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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
SCHEDULE 13D
Under the Securities Exchange Act of 1934
(AMENDMENT NO. 3)
INSITUFORM TECHNOLOGIES, INC.
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(Name of Issuer)
CLASS A COMMON STOCK, 457667 10 3
$.01 PAR VALUE
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(Title of class of securities) (CUSIP number)
DENNIS J. BLOCK, ESQ.
WEIL, GOTSHAL & MANGES LLP
767 FIFTH AVENUE
NEW YORK, NEW YORK 10153
(212) 310-8000
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(Name, address and telephone number of person authorized to receive notices and
communications)
JULY 25, 1997
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(Date of event which requires filing of this statement)
If the filing person has previously filed a statement on Schedule 13G to report
the acquisition which is the subject of this Schedule 13D, and is filing this
schedule because of Rule 13d-1(b)(3) or (4), check the following box [_].
Check the following box if a fee is being paid with the statement [_].
(A fee is not required only if the reporting person: (1) has a previous
statement on file reporting beneficial ownership of more than five percent of
the class of securities described in Item 1; and (2) has filed no amendment
subsequent thereto reporting beneficial ownership of five percent or less of
such class.) (See Rule 13d-7.)
Note: When filing this statement in paper format, six copies of this statement,
including exhibits, should be filed with the Commission. See Rule 13d-1(a) for
other parties to whom copies are to be sent.
(Continued on following page(s))
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NYFS10...:\85\55385\0003\139\SCH7237P.470
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CUSIP No. 457667 10 3 13D Page 2
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1 NAME OF REPORTING PERSON:
S.S. OR I.R.S. IDENTIFICATION NO. JEROME KALISHMAN
OF ABOVE PERSON:
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2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP: (A) [X]
(B) [_]
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3 SEC USE ONLY
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4 SOURCE OF FUNDS: NOT APPLICABLE
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5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED [_]
PURSUANT TO ITEM 2(d) OR 2(e):
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6 CITIZENSHIP OR PLACE OF UNITED STATES
ORGANIZATION:
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NUMBER OF 7 SOLE VOTING POWER: 82,415
SHARES
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BENEFICIALLY 8 SHARED VOTING POWER: 3,015,433
OWNED BY
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EACH 9 SOLE DISPOSITIVE POWER: 82,415
REPORTING
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PERSON WITH 10 SHARED DISPOSITIVE POWER: 3,015,433
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11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY 3,097,848
REPORTING PERSON:
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12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES [_]
CERTAIN SHARES:
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13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11): 11.5%
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14 TYPE OF REPORTING PERSON: IN
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CUSIP No. 457667 10 3 13D Page 3
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1 NAME OF REPORTING PERSON:
S.S. OR I.R.S. IDENTIFICATION NO. ROBERT W. AFFHOLDER
OF ABOVE PERSON:
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2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP: (A) [X]
(B) [_]
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3 SEC USE ONLY
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4 SOURCE OF FUNDS: NOT APPLICABLE
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5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED [_]
PURSUANT TO ITEM 2(d) OR 2(e):
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6 CITIZENSHIP OR PLACE OF UNITED STATES
ORGANIZATION:
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NUMBER OF 7 SOLE VOTING POWER: 1,307,858
SHARES
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BENEFICIALLY 8 SHARED VOTING POWER: 0
OWNED BY
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EACH 9 SOLE DISPOSITIVE POWER: 1,307,858
REPORTING
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PERSON WITH 10 SHARED DISPOSITIVE POWER: 0
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11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY 1,307,858
REPORTING PERSON:
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12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES [_]
CERTAIN SHARES:
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13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11): 4.9%
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14 TYPE OF REPORTING PERSON: IN
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CUSIP No. 457667 10 3 13D Page 4
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1 NAME OF REPORTING PERSON:
S.S. OR I.R.S. IDENTIFICATION NO. NANCY F. KALISHMAN
OF ABOVE PERSON:
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2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP: (A) [X]
(B) [_]
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3 SEC USE ONLY
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4 SOURCE OF FUNDS: NOT APPLICABLE
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5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED [_]
PURSUANT TO ITEM 2(d) OR 2(e):
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6 CITIZENSHIP OR PLACE OF UNITED STATES
ORGANIZATION:
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NUMBER OF 7 SOLE VOTING POWER: 0
SHARES
--------------------------------------------------------------
BENEFICIALLY 8 SHARED VOTING POWER: 3,015,433
OWNED BY
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EACH 9 SOLE DISPOSITIVE POWER: 0
REPORTING
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PERSON WITH 10 SHARED DISPOSITIVE POWER: 3,015,433
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11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY 3,015,433
REPORTING PERSON:
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12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES [_]
CERTAIN SHARES:
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13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11): 11.2%
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14 TYPE OF REPORTING PERSON: IN
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CUSIP No. 457667 10 3 13D Page 5
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1 NAME OF REPORTING PERSON:
S.S. OR I.R.S. IDENTIFICATION NO. XANADU INVESTMENTS, L.P.
OF ABOVE PERSON:
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2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP: (A) [X]
(B) [_]
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3 SEC USE ONLY
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4 SOURCE OF FUNDS: NOT APPLICABLE
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5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED [_]
PURSUANT TO ITEM 2(d) OR 2(e):
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6 CITIZENSHIP OR PLACE OF MISSOURI
ORGANIZATION:
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NUMBER OF 7 SOLE VOTING POWER: 0
SHARES
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BENEFICIALLY 8 SHARED VOTING POWER: 2,869,274
OWNED BY
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EACH 9 SOLE DISPOSITIVE POWER: 0
REPORTING
--------------------------------------------------------------
PERSON WITH 10 SHARED DISPOSITIVE POWER: 2,869,274
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11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY 2,869,274
REPORTING PERSON:
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12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES [_]
CERTAIN SHARES:
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13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11): 10.7%
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14 TYPE OF REPORTING PERSON: PN
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This is Amendment No. 3 to a Statement on Schedule 13D with respect to the
class A common stock, $.01 par value (the "Common Stock"), of Insituform
Technologies, Inc., a Delaware corporation (the "Company"), filed by a group
comprised of Jerome Kalishman, Robert W. Affholder, Nancy F. Kalishman and
Xanadu Investments, L.P. (collectively, the "Reporting Persons"). Capitalized
terms used herein without definition shall have the meanings ascribed to them in
the Schedule 13D, as amended.
Item 2. Identity and Background.
As reported in Item 4 below, Kalishman and Affholder have executed a
definitive agreement with the Company, certain of its directors and other
persons settling the proxy contest of Kalishman and Affholder for the election
of a slate of nominees to the Board of Directors of the Company at the 1997
Annual Meeting. Accordingly, Affholder has withdrawn as a member of the group
filing this Amendment No. 3 to the Schedule 13D, effective with the filing with
the Securities and Exchange Commission (the "SEC") of this Schedule 13D.
Item 4. Purpose of Transaction.
On July 25, 1997, the Company, the Reporting Persons, certain directors of
the Company and Stephen P. Cortinovis entered into an Agreement (the
"Agreement") settling the proxy contest of Kalishman and Affholder for the
election of a slate of nominees to the Board of Directors of the Company at the
1997 Annual Meeting. Set forth below is a summary of the terms of the Agreement,
which is subject to and qualified by the terms of the Agreement, which is
attached to this Amendment No. 3 as an Exhibit and incorporated herein by
reference.
The Agreement provides for the submission to stockholders at the 1997
Annual Meeting of amendments to the Company's Certificate of Incorporation that
would eliminate the classification of the Company's Board of Directors and
cancel the arrangements set forth in Section 7.3 of the Agreement and Plan of
Merger dated as of May 23, 1995 among the Company, ITI Acquisition Corp. and
Insituform Mid-America, Inc. relating to the election and replacement of the
Company's directors. The Agreement also provides for the amendment to the
Company's Bylaws to reduce the size of the Board of Directors from thirteen to
eight, subject to automatic increase to nine upon the election or appointment of
the Additional Nominee (as defined in the Agreement).
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Subject to the stockholders' approval of the amendments to the Certificate
of Incorporation referred to above, the Agreement provides that the Board will
nominate and recommend for election as directors at the 1997 Annual Meeting
Kalishman, Affholder, Paul A. Biddelman, Stephen P. Cortinovis, Silas Spengler,
Anthony W. Hooper, Sheldon Weinig and Russell B. Wight, Jr. In addition, the
Agreement provides that Mr. Wight will also have the right to select one
additional nominee (the "Additional Nominee"), subject to the reasonable
approval of Mr. Kalishman.
Each party to the Agreement has agreed that he or it will cause all shares
of Common Stock beneficially owned by such party to be voted at the 1997 Annual
Meeting in favor of the amendments to the Company's Certificate of Incorporation
contemplated by the Agreement and the election of the agreed-upon nominees as
directors. Affholder and Kalishman agreed to terminate all activities with
respect to their solicitation of proxies in connection with the 1997 Annual
Meeting and agreed not to participate in any "solicitation" of any proxy with
respect to matters to be presented at the 1997 Annual Meeting.
The Agreement further provides that if during the period commencing with
the election of directors at the 1997 Annual Meeting and ending immediately
prior to the Company's 1999 Annual Meeting of Stockholders, any director then in
office resigns or is unable to serve for any reason, such vacancy will be filled
only with a designee chosen by both members of a nominating committee of the
Board of Directors consisting of Mr. Wight and Mr. Kalishman, subject to the
confirmation of the Board of Directors that such person possesses no
characteristics that would disqualify him under applicable law from serving as a
director. In the event Mr. Wight and Mr. Kalishman are unable to agree upon a
designee to fill a vacancy, the matter will be referred to an Independent
Nominator designated in the Agreement.
The Agreement also provides that during the period commencing on the date
of the Agreement and ending immediately prior to the 1999 Annual Meeting, each
party to the Agreement will, among other things, cause all shares of capital
stock of the Company that are beneficially owned by such party to be voted in
favor of the election of the Company's nominees to the Board of Directors at the
1998 Annual Meeting, will not directly or indirectly solicit any proxies or
consents with respect to the Company's voting stock or in any way participate in
any "solicitation" of any proxy with respect to shares of the Company's voting
stock or become a "participant" in any election contest with respect to the
Company (provided that the foregoing shall not apply to actions taken in advance
of the 1999 Annual
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Meeting of Stockholders with respect to actions to be taken at the 1999 Annual
Meeting, including, with limitation, the election of directors), will not form,
join or otherwise participate in any "group" with respect to any voting stock of
the Company, will not make any proposal or bring any business before any meeting
of stockholders of the Company and will not call, request a call, or seek to
call any special meeting of stockholders. The Agreement provides that the
foregoing provisions will not prevent any party from taking actions in response
to any "Extraordinary Proposal" (as defined in the Agreement) that is set forth
in any preliminary or definitive proxy statement filed by the Company with the
Commission.
The Agreement also provides for reimbursement of the expenses of Affholder
and Kalishman in connection with the proxy contest and the Amendment of the
Agreement, dated October 25, 1995, as previously amended November 18, 1996,
between the Company and Mr. Kalishman relating to Mr. Kalishman's service as
Vice Chairman of the Company to extend for an additional year the term thereof
(to December 9, 1999), provide for no compensation during the one-year extension
and provide for continued office arrangements and secretarial service at the
Company's head offices to be made available to Kalishman during the one-year
extension.
Item 6. Contracts, Arrangements, Undertakings or Relationships
with Respect to Securities of the Issuer.
See Item 4 above.
Item 7. Material to be Filed as Exhibits.
1. Agreement, dated of July 25, 1997 by and among Insituform Technologies,
Inc., Jerome Kalishman, Nancy F. Kalishman, The Jerome and Nancy Kalishman
Family Fund, Robert W. Affholder, Xanadu Investments, L.P., Paul A. Biddelman,
Stephen P. Cortinovis, Anthony W. Hooper, Silas Spengler, Sheldon Weinig and
Russell B. Wight, Jr.
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SIGNATURE
After reasonable inquiry and to the best knowledge and belief of the
undersigned, the undersigned certifies that the information set forth in this
statement is true, complete and correct.
Dated: July 25, 1997 /s/Jerome Kalishman
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Jerome Kalishman
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SIGNATURE
After reasonable inquiry and to the best knowledge and belief of the
undersigned, the undersigned certifies that the information set forth in this
statement is true, complete and correct.
Dated: July 25, 1997 /s/Robert W. Affholder
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Robert W. Affholder
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SIGNATURE
After reasonable inquiry and to the best knowledge and belief of the
undersigned, the undersigned certifies that the information set forth in this
statement is true, complete and correct.
Dated: July 25, 1997 /s/Nancy F. Kalishman
----------------------
Nancy F. Kalishman
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SIGNATURE
After reasonable inquiry and to the best knowledge and belief of the
undersigned, the undersigned certifies that the information set forth in this
statement is true, complete and correct.
Dated: July 25, 1997 Xanadu Investments, L.P.
By: /s/Jerome Kalishman
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EXHIBIT INDEX
Exhibit No. Description
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1. Agreement, dated of July 25, 1997 by and among Insituform
Technologies, Inc., Jerome Kalishman, Nancy F. Kalishman, The
Jerome and Nancy Kalishman Family Fund, Robert W. Affholder,
Xanadu Investments, L.P., Paul A. Biddelman, Stephen P.
Cortinovis, Anthony W. Hooper, Silas Spengler, Sheldon Weinig
and Russell B. Wight, Jr.
Exhibit 1
AGREEMENT, dated as of July 25, 1997, by and among Insituform
Technologies, Inc., a Delaware corporation (the "Company"); Jerome Kalishman
("Mr. Kalishman"), Nancy F. Kalishman ("Mrs. Kalishman"), The Jerome and Nancy
Kalishman Family Fund (the "Fund"), Robert W. Affholder ("Mr. Affholder"), and
Xanadu Investments, L.P. ("Xanadu"; Mr. Kalishman, Mrs. Kalishman, the Fund, Mr.
Affholder and Xanadu may be collectively referred to herein as the "Dissident
Group"); Paul A. Biddelman (Mr. "Biddelman"); Stephen P. Cortinovis ("Mr.
Cortinovis"); Anthony W. Hooper ("Mr. Hooper"); Silas Spengler ("Mr. Spengler");
Sheldon Weinig ("Mr. Weinig"); and Russell B. Wight, Jr. ("Mr. Wight"; the
Company, Mr. Kalishman, Mrs. Kalishman, the Fund, Mr. Affholder, Xanadu, Mr.
Biddelman, Mr. Cortinovis, Mr. Hooper, Mr. Spengler, Mr. Weinig and Mr. Wight
may be collectively referred to herein as the "parties" and may be individually
referred to herein as a "party").
WHEREAS, the Company and the Dissident Group wish to end the pending
proxy contest between them and to change the composition of the Board of
Directors of the Company (the "Board of Directors"); and
WHEREAS, in furtherance of the foregoing, and prior to the election
of directors at the 1997 Annual Meeting (as defined below), the Company and the
Dissident Group wish to eliminate the classification of the Board of Directors
and the arrangements for electing "groups" of directors referred to in Section
7.3 of the Agreement and Plan of Merger dated as of May 23, 1995 among the
Company, ITI Acquisition Corp., and Insituform Mid-America, Inc. (the "Merger
Agreement");
NOW, THEREFORE, in consideration of the mutual covenants and
agreements set forth herein the parties hereto agree as follows:
Section 1. Director Resignations. Prior to or contemporaneously with
the execution and delivery hereof by the parties hereto, the Company shall have
received the irrevocable resignations of Steven Roth, Brian Chandler, James D.
Krugman, William Gorham and Alvin J. Siteman from the Board of Directors, to be
effective no later than the succession to office of the directors elected at the
1997 Annual Meeting (as hereinafter defined). Any appointment to the Board of
Directors from the date hereof until the succession to office of the directors
elected at the 1997 Annual Meeting shall be subject to such
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director's contemporaneous execution and delivery to the Company of his
irrevocable resignation effective as aforesaid.
Section 2. Special Meeting of the Board of Directors. As soon as
possible after the date hereof, the President of the Company shall call a
meeting of the Board of Directors (the "Special Board Meeting") at which the
following items shall be submitted for approval:
(a) the amendment of Article SIXTH of the Company's
Certificate of Incorporation to eliminate classification of the Board of
Directors, and submission of the proposed amendment for approval to the
holders (the "Stockholders") of the shares of class A common stock, par
value $.01 per share ("Common Stock"), of the Company, at the Company's
1997 Annual Meeting of Stockholders to be held on August 21, 1997, or such
later date as shall be determined by the Company solely in order to
facilitate effectuation of the provisions of Section 2(f) hereof (the
"1997 Annual Meeting"), such amendment to be subject to and effective upon
completion of all Required Actions (as hereinafter defined), other than
any Required Action described under this paragraph (a) (for purposes
hereof, "Required Actions" shall mean, collectively: (w) the approval by
the Stockholders at the 1997 Annual Meeting of the matters described in
Sections 2(a) , 2(c) and, if required, 2(b) hereof; (x) the election at
the 1997 Annual Meeting, subject to the completion of all Required
Actions, of the New Directors (as hereinafter defined); (y) the approval
by the Board of Directors at the Special Board Meeting of the matters
described in Sections 2(a), (c), (d), (e) and (g) hereof; and (z)
compliance with Section 4(b) hereof);
(b) the amendment of Article III, Section 2 of the Company's
By-Laws to reduce the size of the Board of Directors from thirteen
directors to eight directors, provided that the size of the Board of
Directors shall increase automatically to nine directors upon the election
or appointment of the Additional Nominee (as hereinafter defined) to the
Board of Directors and, if such amendment is not approved by at least 80%
of the members of the Board of Directors, submission of the proposed
amendment of the Company's By-Laws for approval by Stockholders holding a
majority of the shares of Common Stock at the 1997 Annual Meeting, such
amendment to be subject to and effective upon completion of all Required
Actions, other than any Required Action described under this paragraph
(b);
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(c) the cancellation of the arrangements set forth in Section
7.3 of the Merger Agreement, and the amendment of Article SIXTH of the
Company's Certificate of Incorporation to provide that, subsequent to the
succession to office following the 1997 Annual Meeting of the New
Directors, vacancies in the Board of Directors will be filled as set forth
in this Agreement, such cancellation and amendment to be subject to and
effective upon completion of all Required Actions, other than any Required
Action described under this paragraph (c);
(d) the amendment of Article III of the Company's By-Laws to
add a new Section 14 to be entitled "NOTICE AND APPROVAL OF CERTAIN
ACTIONS," which would provide that, notwithstanding any other provision of
the Company's By-Laws (and except for the implementation of Sections 2(a),
(b), (c) and (e) and Section 6 hereof): (i) in the event that any director
proposes to bring before any regular or special meeting of the Company's
Board of Directors any proposal relating to any amendment of the Company's
Certificate of Incorporation or By-Laws or this Agreement, or any change
in the structure, composition (other than such director's resignation) or
governance of the Board of Directors (any such action shall be referred to
herein as a "Special Action"), such director must provide written notice
thereof (including a reasonably detailed description of such proposal) to
each member of the Board of Directors at least seven days prior to the
date of the directors' meeting at which the Special Action is to be
proposed; and (ii) the taking of any Special Action by the Board of
Directors must be approved by a majority of all directors then serving;
provided, however, that no Special Action which would have any effect
prior to the 1999 Annual Meeting (as hereinafter defined) may be taken if
such Special Action would conflict with, have the effect of modifying or
otherwise frustrating any provision of this Agreement, including, without
limitation, any amendment to Article SIXTH of the Company's Certificate of
Incorporation or Article III Section 2 of the Company's By-Laws, as such
provisions will be in effect pursuant to this Agreement following the 1997
Annual Meeting;
(e) the amendment of Article IV Section 4B of the Company's
By-Laws to provide that, notwithstanding any other provision of the
Company's By-Laws, the Vice Chairman of the Board, acting in any capacity,
shall not have the power to call any special meeting of Stockholders;
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(f) (i) the approval at the 1997 Annual Meeting of new
nominees for election to the Board of Directors (the "New Nominees"),
which New Nominees will consist of Mr. Affholder, Mr. Biddelman, Mr.
Cortinovis, Mr. Hooper, Mr. Kalishman, Mr. Spengler, Mr. Wight and Mr.
Weinig, each of whom will serve for an initial term of one year and until
such time as his successor has been duly elected and qualified, and the
submission of such nominees at the 1997 Annual Meeting with the
recommendation of the Board of Directors for election as directors by the
Stockholders, such election and succession to office to be subject to and
effective upon the completion of all Required Actions;
provided, however, that in the event that any of the New
Nominees is unable at the 1997 Annual Meeting to stand for election
for any reason, his replacement shall be designated as follows: (i)
Mr. Kalishman shall have the right to designate a replacement for
Mr. Affholder and Mr. Affholder shall have the right to designate a
replacement for Mr. Kalishman, (ii) Mr. Wight shall have the right
to designate a replacement for Mr. Weinig and Mr. Weinig shall have
the right to designate a replacement for Mr. Wight, (iii) Mr.
Biddelman shall have the right to designate a replacement for Mr.
Spengler and Mr. Spengler shall have the right to designate a
replacement for Mr. Biddelman, (iv) the Committee (as hereinafter
defined) shall have the right to designate a replacement for Mr.
Cortinovis (except that in the event that the Committee does not
select a replacement for Mr. Cortinovis within ten business days
after notice that he is unable to stand for election, his
replacement shall be selected by the Independent Nominator (as
hereinafter defined), who shall be instructed to select a designee
who meets the criteria set forth in clauses (i) and (ii) of Section
6 of this Agreement) and (v) the Board of Directors of the Company
shall have the right to designate a replacement for Mr. Hooper; and
provided, further, that Mr. Wight (or in the event of his
death, incompetence or resignation from the Board of Directors, Mr.
Weinig, the latter with full powers to designate his successor from
the then members of the Board in the event of his death,
incompetence or resignation from the Board of Directors) shall also
have the right to select one additional nominee (the "Additional
Nominee"), subject to the approval of Mr. Kalishman (or in the event
of his death, incompetence
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or resignation from the Board of Directors, Mr. Affholder, the
latter with full powers to designate his successor from the then
members of the Board in the event of his death, incompetence or
resignation from the Board of Directors); except that (1) such
approval may not be "unreasonably withheld" and (2) if such approval
is withheld, the grounds therefore must be stated in writing by Mr.
Kalishman in reasonable detail (an approval under this Section 2(f)
shall be deemed to be "unreasonably withheld" if (1) it is delayed
or delivered more than five business days after Mr. Kalishman is
notified of the proposed Additional Nominee and receives
biographical information regarding the proposed Additional Nominee
or (2) such approval is withheld for any reason other than the
proposed Additional Nominee (x) demonstrably having a material
financial or a close personal or familial relationship with another
director or affiliate of a director, (y) not being qualified to
serve as a director or (z) having refused to execute a counterpart
of this Agreement as contemplated by Section 9(m) hereof), and if
Mr. Wight deems that Mr. Kalishman's approval of any proposed
Additional Nominee has been unreasonably withheld upon the grounds
referred to in clause (y) immediately preceding, the matter shall
forthwith be referred to arbitration by the Independent Nominator
(as hereinafter defined) whose decision as to whether the proposed
Additional Nominee is qualified to serve as a director as aforesaid
shall be dispositive and binding; and
(ii) If such Additional Nominee has been approved, or such approval
has been unreasonably withheld, as provided in Section 2(f)(i) hereof
(and, if approval has been withheld upon the grounds referred to in clause
(y) immediately preceding, such approval has been determined by the
Independent Nominator to have been unreasonably withheld) prior to the
date of the 1997 Annual Meeting, the Additional Nominee shall be
recommended by the Company for election at the 1997 Annual Meeting, and
the 1997 Annual Meeting may be adjourned by the Company, if necessary, for
a reasonable period to prepare revised proxy materials which would include
information with respect to the Additional Nominee (the persons to be
presented to the Stockholders at the 1997 Annual Meeting in accordance
with this Section 2(f) shall be collectively referred to herein as the
"New Directors"). If the Additional Nominee has not been presented to the
Stockholders for election as a director at the 1997 Annual
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Meeting, Mr. Wight shall have the right thereafter to select the
Additional Nominee during a period ending two months after the date hereof
and (x) if such selection is approved, or such approval is unreasonably
withheld, as provided in Section 2(f)(i) hereof (and, if approval is
withheld upon the grounds referred to in clause (y) of Section 2(f)(i)
hereof, such approval has been determined by the Independent Nominator to
have been unreasonably withheld), the Additional Nominee shall be
appointed to the Board of Directors promptly thereafter and shall
thereafter be deemed a New Director and (y) if such selection (or any
selection pursuant to this clause (y)) is not approved as aforesaid, Mr.
Wight shall be entitled to an additional period expiring two months after
the date on which such non-approval has been finally determined to select
another proposed Additional Nominee in accordance with this Section 2(f);
provided, however, that in the event Mr. Wight fails to select a proposed
Additional Nominee within two months after the date hereof or, if
applicable, within any extension of such period: (1) the Additional
Nominee shall be selected by the Committee (as hereinafter defined) from a
list of three candidates provided by the Independent Nominator (as defined
below) each of whom (i) shall have appropriate qualifications to serve on
the Company's Board of Directors and (ii) to whom none of the criteria set
forth in clauses (x)-(y) of the last parenthetical phrase of Section
2(f)(i) hereof would apply; (2) in the event that both members of the
Committee are unable to select a nominee from the list provided by the
Independent Nominator within ten business days after receipt of such list,
the members of the Committee shall each eliminate one candidate from the
list; and (3) the remaining candidate shall then become the Additional
Nominee (and if any Additional Nominee is determined in accordance with
the foregoing provisions of this Section 2(f) and is subsequently unable
to serve, a substitute Additional Nominee shall be determined pursuant to
such provisions); and
(g) the amendment of the Agreement dated October
25, 1995, as previously amended November 18, 1996, between
the Company and Mr. Kalishman ("the Vice Chairmanship
Agreement") as follows:
(i) the reference under Section IIA of the Vice Chairmanship
Agreement to "December 9, 1998" shall be extended for an additional year
to read "December 9, 1999" (such extension of the Term, as defined under
the Vice
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Chairmanship Agreement, shall be referred to herein as the
"Extension Period");
(ii) no compensation pursuant to Section IIIA of the
Vice Chairmanship Agreement shall be paid to Mr. Kalishman
during the Extension Period; and
(iii) all other terms of the Vice Chairmanship Agreement shall
continue to apply during the Extension Period, including, but not limited
to, the continued provision to Mr. Kalishman of (x) office arrangements
and secretarial services at the Company's head offices which are
equivalent to those presently being provided to him under Section IIIB of
the Vice Chairmanship Agreement and (y) health benefits and the use of an
automobile as provided in such Section IIIB;
; and, subject to the applicable approvals thereof hereinabove set forth, the
parties hereby agree to the implementation of the foregoing provisions. Mr.
Kalishman and Mr. Affholder shall have the right to review the forms of the
proposed amendments to the Company's Certificate of Incorporation and By-Laws
described in Sections 2(a) - (e) hereof, and to the Vice Chairmanship Agreement
described in Section 2(g) hereof, prior to the submission of such amendments for
approval by the Board of Directors of the Company and the Company shall give due
consideration to any modifications to such proposed forms reasonably requested
by Mr. Kalishman and Mr. Affholder.
Section 3. Revised Proxy Materials. The Company agrees that, as
promptly as practicable after the date of the Special Board Meeting, it shall
prepare and file with the Securities and Exchange Commission (the "SEC") revised
proxy materials pursuant to which the Board of Directors will: (a) propose and
recommend for approval of the Stockholders the amendments to the Company's
Certificate of Incorporation described in Sections 2(a) and (c) hereof, and, if
required to be submitted to them hereunder, the amendment to the Company's
ByLaws described in Section 2(b) hereof, and (b) nominate and recommend the New
Directors for election to the Board of Directors, such election, and their
succession to office, to be subject to and effective upon the completion of the
Required Actions as provided herein. Each party hereto will cooperate with and
assist the Company in the preparation of the revised proxy materials described
in this Section 3. The Company agrees that Mr. Kalishman and Mr. Affholder shall
have the right to review and reasonably approve the revised proxy materials
prior to the initial filing thereof with the SEC. The Company shall
7
<PAGE>
have the right to postpone the 1997 Annual Meeting for such reasonable period of
time as may be necessary to permit clearance of revised proxy materials with the
SEC and/or to permit adequate opportunity for the timely mailing of such revised
proxy materials to the Stockholders.
Section 4. 1997 Annual Meeting of Stockholders. (a) Each party to
this Agreement (other than the Company) (i) shall cause all shares of Common
Stock beneficially owned (within the meaning of Regulation 13D and Rules 13d-3
and 13d-5 under the Securities Exchange Act of 1934 (the "Exchange Act")) by
such party to be voted at the 1997 Annual Meeting in favor of (x) the amendments
to the Company's Certificate of Incorporation described in Section 2(a) and (c)
hereof and, if required to be submitted to the Stockholders hereunder, the
amendment to Company's By-Laws described in Section 2(b) of this Agreement, and
(y) the election as aforesaid of the New Directors to the Board of Directors and
(ii) shall not bring any business before the 1997 Annual Meeting except as
expressly contemplated hereby.
(b) If all Required Actions have been completed (other than
the Required Action referred to in this Section 4(b)), as promptly as
practicable thereafter the Company shall duly file with the Secretary of
State of Delaware a Certificate of Amendment to its Certificate of
Incorporation setting forth the amendments that are referred to in
Sections 2(a) and 2(c) hereof.
Section 5. Termination of Proxy Contest. The members of the
Dissident Group (a) shall immediately terminate all activities with respect to
their solicitation of proxies in connection with the 1997 Annual Meeting or any
adjournment thereof, (b) shall not, directly or indirectly solicit any proxies
or participate in any "solicitation" of any "proxy" (as such terms are defined
in Rule 14a-1 under the Exchange Act) with respect to matters to be presented at
the 1997 Annual Meeting and shall not become a "participant" (as such term is
used in Rule 14a-11 under the Exchange Act) in any election contest relating to
the 1997 Annual Meeting, (c) shall promptly terminate all agreements and
understandings supporting Mr. Affholder's inclusion in, and shall promptly
remove Mr. Affholder from, the "group" referred to in the amendment to the
Schedule 13D dated as of June 11, 1997 filed by members of the Dissident Group
(the "Dissident 13D Group"; the Dissident Group after compliance with this
clause (c) being referred to as the "Kalishman Group"), (d) shall promptly file
an amendment to such Schedule 13D, and to any and all other statements filed by
any member of the Dissident 13D Group pursuant to Section 13(d) of the Exchange
Act, to
8
<PAGE>
reflect the termination of the proxy contest and the other provisions of this
Agreement (including eliminating references to any plan or proposal referred to
in paragraph (d) of Item 4 of Schedule 13D under the Exchange Act), and (e)
shall not take any other actions inconsistent with the matters contemplated
hereby. The Company shall bear the reasonable out-of-pocket costs and expenses,
not to exceed $150,000, of the Dissident 13D Group incurred in connection with
their activities prior to the date hereof with respect to their solicitation of
proxies in connection with the 1997 Annual Meeting, which the members thereof
currently estimate at $125,000. Such amounts shall be paid by the Company within
five business days after receipt of appropriate evidence of such costs and
expenses.
Section 6. Election of Directors After 1997 Annual Meeting. If
during the period commencing with the succession to office of the New Directors
following the 1997 Annual Meeting and ending immediately prior to the Company's
1999 Annual Meeting of Stockholders (the "1999 Annual Meeting") at which
directors are elected, any director then in office resigns or is unable to serve
for any reason, such vacancy shall be filled only with a designee chosen by both
members of a Nominating Committee of the Board of Directors (the "Committee")
consisting of Mr. Wight (or, in the event of his death, incompetence or
resignation from the Board of Directors, Mr. Weinig, the latter with full power
to designate his successor in the event of his death, incompetence or
resignation from the Board of Directors) and Mr. Kalishman (or, in the event of
his death, incompetence or resignation from the Board of Directors, Mr.
Affholder, the latter with full power to designate his successor in the event of
his death, incompetence or resignation from the Board of Directors), subject to
the confirmation of the Board of Directors that such person possesses no
characteristics that would disqualify him under applicable law from serving as a
director, and thereafter the Company shall nominate and recommend such designee
for election to the Board of Directors; provided, however, that in the event
that Mr. Wight and Mr. Kalishman (or their respective successors, if applicable)
are unable to agree upon a designee to fill a vacancy on the Board of Directors
within 30 days after such vacancy has been created, the matter shall be referred
to Directorship, 8 Sound Shore Drive, Greenwich, Connecticut 06830 (the
"Independent Nominator"), who shall be instructed to provide the Nominating
Committee with a list of three candidates (i) who have appropriate
qualifications to serve on the Company's Board of Directors and (ii) to whom
none of the criteria set forth in clauses (x) - (y) of the last parenthetical
phrase of Section 2(f)(i) hereof would apply. In the event that both members of
the Committee are unable to select a designee from the list
9
<PAGE>
provided by the Independent Nominator within five business days after receipt of
such list, the members of the Committee shall each eliminate one candidate from
the list and the remaining candidate shall then become the designee. The fees,
if any, of the Independent Nominator shall be paid by the Company. At the
Company's 1998 Annual Meeting of Stockholders (the "1998 Annual Meeting"), the
Company will nominate and recommend for election as directors of the Company the
New Directors then in office and any director chosen pursuant to the foregoing
provisions of this Section 6 (such persons nominated by the Company shall be
referred to herein as the "Company Nominees") and during the period commencing
with the succession to office of the New Directors following the 1997 Annual
Meeting and ending with the 1999 Annual Meeting, the Company will not nominate
or recommend for election as a director any person who is not a Company Nominee.
Section 7. No Proxy Contests or Other Stockholder Actions. During
the period commencing on the date hereof and ending immediately prior to the
1999 Annual Meeting, each party to this Agreement (other than the Company):
(a) shall cause all shares of capital stock of the Company
which have the right to vote generally in the election of directors,
including, without limitation, shares of Common Stock (collectively,
"Voting Stock"), that are beneficially owned (within the meaning of
Regulation 13D and Rules 13d-3 and 13d-5 under the Exchange Act) by such
party (i) to be present, in person or by proxy, at all meetings of
Stockholders so that all such shares may be counted for the purpose of
determining if a quorum is present at such meetings, (ii) to be voted as
provided in Section 4 and in favor of the election of the Company Nominees
to the Board of Directors at the 1998 Annual Meeting, and (iii) to be
voted in favor of persons nominated and recommended by the Company in any
other election of directors;
(b) shall not directly or indirectly (except through the
Company pursuant to due authorization) solicit any proxies or consents
with respect to Voting Stock or in any way participate in any
"solicitation" of any "proxy" with respect to shares of Voting Stock (as
such terms are defined in Rule 14a-1 under the Exchange Act) or become a
"participant" in any election contest with respect to the Company (as such
term is used in Rule 14a-11 under the Exchange Act) or request or induce
or attempt to induce any other person to take any such actions or attempt
to advise, counsel or otherwise influence in any way any person with
10
<PAGE>
respect to the voting of Voting Stock; provided however that this Section
6(b) shall not apply to actions taken in advance of the 1999 Annual
Meeting with respect to actions to be taken at the 1999 Annual Meeting,
including, without limitation, the election of directors;
(c) shall not (i) form, join or otherwise participate in any
"group" (within the meaning of Section 13(d)(3) of the Exchange Act or
Rule 13d-5 thereunder) with respect to any Voting Stock (a "13D Group"),
(ii) otherwise act in concert with any other person for the purpose of
holding or voting Voting Stock, or (iii) file any amendment to any
Schedule 13D that relates to a plan or proposal referred to in paragraphs
(d) or (g) of Item 4 of Schedule 13D or that contains any statement that
is in any way inconsistent with the provisions of the Agreement; provided
that this clause (c) shall not apply to any arrangements that are
reflected in the Company's proxy statement dated June 6, 1997, without
reference to any supplement or amendment thereto (the "1997 Proxy
Statement") or to any 13D Group formed for the purposes of conducting a
solicitation or otherwise taking action with respect to actions to be
taken at the 1999 Annual Meeting, including, without limitation, the
election of directors, and clause (i) (with respect to participation) and
clause (ii) of this paragraph (c) shall not apply to the Kalishman Group;
(d) shall not deposit any Voting Stock in a voting trust or
subject any Voting Stock to any arrangement or agreement with respect to
the voting of such Voting Stock or other agreement having similar effect,
except that this clause (d) shall not apply to any arrangements that are
reflected in the 1997 Proxy Statement;
(e) except as expressly contemplated hereby, shall not make
any proposal (including any proposal pursuant to Rule 14a-8 under the
Exchange Act) or bring any business before any meeting of Stockholders
and, other than actions proposed or taken at any meeting of the Board of
Directors, shall not take or seek to take any action in the name or on
behalf of the Company except pursuant to the performance of any
responsibilities attendant to any office in the Company held by such party
or pursuant to a resolution adopted by the Board of Directors;
(f) shall not call, request the call, or seek to
call, any special meeting of Stockholders; and
11
<PAGE>
(g) shall not enter into any discussions, negotiations,
arrangements or understandings with any other person with respect to any
of the foregoing matters referred to in this Section 7;
provided, however, that clauses (b), (c) and (d) and (insofar as it relates to
clauses (b), (c) or (d), clause (g) of this Section 7), shall not prevent any
party hereto from taking any of the actions referred to in such clauses to the
extent (but solely to the extent) that such actions are taken in response to any
"Extraordinary Proposal" (as hereinafter defined) that is set forth in any
preliminary or definitive proxy statement filed by the Company with the SEC; and
provided further that, notwithstanding the first three lines of this Section 7,
if any directors other than the Company Nominees are elected at the 1998 Annual
Meeting as the result, directly or indirectly, of a breach of this Agreement or
any failure to vote in favor of matters specified herein, by any party or
parties hereto, the obligations of such breaching or non-voting party or
parties, and its affiliates (as defined in Rule 12b-2 under the Exchange Act),
under this Section 7 shall not terminate at the time specified above but shall
terminate on December 31, 1999. For purposes hereof, an "Extraordinary Proposal"
shall mean any proposal of the Company other than a proposal regarding any of
the matters referred to in clauses (1) - (4) of Rule 14a-6(a) under the Exchange
Act, as in effect on the date of this Agreement, and other than the matters to
be voted upon pursuant to Section 4 hereof.
Section 8. Termination of the Agreement. In the event that either
(i) the Stockholders fail to approve the amendments to the Company's Certificate
of Incorporation described in Section 2(a) and (c) hereof and, if required to be
submitted to them hereunder, the amendment to Company's By-Laws described in
Section 2(b) hereof, at the 1997 Annual Meeting, or (ii) the Board of Directors
fails to approve the amendments to the Company's Certificate of Incorporation
described in Sections 2 (a) and (c) hereof or the amendments to the Company's
By-Laws as described in Section 2(d) and (e) hereof or fails to approve the New
Nominees or the Additional Nominee as contemplated hereunder or fails to approve
the matter described in Section 2(g) hereof, this Agreement, and all obligations
of the parties hereunder, shall automatically terminate and the 1997 Annual
Meeting shall be adjourned or postponed and reconvened on or rescheduled to
October 21, 1997; provided that, if any such non- approval by the Stockholders
or the Board of Directors is the result directly or indirectly of a breach of
this Agreement, or any failure to vote in favor in the specified matters, by any
12
<PAGE>
party or parties hereto, the obligations of such breaching or non-voting party
or parties, and its affiliates (defined as aforesaid), hereunder shall not
terminate as provided above in this Section 8 but shall terminate on December
31, 1999, and the 1997 Annual Meeting shall be adjourned and reconvened on such
date as shall be determined by the Board of Directors.
Section 9. Miscellaneous.
(a) All notices, requests or instruction hereunder shall be in
writing and delivered personally or sent by registered or certified mail,
postage prepaid or by telecopy (or like transmission), as follows:
(1) if to the Company:
702 Spirit 40 Park Drive
Chesterfield, MO 63005
Attention: Vice President - General Counsel
Fax: (314) 530-8701
with a copy to:
Howard Kailes, Esq.
Krugman Chapnick & Grimshaw LLP
Park 80 West - Plaza Two
Saddle Brook, New Jersey 07663
Fax: (201) 845-9627
(2) if to any other party hereto, at its
address set forth in the records of the
Company.
Any of the above addresses may be changed at any time by notice given as
provided above; provided, however, that any such notice of change of address
shall be effective only upon receipt. All notices and other communications given
to any party hereto in accordance with the provisions hereof shall be deemed to
have been given on the date of receipt, provided that any notice or other
communication that is received other than during regular business hours of the
recipient shall be deemed to have been given at the opening of business on the
next business day of the recipient.
13
<PAGE>
(b) This Agreement contains the entire agreement between the
parties hereto with respect to the transactions contemplated hereby and,
subject to and effective upon completion of all Required Actions,
supersedes and amends all prior understandings, arrangements and
agreements with respect to the subject matter hereof, including, without
limitation, Section 7.3 of the Merger Agreement and Section 7.3 of the
Agreement dated as of July 3, 1992, among the Company, INA Acquisition
Corp. and Insituform Group Limited. No modification hereof shall be
effective unless in writing and signed by the party against which it is
sought to be enforced. The parties hereto may, by written agreement, make
any modification or amendment of this Agreement, but no such modification
or amendment will be effective unless signed by all of the parties hereto.
The captions appearing herein are for the convenience of the parties only
and shall not be construed to affect the meaning of the provisions of this
Agreement.
(c) Each of the parties hereto shall use such party's
reasonable best efforts to take such actions as may be necessary or
reasonably requested by the other parties hereto to carry out and
consummate the transactions contemplated by this Agreement. No party to
this Agreement shall directly or indirectly (i) challenge the validity or
enforceability of any provision of this Agreement or the matters
contemplated hereby or (ii) commence any lawsuit or other legal
proceeding, or take any other action, that seeks to frustrate the
performance of this Agreement in accordance with its terms.
(d) This Agreement shall be governed by and construed in
accordance with the laws of the State of Delaware applicable in the case
of agreements made and to be performed entirely within such State.
(e) Each of the parties hereto recognizes that any breach of
the terms of this Agreement may give rise to irreparable harm for which
money damages would not be an adequate remedy, and accordingly agree that,
in addition to other remedies, any nonbreaching party shall be entitled to
an injunction or injunctions to prevent breaches of the provisions of this
Agreement and to enforce the terms and provisions of this Agreement by a
decree of specific performance in any action instituted in any court of
the United States or any state hereof having jurisdiction without the
necessity of proving the inadequacy as a remedy of money damages.
14
<PAGE>
(f) This Agreement and all of the provisions hereof shall be
binding upon and inure to the benefit of the parties hereto and their
respective successors, heirs, legal representatives and permitted assigns,
but neither this Agreement nor any of the rights, interests, or
obligations hereunder may be assigned by any of the parties hereto without
the prior written consent of the other parties and any such attempted
assignment without consent shall be void.
(g) This Agreement is not intended, and shall not be
construed, to confer any rights or remedies hereunder upon any party other
than the parties hereto and those parties designated as directors pursuant
to Section 2(f) or Section 6, which parties shall be entitled to enforce
their rights under such provisions to which they are entitled to benefits.
(h) Any term or provision of this Agreement that is invalid or
unenforceable in any jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such invalidity or unenforceability without
rendering invalid or unenforceable the remaining terms and provisions of
this Agreement, or any such terms in any other jurisdiction. If any
provision of this Agreement is so broad as to be unenforceable, such
provision shall be interpreted to be only so broad as is enforceable.
(i) The Company shall bear the reasonable expenses of each
party hereto in connection with the execution and delivery of this
Agreement and the consummation of the transactions contemplated hereby.
(j) Each party hereto agrees that, prior to the 1997 Annual
Meeting, the Board of Directors shall not take any action (i) with respect
to the grant of any stock options or other compensation to any director,
(ii) that would conflict with or frustrate any provision of this Agreement
or (iii) with respect to the approval of any merger or business
combination involving a change of control of the Company or any sale of
all or substantially all of the assets of the Company; provided, however
that nothing set forth in this Section 9(j) shall prohibit the Board of
Directors from considering prior to the 1997 Annual Meeting any
unsolicited bid involving any merger or sale of all or substantially all
of the assets of the Company that is not known to any of the parties as of
the date hereof.
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(k) Mr. Kalishman and Mr. Affholder on the one hand, and the
Company, on the other hand hereby agree to release one another from any
and all liabilities, claims and obligations of any kind arising directly
or indirectly from their respective activities in connection with the
pending proxy contest between the Company and the Dissident Group, the
preparation for the 1997 Annual Meeting and the solicitation of proxies
therefor, in each case prior to the date hereof.
(l) This Agreement may be executed in counterparts, each of
which shall be deemed an original, but all of which taken together shall
constitute one and the same instrument.
(m) On or prior to the date on which the Additional Nominee is
selected in accordance with Section 2(f) hereof, the Additional Nominee
shall execute a counterpart of this Agreement, to be held in escrow and
either (i) released therefrom upon approval of the Additional Nominee in
accordance with Section 2(f) hereof or (ii) canceled in the event such
approval is not promptly obtained.
(n) Each party hereto (other than the Company) is signing this
Agreement in his capacity as a Stockholder and not in his capacity as a
director or officer (except on behalf of the Company), it being understood
that this Agreement is not intended to limit or abridge the fiduciary
responsibility of the directors of the Company.
16
<PAGE>
IN WITNESS WHEREOF, this Agreement has been duly executed by the
parties hereto as of the date first above written.
INSITUFORM TECHNOLOGIES, INC.
By: /s/Anthony W. Hooper
----------------------------------------
Title: President and
Chief Executive Officer
/s/Russell B. Wight, Jr.
----------------------------------------
Russell B. Wight, Jr.
/s/Paul A. Biddelman
----------------------------------------
Paul A. Biddelman
/s/Sheldon Weinig
----------------------------------------
Sheldon Weinig
/s/Silas Spengler
----------------------------------------
Silas Spengler
/s/Anthony W. Hooper
----------------------------------------
Anthony W. Hooper
17
<PAGE>
XANADU INVESTMENTS, L.P.
By: The Jerome Kalishman Revocable Trust
By: /s/Jerome Kalishman
- -----------------------------------------------
Trustee
By: The Nancy F. Kalishman Revocable Trust
By: /s/Nancy F. Kalishman
- -----------------------------------------------
Trustee
/s/Jerome Kalishman
- -----------------------------------------------
Jerome Kalishman
/s/Nancy F. Kalishman
- -----------------------------------------------
Nancy F. Kalishman
The Jerome and Nancy Kalishman Family Fund
By: /s/Jerome Kalishman
- -----------------------------------------------
Jerome Kalishman, Trustee
/s/Robert W. Affholder
- -----------------------------------------------
Robert W. Affholder
/s/Stephen P. Cortinovis
- -----------------------------------------------
Stephen P. Cortinovis
18
