Tutor Perini Corp 10-Q for FY2022 Q1
Tutor Perini Corp (TPC)
10-Q
2022-05-04
For: 2022-03-31
View Original
Added on
April 10, 2026
About this 10-Q
Tutor Perini Corp filed this 10-Q on May 4, 2022, covering the quarter ended March 31, 2022 (FY2022 Q1).
Headline figures
Quarter ended March 31, 2022, as reported in this filing, compared with the same period a year earlier where the filing states it.
- Revenue
- $952.15M
- down 21.2% from $1.21B a year earlier
- Net loss
- $21.63M
- compared with net income of $16.03M a year earlier
- Diluted EPS
- -$0.42
- compared with $0.31 a year earlier
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-Q
(Mark One)
| QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 | ||||||||
| For the quarterly period ended | ||||||||
| or | ||||||||
TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 | ||||||||
| For the transition period from ___________ to ___________ | ||||||||
Commission File Number: 1-6314
(Exact Name of Registrant as Specified in its Charter)
| (State or Other Jurisdiction of Incorporation or Organization) | ||
| (Address of Principal Executive Offices) | ||
| (I.R.S. Employer Identification No.) | ||
| (Zip Code) | ||
(818 ) 362-8391
(Registrant’s Telephone Number, Including Area Code)
None
(Former Name, Former Address and Former Fiscal Year, if Changed Since Last Report)
Securities registered pursuant to Section 12(b) of the Act:
| Title of each class | Trading Symbol(s) | Name of each exchange on which registered | ||||||
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 ☒ No ☐
Indicate by check mark whether the registrant has submitted electronically every Interactive Data File required to be submitted 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 such files). Yes ☒ No ☐
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting company, or an emerging growth company. See the definitions of “large accelerated filer,” “accelerated filer,” “smaller reporting company,” and “emerging growth company” in Rule 12b-2 of the Exchange Act.
| Large accelerated filer | ☐ | ☒ | ||||||||||||||||||||||||
| Non-accelerated filer | ☐ | Smaller reporting company | ||||||||||||||||||||||||
| Emerging growth company | ||||||||||||||||||||||||||
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ☐
Indicate by check mark whether the registrant is a shell company (as defined in Rule 12b-2 of the Exchange Act). Yes ☐ No ☒
The number of shares of common stock, $1.00 par value per share, of the registrant outstanding at April 28, 2022 was 51,200,161 .
TUTOR PERINI CORPORATION AND SUBSIDIARIES
TABLE OF CONTENTS
| Page Numbers | |||||||||||
2
PART I. – FINANCIAL INFORMATION
Item 1. Financial Statements
TUTOR PERINI CORPORATION AND SUBSIDIARIES
CONDENSED CONSOLIDATED STATEMENTS OF OPERATIONS
UNAUDITED
| Three Months Ended March 31, | |||||||||||||||||||||||
| (in thousands, except per common share amounts) | 2022 | 2021 | |||||||||||||||||||||
| REVENUE | $ | $ | |||||||||||||||||||||
| COST OF OPERATIONS | ( | ( | |||||||||||||||||||||
| GROSS PROFIT | |||||||||||||||||||||||
| General and administrative expenses | ( | ( | |||||||||||||||||||||
| INCOME (LOSS) FROM CONSTRUCTION OPERATIONS | ( | ||||||||||||||||||||||
| Other income, net | |||||||||||||||||||||||
| Interest expense | ( | ( | |||||||||||||||||||||
| INCOME (LOSS) BEFORE INCOME TAXES | ( | ||||||||||||||||||||||
| Income tax (expense) benefit | ( | ||||||||||||||||||||||
| NET INCOME (LOSS) | ( | ||||||||||||||||||||||
| LESS: NET INCOME ATTRIBUTABLE TO NONCONTROLLING INTERESTS | |||||||||||||||||||||||
| NET INCOME (LOSS) ATTRIBUTABLE TO TUTOR PERINI CORPORATION | $ | ( | $ | ||||||||||||||||||||
| BASIC EARNINGS (LOSS) PER COMMON SHARE | $ | ( | $ | ||||||||||||||||||||
| DILUTED EARNINGS (LOSS) PER COMMON SHARE | $ | ( | $ | ||||||||||||||||||||
| WEIGHTED-AVERAGE COMMON SHARES OUTSTANDING: | |||||||||||||||||||||||
| BASIC | |||||||||||||||||||||||
| DILUTED | |||||||||||||||||||||||
The accompanying notes are an integral part of these Condensed Consolidated Financial Statements.
3
TUTOR PERINI CORPORATION AND SUBSIDIARIES
CONDENSED CONSOLIDATED STATEMENTS OF COMPREHENSIVE INCOME (LOSS)
UNAUDITED
| Three Months Ended March 31, | |||||||||||||||||||||||
| (in thousands) | 2022 | 2021 | |||||||||||||||||||||
| NET INCOME (LOSS) | $ | ( | $ | ||||||||||||||||||||
| OTHER COMPREHENSIVE LOSS, NET OF TAX: | |||||||||||||||||||||||
| Defined benefit pension plan adjustments | |||||||||||||||||||||||
| Foreign currency translation adjustments | |||||||||||||||||||||||
| Unrealized loss in fair value of investments | ( | ( | |||||||||||||||||||||
| TOTAL OTHER COMPREHENSIVE LOSS, NET OF TAX | ( | ( | |||||||||||||||||||||
| COMPREHENSIVE INCOME (LOSS) | ( | ||||||||||||||||||||||
| LESS: COMPREHENSIVE INCOME ATTRIBUTABLE TO NONCONTROLLING INTERESTS | |||||||||||||||||||||||
| COMPREHENSIVE INCOME (LOSS) ATTRIBUTABLE TO TUTOR PERINI CORPORATION | $ | ( | $ | ||||||||||||||||||||
The accompanying notes are an integral part of these Condensed Consolidated Financial Statements.
4
TUTOR PERINI CORPORATION AND SUBSIDIARIES
CONDENSED CONSOLIDATED BALANCE SHEETS
UNAUDITED
| (in thousands, except share and per share amounts) | As of March 31, 2022 | As of December 31, 2021 | |||||||||
| ASSETS | |||||||||||
| CURRENT ASSETS: | |||||||||||
Cash and cash equivalents ($ | $ | $ | |||||||||
| Restricted cash | |||||||||||
| Restricted investments | |||||||||||
Accounts receivable ($ | |||||||||||
Retention receivable ($ | |||||||||||
Costs and estimated earnings in excess of billings ($ | |||||||||||
Other current assets ($ | |||||||||||
| Total current assets | |||||||||||
PROPERTY AND EQUIPMENT (“P&E”), net of accumulated depreciation of $ | |||||||||||
| GOODWILL | |||||||||||
| INTANGIBLE ASSETS, NET | |||||||||||
| OTHER ASSETS | |||||||||||
| TOTAL ASSETS | $ | $ | |||||||||
| LIABILITIES AND EQUITY | |||||||||||
| CURRENT LIABILITIES: | |||||||||||
| Current maturities of long-term debt | $ | $ | |||||||||
Accounts payable ($ | |||||||||||
Retention payable ($ | |||||||||||
Billings in excess of costs and estimated earnings ($ | |||||||||||
Accrued expenses and other current liabilities ($ | |||||||||||
| Total current liabilities | |||||||||||
LONG-TERM DEBT, less current maturities, net of unamortized discount and debt issuance costs totaling $ | |||||||||||
| DEFERRED INCOME TAXES | |||||||||||
| OTHER LONG-TERM LIABILITIES | |||||||||||
| TOTAL LIABILITIES | |||||||||||
| COMMITMENTS AND CONTINGENCIES (NOTE 10) | |||||||||||
| EQUITY | |||||||||||
| Stockholders' equity: | |||||||||||
Preferred stock - authorized | |||||||||||
Common stock - authorized | |||||||||||
| Additional paid-in capital | |||||||||||
| Retained earnings | |||||||||||
| Accumulated other comprehensive loss | ( | ( | |||||||||
| Total stockholders' equity | |||||||||||
| Noncontrolling interests | |||||||||||
| TOTAL EQUITY | |||||||||||
| TOTAL LIABILITIES AND EQUITY | $ | $ | |||||||||
The accompanying notes are an integral part of these Condensed Consolidated Financial Statements.
5
TUTOR PERINI CORPORATION AND SUBSIDIARIES
CONDENSED CONSOLIDATED STATEMENTS OF CASH FLOWS
UNAUDITED
| Three Months Ended March 31, | |||||||||||
| (in thousands) | 2022 | 2021 | |||||||||
| Cash Flows from Operating Activities: | |||||||||||
Net income (loss) | $ | ( | $ | ||||||||
| Adjustments to reconcile net income (loss) to net cash provided by (used in) operating activities: | |||||||||||
| Depreciation | |||||||||||
| Amortization of intangible assets | |||||||||||
| Share-based compensation expense | |||||||||||
| Change in debt discounts and deferred debt issuance costs | |||||||||||
| Deferred income taxes | ( | ||||||||||
| (Gain) loss on sale of property and equipment | ( | ||||||||||
| Changes in other components of working capital | ( | ||||||||||
| Other long-term liabilities | |||||||||||
| Other, net | |||||||||||
| NET CASH PROVIDED BY (USED IN) OPERATING ACTIVITIES | ( | ||||||||||
| Cash Flows from Investing Activities: | |||||||||||
| Acquisition of property and equipment | ( | ( | |||||||||
| Proceeds from sale of property and equipment | |||||||||||
| Investments in securities | ( | ( | |||||||||
| Proceeds from maturities and sales of investments in securities | |||||||||||
| NET CASH USED IN INVESTING ACTIVITIES | ( | ( | |||||||||
| Cash Flows from Financing Activities: | |||||||||||
| Proceeds from debt | |||||||||||
| Repayment of debt | ( | ( | |||||||||
| Cash payments related to share-based compensation | ( | ( | |||||||||
| Distributions paid to noncontrolling interests | ( | ||||||||||
| Contributions from noncontrolling interests | |||||||||||
| NET CASH PROVIDED BY FINANCING ACTIVITIES | |||||||||||
| Net increase (decrease) in cash, cash equivalents and restricted cash | ( | ||||||||||
| Cash, cash equivalents and restricted cash at beginning of period | |||||||||||
| Cash, cash equivalents and restricted cash at end of period | $ | $ | |||||||||
The accompanying notes are an integral part of these Condensed Consolidated Financial Statements.
6
TUTOR PERINI CORPORATION AND SUBSIDIARIES
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
UNAUDITED
(1)Basis of Presentation
The Condensed Consolidated Financial Statements do not include footnotes and certain financial information normally presented annually under generally accepted accounting principles in the United States (“GAAP”). Therefore, they should be read in conjunction with the audited consolidated financial statements and the related notes included in Tutor Perini Corporation’s (the “Company”) Annual Report on Form 10-K for the year ended December 31, 2021. The results of operations for the three months ended March 31, 2022 may not be indicative of the results that will be achieved for the full year ending December 31, 2022.
In the opinion of management, the accompanying unaudited Condensed Consolidated Financial Statements reflect all adjustments, including those of a normal recurring nature, necessary to present fairly the Company’s consolidated financial position as of March 31, 2022 and its consolidated statements of operations and cash flows for the interim periods presented. Intercompany balances and transactions have been eliminated. Certain amounts in the notes to the condensed consolidated financial statements of prior years have been reclassified to conform to the current year presentation.
(2)Revenue
Disaggregation of Revenue
The following tables disaggregate revenue by end market, customer type and contract type, which the Company believes best depict how the nature, amount, timing and uncertainty of its revenue and cash flows are affected by economic factors for the three months ended March 31, 2022 and 2021.
| Three Months Ended March 31, | |||||||||||||||||
| (in thousands) | 2022 | 2021 | |||||||||||||||
| Civil segment revenue by end market: | |||||||||||||||||
| Mass transit (includes certain transportation and tunneling projects) | $ | $ | |||||||||||||||
| Military defense facilities | |||||||||||||||||
| Bridges | |||||||||||||||||
| Water | |||||||||||||||||
| Other | |||||||||||||||||
| Total Civil segment revenue | $ | $ | |||||||||||||||
| Three Months Ended March 31, | |||||||||||||||||
| (in thousands) | 2022 | 2021 | |||||||||||||||
| Building segment revenue by end market: | |||||||||||||||||
| Hospitality and gaming | $ | $ | |||||||||||||||
| Municipal and government | |||||||||||||||||
| Mass transit (includes transportation projects) | |||||||||||||||||
| Commercial and industrial facilities | |||||||||||||||||
| Health care facilities | |||||||||||||||||
| Education facilities | |||||||||||||||||
| Other | |||||||||||||||||
| Total Building segment revenue | $ | $ | |||||||||||||||
7
TUTOR PERINI CORPORATION AND SUBSIDIARIES
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
UNAUDITED
| Three Months Ended March 31, | |||||||||||||||||
| (in thousands) | 2022 | 2021 | |||||||||||||||
| Specialty Contractors segment revenue by end market: | |||||||||||||||||
| Mass transit (includes certain transportation and tunneling projects) | $ | $ | |||||||||||||||
| Commercial and industrial facilities | |||||||||||||||||
| Multi-unit residential | |||||||||||||||||
| Water | |||||||||||||||||
| Education facilities | |||||||||||||||||
| Other | |||||||||||||||||
| Total Specialty Contractors segment revenue | $ | $ | |||||||||||||||
| Three Months Ended March 31, 2022 | Three Months Ended March 31, 2021 | ||||||||||||||||||||||||||||
| (in thousands) | Civil | Building | Specialty Contractors | Total | Civil | Building | Specialty Contractors | Total | |||||||||||||||||||||
| Revenue by customer type: | |||||||||||||||||||||||||||||
| State and local agencies | $ | $ | $ | $ | $ | $ | $ | $ | |||||||||||||||||||||
| Federal agencies | |||||||||||||||||||||||||||||
| Private owners | |||||||||||||||||||||||||||||
| Total revenue | $ | $ | $ | $ | $ | $ | $ | $ | |||||||||||||||||||||
| Three Months Ended March 31, 2022 | Three Months Ended March 31, 2021 | ||||||||||||||||||||||||||||
| (in thousands) | Civil | Building | Specialty Contractors | Total | Civil | Building | Specialty Contractors | Total | |||||||||||||||||||||
| Revenue by contract type: | |||||||||||||||||||||||||||||
| Fixed price | $ | $ | $ | $ | $ | $ | $ | $ | |||||||||||||||||||||
| Guaranteed maximum price | |||||||||||||||||||||||||||||
| Unit price | |||||||||||||||||||||||||||||
| Cost plus fee and other | |||||||||||||||||||||||||||||
| Total revenue | $ | $ | $ | $ | $ | $ | $ | $ | |||||||||||||||||||||
Changes in Contract Estimates that Impact Revenue
Changes to the total estimated contract revenue or cost for a given project, either due to unexpected events or revisions to management’s initial estimates, are recognized in the period in which they are determined. Revenue was negatively impacted during the three months ended March 31, 2022 related to performance obligations satisfied (or partially satisfied) in prior periods by $48.5 million. Likewise, revenue was negatively impacted during the three months ended March 31, 2021 related to performance obligations satisfied (or partially satisfied) in prior periods by $19.3 million.
Remaining Performance Obligations
Remaining performance obligations represent the transaction price of firm orders for which work has not been performed and exclude unexercised contract options. As of March 31, 2022, the aggregate amounts of the transaction prices allocated to the remaining performance obligations of the Company’s construction contracts were $4.6 billion, $2.2 billion and $1.3 billion for the Civil, Building and Specialty Contractors segments, respectively. As of March 31, 2021, the aggregate amounts of the transaction prices allocated to the remaining performance obligations of the Company’s construction contracts were $4.8 billion, $1.5 billion and $1.7 billion for the Civil, Building and Specialty Contractors segments, respectively. The Company typically recognizes revenue on Civil segment projects over a period of to five years , whereas for projects in the Building and Specialty Contractors segments, the Company typically recognizes revenue over a period of to three years .
8
TUTOR PERINI CORPORATION AND SUBSIDIARIES
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
UNAUDITED
(3)Contract Assets and Liabilities
The Company classifies contract assets and liabilities that may be settled beyond one year from the balance sheet date as current, consistent with the length of time of the Company’s project operating cycle.
Contract assets include amounts due under retention provisions, costs and estimated earnings in excess of billings and capitalized contract costs. The amounts as included on the Condensed Consolidated Balance Sheets consisted of the following:
| (in thousands) | As of March 31, 2022 | As of December 31, 2021 | ||||||
| Retention receivable | $ | $ | ||||||
| Costs and estimated earnings in excess of billings: | ||||||||
| Claims | ||||||||
| Unapproved change orders | ||||||||
| Other unbilled costs and profits | ||||||||
| Total costs and estimated earnings in excess of billings | ||||||||
| Capitalized contract costs | ||||||||
| Total contract assets | $ | $ | ||||||
Retention receivable represents amounts invoiced to customers where payments have been partially withheld pending the completion of certain milestones, satisfaction of other contractual conditions or the completion of the project. Retention agreements vary from project to project, and balances could be outstanding for several months or years depending on a number of circumstances such as contract-specific terms, project performance and other variables that may arise as the Company makes progress toward completion. As of March 31, 2022, the amount of retention receivable estimated by management to be collected beyond one year is approximately 43 % of the balance.
Costs and estimated earnings in excess of billings represent the excess of contract costs and profits (or contract revenue) over the amount of contract billings to date and are classified as a current asset. Costs and estimated earnings in excess of billings result when either: (1) the appropriate contract revenue amount has been recognized over time in accordance with Accounting Standards Codification (“ASC”) 606, Revenue from Contracts with Customers (“ASC 606”), but a portion of the revenue recorded cannot be billed currently due to the billing terms defined in the contract, or (2) costs are incurred related to certain claims and unapproved change orders. Claims occur when there is a dispute regarding both a change in the scope of work and the price associated with that change. Unapproved change orders occur when a change in the scope of work results in additional work being performed before the parties have agreed on the corresponding change in the contract price. The Company routinely estimates recovery related to claims and unapproved change orders as a form of variable consideration at the most likely amount it expects to receive and to the extent it is probable that a significant reversal of cumulative revenue recognized will not occur when the uncertainty associated with the variable consideration is resolved. Claims and unapproved change orders are billable upon the agreement and resolution between the contractual parties and after the execution of contractual amendments. Increases in claims and unapproved change orders typically result from costs being incurred against existing or new positions; decreases normally result from resolutions and subsequent billings. As discussed in Note 10, the resolution of these claims and unapproved change orders may require litigation or other forms of dispute resolution proceedings. Other unbilled costs and profits are billable in accordance with the billing terms of each of the existing contractual arrangements and, as such, the timing of contract billing cycles can cause fluctuations in the balance of unbilled costs and profits. Ultimate resolution of other unbilled costs and profits typically involves incremental progress toward contractual requirements or milestones.
Capitalized contract costs are included in other current assets and primarily represent costs to fulfill a contract that (1) directly relate to an existing or anticipated contract, (2) generate or enhance resources that will be used in satisfying performance obligations in the future and (3) are expected to be recovered through the contract. Capitalized contract costs are generally expensed to the associated contract over the period of anticipated use on the project. During the three months ended March 31, 2022 and 2021, $12.6 million and $11.8 million, respectively, of previously capitalized contract costs were amortized and recognized as expense on the related contracts.
9
TUTOR PERINI CORPORATION AND SUBSIDIARIES
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
UNAUDITED
Contract liabilities include amounts owed under retention provisions and billings in excess of costs and estimated earnings. The amount as reported on the Condensed Consolidated Balance Sheets consisted of the following:
| (in thousands) | As of March 31, 2022 | As of December 31, 2021 | ||||||
| Retention payable | $ | $ | ||||||
| Billings in excess of costs and estimated earnings | ||||||||
| Total contract liabilities | $ | $ | ||||||
Retention payable represents amounts invoiced to the Company by subcontractors where payments have been partially withheld pending the completion of certain milestones, other contractual conditions or upon the completion of the project. Generally, retention payable is not remitted to subcontractors until the associated retention receivable from customers is collected. As of March 31, 2022, the amount of retention payable estimated by management to be remitted beyond one year is approximately 37 % of the balance.
Billings in excess of costs and estimated earnings represent the excess of contract billings to date over the amount of contract costs and profits (or contract revenue) recognized to date. The balance may fluctuate depending on the timing of contract billings and the recognition of contract revenue. Revenue recognized during the three months ended March 31, 2022 and 2021 and included in the opening billings in excess of costs and estimated earnings balances for each period totaled $317.8 million and $306.9 million, respectively.
(4)Cash, Cash Equivalents and Restricted Cash
The following table provides a reconciliation of cash, cash equivalents and restricted cash reported within the Condensed Consolidated Balance Sheets to the amounts shown in the Condensed Consolidated Statements of Cash Flows:
| (in thousands) | As of March 31, 2022 | As of December 31, 2021 | ||||||
| Cash and cash equivalents available for general corporate purposes | $ | $ | ||||||
| Joint venture cash and cash equivalents | ||||||||
| Cash and cash equivalents | ||||||||
| Restricted cash | ||||||||
| Total cash, cash equivalents and restricted cash | $ | $ | ||||||
Cash equivalents include short-term, highly liquid investments with maturities of three months or less when acquired. Cash and cash equivalents consist of amounts available for the Company’s general purposes, the Company’s proportionate share of cash held by the Company’s unconsolidated joint ventures and 100% of amounts held by the Company’s consolidated joint ventures. In both cases, cash held by joint ventures is available only for joint venture-related uses, including future distributions to joint venture partners.
Restricted cash includes amounts held as collateral to secure insurance-related contingent obligations, such as insurance claim deductibles, in lieu of letters of credit.
(5)Earnings Per Common Share
10
TUTOR PERINI CORPORATION AND SUBSIDIARIES
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
UNAUDITED
| Three Months Ended March 31, | |||||||||||||||||
| (in thousands, except per common share data) | 2022 | 2021 | |||||||||||||||
| Net income (loss) attributable to Tutor Perini Corporation | $ | ( | $ | ||||||||||||||
| Weighted-average common shares outstanding, basic | |||||||||||||||||
| Effect of dilutive restricted stock units and stock options | |||||||||||||||||
| Weighted-average common shares outstanding, diluted | |||||||||||||||||
| Net income (loss) attributable to Tutor Perini Corporation per common share: | |||||||||||||||||
| Basic | $ | ( | $ | ||||||||||||||
| Diluted | $ | ( | $ | ||||||||||||||
| Anti-dilutive securities not included above | |||||||||||||||||
For the three months ended March 31, 2022, all outstanding restricted stock units and stock options were excluded from the calculation of weighted-average diluted shares outstanding, as the shares have an anti-dilutive effect due to the net loss for the period.
(6)Income Taxes
The Company’s effective income tax rate was 17.1 % for the three months ended March 31, 2022. The effective income tax rate for the period was lower than the 21% federal statutory rate primarily due to earnings attributable to noncontrolling interests, for which income taxes are not the responsibility of the Company, partially offset by state income taxes (net of the federal tax benefit).
The Company’s effective income tax rate for the three months ended March 31, 2021 was 21.7 %. The effective income tax rate for the 2021 period was higher than the 21% federal statutory rate primarily due to state income taxes (net of the federal tax benefit) and nondeductible expenses, partially offset by earnings attributable to noncontrolling interests, for which income taxes are not the responsibility of the Company.
(7)Goodwill and Intangible Assets
Goodwill
The following table presents the changes in the carrying amount of goodwill since its inception through March 31, 2022:
| (in thousands) | Civil | Building | Specialty Contractors | Total | ||||||||||
| Gross goodwill as of December 31, 2021 | $ | $ | $ | $ | ||||||||||
| Accumulated impairment as of December 31, 2021 | ( | ( | ( | ( | ||||||||||
| Goodwill as of December 31, 2021 | ||||||||||||||
| Current year activity | ||||||||||||||
| Goodwill as of March 31, 2022 | $ | $ | $ | $ | ||||||||||
The Company performed its annual impairment test in the fourth quarter of 2021 and concluded goodwill was no t impaired. In addition, the Company determined that no triggering events occurred and no circumstances changed since the date of our annual impairment test that would more likely than not reduce the fair value of the Civil reporting unit below its carrying amount.
The Company will continue to monitor events and circumstances for changes that indicate the Civil reporting unit goodwill would need to be reevaluated for impairment during future interim periods prior to the annual impairment test. These future
11
TUTOR PERINI CORPORATION AND SUBSIDIARIES
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
UNAUDITED
events and circumstances include, but are not limited to, changes in the overall financial performance of the Civil reporting unit, impacts to our business as a result of the COVID-19 pandemic, as well as other quantitative and qualitative factors which could indicate potential triggering events for possible impairment.
Intangible Assets
Intangible assets consist of the following:
| As of March 31, 2022 | Weighted-Average Amortization Period | |||||||||||||||||||
| (in thousands) | Cost | Accumulated Amortization | Accumulated Impairment Charge | Carrying Value | ||||||||||||||||
| Trade names (non-amortizable) | $ | $ | — | $ | ( | $ | Indefinite | |||||||||||||
| Trade names (amortizable) | ( | ( | ||||||||||||||||||
| Contractor license | — | ( | — | N/A | ||||||||||||||||
| Customer relationships | ( | ( | ||||||||||||||||||
| Construction contract backlog | ( | — | ||||||||||||||||||
| Total | $ | $ | ( | $ | ( | $ | ||||||||||||||
| As of December 31, 2021 | Weighted-Average Amortization Period | |||||||||||||||||||
| (in thousands) | Cost | Accumulated Amortization | Accumulated Impairment Charge | Carrying Value | ||||||||||||||||
| Trade names (non-amortizable) | $ | $ | — | $ | ( | $ | Indefinite | |||||||||||||
| Trade names (amortizable) | ( | ( | ||||||||||||||||||
| Contractor license | — | ( | — | N/A | ||||||||||||||||
| Customer relationships | ( | ( | ||||||||||||||||||
| Construction contract backlog | ( | — | ||||||||||||||||||
| Total | $ | $ | ( | $ | ( | $ | ||||||||||||||
Amortization expense for the three months ended March 31, 2022 and 2021 was $5.5 million and $6.6 million, respectively. As of March 31, 2022, future amortization expense is estimated to be $9.0 million for the remainder of 2022, $2.2 9.2 million thereafter.
12
TUTOR PERINI CORPORATION AND SUBSIDIARIES
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
UNAUDITED
(8)Financial Commitments
Long-Term Debt
Long-term debt as reported on the Condensed Consolidated Balance Sheets consisted of the following:
| (in thousands) | As of March 31, 2022 | As of December 31, 2021 | ||||||
| 2017 Senior Notes | $ | $ | ||||||
| Term Loan B | ||||||||
| 2020 Revolver | ||||||||
| Equipment financing and mortgages | ||||||||
| Other indebtedness | ||||||||
| Total debt | ||||||||
| Less: Current maturities | ||||||||
| Long-term debt, net | $ | $ | ||||||
The following table reconciles the outstanding debt balances to the reported debt balances as of March 31, 2022 and December 31, 2021:
| As of March 31, 2022 | As of December 31, 2021 | ||||||||||||||||||||||
| (in thousands) | Outstanding Debt | Unamortized Discounts and Issuance Costs | Debt, as reported | Outstanding Debt | Unamortized Discounts and Issuance Costs | Debt, as reported | |||||||||||||||||
| 2017 Senior Notes | $ | $ | ( | $ | $ | $ | ( | $ | |||||||||||||||
| Term Loan B | ( | ( | |||||||||||||||||||||
The unamortized issuance costs related to the 2020 Revolver were $1.9 million and $2.1 million as of March 31, 2022 and December 31, 2021, respectively, and are included in other assets on the Condensed Consolidated Balance Sheets.
2020 Credit Agreement
On August 18, 2020, the Company entered into a credit agreement (the “2020 Credit Agreement”) with BMO Harris Bank N.A., as Administrative Agent, Swing Line Lender and L/C Issuer and other lenders. The 2020 Credit Agreement provides for a $425.0 million term loan B facility (the “Term Loan B”) and a $175.0 million revolving credit facility (the “2020 Revolver”), with sublimits for the issuance of letters of credit and swing line loans up to the aggregate amounts of $75.0 million and $10.0 million, respectively. The Term Loan B will mature on August 18, 2027 and the 2020 Revolver will mature on August 18, 2025, in each case, unless any of the 2017 Senior Notes are outstanding on January 30, 2025 (which is 91 days prior to the maturity of the 2017 Senior Notes), in which case, both the Term Loan B and the 2020 Revolver will mature on January 30, 2025 (subject to certain further exceptions).
The 2020 Credit Agreement permits the Company to repay any or all borrowings outstanding under the 2020 Credit Agreement at any time prior to maturity without penalty. The 2020 Credit Agreement requires the Company to make regularly scheduled payments of principal on the Term Loan B in quarterly installments equal to 0.25 % of the initial principal amount of the Term Loan B. The 2020 Credit Agreement also requires the Company to make prepayments on the Term Loan B in connection with certain asset sales, receipts of insurance proceeds, incurrences of unpermitted indebtedness and annual excess cash flow (subject to certain exceptions).
Subject to certain exceptions, at any time prior to maturity, the 2020 Credit Agreement provides the Company with the right to increase the commitments under the 2020 Revolver and/or to establish one or more term loan facilities in an aggregate amount up to (i) the greater of $173.5 million and 50 % LTM EBITDA (as defined in the 2020 Credit Agreement) plus (ii) additional amounts if (A) in the case of pari passu first lien secured indebtedness, the First Lien Net Leverage Ratio (as defined in the 2020 Credit Agreement) does not exceed 1.35 :1.00, (B) in the case of junior lien secured indebtedness, the Total Net Leverage Ratio (as defined in the 2020 Credit Agreement) does not exceed 3.50 :1.00 and (C) in the case of unsecured indebtedness,
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NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
UNAUDITED
(x) the Total Net Leverage Ratio does not exceed 3.50 :1.00 or (y) the Fixed Charge Coverage Ratio (as defined in the 2020 Credit Agreement) is no less than 2.00 :1.00.
Borrowings under the 2020 Credit Agreement bear interest, at the Company’s option, at a rate equal to (i) (a) LIBOR or (b) a base rate (determined by reference to the highest of (1) the administrative agent’s prime lending rate, (2) the federal funds effective rate plus 50 basis points and (3) the LIBOR rate for a one-month interest period plus 100 basis points) plus, (ii) an applicable margin. The margin applicable to the Term Loan B is between 4.50 % and 4.75 % for LIBOR and between 3.50 % and 3.75 % for base rate (which was initially 4.75 % for LIBOR and 3.75 % for base rate), and, in each case, is based on the Total Net Leverage Ratio. The margin applicable to the 2020 Revolver is between 4.25 % and 4.75 % for LIBOR and 3.25 % and 3.75 % for base rate (which was initially 4.75 % for LIBOR and 3.75 % for base rate), and, in each case, is based on the First Lien Net Leverage Ratio. In addition to paying interest on outstanding principal under the 2020 Credit Agreement, the Company will pay a commitment fee to the lenders under the 2020 Revolver in respect of the unutilized commitments thereunder. The Company will pay customary letter of credit fees. If a payment or bankruptcy event of default occurs and is continuing, the otherwise applicable margin on overdue amounts will be increased by 2 % per annum. The agreement includes provisions for the replacement of LIBOR with an alternative benchmark rate upon LIBOR being discontinued. The weighted-average annual interest rate on borrowings under the 2020 Revolver was 6.55 % during the three months ended March 31, 2022.
The 2020 Credit Agreement requires, with respect to the 2020 Revolver only, the Company and its restricted subsidiaries to maintain a maximum First Lien Net Leverage Ratio of 2.75 :1:00, stepping down to 2.25 :1.00 beginning the quarter ending March 31, 2022. The 2020 Credit Agreement also includes certain customary representations and warranties, affirmative covenants and events of default. Subject to certain exceptions, substantially all of the Company’s existing and future material wholly-owned subsidiaries unconditionally guarantee the obligations of the Company under the 2020 Credit Agreement; additionally, subject to certain exceptions, the obligations are secured by a lien on substantially all of the assets of the Company and its subsidiaries guaranteeing these obligations.
As of March 31, 2022, $41 million was outstanding and $134 million was available under the 2020 Revolver. The Company had not utilized the 2020 Revolver for letters of credit. The Company was in compliance with the financial covenants under the 2020 Credit Agreement for the period ended March 31, 2022.
Repurchase and Repayment of Convertible Notes
On June 15, 2021, the Company repaid the $69.9 million outstanding principal balance of the 2.875 % Convertible Senior Notes (the “Convertible Notes”).
2017 Senior Notes
On April 20, 2017, the Company issued $500 million in aggregate principal amount of 6.875 % Senior Notes due May 1, 2025 (the “2017 Senior Notes”) in a private placement offering. Interest on the 2017 Senior Notes is payable in arrears semi-annually in May and November of each year, beginning in November 2017.
The Company may redeem the 2017 Senior Notes at specified redemption prices described in the indenture. Upon a change of control, holders of the 2017 Senior Notes may require the Company to repurchase all or part of the 2017 Senior Notes at 101 % of the principal amount thereof, plus accrued and unpaid interest to the redemption date.
The 2017 Senior Notes are senior unsecured obligations of the Company and are guaranteed by substantially all of the Company’s existing and future subsidiaries that also guarantee obligations under the Company’s 2020 Credit Agreement, as defined above. In addition, the indenture for the 2017 Senior Notes provides for customary covenants, including events of default and restrictions on the payment of dividends and share repurchases.
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TUTOR PERINI CORPORATION AND SUBSIDIARIES
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
UNAUDITED
Interest Expense
Interest expense as reported in the Condensed Consolidated Statements of Operations consisted of the following:
| Three Months Ended March 31, | |||||||||||||||||
| (in thousands) | 2022 | 2021 | |||||||||||||||
| Cash interest expense: | |||||||||||||||||
| Interest on 2017 Senior Notes | $ | $ | |||||||||||||||
| Interest on Term Loan B | |||||||||||||||||
| Interest on 2020 Revolver | |||||||||||||||||
| Interest on Convertible Notes | — | ||||||||||||||||
| Other interest | |||||||||||||||||
| Total cash interest expense | |||||||||||||||||
Non-cash interest expense:(a) | |||||||||||||||||
| Amortization of discount and debt issuance costs on Convertible Notes | — | ||||||||||||||||
| Amortization of discount and debt issuance costs on Term Loan B | |||||||||||||||||
| Amortization of debt issuance costs on 2020 Revolver | |||||||||||||||||
| Amortization of debt issuance costs on 2017 Senior Notes | |||||||||||||||||
| Total non-cash interest expense | |||||||||||||||||
| Total interest expense | $ | $ | |||||||||||||||
____________________________________________________________________________________________________
(a)The combination of cash and non-cash interest expense produces effective interest rates that are higher than contractual rates. Accordingly, the effective interest rates for the 2017 Senior Notes and Term Loan B were 7.13 % and 6.43 %, respectively, for the three months ended March 31, 2022.
(9)Leases
The Company leases certain office space, construction and office equipment, vehicles and temporary housing generally under non-cancelable operating leases. Leases with an initial term of one year or less are not recorded on the balance sheet, and the Company generally recognizes lease expense for these leases on a straight-line basis over the lease term. As of March 31, 2022, the Company’s operating leases have remaining lease terms ranging from less than one year to 16 years, some of which include options to renew the leases. The exercise of lease renewal options is generally at the Company’s sole discretion. The Company’s leases do not contain any material residual value guarantees or material restrictive covenants.
The following table presents components of lease expense for the three months ended March 31, 2022 and 2021:
| Three Months Ended March 31, | |||||||||||||||||
| (in thousands) | 2022 | 2021 | |||||||||||||||
| Operating lease expense | $ | $ | |||||||||||||||
Short-term lease expense(a) | |||||||||||||||||
| Less: Sublease income | |||||||||||||||||
| Total lease expense | $ | $ | |||||||||||||||
____________________________________________________________________________________________________
(a)Short-term lease expense includes all leases with lease terms ranging from less than one month to one year . Short-term leases include, among other things, construction equipment rented on an as-needed basis as well as temporary housing.
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TUTOR PERINI CORPORATION AND SUBSIDIARIES
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
UNAUDITED
The following table presents supplemental balance sheet information related to operating leases:
| (dollars in thousands) | Balance Sheet Line Item | As of March 31, 2022 | As of December 31, 2021 | ||||||||
| Assets | |||||||||||
| Right-of-use assets | $ | $ | |||||||||
| Total lease assets | $ | $ | |||||||||
| Liabilities | |||||||||||
| Current lease liabilities | $ | $ | |||||||||
| Long-term lease liabilities | |||||||||||
| Total lease liabilities | $ | $ | |||||||||
| Weighted-average remaining lease term | |||||||||||
| Weighted-average discount rate | % | % | |||||||||
The following table presents supplemental cash flow information and non-cash activity related to operating leases:
| Three Months Ended March 31, | ||||||||
| (in thousands) | 2022 | 2021 | ||||||
| Operating cash flow information: | ||||||||
| Cash paid for amounts included in the measurement of lease liabilities | $ | ( | $ | ( | ||||
| Non-cash activity: | ||||||||
| Right-of-use assets obtained in exchange for lease liabilities | $ | $ | ||||||
The following table presents maturities of operating lease liabilities on an undiscounted basis as of March 31, 2022:
Year (in thousands) | Operating Leases | ||||
2022 (excluding the three months ended March 31, 2022) | $ | ||||
| 2023 | |||||
| 2024 | |||||
| 2025 | |||||
| 2026 | |||||
| Thereafter | |||||
| Total lease payments | |||||
| Less: Imputed interest | |||||
| Total | $ | ||||
(10)Commitments and Contingencies
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TUTOR PERINI CORPORATION AND SUBSIDIARIES
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
UNAUDITED
Consequently, these assessments are estimates, and actual amounts may vary from such estimates. In addition, because such matters are typically resolved over long periods of time, the Company’s assets and liabilities may change over time should the circumstances dictate. The description of the legal proceedings listed below include management’s assessment of those proceedings. Management believes that, based on current information and discussions with the Company’s legal counsel, the ultimate resolution of other matters is not expected to have a material effect on the Company’s consolidated financial position, results of operations or cash flows.
A description of the material pending legal proceedings, other than ordinary routine litigation incidental to the business is as follows:
Five Star Electric Matter
In the third quarter of 2015, Five Star Electric Corp. (“Five Star”), a wholly owned subsidiary of the Company that was acquired in 2011, entered into a tolling agreement (which has since expired) related to an ongoing investigation being conducted by the United States Attorney’s Office for the Eastern District of New York (“USAO EDNY”). Five Star has been cooperating with the USAO EDNY since late June 2014, when it was first made aware of the investigation, and has provided information requested by the government related to its use of certain minority-owned, women-owned, small and disadvantaged business enterprises and certain of Five Star’s employee compensation, benefit and tax practices.
As of March 31, 2022, the Company has concluded that the potential for a material adverse financial impact on Five Star or the Company as a result of the investigation is remote.
Alaskan Way Viaduct Matter
In January 2011, Seattle Tunnel Partners (“STP”), a joint venture between Dragados USA, Inc. and the Company, entered into a design-build contract with the Washington State Department of Transportation (“WSDOT”) for the construction of a large-diameter bored tunnel in downtown Seattle, King County, Washington to replace the Alaskan Way Viaduct, also known as State Route 99. The Company has a 45 % interest in STP.
The construction of the large-diameter bored tunnel required the use of a tunnel boring machine (“TBM”). In December 2013, the TBM struck a steel pipe, installed by WSDOT as a well casing for an exploratory well. The TBM was significantly damaged and was required to be repaired. STP has asserted that the steel pipe casing was a differing site condition that WSDOT failed to properly disclose. The Disputes Review Board mandated by the contract to hear disputes issued a decision finding the steel casing was a Type I (material) differing site condition. WSDOT did not accept that finding.
The TBM was insured under a Builder’s Risk Insurance Policy (the “Policy”) with Great Lakes Reinsurance (UK) PLC and a consortium of other insurers (the “Insurers”). STP submitted the claims to the Insurers and requested interim payments under the Policy. The Insurers refused to pay and denied coverage. In June 2015, STP filed a lawsuit in the King County Superior Court, State of Washington seeking declaratory relief concerning contract interpretation, as well as damages as a result of the Insurers’ breach of their obligations under the terms of the Policy. STP is also asserting extra-contractual and statutory claims against the Insurers. STP submitted damages to the Insurers in the King County lawsuit in the amount of $532 million. WSDOT is deemed a plaintiff since WSDOT is an insured under the Policy and had filed its own claim for damages. Hitachi Zosen (“Hitachi”), the manufacturer of the TBM, joined the case as a plaintiff for costs incurred to repair the damages to the TBM.
In April and September 2018, rulings received on pre-trial motions limited some of the potential recoveries under the Policy for STP, WSDOT and Hitachi. On August 2, 2021, the Court of Appeals reversed in part certain of those limitations but affirmed other parts of those rulings. On January 5, 2022, the Washington Supreme Court issued an order granting STP, WSDOT and Hitachi’s requests for discretionary review of the portions of the Court of Appeals’ decision that affirmed the April and September 2018 decisions. STP also asserted $532 million of damages from WSDOT related to the pipe-strike by the TBM in a related lawsuit in Thurston County (see following paragraph).
In March 2016, WSDOT filed a complaint against STP in Thurston County Superior Court alleging breach of contract, seeking $57.2 million in delay-related damages and seeking declaratory relief concerning contract interpretation. STP filed its answer to WSDOT’s complaint and filed a counterclaim against WSDOT and Hitachi, as the TBM designer, seeking damages of $667 million. On October 3, 2019, STP and Hitachi entered into a settlement agreement which released and dismissed the claims that STP and Hitachi had against each other. The jury trial between STP and WSDOT commenced on October 7, 2019 and concluded on December 13, 2019, with a jury verdict in favor of WSDOT awarding them $57.2 million in damages.
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TUTOR PERINI CORPORATION AND SUBSIDIARIES
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
UNAUDITED
Judgment was entered on January 10, 2020, and STP appealed the decision. The appeal was argued on December 10, 2021 and STP is awaiting a decision from the Court of Appeals of the State of Washington, which is expected in the second half of 2022. If STP is successful in its appeal, the case will be remanded to the trial court for a new trial.
The Company recorded the impact of the jury verdict during the fourth quarter of 2019, resulting in a pre-tax charge of $166.8 million, which included $25.7 million for the Company’s 45 % proportionate share of the $57.2 million in damages awarded by the jury to WSDOT. Payment of damages will only be made if the adverse verdict is upheld on appeal, as the payment is secured by a bond for the course of the appeal. Other than the possible future cash payment of $25.7 million for damages, the charge was for non-cash write-downs primarily related to the costs and estimated earnings in excess of billings and receivables that the Company previously recorded to reflect its expected recovery in this case.
With respect to STP’s direct and indirect claims against the Insurers, management has included in receivables an estimate of the total anticipated recovery concluded to be probable.
George Washington Bridge Bus Station Matter
In August 2013, Tutor Perini Building Corp. (“TPBC”) entered into a contract with the George Washington Bridge Bus Station Development Venture, LLC (the “Developer”) to renovate the George Washington Bridge Bus Station, a mixed-use facility owned by the Port Authority of New York and New Jersey (the “Port Authority”) that serves as a transit facility and retail space. The $100 million project experienced significant design errors and associated delays, resulting in damages to TPBC and its subcontractors, including WDF and Five Star, wholly owned subsidiaries of the Company. The project reached substantial completion on May 16, 2017.
On February 26, 2015, the Developer filed a demand for arbitration, subsequently amended, seeking $30 million in alleged damages and declaratory relief that TPBC’s requests for additional compensation are invalid due to lack of notice. TPBC denied the Developer’s claims and filed a counterclaim in March 2018. TPBC seeks in excess of $113 million in the arbitration, which includes unpaid contract balance claims, the return of $29 million retained by the Developer in alleged damages, as well as extra work claims, pass-through claims and delay claims.
Hearings on the merits commenced on September 24, 2018 before the arbitration panel. On June 4, 2019, the arbitration panel, as confirmed by the U.S. District Court in the Southern District of New York, issued a writ of attachment for $23 million of the $29 million discussed above. On October 7, 2019, the Developer filed for bankruptcy protection in the Southern District of New York under Chapter 11 of the Bankruptcy Code. The filing for bankruptcy stayed the pending arbitration proceedings. TPBC appeared in the bankruptcy proceedings on October 8, 2019 and filed a Proof of Claim in the amount of $113 million on December 13, 2019.
On June 5, 2020, the Developer, secured lenders and the Port Authority announced that they had reached a settlement of their disputes. As part of the settlement, the Port Authority waived the enforcement of its right to seek a “cure” pursuant to its lease agreement with the Developer which requires construction costs be paid prior to any sale of the leasehold, the sole asset in the Developer’s bankruptcy estate to be distributed in this bankruptcy. On July 14, 2020, the bankruptcy court conducted a hearing to determine (1) whether to approve the settlement agreement between the Developer, secured lenders and the Port Authority; and (2) whether TPBC can assert third-party beneficiary rights to the lease agreement and require that prior to the sale of the leasehold, any outstanding costs owed to contractors for the cost of building the project must be paid pursuant to the lease agreement’s “cure” provisions. On August 12, 2020, the bankruptcy court approved the settlement and denied TPBC’s third-party beneficiary rights under the lease agreement. On August 20, 2020, TPBC filed an appeal with the U.S. District Court for the Southern District of New York seeking to challenge the denial of its third-party beneficiary rights under the lease agreement’s “cure” provisions to avoid being subordinate to the claims of the secured lenders in the bankruptcy proceedings, which was denied by the U.S. District Court on August 4, 2021 and is now before the Second Circuit Court of Appeals. On August 25, 2021, the bankruptcy court approved the sale of the leasehold, which was completed on August 31, 2021. On October 1, 2021, the bankruptcy court converted the case from a Chapter 11 to a Chapter 7 bankruptcy proceeding.
Separately, on July 2, 2018, TPBC filed a lawsuit against the Port Authority, as owner of the project, seeking the same $113 million in damages pursuant to the lease agreement between the Port Authority and the Developer. On August 20, 2018, the Port Authority filed a motion to dismiss all causes of action, which was denied by the court on July 1, 2019. The Port Authority appealed this decision on July 15, 2019. On February 18, 2021, the Appellate Division affirmed in part and reversed in part the trial court's denial of the Port Authority's motion to dismiss TPBC’s causes of action. On April 11, 2022, the court granted the Port Authority’s motion to dismiss on statutory notice grounds. The Company intends to appeal this decision. In
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TUTOR PERINI CORPORATION AND SUBSIDIARIES
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
UNAUDITED
addition, on August 11, 2021, TPBC filed a second lawsuit in state court against the Port Authority alleging unjust enrichment and tortious interference with TPBC’s right to recover under the lease agreement’s “cure” provision in the bankruptcy proceeding. The case was removed to the federal bankruptcy court on September 21, 2021. The Port Authority filed a motion to dismiss on March 4, 2022, which remains pending before the bankruptcy court.
On January 27, 2020, TPBC filed separate litigation in the U.S. District Court for the Southern District of New York in which TPBC asserted related claims against individual owners of the Developer for their wrongful conversion of project funds and against lenders that received interest payments from project funds and other amounts earmarked to pay the contractors. On December 29, 2020, the court granted in part and denied in part the defendants’ motions to dismiss, resulting in the lender defendants being dismissed from the lawsuit and the lawsuit against the individual owners of the Developer continuing. The lawsuit was refiled in New York state court on July 26, 2021 and remains pending before the court.
As of March 31, 2022, the Company has concluded that the potential for a material adverse financial impact due to the Developer’s claims is remote. With respect to TPBC’s claims against the Developer, its owners, certain lenders and the Port Authority, management has made an estimate of the total anticipated recovery on this project, and such estimate is included in revenue recorded to date.
(11)Share-Based Compensation
As of March 31, 2022, there were 927,846 shares of common stock available for grant under the Tutor Perini Corporation Omnibus Incentive Plan. During the three months ended March 31, 2022 and 2021, the Company granted restricted stock units (“RSUs”) totaling 375,769 and 180,000 , respectively, with weighted-average grant date fair values per share of $10.53 and $19.30 , respectively. During the three months ended March 31, 2022, the Company also granted 315,768 cash-settled performance stock units (“CPSUs”) with a weighted-average grant date fair value per unit of $14.89 , and 7,500 shares of unrestricted stock with a weighted-average grant date fair value of $19.24 per share.
For CPSUs and certain RSUs granted with guaranteed minimum payouts, the Company recognized liabilities totaling approximately $4.2 million and $4.8 million as of March 31, 2022 and December 31, 2021, respectively. The Company paid approximately $2.6 million and $0.3 million to settle certain awards upon vesting during the three month periods ended March 31, 2022 and 2021, respectively.
For the three months ended March 31, 2022 and 2021, the Company recognized, as part of general and administrative expenses, costs for share-based payment arrangements totaling $3.4 million and $2.4 million, respectively. As of March 31, 2022, the balance of unamortized share-based compensation expense was $27.1 million, which is expected to be recognized over a weighted-average period of 2.2 years.
(12)Employee Pension Plans
The Company has a defined benefit pension plan and an unfunded supplemental retirement plan. Effective June 1, 2004, all benefit accruals under these plans were frozen; however, the current vested benefit was preserved. The pension disclosure presented below includes aggregated amounts for both of the Company’s plans.
The following table sets forth a summary of the net periodic benefit cost for the three months ended March 31, 2022 and 2021:
| Three Months Ended March 31, | |||||||||||||||||
| (in thousands) | 2022 | 2021 | |||||||||||||||
| Interest cost | $ | $ | |||||||||||||||
| Service cost | |||||||||||||||||
| Expected return on plan assets | ( | ( | |||||||||||||||
| Recognized net actuarial losses | |||||||||||||||||
| Net periodic benefit cost | $ | $ | |||||||||||||||
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TUTOR PERINI CORPORATION AND SUBSIDIARIES
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
UNAUDITED
(13)Fair Value Measurements
The fair value hierarchy established by ASC 820, Fair Value Measurement, prioritizes the use of inputs used in valuation techniques into the following three levels:
•Level 1 inputs are observable quoted prices in active markets for identical assets or liabilities
•Level 2 inputs are observable, either directly or indirectly, but are not Level 1 inputs
•Level 3 inputs are unobservable
The following fair value hierarchy table presents the Company’s assets that are measured at fair value on a recurring basis as of March 31, 2022 and December 31, 2021:
| As of March 31, 2022 | As of December 31, 2021 | ||||||||||||||||||||||||||||||||||
| Fair Value Hierarchy | Fair Value Hierarchy | ||||||||||||||||||||||||||||||||||
| (in thousands) | Level 1 | Level 2 | Level 3 | Total | Level 1 | Level 2 | Level 3 | Total | |||||||||||||||||||||||||||
Cash and cash equivalents(a) | $ | $ | $ | $ | $ | $ | $ | $ | |||||||||||||||||||||||||||
Restricted cash(a) | |||||||||||||||||||||||||||||||||||
Restricted investments(b) | |||||||||||||||||||||||||||||||||||
Investments in lieu of retention(c) | |||||||||||||||||||||||||||||||||||
| Total | $ | $ | $ | $ | $ | $ | $ | $ | |||||||||||||||||||||||||||
____________________________________________________________________________________________________
(a)Includes money market funds and short-term investments with maturity dates of three months or less when acquired.
(b)Restricted investments, as of March 31, 2022, consist of investments in corporate debt securities of $46.0 million, U.S. government agency securities of $38.6 million and corporate certificates of deposits of $0.5 million with maturities of up to five years , and are valued based on pricing models, which are determined from a compilation of primarily observable market information, broker quotes in non-active markets or similar assets and are therefore classified as Level 2 assets. As of December 31, 2021, restricted investments consisted of investments in corporate debt securities of $46.7 million, U.S. government agency securities of $37.1 million and corporate certificates of deposits of $0.6 million with maturities of up to five years . The amortized cost of these available-for-sale securities at March 31, 2022 and December 31, 2021 was not materially different from the fair value.
(c)Investments in lieu of retention are included in retention receivable and as of March 31, 2022 are comprised of corporate debt securities of $58.6 million, money market funds of $25.9 million and municipal bonds of $1.1 million. The fair values of the money market funds are measured using quoted market prices; therefore, they are classified as Level 1 assets. The corporate and municipal bonds have maturity periods up to five years, and their fair values are determined from a compilation of primarily observable market information, third-party quoted market prices, broker quotes in non-active markets or similar assets; therefore, they are classified as Level 2 assets. As of December 31, 2021, investments in lieu of retention consisted of corporate debt securities of $57.5 million, money market funds of $27.5 million and municipal bonds of $1.3 million. The amortized cost of these available-for-sale securities at March 31, 2022 and December 31, 2021 was not materially different from the fair value.
The carrying values of receivables, payables and other amounts arising out of normal contract activities, including retention, which may be settled beyond one year, are estimated to approximate fair value. Of the Company’s long-term debt, the fair value of the 2017 Senior Notes was $476.8 million and $504.9 million as of March 31, 2022 and December 31, 2021, respectively. The fair value of the 2017 Senior Notes was determined using Level 1 inputs, specifically current observable market prices. The fair value of the Term Loan B was $409.2 million and $419.7 million as of March 31, 2022 and December 31, 2021, respectively. The fair value of the Term Loan B was determined using Level 2 inputs, specifically third-party quoted market prices. The reported value of the Company’s remaining borrowings approximates fair value as of March 31, 2022 and December 31, 2021.
(14)Variable Interest Entities (VIEs)
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TUTOR PERINI CORPORATION AND SUBSIDIARIES
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
UNAUDITED
sufficient to permit the entity to finance its activities without additional subordinated financial support, (b) characteristics of a controlling financial interest are missing (either the ability to make decisions through voting or other rights, the obligation to absorb the expected losses of the entity or the right to receive the expected residual returns of the entity), or (c) the voting rights of the equity holders are not proportional to their obligations to absorb the expected losses of the entity and/or their rights to receive the expected residual returns of the entity, and substantially all of the entity’s activities either involve or are conducted on behalf of an investor that has disproportionately few voting rights. Upon the occurrence of certain events outlined in ASC 810, the Company reassesses its initial determination of whether a joint venture is a VIE.
ASC 810 also requires the Company to determine whether it is the primary beneficiary of the VIE. The Company concludes that it is the primary beneficiary and consolidates the VIE if the Company has both (a) the power to direct the economically significant activities of the VIE and (b) the obligation to absorb losses of, or the right to receive benefits from, the VIE that could potentially be significant to the VIE. The Company considers the contractual agreements that define the ownership structure, distribution of profits and losses, risks, responsibilities, indebtedness, voting rights and board representation of the respective parties in determining if the Company is the primary beneficiary. The Company also considers all parties that have direct or implicit variable interests when determining whether it is the primary beneficiary. In accordance with ASC 810, management’s assessment of whether the Company is the primary beneficiary of a VIE is performed continuously.
As of March 31, 2022, the Company had unconsolidated VIE-related current assets and liabilities of $0.5 million and $0.1 million, respectively, included in the Company’s Condensed Consolidated Balance Sheet. As of December 31, 2021, the Company had unconsolidated VIE-related current assets and liabilities of $0.7 million and $0.4 million, respectively, included in the Company’s Condensed Consolidated Balance Sheet. The Company’s maximum exposure to loss as a result of its investments in unconsolidated VIEs is typically limited to the aggregate of the carrying value of the investment and future funding commitments. There were no future funding requirements for the unconsolidated VIEs as of March 31, 2022.
As of March 31, 2022, the Company’s Condensed Consolidated Balance Sheet included current and noncurrent assets of $603.1 million and $5.3 million, respectively, as well as current liabilities of $513.2 million related to the operations of its consolidated VIEs. As of December 31, 2021, the Company’s Condensed Consolidated Balance Sheet included current and noncurrent assets of $568.2 million and $3.0 million, respectively, as well as current liabilities of $496.9 million related to the operations of its consolidated VIEs.
Below is a discussion of some of the Company’s more significant or unique VIEs.
The Company established a joint venture to construct the Purple Line Extension Section 2 (Tunnels and Stations) and Section 3 (Stations) mass-transit projects in Los Angeles, California with an original combined value of approximately $2.8 billion. The Company has a 75 % interest in the joint venture with the remaining 25 % held by O&G Industries, Inc. The joint venture was initially financed with contributions from the partners and, per the terms of the joint venture agreement, the partners may be required to provide additional capital contributions in the future. The Company has determined that this joint venture is a VIE for which the Company is the primary beneficiary.
The Company also established a joint venture with Parsons Corporation (“Parsons”) to construct the Newark Liberty International Airport Terminal One project, a transportation infrastructure project in Newark, New Jersey with an original value of approximately $1.4 billion. The Company has an 80 % interest in the joint venture with the remaining 20 % held by Parsons. The joint venture was initially financed with contributions from the partners and, per the terms of the joint venture agreement, the partners may be required to provide additional capital contributions in the future. The Company has determined that this joint venture is a VIE for which the Company is the primary beneficiary.
21
TUTOR PERINI CORPORATION AND SUBSIDIARIES
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
UNAUDITED
(15)Changes in Equity
A reconciliation of the changes in equity for the three months ended March 31, 2022 and 2021 is provided below:
| Three Months Ended March 31, 2022 | ||||||||||||||||||||
| (in thousands) | Common Stock | Additional Paid-in Capital | Retained Earnings | Accumulated Other Comprehensive Loss | Noncontrolling Interests | Total Equity | ||||||||||||||
| Balance - December 31, 2021 | $ | $ | $ | $ | ( | $ | $ | |||||||||||||
| Net income (loss) | — | — | ( | — | ( | |||||||||||||||
| Other comprehensive loss | — | — | — | ( | ( | ( | ||||||||||||||
| Share-based compensation | — | — | — | — | ||||||||||||||||
| Issuance of common stock, net | ( | — | — | — | ( | |||||||||||||||
| Contributions from noncontrolling interests | — | — | — | — | ||||||||||||||||
| Distributions to noncontrolling interests | — | — | — | — | ( | ( | ||||||||||||||
| Balance - March 31, 2022 | $ | $ | $ | $ | ( | $ | $ | |||||||||||||
| Three Months Ended March 31, 2021 | ||||||||||||||||||||
| (in thousands) | Common Stock | Additional Paid-in Capital | Retained Earnings | Accumulated Other Comprehensive Loss | Noncontrolling Interests | Total Equity | ||||||||||||||
| Balance - December 31, 2020 | $ | $ | $ | $ | ( | $ | ( | $ | ||||||||||||
| Net income | — | — | — | |||||||||||||||||
| Other comprehensive income (loss) | — | — | — | ( | ( | |||||||||||||||
| Share-based compensation | — | — | — | — | ||||||||||||||||
| Issuance of common stock, net | ( | — | — | — | ( | |||||||||||||||
| Contributions from noncontrolling interests | — | — | — | — | ||||||||||||||||
| Balance - March 31, 2021 | $ | $ | $ | $ | ( | $ | $ | |||||||||||||
22
TUTOR PERINI CORPORATION AND SUBSIDIARIES
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
UNAUDITED
(16)Other Comprehensive Income (Loss)
ASC 220, Comprehensive Income, establishes standards for reporting comprehensive income and its components in the consolidated financial statements. The Company reports the change in pension benefit plan assets/liabilities, cumulative foreign currency translation and change in fair value of investments as components of accumulated other comprehensive income (loss) (“AOCI”).
The components of other comprehensive income (loss) and the related tax effects for the three months ended March 31, 2022 and 2021 were as follows:
| Three Months Ended March 31, 2022 | Three Months Ended March 31, 2021 | ||||||||||||||||||||||
| (in thousands) | Before-Tax Amount | Tax (Expense) Benefit | Net-of-Tax Amount | Before-Tax Amount | Tax (Expense) Benefit | Net-of-Tax Amount | |||||||||||||||||
| Other comprehensive income (loss): | |||||||||||||||||||||||
| Defined benefit pension plan adjustments | $ | $ | ( | $ | $ | $ | ( | $ | |||||||||||||||
| Foreign currency translation adjustments | ( | ||||||||||||||||||||||
| Unrealized loss in fair value of investments | ( | ( | ( | ( | |||||||||||||||||||
| Total other comprehensive income (loss) | ( | ( | ( | ( | |||||||||||||||||||
| Less: Other comprehensive income (loss) attributable to noncontrolling interests | ( | ( | |||||||||||||||||||||
| Total other comprehensive income (loss) attributable to Tutor Perini Corporation | $ | ( | $ | $ | ( | $ | ( | $ | $ | ( | |||||||||||||
The changes in AOCI balances by component (after tax) attributable to Tutor Perini Corporation and attributable to noncontrolling interests during the three months ended March 31, 2022 and 2021 were as follows:
| Three Months Ended March 31, 2022 | ||||||||||||||
| (in thousands) | Defined Benefit Pension Plan | Foreign Currency Translation | Unrealized Gain (Loss) in Fair Value of Investments, Net | Accumulated Other Comprehensive Income (Loss) | ||||||||||
| Attributable to Tutor Perini Corporation: | ||||||||||||||
| Balance as of December 31, 2021 | $ | ( | $ | ( | $ | $ | ( | |||||||
| Other comprehensive loss before reclassifications | ( | ( | ( | |||||||||||
| Amounts reclassified from AOCI | ||||||||||||||
| Total other comprehensive income (loss) | ( | ( | ( | |||||||||||
| Balance as of March 31, 2022 | $ | ( | $ | ( | $ | ( | $ | ( | ||||||
| Attributable to Noncontrolling Interests: | ||||||||||||||
| Balance as of December 31, 2021 | $ | $ | $ | $ | ||||||||||
| Other comprehensive income (loss) | ( | ( | ||||||||||||
| Balance as of March 31, 2022 | $ | $ | $ | ( | $ | |||||||||
23
TUTOR PERINI CORPORATION AND SUBSIDIARIES
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
UNAUDITED
| Three Months Ended March 31, 2021 | ||||||||||||||
| (in thousands) | Defined Benefit Pension Plan | Foreign Currency Translation | Unrealized Gain (Loss) in Fair Value of Investments, Net | Accumulated Other Comprehensive Income (Loss) | ||||||||||
| Attributable to Tutor Perini Corporation: | ||||||||||||||
| Balance as of December 31, 2020 | $ | ( | $ | ( | $ | $ | ( | |||||||
| Other comprehensive income (loss) before reclassifications | ( | ( | ||||||||||||
| Amounts reclassified from AOCI | ( | |||||||||||||
| Total other comprehensive income (loss) | ( | ( | ||||||||||||
| Balance as of March 31, 2021 | $ | ( | $ | ( | $ | $ | ( | |||||||
| Attributable to Noncontrolling Interests: | ||||||||||||||
| Balance as of December 31, 2020 | $ | $ | $ | $ | ||||||||||
| Other comprehensive income | ||||||||||||||
| Balance as of March 31, 2021 | $ | $ | $ | $ | ||||||||||
The significant items reclassified out of AOCI and the corresponding location and impact on the Condensed Consolidated Statements of Operations during the three months ended March 31, 2022 and 2021 were as follows:
| Three Months Ended March 31, | |||||||||||||||||
| (in thousands) | 2022 | 2021 | |||||||||||||||
| Component of AOCI: | |||||||||||||||||
Defined benefit pension plan adjustments(a) | $ | $ | |||||||||||||||
Income tax benefit(b) | ( | ( | |||||||||||||||
| Net of tax | $ | $ | |||||||||||||||
Unrealized (gain) loss in fair value of investment adjustments(a) | $ | $ | ( | ||||||||||||||
Income tax expense (benefit)(b) | ( | ||||||||||||||||
| Net of tax | $ | $ | ( | ||||||||||||||
___________________________________________________________________________________________________
(a)Amount included in other income, net on the Condensed Consolidated Statements of Operations.
(b)Amounts included in income tax (expense) benefit on the Condensed Consolidated Statements of Operations.
(17)Business Segments
The Company offers general contracting, pre-construction planning and comprehensive project management services, including planning and scheduling of manpower, equipment, materials and subcontractors required for the timely completion of a project in accordance with the terms and specifications contained in a construction contract. The Company also offers self-performed construction services: site work, concrete forming and placement, steel erection, electrical, mechanical, plumbing, and HVAC (heating, ventilation and air conditioning). As described below, the Company’s business is conducted through three segments: Civil, Building and Specialty Contractors. These segments are determined based on how the Company’s Chairman and Chief Executive Officer (chief operating decision maker) aggregates business units when evaluating performance and allocating resources.
The Civil segment specializes in public works construction and the replacement and reconstruction of infrastructure. The contracting services provided by the Civil segment include construction and rehabilitation of highways, bridges, tunnels, mass-transit systems, military defense facilities, and water management and wastewater treatment facilities.
The Building segment has significant experience providing services for private and public works customers in a number of specialized building markets, including: hospitality and gaming, transportation, health care, commercial offices, government facilities, sports and entertainment, education, correctional facilities, biotech, pharmaceutical, industrial and technology.
24
TUTOR PERINI CORPORATION AND SUBSIDIARIES
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
UNAUDITED
The Specialty Contractors segment specializes in electrical, mechanical, plumbing, HVAC and fire protection systems for a full range of civil and building construction projects in the industrial, commercial, hospitality and gaming, and mass-transit end markets. This segment provides the Company with unique strengths and capabilities that allow the Company to position itself as a full-service contractor with greater control over scheduled work, project delivery, and cost and risk management.
To the extent that a contract is co-managed and co-executed among segments, the Company allocates the share of revenues and costs of the contract to each segment to reflect the shared responsibilities in the management and execution of the project.
The following tables set forth certain reportable segment information relating to the Company’s operations for the three months ended March 31, 2022 and 2021:
| Reportable Segments | ||||||||||||||||||||||||||
| (in thousands) | Civil | Building | Specialty Contractors | Total | Corporate | Consolidated Total | ||||||||||||||||||||
| Three Months Ended March 31, 2022 | ||||||||||||||||||||||||||
| Total revenue | $ | $ | $ | $ | $ | — | $ | |||||||||||||||||||
| Elimination of intersegment revenue | ( | ( | ( | ( | — | ( | ||||||||||||||||||||
| Revenue from external customers | $ | $ | $ | $ | $ | — | $ | |||||||||||||||||||
| Income (loss) from construction operations | $ | ( | $ | $ | ( | $ | (a) | $ | ( | (b) | $ | ( | ||||||||||||||
| Capital expenditures | $ | $ | $ | $ | $ | $ | ||||||||||||||||||||
Depreciation and amortization(c) | $ | $ | $ | $ | $ | $ | ||||||||||||||||||||
| Three Months Ended March 31, 2021 | ||||||||||||||||||||||||||
| Total revenue | $ | $ | $ | $ | $ | — | $ | |||||||||||||||||||
| Elimination of intersegment revenue | ( | ( | ( | ( | — | ( | ||||||||||||||||||||
| Revenue from external customers | $ | $ | $ | $ | $ | — | $ | |||||||||||||||||||
| Income (loss) from construction operations | $ | $ | $ | $ | $ | ( | (b) | $ | ||||||||||||||||||
| Capital expenditures | $ | $ | $ | $ | $ | $ | ||||||||||||||||||||
Depreciation and amortization(c) | $ | $ | $ | $ | $ | $ | ||||||||||||||||||||
____________________________________________________________________________________________________
(a)During the three months ended March 31, 2022, the Company’s income (loss) from construction operations was negatively impacted by $25.5 million (an after-tax impact of $18.3 million, or $0.36 per diluted share) due to an adverse legal ruling on a dispute related to a Civil segment bridge project in New York and $17.6 million (an after-tax impact of $13.9 million, or $0.27 per diluted share) on a Civil segment mass-transit project in California, which resulted from the successful negotiation of significant lower margin (and lower risk) change orders that increased the project’s overall estimated profit but reduced the project’s percentage of completion and overall margin percentage.
(b)Consists primarily of corporate general and administrative expenses.
(c)Depreciation and amortization is included in income (loss) from construction operations.
A reconciliation of segment results to the consolidated income (loss) before income taxes is as follows:
| Three Months Ended March 31, | |||||||||||||||||
| (in thousands) | 2022 | 2021 | |||||||||||||||
| Income (loss) from construction operations | $ | ( | $ | ||||||||||||||
| Other income, net | |||||||||||||||||
| Interest expense | ( | ( | |||||||||||||||
| Income (loss) before income taxes | $ | ( | $ | ||||||||||||||
25
TUTOR PERINI CORPORATION AND SUBSIDIARIES
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
UNAUDITED
Total assets by segment were as follows:
| (in thousands) | As of March 31, 2022 | As of December 31, 2021 | ||||||
| Civil | $ | $ | ||||||
| Building | ||||||||
| Specialty Contractors | ||||||||
Corporate and other(a) | ( | ( | ||||||
| Total assets | $ | $ | ||||||
____________________________________________________________________________________________________
(a)Consists principally of cash, equipment, tax-related assets and insurance-related assets, offset by the elimination of assets related to intersegment revenue.
26
TUTOR PERINI CORPORATION AND SUBSIDIARIES
Item 2. Management’s Discussion and Analysis of Financial Condition and Results of Operations
The following discusses our financial position as of March 31, 2022 and the results of our operations for the three months ended March 31, 2022 and should be read in conjunction with other information, including the unaudited Condensed Consolidated Financial Statements and notes included in Part I, Item 1, Financial Information, of this Quarterly Report on Form 10‑Q, the audited consolidated financial statements and accompanying notes to our Annual Report on Form 10‑K for the year ended December 31, 2021, and the information contained under the heading “Risk Factors” in our Annual Report on Form 10‑K for the year ended December 31, 2021 and in Part II, Item 1A below.
Forward-Looking Statements
This Quarterly Report on Form 10‑Q, including the “Management’s Discussion and Analysis of Financial Condition and Results of Operations,” contains forward-looking statements regarding future events and our future results, which are intended to be covered by the safe harbor provision for forward-looking statements provided by the Private Securities Litigation Reform Act of 1995. All statements other than statements of historical facts are statements that could be deemed forward-looking statements. Words such as “achieve,” “anticipate,” “assumes,” “believes,” “continue,” “could,” “estimate,” “expects,” “forecast,” “hope,” “intend,” “may,” “plan,” “potential,” “predict,” “should,” “will,” “would,” variations of such words and similar expressions are intended to identify such forward-looking statements. In addition, any statements that refer to projections of our future financial performance, our anticipated growth and trends in our businesses, and other characterizations of future events or circumstances are forward-looking statements. Although such statements are based on currently available financial and economic data, as well as management’s estimates and expectations, forward-looking statements are inherently uncertain and involve risks and uncertainties that could cause our actual results to differ materially from what may be inferred from the forward-looking statements. Therefore, actual results may differ materially and adversely from those expressed in any forward-looking statements. Factors potentially contributing to such differences include, among others:
•Revisions of estimates of contract risks, revenue or costs; economic factors such as inflation; the timing of new awards; or the pace of project execution, which may result in losses or lower than anticipated profit;
•Unfavorable outcomes of existing or future litigation or dispute resolution proceedings against us or customers (project owners, developers, general contractors, etc.), subcontractors or suppliers, as well as failure to promptly recover significant working capital invested in projects subject to such matters;
•Contract requirements to perform extra work beyond the initial project scope, which has and in the future could result in disputes or claims and adversely affect our working capital, profits and cash flows;
•A significant slowdown or decline in economic conditions;
•Increased competition and failure to secure new contracts;
•Risks and other uncertainties associated with assumptions and estimates used to prepare our financial statements;
•Failure to meet contractual schedule requirements, which could result in higher costs and reduced profits or, in some cases, exposure to financial liability for liquidated damages and/or damages to customers, as well as damage to our reputation;
•Inability to attract and retain our key officers, and to adequately plan for their succession, and hire and retain personnel required to execute and perform on our contracts;
•The COVID-19 pandemic, which has adversely impacted, and could continue to adversely impact, our business, financial condition and results of operations by, among other things, delaying the timing of project bids and/or awards and the timing of dispute resolutions and associated collections;
•Risks related to our international operations, such as uncertainty of U.S. Government funding, as well as economic, political, regulatory and other risks, including risks of loss due to acts of war, civil unrest, security issues, labor conditions, corruption and other unforeseeable events in countries where we do business, resulting in unanticipated losses;
•Possible systems and information technology interruptions and breaches in data security and/or privacy;
•Client cancellations of, or reductions in scope under, contracts reported in our backlog;
•Failure of our joint venture partners to perform their venture obligations, which could impose additional financial and performance obligations on us, resulting in reduced profits or losses and/or reputational harm;
•The impact of inclement weather conditions on projects;
•Decreases in the level of government spending for infrastructure and other public projects;
•Risks related to government contracts and related procurement regulations;
•Securities litigation and/or shareholder activism;
•Violations of the U.S. Foreign Corrupt Practices Act and similar worldwide anti-bribery laws;
•Adverse health events, such as an epidemic or another pandemic;
27
•Physical and regulatory risks related to climate change;
•Failure to meet our obligations under our debt agreements;
•Downgrades in our credit ratings;
•Impairment of our goodwill or other indefinite-lived intangible assets; and
•The exertion of influence over the Company by our chairman and chief executive officer due to his position and significant ownership interest.
Executive Overview
COVID-19 Update
Since its onset in early 2020, the COVID-19 pandemic has caused occasional temporary shortages in available manpower, reductions in field labor productivity, other inefficiencies, delays to project schedules and deferrals of project execution. As a result, we continue to incur incremental costs, much of which we are seeking to recover from our customers as allowed by contractual terms. The relief sought from customers, together with certain incremental project opportunities that resulted from the pandemic, has helped to mitigate the pandemic's negative impact on our financial results. In addition, we have experienced delays in certain legal proceedings, as various courts and arbitrators process a large backlog of cases that were impacted by the pandemic. The COVID-19 pandemic has also hindered the Company’s ability to resolve unapproved work, resulting in the need for the Company to temporarily fund certain project costs that historically would have been promptly negotiated, billed to and collected from customers. These delays in resolving and recovering on such claims have adversely affected our liquidity and financial results since the onset of the pandemic. However, in the latter part of 2021 and the first quarter of 2022, we began to see the scheduling of settlement conferences and trial dates and made progress in resolving certain project disputes and change orders.
Throughout 2020 and much of 2021, the pandemic also adversely affected the volume and timing of our new awards, which has negatively impacted our backlog and operating results. The resulting negative impact in the first quarter of 2022 is expected to continue due to previously limited bidding and proposal opportunities, as well as the relatively lower volume of new awards in 2020 and much of 2021. In addition, many of our state and local government customers’ revenue sources have been negatively impacted by the pandemic due to a reduction of commuter and business travel, including curtailed ridership on mass-transit systems (buses, subways, trains, etc.), travel on commercial airlines and driving by the general public. These impacts have resulted in reduced fare and toll collections, lower fuel tax receipts and reduced airport and other facility usage fees. The significant revenue reductions experienced by some of our customers have adversely impacted their ability to pay the Company on a timely basis for amounts due, although these impacts have begun to moderate. The potential for continued or new pandemic-related delays in project bids and awards could result in lower-than-expected revenue and earnings until such time as the substantial funding relating to the recently enacted federal infrastructure legislation is distributed to existing and potential customers.
Due to the continued fluidity of the COVID-19 pandemic, uncertainties as to its scope and duration, and ongoing changes in the way that governments, businesses and individuals respond to the pandemic, the Company is unable at this time to accurately predict the pandemic’s future impact on the Company’s business, results of operations, financial condition or liquidity.
Operating Results
Consolidated revenue for the three months ended March 31, 2022 was $1.0 billion compared to $1.2 billion for the same period in 2021. The decrease was primarily due to reduced project execution activities on a completed technology project and a mass-transit project that is nearing completion, both in California, as well as the impact of an adverse legal ruling on a dispute related to a completed Civil segment bridge project in New York and the temporary unfavorable impact from the successful negotiation of certain change orders on another Civil segment mass-transit project in California. The decrease was also due to lower project execution activities in the Northeast, partially offset by certain projects in California and the Midwest. The COVID-19 pandemic resulted in delays in new awards, which negatively impacted revenue for the first quarter of both 2022 and 2021.
Loss from construction operations for the first quarter of 2022 was $9.9 million compared to income from construction operations of $49.7 million for the same period in 2021. The change was partially attributable to the impacts of the above-mentioned adverse legal ruling, which resulted in a non-cash, pre-tax charge of $25.5 million. The decrease was also driven by a temporary unfavorable impact to current-period earnings of $17.6 million on a Civil segment mass-transit project in California, as a result of the successful negotiation of significant lower margin (and lower risk) change orders that increased the project’s overall estimated profit but reduced the project’s percentage of completion and overall margin percentage. This temporary reduction to earnings is expected to reverse itself over the remaining life of the project. In addition, the decrease was also attributable to the revenue decline discussed above.
28
The effective tax rate was 17.1% for the three months ended March 31, 2022 compared to 21.7% for the comparable period in 2021. See Corporate, Tax and Other Matters below for a discussion of the change in the effective tax rate.
The loss per common share for the three months ended March 31, 2022 was $0.42 compared to diluted earnings per common share of $0.31 for the same period in 2021. The loss per common share for the first quarter of 2022 compared to the earnings per common share for the same period in 2021 was primarily due to the factors discussed above that led to the change in income (loss) from construction operations.
Consolidated new awards for the three months ended March 31, 2022 totaled $996 million, up modestly compared to $959 million for the same period in 2021. The Civil and Building segments were the primary contributors to the new award activity in the first quarter of 2022. The most significant new awards in the first quarter of 2022 included a $260 million gas pipeline project in British Columbia, Canada, and $121 million of additional funding for a mass-transit project in California, both in the Civil segment; and four Building segment projects in California totaling $251 million.
Consolidated backlog as of March 31, 2022 was $8.3 billion, up slightly compared to $8.2 billion as of December 31, 2021. As of March 31, 2022, the mix of backlog by segment was approximately 56% for Civil, 28% for Building and 16% for Specialty Contractors.
The following table presents the Company’s backlog by business segment, reflecting changes from December 31, 2021 to March 31, 2022:
| (in millions) | Backlog at December 31, 2021 | New Awards(a) | Revenue Recognized | Backlog at March 31, 2022(b) | ||||||||||
| Civil | $ | 4,553.5 | $ | 447.0 | $ | (390.9) | $ | 4,609.6 | ||||||
| Building | 2,308.9 | 325.2 | (330.6) | 2,303.5 | ||||||||||
| Specialty Contractors | 1,373.2 | 224.2 | (230.7) | 1,366.7 | ||||||||||
| Total | $ | 8,235.6 | $ | 996.4 | $ | (952.2) | $ | 8,279.8 | ||||||
____________________________________________________________________________________________________
(a)New awards consist of the original contract price of projects added to backlog plus or minus subsequent changes to the estimated total contract price of existing contracts.
(b)Backlog may differ from the transaction prices allocated to the remaining performance obligations as disclosed in Note 2 of the Notes to Condensed Consolidated Financial Statements. Such differences relate to the timing of executing a formal contract or receiving a notice to proceed. More specifically, backlog sometimes may include awards for which a contract has not yet been executed or a notice to proceed has not been issued, but for which there are no remaining major uncertainties that the project will proceed (e.g., adequate funding is in place).
The outlook for the Company’s growth over the next several years remains favorable, but the impact of the COVID-19 pandemic could again adversely affect performance and operations, and the amount and timing of new work awarded. In addition, the Company’s growth could be impacted by future project delays or the timing of project awards, commencements, ramp-up activities and completions. We anticipate that we will continue to win our share of significant new awards resulting from long-term capital spending plans by state, local and federal customers, as well as limited competition for some of the largest project opportunities.
In elections over the past several years, voters in numerous states approved dozens of long-term transportation funding measures totaling approximately $200 billion in long-term funding. The largest of these was in Los Angeles County, where Measure M, a half-cent sales tax increase, was approved and is expected to generate $120 billion of funding over 40 years. In addition, California's Senate Bill 1, which was signed into law in 2017, is providing an average of $5.4 billion annually through 2027 for various transportation, mass-transit and bridge projects. Despite recent increases, which had been anticipated, interest rates still remain relatively attractive, which may be conducive to continued and increased spending on infrastructure projects. However, if borrowing rates continue to increase significantly, they could reach levels that may begin to negatively impact infrastructure demand, although this is more likely to impact Building segment projects, as those projects tend to be more directly correlated to economic conditions.
The Infrastructure Investment and Jobs Act (“IIJA”) was enacted into law on November 15, 2021, and it provides for $1.2 trillion of federal infrastructure funding, including $550 billion in new spending for improvements to the country’s surface-transportation network and enhancements to core infrastructure. The IIJA marks the largest federal investment in public transit ever, the single largest dedicated bridge investment since the construction of the interstate highway system and the largest federal investment in passenger rail since the creation of Amtrak, all in addition to providing for regular annual spending for numerous infrastructure projects. This significant incremental funding is anticipated to be spent over the next 10 years, and
29
much of it is allocated for investment in end markets that are directly aligned with the Company’s market focus. Accordingly, the Company believes that this significant level of sustained, incremental funding will favorably impact the Company’s current work and prospective opportunities over the next decade once it begins flowing to customers.
The Company had certain large Civil segment projects in the Northeast that were completed or were nearing completion in 2021. The Company is pursuing several large prospective projects in various locations, including the Northeast, the West Coast and Guam, which are expected to be bid and/or awarded in 2022 and 2023. However, the timing and magnitude of revenue contributions from these prospective projects may not fully offset revenue reductions associated with the projects that have been completed or are nearing completion. In addition, as discussed above, the COVID-19 pandemic has resulted in, and could again result in, delays in the bidding and awarding of certain projects that the Company is pursuing, which may further delay large, new revenue streams.
For a more detailed discussion of operating performance of each business segment, corporate general and administrative expenses and other items, see Results of Segment Operations, Corporate, Tax and Other Matters and Liquidity and Capital Resources below.
Results of Segment Operations
The results of our Civil, Building and Specialty Contractors segments are discussed below.
Civil Segment
Revenue and income (loss) from construction operations for the Civil segment are summarized as follows:
| Three Months Ended March 31, | |||||||||||||||||
| (in millions) | 2022 | 2021 | |||||||||||||||
| Revenue | $ | 390.8 | $ | 475.6 | |||||||||||||
| Income (loss) from construction operations | (1.0) | 50.1 | |||||||||||||||
Revenue for the three months ended March 31, 2022 decreased 18% compared to the same period in 2021. The largest contributing factor to the decrease was reduced project execution activities on a mass-transit project in California that is nearing completion. The decrease was also due to the impact of the adverse legal ruling on a dispute related to a bridge project in New York and the temporary unfavorable impact from the successful negotiation of certain change orders on another Civil segment mass-transit project in California. Revenue for the first quarters of 2022 and 2021 also was reduced by the aforementioned COVID-19 impacts.
Loss from construction operations for the three months ended March 31, 2022 was $1.0 million compared to income from construction operations of $50.1 million for the same period in 2021. The decrease was primarily due to the impact of the aforementioned adverse legal ruling on a dispute related to a bridge project in New York that resulted in a non-cash, pre-tax charge of $25.5 million, as well as the aforementioned temporary unfavorable impact of $17.6 million on a Civil segment mass-transit project in California, both as discussed in the section entitled Executive Overview. The decrease was also a result of the revenue reductions discussed above.
Operating margin was (0.2)% and 10.5% for the three months ended March 31, 2022 and 2021, respectively. The operating margin decrease was due to the above-mentioned factors that drove the changes in revenue and income from construction operations.
New awards in the Civil segment totaled $447 million for the first quarter of 2022 compared to $457 million for the same period in 2021. The most significant new awards in the first quarter of 2022 included a $260 million gas pipeline project in British Columbia, Canada, and $121 million of additional funding for a mass-transit project in California. The COVID-19 pandemic has resulted in significant revenue shortfalls for many state and local government agencies since 2020, and it could continue to cause deferrals or cancellations of certain new projects, depending on the allocation and prioritization of state and local funding, as well as the availability, timing and magnitude of funding from the federal government, including anticipated funding from the recently enacted IIJA.
Backlog for the Civil segment was $4.6 billion as of March 31, 2022 compared to $4.8 billion as of March 31, 2021, with the modest decline due to revenue that exceeded the volume of new awards over the comparative period, as new awards for the segment have been negatively impacted by the COVID-19 pandemic. The segment continues to experience strong demand reflected in a large, multi-year pipeline of prospective projects, supported by substantial anticipated funding from various voter-
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approved transportation measures and the IIJA, and by public agencies’ long-term spending plans. The Civil segment is well-positioned to capture its share of these prospective projects, but the timing of new awards remains uncertain.
Building Segment
Revenue and income from construction operations for the Building segment are summarized as follows:
| Three Months Ended March 31, | |||||||||||||||||
| (in millions) | 2022 | 2021 | |||||||||||||||
| Revenue | $ | 330.6 | $ | 407.2 | |||||||||||||
| Income from construction operations | 9.5 | 11.2 | |||||||||||||||
Revenue for the three months ended March 31, 2022 decreased 19% compared to the same period in 2021, primarily due to reduced project execution activities on various projects in California that are substantially complete, partially offset by contributions from certain newer projects in California. Revenue for the first quarters of 2022 and 2021 also was reduced by the aforementioned COVID-19 impacts.
Income from construction operations for the three months ended March 31, 2022 decreased 16% compared to the same period in 2021. The decrease was primarily due to the revenue reductions mentioned above.
Operating margin was 2.9% for the three months ended March 31, 2022, essentially level compared to 2.8% for the same period in 2021.
New awards in the Building segment totaled $325 million for the first quarter of 2022 compared to $344 million for the same period in 2021. The most significant new awards in the first quarter of 2022 included two health care projects, an educational project and an entertainment venue project, all in California, totaling $251 million.
Backlog for the Building segment was $2.3 billion as of March 31, 2022 compared to $1.6 billion as of March 31, 2021. The increase was primarily driven by two large new awards that were booked into backlog in the third quarter of 2021. The Building segment continues to have a large volume of prospective projects across various end markets and geographic locations. We expect continued strong demand as economic conditions remain conducive to customer spending on new building facilities and renovations to existing buildings, supported by a still relatively favorable interest rate environment. However, the COVID-19 pandemic has resulted in, and could again result in, reduced demand for our building construction services, as could significantly higher interest rates.
Specialty Contractors Segment
Revenue and income (loss) from construction operations for the Specialty Contractors segment are summarized as follows:
| Three Months Ended March 31, | |||||||||||||||||
| (in millions) | 2022 | 2021 | |||||||||||||||
| Revenue | $ | 230.7 | $ | 324.8 | |||||||||||||
| Income (loss) from construction operations | (3.9) | 1.3 | |||||||||||||||
Revenue for the three months ended March 31, 2022 decreased 29% compared to the same period in 2021. The decrease was principally driven by reduced project execution activities on various electrical and mechanical projects in the Northeast. Revenue for the first quarters of 2022 and 2021 also was reduced by the aforementioned COVID-19 impacts.
Loss from construction operations for the three months ended March 31, 2022 was $3.9 million compared to income from construction operations of $1.3 million for the comparable period in 2021. The change was primarily due to lower profitability and reduced project execution activities in the Northeast, including the electrical and mechanical components of a transportation project that is nearing completion.
Operating margin was (1.7)% and 0.4% for the three months ended March 31, 2022 and 2021, respectively. The change in operating margin was principally due to the aforementioned factors that drove the changes in revenue and income (loss) from construction operations.
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New awards in the Specialty Contractors segment totaled $224 million for the first quarter of 2022 compared to $158 million for the same period in 2021. The COVID-19 pandemic has resulted in, and could continue to result in, reduced demand from certain commercial and government customers that have been experiencing funding constraints.
Backlog for the Specialty Contractors segment was $1.4 billion as of March 31, 2022 compared to $1.7 billion as of March 31, 2021, with the decline due to revenue that exceeded the volume of new awards over the comparative period, as new awards for the segment have been negatively impacted by the COVID-19 pandemic. The Specialty Contractors segment continues to be increasingly focused on servicing the Company’s backlog of large Civil and Building segment projects, particularly in the Northeast and California. In addition, the segment remains well-positioned to capture its share of new projects for external customers, leveraging the size and scale of our business units that operate in New York, Texas, Florida and California and the strong reputation held by these business units for high-quality work on large, complex projects.
Corporate, Tax and Other Matters
Corporate General and Administrative Expenses
Corporate general and administrative expenses were $14.5 million and $12.9 million during the three months ended March 31, 2022 and 2021, respectively. The increase in the three months ended March 31, 2022 was primarily due to higher compensation-related expenses compared to the same period in 2021.
Other Income, Net, Interest Expense and Income Tax (Expense) Benefit
| Three Months Ended March 31, | |||||||||||||||||
| (in millions) | 2022 | 2021 | |||||||||||||||
| Other income, net | $ | 3.7 | $ | 0.2 | |||||||||||||
| Interest expense | (16.5) | (17.8) | |||||||||||||||
| Income tax (expense) benefit | 3.9 | (7.0) | |||||||||||||||
Other income, net improved by $3.5 million for the three months ended March 31, 2022 compared to the same period in 2021. The improvement in the 2022 period was primarily due to interest earned on federal income tax receivable balances.
Interest expense decreased $1.3 million for the three months ended March 31, 2022 compared to the same period in 2021. The decrease in the 2022 period was primarily due to the absence of amortization of discount and debt issuance costs on convertible notes that were repaid in 2021.
The effective tax rate was 17.1% and 21.7% for the three months ended March 31, 2022 and 2021, respectively. The lower effective income tax rate for the three months ended March 31, 2022 was primarily due to earnings attributable to non-controlling interests, for which income taxes are not the responsibility of the Company, and share-based compensation adjustments in the 2022 period. For a further discussion of income taxes, refer to Note 6 of the Notes to Condensed Consolidated Financial Statements.
Liquidity and Capital Resources
Liquidity is provided by available cash and cash equivalents, cash generated from operations, credit facilities and access to capital markets. We have a committed line of credit totaling $175 million, which may be used for revolving loans, letters of credit and/or general purposes. We believe that cash generated from operations, along with our unused credit capacity of $134 million and available cash balances as of March 31, 2022, will be sufficient to fund any working capital needs and debt maturities for the next 12 months and beyond, provided that we are not adversely impacted by unanticipated future events, including further impacts related to the COVID-19 pandemic as discussed above in Executive Overview - COVID-19 Update. Liquidity has been, and could continue to be, adversely impacted by our inability to collect cash due to the follow-on impacts of COVID-19, which have constrained certain customers’ funding sources and delayed their ability to make payments on approved contract work. In addition, as discussed above in Executive Overview - COVID-19 Update, the COVID-19 pandemic delayed court and arbitration schedules and also hindered the Company’s ability to resolve certain unapproved work. We believe that future funding from the IIJA and increasing revenue to government customers as travel and commuting levels rise, as discussed above, could offset or mitigate future negative impacts from COVID-19, though it remains difficult to predict any of these factors. Furthermore, the bottleneck of accumulated court and arbitration proceedings that has grown during the pandemic has recently begun to alleviate with certain settlement conferences and trial dates now scheduled. In addition, certain disputes and related collection delays were resolved during the latter part of 2021 and the first quarter of 2022. We experienced substantially improved operating cash flows in the first quarter of 2022, and also anticipate improved operating cash generation
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for the remainder of 2022 compared to 2021, based on projected cash collections, both from project execution activities and the resolution of various other outstanding claims and change orders.
Cash and Working Capital
Cash and cash equivalents were $316.5 million as of March 31, 2022 compared to $202.2 million as of December 31, 2021. Cash immediately available for general corporate purposes was $75.8 million and $60.2 million as of March 31, 2022 and December 31, 2021, respectively, with the remainder being amounts held by our consolidated joint ventures and also our proportionate share of cash held by our unconsolidated joint ventures. Cash held by our joint ventures was available only for joint venture-related uses, including distributions to joint venture partners. In addition, our restricted cash and restricted investments totaled $89.9 million as of March 31, 2022 compared to $93.6 million as of December 31, 2021. Restricted cash and restricted investments at March 31, 2022 were primarily held to secure insurance-related contingent obligations.
During the three months ended March 31, 2022, net cash provided by operating activities was $120.7 million, which was the largest first-quarter operating cash flow since the merger between Tutor-Saliba Corporation and Perini Corporation in 2008. This increase was substantially due to a decrease in investments in project working capital. The decrease in investments in project working capital was primarily due to an improved collection cycle, as reflected by increases in billings in excess of costs and estimated earnings, and decreases in accounts receivable and retention receivable. During the three months ended March 31, 2021, net cash used in operating activities was $46.7 million, due primarily to investments in project working capital partially offset by cash generated from earnings sources. The increase in working capital for the first three months of 2021 primarily reflects a decrease in accounts payable due to timing of payments to suppliers and subcontractors and a decrease in accrued expenses and other current liabilities, partially offset by a decrease in accounts receivable due to the timing of collections.
Cash flow from operating activities increased $167.5 million when comparing the first three months of 2022 with the same period in 2021. The significant increase was primarily driven by an improved cash collection cycle, including collections associated with the recent resolution of certain project change orders that were previously disputed and that had previously required a use of cash. The increase in cash flow from operating activities was also due to an increase in accounts payable compared to a decrease in the prior year due to timing of payments to vendors and subcontractors. Despite the increase in accounts payable in the first quarter of 2022, the balance as of March 31, 2022 was $157.2 million lower compared to the balance as of March 31, 2021.
Net cash used in investing activities during the first three months of 2022 was $14.9 million primarily due to the acquisition of property and equipment for projects totaling $12.0 million, as well as net cash used in investment transactions of $4.3 million. Net cash used in investing activities during the first three months of 2021 was $5.4 million primarily due to the acquisition of property and equipment for projects totaling $9.8 million, partially offset by net cash provided from investment transactions of $4.0 million.
Net cash provided by financing activities was $4.1 million for the first three months of 2022, which was primarily driven by $8.6 million of net proceeds from borrowings, partially offset by $3.5 million of net distributions to noncontrolling interests. Net cash provided by financing activities for the comparable period in 2021 was $1.1 million.
At March 31, 2022, we had working capital of $2.1 billion, a ratio of current assets to current liabilities of 2.12 and a ratio of debt to equity of 0.61, compared to working capital of $2.1 billion, a ratio of current assets to current liabilities of 2.17 and a ratio of debt to equity of 0.59 at December 31, 2021.
Debt
2020 Credit Agreement
On August 18, 2020, the Company entered into a credit agreement (the “2020 Credit Agreement”) with BMO Harris Bank N.A., as Administrative Agent, Swing Line Lender and L/C Issuer and other lenders. The 2020 Credit Agreement provides for a $425.0 million term loan B facility (the “Term Loan B”) and a $175.0 million revolving credit facility (the “2020 Revolver”), with sublimits for the issuance of letters of credit and swing line loans up to the aggregate amounts of $75.0 million and $10.0 million, respectively. The Term Loan B will mature on August 18, 2027 and the 2020 Revolver will mature on August 18, 2025, in each case, unless any of the 2017 Senior Notes are outstanding on January 30, 2025 (which is 91 days prior to the maturity of the 2017 Senior Notes), in which case, both the Term Loan B and the 2020 Revolver will mature on January 30, 2025 (subject to certain further exceptions). For more information regarding the terms of our 2020 Credit Agreement, refer to Note 8 of the Notes to Condensed Consolidated Financial Statements.
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The table below presents our actual and required consolidated first lien net leverage ratio under the 2020 Credit Agreement for the period, which is calculated on a rolling four-quarter basis:
| Trailing Four Fiscal Quarters Ended | ||||||||
| March 31, 2022 | ||||||||
| Actual | Required | |||||||
| First lien net leverage ratio | 1.35 to 1.00 | ≤ 2.25 : 1.00 | ||||||
As of March 31, 2022, we were in compliance and expect to continue to be in compliance with the covenants under the 2020 Credit Agreement.
Contractual Obligations
There have been no material changes in our contractual obligations from those described in our Annual Report on Form 10‑K for the year ended December 31, 2021.
Critical Accounting Policies and Estimates
Our significant accounting policies are described in Note 1 of the Notes to Consolidated Financial Statements included in our Annual Report on Form 10‑K for the year ended December 31, 2021. Our critical accounting estimates are also identified and discussed in Part II, Item 7 of our Annual Report on Form 10‑K for the year ended December 31, 2021.
Recently Issued Accounting Pronouncements
There were no new accounting pronouncements issued by the Financial Accounting Standards Board during the three months ended March 31, 2022 and through the date of filing of this report that had or are expected to have a material impact on the Company’s financial position, results of operations or cash flows.
Item 3. Quantitative and Qualitative Disclosures About Market Risk
There has been no material change in our exposure to market risk from that described in Part II, Item 7A of our Annual Report on Form 10‑K for the year ended December 31, 2021.
Item 4. Controls and Procedures
Disclosure Controls and Procedures
An evaluation of the effectiveness of the design and operation of our disclosure controls and procedures as defined by Rule 13a-15(e) under the Securities Exchange Act of 1934, as amended (“Exchange Act”), as of the end of the period covered by this Quarterly Report on Form 10‑Q was made under the supervision and with the participation of our management, including our Chief Executive Officer and Chief Financial Officer. Based upon that evaluation, the Chief Executive Officer and Chief Financial Officer concluded that the Company’s disclosure controls and procedures (a) were effective to ensure that information we are required to disclose in reports that we file or submit under the Exchange Act is recorded, processed, summarized and reported within the time periods specified in Securities and Exchange Commission rules and forms and (b) include, without limitation, controls and procedures designed to ensure that information required to be disclosed by us in reports filed or submitted under the Exchange Act is accumulated and communicated to our management, including our Chief Executive Officer and Chief Financial Officer, as appropriate, to allow timely decisions regarding required disclosure.
Changes in Internal Control Over Financial Reporting
There were no changes in our internal control over financial reporting during the period covered by this report that have materially affected, or are reasonably likely to materially affect, our internal control over financial reporting.
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PART II. – OTHER INFORMATION
Item 1. Legal Proceedings
In the ordinary course of our business, we are involved in various legal proceedings. We disclose information about certain pending legal proceedings pursuant to SEC rules and as we otherwise determine to be appropriate. For information on such pending matters, see Part I, Item 3 of our Annual Report on Form 10‑K for the year ended December 31, 2021, updated by Note 10 of the Notes to Condensed Consolidated Financial Statements included in this Quarterly Report on Form 10‑Q.
Item 1A. Risk Factors
There have been no material changes to our risk factors as disclosed in our Annual Report on Form 10-K for the year ended December 31, 2021.
Item 4. Mine Safety Disclosures
Section 1503 of the Dodd-Frank Wall Street Reform and Consumer Protection Act (the “Dodd-Frank Act”) requires domestic mine operators to disclose violations and orders issued under the Federal Mine Safety and Health Act of 1977 (the “Mine Act”) by the federal Mine Safety and Health Administration. We do not act as the owner of any mines but we may act as a mining operator as defined under the Mine Act where we may be an independent contractor performing services or construction of such mine.
For the quarter ended March 31, 2022, we do not have any mine safety violations or other regulatory matters to disclose pursuant to Section 1503(a) of the Dodd-Frank Act and Item 104 of Regulation S-K.
Item 6. Exhibits
| Exhibits | Description | ||||
| 10.1* | |||||
| 10.2* | |||||
| 10.3* | |||||
| 10.4* | |||||
| 10.5* | |||||
| 31.1 | |||||
| 31.2 | |||||
| 32.1 | |||||
| 32.2 | |||||
| 101.INS | XBRL Instance Document – The instance document does not appear in the Interactive Data File because its XBRL tags are embedded within the Inline XBRL document. | ||||
| 101.SCH | XBRL Taxonomy Extension Schema Document. | ||||
| 101.CAL | XBRL Taxonomy Extension Calculation Linkbase Document. | ||||
| 101.LAB | XBRL Taxonomy Extension Label Linkbase Document. | ||||
| 101.PRE | XBRL Taxonomy Extension Presentation Linkbase Document. | ||||
| 101.DEF | XBRL Taxonomy Extension Definition Linkbase Document. | ||||
| 104 | The cover page from the Company’s Quarterly Report on Form 10-Q for the quarter ended March 31, 2022, formatted in Inline XBRL (included as Exhibit 101). | ||||
* Management contract or compensatory plan or arrangement
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SIGNATURE
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.
| Tutor Perini Corporation | ||||||||
| Dated: May 4, 2022 | By: | /s/ Gary G. Smalley | ||||||
| Gary G. Smalley | ||||||||
| Executive Vice President and Chief Financial Officer | ||||||||
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Exhibit 10.1
AMENDED AND RESTATED EMPLOYMENT AGREEMENT
This AMENDED AND RESTATED EMPLOYMENT AGREEMENT (this "Agreement") is effective as of May 23, 2021, by and between Tutor Perini Corporation, a Massachusetts corporation (herein referenced to as "Employer"), and Michael Smithson, an individual ("Executive").
WHEREAS, the Employer wishes to employ Executive as an Executive Vice President, and Executive wishes to serve in such role; and
WHEREAS, to set out the terms and conditions for the employment relationship of Executive with the Employer, on April 16, 2021, the Employer and Executive entered into an Employment Agreement, as amended, which shall now be replaced in its entirety with this Agreement.
NOW, THEREFORE, in consideration of the mutual covenants and agreements set forth herein and for other good and valuable consideration, the receipt and sufficiency of which hereby are acknowledged, the parties hereto agree as follows:
Section 1. Effectiveness. Executive's employment with the Employer shall commence, and this Agreement shall become effective, on or about May 15, 2021 (the "Effective Date").
Section 2. Employment Agreement, On the terms and conditions set forth in this Agreement, the Employer agrees to employ Executive and Executive agrees to be employed by the Employer for the Employment Period set forth in Section 3 and in the position and with the duties set forth in Section 4. Terms used herein with initial capitalization not otherwise defined are defined in Section 26.
Section 3. Term. The term of employment under this Agreement shall commence on the Effective Date and end on the third anniversary thereof (the "Employment Period"). No later than six (6) months prior to the end of the Employment Agreement, the Chief Executive Officer and Executive shall meet to discuss in good faith the extension of the Employment Period or the entering into of a new employment agreement.
Section 4. Position and Duties. During the Employment Period, Executive shall serve as Executive Vice President of the Employer. In such capacity, Executive shall report directly to Ronald N. Tutor, Chief Executive Officer and Chairman of the Board of Director (the "Board") of Employer, and shall oversee the Tutor Perini Building and Specialty Groups. Executive shall devote Executive's reasonable best efforts and full business time to the performance of Executive's duties hereunder and the advancement of the business and affairs of the Employer.
Section 5. Place of Performance. During the Employment Period, Executive shall be based at the Employer's headquarters in Sylmar, California.
Section 6. Compensation and Benefits.
(a) Base Salary. During the Employment Period, the Employer shall pay to Executive a base salary (the "Base Salary") at the rate of $800,000 per calendar year, less applicable deductions, and prorated for any partial year. The Base Salary may be reviewed for increase by the Employer and may be increased in the sole discretion of the Employer; and any such adjusted Base Salary shall constitute the "Base Salary" for purposes of this Agreement. The Base Salary shall be paid in substantially equal installments in accordance with the Employer's regular payroll procedures.
(b) Annual Bonus. Executive shall be paid an annual cash performance bonus (an "Annual Bonus") in respect of each calendar year that ends during the Employment Period, to the extent earned based on performance against objective performance criteria. The
1
performance criteria for any particular calendar year shall be established by the Compensation Committee of the Board or its delegate (the "Compensation Committee") no later than 90 days after the commencement of such calendar year or at such other time as determined by the Compensation Committee. Executive's Annual Bonus for a calendar year shall equal 75% of his Base Salary for that year if target levels of performance for that year (as established by the Compensation Committee when the performance criteria for that year are established) are achieved, with greater or lesser amounts (including zero) paid for performance above and below target (such greater and lesser amounts to be determined by a formula established by the Compensation Committee for that year when it established the targets and performance criteria for that year). The Annual Bonus for the calendar year ending December 31, 2021 shall be prorated based on the number of days Executive is employed hereunder during such calendar year, provided that the Annual Bonus for such calendar year shall in no event be less than the product of (i) $600,000 and (ii) a fraction, the numerator of which is the number of days Executive is employed hereunder in 2021 and the denominator of which is 365. For the calendar year ending December 31, 2022, the Annual Bonus shall equal the sum of (i) the product of (A) $600,000 and (B) a fraction, the numerator of which is the number of days Executive is employed hereunder from January 1, 2022 through the first anniversary of the Effective Date and the denominator of which is 365, and (ii) the Annual Bonus determined under the applicable bonus arrangement for such year multiplied by a fraction, the numerator of which is the number of days Executive is employed hereunder after the first anniversary of the Effective Date through December 31, 2022 and the denominator of which is 365. Executive's Annual Bonus for a calendar year shall be determined by the Compensation Committee after the end of the calendar year and shall be paid to Executive when annual bonuses for that year are paid to other senior executives of the Employer generally, but in no event later than March 15 of the following calendar year.
(c)Signing Bonus. Promptly following the Effective Date, the Employer shall pay Executive a cash signing bonus of $250,000. In addition, subject to Executive's continued employment through the first anniversary of the Effective Date, the Employer shall pay Executive an additional cash signing bonus of $250,000 (collectively with the amount referred to in the preceding sentence, the "Signing Bonus").
(d)Equity Compensation. Effective May 28, 2021, the Executive shall be awarded 100,000 restricted stock units, of which 50,000 will vest on each of the second and third anniversaries of May 28, 2021. The payout of the awards is subject to the Executive's continued employment with the Employer through the vesting dates, unless early vesting occurs under Section 10.
(e)Deferred Compensation. Subject to Executive's continued employment through each of the first, second and third anniversaries of the Effective Date, Executive shall be paid a cash bonus (the "Deferred Compensation") of $200,000 on the first payroll date following each such anniversary (i.e., total potential Deferred Compensation of $600,000).
(f)Perquisites. During the Employment Period, Executive shall be entitled to (i) to participate in all fringe benefits and perquisites made available generally to senior executives of the Employer, such participation to be at levels, and on terms and conditions, that are commensurate with his positions and responsibilities at the Employer, and (ii) to receive such additional fringe benefits and perquisites as the Employer may, in its sole and absolute discretion, from time to time provide. In addition, Executive shall be entitled to receive a one time automobile allowance of $70,000 in 2021 to select a Company-owned vehicle of his choice, along with gas cards thereafter during the Employment Period, and the Employer shall be responsible for maintenance and repairs of such automobile during the Employment Period. During the Employment Period, the Employer will provide Executive with life insurance coverage of $1,500,000 pursuant to the Employer's standard life insurance policies.
2
(g)Vacation: Benefits. During the Employment Period, Executive will be entitled to participate in all standard Employer benefits including vacation days (of which Executive will accrue three (3) weeks per year, prorated for partial years), holidays, pension, retirement, profit sharing, savings, 401(k), income deferral, life insurance, disability insurance, accidental death and dismemberment protection, travel accident insurance, hospitalization, medical, dental, vision and other employee benefit plans, programs and arrangements that may from time to time be made available generally to other senior executives of the Employer, all to the extent Executive is eligible under the terms of such plans, programs and arrangements.
(h)Relocation. The Employer shall pay the reasonable costs Executive incurs in moving his personal and household goods to a location near the Employer's headquarters at any time during the Employment Period and, if Executive does not have a new home in such area when he sells the house he owns as of the Effective Date, the Employer shall provide him rental housing until the earlier of his closing on a new home near the Employer's headquarters or six (6) months following the date of such sale. The Employer does not normally pay realtor and/or broker fees for any employee, but, in the sole discretion of the Employer, the Employer may choose to reimburse Executive for such amounts he incurs in connection with the sale of his house he owns as of the Effective Date.
(i)Clawback of Certain Incentive Compensation. Notwithstanding any other provision herein to the contrary, any "incentive-based compensation" within the meaning of Section 10D of the Securities Exchange Act of 1934, as amended (the "Act") shall be subject to clawback by the Employer in the manner required by the Employer's recoupment policy as in effect from time to time and in the manner required by Section 10D(b)(2) of the Act, as determined by the applicable rules and regulations promulgated thereunder from time to time by the U.S. Securities and Exchange Commission.
Section 7. Expenses. Executive is expected and is authorized to incur reasonable expenses in the performance of his duties hereunder. The Employer shall reimburse Executive for all such expenses reasonably and actually incurred in accordance with policies which may be adopted from time to time by the Employer promptly upon periodic presentation by Executive of an itemized account, including reasonable substantiation of such expenses. Executive shall be reimbursed his reasonable fees and costs, including attorneys' fees, of up to $10,000 in connection with the review, negotiation and execution of this Agreement.
Section 8. Confidentiality and Non-Disclosure Agreement. The Employer and Executive acknowledge and agree that during Executive's employment with the Employer, Executive will have access to and may assist in developing Confidential Information and will occupy a position of trust and confidence with respect to the Employer's affairs and business and the affairs and business of its Affiliates. Executive agrees that the following obligations are necessary to preserve the confidential and proprietary nature of Confidential Information and to protect the Employer and its Affiliates against harmful solicitation of employees and customers, harmful competition and other actions by Executive that would result in serious adverse consequences for the Employer and any of its Affiliates:
(a)Non-Disclosure. During and after Executive's employment with the Employer, Executive will not knowingly use, disclose or transfer any Confidential Information other than as authorized in writing by the Employer or within the scope of Executive's duties with the Employer. Anything herein to the contrary notwithstanding, the provisions of this Section 8(a) shall not apply (i) when disclosure is required by law or by any court, arbitrator, mediator or administrative or legislative body (including any committee thereof) with actual or apparent jurisdiction to order Executive to disclose or make accessible any information; (ii) to the extent necessary in connection with any other litigation, arbitration or mediation involving this Agreement, including, but not limited to, the enforcement of this Agreement; (iii) as to information that becomes generally known to the public or within the relevant trade or industry other than due to Executive's violation of this Section 8(a); or (iv) as to information that is or
3
becomes available to Executive on a non-confidential basis from a source that is entitled to disclose it to Executive.
(b)Materials. Executive will not remove any Confidential Information or any other property of the Employer or any of its Affiliates from the Employer's premises or make copies of such materials except for normal and customary use in the Employer's business. Executive will return to the Employer all Confidential Information and copies thereof and all other property of the Employer or any of its Affiliates at any time upon the request of the Employer and in any event promptly after termination of Executive's employment. Executive agrees to identify and return to the Employer any copies of any Confidential Information within Executive's control after Executive ceases to be employed by the Employer. Anything to the contrary notwithstanding, nothing in this Section 8 shall prevent Executive from retaining a home computer, papers and other materials of a personal nature, including diaries, calendars and information relating to his compensation or relating to reimbursement of expenses, information that he reasonably believes may be needed for tax purposes, and copies of plans, programs and agreements relating to his employment.
(c)Cooperation. During the Employment Period and thereafter Executive will, upon reasonable request and subject to such reasonable condition as Executive may reasonably establish: (a) cooperate with the Employer in connection with any matter that arose during Executive's employment and that relates to the business or operations of the Employer or any of its Affiliates, or of which Executive may have any knowledge or involvement; and (b) consult with and provide information to the Employer and its representatives concerning such matters. Such cooperation shall be rendered at reasonable times and places and in a manner that does not unreasonably interfere with any other employment in which Executive may then be engaged. Nothing in this Agreement shall be construed or interpreted as requiring Executive to provide any testimony or affidavit that is not truthful.
(d)No Solicitation or Hiring of Employees. While employed by the Employer and for one (1) year thereafter, Executive shall not solicit, entice, persuade or induce any individual who is employed by the Employer or any of its Affiliates (or who was so employed within 500 days prior to Executive's or Employer's action to terminate) to refrain from continuing such employment or becoming re-employed by Employer, or to become employed by or enter into contractual relations with any other individual, agency or entity other than the Employer or any of its Affiliates, and Executive shall not hire, directly or indirectly, as an employee, consultant or otherwise, any such person. The provisions of this Subsection 8(d) shall not apply to any employee of the Employer who was (a) hired after the Effective Date, and (b) where Executive was the primary cause in the recruiting, selection and/or hiring of the employee, and (c) where the individual employee was known to Executive prior to the Effective Date.
(e)Conflicting Obligations and Rights. Executive represents and warrants that he is not subject to any agreement with a prior employer that could restrict his performing services for the Employer. Executive agrees to inform the Employer of any apparent conflicts between Executive's work for the Employer and any obligations Executive may have to preserve the confidentiality of another's proprietary information or related materials before using the same on the Employer's behalf. The Employer shall receive such disclosures in confidence and consistent with the objectives of avoiding any conflict of obligations and rights or the appearance of any conflict of interest.
(f)Nondisparagement. Executive agrees not to make negative comments about or otherwise disparage the Employer or its officers, directors, employees, agents or products. The Employer shall instruct its executive officers and the members of the Board not to make negative comments about or otherwise disparage the Employee other than in good faith in connection with Executive's employment by the Employer. The foregoing shall not be violated by truthful statements in response to legal process, Employer governmental testimony or filings,
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or administrative or arbitral proceedings (including, without limitation, depositions in connection with such proceedings).
(g)Defend Trade Secrets Act. Pursuant to The Defend Trade Secrets Act ( 18 USC § l 833(b)), Executive may not be held criminally or civilly liable under any federal or state trade secret law for disclosure of a trade secret: (i) made in confidence to a government official, either directly or indirectly, or to an attorney, solely for the purpose of reporting or investigating a suspected violation of law; and/or (ii) in a complaint or other document filed in a lawsuit or other proceeding, if such filing is made under seal. Additionally, Executive, if suing the Employer for retaliation based on the reporting of a suspected violation of law, may disclose a trade secret to his attorney and use the trade secret information in the court proceeding, so long as any document containing the trade secret is filed under seal and Executive does not disclose the trade secret except pursuant to court order.
(h)(h) Enforcement. Executive acknowledges that in the event of any breach of this Section 8, the business interests of the Employer and its Affiliates will be irreparably injured, the full extent of the damages to the Employer and its Affiliates will be impossible to ascertain, monetary damages will not be an adequate remedy for the Employer and its Affiliates, and the Employer will be entitled to enforce this Agreement by a temporary, preliminary and/or permanent injunction or other equitable relief, without the necessity of posting bond or security, which Executive expressly waives. Executive further agrees that any breach of this Agreement by the Employer prior to the Date of Termination shall not release Executive from compliance with his obligations under this Section 8, so along as the Employer fully complies with Section 9 and Section 11.
Section 9. Termination of Employment.
(a)Permitted Terminations. Executive's employment hereunder may be terminated during the Employment Period under the following circumstances:
(i)Death. The Employment Period and Executive's employment hereunder shall terminate upon Executive's death;
(ii)By the Employer. The Employer may terminate the Employment Period and Executive's employment:
(A)Disability. If Executive has been substantially unable to perform Executives material duties hereunder by reason of illness, physical or mental disability or other similar incapacity, which inability shall continue for 180 consecutive days or 270 days in any 24-month period (a "Disability") (provided, that until such termination, Executive shall continue to receive his compensation and benefits hereunder, reduced by any benefits payable to him under any disability insurance policy or plan applicable to him or her); or
(B)Cause. For Cause or without Cause;
(iii)By Executive. Executive may terminate the Employment Period and his employment for any reason or for no reason.
(b)Termination. Any termination of Executive's employment by the Employer or Executive (other than because of Executive's death) shall be communicated by written Notice of Termination to the other party hereto in accordance with Section 12 hereof. For purposes of this Agreement, a "Notice of Termination" shall mean a notice which shall indicate the specific termination provision in this Agreement relied upon, if any, and shall set forth in reasonable detail the facts and circumstances claimed to provide a basis for termination of Executive's employment under the provision so indicated. Termination of Executive's employment shall take effect on the Date of Termination. Executive agrees, in the event of any dispute under Section 9(a)(ii)(A) as to whether a Disability exists, and if requested by the Employer, to submit to a physical examination by a licensed physician selected by mutual consent of the Employer and Executive (which shall not unreasonably be withheld), the cost of
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such examination to be paid by the Employer. The written medical opinion of such physician shall be conclusive and binding upon each of the parties hereto as to whether a Disability exists and the date when such Disability arose. This Section shall be interpreted and applied so as to comply with the provisions of the Americans with Disabilities Act and any applicable state or local laws.
Section 10. Compensation Upon Termination.
(a)Death. If Executive's employment is terminated during the Employment Period as a result of Executive's death, this Agreement and the Employment Period shall terminate without further notice or any action required by the Employer or Executive's legal representatives. Upon Executive's death during the Employment Period, the Employer shall pay or provide the following: (i) Executive's Base Salary due through the Date of Termination, (ii) all Accrued Benefits, if any, to which Executive is entitled as of the Date of Termination at the time such payments are due, and (iii) all outstanding equity awards held by Executive immediately prior to his termination shall immediately vest (with outstanding options remaining exercisable for the length of their remaining term). Except as set forth herein, the Employer shall have no further obligation to Executive under this Agreement.
(b)Disability. If the Employer terminates Executive's employment during the Employment Period because of Executive's Disability, the Employer shall pay or provide the following: (i) Executive's Base Salary due through the Date of Termination, (ii) all Accrued Benefits, if any, to which Executive is entitled as of the Date of Termination at the time such payments are due, and (iii) all outstanding equity awards held by Executive immediately prior to his termination shall immediately vest (with outstanding options remaining exercisable for the length of their remaining term). Except as set forth herein, the Employer shall have no further obligations to Executive under this Agreement.
(c)Termination by the Employer for Cause or Termination by Executive Without Good Reason. If, during the Employment Period, the Employer terminates Executive's employment for Cause pursuant to Section 9(a)(ii)(B) or Executive terminates his employment without Good Reason, the Employer shall pay to Executive Executive's Base Salary due through the Date of Termination and all Accrued Benefits, if any, to which Executive is entitled as of the Date of Termination, at the time such payments are due, and Executive's rights with respect to equity or equity-related awards shall be governed by the applicable terms of the related plan or award agreement.
(d)Termination by the Employer without Cause or Termination by Executive with Good Reason. If the Employer terminates Executive's employment during the Employment Period other than for Cause or Disability pursuant to Section 9(a) or if Executive terminates his employment hereunder with Good Reason: (i) the Employer shall pay Executive (A) Executive's Base Salary due through the Date of Termination, (B) a Pro Rata Bonus at the time other executives of the Employer receive annual bonuses for the calendar year in which the Date of Termination occurs and in all events by March 15 of the calendar year following the year in which such termination occurs, (C) all Accrued Benefits, if any, to which Executive is entitled as of the Date of Termination, in each case at the time such payments are due, (D) a cash lump sum in an amount equal to one and one-half (1 1/2) times the sum of Executive's Base Salary and target Annual Bonus for the year of termination, payable in a lump sum on the 60th day following the date of termination (ii) all outstanding equity awards held by Executive immediately prior to his termination shall immediately vest (with outstanding options remaining exercisable for the length of their remaining term), and (iii) Executive and his covered dependents shall be entitled to continued participation in benefit plans on the same terms and conditions as applicable immediately prior to Executive's Date of Termination for 18 months; provided that if such continued coverage is not permitted under the terms of such benefit plans, the Employer shall pay Executive an additional amount that, on an after-tax basis, is equal to the cost of comparable coverage obtained by Executive, and (E) a cash lump sum in an amount
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equal to any unpaid portion of the Signing Bonus and the Deferred Compensation payable in a lump sum on the 60th day following the date of termination.
(e)Change in Control. This Section 10(e) shall apply if there is (i) a termination of Executive's employment by Employer without Cause (and not as a result of death or Disability), or a resignation by Executive with Good Reason during the two-year period following a Change in Control or (ii) a termination of Executive's employment by Employer without Cause (and not as a result of death or Disability) prior to a Change in Control, if the termination was at the request of a third party or otherwise arose in anticipation of the Change in Control. If any such termination occurs, Executive shall receive the payments and benefits set forth in Section 10(d), except that in lieu of the lump-sum payment under Section 10(d)(i)(D), Executive shall receive a cash payment in an amount equal to two (2) times the sum of Executive's Base Salary and target Annual Bonus for the year of termination (without taking into account any reductions which would constitute Good Reason), payable in a lump sum on the 60th day following the date of termination.
(f)Liquidated Damages. The parties acknowledge and agree that damages which will result to Executive for termination by the Employer of Executive's employment without Cause or by Executive for Good Cause shall be extremely difficult or impossible to establish or prove, and agree that the amounts payable to Executive under Section 10 shall constitute liquidated damages for any such termination. Executive agrees that, except for such other payments and benefits to which Executive may be entitled as expressly provided by the terms of this Agreement or any other applicable benefit plan, such liquidated damages shall be in lieu of all other claims that Executive may make by reason of any such termination of his employment and that, as a condition to receiving the Severance Payments, Executive will execute a release of claims substantially in the form attached hereto as Exhibit A. Within five business days of the Date of Termination, the Employer shall deliver to Executive the appropriate form of release of claims for Executive to execute. The Severance Payments shall be made within three business days of the expiration of the revocation period without the release being revoked and otherwise as they become due.
(g)No Offset. In the event of termination of his employment, Executive shall be under no obligation to seek other employment and there shall be no offset against amounts due to him on account of any remuneration or benefits provided by any subsequent employment he may obtain. The Employer's obligation to make any payment pursuant to, and otherwise to perform its obligations under, this Agreement shall not be affected by any offset, counterclaim or other right that the Employer or its affiliates may have against him for any reason.
(h)Section 409A.
(i)Notwithstanding the timing of the payments pursuant to Section 10 of this Agreement, to the extent Executive would otherwise be entitled to a payment during the six months beginning on the Date of Termination that would be subject to the additional tax imposed under Section 409A of the Internal Revenue Code of 1986, as amended (the "Code"), (i) the payment will not be made to Executive and instead will be made to an account established to fund such payments (provided that such funds shall be at all times subject to the creditors of the Employer) and (ii) the payment, together with interest thereon at the rate of "prime" plus 1%, will be paid to Executive on the six-month anniversary of Date of Termination. Similarly, to the extent Executive would otherwise be entitled to any benefit (other than a cash payment) during the six months beginning on the Date of Termination that would be subject to the additional tax under Section 409A of the Code, the benefit will be delayed and will begin being provided (together, if applicable, with an adjustment to compensate Executive for the delay, with such adjustment to be determined in the Employer's reasonable good faith discretion) on the six month anniversary of the Date of Termination. The Employer will establish the account, as applicable, no later than ten days after Executive's Date of Termination.
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(ii)It is the intention of the parties that the payments and benefits to which Executive could become entitled in connection with termination of employment under this Agreement comply with Section 409A of the Code. In the event that the parties determine that any such benefit or right does not so comply, they will negotiate reasonably and in good faith to amend the terms of this Agreement such that it complies (in a manner that attempts to minimize the economic impact of such amendment on Executive and the Employer and its affiliates).
(iii)A termination of employment shall not be deemed to have occurred for purposes of any provision of this Agreement providing for the payment of any amounts or benefits upon or following a termination of employment unless such termination is also a "separation from service" within the meaning of Code Section 409A and, for purposes of any such provision of this Agreement, references to a "termination," "termination of employment" or like terms shall mean "separation from service."
(iv)For purposes of compliance with Code Section 409A, (i) all expenses or other reimbursements under this Agreement shall be made on or prior to the last day of the taxable year following the taxable year in which such expenses were incurred by the Executive, (ii) any right to reimbursement or in kind benefits is not subject to liquidation or exchange for another benefit, and (iii) no such reimbursement, expenses eligible for reimbursement, or in-kind benefits provided in any taxable year shall in any way affect the expenses eligible for reimbursement, or in-kind benefits to be provided, in any other taxable year.
(v)For purposes of Code Section 409A, the Executive's right to receive any installment payment pursuant to this Agreement shall be treated as a right to receive a series of separate and distinct payments.
(vi)Whenever a payment under this Agreement specifies a payment period with reference to a number of days (e.g., "payment shall be made within thirty (30) days following the date of termination"), the actual date of payment within the specified period shall be within the sole discretion of the Employer.
Section 11. Indemnification. During the Employment Period and thereafter, the Employer agrees to indemnify and hold Executive and Executive's heirs and representatives harmless, to the maximum extent permitted by law, against any and all damages, costs, liabilities, losses and expenses (including reasonable attorneys' fees) as a result of any claim or proceeding (whether civil, criminal, administrative or investigative), or any threatened claim or proceeding (whether civil, criminal, administrative or investigative), against Executive that arises out of or relates to Executive's service as an officer, director or employee, as the case may be, of the Employer, or Executive's service in any such capacity or similar capacity with an affiliate of the Employer or other entity at the request of the Employer, both prior to and after the Effective Date, and to promptly advance to Executive or Executive's heirs or representatives such expenses upon written request with appropriate documentation of such expense upon receipt of an undertaking by Executive or on Executive's behalf to repay such amount if it shall ultimately be determined that Executive is not entitled to be indemnified by the Employer. During the Employment Period and thereafter, the Employer also shall provide Executive with coverage under its current directors' and officers' liability policy to the same extent that it provides such coverage to its other executive officers. If Executive has any knowledge of any actual or threatened action, suit or proceeding, whether civil, criminal, administrative or investigative, as to which Executive may request indemnity under this provision, Executive will give the Employer prompt written notice thereof; provided that the failure to give such notice shall not affect Executive's right to indemnification. The Employer shall be entitled to assume the defense of any such proceeding and Executive will use reasonable efforts to cooperate with such defense. To the extent that Executive in good faith determines that there is an actual or potential conflict of interest between the Employer and Executive in connection with the defense of a proceeding, Executive shall so notify the Employer and shall be entitled to separate
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representation at the Employer's expense by counsel selected by Executive (provided that the Employer may reasonably object to the selection of counsel within ten (10) business days after notification thereof) which counsel shall cooperate, and coordinate the defense, with the Employer's counsel and minimize the expense of such separate representation to the extent consistent with Executive's separate defense. This Section 11 shall continue in effect after the termination of Executive's employment or the termination of this Agreement.
Section 12. Notices. All notices, demands, requests, or other communications which may be or are required to be given or made by any party to any other party pursuant to this Agreement shall be in writing and shall be hand delivered, mailed by first-class registered or certified mail, return receipt requested, postage prepaid, delivered by overnight air courier, or transmitted by facsimile transmission addressed as follows:
(i)If to the Employer:
Tutor Perini Corporation
15901 Olden Street
Sylmar, California 91342
Attention: Corporate Secretary
Facsimile:
(ii)If to Executive:
Address last shown on the Employer's Records
Each party may designate by notice in writing a new address to which any notice, demand, request or communication may thereafter be so given, served or sent. Each notice, demand, request, or communication that shall be given or made in the manner described above shall be deemed sufficiently given or made for all purposes at such time as it is delivered to the addressee (with the return receipt, the delivery receipt, confirmation of facsimile transmission or the affidavit of messenger being deemed conclusive but not exclusive evidence of such delivery) or at such time as delivery is refused by the addressee upon presentation.
Section 13. Severability. The invalidity or unenforceability of any one or more provisions of this Agreement shall not affect the validity or enforceability of the other provisions of this Agreement, which shall remain in full force and effect.
Section 14. Effect on Other Agreements. The provisions of this Agreement shall supersede the terms of any plan, policy, agreement, award or other arrangement of the Employer (whether entered into before or after the Effective Date) to the extent application of the terms of this Agreement are more favorable to Executive.
Section 15. Survival. It is the express intention and agreement of the parties hereto that the provisions of Section 8, Section 10, Section 11, Section 12, Section 14, Section 16, Section 17, Section 18, Section 20 and Section 24 hereof and this Section 15 shall survive the termination of employment of Executive. In addition, all obligations of the Employer to make payments hereunder shall survive any termination of this Agreement on the terms and conditions set forth herein.
Section 16. Assignment. The rights and obligations of the parties to this Agreement shall not be assignable or delegable, except that (i) in the event of Executive's death, the personal representative or legatees or distributees of Executive's estate, as the case may be, shall have the right to receive any amount owing and unpaid to Executive hereunder and (ii) the rights and obligations of the Employer hereunder shall be assignable and delegable in connection with any subsequent merger, consolidation, sale of all or substantially all of the assets or equity interests of the Employer or similar transaction involving the Employer or a successor corporation.
Section 17. Binding Effect. Subject to any provisions hereof restricting assignment, this Agreement shall be binding upon the parties hereto and shall inure to the benefit of the
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parties and their respective heirs, devisees, executors, administrators, legal representatives, successors and assigns.
Section 18. Amendment: Waiver. This Agreement shall not be amended, altered or modified except by an instrument in writing duly executed by the party against whom enforcement is sought. Neither the waiver by either of the parties hereto of a breach of or a default under any of the provisions of this Agreement, nor the failure of either of the parties, on one or more occasions, to enforce any of the provisions of this Agreement or to exercise any right or privilege hereunder, shall thereafter be construed as a waiver of any subsequent breach or default of a similar nature, or as a waiver of any such provisions, rights or privileges hereunder.
Section 19. Headings. Section and subsection headings contained in this Agreement are inserted for convenience of reference only, shall not be deemed to be a part of this Agreement for any purpose, and shall not in any way define or affect the meaning, construction or scope of any of the provisions hereof.
Section 20. Governing Law; Venue. This Agreement, the rights and obligations of the parties hereto, and any claims or disputes relating thereto, shall be governed by and construed in accordance with the laws of the State of California (but not including any choice of law rule thereof that would cause the laws of another jurisdiction to apply). Except as otherwise provided in Section 8, each of the parties agrees that any dispute between the parties shall be resolved only in the courts of the State of California sitting in Los Angeles, California or the United States District Court for the Central District of California and the appellate courts having jurisdiction of appeals in such courts. In that context, and without limiting the generality of the foregoing (but subject to Section 8), each of the parties hereto irrevocably and unconditionally (a) submits for himself or itself in any proceeding relating to this Agreement or Executive's employment by the Employer or any of its Affiliates, or for the recognition and enforcement of any judgment in respect thereof (a "Proceeding"), to the exclusive jurisdiction of the courts of the State of California sitting in Los Angeles, California, the court of the United States District Court for the Central District of California and appellate courts having jurisdiction of appeals from any of the foregoing, and agrees that all claims in respect of any such Proceeding shall be heard and determined in such California State court or, to the extent peg witted by law, in such federal court; (b) consents that any such Proceeding may and shall be brought in such courts and waives any objection that he or it may now or thereafter have to the venue or jurisdiction of any such Proceeding in any such court or that such Proceeding was brought in an inconvenient court and agrees not to plead or claim the same; (c) waives all right to trial by jury in any Proceeding (whether based on contract, tort or otherwise) arising out of or relating to this Agreement or Executive's employment by the Employer or any of its Affiliates, or his or its performance under or the enforcement of this Agreement; (d) agrees that service of process in any such Proceeding may be effected by mailing a copy of such process by registered or certified mail (or any substantially similar form of mail), postage prepaid, to such party at his or its address as provided in Section 12; and (e) agrees that nothing in this Agreement shall affect the right to effect service of process in any other manner permitted by the laws of the State of California.
Section 21. Representations. Executive represents, warrants and covenants to the Employer that:
(i)On or prior to the date hereof, Executive has informed the Employer of any judgment, order, agreement or arrangement of which he is currently aware and which may affect his right to enter into this Agreement and to fully perform his duties hereunder;
(ii)Executive is knowledgeable and sophisticated as to business matters, and that prior to assenting to the terms of this Agreement or giving the representations and warranties herein, he has been given a reasonable time to review it and has consulted with counsel of his choice;
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(iii)In entering into this Agreement, Executive is not knowingly breaching or violating any provision of any law or regulation; and
(iv)Executive has not knowingly provided to the Employer, nor been requested by the Employer to provide, any confidential or non-public document or information of a former employer that constitutes or contains any protected trade secret, and will not knowingly use any protected trade secrets of any former employer in the course of his employment hereunder.
Section 22. Entire Agreement. This Agreement constitutes the entire agreement between the parties respecting the employment of Executive and supersedes all prior agreements, there being no representations, warranties or commitments except as set forth herein.
Section 23. Counterparts. This Agreement may be executed in two counterparts, each of which shall be an original and all of which shall be deemed to constitute one and the same instrument.
Section 24. Withholding. The Employer may withhold from any benefit payment under this Agreement all federal, state, city or other taxes as shall be required pursuant to any law or governmental regulation or ruling; provided that any withholding obligation arising in connection with the exercise of a stock option or the transfer of stock or other property shall be satisfied through withholding an appropriate number of shares of stock or appropriate amount of such other property.
Section 25. Attorneys' Fees. In any proceeding brought in connection with or arising under or out of this Agreement or the employment relationship between Employer and Executive, including but not limited to the enforcement of this Agreement, both parties shall be responsible for their Attorney fees.
Section 26. Definitions.
"Accrued Benefits" means (i) any compensation deferred by Executive prior to the Date of Termination and not paid by the Employer or otherwise specifically addressed by this Agreement; (ii) any amounts or benefits owing to Executive or to Executive's beneficiaries under the then applicable benefit plans of the Employer; (iii) any amounts owing to Executive for reimbursement of expenses properly incurred by Executive prior to the Date of Termination and which are reimbursable in accordance with Section 7; and (iv) any other benefits or amounts due and owing to Executive under the terms of any plan, program or arrangement of the Employer.
"Affiliate" means any entity controlled by, in control of, or under common control with, the Employer, any Subsidiary, and any Joint Venture Partner of Employer.
"Cause" shall be limited to the following events
(i)Executive's conviction of, or plea of nolo contendere to, a felony (other than in connection with a traffic violation) under any state or federal law;
(ii)Executive's willful and continued failure to substantially perform his essential job functions hereunder after receipt of written notice from the Employer that specifically identifies the manner in which Executive has substantially failed to perform his essential job functions and specifying the manner in which Executive may substantially perform his essential job functions in the future;
(iii)A material act of fraud or willful and material misconduct with respect, in each case, to the Employer, by Executive;
(iv)A willful and material breach of this Agreement; or
(v)A willful and material breach by Executive of any material written policy of the Employer (including, without limitation, any anti-harassment policy).
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For purposes of this provision, no act or failure to act, on the part of Executive, shall be considered "willful" unless it is one, or omitted to be done, by Executive in bad faith or without reasonable belief that Executive's action or omission was in the best interests of the Employer.
Anything herein to the contrary notwithstanding, Executive shall not be terminated for "Cause" hereunder unless
(A) written notice stating the basis for the termination is provided to Executive, and
(B) as to the clauses (ii), (iii), (iv) or (v) of this paragraph, he is given thirty (30) days to cure the neglect or conduct that is the basis of such claim (it being understood that any errors in expense reimbursement may be cured by repayment).
"Change in Control" means the occurrence of one or more of the following events: (1) any "person" (as such term is used in Sections 3(a)(9) and 13(d) of the Act) or "group" (as such term is used in Section 14(d)(2) of the Act) (other than Executive or a group consisting of Executive) becomes a "beneficial owner" (as such term is used in Rule 13d-3 promulgated under the Act) of more than 30% of the Voting Stock of Employer; (2) the majority of the Board consists of individuals other than members of the Board on the Effective Date ("Incumbent Directors"); provided that any person becoming a director subsequent to such date whose election or nomination for election was approved by two-thirds of the directors who then comprised the Incumbent Directors shall be considered to be an Incumbent Director; provided, that, person whose initial assumption of office as a director occurs as a result of either an actual or threatened election contest or other actual or threatened solicitation of proxies or consents by or on behalf of a person other than the Board will not be considered an Incumbent Director; (3) Employer adopts any plan of liquidation providing for the distribution of all or substantially all of its assets; (4) Employer transfers all or substantially all of its assets or business (unless the shareholders of Employer immediately prior to such transaction beneficially own, directly or indirectly, in substantially the same proportion as they owned the Voting Stock of Employer, all of the Voting Stock or other ownership interests of the entity or entities, if any, that succeed to the business of Employer); or (5) any merger, reorganization, consolidation or similar transaction unless, immediately after consummation of such transaction, (i) the shareholders of Employer immediately prior to the transaction hold, directly or indirectly, more than 50% of the Voting Stock of Employer or Employer's ultimate parent company if Employer is a subsidiary of another corporation (there being excluded from the number of shares held by such shareholders, but not from the Voting Stock of the combined company, any shares received by Affiliates of such other company in exchange for stock of such other company) in substantially the same proportion as they owned the Voting Stock of Employer prior to any such transaction and (ii) Incumbent Directors immediately prior to any such transaction continue to constitute a majority of the Board ( or the board of directors of Employer's ultimate parent company if Employer is a subsidiary of another corporation) immediately after consummation of the transaction. For purposes of this Change in Control definition, "Employer" shall include any entity that succeeds to all or substantially all of the business of Employer and "Voting Stock" shall mean securities of any class or classes having general voting power under ordinary circumstances, in the absence of contingencies, to elect the directors of a corporation.
"Confidential Information" means information constituting trade secrets or proprietary information belonging to or regarding the Employer or any of its Affiliates or other confidential financial information, operating budgets, strategic plans or research or estimating methods, personnel data, customer and client contacts, projects or plans, or nonpublic information regarding the Employer or any of its Affiliates. Without limiting the foregoing, "Confidential Information" shall include, but shall not be limited to, any of the following information relating to the Employer:
(i) information regarding the Employer's business proposals,
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(vi)manner of the Employer's operations, and methods of selling or pricing any products or services;
(vii) the identity of persons or entities actually conducting or considering conducting business with the Employer, and any information in any form relating to such persons or entities and their relationship or dealings with the Employer;
(viii) any trade secret or confidential information of or concerning any business operation or business relationship;
(ix) computer databases, software programs and information relating to the nature of the hardware or software and how said hardware or software are used in combination or alone;
(x) information concerning personnel, confidential financial information, customer or customer prospect information, information concerning subscribers, subscriber and customer lists and data, methods and formulas for estimating costs and setting prices, engineering design standards, testing procedures, research results (such as marketing surveys, programming trials or product trials), cost data (such as billing, equipment and programming cost projection models), compensation information and models, business or marketing plans or strategies, deal or business terms, budgets, vendor names, programming operations, product names, information on proposed acquisitions or dispositions, actual performance compared to budgeted performance, long-range plans, internal financial information (including but not limited to financial and operating results for certain offices, divisions, departments, and key market areas that are not disclosed to the public in such form), results of internal analyses, computer programs and programming information, techniques and designs, and trade secrets;
(xi) information concerning the Employer's employees, officers, directors and shareholders; and
(xii) any other trade secret or information of a confidential or proprietary nature. For purposes hereof, "Employer" shall include the Employer and any and all of its Affiliates.
"Date of Termination" means
(i) if Executive's employment is terminated by Executive's death, the date of Executive's death;
(xiii) if Executive's employment is terminated because of Executives Disability pursuant to Section 9{a)(ii)(A). 30 days after Notice of Termination, provided that Executive shall not have returned to the performance of Executive's duties on a full-time basis during such 30-day period;
(xiv) if Executive's employment is terminated by the Employer pursuant to Section 9(a)(ii)(B) or by Executive pursuant to Section 9(a)(ii)(B). the date specified in the Notice of Termination; or
(xv) if Executive's employment is terminated during the Employment Period other than pursuant to Section 9(a), the date on which Notice of Termination is given.
"Good Reason" means, unless otherwise agreed to in writing by Executive,
(i) any adverse change in Executive's titles;
(xvi) any reduction in Executive's Base Salary;
(xvii) a material diminution in Executive's authority, responsibilities or duties;
(xviii) the assignment of duties materially inconsistent with Executive's position or status with the Employer as of the date hereof; or
(xix) any other material breach of the terms of this Agreement; or
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In order to invoke a termination for Good Reason, Executive must notify the Employer of the existence of an event of Good Reason within 90 days of the occurrence of such event, the Employer must fail to cure such event within 30 days of such notice and Executive must terminate his employment within 10 days of the expiration of such period.
"Pro Rata Bonus" means an amount equal to the product of
(i) the Annual Bonus that would have been earned by Executive for the calendar year that includes the Date of Termination if his employment had not terminated and
(xx) a fraction the numerator of which is the number of days that have elapsed as of the Date of Termination during the calendar year that includes the Date of Termination and the denominator of which is 365.
[Signature Page Follows.]
14
IN WITNESS WHEREOF, on the 2nd day of August 2021, the undersigned have duly executed and delivered this Agreement, or have caused this Agreement to be duly executed and delivered on their behalf.
| TUTOR PERINI CORPORATION | |||||
| By: | /s/ Ronald N. Tutor | ||||
| Name: Ronald N. Tutor | |||||
| Title: Chairman and Chief Executive Officer | |||||
| EXECUTIVE | |||||
| By: | /s/ Michael Smithson | ||||
| Name: Michael Smithson | |||||
15
Exhibit 10.2
FORM OF RESTRICTED STOCK UNIT AWARD AGREEMENT
UNDER THE TUTOR PERINI
CORPORATION OMNIBUS INCENTIVE PLAN
Award Date: _______________________________
Name of Grantee: ___________________________
Target Number of Restricted Stock Units: __________
This Restricted Stock Unit Award Agreement (“Agreement”) entered into by and between Tutor Perini Corporation (the “Company”) and the Grantee evidences the grant of the number of Restricted Stock Units (“RSUs”) specified above (the “Award”) under the Tutor Perini Corporation Omnibus Incentive Plan (as the same may be amended, the “Plan”). The Award represents a promise to issue to the Grantee one share of Common Stock, par value $1.00 per share of the Company (the “Stock”) for each RSU, subject to the restrictions and conditions set forth herein and in the Plan.
1. Incorporation of Plan. Notwithstanding anything herein to the contrary, this Agreement shall be subject to and governed by all the terms and conditions of the Plan, including the powers of the Administrator set forth in Section 2(b) of the Plan. Capitalized terms in this Agreement shall have the meaning specified in the Plan, unless a different meaning is specified herein.
2. Acceptance of Award. The Grantee shall have no rights with respect to this Award unless he or she shall have accepted this Award by signing and delivering to the Company a copy of this Award Agreement on or before [•].
3. Restrictions. Prior to the vesting of the RSUs as described in Paragraph 4, the Grantee shall have no rights in the RSUs except as specifically provided herein.
(a) Voting Rights and Dividends. Until such time as the shares of Stock underlying the RSUs are issued to the Grantee, (i) the Grantee shall have no voting rights with respect to the RSUs; and (ii) any dividends or other distributions paid with respect to the Stock shall accrue and shall be converted to additional RSUs based on the closing price of the Stock on any dividend distribution date, provided that such additional RSUs shall be subject to the same restrictions on transferability as are the RSUs with respect to which they were paid over the vesting period, and shall vest and be paid to the Grantee only to the extent (and at the same time) that underlying RSUs vest, and are settled.
(b) Restrictions on Transfer. The RSUs granted pursuant to this Agreement may not be sold, transferred, pledged, assigned, or otherwise alienated or hypothecated and any such attempt to transfer any RSU will not be honored.
1
4. Vesting of Restricted Stock Units.
(a) Vesting. The RSUs shall vest in accordance with the following schedule[, subject to the achievement of the following performance criteria during the applicable performance period].1 Upon the vesting of any RSUs, the restrictions and conditions in Paragraph 3 of this Agreement with respect to such RSUs shall lapse and such RSUs shall become payable to the Grantee in shares of Stock on or as soon as administratively practicable following the applicable vesting date.
Vesting Date(s) | [Target] Shares | [Performance Period | [Performance Criteria | ||||||||
[•] | [•] | [•]] | A] | ||||||||
[A: DESCRIPTION OF PERFORMANCE CRITERIA]
(b) [Except as provided in Paragraph 4(c), the Grantee’s rights to RSUs granted hereunder that are not vested in accordance with the provisions of this Agreement shall automatically be forfeited, without the payment of any consideration therefor, upon the Grantee’s termination of employment, voluntarily or involuntarily, with the Company and its Subsidiaries for any reason (including death).]2
(c) Change in Control. [Notwithstanding anything to the contrary in this Agreement, in the event of a termination of the Grantee’s employment by the Company without “Cause” (and not due to the Grantee’s death or disability) during the two-year period following a Change in Control, any unvested RSUs granted hereunder shall become immediately fully vested and shall be settled as soon as administratively practicable thereafter.]2
[As used herein, “Cause” means any of the following: (a) the Grantee’s material violation of Company policy that causes harm to the Company or its Subsidiaries; (b) the Grantee’s dishonesty, fraud, willful misconduct, breach of fiduciary duty, or conduct that constitutes conflict of interest; (c) the Grantee’s commission of a felony or the Grantee’s conviction (including any plea of guilty or nolo contendere) for any criminal act involving fraud, dishonesty, misappropriation or moral turpitude; (d) the Grantee’s material failure or refusal to perform his or her job duties in accordance with Company policies; or (e) other wrongful conduct by the Grantee of a similar nature and degree.]2
[As used herein, “Change in Control” means the consummation of a transaction or series of related transactions in which either: (a) one Person (or more than one Person acting as a group) acquires beneficial ownership of stock of the Company that, together with the stock held by such Person or group, constitutes more than 50% of the total fair market value or total voting power of the stock of the Company; (b) a majority of the members of the Board are replaced during any twelve-month period by directors whose appointment or election is not endorsed by a majority of the Board before the date of appointment or election; or (c) one Person (or more than one Person acting as a group), acquires (or has acquired during the twelve-month period ending on the date of the most recent acquisition) assets from the Company having a total gross fair market value equal to or more than 50% of the total gross fair market value of all the assets of the Company immediately before such acquisition. As used herein, “Person” means an individual, partnership, corporation, unincorporated organization, joint stock company, limited liability company, trust, joint venture or other legal entity, or a governmental agency or political subdivision thereof.]2
1 The language in brackets to be included in agreements for performance-based RSUs.
2 Post-termination and change in control treatment of award and applicable definitions replaced with terms of individual employment agreements or contracts, where applicable.
2
5. Receipt of Stock upon Vesting. Upon the vesting of the RSUs as provided in Paragraph 4, the Grantee shall receive one share of Stock for each RSU vested on or as soon as administratively practicable after the applicable date on which such RSU vests. Shares of Stock acquired pursuant to this Agreement shall be issued and delivered to the Grantee either in actual stock certificates or by electronic book entry.
6. Tax Withholding. The Grantee shall, not later than the date as of which the receipt of this Award becomes a taxable event for applicable income tax purposes, pay to the Company or make arrangements satisfactory to the Administrator for payment of any Federal, state, and local taxes required by law to be withheld on account of such taxable event. The Grantee may elect to have the required minimum tax withholding obligation satisfied (or such greater amount as may be permitted under applicable accounting standards), in whole or in part, by (i) authorizing the Company to withhold from shares of Stock to be issued, or (ii) transferring to the Company, a number of shares of Stock with an aggregate Fair Market Value that would satisfy the withholding amount due.
7. Miscellaneous.
(a) Notice hereunder shall be given to the Company at its principal place of business. By accepting this Award, the Grantee expressly acknowledges and agrees that the Company may deliver information (including, without limitation, information required to be delivered to the Grantee pursuant to applicable securities laws) to the Grantee regarding the Company and the Subsidiaries, the Plan, the RSUs and shares of Stock via Company web site or other electronic delivery.
(b) This Agreement does not confer upon the Grantee any rights with respect to continuation of employment by the Company or any Subsidiary.
(c) In the event of any conflict between this Agreement and the Plan, the Plan shall control.
(d) This Agreement shall be governed by, and construed in accordance with, the laws of the Commonwealth of Massachusetts, applied without regard to conflict of law principles.
| TUTOR PERINI CORPORATION | ||||||||
| By: | ||||||||
| Name: | ||||||||
| Title: | ||||||||
I acknowledge I received a copy of the Plan. I represent that I have read and am familiar with this Agreement and the Plan's terms. By signing below, I accept the Award subject to all of the terms and provisions of this Agreement and of the Plan, as the Plan may be amended in accordance with its terms. I hereby accept as binding, conclusive, and final all decisions or
3
interpretations of the Administrator concerning any questions arising under the Plan with respect to the Award.
| Dated: | ||||||||
| Grantee’s Signature | ||||||||
[=] | ||||||||
4
Exhibit 10.3
FORM OF RESTRICTED STOCK UNIT AWARD AGREEMENT
UNDER THE TUTOR PERINI
CORPORATION OMNIBUS INCENTIVE PLAN
Award Date: _______________________________
Name of Grantee: ___________________________
Number of Restricted Stock Units: __________
This Restricted Stock Unit Award Agreement (“Agreement”) entered into by and between Tutor Perini Corporation (the “Company”) and the Grantee evidences the grant of the number of Restricted Stock Units (“RSUs”) specified above (the “Award”) under the Tutor Perini Corporation Omnibus Incentive Plan (as the same may be amended, the “Plan”). The Award represents a promise to issue to the Grantee one share of Common Stock, par value $1.00 per share of the Company (the “Stock”) for each RSU, subject to the restrictions and conditions set forth herein and in the Plan.
1. Incorporation of Plan. Notwithstanding anything herein to the contrary, this Agreement shall be subject to and governed by all the terms and conditions of the Plan, including the powers of the Administrator set forth in Section 2(b) of the Plan. Capitalized terms in this Agreement shall have the meaning specified in the Plan, unless a different meaning is specified herein.
2. Acceptance of Award. The Grantee shall have no rights with respect to this Award unless he or she shall have accepted this Award by signing and delivering to the Company a copy of this Award Agreement on or before [•].
3. Restrictions. Prior to the vesting of the RSUs as described in Paragraph 4, the Grantee shall have no rights in the RSUs except as specifically provided herein.
(a) Voting Rights and Dividends. Until such time as the shares of Stock underlying the RSUs are issued to the Grantee, (i) the Grantee shall have no voting rights with respect to the RSUs; and (ii) any dividends or other distributions paid with respect to the Stock shall accrue and shall be converted to additional RSUs based on the closing price of the Stock on any dividend distribution date, provided that such additional RSUs shall be subject to the same restrictions on transferability as are the RSUs with respect to which they were paid over the vesting period, and shall vest and be paid to the Grantee only to the extent (and at the same time) that underlying RSUs vest, and are settled.
(b) Restrictions on Transfer. The RSUs granted pursuant to this Agreement may not be sold, transferred, pledged, assigned, or otherwise alienated or hypothecated and any such attempt to transfer any RSU will not be honored.
1
4. Vesting of Restricted Stock Units.
(a) Vesting. The RSUs shall vest in accordance with the following schedule. Upon the vesting of any RSUs, the restrictions and conditions in Paragraph 3 of this Agreement with respect to such RSUs shall lapse and such RSUs shall become payable to the Grantee in shares of Stock (or wholly or partly in cash as provided in Paragraph 4(b) below) on or as soon as administratively practicable following the applicable vesting date.
Vesting Date(s) | Shares | ||||
[•] | [•] | ||||
(b) Guarantee. If, at the time that the RSUs granted hereunder vest in accordance with the provisions of Paragraph 4(a) or 4(d), the value of Stock is less than $[•] per share, the Company will pay the Grantee any shortfall in shares of Stock (valued based on the Fair Market Value of a share of Stock on such vesting date) or cash at its option.
(c) [Except as provided in Paragraph 4(d), the Grantee’s rights to RSUs granted hereunder that are not vested in accordance with the provisions of this Agreement shall automatically be forfeited, without the payment of any consideration therefor, upon the Grantee’s termination of employment, voluntarily or involuntarily, with the Company and its Subsidiaries for any reason (including death).]1
(d) Change in Control. [Notwithstanding anything to the contrary in this Agreement, in the event of a termination of the Grantee’s employment by the Company without “Cause” (and not due to the Grantee’s death or disability) during the two-year period following a Change in Control any unvested RSUs granted hereunder shall become immediately fully vested and shall be settled as soon as administratively practicable thereafter.]1
[As used herein, “Cause” means any of the following: (a) the Grantee’s material violation of Company policy that causes harm to the Company or its Subsidiaries; (b) the Grantee’s dishonesty, fraud, willful misconduct, breach of fiduciary duty, or conduct that constitutes conflict of interest; (c) the Grantee’s commission of a felony or the Grantee’s conviction (including any plea of guilty or nolo contendere) for any criminal act involving fraud, dishonesty, misappropriation or moral turpitude; (d) the Grantee’s material failure or refusal to perform his or her job duties in accordance with Company policies; or (e) other wrongful conduct by the Grantee of a similar nature and degree.]1
[As used herein, “Change in Control” means the consummation of a transaction or series of related transactions in which either: (a) one Person (or more than one Person acting as a group) acquires beneficial ownership of stock of the Company that, together with the stock held by such Person or group, constitutes more than 50% of the total fair market value or total voting power of the stock of the Company; (b) a majority of the members of the Board are replaced during any twelve-month period by directors whose appointment or election is not endorsed by a majority of the Board before the date of appointment or election; or (c) one Person (or more than one Person acting as a group), acquires (or has acquired during the twelve-month period ending on the date of the most recent acquisition) assets from the Company having a total gross fair market value equal to or more than 50% of the total gross fair market value of all the assets of the Company immediately before such acquisition. As used herein, “Person” means an individual, partnership, corporation, unincorporated organization, joint stock company, limited liability company, trust, joint venture or other legal entity, or a governmental agency or political subdivision thereof.]1
1 Post-termination and change in control treatment of award and applicable definitions replaced with terms of individual employment agreements or contracts, where applicable.
2
5. Receipt of Stock upon Vesting. Upon the vesting of the RSUs as provided in Paragraph 4, the Grantee shall receive one share of Stock for each RSU vested on or as soon as administratively practicable after the applicable date on which such RSU vests. Shares of Stock acquired pursuant to this Agreement shall be issued and delivered to the Grantee either in actual stock certificates or by electronic book entry.
6. Tax Withholding. The Grantee shall, not later than the date as of which the receipt of this Award becomes a taxable event for applicable income tax purposes, pay to the Company or make arrangements satisfactory to the Administrator for payment of any Federal, state, and local taxes required by law to be withheld on account of such taxable event. The Grantee may elect to have the required minimum tax withholding obligation satisfied (or such greater amount as may be permitted under applicable accounting standards), in whole or in part, by (i) authorizing the Company to withhold from shares of Stock to be issued, or (ii) transferring to the Company, a number of shares of Stock with an aggregate Fair Market Value that would satisfy the withholding amount due.
7. Miscellaneous.
(a) Notice hereunder shall be given to the Company at its principal place of business. By accepting this Award, the Grantee expressly acknowledges and agrees that the Company may deliver information (including, without limitation, information required to be delivered to the Grantee pursuant to applicable securities laws) to the Grantee regarding the Company and the Subsidiaries, the Plan, the RSUs and shares of Stock via Company web site or other electronic delivery.
(b) This Agreement does not confer upon the Grantee any rights with respect to continuation of employment by the Company or any Subsidiary.
(c) In the event of any conflict between this Agreement and the Plan, the Plan shall control.
(d) This Agreement shall be governed by, and construed in accordance with, the laws of the Commonwealth of Massachusetts, applied without regard to conflict of law principles.
| TUTOR PERINI CORPORATION | ||||||||
| By: | ||||||||
| Name: | ||||||||
| Title: | ||||||||
I acknowledge I received a copy of the Plan. I represent that I have read and am familiar with this Agreement and the Plan's terms. By signing below, I accept the Award subject to all of the terms and provisions of this Agreement and of the Plan, as the Plan may be amended in accordance with its terms. I hereby accept as binding, conclusive, and final all decisions or
3
interpretations of the Administrator concerning any questions arising under the Plan with respect to the Award.
| Dated: | ||||||||
| Grantee’s Signature | ||||||||
[=] | ||||||||
4
Exhibit 10.4
FORM OF STOCK OPTION AGREEMENT
UNDER THE TUTOR PERINI
CORPORATION OMNIBUS INCENTIVE PLAN
Award Date: _______________________________
Name of Grantee: ___________________________
Number of Option Shares: __________
Exercise Price: ___________________________
This Stock Option Agreement (“Agreement”) entered into by and between Tutor Perini Corporation (the “Company”), and the Grantee evidences the grant to Grantee of a Stock Option (the “Option”) under the Tutor Perini Corporation Omnibus Incentive Plan (as the same may be amended, the “Plan”). Each Option lets the Grantee purchase up to the number of shares of Common Stock, par value $1.00 per share of the Company (the “Stock”) specified above (the “Option Shares”) at the Exercise Price, subject to the restrictions and conditions set forth herein and in the Plan. This Option is not intended to be an Incentive Stock Option.
1. Incorporation of Plan. Notwithstanding anything herein to the contrary, this Agreement shall be subject to and governed by all the terms and conditions of the Plan, including the powers of the Administrator set forth in Section 2(b) of the Plan. Capitalized terms in this Agreement shall have the meaning specified in the Plan, unless a different meaning is specified herein.
2. Acceptance of Award. The Grantee shall have no rights with respect to this Option unless he or she shall have accepted this Agreement by signing and delivering to the Company a copy prior to the close of business on or before [•].
3. Vesting and Expiration.
(a) Vesting. The Option shall vest and become exercisable in accordance with the following schedule[, subject to the achievement of the following performance criteria during the applicable performance period]1.
Vesting Date(s) | [Target] Option Shares | [Performance Period | [Performance Criteria | ||||||||
[•] | [•] | [•]] | A] | ||||||||
1 Bracketed language included in performance-based stock options only.
1
[A DESCRIPTION OF PERFORMANCE CRITERIA]
(b) Option Exercise. Upon vesting, the Grantee may exercise the Option, in whole or in part, by giving written notice specifying the number of Option Shares to be purchased to the Corporate Controller or Secretary of the Company or their authorized designee, on or before the date the Option expires, as described in Paragraphs 3(c) and (d). Pursuant to the Plan, the Exercise Price must be satisfied using one of the following methods: (i) cashless exercise, (ii) cash or check payment, or (iii) delivery of shares of Stock. Upon exercise, the Grantee shall receive the Option Shares either in actual stock certificates or by electronic book entry.
(c) Expiration. Subject to the provisions below, the Grantee’s right to exercise the Option shall expire at the close of business on [•] (the “Expiration Date”).2[ Except as provided for in Paragraph 3(d), if the Grantee’s employment with the Company and its Subsidiaries terminates, any portion of this Option which has yet to become vested and exercisable shall expire as of the date of such termination of employment. The portion of this Option that is vested and exercisable as of the date of such termination of employment will expire upon the earlier of the Expiration Date, or the first to occur of the following:
i. Death. Expires one year after the Grantee’s death.
ii. Disability. Expires on the earlier of (1) one year after the Grantee becomes disabled and (2) 60 days after the Grantee ceases to have a disability.
iii. Termination for Cause. Expires immediately upon termination.
iv. Termination not for Cause (i.e. including voluntary resignation, retirement or any termination of employment not defined in Paragraph 3(c)i through iii above). Expires on the 30th day after the termination of the Grantee’s employment.
As used herein, “Cause” means any of the following: (a) the Grantee’s material violation of Company policy that causes harm to the Company or its Subsidiaries; (b) the Grantee’s dishonesty, fraud, willful misconduct, breach of fiduciary duty, or conduct that constitutes a conflict of interest; (c) the Grantee’s commission of a felony or the Grantee’s conviction (including any plea of guilty or nolo contendere) for any criminal act involving fraud, dishonesty, misappropriation or moral turpitude; (d) the Grantee’s material failure or refusal to perform his or her job duties in accordance with Company policies; or (e) other wrongful conduct by the Grantee of a similar nature and degree.]
(d) Change in Control.3 [Notwithstanding anything to the contrary in this Agreement, in the event of a termination of the Grantee’s employment by the Company without “Cause” (and not due to the Grantee’s death or disability) during the two-year period following a Change in Control and prior to the full vesting of the Option, all Option Shares granted hereunder shall immediately vest in full and become exercisable as of the date of such
2 Post-termination treatment of option and defined terms replaced with terms of individual employment agreements or contracts, where applicable.
3 Change in Control treatment language replaced with terms of individual employment agreements or contracts, where applicable.
2
termination and all Options granted hereunder shall remain exercisable until the earlier of (i) the Expiration Date and (ii) the date that is one year after the Grantee’s termination of employment.
As used herein, “Change in Control” means the consummation of a transaction or series of related transactions in which either: (a) one Person (or more than one Person acting as a group) acquires beneficial ownership of stock of the Company that, together with the stock held by such Person or group, constitutes more than 50% of the total fair market value or total voting power of the stock of the Company; (b) a majority of the members of the Board are replaced during any twelve-month period by directors whose appointment or election is not endorsed by a majority of the Board before the date of appointment or election; or (c) one Person (or more than one Person acting as a group), acquires (or has acquired during the twelve-month period ending on the date of the most recent acquisition) assets from the Company having a total gross fair market value equal to or more than 50% of the total gross fair market value of all the assets of the Company immediately before such acquisition. As used herein, “Person” means an individual, partnership, corporation, unincorporated organization, joint stock company, limited liability company, trust, joint venture or other legal entity, or a governmental agency or political subdivision thereof.]
4. Transferability. This Agreement is personal to the Grantee, is non-assignable and is not transferable in any manner, by operation of law or otherwise, other than by will or the laws of descent and distribution. The Grantee may transfer Vested Options to a member of his/her immediate family, to trusts for the benefit of such family members, or to partnerships in which such family members are the only partners (in each case, only to the extent that the applicable share issuances are covered by the Form S-8 for the applicable plan), provided that the transferee agrees in writing with the Company to be bound by all of the terms and conditions of the Plan and this Agreement.
5. Tax Withholding. The Grantee shall, not later than the date as of which the receipt of this Option becomes a taxable event for applicable income tax purposes, pay to the Company or make arrangements satisfactory to the Administrator for payment of any Federal, state, and local taxes required by law to be withheld on account of such taxable event. The Grantee may elect to have the required minimum tax withholding obligation satisfied (or such greater amount as may be permitted under applicable accounting standards), in whole or in part, by (i) authorizing the Company to withhold from shares of Stock to be issued, or (ii) transferring to the Company, a number of shares of Stock with an aggregate Fair Market Value that would satisfy the withholding amount due.
6. Miscellaneous.
(a) Notice hereunder shall be given to the Company at its principal place of business. By accepting this Option, the Grantee expressly acknowledges and agrees that the Company may deliver information (including, without limitation, information required to be delivered to the Grantee pursuant to applicable securities laws) to the Grantee regarding the Company and the Subsidiaries, the Plan, the Option and shares of Stock via Company web site or other electronic delivery.
(b) This Agreement does not confer upon the Grantee any rights with respect to continuation of employment by the Company or any Subsidiary.
3
(c) The Grantee shall have the rights of a stockholder only as to shares of Stock actually delivered (including via book entry) upon the exercise of this Option.
(d) In the event of any conflict between this Agreement and the Plan, the Plan shall control.
(e) This Agreement shall be governed by, and construed in accordance with, the laws of the Commonwealth of Massachusetts, applied without regard to conflict of law principles.
| TUTOR PERINI CORPORATION | ||||||||
| By: | ||||||||
| Name: | ||||||||
| Title: | ||||||||
I acknowledge I received a copy of the Plan. I represent that I have read and am familiar with this Agreement and the Plan's terms. By signing below, I accept the Option subject to all of the terms and provisions of this Agreement and of the Plan, as the Plan may be amended in accordance with its terms. I hereby accept as binding, conclusive, and final all decisions or interpretations of the Administrator concerning any questions arising under the Plan with respect to each Option.
| Dated: | ||||||||
| Grantee’s Signature | ||||||||
[=] | ||||||||
4
Exhibit 10.5
FORM OF CASH-SETTLED PERFORMANCE STOCK UNIT AWARD AGREEMENT
UNDER THE TUTOR PERINI
CORPORATION OMNIBUS INCENTIVE PLAN
Award Date: _______________________________
Name of Grantee: ___________________________
Target Number of Cash-Settled Performance Stock Units: __________
Performance Metric: ___________________________
THIS AGREEMENT (this “Agreement”) entered into by and between Tutor Perini Corporation (the “Company”) and the Grantee evidences the grant of the target number of Cash-Settled Performance Stock Units (“CPSUs”) specified above (the “Award”) under the Tutor Perini Corporation Omnibus Incentive Plan (as the same may be amended, the “Plan”).
1. Incorporation of Plan. Notwithstanding anything herein to the contrary, this Agreement shall be subject to and governed by all the terms and conditions of the Plan, including the powers of the Administrator set forth in Section 2(b) of the Plan. Capitalized terms in this Agreement shall have the meaning specified in the Plan, unless a different meaning is specified herein.
2. Acceptance of Award. The Grantee shall have no rights with respect to this Award unless he or she shall have accepted this Award by signing and delivering to the Company a copy of this Award Agreement on or before [•].
3. Grant of Cash-Settled Performance Stock Units. Subject to the restrictions, limitations, terms and conditions specified in the Plan and in this Agreement, the Company hereby grants this Award to the Grantee as of the Award Date listed above. The target number of CPSUs granted are used to calculate the final number of CPSUs that become earned and vest hereunder, if any, and will be used solely to calculate the cash payout, if any, to the Grantee in accordance with this Agreement. The CPSUs do not create any separate rights or entitlements. A single CPSU represents the right to receive the cash value of one share of Stock, subject to the achievement of certain performance criteria as detailed in Section 4 below.
4. Performance Criteria; Vesting.
(a) The CPSUs shall vest in accordance with the following schedule, subject to the achievement of the following performance criteria during the applicable performance period. In accordance with the Plan, the Administrator shall determine and certify in writing the extent to which the performance criteria was achieved and the percentage of the target number of CPSUs that has been vested and earned. Upon the vesting of any CPSUs, such CPSUs shall become payable to the Grantee in cash, as detailed in Section 5 below.
1
Vesting Date | Target Units | Performance Period | ||||||
[•] | [•] | [•]-[•] | ||||||
[DESCRIPTION OF PERFORMANCE CRITERIA]
(b) [Except as provided in Paragraph 4(c), the Grantee’s rights to CPSUs granted hereunder that are not vested in accordance with the provisions of this Agreement shall automatically be forfeited, without the payment of any consideration therefor, upon the Grantee’s termination of employment, voluntarily or involuntarily, with the Company and its Subsidiaries for any reason (including death).
(c) Change in Control. Notwithstanding anything to the contrary in this Agreement, in the event of a termination of the Grantee’s employment by the Company without “Cause” (and not due to the Grantee’s death or disability) during the two-year period following a Change in Control, all outstanding CPSUs under this Agreement shall immediately vest based on target performance, and shall be settled as soon as administratively practicable thereafter.
As used herein, “Cause” means any of the following: (a) the Grantee’s material violation of Company policy that causes harm to the Company or its Subsidiaries; (b) the Grantee’s dishonesty, fraud, willful misconduct, breach of fiduciary duty, or conduct that constitutes conflict of interest; (c) the Grantee’s commission of a felony or the Grantee’s conviction (including any plea of guilty or nolo contendere) for any criminal act involving fraud, dishonesty, misappropriation or moral turpitude; (d) the Grantee’s material failure or refusal to perform his or her job duties in accordance with Company policies; or (e) other wrongful conduct by the Grantee of a similar nature and degree.
As used herein, “Change in Control” means the consummation of a transaction or series of related transactions in which either: (a) one Person (or more than one Person acting as a group) acquires beneficial ownership of stock of the Company that, together with the stock held by such Person or group, constitutes more than 50% of the total fair market value or total voting power of the stock of the Company; (b) a majority of the members of the Board are replaced during any twelve-month period by directors whose appointment or election is not endorsed by a majority of the Board before the date of appointment or election; or (c) one Person (or more than one Person acting as a group), acquires (or has acquired during the twelve-month period ending on the date of the most recent acquisition) assets from the Company having a total gross fair market value equal to or more than 50% of the total gross fair market value of all the assets of the Company immediately before such acquisition. As used herein, “Person” means an individual, partnership, corporation, unincorporated organization, joint stock company, limited liability company, trust, joint venture or other legal entity, or a governmental agency or political subdivision thereof.]1
5. Settlement. Upon the vesting of the CPSUs as provided in Paragraph 4, the Grantee shall become entitled to receive the total number of CPSUs determined under Section 4. Each CPSU earned, if any, will be paid in a lump sum cash payment, in aggregate, equal to the Fair Market Value of one share of the Company’s Stock as of the applicable vesting date. The lump sum cash payment shall be paid to the Grantee as soon as administratively practicable after the applicable vesting date, and in all events on or before [•].
1 Post-termination and change in control treatment of award and applicable definitions replaced with terms of individual employment agreements or contracts, where applicable.
2
6. Tax Withholding. Upon vesting and subsequent settlement in cash, the full payout amount will be reported by the Company as employment income to the Grantee. The Company will be required to withhold tax and other amounts required by federal, state or local statute, ordinance, rule or regulation in respect of this income. Such withholding will reduce the cash payment made, in settlement of the CPSUs, to the Grantee.
7. Rights as Stockholder. The Grantee shall have no rights as a stockholder of the Company and no voting rights with respect to the CPSUs.
8. Non-transferability. The CPSUs granted pursuant to this Agreement may not be sold, transferred, pledged, assigned, or otherwise alienated or hypothecated and any such attempt to transfer any CPSU will not be honored.
9. Treatment of Dividends. Any dividends or other distributions paid with respect to the Stock prior to the Vesting Date of the CPSUs shall accrue and shall be converted to additional target CPSUs based on the closing price of the Stock on any dividend distribution date, provided that such additional CPSUs shall be subject to the same vesting and performance conditions as are the CPSUs with respect to which they were paid, and shall become earned and vest and be paid to the Grantee only to the extent (and at the same time) that underlying CPSUs vest, and are settled.
10. Miscellaneous.
(a) By accepting this Award, the Grantee expressly acknowledges and agrees that the Company may deliver information (including, without limitation, information required to be delivered to the Grantee pursuant to applicable securities laws) to the Grantee regarding the Company and the Subsidiaries, the Plan, the CPSUs and shares of Stock via Company web site or other electronic delivery.
(b) This Agreement does not confer upon the Grantee any rights with respect to continuation of employment by the Company or any Subsidiary.
(c) In the event of any conflict between this Agreement and the Plan, the Plan shall control.
(d) This Agreement shall be governed by, and construed in accordance with, the laws of the Commonwealth of Massachusetts, applied without regard to conflict of law principles.
| TUTOR PERINI CORPORATION | ||||||||
| By: | ||||||||
Name: | ||||||||
Title: | ||||||||
3
I acknowledge I received a copy of the Plan. I represent that I have read and am familiar with this Agreement and the Plan's terms. By signing below, I accept the Award subject to all of the terms and provisions of this Agreement and of the Plan, as the Plan may be amended in accordance with its terms. I hereby accept as binding, conclusive, and final all decisions or interpretations of the Administrator concerning any questions arising under the Plan with respect to the Award.
| Dated: | ___________________________ | |||||||
| Grantee’s Signature | ||||||||
[=] | ||||||||
4
Exhibit 31.1
CERTIFICATION OF PRINCIPAL EXECUTIVE OFFICER PURSUANT TO SECTION 302
OF THE SARBANES-OXLEY ACT OF 2002
I, Ronald N. Tutor, certify that:
1.I have reviewed this Quarterly Report on Form 10-Q of Tutor Perini Corporation (the “registrant”);
2.Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;
3.Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report;
4.The registrant’s other certifying officer and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and have:
a)Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared;
b)Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles;
c)Evaluated the effectiveness of the registrant’s disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and
d)Disclosed in this report any change in the registrant’s internal control over financial reporting that occurred during the registrant’s most recent fiscal quarter (the registrant’s fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrant’s internal control over financial reporting; and
5.The registrant’s other certifying officer and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant’s auditors and the audit committee of the registrant’s board of directors (or persons performing the equivalent functions):
a)All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant’s ability to record, process, summarize and report financial information; and
b)Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant’s internal control over financial reporting.
| Date: May 4, 2022 | /s/ Ronald N. Tutor | ||||
| Ronald N. Tutor | |||||
| Chairman and Chief Executive Officer | |||||
Exhibit 31.2
CERTIFICATION OF PRINCIPAL FINANCIAL OFFICER PURSUANT TO SECTION 302
OF THE SARBANES-OXLEY ACT OF 2002
I, Gary G. Smalley, certify that:
1.I have reviewed this Quarterly Report on Form 10-Q of Tutor Perini Corporation (the “registrant”);
2.Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;
3.Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report;
4.The registrant’s other certifying officer and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and have:
a)Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared;
b)Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles;
c)Evaluated the effectiveness of the registrant’s disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and
d)Disclosed in this report any change in the registrant’s internal control over financial reporting that occurred during the registrant’s most recent fiscal quarter (the registrant’s fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrant’s internal control over financial reporting; and
5.The registrant’s other certifying officer and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant’s auditors and the audit committee of the registrant’s board of directors (or persons performing the equivalent functions):
a)All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant’s ability to record, process, summarize and report financial information; and
b)Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant’s internal control over financial reporting.
| Date: May 4, 2022 | /s/ Gary G. Smalley | ||||
| Gary G. Smalley | |||||
| Executive Vice President and Chief Financial Officer | |||||
Exhibit 32.1
CERTIFICATION OF PRINCIPAL EXECUTIVE OFFICER 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 of Tutor Perini Corporation (the “Company”) on Form 10-Q for the period ended March 31, 2022 as filed with the Securities and Exchange Commission on the date hereof (the “Report”), I, Ronald N. Tutor, Chairman and Chief Executive Officer 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:
(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.
| Date: May 4, 2022 | /s/ Ronald N. Tutor | ||||
| Ronald N. Tutor | |||||
| Chairman and Chief Executive Officer | |||||
A signed original of this written statement required by Section 906 has been provided to Tutor Perini Corporation and will be retained by Tutor Perini Corporation and furnished to the Securities and Exchange Commission or its staff upon request.
Exhibit 32.2
CERTIFICATION OF PRINCIPAL FINANCIAL OFFICER 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 of Tutor Perini Corporation (the “Company”) on Form 10-Q for the period ended March 31, 2022 as filed with the Securities and Exchange Commission on the date hereof (the “Report”), I, Gary G. Smalley, Executive Vice President and Chief Financial Officer 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:
(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.
| Date: May 4, 2022 | /s/ Gary G. Smalley | ||||
| Gary G. Smalley | |||||
| Executive Vice President and Chief Financial Officer | |||||
A signed original of this written statement required by Section 906 has been provided to Tutor Perini Corporation and will be retained by Tutor Perini Corporation and furnished to the Securities and Exchange Commission or its staff upon request.