UNITED STATES
SECURITIES AND EXCHANGE
COMMISSION
Washington, D.C.
20549
Form 10-K
|
|
|
|
|
(Mark one)
|
|
x
|
|
|
Annual Report Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
|
For the fiscal
year ended December 26,
2010
|
OR
|
|
o
|
|
|
Transition report pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
|
For the transition period
from to
|
|
Commission File Number
001-32627
|
HORIZON LINES, INC.
(Exact name of registrant as
specified in its charter)
|
|
|
Delaware
|
|
74-3123672
|
(State or other jurisdiction
of
|
|
(I.R.S. Employer
|
incorporation or
organization)
|
|
Identification
No.)
|
4064 Colony Road,
Suite 200, Charlotte, North Carolina 28211
(Address of principal executive
offices)
(704) 973-7000
(Registrants telephone
number, including area code)
NOT APPLICABLE
(Former name, former address and
former fiscal year, if changed since last report)
Securities registered pursuant to Section 12 (b) of
the Act:
|
|
|
Title of each class
|
|
Name of each exchange on which registered
|
Common stock, par value $0.01 per share
|
|
New York Stock Exchange
|
Securities registered pursuant to Section 12 (g) of
the Act: None
Indicate by check mark if the registrant is a well-known
seasoned issuer, as defined in Rule 405 of the Securities
Act.
Yes o No x
Indicate by check mark if the registrant is not required to file
reports pursuant to Section 13 or Section 15
(d) of the Act.
Yes o No x
Indicate by check mark whether the registrant (1) has filed
all reports required to be filed by Section 13 or 15(d) of
the Securities Exchange Act of 1934 during the preceding
12 months (or for such a period that the registrant was
required to file such reports), and (2) has been subject to
such filing requirements for the past
90 days. Yes x No o
Indicate by check mark whether the registrant has submitted
electronically and posted on its corporate website, if any,
every Interactive Data File required to be submitted and posted
pursuant to Rule 405 of
Regulation S-T
(§ 232.405 of this chapter) during the preceding
12 months (or for shorter period that the registrant was
required to submit and post such
files). Yes o No o
Indicate by check mark if disclosure of delinquent filers
pursuant to Item 405 of
Regulation S-K
(229.405) of this chapter) is not contained herein, and will not
be contained, to the best of the registrants knowledge, in
definitive proxy or information statements incorporated by
reference in Part III of this
Form 10-K
or any amendment to this
Form 10-K o
Indicate by check mark whether the registrant is a large
accelerated filer, an accelerated filer, a non-accelerated
filer, or a smaller reporting company. See the definitions of
large accelerated filer, accelerated
filer and smaller reporting company in Rule
12b-2 of the
Exchange Act. (Check one):
|
|
|
|
Large
accelerated
filer o
|
Accelerated
filer x
|
Non-accelerated
filer o
|
Smaller reporting
company o
|
(Do not check if a smaller
reporting company)
Indicate by check mark whether the Registrant is a shell company
(as defined in
Rule 12b-2
of the Exchange Act).
Yes o No x
The aggregate market value of common stock held by
non-affiliates, computed by reference to the closing price of
the common stock as of the last business day of the
registrants most recently completed second fiscal quarter,
was approximately $77.2 million.
As of March 21, 2011, 30,771,710 shares of common
stock, par value $.01 per share, were outstanding.
DOCUMENTS
INCORPORATED BY REFERENCE
The information required in Part III of this
Form 10-K
is incorporated by reference to the registrants definitive
proxy statement to be filed for the Annual Meeting of
Stockholders to be held June 2, 2011.
Horizon Lines,
Inc.
FORM 10-K
INDEX
Safe Harbor
Statement
This
Form 10-K
(including the exhibits hereto) contains forward-looking
statements within the meaning of the federal securities
laws. These forward-looking statements are intended to qualify
for the safe harbor from liability established by the Private
Securities Litigation Reform Act of 1995. Forward-looking
statements are those that do not relate solely to historical
fact. They include, but are not limited to, any statement that
may predict, forecast, indicate or imply future results,
performance, achievements or events. Words such as, but not
limited to, believe, expect,
anticipate, estimate,
intend, plan, targets,
projects, likely, will,
would, could and similar expressions or
phrases identify forward-looking statements.
All forward-looking statements involve risks and uncertainties.
The occurrence of the events described, and the achievement of
the expected results, depend on many events, some or all of
which are not predictable or within our control. Actual results
may differ materially from expected results.
(i)
Factors that may cause actual results to differ from expected
results include:
|
|
|
|
|
our ability to maintain adequate liquidity to operate our
business,
|
|
|
|
our ability to repay or extend our indebtedness when it becomes
due or if maturity is accelerated,
|
|
|
|
our ability to obtain waivers or reach agreements with respect
to indebtedness that we expect to default upon during the second
and third quarter of 2011,
|
|
|
|
volatility in fuel prices
|
|
|
|
cyclical nature of international shipping industry and resulting
volatile changes in freight rates,
|
|
|
|
decreases in shipping volumes,
|
|
|
|
our ability to continue as a going concern,
|
|
|
|
failure to comply with the terms of our probation imposed by the
court in connection with our plea relating to antitrust matters,
|
|
|
|
any new developments relating to antitrust matters in any of our
trades,
|
|
|
|
failure to resolve or successfully defend pending and future
civil antitrust claims in Puerto Rico,
|
|
|
|
our ability to integrate new management and retain existing
management,
|
|
|
|
government investigations related to recordkeeping and reporting
requirements for ship generated pollution and any other
government investigations and legal proceedings,
|
|
|
|
suspension or debarment by the federal government
|
|
|
|
international regulatory and currency environment,
|
|
|
|
compliance with safety and environmental protection and other
governmental requirements,
|
|
|
|
the successful
start-up of
any Jones-Act competitor,
|
|
|
|
increased inspection procedures and tighter import and export
controls,
|
|
|
|
repeal or substantial amendment of the coastwise laws of the
United States, also known as the Jones Act,
|
|
|
|
catastrophic losses and other liabilities,
|
|
|
|
the arrest of our vessels by maritime claimants,
|
|
|
|
severe weather and natural disasters, or
|
|
|
|
the aging of our vessels; unexpected substantial dry-docking
costs for our vessels.
|
In light of these risks and uncertainties, expected results or
other anticipated events or circumstances discussed in this
Form 10-K
(including the exhibits hereto) might not occur. We undertake no
obligation, and specifically decline any obligation, to publicly
update or revise any forward-looking statements, even if
experience or future developments make it clear that projected
results expressed or implied in such statements will not be
realized, except as may be required by law.
See the section entitled Risk Factors in this
Form 10-K
for a more complete discussion of these risks and uncertainties
and for other risks and uncertainties. Those factors and the
other risk factors described in this
Form 10-K
are not necessarily all of the important factors that could
cause actual results or developments to differ materially from
those expressed in any of our forward-looking statements. Other
unknown or unpredictable factors also could harm our results.
Consequently, there can be no assurance that actual results or
developments anticipated by us will be realized or, even if
substantially realized, that they will have the expected
consequences to, or effects on, us. Given these uncertainties,
prospective investors are cautioned not to place undue reliance
on such forward-looking statements.
(ii)
Part I.
Background
Horizon Lines, Inc., a Delaware corporation, (the
Company and together with its subsidiaries,
we) operates as a holding company for Horizon Lines,
LLC (Horizon Lines), a Delaware limited liability
company and wholly-owned subsidiary, Horizon Logistics, LLC
(Horizon Logistics), a Delaware limited liability
company and wholly-owned subsidiary, Horizon Lines of Puerto
Rico, Inc. (HLPR), a Delaware corporation and
wholly-owned subsidiary, and Hawaii Stevedores, Inc.
(HSI), a Hawaii corporation.
Our long operating history dates back to 1956, when
Sea-Land
Service, Inc.
(Sea-Land)
pioneered the marine container shipping industry and established
our business. In 1958 we introduced container shipping to the
Puerto Rico market, and in 1964 we pioneered container shipping
in Alaska with the first year-round scheduled vessel service. In
1987, we began providing container shipping services between the
U.S. west coast and Hawaii and Guam through our acquisition
from an existing carrier of all of its vessels and certain other
assets that were already serving that market. In December 1999,
CSX Corporation, the former parent of
Sea-Land
Domestic Shipping, LLC (SLDS), sold the
international marine container operations of
Sea-Land to
the A.P. Møller Maersk Group (Maersk) and SLDS
continued to be owned and operated by CSX Corporation as CSX
Lines, LLC. On February 27, 2003, Horizon Lines Holding
Corp. (HLHC) (which at the time was indirectly
majority-owned by Carlyle-Horizon Partners, L.P.) acquired from
CSX Corporation, 84.5% of CSX Lines, LLC, and 100% of CSX Lines
of Puerto Rico, Inc., which together with Horizon Logistics and
HSI constitute our business today. CSX Lines, LLC is now known
as Horizon Lines, LLC and CSX Lines of Puerto Rico, Inc. is now
known as Horizon Lines of Puerto Rico, Inc. The Company was
formed as an acquisition vehicle to acquire, on July 7,
2004, the equity interest in HLHC. The Company was formed at the
direction of Castle Harlan Partners IV. L.P. (CHP
IV), a private equity investment fund managed by Castle
Harlan, Inc. (Castle Harlan). In 2005, the Company
completed its initial public offering. Subsequent to the initial
public offering, the Company completed three secondary
offerings, including a secondary offering (pursuant to a shelf
registration) whereby CHP IV and other affiliated private equity
investment funds managed by Castle Harlan divested their
ownership in the Company. Today, as the only Jones Act vessel
operator with one integrated organization serving Alaska, Hawaii
and Puerto Rico, we are uniquely positioned to serve customers
requiring shipping and logistics services in more than one of
these markets.
Recent
Developments
We believe that our financial position will be impacted during
the second and third quarters of 2011. First, we expect that we
will experience a covenant default under the indenture related
to our $330.0 million aggregate principal amount of
4.25% Convertible Senior Notes due 2012 (the
Notes). On March 22, 2011, the Court entered a
judgment against us whereby we are required to pay a fine of
$45.0 million to resolve the investigation by the
U.S. Department of Justice into our domestic ocean shipping
business. In March 2011, we solicited consents from the holders
of the Notes to waive the default that may arise in connection
with that judgment. We have until May 21, 2011 to satisfy
the judgment or otherwise cure the default under the indenture
relating to the Notes, and, as of the date of this filing, we
have not been able to obtain a waiver from the holders of the
Notes and do not presently have remedies to cure the default.
Acceleration of all principal and interest may be pursued by the
indenture trustee in the event of default. Should the indenture
trustee pursue an acceleration, such an action would create a
default in our Senior Credit Facility and other loans and
financing arrangements due to cross default provisions contained
in those agreements.
Second, although we amended our Senior Credit Facility in March
2011, we expect to not be in compliance with the revised
covenants beginning in the third quarter of 2011. We expect our
financial
1
results will be negatively impacted by softness in international
rates, as well as by volatile fuel prices and by our ability to
revise fuel surcharges accordingly. Noncompliance with the
financial covenants in the Senior Credit Facility constitutes an
event of default, which, if not waived, could prevent us from
making borrowings under the Senior Credit Facility. We
anticipate working with our lenders to obtain amendments or to
refinance prior to any possible covenant noncompliance; however
we cannot assure you that we will be able to secure such
amendments or a refinancing.
Due to these expected and potential defaults, we have classified
our obligations under the Notes and the Senior Credit Facility
as current liabilities in the accompanying Consolidated Balance
Sheets as of December 26, 2010. Our independent registered
public accounting firm has issued an opinion on our consolidated
financial statements that states the consolidated financial
statements were prepared assuming we will continue as a going
concern and further states that uncertainties regarding our
ability to remain in compliance with certain debt covenants
under our Senior Credit Facility throughout 2011 and our ability
to cure a potential acceleration under our Notes raise
substantial doubt about our ability to continue as a going
concern.
Our ongoing activities to address these matters include, but are
not limited to, working with our lenders to obtain amendments or
waivers and seeking refinancing sources to address our existing
capital structure. We have retained Moelis & Company
as financial advisors to help us in these efforts.
On March 28, 2011, we executed an employment agreement with
Stephen H. Fraser, who began serving as our interim President
and Chief Executive Officer on March 11, 2011. The term of
the agreement is until we appoint a successor president and
chief executive officer, and the agreement may be terminated by
either party upon thirty days written notice. Pursuant to the
terms of the agreement, Mr. Fraser will be entitled to a
salary of $90,000 per month, plus other usual employee benefits
offered to our employees. The agreement also provides that
Mr. Fraser shall be reimbursed for certain transportation
expenses and may elect to be reimbursed for his cost of medical
insurance for himself and his dependents. Mr. Fraser will
continue to serve as a member of our board of directors.
Mr. Fraser will continue to be eligible for compensation
awarded to the board of directors, and the stock ownership
guidelines applicable to board members will continue to be
applicable to him. Mr. Frasers annual cash retainer
for service on the board will be prorated to reflect only the
period which he was a non-employee director. This description of
the employment agreement is not complete and is qualified by its
entirety by the full text of the agreement which is attached
hereto as an exhibit.
On February 23, 2011, we and Charles G. Raymond, our
President and Chief Executive Officer, entered into a Separation
Agreement in connection with Mr. Raymonds retirement.
Under the terms of the Separation Agreement, Mr. Raymond
will receive severance payments over a period of 25 months
totaling approximately $2.3 million. In addition, we will
reimburse Mr. Raymond for premiums related to continued
health coverage under COBRA for the period he and his eligible
dependents are covered under COBRA. Mr. Raymond will also
be entitled to indemnification and the advancement of legal
expenses as provided by our charter and bylaws and any other
applicable documents, and Mr. Raymond has agreed not to
sell any shares of our common stock that he owns for a period of
one year. In addition, the terms of the Separation Agreement
include a non-compete provision for a period of two years.
On February 24, 2011, we announced that our Board of
Directors has named Alex J. Mandl to the position of
non-executive Chairman, succeeding Mr. Raymond.
Additionally, Brian W. Taylor was named Executive Vice President
and Chief Operating Officer (COO), succeeding John V. Keenan,
who has been granted a leave of absence. Mr. Taylor assumes
the COO responsibilities in addition to his current role as
Chief Commercial Officer. At the same time, the Board has
promoted Michael T. Avara from Senior Vice President and Chief
Financial Officer to Executive Vice President and Chief
Financial Officer. All changes were effective March 11,
2011.
2
Operations
We believe that we are the nations leading Jones Act
container shipping and integrated logistics company, accounting
for approximately 36% of total U.S. marine container
shipments from the continental U.S. to Alaska, Puerto Rico
and Hawaii, constituting the three non-contiguous Jones Act
markets; and to Guam, the U.S. Virgin Islands and
Micronesia. We own or lease 20 vessels, 15 of which are
fully qualified Jones Act vessels, and approximately 31,000
cargo containers. We also provide comprehensive shipping and
sophisticated logistics services in our markets, including rail,
trucking, warehousing, distribution, expedited logistics, and
non-vessel operating common carrier (NVOCC)
operations. We have access to terminal facilities in each of our
ports, operating our terminals in Alaska, Hawaii, and Puerto
Rico and contracting for terminal services in the seven ports in
the continental U.S. and in the ports in Guam, and Shanghai
and Ningbo, China.
On December 13, 2010, we commenced our weekly trans-Pacific
liner service between Asia and the U.S. West Coast. Our
Five Star Express (FSX) service connects with our
warehousing and distribution capabilities on the U.S. West
Coast and intermodal rail service to inland destinations to
create an integrated import and export solution. Using scheduled
intermodal service from Los Angeles every week, we offer express
inland service to Kansas City, Dallas, Chicago, Memphis, Atlanta
and Charlotte. During 2011, we expect to expand the inland
express network to other locations throughout the U.S.
We ship a wide spectrum of consumer and industrial items used
every day in our markets, ranging from foodstuffs (refrigerated
and non-refrigerated) to household goods and auto parts to
building materials and various materials used in manufacturing.
Many of these cargos are consumer goods vital to the populations
in our markets, thereby providing us with a relatively stable
base of demand for our shipping and logistics services. We have
many long-standing customer relationships with large consumer
and industrial products companies, such as Costco Wholesale
Corporation, Johnson & Johnson, Lowes Companies,
Inc., Safeway, Inc., and Wal-Mart Stores, Inc. We also serve
several agencies of the U.S. government, including the
Department of Defense and the U.S. Postal Service. Our
customer base is broad and diversified, with our top ten
customers accounting for approximately 40% of revenue and our
largest customer accounting for approximately 9% of revenue.
During the 4th quarter of 2010, we began to review the
appropriate level of performance for our logistics operations.
We have determined to reclassify our logistics operations into
discontinued operations because they qualify as assets held for
sale. Specifically, it was determined that as a result of
several factors, including: 1) the historical operating
losses within the logistics operations, 2) the projected
continuation of operating losses, and 3) focus on the
recently commenced international shipping activities, we would
begin exploring the sale of our logistics operations. The sale
of our logistics operations will not include our Sea-Logix
trucking operation, our warehouse operation or Horizon Services
Group, our information technology operation.
The Jones
Act
During 2010, approximately 83% of our revenues were generated
from our shipping and logistics services in markets where the
marine trade is subject to the coastwise laws of the United
States, also known as the Jones Act, or other U.S. maritime
cabotage laws.
The Jones Act is a long-standing cornerstone of
U.S. maritime policy. Under the Jones Act, all vessels
transporting cargo between covered U.S. ports must, subject
to limited exceptions, be built in the U.S., registered under
the U.S. flag, manned by predominantly U.S. crews, and
owned and operated by
U.S.-organized
companies that are controlled and 75% owned by
U.S. citizens.
U.S.-flagged
vessels are generally required to be maintained at higher
standards than foreign-flagged vessels and are supervised by, as
well as subject to rigorous inspections by, or on behalf of the
U.S. Coast Guard, which requires appropriate certifications
and background checks of the crew members. Our trade routes
between Alaska, Hawaii and Puerto Rico and the continental
U.S. represent the three non-contiguous Jones Act markets.
Vessels operating on these trade routes are
3
required to be fully qualified Jones Act vessels. Other
U.S. maritime laws require vessels operating on the trade
routes between Guam, a U.S. territory, and U.S. ports
to be
U.S.-flagged
and predominantly
U.S.-crewed,
but not
U.S.-built.
Cabotage laws, which reserve the right to ship cargo between
domestic ports to domestic vessels, are not unique to the United
States; similar laws are common around the world and exist in
over 50 countries. In general, all interstate and intrastate
marine commerce within the U.S. falls under the Jones Act,
which is a cabotage law. We believe the Jones Act enjoys broad
support from President Obama and both major political parties in
both houses of Congress. We believe that the ongoing war on
terrorism has further solidified political support for the Jones
Act, as a vital and dedicated U.S. merchant marine is a
cornerstone for a strong homeland defense, as well as a critical
source of trained U.S. mariners for wartime support.
Market Overview
and Competition
The Jones Act distinguishes the U.S. domestic shipping
market from international shipping markets. Given the limited
number of existing Jones Act qualified vessels, the high capital
investment and long delivery lead times associated with building
a new containership in the U.S., the substantial investment
required in infrastructure and the need to develop a broad base
of customer relationships, the markets in which we operate have
been less vulnerable to overcapacity and volatility than
international shipping markets.
To ensure on-time
pick-up and
delivery of cargo, shipping companies must maintain strict
vessel schedules and efficient terminal operations for
expediting the movement of containers in and out of terminal
facilities. The departure and arrival of vessels on schedule is
heavily influenced by both vessel maintenance standards (i.e.,
minimizing mechanical breakdowns) and terminal operating
discipline. Marine terminal gate and yard efficiency can be
enhanced by efficient yard layout, high-quality information
systems, and streamlined gate processes.
The Jones Act markets are not as fragmented as international
shipping markets. We are one of only two major container
shipping operators currently serving the Alaska market, where we
account for approximately 41% of total container loads traveling
from the continental U.S. to Alaska. Horizon Lines and
Totem Ocean Trailer Express, Inc. (TOTE) serve the
Alaska market. We are also only one of two container shipping
companies currently serving the U.S, to Hawaii and Guam markets
with an approximate 36% share of total domestic marine container
shipments from the continental U.S. to these markets. This
percentage reflects 35% and 47% shares of total domestic marine
container shipments from the continental U.S. to Hawaii and
Guam markets, respectively. Horizon Lines and Matson Navigation
Co (Matson) serve the Hawaii and Guam market. The
Pasha Group also serves the Hawaii market with a
roll-on/roll-off vessel. In Puerto Rico, we are the largest
provider of marine container shipping, accounting for
approximately 34% of Puerto Ricos total container loads
from the continental U.S. The Puerto Rico market is
currently served by two containership companies, Horizon Lines
and Sea Star Lines (Sea Star). Sea Star is an
independently operated company majority-owned by an affiliate of
TOTE. Two barge operators, Crowley and Trailer Bridge, Inc.,
also currently serve this market.
The international shipping market is a significantly larger
market than the U.S. domestic shipping market. There are a
significant number of vessels operating between Asia and the
U.S. West Coast. However, recently there has been a
reduction in the number of vessels in layup and an increase in
transported container volumes over the low levels of 2009.
Our specific FSX service provides a niche service that is an
extension of our domestic service in the Pacific. We believe
that we are able to provide various levels of service from
expedited transit to deferred delivery at the most competitive
market rates. Our FSX service should stand out in the
international shipping market because we are able to deliver
eleven day transit from China to the U.S. West Coast,
saving customers approximately 2-3 days of transit time. We
also have smaller vessels and a more rapid throughput process in
Los Angeles and Oakland than many of our competitors which
allows us to move containers through port and into
U.S. distribution networks quickly.
4
Vessel
Fleet
Our management team executes an effective strategy for the
maintenance of our vessels. Early in our
54-year
operating history, when we pioneered Jones Act container
shipping, we recognized the vital importance of maintaining our
valuable Jones Act qualified vessels. Our on-shore vessel
management team carefully manages all of our ongoing regular
maintenance and dry-docking activity.
We maintain our vessels according to our own strict maintenance
procedures, which meet or exceed U.S. government
requirements. All of our vessels are regulated pursuant to
rigorous standards promulgated by the U.S. Coast Guard and
subject to periodic inspection and certification, for compliance
with these standards, by the American Bureau of Shipping, on
behalf of the U.S. Coast Guard. Our procedures protect and
preserve our fleet to the highest standards in our industry and
enable us to preserve the usefulness of our ships. During each
of the last four years, our vessels have been in operational
condition, ready to sail, over 99% of the time when they were
required to be ready to sail.
The table below lists our vessel fleet, which is the largest
containership fleet within the Jones Act markets, as of
December 26, 2010. Our vessel fleet consists of
20 vessels of varying classes and specifications, 15 of
which are fully Jones Act qualified. Of the 16 vessels that
are actively deployed, 11 are Jones Act qualified. Three Jones
Act qualified vessels are spare vessels available for seasonal
and dry-dock needs and to respond to potential new revenue
opportunities. A fourth spare Jones Act qualified vessel could
be available for deployment after undergoing dry-docking for
inspection and maintenance.
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Year
|
|
|
|
Reefer
|
|
Max.
|
|
Owned/
|
|
Charter
|
Vessel Name
|
|
Market
|
|
Built
|
|
TEU(1)
|
|
Capacity(2)
|
|
Speed
|
|
Chartered
|
|
Expiration
|
|
U.S Built Jones Act Qualified
|
Horizon Anchorage
|
|
Alaska
|
|
1987
|
|
1,668
|
|
280
|
|
20.0 kts
|
|
Chartered
|
|
Jan 2015
|
Horizon Tacoma
|
|
Alaska
|
|
1987
|
|
1,668
|
|
280
|
|
20.0 kts
|
|
Chartered
|
|
Jan 2015
|
Horizon Kodiak
|
|
Alaska
|
|
1987
|
|
1,668
|
|
280
|
|
20.0 kts
|
|
Chartered
|
|
Jan 2015
|
Horizon Fairbanks(3)
|
|
Alaska
|
|
1973
|
|
1,476
|
|
140
|
|
22.5 kts
|
|
Owned
|
|
|
Horizon Pacific
|
|
Hawaii & Guam
|
|
1980
|
|
2,407
|
|
150
|
|
21.0 kts
|
|
Owned
|
|
|
Horizon Enterprise
|
|
Hawaii & Guam
|
|
1980
|
|
2,407
|
|
150
|
|
21.0 kts
|
|
Owned
|
|
|
Horizon Spirit
|
|
Hawaii & Guam
|
|
1980
|
|
2,653
|
|
150
|
|
22.0 kts
|
|
Owned
|
|
|
Horizon Reliance
|
|
Hawaii & Guam
|
|
1980
|
|
2,653
|
|
156
|
|
22.0 kts
|
|
Owned
|
|
|
Horizon Producer
|
|
Puerto Rico
|
|
1974
|
|
1,751
|
|
170
|
|
22.0 kts
|
|
Owned
|
|
|
Horizon Challenger
|
|
Puerto Rico
|
|
1968
|
|
1,424
|
|
71
|
|
21.2 kts
|
|
Owned
|
|
|
Horizon Navigator
|
|
Puerto Rico
|
|
1972
|
|
2,386
|
|
190
|
|
21.0 kts
|
|
Owned
|
|
|
Horizon Trader
|
|
Puerto Rico
|
|
1973
|
|
2,386
|
|
190
|
|
21.0 kts
|
|
Owned
|
|
|
Horizon Discovery(4)
|
|
|
|
1968
|
|
1,442
|
|
100
|
|
21.2 kts
|
|
Owned
|
|
|
Horizon Consumer(4)
|
|
|
|
1973
|
|
1,751
|
|
170
|
|
22.0 kts
|
|
Owned
|
|
|
Horizon Hawaii(4)
|
|
|
|
1973
|
|
1,420
|
|
170
|
|
22.5 kts
|
|
Owned
|
|
|
Foreign Built Non-Jones Act Qualified
|
Horizon Hunter
|
|
Transpacific
|
|
2006
|
|
2,824
|
|
566
|
|
23.0 kts
|
|
Chartered
|
|
Nov 2018
|
Horizon Hawk
|
|
Transpacific
|
|
2007
|
|
2,824
|
|
566
|
|
23.0 kts
|
|
Chartered
|
|
Mar 2019
|
Horizon Tiger
|
|
Transpacific
|
|
2006
|
|
2,824
|
|
566
|
|
23.0 kts
|
|
Chartered
|
|
May 2019
|
Horizon Eagle
|
|
Transpacific
|
|
2007
|
|
2,824
|
|
566
|
|
23.0 kts
|
|
Chartered
|
|
Apr 2019
|
Horizon Falcon
|
|
Transpacific
|
|
2007
|
|
2,824
|
|
566
|
|
23.0 kts
|
|
Chartered
|
|
Apr 2019
|
|
|
|
(1) |
|
Twenty-foot equivalent unit, or TEU, is a standard measure of
cargo volume correlated to the volume of a standard 20-foot dry
cargo container. |
5
|
|
|
(2) |
|
Reefer capacity, or refrigerated container capacity, refers to
the total number of 40-foot equivalent units, or FEUs, which the
vessel can hold. The FEU is a standard measure of refrigerated
cargo volume correlated to the volume of a standard 40-foot
reefer, or refrigerated cargo container. |
|
(3) |
|
Serves as a spare vessel available for deployment in any of our
markets and seasonal operation in the Alaska trade. |
|
(4) |
|
Vessels are available for seasonal needs, dry-dock relief and to
respond to potential new revenue opportunities, and thus are not
specific to any given market. Horizon Hawaii must undergo
inspection and maintenance (dry-docking) in order to be
available for deployment. Given current economic conditions, and
if the new revenue opportunities fail to materialize, we may
make a decision to scrap one of more of the spare vessels. |
Vessel
Charters
Eight of our vessels, the Horizon Anchorage, Horizon Tacoma,
Horizon Kodiak, Horizon Hunter, Horizon Hawk, Horizon Eagle,
Horizon Falcon and Horizon Tiger are leased, or chartered. The
charters for the Horizon Anchorage, Horizon Tacoma, and Horizon
Kodiak are due to expire in January 2015, for the Horizon Hunter
in 2018 and for the Horizon Hawk, Horizon Eagle, Horizon Falcon
and Horizon Tiger in 2019. Under the charter for each chartered
vessel, we generally have the following options in connection
with the expiration of the charter: (i) purchase the vessel
for its fair market value, (ii) extend the charter for an
agreed upon period of time at a fair market value charter rate
or, (iii) return the vessel to its owner.
The obligations under the existing charters for the Horizon
Anchorage, Horizon Tacoma and Horizon Kodiak are guaranteed by
our former parent, CSX Corporation, and certain of its
affiliates. In turn, certain of our subsidiaries are parties to
the Amended and Restated Guarantee and Indemnity Agreement,
referred to herein as the GIA, with CSX Corporation and certain
of its affiliates, pursuant to which these subsidiaries have
agreed to indemnify these CSX entities if any of them should be
called upon by any owner of the chartered vessels to make
payments to such owner under the guarantees referred to above.
Container
Fleet
As summarized in the table below, our container fleet as of
December 26, 2010 consists of owned and leased containers
of different types and sizes. All but one of our container
leases are operating leases.
6
|
|
|
|
|
|
|
|
|
|
|
|
|
Container Type
|
|
Owned
|
|
|
Leased
|
|
|
Combined
|
|
|
20 Standard Dry
|
|
|
10
|
|
|
|
1,053
|
|
|
|
1,063
|
|
20 Flat Rack
|
|
|
1
|
|
|
|
|
|
|
|
1
|
|
20 High-Cube Reefer
|
|
|
72
|
|
|
|
|
|
|
|
72
|
|
20 Miscellaneous
|
|
|
66
|
|
|
|
|
|
|
|
66
|
|
20 Tank
|
|
|
1
|
|
|
|
1
|
|
|
|
2
|
|
40 Standard Dry
|
|
|
57
|
|
|
|
2,573
|
|
|
|
2,630
|
|
40 Flat Rack
|
|
|
111
|
|
|
|
598
|
|
|
|
709
|
|
40 High-Cube Dry
|
|
|
1,267
|
|
|
|
11,801
|
|
|
|
13,068
|
|
40 Standard Insulated
|
|
|
13
|
|
|
|
|
|
|
|
13
|
|
40 High-Cube Insulated
|
|
|
370
|
|
|
|
|
|
|
|
370
|
|
40 Standard Opentop
|
|
|
|
|
|
|
59
|
|
|
|
59
|
|
40 Miscellaneous
|
|
|
57
|
|
|
|
|
|
|
|
57
|
|
40 Tank
|
|
|
1
|
|
|
|
|
|
|
|
1
|
|
40 Car Carrier
|
|
|
165
|
|
|
|
|
|
|
|
165
|
|
40 High-Cube Reefer
|
|
|
1,952
|
|
|
|
3,635
|
|
|
|
5,587
|
|
45 High-Cube Dry
|
|
|
1,094
|
|
|
|
4,962
|
|
|
|
6,056
|
|
45 High-Cube Flatrack
|
|
|
|
|
|
|
25
|
|
|
|
25
|
|
45 High-Cube Insulated
|
|
|
469
|
|
|
|
|
|
|
|
469
|
|
45 High-Cube Reefer
|
|
|
|
|
|
|
325
|
|
|
|
325
|
|
48 High-Cube Dry
|
|
|
238
|
|
|
|
|
|
|
|
238
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total
|
|
|
5,944
|
|
|
|
25,032
|
|
|
|
30,976
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
In connection with the expiration of our equipment sharing
agreements with Maersk, we increased the quantity of containers
in preparation of the launch of our FSX service.
Maersk
Arrangements
In connection with the sale of the international marine
container operations of
Sea-Land by
our former parent, CSX Corporation, to Maersk, in December 1999,
our predecessor, CSX Lines, LLC and certain of its subsidiaries
entered into a number of commercial agreements with various
Maersk entities that encompassed terminal services, equipment
sharing, sales agency services, trucking services, cargo space
charters, and transportation services. Certain of these
agreements expired at the end of 2010. Maersk continues to serve
as our terminal service provider in the continental U.S., at our
ports in Elizabeth, New Jersey, Jacksonville, Florida, Houston,
Texas, Los Angeles, California, and Tacoma, Washington. We are
Maersks terminal operator in Alaska and Puerto Rico.
Certain equipment sharing agreements, sales agency agreements
and the TP1 Space Charter and Transportation Service Contract
with Maersk expired in December 2010.
Under our previous cargo space charter and transportation
service agreements with Maersk, we utilized Maersk containers to
carry a portion of our cargo westbound to Hawaii and Guam, where
the contents of the containers were unloaded. We shipped the
empty containers to Yantian and Xiamen, China and Kaohsiung,
Taiwan. When the vessels arrived in Asia, Maersk unloaded the
empty containers and replaced them with loaded containers for
the return trip to the U.S. west coast. We achieved
significantly greater vessel capacity utilization and revenue on
this route as a result of this arrangement. We also used Maersk
equipment on our service to Hawaii from our U.S. west coast
ports, as well as from select U.S. inland locations.
7
Capital
Construction Fund
The Merchant Marine Act, 1936, as amended, permits the limited
deferral of U.S. federal income taxes on earnings from
eligible
U.S.-built
and
U.S.-flagged
vessels and
U.S.-built
containers if the earnings are deposited into a Capital
Construction Fund (CCF), pursuant to an agreement
with the U.S. Maritime Administration, (MARAD).
Any amounts deposited in a CCF can be withdrawn and used for the
acquisition, construction or reconstruction of
U.S.-built
and
U.S.-flagged
vessels or
U.S.-built
containers.
Horizon Lines has a CCF agreement with MARAD under which it
occasionally deposits earnings attributable to the operation of
its Jones Act qualified vessels into the CCF and makes
withdrawals of funds from the CCF to acquire
U.S.-built
and
U.S.-flagged
vessels. From
2003-2005,
Horizon Lines utilized CCF deposits totaling $50.4 million
to acquire six
U.S.-built
and
U.S.-flagged
vessels (Horizon Enterprise, Horizon Pacific, Horizon Hawaii,
Horizon Fairbanks, Horizon Navigator, and Horizon Trader).
Any amounts deposited in a CCF cannot be withdrawn for other
than the qualified purposes specified in the CCF agreement. Any
nonqualified withdrawals are subject to federal income tax at
the highest marginal rate. In addition, such tax is subject to
an interest charge based upon the number of years the funds have
been on deposit. If Horizon Lines CCF agreement was
terminated, funds then on deposit in the CCF would be treated as
nonqualified withdrawals for that taxable year. In addition, if
a vessel built, acquired, or reconstructed with CCF funds is
operated in a nonqualified operation, the owner must repay a
proportionate amount of the tax benefits as liquidated damages.
These restrictions apply (i) for 20 years after
delivery in the case of vessels built with CCF funds,
(ii) ten years in the case of vessels reconstructed or
acquired with CCF funds more than one year after delivery from
the shipyard, and (iii) ten years after the first
expenditure of CCF funds in the case of vessels in regard to
which qualified withdrawals from the CCF fund have been made to
pay existing indebtedness (five years if the vessels are more
than 15 years old on the date the withdrawal is made). In
addition, the sale or mortgage of a vessel acquired with CCF
funds requires MARADs approval. Our consolidated balance
sheets at December 26, 2010 and December 20, 2009
include liabilities of approximately $14.8 million and
$14.2 million, respectively, for deferred taxes on deposits
in our CCF.
Sales and
Marketing
We manage a sales and marketing team of 113 employees
strategically located in our various ports, as well as in five
regional offices across the continental U.S., including from our
headquarters in Charlotte, North Carolina and from Compton,
California and Jacksonville, Florida. Senior sales and marketing
professionals are responsible for developing sales and marketing
strategies and are closely involved in servicing our largest
customers. All pricing activities are also coordinated from
Charlotte, Irving, Texas, and from Renton, Washington, enabling
us to manage our customer relationships. The marketing team
located in Charlotte is responsible for providing appropriate
market intelligence and direction to the Puerto Rico sales
organization. The marketing team located in Renton is
responsible for providing appropriate market intelligence and
direction to the members of the team who focus on the Hawaii,
Guam and Alaska markets. The teams in Charlotte and Dallas are
also responsible for providing market intelligence related to
our FSX service.
Our regional sales and marketing presence ensures close and
direct interaction with customers on a daily basis. Many of our
regional sales professionals have been servicing the same
customers for over ten years. We believe that we have the
largest sales force of all container shipping and logistics
companies active in our domestic markets. We believe that the
breadth and depth of our relationships with our customers is the
principal driver of repeat business from our customers.
8
Customers
We serve a diverse base of long-standing, established customers
consisting of many of the worlds largest consumer and
industrial products companies. Such customers include Costco
Wholesale Corporation, Johnson & Johnson, Lowes
Companies, Inc., Safeway, Inc., and Wal-Mart Stores, Inc. In
addition, we serve several agencies of the U.S. government,
including the Department of Defense and the U.S. Postal
Service.
We believe that we are uniquely positioned to serve these and
other large national customers due to our position as the only
shipping and integrated logistics company serving all three
non-contiguous Jones Act markets, as well as Guam and Asia.
Approximately 56% of our transportation revenue in 2010 was
derived from customers shipping with us in more than one of our
markets and approximately 36% of our transportation revenue in
2010 was derived from customers shipping with us in all three
domestic markets.
We generate most of our revenue through customer contracts with
specified rates and volumes, and with durations ranging from one
to six years, providing stable revenue streams. The majority of
our customer contracts contain provisions that allow us to
implement fuel surcharges based on fluctuations in our fuel
costs. In addition, our relationships with many of our customers
extend far beyond the length of any given contract. For example,
some of our customer relationships extend back over
40 years and our top ten customer relationships average
32 years.
We serve customers in numerous industries and carry a wide
variety of cargos, mitigating our dependence upon any single
customer or single type of cargo. For 2010, our top ten largest
customers represented approximately 36% of transportation
revenue, with the largest customer accounting for approximately
9% of transportation revenue. During 2010, our top ten largest
customers comprised approximately 40% of total revenue, with our
largest customer accounting for approximately 9% of total
revenue. Total revenue includes transportation,
non-transportation and other revenue.
Industry and market data used throughout this
Form 10-K,
including information relating to our relative position in the
shipping and logistics industries are approximations based on
the good faith estimates of our management. These estimates are
generally based on internal surveys and sources, and other
publicly available information, including local port
information. Unless otherwise noted, financial, industry and
market data presented herein are for the period ending in
December 2010.
Operations
Overview
Our operations share corporate and administrative functions such
as finance, information technology, human resources, legal, and
sales and marketing. Centralized functions are performed
primarily at our Charlotte headquarters and at our operations
center in Irving.
We book and monitor all of our shipping and logistics services
with our customers through the Horizon Information Technology
System (HITS). HITS, our proprietary ocean shipping
and logistics information technology system, provides a platform
to execute a shipping transaction from start to finish in a
cost-effective, streamlined manner. HITS provides an extensive
database of information relevant to the shipment of
containerized cargo and captures all critical aspects of every
shipment booked with us. In addition, HITS supports a wide
variety of our logistics services including
less-than-truckload
(LTL), full truckload (FTL), NVOCC, air freight, expedited
ground and warehousing. In a typical transaction, our customers
go on-line to book a shipment or call, fax or
e-mail our
customer service department. Once applicable shipping
information is input into the booking system, a booking number
is generated. The booking information then downloads into other
systems used by our dispatch team, terminal personnel, vessel
planners, documentation team, logistics team and other teams and
personnel who work together to produce a seamless transaction
for our customers.
We strive to minimize our empty repositioning costs. Our
dispatch team coordinates truck
and/or rail
shipping between inland locations and ports on intermodal
bookings. We currently purchase rail
9
services directly from the railroads involved through
confidential transportation service contracts. Our terminal
personnel schedule equipment availability for containers picked
up at the port. Our vessel planners develop stowage plans and
our documentation teams process the cargo bill. We review space
availability and inform our other teams and personnel when
additional bookings are required and when bookings need to be
changed or pushed to the next vessel. After containers arrive at
the port of origin, they are loaded on board the vessel. Once
the containers are loaded and are at sea, our destination
terminal staff initiates their process of receiving and
releasing containers to our customers. Customers accessing HITS
via our internet portal have the option to receive
e-mail
alerts as specific events take place throughout this process.
All of our customers have the option to call our customer
service department or to access HITS via our internet portal,
24 hours a day, seven days a week, to track and trace
shipments. Customers may also view their payment histories and
make payments on-line.
Insurance
We maintain insurance policies to cover risks related to
physical damage to our vessels and vessel equipment, other
equipment (including containers, chassis, terminal equipment and
trucks) and property, as well as with respect to third-party
liabilities arising from the carriage of goods, the operation of
vessels and shoreside equipment, and general liabilities which
may arise through the course of our normal business operations.
We also maintain workers compensation insurance, business
interruption insurance, and directors and officers
insurance providing indemnification for our directors, officers,
and certain employees for some liabilities.
Security
Heightened awareness of maritime security needs, brought about
by the events of September 11, 2001 and numerous maritime
piracy attacks around the globe, have caused the United Nations
through its International Maritime Organization
(IMO), the U.S. Department of Homeland
Security, through its Coast Guard, and the states and local
ports to adopt a more stringent set of security procedures
relating to the interface between port facilities and vessels.
In addition, the U.S. Congress has enacted legislation
requiring the implementation of Coast Guard approved vessel and
facility security plans.
Certain aspects of our security plans require our investing in
infrastructure upgrades to ensure compliance. We have applied in
the past and will continue to apply going forward for federal
grants to offset the incremental expense of these security
investments. While we were successful through two early rounds
of funding to secure substantial grants for specific security
projects, the current grant award criteria favor the largest
ports and stakeholder consortia applications, limiting the
available funds for standalone private maritime industry
stakeholders. In addition, the current administration is
continuously reviewing the criteria for awarding such grants.
Such changes could have a negative impact on our ability to win
grant funding in the future. Security surcharges are evaluated
regularly and we may at times incorporate these surcharges into
the base transportation rates that we charge.
Employees
As of December 26, 2010, we had 1,890 employees, of
which approximately 1,267 were represented by seven labor unions.
In an effort to continue to effectively manage costs, during the
fourth quarter of 2010 the Company initiated a plan to reduce
its non-union workforce by approximately 10%, or 65 positions.
The Company substantially completed the workforce reduction
initiative on January 31, 2011 by eliminating a total of 64
positions, including 35 existing and 29 open positions. A
restructuring charge of $2.1 million related to this
reduction in workforce has been recorded during the year ended
December 26, 2010.
10
The table below sets forth the unions which represent our
employees, the number of employees represented by these unions
as of December 26, 2010 and the expiration dates of the
related collective bargaining agreements:
|
|
|
|
|
|
|
|
|
|
|
Number of
|
|
|
Collective Bargaining
|
|
Our
|
|
|
Agreement(s)
|
|
Employees
|
Union
|
|
Expiration Date
|
|
Represented
|
|
International Brotherhood of Teamsters
|
|
March 31, 2013
|
|
|
254
|
|
International Brotherhood of Teamsters, Alaska
|
|
June 30, 2011
|
|
|
110
|
|
International Longshore & Warehouse Union (ILWU)
|
|
July 1, 2014
|
|
|
210
|
|
International Longshore and Warehouse Union, Alaska (ILWU-Alaska)
|
|
June 30, 2011
|
|
|
99
|
|
International Longshoremens Association, AFL-CIO (ILA)
|
|
September 30, 2012
|
|
|
|
(1)
|
International Longshoremens Association, AFL-CIO, Puerto
Rico
|
|
September 30, 2012
|
|
|
86
|
|
Marine Engineers Beneficial Association (MEBA)
|
|
June 15, 2017
|
|
|
105
|
|
International Organization of Masters, Mates & Pilots,
AFL-CIO (MMP)
|
|
June 15, 2017
|
|
|
68
|
|
Office & Professional Employees International Union,
AFL-CIO
|
|
November 9, 2012
|
|
|
59
|
|
Seafarers International Union (SIU)
|
|
June 30, 2011
|
|
|
276
|
|
|
|
|
(1) |
|
Multi-employer arrangement representing workers in the industry,
including workers who may perform services for us but are not
our employees. |
The table below provides a breakdown of headcount by
non-contiguous Jones Act market and function for our non-union
employees as of December 26, 2010.
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Hawaii
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
and
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Alaska
|
|
|
Guam
|
|
|
Puerto Rico
|
|
|
Horizon
|
|
|
|
|
|
|
|
|
|
Market
|
|
|
Market
|
|
|
Market
|
|
|
Logistics
|
|
|
Corporate(a)
|
|
|
Total
|
|
|
Senior Management
|
|
|
1
|
|
|
|
1
|
|
|
|
1
|
|
|
|
3
|
|
|
|
11
|
|
|
|
17
|
|
Operations
|
|
|
33
|
|
|
|
88
|
|
|
|
46
|
|
|
|
66
|
|
|
|
28
|
|
|
|
261
|
|
Sales and Marketing
|
|
|
16
|
|
|
|
26
|
|
|
|
51
|
|
|
|
13
|
|
|
|
7
|
|
|
|
113
|
|
Administration(b)
|
|
|
3
|
|
|
|
34
|
|
|
|
8
|
|
|
|
14
|
|
|
|
173
|
|
|
|
232
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total Headcount
|
|
|
53
|
|
|
|
149
|
|
|
|
106
|
|
|
|
96
|
|
|
|
219
|
|
|
|
623
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(a) |
|
Corporate headcount includes employees in both Charlotte, North
Carolina (headquarters) and in Irving, Texas and other locations. |
|
(b) |
|
Administration headcount is comprised of back-office functions
and also includes customer service and documentation. |
Environmental
Initiatives
We strive to support our commitment to protect the environment
with programs that promote best practices in environmental
stewardship. During 2008, we launched our Horizon Green
initiative. Through our Horizon Green initiative, we strive to
better understand and measure our impact on the environment, and
to develop programs that incorporate environmental stewardship
into our core operations. Within the Horizon Green initiative,
we are addressing four key areas:
Marine
Environment
To protect the marine environment, we have established several
programs, including vessel management controls and audits,
ballast water management, waste stream analyses, low sulfur
diesel fuel usage and marine terminal pollution mitigation
plans. In addition, we are required to comply with
11
the MARPOL Convention (International Convention for the
Prevention of Pollution from Ships) and ISM Code (International
Safety Management Code) created by the IMO.
Emissions
We are focused on reducing transportation emissions, including
carbon dioxide, particulates, nitrous oxides and sulfur dioxide,
through improvements in vessel fuel consumption and truck
efficiency combined with the use of alternative fuels and more
efficient transportation alternatives, such as coastwise
shipping.
Sustainability
We believe in a long-term, sustainable approach to logistics
management which will benefit the Company, its associates,
customers, shareholders and the community. Examples include
reducing empty backhaul miles through logistics network
optimization, reduced fossil fuel consumption and using recycled
materials to build containers.
Carbon
Offsets
Freight shipping is one of the worlds leading sources of
carbon dioxide emissions that contribute to global climate
change. To address this challenge together with our customers,
Horizon Logistics has introduced a new carbon offset shipping
program, developed by our custom delivery and special handling
division. The carbon offset program offers customers a
carbon-neutral shipping solution through which retailers and
manufacturers can purchase environmental credits that fund
carbon offset programs, such as forestation and alternative
energy projects.
Available
Information
The mailing address of the Companys Executive Office is
4064 Colony Road, Suite 200, Charlotte, North Carolina
28211 and the telephone number at that location is
(704) 973-7000.
The Companys most recent SEC filings can be found on the
SECs website, www.sec.gov, and on the Companys
website, www.horizonlines.com. The Companys 2010 annual
report on
Form 10-K
will be available on the Companys website as soon as
reasonably practicable. All such filings are available free of
charge. The contents of our website are not incorporated by
reference into this
Form 10-K.
The public may read and copy any materials the Company files
with the SEC at the SECs Public Reference Room at
100 F Street, NE, Washington, DC 20549. The public may
obtain information on the operation of the Public Reference Room
by calling
1-800-SEC-0330.
We expect to
be in covenant default under our outstanding $330.0 million
aggregate principal amount of 4.25% Convertible Senior
Notes due 2012 (the Notes) during the second fiscal
quarter of 2011. In addition, we expect to be in covenant
default under our Senior Credit Facility during the third
quarter of 2011. If we are unable to return to compliance, the
indenture trustee for the Notes and our lenders under the Senior
Credit Facility may exercise remedies that would have a material
adverse effect on us and our shareholders.
On May 21, 2011, we expect to be in covenant default under
the indenture relating to our Notes. In addition, we expect that
we will be in covenant default under our Senior Credit Facility
during the third quarter of 2011. The remedies available to the
indenture trustee in the event of default include acceleration
of all principal and interest payments. Acceleration by the
indenture trustee would create a default in our Senior Credit
Facility and other loans and financing arrangements due to cross
default provisions contained in those agreements. If any of our
lenders or the indenture trustee accelerate the principal and
interest payments we may be forced to seek protection under
federal bankruptcy laws. Such relief would materially and
adversely affect us and our shareholders.
12
We are
currently in discussions with our lenders to implement a
restructuring of our financial obligations, including waivers of
expected defaults. There can be no assurance that these efforts
will be successful and we could be forced to seek reorganization
under federal bankruptcy laws.
As of December 26, 2010, we had an aggregate of
approximately $523.8 million principal amount in
convertible senior notes, term loans and revolving credit
facility that must be repaid, renewed or extended by
August 15, 2012. As of the date of this filing, the
principal amount in convertible senior notes, term loans and
revolving credit facility has increased to $576.6 million.
The maturity of the term loan and revolving credit facility will
accelerate to February 15, 2012 if the convertible notes
are not refinanced or an acceptable plan to refinance is not in
place by that date. We expect to be in default under our Notes
and our Senior Credit Facility commencing the second and third
quarters of 2011, respectively. In addition, we have significant
indebtedness coming due in 2012 if not accelerated prior to the
maturity or in 2011 if accelerated prior to maturity.
We are seeking waivers with respect to our expected defaults and
are seeking to restructure our financial obligations in order to
preserve our liquidity and enable us to continue operating.
However, there can be no assurance that waivers will be received
or that our obligations will be restructured. If the waivers are
not cured within applicable time periods, if any, and if waivers
or other relief are not obtained, we could be forced to seek
reorganization under federal bankruptcy laws.
Our Cash Flows
and Capital Resources May Be Insufficient to Make Required
Payments on Our Substantial Indebtedness and Future
Indebtedness.
As of December 26, 2010, on a consolidated basis, we had
(i) $523.8 million of outstanding funded long-term
debt (exclusive of capital lease obligations of
$9.2 million and outstanding letters of credit with an
aggregate face amount of $11.3 million),
(ii) approximately $229.6 million of aggregate trade
payables, accrued liabilities and other balance sheet
liabilities (other than the long-term debt referred to above)
and (iii) a funded
debt-to-equity
ratio of approximately 13.2:1.0.
Because we have substantial debt, we require significant amounts
of cash to fund our debt service obligations. Our ability to
generate cash to meet scheduled payments or to refinance our
obligations with respect to our debt depends on our financial
and operating performance which, in turn, is subject to
prevailing economic and competitive conditions and to the
following financial and business factors, some of which may be
beyond our control:
|
|
|
|
|
operating difficulties;
|
|
|
|
increased operating costs;
|
|
|
|
increased fuel costs;
|
|
|
|
general economic conditions;
|
|
|
|
decreased demand for our services;
|
|
|
|
market cyclicality;
|
|
|
|
tariff rates;
|
|
|
|
prices for our services;
|
|
|
|
the actions of competitors;
|
|
|
|
regulatory developments; and
|
|
|
|
delays in implementing strategic projects.
|
If our cash flow and capital resources are insufficient to fund
our debt service obligations, we could face substantial
liquidity problems and might be forced to reduce or delay
capital expenditures, dispose of material assets or operations,
seek to obtain additional equity capital, or restructure or
13
refinance our indebtedness. Such alternative measures may not be
successful and may not permit us to meet our scheduled debt
service obligations. In particular, in the event that we are
required to dispose of material assets or operations to meet our
debt service obligations, we cannot be sure as to the timing of
such dispositions or the proceeds that we would realize from
those dispositions. The value realized from such dispositions
will depend on market conditions and the availability of buyers,
and, consequently, any such disposition may not, among other
things, result in sufficient cash proceeds to repay our
indebtedness. Also, the senior credit facility contains
covenants that may limit our ability to dispose of material
assets or operations or to restructure or refinance our
indebtedness. Further, we cannot provide assurance that we will
be able to restructure or refinance any of our indebtedness or
obtain additional financing, given the uncertainty of prevailing
market conditions from time to time, our high levels of
indebtedness and the various debt incurrence restrictions
imposed by the senior credit facility. If we are able to
restructure or refinance our indebtedness or obtain additional
financing, the economic terms on which such indebtedness is
restructured, refinanced or obtained may not be favorable to us.
We may incur substantial indebtedness in the future. The terms
of the senior credit facility permit us to incur or guarantee
additional indebtedness under certain circumstances. As of
December 26, 2010, we had approximately $62.4 million
of effective borrowing availability under the revolving credit
facility, subject to compliance with the financial and other
covenants and the other terms set forth therein. Our incurrence
of additional indebtedness would intensify the risk that our
future cash flow and capital resources may not be sufficient for
payments of interest on and principal of our substantial
indebtedness.
Our
Substantial Indebtedness and Future Indebtedness Could
Significantly Impair Our Operating and Financial
Condition.
The required payments on our substantial indebtedness and future
indebtedness, as well as the restrictive covenants contained in
the senior credit facility could significantly impair our
operating and financial condition. Because of our substantial
fixed costs combined with our substantial indebtedness, a
decrease in revenues results in a disproportionately greater
percentage decrease in earnings and affects our ability to
comply with the covenants in our revolving credit facility.
In addition, these required payments and restrictive covenants
could:
|
|
|
|
|
make it difficult for us to satisfy our debt obligations;
|
|
|
|
make us more vulnerable to general adverse economic and industry
conditions;
|
|
|
|
limit our ability to obtain additional financing for working
capital, capital expenditures, acquisitions and other general
corporate requirements;
|
|
|
|
expose us to interest rate fluctuations because the interest
rate on the debt under our revolving credit facility is variable;
|
|
|
|
require us to dedicate a substantial portion of our cash flow
from operations to payments on our debt, thereby reducing the
availability of our cash flow for operations and other purposes;
|
|
|
|
limit our flexibility in planning for, or reacting to, changes
in our business and the industry in which we operate; and
|
|
|
|
place us at a competitive disadvantage compared to competitors
that may have proportionately less debt.
|
We may incur substantial indebtedness in the future. Our
incurrence of additional indebtedness would intensify the risks
described above.
14
If We do not
Meet the New York Stock Exchange Continued Listing Requirements,
Our Common Stock May be Delisted, and We May be Required to
Repurchase or Refinance Our 4.25% Convertible Notes Due
2012.
In order to maintain our listing on the New York Stock Exchange
(NYSE), we must continue to meet the NYSE minimum
share price listing rule, the minimum market capitalization rule
and other continued listing criteria. If our common stock were
delisted, it could (i) reduce the liquidity and market
price of our common stock; (ii) negatively impact our
ability to raise equity financing and access the public capital
markets; and (iii) materially adversely impact our results
of operations and financial condition. In addition, if our
common stock is not listed on the NYSE or another national
exchange, holders of our 4.25% convertible notes due 2012 will
be entitled to require us to repurchase their convertible notes.
Our senior secured credit facility provides that the occurrence
of this repurchase right constitutes a default under such
facility.
Further
issuances of our common stock could be dilutive.
We may issue additional shares of our common stock, or other
securities convertible into our common stock, to repay our
existing indebtedness or for working capital. If we issue
additional shares of our common stock in the future, it may have
a dilutive effect on the ownership interests of our existing
shareholders.
We Pled Guilty
to a Charge of Violating Federal Antitrust Laws and are Subject
to a Material Criminal Penalty That May Have a Material Adverse
Effect on Our Business.
On April 17, 2008, we received a federal grand jury
subpoena and search warrant from the U.S. District Court
for the Middle District of Florida seeking information regarding
an investigation by the Antitrust Division of the DOJ into
possible antitrust violations in the domestic ocean shipping
business. On February 23, 2011, we entered into a plea
agreement with the Antitrust Division of the
U.S. Department of Justice whereby we agreed to plead
guilty to a charge of violating federal antitrust laws solely
with respect to the Puerto Rico tradelane and agreed to pay a
fine of $45.0 million over five years without interest. The
fine is payable over a five-year period as follows:
$1.0 million within 30 days after imposition of the
sentence by the court, $1.0 million on the first
anniversary thereafter, $3.0 million on the second
anniversary, $5.0 million on the third anniversary,
$15.0 million on the fourth anniversary, and
$20.0 million on the fifth anniversary. The payment of the
fine may have a substantial and material effect on our financial
position, liquidity and cash flow.
Numerous
Purported Class Action Lawsuits Related to the Subject of
the Antitrust Investigations Have Been Filed Against Us and We
May Be Subject to Civil Liabilities.
Subsequent to the commencement of the DOJ investigation,
fifty-eight purported class action lawsuits were filed against
us and other domestic shipping carriers by direct purchasers
alleging price-fixing in violation of the Sherman Act. The
complaints seek treble monetary damages, costs, attorneys
fees, and an injunction against the allegedly unlawful conduct.
Thirty-two of the federal cases have been consolidated by the
Judicial Panel on Multidistrict Litigation in the District of
Puerto Rico and relate to the Puerto Rico tradelane. A similar
complaint was filed in Duval County, Florida, against us and
other domestic shipping carriers by a customer alleging
price-fixing in violation of the Florida Antitrust Act and the
Florida Deceptive and Unlawful Trade Practices Act.
In connection with the Puerto Rico multidistrict litigation
(MDL), we have entered into a class action
settlement, subject to final court approval, and have agreed to
pay $20.0 million and to certain base-rate freezes. We have
paid $10.0 million into an escrow account pursuant to the
terms of the settlement agreement. We cannot predict or
determine the timing or final outcomes of the settlement or the
lawsuits and are unable to estimate the amount or range of loss
that could result from unfavorable outcomes but, adverse results
in some or all of these legal proceedings could be material to
our results of operations, financial condition or cash flows.
15
A securities class action lawsuit was filed in the District of
Delaware against us. The lawsuit alleges that the defendants
made material misrepresentations and omissions, including with
respect to the alleged price-fixing and violations of the
Sherman Act, causing the plaintiffs to pay inflated prices for
our shares. The securities litigation seeks unspecified monetary
damages, among other things. If we are required to make a
payment as a result of a judgment in the securities litigation,
it could have a material adverse impact on our financial
condition, cash flows or results of operations.
We may be
required to make significant payments to customers in connection
with antitrust-related proceedings.
Several customers have elected to opt-out of the Puerto Rico
settlement, and those customers may file lawsuits containing
allegations similar to those made in the putative class actions
and seek the same type of damages under the Sherman Act as
sought in the putative class actions. We may be required to make
payments in settlement or as a result of a final judgment to
entities that may commence proceedings against us in amounts
that are not determinable. The existence of these proceedings
also could have a material adverse affect on our ability to
access the capital markets to raise additional funds to
refinance indebtedness or for other purposes. Therefore, claims
against us and any future claims could have a material adverse
impact on our financial condition, cash flows or results of
operations. We are not able to determine whether or not any
actions will be brought against us or whether or not a negative
outcome would be probable if brought against us, or a reasonable
range for any such outcome, and have made no provisions for any
potential proceedings in our financial statements. Given the
volume of commerce involved in the Puerto Rico shipping
business, an adverse ruling in a potential civil antitrust
proceeding could subject us to substantial civil damages given
the treble damages provisions of the Sherman Act.
In addition, we have actively engaged in discussions with a
number of our customers regarding the subject matter of the DOJ
investigations. We have reached commercial agreements or are
seeking to renew commercial agreements with certain of our major
customers, with the condition that the customer relinquishes all
claims arising out of the matters that are the subject of the
antitrust investigations. In some cases, we have agreed to, or
are seeking to agree to, future discounts. Any potential future
discounts would be charged against operating revenue if and when
the discount is earned and certain other criteria are met. It is
possible that we will be required to enter into similar
arrangements to settle other existing and potential antitrust
claims, and these discounts may have a material adverse effect
on our financial condition or results of operations.
We have
Incurred Significant Costs in Connection with the
Antitrust-Related Proceedings and Any Additional Costs May Have
a Material Adverse Effect on Our Financial Condition, Liquidity
and Cash Flow.
We have incurred legal fees and costs for antitrust-related
investigations and legal proceedings of $5.2 million in
fiscal year 2010, $12.2 million in fiscal year 2009 and
$10.7 million in fiscal year 2008. In addition to expenses
incurred for our defense in these matters, under Delaware law
and our bylaws, we may have an additional obligation to
indemnify our current and former officers and directors in
relation to those matters, and we have advanced, and may
continue to advance, legal fees and expenses to certain other
current and former employees. Any additional legal costs and
fees may have a material adverse effect on our financial
condition, liquidity and cash flow.
Our Ability to
Pay the DOJ Fine, the Puerto Rico Settlement or Any Other
Judgment or Settlement is Very Limited, and the Fine, Settlement
or Any Other Payments May Have a Material Adverse Effect on Our
Business, Operations and Financial Condition.
Our ability to satisfy the DOJ fine of $45.0 million or pay
the $20.0 million Puerto Rico class action settlement or
pay any other judgment or settlement is limited by our limited
cash, limited borrowing capacity, lack of unencumbered assets,
limited cash flow and our need to fund necessary capital
expenditures, including vessel maintenance and replacement of
old vessels. We cannot assure
16
you that we will be able to borrow sufficient money or generate
sufficient cash flow to pay such fine, settlement, or any
judgments in connection with the antitrust-related matters, and
such fine, settlement, or judgments may have a material adverse
effect on our business plans, as well as our financial condition
and results of operations.
We Depend on
the Federal Government for a Substantial Portion of Our
Business, and We Could Be Adversely Affected by Suspension or
Debarment by the Federal Government.
Some of our revenue is derived from contracts with agencies of
the U.S. government, and as a U.S. government
contractor, we are subject to federal regulations regarding the
performance of our government contracts. In addition, we are
required to certify our compliance with numerous federal laws,
including environmental laws. Failure to comply with relevant
federal laws may result in suspension or debarment. On
March 22, 2011, we pled guilty to a charge of violating
federal antitrust laws in our Puerto Rico tradelane and we have
reported possible antitrust violations in connection with a
shipping services contract provided to the United States
Department of Defense. In addition, we have been advised that
the U.S. Coast Guard and U.S. Attorneys Office
are investigating environmental matters involving two of our
vessels. If the federal government suspends or debars us for
violation of legal and regulatory requirements, it could have a
material adverse effect on our business, results of operations
or prospects.
Under Our
Credit Agreement Amendment, We Are Not Permitted to Pay
Dividends on Our Common Stock and Our Board of Directors Has
Decided Not to Pay Dividends at This Time, And We May Not Have
Sufficient Cash to Pay Dividends in the Future.
We are not required to pay dividends to our stockholders and our
stockholders do not have contractual or other rights to receive
them. On March 9, 2011, we entered into an amendment to our
credit agreement pursuant to which we agreed not to pay
dividends on our common stock, and our Board of Directors
decided to discontinue paying dividends for the fourth quarter
of 2010 and has suspended the payment of dividends indefinitely.
As a result of suspending the payment of dividends, shares of
our common stock could become less liquid and the market price
of our common stock could decline.
Our ability to pay dividends in the future will depend on
numerous factors, including:
|
|
|
|
|
Our obligations under our credit agreement;
|
|
|
|
The state of our business, the environment in which we operate,
and the various risks we face, including financing risks and
other risks summarized in this Annual Report on
Form 10-K;
|
|
|
|
Our results of operations, financial condition, liquidity needs
and capital resources;
|
|
|
|
Our expected cash needs, including for interest and any future
principal payments on indebtedness, capital expenditures and
payment of fines and settlements related to antitrust
matters; and
|
|
|
|
Potential sources of liquidity, including borrowing under our
revolving credit facility or possible asset sales.
|
If we are able to pay dividends in the future, we can only pay
dividends if our subsidiaries transfer funds to us. As a holding
company, we have no direct operations, and our principal assets
are the equity interests we hold in our subsidiaries. However,
our subsidiaries are legally distinct and have no obligation to
transfer funds to us. As a result, we are dependent on our
subsidiaries results of operations, existing and future
debt agreements, governing state law and regulatory
requirements, and the ability to transfer funds to us to meet
our obligations and to pay dividends.
17
Restrictions
in our debt agreements or applicable state legal and regulatory
requirements may prevent us from paying dividends.
Our ability to pay dividends will be restricted by current to
future agreements governing our debt, including our credit
agreement, as well as corporate law requirements. We are not
permitted to pay a dividend under the restricted payment
covenants in the most recent amendment to our credit agreement.
Under Delaware law, our Board of Directors may not authorize a
dividend unless it is paid out of our surplus (calculated in
accordance with the Delaware General Corporation law), or, if we
do not have a surplus, it is paid out of our net profits for the
fiscal year in which the dividend is declared and the proceeding
fiscal year.
Further
Economic Decline and Decrease in Market Demand For the
Companys Services in the Jones Act and Guam Markets Will
Adversely Affect the Companys Operating Results and
Financial Condition.
A further slowdown in economic conditions of our Jones Act and
Guam markets may adversely affect our business. Demand for our
shipping services depends on levels of shipping in our Jones Act
markets and in the Guam market, as well as on economic and trade
growth and logistics. Cyclical or other recessions in the
continental U.S. or in these markets can negatively affect
our operating results. Consumer purchases or discretionary items
generally decline during periods where disposable income is
adversely affected or there is economic uncertainty, and, as a
result our customers may ship fewer containers or may ship
containers only at reduced rates. For example, shipping volume
in Hawaii and Puerto Rico were down approximately 2.5% in 2010
as compared to 2009 as a result of the slow economic recovery.
The economic downturn in our tradelanes has negatively affected
our earnings. We cannot predict the length of the current
economic downturn or whether further economic decline may occur.
Volatility in
Fuel Prices May Adversely Affect Our Profits.
Fuel is a significant operating expense for our shipping
operations. The price and supply of fuel is unpredictable and
fluctuates based on events outside our control, including
geopolitical developments, supply and demand for oil and gas,
actions by OPEC and other oil and gas producers, war and unrest
in oil producing countries and regions, regional production
patterns and environmental concerns. As a result, variability in
the price of fuel, such as we are currently experiencing, may
adversely affect profitability. There can be no assurance that
our customers will agree to bear such fuel price increases via
fuel surcharges without a reduction in their volumes of business
with us, nor any assurance that our future fuel hedging efforts,
if any, will be successful.
Repeal,
Substantial Amendment, or Waiver of the Jones Act or Its
Application Could Have a Material Adverse Effect on Our
Business.
If the Jones Act was to be repealed, substantially amended, or
waived and, as a consequence, competitors with lower operating
costs by utilizing their ability to acquire and operate
foreign-flag and foreign-built vessels were to enter any of our
Jones Act markets, our business would be materially adversely
affected. In addition, our advantage as a
U.S.-citizen
operator of Jones Act vessels could be eroded by periodic
efforts and attempts by foreign interests to circumvent certain
aspects of the Jones Act. If maritime cabotage services were
included in the General Agreement on Trade in Services, the
North American Free Trade Agreement or other international trade
agreements, or if the restrictions contained in the Jones Act
were otherwise altered, the shipping of maritime cargo between
covered U.S. ports could be opened to foreign-flag or
foreign-built vessels.
18
A Decrease in
the Level of Chinas Export of Goods or an Increase in
Trade Protectionism Could Have a Material Adverse Impact on Our
International Business.
China exports considerably more goods than it imports. Our
service between Asia and the U.S. West Coast generates
revenue derived from the shipment of goods from the Asia Pacific
region to the U.S. Any reduction in or hindrance to the
output of China-based exporters could have a material adverse
effect on the growth rate of Chinas exports. For example,
monetary policy in the U.S. has had the affect of raising
the value of the Chinese currency, resulting in Chinese goods
becoming more expensive in the U.S. In addition, China has
begun permitting trading in its currency in Hong Kong and New
York, which may permit the value of Chinas currency to
fluctuate and impact the price of Chinese goods in the
U.S. Similarly, China has recently implemented economic
policies aimed at increasing domestic consumption of Chinese
made goods. These policies, among many other policies, may have
the effect of reducing the export of goods from China and may
result in a decrease in demand for shipping. The level of
imports to and exports from China could be adversely affected by
economic reforms and policies by either the Chinese or the
U.S. government, as well as by changes in political,
economic and social conditions or other relevant policies of
either government.
Our international operations expose us to the risk that
increased trade protectionism will adversely affect our
business. Either the Chinese government or the
U.S. government may turn to trade barriers to protect their
domestic industries against foreign imports, thereby depressing
the demand for shipping. Specifically, increasing trade
protectionism in the Asia and U.S. market has caused and
may continue to cause an increase in the cost of goods exported
from China, the length of time required to deliver goods from
China and the risks associated with exporting goods from China.
Any increased trade barriers or restrictions on trade between
the U.S. and China would have an adverse impact on our
business, results of operations and our financial condition.
The Growth of
Our New Trans-Pacific Ocean Transportation Service Between Asia
and the West Coast of the United States Depends on Continued
Increases in World and Regional Demand for Container Shipping,
and the Global Economic Slowdown May Impede Our Ability to Grow
Our New International Service.
The ocean container shipping industry is both cyclical and
volatile in terms of both rates and profitability. Rates for
container shipping peaked in 2005 and generally stayed strong
until the middle of 2008, when the effects of the economic
crisis began to affect global container trade, driving rates
significantly lower from 2008 to 2010. We launched our
international service between Asia and the U.S. West Coast
at the end of 2010, when rates remained well below their long
term averages but higher than the 2008 trough. Weak conditions
in the international containership market will affect our
ability to generate cash flows and maintain liquidity.
The factors affecting the supply and demand for container
shipping are largely outside of our control, and the nature,
timing and degree of changes in market conditions are
unpredictable. The factors that influence demand for container
shipping include:
|
|
|
|
|
supply and demand for products shipped in containers;
|
|
|
|
changes in global production of products transported by
containerships;
|
|
|
|
global and regional economic and political conditions;
|
|
|
|
developments in international trade; and
|
|
|
|
currency exchange rates.
|
The cyclical nature of the international shipping industry may
continue to drive volatility in freight rates and, in turn,
reduce our revenues earnings, and cash flows.
19
The
Trans-Pacific Ocean Transportation Market Between Asia and the
West Coast of the United States is Highly Competitive, and We
May Not be Able to Compete Successfully With Established
Companies That Have Greater Resources or Other New
Entrants.
In December of 2010, we began deploying our five 2,824 TEU
capacity Hunter-class containerships in the market between Asia
and the U.S. West Coast. This market is highly competitive
and capital intensive, as well as fragmented. As a new entrant,
we face operational risks associated with establishing and
executing our service offering and competitors that have
substantially greater resources than we do and have well
established reputations and substantial experience in the
international marketplace.
In addition to these established companies, we could face
competition from new entrants into the market. Some owners and
operators of vessels in the international market may be
receiving direct or indirect support from or be operated by
sovereign governments. Competition for the international
transportation of containers by sea is intense and depends on
price, service, location, and the size, speed, age, and
condition of an operators vessels. Competitors with
greater resources and larger fleets operate in the container
shipping industry in the trans-Pacific service between Asia and
the West Coast of the Unites States. These service providers may
be able to offer lower rates than we can offer, and they may be
prepared and able to sustain significant losses in order to
maintain market share.
Our
Trans-Pacific Service Faces a Regulatory and Currency
Environment That Does Not Exist in Our Domestic Tradelanes and
is Specific to Operating as an Ocean Common Carrier in the
International Marketplace.
A company that holds itself out to the general public to provide
ocean transportation services for cargo between the United
States and China is subject to various licensing and regulatory
regimes in both countries. The Federal Maritime Commission in
the United States and the Ministry of Transportation of P.R.C.
in the Peoples Republic of China are two of the principal,
but not sole, regulatory authorities.
Compliance with various regulatory regimes, both foreign and
domestic, could increase our costs or result in loss of revenue
or both. Fluctuations in foreign currency exchange could have
similar impacts. Law and regulations impacting international
trade and sovereign monetary policy are subject to political
conditions and periodic change. Such changes may require us to
modify our business plans or strategies and force us to incur
greater costs or suffer lost opportunities.
Change in Tax
Laws or the Interpretation Thereof, Adverse Tax Audits and Other
Tax Matters Related to Our Tonnage Tax Election or Such Tax May
Adversely Affect Our Future Results.
During 2006, after evaluating the merits and requirements of the
tonnage tax, we elected the application of the tonnage tax
instead of the federal corporate income tax on income from our
qualifying shipping activities. Changes in tax laws or the
interpretation thereof, adverse tax audits, and other tax
matters related to such tax election or such tax may adversely
affect our future results.
During the fourth quarter of 2007, a draft of a Technical
Corrections Act proposed redefining the Puerto Rico trade to not
qualify for application of the tonnage tax. The tax writing
committee in Congress removed the tonnage tax repeal language
from the Technical Corrections Act before its passage, but there
can be no assurance that there will not be future efforts to
repeal all, or any portion of, the tonnage tax as it applies to
our shipping activities.
Our Industry
is Unionized and Strikes By Our Union Employees or Others in the
Industry May Disrupt Our Services and Adversely Affect Our
Operations.
As of December 26, 2010, we had 1,890 employees, of
which 1,267 were unionized employees represented by seven
different labor unions. Our industry is susceptible to work
stoppages and other
20
adverse employee actions due to the strong influence of maritime
trade unions. We may be adversely affected by future industrial
action against efforts by our management or the management of
other companies in our industry to reduce labor costs, restrain
wage increases or modify work practices. For example, in 2002
our operations at our U.S. west coast ports were
significantly affected by a
10-day labor
interruption by the International Longshore and Warehouse Union
that affected ports and shippers throughout the U.S. west
coast. In addition, in 2010 a two day work stoppage at the Port
of New York and New Jersey by constituent locals of the
International Longshoremans Association affected our
operations on the U.S. east coast.
In addition, in the future, we may not be able to negotiate, on
terms and conditions favorable to us, renewals of our collective
bargaining agreements with unions in our industry and strikes
and disruptions may occur as a result of our failure or the
failure of other companies in our industry to negotiate
collective bargaining agreements with such unions successfully.
Our collective bargaining agreements are scheduled to expire as
follows: three in 2011, three in 2012, one in 2013, one in 2014,
and two in 2017.
Our Employees
are Covered By Federal Laws That May Subject Us to Job-Related
Claims in Addition to Those Provided By State
Laws.
Some of our employees are covered by several maritime statutes,
including provisions of the Jones Act, the Death on the High
Seas Act, the Seamens Wage Act and general maritime law.
These laws typically operate to make liability limits
established by state workers compensation laws
inapplicable to these employees and to permit these employees
and their representatives to pursue actions against employers
for job-related injuries in federal courts. Because we are not
generally protected by the limits imposed by state workers
compensation statutes for these employees, we may have greater
exposure for any claims made by these employees than is
customary in the United States.
Due to Our
Participation in Multi-Employer Pension Plans, We May Have
Exposure Under Those Plans That Extends Beyond What Our
Obligations Would Be With Respect to Our
Employees.
We contribute to fifteen multi-employer pension
plans. In the event of a partial or complete
withdrawal by us from any plan which is underfunded, we would be
liable for a proportionate share of such plans unfunded
vested benefits. Based on the limited information available from
plan administrators, which we cannot independently validate, we
believe that our portion of the contingent liability in the case
of a full withdrawal or termination would be material to our
financial position and results of operations. In the event that
any other contributing employer withdraws from any plan which is
underfunded, and such employer (or any member in its controlled
group) cannot satisfy its obligations under the plan at the time
of withdrawal, then we, along with the other remaining
contributing employers, would be liable for our proportionate
share of such plans unfunded vested benefits. We have no
current intention of taking any action that would subject us to
any withdrawal liability and cannot assure you that no other
contributing employer will take such action.
In addition, if a multi-employer plan fails to satisfy the
minimum funding requirements, the Internal Revenue Service,
pursuant to Section 4971 of the Internal Revenue Code of
1986, as amended, referred to herein as the Code, will impose an
excise tax of five (5%) percent on the amount of the accumulated
funding deficiency. Under Section 413(c)(5) of the Code,
the liability of each contributing employer, including us, will
be determined in part by each employers respective
delinquency in meeting the required employer contributions under
the plan. The Code also requires contributing employers to make
additional contributions in order to reduce the deficiency to
zero, which may, along with the payment of the excise tax, have
a material adverse impact on our financial results.
21
Compliance
With Safety and Environmental Protection and Other Governmental
Requirements May Adversely Affect Our Operations.
The shipping industry in general and our business and the
operation of our vessels and terminals in particular are
affected by extensive and changing safety, environmental
protection and other international, national, state and local
governmental laws and regulations. For example, our vessels, as
U.S.-flagged
vessels, generally must be maintained in class and
are subject to periodic inspections by the American Bureau of
Shipping or similar classification societies, and must be
periodically inspected by, or on behalf of, the U.S. Coast
Guard. Federal environmental laws and certain state laws require
us, as a vessel operator, to comply with numerous environmental
regulations and to obtain certificates of financial
responsibility and to adopt procedures for oil or hazardous
substance spill prevention, response and clean up. In complying
with these laws, we have incurred expenses and may incur future
expenses for ship modifications and changes in operating
procedures. Changes in enforcement policies for existing
requirements and additional laws and regulations adopted in the
future could limit our ability to do business or further
increase the cost of our doing business.
Our vessels operating certificates and licenses are
renewed periodically during the required annual surveys of the
vessels. However, there can be no assurance that such
certificates and licenses will be renewed. Also, in the future,
we may have to alter existing equipment, add new equipment to,
or change operating procedures for, our vessels to comply with
changes in governmental regulations, safety or other equipment
standards to meet our customers changing needs. If any
such costs are material, they could adversely affect our
financial condition.
We Are Subject
to Regulation and Liability Under Environmental Laws That Could
Result in Substantial Fines and Penalties That May Have a
Material Adverse Affect on Our Results of
Operations.
The U.S. Act to Prevent Pollution from Ships, implementing
the MARPOL convention, provides for severe civil and criminal
penalties related to ship-generated pollution for incidents in
U.S. waters within three nautical miles and in some cases
in the
200-mile
exclusive economic zone. The EPA requires vessels to obtain
permits and comply with inspection, monitoring, recordkeeping
and reporting requirements. Occasionally, our vessels may not
operate in accordance with such permits or we may not adequately
comply with recordkeeping and reporting requirements. Any such
violations could result in substantial fines or penalties that
could have a material adverse affect on our results of
operations and our business.
We are Subject
to Statutory and Regulatory Directives in the United States
Addressing Homeland Security Concerns That May Increase Our
Costs and Adversely Affect Our Operations.
Various government agencies within the Department of Homeland
Security (DHS), including the Transportation
Security Administration, the U.S. Coast Guard, and
U.S. Bureau of Customs and Border Protection, have adopted,
and may adopt in the future, rules, policies or regulations or
changes in the interpretation or application of existing laws,
rules, policies or regulations, compliance with which could
increase our costs or result in loss of revenue.
The Coast Guards maritime security regulations, issued
pursuant to the Maritime Transportation Security Act of 2002
(MTSA), require us to operate our vessels and
facilities pursuant to both the maritime security regulations
and approved security plans. Our vessels and facilities are
subject to periodic security compliance verification
examinations by the Coast Guard. A failure to operate in
accordance with the maritime security regulations or the
approved security plans may result in the imposition of a fine
or control and compliance measures, including the suspension or
revocation of the security plan, thereby making the vessel or
facility ineligible to operate. We are also required to audit
these security plans on an annual basis and, if necessary,
submit amendments to the Coast Guard for
22
its review and approval. Failure to timely submit the necessary
amendments may lead to the imposition of the fines and control
and compliance measures mentioned above. Failure to meet the
requirements of the maritime security regulations could have a
material adverse effect on our results of operations.
DHS may adopt additional security-related regulations, including
new requirements for screening of cargo and our reimbursement to
the agency for the cost of security services. These new
security-related regulations could have an adverse impact on our
ability to efficiently process cargo or could increase our
costs. In particular, our customers typically need quick
shipping of their cargos and rely on our on-time shipping
capabilities. If these regulations disrupt or impede the timing
of our shipments, we may fail to meet the needs of our
customers, or may increase expenses to do so.
Increased
Inspection Procedures and Tighter Import and Export Controls
Could Increase Costs and Disrupt Our Business.
Domestic and international container shipping is subject to
various security and customs inspection and related procedures,
referred to herein as inspection procedures, in countries of
origin and destination as well as in countries in which
transshipment points are located. Inspection procedures can
result in the seizure of containers or their contents, delays in
the loading, offloading, transshipment or delivery of containers
and the levying of customs duties, fines or other penalties
against exporters or importers (and, in some cases, shipping and
logistics companies such as us). Failure to comply with these
procedures may result in the imposition of fines
and/or the
taking of control or compliance measures by the applicable
governmental agency, including the denial of entry into
U.S. waters.
We understand that, currently, only a small proportion of all
containers delivered to the United States are physically
inspected by U.S., state or local authorities prior to delivery
to their destinations. The U.S. government, foreign
governments, international organizations, and industry
associations have been considering ways to improve and expand
inspection procedures. There are numerous proposals to enhance
the existing inspection procedures, which if implemented would
likely affect shipping and logistics companies such as us. Such
changes could impose additional financial and legal obligations
on us, including additional responsibility for physically
inspecting and recording the contents of containers we are
shipping. In addition, changes to inspection procedures could
impose additional costs and obligations on our customers and
may, in certain cases, render the shipment of certain types of
cargo by container uneconomical or impractical. Any such changes
or developments may have a material adverse effect on our
business, financial condition and results of operations.
Restrictions
on Foreign Ownership of Our Vessels Could Limit Our Ability to
Sell Off Any Portion of Our Business or Result in the Forfeiture
of Our Vessels.
The Jones Act restricts the foreign ownership interests in the
entities that directly or indirectly own the vessels which we
operate in our Jones Act markets. If we were to seek to sell any
portion of our business that owns any of these vessels, we would
have fewer potential purchasers, since some potential purchasers
might be unable or unwilling to satisfy the foreign ownership
restrictions described above. As a result, the sales price for
that portion of our business may not attain the amount that
could be obtained in an unregulated market. Furthermore, at any
point Horizon Lines, LLC, our indirect wholly-owned subsidiary
and principal operating subsidiary, ceases to be controlled and
75% owned by U.S. citizens, we would become ineligible to
operate in our current Jones Act markets and may become subject
to penalties and risk forfeiture of our vessels.
No Assurance
Can Be Given That Our Insurance Costs Will Not
Escalate.
Our protection and indemnity insurance (P&I) is
provided by a mutual P&I club which is a member of the
International Group of P&I clubs. As a mutual club, it
relies on member premiums, investment reserves and income, and
reinsurance to manage liability risks on behalf of its members.
23
Increased investment losses, underwriting losses, or reinsurance
costs could cause international marine insurance clubs to
increase the cost of premiums, resulting not only in higher
premium costs, but also higher levels of deductibles and
self-insurance retentions.
Our coverage under the Longshore Act for U.S. Longshore and
Harbor Workers compensation is provided by Signal Mutual
Indemnity Association Ltd. Signal Mutual is a non-profit
organization whose members pool risks of a similar nature to
achieve long-term and stable insurance protection at cost.
Signal Mutual is now the largest provider of Longshore benefits
in the country. This program provides for first-dollar coverage
without a deductible.
Catastrophic
Losses and Other Liabilities Could Adversely Affect Our Results
of Operations and Such Losses and Liability May Be Beyond
Insurance Coverage.
The operation of any oceangoing vessel carries with it an
inherent risk of catastrophic maritime disaster, mechanical
failure, collision, and loss of or damage to cargo. Also, in the
course of the operation of our vessels, marine disasters, such
as oil spills and other environmental mishaps, cargo loss or
damage, and business interruption due to political or other
developments, as well as maritime disasters not involving us,
labor disputes, strikes and adverse weather conditions, could
result in loss of revenue, liabilities or increased costs,
personal injury, loss of life, severe damage to and destruction
of property and equipment, pollution or environmental damage and
suspension of operations. Damage arising from such occurrences
may result in lawsuits asserting large claims.
Although we maintain insurance, including retentions and
deductibles, at levels that we believe are consistent with
industry norms against the risks described above, including loss
of life, there can be no assurance that this insurance would be
sufficient to cover the cost of damages suffered by us from the
occurrence of all of the risks described above or the loss of
income resulting from one or more of our vessels being removed
from operation. We also cannot be assured that a claim will be
paid or that we will be able to obtain insurance at commercially
reasonable rates in the future. Further, if we are negligent or
otherwise responsible in connection with any such event, our
insurance may not cover our claim.
In the event that any of the claims arising from any of the
foregoing possible events were assessed against us, all of our
assets could be subject to attachment and other judicial process.
As a result of the significant insurance losses incurred in the
September 11, 2001 attack and related concern regarding
terrorist attacks, global insurance markets increased premiums
and reduced or restricted coverage for terrorist losses
generally. Accordingly, premiums payable for terrorist coverage
have increased substantially and the level of terrorist coverage
has been significantly reduced.
Additionally, new and stricter environmental regulations have
led to higher costs for insurance covering environmental damage
or pollution, and new regulations could lead to similar
increases or even make this type of insurance unavailable.
The reliability of our service may be adversely affected if our
spare vessels reserved for relief are not deployed efficiently
under extreme circumstances, which could damage our reputation
and harm our operating results. We generally keep spare vessels
in reserve available for relief if one of our vessels in active
service suffers a maritime disaster or must be unexpectedly
removed from service for repairs. However, these spare vessels
may require several days of sailing before it can replace the
other vessel, resulting in service disruptions and loss of
revenue. If more than one of our vessels in active service
suffers a maritime disaster or must be unexpectedly removed from
service, we may have to redeploy vessels from our other trade
routes, or lease one or more vessels from third parties. We may
suffer a material adverse effect on our business if we are
unable to rapidly deploy one of our spare vessels and we fail to
provide on-time scheduled service and adequate capacity to our
customers.
24
Interruption
or Failure of Our Information Technology and Communications
Systems Could Impair our Ability to Effectively Provide Our
Shipping and Logistics Services, Especially HITS, Which Could
Damage Our Reputation and Harm Our Operating
Results.
Our provision of our shipping and logistics services depends on
the continuing operation of our information technology and
communications systems, especially HITS. We have experienced
brief system failures in the past and may experience brief or
substantial failures in the future. Any failure of our systems
could result in interruptions in our service reducing our
revenue and profits and damaging our brand. Some of our systems
are not fully redundant, and our disaster recovery planning does
not account for all eventualities. The occurrence of a natural
disaster, or other unanticipated problems at our facilities at
which we maintain and operate our systems could result in
lengthy interruptions or delays in our shipping and logistics
services, especially HITS.
Our Vessels
Could Be Arrested By Maritime Claimants, Which Could Result in
Significant Loss of Earnings and Cash Flow.
Crew members, suppliers of goods and services to a vessel,
shippers of cargo, lenders and other parties may be entitled to
a maritime lien against a vessel for unsatisfied debts, claims
or damages. In many jurisdictions, a claimant may enforce its
lien by either arresting or attaching a vessel through
foreclosure proceedings. Moreover, crew members may place liens
for unpaid wages that can include significant statutory penalty
wages if the unpaid wages remain overdue (e.g., double wages for
every day during which the unpaid wages remain overdue). The
arrest or attachment of one or more of our vessels could result
in a significant loss of earnings and cash flow for the period
during which the arrest or attachment is continuing.
In addition, international vessel arrest conventions and certain
national jurisdictions allow so-called sister-ship arrests,
which allow the arrest of vessels that are within the same legal
ownership as the vessel which is subject to the claim or lien.
Certain jurisdictions go further, permitting not only the arrest
of vessels within the same legal ownership, but also any
associated vessel. In nations with these laws, an association
may be recognized when two vessels are owned by companies
controlled by the same party. Consequently, a claim may be
asserted against us or any of our vessels for the liability of
one or more of the other vessels that we own.
We are
Susceptible to Severe Weather and Natural
Disasters.
Our operations are vulnerable to disruption as a result of
weather and natural disasters such as bad weather at sea,
hurricanes, typhoons and earthquakes. Such events will interfere
with our ability to provide the on-time scheduled service our
customers demand resulting in increased expenses and potential
loss of business associated with such events. In addition,
severe weather and natural disasters can result in interference
with our terminal operations, and may cause serious damage to
our vessels, loss or damage to containers, cargo and other
equipment and loss of life or physical injury to our employees.
Terminals in the South Pacific Ocean, particularly in Guam, and
terminals on the east coast of the continental U.S. and in
the Caribbean are particularly susceptible to hurricanes and
typhoons. In the recent past, the terminal at our port in Guam
was seriously damaged by a typhoon and our terminal in Puerto
Rico was seriously damaged by a hurricane. These storms resulted
in damage to cranes and other equipment and closure of these
facilities. Earthquakes in Anchorage and in Guam have also
damaged our terminal facilities resulting in delay in terminal
operations and increased expenses. Any such damage will not be
fully covered by insurance.
We May Face
New Competitors.
Other established or
start-up
shipping operators may enter our markets to compete with us for
business.
Existing non-Jones Act qualified shipping operators whose
container ships sail between ports in Asia and the
U.S. west coast could add Hawaii, Guam or Alaska as
additional stops on their sailing
25
routes for
non-U.S. originated
or destined cargo. Shipping operators could also add Puerto Rico
as a new stop on sailings of their vessels between the
continental U.S. and ports in Europe, the Caribbean, and
Latin America for
non-U.S. originated
or destined cargo. Further, shipping operators could introduce
U.S.-flagged
vessels into service sailing between Guam and U.S. ports,
including ports on the U.S. west coast or in Hawaii. On
these routes to and from Guam no limits would apply as to the
origin or destination of the cargo dropped off or picked up. In
addition, current or new U.S. citizen shipping operators
may order the building of new vessels by U.S. shipyards and
may introduce these
U.S.-built
vessels into Jones Act qualified service on one or more of our
trade routes. These potential competitors may have access to
financial resources substantially greater than our own. The
entry of a new competitor on any of our trade routes could
result in a significant increase in available shipping capacity
that could have a material adverse effect on our business,
financial condition, results of operations and cash flows.
We May Not
Exercise Our Purchase Options For Our Chartered
Vessels.
We intend to exercise our purchase options for the three Jones
Act vessels that we have chartered upon the expiration of their
charters in January 2015. In addition, we have not determined
whether we will exercise our scheduled purchase options for the
five recently built
U.S.-flag
vessels that we have chartered. There can be no assurance that,
when these options for these eight vessels become exercisable,
the price at which these vessels may be purchased will be
reasonable in light of the fair market value of these vessels at
such time or that we will have the funds required to make these
purchases. As a result, we may not exercise our options to
purchase these vessels. If we do not exercise our options, we
may need to renew our existing charters for these vessels or
charter replacement vessels. There can be no assurance that our
existing charters will be renewed, or, if renewed, that they
will be renewed at favorable rates, or, if not renewed, that we
will be able to charter replacement vessels at favorable rates.
We May Face
Significant Costs As the Vessels Currently in Our Fleet
Age.
We believe that each of the vessels we currently operate has an
estimated useful life of approximately 45 years from the
year it was built. As of the date hereof, the average age of our
active vessels is approximately 23 years and the average
age of our Jones Act vessels is approximately 33 years. We
expect to incur increasing costs to operate and maintain the
vessels in good condition as they age. Eventually, these vessels
will need to be replaced. We may not be able to replace our
existing vessels with new vessels based on uncertainties related
to financing, timing and shipyard availability.
We May Face
Unexpected Substantial Dry-Docking Costs For Our
Vessels.
Our vessels are dry-docked periodically to comply with
regulatory requirements and to effect maintenance and repairs,
if necessary. The cost of such repairs at each dry-docking are
difficult to predict with certainty and can be substantial. Our
established processes have enabled us to make on average six
dry-dockings per year over the last five years with a minimal
impact on schedule. There are some years when we have more than
the average of six dry-dockings annually. In addition, our
vessels may have to be dry-docked in the event of accidents or
other unforeseen damage. Our insurance may not cover all of
these costs. Large unpredictable repair and dry-docking expenses
could significantly decrease our profits.
Our Recent
Change of Chief Executive Officer May be Viewed Negatively and
Could Have an Adverse Impact on Our Business, and if We Do Not
Successfully Manage the Transitions Associated with Our New
Management Team, It Could Have an Adverse Impact on Our
Business.
The leadership and expertise of Charles G. Raymond, our former
CEO, and his long-standing relationships with customers has been
instrumental in our success. His recent retirement as CEO
26
could have material adverse affect on our business. In addition,
our board of directors recently appointed Stephen Fraser, a
current board member, to act as interim CEO to replace
Mr. Raymond, until a replacement is identified. Investors,
employees, customers and others could react negatively to this
and any future executive management transitions.
Our future success will be dependent upon Mr. Frasers
ability and any permanent replacement CEOs ability to gain
proficiency in leading our Company, his ability to implement and
adapt our business strategy and his ability to develop key
professional relationships. It is important for us to
successfully manage these transitions as our failure to do so
could adversely affect our ability to operate our business. In
addition, we will incur additional expenses associated with the
compensation of our former CEO, our interim CEO and any
permanent CEO.
Loss of Any
Additional Personnel Could Adversely Affect Our
Business.
Our ability to successfully manage our business during any
management transition will depend, in significant part, upon the
continued services of Michael T. Avara, our Executive Vice
President and Chief Financial Officer, and Brian W. Taylor, our
Executive Vice President and Chief Operating Officer. The loss
of the services of any of these executive officers could
adversely affect our future operating results because of their
experience and knowledge of our business. If key employees
depart, we may have to incur significant costs to replace them
and our ability to execute our business model could be impaired
if we cannot replace them in a timely manner. We do not expect
to maintain key person insurance on any of our executive
officers.
We are Subject
to, and May in the Future Be Subject to, Disputes, or Legal or
Other Proceedings, That Could Have a Material Adverse Effect on
Us.
The nature of our business exposes us to the potential for
disputes, or legal or other proceedings, from time to time
relating to labor and employment matters, personal injury and
property damage, environmental matters and other matters, as
discussed in the other risk factors disclosed in this
Form 10-K.
In addition, as a common carrier, our tariffs, rates, rules and
practices in dealing with our customers are governed by
extensive and complex foreign, federal, state and local
regulations which are the subject of disputes or administrative
and/or
judicial proceedings from time to time. These disputes,
individually or collectively, could harm our business by
distracting our management from the operation of our business.
If these disputes develop into proceedings, these proceedings,
individually or collectively, could involve significant
expenditures by us or result in significant changes to our
tariffs, rates, rules and practices in dealing with our
customers that could have a material adverse effect on our
future revenue and profitability.
Our Secured
Credit Facility Exposes Us to the Variability of Interest
Rates.
The term loan and revolving credit portions of our senior credit
facility bear interest at variable rates. As of
December 26, 2010, we had outstanding a $93.8 million
term loan and $100.0 million under the revolving credit
facility, which bear interest at variable rates. The interest
rates applicable to the senior credit facility vary with the
prevailing corporate base rate offered by the administrative
agent under the senior credit facility or with LIBOR. If these
rates were to increase significantly, our ability to borrow
additional funds may be reduced and the risks related to our
substantial indebtedness would intensify. Each quarter point
change in interest rates would result in a $0.3 million
change in annual interest expense on the revolving credit
facility. Accordingly, a significant rise in interest rates
would adversely affect our financial results.
27
If
Non-U.S.
Citizens Own More Than 19.9% of Our Stock, We May Not Have the
Funds or the Ability to Redeem Any Excess Shares and We Could Be
Forced to Suspend Our Jones Act Operations.
Our certificate of incorporation contains provisions voiding
transfers of shares of any class or series of our capital stock
that would result in
non-U.S. citizens,
in the aggregate, owning in excess of 19.9% of the shares of
such class or series. In the event that this transfer
restriction would be ineffective, our certificate of
incorporation provides for the automatic transfer of such excess
shares to a trust specified therein. These trust provisions also
apply to excess shares that would result from a change in the
status of a record or beneficial owner of shares of our capital
stock from a U.S. citizen to a
non-U.S. citizen.
In the event that these trust transfer provisions would also be
ineffective, our certificate of incorporation permits us to
redeem such excess shares. However, we may not be able to redeem
such excess shares because our operations may not have generated
sufficient excess cash flow to fund such redemption. If such a
situation occurs, there is no guarantee that we will be able to
obtain the funds necessary to affect such redemption on terms
satisfactory to us or at all. The senior credit facility permits
upstream payments from our subsidiaries, subject to exceptions,
to the Company to fund redemptions of excess shares.
If, for any of the foregoing reasons or otherwise, we are unable
to effect such a redemption when such ownership of shares by
non-U.S. citizens
is in excess of 25.0% of such class or series, or otherwise
prevent
non-U.S. citizens
in the aggregate from owning shares in excess of 25.0% of any
such class or series, or fail to exercise our redemption right
because we are unaware that such ownership exceeds such
percentage, we will likely be unable to comply with applicable
maritime laws. If all of the citizenship-related safeguards in
our certificate of incorporation fail at a time when ownership
of shares of any class or series of our stock is in excess of
25.0% of such class or series, we will likely be required to
suspend our Jones Act operations. Any such actions by
governmental authorities would have a severely detrimental
impact on our results of operations.
Our Share
Price Will Fluctuate.
Stock markets in general and our common stock in particular have
experienced significant price and volume volatility over the
past year. The market price and trading volume of our common
stock may continue to be subject to significant fluctuations due
not only to general stock market conditions but also to
variability in the prevailing sentiment regarding our operations
or business prospects, as well as potential further decline of
our common stock due to margin calls on loans secured by pledges
of our common stock.
28
Environmental and
Other Regulation
Our marine operations are subject to various federal, state and
local environmental laws and regulations implemented principally
by the United States Coast Guard (Coast Guard),
Environmental Protection Agency (EPA), and the
United States Department of Transportation (DOT), as
well as state environmental regulatory agencies. These
requirements generally govern the safe operations of our ships
and pollution prevention in U.S. internal waters, the
territorial sea, and the
200-mile
exclusive economic zone of the United States.
The operation of our vessels is also subject to regulation under
various international conventions adopted by the International
Maritime Organization (IMO) that are implemented by
the laws of the jurisdictions in which we trade, and enforced by
the Coast Guard and port state authorities in our
non-U.S. ports
of call. In addition, our vessels are required to meet
construction, maintenance and repair standards established by
the American Bureau of Shipping (ABS), Det Norske
Veritas (DNV), IMO
and/or the
Coast Guard, and to meet operational, environmental, security,
and safety standards and regulations presently established by
the Coast Guard and IMO. The Coast Guard also licenses our
seagoing officers and certifies our seamen.
Our marine operations are further subject to regulation by
various federal agencies or the successors to those agencies,
including the Surface Transportation Board (STB, the
successor federal agency to the Interstate Commerce Commission),
the Maritime Administration (MARAD, an agency within
the DOT), the Federal Maritime Commission, the EPA,
U.S. Customs and Border Protection, and the Coast Guard.
These regulatory authorities have broad powers over operational
safety, tariff filings of freight rates, service contracts,
certain mergers, contraband, pollution prevention, financial
reporting, and homeland, port and vessel security.
Our common and contract motor carrier operations are regulated
by the STB and various state agencies. Our drivers also must
comply with the safety and fitness regulations promulgated by
the DOT, including certain regulations for drug and alcohol
testing and hours of service. The ships officers and
unlicensed crew members employed aboard our vessels must also
comply with numerous safety and fitness regulations promulgated
by the Coast Guard, the DOT, and the IMO, including certain
regulations for drug testing and hours of service.
The United
States Oil Pollution Act of 1990 and the Comprehensive
Environmental Response, Compensation and Liability
Act
The Oil Pollution Act of 1990 (OPA) was enacted and
established a comprehensive regulatory and liability regime
designed to increase pollution prevention, ensure better spill
response capability, increase liability for oil spills, and
facilitate prompt compensation for cleanup and damages. OPA is
applicable to owners and operators whose vessels trade with the
United States or its territories or possessions, or whose
vessels operate in the navigable waters of the United States
(generally three nautical miles from the coastline) and the 200
nautical mile exclusive economic zone of the United States.
Under OPA, vessel owners, operators and bareboat charterers are
responsible parties and are jointly, severally and
strictly liable (unless it is determined by the Coast Guard or a
court of competent jurisdiction that the spill results solely
from the act or omission of a third party, an act of God or an
act of war) for removal costs and damages arising from
discharges or threatened discharges of oil from their vessels up
to their limits of liability, unless the limits are broken as
indicated below. Damages are defined broadly under
OPA to include:
|
|
|
|
|
natural resources damages and the costs of assessment thereof;
|
|
|
|
damages for injury to, or economic losses resulting from the
destruction of, real or personal property;
|
|
|
|
the net loss of taxes, royalties, rents, fees and profits by the
United States government, and any state or political subdivision
thereof;
|
29
|
|
|
|
|
lost profits or impairment of earning capacity due to property
or natural resources damage;
|
|
|
|
the net costs of providing increased or additional public
services necessitated by a spill response, such as protection
from fire, safety or other hazards; and
|
|
|
|
the loss of subsistence use of natural resources.
|
Effective July 31, 2009, the OPA regulations were amended
to increase the liability limits for responsible parties for
non-tank vessels to $1,000 per gross ton or $854,400, whichever
is greater. These limits of liability do not apply: (1) if
an incident was proximately caused by violation of applicable
federal safety, construction or operating regulations or by a
responsible partys gross negligence or willful misconduct,
or (2) if the responsible party fails or refuses to report
the incident, fails to provide reasonable cooperation and
assistance requested by a responsible official in connection
with oil removal activities, or without sufficient cause fails
to comply with an order issued under OPA.
In 1980, the Comprehensive Environmental Response, Compensation
and Liability Act (CERCLA) was adopted and is
applicable to the discharge of hazardous substances (other than
oil) whether on land or at sea. CERCLA also imposes liability
similar to OPA and provides for cleanup, removal and natural
resource damage. Liability per vessel under CERCLA is limited to
the greater of $300 per gross ton or $5 million, unless the
incident is caused by gross negligence, willful misconduct, or a
violation of certain regulations, in which case liability is
unlimited.
OPA requires owners and operators of vessels to establish and
maintain with the Coast Guard evidence of financial
responsibility sufficient to meet their potential liabilities
under the OPA. Effective July 1, 2009, the Coast Guard
regulations requiring evidence of financial responsibility were
amended to conform the OPA financial responsibility requirements
to the July 2009 increases in liability limits. Current Coast
Guard regulations require evidence of financial responsibility
for oil pollution in the amount of $1,000 per gross ton or
$854,400, whichever is greater, for non-tank vessels, plus the
CERCLA liability limit of $300 per gross ton for hazardous
substance spills. As a result of the Delaware River Protection
Act, which was enacted by Congress in 2006, the OPA limits of
liability must be adjusted not less than every three years to
reflect significant increases in the Consumer Price Index.
Under the Coast Guard regulations, vessel owners and operators
may evidence their financial responsibility through an insurance
guaranty, surety bond, self-insurance, financial guaranty or
other evidence of financial responsibility acceptable to the
Coast Guard. Under OPA, an owner or operator of a fleet of
vessels may demonstrate evidence of financial responsibility in
an amount sufficient to cover the vessels in the fleet having
the greatest maximum liability under OPA.
The Coast Guards regulations concerning certificates of
financial responsibility provide, in accordance with OPA, that
claimants may bring suit directly against an insurer or
guarantor that furnishes certificates of financial
responsibility. In the event that such insurer or guarantor is
sued directly, it is prohibited from asserting any contractual
defense that it may have had against the responsible party and
is limited to asserting those defenses available to the
responsible party and the defense that the incident was caused
by the willful misconduct of the responsible party. Certain
organizations, which had typically insured shipowners before
enactment of OPA, including the major protection and indemnity
clubs, have declined to furnish an insurance guaranty for vessel
owners and operators if they are subject to direct actions or
are required to waive insurance policy defenses.
OPA allows individual states to impose their own liability
regimes with regard to oil pollution incidents occurring within
their boundaries, and some states have enacted legislation
providing for unlimited liability for oil spills as well as
requirements for response and contingency planning and
requirements for financial responsibility. We intend to comply
with all applicable state regulations in the states where our
vessels call.
We maintain Certificates of Financial Responsibility as required
by the Coast Guard and various states for our vessels.
30
In 2010, both houses of Congress proposed legislation to create
certain more stringent requirements related to the prevention
and response to oil spills in U.S. waters and to increase
both financial responsibility requirements and the limits of
liability under OPA and increase penalties. Although the
U.S. House of Representatives passed spill legislation, the
U.S. Senate did not act on that legislation, and thus no
legislation was enacted during the
2009-2010
term of Congress. Spill legislation has again been introduced in
Congress for its
2011-2012
term. If Congress passes spill legislation, we could be subject
to greater potential liability or penalties if any of our
vessels has an incident or we could be required to comply with
other requirements thereby increasing our operating costs.
The Act to
Prevent Pollution from Ships and MARPOL Requirements for Oil
Pollution Prevention
The International Convention for the Prevention of Pollution
from Ships, 1973, as modified by the Protocol of 1978 relating
thereto (MARPOL), is the main international
convention covering prevention of pollution of the marine
environment by vessels from operational or accidental causes. It
has been updated by amendments through the years and is
implemented in the United States pursuant to the Act to Prevent
Pollution from Ships. MARPOL has six specific annexes and
Annex I governs oil pollution.
Since the 1990s, the DOJ has been aggressively enforcing
U.S. criminal laws against vessel owners, operators,
managers, crewmembers, shoreside personnel, and corporate
officers for actions related to violations of Annex I.
Prosecutions generally involve violations related to pollution
prevention devices, such as the oil-water separator, and include
falsifying the Oil Record Book, obstruction of justice, false
statements and conspiracy. Over the past 10 years, the DOJ
has imposed significant criminal penalties in vessel pollution
cases and the vast majority of such cases did not actually
involve pollution in the United States, but rather efforts to
conceal or cover up pollution that occurred elsewhere. In
certain cases, responsible shipboard officers and shoreside
officials have been sentenced to prison. In addition, the DOJ
has required defendants to implement a comprehensive
environmental compliance plan (ECP). If we are
subjected to a DOJ criminal prosecution, we could face
significant criminal penalties and defense costs as well as
costs associated with the implementation of an ECP.
The United
States Clean Water Act
Enacted in 1972, the United States Clean Water Act
(CWA) prohibits the discharge of
pollutants, which includes oil or hazardous
substances, into navigable waters of the United States and
imposes civil and criminal penalties for unauthorized
discharges. The CWA complements the remedies available under OPA
and CERCLA discussed above.
The CWA also established the National Pollutant Discharge
Elimination System (NPDES) permitting program, which
governs discharges of pollutants into navigable waters of the
United States. Pursuant to the NPDES, EPA issued a Vessel
General Permit (VGP), which has been in effect since
February 6, 2009, covering 26 types of discharges
incidental to normal vessel operations. The VGP applies to
U.S. and foreign-flag commercial vessels that are at least
79 feet in length, and therefore applies to our vessels.
The VGP requires vessel owners and operators to adhere to
best management practices to manage the 26 listed
discharge streams, including ballast water, that occur normally
in the operation of a vessel. Vessel owners and operators must
implement various training, inspection, monitoring, record
keeping, and reporting requirements, as well as corrective
actions upon identification of each deficiency. Several states
have specified significant, additional requirements in
connection with state mandated CWA certifications relating to
the VGP.
On February 11, 2011, the EPA and the Coast Guard entered
into a Memorandum of Understanding (MOU) outlining
the steps the agencies will take to better coordinate efforts to
implement and enforce the VGP. Under the MOU, the Coast Guard
will identify and report to EPA detected VGP
31
deficiencies as a result of its normal boarding protocols for
U.S.-flag
and foreign-flag vessels. However, EPA retains responsibility
and enforcement authority to address VGP violations. We have
filed a Notice of Intent to be covered by the VGP for each of
our ships. Failure to comply with the VGP may result in civil or
criminal penalties.
The National
Invasive Species Act
The United States National Invasive Species Act
(NISA) was enacted in 1996 in response to growing
reports of harmful organisms being released into United States
waters through ballast water taken on by vessels in foreign
ports. The Coast Guard adopted regulations under NISA in July
2004 that impose mandatory ballast water management practices
for all vessels equipped with ballast water tanks entering
United States waters. These requirements can be met by
performing mid-ocean ballast exchange, by retaining ballast
water on board the vessel, or by using environmentally sound
ballast water treatment methods approved by the Coast Guard.
Mid-ocean ballast exchange is the primary method for compliance
with the Coast Guard regulations; alternative methods for
ballast water treatment are still under development. Vessels
that are unable to conduct mid-ocean ballast exchange due to
voyage or safety concerns may discharge minimum amounts of
ballast water, provided that they comply with recordkeeping
requirements and document the reasons they could not follow the
required ballast water management requirements. On
August 28, 2009, the Coast Guard proposed to amend its
regulations on ballast water management by establishing
standards for the allowable concentration of living organisms in
a vessels ballast water discharged in United States
waters. As proposed, it would establish a two tier standard.
Tier one would set the initial limits to match those set
internationally by IMO in the Ballast Water Convention, which
has not yet entered into force. These limits are proposed to
come into force by January 1, 2012. A limited number of
technologies have been approved and may enable some vessels to
meet these discharge standards. The tier two standard would be
more stringent and cannot be met using existing treatment
technology. This second tier, as proposed, would come into
effect on January 1, 2017. Although it cannot be predicted
with any certainty when the Coast Guard will issue a final rule
implementing a new ballast water standard and what discharge
standards will be required, the Coast Guard currently estimates
that it will publish a ballast water standard in 2011. Upon
entry into force of the IMO Ballast Water Convention two of our
vessels will be required to have a ballast water treatment
system on board by their first survey date after January 1,
2015. All of our remaining vessels will be required to have an
approved system on board by their first survey after
January 1, 2016. Systems are available that will meet the
IMO standards.
Both houses of Congress have proposed a number of bills to amend
NISA but it cannot be predicted which bill, if any, will be
enacted into law.
In the absence of stringent federal standards, states have
enacted legislation or regulations to address invasive species
through ballast water and hull cleaning management, and
permitting requirements, which in many cases have also become
part of the states VGP certification. For instance,
California requires vessels to comply with state ballast water
discharge and hull fouling requirements. Oceangoing vessels
covered by the VGP are prohibited from discharging ballast water
in Michigan waters unless the vessel meets Michigan state
requirements and obtains a Michigan permit. New York requires
vessels to meet ballast water treatment standards by
January 1, 2012 with technology that is not available
today, but has granted extensions to this deadline until
August 1, 2013. Other states may proceed with the enactment
of similar requirements that could increase the costs of
operating in state waters.
The United
States Clean Air Act and Air Emission Standards under
MARPOL
In 1970, the United States Clean Air Act (as amended by the
Clean Air Act Amendments of 1977 and 1990, the CAA)
was enacted and required the EPA to promulgate standards
applicable to emissions of volatile organic compounds and other
air contaminants. The CAA also requires states to submit State
Implementation Plans (SIPs), which are designed to
attain national health-based air
32
quality standards throughout the United States, including major
metropolitan
and/or
industrial areas. Several SIPs regulate emissions resulting from
vessel loading and unloading operations by requiring the
installation of vapor control equipment. The EPA and some states
have each proposed more stringent regulations of air emissions
from propulsion and auxiliary engineers on oceangoing vessels.
For example, the California Air Resources Board of the state of
California (CARB) has published regulations
requiring oceangoing vessels visiting California ports to reduce
air pollution through the use of marine distillate fuels once
they sail within 24 miles of the California coastline
effective July 1, 2009. More stringent fuel oil
requirements are scheduled to go into effect on January 1,
2012.
The state of California also began on January 1, 2010,
implementing regulations on a phased in basis that require
vessels to either shut down their auxiliary engines while in
port in California and use electrical power supplied at the dock
or implement alternative means to significantly reduce emissions
from the vessels electric power generating equipment while
it is in port. Generally, a vessel will run its auxiliary
engines while in port in order to power lighting, ventilation,
pumps, communication and other onboard equipment. The emissions
from running auxiliary engines while in port may contribute to
particulate matter in the ambient air. The purpose of the
regulations is to reduce the emissions from a vessel while it is
in port. The cost of reducing vessel emissions while in port may
be substantial if we determine that we cannot use or the ports
will not permit us to use electrical power supplied at the dock.
Alternatively, the ports may pass the cost of supplying
electrical power at the port to us, and we may incur additional
costs in connection with modifying our vessels to use electrical
power supplied at the dock.
Annex VI of MARPOL, addressing air emissions from vessels,
came into force in the United States on January 8, 2009 and
it will require the use of low sulfur fuels worldwide in both
auxiliary and main propulsion diesel engines on vessels. By
July 1, 2010, amendments to MARPOL required all diesel
engines on vessels built between 1990 and 2000 to meet a Nitrous
Oxide (NOx) standard of
17.0g-NOx/kW-hr.
On January 1, 2011 the NOx standard will be lowered to 14.4
g-NOx/kW-hr and on January 1, 2016 it will be further
lowered to 3.4 g-NOx/kW-hr, for vessels operating in a
designated Emission Control Area (ECA).
In addition, the current global sulfur cap of 4.5% sulfur will
be reduced to 3.5% effective January 1, 2012 and be further
reduced to as low as 0.5% sulfur in 2020. The recommendations
made in connection with a MARPOL fuel availability study
scheduled for 2018 at IMO may cause this date to slip to 2025.
The current 1.0% maximum sulfur omission permitted in designated
ECAs will be reduced to 0.1% sulfur on January 1, 2015.
These sulfur limitations will be applied to all subsequently
approved ECAs.
In addition, the EPA has received approval of the IMO, in
coordination with Environment Canada, to designate all waters
within 200 nautical miles of Hawaii and the U.S. and
Canadian coasts as ECAs. Under EPA regulations the North
American ECA will go into force on January 1, 2012 limiting
the sulfur content in fuel that is burned as described above.
Beginning in 2016, NOx after-treatment requirements become
applicable in this ECA as well. EPA has also obtained
preliminary approval at IMO for an ECA around Puerto Rico and
the U.S. Virgin Islands.
With the adoption of the United States ECA, all ships operating
within 200 miles of the U.S. coast will be required to
burn 1% sulfur content fuel oil as of August 1, 2012 and
0.1% sulfur content fuel oil as of January 1,2015. Our 12
steamships cannot safely burn 0.1% oil without extensive
modification to or replacement of their boilers or fuel systems.
It is not yet known if such a modification can be designed. EPA
has received preliminary approval at IMO to exempt steamships
from the 0.1% sulfur content fuel oil requirement until 2020.
The Resource
Conservation and Recovery Act
Our operations occasionally generate and require the
transportation, treatment and disposal of both hazardous and
non-hazardous solid wastes that are subject to the requirements
of the United States Resource Conservation and Recovery Act
(RCRA) or comparable state, local or foreign
33
requirements. From time to time we arrange for the disposal of
hazardous waste or hazardous substances at offsite disposal
facilities. With respect to our marine operations, EPA has a
longstanding policy that RCRA only applies after wastes are
purposely removed from the vessel. As a general
matter, with certain exceptions, vessel owners and operators are
required to determine if their wastes are hazardous, obtain a
generator identification number, comply with certain standards
for the proper management of hazardous wastes, and use hazardous
waste manifests for shipments to disposal facilities. The degree
of RCRA regulation will depend on the amount of hazardous waste
a generator generates in any given month. Moreover, vessel
owners and operators may be subject to more stringent state
hazardous waste requirements in those states where they land
hazardous wastes. If such materials are improperly disposed of
by third parties that we contract with, we may still be held
liable for cleanup costs under applicable laws.
Endangered
Species Regulation
The Endangered Species Act, federal conservation regulations and
comparable state laws protect species threatened with possible
extinction. Protection of endangered and threatened species may
include restrictions on the speed of vessels in certain ocean
waters and may require us to change the routes of our vessels
during particular periods. For example, in an effort to prevent
the collision of vessels with the North Atlantic right whale,
federal regulations restrict the speed of vessels to ten knots
or less in certain areas along the Atlantic Coast of the United
States during certain times of the year. The reduced speed and
special routing along the Atlantic Coast results in the use of
additional fuel, which affects our results of operations.
Greenhouse Gas
Regulation
In February 2005, the Kyoto Protocol to the United Nations
Framework Convention on Climate Change (the Kyoto
Protocol) entered into force. Pursuant to the Kyoto
Protocol, countries that are parties to the Convention are
required to implement national programs to reduce emissions of
certain gases, generally referred to as greenhouse gases, which
are suspected of contributing to global warming. In October
2007, the California Attorney General and a coalition of
environmental groups petitioned the EPA to regulate greenhouse
gas emissions from oceangoing vessels under the CAA. Any passage
of climate control legislation or other regulatory initiatives
in the United States that restrict emissions of greenhouse gases
could entail financial impacts on our operations that cannot be
predicted with certainty at this time. The issue is being
heavily debated within various international regulatory bodies,
such as the IMO, as well and climate control measures that
effect shipping could also be implemented on an international
basis potentially affecting our vessel operations.
Vessel Security
Regulations
Following the terrorist attacks on September 11, 2001,
there have been a variety of initiatives intended to enhance
vessel security within the United States and internationally. On
November 25, 2002, the Maritime Transportation Security Act
of 2002 (MTSA) was signed into law. To implement
certain portions of MTSA, in July 2003, the Coast Guard issued
regulations requiring the implementation of certain security
requirements aboard vessels operating in waters subject to the
jurisdiction of the United States. Similarly, in December 2002,
the IMO adopted amendments to the International Convention for
the Safety of Life at Sea (SOLAS), known as the
International Ship and Port Facilities Security Code (the
ISPS Code), creating a new chapter dealing
specifically with maritime security. The new chapter came into
effect in July 2004 and imposes various detailed security
obligations on vessels and port authorities. Among the various
requirements under MTSA
and/or the
ISPS Code are:
|
|
|
|
|
on-board installation of automatic information systems to
enhance
vessel-to-vessel
and
vessel-to-shore
communications;
|
|
|
|
on-board installation of ship security alert systems;
|
|
|
|
the development of vessel and facility security plans;
|
34
|
|
|
|
|
the implementation of a Transportation Worker Identification
Credential program; and
|
|
|
|
compliance with flag state security certification requirements.
|
The Coast Guard regulations, intended to align with
international maritime security standards, generally deem
foreign-flag vessels to be in compliance with MTSA vessel
security measures provided such vessels have on board a valid
International Ship Security Certificate that attests to the
vessels compliance with SOLAS security requirements and
the ISPS Code.
U.S.-flag
vessels, however, must comply with all of the security measures
required by MTSA, as well as SOLAS and the ISPS Code if engaged
in international trade. We believe that we have implemented the
various security measures required by the MTSA, SOLAS and the
ISPS Code.
|
|
Item 1B.
|
Unresolved
Staff Comments
|
None.
35
We lease all of our facilities, including our terminal and
office facilities located at each of the ports upon which our
vessels call, as well as our central sales and administrative
offices and regional sales offices. The following table sets
forth the locations, descriptions, and square footage of our
significant facilities as of December 26, 2010:
|
|
|
|
|
|
|
|
|
|
|
Square
|
|
Location
|
|
Description of Facility
|
|
Footage(1)
|
|
|
Anchorage, Alaska
|
|
Stevedoring building and various terminal and related property
|
|
|
1,429,425
|
|
Charlotte, North Carolina
|
|
Corporate headquarters
|
|
|
28,900
|
|
Chicago, Illinois
|
|
Regional sales office
|
|
|
1,929
|
|
Compton, California
|
|
Terminal supervision office and warehouse
|
|
|
176,676
|
|
Dedeo, Guam
|
|
Terminal and related property
|
|
|
108,425
|
|
Dominican Republic
|
|
Operations office
|
|
|
1,500
|
|
Dutch Harbor, Alaska
|
|
Office and various terminal and related property
|
|
|
658,167
|
|
Elizabeth, New Jersey
|
|
Terminal supervision and sales office
|
|
|
4,994
|
|
Honolulu, Hawaii
|
|
Terminal property and office
|
|
|
97,124
|
(2)
|
Houston, Texas
|
|
Terminal supervision and sales office
|
|
|
166
|
|
Irving, Texas
|
|
Operations center
|
|
|
51,989
|
|
Jacksonville, Florida
|
|
Terminal supervision, sales office & warehousing
|
|
|
15,943
|
|
Kenilworth, New Jersey
|
|
Ocean shipping services office
|
|
|
12,110
|
|
Kodiak, Alaska
|
|
Office and various terminal and related property
|
|
|
265,232
|
|
Laredo, Texas
|
|
Warehousing and office
|
|
|
56,800
|
|
Lexington, North Carolina
|
|
Warehousing and office
|
|
|
23,984
|
|
Oakland, California
|
|
Office and various terminal and related property
|
|
|
247,732
|
|
Piti, Guam
|
|
Office and various terminal and related property
|
|
|
24,837
|
|
Renton, Washington
|
|
Regional sales office
|
|
|
9,146
|
|
San Francisco, California
|
|
Warehousing and office
|
|
|
19,900
|
|
San Juan, Puerto Rico
|
|
Office and various terminal and related property
|
|
|
3,451,013
|
|
Sparks, Nevada
|
|
Warehousing
|
|
|
20,000
|
|
Tacoma, Washington
|
|
Office and various terminal and related property
|
|
|
797,348
|
|
|
|
|
(1) |
|
Square footage for marine terminal facilities excludes common
use areas used by other terminal customers and us. |
|
(2) |
|
Excludes 1,647,952 square feet of terminal property, which
we have the option to use and pay for on an as-needed basis. |
|
|
Item 3.
|
Legal
Proceedings
|
Antitrust Matters
On April 17, 2008, we received a grand jury subpoena and
search warrant from the United States District Court for the
Middle District of Florida seeking information regarding an
investigation by the Antitrust Division of the Department of
Justice (the DOJ) into possible antitrust violations
in the domestic ocean shipping business. On February 23,
2011, we entered into a plea agreement with the DOJ whereby we
agreed to plead guilty to a charge of violating federal
antitrust laws solely with respect to the Puerto Rico tradelane
and agreed to pay a fine of $45.0 million over five years
without interest. The first $1.0 million of the fine must
be paid within 30 days after imposition of the sentence by
the court and annual payments of $1.0 million,
$3.0 million, $5.0 million, $15.0 million and
36
$20.0 million must be paid on each anniversary thereafter.
The plea agreement provides that we will not face additional
charges relating to the Puerto Rico tradelane. On March 22,
2011, the court entered judgment accepting our plea agreement
and placing us on probation for five years. The terms of the
probation include that the Company: 1) file annual audited
financial reports, 2) not commit a criminal act during the
probation period, 3) report any material adverse legal or
financial event, and 4) annually certify that it has an
antitrust compliance program in place that satisfies the
sentencing guidelines requirements, including antitrust
education to key personnel.
In addition, the plea agreement provides that we will not face
any additional charges in connection with the Alaska trade, and
the DOJ has indicated that we are not a target or subject to any
investigation in the Hawaii and Guam trades. Also, in June 2009,
we entered into a conditional amnesty agreement with the DOJ
under its Corporate Leniency Policy. The amnesty agreement
pertains to a single contract relating to ocean shipping
services provided to the United States Department of Defense.
The DOJ has agreed to not bring any criminal prosecution with
respect to that government contract, as long as we, among other
things, continue our full cooperation in the investigation. The
amnesty does not bar a claim for damages that may be sought by
the DOJ under any applicable federal law or regulation.
We have included a charge of $30.0 million in our fiscal
2010 financial statements, which represents the present value of
the $45.0 million in installment payments. We have not made
a provision in the accompanying financial statements for any
civil damages resulting from the amnesty matter in the
accompanying financial statements.
Subsequent to the commencement of the DOJ investigation,
fifty-eight purported class action lawsuits were filed against
us and other domestic shipping carriers (the
Class Action Lawsuits). Each of the
Class Action Lawsuits purports to be on behalf of a class
of individuals and entities who purchased domestic ocean
shipping services directly from the various domestic ocean
carriers. These complaints allege price-fixing in violation of
the Sherman Act and seek treble monetary damages, costs,
attorneys fees, and an injunction against the allegedly
unlawful conduct. The Class Action Lawsuits were filed in
the following federal district courts: eight in the Southern
District of Florida, five in the Middle District of Florida,
nineteen in the District of Puerto Rico, twelve in the Northern
District of California, three in the Central District of
California, one in the District of Oregon, eight in the Western
District of Washington, one in the District of Hawaii, and one
in the District of Alaska.
Thirty-two of the Class Action Lawsuits relate to ocean
shipping services in the Puerto Rico tradelane and were
consolidated into a single multidistrict litigation
(MDL) proceeding in the District of Puerto Rico. On
June 11, 2009, we entered into a settlement agreement with
the named plaintiff class representatives in the Puerto Rico
MDL. Under the settlement agreement, we have agreed to pay
$20.0 million and to provide a base-rate freeze as
described below to resolve claims for alleged antitrust
violations in the Puerto Rico tradelane.
The base-rate freeze component of the settlement agreement
provides that class members who have contracts in the Puerto
Rico trade with us as of the effective date of the settlement
would have the option, in lieu of receiving cash, to have their
base rates frozen for a period of two years. The
base-rate freeze would run for two years from the expiration of
the contract in effect on the effective date of the settlement.
All class members would be eligible to share in the
$20.0 million cash component, but only our contract
customers would be eligible to elect the base-rate freeze in
lieu of receiving cash.
On July 8, 2009, the plaintiffs filed a motion for
preliminary approval of the settlement in the Puerto Rico MDL.
After several hearings, the Court granted preliminary approval
of the settlement on July 12, 2010. The settlement is
subject to final approval by the Court. We have paid
$10.0 million into an escrow account and are required to
pay the remaining $10.0 million within five business days
after final approval of the settlement agreement by the District
Court. On September 15, 2010, notices of the Puerto Rico
settlement were mailed to class members, who had sixty days to
respond. Some class members have elected to opt-out of the
settlement in response to the class notice they have received.
We have until April 29, 2011 to decide whether or not to
proceed with the class settlement.
37
The customers that have elected to opt-out of the settlement may
file lawsuits containing allegations similar to those made in
the Puerto Rico MDL and seek the same type of damages under the
Sherman Act as sought in the Puerto Rico MDL. We are not able to
determine whether or not any actions will be brought against us
or whether or not a negative outcome would be probable if
brought against us, or a reasonable range for any such outcome,
and have made no provisions for any potential proceedings in our
financial statements. Given the volume of commerce involved in
the Puerto Rico shipping business, an adverse ruling in a
potential civil antitrust proceeding could subject us to
substantial civil damages given the treble damages provisions of
the Sherman Act.
In addition, we have actively engaged in discussions with a
number of our customers in the Puerto Rico trade regarding the
subject matter of the DOJ investigations. We have reached
commercial agreements or are seeking to reach commercial
agreements with certain of our major customers, with the
condition that the customer relinquishes all claims arising out
of the matters that are the subject of the antitrust
investigations. In some cases, we have agreed to, or are seeking
to agree to, future discounts which will be charged against
operating revenue if and when the discount is earned and certain
other conditions are met.
Twenty-five of the fifty-eight Class Action Lawsuits relate
to ocean shipping services in the Hawaii and Guam tradelanes and
were consolidated into a MDL proceeding in the Western District
of Washington. On March 20, 2009, we filed a motion to
dismiss the claims in the Hawaii and Guam MDL. On
August 18, 2009, the United States District Court for the
Western District of Washington entered an order dismissing,
without prejudice, the Hawaii and Guam MDL. In dismissing the
complaint, however, the plaintiffs were granted thirty days to
amend their complaint. After several extensions, the plaintiffs
filed an amended consolidated class action complaint on
May 28, 2010. On July 12, 2010, we filed a motion to
dismiss the plaintiffs amended complaint. The motion to
dismiss the amended complaint was granted with prejudice on
December 1, 2010, and the plaintiffs have served a notice
of appeal with the United States Court of Appeals for the Ninth
Circuit. We intend to vigorously defend against this purported
class action lawsuit.
One district court case remains in the District of Alaska,
relating to the Alaska tradelane. We and the plaintiffs have
agreed to stay the Alaska litigation, and we intend to
vigorously defend against the purported class action lawsuit in
Alaska.
In addition, on July 9, 2008, a complaint was filed by
Caribbean Shipping Services, Inc. in the Circuit Court,
4th Judicial Circuit in and for Duval County, Florida,
against us and other domestic shipping carriers alleging
price-fixing in violation of the Florida Antitrust Act and the
Florida Deceptive and Unlawful Trade Practices Act. The
complaint seeks treble damages, injunctive relief, costs and
attorneys fees. The case is not brought as a class action.
On October 27, 2008, we filed a motion to dismiss. The
motion to dismiss is pending.
On October 9, 2009, we received a Request for Information
and Production of Documents from the Puerto Rico Office of
Monopolistic Affairs. The request relates to an investigation
into possible price fixing and unfair competition in the Puerto
Rico domestic ocean shipping business. In February 2011, the
Commonwealth of Puerto Rico filed a lawsuit against us seeking
monetary damages on behalf of the Attorney General of the
Commonwealth of Puerto Rico and a class of persons (indirect
purchasers).
On October 19, 2009, a purported class action lawsuit was
filed against us, other domestic shipping carriers and certain
individuals in the United States District Court for the District
of Puerto Rico. The complaint purports to be on behalf of
indirect purchasers who allege to have paid inflated prices for
retail goods imported to Puerto Rico as a result of alleged
price-fixing of the defendants in violation of the Sherman Act
and various provisions of Puerto Rico law. The plaintiffs are
seeking treble monetary damages, costs and attorneys fees.
On April 9, 2010, we filed a motion to dismiss. The
District Court has dismissed all counts in the complaint except
those under Puerto Rico antitrust laws. The District Court has
certified to the Puerto Rico Supreme Court the question of
whether the Puerto Rico antitrust statute applies to interstate
commerce.
38
On February 22, 2011, we entered into a Memorandum of
Understanding with the attorneys representing the indirect
purchasers and the Commonwealth of Puerto Rico to settle the
investigation by the Puerto Rico Office of Monopolistic Affairs
and the lawsuit filed by the Commonwealth of Puerto Rico in
February 2011, and the class action lawsuit in the indirect
purchasers case. Under the Memorandum of Understanding, we have
agreed to pay $1.8 million for a full release in those
matters. The settlement agreement, when negotiated and entered
into by the parties, will be subject to court approval.
On December 31, 2008, a securities class action lawsuit was
filed against us by the City of Roseville Employees
Retirement System in the United States District Court for the
District of Delaware. The complaint purported to be on behalf of
purchasers of our common stock. The complaint alleged, among
other things, that we made material misstatements and omissions
in connection with alleged price-fixing in our shipping business
in Puerto Rico in violation of antitrust laws. We filed a motion
to dismiss, and the Court granted the motion to dismiss on
November 13, 2009 with leave to file an amended complaint.
The plaintiff filed an amended complaint on December 23,
2009, and we filed a motion to dismiss the amended complaint on
February 12, 2010. Our motion to dismiss the amended
complaint was granted with prejudice on May 18, 2010. On
June 15, 2010, the plaintiff appealed the Courts
decision to dismiss the amended complaint. We filed our
opposition brief with the Court of Appeals on December 22,
2010 and the plaintiffs filed their reply brief on
February 2, 2011.
On March 9, 2010, our Board of Directors and certain
current and former officers of the Company were named as
defendants in a shareholder derivative lawsuit filed in the
Superior Court of Mecklenburg County, North Carolina. The
derivative suit was filed by a shareholder named Patrick Smith
purportedly on behalf of Horizon Lines, Inc. claiming that the
Directors and current and former officers named in the complaint
breached their fiduciary duties and damaged the Company by
allegedly causing us to engage in an antitrust conspiracy in the
ocean shipping trade routes between the continental United
States and Alaska, Hawaii, Guam and Puerto Rico. The relief
being sought by the plaintiff includes monetary damages, fees
and expenses associated with the action, including
attorneys fees, and appropriate equitable relief. The
defendants filed a motion to dismiss on May 27, 2010. The
motion was granted on October 21, 2010. The time for an
appeal has expired.
Through December 26, 2010, we have incurred approximately
$28.1 million in legal and professional fees associated
with the DOJ investigation, the antitrust related litigation,
and other related legal proceedings.
Environmental Matters
We are subject to numerous laws and regulations relating to
environmental matters and related record keeping and reporting.
We have been advised that the U.S. Coast Guard and
U.S. Attorneys Office are investigating matters
involving two of our vessels. We are cooperating with this
investigation. It is possible that the outcome of the
investigation could result in a substantial fine and other
actions against us that could have an adverse effect on our
business and operations.
In the ordinary course of business, from time to time, we become
involved in various legal proceedings. These relate primarily to
claims for loss or damage to cargo, employees personal
injury claims, and claims for loss or damage to the person or
property of third parties. We generally maintain insurance,
subject to customary deductibles or self-retention amounts,
and/or
reserves to cover these types of claims. We also, from time to
time, become involved in routine employment-related disputes and
disputes with parties with which we have contractual relations.
|
|
Item 4.
|
Submission
of Matters to a Vote of Security Holders
|
There were no matters submitted to a vote of security holders
through the solicitation of proxies or otherwise during the
fourth quarter of fiscal 2010.
39
Part II
|
|
Item 5.
|
Market
for Registrants Common Equity, Related Stockholder Matters
and Issuer Purchases of Equity Securities
|
The Companys Common Stock is traded on the New York Stock
Exchange under the ticker symbol HRZ. As of March 21, 2011,
there were approximately 6,750 holders of record of the Common
Stock. The following table sets forth the intraday high and low
sales price of the Companys common stock on the New York
Stock Exchange for the fiscal periods presented.
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Cash Dividend
|
|
2011
|
|
High
|
|
|
Low
|
|
|
Declared
|
|
|
First Quarter (through March 21, 2011)
|
|
$
|
5.91
|
|
|
$
|
3.30
|
|
|
$
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
2010
|
|
High
|
|
|
Low
|
|
|
Cash Dividend
|
|
|
First Quarter
|
|
$
|
6.54
|
|
|
$
|
3.68
|
|
|
$
|
0.05
|
|
Second Quarter
|
|
$
|
6.09
|
|
|
$
|
3.80
|
|
|
$
|
0.05
|
|
Third Quarter
|
|
$
|
4.97
|
|
|
$
|
3.65
|
|
|
$
|
0.05
|
|
Fourth Quarter
|
|
$
|
4.77
|
|
|
$
|
3.53
|
|
|
$
|
0.05
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
2009
|
|
High
|
|
|
Low
|
|
|
Cash Dividend
|
|
|
First Quarter
|
|
$
|
4.73
|
|
|
$
|
2.44
|
|
|
$
|
0.11
|
|
Second Quarter
|
|
$
|
6.33
|
|
|
$
|
3.00
|
|
|
$
|
0.11
|
|
Third Quarter
|
|
$
|
6.92
|
|
|
$
|
3.08
|
|
|
$
|
0.11
|
|
Fourth Quarter
|
|
$
|
6.92
|
|
|
$
|
5.00
|
|
|
$
|
0.11
|
|
During the fourth quarter of 2010, there were no purchases of
shares of the Companys common stock, by or on behalf of
the Company or any affiliated purchaser as defined
by
Rule 10b-18(a)(3)
of the Securities Exchange Act of 1934.
Equity
Compensation Plan Information
The information required by this item will be included in the
Companys proxy statement to be filed for the Annual
Meeting of Stockholders to be held on June 2, 2011, and is
incorporated herein by reference.
40
Total Return
Comparison Graph
The below graph compares the cumulative total shareholder return
of the public common stock of Horizon Lines, Inc. to the
cumulative total returns of the Dow Jones U.S. Industrial
Transportation Index and the S&P 500 Index for the period
in which the Companys stock has been publicly traded.
Cumulative total returns assume reinvestment of dividends.
Comparison of
Cumulative Total Return*
Notwithstanding anything to the contrary set forth in any of our
filings under the Securities Act of 1933, as amended, or the
Securities Exchange Act of 1934, as amended, that might
incorporate other filings with the Securities and Exchange
Commission, including this annual report on
Form 10-K,
in whole or in part, the Total Return Comparison Graph shall not
be deemed incorporated by reference into any such filings.
|
|
|
* |
|
Comparison graph is based upon $100 invested in the given
average or index at the close of trading on December 24,
2005 and $100 invested in the Companys stock by the
opening bell on December 25, 2005, as well as the
reinvestment of dividends. |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
12/25/2005
|
|
|
12/24/2006
|
|
|
12/23/2007
|
|
|
12/21/2008
|
|
|
12/20/2009
|
|
|
12/26/2010
|
Horizon Lines, Inc.
|
|
|
|
100.00
|
|
|
|
|
223.59
|
|
|
|
|
158.86
|
|
|
|
|
40.19
|
|
|
|
|
57.90
|
|
|
|
|
50.68
|
|
Dow Jones U.S. Industrial
Transportation Index
|
|
|
|
100.00
|
|
|
|
|
103.57
|
|
|
|
|
111.62
|
|
|
|
|
83.67
|
|
|
|
|
104.73
|
|
|
|
|
135.77
|
|
S&P 500 Index
|
|
|
|
100.00
|
|
|
|
|
111.20
|
|
|
|
|
117.01
|
|
|
|
|
69.99
|
|
|
|
|
86.90
|
|
|
|
|
99.06
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
41
|
|
Item 6.
|
Selected
Financial Data
|
The five year selected financial data below should be read in
conjunction with Managements Discussion and Analysis
of Financial Condition and Results of Operations, included
in this
Form 10-K,
and our consolidated financial statements and the related notes
appearing in Item 15 of this
Form 10-K.
We have a 52- or 53-week fiscal year (every sixth or seventh
year) that ends on the Sunday before the last Friday in
December. Fiscal year 2010 consisted of 53 weeks and each
of the other years presented below consisted of 52 weeks.
Selected Financial Data is as follows (in thousands, except per
share and per share data):
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Fiscal Years Ended
|
|
|
|
Dec. 26,
|
|
|
Dec. 20,
|
|
|
Dec. 21,
|
|
|
Dec. 23,
|
|
|
Dec. 24,
|
|
|
|
2010
|
|
|
2009
|
|
|
2008
|
|
|
2007
|
|
|
2006
|
|
|
Statement of Operations Data:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Operating revenue
|
|
$
|
1,162,505
|
|
|
$
|
1,124,215
|
|
|
$
|
1,270,978
|
|
|
$
|
1,196,700
|
|
|
$
|
1,156,892
|
|
Legal settlements(1)
|
|
|
31,770
|
|
|
|
20,000
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Impairment of assets
|
|
|
2,655
|
|
|
|
1,867
|
|
|
|
6,030
|
|
|
|
|
|
|
|
|
|
Restructuring costs
|
|
|
2,057
|
|
|
|
787
|
|
|
|
3,126
|
|
|
|
|
|
|
|
|
|
Operating (loss) income
|
|
|
(5,850
|
)
|
|
|
22,288
|
|
|
|
46,062
|
|
|
|
93,044
|
|
|
|
94,910
|
|
Interest expense, net
|
|
|
40,117
|
|
|
|
38,036
|
|
|
|
39,923
|
|
|
|
43,567
|
|
|
|
47,491
|
|
Loss on modification/early extinguishment of debt
|
|
|
|
|
|
|
50
|
|
|
|
|
|
|
|
38,546
|
|
|
|
581
|
|
Income tax expense (benefit)(2)
|
|
|
305
|
|
|
|
10,589
|
|
|
|
(4,153
|
)
|
|
|
(15,152
|
)
|
|
|
(25,332
|
)
|
Net (loss) income from continuing operations
|
|
|
(46,299
|
)
|
|
|
(26,407
|
)
|
|
|
10,353
|
|
|
|
26,003
|
|
|
|
72,357
|
|
Net (loss) income from discontinued operations(3)
|
|
|
(11,670
|
)
|
|
|
(4,865
|
)
|
|
|
(12,946
|
)
|
|
|
822
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net (loss) income
|
|
$
|
(57,969
|
)
|
|
$
|
(31,272
|
)
|
|
$
|
(2,593
|
)
|
|
$
|
26,825
|
|
|
$
|
72,357
|
|
Basic net (loss) income per share:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Continuing operations
|
|
$
|
(1.50
|
)
|
|
$
|
(0.87
|
)
|
|
$
|
0.34
|
|
|
$
|
0.79
|
|
|
$
|
2.16
|
|
Discontinued operations
|
|
$
|
(0.38
|
)
|
|
$
|
(0.16
|
)
|
|
$
|
(0.43
|
)
|
|
$
|
0.02
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Basic net (loss) income per share
|
|
$
|
(1.88
|
)
|
|
$
|
(1.03
|
)
|
|
$
|
(0.09
|
)
|
|
$
|
0.81
|
|
|
$
|
2.16
|
|
Diluted net (loss) income per share:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Continuing operations
|
|
$
|
(1.50
|
)
|
|
$
|
(0.87
|
)
|
|
$
|
0.34
|
|
|
$
|
0.77
|
|
|
$
|
2.14
|
|
Discontinued operations
|
|
$
|
(0.38
|
)
|
|
$
|
(0.16
|
)
|
|
$
|
(0.43
|
)
|
|
$
|
0.02
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Diluted net (loss) income per share
|
|
$
|
(1.88
|
)
|
|
$
|
(1.03
|
)
|
|
$
|
(0.09
|
)
|
|
$
|
0.79
|
|
|
$
|
2.14
|
|
Number of shares used in calculations:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Basic
|
|
|
30,788,681
|
|
|
|
30,450,975
|
|
|
|
30,278,573
|
|
|
|
33,327,567
|
|
|
|
33,551,335
|
|
Diluted
|
|
|
30,788,681
|
|
|
|
30,450,975
|
|
|
|
30,523,182
|
|
|
|
33,864,818
|
|
|
|
33,772,341
|
|
Cash dividends declared
|
|
$
|
6,281
|
|
|
$
|
13,397
|
|
|
$
|
13,273
|
|
|
$
|
14,653
|
|
|
$
|
14,764
|
|
Cash dividends declared per common share
|
|
$
|
0.20
|
|
|
$
|
0.44
|
|
|
$
|
0.44
|
|
|
$
|
0.44
|
|
|
$
|
0.44
|
|
Balance Sheet Data:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Cash
|
|
$
|
2,751
|
|
|
$
|
6,419
|
|
|
$
|
5,487
|
|
|
$
|
6,276
|
|
|
$
|
93,949
|
|
Total assets
|
|
|
785,757
|
|
|
|
819,111
|
|
|
|
872,629
|
|
|
|
920,886
|
|
|
|
945,029
|
|
Total debt, including capital lease obligations
|
|
|
516,323
|
|
|
|
514,855
|
|
|
|
532,811
|
|
|
|
532,108
|
|
|
|
510,788
|
|
Long term debt, including capital lease obligations, net of
current portion(4)
|
|
|
7,530
|
|
|
|
496,105
|
|
|
|
526,259
|
|
|
|
525,571
|
|
|
|
503,850
|
|
Stockholders equity(5)
|
|
|
39,792
|
|
|
|
101,278
|
|
|
|
136,836
|
|
|
|
183,409
|
|
|
|
208,277
|
|
42
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Fiscal Years Ended
|
|
|
|
Dec. 26,
|
|
|
Dec. 20,
|
|
|
Dec. 21,
|
|
|
Dec. 23,
|
|
|
Dec. 24,
|
|
|
|
2010
|
|
|
2009
|
|
|
2008
|
|
|
2007
|
|
|
2006
|
|
|
Other Financial Data:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
EBITDA(6)
|
|
$
|
53,644
|
|
|
$
|
80,218
|
|
|
$
|
107,823
|
|
|
$
|
119,457
|
|
|
$
|
159,391
|
|
Capital expenditures(7)
|
|
|
16,298
|
|
|
|
12,931
|
|
|
|
38,639
|
|
|
|
29,314
|
|
|
|
21,288
|
|
Vessel dry-docking payments
|
|
|
19,159
|
|
|
|
14,735
|
|
|
|
13,913
|
|
|
|
21,414
|
|
|
|
16,815
|
|
Cash flows provided by (used in):
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Operating activities
|
|
|
44,432
|
|
|
|
61,081
|
|
|
|
88,357
|
|
|
|
62,237
|
|
|
|
115,524
|
|
Investing activities(7)
|
|
|
(14,744
|
)
|
|
|
(11,694
|
)
|
|
|
(38,139
|
)
|
|
|
(25,952
|
)
|
|
|
(19,340
|
)
|
Financing activities(7)
|
|
|
(25,159
|
)
|
|
|
(44,753
|
)
|
|
|
(51,310
|
)
|
|
|
(83,123
|
)
|
|
|
(43,685
|
)
|
|
|
|
(1) |
|
We entered into a plea agreement, dated February 23, 2011,
with the United States of America, under which we agreed to
plead guilty to a charge of violating federal antitrust laws
solely with respect to the Puerto Rico tradelane. We agreed to
pay a fine of $45.0 million over five years without
interest. We recorded a charge during the year ended
December 26, 2010 of $30.0 million, which represents
the present value of the expected installment payments. The year
ended December 20, 2009 includes a $20.0 million
charge for the potential settlement of the Puerto Rico MDL. |
|
(2) |
|
During 2006, we elected the application of a tonnage tax instead
of the federal corporate income tax on income from our
qualifying shipping activities. This 2006 election of the
tonnage tax was made in connection with the filing of our 2005
federal corporate income tax return. We accounted for this
election as a change in the tax status of its qualifying
shipping activities. The impact of this tonnage tax election
resulted in a decrease in income tax expense of approximately
$43.5 million during the year ended December 24, 2006.
We modified our trade routes between the U.S. west coast and
Guam and Asia during 2007. As such, our shipping activities
associated with these modified trade routes became qualified
shipping activities, and thus the income from these vessels is
excluded from gross income in determining federal income tax
liability. During 2007, we recorded a $7.7 million tax
benefit due to the revaluation of deferred taxes related to the
qualified shipping income expected to be generated by the new
vessels and related to a change in estimate resulting from
refinements in the methodology for computing secondary
activities and cost allocations for tonnage tax purposes. During
the second quarter of 2009, we determined that it was unclear as
to the timing of when we will generate sufficient taxable income
to realize our deferred tax assets. Accordingly, we recorded a
full valuation allowance against our deferred tax assets. |
|
(3) |
|
During the 4th quarter of 2010, we began a review of strategic
alternatives for our logistics operations. It was determined
that as a result of several factors, including: 1) the
historical operating losses within the logistics operations,
2) the projected continuation of operating losses, and
3) focus on the recently commenced international shipping
activities, we would begin exploring the sale of our logistics
operations. We have determined to reclassify our logistics
operations as discontinued operations because they qualify as
assets held for sale. |
|
(4) |
|
We expect that we will experience a covenant default under the
indenture related to our Notes. We have until May 21, 2011
to obtain a waiver from the holders of the Notes. The remedies
available to the indenture trustee in the event of default
include acceleration of all principal and interest payments. In
addition, in the third quarter of 2011, we believe that it is
likely that we will not be in compliance with the minimum
interest coverage ratio covenant contained in our Senior Credit
Facility. In March 2011, we amended our Senior Credit Facility
to decrease the interest coverage ratio for the fiscal quarters
ending March 27, 2011 and June 26, 2011; however, we
do not expect to be in compliance with the revised interest
coverage ratio. Noncompliance with the financial covenants in
the Senior Credit Facility constitutes an event of default,
which, if not waived, could prevent us from making borrowings
under the Senior Credit Facility. We anticipate working with our
lenders to obtain amendments prior to any possible covenant
noncompliance; however we cannot assure you that we will be able
to secure such amendments. Due to cross default provisions, we |
43
|
|
|
|
|
have classified our obligations under the Notes and Senior
Credit Facility totaling $523.8 million as current
liabilities in the accompanying Consolidated Balance Sheet as of
December 26, 2010. |
|
(5) |
|
Concurrent with the issuance of the 4.25% convertible senior
notes, we entered into note hedge transactions whereby we have
the option to receive shares of our common stock when the share
price is between certain amounts and the we sold warrants to
financial institutions whereby the financial institutions have
the option to receive shares when the share price is above
certain levels. The cost of the note hedge transactions to us
was approximately $52.5 million and we received proceeds of
$11.9 million related to the sale of the warrants. We
recorded a $19.1 million income tax benefit related to the
cost of the hedge transaction that was subsequently fully
reserved as part of recording a full valuation allowance against
our deferred tax assets. |
|
(6) |
|
EBITDA is defined as net income plus net interest expense,
income taxes, depreciation and amortization. We believe that in
addition to GAAP based financial information, EBITDA and
Adjusted EBITDA are meaningful disclosures for the following
reasons: (i) EBITDA and Adjusted EBITDA are components of
the measure used by our board of directors and management team
to evaluate our operating performance, (ii) the senior
credit facility contains covenants that require us to maintain
certain interest expense coverage and leverage ratios, which
contain EBITDA and Adjusted EBITDA as components, and restrict
certain cash payments if certain ratios are not met, subject to
certain exclusions, and our management team uses EBITDA and
Adjusted EBITDA to monitor compliance with such covenants,
(iii) EBITDA and Adjusted EBITDA are components of the
measure used by our management team to make
day-to-day
operating decisions, (iv) EBITDA and Adjusted EBITDA are
components of the measure used by our management to facilitate
internal comparisons to competitors results and the marine
container shipping and logistics industry in general and
(v) the payment of discretionary bonuses to certain members
of our management is contingent upon, among other things, the
satisfaction by Horizon Lines of certain targets, which contain
EBITDA and Adjusted EBITDA as components. We acknowledge that
there are limitations when using EBITDA and Adjusted EBITDA.
EBITDA and Adjusted EBITDA are not recognized terms under GAAP
and do not purport to be an alternative to net income as a
measure of operating performance or to cash flows from operating
activities as a measure of liquidity. Additionally, EBITDA and
Adjusted EBITDA are not intended to be a measure of free cash
flow for managements discretionary use, as it does not
consider certain cash requirements such as tax payments and debt
service requirements. Because all companies do not use identical
calculations, this presentation of EBITDA and Adjusted EBITDA
may not be comparable to other similarly titled measures of
other companies. The EBITDA amounts presented below contain
certain charges that our management team excludes when
evaluating our operating performance, for making
day-to-day
operating decisions and that have historically been excluded
from EBITDA to arrive at Adjusted |
44
|
|
|
|
|
EBITDA when determining the payment of discretionary bonuses. A
reconciliation of net (loss) income to EBITDA and Adjusted
EBITDA is included below (in thousands): |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Year
|
|
|
Year
|
|
|
Year
|
|
|
Year
|
|
|
Year
|
|
|
|
Ended
|
|
|
Ended
|
|
|
Ended
|
|
|
Ended
|
|
|
Ended
|
|
|
|
Dec. 26,
|
|
|
Dec. 20,
|
|
|
Dec. 21,
|
|
|
Dec. 23,
|
|
|
Dec. 24,
|
|
|
|
2010
|
|
|
2009
|
|
|
2008
|
|
|
2007
|
|
|
2006
|
|
|
Net (loss) income
|
|
$
|
(57,969
|
)
|
|
$
|
(31,272
|
)
|
|
$
|
(2,593
|
)
|
|
$
|
26,825
|
|
|
$
|
72,357
|
|
Net (loss) income from discontinued operations
|
|
|
(11,670
|
)
|
|
|
(4,865
|
)
|
|
|
(12,946
|
)
|
|
|
822
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net (loss) income from continuing operations
|
|
|
(46,299
|
)
|
|
|
(26,407
|
)
|
|
|
10,353
|
|
|
|
26,003
|
|
|
|
72,357
|
|
Interest expense, net
|
|
|
40,117
|
|
|
|
38,036
|
|
|
|
39,923
|
|
|
|
43,567
|
|
|
|
47,491
|
|
Income tax expense (benefit)
|
|
|
305
|
|
|
|
10,589
|
|
|
|
(4,153
|
)
|
|
|
(15,152
|
)
|
|
|
(25,332
|
)
|
Depreciation and amortization
|
|
|
59,521
|
|
|
|
58,000
|
|
|
|
61,700
|
|
|
|
65,039
|
|
|
|
64,875
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
EBITDA
|
|
|
53,644
|
|
|
|
80,218
|
|
|
|
107,823
|
|
|
|
119,457
|
|
|
|
159,391
|
|
Legal settlements and contingencies
|
|
|
32,270
|
|
|
|
20,000
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Department of Justice antitrust investigation costs
|
|
|
5,243
|
|
|
|
12,192
|
|
|
|
10,711
|
|
|
|
|
|
|
|
|
|
Impairment of assets
|
|
|
2,655
|
|
|
|
1,867
|
|
|
|
6,030
|
|
|
|
|
|
|
|
|
|
Restructuring costs
|
|
|
2,057
|
|
|
|
787
|
|
|
|
3,126
|
|
|
|
|
|
|
|
|
|
Other severance charges
|
|
|
468
|
|
|
|
306
|
|
|
|
765
|
|
|
|
|
|
|
|
|
|
Loss on modification/ extinguishment of debt
|
|
|
|
|
|
|
50
|
|
|
|
|
|
|
|
38,546
|
|
|
|
581
|
|
Transaction related expenses
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
2,032
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Adjusted EBITDA
|
|
$
|
96,337
|
|
|
$
|
115,420
|
|
|
$
|
128,455
|
|
|
$
|
158,003
|
|
|
$
|
162,004
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(7) |
|
Investing activities during 2007 include the acquisition of HSI.
Financing activities during 2007 include our private placement
of $330.0 million aggregate principal amount of 4.25%
convertible senior notes due 2012 and credit agreement providing
for a $250.0 million five year revolving credit facility
and a $125.0 million term loan with various financial
lenders. We utilized a portion of the proceeds from these
transactions to (i) repay $192.8 million of borrowings
outstanding under the Prior Senior Credit Facility (as defined
below), (ii) purchase the outstanding principal and pay
associated premiums of the 9% senior notes and
11% senior discount notes purchased in our tender offer and
(iii) purchase 1,000,000 shares of our common stock.
Also during 2007, our Board of Directors approved a stock
repurchase program under which we acquired 1,172,000 shares
of our common stock at a total cost of $20.6 million.
During 2008, we completed our share repurchase program by
acquiring an additional 1,627,500 at a total cost of
$29.4 million. |
45
|
|
Item 7.
|
Managements
Discussion and Analysis of Financial Condition and Results of
Operations
|
The following discussion and analysis of our consolidated
financial condition and results of operations should be read in
conjunction with Selected Consolidated and Combined Financial
Data and our annual audited consolidated financial statements
and related notes thereto included elsewhere in this
Form 10-K.
The following discussion includes forward-looking statements
that involve certain risks and uncertainties. For additional
information regarding forward looking statements, see the Safe
Harbor Statement on page (i) of this
Form 10-K.
Recent
Developments
We believe that our financial position will be impacted during
the second and third quarters of 2011. First, we expect that we
will experience a covenant default under the indenture related
to our $330.0 million aggregate principal amount of
4.25% Convertible Senior Notes due 2012 (the
Notes). On March 22, 2011, the Court entered a
judgment against us whereby we are required to pay a fine of
$45.0 million to resolve the investigation by the
U.S. Department of Justice into our domestic ocean shipping
business. In March 2011, we solicited consents from the holders
of the Notes to waive the default that may arise in connection
with that judgment. We have until May 21, 2011 to satisfy
the judgment or otherwise cure the default under the indenture
relating to the Notes, and, as of the date of this filing, we
have not been able to obtain a waiver from the holders of the
Notes and do not presently have remedies to cure the default.
Acceleration of all principal and interest may be pursued by the
indenture trustee in the event of default. Should the indenture
trustee pursue an acceleration, such an action would create a
default in our Senior Credit Facility and other loans and
financing arrangements due to cross default provisions contained
in those agreements.
Second, although we amended our Senior Credit Facility in March
2011, we expect to not be in compliance with the revised
covenants beginning in the third quarter of 2011. We expect our
financial results will be negatively impacted by softness in
international rates, as well as by volatile fuel prices and by
our ability to revise fuel surcharges accordingly. Noncompliance
with the financial covenants in the Senior Credit Facility
constitutes an event of default, which, if not waived, could
prevent us from making borrowings under the Senior Credit
Facility. We anticipate working with our lenders to obtain
amendments or to refinance prior to any possible covenant
noncompliance; however we cannot assure you that we will be able
to secure such amendments or a refinancing.
Due to these expected and potential defaults, we have classified
our obligations under the Notes and the Senior Credit Facility
as current liabilities in the accompanying Consolidated Balance
Sheets as of December 26, 2010. Our independent registered
public accounting firm has issued an opinion on our consolidated
financial statements that states the consolidated financial
statements were prepared assuming we will continue as a going
concern and further states that uncertainties regarding our
ability to remain in compliance with certain debt covenants
under our Senior Credit Facility throughout 2011 and our ability
to cure a potential acceleration under our Notes raise
substantial doubt about our ability to continue as a going
concern.
Our ongoing activities to address these matters include, but are
not limited to, working with our lenders to obtain amendments or
waivers and seeking refinancing sources to address our existing
capital structure. We have retained Moelis & Company
as financial advisors to help us in these efforts.
On March 28, 2011, we executed an employment agreement with
Stephen H. Fraser, who began serving as our interim President
and Chief Executive Officer on March 11, 2011. The term of
the agreement is until we appoint a successor president and
chief executive officer, and the agreement may be terminated by
either party upon thirty days written notice. Pursuant to the
terms of the agreement, Mr. Fraser will be entitled to a
salary of $90,000 per month, plus other usual employee benefits
offered to our employees. The agreement also provides that
Mr. Fraser shall be reimbursed for certain transportation
expenses and may elect to be reimbursed for his cost of medical
insurance for himself and his dependents. Mr. Fraser will
continue to serve as a member of our board of
46
directors. Mr. Fraser will continue to be eligible for
compensation awarded to the board of directors, and the stock
ownership guidelines applicable to board members will continue
to be applicable to him. Mr. Frasers annual cash
retainer for service on the board will be prorated to reflect
only the period which he was a non-employee director. This
description of the employment agreement is not complete and is
qualified by its entirety by the full text of the agreement
which is attached hereto as an exhibit.
On February 23, 2011, we and Charles G. Raymond, our
President and Chief Executive Officer, entered into a Separation
Agreement in connection with Mr. Raymonds retirement.
Under the terms of the Separation Agreement, Mr. Raymond
will receive severance payments over a period of 25 months
totaling approximately $2.3 million. In addition, we will
reimburse Mr. Raymond for premiums related to continued
health coverage under COBRA for the period he and his eligible
dependents are covered under COBRA. Mr. Raymond will also
be entitled to indemnification and the advancement of legal
expenses as provided by our charter and bylaws and any other
applicable documents, and Mr. Raymond has agreed not to
sell any shares of our common stock that he owns for a period of
one year. In addition, the terms of the Separation Agreement
include a non-compete provision for a period of two years.
On February 24, 2011, we announced that our Board of
Directors has named Alex J. Mandl to the position of
non-executive Chairman, succeeding Mr. Raymond.
Additionally, Brian W. Taylor was named Executive Vice President
and Chief Operating Officer (COO), succeeding John V. Keenan,
who has been granted a leave of absence. Mr. Taylor assumes
the COO responsibilities in addition to his current role as
Chief Commercial Officer. At the same time, the Board has
promoted Michael T. Avara from Senior Vice President and Chief
Financial Officer to Executive Vice President and Chief
Financial Officer. All changes were effective March 11,
2011.
Executive
Overview
The economic recovery has continued at a slow and uneven pace.
Persistent high unemployment and uncertainty in the economy have
adversely affected consumers and negatively impacted their
spending. In addition, construction spending remains at
depressed levels and many state governments are enacting
spending cutbacks, including workforce reductions and furloughs.
As a result of the still uncertain macroeconomic environment and
our specific challenges such as the start up of our
international operations, volatile fuel prices, and rate
pressures in Puerto Rico and in international markets, we remain
focused on a series of successful cost management efforts.
Container volumes during 2010 increased over 2009 largely due to
the extra week during fiscal year 2010 and the commencement of
our China service, which began operations in December 2010.
Operating revenue for year ended December 26, 2010
increased as a result of higher fuel surcharges, improved third
party terminal services, and the higher container volumes, which
was partially offset by the expiration of certain contracts with
the government, the loss of a transportation services agreement,
and a slight decrease in our rates, net of fuel. We are
experiencing ongoing competitive pricing pressures in our Puerto
Rico tradelane due in part to capacity that was added in April
2010 to the depressed market.
The increase in operating expense during the year ended
December 26, 2010 is primarily due to higher fuel prices,
three vessel incidents as a result of unusually harsh winter
weather conditions and mechanical issues, and incremental vessel
operating expenses as a result of an increase in dry-dockings.
The increase was partially offset by a decrease in selling,
general and administrative expenses, largely due to a decline in
legal and professional expenses associated with the Department
of Justice antitrust investigation and related legal
proceedings, as well as a decline in the performance incentive
plan expense, lower terminal rates, and our cost control efforts.
We entered into a plea agreement, dated February 23, 2011,
with the United States of America, under which we agreed to
plead guilty to a charge of violating federal antitrust laws
solely with respect to the Puerto Rico tradelane. We agreed to
pay a fine of $45.0 million over five years without
interest.
47
We recorded a charge during the year ended December 26,
2010 of $30.0 million, which represents the present value
of the expected installment payments.
On February 22, 2011, we and two other companies providing
ocean shipping services in the Puerto Rico tradelane entered
into a Memorandum of Understanding with the Commonwealth of
Puerto Rico and attorneys representing a putative class of
indirect purchasers. Under the Memorandum of Understanding, we
have agreed to resolve all of the alleged claims of the
Commonwealth of Puerto Rico and the indirect purchasers related
to ocean shipping services in the Puerto Rico tradelane.
Pursuant to the Memorandum of Understanding, the parties will
enter into a settlement agreement pursuant to which we and the
other two companies each agreed to pay $1.8 million as our
share of the settlement amount in exchange for a full release.
Such settlement agreement, when negotiated and entered into by
the parties, will be subject to court approval.
Operating expense for the year ended December 20, 2009
includes a $20 million charge for the potential settlement
of the Puerto Rico MDL.
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Year
|
|
|
Year
|
|
|
Year
|
|
|
|
Ended
|
|
|
Ended
|
|
|
Ended
|
|
|
|
December 26,
|
|
|
December 20,
|
|
|
December 21,
|
|
|
|
2010
|
|
|
2009
|
|
|
2008
|
|
|
|
(In thousands)
|
|
|
Operating revenue
|
|
$
|
1,162,505
|
|
|
$
|
1,124,215
|
|
|
$
|
1,270,978
|
|
Operating expense
|
|
|
1,168,355
|
|
|
|
1,101,927
|
|
|
|
1,224,916
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Operating (loss) income
|
|
$
|
(5,850
|
)
|
|
$
|
22,288
|
|
|
$
|
46,062
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Operating ratio
|
|
|
100.5
|
%
|
|
|
98.0
|
%
|
|
|
96.4
|
%
|
Revenue containers (units)
|
|
|
260,037
|
|
|
|
257,625
|
|
|
|
276,282
|
|
General
We believe that we are the nations leading Jones Act
container shipping and integrated logistics company, accounting
for approximately 36% of total U.S. marine container
shipments from the continental U.S. to Alaska, Puerto Rico
and Hawaii, constituting the three non-contiguous Jones Act
markets, and to Guam and Micronesia. Under the Jones Act, all
vessels transporting cargo between U.S. ports must, subject
to limited exceptions, be built in the U.S., registered under
the U.S. flag, manned by predominantly U.S. crews, and
owned and operated by
U.S.-organized
companies that are controlled and 75% owned by
U.S. citizens. In addition, on December 13, 2010, we
commenced our own weekly trans-Pacific liner service between
Asia and the U.S. West Coast. Our Five Star Express
(FSX) service connects with our warehousing and
distribution capabilities on the U.S. West Coast and
intermodal rail service to inland destinations to create an
integrated import/export solution. Using scheduled intermodal
service from Los Angeles every week, we offer express inland
service to Kansas City, Dallas, Chicago, Memphis, Atlanta and
Charlotte. During 2011, we expect to expand the inland express
network to other locations throughout the U.S.
We own or lease 20 vessels, 15 of which are fully qualified
Jones Act vessels, and approximately 31,000 cargo containers. We
also provide comprehensive shipping and logistics services in
our markets, including rail, trucking, warehousing, distribution
and non-vessel operating common carrier (NVOCC)
operations. We have long-term access to terminal facilities in
each of our ports, operating our terminals in Alaska, Hawaii,
and Puerto Rico and contracting for terminal services in the
seven ports in the continental U.S., as well as in the ports in
Guam, and Shanghai and Ningbo, China.
History and
Transactions
Our long operating history dates back to 1956, when
Sea-Land
pioneered the marine container shipping industry and established
our business. In 1958, we introduced container shipping to the
Puerto Rico market and in 1964 we pioneered container shipping
in Alaska with the first year-round scheduled vessel service. In
1987, we began providing container shipping services between the
48
U.S. west coast and Hawaii and Guam through our acquisition
from an existing carrier of all of its vessels and certain other
assets that were already serving that market. Today, as the only
Jones Act vessel operator with an integrated organization
serving Alaska, Puerto Rico, and Hawaii, we are uniquely
positioned to serve our customers that require shipping and
logistics services in more than one of these markets.
Horizon Lines, Inc., a Delaware corporation, (the
Company and together with its subsidiaries,
we) operates as a holding company for Horizon Lines,
LLC (Horizon Lines), a Delaware limited liability
company and wholly-owned subsidiary, Horizon Logistics, LLC
(Horizon Logistics), a Delaware limited liability
company and wholly-owned subsidiary, Horizon Lines of Puerto
Rico, Inc. (HLPR), a Delaware corporation and
wholly-owned subsidiary, and Hawaii Stevedores, Inc., a
Hawaii corporation (HSI).
In December 1999, CSX Corporation, the former parent of
Sea-Land
Domestic Shipping, LLC (SLDS), sold the
international marine container operations of
Sea-Land to
the A.P. Møller Maersk Group (Maersk) and SLDS
continued to be owned and operated by CSX Corporation as CSX
Lines, LLC. On February 27, 2003, Horizon Lines Holding
Corp. (HLHC) (which at the time was indirectly
majority-owned by Carlyle-Horizon Partners, L.P.) acquired from
CSX Corporation, 84.5% of CSX Lines, LLC, and 100% of CSX Lines
of Puerto Rico, Inc., which together with Horizon Logistics and
HSI constitute our business today. CSX Lines, LLC is now known
as Horizon Lines, LLC and CSX Lines of Puerto Rico, Inc. is now
known as Horizon Lines of Puerto Rico, Inc. The Company was
formed as an acquisition vehicle to acquire, on July 7,
2004, the equity interest in HLHC. The Company was formed at the
direction of Castle Harlan Partners IV. L.P. (CHP
IV), a private equity investment fund managed by Castle
Harlan, Inc. (Castle Harlan). In 2005, the Company
completed its initial public offering. Subsequent to the initial
public offering, the Company completed three secondary
offerings, including a secondary offering (pursuant to a shelf
registration) whereby CHP IV and other affiliated private equity
investment funds managed by Castle Harlan divested their
ownership in the Company.
Basis of
Presentation
The accompanying consolidated financial statements include the
consolidated accounts of the Company as of December 26,
2010, December 20, 2009 and December 21, 2008 and for
the fiscal years ended December 26, 2010, December 20,
2009 and December 21, 2008. Certain prior period balances
have been reclassified to conform to current period presentation.
The financial statements have been prepared assuming we will
continue as a going concern, which contemplates realization of
assets and the satisfaction of liabilities in the normal course
of business for a reasonable period following the date of these
financial statements. As discussed in more detail in Capital
Requirements and Liquidity, we expect to not be in compliance
with our debt covenants throughout 2011, which raises
substantial doubt about our ability to continue as a going
concern.
Fiscal
Year
We have a 52- or 53-week (every sixth or seventh year) fiscal
year that ends on the Sunday before the last Friday in December.
The fiscal year ended December 26, 2010 consisted of
53 weeks and the fiscal years ended December 20, 2009
and December 21, 2008 each consisted of 52 weeks.
Critical
Accounting Policies
We prepare our financial statements in conformity with
accounting principles generally accepted in the United States of
America. The preparation of our financial statements requires us
to make estimates and assumptions in the reported amounts of
revenues and expenses during the reporting period and in
reporting the amounts of assets and liabilities, and disclosures
of contingent assets and liabilities at the date of our
financial statements. Since many of these estimates and
assumptions are
49
based on future events which cannot be determined with
certainty, the actual results could differ from these estimates.
We believe that the application of our critical accounting
policies, and the estimates and assumptions inherent in those
policies, are reasonable. These accounting policies and
estimates are periodically re-evaluated and adjustments are made
when facts or circumstances dictate a change. Historically, we
have found the application of accounting policies to be
appropriate and actual results have not differed materially from
those determined using necessary estimates.
We believe the following accounting principles are critical
because they involve significant judgments, assumptions, and
estimates used in the preparation of our financial statements.
Revenue
Recognition
We account for transportation revenue based upon method two
under Emerging Issues Task Force
No. 91-9
Revenue and Expense Recognition for Freight Services in
Process. Under this method we record transportation
revenue for the cargo when shipped and an expense accrual for
the corresponding costs to complete delivery when the cargo
first sails from its point of origin. We believe that this
method of revenue recognition does not result in a material
difference in reported net income on an annual or quarterly
basis as compared to recording transportation revenue between
accounting periods based upon the relative transit time within
each respective period with expenses recognized as incurred. We
recognize revenue and related costs of sales for our terminal
and other services upon completion of services.
We recognize revenue from logistics operations as service is
rendered. Gross revenue consists of the total dollar value of
services purchased by shippers. Revenue and the associated costs
for the following services are recognized upon proof of delivery
of freight: truck brokerage, rail brokerage, expedited
international air, expedited domestic ground services, and
drayage. Horizon Logistics also offers warehousing/long-term
storage for which revenue is recognized based upon warehouse
space occupied during the reporting period.
Allowance for
Doubtful Accounts and Revenue Adjustments
We maintain an allowance for doubtful accounts based upon the
expected collectability of accounts receivable reflective of our
historical collection experience. In circumstances in which we
are aware of a specific customers inability to meet its
financial obligation (for example, bankruptcy filings, accounts
turned over for collection or litigation), we record a specific
reserve for the bad debts against amounts due. For all other
customers, we recognize reserves for these bad debts based on
the length of time the receivables are past due and other
customer specific factors including, type of service provided,
geographic location and industry. We monitor our collection risk
on an ongoing basis through the use of credit reporting
agencies. Accounts are written off after all means of
collection, including legal action, have been exhausted. We do
not require collateral from our trade customers.
In addition, we maintain an allowance for revenue adjustments
consisting of amounts reserved for billing rate changes that are
not captured upon load initiation. These adjustments generally
arise: (1) when the sales department contemporaneously
grants small rate changes (spot quotes) to customers
that differ from the standard rates in the system; (2) when
freight requires dimensionalization or is reweighed resulting in
a different required rate; (3) when billing errors occur;
and (4) when data entry errors occur. When appropriate,
permanent rate changes are initiated and reflected in the
system. These revenue adjustments are recorded as a reduction to
revenue.
Casualty and
Property Insurance Reserves
We purchase insurance coverage for our exposures related to
employee injuries (state workers compensation and
compensation under the Longshore and Harbor workers
compensation Act), vessel collisions and allisions, property
loss and damage, third party liability, and cargo loss and
50
damage. Most insurance policies include a deductible applicable
to each incident or vessel voyage and deductibles can change
from year to year as policies are renewed or replaced. Our
current insurance program includes deductibles ranging from $0
to $2,000,000. In most cases, our claims personnel work directly
with our insurers claims professionals or our third-party
claim administrators to continually update the anticipated
residual exposure for each claim. In this process, we evaluate
and monitor each claim individually, and use resources such as
historical experience, known trends, and third-party estimates
to determine the appropriate reserves for potential liability.
Changes in the perceived severity of previously reported claims,
significant changes in medical costs, and legislative changes
affecting the administration of our plans could significantly
impact the determination of appropriate reserves.
Goodwill and
Other Identifiable Intangible Assets
Goodwill is reviewed annually, or when events or circumstances
dictate, more frequently. The impairment review for goodwill
consists of a two- step process of first determining the fair
value of the reporting unit and comparing it to the carrying
value of the net assets allocated to the reporting unit. If the
fair value of the reporting unit exceeds the carrying value, no
further analysis or write-down of goodwill is required. If the
fair value of the reporting unit is less than the carrying value
of the net assets, the implied fair value of the reporting unit
is allocated to all the underlying assets and liabilities,
including both recognized and unrecognized tangible and
intangible assets, based on their fair value. If necessary,
goodwill is then written down to its implied fair value. The
indefinite-life intangible asset impairment review consists of a
comparison of the fair value of the indefinite-life intangible
asset with its carrying amount. If the carrying amount exceeds
its fair value, an impairment loss is recognized in an amount
equal to that excess. If the fair value exceeds its carrying
amount, the indefinite-life intangible asset is not considered
impaired.
The fair value of a reporting unit is based on quoted market
prices, if available. Quoted market prices are often not
available for individual reporting units. Accordingly, we base
the fair value of a reporting unit on an expected present value
technique. The expected present value technique for a reporting
unit consists of estimating expected future cash flows
discounted using a rate commensurate with the business risk. The
estimation of fair value utilizing discounted expected future
cash flows includes numerous uncertainties which require our
significant judgment when making assumptions of expected
revenue, operating costs, marketing, selling and administrative
expenses, as well as assumptions regarding the overall shipping
and logistics industries, competition, and general economic and
business conditions, among other factors.
The customer contracts and trademarks on the balance sheet as of
December 26, 2010 were valued on July 7, 2004, as part
of the Acquisition-Related Transactions, using the income
appraisal methodology. The income appraisal methodology includes
a determination of the present value of future monetary benefits
to be derived from the anticipated income, or ownership, of the
subject asset. The value of our customer contracts includes the
value expected to be realized from existing contracts as well as
from expected renewals of such contracts and is calculated using
unweighted and weighted total undiscounted cash flows as part of
the income appraisal methodology. The value of our trademarks
and service marks is based on various factors including the
strength of the trade or service name in terms of recognition
and generation of pricing premiums and enhanced margins. We
amortize customer contracts and trademarks and service marks on
a straight-line method over the estimated useful life of four to
fifteen years. Long-lived assets are reviewed annually, or more
frequently if events or changes in circumstances indicate that
the carrying amount of these assets may not be fully
recoverable. The assessment of possible impairment is based on
our ability to recover the carrying value of our asset based on
our estimate of its undiscounted future cash flows. If these
estimated future cash flows are less than the carrying value of
the asset, an impairment charge would be recognized for the
difference between the assets estimated fair value and its
carrying value.
The determination of fair value is based on quoted market prices
in active markets, if available. Such quoted market prices are
often not available for our identifiable intangible assets.
Accordingly,
51
we base fair value on projected future cash flows discounted at
a rate determined by management to be commensurate with the
business risk. The estimation of fair value utilizing discounted
forecasted cash flows includes numerous uncertainties which
require our significant judgment when making assumptions of
revenues, operating costs, marketing, selling and administrative
expenses, as well as assumptions regarding the overall shipping
and logistics industries, competition, and general economic and
business conditions, among other factors.
Vessel
Dry-docking
Under U.S. Coast Guard Rules, administered through the
American Bureau of Shippings alternative compliance
program, all vessels must meet specified seaworthiness standards
to remain in service carrying cargo between U.S. marine
terminals. Vessels must undergo regular inspection, monitoring
and maintenance, referred to as dry-docking, to maintain the
required operating certificates. These dry-dockings generally
occur every two and a half years, or twice every five years. The
costs of these scheduled dry-dockings are customarily deferred
and amortized over a
30-month
period beginning with the accounting period following the
vessels release from dry-dock because dry-dockings enable
the vessel to continue operating in compliance with
U.S. Coast Guard requirements.
We also take advantage of vessel dry-dockings to perform normal
repair and maintenance procedures on our vessels. These routine
vessel maintenance and repair procedures are expensed as
incurred. In addition, we will occasionally, during a vessel
dry-docking, replace vessel machinery or equipment and perform
procedures that materially enhance capabilities of a vessel. In
these circumstances, the expenditures are capitalized and
depreciated over the estimated useful lives.
Income
Taxes
Deferred tax assets represent expenses recognized for financial
reporting purposes that may result in tax deductions in the
future and deferred tax liabilities represent expense recognized
for tax purposes that may result in financial reporting expenses
in the future. Certain judgments, assumptions and estimates may
affect the carrying value of the valuation allowance and income
tax expense in the consolidated financial statements. We record
an income tax valuation allowance when the realization of
certain deferred tax assets, net operating losses and capital
loss carryforwards is not likely. In conjunction with the
election of tonnage tax, we revalued our deferred taxes to
accurately reflect the rates at which we expect such items to
reverse in future periods.
The application of income tax law is inherently complex. As
such, we are required to make many assumptions and judgments
regarding our income tax positions and the likelihood whether
such tax positions would be sustained if challenged.
Interpretations and guidance surrounding income tax laws and
regulations change over time. As such, changes in our
assumptions and judgments can materially affect amounts
recognized in the consolidated financial statements.
Stock-Based
Compensation
The value of each equity-based award is estimated on the date of
grant using the Black-Scholes option-pricing model. The
Black-Scholes model takes into account volatility in the price
of our stock, the risk-free interest rate, the estimated life of
the equity-based award, the closing market price of our stock
and the exercise price. Due to the relatively short period of
time since our stock became publicly traded, we base our
estimates of stock price volatility on the average of
(i) our historical stock price over the period in which it
has been publicly traded and (ii) historical volatility of
similar entities commensurate with the expected term of the
equity-based award; however, this estimate is neither predictive
nor indicative of the future performance of our stock. The
estimates utilized in the Black-Scholes calculation involve
inherent uncertainties and the application of management
judgment. In addition, we are required to estimate the expected
forfeiture rate and only recognize expense for those options
expected to vest.
52
Property and
Equipment
We capitalize property and equipment as permitted or required by
applicable accounting standards, including replacements and
improvements when costs incurred for those purposes extend the
useful life of the asset. We charge maintenance and repairs to
expense as incurred. Depreciation on capital assets is computed
using the straight-line method and ranges from 3 to
40 years. Our management makes assumptions regarding future
conditions in determining estimated useful lives and potential
salvage values. These assumptions impact the amount of
depreciation expense recognized in the period and any gain or
loss once the asset is disposed.
We evaluate each of our long-lived assets for impairment using
undiscounted future cash flows relating to those assets whenever
events or changes in circumstances indicate that the carrying
amount of an asset may not be recoverable. When undiscounted
future cash flows are not expected to be sufficient to recover
the carrying amount of an asset, the asset is written down to
its fair value.
Recent Accounting
Pronouncements
In January 2010, the Financial Accounting Standards Board
(FASB) issued an amendment to the accounting for
fair value measurements and disclosures. This amendment details
additional disclosures on fair value measurements, requires a
gross presentation of activities within a Level 3
roll-forward, and adds a new requirement to disclose transfers
in and out of Level 1 and Level 2 measurements. The
new disclosures are required of all entities that are required
to provide disclosures about recurring and nonrecurring fair
value measurements. This amendment is effective in the first
interim or reporting period beginning after December 15,
2009, with an exception for the gross presentation of
Level 3 roll-forward information, which is required for
annual reporting periods beginning after December 15, 2010,
and for interim reporting periods within those years. The
adoption of the provisions of this amendment required in the
first interim period after December 15, 2009 did not have a
material impact on our financial statement disclosures. In
addition, the adoption of the provisions of this amendment
required for periods beginning after December 15, 2010 is
not expected to have a material impact on our financial
statement disclosures.
In June 2009, the FASB issued authoritative guidance that amends
the evaluation criteria to identify the primary beneficiary of a
variable interest entity and requires ongoing assessment of
whether an enterprise is the primary beneficiary of the variable
interest entity. The determination of whether a reporting entity
is required to consolidate another entity is based on, among
other things, the other entitys purpose and design and the
reporting entitys ability to direct the activities that
most significantly impact the other entitys economic
performance. We adopted the provisions of the authoritative
guidance during the quarter ended March 21, 2010. There was
no impact on our consolidated results of operations and
financial position, other than the modification of certain
disclosures related to our involvement in variable interest
entities.
In June 2009, the FASB issued an amendment to the accounting and
disclosure requirements for transfers of financial assets. The
amendment modifies the derecognition guidance and eliminates the
exemption from consolidation for qualifying special-purpose
entities. We adopted the provisions of the authoritative
guidance during the quarter ended March 21, 2010 and there
was no impact on our consolidated results of operations and
financial position.
Shipping
Rates
We publish tariffs with rates rules and practices for all three
of our Jones Act trade routes and for Guam. These tariffs are
subject to regulation by the Surface Transportation Board
(STB). However, in the case of our Puerto Rico and
Alaska trade routes, we primarily ship containers on the basis
of confidential negotiated transportation service contracts that
are not subject to rate regulation by the STB. We also publish
tariffs for transportation of international cargo which are
subject to regulation by the Federal Maritime Commission
(FMC).
53
Seasonality
Our container volumes are subject to seasonal trends common in
the transportation industry, including our international
service. Financial results in the first quarter are normally
lower due to reduced loads during the winter months and as a
result of the Chinese New Years affect on our
international service. Volumes typically build to a peak in the
third quarter and early fourth quarter, which generally results
in higher revenues, improved margins, and increased earnings and
cash flows.
Results of
Operations
Operating
Revenue Overview
We derive our revenue primarily from providing comprehensive
shipping and logistics services to and from the continental
U.S. and Alaska, Puerto Rico, Hawaii, Guam and Asia. We
charge our customers on a per load basis and price our services
based primarily on the length of inland and ocean cargo
transportation hauls, type of cargo, and other requirements such
as shipment timing and type of container. In addition, we assess
fuel surcharges on a basis consistent with industry practice and
at times may incorporate these surcharges into our basic
transportation rates. There is occasionally a timing disparity
between volatility in our fuel costs and related adjustments to
our fuel surcharges (or the incorporation of adjusted fuel
surcharges into our base transportation rates) that may result
in variances in our fuel recovery.
During 2010, approximately 83% of our revenue was generated from
our shipping and logistics services in markets where the marine
trade is subject to the Jones Act or other U.S. maritime
laws. The balance of our revenue was derived from
(i) vessel loading and unloading services that we provide
for vessel operators at our terminals, (ii) agency services
that we provide for third-party shippers lacking administrative
presences in our markets, (iii) vessel space charter income
from third-parties in trade lanes not subject to the Jones Act,
(iv) shipping services in the Asia to U.S. coast
market, (v) warehousing services for third-parties, and
(vi) other non-transportation services.
As used in this
Form 10-K,
the term revenue containers refers to containers
that are transported for a charge, as opposed to empty
containers.
Cost of
Services Overview
Our cost of services consist primarily of vessel operating
costs, marine operating costs, inland transportation costs, land
costs and rolling stock rent. Our vessel operating costs consist
primarily of vessel fuel costs, crew payroll costs and benefits,
vessel maintenance costs, space charter costs, vessel insurance
costs and vessel rent. We view our vessel fuel costs as subject
to potential fluctuation as a result of changes in unit prices
in the fuel market. Our marine operating costs consist of
stevedoring, port charges, wharfage and various other costs to
secure vessels at the port and to load and unload containers to
and from vessels. Our inland transportation costs consist
primarily of the costs to move containers to and from the port
via rail, truck or barge. Our land costs consist primarily of
maintenance, yard and gate operations, warehousing operations
and terminal overhead in the terminals in which we operate.
Rolling stock rent consists primarily of rent for street
tractors, yard equipment, chassis, gensets and various dry and
refrigerated containers.
Year Ended
December 26, 2010 Compared to Year Ended December 20,
2009
We have a 52- or 53-week fiscal year (every sixth or seventh
year) that ends on the Sunday before the last Friday in
December. Fiscal year 2010 consisted of 53 weeks and fiscal
year 2009 consisted of 52 weeks.
54
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Year Ended
|
|
|
Year Ended
|
|
|
|
|
|
|
December 26,
|
|
|
December 20,
|
|
|
|
|
|
|
2010
|
|
|
2009
|
|
|
% Change
|
|
|
|
(In thousands)
|
|
|
Operating revenue
|
|
$
|
1,162,505
|
|
|
$
|
1,124,215
|
|
|
|
3.4
|
%
|
Operating expense:
|
|
|
|
|
|
|
|
|
|
|
|
|
Vessel
|
|
|
400,827
|
|
|
|
355,352
|
|
|
|
12.8
|
%
|
Marine
|
|
|
215,750
|
|
|
|
210,322
|
|
|
|
2.6
|
%
|
Inland
|
|
|
184,892
|
|
|
|
179,651
|
|
|
|
2.9
|
%
|
Land
|
|
|
147,488
|
|
|
|
140,586
|
|
|
|
4.9
|
%
|
Rolling stock rent
|
|
|
40,966
|
|
|
|
37,048
|
|
|
|
10.6
|
%
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Cost of services
|
|
|
989,923
|
|
|
|
922,959
|
|
|
|
7.3
|
%
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Depreciation and amortization
|
|
|
44,475
|
|
|
|
44,307
|
|
|
|
0.4
|
%
|
Amortization of vessel dry-docking
|
|
|
15,046
|
|
|
|
13,694
|
|
|
|
9.9
|
%
|
Selling, general and administrative
|
|
|
83,232
|
|
|
|
97,257
|
|
|
|
(14.4
|
)%
|
Legal settlements
|
|
|
31,770
|
|
|
|
20,000
|
|
|
|
58.9
|
%
|
Impairment of assets
|
|
|
2,655
|
|
|
|
1,867
|
|
|
|
42.2
|
%
|
Restructuring costs
|
|
|
2,057
|
|
|
|
787
|
|
|
|
161.4
|
%
|
Miscellaneous (income) expense, net
|
|
|
(803
|
)
|
|
|
1,056
|
|
|
|
(176.0
|
)%
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total operating expense
|
|
|
1,168,355
|
|
|
|
1,101,927
|
|
|
|
6.0
|
%
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Operating (loss) income
|
|
$
|
(5,850
|
)
|
|
$
|
22,288
|
|
|
|
(126.2
|
)%
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Operating ratio
|
|
|
100.5
|
%
|
|
|
98.0
|
%
|
|
|
2.5
|
%
|
Revenue containers (units)
|
|
|
260,037
|
|
|
|
257,625
|
|
|
|
0.9
|
%
|
Operating Revenue. Operating revenue increased
$38.3 million, or 3.4% during the year ended
December 26, 2010. This revenue increase can be attributed
to the following factors (in thousands):
|
|
|
|
|
Bunker and intermodal fuel surcharges increase
|
|
$
|
40,971
|
|
Non-transportation services increase
|
|
|
12,678
|
|
Revenue container volume increase
|
|
|
9,269
|
|
Expiration of government vessel management contract
|
|
|
(22,749
|
)
|
General rate decreases
|
|
|
(1,879
|
)
|
|
|
|
|
|
Total operating revenue increase
|
|
$
|
38,290
|
|
|
|
|
|
|
The revenue container volume increases are primarily due to the
commencement of our international service, increases in our
Alaska tradelane, and an extra week during fiscal year 2010,
offset by ongoing challenges in our Puerto Rico and Hawaii
tradelanes. General rate increases are implemented to mitigate
rising contractual costs. Bunker and intermodal fuel surcharges,
which are included in our transportation revenue, accounted for
approximately 14.6% of total revenue in the year ended
December 26, 2010 and approximately 11.5% of total revenue
in the year ended December 20, 2009. We adjust our bunker
and intermodal fuel surcharges as a result of changes in the
cost of bunker fuel for our vessels, in addition to diesel fuel
fluctuations passed on to us by our truck, rail, and barge
service providers. Fuel surcharges are evaluated regularly as
the price of fuel fluctuates, and we may at times incorporate
these surcharges into our base transportation rates that we
charge. The increase in non-transportation revenue is primarily
due to third party terminal services, which was partially offset
by the expiration of certain space charter agreements. Our
overall rate, net of fuel surcharges, was flat as a result of
increased rates in Hawaii and Alaska offset by continuing rate
pressure in Puerto Rico.
55
Cost of Services. The $67.0 million
increase in cost of services is primarily due to higher fuel
costs as a result of higher fuel prices and an increase in
container volumes, partially offset by a decrease in costs as a
result of the expiration of certain contracts with the
government for the management of its vessels.
Vessel expense, which is not primarily driven by revenue
container volume, increased $45.5 million for the year
ended December 26, 2010. This increase can be attributed to
the following factors (in thousands):
|
|
|
|
|
Vessel fuel costs increase
|
|
$
|
58,487
|
|
Labor and other vessel operating increase
|
|
|
10,052
|
|
Vessel space and lease charter expense increase
|
|
|
1,362
|
|
Government vessel management expense decrease
|
|
|
(24,426
|
)
|
|
|
|
|
|
Total vessel expense increase
|
|
$
|
45,475
|
|
|
|
|
|
|
The $58.5 million increase in fuel costs is comprised of a
$52.4 million increase due to fuel prices and a
$6.1 million increase in consumption due to additional
vessel operating days. The increase in labor and other vessel
operating expense is primarily due to additional vessel
operating expense associated with a higher number of
dry-dockings during 2010, contractual rate increases, and the
extra week during 2010. We continue to incur labor expenses with
the vessel in dry-dock, while also incurring expenses associated
with the spare vessel deployed as dry-dock relief. The increase
in vessel lease charter expense is due to the extra week during
fiscal year 2010.
Marine expense is comprised of the costs incurred to bring
vessels into and out of port, and to load and unload containers.
The types of costs included in marine expense are stevedoring
and associated benefits, pilotage fees, tug fees, government
fees, wharfage fees, dockage fees, and line handler fees. The
$5.4 million increase in marine expense during the year
ended December 26, 2010 was primarily due to an increase in
container volumes, increases in multi-employer plan benefit
assessments for our west coast union employees, contractual rate
increases, and an extra week during fiscal year 2010, partially
offset by terminal savings.
Inland expense increased to $184.9 million for the year
ended December 26, 2010 compared to $179.7 million
during the year ended December 20, 2009. The
$5.2 million increase in inland expense is primarily due to
higher fuel costs and an increase in container volumes,
partially offset by our cost control efforts.
Land expense is comprised of the costs included within the
terminal for the handling, maintenance and storage of
containers, including yard operations, gate operations,
maintenance, warehouse and terminal overhead.
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Year Ended
|
|
|
Year Ended
|
|
|
|
|
|
|
December 26,
|
|
|
December 20,
|
|
|
|
|
|
|
2010
|
|
|
2009
|
|
|
% Change
|
|
|
|
(In thousands)
|
|
|
Land expense:
|
|
|
|
|
|
|
|
|
|
|
|
|
Maintenance
|
|
$
|
54,548
|
|
|
$
|
49,585
|
|
|
|
10.0
|
%
|
Terminal overhead
|
|
|
55,319
|
|
|
|
54,413
|
|
|
|
1.7
|
%
|
Yard and gate
|
|
|
29,830
|
|
|
|
29,169
|
|
|
|
2.3
|
%
|
Warehouse
|
|
|
7,791
|
|
|
|
7,419
|
|
|
|
5.0
|
%
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total land expense
|
|
$
|
147,488
|
|
|
$
|
140,586
|
|
|
|
4.9
|
%
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Non-vessel related maintenance expenses increased primarily due
to higher fuel costs and contractual rate increases in our
offshore locations.
Rolling stock expense increased $3.9 million or 10.6%
during the year ended December 26, 2010 versus the year
ended December 20, 2009. This increase is primarily related
to an increase in the
56
quantity of leased containers and chassis in replacement of our
previous equipment sharing arrangements and to fund our
international operations.
Depreciation and Amortization. Depreciation
and amortization was $44.5 million during the year ended
December 26, 2010 compared to $44.3 million for the
year ended December 20, 2009. The increase in
depreciation-owned vessels and amortization of intangible assets
is due to additional depreciation and amortization expense
recorded during the extra week of fiscal 2010. The decrease in
depreciation and amortization-other is due to certain
capitalized software assets becoming fully depreciated and no
longer subject to depreciation expense, partially offset by
additional depreciation expense recorded as a result of an extra
week during fiscal year in 2010 and an increase in the number of
containers.
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Year Ended
|
|
|
Year Ended
|
|
|
|
|
|
|
December 26,
|
|
|
December 20,
|
|
|
%
|
|
|
|
2010
|
|
|
2009
|
|
|
Change
|
|
|
|
(In thousands)
|
|
|
Depreciation and amortization:
|
|
|
|
|
|
|
|
|
|
|
|
|
Depreciation owned vessels
|
|
$
|
9,549
|
|
|
$
|
9,186
|
|
|
|
4.0
|
%
|
Depreciation and amortization other
|
|
|
14,229
|
|
|
|
14,816
|
|
|
|
(4.0
|
)%
|
Amortization of intangible assets
|
|
|
20,697
|
|
|
|
20,305
|
|
|
|
1.9
|
%
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total depreciation and amortization
|
|
$
|
44,475
|
|
|
$
|
44,307
|
|
|
|
0.4
|
%
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Amortization of vessel dry-docking
|
|
$
|
15,046
|
|
|
$
|
13,694
|
|
|
|
9.9
|
%
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Amortization of Vessel
Dry-docking. Amortization of vessel dry-docking
was $15.0 million during the year ended December 26,
2010 compared to $13.7 million for the year ended
December 20, 2009. Amortization of vessel dry-docking
fluctuates based on the timing of dry-dockings, the number of
dry-dockings that occur during a given period, and the amount of
expenditures incurred during the dry-dockings. Dry-dockings
generally occur every two and a half years and historically we
have dry-docked approximately six vessels per year.
Selling, General and Administrative. Selling,
general and administrative costs decreased to $83.2 million
for the year ended December 26, 2010 compared to
$97.3 million for the year ended December 20, 2009, a
decline of $14.1 million or 14.4%. This decrease is
primarily comprised of a $6.9 million decline in legal and
professional expenses associated with the Department of Justice
antitrust investigation and related legal proceedings, a
$5.4 million decrease in the accrual related to our
performance incentive plan, a $1.0 million reduction in
stock-based compensation, and $1.7 million in savings
related to our cost control efforts, including a reduction in
professional fees, travel and entertainment, meetings and
seminars, charitable contributions, advertising, and the
elimination of certain perquisites for our executive officers.
Legal Settlements. We entered into a plea
agreement, dated February 23, 2011, with the
United States of America, and we agreed to plead guilty to
a charge of violating federal antitrust laws solely with respect
to the Puerto Rico tradelane. We agreed to pay a fine of
$45.0 million over five years without interest. We recorded
a charge of $30.0 million, which represents the present
value of the expected installment payments.
On February 22, 2011, we and two other companies providing
ocean shipping services in the Puerto Rico tradelane entered
into a Memorandum of Understanding with the Commonwealth of
Puerto Rico and attorneys representing a putative class of
indirect purchasers. Under the Memorandum of Understanding, we
have agreed to resolve all of the alleged claims of the
Commonwealth of Puerto Rico and the indirect purchasers related
to ocean shipping services in the Puerto Rico tradelane.
Pursuant to the Memorandum of Understanding, the parties will
enter into a settlement agreement pursuant to which we agreed to
pay a total of $1.8 million as our share of the settlement
amount in exchange for a full release. Such settlement
agreement, when negotiated and entered into by the parties, will
be subject to court approval.
57
On June 11, 2009, we entered into a settlement agreement
with the plaintiffs in the Puerto Rico MDL. Under the settlement
agreement, which remains subject to court approval, we have
agreed to pay $20.0 million and to certain base-rate
freezes, to resolve claims for alleged antitrust violations in
the Puerto Rico tradelane.
Impairment Charge. Impairment of assets of
$2.7 million during the year ended December 26, 2010
related to certain owned and leased equipment. Impairment of
assets of $1.9 million during the year ended
December 20, 2009 related to a write-down of the carrying
value of our spare vessels.
Restructuring Charge. Restructuring costs
during the year ended December 26, 2010 included
$2.1 million related to severance costs and other costs
associated with our 2010 workforce reduction initiative.
Restructuring costs of $0.8 million during the year ended
December 20, 2009 included $0.7 million and
$0.1 million related to severance costs and other costs
associated with our 2008 workforce reduction initiative,
respectively.
Miscellaneous (Income) Expense,
Net. Miscellaneous (income) expense, net during
2010 includes a $0.7 million gain on the sale of our
interest in a joint venture. In addition, bad debt expense
decreased $1.2 million during the year ended
December 26, 2010 as compared to the year ended
December 20, 2009.
Unallocated
Expenses
Interest Expense, Net. Interest expense, net
of $40.1 million for the year ended December 26, 2010
was higher compared to $38.0 million during the year ended
December 20, 2009. The increase in interest expense was due
to higher interest rates payable on the outstanding debt as a
result of the June 2009 amendment to our Senior Credit Facility.
Income Tax Expense. The effective tax rate for
the years ended December 26, 2010 and December 20,
2009 was (0.7)% and (66.9)%, respectively. During the second
quarter of 2009, we determined that it was unclear as to the
timing of when we will generate sufficient taxable income to
realize our deferred tax assets. Accordingly, we recorded a
valuation allowance against our deferred tax assets. Although we
have recorded a valuation allowance against our deferred tax
assets, it does not affect our ability to utilize our deferred
tax assets to offset future taxable income. Until such time that
we determine it is more likely than not that we will generate
sufficient taxable income to realize our deferred tax assets,
income tax benefits associated with future period losses will be
fully reserved. As a result, we do not expect to record a
current or deferred tax benefit or expense and only minimal
state tax provisions during those periods.
58
Year Ended
December 20, 2009 Compared to Year Ended December 21,
2008
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Year Ended
|
|
|
Year Ended
|
|
|
|
|
|
|
December 20,
|
|
|
December 21,
|
|
|
|
|
|
|
2009
|
|
|
2008
|
|
|
% Change
|
|
|
|
|
|
|
(In thousands)
|
|
|
|
|
|
Operating revenue
|
|
$
|
1,124,215
|
|
|
$
|
1,270,978
|
|
|
|
(11.5
|
)%
|
Operating expense:
|
|
|
|
|
|
|
|
|
|
|
|
|
Vessel
|
|
|
355,352
|
|
|
|
439,552
|
|
|
|
(19.2
|
)%
|
Marine
|
|
|
210,322
|
|
|
|
205,907
|
|
|
|
2.1
|
%
|
Inland
|
|
|
179,651
|
|
|
|
207,784
|
|
|
|
(13.5
|
)%
|
Land
|
|
|
140,586
|
|
|
|
150,552
|
|
|
|
(6.6
|
)%
|
Rolling stock rent
|
|
|
37,048
|
|
|
|
44,076
|
|
|
|
(15.9
|
)%
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Cost of services
|
|
|
922,959
|
|
|
|
1,047,871
|
|
|
|
(11.9
|
)%
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Depreciation and amortization
|
|
|
44,307
|
|
|
|
44,537
|
|
|
|
(0.5
|
)%
|
Amortization of vessel dry-docking
|
|
|
13,694
|
|
|
|
17,162
|
|
|
|
(20.2
|
)%
|
Selling, general and administrative
|
|
|
97,257
|
|
|
|
103,328
|
|
|
|
(5.9
|
)%
|
Settlement of class action lawsuit
|
|
|
20,000
|
|
|
|
|
|
|
|
100.0
|
%
|
Impairment of assets
|
|
|
1,867
|
|
|
|
6,030
|
|
|
|
(69.0
|
)%
|
Restructuring costs
|
|
|
787
|
|
|
|
3,126
|
|
|
|
(74.8
|
)%
|
Miscellaneous expense, net
|
|
|
1,056
|
|
|
|
2,862
|
|
|
|
(63.1
|
)%
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total operating expense
|
|
|
1,101,927
|
|
|
|
1,224,916
|
|
|
|
(10.0
|
)%
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Operating income
|
|
$
|
22,288
|
|
|
$
|
46,062
|
|
|
|
(51.6
|
)%
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Operating ratio
|
|
|
98.0
|
%
|
|
|
96.4
|
%
|
|
|
1.6
|
%
|
Revenue containers (units)
|
|
|
257,625
|
|
|
|
276,282
|
|
|
|
(6.8
|
)%
|
Operating Revenue. Operating revenue decreased
$146.8 million, or 11.5%, during the year ended
December 20, 2009. This revenue decrease can be attributed
to the following factors (in thousands):
|
|
|
|
|
Bunker and intermodal fuel surcharges decrease
|
|
$
|
(79,226
|
)
|
Revenue container volume decrease
|
|
|
(60,487
|
)
|
Other non-transportation services decrease
|
|
|
(19,237
|
)
|
Revenue container rate increase
|
|
|
12,187
|
|
|
|
|
|
|
Total operating revenue decrease
|
|
$
|
(146,763
|
)
|
|
|
|
|
|
The revenue container volume decline was primarily due to
deteriorating market conditions in Puerto Rico and Hawaii and
was partially offset by general rate increases. Bunker and
intermodal fuel surcharges, which are included in our
transportation revenue, accounted for approximately 11.5% of
total revenue in the year ended December 20, 2009 and
approximately 16.4% of total revenue in the year ended
December 21, 2008. We adjusted our bunker and intermodal
fuel surcharges several times throughout 2009 and 2008 as a
result of fluctuations in the cost of fuel for our vessels, in
addition to fuel fluctuations passed on to us by our truck,
rail, and barge service providers. Fuel surcharges are evaluated
regularly as the price of fuel fluctuates, and we may at times
incorporate these surcharges into our base transportation rates
that we charge. The decrease in non-transportation revenue is
primarily due to lower space charter revenue resulting from a
decline in fuel surcharges, a reduction in terminal services and
the expiration of a government vessel management contract.
59
Cost of Services. The $124.9 million
reduction in cost of services is primarily due to lower fuel
costs as a result of a decrease in fuel prices and a decline in
inland costs as a result of lower container volumes, and reduced
expenses associated with our cost control efforts.
Vessel expense, which is not primarily driven by revenue
container volume, decreased $84.2 million for the year
ended December 20, 2009. This decrease can be attributed to
the following factors (in thousands):
|
|
|
|
|
Vessel fuel costs decline
|
|
$
|
(81,014
|
)
|
Vessel space charter expense decrease
|
|
|
(1,655
|
)
|
Labor and other vessel operating decreases
|
|
|
(1,531
|
)
|
|
|
|
|
|
Total vessel expense decrease
|
|
$
|
(84,200
|
)
|
|
|
|
|
|
The $81.0 million reduction in fuel costs is comprised of a
$73.2 million reduction due to lower fuel prices and a
$7.8 million decline due to lower daily consumption as a
result of lower active vessel operating days, changes in vessel
deployment, and our focus on both departure and arrival schedule
integrity lowering overall consumption. The decline in labor and
other vessel operating expense is due to a decrease in the
expense accrual for voyages in progress at the end of the year
and the recovery of certain employer-paid payroll taxes,
partially offset by more operating days in 2009 due to three
more dry-dockings as compared to 2008. We continue to incur
labor expenses associated with the vessels in dry-dock, while at
the same time incurring expenses associated with the spare
vessel deployed to serve as dry-dock relief.
Marine expense is comprised of the costs incurred to bring
vessels into and out of port, and to load and unload containers.
The types of costs included in marine expense are stevedoring
and associated benefits, pilotage fees, tug fees, government
fees, wharfage fees, dockage fees, and line handler fees. Marine
expense of $210.3 million for the year ended
December 20, 2009 increased $4.4 million as compared
to the year ended December 21, 2008 as the increases in
multi-employer plan benefit assessments for our west coast union
employees and contractual rate increases were partially offset
by a decrease in marine expense related to lower container
volumes.
Inland expense declined to $179.7 million for the year
ended December 20, 2009 from $207.8 million for the
year ended December 21, 2008, a decrease of
$28.1 million or 13.5%. The decrease in inland expense is
due to lower fuel costs, lower container volumes and our cost
control efforts.
Land expense is comprised of the costs included within the
terminal for the handling, maintenance and storage of
containers, including yard operations, gate operations,
maintenance, warehouse and terminal overhead.
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Year Ended
|
|
|
Year Ended
|
|
|
|
|
|
|
December 20,
|
|
|
December 21,
|
|
|
|
|
|
|
2009
|
|
|
2008
|
|
|
% Change
|
|
|
|
(In thousands)
|
|
|
Land expense:
|
|
|
|
|
|
|
|
|
|
|
|
|
Maintenance
|
|
$
|
49,585
|
|
|
$
|
54,163
|
|
|
|
(8.5
|
)%
|
Terminal overhead
|
|
|
54,413
|
|
|
|
59,211
|
|
|
|
(8.1
|
)%
|
Yard and gate
|
|
|
29,169
|
|
|
|
28,720
|
|
|
|
1.6
|
%
|
Warehouse
|
|
|
7,419
|
|
|
|
8,458
|
|
|
|
(12.3
|
)%
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total land expense
|
|
$
|
140,586
|
|
|
$
|
150,552
|
|
|
|
(6.6
|
)%
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Non-vessel related maintenance expenses decreased primarily due
to lower fuel costs. Terminal overhead decreased primarily due
to lower utilities expense, a decline in compensation costs as a
result of the reduction in workforce, and a decrease in
severance charges related to certain union employees who elected
early retirement. Yard and gate expense is comprised of the
costs associated
60
with moving cargo into and out of the terminal facility and the
costs associated with the storage of equipment and revenue loads
in the terminal facility. Yard and gate expenses increased
primarily as a result of $0.2 million in costs due to a
one-time stevedoring revenue opportunity, a $0.2 million
write down of certain prepaid capital expenditures related to
our San Juan, Puerto Rico port redevelopment project as a
result of the bankruptcy filing of the general contractor, and
$0.2 million of rate increases in the monitoring of
refrigerated containers.
Rolling stock expense decreased $7.0 million or 15.9%
during the year ended December 20, 2009 as compared to the
year ended December 21, 2008. This decrease is primarily
due to the off-hire of certain leased container units and
increased efficiencies in association with our cost control
efforts.
Depreciation and Amortization. Depreciation
and amortization was $44.3 million during the year ended
December 20, 2009 compared to $44.5 million for the
year ended December 21, 2008. The decrease in
depreciation-owned vessels is due to certain vessel assets
becoming fully depreciated and no longer subject to depreciation
expense.
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Year Ended
|
|
|
Year Ended
|
|
|
|
|
|
|
December 20,
|
|
|
December 21,
|
|
|
|
|
|
|
2009
|
|
|
2008
|
|
|
% Change
|
|
|
|
(In thousands)
|
|
|
Depreciation and amortization:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Depreciation owned vessels
|
|
$
|
9,186
|
|
|
$
|
9,627
|
|
|
|
|
|
|
|
(4.6
|
)%
|
Depreciation and amortization other
|
|
|
14,816
|
|
|
|
14,605
|
|
|
|
|
|
|
|
1.4
|
%
|
Amortization of intangible assets
|
|
|
20,305
|
|
|
|
20,305
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total depreciation and amortization
|
|
$
|
44,307
|
|
|
$
|
44,537
|
|
|
|
|
|
|
|
(0.5
|
)%
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Amortization of vessel dry-docking
|
|
$
|
13,694
|
|
|
$
|
17,162
|
|
|
|
|
|
|
|
(20.2
|
)%
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Amortization of Vessel
Dry-docking. Amortization of vessel dry-docking
was $13.7 million during the year ended December 20,
2009 compared to $17.2 million for the year ended
December 21, 2008. Amortization of vessel dry-docking
fluctuates based on the timing of dry-dockings, the number of
dry-dockings that occur during a given period, and the amount of
expenditures incurred during the dry-dockings. Dry-dockings
generally occur every two and a half years and historically we
have dry-docked approximately six vessels per year.
Selling, General and Administrative. Selling,
general and administrative costs decreased to $97.3 million
for the year ended December 20, 2009 compared to
$103.3 million for the year ended December 21, 2008, a
decline of $6.0 million or 5.9%. This decrease is comprised
of a $4.3 million reduction in consultant fees incurred
during 2008 related to our process re-engineering initiative,
$5.6 million of salary savings related to the reduction in
workforce, and $0.6 million decline in stock-based
compensation expense, partially offset by $1.5 million of
higher expenses related to the antitrust investigation and
related legal proceedings, $3.4 million related to our
performance incentive plan, and $1.0 million increase in
legal fees unrelated to the antitrust investigation.
Settlement of Class Action Lawsuit. On
June 11, 2009, we entered into a settlement agreement with
the plaintiffs in the Puerto Rico MDL. Under the settlement
agreement, which remains subject to court approval, we have
agreed to pay $20.0 million and to certain base-rate
freezes, to resolve claims for alleged antitrust violations in
the Puerto Rico tradelane.
Impairment Charge. Impairment of assets of
$1.9 million during the year ended December 20, 2009
related to a write-down of the carrying value of our spare
vessels. Impairment of assets during the year ended
December 21, 2008 included $3.3 million related to our
spare vessels and $2.7 million related to certain owned and
leased equipment.
Restructuring Charge. Restructuring costs of
$0.8 million during the year ended December 20, 2009
included $0.7 million and $0.1 million related to
severance costs and other costs associated with
61
our workforce reduction initiative, respectively. The
$0.7 million of severance costs included $0.5 million
related to the acceleration of certain stock-based compensation
awards. Restructuring costs during the year ended
December 21, 2008 included $3.0 million and
$0.1 million related to severance costs and contract
termination and legal costs, respectively.
Miscellaneous Expense, Net. Miscellaneous
expense, net decreased $1.8 million during the years ended
December 20, 2009 compared to the year ended
December 21, 2008 primarily as a result of lower bad debt
expense during 2009 due to a decrease in revenue.
Unallocated
Expenses
Interest Expense, Net. Interest expense, net
of $38.0 million for the year ended December 20, 2009
was lower compared to $39.9 million during the year ended
December 21, 2008. The increase in interest expense as a
result of a higher interest rates payable on the outstanding
debt as a result of the June 2009 amendment to our Senior Credit
Facility was more than offset by the lower outstanding balance
on the revolving line of credit during 2009.
Income Tax Expense. The effective tax rate for
the years ended December 20, 2009 and December 21,
2008 was (66.9)% and (67.0)%, respectively. During the second
quarter of 2009, we determined that it was unclear as to the
timing of when we will generate sufficient taxable income to
realize our deferred tax assets. Accordingly, we recorded a
valuation allowance against our deferred tax assets. Although we
have recorded a valuation allowance against our deferred tax
assets, it does not affect our ability to utilize our deferred
tax assets to offset future taxable income. Until such time that
we determine it is more likely than not that we will generate
sufficient taxable income to realize our deferred tax assets,
income tax benefits associated with future period losses will be
fully reserved. As such, the Company does not expect to record a
current or deferred federal tax benefit or expense and only
minimal state tax provisions during those periods.
During 2006, we elected the application of tonnage tax. Prior to
recording a valuation allowance against our deferred tax assets,
the effective tax rate was impacted by our income from
qualifying shipping activities as well as the income from our
non-qualifying shipping activities and will fluctuate based on
the ratio of income from qualifying and non-qualifying
activities and the relative size of our consolidated income
(loss) before income taxes.
Liquidity and
Capital Resources
Our principal sources of funds have been (i) earnings
before non-cash charges and (ii) borrowings under debt
arrangements. Our principal uses of funds have been
(i) capital expenditures on our container fleet, our
terminal operating equipment, improvements to our owned and
leased vessel fleet, and our information technology systems,
(ii) vessel dry-docking expenditures, (iii) working
capital consumption, (iv) principal and interest payments
on our existing indebtedness, and (v) dividend payments to
our common stockholders. Cash totaled $2.8 million at
December 26, 2010. As of December 26, 2010, total
unused borrowing capacity under the revolving credit facility
was $113.7 million, after taking into account
$100.0 million outstanding under the revolver and
$11.3 million utilized for outstanding letters of credit.
Based on our leverage ratio, effective borrowing availability
under the revolving credit facility was $57.6 million as of
December 26, 2010. We expect a covenant default under the
financial covenants in our revolving credit facility beginning
in the third quarter of 2011. We anticipate working with our
lenders to obtain amendments or to refinance prior to any
possible covenant noncompliance; however, if we do not obtain a
waiver or are unable to refinance, we may not be able to borrow
under the revolving credit facility.
62
Operating
Activities
Net cash provided by operating activities was $44.4 million
for the year ended December 26, 2010 compared to
$61.1 million for the year ended December 20, 2009, a
decrease of $16.7 million. The decrease in cash provided by
operating activities is primarily due to the following (in
thousands):
|
|
|
|
|
Earnings adjusted for non-cash charges
|
|
$
|
(27,016
|
)
|
Increase in accounts receivable
|
|
|
(12,409
|
)
|
Increase in payments related to dry-dockings
|
|
|
(4,424
|
)
|
Increase in accrual for legal settlements
|
|
|
11,770
|
|
Decrease in payments related to Department of Justice antitrust
investigation and related legal proceedings
|
|
|
7,906
|
|
Decrease in payments related to restructuring and early
termination of leased assets
|
|
|
5,855
|
|
Other increase in working capital, net
|
|
|
1,669
|
|
|
|
|
|
|
|
|
$
|
(16,649
|
)
|
|
|
|
|
|
Net cash provided by operating activities decreased by
$27.3 million to $61.1 million for the year ended
December 20, 2009 from $88.4 million for the year
ended December 21, 2008. Net earnings adjusted for
depreciation, amortization, deferred income taxes, accretion and
other non-cash operating activities, which includes non-cash
stock-based compensation expense, resulted in cash flow
generation of $61.0 million for the year ended
December 20, 2009 compared to $92.3 million for the
year ended December 20, 2008, a decrease of
$31.3 million. Cash provided by operating activities
decreased as a result of an increase in payments related to the
Department of Justice investigation and related legal
proceedings and payments related to restructuring and the early
termination of certain leased assets.
Investing
Activities
Net cash used in investing activities was $14.7 million for
the year ended December 26, 2010 compared to
$11.7 million for the year ended December 20, 2009.
The increase is primarily related to a $3.4 million
increase in capital spending and a $0.8 decrease in proceeds
from the sale of equipment, partially offset by proceeds of
$1.1 million received as a result of the sale of our
interest in a joint venture.
Net cash used in investing activities was $11.7 million for
the year ended December 20, 2009 compared to
$38.1 million for the year ended December 21, 2008.
The reduction is primarily related to a $25.7 million
decrease in capital spending. Capital expenditures during the
years ended December 20, 2009 and December 21, 2008
include $2.5 million and $14.1 million, respectively,
of progress payments for three new cranes in our Anchorage,
Alaska terminal.
Financing
Activities
Net cash used in financing activities during the year ended
December 26, 2010 was $25.1 million compared to
$44.8 million for the year ended December 20, 2009.
The net cash used in financing activities during the year ended
December 26, 2010 included $18.8 million of net debt
repayments and $6.3 million of dividends to stockholders.
In addition, during the year ended December 20, 2009, we
paid $3.5 million in financing costs related to fees
associated with the amendment to the Senior Credit Facility.
Net cash used in financing activities during the year ended
December 20, 2009 was $44.8 million compared to
$51.3 million for the year ended December 21, 2008.
The net cash used in financing activities during the year ended
December 20, 2009 included $28.0 million of net debt
repayments and $13.4 million of dividends to stockholders.
In addition, during the year ended December 20, 2009,
63
we paid $3.5 million in financing costs related to fees
associated with the amendment to the Senior Credit Facility.
Stock Repurchase
Program
On November 19, 2007, our Board of Directors authorized the
Company to commence a stock repurchase program to buy back up to
$50.0 million worth of our common stock. The program
allowed us to purchase shares through open market repurchases
and privately negotiated transactions at a price of $26.00 per
share or less until the programs expiration on
December 31, 2008. We acquired 1,172,700 shares at a
total cost of $20.7 million under this program during the
fourth quarter of 2007. We completed our share repurchase
program in the first quarter of 2008, acquiring an additional
1,627,500 shares at a total cost of $29.3 million.
Capital
Requirements and Liquidity
We are closely managing our cash flows, including capital
spending and various cost savings initiatives, based on overall
business conditions including extremely high fuel prices and
rate pressures. We will defer or limit capital additions where
economically feasible. Based upon our current level of
operations and assuming we are able to obtain relief from our
lenders if we breach a covenant, we believe that cash flow from
operations and available cash, together with borrowings
available under the senior credit facility, will be adequate to
meet our liquidity needs throughout 2011. In addition, we have
agreed that in the event our cash balance exceeds
$17.5 million , we will not request borrowing under the
Senior Credit Facility and, if such balance is in excess of that
amount for more than three consecutive business days, to reduce
borrowing under the Senior Credit Facility by the amount of the
excess.
During 2011, we expect to spend approximately $28.0 million
and $22.0 million on capital expenditures and dry-docking
expenditures, respectively. Such capital expenditures will
include terminal infrastructure and equipment, and vessel
regulatory, modification, and maintenance initiatives. We also
expect to spend approximately $16.0 million during 2011 for
legal settlements and legal expenses associated with the DOJ
investigation. We intend to utilize our cash flows for working
capital needs, to make debt repayments, and to fund the
potential settlement of the DOJ investigation, the indirect
purchaser litigation, and the Puerto Rico MDL. Due to the
seasonality within our business, we will utilize borrowings
under the senior credit facility in the first half of 2011, but
plan to repay such borrowings in the second half of the year.
We expect that we will experience a covenant default under the
indenture related to our Notes. We have until May 21, 2011
to obtain a waiver from the holders of the Notes. The remedies
available to the indenture trustee in the event of default
include acceleration of all principal and interest payments.
Although we amended our Senior Credit Facility in March 2011, we
expect to not be in compliance with the revised covenants
beginning in the third quarter of 2011. We expect our financial
results will be negatively impacted by softness in international
rates, as well as by volatile fuel prices and by our ability to
revise fuel surcharges accordingly. Noncompliance with the
financial covenants in the Senior Credit Facility constitutes an
event of default, which, if not waived, could prevent us from
making borrowings under the Senior Credit Facility. We
anticipate working with our lenders to obtain amendments or to
refinance prior to any possible covenant noncompliance; however
we cannot assure you that we will be able to secure such
amendments or a refinancing.
Due to cross default provisions, we have classified our
obligations under the Notes and Senior Credit Facility totaling
$523.8 million as current liabilities in the accompanying
Consolidated Balance Sheet as of December 26, 2010. These
factors, among others, raise substantial doubt that we will be
able to continue as a going concern.
64
Contractual
Obligations and Off-Balance Sheet Arrangements
Contractual obligations as of December 26, 2010 are as
follows (in thousands):
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total
|
|
|
|
|
|
|
|
|
|
|
|
After
|
|
|
|
Obligations
|
|
|
2011
|
|
|
2012-2013
|
|
|
2014-2016
|
|
|
2016
|
|
|
Principal and operating lease obligations:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Senior credit facility(1)
|
|
$
|
193,750
|
|
|
$
|
18,750
|
|
|
$
|
175,000
|
|
|
$
|
|
|
|
$
|
|
|
4.25% convertible senior notes(1)
|
|
|
330,000
|
|
|
|
|
|
|
|
330,000
|
|
|
|
|
|
|
|
|
|
Operating leases(2)
|
|
|
658,080
|
|
|
|
100,373
|
|
|
|
211,361
|
|
|
|
203,311
|
|
|
|
143,035
|
|
Capital lease
|
|
|
9,158
|
|
|
|
1,629
|
|
|
|
2,614
|
|
|
|
2,268
|
|
|
|
2,647
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Subtotal
|
|
|
1,190,988
|
|
|
|
120,752
|
|
|
|
718,975
|
|
|
|
205,579
|
|
|
|
145,682
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Interest obligations:(3)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Senior credit facility
|
|
|
22,291
|
|
|
|
6,704
|
|
|
|
15,587
|
|
|
|
|
|
|
|
|
|
4.25% convertible senior notes
|
|
|
28,050
|
|
|
|
14,025
|
|
|
|
14,025
|
|
|
|
|
|
|
|
|
|
Capital lease
|
|
|
3,160
|
|
|
|
857
|
|
|
|
1,239
|
|
|
|
787
|
|
|
|
277
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Subtotal
|
|
|
53,501
|
|
|
|
21,586
|
|
|
|
30,851
|
|
|
|
787
|
|
|
|
277
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Legal settlements
|
|
|
56,767
|
|
|
|
12,767
|
|
|
|
4,000
|
|
|
|
20,000
|
|
|
|
20,000
|
|
Other commitments(4)
|
|
|
15,151
|
|
|
|
14,932
|
|
|
|
219
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total obligations
|
|
$
|
1,316,407
|
|
|
$
|
170,037
|
|
|
$
|
754,045
|
|
|
$
|
226,366
|
|
|
$
|
165,959
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Standby letters of credit
|
|
$
|
11,272
|
|
|
$
|
11,272
|
|
|
$
|
|
|
|
$
|
|
|
|
$
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(1) |
|
As discussed in more detail in Capital Requirements and
Liquidity, we may not be in compliance with our debt covenants
throughout 2011. We expect that we will experience a covenant
default under the indenture related to our Notes. We have until
May 21, 2011 to obtain a waiver from the holders of the
Notes. The remedies available to the indenture trustee in the
event of default include acceleration of all principal and
interest payments. In addition, The Senior Credit Facility
contains cross default provisions and certain acceleration
clauses whereby if the maturity of the Notes is accelerated,
maturity of the Senior Credit Facility can also be accelerated. |
|
(2) |
|
The above contractual obligations table does not include the
residual guarantee related to our transaction with Ship Finance
Limited. If Horizon Lines does not elect to purchase the vessels
at the end of the initial twelve year period and the vessel
owners sell the vessels for less than a specified amount,
Horizon Lines is responsible for paying the amount of such
shortfall which will not exceed $3.8 million per vessel.
Such residual guarantee has been recorded at its fair value of
approximately $0.3 million as a liability. |
|
(3) |
|
Included in contractual obligations are scheduled interest
payments. Interest payments on the term loan portion of the
senior credit facility are fixed and based on the interest rate
swap (as defined below). Interest payments on the revolver
portion of the senior credit facility are variable and are based
as of December 26, 2010 upon the London Inter-Bank Offered
Rate (LIBOR) plus 3.25%. The three-month LIBOR /swap curve has
been utilized to estimate interest payments on the senior credit
facility. Interest on the 4.25% convertible senior notes is
fixed and is paid
semi-annually
on February 15 and August 15 of each year, until maturity on
August 15, 2012. |
|
(4) |
|
Other commitments includes the purchase commitment related to
the three new cranes and restructuring liabilities. |
We are not a party to any off-balance sheet arrangements that
have, or are reasonably likely to have, a current or future
effect on our financial condition, revenues or expenses, results
of operations, liquidity, capital expenditures or capital
resources that is material to investors.
65
Long-Term
Debt
Senior Credit
Facility
On August 8, 2007, we entered into a credit agreement (the
Senior Credit Facility) secured by substantially all
our owned assets. On June 11, 2009, the Senior Credit
Facility was amended resulting in a reduction in the size of the
revolving credit facility from $250.0 million to
$225.0 million. The Senior Credit Facility was further
amended on March 9, 2011. The terms of the Senior Credit
Facility also provide for a $5.0 million swingline
subfacility and a $20.0 million letter of credit
subfacility.
The June 2009 amendment to the Senior Credit Facility was
intended to provide us the flexibility that we need to effect
the settlement of the Puerto Rico class action litigation and to
incur other antitrust related litigation expenses. The amendment
revised the definition of Consolidated EBITDA by allowing for
certain charges, including (i) the Puerto Rico settlement
and (ii) litigation expenses related to antitrust
litigation matters in an amount not to exceed $25 million
in the aggregate and $15 million over a
12-month
period, to be added back to the calculation of Consolidated
EBITDA. In addition, the Senior Credit Facility was amended to
(i) increase the spread over LIBOR and Prime based rates by
150 bps, (ii) increase the range of fees on the unused
portion of the commitment, (iii) eliminate the
$150 million incremental facility, (iv) modify the
definition of Consolidated EBITDA to eliminate the term
non-recurring charges, and (v) incorporate
other structural enhancements, including a step-down in the
secured leverage ratio and further limitations on the ability to
make certain restricted payments. As a result of the amendment
to the Senior Credit Facility, we paid $3.5 million in
financing costs and recorded a loss on modification of debt of
$0.1 million.
The March 2011 amendment waives default conditions related to
the recently announced settlement agreement with the DOJ. In
addition, the Senior Credit Facility was amended to
(i) increase the senior secured leverage ratio from 2.75x
to 3.50x for the fiscal quarters ending March 27, 2011 and
June 26, 2011, and from 2.75x to 3.00x for the fiscal
quarter ending September 25, 2011 (remaining at 2.75x for
all fiscal quarters thereafter), (ii) decrease the interest
coverage ratio minimum from 3.50x to 2.50x for the fiscal
quarters ending March 27, 2011 and June 26, 2011, from
3.50x to 2.75x for the fiscal quarter ending September 25,
2011, and from 3.50x to 3.00x for the fiscal quarter ending
December 25, 2011 (remaining at 3.50x for all fiscal
quarters thereafter), (iii) increase the spread over LIBOR
and Prime rates by 250 bps, and (iv) restrict cash
dividends from being paid on any class of capital stock. The
amendment revises the definition of Consolidated EBITDA by
allowing for certain charges, including (i) transaction
costs incurred in connection with obtaining the credit agreement
amendment, the convertible bondholder waiver consent, and any
other proposed refinancing costs that are not counted as
interest expense or capitalized as deferred financing fees in an
amount not to exceed $5.0 million and (ii) litigation
expenses related to antitrust litigation matters in an amount
not to exceed $28.0 million in the aggregate, to be added
back to the calculation of Consolidated EBITDA. As a result of
the amendment, we paid $1.3 million in financing costs.
We made quarterly principal payments on the term loan of
approximately $1.6 million from December 31, 2007
through September 30, 2009. Effective December 31,
2009, quarterly payments increased to $4.7 million through
September 30, 2011, at which point quarterly payments will
increase to $18.8 million until final maturity on
August 8, 2012. The interest rate payable under the Senior
Credit Facility varies depending on the types of advances or
loans we select. Borrowings under the Senior Credit Facility
bear interest primarily at LIBOR-based rates plus a spread which
ranges from 2.75% to 3.5% (LIBOR plus 3.25% as of
December 26, 2010) depending on our ratio of total
secured debt to EBITDA (as defined in the Senior Credit
Facility). We also have the option to borrow at Prime plus a
spread which ranges from 1.75% to 2.5% (Prime plus 2.25% as of
December 26, 2010). The weighted average interest rate at
December 26, 2010 was approximately 4.6%, which includes
the impact of the interest rate swap (as defined below). We also
pay a variable commitment fee on the unused portion of the
commitment, ranging from 0.375% to 0.50% (0.50% as of
December 26, 2010).
66
The Senior Credit Facility contains customary affirmative and
negative covenants and warranties, including two financial
covenants with respect to our leverage and interest coverage
ratio. The March 2011 amendment prohibits the payment of
dividends on our common stock in addition to other restrictions,
including restrictions on debt issuances, acquisitions,
investments, liens, restricted payments, asset sales, sale
leasebacks, and amendment of the outstanding
4.25% Convertible Senior Notes due 2012. It also contains
customary events of default, subject to grace periods. We were
in compliance with all such covenants as of December 26,
2010.
We have agreed that in the event our cash balance exceeds
$17.5 million, we will not request borrowing under the
Senior Credit Facility and, if such cash balance is in excess of
that amount for more than three consecutive business days, to
reduce borrowing under the Senior Credit Facility by the amount
of the excess.
Derivative
Instruments
On March 31, 2008, we entered into an Interest Rate Swap
Agreement (the swap) with Wachovia Bank, National
Association, a current subsidiary of Wells Fargo &
Co., (Wachovia) in the notional amount of
$121.9 million. The swap expires on August 8, 2012.
Under the swap, the Company and Wachovia have agreed to exchange
interest payments on the notional amount on the last business
day of each calendar quarter. We have agreed to pay a 3.02%
fixed interest rate, and Wachovia has agreed to pay a floating
interest rate equal to the three-month LIBOR rate. The critical
terms of the swap agreement and the term loan are the same,
including the notional amounts, interest rate reset dates,
maturity dates and underlying market indices. The purpose of
entering into this swap is to protect us against the risk of
rising interest rates by effectively fixing the base interest
rate payable related to our term loan.
The swap has been designated as a cash flow hedge of the
variability of the cash flows due to changes in LIBOR and has
been deemed to be highly effective. Accordingly, we record the
fair value of the swap as an asset or liability on our
consolidated balance sheet, and any unrealized gain or loss is
included in accumulated other comprehensive (loss) income. As of
December 26, 2010, we recorded a liability of
$3.2 million, of which $0.6 million is included in
other accrued liabilities and $2.6 million is included in
other long-term liabilities, in the accompanying consolidated
balance sheet. We also recorded $1.1 million,
$0.2 million and $3.9 million in other comprehensive
income (loss) for the years ended December 26, 2010,
December 20, 2009 and December 21, 2008, respectively.
No hedge ineffectiveness was recorded during the years ended
December 26, 2010, December 20, 2009 and
December 21, 2008. If the hedge was deemed ineffective, or
extinguished by either counterparty, any accumulated gains or
losses remaining in other comprehensive income would be fully
recorded in interest expense during the period.
4.25% Convertible
Senior Notes
On August 8, 2007, we issued $330.0 million aggregate
principal amount of 4.25% Convertible Senior Notes due 2012
(the Notes). The Notes are general unsecured
obligations of the Company and rank equally in right of payment
with all of our other existing and future obligations that are
unsecured and unsubordinated. The Notes bear interest at the
rate of 4.25% per annum, which is payable in cash semi-annually
on February 15 and August 15 of each year. The Notes mature on
August 15, 2012, unless earlier converted, redeemed or
repurchased in accordance with their terms prior to
August 15, 2012. Holders of the Notes may require us to
repurchase the Notes for cash at any time before August 15,
2012 if certain fundamental changes occur. We recorded the
liability component at its fair value of $279.8 million and
recorded the offsetting $50.2 million as a component of
equity. The original issue discount is being amortized through
interest expense through the maturity date of the Notes.
Each $1,000 of principal of the Notes will initially be
convertible into 26.9339 shares of our common stock, which
is the equivalent of $37.13 per share, subject to adjustment
upon the
67
occurrence of specified events set forth under the terms of the
Notes. Upon conversion, we would pay the holder the cash value
of the applicable number of shares of our common stock, up to
the principal amount of the note. Amounts in excess of the
principal amount, if any, may be paid in cash or in stock, at
our option. Holders may convert their Notes into our common
stock as follows:
|
|
|
|
|
Prior to May 15, 2012, if during any calendar quarter, and
only during such calendar quarter, if the last reported sale
price of our common stock for at least 20 trading days in a
period of 30 consecutive trading days ending on the last trading
day of the preceding calendar quarter exceeds 120% of the
applicable conversion price in effect on the last trading day of
the immediately preceding calendar quarter;
|
|
|
|
During any five business day period prior to May 15, 2012,
immediately after any five consecutive trading day period (the
measurement period) in which the trading price per
$1,000 principal amount of notes for each day of such
measurement period was less than 98% of the product of the last
reported sale price of our common stock on such date and the
conversion rate on such date;
|
|
|
|
If, at any time, a change in control occurs or if we are a party
to a consolidation, merger, binding share exchange or transfer
or lease of all or substantially all of its assets, pursuant to
which the Companys common stock would be converted into
cash, securities or other assets; or
|
|
|
|
At any time after May 15, 2012 through the fourth scheduled
trading day immediately preceding August 15, 2012.
|
Holders who convert their Notes in connection with a change in
control may be entitled to a make-whole premium in the form of
an increase in the conversion rate. In addition, upon a change
in control, liquidation, dissolution or de-listing, the holders
of the Notes may require us to repurchase for cash all or any
portion of their Notes for 100% of the principal amount plus
accrued and unpaid interest. As of December 26, 2010, none
of the conditions allowing holders of the Notes to convert or
requiring us to repurchase the Notes had been met. We may not
redeem the Notes prior to maturity.
Concurrent with the issuance of the Notes, we entered into note
hedge transactions with certain financial institutions whereby
if we are required to issue shares of our common stock upon
conversion of the Notes, we have the option to receive up to
8.9 million shares of our common stock when the price of
our common stock is between $37.13 and $51.41 per share upon
conversion, and we sold warrants to the same financial
institutions whereby the financial institutions have the option
to receive up to 17.8 million shares of our common stock
when the price of our common stock exceeds $51.41 per share upon
conversion. The separate note hedge and warrant transactions
were structured to reduce the potential future share dilution
associated with the conversion of Notes. The cost of the note
hedge transactions to the Company was approximately
$52.5 million which has been accounted for as an equity
transaction. We recorded a $19.1 million income tax benefit
related to the cost of the hedge transaction that was
subsequently fully reserved as part of recording a full
valuation allowance against our deferred tax assets. We received
proceeds of $11.9 million related to the sale of the
warrants, which has also been classified as equity.
The Notes and the warrants sold in connection with the hedge
transactions will have no impact on diluted earnings per share
until the price of the Companys common stock exceeds the
conversion price (initially $37.13 per share) because the
principal amount of the Notes will be settled in cash upon
conversion. Prior to conversion of the Notes or exercise of the
warrants, we will include the effect of the additional shares
that may be issued if our common stock price exceeds the
conversion price, using the treasury stock method. The call
options purchased as part of the note hedge transactions are
anti-dilutive and therefore will have no impact on earnings per
share.
68
Goodwill
We review our goodwill, intangible assets and long-lived assets
for impairment whenever events or changes in circumstances
indicate that the carrying amounts of these assets may not be
recoverable, and also review goodwill annually. As of
December 26, 2010, the carrying value of goodwill was
$314.1 million. Earnings estimated to be generated are
expected to support the carrying value of goodwill.
Performance
Metrics
In addition to EBITDA and Adjusted EBITDA, we use various other
non-GAAP measures such as adjusted net income, and adjusted net
income per share. We believe that in addition to GAAP based
financial information, the non-GAAP amounts presented below are
meaningful disclosures for the following reasons: (i) each
are components of the measure used by our board of directors and
management team to evaluate our operating performance,
(ii) each are components of the measure used by our
management team to make
day-to-day
operating decisions, (iii) each are components of the
measures used by our management to facilitate internal
comparisons to competitors results and the marine
container shipping and logistics industry in general,
(iv) results excluding certain costs and expenses provide
useful information for the understanding of the ongoing
operations with the impact of significant special items, and
(v) the payment of discretionary bonuses to certain members
of our management is contingent upon, among other things, the
satisfaction by Horizon Lines of certain targets, which contain
the non-GAAP measures as components. We acknowledge that there
are limitations when using non-GAAP measures. The measures below
are not recognized terms under GAAP and do not purport to be an
alternative to net income as a measure of operating performance
or to cash flows from operating activities as a measure of
liquidity. Similar to the amounts presented for EBITDA and
Adjusted EBITDA, because all companies do not use identical
calculations, the amounts below may not be comparable to other
similarly titled measures of other companies.
The tables below present a reconciliation of net loss to
adjusted net (loss) income and net loss per share to adjusted
net (loss) income per share (in thousands, except per share
amounts):
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Fiscal Years Ended
|
|
|
|
December 26,
|
|
|
December 20,
|
|
|
December 21,
|
|
|
|
2010
|
|
|
2009
|
|
|
2008
|
|
|
Net loss
|
|
$
|
(57,969
|
)
|
|
$
|
(31,272
|
)
|
|
$
|
(2,593
|
)
|
Net loss from discontinued operations
|
|
|
(11,670
|
)
|
|
|
(4,865
|
)
|
|
|
(12,946
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net (loss) income from continuing operations
|
|
|
(46,299
|
)
|
|
|
(26,407
|
)
|
|
|
10,353
|
|
Adjustments:
|
|
|
|
|
|
|
|
|
|
|
|
|
Legal settlements and contingencies
|
|
|
32,270
|
|
|
|
20,000
|
|
|
|
|
|
Anti-trust legal expenses
|
|
|
5,243
|
|
|
|
12,192
|
|
|
|
10,711
|
|
Impairment charge
|
|
|
2,655
|
|
|
|
1,867
|
|
|
|
6,030
|
|
Restructuring charge
|
|
|
2,057
|
|
|
|
787
|
|
|
|
3,126
|
|
Union severance
|
|
|
468
|
|
|
|
306
|
|
|
|
765
|
|
Loss on modification of debt
|
|
|
|
|
|
|
50
|
|
|
|
|
|
Tax valuation allowance
|
|
|
|
|
|
|
10,561
|
|
|
|
|
|
Tax impact of adjustments
|
|
|
(389
|
)
|
|
|
(232
|
)
|
|
|
(3,338
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total adjustments
|
|
|
42,304
|
|
|
|
45,531
|
|
|
|
17,294
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Adjusted net (loss) income
|
|
$
|
(3,995
|
)
|
|
$
|
19,124
|
|
|
$
|
27,647
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
69
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Fiscal Years Ended
|
|
|
|
December 26,
|
|
|
December 20,
|
|
|
December 21,
|
|
|
|
2010
|
|
|
2009
|
|
|
2008
|
|
|
Net loss per share
|
|
$
|
(1.88
|
)
|
|
$
|
(1.03
|
)
|
|
$
|
(0.09
|
)
|
Net loss per share from discontinued operations
|
|
|
(0.38
|
)
|
|
|
(0.16
|
)
|
|
|
(0.43
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net (loss) income per share from continuing operations
|
|
|
(1.50
|
)
|
|
|
(0.87
|
)
|
|
|
0.34
|
|
Adjustments:
|
|
|
|
|
|
|
|
|
|
|
|
|
Legal settlements and contingencies
|
|
|
1.04
|
|
|
|
0.66
|
|
|
|
|
|
Anti-trust legal expenses
|
|
|
0.17
|
|
|
|
0.40
|
|
|
|
0.35
|
|
Impairment charge
|
|
|
0.09
|
|
|
|
0.06
|
|
|
|
0.20
|
|
Restructuring charge
|
|
|
0.07
|
|
|
|
0.03
|
|
|
|
0.10
|
|
Union severance
|
|
|
0.01
|
|
|
|
0.01
|
|
|
|
0.03
|
|
Tax valuation allowance
|
|
|
|
|
|
|
0.35
|
|
|
|
|
|
Tax impact of adjustments
|
|
|
(0.01
|
)
|
|
|
(0.02
|
)
|
|
|
(0.11
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total adjustments:
|
|
|
1.37
|
|
|
|
1.49
|
|
|
|
0.57
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Adjusted net (loss) income per share
|
|
$
|
(0.13
|
)
|
|
$
|
0.62
|
|
|
$
|
0.91
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Outlook
We expect 2011 to be a challenging year due to the uncertain
rate environment impacting our new China service and the
corresponding loss of steady revenue under our previous
trans-Pacific agreements with Maersk, continued rate pressures
in our Puerto Rico market, and volatile fuel prices. The overall
rate environment in China has softened since we discussed our
initial 2011 outlook in a conference call with investors on
March 3, 2011, and we are uncertain of implications for the
May contracting season as well as for the peak season in the
summer. Fuel prices have risen significantly in recent months
and remain extremely volatile due to the unrest in the Middle
East and North Africa. Our ability to implement surcharge
adjustments will have an impact on our earnings. In addition, it
is unknown at this time the impact the tragic events in Japan
will have on our outlook for our Alaska, Hawaii, and Guam
businesses.
These challenges will be partially mitigated by anticipated
growth in our Guam and Alaska markets and our cost savings
initiatives. Our cost savings initiatives include savings from
our recent reduction in non-union workforce, labor savings from
our vessel union partners, and rate and efficiency savings from
our trucking partners, among other numerous initiatives.
We expect the seasonal weakness typical in the first quarter to
be exaggerated by weakening trans-Pacific rates associated with
our new China service and the corresponding loss of steady month
to month revenue from our previous trans-Pacific agreement with
Maersk as well as the steep rise in fuel prices that have
persisted through the first quarter. We have undertaken efforts
to reduce expenses and preserve liquidity, including,
significantly reducing operating costs, seeking to restructure
the terms of our existing indebtedness and pursuing the sale of
selected assets.
We do not expect to be in compliance with our debt agreements in
2011. If we breach our covenants, we will work with our lenders
to seek an amendment or waiver of such default. Additional
financing resources will be required to refinance existing
indebtedness that could become due within the next twelve
months. We are pursuing the refinancing of our existing debt, as
well as exploring other options, and are targeting completion of
the process in the second or third quarter of 2011.
70
|
|
Item 7A.
|
Quantitative
and Qualitative Disclosures about Market Risk
|
Our primary interest rate exposure relates to the Senior Credit
Facility. As of December 26, 2010, we had outstanding a
$93.8 million term loan and $100.0 million under the
revolving credit facility, which bear interest at variable rates.
On March 31, 2008, the Company entered into an Interest
Rate Swap Agreement (the swap) with Wachovia Bank,
National Association, a current subsidiary of Wells
Fargo & Co., (Wachovia) in the notional
amount of $121.9 million. The swap expires on
August 8, 2012. Under the swap, the Company and Wachovia
have agreed to exchange interest payments on the notional amount
on the last business day of each calendar quarter. The Company
has agreed to pay a 3.02% fixed interest rate, and Wachovia has
agreed to pay a floating interest rate equal to the three-month
LIBOR rate. The critical terms of the swap agreement and the
term loan are the same, including the notional amounts, interest
rate reset dates, maturity dates and underlying market indices.
The purpose of entering into this swap is to protect the Company
against the risk of rising interest rates by effectively fixing
the base interest rate payable related to its term loan.
Interest rate differentials paid or received under the swap are
recognized as adjustments to interest expense. The Company does
not hold or issue interest rate swap agreements for trading
purposes. In the event that the counter-party fails to meet the
terms of the interest rate swap agreement, the Companys
exposure is limited to the interest rate differential.
Each quarter point change in interest rates or spread would
result in a $0.3 million change in annual interest expense
on the revolving credit facility.
We maintain a policy for managing risk related to exposure to
variability in interest rates, fuel prices and other relevant
market rates and prices which includes entering into derivative
instruments in order to mitigate our risks.
Our exposure to market risk for changes in interest rates is
limited to our senior credit facility and one of our operating
leases. The interest rate for our senior credit facility is
currently indexed to LIBOR of one, two, three, or six months as
selected by us, or the Alternate Base Rate as defined in the
senior credit facility. One of our operating leases is currently
indexed to LIBOR of one month.
In addition, at times we utilize derivative instruments tied to
various indexes to hedge a portion of our quarterly exposure to
bunker fuel price increases. These instruments consist of fixed
price swap agreements. We do not use derivative instruments for
trading purposes. Credit risk related to the derivative
financial instruments is considered minimal and is managed by
requiring high credit standards for its counterparties. We
currently do not have any bunker fuel price hedges in place.
Changes in fair value of derivative financial instruments are
recorded as adjustments to the assets or liabilities being
hedged in the statement of operations or in accumulated other
comprehensive income (loss), depending on whether the derivative
is designated and qualifies for hedge accounting, the type of
hedge transaction represented and the effectiveness of the hedge.
The table below provides information about our funded debt
obligations indexed to LIBOR. The principal cash flows are in
thousands.
71
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Fair Value
|
|
|
|
|
|
|
|
|
|
|
|
|
December 26,
|
|
|
|
|
2011
|
|
2012
|
|
Thereafter
|
|
Total
|
|
2010(1)
|
|
|
|
Liabilities
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Long-term Debt:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Fixed rate
|
|
$
|
|
|
|
$
|
330,000
|
|
|
$
|
|
|
|
$
|
330,000
|
|
|
$
|
304,293
|
|
|
|
|
|
Average interest rate
|
|
|
4.3
|
%
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Variable rate
|
|
$
|
18,750
|
|
|
$
|
175,000
|
|
|
$
|
|
|
|
$
|
193,750
|
|
|
$
|
193,750
|
|
|
|
|
|
Average interest rate
|
|
|
4.6
|
%
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Interest Rate Derivatives
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Interest Rate Swap:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Variable to Fixed
|
|
$
|
73,828
|
|
|
$
|
18,750
|
|
|
$
|
|
|
|
$
|
93,750
|
|
|
$
|
93,750
|
|
|
|
|
|
Average pay rate
|
|
|
3.2
|
%
|
|
|
3.2
|
%
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Average receive rate
|
|
|
0.5
|
%
|
|
|
0.9
|
%
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(1) |
|
We receive the arithmetic average of the reference price
calculated using the unweighted method of averaging. |
|
|
Item 8.
|
Financial
Statements and Supplementary Data
|
See index in Item 15 of this annual report on
Form 10-K.
Quarterly information (unaudited) is presented in a Note to the
consolidated financial statements.
|
|
Item 9.
|
Changes
in and Disagreements with Accountants on Accounting and
Financial Disclosure
|
None.
72
|
|
Item 9A.
|
Controls
and Procedures
|
Disclosure
Controls and Procedures
We maintain disclosure controls and procedures designed to
ensure information required to be disclosed in Company reports
filed under the Securities Exchange Act of 1934, as amended
(the Exchange Act), is recorded, processed,
summarized, and reported within the time periods specified in
the Securities and Exchange Commissions rules and forms.
Disclosure controls and procedures are designed to provide
reasonable assurance that information required to be disclosed
in Company reports filed under the Exchange Act is accumulated
and communicated to management, including our Chief Executive
Officer and Chief Financial Officer, as appropriate, to allow
timely decisions regarding required disclosure.
Our management, with the participation of our Chief Executive
Officer and Chief Financial Officer, has evaluated the
effectiveness of our disclosure controls and procedures pursuant
to
Rule 13a-15(b)
of the Exchange Act as of December 26, 2010. Based on that
evaluation, our Chief Executive Officer and Chief Financial
Officer have concluded that our disclosure controls and
procedures are effective as of December 26, 2010.
Managements
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)
under the Securities Exchange Act of 1934. Pursuant to the rules
and regulations of the Securities and Exchange Commission,
internal control over financial reporting is a process designed
by, or under the supervision of, our principal executive and
principal financial officers, and effected by our board of
directors, management and other personnel, to provide reasonable
assurance regarding the reliability of financial reporting and
the preparation of financial statements for external purposes in
accordance with accounting principles generally accepted in the
United States. Due to inherent limitations, internal control
over financial reporting may not prevent or detect
misstatements. Further, because of changes in conditions,
effectiveness of internal control over financial reporting may
vary over time.
Our management, with the participation of our Chief Executive
Officer and Chief Financial Officer, has evaluated the
effectiveness of our internal control over financial reporting
as of December 26, 2010 based on the control criteria
established in a report entitled Internal Control
Integrated Framework, issued by the Committee of
Sponsoring Organizations of the Treadway Commission (COSO).
Based on such evaluation management has concluded that our
internal control over financial reporting is effective as of
December 26, 2010.
Ernst and Young LLP, our independent registered public
accounting firm, has issued an attestation report on the
effectiveness of the Companys internal controls over
financial reporting, which is on
page F-2
of this Annual Report on
Form 10-K.
Changes in
Internal Control over Financial Reporting
There were no changes in our internal control over financial
reporting during our fiscal quarter ending December 26,
2010, that have materially affected, or are reasonably likely to
materially affect, our internal control over financial reporting.
|
|
Item 9B.
|
Other
Information
|
None.
73
Part III
|
|
Item 10.
|
Directors
and Executive Officers of the Registrant
|
The information required by this item as to the Companys
executive officers, directors, director nominees, audit
committee financial expert, audit committee, and procedures for
stockholders to recommend director nominees will be included in
the Companys proxy statement to be filed for the Annual
Meeting of Stockholders to be held on June 2, 2011, and is
incorporated by reference herein. The information required by
this item as to compliance by the Companys directors,
executive officers and certain beneficial owners of the
Companys Common Stock with Section 16(a) of the
Securities Exchange Act of 1934 also will be included in said
proxy statement and also is incorporated herein by reference.
The Company has adopted a Code of Business Conduct and Ethics
that governs the actions of all Company employees, including
officers and directors. The Code of Business Conduct and Ethics
is posted within the Investor Relations section of the
Companys internet website at www.horizonlines.com. The
Company will provide a copy of the Code of Business Conduct and
Ethics to any stockholder upon request. Any amendments to
and/or any
waiver from a provision of any of the Code of Business Conduct
and Ethics granted to any director, executive officer or any
senior financial officer, must be approved by the Board of
Directors and will be disclosed on the Companys internet
website as soon as reasonably practical following the amendment
or waiver. The information contained on or connected to the
Companys internet website is not incorporated by reference
into this
Form 10-K
and should not be considered part of this or any other report
that the Company files with or furnishes to the Securities and
Exchange Commission.
|
|
Item 11.
|
Executive
Compensation
|
The information required by this item will be included in the
Companys proxy statement to be filed for the Annual
Meeting of Stockholders to be held on June 2, 2011, and is
incorporated herein by reference.
|
|
Item 12.
|
Security
Ownership of Certain Beneficial Owners and Management and
Related Stockholder Matters
|
The information required by this item will be included in the
Companys proxy statement to be filed for the Annual
Meeting of Stockholders to be held on June 2, 2011, and is
incorporated herein by reference.
|
|
Item 13.
|
Certain
Relationships and Related Transactions
|
The information required by this item will be included in the
Companys proxy statement to be filed for the Annual
Meeting of Stockholders to be held on June 2, 2011, and is
incorporated herein by reference.
|
|
Item 14.
|
Principal
Accountant Fees and Services
|
The information required by this item will be included in the
Companys proxy statement to be filed for the Annual
Meeting of Stockholders to be held on June 2, 2011, and is
incorporated herein by reference.
74
Part IV
|
|
Item 15.
|
Exhibits
and Financial Statement Schedules
|
(a)(1) Financial Statements:
Horizon Lines,
Inc.
Index to Consolidated Financial Statements
|
|
|
|
|
|
|
Page
|
|
|
|
|
F-2
|
|
Consolidated Financial Statements for the fiscal year ended
December 26, 2010:
|
|
|
|
|
|
|
|
F-3
|
|
|
|
|
F-4
|
|
|
|
|
F-5
|
|
|
|
|
F-6
|
|
|
|
|
F-7
|
|
|
|
|
F-42
|
|
(a)(2) Exhibits:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Incorporated by Reference
|
|
|
Exhibit
|
|
|
|
|
|
|
|
Date of First
|
|
Exhibit
|
|
Filed
|
Number
|
|
Description
|
|
Form
|
|
File No.
|
|
Filing
|
|
Number
|
|
Herewith
|
|
|
3
|
.1
|
|
Amended and Restated Certificate of Incorporation of the
Registrant.
|
|
S-1
|
|
333-123073
|
|
9/22/05
|
|
3.1
|
|
|
|
3
|
.1.1
|
|
Certificate of Amendment of Amended and Restated Certificate of
Incorporation
|
|
8-K
|
|
001-32627
|
|
6/5/07
|
|
3.1
|
|
|
|
3
|
.1.2
|
|
Certificate of Amendment of Amended and Restated Certificate of
Incorporation
|
|
10-K
|
|
001-32627
|
|
2/5/09
|
|
3.1.2
|
|
|
|
3
|
.2
|
|
Amended and Restated Bylaws of the Registrant.
|
|
8-K
|
|
001-32627
|
|
2/4/09
|
|
3.2
|
|
|
|
3
|
.3
|
|
Certificate of Amendment of Amended and Restated Certificates of
Incorporation of the Registrant.
|
|
8-K
|
|
001-32627
|
|
6/5/07
|
|
3.1
|
|
|
|
4
|
.1
|
|
Specimen of Common Stock Certificate.
|
|
S-1
|
|
333-123073
|
|
9/19/05
|
|
4.8
|
|
|
|
4
|
.2
|
|
Indenture, dated August 8, 2007, by and among Horizon Lines,
Inc. and The Bank of New York Trust Company, N.A., as Trustee.
|
|
8-K
|
|
001-32627
|
|
8/13/07
|
|
4.3
|
|
|
|
4
|
.3
|
|
Form of Note (included in Exhibit 4.7).
|
|
8-K
|
|
001-32627
|
|
8/13/07
|
|
4.4
|
|
|
75
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Incorporated by Reference
|
|
|
Exhibit
|
|
|
|
|
|
|
|
Date of First
|
|
Exhibit
|
|
Filed
|
Number
|
|
Description
|
|
Form
|
|
File No.
|
|
Filing
|
|
Number
|
|
Herewith
|
|
|
10
|
.1
|
|
Preferential Usage Agreement dated December 1, 1985, between the
Municipality of Anchorage, Alaska and Horizon Lines of Alaska,
LLC (formerly known as CSX Lines of Alaska, LLC, as successor in
interest to SL Service, Inc. (formerly known as Sea-Land
Service, Inc.), pursuant to a consent to general assignment and
assumption, dated September 5, 2002), as amended by the
Amendment to Preferential Usage Agreement dated January 31,
1991, Second Amendment to December 1, 1985 Preferential Usage
Agreement dated June 20, 1996, and Third Amendment to December
1, 1985 Preferential Usage Agreement dated January 7, 2003.
|
|
S-1
|
|
333-123073
|
|
3/2/05
|
|
10.10
|
|
|
|
10
|
.2
|
|
Amended and Restated Guarantee and Indemnity Agreement dated as
of February 27, 2003, by and among HLH, LLC, Horizon Lines, LLC,
CSX Corporation, CSX Alaska Vessel Company, LLC and SL Service,
Inc., as supplemented by the joinder agreements, dated as of
July 7, 2004, of Horizon Lines Holding Corp., Horizon Lines of
Puerto Rico, Inc., Falconhurst, LLC, Horizon Lines Ventures,
LLC, Horizon Lines of Alaska, LLC, Horizon Lines of Guam, LLC,
Horizon Lines Vessels, LLC, Horizon Services Group, LLC, Sea
Readiness, LLC, Sea-Logix, LLC,
S-L
Distribution Services, LLC and SL Payroll Services, LLC.
|
|
S-1
|
|
333-123073
|
|
3/2/05
|
|
10.26
|
|
|
|
*10
|
.3
|
|
Amended and Restated Put/Call Agreement, dated as of September
20, 2005, by and among Horizon Lines, Inc. and other parties
thereto.
|
|
8-K
|
|
001-32627
|
|
10/24/05
|
|
99.4
|
|
|
|
*10
|
.4
|
|
Form of Restricted Stock Award Agreement.
|
|
8-K
|
|
001-32627
|
|
4/30/08
|
|
10.1
|
|
|
|
10
|
.5
|
|
International Intermodal Agreement 5124-5024, dated as of March
1, 2002, between Horizon Lines, LLC, Horizon Lines of Puerto
Rico, Inc., Horizon Lines of Alaska, LLC and CSX Intermodal, Inc.
|
|
S-4
|
|
333-123681
|
|
6/23/05
|
|
10.14
|
|
|
|
10
|
.6
|
|
Sub-Bareboat Charter Party Respecting 3 Vessels, dated as of
February 27, 2003, in relation to U.S.-flag vessels Horizon
Anchorage, Horizon Tacoma and Horizon Kodiak, between CSX Alaska
Vessel Company, LLC, as charterer, and Horizon Lines, LLC, as
sub-charterer.
|
|
S-4
|
|
333-123681
|
|
3/30/05
|
|
10.15
|
|
|
|
10
|
.7
|
|
TP1 Space Charter and Transportation Service Contract, dated May
9, 2004, between A.P. Møller-Maersk A/S and Horizon Lines,
LLC.
|
|
S-4
|
|
333-123681
|
|
6/23/05
|
|
10.16
|
|
|
76
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Incorporated by Reference
|
|
|
Exhibit
|
|
|
|
|
|
|
|
Date of First
|
|
Exhibit
|
|
Filed
|
Number
|
|
Description
|
|
Form
|
|
File No.
|
|
Filing
|
|
Number
|
|
Herewith
|
|
|
10
|
.8.1
|
|
Amendment No. 1 to TP1 Space Charter and Transportation Service
Contract, dated November 30, 2006 between A.P.
Møller-Maersk A/S and Horizon Lines, LLC.
|
|
10-K
|
|
001-32627
|
|
3/2/07
|
|
10.12.1
|
|
|
|
10
|
.8.2
|
|
Amendment No. 2 to TP1 Space Charter and Transportation Service
Contract, dated July 2, 2007 between A.P. Møller-Maersk A/S
and Horizon Lines, LLC.
|
|
10-Q
|
|
001-32627
|
|
7/27/07
|
|
10.12.2
|
|
|
|
10
|
.9
|
|
Container Interchange Agreement, dated April 1, 2002, between
A.P. Møller-Maersk A/S, CSX Lines, LLC, CSX Lines of Puerto
Rico, Inc., CSX Lines of Alaska, LLC and Horizon Lines of
Alaska, LLC.
|
|
S-4
|
|
333-123681
|
|
3/20/05
|
|
10.17
|
|
|
|
10
|
.9.1
|
|
Agreement Regarding the Container Interchange Agreement, dated
November 30, 2006, among A.P. Møller-Maersk A/S, Horizon
Lines, LLC, Horizon Lines of Puerto Rico, Inc. and Horizon Lines
of Alaska, LLC.
|
|
10-K
|
|
001-32627
|
|
3/2/07
|
|
10.13.1
|
|
|
|
10
|
.10
|
|
Stevedoring and Terminal Services Agreement, dated May 9, 2004,
between APM Terminals, North America, Inc., Horizon Lines, LLC
and Horizon Lines of Alaska, LLC.
|
|
S-4
|
|
333-123681
|
|
3/30/05
|
|
10.18
|
|
|
|
10
|
.10.1
|
|
Amendment No. 2 to Stevedoring and Terminal Services Agreement,
dated November 30, 2006, among APM Terminals, North America,
Inc., Horizon Lines, LLC and Horizon Lines of Alaska, LLC.
|
|
10-K
|
|
001-32627
|
|
3/2/07
|
|
10.14.1
|
|
|
|
10
|
.10.2
|
|
Amendment No. 3 to Stevedoring and Terminal Services Agreement,
dated June 8, 2010, among APM Terminals, North America, Inc.,
Horizon Lines, LLC and Horizon Lines of Alaska, LLC.
|
|
10-Q
|
|
001-32627
|
|
7/23/10
|
|
10.1
|
|
|
|
10
|
.11.1
|
|
Assignment and Assumption Agreement dated as of September 2,
1999, by and between Sea-Land Service, Inc. and
Sea-Land
Domestic Shipping, LLC.
|
|
S-4
|
|
333-123681
|
|
3/30/05
|
|
10.21
|
|
|
|
10
|
.12
|
|
Capital Construction Fund Agreement, dated March 29, 2004,
between Horizon Lines, LLC and the United States of America,
represented by the Secretary of Transportation, acting by and
through the Maritime Administrator.
|
|
S-1
|
|
333-123073
|
|
3/2/05
|
|
10.36
|
|
|
|
10
|
.13
|
|
Harbor Lease dated January 12, 1996, between Horizon Lines, LLC
(formerly known as CSX Lines, LLC, as successor in interest to
SL Services, Inc. (formerly known as Sea-Land Service, Inc.),
pursuant to Consent to Two Assignments of Harbor Lease No.
H-92-22,
dated February 14, 2003) and the State of Hawaii, Department of
Transportation, Harbors Division.
|
|
S-1
|
|
333-123073
|
|
3/2/05
|
|
10.37
|
|
|
77
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Incorporated by Reference
|
|
|
Exhibit
|
|
|
|
|
|
|
|
Date of First
|
|
Exhibit
|
|
Filed
|
Number
|
|
Description
|
|
Form
|
|
File No.
|
|
Filing
|
|
Number
|
|
Herewith
|
|
|
10
|
.14
|
|
Agreement dated May 16, 2002, between Horizon Lines of Puerto
Rico, Inc. (formerly known as CSX Lines of Puerto Rico, Inc.)
and The Puerto Rico Ports Authority.
|
|
S-1
|
|
333-123073
|
|
3/2/05
|
|
10.38
|
|
|
|
10
|
.15
|
|
Agreement dated March 29, 2001, between Horizon Lines of Puerto
Rico, Inc. (formerly known as CSX Lines of Puerto Rico, Inc.)
and The Puerto Rico Ports Authority.
|
|
S-1
|
|
333-123073
|
|
3/2/05
|
|
10.39
|
|
|
|
10
|
.16
|
|
Port of Kodiak Preferential Use Agreement dated April 12, 2002,
between the City of Kodiak, Alaska and Horizon Lines of Alaska,
LLC (formerly known as CSX Lines of Alaska, LLC, as successor in
interest to CSX Lines, LLC, pursuant to Amendment No. 1 to the
Preferential Use Agreement, dated April 12, 2002).
|
|
S-1
|
|
333-123073
|
|
3/2/05
|
|
10.40
|
|
|
|
10
|
.16.1
|
|
Port of Kodiak Preferential Use Agreement dated January 1, 2005,
between the City of Kodiak, Alaska and Horizon Lines of Alaska,
LLC.
|
|
S-1
|
|
333-123073
|
|
7/29/05
|
|
10.40.1
|
|
|
|
10
|
.17
|
|
Terminal Operation Contract dated May 2, 2002, between the City
of Kodiak, Alaska and Horizon Lines of Alaska, LLC (formerly
known as CSX Lines of Alaska, LLC).
|
|
S-1
|
|
333-123073
|
|
3/2/05
|
|
10.41
|
|
|
|
10
|
.17.1
|
|
Terminal Operation Contract dated January 1, 2005, between the
City of Kodiak, Alaska and Horizon Lines of Alaska, LLC.
|
|
S-1
|
|
333-123073
|
|
7/29/05
|
|
10.41.1
|
|
|
|
10
|
.18
|
|
Sublease, Easement and Preferential Use Agreement dated October
2, 1990, between the City of Unalaska and Horizon Lines, LLC
(formerly known as CSX Lines LLC), as successor in interest to
Sea-Land Service, Inc., together with the addendum thereto dated
October 2, 1990, as amended by the Amendment to Sublease,
Easement and Preferential Use Agreement dated May 31, 2000, and
Amendment #1 dated May 1, 2002.
|
|
S-1
|
|
333-123073
|
|
3/2/05
|
|
10.42
|
|
|
|
10
|
.18.1
|
|
Amendment #2 dated February 27, 2003 to Preferential Use
Agreement dated October 2, 1990 between the City of Unalaska and
Horizon Lines of Alaska, LLC (formerly known as CSX Lines of
Alaska, LLC).
|
|
S-1
|
|
333-123073
|
|
7/29/05
|
|
10.42.1
|
|
|
|
*10
|
.19
|
|
Form of Directors and Officers Indemnification
Agreement.
|
|
S-1
|
|
333-123073
|
|
9/19/05
|
|
10.43
|
|
|
|
10
|
.19.1
|
|
Form of Non-management Directors Indemnification Agreement
|
|
8-K
|
|
001-32627
|
|
7/18/08
|
|
10.1
|
|
|
|
*10
|
.20
|
|
Employment Agreement dated as of September 16, 2005, between
Horizon Lines, LLC and John V. Keenan.
|
|
S-1
|
|
333-123073
|
|
9/19/05
|
|
10.44
|
|
|
78
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Incorporated by Reference
|
|
|
Exhibit
|
|
|
|
|
|
|
|
Date of First
|
|
Exhibit
|
|
Filed
|
Number
|
|
Description
|
|
Form
|
|
File No.
|
|
Filing
|
|
Number
|
|
Herewith
|
|
|
*10
|
.21.1
|
|
First Amendment to Employment Agreement dated as of December 20,
2003, between Horizon Lines and John V. Keenan.
|
|
8-K
|
|
001-32627
|
|
12/21/05
|
|
10.44.1
|
|
|
|
*10
|
.22.1
|
|
Amended and Restated Equity Incentive Plan.
|
|
8-K
|
|
001-32627
|
|
12/19/08
|
|
10.1
|
|
|
|
*10
|
.23
|
|
Horizon Lines, Inc., Employee Stock Purchase Plan.
|
|
S-1
|
|
333-123073
|
|
9/19/05
|
|
10.46
|
|
|
|
*10
|
.24
|
|
Stock Option Award Agreement.
|
|
8-K
|
|
001-32627
|
|
4/11/06
|
|
10.1
|
|
|
|
10
|
.25
|
|
Bareboat Charter Agreement dated as of April 7, 2006, by and
among Horizon Lines Eagle and Horizon Lines, LLC.
|
|
S-1
|
|
333-134270
|
|
5/19/06
|
|
10.52
|
|
|
|
10
|
.26
|
|
Bareboat Charter Agreement dated as of April 7, 2006, by and
among Horizon Lines Falcon and Horizon Lines, LLC.
|
|
S-1
|
|
333-134270
|
|
5/19/06
|
|
10.53
|
|
|
|
10
|
.27
|
|
Bareboat Charter Agreement dated as of April 7, 2006, by and
among Horizon Lines Hunter and Horizon Lines, LLC.
|
|
S-1
|
|
333-134270
|
|
5/16/06
|
|
10.54
|
|
|
|
10
|
.28
|
|
Bareboat Charter Agreement dated as of April 7, 2006, by and
among Horizon Lines Tiger and Horizon Lines, LLC.
|
|
S-1
|
|
333-134270
|
|
5/19/06
|
|
10.55
|
|
|
|
10
|
.29
|
|
Bareboat Charter Agreement dated as of April 7, 2006, by and
among Horizon Lines Hawk and Horizon Lines, LLC.
|
|
S-1
|
|
333-134270
|
|
5/19/06
|
|
10.56
|
|
|
|
10
|
.30
|
|
Restricted Stock Agreement dated as of February 1, 2006, among
Horizon Lines, Inc. and John Handy.
|
|
S-1
|
|
333-134270
|
|
5/19/06
|
|
10.59
|
|
|
|
10
|
.31
|
|
Purchase Agreement, dated August 1, 2007, by and among Horizon
Lines, Inc. and Goldman, Sachs & Co., as representatives of
the Initial Purchasers.
|
|
8-K
|
|
001-32627
|
|
8/13/07
|
|
10.1
|
|
|
|
10
|
.32
|
|
Registration Rights Agreement, dated August 8, 2007, by and
among Horizon Lines, Inc. and Goldman, Sachs & Co., as
representatives of the Initial Purchasers.
|
|
8-K
|
|
001-32627
|
|
8/13/07
|
|
10.2
|
|
|
|
10
|
.33
|
|
Confirmation of Convertible Bond Hedge Transaction, dated as of
August 1, 2007, by and among Horizon Lines, Inc. and Goldman,
Sachs & Co.
|
|
8-K
|
|
001-32627
|
|
8/13/07
|
|
10.3
|
|
|
|
10
|
.34
|
|
Confirmation of Convertible Bond Hedge Transaction, dated as of
August 1, 2007, by and among Horizon Lines, Inc. and Bank of
America, N.A.
|
|
8-K
|
|
001-32627
|
|
8/13/07
|
|
10.4
|
|
|
|
10
|
.35
|
|
Confirmation of Convertible Bond Hedge Transaction, dated as of
August 1, 2007, by and among Horizon Lines, Inc. and Wachovia
Capital Markets, LLC, solely as agent of Wachovia Bank, National
Association.
|
|
8-K
|
|
001-32627
|
|
8/13/07
|
|
10.5
|
|
|
|
10
|
.36
|
|
Confirmation of Issuer Warrant Transaction, dated as of August
1, 2007, by and among Horizon Lines, Inc. and Goldman, Sachs
& Co.
|
|
8-K
|
|
001-32627
|
|
8/13/07
|
|
10.6
|
|
|
79
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Incorporated by Reference
|
|
|
Exhibit
|
|
|
|
|
|
|
|
Date of First
|
|
Exhibit
|
|
Filed
|
Number
|
|
Description
|
|
Form
|
|
File No.
|
|
Filing
|
|
Number
|
|
Herewith
|
|
|
10
|
.37
|
|
Confirmation of Issuer Warrant Transaction, dated as of August
1, 2007, by and among Horizon Lines, Inc. and Bank of America,
N.A.
|
|
8-K
|
|
001-32627
|
|
8/13/07
|
|
10.7
|
|
|
|
10
|
.38
|
|
Confirmation of Issuer Warrant Transaction, dated as of August
1, 2007, by and among Horizon Lines, Inc. and Wachovia Capital
Markets, LLC, solely as agent of Wachovia Bank, National
Association.
|
|
8-K
|
|
001-32627
|
|
8/13/07
|
|
10.8
|
|
|
|
10
|
.39
|
|
Amendment to Confirmation of Issuer Warrant Transaction dated as
of August 3, 2007, by and among Horizon Lines, Inc. and Goldman,
Sachs & Co.
|
|
8-K
|
|
001-32627
|
|
8/13/07
|
|
10.9
|
|
|
|
10
|
.40
|
|
Amendment to Confirmation of Issuer Warrant Transaction dated as
of August 3, 2007, by and among Horizon Lines, Inc. and Bank of
America, N.A.
|
|
8-K
|
|
001-32627
|
|
8/13/07
|
|
10.10
|
|
|
|
10
|
.41
|
|
Amendment to Confirmation of Issuer Warrant Transaction dated as
of August 3, 2007, by and among Horizon Lines, Inc. and Wachovia
Capital Markets, LLC, solely as agent of Wachovia Bank, National
Association.
|
|
8-K
|
|
001-32627
|
|
8/13/07
|
|
10.11
|
|
|
|
10
|
.42
|
|
Credit Agreement, dated August 8, 2007, by and among Horizon
Lines, Inc., as Borrower; certain subsidiaries of the Borrower
for time to time parties thereto, as Guarantors; the Lenders
parties thereto; Wachovia Bank, National Association, as
Administrative Agent; Bank of America, N.A., as Syndication
Agent; and Goldman Sachs Credit Partners, L.P., LaSalle Bank,
National Association and JP Morgan Chase Bank, N.A., as Joint
Documentation Agents.
|
|
8-K
|
|
001-32627
|
|
8/13/07
|
|
10.12
|
|
|
|
10
|
.43
|
|
First Amendment to Credit Agreement, dated June 11, 2009
|
|
8-K
|
|
001-32627
|
|
6/12/09
|
|
10.2
|
|
|
|
10
|
.44
|
|
Second Amendment to Credit Agreement, dated March 9, 2011
|
|
8-K
|
|
001-32627
|
|
3/11/11
|
|
10.1
|
|
|
|
10
|
.45
|
|
Settlement Agreement, dated June 11, 2009
|
|
8-K
|
|
001-32627
|
|
6/12/09
|
|
10.1
|
|
|
|
*10
|
.46
|
|
Restricted Stock Agreement between the Registrant and Charles G.
Raymond dated June 28, 2007.
|
|
8-K
|
|
001-32627
|
|
7/3/07
|
|
10.1
|
|
|
|
*10
|
.47
|
|
Form of Performance Grant Agreement for Charles G. Raymond.
|
|
8-K
|
|
001-32627
|
|
5/20/09
|
|
10.1
|
|
|
|
*10
|
.48
|
|
Form of 2010 Performance-Based Restricted Stock Award.
|
|
10-Q
|
|
001-32627
|
|
4/23/10
|
|
10.2
|
|
|
|
*10
|
.49
|
|
Form of 2010 Time-Based Restricted Stock Award.
|
|
10-Q
|
|
001-32627
|
|
4/23/10
|
|
10.3
|
|
|
|
10
|
.50
|
|
Separation Agreement between the Registrant and Charles G.
Raymond, dated February 23, 2011
|
|
|
|
|
|
|
|
|
|
X
|
80
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Incorporated by Reference
|
|
|
Exhibit
|
|
|
|
|
|
|
|
Date of First
|
|
Exhibit
|
|
Filed
|
Number
|
|
Description
|
|
Form
|
|
File No.
|
|
Filing
|
|
Number
|
|
Herewith
|
|
|
*10
|
.51
|
|
Employment Agreement between the Registrant and Stephen H.
Fraser executed March 28, 2011
|
|
|
|
|
|
|
|
|
|
X
|
|
12
|
|
|
Ratio of Earnings to Fixed Charges.
|
|
|
|
|
|
|
|
|
|
X
|
|
14
|
|
|
Code of Ethics.
|
|
10-K
|
|
001-32627
|
|
2/5/09
|
|
|
|
|
|
21
|
|
|
List of Subsidiaries of Horizon Lines, Inc.
|
|
|
|
|
|
|
|
|
|
X
|
|
23
|
.1
|
|
Consent of Independent Registered Public Accounting Firm.
|
|
|
|
|
|
|
|
|
|
X
|
|
31
|
.1
|
|
Certification of Chief Executive Officer pursuant to Rules
13a-14 and 15d-14, as adopted pursuant to Section 302 of
Sarbanes-Oxley Act of 2002.
|
|
|
|
|
|
|
|
|
|
X
|
|
31
|
.2
|
|
Certification of Chief Financial Officer pursuant to Rules
13a-14 and 15d-14, as adopted pursuant to Section 302 of
Sarbanes-Oxley Act of 2002.
|
|
|
|
|
|
|
|
|
|
X
|
|
32
|
.1
|
|
Certification of Chief Executive Officer pursuant to
18 U.S.C. Section 1350, as adopted pursuant to Section 906
of Sarbanes-Oxley Act of 2002.
|
|
|
|
|
|
|
|
|
|
X
|
|
32
|
.2
|
|
Certification of Chief Financial Officer pursuant to
18 U.S.C. Section 1350, as adopted pursuant to Section 906
of Sarbanes-Oxley Act of 2002.
|
|
|
|
|
|
|
|
|
|
X
|
|
|
|
* |
|
Exhibit represents a management contract or compensatory plan. |
|
|
|
Portions of this document were omitted and filed separately
pursuant to a request for confidential treatment in accordance
with Rule 406 of the Securities Act. |
|
|
|
Portions of this document were omitted and filed separately
pursuant to a request for confidential treatment in accordance
with
Rule 24b-2
of the Exchange Act. |
81
SIGNATURES
Pursuant to the requirements of Section 13 or 15(d) of
the Securities Exchange Act of 1934, the Registrants have duly
caused this report to be signed on its behalf by the undersigned
thereunto duly authorized, on the 28th day of March
2011.
HORIZON LINES, INC.
|
|
|
|
By:
|
/s/ Stephen
H. Fraser
|
Stephen H. Fraser
President and Chief Executive
Officer
Pursuant to the requirements of the Securities and Exchange
Act of 1934, this report has been signed below by the following
persons on behalf of the Registrants and in the capacities and
on the 28th day of March 2011.
|
|
|
|
|
Signature
|
|
Title
|
|
|
|
|
/s/ Stephen
H. Fraser
Stephen
H. Fraser
|
|
President and Chief Executive Officer
(Principal Executive Officer)
|
|
|
|
/s/ Michael
T. Avara
Michael
T. Avara
|
|
Executive Vice President and Chief Financial
Officer (Principal Financial Officer
and Principal Accounting Officer)
|
|
|
|
/s/ Alex
J. Mandl
Alex
J. Mandl
|
|
Chairman of the Board and Director
|
|
|
|
/s/ James
G. Cameron
James
G. Cameron
|
|
Director
|
|
|
|
/s/ Vernon
E. Clark
Vernon
E. Clark
|
|
Director
|
|
|
|
/s/ William
J. Flynn
WILLIAM
J. FLYNN
|
|
Director
|
|
|
|
/s/ Bobby
J. Griffin
Bobby
J. Griffin
|
|
Director
|
|
|
|
/s/ Norman
Y. Mineta
Norman
Y. Mineta
|
|
Director
|
|
|
|
/s/ Thomas
P. Storrs
Thomas
P. Storrs
|
|
Director
|
82
Report of
Independent Registered Public Accounting Firm
The Board of Directors and Stockholders of
Horizon Lines, Inc.
We have audited the accompanying consolidated balance sheets of
Horizon Lines, Inc. as of December 26, 2010 and
December 20, 2009, and the related consolidated statements
of operations, stockholders equity and cash flows for each
of the three years in the period ended December 26, 2010.
Our audits also included the financial statement schedule listed
in the Index at Item 15(a). These financial statements and
schedule are the responsibility of the Companys
management. Our responsibility is to express an opinion on these
financial statements and schedule 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 financial statements referred to above
present fairly, in all material respects, the consolidated
financial position of Horizon Lines, Inc. at December 26,
2010 and December 20, 2009, and the consolidated results of
its operations and its cash flows for each of the three years in
the period ended December 26, 2010 in conformity with
U.S. generally accepted accounting principles. Also, in our
opinion, the related financial statement schedule, when
considered in relation to the basic financial statements taken
as a whole, presents fairly in all material respects the
information set forth therein.
The accompanying consolidated financial statements have been
prepared assuming that Horizon Lines, Inc will continue as a
going concern. As more fully described in Notes 1 and 3,
there is uncertainty that Horizon Lines, Inc. will remain in
compliance with certain debt covenants throughout 2011 and will
be able to cure the acceleration clause contained in the
convertible notes. These conditions and their impact on the
Companys liquidity raise substantial doubt about Horizon
Lines Inc.s ability to continue as a going concern. The
accompanying consolidated financial statements do not include
any adjustments that may result from the outcome of this
uncertainty.
We also have audited, in accordance with the standards of the
Public Company Accounting Oversight Board (United States),
Horizon Lines, Inc.s internal control over financial
reporting as of December 26, 2010, based on criteria
established in Internal Control-Integrated Framework issued by
the Committee of Sponsoring Organizations of the Treadway
Commission and our report dated March 28, 2011 expressed an
unqualified opinion thereon.
Charlotte, North Carolina
March 28, 2011
F-1
Report of
Independent Registered Public Accounting Firm
The Board of Directors and Stockholders of
Horizon Lines, Inc.
We have audited Horizon Lines, Inc.s internal control over
financial reporting as of December 26, 2010, based on
criteria established in Internal Control Integrated
Framework issued by the Committee of Sponsoring Organizations of
the Treadway Commission (the COSO criteria). Horizon Lines,
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 Managements Report
on Internal Control over Financial Reporting. Our responsibility
is to express an opinion on the companys 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, testing and evaluating the
design and operating effectiveness of internal control based on
the assessed risk, and performing such other procedures as we
considered necessary in the circumstances. We believe that our
audit provides a reasonable basis for our opinion.
A companys 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 companys
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
companys 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, Horizon Lines, Inc. maintained, in all material
respects, effective internal control over financial reporting as
of December 26, 2010, based on the COSO criteria.
We also have audited, in accordance with the standards of the
Public Company Accounting Oversight Board (United States), the
consolidated balance sheets of Horizon Lines, Inc. as of
December 26, 2010 and December 20, 2009, and the
related consolidated statements of operations,
stockholders equity and cash flows for each of the three
years in the period ended December 26, 2010 and our report
dated March 28, 2011 expressed an unqualified opinion
thereon that included an explanatory paragraph regarding Horizon
Lines Inc.s ability to continue as a going concern.
Charlotte, North Carolina
March 28, 2011
F-2
Horizon Lines,
Inc.
|
|
|
|
|
|
|
|
|
|
|
December 26,
|
|
|
December 20,
|
|
|
|
2010
|
|
|
2009
|
|
|
|
(In thousands, except
|
|
|
|
per share data)
|
|
|
ASSETS
|
Current assets:
|
|
|
|
|
|
|
|
|
Cash
|
|
$
|
2,751
|
|
|
$
|
6,419
|
|
Accounts receivable, net of allowance
|
|
|
111,887
|
|
|
|
115,069
|
|
Prepaid vessel rent
|
|
|
4,076
|
|
|
|
4,580
|
|
Materials and supplies
|
|
|
29,413
|
|
|
|
30,254
|
|
Deferred tax asset
|
|
|
2,964
|
|
|
|
3,227
|
|
Assets of discontinued operations
|
|
|
7,192
|
|
|
|
13,228
|
|
Other current assets
|
|
|
7,406
|
|
|
|
9,024
|
|
|
|
|
|
|
|
|
|
|
Total current assets
|
|
|
165,689
|
|
|
|
181,801
|
|
Property and equipment, net
|
|
|
194,657
|
|
|
|
192,624
|
|
Goodwill
|
|
|
314,149
|
|
|
|
314,149
|
|
Intangible assets, net
|
|
|
80,824
|
|
|
|
104,859
|
|
Other long-term assets
|
|
|
30,438
|
|
|
|
25,678
|
|
|
|
|
|
|
|
|
|
|
Total assets
|
|
$
|
785,757
|
|
|
$
|
819,111
|
|
|
|
|
|
|
|
|
|
|
|
LIABILITIES AND STOCKHOLDERS EQUITY
|
Current liabilities:
|
|
|
|
|
|
|
|
|
Accounts payable
|
|
$
|
43,413
|
|
|
$
|
42,372
|
|
Current portion of long-term debt, including capital lease
|
|
|
508,793
|
|
|
|
18,750
|
|
Accrued vessel rent
|
|
|
3,697
|
|
|
|
4,339
|
|
Liabilities of discontinued operations
|
|
|
3,699
|
|
|
|
6,599
|
|
Other accrued liabilities
|
|
|
108,499
|
|
|
|
104,759
|
|
|
|
|
|
|
|
|
|
|
Total current liabilities
|
|
|
668,101
|
|
|
|
176,819
|
|
Long-term debt, including capital lease, net of current portion
|
|
|
7,530
|
|
|
|
496,105
|
|
Deferred rent
|
|
|
18,026
|
|
|
|
22,585
|
|
Deferred tax liability
|
|
|
4,775
|
|
|
|
4,849
|
|
Other long-term liabilities
|
|
|
47,533
|
|
|
|
17,475
|
|
|
|
|
|
|
|
|
|
|
Total liabilities
|
|
|
745,965
|
|
|
|
717,833
|
|
|
|
|
|
|
|
|
|
|
Commitments and contingencies
|
|
|
|
|
|
|
|
|
Stockholders equity:
|
|
|
|
|
|
|
|
|
Preferred stock, $.01 par value, 30,500 authorized; no
shares issued or outstanding
|
|
|
|
|
|
|
|
|
Common stock, $.01 par value, 100,000 shares
authorized, 34,546 shares issued and 30,746 shares
outstanding at December 26, 2010 and 34,091 shares
issued and 30,291 shares outstanding at December 20,
2009
|
|
|
345
|
|
|
|
341
|
|
Treasury stock, 3,800 shares at cost
|
|
|
(78,538
|
)
|
|
|
(78,538
|
)
|
Additional paid in capital
|
|
|
193,266
|
|
|
|
196,900
|
|
Accumulated deficit
|
|
|
(73,843
|
)
|
|
|
(15,874
|
)
|
Accumulated other comprehensive loss
|
|
|
(1,438
|
)
|
|
|
(1,551
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total stockholders equity
|
|
|
39,792
|
|
|
|
101,278
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total liabilities and stockholders equity
|
|
$
|
785,757
|
|
|
$
|
819,111
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
The accompanying notes are an integral part of these
consolidated financial statements.
F-3
Horizon Lines,
Inc.
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Fiscal Years Ended
|
|
|
|
December 26,
|
|
|
December 20,
|
|
|
December 21
|
|
|
|
2010
|
|
|
2009
|
|
|
2008
|
|
|
|
(In thousands, except per share amounts)
|
|
|
Operating revenue
|
|
$
|
1,162,505
|
|
|
$
|
1,124,215
|
|
|
$
|
1,270,978
|
|
Operating expense:
|
|
|
|
|
|
|
|
|
|
|
|
|
Cost of services (excluding depreciation expense)
|
|
|
989,923
|
|
|
|
922,959
|
|
|
|
1,047,871
|
|
Depreciation and amortization
|
|
|
44,475
|
|
|
|
44,307
|
|
|
|
44,537
|
|
Amortization of vessel dry-docking
|
|
|
15,046
|
|
|
|
13,694
|
|
|
|
17,162
|
|
Selling, general and administrative
|
|
|
83,232
|
|
|
|
97,257
|
|
|
|
103,328
|
|
Legal settlements
|
|
|
31,770
|
|
|
|
20,000
|
|
|
|
|
|
Impairment charge
|
|
|
2,655
|
|
|
|
1,867
|
|
|
|
6,030
|
|
Restructuring charge
|
|
|
2,057
|
|
|
|
787
|
|
|
|
3,126
|
|
Miscellaneous (income) expense
|
|
|
(803
|
)
|
|
|
1,056
|
|
|
|
2,862
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total operating expense
|
|
|
1,168,355
|
|
|
|
1,101,927
|
|
|
|
1,224,916
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Operating (loss) income
|
|
|
(5,850
|
)
|
|
|
22,288
|
|
|
|
46,062
|
|
Other expense (income):
|
|
|
|
|
|
|
|
|
|
|
|
|
Interest expense, net
|
|
|
40,117
|
|
|
|
38,036
|
|
|
|
39,923
|
|
Loss on modification of debt
|
|
|
|
|
|
|
50
|
|
|
|
|
|
Other expense (income), net
|
|
|
27
|
|
|
|
20
|
|
|
|
(61
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(Loss) income from continuing operations before income taxes
|
|
|
(45,994
|
)
|
|
|
(15,818
|
)
|
|
|
6,200
|
|
Income tax expense (benefit)
|
|
|
305
|
|
|
|
10,589
|
|
|
|
(4,153
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net (loss) income from continuing operations
|
|
|
(46,299
|
)
|
|
|
(26,407
|
)
|
|
|
10,353
|
|
Loss from discontinued operations
|
|
|
(11,670
|
)
|
|
|
(4,865
|
)
|
|
|
(12,946
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net loss
|
|
$
|
(57,969
|
)
|
|
$
|
(31,272
|
)
|
|
$
|
(2,593
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Basic net (loss) income per share:
|
|
|
|
|
|
|
|
|
|
|
|
|
Continuing operations
|
|
$
|
(1.50
|
)
|
|
$
|
(0.87
|
)
|
|
$
|
0.34
|
|
Discontinued operations
|
|
|
(0.38
|
)
|
|
|
(0.16
|
)
|
|
|
(0.43
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Basic net loss income per share
|
|
$
|
(1.88
|
)
|
|
$
|
(1.03
|
)
|
|
$
|
(0.09
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Diluted net (loss) income per share:
|
|
|
|
|
|
|
|
|
|
|
|
|
Continuing operations
|
|
$
|
(1.50
|
)
|
|
$
|
(0.87
|
)
|
|
$
|
0.34
|
|
Discontinued operations
|
|
|
(0.38
|
)
|
|
|
(0.16
|
)
|
|
|
(0.43
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Diluted net loss per share
|
|
$
|
(1.88
|
)
|
|
$
|
(1.03
|
)
|
|
$
|
(0.09
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Number of shares used in calculations:
|
|
|
|
|
|
|
|
|
|
|
|
|
Basic
|
|
|
30,789
|
|
|
|
30,451
|
|
|
|
30,279
|
|
Diluted
|
|
|
30,789
|
|
|
|
30,451
|
|
|
|
30,523
|
|
Cash dividends declared per share
|
|
$
|
0.20
|
|
|
$
|
0.44
|
|
|
$
|
0.44
|
|
The accompanying notes are an integral part of these
consolidated financial statements.
F-4
Horizon Lines,
Inc.
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Fiscal Years Ended
|
|
|
|
December 26,
|
|
|
December 20,
|
|
|
December 21,
|
|
|
|
2010
|
|
|
2009
|
|
|
2008
|
|
|
|
|
|
|
(In thousands)
|
|
|
|
|
|
Cash flows from operating activities:
|
|
|
|
|
|
|
|
|
|
|
|
|
Net (loss) income from continuing operations
|
|
$
|
(46,299
|
)
|
|
$
|
(26,407
|
)
|
|
$
|
10,353
|
|
Adjustments to reconcile net (loss) income to net cash provided
by operating activities:
|
|
|
|
|
|
|
|
|
|
|
|
|
Depreciation
|
|
|
23,777
|
|
|
|
24,002
|
|
|
|
24,232
|
|
Amortization of intangibles
|
|
|
20,698
|
|
|
|
20,305
|
|
|
|
20,305
|
|
Amortization of vessel dry-docking
|
|
|
15,046
|
|
|
|
13,694
|
|
|
|
17,162
|
|
Impairment charge
|
|
|
2,655
|
|
|
|
1,867
|
|
|
|
6,030
|
|
Restructuring charge
|
|
|
2,057
|
|
|
|
787
|
|
|
|
3,126
|
|
Amortization of deferred financing costs
|
|
|
3,412
|
|
|
|
2,947
|
|
|
|
2,693
|
|
Deferred income taxes
|
|
|
148
|
|
|
|
10,617
|
|
|
|
(4,153
|
)
|
Gain on equipment disposals
|
|
|
(47
|
)
|
|
|
(154
|
)
|
|
|
(24
|
)
|
Gain on sale of interest in joint venture
|
|
|
(724
|
)
|
|
|
|
|
|
|
|
|
Loss on early modification/extinguishment of debt
|
|
|
|
|
|
|
50
|
|
|
|
|
|
Accretion on convertible notes
|
|
|
11,060
|
|
|
|
10,011
|
|
|
|
8,901
|
|
Stock-based compensation
|
|
|
2,122
|
|
|
|
3,096
|
|
|
|
3,651
|
|
Changes in operating assets and liabilities:
|
|
|
|
|
|
|
|
|
|
|
|
|
Accounts receivable, net
|
|
|
1,301
|
|
|
|
13,710
|
|
|
|
7,931
|
|
Materials and supplies
|
|
|
807
|
|
|
|
(6,739
|
)
|
|
|
7,636
|
|
Other current assets
|
|
|
(1,148
|
)
|
|
|
1,247
|
|
|
|
23
|
|
Accounts payable
|
|
|
1,041
|
|
|
|
910
|
|
|
|
1,434
|
|
Accrued liabilities
|
|
|
5,581
|
|
|
|
(767
|
)
|
|
|
(5,653
|
)
|
Vessel rent
|
|
|
(3,898
|
)
|
|
|
(4,874
|
)
|
|
|
(4,883
|
)
|
Vessel dry-docking payments
|
|
|
(19,159
|
)
|
|
|
(14,735
|
)
|
|
|
(13,913
|
)
|
Accrued legal settlements
|
|
|
26,770
|
|
|
|
15,000
|
|
|
|
|
|
Other assets/liabilities
|
|
|
(768
|
)
|
|
|
(3,486
|
)
|
|
|
3,506
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net cash provided by operating activities
|
|
|
44,432
|
|
|
|
61,081
|
|
|
|
88,357
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Cash flows from investing activities:
|
|
|
|
|
|
|
|
|
|
|
|
|
Purchases of equipment
|
|
|
(16,298
|
)
|
|
|
(12,931
|
)
|
|
|
(38,639
|
)
|
Proceeds from the sale of interest in joint venture
|
|
|
1,100
|
|
|
|
|
|
|
|
|
|
Proceeds from sale of equipment
|
|
|
454
|
|
|
|
1,237
|
|
|
|
500
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net cash used in investing activities
|
|
|
(14,744
|
)
|
|
|
(11,694
|
)
|
|
|
(38,139
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Cash flows from financing activities:
|
|
|
|
|
|
|
|
|
|
|
|
|
Borrowing under revolving credit facility
|
|
|
108,800
|
|
|
|
64,000
|
|
|
|
78,000
|
|
Payments on revolving credit facility
|
|
|
(108,800
|
)
|
|
|
(84,000
|
)
|
|
|
(80,000
|
)
|
Payments of long-term debt
|
|
|
(18,750
|
)
|
|
|
(7,968
|
)
|
|
|
(6,538
|
)
|
Dividend to stockholders
|
|
|
(6,281
|
)
|
|
|
(13,397
|
)
|
|
|
(13,273
|
)
|
Payment of financing costs
|
|
|
(75
|
)
|
|
|
(3,492
|
)
|
|
|
(139
|
)
|
Common stock issued under employee stock purchase plan
|
|
|
111
|
|
|
|
104
|
|
|
|
38
|
|
Payments on capital lease obligation
|
|
|
(124
|
)
|
|
|
|
|
|
|
(81
|
)
|
Purchase of treasury stock
|
|
|
|
|
|
|
|
|
|
|
(29,330
|
)
|
Proceeds from exercise of stock options
|
|
|
|
|
|
|
|
|
|
|
13
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net cash used in financing activities
|
|
|
(25,119
|
)
|
|
|
(44,753
|
)
|
|
|
(51,310
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net change in cash from continuing operations
|
|
|
4,569
|
|
|
|
4,634
|
|
|
|
(1,092
|
)
|
Net change in cash from discontinued operations
|
|
|
(8,237
|
)
|
|
|
(3,702
|
)
|
|
|
303
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net change in cash
|
|
|
(3,688
|
)
|
|
|
932
|
|
|
|
(789
|
)
|
Cash at beginning of year
|
|
|
6,419
|
|
|
|
5,487
|
|
|
|
6,276
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Cash at end of year
|
|
$
|
2,751
|
|
|
$
|
6,419
|
|
|
$
|
5,487
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
The accompanying notes are an integral part of these
consolidated financial statements.
F-5
Horizon Lines,
Inc.
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Retained
|
|
|
Accumulated
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Additional
|
|
|
Earnings
|
|
|
Other
|
|
|
|
|
|
|
Common
|
|
|
Common
|
|
|
Treasury
|
|
|
Paid in
|
|
|
(Accumulated
|
|
|
Comprehensive
|
|
|
Stockholders
|
|
|
|
Shares
|
|
|
Stock
|
|
|
Stock
|
|
|
Capital
|
|
|
Deficit)
|
|
|
Loss
|
|
|
Equity
|
|
|
|
(In thousands)
|
|
|
Stockholders equity at December 23, 2007
|
|
|
31,502
|
|
|
$
|
337
|
|
|
$
|
(49,208
|
)
|
|
$
|
194,625
|
|
|
$
|
37,960
|
|
|
$
|
(305
|
)
|
|
$
|
183,409
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Exercise of stock options
|
|
|
1
|
|
|
|
|
|
|
|
|
|
|
|
13
|
|
|
|
|
|
|
|
|
|
|
|
14
|
|
Vesting of restricted stock
|
|
|
15
|
|
|
|
|
|
|
|
|
|
|
|
(34
|
)
|
|
|
|
|
|
|
|
|
|
|
(34
|
)
|
Dividend to shareholders
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(13,273
|
)
|
|
|
|
|
|
|
(13,273
|
)
|
Stock-based compensation
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
3,651
|
|
|
|
|
|
|
|
|
|
|
|
3,651
|
|
Stock issued under Employee Stock Purchase Plan
|
|
|
118
|
|
|
|
1
|
|
|
|
|
|
|
|
1,389
|
|
|
|
|
|
|
|
|
|
|
|
1,389
|
|
Common stock repurchases
|
|
|
(1,628
|
)
|
|
|
|
|
|
|
(29,330
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(29,330
|
)
|
Net income
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
3,059
|
|
|
|
|
|
|
|
3,059
|
|
Effects of the adoption of FSP
APB 14-1
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(5,652
|
)
|
|
|
|
|
|
|
(5,652
|
)
|
Unrecognized actuarial losses, net of tax
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(4,095
|
)
|
|
|
(4,095
|
)
|
Fair value of interest rate swap, net of tax
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(2,402
|
)
|
|
|
(2,402
|
)
|
Amortization of pension and post-retirement benefit transition
obligation, net of tax
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
100
|
|
|
|
100
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Comprehensive loss
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(8,990
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Stockholders equity at December 21, 2008
|
|
|
30,008
|
|
|
$
|
338
|
|
|
$
|
(78,538
|
)
|
|
$
|
199,644
|
|
|
$
|
22,094
|
|
|
$
|
(6,702
|
)
|
|
$
|
136,836
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Vesting of restricted stock
|
|
|
121
|
|
|
|
1
|
|
|
|
|
|
|
|
(178
|
)
|
|
|
|
|
|
|
|
|
|
|
(177
|
)
|
Dividend to shareholders
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(6,701
|
)
|
|
|
(6,696
|
)
|
|
|
|
|
|
|
(13,397
|
)
|
Stock-based compensation
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
3,582
|
|
|
|
|
|
|
|
|
|
|
|
3,582
|
|
Stock issued under Employee Stock Purchase Plan
|
|
|
162
|
|
|
|
2
|
|
|
|
|
|
|
|
553
|
|
|
|
|
|
|
|
|
|
|
|
555
|
|
Net loss
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(31,272
|
)
|
|
|
|
|
|
|
(31,272
|
)
|
Unrecognized actuarial gains, net of tax
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
4,475
|
|
|
|
4,475
|
|
Fair value of interest rate swap, net of tax
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
229
|
|
|
|
229
|
|
Amortization of pension and post-retirement benefit transition
obligation, net of tax
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
447
|
|
|
|
447
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Comprehensive loss
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(26,121
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Stockholders equity at December 20, 2009
|
|
|
30,291
|
|
|
$
|
341
|
|
|
$
|
(78,538
|
)
|
|
$
|
196,900
|
|
|
$
|
(15,874
|
)
|
|
$
|
(1,551
|
)
|
|
$
|
101,278
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Vesting of restricted stock
|
|
|
197
|
|
|
|
2
|
|
|
|
|
|
|
|
(3
|
)
|
|
|
|
|
|
|
|
|
|
|
(1
|
)
|
Dividend to shareholders
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(6,448
|
)
|
|
|
|
|
|
|
|
|
|
|
(6,448
|
)
|
Stock-based compensation
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
2,122
|
|
|
|
|
|
|
|
|
|
|
|
2,122
|
|
Stock issued under Employee Stock Purchase Plan
|
|
|
258
|
|
|
|
2
|
|
|
|
|
|
|
|
695
|
|
|
|
|
|
|
|
|
|
|
|
697
|
|
Net loss
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(57,969
|
)
|
|
|
|
|
|
|
(57,969
|
)
|
Unrecognized actuarial gains, net of tax
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(1,442
|
)
|
|
|
(1,442
|
)
|
Fair value of interest rate swap, net of tax
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
1,141
|
|
|
|
1,141
|
|
Amortization of pension and post-retirement benefit transition
obligation, net of tax
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
414
|
|
|
|
414
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Comprehensive loss
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(57,856
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Stockholders equity at December 26, 2010
|
|
|
30,746
|
|
|
$
|
345
|
|
|
$
|
(78,538
|
)
|
|
$
|
193,266
|
|
|
$
|
(73,843
|
)
|
|
$
|
(1,438
|
)
|
|
$
|
39,792
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
The accompanying notes are an integral part of these
consolidated financial statements.
F-6
Horizon Lines,
Inc.
|
|
1.
|
Basis of
Presentation and Operations
|
Horizon Lines, Inc. (the Company) operates as a
holding company for Horizon Lines, LLC (Horizon
Lines), a Delaware limited liability company and
wholly-owned subsidiary, Horizon Logistics, LLC (Horizon
Logistics), a Delaware limited liability company and
wholly-owned subsidiary, Horizon Lines of Puerto Rico, Inc.
(HLPR), a Delaware corporation and wholly-owned
subsidiary, and Hawaii Stevedores, Inc. (HSI), a
Hawaii corporation. Horizon Lines operates as a Jones Act
container shipping business with primary service to ports within
the continental United States, Puerto Rico, Alaska, Hawaii, and
Guam. Under the Jones Act, all vessels transporting cargo
between covered locations must, subject to limited exceptions,
be built in the U.S., registered under the U.S. flag,
manned by predominantly U.S. crews, and owned and operated
by
U.S.-organized
companies that are controlled and 75% owned by
U.S. citizens. Horizon Lines also offers terminal services.
In addition, on December 13, 2010, Horizon Lines commenced
a weekly trans-Pacific liner service between Asia and the
U.S. West Coast. Horizon Logistics provides integrated
logistics service offerings, including rail, trucking,
warehousing, distribution, and non-vessel operating common
carrier (NVOCC) services. HLPR operates as an agent
for Horizon Lines in Puerto Rico and also provides terminal
services in Puerto Rico.
The accompanying consolidated financial statements include the
consolidated accounts of the Company and its majority owned
subsidiaries and the related consolidated statements of
operations, stockholders equity and cash flows. All
significant intercompany accounts and transactions have been
eliminated. Certain prior period balances have been reclassified
to conform to current period presentation.
During the 4th quarter of 2010, the Company began a review
of strategic alternatives for its logistics operations. It was
determined that as a result of several factors, including:
1) the historical operating losses within the logistics
operations, 2) the projected continuation of operating
losses, and 3) focus on the recently commenced
international shipping activities, the Company would begin
exploring the sale of its logistics operations. It is expected
the entire component comprising the logistics operations will be
sold and that the current logistics customers will no longer be
customers of the Company. As such, there will not be any future
cash inflows received from these logistics customers and no cash
outflows related to these operations. In addition, the Company
does not expect to have any significant continuing involvement
in the logistics operations after the sale is consummated. As a
result, the logistics operations have been classified as
discontinued operations.
Going
Concern
The accompanying consolidated financial statements have been
prepared assuming the Company will continue as a going concern,
which contemplates realization of assets and the satisfaction of
liabilities in the normal course of business for a reasonable
period following the date of these financial statements. As
discussed in more detail in Note 3, the Company expects to
not be in compliance with its debt covenants throughout 2011,
which raises substantial doubt about our ability to continue as
a going concern.
|
|
2.
|
Significant
Accounting Policies
|
Cash
Cash of the Company consists principally of cash held in banks
and temporary investments having a maturity of three months or
less at the date of acquisition.
F-7
Horizon Lines,
Inc.
Notes to
Consolidated Financial
Statements (Continued)
Allowance for
Doubtful Accounts and Revenue Adjustments
The Company maintains an allowance for doubtful accounts based
upon the expected collectability of accounts receivable
reflective of its historical collection experience. In
circumstances in which management is aware of a specific
customers inability to meet its financial obligation to
the Company (for example, bankruptcy filings, accounts turned
over for collection or litigation), the Company records a
specific reserve for the bad debts against amounts due. For all
other customers, the Company recognizes reserves for these bad
debts based on the length of time the receivables are past due
and other customer specific factors including, type of service
provided, geographic location and industry. The Company monitors
its collection risk on an ongoing basis through the use of
credit reporting agencies. Accounts are written off after all
means of collection, including legal action, have been
exhausted. The Company does not require collateral from its
trade customers.
In addition, the Company maintains an allowance for revenue
adjustments consisting of amounts reserved for billing rate
changes that are not captured upon load initiation. These
adjustments generally arise: (1) when the sales department
contemporaneously grants small rate changes (spot
quotes) to customers that differ from the standard rates
in the system; (2) when freight requires dimensionalization
or is reweighed resulting in a different required rate;
(3) when billing errors occur; and (4) when data entry
errors occur. When appropriate, permanent rate changes are
initiated and reflected in the system. These revenue adjustments
are recorded as a reduction to revenue. During 2010, average
revenue adjustments per month were approximately
$0.3 million, on average total revenue per month of
approximately $96.9 million (less than 0.3% of monthly
revenue). In order to estimate the allowance for revenue
adjustments related to ending accounts receivable, the Company
prepares an analysis that considers average total monthly
revenue adjustments and the average lag for identifying and
processing these revenue adjustments. Based on this analysis,
the Company establishes an allowance for approximately
65-85 days
(dependent upon experience in the last twelve months) of average
revenue adjustments, adjusted for rebates and billing errors.
The lag is periodically adjusted based on actual historical
experience. Additionally, the average amount of revenue
adjustments per month can vary in relation to the level of sales
or based on other factors (such as personnel issues that could
result in excessive manual errors or in excessive spot quotes
being granted). Both of these significant assumptions are
continually evaluated for validity.
The allowance for doubtful accounts and revenue adjustments
approximated $7.0 million at both December 26, 2010
and December 20, 2009.
Materials and
Supplies
Materials and supplies consist primarily of fuel inventory
aboard vessels and inventory for maintenance of property and
equipment. Fuel is carried at cost on the first in, first out
(FIFO) basis, while all other materials and supplies are carried
at average cost.
Property and
Equipment
Property and equipment are stated at cost. Certain costs
incurred in the development of internal-use software are
capitalized. Routine maintenance, repairs, and removals other
than vessel dry-dockings are charged to expense. Expenditures
that materially increase values, change capacities or extend
useful lives of the assets are capitalized. Depreciation and
amortization is computed by the
F-8
Horizon Lines,
Inc.
Notes to
Consolidated Financial
Statements (Continued)
straight-line method over the estimated useful lives of the
assets. The estimated useful lives of the Companys assets
are as follows:
|
|
|
|
|
Buildings, chassis and cranes
|
|
|
25 years
|
|
Containers
|
|
|
15 years
|
|
Vessels
|
|
|
20-40 years
|
|
Software
|
|
|
3 years
|
|
Other
|
|
|
3-10 years
|
|
The Company evaluates long-lived assets for impairment whenever
events or changes in circumstances indicate that the carrying
amount of an asset may not be recoverable. When undiscounted
future cash flows will not be sufficient to recover the carrying
amount of an asset, the asset is written down to its fair value.
Vessel
Dry-docking
Vessels must undergo regular inspection, monitoring and
maintenance, referred to as dry-docking, to maintain the
required operating certificates. United States Coast Guard
regulations generally require that vessels be dry-docked twice
every five years. The costs of these scheduled dry-dockings are
customarily capitalized and are then amortized over a
30-month
period beginning with the accounting period following the
vessels release from dry-dock, because dry-dockings enable
the vessel to continue operating in compliance with
U.S. Coast Guard requirements,.
The Company takes advantage of vessel dry-dockings to also
perform normal repair and maintenance procedures on the vessels.
These routine vessel maintenance and repair procedures are
charged to expense as incurred. In addition, the Company will
occasionally during a vessel dry-docking, replace vessel
machinery or equipment and perform procedures that materially
enhance capabilities of a vessel. In these circumstances, the
expenditures are capitalized and depreciated over the estimated
useful lives.
Intangible
Assets
Intangible assets consist of goodwill, customer
contracts/relationships, trademarks, and deferred financing
costs. The Company amortizes customer contracts/relationships
using the straight line method over the expected useful lives of
4 to 10 years. The Company also amortizes trademarks using
the straight line method over the expected life of the related
trademarks of 15 years. The Company amortizes debt issue
cost using the effective interest method over the term of the
related debt.
Goodwill and other intangible assets with indefinite useful
lives are not amortized but are subject to annual impairment
tests as of the first day of the fourth quarter. At least
annually, or sooner if there is an indicator of impairment, the
fair value of the reporting unit is calculated. If the
calculated fair value is less than the carrying amount, an
impairment loss might be recognized.
Revenue
Recognition
The Company records transportation revenue and an accrual for
the corresponding costs to complete delivery when the cargo
first sails from its point of origin. The Company believes this
method of revenue recognition does not result in a material
difference in reported net income on an annual or quarterly
basis as compared to recording transportation revenue between
accounting periods based upon the relative transit time within
each respective period with expenses recognized as incurred. The
F-9
Horizon Lines,
Inc.
Notes to
Consolidated Financial
Statements (Continued)
Company recognizes revenue and related costs of sales for
terminal and other services upon completion of services.
The Company recognizes revenue from logistics operations as
service is rendered. Gross revenues consist of the total dollar
value of services purchased by shippers. Revenue and the
associated costs for the following services are recognized upon
proof of delivery of freight: truck brokerage, rail brokerage,
expedited international air, expedited domestic ground services,
and drayage. Horizon Logistics also offers warehousing/long-term
storage for which revenue is recognized based upon warehouse
space occupied during the reporting period.
Insurance
Reserves
The Company maintains insurance for casualty, property and
health claims. Most of the Companys insurance arrangements
include a level of self-insurance. Reserves are established
based on the value of cargo damaged and the use of current
trends and historical data for other claims. These estimates are
based on historical information along with certain assumptions
about future events.
Derivative
Instruments
The Company recognizes all derivative instruments in the
financial statements at fair value.
The Company occasionally utilizes derivative instruments tied to
various indexes to hedge a portion of its exposure to bunker
fuel price increases. These instruments consist of fixed price
swap agreements. The Company does not use derivative instruments
for trading purposes. Credit risk related to the derivative
financial instruments is considered minimal and is managed by
requiring high credit standards for its counterparties.
Changes in fair value of derivative financial instruments are
recorded as adjustments to the assets or liabilities being
hedged in the statement of operations or in accumulated other
comprehensive income (loss), depending on whether the derivative
is designated and qualifies for hedge accounting, the type of
hedge transaction represented and the effectiveness of the hedge.
Income
Taxes
The Company accounts for income taxes under the liability method
whereby deferred tax assets and liabilities are measured using
enacted tax laws and rates expected to apply to taxable income
in the years in which the assets and liabilities are expected to
be recovered or settled. The effects on deferred tax assets and
liabilities of subsequent changes in the tax laws and rates are
recognized in income during the year the changes are enacted.
Deferred tax assets are reduced by a valuation allowance when,
in the judgment of management, it is more likely than not that
some portion or all of the deferred tax assets will not be
realizable.
The American Jobs Creation Act of 2004 (the Act)
instituted an elective alternative tax on qualifying shipping
activities (tonnage tax) for corporations operating
U.S.-flag
vessels in U.S. foreign trade, as defined in the Act.
During 2006, after evaluating the merits and requirements of the
tonnage tax, the Company elected the application of the tonnage
tax instead of the federal corporate income tax on income from
its qualifying shipping activities. As the Company expects to
continue to qualify for application of the tonnage tax, deferred
tax assets and liabilities relating to the qualifying shipping
activities are measured using an effective tax rate of zero.
F-10
Horizon Lines,
Inc.
Notes to
Consolidated Financial
Statements (Continued)
Stock-based
Compensation
The value of each equity-based award is estimated on the date of
grant using the Black-Scholes option-pricing model. The
Black-Scholes model takes into account volatility in the price
of our stock, the risk-free interest rate, the estimated life of
the equity-based award, the closing market price of our stock
and the exercise price. Due to the lack of trading activity
since our stock became publicly traded, we base our estimates of
stock price volatility on the average of (i) our historical
stock price over the period in which it has been publicly traded
and (ii) historical volatility of similar entities
commensurate with the expected term of the equity-based award;
however, this estimate is neither predictive nor indicative of
the future performance of our stock. The estimates utilized in
the Black-Scholes calculation involve inherent uncertainties and
the application of management judgment. In addition, we are
required to estimate the expected forfeiture rate and only
recognize expense for those options expected to vest.
Pension and
Post-retirement Benefits
The Company has noncontributory pension plans and
post-retirement benefit plans covering certain union employees.
Costs of these plans are charged to current operations and
consist of several components that are based on various
actuarial assumptions regarding future experience of the plans.
In addition, certain other union employees are covered by plans
provided by their respective union organizations. The Company
expenses amounts as paid in accordance with union agreements.
Amounts recorded for the pension plan and the post-retirement
benefit plan reflect estimates related to future interest rates,
investment returns, and employee turnover. The Company reviews
all assumptions and estimates on an ongoing basis.
The Company is required to recognize the overfunded or
underfunded status of its defined benefit and post-retirement
benefit plans as an asset or liability, with changes in the
funded status recognized as an adjustment to the ending balance
of other accumulated comprehensive income (loss) in the year
they occur. The pension plan and the post-retirement benefit
plans are in an underfunded status.
Computation of
Net Income (Loss) per Share
Basic net income (loss) per share is computed by dividing net
income (loss) by the weighted daily average number of shares of
common stock outstanding during the period. Certain of the
Companys unvested stock-based awards contain
non-forfeitable rights to dividends. As a result, these
participating securities are included in the denominator for
basic net income (loss) per share. Diluted net income per share
is computed using the weighted daily average number of shares of
common stock outstanding for the period plus dilutive potential
common shares, including stock options and warrants using the
treasury-stock method and from convertible preferred stock using
the if converted method.
Fiscal
Period
The fiscal period of the Company typically ends on the Sunday
before the last Friday in December. For fiscal year 2010, the
fiscal period began on December 21, 2009 and ended on
December 26, 2010. For fiscal year 2009, the fiscal period
began on December 22, 2008 and ended on December 20,
2009. For fiscal year 2008, the fiscal period began on
December 24, 2007 and ended on December 21, 2008. The
fiscal period ended December 26, 2010 consisted of
53 weeks and the fiscal years ended December 20, 2009
and December 21, 2008 each consisted of 52 weeks.
F-11
Horizon Lines,
Inc.
Notes to
Consolidated Financial
Statements (Continued)
Use of
Estimates
The preparation of financial statements in conformity with
accounting principles generally accepted in the United States of
America requires management to make estimates and assumptions
that affect the reported amounts of assets and liabilities and
disclosure of contingent assets and liabilities at the date of
the financial statements and the reported amounts of revenue and
expenses during the reporting period. Actual results may differ
from those estimates. Significant estimates include the
assessment of the realization of accounts receivable, deferred
tax assets and long-lived assets and the useful lives of
intangible assets and property and equipment.
Recent
Accounting Pronouncements
In January 2010, the Financial Accounting Standards Board
(FASB) issued an amendment to the accounting for
fair value measurements and disclosures. This amendment details
additional disclosures on fair value measurements, requires a
gross presentation of activities within a Level 3
roll-forward, and adds a new requirement to disclose transfers
in and out of Level 1 and Level 2 measurements. The
new disclosures are required of all entities that are required
to provide disclosures about recurring and nonrecurring fair
value measurements. This amendment is effective in the first
interim or reporting period beginning after December 15,
2009, with an exception for the gross presentation of
Level 3 roll-forward information, which is required for
annual reporting periods beginning after December 15, 2010,
and for interim reporting periods within those years. The
adoption of the provisions of this amendment required in the
first interim period after December 15, 2009 did not have a
material impact on the Companys financial statement
disclosures. In addition, the adoption of the provisions of this
amendment required for periods beginning after December 15,
2010 is not expected to have a material impact on the
Companys financial statement disclosures.
In June 2009, the FASB issued authoritative guidance that amends
the evaluation criteria to identify the primary beneficiary of a
variable interest entity and requires ongoing assessment of
whether an enterprise is the primary beneficiary of the variable
interest entity. The determination of whether a reporting entity
is required to consolidate another entity is based on, among
other things, the other entitys purpose and design and the
reporting entitys ability to direct the activities that
most significantly impact the other entitys economic
performance. The Company adopted the provisions of the
authoritative guidance during the quarter ended March 21,
2010. There was no impact on the Companys consolidated
results of operations and financial position, other than the
modification of certain disclosures related to the
Companys involvement in variable interest entities.
In June 2009, the FASB issued an amendment to the accounting and
disclosure requirements for transfers of financial assets. The
amendment modifies the derecognition guidance and eliminates the
exemption from consolidation for qualifying special-purpose
entities. The Company adopted the provisions of the
authoritative guidance during the quarter ended March 21,
2010 and there was no impact on the Companys consolidated
results of operations and financial position.
Supplemental
Cash Flow Information
The Companys employee stock purchase plan contains a
dividend reinvestment provision. As such, during 2010, 2009 and
2008, the Company retained a total of $0.1 million,
$0.1 million and $38 thousand, respectively, related to
quarterly dividends paid on outstanding shares purchased through
the employee stock purchase plan and issued 18 thousand, 26
thousand, and 8 thousand shares, respectively, of its common
stock.
F-12
Horizon Lines,
Inc.
Notes to
Consolidated Financial
Statements (Continued)
Cash payments (refunds) for interest and income taxes were as
follows (in thousands):
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Fiscal Years Ended
|
|
|
|
December 26,
|
|
|
December 20,
|
|
|
December 21,
|
|
|
|
2010
|
|
|
2009
|
|
|
2008
|
|
|
Interest
|
|
$
|
26,199
|
|
|
$
|
24,479
|
|
|
$
|
29,116
|
|
Income taxes
|
|
|
(14
|
)
|
|
|
(678
|
)
|
|
|
711
|
|
Long-term debt consists of the following (in thousands):
|
|
|
|
|
|
|
|
|
|
|
December 26,
|
|
|
December 20,
|
|
|
|
2010
|
|
|
2009
|
|
|
Term loan
|
|
$
|
93,750
|
|
|
$
|
112,500
|
|
Revolving credit facility
|
|
|
100,000
|
|
|
|
100,000
|
|
4.25% convertible senior notes, net of original issue discount
|
|
|
313,414
|
|
|
|
302,355
|
|
Capital lease obligations
|
|
|
9,159
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total long-term debt
|
|
|
516,323
|
|
|
|
514,855
|
|
Current portion
|
|
|
(508,793
|
)
|
|
|
(18,750
|
)
|
|
|
|
|
|
|
|
|
|
Long-term debt, net of current
|
|
$
|
7,530
|
|
|
$
|
496,105
|
|
|
|
|
|
|
|
|
|
|
The Company expects that it will experience a covenant default
under the indenture related to the $330.0 million aggregate
principal amount of 4.25% Convertible Senior Notes due 2012
(the Notes). On March 22, 2011, the Court
entered a judgment against the Company whereby the Company is
required to pay a fine of $45.0 million to resolve the
investigation by the U.S. Department of Justice into our
domestic ocean shipping business. In March 2011, the Company
solicited consents from the holders of the Notes to waive the
default that may arise in connection with that judgment. The
Company has until May 21, 2011 to satisfy the judgment or
otherwise cure the default under the indenture relating to the
Notes, and the Company has not been able to obtain a waiver from
the holders of the Notes. Acceleration of all principal and
interest may be pursued by the indenture trustee in the event of
default. Should the indenture trustee pursue an acceleration,
such an action would create a default under the Senior Credit
Facility and other loans and financing arrangements due to cross
default provisions contained in those agreements.
The Senior Credit Facility contains cross default provisions and
certain acceleration clauses whereby if the maturity of the
Notes is accelerated, maturity of the Senior Credit Facility can
also be accelerated. In addition, the Company expects to
experience a covenant default in connection with the amended
financial covenants beginning in the third fiscal quarter of
2011. Noncompliance with the financial covenants in the Senior
Credit Facility constitutes an event of default, which, if not
waived, could prevent the Company from making borrowings under
the Senior Credit Facility.
The Company anticipates working with its lenders to obtain
amendments or to refinance prior to any possible covenant
noncompliance; however the Company cannot assure that it will be
able to secure such amendments or a refinancing. As a result of
these factors, the Company has classified its obligations under
the Notes and the Senior Credit Facility as current liabilities
in the accompanying Consolidated Balance Sheets as of
December 26, 2010.
F-13
Horizon Lines,
Inc.
Notes to
Consolidated Financial
Statements (Continued)
Senior Credit
Facility
On August 8, 2007, the Company entered into a credit
agreement (the Senior Credit Facility) secured by
substantially all of the owned assets of the Company. On
June 11, 2009, the Senior Credit Facility was amended
resulting in a reduction in the size of the revolving credit
facility from $250.0 million to $225.0 million.
The terms of the Senior Credit Facility also provide for a
$20.0 million swingline subfacility and a
$50.0 million letter of credit subfacility.
The amendment to the Senior Credit Facility was intended to
provide the Company the flexibility necessary to effect the
settlement of the Puerto Rico class action litigation and to
incur other antitrust related litigation expenses. The amendment
revised the definition of Consolidated EBITDA by allowing for
certain charges, including (i) the Puerto Rico settlement
and (ii) litigation expenses related to antitrust
litigation matters in an amount not to exceed $25 million
in the aggregate and $15 million over a
12-month
period, to be added back to the calculation of Consolidated
EBITDA. In addition, the Senior Credit Facility was amended to
(i) increase the spread over LIBOR and Prime based rates by
150 bps, (ii) increase the range of fees on the unused
portion of the commitment, (iii) eliminate the
$150 million incremental facility, (iv) modify the
definition of Consolidated EBITDA to eliminate the term
non-recurring charges, and (v) incorporate
other structural enhancements, including a step-down in the
secured leverage ratio and further limitations on the ability to
make certain restricted payments. As a result of the amendment
to the Senior Credit Facility, the Company paid
$3.5 million in financing costs and recorded a loss on
modification of debt of $0.1 million.
The Company made quarterly principal payments on the term loan
of approximately $1.6 million from December 31, 2007
through September 30, 2009. Effective December 31,
2009, quarterly payments increased to $4.7 million through
September 30, 2011, at which point quarterly payments will
increase to $18.8 million until final maturity on
August 8, 2012. Final maturity of the Senior Credit
Facility could accelerate to February 15, 2012 unless the
Notes (as defined below) are refinanced, or arrangements for the
refinance of the Notes have been made, in each case on terms and
conditions reasonably satisfactory to the Administrative Agent
of the Senior Credit Facility. The interest rate payable under
the Senior Credit Facility varies depending on the types of
advances or loans the Company selects. Borrowings under the
Senior Credit Facility bear interest primarily at LIBOR-based
rates plus a spread which ranges from 2.75% to 3.5% (LIBOR plus
3.25% as of December 26, 2010) depending on the
Companys ratio of total secured debt to EBITDA (as defined
in the Senior Credit Facility). The Company also has the option
to borrow at Prime plus a spread which ranges from 1.75% to 2.5%
(Prime plus 2.25% as of December 26, 2010). The weighted
average interest rate at December 26, 2010 was
approximately 4.6%, which includes the impact of the interest
rate swap (as defined below). The Company also pays a variable
commitment fee on the unused portion of the commitment, ranging
from 0.375% to 0.50% (0.50% as of December 26, 2010).
The Senior Credit Facility contains customary covenants,
including two financial covenants with respect to the
Companys leverage ratio and interest coverage ratio and
covenants that limit distribution of dividends and stock
repurchases. It also contains customary events of default,
subject to grace periods. The Company was in compliance with all
such covenants as of December 26, 2010. As of
December 26, 2010, total unused borrowing capacity under
the revolving credit facility was $113.7 million, after
taking into account $100.0 million outstanding under the
revolver and $11.3 million utilized for outstanding letters
of credit. However, based on the Companys leverage ratio,
effective borrowing availability under the revolving credit
facility was $57.6 million as of December 26, 2010.
On March 9, 2011, the Company entered into an amendment of
its Senior Credit Facility. The amendment waives default
conditions related to the recently announced settlement
agreement with the DOJ. In addition, the Senior Credit Facility
was amended to (i) increase the senior secured
F-14
Horizon Lines,
Inc.
Notes to
Consolidated Financial
Statements (Continued)
leverage ratio from 2.75x to 3.50x for the fiscal quarters
ending March 27, 2011 and June 26, 2011, and from
2.75x to 3.00x for the fiscal quarter ending September 25,
2011 (remaining at 2.75x for all fiscal quarters thereafter),
(ii) decrease the interest coverage ratio minimum from
3.50x to 2.50x for the fiscal quarters ending March 27,
2011 and June 26, 2011, from 3.50x to 2.75x for the fiscal
quarter ending September 25, 2011, and from 3.50x to 3.00x
for the fiscal quarter ending December 25, 2011 (remaining
at 3.50x for all fiscal quarters thereafter),
(iii) increase the spread over LIBOR and Prime rates by
250 bps, and (iv) restrict cash dividends from being
paid on any class of capital stock. The amendment revises the
definition of Consolidated EBITDA by allowing for certain
charges, including (i) transaction costs incurred in
connection with obtaining the credit agreement amendment, the
convertible bondholder waiver consent, and any other proposed
refinancing costs that are not counted as interest expense or
capitalized as deferred financing fees in an amount not to
exceed $5.0 million and (ii) litigation expenses
related to antitrust litigation matters in an amount not to
exceed $28 million in the aggregate, to be added back to
the calculation of Consolidated EBITDA. As a result of the
amendment, the Company paid $1.3 million in financing costs.
4.25% Convertible
Senior Notes
On August 8, 2007, the Company issued the
Notes. The Notes are general unsecured
obligations of the Company and rank equally in right of payment
with all of the Companys other existing and future
obligations that are unsecured and unsubordinated. The Notes
bear interest at the rate of 4.25% per annum, which is payable
in cash semi-annually on February 15 and August 15 of each year.
The Notes mature on August 15, 2012, unless earlier
converted, redeemed or repurchased in accordance with their
terms prior to August 15, 2012. Holders of the Notes may
require the Company to repurchase the Notes for cash at any time
before August 15, 2012 if certain fundamental changes
occur. The Company recorded the liability component at its fair
value of $279.8 million and recorded the offsetting
$50.2 million as a component of equity. The original issue
discount is being amortized through interest expense through the
maturity date of the Notes.
Each $1,000 of principal of the Notes will initially be
convertible into 26.9339 shares of the Companys
common stock, which is the equivalent of $37.13 per share,
subject to adjustment upon the occurrence of specified events
set forth under the terms of the Notes. Upon conversion, the
Company would pay the holder the cash value of the applicable
number of shares of its common stock, up to the principal amount
of the note. Amounts in excess of the principal amount, if any,
may be paid in cash or in stock, at the Companys option.
Holders may convert their Notes into the Companys common
stock as follows:
|
|
|
|
|
Prior to May 15, 2012, if during any calendar quarter, and
only during such calendar quarter, if the last reported sale
price of the Companys common stock for at least 20 trading
days in a period of 30 consecutive trading days ending on the
last trading day of the preceding calendar quarter exceeds 120%
of the applicable conversion price in effect on the last trading
day of the immediately preceding calendar quarter;
|
|
|
|
During any five business day period prior to May 15, 2012,
immediately after any five consecutive trading day period (the
measurement period) in which the trading price per
$1,000 principal amount of notes for each day of such
measurement period was less than 98% of the product of the last
reported sale price of the Companys common stock on such
date and the conversion rate on such date;
|
|
|
|
If, at any time, a change in control occurs or if the Company is
a party to a consolidation, merger, binding share exchange or
transfer or lease of all or substantially all of its assets,
pursuant to which the Companys common stock would be
converted into cash, securities or other assets; or
|
F-15
Horizon Lines,
Inc.
Notes to
Consolidated Financial
Statements (Continued)
|
|
|
|
|
At any time after May 15, 2012 through the fourth scheduled
trading day immediately preceding August 15, 2012.
|
Holders who convert their Notes in connection with a change in
control may be entitled to a make-whole premium in the form of
an increase in the conversion rate. In addition, upon a change
in control, liquidation, dissolution or de-listing, the holders
of the Notes may require the Company to repurchase for cash all
or any portion of their Notes for 100% of the principal amount
plus accrued and unpaid interest. As of December 26, 2010,
none of the conditions allowing holders of the Notes to convert
or requiring the Company to repurchase the Notes had been met.
The Company may not redeem the Notes prior to maturity.
Concurrent with the issuance of the Notes, the Company entered
into note hedge transactions with certain financial institutions
whereby if the Company is required to issue shares of its common
stock upon conversion of the Notes, the Company has the option
to receive up to 8.9 million shares of its common stock
when the price of the Companys common stock is between
$37.13 and $51.41 per share upon conversion, and the Company
sold warrants to the same financial institutions whereby the
financial institutions have the option to receive up to
17.8 million shares of the Companys common stock when
the price of the Companys common stock exceeds $51.41 per
share upon conversion. The separate note hedge and warrant
transactions were structured to reduce the potential future
share dilution associated with the conversion of Notes. The cost
of the note hedge transactions to the Company was approximately
$52.5 million which has been accounted for as an equity
transaction. The Company recorded a $19.1 million income
tax benefit related to the cost of the hedge transaction that
was subsequently fully reserved as part of recording a full
valuation allowance against deferred tax assets. The Company
received proceeds of $11.9 million related to the sale of
the warrants, which has also been classified as equity.
The Notes and the warrants sold in connection with the hedge
transactions will have no impact on diluted earnings per share
until the price of the Companys common stock exceeds the
conversion price (initially $37.13 per share) because the
principal amount of the Notes will be settled in cash upon
conversion. Prior to conversion of the Notes or exercise of the
warrants, the Company will include the effect of the additional
shares that may be issued if its common stock price exceeds the
conversion price, using the treasury stock method. The call
options purchased as part of the note hedge transactions are
anti-dilutive and therefore will have no impact on earnings per
share.
Fair Value of
Financial Instruments
The estimated fair values of the Companys debt as of
December 26, 2010 and December 20, 2009 were
$498.0 million and $478.0 million, respectively. The
fair value of the Notes is based on quoted market prices. The
fair value of the other long-term debt approximates carrying
value.
Contractual maturities of long-term debt obligations are as
follows (in thousands):
|
|
|
|
|
2011
|
|
$
|
18,750
|
|
2012
|
|
|
505,000
|
|
|
|
|
|
|
|
|
$
|
523,750
|
|
|
|
|
|
|
The Company expects it will experience a covenant default under
the indenture related to the Notes. The Company has until
May 21, 2011 to obtain a waiver from the holders of the
Notes. The remedies available to the indenture trustee in the
event of default include acceleration of all principal and
interest payments. In addition, the Senior Credit Facility
contains cross default provisions and certain acceleration
clauses whereby if the maturity of the Notes is accelerated,
maturity of the Senior Credit Facility can also be accelerated.
F-16
Horizon Lines,
Inc.
Notes to
Consolidated Financial
Statements (Continued)
The following table presents the components of the impairment
charges (in thousands):
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Fiscal Years Ended
|
|
|
|
December 26,
|
|
|
December 20,
|
|
|
December 21,
|
|
|
|
2010
|
|
|
2009
|
|
|
2008
|
|
|
Equipment
|
|
$
|
2,655
|
|
|
$
|
|
|
|
$
|
2,738
|
|
Vessels
|
|
|
|
|
|
|
1,867
|
|
|
|
3,292
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total
|
|
$
|
2,655
|
|
|
$
|
1,867
|
|
|
$
|
6,030
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Equipment
During 2010, the Company reviewed its inventory of leased
equipment and determined certain assets were not expected to be
utilized in the foreseeable future. As such, the Company
recorded a charge of $2.7 million related to the impaired
equipment.
During 2008, in response to the continued deterioration in the
Companys shipping volumes, the Company reviewed its
inventory of owned and leased equipment. The company identified
certain of its owned and leased equipment that were not expected
to be employed during the foreseeable future or that would be
returned to the lessor. As a result, the Company recorded a
charge of $2.7 million related to the impaired equipment.
Vessels
During 2006, the Company completed a series of agreements to
charter five new non-Jones Act qualified container vessels (the
new vessels). These new vessels were deployed in the
Companys trade routes between the U.S. west coast and
Asia and Guam. As a result of the deployment of the new vessels,
five of the Companys Jones Act qualified vessels became
spare vessels available for seasonal and dry-dock needs and to
respond to potential new revenue opportunities. The Company
maintains one vessel for seasonal deployment in the Alaska
trade, and one dry-dock relief vessel on both the U.S east coast
and U.S. west coast. The remaining two spare vessels were
tested for potential impairment. The fair value of each of the
spare vessels was determined using the scrap value less certain
costs to sell the assets. The carrying value of the vessels was
in excess of the fair value, and as such, during the year ended
December 21, 2008 the Company recorded an impairment charge
of $3.3 million to write down the carrying value of the
vessels to their fair value. During the year ended
December 20, 2009 the Company recorded an additional
write-down of $1.9 million related to its spare vessels.
In an effort to continue to effectively manage costs, during the
fourth quarter of 2010 the Company initiated a plan to reduce
its non-union workforce by at least 10%, or approximately 65
positions. The Company substantially completed the workforce
reduction initiative on January 31, 2011 by eliminating a
total of 64 positions, including 35 existing and 29 open
positions. A restructuring charge of $2.1 million related
to this reduction in workforce has been recorded during the year
ended December 26, 2010.
F-17
Horizon Lines,
Inc.
Notes to
Consolidated Financial
Statements (Continued)
The following table presents the restructuring reserves at
December 26, 2010, as well as activity during the year (in
thousands):
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Balance at
|
|
|
|
|
|
|
|
|
Balance at
|
|
|
|
December 20,
|
|
|
|
|
|
|
|
|
December 26,
|
|
|
|
2009
|
|
|
Provision
|
|
|
Payments
|
|
|
2010
|
|
|
Personnel related costs
|
|
$
|
150
|
|
|
$
|
2,047
|
|
|
$
|
(165
|
)
|
|
$
|
2,032
|
|
Other associated costs
|
|
|
|
|
|
|
10
|
|
|
|
|
|
|
|
10
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total
|
|
$
|
150
|
|
|
$
|
2,057
|
|
|
$
|
(165
|
)
|
|
$
|
2,042
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
In the consolidated balance sheet, the current portion of the
reserve for restructuring costs of $1.8 million is recorded
in other accrued liabilities and the non-current portion of
$0.2 million is recorded in other non-current liabilities.
|
|
6.
|
Discontinued
Operations
|
During the 4th quarter of 2010, the Company began a review
of strategic alternatives for its logistics operations. It was
determined that as a result of several factors, including:
1) the historical operating losses within the logistics
operations, 2) the projected continuation of operating
losses, and 3) focus on the recently commenced
international shipping activities, the Company would begin
exploring the sale of its logistics operations. It is expected
the entire component comprising the logistics operations will be
sold and that the current logistics customers will no longer be
customers of the Company. As such, there will not be any future
cash inflows received from these logistics customers and no cash
outflows related to these operations. In addition, the Company
is not expected to have any significant continuing involvement
in the logistics operations after the sale is consummated.
The following table includes the major classes of assets that
have been presented as Assets of discontinued operations and
Liabilities of discontinued operations in the Consolidated
Balance Sheets (in thousands):
|
|
|
|
|
|
|
|
|
|
|
December 26,
|
|
|
December 20,
|
|
|
|
2010
|
|
|
2009
|
|
|
Accounts receivable, net of allowance
|
|
$
|
10,628
|
|
|
$
|
8,467
|
|
Property and equipment, net
|
|
|
721
|
|
|
|
814
|
|
Intangible assets, net
|
|
|
|
|
|
|
3,465
|
|
Deferred tax asset
|
|
|
648
|
|
|
|
303
|
|
Other assets
|
|
|
178
|
|
|
|
179
|
|
|
|
|
|
|
|
|
|
|
Subtotal
|
|
|
12,175
|
|
|
|
13,228
|
|
Valuation allowance
|
|
|
(4,983
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total current assets of discontinued operations
|
|
$
|
7,192
|
|
|
$
|
13,228
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
December 26,
|
|
|
December 20,
|
|
|
|
2010
|
|
|
2009
|
|
|
Accounts payable
|
|
$
|
890
|
|
|
$
|
885
|
|
Other accrued liabilities
|
|
|
2,809
|
|
|
|
5,714
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total current liabilities of discontinued operations
|
|
$
|
3,699
|
|
|
$
|
6,599
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
F-18
Horizon Lines,
Inc.
Notes to
Consolidated Financial
Statements (Continued)
The following table presents summarized financial information
for the discontinued operations included in the Consolidated
Statements of Operations (in thousands):
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Fiscal Years Ended
|
|
|
|
December 26,
|
|
|
December 20,
|
|
|
December 21,
|
|
|
|
2010
|
|
|
2009
|
|
|
2008
|
|
|
Operating revenue
|
|
$
|
52,157
|
|
|
$
|
34,266
|
|
|
$
|
33,281
|
|
Operating loss
|
|
|
(11,974
|
)
|
|
|
(5,087
|
)
|
|
|
(20,521
|
)
|
Net loss
|
|
|
(11,670
|
)
|
|
|
(4,865
|
)
|
|
|
(12,946
|
)
|
The following table presents summarized cash flow information
for the discontinued operations included in the Consolidated
Statements of Cash Flows (in thousands):
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Fiscal Years Ended
|
|
|
|
December 26,
|
|
|
December 20,
|
|
|
December 21,
|
|
|
|
2010
|
|
|
2009
|
|
|
2008
|
|
|
Cash (used in) provided by operating activities
|
|
$
|
(7,999
|
)
|
|
$
|
(3,583
|
)
|
|
$
|
1,011
|
|
Cash used in investing activities
|
|
|
(238
|
)
|
|
|
(119
|
)
|
|
|
(708
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Change in cash from discontinued operations
|
|
$
|
(8,237
|
)
|
|
$
|
(3,702
|
)
|
|
$
|
303
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
7.
|
Property and
Equipment
|
Property and equipment consist of the following (in thousands):
|
|
|
|
|
|
|
|
|
|
|
December 26,
|
|
|
December 20,
|
|
|
|
2010
|
|
|
2009
|
|
|
Vessels
|
|
$
|
152,641
|
|
|
$
|
148,823
|
|
Containers
|
|
|
37,212
|
|
|
|
24,035
|
|
Chassis
|
|
|
14,524
|
|
|
|
14,599
|
|
Cranes
|
|
|
37,294
|
|
|
|
36,965
|
|
Machinery & equipment
|
|
|
29,756
|
|
|
|
28,379
|
|
Facilities & land improvement
|
|
|
26,368
|
|
|
|
23,990
|
|
Software
|
|
|
23,837
|
|
|
|
23,112
|
|
Construction in progress
|
|
|
25,850
|
|
|
|
22,529
|
|
|
|
|
|
|
|
|
|
|
Total property and equipment
|
|
|
347,482
|
|
|
|
322,432
|
|
Accumulated depreciation
|
|
|
(152,825
|
)
|
|
|
(129,808
|
)
|
|
|
|
|
|
|
|
|
|
Property and equipment, net
|
|
$
|
194,657
|
|
|
$
|
192,624
|
|
|
|
|
|
|
|
|
|
|
As of December 26, 2010, construction in progress includes
$18.2 million of payments for three new cranes. These
cranes were initially purchased for use in the Companys
Anchorage, Alaska terminal and were expected to be installed and
become fully operational in late 2010. However, the Port of
Anchorage Intermodal Expansion Project is encountering delays
that could continue until 2014 or beyond. As such, the Company
is currently evaluating its options for these cranes, which may
include marketing them for sale or deploying them in the
Companys other terminal locations. During the years ended
December 26, 2010 and December 20, 2009, the Company
capitalized interest totaling $0.6 million and
$0.4 million, respectively.
The majority of depreciation expense is related to vessels.
Depreciation expense related to vessels was $9.5 million,
$9.2 million and $12.3 million for the years ended
December 26, 2010, December 20, 2009 and
December 21, 2008, respectively.
F-19
Horizon Lines,
Inc.
Notes to
Consolidated Financial
Statements (Continued)
Depreciation expense related to capitalized software was
$2.1 million, $2.3 million and $1.5 million for
the years ended December 26, 2010, December 20, 2009
and December 21, 2008, respectively.
In connection with the expiration of our equipment sharing
agreements, the Company increased its container fleet in
preparation of the launch of our FSX service. As part of this
increase, the Company entered into a capital lease for
approximately 1,400 containers and recorded assets related to
these new containers of approximately $9.3 million.
Intangible assets consist of the following (in thousands):
|
|
|
|
|
|
|
|
|
|
|
December 26,
|
|
|
December 20,
|
|
|
|
2010
|
|
|
2009
|
|
|
Customer contracts/relationships
|
|
$
|
141,430
|
|
|
$
|
141,430
|
|
Trademarks
|
|
|
63,800
|
|
|
|
63,800
|
|
Deferred financing costs
|
|
|
14,906
|
|
|
|
14,831
|
|
|
|
|
|
|
|
|
|
|
Total intangibles with definite lives
|
|
|
220,136
|
|
|
|
220,061
|
|
Less: accumulated amortization
|
|
|
(139,312
|
)
|
|
|
(115,202
|
)
|
|
|
|
|
|
|
|
|
|
Net intangibles with definite lives
|
|
|
80,824
|
|
|
|
104,859
|
|
Goodwill
|
|
|
314,149
|
|
|
|
314,149
|
|
|
|
|
|
|
|
|
|
|
Total intangible assets, net
|
|
$
|
394,973
|
|
|
$
|
419,008
|
|
|
|
|
|
|
|
|
|
|
Estimated aggregate amortization expense for each of the
succeeding five fiscal years is as follows (in thousands):
|
|
|
|
|
|
Fiscal Year Ending
|
|
|
|
|
2011
|
|
$
|
23,567
|
|
2012
|
|
|
19,501
|
|
2013
|
|
|
12,066
|
|
2014
|
|
|
6,478
|
|
2015
|
|
|
4,253
|
|
|
|
9.
|
Other Accrued
Liabilities
|
Other accrued liabilities consist of the following (in
thousands):
|
|
|
|
|
|
|
|
|
|
|
December 26,
|
|
|
December 20,
|
|
|
|
2010
|
|
|
2009
|
|
|
Vessel operations
|
|
$
|
20,147
|
|
|
$
|
17,922
|
|
Payroll and employee benefits
|
|
|
13,996
|
|
|
|
16,348
|
|
Marine operations
|
|
|
8,777
|
|
|
|
10,668
|
|
Terminal operations
|
|
|
11,863
|
|
|
|
8,768
|
|
Fuel
|
|
|
8,032
|
|
|
|
9,418
|
|
Interest
|
|
|
7,344
|
|
|
|
7,298
|
|
Legal settlements
|
|
|
12,767
|
|
|
|
15,000
|
|
Restructuring
|
|
|
1,853
|
|
|
|
150
|
|
Other liabilities
|
|
|
23,720
|
|
|
|
19,187
|
|
|
|
|
|
|
|
|
|
|
Total other accrued liabilities
|
|
$
|
108,499
|
|
|
$
|
104,759
|
|
|
|
|
|
|
|
|
|
|
F-20
Horizon Lines,
Inc.
Notes to
Consolidated Financial
Statements (Continued)
|
|
10.
|
Fair Value
Measurement
|
U.S. accounting standards establish a fair value hierarchy
that prioritizes the inputs used to measure fair value. The
hierarchy gives the highest priority to unadjusted quoted prices
in active markets for identical assets or liabilities
(Level 1 measurement) and the lowest priority to
unobservable inputs (Level 3 measurement). This hierarchy
requires entities to maximize the use of observable inputs and
minimize the use of unobservable inputs when determining fair
value. The three levels of inputs used to measure fair value are
as follows:
|
|
|
|
Level 1:
|
Observable inputs such as quoted prices in active markets
|
|
|
Level 2:
|
Inputs other than the quoted prices in active markets that are
observable either directly or indirectly
|
|
|
Level 3:
|
Unobservable inputs in which there is little or no market data,
which requires the Company to develop its own assumptions
|
On a recurring basis, the Company measures the market value of
its pension plan assets at their estimated fair value. The fair
value of the pension plan assets is determined by using quoted
market prices in active markets.
On a recurring basis, the Company measures the interest rate
swap at its estimated fair value. The fair value of the swap is
determined using the market standard methodology of netting the
discounted future fixed cash payments (or receipts) and the
discounted expected variable cash receipts (or payments). The
variable cash receipts (or payments) are based on an expectation
of future interest rates (forward curves) derived from
observable market interest rate curves. The unrealized loss on
the interest rate swap of $3.2 million is classified within
Level 2 of the fair value hierarchy.
No other assets or liabilities are measured at fair value under
the hierarchy as of December 26, 2010.
F-21
Horizon Lines,
Inc.
Notes to
Consolidated Financial
Statements (Continued)
|
|
11.
|
Net (Loss) Income
Per Common Share
|
Basic net (loss) income per share is computed by dividing net
(loss) income by the weighted daily average number of shares of
common stock outstanding during the period. Diluted net (loss)
income per share is based upon the weighted daily average number
of shares of common stock outstanding for the period plus
dilutive potential common shares, including stock options using
the treasury-stock method and from convertible stock using the
if converted method (in thousands, except per share
amounts):
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Fiscal Years Ended
|
|
|
|
December 26,
|
|
|
December 20,
|
|
|
December 21,
|
|
|
|
2010
|
|
|
2009
|
|
|
2008
|
|
|
Numerator:
|
|
|
|
|
|
|
|
|
|
|
|
|
(Loss) income from continuing operations
|
|
$
|
(46,299
|
)
|
|
$
|
(26,407
|
)
|
|
$
|
10,353
|
|
Loss from discontinued operations
|
|
|
(11,670
|
)
|
|
|
(4,865
|
)
|
|
|
(12,946
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net loss
|
|
$
|
(57,969
|
)
|
|
$
|
(31,272
|
)
|
|
$
|
(2,593
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Denominator:
|
|
|
|
|
|
|
|
|
|
|
|
|
Denominator for basic loss per common share:
|
|
|
|
|
|
|
|
|
|
|
|
|
Weighted average shares outstanding
|
|
|
30,789
|
|
|
|
30,451
|
|
|
|
30,279
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Effect of dilutive securities:
|
|
|
|
|
|
|
|
|
|
|
|
|
Stock-based compensation
|
|
|
|
|
|
|
|
|
|
|
244
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Denominator for diluted net loss per common share
|
|
|
30,789
|
|
|
|
30,451
|
|
|
|
30,523
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Basic net (loss) income per common share from continuing
operations
|
|
$
|
(1.50
|
)
|
|
$
|
(0.87
|
)
|
|
$
|
0.34
|
|
Basic net loss per common share from discontinued operations
|
|
|
(0.38
|
)
|
|
|
(0.16
|
)
|
|
|
(0.43
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Basic net loss per common share
|
|
$
|
(1.88
|
)
|
|
$
|
(1.03
|
)
|
|
$
|
(0.09
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Diluted net (loss) income per common share from continuing
operations
|
|
$
|
(1.50
|
)
|
|
$
|
(0.87
|
)
|
|
$
|
0.34
|
|
Diluted net loss per common share from discontinued operations
|
|
|
(0.38
|
)
|
|
|
(0.16
|
)
|
|
|
(0.43
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Diluted net loss per common share
|
|
$
|
(1.88
|
)
|
|
$
|
(1.03
|
)
|
|
$
|
(0.09
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Certain of the Companys unvested stock-based awards
contain non-forfeitable rights to dividends. As a result, a
total of 145 thousand, 221 thousand, and 316 thousand shares
have been included in the denominator for basic net (loss)
income per share for these participating securities during the
years ended December 26, 2010, December 20, 2009 and
December 21, 2008, respectively. In addition, a total of
314 thousand, 346 thousand, and 245 thousand shares have been
excluded from the denominator for diluted net (loss) income per
common share during the years ended December 26, 2010,
December 20, 2009, and December 21, 2008,
respectively, as the impact would be anti-dilutive.
F-22
Horizon Lines,
Inc.
Notes to
Consolidated Financial
Statements (Continued)
|
|
12.
|
Derivative
Financial Instruments
|
On March 31, 2008, the Company entered into an Interest
Rate Swap Agreement (the swap) with Wachovia Bank,
National Association, a current subsidiary of Wells
Fargo & Co., (Wachovia) in the notional
amount of $121.9 million. The swap expires on
August 8, 2012. Under the swap, the Company and Wachovia
have agreed to exchange interest payments on the notional amount
on the last business day of each calendar quarter. The Company
has agreed to pay a 3.02% fixed interest rate, and Wachovia has
agreed to pay a floating interest rate equal to the three-month
LIBOR rate. The critical terms of the swap agreement and the
term loan are the same, including the notional amounts, interest
rate reset dates, maturity dates and underlying market indices.
The purpose of entering into this swap is to protect the Company
against the risk of rising interest rates by effectively fixing
the base interest rate payable related to its term loan.
Interest rate differentials paid or received under the swap are
recognized as adjustments to interest expense. The Company does
not hold or issue interest rate swap agreements for trading
purposes. In the event that the counter-party fails to meet the
terms of the interest rate swap agreement, the Companys
exposure is limited to the interest rate differential.
The swap has been designated as a cash flow hedge of the
variability of the cash flows due to changes in LIBOR and has
been deemed to be highly effective. Accordingly, the Company
records the fair value of the swap as an asset or liability on
its consolidated balance sheet, and any unrealized gain or loss
is included in accumulated other comprehensive income (loss). As
of December 26, 2010, the Company recorded a liability of
$3.2 million, of which $0.6 million is included in
other accrued liabilities and $2.6 million is included in
other long-term liabilities in the accompanying consolidated
balance sheet. The Company also recorded $1.1 million,
$0.2 million and $3.9 million in other comprehensive
loss for the years ended December 26, 2010,
December 20, 2009 and December 21, 2008, respectively.
No hedge ineffectiveness was recorded during the years ended
December 26, 2010, December 20, 2009 or
December 21, 2008. If the hedge was deemed ineffective, or
extinguished by either counterparty, the accumulated losses
remaining in other comprehensive loss would be fully recorded in
interest expense during the period.
The Company leases certain equipment and facilities under
operating lease agreements. Non-cancelable, long-term leases
generally include provisions for maintenance, options to
purchase at fair value and to extend the terms. Rent expense
under operating lease agreements totaled $107.3 million,
$104.2 million and $106.9 million for the years ended
December 26, 2010, December 20, 2009 and
December 21, 2008, respectively.
F-23
Horizon Lines,
Inc.
Notes to
Consolidated Financial
Statements (Continued)
Future minimum lease obligations at December 26, 2010 are
as follows (in thousands):
|
|
|
|
|
|
|
|
|
|
|
Non-Cancelable
|
|
|
|
|
Fiscal Year Ending
|
|
Operating
|
|
|
Capital
|
|
December
|
|
Leases
|
|
|
Lease
|
|
|
2011
|
|
$
|
100,373
|
|
|
$
|
2,486
|
|
2012
|
|
|
103,057
|
|
|
|
2,326
|
|
2013
|
|
|
108,304
|
|
|
|
1,527
|
|
2014
|
|
|
127,948
|
|
|
|
1,527
|
|
2015
|
|
|
75,363
|
|
|
|
1,527
|
|
Thereafter
|
|
|
143,035
|
|
|
|
2,925
|
|
|
|
|
|
|
|
|
|
|
Total future minimum lease obligation
|
|
$
|
658,080
|
|
|
|
12,318
|
|
|
|
|
|
|
|
|
|
|
Less: amounts representing interest
|
|
|
|
|
|
|
3,159
|
|
|
|
|
|
|
|
|
|
|
Present value of future minimum lease obligation
|
|
|
|
|
|
|
9,159
|
|
Current portion of capital lease obligation
|
|
|
|
|
|
|
1,629
|
|
|
|
|
|
|
|
|
|
|
Long-term portion of capital lease obligation
|
|
|
|
|
|
$
|
7,530
|
|
|
|
|
|
|
|
|
|
|
|
|
14.
|
Employee Benefit
Plans
|
Savings
Plans
The Company provides a 401(k) Savings Plan for substantially all
of its employees who are not part of collective bargaining
agreements. Under provisions of the savings plan, an employee is
immediately vested with respect to Company contributions.
Historically, the Company has matched 100% of employee
contributions up to 6% of qualified compensation. However,
during the fourth quarter of 2009, the Company reduced its match
to 50% of employee contributions up to 6% of qualified
compensation. The cost for this benefit totaled
$1.1 million, $2.1 million and $2.5 million for
the years ended December 26, 2010, December 20, 2009
and December 21, 2008, respectively. The Company also
administers a 401(k) plan for certain union employees with no
Company match.
Pension and
Post-Retirement Benefit Plans
The Company provides pension and post-retirement benefit plans
for certain of its union workers. Each of the plans is described
in more detail below. A decline in the value of assets held by
these plans, caused by negative performance of the investments
in the financial markets, and lower discount rates due to
falling interest rates, has resulted in higher contributions to
these plans.
Pension
Plans
The Company sponsors a defined benefit plan covering
approximately 30 union employees as of December 26, 2010.
The plan provides for retirement benefits based only upon years
of service. Employees whose terms and conditions of employment
are subject to or covered by the collective bargaining agreement
between Horizon Lines and the International
Longshore & Warehouse Union Local 142 are eligible to
participate once they have completed one year of service.
Contributions to the plan are based on the projected unit credit
actuarial method and are limited to the amounts that are
currently deductible for income tax purposes. The Company
recorded net periodic benefit costs of $0.7 million,
$0.8 million, and $0.4 million during the years ended
December 26, 2010, December 20, 2009 and
December 21, 2008, respectively. The plan was underfunded
by $1.3 million and $1.1 million at December 26,
2010 and December 20, 2009, respectively.
F-24
Horizon Lines,
Inc.
Notes to
Consolidated Financial
Statements (Continued)
The HSI pension plan covering approximately 50 salaried
employees was frozen to new entrants as of December 31,
2005. Contributions to the plan are based on the projected unit
credit actuarial method and are limited to the amounts that are
currently deductible for income tax purposes. The Company
recorded net periodic benefit costs of $0.2 million,
$0.3 million and $0.1 million during the years ended
December 26, 2010, December 20, 2009 and
December 21, 2008, respectively. The plan was underfunded
by $2.5 million and $2.6 million at December 26,
2010 and December 20, 2009, respectively.
Post-retirement
Benefit Plans
In addition to providing pension benefits, the Company provides
certain healthcare (both medical and dental) and life insurance
benefits for eligible retired members (post-retirement
benefits). For eligible employees hired on or before
July 1, 1996, the healthcare plan provides for
post-retirement health coverage for an employee who, immediately
preceding
his/her
retirement date, was an active participant in the retirement
plan and has attained age 55 as of
his/her
retirement date. For eligible employees hired after July 1,
1996, the plan provides post-retirement health coverage for an
employee who, immediately preceding
his/her
retirement date, was an active participant in the retirement
plan and has attained a combination of age and service totaling
75 years or more as of
his/her
retirement date. The net periodic benefit costs related to the
post-retirement benefits were $0.5 million,
$0.8 million, and $0.6 million during the years ended
December 26, 2010, December 20, 2009, and
December 21, 2008, respectively. The post-retirement
benefit plan was underfunded by $5.1 million and
$3.5 million at December 26, 2010 and
December 20, 2009, respectively.
Effective June 25, 2007, the HSI plan provides for
post-retirement medical, dental and life insurance benefits for
salaried employees who had attained age 55 and completed
20 years of service as of December 31, 2005. Any
salaried employee already receiving post-retirement medical
coverage as of June 25, 2007 will continue to be covered by
the plan. For eligible union employees hired on or before
July 1, 1996, the healthcare plan provides for
post-retirement medical coverage for an employee who,
immediately preceding
his/her
retirement date, was an active participant in the retirement
plan and has attained age 55 as of
his/her
retirement date. For eligible union employees hired after
July 1, 1996, the plan provides post-retirement health
coverage for an employee who, immediately preceding
his/her
retirement date, was an active participant in the retirement
plan and has attained age 55 and has a combination of age
and service totaling 75 years or more as of
his/her
retirement date. The Company recorded net periodic benefit costs
of $0.4 million during each of the year ended
December 26, 2010 and December 20, 2009, and
$0.3 million during the year ended December 21, 2008.
The plan was underfunded by $5.7 million and
$5.4 million at December 26, 2010 and
December 20, 2009, respectively.
F-25
Horizon Lines,
Inc.
Notes to
Consolidated Financial
Statements (Continued)
Obligations
and Funded Status
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Pension
|
|
|
Post-retirement
|
|
|
|
Plans
|
|
|
Benefit Plans
|
|
|
|
2010
|
|
|
2009
|
|
|
2010
|
|
|
2009
|
|
|
|
(In thousands)
|
|
Change in Benefit Obligation
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Beginning obligations
|
|
$
|
(10,771
|
)
|
|
$
|
(11,788
|
)
|
|
$
|
(8,925
|
)
|
|
$
|
(10,123
|
)
|
Service cost
|
|
|
(396
|
)
|
|
|
(356
|
)
|
|
|
(312
|
)
|
|
|
(562
|
)
|
Interest cost
|
|
|
(675
|
)
|
|
|
(638
|
)
|
|
|
(557
|
)
|
|
|
(545
|
)
|
Amendments
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Actuarial (loss) gain
|
|
|
(464
|
)
|
|
|
1,648
|
|
|
|
(1,223
|
)
|
|
|
1,877
|
|
Benefits paid
|
|
|
392
|
|
|
|
363
|
|
|
|
229
|
|
|
|
428
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Ending obligations
|
|
|
(11,914
|
)
|
|
|
(10,771
|
)
|
|
|
(10,788
|
)
|
|
|
(8,925
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Change in Plans Assets
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Beginning fair value
|
|
|
7,064
|
|
|
|
4,700
|
|
|
|
|
|
|
|
|
|
Actual return on plans assets
|
|
|
786
|
|
|
|
1,212
|
|
|
|
|
|
|
|
|
|
Employer contributions
|
|
|
670
|
|
|
|
1,514
|
|
|
|
|
|
|
|
|
|
Benefits paid
|
|
|
(392
|
)
|
|
|
(362
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Ending fair value
|
|
|
8,128
|
|
|
|
7,064
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Funded status at end of year
|
|
$
|
(3,786
|
)
|
|
$
|
(3,707
|
)
|
|
$
|
(10,788
|
)
|
|
$
|
(8,925
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net Periodic
Benefit Cost
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Post-retirement
|
|
|
|
Pension Plans
|
|
|
Benefit Plans
|
|
|
|
2010
|
|
|
2009
|
|
|
2010
|
|
|
2009
|
|
|
|
(In thousands)
|
|
Service cost
|
|
$
|
396
|
|
|
$
|
356
|
|
|
$
|
312
|
|
|
$
|
562
|
|
Interest cost
|
|
|
675
|
|
|
|
638
|
|
|
|
558
|
|
|
|
545
|
|
Expected return on plan assets
|
|
|
(526
|
)
|
|
|
(420
|
)
|
|
|
|
|
|
|
|
|
Amortization of prior service cost
|
|
|
255
|
|
|
|
255
|
|
|
|
103
|
|
|
|
103
|
|
Amortization of transition obligation
|
|
|
102
|
|
|
|
102
|
|
|
|
|
|
|
|
|
|
Amortization of (gain) loss
|
|
|
(23
|
)
|
|
|
125
|
|
|
|
(26
|
)
|
|
|
31
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net periodic benefit cost
|
|
$
|
879
|
|
|
$
|
1,056
|
|
|
$
|
947
|
|
|
$
|
1,241
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
F-26
Horizon Lines,
Inc.
Notes to
Consolidated Financial
Statements (Continued)
Rate
Assumptions
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Pension
|
|
|
|
|
Benefits
|
|
Post-retirement Benefits
|
|
|
2010
|
|
2009
|
|
2010
|
|
2009
|
Weighted-average discount rate used in determining net periodic
cost
|
|
|
6.4
|
%
|
|
|
5.5
|
%
|
|
|
6.4
|
%
|
|
|
5.5
|
%
|
Weighted-average expected long-term rate of return on plan
assets in determination of net periodic costs
|
|
|
7.5
|
%
|
|
|
7.5
|
%
|
|
|
0.0
|
%
|
|
|
0.0
|
%
|
Weighted-average rate of compensation increase(1)
|
|
|
0.0
|
%
|
|
|
0.0
|
%
|
|
|
0.0
|
%
|
|
|
0.0
|
%
|
Weighted-average discount rate used in determination of
projected benefit obligation
|
|
|
6.1
|
%
|
|
|
6.4
|
%
|
|
|
6.1
|
%
|
|
|
6.4
|
%
|
Assumed health care cost trend:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Initial trend
|
|
|
N/A
|
|
|
|
N/A
|
|
|
|
9.00
|
%
|
|
|
9.00
|
%
|
Ultimate trend rate
|
|
|
N/A
|
|
|
|
N/A
|
|
|
|
5.00
|
%
|
|
|
5.00
|
%
|
|
|
|
(1) |
|
The defined benefit plan benefit payments are not based on
compensation, but rather on years of service. |
For every 1% increase in the assumed health care cost trend
rate, service and interest cost will increase $0.2 million
and the Companys benefit obligation will increase
$1.6 million. For every 1% decrease in the assumed health
care cost trend rate, service and interest cost will decrease
$0.1 million and the Companys benefit obligation will
decrease $1.3 million. Expected Company contributions
during 2011 total $1.3 million, all of which is related to
the pension plan. The following benefit payments, which reflect
expected future service, as appropriate, are expected to be paid
(in thousands):
|
|
|
|
|
|
|
|
|
|
|
Pension
|
|
|
Post-retirement
|
|
Fiscal Year Ending
|
|
Benefits
|
|
|
Benefits
|
|
|
2011
|
|
$
|
471
|
|
|
$
|
423
|
|
2012
|
|
|
554
|
|
|
|
463
|
|
2013
|
|
|
581
|
|
|
|
474
|
|
2014
|
|
|
604
|
|
|
|
487
|
|
2015
|
|
|
629
|
|
|
|
507
|
|
2016-2020
|
|
|
4,190
|
|
|
|
3,029
|
|
|
|
|
|
|
|
|
|
|
|
|
$
|
7,029
|
|
|
$
|
5,383
|
|
|
|
|
|
|
|
|
|
|
The Companys pension plans investment policy and
weighted average asset allocations at December 26, 2010 and
December 20, 2009 by asset category are as follows:
|
|
|
|
|
|
|
|
|
|
|
Pension Benefits at
|
|
|
Pension Benefits at
|
|
|
|
December 26,
|
|
|
December 20,
|
|
Asset Category
|
|
2010
|
|
|
2009
|
|
|
Cash
|
|
|
2
|
%
|
|
|
1
|
%
|
Equity securities
|
|
|
58
|
%
|
|
|
63
|
%
|
Debt securities
|
|
|
40
|
%
|
|
|
36
|
%
|
|
|
|
|
|
|
|
|
|
|
|
|
100
|
%
|
|
|
100
|
%
|
|
|
|
|
|
|
|
|
|
The objective of the pension plan investment policy is to grow
assets in relation to liabilities, while prudently managing the
risk of a decrease in the pension plans assets. The
pension plan
F-27
Horizon Lines,
Inc.
Notes to
Consolidated Financial
Statements (Continued)
management committee has established a target investment mix
with upper and lower limits for investments in equities,
fixed-income and other appropriate investments. Assets will be
re-allocated among asset classes from
time-to-time
to maintain the target investment mix. The committee has
established a target investment mix of 65% equities and 35%
fixed-income for the plans.
The expected return on plan assets is based on the asset
allocation mix and historical return, taking into account
current and expected market conditions.
Other
Plans
Under collective bargaining agreements, the Company participates
in a number of union-sponsored, multi-employer benefit plans.
Payments to these plans are made as part of aggregate
assessments generally based on hours worked, tonnage moved, or a
combination thereof. Expense for these plans is recognized as
contributions are funded. The Company made contributions of
$11.6 million, $10.4 million, and $9.9 million
during the years ended December 26, 2010, December 20,
2009, and December 21, 2008, respectively. In addition to
the higher contributions as a result of negative investment
performance and lower discount rates due to falling interest
rates, the Company has made additional payments related to
assessments as a result of lower container volumes and increased
benefit costs. If the Company exits these markets, it may be
required to pay a potential withdrawal liability if the plans
are underfunded at the time of the withdrawal. Any adjustments
would be recorded when it is probable that a liability exists
and it is determined that markets will be exited.
|
|
15.
|
Stock-Based
Compensation
|
Stock-based compensation costs are measured at the grant date,
based on the estimated fair value of the award, and are
recognized as an expense in the income statement over the
requisite service period. Compensation costs related to stock
options and restricted shares granted under the Amended and
Restated Equity Incentive Plan (the Plan), the 2009
Incentive Compensation Plan (the 2009 Plan), and
purchases under the Employee Stock Purchase Plan, as amended
(ESPP) are recognized using the straight-line
method, net of estimated forfeitures. Stock options and
restricted shares granted to employees under the Plan and the
2009 Plan typically cliff vest and become fully exercisable on
the third anniversary of the grant date, provided the employee
who was granted such options/restricted shares is continuously
employed by the Company or its subsidiaries through such date,
and provided any performance based criteria, if any, are met. In
addition, recipients who retire from the Company and meet
certain age and length of service criteria are typically
entitled to proportionate vesting.
The following compensation costs are included within selling,
general, and administrative expenses on the condensed
consolidated statements of income (in thousands):
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Fiscal Years Ended
|
|
|
|
December 26,
|
|
|
December 20,
|
|
|
December 21,
|
|
|
|
2010
|
|
|
2009
|
|
|
2008
|
|
|
Stock options
|
|
$
|
429
|
|
|
$
|
1,223
|
|
|
$
|
1,585
|
|
Restricted stock
|
|
|
1,550
|
|
|
|
1,743
|
|
|
|
1,779
|
|
Employee stock purchase plan
|
|
|
143
|
|
|
|
130
|
|
|
|
287
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total
|
|
$
|
2,122
|
|
|
$
|
3,096
|
|
|
$
|
3,651
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
The Company recognized deferred tax assets related to
stock-based compensation of $0.1 million, $0.1 million
and $1.1 million during the fiscal years ended
December 26, 2010, December 20, 2009 and
December 21, 2008, respectively.
F-28
Horizon Lines,
Inc.
Notes to
Consolidated Financial
Statements (Continued)
Stock
Options
The Company maintains a stock plan for the grant of stock
options and restricted stock awards to key employees of the
Company. Under the Plan, up to an aggregate of
3,088,668 shares of common stock may be issued, of which,
650,343 shares are available for future issuance as of
December 26, 2010. Under the 2009 Plan, up to an aggregate
of 1,000,000 shares of common stock may be issued, of
which, 770,717 shares are available for future issuance as
of December 26, 2010. Stock options granted under the plan
have been granted at an option price equal to the closing market
value of the stock on the date of the grant. Options granted
under this plan have
10-year
contractual terms and typically become exercisable after one or
three years after the grant date, subject to continuous service
with the Company. The Compensation Committee of the Board of
Directors of the Company (the Board of Directors)
approves the grants of nonqualified stock options by the
Company, pursuant to the Companys Amended and Restated
Equity Incentive Plan. These options are granted on such
approval date.
The weighted average grant date fair value of options granted
during 2008 was $3.97. A total of 261,036 shares vested
during 2010. The Company estimates the fair value of each stock
option on the date of grant using a Black-Scholes option-pricing
model, applying the following assumptions, and amortizes the
expense over the options vesting period using the
straight-line attribution approach:
|
|
|
|
|
2008
|
|
Expected dividend yield
|
|
3.4%-4.7%
|
Expected stock price volatility
|
|
33.3%-35.7%
|
Weighted average risk-free interest rate
|
|
3.44%-3.69%
|
Expected life of options (years)
|
|
6.5
|
Significant assumptions used to estimate the fair value of the
share-based compensation awards are as follows:
Expected Life: The Company determined the
expected life of the options utilizing the short-cut method due
to the lack of historical evidence regarding employees
expected exercise behavior. Under this approach, the expected
term is presumed to be the mid-point between the vesting date
and the end of the contractual term.
Expected Volatility: Due to the relatively
short period of time since our stock became publicly traded, the
Company bases its estimates of stock price volatility on the
average of (i) our historical stock price over the period
in which it has been publicly traded and (ii) historical
volatility of similar entities commensurate with the expected
term of the stock options.
As of December 26, 2010, there was $0.1 million in
unrecognized compensation costs related to options granted under
the Plan, which is expected to be recognized over a weighted
average period of 0.4 years.
F-29
Horizon Lines,
Inc.
Notes to
Consolidated Financial
Statements (Continued)
A summary of option activity for the fiscal year 2010 under the
Companys stock plan is presented below:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Weighted-
|
|
|
|
|
|
|
|
|
|
Weighted-
|
|
|
Average
|
|
|
Aggregate
|
|
|
|
|
|
|
Average
|
|
|
Remaining
|
|
|
Intrinsic
|
|
|
|
Number of
|
|
|
Exercise
|
|
|
Contractual
|
|
|
Value
|
|
Options
|
|
Shares
|
|
|
Price
|
|
|
Term (Years)
|
|
|
(000s)
|
|
|
Outstanding at December 20, 2009
|
|
|
1,515,190
|
|
|
|
15.77
|
|
|
|
6.68
|
|
|
$
|
|
|
Granted
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Exercised
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Forfeited
|
|
|
(13,500
|
)
|
|
|
16.60
|
|
|
|
|
|
|
|
|
|
Expired
|
|
|
(63,977
|
)
|
|
|
13.65
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Outstanding at December 26, 2010
|
|
|
1,437,713
|
|
|
$
|
15.78
|
|
|
|
5.68
|
|
|
$
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Vested or expected to vest at December 26, 2010
|
|
|
1,436,033
|
|
|
$
|
15.79
|
|
|
|
5.68
|
|
|
$
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Exercisable at December 26, 2010
|
|
|
1,274,713
|
|
|
$
|
15.97
|
|
|
|
5.47
|
|
|
$
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Restricted
Stock
On March 15, 2010, the Company granted a total of
482,000 shares of restricted stock to certain employees of
the Company and its subsidiaries. The grant date fair value of
the restricted shares was $4.92 per share. Of the
482,000 shares granted, 210,000 will vest in full on
March 15, 2013. The remaining 272,000 restricted shares
were performance based shares and would have vested in full on
March 15, 2013 provided an earnings before interest and
taxes (EBIT) performance target for the
Companys fiscal year 2010 was met. The EBIT performance
target was not met and the performance based restricted shares
have been forfeited.
On June 1, 2010, the Company granted 30,612 shares of
restricted stock to a newly appointed non-employee member on the
Companys Board of Directors. The grant date fair value of
the restricted shares was $3.92 per share and the shares will
vest in full on June 1, 2013. On June 9, 2010, the
Company granted 30,151 shares of restricted stock to a
newly appointed non-employee member on the Companys Board
of Directors. The grant date fair value of the restricted shares
was $3.98 per share and the shares will vest in full on
June 9, 2013.
A summary of the status of the Companys restricted stock
awards for the fiscal year 2010 is presented below:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Weighted-
|
|
|
|
|
|
|
Average
|
|
|
|
|
|
|
Fair Value
|
|
|
|
Number of
|
|
|
at Grant
|
|
Restricted Shares
|
|
Shares
|
|
|
Date
|
|
|
Nonvested at December 20, 2009
|
|
|
607,221
|
|
|
|
10.21
|
|
Granted
|
|
|
542,763
|
|
|
|
4.81
|
|
Vested
|
|
|
(197,290
|
)
|
|
|
18.14
|
|
Forfeited
|
|
|
(320,989
|
)
|
|
|
5.20
|
|
|
|
|
|
|
|
|
|
|
Nonvested at December 26, 2010
|
|
|
631,705
|
|
|
$
|
5.64
|
|
|
|
|
|
|
|
|
|
|
As of December 26, 2010, there was $1.4 million of
unrecognized compensation expense related to all restricted
stock awards, which is expected to be recognized over a
weighted-average period of 1.6 years.
F-30
Horizon Lines,
Inc.
Notes to
Consolidated Financial
Statements (Continued)
Employee Stock
Purchase Plan
On April 19, 2006, the Board of Directors voted to
implement an employee stock purchase plan (as amended, the
ESPP) effective July 1, 2006. The Company had
reserved 308,866 shares of its common stock for issuance
under the ESPP. On June 2, 2009, the Companys
stockholders approved the 2009 Employee Stock Purchase Plan
(2009 ESPP). The 2009 ESPP reserved an additional
600,000 shares of its common stock for future purchases. As
of December 26, 2010, there were 396,881 shares of
common stock reserved for issuance under the ESPP.
Employees generally are eligible to participate in the 2009 ESPP
if they are employed before the beginning of the applicable
purchase period, are customarily employed more than five months
in a calendar year and more than twenty hours per week, and are
not, and would not become as a result of being granted an option
under the 2009 ESPP, 5% stockholders of the Company or any of
its designated subsidiaries. Participation in the 2009 ESPP will
end automatically upon termination of employment. Eligible
employees are permitted to acquire shares of common stock
through payroll deductions within a percentage range of their
salary as determined by the Companys Compensation
Committee. Such employee purchases are subject to maximum
purchase limitations.
The 2009 ESPP is intended to qualify as an employee stock
purchase plan under Section 423 of the Internal
Revenue Code of 1986, as amended. The ESPP will terminate on
July 1, 2016 unless it terminates earlier under the terms
of the ESPP. The Board of Directors and the Compensation
Committee have the authority to amend, terminate or extend the
term of the ESPP, except that no action may adversely affect any
outstanding options previously granted under the plan and
stockholder approval is required to increase the number of
shares issued or to change the terms of eligibility. The Board
of Directors and the Compensation Committee are able to make
amendments to the ESPP as it determines to be advisable if the
financial accounting treatment for the 2009 ESPP changes from
that in effect on the date the 2009 ESPP was adopted by the
Board of Directors.
The Company estimates the fair value of each share of stock
using a Black-Scholes option-pricing model, applying the
following assumptions, and amortizes the expense over the plan
purchase period using the straight-line attribution approach:
|
|
|
|
|
|
|
2010
|
|
2009
|
|
Expected dividend yield
|
|
3.7%-4.8%
|
|
7.5%-11.8%
|
Expected stock price volatility
|
|
44.7%-71.1%
|
|
83.2%-110.7%
|
Weighted average risk-free interest rate
|
|
0.08%-0.16%
|
|
0.10%-0.17%
|
Expected term (years)
|
|
0.25
|
|
0.25
|
Fair value at grant date
|
|
$1.14-$1.62
|
|
$1.25-$1.57
|
As of December 26, 2010, there was no unrecognized
compensation expense related to the ESPP.
The Company periodically assesses whether it is more likely than
not that it will generate sufficient taxable income to realize
its deferred income tax assets. The ultimate realization of
deferred tax assets is dependent upon the generation of future
taxable income (including the reversal of deferred tax
liabilities) during the periods in which those temporary
differences will become deductible. In making this
determination, the Company considers all available positive and
negative evidence and makes certain assumptions. The Company
considers, among other things, its deferred tax liabilities, the
overall business environment, its historical earnings and losses
and its outlook for future years.
F-31
Horizon Lines,
Inc.
Notes to
Consolidated Financial
Statements (Continued)
During the second quarter of 2009, the Company determined that
it was unclear as to the timing of when it will generate
sufficient taxable income to realize its deferred tax assets.
Accordingly, the Company recorded a valuation allowance against
our deferred tax assets. The valuation allowance is reviewed
quarterly and will be maintained until sufficient positive
evidence exists to support the reversal of the valuation
allowance. In addition, until such time the Company determines
it is more likely than not that it will generate sufficient
taxable income to realize its deferred tax assets, income tax
benefits associated with future period losses will be fully
reserved.
During 2006, the Company elected the application of tonnage tax.
Prior to the establishment of a full valuation allowance, the
Companys effective tax rate was impacted by the
Companys income from qualifying shipping activities as
well as the income from the Companys non-qualifying
shipping activities and fluctuated based on the ratio of income
from qualifying and non-qualifying activities. The
Companys effective tax rate for the years ended
December 26, 2010, December 20, 2009 and
December 21, 2008 was (0.7)%, (66.9)% and (67.0)%,
respectively.
Income tax expense (benefit) are as follows (in thousands):
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Fiscal Years Ended
|
|
|
|
December 26,
|
|
|
December 20,
|
|
|
December 21,
|
|
|
|
2010
|
|
|
2009
|
|
|
2008
|
|
|
Current:
|
|
|
|
|
|
|
|
|
|
|
|
|
Federal
|
|
$
|
70
|
|
|
$
|
(119
|
)
|
|
$
|
1,096
|
|
State/territory
|
|
|
44
|
|
|
|
218
|
|
|
|
186
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total current
|
|
|
114
|
|
|
|
99
|
|
|
|
1,282
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Deferred:
|
|
|
|
|
|
|
|
|
|
|
|
|
Federal
|
|
|
|
|
|
|
10,359
|
|
|
|
(5,457
|
)
|
State/territory
|
|
|
191
|
|
|
|
131
|
|
|
|
22
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total deferred
|
|
|
191
|
|
|
|
10,490
|
|
|
|
(5,435
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Income tax expense (benefit)
|
|
$
|
305
|
|
|
$
|
10,589
|
|
|
$
|
(4,153
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
The difference between the income tax expense (benefit) and the
amounts computed by applying the statutory federal income tax
rates to earnings before income taxes are as follows (in
thousands):
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Fiscal Years Ended
|
|
|
|
December 26,
|
|
|
December 20,
|
|
|
December 21,
|
|
|
|
2010
|
|
|
2009
|
|
|
2008
|
|
|
Income tax (benefit) expense at statutory rates:
|
|
$
|
(15,914
|
)
|
|
$
|
(5,537
|
)
|
|
$
|
2,170
|
|
State/territory, net of federal income tax benefit (excluding
valuation allowance)
|
|
|
(200
|
)
|
|
|
(898
|
)
|
|
|
6
|
|
Qualifying shipping income
|
|
|
(1,690
|
)
|
|
|
3,280
|
|
|
|
(6,725
|
)
|
Fines and penalties
|
|
|
11,168
|
|
|
|
46
|
|
|
|
20
|
|
Valuation allowance
|
|
|
6,241
|
|
|
|
13,162
|
|
|
|
|
|
Other Items
|
|
|
700
|
|
|
|
536
|
|
|
|
376
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Income tax expense (benefit)
|
|
$
|
305
|
|
|
$
|
10,589
|
|
|
$
|
(4,153
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
The Company recorded a tax benefit attributable to the
recognition of certain tax benefits derived from the exercise of
non-qualified stock options in the amount of $15 thousand as a
decrease directly to additional paid-in capital for the year
ended December 21, 2008.
F-32
Horizon Lines,
Inc.
Notes to
Consolidated Financial
Statements (Continued)
The components of deferred tax assets and liabilities are as
follows (in thousands):
|
|
|
|
|
|
|
|
|
|
|
December 26,
|
|
|
December 20,
|
|
|
|
2010
|
|
|
2009
|
|
|
Deferred tax assets:
|
|
|
|
|
|
|
|
|
Leases
|
|
$
|
8,407
|
|
|
$
|
10,011
|
|
Convertible note hedge
|
|
|
1,360
|
|
|
|
1,294
|
|
Allowance for doubtful accounts
|
|
|
1,329
|
|
|
|
1,372
|
|
Net operating losses, AMT carryforwards, and state credit
carryforwards
|
|
|
35,735
|
|
|
|
28,964
|
|
Post retirement benefits
|
|
|
1,639
|
|
|
|
1,374
|
|
Other
|
|
|
12,752
|
|
|
|
10,662
|
|
Valuation allowances
|
|
|
(16,136
|
)
|
|
|
(8,349
|
)
|
|
|
|
|
|
|
|
|
|
Total deferred tax assets
|
|
|
45,086
|
|
|
|
45,328
|
|
Deferred tax liabilities:
|
|
|
|
|
|
|
|
|
Depreciation
|
|
|
(18,496
|
)
|
|
|
(16,376
|
)
|
Capital construction fund
|
|
|
(14,791
|
)
|
|
|
(14,211
|
)
|
Intangibles
|
|
|
(11,556
|
)
|
|
|
(14,575
|
)
|
Other
|
|
|
(2,054
|
)
|
|
|
(1,788
|
)
|
|
|
|
|
|
|
|
|
|
Total deferred tax liabilities
|
|
|
(46,897
|
)
|
|
|
(46,950
|
)
|
|
|
|
|
|
|
|
|
|
Net deferred tax liability
|
|
$
|
(1,811
|
)
|
|
$
|
(1,622
|
)
|
|
|
|
|
|
|
|
|
|
The Company has net operating loss carryforwards for federal
income tax purposes in the amount of $130.9 million and
$114.4 million as of December 26, 2010 and
December 20, 2009, respectively. In addition, the Company
has net operating loss carryforwards for state income tax
purposes in the amount of $18.9 million and
$17.8 million as of December 26, 2010 and
December 20, 2009, respectively. The Federal and state net
operating loss carryforwards begin to expire in 2025 and 2019,
respectively. Furthermore, the Company has an alternative
minimum tax credit carryforward with no expiration period in the
amount of $1.4 million as of December 26, 2010 and
December 20, 2009. Net operating loss credits generated
from tax losses in Guam begin to expire in 2029. The Company has
recorded a valuation allowance against the majority of the
deferred tax assets attributable to the net operating losses
generated, but has not recorded a valuation allowance
attributable to the net operating losses generated in certain
states.
A reconciliation of the beginning and ending amount of
unrecognized tax benefits is as follows (in thousands):
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
2010
|
|
|
2009
|
|
|
2008
|
|
|
Beginning balance
|
|
$
|
12,531
|
|
|
$
|
8,989
|
|
|
$
|
8,482
|
|
Additions based on tax positions related to the current year
|
|
|
840
|
|
|
|
409
|
|
|
|
2,196
|
|
Additions for tax positions of prior years
|
|
|
225
|
|
|
|
5,793
|
|
|
|
|
|
Reductions for tax positions of prior years
|
|
|
|
|
|
|
(2,660
|
)
|
|
|
(1,689
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Ending balance
|
|
$
|
13,596
|
|
|
$
|
12,531
|
|
|
$
|
8,989
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
F-33
Horizon Lines,
Inc.
Notes to
Consolidated Financial
Statements (Continued)
As a result of the valuation allowance, none of the unrecognized
tax benefits, if recognized, would affect the effective tax
rate. The Company does not expect that there will be a
significant increase or decrease of the total amount of
unrecognized tax benefits within the next twelve months.
The Company recognizes interest accrued and penalties related to
unrecognized tax benefits in its income tax expense. During its
fiscal years for 2008 through 2010, the Company has not
recognized any interest and penalties in its statement of
operations and statement of financial position. Furthermore,
there were no accruals for the payment of interest and penalties
at either December 26, 2010 or December 20, 2009.
The Company or one of its subsidiaries files income tax returns
in the U.S. federal jurisdiction, various U.S. state
jurisdictions and foreign jurisdictions. With few exceptions,
the Company is no longer subject to U.S. federal, state and
local, or
non-U.S. income
tax examinations by tax authorities for years before 2005. The
tax years which remain subject to examination by major tax
jurisdictions as of December 26, 2010 include
2005-2010.
|
|
17.
|
Commitments and
Contingencies
|
Legal
Proceedings
Antitrust
Matters
On April 17, 2008, the Company received a grand jury
subpoena and search warrant from the United States District
Court for the Middle District of Florida seeking information
regarding an investigation by the Antitrust Division of the
Department of Justice (the DOJ) into possible
antitrust violations in the domestic ocean shipping business. On
February 23, 2011, the Company entered into a plea
agreement with the DOJ whereby the Company agreed to plead
guilty to a charge of violating federal antitrust laws solely
with respect to the Puerto Rico tradelane and agreed to pay a
fine of $45.0 million over five years without interest. The
first $1.0 million of the fine must be paid within
30 days after imposition of the sentence by the court and
annual payments of $1.0 million, $3.0 million,
$5.0 million, $15.0 million and $20.0 million
must be paid on each anniversary thereafter. The plea agreement
provides that the Company will not face additional charges
relating to the Puerto Rico tradelane. On March 22, 2011,
the court entered judgment accepting the Companys plea
agreement and placing the Company on probation for five years.
The terms of the probation include that the Company:
1) file annual audited financial reports, 2) not
commit a criminal act during the probation period,
3) report any material adverse legal or financial event,
and 4) annually certify that it has an antitrust compliance
program in place that satisfies the sentencing guidelines
requirements, including antitrust education to key personnel.
In addition, the plea agreement provides that the Company will
not face any additional charges in connection with the Alaska
trade, and the DOJ has indicated that the Company is not a
target or subject to any investigation in the Hawaii and Guam
trades. Also, in June 2009, the Company entered into a
conditional amnesty agreement with the DOJ under its Corporate
Leniency Policy. The amnesty agreement pertains to a single
contract relating to ocean shipping services provided to the
United States Department of Defense. The DOJ has agreed to not
bring any criminal prosecution with respect to that government
contract, as long as the Company, among other things, continues
its full cooperation in the investigation. The amnesty does not
bar a claim for damages that may be sought by the DOJ under any
applicable federal law or regulation.
The Company has included a charge of $30.0 million in its
fiscal 2010 financial statements, which represents the present
value of the $45.0 million in installment payments. The
Company has not made a provision in the accompanying financial
statements for any civil damages resulting from the amnesty
matter in the accompanying financial statements.
F-34
Horizon Lines,
Inc.
Notes to
Consolidated Financial
Statements (Continued)
Subsequent to the commencement of the DOJ investigation,
fifty-eight purported class action lawsuits were filed against
the Company and other domestic shipping carriers (the
Class Action Lawsuits). Each of the
Class Action Lawsuits purports to be on behalf of a class
of individuals and entities who purchased domestic ocean
shipping services directly from the various domestic ocean
carriers. These complaints allege price-fixing in violation of
the Sherman Act and seek treble monetary damages, costs,
attorneys fees, and an injunction against the allegedly
unlawful conduct. The Class Action Lawsuits were filed in
the following federal district courts: eight in the Southern
District of Florida, five in the Middle District of Florida,
nineteen in the District of Puerto Rico, twelve in the Northern
District of California, three in the Central District of
California, one in the District of Oregon, eight in the Western
District of Washington, one in the District of Hawaii, and one
in the District of Alaska.
Thirty-two of the Class Action Lawsuits relate to ocean
shipping services in the Puerto Rico tradelane and were
consolidated into a single multidistrict litigation
(MDL) proceeding in the District of Puerto Rico. On
June 11, 2009, the Company entered into a settlement
agreement with the named plaintiff class representatives in the
Puerto Rico MDL. Under the settlement agreement, the Company has
agreed to pay $20.0 million and to provide a base-rate
freeze as described below to resolve claims for alleged
antitrust violations in the Puerto Rico tradelane.
The base-rate freeze component of the settlement agreement
provides that class members who have contracts in the Puerto
Rico trade with the Company as of the effective date of the
settlement would have the option, in lieu of receiving cash, to
have their base rates frozen for a period of two
years. The base-rate freeze would run for two years from the
expiration of the contract in effect on the effective date of
the settlement. All class members would be eligible to share in
the $20.0 million cash component, but only our contract
customers would be eligible to elect the base-rate freeze in
lieu of receiving cash.
On July 8, 2009, the plaintiffs filed a motion for
preliminary approval of the settlement in the Puerto Rico MDL.
After several hearings, the Court granted preliminary approval
of the settlement on July 12, 2010. The settlement is
subject to final approval by the Court. The Company has paid
$10.0 million into an escrow account and is required to pay
the remaining $10.0 million within five business days after
final approval of the settlement agreement by the District
Court. On September 15, 2010, notices of the Puerto Rico
settlement were mailed to class members, who had sixty days to
respond. Some class members have elected to opt-out of the
settlement in response to the class notice they have received.
The Company has until April 29, 2011 to decide whether or
not to proceed with the class settlement.
The customers that have elected to opt-out of the settlement may
file lawsuits containing allegations similar to those made in
the Puerto Rico MDL and seek the same type of damages under the
Sherman Act as sought in the Puerto Rico MDL. The Company is not
able to determine whether or not any actions will be brought
against it or whether or not a negative outcome would be
probable if brought against the Company, or a reasonable range
for any such outcome, and has made no provisions for any
potential proceedings in the accompanying financial statements.
Given the volume of commerce involved in the Puerto Rico
shipping business, an adverse ruling in a potential civil
antitrust proceeding could subject the Company to substantial
civil damages given the treble damages provisions of the Sherman
Act.
In addition, the Company has actively engaged in discussions
with a number of our customers in the Puerto Rico trade
regarding the subject matter of the DOJ investigations. The
Company has reached commercial agreements or is seeking to reach
commercial agreements with certain of its major customers, with
the condition that the customer relinquishes all claims arising
out of the matters that are the subject of the antitrust
investigations. In some cases, the Company has agreed to, or is
F-35
Horizon Lines,
Inc.
Notes to
Consolidated Financial
Statements (Continued)
seeking to agree to, future discounts which will be charged
against operating revenue if and when the discount is earned and
certain other conditions are met.
Twenty-five of the fifty-eight Class Action Lawsuits relate
to ocean shipping services in the Hawaii and Guam tradelanes and
were consolidated into a MDL proceeding in the Western District
of Washington. On March 20, 2009, the Company filed a
motion to dismiss the claims in the Hawaii and Guam MDL. On
August 18, 2009, the United States District Court for the
Western District of Washington entered an order dismissing,
without prejudice, the Hawaii and Guam MDL. In dismissing the
complaint, however, the plaintiffs were granted thirty days to
amend their complaint. After several extensions, the plaintiffs
filed an amended consolidated class action complaint on
May 28, 2010. On July 12, 2010, the Company filed a
motion to dismiss the plaintiffs amended complaint. The
motion to dismiss the amended complaint was granted with
prejudice on December 1, 2010, and the plaintiffs have
served a notice of appeal with the United States Court of
Appeals for the Ninth Circuit. The Company intends to vigorously
defend against this purported class action lawsuit.
One district court case remains in the District of Alaska,
relating to the Alaska tradelane. The Company and the plaintiffs
have agreed to stay the Alaska litigation, and the Company
intends to vigorously defend against the purported class action
lawsuit in Alaska.
In addition, on July 9, 2008, a complaint was filed by
Caribbean Shipping Services, Inc. in the Circuit Court,
4th Judicial Circuit in and for Duval County, Florida,
against the Company and other domestic shipping carriers
alleging price-fixing in violation of the Florida Antitrust Act
and the Florida Deceptive and Unlawful Trade Practices Act. The
complaint seeks treble damages, injunctive relief, costs and
attorneys fees. The case is not brought as a class action.
On October 27, 2008, the Company filed a motion to dismiss.
The motion to dismiss is pending.
On October 9, 2009, the Company received a Request for
Information and Production of Documents from the Puerto Rico
Office of Monopolistic Affairs. The request relates to an
investigation into possible price fixing and unfair competition
in the Puerto Rico domestic ocean shipping business. In February
2011, the Commonwealth of Puerto Rico filed a lawsuit against us
seeking monetary damages on behalf of indirect purchasers.
On October 19, 2009, a purported class action lawsuit was
filed against the Company, other domestic shipping carriers and
certain individuals in the United States District Court for the
District of Puerto Rico. The complaint purports to be on behalf
of a class of persons (indirect purchasers) who allege to have
paid inflated prices for retail goods imported to Puerto Rico as
a result of alleged price-fixing of the defendants in violation
of the Sherman Act and various provisions of Puerto Rico law.
The plaintiffs are seeking treble monetary damages, costs and
attorneys fees. On April 9, 2010, the Company filed a
motion to dismiss. The District Court has dismissed all counts
in the complaint except those under Puerto Rico antitrust laws.
The District Court has certified to the Puerto Rico Supreme
Court the question of whether the Puerto Rico antitrust statute
applies to interstate commerce.
On February 22, 2011, the Company entered into a Memorandum
of Understanding with the attorneys representing the indirect
purchasers and the Commonwealth of Puerto Rico to settle the
investigation by the Puerto Rico Office of Monopolistic Affairs
and the lawsuit filed by the Commonwealth of Puerto Rico in
February 2011 and the class action lawsuit in the indirect
purchasers case. Under the Memorandum of Understanding, the
Company has agreed to pay $1.8 million for a full release
in those matters. The settlement agreement, when negotiated and
entered into by the parties, will be subject to court approval.
On December 31, 2008, a securities class action lawsuit was
filed against the Company by the City of Roseville
Employees Retirement System in the United States District
Court for the District of
F-36
Horizon Lines,
Inc.
Notes to
Consolidated Financial
Statements (Continued)
Delaware. The complaint purported to be on behalf of purchasers
of our common stock. The complaint alleged, among other things,
that the Company made material misstatements and omissions in
connection with alleged price-fixing in the Companys
shipping business in Puerto Rico in violation of antitrust laws.
The Company filed a motion to dismiss, and the Court granted the
motion to dismiss on November 13, 2009 with leave to file
an amended complaint. The plaintiff filed an amended complaint
on December 23, 2009, and the Company filed a motion to
dismiss the amended complaint on February 12, 2010. The
Companys motion to dismiss the amended complaint was
granted with prejudice on May 18, 2010. On June 15,
2010, the plaintiff appealed the Courts decision to
dismiss the amended complaint. The Company filed its opposition
brief with the Court of Appeals on December 22, 2010 and
the plaintiffs filed their reply brief on February 2, 2011.
On March 9, 2010, the Companys Board of Directors and
certain current and former officers of the Company were named as
defendants in a shareholder derivative lawsuit filed in the
Superior Court of Mecklenburg County, North Carolina. The
derivative suit was filed by a shareholder named Patrick Smith
purportedly on behalf of Horizon Lines, Inc. claiming that the
Directors and current and former officers named in the complaint
breached their fiduciary duties and damaged the Company by
allegedly causing the Company to engage in an antitrust
conspiracy in the ocean shipping trade routes between the
continental United States and Alaska, Hawaii, Guam and Puerto
Rico. The relief being sought by the plaintiff includes monetary
damages, fees and expenses associated with the action, including
attorneys fees, and appropriate equitable relief. The
defendants filed a motion to dismiss on May 27, 2010. The
motion was granted on October 21, 2010. The time for an
appeal has expired.
Through December 26, 2010, the Company has incurred
approximately $28.1 million in legal and professional fees
associated with the DOJ investigation, the antitrust related
litigation, and other related legal proceedings.
Environmental
Matters
The Company is subject to numerous laws and regulations relating
to environmental matters and related record keeping and
reporting. The Company has been advised that the U.S. Coast
Guard and U.S. Attorneys Office are investigating
matters involving two of the Companys vessels. The Company
is cooperating with this investigation. It is possible that the
outcome of the investigation could result in a substantial fine
and other actions against us that could have an adverse effect
on the Companys business and operations.
In the ordinary course of business, from time to time, the
Company becomes involved in various legal proceedings. These
relate primarily to claims for loss or damage to cargo,
employees personal injury claims, and claims for loss or
damage to the person or property of third parties. The Company
generally maintains insurance, subject to customary deductibles
or self-retention amounts,
and/or
reserves to cover these types of claims. The Company also, from
time to time, becomes involved in routine employment-related
disputes and disputes with parties with which it has contractual
relations.
SFL
Agreements
In April 2006, the Company completed a series of agreements with
Ship Finance International Limited and certain of its
subsidiaries (SFL) to charter five new non-Jones Act
qualified container vessels. The bareboat charter for each new
vessel is a hell or high water charter, and the
obligation of the Company to pay charter hire thereunder for the
vessel is absolute and unconditional. The aggregate annual
charter hire for all of the five new vessels is approximately
$32.0 million. Under the charters, the Company is
responsible for crewing, insuring, maintaining, and repairing
each vessel and for all other operating costs with respect to
each vessel. The term of each of the bareboat
F-37
Horizon Lines,
Inc.
Notes to
Consolidated Financial
Statements (Continued)
charters is twelve years from the date of delivery of the
related vessel, with a three year renewal option exercisable by
the Company. In addition, the Company has the option to purchase
all of the vessels following the five, eight, twelve, and, if
applicable, fifteen year anniversaries of the date of delivery
at pre-agreed purchase prices. If the Company elects to purchase
all of the vessels after the five or eight year anniversary
date, it will have the right to assume the outstanding debt
related to each purchased vessel, and the amount of the debt so
assumed will be credited against the purchase price paid for the
vessels. If the Company elects not to purchase the new vessels
at the end of the initial twelve-year period and SFL sells the
new vessels for less than a specified amount, the Company is
responsible for paying the amount of such shortfall, which shall
not exceed $3.8 million per new vessel. If the new vessels
are to be sold by SFL to an affiliated party for less than a
different specified amount, the Company has the right to
purchase the new vessels for that different specified amount.
Although the Company is not the primary beneficiary of the
variable interest entities created in conjunction with the SFL
transactions, the Company has an interest in the variable
interest entities. Based on the Companys analysis of the
expected cash flows related to the variable interest entity, the
Company believes only a remote likelihood exists that it would
become the primary beneficiary of the variable interest entity
and would be required to consolidate the variable interest
entity. Certain contractual obligations and off-balance sheet
obligations arising from this transaction include the annual
operating lease obligations and the residual guarantee. The
Company is accounting for the leases as operating leases. The
residual guarantee is recorded at its fair value of
approximately $0.3 million as a liability on the
Companys balance sheet.
Standby
Letters of Credit
The Company has standby letters of credit, primarily related to
its property and casualty insurance programs. On
December 26, 2010 and December 20, 2009, these letters
of credit totaled $11.3 million and $11.1 million,
respectively.
Labor
Relations
Approximately 67.1% of the Companys total work force is
covered by collective bargaining agreements. Our collective
bargaining agreements are scheduled to expire as follows: three
in 2011, three in 2012, one in 2013, one in 2014, and two in
2017. The three agreements scheduled to expire in 2011
represents approximately 38% of the Companys union work
force.
F-38
Horizon Lines,
Inc.
Notes to
Consolidated Financial
Statements (Continued)
|
|
18.
|
Quarterly
Financial Data (Unaudited)
|
Set forth below are unaudited quarterly financial data (in
thousands, except per share amounts):
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Fiscal Year 2010
|
|
|
|
First
|
|
|
Second
|
|
|
Third
|
|
|
Fourth
|
|
|
|
Quarter
|
|
|
Quarter
|
|
|
Quarter
|
|
|
Quarter
|
|
|
Operating revenue
|
|
$
|
274,658
|
|
|
$
|
291,387
|
|
|
$
|
297,612
|
|
|
$
|
298,849
|
|
Operating (loss) income(1)(2)
|
|
|
(1,848
|
)
|
|
|
13,962
|
|
|
|
18,107
|
|
|
|
(35,526
|
)
|
(Loss) income from continuing operations
|
|
$
|
(11,695
|
)
|
|
$
|
4,125
|
|
|
$
|
8,218
|
|
|
$
|
(46,947
|
)
|
Loss from discontinued operations
|
|
|
(1,549
|
)
|
|
|
(475
|
)
|
|
|
(471
|
)
|
|
|
(9,175
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net (loss) income(1)(2)
|
|
$
|
(13,244
|
)
|
|
$
|
3,650
|
|
|
$
|
7,747
|
|
|
$
|
(56,122
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Basic net (loss) income per share from continuing operations
|
|
$
|
(0.38
|
)
|
|
$
|
0.14
|
|
|
$
|
0.27
|
|
|
$
|
(1.53
|
)
|
Basic net loss per share from discontinued operations
|
|
|
(0.05
|
)
|
|
|
(0.02
|
)
|
|
|
(0.02
|
)
|
|
|
(0.29
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Basic net (loss) income per share
|
|
$
|
(0.43
|
)
|
|
$
|
0.12
|
|
|
$
|
0.25
|
|
|
$
|
(1.82
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Diluted net (loss) income per share from continuing operations
|
|
$
|
(0.38
|
)
|
|
$
|
0.14
|
|
|
$
|
0.27
|
|
|
$
|
(1.53
|
)
|
Diluted net loss per share from discontinued operations
|
|
|
(0.05
|
)
|
|
|
(0.02
|
)
|
|
|
(0.02
|
)
|
|
|
(0.29
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Diluted net (loss) income per share
|
|
$
|
(0.43
|
)
|
|
$
|
0.12
|
|
|
$
|
0.25
|
|
|
$
|
(1.82
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Fiscal Year 2009
|
|
|
|
First
|
|
|
Second
|
|
|
Third
|
|
|
Fourth
|
|
|
|
Quarter
|
|
|
Quarter
|
|
|
Quarter
|
|
|
Quarter
|
|
|
Operating revenue
|
|
$
|
265,033
|
|
|
$
|
271,186
|
|
|
$
|
301,305
|
|
|
$
|
286,691
|
|
Operating income (loss)(1)(2)
|
|
|
56
|
|
|
|
(9,648
|
)
|
|
|
20,007
|
|
|
|
11,863
|
|
(Loss) income from continuing operations
|
|
$
|
(8,718
|
)
|
|
$
|
(29,204
|
)
|
|
$
|
9,964
|
|
|
$
|
1,551
|
|
Loss from discontinued operations
|
|
|
(1,235
|
)
|
|
|
(1,879
|
)
|
|
|
(1,526
|
)
|
|
|
(225
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net (loss) income(1)(2)(3)
|
|
$
|
(9,953
|
)
|
|
$
|
(31,083
|
)
|
|
$
|
8,438
|
|
|
$
|
1,326
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Basic net (loss) income per share from continuing operations
|
|
$
|
(0.29
|
)
|
|
$
|
(0.96
|
)
|
|
$
|
0.33
|
|
|
$
|
0.05
|
|
Basic net loss per share from discontinued operations
|
|
|
(0.04
|
)
|
|
|
(0.06
|
)
|
|
|
(0.05
|
)
|
|
|
(0.01
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Basic net (loss) income per share
|
|
$
|
(0.33
|
)
|
|
$
|
(1.02
|
)
|
|
$
|
0.28
|
|
|
$
|
0.04
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Diluted net (loss) income per share from continuing operations
|
|
$
|
(0.29
|
)
|
|
$
|
(0.96
|
)
|
|
$
|
0.32
|
|
|
$
|
0.05
|
|
Diluted net loss per share from discontinued operations
|
|
|
(0.04
|
)
|
|
|
(0.06
|
)
|
|
|
(0.05
|
)
|
|
|
(0.01
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Diluted net (loss) income per share
|
|
$
|
(0.33
|
)
|
|
$
|
(1.02
|
)
|
|
$
|
0.27
|
|
|
$
|
0.04
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(1) |
|
The first, second, third, and fourth quarter of 2010 include
expenses of $1.0 million, $1.0 million,
$1.5 million, and $1.7 million, respectively, related
to legal and professional fees associated with the DOJ
investigation and the antitrust related litigation. The first,
second, third, and fourth quarter of 2009 include expenses of
$4.4 million, $4.1 million, $2.0 million, and
$1.7 million, respectively, related to legal and
professional fees associated with the DOJ investigation and the
antitrust |
F-39
Horizon Lines,
Inc.
Notes to
Consolidated Financial
Statements (Continued)
|
|
|
|
|
related litigation. The fourth quarter of 2010 includes expenses
of $2.0 million related to the Companys restructuring
plan. The third and fourth quarter of 2010 include
$1.8 million and $0.8 million, respectively, related
to an impairment charge. |
|
(2) |
|
The third quarter of 2010 includes $1.8 million related to
an impairment charge. The first and second quarter of 2009
include a $0.8 million and $0.2 million charge,
respectively, related to the Companys restructuring plan.
The second and third quarter of 2009 include $0.7 million
and $1.2 million, respectively, related to an impairment
charge. The fourth quarter of 2010 includes a $30.0 million
charge for the settlement with the DOJ and a $1.8 million
charge for the settlement of the Puerto Rico indirect purchaser
lawsuit. The second quarter of 2009 includes a
$20.0 million charge for the settlement of a class action
lawsuit. |
|
(3) |
|
During the second quarter of 2009, the Company determined it was
unclear as to the timing of when it will generate sufficient
taxable income to realize its deferred tax assets. Accordingly,
the Company recorded a valuation allowance against its deferred
tax assets which resulted in a $10.5 million income tax
provision. |
On February 23, 2011, the Company and Charles G. Raymond,
its President and Chief Executive Officer, entered into a
Separation Agreement in connection with Mr. Raymonds
retirement from the Company. Under the terms of the Separation
Agreement, Mr. Raymond will receive severance payments over
a period of 25 months totaling approximately
$2.3 million. In addition, the Company will reimburse
Mr. Raymond for premiums related to continued health
coverage under COBRA for the period he and his eligible
dependents are covered under COBRA. Mr. Raymond will also
be entitled to indemnification and the advancement of legal
expenses as provided by the Companys charter and bylaws
and any other applicable documents, and Mr. Raymond has
agreed not to sell any shares of the Companys common stock
that he owns for a period of one year. In addition, the terms of
the Separation Agreement include a non-compete provision for a
period of two years.
On March 28, 2011, the Company executed an employment
agreement with Stephen H. Fraser, who began serving as its
interim President and Chief Executive Officer on March 11,
2011. The term of the agreement is until the Company appoints a
successor president and chief executive officer, and the
agreement may be terminated by either party upon thirty days
written notice. Pursuant to the terms of the agreement,
Mr. Fraser will be entitled to a salary of $90,000 per
month, plus other usual employee benefits offered to the
Companys employees. The agreement also provides that
Mr. Fraser shall be reimbursed for certain transportation
expenses and may elect to be reimbursed for his cost of medical
insurance for himself and his dependents. Mr. Fraser will
continue to serve as a member of the Companys board of
directors. Mr. Fraser will continue to be eligible for
compensation awarded to the board of directors, and the stock
ownership guidelines applicable to board members will continue
to be applicable to him. Mr. Frasers annual cash
retainer for service on the board will be prorated to reflect
only the period which he was a non-employee director. This
description of the employment agreement is not complete and is
qualified by its entirety by the full text of the agreement
which is attached hereto as an exhibit.
On March 9, 2011, the Company entered into an amendment of
its Senior Credit Facility. In addition, the amendment waives
default conditions related to the recently announced settlement
agreement with the DOJ. The Senior Credit Facility was amended
to (i) increase the senior secured leverage ratio from
2.75x to 3.50x for the fiscal quarters ending March 27,
2011 and June 26, 2011, and from 2.75x to 3.00x for the
fiscal quarter ending September 25, 2011 (remaining at
2.75x for all fiscal quarters thereafter), (ii) decrease
the interest coverage ratio minimum from 3.50x to 2.50x for the
fiscal quarters ending March 27, 2011 and June 26,
2011, from 3.50x to 2.75x for the fiscal quarter ending
September 25, 2011, and from 3.50x to 3.00x for the fiscal
quarter ending
F-40
Horizon Lines,
Inc.
Notes to
Consolidated Financial
Statements (Continued)
December 25, 2011 (remaining at 3.50x for all fiscal
quarters thereafter), (iii) increase the spread over LIBOR
and Prime rates by 250 bps, and (iv) restrict cash
dividends from being paid on any class of capital stock. The
amendment revises the definition of Consolidated EBITDA by
allowing for certain charges, including (i) transaction
costs incurred in connection with obtaining the credit agreement
amendment, the convertible bondholder waiver consent, and any
other proposed refinancing costs that are not counted as
interest expense or capitalized as deferred financing fees in an
amount not to exceed $5.0 million and (ii) litigation
expenses related to antitrust litigation matters in an amount
not to exceed $28 million in the aggregate, to be added
back to the calculation of Consolidated EBITDA. As a result of
the amendment, the Company paid $1.3 million in financing
costs.
F-41
Schedule II
Horizon Lines,
Inc.
Valuation and Qualifying Accounts
Years Ended December 2010, 2009 and 2008
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Charged
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
to Cost
|
|
|
|
|
|
Charged
|
|
|
|
|
|
|
Beginning
|
|
|
and
|
|
|
|
|
|
to other
|
|
|
Ending
|
|
|
|
Balance
|
|
|
Expenses
|
|
|
Deductions
|
|
|
Accounts
|
|
|
Balance
|
|
|
|
(In thousands)
|
|
|
Accounts receivable reserve:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Year ended December 26, 2010:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Allowance for doubtful accounts
|
|
$
|
5,965
|
|
|
$
|
1,459
|
|
|
$
|
(1,195
|
)
|
|
$
|
|
|
|
$
|
6,229
|
|
Allowance for revenue adjustments
|
|
|
1,030
|
|
|
|
3,401
|
|
|
|
(3,701
|
)
|
|
|
|
|
|
|
730
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
$
|
6,996
|
|
|
$
|
4,860
|
|
|
$
|
(4,896
|
)
|
|
$
|
|
|
|
$
|
6,959
|
|
Year ended December 20, 2009:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Allowance for doubtful accounts
|
|
$
|
6,675
|
|
|
$
|
1,975
|
|
|
$
|
(2,685
|
)
|
|
$
|
|
|
|
$
|
5,965
|
|
Allowance for revenue adjustments
|
|
|
1,030
|
|
|
|
5,824
|
|
|
|
(5,824
|
)
|
|
|
|
|
|
|
1,030
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
$
|
7,705
|
|
|
$
|
7,799
|
|
|
$
|
(8,509
|
)
|
|
$
|
|
|
|
$
|
6,996
|
|
Year ended December 21, 2008:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Allowance for doubtful accounts
|
|
$
|
4,650
|
|
|
$
|
2,937
|
|
|
$
|
(912
|
)
|
|
$
|
|
|
|
$
|
6,675
|
|
Allowance for revenue adjustments
|
|
|
1,030
|
|
|
|
4,723
|
|
|
|
(4,723
|
)
|
|
|
|
|
|
|
1,030
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
$
|
5,680
|
|
|
$
|
7,660
|
|
|
$
|
(5,635
|
)
|
|
$
|
|
|
|
$
|
7,705
|
|
Restructuring costs:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Year ended December 26, 2010
|
|
$
|
150
|
|
|
$
|
2,057
|
|
|
$
|
(165
|
)
|
|
$
|
|
|
|
$
|
2,042
|
|
Year ended December 20, 2009
|
|
$
|
3,197
|
|
|
$
|
1,001
|
|
|
$
|
(3,563
|
)
|
|
$
|
(485
|
)(1)
|
|
$
|
150
|
|
Year ended December 21, 2008
|
|
$
|
|
|
|
$
|
3,244
|
|
|
$
|
(47
|
)
|
|
$
|
|
|
|
$
|
3,197
|
|
Deferred tax assets valuation allowance:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Year ended December 26, 2010
|
|
$
|
8,349
|
|
|
$
|
7,513
|
|
|
$
|
|
|
|
$
|
274
|
(2)
|
|
$
|
16,136
|
|
Year ended December 20, 2009
|
|
$
|
1,262
|
|
|
$
|
9,102
|
|
|
$
|
|
|
|
$
|
(2,015
|
)(2)
|
|
$
|
8,349
|
|
Year ended December 21, 2008
|
|
$
|
1,262
|
|
|
$
|
|
|
|
$
|
|
|
|
$
|
|
|
|
$
|
1,262
|
|
|
|
|
(1) |
|
Includes $0.5 million of stock-based compensation recorded
in additional paid in capital. |
|
(2) |
|
Includes $0.7 million and $2.0 million of recorded in
other comprehensive income (loss). |
F-42