-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, TL5SUOV+IooCcpshC948C7PjAsxQIWBYd/gac8QZVHLw6Krk2N9Oqhtbx+5m+om4 Kt7zitMT1H9dIPigFT0ySQ== 0000922435-95-000044.txt : 19951106 0000922435-95-000044.hdr.sgml : 19951106 ACCESSION NUMBER: 0000922435-95-000044 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 6 FILED AS OF DATE: 19951103 EFFECTIVENESS DATE: 19951122 SROS: NASD FILER: COMPANY DATA: COMPANY CONFORMED NAME: INSITUFORM TECHNOLOGIES INC CENTRAL INDEX KEY: 0000353020 STANDARD INDUSTRIAL CLASSIFICATION: WATER, SEWER, PIPELINE, COMM AND POWER LINE CONSTRUCTION [1623] IRS NUMBER: 133032158 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-8 SEC ACT: 1933 Act SEC FILE NUMBER: 033-63953 FILM NUMBER: 95586981 BUSINESS ADDRESS: STREET 1: 1770 KIRBY PKWY STE 300 CITY: MEMPHIS STATE: TN ZIP: 38118 BUSINESS PHONE: 9017597473 MAIL ADDRESS: STREET 1: 1770 KIRBY PKWY SUITE 300 CITY: MEMPHIS STATE: TN ZIP: 38138 FORMER COMPANY: FORMER CONFORMED NAME: INSITUFORM OF NORTH AMERICA INC/TN/ DATE OF NAME CHANGE: 19930617 S-8 1 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). EX-4.I 2 EXHIBIT 4(i) INSITUFORM MID-AMERICA, INC. STOCK OPTION PLAN (AMENDED AS OF OCTOBER 25, 1995)* 1. PURPOSE OF THE PLAN. ------------------- 1.1 The Insituform Mid-America, Inc. Stock Option Plan (herein called the Plan) of Insituform Technologies, Inc., a Delaware corporation (herein called the "Company") and its subsidiaries is designed and intended (a) to encourage ownership of the Company's common stock by employees of the Company and its subsidiaries, and to provide additional incentive for them to promote the success of the business of the Company, and (b) to be helpful as a further incentive in attracting personnel to enter the employ of the Company and its subsidiaries. It is expected that the added interest of the participating employees under this Plan, and their proprietary attitude toward the Company resulting from their investment in the Company's common stock, will promote the future growth, development and continued success of the Company. 1.2 As used in the Plan, "subsidiaries" of the Company shall include any "subsidiary corporation" as defined in Section 425(f) of the Internal Revenue Code of 1954, as amended. 1.3 As used in the Plan, "employee" shall include officers and shall be an individual who has an "employment relationship" with the Company or one or more of its subsidiaries as defined in Section 1.421-7(h) of the Income Tax Regulations. In addition, for purposes of the Plan the term "employee" shall include a director of the Company who is not otherwise an employee, and such person's tenure as a director shall be treated as his or her term of employment, provided, however, that such persons may not be granted Incentive Stock Options pursuant to the Plan. 2. STOCK SUBJECT TO THE PLAN. ------------------------- One Million (1,000,000) shares of the Class A Common Stock, $.O1 par value, of the Company shall be reserved for issue upon the exercise of options granted under the Plan. Such shares may, as the Board of Directors in its sole discretion from time to time determine, include whole or fractional shares. In the event an option is exercised, the Company may use authorized but unissued shares or shares held in treasury in lieu thereof. If any option granted under the Plan shall expire or terminate for any reason without having been exercised in full, the unpurchased shares subject to such option shall again be available for the purposes of the Plan. - ---------------- * as modified pursuant to Agreement and Plan of Merger dated as of May 23, 1995 among Insituform Technologies, Inc., ITI Acquisition Corp. and Insituform Mid-America, Inc. 3. ADMINISTRATION OF THE PLAN. -------------------------- 3.1 The Plan shall be administered by the Compensation Committee of the Company (herein called the "Committee") consisting of not less than three members of the Board of Directors of the Company, who may also be officers of the Company or any of its subsidiaries. No person while serving as a member of the Committee shall be eligible to receive an option under the Plan, and no person who has ever received an option under the Plan shall be eligible to be a member of the Committee. 3.2 The Committee shall be appointed by the Board of Directors of the Company. The Board of Directors of the Company may, within the limits herein provided, from time to time in its discretion, fix and change the numbers of members of the Committee, remove members of the Committee, appoint members of the Committee in substitution for or in addition to members previously appointed, and fill vacancies however caused in the Committee. 3.3 The Committee shall select one of its members as its chairman, and shall hold its meetings at such times and places as it may determine. A majority of its members shall constitute a quorum, but all action of the Committee shall be taken by a majority of its members. Any action, decision or determination reduced to writing and signed by all the members shall be fully as effective as if it had been done or made by a vote of a majority of the members at a meeting duly called and held. The Committee may appoint a secretary, and shall keep minutes of its meetings and actions, and shall make such rules and regulations for the conduct of the business of the Committee as it deems advisable. The secretary may be, but not need be, an employee of the Company or a subsidiary. Serving as secretary of the Committee shall not disqualify an employee from receiving an option under the Plan provided such person does not participate in the determination of individuals to whom options shall be granted. 3.4 Subject to the express provision of the Plan, the Committee shall have plenary authority, in its sole discretion, to determine the individuals to whom options shall be granted, the number of shares subject to each option, and the time or times at which options shall be granted. Subject to the express provisions of the Plan, the Committee shall also have plenary authority, in its discretion, to construe and interpret the Plan, to make determinations in administration of the Plan, to make, amend and rescind rules and regulations regarding the Plan and its administration, to determine the terms and provisions of the respective stock option agreements (which need not be identical), and to take whatever action is necessary to carry out the purposes of the Plan. The Committee's actions and determinations on matters referred to in this section shall be conclusive on all persons whomsoever. No act or failure to act on the part of the Committee, or on the part of any member thereof, shall result in any liability whatsoever if taken in good faith. 4. TYPE OF OPTION GRANTED BY THE PLAN. ---------------------------------- The Committee shall have authority to grant options which qualify as Incentive Stock Options as defined in Section 422A of the Internal Revenue Code of 1954, as amended and to grant options which do not qualify as Incentive Stock Options provided, however, such non-Incentive Stock Options must be identified as such in the terms of the grant. Paragraphs 5, 6, 7, 9, 10 and 11 shall apply to an option which is not an Incentive Stock Option only to the extent determined by the Committee. 5. ELIGIBILITY TO RECEIVE OPTIONS UNDER THE PLAN. --------------------------------------------- 5.1 Options May be granted under the Plan to all employees of the Company or of any of its subsidiaries. No option may be granted under the Plan to any person who immediately before such option is granted owns stock possessing more than 10% of the total combined voting power of all classes of stock of the Company or of any of its subsidiaries. For the purpose of the preceding sentence, the employee shall be deemed to own stock which is owned by the employee's siblings, spouse, ancestors and lineal descendants. An employee who has been granted an option under the Plan may be granted an additional option or options hereunder at any time, if otherwise eligible under the provisions of the Plan. An option may be granted to an individual upon the condition that such individual will become an employee of the Company or any of its subsidiaries, provided however, that such a conditional option shall be deemed to be granted only on the date such individual becomes an employee. 5.2 In making a determination as to persons to whom options shall be granted under the Plan, and the number of shares to be covered by such options, the Committee shall take into consideration the nature of the services rendered or to be rendered by the employee, the employee's present and potential contributions to the success of the Company, and such other factors as the Committee shall deem relevant in accomplishing the purposes of the Plan. Any and all determinations made by the Committee pursuant to this section shall be binding upon all persons whomsoever, and no employee eligible to receive an option under the Plan shall have any legal right to complain as to any determination which shall be made by the Committee hereunder as to him. 5.3 Nothing contained in the Plan shall be construed to limit the right of the Company to grant options otherwise than under the Plan in connection with (a) the employment of any person, (b) the acquisition of any corporation, firm or association, or the business or assets thereof, including options granted to employees thereof who become employees of the Company or a subsidiary, or (c) other proper corporate purposes. 6. OPTION PRICE. ------------ 6.1 The purchase price of the stock subject to each option granted hereunder shall be equal to at least 100% of the fair market value of the stock at the time of the grant of the option. In no event shall said purchase price per share be less than the par value of such stock subject to the option. 6.2 The Committee shall adopt criteria for the determination of the fair market value of stock subject to any option granted pursuant to this Plan. 7. TERM OF OPTIONS. --------------- 7.1 The term of each option granted pursuant to the Plan shall be not more than ten (10) years from the date of granting thereof. Within such ten year limit, options will be exercisable only at such time or times, subject to the restrictions of paragraphs 10, 11 and 14, and any other restrictions and conditions, as the Committee shall in each instance approve, which need not be uniform for all individuals to whom options are granted. 7.2 Except as provided in paragraphs 10, 11 and 12, no option may be exercised at any time unless the optionee is then an employee of the Company or a subsidiary and has been so employed continuously since the granting of the option. 8. DATE OF GRANT OF OPTION. ----------------------- The grant of an option under the Plan shall take place on or as of the date the Committee grants an employee a particular option; provided, however, that if the resolution or other written determination of the Committee specifies that an option is to be granted as of and at some future date, the date of grant shall be such future date. 9. OPTION AMOUNT. ------------- 9.1 Prior to January 1, 1987, the aggregate fair market value (determined as of the time the option is granted) of the stock for which an employee may be granted Incentive Stock Options in any calendar year (under all plans of the Company and its subsidiaries) shall not exceed $100,000 plus any Unused Limit Carryover as defined in Section 422A of the Internal Revenue Code of 1954, as amended. 9.2 After December 31, 1986, no employee may be granted an Incentive Stock Option that is first exercisable during any calendar year to the extent the aggregate fair market value of the stock subject to all Incentive Stock Options granted to such employee that are first exercisable during such calendar year exceeds $100,000 (such value determined on the date of each respective grant). 10. EXERCISE OF OPTION. ------------------ 10.1 Except as provided in paragraphs 11 and 14 and unless otherwise provided in the terms under which the Committee granted the option, each option shall be exercisable in whole or in part at any time and from time to time during the terms of the option. 10.2 To the extent that the right to purchase shares under an option granted under the Plan is exercisable, the right may be exercised from time to time by written notice to the Company stating the number and identity of shares with respect to which the option is being exercised, accompanied by payment either (i) in cash, (ii) in the discretion of the Committee, by tender to the Company of shares of the common stock of the Company, owned by the optionee and registered in the optionee's name, having a fair market value equal to the cash exercise price of the option being exercised, or (iii) in the discretion of the Committee, by any combination of (i) and (ii) hereof. The fair market value of stock tendered as payment shall be determined according to the criteria for determining fair market value adopted by the Committee or as may be required in order to comply with or to conform to the requirements of any applicable laws or regulations. 10.3 The holder of an option may, instead of exercising an option as provided in paragraph 10.2, request that the Committee authorize the payment to the holder of the difference between the fair market value of part or all of the stock which is the subject of the option and the exercise price of the option, such difference to be determined as of the date the Committee receives the request from the holder. The Committee in its sole discretion may grant such a request from the holder with respect to part or all of the shares of stock as to which the option is then exercisable and, to the extent granted, shall direct the Company to make payment to the holder either in cash or in common stock of the Company or in any combination thereof, provided, however, that any common stock of the Company shall be distributed based upon its fair market value as of the date the Committee received the request from the holder. An option shall be deemed to have been exercised and shall be cancelled to the extent that the Committee grants a request pursuant to this paragraph. 10.4 The proceeds of sale of stock subject to an option shall be added to (a) the capital stock account of the Company to the extent of the par value of the shares and (b) the excess to the account reflecting capital in excess of par. In the case of payments made in shares of common stock of the Company, such shares evidencing payment shall be added to the common stock of the Company, held in its treasury and used for corporate purposes as the Board of Directors shall determine, with appropriate credits to the capital stock accounts of the Company. 10.5 After the exercise of an option, as above provided, the Company shall within a reasonable time deliver to the person exercising the option a certificate or certificates issued in the name of the person who exercised the option and such additional name, or names, if any, as may be requested (subject to the general policy of the Company as to registration of shares), for the appropriate number of shares, without liability of the person exercising the option for any transfer or issue tax, state of Federal, then payable. Each option granted under the Plan shall be subject to the requirement that, if at any time the Board of Directors of the Company shall determine, in its discretion, that the listing, registration or qualification of the shares subject to such option upon any securities exchange or under any state or Federal law, or the consent or approval of any governmental or regulatory body, is necessary or desirable, as a condition of, or in connection with, the granting of such option or the issue or purchase of shares thereunder, no such option may be exercised in whole or in part unless such listing, registration, qualification, consent or approval shall have been effected or obtained free of any conditions not acceptable to the Board of Directors. 10.6 An optionee under an option granted under the Plan shall have no rights as a shareholder with respect to any shares covered by an option except to the extent that one or more certificates for shares shall have been delivered to him upon due exercise of an option as above provided. 10.7 Unless provided otherwise by its express terms, an option granted under the Plan, including the exercise of the right to request payment in lieu of exercise of the option pursuant to paragraph 10.3, shall be nontransferable by the optionee other than by will or the laws of descent and distribution or pursuant to a qualified domestic relations order, as defined in the Internal Revenue Code of 1986, as amended, or in Title I of the Employment Retirement Income Security Act, or the rules thereunder, and shall be exercisable during the optionees lifetime only by the optionee or a transferee permitted pursuant to this paragraph 10.7, unless the optionee or transferee is under legal disability, in which case it may be exercised by the optionee's or transferee's duly appointed legal representative. 11. TERMINATION OF EMPLOYMENT. ------------------------- 11.1 If an optionee under an option granted under the Plan ceases to be an employee of the Company or a subsidiary for any reason other than the death of the employee, all of the optionee's options under the Plan (including options transferred in accordance with paragraph 10.7 thereof) shall expire three months after the optionee ceases to be an employee (or, if the optionee becomes disabled within the meaning of Section 1O5(d)(4) of the Internal Revenue Code, such options shall expire twelve months after the termination of the optionee's employment on account of such disability) as to all shares for which they have not theretofore been exercised, and during such three-month (or twelve- month) period an option shall be exercisable only as to those shares with respect to which it had become exercisable, under the provisions of the particular option, on the date of termination of employment; provided, however, that if the termination of employment is (a) for a cause, (b} voluntary on the part of the employee and without the written consent of the Company, or a subsidiary, or (c) is in violation of any employment contract with the Company or a subsidiary, then all options granted to such person under the Plan (including options transferred in accordance with paragraph 10.7 hereof) shall terminate and expire concurrently with the termination of the optionee's employment and shall not thereafter be exercisable to any extent; provided further however, that no option may be exercised after the expiration date specified for the particular option. 11.2 The transfer of an employee from one corporation to another among the Company and its subsidiaries, leave of absence (as described in Section 1.421-7(h)(2) of the Income Tax Regulations) with the written consent of the Company or a subsidiary, or retirement at or after the normal retirement date defined in the retirement plan of the Company, shall not be a termination of employment for the purposes of the Plan. 12. DEATH OF OPTIONEE. ----------------- If an optionee under an option granted under the Plan dies while an employee of the Company or a subsidiary, or dies within three months after the termination of such employment, the shares which the optionee was entitled to purchase on the date of the optionee's death under an option or options under the Plan may be purchased under the option or options at any time after the optionee's death by the person or persons to whom said rights under the option or options shall have passed (including transferees permitted pursuant to paragraph 10.7 hereof) provided however, that no option may be exercised after the earlier of (a) eighteen (18) months after the original optionee's death or (b) the expiration date specified for the particular option. 13. EFFECT OF MERGER, CHANGE IN CAPITALIZATION, ETC. ------------------------------------------------ 13.1 In the event of any reclassification or increase or decrease in the number of the issued shares of common stock of the Company by reason of the payment of a stock dividend, a split-up or consolidation of shares, a recapitalization, a combination or exchange of shares or any like capital adjustment, then (a) the aggregate number, and the class, or shares reserved under the Plan shall be a though the shares reserved had been outstanding prior to any adjustment as aforesaid, and (b) as to any outstanding unexercised options theretofore granted under the Plan, there shall be a corresponding adjustment as to the class and number of shares covered by each option, and as to the purchase price under each option, to the end that the optionee's proportionate interest shall be maintained as before the occurrence of such event without change in the total purchase price applicable to said option. 13.2 In the event the Company shall approve a plan of reorganization or of merger into or consolidation with any other corporation, and appropriate provision is made for the resulting corporation's assumption of the Plan under terms whereby unexercised portion of each option then outstanding under the Plan shall thereafter apply to such number and kind of securities as would have been issuable by reason of such reorganization, merger or consolidation, to a holder of the number of shares which were subject to the option immediately prior to such reorganization, merger or consolidation, without change in the total purchase price applicable to said option, then such options shall continue under the Plan. 13.3 In the event the Company shall approve a plan of reorganization or of merger into or consolidation with any other corporation, and appropriate provision is not made for the assumption of the Plan by the resulting corporation as above provided in paragraph 13.2, or in the event the Company shall approve a plan of dissolution, liquidation or sale of substantially all of its assets, then in any such event, the unexercised portion of each option then outstanding under the Plan shall terminate as of a date fixed by the Committee and approved by the Board of Directors of the Company upon not less than thirty days written notice to each optionee; provided however, that any such option shall be accelerated and may be exercised in whole or in part before the termination date fixed as aforesaid without regard to any installment provisions thereof; provided further however, that such termination date shall be fixed as a date on or before the effective date of such reorganization, merger, consolidation, dissolution, liquidation or sale. 13.4 In the event the Company shall issue additional capital stock of any class for cash or other consideration, there shall be no adjustment in the number of shares covered by the outstanding options under the Plan, and no adjustment in the purchase price under such options. 14. SUCCESSIVE OPTION GRANTS. ------------------------ Successive option grants may be made to any holder of options under the Plan but each Incentive Stock Option granted under this Plan by its terms shall provide that it may not be exercised by the holder thereof while there is outstanding any Incentive Stock Option as defined in Section 422A of the Internal Revenue Code of 1954, as amended, granted at an earlier date, under this Plan or otherwise, to such holder to purchase shares of the Common Stock of the Company. For the purpose of this paragraph, an Incentive Stock Option shall be deemed to be outstanding until such option is exercised in full or expires by reason of lapse of time. 15. TERMINATION AND AMENDMENT OF THE PLAN. ------------------------------------- 15.1 This Plan shall terminate on November 30, 1997, and no option shall be granted hereunder after said date, but such termination shall not affect any option theretofore granted. The Board of Directors of the Company may suspend, discontinue or terminate the Plan at any time, and may from time to time make such changes in and additions to the Plan as the Board of Directors shall deem advisable; provided, however, that the Board of Directors may not, without approval by the shareholders of the Company, change (a) the maximum number of shares for which options may be granted under the Plan, (b) the minimum option price, (c) the maximum periods during which options may be granted or exercised, or (d) the provisions relating to the eligibility of employees to whom options may be granted and to the eligibility of members of the Committee. 15.2 Subject to other provisions of the Plan, no termination or amendment of the Plan may, without the consent of the optionee under an option then outstanding, terminate such option or materially or adversely affect the rights of the optionee thereunder. 16. SHAREHOLDER APPROVAL. -------------------- No option granted under this Plan may be exercised in whole or in part until this Plan is approved by the shareholders holding a majority of the outstanding shares of the Company, which approval must occur within the twelve month period after the date the Plan is adopted by the Board of Directors of the Company. In the event such shareholder approval is not forthcoming within the time specified, this Plan and any options granted pursuant to it shall be null and void. 17. AMENDMENTS TO INTERNAL REVENUE CODE OR REGULATIONS. -------------------------------------------------- Any reference in this Plan to a section of the Internal Revenue Code or a section of the Income Tax Regulations shall include any amendments thereto and shall include such additional sections of the Code or Regulations into which the substance of the cited sections shall be incorporated. corp\ina\stk-optn\ima EX-4.II 3 EXHIBIT 4(ii) NON-INCENTIVE STOCK OPTION AGREEMENT* This Non-Incentive Stock Option Agreement (hereinafter "Agreement"), entered into and effective as of the day of , 19 , in the County of St. Louis, Missouri, by and between INSITUFORM TECHNOLOGIES, INC., a Delaware corporation (hereinafter referred to as the "Company"), and the Optionee whose name is set forth on the last page hereof (hereinafter referred to as the "Optionee"). WHEREAS, Optionee has devoted and intends to devote significant time and effort to the success of the Company; and WHEREAS, the Company has determined that it is in the best interests of the Company to issue stock options to encourage continued motivation and incentive by Optionee. NOW, THEREFORE, in consideration of the mutual agreements contained herein: 1. GRANT OF OPTION. Subject to the terms and conditions of this Agreement, the Company hereby grants to Optionee the right, privilege and option to purchase up to the number of shares of Class A Common Stock, par value $.01, of the Company ("Common Stock") set forth below the Optionee's name on the last page hereof, at a price of $ per share. Such option shall be immediately vested as to 20% of the covered shares and shall become vested on a cumulative basis as to an additional 20% of such covered shares on the anniversary date hereof in each of , , and , provided that the Optionee continues to be an employee of the Company on each such anniversary date. 2. TERM OF OPTION. The term of this Option shall expire on . 3. TIME OF EXERCISE OF OPTION. The Option shall be exercisable during its term in whole or in part from time to time beginning on the date hereof, but may be exercised only as to the total number of shares then vested as described in paragraph 1, less any shares previously purchased hereunder. 4. INCORPORATION OF STOCK OPTION PLAN. This Agreement is entered into pursuant to the Insituform Mid-America, Inc. Stock Option Plan, as amended (hereinafter "Plan"), approved by the stockholders of the Company, which Plan is by this reference incorporated herein and made a part hereof. A complete copy of the Plan may be obtained from the Secretary of the Company. The Option covered by this Agreement is not intended to be an Incentive Stock Option as defined in Section 422 of the Internal Revenue Code of 1986, as amended. The material provisions of the Plan applicable to this Option are as follows: - ---------------- * as modified pursuant to Agreement and Plan of Merger dated as of May 23, 1995 among Insituform Technologies, Inc., ITI Acquisition Corp. and Insituform Mid-America, Inc. a. METHOD OF EXERCISE OF OPTION. This Option shall be exercised, in whole or in part to the extent then exercisable, by a written notice delivered to the Secretary of the Company stating the number of shares with respect to which the Option is being exercised, accompanied by payment in cash or, in the discretion of the Company's Compensation Committee (the "Committee"), in previously owned Class A Common Stock or a combination of cash and Class A Common Stock, to the Company in the amount of the exercise price of shares to be purchased. b. STOCK APPRECIATION RIGHT. Instead of exercising an Option, an Optionee may request that the Committee authorize payment of the difference between the fair market value of part or all of the Class A Common Stock subject to the Option and the exercise price of the Option determined as of the date the Committee receives the request from the Optionee. The Committee shall have the sole authority to grant or deny such request. c. TERMINATION OF OPTION. Subject to the express terms and conditions of the Plan, this Option shall terminate in all events on the earlier of (i) the date set forth in paragraph 2 hereof, or (ii) upon the expiration of three months after the termination of Optionee's employment with the Company and its subsidiaries; except that in the event of Optionee's death, Optionee's personal representative may exercise this Option (to the extent exercisable at the date of death) within eighteen (18) months after Optionee's employment terminates because of death. d. NON-TRANSFERABILITY OF OPTION. This Option is non-transferable by Optionee except by will or the laws of descent and distribution and shall be exercisable during Optionee's lifetime only by Optionee. e. ADJUSTMENTS UPON CHANGES IN CAPITALIZATION, ETC. In the event of the payment of a stock dividend, a split-up or consolidation of shares, or any like capital adjustment of the Company as provided under the Plan, then to the extent the Option hereunder remains outstanding and unexercised, there shall be a corresponding adjustment as to the number of shares covered under this Option, and in the purchase price per share, to the end that Optionee shall retain the Optionee's proportionate interest without change in the total purchase price under this Option. IN WITNESS WHEREOF, the Company has caused this Agreement to be executed by its Chairman of the Board or President, and Optionee has signed the same in duplicate originals. INSITUFORM TECHNOLOGIES, INC. By: --------------------------- ------------------------------ Name of Optionee (Typed) ------------------------------ Number of Shares covered by Option ------------------------------ Signature of Optionee ------------------------------ Date INCENTIVE STOCK OPTION AGREEMENT* This Incentive Stock Option Agreement (hereinafter "Agreement"), entered into and effective as of the day of , 19 , in the County of St. Louis, Missouri, by and between INSITUFORM TECHNOLOGIES, INC., a Delaware corporation (hereinafter referred to as the "Company") and (hereinafter referred to as the "Optionee"), WHEREAS, Optionee has devoted and intends to devote significant time and effort to the success of the Company; and WHEREAS, the Company has determined that it is in the best interests of the Company to issue stock options to encourage continued motivation and incentive by Optionee. NOW, THEREFORE, in consideration of the mutual agreements contained herein: 1. GRANT OF OPTION. Subject to the terms and conditions of this Agreement, the Company hereby grants to Optionee the right, privilege and option to purchase shares of Class A Common Stock, par value $.01, of the Company ("Common Stock") at a price of $ per share. Such Option shall become immediately vested as to 20% of the covered shares and shall become vested as to an additional 20% of such covered shares on the anniversary date hereof in each of , , and , provided that the Optionee continues to be an employee of the Company on each such anniversary date. 2. TERM OF OPTION. The term of this Option shall expire on . 3. TIME OF EXERCISE OF OPTION. The Option shall be exercisable during its term in whole or in part from time to time beginning six months from the date hereof, but may be exercised only as to the total number of shares then vested as described in paragraph 1, less any shares previously purchased hereunder. 4. INCORPORATION OF STOCK OPTION PLAN. This Agreement is entered into pursuant to the Insituform Mid-America, Inc. Stock Option Plan, as amended (hereinafter "Plan") approved by the unanimous written consent of all the stockholders of the Company, which Plan is by this reference incorporated herein and made a part hereof. A complete copy of the Plan may be obtained from the Secretary of the Company. The Option covered by this Agreement is intended to be an Incentive Stock Option as defined in Section 422A of the Internal Revenue Code of 1954, as amended. The material provisions of the Plan applicable to this Option are as follows: - ---------------- * as modified pursuant to Agreement and Plan of Merger dated as of May 23, 1995 among Insituform Technologies, Inc., ITI Acquisition Corp. and Insituform Mid-America, Inc. a. METHOD OF EXERCISE OF OPTION. This Option shall be exercised, in whole or in part to the extent then exercisable, by a written notice delivered to the Secretary of the Company stating the number of shares with respect to which the Option is being exercised, accompanied by payment in cash or, in the discretion of the Company's Compensation Committee (the "Committee"), in previously owned Class A Common Stock or a combination of cash and Class A Common Stock, to the Company in the amount of the exercise price of shares to be purchased. b. STOCK APPRECIATION RIGHT. Instead of exercising an Option, an Optionee may request that the Committee authorize payment of the difference between the fair market value of part or all of the Class A Common Stock subject to the Option and the exercise price of the Option determined as of the date the Committee receives the request from the Optionee. The Committee shall have the sole authority to grant or deny such request. c. TERMINATION OF OPTION. This Option shall terminate in all events on the earlier of (i) the date set forth in paragraph 2 hereof, or (ii) on the termination of Optionee's employment with the Company and its subsidiaries; except that in the event of Optionee's death, Optionee's personal representative may exercise this Option (to the extent exercisable at the date of death) within eighteen (18) months after Optionee's employment terminates because of death. d. NON-TRANSFERABILITY OF OPTION. This Option is non-transferable by Optionee except by will or the laws of descent and distribution and shall be exercisable during Optionee's lifetime only by Optionee. e. ADJUSTMENTS UPON CHANGES IN CAPITALIZATION, ETC. In the event of the payment of a stock dividend, a split-up or consolidation of shares, or any like capital adjustment of the Company as provided under the Plan, then to the extent the Option hereunder remains outstanding and unexercised, there shall be a corresponding adjustment as to the number of shares covered under this Option, and in the purchase price per share, to the end that Optionee shall retain the Optionee's proportionate interest without change in the total purchase price under this Option. IN WITNESS WHEREOF, the Company has caused this Agreement to be executed by its Chairman of the Board or President, and Optionee has signed the same, in duplicate originals on . INSITUFORM TECHNOLOGIES, INC. By: --------------------------- ------------------------------ Optionee INCENTIVE STOCK OPTION AGREEMENT* This Incentive Stock Option Agreement ("Agreement"), entered into as of the date set forth below, by and between INSITUFORM TECHNOLOGIES, INC., a Delaware corporation (hereinafter referred to as the "Company"), and the Optionee whose name is set forth below (the "Optionee"). 1. GRANT OF OPTION. Subject to the terms and conditions of this Agreement, the Company hereby grants to Optionee the right, privilege and option to purchase up to the number of shares of Class A Common Stock, par value $.01, of the Company ("Common Stock") set forth below, at the exercise price per share set forth below (the "Option"). 2. TERM OF OPTION. The term of the Option shall expire on the tenth anniversary of the date set forth below. 3. TIME OF EXERCISE OF OPTION. The Option shall be exercisable during its term in whole or in part from time to time beginning on the date hereof. 4. INCORPORATION OF STOCK OPTION PLAN. This Agreement is entered into pursuant to the Insituform Mid-America, Inc. Stock Option Plan, as amended (hereinafter "Plan"), which Plan is by this reference incorporated herein and made a part hereof. A complete copy of the Plan may be obtained from the Secretary of the Company. The Option herein granted is intended to be an Incentive Stock Option as defined in Section 422 of the Internal Revenue Code of 1986, as amended. Material provisions of the Plan applicable to this Option include the following: a. METHOD OF EXERCISE OF OPTION. This Option may be exercised, in whole or in part to the extent then exercisable, only by a written notice delivered to the Secretary of the Company stating the number of shares with respect to which the Option is being exercised, accompanied by payment in cash. b. TERMINATION OF OPTION. Subject to the express terms and conditions of the Plan (which may, in certain instances, provide for earlier termination) this Option shall terminate in all events on the earlier of: (i) the date set forth in paragraph 2 hereof, or (ii) upon the expiration of three months after the termination of Optionee's employment with the Company and its subsidiaries; except that in the event of Optionee's death, Optionee's personal representative may exercise this Option (to the extent exercisable at the date of death) within 18 months after Optionee's employment terminates because of death. - ---------------- * as modified pursuant to Agreement and Plan of Merger dated as of May 23, 1995 among Insituform Technologies, Inc., ITI Acquisition Corp. and Insituform Mid-America, Inc. c. NON-TRANSFERABILITY OF OPTION. This Option is non-transferable by Optionee except by will or the laws of descent and distribution and shall be exercisable during Optionee's lifetime only by Optionee. d. ADJUSTMENTS UPON CHANGES IN CAPITALIZATION, ETC. In the event of the payment of a stock dividend, a split-up or consolidation of shares, or any like capital adjustment of the Company as provided under the Plan, then to the extent the Option hereunder remains outstanding and unexercised, there shall be a corresponding adjustment as to the number of shares covered under this Option, and in the purchase price per share, to the end and Optionee shall retain the Optionee's proportionate interest in the Company without change in the total exercise price under this Option. IN WITNESS WHEREOF, the Company has caused this Agreement to be executed by its Chairman of the Board, Vice Chairman or President, and Optionee has signed the same in duplicate originals. INSITUFORM TECHNOLOGIES, INC. - ------------------------- By: Number of Shares --------------------------- Subject to Option Name: Title: - ------------------------- ------------------------------ Exercise Price per Share Name of Optionee (Typed) - ------------------------- ------------------------------ Date Signature of Optionee corp\ina\stk-optn\exhb.4 EX-3.I 4 EXHIBIT 4(iii) State of Delaware PAGE 1 Office of the Secretary of State I, EDWARD J. FREEL, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO HEREBY CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF INCORPORATION OF "INSITUFORM OF NORTH AMERICA, INC.", FILED IN THIS OFFICE ON THE TWENTY-SEVENTH DAY OF MARCH, A.D. 1980, AT 9 O'CLOCK A.M. [SEAL OF THE SECRETARY OF STATE] /s/ Edward J. Freel Edward J. Freel, Secretary of State 0889565 8100 AUTHENTICATION: 7623654 950196143 DATE: 08-29-95 CERTIFICATE OF INCORPORATION OF INSITUFORM OF NORTH AMERICA, INC. I, the undersigned, in order to form a corporation for the purposes hereinafter stated, under and pursuant to the provisions of the General Corporation Law of the State of Delaware, do hereby certify as follows: FIRST: The name of the corporation is INSITUFORM OF NORTH AMERICA INC. SECOND: The registered office of the corporation is to be located at c/o United Corporate Services, Inc., 410 South State Street, in the City of Dover, County of Kent, State of Delaware. The name of its registered agent at that address is United Corporate Services, Inc. THIRD: The purpose of the corporation is to engage in any lawful act or activity for which a corporation may be organized under the General Corporation Law of Delaware. FOURTH: The corporation shall be authorized to issue two million five hundred thousand (2,500,000) shares consisting of one million two hundred fifty thousand (1,250,000) Class A Common shares, par value one cent ($0.01) per share; seven hundred fifty thousand (750,000) Class B Common Shares, par value one cent ($0.01) per share; and five hundred thousand (500,000) Preferred shares, par value ten cents ($0.10) per share. The designations and the powers, preferences and rights, and the qualifications or restrictions thereof are as follows: 1. The holders of the Class A Common shares shall be entitled to vote in all matters requiring shareholder and shall be entitled to elect one-third (1/3) of the members of the board of Directors less one (1) director; the holders of the Class B Common shares shall be entitled to vote in all matters requiring shareholder and shall be entitled to elect two-thirds (2/3) of the members of the Board of Directors; and the holders of the Preferred shares shall have the right to elect one (1) member of the Board of Directors. 2. The holders of the Preferred shares shall be entitled to receive one dollar and twenty cents ($1.20) per share, per annum, cumulative dividends before any dividends are declared and paid to the holders of the Class A Common and the Class B Common shares. 3. The holders of the Preferred shares shall be entitled, upon dissolution or liquidation of the corporation, to share in the assets of the corporation, ratably , in an aggregate amount of ten dollars ($10.00) per share plus cumulative dividends declared and unpaid thereon before any distribution is made to the Class A Common and Class B Common shares. 4. The holders of the Preferred shares shall, at their own discretion, be entitled to convert all of their shares or any part thereof into shares of Class A Common at the following rates: (a) Through November 30th, 1983, on a one Preferred share for one Class A Common share basis. (b) The number of Class A Common shares to be issued on conversion of the Preferred shares shall be reduced by ten percent (10%) each year thereafter beginning December 1st, 1983 until November 30th, 1993. 5. The corporation shall, beginning December 1st, 1983, establish a Sinking Fund for the annual retirement of ten percent (10%) of the outstanding Preferred shares. FIFTH: The name and address of the incorporator are as follows: Name Address Ray A. Barr 9 East 40th Street New York, New York 10016 SIXTH: The following provisions are inserted for the management of the business and for the conduct of the affairs of the corporation, and for further definition, limitation and regulation of the powers of the corporation and of its directors and stockholders: (1) The number of directors of the corporation shall be such as from time to time shall be fixed by, or in the manner provided in the by-laws. Election of directors need not be by ballot unless the by-laws so provide. (2) The Board of Directors shall have power without the assent or vote of the stockholders: (a) To make, alter, amend, change, add to or repeal the By-Laws of the corporation; to fix and vary the amount to be reserved for any proper purpose; to authorize and cause to be executed mortgages and liens upon all or any part of the property of the corporation; to determine the use and disposition of any surplus or net profits; and to fix the times for the declaration and payment of dividends. (b) To determine from time to time whether, and to what extent, and at what times and places, and under what conditions the accounts and books of the corporation (other than the stock ledger) or any of them, shall be open to the inspection of the stockholders. (3) The directors at their discretion may submit any contract or act for approval or ratification at any annual meeting of the stockholders or at any meeting of the stockholders called for the purpose of considering any such act or contract, and any contract or act that shall be approved or be ratified by the vote of the holders of a majority of the stock of the corporation which is represented in person or by proxy at such meeting and entitled to vote thereat (provided that a lawful quorum of stockholders be there represented in person or by proxy) shall be a valid and as binding upon the corporation and upon all the stockholders as though it had been approved or ratified by every stockholder of the corporation, whether or not the contract or act would otherwise be open to legal attack because of directors' interest, or for any other reason. (4) In addition to the powers and authorities hereinbefore or by statute expressly conferred upon them, the directors are hereby empowered to exercise all such powers and do all such acts and things as may be exercised or done by the corporation; subject, nevertheless, to the provisions of the statutes of Delaware, of this certificate, and to any by-laws from time to time made by the stockholders; provided, however, that no by-laws so made shall invalidate any prior act of the directors which would have been valid if such by-law had not been made. SEVENTH: The corporation shall, to the full extent permitted by Section 145 of the Delaware General Corporation Law, as amended, from time to time, indemnify all persons whom it may indemnify pursuant thereto. EIGHTH: Whenever a compromise or arrangement is proposed between this corporation and its creditors or any class of them and/or between this corporation and its stockholders or any class of them, any court of equitable jurisdiction within the State of Delaware, may, on the application in a summary way of this corporation or of any creditor or stockholder thereof or on the application of any receiver or receivers appointed for this corporation under the provisions of Section 291 of Title 8 of the Delaware Code or on the application of trustees in dissolution or of any receiver or receivers appointed for this corporation under the provisions of Section 279 Title 8 of the Delaware Code order a meeting of the creditors or class of creditors, and/or of the stockholders or class of stockholders of this corporation, as the case may be, to be summoned in such manner as the said court directs. If a majority in number representing three-fourths (3/4) in value of the creditors or class of creditors, and/or of the stockholders or class of stockholders of this corporation, as the case may be, agree to any compromise or arrangement and to any reorganization of this corporation as consequence of such compromise or arrangement, the said compromise or arrangement and the said reorganization shall, if sanctioned by the court to which the said application has been made, be binding on all the creditors or class of creditors, and/or on all the stockholders or class of stockholders, of this corporation, as the case may be, and also on this corporation. NINTH: The corporation reserves the right to amend, alter, change or repeal any provision contained in this certificate of incorporation in the manner now or hereafter prescribed by law, and all rights and powers conferred herein on stockholders, directors and officers are subject to this reserved power. IN WITNESS WHEREOF, I have hereunto signed my name and affirm that the statements made herein are true under the penalties of perjury, this 12th day of March, 1980. /s/ RAY A. BARR Ray A. Barr, Incorporator STATE OF DELAWARE PAGE 1 OFFICE OF THE SECRETARY OF STATE I, EDWARD J. FREEL, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO HEREBY CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF AMENDMENT OF "INSITUFORM OF NORTH AMERICA, INC.", FILED IN THIS OFFICE ON THE SIXTEENTH DAY OF JANUARY, A.D. 1981, AT 9 O'CLOCK A.M. [SEAL OF THE SECRETARY OF STATE] /s/ Edward J. Freel Edward J. Freel, Secretary of State 0889565 8100 AUTHENTICATION: 7623653 950196143 DATE: 08-29-95 CERTIFICATE OF AMENDMENT OF CERTIFICATE OF INCORPORATION OF INSITUFORM OF NORTH AMERICA, INC. INSITUFORM OF NORTH AMERICA, INC., a corporation organized and existing under the General Corporation Law of the State of Delaware (the "Corporation"), does hereby certify: FIRST: The name of the Corporation is INSITUFORM OF NORTH AMERICA, INC. SECOND: The amendment to the Certificate of Incorporation to be effected hereby is as follows: Paragraph "FOURTH" of the Certificate of Incorporation, relating to the number of authorized shares of the Corporation is hereby amended to read as follows: FOURTH: The Corporation shall be authorized to issue five million (5,000,000) shares consisting of three million seven hundred fifty thousand (3,750,000) Class A common shares, par value One Cent ($0.01) per share; seven hundred fifty thousand (750,000) Class B common shares, par value One Cent ($0.01) per share; and five hundred thousand (500,000) preferred shares, par value Ten Cents ($0.10) per share. The designations and the powers, preferences and rights, and the qualifications or restrictions thereof are as follows: 1. The holders of the Class A Common shares shall be entitled to vote in all matters requiring shareholder and shall be entitled to elect one-third (1/3) of the members of the Board of Directors less one (1) director; the holders of the Class B Common shares shall be entitled to vote in all matters requiring shareholder and shall be entitled to elect two-thirds (2/3) of the members of the Board of Directors; and the holders of the Preferred shares shall have the right to elect one (1) member of the Board of Directors. 2. The holders of the Preferred shares shall be entitled to receive one dollar and twenty cents ($1.20) per share, per annum, cumulative dividends before any dividends are declared and paid to the holders of the Class A Common and the Class B Common shares. 3. The holders of the Preferred shares shall be entitled, upon dissolution or liquidation of the corporation, to share in the assets of the corporation, ratably, in an aggregate amount of ten dollars ($10.00) per share plus cumulative dividends declared and unpaid thereon before any distribution is made to the Class A Common and Class B Common shares. 4. The holders of the Preferred shares shall, at their own discretion, be entitled to convert all of their shares or any part thereof into shares of Class A Common at the following rates: (a) Through November 30th, 1983, on a one Preferred share for one Class A Common share basis. (b) The number of Class A Common shares to be issued on conversion of the Preferred shares shall be reduced by ten percent (10%) each year thereafter beginning December 1st, 1983 until November 30th, 1993. 5. The corporation shall, beginning December 1st, 1983, establish a Sinking Fund for the annual retirement of ten percent (10%) of the outstanding Preferred shares." THIRD: This amendment to the Corporation's Certificate of Incorporation has been authorized by the consent, in writing, setting forth the action so taken, unanimously signed by the holders of all the outstanding shares entitled to vote thereon pursuant to Sections 228 and 242 of the General Corporation Law of the State of Delaware and by the unanimous consent of all of the directors of the Corporation, all as duly adopted in accordance with the provisions of Section 242 of the General Corporation Law of the State of Delaware. IN WITNESS WHEREOF, INSITUFORM OF NORTH AMERICA, INC. has caused this certificate to be signed and attested by duly authorized officers this 15th day of January, 1981. INSITUFORM OF NORTH AMERICA, INC. By: /s/ Matthew McPheely President /s/ John Slater Secretary UNANIMOUS WRITTEN CONSENT The undersigned, constituting all of the shareholders of INSITUFORM OF NORTH AMERICA, INC., and its Board of Directors hereby consent to the adoption of the amendment reflected in the attached Certificate of Amendment to the Certificate of Incorporation of INSITUFORM OF NORTH AMERICA, INC. and direct that it be filed forthwith with the appropriate authorities in the State of Delaware and elsewhere. SALISBURY LTD. By: /s/ Paul Church Paul Church RINGWOOD LTD. By: Paul Church UNANIMOUS WRITTEN CONSENT The undersigned, constituting all of the shareholders of INSITUFORM OF NORTH AMERICA, INC., and its Board of Directors hereby consent to the adoption of the amendment reflected in the attached Certificate of Amendment to the Certificate of Incorporation of INSITUFORM OF NORTH AMERICA, INC. and direct that it be filed forthwith with the appropriate authorities in the State of Delaware and elsewhere. SALISBURY LTD. By: Paul Church RINGWOOD LTD. By: /s/ Paul Church Paul Church STATE OF DELAWARE PAGE 1 OFFICE OF THE SECRETARY OF STATE I, EDWARD J. FREEL, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO HEREBY CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF AMENDMENT OF "INSITUFORM OF NORTH AMERICA, INC.", FILED IN THIS OFFICE ON THE TWENTY-EIGHTH DAY OF APRIL, A.D. 1981, AT 3 O'CLOCK P.M. [Secretary of State Seal] /s/ Edward J. Freel Edward J. Freel, Secretary of State AUTHENTICATION: 7623652 DATE: 08-29-95 CERTIFICATE OF AMENDMENT OF CERTIFICATE OF INCORPORATION OF INSITUFORM OF NORTH AMERICA, INC. INSITUFORM OF NORTH AMERICA, INC., a corporation organized and existing under the General Corporation Law of the State of Delaware (the "Corporation"), does hereby certify: FIRST: The name of the Corporation is INSITUFORM OF NORTH AMERICA, INC. SECOND: The amendment to the Certificate of Incorporation to be effected hereby is as follows: Paragraph "FOURTH" of the Certificate of Incorporation, relating to the number of authorized shares of the Corporation is hereby amended to read as follows: "FOURTH: The Corporation shall be authorized to issue ten million five hundred thousand (10,500,000) shares consisting of eight million seven hundred fifty thousand (8,750,000) Class A common shares par value One Cent ($0.01) per share; one million two hundred fifty thousand (1,250,000) Class B common shares; par value One Cent ($0.01) per share; and five hundred thousand (500,000) preferred shares, par value Ten Cents ($0.10) per share. The designations and the powers, preferences and rights, and the qualifications or restrictions thereof are as follows: 1. The holders of all Common shares shall have equal voting rights except in the election of Directors. The Class A shares shall be entitled to elect as a class one-third (1/3) of the members of the Board of Directors less directors elected by the holders of the Company's preferred stock. The holders of the Class B Common shares shall be entitled to elect two-thirds (2/3) of the members of the Board of Directors. Notwithstanding the above, the Board of Directors may provide that in the event dividends on one or more series of the Company's preferred stock are in arrears, the holders of such series may be entitled to elect additional directors. The class B shares shall be convertible into class A shares at the option of the holder thereof on a share for share basis. 2. The preferred shares shall be issued in one or more series designated by the Board of Directors without further shareholder action and shall bear such terms and designations as the Board of Directors may fix, including dividend rates, redemption rights, conversion rights, liquidation preferences, voting rights (provided that the Board of Directors may designate that the holders of one or more series of preferred stock shall be entitled as a series to elect one director and the Board of Directors may at its discretion grant the holders of one or more series of the Company's preferred stock the right to elect additional directors in the event that dividends on such series shall be in arrears) and such other terms as the Board of Directors shall determine. Any preferred shares reacquired by the Company may be reissued without further shareholder approval. THIRD: This amendment to the Corporation's Certificate of Incorporation has been authorized by the consent, in writing, setting forth the action so taken, unanimously signed by the holders of all the outstanding shares entitled to vote thereon pursuant to Sections 228 and 242 of the General Corporation Law of the State of Delaware and by the unanimous consent of all of the directors of the Corporation, all as duly adopted in accordance with the provisions of Section 242 of the General Corporation Law of the State of Delaware and restates the provisions of amendments previously filed with the Secretary of State of Delaware. IN WITNESS WHEREOF, INSITUFORM OF NORTH AMERICA, INC. has caused this certificate to be signed and attested by duly authorized officers as of the 15th day of January, 1981. INSITUFORM OF NORTH AMERICA, INC. By: /s/ Matthew McPheely President /s/ John Slater Secretary STATE OF DELAWARE PAGE 1 OFFICE OF THE SECRETARY OF STATE I, EDWARD J. FREEL, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO HEREBY CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF AMENDMENT OF "INSITUFORM OF NORTH AMERICA, INC.", FILED IN THIS OFFICE ON THE SEVENTEENTH DAY OF JUNE, A.D. 1988, AT 9 O'CLOCK A.M. [SEAL] /s/ Edward J. Freel Edward J. Freel, Secretary of State AUTHENTICATION: 0889565 8100 7623651 DATE: 950196143 08-29-95 CERTIFICATE OF AMENDMENT OF CERTIFICATE OF INCORPORATION OF INSITUFORM OF NORTH AMERICA, INC. INSITUFORM OF NORTH AMERICA, INC., a corporation organized and existing under and by virtue of the laws of the State of Delaware (the "Corporation"), pursuant to the provisions of the General Corporation Law of the State of Delaware (the "GCL") does hereby certify as follows: FIRST: The Certificate of Incorporation is hereby amended by adding a new Paragraph Tenth after Paragraph Ninth in the following form: TENTH: No person who is or was at any time a director of the corporation shall be personally liable to the corporation or its stockholders for monetary damages for any breach of fiduciary duty by such person as a director; provided, however, that, unless and except to the extent otherwise permitted from time to time by applicable law, the provisions of this Paragraph Tenth shall not eliminate or limit the liability of a director (i) for breach of the director's duty of loyalty to the corporation or its stockholders, (ii) for any act or omission by the director which is not in good faith or which involves intentional misconduct or a knowing violation of law, (iii) under Section 174 of the General Corporation Law of the State of Delaware, (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 this Paragraph Tenth becomes effective. No amendment to or repeal of this Paragraph Tenth shall apply to or have any effect on the liability or alleged liability of any director of the corporation for or with respect to any act or omission of such director occurring prior to such amendment or repeal. SECOND: The amendment to the Certificate of Incorporation of the Corporation set forth in this Certificate of Amendment has been duly adopted in accordance with the applicable provisions of Section 242 of the GCL (a) the Board of Directors of the Corporation having duly adopted resolutions setting forth such amendment and declaring their advisability at a meeting of the Board of Directors of the Corporation duly called and held on April 14, 1988 in conformity with the By-laws of the Corporation, and (b) the stockholders of the Corporation having duly adopted such amendment by the affirmative vote of the holders of a majority of the outstanding stock entitled to vote thereon, on June 14, 1988, taken at the Corporation's annual meeting of stockholders duly called and held upon notice in accordance with Section 222 of the GCL. THIRD: The capital of the Corporation will not be reduced under or by reason of the amendment to its Certificate of Incorporation set forth in this Certificate of Amendment. IN WITNESS WHEREOF, the Corporation has caused this certificate to be executed on its behalf by Robert M. Leopold, its Chief Executive Officer and attested by Howard Kailes, its Secretary, as of this 14th day of June, 1988. /s/ ROBERT M. LEOPOLD Robert M. Leopold Chief Executive Officer [CORPORATE SEAL] ATTEST: /s/ HOWARD KAILES Howard Kailes Secretary STATE OF NEW YORK ) ) SS.: COUNTY OF NEW YORK ) BEFORE ME, the undersigned authority, on this day personally appeared ROBERT M. LEOPOLD, Chief Executive Officer, of INSITUFORM OF NORTH AMERICA, INC., known to me to be the person and officer whose name is subscribed to the foregoing instrument, and acknowledged to me that he executed same for the purposes and consideration therein expressed and in the capacity therein stated as the act and deed of said corporation. GIVEN UNDER MY HAND AND SEAL OF OFFICE, this 14th day of June, 1988. /s/ EVELYN M. THORNLEY Notary Public in and for the State of New York My Commission Expires: EVELYN M. THORNLEY Notary Public, State of New York No. 31-4679747 Qualified in New York County Commission Expires Sept. 30, 1988 PAGE 1 STATE OF DELAWARE OFFICE OF THE SECRETARY OF STATE I, EDWARD J. FREEL, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO HEREBY CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF DESIGNATION OF "INSITUFORM OF NORTH AMERICA, INC.", FILED IN THIS OFFICE ON THE SECOND DAY OF DECEMBER, A.D. 1988, AT 9 O'CLOCK A.M. [SEAL] /s/ EDWARD J. FREEL Edward J. Freel, Secretary of State AUTHENTICATION: 0889565 8100 7623650 DATE: 950196143 08-29-95 CERTIFICATE OF DESIGNATION OF SERIES C CUMULATIVE, NON-VOTING PREFERRED STOCK OF INSITUFORM OF NORTH AMERICA, INC. Pursuant to Section 151 of the General Corporation Law of the State of Delaware We, Robert M. Leopold, Chief Executive Officer, and Howard Kailes, Secretary of Insituform of North America, Inc., a corporation organized and existing under the General Corporation Law of the State of Delaware, in accordance with the provisions of Section 103 thereof, DO HEREBY CERTIFY: That pursuant to the authority conferred upon the Board of Directors by Paragraph Fourth of the Certificate of Incorporation of said Corporation and in accordance with the provisions of Section 151 of the General Corporation Law of the State of Delaware, its Board of Directors on November 18, 1988, adopted the following resolution designating a series of its Preferred Stock, $.10 par value, as Series C Cumulative, Non-Voting Preferred Stock: RESOLVED, that pursuant to the authority vested in the Board of Directors of this Corporation in accordance with the provisions of Paragraph Fourth of its Certificate of Incorporation, a series of Preferred Stock, $.10 par value, of this Corporation, be and it hereby is created, and that the designation and amount thereof and the voting powers, preferences, and other special rights, qualifications, limitations and restrictions thereof are as follows: (A) Designation and Amount. An aggregate of 200,000 shares of Preferred Stock, $.10 par value, of the Corporation are hereby constituted as a series designated as "Series C Cumulative, Non-Voting Preferred Stock (the "Series C Cumulative, Non-Voting Preferred Stock"). Such number of shares may be increased or decreased by resolution of the Board of Directors; provided, that no decrease shall reduce the number of shares of Series C Cumulative, Non-Voting Preferred Stock to a number less than the number of shares then outstanding plus the number of shares reserved for issuance upon satisfaction of the conditions under any contingent rights granted by the Corporation with respect to Series C Cumulative, Non-Voting Preferred Stock. (B) Dividends. (1) The holders of shares of Series C Cumulative, Non-Voting Preferred Stock in preference to the holders of class A common stock, $.01 par value (the "Class A Common Stock"), of the Corporation and class B common stock, $.01 par value (the "Class B Common Stock"), of the Corporation, and of any other junior stock, shall be entitled to receive, when, as and if declared by the Board of Directors out of funds legally available for that purpose, and to the extent not in violation of or in conflict with any covenant made or to be made by the Corporation under the Loan Agreement dated December 20, 1985 between The Industrial Development Board of the City of Memphis and County of Shelby, Tennessee or the Guaranty dated as of December 1, 1988 in favor of Third National Bank in Nashville, as Trustee, or extended on substantially the same terms in favor of any other financial institution (collectively, the "Loan Documents"), semi-annual dividends payable in cash on the first day of January and July in each year (each such date being referred to herein as a "Semi-Annual Dividend Payment Date", commencing on the first Semi-Annual Dividend Payment Date after the first issuance of a share or fraction of a share of Series C Cumulative, Non-Voting Preferred Stock, in an amount per share equal to $5.40. (2) Dividends shall begin to accrue and be cumulative, whether or not earned or declared, on outstanding shares of Series C Cumulative, Non-Voting Preferred Stock from and after the date of issue of such shares, unless the date of issue of such shares is prior to the record date for the first Semi-Annual Dividend Payment Date, in which case dividends on such shares shall begin to accrue from the date of issue of such shares, or unless the date of issue is a Semi-Annual Dividend Payment Date or is a date after the record date for the determination of holders of shares of Series C Cumulative, Non-Voting Preferred Stock entitled to receive a Semi-Annual Dividend and before such Semi-Annual Dividend Payment Date, in either of which events such dividends shall begin to accrue and be cumulative for such Semi-Annual Dividend Payment Date. Accrued but unpaid dividends shall not bear interest. Dividends paid on the shares of Series C Cumulative, Non-Voting Preferred Stock in an amount less than the total amount of such dividends at the time accrued and payable on such shares shall be allocated pro-rata on a share-by- share basis among all such shares at the time outstanding. The Board of Directors may fix a record date for the determination of holders of shares of Series C Cumulative, Non-Voting Preferred Stock entitled to receive payment of a dividend declared, which record date shall not be more than 60 days prior to the date fixed for the payment thereof. (C) Voting Rights. Except as set forth herein, or as otherwise provided by law, holders of Series C Cumulative, Non-Voting Preferred Stock shall have no voting rights. On all matters with respect to which holders of the Series C Cumulative, Non-Voting Preferred Stock are entitled to vote as a single class as aforesaid, each holder of Series C Cumulative, Non-Voting Preferred Stock afforded such class voting right shall be entitled to one vote for each share held. (D) Certain Restrictions. Whenever semi-annual dividends payable on the Series C Cumulative, Non-Voting Preferred Stock as provided in Section B hereof are in arrears for three consecutive semi-annual periods, thereafter and until all accrued and unpaid dividends, whether or not earned or declared, on shares of Series C Cumulative, Non-Voting Preferred Stock outstanding shall have been paid in full, the Corporation shall not: (1) declare or pay dividends on any shares of stock ranking junior (either as to dividends or upon liquidation, dissolution or winding up) to the Series C Cumulative, Non-Voting Preferred Stock; (2) declare or pay dividends on any shares ranking pari passu (either as to dividends or upon liquidation, dissolution or winding up) with the Series C Cumulative, Non-Voting Preferred Stock, except dividends paid ratably on the Series C Cumulative, Non-Voting Preferred Stock and all such parity stock on which dividends are payable or in arrears in proportion to the total amounts to which the holders of all such shares are then entitled; (3) redeem or purchase or otherwise acquire for consideration shares of any stock ranking junior (either as to dividends or upon liquidation, dissolution or winding up) to the Series C Cumulative, Non-Voting Preferred Stock, provided that the Corporation may at any time, redeem, purchase or otherwise acquire shares of any such junior stock in exchange for shares of any stock of this Corporation ranking junior (either as to dividends or upon dissolution, liquidation or winding up) to the Series C Cumulative, Non-Voting Preferred Stock; and (4) redeem or purchase or otherwise acquire for consideration shares of Series C Cumulative, Non-Voting Preferred Stock, or any shares of stock ranking pari passu with the Series C Cumulative, Non-Voting Preferred Stock except in accordance with a purchase offer made in writing or by publication (as determined by the Board of Directors) to all holders of such shares upon such terms as the Board of Directors, after consideration of the respective annual dividend rate and other relative rights and preferences of the respective series and classes, shall determine in good faith will result in fair and equitable treatment among the respective series or classes. (E) Reacquired Shares. Any shares of the Series C Cumulative, Non-Voting Preferred Stock purchased or otherwise acquired by this Corporation in any manner whatsoever shall be retired and cancelled promptly after the acquisition thereof. All such shares shall upon their cancellation become authorized but unissued as shares of Preferred Stock and may be reissued as Series C Cumulative, Non-Voting Preferred Stock or as part of a new series of Preferred Stock subject to the conditions and restrictions of issuance set forth herein, in the Certificate of Incorporation or as otherwise required by law. (F) Liquidation, Dissolution or Winding Up. (1) Upon any liquidation, dissolution or winding up of this Corporation, no distribution shall be made to the holders of shares of stock ranking junior (either as to dividends, or upon liquidation, dissolution or winding up) to the Series C Cumulative, Non-Voting Preferred Stock unless prior thereto, the holders of shares of Series C Cumulative, Non-Voting Preferred Stock shall have received $200 per share, plus an amount equal to accrued and unpaid dividends thereon, whether or not declared or earned, to the date of such payment. After such payments to holders of Series C Cumulative, Non-Voting Preferred Stock, the holders thereof, as such, shall not have any right to participate in any further distribution of or payment out of the assets of the Corporation. (2) If upon any voluntary or involuntary liquidation, dissolution or winding up of the Corporation, the assets available for distribution to holders of shares of Series C Cumulative, Non-Voting Preferred Stock shall be insufficient to pay such holders the full preferential amount to which they are entitled, then such assets shall be distributed ratably among the shares of Series C Cumulative, Non-Voting Preferred Stock in accordance with the respective preferential amounts, including unpaid cumulative dividends, if any, payable with respect thereto. (G) Redemption. Each share of Series C Cumulative, Non-Voting Preferred Stock shall, out of funds legally available for that purpose, be redeemed by the Corporation on the date (the "Redemption Date") which falls five years from its date of issuance, at a redemption price of $200, plus an amount equal to all accrued and unpaid dividends on such share, whether or not declared or earned, to the Redemption Date. Notice of each redemption shall be mailed at least 30 days prior to the Redemption Date with respect thereto, shall state the date, place and purchase price of such redemption and shall be given to the holders of record of the shares of Series C Cumulative, Non-Voting Preferred Stock to be redeemed, by first class mail, postage pre-paid, at such holder's address of record. On the Redemption Date, all dividends on the shares to be redeemed shall cease to accrue, all rights with respect to such shares so to be redeemed shall forthwith on such date cease and determine (except only the right of the holder to receive the redemption price therefor, but without any interest), and such shares so called for redemption shall no longer be deemed outstanding. On or before each Redemption Date, the respective holders of record of shares to be redeemed shall deliver to the Corporation the certificates for the shares to be redeemed. Notwithstanding any other provision contained in this Paragraph (G), in the event and to the extent that any redemption of shares of Series C Cumulative, Non-Voting Preferred Stock would violate or conflict with any covenant made or to be made by the Corporation under the Loan Documents, the Redemption Date with respect to such shares shall be postponed to the earliest date not resulting in such violation or conflict. (H) Junior Stock. For purposes hereof, the term "junior stock" shall mean the Class A Common Stock and the Class B Common Stock and any other class of stock of the Corporation hereinafter authorized which shall rank junior to the Series C Cumulative, Non-Voting Preferred Stock as to all dividends or preference on dissolution, liquidation or winding up of the Corporation. (I) No Pre-Emption; Amendment. No right to subscribe for or to take any stock of any class or any securities convertible to any stock, at any time issued by the Corporation shall vest in or accrue to any holder of shares of Series C Cumulative, Non-Voting Preferred Stock with respect to any shares which he holds. The Certificate of Incorporation of this Corporation shall not be amended in any manner which would materially alter or change the powers, preferences or special rights of the Series C Cumulative, Non-Voting Preferred Stock so as to affect them adversely without the affirmative vote of the holders of at least two-thirds of the outstanding shares of Series C Cumulative, Non-Voting Preferred Stock, voting together as a single series. This resolution was duly adopted by the Board of Directors of this Corporation at a meeting thereof duly called and held on November 18, 1988, at which a quorum was present and acting throughout. IN WITNESS WHEREOF, the Corporation has caused its corporate seal to be hereunder affixed and this Certificate of Designation to be signed by Robert M. Leopold, its Chief Executive Officer and attested to, by Howard Kailes, its Secretary, on the 1st day of December, 1988. INSITUFORM OF NORTH AMERICA, INC. By /s/ ROBERT M. LEOPOLD Robert M. Leopold Chief Executive Officer [SEAL] Attest: /s/ HOWARD KAILES Howard Kailes Secretary STATE OF DELAWARE OFFICE OF THE SECRETARY OF STATE I, EDWARD J. FREEL, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO HEREBY CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF AMENDMENT OF "INSITUFORM OF NORTH AMERICA, INC.", FILED IN THIS OFFICE ON THE TWENTY-SEVENTH DAY OF AUGUST, A.D. 1990, AT 11:45 O'CLOCK A.M. [Secretary of State Seal] /s/ EDWARD J. FREEL Edward J. Freel, Secretary of State AUTHENTICATION: 0889565 8100 7623649 DATE: 950196143 08-29-95 CERTIFICATE OF AMENDMENT OF CERTIFICATE OF INCORPORATION OF INSITUFORM OF NORTH AMERICA, INC. INSITUFORM OF NORTH AMERICA, INC., a corporation organized and existing under and by virtue of the laws of the State of Delaware (the "Corporation"), pursuant to the provisions of the General Corporation Law of the State of Delaware (the "GCL") does hereby certify as follows: FIRST: The Certificate of Incorporation is hereby amended by deleting the first paragraph of Article Fourth in its present form and substituting therefor a new paragraph in the following form: FOURTH: The Corporation shall be authorized to issue twenty-eight million two hundred fifty thousand (28,250,000) shares consisting of twenty-five million (25,000,000) Class A common shares par value One Cent ($0.01) per share; one million two hundred fifty thousand (1,250,000) Class B common shares; par value One Cent ($0.01) per share; and two million (2,000,000) preferred share, par value Ten Cents ($0.10) per share. SECOND: The amendment to the Certificate of Incorporation of the Corporation set forth in this Certificate of Amendment has been duly adopted in accordance with the applicable provisions of Section 242 of the GCL (a) the Board of Directors of the Corporation having duly adopted resolutions setting forth such amendment and declaring its advisability at a meeting of the Board of Directors of the Corporation duly called and held on March 27, 1990 in conformity with the By-laws of the Corporation, and (b) the stockholders of the Corporation having duly adopted such amendment by the affirmative vote of the holders of a majority of the outstanding stock entitled to vote thereon, and the affirmative vote of a majority of holders of the class A common stock, $.01 par value, of the Corporation, voting as a class, on August 24, 1990, taken at the Corporation's annual meeting of stockholders duly called and held upon notice in accordance with Section 222 of the GCL. THIRD: The capital of the Corporation will not be reduced under or by reason of the amendments to its Certificate of Incorporation set forth in this Certificate of Amendment. IN WITNESS WHEREOF, the Corporation has caused this certificate to be executed on its behalf by James D. Krugman, its Chairman of the Board, and attested by Howard Kailes, its Secretary, as of this 24th day of August 1990. /s/ JAMES D. KRUGMAN James D. Krugman Chairman of the Board [Corporate Seal] ATTEST: /s/ HOWARD KAILES Howard Kailes Secretary STATE OF NEW JERSEY ) ) COUNTY OF BERGEN ) BEFORE ME, the undersigned authority, on this day personally appeared JAMES D. KRUGMAN, Chairman of the Board, and Howard Kailes, Secretary, of INSITUFORM OF NORTH AMERICA, INC., known to me to be the persons and officers whose names are subscribed to the foregoing instrument, and acknowledged to me that they executed same for the purposes therein expressed and in the capacity therein stated as the act and deed of said corporation. GIVEN UNDER MY HAND AND SEAL OF OFFICE, THIS 24TH DAY OF AUGUST, 1990. /S/ Carmen Aiello Notary Public in and for the State of New Jersey My Commission Expires: CARMEN AIELLO A Notary Public of New Jersey My Commission Expires 2/28/96 STATE OF DELAWARE PAGE 1 OFFICE OF THE SECRETARY OF STATE I, EDWARD J. FREEL, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO HEREBY CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF AMENDMENT OF "INSITUFORM OF NORTH AMERICA, INC.", CHANGING ITS NAME FROM "INSITUFORM OF NORTH AMERICA, INC." TO "INSITUFORM TECHNOLOGIES, INC.", FILED IN THIS OFFICE ON THE NINTH DAY OF DECEMBER, A.D. 1992, AT 11:40 O'CLOCK A.M. [Seal] /s/ Edward J. Freel Edward J. Freel, Secretary of State AUTHENTICATION: 0889565 8100 7623648 DATE: 950196143 08-29-95 CERTIFICATE OF AMENDMENT OF CERTIFICATE OF INCORPORATION OF INSITUFORM OF NORTH AMERICA, INC. INSITUFORM OF NORTH AMERICA, INC., a corporation organized and existing under the General Corporation Law of the State of Delaware (the "Corporation") pursuant to the provisions of the General Corporation Law of the State of Delaware (the "GCL") does hereby certify as follows: FIRST: The Certificate of Incorporation is hereby amended as follows: (1) Article "FIRST" of the Certificate of Incorporation is hereby amended in its entirety to read as follows: "FIRST: The name of the corporation is INSITUFORM TECHNOLOGIES, INC." (2) Article "FOURTH" of the Certificate of Incorporation is hereby amended in its entirety to read as follows: "FOURTH: The corporation shall be authorized to issue twenty-seven million (27,000,000) shares, consisting of twenty-five million (25,000,000) Class A Common shares, par value one cent ($0.01) per share; and two million (2,000,000) Preferred shares, par value ten cents ($0.10) per share ("Preferred Stock"). The shares of Preferred Stock shall be issued in one or more series designated by the Board of Directors without further shareholder action and shall bear such terms and designation as the Board of Directors may fix, including dividend rates, redemption rights, conversion rights, liquidation preferences, voting rights (provided that the Board of Directors may designate that the holders of one or more series of Preferred Stock shall be entitled as a series to elect one director and the Board of Directors may at its discretion grant the holders of one or more series of the corporation's shares of Preferred Stock the right to elect additional directors in the event that dividends on such series shall be in arrears) and such other terms as the Board of Directors shall determine. Any shares of Preferred Stock reacquired by the corporation may be reissued without further shareholder approval." (3) Article "SIXTH" of the Certificate of Incorporation is hereby amended in its entirety to read as follows: "SIXTH: The following provisions are inserted for the management of the business and for the conduct of the affairs of the corporation, and for further definition, limitation and regulation of the powers of the corporation and of its directors and shareholders: (1) The number of directors of the corporation shall be such as from time to time shall be fixed by, or in the manner provided in, the by-laws; provided, however, that the number of directors of the corporation shall not be less than six (6) nor shall the number of directors of the corporation exceed fifteen (15). Election of directors need not be by ballot unless the by-laws so provide. (2) Effective as of the Effective Date (as such term is defined in that certain Agreement, dated July 3, 1992, among the corporation, INA Acquisition Corp. and Insituform Group Limited), as it may be amended from time to time (the "Acquisition Agreement"), the Board of Directors shall be divided into three classes, designated Class I, Class II and Class III, as nearly equal in number as possible. Members of all three classes will be appointed on the Effective Date by the Board of Directors in accordance with the terms of the Acquisition Agreement. The initial term of office of directors of Class I shall expire at the annual meeting of shareholders in 1993; that of Class II shall expire at the annual meeting of shareholders in 1994; and that of Class III shall expire at the annual meeting of shareholders in 1995. At each succeeding annual meeting of shareholders beginning in 1993, successors to the class of directors whose term expires at that annual meeting shall be elected for a three-year term. Additional directorships resulting from an increase in number of directors shall be appointed among the classes as equally as possible. Vacancies, created from an increase in the size of the Board of Directors, shall be filled by the affirmative vote of a majority of the Board of Directors then in office, or such greater affirmative vote of directors as may be specified from time to time in the By-laws of the corporation, provided that a quorum is present, and any other vacancy occurring in the Board of Directors may be filled by a majority of the directors then in office, which appointments shall be made in accordance with Section 7.3 of the Acquisition Agreement so long as it is in effect, even if less than a quorum, or by a sole remaining director. Any additional director of any class elected to fill a vacancy resulting from an increase in such class shall hold office for a term that shall coincide with the remaining term of that class, but in no case will a decrease in the number of directors shorten the term of any incumbent director. A director shall hold office until the annual meeting for the year in which his term expires and until his successor shall be elected and shall qualify, subject, however, to prior death, resignation, retirement, disqualification or removal from office. Any director elected to fill a vacancy not resulting from an increase in the number of directors shall have the same remaining term as that of his predecessor. Notwithstanding any provision of this Article SIXTH, whenever the holders of any one or more series of Preferred Stock issued by the corporation shall have the right, voting separately by class or series, to elect directors at an annual or special meeting of shareholders or any class or series, the election, term of office, filling of vacancies and other features of such directorships shall be governed by the terms of this Certificate of Incorporation or the resolution or resolutions adopted by the Board of Directors pursuant to Article FOURTH hereof applicable thereto, and such directors so elected shall not be divided into classes pursuant to this Article SIXTH unless expressly provided by such terms. (3) The Board of Directors shall have power without the assent or vote of the shareholders: (a) To make, alter, amend, change, add to or repeal the by-laws of the corporation; to fix and vary the amount to be reserved for any proper purpose; to authorize and cause to be executed mortgages and liens upon all or any part of the property of the corporation; to determine the use and disposition of any surplus or net profits; and to fix the times for the declaration and payment of dividends. (b) To determine from time to time whether, and to what extent, and at what times and places, and under what conditions the accounts and books of the corporation (other than the stock ledger) or any of them, shall be open to the inspection of the shareholders. (4) The directors at their discretion may submit any contract or act for approval or ratification at any annual meeting of shareholders or at any meeting of the shareholders called for the purpose of considering any such act or contract, and any contract or act that shall be approved or be ratified by the vote of the holders of a majority of the stock of the corporation which is represented in person or by proxy at such meeting and entitled to vote thereat (provided that a lawful quorum of shareholders be there represented in person or by proxy) shall be as valid and as binding upon the corporation and upon all the shareholders as though it had been approved or ratified by every shareholder of the corporation, whether or not the contract or act would otherwise be open to legal attack because of directors' interest, or for any other reason. (5) In addition to the powers and authorities hereinbefore or by statute expressly conferred upon them, the directors are hereby empowered to exercise all such powers and do all such acts and things as may be exercised or done by the corporation; subject, nevertheless, to the provisions of the statutes of Delaware, of this certificate, and to any by-laws from time to time made by the shareholders; provided, however, that no by-laws so made shall invalidate any prior act of the directors which would have been valid if such by-law had not been made." (4) The Certificate of the Incorporation is hereby amended to add a new Article "ELEVENTH" after Article "TENTH" in the following form: "ELEVENTH: Subject to the rights of the holders of any class or series of Preferred Stock expressly set forth in this Certificate of Incorporation, the Certificate of Designation related to such class or series of Preferred Stock or as otherwise required by law, any action required or permitted to be taken by the shareholders of the corporation must be effected exclusively at a duly called annual or special meeting of such shareholders and may not be effected by any consent in writing by such shareholders. This Article ELEVENTH may not be repealed or amended in any respect, and no provision inconsistent with this Article ELEVENTH may be adopted, unless such action is approved by the affirmative vote of the holders of not less than eighty (80) percent of the combined voting power of the then outstanding shares of capital stock of the corporation entitled to vote generally in the election of directors." SECOND: The amendments to the Certificate of Incorporation of the Corporation set forth in this Certificate of Amendment have been duly adopted in accordance with the applicable provisions of Section 242 of the GCL (a) the Board of Directors of the Corporation having duly adopted resolutions setting forth such amendments and declaring their advisability at a meeting of the Board of Directors of the Corporation duly called and held on September 15, 1992 in conformity with the By-laws of the Corporation, and (b) the stockholders of the Corporation having duly adopted such amendments by the affirmative vote of the holders of the majority of the outstanding stock entitled to vote thereon, and the affirmative vote of a majority of the outstanding stock of each class entitled to vote thereon, at a special meeting of stockholders duly called and held on December 3, 1992 upon notice in accordance with Section 222 of the GCL. IN WITNESS WHEREOF, INSITUFORM OF NORTH AMERICA, INC. has caused this certificate to be signed and attested by duly authorized officers as of the 9th day of December, 1992. INSITUFORM OF NORTH AMERICA, INC. BY:/s/ James D. Krugman James D. Krugman Chairman of the Board ATTEST: /s/ Howard Kailes Howard Kailes Secretary State of Delaware Office of the Secretary of State I, EDWARD J. FREEL, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO HEREBY CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF DESIGNATION OF "INSITUFORM TECHNOLOGIES, INC.", FILED IN THIS OFFICE ON THE SIXTH DAY OF SEPTEMBER, A.D. 1995, AT 4:30 O'CLOCK P.M. A CERTIFIED COPY OF THIS CERTIFICATE HAS BEEN FORWARDED TO THE KENT COUNTY RECORDER OF DEEDS FOR RECORDING. EDWARD J. FREEL [SEAL] Edward J. Freel, Secretary of State 0889565 8100 AUTHENTICATION: 7631477 950202303 DATE: 09-07-95 CERTIFICATE ELIMINATING REFERENCE TO SERIES C CUMULATIVE, NON-VOTING PREFERRED STOCK FROM THE CERTIFICATE OF INCORPORATION OF INSITUFORM TECHNOLOGIES, INC. Pursuant to Section 151(g) of the General Corporation Law of the State of Delaware We, Jean-Paul Richard, President and Chief Executive Officer, and Howard Kailes, Secretary of Insituform Technologies, Inc., a corporation organized and existing under the General Corporation Law of the State of Delaware, in accordance with the provisions of Section 103 thereof, DO HEREBY CERTIFY: That in accordance with the provisions of Section 151(g) of the General Corporation Law of the State of Delaware, its Board of Directors on September , 1995, adopted the following resolutions eliminating its Series C Cumulative, Non-Voting Preferred Stock, $.10 par value: WHEREAS, pursuant to a Certificate of Designation filed on behalf of the Corporation with the Secretary of State of Delaware on December 2, 1988, this Corporation created its Series C Cumulative, Non-Voting Preferred Stock, $.10 par value (the "Series C Cumulative, Non-Voting Preferred Stock"); and WHEREAS, none of the authorized Series C Cumulative, Non-Voting Preferred Stock so designated is outstanding; and WHEREAS, none of the said Series C Cumulative, Non-Voting Preferred Stock of the Corporation will be issued; NOW THEREFORE, BE IT RESOLVED, that the appropriate officers of the Corporation be and hereby are authorized and directed to file a certificate setting forth this resolution with the Secretary of State of the State of Delaware pursuant to the provisions of Section 151(g) of the General Corporation Law of the State of Delaware for the purpose of eliminating from the certificate of incorporation of the Corporation all reference to the said Series C Cumulative, Non-Voting Preferred Stock. IN WITNESS WHEREOF, the Corporation has caused its corporate seal to be hereunder affixed and this Certificate of Designation to be signed by Jean-Paul Richard, its President and Chief Executive Officer, and attested to by Howard Kailes, its Secretary, on the 6th day of September, 1995. INSITUFORM TECHNOLOGIES, INC. By /s/ Jean-Paul Richard Jean-Paul Richard, President and Chief Executive Officer Attest: /s/ Howard Kailes Howard Kailes, Secretary OFFICE OF THE SECRETARY OF STATE I, EDWARD J. FREEL, SECRETARY OF THE STATE OF DELAWARE, DO HEREBY CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF AMENDMENT OF "INSITUFORM TECHNOLOGIES, INC.", FILED IN THIS OFFICE ON THE TWENTY-FIFTH DAY OF OCTOBER, A.D. 1995, AT 9 0'CLOCK A.M. A CERTIFIED COPY OF THIS CERTIFICATE HAS BEEN FORWARDED TO THE KENT COUNTY RECORDER OF DEEDS FOR RECORDING. s/Edward J. Freel [Seal] - -------------------------------- Edward J. Freel, Secretary of State 0889565 8100 AUTHENTICATION: 7686230 DATE: 10-25-95 CERTIFICATE OF AMENDMENT OF CERTIFICATE OF INCORPORATION OF INSITUFORM TECHNOLOGIES, INC. INSITUFORM TECHNOLOGIES, INC., a corporation organized and existing under the General Corporation Law of the State of Delaware (the "Corporation") pursuant to the provisions of the General Corporation Law of the State of Delaware (the "GCL") does hereby certify as follows: FIRST: The Certificate of Incorporation is hereby amended as follows: (1) Article "FOURTH" of the Certificate of Incorporation is hereby amended in its entirety to read as follows: "FOURTH: The corporation shall be authorized to issue forty-two million (42,000,000) shares, consisting of forty million (40,000,000) Class A Common shares, par value one cent ($0.01) per share; and two million (2,000,000) Preferred shares, par value ten cents ($0.10) per share ("Preferred Stock"). The shares of Preferred Stock shall be issued in one or more series designated by the Board of Directors without further shareholder action and shall bear such terms and designation as the Board of Directors may fix, including dividend rates, redemption rights, conversion rights, liquidation preferences, voting rights (provided that the Board of Directors may designate that the holders of one or more series of Preferred Stock shall be entitled as a series to elect one director and the Board of Directors may at its discretion grant the holders of one or more series of the corporation's shares of Preferred Stock the right to elect additional directors in the event that dividends on such series shall be in arrears) and such other terms as the Board of Directors shall determine. Any shares of Preferred Stock reacquired by the corporation may be reissued without further shareholder approval." (2) Article "SIXTH" of the Certificate of Incorporation is hereby amended in its entirety to read as follows: "SIXTH: The following provisions are inserted for the management of the business and for the conduct of the affairs of the corporation, and for further definition, limitation and regulation of the powers of the corporation and of its directors and shareholders: (1) The number of directors of the corporation shall be such as from time to time shall be fixed by, or in the manner provided in, the by-laws; provided, however, that the number of directors of the corporation shall not be less than six (6) nor shall the number of directors of the corporation exceed fifteen (15). Election of directors need not be by ballot unless the by-laws so provide. (2) Effective as of the Effective Date (as such term is defined in that certain Agreement, dated July 3, 1992, among the corporation, INA Acquisition Corp. and Insituform Group Limited), as it may be amended from time to time (the "Acquisition Agreement"), the Board of Directors shall be divided into three classes, designated Class I, Class II and Class III, as nearly equal in number as possible. Members of all three classes will be appointed on the Effective Date by the Board of Directors in accordance with the terms of the Acquisition Agreement. The initial term of office of directors of Class I shall expire at the annual meeting of shareholders in 1993; that of Class II shall expire at the annual meeting of shareholders in 1994; and that of Class III shall expire at the annual meeting of shareholders in 1995. At each succeeding annual meeting of shareholders beginning in 1993, successors to the class of directors whose term expires at that annual meeting shall be elected for a three-year term. Additional directorships resulting from an increase in number of directors shall be appointed among the classes as equally as possible. Vacancies, created from an increase in the size of the Board of Directors, shall be filled by the affirmative vote of a majority of the Board of Directors then in office, or such greater affirmative vote of directors as may be specified from time to time in the By-laws of the corporation, provided that a quorum is present, and any other vacancy occurring in the Board of Directors may be filled by a majority of the directors then in office, which appointments shall be made in accordance with Section 7.3 of the Agreement and Plan of Merger dated as of May 23, 1995 among the corporation, ITI Acquisition Corp. and Insituform Mid-America, Inc. Any additional director of any class elected to fill a vacancy resulting from an increase in such class shall hold office for a term that shall coincide with the remaining term of that class, but in no case will a decrease in the number of directors shorten the term of any incumbent director. A director shall hold office until the annual meeting for the year in which his term expires and until his successor shall be elected and shall qualify, subject, however, to prior death, resignation, retirement, disqualification or removal from office. Any director elected to fill a vacancy not resulting from an increase in the number of directors shall have the same remaining term as that of his predecessor. Notwithstanding any provision of this Article SIXTH, whenever the holders of any one or more series of Preferred Stock issued by the corporation shall have the right, voting separately by class or series, to elect directors at an annual or special meeting of shareholders or any class or series, the election, term of office, filling of vacancies and other features of such directorships shall be governed by the terms of this Certificate of Incorporation or the resolution or resolutions adopted by the Board of Directors pursuant to Article FOURTH hereof applicable thereto, and such directors so elected shall not be divided into classes pursuant to this Article SIXTH unless expressly provided by such terms. (3) The Board of Directors shall have power without the assent or vote of the shareholders: (a) To make, alter, amend, change, add to or repeal the by-laws of the corporation; to fix and vary the amount to be reserved for any proper purpose; to authorize and cause to be executed mortgages and liens upon all or any part of the property of the corporation; to determine the use and disposition of any surplus or net profits; and to fix the times for the declaration and payment of dividends. (b) To determine from time to time whether, and to what extent, and at what times and places, and under what conditions the accounts and books of the corporation (other than the stock ledger) or any of them, shall be open to the inspection of the shareholders. (4) The directors at their discretion may submit any contract or act for approval or ratification at any annual meeting of shareholders or at any meeting of the shareholders called for the purpose of considering any such act or contract, and any contract or act that shall be approved or be ratified by the vote of the holders of a majority of the stock of the corporation which is represented in person or by proxy at such meeting and entitled to vote thereat (provided that a lawful quorum of shareholders be there represented in person or by proxy) shall be as valid and as binding upon the corporation and upon all the shareholders as though it had been approved or ratified by every shareholder of the corporation, whether or not the contract or act would otherwise be open to legal attack because of directors' interest, or for any other reason. (5) In addition to the powers and authorities hereinbefore or by statute expressly conferred upon them, the directors are hereby empowered to exercise all such powers and do all such acts and things as may be exercised or done by the corporation; subject, nevertheless, to the provisions of the statutes of Delaware, of this certificate, and to any by-laws from time to time made by the shareholders; provided, however, that no by-laws so made shall invalidate any prior act of the directors which would have been valid if such by-law had not been made." SECOND: The amendments to the Certificate of Incorporation of the Corporation set forth in this Certificate of Amendment have been duly adopted in accordance with the applicable provisions of Section 242 of the GCL (a) the Board of Directors of the Corporation having duly adopted resolutions setting forth such amendments and declaring their advisability at a meeting of the Board of Directors of the Corporation duly called and held on August 1, 1995 in conformity with the By-laws of the Corporation, and (b) the stockholders of the Corporation having duly adopted such amendments by the affirmative vote of the holders of the majority of the outstanding stock entitled to vote thereon at the annual meeting of stockholders duly called and held on October 12, 1995 upon notice in accordance with Section 222 of the GCL. IN WITNESS WHEREOF, INSITUFORM TECHNOLOGIES, INC. has caused this certificate to be signed and attested by duly authorized officers as of the 25th day of October, 1995. INSITUFORM TECHNOLOGIES, INC. By s/James D. Krugman - --------------------------- James D. Krugman Chairman of the Board ATTEST: s/Howard Kailes - ------------------------- Howard Kailes Secretary corp\ina\misc\exh.4ii EX-3.II 5 EXHIBIT 4(iv) BY-LAWS OF INSITUFORM TECHNOLOGIES, INC. ARTICLE I - OFFICES The principal offices of the corporation in the State of Delaware shall be located in the City of Dover, County of Kent. The Corporation may have such other offices, either within or without the State of incorporation as the board of directors may designate or as the business of the corporation may from time to time require. ARTICLE II - STOCKHOLDERS 1. ANNUAL MEETING. The annual meeting of the stockholders shall be held at such time and upon such date during the month of June in each year as the Board of Directors may determine, for the purpose of electing directors and for the transaction of such other business as may come before the meeting. If the day fixed for the annual meeting shall be a legal holiday such meeting shall be held on the next succeeding business day. 2. SPECIAL MEETINGS. Special meetings of the stockholders, for any purpose or purposes, unless otherwise prescribed by statute, may be called by either the chairman of the board, the president or by the directors, and shall be called by the president at the request of the holders of not less than fifty per cent of all the outstanding shares of the Corporation entitled to vote at the meeting. 3. PLACE OF MEETING. The directors may designate any place, either within or without the State unless otherwise prescribed by statute, as the place of meeting for any annual meeting or for any special meeting called by the directors. A waiver of notice signed by all stockholders entitled to vote at a meeting may designate any place, either within or without the state unless otherwise prescribed by statute, as the place for holding such meeting. If no designation is made, or if a special meeting be otherwise called, the place of meeting shall be the principal office of the corporation. 4. NOTICE OF MEETING. Written or printed notice stating the place, day and hour of the meeting and, in the case of a special meeting, the purpose or purposes for which the meeting is called, shall be delivered not less than ten nor more than fifty days before the date of the meeting, either personally or by mail, by or at the direction of either the chairman of the board, the president, the secretary, or the officer or persons calling the meeting, to each stockholder of record entitled to vote at such meeting. If mailed, such notice shall be deemed to be delivered when deposited in the United States mail, addressed to the stockholder at his address as it appears on the stock transfer books of the corporation, with postage thereon pre-paid. 5. CLOSING OF TRANSFER BOOKS OR FIXING OF RECORD DATE. For the purpose of determining stockholders entitled to notice of or to vote at any meeting of stockholders or any adjournment thereof, or stockholders entitled to receive payment of any dividend, or in order to make a determination of stockholders for any other proper purpose, the directors may fix in advance a date as the record date for any such determination of stockholders, such date in any case to be not more than sixty days and, in case of a meeting of stockholders, not less than ten days prior to the date on which the particular action requiring such determination of stockholders is to be taken. If the stock transfer books are not closed and no record date is fixed for the determination of stockholders entitled to notice of or to vote at a meeting of stockholders, or stockholders entitled to receive payment of a dividend, the date on which notice of the meeting is mailed or the date on which the resolution of the directors declaring such dividend is adopted, as the case may be, shall be the record date for such determination of stockholders. When a determination of stockholders entitled to vote at any meeting of stockholders has been made as provided in this section, such determination shall apply to any adjournment thereof. 6. VOTING LISTS. The officer or agent having charge of the stock transfer books for shares of the corporation shall make, at least ten days before each meeting of stockholders, a complete list of the stockholders entitled to vote at such meeting, or any adjournment thereof, arranged in alphabetical order, with the address of and the number of shares held by each, which list, for a period of ten days prior to such meeting, shall be kept on file at the principal office of the corporation and shall be subject to inspection by any stockholder at any time during usual business hours. Such list shall also be produced and kept open at the time and place of the meeting and shall be subject to the inspection of any stockholder during the whole time of the meeting. The original stock transfer book shall be prima facie evidence as to who are the stockholders entitled to examine such list or transfer books or to vote at the meeting of stockholders. 7. QUORUM. At any meeting of stockholders a majority of the outstanding shares of the corporation entitled to vote, represented in person or by proxy, shall constitute a quorum at a meeting of stockholders. If less than said number of the outstanding shares are represented at a meeting, a majority of the shares so represented may adjourn the meeting from time to time without further notice. At such adjourned meeting at which a quorum shall be present or represented, any business may be transacted which might have been transacted at the meeting as originally notified. The stockholders present at a duly organized meeting may continue to transact business until adjournment, notwithstanding the withdrawal of enough stockholders to leave less than a quorum. 8. PROXIES. At all meetings of stockholders, a stockholder may vote by proxy executed in writing by the stockholder or by his duly authorized attorney-in-fact. Such proxy shall be filed with the secretary of the corporation before or at the time of the meeting. 9. VOTING. Each stockholder entitled to vote in accordance with the terms and provisions of the certificate of incorporation and these by-laws shall be entitled to one vote, in person or by proxy, for each share of stock entitled to vote held by such stockholders. Upon the demand of any stockholder, the vote for directors and upon any question before the meeting shall be by ballot. All elections for directors shall be decided by plurality vote; all other questions shall be decided by majority vote except as otherwise provided by the Certificate of Incorporation or the laws of this State. 10. ORDER OF BUSINESS. The order of business at all meetings of the stockholders, shall be as follows: 1. Roll call. 2. Proof of notice of meeting or waiver of notice. 3. Reading of minutes of preceding meeting. 4. Reports of Officer. 5. Reports of Committees. 6. Election of Directors. 7. Unfinished Business. 8. New Business. ARTICLE III - BOARD OF DIRECTORS 1. GENERAL POWERS. The business and affairs of the corporation shall be managed by its board of directors. The directors shall in all cases act as a board, and they may adopt such rules and regulations for the conduct of their meetings and the management of the corporation, as they may deem proper, not inconsistent with these by-laws and the laws of this State. 2. NUMBER OF DIRECTORS, TENURE AND QUALIFICATIONS. The Board of Directors shall consist of thirteen (13) directors. Such directors (except as hereinafter provided for the filling of vacancies) shall be elected in accordance with the Corporation's Certificate of Incorporation by the stockholders by a plurality vote of the number of shares voting at the meeting at which such election shall take place. 3. REGULAR MEETINGS. A regular meeting of the directors, shall be held without other notice than this by-law immediately after, and at the same place as, the annual meeting of stockholders. The directors may provide, by resolution, the time and place for the holding of additional regular meetings without other notice than such resolution. 4. SPECIAL MEETINGS. Special meetings of the directors may be called by or at the request of the president, the Chairman of the Board, or any two directors. The person or persons authorized to call special meetings of the directors may fix the place either within or without the state or country, for holding any special meeting of the directors called by them. 5. NOTICE. Notice of any special meeting shall be given at least 24 hours previously thereto by written notice delivered personally, or by telegram or telecopy or mailed to each director at his residence or business address. If mailed, such notice shall be deemed to be delivered when deposited in the United States mail so addressed, with postage thereon prepaid. If notice be given by telegram, such notice shall be deemed to be delivered when the telegram is delivered to the telegraph company. The attendance of a director at a meeting shall constitute a waiver of notice of such meeting, except where a director attends a meeting for the express purpose of objecting to the transaction of any business because the meeting is not lawfully called or convened. 6. QUORUM. At any meeting of the directors a majority shall constitute a quorum for the transaction of business, but if less than said number is present at a meeting, a majority of the directors present may adjourn the meeting from time to time without further notice. 7. MANNER OF ACTING. The act of the majority of the directors present at a meeting at which a quorum is present shall be the act of the directors. 8. NEWLY CREATED DIRECTORSHIPS AND VACANCIES. Any vacancy on the Board of Directors and any newly created directorship resulting from an increase in the number of directors may be filled by the directors in accordance with the Corporation's Certificate of Incorporation. 9. REMOVAL OF DIRECTORS. Any or all of the directors may be removed only for cause by vote of the stockholders. 10. RESIGNATION. A director may resign at any time by giving written notice to the board, the president or the secretary of the corporation. Unless otherwise specified in the notice, the resignation shall take effect upon receipt thereof by the board or such officer, and the acceptance of the resignation shall not be necessary to make it effective. 11. COMPENSATION. No compensation shall be paid to directors, as such, for their services, but by resolution of the board a fixed sum and expenses for actual attendance at each regular or special meeting of the board may be authorized. Nothing herein contained shall be construed to preclude any director from serving the corporation in any other capacity and receiving compensation therefor. 12. PRESUMPTION OF ASSENT. A director of the corporation who is present at a meeting of the directors at which action on any corporate matter is taken shall be presumed to have assented to the action taken unless his dissent shall be entered in the minutes of the meeting or unless he shall file his written dissent to such action with the person acting as the secretary of the meeting before the adjournment thereof or shall forward such dissent by registered mail to the secretary of the corporation immediately after the adjournment of the meeting. Such right to dissent shall not apply to a director who voted in favor of such action. 13. EXECUTIVE AND OTHER COMMITTEES. The board, by resolution, may designate from among its members an executive committee and other committees, each consisting of one or more directors. Each such committee shall serve at the pleasure of the board. ARTICLE IV - OFFICERS 1. NUMBER. The officers of the corporation shall be a chairman of the board, a vice chairman of the board,a president, one or more senior vice presidents, one or more vice presidents, a secretary and a treasurer, each of whom shall be elected by the directors. Such other officers and assistant officers as may be deemed necessary may be elected or appointed by the directors. 2. ELECTION AND TERM OF OFFICE. The officers of the corporation to be elected by the directors shall be elected annually at the first meeting of the directors held after each annual meeting of the stockholders. Each officer shall hold office until his successor shall have been duly elected and shall have qualified or until his death or until he shall resign or shall have been removed in the manner hereinafter provided. 3. REMOVAL. Any officer or agent elected or appointed by the directors may be removed by the directors whenever in their judgment the best interests of the corporation would be served thereby, but such removal shall be without prejudice to the contract, if any, of the person so removed. 4. VACANCIES. A vacancy in any office because of death, resignation, removal, disqualification or otherwise, may be filled by the directors for the unexpired portion of the term. 4A. CHAIRMAN OF THE BOARD. The Chairman of the Board shall preside, when present, at all meetings of the Board of Directors and at all meetings of the stockholders and will perform such other duties as may be prescribed from time to time by the Board or these By-laws. 4B. VICE CHAIRMAN OF THE BOARD. In the absence of the Chairman of the Board or in the event of his death, inability or refusal to act, the Vice Chairman of the Board shall perform the duties of the Chairman of the Board and, when so acting, shall have all the powers of and be subject to all the restrictions on the Chairman of the Board. The Vice Chairman of the Board shall perform such other duties as may be prescribed from time to time by the Board or these by-laws. 5. PRESIDENT. The President shall be the chief executive officer of the corporation and, subject to the control of the Board of Directors, shall have general and active management of the business of the corporation, and shall see that all orders and resolutions of the Board and stockholders are carried into effect. He shall have the general authority to execute bonds, deeds and contracts, in the name of the corporation and affix the corporate seal thereto; to sign stock certificates; to cause the employment or appointment of such employees and agents of the corporation as the proper conduct of operations may require, and to fix their compensation, subject to the provisions of these By-laws; to remove or suspend any employee or agent who shall have been employed or appointed under his authority or under authority of an officer subordinate to him; and, in general, to exercise all the powers and authority usually appertaining to the chief executive officer of a corporation. 6. VICE-PRESIDENT. In the absence of the president or in the event of his death, inability or refusal to act, one of the vice-presidents designated by the directors shall perform the duties of the president, and when so acting, shall have all the powers of and be subject to all the restrictions upon the president. The vice-president shall perform such other duties as from time to time may be assigned to him by the president or by the directors. 7. SECRETARY. The secretary shall keep the minutes of the stockholders' and of the directors' meetings in one or more books provided for that purpose, see that all notices are duly given in accordance with the provisions of these by-laws or, as required, be custodian of the corporate records and of the seal of the corporation and keep a register of the post office address of each stockholder which shall be furnished to the secretary by such stockholder, have general charge of the stock transfer books of the corporation and in general perform all duties incident to the office of secretary and such other duties as from time to time may be assigned to him by the president or by the directors. 8. TREASURER. If required by the directors, the treasurer shall give a bond for the faithful discharge of his duties in such sum and with such surety or sureties as the directors shall determine. He shall have charge and custody of and be responsible for all funds and securities of the corporation; receive and give receipts for monies due and payable to the corporation from any source, whatsoever, and deposit all such monies in the name of corporation in such banks, trust companies or other depositories as shall be selected in accordance with these by-laws and in general perform all of the duties incident to the office of treasurer and such other duties as from time to time may be assigned to him by the president or by the directors. 9. SALARIES. The salaries of the officers shall be fixed from time to time by the directors and no officer shall be prevented from receiving such salary by reason of the fact that he is also a director of the corporation. ARTICLE V - CONTRACTS, LOANS, CHECKS AND DEPOSITS 1. CONTRACTS. The directors may authorized any officer or officers, agent or agents, to enter into any contract or execute and deliver any instrument in the name of and on behalf of the corporation, and such authority may be general or confined to specific instances. 2. LOANS. No loans shall be contracted on behalf of the corporation and no evidences of indebtedness shall be issued in its name unless authorized by a resolution of the directors. Such authority may be general or confined to specific instances. 3. CHECKS, DRAFTS, ETC. All checks, drafts or other orders for the payment of money, notes or other evidences of indebtedness issued in the name of the corporation, shall be signed by such officer or officers, agent or agents of the corporation and in such manner as shall from time to time be determined by resolution of the directors. 4. DEPOSITS. All funds of the corporation not otherwise employed shall be deposited from time to time to the credit of the corporation in such banks, trust companies or other depositaries as the directors may select. ARTICLE VI - CERTIFICATES FOR SHARES AND THEIR TRANSFER 1. CERTIFICATES FOR SHARES. Certificates representing shares of the corporation shall be in such form as shall be determined by the directors. Such certificates shall be signed by any of the chairman of the board, or the president, as authorized by the directors and the secretary, or such other officers authorized by law and by the directors. All certificates for shares shall be consecutively numbered or otherwise identified. The name and address of the stockholders, the number of shares and date of issue, shall be entered on the stock transfer books of the corporation. All certificates surrendered to the corporation for transfer shall be cancelled and no new certificate shall be issued until the former certificate for a like number of shares shall have been surrendered and cancelled, except that in case of a lost, destroyed or mutilated certificate a new one may be issued therefor upon such terms and indemnity to the corporation as the directors may prescribe. 2. TRANSFERS OF SHARES. (a) Upon surrender to the corporation or the transfer agent of the corporation of a certificate for shares duly endorsed or accompanied by proper evidence of succession, assignment or authority to transfer, it shall be the duty of the corporation to issue a new certificate to the person entitled thereto, and cancel the old certificate; every such transfer shall be entered on the transfer book of the corporation which shall be kept at its principal office. (b) The corporation shall be entitled to treat the holder of record of any share as the holder in fact thereof, and, accordingly, shall not be bound to recognized any equitable or other claim to or interest in such share on the part of any other person whether or not it shall have express or other notice thereof, except as expressly provided by the laws of this state. ARTICLE VII - FISCAL YEAR The fiscal year of the corporation shall begin on the first day of January in each year. ARTICLE VIII - DIVIDENDS The directors may from time to time declare, and the corporation may pay, dividends on its outstanding shares in the manner and upon the terms and conditions provided by law. ARTICLE IX - SEAL The directors shall provide a corporate seal which shall be circular in form and shall have inscribed thereon the name of the corporation, the state of incorporation, year of incorporation and the words, "Corporate Seal". ARTICLE X - WAIVER OF NOTICE Unless otherwise provided by law, whenever any notice is required to be given to any stockholder or director of the corporation under the provisions of these by-laws or under the provisions of the articles of incorporation, a waiver thereof in writing, signed by the person or persons entitled to such notice, whether before or after the time stated therein, shall be deemed equivalent to the giving of such notice. ARTICLE XI - AMENDMENTS Except as otherwise provided by law, the Board of Directors may adopt, alter, amend or repeal the by-laws of the Corporation, provided, however, that the stockholders, representing a majority of all the shares issued and outstanding at any annual stock- holders' meeting or at any special stockholders' meeting, may repeal, alter or amend by-laws adopted by the Board or Directors and may adopt new by-laws; provided, further, however, that the size of the Board of Directors, as set forth in Section 2 of Article III, may only be amended by a vote of at least 80% of the members of the Board of Directors or by a vote of the stockholders, representing a majority of all of the shares issued and outstanding, at any annual stockholders' meeting or at any special stockholders' meeting. EX-5 6 EXHIBIT 5 KRUGMAN, CHAPNICK & GRIMSHAW Park 80 West - Plaza Two Saddle Brook, New Jersey 07663 (201) 845-3434 November 2, 1994 Insituform Technologies, Inc. 1770 Kirby Parkway Suite 300 Memphis, Tennessee 38138 Dear Sirs: We have acted as counsel for Insituform Technologies, Inc., a Delaware corporation (the "Company"), in connection with the registration statement on Form S-8 being filed by the Company under the Securities Act of 1933 with respect to 449,236 shares (the "Shares") of the Company's class A common stock, $.01 par value, which have been or are to be offered by the Company to its employees and consultants pursuant to the Insituform Mid-America, Inc. Stock Option Plan (the "Plan"). In connection with such registration statement, we have examined such records and documents and such questions of law as we have deemed appropriate for purposes of this opinion. On the basis of such examination, we advise you that in our opinion: (1) the Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Delaware; and (2) the Shares have been duly and validly authorized and, when issued and paid for in accordance with the terms of the Plan and stock options duly granted or to be granted thereunder, will be validly issued, fully paid and non- assessable. We hereby consent to the filing of this opinion as an exhibit to the foregoing registration statement. Very truly yours, s/Krugman, Chapnick & Grimshaw KRUGMAN, CHAPNICK & GRIMSHAW -----END PRIVACY-ENHANCED MESSAGE-----