NEWMARK GROUP, INC. Item 2.02. Results of Operations and Financial Condition.
On
The press release contains non-GAAP financial measures that differ from the most
directly comparable
measures calculated and presented in accordance with Generally Accepted
Accounting Principles in
Adjusted Earnings Defined Newmark uses non-GAAP financial measures, including "Adjusted Earnings before noncontrolling interests and taxes" and "Post-tax Adjusted Earnings to fully diluted shareholders", which are supplemental measures of operating results used by management to evaluate the financial performance of the Company and its consolidated subsidiaries. Newmark believes that Adjusted Earnings best reflect the operating earnings generated by the Company on a consolidated basis and are the earnings which management considers when managing its business.
As compared with "Income (loss) before income taxes and noncontrolling interests" and "Net income (loss) for fully diluted shares", both prepared in accordance with GAAP, Adjusted Earnings calculations primarily exclude certain non-cash items and other expenses that generally do not involve the receipt or outlay of cash by the Company and/or which do not dilute existing stockholders. In addition, Adjusted Earnings calculations exclude certain gains and charges that management believes do not best reflect the ordinary results of Newmark. Adjusted Earnings is calculated by taking the most comparable GAAP measures and making adjustments for certain items with respect to compensation expenses, non-compensation expenses, and other income, as discussed below.
Calculations of Compensation Adjustments for Adjusted Earnings and Adjusted EBITDA
Treatment of Equity-Based Compensation under Adjusted Earnings and Adjusted
EBITDA
* Charges with respect to grants of exchangeability, which reflect the right of
holders of limited partnership units with no capital accounts, such as LPUs
and PSUs, to exchange these units into shares of common stock, or into
partnership units with capital accounts, such as HDUs, as well as cash paid
with respect to taxes withheld or expected to be owed by the unit holder upon
such exchange. The withholding taxes related to the exchange of certain
non-exchangeable units without a capital account
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into either common shares or units with a capital account may be funded by the
redemption of preferred units such as PPSUs.
* Charges with respect to preferred units. Any preferred units would not be
included in the Company's fully diluted share count because they cannot be
made exchangeable into shares of common stock and are entitled only to a
fixed distribution. Preferred units are granted in connection with the grant
of certain limited partnership units that may be granted exchangeability at
ratios designed to cover any withholding taxes expected to be paid by the
unit holder upon exchange. This is an alternative to the common practice
among public companies of issuing the gross amount of shares to employees,
subject to cashless withholding of shares, to pay applicable withholding
taxes.
* GAAP equity-based compensation charges with respect to the grant of an
offsetting amount of common stock or partnership units with capital accounts
in connection with the redemption of non-exchangeable units, including PSUs
and LPUs.
* Charges related to amortization of RSUs and limited partnership units.
* Charges related to grants of equity awards, including common stock or
partnership units with capital accounts.
* Allocations of net income to limited partnership units and FPUs. Such
allocations represent the pro-rata portion of post-tax GAAP earnings
available to such unit holders.
The amounts of certain quarterly equity-based compensation charges are based upon the Company's estimate of such expected charges during the annual period, as described further below under "Methodology for Calculating Adjusted Earnings Taxes".
Virtually all of Newmark's key executives and producers have equity or partnership stakes in the Company and its subsidiaries and generally receive deferred equity or limited partnership units as part of their compensation. A significant percentage of Newmark's fully diluted shares are owned by its executives, partners and employees. The Company issues limited partnership units as well as other forms of equity-based compensation, including grants of exchangeability into shares of common stock, to provide liquidity to its employees, to align the interests of its employees and management with those of common stockholders, to help motivate and retain key employees, and to encourage a collaborative culture that drives cross-selling and revenue growth.
All share equivalents that are part of the Company's equity-based compensation program, including REUs, PSUs, LPUs, certain HDUs, and other units that may be made exchangeable into common stock, as well as RSUs (which are recorded using the treasury stock method), are included in the fully diluted share count when issued or at the beginning of the subsequent quarter after the date of grant. Generally, limited partnership units other than preferred units are expected to be paid a pro-rata distribution based on Newmark's calculation of Adjusted Earnings per fully diluted share.
Certain Other Compensation-Related Items under Adjusted Earnings and Adjusted EBITDA Newmark also excludes various other GAAP items that management views as not reflective of the Company's underlying performance for the given period from its calculation of Adjusted Earnings and Adjusted EBITDA. These may include compensation-related items with respect to cost-saving initiatives, such as severance charges incurred in connection with headcount reductions as part of broad restructuring plans.
Calculation of Non-Compensation Adjustments for Adjusted Earnings and Adjusted EBITDA Newmark's calculation of pre-tax Adjusted Earnings excludes non-cash GAAP charges related to the following:
* Amortization of intangibles with respect to acquisitions.
* Gains attributable to originated mortgage servicing rights (which Newmark
refers to as "OMSRs").
* Amortization of mortgage servicing rights (which Newmark refers to as
"MSRs"). Under GAAP, the Company recognizes OMSRs gains equal to the fair
value of servicing rights retained on mortgage
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loans originated and sold. Subsequent to the initial recognition at fair value,
MSRs are carried at the lower of amortized cost or fair value and amortized in
proportion to the net servicing revenue expected to be earned. However, it is
expected that any cash received with respect to these servicing rights, net of
associated expenses, will increase Adjusted Earnings and Adjusted EBITDA in
future periods.
* Various other GAAP items that management views as not reflective of the
Company's underlying performance for the given period, including
non-compensation-related charges incurred as part of broad restructuring
plans. Such GAAP items may include charges for exiting leases and/or other
long-term contracts as part of cost-saving initiatives, as well as non-cash
impairment charges related to assets, goodwill and/or intangibles created
from acquisitions.
Calculation of Other (income) losses for Adjusted Earnings Adjusted Earnings calculations also exclude certain other non-cash, non-dilutive, and/or non-economic items, which may, in some periods, include:
* Unusual, one-time, non-ordinary or non-recurring gains or losses;
* Non-cash GAAP asset impairment charges;
* The impact of any unrealized non-cash mark-to-market gains or losses on
"Other income (loss)" related to the variable share forward agreements with
respect to Newmark's expected receipt of the Nasdaq payments in 2020, 2021,
and 2022 and the recently settled 2019 Nasdaq payment (the "Nasdaq
Forwards"); and/or
* Mark-to-market adjustments for non-marketable investments;
* Certain other non-cash, non-dilutive, and/or non-economic items.
Methodology for Calculating Adjusted Earnings Taxes Although Adjusted Earnings are calculated on a pre-tax basis, Newmark also reports post-tax Adjusted Earnings to fully diluted shareholders. The Company defines post-tax Adjusted Earnings to fully diluted shareholders as pre-tax Adjusted Earnings reduced by the non-GAAP tax provision described below and net income (loss) attributable to noncontrolling interest for Adjusted Earnings.
The Company calculates its tax provision for post-tax Adjusted Earnings using an annual estimate similar to how it accounts for its income tax provision under GAAP. To calculate the quarterly tax provision under GAAP, Newmark estimates its full fiscal year GAAP income (loss) before noncontrolling interests and taxes and the expected inclusions and deductions for income tax purposes, including expected equity- based compensation during the annual period. The resulting annualized tax rate is applied to Newmark's quarterly GAAP income (loss) before income taxes and noncontrolling interests. At the end of the annual period, the Company updates its estimate to reflect the actual tax amounts owed for the period.
To determine the non-GAAP tax provision, Newmark first adjusts pre-tax Adjusted Earnings by recognizing any, and only, amounts for which a tax deduction applies under applicable law. The amounts include charges with respect to equity-based compensation; certain charges related to employee loan forgiveness; certain net operating loss carryforwards when taken for statutory purposes; and certain charges related to tax goodwill amortization. These adjustments may also reflect timing and measurement differences, including treatment of employee loans; changes in the value of units between the dates of grants of exchangeability and the date of actual unit exchange; variations in the value of certain deferred tax assets; and liabilities and the different timing of permitted deductions for tax under GAAP and statutory tax requirements.
After application of these adjustments, the result is the Company's taxable income for its pre-tax Adjusted Earnings, to which Newmark then applies the statutory tax rates to determine its non-GAAP tax provision. Newmark views the effective tax rate on pre-tax Adjusted Earnings as equal to the amount of its non- GAAP tax provision divided by the amount of pre-tax Adjusted Earnings.
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Generally, the most significant factor affecting this non-GAAP tax provision is the amount of charges relating to equity-based compensation. Because the charges relating to equity-based compensation are deductible in accordance with applicable tax laws, increases in such charges have the effect of lowering the Company's non-GAAP effective tax rate and thereby increasing its post-tax Adjusted Earnings.
Newmark incurs income tax expenses based on the location, legal structure and
jurisdictional taxing authorities of each of its subsidiaries. Certain of the
Company's entities are taxed as
Calculations of Pre- and Post-Tax Adjusted Earnings per Share Newmark's pre- and post-tax Adjusted Earnings per share calculations assume either that:
* The fully diluted share count includes the shares related to any dilutive
instruments, but excludes the associated expense, net of tax, when the impact
would be dilutive; or
* The fully diluted share count excludes the shares related to these
instruments, but includes the associated expense, net of tax.
The share count for Adjusted Earnings excludes certain shares and share equivalents expected to be issued in future periods but not yet eligible to receive dividends and/or distributions. Each quarter, the dividend payable to . . .
ITEM 9.01. FINANCIAL STATEMENTS AND EXHIBITS (d) Exhibits
The exhibit index set forth below is incorporated by reference in response to this Item 9.01.
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