1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON AUGUST 3, 2001
REGISTRATION NO. 333-
------
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
----------------------
FORM 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 jurisdiction of (I.R.S. Employer
incorporation or organization) Identification Number)
702 SPIRIT 40 PARK DRIVE
CHESTERFIELD, MISSOURI 63005
(Address of principal executive offices) (Zip Code)
----------------------
INSITUFORM TECHNOLOGIES, INC.
2001 EMPLOYEE EQUITY INCENTIVE PLAN
JOSEPH A. WHITE
VICE PRESIDENT AND CHIEF FINANCIAL OFFICER
INSITUFORM TECHNOLOGIES, INC.
702 SPIRIT 40 PARK DRIVE
CHESTERFIELD, MISSOURI 63005
(Name and address of agent for service)
Telephone number, including area code, of agent for service: (636) 530-8000
----------------------
Copies to:
THOMAS A. A. COOK, ESQ. ROBERT M. LAROSE, ESQ.
VICE PRESIDENT AND GENERAL COUNSEL THOMPSON COBURN LLP
INSITUFORM TECHNOLOGIES, INC. ONE FIRSTAR PLAZA
702 SPIRIT 40 PARK DRIVE ST. LOUIS, MISSOURI 63101
CHESTERFIELD, MISSOURI 63005 (314) 552-6000
(636) 530-8000
CALCULATION OF REGISTRATION FEE
=============================================================================================================================
Title of Securities to Amount to be Proposed Maximum Offering Proposed Maximum Amount of Registration
be Registered Registered Price Per Share(1) Aggregate Offering Price(1) Fee
- -----------------------------------------------------------------------------------------------------------------------------
Class A common stock, 1,000,000 shares $33.93 $33,930,000 $8,482.50
$0.01 par value
=============================================================================================================================
(1) Estimated solely for purposes of computing the Registration Fee pursuant
to the provisions of Section 457(h), based upon the average of the high
and low sale prices of Class A common stock, $0.01 par value, of the
Registrant as reported on the Nasdaq National Market on July 30, 2001.
----------------------
2
The undersigned Registrant hereby files this Registration Statement on
Form S-8 (this "Registration Statement") to register 1,000,000 shares of
Insituform Technologies, Inc. (the "Company") Class A common stock, $0.01 par
value (the "Class A Common Stock"), for issuance to participants under the
Insituform Technologies, Inc. 2001 Employee Equity Incentive Plan (the "Plan").
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Certain Documents by Reference.
The following documents filed with the Securities and Exchange
Commission are incorporated herein by reference:
(i) The Company's Annual Report on Form 10-K for the year ended
December 31, 2000;
(ii) The Company's Quarterly Report on Form 10-Q for the quarter
ended March 31, 2001;
(iii) The Company's Current Reports on Form 8-K filed January 17,
2001, March 14, 2001, April 12, 2001 and April 19, 2001; and
(iv) The description of the Company's Class A Common Stock as
contained in the Registration Statement filed pursuant to
Section 12 of the Securities Exchange Act of 1934, including
any amendments or reports filed for the purpose of updating
such description.
All documents filed by the Company pursuant to Sections 13(a), 13(c),
14 and 15(d) of the Securities Exchange Act of 1934, as amended, after the date
of this Registration Statement and prior to the filing of a post-effective
amendment which indicates that all securities offered hereby have been sold or
which deregisters all securities remaining unsold, shall be deemed to be
incorporated by reference in this Registration Statement and to be made a part
hereof from the date of filing of such documents. Any statements contained
herein or in a document incorporated herein by reference shall be deemed to be
modified or superseded for purposes of this Registration Statement to the extent
that a statement contained in a subsequently filed document incorporated herein
by reference modifies or supersedes such document. Any statement so modified or
superseded shall not be deemed, except as so modified or superseded, to
constitute a part of this Registration Statement.
Where any document or part thereof is incorporated by reference in this
Registration Statement, the Company will provide without charge to each person
to whom a Prospectus with respect to the Plan is delivered, upon written or oral
request of such person, a copy of any and all of the information incorporated by
reference in this Registration Statement, excluding exhibits unless such
exhibits are specifically incorporated by reference.
Item 6. Indemnification of Directors and Officers.
The Company's Restated Certificate of Incorporation, as amended,
requires the Company to indemnify all persons whom the Company may indemnify
under Section 145 of the Delaware General Corporation Law (the "DGCL") to the
full extent permitted by Section 145 as it may be amended from time to time.
Subject to restrictions contained in the DGCL, a corporation may indemnify any
person who was or is a party or is threatened to be made a party to any
threatened, pending or completed action, suit or proceeding by reason of the
fact that the person is or was a director, officer, employee or agent of
- 2 -
3
the corporation, or is or was serving at the request of the corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise, against expenses (including attorney's
fees), judgments, fines and amounts paid in settlement actually and reasonably
incurred in connection therewith if such person acted in good faith and in a
manner such person reasonably believed to be in or not opposed to the best
interests of the corporation, and, in connection with any criminal action or
proceeding, had no reasonable cause to believe the person's conduct was
unlawful.
Such indemnification may also be provided in any action or suit by or
in the right of the corporation, except that no indemnification shall be made
with respect to any amounts to which the person has been found liable to the
corporation unless the court shall determine that such person is fairly and
reasonably entitled to indemnity despite the adjudication of liability. Such
determination shall be made by the corporation or, with respect to a person who
is a director or officer at the time of such determination, by (a) a majority
vote of the board of directors who were not parties to such action, suit or
proceeding, even though less than a quorum, or (b) by a committee of directors
designated by majority vote of such directors, even though less than a quorum,
or (c) if there are no such directors, or if such directors so direct, by
special independent counsel in a written opinion or (d) by the stockholders. A
person who is successful on the merits or otherwise in any action, suit or
proceeding covered by the indemnification statute shall be indemnified against
expenses actually and reasonably incurred in connection with such action, suit
or proceeding. Expenses incurred in defense of any action, suit or proceeding
may be paid in advance upon receipt by the corporation of a written undertaking
by or on behalf of the person to repay such amount if it is ultimately
determined that the person is not entitled to indemnification under the statute.
The indemnification provided by the DGCL is not exclusive of any other
rights to indemnification to which such person may be entitled under any by-law,
agreement, vote of stockholders or disinterested directors or otherwise, and
shall inure to the benefit of the heirs, executors and administrators of such
person. Insurance may be purchased on behalf of any person entitled to
indemnification by the corporation against any liability asserted against him or
her and incurred in an official capacity regardless of whether the person could
be indemnified under the statute.
Paragraph Tenth of the Company's Restated Certificate of Incorporation,
as amended, provides that a director of the Company shall not be personally
liable to the Company or its stockholders for monetary damages for breach of
fiduciary duty as a director, except for liability (i) for any breach of the
director's duty of loyalty to the Company or its stockholders, (ii) for acts or
omissions not in good faith or which involve intentional misconduct or a knowing
violation of law, (iii) for unlawful payment of dividends or for unlawful stock
purchase or redemption of the corporation's stock under Section 174 of the DGCL,
(iv) for any transaction from which the director derived an improper personal
benefit or (v) for any act or omission occurring prior to the date Paragraph
Tenth became effective.
In addition to the provisions in its Restated Certificate of
Incorporation, as amended, the Company has taken such other steps as are
reasonably necessary to effect its indemnification policy. Included among such
other steps is liability insurance provided by the Company for its directors and
officers for certain losses arising from claims or charges made against them in
their capacities as directors or officers of the Company. The Company has also
entered into indemnification agreements with individual directors and officers.
These agreements generally provide such directors and officers with a
contractual right of indemnification to the full extent provided by applicable
law and the charter documents of the Company as in effect at the respective
dates of such agreements.
The Company has placed in effect insurance which purports (a) to insure
it against certain costs of indemnification which may be incurred by it pursuant
to provisions in its Restated Certificate of
- 3 -
4
Incorporation, as amended, or otherwise and (b) to insure the officers and
directors of the Company against certain liabilities incurred by them in the
discharge of their functions as officers and directors except for liabilities
arising from their own malfeasance.
Insofar as indemnification for liabilities arising under the Securities
Act of 1933, as amended, may be permitted to directors, officers or persons
controlling the Company pursuant to the foregoing provisions, the Company has
been informed that in the opinion of the Securities and Exchange Commission such
indemnification is against public policy as expressed in the Securities Act of
1933, as amended, and is therefore unenforceable.
Item 8. Exhibits.
See Exhibit Index on page 8 hereof.
Item 9. Undertakings.
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers and 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;
(iii) To include any material information with
respect to the plan of distribution 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 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934)
- 4 -
5
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.
- 5 -
6
SIGNATURES
THE REGISTRANT. Pursuant to the requirements of the Securities Act of
1933, as amended, 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 County of St. Louis County, State
of Missouri, on August 3, 2001.
INSITUFORM TECHNOLOGIES, INC.
By /s/ Joseph A. White
------------------------------------------------
Joseph A. White
Vice President and Chief Financial Officer
POWER OF ATTORNEY
Each person whose signature appears below hereby constitutes and
appoints Joseph A. White the undersigned's true and lawful attorney-in-fact and
agent, with full power of substitution and resubstitution, for the undersigned
and in the undersigned's name, place and stead, in any and all capacities, to
sign any and all amendments (including post-effective amendments) to this
Registration Statement on Form S-8 with respect to the 2001 Employee Equity
Incentive Plan, and to file the same, with exhibits and any and all other
documents filed with respect thereto, with the Securities and Exchange
Commission (or any other governmental or regulatory authority), granting unto
said attorney-in-fact and agent full power and authority to do and to perform
each and every act and thing requisite and necessary to be done in ratifying and
confirming all that said attorney-in-fact and agent or his substitute or
substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed by the following persons in the
capacities and on the date indicated.
SIGNATURE TITLE DATE
- --------- ----- ----
/s/ Anthony W. Hooper President, Chief Executive Officer August 3, 2001
- --------------------------------- and Director
Anthony W. Hooper
Principal Executive Officer
/s/ Joseph A. White Vice President and Chief Financial August 3, 2001
- --------------------------------- Officer
Joseph A. White
Principal Financial and Accounting
Officer
/s/ Robert W. Affholder Director August 3, 2001
- ---------------------------------
Robert W. Affholder
- 6 -
7
/s/ Paul A. Biddelman Director August 3, 2001
- ---------------------------------
Paul A. Biddelman
/s/ Stephen P. Cortinovis Director August 3, 2001
- ---------------------------------
Stephen P. Cortinovis
/s/ Juanita H. Hinshaw Director August 3, 2001
- ---------------------------------
Juanita H. Hinshaw
/s/ Thomas N. Kalishman Director August 3, 2001
- ---------------------------------
Thomas N. Kalishman
/s/ Sheldon Weinig Director August 3, 2001
- ---------------------------------
Sheldon Weinig
/s/ Alfred L. Woods Director August 3, 2001
- ---------------------------------
Alfred L. Woods
- 7 -
8
EXHIBIT INDEX
EXHIBIT NO.
4.1 Restated Certificate of Incorporation, as amended, of the
Company, incorporated herein by reference to Exhibit 3.1 to
the Company's Quarterly Report on Form 10-Q for the quarter
ended June 30, 2000.
4.2 By-Laws, as amended, of the Company, incorporated herein by
reference to Exhibit 3.2 to the Company's Annual Report on
Form 10-K for the year ended December 31, 2000.
5.1 Opinion of Thompson Coburn LLP as to the legality of the
securities being registered.
23.1 Consent of Arthur Andersen LLP.
23.2 Consent of Thompson Coburn LLP (included in Exhibit 5.1).
24.1 Power of Attorney (set forth on signature page hereto).
99.1 Insituform Technologies, Inc. 2001 Employee Equity Incentive
Plan.
- 8 -