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EXHIBIT 10.29
REGISTRATION RIGHTS AGREEMENT
Registration Rights Agreement, dated as of September 1, 1995 among
Insituform Technologies, Inc., a Delaware corporation (the "Company"),
Xxxxxx X. Xxxxxxxxx ("Xxxxxxxxx") and Xanadu Investments, L.P. ("Xanadu"),
(Xxxxxxxxx and Xanadu are individually referred to herein as a "Shareholder"
and collectively referred to herein as the "Shareholders").
Pursuant to the Agreement and Plan of Merger, dated as of May 23, 1995,
among the Company, ITI Acquisition Corp., a Delaware corporation ("ITI Sub"),
and Insituform Mid-America, Inc., a Delaware corporation ("IMA") (as it may be
amended from time to time, the "Merger Agreement"), the Company is required to
use its best efforts to enter into this Registration Rights Agreement with the
Shareholders. The Shareholders desire to enter into this Agreement with the
Company.
Accordingly, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.1. Definitions. Terms defined in or pursuant to the Merger
Agreement are used herein as therein defined unless otherwise defined herein.
In addition, the following terms, as used herein, have the following meanings:
"Affiliate" means an "affiliate" of the subject referenced within the
meaning of Rule 145 under the Securities Act.
"Business Day" means a day other than a Saturday, Sunday or other day
on which commercial banks in New York, New York are authorized or required by
law to close.
"Commission" means the U.S. Securities and Exchange Commission.
"Demand Registration" means a Demand Registration as defined in
Section 2.1.
"ITI Class A Common Stock" means Class A Common Stock, par value $.01
per share, of the Company.
"Incidental Registration" means an Incidental Registration as defined
in Section 2.2.
"Independent Directors" shall mean those directors of the Company that
are not Shareholders or affiliates of any Shareholder.
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"Registration Rights Commencement Date" means the date of the first
publication of the operating results of the Company covering a period after the
merger of ITI Sub with and into IMA of at least 30 days.
"Registrable Securities" means shares of ITI Class A Common Stock;
provided that any such securities shall cease to be Registrable Securities with
respect to a proposed offer or sale thereof (i) when a registration statement
with respect to the sale of such securities shall have become effective under
the Securities Act and such securities shall have been disposed of in
accordance with the plan of distribution set forth in such registration
statement or (ii) such securities shall have been disposed of in accordance
with Rule 144.
"Securities Act" means the Securities Act of 1933, as amended, or any
successor statute.
"Underwriter" means a securities dealer who purchases any Registrable
Securities as principal and not as part of such dealer's market-making
activities.
ARTICLE II
REGISTRATION RIGHTS
SECTION 2.1. Demand Registration. (a) Subject to the terms and
conditions of this Agreement, from and after the Registration Rights
Commencement Date, each Shareholder may make a written request for registration
under the Securities Act of all or part of the Registrable Securities
beneficially or of record owned by it or any Affiliate of it (a "Demand
Registration"); provided that the Company shall not be obligated (i) to effect
more than one Demand Registration for each Shareholder unless the Company
qualifies and is entitled to use a Registration Statement on Form S-3 in which
case each Shareholder shall be entitled to a total of three Demand
Registrations, (ii) to effect a Demand Registration for less than 500,000
shares of ITI Class A Common Stock, (iii) to effect a Demand Registration if
such written request is given after December 9, 1998, (iv) to effect a Demand
Registration for any Registrable Securities if, in the written opinion of
counsel to the Company, such Registrable Securities could, within three months
of the date of a Shareholder's request but based on the facts and circumstances
known at the date of such request, be publicly offered and sold without
registration under the Securities Act (and such Shareholder shall provide such
information as counsel to the Company shall reasonably request in connection
with such opinion), (v) to effect a Demand Registration if a Demand
Registration has been effectuated within the prior 6 months, (vi) to effect a
Demand Registration during the period commencing on the date of delivery of the
Incidental Registration Notice (as defined below) and ending on the earlier of
the 20th day after the effectiveness of the registration statement with respect
to which such Incidental Registration Notice relates or the date the Company
abandons plans to pursue the registration contemplated by such registration
statement, (vii) to effect a Demand Registration during a period in which
the Company would be required to undertake an audit in order to have available
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for inclusion in the registration statement current financial statements as
required in accordance with the Securities Act, unless the selling Shareholder
undertakes to bear the costs of such audit, or (viii) to register the shares of
any Shareholder Affiliate not a party hereto unless such Affiliate shall agree
in writing reasonably satisfactory to the Company to be bound by the provisions
of this Agreement relating to such registration as if such Affiliate were a
Shareholder hereunder. Such request will specify the number of Registrable
Securities proposed to be sold and will also specify the intended method of
disposition thereof. A registration will not count as a Demand Registration
until it has become effective.
(b) Neither the Company nor the Shareholder(s) not initiating the Demand
Registration shall have the right to include any of the Company's securities in
any registration initiated as a Demand Registration unless: (i) such securities
are of the same class as the Registrable Securities included in such
registration; (ii) if any of the Registrable Securities covered by such
registration are to be sold in an underwritten offering, the Company or such
Shareholder(s), as applicable, agree in writing to sell its securities on the
same terms and conditions as apply to the Registrable Securities being sold; and
(iii) if any of the Registrable Securities covered by such registration are to
be sold in an underwritten offering, the managing underwriters shall not have
advised the Company or the Shareholder initiating the Demand Registration that,
in their opinion, the total number or dollar amount of the securities requested
to be included in such registration by the Company and/or such other
Shareholder(s), together with the Registrable Securities demanded to be
registered hereunder, exceeds the number of securities which can be sold in such
offering.
(c) Subject to such other arrangements as the Company may agree by
letter with any Shareholder, the Company shall have the right to select the
investment banker or bankers and managers to administer the offering; provided,
however, that such investment banker or bankers and manager shall be reasonably
satisfactory to holders of a majority of the shares of Registrable Securities
which are held by Shareholders and which the Company has been requested to
register under this Section 2.1. The Shareholder initiating the Demand
Registration shall (together with the Company and, if other Shareholders are
participating in such Demand Registration, the other Shareholders) enter into
an underwriting agreement in such customary form as shall have been negotiated
and agreed to by the Company with the Underwriter or Underwriters selected for
such underwriting by the Company.
SECTION 2.2. Incidental Registration. (a) Subject to the terms and
conditions of this Agreement, including Section 2.1(b) hereof, during the
period commencing on the Registration Rights Commencement Date and ending on
December 9, 1998, if the Company proposes to file a Registration Statement
under the Securities Act relating to an underwritten public offering of shares
of ITI Class
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A Common Stock (other than a Registration Statement on Form S-4 or Form S-8) to
be offered for its own account or the account of others (including any Demand
Registration pursuant to Section 2.1), the Company shall (i) provide written
notice of the proposed offering to each Shareholder, setting forth a description
of the intended method of distribution (the "Incidental Registration Notice"),
and (ii) use its reasonable best efforts to register pursuant to such
Registration Statement (an "Incidental Registration") such number of shares of
Registrable Securities as shall be specified in a written request by any such
Shareholder made within 20 days after receipt of such written notice from the
Company, subject to such limits as may have been set by the managing Underwriter
on the number of Registrable Securities which may be included in the proposed
offering, and subject to Section 2.2(b) below; provided, however, that, for
purposes of this sentence, the use by the Company of its "reasonable best
efforts" shall not require the Company to reduce the amount or sale price of the
securities it proposes to distribute for its own account. The Company shall not
be obligated to effect an Incidental Registration for any Registrable Securities
if in the written opinion of counsel to the Company, such Registrable Securities
could, within three months of the date of a Shareholder's request but based on
the facts and circumstances known at the date of such request, be publicly
offered and sold without registration under the Securities Act (and such
Shareholder shall provide such information as counsel to the Company shall
reasonably request in connection with such opinion).
(b) Each Shareholder participating in such Incidental Registration
shall (together with the Company and the other holders of securities of the
Company distributing their securities through such underwriting) enter into an
underwriting agreement in such form as shall have been negotiated and agreed to
by the Company with the Underwriter or Underwriters selected for such
underwriting by the Company. Notwithstanding any other provision of this
Section 2.2, if the managing Underwriter determines that marketing factors
require a limitation of the number of shares to be underwritten under this
Section 2.2, the Underwriter may limit the number of Registrable Securities to
be included in the registration and underwriting under this Section 2.2, such
limitation shall be allocated pro rata among all requesting Shareholders (under
this Section 2.2) based on the proportion that the number of Registrable
Securities proposed to be registered by each Shareholder under this Section
2.2 bears to the total number of Registrable Securities proposed to be
registered under this Section 2.2 by all Shareholders; provided, that no such
reduction may reduce the securities being offered by the Company for its own
account.
(c) Notwithstanding the foregoing, if, at any time after giving written
notice to the Shareholders of its proposal to file a Registration Statement
pursuant to Section 2.2(a) hereof and prior to the effective date of such
Registration Statement, the Company shall determine for any reason not to
register the securities proposed to be covered thereby, the Company may, at its
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election, give written notice of such determination to each requesting
Shareholder and thereupon shall be relieved of its obligation to register any
Registrable Securities in connection with such registration (but not from its
obligation to pay certain expenses in connection therewith as provided in
Section 3.2), without prejudice, however, to the rights each requesting
Shareholder otherwise may have to request that such registration be effected
under Section 2.1.
SECTION 2.3 Holdback Agreement. If any registration of Registrable
Securities shall be in connection with an underwritten public offering, each
Shareholder participating in such offering agrees not to effect any public sale
or distribution, including any sale pursuant to Rule 144 or Rule 144A or
any successor provisions under the Securities Act, of any Registrable
Securities, and not to effect any such public sale or distribution of any other
equity security of the Company or of any security convertible into or
exchangeable or exercisable for any equity security of the Company (in each
case, other than as part of such underwritten public offering) during the seven
days prior to, and during the 90-day period beginning on, the effective date of
such registration statement (except as part of such registration), provided
that such Shareholder has received written notice of such registration at least
two Business Days prior to the anticipated beginning of the seven day period
referred to above. The 90-day period referred to in this Section 2.3 may be
extended for such longer period as the Underwriter may reasonably request. The
foregoing provisions shall not apply to any Shareholder if such Shareholder is
prevented by applicable statute or regulation, or by action of any governmental
authority, from entering into or performing any such agreement; provided,
however, that any such Shareholder shall undertake not to effect any such
public sale or distribution of the applicable class of Registrable Securities
during such period unless it has provided at least 45 days' prior written
notice of such sale or distribution to the underwriter or underwriters.
ARTICLE III
REGISTRATION PROCEDURES
SECTION 3.1 Filings; Information. Whenever any Shareholder requests
that any Registrable Securities be registered pursuant to Section 2.1
hereof, the Company will, subject to the terms and provisions hereof, use its
reasonable best efforts to effect the registration of such Registrable
Securities as quickly as practicable, and in connection with each such request:
(a) The Company will as expeditiously as possible prepare and file with
the Commission a registration statement on any form for which the Company then
qualifies and which counsel for the Company shall deem appropriate and
available for the sale of the Registrable Securities to be registered
thereunder in accordance with the intended method of distribution thereof, and
use its reasonable best efforts to cause such filed registration statement
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to become and remain effective for a period of not less than 120 days (or such
shorter period as shall terminate when all Registrable Securities covered by
such registration statement have been sold or withdrawn); provided that if the
Company shall furnish to such Shareholder a certificate signed by the President
or a Vice President of the Company stating that in the good faith judgment of
the Company it would be detrimental or otherwise disadvantageous to the Company
or its shareholders for such a registration statement to be filed or become
effective or, in the case of an effective registration statement, for sales to
be effected thereunder, the Company shall have a period of not more than
120 days from the date of such Company officer's certificate within which to
file such registration statement or, if filed, to seek its effectiveness or,
in the case of an effective registration statement, the Company shall be
entitled to require the selling Shareholder(s) to refrain from selling
Registrable Securities under such registration statement for a period of
up to 120 days from the date of such Company officer's certificate. If the
Company furnishes a notice under this paragraph at a time when a registration
statement filed pursuant to this Agreement is effective, the Company shall
extend the period during which such registration statement shall be
maintained effective as provided in this Section 3.1(a) hereof by the number of
days during the period from and including the date of the giving of notice
under this paragraph to the date when sales under the registration statement
may recommence.
(b) The Company will, prior to filing such registration statement or
any amendment or supplement thereto, furnish to each such Shareholder and each
managing Underwriter, if any, copies thereof, and thereafter furnish to each
such Shareholder and each such Underwriter, if any, such number of copies of
such registration statement, each amendment and supplement thereto (in each
case including all exhibits thereto and documents incorporated by reference
therein) and the prospectus included in such registration statement (including
each preliminary prospectus) as such Shareholder or such Underwriter may
reasonably request in order to facilitate the sale of the Registrable
Securities.
(c) After the filing of the registration statement, the Company will
promptly notify each such Shareholder of any stop order issued or, to the
knowledge of the Company, threatened to be issued by the Commission and will
promptly take all necessary actions required to prevent the entry of such stop
order or to remove it if entered.
(d) The Company will use its reasonable best efforts to register or to
qualify the Registrable Securities for offer and sale under such other
securities or blue sky laws of such jurisdictions in the United States as each
such Shareholder reasonably (in light of each such Shareholders intended plan
of distribution) requests; provided that the Company will not be required to
(i) qualify generally to do business in any jurisdiction where it would not
otherwise be required to qualify but for this paragraph (d), (ii) subject
itself to taxation in any
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such jurisdiction or (iii) file any general consent to service of process in
any such jurisdiction.
(e) The Company will, as promptly as practicable, notify each such
Shareholder, at any time when a prospectus relating to the registration of
Registrable Securities pursuant to Article II hereof is required by law to be
delivered in connection with sales by an Underwriter or dealer, if for any
reason the prospectus requires a supplement or amendment thereto so that, as
thereafter delivered to the purchasers of such Registrable Securities, such
prospectus will not contain an untrue statement of a material fact or omit to
state any material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they were made,
not misleading, and as promptly as practicable make available to each such
Shareholder and to the Underwriters any such supplement or amendment. Each such
Shareholder agrees that, upon receipt of any notice from the Company of the
occurrence of any event of the kind described in the preceding sentence, such
Shareholder will forthwith discontinue the offer and sale of Registrable
Securities pursuant to the registration statement covering such Registrable
Securities until receipt of the copies of such supplemented or amended
prospectus and, if so directed by the Company, such Shareholder will deliver to
the Company all copies, other than permanent file copies then in such
Shareholder's possession, of the most recent prospectus covering such
Registrable Securities at the time of receipt of such notice. In the event the
Company shall give such notice, the Company shall extend the period during
which such registration statement shall be maintained effective as provided in
Section 3.1(a) hereof by the number of days during the period from and
including the date of the giving of such notice to the date when the Company
shall make available to each such Shareholder such supplemented or amended
prospectus.
(f) The Company will enter into customary agreements (including an
underwriting agreement in customary form and satisfactory in form and substance
to the Company in its reasonable judgment) and take such other actions as are
reasonably required in order to expedite or facilitate the sale of such
Registrable Securities, provided that any such underwriting agreement shall
contain an agreement of the Underwriter(s) to indemnify and hold harmless the
Company against any and all losses, claims, damages and liabilities caused by
any untrue statement or alleged untrue statement of a material fact contained
in any registration statement or prospectus relating to the Registrable
Securities if a copy of the current prospectus, as amended and supplemented,
was furnished to the Underwriter(s) and/or each such Shareholder by the Company
but was not provided to a purchaser and such current prospectus would have
cured the defect giving rise to such loss, claim, damage or liability, or shall
contain a substantially similar agreement acceptable to the Company.
(g) The Company will make generally available to its shareholders, as
soon as reasonably practicable, an earning
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statement covering a period of 12 months, beginning within three months after
the effective date of the registration statement, which earning statement shall
satisfy the provisions of Section 11(a) of the Securities Act.
It shall be a condition precedent to the obligation of the Company to
take any action pursuant to this Agreement in respect of the securities which
are to be registered at the request of any Shareholder of Registrable
Securities that such Shareholder shall furnish to the Company such information
regarding such Shareholder, the securities held by such Shareholder and the
intended method of disposition thereof as the Company shall reasonably request
and as shall be required in connection with the action taken by the Company.
SECTION 3.2. Registration Expenses. In connection with any Demand
Registration and any Incidental Registration, the Company shall (except as
otherwise specifically provided herein) pay all out-of-pocket expenses of the
Company incurred in connection with such registration (the "Registration
Expenses"), including without limitation; (i) all filing fees with the
Commission, (ii) fees and expenses of compliance with securities or blue sky
laws (including fees and disbursements of counsel in connection with blue sky
qualifications of the Registrable Securities), (iii) printing expenses,
(iv) fees and expenses of counsel and independent certified public accountants
for the Company and (v) the reasonable fees and expenses of any additional
experts retained by the Company in connection with such registration. In
addition, in connection with any Demand Registration and any Incidental
Registration, each participating Shareholder shall pay any underwriting fees,
discounts or commissions attributable to the sale of Registrable Securities by
such Shareholder, and any out-of-pocket expenses of such Shareholder, including
such Shareholder's counsel's fees and expenses, and the Company shall pay
internal Company expenses (including, without limitation, all salaries and
expenses of its officers and employees performing legal or accounting duties).
ARTICLE IV
INDEMNIFICATION
SECTION 4.1. Indemnification by the Company. The Company agrees to
indemnify and hold harmless each Shareholder, its officers and directors, and
each Person, if any, who controls each Shareholder within the meaning of either
Section 15 of the Securities Act or Section 20 of the Securities Exchange Act
of 1934, as amended (the "Exchange Act"), from and against any and all losses,
claims, damages and liabilities caused by any untrue statement or alleged
untrue statement of a material fact contained in any registration statement or
prospectus relating to the Registrable Securities (as amended or supplemented
if the Company shall have furnished any amendments or supplements thereto) or
any preliminary prospectus, or caused by any omission or alleged omission to
state therein a material fact required to be stated
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therein or necessary to make the statements therein not misleading and will
reimburse each such person for any legal or other out-of-pocket expenses
reasonably incurred in connection with investigating or defending any such
loss, claim, damage or liability (or any proceeding in respect thereof),
subject to the provisions of Section 4.3, except insofar as such losses,
claims, damages or liabilities are caused by any such untrue statement or
omission or alleged untrue statement or omission based upon and in conformity
with information furnished in writing to the Company by or on behalf of each
Shareholder expressly for use therein; provided that the foregoing indemnity
agreement shall not be applicable (i) if a copy of the current prospectus, as
amended and supplemented, was furnished to the relevant Shareholder by the
Company but was not provided to the relevant purchaser and such current
prospectus would have cured the defect giving rise to such loss, claim, damage
or liability or (ii) with respect to any sales occurring after a notification
to such Shareholder by the Company pursuant to Section 3.1(e) and prior to the
delivery by the Company of the supplement or amendment to such prospectus
contemplated by such notification. Subject to the Underwriter's compliance with
Section 3.1(f) hereof, the Company also agrees to indemnify any Underwriters of
the Registrable Securities, their officers and directors and each person who
controls such Underwriters on substantially the same basis as that of the
indemnification of each Shareholder provided in this Section 4.1.
SECTION 4.2. Indemnification by the Shareholders. Each Shareholder
agrees to indemnify and hold harmless the Company, its officers and directors,
and each Person, if any, who controls the Company within the meaning of either
Section 15 of the Securities Act or Section 20 of the Exchange Act to the same
extent as the foregoing indemnity from the Company to each Shareholder, but
only with reference to information furnished in writing by or on behalf of each
Shareholder expressly for use in any registration statement or prospectus
relating to the Registrable Securities, or any amendment or supplement thereto,
or any preliminary prospectus.
SECTION 4.3. Conduct of Indemnification Proceedings. (a) In case any
proceeding (including any governmental investigation) shall be instituted
involving any Person in respect of which indemnity may be sought pursuant to
Section 4.1 or 4.2, such Person (the "Indemnified Party") shall promptly notify
the Person against whom such indemnity may be sought (the "Indemnifying Party")
in writing, provided that the omission to so notify the Indemnifying Party will
not relieve the Indemnifying Party of any liability it may have under this
Agreement or otherwise except to the extent of any loss, damage, liability or
expense arising from such omission. The Indemnifying Party, upon the request of
the Indemnified Party, shall retain counsel reasonably satisfactory to such
Indemnified Party to represent such Indemnified Party and any others the
Indemnifying Party may designate in such proceeding and shall pay the fees and
disbursements of such counsel related to such proceeding. In any such
proceeding, any Indemnified Party shall have the right to retain its own
counsel, but the fees and expenses
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of such counsel shall be at the expense of such Indemnified Party unless
(i) the Indemnifying Party and the Indemnified Party shall have mutually agreed
to the retention of such counsel or (ii) the named parties to any such
proceeding (including any impleaded parties) include both the Indemnified Party
and the Indemnifying Party and representation of both parties by the same
counsel would be inappropriate due to actual or potential differing interests
between them. It is understood that the Company, if an Indemnifying Party,
shall not, in connection with any proceeding or related proceedings in the same
jurisdiction, be liable for the fees and expenses of more than one separate
firm of attorneys (in addition to any local counsel) at any time for each
Shareholder, if an Indemnified Party. In the case of any such separate firm for
an Indemnified Party, such firm shall be designated in writing by the
Indemnified Party. The Indemnifying Party shall not be liable for any
settlement of any proceeding effected without its written consent.
(b) If the indemnification provided for in this Article IV shall for
any reason be unavailable to an Indemnified Party in respect of any loss,
claim, damage or liability, or any action in respect thereof, referred to
therein, then the Indemnifying Party shall, in lieu of indemnifying such
Indemnified Party, contribute to the amount paid or payable by such Indemnified
Party as a result of such loss, claim, damage or liability, or action in
respect thereof in such proportion as shall be appropriate to reflect both the
relative benefits received by the Indemnifying Party and the Indemnified Party
from the offering of the Registrable Securities and the relative fault of the
Indemnifying Party and the Indemnified Party in connection with the statements
or omissions which resulted in such loss, claim, damage or liability, or action
in respect thereof, as well as any other relevant equitable considerations. The
relative fault shall be determined by reference to whether the untrue and
alleged untrue statement of a material fact or omission or alleged omission to
state a material fact relates to information supplied by the Indemnifying
Party, on the one hand, or the Indemnified Party, on the other, the intent of
the parties and their relative knowledge, access to information and opportunity
to correct or prevent such statement or omission. The amount paid or payable by
an Indemnified Party as a result of the loss, claim, damage or liability, or
action in respect thereof, referred to above in this paragraph shall be deemed
to include, for purposes of this paragraph, any legal or other expenses
reasonably incurred by such Indemnified Party in connection with investigating
or defending any such action or claim. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation.
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ARTICLE V
MISCELLANEOUS
SECTION 5.1. Provision of Information. Each Shareholder shall, and
shall cause its officers, directors, employees and agents to, complete and
execute all such questionnaires, powers of attorney, indemnities, underwriting
agreements and other documents as the Company shall reasonably request in
connection with a Demand Registration or Incidental Registration.
SECTION 5.2. Rule 144. The Company covenants that it will use
reasonable best efforts to file any reports required to be filed by it under
the Securities Act and the Exchange Act and that it will take such further
action as the Shareholders may reasonably request, all to the extent required
from time to time to enable each Shareholder to sell Registrable Securities
without registration under the Securities Act within the limitation of the
exemptions provided by Rule 144 under the Securities Act, as such Rule may be
amended from time to time, or any similar rule or regulation hereafter adopted
by the Commission.
SECTION 5.3. Severability. If any one or more of the provisions of
this Agreement shall be held to be invalid, illegal or unenforceable, the
validity, legality or enforceability of the remaining provisions of this
Agreement shall not be affected thereby. To the extent permitted by applicable
law, each party waives any provision of law which renders any provision of this
Agreement invalid, illegal or unenforceable in any respect.
SECTION 5.4. Further Assurances. Subject to the specific terms of
this Agreement, each Shareholder and the Company shall make, execute,
acknowledge and deliver such other instruments and documents, and take all such
other actions, as may be reasonably required in order to effectuate the purposes
of this Agreement and to consummate the transactions contemplated hereby.
SECTION 5.5. Successors and Assigns. This Agreement shall be binding
upon and shall inure to the benefit of and be enforceable by and against the
successors and assigns of the parties hereto. No right or obligation hereunder
shall be assignable without the consent of the other party hereto, and any such
purported assignment shall be void.
SECTION 5.6. Entire Agreement; Modification. This Agreement contains
the entire understanding among the parties and supersedes all agreements and
understandings entered into prior to the execution hereof including, without
limitation, the provisions of Section 7.17 of the Merger Agreement. This
Agreement may be modified only by a written instrument duly executed by or on
behalf of each party and, in the case of the Company, only if approved by a
majority of the Independent Directors.
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SECTION 5.7. Notices. Except as otherwise specified by written notice
to the parties hereto, all notices and other communications provided for
hereunder shall be in writing and shall be by facsimile or sent by registered
mail, postage prepaid as follows:
(i) if to the Company:
Insituform Technologies, Inc.
0000 Xxxxx Xxxxxxx
Xxxxx 000
Xxxxxxx, Xxxxxxxxx 00000
Attn: Xxxx-Xxxx Xxxxxxx, President
Fax Number: (000) 000-0000
with a copy to:
Krugman, Xxxxxxxx & Xxxxxxxx
Park 00 Xxxx - Xxxxx Xxx
Xxxxxx Xxxxx, Xxx Xxxxxx 00000
Attn: Xxxxxx Xxxxxx
Fax Number: (000) 000-0000
(ii) if to Xxxxxxxxx:
c/o Insituform Mid-America, Inc.
00000 Xxxxxx Xxxxxx
Xxxxxxxxxxxx, Xxxxxxxx 00000-0000
with a copy to:
Xxxxxx X. Xxxx, Esq.
Xxxxxxxx & Xxxxxxxx
Xxx Xxxxxxxxxx Xxxxxx
Xx. Xxxxx, Xxxxxxxx 00000
(iii) if to Xanadu:
c/o Insituform Mid-America, Inc.
00000 Xxxxxx Xxxxxx
Xxxxxxxxxxxx, Xxxxxxxx 00000-0000
with a copy to:
Xxxxxx X. Xxxx, Esq.
Xxxxxxxx & Xxxxxxxx
Xxx Xxxxxxxxxx Xxxxxx
Xx. Xxxxx, Xxxxxxxx 00000
SECTION 5.8. Governing Law. This Agreement shall be governed by and
construed in accordance with the substantive law of the State of New York
without giving effect to the principles of conflict of laws thereof.
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SECTION 5.9. Counterparts. This Agreement may be executed in
counterparts, each of which shall be an original, but all of which together
shall constitute one and the same agreement.
SECTION 5.10. Effect of Headings. The section headings herein are for
convenience only and shall not affect the construction thereof.
SECTION 5.11. Termination. This Agreement shall automatically terminate
if the Merger Agreement is terminated.
IN WITNESS WHEREOF, the parties have duly executed this Agreement as of
the date first above written.
INSITUFORM TECHNOLOGIES, INC.
By /s/ Xxxxxxx X. Xxxxxx
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/s/ Xxxxxx X. Xxxxxxxxx
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Xxxxxx X. Xxxxxxxxx
XANADU INVESTMENTS, L.P.
By: The Xxxxxx Xxxxxxxxx Revocable Trust,
its General Partner
By /s/ Xxxxxx Xxxxxxxxx
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Xxxxxx Xxxxxxxxx, Trustee
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