As filed with the Securities and Exchange Commission
on November 2, 1995
Registration No. 33-
=================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
----------------
F O R M S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
---------------
INSITUFORM TECHNOLOGIES, INC.
(Exact name of registrant as specified in its charter)
---------------
DELAWARE 13-3032158
(State or other jurisdic- (I.R.S. Employer
tion of incorporation Identification No.)
or organization)
1770 Kirby Parkway
Suite 300
Memphis, Tennessee 38138
(Address of principal executive offices)
--------------
INSITUFORM MID-AMERICA, INC.
STOCK OPTION PLAN
(Full Title of Plan)
--------------
JEAN-PAUL RICHARD
President and Chief Executive Officer
Insituform Technologies, Inc.
1770 Kirby Parkway
Suite 300
Memphis, Tennessee 38138
(901) 759-7473
(Name and address and telephone number,
including area code, of agent for service)
---------------
Copies to:
HOWARD KAILES, ESQ.
Krugman, Chapnick & Grimshaw
Park 80 West - Plaza Two
Saddle Brook, New Jersey 07663
--------------
===================================================================
===================================================================================
CALCULATION OF REGISTRATION FEE
===================================================================================
Title of Proposed maximum Proposed maximum Amount
securities to be Amount to be offering price aggregate of
registered registered per share offering price registration fee
- ---------------- ------------ ---------------- ---------------- ----------------
Class A Common Stock 43,520 $ 5.22(1) $ 236,570.40 $ 81.58
($.01 par value) shares
Class A Common Stock 23,615 $ 2.61(2) $ 61,635.15 $ 21.26
($.01 par value) shares
Class A Common Stock 16,868 $ 4.32(3) $ 72,869.76 $ 25.13
($.01 par value) shares
Class A Common Stock 15,334 $ 3.58(4) $ 54,895.72 $ 18.93
($.01 par value) shares
Class A Common Stock 104,644 $ 9.79(5) $1,024,464.76 $353.27
($.01 par value) shares
Class A Common Stock 1,955 $11.09(6) $ 21,680.95 $ 7.48
($.01 par value) shares
Class A Common Stock 5,865 $12.83(7) $ 75,247.95 $ 25.95
($.01 par value) shares
Class A Common Stock 1,150 $12.34(8) $ 14,191.00 $ 4.90
($.01 par value) shares
Class A Common Stock 18,400 $11.20(9) $ 206,080.00 $ 71.07
($.01 par value) shares
Class A Common Stock 4,600 $12.51(10) $ 57,546.00 $ 19.85
($.01 par value) shares
Class A Common Stock 345 $ 8.92(11) $ 3,077.40 $ 1.07
($.01 par value) shares
Class A Common Stock 1,495 $ 8.60(12) $ 12,857.00 $ 4.44
($.01 par value) shares
Class A Common Stock 1,495 $ 8.86(13) $ 13,245.71 $ 4.57
($.01 par value) shares
Class A Common Stock 73,140 $ 7.40(14) $ 541,236.00 $186.64
($.01 par value) shares
Class A Common Stock 17,250 $ 9.03(15) $ 155,767.50 $ 53.72
($.01 par value) shares
Class A Common Stock 2,415 $ 9.14(16) $ 22,073.10 $ 7.62
($.01 par value) shares
Class A Common Stock 345 $12.29(17) $ 4,240.05 $ 1.47
($.01 par value) shares
Class A Common Stock 115,000 $13.75(18) $1,581,250.00 $545.26
($.01 par value) shares
Total 449,236 $4,158,928.45 $1,434.21
shares
===================================================================================
(1) Estimated solely for purposes of calculating the registration
fee on the basis of an exercise price of $5.22 per share of
Class A Common Stock for shares subject to options granted.
(2) Estimated solely for purposes of calculating the registration
fee on the basis of an exercise price of $2.61 per share of
Class A Common Stock for shares subject to options granted.
(3) Estimated solely for purposes of calculating the registration
fee on the basis of an exercise price of $4.32 per share of
Class A Common Stock for shares subject to options granted.
(4) Estimated solely for purposes of calculating the registration
fee on the basis of an exercise price of $3.58 per share of
Class A Common Stock for shares subject to options granted.
(5) Estimated solely for purposes of calculating the registration
fee on the basis of an exercise price of $9.79 per share of
Class A Common Stock for shares subject to options granted.
(6) Estimated solely for purposes of calculating the registration
fee on the basis of an exercise price of $11.09 per share of
Class A Common Stock for shares subject to options granted.
(7) Estimated solely for purposes of calculating the registration
fee on the basis of an exercise price of $12.83 per share of
Class A Common Stock for shares subject to options granted.
(8) Estimated solely for purposes of calculating the registration
fee on the basis of an exercise price of $12.34 per share of
Class A Common Stock for shares subject to options granted.
(9) Estimated solely for purposes of calculating the registration
fee on the basis of an exercise price of $11.20 per share of
Class A Common Stock for shares subject to options granted.
(10) Estimated solely for purposes of calculating the registration
fee on the basis of an exercise price of $12.51 per share of
Class A Common Stock for shares subject to options granted.
(11) Estimated solely for purposes of calculating the registration
fee on the basis of an exercise price of $8.92 per share of
Class A Common Stock for shares subject to options granted.
(12) Estimated solely for purposes of calculating the registration
fee on the basis of an exercise price of $8.60 per share of
Class A Common Stock for shares subject to options granted.
(13) Estimated solely for purposes of calculating the registration
fee on the basis of an exercise price of $8.86 per share of
Class A Common Stock for shares subject to options granted.
(14) Estimated solely for purposes of calculating the registration
fee on the basis of an exercise price of $7.40 per share of
Class A Common Stock for shares subject to options granted.
(15) Estimated solely for purposes of calculating the registration
fee on the basis of an exercise price of $9.03 per share of
Class A Common Stock for shares subject to options granted.
(16) Estimated solely for purposes of calculating the registration
fee on the basis of an exercise price of $9.14 per share of
Class A Common Stock for shares subject to options granted.
(17) Estimated solely for purposes of calculating the registration
fee on the basis of an exercise price of $12.29 per share of
Class A Common Stock for shares subject to options granted.
(18) Estimated solely for purposes of calculating the registration
fee on the basis of an exercise price of $13.75 per share of
Class A Common Stock for shares subject to options granted.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Information Incorporated by Reference
-------------------------------------
There are hereby incorporated by reference in this
Registration Statement the following documents and information
heretofore filed by Insituform Technologies, Inc. (the "Company")
under the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), with the Securities and Exchange Commission:
(a) Annual Report on Form 10-K for the year ended
December 31, 1994, as amended by Amendment No. 1 thereto;
(b) Current Report on Form 8-K dated January 9, 1995;
(c) Quarterly Report on Form 10-Q for the quarter ended
March 31, 1995, as amended by Amendment No. 1 thereto;
(d) Current Report on Form 8-K dated April 4, 1995;
(e) Current Report on Form 8-K dated April 18, 1995;
(f) Current Report on Form 8-K dated April 28, 1995;
(g) Current Report on Form 8-K dated May 23, 1995;
(h) Current Report on Form 8-K dated June 7, 1995;
(i) Quarterly Report on Form 10-Q for the quarter ended
June 30, 1995;
(j) Report on Form 10-C dated September 1, 1995;
(k) Report on Form 10-C dated October 25, 1995; and
(l) Current Report on Form 8-K dated October 25, 1995.
All documents filed by the Company pursuant to Sections 13(a),
13(c), 14 and 15(d) of the Exchange Act after the date of this
Registration Statement and prior to the filing of a post-effective
amendment which indicates that all securities offered hereunder
have been sold or which deregisters all securities then remaining
unsold, shall be deemed to be incorporated by reference in this
Registration Statement and to be a part hereof from the date of
filing of such documents.
Certain information contained in this Registration Statement
summarizes, is based upon, or refers to, information contained in
one or more exhibits to this Registration Statement. Accordingly,
the information contained herein is qualified in its entirety by
reference to such documents and should be read in conjunction
therewith.
Item 4. Description of Securities
-------------------------
Not applicable.
Item 5. Interests of Named Experts and Counsel
--------------------------------------
The validity of the securities being offered hereby is being
passed upon for the Company by Krugman, Chapnick & Grimshaw, Park
80 West - Plaza Two, Saddle Brook, New Jersey 07663-5819. James D.
Krugman, a partner in Krugman, Chapnick & Grimshaw, is a director
and Chairman of the Board of the Company, and Howard Kailes, a
partner of such firm, is Secretary of the Company. Mr. Krugman owns
10,000 shares of Common Stock; is managing partner of a partnership
which owns 40,364 shares of Common Stock (in 5,046 shares of which
Mr. Krugman has a beneficial interest); has shared voting and
investment power over 33,300 shares of Common Stock owned by a
general partnership in which his mother has an interest; and has
the right to acquire 95,000 additional shares which are issuable
upon the exercise of options granted by the Company (of which
options covering 47,500 shares are currently exercisable).
Item 6. Indemnification of Directors and Officers
-----------------------------------------
Under the provisions of Paragraph Seventh of the Certificate
of Incorporation of the Company and Section 145 of the General
Corporation Law of the State of Delaware (the "GCL"), as amended,
the Company is required to indemnify a director or officer of the
Company for expenses arising out of legal proceedings in which the
director or officer became involved by reason of his position as a
director or officer of the Company, if he acted in good faith and
in a manner he reasonably believed to be in or not opposed to the
best interests of the Company and, with respect to any criminal
proceedings, if he had no reasonable cause to believe his conduct
was unlawful. In a proceeding to procure a judgment in the
Company's favor, a director or officer may be indemnified for
expenses incurred by him in connection with the defense or
settlement of the suit if he acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests
of the Company, except that no indemnification shall be permitted
without a court order in respect of any claim, issue, or matter as
to which such director or officer shall have been adjudged to be
liable for negligence or misconduct in the performance of his duty
to the Company. Indemnification of a director or officer as
provided above, unless court-ordered, shall be made by the Company
only upon a determination that indemnification is proper in a
specific case because the conduct of such director or officer meets
the standards set forth above. Such determination shall be made
(i)by a vote of the majority of a quorum consisting of directors
who were not parties to the proceeding involved, (ii) by
independent legal counsel in a written opinion or (iii) by the
stockholders of the Company.
Under agreements entered into by the Company and all of the
members of its Board of Directors, the foregoing indemnification
provisions have been supplemented as follows with respect to such
persons: (i) indemnification is permitted in the event the director
is wholly or partly successful; (ii) prompt payment of litigation
expenses is provided in advance of indemnification, subject to
repayment if it is subsequently determined that the director was
not entitled to indemnification for the expenses in question; (iii)
prompt indemnification is provided unless a determination is made
that the director has not met the applicable statutory standard;
(iv) in the event of a change in control of the Company, a
determination that indemnification is proper may be made solely by
independent legal counsel, in which case the indemnitee will be
presumed entitled to indemnification until such presumption is
overcome by the Company; and (v) the director is permitted to
petition a court or seek an award in arbitration with respect to
his entitlement to indemnification or advancement of expenses.
Those members of the Board of Directors of the Company (the
"Prior IGL Directors") who previously were directors of Insituform
Group Limited ("IGL") are entitled to the benefits of the agreement
dated July 3, 1992 (the "IGL Acquisition Agreement") among the
Company, INA Acquisition Corp. ("INA Sub") and IGL, pursuant to
which INA Sub will honor and assume all obligations of IGL pursuant
to IGL's Articles of Association and Memorandum of Association as
in effect on July 3, 1992 which provide for indemnification of
directors of IGL with respect to events occurring prior to the
effective date of the acquisition of IGL by the Company. The
Company has also agreed to indemnify the Prior IGL Directors in
connection with certain actions taken as directors of IGL with
respect to the liquidation of IGL contemplated by the IGL
Acquisition Agreement.
Those members of the Board of Directors of the Company (the
"Prior IMA Directors") who previously were directors of Insituform
Mid-America, Inc. ("IMA") are entitled to the benefits of the
agreement dated May 23, 1995 (the "IMA Merger Agreement") among the
Company, ITI Acquisition Corp. ("ITI Sub") and IMA, pursuant to
which the Company and IMA, as a wholly-owned subsidiary of the
Company, will, to the extent permitted by the GCL and other law,
honor all obligations of IMA pursuant to IMA's certificate of
incorporation and by-laws, and certain agreements entered into by
IMA, as in effect on May 23, 1995, which provide for
indemnification of directors of IMA with respect to events
occurring prior to the effective time of the merger of ITI Sub into
IMA. Under agreements entered into by IMA and all of its directors
prior to May 23, 1995, IMA undertook to indemnify such individuals
to the full extent permitted by applicable law.
In June 1988, the stockholders of the Company approved an
amendment to its Certificate of Incorporation to add a provision
which eliminates the personal liability of a director of the
Company to the Company or to any of its stockholders for monetary
damages for a breach of his fiduciary duty as a director, except in
the case where the director breached his duty of loyalty, failed to
act in good faith, engaged in intentional misconduct or knowingly
violated a law, authorized the payment of a dividend or approved a
stock repurchase in violation of Delaware corporate law, or
obtained an improper personal benefit or except for acts or
omissions occurring prior to June 17, 1988.
Item 7. Exemption from Registration Claimed
-----------------------------------
Not applicable.
Item 8. Exhibits
--------
The exhibits required to be filed as part of this Registration
Statement are listed in the attached Index to Exhibits.
Item 9. Undertakings
------------
(a) The undersigned Registrant hereby undertakes, except as
otherwise specifically provided in the rules of the Securities and
Exchange Commission promulgated under the Securities Act of 1933:
(1) To file, during any period in which offers or sales
are being made, a post-effective amendment to this registration
statement:
(i) To include any prospectus required by section
10(a)(3) of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or
events arising after the effective date of the registration
statement (or the most recent post-effective amendment
thereof) which, individually or in the aggregate, represent a
fundamental change in the information set forth in the
registration statement. Notwithstanding the foregoing, any
increase or decrease in volume of securities offered (if the
total dollar value of securities offered would not exceed that
which was registered) and any deviation from the low or high
end of the estimated maximum offering range may be reflected
in the form of prospectus filed with the Commission pursuant
to Rule 424(b) if, in the aggregate, the changes in volume and
price represent no more than a 20% change in the maximum
aggregate offering price set forth in the "Calculation of
Registration Fee" table in the effective registration
statement;
(iii) To include any material information with
respect to the plan of distribution not previously disclosed
in the registration statement or any material change to such
information in the registration statement;
Provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do
not apply if the registration statement is on Form S-3, Form S-8 or
Form F-3, and the information required to be included in a post-
effective amendment by those paragraphs is contained in periodic
reports filed with or furnished to the Commission by the Registrant
pursuant to section 13 or section 15(d) of the Securities Exchange
Act of 1934 that are incorporated by reference in the registration
statement.
(2) That, for the purpose of determining any liability
under the Securities Act of 1933, each such post-effective
amendment shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of
such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-
effective amendment any of the securities being registered which
remain unsold at the termination of the offering.
(b) The undersigned Registrant hereby undertakes that, for
purposes of determining any liability under the Securities Act of
1933, each filing of the Registrant's annual report pursuant to
section 13(a) or section 15(d) of the Securities Exchange Act of
1934 that is incorporated by reference in the registration
statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of
such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(c) Insofar as indemnification for liabilities arising under
the Securities Act of 1933 may be permitted to directors, officers
and controlling persons of the Registrant pursuant to the foregoing
provisions, or otherwise, the Registrant has been advised that in
the opinion of the Securities and Exchange Commission such
indemnification is against public policy as expressed in the Act
and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by
the Registrant of expenses incurred or paid by a director, officer
or controlling person of the Registrant in the successful defense
of any action, suit or proceeding) is asserted by such director,
officer or controlling person in connection with the securities
being registered, the Registrant will, unless in the opinion of its
counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in
the Act and will be governed by the final adjudication of such
issue.
CONSENT OF COUNSEL
The Consent of Krugman, Chapnick & Grimshaw is contained in
their opinion filed as Exhibit 5 to this Registration Statement.
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
Insituform Technologies, Inc.
Memphis, Tennessee
We hereby consent to the incorporation by reference in this
Registration Statement on Form S-8 of our report dated March 9,
1995 relating to the consolidated financial statements of
Insituform Technologies, Inc. appearing in the Company's Annual
Report on Form 10-K for the year ended December 31, 1994.
BDO SEIDMAN, LLP
Memphis, Tennessee
November 2, 1995
INDEPENDENT AUDITORS' CONSENT
The Board of Directors
Insituform Mid-America, Inc.
We consent to the incorporation by reference in this Registration
Statement on Form S-8 of our report dated November 15, 1994 related
to the consolidated balance sheets of Insituform Mid-America, Inc.
and subsidiaries as of September 30, 1994 and 1993 and the related
consolidated statements of income, changes in stockholders' equity,
and cash flows for each of the years in the three-year period ended
September 30, 1994, which report is incorporated by reference to
the Current Report on Form 8-K of Insituform Technologies, Inc.
dated October 25, 1995.
KPMG Peat Marwick LLP
St. Louis, Missouri
November 2, 1995
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration
Statement on Form S-8 of our report dated June 9, 1995 related to
the consolidated balance sheets of Enviroq Corporation (renamed IMA
Merger Sub, Inc.) as of March 25, 1995 and March 26, 1994 and for
the years then ended (which expresses an unqualified opinion and
includes explanatory paragraphs referring to the discontinued
operations of two subsidiaries and the sale of Enviroq common stock
to IMA on April 18,1995, and to an uncertainty regarding the
ultimate outcome of certain litigation and arbitration
proceedings), which report is incorporated by reference to the
Company's Current Report on Form 8-K dated October 25, 1995.
Deloitte & Touche LLP
Jacksonville, Florida
November 2, 1995
POWER OF ATTORNEY
The Registrant and each person whose signature appears below
hereby appoints James D. Krugman, Jean-Paul Richard and William A.
Martin, as attorneys-in-fact with full power of substitution,
severally, to execute in their respective names and on behalf of
the Registrant and each such person, individually and in each
capacity stated below, one or more amendments (including post-
effective amendments) to the registration statement as the
attorney-in-fact acting in the premises deems appropriate and to
file any such amendment to the registration statement with the
Securities and Exchange Commission.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933,
the Registrant certifies that it has reasonable grounds to believe
that it meets all of the requirements for filing on Form S-8 and
has duly caused this registration statement to be signed on its
behalf by the undersigned, thereunto duly authorized, in the City
of Memphis, State of Tennessee, on the 2nd day of November, 1995.
INSITUFORM TECHNOLOGIES, INC.
By s/Jean-Paul Richard
---------------------------
Jean-Paul Richard
President and Chief Executive
Officer
Pursuant to the requirements of the Securities Act of 1933,
this registration statement has been signed below by the following
persons in the capacities and on the dates indicated.
Signature Title Date
--------- ----- ----
s/Jean-Paul Richard President, Principal November 2, 1995
- ------------------------- Executive Officer
Jean-Paul Richard and Director
s/William A. Martin Principal Financial November 2, 1995
- ------------------------- and Accounting Officer
William A. Martin
s/Robert W. Affholder Director November 2, 1995
- -------------------------
Robert W. Affholder
s/Paul A. Biddelman Director November 2 , 1995
- -------------------------
Paul A. Biddelman
s/Brian Chandler Director November 2 , 1995
- -------------------------
Brian Chandler
s/Douglas K. Chick Director November 2 , 1995
- -------------------------
Douglas K. Chick
s/William Gorham Director November 2 , 1995
- -------------------------
William Gorham
s/Jerome Kalishman Director November 2 , 1995
- -------------------------
Jerome Kalishman
s/James D. Krugman Director November 2 , 1995
- -------------------------
James D. Krugman
s/Steven Roth Director November 2 , 1995
- -------------------------
Steven Roth
s/Alvin J. Siteman Director November 2 , 1995
- -------------------------
Alvin J. Siteman
s/Silas Spengler Director November 2 , 1995
- -------------------------
Silas Spengler
s/Sheldon Weinig Director November 2 , 1995
- -------------------------
Sheldon Weinig
s/Russell B. Wight, Jr. Director November 2 , 1995
- -------------------------
Russell B. Wight, Jr.
INDEX TO EXHIBITS
Number
4(i) - Copy of Insituform Mid-America,
Inc. Stock Option Plan, as amended.
4(ii) - Form of Stock Option Agreements
under Insituform Mid-America, Inc.
Stock Option Plan, as amended.
4(iii) - Certificate of Incorporation of the
Registrant.
4(iv) - By-Laws of the Registrant.
5 - Opinion of Krugman, Chapnick &
Grimshaw.
23(i) - Consent of BDO Seidman, LLP (See
"Consent of Independent Certified
Public Accountants" in the Regis-
tration Statement).
23(ii) - Consent of KPMG Peat Marwick LLP
(See "Independent Auditors' Consent"
in the Registration Statement).
23(iii) - Consent of Deloitte & Touche LLP
(See "Independent Auditors' Consent"
in the Registration Statement).
23(iv) - Consent of Counsel (contained in
Exhibit 5).
24 - Power of Attorney (See "Power of Attorney"
in the Registration Statement).