As filed with the Securities and Exchange Commission
on November 2, 1995
Registration No. 33-
=================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
----------------
F O R M S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
---------------
INSITUFORM TECHNOLOGIES, INC.
(Exact name of registrant as specified in its charter)
---------------
DELAWARE 13-3032158
(State or other jurisdic- (I.R.S. Employer
tion of incorporation Identification No.)
or organization)
1770 Kirby Parkway
Suite 300
Memphis, Tennessee 38138
(Address of principal executive offices)
--------------
INSITUFORM MID-AMERICA, INC.
STOCK OPTION PLAN
(Full Title of Plan)
--------------
JEAN-PAUL RICHARD
President and Chief Executive Officer
Insituform Technologies, Inc.
1770 Kirby Parkway
Suite 300
Memphis, Tennessee 38138
(901) 759-7473
(Name and address and telephone number,
including area code, of agent for service)
---------------
Copies to:
HOWARD KAILES, ESQ.
Krugman, Chapnick & Grimshaw
Park 80 West - Plaza Two
Saddle Brook, New Jersey 07663
--------------
===================================================================
<PAGE>
<TABLE>
===================================================================================
CALCULATION OF REGISTRATION FEE
===================================================================================
<CAPTION>
Title of Proposed maximum Proposed maximum Amount
securities to be Amount to be offering price aggregate of
registered registered per share offering price registration fee
- ---------------- ------------ ---------------- ---------------- ----------------
<S> <C> <C> <C> <C>
Class A Common Stock 43,520 $ 5.22(1) $ 236,570.40 $ 81.58
($.01 par value) shares
Class A Common Stock 23,615 $ 2.61(2) $ 61,635.15 $ 21.26
($.01 par value) shares
Class A Common Stock 16,868 $ 4.32(3) $ 72,869.76 $ 25.13
($.01 par value) shares
Class A Common Stock 15,334 $ 3.58(4) $ 54,895.72 $ 18.93
($.01 par value) shares
Class A Common Stock 104,644 $ 9.79(5) $1,024,464.76 $353.27
($.01 par value) shares
Class A Common Stock 1,955 $11.09(6) $ 21,680.95 $ 7.48
($.01 par value) shares
Class A Common Stock 5,865 $12.83(7) $ 75,247.95 $ 25.95
($.01 par value) shares
Class A Common Stock 1,150 $12.34(8) $ 14,191.00 $ 4.90
($.01 par value) shares
Class A Common Stock 18,400 $11.20(9) $ 206,080.00 $ 71.07
($.01 par value) shares
Class A Common Stock 4,600 $12.51(10) $ 57,546.00 $ 19.85
($.01 par value) shares
Class A Common Stock 345 $ 8.92(11) $ 3,077.40 $ 1.07
($.01 par value) shares
Class A Common Stock 1,495 $ 8.60(12) $ 12,857.00 $ 4.44
($.01 par value) shares
Class A Common Stock 1,495 $ 8.86(13) $ 13,245.71 $ 4.57
($.01 par value) shares
Class A Common Stock 73,140 $ 7.40(14) $ 541,236.00 $186.64
($.01 par value) shares
Class A Common Stock 17,250 $ 9.03(15) $ 155,767.50 $ 53.72
($.01 par value) shares
Class A Common Stock 2,415 $ 9.14(16) $ 22,073.10 $ 7.62
($.01 par value) shares
Class A Common Stock 345 $12.29(17) $ 4,240.05 $ 1.47
($.01 par value) shares
Class A Common Stock 115,000 $13.75(18) $1,581,250.00 $545.26
($.01 par value) shares
Total 449,236 $4,158,928.45 $1,434.21
shares
===================================================================================
</TABLE>
<PAGE>
(1) Estimated solely for purposes of calculating the registration
fee on the basis of an exercise price of $5.22 per share of
Class A Common Stock for shares subject to options granted.
(2) Estimated solely for purposes of calculating the registration
fee on the basis of an exercise price of $2.61 per share of
Class A Common Stock for shares subject to options granted.
(3) Estimated solely for purposes of calculating the registration
fee on the basis of an exercise price of $4.32 per share of
Class A Common Stock for shares subject to options granted.
(4) Estimated solely for purposes of calculating the registration
fee on the basis of an exercise price of $3.58 per share of
Class A Common Stock for shares subject to options granted.
(5) Estimated solely for purposes of calculating the registration
fee on the basis of an exercise price of $9.79 per share of
Class A Common Stock for shares subject to options granted.
(6) Estimated solely for purposes of calculating the registration
fee on the basis of an exercise price of $11.09 per share of
Class A Common Stock for shares subject to options granted.
(7) Estimated solely for purposes of calculating the registration
fee on the basis of an exercise price of $12.83 per share of
Class A Common Stock for shares subject to options granted.
(8) Estimated solely for purposes of calculating the registration
fee on the basis of an exercise price of $12.34 per share of
Class A Common Stock for shares subject to options granted.
(9) Estimated solely for purposes of calculating the registration
fee on the basis of an exercise price of $11.20 per share of
Class A Common Stock for shares subject to options granted.
(10) Estimated solely for purposes of calculating the registration
fee on the basis of an exercise price of $12.51 per share of
Class A Common Stock for shares subject to options granted.
(11) Estimated solely for purposes of calculating the registration
fee on the basis of an exercise price of $8.92 per share of
Class A Common Stock for shares subject to options granted.
(12) Estimated solely for purposes of calculating the registration
fee on the basis of an exercise price of $8.60 per share of
Class A Common Stock for shares subject to options granted.
(13) Estimated solely for purposes of calculating the registration
fee on the basis of an exercise price of $8.86 per share of
Class A Common Stock for shares subject to options granted.
(14) Estimated solely for purposes of calculating the registration
fee on the basis of an exercise price of $7.40 per share of
Class A Common Stock for shares subject to options granted.
(15) Estimated solely for purposes of calculating the registration
fee on the basis of an exercise price of $9.03 per share of
Class A Common Stock for shares subject to options granted.
<PAGE>
(16) Estimated solely for purposes of calculating the registration
fee on the basis of an exercise price of $9.14 per share of
Class A Common Stock for shares subject to options granted.
(17) Estimated solely for purposes of calculating the registration
fee on the basis of an exercise price of $12.29 per share of
Class A Common Stock for shares subject to options granted.
(18) Estimated solely for purposes of calculating the registration
fee on the basis of an exercise price of $13.75 per share of
Class A Common Stock for shares subject to options granted.
<PAGE>
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Information Incorporated by Reference
-------------------------------------
There are hereby incorporated by reference in this
Registration Statement the following documents and information
heretofore filed by Insituform Technologies, Inc. (the "Company")
under the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), with the Securities and Exchange Commission:
(a) Annual Report on Form 10-K for the year ended
December 31, 1994, as amended by Amendment No. 1 thereto;
(b) Current Report on Form 8-K dated January 9, 1995;
(c) Quarterly Report on Form 10-Q for the quarter ended
March 31, 1995, as amended by Amendment No. 1 thereto;
(d) Current Report on Form 8-K dated April 4, 1995;
(e) Current Report on Form 8-K dated April 18, 1995;
(f) Current Report on Form 8-K dated April 28, 1995;
(g) Current Report on Form 8-K dated May 23, 1995;
(h) Current Report on Form 8-K dated June 7, 1995;
(i) Quarterly Report on Form 10-Q for the quarter ended
June 30, 1995;
(j) Report on Form 10-C dated September 1, 1995;
(k) Report on Form 10-C dated October 25, 1995; and
(l) Current Report on Form 8-K dated October 25, 1995.
All documents filed by the Company pursuant to Sections 13(a),
13(c), 14 and 15(d) of the Exchange Act after the date of this
Registration Statement and prior to the filing of a post-effective
amendment which indicates that all securities offered hereunder
have been sold or which deregisters all securities then remaining
unsold, shall be deemed to be incorporated by reference in this
Registration Statement and to be a part hereof from the date of
filing of such documents.
<PAGE>
Certain information contained in this Registration Statement
summarizes, is based upon, or refers to, information contained in
one or more exhibits to this Registration Statement. Accordingly,
the information contained herein is qualified in its entirety by
reference to such documents and should be read in conjunction
therewith.
Item 4. Description of Securities
-------------------------
Not applicable.
Item 5. Interests of Named Experts and Counsel
--------------------------------------
The validity of the securities being offered hereby is being
passed upon for the Company by Krugman, Chapnick & Grimshaw, Park
80 West - Plaza Two, Saddle Brook, New Jersey 07663-5819. James D.
Krugman, a partner in Krugman, Chapnick & Grimshaw, is a director
and Chairman of the Board of the Company, and Howard Kailes, a
partner of such firm, is Secretary of the Company. Mr. Krugman owns
10,000 shares of Common Stock; is managing partner of a partnership
which owns 40,364 shares of Common Stock (in 5,046 shares of which
Mr. Krugman has a beneficial interest); has shared voting and
investment power over 33,300 shares of Common Stock owned by a
general partnership in which his mother has an interest; and has
the right to acquire 95,000 additional shares which are issuable
upon the exercise of options granted by the Company (of which
options covering 47,500 shares are currently exercisable).
Item 6. Indemnification of Directors and Officers
-----------------------------------------
Under the provisions of Paragraph Seventh of the Certificate
of Incorporation of the Company and Section 145 of the General
Corporation Law of the State of Delaware (the "GCL"), as amended,
the Company is required to indemnify a director or officer of the
Company for expenses arising out of legal proceedings in which the
director or officer became involved by reason of his position as a
director or officer of the Company, if he acted in good faith and
in a manner he reasonably believed to be in or not opposed to the
best interests of the Company and, with respect to any criminal
proceedings, if he had no reasonable cause to believe his conduct
was unlawful. In a proceeding to procure a judgment in the
Company's favor, a director or officer may be indemnified for
expenses incurred by him in connection with the defense or
settlement of the suit if he acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests
of the Company, except that no indemnification shall be permitted
<PAGE>
without a court order in respect of any claim, issue, or matter as
to which such director or officer shall have been adjudged to be
liable for negligence or misconduct in the performance of his duty
to the Company. Indemnification of a director or officer as
provided above, unless court-ordered, shall be made by the Company
only upon a determination that indemnification is proper in a
specific case because the conduct of such director or officer meets
the standards set forth above. Such determination shall be made
(i)by a vote of the majority of a quorum consisting of directors
who were not parties to the proceeding involved, (ii) by
independent legal counsel in a written opinion or (iii) by the
stockholders of the Company.
Under agreements entered into by the Company and all of the
members of its Board of Directors, the foregoing indemnification
provisions have been supplemented as follows with respect to such
persons: (i) indemnification is permitted in the event the director
is wholly or partly successful; (ii) prompt payment of litigation
expenses is provided in advance of indemnification, subject to
repayment if it is subsequently determined that the director was
not entitled to indemnification for the expenses in question; (iii)
prompt indemnification is provided unless a determination is made
that the director has not met the applicable statutory standard;
(iv) in the event of a change in control of the Company, a
determination that indemnification is proper may be made solely by
independent legal counsel, in which case the indemnitee will be
presumed entitled to indemnification until such presumption is
overcome by the Company; and (v) the director is permitted to
petition a court or seek an award in arbitration with respect to
his entitlement to indemnification or advancement of expenses.
Those members of the Board of Directors of the Company (the
"Prior IGL Directors") who previously were directors of Insituform
Group Limited ("IGL") are entitled to the benefits of the agreement
dated July 3, 1992 (the "IGL Acquisition Agreement") among the
Company, INA Acquisition Corp. ("INA Sub") and IGL, pursuant to
which INA Sub will honor and assume all obligations of IGL pursuant
to IGL's Articles of Association and Memorandum of Association as
in effect on July 3, 1992 which provide for indemnification of
directors of IGL with respect to events occurring prior to the
effective date of the acquisition of IGL by the Company. The
Company has also agreed to indemnify the Prior IGL Directors in
connection with certain actions taken as directors of IGL with
respect to the liquidation of IGL contemplated by the IGL
Acquisition Agreement.
Those members of the Board of Directors of the Company (the
"Prior IMA Directors") who previously were directors of Insituform
Mid-America, Inc. ("IMA") are entitled to the benefits of the
agreement dated May 23, 1995 (the "IMA Merger Agreement") among the
Company, ITI Acquisition Corp. ("ITI Sub") and IMA, pursuant to
<PAGE>
which the Company and IMA, as a wholly-owned subsidiary of the
Company, will, to the extent permitted by the GCL and other law,
honor all obligations of IMA pursuant to IMA's certificate of
incorporation and by-laws, and certain agreements entered into by
IMA, as in effect on May 23, 1995, which provide for
indemnification of directors of IMA with respect to events
occurring prior to the effective time of the merger of ITI Sub into
IMA. Under agreements entered into by IMA and all of its directors
prior to May 23, 1995, IMA undertook to indemnify such individuals
to the full extent permitted by applicable law.
In June 1988, the stockholders of the Company approved an
amendment to its Certificate of Incorporation to add a provision
which eliminates the personal liability of a director of the
Company to the Company or to any of its stockholders for monetary
damages for a breach of his fiduciary duty as a director, except in
the case where the director breached his duty of loyalty, failed to
act in good faith, engaged in intentional misconduct or knowingly
violated a law, authorized the payment of a dividend or approved a
stock repurchase in violation of Delaware corporate law, or
obtained an improper personal benefit or except for acts or
omissions occurring prior to June 17, 1988.
Item 7. Exemption from Registration Claimed
-----------------------------------
Not applicable.
Item 8. Exhibits
--------
The exhibits required to be filed as part of this Registration
Statement are listed in the attached Index to Exhibits.
Item 9. Undertakings
------------
(a) The undersigned Registrant hereby undertakes, except as
otherwise specifically provided in the rules of the Securities and
Exchange Commission promulgated under the Securities Act of 1933:
(1) To file, during any period in which offers or sales
are being made, a post-effective amendment to this registration
statement:
(i) To include any prospectus required by section
10(a)(3) of the Securities Act of 1933;
<PAGE>
(ii) To reflect in the prospectus any facts or
events arising after the effective date of the registration
statement (or the most recent post-effective amendment
thereof) which, individually or in the aggregate, represent a
fundamental change in the information set forth in the
registration statement. Notwithstanding the foregoing, any
increase or decrease in volume of securities offered (if the
total dollar value of securities offered would not exceed that
which was registered) and any deviation from the low or high
end of the estimated maximum offering range may be reflected
in the form of prospectus filed with the Commission pursuant
to Rule 424(b) if, in the aggregate, the changes in volume and
price represent no more than a 20% change in the maximum
aggregate offering price set forth in the "Calculation of
Registration Fee" table in the effective registration
statement;
(iii) To include any material information with
respect to the plan of distribution not previously disclosed
in the registration statement or any material change to such
information in the registration statement;
Provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do
not apply if the registration statement is on Form S-3, Form S-8 or
Form F-3, and the information required to be included in a post-
effective amendment by those paragraphs is contained in periodic
reports filed with or furnished to the Commission by the Registrant
pursuant to section 13 or section 15(d) of the Securities Exchange
Act of 1934 that are incorporated by reference in the registration
statement.
(2) That, for the purpose of determining any liability
under the Securities Act of 1933, each such post-effective
amendment shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of
such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-
effective amendment any of the securities being registered which
remain unsold at the termination of the offering.
(b) The undersigned Registrant hereby undertakes that, for
purposes of determining any liability under the Securities Act of
1933, each filing of the Registrant's annual report pursuant to
section 13(a) or section 15(d) of the Securities Exchange Act of
1934 that is incorporated by reference in the registration
statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of
such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(c) Insofar as indemnification for liabilities arising under
the Securities Act of 1933 may be permitted to directors, officers
and controlling persons of the Registrant pursuant to the foregoing
provisions, or otherwise, the Registrant has been advised that in
the opinion of the Securities and Exchange Commission such
indemnification is against public policy as expressed in the Act
and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by
the Registrant of expenses incurred or paid by a director, officer
or controlling person of the Registrant in the successful defense
of any action, suit or proceeding) is asserted by such director,
officer or controlling person in connection with the securities
being registered, the Registrant will, unless in the opinion of its
counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in
the Act and will be governed by the final adjudication of such
issue.
<PAGE>
<PAGE>
CONSENT OF COUNSEL
The Consent of Krugman, Chapnick & Grimshaw is contained in
their opinion filed as Exhibit 5 to this Registration Statement.
<PAGE>
<PAGE>
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
Insituform Technologies, Inc.
Memphis, Tennessee
We hereby consent to the incorporation by reference in this
Registration Statement on Form S-8 of our report dated March 9,
1995 relating to the consolidated financial statements of
Insituform Technologies, Inc. appearing in the Company's Annual
Report on Form 10-K for the year ended December 31, 1994.
BDO SEIDMAN, LLP
Memphis, Tennessee
November 2, 1995
<PAGE>
<PAGE>
INDEPENDENT AUDITORS' CONSENT
The Board of Directors
Insituform Mid-America, Inc.
We consent to the incorporation by reference in this Registration
Statement on Form S-8 of our report dated November 15, 1994 related
to the consolidated balance sheets of Insituform Mid-America, Inc.
and subsidiaries as of September 30, 1994 and 1993 and the related
consolidated statements of income, changes in stockholders' equity,
and cash flows for each of the years in the three-year period ended
September 30, 1994, which report is incorporated by reference to
the Current Report on Form 8-K of Insituform Technologies, Inc.
dated October 25, 1995.
KPMG Peat Marwick LLP
St. Louis, Missouri
November 2, 1995
<PAGE>
<PAGE>
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration
Statement on Form S-8 of our report dated June 9, 1995 related to
the consolidated balance sheets of Enviroq Corporation (renamed IMA
Merger Sub, Inc.) as of March 25, 1995 and March 26, 1994 and for
the years then ended (which expresses an unqualified opinion and
includes explanatory paragraphs referring to the discontinued
operations of two subsidiaries and the sale of Enviroq common stock
to IMA on April 18,1995, and to an uncertainty regarding the
ultimate outcome of certain litigation and arbitration
proceedings), which report is incorporated by reference to the
Company's Current Report on Form 8-K dated October 25, 1995.
Deloitte & Touche LLP
Jacksonville, Florida
November 2, 1995
<PAGE>
<PAGE>
POWER OF ATTORNEY
The Registrant and each person whose signature appears below
hereby appoints James D. Krugman, Jean-Paul Richard and William A.
Martin, as attorneys-in-fact with full power of substitution,
severally, to execute in their respective names and on behalf of
the Registrant and each such person, individually and in each
capacity stated below, one or more amendments (including post-
effective amendments) to the registration statement as the
attorney-in-fact acting in the premises deems appropriate and to
file any such amendment to the registration statement with the
Securities and Exchange Commission.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933,
the Registrant certifies that it has reasonable grounds to believe
that it meets all of the requirements for filing on Form S-8 and
has duly caused this registration statement to be signed on its
behalf by the undersigned, thereunto duly authorized, in the City
of Memphis, State of Tennessee, on the 2nd day of November, 1995.
INSITUFORM TECHNOLOGIES, INC.
By s/Jean-Paul Richard
---------------------------
Jean-Paul Richard
President and Chief Executive
Officer
Pursuant to the requirements of the Securities Act of 1933,
this registration statement has been signed below by the following
persons in the capacities and on the dates indicated.
Signature Title Date
--------- ----- ----
s/Jean-Paul Richard President, Principal November 2, 1995
- ------------------------- Executive Officer
Jean-Paul Richard and Director
s/William A. Martin Principal Financial November 2, 1995
- ------------------------- and Accounting Officer
William A. Martin
s/Robert W. Affholder Director November 2, 1995
- -------------------------
Robert W. Affholder
s/Paul A. Biddelman Director November 2 , 1995
- -------------------------
Paul A. Biddelman
s/Brian Chandler Director November 2 , 1995
- -------------------------
Brian Chandler
<PAGE>
s/Douglas K. Chick Director November 2 , 1995
- -------------------------
Douglas K. Chick
s/William Gorham Director November 2 , 1995
- -------------------------
William Gorham
s/Jerome Kalishman Director November 2 , 1995
- -------------------------
Jerome Kalishman
s/James D. Krugman Director November 2 , 1995
- -------------------------
James D. Krugman
s/Steven Roth Director November 2 , 1995
- -------------------------
Steven Roth
s/Alvin J. Siteman Director November 2 , 1995
- -------------------------
Alvin J. Siteman
s/Silas Spengler Director November 2 , 1995
- -------------------------
Silas Spengler
s/Sheldon Weinig Director November 2 , 1995
- -------------------------
Sheldon Weinig
s/Russell B. Wight, Jr. Director November 2 , 1995
- -------------------------
Russell B. Wight, Jr.
<PAGE>
<PAGE>
INDEX TO EXHIBITS
Number
4(i) - Copy of Insituform Mid-America,
Inc. Stock Option Plan, as amended.
4(ii) - Form of Stock Option Agreements
under Insituform Mid-America, Inc.
Stock Option Plan, as amended.
4(iii) - Certificate of Incorporation of the
Registrant.
4(iv) - By-Laws of the Registrant.
5 - Opinion of Krugman, Chapnick &
Grimshaw.
23(i) - Consent of BDO Seidman, LLP (See
"Consent of Independent Certified
Public Accountants" in the Regis-
tration Statement).
23(ii) - Consent of KPMG Peat Marwick LLP
(See "Independent Auditors' Consent"
in the Registration Statement).
23(iii) - Consent of Deloitte & Touche LLP
(See "Independent Auditors' Consent"
in the Registration Statement).
23(iv) - Consent of Counsel (contained in
Exhibit 5).
24 - Power of Attorney (See "Power of Attorney"
in the Registration Statement).
<PAGE> EXHIBIT 4(i)
INSITUFORM MID-AMERICA, INC.
STOCK OPTION PLAN
(AMENDED AS OF OCTOBER 25, 1995)*
1. PURPOSE OF THE PLAN.
-------------------
1.1 The Insituform Mid-America, Inc. Stock Option Plan
(herein called the Plan) of Insituform Technologies, Inc., a
Delaware corporation (herein called the "Company") and its
subsidiaries is designed and intended (a) to encourage ownership of
the Company's common stock by employees of the Company and its
subsidiaries, and to provide additional incentive for them to
promote the success of the business of the Company, and (b) to be
helpful as a further incentive in attracting personnel to enter the
employ of the Company and its subsidiaries. It is expected that the
added interest of the participating employees under this Plan, and
their proprietary attitude toward the Company resulting from their
investment in the Company's common stock, will promote the future
growth, development and continued success of the Company.
1.2 As used in the Plan, "subsidiaries" of the Company
shall include any "subsidiary corporation" as defined in Section
425(f) of the Internal Revenue Code of 1954, as amended.
1.3 As used in the Plan, "employee" shall include
officers and shall be an individual who has an "employment
relationship" with the Company or one or more of its subsidiaries
as defined in Section 1.421-7(h) of the Income Tax Regulations. In
addition, for purposes of the Plan the term "employee" shall
include a director of the Company who is not otherwise an employee,
and such person's tenure as a director shall be treated as his or
her term of employment, provided, however, that such persons may
not be granted Incentive Stock Options pursuant to the Plan.
2. STOCK SUBJECT TO THE PLAN.
-------------------------
One Million (1,000,000) shares of the Class A Common
Stock, $.O1 par value, of the Company shall be reserved for issue
upon the exercise of options granted under the Plan. Such shares
may, as the Board of Directors in its sole discretion from time to
time determine, include whole or fractional shares. In the event an
option is exercised, the Company may use authorized but unissued
shares or shares held in treasury in lieu thereof. If any option
granted under the Plan shall expire or terminate for any reason
without having been exercised in full, the unpurchased shares
subject to such option shall again be available for the purposes of
the Plan.
- ----------------
* as modified pursuant to Agreement and Plan of Merger dated as
of May 23, 1995 among Insituform Technologies, Inc., ITI
Acquisition Corp. and Insituform Mid-America, Inc.
<PAGE>
3. ADMINISTRATION OF THE PLAN.
--------------------------
3.1 The Plan shall be administered by the Compensation
Committee of the Company (herein called the "Committee") consisting
of not less than three members of the Board of Directors of the
Company, who may also be officers of the Company or any of its
subsidiaries. No person while serving as a member of the Committee
shall be eligible to receive an option under the Plan, and no
person who has ever received an option under the Plan shall be
eligible to be a member of the Committee.
3.2 The Committee shall be appointed by the Board of
Directors of the Company. The Board of Directors of the Company
may, within the limits herein provided, from time to time in its
discretion, fix and change the numbers of members of the Committee,
remove members of the Committee, appoint members of the Committee
in substitution for or in addition to members previously appointed,
and fill vacancies however caused in the Committee.
3.3 The Committee shall select one of its members as its
chairman, and shall hold its meetings at such times and places as
it may determine. A majority of its members shall constitute a
quorum, but all action of the Committee shall be taken by a
majority of its members. Any action, decision or determination
reduced to writing and signed by all the members shall be fully as
effective as if it had been done or made by a vote of a majority of
the members at a meeting duly called and held. The Committee may
appoint a secretary, and shall keep minutes of its meetings and
actions, and shall make such rules and regulations for the conduct
of the business of the Committee as it deems advisable. The
secretary may be, but not need be, an employee of the Company or a
subsidiary. Serving as secretary of the Committee shall not
disqualify an employee from receiving an option under the Plan
provided such person does not participate in the determination of
individuals to whom options shall be granted.
3.4 Subject to the express provision of the Plan, the
Committee shall have plenary authority, in its sole discretion, to
determine the individuals to whom options shall be granted, the
number of shares subject to each option, and the time or times at
which options shall be granted. Subject to the express provisions
of the Plan, the Committee shall also have plenary authority, in
its discretion, to construe and interpret the Plan, to make
determinations in administration of the Plan, to make, amend and
rescind rules and regulations regarding the Plan and its
administration, to determine the terms and provisions of the
respective stock option agreements (which need not be identical),
and to take whatever action is necessary to carry out the purposes
of the Plan. The Committee's actions and determinations on matters
referred to in this section shall be conclusive on all persons
whomsoever. No act or failure to act on the part of the Committee,
or on the part of any member thereof, shall result in any liability
whatsoever if taken in good faith.
<PAGE>
4. TYPE OF OPTION GRANTED BY THE PLAN.
----------------------------------
The Committee shall have authority to grant options which
qualify as Incentive Stock Options as defined in Section 422A of
the Internal Revenue Code of 1954, as amended and to grant options
which do not qualify as Incentive Stock Options provided, however,
such non-Incentive Stock Options must be identified as such in the
terms of the grant. Paragraphs 5, 6, 7, 9, 10 and 11 shall apply to
an option which is not an Incentive Stock Option only to the extent
determined by the Committee.
5. ELIGIBILITY TO RECEIVE OPTIONS UNDER THE PLAN.
---------------------------------------------
5.1 Options May be granted under the Plan to all
employees of the Company or of any of its subsidiaries. No option
may be granted under the Plan to any person who immediately before
such option is granted owns stock possessing more than 10% of the
total combined voting power of all classes of stock of the Company
or of any of its subsidiaries. For the purpose of the preceding
sentence, the employee shall be deemed to own stock which is owned
by the employee's siblings, spouse, ancestors and lineal
descendants. An employee who has been granted an option under the
Plan may be granted an additional option or options hereunder at
any time, if otherwise eligible under the provisions of the Plan.
An option may be granted to an individual upon the condition that
such individual will become an employee of the Company or any of
its subsidiaries, provided however, that such a conditional option
shall be deemed to be granted only on the date such individual
becomes an employee.
5.2 In making a determination as to persons to whom
options shall be granted under the Plan, and the number of shares
to be covered by such options, the Committee shall take into
consideration the nature of the services rendered or to be rendered
by the employee, the employee's present and potential contributions
to the success of the Company, and such other factors as the
Committee shall deem relevant in accomplishing the purposes of the
Plan. Any and all determinations made by the Committee pursuant to
this section shall be binding upon all persons whomsoever, and no
employee eligible to receive an option under the Plan shall have
any legal right to complain as to any determination which shall be
made by the Committee hereunder as to him.
5.3 Nothing contained in the Plan shall be construed to
limit the right of the Company to grant options otherwise than
under the Plan in connection with (a) the employment of any person,
(b) the acquisition of any corporation, firm or association, or the
business or assets thereof, including options granted to employees
thereof who become employees of the Company or a subsidiary, or (c)
other proper corporate purposes.
<PAGE>
<PAGE>
6. OPTION PRICE.
------------
6.1 The purchase price of the stock subject to each
option granted hereunder shall be equal to at least 100% of the
fair market value of the stock at the time of the grant of the
option. In no event shall said purchase price per share be less
than the par value of such stock subject to the option.
6.2 The Committee shall adopt criteria for the
determination of the fair market value of stock subject to any
option granted pursuant to this Plan.
7. TERM OF OPTIONS.
---------------
7.1 The term of each option granted pursuant to the Plan
shall be not more than ten (10) years from the date of granting
thereof. Within such ten year limit, options will be exercisable
only at such time or times, subject to the restrictions of
paragraphs 10, 11 and 14, and any other restrictions and
conditions, as the Committee shall in each instance approve, which
need not be uniform for all individuals to whom options are
granted.
7.2 Except as provided in paragraphs 10, 11 and 12, no
option may be exercised at any time unless the optionee is then an
employee of the Company or a subsidiary and has been so employed
continuously since the granting of the option.
8. DATE OF GRANT OF OPTION.
-----------------------
The grant of an option under the Plan shall take place on
or as of the date the Committee grants an employee a particular
option; provided, however, that if the resolution or other written
determination of the Committee specifies that an option is to be
granted as of and at some future date, the date of grant shall be
such future date.
9. OPTION AMOUNT.
-------------
9.1 Prior to January 1, 1987, the aggregate fair market
value (determined as of the time the option is granted) of the
stock for which an employee may be granted Incentive Stock Options
in any calendar year (under all plans of the Company and its
subsidiaries) shall not exceed $100,000 plus any Unused Limit
Carryover as defined in Section 422A of the Internal Revenue Code
of 1954, as amended.
9.2 After December 31, 1986, no employee may be granted
an Incentive Stock Option that is first exercisable during any
calendar year to the extent the aggregate fair market value of the
stock subject to all Incentive Stock Options granted to such
<PAGE>
employee that are first exercisable during such calendar year
exceeds $100,000 (such value determined on the date of each
respective grant).
10. EXERCISE OF OPTION.
------------------
10.1 Except as provided in paragraphs 11 and 14 and
unless otherwise provided in the terms under which the Committee
granted the option, each option shall be exercisable in whole or in
part at any time and from time to time during the terms of the
option.
10.2 To the extent that the right to purchase shares
under an option granted under the Plan is exercisable, the right
may be exercised from time to time by written notice to the Company
stating the number and identity of shares with respect to which the
option is being exercised, accompanied by payment either (i) in
cash, (ii) in the discretion of the Committee, by tender to the
Company of shares of the common stock of the Company, owned by the
optionee and registered in the optionee's name, having a fair
market value equal to the cash exercise price of the option being
exercised, or (iii) in the discretion of the Committee, by any
combination of (i) and (ii) hereof. The fair market value of stock
tendered as payment shall be determined according to the criteria
for determining fair market value adopted by the Committee or as
may be required in order to comply with or to conform to the
requirements of any applicable laws or regulations.
10.3 The holder of an option may, instead of exercising
an option as provided in paragraph 10.2, request that the Committee
authorize the payment to the holder of the difference between the
fair market value of part or all of the stock which is the subject
of the option and the exercise price of the option, such difference
to be determined as of the date the Committee receives the request
from the holder. The Committee in its sole discretion may grant
such a request from the holder with respect to part or all of the
shares of stock as to which the option is then exercisable and, to
the extent granted, shall direct the Company to make payment to the
holder either in cash or in common stock of the Company or in any
combination thereof, provided, however, that any common stock of
the Company shall be distributed based upon its fair market value
as of the date the Committee received the request from the holder.
An option shall be deemed to have been exercised and shall be
cancelled to the extent that the Committee grants a request
pursuant to this paragraph.
10.4 The proceeds of sale of stock subject to an option
shall be added to (a) the capital stock account of the Company to
the extent of the par value of the shares and (b) the excess to the
account reflecting capital in excess of par. In the case of
payments made in shares of common stock of the Company, such shares
evidencing payment shall be added to the common stock of the
Company, held in its treasury and used for corporate purposes as
<PAGE>
the Board of Directors shall determine, with appropriate credits to
the capital stock accounts of the Company.
10.5 After the exercise of an option, as above provided,
the Company shall within a reasonable time deliver to the person
exercising the option a certificate or certificates issued in the
name of the person who exercised the option and such additional
name, or names, if any, as may be requested (subject to the general
policy of the Company as to registration of shares), for the
appropriate number of shares, without liability of the person
exercising the option for any transfer or issue tax, state of
Federal, then payable. Each option granted under the Plan shall be
subject to the requirement that, if at any time the Board of
Directors of the Company shall determine, in its discretion, that
the listing, registration or qualification of the shares subject to
such option upon any securities exchange or under any state or
Federal law, or the consent or approval of any governmental or
regulatory body, is necessary or desirable, as a condition of, or
in connection with, the granting of such option or the issue or
purchase of shares thereunder, no such option may be exercised in
whole or in part unless such listing, registration, qualification,
consent or approval shall have been effected or obtained free of
any conditions not acceptable to the Board of Directors.
10.6 An optionee under an option granted under the Plan
shall have no rights as a shareholder with respect to any shares
covered by an option except to the extent that one or more
certificates for shares shall have been delivered to him upon due
exercise of an option as above provided.
10.7 Unless provided otherwise by its express terms, an
option granted under the Plan, including the exercise of the right
to request payment in lieu of exercise of the option pursuant to
paragraph 10.3, shall be nontransferable by the optionee other than
by will or the laws of descent and distribution or pursuant to a
qualified domestic relations order, as defined in the Internal
Revenue Code of 1986, as amended, or in Title I of the Employment
Retirement Income Security Act, or the rules thereunder, and shall
be exercisable during the optionees lifetime only by the optionee
or a transferee permitted pursuant to this paragraph 10.7, unless
the optionee or transferee is under legal disability, in which case
it may be exercised by the optionee's or transferee's duly
appointed legal representative.
11. TERMINATION OF EMPLOYMENT.
-------------------------
11.1 If an optionee under an option granted under the
Plan ceases to be an employee of the Company or a subsidiary for
any reason other than the death of the employee, all of the
optionee's options under the Plan (including options transferred in
accordance with paragraph 10.7 thereof) shall expire three months
after the optionee ceases to be an employee (or, if the optionee
becomes disabled within the meaning of Section 1O5(d)(4) of the
Internal Revenue Code, such options shall expire twelve months
<PAGE>
after the termination of the optionee's employment on account of
such disability) as to all shares for which they have not
theretofore been exercised, and during such three-month (or twelve-
month) period an option shall be exercisable only as to those
shares with respect to which it had become exercisable, under the
provisions of the particular option, on the date of termination of
employment; provided, however, that if the termination of
employment is (a) for a cause, (b} voluntary on the part of the
employee and without the written consent of the Company, or a
subsidiary, or (c) is in violation of any employment contract with
the Company or a subsidiary, then all options granted to such
person under the Plan (including options transferred in accordance
with paragraph 10.7 hereof) shall terminate and expire concurrently
with the termination of the optionee's employment and shall not
thereafter be exercisable to any extent; provided further however,
that no option may be exercised after the expiration date specified
for the particular option.
11.2 The transfer of an employee from one corporation to
another among the Company and its subsidiaries, leave of absence
(as described in Section 1.421-7(h)(2) of the Income Tax
Regulations) with the written consent of the Company or a
subsidiary, or retirement at or after the normal retirement date
defined in the retirement plan of the Company, shall not be a
termination of employment for the purposes of the Plan.
12. DEATH OF OPTIONEE.
-----------------
If an optionee under an option granted under the Plan
dies while an employee of the Company or a subsidiary, or dies
within three months after the termination of such employment, the
shares which the optionee was entitled to purchase on the date of
the optionee's death under an option or options under the Plan
may be purchased under the option or options at any time after the
optionee's death by the person or persons to whom said rights under
the option or options shall have passed (including transferees
permitted pursuant to paragraph 10.7 hereof) provided however, that
no option may be exercised after the earlier of (a) eighteen (18)
months after the original optionee's death or (b) the expiration
date specified for the particular option.
13. EFFECT OF MERGER, CHANGE IN CAPITALIZATION, ETC.
------------------------------------------------
13.1 In the event of any reclassification or increase or
decrease in the number of the issued shares of common stock of the
Company by reason of the payment of a stock dividend, a split-up or
consolidation of shares, a recapitalization, a combination or
exchange of shares or any like capital adjustment, then (a) the
aggregate number, and the class, or shares reserved under the Plan
shall be a though the shares reserved had been outstanding prior to
any adjustment as aforesaid, and (b) as to any outstanding
unexercised options theretofore granted under the Plan, there shall
be a corresponding adjustment as to the class and number of shares
<PAGE>
covered by each option, and as to the purchase price under each
option, to the end that the optionee's proportionate interest shall
be maintained as before the occurrence of such event without change
in the total purchase price applicable to said option.
13.2 In the event the Company shall approve a plan of
reorganization or of merger into or consolidation with any other
corporation, and appropriate provision is made for the resulting
corporation's assumption of the Plan under terms whereby
unexercised portion of each option then outstanding under the Plan
shall thereafter apply to such number and kind of securities as
would have been issuable by reason of such reorganization, merger
or consolidation, to a holder of the number of shares which were
subject to the option immediately prior to such reorganization,
merger or consolidation, without change in the total purchase price
applicable to said option, then such options shall continue under
the Plan.
13.3 In the event the Company shall approve a plan of
reorganization or of merger into or consolidation with any other
corporation, and appropriate provision is not made for the
assumption of the Plan by the resulting corporation as above
provided in paragraph 13.2, or in the event the Company shall
approve a plan of dissolution, liquidation or sale of substantially
all of its assets, then in any such event, the unexercised portion
of each option then outstanding under the Plan shall terminate as
of a date fixed by the Committee and approved by the Board of
Directors of the Company upon not less than thirty days written
notice to each optionee; provided however, that any such option
shall be accelerated and may be exercised in whole or in part
before the termination date fixed as aforesaid without regard to
any installment provisions thereof; provided further however, that
such termination date shall be fixed as a date on or before the
effective date of such reorganization, merger, consolidation,
dissolution, liquidation or sale.
13.4 In the event the Company shall issue additional
capital stock of any class for cash or other consideration, there
shall be no adjustment in the number of shares covered by the
outstanding options under the Plan, and no adjustment in the
purchase price under such options.
14. SUCCESSIVE OPTION GRANTS.
------------------------
Successive option grants may be made to any holder of
options under the Plan but each Incentive Stock Option granted
under this Plan by its terms shall provide that it may not be
exercised by the holder thereof while there is outstanding any
Incentive Stock Option as defined in Section 422A of the Internal
Revenue Code of 1954, as amended, granted at an earlier date, under
this Plan or otherwise, to such holder to purchase shares of the
Common Stock of the Company. For the purpose of this paragraph, an
Incentive Stock Option shall be deemed to be outstanding until such
option is exercised in full or expires by reason of lapse of time.
<PAGE>
15. TERMINATION AND AMENDMENT OF THE PLAN.
-------------------------------------
15.1 This Plan shall terminate on November 30, 1997, and
no option shall be granted hereunder after said date, but such
termination shall not affect any option theretofore granted. The
Board of Directors of the Company may suspend, discontinue or
terminate the Plan at any time, and may from time to time make such
changes in and additions to the Plan as the Board of Directors
shall deem advisable; provided, however, that the Board of
Directors may not, without approval by the shareholders of the
Company, change (a) the maximum number of shares for which options
may be granted under the Plan, (b) the minimum option price, (c)
the maximum periods during which options may be granted or
exercised, or (d) the provisions relating to the eligibility of
employees to whom options may be granted and to the eligibility of
members of the Committee.
15.2 Subject to other provisions of the Plan, no
termination or amendment of the Plan may, without the consent of
the optionee under an option then outstanding, terminate such
option or materially or adversely affect the rights of the optionee
thereunder.
16. SHAREHOLDER APPROVAL.
--------------------
No option granted under this Plan may be exercised in
whole or in part until this Plan is approved by the shareholders
holding a majority of the outstanding shares of the Company, which
approval must occur within the twelve month period after the date
the Plan is adopted by the Board of Directors of the Company. In
the event such shareholder approval is not forthcoming within the
time specified, this Plan and any options granted pursuant to it
shall be null and void.
17. AMENDMENTS TO INTERNAL REVENUE CODE OR REGULATIONS.
--------------------------------------------------
Any reference in this Plan to a section of the Internal
Revenue Code or a section of the Income Tax Regulations shall
include any amendments thereto and shall include such additional
sections of the Code or Regulations into which the substance of the
cited sections shall be incorporated.
corp\ina\stk-optn\ima
<PAGE>
EXHIBIT 4(ii)
NON-INCENTIVE STOCK OPTION AGREEMENT*
This Non-Incentive Stock Option Agreement (hereinafter
"Agreement"), entered into and effective as of the day of
, 19 , in the County of St. Louis, Missouri, by and
between INSITUFORM TECHNOLOGIES, INC., a Delaware corporation
(hereinafter referred to as the "Company"), and the Optionee whose
name is set forth on the last page hereof (hereinafter referred to
as the "Optionee").
WHEREAS, Optionee has devoted and intends to devote
significant time and effort to the success of the Company; and
WHEREAS, the Company has determined that it is in the best
interests of the Company to issue stock options to encourage
continued motivation and incentive by Optionee.
NOW, THEREFORE, in consideration of the mutual agreements
contained herein:
1. GRANT OF OPTION. Subject to the terms and conditions of
this Agreement, the Company hereby grants to Optionee the right,
privilege and option to purchase up to the number of shares of
Class A Common Stock, par value $.01, of the Company ("Common
Stock") set forth below the Optionee's name on the last page
hereof, at a price of $ per share. Such option shall be
immediately vested as to 20% of the covered shares and shall become
vested on a cumulative basis as to an additional 20% of such
covered shares on the anniversary date hereof in each of ,
, and , provided that the Optionee continues to be an
employee of the Company on each such anniversary date.
2. TERM OF OPTION. The term of this Option shall expire on
.
3. TIME OF EXERCISE OF OPTION. The Option shall be
exercisable during its term in whole or in part from time to time
beginning on the date hereof, but may be exercised only as to the
total number of shares then vested as described in paragraph 1,
less any shares previously purchased hereunder.
4. INCORPORATION OF STOCK OPTION PLAN. This Agreement is
entered into pursuant to the Insituform Mid-America, Inc. Stock
Option Plan, as amended (hereinafter "Plan"), approved by the
stockholders of the Company, which Plan is by this reference
incorporated herein and made a part hereof. A complete copy of the
Plan may be obtained from the Secretary of the Company. The Option
covered by this Agreement is not intended to be an Incentive Stock
Option as defined in Section 422 of the Internal Revenue Code of
1986, as amended. The material provisions of the Plan applicable to
this Option are as follows:
- ----------------
* as modified pursuant to Agreement and Plan of Merger dated as
of May 23, 1995 among Insituform Technologies, Inc., ITI
Acquisition Corp. and Insituform Mid-America, Inc.
<PAGE>
a. METHOD OF EXERCISE OF OPTION. This Option shall be
exercised, in whole or in part to the extent then exercisable, by
a written notice delivered to the Secretary of the Company stating
the number of shares with respect to which the Option is being
exercised, accompanied by payment in cash or, in the discretion of
the Company's Compensation Committee (the "Committee"), in
previously owned Class A Common Stock or a combination of cash and
Class A Common Stock, to the Company in the amount of the exercise
price of shares to be purchased.
b. STOCK APPRECIATION RIGHT. Instead of exercising an
Option, an Optionee may request that the Committee authorize
payment of the difference between the fair market value of part or
all of the Class A Common Stock subject to the Option and the
exercise price of the Option determined as of the date the
Committee receives the request from the Optionee. The Committee
shall have the sole authority to grant or deny such request.
c. TERMINATION OF OPTION. Subject to the express terms
and conditions of the Plan, this Option shall terminate in all
events on the earlier of (i) the date set forth in paragraph 2
hereof, or (ii) upon the expiration of three months after the
termination of Optionee's employment with the Company and its
subsidiaries; except that in the event of Optionee's death,
Optionee's personal representative may exercise this Option (to the
extent exercisable at the date of death) within eighteen (18)
months after Optionee's employment terminates because of death.
d. NON-TRANSFERABILITY OF OPTION. This Option is
non-transferable by Optionee except by will or the laws of descent
and distribution and shall be exercisable during Optionee's
lifetime only by Optionee.
e. ADJUSTMENTS UPON CHANGES IN CAPITALIZATION, ETC. In
the event of the payment of a stock dividend, a split-up or
consolidation of shares, or any like capital adjustment of the
Company as provided under the Plan, then to the extent the Option
hereunder remains outstanding and unexercised, there shall be a
corresponding adjustment as to the number of shares covered under
this Option, and in the purchase price per share, to the end that
Optionee shall retain the Optionee's proportionate interest without
change in the total purchase price under this Option.
IN WITNESS WHEREOF, the Company has caused this Agreement to
be executed by its Chairman of the Board or President, and Optionee
has signed the same in duplicate originals.
INSITUFORM TECHNOLOGIES, INC.
By:
---------------------------
------------------------------
Name of Optionee (Typed)
<PAGE>
------------------------------
Number of Shares covered
by Option
------------------------------
Signature of Optionee
------------------------------
Date
<PAGE>
<PAGE>
INCENTIVE STOCK OPTION AGREEMENT*
This Incentive Stock Option Agreement (hereinafter
"Agreement"), entered into and effective as of the day of
, 19 , in the County of St. Louis, Missouri, by and
between INSITUFORM TECHNOLOGIES, INC., a Delaware corporation
(hereinafter referred to as the "Company") and (hereinafter
referred to as the "Optionee"),
WHEREAS, Optionee has devoted and intends to devote
significant time and effort to the success of the Company; and
WHEREAS, the Company has determined that it is in the best
interests of the Company to issue stock options to encourage
continued motivation and incentive by Optionee.
NOW, THEREFORE, in consideration of the mutual agreements
contained herein:
1. GRANT OF OPTION. Subject to the terms and conditions of
this Agreement, the Company hereby grants to Optionee the right,
privilege and option to purchase shares of Class A Common Stock,
par value $.01, of the Company ("Common Stock") at a price of $
per share. Such Option shall become immediately vested as to 20% of
the covered shares and shall become vested as to an additional 20%
of such covered shares on the anniversary date hereof in each of
, , and , provided that the Optionee continues to
be an employee of the Company on each such anniversary date.
2. TERM OF OPTION. The term of this Option shall expire on
.
3. TIME OF EXERCISE OF OPTION. The Option shall be exercisable
during its term in whole or in part from time to time beginning six
months from the date hereof, but may be exercised only as to the
total number of shares then vested as described in paragraph 1,
less any shares previously purchased hereunder.
4. INCORPORATION OF STOCK OPTION PLAN. This Agreement is
entered into pursuant to the Insituform Mid-America, Inc. Stock
Option Plan, as amended (hereinafter "Plan") approved by the
unanimous written consent of all the stockholders of the Company,
which Plan is by this reference incorporated herein and made a part
hereof. A complete copy of the Plan may be obtained from the
Secretary of the Company. The Option covered by this Agreement is
intended to be an Incentive Stock Option as defined in Section 422A
of the Internal Revenue Code of 1954, as amended. The material
provisions of the Plan applicable to this Option are as follows:
- ----------------
* as modified pursuant to Agreement and Plan of Merger dated as
of May 23, 1995 among Insituform Technologies, Inc., ITI
Acquisition Corp. and Insituform Mid-America, Inc.
<PAGE>
<PAGE>
a. METHOD OF EXERCISE OF OPTION. This Option shall be
exercised, in whole or in part to the extent then exercisable, by
a written notice delivered to the Secretary of the Company stating
the number of shares with respect to which the Option is being
exercised, accompanied by payment in cash or, in the discretion of
the Company's Compensation Committee (the "Committee"), in
previously owned Class A Common Stock or a combination of cash and
Class A Common Stock, to the Company in the amount of the exercise
price of shares to be purchased.
b. STOCK APPRECIATION RIGHT. Instead of exercising an
Option, an Optionee may request that the Committee authorize
payment of the difference between the fair market value of part or
all of the Class A Common Stock subject to the Option and the
exercise price of the Option determined as of the date the
Committee receives the request from the Optionee. The Committee
shall have the sole authority to grant or deny such request.
c. TERMINATION OF OPTION. This Option shall terminate in
all events on the earlier of (i) the date set forth in paragraph 2
hereof, or (ii) on the termination of Optionee's employment with
the Company and its subsidiaries; except that in the event of
Optionee's death, Optionee's personal representative may exercise
this Option (to the extent exercisable at the date of death) within
eighteen (18) months after Optionee's employment terminates because
of death.
d. NON-TRANSFERABILITY OF OPTION. This Option is
non-transferable by Optionee except by will or the laws of descent
and distribution and shall be exercisable during Optionee's
lifetime only by Optionee.
e. ADJUSTMENTS UPON CHANGES IN CAPITALIZATION, ETC. In
the event of the payment of a stock dividend, a split-up or
consolidation of shares, or any like capital adjustment of the
Company as provided under the Plan, then to the extent the Option
hereunder remains outstanding and unexercised, there shall be a
corresponding adjustment as to the number of shares covered under
this Option, and in the purchase price per share, to the end that
Optionee shall retain the Optionee's proportionate interest without
change in the total purchase price under this Option.
IN WITNESS WHEREOF, the Company has caused this Agreement
to be executed by its Chairman of the Board or President, and
Optionee has signed the same, in duplicate originals on .
INSITUFORM TECHNOLOGIES, INC.
By:
---------------------------
------------------------------
Optionee
<PAGE>
INCENTIVE STOCK OPTION AGREEMENT*
This Incentive Stock Option Agreement ("Agreement"), entered
into as of the date set forth below, by and between INSITUFORM
TECHNOLOGIES, INC., a Delaware corporation (hereinafter referred to
as the "Company"), and the Optionee whose name is set forth below
(the "Optionee").
1. GRANT OF OPTION. Subject to the terms and conditions of
this Agreement, the Company hereby grants to Optionee the right,
privilege and option to purchase up to the number of shares of
Class A Common Stock, par value $.01, of the Company ("Common
Stock") set forth below, at the exercise price per share set forth
below (the "Option").
2. TERM OF OPTION. The term of the Option shall expire on
the tenth anniversary of the date set forth below.
3. TIME OF EXERCISE OF OPTION. The Option shall be
exercisable during its term in whole or in part from time to time
beginning on the date hereof.
4. INCORPORATION OF STOCK OPTION PLAN. This Agreement is
entered into pursuant to the Insituform Mid-America, Inc. Stock
Option Plan, as amended (hereinafter "Plan"), which Plan is by this
reference incorporated herein and made a part hereof. A complete
copy of the Plan may be obtained from the Secretary of the Company.
The Option herein granted is intended to be an Incentive Stock
Option as defined in Section 422 of the Internal Revenue Code of
1986, as amended. Material provisions of the Plan applicable to
this Option include the following:
a. METHOD OF EXERCISE OF OPTION. This Option may be
exercised, in whole or in part to the extent then exercisable,
only by a written notice delivered to the Secretary of the
Company stating the number of shares with respect to which the
Option is being exercised, accompanied by payment in cash.
b. TERMINATION OF OPTION. Subject to the express terms
and conditions of the Plan (which may, in certain instances,
provide for earlier termination) this Option shall terminate
in all events on the earlier of: (i) the date set forth in
paragraph 2 hereof, or (ii) upon the expiration of three
months after the termination of Optionee's employment with the
Company and its subsidiaries; except that in the event of
Optionee's death, Optionee's personal representative may
exercise this Option (to the extent exercisable at the date of
death) within 18 months after Optionee's employment terminates
because of death.
- ----------------
* as modified pursuant to Agreement and Plan of Merger dated as
of May 23, 1995 among Insituform Technologies, Inc., ITI
Acquisition Corp. and Insituform Mid-America, Inc.
<PAGE>
<PAGE>
c. NON-TRANSFERABILITY OF OPTION. This Option is
non-transferable by Optionee except by will or the laws of
descent and distribution and shall be exercisable during
Optionee's lifetime only by Optionee.
d. ADJUSTMENTS UPON CHANGES IN CAPITALIZATION, ETC. In
the event of the payment of a stock dividend, a split-up or
consolidation of shares, or any like capital adjustment of the
Company as provided under the Plan, then to the extent the
Option hereunder remains outstanding and unexercised, there
shall be a corresponding adjustment as to the number of shares
covered under this Option, and in the purchase price per
share, to the end and Optionee shall retain the Optionee's
proportionate interest in the Company without change in the
total exercise price under this Option.
IN WITNESS WHEREOF, the Company has caused this Agreement to
be executed by its Chairman of the Board, Vice Chairman or
President, and Optionee has signed the same in duplicate originals.
INSITUFORM TECHNOLOGIES, INC.
- ------------------------- By:
Number of Shares ---------------------------
Subject to Option Name:
Title:
- ------------------------- ------------------------------
Exercise Price per Share Name of Optionee (Typed)
- ------------------------- ------------------------------
Date Signature of Optionee
corp\ina\stk-optn\exhb.4
<PAGE>
EXHIBIT 4(iii)
State of Delaware
PAGE 1
Office of the Secretary of State
I, EDWARD J. FREEL, SECRETARY OF STATE OF THE STATE OF
DELAWARE, DO HEREBY CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY
OF THE CERTIFICATE OF INCORPORATION OF "INSITUFORM OF NORTH
AMERICA, INC.", FILED IN THIS OFFICE ON THE TWENTY-SEVENTH DAY OF
MARCH, A.D. 1980, AT 9 O'CLOCK A.M.
[SEAL OF THE SECRETARY OF STATE]
/s/ Edward J. Freel
Edward J. Freel, Secretary of State
0889565 8100 AUTHENTICATION: 7623654
950196143 DATE: 08-29-95
<PAGE>
<PAGE>
CERTIFICATE OF INCORPORATION
OF
INSITUFORM OF NORTH AMERICA, INC.
I, the undersigned, in order to form a corporation for the
purposes hereinafter stated, under and pursuant to the provisions
of the General Corporation Law of the State of Delaware, do hereby
certify as follows:
FIRST: The name of the corporation is
INSITUFORM OF NORTH AMERICA INC.
SECOND: The registered office of the corporation is to be
located at c/o United Corporate Services, Inc., 410 South State
Street, in the City of Dover, County of Kent, State of Delaware.
The name of its registered agent at that address is United
Corporate Services, Inc.
THIRD: The purpose of the corporation is to engage in any
lawful act or activity for which a corporation may be organized
under the General Corporation Law of Delaware.
FOURTH: The corporation shall be authorized to issue two
million five hundred thousand (2,500,000) shares consisting of one
million two hundred fifty thousand (1,250,000) Class A Common
shares, par value one cent ($0.01) per share; seven hundred fifty
thousand (750,000) Class B Common Shares, par value one cent
($0.01) per share; and five hundred thousand (500,000) Preferred
shares, par value ten cents ($0.10) per share.
The designations and the powers, preferences and rights, and
the qualifications or restrictions thereof are as follows:
1. The holders of the Class A Common shares shall be
entitled to vote in all matters requiring shareholder and
shall be entitled to elect one-third (1/3) of the members of
the board of Directors less one (1) director; the holders of
the Class B Common shares shall be entitled to vote in all
matters requiring shareholder and shall be entitled to elect
two-thirds (2/3) of the members of the Board of Directors;
and
the holders of the Preferred shares shall have the right to
elect one (1) member of the Board of Directors.
2. The holders of the Preferred shares shall be
entitled
to receive one dollar and twenty cents ($1.20) per share,
per
annum, cumulative dividends before any dividends are
declared
and paid to the holders of the Class A Common and the Class
B
Common shares.
<PAGE>
3. The holders of the Preferred shares shall be
entitled, upon dissolution or liquidation of the
corporation,
to share in the assets of the corporation, ratably , in an
aggregate amount of ten dollars ($10.00) per share plus
cumulative dividends declared and unpaid thereon before any
distribution is made to the Class A Common and Class B
Common
shares.
4. The holders of the Preferred shares shall, at
their
own discretion, be entitled to convert all of their shares
or
any part thereof into shares of Class A Common at the
following rates:
(a) Through November 30th, 1983, on a one
Preferred share for one Class A Common share
basis. (b) The number of Class A Common
shares to be issued on conversion of the
Preferred shares shall be reduced by ten
percent (10%) each year thereafter beginning
December 1st, 1983 until November 30th, 1993.
5. The corporation shall, beginning December 1st,
1983,
establish a Sinking Fund for the annual retirement of ten
percent (10%) of the outstanding Preferred shares.
<PAGE>
<PAGE>
FIFTH: The name and address of the incorporator are as
follows:
Name Address
Ray A. Barr 9 East 40th Street
New York, New York 10016
SIXTH: The following provisions are inserted for the
management of the business and for the conduct of the affairs of
the corporation, and for further definition, limitation and
regulation of the powers of the corporation and of its directors
and stockholders:
(1) The number of directors of the corporation shall be such
as from time to time shall be fixed by, or in the manner provided
in the by-laws. Election of directors need not be by ballot unless
the by-laws so provide.
(2) The Board of Directors shall have power without the
assent
or vote of the stockholders:
(a) To make, alter, amend, change, add to or repeal
the
By-Laws of the corporation; to fix and vary the amount to be
reserved for any proper purpose; to authorize and cause to
be
executed mortgages and liens upon all or any part of the
property of the corporation; to determine the use and
disposition of any surplus or net profits; and to fix the
times for the declaration and payment of dividends.
(b) To determine from time to time whether, and to
what
extent, and at what times and places, and under what
conditions the accounts and books of the corporation (other
than the stock ledger) or any of them, shall be open to the
inspection of the stockholders.
(3) The directors at their discretion may submit any
contract or act for approval or ratification at any annual
meeting of the stockholders or at any meeting of the
stockholders called for the purpose of considering any such
act or contract, and any contract or act that shall be
approved or be ratified by the vote of the holders of a
majority of the stock of the corporation which is
represented
in person or by proxy at such meeting and entitled to vote
thereat (provided that a lawful quorum of stockholders be
there represented in person or by proxy) shall be a valid
and
as binding upon the corporation and upon all the
stockholders
as though it had been approved or ratified by every
stockholder of the corporation, whether or not the contract
or
act would otherwise be open to legal attack because of
directors' interest, or for any other reason.
<PAGE>
(4) In addition to the powers and authorities
hereinbefore or by statute expressly conferred upon them,
the
directors are hereby empowered to exercise all such powers
and
do all such acts and things as may be exercised or done by
the
corporation; subject, nevertheless, to the provisions of the
statutes of Delaware, of this certificate, and to any
by-laws
from time to time made by the stockholders; provided,
however,
that no by-laws so made shall invalidate any prior act of
the
directors which would have been valid if such by-law had not
been made.
SEVENTH: The corporation shall, to the full extent
permitted
by Section 145 of the Delaware General Corporation Law, as amended,
from time to time, indemnify all persons whom it may indemnify
pursuant thereto.
EIGHTH: Whenever a compromise or arrangement is proposed
between this corporation and its creditors or any class of them
and/or between this corporation and its stockholders or any class
of them, any court of equitable jurisdiction within the State of
Delaware, may, on the application in a summary way of this
corporation or of any creditor or stockholder thereof or on the
application of any receiver or receivers appointed for this
corporation under the provisions of Section 291 of Title 8 of the
Delaware Code or on the application of trustees in dissolution or
of any receiver or receivers appointed for this corporation under
the provisions of Section 279 Title 8 of the Delaware Code order a
meeting of the creditors or class of creditors, and/or of the
stockholders or class of stockholders of this corporation, as the
case may be, to be summoned in such manner as the said court
directs. If a majority in number representing three-fourths (3/4)
in value of the creditors or class of creditors, and/or of the
stockholders or class of stockholders of this corporation, as the
case may be, agree to any compromise or arrangement and to any
reorganization of this corporation as consequence of such
compromise or arrangement, the said compromise or arrangement and
the said reorganization shall, if sanctioned by the court to which
the said application has been made, be binding on all the creditors
or class of creditors, and/or on all the stockholders or class of
stockholders, of this corporation, as the case may be, and also on
this corporation.
NINTH: The corporation reserves the right to amend, alter,
change or repeal any provision contained in this certificate of
incorporation in the manner now or hereafter prescribed by law, and
all rights and powers conferred herein on stockholders, directors
and officers are subject to this reserved power.
<PAGE>
<PAGE>
IN WITNESS WHEREOF, I have hereunto signed my name and
affirm
that the statements made herein are true under the penalties of
perjury, this 12th day of March, 1980.
/s/ RAY A. BARR
Ray A. Barr, Incorporator
<PAGE>
<PAGE>
STATE OF DELAWARE
PAGE 1
OFFICE OF THE SECRETARY OF STATE
I, EDWARD J. FREEL, SECRETARY OF STATE OF THE STATE OF
DELAWARE, DO HEREBY CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY
OF THE CERTIFICATE OF AMENDMENT OF "INSITUFORM OF NORTH AMERICA,
INC.", FILED IN THIS OFFICE ON THE SIXTEENTH DAY OF JANUARY, A.D.
1981, AT 9 O'CLOCK A.M.
[SEAL OF THE SECRETARY OF STATE]
/s/ Edward J. Freel
Edward J. Freel, Secretary of State
0889565 8100 AUTHENTICATION: 7623653
950196143 DATE: 08-29-95
<PAGE>
<PAGE>
CERTIFICATE OF AMENDMENT
OF
CERTIFICATE OF INCORPORATION
OF
INSITUFORM OF NORTH AMERICA, INC.
INSITUFORM OF NORTH AMERICA, INC., a corporation organized
and
existing under the General Corporation Law of the State of Delaware
(the "Corporation"), does hereby certify:
FIRST: The name of the Corporation is INSITUFORM OF NORTH
AMERICA, INC.
SECOND: The amendment to the Certificate of Incorporation
to
be effected hereby is as follows:
Paragraph "FOURTH" of the Certificate of Incorporation,
relating to the number of authorized shares of the Corporation is
hereby amended to read as follows:
FOURTH: The Corporation shall be authorized to issue
five million (5,000,000) shares consisting of three million
seven hundred fifty thousand (3,750,000) Class A common
shares, par value One Cent ($0.01) per share; seven hundred
fifty thousand (750,000) Class B common shares, par value
One
Cent ($0.01) per share; and five hundred thousand (500,000)
preferred shares, par value Ten Cents ($0.10) per share.
The designations and the powers, preferences and rights, and
the qualifications or restrictions thereof are as follows:
1. The holders of the Class A Common shares shall be
entitled to vote in all matters requiring shareholder and
shall be entitled to elect one-third (1/3) of the members of
the Board of Directors less one (1) director; the holders of
the Class B Common shares shall be entitled to vote in all
matters requiring shareholder and shall be entitled to elect
two-thirds (2/3) of the members of the Board of Directors;
and
the holders of the Preferred shares shall have the right to
elect one (1) member of the Board of Directors.
2. The holders of the Preferred shares shall be
entitled
to receive one dollar and twenty cents ($1.20) per share,
per
annum, cumulative dividends before any dividends are
declared
and paid to the holders of the Class A Common and the Class
B
Common shares.
3. The holders of the Preferred shares shall be
entitled, upon dissolution or liquidation of the
corporation,
to share in the assets of the corporation, ratably, in an
aggregate amount of ten dollars ($10.00) per share plus
cumulative dividends declared and unpaid thereon before any
distribution is made to the Class A Common and Class B
Common
shares.
<PAGE>
4. The holders of the Preferred shares shall, at
their
own discretion, be entitled to convert all of their shares
or
any part thereof into shares of Class A Common at the
following rates:
(a) Through November 30th, 1983, on a one
Preferred share for one Class A Common share
basis. (b) The number of Class A Common
shares to be issued on conversion of the
Preferred shares shall be reduced by ten
percent (10%) each year thereafter beginning
December 1st, 1983 until November 30th, 1993.
5. The corporation shall, beginning December 1st,
1983,
establish a Sinking Fund for the annual retirement of ten
percent (10%) of the outstanding Preferred shares."
THIRD: This amendment to the Corporation's Certificate of
Incorporation has been authorized by the consent, in writing,
setting forth the action so taken, unanimously signed by the
holders of all the outstanding shares entitled to vote thereon
pursuant to Sections 228 and 242 of the General Corporation Law of
the State of Delaware and by the unanimous consent of all of the
directors of the Corporation, all as duly adopted in accordance
with the provisions of Section 242 of the General Corporation Law
of the State of Delaware.
IN WITNESS WHEREOF, INSITUFORM OF NORTH AMERICA, INC. has
caused this certificate to be signed and attested by duly
authorized officers this 15th day of January, 1981.
INSITUFORM OF NORTH AMERICA, INC.
By: /s/ Matthew McPheely
President
/s/ John Slater
Secretary
<PAGE>
<PAGE>
UNANIMOUS WRITTEN CONSENT
The undersigned, constituting all of the shareholders of
INSITUFORM OF NORTH AMERICA, INC., and its Board of Directors
hereby consent to the adoption of the amendment reflected in the
attached Certificate of Amendment to the Certificate of
Incorporation of INSITUFORM OF NORTH AMERICA, INC. and direct that
it be filed forthwith with the appropriate authorities in the State
of Delaware and elsewhere.
SALISBURY LTD.
By: /s/ Paul
Church
Paul
Church
RINGWOOD LTD.
By:
Paul Church
<PAGE>
<PAGE>
UNANIMOUS WRITTEN CONSENT
The undersigned, constituting all of the shareholders of
INSITUFORM OF NORTH AMERICA, INC., and its Board of Directors
hereby consent to the adoption of the amendment reflected in the
attached Certificate of Amendment to the Certificate of
Incorporation of INSITUFORM OF NORTH AMERICA, INC. and direct that
it be filed forthwith with the appropriate authorities in the State
of Delaware and elsewhere.
SALISBURY LTD.
By:
Paul Church
RINGWOOD LTD.
By: /s/ Paul Church
Paul Church
<PAGE>
<PAGE>
STATE OF DELAWARE
PAGE 1
OFFICE OF THE SECRETARY OF STATE
I, EDWARD J. FREEL, SECRETARY OF STATE OF THE STATE OF
DELAWARE, DO HEREBY CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY
OF THE CERTIFICATE OF AMENDMENT OF "INSITUFORM OF NORTH AMERICA,
INC.", FILED IN THIS OFFICE ON THE TWENTY-EIGHTH DAY OF APRIL, A.D.
1981, AT 3 O'CLOCK P.M.
[Secretary of State Seal]
/s/ Edward J. Freel
Edward J. Freel, Secretary of State
AUTHENTICATION: 7623652
DATE: 08-29-95
<PAGE>
<PAGE>
CERTIFICATE OF AMENDMENT
OF
CERTIFICATE OF INCORPORATION
OF
INSITUFORM OF NORTH AMERICA, INC.
INSITUFORM OF NORTH AMERICA, INC., a corporation organized
and
existing under the General Corporation Law of the State of Delaware
(the "Corporation"), does hereby certify:
FIRST: The name of the Corporation is INSITUFORM OF NORTH
AMERICA, INC.
SECOND: The amendment to the Certificate of Incorporation
to
be effected hereby is as follows:
Paragraph "FOURTH" of the Certificate of Incorporation,
relating to the number of authorized shares of the Corporation is
hereby amended to read as follows:
"FOURTH: The Corporation shall be authorized to issue
ten million five hundred thousand (10,500,000) shares
consisting of eight million seven hundred fifty thousand
(8,750,000) Class A common shares par value One Cent ($0.01)
per share; one million two hundred fifty thousand
(1,250,000)
Class B common shares; par value One Cent ($0.01) per share;
and five hundred thousand (500,000) preferred shares, par
value Ten Cents ($0.10) per share.
The designations and the powers, preferences and rights, and
the qualifications or restrictions thereof are as follows:
1. The holders of all Common shares shall have equal
voting rights except in the election of Directors. The
Class
A shares shall be entitled to elect as a class one-third
(1/3)
of the members of the Board of Directors less directors
elected by the holders of the Company's preferred stock.
The
holders of the Class B Common shares shall be entitled to
elect two-thirds (2/3) of the members of the Board of
Directors. Notwithstanding the above, the Board of
Directors
may provide that in the event dividends on one or more
series
of the Company's preferred stock are in arrears, the holders
of such series may be entitled to elect additional
directors.
The class B shares shall be convertible into class A shares
at
the option of the holder thereof on a share for share basis.
2. The preferred shares shall be issued in one or
more
series designated by the Board of Directors without further
shareholder action and shall bear such terms and
designations
as the Board of Directors may fix, including dividend rates,
redemption rights, conversion rights, liquidation
preferences,
voting rights (provided that the Board of Directors may
designate that the holders of one or more series of
preferred
stock shall be entitled as a series to elect one director
and
the Board of Directors may at its discretion grant the
holders
<PAGE>
of one or more series of the Company's preferred stock the
right to elect additional directors in the event that
dividends on such series shall be in arrears) and such other
terms as the Board of Directors shall determine. Any
preferred shares reacquired by the Company may be reissued
without further shareholder approval.
THIRD: This amendment to the Corporation's Certificate of
Incorporation has been authorized by the consent, in writing,
setting forth the action so taken, unanimously signed by the
holders of all the outstanding shares entitled to vote thereon
pursuant to Sections 228 and 242 of the General Corporation Law of
the State of Delaware and by the unanimous consent of all of the
directors of the Corporation, all as duly adopted in accordance
with the provisions of Section 242 of the General Corporation Law
of the State of Delaware and restates the provisions of amendments
previously filed with the Secretary of State of Delaware.
IN WITNESS WHEREOF, INSITUFORM OF NORTH AMERICA, INC. has
caused this certificate to be signed and attested by duly
authorized officers as of the 15th day of January, 1981.
INSITUFORM OF NORTH
AMERICA, INC.
By: /s/ Matthew McPheely
President
/s/ John Slater
Secretary
<PAGE>
<PAGE>
STATE OF DELAWARE
PAGE 1
OFFICE OF THE SECRETARY OF STATE
I, EDWARD J. FREEL, SECRETARY OF STATE OF THE STATE OF
DELAWARE, DO HEREBY CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY
OF THE CERTIFICATE OF AMENDMENT OF "INSITUFORM OF NORTH AMERICA,
INC.", FILED IN THIS OFFICE ON THE SEVENTEENTH DAY OF JUNE, A.D.
1988, AT 9 O'CLOCK A.M.
[SEAL]
/s/ Edward J. Freel
Edward J. Freel, Secretary of State
AUTHENTICATION:
0889565 8100 7623651
DATE:
950196143 08-29-95
<PAGE>
<PAGE>
CERTIFICATE OF AMENDMENT
OF
CERTIFICATE OF INCORPORATION
OF
INSITUFORM OF NORTH AMERICA, INC.
INSITUFORM OF NORTH AMERICA, INC., a corporation organized
and
existing under and by virtue of the laws of the State of Delaware
(the "Corporation"), pursuant to the provisions of the General
Corporation Law of the State of Delaware (the "GCL") does hereby
certify as follows:
FIRST: The Certificate of Incorporation is hereby amended
by
adding a new Paragraph Tenth after Paragraph Ninth in the following
form:
TENTH: No person who is or was at any
time a director of the corporation shall be
personally liable to the corporation or its
stockholders for monetary damages for any
breach of fiduciary duty by such person as a
director; provided, however, that, unless and
except to the extent otherwise permitted from
time to time by applicable law, the provisions
of this Paragraph Tenth shall not eliminate or
limit the liability of a director (i) for
breach of the director's duty of loyalty to
the corporation or its stockholders, (ii) for
any act or omission by the director which is
not in good faith or which involves
intentional misconduct or a knowing violation
of law, (iii) under Section 174 of the General
Corporation Law of the State of Delaware, (iv)
for any transaction from which the director
derived an improper personal benefit or (v)
for any act or omission occurring prior to the
date this Paragraph Tenth becomes effective.
No amendment to or repeal of this Paragraph
Tenth shall apply to or have any effect on the
liability or alleged liability of any director
of the corporation for or with respect to any
act or omission of such director occurring
prior to such amendment or repeal.
SECOND: The amendment to the Certificate of Incorporation
of
the Corporation set forth in this Certificate of Amendment has been
duly adopted in accordance with the applicable provisions of
Section 242 of the GCL (a) the Board of Directors of the
Corporation having duly adopted resolutions setting forth such
amendment and declaring their advisability at a meeting of the
Board of Directors of the Corporation duly called and held on April
14, 1988 in conformity with the By-laws of the Corporation, and (b)
the stockholders of the Corporation having duly adopted such
amendment by the affirmative vote of the holders of a majority of
the outstanding stock entitled to vote thereon, on June 14, 1988,
<PAGE>
taken at the Corporation's annual meeting of stockholders duly
called and held upon notice in accordance with Section 222 of the
GCL.
THIRD: The capital of the Corporation will not be reduced
under or by reason of the amendment to its Certificate of
Incorporation set forth in this Certificate of Amendment.
IN WITNESS WHEREOF, the Corporation has caused this
certificate to be executed on its behalf by Robert M. Leopold, its
Chief Executive Officer and attested by Howard Kailes, its
Secretary, as of this 14th day of June, 1988.
/s/ ROBERT M. LEOPOLD
Robert M. Leopold
Chief Executive
Officer
[CORPORATE SEAL]
ATTEST:
/s/ HOWARD KAILES
Howard Kailes
Secretary
<PAGE>
<PAGE>
STATE OF NEW YORK )
) SS.:
COUNTY OF NEW YORK )
BEFORE ME, the undersigned authority, on this day personally
appeared ROBERT M. LEOPOLD, Chief Executive Officer, of INSITUFORM
OF NORTH AMERICA, INC., known to me to be the person and officer
whose name is subscribed to the foregoing instrument, and
acknowledged to me that he executed same for the purposes and
consideration therein expressed and in the capacity therein stated
as the act and deed of said corporation.
GIVEN UNDER MY HAND AND SEAL OF OFFICE, this 14th day of
June,
1988.
/s/ EVELYN M. THORNLEY
Notary Public in and for the State
of New York
My Commission Expires:
EVELYN M. THORNLEY
Notary Public, State of New York
No. 31-4679747
Qualified in New York County
Commission Expires Sept. 30, 1988
<PAGE>
<PAGE> PAGE 1
STATE OF DELAWARE
OFFICE OF THE SECRETARY OF STATE
I, EDWARD J. FREEL, SECRETARY OF STATE OF THE STATE OF
DELAWARE, DO HEREBY CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY
OF THE CERTIFICATE OF DESIGNATION OF "INSITUFORM OF NORTH AMERICA,
INC.", FILED IN THIS OFFICE ON THE SECOND DAY OF DECEMBER, A.D.
1988, AT 9 O'CLOCK A.M.
[SEAL]
/s/ EDWARD J. FREEL
Edward J. Freel, Secretary of State
AUTHENTICATION:
0889565 8100 7623650
DATE:
950196143
08-29-95
<PAGE>
<PAGE>
CERTIFICATE OF DESIGNATION
OF SERIES C CUMULATIVE, NON-VOTING PREFERRED STOCK
OF
INSITUFORM OF NORTH AMERICA, INC.
Pursuant to Section 151 of the
General Corporation Law of the State of Delaware
We, Robert M. Leopold, Chief Executive Officer, and Howard
Kailes, Secretary of Insituform of North America, Inc., a
corporation organized and existing under the General Corporation
Law of the State of Delaware, in accordance with the provisions of
Section 103 thereof, DO HEREBY CERTIFY:
That pursuant to the authority conferred upon the Board of
Directors by Paragraph Fourth of the Certificate of Incorporation
of said Corporation and in accordance with the provisions of
Section 151 of the General Corporation Law of the State of
Delaware, its Board of Directors on November 18, 1988, adopted the
following resolution designating a series of its Preferred Stock,
$.10 par value, as Series C Cumulative, Non-Voting Preferred Stock:
RESOLVED, that pursuant to the authority vested in
the Board of Directors of this Corporation in accordance
with the provisions of Paragraph Fourth of its
Certificate of Incorporation, a series of Preferred
Stock, $.10 par value, of this Corporation, be and it
hereby is created, and that the designation and amount
thereof and the voting powers, preferences, and other
special rights, qualifications, limitations and
restrictions thereof are as follows:
(A) Designation and Amount. An aggregate of
200,000
shares of Preferred Stock, $.10 par value, of the
Corporation are hereby constituted as a series
designated
as "Series C Cumulative, Non-Voting Preferred Stock
(the
"Series C Cumulative, Non-Voting Preferred Stock").
Such
number of shares may be increased or decreased by
resolution of the Board of Directors; provided, that
no
decrease shall reduce the number of shares of Series
C
Cumulative, Non-Voting Preferred Stock to a number
less
than the number of shares then outstanding plus the
number of shares reserved for issuance upon
satisfaction
of the conditions under any contingent rights granted
by
the Corporation with respect to Series C Cumulative,
Non-Voting Preferred Stock.
(B) Dividends.
(1) The holders of shares of Series C
Cumulative, Non-Voting Preferred Stock in
preference to the holders of class A common
stock,
<PAGE>
$.01 par value (the "Class A Common Stock"), of
the
Corporation and class B common stock, $.01 par
value (the "Class B Common Stock"), of the
Corporation, and of any other junior stock,
shall
be entitled to receive, when, as and if
declared by
the Board of Directors out of funds legally
available for that purpose, and to the extent
not
in violation of or in conflict with any
covenant
made or to be made by the Corporation under the
Loan Agreement dated December 20, 1985 between
The
Industrial Development Board of the City of
Memphis
and County of Shelby, Tennessee or the Guaranty
dated as of December 1, 1988 in favor of Third
National Bank in Nashville, as Trustee, or
extended
on substantially the same terms in favor of any
other financial institution (collectively, the
"Loan Documents"), semi-annual dividends
payable in
cash on the first day of January and July in
each
year (each such date being referred to herein
as a
"Semi-Annual Dividend Payment Date", commencing
on
the first Semi-Annual Dividend Payment Date
after
the first issuance of a share or fraction of a
share of Series C Cumulative, Non-Voting
Preferred
Stock, in an amount per share equal to $5.40.
(2) Dividends shall begin to accrue and
be
cumulative, whether or not earned or declared,
on
outstanding shares of Series C Cumulative,
Non-Voting Preferred Stock from and after the
date
of issue of such shares, unless the date of
issue
of such shares is prior to the record date for
the
first Semi-Annual Dividend Payment Date, in
which
case dividends on such shares shall begin to
accrue
from the date of issue of such shares, or
unless
the date of issue is a Semi-Annual Dividend
Payment
Date or is a date after the record date for the
determination of holders of shares of Series C
Cumulative, Non-Voting Preferred Stock entitled
to
receive a Semi-Annual Dividend and before such
Semi-Annual Dividend Payment Date, in either of
which events such dividends shall begin to
accrue
and be cumulative for such Semi-Annual Dividend
Payment Date. Accrued but unpaid dividends
shall
not bear interest. Dividends paid on the shares
of
Series C Cumulative, Non-Voting Preferred Stock
in
an amount less than the total amount of such
dividends at the time accrued and payable on
such
shares shall be allocated pro-rata on a
share-by-
share basis among all such shares at the time
outstanding. The Board of Directors may fix a
record date for the determination of holders of
shares of Series C Cumulative, Non-Voting
Preferred
Stock entitled to receive payment of a dividend
<PAGE>
declared, which record date shall not be more
than
60 days prior to the date fixed for the payment
thereof.
(C) Voting Rights. Except as set forth herein,
or
as otherwise provided by law, holders of Series C
Cumulative, Non-Voting Preferred Stock shall have no
voting rights. On all matters with respect to which
holders of the Series C Cumulative, Non-Voting
Preferred
Stock are entitled to vote as a single class as
aforesaid, each holder of Series C Cumulative,
Non-Voting
Preferred Stock afforded such class voting right shall
be
entitled to one vote for each share held.
(D) Certain Restrictions. Whenever semi-annual
dividends payable on the Series C Cumulative,
Non-Voting
Preferred Stock as provided in Section B hereof are in
arrears for three consecutive semi-annual periods,
thereafter and until all accrued and unpaid dividends,
whether or not earned or declared, on shares of Series
C
Cumulative, Non-Voting Preferred Stock outstanding
shall
have been paid in full, the Corporation shall not:
(1) declare or pay dividends on any
shares of
stock ranking junior (either as to dividends or
upon liquidation, dissolution or winding up) to
the
Series C Cumulative, Non-Voting Preferred
Stock;
(2) declare or pay dividends on any
shares
ranking pari passu (either as to dividends or
upon
liquidation, dissolution or winding up) with
the
Series C Cumulative, Non-Voting Preferred
Stock,
except dividends paid ratably on the Series C
Cumulative, Non-Voting Preferred Stock and all
such
parity stock on which dividends are payable or
in
arrears in proportion to the total amounts to
which
the holders of all such shares are then
entitled;
(3) redeem or purchase or otherwise
acquire
for consideration shares of any stock ranking
junior (either as to dividends or upon
liquidation,
dissolution or winding up) to the Series C
Cumulative, Non-Voting Preferred Stock,
provided
that the Corporation may at any time, redeem,
purchase or otherwise acquire shares of any
such
junior stock in exchange for shares of any
stock of
this Corporation ranking junior (either as to
dividends or upon dissolution, liquidation or
winding up) to the Series C Cumulative,
Non-Voting
Preferred Stock; and
<PAGE>
(4) redeem or purchase or otherwise
acquire
for consideration shares of Series C
Cumulative,
Non-Voting Preferred Stock, or any shares of
stock
ranking pari passu with the Series C
Cumulative,
Non-Voting Preferred Stock except in accordance
with a purchase offer made in writing or by
publication (as determined by the Board of
Directors) to all holders of such shares upon
such
terms as the Board of Directors, after
consideration of the respective annual dividend
rate and other relative rights and preferences
of
the respective series and classes, shall
determine
in good faith will result in fair and equitable
treatment among the respective series or
classes.
(E) Reacquired Shares. Any shares of the
Series C
Cumulative, Non-Voting Preferred Stock purchased or
otherwise acquired by this Corporation in any manner
whatsoever shall be retired and cancelled promptly
after
the acquisition thereof. All such shares shall upon
their cancellation become authorized but unissued as
shares of Preferred Stock and may be reissued as
Series
C Cumulative, Non-Voting Preferred Stock or as part of
a
new series of Preferred Stock subject to the
conditions
and restrictions of issuance set forth herein, in the
Certificate of Incorporation or as otherwise required
by
law.
(F) Liquidation, Dissolution or Winding Up.
(1) Upon any liquidation, dissolution or
winding up of this Corporation, no distribution
shall be made to the holders of shares of stock
ranking junior (either as to dividends, or upon
liquidation, dissolution or winding up) to the
Series C Cumulative, Non-Voting Preferred Stock
unless prior thereto, the holders of shares of
Series C Cumulative, Non-Voting Preferred Stock
shall have received $200 per share, plus an
amount
equal to accrued and unpaid dividends thereon,
whether or not declared or earned, to the date
of
such payment. After such payments to holders
of
Series C Cumulative, Non-Voting Preferred
Stock,
the holders thereof, as such, shall not have
any
right to participate in any further
distribution of
or payment out of the assets of the
Corporation.
(2) If upon any voluntary or involuntary
liquidation, dissolution or winding up of the
Corporation, the assets available for
distribution
to holders of shares of Series C Cumulative,
Non-Voting Preferred Stock shall be
insufficient to
pay such holders the full preferential amount
to
<PAGE>
which they are entitled, then such assets shall
be
distributed ratably among the shares of Series
C
Cumulative, Non-Voting Preferred Stock in
accordance with the respective preferential
amounts, including unpaid cumulative dividends,
if
any, payable with respect thereto.
(G) Redemption. Each share of Series C
Cumulative,
Non-Voting Preferred Stock shall, out of funds legally
available for that purpose, be redeemed by the
Corporation on the date (the "Redemption Date") which
falls five years from its date of issuance, at a
redemption price of $200, plus an amount equal to all
accrued and unpaid dividends on such share, whether or
not declared or earned, to the Redemption Date.
Notice
of each redemption shall be mailed at least 30 days
prior
to the Redemption Date with respect thereto, shall
state
the date, place and purchase price of such redemption
and
shall be given to the holders of record of the shares
of
Series C Cumulative, Non-Voting Preferred Stock to be
redeemed, by first class mail, postage pre-paid, at
such
holder's address of record. On the Redemption Date,
all
dividends on the shares to be redeemed shall cease to
accrue, all rights with respect to such shares so to
be
redeemed shall forthwith on such date cease and
determine
(except only the right of the holder to receive the
redemption price therefor, but without any interest),
and
such shares so called for redemption shall no longer
be
deemed outstanding. On or before each Redemption
Date,
the respective holders of record of shares to be
redeemed
shall deliver to the Corporation the certificates for
the
shares to be redeemed. Notwithstanding any other
provision contained in this Paragraph (G), in the
event
and to the extent that any redemption of shares of
Series
C Cumulative, Non-Voting Preferred Stock would violate
or
conflict with any covenant made or to be made by the
Corporation under the Loan Documents, the Redemption
Date
with respect to such shares shall be postponed to the
earliest date not resulting in such violation or
conflict.
(H) Junior Stock. For purposes hereof, the
term
"junior stock" shall mean the Class A Common Stock and
the Class B Common Stock and any other class of stock
of
the Corporation hereinafter authorized which shall
rank
junior to the Series C Cumulative, Non-Voting
Preferred
Stock as to all dividends or preference on
dissolution,
liquidation or winding up of the Corporation.
(I) No Pre-Emption; Amendment. No right to
subscribe for or to take any stock of any class or any
securities convertible to any stock, at any time
issued
by the Corporation shall vest in or accrue to any
holder
<PAGE>
of shares of Series C Cumulative, Non-Voting Preferred
Stock with respect to any shares which he holds. The
Certificate of Incorporation of this Corporation shall
not be amended in any manner which would materially
alter
or change the powers, preferences or special rights of
the Series C Cumulative, Non-Voting Preferred Stock so
as
to affect them adversely without the affirmative vote
of
the holders of at least two-thirds of the outstanding
shares of Series C Cumulative, Non-Voting Preferred
Stock, voting together as a single series.
This resolution was duly adopted by the Board of Directors
of
this Corporation at a meeting thereof duly called and held on
November 18, 1988, at which a quorum was present and acting
throughout.
IN WITNESS WHEREOF, the Corporation has caused its corporate
seal to be hereunder affixed and this Certificate of Designation to
be signed by Robert M. Leopold, its Chief Executive Officer and
attested to, by Howard Kailes, its Secretary, on the 1st day of
December, 1988.
INSITUFORM OF NORTH
AMERICA, INC.
By /s/ ROBERT M. LEOPOLD
Robert M. Leopold
Chief Executive
Officer
[SEAL]
Attest:
/s/ HOWARD KAILES
Howard Kailes
Secretary
<PAGE>
<PAGE>
STATE OF DELAWARE
OFFICE OF THE SECRETARY OF STATE
I, EDWARD J. FREEL, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO
HEREBY CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE
CERTIFICATE OF AMENDMENT OF "INSITUFORM OF NORTH AMERICA, INC.",
FILED IN THIS OFFICE ON THE TWENTY-SEVENTH DAY OF AUGUST, A.D.
1990, AT 11:45 O'CLOCK A.M.
[Secretary of State Seal]
/s/ EDWARD J. FREEL
Edward J. Freel, Secretary of State
AUTHENTICATION:
0889565 8100 7623649
DATE:
950196143 08-29-95
<PAGE>
<PAGE>
CERTIFICATE OF AMENDMENT
OF
CERTIFICATE OF INCORPORATION
OF
INSITUFORM OF NORTH AMERICA, INC.
INSITUFORM OF NORTH AMERICA, INC., a corporation organized
and
existing under and by virtue of the laws of the State of Delaware
(the "Corporation"), pursuant to the provisions of the General
Corporation Law of the State of Delaware (the "GCL") does hereby
certify as follows:
FIRST: The Certificate of Incorporation is hereby amended
by
deleting the first paragraph of Article Fourth in its present form
and substituting therefor a new paragraph in the following form:
FOURTH: The Corporation shall be authorized to issue
twenty-eight million two hundred fifty thousand (28,250,000)
shares consisting of twenty-five million (25,000,000) Class
A
common shares par value One Cent ($0.01) per share; one
million two hundred fifty thousand (1,250,000) Class B
common
shares; par value One Cent ($0.01) per share; and two
million
(2,000,000) preferred share, par value Ten Cents ($0.10) per
share.
SECOND: The amendment to the Certificate of Incorporation
of
the Corporation set forth in this Certificate of Amendment has been
duly adopted in accordance with the applicable provisions of
Section 242 of the GCL (a) the Board of Directors of the
Corporation having duly adopted resolutions setting forth such
amendment and declaring its advisability at a meeting of the Board
of Directors of the Corporation duly called and held on March 27,
1990 in conformity with the By-laws of the Corporation, and (b) the
stockholders of the Corporation having duly adopted such amendment
by the affirmative vote of the holders of a majority of the
outstanding stock entitled to vote thereon, and the affirmative
vote of a majority of holders of the class A common stock, $.01 par
value, of the Corporation, voting as a class, on August 24, 1990,
taken at the Corporation's annual meeting of stockholders duly
called and held upon notice in accordance with Section 222 of the
GCL.
THIRD: The capital of the Corporation will not be reduced
under or by reason of the amendments to its Certificate of
Incorporation set forth in this Certificate of Amendment.
IN WITNESS WHEREOF, the Corporation has caused this
certificate to be executed on its behalf by James D. Krugman, its
Chairman of the Board, and attested by Howard Kailes, its
Secretary, as of this 24th day of August 1990.
/s/ JAMES D. KRUGMAN
James D. Krugman
Chairman of the Board
<PAGE>
[Corporate Seal]
ATTEST:
/s/ HOWARD KAILES
Howard Kailes
Secretary
<PAGE>
<PAGE>
STATE OF NEW JERSEY )
)
COUNTY OF BERGEN )
BEFORE ME, the undersigned authority, on this day personally
appeared JAMES D. KRUGMAN, Chairman of the Board, and Howard
Kailes, Secretary, of INSITUFORM OF NORTH AMERICA, INC., known to
me to be the persons and officers whose names are subscribed to the
foregoing instrument, and acknowledged to me that they executed
same for the purposes therein expressed and in the capacity therein
stated as the act and deed of said corporation.
GIVEN UNDER MY HAND AND SEAL OF OFFICE, THIS 24TH DAY OF
AUGUST, 1990.
/S/ Carmen Aiello
Notary Public in and for
the
State of New Jersey
My Commission Expires:
CARMEN AIELLO
A Notary Public of New Jersey
My Commission Expires 2/28/96
<PAGE>
<PAGE>
STATE OF DELAWARE
PAGE 1
OFFICE OF THE SECRETARY OF STATE
I, EDWARD J. FREEL, SECRETARY OF STATE OF THE STATE OF
DELAWARE, DO HEREBY CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY
OF THE CERTIFICATE OF AMENDMENT OF "INSITUFORM OF NORTH AMERICA,
INC.", CHANGING ITS NAME FROM "INSITUFORM OF NORTH AMERICA, INC."
TO "INSITUFORM TECHNOLOGIES, INC.", FILED IN THIS OFFICE ON THE
NINTH DAY OF DECEMBER, A.D. 1992, AT 11:40 O'CLOCK A.M.
[Seal]
/s/ Edward J. Freel
Edward J. Freel, Secretary of State
AUTHENTICATION:
0889565 8100 7623648
DATE:
950196143
08-29-95
<PAGE>
<PAGE>
CERTIFICATE OF AMENDMENT
OF
CERTIFICATE OF INCORPORATION
OF
INSITUFORM OF NORTH AMERICA, INC.
INSITUFORM OF NORTH AMERICA, INC., a corporation organized
and
existing under the General Corporation Law of the State of Delaware
(the "Corporation") pursuant to the provisions of the General
Corporation Law of the State of Delaware (the "GCL") does hereby
certify as follows:
FIRST: The Certificate of Incorporation is hereby amended
as
follows:
(1) Article "FIRST" of the Certificate of Incorporation is
hereby amended in its entirety to read as follows:
"FIRST: The name of the corporation is INSITUFORM
TECHNOLOGIES, INC."
(2) Article "FOURTH" of the Certificate of Incorporation is
hereby amended in its entirety to read as follows:
"FOURTH: The corporation shall be authorized to issue
twenty-seven million (27,000,000) shares, consisting of twenty-five
million (25,000,000) Class A Common shares, par value one cent
($0.01) per share; and two million (2,000,000) Preferred shares,
par value ten cents ($0.10) per share ("Preferred Stock").
The shares of Preferred Stock shall be issued in one
or
more series designated by the Board of Directors without further
shareholder action and shall bear such terms and designation as the
Board of Directors may fix, including dividend rates, redemption
rights, conversion rights, liquidation preferences, voting rights
(provided that the Board of Directors may designate that the
holders of one or more series of Preferred Stock shall be entitled
as a series to elect one director and the Board of Directors may at
its discretion grant the holders of one or more series of the
corporation's shares of Preferred Stock the right to elect
additional directors in the event that dividends on such series
shall be in arrears) and such other terms as the Board of Directors
shall determine. Any shares of Preferred Stock reacquired by the
corporation may be reissued without further shareholder approval."
(3) Article "SIXTH" of the Certificate of Incorporation is
hereby amended in its entirety to read as follows:
"SIXTH: The following provisions are inserted for the
management of the business and for the conduct of the
affairs
of the corporation, and for further definition, limitation
and
regulation of the powers of the corporation and of its
directors and shareholders:
<PAGE>
(1) The number of directors of the corporation
shall
be such as from time to time shall be fixed by, or in
the
manner provided in, the by-laws; provided, however,
that
the number of directors of the corporation shall not
be
less than six (6) nor shall the number of directors of
the corporation exceed fifteen (15). Election of
directors need not be by ballot unless the by-laws so
provide.
(2) Effective as of the Effective Date (as such
term
is defined in that certain Agreement, dated July 3,
1992,
among the corporation, INA Acquisition Corp. and
Insituform Group Limited), as it may be amended from
time
to time (the "Acquisition Agreement"), the Board of
Directors shall be divided into three classes,
designated
Class I, Class II and Class III, as nearly equal in
number as possible. Members of all three classes will
be
appointed on the Effective Date by the Board of
Directors
in accordance with the terms of the Acquisition
Agreement. The initial term of office of directors of
Class I shall expire at the annual meeting of
shareholders in 1993; that of Class II shall expire at
the annual meeting of shareholders in 1994; and that
of
Class III shall expire at the annual meeting of
shareholders in 1995. At each succeeding annual
meeting
of shareholders beginning in 1993, successors to the
class of directors whose term expires at that annual
meeting shall be elected for a three-year term.
Additional directorships resulting from an increase in
number of directors shall be appointed among the
classes
as equally as possible. Vacancies, created from an
increase in the size of the Board of Directors, shall
be
filled by the affirmative vote of a majority of the
Board
of Directors then in office, or such greater
affirmative
vote of directors as may be specified from time to
time
in the By-laws of the corporation, provided that a
quorum
is present, and any other vacancy occurring in the
Board
of Directors may be filled by a majority of the
directors
then in office, which appointments shall be made in
accordance with Section 7.3 of the Acquisition
Agreement
so long as it is in effect, even if less than a
quorum,
or by a sole remaining director. Any additional
director
of any class elected to fill a vacancy resulting from
an
increase in such class shall hold office for a term
that
shall coincide with the remaining term of that class,
but
in no case will a decrease in the number of directors
shorten the term of any incumbent director. A
director
shall hold office until the annual meeting for the
year
in which his term expires and until his successor
shall
be elected and shall qualify, subject, however, to
prior
death, resignation, retirement, disqualification or
removal from office. Any director elected to fill a
vacancy not resulting from an increase in the number
of
directors shall have the same remaining term as that
of
his predecessor.
<PAGE>
Notwithstanding any provision of this Article
SIXTH,
whenever the holders of any one or more series of
Preferred Stock issued by the corporation shall have
the
right, voting separately by class or series, to elect
directors at an annual or special meeting of
shareholders
or any class or series, the election, term of office,
filling of vacancies and other features of such
directorships shall be governed by the terms of this
Certificate of Incorporation or the resolution or
resolutions adopted by the Board of Directors pursuant
to
Article FOURTH hereof applicable thereto, and such
directors so elected shall not be divided into classes
pursuant to this Article SIXTH unless expressly
provided
by such terms.
(3) The Board of Directors shall have power without
the
assent or vote of the shareholders:
(a) To make, alter, amend, change, add to or
repeal
the by-laws of the corporation; to fix and vary the
amount to be reserved for any proper purpose; to
authorize and cause to be executed mortgages and liens
upon all or any part of the property of the
corporation;
to determine the use and disposition of any surplus or
net profits; and to fix the times for the declaration
and
payment of dividends.
(b) To determine from time to time whether, and
to
what extent, and at what times and places, and under
what
conditions the accounts and books of the corporation
(other than the stock ledger) or any of them, shall be
open to the inspection of the shareholders.
(4) The directors at their discretion may submit any
contract or act for approval or ratification at any annual
meeting of shareholders or at any meeting of the
shareholders
called for the purpose of considering any such act or
contract, and any contract or act that shall be approved or
be
ratified by the vote of the holders of a majority of the
stock
of the corporation which is represented in person or by
proxy
at such meeting and entitled to vote thereat (provided that
a
lawful quorum of shareholders be there represented in person
or by proxy) shall be as valid and as binding upon the
corporation and upon all the shareholders as though it had
been approved or ratified by every shareholder of the
corporation, whether or not the contract or act would
otherwise be open to legal attack because of directors'
interest, or for any other reason.
(5) In addition to the powers and authorities
hereinbefore or by statute expressly conferred upon them,
the
directors are hereby empowered to exercise all such powers
and
do all such acts and things as may be exercised or done by
the
corporation; subject, nevertheless, to the provisions of the
statutes of Delaware, of this certificate, and to any
by-laws
<PAGE>
from time to time made by the shareholders; provided,
however,
that no by-laws so made shall invalidate any prior act of
the
directors which would have been valid if such by-law had not
been made."
(4) The Certificate of the Incorporation is hereby amended
to
add a new Article "ELEVENTH" after Article "TENTH" in the following
form:
"ELEVENTH: Subject to the rights of the holders of
any
class or series of Preferred Stock expressly set forth in
this
Certificate of Incorporation, the Certificate of Designation
related to such class or series of Preferred Stock or as
otherwise required by law, any action required or permitted
to
be taken by the shareholders of the corporation must be
effected exclusively at a duly called annual or special
meeting of such shareholders and may not be effected by any
consent in writing by such shareholders. This Article
ELEVENTH may not be repealed or amended in any respect, and
no
provision inconsistent with this Article ELEVENTH may be
adopted, unless such action is approved by the affirmative
vote of the holders of not less than eighty (80) percent of
the combined voting power of the then outstanding shares of
capital stock of the corporation entitled to vote generally
in
the election of directors."
SECOND: The amendments to the Certificate of Incorporation
of
the Corporation set forth in this Certificate of Amendment have
been duly adopted in accordance with the applicable provisions of
Section 242 of the GCL (a) the Board of Directors of the
Corporation having duly adopted resolutions setting forth such
amendments and declaring their advisability at a meeting of the
Board of Directors of the Corporation duly called and held on
September 15, 1992 in conformity with the By-laws of the
Corporation, and (b) the stockholders of the Corporation having
duly adopted such amendments by the affirmative vote of the holders
of the majority of the outstanding stock entitled to vote thereon,
and the affirmative vote of a majority of the outstanding stock of
each class entitled to vote thereon, at a special meeting of
stockholders duly called and held on December 3, 1992 upon notice
in accordance with Section 222 of the GCL.
IN WITNESS WHEREOF, INSITUFORM OF NORTH AMERICA, INC. has
caused this certificate to be signed and attested by duly
authorized officers as of the 9th day of December, 1992.
INSITUFORM OF NORTH
AMERICA, INC.
BY:/s/ James D. Krugman
James D. Krugman
Chairman of the
Board
ATTEST:
/s/ Howard Kailes
Howard Kailes
Secretary
<PAGE>
State of Delaware
Office of the Secretary of State
I, EDWARD J. FREEL, SECRETARY OF STATE OF THE STATE OF
DELAWARE, DO HEREBY CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY
OF THE CERTIFICATE OF DESIGNATION OF "INSITUFORM TECHNOLOGIES,
INC.", FILED IN THIS OFFICE ON THE SIXTH DAY OF SEPTEMBER, A.D.
1995, AT 4:30 O'CLOCK P.M. A CERTIFIED COPY OF THIS CERTIFICATE HAS
BEEN FORWARDED TO THE KENT COUNTY RECORDER OF DEEDS FOR RECORDING.
EDWARD J. FREEL
[SEAL] Edward J. Freel, Secretary of State
0889565 8100 AUTHENTICATION: 7631477
950202303 DATE: 09-07-95
<PAGE>
<PAGE>
CERTIFICATE ELIMINATING REFERENCE TO
SERIES C CUMULATIVE, NON-VOTING PREFERRED STOCK
FROM THE CERTIFICATE OF INCORPORATION
OF INSITUFORM TECHNOLOGIES, INC.
Pursuant to Section 151(g) of
the General Corporation Law of the State of Delaware
We, Jean-Paul Richard, President and Chief Executive
Officer,
and Howard Kailes, Secretary of Insituform Technologies, Inc., a
corporation organized and existing under the General Corporation
Law of the State of Delaware, in accordance with the provisions of
Section 103 thereof, DO HEREBY CERTIFY:
That in accordance with the provisions of Section 151(g) of
the General Corporation Law of the State of Delaware, its Board of
Directors on September , 1995, adopted the following resolutions
eliminating its Series C Cumulative, Non-Voting Preferred Stock,
$.10 par value:
WHEREAS, pursuant to a Certificate of Designation
filed
on behalf of the Corporation with the Secretary of State of
Delaware on December 2, 1988, this Corporation created its
Series C Cumulative, Non-Voting Preferred Stock, $.10 par
value (the "Series C Cumulative, Non-Voting Preferred
Stock");
and
WHEREAS, none of the authorized Series C Cumulative,
Non-Voting Preferred Stock so designated is outstanding; and
WHEREAS, none of the said Series C Cumulative,
Non-Voting
Preferred Stock of the Corporation will be issued;
NOW THEREFORE, BE IT RESOLVED, that the appropriate
officers of the Corporation be and hereby are authorized and
directed to file a certificate setting forth this resolution
with the Secretary of State of the State of Delaware
pursuant
to the provisions of Section 151(g) of the General
Corporation
Law of the State of Delaware for the purpose of eliminating
from the certificate of incorporation of the Corporation all
reference to the said Series C Cumulative, Non-Voting
Preferred Stock.
IN WITNESS WHEREOF, the Corporation has caused its corporate
seal to be hereunder affixed and this Certificate of Designation to
be signed by Jean-Paul Richard, its President and Chief Executive
Officer, and attested to by Howard Kailes, its Secretary, on the
6th day of September, 1995.
INSITUFORM
TECHNOLOGIES, INC.
By /s/ Jean-Paul
Richard
Jean-Paul Richard,
President
and Chief Executive
Officer
<PAGE>
Attest:
/s/ Howard Kailes
Howard Kailes, Secretary
<PAGE>
<PAGE>
OFFICE OF THE SECRETARY OF STATE
I, EDWARD J. FREEL, SECRETARY OF THE STATE OF DELAWARE, DO
HEREBY CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE
CERTIFICATE OF AMENDMENT OF "INSITUFORM TECHNOLOGIES, INC.", FILED
IN THIS OFFICE ON THE TWENTY-FIFTH DAY OF OCTOBER, A.D. 1995, AT 9
0'CLOCK A.M.
A CERTIFIED COPY OF THIS CERTIFICATE HAS BEEN FORWARDED TO
THE
KENT COUNTY RECORDER OF DEEDS FOR RECORDING.
s/Edward J. Freel
[Seal]
- --------------------------------
Edward J. Freel, Secretary of State
0889565 8100 AUTHENTICATION: 7686230
DATE: 10-25-95
<PAGE>
<PAGE>
CERTIFICATE OF AMENDMENT
OF
CERTIFICATE OF INCORPORATION
OF
INSITUFORM TECHNOLOGIES, INC.
INSITUFORM TECHNOLOGIES, INC., a corporation organized and
existing under the General Corporation Law of the State of Delaware
(the "Corporation") pursuant to the provisions of the General
Corporation Law of the State of Delaware (the "GCL") does hereby
certify as follows:
FIRST: The Certificate of Incorporation is hereby amended as
follows:
(1) Article "FOURTH" of the Certificate of Incorporation
is
hereby amended in its entirety to read as follows:
"FOURTH: The corporation shall be authorized to
issue forty-two million (42,000,000) shares, consisting
of forty million (40,000,000) Class A Common shares, par
value one cent ($0.01) per share; and two million
(2,000,000) Preferred shares, par value ten cents ($0.10)
per share ("Preferred Stock").
The shares of Preferred Stock shall be issued in one
or more series designated by the Board of Directors
without further shareholder action and shall bear such
terms and designation as the Board of Directors may fix,
including dividend rates, redemption rights, conversion
rights, liquidation preferences, voting rights (provided
that the Board of Directors may designate that the
holders of one or more series of Preferred Stock shall be
entitled as a series to elect one director and the Board
of Directors may at its discretion grant the holders of
one or more series of the corporation's shares of
Preferred Stock the right to elect additional directors
in the event that dividends on such series shall be in
arrears) and such other terms as the Board of Directors
shall determine. Any shares of Preferred Stock reacquired
by the corporation may be reissued without further
shareholder approval."
<PAGE>
(2) Article "SIXTH" of the Certificate of Incorporation is
hereby amended in its entirety to read as follows:
"SIXTH: The following provisions are inserted for
the management of the business and for the conduct of the
affairs of the corporation, and for further definition,
limitation and regulation of the powers of the
corporation and of its directors and shareholders:
(1) The number of directors of the corporation
shall be such as from time to time shall be fixed
by, or in the manner provided in, the by-laws;
provided, however, that the number of directors of
the corporation shall not be less than six (6) nor
shall the number of directors of the corporation
exceed fifteen (15). Election of directors need not
be by ballot unless the by-laws so provide.
(2) Effective as of the Effective Date (as
such term is defined in that certain Agreement,
dated July 3, 1992, among the corporation, INA
Acquisition Corp. and Insituform Group Limited), as
it may be amended from time to time (the
"Acquisition Agreement"), the Board of Directors
shall be divided into three classes, designated
Class I, Class II and Class III, as nearly equal in
number as possible. Members of all three classes
will be appointed on the Effective Date by the
Board of Directors in accordance with the terms of
the Acquisition Agreement. The initial term of
office of directors of Class I shall expire at the
annual meeting of shareholders in 1993; that of
Class II shall expire at the annual meeting of
shareholders in 1994; and that of Class III shall
expire at the annual meeting of shareholders in
1995. At each succeeding annual meeting of
shareholders beginning in 1993, successors to the
class of directors whose term expires at that
annual meeting shall be elected for a three-year
term. Additional directorships resulting from an
increase in number of directors shall be appointed
among the classes as equally as possible.
Vacancies, created from an increase in the size of
the Board of Directors, shall be filled by the
affirmative vote of a majority of the Board of
Directors then in office, or such greater
affirmative vote of directors as may be specified
from time to time in the By-laws of the
corporation, provided that a quorum is present, and
any other vacancy occurring in the Board of
Directors may be filled by a majority of the
directors then in office, which appointments shall
be made in accordance with Section 7.3 of the
Agreement and Plan of Merger dated as of May 23,
<PAGE>
1995 among the corporation, ITI Acquisition Corp. and
Insituform Mid-America, Inc. Any additional director
of
any class elected to fill a vacancy resulting from an
increase in such class shall hold office for a term
that
shall coincide with the remaining term of that class,
but
in no case will a decrease in the number of directors
shorten the term of any incumbent director. A director
shall hold office until the annual meeting for the
year
in which his term expires and until his successor
shall
be elected and shall qualify, subject, however, to
prior
death, resignation, retirement, disqualification or
removal from office. Any director elected to fill a
vacancy not resulting from an increase in the number
of
directors shall have the same remaining term as that
of
his predecessor.
Notwithstanding any provision of this Article
SIXTH, whenever the holders of any one or more
series of Preferred Stock issued by the corporation
shall have the right, voting separately by class or
series, to elect directors at an annual or special
meeting of shareholders or any class or series, the
election, term of office, filling of vacancies and
other features of such directorships shall be
governed by the terms of this Certificate of
Incorporation or the resolution or resolutions
adopted by the Board of Directors pursuant to
Article FOURTH hereof applicable thereto, and such
directors so elected shall not be divided into
classes pursuant to this Article SIXTH unless
expressly provided by such terms.
(3) The Board of Directors shall have power
without the assent or vote of the shareholders:
(a) To make, alter, amend, change, add
to
or repeal the by-laws of the corporation; to
fix and vary the amount to be reserved for any
proper purpose; to authorize and cause to be
executed mortgages and liens upon all or any
part of the property of the corporation; to
determine the use and disposition of any
surplus or net profits; and to fix the times
for the declaration and payment of dividends.
(b) To determine from time to time
whether, and to what extent, and at what times
and places, and under what conditions the
accounts and books of the corporation (other
than the stock ledger) or any of them, shall
be open to the inspection of the shareholders.
(4) The directors at their discretion may
submit any contract or act for approval or
ratification at any annual meeting of shareholders
<PAGE>
or at any meeting of the shareholders called for the
purpose of considering any such act or contract, and
any
contract or act that shall be approved or be ratified
by
the vote of the holders of a majority of the stock of
the
corporation which is represented in person or by proxy
at
such meeting and entitled to vote thereat (provided
that
a lawful quorum of shareholders be there represented
in
person or by proxy) shall be as valid and as binding
upon
the corporation and upon all the shareholders as
though
it had been approved or ratified by every shareholder
of
the corporation, whether or not the contract or act
would
otherwise be open to legal attack because of
directors'
interest, or for any other reason.
(5) In addition to the powers and authorities
hereinbefore or by statute expressly conferred upon
them, the directors are hereby empowered to
exercise all such powers and do all such acts and
things as may be exercised or done by the
corporation; subject, nevertheless, to the
provisions of the statutes of Delaware, of this
certificate, and to any by-laws from time to time
made by the shareholders; provided, however, that
no by-laws so made shall invalidate any prior act
of the directors which would have been valid if
such by-law had not been made."
SECOND: The amendments to the Certificate of Incorporation
of
the Corporation set forth in this Certificate of Amendment have
been duly adopted in accordance with the applicable provisions of
Section 242 of the GCL (a) the Board of Directors of the
Corporation having duly adopted resolutions setting forth such
amendments and declaring their advisability at a meeting of the
Board of Directors of the Corporation duly called and held on
August 1, 1995 in conformity with the By-laws of the Corporation,
and (b) the stockholders of the Corporation having duly adopted
such amendments by the affirmative vote of the holders of the
majority of the outstanding stock entitled to vote thereon at the
annual meeting of stockholders duly called and held on October 12,
1995 upon notice in accordance with Section 222 of the GCL.
<PAGE>
IN WITNESS WHEREOF, INSITUFORM TECHNOLOGIES, INC. has caused
this certificate to be signed and attested by duly authorized
officers as of the 25th day of October, 1995.
INSITUFORM TECHNOLOGIES,
INC.
By s/James D. Krugman
- ---------------------------
James D. Krugman
Chairman of the Board
ATTEST:
s/Howard Kailes
- -------------------------
Howard Kailes
Secretary
corp\ina\misc\exh.4ii
<PAGE>
EXHIBIT 4(iv)
BY-LAWS
OF
INSITUFORM TECHNOLOGIES, INC.
ARTICLE I - OFFICES
The principal offices of the corporation in the State of
Delaware shall be located in the City of Dover, County of Kent. The
Corporation may have such other offices, either within or without
the State of incorporation as the board of directors may designate
or as the business of the corporation may from time to time
require.
ARTICLE II - STOCKHOLDERS
1. ANNUAL MEETING.
The annual meeting of the stockholders shall be held at
such time and upon such date during the month of June in each year
as the Board of Directors may determine, for the purpose of
electing directors and for the transaction of such other business
as may come before the meeting. If the day fixed for the annual
meeting shall be a legal holiday such meeting shall be held on the
next succeeding business day.
2. SPECIAL MEETINGS.
Special meetings of the stockholders, for any purpose or
purposes, unless otherwise prescribed by statute, may be called by
either the chairman of the board, the president or by the
directors, and shall be called by the president at the request of
the holders of not less than fifty per cent of all the outstanding
shares of the Corporation entitled to vote at the meeting.
3. PLACE OF MEETING.
The directors may designate any place, either within or
without the State unless otherwise prescribed by statute, as the
place of meeting for any annual meeting or for any special meeting
called by the directors. A waiver of notice signed by all
stockholders entitled to vote at a meeting may designate any place,
either within or without the state unless otherwise prescribed by
statute, as the place for holding such meeting. If no designation
is made, or if a special meeting be otherwise called, the place of
meeting shall be the principal office of the corporation.
<PAGE>
4. NOTICE OF MEETING.
Written or printed notice stating the place, day and hour
of the meeting and, in the case of a special meeting, the purpose
or purposes for which the meeting is called, shall be delivered not
less than ten nor more than fifty days before the date of the
meeting, either personally or by mail, by or at the direction of
either the chairman of the board, the president, the secretary, or
the officer or persons calling the meeting, to each stockholder of
record entitled to vote at such meeting. If mailed, such notice
shall be deemed to be delivered when deposited in the United States
mail, addressed to the stockholder at his address as it appears on
the stock transfer books of the corporation, with postage thereon
pre-paid.
5. CLOSING OF TRANSFER BOOKS OR FIXING OF RECORD DATE.
For the purpose of determining stockholders entitled to
notice of or to vote at any meeting of stockholders or any
adjournment thereof, or stockholders entitled to receive payment of
any dividend, or in order to make a determination of stockholders
for any other proper purpose, the directors may fix in advance a
date as the record date for any such determination of stockholders,
such date in any case to be not more than sixty days and, in case
of a meeting of stockholders, not less than ten days prior to the
date on which the particular action requiring such determination of
stockholders is to be taken. If the stock transfer books are not
closed and no record date is fixed for the determination of
stockholders entitled to notice of or to vote at a meeting of
stockholders, or stockholders entitled to receive payment of a
dividend, the date on which notice of the meeting is mailed or the
date on which the resolution of the directors declaring such
dividend is adopted, as the case may be, shall be the record date
for such determination of stockholders. When a determination of
stockholders entitled to vote at any meeting of stockholders has
been made as provided in this section, such determination shall
apply to any adjournment thereof.
6. VOTING LISTS.
The officer or agent having charge of the stock transfer
books for shares of the corporation shall make, at least ten days
before each meeting of stockholders, a complete list of the
stockholders entitled to vote at such meeting, or any adjournment
thereof, arranged in alphabetical order, with the address of and
the number of shares held by each, which list, for a period of ten
days prior to such meeting, shall be kept on file at the principal
office of the corporation and shall be subject to inspection by any
stockholder at any time during usual business hours. Such list
shall also be produced and kept open at the time and place of the
meeting and shall be subject to the inspection of any stockholder
<PAGE>
during the whole time of the meeting. The original stock transfer
book shall be prima facie evidence as to who are the stockholders
entitled to examine such list or transfer books or to vote at the
meeting of stockholders.
7. QUORUM.
At any meeting of stockholders a majority of the
outstanding shares of the corporation entitled to vote, represented
in person or by proxy, shall constitute a quorum at a meeting of
stockholders. If less than said number of the outstanding shares
are represented at a meeting, a majority of the shares so
represented may adjourn the meeting from time to time without
further notice. At such adjourned meeting at which a quorum shall
be present or represented, any business may be transacted which
might have been transacted at the meeting as originally notified.
The stockholders present at a duly organized meeting may continue
to transact business until adjournment, notwithstanding the
withdrawal of enough stockholders to leave less than a quorum.
8. PROXIES.
At all meetings of stockholders, a stockholder may vote
by proxy executed in writing by the stockholder or by his duly
authorized attorney-in-fact. Such proxy shall be filed with the
secretary of the corporation before or at the time of the meeting.
9. VOTING.
Each stockholder entitled to vote in accordance with the
terms and provisions of the certificate of incorporation and these
by-laws shall be entitled to one vote, in person or by proxy, for
each share of stock entitled to vote held by such stockholders.
Upon the demand of any stockholder, the vote for directors and upon
any question before the meeting shall be by ballot. All elections
for directors shall be decided by plurality vote; all other
questions shall be decided by majority vote except as otherwise
provided by the Certificate of Incorporation or the laws of this
State.
10. ORDER OF BUSINESS.
The order of business at all meetings of the
stockholders, shall be as follows:
1. Roll call.
2. Proof of notice of meeting or waiver of notice.
3. Reading of minutes of preceding meeting.
<PAGE>
4. Reports of Officer.
5. Reports of Committees.
6. Election of Directors.
7. Unfinished Business.
8. New Business.
ARTICLE III - BOARD OF DIRECTORS
1. GENERAL POWERS.
The business and affairs of the corporation shall be
managed by its board of directors. The directors shall in all cases
act as a board, and they may adopt such rules and regulations for
the conduct of their meetings and the management of the
corporation, as they may deem proper, not inconsistent with these
by-laws and the laws of this State.
2. NUMBER OF DIRECTORS, TENURE AND QUALIFICATIONS.
The Board of Directors shall consist of thirteen (13)
directors. Such directors (except as hereinafter provided for the
filling of vacancies) shall be elected in accordance with the
Corporation's Certificate of Incorporation by the stockholders by
a plurality vote of the number of shares voting at the meeting at
which such election shall take place.
3. REGULAR MEETINGS.
A regular meeting of the directors, shall be held without
other notice than this by-law immediately after, and at the same
place as, the annual meeting of stockholders. The directors may
provide, by resolution, the time and place for the holding of
additional regular meetings without other notice than such
resolution.
4. SPECIAL MEETINGS.
Special meetings of the directors may be called by or at
the request of the president, the Chairman of the Board, or any two
directors. The person or persons authorized to call special
meetings of the directors may fix the place either within or
without the state or country, for holding any special meeting of
the directors called by them.
<PAGE>
<PAGE>
5. NOTICE.
Notice of any special meeting shall be given at least 24
hours previously thereto by written notice delivered personally, or
by telegram or telecopy or mailed to each director at his residence
or business address. If mailed, such notice shall be deemed to be
delivered when deposited in the United States mail so addressed,
with postage thereon prepaid. If notice be given by telegram, such
notice shall be deemed to be delivered when the telegram is
delivered to the telegraph company. The attendance of a director at
a meeting shall constitute a waiver of notice of such meeting,
except where a director attends a meeting for the express purpose
of objecting to the transaction of any business because the meeting
is not lawfully called or convened.
6. QUORUM.
At any meeting of the directors a majority shall
constitute a quorum for the transaction of business, but if less
than said number is present at a meeting, a majority of the
directors present may adjourn the meeting from time to time without
further notice.
7. MANNER OF ACTING.
The act of the majority of the directors present at a
meeting at which a quorum is present shall be the act of the
directors.
8. NEWLY CREATED DIRECTORSHIPS AND VACANCIES.
Any vacancy on the Board of Directors and any newly
created directorship resulting from an increase in the number of
directors may be filled by the directors in accordance with the
Corporation's Certificate of Incorporation.
9. REMOVAL OF DIRECTORS.
Any or all of the directors may be removed only for cause
by vote of the stockholders.
10. RESIGNATION.
A director may resign at any time by giving written
notice to the board, the president or the secretary of the
corporation. Unless otherwise specified in the notice, the
resignation shall take effect upon receipt thereof by the board or
such officer, and the acceptance of the resignation shall not be
necessary to make it effective.
<PAGE>
11. COMPENSATION.
No compensation shall be paid to directors, as such, for
their services, but by resolution of the board a fixed sum and
expenses for actual attendance at each regular or special meeting
of the board may be authorized. Nothing herein contained shall be
construed to preclude any director from serving the corporation in
any other capacity and receiving compensation therefor.
12. PRESUMPTION OF ASSENT.
A director of the corporation who is present at a meeting
of the directors at which action on any corporate matter is taken
shall be presumed to have assented to the action taken unless his
dissent shall be entered in the minutes of the meeting or unless he
shall file his written dissent to such action with the person
acting as the secretary of the meeting before the adjournment
thereof or shall forward such dissent by registered mail to the
secretary of the corporation immediately after the adjournment of
the meeting. Such right to dissent shall not apply to a director
who voted in favor of such action.
13. EXECUTIVE AND OTHER COMMITTEES.
The board, by resolution, may designate from among its
members an executive committee and other committees, each
consisting of one or more directors. Each such committee shall
serve at the pleasure of the board.
ARTICLE IV - OFFICERS
1. NUMBER.
The officers of the corporation shall be a chairman of
the board, a vice chairman of the board,a president, one or more
senior vice presidents, one or more vice presidents, a secretary
and a treasurer, each of whom shall be elected by the directors.
Such other officers and assistant officers as may be deemed
necessary may be elected or appointed by the directors.
2. ELECTION AND TERM OF OFFICE.
The officers of the corporation to be elected by the
directors shall be elected annually at the first meeting of the
directors held after each annual meeting of the stockholders. Each
officer shall hold office until his successor shall have been duly
elected and shall have qualified or until his death or until he
shall resign or shall have been removed in the manner hereinafter
provided.
<PAGE>
3. REMOVAL.
Any officer or agent elected or appointed by the
directors may be removed by the directors whenever in their
judgment the best interests of the corporation would be served
thereby, but such removal shall be without prejudice to the
contract, if any, of the person so removed.
4. VACANCIES.
A vacancy in any office because of death, resignation,
removal, disqualification or otherwise, may be filled by the
directors for the unexpired portion of the term.
4A. CHAIRMAN OF THE BOARD.
The Chairman of the Board shall preside, when present, at
all meetings of the Board of Directors and at all meetings of the
stockholders and will perform such other duties as may be
prescribed from time to time by the Board or these By-laws.
4B. VICE CHAIRMAN OF THE BOARD.
In the absence of the Chairman of the Board or in the
event of his death, inability or refusal to act, the Vice Chairman
of the Board shall perform the duties of the Chairman of the Board
and, when so acting, shall have all the powers of and be subject to
all the restrictions on the Chairman of the Board. The Vice
Chairman of the Board shall perform such other duties as may be
prescribed from time to time by the Board or these by-laws.
5. PRESIDENT.
The President shall be the chief executive officer of the
corporation and, subject to the control of the Board of Directors,
shall have general and active management of the business of the
corporation, and shall see that all orders and resolutions of the
Board and stockholders are carried into effect. He shall have the
general authority to execute bonds, deeds and contracts, in the
name of the corporation and affix the corporate seal thereto; to
sign stock certificates; to cause the employment or appointment of
such employees and agents of the corporation as the proper conduct
of operations may require, and to fix their compensation, subject
to the provisions of these By-laws; to remove or suspend any
employee or agent who shall have been employed or appointed under
his authority or under authority of an officer subordinate to him;
and, in general, to exercise all the powers and authority usually
appertaining to the chief executive officer of a corporation.
<PAGE>
6. VICE-PRESIDENT.
In the absence of the president or in the event of his
death, inability or refusal to act, one of the vice-presidents
designated by the directors shall perform the duties of the
president, and when so acting, shall have all the powers of and be
subject to all the restrictions upon the president. The
vice-president shall perform such other duties as from time to time
may be assigned to him by the president or by the directors.
7. SECRETARY.
The secretary shall keep the minutes of the stockholders'
and of the directors' meetings in one or more books provided for
that purpose, see that all notices are duly given in accordance
with the provisions of these by-laws or, as required, be custodian
of the corporate records and of the seal of the corporation and
keep a register of the post office address of each stockholder
which shall be furnished to the secretary by such stockholder, have
general charge of the stock transfer books of the corporation and
in general perform all duties incident to the office of secretary
and such other duties as from time to time may be assigned to him
by the president or by the directors.
8. TREASURER.
If required by the directors, the treasurer shall give a
bond for the faithful discharge of his duties in such sum and with
such surety or sureties as the directors shall determine. He shall
have charge and custody of and be responsible for all funds and
securities of the corporation; receive and give receipts for monies
due and payable to the corporation from any source, whatsoever, and
deposit all such monies in the name of corporation in such banks,
trust companies or other depositories as shall be selected in
accordance with these by-laws and in general perform all of the
duties incident to the office of treasurer and such other duties as
from time to time may be assigned to him by the president or by the
directors.
9. SALARIES.
The salaries of the officers shall be fixed from time to
time by the directors and no officer shall be prevented from
receiving such salary by reason of the fact that he is also a
director of the corporation.
<PAGE>
<PAGE>
ARTICLE V - CONTRACTS, LOANS, CHECKS AND DEPOSITS
1. CONTRACTS.
The directors may authorized any officer or officers,
agent or agents, to enter into any contract or execute and deliver
any instrument in the name of and on behalf of the corporation, and
such authority may be general or confined to specific instances.
2. LOANS.
No loans shall be contracted on behalf of the corporation
and no evidences of indebtedness shall be issued in its name unless
authorized by a resolution of the directors. Such authority may be
general or confined to specific instances.
3. CHECKS, DRAFTS, ETC.
All checks, drafts or other orders for the payment of
money, notes or other evidences of indebtedness issued in the name
of the corporation, shall be signed by such officer or officers,
agent or agents of the corporation and in such manner as shall from
time to time be determined by resolution of the directors.
4. DEPOSITS.
All funds of the corporation not otherwise employed shall
be deposited from time to time to the credit of the corporation in
such banks, trust companies or other depositaries as the directors
may select.
ARTICLE VI - CERTIFICATES FOR SHARES AND THEIR TRANSFER
1. CERTIFICATES FOR SHARES.
Certificates representing shares of the corporation shall
be in such form as shall be determined by the directors. Such
certificates shall be signed by any of the chairman of the board,
or the president, as authorized by the directors and the secretary,
or such other officers authorized by law and by the directors. All
certificates for shares shall be consecutively numbered or
otherwise identified. The name and address of the stockholders, the
number of shares and date of issue, shall be entered on the stock
transfer books of the corporation. All certificates surrendered to
the corporation for transfer shall be cancelled and no new
certificate shall be issued until the former certificate for a like
number of shares shall have been surrendered and cancelled, except
that in case of a lost, destroyed or mutilated certificate a new
one may be issued therefor upon such terms and indemnity to the
corporation as the directors may prescribe.
<PAGE>
2. TRANSFERS OF SHARES.
(a) Upon surrender to the corporation or the transfer
agent of the corporation of a certificate for shares duly endorsed
or accompanied by proper evidence of succession, assignment or
authority to transfer, it shall be the duty of the corporation to
issue a new certificate to the person entitled thereto, and cancel
the old certificate; every such transfer shall be entered on the
transfer book of the corporation which shall be kept at its
principal office.
(b) The corporation shall be entitled to treat the holder
of record of any share as the holder in fact thereof, and,
accordingly, shall not be bound to recognized any equitable or
other claim to or interest in such share on the part of any other
person whether or not it shall have express or other notice
thereof, except as expressly provided by the laws of this state.
ARTICLE VII - FISCAL YEAR
The fiscal year of the corporation shall begin on the first
day of January in each year.
ARTICLE VIII - DIVIDENDS
The directors may from time to time declare, and the
corporation may pay, dividends on its outstanding shares in the
manner and upon the terms and conditions provided by law.
ARTICLE IX - SEAL
The directors shall provide a corporate seal which shall be
circular in form and shall have inscribed thereon the name of the
corporation, the state of incorporation, year of incorporation and
the words, "Corporate Seal".
ARTICLE X - WAIVER OF NOTICE
Unless otherwise provided by law, whenever any notice is
required to be given to any stockholder or director of the
corporation under the provisions of these by-laws or under the
provisions of the articles of incorporation, a waiver thereof in
writing, signed by the person or persons entitled to such notice,
whether before or after the time stated therein, shall be deemed
equivalent to the giving of such notice.
<PAGE>
<PAGE>
ARTICLE XI - AMENDMENTS
Except as otherwise provided by law, the Board of Directors
may adopt, alter, amend or repeal the by-laws of the Corporation,
provided, however, that the stockholders, representing a majority
of all the shares issued and outstanding at any annual stock-
holders' meeting or at any special stockholders' meeting, may
repeal, alter or amend by-laws adopted by the Board or Directors
and may adopt new by-laws; provided, further, however, that the
size of the Board of Directors, as set forth in Section 2 of
Article III, may only be amended by a vote of at least 80% of the
members of the Board of Directors or by a vote of the stockholders,
representing a majority of all of the shares issued and
outstanding, at any annual stockholders' meeting or at any special
stockholders' meeting.
EXHIBIT 5
KRUGMAN, CHAPNICK & GRIMSHAW
Park 80 West - Plaza Two
Saddle Brook, New Jersey 07663
(201) 845-3434
November 2, 1994
Insituform Technologies, Inc.
1770 Kirby Parkway
Suite 300
Memphis, Tennessee 38138
Dear Sirs:
We have acted as counsel for Insituform Technologies, Inc., a
Delaware corporation (the "Company"), in connection with the
registration statement on Form S-8 being filed by the Company under
the Securities Act of 1933 with respect to 449,236 shares (the
"Shares") of the Company's class A common stock, $.01 par value,
which have been or are to be offered by the Company to its
employees and consultants pursuant to the Insituform Mid-America,
Inc. Stock Option Plan (the "Plan").
In connection with such registration statement, we have
examined such records and documents and such questions of law as we
have deemed appropriate for purposes of this opinion. On the basis
of such examination, we advise you that in our opinion:
(1) the Company has been duly incorporated and is
validly existing as a corporation in good standing under the
laws of the State of Delaware; and
(2) the Shares have been duly and validly authorized
and, when issued and paid for in accordance with the terms of
the Plan and stock options duly granted or to be granted
thereunder, will be validly issued, fully paid and non-
assessable.
<PAGE>
We hereby consent to the filing of this opinion as an exhibit
to the foregoing registration statement.
Very truly yours,
s/Krugman, Chapnick & Grimshaw
KRUGMAN, CHAPNICK & GRIMSHAW
