UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Date of Report (Date of earliest event reported): April 30, 2008
(Exact name of Registrant as specified in its charter)
Delaware |
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001-33225 |
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20-5336063 |
(State or other jurisdiction of |
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(Commission File Number) |
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(I.R.S. Employer |
Incorporation or Organization) |
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Identification No.) |
2122 York Road
Oak Brook, Illinois 60523
(Address of Principal Executive Offices)
(630) 574-3000
(Registrants telephone number, including area code)
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
o Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
o Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
o Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
o Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
Item 1.01. Entry into a Material Definitive Agreement.
On April 30, 2008, Great Lakes Dredge & Dock Corporation (the Company), the owner of 85% of the outstanding shares of North American Site Developers, Inc., a Massachusetts corporation (NASDI), and Christopher A. Berardi, the President of NASDI, entered into a series of transactions for the purpose of restructuring the Companys arrangements with Mr. Berardi. Specifically,
· the Company acquired the remaining 15% of NASDI from Mr. Berardi, for $5,000 in cash;
· the Company then cancelled approximately $28 million of intercompany indebtedness owed by NASDI to the Company in exchange for additional shares of NASDI;
· the Company then contributed its 100% interest in NASDI to a newly formed holding company, NASDI Holdings Corporation, a Delaware corporation (the Holding Corporation), and NASDI was then converted from a Massachusetts corporation into NASDI, LLC, a Delaware limited liability company (NASDI, LLC).
Pursuant to the Limited Liability Company Agreement of NASDI, LLC, dated April 30, 2008 (the LLC Agreement), 100% of NASDI LLCs Class A Percentage Interests (as defined in the LLC Agreement) were issued to Holding Corporation. In addition, 65% of NASDI LLCs Class B Percentage Interests (as defined in the LLC Agreement) were issued to Holding Corporation and the remaining 35% of NASDI, LLCs Class B Percentage Interests (as defined in the LLC Agreement) were issued to Mr. Berardi. The LLC Agreement provides, among other things, that
· Unless otherwise required by applicable law or the Delaware Limited Liability Company Act, the Class A Members (as defined in the LLC Agreement) have the sole right and power to vote on any matter submitted for approval or consent of the members and the Class B Members (as defined in the LLC Agreement) do not have the right or power to vote in respect of such matters;
· NASDI, LLC is managed by a board of managers consisting of three members, two of which that are appointed by Holding Corporation and one that is appointed by Mr. Berardi (as long has he continues as a Class B Member);
· the Available Cash Flow (as defined in the LLC Agreement), other than from a Sale Transaction (as defined in the LLC Agreement), will be distributed to the Class B Members in accordance with their Class B Percentage Interests on an annual basis; and
· the Available Cash Flow from a Sale Transaction will be distributed, first, to the Class A Members until the Class A Members have received $28,000,000, and second, to the Class B Members in accordance with their Class B Percentage Interests.
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The foregoing summary is a description of certain terms of the LLC Agreement and is qualified in its entirety by reference to the full text of the LLC Agreement, a copy of which is attached hereto as Exhibit 10.1 and incorporated herein by reference.
Holding Corporation also entered into an Employment Agreement, dated April 30, 2008 (the Employment Agreement), with Mr. Berardi, pursuant to which Mr. Berardi will serve as the President of the Holding Corporation. The Employment Agreement is for a term of one year, and it shall automatically renew for additional one year terms unless a party provides written notice of termination within thirty days prior to the end of any then current term. Pursuant to the Employment Agreement, Mr. Berardi will receive an annual salary of $267,000, may participate in all insurance and fringe benefit programs of the Holding Corporation and, in the event of a sale of all or a material portion of the Holding Corporation or NASDI, LLC, shall be entitled to a cash payment equal to 35% of the proceeds received by Holding Corporation in connection with the disposition of NASDI LLC or Holding Corporation to any entity not affiliated with the Company, but such payment shall not exceed $9,800,000. Mr. Berardis employment is subject to non-compete and confidentiality provisions as set forth in the Employment Agreement. The foregoing summary is a description of certain terms of the Employment Agreement and is qualified in its entirety by reference to the full text of the Employment Agreement, a copy of which is attached hereto as Exhibit 10.2 and incorporated herein by reference.
Item 9.01. Financial Statements and Exhibits.
(d) Exhibits.
Exhibit No. |
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Exhibit |
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10.1 |
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Limited Liability Company Agreement of NASDI, LLC, dated April 30, 2008, by and among NASDI Holdings Corporation, Christopher A. Berardi and NASDI, LLC. |
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10.2 |
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Employment Agreement, dated as of April 30, 2008, by and between NASDI Holdings Corporation and Christopher A. Berardi. |
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Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
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GREAT LAKES DREDGE & DOCK CORPORATION |
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(Registrant) |
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Date: May 5, 2008 |
By: |
/s/ Deborah A. Wensel |
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Name: |
Deborah A. Wensel |
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Title: |
Senior Vice President |
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and Chief Financial Officer |
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EXHIBIT INDEX
Exhibit No. |
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Exhibit |
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10.1 |
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Limited Liability Company Agreement of NASDI, LLC, dated April 30, 2008, by and among NASDI Holdings Corporation, Christopher A. Berardi and NASDI, LLC. |
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10.2 |
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Employment Agreement, dated as of April 30, 2008, by and between NASDI Holdings Corporation and Christopher A. Berardi. |
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Exhibit 10.1
LIMITED LIABILITY COMPANY AGREEMENT
OF
NASDI, LLC,
a Delaware limited liability company
TABLE OF CONTENTS
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PAGE |
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ARTICLE I |
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DEFINITIONS; CONSTRUCTION |
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1.1 |
Definitions |
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1.2 |
Construction |
8 |
1.3 |
Financial Definitions |
8 |
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ARTICLE II |
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THE COMPANY |
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2.1 |
Organization |
8 |
2.2 |
Company Name |
9 |
2.3 |
Purpose |
9 |
2.4 |
Powers |
9 |
2.5 |
Principal Place of Business |
9 |
2.6 |
Term |
9 |
2.7 |
Filings; Agent for Service of Process |
9 |
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ARTICLE III |
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CLASSES OF MEMBERS AND INTERESTS; ADDITIONAL FINANCING AND CONTRIBUTIONS |
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3.1 |
Classes of Members and Interests |
10 |
3.2 |
Additional Capital or Financing |
10 |
3.3 |
Additional Capital Contributions |
10 |
3.4 |
Other Matters |
10 |
3.5 |
Incurrence of Indebtedness |
10 |
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ARTICLE IV |
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ALLOCATIONS |
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4.1 |
Profits and Losses |
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4.2 |
Special Allocations |
11 |
4.3 |
Other Allocation Rules |
12 |
4.4 |
Tax Allocations: Code Section 704(c) Allocations |
12 |
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ARTICLE V |
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DISTRIBUTIONS |
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5.1 |
Distributions of Available Cash Flow |
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5.2 |
Tax Distributions |
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5.3 |
Withholding |
14 |
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ARTICLE VI |
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MANAGEMENT POWER, RIGHTS AND DUTIES |
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6.1 |
Management |
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6.2 |
Voting or Other Actions by Members |
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6.3 |
Transactions with the Company |
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6.4 |
Limited Liability |
20 |
6.5 |
Indemnification |
20 |
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ARTICLE VII |
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BOOKS AND RECORDS |
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7.1 |
Books and Records; Inspection by Members |
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7.2 |
Tax Matters |
23 |
7.3 |
Financial Records |
23 |
7.4 |
Fiscal Year |
23 |
7.5 |
Deposits |
24 |
7.6 |
Checks, Drafts, Etc. |
24 |
7.7 |
Accountant |
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7.8 |
Legal Counsel |
24 |
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ARTICLE VIII |
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TRANSFER OR ASSIGNMENT OF INTERESTS |
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8.1 |
Restrictions on Transfer; Certain Representations and Warranties |
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8.2 |
Certain Permitted Transfers |
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8.3 |
Drag-Along |
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8.4 |
Tag Along |
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8.5 |
Call Options |
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ARTICLE IX |
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RESTRICTION ON THE RIGHT TO PURCHASE |
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9.1 |
Restriction on the Right to Purchase |
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ARTICLE X |
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DISSOLUTION AND WINDING UP |
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10.1 |
Liquidating Events |
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10.2 |
Winding Up |
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10.3 |
Gross Asset Value |
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10.4 |
Capital Account Deficit Restoration |
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ARTICLE XI |
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AMENDMENTS |
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11.1 |
Amendments |
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ARTICLE XII |
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MISCELLANEOUS |
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12.1 |
Notices |
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12.2 |
Binding Effect |
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12.3 |
Creditors |
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12.4 |
Remedies Cumulative |
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12.5 |
Headings |
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12.6 |
Severability |
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12.7 |
Incorporation by Reference |
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12.8 |
Further Action |
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12.9 |
Governing Law |
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12.10 |
Consent to Jurisdiction |
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12.11 |
Waiver of Action for Partition |
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12.12 |
Counterpart Execution |
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SCHEDULE I - |
INTERESTS OF MEMBERS |
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SCHEDULE II - |
UNANIMOUS APPROVAL OF BOARD OF MANAGERS |
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EXHIBIT A - |
FORM OF SUPPLEMENT |
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LIMITED LIABILITY COMPANY AGREEMENT
OF
NASDI, LLC
This LIMITED LIABILITY COMPANY AGREEMENT of NASDI, LLC is entered into this 30th day of April, 2008, by and among each of the signatories hereto (collectively, the Initial Members), pursuant to the provisions of the Act (as defined below).
NOW, THEREFORE, the Initial Members, in consideration of the premises, covenants and agreements contained herein (the sufficiency of which consideration each party does hereby acknowledge), do hereby agree as follows:
Act means the Delaware Limited Liability Company Act (6 Del.C. § 18-101, et seq.), as amended from time to time (or any corresponding provisions of succeeding law).
Adjusted Capital Account means, with respect to any Member, the balance, if any, in such Members Capital Account as of the end of the relevant Company taxable year (or period), after crediting to such Capital Account any amounts the Member is obligated to restore pursuant to this Agreement or Regulations Section 1.704-1(b)(2)(ii)(c) or is deemed obligated to restore pursuant to the penultimate sentences of Regulations Section 1.704-2(g)(1) and 1.704-2(i)(5).
Affiliate means any (i) corporation, partnership, trust, limited liability company or other entity controlled by or under common control with any Member or in which a Member is or may be an officer, director, shareholder, partner (general or limited), trustee, member, manager, owner or employee; (ii) officer, director, shareholder, partner (general or limited), trustee, member, manager, owner or employee of any corporation, partnerships, trust, limited liability company or other entity controlled by or under common control with a Member; and (iii) corporation, partnership, trust, limited liability company or other entity or business in which a Member has any interest whatsoever.
Agreement means this Limited Liability Company Agreement, as amended, restated, supplemented or otherwise modified from time to time in accordance with the terms hereof.
Applicable Tax Rate has the meaning set forth in Section 5.2(a).
Available Cash Flow means, for any period, an amount (if positive) equal to: (i) the sum, without duplication, of the amounts for such period of (a) EBITDA, plus (b) the Working Capital Adjustment, minus (ii) the sum, without duplication, of the amounts
for such period of (a) voluntary and scheduled repayments of Indebtedness (excluding repayments of revolving lines of credit except to the extent the revolving lines of credit are permanently reduced in connection with such repayments), (b) Capital Expenditures, except to the extent financed with the proceeds of Capital Contributions, other financings or asset sales, (c) Interest Expense to the extent paid in cash, (d) distributions paid to the members of the Company (including tax distributions) with respect to such period, (e) management fees paid by the Company to NASDI Holdings or any other Affiliate with respect to such period, and (f) any reserves reasonably determined by the Board of Managers for working capital, capital improvements, payments of periodic expenditures, debt service or other purposes.
Berardi means Christopher A. Berardi, an individual residing in the Commonwealth of Massachusetts.
Berardi Manager has the meaning set forth in Section 6.1.
Board of Managers has the meaning set forth in Section 6.1.
Call Events has the meaning set forth in Section 8.5(a).
Capital Account means, with respect to any Member, the Capital Account maintained for such Member in compliance with Regulations Sections 1.704-1(b) and 1.704-2. In the event the Board of Managers shall determine, in good faith with a reasonable basis, that it is prudent to modify the manner in which the Capital Accounts, or any debits or credits thereto (including, without limitation, debits or credits relating to liabilities which are secured by contributed or distributed property or which are assumed by the Company or the Members) are computed in order to comply with such Regulations, the Board of Managers may make such modification. The Board of Managers also shall (i) make any adjustments that are necessary or appropriate to comply with Regulations Section 1.704-1(b)(2)(iv)(q), and (ii) make any appropriate modifications in the event unanticipated events might otherwise cause this Agreement not to comply with Regulations Sections 1.704-1(b) or 1.704-2.
Capital Contributions means, with respect to any Member, at the time of its contribution to the Company, the amount of money and the initial Gross Asset Value of any Property (other than money), net of the amount of any debt to which such Property is subject, contributed to the Company with respect to the Interest in the Company held by such Member, as set forth on Schedule I. The principal amount of a promissory note which is not readily tradable on an established securities market and which is contributed to the Company by the maker of the note will not be included in the Capital Account of any Person until the Company makes a taxable disposition of the note or until (and to the extent) such Member makes principal payments on the note, all in accordance with Regulations Section 1.704-1(b)(2)(iv)(d)(2).
Capital Expenditures means, for any period, the aggregate of all expenditures of the Company during such period that, in accordance with GAAP, are included in purchase of property and equipment or similar items reflected in the statement of cash
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flows of the Company.
Cause has the meaning set forth in the Employment Agreement.
Certificate means the Certificate of Formation of the Company filed with the Secretary of State of the State of Delaware in accordance with the Act, as such Certificate may be amended, restated, supplemented or otherwise modified from time to time in accordance with the Act.
Change of Control has the meaning set forth in the Great Lakes Indenture.
Class A Interest means an Interest in the Company designated as a Class A Interest.
Class A Liquidation Preference Amount means $28 million.
Class A Managers has the meaning set forth in Section 6.1.
Class A Member means a Member holding a Class A Interest.
Class A Percentage Interest means, with respect to a Class A Member, the percentage set forth opposite such Class A Members name on Schedule I under the heading Class A Percentage Interest.
Class B Interest means an Interest in the Company designated as a Class B Interest.
Class B Member means a Member holding a Class B Interest.
Class B Percentage Interest means, with respect to a Class B Member, the percentage set forth opposite such Class B Members name on Schedule I under the heading Class B Percentage Interest.
Code means the Internal Revenue Code of 1986, as amended from time to time (or any corresponding provisions of succeeding law).
Company means the limited liability company formed upon the filing of the Certificate pursuant to the Act and governed by this Agreement and the Person continuing the business of this company in the event of dissolution as herein provided.
Current Assets means, as at any date of determination, the total assets of the Company that may properly be classified as current assets in conformity with GAAP, excluding cash and cash equivalents.
Current Liabilities means, as at any date of determination, the total liabilities of the Company that may properly be classified as current liabilities in conformity with GAAP, excluding the current portion of long term debt.
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EBITDA means, for any period, an amount determined for the Company equal to the sum, without duplication, of the amounts for such period of (i) Net Income, plus (ii) to the extent reducing Net Income, (a) Interest Expense, (b) total depreciation expense, (c) total amortization expense, and (d) other non-cash items, in each case in this clause (ii)(d), excluding any such non-cash item to the extent that it represents an accrual or reserve for potential cash items in any future period or amortization of a prepaid cash item that was paid in a prior period, minus (iii) non-cash items increasing Net Income for such period, in each case in this clause (iii), excluding any such non-cash item to the extent it represents the reversal of an accrual or reserve for potential cash item in any prior period.
Employment Agreement means that certain Employment Agreement dated as of April 30, 2008 by and between Berardi and NASDI Holdings, as the same may be amended, restated, supplemented or otherwise modified from time to time.
Family means, with respect to a Member, (a) a spouse, ancestor or descendant of such Member, or (b) a spouse of an ancestor or descendant of such Member, or (c) a trustee of a trust solely for the benefit of, or a custodian under the Uniform Gifts to Minors Act for, one or more of the foregoing and/or such Member.
GAAP means United States generally accepted accounting principles, consistently applied.
GLD Corporation means Great Lakes Dredge & Dock Corporation, a Delaware corporation.
Great Lakes Bonding Agreement means that certain Third Amended and Restated Underwriting and Continuing Indemnity Agreement dated as of December 22, 2003 by and among GLD Corporation, certain of its subsidiaries from time to time party thereto, Travelers Casualty and Surety Company and Travelers Casualty and Surety Company of America, as the same may be amended, restated, replaced, refinanced, supplemented or otherwise modified from time to time.
Great Lakes Credit Agreement means that certain Credit Agreement dated as of June 12, 2007 by and among GLD Corporation, the other Loan Parties from time to time party thereto, the financial institutions from time to time party thereto as Lenders and LaSalle Bank National Association, as Swing Line Lender, Issuing Lender and Administrative Agent, as the same may be amended, restated, replaced, refinanced, supplemented or otherwise modified from time to time.
Great Lakes Indenture means that certain Indenture dated as of December 22, 2003 by and among GLD Corporation, the Subsidiary Guarantors from time to time party thereto and BNY Midwest Trust Company, as trustee, as the same may be amended, restated, replaced, refinanced, supplemented or otherwise modified from time to time.
Gross Asset Value means, for any asset, such assets adjusted basis for federal income tax purposes, as adjusted from time to time to reflect the adjustments that are
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required or permitted by, or are consistent with, Regulations Section 1.704-1(b)(2)(iv)(d) (g), (j) (n) and (p) (r); provided, however, that:
(a) the initial fair market value of any asset contributed by a Member to the Company shall be as agreed to by the contributing Member and the Board of Managers; and
(b) the adjustments permitted pursuant to an event described in Regulations Section 1.704-1(b)(2)(iv)(f)(5) (excluding the liquidation of the Company described therein) shall be made only if the Board of Managers reasonably determines that such adjustments are necessary or appropriate to reflect the relative economic interests of the Members in the Company.
Indebtedness means all indebtedness for money borrowed and other liabilities that would be required to be reflected as indebtedness on a balance sheet prepared in accordance with GAAP.
Interest means a Members limited liability company interest in the Company (whether such Member has a Class A Interest or a Class B Interest), including any and all benefits to which the holder of such Interest may be entitled as provided in this Agreement, together with all obligations of such Member to comply with the terms and provisions of this Agreement.
Interest Expense means, for any period, total interest expense (including that portion attributable to capital leases in accordance with GAAP and capitalized interest) of the Company with respect to all outstanding Indebtedness of the Company, including all commissions, discounts and other fees and charges owed with respect to letters of credit and net costs under hedging obligations.
Liquidating Events has the meaning set forth in Section 10.1.
Management Agreement means that certain Management Agreement dated as of April 30, 2008 by and between NASDI Holdings and the Company, as the same may be amended, restated, supplemented, replaced or otherwise modified from time to time.
Members mean, initially, each of the Initial Members and thereafter any Person that holds an Interest in the Company, whether as an Initial Member (whether such Member is a Class A Member or a Class B Member) or a Permitted Transferee hereunder; each of the Members is a Member.
NASDI Holdings means NASDI Holdings Corporation, a Delaware corporation.
Net Income means, for any period, the net income (or loss) of the Company for such period taken as a single accounting period determined in conformity with GAAP; provided, however, that net income (or loss) shall exclude any gains or losses attributable to asset sales and non-cash extraordinary gains or losses.
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Net Taxable Income has the meaning set forth in Section 5.2(a).
Nonrecourse Deductions has the same meaning as set forth in Regulations Section 1.704-2(b). The amount of Nonrecourse Deductions for any Company taxable year equals the excess, if any, of the net increase, if any, in the amount of Partnership Minimum Gain attributable to Nonrecourse Liabilities during such Company taxable year over the aggregate amount of any distributions during such Company taxable year of proceeds of a Nonrecourse Liability that are allocable to an increase in Partnership Minimum Gain attributable to Nonrecourse Liabilities, determined according to the provisions of Regulations Section 1.704-2(c).
Nonrecourse Liability has the same meaning given such term in Regulations Section 1.704-2(b)(3).
Officers has the meaning set forth in Section 6.1(d).
Partner Minimum Gain has the same meaning as partner nonrecourse debt minimum gain set forth in Regulations Section 1.704-2(i)(2), and shall be computed as provided in Regulations Section 1.704-2(i)(3).
Partner Nonrecourse Debt has the same meaning given such term in Regulations Section 1.704-2(b)(4).
Partner Nonrecourse Deductions has the same meaning given such term in Regulations Section 1.704-2(i). The amount of Partner Nonrecourse Deductions with respect to a Partner Nonrecourse Debt for any Company taxable year equals the excess, if any, of the net increase, if any, in the amount of Partner Minimum Gain attributable to such Partner Nonrecourse Debt during such Company taxable year over the aggregate amount of any distributions during such Company taxable year to the Member that bears the economic risk of loss for such Partner Nonrecourse Debt to the extent such distributions are from the proceeds of such Partner Nonrecourse Debt and are allocable to an increase in Partner Minimum Gain attributable to such Partner Nonrecourse Debt determined in accordance with Regulations Section 1.704-2(i).
Partnership Minimum Gain shall have the same meaning given such term in Regulations Section 1.704-2(b)(2), and shall be computed as provided in Regulations Section 1.704-2(d).
Permitted Transferee has the meaning set forth in Section 8.2.
Person means any individual, general partnership, limited partnership, corporation, trust, limited liability company or other association or entity.
Profits and Losses and reference to any item of income, gain, loss or deduction thereof mean, for each Company taxable year, an amount equal to the Companys taxable income or loss for such Company taxable year, determined in accordance with Code Section 703(a) (but including in taxable income or loss, for this purpose, all items of income, gain, loss or deduction required to be stated separately
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pursuant to Code Section 702(a)), with the following adjustments:
(a) any income of the Company exempt from federal income tax and not otherwise taken into account in computing Profits or Losses pursuant to this definition shall be added to such taxable income or loss;
(b) any expenditures of the Company described in Code Section 705(a)(2)(B) (or treated as expenditures described in Code Section 705(a)(2)(B) pursuant to Regulations Section 1.704-1(b)(2)(iv)(i)) and not otherwise taken into account in computing Profits or Losses pursuant to this definition shall be subtracted from such taxable income or loss;
(c) in the event the Gross Asset Value of any Company asset is adjusted in accordance with the definition of Gross Asset Value above, the amount of such adjustment shall be taken into account as an item of income, gain, loss or deduction from the disposition of such asset for purposes of computing Profits or Losses; and
(d) notwithstanding any other provision of this definition of Profits and Losses, any items which are specially allocated pursuant to Section 4.2 will not be taken into account.
Property means all real and personal property acquired and held by, or contributed to, the Company and any improvements thereto and shall include both tangible and intangible property.
Regulations means the final or temporary regulations promulgated under the Code, as such regulations may be amended from time to time (including corresponding provisions of succeeding regulations).
Sale Transaction means (i) a sale of an Interest; (ii) a sale of all or a material portion of the business and assets of the Company and its Subsidiaries; or (iii) a merger, consolidation, reorganization or similar transaction pursuant to which a Third Party acquires control of the Company or its business.
SEC means the Securities and Exchange Commission or any successor federal government agency or agencies with similar regulatory and enforcement authority.
Service means the Internal Revenue Service of the United States of America or any successor federal government agency or agencies with similar regulatory and enforcement authority.
Subsidiary means any entity with respect to which a specified Person (or a Subsidiary thereof) owns a majority of the common stock or has the power to vote or direct the voting of sufficient securities to elect a majority of the managers or directors of such entity.
Supplement means a Supplement to this Agreement in the form of Exhibit A
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attached hereto and made a part hereof.
Tax Matters Partner has the meaning set forth in Section 7.2(b).
Third Party means any bona fide, non-related, non-affiliated third-party offeror.
Transfer means, as a noun, any voluntary or involuntary transfer, sale, pledge, hypothecation or other disposition or encumbrance and, as a verb, voluntarily or involuntarily to transfer, sell, pledge, hypothecate or otherwise dispose of or encumber.
Transferee means any Person who has acquired a beneficial interest in the Interest of a Member of the Company.
Transferor means any Member who has Transferred or who is Transferring all or any part or interest in its Interest.
Working Capital means, as at any date of determination, the excess of Current Assets over Current Liabilities.
Working Capital Adjustment means, for any period, the amount (which may be a negative number) of the following, without duplication, (i) Working Capital as of the beginning of such period, minus (ii) Working Capital as of the end of such period.
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President and Chief Executive Officer |
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Douglas B. Mackie |
Vice President and Treasurer |
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Deborah A. Wensel |
Vice President |
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Timothy Higgins |
Vice President |
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George Lemelman |
Secretary |
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Luis A. Rivera |
Assistant Secretary |
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Ellen Parker Burke |
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Any Interest permitted to be Transferred by this Section 8.2 shall remain subject thereafter to the restrictions on Transfer contained in this Agreement and, as a condition to any such Transfer, each Transferee thereof (a Permitted Transferee) shall be required to execute and deliver to the Company a properly completed Supplement to this Agreement and agree to become a party to this Agreement and be bound by the provisions of this Agreement, and deliver such other documents, instruments and certificates as the Company may reasonably request in order that the Company may be satisfied that the foregoing requirements have been satisfied.
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The Members hereby agree that, notwithstanding any provision of the Act, the Company shall not dissolve prior to the occurrence of a Liquidating Event. The Members further agree that in the event the Company is dissolved prior to a Liquidating Event, the Company may be continued upon the election of the Class A Members at such time to so continue the Company; provided, such election occurs within thirty (30) days of the event triggering such dissolution. An election under this Section 10.1 shall be effected when the Class A Members holding a majority of the Class A Interests so elect in writing or at a meeting of the Class A Members.
(a) first, to the satisfaction (whether by payment or the making of reasonable provision for payment thereof) of all of the Companys debts and liabilities to creditors other than Members;
(b) second, to the satisfaction (whether by payment or the making of reasonable provision for payment thereof) of all of the Companys debts and liabilities to Members;
(c) third, as provided in Section 5.1(b).
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IN WITNESS WHEREOF, the parties have entered into this Limited Liability Company Agreement as of the day first above set forth.
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CLASS A MEMBER: |
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NASDI HOLDINGS CORPORATION |
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By: |
/s/ Deborah A. Wensel |
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Deborah A. Wensel |
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Senior Vice President, Chief Financial |
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Officer and Treasurer |
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CLASS B MEMBERS: |
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NASDI HOLDINGS CORPORATION |
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By: |
/s/ Deborah A. Wensel |
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Deborah A. Wensel |
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Senior Vice President, Chief Financial |
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Officer and Treasurer |
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/s/ Christopher A. Berardi |
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Christopher A. Berardi |
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COMPANY: |
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NASDI, LLC |
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By: |
/s/ Douglas B. Mackie |
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Douglas B. Mackie |
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President and Chief Executive Officer |
SCHEDULE I
Class A Members
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CAPITAL |
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CLASS A |
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NAMES AND ADDRESSES |
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Gross Asset Value of |
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1.NASDI Holdings Corporation |
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$ |
28,000,000 |
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100 |
% |
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TOTALS: |
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$ |
28,000,000 |
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100 |
% |
Class B Members
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CAPITAL |
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CLASS B |
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NAMES AND ADDRESSES |
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Gross Asset Value of |
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1.NASDI Holdings Corporation |
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NA |
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65 |
% |
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2.Christopher A. Berardi |
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NA |
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35 |
% |
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TOTALS: |
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NA |
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100 |
% |
SCHEDULE II
Unanimous Approval of Board of Managers
1. Incurrence of Indebtedness other than as permitted by Section 3.5.
2. Capital expenditures (including, without limitation, any acquisition of assets or property, or any acquisition of a business, division or line of business, or any acquisition of the equity interests of any business or entity) in the aggregate in excess of $500,000 in any fiscal year.
3. Approval of an annual budget for the Company and its Subsidiaries.
EXHIBIT A
FORM OF SUPPLEMENT
SUPPLEMENT NO. dated as of , 20 to the Limited Liability Company Agreement dated as of , 2008 (as the same may be amended, restated, supplemented or otherwise modified from time to time, the Agreement), by and among the Members party thereto (individually, a Member and collectively, the Members) and NASDI, LLC, a Delaware limited liability company (the Company).
Capitalized terms used herein and not otherwise defined herein shall have the meanings assigned to such terms in the Agreement.
The Agreement provides that additional Members of the Company may become Members under the Agreement by execution and delivery of an instrument in the form of this Supplement. The undersigned Member of the Company (the New Member) is executing this Supplement in accordance with the requirements of the Agreement to become a Member under the Agreement.
Accordingly, the Company and the New Member agree as follows:
SECTION 1. The New Member by his, her or its signature below becomes a Member under the Agreement with the same force and effect as if originally named therein as a Member and the New Member hereby agrees to be bound by and subject to all of the terms and conditions set forth in the Agreement as a Member thereunder. Each reference to a Member or to a Member in the Agreement shall be deemed to include the New Member. The Agreement is hereby incorporated herein by reference.
SECTION 2. The New Member represents and warrants to the Company and the other Members that this Supplement and the Agreement constitute the legal, valid and binding obligation of the New Member, enforceable against the New Member in accordance with its terms.
SECTION 3. This Supplement may be executed in counterparts, each of which shall constitute an original, but all of which when taken together shall constitute a single contract. This Supplement shall become effective when the Company shall have received counterparts of this Supplement that, when taken together, bear the signatures of the New Member and the Company.
SECTION 4. Except as expressly supplemented hereby, the Agreement shall remain in full force and effect.
SECTION 5. THIS SUPPLEMENT SHALL BE GOVERNED AS TO VALIDITY, CONSTRUCTION AND IN ALL OTHER RESPECTS BY THE LAWS OF THE STATE OF DELAWARE, WITHOUT GIVING EFFECT TO THE CONFLICTS OF LAWS PRINCIPLES THEREOF.
SECTION 6. All communications and notices hereunder shall be in writing and given as provided in Section 12.1 of the Agreement.
IN WITNESS WHEREOF, the New Member and the Company have duly executed this Supplement to the Agreement as of the day and year first above written.
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[NEW MEMBER] |
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Name: |
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Title: |
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NASDI, LLC |
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Exhibit 10.2
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (this Agreement), dated as of April 30, 2008, is made by and between NASDI Holdings Corporation, a Delaware corporation (the Employer or the Company), with its principal place of business at 2122 York Road, Oak Brook, Illinois 60523, and Christopher A. Berardi, an individual (the Employee).
WHEREAS, simultaneously with the execution of this Agreement, Great Lakes Dredge & Dock Corporation, a Delaware corporation (Great Lakes), is causing North American Site Developers, Inc., a Massachusetts corporation (NASDI Inc.), to convert into a Delaware limited liability company under applicable law to become NASDI, LLC, a Delaware limited liability company (NASDI) (collectively referred to herein as the NASDI Restructuring);
WHEREAS, the Employer, through its subsidiary, NASDI, is engaged in the demolition business nationwide;
WHEREAS, prior to the date hereof the Employee was acting as the president of NASDI Inc.;
WHEREAS, it is a condition to the NASDI Restructuring that the Employee execute and deliver this Agreement;
WHEREAS, the Employee desires to be employed by the Employer and the Employer desires to employ the Employee pursuant to the terms and conditions set forth herein; and
WHEREAS, the term NASDI Group shall mean the combined businesses and operations of the Company and NASDI;
NOW, THEREFORE, in consideration of the mutual covenants and agreements contained herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto hereby agree as follows:
1. Employment. Subject to the terms of this Agreement, the Employer hereby employs the Employee as the President of the Company. In this position, the Employee shall report to the Chief Executive Officer of the Company.
2. Term. Unless earlier terminated as provided herein, the term of this Agreement shall be a period commencing on the date hereof and ending on April 30, 2009 (the Initial Term). If neither party provides written notice within thirty (30) days prior to the termination of this Agreement that such automatic renewal will cease, then this Agreement will be considered renewed for successive one (1) year periods (each a Renewal Term). The Initial Term and any Renewal Term is hereinafter collectively referred to as the Term of this Agreement.
3. Duties. The Employee hereby accepts employment and agrees to serve the NASDI Group on a full-time basis and to perform his duties faithfully, diligently and to the best of his ability. During the Term of this Agreement, the Employee shall perform such duties as may be assigned to him from time to time by the Chief Executive Officer or the Board of Directors of the Company (herein, the Board of Directors). The Employees duties shall consist of duties which the Employee has historically performed for the business of NASDI (including, without limitation, NASDI Inc.) with such modifications thereto as made by the Chief Executive Officer or the Board of Directors from time to time. The Employee agrees to comply with the policies of the NASDI Group set forth in the Company manual.
4. Compensation. During the Term of this Agreement, the Employer agrees to pay the Employee, and the Employee agrees to accept from the Employer, compensation consisting of the following:
(a) Annual Salary. The Employer shall pay the Employee an annual salary of $267,000 payable in accordance with payroll practices in effect from time to time for all salaried employees of the NASDI Group.
(b) Fringe Benefits. The Employee shall be entitled to participate in all insurance and other fringe benefit programs of the NASDI Group to the extent and on the same terms and conditions (subject, however, to the terms and provisions of any such benefit plans) such insurance and other fringe benefit programs are offered to other senior executive employees of Great Lakes, except where the NASDI Group has offered any benefit program under terms and provisions that are different from those offered by Great Lakes (including, without limitation, the current health insurance plan offered by the NASDI Group). The Employee shall be entitled to vacation each calendar year in accordance with the policies applicable to employees of Great Lakes from time to time.
(c) Reimbursement of Expenses. The Employee shall be reimbursed for all items of travel and entertainment and miscellaneous expenses reasonably incurred by him on behalf of the Employer. Reimbursement for such expenses will be pursuant to, and limited by, the NASDI Groups policies with respect to reimbursing business expenses of employees of the NASDI Group holding similar positions as the Employee.
(d) Sale Bonus. In the event of a sale of all or a material portion of the business, assets or equity interests of NASDI or the Company, whether by way of a merger, consolidation, reorganization or similar transaction, to an entity not affiliated with Great Lakes which constitutes a change in ownership or effective control of the Company or an acquisition of a substantial portion of the assets of the Company for purposes of Section 409A of the Internal Revenue Code of 1986, as amended from time to time (the Code), and the Treasury Regulations promulgated thereunder (a Sale Transaction), the Employee shall be entitled to a cash payment in an aggregate amount equal to 35% of the liquidation proceeds received by the Company (or, if structured as a sale of equity interests (whether as a direct sale of equity interests, by merger or other similar transaction), then 35% of the net cash proceeds (including the amount of cash subsequently received in respect of any non-cash proceeds within five (5) years of the Sale Transaction in accordance with Section 409A of the Code and the Treasury Regulations promulgated thereunder) received by Great Lakes and/or the Company) in
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connection with the consummation of such Sale Transaction; provided, however, that the aggregate amount of all such payments received pursuant to this Section 4(d) shall not exceed $9,800,000.
(e) Entire Compensation. The compensation and benefits provided for in this Agreement are in full payment of the services to be rendered by the Employee to the NASDI Group.
5. Death or Total Disability of Employee.
(a) Death. In the event of the death of the Employee during the term of this Agreement, this Agreement shall terminate effective as of the date of the Employees death and the NASDI Group shall have no further obligations or liability under this Agreement, except the Company shall pay to the Employees estate (i) the portion, if any, of the Employees base salary for the period up to the Employees date of death which remains unpaid; and (ii) amounts payable pursuant to any employee benefits plans in which the Employee was a participant prior to his death.
(b) Long-term Disability. In the event of the Long-term Disability (as hereinafter defined) of the Employee during the term of this Agreement, the Company shall have the right to terminate the Employees employment hereunder by giving the Employee ten (10) days written notice thereof (a Disability Termination Notice), and upon expiration of such ten (10) day period (the Disability Termination Date), the NASDI Group shall not have any further obligations or liability under this Agreement, except the Company shall pay to the Employee (i) the portion, if any, of the Employees base salary for the period to the Disability Termination Date which remains unpaid; and (ii) any amounts payable pursuant to any employee benefit plans in which the Employee was a participant prior to the Disability Termination Date.
The term Long-term Disability, when used herein, shall have the meaning set forth in the Disability plan of the Company covering the Employee.
6. Discharge for Cause. The Company may discharge the Employee and thereby terminate his employment hereunder for the following reasons: (a) conviction of a felony involving theft or fraud against the NASDI Group or which adversely affects the NASDI Groups reputation; (b) habitual failure to report to work during normal hours other than customarily excused absences for illness or other reasonable causes (it is understood and agreed that the Employees absence from work due to a Disability (other than resulting from habitual intoxication or drug addiction) that is not a Long-term Disability shall not constitute cause pursuant to this Section 6(d)); (c) wrongful disclosure or use of trade secrets; (d) the Employees failure to perform in any material respect any of his agreements, duties or obligations hereunder or breach in any material respect of any terms or conditions hereunder which is capable of being cured by the Employee and continues for a period of thirty (30) days after written notice by the Company; provided, however, that if such failure is not capable of being cured, satisfied or, in the case of conduct, terminated, then termination shall be effective upon written notice; (e) habitual intoxication; or (f) drug addiction. In the event that the Company shall discharge the Employee pursuant to this Section 6, the NASDI Group shall not have any further obligations or liability under this Agreement, except the Company shall pay to the Employee the portion, if
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any, of (i) the Employees base salary for the period up to the date of termination which remains unpaid; and (ii) the amounts payable pursuant to any employee benefit plan in which the Employee was a participant prior to the date of his termination.
7. Discoveries. The Employee will promptly disclose in writing to the Company each improvement, discovery, concept and invention, relating to the business of the NASDI Group, made or conceived by the Employee either alone or in conjunction with others while employed by the Company or within six (6) months after the termination of such employment. The Employee is not the owner of any improvement, discovery, concept or invention (including, any patented invention) which is used in, or relates to the business of the NASDI Group. The Employee will not disclose any such improvement, discovery, concept or invention to any person, except the Company. Each such improvement, discovery, concept or invention shall be the sole and exclusive property of, and is hereby assigned to, the Company, and at the request of the Company, the Employee will assist and cooperate with the Company and any person or persons (at the Companys or such other persons expense) from time to time designated by the Company to obtain for the Company the grant of any letters patent in the United States and/or such other country or countries as may be designated by the Company, covering any such improvement, discovery, concept or invention and will in connection therewith execute such applications, statements, assignments or other documents, furnish such information and data and take all such other action (including, without limitation, the giving of testimony) as the Company may from time to time reasonably request.
8. Non-Disclosure and Non-Competition.
(a) The Employee recognizes and acknowledges that he will have access to certain confidential information of the NASDI Group, including but not limited to, trade secrets, customer lists, sales records and other proprietary commercial information, and that such information constitutes valuable, special and unique property of the NASDI Group. The Employee agrees that he will not, for any reason or purpose whatsoever, during or after the term of his employment, disclose any of such confidential information to any party without express authorization of the Company, except as necessary in the ordinary course of performing his duties hereunder.
(b) The Employee agrees with the Company that during the period of his employment with the Company (or any affiliate of the Company) and during the Restricted Term (as hereinafter defined), the Employee will not, without prior written consent of the Company (which consent shall be duly authorized by the Board of Directors of Great Lakes), engage directly or indirectly in any business (either financially or as a shareholder, employee, officer, partner, independent contractor or owner, or in any other capacity calling for the rendition of personal service or acts of management, operation or control) which is competitive with the business conducted by the NASDI Group (including, without limitation, the Restricted Business (as hereinafter defined)) during the period of his employment with the Company or during the Restricted Term, within the Territory (as hereinafter defined); provided, however, that the Employee may own up to three percent (3%) of any class of securities of a corporation engaged in such a competitive business if such securities are listed on a national securities exchange or registered under the Securities Exchange Act of 1934. The Employee agrees that during the term of his employment with the Company and during the Restricted Term, the Employee will not
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recruit, solicit, hire, actively assist others in recruiting, soliciting or hiring any person who is an employee of or consultant to, the NASDI Group.
For purposes of this Agreement, the following terms shall have the meaning set forth below:
Territory shall mean the States of the United States of America in which prior to the Employees termination, the NASDI Group has done work, and such other countries as the NASDI Group and its subsidiaries or affiliates have done work prior to the time Employees employment with the Company terminates.
Restricted Term shall mean (i) the period commencing upon the date the Employees employment with the Company terminates and ending on the third anniversary date thereof if such termination arises in circumstances where the Employee is entitled to the payment of a sale bonus pursuant to Section 4(d), or (ii) the period commencing upon the date the Employees employment with the Company terminates and ending on the first anniversary date thereof if such termination arises other than as provided in clause (i) above, provided that there shall be no Restricted Term as provided under this clause (ii) if the Employee voluntarily terminates his employment for Good Reason (as hereinafter defined).
Restricted Business shall mean the business that the NASDI Group has conducted on or prior to the date the Employees employment with the Company terminates.
Good Reason shall mean the occurrence of any of the following without the Employees consent: (i) a material reduction or a material adverse alteration in the nature of the Employees position, responsibilities or authorities or the assigning duties to the Employee that are materially inconsistent with those of the position of President for similar companies in similar industries (except to the extent the Company promotes the Employee to a higher executive position); (ii) the Employees becoming the holder of a lesser office or title than that previously held or requiring the Employee to report to other than the Companys Chief Executive Officer; (iii) any material breach of this Agreement by the Company which causes an adverse change to the terms and conditions of the Employees employment; (iv) the Company requires the Employee to relocate his principal business office to a location not within fifty (50) miles of the Companys principal business office located in Waltham, Massachusetts; or (v) any reduction in the aggregate of the Employees salary and benefits, other than a reduction in benefits generally applicable to executive employees. In no event will a resignation be deemed to occur for Good Reason unless the Employee provides notice to the Company, and such resignation occurs, within 90 days after the event or condition giving rise thereto. Upon receiving notice from the Employee, the Company shall have a period of thirty (30) days during which it may remedy the event or condition.
(c) The Employee acknowledges that his compliance with the agreements in this Section 8 is necessary to protect the good will and other proprietary interests of the NASDI Group and that he is one of the principal members of NASDI and principal executives of the
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Company and conversant with its affairs, its trade secrets, its customers and other proprietary information. The Employee acknowledges that a breach of his agreements in this Section 8 hereof will result in irreparable and continuing damage to the NASDI Group and the business of the NASDI Group, for which there will be no adequate remedy at law; and agrees that in the event of any breach of the aforesaid agreements, the Company and its successors and assigns shall be entitled to injunctive relief and to such other and further relief as may be proper.
(d) The Employee and the Company agree that this covenant not to compete is a reasonable covenant under the circumstances, and further agree that if in the opinion of any court of competent jurisdiction such restraint is not reasonable in any respect, such court will have the right, power and authority to excise or modify such provision or provisions of this covenant as to the court will appear not reasonable and to enforce the remainder of the covenant as so amended.
9. Entire Agreement. This Agreement sets forth the entire agreement and understanding between the Company and the Employee and supersedes all prior agreements and understandings, written or oral, relating to the subject matter hereof, including the Employment Agreement made as of April 24, 2001 by and between NASDI Inc. and the Employee.
10. Amendments and Modifications. This Agreement may be amended, modified or supplemented only by a duly authorized and executed written agreement of each of the parties hereto.
11. Enforceability. If any provision of this Agreement shall be held invalid or unenforceable, in whole or in part, then such provision shall be deemed to be modified or restricted to the extent and in the manner necessary to render the same valid and enforceable, or shall be deemed excised from this Agreement as the case may require, and this Agreement shall be construed and enforced to the maximum extent permitted by law, as if such provision had been originally incorporated herein as so modified or restricted, or as if such provision had not been originally incorporated herein, as the case may be.
12. Survival. The covenants set forth in Sections 7 and 8 hereof shall survive the termination of this Agreement.
13. GOVERNING LAW. THE VALIDITY AND EFFECT OF THIS AGREEMENT SHALL BE GOVERNED EXCLUSIVELY BY THE LAWS OF THE STATE OF ILLINOIS, EXCLUDING THE CONFLICT OF LAWS PROVISIONS OF THE STATE OF ILLINOIS.
14. Assignment. The rights and obligations of the Company under this Agreement shall inure to the benefit of, and shall be binding upon, the successors and assigns of the Company. This Agreement and the obligations created hereunder may not be assigned by the Employee.
15. Notices. All notices and other communications hereunder shall be in writing and shall be deemed to have been given if delivered personally or by overnight courier service or telecopier, upon receipt, or if mailed, by registered or certified mail (return receipt
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requested), postage prepaid, upon receipt or refusal. Notice to either party hereto, if mailed or sent by overnight courier service, shall be to the following addresses (or to such other address as the recipient party shall designate in writing to the other party):
If to the Employee:
Christopher A. Berardi
48 Hurd Road
Belmont, MA 02478
If to the Employer:
c/o Great Lakes Dredge & Dock Corporation
2122 York Road
Oak Brook, Illinois 60523-1981
Attn: Chief Executive Officer
Facsimile: (630) 574-3007
16. Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same agreement.
17. Interpretation. The section headings contained in this Agreement are solely for the purpose of reference, are not part of the agreement of the parties and shall not in any way affect the meaning or interpretation of this Agreement.
18. Opportunity to Employ Counsel. Employee hereby acknowledges receipt of this Agreement prior to his employment with Employer and that he has had ample time and opportunity to employ legal counsel of his choice concerning the terms and conditions of this Agreement and his employment with Employer.
19. Waiver. No failure or delay by the Company or the Employee in enforcing or exercising any right or remedy hereunder will operate as a waiver thereof. No claim or right arising out of a breach or default under this Agreement can be discharged in whole or in part by a waiver of that claim or right unless the waiver is supported by consideration and is in writing and executed by the aggrieved party hereto or its or his duly authorized agent. A waiver by any party hereto of a breach or default by the other party hereto of any provision of this Agreement shall not be deemed a waiver of any prior or subsequent compliance therewith, and such provision shall remain in full force and effect.
20. Submission to Jurisdiction and Venue. For purposes of any action or proceeding in connection with this Agreement, the parties hereto each hereby expressly submit to the jurisdiction of the state and federal Courts located in the Commonwealth of Massachusetts. Further, the parties hereto each consent that any order, process, notice of motion or other application to or by any said court or a judge thereof may be served within or without such courts jurisdiction by registered mail or by personal service, provided a reasonable time for appearance is allowed (but not less than the time otherwise afforded by any law or rule), and
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waives any right to contest the appropriateness of any action brought in any such court based upon lack of personal jurisdiction, improper venue or forum non conveniens.
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IN WITNESS WHEREOF, this Employment Agreement has been executed by the Company, by a duly authorized officer thereof, and by the Employee as of the date first above written.
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NASDI HOLDINGS CORPORATION |
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By: |
/s/ Deborah A. Wensel |
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Deborah A. Wensel |
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Senior Vice President, Chief Financial |
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Officer and Treasurer |
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/s/ Christopher A. Berardi |
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Christopher A. Berardi |