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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
SCHEDULE 13D
Under the Securities Exchange Act of 1934
(AMENDMENT NO. 1)
INSITUFORM TECHNOLOGIES, INC.
(Name of Issuer)
CLASS A COMMON STOCK, 457667 10 3
$.01 PAR VALUE
(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
(Name, address and telephone number of person authorized to receive notices and
communications)
JUNE 11, 1997
(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))
(Page 1 of 16 Pages)
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CUSIP No. 457667 10 3 13D Page 2
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1 NAME OF REPORTING PERSON: JEROME KALISHMAN
S.S. OR I.R.S. IDENTIFICATION NO.
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: ROBERT W. AFFHOLDER
S.S. OR I.R.S. IDENTIFICATION NO.
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: NANCY F. KALISHMAN
S.S. OR I.R.S. IDENTIFICATION NO.
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
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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: XANADU INVESTMENTS, L.P.
S.S. OR I.R.S. IDENTIFICATION NO.
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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Item 1. Security and Issuer.
The class of equity securities to which this statement relates is the
class A common stock, $.01 par value (the "Common Stock"), of Insituform
Technologies, Inc., a Delaware corporation (the "Company"). The principal
executive offices of the Company are located at 1770 Kirby Parkway, Suite 300,
Memphis, Tennessee
38138.
Item 2. Identity and Background.
(a) This statement is being filed on behalf of Jerome Kalishman
("Kalishman"), Robert W. Affholder ("Affholder"), Nancy F. Kalishman and Xanadu
Investments, L.P. ("Xanadu"). The foregoing persons are hereinafter sometimes
collectively referred to as the "Reporting Persons." Information as to each
Reporting Person set forth in this Schedule 13D has been provided by such
Reporting Person.
Kalishman and Affholder have agreed to form a committee to participate
in an anticipated proxy contest (the "Proxy Contest") for the election of a
slate of nominees to the Board of Directors of the Company at the Company's 1997
Annual Meeting of Stockholders (the "1997 Annual Meeting"). See Item 4.
Kalishman and Affholder are making this joint filing because they may, by reason
of such agreement, be deemed to constitute a "group" within the meaning of
Section 13(d)(3) of the Securities Exchange Act of 1934, as amended (the
"Exchange Act"). Nancy F. Kalishman and Xanadu are joining in this filing
because they may be deemed, by virtue of their shared voting and dispositive
power with respect to shares of Common Stock beneficially owned by Kalishman, to
be beneficial owners of such shares of Common Stock. Kalishman and Nancy F.
Kalishman are spouses.
The following sets forth as to each of the individual Reporting Persons
his or her residence or business address and his or her present principal
occupation or employment and the name, principal business and address of any
corporations or other organizations in which such employment is conducted:
Kalishman's principal occupation is Chairman of the Board of the
Company. His business address is c/o Insituform Technologies, Inc., 17988 Edison
Avenue, Chesterfield, Missouri 63005-3700.
Affholder's principal occupation is Senior Vice President of the
Company. His business address is c/o Insituform
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Technologies, Inc., 17988 Edison Avenue, Chesterfield, Missouri 63005-3700.
Nancy F. Kalishman is principally engaged in community service for
various organizations. Her business address is c/o Insituform Technologies,
Inc., 17988 Edison Avenue, Chesterfield, Missouri 63005-3700.
Xanadu is a Missouri limited partnership whose general partners are the
Jerome Kalishman Revocable Trust (as to which Kalishman acts as trustee) and The
Nancy F. Kalishman Revocable Trust (as to which Nancy F. Kalishman acts as
trustee). Xanadu was organized to acquire, own, finance, develop, improve,
construct, lease, operate, manage, mortgage, sell, market and otherwise invest
in and deal with real and personal property as investment, and to conduct such
other activities related or incidental thereto as may be convenient, necessary
or desirable to promote the business of Xanadu. Its principal business and
offices are located at 17988 Edison Avenue, Chesterfield, Missouri 63005-3700.
(b)-(c) During the last five years, none of the Reporting Persons has
been convicted in a criminal proceeding (excluding traffic violations and
similar misdemeanors) or was a party to a civil proceeding of a judicial or
administrative body of competent jurisdiction, and as a result of such
proceeding was or is subject to a judgment, decree or a final order enjoining
future violations of, or prohibiting or mandating activities subject to, federal
or state securities laws or finding any violations with respect to such laws.
(d) Each of the natural persons named in this Item 2 is a
citizen of the United States of America.
Item 3. Source and Amount of Funds or Other Consideration.
See Item 4.
Item 4. Purpose of Transaction.
The Reporting Persons acquired their shares of Common Stock as a result
of the consummation in October 1995 of the merger (the "IMA Merger") of a
wholly-owned subsidiary of the Company with and into Insituform Mid-America,
Inc. ("IMA"). Pursuant to the IMA Merger, the shares of IMA stock held by the
Reporting Persons were converted into the right to receive shares of Common
Stock. Pursuant to the agreement (the "IMA Merger Agreement") entered into by
the Company and IMA in connection with the IMA
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Merger, Kalishman and Affholder were elected and continue to serve as directors
of the Company, and the Company has agreed to nominate and recommend them for
reelection as directors until December 9, 1998. Affholder's current term as a
director of the Company expires at the 1997 Annual Meeting and Kalishman's term
expires at the 1998 annual meeting of stockholders.
Kalishman and Affholder believe that the Company's current Board of
Directors is not effectively and adequately representing the interests of the
Company and its stockholders. In the view of Kalishman and Affholder, the
proceedings and effectiveness of the Board have been substantially impaired by
allegiances that exist among groups of Board members that were directors prior
to the IMA Merger and conflicts of interest between certain directors and the
Company. Kalishman and Affholder believe that the election of independent highly
qualified individuals as directors of the Company would greatly improve the
Board, provide to current management the support necessary to implement plans to
increase the profitability of the Company and enhance the value of the Company
and its stock.
Kalishman and Affholder have held a number of discussions with certain
of the other directors of the Company regarding their concerns and ideas to
improve the Board and the role it plays in the management of the Company. These
discussions have not been fruitful and the other directors have refused to
consider any changes in the composition of the Board. Accordingly, Kalishman and
Affholder have agreed to form a committee (the "Committee") for the purpose of
electing a slate of nominees to the Company's Board of Directors at the 1997
Annual Meeting in opposition to the nominees of the Company's Board of Directors
(other than Affholder). Kalishman and Affholder have held discussions with
several highly qualified individuals to serve as members of the Committee's
slate. The Committee intends to finalize the slate in the near future.
Each of the members of the Committee may solicit proxies on behalf of
the Committee's nominees by making telephone calls, conducting personal
interviews or otherwise. D.F. King & Co., Inc. ("King") also has been retained
on behalf of the Committee for consultation and advice on matters reasonably
related to proxy solicitation issues. The Committee also intends to engage King
to solicit proxies in connection with the Proxy Contest. In furtherance of the
foregoing, Kalishman has caused Xanadu to make a demand under state law for
copies of a list of stockholders and related records.
On November 18, 1996, Kalishman was appointed Chairman of the Board of
the Company. At that time Kalishman and the Company modified the arrangements,
which became effective upon consummation of the IMA Merger and pursuant to which
Kalishman was engaged as Vice Chairman of the Board, to provide that the
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appointment of Kalishman as Chairman of the Board will, during the period
thereof, satisfy the respective obligations of the Company to engage Kalishman,
and of Kalishman to serve, as Vice Chairman. As a result of the consummation of
the IMA Merger and for a term of two years thereafter, Kalishman has also been
engaged as a consultant to the Company.
Pursuant to an Employment Agreement entered into pursuant to the IMA
Merger, Affholder serves as Senior Executive Vice President of the Company.
Affholder's Employment Agreement is for a term of three years after consummation
of the IMA Merger.
Except as set forth above, the Reporting Persons have no oral or
written agreements, understandings or arrangements for the purpose of acquiring,
holding, voting or disposing of any securities of the Company or otherwise with
respect to the Company.
Subject to availability at prices deemed favorable, the Reporting
Persons may acquire additional shares of Common Stock from time to time in the
open market, in privately negotiated transactions or otherwise. The Reporting
Persons also may dispose of shares of Common Stock from time to time in the open
market, in privately negotiated transactions or otherwise.
Although the foregoing represents the range of activities presently
contemplated by the Reporting Persons with respect to the Company and the Common
Stock, it should be noted that the possible activities of the Reporting Persons
are subject to change at any time. Except as set forth above or elsewhere in
this Schedule 13D, the Reporting Persons have no present plans or intentions
that relate to or that would result in any of the transactions described in
clauses (a) through (j) of Item 4 of Schedule 13D.
Item 5. Interest in Securities of the Issuer.
(a) As of June 11, 1997, the members of the Group beneficially owned,
for purposes of Rule 13d-3 under the Exchange Act, in the aggregate 4,405,706
shares of Common Stock, constituting approximately 16.4% of the issued and
outstanding Common Stock. Such shares represent (i) 146,159 shares (the "Senior
Shares") held by Kalishman and Nancy F. Kalishman, as tenants by the entirety;
(b) 2,869,274 shares (the "Partnership Shares") held by Xanadu; (c) 1,307,858
shares (the "Affholder Shares") held by Affholder; and (d) 82,415 shares (the
"Fund Shares") held by the Jerome and Nancy F. Kalishman Family Fund.
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The four adult children of Kalishman and Nancy F. Kalishman (and a
trust of which such children serve as trustees) beneficially own in the
aggregate 1,324,850 shares of Common Stock, representing approximately 4.9% of
the outstanding shares. Kalishman and Nancy F. Kalishman have no arrangements,
understandings or agreements with any of their children with respect to the
voting, holding or disposing of shares of Common Stock.
As of June 11, 1997:
Kalishman beneficially owned 3,097,848 shares of Common Stock,
constituting approximately 11.5% of the issued and outstanding shares of Common
Stock. Such shares represent the Senior Shares, the Partnership Shares and the
Fund Shares.
Nancy F. Kalishman beneficially owned 3,015,433 shares of
Common Stock, constituting approximately 11.2% of the issued and outstanding
shares of Common Stock. Such shares represent the Senior Shares and the
Partnership Shares.
Xanadu beneficially owned 2,869,274 shares of Common Stock,
constituting approximately 10.7% of the issued and outstanding shares of Common
Stock.
Affholder beneficially owned 1,307,858 shares of Common Stock,
constituting approximately 4.9% of the issued and outstanding shares of Common
Stock.
Of the shares stated above as beneficially owned by Kalishman, the Fund
Shares are held by him with sole power to vote or to direct the vote thereof,
and with sole power to dispose or to direct the disposition thereof; the Senior
Shares are held by him with shared power to vote or to direct the vote thereof,
and with shared power to dispose or to direct the disposition thereof, with
Nancy F. Kalishman; and the Partnership Shares are held by him with shared power
to vote or to direct the vote thereof, and with shared power to dispose or to
direct the disposition thereof, with Nancy F. Kalishman and Xanadu.
Of the shares stated above as beneficially owned by Nancy F. Kalishman,
the Senior Shares are held by her with shared power to vote or to direct the
vote thereof, and with shared power to dispose or to direct the disposition
thereof, with Kalishman; and the Partnership Shares are held by her with shared
power to vote or to direct the vote thereof, and with shared power to dispose or
to direct the disposition thereof, with Kalishman and Xanadu.
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All of the shares stated above as beneficially owned by Xanadu are held
by Xanadu with shared power to vote or to direct the vote thereof, and with
shared power to dispose or to direct the disposition thereof, with Kalishman and
Nancy F. Kalishman.
Of the shares beneficially owned by Affholder, 1,304,858 shares are
held by Affholder with sole power to vote or direct the vote of and with sole
power to dispose of or direct disposition thereof, and 3,000 shares are held by
him as Trustee of the Robert W. and Pamela Rae Affholder Grandchildren's Trust,
with shared power to vote or to direct the vote of, and with shared power to
dispose or to direct the disposition thereof, with Brett Affholder, Affholder's
son.
(c) None.
(d) Not applicable.
(e) Not applicable.
Item 6. Contracts, Arrangements, Undertakings or Relationships
with Respect to Securities of the Issuer.
In connection with the IMA Merger, Xanadu and Affholder entered into an
agreement with the Company and pursuant thereto received certain registration
rights covering the shares of Common Stock held by them and their affiliates.
Such agreement terminates in December 1998. Pursuant to such agreement, Xanadu
and Affholder may demand registration under the Securities Act of 1933 on one
occasion (unless the Company is entitled to use a registration statement on Form
S-3, in which case Xanadu is entitled to three demand registrations) of no less
than 500,000 shares of Common Stock. In addition, Xanadu and Affholder are
entitled to incidental registration rights during the term of such agreement.
Except as stated in response to this Item 6 and Item 4 above, none of
the Reporting Persons is a party to any contract, arrangement, understanding or
relationship (legal or otherwise) with any person with respect to any securities
of the Company, including but not limited to, any transfer or voting of any such
securities, finder's fees, joint ventures, loans or option arrangements, puts or
calls, guarantees or profits, divisions of profit or loss, or the giving or
withholding of proxies.
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Item 7. Material to be Filed as Exhibits.
1. Joint Filing Agreement, dated June 11, 1997,
among the Reporting Persons.
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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: June 11, 1997
/s/ Jerome Kalishman
--------------------------
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: June 11, 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: June 11, 1997
/s/ Nancy F. Kalishman
---------------------------
Nancy F. Kalishman
15
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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: June 11, 1997 Xanadu Investments, L.P.
By: /s/ Jerome Kalishman
-------------------------
Jerome Kalishman
16
NYFS10...:\85\55385\0003\139\SCH6057K.450
<PAGE>
EXHIBIT INDEX
Exhibit No. Description
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1 Agreement, dated June 11, 1997, among Jerome Kalishman,
Robert W. Affholder, Nancy F. Kalishman and Xanadu
Investments, L.P., with respect to the amendment to
Schedule 13D.
Exhibit 1
AGREEMENT
This will confirm the agreement by and among all the
undersigned that the amendment to Schedule 13D filed on or about this date with
respect to the beneficial ownership of the undersigned of shares of the common
stock of the Company is being filed, and all further amendments thereto will be
filed, on behalf of each of the persons and entities named below. This Agreement
may be executed in two or more counterparts, each of which shall be deemed an
original, but all of which together shall constitute one and the same
instrument.
Dated: June 11, 1997
/s/ Jerome Kalishman
------------------------------
Jerome Kalishman
/s/ Robert W. Affholder
------------------------------
Robert W. Affholder
/s/ Nancy F. Kalishman
------------------------------
Nancy F. Kalishman
Xanadu Investments, L.P.
By: /s/ Jerome Kalishman
------------------------
Jerome Kalishman
