SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of Report
(Date of earliest event reported): April 28, 1995
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INSITUFORM TECHNOLOGIES, INC.
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(Exact name of registrant as specified in its charter)
Delaware 0-10786 13-3032158
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(State or other (Commission (IRS Employer
jurisdiction of File Number) Identification No.)
incorporation)
1770 Kirby Parkway, Suite 300, Memphis, Tennessee 38138
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(Address of principal executive offices) (Zip Code)
Registrant's telephone number,
including area code (901) 759-7473
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Item 5. Other Events.
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On April 28, 1995, the Registrant announced that it has agreed
with Insituform Mid-America, Inc. ("IMA") to extend through May 31,
1995 the period during which the Registrant will postpone assertion
of any rights under various Insituform (registered trademark) and
NuPipe (registered trademark) license agreements, and the
partnership of MidSouth Partners, arising as a result of the
acquisition of Enviroq Corporation ("Enviroq") by IMA without
consent of the Registrant. During such period, the parties would
not take further action in litigation initiated by the Registrant
in Tennessee Chancery Court regarding such matters, except for
certain proceedings regarding venue.
Reference is hereby made to the agreement entered into with
IMA and IMA Merger Sub, Inc. (formerly, Enviroq), annexed to this
Current Report as Exhibit 99.1, the information contained in which
is hereby incorporated herein by reference.
Item 7. Financial Statements and Exhibits.
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The exhibit filed as part of this Current Report on Form 8-K
is listed in the attached Index to Exhibits.
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SIGNATURES
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 thereunder duly authorized.
INSITUFORM TECHNOLOGIES, INC.
By s/Jean-Paul Richard
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Jean-Paul Richard
President and Chief
Executive Officer
Dated: May 3, 1995
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INDEX TO EXHIBITS
Exhibits Description
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99.1 Amended and Restated Cooperation Agreement
dated April 28,1995 among Insituform
Mid-America, Inc., IMA Merger Sub, Inc.
(formerly,Enviroq Corporation) and the
Registrant.
EXHIBIT 99.1
AMENDED AND RESTATED
COOPERATION AGREEMENT
Agreement dated as of April 28, 1995 among Insituform
Technologies, Inc., for itself and on behalf of Insituform North
America Corp., NuPipe, Inc. and Insituform California, Inc.
(collectively, "ITI"), Insituform Mid-America, Inc. ("IMA"), and
IMA Merger Sub, Inc. (formerly, Enviroq Corporation), for itself
and on behalf of Insituform Southeast, Inc., NuPipe Southeast, Inc.
and E-MidSouth, Inc. (collectively, "Enviroq").
W I T N E S S E T H:
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WHEREAS, IMA and Enviroq entered into an agreement dated
November 2, 1994 (the "Merger Agreement") whereunder IMA proposed
to acquire the pipeline rehabilitation business of Enviroq; and
WHEREAS, ITI and Enviroq, through their respective wholly-
owned subsidiaries, are parties to various license agreements
(collectively, the "Licenses") relating to the Insituform
(Registered trademark) process and the NuPipe (Registered
trademark) process; and
WHEREAS, prior to Closing (as hereinafter defined) under the
Merger Agreement, Enviroq requested that ITI grant its consent (the
"Consent") under the Licenses in connection with the transactions
contemplated by the Merger Agreement; and
WHEREAS, by letters, each dated April 4, 1995, ITI declined
to grant the Consent; and
WHEREAS, ITI has filed suit (the "Declaratory Action") in the
Chancery Court (the "Court") for the Thirtieth Judicial District of
Memphis, Shelby County, Tennessee (Insituform North America Corp.
and NuPipe, Inc. v. Insituform Southeast, Inc., et al., No. 105506-
2) seeking, among other things, a declaratory judgment confirming
ITI's actions under the Licenses; and
WHEREAS, the parties entered into a cooperation agreement
dated April 4, 1995 (the "Cooperation Agreement") whereunder the
parties agreed, among other things, through and including April 30,
1995, not to commence any proceeding, or take any action in any
proceeding in furtherance of the Declaratory Action or any other
petition or action against any party in any court relating directly
or indirectly to the Consent or the denial thereof; and
WHEREAS, by letters each dated April 17, 1995, the parties
agreed that ITI would forbear from asserting any rights under the
Licenses, and/or the partnership agreement dated December 23, 1985
(the "Partnership Agreement") of Midsouth Partners, as a
consequence of the consummation of the Closing and that no failure
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or delay by ITI in exercising any right or privilege under the
Licenses, and each of them, and/or the Partnership Agreement,
would operate as a waiver thereof, and
WHEREAS, the transactions contemplated pursuant to the Merger
Agreement were consummated on April 18, 1995 (the "Closing"); and
WHEREAS, the parties desire to continue discussions relating
to the Licenses and the Partnership Agreement while preserving
the respective rights of the parties;
NOW, THEREFORE, in consideration of the following mutual
premises and covenants, the sufficiency of which is hereby
acknowledged, the parties agree as follows:
(a) Press Releases. ITI agrees to issue the release
attached hereto as Exhibit A, promptly after the execution and
delivery hereof by all parties.
(b) No Court Action. For the period from the date hereof
through and including May 31, 1995, each party hereto agrees not to
commence any proceeding, or take any action in any proceeding in
furtherance of the Declaratory Action or any other petition or
action against any party in any court, relating directly or
indirectly to the Consent or the denial thereof, or, to the extent
arising from the consummation of the Closing, the exercise of any
right or privilege under the Licenses, and each of them, and/or the
Partnership Agreement; provided, however, that:
(i) IMA, Enviroq, and their respective subsidiaries may
file on a timely basis in the United States District Court of
the Western District of Tennessee a notice of removal of the
Declaratory Action and any other pleadings necessary to effect
removal, or oppose remand to state court, and ITI may file on
a timely basis in the United States District Court for the
Western District of Tennessee documents seeking to remand the
Declaratory Action to the Chancery Court for the Thirteenth
Judicial District at Memphis, Shelby County, Tennessee
(collectively referred to herein as "Removal Pleadings"), and
the filing of such Removal Pleadings will not be deemed to be
a breach of this Agreement; and
(ii) any party (or its respective subsidiaries) required
to file a responsive pleading shall (x) prepare such
stipulations for extension of time to file initial responsive
pleadings or motions (including without limitation motions to
dismiss for lack of jurisdiction or for improper venue)
(collectively, referred to herein as "IMA Motions") as are
permitted by the rules of the court where the Declaratory
Action is pending, the other parties shall sign such
stipulations and the party seeking such extension shall file
such stipulations with the court or (y) prepare and file a
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motion seeking an extension of time to file initial responsive
pleadings or IMA Motions as may be required to effectuate the
purpose of this Agreement to extend the time for filing
initial responsive pleadings or IMA Motions until May 31, 1995
which the other parties shall not oppose (and if required by
the court to effectuate such an extension each other party
shall join in such motion).
Except for Removal Pleadings, all time periods for filing
responsive pleadings or motions with respect to the complaint filed
in the Declaratory Action (including motions to dismiss on the
basis of lack of jurisdiction, improper venue, or failure to state
a claim) shall be tolled during the term of this Agreement and all
time periods to file such responsive pleadings or such motions
shall commence as of May 31, 1995.
(c) Interpretation. The parties acknowledge and agree
that neither this Agreement, nor any act or omission, of any party
contemplated hereby shall prejudice the rights of any party hereto
in any proceeding before the Court or otherwise.
(d) Waiver. IMA and Enviroq each acknowledge receipt of
the summons and complaint in the Declaratory Action and waive any
defense with respect to the manner of service thereof. Subject to
the preceding sentence, no failure or delay by any party in
exercising any right, power or privilege under this Agreement, nor,
as a result of the consummation of the Closing, the Licenses or the
Partnership Agreement, shall operate as a waiver thereof nor shall
any single or partial exercise thereof preclude any other or
further exercise of any right, power or privilege with respect to
this Agreement, the Licenses, the Partnership Agreement or
otherwise.
(e) Specific Performance. If any of the provisions of
this Agreement are not performed by any party in accordance with
their respective terms or are otherwise breached, each other party
hereby acknowledges that money damages would be an inadequate
remedy for such breach and the business and assets of the other
parties would be irreparably harmed. Accordingly, each party hereby
agrees that the other parties, respectively, shall be entitled to
specific performance and injunction or other equitable relief as a
remedy for any such breach. Such remedy shall not be deemed to be
the exclusive remedy for the breach of this Agreement, but shall be
in addition to all of the remedies available to each party, at law
or in equity.
(f) Governing Law. This Agreement shall be governed by
and construed in accordance with the internal laws of the State of
Delaware, without giving effect to the principles of conflict of
laws thereof.
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(g) Entire Agreement. This Agreement contains the
entire understanding among the parties with respect to the matters
contemplated by this Agreement and supersedes all prior written or
oral communications, negotiations, understandings or agreements of
any kind with respect to such matters; provided that this provision
shall not supersede any currently existing confidentiality
agreements among the parties.
(h) Amendments. No amendment or modification of this
Agreement shall be effective unless made or agreed to in writing by
the parties hereto.
(i) Parties in Interest. This Agreement shall be
binding upon the parties and their respective successors and
assigns and shall inure to the benefit of the parties and their
respective successors and assigns.
(j) Headings. Paragraph headings in the Agreement are
for convenience only and shall not be deemed to be part of this
Agreement.
(k) Counterparts. This Agreement may be executed in
counterparts and all of such counterparts taken together shall be
deemed to constitute one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have duly executed
this Agreement as of the date first above-written.
INSITUFORM TECHNOLOGIES, INC.
By: s/Jean-Paul Richard
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Jean-Paul Richard
President and
Chief Executive Officer
INSITUFORM MID-AMERICA, INC.
By: s/Jerome Kalishman
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Jerome Kalishman
Chairman
IMA MERGER SUB, INC.
By: s/Jerome Kalishman
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Jerome Kalishman
Chairman
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EXHIBIT A
[Press Release of Insituform Technologies, Inc.]
CONTACT: -or- ITI'S INVESTOR RELATIONS COUNSEL:
Insituform Technologies, Inc. The Equity Group Inc.
Jean-Paul Richard Linda Latman (212) 836-9609
President & CEO (901) 759-7473
FOR IMMEDIATE RELEASE
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Memphis, TN -- April 28, 1995 -- Insituform Technologies, Inc.
("ITI") (NASDAQ National Stock Market: INSUA) today announced that
it has agreed with Insituform Mid-America, Inc. ("IMA") (NASDAQ
National Stock Market: INSMA) to extend through May 31, 1995 the
period during which ITI will postpone assertion of any rights under
various Insituform (Registered trademark) and NuPipe (Registered
trademark) license agreements, and the partnership agreement of
Midsouth Partners, arising as a result of the acquisition of
Enviroq Corporation by IMA without consent of ITI. During such
period, the parties would not take further action in litigation
initiated by ITI in Tennessee Chancery Court regarding such
matters, except for certain proceedings regarding venue.
Insituform Technologies, Inc. provides state-of-the-art
techniques for the reconstruction of deteriorated pipelines
utilizing trenchless processes, and owns the worldwide rights to
the Insituform Process. By eliminating the need for disruptive
excavation, ITI believes the Insituform Process provides a cost-
effective solution to the problem of deteriorated pipe systems.
Insituform Technologies, Inc. also offers the NuPipe Process in the
United States and overseas and is engaged in the rehabilitation of
pipeline for the mining and oil and gas industry under the
UltraPipe (registered trademark) name.
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