EXHIBIT 99.1
AGREEMENT, dated as of July 25, 1997, by and among
Insituform Technologies, Inc., a Delaware corporation (the
"Company"); Xxxxxx Xxxxxxxxx ("Xx. Xxxxxxxxx"), Xxxxx X.
Xxxxxxxxx ("Xxx. Xxxxxxxxx"), The Xxxxxx and Xxxxx Xxxxxxxxx
Family Fund (the "Fund"), Xxxxxx X. Xxxxxxxxx ("Xx. Xxxxxxxxx"),
and Xanadu Investments, L.P. ("Xanadu"; Xx. Xxxxxxxxx, Xxx.
Xxxxxxxxx, the Fund, Xx. Xxxxxxxxx and Xanadu may be collectively
referred to herein as the "Dissident Group"); Xxxx X. Xxxxxxxxx
(Mr. "Xxxxxxxxx"); Xxxxxxx X. Xxxxxxxxxx ("Xx. Xxxxxxxxxx");
Xxxxxxx X. Xxxxxx ("Xx. Xxxxxx"); Xxxxx Xxxxxxxx ("Xx.
Xxxxxxxx"); Xxxxxxx Xxxxxx ("Xx. Xxxxxx"); and Xxxxxxx X. Xxxxx,
Xx. ("Xx. Xxxxx"; the Company, Xx. Xxxxxxxxx, Xxx. Xxxxxxxxx, the
Fund, Xx. Xxxxxxxxx, Xanadu, Xx. Xxxxxxxxx, Xx. Xxxxxxxxxx, Xx.
Xxxxxx, Xx. Xxxxxxxx, Xx. Xxxxxx and Xx. Xxxxx may be
collectively referred to herein as the "parties" and may be
individually referred to herein as a "party").
WHEREAS, the Company and the Dissident Group wish to
end the pending proxy contest between them and to change the
composition of the Board of Directors of the Company (the "Board
of Directors"); and
WHEREAS, in furtherance of the foregoing, and prior to
the election of directors at the 1997 Annual Meeting (as defined
below), the Company and the Dissident Group wish to eliminate the
classification of the Board of Directors and the arrangements for
electing "groups" of directors referred to in Section 7.3 of the
Agreement and Plan of Merger dated as of May 23, 1995 among the
Company, ITI Acquisition Corp., and Insituform Mid-America, Inc.
(the "Merger Agreement");
NOW, THEREFORE, in consideration of the mutual
covenants and agreements set forth herein the parties hereto
agree as follows:
Section 1. Director Resignations. Prior to or
contemporaneously with the execution and delivery hereof by the
parties hereto, the Company shall have received the irrevocable
resignations of Xxxxxx Xxxx, Xxxxx Xxxxxxxx, Xxxxx X. Xxxxxxx,
Xxxxxxx Xxxxxx and Xxxxx X. Xxxxxxx from the Board of Directors,
to be effective no later than the succession to office of the
directors elected at the 1997 Annual Meeting (as hereinafter
defined). Any appointment to the Board of Directors from the
date hereof until the succession to office of the directors
elected at the 1997 Annual Meeting shall be subject to such
director's contemporaneous execution and delivery to the Company
of his irrevocable resignation effective as aforesaid.
Section 2. Special Meeting of the Board of
Directors. As soon as possible after the date hereof, the
President of the Company shall call a meeting of the Board of
Directors (the "Special Board Meeting") at which the following
items shall be submitted for approval:
(a) the amendment of Article SIXTH of the
Company's Certificate of Incorporation to eliminate
classification of the Board of Directors, and submission
of the proposed amendment for approval to the holders (the
"Stockholders") of the shares of class A common stock, par
value $.01 per share ("Common Stock"), of the Company, at
the Company's 1997 Annual Meeting of Stockholders to be
held on August 21, 1997, or such later date as shall be
determined by the Company solely in order to facilitate
effectuation of the provisions of Section 2(f) hereof (the
"1997 Annual Meeting"), such amendment to be subject to
and effective upon completion of all Required Actions (as
hereinafter defined), other than any Required Action
described under this paragraph (a) (for purposes hereof,
"Required Actions" shall mean, collectively: (w) the
approval by the Stockholders at the 1997 Annual Meeting of
the matters described in Sections 2(a), 2(c) and, if
required, 2(b) hereof; (x) the election at the 1997 Annual
Meeting, subject to the completion of all Required
Actions, of the New Directors (as hereinafter defined);
(y) the approval by the Board of Directors at the Special
Board Meeting of the matters described in Sections 2(a),
(c), (d), (e) and (g) hereof; and (z) compliance with
Section 4(b) hereof);
(b) the amendment of Article III, Section 2 of
the Company's By-Laws to reduce the size of the Board of
Directors from thirteen directors to eight directors,
provided that the size of the Board of Directors shall
increase automatically to nine directors upon the election
or appointment of the Additional Nominee (as hereinafter
defined) to the Board of Directors and, if such amendment
is not approved by at least 80% of the members of the
Board of Directors, submission of the proposed amendment
of the Company's By-Laws for approval by Stockholders
holding a majority of the shares of Common Stock at the
1997 Annual Meeting, such amendment to be subject to and
effective upon completion of all Required Actions, other
than any Required Action described under this paragraph
(b);
(c) the cancellation of the arrangements set
forth in Section 7.3 of the Merger Agreement, and the
amendment of Article SIXTH of the Company's Certificate of
Incorporation to provide that, subsequent to the
succession to office following the 1997 Annual Meeting of
the New Directors, vacancies in the Board of Directors
will be filled as set forth in this Agreement, such
cancellation and amendment to be subject to and effective
upon completion of all Required Actions, other than any
Required Action described under this paragraph (c);
(d) the amendment of Article III of the
Company's By-Laws to add a new Section 14 to be entitled
"NOTICE AND APPROVAL OF CERTAIN ACTIONS," which would
provide that, notwithstanding any other provision of the
Company's By-Laws (and except for the implementation of
Sections 2(a), (b), (c) and (e) and Section 6 hereof):
(i) in the event that any director proposes to bring
before any regular or special meeting of the Company's
Board of Directors any proposal relating to any amendment
of the Company's Certificate of Incorporation or By-Laws
or this Agreement, or any change in the structure,
composition (other than such director's resignation) or
governance of the Board of Directors (any such action
shall be referred to herein as a "Special Action"), such
director must provide written notice thereof (including a
reasonably detailed description of such proposal) to each
member of the Board of Directors at least seven days prior
to the date of the directors' meeting at which the Special
Action is to be proposed; and (ii) the taking of any
Special Action by the Board of Directors must be approved
by a majority of all directors then serving; provided,
however, that no Special Action which would have any
effect prior to the 1999 Annual Meeting (as hereinafter
defined) may be taken if such Special Action would
conflict with, have the effect of modifying or otherwise
frustrating any provision of this Agreement, including,
without limitation, any amendment to Article SIXTH of the
Company's Certificate of Incorporation or Article III
Section 2 of the Company's By-Laws, as such provisions
will be in effect pursuant to this Agreement following the
1997 Annual Meeting;
(e) the amendment of Article IV Section 4B of
the Company's By-Laws to provide that, notwithstanding any
other provision of the Company's By-Laws, the Vice
Chairman of the Board, acting in any capacity, shall not
have the power to call any special meeting of
Stockholders;
(f) (i) the approval at the 1997 Annual Meeting
of new nominees for election to the Board of Directors
(the "New Nominees"), which New Nominees will consist of
Xx. Xxxxxxxxx, Xx. Xxxxxxxxx, Xx. Xxxxxxxxxx, Xx. Xxxxxx,
Xx. Xxxxxxxxx, Xx. Xxxxxxxx, Xx. Xxxxx and Xx. Xxxxxx,
each of whom will serve for an initial term of one year
and until such time as his successor has been duly elected
and qualified, and the submission of such nominees at the
1997 Annual Meeting with the recommendation of the Board
of Directors for election as directors by the
Stockholders, such election and succession to office to be
subject to and effective upon the completion of all
Required Actions;
provided, however, that in the event that any of
the New Nominees is unable at the 1997 Annual Meeting
to stand for election for any reason, his replacement
shall be designated as follows: (i) Xx. Xxxxxxxxx
shall have the right to designate a replacement for
Xx. Xxxxxxxxx and Xx. Xxxxxxxxx shall have the right
to designate a replacement for Xx. Xxxxxxxxx,
(ii) Xx. Xxxxx shall have the right to designate a
replacement for Xx. Xxxxxx and Xx. Xxxxxx shall have
the right to designate a replacement for Xx. Xxxxx,
(iii) Xx. Xxxxxxxxx shall have the right to designate
a replacement for Xx. Xxxxxxxx and Xx. Xxxxxxxx shall
have the right to designate a replacement for Xx.
Xxxxxxxxx, (iv) the Committee (as hereinafter
defined) shall have the right to designate a
replacement for Xx. Xxxxxxxxxx (except that in the
event that the Committee does not select a
replacement for Xx. Xxxxxxxxxx within ten business
days after notice that he is unable to stand for
election, his replacement shall be selected by the
Independent Nominator (as hereinafter defined), who
shall be instructed to select a designee who meets
the criteria set forth in clauses (i) and (ii) of
Section 6 of this Agreement) and (v) the Board of
Directors of the Company shall have the right to
designate a replacement for Xx. Xxxxxx; and
provided, further, that Xx. Xxxxx (or in the
event of his death, incompetence or resignation from
the Board of Directors, Xx. Xxxxxx, the latter with
full powers to designate his successor from the then
members of the Board in the event of his death,
incompetence or resignation from the Board of
Directors) shall also have the right to select one
additional nominee (the "Additional Nominee"),
subject to the approval of Xx. Xxxxxxxxx (or in the
event of his death, incompetence or resignation from
the Board of Directors, Xx. Xxxxxxxxx, the latter
with full powers to designate his successor from the
then members of the Board in the event of his death,
incompetence or resignation from the Board of
Directors); except that (1) such approval may not be
"unreasonably withheld" and (2) if such approval is
withheld, the grounds therefore must be stated in
writing by Xx. Xxxxxxxxx in reasonable detail (an
approval under this Section 2(f) shall be deemed to
be "unreasonably withheld" if (1) it is delayed or
delivered more than five business days after Xx.
Xxxxxxxxx is notified of the proposed Additional
Nominee and receives biographical information
regarding the proposed Additional Nominee or (2) such
approval is withheld for any reason other than the
proposed Additional Nominee (x) demonstrably having a
material financial or a close personal or familial
relationship with another director or affiliate of a
director, (y) not being qualified to serve as a
director or (z) having refused to execute a
counterpart of this Agreement as contemplated by
Section 9(m) hereof), and if Xx. Xxxxx deems that Xx.
Xxxxxxxxx'x approval of any proposed Additional
Nominee has been unreasonably withheld upon the
grounds referred to in clause (y) immediately
preceding, the matter shall forthwith be referred to
arbitration by the Independent Nominator (as
hereinafter defined) whose decision as to whether the
proposed Additional Nominee is qualified to serve as
a director as aforesaid shall be dispositive and
binding; and
(ii) If such Additional Nominee has been approved, or
such approval has been unreasonably withheld, as provided
in Section 2(f)(i) hereof (and, if approval has been
withheld upon the grounds referred to in clause (y)
immediately preceding, such approval has been determined
by the Independent Nominator to have been unreasonably
withheld) prior to the date of the 1997 Annual Meeting,
the Additional Nominee shall be recommended by the Company
for election at the 1997 Annual Meeting, and the 1997
Annual Meeting may be adjourned by the Company, if
necessary, for a reasonable period to prepare revised
proxy materials which would include information with
respect to the Additional Nominee (the persons to be
presented to the Stockholders at the 1997 Annual Meeting
in accordance with this Section 2(f) shall be collectively
referred to herein as the "New Directors"). If the
Additional Nominee has not been presented to the
Stockholders for election as a director at the 1997 Annual
Meeting, Xx. Xxxxx shall have the right thereafter to
select the Additional Nominee during a period ending two
months after the date hereof and (x) if such selection is
approved, or such approval is unreasonably withheld, as
provided in Section 2(f)(i) hereof (and, if approval is
withheld upon the grounds referred to in clause (y) of
Section 2(f)(i) hereof, such approval has been determined
by the Independent Nominator to have been unreasonably
withheld), the Additional Nominee shall be appointed to
the Board of Directors promptly thereafter and shall
thereafter be deemed a New Director and (y) if such
selection (or any selection pursuant to this clause (y))
is not approved as aforesaid, Xx. Xxxxx shall be entitled
to an additional period expiring two months after the date
on which such non-approval has been finally determined to
select another proposed Additional Nominee in accordance
with this Section 2(f); provided, however, that in the
event Xx. Xxxxx fails to select a proposed Additional
Nominee within two months after the date hereof or, if
applicable, within any extension of such period: (1) the
Additional Nominee shall be selected by the Committee (as
hereinafter defined) from a list of three candidates
provided by the Independent Nominator (as defined below)
each of whom (i) shall have appropriate qualifications to
serve on the Company's Board of Directors and (ii) to whom
none of the criteria set forth in clauses (x)-(y) of the
last parenthetical phrase of Section 2(f)(i) hereof would
apply; (2) in the event that both members of the Committee
are unable to select a nominee from the list provided by
the Independent Nominator within ten business days after
receipt of such list, the members of the Committee shall
each eliminate one candidate from the list; and (3) the
remaining candidate shall then become the Additional
Nominee (and if any Additional Nominee is determined in
accordance with the foregoing provisions of this Section
2(f) and is subsequently unable to serve, a substitute
Additional Nominee shall be determined pursuant to such
provisions); and
(g) the amendment of the Agreement dated
October 25, 1995, as previously amended November 18, 1996,
between the Company and Xx. Xxxxxxxxx ("the Vice
Chairmanship Agreement") as follows:
(i) the reference under Section IIA of the Vice
Chairmanship Agreement to "December 9, 1998" shall be
extended for an additional year to read "December 9, 1999"
(such extension of the Term, as defined under the Vice
Chairmanship Agreement, shall be referred to herein as
the "Extension Period");
(ii) no compensation pursuant to Section IIIA of the
Vice Chairmanship Agreement shall be paid to Xx. Xxxxxxxxx
during the Extension Period; and
(iii) all other terms of the Vice Chairmanship
Agreement shall continue to apply during the Extension
Period, including, but not limited to, the continued
provision to Xx. Xxxxxxxxx of (x) office arrangements and
secretarial services at the Company's head offices which
are equivalent to those presently being provided to him
under Section IIIB of the Vice Chairmanship Agreement and
(y) health benefits and the use of an automobile as
provided in such Section IIIB;
; and, subject to the applicable approvals thereof hereinabove
set forth, the parties hereby agree to the implementation of
the foregoing provisions. Xx. Xxxxxxxxx and Xx. Xxxxxxxxx
shall have the right to review the forms of the proposed
amendments to the Company's Certificate of Incorporation and
By-Laws described in Sections 2(a) - (e) hereof, and to the
Vice Chairmanship Agreement described in Section 2(g) hereof,
prior to the submission of such amendments for approval by the
Board of Directors of the Company and the Company shall give
due consideration to any modifications to such proposed forms
reasonably requested by Xx. Xxxxxxxxx and Xx. Xxxxxxxxx.
Section 3. Revised Proxy Materials. The Company
agrees that, as promptly as practicable after the date of the
Special Board Meeting, it shall prepare and file with the
Securities and Exchange Commission (the "SEC") revised proxy
materials pursuant to which the Board of Directors will:
(a) propose and recommend for approval of the Stockholders the
amendments to the Company's Certificate of Incorporation
described in Sections 2(a) and (c) hereof, and, if required to
be submitted to them hereunder, the amendment to the Company's
By-Laws described in Section 2(b) hereof, and (b) nominate and
recommend the New Directors for election to the Board of
Directors, such election, and their succession to office, to be
subject to and effective upon the completion of the Required
Actions as provided herein. Each party hereto will cooperate
with and assist the Company in the preparation of the revised
proxy materials described in this Section 3. The Company
agrees that Xx. Xxxxxxxxx and Xx. Xxxxxxxxx shall have the
right to review and reasonably approve the revised proxy
materials prior to the initial filing thereof with the SEC.
The Company shall have the right to postpone the 1997 Annual
Meeting for such reasonable period of time as may be necessary
to permit clearance of revised proxy materials with the SEC
and/or to permit adequate opportunity for the timely mailing of
such revised proxy materials to the Stockholders.
Section 4. 1997 Annual Meeting of Stockholders.
(a) Each party to this Agreement (other than the Company) (i)
shall cause all shares of Common Stock beneficially owned
(within the meaning of Regulation 13D and Rules 13d-3 and 13d-5
under the Securities Exchange Act of 1934 (the "Exchange Act"))
by such party to be voted at the 1997 Annual Meeting in favor
of (x) the amendments to the Company's Certificate of
Incorporation described in Section 2(a) and (c) hereof and, if
required to be submitted to the Stockholders hereunder, the
amendment to Company's By-Laws described in Section 2(b) of
this Agreement, and (y) the election as aforesaid of the New
Directors to the Board of Directors and (ii) shall not bring
any business before the 1997 Annual Meeting except as expressly
contemplated hereby.
(b) If all Required Actions have been completed
(other than the Required Action referred to in this Section
4(b)), as promptly as practicable thereafter the Company shall
duly file with the Secretary of State of Delaware a Certificate
of Amendment to its Certificate of Incorporation setting forth
the amendments that are referred to in Sections 2(a) and 2(c)
hereof.
Section 5. Termination of Proxy Contest. The
members of the Dissident Group (a) shall immediately terminate
all activities with respect to their solicitation of proxies in
connection with the 1997 Annual Meeting or any adjournment
thereof, (b) shall not, directly or indirectly solicit any
proxies or participate in any "solicitation" of any "proxy" (as
such terms are defined in Rule 14a-1 under the Exchange Act)
with respect to matters to be presented at the 1997 Annual
Meeting and shall not become a "participant" (as such term is
used in Rule 14a-11 under the Exchange Act) in any election
contest relating to the 1997 Annual Meeting, (c) shall promptly
terminate all agreements and understandings supporting Xx.
Xxxxxxxxx'x inclusion in, and shall promptly remove Xx.
Xxxxxxxxx from, the "group" referred to in the amendment to the
Schedule 13D dated as of June 11, 1997 filed by members of the
Dissident Group (the "Dissident 13D Group"; the Dissident Group
after compliance with this clause (c) being referred to as the
"Xxxxxxxxx Group"), (d) shall promptly file an amendment to
such Schedule 13D, and to any and all other statements filed by
any member of the Dissident 13D Group pursuant to Section 13(d)
of the Exchange Act, to reflect the termination of the proxy
contest and the other provisions of this Agreement (including
eliminating references to any plan or proposal referred to in
paragraph (d) of Item 4 of Schedule 13D under the Exchange
Act), and (e) shall not take any other actions inconsistent
with the matters contemplated hereby. The Company shall bear
the reasonable out-of-pocket costs and expenses, not to exceed
$150,000, of the Dissident 13D Group incurred in connection
with their activities prior to the date hereof with respect to
their solicitation of proxies in connection with the 1997
Annual Meeting, which the members thereof currently estimate at
$125,000. Such amounts shall be paid by the Company within
five business days after receipt of appropriate evidence of
such costs and expenses.
Section 6. Election of Directors After 1997
Annual Meeting. If during the period commencing with the
succession to office of the New Directors following the 1997
Annual Meeting and ending immediately prior to the Company's
1999 Annual Meeting of Stockholders (the "1999 Annual Meeting")
at which directors are elected, any director then in office
resigns or is unable to serve for any reason, such vacancy
shall be filled only with a designee chosen by both members of
a Nominating Committee of the Board of Directors (the
"Committee") consisting of Xx. Xxxxx (or, in the event of his
death, incompetence or resignation from the Board of Directors,
Xx. Xxxxxx, the latter with full power to designate his
successor in the event of his death, incompetence or
resignation from the Board of Directors) and Xx. Xxxxxxxxx (or,
in the event of his death, incompetence or resignation from the
Board of Directors, Xx. Xxxxxxxxx, the latter with full power
to designate his successor in the event of his death,
incompetence or resignation from the Board of Directors),
subject to the confirmation of the Board of Directors that such
person possesses no characteristics that would disqualify him
under applicable law from serving as a director, and thereafter
the Company shall nominate and recommend such designee for
election to the Board of Directors; provided, however, that in
the event that Xx. Xxxxx and Xx. Xxxxxxxxx (or their respective
successors, if applicable) are unable to agree upon a designee
to fill a vacancy on the Board of Directors within 30 days
after such vacancy has been created, the matter shall be
referred to Directorship, 0 Xxxxx Xxxxx Xxxxx, Xxxxxxxxx,
Xxxxxxxxxxx 00000 (the "Independent Nominator"), who shall be
instructed to provide the Nominating Committee with a list of
three candidates (i) who have appropriate qualifications to
serve on the Company's Board of Directors and (ii) to whom none
of the criteria set forth in clauses (x) - (y) of the last
parenthetical phrase of Section 2(f)(i) hereof would apply. In
the event that both members of the Committee are unable to
select a designee from the list provided by the Independent
Nominator within five business days after receipt of such list,
the members of the Committee shall each eliminate one candidate
from the list and the remaining candidate shall then become the
designee. The fees, if any, of the Independent Nominator shall
be paid by the Company. At the Company's 1998 Annual Meeting
of Stockholders (the "1998 Annual Meeting"), the Company will
nominate and recommend for election as directors of the Company
the New Directors then in office and any director chosen
pursuant to the foregoing provisions of this Section 6 (such
persons nominated by the Company shall be referred to herein as
the "Company Nominees") and during the period commencing with
the succession to office of the New Directors following the
1997 Annual Meeting and ending with the 1999 Annual Meeting,
the Company will not nominate or recommend for election as a
director any person who is not a Company Nominee.
Section 7. No Proxy Contests or Other Stockholder
Actions. During the period commencing on the date hereof and
ending immediately prior to the 1999 Annual Meeting, each party
to this Agreement (other than the Company):
(a) shall cause all shares of capital stock of the
Company which have the right to vote generally in the
election of directors, including, without limitation,
shares of Common Stock (collectively, "Voting Stock"),
that are beneficially owned (within the meaning of
Regulation 13D and Rules 13d-3 and 13d-5 under the
Exchange Act) by such party (i) to be present, in person
or by proxy, at all meetings of Stockholders so that all
such shares may be counted for the purpose of determining
if a quorum is present at such meetings, (ii) to be voted
as provided in Section 4 and in favor of the election of
the Company Nominees to the Board of Directors at the 1998
Annual Meeting, and (iii) to be voted in favor of persons
nominated and recommended by the Company in any other
election of directors;
(b) shall not directly or indirectly (except through
the Company pursuant to due authorization) solicit any
proxies or consents with respect to Voting Stock or in any
way participate in any "solicitation" of any "proxy" with
respect to shares of Voting Stock (as such terms are
defined in Rule 14a-1 under the Exchange Act) or become a
"participant" in any election contest with respect to the
Company (as such term is used in Rule 14a-11 under the
Exchange Act) or request or induce or attempt to induce
any other person to take any such actions or attempt to
advise, counsel or otherwise influence in any way any
person with respect to the voting of Voting Stock;
provided however that this Section 6(b) shall not apply to
actions taken in advance of the 1999 Annual Meeting with
respect to actions to be taken at the 1999 Annual Meeting,
including, without limitation, the election of directors;
(c) shall not (i) form, join or otherwise
participate in any "group" (within the meaning of Section
13(d)(3) of the Exchange Act or Rule 13d-5 thereunder)
with respect to any Voting Stock (a "13D Group"), (ii)
otherwise act in concert with any other person for the
purpose of holding or voting Voting Stock, or (iii) file
any amendment to any Schedule 13D that relates to a plan
or proposal referred to in paragraphs (d) or (g) of Item 4
of Schedule 13D or that contains any statement that is in
any way inconsistent with the provisions of the Agreement;
provided that this clause (c) shall not apply to any
arrangements that are reflected in the Company's proxy
statement dated June 6, 1997, without reference to any
supplement or amendment thereto (the "1997 Proxy
Statement") or to any 13D Group formed for the purposes of
conducting a solicitation or otherwise taking action with
respect to actions to be taken at the 1999 Annual Meeting,
including, without limitation, the election of directors,
and clause (i) (with respect to participation) and clause
(ii) of this paragraph (c) shall not apply to the
Xxxxxxxxx Group;
(d) shall not deposit any Voting Stock in a voting
trust or subject any Voting Stock to any arrangement or
agreement with respect to the voting of such Voting Stock
or other agreement having similar effect, except that this
clause (d) shall not apply to any arrangements that are
reflected in the 1997 Proxy Statement;
(e) except as expressly contemplated hereby, shall
not make any proposal (including any proposal pursuant to
Rule 14a-8 under the Exchange Act) or bring any business
before any meeting of Stockholders and, other than actions
proposed or taken at any meeting of the Board of
Directors, shall not take or seek to take any action in
the name or on behalf of the Company except pursuant to
the performance of any responsibilities attendant to any
office in the Company held by such party or pursuant to a
resolution adopted by the Board of Directors;
(f) shall not call, request the call, or seek to
call, any special meeting of Stockholders; and
(g) shall not enter into any discussions,
negotiations, arrangements or understandings with any
other person with respect to any of the foregoing matters
referred to in this Section 7;
provided, however, that clauses (b), (c) and (d) and (insofar
as it relates to clauses (b), (c) or (d), clause (g) of this
Section 7), shall not prevent any party hereto from taking any
of the actions referred to in such clauses to the extent (but
solely to the extent) that such actions are taken in response
to any "Extraordinary Proposal" (as hereinafter defined) that
is set forth in any preliminary or definitive proxy statement
filed by the Company with the SEC; and provided further that,
notwithstanding the first three lines of this Section 7, if any
directors other than the Company Nominees are elected at the
1998 Annual Meeting as the result, directly or indirectly, of a
breach of this Agreement or any failure to vote in favor of
matters specified herein, by any party or parties hereto, the
obligations of such breaching or non-voting party or parties,
and its affiliates (as defined in Rule 12b-2 under the Exchange
Act), under this Section 7 shall not terminate at the time
specified above but shall terminate on December 31, 1999. For
purposes hereof, an "Extraordinary Proposal" shall mean any
proposal of the Company other than a proposal regarding any of
the matters referred to in clauses (1) - (4) of Rule 14a-6(a)
under the Exchange Act, as in effect on the date of this
Agreement, and other than the matters to be voted upon pursuant
to Section 4 hereof.
Section 8. Termination of the Agreement. In the
event that either (i) the Stockholders fail to approve the
amendments to the Company's Certificate of Incorporation
described in Section 2(a) and (c) hereof and, if required to be
submitted to them hereunder, the amendment to Company's By-Laws
described in Section 2(b) hereof, at the 1997 Annual Meeting,
or (ii) the Board of Directors fails to approve the amendments
to the Company's Certificate of Incorporation described in
Sections 2 (a) and (c) hereof or the amendments to the
Company's By-Laws as described in Section 2(d) and (e) hereof
or fails to approve the New Nominees or the Additional Nominee
as contemplated hereunder or fails to approve the matter
described in Section 2(g) hereof, this Agreement, and all
obligations of the parties hereunder, shall automatically
terminate and the 1997 Annual Meeting shall be adjourned or
postponed and reconvened on or rescheduled to October 21, 1997;
provided that, if any such non-approval by the Stockholders or
the Board of Directors is the result directly or indirectly of
a breach of this Agreement, or any failure to vote in favor in
the specified matters, by any party or parties hereto, the
obligations of such breaching or non-voting party or parties,
and its affiliates (defined as aforesaid), hereunder shall not
terminate as provided above in this Section 8 but shall
terminate on December 31, 1999, and the 1997 Annual Meeting
shall be adjourned and reconvened on such date as shall be
determined by the Board of Directors.
Section 9. Miscellaneous.
(a) All notices, requests or instruction hereunder
shall be in writing and delivered personally or sent by
registered or certified mail, postage prepaid or by telecopy
(or like transmission), as follows:
(1) if to the Company:
000 Xxxxxx 00 Xxxx Xxxxx
Xxxxxxxxxxxx, XX 00000
Attention: Vice President - General
Counsel
Fax: (000) 000-0000
with a copy to:
Xxxxxx Xxxxxx, Esq.
Krugman Xxxxxxxx & Xxxxxxxx LLP
Park 00 Xxxx - Xxxxx Xxx
Xxxxxx Xxxxx, Xxx Xxxxxx 00000
Fax: (000) 000-0000
(2) if to any other party hereto, at its
address set forth in the records of the
Company.
Any of the above addresses may be changed at any time by notice
given as provided above; provided, however, that any such
notice of change of address shall be effective only upon
receipt. All notices and other communications given to any
party hereto in accordance with the provisions hereof shall be
deemed to have been given on the date of receipt, provided that
any notice or other communication that is received other than
during regular business hours of the recipient shall be deemed
to have been given at the opening of business on the next
business day of the recipient.
(b) This Agreement contains the entire agreement
between the parties hereto with respect to the transactions
contemplated hereby and, subject to and effective upon
completion of all Required Actions, supersedes and amends all
prior understandings, arrangements and agreements with respect
to the subject matter hereof, including, without limitation,
Section 7.3 of the Merger Agreement and Section 7.3 of the
Agreement dated as of July 3, 1992, among the Company, INA
Acquisition Corp. and Insituform Group Limited. No modification
hereof shall be effective unless in writing and signed by the
party against which it is sought to be enforced. The parties
hereto may, by written agreement, make any modification or
amendment of this Agreement, but no such modification or
amendment will be effective unless signed by all of the parties
hereto. The captions appearing herein are for the convenience
of the parties only and shall not be construed to affect the
meaning of the provisions of this Agreement.
(c) Each of the parties hereto shall use such
party's reasonable best efforts to take such actions as may be
necessary or reasonably requested by the other parties hereto
to carry out and consummate the transactions contemplated by
this Agreement. No party to this Agreement shall directly or
indirectly (i) challenge the validity or enforceability of any
provision of this Agreement or the matters contemplated hereby
or (ii) commence any lawsuit or other legal proceeding, or take
any other action, that seeks to frustrate the performance of
this Agreement in accordance with its terms.
(d) This Agreement shall be governed by and
construed in accordance with the laws of the State of Delaware
applicable in the case of agreements made and to be performed
entirely within such State.
(e) Each of the parties hereto recognizes that any
breach of the terms of this Agreement may give rise to
irreparable harm for which money damages would not be an
adequate remedy, and accordingly agree that, in addition to
other remedies, any nonbreaching party shall be entitled to an
injunction or injunctions to prevent breaches of the provisions
of this Agreement and to enforce the terms and provisions of
this Agreement by a decree of specific performance in any
action instituted in any court of the United States or any
state hereof having jurisdiction without the necessity of
proving the inadequacy as a remedy of money damages.
(f) This Agreement and all of the provisions hereof
shall be binding upon and inure to the benefit of the parties
hereto and their respective successors, heirs, legal
representatives and permitted assigns, but neither this
Agreement nor any of the rights, interests, or obligations
hereunder may be assigned by any of the parties hereto without
the prior written consent of the other parties and any such
attempted assignment without consent shall be void.
(g) This Agreement is not intended, and shall not be
construed, to confer any rights or remedies hereunder upon any
party other than the parties hereto and those parties
designated as directors pursuant to Section 2(f) or Section 6,
which parties shall be entitled to enforce their rights under
such provisions to which they are entitled to benefits.
(h) Any term or provision of this Agreement that is
invalid or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such invalidity
or unenforceability without rendering invalid or unenforceable
the remaining terms and provisions of this Agreement, or any
such terms in any other jurisdiction. If any provision of this
Agreement is so broad as to be unenforceable, such provision
shall be interpreted to be only so broad as is enforceable.
(i) The Company shall bear the reasonable expenses
of each party hereto in connection with the execution and
delivery of this Agreement and the consummation of the
transactions contemplated hereby.
(j) Each party hereto agrees that, prior to the 1997
Annual Meeting, the Board of Directors shall not take any
action (i) with respect to the grant of any stock options or
other compensation to any director, (ii) that would conflict
with or frustrate any provision of this Agreement or (iii) with
respect to the approval of any merger or business combination
involving a change of control of the Company or any sale of all
or substantially all of the assets of the Company; provided,
however that nothing set forth in this Section 9(j) shall
prohibit the Board of Directors from considering prior to the
1997 Annual Meeting any unsolicited bid involving any merger or
sale of all or substantially all of the assets of the Company
that is not known to any of the parties as of the date hereof.
(k) Xx. Xxxxxxxxx and Xx. Xxxxxxxxx on the one hand,
and the Company, on the other hand hereby agree to release one
another from any and all liabilities, claims and obligations of
any kind arising directly or indirectly from their respective
activities in connection with the pending proxy contest between
the Company and the Dissident Group, the preparation for the
1997 Annual Meeting and the solicitation of proxies therefor,
in each case prior to the date hereof.
(l) 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.
(m) On or prior to the date on which the Additional
Nominee is selected in accordance with Section 2(f) hereof, the
Additional Nominee shall execute a counterpart of this
Agreement, to be held in escrow and either (i) released
therefrom upon approval of the Additional Nominee in accordance
with Section 2(f) hereof or (ii) canceled in the event such
approval is not promptly obtained.
(n) Each party hereto (other than the Company) is
signing this Agreement in his capacity as a Stockholder and not
in his capacity as a director or officer (except on behalf of
the Company), it being understood that this Agreement is not
intended to limit or abridge the fiduciary responsibility of
the directors of the Company.
IN WITNESS WHEREOF, this Agreement has been duly
executed by the parties hereto as of the date first above
written.
INSITUFORM TECHNOLOGIES, INC.
By: /s/ Xxxxxxx X. Xxxxxx
---------------------------
Title: President and Chief
Executive Officer
/s/ Xxxxxxx X. Xxxxx, Xx.
------------------------------
Xxxxxxx X. Xxxxx, Xx.
/s/ Xxxx X. Xxxxxxxxx
------------------------------
Xxxx X. Xxxxxxxxx
/s/ Xxxxxxx Xxxxxx
------------------------------
Xxxxxxx Xxxxxx
/s/ Xxxxx Xxxxxxxx
------------------------------
Xxxxx Xxxxxxxx
/s/ Xxxxxxx X. Xxxxxx
------------------------------
Xxxxxxx X. Xxxxxx
XANADU INVESTMENTS, L.P.
By: The Xxxxxx Xxxxxxxxx Revocable
Trust
By: /s/ Xxxxxx Xxxxxxxxx
---------------------------
Trustee
By: The Xxxxx X. Xxxxxxxxx Revocable
Trust
By: /s/ Xxxxx X. Xxxxxxxxx
---------------------------
Trustee
/s/ Xxxxxx Xxxxxxxxx
------------------------------
Xxxxxx Xxxxxxxxx
/s/ Xxxxx X. Xxxxxxxxx
------------------------------
Xxxxx X. Xxxxxxxxx
The Xxxxxx and Xxxxx Xxxxxxxxx
Family Fund
By: /s/ Xxxxxx Xxxxxxxxx
---------------------------
Xxxxxx Xxxxxxxxx, Trustee
/s/ Xxxxxx X. Xxxxxxxxx
------------------------------
Xxxxxx X. Xxxxxxxxx
/s/ Xxxxxxx X. Xxxxxxxxxx
------------------------------
Xxxxxxx X. Xxxxxxxxxx
