EXHIBIT 10.1
RESTRUCTURING AGREEMENT
THIS RESTRUCTURING AGREEMENT (this "Agreement") is entered into as of the 25th
day of September 2003, by and among the following parties:
STERLING CONSTRUCTION COMPANY, INC. (f/k/a Oakhurst Company, Inc.) a Delaware
corporation ("SCC;")
STERLING HOUSTON HOLDINGS, INC., (f/k/a Sterling Construction Company, Inc.) a
Delaware corporation ("SHH;")
THE STOCKHOLDERS OF SHH whose names appear on the signature pages of this
Agreement under the heading and hereby defined as the "Selling Stockholders;"
HARE & CO. A/C BANK OF NEW YORK ("Hare;")
THE HOLDERS OF CERTAIN PROMISSORY NOTES originally issued by SCC or an affiliate
of SCC to James R. Manning whose names appear on the signature pages of this
Agreement under the heading and hereby defined as the "Manning Noteholders;"
MAARTEN D. HEMSLEY ("Mr. Hemsley;") and
ROBERT M. DAVIES ("Mr. Davies.")
The Manning Noteholders, Mr. Hemsley and Mr. Davies are sometimes referred to
herein collectively as the "Other Noteholders."
BACKGROUND
Pursuant to that certain Securities Purchase Agreement dated as of July 13, 2001
between SCC, SHH and certain funds holding shares of SHH, SCC issued a
promissory note to North Atlantic Small Companies Investment Trust Plc in the
aggregate amount of principal and interest due at maturity of four million sixty
thousand dollars ($4,060,000.00) that was subsequently assigned to Hare.
Pursuant to that certain Transaction Agreement entered into in July 2001 between
SCC, SHH and the Selling Stockholders, SCC among other things purchased from the
Selling Stockholders certain shares of SHH common stock and issued certain
promissory notes to the Selling Stockholders. The promissory notes held by Hare
and the Selling Stockholders are identical except as to amount and holder and
each is hereinafter referred to as a "Zero Coupon Note."
Pursuant to the Transaction Agreement, SCC also granted to the Selling
Stockholders the right to sell (put) their remaining shares of SHH common stock
to SCC at any time after the third anniversary of the closing of the Transaction
Agreement and prior to the fourth anniversary thereof (the "Put") at a price of
one hundred five dollars and twenty-six cents ($105.26) per share (the "Exercise
Price.")
If the Put is exercised, SCC is required within ninety (90) days to pay to each
of the Selling Stockholders the Exercise Price and any applicable Earnout
Payment in immediately available funds. In the event of its inability to do so,
SCC is required to issue a secured note in lieu thereof. In addition, according
to their terms, all of the Zero Coupon Notes become due and payable on the date
SCC is required to pay the Exercise Price to the Selling Stockholders.
Depending on the date the Put is exercised, the cash requirement resulting from
the exercise of the Put could be approximately $19.5 million.
SCC and the Selling Stockholders now wish to amend the Transaction Agreement,
but only to the extent necessary to enable SCC to pay the Exercise Price and the
Earnout Payment with a combination of cash and securities.
SCC, the Selling Stockholders and Hare now wish to amend the Zero Coupon Notes
to provide for their payment with a combination of cash and securities.
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In addition, SCC and the Other Noteholders wish to amend and restate in their
entirety (a) two promissory notes originally issued by SCC to James R. Manning
and currently held by the Manning Noteholders (the "Manning Notes;") (b) a
promissory note issued by SCC to Mr. Hemsley (the "Hemsley Note;") and two
promissory notes issued to Mr. Davies, (in one of which Mr. Hemsley has a
participation interest) one by SCC and the other by a wholly owned subsidiary of
SCC and transferred by merger to SCC. The Manning Notes, the Hemsley Note and
the Davies Notes are sometimes referred to collectively as the "Other Notes."
Capitalized terms used but not defined herein shall have the meanings given to
them in the Transaction Agreement.
1. CONSIDERATION. Accordingly, the parties are entering into this Agreement
for and in consideration of the foregoing recitals, the mutual covenants
contained herein and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged.
2. EXERCISE PRICE. The Selling Stockholders hereby agree to amend Section
1.2(a) and Section 1.2(c) of the Transaction Agreement to read as set forth
in Exhibit A so that in lieu of the payment in cash by SCC of the Exercise
Price, SCC shall have the option of paying the Exercise Price by means of
the following (the "Alternate Exercise Price Payment Method:")
2.1 Cash in the aggregate amount of $2,415,525, subject to Section 7,
below;
2.2 Five-year amortizing subordinated promissory notes bearing interest
payable quarterly in arrears at the annual rate of 12%, repayable in
twenty (20) quarterly installments of principal and interest, the
first of which shall be due three full calendar months following the
date of issuance, such note to be in the form set forth herein and
attached hereto as Exhibit B (each a "Five-Year Note") in the
aggregate original principal amount of $6,353,913; and
2.3 A five-year subordinated cash availability note repayable in a single
payment on its maturity date that accrues 14% interest, compounded
annually, and that is subject to the mandatory prepayment of interest
and principal upon the achievement by SCC of defined cash flow
targets, such notes to be in the form set forth herein and attached
hereto as Exhibit C (each a "Cash Availability Note") in the aggregate
principal amount of $3,230,562; provided however, that SCC shall have
sixty (60) days after the Put Election Date in which to negotiate with
the Selling Stockholders the issuance of shares of SCC common stock in
lieu of the issuance of some or all of the Cash Availability Notes.
The allocation of the foregoing cash, Five-Year Notes and Cash Availability
Notes (and any shares of SCC common stock issued in lieu of the latter)
among the Selling Stockholders shall be in accordance with such arrangement
as they may unanimously agree upon. The acceptance by a Selling Stockholder
of cash, a Five-Year Note, a Cash Availability Note and/or shares of SCC
common stock in payment of the Exercise Price to which he is entitled shall
be conclusive evidence of such Selling Stockholder's acceptance of such
allocation for all purposes. Failing unanimous agreement on the manner of
allocation, SCC shall issue the cash, notes and any shares in the ratio
that the number of each Selling Stockholder's shares of SHH put to SCC
bears to the aggregate amount of all such shares.
3. EARNOUT PAYMENT.
3.1 Each of the Selling Stockholders agrees that payment of the Earnout
Payment (if any shall become due) may be made by SCC by the issuance
to the Selling Stockholders of Cash Availability Notes with principal
and interest payable at maturity in the aggregate amount equal to the
amount of the Earnout Pool Amount (the "Alternate Earnout Payment
Method;") provided however, that SCC shall have sixty (60) days after
the Put Election Date in which to negotiate with the Selling
Stockholders the issuance of shares of SCC common stock in lieu of the
issuance of some or all of such Cash Availability Notes.
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3.2 The allocation of the foregoing Cash Availability Notes among the
Selling Stockholders shall be in accordance with such arrangement as
they may unanimously agree upon. The acceptance by a Selling
Stockholder of a Cash Availability Note or shares of SCC common stock
or both in payment of the portion of the Earnout Payment to which he
is entitled shall be conclusive evidence of such Selling Stockholder's
acceptance of such allocation for all purposes. Failing unanimous
agreement on the manner of allocation, SCC shall issue the Cash
Availability Notes and/or SCC shares in the ratio that each Selling
Stockholder's share of the Earnout Payment bears to the total Earnout
Payment.
4. THE SELLING STOCKHOLDERS' ZERO COUPON NOTES. Each of the Selling
Stockholders agrees to amend the paragraphs of his Zero Coupon Notes that
precede the first numbered paragraph thereof to read as set forth in
Exhibit D-1 in order to provide that on the Maturity Date (as defined in
the Zero Coupon Note) SCC shall have the option of making payment of the
amount then due by paying and issuing to the holders of the Zero Coupon
Notes the following (collectively the "Alternate Zero Coupon Pay-Off
Method:")
4.1 Cash in the aggregate amount of $724,859, subject to Section 7, below;
4.2 Five-Year Notes in the aggregate original principal amount of
$1,906,703; and
4.3 Cash Availability Notes with principal and interest payable at
maturity in the aggregate amount equal to (a) the aggregate amount due
the Selling Stockholders on the Maturity Date, less (b) the sum of the
cash set forth in Section 4.1, above, and the face amount of the
Five-Year Notes set forth in Section 4.2, above; provided however,
that SCC shall have sixty (60) days after the Put Election Date in
which to negotiate with the Selling Stockholders the issuance of
shares of SCC common stock in lieu of the issuance of some or all of
the Cash Availability Notes.
The allocation of the foregoing cash, Five-Year Notes and Cash Availability
Notes (and any shares of SCC common stock issued in lieu of the latter)
among the Selling Stockholders shall be in accordance with such arrangement
as they may unanimously agree upon. The acceptance by a Selling Stockholder
of cash, a Five-Year Note, a Cash Availability Note and/or shares of SCC
common stock in payment of his Zero Coupon Notes shall be conclusive
evidence of such Selling Stockholder's acceptance of such allocation for
all purposes. Failing unanimous agreement on the manner of allocation, SCC
shall issue the cash, notes and/or shares in the ratio that each Selling
Stockholder's Zero Coupon Notes bear to the aggregate face amount of all
Zero Coupon Notes.
5. THE HARE ZERO COUPON NOTES. Hare agrees to amend the paragraphs of its Zero
Coupon Note that precede the first numbered paragraph thereof to read as
set forth in Exhibit D-2 in order to provide that on the Maturity Date (as
defined therein) SCC shall have the option of making payment of the amount
then due by paying and issuing to Hare the following (the "Alternate Hare
Pay-Off Method:"):
5.1 Cash equal to 57.5% of the amount due to Hare on the Maturity Date,
subject to Section 7, below; and
5.2 A Five-Year Note in the original principal amount equal to the amount
due Hare on the Maturity Date less the cash paid pursuant to Section
5.1, above.
6. THE OTHER NOTES. The Other Noteholders hereby agree to amend their
respective notes as set forth in Exhibit E to provide that the maturity
date thereof shall be the Put Payment Date (the "Amended Maturity Date")
and to surrender the same to the Company promptly after receiving written
notice of the Put Election Date, and to accept as payment in full thereof
the following (the "Alternate Other Note Pay-Off Method:")
6.1 Cash in the aggregate amount equal to 50% of the amount due the Other
Noteholders at the Amended Maturity Date, subject to Section 7, below;
and
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6.2 Five-Year Notes in the aggregate original principal amount equal to
the balance of the amount due the Other Noteholders at the Amended
Maturity Date not paid under Section 6.1, above.
6.3 The Company shall provide prompt written notice to the Other
Noteholders of the Put Election Date.
The allocation of the foregoing cash and Five-Year Notes shall be in
the ratio that the then outstanding principal and accrued interest of
each such note at the date of issuance of the Five-Year Notes bears to
the aggregate of such principal and accrued interest of all of the
Other Notes.
7. PROPORTIONATE REDUCTION. Anything in this Agreement to the contrary
notwithstanding, in the event that SCC is unable to make all of the cash
payments required by Sections 2.1, 3.1, 4.1, 5.1 and 6.1, above, the amount
of cash payable pursuant to each such section shall be reduced in the
proportion that the cash payable under such section bears to the cash
payable under all of such sections.
8. MISCELLANEOUS.
8.1 This Agreement, any attachments referred to herein and any other
written agreement specifically described herein, set forth the full
and complete understanding of the parties with respect to the matters
herein or in such other written agreements--
(a) shall not be amended except by written agreement of the parties
signed by each of them;
(b) shall be binding upon and inure to the benefit of the parties and
their successors [personal representatives] and permitted
assigns; and
(c) shall be assignable by a party (other than SCC and SHH) only in
connection with the instrument or instruments held by the
assignor to which this Agreement relates.
8.2 This Agreement and any amendment hereof may be executed in any number
of counterparts, each of which may be executed by fewer than all of
the parties hereto (provided that each party executes one or more
counterparts), each of which counterparts shall be enforceable against
the parties actually executing such counterparts, and all of which
together shall constitute but one and the same instrument. This
Agreement may be delivered by telecopier or other facsimile
transmission with the same force and effect as if the same were a
fully executed and delivered original manual counterpart.
8.3 The words "hereof," "herein," "hereunder," "this Agreement" and words
of similar import when used in this Agreement shall refer to this
Agreement as a whole and not any particular provision of this
Agreement and as this Agreement now exists or may hereafter be
amended, modified, supplemented, extended, renewed, restated or
replaced. The words "include" "includes" "including" and words of
similar import shall mean considered as part of a larger group and not
limited to any one or more enumerated items.
8.4 The captions of the paragraphs herein are for convenience only and
shall not be used to construe or interpret this Agreement.
8.5 The waiver of any term or condition hereof shall be in writing and
signed by the party or parties to be bound thereby. Failure by a party
to insist upon strict compliance with any term, covenant or condition,
or to exercise any right, contained herein shall not be deemed a
waiver of such term, covenant, condition or right; and no waiver or
relinquishment of any term, covenant, condition or right at any one or
more times shall be deemed a waiver or relinquishment thereof at any
other time or times.
8.6 Each provision of this Agreement shall be interpreted and enforced
without the aid of any canon, custom or rule of law requiring or
suggesting construction against the party drafting or causing the
drafting of such provision.
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8.7 No representation, affirmation of fact, course of prior dealings,
promise or condition in connection herewith or usage of the trade not
expressly incorporated herein shall be binding on the parties.
9. GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the domestic laws of the State of Delaware without giving
effect to any choice of law or conflict of law provision or rule (whether
of the State of Delaware or of any other jurisdiction) that would cause the
application hereto of the laws of any jurisdiction other than the State of
Delaware.
IN WITNESS WHEREOF, the parties that are corporations have caused this Agreement
to be executed by their duly authorized representatives and parties who are
individuals have personally executed this Agreement as of the Effective Date.
STERLING CONSTRUCTION COMPANY, INC. STERLING HOUSTON HOLDINGS, INC.
By: /s/ John D. Abernathy By: /s/ Patrick T. Manning
------------------------------------- ---------------------------
John D. Abernathy Patrick T. Manning
Member, ad hoc Restructuring Committee Chairman and Chief Executive
of the Board of Directors Officer
SELLING STOCKHOLDERS: HARE & CO. A/C BANK OF NEW YORK
BY: J O HAMBRO CAPITAL MANAGEMENT
/s/ James D. Manning
- ----------------------------------------
James D. Manning
/s/ Patrick T. Manning By: /s/ R. G. Barrett
- ---------------------------------------- -----------------------------
Patrick T. Manning Name: R. G. Barrett
Title: Director
/s/ Joseph P. Harper, Sr.
- ----------------------------------------
Joseph P. Harper, Sr.
/s/ Terry D. Williamson /s/ Maarten D. Hemsley
- ---------------------------------------- ---------------------------------
Terry D. Williamson Maarten D. Hemsley
/s/ Anthony F. Colombo
- ----------------------------------------
Anthony F. Colombo
/s/ Kevin J. Manning /s/ Robert M. Davies
- ---------------------------------------- ---------------------------------
Kevin J. Manning Robert M. Davies
/s/ Joseph P. Harper, Jr.
- ----------------------------------------
Joseph P. Harper, Jr.
/s/ Julie M. Crump
- ----------------------------------------
Julie M. Crump
/s/ Brian R. Manning
- ----------------------------------------
Brian R. Manning
/s/ Jeffrey Manning
- ----------------------------------------
Jeffrey Manning
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MANNING NOTEHOLDERS:
/s/ James D. Manning
- ----------------------------------------
James D. Manning
/s/ Joseph P. Harper, Sr.
- ----------------------------------------
Joseph P. Harper, Sr.
/s/ Anthony F. Colombo
- ----------------------------------------
Anthony F. Colombo
Exhibit List:
Exhibit A Section 1.2(a) & (c) of the Transaction Agreement as amended
Exhibit B Form of the Five Year Note
Exhibit C Form of the Cash Availability Note
Exhibit D-1 Certain paragraphs of the Selling Stockholders' Zero Coupon
Notes as amended
Exhibit D-2 Certain paragraphs of the Hare Zero Coupon Note as amended
Exhibit E Certain language to be added to each of the Other Notes
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