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AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON OCTOBER 3, 1997
REGISTRATION NO. 333-35891
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
AMENDMENT NO. 1
TO
FORM S-4
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
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ITEQ, INC.
(Exact name of registrant as specified in its charter)
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<S> <C> <C>
DELAWARE 3443 41-166701
(State or other jurisdiction (Primary Standard Industrial (I.R.S. Employer
of incorporated or organization) Classification Code Number) Identification No.)
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<TABLE>
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2727 ALLEN PARKWAY, SUITE 760 MARK E. JOHNSON
HOUSTON, TEXAS 77019 CHAIRMAN AND CHIEF EXECUTIVE OFFICER
(713) 285-2700 ITEQ, INC.
(Address including zip code, and telephone 2727 ALLEN PARKWAY, SUITE 760
number, including area code, of Registrant's HOUSTON, TEXAS 77019
principal executive offices) (713) 285-2700
(Name, address, including zip code, and
telephone number, including area code of
agent for service)
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With copies to:
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RICHARD L. WYNNE JOHN S. WATSON
PORTER & HEDGES, L.L.P. VINSON & ELKINS L.L.P.
700 LOUISIANA, 35TH FLOOR 1001 FANNIN
HOUSTON, TEXAS 77002-2764 2300 FIRST CITY TOWER
TELEPHONE: (713) 226-0600 HOUSTON, TEXAS 77002
FAX: (713) 226-0247 TELEPHONE: (713) 758-2222
FAX: (713) 615-5236
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APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: As soon as
practicable after this Registration Statement becomes effective.
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If the securities being registered on this form are being offered in
connection with the formation of a holding company and there is compliance with
General Instruction G, check the following box. [ ]
If this form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, check the following box and
list the Securities Act registration statement number of the earlier effective
registration statement for the same offering. [ ]
If this form is a post-effective amendment filed pursuant to Rule 462(d)
under the Securities Act, Check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ]
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CALCULATION OF REGISTRATION FEE
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PROPOSED MAXIMUM PROPOSED
TITLE OF EACH CLASS OF AMOUNT TO OFFERING PRICE MAXIMUM AGGREGATE AMOUNT OF
SECURITIES TO BE REGISTERED BE REGISTERED PER UNIT(1) OFFERING PRICE REGISTRATION FEE(2)
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Common Stock, $.001 par value per
share........................... 10,040,049 $10.375 $104,165,509 $10,732
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(1) Pursuant to Rule 457(f), the registration fee is calculated based on the
average of the high and low prices for the Registrant's common stock, as
reported by the Nasdaq National Market on July 31, 1997, or $10.375 per
share, multiplied by 10,040,049, the maximum number of shares of common
stock issuable upon consummation of the Merger described herein.
(2) Pursuant to Rule 457(b), the registration fee has been reduced by $20,834
representing the fee paid with respect to this transaction pursuant to
Section 14(g) of the Securities Exchange Act of 1934.
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THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF
THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(a),
MAY DETERMINE.
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SIGNATURES
Pursuant to the requirements of the Securities Act, the Registrant has duly
caused this Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Houston, State of Texas,
on October 3, 1997.
ITEQ, INC.
By: /s/ MARK E. JOHNSON
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Mark E. Johnson
Chairman of the Board and Chief
Executive Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints Mark E. Johnson and Lawrance W. McAfee, and each
of them, either of whom may act without joinder of the other, his true and
lawful attorneys-in-fact and agents, with full power of substitution and
resubstitution, for him and in his name, place and stead, in any and all
capacities, to sign any or all pre-and post-effective amendments to this
Registration Statement, and to file the same, with all exhibits thereto and
other documents in connection therewith, with the Securities and Exchange
Commission, granting unto such attorneys-in-fact and agents, and each of them,
full power and authority to do and perform each and every act and thing
requisite and necessary to be done in and about the premises, as fully to all
intents and purposes as he might or could do in person, hereby ratifying and
confirming all that said attorneys-in-fact and agents, and each of them, or the
substitute or substitutes of either of them, may lawfully do or cause to be done
by virtue hereof.
Pursuant to the requirements of the Securities Act, this Registration
Statement has been signed by the following persons in the indicated capacities
and on the 3rd day of October, 1997.
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SIGNATURE TITLE
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/s/ MARK E. JOHNSON Director, Chairman of the Board and Chief
- ----------------------------------------------------- Executive Officer (Principal Executive
Mark E. Johnson Officer)
/s/ LAWRANCE W. MCAFEE Director, Executive Vice President, Chief
- ----------------------------------------------------- Financial Officer and Secretary (Principal
Lawrance W. McAfee Financial Officer and Principal Accounting
Officer)
* Director
- -----------------------------------------------------
Pierre S. Melcher
* Director
- -----------------------------------------------------
Thomas N. Amonett
* Director
- -----------------------------------------------------
T. William Porter
* Director
- -----------------------------------------------------
James L. Rainey
* Director
- -----------------------------------------------------
James A. Read
*By: /s/ LAWRANCE W. MCAFEE
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Lawrance W. McAfee
Executive Vice President, Chief
Financial Officer and Secretary
as Attorney-in-Fact
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INDEX TO EXHIBITS
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EXHIBIT NO. DESCRIPTION
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2.1 -- Plan and Agreement of Merger dated as of June 30, 1997,
between the Registrant and Astrotech International
Corporation (included as Appendix A to the Joint Proxy
Statement/Prospectus).
3.1 -- Amended and Certificate of Incorporation of Registrant
(included as Appendix E to the Joint Proxy
Statement/Prospectus).
3.2 -- Amended and Restated Bylaws of the Registrant.
4.1 -- See Exhibits 3.1 and 3.2 for provisions of the
Certificate of Incorporation and Bylaws of the Registrant
defining the rights of holders of Common Stock.
4.2 -- Amended and Restated Credit Agreement dated November 18,
1996, among the Registrant, Bank of America National
Trust and Savings Association, as Agent, The First
National Bank of Boston, as Co-Agent and certain other
financial institutions. (Filed as an exhibit to Form 8-K
dated December 5, 1996 and incorporated herein by
reference).
4.3 -- Subordination Agreement among the Registrant and various
financial institutions (the "Senior Lenders"), including
Bank of America National Trust and Savings Association,
as Agent, and The First National Bank of Boston, as
Co-Agent. (Filed as an exhibit to Form 8-K dated December
5, 1996 and incorporated herein by reference).
4.4 -- Subordinated Note and Purchase Agreement dated November
18, 1996, among the Registrant, International Mezzanine
Capital, B.V. ("Mezzanine") and First Commerce
Corporation ("First Commence"). (Filed as an exhibit to
Form 8-K dated December 5, 1996 and incorporated herein
by reference).
4.5 -- Senior Subordinated Note due November 18, 2003, between
the Registrant and Mezzanine, dated November 18, 1996.
(Filed as an exhibit to Form 8-K dated December 5, 1996
and incorporated herein by reference).
4.6 -- Senior Subordinated Note due November 18, 2003, between
the Registrant and First Commerce, dated November 18,
1996. (Filed as an exhibit to Form 8-K dated December 5,
1996 and incorporated herein by reference).
4.7 -- Guaranty dated November 18, 1996, executed by the
Registrant in favor of Mezzanine and First Commerce.
(Filed as an exhibit to Form 8-K dated December 5, 1996
and incorporated herein by reference).
4.8 -- Warrant Agreement, dated November 18, 1996, between the
Registrant and Mezzanine. (Filed as an exhibit to Form
8-K dated December 5, 1996 and incorporated herein by
reference).
4.9 -- Warrant Agreement dated November 18, 1996, between the
Registrant and First Commerce. (Filed as an exhibit to
Form 8-K dated December 5, 1996 and incorporated herein
by reference).
4.10 -- Registration Right Agreement dated November 18, 1996,
among the Registrant, Mezzanine, and First Commerce.
(Filed as an exhibit to Form 8-K dated December, 1996 and
incorporated herein by reference).
4.11 -- Warrant Agreement, dated April 24, 1996, between the
Registrant and Sanders Morris Mundy, Inc. (Filed as an
exhibit to Form 10-Q for the quarter ended September 30,
1996 and incorporated herein by reference).
4.12 -- Warrant Agreement, dated December 1992, between
Registrant and Pennsylvania Merchant Group, Ltd. (Filed
as an exhibit to Form 10-K for fiscal year ending March
31, 1993 and incorporated herein by reference).
5.1 -- Opinion of Porter & Hedges, L.L.P. as to the legality of
the securities being registered.
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EXHIBIT NO. DESCRIPTION
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*8.1 -- Tax Opinion of Porter & Hedges, L.L.P.
10.1 -- Amended and Restated 1990 Stock Option Plan of the
Registrant (included as Appendix D to the Joint Proxy
Statement/Prospectus).
10.2 -- Agreement and Plan of Merger dated September 19, 1996,
among the Registrant, Air-Cure Acquisition, Inc. and
Ohmstede, Inc. (Filed as an exhibit to Form 10-Q for the
quarter ended September 30, 1996 and incorporated herein
by reference).
10.3 -- Agreement and Plan of Merger dated October 13, 1995,
among the Registrant, Air-Cure Acquisition Corporation,
Allied Industries, Inc., Mark E. Johnson and Pierre S.
Melcher. (Filed as an exhibit to Post-Effective Amendment
No. 1 to Form S-4 Registration Statement (No. 33-92308)
and incorporated herein by reference).
10.4 -- Agreement and Plan of Merger dated April 28, 1994, among
the Registrant, VIC Acquisition, Corporation, VIC
Environmental Systems, Inc. and Ronald E. Lewis. (Filed
as an exhibit to Post-Effective Amendment No. 1 to Form
S-1 Registration Statement (No. 33-69524) and
incorporated herein by reference).
10.5 -- Agreement and Plan of merger dated April 5, 1994, among
the Registrant, Air-Cure Acquisition Corporation, Amerex,
Inc., Amerex Industries, Inc. and certain other parties.
(Filed as an exhibit to Post-Effective Amendment No. 1 to
Form S-1 Registration Statement (No. 33-69524) and
incorporated herein by reference).
10.6 -- Employment Agreement dated March 1, 1996, between the
Registrant and Lawrance W. McAfee. (Filed as an exhibit
to Form 10-Q for the quarter ended September 30, 1996 and
incorporated herein by reference).
10.7 -- Employment Agreement dated December 29, 1995, between the
Registrant and Mark E. Johnson. (Filed as an exhibit to
Form 10-K for the year ended December 31, 1995 and
incorporated herein by reference).
10.8 -- Employment Agreement dated December 29, 1995, between the
Registrant and Pierre S. Melcher. (Filed as an exhibit to
Form 10-K for the year ended December 31, 1995 and
incorporated herein by reference).
10.9 -- Employment Agreement dated March 1, 1995, between the
Registrant and John P. Fitzpatrick. (Filed as an exhibit
to Form 10-K for the year ended December 31, 1994 and
incorporated herein by reference).
10.10 -- Employees Stock Purchase Plan, as amended dated December
15, 1994. (Filed as an exhibit to Form 10-K for year
ended December 31, 1994 and incorporated herein by
reference).
10.11 -- Director Stock Option Plan, as amended. (Plan filed as an
exhibit to Proxy Statement for Annual Meeting of
Stockholders held on June 29, 1996, and amendment filed
as an exhibit to Form 10-Q for the quarter ended June 30,
1996, both of which are incorporated herein by
reference).
10.12 -- Employment Agreement dated May 15, 1997, between the
Registrant and John Camardella. (Filed as an exhibit to
Form 10-Q for the quarter ended June 30, 1997 and
incorporated herein by reference).
10.13 -- Lease Agreement dated May 25, 1994, between Halligan and
Labbe Enterprises, L.L.C. and Amerex Industries, Inc.
(Filed as an exhibit to Form 10-K for the year ended
December 31, 1994 and incorporated herein by reference).
10.14 -- License and Technical Assistance Agreement dated August
28, 1991, between Interel Environmental Technologies,
Inc. and Heinrich Luhr Staubtechnik GmbH & Co. (Filed as
an exhibit to Form S-1 (No. 33-44205) and incorporated
herein by reference).
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EXHIBIT NO. DESCRIPTION
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10.15 -- Acquisition Agreement dated as of August 24, 1997,
between the Registrant and the owners of Exell. (Filed as
an exhibit to Form S-2 (No. 33-23245) dated May 20, 1996
and incorporated herein by reference).
10.16 -- First Amendment and Second Amendment to Acquisition
Agreement dated as of April 24, 1997, between Registrant
and the owners of Exell. (Filed as an exhibit to Form
10-Q for the quarter ended June 30, 1997 and incorporated
herein by reference).
23.1 -- Consent of Arthur Andersen LLP.
23.2 -- Consent of Melton & Melton L.L.P.
23.3 -- Consent of KPMG Peat Marwick LLP.
23.4 -- Consent of Coopers & Lybrand L.L.P.
23.5 -- Consent of Ernst & Young LLP.
23.6 -- Consent of Porter & Hedges, L.L.P. (contained in opinion
filed as Exhibit 5.1).
*23.7 -- Consent of Simmons & Company International with respect
to its fairness opinion.
*23.8 -- Consent of Rauscher Pierce Refsnes, Inc. with respect to
its fairness opinion.
*23.9 -- Consent of S. Kent Rockwell, a person named in the
Registration Statement as about to become a director who
has not signed the Registration Statement pursuant to
Rule 438.
*23.10 -- Consent of Nathan M. Avery, a person named in the
Registration Statement as about to become a director who
has not signed the Registration Statement pursuant to
Rule 438.
24.1 -- Power of Attorney (included on signature page)
99.1 -- Form of Proxy of ITEQ, Inc. (relating to the ITEQ Meeting
described in the Joint Proxy Statement/Prospectus forming
a part of this Registration Statement).
99.2 -- Form of Proxy of Astrotech International Corporation
(relating to the Astrotech Meeting described in the Joint
Proxy Statement/Prospectus forming a part of this
Registration Statement).
</TABLE>
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* Filed herewith.
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Exhibit 8.1
October 2, 1997
ITEQ, Inc.
2727 Allen Parkway, Suite 760
Houston, Texas 77019
Ladies and Gentlemen:
We have acted as counsel to ITEQ, Inc., a Delaware corporation
("ITEQ"), in connection with the transactions contemplated by the Plan and
Agreement of Merger dated effective June 30, 1997 (the "Merger Agreement"), by
and among ITEQ and Astrotech International Corporation, a Delaware corporation
("Astrotech"). We have been requested by ITEQ to render our opinion with
respect to the material federal income tax consequences of the proposed merger
(the "Merger") of Astrotech with and into ITEQ in accordance with the Merger
Agreement, with ITEQ to be the surviving corporation. As a result of the
Merger, all of the outstanding shares of Astrotech Common Stock will be
converted into shares of ITEQ Common Stock, except for cash paid to Astrotech
stockholders in lieu of receipt of fractional shares of ITEQ Common Stock. All
capitalized terms used herein and not otherwise defined shall have the meaning
set forth in the Merger Agreement.
We have examined (i) executed copies of the Merger Agreement, (ii) the
Registration Statement on Form S-4 filed by ITEQ (Registration No. 333-35891)
which contains the Joint Proxy Statement (the "Joint Proxy
Statement/Prospectus"), and (iii) have examined or relied upon originals or
copies, certified or otherwise identified to our satisfaction, of such
corporate records, documents, certificates and other instruments, as we have
deemed necessary or appropriate for the purpose of rendering the opinions
expressed below. As to certain questions of fact material to the opinions
rendered herein, we have relied upon certificates, warranties and covenants
made to us by the management of ITEQ and Astrotech, as well as certificates of
continuity of interest from certain stockholders of Astrotech (each of which we
have relied upon as true in this opinion without our having performed any
independent verification as to their accuracy). We have assumed that the
Merger qualifies as a statutory merger under applicable state law. We have
further assumed that all signatures on all documents we have examined are
genuine, that all documents submitted to us as originals are authentic and that
all copies of documents submitted to us are complete and conform to the
originals thereof.
<PAGE> 2
ITEQ, Inc.
October 2, 1997
Page 2
Based on the foregoing, and assuming further that the Merger is
carried out in the manner set forth in the Merger Agreement and the
Registration Statement, we are of the opinion that the material federal income
tax consequences resulting from the consummation of the Merger are as described
in the discussion titled "Certain Federal Income Tax Consequences" as set forth
in the Joint Proxy Statement/Prospectus.
Our opinion has been requested by ITEQ on behalf of (i) itself, (ii)
Astrotech, (iii) the Astrotech stockholders receiving ITEQ Common Stock in
exchange for Astrotech Common Stock pursuant to the Merger, and (iv) the
holders of options to purchase Astrotech Common Stock that are receiving
options to purchase ITEQ Common Stock pursuant to the Merger. No other
individual or entity, whether or not a party to the Merger Agreement, may rely
upon this opinion without the express, prior written consent of both ITEQ and
the undersigned.
Our opinion is limited to the matters discussed herein, and is further
limited by the discussion of Certain Federal Income Tax Consequences in the
Joint Proxy Statement/Prospectus. We note that the opinion of counsel has no
binding effect or official status of any kind with the Internal Revenue Service
or the courts. We believe that subject to the conditions and assumptions noted
above, it is more likely than not that the conclusions set forth herein would
be sustained by the courts if contested by the Internal Revenue Service.
However, due to uncertainties inherent in the application of federal tax laws
to the Merger, there can be no assurance of such success. If there were
ultimately an adverse determination as to any of the tax issues discussed
herein or in the Joint Proxy Statement/Prospectus, ITEQ, Astrotech and the
Astrotech stockholders could sustain different tax consequences than are
described herein or in the Joint Proxy Statement/Prospectus.
Our opinion is based upon existing laws, regulations, administrative
authorities and judicial decisions, all of which could change with retroactive
effect. We have no duty, and do not intend, to update or modify this opinion
for changes in the applicable law, regulations or interpretations occurring
after the date hereof. Similarly, any change in the facts and assumptions
stated above, upon which this opinion is based, could modify our conclusions.
We consent to the use of this opinion as an exhibit to the
Registration Statement on Form S-4 filed by ITEQ and Astrotech and to the
reference to us under the caption "Certain Federal Income Tax Consequences" in
the Joint Proxy Statement/Prospectus forming a part of the Registration
Statement.
Very truly yours,
/s/ PORTER & HEDGES, L.L.P.
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EXHIBIT 23.7
CONSENT OF INVESTMENT BANKER
We consent to the inclusion in this Registration Statement on Form S-4
of the form of our opinion attached as Appendix B thereto regarding the
fairness, from a financial point of view, of the consideration to be paid in
connection with a certain transaction. We also consent to the references to
our firm contained in such registration statement including, but not limited
to, "The Merger -- Opinion of Simmons."
/s/ SIMMONS & COMPANY INTERNATIONAL
Houston, Texas
September 30, 1997
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EXHIBIT 23.8
CONSENT OF INVESTMENT BANKER
We consent to the inclusion in this Registration Statement on Form S-4
of the form of our opinion attached as Appendix C thereto regarding the
fairness, from a financial point of view, of the consideration to be paid in
connection with a certain transaction. We also consent to the references to
our firm contained in such registration statement including, but not limited
to, "The Merger -- Opinion of RPR."
By: /s/ G. CLYDE BUCK
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G. Clyde Buck - Managing Director
RAUSCHER PIERCE REFSNES, INC.
Houston, Texas
September 29, 1997
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EXHIBIT 23.9
CONSENT
The undersigned consents to being named in this Registration Statement
on Form S-4 as a person who is about to become a director of the Registrant.
September 27, 1997
/s/ S. KENT ROCKWELL
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S. Kent Rockwell
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EXHIBIT 23.10
CONSENT
The undersigned consents to being named in this Registration Statement
on Form S-4 as a person who is about to become a director of the Registrant.
September 30, 1997
/s/ NATHAN M. AVERY
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Nathan M. Avery
