<PAGE> 1
As filed with the Securities and Exchange Commission on April 15, 1998
REGISTRATION NO. 333-
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
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ITEQ, INC.
(FORMERLY KNOWN AS AIR-CURE ENVIRONMENTAL, INC.)
(Exact name of registrant as specified in its charter)
DELAWARE 41-1667001
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification Number)
2727 ALLEN PARKWAY, SUITE 760
HOUSTON, TEXAS 77019
(713) 285-2700
(Address, including zip code, and telephone number, including area code, of
registrant's principal executive offices)
ITEQ, INC. 1990 STOCK OPTION PLAN
ASTROTECH INTERNATIONAL CORPORATION 1984 STOCK OPTION PLAN
ASTROTECH INTERNATIONAL CORPORATION 1989 STOCK INCENTIVE PLAN
ASTROTECH INTERNATIONAL CORPORATION 1994 STOCK OPTION PLAN FOR EMPLOYEES
OF BROWN-MINNEAPOLIS TANK & FABRICATING CO.
ASTROTECH INTERNATIONAL CORPORATION 1995 NONEMPLOYEE DIRECTORS
STOCK OPTION PLAN
(Full Title of Plans)
LAWRANCE W. MCAFEE
ITEQ, INC.
2727 ALLEN PARKWAY, SUITE 760
HOUSTON, TEXAS 77019
(713) 285-2700
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
With copies to:
T. WILLIAM PORTER
PORTER & HEDGES, L.L.P.
700 LOUISIANA, SUITE 3500
HOUSTON, TEXAS 77002
(713) 226-0600
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CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
============================================================================================================================
PROPOSED
AMOUNT TO MAXIMUM PROPOSED AMOUNT OF
TITLE OF BE OFFERING MAXIMUM AGGREGATE REGISTRATION
SECURITIES TO BE REGISTERED REGISTERED(1)(2) PRICE PER SHARE(3) OFFERING PRICE(3) FEE
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<S> <C> <C> <C> <C> <C>
Common Stock, par value $.001 per share 982,824 $14.09375 $13,851,676 $4,087
============================================================================================================================
</TABLE>
(1) Pursuant to Rule 416(a), also registered hereunder is an indeterminate
number of shares of Common Stock issuable as a result of the
anti-dilution provisions of the ITEQ, Inc. 1990 Stock Option Plan (the
"ITEQ Plan"), the Astrotech International Corporation ("AIX") 1984
Stock Option Plan, the AIX 1989 Stock Incentive Plan, the AIX 1994
Stock Option Plan for Employees of Brown-Minneapolis Tank & Fabricating
Co., and the AIX 1995 Stock Option Plan (said AIX plans collectively,
the "AIX Plans").
<PAGE> 2
(2) Pursuant to Registration Statement No. 33-68518 (the "Initial
Registration Statement"), ITEQ, Inc. (the "Company") registered
2,500,000 shares of Common Stock for issuance under the ITEQ Plan.
Pursuant to the merger of AIX with and into the Company on October 28,
1997 (the "Merger"), the Company assumed the AIX Plans. On October 28,
1997, the Company's stockholders approved an increase in the number of
shares authorized for issuance under the ITEQ Plan to 3,000,000. As of
the date of the Merger, 482,824 shares of Common Stock were issuable
pursuant to options outstanding under the AIX Plans, and no additional
options could be issued under the AIX Plans except pursuant to the
anti-dilution provisions thereof. This Registration Statement
constitutes a post-effective amendment of the Initial Registration
Statement and an original registration statement with respect to the
additional 500,000 shares authorized for issuance under the ITEQ Plan
and the 482,824 shares of Common Stock issuable on exercise of options
outstanding under the AIX Plans on the date of the Merger.
(3) Pursuant to Rule 457(c), the registration fee is calculated on the
basis of the average of the high and low price per share of Common
Stock, as quoted on the NASDAQ NMS on April 13, 1998. Pursuant to Rule
457(h), the registration fee is calculated with respect to the maximum
number of the registrant's securities issuable under the Plans.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The Company hereby incorporates by reference into this registration
statement (this "Registration Statement") (i) the contents of its annual report
on Form 10-K for the annual period ended December 31, 1997, as filed with the
Securities and Exchange Commission (the "Commission") on March 24, 1998, as
amended by its report on Form 10-K/A-1, as filed with the Commission on April 2,
1998, (ii) the description of the Company's common stock, par value $.001 per
share ("Common Stock"), contained in the Registration Statement on Form S-4 as
filed with the Commission on September 18, 1997, as amended by Form S-4/A filed
with the Commission on October 3, 1997, (iii) the contents of its report on Form
8-K filed January 20, 1998, and (iv) the contents of its report on Form 8-K
filed March 9, 1998.
All documents filed by the Company with the Commission pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934 (the
"Exchange Act') subsequent to the filing date of this Registration Statement and
prior to the filing of a post-effective amendment to this Registration Statement
which indicates that all securities offered have been sold or which deregisters
all securities then remaining unsold shall be deemed to be incorporated by
reference in this Registration Statement and to be a part hereof from the date
of filing of such documents. The Company will provide, without charge, each
participant in the Company's Plans, on written or oral request of such person, a
copy (without exhibits, unless such exhibits are specifically incorporated by
reference) of any or all of the documents incorporated by reference pursuant to
this Item 3.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
In connection with the filing of this Registration Statement, Porter &
Hedges, L.L.P. has given an opinion on the validity of the securities being
registered hereby. T. William Porter, a partner with Porter & Hedges, L.L.P., is
a director of the Company.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Amended and Restated Certificate of Incorporation of the Company
(the "Certificate") contains a provision that eliminates, to the extent
currently allowed under Section 102(b)(7) of the Delaware General Corporation
Law ("DGCL"), the personal monetary liability of a director to the Company and
its stockholders for breach of his fiduciary duty of care as a director. If a
director were to breach the duty of care in performing his duties as a director,
neither the Company nor its stockholders could recover monetary damages from the
director, and the only course of action available to the Company's stockholders
would be equitable remedies, such as an action to enjoin or rescind a
transaction involving a breach of the fiduciary duty of care. To the extent
certain claims against directors are limited to equitable remedies, this
provision of the Certificate may reduce the likelihood of derivative litigation
and may discourage stockholders or management from initiating litigation against
directors for breach of their duty of care. Additionally, equitable remedies may
not be effective in many situations. If a stockholder's only remedy is to enjoin
the completion of a transaction or an event authorized by the board of
directors, the remedy would be ineffective if the stockholder does not become
aware of a transaction or event until after it has been completed. In such a
situation, such stockholder would have no effective remedy against the
directors. Liability for monetary damages remains for (i) any breach of the duty
of loyalty to the Company or its stockholders, (ii) acts or omissions not in
good faith or which involve intentional
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<PAGE> 4
misconduct or a knowing violation of law, (iii) payment of an improper dividend
or improper repurchase or redemption of the Company's stock under Section 174 of
the DGCL or (iv) any transaction from which the director derived an improper
personal benefit. The Certificate further provides that if Section 102(b)(7) of
the DGCL is amended or supplemented to allow further elimination or limitation
of the liability of directors, then the liability of the Company's directors
shall be limited to the fullest extent permitted by the amended DGCL.
The DGCL permits a corporation to indemnify certain persons, including
officers and directors, who are (or are threatened to be made) parties to any
threatened, pending or completed action, suit or proceeding, whether civil,
criminal, administrative or investigative (other than an action by or in the
right of the corporation), by reason of their being officers or directors of the
corporation. The indemnity may include expenses (including attorneys' fees),
judgments, fines and amounts paid in settlement actually and reasonably incurred
by an indemnified officer or director, provided he acted in good faith and in a
manner he reasonably believed to be in, or not opposed to, the corporation's
best interests and, in the case of criminal proceedings, provided he had no
reasonable cause to believe that his conduct was unlawful. The Certificate
provides indemnification for the Company's directors and officers to the fullest
extent allowed pursuant to the foregoing provisions of the DGCL.
The DGCL further permits a corporation to indemnify certain persons,
including officers and directors, who are (or are threatened to be made) parties
to any threatened, pending or completed action or suit by or in the right of the
corporation to procure a judgment in its favor by reason of their being officers
or directors of the corporation. The indemnity may include expenses (including
attorneys' fees) actually and reasonably incurred by the indemnified officer or
director, provided he acted in good faith and in a manner he reasonably believed
to be in, or not opposed to, the corporation's best interests. However, no such
person will be indemnified as to matters for which he is found to be liable for
negligence or misconduct in the performance of his duty to the corporation
unless, and only to the extent that, indemnification is ordered by a court. The
Certificate provides indemnification of the Company's directors and officers to
the fullest extent allowed pursuant to the foregoing provisions of the DGCL.
The Certificate also requires that the Company advance expenses
incurred by an officer or director in defending an action or suit in advance of
final disposition thereof to the fullest extent allowed by the DGCL or other
applicable law. The DGCL currently allows advancement of such expenses provided
that the officer or director undertakes to repay such amount if it is ultimately
determined that indemnification was not authorized under the DGCL.
Delaware corporations also are authorized to obtain insurance to
protect officers and directors from certain liabilities, including liabilities
against which the corporation cannot indemnify its directors and officers. The
Certificate provides that ITEQ has the authority to purchase such insurance. The
foregoing indemnification provisions are not exclusive of any other right to
indemnity to which a director or officer may be entitled under any bylaw,
agreement, vote of stockholders or disinterested directors or otherwise.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
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ITEM 8. EXHIBITS.
4.1 The Company's 1990 Incentive Stock Plan (Incorporated by
reference to the Company's Registration Statement on Form S-4,
filed September 18, 1997, File No. 333-35891).
4.2 AIX's 1984 Stock Option Plan (Incorporated by reference to
AIX's Registration Statement on Form S-8, filed February 14,
1986, File No. 33-3360).
4.3 AIX's 1989 Stock Incentive Plan (Incorporated by reference to
AIX's Registration Statement on Form S-8, filed July 6, 1989,
File No. 33-29754).
4.4 AIX'S 1994 Stock Option Plan for Employees of Brown-Minneapolis
Tank & Fabricating Co. (Incorporated by reference to AIX's
Registration Statement on Form S-8, filed on October 12, 1994,
File No. 33-85106).
4.5 AIX's 1995 Nonemployee Directors Stock Option Plan
(Incorporated by reference to AIX's Registration Statement on
Form S-8, filed November 14, 1995, File No. 33-99290).
*4.6 Amendment to AIX's 1984 Stock Option Plan.
*4.7 Amendment to AIX's 1989 Stock Incentive Plan.
*4.8 Amendment to AIX's 1994 Stock Option Plan for Employees of
Brown-Minneapolis Tank & Fabricating Co.
*4.9 Amendment to AIX's 1995 Nonemployee Directors Stock Option Plan.
*5.1 Opinion of Porter & Hedges, L.L.P.
*23.1 Consent of Arthur Andersen LLP
*23.2 Consent of Coopers & Lybrand L.L.P.
*23.3 Consent of Porter & Hedges, L.L.P. (included in Exhibit 5.1)
*24.1 Power of Attorney (included on the signature page hereto)
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* Filed herewith.
ITEM 9. UNDERTAKINGS.
A. Undertaking to Update
The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or
sales are being made, a post-effective amendment to this
registration statement:
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<PAGE> 6
(i) To include any prospectus required by
section 10(a)(3) of the Securities Act of 1933, as
amended (the "Securities Act");
(ii) To reflect in the prospectus any facts
or events arising after the effective date of the
registration statement (or the most recent
post-effective amendment thereof) which, individually
or in the aggregate, represent a fundamental change
in the information set forth in this Registration
Statement. Notwithstanding the foregoing, any
increase or decrease in volume of securities offered
(if the total dollar value of securities offered
would not exceed that which was registered) and any
deviation from the low or high and of the estimated
maximum offering range may be reflected in the form
of a prospectus filed with the Commission pursuant to
Rule 424(b) if, in the aggregate, the changes in
volume and price represent no more than a 20 percent
change in the maximum aggregate offering price set
forth in the "Calculation of Registration Fee" table
in the effective registration statement.
(iii) To include any material information
with respect to the plan of distribution not
previously disclosed in the registration statement or
any material change to such information in this
Registration Statement;
Provided, however, that paragraphs (A)(1)(i) and (A)(1)(ii) of
this section do not apply if the information required to be
included in a post-effective amendment by those paragraphs is
contained in periodic reports filed by the registrant pursuant
to Section 13 or Section 15(d) of the Exchange Act, that are
incorporated by reference in this Registration Statement.
(2) That, for the purpose of determining any
liability under the Securities Act, each such post-effective
amendment shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering
of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
(3) To remove from registration by means of a
post-effective amendment any of the securities being
registered which remain unsold at the termination of the
offering.
B. Undertaking With Respect to Documents Incorporated by
Reference
The undersigned registrant hereby undertakes that, for
purposes of determining any liability under the Securities
Act, each filing of the registrant's annual report pursuant to
Section 13(a) or Section 15(d) of the Exchange Act that is
incorporated by reference in the registration statement shall
be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona
fide offering thereof.
C. Undertaking With Respect to Indemnification
Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and
controlling persons of the registrant pursuant to the
foregoing provisions, or otherwise, the registrant has been
advised that in the opinion of the Commission such
indemnification is against public policy as expressed in the
Act and is, therefore, unenforceable. In the event that a
claim for indemnification against such liabilities (other than
the payment by the registrant of expenses incurred or paid by
a director, officer or controlling person of the registrant in
the successful defense of any action, suit or proceeding) is
asserted by such director, officer or controlling person in
connection with the securities being registered, the
registrant will, unless in the opinion of its counsel the
matter has been settled by controlling precedent, submit to a
court of appropriate jurisdiction the question
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<PAGE> 7
whether such indemnification by it is against public policy as
expressed in the Act and will be governed by the final
adjudication of such issue.
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that we, the undersigned directors and
officers of ITEQ, Inc., do hereby constitute and appoint Mark E. Johnson and
Lawrance W. McAfee, or either of them, our true and lawful attorneys and agents,
to do any and all acts and things in our name and on our behalf in our
capacities as directors and officers, and to execute any and all instruments for
us and in our names in the capacities indicated below, which said attorneys and
agents, or either of them, may deem necessary or advisable to enable said
corporation to comply with the Securities Act of 1933, as amended, and any
rules, regulations and requirements of the Securities and Exchange Commission,
in connection with the filing of this Registration Statement, including
specifically without limitation, power and authority to sign for any of us, in
our names in the capacities indicated below, any and all amendments hereto; and
we do each hereby ratify and confirm all that the said attorneys and agents, or
either of them, shall do or cause to be done by virtue hereof.
SIGNATURES
Pursuant to the requirements of the Securities Act, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Houston, State of Texas, on April 14, 1998.
ITEQ, INC.
By: /s/ Mark E.Johnson
-----------------------------
Mark E. Johnson
Chairman of the Board
and Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities indicated on April 14, 1998.
SIGNATURE TITLE
/s/ Mark E. Johnson Director, Chairman of the Board,
- --------------------------------- and Chief Executive Officer
Mark E. Johnson (Principal Executive Officer)
/s/ Lawrance W. McAfee Director, Executive Vice President,
- --------------------------------- Chief Financial Officer and Secretary
Lawrance W. McAfee (Principal Financial and Accounting Officer)
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/s/ Thomas N. Amonett Director
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Thomas N. Amonett
- --------------------------------- Director
Nathan M. Avery
/s/ Pierre S. Melcher Director
- ---------------------------------
Pierre S. Melcher
/s/ T. William Porter Director
- ---------------------------------
T. William Porter
- --------------------------------- Director
James L. Rainey, Jr.
- --------------------------------- Director
James A. Read
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INDEX TO EXHIBITS
Exhibit Description
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4.1 The Company's 1990 Incentive Stock Plan (Incorporated by
reference to the Company's Registration Statement on Form S-4,
filed September 18, 1997, File No. 333-35891).
4.2 AIX's 1984 Stock Option Plan (Incorporated by reference to
AIX's Registration Statement on Form S-8, filed February 14,
1986, File No. 33-3360).
4.3 AIX's 1989 Stock Incentive Plan (Incorporated by reference to
AIX's Registration Statement on Form S-8, filed July 6, 1989,
File No. 33-29754).
4.4 AIX'S 1994 Stock Option Plan for Employees of Brown-Minneapolis
Tank & Fabricating Co. (Incorporated by reference to AIX's
Registration Statement on Form S-8, filed on October 12, 1994,
File No. 33-85106).
4.5 AIX's 1995 Nonemployee Directors Stock Option Plan
(Incorporated by reference to AIX's Registration Statement on
Form S-8, filed November 14, 1995, File No. 33-99290).
*4.6 Amendment to AIX's 1984 Stock Option Plan.
*4.7 Amendment to AIX's 1989 Stock Incentive Plan.
*4.8 Amendment to AIX's 1994 Stock Option Plan for Employees of
Brown-Minneapolis Tank & Fabricating Co.
*4.9 Amendment to AIX's 1995 Nonemployee Directors Stock Option
Plan.
*5.1 Opinion of Porter & Hedges, L.L.P.
*23.1 Consent of Arthur Andersen LLP
*23.2 Consent of Coopers & Lybrand L.L.P.
*23.3 Consent of Porter & Hedges, L.L.P. (included in Exhibit 5.1)
*24.1 Power of Attorney (included on the signature page hereto)
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* Filed herewith.
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<PAGE> 1
EXHIBIT 4.6
AMENDMENT TO 1984 STOCK OPTION PLAN
WHEREAS, the Board of Directors of Astrotech International Corporation,
a Delaware corporation ("AIX"), adopted the 1984 Stock Option Plan of AIX on
July 10, 1984 and amended said plan on September 7, 1984, which was thereafter
approved by the stockholders of AIX on February 5, 1985 (the 1984 Stock Option
Plan as amended by the Board of Directors and approved by the Stockholders
hereinafter, the "Plan");
WHEREAS, pursuant to that certain Plan and Agreement of Merger (the
"Merger Agreement"), dated as of June 30, 1997, between AIX and ITEQ, Inc , a
Delaware corporation ("ITEQ"), AIX agreed to merge with and into ITEQ;
WHEREAS, pursuant to the Merger Agreement, on the Effective Date (as
defined in the Merger Agreement) each share of AIX Common Stock (as defined in
the Merger Agreement) then issued and outstanding, without any action on the
part of the holders thereof, automatically became and were converted into the
right to receive certificates evidencing 0.93 of a fully paid and nonassessable
share of issued and outstanding ITEQ Common Stock (as defined in the Merger
Agreement) upon surrendering, in accordance with the provisions of Paragraph
1.9.3 of the Merger Agreement, of certificates theretofore evidencing shares of
AIX Common Stock;
WHEREAS, the Plan was adopted by the stockholders of ITEQ on October
28, 1997; and
WHEREAS, ITEQ desires to amend the Plan to provide for issuance of ITEQ
Common Stock upon the exercise of any option subject to the Plan.
NOW, THEREFORE, the Plan is hereby amended by the addition of the
following provision:
Upon exercise of any option subject to the Plan, the
optionholder shall receive the number of shares of common stock of
ITEQ, Inc., par value $.001 per share ("ITEQ Common Stock"), determined
by multiplying the number of shares of common stock subject to the
option being exercised by 0.93. The exercise price per share of ITEQ
Common Stock shall equal the exercise price per share of the common
stock of Astrotech International Corporation that was subject to such
option divided by 0.93. If the foregoing calculation results in an
option being exercised for a fraction of a share of ITEQ Common Stock,
then the number of shares of ITEQ Common Stock subject to such option
shall be rounded up to the nearest whole number of shares.
Except as amended hereby, the term, exerciseability, vesting schedule,
and other terms and conditions of the outstanding options subject to the Plan
will otherwise be unchanged and shall operate in accordance with their terms.
This Amendment to 1984 Stock Option Plan is effective as of October 28,
1997 pursuant to a resolution of the Board of Directors of ITEQ duly adopted on
July 23, 1997.
<PAGE> 1
EXHIBIT 4.7
AMENDMENT TO 1989 STOCK INCENTIVE PLAN
WHEREAS, the Board of Directors of ITEQ, Inc. (the "Company"), at a
meeting duly called and held on July 23, 1997, adopted resolutions (the "Merger
Resolutions") approving, among other matters, the execution by the Company of a
Plan and Agreement of Merger (the "Merger Agreement") between the Company and
Astrotech International Corporation ("AIX");
WHEREAS, the Board of Directors of AIX, adopted the 1989 Stock
Incentive Plan of AIX, which was thereafter approved by the stockholders of AIX
on May 18, 1995;
WHEREAS, pursuant to the Merger Agreement, on the Effective Date (as
defined in the Merger Agreement) each share of AIX Common Stock (as defined in
the Merger Agreement) then issued and outstanding, without any action on the
part of the holders thereof, will automatically become and be converted into the
right to receive certificates evidencing 0.93 of a fully paid and nonassessable
share of issued and outstanding ITEQ Common Stock (as defined in the Merger
Agreement) upon surrendering, in accordance with the provisions of Paragraph
1.9.3 of the Merger Agreement, of certificates theretofore evidencing shares of
AIX Common Stock;
WHEREAS, on the Effective Date ITEQ will need to amend the Plan to
provide for issuance of ITEQ Common Stock upon the exercise of any option
subject to the Plan;
WHEREAS, included in the Merger Resolutions is a resolution approving
any additional resolutions required in connection with the matters described in
the Merger Resolutions, provided that the Proper Officers of the Company, on
advice of counsel, consider the adoption thereof necessary and advisable, in
which case, said resolution directs the Secretary of the Company to insert as an
appendix to the Merger Resolutions a copy of such additional resolutions; and
WHEREAS, the Proper Officers, on advice of counsel, consider the
adoption of the following resolutions to be necessary and advisable with respect
to the matters described in the Merger Resolutions;
NOW, THEREFORE, BE IT RESOLVED that, on the Effective Date, the Plan be
amended by the addition of the following provisions:
Upon exercise of any option subject to the Plan, the
optionholder shall receive the number of shares of common stock of
ITEQ, Inc., par value $.001 per share ("ITEQ Common Stock"), determined
by multiplying the number of shares of common stock subject to the
option being exercised by 0.93. The exercise price per share of ITEQ
Common Stock shall equal the exercise price per share of the common
stock of Astrotech International Corporation that was subject to such
option divided by 0.93. If the foregoing calculation results in an
option being exercised for a fraction of a share of ITEQ Common Stock,
then the number of shares of ITEQ Common Stock subject to such option
shall be rounded up to the nearest whole number of shares.
No options shall be issued under the Plan after October 28,
1997.
RESOLVED FURTHER, that, except as amended as provided above, the term,
exerciseability, vesting schedule, and other terms and conditions of the
outstanding options, stock appreciation rights and restricted stock subject to
the Plan will otherwise be unchanged and shall operate in accordance with their
respective terms.
<PAGE> 1
EXHIBIT 4.8
AMENDMENT TO 1994 STOCK OPTION PLAN
WHEREAS, the Board of Directors of ITEQ, Inc. (the "Company"), at a
meeting duly called and held on July 23, 1997, adopted resolutions (the "Merger
Resolutions") approving, among other matters, the execution by the Company of a
Plan and Agreement of Merger (the "Merger Agreement") between the Company and
Astrotech International Corporation ("AIX");
WHEREAS, the Board of Directors of AIX adopted the 1994 Stock Option
Plan for Employees of Brown-Minneapolis Tank & Fabricating Co., which was
thereafter approved by the stockholders of AIX on May 17, 1994 (the "Plan");
WHEREAS, pursuant to the Merger Agreement, on the Effective Date (as
defined in the Merger Agreement) each share of AIX Common Stock (as defined in
the Merger Agreement) then issued and outstanding, without any action on the
part of the holders thereof, will automatically become and be converted into the
right to receive certificates evidencing 0.93 of a fully paid and nonassessable
share of issued and outstanding ITEQ Common Stock (as defined in the Merger
Agreement) upon surrendering, in accordance with the provisions of Paragraph
1.9.3 of the Merger Agreement, of certificates theretofore evidencing shares of
AIX Common Stock;
WHEREAS, on the Effective Date ITEQ will need to amend the Plan to
provide for issuance of ITEQ Common Stock upon the exercise of any option
subject to the Plan;
WHEREAS, included in the Merger Resolutions is a resolution approving
any additional resolutions required in connection with the matters described in
the Merger Resolutions, provided that the Proper Officers of the Company, on
advice of counsel, consider the adoption thereof necessary and advisable, in
which case, said resolution directs the Secretary of the Company to insert as an
appendix to the Merger Resolutions a copy of such additional resolutions; and
WHEREAS, the Proper Officers, on advice of counsel, consider the
adoption of the following resolutions to be necessary and advisable with respect
to the matters described in the Merger Resolutions;
NOW, THEREFORE, BE IT RESOLVED that, on the Effective Date, the Plan be
amended by the addition of the following provisions:
Upon exercise of any option subject to the Plan, the
optionholder shall receive the number of shares of common stock of
ITEQ, Inc., par value $.001 per share ("ITEQ Common Stock"), determined
by multiplying the number of shares of common stock subject to the
option being exercised by 0.93. The exercise price per share of ITEQ
Common Stock shall equal the exercise price per share of the common
stock of Astrotech International Corporation that was subject to such
option divided by 0.93. If the foregoing calculation results in an
option being exercised for a fraction of a share of ITEQ Common Stock,
then the number of shares of ITEQ Common Stock subject to such option
shall be rounded up to the nearest whole number of shares.
No options shall be issued under the Plan after October 28,
1997.
RESOLVED FURTHER, that, except as amended as provided above, the term,
exerciseability, vesting schedule, and other terms and conditions of the
outstanding options subject to the Plan will otherwise be unchanged and shall
operate in accordance with their terms.
<PAGE> 1
EXHIBIT 4.9
AMENDMENT TO 1995 NONEMPLOYEE DIRECTORS STOCK OPTION PLAN
WHEREAS, the Board of Directors of ITEQ, Inc. (the "Company"), at a
meeting duly called and held on July 23, 1997, adopted resolutions (the "Merger
Resolutions") approving, among other matters, the execution by the Company of a
Plan and Agreement of Merger (the "Merger Agreement") between the Company and
Astrotech International Corporation ("AIX");
WHEREAS, the Board of Directors of AIX, adopted the 1995 Stock Option
Plan of AIX, which was thereafter approved by the stockholders of AIX on May 9,
1995;
WHEREAS, pursuant to the Merger Agreement, on the Effective Date (as
defined in the Merger Agreement) each share of AIX Common Stock (as defined in
the Merger Agreement) then issued and outstanding, without any action on the
part of the holders thereof, will automatically become and be converted into the
right to receive certificates evidencing 0.93 of a fully paid and nonassessable
share of issued and outstanding ITEQ Common Stock (as defined in the Merger
Agreement) upon surrendering, in accordance with the provisions of Paragraph
1.9.3 of the Merger Agreement, of certificates theretofore evidencing shares of
AIX Common Stock;
WHEREAS, on the Effective Date ITEQ will need to amend the Plan to
provide for issuance of ITEQ Common Stock upon the exercise of any option
subject to the Plan;
WHEREAS, included in the Merger Resolutions is a resolution approving
any additional resolutions required in connection with the matters described in
the Merger Resolutions, provided that the Proper Officers of the Company, on
advice of counsel, consider the adoption thereof necessary and advisable, in
which case, said resolution directs the Secretary of the Company to insert as an
appendix to the Merger Resolutions a copy of such additional resolutions; and
WHEREAS, the Proper Officers, on advice of counsel, consider the
adoption of the following resolutions to be necessary and advisable with respect
to the matters described in the Merger Resolutions;
NOW, THEREFORE, BE IT RESOLVED that, on the Effective Date, the Plan be
hereby amended by the addition of the following provisions:
Upon exercise of any option subject to the Plan, the
optionholder shall receive the number of shares of common stock of
ITEQ, Inc., par value $.001 per share ("ITEQ Common Stock"), determined
by multiplying the number of shares of common stock subject to the
option being exercised by 0.93. The exercise price per share of ITEQ
Common Stock shall equal the exercise price per share of the common
stock of Astrotech International Corporation that was subject to such
option divided by 0.93. If the foregoing calculation results in an
option being exercised for a fraction of a share of ITEQ Common Stock,
then the number of shares of ITEQ Common Stock subject to such option
shall be rounded up to the nearest whole number of shares.
No options shall be issued under the Plan after October 28,
1997.
RESOLVED FURTHER, that, except as amended as provided above, the term,
exerciseability, vesting schedule, and other terms and conditions of the
outstanding options subject to the Plan will otherwise be unchanged and shall
operate in accordance with their terms.
<PAGE> 1
EXHIBIT 5.1
April 14, 1998
Securities and Exchange Commission
Judiciary Plaza
450 Fifth Street, N.W.
Washington, D.C. 20549
Re: ITEQ, Inc. - Registration Statement on Form S-8
Ladies and Gentlemen:
We have acted as counsel to ITEQ, Inc., a Delaware corporation (the
"Company"), in connection with the registration on Form S-8 under the Securities
Act of 1933, as amended, of 982,824 shares (the "Shares") of the Company's
common stock, par value $.001 per share (the "Common Stock"). In such capacity,
we have examined the certificate of incorporation, as amended, the bylaws, and
corporate proceedings of the Company, and based on such examination and having
regard for applicable legal principles, it is our opinion the Shares to be
offered and sold pursuant to the Registration Statement will be validly issued,
fully-paid and nonassessable outstanding shares of Common Stock.
We consent to the use of this opinion as an exhibit to the Registration
Statement and to the reference to our firm in the Registration Statement.
Very truly yours,
/s/ Porter & Hegdes, L.L.P.
PORTER & HEDGES, L.L.P.
<PAGE> 1
EXHIBIT 23.1
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in this registration statement of our report dated March 5, 1998,
included in the Annual Report on Form 10-K of ITEQ, Inc. (the "Company") for the
year ended December 31, 1997, and to all references to our Firm included in this
registration statement on Form S-8 for the registration of 982,824 shares of the
common stock, par value $.001 per share, of the Company.
ARTHUR ANDERSEN LLP
Houston, Texas
April 9, 1998
<PAGE> 1
EXHIBIT 23.2
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
We consent to the incorporation by reference in the registration statement of
ITEQ, Inc. on Form S-8 for the ITEQ, Inc. 1990 Stock Option Plan, the Astrotech
International Corporation 1984 Stock Option Plan, the Astrotech International
Corporation 1989 Stock Incentive Plan, the Astrotech International Corporation
1994 Stock Option Plan for Employees of Brown-Minneapolis Tank & Fabricating
Co., and the Astrotech International Corporation 1995 Nonemployee Directors
Stock Option Plan, of our report dated December 6, 1996, on our audit of the
consolidated financial statements of Astrotech International Corporation and
subsidiaries as of September 30, 1996, and for each of the two years in the
period ended September 30, 1996.
COOPERS & LYBRAND L.L.P.
Pittsburgh, Pennsylvania
April 9, 1998
