EXHIBIT 10.25
NOTE AND WARRANT AMENDMENT AGREEMENT
This NOTE AND WARRANT AMENDMENT AGREEMENT (this "Agreement") is entered
into as of the 3rd day of February 2005 by and among the following parties:
STERLING CONSTRUCTION COMPANY, INC., a Delaware corporation ("SCC;")
HARE & CO. A/C BANK OF NEW YORK ("Hare,") and
THE HOLDERS OF CERTAIN PROMISSORY NOTES issued by SCC whose names appear
on the signature page of this Agreement (the "Noteholders") under that
heading.
BACKGROUND
Effective October 31, 2001, SCC issued to North Atlantic Small Companies
Investment Trust Plc ("NASCIT") Warrant No. ST-12 to purchase 322,661 shares of
the common stock of SCC. NASCIT subsequently assigned that warrant to Hare
whereupon it was reissued as Warrant No. ST-22 and is hereinafter referred to as
the "Warrant."
Effective November 13, 2004, SCC issued Five-Year Subordinated Promissory Notes
to certain of the Noteholders and on December 22, 2004, SCC issued a Five-Year
Subordinated Promissory Note to each of the Noteholders, all as set forth in the
schedule attached hereto as Schedule A. Each of such notes is referred to herein
as a "Note" and together they are referred to as the "Notes."
On December 22, 2004 SCC also issued a Five-Year Subordinated Promissory Note to
Hare in the principal amount of one million four hundred four thousand seven
hundred fifty-eight dollars ($1,404,758) (the "Hare Note.")
1. CONSIDERATION. The parties now wish to enter into various transactions
with respect to the Warrant, the Notes and the Hare Note 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. THE WARRANT.
2.1 The first sentence of Section 1 of the Warrant is hereby
amended in its entirety to read as follows:
"Subject to the terms and conditions set forth herein
and except as provided below, this Warrant shall be
exercisable in whole or in part during the term
commencing on the date that is forty-two (42) months
after July 13, 2001 and ending at 5:00 p.m., Eastern
Time on July 13, 2011, and shall be void thereafter."
2.2 On or before March 31, 2005, Hare shall exercise the entire
Warrant as so amended and shall pay to SCC by wire transfer of
immediately available funds the Warrant exercise price of one
dollar and fifty cents ($1.50) per share, aggregating
$483,991.50.
Page 1 of 3
3. THE NOTES. Simultaneously with the execution of this Agreement, each of
the Noteholders will execute the form of note amendment attached hereto as
Exhibit A (the "Note Amendment") for each Note then held by him or her.
4. THE HARE NOTE.
4.1 On the earlier of March 31, 2005 and the date of receipt of
the funds described in Section 2.2, above, SCC will prepay one
million twenty-seven thousand six hundred three dollars
($1,027,603) of the principal of the Hare Note; and
4.2 On or before June 30, 2005, SCC will pre-pay the then
outstanding balance of the Hare Note together with all accrued
but unpaid interest thereon, whereupon Hare shall return the
Hare Note to SCC for cancellation.
5. 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.
6. MISCELLANEOUS.
6.1 This Agreement and any attachments referred to herein set
forth the full and complete understanding of the parties with
respect to the matters herein; shall not be amended except by
written agreement of the parties signed by each of them; and
shall be binding upon, and inure to the benefit of, the
parties and their successors, personal representatives and
assigns.
6.2 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 at least one counterpart) each of which counterparts
shall be enforceable against the party or parties actually
executing the counterpart, and all of which counterparts
together shall constitute but one and the same agreement. 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.
6.3 This Agreement shall not become effective or binding on any
party until --
(a) It has been executed and delivered by all of the
individuals and entities listed on the signature page
hereof; and
(b) Each Noteholder shall have executed and delivered the
Note Amendment with respect to each of his or her Note
or Notes, and SCC has executed and delivered each such
Note Amendment.
[The balance of this page is intentionally left blank]
Note and Warrant Amendment Agreement
Page 2 of 3
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first set forth above.
STERLING CONSTRUCTION COMPANY, INC. HARE & CO. A/C BANK OF NEW YORK BY: X
X XXXXXX CAPITAL MANAGEMENT
By: /s/ Xxxx X. Xxxxxxxxx By: /s/ X. X. Xxxxxx
---------------------------------- --------------------------------
Xxxx X. Xxxxxxxxx Name: X. X. Xxxxxx
Chairman of the Audit Committee Title: Director, X X Xxxxxx Capital
Management Ltd as
investor manager
NOTEHOLDERS
/s/ Xxxxx X. Xxxxxxx /s/ Maarten X. Xxxxxxx
-------------------------------------- --------------------------------
Xxxxx X. Xxxxxxx Maarten X. Xxxxxxx
/s/ Xxxxxxx X. Xxxxxxx /s/ Xxxxxx X. Xxxxxx
-------------------------------------- --------------------------------
Xxxxxxx X. Xxxxxxx Xxxxxx X. Xxxxxx
/s/ Xxxxx Xxxxxxx
--------------------------------------
Xxxxx Xxxxxxx
/s/ Xxxxxx X. Xxxxxx, Xx.
--------------------------------------
Xxxxxx X. Xxxxxx, Xx.
/s/ Xxxxxx X. Xxxxxx, Xx.
--------------------------------------
Xxxxxx X. Xxxxxx, Xx.
/s/ Xxxxx X. Xxxxxxxxxx
--------------------------------------
Xxxxx X. Xxxxxxxxxx
/s/ Xxxxxxx X. Xxxxxxx
--------------------------------------
Xxxxxxx X. Xxxxxxx
/s/ Xxxxx X. Xxxxxxx
--------------------------------------
Xxxxx X. Xxxxxxx
/s/ Xxxxx X. Xxxxxxx
--------------------------------------
Xxxxx X. Xxxxxxx
/s/ Xxxxxxx Xxxxxxx
--------------------------------------
Xxxxxxx Xxxxxxx
Note and Warrant Amendment Agreement
Page 3 of 3
