General Statement of Beneficial Ownership — Schedule 13D
Filing Table of Contents
Document/Exhibit Description Pages Size
1: SC 13D General Statement of Beneficial Ownership 12 55K
2: EX-1 Agreement Pursuant to Rule 13D-1(F)(1)(Iii) 1 7K
3: EX-2 Agreement and Plan of Merger 67 293K
4: EX-3 Form of Conversion Letter 1 8K
5: EX-4 Form of Pooling Letter Agreement 2 9K
6: EX-5 Form of Agreement 7 28K
7: EX-6 Form of Consulting Agreement 7 27K
CONSULTING AGREEMENT
AGREEMENT made this ----- day of --------, 1995 between Jerome
Kalishman residing at ----------------------------- (hereinafter
referred to as the "Consultant"), and Insituform Technologies,
Inc., a corporation organized and existing under the laws of the
State of Delaware (hereinafter referred to as the "Corporation").
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, the Corporation has entered into an Agreement and
Plan of Merger dated as of May 23, 1995 (hereinafter referred to as
the "Merger Agreement") with Insituform Mid-America, Inc., a
Delaware corporation (hereinafter referred to as "IMA"), and ITI
Acquisition Corp., a Delaware corporation and wholly-owned
subsidiary of the Corporation (hereinafter referred to as
"Acquisition Sub"), pursuant to the terms and subject to the
conditions of which the Corporation has agreed to the merger of
Acquisition Sub into IMA, as a result of which IMA will become a
wholly-owned subsidiary of the Corporation; and
WHEREAS, it is a condition to the closing under the Merger
Agreement that the parties hereto execute and deliver this
Agreement;
NOW, THEREFORE, in consideration of the mutual covenants and
agreements herein set forth, the Consultant hereby agrees with the
Corporation as follows:
SECTION I
---------
A. The Corporation hereby retains the Consultant to act as
a consultant and advisor to the Corporation in connection with its
business, and the Consultant hereby agrees to act in such capacity,
for the Consulting Term (as hereinafter defined) and upon the other
terms and conditions set forth herein.
B. The Consultant hereby agrees to serve the Corporation
faithfully, diligently and to the best of his ability under the
direction of the board of directors and of the President of the
Corporation. In connection with his duties hereunder, the
Consultant shall hold himself available, upon reasonable prior
notice from the Corporation, to provide the Corporation with such
services as the Corporation may from time to time reasonably
require of him.
SECTION II
----------
A. Subject to the provisions of this Agreement hereinafter
contained, for purposes of this Agreement the period (herein
referred to as the "Consulting Term") of the Consultant's
obligations under Section I hereof shall commence on the date
hereof and shall continue for a period of two years thereafter.
B. If the Consultant shall, during the Consulting Term fail
to perform his duties under this Agreement owing to illness or
other incapacity which shall continue for a period of more than six
months, the Corporation shall have the right to terminate the
Consulting Term as of a date to be specified in a notice to that
effect, whereupon the Consultant shall continue to receive his
retainer at the rate provided in Section III up to the last day of
the month in which such termination shall take effect.
C. The Consulting Term may further be terminated, at the
option of the Corporation, upon ten days' prior written notice, for
"cause" (as hereinafter defined).
D. In the event of the Consultant's death during the
Consulting Term, the Consulting Term shall terminate immediately
and the Consultant's legal representatives shall be entitled to
receive his retainer at the rate provided in Section III up to the
last day of the month in which his death shall occur.
E. The Consultant shall have the right, upon at least 60
days' written notice delivered to the Corporation, to terminate the
Consulting Term.
SECTION III
-----------
A. The Corporation hereby agrees to pay, and the Consultant
hereby agrees to accept, as full compensation for the services to
be rendered by him under Section I hereunder, an annual fee of
$150,000, payable in substantially equal monthly installments in
arrears, or in such other installments upon which the parties
hereto shall mutually agree.
B. The Corporation shall reimburse the Consultant for
reasonable and necessary expenses incurred by him on behalf of the
Corporation in the performance of his duties hereunder during the
Consulting Term, provided that such expenses are adequately
documented in accordance with the Corporation's then customary
policies. The Consultant shall receive the use of the automobile
heretofore provided to him by IMA, for his activities hereunder
(and with a reasonably similar replacement vehicle at the
expiration of the lease therefor). During the Consulting Term, the
Corporation shall furnish to the Consultant office facilities
appropriate to his performance hereunder and secretarial assistance
in connection therewith.
SECTION IV
----------
A. The Consultant shall hold in absolute secrecy and treat
confidentially all Confidential Material (as hereinafter defined),
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and not disclose, reproduce, publish, distribute or by any other
means disseminate, in whole or in part, any Confidential Material,
except as shall be authorized by the Disclosing Party (as
hereinafter defined). The Consultant shall not in any manner use
for his benefit or for the benefit of others any Confidential
Material, except as shall be authorized by the Disclosing Party.
B. Subsequent to the date hereof and for a period
(hereinafter referred to as the "Covenant Term") expiring at the
later of (x) two years after the termination or expiration of all
service rendered by the Consultant to the Corporation or any of its
Affiliates (as hereinafter defined), whether as employee,
consultant, director or otherwise, unless any such termination
shall be effectuated by the Corporation or any Affiliate without
"cause" (as hereinafter defined), or (y) five years after the date
of this Agreement, the Consultant shall not engage, directly or
indirectly, whether as principal, agent, distributor,
representative, stockholder or otherwise, in any activities which
are in any way competitive with the business conducted by the
Corporation or any Affiliate thereof, within any territory in which
the Corporation or any Affiliate, directly or indirectly, conducts
such business.
C. The Consultant hereby assigns to the Corporation the
entire right, title and interest in and to any and all inventions,
trade secrets, improvements, plans and specifications: (i) which he
alone, or in conjunction with others, may make, conceive or
develop; and (ii) which relate to or derive from any subject matter
or problem with respect to which the Consultant shall have become
informed by reason of his relations with the Corporation or any
Affiliate, or to any product or process involved in the business of
the Corporation or any Affiliate.
D. The Consultant further agrees that he will promptly
disclose fully to the Corporation the aforesaid inventions, trade
secrets, improvements, plans and specifications and will at any
time render to the Corporation such reasonable cooperation and
assistance (excluding financial assistance) as the Corporation may
deem to be advisable in order to obtain copyrights or patents, as
the case may be, on or otherwise perfect or defend the
Corporation's rights in each such invention, trade secret,
improvement, plan or specification, including, but not limited to,
the execution of any and all applications for copyrights or
patents, assignments of copyrights or patents and other instruments
in writing which the Corporation, its officers or attorneys may
reasonably deem necessary or desirable, and the aforesaid
obligation shall be binding on the assigns, executors,
administrators and other legal representatives of the Receiving
Party.
E. For purposes of this Agreement: (i) "Confidential
Material" shall mean any and all information furnished to the
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Consultant, whether before or after the date hereof, by the
Corporation, any Affiliate, or any of their respective licensees,
or any of their respective employees, directors, agents or
representatives (each herein referred to as a "Disclosing Party"),
or acquired, received, developed or learned by the Consultant in
the course of his relations with any Disclosing Party or relating
to the business and affairs of the Corporation or any Affiliate, or
any licensee thereof, or to any product or process involved in the
business of the Corporation or any Affiliate, or the proprietary
plans, policies, business or affairs of any Disclosing Party;
provided, however, that the term "Confidential Material" shall not
include information which:
(x) becomes or has become generally available to
the public other than as a result of a disclosure by the
Consultant;
(y) was available to the Consultant on a non-
confidential basis prior to its disclosure to the
Consultant by the Disclosing Party; or
(z) becomes available to the Consultant on a non-
confidential basis from a source other than the
Disclosing Party, provided that such source is not bound
by a confidentiality agreement with the Disclosing Party;
(ii) "Affiliate" shall mean any person or entity directly or
indirectly controlled by the Corporation; and (iii) "cause" shall
mean the Consultant's neglect of duties, breach of his consulting
or other relationship with the Corporation, conflict of interest,
or refusal to follow directives of the Corporation, in each case
(if such matter is susceptible of correction) if not corrected
within ten days after written notice thereof by the Corporation to
the Consultant (or if such correction may not reasonably be
completed within such period, if diligent efforts to effectuate
such correction shall not have been initiated within such period
and continued through and completed within 30 days of such notice);
or conviction of a crime.
F. In view of the irreparable harm and damage which would be
incurred by the Corporation or any Affiliate, or any other
Disclosing Party, in the event of any violation by the Consultant
of any of the provisions hereof, the Consultant hereby consents and
agrees that, if he violates any such provisions, the Corporation or
any Affiliate, or (with respect to such secrecy or non-use
obligations) such other Disclosing Party, shall be entitled to an
injunction or similar equitable relief to be issued by any court of
competent jurisdiction restraining the undersigned from committing
or continuing any such violation.
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SECTION V
---------
The Consultant hereby represents, warrants and covenants that:
A. He is duly authorized to execute and deliver this
Agreement and to perform his covenants and agreements hereunder.
When executed and delivered by him, this Agreement shall constitute
his valid and legally binding agreement enforceable against him in
accordance with the terms hereof, except as may be limited by
bankruptcy, insolvency or other laws affecting generally the
enforceability of creditors' rights and by limitations on the
availability of equitable remedies.
B. Neither the execution and delivery of this Agreement, nor
the consummation of the transactions contemplated herein, will
violate any law, rule, regulation, writ, judgment, injunction,
decree, determination, award, or order of any court or governmental
agency or instrumentality, domestic or foreign, or conflict with or
result in any breach of any of the terms of or constitute a default
under or result in the termination or for the creation of any
mortgage, deed of trust, pledge, lien security interest or other
charge or encumbrance of any nature pursuant to the terms of any
contract or agreement to which he is a party or by which he or any
of his assets or properties is bound.
SECTION VI
----------
A. All notices, requests, instructions or documents
hereunder shall be in writing and delivered personally or sent by
registered or express mail, postage prepaid, as follows:
(i) if to the Consultant:
-----------------------------
-----------------------------
-----------------------------
with a copy to:
Thomas Litz, Esq.
Thompson & Mitchell
One Mercantile Center
St. Louis, Missouri 63101
(ii) to the Corporation:
1770 Kirby Parkway
Suite 300
Memphis, Tennessee 38138
5
with a copy to:
Howard Kailes, Esq.
Krugman, Chapman & Grimshaw
Park 80 West - Plaza Two
Saddle Brook, New Jersey 07663
or to such other address as either party may designate by written
notice to the other party. If delivered personally, the date on
which such notice, request, instruction or document is delivered
shall be the date on which such delivery is made, and if delivered
by mail, the date on which deposited in the mail. Each notice,
request, instruction or document shall bear the date on which it is
delivered.
B. This Agreement is personal as to the Consultant and shall
not be assignable by the Consultant. Subject to the foregoing, all
of the terms and provisions of this Agreement shall be binding upon
and shall inure to the benefit of and be enforceable by the parties
hereto and their respective successors and assigns and legal
representatives and (with respect to any secrecy or non-use
obligations) any other Disclosing Party.
C. This Agreement constitutes the complete understanding
between the parties hereto with respect to the transactions
contemplated herein, no statement, representation, warranty or
covenant has been made by either party hereto except as expressly
set forth herein and therein, and no modification hereof shall be
effective unless in writing and signed by a party against which it
is sought to be enforced.
D. This Agreement shall be governed by and construed in
accordance with the laws of the State of Tennessee applicable in
the case of agreements made and to be performed entirely within
such State.
E. It is the intention of the Consultant and the Corporation
that the provisions of this Agreement shall be enforced to the
fullest extent permissible under the laws and public policies of
each jurisdiction in which enforcement is sought, but that the
unenforceability of any provisions of this Agreement shall not
render unenforceable, or impair, the remainder of this Agreement.
Accordingly, if any provision hereof is determined to be invalid or
unenforceable, either in whole or in part, this Agreement shall be
deemed amended to delete or modify, as necessary, the offending
provision and to alter the remainder of this Agreement in order to
render it valid and enforceable.
F. This Agreement may be executed in counterparts, each of
which shall be deemed an original, but all of which, taken
together, shall constitute one and the same instrument.
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IN WITNESS WHEREOF, this Agreement has been duly executed by
the parties hereto as of the date first above written.
INSITUFORM TECHNOLOGIES, INC.
By---------------------------------
CONSULTANT:
-----------------------------------
Jerome Kalishman
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Dates Referenced Herein and Documents Incorporated by Reference
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