to average 1% higher in the next twelve months, our interest expense would increase by approximately $350,000.
Foreign Currency Risk
We are subject to currency exposures and volatility because of currency fluctuations. The majority of our transactions are in USD; however, our Stablex subsidiary conducts business in both Canada and the United States. In addition, contracts for services Stablex provides to U.S. customers are generally denominated in USD. During the three months ended March 31, 2012, Stablex transacted approximately 34% of its revenue in USD and at any time has cash on deposit in USD and outstanding USD trade receivables and payables related to these transactions. These USD cash, receivable and payable accounts are vulnerable to foreign currency translation gains or losses. Exchange rate movements also affect the translation of Canadian generated profits and losses into USD.
We established intercompany loans between Stablex and US Ecology, Inc. as part of a tax and treasury management strategy allowing for repayment of third-party bank debt used to complete the acquisition. These intercompany loans are payable using CAD and are subject to mark-to-market adjustments with movements in the CAD. At March 31, 2012 we had $52.9 million of intercompany loans outstanding between Stablex and US Ecology, Inc. During the first quarter of 2012, the CAD strengthened relative to the USD resulting in a $1.1 million foreign currency translation gain in the Companys Consolidated Statement of Operations related to the intercompany loans. Based on intercompany balances as of March 31, 2012, a $0.01 CAD increase or decrease in currency rate
compared to the USD at March 31, 2012 would have generated a gain or loss of approximately $529,000 for the three months ended March 31, 2012.
We currently have no foreign exchange contracts, option contracts or other foreign currency hedging arrangements. Management evaluates the Companys risk position on an ongoing basis to determine whether foreign exchange hedging strategies should be employed.
ITEM 4. CONTROLS AND PROCEDURES
Management of the Company, including the Chief Executive Officer and the Chief Financial Officer of the Company, have evaluated the effectiveness of the Companys disclosure controls and procedures (as defined in Rule 13a-15(e) of the Securities Exchange Act of 1934, as amended (the Exchange Act)) as of March 31, 2012. Based on this evaluation, our Chief Executive Officer and Chief Financial Officer have concluded that our disclosure controls and procedures, including the accumulation and communication of disclosures to the Companys Chief Executive Officer and Chief Financial Officer as appropriate to allow timely decisions regarding required disclosure, are effective to provide reasonable assurance that information required to be disclosed by us in the reports that we file or submit under the Exchange Act is recorded, processed, summarized and reported within the time periods specified by the rules and forms of the SEC.
There were no changes in our internal control over financial reporting that occurred during the most recently completed fiscal quarter that have materially affected, or are reasonably likely to materially affect, our internal control over financial reporting.
Cautionary Statement for Purposes of Safe Harbor Provisions of the Private Securities Litigation Reform Act of 1995
This quarterly report on Form 10-Q contains forward-looking statements within the meaning of the federal securities laws. Statements that are not historical facts, including statements about the Companys beliefs and expectations, are forward-looking statements. Forward-looking statements include statements preceded by, followed by or that include the words may, could, would, should, believe, expect, anticipate, plan, estimate, target, project, intend and similar expressions. These statements include, among others, statements regarding our financial and operating results, strategic objectives and means to achieve those objectives, the amount and timing of capital expenditures, repurchases of its stock under approved stock repurchase plans, the amount and timing of interest expense, the likelihood of our success in expanding our business, financing plans, budgets, working capital needs and sources of liquidity.
Forward-looking statements are only predictions and are not guarantees of performance. These statements are based on managements beliefs and assumptions, which in turn are based on currently available information. Important assumptions include, among others, those regarding demand for Company services, expansion of service offerings geographically or through new or expanded service lines, the timing and cost of planned capital expenditures, competitive conditions and general economic conditions. These assumptions could prove inaccurate. Forward-looking statements also involve known and unknown risks and uncertainties, which could cause actual results to differ materially from those contained in any forward-looking statement. Many of these factors are beyond our ability to control or predict. Such factors include the replacement of non-recurring event clean-up projects, a loss of a major customer, our ability to permit and contract for timely construction of new or expanded disposal cells, our ability to renew our operating permits or lease agreements with regulatory bodies, loss of key personnel, compliance with and changes to applicable laws, rules, or regulations, fluctuations in foreign currency markets, access to insurance, surety bonds and other financial assurances, a deterioration in our labor relations or labor disputes, our ability to perform under required contracts, failure to realize anticipated benefits and operational performance from acquired operations, adverse economic conditions, government funding or competitive pressures, incidents or adverse weather conditions that could limit or suspend specific operations, access to cost effective transportation services, lawsuits, market conditions, our willingness or ability to pay dividends, implementation of new technologies and our ability to effectively close and integrate future acquisitions.
Except as required by applicable law, including the securities laws of the United States and the rules and regulations of the SEC, we are under no obligation to publicly update or revise any forward-looking statements, whether as a result of new information, future events or otherwise. You should not place undue reliance on our forward-looking statements. Although we believe that the expectations reflected in forward-looking statements are reasonable, we cannot guarantee future results or performance. Before you invest in our common stock, you should be aware that the occurrence of the events described in the Risk Factors section in our Annual Report on Form 10-K for the fiscal year ended December 31, 2011 could harm our business, prospects, operating results, and financial condition.
Investors should also be aware that while we do, from time to time, communicate with securities analysts, it is against our policy to disclose to them any material non-public information or other confidential commercial information. Accordingly, stockholders should not assume that we agree with any statement or report issued by any analyst irrespective of the content of the statement or report. Furthermore, we have a policy against issuing or confirming financial forecasts or projections issued by others. Thus, to the extent that reports issued by securities analysts contain any projections, forecasts or opinions, such reports are not the responsibility of US Ecology, Inc.
In April 2012, we received a confidential settlement communication from the United States Environment Protection Agency (U.S. EPA) alleging that the thermal recycling operation at our Robstown, Texas facility does not comply with certain rules and regulations. The communication included a draft consent agreement and final order directed to us and the thermal recycling units owner-operator. The EPA draft consent agreement asserts various technical compliance and permitting violations and proposes corrective actions to resolve the matter as well as proposed total penalties of $1.4 million against both us and the thermal recycling units owner-operator. We do not believe the alleged non-compliance matters represent a threat to human health or the environment and we are presently continuing to work with the U.S. EPA, as well as evaluating the matter in consultation with our legal counsel, the owner-operator of the thermal recycling unit and the Texas Department of Environmental Quality, which has direct oversight responsibility for our Robstown facilitys operating permit, including the operation of the thermal recycling unit. It is possible that as part of the resolution to this matter we may apply to modify existing or obtain new operating licenses or permits or otherwise make decisions that could limit or eliminate our thermal recycling services, require significant capital expenditures and/or increase operating costs. Such outcomes could result in lower revenue and earnings as well as possible impairment charges for infrastructure improvements supporting operation of the thermal recycling unit. It is also possible that as a result of the U.S. EPAs final position we would be required or voluntarily choose to discontinue thermal recycling services, either temporarily or permanently, and we may pursue legal action in an attempt to avoid such an outcome. In the three months ended March 31, 2012 total revenue earned from our thermal recycling service was 12% ($3.9 million) of total revenue and 13% ($871,000) of total operating income. In 2011, total revenue earned from our thermal recycling service was 11% ($17.2 million) of total revenue and 11% ($3.7 million) of total operating income. Pending additional information or resolution of this matter, we are unable to estimate the timing or financial impact, if any, and therefore have not recorded any charges for resolution of this matter as of March 31, 2012.
Other than the above matter, we are not currently a party to any material pending legal proceedings and are not aware of any other claims that could have a materially adverse effect on our financial position, results of operations or cash flows.
The Company is subject to various risks and uncertainties that could have a material impact on our business, financial condition, results of operations and cash flows. The discussion of these risk factors is included in Part I, Item 1A of the Companys Annual Report on Form 10-K for the fiscal year ended December 31, 2011, and is updated for the following:
If we fail to comply with applicable laws and regulations our business could be adversely affected.
The changing regulatory framework governing our business creates significant risks. We could be held liable if our operations cause contamination of air, groundwater or soil or expose our employees or the public to contamination. Under current law, we may be held liable for damage caused by conditions that existed before we acquired the assets or operations involved. Also, we may be liable if we arrange for the transportation, disposal or treatment of hazardous substances that cause environmental contamination at facilities operated by others, or if a predecessor made such arrangements and we are a successor. Liability for environmental damage could have a material adverse effect on our financial condition, results of operations and cash flows.
Stringent regulations of federal, state or provincial governments have a substantial impact on our business. Local government controls also apply. Many complex laws, rules, orders and regulatory interpretations govern environmental protection, health, safety, noise, visual impact, odor, land use, zoning, transportation and related matters. Failure to obtain on a timely basis or comply with applicable federal, state, provincial and local governmental regulations, licenses, permits or approvals for our waste treatment and disposal facilities could prevent or restrict our ability to provide certain services, resulting in a potentially significant loss of revenue and earnings. Changes in environmental regulations, or laws or changes in the enforcement or interpretation of existing laws, regulations or permitted activities may require us to make significant capital investments or other expenditures, or may require us to modify existing operating licenses or permits, or obtain additional approvals or could potentially cause us to limit, curtail, suspend or cease certain operations resulting in potential lost revenue or profitability or impairment charges. New governmental requirements that raise compliance standards or require changes in operating practices or technology may impose significant costs and/or limit operations.
From time to time, we have paid fines or penalties in governmental environmental enforcement proceedings involving compliance with applicable and changing regulatory standards. Although none of these fines or penalties that we have paid in the past has had a material effect upon our financial condition or position, in the future, we may be required to make substantial expenditures as a result of regulatory proceedings which would have a negative impact on our earnings. Furthermore, regulators have the power to suspend or revoke permits or licenses needed for operation of our facilities based on, among other factors, our compliance record. As a result, customers may decide not to use a particular disposal facility or do business with us because of concerns about our compliance record. Further, the U.S. EPA, in their regulatory role may overrule decisions and interpretations of the various State regulators that have primary regulatory jurisdiction over the facilities we operate or independently impose financial penalties. Suspension, revocation of permits or licenses, or determinations that require additional regulatory permits could impact our operations, and could require us to cease operations of certain business lines at our facilities, potentially resulting in a material impact on our financial condition, results of operations and cash flows.
Our revenues are primarily generated as a result of requirements imposed on our customers under federal, state, and provincial laws and regulations to protect public health and the environment. If requirements to comply with laws and regulations governing management of PCB, hazardous or radioactive waste were relaxed or less vigorously enforced, demand for our services could materially decrease and our revenues and earnings could be significantly reduced.
ITEM 2. UNREGISTERED SALES OF EQUITY SECURITIES AND USE OF PROCEEDS
None.
ITEM 3. DEFAULTS UPON SENIOR SECURITIES
None.
ITEM 4. MINE SAFETY DISCLOSURES
Not applicable.
None.
10.61 |
|
*Management Incentive Plan Effective January 1, 2012 |
|
|
|
15 |
|
Letter re: Unaudited Interim Financial Statements |
|
|
|
31.1 |
|
Certification of CEO Pursuant to Section 302 of the Sarbanes-Oxley Act of 2002 |
|
|
|
31.2 |
|
Certification of CFO Pursuant to Section 302 of the Sarbanes-Oxley Act of 2002 |
|
|
|
32 |
|
Certification Pursuant to 18 U.S.C. Section 1350, as Adopted Pursuant to Section 906 of the Sarbanes-Oxley Act of 2002 |
|
|
|
99.1 |
|
Second Amendment to the Credit Agreement, dated January 13, 2012, by and among US Ecology, Inc., the guarantors party thereto and Wells Fargo Bank, National Association |
|
|
|
101 |
|
The following materials from the quarterly report on Form 10-Q of US Ecology, Inc. for the quarter ended March 31, 2012 formatted in Extensible Business Reporting Language (XBRL) include: (i) Unaudited Consolidated Balance Sheets, (ii) Unaudited Consolidated Statements of Operations, (iii) Unaudited Consolidated Statements of Comprehensive Income, (iv) Unaudited Consolidated Statements of Cash Flows, and (v) Notes to the Unaudited Consolidated Financial Statements tagged as blocks of text. |
* Identifies management contracts or compensatory plans or arrangements required to be filed as an exhibit hereto.
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.
|
US Ecology, Inc. |
|
(Registrant) |
|
|
Date: May 8, 2012 |
/s/ Jeffrey R. Feeler |
|
Jeffrey R. Feeler |
|
Vice President and |
|
Chief Financial Officer |
EXHIBIT 10.61
2012 MANAGEMENT INCENTIVE PLAN
I. PURPOSE
The US Ecology, Inc. 2012 Management Incentive Plan (Plan) provides a variable component of compensation for certain employees of US Ecology, Inc. and its United States operating facilities (collectively Company) for achievement of objectives set by the US Ecology, Inc. Board of Directors during the 2012 calendar year (Plan Year). The Plan is designed to align the interests of employees with those of stockholders and attract, motivate and retain management critical to the long-term success of the Company.
II. ADMINISTRATION
The administrator of the Plan shall be the Compensation Committee of US Ecology, Inc.s Board of Directors (Administrator). The Administrator, or its designee, shall have full power, discretion and authority to, among other things, interpret the Plan and verify all amounts paid under the Plan and establish rules and procedures for its administration, as deemed necessary and appropriate. The Administrator may rely on opinions, reports or statements of officers of US Ecology, Inc., public accountants and other professionals. The calculation of any amounts to be paid under the Plan shall be performed by US Ecology, Inc.s Chief Financial Officer and submitted by US Ecology, Inc.s Chief Executive Officer (CEO) to the Administrator for approval. Any interpretation of the Plan or act of the Administrator, or its designee, in administering the Plan shall be final and binding, unless the CEO requests review of any finding or interpretation of the Administrator by the Board of Directors of US Ecology, Inc., in which case the Board of Directors finding or interpretation shall be final and binding.
No member of the Board of Directors of US Ecology, Inc. shall be liable for any action, interpretation or construction made in good faith with respect to the Plan. US Ecology, Inc. shall indemnify, to the fullest extent permitted by law, each member of its Board of Directors who may become liable in any civil action or proceeding with respect to decisions made relating to the Plan.
III. ELIGIBILITY
Eligibility to participate in the Plan is limited to designated employees of the Company (each a Participant) and shall be evidenced by a letter from the CEO. The CEO shall submit, no less than annually, a list of participants and participation levels to the Administrator. Participation in the Plan does not guarantee participation (at all or at the same or similar level) in any subsequent plan or performance period.
To be eligible to receive an award under the Plan, a Participant must have been employed by the Company on a full-time basis during the Plan Year and, except in the event of a Participants death, on the date of any payment under the Plan. For the sake of clarity, a Participant whose employment has been terminated, for any reason whatsoever (except for death), prior to
payment under the Plan, shall not be eligible to receive a payment hereunder, except as may be approved by the CEO.
a. New Hire/ Rehire A Participant whose employment with the Company began during the Plan Year shall be eligible for an award on a pro-rata basis, provided the CEO has approved participation and other conditions of the Plan are satisfied. An award will be pro-rated based upon the number of calendar days the Participant is employed in an eligible position during the Plan Year. In the case of rehires, there shall be no credit for prior service.
b. Leave of Absence A Participant who is absent from full-time employment with the Company for more than thirteen consecutive weeks of the Plan Year shall not be eligible for payment under the Plan; unless the CEO approves participation in writing.
c. Promotion If a Participant is promoted to an eligible position or from one eligible position to another eligible position (with a higher award potential) during the Plan Year, a pro-rated award will be calculated by factoring the number of calendar days in each eligible position and considering the Target Incentive during the Participants tenure in each position.
d. Demotion If a Participant is demoted from an eligible position during the Plan Year, such Participant shall be deemed ineligible for receipt of any payments under the Plan; unless otherwise approved in writing by the CEO.
e. Removal from Plan A Participant may be removed from the Plan or an award adjusted, including elimination of any right to an award under the Plan, for insubordination, misconduct, malfeasance, or any formal disciplinary action taken by the Company during the Plan Year or prior to payment.
IV. INCENTIVE AWARD
Prior to the beginning of the Plan Year or at the time of employment (whichever is later), the CEO shall establish and the Administrator shall approve the objectives (each a Plan Objective) that must be achieved for a Participant to receive payment of all or a portion of his/her target incentive amount, which amount is the product of the Participants annual salary and an established percentage (Target Incentive), except that the Plan Objectives and Target Incentives for the executive officers of US Ecology, Inc. shall be established by US Ecology, Inc.s Board of Directors.
Payments under the Plan, if any, shall be made to a Participant upon certification by the CEO that such payments are authorized by the Administrator and all applicable criteria have been satisfied. Payments shall be made within a reasonable time after approval and availability of US Ecology, Inc.s final audited Plan Year financial statements.
V. PLAN OBJECTIVES
Plan Objectives fall into one of three categories: a) Financial (80% of Target Incentive), b) Health and Safety (10% of Target Incentive), and c) Compliance (10% of Target Incentive). Plan Objectives are independent and mutually exclusive from each other, so that the applicable percentage of the Target Incentive may be earned if one Plan Objective is met, even if the threshold performance is not met for another Plan Objective.
a. Financial The Financial Plan Objective is based on US Ecology, Inc.s consolidated 2012 budgeted operating income (Consolidated Operating Income Target) and, for some designated Participants, the 2012 budgeted operating income will include an operating income target for the site at which the Participant is employed (Site Operating Income Target) (each an Operating Income Target). Achievement will be determined by comparing actual financial results (based on audited financial information) to the actual Operating Income Targets achieved. For a Participant employed at the corporate office, achievement of the Consolidated Operating Income Target will be weighted at 80% of his/her Target Incentive. For a Participant employed at an operating facility, achievement of the Consolidated Operating Income Target will be weighted at 50% of his/her Target Incentive and achievement of the Site Operating Income Target at 30%.
The Consolidated Operating Income Target shall be determined as follows:
Consolidated Operating Income | ||
Plus: |
|
Target Incentive earned and budgeted to all Participants, assuming each Plan Objective is achieved at 100% of target |
Plus/Minus: |
|
Other expense/income excluded by Administrator |
Equals |
|
Consolidated Operating Income Target |
The Site Operating Income Target shall be determined as follows:
Site Operating Income | ||
Plus: |
|
Target Incentive earned and budgeted to all Participants employed at the site, assuming each Plan Objective is achieved at 100% of target |
Plus/Minus: |
|
Other expense/income excluded by Administrator |
Equals |
|
Site Operating Income Target |
The Administrator, in its sole discretion, may include or exclude certain non-recurring or special transactions for purposes of determining the amount of an award under the Plan unless the CEO requests a review of the Administrators inclusion or exclusion by US Ecology, Inc.s Board of Directors, in which case the Board of Directors finding or interpretation shall be final and binding.
The portion of a Participants Target Incentive he or she may receive based on operating income results (Finance Target Incentive) is scalable. For every percentage point achievement over 85% of an Operating Income Target, up to and including 99% (rounded to the nearest percentage), a Participant shall earn 5% of the respective Finance Target Incentive. Upon 100% achievement of an Operating Income Target, 100% of the respective Finance Target Incentive shall be available to a Participant. For the sake of clarity, the 1% increase in achievement of an Operating Income Target from 99% to 100% shall result in an increase from 70% to 100% of the respective Finance Target Incentive.
By way of example, a Participant with an annual base salary of $100,000 who has a Target Incentive of 35%, and whose metric includes both a Consolidated Operating Income Target and a Site Operating Income Target, would receive the following amounts based on various
levels of achievement. For this example, the Consolidated Operating Income Target is weighted at 50% of the Target Incentive and Site Operating Income Target is weighted at 30%.
EXAMPLE
CONSOLIDATED OPERATING INCOME TARGET |
|
SITE OPERATING INCOME TARGET |
| ||||||||||||||
(WEIGHTED 50% OF TARGET INCENTIVE) |
|
(WEIGHTED 30% OF TARGET INCENTIVE) |
| ||||||||||||||
Achievement |
|
% of Award |
|
Cumulative |
|
Payout |
|
Achievement |
|
% of Award |
|
Cumulative |
|
Payout |
| ||
85 |
% |
0 |
% |
0 |
% |
$ |
0 |
|
85 |
% |
0 |
% |
0 |
% |
$ |
0 |
|
86 |
% |
5 |
% |
5 |
% |
$ |
875 |
|
86 |
% |
5 |
% |
5 |
% |
$ |
525 |
|
87 |
% |
5 |
% |
10 |
% |
$ |
1,750 |
|
87 |
% |
5 |
% |
10 |
% |
$ |
1,050 |
|
88 |
% |
5 |
% |
15 |
% |
$ |
2,625 |
|
88 |
% |
5 |
% |
15 |
% |
$ |
1,575 |
|
89 |
% |
5 |
% |
20 |
% |
$ |
3,500 |
|
89 |
% |
5 |
% |
20 |
% |
$ |
2,100 |
|
90 |
% |
5 |
% |
25 |
% |
$ |
4,375 |
|
90 |
% |
5 |
% |
25 |
% |
$ |
2,625 |
|
91 |
% |
5 |
% |
30 |
% |
$ |
5,250 |
|
91 |
% |
5 |
% |
30 |
% |
$ |
3,150 |
|
92 |
% |
5 |
% |
35 |
% |
$ |
6,125 |
|
92 |
% |
5 |
% |
35 |
% |
$ |
3,675 |
|
93 |
% |
5 |
% |
40 |
% |
$ |
7,000 |
|
93 |
% |
5 |
% |
40 |
% |
$ |
4,200 |
|
94 |
% |
5 |
% |
45 |
% |
$ |
7,875 |
|
94 |
% |
5 |
% |
45 |
% |
$ |
4,725 |
|
95 |
% |
5 |
% |
50 |
% |
$ |
8,750 |
|
95 |
% |
5 |
% |
50 |
% |
$ |
5,250 |
|
96 |
% |
5 |
% |
55 |
% |
$ |
9,625 |
|
96 |
% |
5 |
% |
55 |
% |
$ |
5,775 |
|
97 |
% |
5 |
% |
60 |
% |
$ |
10,500 |
|
97 |
% |
5 |
% |
60 |
% |
$ |
6,300 |
|
98 |
% |
5 |
% |
65 |
% |
$ |
11,375 |
|
98 |
% |
5 |
% |
65 |
% |
$ |
6,825 |
|
99 |
% |
5 |
% |
70 |
% |
$ |
12,250 |
|
99 |
% |
5 |
% |
70 |
% |
$ |
7,350 |
|
100 |
% |
30 |
% |
100 |
% |
$ |
17,500 |
|
100 |
% |
30 |
% |
100 |
% |
$ |
10,500 |
|
Assuming 90% achievement of the Consolidated Operating Income Target and 95% of the Site Operating Income Target, the Participant in this example would be entitled to $9,625, calculated as follows:
|
|
CONSOLIDATED |
|
SITE OPERATING |
|
TOTAL |
| |||
Annual Salary |
|
$ |
100,000 |
|
$ |
100,000 |
|
|
| |
Target Incentive |
|
x 35 |
% |
x 35 |
% |
|
| |||
Target Incentive Award |
|
$ |
35,000 |
|
$ |
35,000 |
|
|
| |
Financial Objective Weight |
|
x 50 |
% |
x 30 |
% |
|
| |||
Weighted Target Incentive Award |
|
$ |
17,500 |
|
$ |
10,500 |
|
|
| |
Cumulative Award Percent Earned |
|
x 25 |
% |
x 50 |
% |
|
| |||
Earned Award |
|
$ |
4,375 |
|
$ |
5,250 |
|
$ |
9,625 |
|
If the Consolidated Operating Income Target or Site Operating Income Target is exceeded, a Participant shall be eligible for an additional amount, calculated by multiplying the Participants annual salary by a stated percentage (Excess Percentage) for every 1%, or fraction thereof, over the respective Operating Income Target and the resulting product by the respective Operating Income Target weight (Additional Finance Incentive). Continuing with the example above and assuming instead a 105% achievement of the Consolidated
Income Target and an Excess Percentage of 1.25%, the Participant would be entitled to $25,875 calculated as follows:
|
|
CONSOLIDATED |
|
SITE OPERATING |
|
TOTAL |
| |||
|
|
|
|
|
|
|
| |||
FINANCE TARGET INCENTIVE |
|
|
|
|
|
|
| |||
Annual Salary |
|
$ |
100,000 |
|
$ |
100,000 |
|
|
| |
Target Incentive |
|
x 35 |
% |
x 35 |
% |
|
| |||
Target Incentive Award |
|
$ |
35,000 |
|
$ |
35,000 |
|
|
| |
Financial Objective Weight |
|
x 50 |
% |
x 30 |
% |
|
| |||
Weighted Finance Target Incentive Award |
|
$ |
17,500 |
|
$ |
10,500 |
|
|
| |
Cumulative Award Percent Earned |
|
x 100 |
% |
x 50 |
% |
|
| |||
|
|
$ |
17,500 |
|
$ |
5,250 |
|
|
| |
|
|
|
|
|
|
|
| |||
ADDITIONAL FINANCE INCENTIVE |
|
|
|
|
|
|
| |||
Annual Salary |
|
$ |
100,000 |
|
$ |
100,000 |
|
|
| |
Cumulative Excess Percentage (5 x 1.25%) |
|
x 6.25 |
% |
x 0 |
% |
|
| |||
Additional Finance Incentive Award |
|
$ |
6,250 |
|
$ |
0 |
|
|
| |
Financial Objective Weight |
|
x 50 |
% |
x 30 |
% |
|
| |||
Weighted Additional Finance Incentive Award |
|
$ |
3,125 |
|
$ |
0 |
|
|
| |
|
|
|
|
|
|
|
| |||
Finance Target Incentive |
|
$ |
17,500 |
|
$ |
5,250 |
|
|
| |
Additional Finance Incentive |
|
$ |
3,125 |
|
$ |
0 |
|
|
| |
|
|
|
|
|
|
|
| |||
Earned Award |
|
$ |
20,625 |
|
$ |
5,250 |
|
$ |
25,875 |
|
b. Health and Safety - The metrics for this Plan Objective are identified below and are weighted cumulatively at 10% of a Participants Target Incentive and individually at 2.5%. Each metric is independent and mutually exclusive from the other metrics, so that a percentage of the Target Incentive related to Health and Safety (Health and Safety Target Incentive) may be earned independent of achievement of any other Health and Safety metric or other Plan Objective.
i. Training Hours (2.5% Weight) The Target Incentive related to Training Hours shall be earned on a sliding scale based on the number of training hours conducted during the Plan Year by the site at which a Participant is employed or, for some Participants, by the Company as a whole.
ii. OSHA Designation (2.5% Weight) The Target Incentive related to OSHA designation shall be earned if the site at which the Participant is employed maintains its OSHA designation (e.g. STAR and SHARP) as determined on December 31, 2011 or, for some
Participants, if each of US Ecology, Inc.s operating facilities maintains its respective OSHA or other specified designation.
iii. Total Case Rate (TCR) (2.5% Weight) The Target Incentive related to TCR shall be earned if Company-wide objective is achieved as determined by the CEO and reviewed by the Administrator.
iv. Days Away Restricted Time (DART) (2.5% Weight) The Target Incentive related to DART shall be earned if Company-wide objective is achieved as determined by the CEO and reviewed by the Administrator.
c. Compliance The metric for this Plan Objective is the avoidance of Notices of Violation or Enforcement with monetary penalties during the Plan Year and is weighted at 10% of a Participants Target Incentive. The Target Incentive related to Compliance (Compliance Target Incentive) shall be earned on a sliding scale based on the dollar amount of a monetary penalty paid (or accrued under generally accepted accounting principles GAAP) in the Plan Year by the site at which a Participant is employed or, in some cases, the total dollar amount of all monetary penalties paid (or accrued under GAAP) in the Plan Year by each of the US Ecology, Inc. operating facilities or the Company as a whole. This metric is independent so that a percentage of the Compliance Target Incentive may be earned independent and mutually exclusive of achievement of any other Plan Objective.
The CEO will establish in writing a schedule for each Participant, setting forth the applicable Plan Objectives, targets, weights and such other information as may be determined (attached hereto as Exhibit A).
VI. MISCELLANEOUS
a. Interests Not Transferable Any interests of a Participant under the Plan may not be voluntarily sold, transferred, alienated, assigned or encumbered, other than by will or pursuant to the laws of decent and distribution. Notwithstanding the foregoing, if a Participant dies during the Plan Year, or prior to payment of an award, then a pro-rata portion of the award that would otherwise be paid to such deceased Participant based on the number of calendar days employed in an eligible position during the Plan Year shall be paid to the deceaseds beneficiary, as designated in writing by such Participant (attached hereto as Exhibit B); provided however, that if the deceased Participant has not designated a beneficiary then such amount shall be payable to the deceased Participants estate. Payment to a Participants estate or beneficiary pursuant hereto shall be made in at the time other Participants are paid.
b. Withholding Taxes The Company shall withhold from any amounts payable under the Plan applicable withholding including federal, state, city and local taxes, FICA and Medicare as shall be legally required. Additionally, the Company will withhold from any amounts payable under the Plan, the applicable contribution for the Participants 401(k) Savings and Retirement Plan as defined in the US Ecology, Inc. 401(K) Plan description protected under ERISA.
c. No Right of Employment Nothing in this Plan will be construed as creating any contract of employment or conferring upon any Participant any right to continue in the employ or other service of the Company or limit in any way the right of Company to change such persons compensation or other benefits or to terminate the employment or other service of such person with or without cause.
d. No Representations The Company does not represent or guarantee that any particular federal or state income, payroll, personal property or other tax consequence will result from participation in the Plan.
e. Section Headings The section headings contained herein are for convenience only and, in the event of any conflict, the text of the Plan, rather than the section headings, will control.
f. Severability In the event any provision of the Plan shall be held to be illegal or invalid for any reason, such illegality or invalidity shall not affect the remaining parts of the Plan, and the Plan shall be construed and enforced as if such illegal or invalid provisions had never been contained in the Plan.
g. Invalidity If any term or provision contained herein is to any extent invalid or unenforceable, such term or provision shall be reformed so that it is valid, and such invalidity or unenforceability shall not affect any other provision or part hereof.
h. Applicable Law Except to the extent superseded by the laws of the United States, the laws of the State of Idaho, without regard to its conflicts of laws principles, shall govern in all matters relating to the Plan.
i. Effective on Other Plans Payments or benefits provided to a Participant under any stock, deferred compensation, savings, retirements or other employee benefit plan are governed solely by the terms of each of such plans.
j. Effective Date The Plan is effective as of January 1, 2012.
EXHIBIT A
EXAMPLE INCENTIVE SCHEDULE - SITE
Participant
John Smith
Position
General Manager
Site
US Ecology Arizona, Inc.
Target Incentive (expressed as a percentage of Base Salary): 35%
Excess Percentage (expressed as a percentage of Base Salary): 1.25%
Plan Objectives/ Weight/ Target Amount
a. Financial (80% of Target Incentive)
i. Consolidated Operating Income Target (50%) $25,000,000
ii. Site Operating Income Target (30%) $10,000,000
b. Health and Safety (10% of Target Incentive) (Site)
i. Training Hours (2.5%) 500
Scalable at percentage of completion, but with a minimum threshold of 85% of target (complete 420 hours or 84% of target - receive 0% of 2.5%) (complete 450 hours or 90% of target - receive 90% of 2.5%)
ii. OSHA Designation (2.5%) (Site) Maintain SHARP status
iii. TCR (2.5%) (Corporate) 3.70
iv. DART (2.5%) (Corporate) 1.99
c. Compliance (10% of Target Incentive) (Site)
Monetary Penalty |
|
% of Compliance Target |
|
$0 - $25,000 |
|
100 |
% |
|
|
|
|
$25,001 $50,000 |
|
50 |
% |
|
|
|
|
Over $50,000 |
|
0 |
% |
EXAMPLE INCENTIVE SCHEDULE - CORPORATE
Participant
Jane Doe
Position
Accounting Manager
Site
Corporate
Target Incentive (expressed as a percentage of Base Salary): 10%
Excess Percentage (expressed as a percentage of Base Salary): 1.25%
Plan Objectives/ Weight/ Target Amount
a. Financial (80% of Target Incentive)
i. Consolidated Operating Income Target (80%) $25,000,000
ii. Site Operating Income Target (0%) N/A
b. Health and Safety (10% of Target Incentive) (Company-wide)
i. Training Hours (2.5%) (Company-wide) 2,500
Scalable at percentage of completion, but with a minimum threshold of 85% of target (complete 2,100 hours or 84% of target - receive 0% of 2.5%) (complete 2,250 hours or 90% of target - receive 90% of 2.5%)
ii. Safety and Health Designation (2.5%) (Company-wide) Maintain all existing VPP and SHARP status at all US Ecology sites.
iii. TCR (2.5%) (Company-wide) 3.70
iv. DART (2.5%) (Company-wide) 1.99
c. Compliance (10% of Target Incentive) (Company-wide)
Monetary Penalty |
|
% of Compliance Target |
|
$0 - $75,000 |
|
100 |
% |
|
|
|
|
$75,001 $150,000 |
|
50 |
% |
|
|
|
|
Over $150,000 |
|
0 |
% |
EXHIBIT B
BENEFICIARY DESIGNATION
I hereby designate the following person or persons as Beneficiary to receive any management incentive payments due under the attached US Ecology, Inc. 2012 Management Incentive Plan, effective January 1, 2012, in the event of my death, reserving the full right to revoke or modify this designation, or any modification thereof, at any time by a further written designation:
Primary Beneficiary |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Name of Individual |
|
Relationship to me |
|
Birth Date (if minor) |
|
|
|
|
|
|
|
|
|
|
|
|
|
Address |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Name of Trust |
|
Date of Trust |
|
|
|
|
|
|
|
|
|
Provided, however, that if such Primary Beneficiary shall not survive me by at least sixty (60) days, the following shall be the Beneficiary: | |||||
|
|
|
|
|
|
Contingent Beneficiary |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Name of Individual |
|
Relationship to me |
|
Birth Date (if minor) |
|
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|
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|
|
|
|
|
|
|
|
Address |
|
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|
|
|
|
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|
|
|
|
|
|
|
|
|
Name of Trust |
|
Date of Trust |
|
|
|
|
|
|
|
|
|
This Beneficiary Designation shall not affect any other beneficiary designation form that I may have on file with US Ecology, Inc. regarding benefits other than that referred to above. | |||||
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Date |
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Name |
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Signature |
|
|
|
|
|
EXHIBIT 15
We have reviewed, in accordance with the standards of the Public Company Accounting Oversight Board (United States), the unaudited interim financial information of US Ecology, Inc. and subsidiaries for the three-month periods ended March 31, 2012, and 2011, as indicated in our report dated May 8, 2012; because we did not perform an audit, we expressed no opinion on that information.
We are aware that our report referred to above, which is included in your Quarterly Report on Form 10-Q for the quarter ended March 31, 2012, is incorporated by reference in Registration Statement Nos. 333-157529, 333-68868, 333-93105, 333-140419, and 333-69863 on Form S-8 and Registration Statement Nos. 333-126424 and 333-35261 on Form S-3.
We also are aware that the aforementioned report, pursuant to Rule 436(c) under the Securities Act of 1933, is not considered a part of the Registration Statement prepared or certified by an accountant or a report prepared or certified by an accountant within the meaning of Sections 7 and 11 of that Act.
/s/ Deloitte & Touche LLP |
|
|
|
Boise, Idaho |
|
|
|
|
May 8, 2012 |
EXHIBIT 31.1
US ECOLOGY, INC.
CERTIFICATIONS PURSUANT TO SECTION 302 OF
THE SARBANES-OXLEY ACT OF 2002
CERTIFICATION
I, James R. Baumgardner, certify that:
1. I have reviewed this quarterly report on Form 10-Q of US Ecology, Inc.;
2. Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;
3. Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report;
4. The registrants other certifying officer and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and have:
a) Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared;
b) Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles;
c) Evaluated the effectiveness of the registrants disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and
d) Disclosed in this report any change in the registrants internal control over financial reporting that occurred during the registrants most recent fiscal quarter (the registrants fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrants internal control over financial reporting; and
5. The registrants other certifying officer and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrants auditors and the audit committee of the registrants board of directors (or persons performing the equivalent functions):
a) All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrants ability to record, process, summarize and report financial information; and
b) Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrants internal control over financial reporting.
Date: May 8, 2012 |
/s/ James R. Baumgardner |
|
James R. Baumgardner |
EXHIBIT 31.2
US ECOLOGY, INC.
CERTIFICATIONS PURSUANT TO SECTION 302 OF
THE SARBANES-OXLEY ACT OF 2002
CERTIFICATION
I, Jeffrey R. Feeler, certify that:
1. I have reviewed this quarterly report on Form 10-Q of US Ecology, Inc.;
2. Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;
3. Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report;
4. The registrants other certifying officer and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and have:
a) Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared;
b) Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles;
c) Evaluated the effectiveness of the registrants disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and
d) Disclosed in this report any change in the registrants internal control over financial reporting that occurred during the registrants most recent fiscal quarter (the registrants fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrants internal control over financial reporting; and
5. The registrants other certifying officer and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrants auditors and the audit committee of the registrants board of directors (or persons performing the equivalent functions):
a) All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrants ability to record, process, summarize and report financial information; and
b) Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrants internal control over financial reporting.
Date: May 8, 2012 |
/s/ Jeffrey R. Feeler |
|
Jeffrey R. Feeler |
EXHIBIT 32
CERTIFICATION PURSUANT TO
18 U.S.C. SECTION 1350,
AS ADOPTED PURSUANT TO
SECTION 906 OF THE SARBANES-OXLEY ACT OF 2002
In connection with the Quarterly Report on Form 10-Q of US Ecology, Inc., (the Company) for the quarterly period ended March 31, 2012, as filed with the Securities and Exchange Commission on the date hereof (the Report), we, James R. Baumgardner and Jeffrey R. Feeler, Chief Executive Officer and Chief Financial Officer, respectively, of the Company, certify, pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002, that to our knowledge:
1. The Report fully complies with the requirements of section 13(a) or 15(d) of the Securities Exchange Act of 1934; and
2. The information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of the Company as of the dates and for the periods expressed in the Report.
Date: May 8, 2012 |
/s/ James R. Baumgardner |
|
James R. Baumgardner |
|
|
|
|
|
/s/ Jeffrey R. Feeler |
|
Jeffrey R. Feeler |
EXHIBIT 99.1
SECOND AMENDMENT TO THE
CREDIT AGREEMENT
THIS SECOND AMENDMENT TO THE CREDIT AGREEMENT (this Amendment) is made and entered into effective as of January 13, 2012, by and between WELLS FARGO BANK, NATIONAL ASSOCIATION (Bank), and US ECOLOGY, INC., a Delaware corporation (Borrower).
RECITALS
A. Borrower and Bank entered into a Credit Agreement, dated as of October 29, 2010 (as amended, modified, or supplemented from time to time, the Credit Agreement).
B. Borrower and Bank want to amend the Credit Agreement to modify the Margins and commitment and letter of credit fees.
C. Bank is willing to amend the Credit Agreement upon the terms and conditions of this Amendment.
AMENDMENT
NOW, THEREFORE, the parties agree as follows.
DEFINITIONS.
Except as specifically defined otherwise in this Amendment, all of the terms herein shall have the same meaning as contained in the Credit Agreement.
AMENDMENTS.
Amendment to Article 7 Financial Covenants.
Paragraph 2.4.4.1 of the Credit Agreement is amended to modify the Prime Margins, the LIBOR Margins, the Commitment Margins, and the L/C fees for the Revolving Loans, and the Paragraph shall provide in its entirety as follows:
2.4.4.1 The Prime Margins, the LIBOR Margins, the Commitment Margins, and the L/C fees for the Revolving Loans are as follows:
Funded Debt Ratio |
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Prime |
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LIBOR |
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Commitment |
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L/C Fee |
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less than 1.00:1.00 |
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0.0 |
% |
1.25 |
% |
0.20 |
% |
1.250 |
% |
less than 1.50:1.00 but greater than or equal to 1.00:1.00 |
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0.0 |
% |
1.50 |
% |
0.25 |
% |
1.500 |
% |
less than 2.00:1.00 but greater than or equal to 1.50:1.00 |
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0.0 |
% |
1.80 |
% |
0.30 |
% |
1.800 |
% |
less than or equal to 2.50:1.00 but greater than or equal to 2.00:1.00 |
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0.35 |
% |
2.20 |
% |
0.35 |
% |
2.200 |
% |
greater than 2.50:1.00 |
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0.35 |
%* |
2.20 |
%* |
0.35 |
% |
2.200 |
%* |
*Plus increase for an Event of Default pursuant to Section 2.7, if applicable.
Paragraph 2.4.4.2 of the Credit Agreement is amended to modify the Prime Margins, the LIBOR Margins, and the Commitment Margins for the Reducing Revolving Loans, and the Paragraph shall provide in its entirety as follows:
2.4.4.2 The Prime Margins, the LIBOR Margins, and the Commitment Margins for the Reducing Revolving Loans are as follows:
Funded Debt Ratio |
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Prime |
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LIBOR |
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Commitment |
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less than 1.00:1.00 |
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0.0 |
% |
1.25 |
% |
0.20 |
% |
less than 1.50:1.00 but greater than or equal to 1.00:1.00 |
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0.0 |
% |
1.50 |
% |
0.25 |
% |
less than 2.00:1.00 but greater than or equal to 1.50:1.00 |
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0.0 |
% |
1.80 |
% |
0.30 |
% |
less than or equal to 2.50:1.00 but greater than or equal to 2.00:1.00 |
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0.35 |
% |
2.20 |
% |
0.35 |
% |
greater than 2.00:1.00 |
|
0.35 |
%* |
2.20 |
%* |
0.35 |
% |
*Plus increase for an Event of Default pursuant to Section 2.7, if applicable.
CONDITIONS PRECEDENT.
As conditions precedent to Banks obligation to extend the financial accommodations provided for in this Amendment, Borrower shall execute and deliver, or cause to be executed and delivered, to Bank, in form and substance satisfactory to Bank and its counsel, the following:
Evidence of all Corporate Action by Borrower.
Certified copies of all corporate action taken by Borrower authorizing its execution and delivery of this Amendment and each other document to be delivered pursuant to this Amendment and its performance of its agreements thereunder.
Certificates of Existence.
Certificates of good standing or existence that Bank may reasonably require showing that Borrower is in good standing under the laws of the state of its incorporation.
Public Record Searches.
Uniform Commercial Code financing statement searches, federal and state income tax lien searches, judgment or litigation searches, or other similar searches that Bank may reasonably require and in such form as Bank may reasonably require.
Additional Documentation.
Such other approvals, opinions, or documents as Bank may reasonably request.
REAFFIRMATION OF LOAN DOCUMENTS.
Borrower acknowledges and reaffirms all existing security agreements, financing statements, and any other documents executed in connection with the Credit Agreement. Borrower further acknowledges and agrees that the Obligations shall be secured by all collateral to be granted by Borrower to secure a proposed term loan from Bank to Borrower.
BORROWERS COVENANTS, REPRESENTATIONS, AND WARRANTIES.
In order to induce Bank to enter into this Amendment and to amend the Credit Agreement in the manner provided herein, Borrower acknowledges and reaffirms as true, correct, and complete in all material respects on and as of the date of this Amendment all covenants, representations, and warranties made by Borrower in the Credit Agreement and the other Loan Documents to the same extent as though made on and as of the date of execution of this Amendment. Borrower represents and warrants that the execution, delivery, and performance by the Borrower of this Amendment has been duly authorized by all necessary corporate action. Borrower further represents and warrants that there are no Events of Default or facts which constitute, or with the passage of time and without change will constitute, an Event of Default under the Loan Documents. Borrower further represents that there has been no material adverse change in Borrowers business or financial condition from that reflected in the most recent of Borrowers financial statements that have been delivered to Bank. Borrower further represents and warrants that Borrower has no claims or causes of action of any kind whatsoever against Bank or any of Banks present or former employees, officers, directors, attorneys, or agents of any kind in their capacity as such (collectively, the Released Parties) and further, that the Released Parties have performed all of the respective obligations under the Credit Agreement and other Loan Documents and have complied with all provisions therein set forth. Borrower acknowledges that as of January 13, 2012, the outstanding principal balance of the Revolving Loans is $5,293,789, the outstanding principal balance of the Reducing Revolving Loans is $32,000,000, and the aggregate stated amount of all Letters of Credit outstanding and available for drawing is $4,027,000.
COURSE OF DEALING.
No course of dealing heretofore or hereafter between Borrower and Bank, or any failure or delay on the part of Bank in exercising any rights or remedies under the Credit Agreement or existing by law shall operate as a waiver of any right or remedy of Bank with respect to said indebtedness, and no single or partial exercise of any right or remedy hereunder shall operate as a waiver or preclusion to the exercise of any other rights or remedies Bank may have in regard to said indebtedness.
GOVERNING LAW.
This Amendment is made in the State of Idaho, which state the parties agree has a substantial relationship to the parties and to the underlying transaction embodied hereby. Accordingly, in all respects, this Amendment and the Loan Documents and the obligations arising hereunder and thereunder shall be governed by, and construed in accordance with, the laws of the State of Idaho applicable to contracts made and performed in such state and any applicable law of the United States of America. Each party hereby unconditionally and irrevocably waives, to the fullest extent permitted by law, any claim to assert that the law of any jurisdiction other than the State of Idaho governs this Amendment and the Loan Documents.
COSTS AND EXPENSES.
Borrower shall pay on demand by Bank all expenses incurred by Bank in connection with the preparation, execution, delivery, filing, recording, and administration of this Amendment or any of the documents contemplated hereby, including, without limitation, the reasonable fees and out of pocket expenses of counsel for Bank with respect to this Amendment and the documents and transactions contemplated hereby.
ENTIRE AGREEMENT.
The Credit Agreement as amended by this Amendment together with the other Loan Documents supersedes all prior negotiations, understandings, and agreements between the parties, whether oral or written, and all such negotiations, understandings, and agreements are evidenced by the terms of the Loan Documents. The Credit Agreement may not be further altered or amended in any manner except by a writing signed by Bank and Borrower.
EFFECTS OF THIS AMENDMENT.
This Amendment shall be binding and deemed effective when it is executed by Borrower, accepted and executed by Bank, and all conditions precedent set forth in Section 3 have been fulfilled. All terms, covenants and conditions of the Credit Agreement that have not been modified, amended, or otherwise changed by this Amendment are reaffirmed and remain in full force and effect.
COUNTERPARTS.
This Amendment may be executed in counterparts and may be delivered by facsimile transmission. Each such counterpart shall constitute an original, but all such counterparts shall constitute but one Amendment.
[Signature Page Follows]
IN WITNESS WHEREOF, Borrower has executed this Amendment as of the date first written above.
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BORROWER: | |
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US ECOLOGY, INC. | |
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By |
/s/ Jeffrey R. Feeler |
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Jeffrey R. Feeler |
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Vice President and Chief Financial Officer |
GUARANTORS CONSENT
Each Guarantor consents to, acknowledges, and accepts the forgoing Amendment. Each Guarantor affirms and ratifies its Continuing and Unconditional Guaranty made by Guarantor for the benefit of Bank (the Guaranty), and confirms that the Guaranty remains in full force and effect and binding upon the Guarantor without any setoffs, defenses, or counterclaims of any kind whatsoever.
Dated as of January 13, 2012.
GUARANTORS: |
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US ECOLOGY ILLINOIS, INC. |
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US ECOLOGY TEXAS, INC. | ||
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By |
/s/ Jeffrey R. Feeler |
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By |
/s/ Jeffrey R. Feeler |
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Jeffrey R. Feeler |
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Jeffrey R. Feeler |
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Vice President |
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Vice President |
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AMERICAN ECOLOGY RECYCLE CENTER, INC. |
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AMERICAN ECOLOGY ENVIRONMENTAL SERVICES CORPORATION | ||
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By |
/s/ Jeffrey R. Feeler |
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By |
/s/ Jeffrey R. Feeler |
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Jeffrey R. Feeler |
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Jeffrey R. Feeler |
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Vice President |
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Vice President |
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US ECOLOGY IDAHO, INC. |
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US ECOLOGY NEVADA, INC. | ||
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By |
/s/ Jeffrey R. Feeler |
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By |
/s/ Jeffrey R. Feeler |
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Jeffrey R. Feeler |
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Jeffrey R. Feeler |
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Vice President |
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Vice President |
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US ECOLOGY WASHINGTON, INC. |
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US ECOLOGY FIELD SERVICES, INC. | ||
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By |
/s/ Jeffrey R. Feeler |
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By |
/s/ Jeffrey R. Feeler |
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Jeffrey R. Feeler |
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Jeffrey R. Feeler |
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Vice President |
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Vice President |
US ECOLOGY CALIFORNIA, INC. |
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US ECOLOGY STABLEX HOLDINGS, INC. | ||
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By |
/s/ Jeffrey R. Feeler |
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By |
/s/ Jeffrey R. Feeler |
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Jeffrey R. Feeler |
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Jeffrey R. Feeler |
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Vice President |
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Vice President |
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GULFSTREAM TLC, INC. |
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STABLEX CANADA INC. | ||
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By |
/s/ Jeffrey R. Feeler |
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By |
/s/ Jeffrey R. Feeler |
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Jeffrey R. Feeler |
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Jeffrey R. Feeler |
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Vice President |
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Vice President |
BANKS ACCEPTANCE
Accepted and effective as of January 13, 2012, in the State of Idaho. | ||
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WELLS FARGO BANK, NATIONAL ASSOCIATION | |
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By |
/s/ Michael A. Cenarrusa |
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Michael A. Cenarrusa, Relationship Manager |
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