Exhibit
10.4


 


SUBSCRIPTION
AGREEMENT


 


DATED AS
OF DECEMBER 22, 2003


 


BY AND
AMONG


 


GLDD
ACQUISITIONS CORP.


 


AND THE
PURCHASERS LISTED ON


 


THE
SCHEDULE OF PURCHASERS


 


ATTACHED
HERETO


 


i

















 


GLDD
ACQUISITIONS CORP.


 


SUBSCRIPTION
AGREEMENT


 


THIS AGREEMENT is made as of December 22, 2003, by and
among GLDD Acquisitions Corp., a Delaware corporation (the “Company”),
and the Persons set forth on the “Schedule of Purchasers” attached
hereto (hereinafter referred to collectively as the “Purchasers” and
individually as a “Purchaser”). 
The Purchasers will purchase, severally and not jointly, the Securities
listed on the Schedule of Purchasers attached hereto.  Capitalized terms used, but not otherwise
defined herein, are defined in Section 9 hereof.


 


The parties hereto agree
as follows:


 


Section 1.               Authorization
and Closing.


 


1A.          Authorization
of the Securities.  The Company will
(prior to Closing, as defined below) authorize the issuance and sale to the
Purchasers of (i) an aggregate of 84,625 shares of the Company’s Series A
Preferred Stock, par value $0.01 per share (the “Preferred Stock”),
having the rights and preferences set forth in the Amended and Restated
Certificate of Incorporation attached hereto as Exhibit A (the “Certificate
of Incorporation”), at a purchase price of $1,000 per share, and (ii) an
aggregate of 850,000 shares of the Company’s Common Stock, par value $0.01 per
share (the “Common Stock”), at a purchase price of $10 per share.  The Preferred Stock and the Common Stock are
sometimes collectively referred to herein as “Securities”.


 


1B.          Purchase
of Securities.   On the basis of the
representations, warranties, covenants and agreements set forth herein, at the
Closing, the Company will sell to each Purchaser, and, subject to the terms and
conditions set forth herein, each Purchaser will purchase from the Company, the
Securities set forth beside such Purchaser’s name on the Schedule of
Purchasers attached hereto, at the purchase price per share set forth in Section
1 above.  The sale to and purchase
by each Purchaser of the Securities to be purchased by such Purchaser hereunder
will constitute a separate sale and purchase.


 


1C.          The
Closing.  The closing of the
purchase and sale of the Securities (the “Closing”) shall take place at
the offices of Kirkland & Ellis LLP, 200 East Randolph Drive, Chicago, IL
60601 simultaneously with the Closing of the Acquisition, as defined
below.  At the Closing, the Company
shall deliver to each Purchaser instruments evidencing the Securities to be
purchased by such Purchaser registered in the Purchaser’s name upon payment of
the purchase price thereof by wire transfer of immediately available funds in
the aggregate amount set forth on the Schedule of Purchasers to an
account specified by the Company prior to the Closing.


 


Section 2.               Conditions
of Each Purchaser’s Obligation at the Closing.  The obligation of each Purchaser to purchase and pay for the
Securities at the Closing is subject to the satisfaction as of the Closing of
the following conditions:


 


2A.          Representations
and Warranties; Covenants.  The
representations and warranties contained in Section 6 hereof shall
be true and correct in all material respects at and


 


1

















 


as of the Closing as though then made, except to the extent of changes
caused by the execution, delivery and performance of the agreements expressly
referred to in this Section 2, and the Company shall have performed in
all material respects all of the covenants and agreements required to be
performed by it hereunder prior to or at the Closing.


 


2B.          Amendment
of Certificate of Incorporation. 
The Company’s Certificate of Incorporation shall have been amended to
include the provisions set forth in Exhibit A hereto, shall be in full
force and effect under the laws of Delaware as of the Closing as so amended and
shall not have been further amended or modified.


 


2C.          Amendment
of the Company’s Bylaws.  The
Company’s Bylaws shall have been amended and restated in the form set forth in Exhibit
B hereto and shall be in full force and effect as of the Closing as so
amended and restated and shall not have been further amended or modified.


 


2D.          Registration
Rights Agreement.  The Company and
the Purchasers shall have entered into a registration rights agreement in form
and substance as set forth in Exhibit C attached hereto (the “Registration
Rights Agreement”), and the Registration Rights Agreement shall be in full
force and effect as of the Closing.


 


2E.           Management
Agreement.  The Company shall have
entered into a Management Equity Agreement, in form and substance as set forth
in Exhibit D attached hereto (the “Management Agreement”), and
the Management Agreement shall not have been amended or modified and shall be
in full force and effect as of the Closing.


 


2F.           Securities
Law Compliance.  The Company shall
have made all filings under all applicable federal and state securities laws
necessary to consummate the issuance of the Securities pursuant to this
Agreement in compliance with such laws.


 


2G.          Closing
Fee to MDP.  At the Closing, the
Company shall, or shall cause its Subsidiaries to, pay to Madison Dearborn
Capital Partners IV, L.P. (“MDP”) or its designee, a closing fee of
$3,570,000.


 


2H.          Merger
Agreement.  The Agreement and Plan
of Merger, dated as of November 12, 2003, among the Company, GLDD Merger Sub,
Inc., Great Lakes Dredge & Dock Corporation (“GLDD”) and Vectura
Holding Company LLC (the “Merger Agreement”), shall be in full force and
effect as of the Closing, and the Merger Agreement shall not have been amended
or modified in any material respect. 
The acquisition contemplated by the Merger Agreement (the “Acquisition”)
shall have been consummated without waiver of any condition to GLDD’s
obligations thereunder.


 


2I.            Bank
Agreement.  The Company, GLDD,
certain Subsidiaries of GLDD, Lehman Brothers Inc., Credit Suisse First Boston,
acting through its Cayman Islands Branch, Bank of America N.A., the financial
institutions from time to time party thereto, as lenders, GLDD and certain
Subsidiaries of GLDD shall have entered into that certain Credit Agreement and
related documents (collectively, the “Bank Agreement”) in form and
substance satisfactory


 


2

















 


to MDP and the Bank Agreement shall not have been amended or modified
and shall be in full force and effect as of the Closing.


 


2J.           HYD
Offering.  GLDD shall have received
not less than $170,000,000 in an offering of GLDD’s Senior Subordinated Notes
on terms reasonably satisfactory to MDP.


 


2K.          Closing
Documents.  The Company shall have
delivered to each Purchaser all of the following documents:


 


(i)            an Officer’s
Certificate, dated the date of the Closing, stating that the conditions
specified in Section 1, Sections 2A through 2J,
inclusive, and Sections 2L and 2N have been fully satisfied;


 


(ii)           certified copies of
(a) the resolutions duly adopted by the Company’s board of directors
authorizing the execution, delivery and performance of this Agreement, the
Registration Rights Agreement, the Management Agreement, the Merger Agreement,
the Bank Agreement, and each of the other agreements and instruments
contemplated hereby and thereby (collectively, the “Transaction Agreements”),
the filing of the amendment and restatement of the Certificate of Incorporation
referred to in Section 2B, the amendment and restatement of the
Company’s Bylaws referred to in Section 2C, the issuance and sale of the
Securities and the consummation of all other transactions contemplated by this
Agreement and the other Transaction Agreements (the “Transactions”), and
(b) the resolutions duly adopted by the Company’s stockholders adopting
the amendment and restatement of the Certificate of Incorporation referred to
in Section 2B;


 


(iii)          certified copies of
the Company’s Certificate of Incorporation and Bylaws, each as in effect at the
Closing;


 


(iv)          instruments
evidencing the Securities registered in each Purchaser’s name; and


 


(v)           copies of all third
party and governmental consents, approvals and filings required in connection
with the consummation of the Transactions (including all blue sky law filings).


 


2L.           Proceedings.  All corporate and other proceedings taken or
required to be taken by the Company in connection with the Transactions to be
consummated at or prior to the Closing and all documents incident thereto shall
be reasonably satisfactory in form and substance to MDP.


 


2M.         Compliance
with Applicable Laws.  The purchase
of the Securities by each Purchaser hereunder shall not be prohibited by any
applicable law or governmental rule or regulation.


 


2N.          Government
Consents; Waiting Periods.  The
Company shall have obtained all necessary government consents and approvals,
made all required governmental


 


3

















 


filings (including under the HSR Act), and all waiting periods
applicable under the HSR Act shall have expired or been terminated.


 


2O.          Waiver.  Any condition specified in this Section 2
may be waived on behalf of the Purchasers if consented to in writing by MDP.


 


Section 3.               Transfer
of Restricted Securities.


 


3A.          General
Provisions.  In addition to any
other restrictions on transfer to which such shares may be subject, Restricted
Securities are transferable only pursuant to (i) Public Offerings registered
under the Securities Act, (ii) Rule 144 or Rule 144A of the Securities and
Exchange Commission (or any similar rule or rules then in force) if such rule
is available and (iii) subject to the conditions specified in Section
3B below, any other legally available means of transfer.


 


3B.          Opinion
Delivery.  In connection with the
transfer of any Restricted Securities (other than a transfer described in Section
3A(i) or (ii) above), upon the request of the Company, the holder
thereof shall deliver written notice to the Company describing in reasonable
detail the transfer or proposed transfer, together with an opinion of
Kirkland & Ellis LLP or other counsel which (to the Company’s
reasonable satisfaction) is knowledgeable in securities law matters to the effect
that such transfer of Restricted Securities may be effected without
registration of such Restricted Securities under the Securities Act.  In addition, if the holder of the Restricted
Securities delivers to the Company an opinion of Kirkland & Ellis LLP
or such other counsel that no subsequent transfer of such Restricted Securities
shall require registration under the Securities Act, the Company shall promptly
upon such contemplated transfer deliver new certificates for such Restricted
Securities which do not bear the Securities Act legend set forth in Section
3C.  If the Company is not required
to deliver new certificates for such Restricted Securities not bearing such
legend, the holder thereof shall not transfer the same until the prospective
transferee has confirmed to the Company in writing its agreement to be bound by
the conditions contained in this Section 3.


 


3C.          Legend.  Each certificate or instrument representing
Restricted Securities shall be imprinted with a legend in substantially the
following form:


 


“The securities represented by this certificate were
originally issued on December 22, 2003, and have not been registered under the
Securities Act of 1933, as amended or any applicable state securities
laws.  The transfer of the securities
represented by this certificate is subject to the conditions specified in the
Subscription Agreement dated as of December 22, 2003, as amended and modified
from time to time, between the issuer (the “Company”) and certain
investors, and the Company reserves the right to refuse the transfer of such
securities until such conditions have been fulfilled with respect to such
transfer.  A copy of such conditions
shall be furnished by the Company to the holder hereof upon written request and
without charge.”


 


3D.          Legend
Removal.  If any Restricted
Securities become eligible for sale pursuant to Rule 144(k), the Company shall,
upon the request of the holder of such Restricted


 


4

















 


Securities, remove the legend set forth in Section 3C from the
certificates for such Restricted Securities.


 


3E.             Additional
Transfer Restrictions.  No Purchaser
shall transfer, sell or otherwise dispose (whether voluntarily, involuntarily
or by operation of law) of any Preferred Stock or Common Stock acquired
hereunder or hereafter acquired by any such Purchaser without the prior written
consent of MDP and any transfer, sale or disposition of Preferred Stock or
Common Stock in violation of this Section 3E shall be void ab initio.  As a condition to any such transfer, sale or disposition, the
Purchaser (or any transferee thereof) will cause the transferee or purchaser
thereof to execute a counterpart to this Agreement (and any other agreement
reasonably requested by MDP) and become party to this Agreement (and such other
agreements) as a Purchaser.


 


Section 4.               Sale
of the Company.


 


4A.          Approved
Sale.  If the Board and MDP approve
a Sale of the Company (the “Approved Sale”), all holders of Restricted
Securities shall consent to, vote for and raise no objections against the
Approved Sale, and if the Approved Sale is structured as a sale of stock, the
holders of Restricted Securities shall agree to sell their Restricted
Securities on the terms and conditions approved by the Board and MDP.  The holders of Restricted Securities shall
take all necessary and desirable actions in connection with the consummation of
the Approved Sale and shall not impair or delay the Approved Sale.  In furtherance of the foregoing, if the
Approved Sale is structured as (A) a merger or consolidation, each holder of
Restricted Securities shall vote its Restricted Securities to approve such
merger or consolidation, whether by written consent or at a stockholders
meeting (as requested by MDP), and waive all dissenter’s rights, appraisal
rights and similar rights in connection with such merger or consolidation, (B)
a sale of stock, each holder of Restricted Securities shall agree to sell, and
shall sell, all of its Restricted Securities and rights to acquire Restricted
Securities on the terms and conditions so approved, or (C) a sale of assets,
each holder of Restricted Securities shall vote its Restricted Securities to
approve such sale and any subsequent liquidation of the Company or other
distribution of the proceeds therefrom, whether by written consent or at a
stockholders meeting (as requested by MDP), and waive all dissenter’s rights,
appraisal rights and similar rights in connection with such sale of assets.


 


4B.          Additional
Obligations.  In furtherance of its
obligations under Section 4A above, (I) each holder of Restricted
Securities will take all necessary or desirable actions reasonably requested by
MDP in connection with the consummation of the Approved Sale and (II) each
holder of Restricted Securities will make the same representations, warranties,
indemnities and agreements as each other holder, including without limitation,
voting to approve such transaction and executing all documents requested by MDP
to be executed by such holder, including the applicable purchase agreement,
stockholders agreement and/or indemnification and/or contribution
agreement.  Without limiting the
generality of the foregoing, in any Approved Sale, (i) each holder of
Restricted Securities shall be obligated to make representations and warranties
as to such holder’s title to and ownership of Restricted Securities,
authorization, execution and delivery of relevant documents by such holder,
enforceability of relevant agreements against such holder and other matters
relating to such holder, to enter into covenants in respect of a transfer of
such holder’s Restricted Securities in connection with such Approved


 


5

















 


Sale (including, without limitation, the delivery of certificates,
stock powers and other instruments of transfer) and to enter into
indemnification obligations with respect to the foregoing, in each case to the
extent that each other holder of the same type of Restricted Securities is
similarly obligated; provided that no holder shall be obligated to enter
into indemnification obligations with respect to any of the foregoing to the
extent relating to any other holder of Restricted Securities or such other
holder’s Restricted Securities (other than, in the case of a Rollover Investor,
a transferee of such holder’s Restricted Securities), and (ii) in no event
shall any holder of Restricted Securities be liable in respect of any indemnity
obligations pursuant to any Approved Sale in an aggregate amount in excess of
the total consideration payable to such holder in such Approved Sale.


 


4C.          Conditions
to Obligations.  The obligations of
the holders of Restricted Securities with respect to the Approved Sale are
subject to the satisfaction of the following conditions:  (i) upon the consummation of the Approved
Sale, all of the holders of the Common Stock shall receive the same form and
amount of consideration per share of the Common Stock, or if any holders of the
Common Stock are given an option as to the form and amount of consideration to
be received, all holders shall be given the same option; and (ii) all
holders of then currently exercisable rights to acquire shares of the Common
Stock shall be given an opportunity to either (A) exercise such rights
prior to the consummation of the Approved Sale and participate in such sale as
holders of the Common Stock or (B) upon the consummation of the Approved
Sale, receive in exchange for such rights consideration equal to the amount
determined by multiplying (1) the same amount of consideration per share
of the Common Stock received by the holders of the Common Stock in connection
with the Approved Sale less the exercise price per share of the Common Stock of
such rights to acquire the Common Stock by (2) the number of shares of the
Common Stock represented by such rights.


 


4D.          Purchaser
Representative.  If the Company or
the holders of the Company’s securities enter into any negotiation or
transaction for which Rule 506 (or any similar rule then in effect)
promulgated by the Securities Exchange Commission may be available with respect
to such negotiation or transaction (including a merger, consolidation or other
reorganization), the holders of Restricted Securities shall, at the request of
the Company, appoint a “purchaser representative” (as such term is defined in
Rule 501) reasonably acceptable to the Company.  If any holder of Restricted Securities appoints a purchaser
representative designated by the Company, the Company shall pay the fees of
such purchaser representative.  However,
if any holder of Restricted Securities declines to appoint the purchaser
representative designated by the Company, such holder shall appoint another
purchaser representative (reasonably acceptable to the Company), and such
holder shall be responsible for the fees of the purchaser representative so
appointed


 


4E.           Cost
Sharing.  Each holder of Restricted
Securities shall bear his or her pro rata share (based upon the number of
shares sold) of the costs of any sale of Restricted Securities pursuant to an
Approved Sale to the extent such costs are incurred for the benefit of all
holders of the Common Stock and are not otherwise paid by the Company or the
acquiring party.  Costs incurred by each
such holder of Restricted Securities on his or her own behalf shall not be
considered costs of the transaction hereunder.


 


6

















 


Section 5.               Distributions
Upon Sale of the Company.  In the
event of a Sale of the Company (whether or not such Sale of the Company
constitutes an Approved Sale pursuant to Section 4 above), (a) each
holder of Restricted Securities shall receive in exchange for the Restricted
Securities held by such holder, the same portion of the aggregate consideration
from such sale or exchange that such holder of Restricted Securities would have
received if such aggregate consideration had been distributed by the Company in
complete liquidation pursuant to the rights and preferences set forth in the
Company’s certificate of incorporation as in effect immediately prior to such
sale or exchange (as reduced in the case of holders of rights to acquire any
class of Stockholder Shares by the exercise price per share thereof) and (b)
each holder of Restricted Securities shall be obligated to join in any
indemnification or other obligations that MDCP agrees to provide (including,
without limitation, by way of escrow or holdback of any sale proceeds) in
connection with such Sale of the Company (other than any such obligations that
relate specifically to a holder of Restricted Securities such as indemnification
with respect to representations and warranties given by a holder regarding such
holder’s title to and ownership of Restricted Securities), with such holders
bearing such liabilities or obligations with the same economic effect,
consistent with clause (a) of the foregoing, as if such liabilities or
obligations reduced the aggregated consideration payable to the Company’s
stockholders in such Sale of the Company prior to the consummation thereof;
provided, however, that in no case shall any such holder’s indemnity obligation
exceed the dollar value of the proceeds received by such holder in such Sale of
the Company.


 


Section 6.               Representations
and Warranties of the Company.  As a
material inducement to the Purchasers to enter into this Agreement and purchase
the Securities hereunder, the Company hereby represents and warrants to each
Purchaser as of the date hereof as follows:


 


6A.          Organization,
Corporate Power and Licenses.  The
Company is a corporation duly organized, validly existing and in good standing
under the laws of Delaware and is qualified to do business in every
jurisdiction in which the failure to so qualify would reasonably be expected to
have a material adverse effect on the financial condition, operating results,
assets, operations or business prospects of the Company and its Subsidiaries
taken as a whole.  The Company possesses
all requisite corporate power and authority and all material licenses, permits
and authorizations necessary to own and operate its properties, to carry on its
businesses as now conducted and presently proposed to be conducted and to carry
out the transactions contemplated by this Agreement (including, without
limitation, the issuance of the Securities hereunder).  The copies of the Company’s Certificate of
Incorporation and Bylaws which have been furnished to the Purchasers’ reflect
all amendments made thereto at any time prior to the date of this Agreement and
are correct and complete.


 


6B.          Capital
Stock and Related Matters.


 


(i)            As of the Closing
and immediately thereafter, the authorized capital stock of the Company shall
consist of (a) 100,000 shares of Preferred Stock, consisting of 90,000 shares
of Series A Preferred Stock and 10,000 shares of Series B Preferred Stock, and
(b) 1,500,000 shares of Common Stock.  The
attached Capitalization Schedule sets forth the ownership of the Company
as of and immediately after the Closing. 
As of the Closing, the Company shall not have outstanding (or any
commitments to issue) any stock or securities convertible or exchangeable for
any shares


 


7

















 


of its capital
stock or containing any profit participation features, nor shall it have
outstanding any rights or options to subscribe for or to purchase its capital
stock or any stock or securities convertible into or exchangeable for its
capital stock or any stock appreciation rights or phantom stock plans, except
as set forth on the attached Capitalization Schedule.  As of the Closing, the Company shall not be
subject to any obligation (contingent or otherwise) to repurchase or otherwise
acquire or retire any shares of its capital stock or any warrants, options or
other rights to acquire its capital stock except pursuant to the Management
Agreement.  As of the Closing, all of
the outstanding shares of the Company’s capital stock (including the Preferred
Stock and the Common Stock) shall be validly issued, fully paid and
nonassessable.


 


(ii)           There are no
statutory or, to the Company’s knowledge, contractual stockholders preemptive
rights or rights of refusal with respect to the issuance of the Securities
hereunder or any other capital stock or other securities of the Company, except
as set forth in the Management Agreement. 
Based upon the representations and warranties of the Purchasers set
forth herein and of management set forth in the Management Agreement, the
Company has not violated any applicable federal or state securities laws in
connection with the offer, sale or issuance of any of its capital stock or
other securities, and the offer, sale and issuance of the Securities hereunder
do not require registration under the Securities Act or any applicable state
securities laws.  To the Company’s
actual knowledge, there are no agreements between the Company’s stockholders
with respect to the voting or transfer of the Company’s capital stock or with
respect to any other aspect of the Company’s affairs, except for the Management
Agreement and the Registration Rights Agreement.  The Company has not granted any registration rights other than under
the Registration Rights Agreement.


 


6C.          Subsidiaries;
Investments.   Upon consummation of
the transactions contemplated in the Merger Agreement, the Company shall own
(directly or indirectly) all of the outstanding capital stock of GLDD.


 


6D.          Authorization;
No Breach.  The execution, delivery
and performance of this Agreement (including the issuance and delivery of the
Securities hereunder) and the other Transaction Agreements to which the Company
is a party, the amendment and restatement of the Company’s Certificate of
Incorporation and the amendment and restatement of the Company’s Bylaws have
been duly and validly authorized by the Company’s board of directors and (as
applicable) approved by the required vote of the Company’s stockholders.  This Agreement and the other Transaction
Agreements to which the Company is a party each constitutes a valid and binding
obligation of the Company, enforceable in accordance with its terms.  The execution and delivery by the Company of
this Agreement and the other Transaction Agreements to which the Company is a
party, the offering, sale and issuance of the Securities hereunder, the
amendment and restatement of the Certificate of Incorporation and the Company’s
Bylaws and the fulfillment of and compliance with the respective terms hereof
and thereof by the Company, do not and shall not (i) conflict with or
result in a breach of the terms, conditions or provisions of,
(ii) constitute a default under, (iii) result in the creation of any
lien, security interest, charge or encumbrance upon the Company’s capital stock
or assets pursuant to, (iv) give any third party the right to modify,
terminate or accelerate any obligation under, (v) result in a violation
of, or (vi) require any authorization, consent, approval, exemption or
other action by or notice or declaration to, or


 


8

















 


filing with, any court or administrative or governmental body or agency
or other Person pursuant to, the Certificate of Incorporation or Bylaws of the
Company, or any law, statute, rule or regulation to which the Company is
subject, or any agreement, instrument, order, judgment or decree to which the
Company is subject.


 


6E.           Conduct
of Business.  Except in connection
with the transactions contemplated hereby and by the Merger Agreement (and
before giving effect to the Acquisition), the Company has no assets, has not
conducted any business, incurred any material expenses, obligations or
liabilities or entered into any written contract, lease, license, agreement,
letter agreement or other instrument.


 


6F.           Litigation,
etc.  There are no actions, suits,
proceedings, orders, investigations or claims pending or, to the Company’s
knowledge, threatened against the Company or pending or threatened by the
Company against any third party, at law or in equity, or before or by any
governmental department, commission, board, bureau, agency or instrumentality
(including any actions, suit, proceedings or investigations with respect to the
transactions contemplated by this Agreement and the Transaction Agreements).


 


6G.          Brokerage.  There are no claims for brokerage
commissions, finders’ fees or similar compensation in connection with the
transactions contemplated by this Agreement based on any arrangement or
agreement binding upon the Company.


 


6H.          Governmental
Consent, etc. To the actual knowledge of the Company:  (i) no permit, consent, approval or
authorization of, or declaration to or filing with, any governmental authority
is required in connection with the execution, delivery and performance by the
Company of this Agreement or the other Transaction Agreements, or the
consummation by the Company of the Transactions and (ii) no permit, consent,
approval or authorization of, or declaration to or filing with, any governmental
authority was required in connection with the formation of the Company, other
than filing with the Delaware Secretary of State, except for the matters
disclosed in or contemplated by the Merger Agreement and except for filings
required under the HSR Act.


 


6I.            Solvency,
etc.  The Company is solvent as of
the date of this Agreement and shall not become insolvent as a result of the
consummation of the Transactions.  The
Company is, and after giving effect to the Transactions shall be, able to pay
its debts as they become due, and the Company’s property now has, and after
giving effect to the Transactions shall have, a fair salable value greater than
the amounts required to pay its debts (including a reasonable estimate of the
amount of all contingent liabilities). 
The Company has adequate capital to carry on its business, and after
giving effect to the Transactions, the Company shall have adequate capital to
conduct its business.  No transfer of
property is being made and no obligation is being incurred in connection with
the Transactions with the intent to hinder, delay or defraud either present or
future creditors of the Company.


 


6J.           Investment
Company.  The Company is not an
“investment company” as defined under the Investment Company Act of 1940, as
amended.


 


9

















 


6K.          Bank
Agreement.  As of the date hereof,
neither the Company nor any borrower or guarantor party to the Bank Agreement
is in breach of any representation or warranty contained therein.


 


Section 7.               Representations
and Warranties of the Purchasers.


 


7A.          Purchaser’s
Investment Representations.  As a
material inducement to the Company to enter into this Agreement and to sell the
Securities hereunder, each Purchaser represents and warrants (severally as to
itself only) to the Company as of the date hereof as follows:


 


(i)            Such Purchaser is
acquiring the Restricted Securities purchased hereunder for its own account
with the present intention of holding such securities for purposes of
investment, and that it has no intention of selling such securities in a public
distribution in violation of the federal securities laws or any applicable
state securities laws; provided that nothing contained herein shall prevent any
Purchaser and subsequent holders of Restricted Securities from transferring
such securities in compliance with the provisions of Section 3
hereof.


 


(ii)           Such Purchaser is
an “accredited investor” (as defined) under Regulation D under the
Securities Act, is sophisticated in financial matters and is able to evaluate
the risks and benefits of the investment in the Securities.


 


(iii)          Such Purchaser is
able to bear the economic risk of its investment in the Securities for an
indefinite period of time because the Securities have not been registered under
the Securities Act and, therefore, cannot be sold unless subsequently
registered under the 1933 Act or an exemption from such registration is
available.


 


(iv)          Such Purchaser has
had an opportunity to ask questions and receive answers concerning the terms
and conditions of the offering of Securities and has had full access to such
other information concerning the Company as it has requested. Such Purchaser
represents that such Purchaser has reviewed, or has had an opportunity to
review, a copy of the Merger Agreement, and Purchaser is familiar with the
transactions contemplated thereby. 
Purchaser has also reviewed, or has had an opportunity to review, the
following documents:  (A) the
Company’s Certificate of Incorporation and Bylaws as amended and in effect at
Closing; and (B) the loan agreements, notes and related documents with the
Company’s senior and subordinated lenders.


 


(v)           This Agreement
constitutes the legal, valid and binding obligation of such Purchaser,
enforceable in accordance with its terms, and the execution, delivery and
performance of this Agreement by such Purchaser does not and shall not conflict
with, violate or cause a breach of any agreement, contract or instrument to
which such Purchaser is a party or any judgment, order or decree to which such
Purchaser is subject.


 


(vi)          Such Purchaser is a
resident of the state indicated in its address as listed on the Schedule of
Purchasers.


 


10

















 


Section 8.               Covenants.


 


8A.          Financial
Statements and Other Information. 
The Company shall deliver to each holder of more than 15% of the
Restricted Securities acquired hereunder:


 


(i)            as soon as
available but in any event within 30 days after the end of each monthly
accounting period in each fiscal year, unaudited consolidating and consolidated
statements of income and cash flows of the Company and its Subsidiaries for
such monthly period and for the period from the beginning of the fiscal year to
the end of such month, and unaudited consolidating and consolidated balance
sheets of the Company and its Subsidiaries as of the end of such monthly
period, setting forth in each case comparisons to the Company’s annual budget
and to the corresponding period in the preceding fiscal year, and all such
items shall be prepared in accordance with generally accepted accounting
principles, consistently applied and shall be certified by a senior executive
officer of the Company;


 


(ii)           within 30 days
after the end of each quarterly accounting period in each fiscal year, an Officer’s
Certificate stating that neither the Company nor any of its Subsidiaries is in
default under any of its other material agreements or, if any such default
exists, specifying the nature and period of existence thereof and what actions
the Company and its Subsidiaries have taken and propose to take with respect
thereto;


 


(iii)          within 90 days
after the end of each fiscal year, consolidating and consolidated statements of
income, cash flows and shareholders’ equity of the Company and its Subsidiaries
for such fiscal year, and consolidating and consolidated balance sheets of the
Company and its Subsidiaries as of the end of such fiscal year, setting forth
in each case comparisons to the Company’s annual budget and to the preceding
fiscal year, all prepared in accordance with generally accepted accounting
principles, consistently applied, and accompanied by (a) with respect to the
consolidated portions of such statements, an opinion containing no material
exceptions or qualifications (except for qualifications regarding specified
contingent liabilities) of an independent accounting firm of recognized
national standing reasonably acceptable
to the Purchasers holding a majority of the outstanding Series A Preferred
Stock held by all of the Purchasers, (b) a certificate from such accounting
firm, addressed to the Company’s board of directors, stating that in the course
of its examination nothing came to its attention that caused it to believe that
there was any default by the Company or any Subsidiary in the fulfillment of or
compliance with any of the terms, covenants, provisions or conditions of any
material agreement to which the Company or any Subsidiary is a party or, if
such accountants have reason to believe any such default by the Company or any
Subsidiary exists, a certificate specifying the nature and period of existence
thereof, and (c) a copy of such firm’s annual management letter to the
Company’s board of directors;


 


(iv)          promptly upon
receipt thereof, any additional reports, management letters or other detailed
information concerning significant aspects of the Company’s or its
Subsidiaries’ operations or financial affairs given to the Company by its
independent accountants (and not otherwise contained in other materials
provided hereunder);


 


11

















 


(v)           at least 30 days but
not more than 90 days prior to the beginning of each fiscal year, an annual
budget prepared on a monthly basis for the Company and its Subsidiaries for
such fiscal year (displaying anticipated statements of income and cash flows
and balance sheets), and promptly upon preparation thereof any other
significant budgets prepared by the Company and any revisions of such annual or
other budgets;


 


(vi)          promptly (but in any
event within five business days) after the discovery or receipt of notice of
any default under any material agreement to which it or any of its Subsidiaries
is a party, any condition or event which is reasonably likely to result in any
material liability under any federal, state or local statute or regulation
relating to public health and safety, worker health and safety or pollution or
protection of the environment or any other material adverse change, event or
circumstance affecting the Company or any Subsidiary (including, without
limitation, the filing of any material litigation against the Company or any
Subsidiary or the existence of any dispute with any Person which involves a
reasonable likelihood of such litigation being commenced), an Officer’s
Certificate specifying the nature and period of existence thereof and what
actions the Company and its Subsidiaries have taken and propose to take with
respect thereto;


 


(vii)         within ten days
after transmission thereof, copies of all financial statements, proxy
statements, reports and any other general written communications which the
Company sends to its stockholders and copies of all registration statements and
all regular, special or periodic reports which it files, or any of its officers
or directors file with respect to the Company, with the Securities and Exchange
Commission or with any securities exchange on which any of its securities are
then listed, and copies of all press releases and other statements made
available generally by the Company to the public concerning material
developments in the Company’s and its Subsidiaries’ businesses; and


 


(viii)        with reasonable
promptness, such other information and financial data concerning the Company
and its Subsidiaries as any Person entitled to receive information under this Section
8A may reasonably request.


 


Each of the financial statements referred to in subparagraph (i) and
(iii) above shall be true and correct in all material respects as of the dates
and for the periods stated therein, subject in the case of the unaudited financial
statements to changes resulting from normal year-end adjustments for recurring
accruals (none of which would, alone or in the aggregate, be materially adverse
to the business, condition (financial or otherwise), operating results, assets,
liabilities, operations, business prospects or customer, supplier or employee
relations of the Company and its Subsidiaries taken as a whole).


 


8B.          Inspection
Rights.  The Company shall permit
any representatives designated by any holder of more than 15% of the Restricted
Securities acquired hereunder, upon reasonable notice and during normal
business hours and at such other times as any such Purchaser may reasonably
request, to (i) visit and inspect any of the properties of the Company and its
Subsidiaries, (ii) examine the corporate and financial records of the Company
and its Subsidiaries and make copies thereof or extracts therefrom and (iii)
discuss the affairs, finances and accounts of any such corporations with the
directors, officers, key employees and


 


12

















 


independent accountants of the Company and its Subsidiaries.  The presentation of an executed copy of this
Agreement by any such holder to the Company’s independent accountants shall
constitute the Company’s permission to its independent accountants to
participate in discussions with such Persons.


 


8C.          Restrictions.  The Company shall not, without the prior
written consent of MDP:


 


(i)            directly or
indirectly declare or pay, or permit any Subsidiary to declare or pay, any
dividends or make any distributions upon any of its capital stock or other
equity securities other than the Preferred Stock pursuant to the terms of the
Certificate of Incorporation, except that the Company may declare and pay
dividends payable in shares of Common Stock issued upon the outstanding shares
of Common Stock and any Subsidiary may declare and pay dividends or make
distributions to the Company or any Wholly-Owned Subsidiary;


 


(ii)           directly or
indirectly redeem, purchase or otherwise acquire, or permit any Subsidiary to
redeem, purchase or otherwise acquire, any of the Company’s or any Subsidiary’s
capital stock or other equity securities (including, without limitation,
warrants, options and other rights to acquire such capital stock or other
equity securities) other than the Preferred Stock pursuant to the terms of the
Certificate of Incorporation or directly or indirectly redeem, purchase or make
any payments with respect to any stock appreciation rights, phantom stock plans
or similar rights or plans, except for acquisitions of capital stock pursuant
to agreements or plans, including equity incentive agreements with service
providers, which allow the Company to repurchase shares of Common Stock upon
the termination of services or an exercise of the Company’s right of first
refusal upon a proposed transfer.


 


(iii)          except as expressly
contemplated by this Agreement and the Merger Agreement, authorize, issue or
enter into any agreement providing for the issuance (contingent or otherwise)
of, (a) any notes or debt securities containing equity features (including,
without limitation, any notes or debt securities convertible into or
exchangeable for capital stock or other equity securities, issued in connection
with the issuance of capital stock or other equity securities or containing
profit participation features) or (b) any capital stock or other equity
securities (or any securities convertible into or exchangeable for any capital
stock or other equity securities);


 


(iv)          make, or permit any
Subsidiary to make, any loans or advances to, guarantees for the benefit of, or
Investments in, any Person (other than a Wholly-Owned Subsidiary), except for
(a) reasonable advances to employees in the ordinary course of business,
(b) acquisitions permitted pursuant to subparagraph (viii) below,
(c) Investments having a stated maturity no greater than one year from the
date the Company or any Subsidiary makes such Investment in (1) obligations of
the United States government or any agency thereof or obligations guaranteed by
the United States government, (2) certificates of deposit of commercial banks
having combined capital and surplus of at least $50 million or (3) commercial
paper with a rating of at least “Prime-1” by Moody’s Investors Service, Inc.,
or (d) loans for acquisitions of capital stock pursuant


 


13

















 


to agreements or
plans, including equity incentive agreements with service providers, which
allow the Company to repurchase shares of Common Stock upon the termination of
services or an exercise of the Company’s right of first refusal upon a proposed
transfer;


 


(v)           merge or consolidate
with any Person or, except as permitted by subparagraph (viii) below, permit
any Subsidiary to merge or consolidate with any Person (other than such
Subsidiary with a Wholly-Owned Subsidiary);


 


(vi)          sell, lease or
otherwise dispose of, or permit any Subsidiary to sell, lease or otherwise
dispose of, more than 25% of the consolidated assets of the Company and its
Subsidiaries (computed on the basis of book value, determined in accordance
with generally accepted accounting principles consistently applied, or fair
market value, determined by the Company’s board of directors in its reasonable
good faith judgment) in any transaction or series of related transactions or
sell or permanently dispose of any of its or any Subsidiary’s Intellectual
Property Rights;


 


(vii)         liquidate, dissolve
or effect a recapitalization or reorganization in any form of transaction
(including, without limitation, any reorganization into a limited liability
company, a partnership or any other non-corporate entity which is treated as a
partnership for federal income tax purposes);


 


(viii)        acquire or enter
into, or permit any Subsidiary to acquire or enter into, any interest in any
company or business (whether by a purchase of assets, purchase of stock, merger
or otherwise), except acquisitions for purchase consideration of not more than
$2,500,000 in the aggregate, or any joint venture;


 


(ix)           reclassify or recapitalize
any securities of the Company or any of its Subsidiaries;


 


(x)            enter into, or
permit any Subsidiary to enter into, the ownership, active management or
operation of any business other than dredging and demolition;


 


(xi)           become subject to,
or permit any of its Subsidiaries to become subject to, (including, without
limitation, by way of amendment to or modification, extension or renewal of)
any agreement or instrument which by its terms would (under any circumstances)
restrict (a) the right of any Subsidiary to make loans or advances or pay
dividends or distributions to, transfer property to, or repay any Indebtedness
owed to, the Company or another Subsidiary or (b) the Company’s right to
perform the provisions of this Agreement or the other Transaction Agreements,
the Certificate of Incorporation or the Company’s bylaws (including, without
limitation, provisions relating to the declaration and payment of dividends on
and the making of redemptions of the Series A Preferred Stock);


 


(xii)          except as expressly
contemplated by this Agreement, make any amendment to or rescind any provision
of the certificate of incorporation or articles of incorporation, or the
by-laws, of the Company or any of its Subsidiaries, or file any


 


14

















 


resolution of the
board of directors with the secretary of state of the state of incorporation of
the Company or any of its Subsidiaries;


 


(xiii)         enter into, amend,
modify or supplement, or permit any Subsidiary to enter into, amend, modify or
supplement, any agreement, transaction, commitment or arrangement with any of
its or any Subsidiary’s officers, directors, employees, stockholders or
Affiliates or with any individual related by blood, marriage or adoption to any
such individual or with any entity in which any such Person or individual owns
a beneficial interest, except for customary employment arrangements and benefit
programs on reasonable terms and except as otherwise expressly contemplated by
this Agreement;


 


(xiv)        hire or fire the
chief executive officer and/or the chief financial officer of the Company or
persons exercising the authority and/or performing the functions customarily
associated with such job titles, or any other executive officers or key
employees;


 


(xv)         approve or materially
modify any annual strategic and operating plan of the Company;


 


(xvi)        establish or acquire
any Subsidiaries other than Wholly-Owned Subsidiaries;


 


(xvii)       create, incur, assume
or suffer to exist, or permit any Subsidiary to create, incur, assume or suffer
to exist, Indebtedness exceeding an aggregate principal amount of $5,000,000
outstanding at any time on a consolidated basis;


 


(xviii)      create, incur, assume
or suffer to exist, or permit any Subsidiary to create, incur, assume or suffer
to exist, any Liens other than Permitted Liens;


 


(xix)         make, or permit any
Subsidiary to make, any capital expenditures (including, without limitation,
payments with respect to capitalized leases, as determined in accordance with
generally accepted accounting principles consistently applied) exceeding
$100,000 in the aggregate on a consolidated basis during any twelve-month
period;


 


(xx)          enter into, or
permit any Subsidiary to enter into, any leases or other rental agreements
(excluding capitalized leases, as determined in accordance with generally
accepted accounting principles consistently applied) under which the amount of
the aggregate lease payments for all such agreements exceeds $500,000 on a
consolidated basis for any twelve-month period;


 


(xxi)         issue or sell, or
permit any Subsidiary to issue or sell, any shares of the capital stock, or
rights to acquire shares of the capital stock, of any Subsidiary to any Person
other than the Company or a Wholly-Owned Subsidiary; or


 


(xxii)        select the auditors
for the Company.


 


15

















 


8D.          Affirmative
Covenants.  The Company shall, and
shall cause each Subsidiary to, unless it has received the prior written
consent of the holders of Securities holding at least a majority of the Common
Stock held by all such holders:


 


(i)            at all times cause
to be done all things necessary to maintain, preserve and renew its corporate
existence and all material licenses, authorizations and permits necessary to
the conduct of its businesses;


 


(ii)           maintain and keep
its material properties in good repair, working order and condition, and from
time to time make all necessary or desirable repairs, renewals and
replacements, so that its businesses may be properly and advantageously
conducted in all material respects at all times;


 


(iii)          pay and discharge
when payable all taxes, assessments and governmental charges imposed upon its
properties or upon the income or profits therefrom (in each case before the
same becomes delinquent and before penalties accrue thereon) and all claims for
labor, materials or supplies which if unpaid would by law become a Lien upon
any of its property, unless and to the extent that the same are being contested
in good faith and by appropriate proceedings and adequate reserves (as
determined in accordance with generally accepted accounting principles,
consistently applied) have been established on its books and financial
statements with respect thereto;


 


(iv)          comply with all
other material obligations which it incurs pursuant to any contract or
agreement, whether oral or written, express or implied, as such obligations
become due, unless and to the extent that the same are being contested in good
faith and by appropriate proceedings and adequate reserves (as determined in
accordance with generally accepted accounting principles, consistently applied)
have been established on its books and financial statements with respect
thereto;


 


(v)           comply with all
applicable laws, rules and regulations of all governmental authorities, the violation
of which would reasonably be expected to have a material adverse effect upon
the business, condition (financial or otherwise), operating results, assets,
liabilities, operations, business prospects or customer, supplier or employee
relations of the Company and its Subsidiaries taken as a whole;


 


(vi)          apply for and
continue in force with good and responsible insurance companies adequate
insurance covering risks of such types and in such amounts as are customary for
well-insured companies of similar size engaged in similar lines of business;
and


 


(vii)         maintain proper
books of record and account which present fairly in all material respects its
financial condition and results of operations and make provisions on its
financial statements for all such proper reserves as in each case are required
in accordance with generally accepted accounting principles, consistently
applied.


 


16

















 


8E.           Compliance
with Agreements.  The Company shall
perform and observe (i) all of its obligations to each holder of the Preferred
Stock and Common Stock set forth in its certificate of incorporation and
bylaws, and (ii) all of its obligations under the Registration Rights Agreement
and the other Transaction Agreements.


 


Section 9.               Definitions.


 


9A.          Definitions.  For the purposes of this Agreement, the
following terms have the meanings set forth below:


 


“Board” means the Company’s Board of Directors.


 


“HSR Act” shall mean the Hart-Scott-Rodino
Antitrust Improvements Act of 1976, as amended.


 


“Independent Third Party” means any Person who,
immediately prior to the contemplated transaction, does not own in excess of 5%
of the Company’s Common Stock on a fully-diluted basis (a “5% Owner”),
who is not controlling, controlled by or under common control with any such 5%
Owner and who is not the spouse or descendent (by birth or adoption) of any
such 5% Owner or a trust for the benefit of such 5% Owner and/or such other
Persons.


 


“Officer’s Certificate” means a certificate
signed by the Company’s president or its chief financial officer, stating that
(i) the officer signing such certificate has made or has caused to be made
such investigations as are necessary in order to permit him to verify the
accuracy of the information set forth in such certificate and (ii) to the
best of such officer’s actual knowledge, such certificate does not misstate any
material fact and does not omit to state any fact necessary to make the
certificate not misleading.


 


“Person” means an individual, a partnership, a
corporation, a limited liability company, an association, a joint stock
company, a trust, a joint venture, an unincorporated organization and a
governmental entity or any department, agency or political subdivision thereof.


 


“Public Offering” means any offering by the
Company’s equity securities to the public pursuant to an effective registration
statement under the Securities Act, or any comparable statement under any
similar federal statute then in force.


 


“Restricted Securities” means (i) the
Securities issued hereunder, and (ii) any securities issued with respect
to the securities referred to in clause (i) above by way of a stock dividend or
stock split or in connection with a combination of shares, recapitalization,
merger, consolidation or other reorganization. 
As to any particular Restricted Securities, such securities shall cease
to be Restricted Securities when they have (a) been effectively registered
under the Securities Act and disposed of in accordance with the registration
statement covering them, or (b) been distributed to the public through a
broker, dealer or market maker pursuant to Rule 144 (or any similar provision
then in force) under the Securities Act or become eligible for sale pursuant to
Rule 144(k) (or any similar provision then in force) under the Securities
Act.  Whenever any particular securities
cease to be Restricted Securities, the holder thereof shall be


 


17

















 


entitled to receive from the Company, without expense, new securities of
like tenor not bearing a Securities Act legend of the character set forth in Section
3C.


 


“Sale of the Company” means the sale of the
Company to an Independent Third Party or group of Independent Third Parties
pursuant to which such party or parties acquire (i) capital stock of the
Company possessing the voting power under normal circumstances to elect a
majority of the Board (whether by merger, consolidation or sale or transfer of
the Company’s capital stock) or (ii) all or substantially all of the Company’s
assets determined on a consolidated basis.


 


“Securities Act” means the Securities Act of
1933, as amended, or any similar federal law then in force.


 


“Securities and Exchange Commission” means the
U.S. Securities and Exchange Commission and includes any governmental body or
agency succeeding to the functions thereof.


 


“Securities Exchange Act” means the Securities
Exchange Act of 1934, as amended, or any similar federal law then in force.


 


“Subsidiary” means, with respect to any Person,
any corporation, limited liability company, partnership, association or other
business entity of which (i) if a corporation, a majority of the total
voting power of shares of stock entitled (without regard to the occurrence of
any contingency) to vote in the election of directors, managers or trustees
thereof is at the time owned or controlled, directly or indirectly, by that
Person or one or more of the other Subsidiaries of that Person or a combination
thereof, or (ii) if a limited liability company, partnership, association
or other business entity, a majority of the partnership or other similar
ownership interest thereof is at the time owned or controlled, directly or
indirectly, by any Person or one or more Subsidiaries of that Person or a
combination thereof.  For purposes
hereof, a Person or Persons shall be deemed to have a majority ownership
interest in a limited liability company, partnership, association or other
business entity if such Person or Persons shall be allocated a majority of
limited liability company, partnership, association or other business entity
gains or losses or shall be or control any managing director or general partner
of such limited liability company, partnership, association or other business
entity.


 


Section 10.             Certain
Voting Agreements.


 


10A.        Each
Purchaser hereby agrees that such Purchaser will vote, or cause to be voted,
all voting Restricted Securities over which such Purchaser has the power to
vote or direct the voting, either in person or by proxy, whether at a
stockholders meeting, or by written consent, in the manner in which MDCP
directs in connection with (i) approval of any amendment or amendments to the
Company’s Certificate of Incorporation or bylaws, (ii) any merger, combination
or consolidation of the Company with any Independent Third Party, (iii) the
sale, lease or exchange of all or substantially all of the assets of the
Company and its Subsidiaries on a consolidated basis to an Independent Third
Party, or (iv) the reorganization, recapitalization, liquidation, dissolution
or winding-up of any of the Company and its Subsidiaries; provided,
however, that no such action shall (a) contravene the terms of this
Agreement, or (b) have a material adverse effect on the rights or
interests of any Purchaser in respect of any of its


 


18

















 


Restricted Securities that would be borne disproportionately by such
Purchaser relative to the effect of such action on the rights or interests of
other Purchasers in respect of holdings of Restricted Securities of the same
class, unless approved by holders of a majority of the Restricted Securities so
adversely affected.


 


10B.        In
order to secure the obligations of each Purchaser who now or hereafter holds
any voting securities to vote such Person’s Restricted Securities in accordance
with the provisions of this Agreement, each Purchaser hereby appoints MDP as
his or its true and lawful proxy and attorney-in-fact, with full power of
substitution, to vote all of his or its Restricted Securities, which irrevocable
proxy MDP may exercise at any time.  The
proxies and powers granted by each such Purchaser pursuant to this Section 10B
are coupled with an interest and are given to secure the performance of such
Purchaser’s obligations under this Agreement. 
Such proxies and powers shall be irrevocable until termination of this Section 10
and shall survive the death, incompetency, disability, bankruptcy or
dissolution of each Purchaser and the subsequent holders of his or its
Restricted Securities.  No Purchaser shall
grant any proxy or become party to any voting trust or other agreement which is
inconsistent with, conflicts with or violates any provision of this Agreement.


 


Section 11.             Miscellaneous.


 


11A.        Expenses.  The Company shall pay to MDP, and hold MDP
harmless against liability for the payment of, (i) the fees and expenses
of its special counsel arising in connection with the negotiation and execution
of this Agreement and the consummation of the transactions contemplated by this
Agreement, which shall be payable at the Closing or, if the Closing does not
occur, payable upon demand, (ii) the fees and expenses incurred with
respect to any amendments or waivers (whether or not the same become effective)
under or in respect of this Agreement, the agreements contemplated hereby or
the Certificate of Incorporation, (iii) the fees and expenses incurred
with respect to the enforcement of the rights granted under this Agreement, the
agreements contemplated hereby and the Certificate of Incorporation, (iv) the fees
and expenses incurred by MDP in connection with any transaction, claim or event
which MDP believes affects the Company and as to which MDP seeks the advice of
outside professionals, (v) the fees and expenses incurred by MDP in connection
with any investment initiative pursued prior to the date hereof with the
Company’s Chief Executive Officer and (vi) the fees and expenses incurred by
MDP in connection with (A) the monitoring and management of the Company and its
Subsidiaries and (B) a Sale of the Company.


 


11B.        Indemnification.  The Company hereby covenants and agrees to
indemnify and hold harmless each of the Purchasers, their respective officers,
directors, stockholders, affiliates, successors, assigns, agents and other
representatives, from and against any and all damages, losses, claims,
liabilities, deficiencies, costs and expenses (including, without limitation,
reasonable attorneys’ fees), resulting from any material breach of any of the
representations, warranties or covenants of the Company under this Agreement.


 


11C.        Survival
of Representations and Warranties. All representations and warranties
contained herein or made in writing by any party in connection herewith shall
survive the execution and delivery of this Agreement and the consummation of
the transactions contemplated hereby through the first anniversary of the
Closing; provided, however, that the


 


19

















 


representations and warranties contained in Section 6B, Section
6D and Section 6G hereof shall survive the Closing for the
applicable statute of limitations.


 


11D.        Remedies.  The Purchasers shall have all rights and
remedies set forth in this Agreement and all rights and remedies which the
Purchasers have been granted at any time under any other agreement or contract
and all of the rights which the Purchasers have under any law.  The Purchasers shall be entitled to enforce
all rights they have under this Agreement, the other Transaction Agreements and
the Securities specifically (without posting a bond or other security), to
recover damages by reason of any breach of any provision of this Agreement and
to exercise all other rights granted by law.


 


11E.         Consent
to Amendments.  Except as otherwise
expressly provided herein, the provisions of this Agreement may be amended and
the Company may take any action herein prohibited, or omit to perform any act
herein required to be performed by it, only if the Company has obtained the
written consent of MDP.


 


11F.         Successors
and Assigns.  Except as otherwise
expressly provided herein, all covenants and agreements contained in this
Agreement by or on behalf of any of the parties hereto shall bind and inure to
the benefit of the respective successors and assigns of the parties hereto
whether so expressed or not.  In
addition, and whether or not any express assignment has been made, the
provisions of this Agreement which are for any Purchaser’s benefit as a
purchaser or holder of Securities are also for the benefit of, and enforceable
by, any subsequent holder of such Securities.


 


11G.        Severability.  Whenever possible, each provision of this
Agreement shall be interpreted in such manner as to be effective and valid
under applicable law, but if any provision of this Agreement is held to be
prohibited by or invalid under applicable law, such provision shall be
ineffective only to the extent of such prohibition or invalidity, without
invalidating the remainder of this Agreement.


 


11H.        No
Third Party Beneficiaries.  Nothing
herein expressed or implied is intended or shall be construed to confer upon or
give to any Person other than the parties hereto and their respective permitted
successors and assigns, any rights or remedies under or by reason of this
Agreement.


 


11I.          Counterparts.  This Agreement may be executed simultaneously
in two or more counterparts (including by facsimile), any one of which need not
contain the signatures of more than one party, but all such counterparts taken
together shall constitute one and the same Agreement.


 


11J.         Descriptive
Headings; Interpretation.  The
descriptive headings of this Agreement are inserted for convenience only and do
not constitute a substantive part of this Agreement.  The use of the word “including” in this Agreement shall be by way
of example rather than by limitation.


 


11K.       Governing Law.  All issues and questions concerning the
construction, validity, enforcement and interpretation of this Agreement and
the exhibits and schedules


 


20

















 


hereto shall be governed by, and
construed in accordance with, the laws of the State of Delaware, without giving
effect to any choice of law or conflict of law rules or provisions (whether of
the State of Delaware or any other jurisdiction) that would cause the
application of the laws of any jurisdiction other than the State of
Delaware.  In furtherance of the
foregoing, the internal law of the State of Delaware shall control the
interpretation and construction of this Agreement (and all schedules and exhibits
hereto), even though under that jurisdiction’s choice of law or conflict of law
analysis, the substantive law of some other jurisdiction would ordinarily
apply.


 


11L.         Notices.  All notices, demands or other communications
to be given or delivered under or by reason of the provisions of this Agreement
shall be in writing and shall be deemed to have been given when delivered
personally to the recipient, sent to the recipient by reputable overnight
courier service (charges prepaid) or mailed to the recipient by certified or
registered mail, return receipt requested and postage prepaid.  Such notices, demands and other
communications shall be sent to the Purchasers at the addresses indicated on
the Schedule of Purchasers attached hereto, to the Company at the
following address:


 




	
  GLDD Acquisitions Corp.

  
	
  c/o Madison Dearborn Capital Partners IV, L.P.

  
	
   

  
	
  70 W. Madison, Suite 3800

  
	
  Three First National Plaza

  
	
  Chicago, Illinois 60602

  
	
  Facsimile: (312) 422-2424

  
	
  Attention:

  	
  Samuel M. Mencoff

  
	
   

  	
  Thomas S. Souleles

  
	
   

  
	
  with a copy to:

  
	
   

  
	
  Kirkland & Ellis LLP

  
	
  200 East Randolph Drive

  
	
  Chicago, IL 60601

  
	
  Facsimile: (312) 861-2200

  
	
  Attention:

  	
  William S. Kirsch, P.C.

  






 


or to such other address or to the attention of such other person as
the recipient party has specified by prior written notice to the sending party.


 


11M.       No
Strict Construction.  The parties
hereto have participated jointly in the negotiation and drafting of this
Agreement.  In the event an ambiguity or
question of intent or interpretation arises, this Agreement shall be construed
as if drafted jointly by the parties hereto, and no presumption or burden of
proof shall arise favoring or disfavoring any party by virtue of the authorship
of any of the provisions of this Agreement.


 


* * * * * * * *


 


21

















 


IN WITNESS WHEREOF, the parties hereto have executed
this Agreement on the date first written above.


 


 


	
  GLDD ACQUISITIONS CORP.

  
	
   

  
	
  By:

  	
  /s/ Douglas B. Mackie

  	
   

  
	
   

  
	
  Its:

  	
  President and Chief Executive Officer

  	
   

  
	
   

  
	
   

  



 

















 


	
  SCHEDULE OF PURCHASERS:

  
	
   

  
	
   

  
	
  MADISON DEARBORN CAPITAL PARTNERS IV, L.P.

  
	
   

  
	
  By:

  	
  Madison Dearborn Partners IV, L.P.

  
	
  Its:

  	
  General Partner

  
	
   

  
	
  By: 

  	
  Madison Dearborn Partners, L.L.C.

  
	
  Its: 

  	
  General Partner

  
	
   

  
	
  By:

  	
    /s/ Thomas S. Souleles

  	
   

  
	
   

  	
  Name:

  	
  Thomas S. Souleles

  
	
   

  	
  Title:

  	
  Member

  
	
   

  
	
  SPECIAL CO-INVEST I

  
	
   

  
	
  By:

  	
    /s/ Thomas S. Souleles

  	
   

  
	
   

  
	
  Its:

  	
    Member

  	
   

  
						



 


2

















 


	
  NORTHWESTERN UNIVERSITY

  
	
   

  
	
  By:

  	
    /s/ William H. McLean

  	
   

  
	
   

  
	
  Its:

  	
    Vice President and Chief Investment
  Officer

  	
   

  
	
   

  
	
   

  
	
  RANDOLPH STREET PARTNERS VI

  
	
   

  
	
  By:

  	
    /s/ William S. Kirsch, P.C.

  	
   

  
	
   

  
	
  Its:

  	
    Partner

  	
   

  
				



 


2

















 


LIST OF
EXHIBITS AND DISCLOSURE SCHEDULES


 


Exhibits


 


	
  Exhibit A

  	
   

  	
  -

  	
   

  	
  Amended and Restated of
  Certificate of Incorporation

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Exhibit B

  	
   

  	
  -

  	
   

  	
  Amended and Restated
  Bylaws

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Exhibit C

  	
   

  	
  -

  	
   

  	
  Registration Rights
  Agreement

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Exhibit D

  	
   

  	
  -

  	
   

  	
  Management Agreement

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Disclosure Schedules

  
	
   

  
	
  Schedule of Purchasers

  
	
   

  
	
  Capitalization Schedule