Tutor Perini Corp 10-Q for FY2023 Q2
Tutor Perini Corp (TPC)
10-Q
2023-08-04
For: 2023-06-30
View Original
Added on
April 10, 2026
About this 10-Q
Tutor Perini Corp filed this 10-Q on August 4, 2023, covering the quarter ended June 30, 2023 (FY2023 Q2).
Headline figures
Quarter ended June 30, 2023, as reported in this filing, compared with the same period a year earlier where the filing states it.
- Revenue
- $1.02B
- up 18.7% from $861.03M a year earlier
- Net loss
- $37.53M
- compared with a net loss of $63M a year earlier
- Diluted EPS
- -$0.72
- compared with -$1.23 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 July 27, 2023 was 51,975,785 .
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 June 30, | Six Months Ended June 30, | ||||||||||||||||||||||
| (in thousands, except per common share amounts) | 2023 | 2022 | 2023 | 2022 | |||||||||||||||||||
| REVENUE | $ | $ | $ | $ | |||||||||||||||||||
| COST OF OPERATIONS | ( | ( | ( | ( | |||||||||||||||||||
| GROSS PROFIT (LOSS) | ( | ||||||||||||||||||||||
| General and administrative expenses | ( | ( | ( | ( | |||||||||||||||||||
| INCOME (LOSS) FROM CONSTRUCTION OPERATIONS | ( | ( | ( | ||||||||||||||||||||
| Other income, net | |||||||||||||||||||||||
| Interest expense | ( | ( | ( | ( | |||||||||||||||||||
| LOSS BEFORE INCOME TAXES | ( | ( | ( | ( | |||||||||||||||||||
| Income tax (expense) benefit | ( | ||||||||||||||||||||||
| NET LOSS | ( | ( | ( | ( | |||||||||||||||||||
| LESS: NET INCOME ATTRIBUTABLE TO NONCONTROLLING INTERESTS | |||||||||||||||||||||||
| NET LOSS ATTRIBUTABLE TO TUTOR PERINI CORPORATION | $ | ( | $ | ( | $ | ( | $ | ( | |||||||||||||||
| BASIC LOSS PER COMMON SHARE | $ | ( | $ | ( | $ | ( | $ | ( | |||||||||||||||
| DILUTED 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 June 30, | Six Months Ended June 30, | ||||||||||||||||||||||
| (in thousands) | 2023 | 2022 | 2023 | 2022 | |||||||||||||||||||
| NET LOSS | $ | ( | $ | ( | $ | ( | $ | ( | |||||||||||||||
| OTHER COMPREHENSIVE INCOME (LOSS), NET OF TAX: | |||||||||||||||||||||||
| Defined benefit pension plan adjustments | |||||||||||||||||||||||
| Foreign currency translation adjustments | ( | ( | |||||||||||||||||||||
| Unrealized gain (loss) in fair value of investments | ( | ( | ( | ||||||||||||||||||||
| TOTAL OTHER COMPREHENSIVE INCOME (LOSS), NET OF TAX | ( | ( | |||||||||||||||||||||
| COMPREHENSIVE LOSS | ( | ( | ( | ( | |||||||||||||||||||
| LESS: COMPREHENSIVE INCOME ATTRIBUTABLE TO NONCONTROLLING INTERESTS | |||||||||||||||||||||||
| COMPREHENSIVE 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 June 30, 2023 | As of December 31, 2022 | |||||||||
| 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 $ | |||||||||||
| 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
| Six Months Ended June 30, | |||||||||||
| (in thousands) | 2023 | 2022 | |||||||||
| Cash Flows from Operating Activities: | |||||||||||
Net loss | $ | ( | $ | ( | |||||||
| Adjustments to reconcile net loss to net cash provided by operating activities: | |||||||||||
| Depreciation | |||||||||||
| Amortization of intangible assets | |||||||||||
| Share-based compensation expense | |||||||||||
| Change in debt discounts and deferred debt issuance costs | |||||||||||
| Deferred income taxes | ( | ( | |||||||||
| Gain on sale of property and equipment | ( | ( | |||||||||
| Changes in other components of working capital | |||||||||||
| Other long-term liabilities | ( | ||||||||||
| Other, net | ( | ||||||||||
| NET CASH PROVIDED BY 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 | |||||||||||
| Debt issuance, extinguishment and modification costs | ( | ||||||||||
| NET CASH USED IN FINANCING ACTIVITIES | ( | ( | |||||||||
| Net increase 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, 2022. The results of operations for the three and six months ended June 30, 2023 may not be indicative of the results that will be achieved for the full year ending December 31, 2023.
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 June 30, 2023 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 and six months ended June 30, 2023 and 2022.
| Three Months Ended June 30, | Six Months Ended June 30, | ||||||||||||||||
| (in thousands) | 2023 | 2022 | 2023 | 2022 | |||||||||||||
| Civil segment revenue by end market: | |||||||||||||||||
| Mass transit (includes certain transportation and tunneling projects) | $ | $ | $ | $ | |||||||||||||
| Military facilities | |||||||||||||||||
| Bridges | |||||||||||||||||
| Commercial and industrial sites | |||||||||||||||||
| Other | |||||||||||||||||
| Total Civil segment revenue | $ | $ | $ | $ | |||||||||||||
| Three Months Ended June 30, | Six Months Ended June 30, | ||||||||||||||||
| (in thousands) | 2023 | 2022 | 2023 | 2022 | |||||||||||||
| Building segment revenue by end market: | |||||||||||||||||
| Municipal and government | $ | $ | $ | $ | |||||||||||||
| Health care facilities | |||||||||||||||||
| Education facilities | |||||||||||||||||
| Mass transit (includes transportation projects) | |||||||||||||||||
| Commercial and industrial facilities | |||||||||||||||||
| Hospitality and gaming | |||||||||||||||||
| Sports and entertainment | |||||||||||||||||
Other(a) | ( | ||||||||||||||||
| Total Building segment revenue | $ | $ | $ | $ | |||||||||||||
7
TUTOR PERINI CORPORATION AND SUBSIDIARIES
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
UNAUDITED
| Three Months Ended June 30, | Six Months Ended June 30, | ||||||||||||||||
| (in thousands) | 2023 | 2022 | 2023 | 2022 | |||||||||||||
| Specialty Contractors segment revenue by end market: | |||||||||||||||||
| Commercial and industrial facilities | $ | $ | $ | $ | |||||||||||||
| Multi-unit residential | |||||||||||||||||
| Mass transit (includes certain transportation and tunneling projects) | |||||||||||||||||
| Water | |||||||||||||||||
| Federal government | |||||||||||||||||
| Health care facilities | |||||||||||||||||
Other(a) | |||||||||||||||||
| Total Specialty Contractors segment revenue | $ | $ | $ | $ | |||||||||||||
| Three Months Ended June 30, 2023 | Three Months Ended June 30, 2022 | ||||||||||||||||||||||||||||
| (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 | $ | $ | $ | $ | $ | $ | $ | $ | |||||||||||||||||||||
| Six Months Ended June 30, 2023 | Six Months Ended June 30, 2022 | ||||||||||||||||||||||||||||
| (in thousands) | Civil | Building | Specialty Contractors | Total | Civil | Building | Specialty Contractors | Total | |||||||||||||||||||||
| Revenue by customer type: | |||||||||||||||||||||||||||||
| State and local agencies | $ | $ | $ | $ | $ | $ | $ | $ | |||||||||||||||||||||
| Federal agencies | ( | ||||||||||||||||||||||||||||
Private owners(a) | |||||||||||||||||||||||||||||
| Total revenue | $ | $ | $ | $ | $ | $ | $ | $ | |||||||||||||||||||||
| Three Months Ended June 30, 2023 | Three Months Ended June 30, 2022 | ||||||||||||||||||||||||||||
| (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 | $ | $ | $ | $ | $ | $ | $ | $ | |||||||||||||||||||||
8
TUTOR PERINI CORPORATION AND SUBSIDIARIES
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
UNAUDITED
| Six Months Ended June 30, 2023 | Six Months Ended June 30, 2022 | ||||||||||||||||||||||||||||
| (in thousands) | Civil | Building | Specialty Contractors | Total | Civil | Building | Specialty Contractors | Total | |||||||||||||||||||||
| Revenue by contract type: | |||||||||||||||||||||||||||||
| Fixed price | $ | $ | $ | $ | $ | $ | $ | $ | |||||||||||||||||||||
Guaranteed maximum price(a) | ( | ||||||||||||||||||||||||||||
| Unit price | |||||||||||||||||||||||||||||
| Cost plus fee and other | ( | ||||||||||||||||||||||||||||
| Total revenue | $ | $ | $ | $ | $ | $ | $ | $ | |||||||||||||||||||||
____________________________________________________________________________________________________
(a)The six-month period ended June 30, 2023 includes the negative impact of a non-cash charge of $83.6 million in the first quarter of 2023 that resulted from an adverse legal ruling (of which $72.2 million impacted the Building segment and $11.4 million impacted the Specialty Contractors segment). Refer to Note 17, Business Segments, for additional details.
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 and six months ended June 30, 2023 related to performance obligations satisfied (or partially satisfied) in prior periods by $3.1 million and $108.3 million, respectively. Refer to Note 17, Business Segments, for additional details on significant adjustments. Revenue was negatively impacted during the three and six months ended June 30, 2022 related to performance obligations satisfied (or partially satisfied) in prior periods by $63.6 million and $110.3 million, respectively.
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 June 30, 2023, the aggregate amounts of the transaction prices allocated to the remaining performance obligations of the Company’s construction contracts were $4.6 billion, $2.4 billion and $1.2 billion for the Civil, Building and Specialty Contractors segments, respectively. As of June 30, 2022, the aggregate amounts of the transaction prices allocated to the remaining performance obligations of the Company’s construction contracts were $4.9 billion, $2.2 billion and $1.3 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 .
(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 June 30, 2023 | As of December 31, 2022 | ||||||
| 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 | $ | $ | ||||||
9
TUTOR PERINI CORPORATION AND SUBSIDIARIES
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
UNAUDITED
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 June 30, 2023, the amount of retention receivable estimated by management to be collected beyond one year is approximately 58 % 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. The amount of costs and estimated earnings in excess of billings as of June 30, 2023 estimated by management to be collected beyond one year is approximately $625.8 million.
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 and six months ended June 30, 2023, $9.0 million and $19.8 million, respectively, of previously capitalized contract costs were amortized and recognized as expense on the related contracts. During the three and six months ended June 30, 2022, $19.0 million and $31.6 million, respectively, of previously capitalized contract costs were amortized and recognized as expense on the related contracts.
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 June 30, 2023 | As of December 31, 2022 | ||||||
| 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 June 30, 2023, the amount of retention payable estimated by management to be remitted beyond one year is approximately 42 % 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 and six months ended June 30, 2023 and
10
TUTOR PERINI CORPORATION AND SUBSIDIARIES
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
UNAUDITED
(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 June 30, 2023 | As of December 31, 2022 | ||||||
| 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 primarily 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
Basic earnings per common share (“EPS”) and diluted EPS are calculated by dividing net income (loss) attributable to Tutor Perini Corporation by the following: for basic EPS, the weighted-average number of common shares outstanding during the period; and for diluted EPS, the sum of the weighted-average number of both outstanding common shares and potentially dilutive securities, which for the Company can include restricted stock units (“RSUs”) and unexercised stock options. The Company calculates the effect of the potentially dilutive RSUs and stock options using the treasury stock method.
| Three Months Ended June 30, | Six Months Ended June 30, | ||||||||||||||||
| (in thousands, except per common share data) | 2023 | 2022 | 2023 | 2022 | |||||||||||||
| Net loss attributable to Tutor Perini Corporation | $ | ( | $ | ( | $ | ( | $ | ( | |||||||||
| Weighted-average common shares outstanding, basic | |||||||||||||||||
| Effect of dilutive RSUs and stock options | |||||||||||||||||
| Weighted-average common shares outstanding, diluted | |||||||||||||||||
| Net loss attributable to Tutor Perini Corporation per common share: | |||||||||||||||||
| Basic | $ | ( | $ | ( | $ | ( | $ | ( | |||||||||
| Diluted | $ | ( | $ | ( | $ | ( | $ | ( | |||||||||
| Anti-dilutive securities not included above | |||||||||||||||||
For both the three and six months ended June 30, 2023 and 2022, all outstanding RSUs 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 periods.
11
TUTOR PERINI CORPORATION AND SUBSIDIARIES
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
UNAUDITED
(6)Income Taxes
The Company recognized income tax expense of $0.2 million for the three months ended June 30, 2023 and an income tax benefit of $47.9 million for the six months ended June 30, 2023. The effective income tax rate was (1.2 )% and 42.2 % for the three and six months ended June 30, 2023, respectively. The effective income tax rate for the three months ended June 30, 2023 was lower than the 21% federal statutory rate primarily due to the impact of a cumulative catch-up adjustment associated with the change in the Company’s projected 2023 effective tax rate that resulted from the revision of the Company’s forecast. The effective income tax rates for both periods were impacted by relatively large tax benefits generated against a forecasted pre-tax loss for the year, which magnified the impact these tax benefits had on the effective income tax rate. In periods with pre-tax losses, tax benefits generated during the period increase the effective income tax rate (and, thus, the income tax benefit to the Company) rather than decreasing the effective rate, as in periods with pre-tax income. The tax benefits that caused a higher effective tax rate were primarily the earnings attributable to noncontrolling interests (for which income taxes are not the responsibility of the Company) and state income taxes (net of the federal tax benefit), partially offset by non-deductible expenses.
For the three and six months ended June 30, 2022, the Company recognized an income tax benefit of $43.7 million and $47.6 million, respectively, with an effective income tax rate of 41.3 % and 37.1 %, respectively. The effective income tax rates for both periods were higher than the 21% federal statutory rate primarily due to tax benefits generated against a relatively low forecasted pre-tax loss for the year, which magnified the impact of tax benefits on the effective income tax rate. In periods with pre-tax losses, tax benefits generated during the period increase the effective income tax rate (and, thus, the income tax benefit to the Company) rather than decreasing the effective rate, as in periods with pre-tax income. The tax benefits in the respective periods that caused a higher tax rate were primarily the earnings attributable to noncontrolling interests (for which income taxes are not the responsibility of the Company) and state income tax benefits (net of the federal tax benefit).
(7)Goodwill and Intangible Assets
Goodwill
The following table presents the changes in the carrying amount of goodwill since its inception through June 30, 2023:
| (in thousands) | Civil | Building | Specialty Contractors | Total | ||||||||||
| Gross goodwill as of December 31, 2022 | $ | $ | $ | $ | ||||||||||
| Accumulated impairment as of December 31, 2022 | ( | ( | ( | ( | ||||||||||
| Goodwill as of December 31, 2022 | ||||||||||||||
| Current year activity | ||||||||||||||
| Goodwill as of June 30, 2023 | $ | $ | $ | $ | ||||||||||
The Company performed its annual impairment test in the fourth quarter of 2022 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 events and circumstances include, but are not limited to, changes in the overall financial performance of the Civil reporting unit, as well as other quantitative and qualitative factors which could indicate potential triggering events for possible impairment.
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TUTOR PERINI CORPORATION AND SUBSIDIARIES
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
UNAUDITED
Intangible Assets
Intangible assets consist of the following:
| As of June 30, 2023 | 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 | ( | ( | N/A | |||||||||||||||||
| Construction contract backlog | ( | — | N/A | |||||||||||||||||
| Total | $ | $ | ( | $ | ( | $ | ||||||||||||||
| As of December 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 | ( | ( | N/A | |||||||||||||||||
| Construction contract backlog | ( | — | N/A | |||||||||||||||||
| Total | $ | $ | ( | $ | ( | $ | ||||||||||||||
Amortization expense related to amortizable intangible assets for the three and six months ended June 30, 2023 was $0.6 million and $1.1 million, respectively. Amortization expense related to amortizable intangible assets for the three and six months ended June 30, 2022 was $4.7 million and $10.2 million, respectively. As of June 30, 2023, future amortization expense related to amortizable intangible assets will be approximately $1.1 million for the remainder of 2023, $2.2 6.9 million thereafter.
The Company performed its annual impairment test for non-amortizable trade names during the fourth quarter of 2022. Based on this assessment, the Company concluded that its non-amortizable trade names were not 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 indicate impairment of its non-amortizable trade names. Other amortizable intangible assets are reviewed for impairment whenever circumstances indicate that future cash flows generated by the assets might be less than the assets’ net carrying value. The Company had no
13
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 June 30, 2023 | As of December 31, 2022 | ||||||
| 2017 Senior Notes | $ | $ | ||||||
| Term Loan B | ||||||||
| 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 June 30, 2023 and December 31, 2022:
| As of June 30, 2023 | As of December 31, 2022 | ||||||||||||||||||||||
| (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 Revolver were $1.8 million and $1.6 million as of June 30, 2023 and December 31, 2022, 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 “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 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 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 certain indebtedness and annual excess cash flow (in each case, subject to certain customary exceptions). At December 31, 2022, current maturities of long-term debt in the accompanying Condensed Consolidated Balance Sheet included a $44.0 million prepayment of principal on the Term Loan B, which was paid in April 2023, relating to the mandatory prepayment provision of the 2020 Credit Agreement in respect of annual excess cash flow.
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 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
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TUTOR PERINI CORPORATION AND SUBSIDIARIES
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
UNAUDITED
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, (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) in the case of the Term Loan B, following the amendment to the 2020 Credit Agreement on May 2, 2023 (as discussed below), (x) the Adjusted Term Secured Overnight Financing Rate (“Adjusted Term SOFR”) (calculated with a 11.448 basis point, 26.161 basis point and 42.826 basis point credit spread adjustment for a 1, 3 and 6 month interest period, respectively) or (y) 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 Adjusted Term SOFR rate for a one-month interest period plus 100 basis points) and (B) in case of the Revolver, following the amendment to the 2020 Credit Agreement on October 31, 2022 (as discussed below), (x) the Adjusted Term SOFR rate (calculated with a 10 basis point credit spread adjustment for all interest periods) or (y) 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 Adjusted Term SOFR rate for a one-month interest period plus 100 basis points) plus, in each case, (ii) an applicable margin. The margin applicable to the Term Loan B is between 4.50 % and 4.75 % for Adjusted Term SOFR and between 3.50 % and 3.75 % for base rate, and, in each case, is based on the Total Net Leverage Ratio. The margin applicable to the Revolver is between 4.25 % and 4.75 % for Adjusted Term SOFR and 3.25 % and 3.75 % for base rate, and, in each case, is based on the First Lien Net Leverage Ratio. Effective following the amendment to the 2020 Credit Agreement on October 31, 2022, the Company’s original London Interbank Offered Rate (“LIBOR”) option in respect of the Revolver was transitioned to Adjusted Term SOFR. Effective May 2, 2023, the 2020 Credit Agreement was further amended to transition the Company’s original LIBOR option in respect of the Term Loan B to Adjusted Term SOFR. 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 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 2020 Credit Agreement includes customary provisions for the replacement of Adjusted Term SOFR with an alternative benchmark rate upon Adjusted Term SOFR being discontinued. The weighted-average annual interest rate on borrowings under the Revolver was 11.78 % during the six months ended June 30, 2023.
The 2020 Credit Agreement initially required, solely with respect to the Revolver, 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 fiscal quarter ending March 31, 2022. On October 31, 2022, the 2020 Credit Agreement was amended to increase the maximum First Lien Net Leverage Ratio covenant level to 2.75 :1.00 (from 2.25 :1.00), effective the fiscal quarter ending September 30, 2022, and subsequently stepping back down to 2.25 :1.00 beginning the fiscal quarter ending June 30, 2023. On March 10, 2023, the 2020 Credit Agreement was further amended to set the maximum First Lien Net Leverage Ratio covenant level to 3.50 :1.00, effective the fiscal quarter ended December 31, 2022 and increasing to 3.75 :1.00 for the fiscal quarter ending March 31, 2023 and subsequently stepping down to 3.00 :1.00 for the fiscal quarter ending June 30, 2023, 2.50 :1.00 for the fiscal quarter ending September 30, 2023 and 2.25 :1.00 for the fiscal quarter ending December 31, 2023 and each fiscal quarter thereafter. 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 June 30, 2023, there was $150 million available under the Revolver. The Company had not utilized the Revolver for letters of credit. The Company was in compliance with the financial covenant under the 2020 Credit Agreement for the period ended June 30, 2023.
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.
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TUTOR PERINI CORPORATION AND SUBSIDIARIES
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
UNAUDITED
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.
Interest Expense
Interest expense as reported in the Condensed Consolidated Statements of Operations consisted of the following:
| Three Months Ended June 30, | Six Months Ended June 30, | ||||||||||||||||
| (in thousands) | 2023 | 2022 | 2023 | 2022 | |||||||||||||
| Cash interest expense: | |||||||||||||||||
| Interest on 2017 Senior Notes | $ | $ | $ | $ | |||||||||||||
| Interest on Term Loan B | |||||||||||||||||
| Interest on Revolver | |||||||||||||||||
| Other interest | |||||||||||||||||
| Total cash interest expense | |||||||||||||||||
Non-cash interest expense:(a) | |||||||||||||||||
| Amortization of discount and debt issuance costs on Term Loan B | |||||||||||||||||
| Amortization of debt issuance costs on 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 10.84 %, respectively, for the six months ended June 30, 2023.
(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 June 30, 2023, the Company’s operating leases have remaining lease terms ranging from less than one year to 15 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 and six months ended June 30, 2023 and 2022:
| Three Months Ended June 30, | Six Months Ended June 30, | ||||||||||||||||
| (in thousands) | 2023 | 2022 | 2023 | 2022 | |||||||||||||
| 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 of up to one year . Short-term leases include, among other things, construction equipment rented on an as-needed basis as well as temporary housing.
16
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 June 30, 2023 | As of December 31, 2022 | ||||||||
| 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:
| Six Months Ended June 30, | ||||||||
| (in thousands) | 2023 | 2022 | ||||||
| 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 June 30, 2023:
Year (in thousands) | Operating Leases | ||||
2023 (excluding the six months ended June 30, 2023) | $ | ||||
| 2024 | |||||
| 2025 | |||||
| 2026 | |||||
| 2027 | |||||
| Thereafter | |||||
| Total lease payments | |||||
| Less: Imputed interest | |||||
| Total | $ | ||||
(10)Commitments and Contingencies
17
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:
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 September 15, 2022, the Washington Supreme Court affirmed the decision of the Court of Appeals, which limits recovery of certain damages under the Policy. Based on the rulings of the Court of Appeals, the case will continue for adjudication on the remaining facts and legal issues, including the number of covered occurrences which could increase the amount of available coverage under the Policy and the amount of investigative costs that are subject to the Policy limits. STP also has claims for costs, fees, pre-judgment interest and extra-contractual and statutory claims, which are not subject to the Policy limits.
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.
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 subsequently filed a counterclaim against WSDOT. 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. 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. 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. STP filed a petition for discretionary review by the Washington Supreme Court on July 12, 2022, which was denied by the Supreme Court on October 10, 2022. On October 18, 2022, STP paid the damages and associated interest from the judgment, which included the Company’s proportionate share of $34.6 million. As a result, the lawsuit between STP and WSDOT has concluded.
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TUTOR PERINI CORPORATION AND SUBSIDIARIES
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
UNAUDITED
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 facility opened to the public 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 were invalid due to lack of notice. TPBC denied the Developer’s claims and filed a counterclaim in March 2018. TPBC was seeking in excess of $113 million in the arbitration, which included 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. The Developer was seeking an additional $4.8 million in damages from TPBC beyond the $29 million it had withheld.
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 against Developer 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. TPBC filed an appeal with the U.S. Court of Appeals for the Second Circuit on August 20, 2021, which conducted oral argument on October 27, 2022. On April 10, 2023, the Second Circuit affirmed the bankruptcy court’s and district court’s denials of TPBC’s third-party beneficiary rights under the project’s lease agreement’s “cure” provisions and concluded that TPBC’s claims were not otherwise entitled to priority treatment under the Bankruptcy Code and should therefore be treated as unsecured claims that are subordinate to the claims of the secured lenders in the Developer’s bankruptcy case. As a result of this adverse decision from the Second Circuit, the Company recorded a non-cash, pre-tax charge to income (loss) from construction operations of $83.6 million in the first quarter of 2023. TPBC has no further avenues to recover its costs from the Developer or the bankruptcy-related actions, nor does the Developer have any ability to recover its claims against TPBC, and these lawsuits have now concluded.
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 filed a notice of appeal on April 28, 2022, which is pending.
In 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
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TUTOR PERINI CORPORATION AND SUBSIDIARIES
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
UNAUDITED
a motion to dismiss on March 4, 2022, which the federal bankruptcy court granted on September 30, 2022. This lawsuit is now concluded.
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 seeking the same $113 million in damages against the 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. On June 8, 2022, the court certified the class under the New York construction trust fund statutes. The case remains pending before the court.
Management has made an estimate of the total anticipated recovery of TPBC’s claims against the individual owners of the Developer and the Port Authority on this project, and such estimate is included in revenue recorded to date.
(11)Share-Based Compensation
As of June 30, 2023, there were 593,685 shares of common stock available for grant under the Tutor Perini Corporation Omnibus Incentive Plan. During the six months ended June 30, 2023 and 2022, the Company granted the following share-based instruments: (1) RSUs totaling 590,188 and 375,769 , respectively, with weighted-average grant date fair values per unit of $8.66 and $10.53 , respectively; (2) shares of unrestricted stock totaling 302,112 and 165,030 , respectively, with weighted-average grant date fair values per share of $5.66 and $10.63 , respectively; and (3) cash-settled performance stock units (“CPSUs”) totaling 901,541 and 315,768 , respectively, with weighted-average grant date fair values per unit of $11.18 and $14.89 , respectively. During the six months ended June 30, 2023, the Company also granted a cash award with a service-based vesting condition and payout indexed to 90,000 shares of the Company’s common stock, with a weighted-average grant date fair value of $8.98 per share.
As of June 30, 2023 and December 31, 2022, the Company recognized liabilities for CPSUs and RSUs with guaranteed minimum payouts and certain cash-settled awards on the Condensed Consolidated Balance Sheets totaling approximately $5.0 million and $2.1 million, respectively. During the six months ended June 30, 2023 and 2022, the Company paid approximately $0.2 million and $2.6 million, respectively, to settle certain awards upon vesting.
For the three and six months ended June 30, 2023, the Company recognized, as part of general and administrative expenses, costs for share-based payment arrangements totaling $2.6 million and $5.6 million, respectively, and $1.4 million and $4.8 million for the three and six months ended June 30, 2022, respectively. As of June 30, 2023, the balance of unamortized share-based compensation expense was $18.7 million, which is expected to be recognized over a weighted-average period of 2.0 years. During the three and six months ended June 30, 2023, share-based compensation was reduced by $0.5 0.4 million which will be amortized as share-based compensation expense through March 2024.
(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 and six months ended June 30, 2023 and 2022:
| Three Months Ended June 30, | Six Months Ended June 30, | ||||||||||||||||
| (in thousands) | 2023 | 2022 | 2023 | 2022 | |||||||||||||
| Interest cost | $ | $ | $ | $ | |||||||||||||
| Service cost | |||||||||||||||||
| Expected return on plan assets | ( | ( | ( | ( | |||||||||||||
| Recognized net actuarial losses | |||||||||||||||||
| Net periodic benefit cost | $ | $ | $ | $ | |||||||||||||
20
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 June 30, 2023 and December 31, 2022:
| As of June 30, 2023 | As of December 31, 2022 | ||||||||||||||||||||||||||||||||||
| 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 June 30, 2023 and December 31, 2022, consist of available-for-sale (“AFS”) debt securities, which are valued based on pricing models determined from a compilation of primarily observable market information, broker quotes in non-active markets or similar assets; therefore, they are classified as Level 2 assets.
(c)Investments in lieu of retention are included in retention receivable as of June 30, 2023 and December 31, 2022, and are comprised of money market funds of $17.9 million and $20.1 million, respectively, and AFS debt securities of $74.3 million and $68.2 million, respectively. The fair values of the money market funds are measured using quoted market prices; therefore, they are classified as Level 1 assets. The fair values of AFS debt securities are determined from a compilation of primarily observable market information, broker quotes in non-active markets or similar assets; therefore, they are classified as Level 2 assets.
21
TUTOR PERINI CORPORATION AND SUBSIDIARIES
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
UNAUDITED
Investments in AFS debt securities consisted of the following as of June 30, 2023 and December 31, 2022:
| As of June 30, 2023 | As of December 31, 2022 | ||||||||||||||||||||||||||||
| (in thousands) | Amortized Cost | Unrealized Gains | Unrealized Losses | Fair Value | Amortized Cost | Unrealized Gains | Unrealized Losses | Fair Value | |||||||||||||||||||||
| Restricted investments: | |||||||||||||||||||||||||||||
| Corporate debt securities | $ | $ | $ | ( | $ | $ | $ | $ | ( | $ | |||||||||||||||||||
| U.S. government agency securities | ( | ( | |||||||||||||||||||||||||||
| Municipal bonds | ( | ( | |||||||||||||||||||||||||||
| Corporate certificates of deposit | ( | ( | |||||||||||||||||||||||||||
| Total restricted investments | ( | ( | |||||||||||||||||||||||||||
| Investments in lieu of retention: | |||||||||||||||||||||||||||||
| Corporate debt securities | ( | ( | |||||||||||||||||||||||||||
| Municipal bonds | |||||||||||||||||||||||||||||
| Total investments in lieu of retention | ( | ( | |||||||||||||||||||||||||||
| Total AFS debt securities | $ | $ | $ | ( | $ | $ | $ | $ | ( | $ | |||||||||||||||||||
22
TUTOR PERINI CORPORATION AND SUBSIDIARIES
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
UNAUDITED
The following table summarizes the fair value and gross unrealized losses aggregated by category and the length of time that individual securities have been in a continuous unrealized loss position as of June 30, 2023 and December 31, 2022:
| As of June 30, 2023 | ||||||||||||||||||||||||||
| Less than 12 Months | 12 Months or Greater | Total | ||||||||||||||||||||||||
| (in thousands) | Fair Value | Unrealized Losses | Fair Value | Unrealized Losses | Fair Value | Unrealized Losses | ||||||||||||||||||||
| Restricted investments: | ||||||||||||||||||||||||||
| Corporate debt securities | $ | $ | ( | $ | $ | ( | $ | $ | ( | |||||||||||||||||
| U.S. government agency securities | ( | ( | ( | |||||||||||||||||||||||
| Municipal bonds | ( | ( | ( | |||||||||||||||||||||||
| Corporate certificates of deposit | ( | ( | ||||||||||||||||||||||||
| Total restricted investments | ( | ( | ( | |||||||||||||||||||||||
| Investments in lieu of retention: | ||||||||||||||||||||||||||
| Corporate debt securities | ( | ( | ( | |||||||||||||||||||||||
| Total investments in lieu of retention | ( | ( | ( | |||||||||||||||||||||||
| Total AFS debt securities | $ | $ | ( | $ | $ | ( | $ | $ | ( | |||||||||||||||||
| As of December 31, 2022 | ||||||||||||||||||||||||||
| Less than 12 Months | 12 Months or Greater | Total | ||||||||||||||||||||||||
| (in thousands) | Fair Value | Unrealized Losses | Fair Value | Unrealized Losses | Fair Value | Unrealized Losses | ||||||||||||||||||||
| Restricted investments: | ||||||||||||||||||||||||||
| Corporate debt securities | $ | $ | ( | $ | $ | ( | $ | $ | ( | |||||||||||||||||
| U.S. government agency securities | ( | ( | ( | |||||||||||||||||||||||
| Municipal bonds | ( | ( | ( | |||||||||||||||||||||||
| Corporate certificates of deposit | ( | ( | ( | |||||||||||||||||||||||
| Total restricted investments | ( | ( | ( | |||||||||||||||||||||||
| Investments in lieu of retention: | ||||||||||||||||||||||||||
| Corporate debt securities | ( | ( | ( | |||||||||||||||||||||||
| Total investments in lieu of retention | ( | ( | ( | |||||||||||||||||||||||
| Total AFS debt securities | $ | $ | ( | $ | $ | ( | $ | $ | ( | |||||||||||||||||
The unrealized losses in AFS debt securities as of June 30, 2023 and December 31, 2022 are primarily attributable to market interest rate increases and not a deterioration in credit quality of the issuers. Management evaluated the unrealized losses in AFS debt securities considering factors including credit ratings and other relevant information, which may indicate that contractual cash flows are not expected to occur. Based on the analysis, management determined that credit losses did not exist for AFS debt securities in an unrealized loss position as of June 30, 2023 and December 31, 2022.
It is not considered likely that the Company will be required to sell the investments before full recovery of the amortized cost basis of the AFS debt securities, which may be at maturity. As a result, consistent with the same period in 2022, the Company has not recognized any impairment losses in earnings during the six months ended June 30, 2023.
23
TUTOR PERINI CORPORATION AND SUBSIDIARIES
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
UNAUDITED
The amortized cost and fair value of AFS debt securities by contractual maturity as of June 30, 2023 are summarized in the table below. Actual maturities may differ from contractual maturities because certain borrowers have the right to call or prepay certain obligations.
| (in thousands) | Amortized Cost | Fair Value | ||||||
| Due within one year | $ | $ | ||||||
| Due after one year through five years | ||||||||
| Due after five years | ||||||||
| Total | $ | $ | ||||||
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 $421.3 million and $439.7 million as of June 30, 2023 and December 31, 2022, respectively. The fair values of the 2017 Senior Notes were determined using Level 1 inputs, specifically current observable market prices. The fair value of the Term Loan B was $330.5 million and $389.5 million as of June 30, 2023 and December 31, 2022, respectively. The fair values of the Term Loan B were 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 June 30, 2023 and December 31, 2022.
(14)Variable Interest Entities (VIEs)
The Company may form joint ventures or partnerships with third parties for the execution of projects. In accordance with ASC 810, Consolidation (“ASC 810”), the Company assesses its partnerships and joint ventures at inception to determine if any meet the qualifications of a VIE. The Company considers a joint venture a VIE if either (a) the total equity investment is not 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 June 30, 2023, the Company had unconsolidated VIE-related current assets and liabilities of $0.6 million and $0.2 million, respectively, included in the Company’s Condensed Consolidated Balance Sheets. As of December 31, 2022, the Company had unconsolidated VIE-related current assets of $0.4 million included in the Company’s Condensed Consolidated Balance Sheets. 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 June 30, 2023.
As of June 30, 2023, the Company’s Condensed Consolidated Balance Sheets included current and noncurrent assets of $500.4 million and $31.9 million, respectively, as well as current liabilities of $541.3 million related to the operations of its consolidated VIEs. As of December 31, 2022, the Company’s Condensed Consolidated Balance Sheets included current and noncurrent assets of $527.3 million and $22.4 million, respectively, as well as current liabilities of $567.3 million related to the operations of its consolidated VIEs.
24
TUTOR PERINI CORPORATION AND SUBSIDIARIES
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
UNAUDITED
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.
(15)Changes in Equity
A reconciliation of the changes in equity for the three and six months ended June 30, 2023 and 2022 is provided below:
| Three Months Ended June 30, 2023 | ||||||||||||||||||||
| (in thousands) | Common Stock | Additional Paid-in Capital | Retained Earnings | Accumulated Other Comprehensive Loss | Noncontrolling Interests | Total Equity | ||||||||||||||
| Balance - March 31, 2023 | $ | $ | $ | $ | ( | $ | ( | $ | ||||||||||||
| Net income (loss) | — | — | ( | — | ( | |||||||||||||||
| Other comprehensive income (loss) | — | — | — | ( | ||||||||||||||||
| Share-based compensation | — | — | — | — | ||||||||||||||||
| Issuance of common stock, net | ( | — | — | — | ||||||||||||||||
| Distributions to noncontrolling interests | — | — | — | — | ( | ( | ||||||||||||||
| Balance - June 30, 2023 | $ | $ | $ | $ | ( | $ | $ | |||||||||||||
| Six Months Ended June 30, 2023 | ||||||||||||||||||||
| (in thousands) | Common Stock | Additional Paid-in Capital | Retained Earnings | Accumulated Other Comprehensive Loss | Noncontrolling Interests | Total Equity | ||||||||||||||
| Balance - December 31, 2022 | $ | $ | $ | $ | ( | $ | ( | $ | ||||||||||||
| Net income (loss) | — | — | ( | — | ( | |||||||||||||||
| Other comprehensive income | — | — | — | |||||||||||||||||
| Share-based compensation | — | — | — | — | ||||||||||||||||
| Issuance of common stock, net | ( | — | — | — | ||||||||||||||||
| Contributions from noncontrolling interests | — | — | — | — | ||||||||||||||||
| Distributions to noncontrolling interests | — | — | — | — | ( | ( | ||||||||||||||
| Balance - June 30, 2023 | $ | $ | $ | $ | ( | $ | $ | |||||||||||||
25
TUTOR PERINI CORPORATION AND SUBSIDIARIES
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
UNAUDITED
| Three Months Ended June 30, 2022 | ||||||||||||||||||||
| (in thousands) | Common Stock | Additional Paid-in Capital | Retained Earnings | Accumulated Other Comprehensive Loss | Noncontrolling Interests | Total Equity | ||||||||||||||
| Balance - March 31, 2022 | $ | $ | $ | $ | ( | $ | $ | |||||||||||||
| Net income (loss) | — | — | ( | — | ( | |||||||||||||||
| Other comprehensive loss | — | — | — | ( | ( | ( | ||||||||||||||
| Share-based compensation | — | — | — | — | ||||||||||||||||
| Issuance of common stock, net | — | — | — | — | ||||||||||||||||
| Distributions to noncontrolling interests | — | — | — | — | ( | ( | ||||||||||||||
| Balance - June 30, 2022 | $ | $ | $ | $ | ( | $ | ( | $ | ||||||||||||
| Six Months Ended June 30, 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 - June 30, 2022 | $ | $ | $ | $ | ( | $ | ( | $ | ||||||||||||
(16)Other Comprehensive Income (Loss)
26
TUTOR PERINI CORPORATION AND SUBSIDIARIES
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
UNAUDITED
The components of other comprehensive income (loss) and the related tax effects for the three and six months ended June 30, 2023 and 2022 were as follows:
| Three Months Ended June 30, 2023 | Three Months Ended June 30, 2022 | ||||||||||||||||||||||
| (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 loss attributable to Tutor Perini Corporation | $ | ( | $ | $ | ( | $ | ( | $ | $ | ( | |||||||||||||
| Six Months Ended June 30, 2023 | Six Months Ended June 30, 2022 | ||||||||||||||||||||||
| (in thousands) | Before-Tax Amount | Tax Expense | 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 gain (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 and six months ended June 30, 2023 and 2022 were as follows:
| Three Months Ended June 30, 2023 | ||||||||||||||
| (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 March 31, 2023 | $ | ( | $ | ( | $ | ( | $ | ( | ||||||
| Other comprehensive income (loss) before reclassifications | ( | ( | ||||||||||||
| Amounts reclassified from AOCI | ||||||||||||||
| Total other comprehensive income (loss) | ( | ( | ||||||||||||
| Balance as of June 30, 2023 | $ | ( | $ | ( | $ | ( | $ | ( | ||||||
| Attributable to Noncontrolling Interests: | ||||||||||||||
| Balance as of March 31, 2023 | $ | $ | ( | $ | ( | $ | ( | |||||||
| Other comprehensive income (loss) | ( | |||||||||||||
| Balance as of June 30, 2023 | $ | $ | ( | $ | ( | $ | ( | |||||||
27
TUTOR PERINI CORPORATION AND SUBSIDIARIES
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
UNAUDITED
| Six Months Ended June 30, 2023 | ||||||||||||||
| (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, 2022 | $ | ( | $ | ( | $ | ( | $ | ( | ||||||
| Other comprehensive income before reclassifications | ||||||||||||||
| Amounts reclassified from AOCI | ||||||||||||||
| Total other comprehensive income | ||||||||||||||
| Balance as of June 30, 2023 | $ | ( | $ | ( | $ | ( | $ | ( | ||||||
| Attributable to Noncontrolling Interests: | ||||||||||||||
| Balance as of December 31, 2022 | $ | $ | ( | $ | ( | $ | ( | |||||||
| Other comprehensive income | ||||||||||||||
| Balance as of June 30, 2023 | $ | $ | ( | $ | ( | $ | ( | |||||||
| Three Months Ended June 30, 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 March 31, 2022 | $ | ( | $ | ( | $ | ( | $ | ( | ||||||
| Other comprehensive loss before reclassifications | ( | ( | ( | |||||||||||
| Amounts reclassified from AOCI | ||||||||||||||
| Total other comprehensive income (loss) | ( | ( | ( | |||||||||||
| Balance as of June 30, 2022 | $ | ( | $ | ( | $ | ( | $ | ( | ||||||
| Attributable to Noncontrolling Interests: | ||||||||||||||
| Balance as of March 31, 2022 | $ | $ | $ | ( | $ | |||||||||
| Other comprehensive loss | ( | ( | ( | |||||||||||
| Balance as of June 30, 2022 | $ | $ | $ | ( | $ | ( | ||||||||
| Six Months Ended June 30, 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 June 30, 2022 | $ | ( | $ | ( | $ | ( | $ | ( | ||||||
| Attributable to Noncontrolling Interests: | ||||||||||||||
| Balance as of December 31, 2021 | $ | $ | $ | $ | ||||||||||
| Other comprehensive loss | ( | ( | ( | |||||||||||
| Balance as of June 30, 2022 | $ | $ | $ | ( | $ | ( | ||||||||
28
TUTOR PERINI CORPORATION AND SUBSIDIARIES
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
UNAUDITED
The significant items reclassified out of AOCI and the corresponding location and impact on the Condensed Consolidated Statements of Operations during the three and six months ended June 30, 2023 and 2022 were as follows:
| Three Months Ended June 30, | Six Months Ended June 30, | ||||||||||||||||
| (in thousands) | 2023 | 2022 | 2023 | 2022 | |||||||||||||
| Component of AOCI: | |||||||||||||||||
Defined benefit pension plan adjustments(a) | $ | $ | $ | $ | |||||||||||||
Income tax benefit(b) | ( | ( | ( | ( | |||||||||||||
| Net of tax | $ | $ | $ | $ | |||||||||||||
Unrealized loss in fair value of investment adjustments(a) | $ | $ | $ | $ | |||||||||||||
Income tax benefit(b) | ( | ( | ( | ( | |||||||||||||
| Net of tax | $ | $ | $ | $ | |||||||||||||
___________________________________________________________________________________________________
(a)Amounts 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 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.
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.
29
TUTOR PERINI CORPORATION AND SUBSIDIARIES
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
UNAUDITED
The following tables set forth certain reportable segment information relating to the Company’s operations for the three and six months ended June 30, 2023 and 2022:
| Reportable Segments | ||||||||||||||||||||||||||
| (in thousands) | Civil | Building | Specialty Contractors | Total | Corporate | Consolidated Total | ||||||||||||||||||||
| Three Months Ended June 30, 2023 | ||||||||||||||||||||||||||
| 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 June 30, 2022 | ||||||||||||||||||||||||||
| Total revenue | $ | $ | $ | $ | $ | — | $ | |||||||||||||||||||
| Elimination of intersegment revenue | ( | ( | — | ( | ||||||||||||||||||||||
| Revenue from external customers | $ | $ | $ | $ | $ | $ | ||||||||||||||||||||
| Loss from construction operations | $ | ( | $ | ( | $ | ( | $ | ( | (d) | $ | ( | (b) | $ | ( | ||||||||||||
| Capital expenditures | $ | $ | $ | $ | $ | $ | ||||||||||||||||||||
Depreciation and amortization(c) | $ | $ | $ | $ | $ | $ | ||||||||||||||||||||
(a)During the three months ended June 30, 2023, the Company’s income (loss) from construction operations was impacted by favorable adjustments totaling $58.1 million ($46.1 million, or $0.89 per diluted share, after tax) resulting from changes in estimates due to improved performance on a Civil segment mass-transit project in California, $35.8 million ($26.0 million, or $0.50 per diluted share, after tax) of unfavorable non-cash adjustments due to changes in estimates on the Specialty Contractors segment’s electrical and mechanical scope of a transportation project in the Northeast associated with a change in the expected recovery on certain unapproved change orders, a non-cash charge of $24.7 million ($18.0 million, or $0.35 per diluted share, after tax) that resulted from an adverse legal ruling on a Specialty Contractors segment educational facilities project in New York and a $13.1 million ($10.2 million, or $0.20 per diluted share, after tax) unfavorable adjustment on a transportation project in the Northeast, split evenly between the Civil and Building segments, due to the settlement of certain change orders during project closeout.
(b)Consists primarily of corporate general and administrative expenses.
(c)Depreciation and amortization is included in income (loss) from construction operations.
(d)During the three months ended June 30, 2022, the Company’s income (loss) from construction operations was adversely impacted by $33.5 million ($24.2 million, or $0.47 per diluted share, after tax) due to an unfavorable adjustment related to the unforeseen cost of project close-out issues, remediation work, extended project supervision and associated labor inefficiencies on the electrical component of a transportation project in the Northeast in the Specialty Contractors segment, a non-cash charge of $17.8 million that increased cost of operations ($12.8 million, or $0.25 per diluted share, after tax) associated with an unexpected partial reversal by an appellate court of previously awarded legal damages related to a completed electrical project in New York in the Specialty Contractors segment, and a $16.2 million unfavorable non-cash impact ($11.6 million, or $0.23 per diluted share, after tax) related to the settlement of a long-disputed, completed Civil segment project in Maryland.
30
TUTOR PERINI CORPORATION AND SUBSIDIARIES
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
UNAUDITED
| Reportable Segments | ||||||||||||||||||||||||||
| (in thousands) | Civil | Building | Specialty Contractors | Total | Corporate | Consolidated Total | ||||||||||||||||||||
| Six Months Ended June 30, 2023 | ||||||||||||||||||||||||||
| Total revenue | $ | $ | $ | $ | $ | — | $ | |||||||||||||||||||
| Elimination of intersegment revenue | ( | ( | ( | — | ( | |||||||||||||||||||||
| Revenue from external customers | $ | $ | $ | $ | $ | $ | ||||||||||||||||||||
| Income (loss) from construction operations | $ | $ | ( | $ | ( | $ | ( | (a) | $ | ( | (b) | $ | ( | |||||||||||||
| Capital expenditures | $ | $ | $ | $ | $ | $ | ||||||||||||||||||||
Depreciation and amortization(c) | $ | $ | $ | $ | $ | $ | ||||||||||||||||||||
| Six Months Ended June 30, 2022 | ||||||||||||||||||||||||||
| Total revenue | $ | $ | $ | $ | $ | — | $ | |||||||||||||||||||
| Elimination of intersegment revenue | ( | ( | ( | ( | — | ( | ||||||||||||||||||||
| Revenue from external customers | $ | $ | $ | $ | $ | $ | ||||||||||||||||||||
| Income (loss) from construction operations | $ | ( | $ | $ | ( | $ | ( | (d) | $ | ( | (b) | $ | ( | |||||||||||||
| Capital expenditures | $ | $ | $ | $ | $ | $ | ||||||||||||||||||||
Depreciation and amortization(c) | $ | $ | $ | $ | $ | $ | ||||||||||||||||||||
____________________________________________________________________________________________________
(a)During the six months ended June 30, 2023, the Company’s income (loss) from construction operations was impacted by an adverse legal ruling on a completed mixed-use project in New York, which resulted in a non-cash, pre-tax charge of $83.6 million ($60.1 million, or $1.16 per diluted share, after-tax), of which $72.2 million impacted the Building segment and $11.4 million impacted the Specialty Contractors segment, $35.8 million ($26.0 million, or $0.50 per diluted share, after tax) of unfavorable non-cash adjustments due to changes in estimates on the Specialty Contractors segment’s electrical and mechanical scope of a transportation project in the Northeast associated with a change in the expected recovery on certain unapproved change orders, net favorable adjustments of $30.1 million ($23.9 million, or $0.46 per diluted share, after tax) for a Civil segment mass-transit project in California that resulted from changes in estimates due to improved performance, a non-cash charge of $24.7 million ($18.0 million, or $0.35 per diluted share, after tax) that resulted from an adverse legal ruling on a Specialty Contractors segment educational facilities project in New York, and a $13.1 million ($10.2 million, or $0.20 per diluted share, after tax) unfavorable adjustment on a transportation project in the Northeast, split evenly between the Civil and Building segments, due to the settlement of certain change orders during project closeout.
(b)Consists primarily of corporate general and administrative expenses.
(c)Depreciation and amortization is included in income (loss) from construction operations.
(d)During the six months ended June 30, 2022, the Company’s income (loss) from construction operations was adversely impacted by $33.5 million ($24.2 million, or $0.47 per diluted share, after tax) due to an unfavorable adjustment related to the unforeseen cost of project close-out issues, remediation work, extended project supervision and associated labor inefficiencies on the electrical component of a transportation project in the Northeast in the Specialty Contractors segment, and $29.1 million ($22.9 million, or $0.45 per diluted share, after tax) 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. The Company’s income (loss) from construction operations was also impacted by a non-cash charge of $25.5 million ($18.3 million, or $0.36 per diluted share, after tax) due to an adverse legal ruling on a dispute related to a Civil segment bridge project in New York, a non-cash charge of $17.8 million that increased cost of operations ($12.8 million, or $0.25 per diluted share, after tax) associated with an unexpected partial reversal by an appellate court of previously awarded legal damages related to a completed electrical project in New York in the Specialty Contractors segment, a $16.2 million unfavorable non-cash impact ($11.6 million, or $0.23 per diluted share, after tax) related to the settlement of a long-disputed, completed Civil segment project in Maryland, and a $14.6 million ($11.2 million, or $0.22 per diluted share, after tax) unfavorable adjustment split evenly between the Civil and Building segments due to changes in estimates on a transportation project in the Northeast.
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TUTOR PERINI CORPORATION AND SUBSIDIARIES
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
UNAUDITED
A reconciliation of segment results to the consolidated loss before income taxes is as follows:
| Three Months Ended June 30, | Six Months Ended June 30, | ||||||||||||||||
| (in thousands) | 2023 | 2022 | 2023 | 2022 | |||||||||||||
| Income (loss) from construction operations | $ | $ | ( | $ | ( | $ | ( | ||||||||||
| Other income, net | |||||||||||||||||
| Interest expense | ( | ( | ( | ( | |||||||||||||
| Loss before income taxes | $ | ( | $ | ( | $ | ( | $ | ( | |||||||||
Total assets by segment were as follows:
| (in thousands) | As of June 30, 2023 | As of December 31, 2022 | ||||||
| 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.
Major Customer
Revenue from a single customer with multiple projects, impacting the Civil, Building and Specialty Contractors segments, represented 15.8 % and 17.4 % of the Company’s consolidated revenue for the three and six months ended June 30, 2023, respectively.
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TUTOR PERINI CORPORATION AND SUBSIDIARIES
Item 2. Management’s Discussion and Analysis of Financial Condition and Results of Operations
The following discussion and analysis of our financial position as of June 30, 2023 and the results of our operations for the three and six months ended June 30, 2023 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, 2022, and the information contained under the heading “Risk Factors” in our Annual Report on Form 10‑K for the year ended December 31, 2022 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:
•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;
•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 has resulted and may continue to result in losses or lower than anticipated profit;
•Increased competition and failure to secure new contracts;
•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;
•Risks and other uncertainties associated with assumptions and estimates used to prepare our financial statements;
•A significant slowdown or decline in economic conditions, such as those presented during a recession;
•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;
•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, labor conditions and other unforeseeable events in countries where we do business, which could adversely affect our revenue and earnings;
•Decreases in the level of government spending for infrastructure and other public projects;
•An inability to obtain bonding could have a negative impact on our operations and results;
•Possible systems and information technology interruptions and breaches in data security and/or privacy;
•Failure to meet our obligations under our debt agreements, especially in a high interest rate environment;
•Downgrades in our credit ratings;
•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;
•Risks related to government contracts and related procurement regulations;
•Significant fluctuations in the market price of our common stock, which could result in substantial losses for stockholders and potentially subject us to securities litigation;
•Client cancellations of, or reductions in scope under, contracts reported in our backlog;
•Violations of the U.S. Foreign Corrupt Practices Act and similar worldwide anti-bribery laws;
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•Public health crises, such as COVID-19, have adversely impacted, and could in the future 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;
•Physical and regulatory risks related to climate change;
•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
During 2020 and 2021, the COVID-19 pandemic caused shut-downs or significant reductions in the operations of various courts and arbitration offices, which hindered the Company’s ability to resolve disputes related to unapproved work and resulted 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. This negative impact from the pandemic lessened in 2022 and remains low in 2023, with certain previously delayed disputes finally resolved and other settlement conferences and trial dates scheduled or being scheduled. Consequently, the Company continues to expect to make substantial progress in the resolution of various disputes and unapproved change orders in 2023 and beyond.
Through the latter part of 2021, the pandemic also significantly delayed the bidding and awarding of various large prospective civil projects, which has affected the volume and timing of our new awards. The follow-on impact has been a substantial but temporary reduction in our backlog, revenue and income from construction operations over the past three years. For example, the Company’s consolidated backlog had been near a record level at $11.2 billion as of December 31, 2019, just prior to the onset of the COVID-19 pandemic, but declined in each subsequent year through 2022, and was $7.9 billion as of December 31, 2022, a 29% decrease compared to the end of 2019. Similarly, revenue declined 29% from $5.3 billion for 2020 to $3.8 billion for 2022, though there were other factors that contributed to the revenue decline, particularly in 2022, as discussed in the Form 10-K filed for the year ended December 31, 2022. The current impacts from the pandemic have lessened, as evidenced by the recent strong growth in the Company’s backlog to $10.9 billion as of June 30, 2023, due primarily to new awards in the second quarter of 2023, as discussed below. However, the follow-on impact from delayed project bids and large contract awards has had a negative impact on our ability to generate revenue and profit, which has continued into 2023. In addition, many of our state and local government customers’ revenue sources were negatively impacted by the pandemic due to a reduction of commuter and business travel. 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 continued to moderate.
Operating Results
Consolidated revenue for the three months ended June 30, 2023 was $1.0 billion, up 19% compared to the second quarter of 2022, and was $1.8 billion for the first six months of both 2023 and 2022. The increase for the three-month period of 2023 was largely due to improved contributions from certain Civil segment mass-transit projects in California that have significant work remaining, as well as the absence of certain prior-year unfavorable adjustments related to a transportation project in the Northeast and the settlement of a long-disputed, completed Civil segment project in Maryland. The increase was partially offset by a current-year non-cash charge on a Specialty Contractors segment educational facilities project in New York that resulted from an adverse court ruling. Revenue for both six-month periods included unfavorable adjustments on certain projects, the impacts of which were comparable in the two periods, and which are discussed in more detail below in Results of Segment Operations. In addition, customer budgetary constraints induced by the COVID-19 pandemic, combined with certain political and other factors, resulted in the Company not being awarded certain Civil segment projects over the last few years totaling more than $10.0 billion despite having been the low or preferred bidder. Not being awarded these projects also impacted revenue for the first two quarters of both 2023 and 2022, and most of these projects are now expected to be re-bid in 2024. Furthermore, the Company was unsuccessful in its pursuit of certain large prospective Civil segment projects in the second half of 2021, which also unfavorably impacted revenue in 2022 and 2023.
Income from construction operations for the three months ended June 30, 2023 was $2.4 million compared to loss from construction operations of $90.6 million for the same period in 2022. The improvement was largely due to favorable adjustments totaling $58.1 million on a mass-transit project in California associated with changes in estimates due to improved performance, as well as contributions related to the volume increase associated with certain other Civil segment mass-transit projects in California discussed above and the absence of several prior-year unfavorable adjustments discussed below in Results of Segment Operations. The impact from the absence of these prior-year unfavorable adjustments was partially offset by current-year adjustments, including unfavorable non-cash adjustments of $35.8 million due to changes in estimates on the
34
Specialty Contractors segment’s electrical and mechanical scope of a transportation project in the Northeast associated with a change in the expected recovery on certain unapproved change orders, an unfavorable non-cash charge of $24.7 million that resulted from an adverse court ruling on a Specialty Contractors segment educational facilities project in New York, and a $13.1 million unfavorable adjustment on the same transportation project in the Northeast, split evenly between the Civil and Building segments, due to the settlement of certain change orders during project closeout.
Loss from construction operations for the six months ended June 30, 2023 was $79.6 million compared to $100.5 million for the same period in 2022. The change was favorably impacted by the same factors discussed above for the three-month period, including net favorable adjustments of $30.1 million on a mass-transit project in California that resulted from changes in estimates due to improved performance, as well as by the absence of certain additional prior-year unfavorable adjustments discussed below in Results of Segment Operations and a $14.6 million prior-year unfavorable adjustment split evenly between the Civil and Building segments due to changes in estimates on a transportation project in the Northeast. The impact from the absence of these prior-year unfavorable adjustments was mostly offset by a current-year first-quarter unfavorable adjustment related to an adverse legal ruling on a completed mixed-use project in New York, which resulted in a non-cash, pre-tax charge of $83.6 million, of which $72.2 million impacted the Building segment and $11.4 million impacted the Specialty Contractors segment.
Income tax expense was $0.2 million for the three months ended June 30, 2023, and for the six months ended June 30, 2023 an income tax benefit of $47.9 million was recognized. This compares to an income tax benefit of $43.7 million and $47.6 million for the three and six months ended June 30, 2022, respectively. See Corporate, Tax and Other Matters below for a discussion of the change in the effective tax rate.
Diluted loss per common share for the three and six months ended June 30, 2023 was $0.72 and $1.68, respectively, compared to diluted loss per common share of $1.23 and $1.65 for the same periods in 2022. The change in diluted loss per common share in both periods of 2023 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 and six months ended June 30, 2023 totaled $4.0 billion and $4.7 billion, respectively, compared to $1.1 billion and $2.1 billion for the same periods in 2022. The Building segment was the primary contributor to the new award activity in the second quarter of 2023. The most significant new awards and contract adjustments in the second quarter of 2023 included the $3.0 billion Brooklyn Jail design-build project in New York; a $222 million military facilities project at Tinian International Airport in the Commonwealth of the Northern Mariana Islands; $206 million of additional funding for a mass-transit project in California; $103 million of additional funding for a health care project in California; $87 million of additional funding for a mass-transit project in Minnesota; and a $54 million bridge project in Minnesota.
Consolidated backlog as of June 30, 2023 was $10.9 billion, up 37% compared to $7.9 billion as of December 31, 2022. As of June 30, 2023, the mix of backlog by segment was approximately 42% for Civil, 41% for Building and 17% for Specialty Contractors.
The following table presents the Company’s backlog by business segment, reflecting changes from December 31, 2022 to June 30, 2023:
| (in millions) | Backlog at December 31, 2022 | New Awards(a) | Revenue Recognized | Backlog at June 30, 2023(b) | ||||||||||
| Civil | $ | 4,416.3 | $ | 1,068.8 | $ | (904.0) | $ | 4,581.1 | ||||||
| Building | 2,223.6 | 2,793.9 | (561.0) | 4,456.5 | ||||||||||
| Specialty Contractors | 1,289.2 | 870.4 | (333.1) | 1,826.5 | ||||||||||
| Total | $ | 7,929.1 | $ | 4,733.1 | $ | (1,798.1) | $ | 10,864.1 | ||||||
____________________________________________________________________________________________________
(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 we will proceed with our work on the project (e.g., adequate funding is in place, we have received a notice of intent to award a contract, etc.).
35
The outlook for the Company’s revenue growth over the next several years continues to be favorable. However, revenue growth could be negatively impacted by project delays or the timing of project bids, 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 decade, voters in 44 states have approved 85% of nearly 3,000 state and local ballot measures, raising an estimated $342 billion in new and renewed revenue funding for transportation investments. The largest of these was in Los Angeles County, where Measure M, a half-cent sales tax increase, was approved in 2016. Funding from this measure is already flowing to some of the Company’s current and prospective projects, and overall the measure is expected to generate $120 billion of funding over 40 years. Interest rates have continued to increase over the past year, as anticipated, but are still at levels which we believe remain conducive to continued spending on certain types of projects that have strong end-market demand with adequate available funding, such as mass transit, transportation, bridges, and health care, educational and correctional facilities, among others. However, if borrowing rates continue to increase, they could reach levels that may negatively impact demand, particularly for certain Building segment end markets which tend to be more closely correlated to economic conditions.
The bipartisan Infrastructure Investment and Jobs Act of 2021 (the “Bipartisan Infrastructure Law” or “BIL”) 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 law 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 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, as initial funds have begun flowing to project owners and substantially increased funding from the BIL is expected to occur over the next several years.
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 June 30, | Six Months Ended June 30, | ||||||||||||||||
| (in millions) | 2023 | 2022 | 2023 | 2022 | |||||||||||||
| Revenue | $ | 554.1 | $ | 403.6 | $ | 904.0 | $ | 794.4 | |||||||||
| Income (loss) from construction operations | 105.4 | (9.8) | 123.4 | (10.7) | |||||||||||||
Revenue for the three and six months ended June 30, 2023 increased 37% and 14%, respectively, compared to the same periods in 2022. For both periods of 2023, the growth was largely due to changes in estimates resulting from improved performance and increased project execution activities on certain mass-transit projects in California, partially offset by reduced volume on a different mass-transit project in California that is nearing completion. The increase for both current-year periods was also attributable to the absence of certain prior-year unfavorable adjustments, also discussed in the paragraph below. Revenue for both periods was also adversely impacted by the follow-on impacts of COVID-19, which delayed bidding activities and awards of certain new projects during 2020 and much of 2021 and negatively impacted revenue for the six-month periods of both 2022 and 2023. Furthermore, revenue for both periods was adversely impacted by certain projects totaling more than $10.0 billion for which the Company was the low or preferred bidder but no contract was awarded over the last few years due to COVID-19-induced customer budget constraints, as well as the Company’s lack of success in its pursuit of certain large prospective Civil segment projects in the second half of 2021.
Income from construction operations for the three and six months ended June 30, 2023 was $105.4 million and $123.4 million, respectively, compared to loss from construction operations of $9.8 million and $10.7 million for the same periods in 2022. For
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the second quarter of 2023, the change was primarily due to favorable adjustments totaling $58.1 million on a mass-transit project in California associated with changes in estimates due to improved performance, as well as increased project execution activities on certain mass-transit projects in California. The change was also favorably impacted by the absence of certain prior-year unfavorable adjustments, including a non-cash impact of $16.2 million related to the settlement of a long-disputed, completed project in Maryland and, to a lesser extent, the temporary unfavorable impact from the successful negotiation of significant lower margin (and lower risk) change orders on the same mass-transit project in California. For the first six months of 2023, the change was primarily due to net favorable adjustments of $30.1 million on a mass-transit project in California that resulted from changes in estimates due to improved performance, as well as increased project execution activities on certain mass-transit projects in California. The change was also favorably impacted by the absence of prior-year unfavorable adjustments, including a temporary unfavorable impact of $29.1 million from the successful negotiation of significant lower margin (and lower risk) change orders on the mass-transit project in California mentioned above, a $25.5 million non-cash charge from an adverse legal ruling on a dispute related to a bridge project in New York and the above-mentioned non-cash impact of $16.2 million.
Operating margin was 19.0% and 13.7% for the three and six months ended June 30, 2023, respectively, compared to (2.4)% and (1.4)% for the same periods in 2022. The increases in operating margin were principally due to the above-mentioned factors that drove the changes in revenue and income (loss) from construction operations.
New awards in the Civil segment totaled $690 million and $1.1 billion for the three and six months ended June 30, 2023, respectively, compared to $721 million and $1.2 billion for the same periods in 2022. The most significant new awards and contract adjustments in the second quarter of 2023 included a $222 million military facilities project at Tinian International Airport in the Commonwealth of the Northern Mariana Islands; $206 million of additional funding for a mass-transit project in California; $87 million of additional funding for a mass-transit project in Minnesota; and a $54 million bridge project in Minnesota. COVID-19 has caused significant revenue shortfalls for certain state and local government agencies since 2020, which has resulted in delays in the bidding and awarding of certain large new projects. In addition, the timing and magnitude of federal, state and local funding, including anticipated contributions from the BIL, is uncertain, which could lead to similar delays.
Backlog for the Civil segment was $4.6 billion as of June 30, 2023 compared to $4.9 billion as of June 30, 2022. 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-approved transportation measures and the BIL, 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 (loss) from construction operations for the Building segment are summarized as follows:
| Three Months Ended June 30, | Six Months Ended June 30, | ||||||||||||||||
| (in millions) | 2023 | 2022 | 2023 | 2022 | |||||||||||||
| Revenue | $ | 331.3 | $ | 266.9 | $ | 561.0 | $ | 597.6 | |||||||||
| Income (loss) from construction operations | (13.8) | (0.1) | (84.0) | 9.4 | |||||||||||||
Revenue for the three months ended June 30, 2023 increased 24% compared to the same period in 2022, primarily due to increased project execution activities on various projects in California, the Northeast, Oklahoma and Florida, partially offset by reduced project execution activities on certain other projects in Arkansas and California that are nearing completion. Revenue for the six months ended June 30, 2023 decreased 6% compared to the same period in 2022, primarily due to the aforementioned unfavorable adjustment related to the adverse legal ruling on a completed mixed-use project in New York (also mentioned in the paragraph below). As discussed above in Executive Overview, revenue for both periods was adversely impacted by the follow-on impacts of COVID-19, which delayed certain project bids and awards in 2020 and 2021.
Loss from construction operations for the three and six months ended June 30, 2023 was $13.8 million and $84.0 million, respectively, compared to loss from construction operations of $0.1 million and income from construction operations of $9.4 million for the same periods in 2022. For the second quarter of 2023, the loss was principally due to unfavorable adjustments on certain projects in the Northeast, California and Florida, which were immaterial individually but totaled $15.8 million in the aggregate. For the first six months of 2023, the loss was primarily due to the aforementioned first-quarter unfavorable adjustment related to the adverse legal ruling on a completed mixed-use project in New York that resulted in a non-cash, pre-tax charge of $83.6 million, of which $72.2 million impacted the Building segment.
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Operating margin was (4.2)% and (15.0)% for the three and six months ended June 30, 2023, respectively, compared to (0.03)% and 1.6% for the same periods in 2022. The changes in operating margin were principally due to the aforementioned factors that drove the changes in revenue and income (loss) from construction operations.
New awards in the Building segment totaled $2.6 billion and $2.8 billion for the three and six months ended June 30, 2023, respectively, compared to $207 million and $532 million for the same periods in 2022. The most significant new awards in the second quarter of 2023 included the $3.0 billion Brooklyn Jail design-build project in New York (which includes more than $600 million of electrical and mechanical scope that is expected to be performed by the Specialty Contractors segment) and $103 million of additional funding for a health care facilities project in California. The lingering effects of COVID-19, including the proliferation of remote and hybrid work for many businesses, as well as slowing economic conditions caused by inflation and rising interest rates, could continue to result in certain delayed or even canceled Building segment project opportunities, particularly in the corporate office end market. However, other Building segment end markets, such as correctional facilities, health care, education, industrial/manufacturing, and hospitality and gaming, continue to show strong demand for new and renovated facilities.
Backlog for the Building segment was $4.5 billion as of June 30, 2023, up 99% compared to $2.2 billion as of June 30, 2022. The strong increase was largely due to the new $3.0 billion Brooklyn Jail project discussed above. The Building segment continues to experience strong customer demand as reflected by a large volume of prospective projects across various end markets and geographic locations.
Specialty Contractors Segment
Revenue and loss from construction operations for the Specialty Contractors segment are summarized as follows:
| Three Months Ended June 30, | Six Months Ended June 30, | ||||||||||||||||
| (in millions) | 2023 | 2022 | 2023 | 2022 | |||||||||||||
| Revenue | $ | 136.3 | $ | 190.5 | $ | 333.1 | $ | 421.2 | |||||||||
| Loss from construction operations | (69.8) | (66.7) | (82.3) | (70.6) | |||||||||||||
Revenue for the three and six months ended June 30, 2023 decreased 28% and 21%, respectively, compared to the same periods in 2022, principally due to reduced project execution activities on the electrical component of a transportation project in the Northeast that is nearing completion, partially offset by contributions from a technology facility project in Arizona. For both periods of 2023, the revenue decrease was also due to the aforementioned unfavorable non-cash adjustments due to changes in estimates on the electrical and mechanical scope of the same transportation project in the Northeast associated with a change in the expected recovery on certain unapproved change orders, as well as the adverse legal ruling on the educational facilities project in New York. The overall revenue decline was partially offset by the absence of a prior-year unfavorable adjustment on a transportation project in the Northeast. As discussed above in Executive Overview, operating results continue to be adversely impacted by the follow-on impacts of COVID-19, which delayed certain project bids and awards in 2020 and 2021, including projects that would have had considerable components of electrical and mechanical scope in the 2022 and 2023 periods had the projects been awarded and the Company won its share of such projects.
Loss from construction operations for the three and six months ended June 30, 2023 was $69.8 million and $82.3 million, respectively, compared to $66.7 million and $70.6 million for the same periods in 2022. The change in loss for the second quarter of 2023 (as compared to the prior-year quarter) was principally due to the current-year impacts of $35.8 million of unfavorable non-cash adjustments due to changes in estimates on the electrical and mechanical scope of the above mentioned transportation project in the Northeast associated with a change in the expected recovery on certain unapproved change orders, as well as a non-cash charge of $24.7 million on an educational facilities project in New York that resulted from an adverse court ruling. The current-year unfavorable adjustments were largely offset by the absence of prior-year unfavorable adjustments, including a $33.5 million unfavorable adjustment on a transportation project in the Northeast related to the unforeseen cost of project close-out issues, remediation work, extended project supervision and associated labor inefficiencies, as well as a non-cash charge of $17.8 million that increased cost of operations associated with an unexpected partial reversal by an appellate court of previously awarded legal damages related to a completed electrical project in New York. For the first six months of 2023, the change in loss (as compared to the prior-year period) was due to the same factors mentioned above for the three-month period, as well as the impact of the aforementioned unfavorable adjustment in the first quarter of 2023 related to the adverse legal ruling on a completed mixed-use project in New York, of which $11.4 million impacted the Specialty Contractors segment.
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Operating margin was (51.2)% and (24.7)% for the three and six months ended June 30, 2023, respectively, compared to (35.0)% and (16.8)% for the same periods in 2022. The changes in operating margin were principally due to the aforementioned factors that drove the changes in revenue and loss from construction operations.
New awards in the Specialty Contractors segment totaled $716 million and $870 million for the three and six months ended June 30, 2023, respectively, compared to $190 million and $414 million for the same periods in 2022. The most significant new awards in the second quarter of 2023 included more than $600 million of electrical and mechanical scope for the Brooklyn Jail project in New York. COVID-19 has resulted in, and could continue to result in, reduced demand from certain customers, particularly in New York, that continue to experience funding constraints.
Backlog for the Specialty Contractors segment was $1.8 billion as of June 30, 2023 compared to $1.4 billion as of June 30, 2022. The Specialty Contractors segment continues to be increasingly focused on servicing the Company’s current and prospective 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, 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 $18.6 million and $35.0 million during the three and six months ended June 30, 2023, respectively, compared to $14.0 million and $28.5 million for the same periods in 2022. The increase in the three and six months ended June 30, 2023 was primarily due to higher compensation-related expenses compared to the same periods in 2022.
Other Income, Net, Interest Expense and Income Tax (Expense) Benefit
| Three Months Ended June 30, | Six Months Ended June 30, | ||||||||||||||||
| (in millions) | 2023 | 2022 | 2023 | 2022 | |||||||||||||
| Other income, net | $ | 3.1 | $ | 1.0 | $ | 9.5 | $ | 4.7 | |||||||||
| Interest expense | (22.0) | (16.2) | (43.5) | (32.7) | |||||||||||||
| Income tax (expense) benefit | (0.2) | 43.7 | 47.9 | 47.6 | |||||||||||||
Other income, net for the six months ended June 30, 2023 increased by $4.8 million compared to the same period in 2022, primarily due to a gain on sale of property in the 2023 period.
Interest expense for the three and six months ended June 30, 2023 increased by $5.8 million and $10.8 million, respectively, compared to the same periods in 2022. The increases in the 2023 periods were substantially due to higher interest rates on the Term Loan B and the Revolver, as discussed below in Liquidity and Capital Resources.
The Company recognized income tax expense of $0.2 million for the three months ended June 30, 2023 and an income tax benefit of $47.9 million for the six months ended June 30, 2023. The effective income tax rate was (1.2)% and 42.2% for the three and six months ended June 30, 2023, respectively. The effective income tax rate for the three months ended June 30, 2023 was lower than the 21% federal statutory rate primarily due to the impact of a cumulative catch-up adjustment associated with the change in the Company’s projected 2023 effective tax rate that resulted from the revision of the Company’s forecast. The effective income tax rates for both periods were impacted by relatively large tax benefits generated against a forecasted pre-tax loss for the year, which magnified the impact these tax benefits had on the effective income tax rate. In periods with pre-tax losses, tax benefits generated during the period increase the effective income tax rate (and, thus, the income tax benefit to the Company) rather than decreasing the effective rate, as in periods with pre-tax income. The tax benefits that caused a higher effective tax rate were primarily the earnings attributable to noncontrolling interests (for which income taxes are not the responsibility of the Company) and state income taxes (net of the federal tax benefit), partially offset by non-deductible expenses.
For the three and six months ended June 30, 2022, the Company recognized an income tax benefit of $43.7 million and $47.6 million, respectively, with an effective income tax rate of 41.3% and 37.1%, respectively. The effective income tax rates for both periods were higher than the 21% federal statutory rate primarily due to tax benefits generated against a relatively low forecasted pre-tax loss for the year, which magnified the impact of tax benefits on the effective income tax rate. In periods with pre-tax losses, tax benefits generated during the period increase the effective income tax rate (and, thus, the income tax benefit
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to the Company) rather than decreasing the effective rate, as in periods with pre-tax income. The tax benefits in the respective periods that caused a higher tax rate were primarily the earnings attributable to noncontrolling interests (for which income taxes are not the responsibility of the Company) and state income tax benefits (net of the federal tax benefit).
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 $175.0 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 $150.0 million and available cash balances as of June 30, 2023, will be sufficient to fund working capital needs and debt maturities for the next 12 months and beyond. Despite our record operating cash flow in 2022 and relatively strong operating cash flow for the six months ended June 30, 2023 (as discussed below in Cash and Working Capital), liquidity has been and could continue to be negatively affected by the follow-on impacts of COVID-19, which induced customer budgetary constraints and delayed bidding activities and awards of certain large civil projects. We are also still pursuing COVID-19-related cost recoveries from certain customers. Our liquidity was also adversely impacted by the Company’s lack of success in its pursuit of certain large prospective Civil segment projects in the second half of 2021, as well as by instances where the Company was not awarded certain Civil segment projects totaling more than $10.0 billion over the last few years due to COVID-19-induced customer budget constraints, despite being the low or preferred bidder. 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 BIL and increasing revenue to government customers as travel and commuting levels rise, as discussed above, could offset or mitigate these and other possible lingering future negative impacts from COVID-19, though it remains difficult to predict any of these factors. Furthermore, the backlog of accumulated court and arbitration proceedings that grew as a result of the pandemic during 2020 and 2021 has receded, with certain disputes having been resolved in 2022 and 2023 and other settlement conferences and trial dates now scheduled or being scheduled. We experienced a record operating cash flow in 2022 and strong operating cash flow for the first half of 2023, and we expect strong operating cash flows to continue for the remainder of 2023, based on projected cash collections, both from project execution activities and the resolution of additional outstanding claims and unapproved change orders.
Cash and Working Capital
Cash and cash equivalents were $263.5 million as of June 30, 2023 compared to $259.4 million as of December 31, 2022. Cash immediately available for general corporate purposes was $65.1 million and $47.7 million as of June 30, 2023 and December 31, 2022, 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 is available only for joint venture-related uses, including distributions to joint venture partners. In addition, our restricted cash and restricted investments totaled $108.2 million as of June 30, 2023 compared to $106.0 million as of December 31, 2022. Restricted cash and restricted investments at June 30, 2023 were primarily held to secure insurance-related contingent obligations.
During the six months ended June 30, 2023, net cash provided by operating activities was $77.7 million. The net cash provided by operating activities was primarily due to a decrease in investments in project working capital, partially offset by cash utilized by earnings sources. The decrease in investments in project working capital was primarily due to a decrease in costs and estimated earnings in excess of billings (“CIE”) and an increase in billings in excess of costs and estimated earnings (“BIE”), partially offset by an increase in accounts receivable. During the six months ended June 30, 2022, net cash provided by operating activities was $178.7 million, which was the largest operating cash flow for the first six months of any year since the merger between Tutor-Saliba Corporation and Perini Corporation in 2008. The net cash provided by operating activities for the first six months of 2022 was primarily due to a decrease in investments in project working capital partially offset by cash utilized by earnings sources. The decrease in investments in project working capital was primarily due to improved collection activity, as reflected by an increase in BIE and a decrease in accounts receivable.
Cash flow from operating activities decreased $101.0 million when comparing the first six months of 2023 with the same period in 2022. The decrease in cash flow from operating activities for the first six months of 2023 compared to the first six months of 2022 primarily resulted from a smaller current-year decrease in investment in working capital as compared to the same period last year. The smaller decrease in investment in working capital in the 2023 period was primarily due to a current-year increase in accounts receivable compared to a decrease in the prior-year period and a smaller current-year increase in BIE compared to the same period last year, partially offset by a current-year decrease in CIE compared to an increase last year. Both periods were positively impacted by collections associated with previously disputed matters.
Net cash used in investing activities during the first six months of 2023 was $29.2 million, primarily due to the acquisition of property and equipment for projects (i.e., capital expenditures) totaling $30.6 million, as well as net cash used in investment transactions of $5.3 million, partially offset by proceeds from the sale of property and equipment of $6.8 million. Net cash used
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in investing activities during the first six months of 2022 was $27.9 million due to the acquisition of property and equipment for projects totaling $28.8 million, as well as net cash used in investment transactions of $5.5 million, partially offset by proceeds from the sale of property and equipment of $6.4 million.
Net cash used in financing activities was $47.9 million for the first six months of 2023, which was primarily driven by a $33.8 million net repayment of debt and $13.3 million of net distributions to noncontrolling interests. Net cash used in financing activities was $48.4 million for the first six months of 2022, which was primarily driven by a $26.9 million net repayment of debt and $20.5 million of net distributions to noncontrolling interests.
At June 30, 2023, we had working capital of $1.6 billion, a ratio of current assets to current liabilities of 1.81 and a ratio of debt to equity of 0.68, compared to working capital of $1.7 billion, a ratio of current assets to current liabilities of 1.87 and a ratio of debt to equity of 0.66 at December 31, 2022.
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 “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 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 Revolver will mature on January 30, 2025 (subject to certain further exceptions).
The 2020 Credit Agreement requires the Company to make prepayments on the Term Loan B in connection with certain asset sales, receipts of insurance proceeds, incurrences of certain indebtedness and annual excess cash flow (in each case, subject to certain customary exceptions). The Company made a $44.0 million prepayment of principal on the Term Loan B in April 2023. The prepayment resulted from our record operating cash flow in 2022, which produced “excess” cash flow under the terms of the 2020 Credit Agreement, as discussed above.
Borrowings under the 2020 Credit Agreement bear interest at variable rates, which have increased since the latter part of 2022 due to changes in market conditions that resulted in increases in SOFR (and LIBOR prior to the transition to SOFR), in the case of the Term Loan B, and the administrative agent’s prime lending rate, in the case of the Revolver. Effective May 2, 2023, the 2020 Credit Agreement was amended to transition the Company’s original LIBOR option in respect of the Term Loan B to Adjusted Term SOFR. The average borrowing rates on the Term Loan B and the Revolver for the six months ended June 30, 2023 were approximately 9.7% and 11.8%, respectively. At June 30, 2023, the borrowing rates on the Term Loan B and the Revolver were 10.3% and 12.0%, respectively. For more information regarding the terms of our 2020 Credit Agreement, refer to Note 8 of the Notes to Condensed Consolidated Financial Statements.
The table below presents our actual and required 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 | ||||||||
| June 30, 2023 | ||||||||
| Actual | Required | |||||||
| First lien net leverage ratio | 2.23 to 1.00 | ≤ 3.00 : 1.00 | ||||||
On October 31, 2022, the 2020 Credit Agreement was amended to increase the maximum First Lien Net Leverage Ratio covenant level for certain fiscal quarters. On March 10, 2023, the 2020 Credit Agreement was further amended to set the maximum First Lien Net Leverage Ratio covenant level to 3.50:1.00, effective the fiscal quarter ended December 31, 2022, and increasing to 3.75:1.00 for the fiscal quarter ending March 31, 2023 and subsequently stepping down to 3.00:1.00 for the fiscal quarter ending June 30, 2023, 2.50:1.00 for the fiscal quarter ending September 30, 2023 and 2.25:1.00 for the fiscal quarter ending December 31, 2023 and each fiscal quarter thereafter. As of June 30, 2023, we were in compliance and expect to continue to be in compliance with the covenants under the 2020 Credit Agreement.
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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, 2022.
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, 2022. 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, 2022.
Recently Issued Accounting Pronouncements
There were no new accounting pronouncements issued by the Financial Accounting Standards Board during the three and six months ended June 30, 2023 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, 2022.
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, 2022, 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, 2022.
Item 4. Mine Safety Disclosures
Section 1503 of the Dodd-Frank Wall Street Reform and Consumer Protection 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 own or operate any mines; however, we may be considered a mine operator as defined under the Mine Act because we provide construction services to customers in the mining industry. Accordingly, we provide information regarding mine safety violations and other mining regulation matters in Exhibit 95 to this Form 10-Q.
Item 5. Other Information
(c) Trading Plans
During the quarter ended June 30, 2023, no director or Section 16 officer adopted or terminated any Rule 10b5-1 trading arrangements or non-Rule 10b5-1 trading arrangements (in each case, as defined in Item 408(a) of Regulation S-K)
Item 6. Exhibits
| Exhibits | Description | ||||
| 10.1* | |||||
| 31.1 | |||||
| 31.2 | |||||
| 32.1 | |||||
| 32.2 | |||||
| 95 | |||||
| 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 June 30, 2023, 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: August 4, 2023 | By: | /s/ Gary G. Smalley | ||||||
| Gary G. Smalley | ||||||||
| Executive Vice President and Chief Financial Officer | ||||||||
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Exhibit 10.1
Execution Version
TRANSITION SERVICES AND SEPARATION AGREEMENT
This TRANSITION SERVICES AND SEPARATION AGREEMENT (this “Agreement”) is dated as of June 30, 2023 by and between Tutor Perini Corporation (the “Company”) and Wendy A. Hallgren (“Executive”). Executive and the Company are each referred to herein as a “Party” and collectively as the “Parties.”
WHEREAS, Executive and the Company have agreed that Executive’s employment with the Company terminated effective as of June 30, 2023 (the “Termination Date”); and
WHEREAS, Executive and the Company wish to set forth the terms and conditions of Executive’s transition of duties and post-employment relationship with the Company and the related rights and obligations of the Parties, each as described in this Agreement.
NOW, THEREFORE, in consideration of the promises set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties hereby agree as follows:
1. Resignation; Transition; Termination of Employment.
(a) Resignation. Effective as of the Termination Date, Executive hereby resigns her positions as Executive Vice President and General Counsel of the Company as well as all other positions that Executive may hold as an officer or director of any of the Company’s subsidiaries.
(b) Separation Benefits. Provided that Executive (i) executes and does not revoke Executive’s acceptance of this Agreement and (ii) remains in compliance with the terms and conditions set forth in this Agreement, Executive shall be eligible to receive the following payments and benefits, less any applicable taxes and withholdings:
(i) Pro-Rata 2023 Bonus. An aggregate amount equal to $337,500, representing 50% of Executive’s 2023 target annual bonus, which shall be payable in a lump sum to Executive when 2023 annual bonuses are paid to other Company executives, and in all events by March 15, 2024.
(ii) Equity Awards. Notwithstanding the terms of the applicable plan documents and award agreements (collectively, the “Award Agreements”), (1) all outstanding Company equity awards held by Executive as of immediately prior to the Termination Date shall immediately vest in full as of the Termination Date (with any performance-based equity awards vesting at target performance), and (2) all outstanding stock options held by Executive shall remain exercisable through the end of the original term of such stock option.
(iii) Other Benefits. An aggregate amount equal to $1,447,000, payable within 60 days following the Termination Date (provided the Release Revocation Period has expired), which amount includes, among other things, (i) payment for Executive’s accrued, unused paid time-off benefits, and (ii) an amount representing 24 months of premiums for Executive’s and, where applicable her eligible dependents’ continued medical, dental and vision coverage.
(c) Transition Period; Services; Consulting Fee. From the Termination Date through December 31, 2023 (the “Transition Period”), Executive shall serve as a consultant to the Company and shall be reasonably available to provide advice and transition assistance to the Company as is reasonably requested from time to time (the “Transition Services”) by the Company’s board of directors (the “Board”) or its designee (the “Designee,” who as of the date of this Agreement is Gary G. Smalley). Unless mutually agreed between Executive and the
Board or the Designee, Executive shall not be required to devote more time to providing Transition Services than (i) five hours per week for the first month, (ii) four hours per week for the second month, and (iii) 10 hours per month thereafter. Executive may provide the Transition Services remotely or at such location as shall be mutually agreed by Executive and the Board or the Designee. Executive shall perform the Transition Services in good faith and to the best of Executive’s abilities in a diligent, trustworthy, professional and efficient manner.
(i) Transition Services. The Company acknowledges that Executive expects to obtain other employment, and in requesting Transition Services the Company shall reasonably accommodate the requirements of any such other employment of Executive. Although Executive owes continuing ethical obligations to the Company after the Termination Date given her role as former legal counsel for the Company, the Parties acknowledge and agree that the Transition Services are not intended to create an attorney-client relationship between the Company and Executive after the Termination Date.
(ii) Consulting Fees. From the Termination Date until the end of the Transition Period, as compensation for the Transition Services, Executive will receive a monthly consulting fee of $75,000, payable monthly in arrears on the last day of each calendar month in accordance with the Company’s normal vendor payment practices (the “Consulting Fees”). In addition, the Company agrees to reimburse Executive for any reasonable out-of-pocket expenses which Executive incurs as a result of any specific request of the Company in connection with the provision of the Transition Services.
(d) Severance Agreement. Other than the compensation set forth in this Agreement, Executive acknowledges and agrees that Executive is not eligible to receive any severance pay or benefits from the Company or any other Company Party (as defined below), including under the terms of that certain Separation Benefits Agreement between Executive and the Company dated September 17, 2019 (the “Severance Agreement”). The Severance Agreement shall be of no further force and effect following the Termination Date, except with regard to (i) the definitions incorporated herein by reference, and (ii) the indemnification provisions of Section 4 of the Severance Agreement.
(e) Independent Contractor. During the Transition Period, Executive’s relationship with the Company shall be that of an independent contractor. As an independent contractor, Executive shall not participate as an active employee in any employee benefit plan of the Company or an affiliate (other than with respect to the Award Agreements as specified herein). Executive agrees that Executive will be fully and solely responsible for any income or other tax liability imposed on Executive in Executive’s capacity as an independent contractor. It is not the intention of the Parties to create, by virtue of this Agreement, any employment relationship, trust, partnership or joint venture between Executive and the Company or any of its affiliates, to make them legal representatives or agents of each other or to create any fiduciary relationship or additional contractual relationship among them except as specifically provided in this Agreement.
(f) Termination of Transition Period. Notwithstanding anything herein to the contrary, the Transition Period may be terminated (i) by the Company due to Executive’s material breach of this Agreement, which remains uncured for ten business days following delivery of written notice from the Company to Executive of such breach, or by the Company for Cause, (ii) by the Company as a result of Executive’s death or Disability or (iii) by Executive upon delivery of no less than 30 days’ prior written notice thereof. In the event of such earlier termination of the Transition Period pursuant to clauses (i) or (iii), Executive shall receive no further payments hereunder. In the event of such earlier termination of the Transition Period pursuant to clause (ii), Executive (or her estate or personal representative) shall be entitled to
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receive any unpaid amounts pursuant to Sections 1(b)(i), (ii) or (iii) as well as any unpaid Consulting Fees that would have otherwise accrued through the remainder of the Consulting Period. For purposes of this Agreement, the terms “Cause” and “Disability” shall have the meanings assigned to such terms in the Severance Agreement.
2. General Release of Claims.
(a) For good and valuable consideration, including the consideration set forth in Sections 1(b) and 1(c) hereof, Executive knowingly and voluntarily (for and on behalf of Executive, Executive’s family, and Executive’s heirs, executors, administrators and assigns) hereby releases and forever discharges the Company and its affiliates, predecessors, successors and subsidiaries, and the foregoing entities’ respective equity-holders, officers, directors, managers, members, partners, employees, agents, representatives, and other affiliated persons, and the Company’s and its affiliates’ benefit plans (and the fiduciaries and trustees of such plans) (collectively, the “Company Parties”), from liability for, and Executive hereby waives, any and all claims, damages, or causes of action of any kind related to Executive’s employment with any Company Party and any other acts or omissions related to any matter occurring on or prior to the date that Executive executes this Agreement, including (i) any alleged breach of contract, breach of the implied covenant of good faith and fair dealing, infliction of emotional harm, wrongful discharge, harassment, discrimination, retaliation, violation of public policy, defamation, impairment of economic opportunity, or alleged violation through such time of: (A) any federal, state or local anti-discrimination or anti-retaliation law, regulation or ordinance, including the Age Discrimination in Employment Act of 1967 (including as amended by the Older Workers Benefit Protection Act) (“ADEA”), Title VII of the Civil Rights Act of 1964, the Civil Rights Act of 1991, Sections 1981 through 1988 of Title 42 of the United States Code and the Americans with Disabilities Act of 1990; (B) the Employee Retirement Income Security Act of 1974 (“ERISA”); (C) the Immigration Reform Control Act; (D) the National Labor Relations Act; (E) the Occupational Safety and Health Act; (F) the Family and Medical Leave Act of 1993; (G) the California Fair Employment and Housing Act; the California Family Rights Act; the California Labor Code; the California Business & Professions Code Section 17200; the California Constitution; the California Family Rights Act; the California Workers’ Compensation Act; the California Equal Pay Law; the California WARN Act; the California False Claims Act, and the California Corporate Criminal Liability Act; (H) any federal, state or local wage and hour law; (I) any other local, state or federal law, regulation or ordinance; or (J) any public policy, contract, tort, or common law claim; (ii) any allegation for costs, fees, or other expenses including attorneys’ fees incurred in or with respect to a Released Claim (as defined below); and (iii) any claim for compensation or benefits of any kind not expressly set forth in this Agreement (collectively, the “Released Claims”). This Agreement is not intended to indicate that any such claims exist or that, if they do exist, they are meritorious. Rather, Executive is simply agreeing that, in exchange for the consideration received by Executive pursuant to this Agreement, any and all potential claims of this nature that Executive may have against the Company Parties, regardless of whether they actually exist, are expressly settled, compromised and waived. THIS RELEASE INCLUDES MATTERS ATTRIBUTABLE TO THE SOLE OR PARTIAL NEGLIGENCE (WHETHER GROSS OR SIMPLE) OR OTHER FAULT, INCLUDING STRICT LIABILITY, OF ANY OF THE COMPANY PARTIES.
(b) In no event shall the Released Claims include (i) any claim that arises after the date that Executive signs this Agreement; (ii) any claim to vested benefits under an employee benefit plan that is subject to ERISA; (iii) any claim for breach of, or otherwise arising out of, this Agreement; or (iv) any claim for indemnification, advancement of expenses or D&O liability insurance coverage under any indemnification agreement with the Company, including, but not limited to, those contained in the Severance Agreement or the Company’s governing documents or the Company’s D&O insurance policies. Further notwithstanding this release of liability,
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nothing in this Agreement prevents Executive from filing any non-legally waivable claim (including a challenge to the validity of this Agreement) with the Equal Employment Opportunity Commission (“EEOC”), the National Labor Relations Board (“NLRB”), the California Civil Rights Department (“CRD”), or other comparable state or local agency or participating in (or cooperating with) any investigation or proceeding conducted by the EEOC, NLRB, CRD or other comparable state or local agency or cooperating in any such investigation or proceeding; however, Executive understands and agrees that Executive is waiving any and all rights to recover any monetary or personal relief from a Company Party as a result of such EEOC, NLRB, CRD or other comparable state or local agency or proceeding or subsequent legal actions. Further, nothing in this Agreement prohibits or restricts Executive from filing a charge or complaint with, or cooperating in any investigation with, the Securities and Exchange Commission, the Financial Industry Regulatory Authority, or any other governmental agency, entity or authority (each, a “Government Agency”). This Agreement does not limit Executive’s right to receive an award for information provided to a Government Agency.
(c) By signing below, Executive expressly waives any rights or benefits of Section 1542 of the Civil Code of the State of California, which provides as follows:
“A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS THAT THE CREDITOR OR RELEASING PARTY DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE AND THAT, IF KNOWN BY HIM OR HER, WOULD HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR OR RELEASED PARTY.”
3. Representations and Warranties Regarding Claims; Covenant Not to Sue.
(a) Executive represents and warrants that, as of the time at which Executive signs this Agreement, Executive has not filed or joined any claims, complaints, charges, or lawsuits against any of the Company Parties with any governmental agency or with any state or federal court or arbitrator for, or with respect to, a matter, claim, or incident that occurred or arose out of one or more occurrences that took place on or prior to the time at which Executive signs this Agreement. Executive further represents and warrants that Executive has not made any assignment, sale, delivery, transfer or conveyance of any rights Executive has asserted or may have against any of the Company Parties with respect to any Released Claim.
(b) In addition to waiving and releasing the Released Claims, Executive agrees never to sue any Company Party in any forum for any reason arising out of Executive’s employment with the Company, including but not limited to the Released Claims; provided, however, that Executive may bring a claim against the Company to enforce this Agreement or to challenge the validity of this Agreement under the Age Discrimination in Employment Act and/or the Older Workers Benefit Protection Act. Executive agrees and acknowledges that if she breaks this promise not to sue, then Executive will pay for all costs, including reasonable attorneys’ fees, incurred by the Company or any Company Party in defending any matter or proceeding covered by the promise not to sue.
4. Restrictive Covenants. The Company and Executive acknowledge and agree that during Executive’s employment with the Company and the Transition Period, Executive had and will have access to and may assist in developing Confidential Information (as defined below) and occupied and will occupy a position of trust and confidence with respect to the Company’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 Company against harmful competition and other
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actions by Executive that would result in serious adverse consequences for the Company and any of its affiliates:
(a) Confidential Information. “Confidential Information” means information constituting trade secrets or proprietary information belonging to or regarding the Company 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 Company. Without limiting the foregoing, “Confidential Information” shall include, but shall not be limited to, any of the following information relating to the Company:
(i) information regarding the Company’s business proposals;
(ii) manner of the Company’s operations, and methods of selling or pricing any products or services;
(iii) the identity of persons or entities actually conducting or considering conducting business with the Company, and any information in any form relating to such persons or entities and their relationship or dealings with the Company;
(iv) any trade secret or confidential information of or concerning any business operation or business relationship;
(v) 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;
(vi) 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;
(vii) information concerning the Company’s employees, officers, directors and shareholders; and
(viii) any other trade secret or information of a confidential or proprietary nature. For purposes hereof, “Company” shall include the Company and any entity controlled by, in control of, or under common control with, the Company, any subsidiary, and any joint venture partner of the Company.
(b) Non-Disclosure. During and after the Transition Period, Executive will not knowingly use, disclose or transfer any Confidential Information other than as authorized by the Company or the Designee or within the scope of Executive’s duties with the Company. Anything herein to the contrary notwithstanding, the provisions of this Section 4 shall not apply (i) when disclosure is required by law or by any court, arbitrator, mediator or administrative or legislative
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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 4; or (iv) as to information that is or becomes available to Executive on a non-confidential basis from a source that is entitled to disclose it to Executive. For the avoidance of doubt and in light of Executive’s previous position as attorney for the Company, all information obtained by Executive in her employment concerning legal matters of the Company and its affiliates shall retain its confidential and/or privileged status, and Executive shall continue to treat all such information as privileged and/or confidential in accordance with applicable rules.
(c) Materials. Executive will not remove any Confidential Information or any other property of the Company or any of its affiliates from the Company’s premises or make copies of such materials except for normal and customary use in the Company’s business. Executive will return to the Company all Confidential Information and copies thereof and all other property of the Company or any of its affiliates at any time upon the request of the Company and in any event promptly after termination or expiration of the Transition Period. Executive agrees to identify and return to the Company any copies of any Confidential Information within Executive’s control after Executive ceases to provide services to the Company. Anything to the contrary notwithstanding, nothing in this Section 4 shall prevent Executive from retaining a home computer, papers and other materials of a personal nature, including diaries, calendars and information relating to her compensation or relating to reimbursement of expenses, and information that she reasonably believes may be needed for tax purposes.
(d) Non-Disparagement. Executive agrees not to make negative comments about or otherwise disparage the Company or its then-current or former officers, directors, employees, agents, projects or services. The Company shall instruct its executive officers and the members of the Board not to make negative comments about or otherwise disparage Executive. The foregoing shall not be violated by truthful statements in response to legal process, Company governmental testimony or filings, or administrative or arbitral proceedings (including, without limitation, depositions in connection with such proceedings). In addition, nothing in this Agreement prevents Executive from discussing or disclosing information about unlawful acts in the workplace, such as harassment or discrimination or any other conduct that Executive has reason to believe is unlawful.
(e) Defend Trade Secrets Act. Pursuant to The Defend Trade Secrets Act, 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 Company for retaliation based on the reporting of a suspected violation of law, may disclose a trade secret to her 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.
(f) Enforcement. Executive acknowledges that in the event of any breach of this Section 4, the business interests of the Company and its affiliates will be irreparably injured, the full extent of the damages to the Company and its affiliates will be impossible to ascertain, monetary damages will not be an adequate remedy for the Company and its affiliates, and the Company 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,
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which Executive expressly waives. Executive further agrees that any breach of this Agreement by the Company shall not release Executive from compliance with her obligations under this Section 4, so long as the Company fully complies with its obligations under Section 1.
(g) Non-Exclusive. Executive acknowledges that this Section 4 is intended to supplement, and not supersede, any confidentiality, proprietary information, or similar restrictive covenants agreements that may be in place between the Company and Executive.
5. Cooperation. Executive agrees to reasonably cooperate with the Company in any internal investigation, any administrative, regulatory, or judicial proceeding or any dispute with a third party. Executive understands and agrees that Executive’s cooperation may include, but not be limited to, making Executive available to the Company upon reasonable notice for interviews and factual investigations; appearing at the Company’s request to give testimony without requiring service of a subpoena or other legal process; volunteering to the Company pertinent information received by Executive in Executive’s capacity as an Executive; and turning over to the Company all relevant documents which are or may come into Executive’s possession in Executive’s capacity an Executive or otherwise, all at times and on schedules that are reasonably consistent with Executive’s other permitted activities and commitments. The Company shall pay all reasonable expenses incurred by Executive in providing such cooperation.
6. Executive’s Acknowledgements. Executive acknowledges and agrees that the release given above includes a waiver and release of any and all claims which Executive has or may have against the Company Parties, individually and collectively, including, without limitation, any and all claims under the ADEA. The waiver and release set forth above does not waive rights or claims that may arise under the ADEA after the date on which Executive signs this Agreement. By executing and delivering this Agreement, Executive expressly acknowledges that:
(a) Executive has been given at least 21 days to review and consider this Agreement. If Executive signs this Agreement before the expiration of 21 days after Executive’s receipt of this Agreement, Executive has knowingly and voluntarily waived any longer consideration period than the one provided to Executive. No changes (whether material or immaterial) to this Agreement shall restart the running of this 21-day period;
(b) Executive is not induced by the Company through fraud, misrepresentation or a threat to withdraw or alter the offer prior to the expiration of 21 days after Executive’s receipt of this Agreement or by providing different terms to those who sign such an agreement before the expiration of such time period;
(c) Executive is receiving, pursuant to this Agreement, consideration in addition to anything of value to which Executive is already entitled;
(d) Executive has been advised, and hereby is advised in writing, to discuss this Agreement with an attorney of Executive’s choice and that Executive has had an adequate opportunity to do so prior to executing this Agreement;
(e) Executive fully understands the final and binding effect of this Agreement; the only promises made to Executive to sign this Agreement are those stated herein; and Executive is signing this Agreement knowingly, voluntarily and of Executive’s own free will, and that Executive understands and agrees to each of the terms of this Agreement;
(f) The only matters relied upon by Executive in causing Executive to sign this Agreement are the provisions set forth in writing within the four corners of this Agreement; and
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(g) No Company Party has provided any tax or legal advice regarding this Agreement, and Executive has had an adequate opportunity to receive sufficient tax and legal advice from advisors of Executive’s own choosing such that Executive enters into this Agreement with full understanding of the tax and legal implications thereof.
7. Revocation Right. Notwithstanding the initial effectiveness of this Agreement upon execution by the Parties, Executive may revoke the delivery (and therefore the effectiveness) of this Agreement within the seven-day period beginning on the date that she signs this Agreement (such seven-day period being referred to herein as the “Release Revocation Period”). To be effective, such revocation must be in writing signed by Executive and must be delivered personally or by courier to the Company so that it is received by Gary G. Smalley, no later than 11:59 pm CT on the last day of the Release Revocation Period. If an effective revocation is delivered in the foregoing manner and timeframe, the release of claims set forth in Section 2 will be of no force or effect and Executive will not receive the benefits set forth in Sections 1(b) and 1(c) hereof.
8. Governing Law; Arbitration. This Agreement shall be governed by the laws of the State of California without reference to its principles of conflict of law. Any dispute or claim arising out of or in connection with this Agreement or relating in any way to Executive’s employment or Transition Services, including any dispute regarding the enforceability, interpretation, construction or breach of this Agreement, will be resolved exclusively by binding arbitration in accordance with the then-applicable JAMS rules, policies, and/or procedures for employment-related disputes provided, however, that any claims, which by law may not be submitted to arbitration are not covered by this arbitration provision. This means that both Executive and the Company give up the right to have any dispute decided in court by a jury; instead, a neutral arbitrator whose decision is final and binding will resolve it, subject to judicial review as provided by law. Furthermore, any such dispute or claim shall be brought in an individual capacity, and not as a plaintiff or class member in any purported or actual class or collective action proceeding except where applicable law prohibits a class or collective action waiver. A copy of the JAMS Employment Arbitration Rules and Procedures can be found online at www.jamsadr.com/rules-employment-arbitration/. There will be one arbitrator appointed in accordance with said rules and a written arbitration decision will reveal the essential findings and conclusions on which the award is based. The arbitrator will conduct any arbitration consistent with the rules. For any claims arising out of Executive’s employment or the Transition Services, the Company will pay for all arbitration fees that Executive would not otherwise incur in a court of law and that are unique for arbitration. The arbitrator will have the authority to determine the arbitrability of a dispute between the parties. The arbitrator will not have authority to award attorneys’ fees unless a statute or contract at issue in the dispute authorizes the award of attorneys’ fees to the prevailing party, in which case the arbitrator will have the authority to make an award of attorneys’ fees as required or permitted by applicable law. If there is a dispute as to who is the prevailing party in the arbitration, the arbitrator will decide this issue. This Agreement is intended to supplement, and not supersede, any remedies or claims that may be available under applicable common and/or statutory law, including, without limitation, any common law and/or statutory claims relating to the misappropriation of trade secrets and/or unfair business practices. For the avoidance of doubt, the arbitration provisions contained herein supersede all prior and contemporaneous agreements and understandings, oral or written, between Executive and any Company Party with regard to such subject matter.
9. Counterparts. This Agreement may be executed in several counterparts, including by .PDF or .GIF attachment to email or by facsimile, each of which is deemed to be an original, and all of which taken together constitute one and the same agreement.
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10. Amendment; Entire Agreement. This Agreement may not be changed orally but only by an agreement in writing agreed to and signed by the Company and Executive. This Agreement and the Award Agreements constitute the entire agreement of the Parties with regard to the subject matter hereof and, unless otherwise expressly stated herein, supersede all prior and contemporaneous agreements and understandings, oral or written, between Executive and any Company Party with regard to the subject matter hereof.
11. Third-Party Beneficiaries. Executive expressly acknowledges and agrees that each Company Party that is not a party to this Agreement shall be a third-party beneficiary of Section 2 hereof and entitled to enforce such provisions as if it were a party hereto.
12. Further Assurances. Executive shall, and shall cause Executive’s affiliates, representatives and agents to, from time to time at the request of the Company and without any additional consideration, furnish the Company with such further information or assurances, execute and deliver such additional documents, instruments and conveyances, and take such other actions and do such other things, as may be reasonably necessary or desirable, as determined in the sole discretion of the Company, to carry out the provisions of this Agreement.
13. Severability; Waiver. Any term or provision of this Agreement (or part thereof) that renders such term or provision (or part thereof) or any other term or provision (or part thereof) hereof invalid or unenforceable in any respect shall be severable and shall be modified or severed to the extent necessary to avoid rendering such term or provision (or part thereof) invalid or unenforceable, and such modification or severance shall be accomplished in the manner that most nearly preserves the benefit of the Parties’ bargain hereunder. For an abundance of clarity, Executive and the Company intend for this Section 13 to apply to Section 8 hereof. Any Party’s waiver of another Party’s compliance with any provision of this Agreement is not a waiver of any other provision of this Agreement or of any subsequent breach by such Party of a provision of this Agreement. No delay on the part of any Party in exercising any right, power or privilege hereunder shall operate as a waiver thereof.
14. Interpretation. The Section headings have been inserted for purposes of convenience and shall not be used for interpretive purposes. The words “hereof,” “herein” and “hereunder” and other compounds of the word “here” shall refer to the entire Agreement and not to any particular provision hereof. The use herein of the word “including” following any general statement, term or matter shall not be construed to limit such statement, term or matter to the specific items or matters set forth immediately following such word or to similar items or matters, whether or not non-limiting language (such as “without limitation”, “but not limited to”, or words of similar import) is used with reference thereto, but rather shall be deemed to refer to all other items or matters that could reasonably fall within the broadest possible scope of such general statement, term or matter. The word “or” as used herein is not exclusive and is deemed to have the meaning “and/or.” Unless the context requires otherwise, all references herein to a law, agreement, instrument or other document shall be deemed to refer to such law, agreement, instrument or other document as amended, supplemented, modified and restated from time to time to the extent permitted by the provisions thereof. Neither this Agreement nor any uncertainty or ambiguity herein shall be construed against any Party, whether under any rule of construction or otherwise. This Agreement has been reviewed by each of the Parties and shall be construed and interpreted according to the ordinary meaning of the words used so as to fairly accomplish the purposes and intentions of the Parties.
15. No Assignment. No right to receive payments and benefits under this Agreement shall be subject to set off, offset, anticipation, commutation, alienation, assignment, encumbrance, charge, pledge or hypothecation or to execution, attachment, levy, or similar process or assignment by operation of law.
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16. Withholdings; Deductions. The Company may withhold and deduct from any payments or benefits made or to be made pursuant to this Agreement (a) all federal, state, local and other taxes as may be required pursuant to any law or governmental regulation or ruling and (b) any other deductions consented to in writing by Executive.
17. Notice. 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 e-mail addressed as follows:
If to the Company:
Tutor Perini Corporation
15901 Olden Street
Sylmar, California 91342
Attention: Gary G. Smalley, Executive Vice President and Chief Financial Officer
Email: gary.smalley@tutorperini.com
If to Executive:
Wendy Hallgren
c/o Dennis P. Duffy
Kane Russell Coleman Logan
901 Main Street, Suite 5200
Dallas, TX 75202
Email: dduffy@krcl.com
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 e-mail 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.
18. Section 409A. This Agreement and the benefits provided hereunder are intended be exempt from, or compliant with, the requirements of Section 409A of the Internal Revenue Code of 1986, as amended, and the Treasury regulations and other guidance issued thereunder (collectively, “Section 409A”) and shall be construed and administered in accordance with such intent. Each installment payment under this Agreement shall be deemed and treated as a separate payment for purposes of Section 409A. Notwithstanding the foregoing, the Company makes no representations that the benefits provided under this Agreement are exempt from the requirements of Section 409A and in no event shall the Company or any other Company Party be liable for all or any portion of any taxes, penalties, interest or other expenses that may be incurred by Executive on account of non-compliance with Section 409A.
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Execution Version
IN WITNESS WHEREOF, the Parties have executed this Agreement, dated as of June 30, 2023, effective for all purposes as provided above.
EXECUTIVE
/s/ Wendy A. Hallgren
Wendy A. Hallgren
TUTOR PERINI CORPORATION
By: /s/ Gary G. Smalley
Name: Gary G. Smalley
Title: EVP & CFO
Signature Page to
Transition Services and Separation Agreement
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: August 4, 2023 | /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: August 4, 2023 | /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 June 30, 2023 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: August 4, 2023 | /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 June 30, 2023 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: August 4, 2023 | /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.
Exhibit 95
MINE SAFETY DISCLOSURE
Section 1503 of the Dodd-Frank Wall Street Reform and Consumer Protection 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 (“MSHA”). We do not act as the owner of any mines; however, we may be considered a mine operator as defined under the Mine Act because we provide construction services to customers in the mining industry. Due to timing and other factors, the data below may not agree with the mine data retrieval system maintained by MSHA.
The following table provides information for the quarter ended June 30, 2023.
Mine (1) | Mine Act §104 Violations (2) | Mine Act §104(b) Orders (3) | Mine Act §104(d) Citations and Orders (4) | Mine Act §110(b)(2) Violations (5) | Mine Act §107(a) Orders (6) | Proposed Assessments from MSHA (In dollars ($)) | Mining Related Fatalities | Mine Act §104(e) Notice (yes/no) (7) | Pending Legal Action before Federal Mine Safety and Health Review Commission (yes/no) | |||||||||||||||||||||||||||||||||||||||||||||||
| Warrior Met - No. 4 | 3 | — | — | — | — | $ | 2,838 | — | No | No | ||||||||||||||||||||||||||||||||||||||||||||||
(1)United States mine.
(2)The total number of violations received from MSHA under §104 of the Mine Act, which includes citations for health or safety standards that could significantly and substantially contribute to a serious injury if left unabated.
(3)The total number of orders issued by MSHA under §104(b) of the Mine Act, which represents a failure to abate a citation under §104(a) within the period of time prescribed by MSHA.
(4)The total number of citations and orders issued by MSHA under §104(d) of the Mine Act for unwarrantable failure to comply with mandatory health or safety standards.
(5)The total number of flagrant violations issued by MSHA under §110(b)(2) of the Mine Act.
(6)The total number of orders issued by MSHA under §107(a) of the Mine Act for situations in which MSHA determined an imminent danger existed.
(7)A written notice from the MSHA regarding a pattern of violations, or a potential to have such pattern under §104(e) of the Mine Act.