sv3za
As filed with the Securities and Exchange Commission on
June 5, 2006
Registration
No. 333-134535
UNITED STATES SECURITIES AND
EXCHANGE COMMISSION
Washington, D.C.
20549
Amendment No. 1
to
Form S-3
REGISTRATION
STATEMENT
UNDER
THE SECURITIES ACT OF
1933
Sterling Construction Company,
Inc.
(Exact name of registrant as
specified in its charter)
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Delaware
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1600
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25-1655321
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(State or other jurisdiction
of
incorporation or organization)
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(Primary standard industrial
classification code number)
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(I.R.S. employer
identification number)
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20810 Fernbush Lane
Houston, Texas 77073
(281) 821-9091
(Address, including zip code,
and telephone number, including area code, of registrants
principal executive offices)
Patrick T. Manning
Chief Executive Officer
20810 Fernbush Lane
Houston, Texas 77073
(281) 821-9091
(Name, address, including zip
code, and telephone number, including area code, of agent for
service)
With a copy to:
Geoffrey K. Walker
Andrews Kurth LLP
600 Travis, Suite 4200
Houston, Texas 77002
Telephone: (713) 220-4757
Facsimile: (713) 238-7433
Approximate date of commencement of proposed sale to the
public: As soon as practicable after the effective date of
this Registration Statement.
If the only securities being registered on this Form are being
offered pursuant to dividend or interest reinvestment plans,
please check the following
box. o
If any of the securities being registered on this Form are to be
offered on a delayed or continuous basis pursuant to
Rule 415 under the Securities Act of 1933, check the
following box. þ
If this Form is filed to register additional securities for an
offering pursuant to Rule 462(b) under the Securities Act,
please check the following box and list the Securities Act
registration statement number of the earlier effective
registration statement for the same
offering. o
If this Form is a post-effective amendment filed pursuant to
Rule 462(c) under the Securities Act, check the following
box and list the Securities Act registration statement number of
the earlier effective registration statement for the same
offering. o
If this Form is a registration statement pursuant to General
Instruction I.D. or a post-effective amendment thereto that
shall become effective upon filing with the Commission pursuant
to Rule 462(e) under the Securities Act, check the
following box. o
If this Form is a post-effective amendment to a registration
statement filed pursuant to General Instruction I.D. filed to
register additional securities or additional classes of
securities pursuant to Rule 413(b) under the Securities
Act, check the following box. o
CALCULATION OF REGISTRATION FEE
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Proposed Maximum
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Proposed Maximum
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Title of Each Class of
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Amount to be
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Offering
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Aggregate
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Amount of
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Securities to be
Registered
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Registered
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Price Per Share(1)
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Offering Price
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Registration Fee(2)
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Common Stock, par value $0.01 per
share, including associated rights attached thereto
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690,000
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$30.38
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$20,962,200
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$2,046
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(1)
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Estimated solely for the purpose of
calculating the registration fee pursuant to Rule 457(c)
under the Securities Act of 1933. The calculation of the
registration fee is based on the average of the high and low
price for the Common Stock on May 31, 2006 as reported by
Nasdaq.
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(2)
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A filing fee of $1,753 to register
600,000 shares of common stock was previously paid in
connection with the initial filing of this Form S-3.
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The Registrant hereby amends this Registration Statement on
such date or dates as may be necessary to delay its effective
date until the registrant shall file a further amendment which
specifically states that this Registration Statement shall
thereafter become effective in accordance with section 8(a)
of the Securities Act of 1933 or until the Registration
Statement shall become effective on such date as the Commission,
acting pursuant to said section 8(a), may determine.
The
information in this prospectus is not complete and may be
changed. We may not sell these securities until the registration
statement filed with the Securities and Exchange Commission is
effective. This prospectus is not an offer to sell these
securities and it is not soliciting an offer to buy these
securities in any jurisdiction where the offer or sale is not
permitted.
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SUBJECT TO COMPLETION, DATED
JUNE 5, 2006
PROSPECTUS
690,000 Shares
Sterling Construction Company,
Inc.
Common Stock
Selling stockholders of Sterling Construction Company, Inc.
named in this prospectus may sell shares of our common stock
offered by this prospectus.
The selling stockholders may sell shares of our common stock
from time to time at market prices, in negotiated transactions
or otherwise. The selling stockholders may sell the shares
directly or through underwriters, brokers or dealers. The
selling stockholders will pay commissions or discounts to
underwriters, brokers or dealers in amounts to be negotiated
prior to the sale. We will not receive any of the proceeds from
the sale of the shares by the selling stockholders. See
Plan of Distribution on page 4 for more
information on this topic.
Our common stock is quoted on The Nasdaq Stock Markets
National Market under the symbol STRL.
Investing in our common stock
involves risks, including those incorporated by reference herein
as described under Risk Factors on page 3 of
this prospectus.
Neither the Securities and Exchange Commission nor any state
securities commission has approved or disapproved of these
securities or has determined if this prospectus is truthful or
complete. Any representation to the contrary is a criminal
offense.
The date of this prospectus
is ,
2006
STERLING
CONSTRUCTION COMPANY, INC.
Sterling Construction Company, Inc. was founded in 1991 as a
Delaware corporation. Our construction business was founded in
1955 by a predecessor company in Michigan and is now operated by
one of our subsidiaries, Texas Sterling Construction, L.P., a
Texas limited partnership. The terms Company,
Sterling, and we refer to Sterling
Construction Company, Inc. and its subsidiaries except when it
is clear from the context that those terms mean only the parent
company.
Sterling is a leading heavy civil construction company that
specializes in the building and reconstruction of transportation
and water infrastructure in large and growing markets in Texas.
Our transportation infrastructure projects include highways,
roads, bridges and light rail, and our water infrastructure
projects include water, wastewater and storm drainage systems.
We provide general contracting services primarily to public
sector clients including excavating, paving, pipe installation
and concrete placement. We purchase the necessary materials for
our contracts; we currently perform approximately three-quarters
of the work required on our contracts with our own crews and
equipment, and generally engage subcontractors only for
ancillary services.
Since 1955 the construction business has expanded its service
profile and market areas. We currently operate in several major
Texas markets, including Houston, San Antonio,
Dallas/Fort Worth and Austin, and believe that we have the
capability to expand into other Gulf Coast and Southwestern
markets. We have also broadened our range of services, from our
original focus on water and wastewater projects, to include
concrete and asphalt paving, concrete slip forming, installation
of large-diameter water and wastewater distribution systems,
construction of bridges and similar large structures (including
the necessary drill-shafts), light rail infrastructure, concrete
crushing and concrete batch plant operations.
Our principal executive offices are located at 20810 Fernbush
Lane, Houston, Texas 77073, and our telephone number at this
address is
(281) 821-9091.
CAUTIONARY
COMMENT REGARDING FORWARD-LOOKING STATEMENTS
This prospectus includes statements that are, or may be
considered to be, forward-looking statements within
the meaning of Section 27A of the Securities Act of 1933,
as amended, or the Securities Act, and Section 21E of the
Securities Exchange Act of 1934, as amended, or the Exchange
Act. These forward-looking statements are included throughout
this prospectus and in the materials incorporated by reference
into this prospectus as described under the sections entitled
Risk Factors, Managements Discussion and
Analysis of Financial Condition and Results of Operations
and Business, and relate to matters such as our
industry, business strategy, goals and expectations concerning
our market position, future operations, margins, profitability,
capital expenditures, liquidity and capital resources and other
financial and operating information. We have used the words
anticipate, assume, believe,
budget, continue, could,
estimate, expect, forecast,
intend, may, plan,
potential, predict, project,
will, future and similar terms and
phrases to identify forward-looking statements in this
prospectus.
Forward-looking statements reflect our current expectations
regarding future events, results or outcomes. These expectations
may or may not be realized. Some of these expectations may be
based upon assumptions or judgments that prove to be incorrect.
In addition, our business and operations involve numerous risks
and uncertainties, many of which are beyond our control, that
could result in our expectations not being realized or otherwise
could materially affect our financial condition, results of
operations and cash flows.
Actual events, results and outcomes may differ materially from
our expectations due to a variety of factors. Although it is not
possible to identify all of these factors, they include, among
others, the following:
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changes in general economic conditions or reductions in
government funding for infrastructure services;
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adverse economic conditions in our markets;
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delays or difficulties related to the commencement or completion
of contracts, including additional costs, reductions in revenues
or the payment of completion penalties or liquidated damages;
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actions of suppliers, subcontractors, customers, competitors and
others which are beyond our control;
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the estimates inherent in our
percentage-of-completion
accounting policies;
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possible cost increases in fixed-price contracts;
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our dependence on a few significant customers;
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adverse weather conditions;
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the presence of competitors with greater financial resources
than we have and the impact of competitive services and pricing;
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our ability to successfully identify, complete and integrate
acquisitions; and
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the other factors incorporated by reference as described under
Risk Factors.
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In reading this prospectus, you should consider these factors
carefully in evaluating any forward-looking statements, and you
are cautioned not to place undue reliance on forward-looking
statements. Although we believe that our plans, intentions and
expectations reflected in, or suggested by, the forward-looking
statements that we make in this prospectus are reasonable, we
can provide no assurance that they will be achieved.
The forward-looking statements included herein are made only as
of the date of this prospectus, and we undertake no obligation
to update any information contained in this prospectus or to
publicly release the results of any revisions to any
forward-looking statements to reflect events or circumstances
that occur, or that we become aware of after the date of this
prospectus, except as may be required by applicable securities
laws.
2
RISK
FACTORS
Please carefully consider the risk factors described in our
periodic reports filed pursuant to the Exchange Act on
Form 10-K
and
Form 10-Q
with the Securities and Exchange Commission, or the SEC, which
are incorporated by reference in this prospectus, as well as
other information we include or incorporate by reference in this
prospectus. Additional risks and uncertainties not presently
known to us or that we currently deem immaterial may also impair
our business operations.
USE OF
PROCEEDS
We will not receive any proceeds from the shares sold by the
selling stockholders in this offering. We anticipate receiving
cash of $86,250 from the exercise of stock options underlying
shares offered by one of the selling stockholders.
SELLING
STOCKHOLDERS
The following table sets forth information regarding the selling
stockholders and the number of shares of common stock each
selling stockholder is offering. Under the rules of the SEC,
beneficial ownership includes shares over which the indicated
person exercises voting or investment power. Unless otherwise
indicated in the footnotes below, we believe the persons named
in the table below have sole voting and investment power with
respect to all shares beneficially owned by them. The
information regarding shares beneficially owned after the
offering assumes the sale of all shares offered by each selling
stockholder. The percentage ownership data is based on
10,499,808 shares of our common stock issued and
outstanding as of May 1, 2006 and 10,691,808 shares
outstanding after the offering, reflecting 192,000 options
expected to be exercised by Mr. Hemsley. Unless otherwise
indicated by footnote, the address of each selling stockholder
is the address of the Companys principal executive offices.
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Shares Beneficially Owned Before
the Offering
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Number of Shares
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Shares Beneficially Owned After
the Offering
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Name
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Number
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Percent
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Being Offered
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Number
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Percent
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Joseph P. Harper, Sr.(1)
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819,641
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7.8%
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230,000
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589,641
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5.4%
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Maarten D. Hemsley(2)
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519,812
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4.8%
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172,500
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347,312
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3.2%
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James D. Manning(3)
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557,602
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5.3%
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172,500
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385,102
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3.6%
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Patrick T. Manning(4)
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236,380
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2.3%
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115,000
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121,380
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1.1%
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(1) |
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The number of shares beneficially owned before and after the
offering includes options to purchase 10,700 shares and
warrants to purchase 127,574 shares of our common stock,
which are exercisable within sixty days of May 1, 2006.
Mr. Harper is our President and Chief Operating Officer and
serves on our board of directors. |
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The number of shares beneficially owned before the offering
includes options to purchase 438,924 shares of common
stock. Mr. Hemsley plans to exercise 192,000 of these
options simultaneously with this offering. Therefore, the number
of shares beneficially owned after the offering includes options
to purchase 246,924 shares of common stock, which are
exercisable within sixty days of May 1, 2006.
Mr. Hemsley is our Chief Financial Officer and serves on
our board of directors. |
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The number of shares beneficially owned before and after the
offering includes options to purchase 7,701 shares and
warrants to purchase 111,407 shares of our common stock,
which are exercisable within sixty days of May 1,
2006. James D. Manning, a founder of our construction business,
is the brother of Patrick T. Manning. |
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The number of shares beneficially owned before and after the
offering includes options to purchase 7,160 shares and
warrants to purchase 22,220 shares of our common stock,
which are exercisable within sixty days of May 1,
2006. Patrick T. Manning is our Chairman of the Board and Chief
Executive Officer. He is the brother of James D. Manning, a
founder of our construction business. |
3
PLAN OF
DISTRIBUTION
We are registering shares of common stock on behalf of the
selling stockholders, and we anticipate keeping this
registration statement effective for a period of up to two years
from its effective date. Selling stockholders
includes donees, pledgees, transferees or
successors-in-interest
selling securities received from a named selling stockholder as
a gift, pledge or other non-sale related transfer after the date
of this prospectus. All costs, expenses and fees, including
brokerage commissions and similar selling expenses, if any, in
connection with the registration of the shares of common stock
offered by this prospectus and the sale of shares will be borne
by the selling stockholders. Sales of shares may be effected by
the selling stockholders from time to time in one or more types
of transactions, including:
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block transactions;
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on the NASDAQ National Market System;
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in the
over-the-counter
market;
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in negotiated transactions;
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through put or call option transactions relating to the shares;
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through short sales of shares,
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a combination of these methods of sale; and
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through any lawful manner.
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The selling stockholders may sell shares directly to purchasers
or to or through underwriters or broker-dealers, who may act as
agents or principals. The underwriters or broker-dealers may
receive compensation in the form of discounts, concessions or
commissions from the selling stockholders
and/or the
purchasers of shares for whom the underwriters or broker-dealers
may act as agents or to whom they sell as principal, or both.
The amount and form of compensation for these services will be
determined by, and paid by, the selling stockholders and the
purchaser or purchasers, and may be in excess of customary
commissions. In connection with NASD guidelines, the maximum
compensation payable to any underwriter in connection with the
sale of shares pursuant to this prospectus and any prospectus
supplement will not exceed 8% of the total offering price to the
public.
The selling stockholders and any underwriters or broker-dealers
that act in connection with the sale of shares might be deemed
to be underwriters within the meaning of
Section 2(a)(11) of the Securities Act, and any commissions
received by these underwriters or broker-dealers and any profit
on the resale of the shares sold by them while acting as
principals might be deemed to be underwriting discounts or
commissions under the Securities Act. The selling stockholders
may agree to indemnify any underwriter, agent, or broker-dealer
that participates in transactions involving sales of the shares
against specified liabilities, including liabilities arising
under the Securities Act.
Because selling stockholders may be deemed to be
underwriters within the meaning of
Section 2(a)(11) of the Securities Act, the selling
stockholders will be subject to the prospectus delivery
requirements of the Securities Act, which may include delivery
through the facilities of the Nasdaq National Market System
pursuant to Rule 153 under the Securities Act. The Company
has informed the selling stockholders that the anti-manipulative
provisions of Regulation M of the Exchange Act may apply to
their sales in the market.
In addition to selling their shares under this prospectus, the
selling stockholders also may resell all or a portion of their
shares in open market transactions in reliance upon
Rule 144 under the Securities Act, provided they meet the
criteria and conform to the requirements of that rule.
4
If the selling stockholders notify us of any material
arrangement entered into with an underwriter or broker-dealer
for the sale of shares through a block trade, special offering,
exchange distribution or secondary distribution or a purchase by
a broker or dealer, a supplement to this prospectus will be
filed, if required, under Rule 424(b) under the Securities
Act, disclosing
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the name of each such selling stockholder and of the
participating underwriter or broker-dealer;
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the number of shares involved;
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the price at which the shares were sold;
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the commissions paid or discounts or concessions allowed to the
underwriter or, broker-dealer; and
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other facts material to the transaction.
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In addition, if we are notified by a selling stockholder that a
donee, pledgee, transferee or other
successor-in-interest
intends to sell more than 500 shares, a supplement to this
prospectus will be filed.
LEGAL
MATTERS
The validity of the shares of common stock offered in this
prospectus will be passed upon for us by Andrews Kurth LLP,
Houston, Texas.
EXPERTS
The consolidated financial statements incorporated in this
prospectus by reference to our annual report on
Form 10-K
for the year ended December 31, 2005 have been so
incorporated in reliance on the report of Grant Thornton LLP, an
independent registered public accounting firm, given on the
authority of said firm as experts in auditing and accounting.
WHERE YOU
CAN FIND MORE INFORMATION
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
We are subject to the reporting requirements of the Exchange Act
and file reports, proxy statements and other information with
the SEC. We have filed with the SEC a registration statement to
register the common stock offered by this prospectus. This
prospectus, which forms part of the registration statement, does
not contain all of the information included in the registration
statement. For further information about us and the common stock
offered in this prospectus, you should refer to the registration
statement and its exhibits. You may read and copy the
registration statement and any other document that we file with
the SEC at the SECs Public Reference Room, 100 F Street,
NE, Washington, D.C. 20549. Please call the SEC at
1-800-SEC-0330
for further information on the operation of the Public Reference
Room. In addition, the SEC maintains a web site that contains
registration statements, reports, proxy statements and other
information regarding registrants, such as us, that file
electronically with the SEC. The address of the web site is
www.sec.gov.
The SEC allows us to incorporate by reference the
information we file with the SEC, which means we can disclose
information to you by referring to those documents. The
information incorporated by reference is an important part of
this prospectus, and information we file later with the SEC will
automatically update and take the place of this information. We
are incorporating by reference in this prospectus the following
documents filed with the SEC under the Exchange Act (other than
any portions of the respective filings that were furnished
pursuant to Item 2.02 or 7.01 of Current Reports on
Form 8-K
or other applicable SEC rules):
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Annual Report on
Form 10-K
for the year ended December 31, 2005;
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Quarterly Report on
Form 10-Q
for the period ended March 31, 2006;
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Current Reports on
Form 8-K,
as filed with the SEC on January 3, 2006 (two),
January 6, 2006, January 20, 2006, March 20,
2006, March 21, 2006 and May 16, 2006; and
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The description of our common stock contained in our
registration statement on Form 8A, filed on
January 11, 2006, including any amendment or report
updating the description.
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In addition, we incorporate by reference all documents we will
file with the SEC in the future under Sections 13, 14 or
15(d) of the Exchange Act until the termination of this
offering. We refer to these documents, and the documents listed
above, in this prospectus as incorporated documents.
You may request, without charge, a copy of any incorporated
document (excluding exhibits, unless we have specifically
incorporated an exhibit in an incorporated document) by writing
or telephoning us at our principal executive offices at the
following address:
Sterling
Construction Company, Inc.
Attention: Corporate Secretary
20810 Fernbush Lane
Houston, Texas 77073
(281) 821-9091
6
PART II
INFORMATION
NOT REQUIRED IN PROSPECTUS
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Item 14.
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Other
Expenses of Issuance and Distribution
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The following table sets forth the various expenses, all of
which will be borne by the selling stockholders, in connection
with the sale and distribution of the securities being
registered, other than the estimated underwriting discounts and
commissions. All amounts shown are estimates except for the SEC
registration fee.
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SEC registration fee
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$
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1,753
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Transfer agent and registrar fees
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$
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1,000
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Accounting fees and expenses
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$
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20,000
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Legal fees and expenses
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$
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60,000
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Miscellaneous
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$
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15,000
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Total
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$
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97,753
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Item 15.
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Indemnification
of Directors and Officers
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We are a Delaware corporation. Section 145 of the Delaware
General Corporation Law, or the DGCL, authorizes a court to
award, or a corporations board of directors to grant,
indemnity under certain circumstances to directors, officers,
employees or agents in connection with actions, suits or
proceedings, by reason of the fact that the person is or was a
director, officer, employee or agent, against expenses and
liabilities incurred in such actions, suits or proceedings so
long as they acted in good faith and in a manner the person
reasonably believed to be in, or not opposed to, the best
interests of the company, and with respect to any criminal
action if they had no reasonable cause to believe their conduct
was unlawful. With respect to suits by or in the right of such
corporation, however, indemnification is generally limited to
attorneys fees and other expenses actually and reasonably
incurred and is not available if such person is adjudged to be
liable to such corporation unless the court determines that
indemnification is appropriate.
As permitted by the DGCL, our restated and amended certificate
of incorporation, as amended, includes a provision that
eliminates the personal liability of our directors to us or our
stockholders for monetary damages for breach of fiduciary duty
as a director, except for liability:
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for any breach of the directors duty of loyalty to us or
our stockholders;
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for acts or omissions not in good faith or that involve
intentional misconduct or a knowing violation of law;
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under section 174 of the DGCL regarding unlawful dividends
and stock purchases; or
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for any transaction for which the director derived an improper
personal benefit.
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As permitted by the DGCL, our restated and amended certificate
of incorporation, as amended, provides that:
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we are required to indemnify our directors and officers to the
fullest extent permitted by Delaware law, subject to very
limited exceptions;
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we may indemnify our other employees and agents to the fullest
extent permitted by Delaware law, subject to very limited
exceptions;
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we are required to advance expenses as incurred to our directors
and officers in connection with a legal proceeding to the
fullest extent permitted by the DGCL, subject to very limited
exceptions;
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we may advance expenses, as incurred, to our employees and
agents in connection with a legal proceeding; and
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the rights conferred in our certificate of incorporation are not
exclusive.
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II-1
The indemnification provisions in our restated and amended
certificate of incorporation, as amended, may be sufficiently
broad to permit indemnification of our directors and officers
for liabilities arising under the Securities Act.
Under Delaware law, corporations also have the power to purchase
and maintain insurance for directors, officers, employees and
agents. Sterling Construction Company, Inc. and its subsidiaries
are covered by liability insurance policies which indemnify our
directors and officers against loss arising from claims by
reason of their legal liability for acts as such directors,
officers or trustees, subject to limitations and conditions as
set forth in the policies.
The foregoing discussion of our restated and amended certificate
of incorporation, as amended, and Delaware law is not intended
to be exhaustive and is qualified in its entirety by such
certificate of incorporation or law.
The exhibits listed on the Exhibit Index to this
Registration Statement are hereby incorporated by reference.
a. The undersigned registrant hereby undertakes:
1. To file, during any period in which offers or sales are
being made, a post-effective amendment to this registration
statement:
i. To include any prospectus required by
section 10(a)(3) of the Securities Act of 1933;
ii. To reflect in the prospectus any facts or events
arising after the effective date of the registration statement
(or the most recent post-effective amendment thereof) which,
individually or in the aggregate, represent a fundamental change
in the information set forth in the registration statement.
Notwithstanding the foregoing, any increase or decrease in
volume of securities offered (if the total dollar value of
securities offered would not exceed that which was registered)
and any deviation from the low or high end of the estimated
maximum offering range may be reflected in the form of
prospectus filed with the Commission pursuant to
Rule 424(b) if, in the aggregate, the changes in volume and
price represent no more than a 20% change in the maximum
aggregate offering price set forth in the Calculation of
Registration Fee table in the effective registration
statement.
iii. To include any material information with respect to
the plan of distribution not previously disclosed in the
registration statement or any material change to such
information in the registration statement;
provided however, that paragraphs (a)(1)(i), (a)(1)(ii) and
(a)(1)(iii) of this section do not apply if the registration
statement is on
Form S-3
and the information required to be included in a post-effective
amendment by those paragraphs is contained in reports filed with
or furnished to the Commission by the registrant pursuant to
section 13 or section 15(d) of the Securities Exchange
Act of 1934 that are incorporated by reference in the
registration statement, or is contained in a form of prospectus
filed pursuant to Rule 424(b) that is part of the
registration statement.
2. That, for the purpose of determining any liability under
the Securities Act of 1933, each such post-effective amendment
shall be deemed to be a new registration statement relating to
the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona
fide offering thereof.
3. To remove from registration by means of a post-effective
amendment any of the securities being registered which remain
unsold at the termination of the offering.
II-2
4. That, for the purpose of determining liability under the
Securities Act of 1933 to any purchaser:
i. Each prospectus filed by the registrant pursuant to
Rule 424(b)(3) shall be deemed to be part of the
registration statement as of the date the filed prospectus was
deemed part of and included in the registration
statement; and
ii. Each prospectus required to be filed pursuant to
Rule 424(b)(2), (b)(5), or (b)(7) as part of a registration
statement in reliance on Rule 430B relating to an offering
made pursuant to Rule 415(a)(1)(i), (vii) or
(x) for the purpose of providing the information required
by section 10(a) of the Securities Act of 1933 shall be
deemed to be part of and included in the registration statement
as of the earlier of the date such form of prospectus is first
used after effectiveness or the date of the first contract of
sale of securities in the offering described in the prospectus.
As provided in Rule 430B, for liability purposes of the
issuer and any person that is at that date an underwriter, such
date shall be deemed to be a new effective date of the
registration statement relating to the securities in the
registration statement to which that prospectus relates, and the
offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof. Provided, however, that
no statement made in a registration statement or prospectus that
is part of the registration statement or made in a document
incorporated or deemed incorporated by reference into the
registration statement or prospectus that is part of the
registration statement will, as to a purchaser with a time of
contract of sale prior to such effective date, supersede or
modify any statement that was made in the registration statement
or prospectus that was part of the registration statement or
made in any such document immediately prior to such effective
date.
5. That, for the purpose of determining liability of the
registrant under the Securities Act of 1933 to any purchaser in
the initial distribution of the securities:
The undersigned registrant undertakes that in a primary offering
of securities of the undersigned registrant pursuant to this
registration statement, regardless of the underwriting method
used to sell the securities to the purchaser, if the securities
are offered or sold to such purchaser by means of any of the
following communications, the undersigned registrant will be a
seller to the purchaser and will be considered to offer or sell
such securities to such purchaser:
i. Any preliminary prospectus or prospectus of the
undersigned registrant relating to the offering required to be
filed pursuant to Rule 424;
ii. Any free writing prospectus relating to the offering
prepared by or on behalf of the undersigned registrant or used
or referred to by the undersigned registrant;
iii. The portion of any other free writing prospectus
relating to the offering containing material information about
the undersigned registrant or its securities provided by or on
behalf of the undersigned registrant; and
iv. Any other communication that is an offer in the
offering made by the undersigned registrant to the purchaser.
b. The undersigned registrant hereby undertakes that, for
purposes of determining any liability under the Securities Act
of 1933, each filing of the registrants annual report
pursuant to section 13(a) or section 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each
filing of an employee benefit plans annual report pursuant
to section 15(d) of the Securities Exchange Act of
1934) that is incorporated by reference in the registration
statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of
such securities at that time shall be deemed to be the initial
bona fide offering thereof.
c. Insofar as indemnification for liabilities arising under
the Securities Act of 1933 may be permitted to directors,
officers and controlling persons of the registrant pursuant to
the foregoing provisions, or otherwise, the registrant has been
advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as
expressed in the Act and is, therefore, unenforceable. In the
event that a claim for indemnification against such liabilities
(other than the payment by the registrant of expenses incurred
or paid by a director, officer or controlling person of the
registrant in the successful defense of any action, suit or
proceeding) is
II-3
asserted by such director, officer or controlling person in
connection with the securities being registered, the registrant
will, unless in the opinion of its counsel the matter has been
settled by controlling precedent, submit to a court of
appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in
the Act and will be governed by the final adjudication of such
issue.
d. The undersigned registrant hereby undertakes that:
1. For purposes of determining any liability under the
Securities Act of 1933, the information omitted from the form of
prospectus filed as part of this registration statement in
reliance upon Rule 430A and contained in a form of
prospectus filed by the registrant pursuant to Rule 424(b)
(1) or (4) or 497(h) under the Securities Act shall be
deemed to be part of this registration statement as of the time
it was declared effective.
2. For the purpose of determining any liability under the
Securities Act of 1933, each post-effective amendment that
contains a form of prospectus shall be deemed to be a new
registration statement relating to the securities offered
therein, and the offering of such securities at that time shall
be deemed to be the initial bona fide offering thereof.
II-4
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant has duly caused this Registration Statement to be
signed on its behalf by the undersigned, thereunto duly
authorized, in Houston, Texas, on this 2nd day of June,
2006.
STERLING CONSTRUCTION COMPANY, INC.
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By:
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/s/ Joseph
P. Harper, Sr.
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Name: Joseph P. Harper, Sr.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons
in the capacities held on the dates indicated.
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Signature
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Title
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Date
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*
Patrick
T. Manning
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Chairman of the Board of
Directors;
Chief Executive Officer
(Principal Executive Officer)
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June 2, 2006
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/s/ Joseph
P. Harper, Sr.
Joseph
P. Harper, Sr.
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President & Chief
Operating Officer; Director
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June 2, 2006
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*
Maarten
D. Hemsley
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Chief Financial Officer;
Director
(Principal Financial Officer)
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June 2, 2006
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*
Karen
A. Stempinski
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Vice President, Controller and
Chief Accounting Officer
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June 2, 2006
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*
John
D. Abernathy
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Director
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June 2, 2006
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*
Milton
L. Scott
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Director
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June 2, 2006
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*
Robert
W. Frickel
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Director
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June 2, 2006
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Christopher
H. B. Mills
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Director
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June 2, 2006
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David
R. A. Steadman
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Director
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June 2, 2006
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*By:
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/s/ Joseph
P. Harper, Sr.
Joseph
P. Harper, Sr.
Attorney-in-Fact
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II-5
EXHIBIT INDEX
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Number
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Exhibit Title
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4
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.1
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Restated and Amended Certificate
of Incorporation of Oakhurst Company, Inc., dated as of
September 25, 1995 (incorporated by reference to
Exhibit 3.1 to Sterling Construction Company, Inc.s
Registration Statement on
Form S-1,
filed on November 17, 2005 (SEC File
number 333-129780))
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4
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.2
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Certificate of Amendment of the
Certificate of Incorporation of Oakhurst Company, Inc., dated as
of November 12, 2001 (incorporated by reference to
Exhibit 3.2 to Sterling Construction Company, Inc.s
Registration Statement on
Form S-1,
filed on November 17, 2005 (SEC File
number 333-129780))
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4
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.3
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Bylaws of Oakhurst Company, Inc.
(incorporated by reference to Exhibit 3.2 to its Annual
Report on
Form 10-K
for the fiscal year ended February 28, 1998, filed on
May 29, 1998 (SEC File No. 000-19450))
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4
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.4
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Certificate of Designations of
Oakhurst Company, Inc.s Series A Junior Participating
Preferred Stock, dated as of February 10, 1998
(incorporated by reference to Exhibit 4.2 to its Annual
Report on
Form 10-K,
filed on May 29, 1998 (SEC File No. 000-19450))
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4
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.5
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Rights Agreement, dated as of
December 29, 1998, by and between Oakhurst Company, Inc.
and American Stock Transfer & Trust Company, including
the form of Series A Certificate of Designation, the form
of Rights Certificate and the Summary of Rights attached thereto
as Exhibits A, B and C, respectively (incorporated by
reference to Exhibit 99.1 to Oakhurst Company, Inc.s
Registration Statement on
Form 8-A,
filed on January 5, 1999 (SEC File No. 000-19450))
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4
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.6
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Form of Common Stock Certificate
of Sterling Construction Company, Inc. (incorporated by
reference to Exhibit 4.5 to its
Form 8-A,
filed on January 11, 2006 (SEC File No. 011-31993))
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5
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.1
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Opinion of Andrews Kurth LLP
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23
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.1
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Consent of Grant Thornton LLP,
registered public accounting firm
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23
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.2
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Consent of Andrews Kurth LLP
(included in Exhibit 5.1)
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24
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.1
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Power of Attorney (previously
filed)
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II-6