Item 1. Business
General
The Shaw Group Inc. (a Louisiana corporation) and its wholly owned and majority owned subsidiaries (collectively referred to herein as Shaw, the Company, we, us or our) is a leading global provider of technology, engineering, procurement, construction, maintenance, fabrication, manufacturing, consulting, remediation and facilities management services to a diverse client base that includes multinational and national oil companies and industrial corporations, regulated utilities, and U.S. Government agencies. We have developed and acquired significant intellectual property, including induction pipe bending technology and environmental decontamination technologies. Through our investments, we have certain exclusive opportunities with Toshiba Corp. (Toshiba) for providing EPC services for new Toshiba Advanced Boiling Water Reactor (ABWR) nuclear power plants worldwide, except Japan and Vietnam. We believe our technologies provide an advantage and will help us to compete on a long term basis with low cost competitors from developing countries that are likely to emerge.
Shaw has significant experience in effectively managing subcontractors, craft labor and materials procurement associated with the construction of electric power generation plants and other industrial facilities. We have the versatility to function on any given project as the primary contractor, subcontractor, or quality assurance construction manager. We provide technical and economic analysis and consulting to a global client base primarily in the fossil, nuclear power, environmental, energy and chemicals industries.
We report our financial results using August 31 as our fiscal year end. Accordingly, our fiscal 2012 quarter end dates are as follows:
First Quarter
November 30
Second Quarter
February 29
Third Quarter
May 31
Fourth Quarter
August 31
Our stock trades on the NYSE under the ticker symbol “SHAW.” We are a Louisiana corporation with our executive offices located at 4171 Essen Lane, Baton Rouge, Louisiana, 70809, and our telephone number is (225) 932-2500.
History
In 1986, J.M. Bernhard Jr., our chairman, president and chief executive officer, and two colleagues, founded Shaw as a pipe fabrication shop in Baton Rouge, Louisiana. Since then we have significantly expanded our expertise and breadth of services through organic growth and strategic acquisitions.
In July 2000, we acquired certain assets of Stone & Webster, Inc. (Stone & Webster), a leading global provider of EPC, construction management and consulting services to the energy, chemical, nuclear, environmental and infrastructure industries. Combined with our existing pipe fabrication and construction capabilities, the Stone & Webster acquisition transformed Shaw into a vertically integrated EPC services company.
Our May 2002 acquisition of select assets of the IT Group, Inc. (IT Group) significantly expanded our position in the environmental remediation and infrastructure markets, particularly in the U.S. government services sector. The acquisition further diversified our clientele and contract mix and provided new opportunities to cross-sell services, such as environmental remediation, to our existing EPC clients.
In October 2006, we acquired a 20% interest in two companies (our Investment in Westinghouse) who, together with their subsidiaries, are collectively referred to as the Westinghouse Group (Westinghouse). Westinghouse provides advanced nuclear plant designs and equipment, fuel and a wide range of other products and services to the owners and operators of nuclear power plants. We intend to divest our Investment in Westinghouse no later than January 2013. For an explanation of this investment, see Part I, Item 1 - Our Business Segments - Investment in Westinghouse Segment, below.
On August 31, 2012, we completed our previously announced divestiture of substantially all of the business of the E&C segment to Technip S.A. (the “E&C Sale”).
Also on August 31, 2012, the E&C segment’s Toronto-based operations that were not included in the E&C Sale filed for bankruptcy. The directors of these subsidiaries determined that the companies had insufficient income and assets to continue as ongoing operations. A trustee in bankruptcy has been appointed, and the first meeting of creditors was held on September 24, 2012. We deconsolidated these Toronto-based operations as of August 31, 2012.
Remaining in the E&C segment as of August 31, 2012, are our obligations under an engineering, procurement and construction contract associated with a large ethylene plant in southeast Asia that is nearing completion. We also retained certain consulting services provided to the energy and petrochemical market, which were incorporated into our E&I segment.
Proposed Transaction Agreement
On July 30, 2012, we announced that we signed a Transaction Agreement with Chicago Bridge & Iron Company N.V. (CB&I) under which CB&I will acquire us in a cash and stock transaction valued at approximately $3.2 billion based on the trading price of CB&I common stock as of October 15, 2012 (Transaction Agreement). Under the terms of the Transaction Agreement, CB&I will acquire Shaw for $41.00 in cash and 0.12883 shares of CB&I common stock for each common share of Shaw stock owned. The proposed combination of CB&I and Shaw will create one of the world’s largest engineering and construction companies focused on the global energy industry. Both companies believe this agreement will create value through a combined company with broader participation in a robust energy market.
We currently expect to complete the Transaction during the first quarter of calendar 2013. The Transaction is subject to certain regulatory approvals, the approval of a majority of CB&I’s shareholders and the approval of our shareholders through the affirmative vote of (i) the holders of at least 75% of the outstanding shares of common stock entitled to vote on the matter (Supermajority Threshold), which excludes shares owned by any person that, together with its affiliates, beneficially owns in the aggregate 5% or more of the outstanding shares of our common stock as of the record date, other than any trustee of the Shaw 401(k) Plan (Related Person), as well as (ii) at least a majority of the voting power present, each in accordance with our Articles of Incorporation.
The Transaction is also subject to a number of additional conditions, including, but not limited to, the consummation of the sale to Technip S.A. of substantially all of the E&C business, which was completed on August 31, 2012; the valid exercise of the Westinghouse Put Options, which were exercised on October 6, 2012; our possession of at least $800 million of unrestricted cash (as “Unrestricted Cash” is defined in the Transaction Agreement), as of the closing date; EBITDA ( “Company EBITDA” as defined in the Transaction Agreement) for the period of four consecutive fiscal quarters ending prior to the closing date of the Transaction of not less than $200 million; and net indebtedness for borrowed money ( “Net Indebtedness for Borrowed Money” as defined in the Transaction Agreement) not exceeding $100 million as of the closing date of the Transaction.
After the announcement of the Transaction Agreement, several of our purported shareholders filed lawsuits against the Company and its directors alleging various breaches of fiduciary duties in connection with the process that led to the board’s approval of the Transaction Agreement and the terms of the Transaction Agreement, including the consideration offered by CB&I. We believe that these lawsuits are without merit and intend to contest them vigorously.
Our Business Segments
Because of the wide variety of our technical services and our vertical integration, we believe we are uniquely positioned to provide seamless services to our clients through the lifespan of projects, from the concept, design, building and construction phases to the maintenance, operations, decommissioning and decontamination phases. We believe our direct-hire construction capabilities provide us with a competitive advantage in many of the industries we serve.
Our segments strive to support and complement each other, enabling Shaw to rely on internal resources for much of our work.
Currently, we are organized under the following seven reportable segments:
• Power,
• Plant Services,
• Environmental & Infrastructure (E&I),
• Fabrication & Manufacturing (F&M),
• Energy & Chemicals (E&C),
• Investment in Westinghouse and
• Corporate
For detailed financial information and geographical sales information regarding each segment, see Part II, Item 7 - Management’s Discussion and Analysis of Financial Condition and Results of Operations and Note 16 - Business Segments included in our consolidated financial statements beginning on page. In addition, see Item 1A
Item 1A. Risk Factors
The risks described below could materially and adversely affect our stock price, business, financial condition and results of operations and the actual outcome of matters as to which forward-looking statements are made in this Form 10-K. The risk factors described below are not the only ones we face. Our stock price, business, financial condition and results of operations also may be affected by additional factors that are not currently known to us or that we currently consider immaterial or that are not specific to us, such as general economic conditions.
The categorization of risks set forth below is meant to help you better understand the risks facing our business and is not intended to limit consideration of the possible effects of these risks to the listed categories. Any adverse effects related to the risks discussed below may, and likely will, adversely affect many aspects of our business.
You should refer to the explanation of the qualifications and limitations on forward-looking statements under Cautionary Statement Regarding Forward-Looking Statements on page 1 in this Form 10-K. All forward-looking statements made by us are qualified by the risk factors described below.
Risks Related to Our Operations
Demand for our products and services is cyclical and vulnerable to economic downturns and reductions in private industry and government spending and/or their ability to meet existing payment obligations. If general economic conditions remain weak or the credit markets deteriorate, we may be unable to recover expenditures and our revenues, profits, and financial condition may be negatively impacted.
The industries we serve historically have been, and will likely continue to be, cyclical in nature and vulnerable to general downturns in the domestic and international economies. Consequently, our results of operations have fluctuated and may continue to fluctuate depending on the demand for products and services from these industries.
Fluctuations in the economy can affect consumers’ demand for electricity and thus our clients’ capital spending priorities. Due to the current economic downturn, many of our clients may face budget shortfalls or may delay capital spending resulting in a decrease in the overall demand for our services. A decrease in federal, state and local tax revenue as well as other economic declines may result in lower government spending. Our clients may find it more difficult to raise capital in the future due to limitations on the availability of credit and other uncertainties in the credit markets. This reduction in spending could have a material adverse effect on our operations.
Our clients may demand better pricing terms and their ability to timely pay our invoices may be affected by an ongoing weak economy. Our business traditionally lags recovery in the economy; therefore, our business may not recover immediately upon any economic improvement. If the economy weakens further or government spending is reduced, then our revenues, net income and overall financial condition may deteriorate. Further, in many instances during the course of a project, we commit and/or pay for products or expenses attributable to our clients with an understanding that the client will pay us per the terms of our commercial contract with them. Our clients may not be able to make such payments to us in a timely manner, or at all, in which case we could be forced to absorb these costs requiring that we commit our financial resources to projects prior to receiving payments from the client. If a client defaults in making its payments on a project in which we have devoted significant financial resources, it could have a material adverse effect on our business or results of operations.
We face substantial competition in each of our business segments.
We face competition from numerous regional, national and international competitors, some of which have greater financial and other resources than we do. Our competitors include well-established, well-financed businesses, both privately and publicly held, including many major energy equipment manufacturers and engineering and construction companies, some engineering companies, internal engineering departments at utilities and some of our clients. The award of many of our contracts is determined by competitive bid. That competition can impact the margin we earn on our contracts or cause us not to win the award. For a discussion of certain specific competitors as well as the impact of competition on our business, please see Part II, Item 7 - Management’s Discussion and Analysis of Financial Condition and Results of Operation.
Our results of operations depend on new contract awards; however, the selection process and timing for performing these contracts are not within our control.
A substantial portion of our revenues is directly or indirectly dependent on winning new contracts. We operate in highly competitive markets and it is difficult to predict whether and when we will be awarded new contracts due to many factors including: the lengthy and complex bidding and selection process, client capital investment decisions, market conditions, available financing, government approvals, permitting and environmental matters. Further, most of those same factors can delay or stop a project. Consequently, we are subject to the risk of losing new awards to competitors and the risk a project may experience significant delay or cancellation - impacting our results of operations and cash flows that fluctuate from quarter to quarter depending on the timing and size of new contract awards
The March 2011 earthquake and tsunami that struck Japan caused significant damage to power and transportation infrastructure, including several nuclear reactors. Potential risks associated with nuclear power production could slow the pace of global licensing and construction of new or planned nuclear power facilities or negatively impact existing facilities’ efforts to extend their operating licenses.
Shaw currently has nuclear construction projects in the U.S. and China, material amounts of which are included in our backlog. While our clients have indicated they intend to move forward with these units, domestic utility companies’ intentions could be challenged if Congress implements a moratorium on building nuclear reactors or the NRC slows the permitting process or adds additional permitting requirements. During 2011, the Chinese government suspended approval of new nuclear projects and conducted safety inspections of all plants under construction. Once China’s revised nuclear development plan is approved, it is expected that the Chinese government will resume its approval process for new nuclear projects. Other governments have announced plans to review and/or delay decisions to review new nuclear projects. Demand for nuclear power could be negatively affected by such action. Because several of our segments deal with nuclear power either directly or indirectly, this could have a material adverse effect on our operations. Further, if current contracts included in our backlog are significantly delayed, modified or canceled, our future revenues and earnings may be materially and adversely impacted.
While many of the contracts in our backlog provide for cancellation fees in the event clients cancel projects, these cancellation fees usually provide for reimbursement of our out-of-pocket costs, revenues for work performed prior to cancellation and a varying percentage of the profits we would have realized had the contract been completed. However, upon cancellation we typically have no contractual right to the total revenues reflected in our backlog for that particular contract.
We provide maintenance services for 45 out of 104 U.S. operating nuclear plants and perform uprates at existing facilities. Should any of our customers fail to extend existing operating licenses, demand for those services may be negatively affected.
The Investment in Westinghouse segment could be materially and adversely affected by the events in Japan to the extent demand diminishes for Westinghouse’s nuclear products, including its AP1000 technology. Toshiba, a Japanese company, is the majority owner of Westinghouse. On October 6, 2012, NEH exercised the Put Options to sell the Westinghouse Equity back to Toshiba. The Westinghouse CRA terminated upon the exercise of the Put Options, and we can provide no assurance as to our ability to attract or retain additional work from Toshiba. See “Risks related to our Investment in Westinghouse could have an adverse effect on us.”
Our backlog of unfilled orders is subject to unexpected adjustments and cancellations and is, therefore, not a reliable indicator of our future revenues or earnings.
At August 31, 2012, our backlog was approximately $17.1 billion. Our backlog consists of projects for which we have legally binding contracts or commitments from clients, including legally binding agreements without defined scope. Commitments may be in the form of written contracts for specific projects, purchase orders or indications of the amounts of time and materials we need to make available for clients’ anticipated projects. Our backlog includes expected revenue based on engineering and design specifications that may not be final and could be revised over time and for government and maintenance contracts that may not specify actual dollar amounts for the work to be performed. For these contracts, we calculate our backlog of estimated work to be performed, based on our knowledge of our clients’ stated intentions or our historic experience. Projects may remain in our backlog for extended periods of time.
There can be no assurance we will realize revenues projected in our backlog or, if realized, such revenues will result in profits. Due to project terminations, suspensions and/or changes in project scope and schedule, we cannot predict with certainty when or if our backlog will be performed. Material delays, cancellations or payment defaults could materially affect our balance sheet, results of operations and cash flow and may reduce the value of our stock. For example, during fiscal year 2012, our customer for our domestic EPC contract for two AP1000 nuclear power units in Florida announced a delay in the plant’s online date to 2024. While we continue to perform limited engineering and support services and our contract with the client remains in effect, we removed a substantial portion of the contract value from our backlog as a result of the extended timeline.
Client cancellations could reduce our backlog, which, among other things, could materially impact the revenues and earnings. Many of the contracts in our backlog provide for cancellation fees in the event clients cancel projects. These cancellation fees usually provide for reimbursement of our out-of-pocket costs, revenues associated with work performed prior to cancellation, and, to varying degrees, a percentage of the profits we would have realized had the contract been completed. However, upon cancellation we typically have no contractual right to the total revenues reflected in our backlog for that particular contract.
The nature of our contracts, particularly our reimbursable and fixed-price contracts, could adversely affect us.
Approximately 48% of our backlog at August 31, 2012, was from cost-reimbursable contracts and the remaining 52% was from contracts that are primarily fixed-price. Revenues and gross profit from both cost-reimbursable and fixed-price contracts can be significantly affected by contract incentives/penalties that may not be known or finalized until the later stages of the contract term. We enter into contractual agreements with clients for some of our EPC services to be performed based on agreed-upon reimbursable costs and labor rates. Some of these contracts provide for the client’s review of our accounting and cost control systems to verify the completeness and accuracy of the reimbursable costs invoiced. These reviews could result in reductions in reimbursable costs and labor rates previously billed to the client.
Under certain hybrid contracts such as reimbursable contracts containing a target price, we agree to the contract price of the project at the time we enter into the contract. While we benefit from costs savings and earnings from approved change orders under target-priced contracts, we are generally unable to recover all cost overruns to the approved contract price. Under certain reimbursable target price contracts, we share with the client any savings up to a negotiated or target ceiling. When costs exceed the negotiated ceiling price, we may be required to reduce our fee or to absorb some or all of the cost overruns.
We also assume the risks related to revenue, cost and gross profit realized on fixed-priced contracts that can vary, sometimes substantially, from the original projections due to changes in a variety of other factors that include, but are not limited to:
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engineering design changes;
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unanticipated technical problems with the equipment being supplied or developed by us, which may require that we spend our own money to remedy the problem;
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changes in the cost of equipment, commodities, materials or labor;
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difficulties in obtaining required permits or approvals;
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changes in laws and regulations;
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changes in labor conditions, including the availability and productivity of labor;
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project modifications creating unanticipated costs;
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delays caused by local weather conditions;
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failure to perform by our project owners, suppliers or subcontractors; and
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general economic conditions.
These risks may be exacerbated by the length of time between signing a contract and completing the project because most fixed-price contracts are long-term. The term of our contracts can be as long as approximately seven years. Long-term, fixed-price contracts are inherently risky and often make us subject to penalties if portions of the project are not completed in accordance with agreed-upon time limits. Therefore, significant losses can result from performing large, long-term projects on a fixed-price basis. These losses may be material, including, in some cases, up to or exceeding the full contract value in certain events of non-performance, and could negatively impact our business, financial condition, results of operations and cash flows.
Many of our client contracts require us to satisfy specified design or EPC milestones in order to receive payment for the work completed or equipment or supplies procured prior to achievement of the applicable milestone. As a result, under these types of arrangements, we may incur significant costs or perform significant amounts of services prior to receipt of payment. If the client determines not to proceed with the completion of the project or if the client defaults on its payment obligations, we may face difficulties in collecting payment of amounts due to us for the costs previously incurred or for the amounts previously expended to purchase equipment or supplies. In addition, many of our clients for large EPC projects are project-specific entities that do not have significant assets other than their interests in the EPC project. It may be difficult for us to collect amounts owed to us by these clients. If we are unable to collect amounts owed to us for these matters, we may be required to record a charge against earnings related to the project, which could result in a material loss.
Our failure to meet contractual schedule or performance requirements could adversely affect our revenue and profitability.
In certain circumstances, we guarantee project completion by a scheduled date or certain performance testing levels. Failure to meet these schedule or performance requirements could result in a reduction of revenues and/or additional costs, and these adjustments could exceed projected profits. A project’s revenues also could be reduced by liquidated damages withheld by clients under contractual penalty provisions, which can be substantial and can accrue on a daily basis. Our costs generally increase from schedule delays and/or could exceed our projections for a particular project. Performance problems for existing and future contracts could cause actual results of operations to differ materially from those anticipated by us and could cause us to suffer damage to our reputation within our industry and our client base. For examples of the kinds of claims that may result from liquidated damages provisions and cost overruns, see Note 20 - Accounting for Claims, Unapproved Change Orders and Incentives on Long-Term Construction Contracts included in our consolidated financial statements beginning on page.
If our joint venture or consortium partners, subcontractors or equipment manufacturers fail to perform their contractual obligations on a project, we could be exposed to the risk of loss, and in some cases, joint and several liability to our clients, loss of reputation and additional financial performance obligations that could result in reduced profits or, in some cases, significant losses.
We often enter into consortium arrangements and joint ventures as part of our Power segment and E&I segment contracts in order to jointly bid and perform a particular project. The success of these consortium agreements and joint ventures depends, in large part, on the satisfactory performance of the contractual obligations by our partners. If our partners do not meet their obligations, the consortium or joint venture may be unable to adequately perform and deliver its contracted services. Under these circumstances, we may be required to incur additional costs, make additional investments and provide additional services to ensure the adequate performance and delivery of the contracted services and/or to pay liquidated damages. Under agreements with joint and several liability, we could be liable for both our obligations and those of our partners. These additional obligations could result in reduced profits or, in some cases, significant losses for us with respect to the joint venture, which could also negatively affect our reputation in the industries we serve. Additionally, we rely on third party partners, equipment manufacturers and third party subcontractors to complete our projects. To the extent our partners cannot execute their portion of the work, are unable to deliver their services, equipment or materials according to the negotiated terms and/or we cannot engage subcontractors or acquire equipment or materials, our ability to complete a project in a timely fashion or at a profit may be impaired. If the amount we are required to pay for these goods and services in an effort to meet our contractual obligations exceeds the amount we have estimated in bidding for fixed-price work, we could experience losses in the performance of these contracts.
If we are unable to form teaming arrangements, particularly for some of our international opportunities, our ability to compete for and win business may be negatively impacted.
In both the private and public sectors, either acting as a prime contractor, a subcontractor or as a member of consortium, we may join with other firms to form a team to compete for a single contract. Because a team can often offer stronger combined qualifications than any firm standing alone, these teaming arrangements can be very important to the success of a particular contract bid process or proposal. This can be particularly true in international operations in which bidding success can be substantially impacted by the presence and /or quality of the local partner. The failure to maintain such relationships in both foreign and domestic markets may impact our ability to win work.
Our government contracts may present risks to us.
We are a major provider of services to U.S. government agencies and therefore are exposed to risks associated with government contracting. Government clients typically can terminate or modify contracts with us at their convenience. As a result, our backlog may be reduced or we may incur a loss if a government agency decides to terminate or modify a contract with us. We are also subject to audits, including audits of our internal controls systems, cost reviews and investigations by government contracting oversight agencies. As a result of an audit, the oversight agency may disallow costs or withhold a percentage of interim payments. Cost disallowances may result in adjustments to previously reported revenues and may require refunding previously collected cash proceeds. In addition, our failure to comply with the terms of one or more of our government contracts or government regulations and statutes could result in our being suspended or debarred from future government projects for a significant period of time, possible civil or criminal fines and penalties and the risk of public scrutiny of our performance, and potential harm to our reputation, each of which could have a material adverse effect on our business. Other remedies that our government clients may seek for improper activities or performance issues include sanctions such as forfeiture of profits and suspension of payments.
Our government contracts present us with other risks as well. Legislatures typically appropriate funds on a year-by-year basis, while contract performance may take more than one year. As a result, our contracts with government agencies may be only partially funded or may be terminated, and we may not realize all of our potential revenues and profits from those contracts. Appropriations and the timing of payment may be influenced by, among other things, the state of the economy, competing political priorities, curtailments in the use of government contracting firms, budget constraints, the timing and amount of tax receipts and the overall level of government expenditures.
For the fiscal year ended August 31, 2012, 90.8% of our E&I segment’s backlog was with U.S. government agencies.
The limitation or the modification of the Price-Anderson Act’s indemnification authority and similar federal programs for nuclear and other potentially hazardous activities, could adversely affect our business.
The Price-Anderson Act (PAA) comprehensively regulates the manufacture, use and storage of radioactive materials, while promoting the nuclear energy industry by offering indemnification to the nuclear industry against liability arising from nuclear incidents at non-military facilities in the U.S. in connection with contractual activity for the DOE, while still ensuring compensation for the general public. The Energy Policy Act of 2005 extended the period of coverage to include all nuclear power reactors issued construction permits through December 31, 2025. Because we provide services to the DOE at nuclear weapons facilities and the nuclear energy industry in the ongoing maintenance and modification, as well as decontamination and decommissioning, of its nuclear energy plants, we are entitled to the indemnification protections under the PAA. Although the PAA’s indemnification provisions are broad, it does not apply to all liabilities that we might incur while performing services as a radioactive materials cleanup contractor for DOE and the nuclear energy industry.
Public Law 85-804 (PL 85-804), which indemnifies government contractors who conduct certain approved contractual activity related to unusually hazardous or nuclear activity, may provide additional or alternative indemnification for such activities. If the contractor protection currently provided by the PAA or PL 85-804 is significantly modified, is not approved for, or does not extend to all of our services, our business could be adversely affected by either our clients’ refusal to retain us for potentially covered projects or our inability to obtain commercially adequate insurance and indemnification.
If the U.S. were to change its support of nuclear power or revoke or limit DOE’s Loan Guarantee Program (LGP), it could have a material adverse effect on our operations.
The U.S. government has been supportive of increased investment in nuclear power. However, if the U.S. government changed its policy or public acceptance of nuclear technology as a means of generating electricity significantly wanes, demand for nuclear power could be negatively affected and potentially increase the regulation of the nuclear power industry. Because several of our segments deal with nuclear power either directly or indirectly, this could have a material adverse effect on our operations.
Some of our clients may rely on DOE’s LGP, under which DOE issues loan guarantees to eligible projects that “avoid, reduce, or sequester air pollutants or anthropogenic emissions of greenhouse gases” and “employ new or significantly improved technologies as compared to technologies in service in the U.S. at the time the guarantee is issued.” If the current administration were to revoke or limit DOE’s LGP, it could make obtaining funding more difficult for many of our clients, which could inhibit their ability to take on new projects and result in a negative impact on our future operations.
We may be exposed to additional risks in our Power segment, as we begin to execute our significant nuclear backlog and book new nuclear awards. These risks include greater backlog concentration in fewer projects, possibly increasing requirements for letters of credit and potential cost overruns, which could have a material adverse effect on our future revenues and liquidity. Additionally, the current economic conditions may impact the pace of the development of nuclear projects.
We expect to convert a significant part of our backlog of nuclear projects in the Power segment into revenues in the future. Nuclear projects may use larger sums of working capital than other projects in this segment and will be concentrated among a few larger clients. As we increase our active projects in the nuclear business and, consequently our reliance in revenues from this business, we may become more dependent on a smaller number of clients. If we lose clients in our nuclear business and are unable to replace them, our revenues could be materially adversely impacted. Additionally, if any of the nuclear projects currently included in our backlog are significantly delayed, modified or canceled, our reported backlog and future earnings may be materially and adversely impacted.
As we convert our nuclear projects from backlog into active construction we may face significantly greater requirements for the provision of letters of credit or other forms of credit enhancements. Together with the construction costs for nuclear plants, which are significantly higher than those for coal- or gas-fired plants, we may be required to significantly expand our access to capital and credit. We can provide no assurance that we will be able to access such capital and credit as needed or that we would be able to do so on economically attractive terms. Finally, the significant expense associated with nuclear projects, weak global economic conditions and other competitive factors, including less expensive alternative energies like natural gas, may result in additional delays for currently expected projects or slower demand for nuclear energy projects over time.
Environmental laws and regulations expose us to certain risks, could increase our costs and liabilities and impact demand for our services. While all of our operations are impacted by environmental laws and regulations, these impacts may be most significant for our nuclear and integrated environmental solutions businesses.
General
Our operations are subject to environmental laws and regulations, including those concerning:
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emissions into the air;
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climate change legislation and regulatory initiatives;
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discharges into waterways;
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generation, storage, handling, treatment, transport and disposal of waste materials and hazardous substances; and
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human health and safety.
Our projects often involve highly regulated materials, including hazardous and nuclear materials and wastes. Environmental laws and regulations generally impose limitations and standards relating to the use, handling, transport, discharge or disposal of regulated materials and require us to obtain a permit and comply with various other requirements. The improper characterization, use, handling, discharge or disposal of regulated materials or any other failure to comply with federal, regional, state and local environmental laws and regulations or associated environmental permits may result in the assessment of administrative, civil and criminal penalties, the imposition of investigatory or remedial obligations or the issuance of injunctions that could restrict or prevent our ability to perform some or all of our activities under existing contracts. The risks associated with these activities are most significant within our E&I segment, which, in addition to environmental remediation activities, has two subsidiaries (The LandBank Group Inc. and Shaw Environmental Liability Solutions LLC) that previously purchased and/or assumed liability with respect to properties that have experienced environmental damage. We can provide no assurance that our insurance coverage or other loss remediation strategies will insulate us from any material liability associated with these operations.
In addition to existing environmental regulations, the adoption and implementation of regulations imposing reporting obligations on, or limiting emissions of GHGs from, our clients’ equipment and operations could significantly impact demand for our services, particularly among our clients for coal and gas-fired generation facilities as well as our clients in the petrochemicals business. Any significant reduction in demand for our services as a result of the adoption of these or similar proposals could have a significant adverse impact on our results of operations.
Nuclear Operations
Risks associated with nuclear projects, due to their size and complexity, may be increased by permit, licensing and regulatory approvals that can be even more stringent and time consuming than similar processes for more conventional construction projects. We are subject to regulations from a number of entities, including the NRC, International Atomic Energy Agency (IAEA) and the European Union (EU), which have a substantial effect on our nuclear operations. The IAEA and the EU both have systems for nuclear material safeguards. Global-scale agreements on nuclear safety such as the Convention on Nuclear Safety and the Joint Convention on the Safety of Spent Fuel Management and on the Safety of Radioactive Waste Management are also in place. The Euratom Treaty has created uniform safety standards aimed at protecting the public and workers and passed rules governing the transportation of radioactive waste. In addition, licensed nuclear facilities must comply with strict inspection procedures. Regulations governing the shutdown and dismantling of nuclear facilities and the disposal of nuclear wastes could also have an effect on our operations. Delays in receiving necessary approvals, permits or licenses, failure to maintain sufficient compliance programs, or other problems encountered during construction could significantly increase our costs and cause our actual results of operations to significantly differ from anticipated results.
Unanticipated litigation or negative developments in pending litigation related to hazardous substances encountered in our businesses could have a material adverse effect on our results of operations and financial condition.
We are from time to time involved in various litigation and other matters related to hazardous substances encountered in our businesses. In particular, the numerous operating hazards inherent in our businesses increase the risk of toxic tort litigation relating to any and all consequences arising out of human exposure to hazardous substances, including without limitation, current or past claims involving asbestos related materials, formaldehyde, Cesium 137 (radiation), mercury and other hazardous substances, or related environmental damage. As a result, we are subject to potentially material liabilities related to personal injuries or property damages that may be caused by hazardous substance releases and exposures. The outcome of such litigation is inherently uncertain and adverse developments or outcomes can result in significant monetary damages, penalties, other sanctions or injunctive relief against us, limitations on our property rights, or regulatory interpretations that increase our operating costs. If any of these disputes results in a substantial monetary judgment against us or an adverse legal interpretation is settled on unfavorable terms, or otherwise affects our operations, it could have a material adverse effect on our operating results and financial condition.
Our clients’ and our partners’ ability to receive the applicable regulatory and environmental approvals for our projects and the timeliness of those approvals could adversely affect us.
The regulatory permitting process for many of the projects performed by our Power segment requires significant investments of time and money by our clients and sometimes by us and/or our partners. There are no assurances that we or our clients will obtain the necessary permits for these projects. Applications for permits to operate these fossil and nuclear-fueled facilities, including air emissions permits, may be opposed by government entities, individuals or environmental groups, resulting in delays and possible non-issuance of the permits. For example, the NRC’s notice to WEC directing WEC to modify the AP1000 shield building caused a delay resulting in a schedule modification.
Due to the international nature of our business we could be adversely affected by violations of the U.S. Foreign Corrupt Practices Act, similar worldwide anti-bribery laws, and various international trade and export laws.
The international nature of our business creates various domestic and local regulatory challenges. The U.S. Foreign Corrupt Practices Act (FCPA) and similar anti-bribery laws in other jurisdictions generally prohibit U.S.-based companies and their intermediaries from making improper payments to non-U.S. officials for the purpose of obtaining or retaining business. Our policies mandate compliance with these anti-bribery laws. We operate in many parts of the world that experience government corruption to some degree, and, in certain circumstances, compliance with anti-bribery laws may conflict with those local customs and practices. Our FCPA policy and training provide our employees with procedures, guidelines and information about FCPA obligations and compliance. Further, we advise our partners, subcontractors, agents and others who work for us or on our behalf that they are obligated to comply with the FCPA. We have procedures and controls in place designed to ensure internal and external compliance. Additionally, our global operations require us to import and export goods and technologies across international borders, which requires a robust compliance program. However, such internal controls and procedures will not always protect us from reckless or criminal acts committed by our employees or agents. If we are found to be liable for FCPA or other regulatory violations (either due to our own acts or our inadvertence, or due to the acts or inadvertence of others), we could suffer from criminal or civil penalties or other sanctions, which could have a material adverse effect on our business.
Political and economic conditions in foreign countries in which we operate could adversely affect us.
Approximately 14% of our fiscal year 2012 revenues were attributable to projects in international markets, some of which are subject to political unrest and uncertainty. In addition to the specific challenges we face internationally, international contracts, operations and expansion expose us to risks inherent in doing business outside the U.S., including:
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uncertain economic conditions in the foreign countries in which we make capital investments, operate and sell products and services;
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the lack of well-developed legal systems and less established or traditional business practices in some countries in which we operate and sell products and services, which could make it difficult for us to enforce our contractual rights;
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security and safety of employees and subcontractors;
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expropriation of property;
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restrictions on the right to convert or repatriate currency;
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changes in labor conditions;
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changing general economic and political conditions in foreign markets;
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terrorist attacks;
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commodity prices and availability;
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potential incompatibility with foreign joint venture partners; and
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interruptions or delays in international shipping.
Foreign exchange risks may affect our ability to realize a profit from certain projects or to obtain projects.
We generally attempt to denominate our contracts in U.S. dollars (USD) or in the currencies of our expenditures. However, we do enter into contracts that subject us to foreign exchange risks, particularly to the extent contract revenues are denominated in a currency different than the contract costs. We attempt to minimize our exposure from foreign exchange risks by obtaining escalation provisions for projects in inflationary economies, or entering into hedge contracts when there are different currencies for contract revenues and costs. However, these actions may not always eliminate all foreign exchange risks.
Our Westinghouse Bonds are JPY denominated. As the USD/JPY exchange rate changes, the amount of USD required to service this debt will change.
Risks related to our Investment in Westinghouse could have an adverse effect on us.
We incur significant JPY-denominated cash interest cost on the Westinghouse Bonds issued to finance our Investment in Westinghouse, and we can provide no assurance that we will receive dividends from Westinghouse sufficient to cover these costs. In an effort to mitigate this risk, we enter into foreign currency forward contracts from time to time, to hedge the impact of exchange rate changes on our JPY-denominated cash interest payments on the Westinghouse Bonds. We normally focus our hedge transactions to the JPY interest payments due within the following twelve months.
In connection with our Investment in Westinghouse and issuing the Westinghouse Bonds, we entered into put option agreements with Toshiba (Put Options) providing us the option to sell all or part of our Westinghouse Equity to Toshiba during a defined exercise period, which we are currently within. On October 6, 2012, NEH exercised its Put Options to sell the Westinghouse Equity to Toshiba. Under the terms of the put option agreements, the Put Options will be cash settled 90 days thereafter, in January 2013, with the proceeds deposited in trust to fund retirement of the Westinghouse Bonds on March 15, 2013.
For additional information, see Part I, Item 1 - Our Business Segments - Investment in Westinghouse Segment, Note 7 - Investment in Westinghouse and Related Agreements, Note 8 - Equity Method Investments and Variable Interest Entities and Note 10 - Debt and Revolving Lines of Credit included in our consolidated financial statements beginning on page and in Liquidity below.
The nature of our projects exposes us to potential professional liability, product liability, warranty and other claims, which may reduce our profits.
We engineer, construct and perform services including pipe and steel fabrication in large industrial facilities where accidents or system failures can have significant consequences. Any such accident or failure at a site where we provided EPC or similar services could result in significant professional liability, product liability, warranty and other claims against us, regardless of whether our products or services caused the incident. Further, the engineering and construction projects we perform expose us to additional risks including, but not limited to, equipment failures, personal injuries, property damage, shortages of materials and labor, permitting delays, work stoppages, labor disputes, weather problems and unforeseen engineering, architectural, environmental and geological problems, each of which could significantly impact our performance and materially impact our financial statements.
Additionally, once our construction is complete, we may face claims relating to our job performance, which could materially impact our financial statements. Under some of our contracts, we must use client-specified metals or processes for producing or fabricating pipe for our clients. The failure of any of these metals or processes could result in warranty claims against us for significant replacement or reworking costs, which could materially impact our financial statements.
We have been, and may in the future be, named as a defendant in legal proceedings where parties may make a claim for damages or other remedies with respect to our projects or other matters. Should we be determined liable, we may not be covered by insurance or, if covered, the dollar amount of these liabilities may exceed our policy limits. Our professional liability coverage is on a claims-made basis covering only claims actually made during the policy period currently in effect. Even where insurance is maintained for such exposures, the policies have deductibles resulting in our assuming exposure for a layer of coverage with respect to any such claims. Any damages not covered by our insurance, in excess of our insurance limits or, if covered by insurance subject to a high deductible, could result in a significant loss for us, which may reduce our profits and cash available for operations.
Risks Related to Financial Reporting and Corporate Governance
Actual results could differ from the estimates and assumptions that we use to prepare our financial statements.
To prepare financial statements in conformity with U.S. generally accepted accounting principles (GAAP), our management is required to make estimates and assumptions, as of the date of the financial statements, that affect the reported values of assets and liabilities and revenues and expenses and disclosures of contingent assets and liabilities. Areas requiring significant estimates by our management include, among other things:
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contract costs and profits and application of the percentage-of-completion method of accounting; revenues recognized, and reduction of costs recognized, as a result of contract claims and unapproved change orders;
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revenues recognized related to project incentives we expect to earn;
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recoverability of inventory and application of lower of cost or market accounting;
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provisions for uncollectible receivables and client claims and recoveries of costs from subcontractors, vendors and others;
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provisions for income taxes and related valuation allowances;
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recoverability of goodwill;
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recoverability of other intangibles and related estimated lives;
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valuation of assets acquired and liabilities assumed in connection with business combinations;
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valuation of defined benefit pension plans; and
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accruals for estimated assets and liabilities, including litigation and insurance recoveries/reserves.
Under our accounting policies, we measure and recognize a large portion of our profits and revenue under the percentage-of-completion accounting methodology. This methodology allows us to recognize revenue and profits ratably over the life of a contract by comparing the amount of the cost incurred to date against the total amount of cost estimated to be incurred. Our actual results could differ materially from our estimates. Changes in reported amounts, the effects of those changes and changes in estimates may be recorded in future periods.
If we were required to write down all or part of our goodwill and/or our intangible assets, our net earnings and net worth could be materially adversely affected.
We had $404.5 million of goodwill and $2.9 million of intangible assets recorded on our consolidated balance sheet at August 31, 2012. Goodwill represents the excess of cost over the fair market value of net assets acquired in business combinations. If our market capitalization drops significantly below the amount of net equity recorded on our balance sheet, it might indicate a decline in our fair value and would require us to further evaluate whether our goodwill has been impaired. We also perform an annual review of our goodwill and intangible assets to determine if it has become impaired, which would require us to write down the impaired portion of these assets. If we were required to write down all or a significant part of our goodwill and/or intangible assets, our net earnings and net worth could be materially adversely affected.
We rely on our information systems to conduct our business, and failure to protect these systems against security breaches could adversely affect our business and results of operations. Additionally, if these systems fail or become unavailable for any significant period of time, our business could be harmed.
The efficient operation of our business is dependent on computer hardware and software systems. Information systems are vulnerable to security breaches by computer hackers and cyber terrorists. We rely on industry-accepted security measures and technology to securely maintain confidential and proprietary information maintained on our information systems. However, these measures and technology may not adequately prevent security breaches. In addition, the unavailability of the information systems or the failure of these systems to perform as anticipated for any reason could disrupt our business and could result in decreased performance and increased overhead costs, causing our business and results of operations to suffer. Any significant interruption or failure of our information systems or any significant breach of security could adversely affect our business and results of operations.
Risks Related to Our Liquidity and Capital Resources
Non-compliance with covenants in our restated credit agreement (Facility), without waiver or amendment from the lenders, could require us to post cash collateral for outstanding letters of credit and could adversely affect our ability to borrow under the Facility.
Our Facility contains certain financial covenants, including a leverage ratio and an interest coverage ratio, which limit the amounts we may borrow. In addition, we are required to file our quarterly and annual reports with the SEC on a timely basis. The defined terms used in calculating the financial covenants require us to follow GAAP, which requires the use of judgments and estimates. We may not be able to satisfy these ratios, especially if our operating results deteriorate as a result of, but not limited to, the impact of other risk factors that may have a negative impact on our future earnings. Additionally, we may not be able to file our SEC reports on a timely basis.
A breach of any covenant or our inability to comply with the required financial ratios could result in a default under our Facility, and we can provide no assurance that we will be able to obtain the necessary waivers or amendments from our lenders to remedy a default. In the event of any default not waived, the lenders under our Facility are not required to lend any additional amounts or issue letters of credit and could elect to require us to apply all of our available cash to collateralize any outstanding letters of credit, declare any outstanding borrowings, together with accrued interest and other fees, to be immediately due and payable or require us to apply all of our available cash to repay any borrowings then outstanding at the time of default. If we are unable to pay when due any material indebtness, to fund adequately the Facility letter of credit collateral account or if any other default has occurred and is continuing under our restated credit agreement, our lenders could proceed to accelerate all of our obligations and we could be required to pay immediately any shortfall amount required to cover our obligations into the Facility letter of credit collateral account. If any future indebtedness under our Facility is accelerated, we can provide no assurance that our assets would be sufficient to repay such indebtedness in full. At August 31, 2012, we had no outstanding borrowings under the Facility with outstanding letters of credit inclusive of both financial and performance of approximately $247.1 million. Our borrowing capacity under the Facility is reduced by the aggregate amount of letters of credit we have outstanding.
Further, we have entered into indemnity agreements with our sureties that contain cross-default provisions. Accordingly, in the event of a default under our Facility, we would need to obtain a waiver from our sureties or an amendment to our indemnity agreements. We can provide no assurance that we would be successful in obtaining an amendment or waiver.
Downgrades by rating agencies, inability to obtain adequate surety bonding or letters of credit could affect our business strategies by requiring us to modify existing bonding facilities and/or reduce our ability to bid on new work which could have a material adverse effect on our future revenues and business prospects.
In certain circumstances, clients may require us to provide credit enhancements, including bonds or letters of credit. In line with industry practice, we are often required to provide performance and surety bonds to clients. These bonds and letters of credit provide credit support for the client if we fail to perform our obligations under the contract. If security is required for a particular project and we are unable to obtain a bond or letter of credit on terms commercially acceptable to us, we cannot pursue that project. We have letter of credit and bonding facilities but, as is typically the case, the issuance of bonds under our surety facilities is at the surety’s sole discretion.
In the event our debt ratings are lowered by independent rating agencies such as Moody’s Investors Service or Standard & Poor’s (S&P), it could be more difficult for us to obtain surety bonding for new projects in the future, and we may be required to increase or provide additional cash collateral to obtain these surety bonds, which would reduce our available cash and could impact our ability to renew or increase availability under our Facility. Any new or modified bonding facilities might not be on terms as favorable as those we have currently, and we could also be subject to increased costs of capital and interest rates.
We continue to expand our business in areas where the underlying contract must be bonded, especially in government services in which bonding is predominately provided by insurance sureties. These surety bonds indemnify the client if we fail to perform our obligations under the contract. Failure to provide a bond on terms required by a client may result in an inability to compete for or win a project. Historically, we have had a strong surety bonding capacity but, as is typically the case, bonding is at the surety’s sole discretion. In addition, because of a reduction in overall worldwide bonding capacity, we may find it difficult to find sureties who will provide the contract-required bonding. Moreover, these contracts are often very large and extremely complex, which often necessitates the use of a joint venture, often with a competitor, to bid on and perform these types of contracts, especially since it may be easier to jointly pursue the necessary bonding. However, entering into these types of joint ventures or partnerships exposes us to the credit and performance risks of third parties, many of whom are not as financially strong as us.
Restrictive covenants in our Facility may restrict our ability to pursue our business strategies.
Our Facility limits our ability to, among other things:
·
incur indebtedness or contingent obligations;
·
issue preferred stock;
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pay dividends or make distributions to our shareholders;
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repurchase or redeem our capital stock or subordinated indebtedness;
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make investments;
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create liens;
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enter into sale/leaseback transactions;
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incur restrictions on the ability of our subsidiaries to pay dividends or to make other payments to us;
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enter into transactions with our shareholders and affiliates;
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sell and pledge assets; and
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acquire the assets of, or merge or consolidate with, other companies or transfer all or substantially all of our assets.
These covenants may also impair our ability to engage in favorable business activities and our ability to finance future operations or capital needs in furtherance of our business strategies. Moreover, the form or level of our indebtedness may prevent us from raising additional capital on attractive terms or obtaining additional financing if needed.
A breach of any of these covenants could result in an event of default under our Facility. For additional information, see Non-compliance with covenants in our Facility, without waiver or amendment from the lenders, could adversely affect our ability to borrow under the Facility above.
Because of the capital-intensive nature of our business, we are vulnerable to significant fluctuations in our liquidity that may vary substantially over time.
Our operations could require us to utilize large sums of working capital, sometimes on short notice and sometimes without assurance of recovery of the expenditures. Circumstances or events that could create large cash outflows include losses resulting from fixed-price contracts, environmental liabilities, litigation risks, unexpected costs or losses resulting from acquisitions, contract initiation or completion delays, political conditions, client payment problems, foreign exchange risks and professional and product liability claims.
Our borrowing levels and debt service obligations could adversely affect our financial condition and impair our ability to fulfill our obligations under our Facility.
At August 31, 2012, we had total outstanding indebtedness of approximately $1,656.2 million, approximately $1,640.5 million of which relates to our Westinghouse Bonds and is of limited recourse to us. In addition, at August 31, 2012, letters of credit, domestic and foreign, issued for our account in an aggregate amount of $329.6 million were outstanding, including the $247.1 million outstanding under our Facility. We had no borrowings under our Facility. Our indebtedness could have important consequences, including the following:
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requiring us to dedicate a substantial portion of our cash flows from operations to the repayment of debt, which reduces the cash available for other business purposes;
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limiting our ability to obtain additional financing and creating additional liens on our assets;
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limiting our flexibility in planning for, and reacting to, changes in our business;
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placing us at a competitive disadvantage if we are more leveraged than our competitors;
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making us more vulnerable to adverse economic and industry conditions; and
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restricting us from making additional investments or acquisitions by limiting our aggregate debt obligations.
To the extent that new debt is incurred in addition to our current debt levels, the leverage risks described above would increase.
Risks Related to Labor and Employment
Our failure to attract and retain qualified personnel, including engineers, skilled workers and key officers, could have an adverse effect on us.
Our ability to attract and retain qualified professional and/or skilled personnel in accordance with our needs, either through direct hiring or acquisition of other firms employing such professionals, is an important factor in determining our future success. The market for these professionals is competitive, and there can be no assurance that we will be successful in our efforts to attract and retain needed personnel. Our ability to successfully execute our business strategy depends, in part, on our ability to attract and retain skilled laborers and craftsmen in our pipe fabrication and construction businesses. Demand for these workers can at times be high and the supply extremely limited. Our success is also highly dependent upon the continued services of our key officers, and we do not maintain key employee insurance on any of our executive officers.
If we are unable to retain qualified personnel, the roles and responsibilities of those employees will need to be filled, which may require that we devote time and resources to identifying, hiring and integrating new employees. In addition, the failure to attract and retain key employees, including officers, could impair our ability to provide services to our clients and conduct our business effectively.
Work stoppages, Union negotiations and other labor problems could adversely affect us.
At August 31, 2012, approximately 18% of our employees were represented by labor unions. A lengthy strike or other work stoppage at any of our facilities could have a material adverse effect on us. There is inherent risk that on-going or future negotiations relating to collective bargaining agreements or union representation may not be favorable to us. From time to time, we also have experienced attempts to unionize our non-union shops. Such efforts can often disrupt or delay work and present risk of labor unrest.
We may be required to contribute cash to meet our underfunded pension obligations in certain multi-employer pension plans.
Domestically, we participate in various multi-employer pension plans under union and industry wide agreements that, generally, provide defined benefits to employees covered by collective bargaining agreements. Absent an applicable exemption, a contributor to a multiemployer plan is liable, upon termination or withdrawal from a plan, for its proportionate share of the plan’s underfunded vested liability. Funding requirements for benefit obligations of our pension plans are subject to certain regulatory requirements and we may be required to make cash contributions which may be material to one or more of these plans to satisfy certain underfunded benefit obligations.
Our employees work on projects that are inherently dangerous and a failure to maintain a safe work site could result in significant losses.
Safety is a primary focus of our business and is critical to our reputation; however, we often work on large-scale and complex projects, frequently in geographically remote locations. Our project sites can place our employees and others near large equipment, dangerous processes or highly regulated materials, and in challenging environments. Often, we are responsible for safety on the project sites where we work. Many of our clients require that we meet certain safety criteria to be eligible to bid on contracts, and some of our contract fees or profits are subject to satisfying safety criteria. Unsafe work conditions also have the potential of increasing employee turnover, increasing project costs and raising our operating costs. If we fail to implement appropriate safety procedures and/or if our procedures fail, our employees or others may suffer injuries. Although we maintain functional groups whose primary purpose is to implement effective health, safety and environmental procedures throughout our company, the failure to comply with such procedures, client contracts or applicable regulations could subject us to losses and liability.
Risks Associated with the Proposed Merger with CB&I
The Company will be subject to various uncertainties and contractual restrictions while the Transaction is pending that may cause disruption and could adversely affect our financial results.
Uncertainty about the effect of the Transaction on employees, suppliers and customers may have an adverse effect on the Company. These uncertainties may impair our ability to attract, retain and motivate key personnel while the Transaction is pending and for a period of time thereafter, as employees and prospective employees may experience uncertainty about their future roles with the combined company, and could cause customers, suppliers and others who deal with us to seek to change existing business relationships with us. The pursuit of the Transaction and the preparation for the integration may also place a burden on management and internal resources. Any significant diversion of management attention away from ongoing business concerns and any difficulties encountered in the transition and integration process could affect our financial results.
In addition, the Transaction Agreement restricts us, without CB&I’s consent, from taking certain specified actions while the Transaction is pending. These restrictions may prevent us from pursuing otherwise attractive business opportunities and making other changes to our business prior to completion of the Transaction or termination of the Transaction Agreement. Because we do not expect to complete the Transaction until the first quarter of calendar 2013, we are expected to operate under these restrictions for a significant period of time.
The Transaction is subject to a number of conditions, including, but not limited to, the consummation of the sale to Technip S.A. of substantially all of the E&C business, which was completed on August 31, 2012; the valid exercise of the Westinghouse Put Options, which were exercised on October 6, 2012; our possession of at least $800 million of unrestricted cash ( “Unrestricted Cash” as defined in the Transaction Agreement), as of the closing date; EBITDA ( “Company EBITDA” as defined in the Transaction Agreement) for the period of four consecutive fiscal quarters ending prior to the closing date of the Transaction of not less than $200 million; and net indebtedness for borrowed money ( “Net Indebtedness for Borrowed Money” as defined in the Transaction Agreement) not exceeding $100 million as of the closing date of the Transaction. The Transaction Agreement also restricts, among other items, our ability to increase borrowings, repurchase shares, and pay dividends.
We have certain provisions in our articles of incorporation and by-laws that may discourage a change of control of our company.
Certain of our corporate governing documents contain provisions that could make it more difficult for a third party to acquire us without the consent of our board of directors. For example, certain provisions in our articles of incorporation authorize the board of directors to determine the powers, preferences and rights of preference shares and to issue preference shares without shareholder approval. These provisions could make it more difficult for a third-party to acquire us, even if the third-party’s offer may be considered beneficial by many shareholders.
Other provisions require a supermajority vote. For example, the affirmative vote of the holders of at least 75% of the outstanding shares of common stock entitled to vote on a matter (Supermajority Threshold), which excludes shares owned by any person that, together with its affiliates, beneficially owns in the aggregate 5% or more of the outstanding shares of our common stock as of the record date, other than any trustee of the Shaw 401(k) Plan (Related Person), is required to authorize and/or approve a merger, consolidation or business combination, such as the proposed merger with CB&I pursuant to the Transaction Agreement.
This supermajority vote requirement could make it difficult to complete a merger, consolidation or sale of our company to CB&I. The Articles further provide that to change this supermajority requirement would itself require an affirmative vote of the holders of at least 75% of the voting power of common stock.
Any one of the provisions discussed above could discourage third parties from obtaining control of us and prevent the proposed merger with CB&I. These provisions may also impede a transaction in which our shareholders could receive a premium over then-current market price and our shareholders’ ability to approve transactions that they consider in their best interests.
If the Transaction does not occur, the Company may incur payment obligations to CB&I.
In certain circumstances in connection with the termination of the Transaction Agreement, including if our Board of Directors changes or withdraws its recommendation of the Shaw Transaction Proposal or terminates the Transaction Agreement to enter into an agreement for an alternative business combination transaction, we must pay to CB&I a termination fee equal to $104 million. We must also pay to CB&I a termination fee equal to $32 million if the Transaction Agreement is terminated because our shareholders fail to approve the Shaw Transaction Proposal at the special meeting.
The Transaction Agreement contains provisions that limit the Company’s ability to pursue alternatives to the Transaction, which could discourage a potential acquirer of Shaw from making an alternative transaction proposal and, in certain circumstances, could require the Company to pay to CB&I a significant termination fee.
Under the Transaction Agreement, we are restricted, subject to limited exceptions, from entering into alternative transactions in lieu of the Transaction. In general, unless and until the Transaction Agreement is terminated, we are restricted from, among other things, soliciting, initiating, knowingly facilitating or knowingly encouraging any inquiries regarding, or making any competing acquisition proposal. Our Board of Directors is limited in its ability to change its recommendation with respect to the Shaw Transaction Proposal.
We may terminate the Transaction Agreement and enter into an agreement with respect to a superior proposal only if specified conditions have been satisfied, including compliance with the non-solicitation provisions of the Transaction Agreement. These provisions could discourage a third party that may have an interest in acquiring all or a significant part of the Company from considering or proposing such an acquisition, even if such third party were prepared to pay consideration with a higher per share cash or market value than the consideration proposed to be received or realized in the Transaction, or might result in a potential competing acquirer proposing to pay a lower price than it would otherwise have proposed to pay because of the added expense of the termination fee that may become payable in certain circumstances.
Other Risk Factors
Lawsuits and regulatory proceedings could adversely affect our business.
From time to time, we, our directors and/or certain of our current and former officers are named as a party to lawsuits and regulatory proceedings. A discussion of our material lawsuits appears in Note 15 - Contingencies and Commitments included in our consolidated financial statements beginning on page. Although it is not possible at this time to predict the likely outcome of these actions, an adverse result in any of these lawsuits could have a material adverse effect on us.
Litigation can involve complex factual and legal questions and its outcome is uncertain. Any claim that is successfully asserted against us could result in significant damage claims and other losses. Even if we were to prevail, any litigation could be costly and time-consuming and would divert the attention of our management and key personnel from our business operations, which could adversely affect our financial condition, results of operations or cash flows. For additional information, see Note 15 - Contingencies and Commitments and Note 20 - Accounting for Claims, Unapproved Change Orders and Incentives on Long-Term Construction Contracts included in our consolidated financial statements beginning on page.
If we are unable to enforce our intellectual property rights or if our technology becomes obsolete, our competitive position could be adversely impacted.
We believe that we are an industry leader by owning or having access to our technologies. We protect our technology positions through patent registrations, license restrictions and a research and development program. We may not be able to successfully preserve our intellectual property rights in the future, and these rights could be invalidated, circumvented or challenged. In addition, the laws of some foreign countries in which our services may be sold do not protect intellectual property rights to the same extent as U.S. law. Because we license technologies from third parties, there is a risk that our relationships with licensors may terminate or expire or may be interrupted or harmed. If we are unable to protect and maintain our intellectual property rights, or if there are any successful intellectual property challenges or infringement proceedings against us, our ability to differentiate our service offerings could be reduced.
Additionally, if our technologies become obsolete, we may not be able to differentiate our service offerings, and some of our competitors may be able to offer more attractive services to our clients. For example, we believe that Westinghouse’s AP1000 technology is a leading technology for nuclear power generation plants. However, there are competing technologies, and it is likely that new technologies will be developed in the future. We also believe that our induction pipe bending technology, know-how and capabilities favorably influence our ability to compete successfully. Currently, this technology and our proprietary software are not patented. Even though we have some legal protections against the dissemination of this technology, including non-disclosure and confidentiality agreements, our efforts to prevent others from using our technology could be time-consuming, expensive and ultimately may be unsuccessful or only partially successful.
Finally, there is nothing to prevent our competitors from independently attempting to develop or obtain access to technologies that are similar or superior to our technology.
Item 1B.
Item 1B. Unresolved Staff Comments
None.
Item 2.
Item 2. Properties
At August 31, 2012, our principal properties (those where we occupy over 35,000 square feet) were as follows:
In addition to these locations, we occupy other owned and leased facilities in various cities that are not considered principal properties. Portions of certain office buildings described above are currently being subleased for various terms. We consider each of our current facilities to be in good operating condition and adequate for its present use. We believe that our leases are at competitive market rates and do not anticipate any difficulty in leasing suitable additional space upon expiration of any lease.
Item 3.
Item 3. Legal Proceedings
For a description of our material pending legal and regulatory proceedings and settlements, see Note 15 - Contingencies and Commitments to our consolidated financial statement beginning on page.
Item 4.
Item 4. Mine Safety Disclosures
Not applicable.
PART II
Item 5.
Item 5. Market for Registrant’s Common Equity, Related Stockholder Matters and Issuer Purchases of Equity Securities
Our common stock, no par value, is traded on the NYSE under the symbol “SHAW.” The following table sets forth, for the quarterly periods indicated, the high and low sale prices per share for the common stock as reported by the NYSE for our two most recent fiscal years and for the current fiscal year to date.
The closing sales price of our common stock on October 16, 2012, as reported on the NYSE, was $44.22 per share. On October 16, 2012, we had 220 shareholders of record.
We have not paid any cash dividends on the common stock. The declaration of dividends is at the discretion of our Board of Directors, and our dividend policy is reviewed by the Board of Directors on a regular basis. We are, however, subject to certain limitations on the payment of dividends under the terms of existing Credit Facilities and the Transaction Agreement. For additional information on these prohibitions, see our discussion of Liquidity and Capital Resources included in Part II, Item 7 - Management’s Discussion and Analysis of Financial Condition and Results of Operations below and Part I, Item 1A - Risk Factors.
Issuer Purchases of Equity Securities
The following table provides information about our purchases during the quarter ended August 31, 2012, of our equity securities that are registered pursuant to Section 12 of the Exchange Act:
Repurchases during the quarter were related to restricted stock units withheld from employees in connection with the settlement of income tax withholding obligations arising from the vesting of restricted stock units.
We currently have an open authorization to repurchase up to $326.1 million in shares, subject to limitations contained in the Facility and the Transaction Agreement.
Equity Compensation Plan Information
For important information regarding our equity compensation plans, please see Note 13 - Share-Based Compensation to our consolidated financial statements beginning on page.
Stock Performance Graph
The following graph compares the cumulative 5-year total return to shareholders of our common stock relative to the cumulative total returns of the S&P 500 index (S&P 500) and the Dow Jones US Heavy Construction index (DJ Heavy Construction). An investment of $100 (with reinvestment of all dividends) is assumed to have been made in our common stock and the S&P 500 and DJ Heavy Construction indexes on August 31, 2007 and its relative performance is tracked through August 31, 2012.
This stock performance information is furnished and shall not be deemed to be soliciting material or subject to Rule 14A, shall not be deemed filed for purposes of Section 18 of the Exchange Act or otherwise subject to the liabilities of that section, and shall not be deemed incorporated by reference in any filing under the Securities Act of 1933, as amended, or the Exchange Act, whether made before or after the date of this report and irrespective of any general incorporation by reference language in any such filing, except to the extent that we specifically incorporate the information by reference.
8/07
8/08
8/09
8/10
8/11
8/12
Shaw Group Inc. (The)
100.00
98.98
58.60
64.74
46.57
84.08
S&P 500
100.00
88.86
72.64
76.20
90.30
106.56
Dow Jones US Heavy Construction
100.00
96.85
64.93
57.54
67.18
68.52
THE FOREGOING GRAPH REPRESENTS HISTORICAL STOCK PRICE PERFORMANCE AND IS NOT
NECESSARILY INDICATIVE OF ANY FUTURE STOCK PRICE PERFORMANCE.
See Part III, Item 12 - Security Ownership of Certain Beneficial Owners and Management and Related Stockholder Matters with respect to information to be incorporated by reference regarding our equity compensation plans.
Item 6.
Item 6. Selected Financial Data
The following selected financial data was derived from our audited consolidated financial statements. You should read the selected financial data presented below in conjunction with the information contained in Part II, Item 7
Item 7. Management’s Discussion and Analysis of Financial Condition and Results of Operations
The following analysis of our financial condition and results of operations should be read in conjunction with Part I of this Form 10-K as well as our consolidated financial statements and the notes thereto beginning on page. The following analysis contains forward-looking statements about our future revenues, operating results and expectations. See Cautionary Statement Regarding Forward-Looking Statements and Part I, Item 1A - Risk Factors for a discussion of the risks, assumptions and uncertainties affecting these statements.
Overview of Results and Outlook
Our financial results for fiscal year 2012 were highlighted by several significant achievements: the successful divestiture of substantially all of the business within the E&C segment which resulted in cash proceeds of $290.0 million and a pre-tax gain of $53.7 million, net of related divestiture activities and charges associated with the wind-down of the remaining E&C operations, the issuance of combined operating licenses (COLs) to our clients by the NRC related to EPC contracts on four nuclear power reactors in the United States, and the announcement of an agreement to sell the Company for an amount that approximates a 72% premium on our share price immediately prior to the announcement.
In February 2012, our Power segment’s client received its COL related to the domestic EPC contracts for two AP1000 nuclear power units in Georgia, and in March 2012, our client received its COL related to the domestic EPC contract for two AP1000 nuclear power units in South Carolina. Receipt of the COLs allows increased amounts of construction activities to commence, such as the placement of safety-related rebar and placing of first nuclear concrete. However, the delays in the issuance of the COLs by the NRC from the anticipated timeline at the contract signing, along with certain licensing related delays, have resulted in lower than expected revenue amounts during fiscal year 2012 for our Power segment. In addition, the segment experienced volume declines on new build coal and gas-fired projects nearing completion. The earnings impact associated with these volume declines were offset by favorable performance incentives on one coal plant and the favorable resolution of certain claims and change orders related to a second new build coal plant nearing completion. Also included in fiscal year 2012 was the adverse impact of a legal settlement on an AQC project resulting in a $20.1 million pre-tax charge.
Our Plant Services segment continues to perform at what we believe is an industry leading level and, as a result, has been able to win work from new clients for additional nuclear power plant maintenance and outage work as well as fossil power and industrial plant maintenance. The segment experienced increased revenue and gross profit in fiscal year 2012 as compared to the prior fiscal year. The increase was primarily due to the mix of clients serviced in our nuclear plant outage maintenance work. Differences in the scope of services between contracts generally result in variances in revenue and margin.
Our E&I segment’s results of operations have been driven by several large federal projects along with emergency response and restoration projects. Our hurricane protection project for the USACE, which is essentially complete, and our MOX project for the DOE in South Carolina continued to significantly impact our operations in the current fiscal year. The federal business within this segment has been impacted by delays on certain contracts included in backlog and new federal procurements, as well as by increased competition.
Our F&M segment experienced increased revenue and profits for fiscal year 2012, compared to the prior fiscal year, as production continues to increase on work for the nuclear power plants our Power segment is executing in Georgia and South Carolina, and as general market conditions continue to improve. Production commenced at our new pipe fabrication joint venture facility in the UAE during the first quarter of fiscal year 2012. Additionally, our pipe fabrication joint venture in Brazil commenced operations in the fourth quarter of fiscal year 2012. The new facilities evidence opportunities in growing international markets for pipe and steel fabrication in shops versus traditional field construction fabrication, as plant fabrication offers the advantages of consistent quality, permanent local employment and, depending on the location, reduced costs and security concerns when compared to field construction fabrication.
On August 31, 2012, we completed the E&C Sale for approximately $290.0 million in cash. We have retained obligations under an engineering, procurement and construction contract associated with a large ethylene plant in southeast Asia that is nearing completion. During the 2012 fiscal year, we recorded a gain related to the E&C Sale, net of related divestiture activities and charges associated with the wind-down of remaining E&C operations, of approximately$53.7 million pre-tax, which is comprised of a $28.4 million pre-tax loss recorded in the third quarter of our fiscal year and a $82.1 million pre-tax gain recorded in the fourth quarter of our fiscal year.
The Westinghouse segment continued to impact our consolidated financial results with significant non-cash, non-operating foreign currency transaction gains and losses resulting from revaluing the JPY-denominated Westinghouse Bonds to the USD equivalent at the end of the period. These transaction gains/losses occur when the JPY decreases/increases relative to the USD. In fiscal years 2012 and 2011, we recorded a pre-tax gain of $40.8 million and a pre-tax loss of $159.0 million, respectively, related to foreign currency transaction losses on the JPY-denominated bonds. The exchange rate of the JPY to the USD at August 31, 2012, was 78.6 as compared to 76.8 as of August 31, 2011.
October 6, 2012, subsequent to our 2012 fiscal year-end, NEH exercised its Put Options to sell the Westinghouse Equity to Toshiba. Under the terms of the put option agreements, the Put Options will be cash settled 90 days thereafter, in January 2013, with the proceeds deposited in trust to fund retirement of the Westinghouse Bonds on March 15, 2013. Prior to bond retirement, our financial statements will continue to be impacted by non-cash foreign currency transaction gains and losses resulting from revaluing the JPY-denominated Westinghouse Bonds to the USD equivalent at the end of the period.
See Note 16 - Business Segments to our consolidated financial statements for total assets by segment.
Consolidated Results of Operations
The information below is an analysis of our consolidated results for the fiscal years ended August 31, 2012, 2011 and 2010 (in millions, except for percentages). See Segment Results of Operations below for additional information describing the performance of each of our reportable segments.
Revenue:
Consolidated revenues increased during fiscal year 2012 as compared to fiscal year 2011, primarily related to volume increases in our Plant Services and F&M segments, partially offset by a decline in our Power segment. The increase in Plant Services revenues was driven by an increase in the number of nuclear refueling outages and the overall duration of the outages. The increase in F&M revenues was primarily due to execution of AP1000 work for our Power segment and the segment’s new pipe fabrication facility in the UAE.
The decrease in consolidated revenues during fiscal year 2011 as compared to fiscal year 2010 was primarily due to declines in activity in our E&C and E&I segments. The decline in E&C revenues was driven by the continued lack of new awards in 2010 and 2011. The decline in E&I revenues is primarily attributed to decreased cost reimbursable construction activity on a hurricane protection project in Louisiana that is nearing completion.
Gross profit:
Consolidated gross profit increased during fiscal year 2012 as compared to fiscal year 2011, as our Power, F&M and E&C segments’ gross profit increased significantly from the prior fiscal year. The increase in gross profit for our Power segment was primarily driven by an adverse jury verdict and a favorable arbitration award in fiscal year 2011 that resulted in a net reduction in gross profit of $43.6 million in that period that did not re-occur in the current fiscal year, as well as $68.3 million of additional gross profit on two new build coal plants as compared to prior year, as a result of increased recovery (of previously incurred costs) recognized in connection with the achievement of certain performance guarantees and the resolution of previously outstanding claims. The increase in gross profit for our F&M segment is attributable to execution of AP1000 work for our Power segment, UAE production ramp up, and a $16.8 million adverse settlement of a dispute with a client in fiscal year 2011 that did not re-occur in the current fiscal year. For our E&C segment, the prior fiscal year was negatively impacted by $183.7 million in reduced margin related to forecasted cost increases on the southeast Asia project driven primarily by subcontractor costs in excess of that originally forecasted.
The decrease in gross profit during fiscal year 2011 as compared to fiscal year 2010 was primarily due to reduced volumes of revenue as well as $183.7 million in reduced margins related to forecasted cost increases on the southeast Asia project in our E&C segment and reversed contract profit on an EPC coal project in the U.S. for cost increases from quantity growth and resultant construction labor costs of approximately $86.8 million.
Selling, general and administrative expenses (S,G&A):
Consolidated S,G&A increased slightly during fiscal year 2012, primarily related to higher compensation costs, offset by lower travel costs and legal and professional fees. The decrease during fiscal year 2011 was primarily due to reductions in staffing costs.
Gain on disposal of E&C assets:
On August 31, 2012, we completed the E&C Sale. Also on August 31, 2012, the E&C segment’s Toronto-based operations that were not included in the E&C Sale filed for bankruptcy and were deconsolidated. As a result of the E&C Sale and the related divestiture activity, we recorded a pre-tax gain of $83.3 in fiscal year 2012.
Impairment of note receivable:
We recorded an impairment of $48.1 million during the third quarter of fiscal year 2011 with respect to advances made under a credit facility we provided Nuclear Innovation North America (NINA) to assist in financing the development of the South Texas Project. During the three months ended May 31, 2011, the project sponsor asked that we cease the majority of the work relating to individual orders issued under our EPC contract jointly obtained with Toshiba. Additionally, the project sponsors’ majority owner announced it was withdrawing from further financial participation in that company, and a major municipal utility announced it would indefinitely suspend all discussions regarding a potential agreement to purchase the power from the proposed facilities. Due to these changes, we reviewed the security supporting the loans outstanding (primarily partially manufactured equipment) and we impaired the loans granted to the project entities. We have not and do not plan to make additional investments in ABWR related projects.
Interest expense:
Consolidated interest expense remained unchanged during fiscal year 2012 as compared to fiscal year 2011. The increase in interest expense during fiscal year 2011 as compared to fiscal year 2010 was due primarily to the interest expense associated with the JPY denominated bonds, which increased, when expressed in U.S. dollar terms, by approximately $3.5 million, or 9.2%, to $41.6 million in fiscal year 2011 from $38.1 million in fiscal year 2010. The actual interest expense is paid in a fixed amount of JPY but the US dollar equivalent varies according to the JPY/US dollar exchange rate.
Provision (benefit) for income taxes:
Consolidated effective tax rate for fiscal year 2012 was 19% as compared to a benefit of 36% for fiscal year 2011. Our consolidated effective tax rate is lower than fiscal year 2011 due to a lower provision for unrecognized tax benefits and the impact of the E&C sale as well as the level and mix of earnings between domestic and international operations. The provision for income tax for fiscal year 2012 benefited from an exclusion of capital gain on the sale of shares in a foreign jurisdiction. The impact of this exclusion on our effective tax rate for fiscal year 2012 was a decrease of 11%. The provision for income taxes for fiscal year 2012 includes an increase to unrecognized tax benefits of $3.9 million for current and prior years as well as a benefit of $18.5 million due to a release of unrecognized tax benefits due to the expiration of statutes of limitations in various jurisdictions. The impact of changes from unrecognized tax benefits on our effective tax rate for fiscal year 2012 was a decrease of 6%.
Consolidated effective tax rate for fiscal year 2011 was a benefit of 36% as compared to a provision of 29% for fiscal year 2010. The change in our effective tax rate was primarily due the level and mix of earnings between our domestic and international operations. See Note 11 - Income Taxes to our consolidated financial statements for a reconciliation of the federal statutory rate to the consolidated effective tax rate.
Earnings (losses) from unconsolidated entities:
Earnings (losses) from unconsolidated entities decreased in fiscal year 2012 as compared to fiscal year 2011, primarily due to a $8.6 million net of tax decrease in earnings from our Investment in Westinghouse.
The increase in earnings (losses) from unconsolidated entities in fiscal year 2011 as compared to fiscal year 2010 was primarily due to a $13.9 million net of tax increase in earnings from our Investment in Westinghouse.
Net income (loss) attributable to Shaw:
Consolidated net income (loss) attributable to Shaw increased in fiscal year 2012 as compared to fiscal year 2011, due primarily to the factors discussed above, as well as a $40.8 million pre-tax non-cash foreign currency transaction gain in fiscal year 2012 resulting from revaluing the JPY-denominated Westinghouse Bonds to the USD equivalent at the end of the period, as compared to a $159.0 million loss in fiscal year 2011.
The decrease in consolidated net income (loss) attributable to Shaw in fiscal year 2011 as compared to fiscal year 2010 was related to the factors discussed above and an increase in the pre-tax non-cash foreign currency transaction loss of $27.4 million in fiscal year 2011 resulting from revaluing the JPY-denominated Westinghouse Bonds to the USD equivalent at the end of the period.
Segment Results of Operations
The following tables compare selected summary financial information related to our segments for the fiscal years ended August 31, 2012, 2011 and 2010 (in millions, except for percentages):
NM - Not meaningful.
Our revenues by industry were as follows (in millions, except for percentages):
Our revenues by geographic region generally based on the site location of the project were as follows (in millions, except for percentages):
Segment Overview and Analysis - Fiscal Year 2012 Compared to Fiscal Year 2011
Power Segment
Our Power segment continues to execute major electric power generation projects, with the mix of fuel sources for the projects varying as market conditions change. During fiscal year 2012, we reached substantial completion on one EPC new build coal-fired power plant and one new build natural gas-fired plant, while work continues on two EPC coal-fired power plants and two gas-fired power plants in the U.S. Activity on two contracts for four domestic AP1000 nuclear units continued to increase throughout the year, once the necessary COLs were issued by the NRC. These two projects generated approximately 13 percent of our consolidated revenues for fiscal year 2012, with margins that exceeded those of the coal- and gas-fired projects. Work also continues on our services contract for four new AP1000 nuclear power reactors in China. In the fossil fuel markets, we believe there are significant opportunities for gas-fired power plants and AQC related projects, but the timing of the AQC projects is dependent on the compliance timeframe for the air emission regulations in the U.S. We have seen increased activity in this area as evidenced by the award of an EPC services contract for AQC work for Portland General Electric’s Boardman plant near Portland, Oregon during the fourth quarter. Additionally, subsequent to our fiscal year end, we were awarded the front-end engineering for a fleet of AQC projects for FirstEnergy Corp. in Ohio, Pennsylvania and West Virginia.
Revenues
Revenues decreased $143.4 million, or 6.8%, to $1,973.4 million in fiscal year 2012 from $2,116.8 million in fiscal year 2011. The decrease was primarily due to a $417.5 million decrease in fossil plant construction activity primarily driven by coal and gas-fired power plants recently competed or nearing completion. This decrease is reflective of the current power market in the U.S., where few new coal-fired power projects are being considered by utilities because of environmental regulations and the abundant supply of relatively inexpensive natural gas. The decrease in coal and gas-fired EPC project revenues were generally offset by $306.2 million in volume increases associated with the ramp up of our domestic AP1000 nuclear reactor projects as well as a major nuclear uprate project.
Gross profit and gross profit percentage
Gross profit increased $32.8 million, or 91.6%, to $68.6 million in fiscal year 2012 from $35.8 million in fiscal year 2011. Gross profit percentage increased to 3.5% in fiscal year 2012 from 1.7% in fiscal year 2011. The increase in gross profit and gross profit percentage was driven primarily by an adverse jury verdict and a favorable arbitration award in fiscal year 2011 that resulted in a net reduction in gross profit of $43.6 million in that period as compared to a $20.1 million reduction in 2012 from settlement on a recently completed AQC project. In fiscal year 2012 we recorded $16.7 million additional gross profit from coal projects as a result of increased earnings from performance incentives, favorable changes to existing contract terms, and resolution of certain unapproved change orders, partially offset by the reduced revenue noted above. We also experienced an increase in gross profit of $11.5 million related to increased activity on two new build gas-fired plants. Lastly, we experienced a decrease in gross profit of $21.2 million from the prior year on our nuclear power projects driven by a major uprate project that generated relatively low gross profit, as well as from schedule delays and resulting cost increases caused primarily by delays in the receipt of COLs by our clients on the new build AP1000 projects. The increased costs result in a reduced estimation of the percent completed on the job and reduced margins. We are seeking recovery of these costs from one of our clients. The new build AP1000 projects remain profitable with expected margins exceeding those typically achieved on large coal and gas-fired EPC projects, as well as the recently completed nuclear uprate project.
Income (loss) before income taxes and earnings (losses) from unconsolidated entities
Income (loss) before income taxes and earnings (losses) from unconsolidated entities increased $28.8 million, or 1,600.0%, to $30.6 million in fiscal year 2012 from $1.8 million in fiscal year 2011. This increase was primarily attributable to the increase in gross profit described above, partially offset by the initial spending of $2.5 million associated with the development of NET Power.
Plant Services Segment
Our Plant Services segment generated increased revenue in fiscal year 2012 compared to fiscal year 2011. The current fiscal year is also this segment’s third straight year with record earnings. We continue to execute maintenance work primarily during scheduled outages at nuclear power plants and to a lesser extent at industrial and fossil power facilities. We currently have agreements to provide nuclear maintenance services to 45 of the 104 operating nuclear power reactors, including two of the country’s largest nuclear fleets. During the past year we were also successful in expanding the fossil plant maintenance services that we provide by signing a new contract with Arizona Public Service Company to provide such services to 9 fossil plants. Our maintenance and outage work is normally structured under cost reimbursable agreements that tend to cover periods of three to five years. Currently we are expecting 29 outages in fiscal year 2013.
Revenues
Revenues increased $164.5 million, or 17.8%, to $1,089.2 million in fiscal year 2012 from $924.7 million in fiscal year 2011. While the scope of work for each outage differs, the increase in revenue was due primarily to an increase in the number of nuclear refueling outages as well as the overall durations of the outages. The segment supported 22 plant outages in fiscal year 2012, including several extended power uprate outages which are typically longer in duration, compared to 20 plant outages in fiscal year 2011. In addition, revenue increased due to a higher volume of work related to industrial maintenance projects, including steel plants, oil refineries and multiple chemical plants.
Gross profit and gross profit percentage
Gross profit increased $10.6 million, or 15.1%, to $80.8 million in fiscal year 2012 from $70.2 million in fiscal year 2011. Gross profit percentage decreased slightly to 7.4% in fiscal year 2012 from 7.6% in fiscal year 2011. The increase in gross profit was due primarily to a $9.8 million increase for work on a capital construction project that reached substantial completion late in fiscal year 2012. While gross profit can fluctuate based on project specific performance indicators and differences in the level of personnel dedicated to specific projects, these factors did not significantly affect gross profit or gross profit percentage in the current fiscal year.
Income (loss) before income taxes and earnings (losses) from unconsolidated entities
Income (loss) before income taxes and earnings (losses) from unconsolidated entities increased $10.0 million, or 16.7%, to $69.8 million in fiscal year 2012 from $59.8 million in fiscal year 2011, primarily attributable to the increase in gross profit described above.
E&I Segment
Our E&I segment continues to generate the most earnings of our operating segments, even though several of our large emergency response and restoration projects contributed less this fiscal year as compared to last fiscal year. The MOX project for the DOE in South Carolina is currently the most significant project within the E&I segment, and we expect the project to continue through 2018 and possibly beyond with additional options which may be granted by the DOE. Our E&I segment revenues have been negatively impacted by our coastal protection project for the State of Louisiana and our hurricane protection project for the USACE, one of which is complete and the other essentially complete, combined with our federal business being impacted by delays in certain contracts included in backlog and delays in awards of projects from the U.S. government. However, we expect the MOX project, as well as existing projects and new project awards from the government and private-sector customers, which provide environmental remediation, program management, emergency response and recovery, facility management and infrastructure services, to continue to contribute to this segment’s strong operating performance.
Revenues
E&I’s revenues decreased $79.9 million, or 4.2%, to $1,814.4 million in fiscal year 2012, from $1,894.3 million in fiscal year 2011. This decrease in revenues was due primarily to the completion in the prior year of our coastal protection project for the State of Louisiana and lower volumes on our LEED certified design-build project for the U.S. Navy, which was completed in the first quarter of fiscal year 2012, and our hurricane protection project for the USACE, which is nearing completion. The decrease was partially offset by increased activity on our MOX project for the DOE in South Carolina.
Gross profit and gross profit percentage
E&I’s gross profit decreased $17.4 million, or 9.2%, to $171.4 million in fiscal year 2012, from $188.8 million in fiscal year 2011. Gross profit percentage decreased to 9.4% in fiscal year 2012 from 10.0% in fiscal year 2011. The decrease in gross profit was primarily due to the activity described above on coastal protection, design-build and hurricane protection projects. The decrease in gross profit was partially offset by increased activity on our MOX project for the DOE and a favorable variance from a $6.8 million unfavorable resolution to a subcontractor claim in the prior year. The decrease in gross profit percentage was primarily due to the higher volume on our MOX project for the DOE where we earn lower gross profit percentage, offset by the unfavorable impact in the prior year from the previously described subcontractor claim.
Income (loss) before income taxes and earnings (losses) from unconsolidated entities
Income (loss) before income taxes and earnings (losses) from unconsolidated entities decreased $14.5 million, or 12.4%, to $102.8 million in fiscal year 2012, from $117.3 million in fiscal year 2011, primarily due to the activity in gross profit described above.
F&M Segment
Our F&M segment experienced an increase in volume of work and corresponding profits in fiscal year 2012 as work commenced on the AP1000 nuclear power work subcontracted from our Power segment. However, we are also beginning to experience increases in demand for our pipe fabrication services within the domestic energy market. We expect this trend to continue into fiscal year 2013. Our joint venture pipe fabrication facilities in the UAE and Brazil position us well to be a major competitor in these international growth areas. Where work traditionally performed in the field by craft labor may be shifting to being performed in pipe fabrication facilities, such a shift would likely be favorable to our F&M segment.
Revenues
Revenues increased $142.9 million, or 35.0%, to $551.5 million in fiscal year 2012 from $408.6 million in fiscal year 2011. This increase was due to our increase in volume of work, primarily from our AP1000 work for our Power segment and our new pipe fabrication facility in the UAE.
Gross profit and gross profit percentage
Gross profit increased $52.5 million, or 103.6%, to $103.2 million in fiscal year 2012 from $50.7 million in fiscal year 2011. Gross profit percentage increased to 18.7% in fiscal year 2012 from 12.4% in fiscal year 2011. The increases in gross profit and gross profit percentage were primarily due to a $16.8 million pre-tax adverse settlement of a dispute with a client in fiscal year 2011 that did not re-occur in fiscal year 2012, and increase in work primarily from a full year of production in the UAE and work associated with our AP1000 projects in our Power segment.
Income (loss) before income taxes and earnings (losses) from unconsolidated entities
Income (loss) before income taxes and earnings (losses) from unconsolidated entities increased $48.2 million, or 234.0%, to $68.8 million in fiscal year 2012 from $20.6 million in fiscal year 2011, primarily attributable to the increases in gross profit and gross profit percentage described above.
E&C Segment
On August 31, 2012, the last day of our 2012 fiscal year, we completed the E&C Sale for approximately $290.0 million in cash. We have retained our obligations under an engineering, procurement and construction contract associated with a large ethylene plant in southeast Asia that is nearing completion. The E&C segment’s operations will cease upon completion of this project. Also retained by Shaw, but incorporated into our E&I segment, are certain consulting services provided to the energy and petrochemical market, which had an immaterial effect on the segment presentation.
Revenues
E&C’s revenues were $579.9 million in fiscal year 2012 and $593.3 million in fiscal year 2011 and in both years were comprised primarily of the large ethylene project in southeast Asia. This project is in a loss position as a result of increased costs from subcontractors. Revenues for the prior fiscal year were impacted by significant forecasted cost increases that resulted in a percentage of completion revenue reduction for the southeast Asia project, which is currently in a loss position and nearing completion.
Gross profit (loss) and gross profit (loss) percentage
Gross profit (loss) was $1.9 million in fiscal year 2012 and $(153.3) million in fiscal year 2011. Gross profit (loss) in the current fiscal year was impacted by $29.6 million in increased costs to complete the southeast Asia project driven primarily by subcontractor costs in excess of that originally forecasted. Gross profit (loss) in the prior fiscal year was impacted by increased costs, foreign exchange loss and the corresponding reduction in the estimated percentage of completion incurred on the southeast Asia project.
Income (loss) before income taxes and earnings (losses) from unconsolidated entities
Income (loss) before income taxes and earnings (losses) from unconsolidated entities increased $231.8 million, or 121.8%, to income of $41.5 million in fiscal year 2012 from a loss of $190.3 million in fiscal year 2011, primarily as a result of the increase in gross profit and gross profit percentage described above, as well as a $83.3 million net gain related to the E&C Sale, including a $11.8 million loss associated with related divestiture activities.
Investment in Westinghouse Segment
For fiscal years 2012 and 2011, the Investment in Westinghouse segment reported income (loss) before income taxes of $0.1 and $(201.9), respectively, which includes a $40.8 million net gain on translating the JPY-denominated Westinghouse Bonds (used to partially fund the Investment in Westinghouse in October 2006 through our subsidiary, NEH) to the USD equivalent at the end of each 2012 fiscal period; $40.6 million of interest expense on the JPY-denominated Westinghouse Bonds, including accretion and amortization; and certain administrative costs.
Because the Westinghouse Bonds are denominated in JPY, at the end of each fiscal period, U.S. GAAP requires that we revalue for financial reporting purposes the JPY-denominated Westinghouse Bond debt to its USD equivalent at the JPY / US Dollar exchange rate in effect at the end of each fiscal period, with the difference being recognized as a non-cash gain or (loss) in our Statement of Operations for that fiscal period. As a result of revaluing the JPY-denominated Westinghouse Bonds to the USD equivalent at the end of the fiscal period, we recorded a foreign currency transaction gain of $40.8 million in fiscal year 2012 and a loss of $159.0 million in fiscal year 2011.
As a result of the Westinghouse Bond holders having the ability to require us to exercise the Put Options to retire the bonds due to the Toshiba Event described previously, we reclassified the Westinghouse Bonds from long-term to current liabilities in the third quarter of fiscal year 2009. See Item 1 - Business for additional information.
Our 20% interest in Westinghouse’s earnings for fiscal years 2012 and 2011 was $20.3 million ($12.3 million net of income tax) and $34.1 million ($20.9 million net of income tax), respectively. Westinghouse maintains its accounting records for reporting to its majority owner, Toshiba, on a calendar quarter basis with a March 31 fiscal year end. Financial information about Westinghouse’s operations is available to us for Westinghouse’s calendar quarter periods. As a result, we record our 20% of Westinghouse’s earnings (loss) as reported to us by Westinghouse based upon Westinghouse’s calendar quarterly reporting periods, or two months in arrears of our current reporting periods. Under this policy, the results of Westinghouse’s operations from July 1, 2011, through their calendar quarter ended June 30, 2012, were included in our financial statements for the twelve months ended August 31, 2012; and the results of Westinghouse’s operations from July 1, 2010, through their calendar quarter ended June 30, 2011, were included in our financial statements for the twelve months ended August 31, 2011.
Since the Westinghouse Bonds are JPY-denominated, we enter into foreign currency forward contracts from time-to-time to hedge the impact of exchange rate changes on our JPY-denominated cash interest. We normally focus our hedge transactions to the JPY interest payments due within the following twelve months.
On October 6, 2012, which is subsequent to our 2012 fiscal year end, NEH exercised its Put Options to sell the Westinghouse Equity to Toshiba. Under the terms of the put option agreements, the Put Options will be cash settled 90 days thereafter, in January 2013, with the proceeds deposited in trust to fund retirement of the Westinghouse Bonds on March 15, 2013. Prior to bond retirement, our financial statements will continue to be impacted by non-cash foreign currency transaction gains and losses resulting from revaluing the JPY-denominated Westinghouse Bonds to the USD equivalent at the end of the period.
Corporate
Corporate S,G&A increased $8.9 million, or 13.2%, to $76.3 million in fiscal year 2012, from $67.4 million in the prior fiscal year. This increase was primarily due to higher incentive compensation costs, including costs associated with long-term incentive awards, which are tied to our share price, and higher professional fees related to the Transaction Agreement, partially offset by an overall decrease in Corporate.
Segment Analysis - Fiscal Year 2011 Compared to Fiscal Year 2010
Power Segment
Revenues
Revenues decreased $181.1 million, or 7.9%, to $2,116.8 million in fiscal year 2011 from $2,297.9 million in fiscal year 2010. This decrease was primarily due to the substantial completion of several coal and AQC projects in fiscal year 2010 of $226.1 million, lower volume on continuing EPC coal projects of $189.8 million and an adverse jury verdict on a dispute that resulted in a reduction in revenue of $61.5 million compared to fiscal year 2010. This decrease was partially offset by volume increases of $274.1 million on our domestic AP1000 nuclear reactors, nuclear uprate projects, new build gas-fired power plants and other contracts, as well as a $24.8 million favorable arbitration award in Taiwan.
Gross Profit and Gross Profit Percentage
Gross profit decreased $83.9 million, or 70.1%, to $35.8 million in fiscal year 2011 from $119.7 million in fiscal year 2010, and gross profit percentage decreased to 1.7% in fiscal year 2011 from 5.2% in fiscal year 2010. The decrease in gross profit and gross profit percentage was due to an adverse jury verdict that resulted in a reduction in gross profit of $63.4 million and reduced margin totaling $86.8 million related to cost increases on a new-build coal project. Additionally, the substantial completion of several coal and AQC EPC projects in fiscal year 2010 contributed $5.2 million to the year-over-year reduction in gross profit. Partially offsetting these decreases were increased gross profit of $52.1 million on on-going new-build coal and gas-fired EPC contracts as well as increased gross profit on domestic nuclear EPC projects, nuclear uprate projects and other contracts. Additionally, gross profit increased $19.8 million as a result of a favorable arbitration award in Taiwan.
Income (loss) before income taxes and earnings (losses) from unconsolidated entities
Income before income taxes and earnings from unconsolidated entities decreased $63.1 million, or 97.2%, to $1.8 million in fiscal year 2011 from $64.9 million in fiscal year 2010. This decrease primarily resulted from the same factors affecting gross profit discussed above, partially offset by a decrease in S,G&A in fiscal year 2011 as compared to fiscal year 2010.
Plant Services Segment
Revenues
Revenues increased $43.7 million, or 5.0%, to $924.7 million in fiscal year 2011 from $881.0 million in fiscal year 2010. The increase was primarily attributable to increased revenues in the industrial maintenance business line as we have expanded our services to new customers and new markets. In addition, the nuclear power plant maintenance business also experienced revenue growth in fiscal year 2011. Partially offsetting this growth was a decline in the volume of construction work as compared to the prior fiscal year.
Gross Profit and Gross Profit Percentage
Gross profit increased $17.0 million, or 32.0%, to $70.2 million in fiscal year 2011 from $53.2 million in fiscal year 2010 and gross profit percentage increased to 7.6% in fiscal year 2011 from 6.0% in fiscal year 2010. The increases in gross profit and gross profit percentage were primarily due to execution in the nuclear maintenance market of both outage and on-line services, as well as the continuation of a major project in the industrial maintenance business line.
Income (loss) before income taxes and earnings (losses) from unconsolidated entities
Income before income taxes and earnings from unconsolidated entities increased $16.1 million, or 36.8%, to $59.8 million in fiscal year 2011 from $43.7 million in fiscal year 2010. The increase primarily resulted from the same factors affecting gross profit discussed above offset by a minimal increase in general and administrative expenses.
E&I Segment
Revenues
Revenues decreased $320.9 million, or 14.5%, to $1,894.3 million in fiscal year 2011 from $2,215.2 million in fiscal year 2010 primarily due to decreased construction activity on the hurricane protection project for the USACE in southeast Louisiana and a previously consolidated joint venture that completed execution of a project for the DOE in the fourth quarter of fiscal year 2010. The decrease was partially offset by our MOX project for the DOE, a design-build project for the U.S. Navy, also substantially complete, and remediation activities relating to the Fukushima, Japan nuclear reactors.
Gross Profit and Gross Profit Percentage
Gross profit decreased $18.0 million, or 8.7%, to $188.8 million in fiscal year 2011 from $206.8 million in fiscal year 2010 while gross profit percentage increased to 10.0% in fiscal year 2011 from 9.3% in fiscal year 2010. The decrease in gross profit is primarily due to decreased activity from our hurricane protection project for the USACE partially offset by increased activity on our design-build project for the U.S. Navy and profit earned on projects with a favorable contract mix in fiscal year 2011 as compared to the prior fiscal year. The increase in gross profit percentage was due to the favorable contract mix in fiscal year 2011 as compared to the prior fiscal year, in part from our having no activity from a previously consolidated lower margin joint venture that completed execution of the cost reimbursable project for the DOE described above.
Income (loss) before income taxes and earnings (losses) from unconsolidated entities
Income before income taxes and earnings from unconsolidated entities decreased $21.5 million, or 15.5%, to $117.3 million in fiscal year 2011 from $138.8 million in fiscal year 2010. The decrease primarily resulted from the same factors affecting gross profit discussed above as well as a slight increase in selling, general and administrative expenses related to increased business development activities.
F&M Segment
Revenues
Revenues decreased $83.4 million, or 17.0%, to $408.6 million in fiscal year 2011 from $492.0 million in fiscal year 2010. This decrease was due to the completion of several large projects in the prior fiscal year which were not replaced in backlog and bending machine sales in fiscal year 2010 that did not occur in 2011.
Gross Profit and Gross Profit Percentage
Gross profit decreased $42.8 million, or 45.8%, to $50.7 million in fiscal year 2011 from $93.5 million in fiscal year 2010. Gross profit percentage decreased to 12.4% in fiscal year 2011 from 19.0% in fiscal year 2010. The decreases in gross profit and gross profit percentage were primarily due to reduced client demand for pipe fabrication services overall and from a $16.8 million pre-tax adverse settlement of a dispute with a client.
Income (loss) before income taxes and earnings (losses) from unconsolidated entities
Income before income taxes and earnings from unconsolidated entities decreased $43.3 million, or 67.8%, to $20.6 million in fiscal year 2011 from $63.9 million in fiscal year 2010 primarily due to the factors affecting gross profit discussed above.
E&C Segment
Revenues
Revenues decreased $504.5 million, or 46.0%, to $593.3 million in fiscal year 2011 from $1,097.8 million in fiscal year 2010 due primarily to decreased revenue associated with the southeast Asia project as a result of significant forecasted cost increases, reduced engineering services and procurement contracts from the prior year and a reduction in customer furnished materials and pass through revenues of $216.9 million for which we recognize no gross profit or loss. Customer furnished materials and pass through costs were $19.7 million and $236.6 million for fiscal years 2011 and 2010, respectively.
Gross Profit and Gross Profit Percentage
Gross profit decreased $247.2 million, or 263.3%, to $(153.3) million in fiscal year 2011 from $93.9 million in fiscal year 2010. Gross profit percentage decreased to (25.8)% in fiscal year 2011 from 8.6% in fiscal year 2010. The decreases in gross profit and gross profit percentage were primarily due to the work-off of several high-margin engineering services and procurement contracts in fiscal year 2010 as well as $183.7 million in reduced margin related to forecasted cost increases to complete the southeast Asia project.
Income (loss) before income taxes and earnings (losses) from unconsolidated entities
Income before income taxes and earnings from unconsolidated entities decreased $238.0 million, or 499.0%, to a loss of $190.3 million in fiscal year 2011, compared to income of $47.7 million in fiscal year 2010. This decrease was primarily due to the factors affecting gross profit discussed above.
Investment in Westinghouse Segment
The results of our Investment in Westinghouse segment include both our 20% interest in Westinghouse’s reported earnings (loss), and the gain (loss) on translating the JPY-denominated Westinghouse Bonds (used to partially fund the Investment in Westinghouse in October 2006 through our subsidiary, NEH) to the USD equivalent at the end of each fiscal period. For fiscal years 2011 and 2010, the impact of the Investment in Westinghouse segment on our income (loss) before income taxes was $(201.9) and $(169.8), respectively.
Because the Westinghouse Bonds are denominated in JPY, at the end of each fiscal period, GAAP requires that we revalue for financial reporting purposes the JPY-denominated Westinghouse Bond debt to its USD equivalent at the JPY / US Dollar exchange rate in effect at the end of each fiscal period, with the difference being recognized as a non-cash gain or (loss) in our Statement of Operations for that fiscal period. The losses in fiscal years 2011 and 2010 were primarily attributable to the non-cash foreign currency transaction losses of $159.0 million and $131.6 million, respectively, resulting from revaluing the JPY-denominated Westinghouse Bonds to the USD equivalent at the end of the fiscal period.
As a result of the Westinghouse Bond holders having the ability to require us to exercise the Put Options to retire the bonds due to the Toshiba Event described previously, we reclassified the Westinghouse Bonds from long-term to current liabilities in the third quarter of fiscal year 2009. Additionally, we contemporaneously expensed a pre-tax total of approximately $29.4 million in interest expense, which included the $22.8 million in pre-tax unamortized original issuance bond discount as well as the $6.6 million in unamortized deferred financing costs associated with the Westinghouse Bonds. See Item 1 - Business for additional information.
Our 20% interest in Westinghouse’s earnings was $34.0 million in fiscal year 2011, an increase from $15.7 million in fiscal year 2010. This increase was related to increases in revenues and operation profits in its Nuclear Services and Nuclear Fuel segments. Westinghouse maintains its accounting records for reporting to its majority owner, Toshiba, on a calendar quarter basis with a March 31 fiscal year end. Financial information about Westinghouse’s operations is available to us for Westinghouse’s calendar quarter periods. As a result, we record our 20% of Westinghouse’s earnings (loss) as reported to us by Westinghouse based upon Westinghouse’s calendar quarterly reporting periods, or two months in arrears of our current reporting periods. Under this policy, the results of Westinghouse’s operations from July 1, 2010, through their calendar quarter ended June 30, 2011, were included in our financial statements for the twelve months ended August 31, 2011; and the results of Westinghouse’s operations from July 1, 2009, through their calendar quarter ended June 30, 2010, were included in our financial statements for the twelve months ended August 31, 2010.
Corporate
Corporate S,G&A expenses decreased $7.5 million, or 10.0%, to $67.4 million in fiscal year 2011 from $74.9 million in fiscal year 2010. This decrease was due primarily to lower compensation and severance costs, professional fees and non-income related taxes, partially offset by higher repairs and maintenance expenses associated with our corporate aircraft, charitable contributions and depreciation expense.
Non-GAAP Financial Measure
EBITDA is a supplemental, non-GAAP financial measure and is a measure of operating performance used internally. EBITDA is defined as earnings before interest expense, taxes, depreciation and amortization. We have presented EBITDA because it is used by the financial community as a method of measuring our performance and of evaluating the market value of companies considered to be in similar businesses. We believe that the line item on our consolidated statements of operations entitled “Income (loss) before income taxes and earnings (losses) from unconsolidated entities” is the most directly comparable GAAP measure to EBITDA. Since EBITDA is not a measure of performance calculated in accordance with GAAP, it should not be considered in isolation of, or as a substitute for, income (loss) before income taxes and earnings (losses) from unconsolidated entities as an indicator of operating performance. EBITDA, as we calculate it, may not be comparable to similarly titled measures employed by other companies. In addition, this measure is not necessarily a measure of our ability to fund our cash needs. As EBITDA excludes certain financial information as compared with income (loss) before income taxes and earnings (losses) from unconsolidated entities, the most directly comparable GAAP financial measure, users of this financial information should consider the type of events and transactions which are excluded. Our non-GAAP performance measure, EBITDA, has certain material limitations as follows:
•
It does not include interest expense. Because we have borrowed money to finance our operations, pay commitment fees to maintain our credit facility, and incur fees to issue letters of credit under the credit facility, interest expense is a necessary and ongoing part of our costs and has assisted us in generating revenue. Therefore, any measure that excludes interest expense has material limitations.
•
It does not include income taxes. Because the payment of income taxes is a necessary and ongoing part of our operations, any measure that excludes income taxes has material limitations.
•
It does not include depreciation or amortization expense. Because we use capital and intangible assets to generate revenue, depreciation and amortization expense is a necessary element of our cost structure. Therefore, any measure that excludes depreciation or amortization expense has material limitations.
A reconciliation of EBITDA to income (loss) before income taxes and earnings (losses) from unconsolidated entities is shown below (in millions):
Liquidity and Capital Resources
Liquidity
At August 31, 2012, our restricted and unrestricted cash and cash equivalents, escrowed cash and restricted and unrestricted short-term investments totaled $1,422.0 million (an increase of $204.9 million, or 16.8%, from $ 1,217.1 million at August 31, 2011). In addition to our cash and cash equivalents, the amount available under our Facility for revolving credit at August 31, 2012, was $804.9 million, which is equal to the lesser of: (i) $1,202.9 million, representing the total Facility commitment ($1,450.0 million) less outstanding performance letters of credit ($143.8 million) less outstanding financial letters of credit ($103.3 million); (ii) $1,146.7 million representing the Facility sublimit of $1,250.0 million less outstanding financial letters of credit ($103.3 million); or (iii) $804.9 million, representing the maximum additional borrowings allowed under the leverage ratio covenant contained in the Facility. However the Transaction Agreement, discussed in Part I - Item 1. Business, restricts any such new or increased lender commitments. See Note 1 - Description of Business and Summary of Significant Accounting Policies and Note 10 - Debt and Revolving Lines of Credit included in our consolidated financial statements beginning on page for discussion regarding the Transaction Agreement with CB&I and a description of our Facility’s financial covenants, respectively.
The actual amount available to us under the Facility for borrowing or the issuance of financial letters of credit is restricted by covenants within the Facility, the most restrictive being the maximum leverage ratio which is 2.5x our EBITDA as defined in the Facility.
At August 31, 2012, our working capital was $75.3 million compared to $(106.4) million at August 31, 2011. The increase in working capital year over year relates primarily to E&C Sale that occurred on August 31, 2012. Our working capital in fiscal years 2012 and 2011 was also significantly affected by the inclusion in current liabilities of the Westinghouse Bonds (which mature March 15, 2013) and the JPY interest rate swap, which together totaled $1.7 billion at August 31, 2012 and August 31, 2011. As discussed more fully elsewhere in this Form 10-K, the Westinghouse Bonds are revalued at each balance sheet date to the current JPY/USD exchange rate while the Put Options included in our Investment in Westinghouse are not. The impact on working capital associated with our Investment in Westinghouse and the related Westinghouse Bonds, the interest rate swap and deferred taxes, which are impacted by the cumulative foreign exchange loss on the Westinghouse Bonds, was $(442.9) million and $(434.7) million at August 31, 2012, and August 31, 2011, respectively.
Cash Flow
The following table sets forth the cash flows for the last three years (in millions):
Operating activities: We generated $129.8 million in operating cash flows during fiscal year 2012. Our E&I, Power and Plant Services segments provided cash from operations, primarily as a result of earnings for our E&I and Plant Services segments and due to cash collections associated with disputed change orders and contract closeouts for our Power segment. Also contributing to our positive operating cash flow was $21.6 million in dividends received by our Investment in Westinghouse segment. The positive cash flow was partially offset by the reversal of favorable working capital positions on projects being executed in our Power and E&C segments, as well as cash used to fund the interest on our Westinghouse Bonds.
We generated $120.5 million in operating cash flows during fiscal year 2011. Our Power, Plant Services, E&I and F&M segments provided cash from operations, primarily as a result of the earnings in those segments and positive working capital movements on contracts within our Power segment. Also contributing to our positive operating cash flow was the $27.8 million in dividends received by our Investment in Westinghouse segment. The positive cash flow from operations was partially offset by the reversal of favorable working capital positions on certain E&C and Power projects and the cash used from operations of our E&C, Corporate and Investment in Westinghouse segments.
In fiscal year 2010, we generated $466.6 million in operating cash flows primarily as a result of earnings generated from our operating segments, positive working capital movements and approximately $22.8 million in dividends received from our Investment in Westinghouse. The primary contributors of this positive operating cash flow were our Power and E&I segments.
Our operating cash flow is generated primarily by earnings and working capital movements of our projects. Our primary source of operating cash inflows is collections of our accounts receivable, which are generally invoiced based upon achieving performance milestones prescribed in our contracts. Our outstanding accounts receivable and costs and estimated earnings in excess of billings (CIE) are reviewed monthly and tend to be due from high quality credit clients such as multinational and national oil companies and industrial corporations, regulated utilities, and U.S. Government agencies. Because our clients tend to have the financial resources sufficient to honor their contractual obligations, we believe our accounts receivable and CIE are collectible. The timing of the milestone billings on fixed-priced contracts varies with each milestone within each contract but generally are invoiced within several months of first incurring costs associated with the prescribed work. Working capital movements on fixed-price contracts are based on the timing of our completion of the specified performance milestones. Generally, working capital movements are positive in the early phases of the fixed price contracts and can be negative in the later phases as the cash balances decline to equal earnings. If new fixed-priced projects are not booked with positive working capital terms to replace contracts in the latter phases of execution, our net working capital movement tends to be negative. For cost reimbursable contacts, we generally seek to bill and collect payments in advance of incurring project costs. However, cost-reimbursable contracts with the U.S. government provide for billings in the month subsequent to incurring the costs.
Our accounts receivable and CIE were 22.8% and 30.9% of current assets at August 31, 2012, and August 31, 2011, respectively. At August 31, 2012, approximately 49.3% of our CIE reflects costs from contracts being executed for the U.S. government, which we expect to invoice and collect in the normal course of business. See Note 5 - Accounts Receivable, Concentrations of Credit Risk, and Inventories and Note 20 -Accounting for Claims, Unapproved Change Orders and Incentives on Long-Term Construction Contracts to our consolidated financial statements beginning on page for additional information with respect to these working capital items.
Our cash position has created opportunities for us to obtain market discounts and provide protection from potential future price escalation for our EPC projects by undertaking an early procurement program. Accordingly, we continue to procure certain commodities, subcontracts and construction equipment early in the life cycle of major projects. This strategy was partially implemented in fiscal years 2010 and 2011 and continued to be utilized in fiscal year 2012. This strategy is intended to provide price and schedule certainty but requires that we expend some of our cash earlier than originally estimated under the contracts. During the fiscal years ended August 31, 2012, 2011 and 2010, respectively, we expended approximately $8.6 million, $7.9 million and $30.9 million under the early procurement program. It is our intent to balance any potential cancellation exposure associated with early procurements with our termination rights and obligations under the respective prime contracts with our clients and to help protect ourselves from suppliers failing to perform by requiring financial security instruments to support their performance. However, we can provide no assurance that our intent to manage our cancellation exposure will be successful.
Investing activities: Cash provided by investing activities was $430.3 million for fiscal year 2012, which included proceeds of approximately $290.0 million related to the E&C Sale recorded on August 31, 2012, partially offset by our continuous investment of a portion of our excess cash to support the growth of our business lines, with investments in property and equipment for fiscal year 2012 totaling $78.6 million. We also decreased the cash pledged, at our option, to secure certain outstanding letters of credit issued to support our project execution activities from $273.2 million at August 31, 2011 to no cash pledged at August 31, 2012.
Cash provided by investing activities was $172.7 million in fiscal year 2011 and resulted from converting short-term investments to cash. This compares to cash used in investing activities of $558.3 million in fiscal year 2010. While we continued to invest a portion of our excess cash to support the growth of our business lines, with investments in property and equipment for fiscal year 2011 totaling $101.8 million, our capital expenditures decreased from fiscal year 2010, primarily due to the completion of the construction of our module fabrication and assembly facility in Lake Charles, Louisiana in fiscal year 2010. Cash used for acquisition purposes during fiscal year 2011 consisted of a net price of $23.0 million for our purchase of the remaining 50% of a joint venture engineering company in India during the second quarter and $14.9 million, net of cash acquired, for our purchase of 100% of the outstanding stock of CPE during the third quarter. During fiscal year 2011, we also received a net return of cash used to collateralize standby letters of credit of approximately $4.4 million.
During the first quarter of fiscal year 2011, in connection with a nuclear ABWR global strategic partnership agreement between Shaw and Toshiba, Shaw committed to invest $250.0 million for an ABWR alliance with Toshiba, $100.0 million of which was made available as a secured credit facility to the entity sponsoring to assist in financing the development of the planned ABWR nuclear power plant reactors for the South Texas Projects 3 and 4. The credit facility was intended to convert to equity in the project’s sponsor upon the satisfaction of certain conditions, including the project receiving full notice to proceed. At May 31, 2011, we had advanced approximately $48.1 million under this credit facility. During the three months ended May 31, 2011, the project sponsor asked that we cease the majority of the work relating to individual orders issued under our EPC contract jointly obtained with Toshiba. Additionally, the project sponsors’ majority owner announced it was withdrawing from further financial participation in that company, and a major municipal utility announced it would indefinitely suspend all discussions regarding a potential agreement to purchase the power from the proposed facilities. Due to these changes, we reviewed the security supporting the loans outstanding (primarily partially manufactured equipment) and we wrote-off loans granted to the project entities totaling $48.1 million during our fiscal third quarter. We do not plan to make additional investments in ABWR related projects.
Financing activities: Cash used in financing activities in fiscal year 2012 totaled $141.4 million. During the fiscal year, in December 2011, we funded a modified "Dutch Auction" cash tender offer to purchase approximately 6.2 million shares of our common stock at a price of $24.25 per share totaling approximately $150.0 million, excluding fees and expenses related to the tender offer, under a repurchase program authorized by our Board of Directors in June 2011. While we continue to have an open authorization from our Board to repurchase up to $326.1 million in shares, subject to limitations contained in the Facility, the Transaction Agreement contains covenants that further restrict our ability to repurchase shares. See Note 1 - Description of Business and Summary of Significant Accounting Policies and Note 10 - Debt and Revolving Lines of Credit included in our consolidated financial statements beginning on page for discussions regarding the Transaction Agreement with CB&I and the limitations on our ability to acquire or retire our capital stock, respectively.
Cash used in financing activities for fiscal year 2011 totaled $530.5 million and included $500.0 million used to repurchase approximately 13.7 million shares of our common stock under the share repurchase program authorized by our Board of Directors in December 2010 and $21.8 million used to repurchase approximately 0.9 million shares of our common stock under the share repurchase program authorized by our Board of Directors in June 2011. The $500.0 million stock repurchase program completed by the Company in May 2011 was accomplished under the provisions of the previous agreement and therefore did not reduce any availability under the current Restated Credit Agreement to acquire or retire any of our capital stock. In addition, we used $12.9 million for distributions to noncontrolling shareholders of several of our consolidated joint ventures.
In January 2012, the members of a Middle Eastern joint venture, for which we have a direct interest of 53%, agreed to an $8.0 million loan facility to finance the continued development and working capital needs of the joint venture. The joint venture is consolidated in our financial statements with the $3.3 million minority interest portion of the loan classified as a short-term note payable on our balance sheet.
Many of our clients require that we issue letters of credit or surety bonds for work we perform. Our growth may be dependent on our ability to increase our letter of credit and surety bonding capacity, our ability to achieve timely release of existing letters of credit and surety bonds and/or our ability to obtain from our clients more favorable terms reducing letter of credit and surety requirements on new work. Our need for letter of credit capacity may increase as we seek additional construction projects. Increases in outstanding performance letters of credit issued under our Facility reduce the available borrowing capacity under our Facility.
Capital Resources
Our excess cash is generally invested in (1) money market funds governed under rule 2a-7 of the U.S. Investment Company Act of 1940 and rated AAA/Aaa by S&P and/or Moody’s, respectively, (2) interest bearing deposit accounts with commercial banks rated at least A/A2 or better by S&P and/or Moody’s, respectively, (3) publicly traded debt rated at least A/A2 or better by S&P and/or Moody’s, respectively, with maturities up to two years at the time of purchase, (4) publicly traded debt funds holding securities rated at least A/A2 or better by S&P and/or Moody’s, respectively.
At August 31, 2012, the amounts shown as restricted cash and restricted short-term investments in the accompanying balance sheet did not include any amounts used to voluntarily secure letters of credit or to secure insurance related contingent obligations in lieu of a letter of credit, as compared to $273.2 million at August 31, 2011.
Approximately $341.9 million of our cash at August 31, 2012, was held internationally for international operations. We have the ability to return certain amounts of our overseas funds to the U.S. but may incur incremental taxes under certain circumstances.
As discussed in Part I, Item 1 - Proposed Transaction Agreement, the Transaction is subject to a number of conditions, including, but not limited to, our possession of at least $800 million of unrestricted cash ( “Unrestricted Cash” as defined in the Transaction Agreement), as of the closing date; EBITDA ( “Company EBITDA” as defined in the Transaction Agreement) for the period of four consecutive fiscal quarters ending prior to the closing date of the Transaction of not less than $200 million; and net indebtedness for borrowed money ( “Net Indebtedness for Borrowed Money” as defined in the Transaction Agreement) not exceeding $100 million as of the closing date of the Transaction. The Transaction Agreement also restricts, among other items, our ability to increase borrowings, repurchase shares, and pay dividends. We expect to meet these conditions of the Transaction Agreement.
Credit Facility
On June 15, 2011, we entered into an unsecured second amended and restated credit agreement (Facility) with a group of lenders that provides lender commitments of up to $1,450.0 million under the Facility, all of which may be available for the issuance of performance letters of credit. Of the $1,450.0 million in commitments, a sublimit of $1,250.0 million may be available for the issuance of financial letters of credit and/or borrowings for working capital needs and general corporate purposes. The Restated Credit Agreement releases all collateral securing the previous credit agreement and contains an expiration of commitments on June 15, 2016. The Restated Credit Agreement continues to require guarantees by the Company’s material domestic subsidiaries.
During fiscal year 2012, no borrowings were made through the date of this filing under the Restated Credit Agreement; however, we had outstanding letters of credit of approximately $247.1 million as of August 31, 2012, and those letters of credit reduce what is otherwise available under our Facility.
At August 31, 2012, we were in compliance with the covenants contained in our Restated Credit Agreement.
See Note 10 - Debt and Revolving Lines of Credit included in our consolidated financial statements beginning on page for a description of: (1) the terms and interest rates related to our Facility and revolving lines of credit; (2) amounts available and outstanding for performance letters of credit, financial letters of credit and revolving loans under our Facility; and (3) a description of our Facility financial covenants and matters related to our compliance with those covenants during fiscal year 2011.
Other Revolving Lines of Credit
Additionally, we have various short-term (committed and uncommitted) revolving credit facilities from several financial institutions which are available for letters of credit and, to a lesser extent, working capital loans. See Note 10 - Debt and Revolving Lines of Credit included in our consolidated financial statements beginning on page for additional information.
Off Balance Sheet Arrangements
On a limited basis, performance assurances are extended to clients that guarantee certain performance measurements upon completion of a project. If performance assurances are extended to clients, generally our maximum potential exposure is the remaining cost of the work to be performed under engineering and construction contracts with potential recovery from third party vendors and subcontractors for work performed in the ordinary course of contract execution. As a result, the total costs of the project could exceed our original cost estimates and we could experience reduced gross profit or possibly a loss for that project. In some cases, where we fail to meet certain performance standards, we may be subject to contractual liquidated damages.
Commercial Commitments
Our lenders issue letters of credit on our behalf to clients, sureties and to secure other financial obligations in connection with our contract performance and in limited circumstances on certain other obligations of third parties. If drawn, we are required to reimburse our lenders for payments on these letters of credit. At August 31, 2012, we had both letter of credit commitments and surety bonding obligations, which were generally issued to secure performance and financial obligations on certain of our construction contracts, which expire as follows (in millions):
(1)
Commercial Commitments exclude any letters of credit or bonding obligations associated with outstanding bids or proposals or other work not awarded prior to September 1, 2012.
Of the amount of outstanding letters of credit at August 31, 2012, $173.8 million were issued to clients in connection with contracts (performance letters of credit). Of the $173.8 million, five clients held $160.5 million or 92.3% of the outstanding letters of credit. The largest aggregate amount of letters of credit issued and outstanding at August 31, 2012, to a single client on a single project is $49.7 million. Our ability to borrow under our Facility is reduced by the dollar value of the letters of credit we have outstanding.
At August 31, 2012 and August 31, 2011, we had total surety bonds of $467.6 million and $909.5 million, respectively. However, based on our percentage-of-completion on contracts covered by these surety bonds, our estimated potential liability at August 31, 2012 and August 31, 2011, was $74.4 million and $104.7 million, respectively.
Fees related to these commercial commitments were $8.7 million for fiscal year 2012 compared to $9.6 million for fiscal year 2011.
For a discussion of long-term debt and a discussion of contingencies and commitments, see Note 10 - Debt and Revolving Lines of Credit and Note 15 - Contingencies and Commitments, respectively, included in our consolidated financial statements beginning on page.
Aggregate Contractual Obligations
As of August 31, 2012 we had the following contractual obligations (in millions):
(a)
Amounts for long-term debt obligations represent both principal and interest payments. Future interest payments for the JPY-denominated Westinghouse bonds reflect actual USD amounts to be paid.
(b)
On October 16, 2006, we entered into an interest rate swap agreement through March 15, 2013, in the aggregate notional amount of JPY 78 billion. At August 31, 2012, the fair value of the swap totaled approximately $13.4 million and is included as a current liability in our consolidated financial statements beginning on page.
(c)
Purchase obligations primarily relate to IT technical support and software maintenance contracts. Commitments pursuant to subcontracts and other purchase orders related to engineering and construction contracts are not included since such amounts are expected to be funded under contract billings.
(d)
Pension obligations, representing amounts expected to be paid out from plans, noted under the heading “After 5 years” are presented for the years 2018-2022.
See Note 10 - Debt and Revolving Lines of Credit, Note 14 - Operating Leases, Note 15 - Contingencies and Commitments and Note 18 - Employee Benefit Plans included in our consolidated financial statements beginning on page for additional information.
Backlog of Unfilled Orders
General. Our backlog represents management’s estimate of potential future revenues we expect may result from contracts awarded to us by clients. Backlog is estimated using legally binding agreements for projects that management believes are likely to proceed. Management evaluates the potential backlog value of each project awarded based upon the nature of the underlying contract, commitment and other factors, including the economic, financial and regulatory viability of the project and the likelihood of the contract proceeding. Projects in backlog may be altered (increased or decreased) for scope change and/or may be suspended or cancelled at any time by our clients.
New bookings and ultimately the amount of backlog of unfilled orders is largely a reflection of the global economic trends. The volume of backlog and timing of executing the work in our backlog is important to us in anticipating our operational needs. Backlog is not a measure defined in GAAP, and our methodology for determining backlog may not be comparable to the methodology used by other companies in determining their backlog. We cannot assure you that revenues projected in our backlog will be realized, or if realized, will result in profits.
All contracts contain client termination for convenience clauses, and many of the contracts in backlog provide for cancellation fees in the event clients cancel projects whether for convenience or a stated cause. These cancellation fees usually provide for reimbursement of our out-of-pocket costs, revenues associated with work performed prior to cancellation, and to varying degrees, a percentage of the profits we would have realized had the contract been completed.
The process to add new awards to backlog is generally consistent among our segments and is based on us receiving a legally binding agreement with clients plus management’s assessment that the project will likely proceed. Additional details relating to each segment’s booking process follows:
Power Segment. We define backlog in our Power segment to include projects for which we have received legally binding commitments from our clients and projects for which our consolidated joint venture entities have received legally binding commitments. These commitments typically take the form of a written contract for a specific project or a purchase order, and sometimes require that we estimate anticipated future revenues, often based on engineering and design specifications that have not been finalized and may be revised over time. Backlog excludes amounts expected to be performed subsequent final approval from the customer when we do not expect to receive such authorization within the next five years. The value of work subcontracted to our F&M segment is removed from the backlog of the Power segment and is shown in the backlog of our F&M segment.
Plant Services Segment. We define backlog in the Plant Services segment to include projects which are based on legally binding contracts from our clients. These commitments typically take the form of a written contract or a specific project purchase order and can cover periods ranging from three to five years. Many of these contracts cover reimbursable work to be designated and executed over the term of the agreement. Accordingly, certain of the backlog amounts are based on the underlying contracts/purchase orders, our clients’ historic maintenance requirements, as well as our future cost estimates based on the client’s indications of future plant outages. Our Plant Services segment backlog does not include any awards for work expected to be performed more than five years after the date of our financial statements.
E&I Segment. Our E&I segment’s backlog includes the value of awarded contracts including the estimated value of unfunded work. The unfunded backlog generally represents U.S. government project awards for which the project funding has been partially authorized or awarded by the relevant government authorities (e.g., authorization or an award has been provided for only the initial year of a multi-year project). Because of appropriation limitations in the U.S. government budget processes, confirmed funding is usually appropriated for only one year at a time and, in some cases, for periods less than one year. Some contracts may contain a number of one-year options. Amounts included in backlog are based on the contract’s total awarded value and our estimates regarding the amount of the award that will ultimately result in the recognition of revenues. These estimates may be based on indications provided by our clients of future values, our estimates of the work required to complete the contract, our experience with similar awards and similar clients, and our knowledge and expectations relating to the given award. Generally, the unfunded component of new contract awards is added to backlog at 75% of our contract value or our estimated proportionate share of a contract for which there are multiple award recipients. The programs are monitored, estimates are reviewed periodically, and adjustments are made to the amounts included in backlog and in unexercised contract options to properly reflect our estimate of total contract revenue in the E&I segment backlog. Our E&I segment backlog does not generally include any awards (funded or unfunded) for work expected to be performed more than five years after the date of our financial statements. The value of work subcontracted to our F&M segment is removed from the backlog of our E&I segment and is shown in the backlog of our F&M segment.
F&M Segment. We define backlog in the F&M segment to include projects for which we have received a legally binding commitment from our clients. These commitments typically take the form of a written contract for a specific project, a purchase order, or a specific indication of the amount of time or material we need to make available for clients’ anticipated projects under alliance type agreements. A significant amount of our F&M segment’s backlog results from inter-company awards received from our Power and E&I segments. In such cases, we include the value of the subcontracted work in our F&M segment’s backlog and exclude it from the corresponding affiliate segment.
At August 31, 2012, and August 31, 2011, our backlog was as follows (in millions except for percentages):
Our backlog decreased $2.9 billion in the fiscal year ended August 31, 2012, as compared to August 31, 2011. The decrease in total backlog was primarily driven by reduced bookings during fiscal year 2012. In addition, our Power segment experienced an approximate $1.0 billion net decrease related to domestic EPC contracts on new-build nuclear power units. This decrease was the result of the removal from backlog of two AP1000 nuclear power units in Florida, as an additional client schedule delay pushed the majority of this work to periods beyond the next five years. This reduction was partially offset by a significant increase related to the receipt in fiscal year 2012 of full notice to proceed on two new AP1000 nuclear power units in South Carolina, which allowed us to record the balance (i.e. the majority) of this project into backlog. Plant Services segment’s new bookings throughout this fiscal year related to nuclear power plant maintenance agreements. A significant component of the reduction in our F&M segment’s backlog was a $100 million partial cancellation in fiscal year 2012 of an existing order on a project for which work continues on other aspects of this project. The reduction in our E&I segment’s backlog in fiscal year 2012 includes a $200 million change in the estimated future contract revenue expected under a multi-year contract with the U.S. Government.
Earlier this fiscal year, a client of our Power segment suspended work on a capital improvement project at a currently-operating nuclear power plant. The project has not been canceled. We continue to monitor this situation and if the project is canceled or if we believe the project will not proceed, we will remove the project from backlog. The amount of this project still to be executed and included in backlog approximates $500 million.
The majority of our consolidated backlog is comprised of contracts with regulated electric utility companies, national or international oil companies and the U.S. government (which alone comprises 90.8% of our E&I segment’s backlog). We believe these clients provide us with a stable book of business and possess the financial strength to endure the economic challenges that may persist from the recent economic downturn. Cancellation of any of our significant projects in backlog would result in a significant reduction of our reported backlog as well as on our future earnings.
Inflation and Changing Prices
Historically, overall inflation and changing prices in the economies in which we perform our services have a minimal effect on our gross profit and our income from continuing operations. Generally, for our long-term contract pricing and related cost to complete estimates, we attempt to consider the impact of potential price changes on deliveries of materials and equipment expected to occur in the future. Additionally, for our projects that are reimbursable at cost plus a fee, we generally are reimbursed for all contractual costs including rising costs in an inflationary environment. Certain of our fixed-price contracts in our Power segment frequently may provide for commodity price adjustments tied to various indices. However, to the extent we receive cash collections from clients in advance of payments due vendors and subcontractors, we could be exposed to the risks of inflation. Additionally, we may advance purchase materials and equipment to minimize the impacts of potential future inflation. While these actions are attempts to mitigate inflation risks, there can be no assurance that such actions will be successful. The EPC nuclear contracts currently being executed tend to have longer execution periods than projects we previously executed. Accordingly there can be no assurance that our efforts to mitigate inflation risks will be successful. See Part I, Item 1 - Business - Types of Contracts and Part I, Item 1A - Risk Factors for additional information about the nature of our contracts. Additionally, Part II, Item 7A
Item 7A. Quantitative and Qualitative Disclosures about Market Risk
We do not enter into derivative financial instruments for speculative or trading purposes. In the normal course of business, we have exposure to both interest rate risk and foreign currency exchange rate risk.
Interest Rate Risk
We are exposed to interest rate risk due to changes in interest rates, primarily in the U.S. and Japan. Our policy is to manage interest rate risk through the use of a combination of fixed and floating rate debt and short-term fixed rate investments.
Our Facility provides that both revolving credit loans and letters of credit may be issued within the $1,450.0 million unexpired limit of the Facility. Although there were no borrowings as of August 31, 2012, the interest rate that would have applied to any borrowings under the Facility was 4.0%. For further discussion, see Note 10 - Debt and Revolving Lines of Credit included in consolidated financial statements beginning on page.
At August 31, 2012, we have outstanding variable rate Westinghouse bonds (face value billion JPY) with a coupon rate of 0.70% above the sixth-month JPY LIBOR rate (0.33% as of August 31, 2012). We have entered into an interest rate swap agreement with a major bank through March 15, 2013, which fixes our interest payments at 2.398%. The effectiveness of this swap is dependent on our counterparty’s continued performance.
The table below provides information about our outstanding debt instruments (including capital leases) that are sensitive to changes in interest rates. The table presents principal cash repayments and related weighted average interest rates by expected maturity dates. The table is denominated in millions of U.S. Dollars, which is our reporting currency, and is accurate as of August 31, 2012.
The calculated fair value of long-term debt (including capital leases) incorporates the face value of the Westinghouse Bonds and foreign currency transaction adjustments recognized at August 31, 2012 resulting from revaluing the JPY-denominated Westinghouse Bonds to the USD equivalent at the end of the period.
Foreign Currency Exchange Rate Risk
During fiscal year 2007, we issued the JPY-denominated Westinghouse Bonds in connection with our Westinghouse Investment. These bonds, which have an aggregate face value of JPY128.98 billion (or $1.64 billion as of August 31, 2012), are revalued at the end of each accounting period using period-end exchange rates. Although the Put Options associated with our Westinghouse Investment, when exercised in full, mitigate the amount of foreign exchange loss incurred with respect to these bonds, a significant and sustained appreciation in the value of the JPY versus the U.S. Dollar could significantly reduce our returns on our investment in Westinghouse. See Note 8 - Equity Method Investments and Variable Interest Entities and Note 10 - Debt and Revolving Lines of Credit included in Part II, Item 8
Item 8. Financial Statements and Supplementary Data
The response to this item is incorporated by reference from our consolidated financial statements and notes thereto which are included in this report beginning on page. Certain selected quarterly financial data is included under Item 7 of this Form 10-K.
Item 9.
Item 9. Changes in and Disagreements with Accountants on Accounting and Financial Disclosure
There have been no changes in or disagreements with accountants on accounting or financial disclosure matters during the periods covered by this Form 10-K.
Item 9A.
Item 9A. Controls and Procedures
a) Management’s Quarterly Evaluation of Disclosure Controls and Procedures
Disclosure controls and procedures (as defined in Rules 13a-15(e) and 15d-15(e) under the Exchange Act) are designed to ensure that information required to be disclosed in our reports filed under the Exchange Act is recorded, processed, summarized and reported within the time periods specified in the SEC’s rules and forms. This information 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. Our management, under the supervision and with the participation of our Chief Executive Officer and Chief Financial Officer, evaluated the effectiveness of the design and operation of our disclosure controls and procedures as of the end of the most recent fiscal quarter reported on herein. Based on that evaluation, our Chief Executive Officer and Chief Financial Officer concluded that our disclosure controls and procedures were effective as of August 31, 2012.
b) Management’s Annual Report on Internal Control over Financial Reporting
Our management is responsible for establishing and maintaining adequate internal control over financial reporting (as defined in Rules 13a-15(f) and 15d-15(f) under the Exchange Act). Our internal control over financial reporting is a process designed by management, under the supervision of our Chief Executive Officer and Chief Financial Officer, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of consolidated financial statements for external purposes in accordance with GAAP. Our internal control over financial reporting includes those policies and procedures that (i) pertain to the maintenance of records that, in reasonable detail, accurately and fairly reflect the transactions and dispositions of our assets; (ii) provide reasonable assurance that transactions are recorded as necessary to permit preparation of financial statements in accordance with GAAP, and that our receipts and expenditures are being made only in accordance with authorizations of management and our directors; and (iii) provide reasonable assurance regarding prevention or timely detection of unauthorized acquisition, use or disposition of our assets that could have a material effect on our consolidated financial statements.
Because of its inherent limitations, internal control over financial reporting may not prevent or detect misstatements. Also, projections of any evaluation of effectiveness to future periods are subject to the risk that controls may become inadequate because of changes in conditions, or that the degree of compliance with the policies or procedures may deteriorate. Accordingly, even effective internal control over financial reporting can only provide reasonable assurance of achieving their control objectives.
In connection with our annual evaluation of internal control over financial reporting, our management, under the supervision and with the participation of our Chief Executive Officer and Chief Financial Officer, assessed the effectiveness as of August 31, 2012 of our internal control over financial reporting based on criteria established in Internal Control - Integrated Framework issued by the Committee of Sponsoring Organizations of the Treadway Commission (COSO). Based on this assessment, management has concluded our internal control over financial reporting was effective as of August 31, 2012, based upon the criteria issued by COSO.
KPMG LLP, the independent registered public accounting firm who audited the consolidated financial statements included in this Form 10-K, has issued a report on our internal control over financial reporting. This report, dated October 19, 2012, appears on page of this Form 10-K.
c) Changes in Internal Control over Financial Reporting
There were no changes in our system of internal control over financial reporting during the three months ended August 31, 2012, that have materially affected, or are reasonable likely to materially affect, our internal control over financial reporting.
Item 9B.
Item 9B. Other Information
None.
PART III
Item 10.
Item 10. Directors, Executive Officers and Corporate Governance
Directors, Executive Officers, Promoters and Control Persons
The information required by Paragraph (a), and Paragraphs (c) through (g) of Item 401 of Regulation S-K (except for information required by Paragraph (e) of that Item to the extent the required information pertains to our executive officers) and Item 405 of Regulation S-K is hereby incorporated by reference from our definitive proxy statement to be filed with the SEC pursuant to Regulation 14A within 120 days after the close of our fiscal year or, if we do not file a definitive proxy statement within that time, from an amendment to this Form 10-K.
The following table presents the information required by Paragraph (b) of Item 401 of Regulation S-K.
Name
Age
Position
J.M. Bernhard, Jr.
Chairman of the Board of Directors, President and Chief Executive Officer
George P. Bevan
President of the Environmental & Infrastructure (E&I) Group
David L. Chapman, Sr.
President of the Fabrication & Manufacturing (F&M) Group
John Donofrio
Executive Vice President, General Counsel and Corporate Secretary
Brian K. Ferraioli
Executive Vice President and Chief Financial Officer
Timothy J. Poché
Senior Vice President and Chief Accounting Officer
Eli Smith
President of the Power Group
Corporate Governance
The information required by Items 407(c)(3), (d)(4) and (d)(5) of Regulation S-K is incorporated by reference from our definitive proxy statement to be filed with the SEC pursuant to Regulation 14A within 120 days after the close of our fiscal year or, if we do not file a definitive proxy statement within that time, from an amendment to this Form 10-K.
Code of Corporate Conduct and Ethics
We have adopted a Code of Corporate Conduct applicable to all of our employees, officers and directors. We also have in place a Code of Ethics for the chief executive officer and senior financial officers. Copies of the Codes are filed as exhibits to this Form 10-K, and they are posted on our web site at www.shawgrp.com. Any changes to or waivers from these codes will be disclosed as required by law and the NYSE. Shareholders may request free copies of the Codes from:
The Shaw Group Inc.
Attention: Investor Relations
4171 Essen Lane
Baton Rouge, Louisiana 70809
(225)932-2500
www.shawgrp.com
Item 11.
Item 11. Executive Compensation
Pursuant to General Instruction G to Form 10-K, we incorporate by reference into this Item the information to be disclosed in our definitive proxy statement for our 2013 Annual Meeting of Shareholders, which will be filed with the SEC pursuant to Regulation 14A within 120 days after the close of our fiscal year or, if we do not file a definitive proxy statement within that time, from an amendment to this Form 10-K.
Item 12.
Item 12. Security Ownership of Certain Beneficial Owners and Management and Related Stockholder Matters
Pursuant to General Instruction G to Form 10-K, we incorporate by reference into this Item the information to be disclosed in our definitive proxy statement for our 2013 Annual Meeting of Shareholders, which will be filed with the SEC pursuant to Regulation 14A within 120 days after the close of our fiscal year or, if we do not file a definitive proxy statement within that time, from an amendment to this Form 10-K.
Item 13.
Item 13. Certain Relationships and Related Transactions, and Director Independence
Pursuant to General Instruction G to Form 10-K, we incorporate by reference into this Item the information to be disclosed in our definitive proxy statement for our 2013 Annual Meeting of Shareholders, which will be filed with the SEC pursuant to Regulation 14A within 120 days after the close of our fiscal year or, if we do not file a definitive proxy statement within that time, from an amendment to this Form 10-K.
Item 14.
Item 14. Principal Accounting Fees and Services
Pursuant to General Instruction G to Form 10-K, we incorporate by reference into this Item the information to be disclosed in our definitive proxy statement for our 2013 Annual Meeting of Shareholders, which will be filed with the SEC pursuant to Regulation 14A within 120 days after the close of our fiscal year or, if we do not file a definitive proxy statement within that time, from an amendment to this Form 10-K.
PART IV
Item 15.
Item 15. Exhibits, Financial Statement Schedules
(a) Documents filed as part of this Form 10-K.
1. Financial Statements.
See Part II, Item 8 - Financial Statements and Supplementary Data.
Additionally, the following financial statements are included in this Form 10-K pursuant to Rule 3-09 of Regulation S-X:
Combined Financial Statements of Toshiba Nuclear Energy Holdings (US), Inc. and Toshiba Nuclear Energy Holdings (UK) Ltd.
Report of Independent Registered Public Accounting Firm - Ernst & Young LLP
Combined Balance Sheets as of March 31, 2012 and 2011
Combined Statements of Operations for the fiscal years ended March 31, 2012, 2011 and 2010
Combined Statements of Stockholders’ Equity for the fiscal years ended March 31, 2012, 2011 and 2010
Combined Statements of Cash Flows for the fiscal years ended March 31, 2012, 2011 and 2010
Notes to Combined Financial Statements
2. Financial Statement Schedules.
All schedules have been omitted because the information is not required or not in amounts sufficient to require submission of the schedule, or because the information required is included in the consolidated financial statements and notes thereto.
3. Exhibit Listing.
The exhibits marked with the cross symbol (†) are filed herewith. The exhibits marked with two cross symbols (††) are furnished herewith. The exhibits marked with the pound symbol (#) have been redacted and are the subject of an application for confidential treatment filed with the SEC pursuant to rules and regulations promulgated under the Exchange Act. The exhibits marked with the asterisk symbol (*) are management contracts or compensatory plans or arrangements filed pursuant to Item 601(b)(10)(iii) of Regulation S-K.
The exhibits marked with the section symbol (§) are interactive data files. Pursuant to Rule 406T of Regulation S-T, these interactive data files (i) are not deemed filed or part of a registration statement or prospectus for purposes of Sections 11 or 12 of the Securities Act of 1933, are not deemed filed for purposes of Section 18 of the Securities Exchange Act of 1934, irrespective of any general incorporation language included in any such filings, and otherwise are not subject to liability under these sections; and (ii) are deemed to have complied with Rule 405 of Regulation S-T (“Rule 405”) and are not subject to liability under the anti-fraud provisions of the Section 17(a)(1) of the Securities Act of 1933, Section 10(b) of the Securities Exchange Act of 1934 or under any other liability provision if we have made a good faith attempt to comply with Rule 405 and, after we become aware that the interactive data files fail to comply with Rule 405, we promptly amend the interactive data files.
Exhibit
Number
Document Description
Report or Registration Statement
SEC File or Registration Number
Exhibit or Other Reference
2.01
Investment Agreement, dated as of October 4, 2006, by and among Toshiba, Toshiba Nuclear Energy Holdings Corporation (US) Inc., a Delaware corporation (the “US Company”), The Shaw Group Inc. (the “Company”) and Nuclear Energy Holdings, L.L.C. (“NEH”)
Form 8-K filed on October 18, 2006
1-12227
2.01
2.02
Investment Agreement, dated as of October 4, 2006, by and among Toshiba, Toshiba Nuclear Energy Holdings (UK) Limited, a company registered in England with registered number 5929672 (the “UK Company”), the Company and NEH
Form 8-K filed on October 18, 2006
1-12227
2.02
2.03
Transaction Agreement, dated as of July 30, 2012, by and among Chicago Bridge & Iron Company N.V., Crystal Acquisition Subsidiary Inc. and The Shaw Group Inc.
Form 8-K filed on July 30, 2012
1-12227
2.1
3.01
Composite Articles of Incorporation of The Shaw Group Inc. as of January 5, 2011
Form 10-Q for the quarter ended May 31, 2012
1-12227
3.01
3.02
Amended and Restated By-Laws of the Company dated as of January 30, 2007
Form 10-K/A (Amendment No. 1) for the fiscal year ended August 31, 2006
1-12227
3.2
4.01
Specimen Common Stock Certificate
Form 10-K for the fiscal year ended August 31, 2007
1-12227
4.1
Exhibit
Number
Document Description
Report or Registration Statement
SEC File or Registration Number
Exhibit or Other Reference
4.02
Rights Agreement, dated as of July 9, 2001, between the Company and First Union National Bank, as Rights Agent, including the Form of Articles of Amendment to the Restatement of the Articles of Incorporation of the Company as Exhibit A, the form of Rights Certificate as Exhibit B and the form of the Summary of Rights to Purchase Preferred Shares as Exhibit C (Exhibit A-1 and A-2)
Form 8-A filed on July 30, 2001
1-12227
99.1
4.03
The Shaw Group Inc. hereby agrees to furnish copies of instruments defining the rights of holders of long-term debt of The Shaw Group Inc. and its consolidated subsidiaries to the Commission upon request.
*10.01
The Shaw Group Inc. Stone & Webster Acquisition Stock Option Plan
Form S-8 filed on June 12, 2001
333-62856
4.6
*10.02
The Shaw Group Inc. 1993 Employee Stock Option Plan, amended and restated through October 8, 2001
Form 10-K for the fiscal year ended August 31, 2001
1-12227
10.1
*10.03
The Shaw Group Inc. 401(k) Plan
Form S-8 filed on May 4, 2004
333-115155
4.6
*10.04
The Shaw Group Inc. 401(k) Plan for Certain Hourly Employees
Form S-8 filed on May 4, 2004
333-115155
4.6
*10.05
Flexible Perquisites Program for certain executive officers
Form 8-K filed on November 1, 2004
1-12227
*10.06
Trust Agreement, dated as of January 2, 2007 by and between the Company and Fidelity Management Trust Company for The Shaw Group Deferred Compensation Plan Trust
Form 10-Q for the quarter ended February 28, 2007
1-12227
10.6
*10.07
Employee Indemnity Agreement dated as of July 12, 2007 between the Company and Brian K. Ferraioli
Form 10-K for the fiscal year ended August 31, 2007
1-12227
10.34
*10.08
The Shaw Group Inc. 2005 Non-Employee Director Stock Incentive Plan, amended and restated through November 2, 2007
Form 10-Q for the quarter ended November 30, 2007
1-12227
10.5
*10.09
Offer Letter dated as of August 31, 2007, by and between the Company and Michael J. Kershaw
Form 8-K filed on December 21, 2007
1-12227
10.1
Exhibit
Number
Document Description
Report or Registration Statement
SEC File or Registration Number
Exhibit or Other Reference
*10.10
Written description of the Company’s compensation policies and programs for non-employee directors
Proxy Statement for the 2009 Annual Meeting of Shareholders contained in The Shaw Group Inc.’s Schedule 14A filed on December 24, 2008
1-12227
*10.11
Amended and Restated Employment Agreement dated as of December 22, 2008 by and between the Company and Gary P. Graphia
Form 8-K filed on December 24, 2008
1-12227
10.1
*10.12
Amended and Restated Employment Agreement dated as of December 31, 2008, by and between the Company and J.M. Bernhard, Jr.
Form 8-K filed on January 7, 2009
1-12227
10.1
*10.13
Amended and Restated Employment Agreement dated as of December 31, 2008 between the Company and Brian K. Ferraioli
Form 8-K filed on January 7, 2009
1-12227
10.2
*10.14
The Shaw Group Inc. 2008 Omnibus Incentive Plan
Form 10-Q for the period February 28, 2009
1-12227
10.8
*10.15
Amended and Restated Employment Agreement dated as of December 31, 2008 by and between the Company and George P. Bevan
Form 10-Q for the quarter ended February 28, 2009
1-12227
10.13
*10.16
Amended and Restated Employment Agreement dated as of December 31, 2008 by and between the Company and Lou Pucher
Form 10-Q for the quarter ended February 28, 2009
1-12227
10.16
*10.17
The Shaw Group Deferred Compensation Plan
Form 10-Q for the quarter ended February 28, 2009
1-12227
10.1
*10.18
The Shaw Group Deferred Compensation Plan Form of Adoption
Form 10-Q for the quarter ended February 28, 2009
1-12227
10.11
*10.19
Form of Employee Incentive Stock Option Award under The Shaw Group Inc. 2008 Omnibus Incentive Plan
Form 10-Q for the period November 30, 2009
1-12227
10.67
*10.20
Form of Employee Nonqualified Stock Option Award Agreement under The Shaw Group Inc. 2008 Omnibus Incentive Plan
Form 10-Q for the period November 30, 2009
1-12227
10.68
*10.21
Form of Canadian Employee Incentive Stock Option Agreement under The Shaw Group Inc. 2008 Omnibus Incentive Plan
Form 10-Q for the period November 30, 2009
1-12227
10.70
*10.22
Written description of the Company’s incentive compensation policies programs for executive officers, including performance targets for fiscal year end 2009
Proxy Statement for the 2009 Annual Meeting of Shareholders contained in The Shaw Group Inc.’s Schedule 14A filed on December 17, 2009
1-12227
Exhibit
Number
Document Description
Report or Registration Statement
SEC File or Registration Number
Exhibit or Other Reference
*10.23
Form of Nonemployee Director Nonqualified Stock Option Award Agreement under The Shaw Group Inc. 2008 Omnibus Incentive Plan
Form 10-Q for the quarter ended February 28, 2010
1-12227
10.46
*10.24
Form of Nonemployee Director Restricted Stock Unit Award Agreement under The Shaw Group Inc. 2008 Omnibus Incentive Plan
Form 10-Q for the quarter ended February 28, 2010
1-12227
10.47
*10.25
Amendment to the Amended and Restated Employment Agreement dated December 31, 2008, by and between the Company and J.M. Bernhard, Jr
Form 10-Q for the quarter ended May 31, 2010
1-12227
10.48
*10.26
Second Amended and Restated Employment Agreement dated as of July 22, 2010 by and between the Company and John Donofrio
Form 10-K for the fiscal year ended August 31, 2010
1-12227
10.24
*10.27
Amended and Restated Employment Agreement dated as of April 8, 2011 by and between the Company and David L. Chapman, Sr
Form 10-Q for the quarter ended February 28, 2011
1-12227
10.3
*10.28
Employment Agreement dated as of February 2, 2011 by and between the Company and Clarence Ray
Form 10-Q for the quarter ended February 28, 2011
1-12227
10.4
*10.29
Second Amended and Restated Employment Agreement dated December 12, 2011, by and between the Company and J. M. Bernhard, Jr.
Form 10-Q for the quarter ended November 30, 2011
1-12227
10.1
*10.30
Letter Agreement dated December 9, 2011, by and between the Company and Timothy J. Poché
Form 8-K filed on January 26, 2012
1-12227
10.1
*10.31
Consulting Agreement dated May 23, 2012, by and between The Shaw Group Inc. and Gary P. Graphia
Form 8-K filed on May 29, 2012
1-12227
10.1
†*10.32
Form of Employee Restricted Stock Unit Award Agreement under The Shaw Group Inc. 2008 Omnibus Incentive Plan
†*10.33
Form of Employee Performance Cash Unit Award Agreement under The Shaw Group Inc. 2008 Omnibus Incentive Plan
†*10.34
Form of Employee Cash Settled Restricted Stock Unit Award Agreement under The Shaw Group Inc. 2008 Omnibus Incentive Plan
†*10.35
Form of Section 16 Officer Restricted Stock Unit Award Agreement under The Shaw Group Inc. 2008 Omnibus Incentive Plan
†*10.36
Form of Section 16 Officer Performance Cash Unit Award Agreement under The Shaw Group Inc. 2008 Omnibus Incentive Plan
†*10.37
Retention Bonus dated October 16, 2012 by and between the Company and Timothy Poché
Exhibit
Number
Document Description
Report or Registration Statement
SEC File or Registration Number
Exhibit or Other Reference
10.38
Asset Purchase Agreement, dated as of July 14, 2000, among Stone & Webster, Incorporated, certain subsidiaries of Stone & Webster, Incorporated and the Company
Form 8-K filed on July 28, 2000
1-12227
2.1
10.39
Composite Asset Purchase Agreement, dated as of January 23, 2002, by and among the Company, The IT Group, Inc. and certain subsidiaries of The IT Group, Inc., including the following amendments:(i) Amendment No. 1, dated January 24, 2002, to Asset Purchase Agreement, (ii) Amendment No. 2, dated January 29, 2002, to Asset Purchase Agreement, and (iii) a letter agreement amending Section 8.04(a)(ii) of the Asset Purchase Agreement, dated as of April 30, 2002, between The IT Group, Inc. and the Company
Form 8-K filed on May 16, 2002
1-12227
2.1
10.40
Amendment No. 3, dated May 2, 2002, to Asset Purchase Agreement by and among the Company, The IT Group, Inc. and certain subsidiaries of The IT Group, Inc.
Form 8-K filed on May 16, 2002
1-12227
2.2
10.41
Amendment No. 4, dated May 3, 2002, to Asset Purchase Agreement by and among the Company, The IT Group, Inc. and certain subsidiaries of the IT Group, Inc.
Form 8-K filed on May 16, 2002
1-12227
2.3
10.42
Put Option Agreement, dated as of October 13, 2006, between NEH and Toshiba related to shares in the US acquisition company
Form 8-K filed on October 18, 2006
1-12227
10.2
10.43
Put Option Agreement, dated as of October 13, 2006, between NEH and Toshiba related to shares in the UK acquisition company
Form 8-K filed on October 18, 2006
1-12227
10.3
10.44
Shareholders Agreement, dated as of October 4, 2006, by and among Toshiba, Toshiba Nuclear Energy Holdings (US) Inc. the US Company, NEH, TSB Nuclear Energy Investment US Inc., a Delaware corporation and a wholly owned subsidiary of Toshiba and Ishikawajima-Harima Heavy Industries Co., Ltd., a corporation organized under the laws of Japan (“IHI”)
Form 8-K filed on October 18, 2006
1-12227
10.4
10.45
Shareholders Agreement, dated as of October 4, 2006, by and among Toshiba, Toshiba Nuclear Energy Holdings (UK) Inc., the UK Company, NEH, IHI and TSB Nuclear Energy Investment UK Limited, a company registered in England with registered number 5929658
Form 8-K filed on October 18, 2006
1-12227
10.5
10.46
Bond Trust Deed, dated October 13, 2006, between NEH and The Bank of New York, as trustee
Form 8-K filed on October 18, 2006
1-12227
10.6
Exhibit
Number
Document Description
Report or Registration Statement
SEC File or Registration Number
Exhibit or Other Reference
10.47
Parent Pledge Agreement, dated October 13, 2006, between the Company and The Bank of New York
Form 8-K filed on October 18, 2006
1-12227
10.7
10.48
Issuer Pledge Agreement, dated October 13, 2006, between NEH and The Bank of New York
Form 8-K filed on October 18, 2006
1-12227
10.8
10.49
Deed of Charge, dated October 13, 2006, among NEH, The Bank of New York, as trustee, and Morgan Stanley Capital Services Inc., as swap counterparty
Form 8-K filed on October 18, 2006
1-12227
10.9
10.50
Transferable Irrevocable Direct Pay Letter of Credit (Principal Letter of Credit) effective October 13, 2006 of Bank of America in favor of NEH
Form 8-K filed on October 18, 2006
1-12227
10.1
10.51
Transferable Irrevocable Direct Pay Letter of Credit (Interest Letter of Credit) effective October 13, 2006 of Bank of America in favor of NEH
Form 8-K filed on October 18, 2006
1-12227
10.11
10.52
Reimbursement Agreement dated as of October 13, 2006, between the Company and Toshiba
Form 8-K filed on October 18, 2006
1-12227
10.12
#10.53
Credit Agreement between Nuclear Innovation North America LLC, Nina Investments Holdings LLC, Nuclear Innovation North America Investments Llc, Nina Texas 3 LLC and Nina Texas 4 LLC Dated November 29, 2010
Form 10-Q for the quarter ended November 30, 2010
1-12227
10.1
#10.54
First Lien Intercreditor Agreement Dated As Of November 29, 2010, Among Nuclear Innovation North America LLC, Nina Investments Holdings LLC, Nuclear Innovation North America Investments LLC, Nina Texas 3 Llc and Nina Texas 4 LLC, The Other Grantors Party Hereto, Toshiba America Nuclear Energy Corporation, as Toshiba Collateral Agent, and The Shaw Group Inc., As Shaw Collateral Agent
Form 10-Q for the quarter ended November 30, 2010
1-12227
10.2
#10.55
Second Amended and Restated Credit Agreement, dated as of June 15, 2011, among the Company, as borrower; the Company’s subsidiaries signatories thereto, as guarantors; BNP Paribas, as administrative agent; and the other agents and lenders signatory thereto.
Form 8-K filed on June 21, 2011
1-12227
10.1
10.56
Agreement of Purchase and Sale dated May 21, 2012, by and between The Shaw Group Inc. and Technip, S.A.
Form 8-K filed on May 22, 2012
1-12227
2.1
14.01
The Shaw Group Inc. Code of Corporate Conduct dated June 2006
Form 10-K for the fiscal year ended August 31, 2007
1-12227
14.1
Exhibit
Number
Document Description
Report or Registration Statement
SEC File or Registration Number
Exhibit or Other Reference
14.02
The Shaw Group Inc. Code of Ethics for Chief Executive Officer and Senior Financial Officers (adopted as of December 16, 2003)
Form 10-K for the fiscal year ended August 31, 2007
1-12227
14.2
14.03
The Shaw Group Inc. Insider Trading Policy dated June 2006
Form 10-K for the fiscal year ended August 31, 2007
1-12227
14.3
†21.01
Subsidiaries of The Shaw Group Inc.
†23.01
Consent of KPMG LLP, independent registered public accounting firm of The Shaw Group Inc.
†23.02
Consent of Ernst & Young LLP, independent registered public accounting firm of Toshiba Nuclear Energy Holdings (US), Inc. and Toshiba Nuclear Energy Holdings (UK) Ltd.
†31.01
Certification pursuant to Section 302 of the Sarbanes-Oxley Act of 2002
†31.02
Certification pursuant to Section 302 of the Sarbanes-Oxley Act of 2002
††32.01
Certification pursuant to 18 U.S.C. Section 1350, as Adopted Pursuant to Section 906 of the Sarbanes-Oxley Act of 2002
††32.02
Certification pursuant to 18 U.S.C. Section 1350, as Adopted Pursuant to Section 906 of the Sarbanes-Oxley Act of 2002
§101.INS
XBRL Instance Document.
§101.SCH
XBRL Taxonomy Extension Schema Document.
§101.CAL
XBRL 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.
SIGNATURES
Pursuant to the requirements of Section 13 or 15(d) 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.
Date: October 19, 2012
Pursuant to the requirements of the Securities Exchange Act of 1934, this report has been signed below, by the following persons on behalf of the registrant and in the capacities and on the dates indicated.
Signature
Title
Date
/s/ J. M. Bernhard, Jr.
Chairman of the Board, President and
Chief Executive Officer and Director
(Principal Executive Officer)
October 19, 2012
J. M. Bernhard, Jr.
/s/ Brian K. Ferraioli
Executive Vice President
and Chief Financial Officer
(Principal Financial Officer)
October 19, 2012
Brian K. Ferraioli
/s/ Timothy J. Poché
Senior Vice President
and Chief Accounting Officer
(Principal Accounting Officer)
October 19, 2012
Timothy J. Poché
/s/ Albert D. McAlister
Director
October 19, 2012
Albert D. McAlister
/s/ David W. Hoyle
Director
October 19, 2012
David W. Hoyle
/s/ James F. Barker
Director
October 19, 2012
James F. Barker
/s/ Daniel A. Hoffler
Director
October 19, 2012
Daniel A. Hoffler
/s/ Michael J. Mancuso
Director
October 19, 2012
Michael J. Mancuso
/s/ Thomas E. Capps
Director
October 19, 2012
Thomas E. Capps
/s/ Stephen R. Tritch
Director
October 19, 2012
Stephen R. Tritch
INDEX TO CONSOLIDATED FINANCIAL STATEMENTS OF
THE SHAW GROUP INC. AND SUBSIDIARIES
REPORT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
The Board of Directors and Shareholders
The Shaw Group Inc.:
We have audited The Shaw Group Inc.’s internal control over financial reporting as of August 31, 2012, based on criteria established in Internal Control - Integrated Framework issued by the Committee of Sponsoring Organizations of the Treadway Commission (COSO). The Shaw Group Inc.’s management is responsible for maintaining effective internal control over financial reporting and for its assessment of the effectiveness of internal control over financial reporting, included in the accompanying 2012 Annual Report on Form 10-K. Our responsibility is to express an opinion on The Shaw Group Inc.’s internal control over financial reporting based on our audit.
We conducted our audit in accordance with the standards of the Public Company Accounting Oversight Board (United States). Those standards require that we plan and perform the audit to obtain reasonable assurance about whether effective internal control over financial reporting was maintained in all material respects. Our audit included obtaining an understanding of internal control over financial reporting, assessing the risk that a material weakness exists, and testing and evaluating the design and operating effectiveness of internal control based on the assessed risk. Our audit also included performing such other procedures as we considered necessary in the circumstances. We believe that our audit provides a reasonable basis for our opinion.
A company’s internal control over financial reporting is a process designed 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. A company’s internal control over financial reporting includes those policies and procedures that (1) pertain to the maintenance of records that, in reasonable detail, accurately and fairly reflect the transactions and dispositions of the assets of the company; (2) provide reasonable assurance that transactions are recorded as necessary to permit preparation of financial statements in accordance with generally accepted accounting principles, and that receipts and expenditures of the company are being made only in accordance with authorizations of management and directors of the company; and (3) provide reasonable assurance regarding prevention or timely detection of unauthorized acquisition, use, or disposition of the company’s assets that could have a material effect on the financial statements.
Because of its inherent limitations, internal control over financial reporting may not prevent or detect misstatements. Also, projections of any evaluation of effectiveness to future periods are subject to the risk that controls may become inadequate because of changes in conditions, or that the degree of compliance with the policies or procedures may deteriorate.
In our opinion, The Shaw Group Inc. maintained, in all material respects, effective internal control over financial reporting as of August 31, 2012, based on criteria established in Internal Control - Integrated Framework issued by the Committee of Sponsoring Organizations of the Treadway Commission.
We also have audited, in accordance with the standards of the Public Company Accounting Oversight Board (United States), the consolidated balance sheets of The Shaw Group Inc. and subsidiaries as of August 31, 2012 and 2011, and the related consolidated statements of operations, comprehensive income (loss), shareholders’ equity, and cash flows for each of the years in the three-year period ended August 31, 2012, and our report dated October 19, 2012 expressed an unqualified opinion on those consolidated financial statements.
/s/ KPMG LLP
Baton Rouge, Louisiana
October 19, 2012
REPORT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
The Board of Directors and Shareholders
The Shaw Group Inc.:
We have audited the accompanying consolidated balance sheets of The Shaw Group Inc. and subsidiaries as of August 31, 2012 and 2011, and the related consolidated statements of operations, comprehensive income (loss), shareholders’ equity, and cash flows for each of the years in the three-year period ended August 31, 2012. These consolidated financial statements are the responsibility of the Company’s management. Our responsibility is to express an opinion on these consolidated financial statements based on our audits.
We conducted our audits in accordance with the standards of the Public Company Accounting Oversight Board (United States). Those standards require that we plan and perform the audit to obtain reasonable assurance about whether the financial statements are free of material misstatement. An audit includes examining, on a test basis, evidence supporting the amounts and disclosures in the financial statements. An audit also includes assessing the accounting principles used and significant estimates made by management, as well as evaluating the overall financial statement presentation. We believe that our audits provide a reasonable basis for our opinion.
In our opinion, the consolidated financial statements referred to above present fairly, in all material respects, the financial position of The Shaw Group Inc. and subsidiaries as of August 31, 2012 and 2011, and the results of their operations and their cash flows for each of the years in the three-year period ended August 31, 2012, in conformity with U.S. generally accepted accounting principles.
We also have audited, in accordance with the standards of the Public Company Accounting Oversight Board (United States), The Shaw Group Inc.’s internal control over financial reporting as of August 31, 2012, based on criteria established in Internal Control - Integrated Framework issued by the Committee of Sponsoring Organizations of the Treadway Commission (COSO), and our report dated October 19, 2012 expressed an unqualified opinion on the effectiveness of the Company’s internal control over financial reporting.
/s/ KPMG LLP
Baton Rouge, Louisiana
October 19, 2012
THE SHAW GROUP INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF OPERATIONS
(In thousands, except per share amounts)
See accompanying notes to consolidated financial statements.
THE SHAW GROUP INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF COMPREHENSIVE INCOME (LOSS)
(In thousands, except per share amounts)
See accompanying notes to consolidated financial statements.
THE SHAW GROUP INC. AND SUBSIDIARIES
CONSOLIDATED BALANCE SHEETS
(In thousands, except share amounts)
See accompanying notes to consolidated financial statements.
THE SHAW GROUP INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF SHAREHOLDERS’ EQUITY
(In thousands, except share amounts)
See accompanying notes to consolidated financial statements.
THE SHAW GROUP INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF CASH FLOWS
(In thousands)
See accompanying notes to consolidated financial statements.
THE SHAW GROUP INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
Note 1 - Description of Business and Summary of Significant Accounting Policies
The Shaw Group Inc. (a Louisiana corporation) and its wholly owned and majority owned subsidiaries (collectively referred to herein as Shaw, the Company, we, us or our) is a leading global provider of technology, engineering, procurement, construction, maintenance, fabrication, manufacturing, consulting, remediation and facilities management services to a diverse client base that includes multinational and national oil companies and industrial corporations, regulated utilities, and U.S. Government agencies. We have developed and acquired significant intellectual property, including induction pipe bending technology and environmental decontamination technologies. We believe our technologies provide an advantage and will help us to compete on a longer-term basis with lower cost competitors from developing countries that are likely to emerge.
We have evaluated all events and transactions occurring after the balance sheet date but before the financial statements were issued and have included the appropriate disclosures in this Annual Report on Form 10-K.
Basis of Presentation and Preparation
The accompanying consolidated financial statements include the accounts of The Shaw Group Inc., its wholly-owned and majority-owned subsidiaries, and any variable interest entities (VIEs) of which we are the primary beneficiary (See Note 8 - Equity Method Investments and Variable Interest Entities). When we do not have a controlling interest in an entity, but exert a significant influence over the entity, we apply the equity method of accounting. The cost method is used when we do not have the ability to exert significant influence. All significant intercompany balances and transactions have been eliminated in consolidation.
The preparation of these Consolidated Financial Statements in conformity with U.S. generally accepted accounting principles requires management to make estimates and assumptions that affect the amounts reported in these consolidated financial statements and accompanying notes. Areas requiring significant estimates by our management include the following:
•
contract revenues, costs and profits and the application of percentage-of-completion method of accounting;
•
provisions for uncollectible receivables and client claims and recoveries of costs from subcontractors, vendors and others;
•
recoverability of inventories and application of lower of cost or market accounting;
•
provisions for income taxes and related valuation allowances and tax uncertainties;
•
recoverability of goodwill;
•
recoverability of other intangibles and long-lived assets and related estimated lives;
•
recoverability of equity method and cost method investments;
•
valuation of defined benefit pension plans;
•
accruals for estimated liabilities, including litigation and insurance accruals;
•
consolidation of variable interest entities; and
•
valuation of stock-based compensation.
Actual results could differ materially from those estimates.
The length of our contracts varies but is typically longer than one year in duration. Consistent with industry practice, assets and liabilities have been classified as current under the operating cycle concept whereby all contract-related items are regarded as current regardless of whether cash will be received or paid within a 12-month period. Assets and liabilities classified as current that may not be paid or received in cash within the next 12 months include restricted cash, retainage receivable, cost and estimated earnings in excess of billing on uncompleted contracts (including claims receivable), retainage payable and advance billings and billings in excess of costs and estimated earnings on uncompleted contracts.
Nature of Operations and Types of Contracts
Our work is performed under two general types of contracts: cost-reimbursable plus a fee or mark-up contracts and fixed-price contracts, both of which may be modified by cost escalation provisions or other risk sharing mechanisms and incentive and penalty provisions. Each of our contracts may contain components of more than one of the contract types discussed below. During the term of a project, the contract or components of the contract may be renegotiated to include characteristics of a different contract type. We focus our EPC activities on a cost-reimbursable basis plus a fee or mark-up and negotiated fixed-price work, each as defined below. When we negotiate any type of contract, we frequently are required to accomplish the scope of work and meet certain performance criteria within a specified timeframe; otherwise, we could be assessed damages, which in some cases are agreed-upon liquidated damages.
Our cost-reimbursable contracts include the following:
•
Cost-plus and Time and Material contracts - A contract under which we are reimbursed for allowable or otherwise defined costs incurred plus a fee or mark-up. The contracts may also include incentives for various performance criteria, including quality, timeliness, ingenuity, safety and cost-effectiveness. In addition, our costs are generally subject to review by our clients and regulatory audit agencies, and such reviews could result in costs being disputed as non-reimbursable under the terms of the contract.
•
Target-price contract - A contract under which we are reimbursed for costs plus a fee consisting of two parts: (1) a fixed amount, which does not vary with performance, but may be at risk when a target price is exceeded; and (2) an award amount based on the performance and cost-effectiveness of the project. As a result, we are generally able to recover cost overruns on these contracts from actual damages for late delivery or the failure to meet certain performance criteria. Target-price contracts also generally provide for sharing of costs in excess of or savings for costs less than the target. In some contracts, we may agree to share cost overruns in excess of our fee, which could result in a loss on the project.
Our fixed-price contracts include the following:
•
Firm fixed-price contract - May include contracts in which the price is not subject to any cost or performance adjustments and contracts where certain risks are shared with clients such as labor costs or commodity pricing changes. As a result, we may benefit or be penalized for cost variations from our original estimates. However, these contract prices may be adjusted for changes in scope of work, new or changing laws and regulations and other events negotiated.
•
Maximum price contract - A contract that provides at the outset for an initial target cost, an initial target profit and a price ceiling. The price is subject to cost adjustments incurred, but the adjustment would generally not exceed the price ceiling established in the contract. In addition, these contracts usually include provisions whereby we share cost savings with our clients.
•
Unit-price contract - A contract under which we are paid a specified amount for every unit of work performed. A unit-price contract is essentially a firm fixed-price contract with the only variable being the number of units of work performed. Variations in unit-price contracts include the same type of variations as firm fixed-price contracts. We are normally awarded these contracts on the basis of a total price that is the sum of the product of the specified units and the unit prices.
Cash and Cash Equivalents
We consider all highly liquid investments with original maturities of three months or less to be cash equivalents.
Marketable Securities
We categorize our marketable securities as either trading securities or available-for-sale. These investments are recorded at fair value and are classified as short-term investments in the accompanying consolidated balance sheets. Investments are made based on the Company’s investment policy and restrictions contained in our Facility, which specifies eligible investments and credit quality requirements.
Trading securities consist of investments held in trust to satisfy obligations under our deferred compensation plans and investments in certain equity securities. The changes in fair values on trading securities are recorded as a component of net income (loss) in other income (expense), net.
Available-for-sale securities consist of mutual funds, foreign government and foreign government guaranteed securities, corporate bonds and certificates of deposit at major banks. The changes in fair values, net of applicable taxes, on available-for-sale securities are recorded as unrealized net holding gain (loss) on securities as a component of accumulated other comprehensive income (loss) in shareholders’ equity. When, in the opinion of management, a decline in the fair value of an investment below its cost or amortized cost is considered to be other-than-temporary, the investment’s cost or amortized cost is written-down to its fair value and the amount written down is recorded in the statement of operations in other income (expense), net. In addition to other relevant factors, management considers the decline in the fair value of an investment to be other-than-temporary if the market value of the investment remains below cost by a significant amount for a period of time, in which case a write-down may be necessary. The amount of any write-down is determined by the difference between cost or amortized cost of the investment and its fair value at the time the other-than-temporary decline is identified.
Accounts Receivable
Accounts receivable are recorded at the invoiced amount based on contracted prices. Amounts collected on accounts receivable are included in net cash provided by operating activities in the consolidated statements of cash flows. Our principal clients are major multinational and national oil companies and industrial corporations, regulated utilities, and U.S. Government agencies. We believe that in most cases our exposure to credit risk is mitigated through client prepayments, collateralization and guarantees.
We establish an allowance for uncollectible accounts based on the assessment of the clients’ ability to pay. In addition to any reserves established for customers’ inability to pay, there are often items in dispute or being negotiated that may require us to make an estimate as to the ultimate outcome. To the extent these items have been billed but collection is not probable, we reduce billings in excess of costs and estimated earnings on uncompleted contracts. For unbilled items, we recognize the probable estimated impact as a reduction in estimated revenue at completion with a resulting impact to billings in excess of costs and estimated earnings on uncompleted projects. Past due receivable balances are written off when our internal collection efforts have been unsuccessful in collecting the amounts due.
Retainage, included in accounts receivable, represents amounts withheld from progress billings by our clients and may not be paid to us until the completion of a project and, in some instances, for even longer periods. Retainage may also be subject to restrictive conditions such as performance or fulfillment guarantees.
Costs and Estimated Earnings in Excess of Billings on Uncompleted Contracts, Including Claims, and Advanced Billings and Billings in Excess of Costs and Estimated Earnings on Uncompleted Contracts
In accordance with normal practice in the construction industry, we include in current assets and current liabilities amounts related to construction contracts realizable and payable over a period in excess of one year. Costs and estimated earnings in excess of billings on uncompleted contracts represent the excess of contract costs and profits recognized to date using the percentage-of-completion method over billings to date on certain contracts. Billings in excess of costs and estimated earnings on uncompleted contracts represents the excess of billings to date over the amount of contract costs and profits recognized to date using the percentage-of-completion method on certain contracts.
Inventories
Inventories are stated at the lower of cost or market. Cost is determined using the first-in, first-out (FIFO) or weighted-average cost methods. Cost includes material, labor and overhead costs. Inventories are reported net of the allowance for excess or obsolete inventory.
Property and Equipment
Property and equipment are recorded at cost. Additions and improvements (including interest costs for construction of certain long-lived assets) are capitalized. We incur maintenance costs on all of our major equipment. Maintenance and repair expenses are charged to expense as incurred. The cost of property and equipment sold or otherwise disposed of and the related accumulated depreciation are eliminated from the property and related accumulated depreciation accounts and any gain (loss) is credited or charged to other income (expense), net.
The straight-line depreciation method is used for all our assets. Leasehold improvements are amortized over the shorter of the useful life of the improvement, the lease term, or the life of the building. Depreciation is generally provided over the following estimated useful service lives:
Investments
We account for non-marketable investments using the equity method of accounting if the investment gives us the ability to exercise significant influence over, but not control of, an investee. Significant influence generally exists if we have an ownership interest representing between 20% and 50% of the voting stock of the investee. Under the equity method of accounting, investments are stated at initial cost and are adjusted for subsequent additional investments and our proportionate share of earnings or losses and distributions. We record our share of the investee’s earnings or losses as income from 20% investment in Westinghouse, net of income taxes, or as earnings (losses) from unconsolidated entities, net of income taxes in the accompanying consolidated statements of operations. We record our share of the investee’s other comprehensive income (loss), net of income taxes, in the accompanying consolidated statements of shareholders’ equity and consolidated statements of comprehensive income (loss). We evaluate our equity method investments for impairment at least annually and whenever events or changes in circumstances indicate, in management’s judgment, that the carrying value of an investment may have experienced an other-than-temporary decline in value. When evidence of loss in value has occurred, management compares the estimated fair value of the investment to the carrying value of the investment to determine whether an impairment has occurred. If the estimated fair value is less than the carrying value and management considers the decline in value to be other than temporary, the excess of the carrying value over the estimated fair value is recognized in the financial statements as an impairment.
Where we are unable to exercise significant influence over the investee, or when our investment balance is reduced to zero from our proportionate share of losses, the investments are accounted for under the cost method. Under the cost method, investments are carried at cost and adjusted only for other-than-temporary declines in fair value, distributions of earnings, or additional investments.
Impairment of note receivable
During the first quarter of fiscal year 2011, in connection with a global alliance with Toshiba, Shaw committed to invest $250.0 million in support of ABWR nuclear power related projects. The first $100.0 million was made available as a secured credit facility to the entity developing ABWR nuclear power plant reactors for the South Texas Projects 3and 4. The credit facility was intended to convert to equity in the project’s sponsor upon the satisfaction of certain conditions, including the project receiving full notice to proceed. At May 31, 2011 and subsequent to the earthquakes and tsunami in Fukushima, Japan, we had advanced approximately $48.1 million under this credit facility. During the three months ended May 31, 2011, the project sponsor asked that we cease the majority of the work relating to individual orders issued under our EPC contract jointly obtained with Toshiba. Additionally, the project sponsors’ majority owner announced it was withdrawing from further financial participation in that company, and a major municipal utility announced it would indefinitely suspend all discussions regarding a potential agreement to purchase the power from the proposed facilities. Due to these changes, we reviewed the security supporting the loans outstanding (primarily partially manufactured equipment) and we wrote-off during fiscal year 2011 loans granted to the project entities totaling $48.1 million. We have not and do not plan to make additional investments in ABWR related projects.
Long-Lived Assets
Long-lived assets, such as property and equipment and purchased intangible assets subject to amortization are reviewed for impairment at least annually and whenever events or changes in circumstances indicate that the carrying amount of an asset may not be recoverable and exceeds its fair value. If circumstances require a long-lived asset be tested for possible impairment, we first compare undiscounted cash flows expected to be generated by an asset to the carrying value of the asset. If the carrying value of the long-lived asset is not recoverable on an undiscounted cash flow basis, an impairment is recognized to the extent that the carrying value exceeds its fair value. Fair value is determined through various valuation techniques including discounted cash flow models, quoted market values and third-party independent appraisals, as considered necessary.
Goodwill
Goodwill represents the excess of the aggregate purchase price over the fair value of the net assets acquired in a purchase business combination. Goodwill is not amortized but is tested for impairment at the reporting unit level (operating segment or one level below an operating segment) on an annual basis (March 1 for us) and between annual tests if an event occurs or circumstances change that would more likely than not reduce the fair value of a reporting unit below its carrying value. Examples of instances that may cause us to test our goodwill for impairment between the annual testing periods include: (i) continued deterioration of market and economic conditions that may adversely impact our ability to meet our projected results; (ii) declines in our stock price caused by continued volatility in the financial markets that may result in increases in our weighted-average cost of capital or other inputs to our goodwill assessment; and (iii) the occurrence of events that may reduce the fair value of a reporting unit below its carrying amount, such as the sale of a significant portion of one or more of our reporting units. The annual impairment test for goodwill is a two-step process involving the comparison of the estimated fair value of each reporting unit to the reporting unit’s carrying value, including goodwill. If the fair value of a reporting unit exceeds its carrying amount, the goodwill of the reporting unit is not considered impaired; therefore, the second step of the impairment test is unnecessary. If the carrying amount of a reporting unit exceeds its fair value, we perform second step of the goodwill impairment test to measure the amount of impairment loss to be recorded, as necessary.
Intangible Assets
Our intangible assets are related to various licenses, patents, technology and related processes. The costs of these assets are amortized over their estimated useful lives, which range from three to seven years. The method of amortization reflects the expected realization pattern of the economic benefits relevant to the intangible assets, or if we are unable to determine the expected realization pattern reliably, they are amortized using the straight-line method. We also have intangible assets related to client relationships and non-compete agreements which are associated with acquisitions we have completed and are amortized over a three- to ten-year period on a straight-line basis. We assess the recoverability of the unamortized balance of our intangible assets when indicators of impairment are present based on expected future profitability and undiscounted expected cash flows and their contribution to our overall operations. Should the review indicate that the carrying value is not fully recoverable; the excess of the carrying value over the fair value of the intangible assets would be recognized as an impairment loss.
Assets of Deferred Compensation Plans
We account for the assets of our Deferred Compensation Plans held in Rabbi Trusts for the benefit of the Chief Executive Officer pursuant to his employment agreement and separately, for the benefit of key employees, as trading assets. Our Rabbi Trust deposits are accounted for in accordance with ASC 710, Compensation - General. Trading assets are stated at fair value, with gains or losses resulting from changes in fair value recognized currently in earnings.
Revenue and Profit/Loss Recognition Under Long-Term Construction Accounting Including Claims, Unapproved Change Orders and Incentives
Our revenues are primarily derived from long-term contracts that are reported on the percentage-of-completion method of accounting in accordance with ASC 605-35, Construction-Type and Production-Type Contracts.
Percentage of Completion. We recognize revenues for long-term contracts on the percentage-of-completion method, primarily based on costs incurred to date compared with total estimated contract costs. Performance incentives are included in our estimates of revenues using the percentage-of-completion method when their realization is reasonably assured. Cancellation fees are included in our estimates of revenue using the percentage-of-completion method when the cancellation notice is received from the client.
Provisions for estimated losses on uncompleted contracts are made in the period in which the losses are identified. The cumulative effect of changes to estimated contract profit and loss, including those arising from contract penalty provisions such as liquidated damages, final contract settlements, warranty claims and reviews of our costs performed by clients, are recognized in the period in which the revisions are identified. To the extent that these adjustments result in a reduction or elimination of previously reported profits, we report such a change by recognizing a charge against current earnings, which might be significant depending on the size of the project or the adjustment.
Unapproved Change Orders and Claims. Revenues and gross profit on contracts can be significantly affected by change orders and claims that may not be ultimately negotiated until the later stages of a contract or subsequent to the date a contract is completed. We account for unapproved change orders depending on the circumstances. If it is not probable that the costs will be recovered through a change in contract price, the costs attributable to change orders are treated as contract costs without incremental revenue. If it is probable that the costs will be recovered through a change order, the costs are treated as contract costs and contract revenue is recognized to the extent of the costs expected to be incurred. If it is probable that the contract price will be adjusted by an amount that exceeds the costs attributable to the change order and the amount of the excess can be reliably estimated and realization is assured and supported by a legally binding written communication for the customer, the contract profit is adjusted by the amount of the excess.
When estimating the amount of total gross profit or loss on a contract, we include claims related to our clients as adjustments to revenues and claims related to vendors, subcontractors and others as adjustments to cost of revenues. Including claims in this calculation ultimately increases the gross profit (or reduces the loss) that would otherwise be recorded without consideration of the claims. Our claims against others are recorded up to costs incurred and include no profit until such time as they are finalized and approved. The claims included in determining contract gross profit are less than the actual claim that will be or has been presented. Claims are included in costs and estimated earnings in excess of billings on our consolidated balance sheets. The costs attributable to change orders and claims being negotiated or disputed with clients, vendors, or subcontractors or subject to litigation are included in our estimates of revenues when it is probable they will result in additional contract revenues and the amount can be reasonably estimated. Profit from such unapproved change orders and claims is recorded in the period such amounts are settled or approved. Back charges and claims against and from our vendors, subcontractors, and others are included in our cost estimates as a reduction or increase in total estimated costs when recovery or payment of the amounts are probable and the costs can be reasonably estimated.
Revenue Recognition - Contract Segmenting
Certain of our long-term contracts include services performed by more than one operating segment, particularly EPC contracts which include pipe and module fabrication and steel erection services performed by our F&M segment. We allocate revenues, costs and gross profit to our significant F&M subcontracts based upon the segmenting criteria in ASC 605-35. Revenues recorded in our F&M segment under this policy are based on our prices and terms for such similar services to third party clients. This policy may result in different interim rates of profitability for each segment of the affected EPC contract than if we had recognized revenues on a percentage-of-completion for the entire project based on the combined estimated total costs of all EPC and pipe fabrication and steel erection services.
Other Revenue Recognition and Profit and Loss Estimates
For unit-priced pipe fabrication contracts, a unit (spool) consists of piping materials and associated shop labor to form a prefabricated unit according to contract specifications. Spools are generally shipped to job site locations when complete. We recognize revenues upon shipment of the fabricated spools for unit-price fabrication contracts. For fixed-price fabrication contracts, we recognize revenues on the units of delivery basis of applying the percentage-of-completion method, measured primarily by the cost of materials shipped to total estimated costs. During the fabrication process, all direct and indirect costs related to the fabrication process are capitalized as work in progress inventory. We recognize revenues for pipe fittings, manufacturing operations and other services at the time of shipment or as services are performed.
Revenue is recognized from consulting services as the work is performed. Consulting service work is primarily performed on a cost-reimbursable basis. Revenues related to royalty use of our performance enhancements derived from our chemical technologies are recorded in the period earned based on the performance criteria defined in the related contracts. For running royalty agreements, we recognize revenues based on client production volumes at the contract specified unit rates. Sales of paid-up license agreements are coupled with the sale of engineering services for the integration of the technology into the clients’ processes. For paid-up license agreements, revenue is recognized using the percentage-of-completion method, measured primarily by the percentage of costs incurred to date on engineering services to total estimated engineering costs. Under such agreements, revenues available for recognition on a percentage-of-completion basis are limited to the agreement value less a liability provision for contractually specified process performance guarantees. The liability provision is recorded in gross profit when, and if, the related performance testing is successfully completed or an assessment indicates a reduction of the liability provision is appropriate.
For contracts containing multiple deliverables, we analyze each activity within the contract to ensure that we adhere to the separation and revenue recognition guidelines of ASC 605, Revenue Recognition. For service-only contracts, and service elements of multiple deliverable arrangements, award fees are recognized only when definitized and awarded by the client. Award fees on construction contracts are recognized during the term of the contract based on our estimate of the amount of fees to be awarded.
Accounting for Governmental Contracts
Most of the services provided to the U.S. government are governed by cost-reimbursable contracts. Generally, these contracts contain both a base fee (a fixed amount applied to our actual costs to complete the work) and an award fee (an amount applied to definitized costs, which is subject to our client’s discretion and tied to the specific performance measures defined in the contract, such as adherence to schedule, health and safety, quality of work, responsiveness, cost performance and business management). Award fees on construction contracts are recognized during the term of the contract based on our estimate of the amount of fees to be awarded.
Revenue is recorded at the time services are performed, and such revenues include base fees, actual direct project costs incurred, and an allocation of indirect costs. Indirect costs are applied using rates approved by our government clients. The general, administrative and overhead cost reimbursement rates are estimated periodically in accordance with government contract accounting regulations and may change based on actual costs incurred or based upon the volume of work performed. Revenue is reduced for our estimate of costs that either are in dispute with our client or have been identified as potentially unallowable per the terms of the contract or the federal acquisition regulations.
Cost Estimates
Contract costs include all direct material and labor costs and those indirect costs related to contract performance. Indirect costs, included in cost of revenues, include charges for such items as facilities, engineering, project management, quality control, bid and proposals and procurement. Pre-contract costs are generally expensed when incurred. Pre-contract costs incurred in anticipation of a specific contract award are deferred when the costs can be directly associated with a specific anticipated contract and their recoverability from that contract is probable.
Selling, General and Administrative Expenses
Our S,G&A expenses represent overhead expenses that are not associated with the execution of the contracts. S,G&A expenses include charges for such items as executive management, business development, proposal expenses, information technology, finance and corporate accounting, human resources and various other corporate functions.
Derivative Instruments and Hedging Activities
We account for derivative instruments and hedging activities in accordance with ASC 815, Derivatives and Hedging, which requires entities to recognize all derivative instruments as either assets or liabilities on the balance sheet at their respective fair values. If the derivative instrument is designated as a hedge, depending on the nature of the hedge, changes in the fair value of the derivative instrument are either offset against the change in fair value of the hedged assets, liabilities, or firm commitments through earnings or recognized in other comprehensive income until the hedged item is recognized in earnings. Recognized gains or losses on derivative instruments entered into to manage foreign exchange risk are included in foreign currency transaction gains (losses) on Japanese Yen-denominated bonds, net or in other foreign currency transaction gains (losses), net, in the consolidated statements of operations.
We do not enter into derivative instruments for speculative or trading purposes. We utilize forward foreign exchange contracts to reduce our risk from foreign currency price fluctuations related to firm or anticipated sales transactions, commitments to purchase or sell equipment, materials and/or services and interest payments denominated in a foreign currency. The net gain (loss) recognized in earnings from our hedges was approximately $(2.0) million, $4.7 million and $2.8 million at August 31, 2012, 2011 and 2010, respectively.
Other Comprehensive Income (Loss)
ASC 220, Comprehensive Income, establishes standards for reporting and displaying comprehensive income and its components in the consolidated financial statements. We report, net of tax, foreign currency translation adjustments, unrealized gains and losses on derivative instruments accounted for as cash flow hedges, changes in our net pension liabilities, our equity in Westinghouse’s pre-tax other comprehensive income (loss) and unrealized gains and losses on securities as components of other comprehensive income (loss).
Foreign Currency Translation
Our significant foreign subsidiaries maintain their accounting records in their local currency (primarily British pounds and Mexican pesos). All of the assets and liabilities of these subsidiaries (including long-term assets, such as goodwill) are converted to U.S. dollars at the exchange rate in effect at the balance sheet date, income and expense accounts are translated at average rates for the period, and shareholders’ equity accounts are translated at historical rates. The net effect of foreign currency translation adjustments is included in shareholders’ equity as a component of accumulated other comprehensive income (loss) in the accompanying consolidated balance sheets.
Foreign Currency Transactions
Foreign currency transaction gains or losses are credited or charged to income as incurred. Transaction gains reflected in income were approximately $0.3 million, $7.7 million and $3.3 million for the fiscal years 2012, 2011 and 2010, respectively. Additionally, during fiscal years 2012, 2011 and 2010, we incurred foreign currency transaction gains (losses) on the Westinghouse Bonds associated with our Investment in Westinghouse of approximately $40.8 million, $(159.0) million and $(131.6) million, respectively, resulting from revaluing the JPY-denominated Westinghouse Bonds to the USD equivalent at the end of the period.
Insurance Programs
Our employee-related health care benefits program is self-funded up to a maximum amount per claim. Claims in excess of this maximum are insured through stop-loss insurance policies. Our workers’ compensation, automobile and general liability insurance is provided through a premium plan with a deductible applied to each occurrence. Claims in excess of our deductible are paid by the insurer. The liabilities are based on claims filed and estimates of claims incurred but not reported. As of August 31, 2012 and August 31, 2011, liabilities for unpaid and incurred but not reported claims for all insurance programs totaling approximately $54.3 million and $57.5 million, respectively, are included in other accrued liabilities in the accompanying consolidated balance sheets.
Deferred Financing Costs
We defer qualifying debt issuance costs, which are amortized over the term of the related debt. Unamortized deferred financing costs are included in non-current other assets on the consolidated balance sheets and related amortization expense is included in interest expense in the accompanying consolidated statements of operations. See Note 10 - Debt and Revolving Lines of Credit for additional information.
Share-Based Compensation
We account for share-based payments, including grants of employee stock options, restricted stock-based awards and performance cash units, in accordance with ASC 718, Compensation-Stock Compensation, which requires that all share-based payments (to the extent they are compensatory) be recognized as an expense in our consolidated statements of operations based on their fair values and the estimated number of shares we ultimately expect to vest. We recognize share-based compensation expense on a straight-line basis over the service period of the award, which is generally four years for awards granted in fiscal year 2011 and prior and three years for awards granted in fiscal year 2012.
Share-based compensation cost for both equity and liability-classified awards included in net income (loss) amounted to approximately $42.8 million, $34.1 million and $34.9 million for the years ended August 31, 2012, 2011 and 2010, respectively. ASC 718 requires that excess tax benefits related to equity-classified stock options and restricted stock-based awards be reflected as financing cash inflows. The total income tax benefit recognized in the consolidated statements of operations for share-based compensation arrangements was approximately $10.7 million, $12.0 million and $10.5 million for the years ended August 31, 2012, 2011 and 2010, respectively.
Income Taxes
Income taxes are accounted for under the asset and liability method. Deferred tax assets and liabilities are recognized for the future tax consequences attributable to differences between the financial statement carrying amounts of existing assets and liabilities and their respective tax bases and operating loss and tax credit carryforwards. Deferred tax assets and liabilities are measured using enacted tax rates expected to apply to taxable income in the years in which those temporary differences are expected to be recovered or settled. The effect on deferred tax assets and liabilities of a change in tax rates is recognized in income in the period that includes the enactment date. We include any estimated interest and penalties on tax related matters in income taxes payable, included in other accrued liabilities on the consolidated balance sheets. We recognize the effect of income tax positions only if those positions are more likely than not to be sustained. Recognized income tax positions are measured at the largest amount that is greater than 50% likely to be realized. Changes in recognition or measurement are recorded in the period in which the change in judgment occurs. We record interest and penalties related to unrecognized tax benefits in provision (benefit) for income taxes.
Contingencies and Commitments
Liabilities for loss contingencies, including environmental remediation costs not within the scope of ASC 410, Asset Retirement and Environmental Obligations, arising from claims, assessments, litigation, fines and penalties and other sources are recorded when it is probable that a liability has been incurred and the amount of the assessment and/or remediation can be reasonably estimated. Legal costs incurred in connection with loss contingencies are expensed as incurred.
LandBank Assets
LandBank, a subsidiary of our E&I segment, remediates previously acquired environmentally impaired real estate. The real estate was recorded at cost, typically reflecting some degree of discount due to environmental issues related to the real estate. We had approximately $50.7 million of such real estate assets recorded in other assets on the accompanying balance sheets at August 31, 2012, as compared to approximately $51.7 million at August 31, 2011. We also record an environmental liability for properties held by LandBank if funds are received from transactions separate from the original purchase to pay for environmental remediation costs. We recognize gains and losses on sales of these assets when the sales transaction is complete.
Fair Value of Financial Instruments
The carrying amounts of cash and cash equivalents, accounts receivable and accounts payable approximate their fair values because of their short-term nature. The fair value of long-term notes receivable approximates the carrying value based on estimated discounted future cash flows using the current rates at which similar loans would be made. The fair value of fixed rate bonds approximates the carrying value based on estimated current rates available to us for bonds of the same maturities. The fair value of our floating rate bonds approximates the carrying value. Our foreign currency forward contracts and interest rate swap liability are recorded at their fair values. See Note 4 - Fair Value Measurements for additional information.
Acquisitions
In January 2011, we completed an acquisition for a net purchase price of $23 million that was not material individually to our overall consolidated financial statements and our results of operations. This acquisition was a step-acquisition in which we acquired the other 50% of an equity method investee, which increased our ownership to 100%. We determined the acquisition date fair value of our existing 50% equity interest under the income approach and recorded a gain of $2.4 million in the year ended August 31, 2011, as a result of remeasuring our existing 50% equity interest to fair value.
On March 7, 2011, we acquired 100% of the outstanding common stock of Coastal Planning & Engineering, Inc. (CPE). CPE, based in Boca Raton, Fla., offers a full range of services including coastal modeling, oceanographic measurements, marine biology, geotechnical surveys, hydrographic surveys and marine geology. CPE’s 27-year history of coastal projects includes beach nourishment and island restoration following hurricanes and other erosion, offshore sand inventory and ship maneuvering studies for new and existing ports. The value of this stock purchase transaction includes a cash payment of $15.7 million, contingent consideration of $9.7 million and other purchase price adjustments, for a total purchase price of $25.7 million. As a result of the acquisition, we recognized goodwill of $17.9 million and other intangible assets of $3.9 million in fiscal year 2011. As of August 31, 2012, $3.6 million of the contingent consideration has been paid. CPE’s results of operations are included in our E&I segment. Acquisition-related costs are expensed as incurred and are included in our selling, general and administrative expenses on our consolidated statements of operations.
Divestitures
On August 31, 2012, we completed our previously announced divestiture of substantially all of the business of the E&C segment to Technip S.A. (the “E&C Sale”) for approximately $290.0 million in cash, which resulted in a net gain of approximately $95.1 million related to this transaction.
Also on August 31, 2012, the E&C segment’s Toronto-based operations that were not included in the E&C Sale filed for bankruptcy. The directors of these subsidiaries determined that the companies had insufficient income and assets to continue as ongoing operations. A trustee in bankruptcy has been appointed, and the first meeting of creditors was held on September 24, 2012. We recorded a loss for the fiscal year of $11.8 related to the deconsolidation of these Toronto-based operations, which is included in the gain on disposal of E&C assets line on our consolidated statement of operations. The deconsolidation had no significant impact on the consolidated balance sheet or statement of cash flows.
Remaining in the E&C segment as of August 31, 2012, are our obligations under an engineering, procurement and construction contract associated with a large ethylene plant in southeast Asia that is nearing completion. We also retained certain consulting services provided to the energy and petrochemical market, which were incorporated into our E&I segment.
Transaction Agreement
On July 30, 2012, we announced that we signed a Transaction Agreement with Chicago Bridge & Iron Company N.V. (CB&I) under which CB&I will acquire us in a cash and stock transaction valued at approximately $3.2 billion based on the trading price of CB&I common stock as of October 15, 2012 (Transaction Agreement). Under the terms of the Transaction Agreement, CB&I will acquire Shaw for $41.00 in cash and 0.12883 shares of CB&I common stock for each common share of Shaw stock owned.
We currently expect to complete the Transaction during the first quarter of calendar 2013. The Transaction is subject to certain regulatory approvals, the approval of CB&I’s shareholders and the approval of our shareholders through the affirmative vote of (i) the holders of at least 75% of the outstanding shares of common stock entitled to vote on the matter (Supermajority Threshold), which excludes shares owned by any person that, together with its affiliates, beneficially owns in the aggregate 5% or more of the outstanding shares of our common stock as of the record date, other than any trustee of the Shaw 401(k) Plan (Related Person), as well as (ii) at least a majority of the voting power present, each in accordance with our Articles of Incorporation.
The Transaction is also subject to a number of additional conditions, including, but not limited to, the consummation of the sale to Technip S.A. of substantially all of the E&C business, which was completed on August 31, 2012; the valid exercise of the Westinghouse Put Options, which were exercised on October 6, 2012; our possession of at least $800 million of unrestricted cash (as “Unrestricted Cash” is defined in the Transaction Agreement), as of the closing date; EBITDA (as “Company EBITDA” is defined in the Transaction Agreement) for the period of four consecutive fiscal quarters ending prior to the closing date of the Transaction of not less than $200 million; and net indebtedness for borrowed money (as “Net Indebtedness for Borrowed Money” is defined in the Transaction Agreement) not exceeding $100 million as of the closing date of the Transaction. The Transaction Agreement also restricts, among other items, our ability to increase borrowings, repurchase shares, and pay dividends.
Following our announcement of the signed Transaction Agreement, several shareholders filed purported class action suits against Shaw, its directors, CB&I, and in some cases, against CB&I’s acquisition subsidiary. The plaintiffs generally allege breach of fiduciary duties of care and loyalty to Shaw shareholders because of, among other claims, inadequate consideration to be paid by CB&I for Shaw common stock. We believe these lawsuits are without merit and intend to contest them vigorously.
Recently Adopted Accounting Pronouncements
In January 2010, the FASB issued an Accounting Standards Update (ASU) related to new disclosures about fair value measurements, ASU 2010-06, Fair Value Measurements and Disclosures (Topic 820). Part of this standard was effective for us in the first quarter of our 2011 fiscal year and did not have a material impact on our consolidated financial statements. We adopted the additional requirement to reconcile recurring Level 3 measurements, including purchases, sales, issuances and settlements on a gross basis effective September 1, 2011. The adoption of the final part of ASU 2010-06 did not have a material impact on our consolidated financial statements.
In April 2010, the FASB issued ASU 2010-13, Compensation - Stock Compensation (Topic 718) - Effect of Denominating the Exercise Price of a Share-Based Payment Award in the Currency of the Market in Which the Underlying Equity Security Trades. ASU 2010-13 amends FASB Accounting Standards Codification ™ (ASC) 718 to clarify that an employee share-based payment award with an exercise price denominated in the currency of a market in which a substantial portion of the entity’s equity securities trades should not be considered to contain a condition that is not a market, performance or service condition. Therefore, an entity would not classify such an award as a liability if it otherwise qualifies as equity. We adopted ASU 2010-13 effective September 1, 2011. The adoption of ASU 2010-13 did not have a material impact on our consolidated financial statements.
In December 2010, the FASB issued ASU 2010-28, Intangibles - Goodwill and Other (Topic 350), related to the way companies test for impairment of goodwill. Pursuant to ASU 2010-28, goodwill of the reporting unit is not impaired if the carrying amount of a reporting unit is greater than zero and its fair value exceeds its carrying amount. In that event, the second step of the impairment test is not required. However, if the carrying amount of a reporting unit is zero or negative, the second step of the impairment test is required to be performed to measure the amount of impairment loss, if any, when it is more likely than not that goodwill impairment exists. In considering whether it is more likely than not that goodwill impairment exists, a company must evaluate whether there are qualitative factors that could adversely affect goodwill. Consistent with the prior requirements, this test must be performed annually or, if an event occurs or circumstances exist that indicate that it is more likely than not that goodwill impairment exists, in the interim. We adopted ASU 2010-28 effective September 1, 2011. The adoption of ASU 2010-28 did not have a material impact on our consolidated financial statements.
In December 2010, the FASB issued ASU 2010-29, Business Combinations (Topic 805) - Disclosure of Supplementary Pro Forma Information for Business Combinations. ASU 2010-29 specifies that if a public entity presents comparative financial statements, the entity should disclose revenue and earnings of the combined entity as though the business combination(s) that occurred during the current year had occurred as of the beginning of the comparable prior annual reporting period only. The amendments also require a description of the nature and amount of material, nonrecurring pro forma adjustments directly attributable to the business combination included in the reported pro forma revenue and earnings. ASU 2010-29 is effective prospectively for business combinations for which the acquisition date is during fiscal year 2012. The adoption of ASU 2010-29, effective September 1, 2011, did not have a material impact on our consolidated financial statements.
In May 2011, the FASB issued ASU 2011-04, Fair Value Measurement (Topic 820) - Amendments to Achieve Common Fair Value Measurement and Disclosure Requirements in U.S. GAAP and IFRS. ASU 2011-04 primarily changes the wording used to describe the requirements for measuring fair value and for disclosing information about fair value measurement and clarifies the FASB’s intent about the application of existing fair value measurement requirements. We adopted ASU 2011-04 effective March 1, 2012. The adoption of ASU 2011-04 did not have a material impact on our consolidated financial statements.
In September 2011, the FASB issued ASU 2011-09 Compensation - Retirement Benefits - Multiemployer Plans (Subtopic 715-80) - Disclosures about an Employer’s Participation in a Multiemployer Plan. ASU 2011-09 requires that employers provide additional separate disclosures for multiemployer pension plans and multiemployer other postretirement benefit plans. ASU 2011-09 is effective for us in fiscal year 2012 and must be applied retrospectively for all prior periods presented. See Note 18, Employee Benefit Plans, for the multiemployer plan disclosure resulting from adoption of ASU 2011-09.
Recent Accounting Pronouncements
In June 2011, the FASB issued ASU 2011-05, Comprehensive Income (Topic 220) - Presentation of Comprehensive Income. ASU 2011-05 provides an entity the option to present the total of comprehensive income, the components of net income and the components of other comprehensive income either in a single continuous statement of comprehensive income or in two separate but consecutive statements. ASU 2011-05 is effective for us in fiscal year 2013. We do not expect the adoption of ASU 2011-05 to have a material impact on our consolidated financial statements.
In September 2011, the FASB issued ASU 2011-08 - Intangibles - Goodwill and Other (Topic 350) - Testing Goodwill for Impairment. ASU 2011-08 provides an entity the option to first assess qualitative factors to determine whether the existence of events or circumstances leads to a determination that it is more likely than not that the fair value of a reporting unit is less than its carrying amount. If, after assessing the totality of events or circumstances, an entity determines it is not more likely than not that the fair value of a reporting unit is less than its carrying amount, then performing the two-step impairment test is not required. ASU 2011-08 is effective for us in fiscal year 2013. Early adoption is permitted; however, we have not yet adopted it. We do not expect the adoption of ASU 2011-08 to have a material impact on our consolidated financial statements.
Note 2 - Cash, Cash Equivalents and Short-term Investments
All short-term investments consist of highly liquid investments which can be promptly converted to cash or cash equivalents, without restriction. Our major types of investments are as follows:
Money market mutual funds - We invest in money market funds that seek to maintain a stable net asset value of $1 per share, while limiting overall exposure to credit, market and liquidity risks.
Certificates of deposit - Certificates of deposit are short-term interest-bearing debt instruments issued by various financial institutions with which we have an established banking relationship.
Bond mutual funds - We invest in publicly traded and valued bond funds.
Corporate bonds - We evaluate our corporate debt securities based on a variety of factors including, but not limited to, the credit rating of the issuer. Our corporate debt securities are publicly traded debt rated at least A/A2 or better by S&P and/or Moody's, respectively, with maturities up to two years at the time of purchase. Losses in this category are primarily due to market liquidity.
At August 31, 2012, the components of our cash, cash equivalents and short-term investments were as follows (in thousands):
At August 31, 2011, the components of our cash, cash equivalents and short-term investments were as follows (in thousands):
Gross realized gains and losses from sales of available-for-sale securities are determined using the specific identification method and are included in other income (expense), net. During the fiscal year ending August 31, 2012, the proceeds and realized gains and losses were as follows (in thousands):
There were no transfers of securities between available for sale and trading classifications during the fiscal year ending August 31, 2012.
We evaluate whether unrealized losses on investments in securities are other-than-temporary, and if we believe the unrealized losses are other-than-temporary, we record an impairment charge. There were no material other-than-temporary impairment losses recognized during the fiscal ending August 31, 2012.
At August 31, 2012, there were no gross unrealized losses on investment securities in a continuous loss position for which we have not recognized an impairment charge.
At August 31, 2012, maturities of debt securities classified as available-for-sale were as follows (in thousands):
Note 3 - Restricted and Escrowed Cash and Cash Equivalents and Restricted Short-term Investments
At August 31, 2012, the components of our restricted and escrowed cash and cash equivalents and restricted short-term investments were as follows (in thousands):
At August 31, 2011, the components of our restricted and escrowed cash and cash equivalents and restricted short-term investments were as follows (in thousands):
Our restricted and escrowed cash and cash equivalents and restricted short-term investments were restricted for the following (in thousands):
We may voluntarily cash collateralize certain letters of credit if the bank fees avoided on those letters of credit exceed the return on other investment opportunities, as we have done so in prior years. However, we have no such collateralization as of August 31, 2012. We have the ability to promptly convert, without restriction, any amounts we may choose to utilize to voluntarily secure letters of credit or to secure contingent obligations in lieu of letters of credit, to unrestricted cash by utilizing a portion of our $1,450.0 million Facility available for the issuance of letters of credit. See Note 10 - Debt and Revolving Lines of Credit for additional information about our Facility.
Note 4 - Fair Value Measurements
We follow the authoritative guidance set forth in ASC 820, Fair Value Measurements and Disclosures, for fair value measurements relating to financial and nonfinancial assets and liabilities, including presentation of required disclosures in our consolidated financial statements. This guidance defines fair value as the price that would be received to sell an asset or paid to transfer a liability (an exit price) in an orderly transaction between market participants at the measurement date. The guidance also establishes a fair value hierarchy, which requires maximizing the use of observable inputs when measuring fair value.
The three levels of inputs that may be used are:
Level 1: Quoted market prices in active markets for identical assets or liabilities.
Level 2: Observable market based inputs or unobservable inputs that are corroborated by market data.
Level 3: Significant unobservable inputs that are not corroborated by market data.
Assets and Liabilities Measured at Fair Value on a Recurring Basis
At August 31, 2012, our financial assets and liabilities measured at fair value on a recurring basis were as follows (in thousands):
(a)
This class includes investments in a mutual fund that invests at least 80% of its assets in short-term bonds issued or guaranteed by U.S. government agencies and instrumentalities.
At August 31, 2011, our financial assets and liabilities measured at fair value on a recurring basis were as follows (in thousands):
(a)
This class includes investments in a mutual fund that invests at least 80% of its assets in short-term bonds issued or guaranteed by U.S. government agencies and instrumentalities.
The following are the primary valuation methodologies used for valuing our short-term and restricted short-term investments:
·
Corporate bonds and U.S. government and agency securities: Valued at quoted prices in markets that are not active, broker dealer quotations or other methods by which all significant inputs are observable, either directly or indirectly.
·
Stock and bond mutual funds: Valued at the net asset value of shares held at period end as quoted in the active market. These mutual funds contain no unusual terms or trade restrictions.
·
Equity investments: Valued at the closing price of the shares held at period end as quoted in active markets.
We value the interest rate swap liability utilizing a discounted cash flow model that takes into consideration forward interest rates observable in the market and the counterparty’s credit risk. Our counterparty to this instrument is a major U.S. bank. As discussed in Note 10 -Debt and Revolving Lines of Credit, we designated the swap as a hedge against changes in cash flows attributable to changes in the benchmark interest rate related to our Westinghouse Bonds.
We manage our transaction exchange exposures with foreign currency derivative instruments denominated in our major currencies, which are generally the currencies of the countries in which we conduct the majority of our international business. We utilize derivative instruments such as forward contracts to manage forecasted cash flows denominated in foreign currencies generally related to engineering and construction projects. Our counterparties to these instruments are major U.S. banks. These currency derivative instruments are carried on the consolidated balance sheet at fair value and are based upon market observable forward exchange rates and forward interest rates.
We value derivative assets by discounting future cash flows based on currency forward rates. The discount rate used for valuing derivative assets incorporates counterparty credit risk, as well as our cost of capital. Derivative liabilities are valued using a discount rate that incorporates our credit risk.
See Note 2 - Cash, Cash Equivalents and Short-term Investments and Note 3 - Restricted and Escrowed Cash and Cash Equivalents and Restricted Short-term Investments for additional information regarding our major categories of investments.
See Note 9 - Goodwill and Other Intangibles for information regarding assets measured at fair value on a non-recurring basis.
Effects of Derivative Instruments on Income and Other Comprehensive Income
Gains and losses related to derivative instruments have been recognized as follows (in millions):
Note 5 -Accounts Receivable, Concentrations of Credit Risk, and Inventories
Accounts Receivable
Our accounts receivable, including retainage, net, were as follows (in thousands):
Analysis of the change in the allowance for doubtful accounts follows (in thousands):
Included in our trade accounts receivable, net at August 31, 2012, and 2011, were approximately $9.0 million of outstanding invoices due from a local government entity resulting from revenues earned in providing disaster relief, emergency response and recovery services. The local government entity challenged the appropriateness of our invoiced amounts, but recently we reached an agreement with the entity that, if the terms are met, will resolve the collection of outstanding invoices and the litigation. Pursuant to this agreement, the local government entity has submitted a request for federal funding necessary to satisfy the net outstanding accounts receivable amount. While the terms of the agreement are in place, we remain in litigation with the government entity. The amounts we ultimately collect could differ materially from amounts currently recorded.
At August 31, 2011, we had approximately $227.1 million included in trade receivables, net, for an air quality control (AQC) project, primarily related to periodic costs and milestone reconciliation invoices. During the three months ended November 30, 2011, we received a payment of $68.0 million from the client related to the outstanding trade receivables. On June 5, 2012, we reached a settlement with the client of all claims and counterclaims on the AQC project. As a result of the settlement, we recorded a $20.1 million charge to earnings in the three months ended May 31, 2012. On June 11, 2012, we collected approximately $107 million in cash, representing all of the remaining net accounts receivable associated with the project. See Note 15 - Contingencies and Commitments for additional information.
Concentrations of Credit
Amounts due from U.S. government agencies or entities were $51.0 million and $64.3 million at August 31, 2012, and August 31, 2011, respectively. Costs and estimated earnings in excess of billings on uncompleted contracts include $242.8 million and $278.6 million at August 31, 2012, and August 31, 2011, respectively, related to the U.S. government agencies and related entities.
Inventories
Inventories are stated at the lower of cost or market. Cost is determined using the FIFO or weighted-average cost methods. Cost includes material, labor and overhead costs. Inventories are reported net of the allowance for excess or obsolete inventory. Major components of inventories were as follows (in thousands):
Note 6 - Property and Equipment:
Property and equipment consisted of the following (in thousands):
Assets acquired under capital leases, net of accumulated depreciation, were $1.1 million and $1.3 million at August 31, 2012, and 2011, respectively. If the assets acquired under capital leases transfer title at the end of the lease term or contain a bargain purchase option, the assets are amortized over their estimated useful lives; otherwise, the assets are amortized over the respective lease term. Depreciation and amortization expense of $74.4 million, $73.9 million and $62.8 million for the fiscal years ended August 31, 2012, 2011, and 2010, respectively, is included in cost of revenues and selling, general and administrative expenses in the accompanying consolidated statements of operations.
At August 31, 2012 and 2011, construction in progress consisted primarily of deposits on heavy equipment to be used on some of our power projects.
Note 7 -Investment in Westinghouse and Related Agreements
Investment in Westinghouse
On October 16, 2006, two newly-formed companies, Toshiba Nuclear Energy Holdings (US), Inc. and its subsidiaries and Toshiba Nuclear Energy Holdings (UK), Ltd. and its subsidiaries (the Acquisition Companies) acquired BNFL USA Group Inc. (also referred to as Westinghouse Electric Company LLC) and Westinghouse Electric UK Limited and their subsidiaries (collectively Westinghouse or WEC) from British Nuclear Fuels plc (BNFL). Westinghouse was owned and capitalized to a total of $5.4 billion, 77% provided by Toshiba, 20% by our wholly owned special purpose subsidiary Nuclear Energy Holdings LLC (NEH) and 3% by Ishikawajima-Harima Heavy Industries Co., Ltd (IHI). In October 2007, Toshiba reduced its ownership to 67% by selling 10% of Westinghouse to National Atomic Company Kazatomprom, a major supplier of uranium based in the Republic of Kazakhstan. Our total cost of the equity investment (Westinghouse Equity) and the related agreements, including related acquisition costs, was approximately $1.1 billion. We obtained financing for our equity investment through the Japanese private placement market by issuing, at a discount, 128.98 billion JPY (equivalent to approximately $1.08 billion at the time of issuance) face amount of limited recourse bonds (the Westinghouse Bonds).
Put Option Agreements
In connection and concurrent with the acquisition of our Investment in Westinghouse, we entered into JPY-denominated Put Option Agreements (Put Options) that provide us an option to sell all or part of our 20% equity interest in Westinghouse to Toshiba for approximately 97% of the original JPY-equivalent purchase price, approximately 124.7 billion JPY. Under its terms, the Put Options are exercisable through February 28, 2013, but covenants under the Westinghouse Bonds require us to exercise the Put Option on the date that is 160 days prior to March 15, 2013, (October 6, 2012) if, by such date, the Westinghouse Bonds have not been repaid. The Put Options provided financial support to NEH to issue the Westinghouse Bonds on a non-recourse basis to us (except NEH) as the Westinghouse Bonds are collateralized exclusively by the security addressed below in the section “Westinghouse Bonds.” If, due to legal reasons or other regulatory constraints, Toshiba cannot take possession of the shares upon our exercise of the Put Options, Toshiba is required to provide security for the Westinghouse Bonds for a period of time and may delay the transfer of ownership and settlement of the Westinghouse Bonds by NEH. The Put Options may only be exercised once, and any proceeds received from the Put Options must be used to repay the Westinghouse Bonds.
Since the Put Options exercise price is JPY-denominated, we will receive a fixed amount of JPY (approximately 124.7 billion JPY) upon the exercise of the Put Options. The Put Options, along with the Principal LC (defined below), substantially mitigate the risk to the holders of the Westinghouse Bonds that the JPY to U.S. dollar exchange rate changes could result in a shortfall of proceeds upon exercise of the Put Options for repayment of the Westinghouse Bonds.
Under U.S. GAAP, the Put Options are not considered free-standing financial instruments or derivative instruments, and, therefore, have not been separated from our equity investment in Westinghouse. The Put Options are JPY-denominated and do not require or permit net settlement. Therefore, neither the Put Options nor the foreign currency component meet the definition of a derivative instrument under ASC 815 and, therefore, are not separated from the host contract (the hybrid equity investment in Westinghouse with a JPY-denominated put option).
On October 6, 2012, NEH exercised its Put Options to sell the Westinghouse Equity to Toshiba. Under the terms of the put option agreements, the Put Options will be cash settled 90 days thereafter, in January 2013, with the proceeds deposited in trust to fund retirement of the Westinghouse Bonds on March 15, 2013.
Commercial Relationship Agreement
In connection and concurrent with the acquisition of our investment in Westinghouse, we executed a commercial relationship agreement (Westinghouse CRA) that provided us with certain exclusive opportunities to bid on projects where we would perform engineering, procurement and construction services on future Westinghouse advanced passive AP 1000 nuclear power plants, along with other commercial opportunities, such as the supply of piping for those units. We concluded that, for accounting purposes, no value should be allocated to the Westinghouse CRA and that it should not be recognized as a separate asset. The Westinghouse CRA terminated upon exercise of the Put Options on October 6, 2012.
Shareholder Agreement and Dividend Policy
On October 4, 2006, NEH entered into shareholder agreements with respect to the Acquisition Companies setting forth certain agreements regarding the capitalization, management, control and other matters relating to the Acquisition Companies. Under the shareholder agreements, the Acquisition Companies will distribute agreed percentages, no less than 65%, but not to exceed 100%, of the net income of Westinghouse to its shareholders as dividends. The shares owned by NEH will be entitled to limited preferences with respect to dividends to the extent that targeted minimum dividends are not distributed. The intent of this policy is that for each year of the first six years we hold our 20% equity investment in Westinghouse we expect to receive a minimum of approximately $24.0 million in dividends. To the extent the targeted dividend amount during this period is not paid or an amount less than the target is paid, we retain the right to receive any annual shortfall to the extent Westinghouse earns net income equal to or exceeding the targeted income in the future. Our right to receive any shortfalls between the targeted dividends to which we are entitled and those actually paid by Westinghouse during the first six years of our investment (or such shorter period in the event of earlier termination) survives the exercise or expiration of the Put Options or the sale of our Westinghouse Investment, although this right is dependent on Westinghouse earning net income equal to or exceeding the target income at some future time. NEH has received dividends totaling approximately $119.4 million to date. Dividends received are accounted for as a reduction of NEH’s Investment in Westinghouse carrying value. Shortfalls in target minimum Westinghouse dividends are not recorded in our financial statements until declared by Westinghouse. We will be entitled to receive dividends associated with our Westinghouse investment until the settlement of the Put Option, January 4, 2013. However, any dividend shortfall will continue to be payable to us. At August 31, 2012, the dividend shortfall totaled approximately $12.6 million.
Westinghouse Bonds
The proceeds from the issuance of the Westinghouse Bonds was approximately $1.0 billion, net of original issue discount. The Westinghouse Bonds are non-recourse to us and our subsidiaries, except NEH, and are secured by the assets of and 100% of our ownership in NEH, its Westinghouse Equity, the Put Options, a letter of credit for approximately $54.7 million at August 31, 2012, established by us for the benefit of NEH related to the principal on the Westinghouse Bonds (the Principal LC) and the additional letters of credit for approximately $38.2 million at August 31, 2012, for the benefit of NEH related to interest on the Westinghouse Bonds (the Interest LC). The Interest LC automatically renewed in declining amounts equal to the interest remaining to be paid over the life of the Westinghouse Bonds, until we exercised the Put Options on October 6, 2012, which requires the payment of the Westinghouse Bonds. The Westinghouse Bonds were issued in two tranches, a floating-rate tranche and a fixed-rate tranche, and will mature March 15, 2013. We entered into contracts to fix the JPY-denominated interest payments on the floating rate tranche. (See Note 10 - Debt and Revolving Lines of Credit for additional discussion of the accounting for these contracts.) Other than the Principal LC and the Interest LC delivered at the closing of the Westinghouse Bonds and an agreement to reimburse Toshiba for amounts related to possible changes in tax treatment, we are not required to provide any additional letters of credit or cash to or for the benefit of NEH.
Note 8 - Equity Method Investments and Variable Interest Entities
Under ASC 810-10, a partnership or joint venture is considered 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.
If the entity is determined to be a VIE, we assess whether we are the primary beneficiary and whether we need to consolidate the entity. ASC 810-10, as amended by ASU 2009-17, requires companies to utilize a qualitative approach to determine if it is the primary beneficiary of a VIE. A company is deemed to be the primary beneficiary and must consolidate its partnerships and joint ventures if the company has both (1) the power to direct the economically significant activities of the entity and (2) the obligation to absorb losses of, or the right to receive benefits from, the entity that could potentially be significant to the VIE. The contractual agreements that define the ownership structure and equity investment at risk, distribution of profits and losses, risks, responsibilities, indebtedness, voting rights and board representation of the respective parties are used to determine if the entity is a VIE and whether we are the primary beneficiary and must consolidate the entity. Additionally, we consider all parties that have direct or implicit variable interests when determining whether we are the primary beneficiary. Upon the occurrence of certain events outlined in ASC 810-10, we reassess our initial determination of whether the entity is a VIE and whether consolidation is required. If consolidation of the VIE or joint venture is not required, we generally account for these joint ventures using the equity method of accounting with our share of the earnings (losses) from these investments reflected in one line item on the consolidated statement of operations.
The majority of our partnerships and joint ventures are VIEs because the total equity investment is typically nominal and not sufficient to permit the entity to finance its activities without additional subordinated financial support. However, some of the VIEs do not meet the consolidation requirements of ASC 810-10 because we are not deemed to be the primary beneficiary. Some of our VIEs have debt, but the debt is typically non-recourse in nature. At times, our participation in VIEs requires agreements to provide financial or performance assurances to clients.
ASC 810-10, as amended, requires that we continuously assess whether we are the primary beneficiary of our VIEs. Accordingly, we analyzed all of our VIEs at August 31, 2012, and classified them into two groups:
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Joint ventures that should be consolidated because we hold the majority voting interest or because they are VIEs and we are the primary beneficiary, and
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Joint ventures that should not be consolidated because we hold a minority voting interest or because they are VIEs, but we are not the primary beneficiary.
Consolidated Joint Ventures
The following table presents the total assets and liabilities of our consolidated joint ventures (in thousands):
Total revenues of the consolidated ventures were $894.7 million for the twelve months ended August 31, 2012, respectively, as compared to $695.1 million for the twelve months ended August 31, 2011, respectively.
For the twelve months ended August 31, 2012 and 2011, there were no material changes in our ownership interests in our consolidated joint ventures. In addition, we have immaterial amounts of other comprehensive income attributable to the noncontrolling interests.
Generally, the assets of our consolidated joint ventures are restricted for use only in the joint venture and are not available for general corporate purposes.
The following is a summary of our significant consolidated VIE at August 31, 2012:
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In November 1993, Shaw-Nass Middle East, W.L.L. (Shaw-Nass) was created to support the fabrication and distribution of pipe in the Middle East and is located in Bahrain. We acquired a 49% equity interest in the joint venture, and have made advances to the entity and have issued interest bearing loans to fund working capital and to finance certain equipment purchases. This entity which is included in our Fabrication & Manufacturing (F&M) segment had total assets of approximately $21.4 million and total liabilities of $4.6 million at August 31, 2012. The creditors of Shaw-Nass, which are currently limited to vendors and suppliers, do not have recourse to our general credit. Our maximum exposure to loss is limited to our equity interest of $8.4 million at August 31, 2012.
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In January 2011, Kings Bay Support Services, LLC (KBSS) was created to propose and execute a Base Operations Support Services contract at Naval Submarine Base, Kings Bay, GA . KBSS was awarded the contract and began operations on December 1, 2011. We have a 65% membership interest in the entity, which is included in our E&I segment. KBSS had total assets of $17.6 million and total liabilities of $8.1 million as of August 31, 2012. The creditors of KBSS, which are currently limited to vendors and subcontractors, do not have recourse to our general credit. Our maximum exposure to loss is limited to our equity interest and amounts payable to Shaw for services provided to the entity.
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In January 2010, Shaw SK Engineering & Construction Middle East Ltd. (Shaw SKEC) was created to own and support a pipe fabrication facility in the United Arab Emirates. Through its wholly owned subsidiary, Shaw Emirates Pipes Manufacturing LLC, it supports the fabrication and distribution of pipe in the Middle East. We have an equity interest of 56% in the Shaw SKEC joint venture and this entity is included in our F&M segment. At August 31, 2012, it had total assets of $45.8 million and total liabilities of $23.1 million. Our maximum exposure to loss is 59% and amounts payable to Shaw for services provided to the entity.
Unconsolidated Joint Ventures
We use the equity method of accounting for our unconsolidated joint ventures. Under GAAP, use of the equity method is appropriate in circumstances in which an investor has the ability to exercise significant influence over the operating and financial policies of an investee. GAAP presumes significant influence exists as a result of holding an investment of 20% or more in the voting stock of an investee, absent predominant evidence to the contrary. Management must exercise its judgment in determining whether a minority holder has the ability to exercise significant influence over the operating and financial policies of an investee. Under the equity method, we recognize our proportionate share of the net earnings of these joint ventures in two line items, Income from 20% Investment in Westinghouse, net of income taxes and earnings (losses) from other unconsolidated entities, in our consolidated statements of operations.
Investment in Westinghouse
Our most significant investment accounted for under the equity method is our wholly owned, special purpose subsidiary Nuclear Energy Holdings’ (NEH) 20% equity interest in Westinghouse. Factors supporting our assessment that we have the ability to exercise significant influence within Westinghouse include: (i) our CEO’s position as one of three Directors on the Boards of Directors of the companies comprising Westinghouse and ongoing participation in these Boards’ deliberations; (ii) NEH’s right to appoint a representative to an advisory committee (the Owner Board), whose functions are to advise as to the administration and supervision of matters regarding the Westinghouse Group and provide advice on other matters, including supervision of the business, and our ongoing exercise of that right; (iii) the material number of consortium agreements we have entered into with Westinghouse over time; (iv) our participation in periodic Westinghouse management reviews; and (v) the requirement that the Owner Board review and approve certain defined business transactions. We review the accounting treatment for this investment on a quarterly basis. Based upon our analysis of these factors and our expectations for the future, we concluded that no change from the equity method of accounting is warranted at August 31, 2012. We expect to continue accounting for this investment under the equity method until the put is settled and our investment is sold on or before January 4, 2013.
Westinghouse maintains its accounting records for reporting to its majority owner, Toshiba, on a calendar quarter basis with a March 31 fiscal year end. Financial information about Westinghouse’s operations is available to us for Westinghouse’s calendar quarter periods. We record our 20% interest of the equity earnings (loss) and other comprehensive income (loss) reported to us by Westinghouse two months in arrears of our current periods. Under this policy, our fiscal 2012, 2011 and 2010 equity in earnings include Westinghouse’s operations for the periods July 1st, through June 30th for the years 2012, 2011 and 2010.
Summarized unaudited financial information for Westinghouse, before applying our Westinghouse Equity Interest, was as follows (in thousands):
For all other jointly owned operations that are accounted for using the equity method of accounting, aggregated summarized financial information before applying our ownership interest is as follows (in thousands):
Our investment in the Badger Licensing joint venture was sold as part of the E&C Sale on August 31, 2012. All statement of operations amounts above include this joint venture, as well as prior year balance sheet amounts. The August 31, 2012, balance sheet amounts do not include this joint venture.
Our investments in and advances to unconsolidated entities, joint ventures and limited partnerships and our overall percentage ownership of these ventures that are accounted for under the equity method were as follows (in thousands, except percentages):
Earnings (losses) from unconsolidated entities, net of income taxes, are summarized as follows (in thousands):
During fiscal year 2012, the Company teamed with NET Power, Exelon and Toshiba to begin development of a new gas-fired power generation technology called NET Power that will produce cost-effective power with little to no air emissions. The new technology is based on a high-pressure supercritical carbon dioxide oxyfuel power cycle. The primary byproduct is pipeline quality, high-pressure carbon dioxide, which can be used for enhanced oil recovery. We will acquire up to 50 percent of the NET Power LLC through a commitment to invest up to $50.4 million, contingent upon demonstration of technological feasibility, and will have exclusive rights to engineer, procure and construct NET Power plants. During fiscal year 2012 we invested $2.5 million for a 6.3% interest in NET Power LLC, including $2.3 million in cash and $0.2 million in in-kind engineering services. These cash and in-kind contributions were expensed as a component of loss from unconsolidated subsidiaries as technological feasibility associated with the development project has not been established.
See Note 19 - Related Party Transactions for information regarding related party transactions with unconsolidated entities included in our consolidated financial statements.
Note 9 - Goodwill and Other Intangibles
Goodwill
The following table reflects the changes in the carrying value of goodwill by segment for fiscal years 2012 and 2011 (in thousands):
The measurement period for purchase price allocations ends as soon as information on the facts and circumstances becomes available but will not exceed 12 months. Adjustments in the purchase price allocation may require a recasting of the amounts allocated to goodwill retroactive to the period in which the acquisition occurred. We had tax-deductible goodwill of approximately $46.5 million and $65.8 million at August 31, 2012, and August 31, 2011, respectively. The difference between the carrying value of goodwill and the amount deductible for taxes is primarily due to the amortization of goodwill allowable for tax purposes.
In connection with the E&C Sale, all E&C goodwill was written off as of August 31, 2012.
Goodwill Impairment Review
We performed our annual goodwill impairment review on March 1, 2012. Our review did not indicate an impairment of goodwill for any of our reporting units. For each reporting unit, the fair value of assets exceeded its book value of assets by more than 10%.
In our goodwill impairment review, we used the same methodology as in 2011 and estimated the fair value for our reporting units by averaging the results obtained from an income approach and a market approach (implied fair value measured on a non-recurring basis using Level 3 inputs). The income approach uses a reporting unit’s projection of estimated operating results and discounts those back to the present using a weighted-average cost of capital that reflects current market conditions. To arrive at our cash flow projections, we use current estimates of economic and market information over a projection period of five years, including revenue growth rates, costs, estimates of future operating margins and working capital requirements. Other significant estimates and assumptions include terminal value growth rates, future estimates of capital expenditures and changes in future working capital requirements. The discount rates used in the discounted cash flow models ranged from 11.3% to 20.1%. The terminal value was calculated by using a terminal value capitalization rate of 3%.
We use the guideline public company method as our market approach. This method relies on valuation multiples derived from stock prices, financial results and enterprise values from the trailing twelve months or the next twelve months of publicly traded companies that are comparable to the subject reporting unit. The derived valuation multiples are then applied to the reporting unit’s earnings before interest expense, taxes, depreciation and amortization (EBITDA) and earnings before interest expense and income taxes (EBIT) to develop an estimate of the fair value of the subject reporting unit. The earnings multiples used in our goodwill impairment review ranged between 5.5 times and 13.1 times. In addition, the guideline public company method uses a control premium to arrive at the fair value of operations. In our goodwill impairment models, we used a 20% control premium for all of our reporting units.
Changes in assumptions or estimates used in our goodwill impairment testing could materially affect the determination of the fair value of a reporting unit, and therefore could eliminate the excess of fair value over carrying value of a reporting unit and, in some cases, could result in impairment. Changes in the assumptions used in our goodwill impairment testing could be caused by a loss of one or more significant contracts, reductions in government and/or private industry spending or a decline in the demand for our services due to changing economic conditions. Further, given the nature of our business, if we are unable to win or renew contracts, unable to estimate and control our contract costs, fail to adequately perform to our clients’ expectations, fail to procure third-party subcontractors, heavy equipment and materials or fail to adequately secure funding for our projects, our profits, revenues and growth over the long-term would decline and such a decline could significantly affect the fair value assessment of our reporting units and cause our goodwill to become impaired. If our goodwill were impaired, we would be required to record a non-cash charge that could have a material adverse effect on our consolidated financial statements. However, any potential non-cash charge would not have any adverse effect on the covenant calculations required under our Facility or our overall compliance with the covenants of our Facility.
Other Intangible Assets
At August 31, 2012 and 2011, amortizable intangible assets included in other assets consisted of patents and client relationships acquired in the IT Group acquisition in fiscal year 2002 (both of which are fully amortized at August 31, 2012), as well as client relationships (amortized over a seven-year period) and non-compete agreements (amortized over a three-year period) acquired in the CPE acquisition in fiscal year 2011. At August 31, 2011, amortizable intangible assets also consisted of proprietary ethylene technology acquired in the Stone & Webster acquisition in fiscal year 2000 and certain petrochemical process technologies, patents and tradenames acquired in the Badger Technologies acquisition in fiscal year 2003 (both of which were being amortized over fifteen years), which were sold as part of the E&C Sale on August 31, 2012.
We amortize all of these intangible assets using the straight line method. Amortization expense included in cost of revenues was $3.4 million, $3.2 million and $3.0 million for the fiscal years ended August 31, 2012, 2011 and 2010, respectively.
The gross carrying values and accumulated amortization of amortizable intangible assets are presented below (in thousands):
The following table presents the scheduled future annual amortization for our intangible assets not associated with contract adjustments (in thousands):
Note 10 - Debt and Revolving Lines of Credit
Our debt (including capital lease obligations) consisted of the following (in thousands):
Annual scheduled maturities of debt and minimum lease payments under capital lease obligations during each year ending August 31 are as follows (in thousands):
Westinghouse Bonds
On October 13, 2006, NEH, our wholly owned, special purpose subsidiary, issued JPY 128.98 billion (equivalent to approximately $1.1 billion at the time of issuance) principal amount limited recourse bonds, maturing March 15, 2013, at a discount receiving approximately $1.0 billion in proceeds, excluding offering costs. NEH used the proceeds of these bonds to purchase the Westinghouse Equity for approximately $1.1 billion. The Westinghouse Bonds are limited recourse to us (except to NEH), are governed by the Bond Trust Deed and are collateralized primarily by the Westinghouse Equity, the JPY-denominated Put Options between NEH and Toshiba and the Principal Letter of credit, which cover interest owed to bond holders and the possible 3.3% principal exposure.
The holders of the Westinghouse Bond may have the ability to cause us to put our Westinghouse Equity back to Toshiba as a result of the occurrence of a “Toshiba Event” (as defined under the Bond Trust Deed) that occurred in May 2009. A Toshiba Event is not an event of default or other violation of the Bond Trust Deed or the Put Option Agreements, but due to the Toshiba Event, the Westinghouse Bond holders had an opportunity to direct us to exercise the Put Options, through which we would have received the pre-determined JPY-denominated put price whose proceeds must be used to pay off the JPY-denominated Westinghouse Bond debt. To do so, a “supermajority” of the Westinghouse bond holders representing a majority of not less than an aggregate 75% of the principal amount outstanding must have passed a resolution instructing the bond trustee to direct us to exercise the Put Options.
Because the holders of the bonds had the ability to require us to exercise the Put Options to retire the bonds, we reclassified the Westinghouse Bonds from long-term debt to short-term debt and our Investment in Westinghouse to current assets in May 2009.
The Put Options, executed as part of the Investment in Westinghouse transaction, provide NEH the option to sell all or part of the Westinghouse Equity to Toshiba for a pre-determined JPY-denominated put price. On October 6, 2012, NEH exercised its Put Options to sell the Westinghouse Equity to Toshiba. Under the terms of the put option agreements, the Put Options will be cash settled on or before January 4, 2013 with the proceeds deposited in trust to fund retirement of the Westinghouse Bonds on March 15, 2013.
The Put Options require Toshiba to purchase the Westinghouse Equity at a price equivalent to not less than 96.7 percent of the principal amount of the bonds, which was approximately $1,586.4 million (JPY 124.7 billion at August 31, 2012). NEH will fund up to the 3.3 percent shortfall of the principal amount of the bonds, which was approximately $54.1 million (JPY 4.3 billion) at August 31, 2012. We may recognize a non-operating gain once the Put Options are settled, resulting principally from foreign exchange movements. If the bonds would have been repaid at August 31, 2012, from an early exercise of the Put Options, the gain would have been approximately $504.1 million pre-tax. The actual gain or loss will be determined at settlement.
Because any proceeds from the repurchase of the Westinghouse Equity (including funds received in connection with settlement of the Put Options) must be used to repay the Westinghouse Bonds, ultimate settlement of the Westinghouse Bonds may be significantly influenced by Toshiba’s financial condition as well as conditions in the general credit markets.
The exchange rate of the JPY to the USD at August 31, 2012, and August 31, 2011, was 78.6 and 76.8, respectively.
The Westinghouse Bonds consisted of the following (in thousands):
On October 16, 2006, we entered into an interest rate swap agreement through March 15, 2013, in the aggregate notional amount of JPY 78 billion. We designated the swap as a hedge against changes in cash flows attributable to changes in the benchmark interest rate. Under the agreement, we make fixed interest payments at a rate of 2.398%, and we receive a variable interest payment equal to the six-month JPY London Interbank Offered Rate (LIBOR) plus a fixed margin of 0.70%, effectively fixing our interest rate on the floating rate portion of the JPY 78 billion Westinghouse Bonds at 2.398%. At August 31, 2012, and August 31, 2011, the fair value of the swap totaled approximately $13.4 million and $27.1 million, respectively, and is included as a current liability and in accumulated other comprehensive loss, net of deferred taxes, in the accompanying consolidated balance sheets. There was no material ineffectiveness of our interest rate swap for the three and nine months ended August 31, 2012.
Credit Facility
On June 15, 2011, we entered into an unsecured second amended and restated credit agreement (Facility) with a group of lenders that effectively terminated an earlier agreement. The Facility provides lender commitments up to $1,450.0 million, all of which may be available for the issuance of performance letters of credit. The Facility has a sublimit of $1,250.0 million that may be available for the issuance of financial letters of credit and/or borrowings for working capital needs and general corporate purposes.
At August 31, 2012, the amount of the Facility available for financial letters of credit and/or revolving credit loans was $804.9 million, which is equal to the lesser of: (i) $1,202.9 million, representing the total Facility commitment ($1,450.0 million) less outstanding performance letters of credit ($143.8 million) less outstanding financial letters of credit ($103.3 million); (ii) $1,146.7 million, representing the Facility sublimit of $1,250.0 million less outstanding financial letters of credit ($103.3 million); or (iii) $804.9 million, representing the maximum additional borrowings allowed under the leverage ratio covenant (as defined below) contained in the Facility.
Under the Facility, all collateral securing the previous agreement was released, and the expiration of commitments was extended through June 15, 2016. The Facility continues to require guarantees by the Company’s material wholly owned domestic subsidiaries. The Facility allows the Company to seek new or increased lender commitments under it subject to the consent of the Administrative Agent and/or seek other unsecured supplemental credit facilities of up to an aggregate of $500.0 million, all of which would be available for the issuance of performance and financial letters of credit and/or borrowings for working capital needs and general corporate purposes. However the Transaction Agreement, discussed in Note 1 - Description of Business and Summary of Significant Accounting Policies, restricts any such new or increased lender commitments. Additionally, the Company may pledge up to $300.0 million of its unrestricted cash on hand to secure additional letters of credit incremental to amounts available under the Facility, provided that the Company and its subsidiaries have unrestricted cash and cash equivalents of at least $500.0 million available immediately following the pledge. The Facility contains a revised pricing schedule with respect to letter of credit fees and interest rates payable by the Company.
The Facility contains customary financial covenants and other restrictions including an interest coverage ratio (ratio of Shaw EBITDA to consolidated interest expense) and a leverage ratio (ratio of total debt to Shaw EBITDA) with all terms defined in the Facility and (i) maintains or resets maximum allowable amounts certain threshold triggers and certain additional exceptions with respect to the dividend, stock repurchases, investment, indebtedness, lien, asset sale, letter of credit and acquisitions and (ii) additional covenants, thus providing the Company with continued financial flexibility in business decisions and strategies. The Facility contains defaulting lender provisions.
The Facility limits our ability to declare or pay dividends or make any distributions of capital stock (other than stock splits or dividends payable in our own capital stock) or redeem, repurchase or otherwise acquire or retire any of our capital stock. The Facility permits us to make stock repurchases or dividend payments of up to $500.0 million so long as, after giving effect to such purchases or payments, our unrestricted cash and cash equivalents is at least $500.0 million. We are limited to aggregate dividend payments and/or stock repurchases during the life of the Facility up to $500.0 million. In situations where our unrestricted cash and cash equivalents is less than $500.0 million, our ability to pay dividends or repurchase our shares is limited to $50.0 million per fiscal year. The payment of cash dividends is restricted if an event of default has occurred and is continuing under the Facility. The restrictions under our Facility currently do not impair our ability to complete our share repurchase program. For additional information on our share repurchase program, see Note 12 - Capital Stock and Share Repurchase Program.
The total amount of fees associated with letters of credit issued under the Facility were approximately $7.3 million, $8.2 million and $12.4 million for fiscal year 2012, 2011 and 2010, respectively, which includes commitment fees associated with unused credit line availability of approximately $3.7 million, $3.5 million and $3.5 million, respectively.
For the fiscal years ended August 31, 2012, 2011 and 2010, we recognized $2.5 million, $5.2 million and $4.6 million, respectively, of interest expense associated with the amortization of financing fees related to our Facility. At August 31, 2012, and 2011, unamortized deferred financing fees related to our Facility were approximately $9.4 million and $11.8 million, respectively.
At August 31, 2012, we were in compliance with the financial covenants contained in the Facility.
Other Revolving Lines of Credit
Shaw-Nass, a consolidated VIE located in Bahrain, has an available credit facility (Bahrain Facility) with a total capacity of 3.0 million Bahraini Dinars (BHD) or approximately $8.0 million, of which BHD 1.5 million is available for bank guarantees and letters of credit. At August 31, 2012, Shaw-Nass had $0.6 million in borrowings under its revolving line of credit and $0.2 million in outstanding bank guarantees under the Bahrain Facility. The interest rate applicable to any borrowings is a variable rate (1.24% at August 31, 2012) plus 3.00% per annum. We have provided a 50% guarantee related to the Bahrain Facility.
We have uncommitted, unsecured standby letter of credit facilities with banks outside of our Facility. Fees under these facilities are paid quarterly. At August 31, 2012, there were $82.5 million in outstanding letters of credit under these facilities. At August 31, 2011, there were $1.9 million.
Note 11 - Income Taxes
Intraperiod Allocation of Income Taxes:
Income tax attributable to income (loss) before income taxes, minority interest and earnings (losses) from unconsolidated entities:
Other accrued liabilities include $16.4 million and $6.0 million at August 31, 2012 and 2011, respectively, of current income taxes payable, including amounts due for foreign and state income taxes. Prepaid expenses and other current assets at August 31, 2011 include $81.5 million of income taxes refundable, including the benefit of net operating losses generated in the US which was carried back to reduce US taxable income reported in fiscal year 2009.
Income (loss) before income taxes and earnings (losses) from unconsolidated entities (pre-tax income):
A reconciliation of the significant differences between the effective income tax rate and the federal statutory rate on income (loss) before income taxes and earnings (losses) from unconsolidated entities (pre-tax income) is as follows:
The Company’s effective tax rate on income before income taxes and earnings (losses) from unconsolidated entities excluding noncontrolling interests for the years ended August 31, 2012, 2011 and 2010 was 20%, 35% and 34% respectively.
Deferred Taxes
The tax effect of temporary differences that give rise to significant portions of the deferred tax accounts:
Unremitted Earnings
We have not recognized a deferred tax liability of approximately $111.3 million for the undistributed earnings of our foreign operations that arose in 2012 and prior years as we consider these earnings to be indefinitely invested. As of August 31, 2012, the undistributed earnings of these subsidiaries were approximately $287.6 million. A deferred tax liability will be recognized when we can no longer demonstrate that we plan to permanently reinvest the undistributed earnings.
Losses and Valuation Allowances
The valuation allowance for deferred tax assets at August 31, 2012 and 2011 was $ 33.0 million and $32.4 million, respectively. These valuation allowances were related to foreign and state net operating loss carryforwards. The net change in the total valuation allowance for each of the years ended August 31, 2012, 2011 and 2010 was an increase of $0.6 million, $5.0 million and $5.4 million, respectively. During fiscal 2012, a valuation allowance was established for certain state net operating losses which, if realizable, would reduce future state taxes payable totaling $5.4 million while valuation allowances totaling $3.3 million associated with certain state net operating losses and $3.1 million associated with the E&C Sale were released. Additionally, the valuation allowance increased $1.6 million as a result of a tax rate change. During fiscal 2011, a valuation allowance was established for certain additional state net operating losses which, if realizable, would reduce future state taxes payable totaling $8.5 million while valuation allowances totaling $1.7 million were released. Additionally, the valuation allowance decreased $2.4 million as a result of a tax rate change.
At August 31, 2012, we have U.S. federal net operating loss carryforwards totaling $18.4 million that are limited to use at $2.0 million a year against future federal taxable income and expires through 2022. Additionally, we have $22.0 million of foreign net operating losses available for carryforward with varying expiration dates. There are also state net operating losses available for carryforward which would reduce future state taxes payable by up to $40.0 million of which we currently believe that $8.6 million will be utilized. A valuation allowance has been established for the difference.
In assessing the realizability of deferred tax assets, management considers whether it is more likely than not that some portion or all of the deferred tax assets will not be realized. The ultimate realization of deferred tax assets is dependent upon the generation of future taxable income in those jurisdictions during the periods in which those temporary differences become deductible. Management considers the scheduled reversal of deferred tax liabilities (including the impact of available carryback and carryforward periods), projected future taxable income and tax-planning strategies in making this assessment. Based on the level of historical federal taxable income and projections for future federal taxable income over the periods for which the U.S. deferred tax assets are deductible, management believes that it is more likely than not that we will realize the benefits of these deductible differences, net of the existing valuation allowances at August 31, 2010. The amount of the deferred tax asset considered realizable, however, could be reduced in the near term if estimates of future taxable income during the carryforward period are reduced.
Uncertain Tax Positions
Under ASC 740, we provide for uncertain tax positions, and the related interest, and adjust unrecognized tax benefits and accrued interest accordingly. Unrecognized tax benefits are included in the consolidated balance sheets as other liabilities, except to the extent payment is expected within one year. We recognize potential interest and penalties related to unrecognized tax benefits in income tax expense. A reconciliation of unrecognized tax benefits, interest and penalties is as follows:
The portion of the balance at August 31, 2012 and 2011, that would affect our effective tax rate was $6.2 million and $29.2 million, respectively. Interest, net of tax benefit, and penalties included in the balance at August 31, 2012 and 2011, was $0.3 million and $4.1 million. The remaining difference represents the amount of unrecognized tax benefits for which the ultimate tax consequence is certain, but for which there is uncertainty about the timing of the tax consequence recognition. Because of the impact of deferred tax accounting, the timing would not impact the annual effective tax rate but could accelerate the payment of cash to the taxing authority to an earlier period.
We file income tax returns in numerous tax jurisdictions, including the U.S., most U.S. states and certain non-U.S. jurisdictions including jurisdictions where our subsidiaries execute project-related work. The statute of limitations varies by the various jurisdictions in which we operate. With few exceptions, we are no longer subject to U.S. state and local or non-U.S. income tax examinations by tax authorities for years before fiscal year 2004 and US Federal examinations for years before fiscal 2009. Although we believe our calculations for our tax returns are correct and the positions taken thereon are reasonable, the final outcome of tax audits could be materially different than the resolution we currently anticipate, and those differences could result in significant costs or benefits to us.
Unrecognized tax benefits increased $1.0 million for current year positions and $2.9 million for positions in prior years. We released provisions for unrecognized tax benefits totaling $18.5 million to income tax expense and $1.6 million to equity as a result of the statutes of limitations for several tax years in various jurisdictions lapsing on August 31, 2012.
During fiscal year 2012, the audit of our US federal tax returns for fiscal years 2009 and 2010 by the Internal Revenue Service was completed. The IRS is now in the process of conducting audits of fiscal year 2011 under a limited focused examination and fiscal year 2012 under its Compliance Assurance Process (CAP). Under CAP, the IRS works with large business taxpayers on a contemporaneous, real-time basis to resolve issues prior to the filing of tax returns which allows participants to remain current with
IRS examinations.
We do not believe there will be significant changes in our unrecognized tax benefits within the next 12 months.
Note 12 - Capital Stock and Share Repurchase Program
We are authorized to issue an aggregate of two hundred twenty million (220,000,000) shares, of which two hundred million (200,000,000) shares shall be common stock, no par value (Common Stock), and twenty million (20,000,000) shares shall be preferred stock, no par value (Preferred Stock). Each outstanding share of Common Stock entitles its holder to one vote on each matter properly submitted to our shareholders for their vote, waiver, release, or other action. There are no preemptive rights with respect to any class of stock.
Preferred Stock: Our Board of Directors is authorized to issue Preferred Stock from time to time in one or more series and with such rights, privileges, and preferences as the Board of Directors shall from time to time determine. We have not issued any shares of preferred stock.
Common Stock: At August 31, 2012 and 2011, we had 93,016,409 and 91,711,102 shares issued and 66,425,168 and 71,306,382 shares outstanding, respectively.
Treasury Stock: Treasury stock is recorded at cost. At August 31, 2012 and 2011, we had 26,591,241 and 20,404,720 shares classified as Treasury Stock at a cost of $791.9 million and $639.7 million, respectively. For the fiscal years ended August 31, 2012 and 2011, the repurchases of shares were as follows (cost in thousands):
(1) Excluding commissions, fees and expenses
(2) Including commissions, fees and expenses
The repurchased shares are being held in treasury and are available for reissuance.
While we continue to have an open authorization from our Board to repurchase up to $326.1 million in shares, subject to limitations contained in the Facility, the Transaction Agreement contains covenants that restrict our ability to repurchase shares. See Note 1 - Description of Business and Summary of Significant Accounting Policies for discussion regarding the Transaction Agreement with CB&I and Note 10 - Debt and Revolving Lines of Credit for additional information on our Facility.
Note 13 - Share-Based Compensation
Share-Based Compensation Plans
We have utilized the following share-based compensation plans to provide equity incentive award opportunities to our directors, officers, and key employees. These plans are administered by the Compensation Committee of the Board of Directors, which approves participant eligibility, the number of shares awarded and the terms, conditions, and other provisions of each award:
Shares not awarded that were previously available under the 1993 and 1996 Plans have expired. Upon adoption of the 2008 Omnibus Incentive Plan, our existing share-based compensation plans, including the 2001 Plan and the Directors’ Plan (collectively the Prior Plans), terminated. No new awards will be granted under the Prior Plans, and there is no longer any authority to issue the remaining shares of common stock available under the Prior Plans. All awards granted under these plans that were outstanding as of January 28, 2009 remain outstanding and continue to be governed by the Prior Plans.
Shares available for future stock option and restricted stock based award grants to employees, officers and directors under the 2008 Omnibus Incentive Plan were 1,785,135 and 2,023,529 at August 31, 2012 and August 31, 2011, respectively.
Stock Options
We granted stock options under the stock-based compensation plans described above in fiscal years 2011 and prior. Stock options were not issued in fiscal year 2012. Stock options generally vest annually on a ratable basis over four years with a total term to exercise of ten years from grant date. Awards are issued with an exercise price equal to the market value of our stock on the grant date.
We use the Black-Scholes option pricing model to estimate the grant date fair value of stock option awards. The table below includes the weighted-average grant date assumptions used for awards granted in fiscal years 2011 and 2010.
Expected volatility is based on implied volatilities of exchange-traded options on our stock as well as the historical volatility of our stock. The risk-free interest rate is based on the U.S. Treasury yield curve in effect at the time of grant. We did not issue any dividends on our common stock for the years presented so the assumed dividend yield used to calculate the grant date fair value was zero. The expected term assumption is based on multiple factors, including future and historical employment and post-employment option exercise patterns for certain relatively homogeneous participants.
The following table represents the stock option compensation expense that is included in selling, general and administrative expenses and cost of revenues in the accompanying consolidated statements of operations (in millions):
At August 31, 2012, we have $7.1 million of unrecognized compensation expense related to unvested stock options expected to be recognized over a weighted-average period of 1.3 years. The grant date fair value of stock options that vested during fiscal years 2012, 2011, and 2010 was $10.0 million, $10.2 million, and $11.1 million, respectively.
The following table represents stock option activity from September 1, 2010 to August 31, 2012:
The aggregate intrinsic value of options outstanding was $55.0 million, $12.8 million, and $40.9 million at August 31, 2012, 2011, and 2010, respectively. The aggregate intrinsic value of options exercisable was $42.1 million, $10.2 million, and $25.5 million at August 31, 2012, 2011, and 2010, respectively. The total intrinsic value of options exercised was $9.7 million, $6.6 million, and $9.8 million for the fiscal years ended August 31, 2012, 2011, and 2010, respectively.
Net cash proceeds from the exercise of stock options for the fiscal years ended August 31, 2012, 2011, and 2010 were $16.0 million, $11.0 million, and $16.2 million, respectively. We receive a tax deduction for certain stock options when exercised, generally for the excess of the fair value at the date of exercise over the option exercise price. Excess tax benefits related to the exercise of equity-classified stock options are reflected as financing cash inflows. The actual income tax benefit realized in the consolidated statements of operations from stock option exercises was $3.4 million, $2.4 million and $1.8 million for the fiscal years ended August 31, 2012, 2011, and 2010, respectively.
Cash-Settled Stock Appreciation Rights (SARs)
In fiscal year 2011, we granted SARs under our 2008 Omnibus Incentive Plan which allow the holder to receive in cash the difference between the grant price (the market value of our stock on the grant date) and the market value of our stock on the date of exercise. SARs were not issued in fiscal year 2012. The SARs vest over four years.
We use the Black-Scholes option pricing model to estimate the grant date fair value of SARs. The table below includes the weighted-average grant date assumptions used for the awards granted in fiscal year 2011. See the Stock Options section above for a more detailed discussion of these assumptions.
The SARs are liability-classified awards. Compensation cost for liability-classified awards is re-measured at each reporting period and is recognized as an expense over the requisite service period. During the year ended August 31, 2011, the Black-Scholes option pricing model was used to re-measure the value of the SARs at each reporting period. During the year ended August 31, 2012, we switched to using a binomial model to re-measure the value of the SARs at each reporting period. We believe that the binomial model produces a better estimate of the fair value of the SARs.
The following table represents the SAR compensation expense that is included in selling, general and administrative expenses and cost of revenues in the accompanying consolidated statements of operations (in millions):
At August 31, 2012, we have $2.5 million of unrecognized compensation expense related to unvested SARs expected to be recognized over a weighted-average period of 1.6 years.
The following table represents SAR activity from September 1, 2010 to August 31, 2012:
The aggregate intrinsic value of SARs outstanding was $2.7 million and $0.0 million at August 31, 2012 and 2011, respectively. The aggregate intrinsic value of SARs exercisable was $0.7 million and $0.0 million at August 31, 2012 and 2011, respectively. The total intrinsic value of SARs exercised was $0.1 million and $0.0 million for the fiscal years ended August 31, 2012 and 2011, respectively.
Cash paid upon the exercise of SARs totaled $0.1 million during fiscal year 2012. No amounts were paid in fiscal year 2011. Cash payments are reflected as operating cash outflows. At August 31, 2012 and 2011, the liabilities associated with cash-settled SARs included in the accompanying balance sheets totaled $2.2 million and $0.4 million, respectively.
Restricted Stock Units and Awards
In fiscal years 2011 and 2012, we granted restricted stock units under our 2008 Omnibus Incentive Plan. The compensation expense for restricted stock units and awards is determined based on the market price of our stock at the grant date applied to the total number of shares that are expected to fully vest. Restricted stock units and awards granted in fiscal year 2011 and prior generally vest over four years. Restricted stock units granted in fiscal year 2012 vest over three years.
The following table represents the restricted stock compensation expense that is included in selling, general and administrative expenses and cost of revenues in the accompanying consolidated statements of operations (in millions):
At August 31, 2012, we have unrecognized compensation expense of $14.9 million associated with unvested restricted stock units. This amount is expected to be recognized over a weighted-average period of 1.4 years.
The following table summarizes our unvested restricted stock unit and award activity from September 1, 2010 to August 31, 2012:
We receive a tax deduction when restricted stock units and awards vest at a higher value than the value used to recognize compensation expense at the grant date. Excess tax benefits related to the vesting of restricted stock units and awards are reflected as financing cash inflows. The actual income tax benefit realized from the vesting of restricted stock unit and award was $7.3 million, $9.6 million and $8.7 million for the fiscal years ended August 31, 2012, 2011, and 2010, respectively.
Cash-Settled Restricted Stock Units
In fiscal years 2011 and 2012, we granted cash-settled restricted stock units under our 2008 Omnibus Incentive Plan, which allow the holder to receive cash equal to the value of underlying restricted share units at predetermined vesting dates. Cash-settled restricted stock units granted in fiscal year 2011 and prior generally vest over four years. Cash-settled restricted stock units granted in fiscal year 2012 vest over three years.
The cash-settled restricted stock units are liability-classified awards. Compensation cost for liability-classified awards is re-measured at each reporting period and is recognized as an expense over the requisite service period. The cash-settled restricted stock units are re-measured using the closing stock price on the last business day of each reporting period.
The following table represents the cash-settled restricted stock unit compensation expense that is included in selling, general and administrative expenses and cost of revenues in the accompanying consolidated statements of operations (in millions):
At August 31, 2012, we have unrecognized compensation expense of $20.9 million associated with unvested cash-settled restricted stock units. This amount is expected to be recognized over a weighted-average period of 1.5 years.
The following table summarizes our unvested cash-settled restricted stock unit activity from September 1, 2010 to August 31, 2012:
Cash paid upon the vesting of cash-settled restricted stock units totaled $1.6 million during fiscal year 2012. There were no vestings in fiscal year 2011. Cash payments are reflected as operating cash outflows. At August 31, 2012 and 2011, the liabilities associated with cash settled restricted stock units included in the accompanying balance sheets totaled $9.2 million and $1.1 million, respectively.
Performance Cash Units (PCUs)
In fiscal year 2012, we granted PCUs under our 2008 Omnibus Incentive Plan which represent the right to receive $1 for each earned PCU if specified performance goals are met over the three-year performance period. The PCU recipients may earn between 0% and 200% of their individual target award amount depending on the level of performance achieved. The PCUs vest over approximately three years, with 25% vesting at the end of the first and second years/performance periods and 50% vesting at the end of the third year/performance period. PCUs were not awarded during fiscal year 2011.
The fair value of PCUs was estimated at the grant date based on the probability of satisfying the performance goals associated with the PCUs using a Monte Carlo simulation model. The table below includes the weighted-average grant date assumptions used to value the awards granted in fiscal year 2012. See the Stock Options section above for a more detailed discussion of these assumptions.
The PCUs are liability-classified awards due to the settlement of these awards in cash. The Monte Carlo Simulation model was used to re-measure the fair value of the PCUs at the end of each reporting period. PCU recipients earned 200% of their target award amounts for the performance period ended August 31, 2012. The cash payments will be reflected as operating cash outflows. At August 31, 2012, the liabilities associated with cash-settled PCUs included in the accompanying balance sheets totaled $8.8 million.
The following table represents the PCU compensation expense that is included in selling, general and administrative expenses and cost of revenues in the accompanying consolidated statements of operations (in millions):
At August 31, 2012, we have unrecognized compensation expense of $10.5 million associated with PCUs. This amount is expected to be recognized over a weighted-average period of 1.8 years.
The following table summarizes our PCU activity from September 1, 2011 to August 31, 2012:
Note 14 - Operating Leases
We lease certain office buildings, fabrication and warehouse facilities, machinery and equipment under various lease arrangements. Leases that do not qualify as capital leases are classified as operating leases, and the related lease payments are expensed on a straight-line basis over the lease term, including, as applicable, any free-rent period during which we have the right to use the asset. For leases with renewal options where the renewal is reasonably assured, the lease term, including the renewal period, is used to determine the appropriate lease classification and to compute periodic rental expense.
Certain of our operating lease agreements are non-cancelable and expire at various times and require various minimum rentals. The non-cancelable operating leases with initial non-cancelable periods in excess of twelve months that were in effect as of August 31, 2012, require us to make the following estimated future payments:
Future minimum lease payments as of August 31, 2012 have not been reduced by minimum non-cancelable sublease rentals aggregating approximately $1.7 million.
In 2002, we entered into a 10-year non-cancelable operating lease for our Corporate Headquarters building in Baton Rouge, Louisiana. In connection with this lease, we purchased an option for approximately $12.2 million for the right to acquire additional office space and undeveloped land for approximately $150.0 million or renew at below market rates for an additional 10-year term. On November 30, 2010, we exercised the option to renew the lease for an additional 10-year term at below market rates as stipulated in the lease agreement. Upon execution of the renewal, the real estate option was forgone. Therefore, the price paid for the option, as well as legal fees incurred in relation to the option, were reclassified as prepaid rent. The prepaid rent will be amortized over the life of the new term of the Corporate Headquarters building lease.
We also enter into lease agreements for equipment needed to fulfill the requirements of specific jobs. Any payments owed or committed under these lease arrangements as of August 31, 2012, are not included as part of total minimum lease payments shown above.
The total rental expense for the fiscal years ended August 31, 2012, 2011 and 2010 was approximately $140.0 million, $156.7 million and $178.8 million, respectively. Deferred rent payable (current and long-term) aggregated $23.5 million and $27.9 million at August 31, 2012 and 2011, respectively.
Note 15 - Contingencies and Commitments
Legal Proceedings
In the normal course of business, we are involved in a variety of legal proceedings, liability claims or contract disputes in many jurisdictions around the world. Some of these legal proceedings are associated with the performance of our services. At times, the nature of our business leads to disputes with clients, subcontractors and vendors relating to our entitlement to additional revenue and/or reduced costs. Occasionally, these disputes lead to our clients, subcontractors and vendors presenting claims against us for recovery of cost they incurred in excess of what they expected to incur, or for which they believe they are not contractually liable. In such matters, we evaluate both our claims against the client as well as any disputes and/or counterclaims asserted against us by the client or opposing party pursuant to ASC 450, and we record the probable outcome based upon this analysis. For an additional discussion of our claims on major projects, see Note 20 - Accounting for Claims, Unapproved Change Orders and Incentives on Long-Term Construction Contracts. The actual outcomes may differ materially from our analysis.
On November 12, 2010, the jury returned a split verdict in a dispute between our subsidiary, Stone & Webster, Inc. (S&W), and Xcel Energy (d/b/a Public Service of Colorado) related to Xcel Energy’s coal-fired power plant project in Pueblo, Colorado. As a result of this verdict, our Power segment recorded a reduction in gross profit of $63.4 million in the period ended November 30, 2010. During the first quarter of fiscal year 2012, we collected in excess of $40 million in outstanding receivables from Xcel Energy, which effectively closed this matter.
In connection with an EPC contract executed by our Power segment for a 600 MW steam turbine electrical generation plant in the U.S., we commenced an arbitration proceeding against our client for this project seeking the return of and relief from schedule related liquidated damages assessed by the client, a contract price adjustment and outstanding monies owed under our contract. In addition, we commenced an arbitration proceeding with our equipment and services supplier on this project. During the first quarter of fiscal year 2012, we contemporaneously settled all remaining disputes with our client and the equipment supplier, with an immaterial impact to our results of operations in the 2012 fiscal year.
In connection with an approximate $28.1 million contract executed by our F&M segment to supply fabricated pipe spools to a manufacturing facility in the U.S., our client filed a lawsuit in the U.S. District Court for the Eastern District of Washington alleging that shop-welding on the pipe spools we supplied were deficient and that the deliveries for some of the pipe spools were untimely. We reached a settlement with our client on this matter in October 2011 and recorded a $16.8 million charge to cost of revenue in fiscal year 2011 and are currently seeking recovery from our insurers. We paid the amounts due to our client in the first quarter of fiscal year 2012, which effectively closed this matter with our client. However, we continue to seek partial recovery from our insurers.
In connection with a cost reimbursable contract executed by our Power segment for the engineering, procurement and construction of flue gas desulfurization systems at three power generating facilities, we were involved in litigation with the client in the U.S. District Court, District of Maryland and the U.S. District Court, Southern District of New York. On January 14, 2011, we commenced the Maryland action with the filing of petitions to establish and enforce mechanics liens against the three projects in an amount totaling approximately $143.0 million. On June 5, 2012, we settled all outstanding claims and counterclaims with the client arising under the contract. As a result of the settlement, we recorded a $20.1 million charge to earnings in the three months ended May 31, 2012. On June 11, 2012, we collected approximately $107 million in cash, representing all of the remaining net accounts receivable associated with the project, which effectively ends this matter.
For additional information related to our claims on major projects, see Note 20 - Accounting for Claims, Unapproved Change Orders and Incentives on Long-Term Construction Contracts.
Following our announcement of the signed Transaction Agreement, several shareholders filed purported class action suits against Shaw, its directors, CB&I, and in some cases, against CB&I’s acquisition subsidiary. The plaintiffs generally allege breach of fiduciary duties of care and loyalty to Shaw shareholders because of, among other claims, inadequate consideration to be paid by CB&I for Shaw common stock. We believe that these lawsuits are without merit and intend to contest them vigorously.
Liabilities Related to Contracts
Our contracts often contain provisions relating to the following matters:
•
warranties, requiring achievement of acceptance and performance testing levels;
•
liquidated damages, if the project does not meet predetermined completion dates; and
•
penalties or liquidated damages for failure to meet other cost or project performance measures.
We attempt to limit our exposure through the use of the penalty or liquidated damage provisions and attempt to pass certain cost exposure for craft labor and/or commodity-pricing risk to clients. We also have claims and disputes with clients as well as vendors, subcontractors and others that are subject to negotiation or the contractual dispute resolution processes defined in the contracts. See Note 5 - Accounts Receivable, Concentrations of Credit Risk and Inventories, Note 20 - Accounting for Claims, Unapproved Change Orders and Incentives on Long-Term Construction Contracts and Legal Proceedings above for further discussion on these matters.
Other Guarantees
Our Facility lenders issue letters of credit on our behalf to clients or sureties in connection with our contract performance and, in limited circumstances, on certain other obligations of third parties. We are required to reimburse the issuers of these letters of credit for any payments that they make pursuant to these letters of credit. The aggregate amount of outstanding financial and performance letters of credit (including foreign and domestic, secured and unsecured) was approximately $329.6 million and $456.1 million at August 31, 2012, and August 31, 2011, respectively. Of the amount of outstanding letters of credit at August 31, 2012, $173.8 million are performance letters of credit issued to our clients. Of the $173.8 million, five clients held $160.5 million or 92.3% of the outstanding letters of credit. The largest letter of credit issued to a single client on a single project is $49.7 million.
In the ordinary course of business, we enter into various agreements providing financial or performance assurances to clients that may cover certain unconsolidated partnerships, joint ventures or other jointly executed contracts. These agreements are entered into primarily to support the project execution commitments and are generally a guaranty of our own performance. These assurances have various expiration dates ranging from mechanical completion of the facilities being constructed to a period extending beyond contract completion. The maximum potential payment amount of an outstanding performance guarantee is the remaining cost of work to be performed under engineering and construction contracts. Amounts that may be required to be paid in excess of our estimated cost to complete contracts in progress are not estimable. For cost reimbursable contracts, amounts that may become payable pursuant to guarantee provisions are normally recoverable from the client for work performed under the contract. For fixed price contracts, this amount is the cost to complete the contracted work less amounts remaining to be billed to the client under the contract. Remaining billable amounts could be greater or less than the cost to complete. In those cases where cost exceeds the remaining amounts payable under the contract, we may have recourse to third parties such as owners, co-venturers, subcontractors or vendors.
We have recorded a liability of $8.9 million associated with certain lease obligations in connection with the deconsolidation of our Toronto-based operations.
Environmental Liabilities
The LandBank Group, Inc. (LandBank), a subsidiary of our Environmental and Infrastructure (E&I) segment, remediates previously acquired environmentally impaired real estate. The real estate was recorded at cost, typically reflecting some degree of discount due to environmental issues related to the real estate. As remediation efforts are expended, the book value of the real estate is increased to reflect improvements made to the asset. Additionally, LandBank records a liability for estimated remediation costs for real estate that is sold, but for which the environmental obligation is retained. We also record an environmental liability for properties held by LandBank if funds are received from transactions separate from the original purchase to pay for environmental remediation costs. There are no recent additions to the LandBank portfolio of properties, and at this time we are not pursuing additional opportunities. Accordingly, we are not incurring incremental environmental liability beyond the portfolio that currently exists. Existing liabilities are reviewed quarterly, or more frequently, as additional information becomes available. We also have insurance coverage that helps mitigate our liability exposure. At August 31, 2012, and August 31, 2011, our E&I segment had approximately $1.2 million and $1.9 million, respectively, of environmental liabilities recorded in other liabilities in the accompanying balance sheets. LandBank environmental liability exposure beyond that which is recorded is estimated to be immaterial.
Employment Contracts
We have entered into employment agreements with each of our senior corporate executives and certain other key employees. In the event of termination, these individuals may be entitled to receive their base salaries, management incentive payments, and certain other benefits for the remaining term of their agreement and all options and similar awards may become fully vested. Additionally, for certain executives, in the event of death, their estates are entitled to certain payments and benefits.
Note 16 - Business Segments
Our reportable segments are Power; Plant Services; Environmental and Infrastructure (E&I); Fabrication and Manufacturing (F&M); Energy and Chemicals (E&C); Investment in Westinghouse; and Corporate.
The Power segment provides a range of project-related services, including design, engineering, construction, procurement, technology and consulting services, primarily to the global fossil and nuclear power generation industries.
The Plant Services segment performs routine and outage/turnaround maintenance, predictive and preventative maintenance, as well as construction and major modification services, to clients’ facilities in the fossil and nuclear power generation industries and industrial markets primarily in North America.
The E&I segment provides integrated engineering, design, construction and program and construction management services and executes environmental remediation solutions primarily to the U.S. government, state/local government agencies and private-sector clients worldwide. During the fourth quarter of fiscal year 2012, the consulting business that previously resided in our E&C segment, was incorporated into our E&I segment. The move of this business did not change the overall composition of the E&I segment, as it is not dissimilar to other consulting business already in the E&I segment. The transfer was also not material in relation to any previously filed segment reporting financial information. Therefore, the prior periods were not recasted to reflect this change.
The F&M segment provides integrated fabricated piping systems and services for new construction, site expansion and retrofit projects for power generating energy, chemical and petrochemical plants. We operate several pipe and steel fabrication facilities in the U.S. and abroad. We also operate two manufacturing facilities that provide pipe fittings for our pipe fabrication services operations, as well as to third parties. In addition, we operate several distribution centers in the U.S., which distribute our products to clients.
On August 31, 2012, we completed the E&C Sale for approximately $290.0 million in cash. Remaining in the E&C segment as of August 31, 2012, are our obligations under an engineering, procurement and construction contract associated with a large ethylene plant in southeast Asia that is nearing completion. Also retained was the consulting business, which was incorporated into our E&I segment as discussed above.
The Investment in Westinghouse segment includes NEH’s Westinghouse Equity and the Westinghouse Bonds. Westinghouse serves the domestic and international nuclear electric power industry by supplying advanced nuclear plant designs and equipment, fuel and a wide range of other products and services to the owners and operators of nuclear power plants. Please see Note 8 - Equity Method Investments and Variable Interest Entities and Note 10 - Debt and Revolving Lines of Credit for additional information.
The Corporate segment includes corporate management and expenses associated with managing the overall company. These expenses include compensation and benefits of corporate management and staff, legal and professional fees and administrative and general expenses that are not directly associated with the other segments. Our Corporate assets primarily include cash, cash equivalents and short-term investments held by the corporate entities and property and equipment related to the corporate facility and certain information technology assets.
The following tables present certain financial information for our segments (in millions):
A reconciliation of total segment assets to total consolidated assets is as follows (in millions):
The following tables present geographic revenues and long-lived assets (in millions):
Revenues are attributed to geographic regions based on location of the project or the ultimate destination of the product sold. Long-lived assets include all long-term assets, except those specifically excluded under ASC 280, Segment Reporting, such as deferred income taxes and goodwill, which is primarily attributable to domestic reporting entities. See segment tables above as well as Note 9 - Goodwill and Other Intangibles for additional information.
Major Clients
Our clients are principally regulated electric utilities, independent and, U.S. Government agencies, multinational and national oil companies and industrial corporations. Revenues related to U.S. Government agencies or entities owned by the U.S. Government were $1,319.3 million, $1,281.1 million and $1,724.5 million for the fiscal years ended August 31, 2012, 2011 and 2010, respectively, representing approximately 22%, 22% and 25% of our total revenues for fiscal years 2012, 2011 and 2010, respectively. These revenues were recorded primarily in our E&I segment.
Information about our revenues by segment for major clients is as follows (in millions):
U.S. Government agencies or entities are considered to be under common control and are treated as a single client of our E&I segment in the table above.
Export Revenues
For the fiscal years ended August 31, 2012, 2011 and 2010, our international revenues include approximately $311.2 million, $491.0 million and $752.2 million, respectively, of exports from our domestic facilities.
Note 17 - Supplemental Disclosure to Earnings (Losses) Per Common Share
Weighted average shares outstanding for the fiscal years ended August 31, 2012, 2011 and 2010, were as follows (in thousands):
The following table includes weighted-average shares excluded from the calculation of diluted income (loss) per share because they were anti-dilutive (in thousands):
Note 18 - Employee Benefit Plans
The employee benefit and others plans described below cover eligible employees.
Defined Contribution Plans
We sponsor voluntary defined contribution plans for substantially all U.S. employees who are not subject to collective bargaining agreements. Contributions by eligible employees are matched by Company contributions up to statutory levels. Our expense for the plans for the fiscal years ended August 31, 2012, 2011 and 2010, was approximately $36.3 million, $36.4 million and $34.7 million, respectively. Our plans offer employees a number of investment options, including a limited amount for investment in our common stock. Company stock held in the plans is purchased on the open market. At August 31, 2012 and 2011, our plans owned 1,054,169 shares and 1,362,378 shares, respectively, of our common stock. The fair value of the common stock owned by the plans was $44.4 million and $31.8 million at August 31, 2012 and 2011, respectively. In addition to the plans above, we have one foreign sponsored defined contribution plan at August 31, 2012 and had two at August 31, 2011. Our expense for these plans for the fiscal years ended August 31, 2012, 2011 and 2010, was approximately $0.9 million, $1.2 million and $2.5 million, respectively.
Defined Benefit Plans
Certain of our foreign subsidiaries sponsor both contributory and noncontributory defined benefit plans for their employees. These plans have been closed to new entrants, and two out of three plans have also curtailed future retirement benefits for all active members. Benefits payable under these plans will be limited to those benefits accumulated at the time of curtailment adjusted by statutory inflation indices where applicable. Our funding policy is to contribute for current service costs plus minimum special payments when warranted by applicable regulations. Additionally, we may elect to make discretionary contributions.
ASC 715, Compensation - Retirement Benefits, requires us to recognize the funded status of our defined benefit plans directly in our consolidated balance sheets. ASC 715 also requires us to recognize the funded status of defined benefit pension and other postretirement plans as a net asset or liability and to recognize changes in that funded status in the year in which the changes occur through other comprehensive income to the extent those changes are not included in the net periodic cost. Other comprehensive income (loss) reflects gain or loss and prior service costs or credit amounts arising during the period and reclassification adjustments for amounts being recognized as components of net periodic benefit cost during the year, net of tax.
The divestiture activity noted below is the result of deconsolidating the Toronto-based operations upon filing for bankruptcy, as discussed in Note 1 - Description of Business and Summary of Significant Accounting Policies.
Defined Benefit Pension Obligation and Funded Status
Below is a reconciliation of projected benefit obligations, plan assets and the funded status of our defined benefit plans (in thousands):
The funded status of our defined benefit pension plans of $(4.9) million and $(15.8) million at August 31, 2012 and August 31, 2011, respectively, is included in other liabilities shown on our consolidated balance sheets.
Components of Net Periodic Benefit Cost and Changes Recognized in Other Comprehensive Income (Loss)
(Increase) decrease recognized in other comprehensive
income (loss):
Unrecognized net actuarial losses totaling $50.4 million and $51.6 million at August 31, 2012 and August 31, 2011, respectively, are classified in accumulated other comprehensive loss. We estimate that $1.5 million of net actuarial losses will be amortized from accumulated other comprehensive income (loss) into net pension expense during fiscal year 2013.
Assumptions
We record annual amounts relating to our pension plans based on calculations that incorporate various actuarial and other assumptions including discount rates, mortality, assumed rates of return, compensation increases and turnover rates. We review assumptions on an annual basis and make modifications to the assumptions based on current rates and trends when it is appropriate to do so. The effect of modifications to those assumptions is recorded in accumulated other comprehensive income (loss) and amortized to net periodic cost over future periods using the corridor method. We believe that the assumptions utilized in recording our obligations under our plans are reasonable based on our experience and market conditions.
Long-term Rate of Return Assumptions
The expected long-term rate of return on plan assets is developed by blending the expected returns on each class of investment in the plans’ portfolio. The expected returns by asset class are developed considering both past performance and future considerations. Annually, we review and adjust, as required, the long-term rate of return for our pension plans.
Accumulated Benefit Obligation
The combined accumulated benefit obligations of our defined benefit pension plans was $152.8 million and $161.8 million at August 31, 2012 and 2011, respectively.
Plan Assets, Investment Policies and Strategies and Expected Long-Term Rate of Return on Plan Assets
Pension plan asset allocations at August 31, 2012 and 2011, by asset category, are as follows:
The plan trustees are responsible for ensuring that the investments of the plans are managed in a prudent and effective manner, and at a reasonable cost, so that there will be sufficient amounts to meet the benefits as they mature. To this end, the investment objective is to balance return and funding risks.
Each plan has a target asset allocation. On a combined weighted-average basis, target asset allocations are 50% for equity securities, 38% to 50% for debt securities and 0% to 12% for other investments. Asset class targets may vary from the stated allocations depending upon prevailing market conditions. In estimating the expected return on plan assets, the Company considers past performance and future expectations for both the types and expected mix of investments held.
The fair values of our defined benefit pension plan assets by asset category are as follows (in thousands):
(a)
Equity securities are equity funds and equity index funds that hold U.S. and foreign equity securities and mutual funds. These equity securities were previously classified as Level 1 and have been reclassified at August 31, 2010 as Level 2.
(b)
Fixed income securities include government and corporate bonds, annuity contracts and bond funds that hold government and corporate bonds, U.S. and foreign.
The following is a description of the primary valuation methodologies used for our pension assets measured at fair value:
·
Corporate bonds and government bonds: Valued at the closing price reported on the active market on which the individual securities are traded or at quoted prices if in markets that are not active, broker dealer quotations or other methods by which all significant inputs are observable, either directly or indirectly.
·
Equity securities: Valued at the net asset value of shares held at year end
·
Real Estate: Valued at net asset value per unit held at year end.
Contributions and Benefit Payments
We expect to contribute $2.5 million to the plans in fiscal year 2013. The following benefit payments are expected to be paid from the plans (in thousands):
In addition to the pension plans for current employees, we sponsor a defined benefit pension plan for certain former employees of one of our subsidiaries. No new participants have been admitted to the plan in the last fourteen years. The plan’s benefit formulas generally base payments to retired employees upon their length of service. The plan’s assets are invested in fixed income and equity based mutual funds. At August 31, 2012 and 2011, the fair market value of the plan assets was $1.2 million and $1.3 million, respectively, which exceeded the estimated accumulated projected benefit obligation each year. Pension assets included in non-current assets at August 31, 2012 and 2011 were $1.0 million and $1.1 million, respectively.
Multiemployer Plans
We participate in various multiemployer pension plans under union and industry-wide agreements. However, we do not control any of these plans. Generally, these plans provide defined benefits to substantially all employees covered by collective bargaining agreements. Under the Employee Retirement Income Security Act (ERISA), a contributor to a multiemployer plan may be liable, upon termination or withdrawal from a plan, for its proportionate share of a plan’s unfunded vested liability. However, such potential liability, if any, would be determined by the plan’s trustee at the point of termination or withdrawal and not necessarily tied to our level of contributions.
We recognize expense in connection with these plans through hourly rates as labor costs are incurred. We recognized expense during fiscal years 2012, 2011, and 2010 of $87.8 million, $68.6 million, and $63.4 million, respectively. Included in these amounts are contributions to defined contribution pension plans of $13.0 million, $10.5 million, and $12.1 million during fiscal years 2012, 2011, and 2010, respectively. These amounts represent mostly insignificant contributions to many multiemployer pension plans.
We adopted ASU 2011-09, effective August 31, 2012, which requires additional disclosure for all significant multiemployer pension plans. (See Note 1- Description of Business and Summary of Significant Accounting Policies for more information concerning this new provision.)
The following table presents information concerning our participation in significant multiemployer defined benefit pension plans:
NA- information is not available
(a)
As defined by the Pension Protection Act, “PPA”, the zone status indicates the percent the plan is funded for plan years presented.
Red Zone: plans generally funded less than 65%;
Yellow Zone: plans generally funded less than 80%;
Green Zone: at least 80% funded.
The requirement for financial improvement plans, “FIP”, or rehabilitation plans, “RP”, is determined by the funding level or zone of the applicable plan.
(b)
According to the multiemployer pension plans’ latest available Forms 5500, we were listed as contributing more than 5 percent of the total contributions for 2011 and 2010. If we were to exit certain markets or otherwise cease making contributions this fund, we might trigger a substantial withdrawal liability. Any adjustment for withdrawal liability will be recorded when it is probable that a liability exists and can be reasonably estimated.
(c)
According to the multiemployer pension plan’s latest available Forms 5500, we were listed as contributing more than 5 percent of the total contributions for 2011. If we were to exit certain markets or otherwise cease making contributions this fund, we might trigger a substantial withdrawal liability. Any adjustment for withdrawal liability will be recorded when it is probable that a liability exists and can be reasonably estimated.
We also contribute to multiemployer other post-retirement benefit plans that provide medical benefits to active and retired participants. We have made contributions of $76.6 million, $56.3 million, and $55.9 million for 2012, 2011 and 2010, for these additional benefits.
Supplemental Deferred Compensation Plans
We deposited cash of approximately $3.6 million and $1.9 million during the years ended August 31, 2012 and August 31, 2011, respectively, for a limited number of key employees under the terms of our Deferred Compensation Plan. This plan is a non-qualified plan for a select group of our highly compensated employees and is utilized primarily as a vehicle to provide discretionary deferred compensation amounts, subject to multi-year cliff vesting requirements, in connection with the recruitment or retention of key employees. The long-term deferral awards are evidenced by individual agreements with the participating employees and generally require the employee to maintain continuous employment with us or an affiliate for a minimum period of time. Participating employees direct the funds into investment options, and earnings and losses related to the investments are reflected in each participating employee’s account. At August 31, 2012 and August 31, 2011, $11.5 million and $8.2 million, respectively, related to these plans is included in restricted cash, cash equivalents and short-term investments on our balance sheet.
In addition to our contributions to the Deferred Compensation Plan, we deposited cash of $1.0 million as of August 31, 2008 into interest bearing accounts pursuant to employment agreements entered into with certain employees. In accordance with the employment agreements, we paid out the balance of these accounts during fiscal year 2011.
We previously deposited $15.0 million for our Chief Executive Officer into an irrevocable trust (often referred to as a Rabbi Trust) which invests the funds relating to a non-compete agreement. The amount of the initial deposit was previously expensed. In December 2011, we converted the deferred compensation award into a Supplemental Executive Retirement Plan (SERP). At August 31, 2012 and August 31, 2011, $18.7 million and $18.5 million, respectively, related to this SERP are included in restricted cash, cash equivalents and short-term investments as well as other current assets on our balance sheet. The net present value of the SERP, which factors in the estimated holding period and the company’s credit rating, is $17.0 million as of August 31, 2012.
Compensation expense recognized in the years ended August 31, 2012, 2011 and 2010 was $3.0 million, $2.5 million and $3.7 million, respectively, for these plans and agreements.
Note 19 - Related Party Transactions
The following tables summarize the related party transactions with unconsolidated entities included in our consolidated financial statements for the fiscal years ending August 31, 2012, 2011 and 2010 and at August 31, 2012 and 2011 (in thousands):
In February 2011, we contributed $1.5 million to The Clemson University Foundation (Foundation). Clemson University has one of the nation’s premier engineering programs, featuring highly-regarded faculty, accomplished students and world-class facilities. The university is conducting critical research for the nuclear industry and training the next-generation nuclear workforce. James F. Barker, one of our directors, serves on the board of the Foundation and is president of the university. Further, Clemson’s location in South Carolina is near one of Shaw’s fabrication facilities and several nuclear projects Shaw is currently constructing.
At times, we enter into material contractual arrangements with Westinghouse. NEH, a wholly-owned special purpose entity, owns a 20% interest in Westinghouse (see Note 8 - Equity Method Investments and Variable Interest Entities).
Note 20 -Accounting for Claims, Unapproved Change Orders and Incentives on Long-Term Construction Contracts
Claims include amounts in excess of the original contract price (as it may be adjusted for approved change orders) that we seek to collect from our clients for delays, errors in specifications and designs, contract terminations, change orders in dispute or unapproved as to both scope and price or other causes of unanticipated additional costs, and are included in estimated revenues when recovery of the amounts is probable and the costs can be reasonably estimated. Similarly, backcharges and claims against vendors, subcontractors and others are included in our cost estimates as a reduction in total estimated costs when recovery of the amounts is probable and the costs can be reasonably estimated.
Claims and backcharges are recorded at the amount deemed probable of recovery up to the amount of estimated costs, and profit is not recorded until the claim or backcharge is resolved. The recognition of these items may increase gross profit or reduce gross loss on the related projects as compared to the gross profit/gross loss that would have been recognized had no claim revenue been recorded. Claims receivable are included in costs and estimated earnings in excess of billings on uncompleted contracts on the accompanying consolidated balance sheets.
We enter into cost-reimbursable arrangements in which the final outcome or overall estimate at completion may be materially different than the original contract estimated value. We believe the terms of such contracts indicate costs are to be reimbursed by our clients. However, we typically process change notice requests to document agreement as to scope and price and thereby mitigate potential exposure relative to costs incurred in excess of agreed upon contract value. Due to the nature of these items, we have not classified and disclosed costs incurred in excess of agreed upon contract value as unapproved change orders.
Unapproved Change Orders and Claims
The table below (in millions) summarizes information related to our significant unapproved change orders and claims from project owners that we have recorded on a total project basis at August 31, 2012, and 2011, and excludes all unrecorded amounts and non-significant unapproved change orders and claims.
In the table above, the difference between the amounts included in project estimates-at-completion and the amounts recorded in revenues (or reductions to contract costs) on a total project basis represents the forecasted costs for work which has not yet been incurred (i.e. the remaining percentage-of-completion revenue to be recognized on the related project). The amounts presented in this table include, but are not limited to, those matters currently in litigation or arbitration for which we have recorded revenue. Additional discussion regarding our legal proceedings relating to unapproved change orders and claims in litigation or arbitration is provided in our Legal Proceedings in Note 15 - Contingencies and Commitments and Note 8 - Equity Method Investments and Variable Interest Entities.
The majority of the amounts included in the project estimates-at-completion in the table above relate to engineering, equipment supply, material fabrication and construction cost estimates and costs from regulatory required design changes and delays in our clients’ obtaining combined operating licenses (COLs) for two nuclear power reactors in Georgia. Under the provisions of this contract, we have entered into a formal dispute resolution process on certain claims associated with backfill activities, shield building, large structural modules and COL issuance delays included within construction costs at the site. As provided in the contract, we have received a partial funding payment from our customer of $29.0 million related to the backfill costs and $96 million related to the COL issuance delays while the dispute resolution process continues. These amounts are included in billings in excess of costs and estimated earnings on uncompleted contracts. Should we not prevail in this dispute, we may be required to repay a portion or all of this amount. We continue to discuss with our client the impact of the remaining elements of the unapproved change orders associated with this project. Should the matters in Georgia proceed to formal dispute resolution, our contract calls for the clients to co-fund our costs until the matters are resolved.
In connection with our consortium agreement for the design and construction of two domestic nuclear power reactors in South Carolina, we reached an agreement with the client to settle certain change orders resulting from regulatory required design changes and COL issuance delays on the project. As a result of this agreement these costs have been excluded from the total of unapproved change orders presented above. Additionally, we successfully negotiated a contract amendment related to $24.3 million of previously unapproved change orders on a new build coal-fired project that is nearing completion.
We believe the amounts included in the table above related to all of our AP1000 nuclear and other projects are recoverable from our clients under existing provisions of our contractual arrangements. The nuclear power projects have a long construction duration and the cost estimates cover costs that will not be incurred for several years. It is expected that the cost estimates resulting from the design changes and COL delays will continue to be refined as more information becomes available. It is possible that these commercial matters may not be resolved in the near term.
Under the terms of two consortium agreements with WEC, which is our EPC partner, to design and construct the four nuclear power reactors, we perform much of the pipe, steel and modular fabrication and assembly and certain engineering and construction related activities on the domestic AP1000 nuclear projects, with WEC being responsible for the nuclear island engineering and equipment supply. During the quarter ended February 29, 2012, we signed a memorandum of understanding with WEC (“the WEC MOU”) wherein WEC has the obligation, in addition to obligations under the original consortium agreement, to reimburse us for material and fabrication costs associated with design changes to the extent these costs are not recovered from our clients. Accordingly, amounts which may be recovered under the WEC MOU have been excluded from the unapproved change orders and claims presented in the table above, even when we are seeking recovery from the client. These consortium agreements, as supplemented by the WEC MOU, provide a contractual mechanism for cost sharing to the extent project costs exceed certain thresholds and are not recovered from our clients. Our costs, including construction related expenses, resulting from the design changes and delays in issuance of the COLs would be considered within this cost sharing mechanism. As of August 31, 2012, we estimate that our recovery under these consortium agreements and the related WEC MOU is approximately $292.9 million, which has been excluded from the presentation of unapproved change orders in the above table. The amounts recoverable from WEC will decline to the extent we recover the costs from our clients.
In the ordinary course of business, the Company enters into various agreements and guarantees to clients. While in most cases these performance risks are offset by similar guarantees by our suppliers, there are instances where the full extent of the exposure is not eliminated.
In general, if we collect amounts differing from the amounts that we have recorded as unapproved change orders/claims receivable on any of our projects, that difference will be reflected in the estimate at completion (EAC) used in determining contract profit or loss. Timing of claim collections is uncertain and depends on such items as regulatory approvals, negotiated settlements, trial date scheduling and other dispute resolution processes pursuant to the contracts. As a result, we may not collect our unapproved change orders/claims receivable within the next twelve months. Should we not prevail in these matters, the outcome could have an adverse effect on our statements of operations and statement of cash flows.
Project Incentives
Some of our contracts contain performance incentive and award fee arrangements (collectively referred to as incentive fees) that provide for increasing or decreasing our revenue based upon the achievement of some measure of contract performance in relation to agreed upon targets. Incentive fees can occur in all segments, but the majority of contracts containing project incentives are in our Plant Services and E&I segments. Therefore, the gross profit in those segments may be significantly influenced by these project incentives.
We include in our EAC revenue an estimate of the probable amounts of the incentive fees we expect to earn if we achieve the agreed-upon criteria. We bill incentive fees based on the terms and conditions of the individual contracts which may allow billing over the performance period of the contract or only after the target criterion have been achieved. We generally recognize incentive fee revenue using the percentage of completion method of accounting. As the contract progresses and more information becomes available, the estimate of the anticipated incentive fee that will be earned is revised as necessary. Incentive fees which have been recognized but not billed are included in costs and estimated earnings in excess of billings on uncompleted contracts in the accompanying consolidated balance sheets. Incentive fees that have been billed but for which we have not recognized as revenue are included in the advanced billings and billings in excess of costs and estimated earnings on uncompleted contracts in the accompanying consolidated balance sheets.
At August 31, 2012, and August 31, 2011, our project EACs included approximately $78.2 million and $109.0 million, respectively, related to estimates of amounts we expect to earn on incentive fee arrangement. We have recorded $48.0 million and $64.8 million as of August 31, 2012, and August 31, 2011, respectively, of these estimated amounts in revenues for the related contracts. If we do not achieve the criteria at the amounts we have estimated, project revenues and profit may be materially reduced.
Contract Losses
When the current estimates of total contract revenue and contract cost indicate a loss, we record a provision for the entire loss on the contract in the period in which the loss became evident. The provision for contract losses was $15.0 million and $36.5 million at August 31, 2012 and 2011, respectively, and is included in billings in excess of costs and estimated earnings on uncompleted contracts on the accompanying balance sheets.
Note 21 - Supplemental Cash Flow Information
Supplemental cash flow information for the years ended August 31, 2012, 2011 and 2010 is presented below (in thousands):
Note 22 - Quarterly Financial Data (Unaudited)
Summarized quarterly financial data for the years ended August 31, 2012 and 2011 are as follows (in thousands, except per share data):
Toshiba Nuclear Energy Holdings (US), Inc. and
Toshiba Nuclear Energy Holdings (UK) Ltd.
Combined Financial Statements
Fiscal Years Ended March 31, 2012, 2011 and 2010
Contents
Report of Independent Registered Public Accounting Firm
The Board of Directors and Stockholders
Toshiba Nuclear Energy Holdings (US), Inc.
Toshiba Nuclear Energy Holdings (UK) Ltd.
We have audited the accompanying combined balance sheets of Toshiba Nuclear Energy Holdings (US), Inc. and Toshiba Nuclear Energy Holdings (UK) Ltd. (the Company) as of March 31, 2012 and 2011, and the related combined statements of operations and comprehensive income, stockholders’ equity, and cash flows for each of the three years in the period ended March 31, 2012. These financial statements are the responsibility of the Company’s management. Our responsibility is to express an opinion on these financial statements based on our audits.
We conducted our audits in accordance with the standards of the Public Company Accounting Oversight Board (United States). Those standards require that we plan and perform the audit to obtain reasonable assurance about whether the financial statements are free of material misstatement. We were not engaged to perform an audit of the Company’s internal control over financial reporting. Our audits included consideration of internal control over financial reporting as a basis for designing audit procedures that are appropriate in the circumstances, but not for the purpose of expressing an opinion on the effectiveness of the Company’s internal control over financial reporting. Accordingly, we express no such opinion. An audit also includes examining, on a test basis, evidence supporting the amounts and disclosures in the financial statements, assessing the accounting principles used and significant estimates made by management, and evaluating the overall financial statement presentation. We believe that our audits provide a reasonable basis for our opinion.
In our opinion, the financial statements referred to above present fairly, in all material respects, the combined financial position of Toshiba Nuclear Energy Holdings (US), Inc. and Toshiba Nuclear Energy Holdings (UK) Ltd. at March 31, 2012 and 2011, and the combined results of their operations and their cash flows for each of the three years in the period ended March 31, 2012 in conformity with U.S. generally accepted accounting principles.
/s/ Ernst & Young LLP
Pittsburgh, Pennsylvania
June 12, 2012
Toshiba Nuclear Energy Holdings (US), Inc. and Toshiba Nuclear Energy Holdings (UK) Ltd.
Combined Balance Sheets
See notes to combined financial statements.
Toshiba Nuclear Energy Holdings (US), Inc. and Toshiba Nuclear Energy Holdings (UK) Ltd.
Combined Statements of Operations and Comprehensive Income
See notes to combined financial statements.
Toshiba Nuclear Energy Holdings (US), Inc. and Toshiba Nuclear Energy Holdings (UK) Ltd.
Combined Statements of Stockholders’ Equity
See notes to combined financial statements.
Toshiba Nuclear Energy Holdings (US), Inc. and Toshiba Nuclear Energy Holdings (UK) Ltd.
Combined Statements of Cash Flows
See notes to combined financial statements.
Toshiba Nuclear Energy Holdings (US), Inc. and
Toshiba Nuclear Energy Holdings (UK) Ltd.
Notes to Combined Financial Statements
Fiscal Years Ended March 31, 2012, 2011 and 2010
1. Description of Business, Basis of Financial Statement Presentation and Significant Accounting Policies
Description of Business
The accompanying combined financial statements include the accounts of the holding companies Toshiba Nuclear Energy Holdings (US), Inc. (TNEH-US) and subsidiaries and Toshiba Nuclear Energy Holdings (UK) Ltd. (TNEH-UK) and subsidiaries (collectively, the Company). The Company operates as Westinghouse, serving the domestic and international nuclear electric power industry by supplying advanced nuclear plant designs and equipment, fuel and a wide range of other products and services to the owners and operators of commercial nuclear power plants.
Toshiba Corporation (Toshiba) has a 67% controlling ownership in the Company. The remaining ownership is held by the Shaw Group Inc. (Shaw), 20%, National Atomic Company Kazatomprom (Kazatomprom), 10%, and IHI Corporation (IHI), 3%. Toshiba, Shaw, Kazatomprom and IHI have entered into Shareholders Agreements for TNEH-US (U.S. Shareholders Agreement) and TNEH-UK (UK Shareholders Agreement), which define the owners’ rights and obligations with respect to capitalization, management, control, dividends, shareholdings and certain other matters relating to TNEH-US and TNEH-UK. On September 6, 2011, Shaw announced its intentions to put back their shares of the Company’s stock to Toshiba by exercising put options which were received as part of their acquisition of 20% of the Company. The exercise of the Japanese yen-denominated put options prior to October 2012 requires the consent of the trustee acting on behalf of the bond holders of the yen-denominated bonds that were issued by Shaw in connection with their funding of the acquisition of the Company’s shares. On December 8, 2011, Shaw announced that they did not receive approval to put back their shares, and as such, exercise of the options will not occur before October 6, 2012.
Basis of Financial Statement Presentation and Preparation
TNEH-US and TNEH-UK are under common ownership, control and management, and therefore, their accounts have been combined. The Company operates on a fiscal year ended March 31.
The accompanying combined financial statements include the assets and liabilities of the Company, its wholly owned subsidiaries, jointly owned subsidiaries over which it exercises control, and entities for which it has been determined to be the primary beneficiary as of March 31, 2012 and 2011, and the results of operations and of cash flows for the fiscal years ended March 31, 2012, 2011 and 2010. Noncontrolling interest amounts relating to the Company’s less-than-wholly owned consolidated subsidiaries are included within the “Net income attributable to noncontrolling interests” caption in the combined statements of operations and comprehensive income and within the “Noncontrolling interests” caption in the combined balance sheets. Investments in entities in which the Company has the ability to exercise significant influence, but does not exercise control and is not the primary beneficiary are accounted for using the equity method and are included in “Investment in unconsolidated subsidiaries” in the combined balance sheets. Unless otherwise indicated, all dollar amounts in these combined financial statements and notes thereto are presented in thousands. All significant intercompany transactions and balances have been eliminated in combination. Certain amounts for prior periods have been reclassified to conform to the presentation for the fiscal year ended March 31, 2012.
Toshiba Nuclear Energy Holdings (US), Inc. and
Toshiba Nuclear Energy Holdings (UK) Ltd.
Notes to Combined Financial Statements (continued)
1. Description of Business, Basis of Financial Statement Presentation and Significant Accounting Policies (continued)
Significant Accounting Policies
Use of estimates - The preparation of financial statements in conformity with U.S. generally accepted accounting principles (GAAP) requires management to make estimates and assumptions that affect the reported amounts of assets and liabilities, the reported amounts of contingent assets and liabilities at the date of the financial statements and the reported amounts of revenues and expenses during the reporting period. Actual results could differ from those estimates.
Revenue recognition - The Company’s products are generally sold based upon purchase orders or contracts with customers that do not include right of return provisions or other significant post delivery obligations, beyond warranty obligations. Products are manufactured by a standard production process, even if manufactured to customers’ specifications. Revenue is recognized from product sales when title passes to the customer, the customer assumes risks and rewards of ownership, and collectability is reasonably assured.
Revenue from contracts to provide construction, engineering, design or other services is reported on the percentage-of-completion method of accounting. In almost all instances, the Company bases its estimate of the degree of completion of the contract by reviewing the relationship of costs incurred to date to the expected total costs that will be incurred on the project. In the case of modifications to the contract, revenue is recognized when the change order has been agreed to by the customer and approval is probable, but generally no margin is recognized until a final executed change order is obtained.
Estimated contract earnings are reviewed and revised periodically as the work progresses, and the cumulative effect of any change in estimate is recognized in the period in which the change is identified. Estimated losses are charged against earnings in the period such losses are identified. The Company recognizes revenue arising from contract claims either as income or as an offset against a potential loss only when the amount of the claim can be estimated reliably, realization is probable and there is a legal basis of the claim. See Note 20 for additional information on claims and change orders.
Revenue for sales of multiple deliverables (which could be different combinations of the Company’s products and services in one or a series of related contracts) is recognized based on the relative fair value of the deliverables in accordance with revenue accounting. Relative fair value is generally determined based on sales of similar products and services in stand-alone contracts.
Uncertainties inherent in the performance of contracts include labor availability and productivity, material costs, change orders for scope and pricing, and customer acceptance issues. The reliability of these cost estimates is critical to the Company’s revenue recognition as a significant change in the estimates can cause the Company’s revenue and related margins to change significantly from the amounts estimated in the early stages of a project.
Toshiba Nuclear Energy Holdings (US), Inc. and
Toshiba Nuclear Energy Holdings (UK) Ltd.
Notes to Combined Financial Statements (continued)
1. Description of Business, Basis of Financial Statement Presentation and Significant Accounting Policies (continued)
Costs and estimated earnings in excess of billings on uncompleted contracts (an asset) represent costs and estimated profit thereon in excess of related contract billings on contracts that are accounted for under the percentage-of-completion method and in progress at the balance sheet date. Billings in excess of costs and estimated earnings on uncompleted contracts (a liability) represent billings on contracts in excess of related contract costs and estimated profit thereon at the balance sheet date. Billings are generally based on the terms for contracts accounted for under the percentage-of-completion method and progress of the contracts and may have no direct relationship to the actual costs incurred at a given point in time.
Under certain contracts to supply nuclear fuel to operating plants, the Company may receive advanced payments ahead of shipments or it may ship and defer billing for a short period of time. Revenue is generally recognized when the product is shipped and risk of loss is transferred to the customer for these contracts. Billings prior to revenue recognition for these contracts are reported as amounts billed in excess of revenue in the accompanying combined balance sheets. Deferred billings after product has shipped are reported as amounts earned in excess of billings in the accompanying combined balance sheets.
Shipping and handling costs - The Company expenses shipping and handling costs as incurred. These costs are included in cost of goods sold.
Research and development expenditures - Research and development expenditures on projects not specifically recoverable directly from customers are charged to operations in the year in which incurred. The Company recorded $90,424, $75,962 and $52,826 of research and development costs, net of reimbursements discussed below, which are included in marketing, administrative and general expenses in the accompanying combined statements of operations and comprehensive income for the fiscal years ended March 31, 2012, 2011 and 2010, respectively.
The NuStart Energy Development, LLC (NuStart) was formed in 2004 with the purpose of obtaining a Construction and Operating License (COL) from the U.S. Nuclear Regulatory Commission (NRC) for an advanced nuclear power plant and to complete the design engineering for two selected reactor technologies. The NuStart consortium participants consist of ten members and two reactor vendors, one of which is Westinghouse for its AP1000 reactor design. Under the NuStart consortium arrangement, work is performed and the Company receives funding through a Direct Cooperative Agreement with the Department of Energy (DOE) for research and development costs, design finalization costs and costs associated with COL activities. The funding from NuStart ended on March 31, 2011. The Company recorded $0, $68,748 and $93,891 for the fiscal years ended March 31, 2012, 2011 and 2010, respectively, of this funding as a reduction of indirect product costs within the marketing, administrative and general expenses in the accompanying combined statements of operations and comprehensive income.
Environmental costs - Environmental expenditures that do not extend the service lives of assets or otherwise benefit future years are expensed. Environmental expenditures related to operations that generate current or future revenues are expensed or capitalized, as appropriate. The Company records liabilities when environmental assessments or remedial efforts are probable and the costs can be reasonably estimated. Such estimates are adjusted, if necessary, as new remediation requirements are defined or as additional information becomes available.
Toshiba Nuclear Energy Holdings (US), Inc. and
Toshiba Nuclear Energy Holdings (UK) Ltd.
Notes to Combined Financial Statements (continued)
1. Description of Business, Basis of Financial Statement Presentation and Significant Accounting Policies (continued)
Income taxes - TNEH-US and its U.S.-based subsidiaries file a consolidated federal income tax return. The Company files other state and foreign jurisdictional returns as required. Deferred income taxes have been provided for temporary differences between the financial reporting basis and tax carrying amounts of assets and liabilities. These differences create taxable or tax-deductible amounts for future periods. Valuation allowances are recorded against deferred tax assets in situations where significant uncertainty exists relative to sufficient future taxable income in certain jurisdictions to use the benefits associated with the deferred tax assets. At March 31, 2012 and 2011, the Company recorded $35,068 and $32,029, respectively, as valuation reserves, which are included as a reduction to deferred tax assets in the accompanying combined balance sheets. See Note 12 for additional information.
Translation of foreign currencies - The local currencies of the Company’s foreign operations have been determined to be their functional currencies. Assets and liabilities of foreign operations are translated into U.S. dollars at exchange rates at the balance sheet date. Translation adjustments resulting from fluctuations in exchange rates are included as a separate component of accumulated other comprehensive income. Revenue and expense accounts of these operations are translated at average exchange rates prevailing during the period. Gains and losses arising from transactions denominated in currencies other than the functional currency are included in the results of operations of the period in which they occur. Deferred taxes are not provided on translation gains and losses because the Company expects earnings of all foreign operations to be permanently reinvested.
Fair value accounting - Fair value is defined as the price that would be received to sell an asset or paid to transfer a liability in an orderly transaction between market participants at the measurement date (i.e., an exit price). The fair value of financial instruments classified as cash and cash equivalents, receivables, related-party receivables, accounts payable, related-party payables, and note due to related party approximates carrying value due to the short-term nature or the relative liquidity of the instrument.
Fair value accounting defines a hierarchy that prioritizes the inputs to valuation techniques used to measure fair value. The hierarchy gives the highest priority to unadjusted quoted prices in active markets for identical assets and liabilities (Level 1) and the lowest priority to unobservable inputs (Level 3). The three levels of the hierarchy under fair value accounting are described below:
•
Level 1 - Unadjusted quoted prices in active markets that are accessible to the reporting entity at the measurement date for identical assets and liabilities.
•
Level 2 - Inputs other than quoted prices in active markets for identical assets and liabilities that are observable either directly or indirectly for substantially the full term of the asset or liability. Level 2 inputs include the following:
-
Quoted prices for similar assets and liabilities in active markets
-
Quoted prices for identical or similar assets or liabilities in markets that are not active
Toshiba Nuclear Energy Holdings (US), Inc. and
Toshiba Nuclear Energy Holdings (UK) Ltd.
Notes to Combined Financial Statements (continued)
1. Description of Business, Basis of Financial Statement Presentation and Significant Accounting Policies (continued)
-
Observable inputs other than quoted prices that are used in the valuation of the asset or liabilities (e.g., interest rate and yield curve quotes at commonly quoted intervals)
-
Inputs that are derived principally from or corroborated by observable market data by correlation or other means
•
Level 3 - Unobservable inputs for the asset or liability (i.e., supported by little or no market activity. Level 3 inputs include management’s own assumption about the assumptions that market participants would use in pricing the asset or liability (including assumptions about risk).
The level in the fair value hierarchy within which the fair value measurement is classified is determined based on the lowest level input that is significant to the fair value measure in its entirety.
Cash and cash equivalents - For the purposes of the combined financial statements, all highly liquid debt instruments with original maturities of three months or less are considered to be cash equivalents. Cash and cash equivalents may at times exceed federally insured amounts for United States bank accounts.
Receivables - Credit is regularly extended to customers for purchases made in the ordinary course of business based upon the Company’s assessment of creditworthiness. Collection of customer receivables generally occurs within 90 days from billing; billing generally occurs according to terms provided in contractual agreements. A valuation allowance is provided for those accounts for which collection is estimated as doubtful; uncollectible accounts are written off and charged against the allowance. Increases in the allowance are charged to marketing, general and administrative expenses in the accompanying combined statements of operations and comprehensive income. Accounts are judged to be delinquent principally based on contractual terms. In estimating the allowance, management considers, among other things, how recently and how frequently payments have been received and the financial position of the customer.
During the year ended March 31, 2012, the Company entered into an arrangement to sell a certain receivable to a financial institution. The arrangement resulted in approximately $53,528 of receivables being sold during the year ended March 31, 2012. The sale resulted in the de-recognition of the receivable from the accompanying combined balance sheet. The Company maintained servicing rights on the receivable, which was collected and remitted to the financial institution in April 2012. The impact of this transaction on the combined statement of operations was not material.
Inventories - Inventories are stated at the lower of cost or market. Cost is determined on a first-in, first-out (FIFO) or average cost method depending on the nature of the inventory. Inventories are reported net of any related reserves. The elements of cost included in inventories are direct labor, direct material and certain overhead, including depreciation.
Toshiba Nuclear Energy Holdings (US), Inc. and
Toshiba Nuclear Energy Holdings (UK) Ltd.
Notes to Combined Financial Statements (continued)
1. Description of Business, Basis of Financial Statement Presentation and Significant Accounting Policies (continued)
Uranium assets - Uranium, held in various forms, is used in the manufacturing operations of the business. The Company maintains uranium working stock in order to ensure efficient manufacturing processes. The Company classifies all uranium working stock as a noncurrent asset, and the majority of this is denominated in Great Britain Pounds. The Company also holds an amount of surplus uranium inventory, for which it periodically enters into transactions to sell uranium when appropriate opportunities arise. Uranium inventory is stated at the lower of cost or market. See Note 8 for additional information.
Pre-contract costs - The Company capitalized certain prepayments on long lead material items relative to AP1000 projects not yet contracted. Recovery of these costs through future contract revenues or other disposition is probable. At March 31, 2012 and 2011, $77,911 and $91,308, respectively, of such costs were included in costs and estimated earnings in excess of billings on uncompleted contracts in the accompanying combined balance sheets.
Significant pre-contract costs include reservation fees paid for forging slots to be used for future AP1000 projects and payments to fabricators for certain long lead material equipment. The Company will assign these reservation fees and payments on long lead material equipment to project costs as they are assigned to new projects. Of the capitalized pre-contract costs noted above, $21,973 and $30,814 represent reservation fees, and $47,728 and $26,575 represent payments on long lead material equipment as of March 31, 2012 and 2011, respectively.
The Company incurred approximately $29,228 of costs associated with AP1000 licensing that were capitalized as pre-contract costs in anticipation of award of a specific AP1000 project deemed probable in the United Kingdom. During March 2012, it was determined that these costs can no longer be capitalized as pre-contract costs due to current year market events involving a specific contract. The Company has a contractual right to recover approximately $13,648 of the $29,228 costs incurred from a third party involved in the United Kingdom AP1000 project. The amount due to be reimbursed of $13,648 was reclassified from pre-contract costs to contract receivable within other current assets in the accompanying combined balance sheets. The remaining deferred costs associated with AP1000 licensing in the United Kingdom were written off to marketing, administrative and general expenses in the accompanying combined statements of operations and comprehensive income for the fiscal year ended March 31, 2012.
Property, plant and equipment - Additions and improvements to property, plant and equipment are recorded at cost (including decommissioning costs where appropriate). Construction in progress is recorded at cost and is not depreciated until placed in service.
Depreciation is calculated principally on a straight-line basis over the estimated useful lives of the assets. The estimated lives used for depreciation purposes are:
Leasehold improvements are amortized over the shorter of remaining lease term or the asset useful life.
Toshiba Nuclear Energy Holdings (US), Inc. and
Toshiba Nuclear Energy Holdings (UK) Ltd.
Notes to Combined Financial Statements (continued)
1. Description of Business, Basis of Financial Statement Presentation and Significant Accounting Policies (continued)
Assets held under capital leases are capitalized in the accompanying combined balance sheets and are amortized to depreciation expense over their useful lives. Interest expense related to the capital lease obligations is charged to the accompanying combined statements of operations and comprehensive income over the period of the lease. Rentals under operating leases are charged on a straight-line basis over the lease term, although the payments may not be made on such a basis.
Maintenance and repairs are charged to expense as incurred; renewals and betterments are capitalized. When property, plant and equipment are sold or otherwise disposed of, the asset and related accumulated depreciation and amortization accounts are relieved and any resulting gain or loss is reflected in earnings.
The Company recognizes asset retirement obligations (ARO), in accordance with asset retirement and environmental obligations accounting, for decommissioning and other legal obligations associated with the retirement of long-lived assets that result from the acquisition, construction, development and/or normal use of the asset and for conditional ARO in which the timing or method of settlement are conditional on a future event that may or may not be within the control of the Company. The Company recognizes the fair value of a liability for an ARO in the period in which it is incurred, if a reasonable estimate of fair value can be made. The fair value of the liability is added to the carrying amount of the associated asset. This additional carrying amount is then depreciated over the estimated useful life of the asset. See Note 10 for additional information.
The Company capitalizes certain costs incurred in connection with developing or obtaining internal use software. During the software application development state, capitalized costs include the cost of the software, external consulting costs and internal payroll costs for employees who are directly associated with a software project. Similar costs related to software upgrades and enhancements are capitalized if they result in added functionality which enables the software to perform tasks it previously was incapable of performing. Software maintenance, data conversion and training costs are expensed in the period in which they are incurred. The Company amortizes capitalized software costs on straight-line basis over the expected useful lives of the software, ranging from 3 to 10 years and commencing upon operational use.
Goodwill and other intangible assets - Goodwill and intangible assets with indefinite lives are required to be tested annually for impairment, with more frequent tests required if indications of impairment exist. The Company conducts its tests of goodwill impairment on an annual basis on October 1 and on an interim basis as necessary using a two-step process. Step one is to evaluate the fair value of the reporting units and compare that to their respective carrying values. If the carrying value exceeds the fair value, the reporting unit is determined to have failed step one and must proceed to step two. Step two requires the Company to determine the implied value of the reporting unit goodwill using the same manner used during business combination accounting. If the implied value of goodwill is less than the carrying value, the reporting unit’s goodwill is deemed to be impaired, and the goodwill must be written down to implied value. The Company primarily uses a discounted cash flow analysis to determine fair value. Key assumptions in the determination of fair value include the use of an appropriate discount rate, estimated future cash flows and estimated run rates of operation, maintenance and general and administrative costs. In estimating cash flows, the Company incorporates expected growth rates, regulatory stability and ability to renew contracts, as well as other factors into its revenue and expense forecasts.
Toshiba Nuclear Energy Holdings (US), Inc. and
Toshiba Nuclear Energy Holdings (UK) Ltd.
Notes to Combined Financial Statements (continued)
1. Description of Business, Basis of Financial Statement Presentation and Significant Accounting Policies (continued)
Other intangible assets with definite lives are recorded at fair market value at the time of acquisition and are amortized over their estimated useful lives. The method of amortization reflects the expected realization pattern of the economic benefits relevant to the intangible assets, or if the Company is unable to determine the expected realization pattern reliably, they are amortized using the straight-line method. See Notes 3 and 7 for additional information.
Impairment of long-lived assets and definite-lived intangible assets - The carrying values of long-lived assets, which include property, plant and equipment, and definite-lived intangible assets, are evaluated periodically in relation to the operating performance and future undiscounted cash flows of the underlying assets. Adjustments are made if the sum of expected future net cash flows is less than book value, and if required, such adjustments would be measured based on discounted cash flows. See Note 7 for additional information.
Pensions and postretirement benefits - The Company provides postretirement benefits in the form of pensions, defined medical, dental and life insurance for eligible retirees and dependents for the benefit of the majority of employees.
The contributions to each of the funded pension plans are based on independent actuarial valuations designed to secure or partially secure the benefits as defined by local country rules. The plans are funded by contributions from the Company, and for certain plans partly from the contributions of employees, to separately administered funds. Actuarially calculated costs are charged in the accompanying combined statements of operations and comprehensive income so as to spread the cost of pensions over the employees’ working lives. The normal cost is attributed to years of employment using a projected unit credit method. Variations in projected net pension liability from the actuarial assumptions, which are identified as a result of actuarial valuations, are amortized over the average expected remaining working lives of employees. The disclosures for the Company’s pension plans are detailed in Note 11.
Derivative instruments - The Company enters into derivative contracts to minimize the risk to cash flows from exposure to fluctuations in foreign exchange rates. The Company recognizes all derivatives on the combined balance sheets at fair value. Derivative contracts entered into by the Company may be designated as either a hedge of a forecasted transaction or future cash flows (cash flow hedge) if certain conditions are met. For all hedge contracts, the Company prepares formal documentation of the hedge in accordance with derivatives and hedging accounting. In addition, at inception and every three months, the Company formally assesses whether the hedge contract is highly effective in offsetting changes in cash flows or fair values of hedged items.
The Company documents hedging activity by transaction type and risk management strategy. The effective portion of the derivative instruments’ gains or losses due to change in fair value, associated with the cash flow hedges, are recorded as a component of accumulated other comprehensive (loss) income (OCI) and are reclassified into earnings when the hedged items settle. Any ineffective portion of a derivative instrument’s change in fair value is recognized in earnings immediately. Cash inflows and outflows related to derivative instruments are a component of operating cash flows in the accompanying combined statements of cash flows. Recognized gains or losses on hedged derivative instruments are included in foreign currency gains and losses in the accompanying combined statements of operations and comprehensive income. A nonhedged derivative’s change in fair value is recognized in earnings. The Company does not enter into derivative instruments or hedging activities for speculative or trading purposes. See Note 4 for additional information.
Toshiba Nuclear Energy Holdings (US), Inc. and
Toshiba Nuclear Energy Holdings (UK) Ltd.
Notes to Combined Financial Statements (continued)
1. Description of Business, Basis of Financial Statement Presentation and Significant Accounting Policies (continued)
Concentrations of credit and other risks - Financial instruments that potentially subject the Company to concentrations of credit risk are primarily cash equivalents and trade receivables. It is the Company’s practice to place its cash equivalents in high-quality securities with various investment institutions. The Company derives the majority of its revenue from sales and services, including engineering and construction, to the energy industry. For the fiscal year ended March 31, 2012, there was no customer who individually accounted for greater than 10% of total revenue. Trade receivables are generated from a broad and diverse group of customers. At March 31, 2012, there was one customer who accounted for more than 10% of receivables reported in the accompanying combined balance sheets, equaling 15.7%. The Company maintains an allowance for losses based upon the expected collectability of all trade accounts receivable.
The Company may have limited exposure to credit-related losses in the event of nonperformance by counterparties to derivative instruments. The Company enters into derivative instruments with a diverse group of financial institutions, which are selected based on their credit ratings, profitability, balance sheets, and a capacity for timely payment of financial commitments. Agreements with certain counterparties contain master netting arrangements that offset our exposure with that counterparty. The Company continually monitors its positions and the credit ratings of its counterparties. As a result of these considerations, the Company considers the impact of risk of counterparty default to be immaterial.
Approximately 6.8% of the Company’s workforce is union-represented subject to collective bargaining agreements as of March 31, 2012. The individual unions may limit our flexibility in dealing with our workforce. Any work stoppage or instability within the workforce could delay the production or development of our products. This could strain relationships with customers and cause a loss of revenues, which would adversely affect our operations.
Subsequent events - The Company has evaluated subsequent events through June 12, 2012, the date the financial statements were available to be issued. The Company has determined any subsequent events that would require disclosure in or adjustment to the accompanying combined financial statements have been properly recognized or disclosed.
Recently adopted accounting pronouncements - The following new accounting standards have been adopted by the Company during the fiscal year ended March 31, 2012:
In October 2009, the FASB issued changes to revenue recognition for multiple-deliverable arrangements. This accounting guidance provides another alternative for determining the selling price of deliverables and will allow companies to allocate arrangement consideration in multiple-deliverable arrangements in a manner that better reflects the transaction’s economics and could result in earlier revenue recognition. The Company adopted this guidance effective April 1, 2011. The adoption of this accounting guidance had no impact on the accompanying combined financial statements.
Toshiba Nuclear Energy Holdings (US), Inc. and
Toshiba Nuclear Energy Holdings (UK) Ltd.
Notes to Combined Financial Statements (continued)
1. Description of Business, Basis of Financial Statement Presentation and Significant Accounting Policies (continued)
Recently issued accounting pronouncements - The following new accounting standards have been issued, but have not yet been adopted by the Company, as of March 31, 2012:
In May 2011, the FASB issued guidance to amend the fair value measurement and disclosure requirements. The amendments change the wording used to describe many of the requirements in U.S. GAAP for measuring fair value and for disclosing information about fair value measurements to ensure consistency between U.S. GAAP and International Financial Reporting Standards. This guidance is effective for the Company beginning April 1, 2012. The Company does not expect the adoption of this guidance will have an impact on its combined financial statements.
In June 2011, the FASB issued guidance on the presentation of comprehensive income in financial statements. The guidance eliminates the option to report other comprehensive income and its components in a statement of changes in stockholders’ equity and requires an entity to present the total of comprehensive income, the components of net income and the components of other comprehensive income either in a single continuous statement or in two separate but consecutive statements. This guidance is effective for the Company beginning April 1, 2012. The Company does not expect the adoption of this guidance will have an impact on its combined financial statements.
In September 2011, the FASB issued guidance on testing goodwill for impairment. This guidance permits an entity to first perform a qualitative assessment to determine whether it is more likely than not that the fair value of a reporting unit is less than its carrying amount. If it is concluded that this is the case, it is necessary to perform the currently prescribed two-step goodwill impairment test. Otherwise, the two-step goodwill impairment test is not required. This guidance is effective for the Company beginning April 1, 2012. The Company does not expect the adoption of this guidance will have an impact on its combined financial statements.
In December 2011, the FASB issued guidance on disclosures about offsetting assets and liabilities. This guidance requires an entity to disclose both gross information and net information about both instruments and transactions eligible for offset in the statement of financial position and instruments and transactions subject to an agreement similar to a master netting arrangement. This scope would include derivatives, sale and repurchase agreements and reverse sale and repurchase agreements, and securities borrowing and securities lending arrangements. This guidance is effective for the Company beginning April 1, 2014. The Company does not expect the adoption of this guidance will have an impact on its combined financial statements.
2. Acquisitions
On March 29, 2010, the Company entered into a long-term lease with the Nuclear Decommissioning Authority (NDA) for the Springfields Nuclear Fuel manufacturing site in Lancashire, England, effective April 1, 2010. In conjunction with this lease, the Company acquired Springfields Fuels Limited (SFL), which will operate the site. The total transaction value at the time of the sale was $22,482, consisting of cash paid to the seller. The Company incurred $2,594 of acquisition costs during the fiscal year ended March 31, 2011. These costs are included within marketing, administrative and general expenses in the accompanying combined statements of operations and comprehensive income. The results of SFL have been included in the Company’s combined results from April 1, 2010 onward.
Toshiba Nuclear Energy Holdings (US), Inc. and
Toshiba Nuclear Energy Holdings (UK) Ltd.
Notes to Combined Financial Statements (continued)
2. Acquisitions (continued)
The purchase price allocation for the SFL acquisition was allocated primarily to inventory. There were no intangible assets or goodwill acquired with this transaction. In conjunction with the acquisition of SFL, the Company entered into a 150-year lease with the NDA for the facility located at the SFL manufacturing site. The leased facility is included within buildings and leasehold improvements under property, plant and equipment, net on the accompanying combined balance sheets. The gross and net carrying values of facilities under the capital leases was $14,089 as of the acquisition date. The related capital lease obligation of $14,089 is included within noncurrent liabilities in the accompanying combined balance sheets. Payments on the capital lease obligation are deferred for an eight-year period and begin in the fiscal year ending March 31, 2019.
On May 7, 2009, the Company acquired 52% of Nuclear Fuel Industries, Ltd. (NFI), Japan’s sole producer of nuclear fuel for both boiling-water and pressurized-water reactors. The total cash paid for the acquisition at the time of the sale was $113,400. Funding for the transaction consisted of cash paid to the seller of $12,892 and debt incurred of $100,508 to a related party.
An additional cash payment of $6,372 was paid in July 2009 bringing the total purchase price to $119,772. Cash and cash equivalents acquired as a result of the transaction was $80,604, resulting in net cash used to acquire NFI of $39,186. The acquired other intangible assets primarily consisted of contracted customer relationships in the amount of $75,420 amortizable over a weighted-average life of 15.7 years and developed technology in the amount of $8,274 amortizable over 24 years.
The Nuclear Fuel segment was allocated the goodwill from the NFI acquisition which reflects the benefits the Company expects to receive from expanding the fuel operations in this geographic area.
Noncontrolling interest was valued by using the price that the Company will pay to purchase the remaining 48% holding along with projected dividends. This was then compared to the transaction price of purchasing 52% of NFI, including the purchase price adjustment, using a minimal discount rate. An average amount was used based on the two results.
In the fiscal year ended March 31, 2010, the Company recognized $5,484 of acquisition-related costs. These expenses are included within the marketing, administrative and general expenses line in the accompanying combined statements of operations and comprehensive income.
The results of NFI have been included in the Company’s combined results from May 7, 2009 onward.
On July 30, 2009, the Company acquired CS Innovations, LLC (CSI), a leading Instrumentation and Control (I&C) nuclear product supplier to the digital I&C safety system upgrade market for a cash payment of $12,000 at the time of the sale and contingent payments of $18,000 to be paid over the next three years when certain milestones were achieved. Of this $18,000, $7,975 was allocated to purchase price, shown as a liability in the combined balance sheet. Total purchase price was allocated to intangible assets for developed technology in the amount of $19,300 with an amortizable life of twenty years, $250 to a non-compete agreement with an amortizable life of three years, $140 to a brand name with an amortizable life of five years, and the residual amount as fixed assets. The results of CSI have been included in the Company’s combined results from July 30, 2009 onward. In December 2010, $1,500 was paid to former owners as a result of achieving certain milestones. The amount was removed from the liability mentioned above.
Toshiba Nuclear Energy Holdings (US), Inc. and
Toshiba Nuclear Energy Holdings (UK) Ltd.
Notes to Combined Financial Statements (continued)
2. Acquisitions (continued)
In June 2011, a new agreement was reached with the former owner and an employment agreement between CSI and the former owner was entered into. Under the new agreement, Westinghouse agreed to pay the former owner $12,000 to completely settle all matters related to the original milestone agreement. As a result of the new agreement, the existing liabilities of $6,475 related to the milestone payments were liquidated, and the remaining balance is being accounted for as prepaid expenses to be recognized over the remaining employment term of the former owner. The $250 non-compete intangible was also liquidated at this time. During the fiscal year ended March 31, 2012, the Company recognized $5,000 of expenses associated with the employment agreement. As of March 31, 2012, $1,000 remains as a prepaid expense to be amortized by March 31, 2013.
3. Business Segments
Reportable segments are identified by the Company’s management based on the service provided or product sold by the segment. The segments mirror the way the Company’s chief operating decision-maker regularly reviews operating results, assesses performance and allocates resources across the Company.
The segments used for management reporting are as follows:
Nuclear Fuel - Nuclear Fuel is a vertically integrated provider of uranium procurement, specialty metal alloy production, conversion of enriched uranium to fuel pellets, fuel assembly fabrication and engineering services to the global market of pressurized water reactors, boiling water reactors, and the United Kingdom fleet of advanced gas cooled and Magnox reactors.
Nuclear Services - Nuclear Services offers products and engineering, inspection, maintenance and repair services that keep nuclear power plants operating safely and competitively worldwide. Nuclear Services personnel work closely with customers in the following areas: field services, engineering analysis and installation and modification services.
Nuclear Automation - Nuclear Automation offers global products and services to operating and new nuclear power plant designs. Products and services are mainly comprised of full-scope Instrumentation and Control (I&C) solutions; product development, design, assembly and testing of advanced I&C products, including control system component services; and outage support and training.
Nuclear Power Plants - Nuclear Power Plants offers new plant designs, licensing, engineering and component design. Nuclear Power Plants enters into contracts to build nuclear power plants around the world that range from project management activities to full Engineer, Procure and Construct (EPC) contracts.
Eliminations/Corporate Center - Eliminations relate to intercompany sales. Corporate Center expenses relate to unallocated expenses. Corporate Center assets include cash and cash equivalents, prepaid assets, deferred tax assets and property, plant and equipment.
Toshiba Nuclear Energy Holdings (US), Inc. and
Toshiba Nuclear Energy Holdings (UK) Ltd.
Notes to Combined Financial Statements (continued)
3. Business Segments (continued)
Effective April 1, 2012, the Company restructured the composition of its reportable segments. As part of this reorganization, certain engineering services for new power plants will move from Nuclear Power Plants to Nuclear Services. Business development associated with new nuclear power plant opportunities will move from Nuclear Power Plants to Corporate Center. Management and delivery of EPC contracts for new nuclear power plants will remain with Nuclear Power Plants. Finally, certain overhead functions within each segment will be centralized within Corporate Center. Reporting under this new basis will take effect for the fiscal year ended March 31, 2013.
Revenue, income (loss) from operations, total assets, goodwill, and certain other amounts of income and expense consisted of the following by business segment for the fiscal years ended March 31, 2012, 2011 and 2010, respectively.
Toshiba Nuclear Energy Holdings (US), Inc. and
Toshiba Nuclear Energy Holdings (UK) Ltd.
Notes to Combined Financial Statements (continued)
3. Business Segments (continued)
Toshiba Nuclear Energy Holdings (US), Inc. and
Toshiba Nuclear Energy Holdings (UK) Ltd.
Notes to Combined Financial Statements (continued)
3. Business Segments (continued)
Revenue by geographical region is determined based on the location of the customers to whom the services are provided and products are sold. The Company’s geographical reporting model consists of three regions: Europe, Middle East and Africa (EMEA), Asia and the Americas. Revenue consists of the following by geographical region for the fiscal years ended March 31, 2012, 2011 and 2010, respectively.
Total assets by geographical region is determined based on the physical location of the asset. Total assets consist of the following by geographical region at March 31, 2012 and 2011.
4. Derivative Instruments and Hedging Activities
Techniques in managing foreign exchange risk include, but are not limited to, foreign currency borrowing and investing and the use of currency derivative instruments. The purpose of the Company’s foreign currency risk management activities is to protect from the risk that the eventual dollar cash flows resulting from the sale and purchase of services and products in foreign currencies will be adversely affected by changes in exchange rates.
The Company determines the fair value of foreign exchange contracts using a mark-to-market model, incorporating real market pricing with probable variables. The Company has classified all foreign exchange contracts as Level 2 with respect to the fair value hierarchy. Changes in the fair value of a derivative designed and qualified as a cash flow hedge, to the extent effective, are included in the combined statement of stockholders’ equity as accumulated other comprehensive income (loss) until earnings are affected by the hedged transaction. The Company discontinues hedge accounting prospectively when it has determined that a derivative no longer qualifies as an effective hedge.
The Company does not enter into derivative instruments for speculative or trading purposes. Forward foreign exchange contracts are primarily utilized to reduce the risk from foreign currency price fluctuations related to firm or anticipated sales transactions, commitments to purchase or sell equipment, materials and/or services and principal and interest payments denominated in a foreign currency. Forward foreign exchange contracts, which are commitments to buy or sell a specified amount of a foreign currency at a specified price and time, are generally used to manage identifiable foreign currency commitments and exposures related to assets and liabilities denominated in a foreign currency. These contracts generally have an expiration date of eight years or less.
Toshiba Nuclear Energy Holdings (US), Inc. and
Toshiba Nuclear Energy Holdings (UK) Ltd.
Notes to Combined Financial Statements (continued)
4. Derivative Instruments and Hedging Activities (continued)
The following table presents the fair values of derivative instruments included in the combined balance sheets as of March 31, 2012 and 2011:
Toshiba Nuclear Energy Holdings (US), Inc. and
Toshiba Nuclear Energy Holdings (UK) Ltd.
Notes to Combined Financial Statements (continued)
4. Derivative Instruments and Hedging Activities (continued)
The following table presents the effect of derivative instruments on the combined statements of operations and comprehensive income for the fiscal years ended March 31, 2012, 2011 and 2010:
Toshiba Nuclear Energy Holdings (US), Inc. and
Toshiba Nuclear Energy Holdings (UK) Ltd.
Notes to Combined Financial Statements (continued)
4. Derivative Instruments and Hedging Activities (continued)
Assuming market rates remain the same, the Company estimates $16,089 of the unrealized net losses on these cash flow hedges to be reclassified into earnings in the fiscal year ended March 31, 2012. Changes in the timing or amount of the future cash flows being hedged could result in hedges becoming ineffective, and as a result, the amount of unrealized gain or loss associated with those hedges would be reclassified from other comprehensive income into earnings. There were no gains or losses reclassified into earnings as a result of the discontinuance of cash flow hedges in the current year. At March 31, 2012, the maximum length of time over which the Company is hedging its exposure to the variability in future cash flows associated with foreign currency forecasted transactions is through January 2018.
5. Inventories
At March 31, 2012 and 2011, inventories consist of the following:
Inventories other than those related to long-term contracts are generally sold within one year.
Toshiba Nuclear Energy Holdings (US), Inc. and
Toshiba Nuclear Energy Holdings (UK) Ltd.
Notes to Combined Financial Statements (continued)
6. Property, Plant and Equipment
At March 31, 2012 and 2011, property, plant and equipment consist of the following:
Depreciation expense for the fiscal years ended March 31, 2012, 2011 and 2010 has been classified in the accompanying combined statements of operations and comprehensive income as follows:
Toshiba Nuclear Energy Holdings (US), Inc. and
Toshiba Nuclear Energy Holdings (UK) Ltd.
Notes to Combined Financial Statements (continued)
7. Goodwill and Intangible Assets
As of March 31, 2012 and 2011, goodwill consisted of the following:
Of the amount of goodwill and indefinite lived intangibles at March 31, 2012, only $968,147 is amortizable for income tax purposes. Approximately $72,739 of amortization will be deducted in tax returns for the fiscal year ended March 31, 2012.
The carrying amount and accumulated amortization of identifiable intangible assets as of March 31, 2012 and 2011 are as follows:
Amortization expense was $83,254, $84,235 and $82,915 for the fiscal years ended March 31, 2012, 2011 and 2010, respectively.
Toshiba Nuclear Energy Holdings (US), Inc. and
Toshiba Nuclear Energy Holdings (UK) Ltd.
Notes to Combined Financial Statements (continued)
7. Goodwill and Intangible Assets (continued)
NFI, a subsidiary of the Company’s Nuclear Fuel Product Line, had backlog related to MOX fuel recorded as Contracted Customer Relationships within intangible assets. In the current year, it was determined that the remaining cash flows through the useful life are not adequate to recover the carrying value of this intangible asset. To bring the net value of these assets to zero, the Company recorded an impairment of $5,308 within marketing, administrative and general expenses in the accompanying combined statements of operations and comprehensive income in March 2012.
In September 2010, the South African government shut down the Pebble Bed Modular Reactor (PBMR) project, which was a significant project to Westinghouse South Africa (WESA), a subsidiary of the Company within the Nuclear Services Product Line. This action resulted in an impairment of $1,635 related to Contracted Customer Relationships and $1,720 related to Developed Technology assets at WESA as they were closely linked to PBMR and the Company was unable to find other uses for these purchased intangible assets. The total impairment of $3,355 brought the net values of these assets to zero and was included in marketing, administrative and general expenses in the accompanying combined statements of operations and comprehensive income in March 2011.
The table below presents the expected amortization expense for definite-lived intangible assets for the next five years and thereafter as of March 31, 2012. The amortization amounts disclosed below are estimates. Actual amounts may differ from these estimates due to such factors as sales or impairments of intangible assets, acquisition of additional intangible assets, foreign currency translation and other events.
Toshiba Nuclear Energy Holdings (US), Inc. and
Toshiba Nuclear Energy Holdings (UK) Ltd.
Notes to Combined Financial Statements (continued)
8. Uranium Assets
Uranium, held in various forms, is primarily used in the nuclear fuel fabrication operations of the business. The Company maintains uranium working stock in order to ensure efficient manufacturing processes. The Company holds an additional amount of surplus uranium inventory, for which it periodically enters into transactions to sell uranium when appropriate opportunities arise. Such sales depend on many factors, including market price conditions, availability of willing purchasers and projected internal needs for uranium. During the fiscal year ended March 31, 2012, the Company completed four sales transactions to sell a total of 331 thousand tonnes uranium (teU) and 5.5 thousand separate work units (SWU) for a total of $46 million. During the fiscal year ended March 31, 2011, the Company completed seven sales transactions to sell a total of 627 thousand tonnes uranium (teU) and 200 thousand separate work units (SWU) for a total of $145 million. The Company recognizes revenue on the sales of uranium when the uranium is delivered and title passes to the customer.
At March 31, 2012, the spot price for Conversion Services (CS) was below the carrying value of surplus uranium inventory, and the Company recorded a write-off of inventory of $4,384 in the accompanying combined statements of operations and comprehensive income. At March 31, 2011, the spot prices of the uranium inventory that the Company had available for sale was not below cost, therefore no write-off was required.
Below is the classification of uranium assets within the accompanying combined balance sheets as of March 31, 2012 and 2011.
During the fiscal year ended March 31, 2012, certain amounts of uranium working stock were reclassed to uranium available for sale based upon a contractual arrangement with a third party to utilize uranium in exchange for storage and a determination by the Company that working stock could be sufficiently managed at lower levels. Uranium leased to external party was reclassed to uranium available for sale when the lease expired on December 31, 2011.
Toshiba Nuclear Energy Holdings (US), Inc. and
Toshiba Nuclear Energy Holdings (UK) Ltd.
Notes to Combined Financial Statements (continued)
9. Other Current and Noncurrent Assets
At March 31, 2012 and 2011, other current and noncurrent assets consist of the following:
Current restricted cash of $369 at March 31, 2012 is held pursuant to customer contracts in lieu of other financial security. Noncurrent restricted cash of $2,978 at March 31, 2012 is held pursuant to the following: (1) Sweden law requiring Westinghouse to fund Nuclear Decommissioning of $643, and (2) legal requirement in Germany to ensure pay to employees in the case of company liquidation of $2,335. Noncurrent restricted cash of $2,617 at March 31, 2011 is held pursuant to the following: (1) Sweden law requiring Westinghouse to fund Nuclear Decommissioning of $676, (2) legal requirement in Germany to ensure pay to employees in the case of company liquidation of $1,190, and (3) customer contracts in lieu of other financial security of $751. Due to the restricted cash balance pursuant to customer contracts expiring in October 2012, the balance was moved from other noncurrent to other current assets, a portion of the balance has since been paid.
Toshiba Nuclear Energy Holdings (US), Inc. and
Toshiba Nuclear Energy Holdings (UK) Ltd.
Notes to Combined Financial Statements (continued)
10. Asset Retirement Obligations (ARO)
The Company recognizes an ARO at its fair value in the period in which it is incurred, if a reasonable estimate of fair value can be made. An asset is also recorded equal to the fair value of the liability when incurred. The asset carrying amount is then depreciated over the life of the asset. The liability increases due to the passage of time based on the time value of money until the obligation is settled. Subsequent to the initial recognition, the liability is adjusted for any revisions to the expected value of the retirement obligation (with corresponding adjustments to the asset) and for accretion of the liability due to the passage of time. Retirement dates are consistent with the economic useful life of the related asset and are reviewed on an annual basis or as facts dictate. Additional depreciation expense is recorded prospectively for any plant and equipment increases.
The Company’s ARO relate primarily to the decommissioning of licensed nuclear facilities. These obligations address the decommissioning, cleanup and release for acceptable alternate use of such facilities.
The ARO is adjusted each period for any liabilities incurred or settled during the period, accretion expense, and any revisions made to the estimated cash flows. Management uses various sources to produce detailed reviews of the ARO, which occur every three to five years, depending upon rules of the respective governing body. Net present value calculations are made by escalating current year values by 3.0% per annum to the end of site life to estimate future cash flows required to settle the obligation. The estimated future cash flows are discounted using an interest rate equal to the risk-free rate adjusted for the effect of the Company’s credit standing based on the maturity dates that coincide with the expected timing of the estimated cash flows.
The Company is currently in the process of decommissioning a nuclear fuel facility in Hematite, Missouri. In June 2011, the Company reevaluated decommissioning project estimates relative to cleanup costs at the site. Based upon the most recent cost estimates, risk analysis and market alternatives, it was determined that the recorded reserve should be reduced by $18,800. This reduction resulted in operating profit recognized as a reduction of marketing administrative and general expenses in the accompanying statements of operations and comprehensive income. As of March 31, 2012 and 2011, the Company had a reserve for the Hematite project of $73,984 and $108,900, respectively, included in reserves for decommissioning matters in the accompanying combined balance sheets.
In December 2011, the Company updated its reserve for the Waltz Mill, Pennsylvania location which resulted in a reduction in the liability of $28,359 due mainly to timing of when the Company would expect to abandon the location. The same reduction was applied to the fixed assets at that location. As of March 31, 2012 and 2011, the Company had a reserve for Waltz Mill decommissioning of $37,948 and $67,117, respectively, included in reserves for decommissioning matters in the accompanying combined balance sheets.
Toshiba Nuclear Energy Holdings (US), Inc. and
Toshiba Nuclear Energy Holdings (UK) Ltd.
Notes to Combined Financial Statements (continued)
10. Asset Retirement Obligations (ARO) (continued)
Changes to the ARO presented as reserves for decommissioning matters in the accompanying combined balance sheets for the fiscal years ended March 31, 2012 and 2011 are as follows:
Of the above balances as of March 31, 2012 and 2011, $45,164 and $117,959, respectively, are included in other current liabilities in the accompanying combined balance sheets, which represent the expected settlement of liabilities over the year after the combined balance sheet dates.
11. Pension and Other Postretirement Benefit Plans
Pension Plans
The majority of the employees of the Company are covered under separate pension plans sponsored by Westinghouse Electric Company LLC (WEC LLC) (U.S. Plans), and separate plans sponsored by Nuclear Fuel Industries LTD, Westinghouse Electric Belgium SA, Westinghouse Electric Germany GmbH, Westinghouse Electrique France SAS, Westinghouse Electric Sweden AB and the Westinghouse Electric UK/Uranium Assets Management, Ltd. (WEC UK/UAM) Section of the BNFL Group Pension Scheme (Non-U.S. Plans). Details of the aforementioned plans can be found in the following tables.
Toshiba Nuclear Energy Holdings (US), Inc. and
Toshiba Nuclear Energy Holdings (UK) Ltd.
Notes to Combined Financial Statements (continued)
11. Pension and Other Postretirement Benefit Plans (continued)
The following table presents the net periodic pension costs covering current and former employees of the Company for the fiscal years ended March 31, 2012, 2011 and 2010:
The assumptions used to develop the net periodic pension cost and the present value of benefit obligations for the fiscal year ended March 31, 2012 are shown below.
The Company adjusts the discount rate to reflect current and expected-to-be-available interest rates on high-quality, fixed income investments expected to be available to the Company at the end of each year.
Toshiba Nuclear Energy Holdings (US), Inc. and
Toshiba Nuclear Energy Holdings (UK) Ltd.
Notes to Combined Financial Statements (continued)
11. Pension and Other Postretirement Benefit Plans (continued)
The following table sets forth the aggregate funded status and changes in benefit obligations and plan assets of the defined benefit pension plans and amounts recognized in the accompanying combined balance sheets as of March 31, 2012 and 2011, respectively:
Toshiba Nuclear Energy Holdings (US), Inc. and
Toshiba Nuclear Energy Holdings (UK) Ltd.
Notes to Combined Financial Statements (continued)
11. Pension and Other Postretirement Benefit Plans (continued)
Plan Assets
The following table sets forth by level, within the fair value hierarchy, the Master Trust’s assets carried at fair value as of March 31, 2012 and 2011, respectively:
Toshiba Nuclear Energy Holdings (US), Inc. and
Toshiba Nuclear Energy Holdings (UK) Ltd.
Notes to Combined Financial Statements (continued)
11. Pension and Other Postretirement Benefit Plans (continued)
There were no transfers within the fair value hierarchy during the fiscal years ended March 31, 2012 and 2011.
The changes in fair value measurements using significant unobservable inputs (Level 3) for the fiscal years ended March 31, 2012 and 2011 are as follows:
The U.S. Plans - The assets of the U.S. Plans are managed via the Westinghouse Electric Company Pension Master Trust (Trust). The Westinghouse Electric Company Pension Investment Committee (Committee) has been appointed to review the investment performance and other matters of the U.S. Plans, including development of investment policies and strategies.
The asset allocation decision reflects the plans’ return requirements, as well as the Committee’s tolerance for return variability (risk). The assets are invested in long-term strategies and evaluated within the context of a long-term investment horizon. Investments will generally be restricted to marketable securities. Leveraged and high-risk derivative strategies will not be employed.
Investment objectives are designed to provide quantitative standards against which to measure and evaluate the progress of the plans, their major asset class composites and each individual investment manager. The overall objective for the Trust is to generate a rate of return, net of all fees and expenses, in excess of a policy index that is comprised of a weighted average of the market benchmarks for each asset class.
The Non-U.S. Plans - The investment management of the Non-U.S. Plans is handled by an appointed Asset Manager located in the country of the plan sponsor. This Asset Manager is required to meet established targets by investing the plan assets following the prudent person principle in a mix of different adequate assets.
Toshiba Nuclear Energy Holdings (US), Inc. and
Toshiba Nuclear Energy Holdings (UK) Ltd.
Notes to Combined Financial Statements (continued)
11. Pension and Other Postretirement Benefit Plans (continued)
There is an established Strategic Asset Allocation agreed to by the Company for these plans, but in some cases, the Asset Manager has the flexibility to modify the allocation while still adhering to set minimal and maximal bounds for each class of asset. This allows the Asset Manager to optimize the portfolio within defined risk guidelines.
The assumed long-term rate of return for U.S. and Non-U.S. plan assets was determined by taking a weighted average of the expected rates of return on the asset classes. The weights are equal to the portion of the portfolio invested in each class.
The Company’s target and pension asset allocations at March 31, 2012 consist of the following:
Estimated Future Benefit Payments
Annual benefit payments for the year subsequent to March 31, 2012 are estimated as follows:
Toshiba Nuclear Energy Holdings (US), Inc. and
Toshiba Nuclear Energy Holdings (UK) Ltd.
Notes to Combined Financial Statements (continued)
11. Pension and Other Postretirement Benefit Plans (continued)
Contributions
Additionally, the Company anticipates funding its defined benefit pension plans with the following cash contributions to be paid during the fiscal year ended March 31, 2013:
Other Postretirement Benefit Plans
The Company also sponsors a postretirement benefits plan that provides defined medical, dental and life insurance for eligible retirees and dependents.
In prior years, the previous sponsor of this plan (CBS Corporation (CBS), formerly known as Viacom, Inc.) was required to reimburse Westinghouse for the costs of this plan under the Assets Purchase Agreement (APA) dated June 25, 1998, between CBS and BNFL. Due to BNFL’s sale of Westinghouse to Toshiba on October 16, 2006, CBS has successfully asserted that it is not obligated to make such reimbursements because it claims the recent sale constituted a “Disposition” as defined in the APA mentioned above.
Currently, Westinghouse and Toshiba have requested, pursuant to the Purchase Sales Agreement of October 16, 2006, that BNFL reimburse Westinghouse for its postretirement benefit costs subsequent to the sale date that would otherwise have been reimbursed by CBS. To date, BNFL has continued to reimburse the Company for the service costs. The actual costs that have been or are expected to be reimbursed by BNFL to Westinghouse for the fiscal years ended March 31, 2012 and 2011 are $2,705 and $4,571, respectively. The net present value of the expected reimbursements from BNFL is included as a noncurrent asset in the accompanying combined balance sheets at March 31, 2012 and 2011 in the amount of $18,830 and $21,684, respectively.
The components of net periodic postretirement benefit cost for the fiscal years ended March 31, 2012, 2011 and 2010 were as follows:
Toshiba Nuclear Energy Holdings (US), Inc. and
Toshiba Nuclear Energy Holdings (UK) Ltd.
Notes to Combined Financial Statements (continued)
11. Pension and Other Postretirement Benefit Plans (continued)
A plan amendment was made in January 2010 related to employees hired after January 1, 2010. These employees will be able to participate in the postretirement benefit plan but at full cost and will not have any company reimbursements for medical costs. This amendment has no impact on the plan balances. A plan amendment was made in January 2009 to eliminate the prescription drug benefit for post-65 retirees. This amendment caused a decrease in the net periodic benefit costs for the year ended March 31, 2009.
The assumptions used to develop the net periodic postretirement benefit cost and the present value of benefit obligations for the fiscal year ended March 31, 2012 are shown below. A measurement date of March 31, 2012 was used.
A one percentage point change in the assumed health care cost trend rate would have the following effects:
Net periodic postretirement benefit cost is determined using the assumptions as of the beginning of the year. The funded status is determined using the assumptions as of the end of the year. The funded status and amounts recognized in the accompanying combined balance sheets as of March 31, 2012 and 2011 are as follows:
Toshiba Nuclear Energy Holdings (US), Inc. and
Toshiba Nuclear Energy Holdings (UK) Ltd.
Notes to Combined Financial Statements (continued)
11. Pension and Other Postretirement Benefit Plans (continued)
Annual benefit payments, net of employee contributions, for the fiscal years subsequent to March 31, 2012 are estimated to be as follows:
Savings Plans
The Company also provides a defined contribution (DC) plan to U.S. employees. Employees may contribute from 2% to 35% of their compensation on a pretax or after-tax basis. WEC LLC matches 50% of the first 6% of an employee’s compensation contribution and WEC LLC contributed approximately $20,636, $19,996 and $17,285 to the defined contribution plan for the years ended March 31, 2012, 2011 and 2010, respectively.
In addition, the Company offers similar plans to employees in other countries outside of the U.S. Westinghouse Technology Services, S.A. in Spain is the sponsor of an occupational, DC plan where employees’ annual contributions equal to 1%-2% of their pension-qualifying salary, which is matched by the sponsor with a contribution equal to 250% of the participant’s annual basic contribution. Westinghouse Electric South Africa (Pty) Ltd. is a sponsor of a DC plan, where employees can contribute 5%-20% of their annual salary to this fund, but the sponsor does not contribute to the fund. Springfields Fuels Limited is a sponsor of a DC plan where employees’ annual contributions equal 3%-7% of their Pensionable Pay, which is matched by the sponsor equal to 8.0%-13.5% of the participants’ annual contribution. The Company contributed $2,104, $1,678 and $867 to Non-U.S. defined contribution plans for the years ended March 31, 2012, 2011 and 2010, respectively.
12. Income Taxes
The Company files a U.S. consolidated income tax return and other state and non-U.S. jurisdictional income tax returns as required. Income tax expense is computed on a separate return basis.
Income taxes are not recorded on undistributed earnings of foreign subsidiaries that have been or are intended to be reinvested indefinitely. Upon distribution, those earnings may be subject to income taxes and withholding taxes payable to various foreign countries. A determination of the amount of unrecognized deferred tax liability for temporary differences related to investments in foreign subsidiaries is not practical. Also, the Company presently cannot estimate the amount of unrecognized withholding taxes that may result.
Toshiba Nuclear Energy Holdings (US), Inc. and
Toshiba Nuclear Energy Holdings (UK) Ltd.
Notes to Combined Financial Statements (continued)
12. Income Taxes (continued)
The following provides detail of income tax expense (benefit) reported in the accompanying combined statements of operations and comprehensive income for the fiscal years ended March 31, 2012, 2011 and 2010.
The following provides detail of income before taxes and noncontrolling interest reported in the accompanying combined statements of operations and comprehensive income for the fiscal years ended March 31, 2012, 2011 and 2010.
Toshiba Nuclear Energy Holdings (US), Inc. and
Toshiba Nuclear Energy Holdings (UK) Ltd.
Notes to Combined Financial Statements (continued)
12. Income Taxes (continued)
The actual income tax expense (benefit) of continuing operations differs from the amount computed by applying the statutory U.S. Federal tax rate of 35%. A reconciliation of income tax expense at the U.S. Federal Statutory Tax Rate to the actual tax expense from continuing operations for the fiscal years ended March 31, 2012, 2011 and 2010 is as follows:
The Non-U.S. statutory rate reduction is primarily attributable to changes in the United Kingdom during the fiscal years ended March 31, 2012 and 2011. The effect of the statutory rate reductions in the United Kingdom of 1% on deferred income tax balances at March 31, 2011 and an additional 2% at March 31, 2012 resulted in a reduction in income tax expense of $6,329 and $12,198 in those years, respectively.
The Company provides deferred income taxes for temporary differences between the financial reporting basis and tax carrying amounts of assets and liabilities. The Company has gross deferred income tax assets and (liabilities) of $707,523 and $(1,002,599), respectively, at March 31, 2012, and $661,736 and $(972,746), respectively, at March 31, 2011. The components of net deferred income tax assets and (liabilities) at March 31, 2012 and 2011 are presented in the table below:
Toshiba Nuclear Energy Holdings (US), Inc. and
Toshiba Nuclear Energy Holdings (UK) Ltd.
Notes to Combined Financial Statements (continued)
12. Income Taxes (continued)
A valuation allowance is provided when it is more likely than not that some portion or all of deferred tax assets will not be realized. The Company has recorded valuation allowances of $9,842 and $8,712 for certain state net operating loss carryforwards at March 31, 2012 and 2011 which are expected to produce no tax benefit. Additionally, the Company has recorded a valuation allowance of $25,226 and $23,317 for certain non-U.S. net operating losses and other deferred tax assets at March 31, 2012 and 2011 in various countries expected to produce no benefit. Subsequent recognition of tax benefits related to valuation allowances will reduce income tax expense.
As of March 31, 2012, the Company has a U.S. federal net operating loss carryforward of approximately $378,948 (or tax-effected benefit of $132,632), which will expire from 2024 through 2030. The Company has a state net operating loss tax-effected benefit of approximately $25,405, which will, if not used, expire from 2012 through 2030. The Company has non-U.S. net operating loss carryforwards in various countries of approximately $62,434 (or tax-effected benefit of $19,692), all of which have no expiration date.
When the Company experienced an ownership change as a result of Toshiba acquiring Westinghouse from BNFL, plc, it caused a limitation on the annual use of the net operating loss carryforwards. Any unused limitation can be carried forward to subsequent years. The annual limitation significantly exceeds the amount utilized in the fiscal years ended March 31, 2012 and 2011.
The Company has an alternative minimum tax credit carryforward of approximately $11,214 that has no expiration date. The Company also has a research and development tax credit carryforward of approximately $4,518 which will if not utilized, will begin to expire in 2028. The full amount of research and development tax credit has been reserved for as an uncertain tax position.
Toshiba Nuclear Energy Holdings (US), Inc. and
Toshiba Nuclear Energy Holdings (UK) Ltd.
Notes to Combined Financial Statements (continued)
12. Income Taxes (continued)
The following is a tabular reconciliation of the total amounts of unrecognized tax benefits for the year (excluding interest and penalties):
An uncertain tax position is defined very broadly and includes not only tax deductions and credits but also decisions not to file in a particular jurisdiction, as well as the taxability of transactions. Included in the balance of unrecognized tax benefits at March 31, 2012, is $13,367 of tax benefits that, if recognized, would affect the effective tax rate.
The Company records interest and penalties related to uncertain income tax positions as income tax expense. Related to the unrecognized tax benefits noted above, the Company accrued penalties of $67 and interest of $72 during the fiscal year ended March 31, 2012, and in total, as of March 31, 2012, has recognized an Accounting Standards Codification (ASC) 740-10 liability for penalties of $78 and interest of $443.
While it is expected that the amount of unrecognized tax benefits will change in the next 12 months, quantification of an estimated range cannot be made at this time. The Company does not expect a change to have a significant impact on the results of operations or financial position of the Company; however, actual settlements may be different from amounts accrued.
The Company’s income tax returns are subject to examination by the relevant tax authorities for a number of years after the returns have been filed. The Internal Revenue Service (IRS) has completed its examination of the Company’s U.S. federal income tax returns filed for the March 31, 2008 year-end.
With few exceptions, the Company is no longer subject to U.S. federal, state, local or foreign examinations by tax authorities for years before 2009. The Company’s tax years for 2009 through 2011 are generally subject to examination by the tax authorities in the U.S. and in various state and foreign jurisdictions.
Toshiba Nuclear Energy Holdings (US), Inc. and
Toshiba Nuclear Energy Holdings (UK) Ltd.
Notes to Combined Financial Statements (continued)
13. Debt and Credit Facilities
Revolving credit facilities - In November 2011, the Company amended and extended the existing October 2009 credit facility; the resulting credit facility, in the amount of $700,000, has a tenor of five years. In November 2008, the Company entered into a four-year revolving credit facility in the amount of $150,000. This facility was increased to $200,000 and extended by one year in November 2009. This facility has a tenor of four years. The sole purpose of these facilities is to issue standby Letters of Credit in U.S. dollars or alternative currencies.
Letters of credit are not callable and the facility is not cancelable unless there is an event of default. There were no events of default as of March 31, 2012. The facilities are guaranteed by Toshiba, and interest rates paid under the facilities are tied to the credit rating of Toshiba. Depending on the Toshiba credit rating, interest rates are LIBOR plus 0.55% to 2.2545%, and fees for capacity range from 0.10% to 0.45%. At March 31, 2012 and 2011 approximately $501,210 and $609,683, respectively, was being used for standby letters of credit. As current standby letters of credit expire, the Company expects to replace them, as required, with new letters of credit under the facility.
14. Commitments and Contingencies
Environmental Matters
Compliance with federal, state and local laws and regulations relating to the discharge of pollutants into the environment, the disposal of hazardous wastes and other related activities affecting the environment have had and will continue to have an impact on the Company. It is difficult to estimate the timing and ultimate costs to be incurred in the future due to uncertainties about the status of laws, regulations and technology, the adequacy of information available for individual sites, the extended time periods over which site remediation occurs, the availability of waste disposal capacity and the identification of new sites. The Company has, however, recognized an estimated liability of $78,978 and $79,002 as of March 31, 2012 and 2011, respectively, measured in current dollars, for those sites where it is probable that a loss has been incurred and the amount of the loss can be reasonably estimated. The Company recognizes changes in estimates as new remediation requirements are defined or as more information becomes available.
Operating expenses that are recurring and associated with managing hazardous waste and pollutants in ongoing operations totaled $15,992, $16,394 and $11,290 for the fiscal years ended March 31, 2012, 2011 and 2010, respectively. These expenses are included in cost of goods sold in the accompanying combined statements of operations and comprehensive income.
Management believes that the Company has adequately provided for its present environmental obligations and that complying with existing governmental regulations will not materially impact the Company’s financial position, liquidity or results of operations.
Toshiba Nuclear Energy Holdings (US), Inc. and
Toshiba Nuclear Energy Holdings (UK) Ltd.
Notes to Combined Financial Statements (continued)
14. Commitments and Contingencies (continued)
Legal Proceedings
The Company is involved in various litigation matters in the ordinary course of business. Reserves are included in the accompanying combined balance sheets for issues when a negative outcome is probable and the amount is reasonably estimable. In the opinion of management, while it is possible that certain outcomes could be unfavorable to the Company, the ultimate resolution of such matters will not result in judgments that, in the aggregate, would materially affect the Company’s financial position or results of operations. As of March 31, 2012, several matters were in the litigation and dispute resolution process. The following discussion provides a background and the current status on the most significant of these matters:
Caldon, Inc. v. Westinghouse - During 2004, a lawsuit was filed against the Company alleging that it made disparaging statements concerning the product of a competitor. It is alleged that these statements caused harm to the plaintiff. The case is currently in the discovery process. The Company has recorded $3,000 in other current liabilities in the accompanying combined balance sheets as of fiscal years ended March 31, 2012 and 2011. The Company believes it has meritorious defenses and continues to defend the claims.
Product Warranty
The Company provides various warranties on its products and contracts for specific periods of time. Warranties vary depending upon the nature of the product or contract and other factors. The liability for warranties is based upon future product performance and durability and is estimated largely based upon historical experience. Adjustments are made to accruals as claim data and historical experience warrant. The changes in the provision for those warranties for the fiscal years ended March 31, 2012 and 2011 are as follows:
Toshiba Nuclear Energy Holdings (US), Inc. and
Toshiba Nuclear Energy Holdings (UK) Ltd.
Notes to Combined Financial Statements (continued)
14. Commitments and Contingencies (continued)
Unconditional Purchase Obligations
The Company is obligated to make payments under unconditional purchase obligations. Maximum payments for contracts with remaining terms in excess of one year are summarized below:
The Company’s unconditional purchase obligations relate to long-lead equipment procured for use as part of future AP1000 units not currently governed by a contractual arrangement with a customer. Amounts purchased under these obligations were $19,835, $4,486 and $21,769 for the fiscal years ended March 31, 2012, 2011 and 2010, respectively.
Commitments
In the ordinary course of business, letters of credit and surety bonds are issued on behalf of the Company. As of fiscal years ended March 31, 2012 and 2011, the Company had $511,274 and $618,740, respectively, under letters of credit and $21,785 and $19,788 under surety bond obligations.
15. Leases
The Company has commitments under operating leases for certain machinery and equipment and facilities used in various operations. Certain of these leases contain renewal options for additional periods of five years and contain certain rent escalation clauses. Rental expense was $66,805, $77,867 and $52,969 for the fiscal years ended March 31, 2012, 2011 and 2010, respectively.
Minimum lease payments under the Company’s operating leases as of March 31, 2012 are presented in the table below:
Toshiba Nuclear Energy Holdings (US), Inc. and
Toshiba Nuclear Energy Holdings (UK) Ltd.
Notes to Combined Financial Statements (continued)
15. Leases (continued)
The Company leases three facilities within its Nuclear Services and Nuclear Fuel business segments under capital leases. These facilities are included with buildings and improvements under property, plant and equipment in the accompanying combined balance sheets. The gross and net carrying values of facilities under capital leases are approximately $56,849 and $54,441, respectively, as of March 31, 2012 and $68,339 and $64,570, respectively, as of March 31, 2011.
Certain of these facilities are leased from related parties. One of the facilities is being leased from a partner in the NuCrane Manufacturing, LLC joint venture formed to fabricate, assemble and test specialty cranes for nuclear power plants. The Company entered into the lease in the prior year. The gross and net carrying value of the leased facility is approximately $6,230 and $5,399, respectively, as of March 31, 2012 and $6,230 and $5,814, respectively, as of March 31, 2011. Another facility is being leased from the minority owner of NFI. The gross and net carrying values of the leased facility are approximately $36,637 and $35,247, respectively, as of March 31, 2012 and $48,020 and $44,761, respectively, as of March 31, 2011.
The Company has also acquired various equipment under capital leases. This equipment is included with machinery and equipment under property, plant and equipment on the accompanying combined balance sheets. The gross and net carrying values of equipment under capital leases are approximately $6,288 and $3,131, respectively, as of March 31, 2012 and $6,372 and $3,374, respectively, as of March 31, 2011.
Minimum lease payments under the Company’s capital lease obligations as of March 31, 2012 are as follows:
Toshiba Nuclear Energy Holdings (US), Inc. and
Toshiba Nuclear Energy Holdings (UK) Ltd.
Notes to Combined Financial Statements (continued)
16. Other Current and Noncurrent Liabilities
At March 31, 2012 and 2011, other current and noncurrent liabilities consist of the following:
Toshiba Nuclear Energy Holdings (US), Inc. and
Toshiba Nuclear Energy Holdings (UK) Ltd.
Notes to Combined Financial Statements (continued)
17. Sales of AP1000 Nuclear Plants
The Company’s advanced design nuclear reactor, the AP1000, is based on passive safety technology and is the only such reactor design to receive Final Design Certification (DC) by the Nuclear Regulatory Commission (NRC).
AP1000 Design Certification Status
On June 13, 2011, the Company submitted the final revision, Revision 19, to AP1000 Design Control Document. The amendment was submitted on time, consistent with the rule-making schedule issued by the NRC, which was developed to obtain the AP1000 rule and reference Combined Operating License (COL) approval in late 2011. The amendment incorporated the resolution of all known NRC requests for additional information. On August 5, 2011, the NRC Staff issued the Final Safety Evaluation Report (FSER) and the NRC commissioners voted in favor of issuing the new Design Certification rule on December 22, 2011. On December 30, 2011, the amendment to Westinghouse’s AP1000 Design Certification was published in the Federal Register and became effective 30 days after publication.
Combined Operating Licensing (COL) Projects Update - U.S. Projects
There was significant progress and achievements recognized this fiscal year with both the Reference (R-COL, Southern Project) and subsequent (S-COL, Scana Project) COL applications.
Southern Project - Vogtle
Based on the AP1000 Design Certification, as described in the AP1000 Design Certification Status section above, the Southern Nuclear Corporation’s (SNC) application for a COL completed its NRC review and approval process. On February 10, 2012, the SNC received its COL for the Vogtle Units 3 and 4.
Scana Project - VC Summer
Based on the AP1000 Design Certification, as described in the AP1000 Design Certification Status section above, the Scana Project’s application for a COL completed its NRC review and approval process. On March 30, 2012, the Scana Project received its COL for the VC Summer Units 2 and 3. Project schedules are being adjusted as a result of the COL issuance and construction activities have begun in support of the new project schedule.
China
In July 2007, the Company signed three contracts for supply of four AP1000 units into China. The units are being constructed at sites designated by the Chinese customers, two at Sanmen and two at Haiyang. The three contracts provide for separate aspects of work, which are: the Nuclear Island (NI) contract that provides for supply of the nuclear reactor and other components to deliver steam to the turbine (being supplied separately by the Chinese customer); a Technology Transfer (TT) agreement that will enable the Chinese customer to design and build future AP1000 units for use within China only, without support from the Company; and a Fuel Assembly (FA) contract to provide the initial core fuel load for each unit. Under a Consortium Agreement, Shaw is providing a portion of the scope under the NI and TT contracts. The Shaw scope is largely related to certain construction management and engineering activities.
Toshiba Nuclear Energy Holdings (US), Inc. and
Toshiba Nuclear Energy Holdings (UK) Ltd.
Notes to Combined Financial Statements (continued)
17. Sales of AP1000 Nuclear Plants (continued)
Revenue recognition is generally on the percentage-of-completion method and for the years ended March 31, 2012, 2011 and 2010, $470,170, $453,208 and $436,205, respectively, of revenue has been recognized. Cash is collected on a contract milestone basis, which may precede or lag actual work performed.
At March 31, 2012 and 2011, total cash collected exceeded total costs and total estimated earnings and is included in billings in excess of costs and estimated earnings on uncompleted contracts in the accompanying combined balance sheets.
U.S.
During the year ended March 31, 2009, the Company signed three Engineering, Procurement, and Construction (EPC) agreements for the sale of AP1000 units to various U.S. utilities. In April 2008, the Company signed an EPC agreement with Georgia Power Company, Oglethorpe Power Corporation, the Municipal Electric Authority of Georgia and the City of Dalton, Georgia for the sale of two AP1000 units to be constructed in the state of Georgia (Southern Project). In May 2008, the Company signed an EPC agreement with South Carolina Electric & Gas Company and the South Carolina Public Service Authority, for the sale of two AP1000 units to be constructed in the state of South Carolina (Scana Project). In December 2008, the Company signed an EPC agreement with Progress Energy Florida, for the sale of two AP1000 units to be constructed in the state of Florida (Progress Project). Like the China contract, and in conjunction with the three signed EPC agreements noted above, the Company and Shaw (the Consortium Partners) signed separate Consortium Agreements for each individual EPC agreement; however, the U.S. EPCs require Shaw to provide substantially all of the construction components of the EPC. The consortium is not a legal entity, but a working arrangement that defines the split of work scope, sharing of risk and dispute resolution between the Consortium Partners.
Revenue recognition, on all US AP1000 agreements, is generally on the percentage-of-completion method and for the years ended March 31, 2012, 2011 and 2010, $993,211, $887,999 and $532,739, respectively, of revenue was recognized. Cash is collected on a contract milestone basis, which may precede or lag actual work performed.
At March 31, 2012 and 2011, total cash collected exceeded total costs and total estimated earnings and is included in billings in excess of costs and estimated earnings on uncompleted contracts in the accompanying combined balance sheets.
Progress Energy Florida (PEF)
On April 30, 2009, the Company received notice from PEF of their intention to delay the execution of the EPC contract signed in December 2008. PEF has determined that the delay is warranted as PEF is required to obtain its Combined Operating License from the NRC, prior to the beginning of pre-construction work. Subsequently, the Company and PEF executed an amendment, signed in March 2010, to the existing EPC contract that called for a further suspension and revision of certain contract terms. As a result of the above, and in consultation with PEF, the Company will begin to plan for a commercial operating date delay ranging from 60 to 72 months for the first of two units covered under the EPC. The EPC addresses the matter of suspension of activity, and neither party anticipates that this suspension will result in termination of the contract.
Toshiba Nuclear Energy Holdings (US), Inc. and
Toshiba Nuclear Energy Holdings (UK) Ltd.
Notes to Combined Financial Statements (continued)
18. Related-Party Transactions
The Company has entered into numerous contracts and purchase orders with Toshiba and its affiliates, Shaw and its affiliates, IHI and Kazatomprom. Several of the contracts include more than one of the owners. The contracts are generally to execute portions of the Company’s normal operations and other customer contracts. In addition, the Company has entered into contracts to procure components and services from Toshiba, IHI and Shaw in connection with sales of AP1000 plants (see Note 17). For the fiscal years ended March 31, 2012, 2011 and 2010, the Company had the following activity with related parties reported in the accompanying combined statements of operations and comprehensive income:
In March 2011, Uranium Asset Management (UAM), a wholly owned subsidiary, sold assets to Advanced Uranium Asset Management (AUAM), a 40%-owned joint venture with Toshiba. The assets were sold at a profit of $2,035 and 40% of this was eliminated by reducing the gain on sale of assets within other income in the accompanying combined statements of operations and comprehensive income for the year ended March 31, 2011, and the investment in unconsolidated subsidiaries within the accompanying combined balance sheets. This amount of $814 will be recognized ratably as income each year as the assets depreciate within AUAM. In the year ended March 31, 2012, $244 of expense was eliminated within other (expense) income, net in the accompanying combined statements of operations and comprehensive income.
At March 31, 2012 and 2011, the Company had the following outstanding balances with related parties reported in the accompanying combined balance sheets:
At March 31, 2012 and 2011, related-party receivables consist of the following:
Toshiba Nuclear Energy Holdings (US), Inc. and
Toshiba Nuclear Energy Holdings (UK) Ltd.
Notes to Combined Financial Statements (continued)
18. Related-Party Transactions (continued)
The weighted average interest rates on the Toshiba International Finance (UK) loans as of March 31, 2012 and 2011 were .384% and .358%, respectively. Accrued interest on these loans at March 31, 2012 and 2011 was $100 and $168, respectively. The Toshiba International Finance (UK) loans and related interest due to the Company outstanding at March 31, 2012 and 2011 were repaid on various dates in April 2012 and 2011, respectively.
At March 31, 2012 and 2011, related-party payables consist of the following:
At March 31, 2012 and 2011, notes due to related parties reported within noncurrent liabilities consisted of the following:
The Korea JV note was repaid in March 2012. The China JV note is made up of two separate loans, loan one bears an interest rate of 4.40% and matures in March 2014, loan two bears an interest rate of 6.65% and matures in November 2014. See Note 19 for additional information on these JVs.
19. Variable Interest Entities (VIEs)
The Company evaluates at inception each joint venture to determine if it qualifies as a variable interest entity (VIE) under ASC 810. A VIE is an entity used for business purposes that either (a) does not have equity investors with voting rights or (b) has equity investors who are not required to provide sufficient financial resources for the entity to support its activities without additional subordinated financial support. The majority of the Company’s joint ventures qualify as VIEs because the total equity investment is typically nominal and not sufficient to permit the entity to finance its activities without additional subordinated financial support.
The Company also evaluates whether it is the primary beneficiary of each VIE and consolidates the VIE if the Company has both (1) the power to direct the economically significant activities of the entity and (2) the obligation to absorb losses of, or the right to receive benefits from, the entity that could potentially be significant to the variable interest entity. 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 whether it qualifies as the primary beneficiary. The Company also considers all parties that have direct or implicit variable interests when determining whether it is the primary beneficiary.
Toshiba Nuclear Energy Holdings (US), Inc. and
Toshiba Nuclear Energy Holdings (UK) Ltd.
Notes to Combined Financial Statements (continued)
19. Variable Interest Entities (VIEs) (continued)
Each quarter, the Company reassesses its VIEs to determine whether there are any changes in the status of the VIEs or changes to the primary beneficiary designation of each VIE. Subsequent to the adoption of the standard at the beginning of fiscal year 2011, the Company concluded that no unconsolidated joint ventures should be consolidated and that no consolidated joint ventures should be de-consolidated.
The Company performed an evaluation of VIEs in accordance with FASB Codification 810 to determine the primary beneficiary of each VIE and the resulting consolidation conclusion at March 31, 2012. The two main factors utilized in determining if the Company is the primary beneficiary of the VIE are the power to direct the activity that most significantly impacts the entity’s cash flow as a primary customer and the decision-making process through the voting power. If the Company is deemed to be the primary beneficiary, the Company will consolidate the VIE into the combined financial statements.
Unconsolidated VIEs
The Company uses the equity method of accounting for its unconsolidated entities. Under the equity method, the Company recognizes its proportionate share of the net earnings of the joint ventures within other (expense) income, net in the accompanying combined statement of operations and comprehensive income. Based on the Company’s evaluation, it was noted that the Company was not the primary beneficiary for the following entities:
Advance Uranium Asset Management Limited (AUAM) - AUAM was established to market uranium after it has been mined, milled, converted and/or enriched in multiple forms. The Company does not have the decision-making power through majority voting rights. Additionally, the customer base for the entity is that of the other party. The Company made a capital contribution to AUAM totaling $1,826 in May 2010. This was reduced in March 2011 due to the related-party transaction discussed in Note 18.
Nuclear Engineering Limited (NEL) - NEL was established by Nuclear Fuel Industries LTD (NFI) in 1985. Currently, NFI holds equity interests in NEL of 44.45%. The main businesses of NEL are to provide nuclear power plant related nondestructive inspection, core management, plant engineering and software engineering services. The Company does not have the decision-making power through majority voting rights.
Enwesa Operations - Enwesa was established in 1996 with the purpose of providing repair and maintenance services for electric energy plants. Currently, the Company has a 25% ownership of Enwesa. The Company does not have the decision-making power through majority voting rights.
The Company does not have the power to direct the activity that most significantly impacts the performance of the aforementioned entities. Based on these facts, the Company does not consolidate the entities and accounts for the entities under the equity method of accounting.
Toshiba Nuclear Energy Holdings (US), Inc. and
Toshiba Nuclear Energy Holdings (UK) Ltd.
Notes to Combined Financial Statements (continued)
19. Variable Interest Entities (VIEs) (continued)
Summarized financial information for all jointly owned entities that are accounted for using the equity method of accounting is as follows:
Balance Sheet
Income Statement
Consolidated VIEs
State-Nuclear WEC Zirconium Hafnium Co., Ltd. (China JV) - China JV is a joint venture that was established to research and develop the manufacturing process, as well as to manufacture and sell nuclear grade zirconium sponge, industrial grade zirconium sponge, hafnium oxide or hafnium sponge and relevant by-products. The Company has the power to direct the activity that most significantly impacts the performance of the joint venture by purchasing a majority of the annual production.
Westinghouse Technology Services S.A. (WTS) - WTS is a joint venture that was formed to conduct nuclear field and engineering services operations related to activity in Spain. The Company’s primary business is to provide nuclear services to power plants. The Company is the primary service provider of the entity, which is attributable to the power to direct the economic performance of the entity through provided services.
Toshiba Nuclear Energy Holdings (US), Inc. and
Toshiba Nuclear Energy Holdings (UK) Ltd.
Notes to Combined Financial Statements (continued)
19. Variable Interest Entities (VIEs) (continued)
Westron - Westron is a joint venture that was created to design, manufacture, sell and service process control systems for nuclear and conventional electric power stations, thermal power stations and industrial plants. The Company is the primary service provider of the entity and therefore has the power to direct the economic performance.
NuCrane Manufacturing, LLC - NuCrane Manufacturing, LLC was formed to fabricate, assemble and test specialty cranes for nuclear power plants. The Company will provide senior management oversight to the entity. The Company is also the primary customer of the entity to purchase cranes for the production of AP1000 power plants. This gives the Company the power to direct the economic performance of the entity.
KW Nuclear Components Co. LTD (Korea JV) - The purpose of the Korea JV is to design, manufacture and supply Control Element Assemblies (CEAs) for use in nuclear power plants. The Company has the power to most significantly impact the economic performance by being the main customer of the Korea JV for the production of AP1000 nuclear power plants.
Kontec - Kontec is an entity that was established to operate the biannual, international conference for conditioning of radioactive operational and decommissioning waste. The Company has the power to direct the activity that most significantly impacts the performance through the voting power of the managing director on the board of directors.
The above entities have been determined to be a VIE, and the Company has the power and rights to receive benefits or to absorb losses. The Company is also required to contribute capital to each entity on an as-needed basis based on percentage of ownership interest. Based on these facts, the Company is the primary beneficiary and has consolidated these. The creditors of the consolidated VIEs above do not have recourse to the general credit of the primary beneficiary.
The following entity is not a VIE but is consolidated because the Company holds a majority voting interest:
Nuclear Fuel Industries LTD (NFI) - NFI is a Japanese producer of nuclear fuel for both boiling-water and pressurized-water reactors. The Company has the power to direct the activity that most significantly impacts the performance through the voting power of the managing director on the board of directors.
The following is a summary of the consolidated VIEs of the Company:
Toshiba Nuclear Energy Holdings (US), Inc. and
Toshiba Nuclear Energy Holdings (UK) Ltd.
Notes to Combined Financial Statements (continued)
19. Variable Interest Entities (VIEs) (continued)
The assets of the Company’s consolidated joint ventures are restricted for use only by the particular joint venture and are not available for the Company’s general operations.
20. Claims and Unapproved Change Orders
The Company has recognized revenue from several claims and unapproved change orders where the amount has been estimated reliably, realization is probable and there is a legal basis. The following summarizes significant claims and unapproved change orders included in determining the profit or loss on contracts as of March 31, 2012 and 2011:
These amounts have been included in costs and estimated earnings in excess of billings on uncompleted contracts in the accompanying combined balance sheets. Included in claims and unapproved change orders above, the Company recognized $14,400 of margin on a change order with a specific customer deemed to be probable as of March 31, 2012.
21. Stockholders’ Equity
TNEH-US’s capital structure consists of 4,400 authorized shares of common stock with a par value of $0.01, of which 2,156 are Class A shares and 2,244 are Class B shares. Each share of Class A and Class B stock is given one vote. Class A stock has dividend preference over Class B stock with regard to dividend distribution timing. There were 1,960 shares of Class A stock and 2,040 shares of Class B stock issued and outstanding at March 31, 2012, for $1,960,000 and $2,040,000, respectively.
TNEH-UK’s capital structure consists of 1,550 authorized shares of common stock with a par value of one British Sterling Pound, of which 760 are Class A shares and 790 are Class B shares. Each share of Class A and Class B stock is given one vote. Class A stock has dividend preference over Class B stock with regard to dividend distribution timing. There were 686 shares of Class A stock and 714 shares of Class B stock issued and outstanding at March 31, 2012, for $686,000 and $714,000, respectively.
Toshiba Nuclear Energy Holdings (US), Inc. and
Toshiba Nuclear Energy Holdings (UK) Ltd.
Notes to Combined Financial Statements (continued)
21. Stockholders’ Equity (continued)
The U.S. Shareholders Agreement and UK Shareholders Agreement describe the conditions under which dividends will be paid. The intent of the Agreements is to pay dividends of at least $22,222 (whole dollars) per share each fiscal year, prorated for partial fiscal years, on a quarterly basis if and when declared by the Boards of Directors of TNEH-US and TNEH-UK. During the fiscal year ended March 31, 2012, TNEH-US paid dividends of $56,610 and $29,601 in August 2011 and February 2012, respectively, and TNEH-UK paid dividends of $19,763 and $10,332 in August 2011 and February 2012, respectively. During the fiscal year ended March 31, 2011, TNEH-US paid dividends of $29,917 and $19,499 in August 2010 and February 2011, respectively, and TNEH-UK paid dividends of $10,424 and $6,825 in August 2010 and February 2011, respectively. During the fiscal year ended March 31, 2010, TNEH-US paid dividends of $32,536 in February 2010, and TNEH-UK paid dividends of $27,107 in February 2010. During the fiscal year ended March 31, 2009, TNEH-UK paid dividends of $71,201 on December 31, 2008.
The U.S. Shareholders Agreement and the UK Shareholders Agreement also contain call options. Call prices are at fair market value, to be determined by the parties. Call rights are triggered by an event of insolvency of one shareholder, in which case the shares of the insolvent shareholder may be called, or a change in control event, in which case the shares of one shareholder are transferred or acquired by a competitor of the Company or any other person to whom the Company has not consented. At March 31, 2012, no call options have been exercised.
22. Accumulated Other Comprehensive Loss
At March 31, 2012 and 2011, the components of accumulated other comprehensive loss, net of tax, are as follows: