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<SEC-DOCUMENT>0000950137-05-003145.txt : 20050316
<SEC-HEADER>0000950137-05-003145.hdr.sgml : 20050316
<ACCEPTANCE-DATETIME>20050316171241
ACCESSION NUMBER: 0000950137-05-003145
CONFORMED SUBMISSION TYPE: 10-K
PUBLIC DOCUMENT COUNT: 16
CONFORMED PERIOD OF REPORT: 20041231
FILED AS OF DATE: 20050316
DATE AS OF CHANGE: 20050316
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: 10-K
SEC ACT: 1934 Act
SEC FILE NUMBER: 000-10786
FILM NUMBER: 05686436
BUSINESS ADDRESS:
STREET 1: 702 SPIRIT 40 PARK DRIVE
CITY: CHESTERFIELD
STATE: MO
ZIP: 63005
BUSINESS PHONE: 6365308000
MAIL ADDRESS:
STREET 1: 702 SPIRIT 40 PARK DRIVE
CITY: CHESTERFIELD
STATE: MO
ZIP: 63005
FORMER COMPANY:
FORMER CONFORMED NAME: INSITUFORM OF NORTH AMERICA INC/TN/
DATE OF NAME CHANGE: 19930617
FORMER COMPANY:
FORMER CONFORMED NAME: INSITUFORM OF NORTH AMERICA INC
DATE OF NAME CHANGE: 19921217
</SEC-HEADER>
<DOCUMENT>
<TYPE>10-K
<SEQUENCE>1
<FILENAME>c93062e10vk.txt
<DESCRIPTION>ANNUAL REPORT
<TEXT>
<PAGE>
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 10-K
ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d)
OF THE SECURITIES EXCHANGE ACT OF 1934
FOR THE FISCAL YEAR ENDED DECEMBER 31, 2004
Commission file number 0-10786
INSITUFORM TECHNOLOGIES, INC.
-------------------------------------------------------------------------
(Exact name of registrant as specified in its charter)
DELAWARE 13-3032158
---------------------------------- ------------------------------------
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
702 SPIRIT 40 PARK DRIVE
CHESTERFIELD, MISSOURI 63005
---------------------------------- -----------------------------------
(Address of principal executive (Zip Code)
offices)
Registrant's telephone number, including area code: 636-530-8000
Securities registered pursuant to Section 12(b) of the Act: NONE
Securities registered pursuant to Section 12(g) of the Act:
Title of each class Name of each exchange on which reported
------------------- ---------------------------------------
Class A Common Shares, $.01 par value The Nasdaq Stock Market
Preferred Stock Purchase Rights The Nasdaq Stock Market
Indicate by a check mark whether the registrant (1) has filed all reports
required to be filed by Section 13 or 15(d) of the Securities Exchange Act of
1934 during the preceding 12 months (or for such shorter period that the
registrant was required to file such reports), and (2) has been subject to such
filing requirements for the past 90 days. Yes [X] No [ ]
Indicate by check mark if disclosure of delinquent filers pursuant to Item 405
of Regulation S-K (Section 229.405 of this chapter) is not contained herein, and
will not be contained, to the best of registrant's knowledge, in definitive
proxy or information statements incorporated by reference in Part III of this
Form 10-K or any amendment to this Form 10-K. [ ]
Indicate by check mark whether the registrant is an accelerated filer (as
defined in Rule 12b-2 of the Act) Yes [X] No [ ]
State the aggregate market value of the voting and non-voting common equity held
by non-affiliates of the registrant as of June 30, 2004: $435,104,298
Indicate the number of shares outstanding of each of the registrant's classes of
common stock as of the latest practicable date: Class A common shares, $.01 par
value, as of March 1, 2005: 26,811,355 shares
DOCUMENTS INCORPORATED BY REFERENCE
As provided herein, portions of the documents below are incorporated by
reference:
Document Part-Form 10-K
Registrant's Proxy Statement Part III
for the 2005 Annual Meeting of
Stockholders
<PAGE>
PART I
Item 1. Business
FORWARD-LOOKING INFORMATION
This Annual Report on Form 10-K contains various forward-looking
statements (as such term is defined in the Private Securities Litigation Reform
Act of 1995) that are based on information currently available to the management
of Insituform Technologies, Inc. and on management's beliefs and assumptions.
When used in this document, the words "anticipate," "estimate," "believes,"
"plans," and similar expressions are intended to identify forward-looking
statements, but are not the exclusive means of identifying such statements. Such
statements are subject to risks and uncertainties. The Company's actual results
may vary materially from those anticipated, estimated or projected due to a
number of factors, such as the competitive environment for the Company's
products and services, the availability of raw materials used in the
Insituform(R) cured-in-place-pipe ("Insituform CIPP") process, increased
competition upon expiration of the Company's patents or the inadequacy of one or
more of its CIPP process patents to protect its operations, the geographical
distribution and mix of the Company's work, the ability of the Company to
attract business at acceptable margins,foreseeable and unforeseeable issues in
projects that make it difficult or impossible to meet projected margins, the
timely award or cancellation of projects, political circumstances impeding the
progress of work, the Company's ability to remain in compliance with its
financial covenants, the regulatory environment, the outcome of the Company's
pending litigation and other factors set forth in reports and other documents
filed by the Company with the Securities and Exchange Commission from time to
time. The Company does not assume a duty to update forward-looking statements.
Please use caution and do not place reliance on forward-looking statements.
GENERAL
Insituform Technologies, Inc. is a worldwide company specializing in
trenchless technologies to rehabilitate, replace, maintain and install
underground pipes. The Company has three principal operating segments:
rehabilitation, tunneling and Tite Liner. These segments have been determined
primarily based on the types of products sold by each segment, and each is
regularly reviewed and evaluated separately. While the Company uses a variety of
trenchless technologies, the Insituform(R) CIPP process contributed 69.2% and
65.5% of its revenues in 2004 and 2003, respectively. The tunneling segment has
grown through organic growth combined with a business acquisition in 2002.
Revenues are generated by the Company and its subsidiaries operating
principally in the United States, Canada, the United Kingdom, the Netherlands,
France, Belgium, Spain, Switzerland and Chile, and include product sales and
royalties from several joint ventures in Europe, and unaffiliated licensees and
sub-licensees throughout the world. The United States remains the Company's
single largest market, representing 81.0% of total revenue in 2004. See Note 15
to the Company's Consolidated Financial Statements contained in this report for
additional segment information and disclosures.
The Company was incorporated in Delaware in 1980, under the name
Insituform of North America, Inc. The Company was originally formed to act as
the exclusive licensee of the Insituform CIPP Process in most of the United
States. When the Company acquired its licensor in 1992, the name of the Company
was changed to Insituform Technologies, Inc. As a result of its successive
licensee acquisitions, the Company's business model has evolved from licensing
technology and manufacturing materials to performing the entire Insituform CIPP
Process and other trenchless technologies itself.
As used in this Annual Report on Form 10-K, the terms "Company" and
"Insituform Technologies" refer to the Company and, unless the context otherwise
requires, its direct and indirect wholly-owned subsidiaries. For certain
information concerning the Company by industry segment and by each geographic
area, see Note 15 of the Notes to the Company's Consolidated Financial
Statements.
2
<PAGE>
The Company's website is www.insituform.com. The Company makes available
on this website under "Investor Relations - SEC," free of charge, its annual
report on Form 10-K, quarterly reports on Form 10-Q and current reports on Form
8-K (and amendments to those reports) as soon as reasonably practicable after
the Company electronically files such material with, or furnishes it to, the
Securities and Exchange Commission. In addition, the Company's Code of Ethics
for its Chief Executive Officer, Chief Financial Officer and senior financial
employees, its Business Code of Conduct applicable to its officers, directors
and employees, its Corporate Governance Guidelines, and its Board committee
charters are available, free of charge, on this website. These documents will be
made available, free of charge, to any stockholder requesting them.
TECHNOLOGIES
Pipeline System Rehabilitation
The Insituform CIPP Process for the rehabilitation of sewers, pipelines
and other conduits utilizes a custom-manufactured tube, or liner, made of a
synthetic fiber. After the tube is saturated (impregnated) with a thermosetting
resin mixture, it is installed in the host pipe by various processes and the
resin is then hardened, usually by heating it using various means, forming a new
rigid pipe within a pipe.
Pipebursting is a trenchless method for replacing deteriorated or
undersized pipelines. A bursting head is propelled through the existing
pipeline, fracturing the host pipe and displacing the fragments outward,
allowing a new pipe to be pulled in to replace the old line. Pipes can be
replaced size-for-size or upsized.
Microtunneling is a trenchless method of drilling a new tunnel from
surface operated equipment. Microtunneling is typically used for gravity sewers
at depths greater than 15 feet, in congested areas, where unstable ground
conditions exist, where construction is below the water table, or where
contamination zones are present.
Sliplining is a method used to push or pull a new pipeline into an old
one. With segmented sliplining, short segments of pipe are joined to form the
new pipe. For gravity sewer rehabilitation, these short segments can often be
joined in a manhole or access structure, eliminating the need for a large
pulling pit.
The Insituform ArmorGRiP(TM) Process uses a proprietary product to
rehabilitate large diameter sanitary or storm sewers. A proprietary process is
used to construct fiberglass reinforced panels to custom size and thickness. The
panels are individually placed in the sewer and the seams are sealed.
See "Patents and Licenses" below for information concerning these
technologies and the Company's NuPipe Process and Thermopipe process.
Tunneling
Tunneling typically encompasses the construction of man-entry sized
pipelines with access through vertical shafts. From the vertical shaft, a tunnel
is constructed using a steerable, locally controlled tunnel boring machine. Pipe
is typically installed after the tunnel is constructed.
3
<PAGE>
Tite Liner Process
The Company's Tite Liner(R) ("Tite Liner") process is a method of lining
new and existing pipe with a corrosion and abrasion resistant polyethylene pipe.
REHABILITATION ACTIVITIES
The Company's rehabilitation activities are conducted principally through
installation and other construction operations performed directly by the Company
or its subsidiaries. In those areas of the world in which the Company's
management believes it would not be desirable for the Company to capitalize on
its trenchless processes directly, the Company has granted licenses to
unaffiliated companies. As described under "Ownership Interests in Operating
Licensees and Project Joint Ventures" below, the Company also has entered into
joint ventures from time to time to capitalize on its trenchless rehabilitation
processes. Under these contractual joint venture relationships, work is bid by
the joint venture entity and subcontracted to the joint venture partners or to
third parties. The joint venture partners are primarily responsible for their
subcontracted work, but both joint venture partners are liable to the customer
for all of the work. Revenue and associated costs are recorded using
percentage-of-completion accounting for the Company's subcontracted portion of
the total contract only.
The Company's principal rehabilitation activities are conducted in North
America directly by the Company or through subsidiaries. The Company holds the
Insituform CIPP Process rights for the United States and Canada. In North
America, the Company offers the Insituform CIPP Process throughout the United
States and in Canada. Significant pipebursting rehabilitation activities have
been conducted in the southeastern and southwestern regions of the United States
by the Company.
North American rehabilitation operations, including research and
development, engineering, training and financial support systems, are
headquartered in Chesterfield, Missouri. Tube manufacturing and processing
facilities for North America were maintained in seven locations, geographically
dispersed throughout the United States and Canada during 2004. During the first
quarter of 2004, the Company closed its tube manufacturing facility in Memphis,
Tennessee, and transferred its tube manufacturing operations to the Company's
existing facilities in Batesville, Mississippi.
Outside North America, the Company conducts Insituform CIPP Process
rehabilitation operations through subsidiaries in the United Kingdom, France,
Spain, the Netherlands, Switzerland and Belgium. Through one of its French
subsidiaries, Video Injection S.A., acquired in 1998, the Company utilizes
multifunctional robotic devices, developed by Video Injection, in connection
with the inspection and repair of pipelines.
European operations are headquartered in Rueil Malmaison, France, a suburb
of Paris, with principal regional facilities located in the United Kingdom,
France, Spain, the Netherlands, Switzerland and Belgium.
TUNNELING ACTIVITIES
The Company conducts tunneling, microtunneling and a range of pipe system
rehabilitation services throughout the United States directly and through its
wholly-owned subsidiary, Affholder, Inc.
TITE LINER ACTIVITIES
Tite Liner Process operations are conducted in the United States through
the Company's United Pipeline Systems division. Worldwide Tite Liner Process
operations are headquartered in the United States. Outside the United States,
Tite Liner Process installation activities are conducted through operating
subsidiaries in Chile and Canada.
4
<PAGE>
Most of the Company's installation operations are project-oriented
contracts for municipal entities. The contracts are usually obtained through
competitive bidding or negotiations and require performance at a fixed price.
The profitability of these contracts depends heavily upon the competitive
bidding environment, the Company's ability to estimate costs accurately and the
Company's ability to effectively manage and execute project performance. Project
estimates may prove to be inaccurate due to unforeseen conditions or events. A
substantial portion of the work on any given project may be subcontracted to
third parties at a significantly lower profitability level to the Company than
work directly performed by the Company. Also, proper trenchless installation
requires expertise that is acquired on the job and through training. The
Company, therefore, provides ongoing training and appropriate equipment to its
field installation crews.
The overall profitability of the Company's installation operations is
influenced not only by the profitability of specific project contracts, but also
by the volume and timing of projects so that the installation operations are
able to operate at, or near, capacity.
The Company is required to carry insurance and provide bonding in
connection with certain installation projects and, accordingly, maintains
comprehensive insurance policies, including workers' compensation, general and
automobile liability, and property coverage. The Company believes that it
presently maintains adequate insurance coverage for all installation activities.
The Company has also arranged bonding capacity for bid, performance and payment
bonds. Typically, the cost of a performance bond is less than 1% of the contract
value. The Company and certain of its subsidiaries are required to indemnify the
surety companies for any payments the sureties are required to make under the
bonds and to hold them harmless from and against all claims, damages and
expenses which they may sustain in connection with any bond. The indemnification
obligations are secured by unperfected liens on the assets of the Company and
those subsidiaries which are parties to the applicable indemnification
agreement.
The Company generally invoices its customers as work is completed. Under
ordinary circumstances, collection from municipalities in the United States is
made within 60 to 90 days of billing. In most cases, 5% to 15% of the contract
value is withheld by the owner pending satisfactory completion of the project.
LICENSEES
The Company has granted licenses for the Insituform CIPP Process, covering
exclusive and non-exclusive territories, to licensees who provide pipe repair
and rehabilitation services throughout their respective licensed territories. At
December 31, 2004, the Insituform CIPP Process was licensed to nine unaffiliated
licensees and 13 unaffiliated sublicensees in Europe and Asia. The licenses
generally grant to the licensee the right to utilize the know-how and the patent
rights (where they exist) relating to the subject process, and to use the
Company's copyrights and trademarks.
The Company's licensees generally are obligated to pay a royalty at a
specified rate, which in many cases is subject to a minimum royalty payment.
After the September 5, 2003 acquisition of Insituform East, Inc., there were no
unaffiliated domestic licensees. Any improvements or modifications a licensee
may make in the subject process during the term of the license agreement become
the property of the Company or are licensed to the Company. Should a licensee
fail to meet its royalty obligations or other material obligations, the Company
may terminate the license. Licensees, upon prior notice to the Company, may
generally terminate the license for any reason. The Company may vary the
agreement used with new licensees according to prevailing conditions.
The Company acts as licensor under arrangements with approved installers
relating to the use of the Thermopipe(R) ("Thermopipe") Process in the United
Kingdom and elsewhere on a non-exclusive basis.
5
<PAGE>
OWNERSHIP INTERESTS IN OPERATING LICENSEES AND PROJECT JOINT VENTURES
The Company, through its subsidiary, Insituform Holdings (UK) Limited,
holds one-half of the equity interest in Insituform Rohrsanierungstechniken
GmbH, the Company's licensee of the Insituform CIPP Process in Germany.
Insituform Rohrsanierungstechniken also conducts Insituform CIPP Process
operations in Austria, the Czech Republic, Slovakia and Hungary. The remaining
interest in Insituform Rohrsanierungstechniken is held by Per Aarsleff A/S, a
Danish contractor. The joint venture partners have rights-of-first-refusal in
the event either party determines to divest its interest.
The Company, through its subsidiary, Insituform Technologies Limited,
holds one-half of the equity interest in Insituform Environmental Techniques
Limited, the Company's licensee of the Insituform CIPP Process in Ireland. The
remaining interest is held by Environmental Techniques Limited, an Irish
contractor. The joint venture partners have rights-of-first-refusal in the event
the other party determines to divest its interest.
The Company, through its subsidiary, INA Acquisition Corp., holds one-half
of the equity interest in Insituform Italia Srl, the Company's licensee of the
Insituform CIPP Process in Italy. The remaining interest is held by Per
Aarsleff A/S. On January 18, 2005, the quotaholders (stockholders) of Insituform
Italia approved the liquidation of the Italian joint venture, as the
joint venture was no longer financially viable. During the life of the joint
venture, the Company incurred losses of $2.8 million and contributed cash of
$2.5 million to the joint venture. During the most recent fiscal year, the
Company incurred a $0.5 million loss from the joint venture and contributed cash
to the joint venture in the amount of $0.8 million. The Company does not expect
to incur any material losses going forward as the joint venture is in
liquidation. The Company expects liquidation costs of approximately $0.2
million, which have been accrued at December 31, 2004.
The Company has entered into several contractual joint ventures in order
to develop joint bids on contracts for its pipeline rehabilitation business and
for its tunneling operations. Typically, the joint venture entity holds the
contract with the owner and subcontracts portions of the work to the joint
venture partners. As part of the subcontracts, the partners usually provide
bonds to the joint venture. The Company could be required to complete its joint
venture partner's portion of the contract if the partner is unable to complete
its portion and a bond is not available. The Company continues to investigate
opportunities for expanding its business through such arrangements.
MARKETING
The marketing of the Company's rehabilitation technologies is focused
primarily on the municipal wastewater markets worldwide, which the Company
expects to remain the largest part of its business for the foreseeable future.
To help shape decision-making at every step, the Company uses a multi-level
sales force structured around target markets and key accounts, focusing on
engineers, consultants, administrators, technical staff and elected officials.
The Company also produces sales literature and presentations, participates in
trade shows, conducts national advertising and executes other marketing programs
for the Company's own sales force and those of unaffiliated licensees. The
Company's unaffiliated licensees are responsible for marketing and sales
activities in their respective territories. See "Licensees" and "Ownership
Interests in Operating Licensees and Project Joint Ventures" above for a
description of the Company's licensing operations and for a description of
investments in licensees.
The Company offers its Tite Liner Process worldwide to industrial
customers to line new and existing pipelines.
The Company bids on tunneling projects in selected geographical markets in
the United States.
No customer accounted for more than 10% of the Company's consolidated
revenues during the years ended December 31, 2004, 2003 and 2002, respectively.
6
<PAGE>
CONTRACT BACKLOG
<TABLE>
<CAPTION>
DECEMBER 31,
-------------------
BACKLOG 2004 2003
- ------- ---- ----
(In millions)
<S> <C> <C>
Rehabilitation $ 190.4 $ 111.8
Tunneling 129.3 89.3
Tite Liner 8.6 7.0
-------- --------
Total $ 328.3 $ 208.1
======== ========
</TABLE>
Contract backlog is management's expectation of revenues to be generated
from received, signed, uncompleted contracts whose cancellation is not
anticipated at the time of reporting. Contract backlog excludes any term
contract amounts for which there is not specific and determinable work released
and projects where the Company has been advised that it is the low bidder, but
not formally awarded the contract.
PRODUCT DEVELOPMENT
The Company, by using its own laboratories and test facilities as well as
outside consulting organizations and academic institutions, continues to develop
improvements to its proprietary processes, including the materials used and the
methods of manufacturing and installing pipe. During the years ended December
31, 2004, 2003 and 2002, the Company spent $2.9 million, $2.0 million and $2.0
million, respectively, on research and development related activities, including
engineering.
MANUFACTURING AND SUPPLIERS
The Company maintains its North American Insituform CIPP Process liner
manufacturing facility in Batesville, Mississippi. An additional facility
located in Memphis, Tennessee, was shut down in the first quarter of 2004. The
Company spent $5.8 million in 2003 and $4.1 million in 2004 to complete the
additions, modifications, upgrades and revisions to its manufacturing facility
in Batesville. In Europe, Insituform Linings Plc., a majority-owned subsidiary,
manufactures and sells Insituform CIPP Process liners from its plant located in
Wellingborough, United Kingdom. The Company holds a 75% interest in Insituform
Linings, and Per Aarsleff holds the remainder. These interests are subject to
rights-of-first-refusal held by the Company and Per Aarsleff in the event of
proposed divestiture.
Although raw materials used in the Company's Insituform CIPP Process
products are typically available from multiple sources, the Company's historical
practice has been to purchase materials from a limited number of suppliers. The
Company maintains its own felt manufacturing facility at its Insitutube(R)
manufacturing facility in Batesville. Substantially all of its fiber
requirements are purchased from one source, but the Company believes alternate
vendors are readily available.
Although the Company has worked with one vendor to develop a uniform and
standard resin in North America, the Company has begun to diversify the supply
base among other major companies to further ensure ongoing material
availability. The Company currently is working to finalize a multi-year contract
with its primary resin supplier. The Company's existing resin supply contract
expired on December 31, 2004, but has been extended by three separate amendments
through March 31, 2005. The Company believes that the new resin contract should
be finalized and executed by March 31, 2005. In the event the new contract is
not executed by such date, the Company will seek an additional amendment to the
existing contract.
The Company believes that the sources of supply for its Insituform CIPP
Process operations in both North America and Europe are adequate for its needs.
The Company's pricing of raw materials is subject to fluctuations in the
underlying commodity prices.
The Company has a third party contractual commitment for the manufacture
and supply of Thermopipe(R) ("Thermopipe") Process products to the Company
through 2005.
The Company sells Insituform CIPP Process liners and related products to
certain licensees pursuant to fixed-term supply contracts. Under the
arrangements assumed in connection with the acquisition of the Thermopipe
Process and under subsequent arrangements, the Company also furnishes Thermopipe
Process products to its approved installers.
7
<PAGE>
The Company manufactures certain equipment used in its corrosion and
abrasion protection operations.
PATENTS AND LICENSES
As of December 31, 2004, the Company held 59 patents in the United States
relating to the Insituform CIPP Process, the last of which will expire in 2022.
As of December 31, 2004, the Company had 11 patents pending in the United States
that relate to the Insituform CIPP Process.
The Company has obtained patent protection in its principal overseas
markets covering various aspects of the Insituform CIPP Process. The
specifications and/or rights granted in relation to each patent will vary from
jurisdiction to jurisdiction. In addition, as a result of differences in the
nature of the work performed and in the climate of the countries in which the
work is carried out, not every licensee uses each patent, and the Company does
not necessarily seek patent protection for all of its inventions in every
jurisdiction in which it does business.
There can be no assurance that the validity of the Company's patents will
not be successfully challenged. The Company's business could be adversely
affected by increased competition upon expiration of the patents or if one or
more of its Insituform CIPP Process patents were adjudicated to be invalid or
inadequate in scope to protect the Company's operations. The Company believes,
however, that, in either case, its long experience with the Insituform CIPP
Process, its continued commitment to support and develop the Insituform CIPP
Process, the strength of its trademark, and its degree of market penetration,
should enable the Company to continue to compete effectively in the pipeline
rehabilitation market.
The Company holds 12 patents issued in the United States covering either
the NuPipe Process or materials used in connection with the NuPipe Process. The
Company also holds similar NuPipe Process (or related material) patents in 14
other countries. The NuPipe Process entails the manufacture of a folded
thermoplastic replacement pipe that is heated at the installation site to make
it flexible enough to be inserted into an existing conduit. The Company is no
longer seeking NuPipe Process business.
The Company holds two patents issued in the United States and nine patents
outside of the United States relating to the Thermopipe Process for
rehabilitating pressurized potable water and other aqueous fluid pipes.
The Company holds a small number of patents relating to its corrosion and
abrasion protection business. The Company believes that the success of its Tite
Liner Process business, operated through its United Pipeline Systems division,
depends primarily upon its proprietary know-how and its marketing and sales
skills.
The Company's pipebursting operations are performed under a
royalty-bearing, non-exclusive license from Advantica, Inc. The license
terminates upon expiration of the underlying patent, which expires on April 19,
2005. In 2004, the Company paid $0.9 million to Advantica under the license.
COMPETITION
The markets in which the Company operates are highly competitive. Most of
the Company's products, including the Insituform CIPP Process, face direct
competition from competitors offering similar or equivalent products or
services. In addition, customers can select a variety of methods to meet their
pipe installation and rehabilitation needs, including a number of methods the
Company does not offer.
Most of the Company's installation operations are either project-oriented
or term contracts for municipal entities that are obtained through competitive
bidding or negotiations. Most competitors are
8
<PAGE>
local or regional companies, and may be either specialty trenchless contractors
or general contractors. There can be no assurance as to the success of the
Company's trenchless processes in competition with these companies and
alternative technologies for pipeline rehabilitation.
SEASONALITY
The Company's operations can be affected by severe weather. The effects of
weather are most notable between quarters of any given year. Typically, the
summer months yield the strongest operational results, while the first quarter
is normally weaker due to weather. Unusually severe weather in any area with a
large project, or a significant number of smaller jobs, can cause short-term
anomalies in operational performance. Only the tunneling segment is relatively
immune to weather-induced variability in operating results. For the past five
years, seasonal variation in work performed has not had a material effect on the
Company's consolidated results of operations.
EMPLOYEES
As of December 31, 2004, the Company had 2,445 employees. Certain of the
Company's subsidiaries and divisions are parties to collective bargaining
agreements covering an aggregate of 436 employees. The Company generally
considers its relations with its employees to be good.
GOVERNMENT REGULATION
The Company is required to comply with all applicable United States
federal, state and local, and all foreign statutes, regulations and ordinances.
In addition, the Company's installation and other operations have to comply with
various relevant occupational safety and health regulations, transportation
regulations, code specifications, permit requirements, and bonding and insurance
requirements, as well as with fire regulations relating to the storage, handling
and transporting of flammable materials. The Company's manufacturing facilities,
as well as its installation operations, are subject to state and national
environmental protection regulations, none of which presently have any material
effect on the Company's capital expenditures, earnings or competitive position
in connection with the Company's present business. However, although the
Company's installation operations have established monitoring programs and
safety procedures relating to its installation activities and to the use of
solvents, further restrictions could be imposed on the manner in which
installation activities are conducted, on equipment used in installation
activities and on the use of solvents or the thermosetting resins used in the
Insituform CIPP Process.
The use of both thermoplastics and thermosetting resin materials in
contact with drinking water is strictly regulated in most countries. In the
United States, a consortium led by NSF International, under arrangements with
the United States Environmental Protection Agency, establishes minimum
requirements for the control of potential human health effects from substances
added indirectly to water via contact with treatment, storage, transmission and
distribution system components, by defining the maximum permissible
concentration of materials which may be leached from such components into
drinking water, and methods for testing them. In April 1997, the Insituform
PPL(R) liner was certified by NSF for use in drinking water systems, followed in
April 1999 by NSF certification of the Insituform RPP(R) liner for such use. The
Thermopipe product also has NSF approval. NSF assumes no liability for use of
any products, and NSF's arrangements with the EPA do not constitute the EPA's
endorsement of NSF, NSF's policies or its standards. Dedicated equipment is
needed in connection with use of these products in drinking water applications.
The Company does not expect material revenues from its proprietary products for
drinking water pipe rehabilitation at least through 2005.
9
<PAGE>
Item 2. Properties
The Company's executive offices are located in Chesterfield, Missouri, a
suburb of St. Louis, at 702 Spirit 40 Park Drive. The executive offices are
leased from an unaffiliated party through May 31, 2006. The Company owns its
tunneling offices, research and development and training facilities in
Chesterfield.
The Company owns a liner fabrication facility and a contiguous felt
manufacturing facility in Batesville, Mississippi. The Company's recently closed
manufacturing facility in Memphis, Tennessee, is located on land sub-leased from
an unaffiliated entity for an initial term of 40 years expiring on December 31,
2020. The Company is evaluating its options with respect to this property.
Insituform Linings, a majority-owned subsidiary, owns certain premises in
Wellingborough, United Kingdom, where its liner manufacturing facility is
located.
The Company owns or leases various operational facilities in the United
States, Canada, Europe and Latin America.
The foregoing facilities are regarded by management as adequate for the
current requirements of the Company's business.
Item 3. Legal Proceedings
In the third quarter of 2002, an accident on an Insituform CIPP Process
project in Des Moines, Iowa resulted in the death of two workers and the injury
of five workers. The Company fully cooperated with Iowa's state OSHA in the
investigation of the accident. Iowa OSHA issued a Citation and Notification of
Penalty in connection with the accident, including several willful citations.
Iowa OSHA proposed penalties of $808,250. The Company challenged Iowa OSHA's
findings, and in the fourth quarter of 2003, an administrative law judge reduced
the penalties to $158,000. In the second quarter of 2004, the Iowa Employment
Appeal Board reinstated many of the original penalties, ordering total penalties
in the amount of $733,750. The Company is vigorously opposing the citations and,
in connection therewith, filed a notice of appeal with the Iowa district court.
On February 4, 2005, the Iowa district court heard oral arguments from the
Company and the Employment Appeal Board regarding the appeal.
In July 2004, three separate civil actions were filed in the Iowa district
court of Polk County with respect to the Des Moines accident. The first
complaint, filed by family members and the Estate of Brian Burford on July 7,
2004, named the Company, Insituform Technologies USA, Inc., (a wholly owned
subsidiary of the Company), the City of Des Moines and 15 current or former
employees of the Company as defendants. The two other actions, filed on July 6,
2004 by (1) family members and the Estate of Daniel Grasshoff and (2) Michael
Walkenhorst, James E. Johnson and Linda Johnson, named the City of Des Moines
and the 15 current or former employees of the Company as defendants, but did not
name the Company or Insituform USA as defendants. The complaints filed with
respect to Messrs. Burford and Grasshoff alleged wrongful death, negligence,
gross negligence and civil conspiracy. The complaint filed with respect to
Messrs. Walkenhorst and Johnson alleged gross negligence and civil conspiracy.
The Company believes that the allegations in each of the complaints are without
merit and that the workers' compensation statutes provide the exclusive remedy
to the plaintiffs for the deaths and injuries that occurred as a result of the
Des Moines accident. The Company intends to vigorously defend the actions. Each
complaint seeks unspecified damages, including punitive damages.
The Company is involved in certain other litigation incidental to the
conduct of its business and affairs. Management, after consultation with legal
counsel, does not believe that the outcome of any such other litigation will
have a material adverse effect on the consolidated financial condition, results
of operations or cash flows of the Company.
10
<PAGE>
Item 4. Submission of Matters to a Vote of Security Holders
There were no matters submitted during the quarter ended December 31, 2004
to a vote of our stockholders, through the solicitation of proxies or otherwise.
Item 4A. Executive Officers of the Registrant
The executive officers of the Company, and their respective ages and
positions with the Company, are as follows:
<TABLE>
<CAPTION>
AGE AT
NAME FEBRUARY 1, 2005 POSITION WITH THE COMPANY
- ---- ---------------- -------------------------
<S> <C> <C>
Thomas S. Rooney, Jr. 45 President and Chief Executive Officer
Christian G. Farman 46 Senior Vice President and Chief Financial Officer
Thomas W. Vaughn 53 Senior Vice President and Chief Operating Officer
David F. Morris 43 Vice President, General Counsel and Secretary
</TABLE>
Thomas S. Rooney, Jr. has been President of the Company since April 2003,
and Chief Executive Officer of the Company since July 2003. From April 2003 to
July 2003, Mr. Rooney was the Company's Chief Operating Officer. From 2000 until
he joined the Company, Mr. Rooney was Senior Vice President and Regional Manager
for Gilbane Building Company.
Christian G. Farman has been Chief Financial Officer of the Company since
December 2003 and a Senior Vice President since January 2005. From December 2003
to January 2005, Mr. Farman was a Vice President of the Company. From February
2003 to April 2003, Mr. Farman served as Chief Operating Officer of the National
Audubon Society. From prior to 1998 until 2001, Mr. Farman was Chief Financial
Officer of Vivendi North America (previously Anjou International). Mr. Farman
joined Vivendi North America in 1989 as Controller, and was promoted to Vice
President in 1992, Chief Financial Officer in 1995, and Executive Vice
President in 1999. From 1979 to 1989, Mr. Farman was an auditor with Price
Waterhouse (now known as PricewaterhouseCoopers LLP) in New York. Mr. Farman is
a certified public accountant.
Thomas W. Vaughn has been Senior Vice President and Chief Operating
Officer of the Company since August 2004. From May 1999 to February 2004, Mr.
Vaughn served as Chief Operating Officer of Williams Group International.
David F. Morris has been Vice President, General Counsel and Secretary of
the Company since January 2005. From March 1993 until January 2005, Mr. Morris
was with the law firm of Thompson Coburn LLP, St. Louis, Missouri, most recently
as a partner in its corporate and securities practice areas. Mr. Morris also
served as Senior Vice President, Associate General Counsel and Secretary of
Unified Financial Services, Inc., a diversified financial services company, from
December 1999 to March 2004.
PART II
Item 5. Market for Registrant's Common Equity and Related Stockholder Matters
(a) The Company's class A common shares, $.01 par value ("Common Stock"),
are traded on the Nasdaq Stock Market under the symbol "INSU." The following
table sets forth the range of quarterly high and low sales prices commencing
after December 31, 2002, as reported on The Nasdaq Stock Market. Quotations
represent prices between dealers and do not include retail mark-ups, mark-downs
or commissions.
11
<PAGE>
<TABLE>
<CAPTION>
PERIOD HIGH LOW
- ------ ---- ---
<S> <C> <C>
2004
First Quarter $ 19.40 $ 15.00
Second Quarter 18.08 14.50
Third Quarter 19.70 15.72
Fourth Quarter 24.72 18.53
2003
First Quarter $ 17.43 $ 12.11
Second Quarter 18.00 12.73
Third Quarter 19.00 14.76
Fourth Quarter 18.34 13.53
</TABLE>
As of March 1, 2005, the number of holders of record of the Company's
Common Stock was 855.
Holders of Common Stock are entitled to receive dividends as and when they
may be declared by the Company's Board of Directors. The Company has never paid
a cash dividend on the Common Stock. The Company's present policy is to retain
earnings to provide for the operation and expansion of its business. However,
the Company's Board of Directors will review the Company's dividend policy from
time to time and will consider the Company's earnings, financial condition, cash
flows, financing agreements and other relevant factors in making determinations
regarding future dividends, if any. Under the terms of certain debt arrangements
to which the Company is a party, the Company is subject to certain limitations
on paying dividends. See "Management's Discussion and Analysis of Financial
Condition and Results of Operations -- Liquidity and Capital
Resources -- Financings."
<TABLE>
<CAPTION>
EQUITY COMPENSATION PLAN INFORMATION
NUMBER OF SECURITIES TO BE NUMBER OF SECURITIES REMAINING
ISSUED UPON EXERCISE OF WEIGHTED-AVERAGE EXERCISE AVAILABLE FOR FUTURE ISSUANCE UNDER
OUTSTANDING OPTIONS, WARRANTS PRICE OF OUTSTANDING OPTIONS, EQUITY COMPENSATION PLANS (EXCLUDING
AND RIGHTS(1) WARRANTS AND RIGHTS SECURITIES REFLECTED IN COLUMN (a))
PLAN CATEGORY (a) (b) (c)
- ---------------------------- ----------------------------- ----------------------------- ------------------------------------
<S> <C> <C> <C>
Equity compensation plans
approved by security
holders 1,709,358 $ 21.46 1,036,369
Equity compensation plans
not approved by security
holders - n/a -
Total 1,709,358 $ 21.46 1,036,369
--------- ---------- ---------
</TABLE>
(1) The number of securities to be issued upon exercise of outstanding
options, warrants and rights includes 1,650,558 stock options and 58,800
deferred stock units outstanding at December 31, 2004.
Item 6. Selected Financial Data
The selected financial data set forth below has been derived from the
Company's consolidated financial statements contained in "Item 8. Financial
Statements and Supplementary Data" of this Annual Report on Form 10-K, and
previously published historical financial statements not included in this Annual
Report on Form 10-K. The selected financial data set forth below should be read
in connection with "Management's Discussion and Analysis of Financial Condition
and Results of Operations" and the Company's consolidated financial statements,
including the footnotes, contained in this report.
12
<PAGE>
Year Ended December 31,
<TABLE>
<CAPTION>
2004(1) 2003(2) 2002(2,3,4) 2001(2,3,4) 2000 (2,4)
---------- ---------- ----------- ----------- -----------
(In thousands, except per share amounts) (Unaudited)
<S> <C> <C> <C> <C> <C>
INCOME STATEMENT DATA:
Revenues $ 542,598 $ 487,272 $ 480,358 $ 445,310 $ 409,434
Operating income 8,178 21,591 50,183 46,765 62,966
Income from continuing operations 597 4,628 28,560 24,940 34,906
Loss from discontinued operations - (1,103) (5,869) (72) -
Net income 597 3,525 22,691 24,868 34,906
Basic earnings per share:
Income from continuing operations 0.02 0.17 1.08 0.94 1.41
Loss from discontinued operations - (0.04) (0.22) - -
Net income 0.02 0.13 0.86 0.94 1.41
Dilutive earnings per share:
Income from continuing operations 0.02 0.17 1.07 0.93 1.37
Loss from discontinued operations - (0.04) (0.22) - -
Net income 0.02 0.13 0.85 0.92 1.37
BALANCE SHEET DATA:
Unrestricted cash and cash
equivalents $ 93,246 $ 93,865 $ 71,401 $ 70,387 $ 62,523
Working capital, net of unrestricted
cash 61,637 73,535 52,829 68,332 51,945
Current assets 268,868 277,273 252,651 259,767 201,008
Property, plant and equipment 90,846 75,667 71,579 68,547 70,226
Total assets 508,821 508,360 473,013 463,622 354,974
Current maturities of long-term debt
and line of credit 15,778 16,938 49,360 35,218 18,023
Long-term debt, less current
maturities 96,505 114,323 67,014 88,853 98,217
Total liabilities 217,338 227,726 198,965 211,940 187,327
Total stockholders' equity 289,836 279,169 272,618 250,127 165,290
</TABLE>
- --------------------------
(1) See "Management's Discussion and Analysis of Financial Condition and
Results of Operations -- Results of Operations -- Tunneling Segment --
Summary" for a description of issues experienced during 2004.
(2) The Company has completed various acquisitions that have been accounted
for under the purchase method of accounting, including Insituform
Metropolitan, Inc. in 2000, Insituform Belgium N.V. in 2000, Kinsel
Industries, Inc. in 2001, Elmore Pipe Jacking, Inc. in 2002, Sewer
Services, Ltd. in 2003, Video Injection (remaining third party interest)
in 2003, Insituform East in 2003, and Ka-Te Insituform (remaining
interest) in 2003.
(3) Results include a pre-tax intangible asset impairment charge of $3.5
million in 2002 and pre-tax restructuring charges of $2.5 million and $4.1
million in 2002 and 2001, respectively.
(4) Effective January 1, 2002, the Company adopted SFAS 142, "Goodwill and
Other Intangible Assets," and ceased amortizing purchased goodwill.
Item 7. Management's Discussion and Analysis of Financial Condition and Results
of Operations
RECENT DEVELOPMENTS
During 2004, the tunneling segment incurred operating losses stemming from
lower-than-expected performance on a number of projects with negative gross
margin adjustments on one large tunneling project in Chicago in the amount of
$11.0 million, $7.3 million of which occurred in the fourth quarter. During the
third quarter of 2004, The Company recorded a downward adjustment to the gross
margin on this project of $3.7 million. See further discussion in " -- Results
of Operations -- Tunneling Segment."
As a result of the net loss incurred in the fourth quarter of 2004, the
Company was out of compliance with one of its covenants related to the Company's
various debt agreements as of December 31, 2004. The Company has successfully
negotiated amendments to such agreements, which are explained later in the
discussion contained in " -- Liquidity and Capital Resources -- Financing" and
Note 16 to the Company's Consolidated Financial Statements contained in this
report.
13
<PAGE>
RESULTS OF OPERATIONS
Consolidated
<TABLE>
<CAPTION>
YEARS ENDED DECEMBER 31,
----------------------------------
2004 2003 2002
-------- -------- --------
(Dollars in thousands)
<S> <C> <C> <C>
Revenues $542,598 $487,272 $480,358
Gross profit 99,499 102,658 125,622
Gross profit margin 18.3% 21.1% 26.2%
Operating expenses 91,321 81,067 75,439
Operating income 8,178 21,591 50,183
Operating income percentage 1.5% 4.4% 10.4%
</TABLE>
2004 Compared to 2003
Consolidated revenues from continuing operations increased 11.4% in 2004
compared to 2003. The Company experienced revenue growth in each of its three
principal operating segments, reflecting increased market penetration through
successful sales efforts and acquisitions. Increased gross profit in both the
rehabilitation and Tite Liner segments resulted from higher revenues, but was
offset by decreased margins in the tunneling segment as explained further below.
While most of the North American rehabilitation regions experienced improved
revenues and gross profit, two of the regions fell short of the prior year as a
result of competitive pressures and project delays. Adverse effects of changes
in the performance of tunneling are discussed below.
Operating expenses increased $10.3 million in 2004 compared to 2003, but
increased to 16.8% as a percentage of revenue in 2004 compared to 16.6% in 2003.
The full year impact of acquisitions completed in 2003 increased operating
expenses by $3.9 million, including amortization of intangibles of $0.6
million. The Company also added personnel for the redevelopment of the sales
force and project management of approximately $2.0 million. The Company
experienced increased professional fees of $1.7 million, along with costs of
$1.0 million associated with the implementation of regulations pursuant to the
Sarbanes-Oxley Act of 2002. The Company also incurred costs related to the
implementation of certain strategic initiatives, most notably, logistics
improvements and sales and business development training of $1.4 million.
2003 Compared to 2002
The effects of acquisitions in 2003 and 2002 added $22.2 million of
revenues in 2003. Gross profit decreased $23.0 million in 2003 compared to 2002
while gross profit margins decreased from 26.2% in 2002 to 21.1% in 2003. Two
major North American rehabilitation regions performed significantly below
historical levels due to heightening competition, lower pricing and lower market
activity. Revenues and gross profit fell by $18.8 million and $17.4 million,
respectively, from 2002 in these regions. In addition, the Company recorded $5.1
million (pre-tax) in estimated costs associated with removing and reinstalling
an Insituform CIPP Process liner in Boston, Massachusetts. The Company's
pipebursting activities in the southeast United States declined in 2003 due
primarily to the loss of unreleased term contract backlog. The gross profit
decline in this activity was $11.4 million.
Operating expenses increased in 2003 compared to 2002. Tunneling operating
expenses increased by $1.9 million in 2003 as a result of recording a reserve of
$0.8 million in claims for certain change orders that were considered
uncollectible at the end of 2003 and $0.8 million primarily related to adding
critical project management personnel to support revenue growth. Corporate
expenses in 2003 included $1.6 million in severance recorded for changes in
executive management. Bad debt expense increased by $1.5 million and adjustments
to the Company's insurance reserves based on deteriorating experience and
updated actuarial information added $3.7 million in expense. Various
acquisitions during the year added $1.3 million of expenses, which consisted
primarily of compensation. Operating expenses in 2002 included $6.0 million
related to one-time charges for restructuring and impairment recorded in 2002.
14
<PAGE>
Rehabilitation Segment
<TABLE>
<CAPTION>
YEARS ENDED DECEMBER 31,
--------------------------------------------
2004 2003 2002
---- ---- ----
(Dollars in thousands)
<S> <C> <C> <C>
Revenues $ 409,408 $ 366,690 $ 377,674
Gross profit 94,305 84,215 101,766
Gross profit margin 23.0% 23.0% 26.9%
Operating expenses 77,173 69,750 66,559
Operating income 17,132 14,465 35,208
Operating income percentage 4.2% 3.9% 9.3%
</TABLE>
Revenues
Rehabilitation revenues increased $42.7 million, or 11.6%, in 2004
compared to 2003. Full-year impact of acquisitions completed in 2003 represents
$20.3 million of this increase. Revenue growth in certain North American CIPP
regions added $34.7 million for the year. This growth is attributable to strong
backlog at the end of 2003, strong order levels in 2004, crew growth to support
sales levels and increased large-diameter work. Excluding acquisitions, European
rehabilitation revenue increased $5.4 million as a result of stronger
performance in the Netherlands and France as well as positive currency
translation impacts. Offsetting these increases were decreases in two North
American CIPP regions and manufacturing totaling $17.7 million resulting from
lower order levels, client work-release delays and, to a lesser extent, the
effect of four hurricanes, which occurred during the year.
Rehabilitation revenues decreased $11.0 million, or 2.9%, in 2003 compared
to 2002. The decline in revenue was due primarily to reduced activity
approximating $18.8 million in two major regions in North American
rehabilitation attributable to lower backlog due to less market activity, and
reduced pricing derived from increased competition and lower municipal spending.
Pipebursting and other rehabilitation operations suffered a $4.5 million decline
in 2003 primarily due to the loss of unreleased term contract backlog on a major
contract and lower demand. Acquisitions in both North America and Europe
contributed $7.0 million to rehabilitation revenues. One large job in the
Netherlands and stronger activity in Europe during the second half of 2003 added
approximately $7.5 million in revenues.
Gross Profit
Gross profit in the rehabilitation segment increased $10.1 million, or
12.0%, in 2004 compared to 2003 while gross margin percentages remained stable.
The full-year effect of acquisitions completed in 2003 accounted for a $3.7
million increase to gross profit. Certain North American CIPP regions and
manufacturing added $13.4 million in gross profit through higher revenue and
improved field productivity. Excluding acquisitions, European gross profit
increased $1.9 million attributable to currency translation and increased
margins in France. Offsetting these increases, certain North American
rehabilitation regions realized $8.9 million lower gross profit in 2004 compared
to 2003 primarily as a result of the factors which follow. Significant margin
erosion was experienced in pipebursting work due to competition and lower
pricing, while related pipebursting revenue decreased only marginally in 2004
compared to 2003. Gross profit on pipebursting decreased $4.1 million in 2004
compared to 2003. The remaining $4.8 million decline in gross profit was due to
a combination of factors. The Company experienced a continued trend of higher
healthcare costs in 2004 compared to 2003. Other factors included
weather-related effects, work-release delays and, in certain regions, price
competition. In addition, the rehabilitation segment experienced increases in
raw material costs, particularly resin, fuel and fiber costs, related to
commodity pricing fluctuations. These unfavorable incremental costs were offset
by manufacturing and logistics savings as a result of the implementation of
strategic operational initiatives.
Rehabilitation gross profit decreased $17.6 million, or 17.2%, in 2003
compared to 2002. Gross profit declined $17.4 million in two North American CIPP
regions due to lower activity. As noted earlier, the Company also experienced a
loss of $5.1 million related to the removal and reinstallation of an Insituform
CIPP Process liner in Boston, Massachusetts. The Company's pipebursting and
other rehabilitation operations also suffered $11.4 million in gross profit
declines related to lower volume from reduced backlog. These decreases were
partially offset by increases in other North American CIPP regions, which
contributed $12.0 million in additional gross profit over 2002. The Company
experienced
15
<PAGE>
higher costs related to casualty, workers compensation and healthcare insurance
caused by increased claims and cost of premiums in 2003 of approximately 25%.
Gross profit in Europe increased 36.8%, or $4.3 million, in 2003 compared to
2002 due to a slight increase in gross profit margins coupled with volume growth
in substantially all operations in the United Kingdom and Switzerland.
Operating Expenses
Operating expenses increased 10.6% or $7.4 million in 2004 compared to
2003. The full-year effect of acquisitions completed in 2003 added $3.3 million
of operating expenses. In addition to acquisitions, the Company continued to
experience increasing healthcare costs in 2004 compared to 2003. In the first
quarter of 2005, the Company modified its employee benefits structure in an
effort to reduce the impact of increasing healthcare costs. All rehabilitation
regions experienced increased operating expenses due to the implementation of
certain strategic initiatives including, but not limited to, the redevelopment
of a sales and business development force, improved logistics, product
innovation and operational excellence. The implementation of these initiatives
required additional Company personnel as well as significant consulting costs.
Operating expenses as a percentage of revenues remained relatively stable at
18.9% in 2004 compared to 19.0% in 2003.
In 2003, operating expenses in the rehabilitation segment increased 4.8%
compared to 2002. In 2003, the Company recorded $1.6 million in severance costs
recognized after changes in the Company's senior management. The Company
increased its insurance reserves due to higher premiums and actuarial analyses,
which indicated increased cost of claims. The Company recorded an additional
$1.5 million in bad debt expense, as previously noted. Acquisitions during the
year added $1.3 million of expenses, consisting primarily of compensation. These
increases were partially offset by a $6.0 million decrease as one-time charges
for restructuring and impairment recorded in 2002 did not recur in 2003.
Operating expenses as a percentage of revenues increased to 19.0% in 2003
compared to 17.6% in 2002, primarily due to severance and increases to certain
allowance accounts made in the fourth quarter of 2003.
Tunneling Segment
<TABLE>
<CAPTION>
YEARS ENDED DECEMBER 31,
--------------------------------------
2004 2003 2002
---- ---- ----
(Dollars in thousands)
<S> <C> <C> <C>
Revenues $ 108,729 $ 100,020 $ 86,297
Gross profit (3,128) 11,946 18,260
Gross profit margin (2.9)% 11.9% 21.2%
Operating expenses 10,080 7,990 6,095
Operating income (loss) (13,208) 3,956 12,165
Operating income (loss) percentage (12.1)% 4.0% 14.1%
</TABLE>
Summary
As a result of the issues encountered during the latter part of 2004 as
described below, management, in concert with outside resources, performed a
comprehensive project-by-project review of all the work in the tunneling segment
during the fourth quarter of 2004 and the early part of 2005. As a result of
this review, the estimated costs to complete and related margins on the ongoing
tunneling projects were evaluated and adjusted accordingly.
Results in the tunneling segment were disappointing in 2004. The segment
suffered significant negative gross margin adjustments on one large tunneling
project in Chicago during the year, primarily in the fourth quarter. The total
gross adjustment during the year on this project was $11.0 million, $7.3 million
of which was incurred in the fourth quarter. During the third quarter of 2004,
the Company recorded a downward adjustment to the gross margin on this project
of $3.7 million. These negative gross margin adjustments stem primarily from
additional labor and related overhead costs principally due to delays and issues
encountered while completing concrete finishing work. In addition, the project
suffered from higher-than-anticipated material costs related to inflationary
increases in concrete and steel pricing. This project had been essentially on
target with previous estimates until the later stages. These stages involved
lining of the tunnels with concrete and steel. These activities took place
primarily during the second half of 2004 and will continue to the
16
<PAGE>
completion of the project. This project was approximately 83% complete as of
December 31, 2004, and based on the latest projections, should be completed by
late 2005.
There were also unexpected job costs on a number of other tunneling
projects during the fourth quarter caused by higher-than-expected material costs
and unfavorable labor productivity issues. Additionally, several projects
incurred costs related to changed or differing site conditions, which will
likely have associated claims, which may benefit future periods. Approximately
$4.6 million of costs incurred in 2004 were related to probable claims to be
pursued. As discussed below in "- Critical Accounting Policies," claims are
recognized only when realization is reasonably assured. These claims are being
aggressively pursued, but, as in most cases, will take some time to negotiate or
litigate before being finalized and there is currently limited visibility on
what amounts would be ultimately recoverable by the Company. There were
favorable resolutions to several older claims in 2004 which resulted in $1.7
million of favorable impact.
Management also is responding to the issues experienced in the tunneling
segment and recently made several key changes. The Company's Senior Vice
President and Chief Operating Officer, Thomas W. Vaughn, is now located at the
tunneling business headquarters and will have direct responsibility for all
aspects of the operations for the foreseeable future. The Company also has taken
a number of steps to regain profitability in this segment, by upgrading and
adding necessary project and cost control management, refocusing the risk
identification and mitigation processes, and improving the bid selection
process. In addition, the Company has retained an expert in claims management to
pursue the active claims, and to implement a more proactive program within the
organization for claims management.
Revenues
Tunneling revenues increased $8.7 million, or 8.7%, in 2004 compared to
2003 due to an increased level of backlog that was acquired during the second
half of 2003 and the early part of 2004. Large projects in Chicago, Sacramento,
Oxnard, and Charleston generated a significant portion of revenue in 2004.
Tunneling revenues increased $13.7 million, or 15.9%, in 2003 compared to
2002. High productivity on several jobs contributed significantly to tunneling
revenues during 2003.
Gross Profit
Due to the issues described previously, tunneling recorded a loss at the
gross profit line of $3.1 million compared to gross profit of $11.9 million in
2003. The gross profit margin similarly fell to (2.9)% in 2004 compared to 11.9%
in 2003. It is expected that lower gross margins may continue into 2005 due to
the reduction of estimated margins, although positive, on a number of in-process
contracts in the tunneling segment, which will be completed throughout the year.
Tunneling gross profit decreased $6.3 million, or 34.6%, in 2003 compared
to 2002. Gross profit margins decreased to 11.9% in 2003 compared to 21.2% in
2002. The decrease in gross profit and gross profit margin was due primarily to
issues encountered on projects acquired as a result of the acquisition of Elmore
Pipe Jacking, Inc. in 2002.
Operating Expenses
Operating expenses increased 26.2% in 2004 compared to 2003 as a result of
adding project management and other support staff. Operating expenses as a
percentage of revenue were 9.3% in 2004 compared to 8.0% in 2003.
Operating expenses increased 29.8% in 2003 compared to 2002. Expenses in
2003 reflected a full year of operations of the acquisition of Elmore Pipe
Jacking, Inc. that was completed in May of 2002. Operating expenses as a
percentage of revenue was 8.0% in 2003 compared to 7.1% in 2002.
17
<PAGE>
Operating Income (Loss)
Tunneling generated an operating loss in 2004 compared to an operating
margin of 4.0% in 2003. The issues described in the summary above caused this
earnings' reversal in 2004. As stated previously, the Company is responding to
the operational issues in the tunneling segment.
Operating income decreased 67.5% in 2003 compared to 2002 due to lower
gross profit and higher operating expenses, as described above.
Tite Liner Segment
<TABLE>
<CAPTION>
Years Ended December 31,
--------------------------------------------
2004 2003 2002
---- ---- ----
(Dollars in thousands)
<S> <C> <C> <C>
Revenues $ 24,461 $ 20,562 $ 16,387
Gross profit 8,322 6,497 5,596
Gross profit margin 34.0% 31.6% 34.1%
Operating expenses 4,068 3,327 2,786
Operating income 4,254 3,170 2,810
Operating income percentage 17.4% 15.4% 17.1%
</TABLE>
Revenues
Tite Liner(R) revenues increased $3.9 million, or 19.0%, in 2004 compared
to 2003. A solid workload in the United States and Canada fueled much of the
revenue growth. In addition, a favorable closeout of a foreign project boosted
revenue in 2004 compared to 2003.
Tite Liner(R) revenues increased $4.2 million, or 25.5%, in 2003 compared
to 2002. Tite Liner(R) revenues responded to higher oil prices in 2003, which
created greater demand for Tite Liner(R) products.
Gross Profit
Gross profit rose $1.8 million, or 28.1%, in 2004 compared to 2003 while
the gross profit margin increased to 34.0% in 2004 compared to 31.6% in 2003.
The previously mentioned completion of certain projects as well as favorable
results in the United States and Canada combined to positively impact gross
profit and gross profit margin in the Tite Liner segment during 2004.
Gross profit increased $0.9 million, or 16.1%, in 2003 compared to 2002.
However, gross profit margin slipped to 31.6% in 2003 compared to 34.1% in 2002.
Gross profit was higher in 2003 due to higher volume, but gross profit margin
was lower due to the completion of a significant higher-margin project in South
America in 2002. In addition, a large lower-margin project that was begun in
2003 contributed to the segment's overall lower gross profit margin.
Operating Expenses
Operating expenses increased 22.2% in 2004 compared to 2003, but remained
relatively stable as a percentage of revenue.
Operating expenses were $3.3 million in 2003 compared to $2.8 million in
2002, but remained relatively stable as a percentage of revenue at 15.4% in 2003
compared to 17.1% in 2002.
18
<PAGE>
Restructuring and Asset Impairment Charges
During the third quarter of 2003, the Company reversed $0.3 million in
reserves, which were recorded in prior years and are described in the following
paragraphs.
In the third quarter of 2002, the Company recorded a pre-tax restructuring
charge of $2.5 million, which related to severance costs, asset write-downs,
lease cancellations, and certain fixed asset disposals. The remaining unused
portion of this restructuring charge of $0.3 million was reversed into income in
the third quarter of 2003.
During the third quarter of 2002, the Company determined that certain
patent, trademark, license and non-compete assets had become impaired due to
business decisions and other circumstances. The impact of the impairment charge
in 2002 was $3.5 million ($2.2 million after tax).
Other Income/Expense
Interest expense increased $1.1 million to $9.3 million in 2004 compared
to $8.2 million in 2003 due to the following factors:
<TABLE>
<CAPTION>
IMPACT
(IN MILLIONS) IN 2004
-------
<S> <C>
Full year of Series 2003-A Notes (placed April 24, 2003) $ 1.1
Increased interest rates due to debt amendments on March 12, 2004 0.7
Deferred fees writeoff due to debt amendments 0.2
Additional deferred fees amortization 0.1
Debt principal amortization - Series A Notes (1.0)
-------
Total $ 1.1
=======
</TABLE>
See "-- Liquidity and Capital Resources -- Financings" under this Item 7
for further discussion of debt instruments and related amendments.
Interest expense increased $0.3 million to $8.2 million in 2003 compared
to $7.9 million in 2002. This was due primarily to the placement of $65.0
million of Senior Notes, Series 2003-A, on April 24, 2003 at a rate of 5.29% per
annum.
Other income was $1.2 million in 2004 compared to other expense of $1.3
million in 2003. Interest income, a component of other income, was $1.4 million
in 2004 compared to $1.5 million in 2003. Other expense in 2003 included $1.4
million in losses on disposals of assets and a $1.1 million reserve for notes
receivable.
Other expense was $1.3 million in 2003 compared to other income of $3.1
million in 2002. Other income in 2002 included a $1.2 million gain on the sale
of a real estate investment, while 2003 included losses of $1.4 million on sales
and disposals of certain assets and the previously noted $1.1 million reserve
for certain notes receivable related to the prior year sale of discontinued
operations and recorded in continuing operations in the fourth quarter of 2003.
Interest income decreased to $1.5 million in 2003 compared to $1.9 million in
2002 due to lower interest rates in 2003.
19
<PAGE>
Income Taxes
The 2004 income tax benefit of $0.8 million relates primarily to the
benefit of state net operating losses generated in 2004, the benefit of Federal
motor fuels excise tax credits and the increased benefit of patent amortization
in relation to pre-tax income.
The Company's deferred tax assets in excess of deferred tax liabilities
were $3.9 million, net of a $5.0 million valuation allowance. Deferred tax
assets include $3.2 million in foreign tax credit carryforwards which begin
expiring in 2011 and $2.7 million in Federal, state and foreign net operating
loss carryforwards (NOLs), net of applicable valuation allowances.
The Company provides for U.S. income taxes, net of available foreign tax
credits, on earnings of consolidated international subsidiaries that the Company
plans to remit to the U.S. The Company does not provide for U.S. income taxes on
the remaining earnings of these subsidiaries, as the Company expects to reinvest
these earnings overseas or the Company expects the taxes to be minimal based
upon available foreign tax credits.
The American Jobs Creation Act, which was signed into law in October 2004,
creates a temporary incentive for U.S. corporations to repatriate accumulated
income earned abroad by providing an 85% dividends received deduction for
certain dividends from controlled foreign corporations. The deduction is subject
to a number of limitations and uncertainty remains as to how to interpret
numerous provisions in the American Jobs Creation Act. As such, the Company has
not determined whether, and to what extent, to repatriate foreign earnings.
See Note 12 to the Company's Consolidated Financial Statements contained
in this report for additional information regarding taxes on income.
Minority Interest and Equity in Earnings (Losses) of Affiliated Companies
Minority interest in net income principally relates to the 25% interest in
the net income of Insituform Linings Plc held by Per Aarsleff A/S, a Danish
contractor.
Equity earnings relate to two 50%-owned joint ventures in Europe,
Insituform Rohrsanierungstechniken GmbH, the Company's German joint venture, and
Insituform Italia Srl, the Company's Italian joint venture. The German joint
venture generated $0.3 million in equity earnings, but was offset by losses at
Insituform Italia of $0.5 million, which resulted in an overall equity loss of
$0.2 million in 2004. In 2003, the German joint venture accounted for $1.2
million in equity earnings, while the Company's share of Insituform Italia's
losses were $1.6 million. On January 18, 2005, the quotaholders of Insituform
Italia approved the liquidation of the Italian joint venture, and no further
losses are expected from the joint venture in 2005. Another 50% owned joint
venture in Ireland, Insituform Environmental Techniques Limited, had not
commenced operations at December 31, 2004.
Discontinued Operations
During the fourth quarter of 2001, the Company decided to sell certain
operations that were not consistent with the Company's strategy of providing
trenchless rehabilitation and tunneling services. The Company completed the sale
of these operations during 2002. Revenues from discontinued operations were $0
in 2004, $2.6 million in 2003 and $22.6 million in 2002. Loss from discontinued
operations was $0 in 2004, $1.1 million in 2003 and $5.9 million in 2002. The
lower activity in discontinued operations in 2003 was due to the winding down of
discontinued operations.
20
<PAGE>
CRITICAL ACCOUNTING POLICIES
Discussion and analysis of the Company's financial condition and results
of operations are based upon the Company's consolidated financial statements,
which have been prepared in accordance with accounting principles generally
accepted in the United States. The preparation of these financial statements
requires the Company to make estimates and judgments that affect the reported
amount of assets and liabilities, revenues and expenses, and related disclosure
of contingent assets and liabilities at the financial statement dates. Actual
results may differ from these estimates under different assumptions or
conditions.
Some accounting policies require the application of significant judgment
by management in selecting the appropriate assumptions for calculating financial
estimates. By their nature, these judgments are subject to an inherent degree of
uncertainty. The Company believes that its critical accounting policies are
limited to those described below. For a detailed discussion on the application
of these and other accounting policies, see Note 2 to the Company's Consolidated
Financial Statements contained in this report.
Revenue Recognition -- Percentage-of-Completion Method
The Company recognizes revenues and costs as construction and installation
contracts progress using the percentage-of-completion method of accounting,
which relies on total expected contract revenues and estimated total costs.
Under this method, estimated contract revenues and resulting gross profit margin
are recognized based on actual costs incurred to date as a percentage of total
estimated costs. The Company follows this method since reasonably dependable
estimates of the revenues and costs applicable to various elements of a contract
can be made. Since the financial reporting of these contracts depends on
estimates, which are assessed continually during the term of these contracts,
recognized revenues and gross profit are subject to revisions as the contract
progresses to completion. Total estimated costs, and thus contract gross profit,
are impacted by changes in productivity, scheduling, and the unit cost of labor,
subcontracts, materials and equipment. Additionally, external factors such as
weather, customer needs, customer delays in providing approvals, labor
availability, governmental regulation and politics also may affect the progress
and estimated cost of a project's completion and thus the timing of revenue
recognition and gross profit. Revisions in profit estimates are reflected in the
period in which the facts that give rise to the revision become known. When
current estimates of total contract costs indicate that the contract will result
in a loss, the projected loss is recognized in full in the period in which the
loss becomes evident. Revenues from change orders, extra work, variations in the
scope of work and claims are recognized when realization is reasonably assured,
and at estimated recoverable amounts.
Many of the Company's contracts provide for termination of the contract at
the convenience of the customer. If a contract were terminated prior to
completion, the Company would typically be compensated for progress up to the
time of termination and any termination costs. In addition, many contracts are
subject to certain completion schedule requirements with liquidated damages in
the event schedules are not met as the result of circumstances that are within
the Company's control. Losses on terminated contracts and liquidated damages
have historically not been significant.
Retainage
Many of the contracts under which the Company performs work contain
retainage provisions. Retainage refers to that portion of revenue earned and
billed by the Company but held for payment by the customer pending satisfactory
completion of the project. Unless reserved, the Company assumes that all amounts
retained by customers under such provisions are fully collectible. Retainage on
active contracts is classified as a current asset regardless of the term of the
contract. See Note 2 to the Company's Consolidated Financial Statements
contained in this report regarding classification of current assets and current
liabilities.
21
<PAGE>
Goodwill Impairment
Under Statement of Financial Accounting Standards 142, "Goodwill and Other
Intangible Assets," the Company assesses recoverability of goodwill on an annual
basis or when events or changes in circumstances indicate that the carrying
amount of goodwill may not be recoverable. Factors that could potentially
trigger an impairment review include (but are not limited to):
- significant underperformance of a segment or division relative to
expected, historical or projected future operating results;
- significant negative industry or economic trends; and
- significant changes in the strategy for a segment or division.
In accordance with the provisions of SFAS 142, the Company calculates the
fair value of its reporting units and compares such fair value to the carrying
value of the reporting unit to determine if there is any indication of goodwill
impairment. The Company's reporting units consist of North American
rehabilitation, European rehabilitation, tunneling and Tite Liner. To calculate
reporting unit fair value, the Company utilizes a discounted cash flow analysis
based upon, among other things, certain assumptions about expected future
operating performance. The Company typically engages a third party valuation
expert to assist in estimating reporting unit fair value. Estimates of
discounted cash flows may differ from actual cash flows due to, among other
things, changes in economic conditions, changes to business models, changes in
the Company's weighted average cost of capital or changes in operating
performance. An impairment charge will be recognized to the extent that the
implied fair value of the goodwill balances for each reporting unit is less than
the related carrying value.
Deferred Income Tax Assets
The Company provides for estimated income taxes payable or refundable on
current year income tax returns, as well as the estimated future tax effects
attributable to temporary differences and carryforwards, in accordance with the
Statement of Financial Accounting Standards 109, "Accounting for Income Taxes."
SFAS 109 also requires that a valuation allowance be recorded against any
deferred tax assets that are not likely to be realized in the future. The
determination is based on the ability of the Company to generate future taxable
income and, at times, is dependent on management's ability to implement
strategic tax initiatives to ensure full utilization of recorded deferred tax
assets. Should management not be able to implement the necessary tax strategies,
the Company may need to record valuation allowances for certain deferred tax
assets, including those related to foreign income tax benefits. Significant
management judgment is required in determining the provision for income taxes,
deferred tax assets and liabilities and any valuation allowances recorded
against net deferred tax assets.
Long-Lived Assets
Property, plant and equipment, goodwill and other identified intangibles
(primarily licenses, covenants not-to-compete and patents) are recorded at cost
and, except for goodwill, are amortized on a straight-line basis over their
estimated useful lives. Changes in circumstances such as technological advances,
changes to the Company's business model or changes in the Company's capital
strategy can result in the actual useful lives differing from the Company's
estimates. If the Company determines that the useful life of its property, plant
and equipment or its identified intangible assets should be shortened, the
Company would depreciate or amortize the net book value in excess of the salvage
value over its revised remaining useful life, thereby increasing depreciation or
amortization expense.
Long-lived assets, including property, plant and equipment, and other
intangibles, are reviewed by the Company for impairment annually or whenever
events or changes in circumstances indicate that the
22
<PAGE>
carrying amount of an asset may not be recoverable. Factors the Company
considers important which could trigger an impairment review include:
- significant underperformance in a region relative to expected
historical or projected future operating results;
- significant changes in the use of the assets of a region or the
strategy for the region;
- significant negative industry or economic trends;
- significant decline in the Company's stock price for a sustained
period; and
- market capitalization is significantly less than net book value.
Such impairment tests are based on a comparison of undiscounted cash flows
to the recorded value of the asset. The estimate of cash flow is based upon,
among other things, assumptions about expected future operating performance. The
Company's estimates of undiscounted cash flow may differ from actual cash flow
due to, among other things, technological changes, economic conditions, changes
to its business model or changes in its operating performance. If the sum of the
undiscounted cash flows (excluding interest) is less than the carrying value,
the Company recognizes an impairment loss, measured as the amount by which the
carrying value exceeds the fair value of the asset.
Allowance for Doubtful Accounts
Management makes estimates of the uncollectibility of the Company's
accounts receivable. Management evaluates specific accounts where the Company
has information that the customer may be unwilling or unable to pay the
receivable in full. In these cases, the Company uses its judgment, based on the
best available facts and circumstances, and records a specific allowance for
that customer against amounts due in order to reduce the receivable to the
amount that is expected to be collected. The specific allowances are
re-evaluated and adjusted as additional information is received that impacts the
amount allowed for. After all reasonable attempts to collect the receivable have
been explored, the receivable is written off against the allowance. Based on the
information available, the Company believes that the allowance for doubtful
accounts as of December 31, 2004 was adequate. However, no assurances can be
given that actual write-offs will not exceed the recorded allowance.
LIQUIDITY AND CAPITAL RESOURCES
Cash and Cash Equivalents
<TABLE>
<CAPTION>
DECEMBER 31,
-------------------------
2004 2003
---- ----
(In thousands)
<S> <C> <C>
Cash and equivalents $ 93,246 $ 93,865
--------- ---------
Restricted cash - in escrow $ 1,705 $ 1,524
Restricted cash - held as collateral - 4,602
--------- ---------
Total restricted cash $ 1,705 $ 6,126
========= =========
</TABLE>
Restricted cash held in escrow relates to deposits made as escrow for
release of retention on specific projects performed for municipalities and state
agencies. Restricted cash held as collateral related to deposits posted as
collateral for a casualty insurance policy. In the first quarter of 2004, the
Company issued letters of credit to satisfy this requirement, and the restricted
cash balance of $4.6 million was released.
At December 31, 2004, the Company had an unrestricted cash and equivalents
balance of $93.2 million compared to $93.9 million at December 31, 2003. This
position was achieved after $35.2 million in capital expenditures and $19.0
million in debt repayments in 2004. The Company also received $9.1 million in
tax refunds and $3.6 million from the exercise of stock options in 2004. The
Company expects to use these funds for a variety of purposes including working
capital to fund growth, capital and operating
23
<PAGE>
expenses, research and development of new products, and development of new
markets.
Cash Flows from Operations
The Company's primary source of cash is operations, which provided $42.6
million in 2004 compared to $31.9 million provided by continuing operations in
2003. Changes in working capital provided $15.5 million in 2004 compared to $5.2
million in 2003. Cash received from customers increased in 2004 compared to 2003
as evidenced by increased revenues and a lower accounts receivable balance.
These factors coupled with an increase in accounts payable and accrued expenses
were partially offset by increases in retainage and costs and estimated earnings
in excess of billings (unbilled receivables). Unbilled receivables arise when
costs are incurred and revenue recognized before billings can be issued to the
customer. Much of the unbilled balance relates to projects in the early stages
of construction that have to reach a certain stage of completion before progress
billings can be issued. Another significant factor in working capital changes in
2004 was the receipt of $9.1 million in tax refunds in the first quarter.
Depreciation increased by $2.0 million compared to 2003 due to increased
capital expenditures and consequently higher depreciation costs. Amortization
expense increased $0.3 million primarily due to amortization of intangibles
acquired with Insituform East, Inc. in September 2003. Amortization of
Insituform East intangibles was $0.6 million in 2004.
Continuing operations contributed $31.9 million in operating cash flow in
2003 compared to $25.6 million in 2002. After discontinued operations, operating
cash flows were $37.0 million in 2003 compared to $26.5 million in 2002.
Operating cash flow in 2003 primarily consisted of earnings before depreciation
and amortization combined with changes in working capital. Operating cash flow
in 2002 primarily consisted of earnings before depreciation and amortization
offset by cash used to invest in working capital.
Cash Flows from Investing Activities
Cash used in investing activities includes $35.2 million of capital
expenditures in 2004 compared to $19.9 million of capital expenditures in 2003.
Major capital expenditures included approximately $4.1 million for expansion and
upgrade of the Company's manufacturing facility in Batesville, Mississippi.
Other significant additions included equipment necessary for new crews and
ongoing replacement or renewal of aging equipment. The Company received $1.9
million from the disposal of fixed assets in 2004 compared to $1.4 million in
2003. Capital expenditures are expected to continue at an elevated level into
2005 as the Company continues to replace older, less efficient equipment and
expand crew capacity. In addition to capital expenditures, the Company invested
$0.8 million in its fifty-percent owned joint venture in Italy in 2004. In
January 2005, the quotaholders (stockholders) of Instituform Italia Srl, the
Company's Italian joint venture, approved the joint venture's liquidation, as
the joint venture was no longer financially viable. No further cash
contributions to the joint venture are anticipated.
Cash used in investing activities in 2003 consisted primarily of $19.9
million in capital expenditures and $7.8 million in acquisitions. The
acquisitions included Insituform East in September 2003 and Ka-Te Insituform in
November 2003. Investing activities in 2002 included $21.8 million in capital
expenditures and $8.5 million used in the acquisition of Elmore Pipe Jacking,
Inc. These cash uses were partially offset by proceeds received from the sale of
assets and businesses, mostly related to the sale of certain businesses that
were part of the Company's discontinued operations.
Cash Flows from Financing Activities
Cash flows from financing activities were primarily debt repayments of
$19.0 million in 2004. In 2003, payments on long-term debt and lines of credit
were $50.2 million, but were offset by the issuance of Senior Notes, Series
2003-A in the amount of $65.0 million. Debt repayments in 2004 primarily
consisted of a normal scheduled principal amortization of $15.7 million of the
Series A Senior Notes and the
24
<PAGE>
repayment of the Company's $3.0 million Euro note. Debt repayments were $20.9
million in 2002, but were partially offset by net borrowings on the Company's
line of credit of $10.2 million.
Total debt, including current maturities, was $112.3 million at December
31, 2004 compared to $131.3 million at December 31, 2003. The balance at the end
of 2004 principally consisted of $47.1 million of Series A Senior Notes, which
have principal amortization payments of $15.7 million due in 2005, 2006 and
2007, and $65.0 million of Series 2003-A Senior Notes, which are due in full in
2013. Interest is payable on the Senior Notes semiannually. See "-- Financings"
for a further discussion of debt.
During 2004, the Company received $3.6 million in cash from the exercise
of employee stock options compared to $0.4 million in 2003 and $2.5 million in
2002. The Company did not purchase treasury stock in 2004, but purchased $1.6
million and $5.2 million in treasury stock during 2003 and 2002, respectively.
Other Changes in Financial Condition
Net accounts receivable were $78.7 million and $90.8 million at December
31, 2004 and 2003, respectively. The decrease in accounts receivable was
partially offset by an increase in retainage and costs and estimated earnings in
excess of billings (unbilled receivables). During 2004, the Company achieved
improved cash collections, lowering its days' sales outstanding to 90 days at
December 31, 2004 compared to 100 at December 31, 2003. The calculation of days'
sales outstanding includes retainage and unbilled receivables.
Prepaid expenses and other assets increased by $2.0 million primarily due
to tax refund receivables recorded in the fourth quarter of 2004 partially
offset by the previously mentioned receipt of $9.1 million in tax refunds, which
were recorded as a receivable at December 31, 2003.
Financings
See Notes 9 and 16 to the Company's Consolidated Financial Statements
contained in this report for additional information regarding the Company's
financings.
As a result of the net loss incurred in the fourth quarter of 2004, the
Company was out of compliance with the fixed charges coverage ratio under its
Series A Senior Notes as of December 31, 2004. The actual fixed charges coverage
ratio at December 31, 2004 was 1.64 to 1.0 as compared with the required minimum
fixed charges coverage ratio under the Series A Senior Notes of 1.7 to 1.0 at
December 31, 2004. The default under the Series A Senior Notes resulted in a
cross-default under the Series 2003-A Senior Notes and the bank line of credit
facility with Bank of America. On March 16, 2005, the Series A Senior Note
holders, and the Series 2003-A Senior Note holders waived the default and
cross-default as of December 31, 2004, and amended the debt covenants under the
Series A and the Series 2003-A Senior Notes. The bank also waived the
cross-default as of December 31, 2004 and agreed to incorporate the amended debt
covenants of the Series A Senior Notes and the Series 2003-A Senior Notes into
its credit facility. The Company expects to maintain covenant compliance with
respect to the amended covenants throughout 2005 and beyond.
Effective March 16, 2005, the Company agreed to increase the interest rate
on the Series A Senior Notes from 7.88% per annum to 8.88% per annum and to
increase the interest rate on the Series 2003-A Senior Notes from 5.29% per
annum to 6.54% per annum, to obtain the default and cross-default waivers and
less restrictive financial covenants. The Company also paid its creditors
approximately $240,000 in fees for the waivers and amendments. The Company will
expense financing costs of $0.5 million in the first quarter of 2005 related to
these amendments. The table below sets forth the new covenants, which were
effective on March 16, 2005:
<TABLE>
<CAPTION>
DESCRIPTION OF COVENANT FISCAL QUARTER AMENDED COVENANT(2),(3)
----------------------- -------------- -----------------------
<S> <C> <C>
$110 MILLION 8.88% SENIOR NOTES, SERIES
A, DUE FEBRUARY 14, 2007 AND $65 MILLION
6.54% SENIOR NOTES, SERIES 2003-A, DUE
APRIL 24, 2013
Fixed charge coverage ratio(1) First quarter 2005 No less than 1.25 to 1.0
Second quarter 2005 No less than 1.25 to 1.0
Third quarter 2005 No less than 1.50 to 1.0
Fourth quarter 2005 No less than 1.75 to 1.0
First quarter 2006 No less than 2.00 to 1.0
Ratio of consolidated indebtedness to EBITDA(1) First quarter 2005 No greater than 4.25 to 1.0
Second quarter 2005 No greater than 4.00 to 1.0
Third quarter 2005 No greater than 4.00 to 1.0
Fourth quarter 2005 No greater than 3.00 to 1.0
First quarter 2006 No greater than 3.00 to 1.0
Consolidated net worth(1) First quarter 2005 and No less than $260 million plus 50% of
each quarter thereafter net income after December 31, 2004 on
a cumulative basis
Consolidated indebtedness to consolidated capitalization(1) First quarter 2005 and No greater than 0.45 to 1.0
each quarter thereafter
</TABLE>
- ----------
(1) The ratios are calculated as defined in the Note Purchase Agreements, as
amended, which have been incorporated into the Company's Annual Report on
Form 10-K for the year ended December 31, 2004 as exhibits 10.2 and 10.3.
(2) The ratios for each quarter are based on rolling four-quarter calculations
of profitability. The loss in the fourth quarter of 2004 will have a
negative impact on the ratios through the third quarter of 2005.
(3) The line of credit facility with Bank of America has incorporated the
amended covenants for the Series A Senior Notes and the Series 2003-A
Senior Notes into the line of credit agreement. See Note 9 to the
Company's Consolidated Financial Statements contained in this report for
additional information regarding the credit facility.
25
<PAGE>
These agreements also obligate the Company to comply with other
restrictive covenants that, among other things, place limitations on operations
and sales of assets by the Company or its subsidiaries, and limit the ability of
the Company to incur secured indebtedness and liens. Such agreements also
obligate the Company's subsidiaries to provide guarantees to the holders of the
Senior Notes if guarantees are given by them to certain other lenders.
In the third quarter of 2004, the Company repaid its Euro Note of
(euro)2.4 million (US $3.0 million) in full. The Euro Note's scheduled maturity
was in 2006. The premium paid to the creditor for early extinguishment was not
material.
The Company believes it has adequate resources and liquidity to fund
future cash requirements and debt repayments for at least the next twelve months
with cash generated from operations, existing cash balances, additional short-
and long-term borrowing and the sale of assets.
DISCLOSURE OF FINANCIAL OBLIGATIONS AND COMMERCIAL COMMITMENTS
The Company has entered into various financial obligations and commitments
in the course of its ongoing operations and financing strategies. Financial
obligations are considered to represent known future cash payments that the
Company is required to make under existing contractual arrangements, such as
debt and lease agreements. These obligations may result from both general
financing activities as well as from commercial arrangements that are directly
supported by related revenue-producing activities. Commercial commitments
represent contingent obligations of the Company, which become payable only if
certain pre-defined events were to occur, such as funding financial guarantees.
See Note 14 to the company's Consolidated Financial Statements contained in this
report for further discussion.
The Company has entered into several contractual joint ventures in order
to develop joint bids on contracts for its installation business and for
tunneling operations. In these cases, the Company could be required to complete
the joint venture partner's portion of the contract if the partner were unable
to complete its portion. The Company would be liable for any amounts for which
the Company itself could not complete the work and for which a third party
contractor could not be located to complete the work for the amount awarded in
the contract. While the Company would be liable for additional costs, these
costs would be offset by any related revenues due under that portion of the
contract. The Company has not experienced material adverse results from such
arrangements. Based on these facts, the Company currently does not anticipate
any future material adverse impact on its consolidated financial position,
results of operations or cash flows.
The following table provides a summary of the Company's financial
obligations and commercial commitments as of December 31, 2004 (in thousands).
This table includes cash obligations related to principal outstanding under
existing debt arrangements and operating leases.
<TABLE>
<CAPTION>
PAYMENTS DUE BY PERIOD
CASH OBLIGATIONS(1) TOTAL 2005 2006 2007 2008 2009 THEREAFTER
- -------------------------- ----- ---- ---- ---- ---- ---- ----------
<S> <C> <C> <C> <C> <C> <C> <C>
Long-term debt $ 112,283 $ 15,778 $ 15,795 $ 15,710 $ - $ - $ 65,000
Interest on long-term
debt 40,070 7,221 5,823 4,425 4,251 4,251 14,099
Line of credit facility(2) - - - - - - -
Operating leases 43,923 13,687 9,747 8,186 6,958 3,384 1,961
---------- --------- --------- --------- --------- -------- ---------
Total contractual cash
obligations $ 196,276 $ 36,686 $ 31,365 $ 28,321 $ 11,209 $ 7,635 $ 81,060
---------- --------- --------- --------- --------- -------- ---------
</TABLE>
26
<PAGE>
(1) Cash obligations herein are not discounted. See Notes 9 and 14 to the
Company's Consolidated Financial Statements contained in this report
regarding long-term debt and commitments and contingencies, respectively.
(2) As of December 31, 2004, there was no borrowing balance on the credit
facility and therefore there is no applicable interest rate as the rates
are determined on the borrowing date. The available balance was $13.0
million, and the commitment fee was 0.40%. The remaining $12.0 million was
used for non-interest bearing letters of credit, the majority of which
were collateral for insurance. The Company generally uses the credit
facility for short-term borrowings and discloses amounts outstanding as a
current liability. See Note 16 to the Company's Consolidated Financial
Statements contained in this report regarding refinancing of the line of
credit facility.
OFF-BALANCE SHEET ARRANGEMENTS
The Company uses various structures for the financing of operating
equipment, including borrowing, operating and capital leases, and sale-leaseback
arrangements. All debt, including the discounted value of future minimum lease
payments under capital lease arrangements, is presented in the consolidated
balance sheet. The Company's commitments under operating lease arrangements were
$43.9 million at December 31, 2004. The Company also has exposure under
performance guarantees by contractual joint ventures and indemnification of its
surety. However, the Company has never experienced any material adverse effects
to its consolidated financial position, results of operations or cash flows
relative to these arrangements. All foreign joint ventures are accounted for
using the equity method. The Company has no other off-balance sheet financing
arrangements or commitments. See Note 14 to the Company's Consolidated Financial
Statements contained in this report regarding commitments and contingencies.
EFFECTS OF TRANSACTIONS WITH RELATED AND CERTAIN OTHER PARTIES
Affholder, Inc., the Company's wholly-owned subsidiary that comprises the
tunneling segment, owns, or leases under long-term operating leases with
third-party leasing companies, several pieces of tunneling equipment, including
cranes and tunnel boring machines. From time to time for specific projects,
Affholder will lease additional equipment from a variety of sources. During
2004, Affholder leased four cranes and two tunnel boring machines from A-Y-K-E
Partnership. A-Y-K-E is a partnership that is controlled by Robert W. Affholder,
a member of the Company's board of directors. During the year ended December 31,
2004, Affholder paid A-Y-K-E $460,000 pursuant to equipment leases. This amount
represents 8.6% of all lease payments made by Affholder during 2004 and 2.1% of
all lease payments made by the Company in 2004. The cranes and tunnel boring
machine that are currently under lease are leased under separate lease
agreements on terms that are substantially similar to, or better than, those
otherwise available to Affholder in the market. The leases are terminable upon
30 days' prior notice by either party. During 2004, A-Y-K-E leased equipment
only to Affholder. At Affholder's discretion, Affholder may sublease the
equipment to third parties and retain any profit generated from the sublease.
NEW ACCOUNTING PRONOUNCEMENTS
For a discussion of new accounting pronouncements, see Note 2 to the
Company's Consolidated Financial Statements contained in this report.
Item 7A. Quantitative and Qualitative Disclosures about Market Risk
MARKET RISK
The Company is exposed to the effect of interest rate changes, foreign
currency and commodity price fluctuations. Due to the immateriality of potential
impacts from changes in these rates, the Company does not use derivative
contracts to manage these risks.
27
<PAGE>
Interest Rate Risk
The fair value of the Company's cash and short-term investment portfolio
at December 31, 2004 approximated carrying value. Given the short-term nature of
these instruments, market risk, as measured by the change in fair value
resulting from a hypothetical 10% change in interest rates, is not material.
The Company's objectives in managing exposure to interest rate changes are
to limit the impact of interest rate changes on earnings and cash flows and to
lower overall borrowing costs. To achieve these objectives, the Company
maintains fixed rate debt. The fair value of the Company's long-term debt,
including current maturities and the amount outstanding on the line of credit
facility, approximated its carrying value at December 31, 2004. Market risk was
estimated to be $3.1 million as the potential increase in fair value resulting
from a hypothetical 10% decrease in the Company's debt specific borrowing rates
at December 31, 2004.
Foreign Exchange Risk
The Company operates subsidiaries, and is associated with licensees and
affiliates operating solely in countries outside of the United States, and in
currencies other than the U.S. dollar. Consequently, these operations are
inherently exposed to risks associated with fluctuation in the value of the
local currencies of these countries compared to the U.S. dollar. At December 31,
2004, the Company's holdings in financial instruments denominated in foreign
currencies were immaterial.
Commodity Risk
The Company has exposure to the effect of changes in commodity pricing
related to a variety of raw materials and activities that the Company purchases
and utilizes in its operating activities, including resin, fiber, pipe and fuel.
During the year, the Company experienced increases in costs related to
unfavorable changes in commodity prices, which have been discussed in this Item
7. The Company manages this risk by entering into agreements with suppliers,
when possible, to mitigate the effects of fluctuations in the underlying
commodity markets.
28
<PAGE>
Item 8. Financial Statements and Supplementary Data
INDEX TO CONSOLIDATED FINANCIAL STATEMENTS
<TABLE>
<S> <C>
Management's Report on Internal Control Over Financial Reporting... 31
Report of Independent Registered Public Accounting Firm............ 32
Consolidated Statements of Income for the Years
ended December 31, 2004, 2003 and 2002........................... 33
Consolidated Balance Sheets, December 31, 2004 and 2003 ........... 34
Consolidated Statements of Stockholders' Equity for the Years
ended December 31, 2004, 2003 and 2002........................... 35
Consolidated Statements of Cash Flows for the Years
ended December 31, 2004, 2003 and 2002........................... 36
Notes to Consolidated Financial Statements......................... 37
</TABLE>
29
<PAGE>
MANAGEMENT'S REPORT ON INTERNAL CONTROL OVER FINANCIAL REPORTING
The Company's management is responsible for establishing and maintaining
adequate internal control over financial reporting, as such term is defined in
Exchange Act Rule 13a-15(f).
Under the supervision and with the participation of company management,
including the Chief Executive Officer and Chief Financial Officer, an evaluation
was performed of the effectiveness of the Company's internal control over
financial reporting as of the year ended December 31, 2004. In performing this
evaluation, management employed the criteria set forth by the Committee of
Sponsoring Organizations of the Treadway Commission in Internal Control -
Integrated Framework.
Based on the criteria set forth in Internal Control - Integrated Framework,
management, including the Company's Chief Executive Officer and Chief Financial
Officer, has concluded that the Company's internal control over financial
reporting was effective as of December 31, 2004.
Company management does not expect that its system of internal control over
financial reporting and procedures will prevent all misstatements due to
inherent limitations. Therefore, management's assessment provides reasonable,
but not absolute, assurance that misstatements will be prevented and/or detected
by the established internal control and procedures over financial reporting.
Our management's assessment of the effectiveness of the Company's internal
control over financial reporting as of December 31, 2004 has been audited by
PricewaterhouseCoopers LLP, an independent registered public accounting firm, as
stated in their report which appears herein.
/s/ Thomas S. Rooney, Jr.
- ----------------------------------------------------
Thomas S. Rooney, Jr.
President and Chief Executive Officer
/s/ Christian G. Farman
- ----------------------------------------------------
Christian G. Farman
Senior Vice President and Chief Financial Officer
30
<PAGE>
REPORT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
To the Board of Directors and the Stockholders of Insituform Technologies, Inc.:
We have completed an integrated audit of Insituform Technologies, Inc.'s 2004
consolidated financial statements and of its internal control over financial
reporting as of December 31, 2004 and audits of its 2003 and 2002 consolidated
financial statements in accordance with the standards of the Public Company
Accounting Oversight Board (United States). Our opinions, based on our audits,
are presented below.
Consolidated financial statements
In our opinion, the accompanying consolidated balance sheets and the related
consolidated statements of income, stockholders' equity and cash flows present
fairly, in all material respects, the financial position of Insituform
Technologies, Inc. and its subsidiaries at December 31, 2004 and 2003, and the
results of their operations and their cash flows for each of the three years in
the period ended December 31, 2004 in conformity with accounting principles
generally accepted in the United States of America. These financial statements
are the responsibility of the Company's management. Our responsibility is to
express an opinion on these financial statements based on our audits. We
conducted our audits of these statements in accordance with the standards of the
Public Company Accounting Oversight Board (United States). Those standards
require that we plan and perform the audit to obtain reasonable assurance about
whether the financial statements are free of material misstatement. An audit of
financial statements includes examining, on a test basis, evidence supporting
the amounts and disclosures in the financial statements, assessing the
accounting principles used and significant estimates made by management, and
evaluating the overall financial statement presentation. We believe that our
audits provide a reasonable basis for our opinion.
Internal control over financial reporting
Also, in our opinion, management's assessment, included in Management's Report
on Internal Control Over Financial Reporting, that the Company maintained
effective internal control over financial reporting as of December 31, 2004
based on criteria established in Internal Control - Integrated Framework issued
by the Committee of Sponsoring Organizations of the Treadway Commission (COSO),
is fairly stated, in all material respects, based on those criteria.
Furthermore, in our opinion, the Company maintained, in all material respects,
effective internal control over financial reporting as of December 31, 2004,
based on criteria established in Internal Control - Integrated Framework issued
by the COSO. The Company's management is responsible for maintaining effective
internal control over financial reporting and for its assessment of the
effectiveness of internal control over financial reporting. Our responsibility
is to express opinions on management's assessment and on the effectiveness of
the Company's internal control over financial reporting based on our audit. We
conducted our audit of internal control over financial reporting in accordance
with the standards of the Public Company Accounting Oversight Board (United
States). Those standards require that we plan and perform the audit to obtain
reasonable assurance about whether effective internal control over financial
reporting was maintained in all material respects. An audit of internal control
over financial reporting includes obtaining an understanding of internal control
over financial reporting, evaluating management's assessment, testing and
evaluating the design and operating effectiveness of internal control, and
performing such other procedures as we consider necessary in the circumstances.
We believe that our audit provides a reasonable basis for our opinions.
A company's internal control over financial reporting is a process designed to
provide reasonable assurance regarding the reliability of financial reporting
and the preparation of financial statements for external purposes in accordance
with generally accepted accounting principles. A company's internal
31
<PAGE>
control over financial reporting includes those policies and procedures that (i)
pertain to the maintenance of records that, in reasonable detail, accurately and
fairly reflect the transactions and dispositions of the assets of the company;
(ii) provide reasonable assurance that transactions are recorded as necessary to
permit preparation of financial statements in accordance with generally accepted
accounting principles, and that receipts and expenditures of the company are
being made only in accordance with authorizations of management and directors of
the company; and (iii) provide reasonable assurance regarding prevention or
timely detection of unauthorized acquisition, use, or disposition of the
company's assets that could have a material effect on the financial statements.
Because of its inherent limitations, internal control over financial reporting
may not prevent or detect misstatements. Also, projections of any evaluation of
effectiveness to future periods are subject to the risk that controls may become
inadequate because of changes in conditions, or that the degree of compliance
with the policies or procedures may deteriorate.
/s/ PricewaterhouseCoopers LLP
PricewaterhouseCoopers LLP
St. Louis, Missouri
March 16, 2005
32
<PAGE>
INSITUFORM TECHNOLOGIES, INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF INCOME
FOR THE YEARS ENDED DECEMBER 31, 2004, 2003 AND 2002
(In thousands, except per share amounts)
<TABLE>
<CAPTION>
2004 2003 2002
--------- --------- ---------
<S> <C> <C> <C>
REVENUES $ 542,598 $ 487,272 $ 480,358
COST OF REVENUES 443,099 384,614 354,736
--------- --------- ---------
GROSS PROFIT 99,499 102,658 125,622
OPERATING EXPENSES 89,385 79,733 68,049
AMORTIZATION EXPENSE 1,936 1,595 1,433
RESTRUCTURING CHARGES (Note 5) - (261) 2,458
IMPAIRMENT CHARGE (Note 6) - - 3,499
--------- --------- ---------
OPERATING INCOME 8,178 21,591 50,183
--------- --------- ---------
OTHER (EXPENSE) INCOME:
Interest expense (9,305) (8,235) (7,911)
Other (Note 11) 1,212 (1,274) 3,055
--------- --------- ---------
TOTAL OTHER EXPENSE (8,093) (9,509) (4,856)
--------- --------- ---------
INCOME BEFORE TAXES ON INCOME 85 12,082 45,327
TAX (BENEFITS) ON INCOME (Note 12) (835) 6,809 17,451
--------- --------- ---------
INCOME BEFORE MINORITY INTERESTS, EQUITY IN EARNINGS (LOSSES)
AND DISCONTINUED OPERATIONS 920 5,273 27,876
MINORITY INTERESTS (107) (211) (150)
EQUITY IN EARNINGS (LOSSES) OF AFFILIATED COMPANIES (216) (434) 834
--------- --------- ---------
INCOME FROM CONTINUING OPERATIONS 597 4,628 28,560
LOSS FROM DISCONTINUED OPERATIONS, net of tax benefits of $0,
$702 and $3,674, respectively (Note 4) - (1,103) (5,869)
--------- --------- ---------
NET INCOME $ 597 $ 3,525 $ 22,691
========= ========= =========
EARNINGS PER SHARE:
Basic:
Income from continuing operations $ 0.02 $ 0.17 $ 1.08
Loss from discontinued operations - (0.04) (0.22)
--------- --------- ---------
Net income $ 0.02 $ 0.13 $ 0.86
========= ========= =========
Diluted:
Income from continuing operations $ 0.02 $ 0.17 $ 1.07
Loss from discontinued operations - (0.04) (0.22)
--------- --------- ---------
Net income $ 0.02 $ 0.13 $ 0.85
========= ========= =========
</TABLE>
The accompanying notes are an integral part of
the consolidated financial statements.
33
<PAGE>
INSITUFORM TECHNOLOGIES, INC. AND SUBSIDIARIES
CONSOLIDATED BALANCE SHEETS - AS OF DECEMBER 31, 2004 AND 2003
(In thousands, except share information)
<TABLE>
<CAPTION>
2004 2003
---------- ----------
<S> <C> <C>
CURRENT ASSETS:
Cash and cash equivalents $ 93,246 $ 93,865
Restricted cash 1,705 6,126
Receivables, net 78,665 90,814
Retainage 25,655 24,902
Costs and estimated earnings in excess of billings 34,789 27,853
Inventories 13,339 12,935
Prepaid expenses and other assets 21,469 19,515
Assets held related to discontinued operations - 1,263
---------- ----------
Total current assets 268,868 277,273
---------- ----------
PROPERTY, PLANT AND EQUIPMENT, less accumulated depreciation 90,846 75,667
---------- ----------
OTHER ASSETS:
Goodwill 131,540 131,613
Other assets 17,567 23,807
---------- ----------
Total other assets 149,107 155,420
---------- ----------
Total assets $ 508,821 $ 508,360
========== ==========
CURRENT LIABILITIES:
Current maturities of long-term debt and line of credit $ 15,778 $ 16,938
Accounts payable and accrued expenses 85,398 82,670
Billings in excess of costs and estimated earnings 12,809 8,495
Liabilities related to discontinued operations - 1,770
---------- ----------
Total current liabilities 113,985 109,873
LONG-TERM DEBT, less current maturities 96,505 114,323
OTHER LIABILITIES 6,848 3,530
---------- ----------
Total liabilities 217,338 227,726
---------- ----------
MINORITY INTERESTS 1,647 1,465
---------- ----------
COMMITMENTS AND CONTINGENCIES (Note 14) - -
STOCKHOLDERS' EQUITY:
Preferred stock, undesignated, $.10 par - shares authorized
2,000,000; none outstanding - -
Common stock, $.01 par - shares authorized 60,000,000;
shares issued 29,100,419 and 28,815,669; shares
outstanding 26,742,955 and 26,458,205 291 288
Unearned restricted stock (1,226) (412)
Additional paid-in capital 138,695 133,794
Retained earnings 198,925 198,328
Treasury stock, at cost - 2,357,464 shares (51,596) (51,596)
Accumulated other comprehensive income (loss) 4,747 (1,233)
---------- ----------
Total stockholders' equity 289,836 279,169
---------- ----------
Total liabilities and stockholders' equity $ 508,821 $ 508,360
========== ==========
</TABLE>
The accompanying notes are an integral part of
the consolidated financial statements.
34
<PAGE>
INSITUFORM TECHNOLOGIES, INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF STOCKHOLDERS' EQUITY
FOR THE YEARS ENDED DECEMBER 31, 2004, 2003 AND 2002
(In thousands, except number of shares)
<TABLE>
<CAPTION>
Accumulated
Unearned Other
Common Stock Restricted Additional Comprehensive Total
----------------- Stock Paid-In Retained Treasury Income Stockholders' Comprehensive
Shares Amount Compensation Capital Earnings Stock (Loss) Equity Income
---------- ------ ------------ ---------- -------- --------- ------------- ------------- -------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
BALANCE, December 31, 2001 28,571,158 $ 286 - $ 129,651 $172,112 $(44,563) $(7,359) $250,127
Net income - - - - 22,691 - - 22,691 $ 22,691
Issuance of common stock
upon exercise of
options, including
income tax benefit
of $654 205,280 2 - 3,169 - - - 3,171 -
Common stock repurchased - - - - - (5,182) - (5,182) -
Foreign currency
translation adjustment - - - - - - 1,811 1,811 1,811
----------
Total comprehensive income - - - - - - - - $ 24,502
---------- ----- ------- --------- -------- -------- ------- --------- ==========
BALANCE, December 31, 2002 28,776,438 $ 288 - $ 132,820 $194,803 $(49,745) $(5,548) $272,618
Net income - - - - 3,525 - - 3,525 $ 3,525
Issuance of common stock
upon exercise of
options, including
income tax benefit
of $42 39,231 - - 472 - - - 472 -
Restricted stock issued
(See Note 10) - - $ (993) 993 - - - - -
Amortization and
forfeitures of
restricted stock - - 581 (491) - - - 90 -
Common stock repurchased - - - - - (1,851) - (1,851) -
Foreign currency
translation adjustment - - - - - - 4,315 4,315 4,315
----------
Total comprehensive - - - - - - - - $ 7,840
income ---------- ----- ------- --------- -------- -------- ------- -------- ==========
BALANCE, December 31, 2003 28,815,669 $ 288 $ (412) $ 133,794 $198,328 $(51,596) $(1,233) $279,169
Net income - - - - 597 - - 597 $ 597
Issuance of common stock
upon exercise of
options, including
income tax benefit
of $382 284,750 3 - 3,959 - - - 3,962 -
Restricted stock issued
(See Note 10) - - (1,469) 1,469 - - - - -
Amortization and
forfeitures of
restricted stock - - 655 (527) - - - 128 -
Foreign currency
translation adjustment - - - - - - 5,980 5,980 5,980
----------
Total comprehensive
income - - - - - - - - $ 6,577
---------- ----- ------- --------- -------- -------- ------- -------- ==========
BALANCE, December 31, 2004 29,100,419 $ 291 $(1,226) $ 138,695 $198,925 $(51,596) $ 4,747 $289,836
========== ===== ======= ========= ======== ======== ======= ========
</TABLE>
The accompanying notes are an integral part of
the consolidated financial statements.
35
<PAGE>
INSITUFORM TECHNOLOGIES, INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF CASH FLOWS
FOR THE YEARS ENDED DECEMBER 31, 2004, 2003 AND 2002
(In thousands)
<TABLE>
<CAPTION>
2004 2003 2002
-------- -------- --------
<S> <C> <C> <C>
CASH FLOWS FROM OPERATING ACTIVITIES:
Net income $ 597 $ 3,525 $ 22,691
Loss from discontinued operations - 1,103 5,869
-------- -------- --------
Income from continuing operations 597 4,628 28,560
Adjustments to reconcile net income to net cash provided by operating
activities, excluding the effects of acquisitions -
Depreciation 17,502 15,521 14,397
Amortization 1,936 1,595 1,433
(Gain) loss on sale of assets/investment 610 1,375 (1,225)
Write-off of debt issuance costs 226 - -
Change in restricted cash related to operating activities (181) 2,461 277
Reserve for notes receivable - 1,090 -
Other 4,922 1,912 227
Asset impairment and restructuring charge - (261) 5,957
Deferred income taxes 1,481 (1,624) (4,364)
Changes in operating assets and liabilities, net of purchased businesses
(Note 13) 15,464 5,157 (19,657)
-------- -------- --------
Net cash provided by operating activities of continuing operations 42,557 31,854 25,605
Net cash provided by operating activities of discontinued
operations - 5,192 853
-------- -------- --------
Net cash provided by operating activities 42,557 37,046 26,458
-------- -------- --------
CASH FLOWS FROM INVESTING ACTIVITIES:
Capital expenditures (35,195) (19,929) (21,782)
Proceeds from sale of fixed assets 1,904 1,365 10,503
Proceeds from sale of investment - - 1,920
Net proceeds from sale of businesses (discontinued operations) - - 5,430
Purchases of businesses, net of cash acquired - (7,776) (8,459)
Other investing activities (844) - (960)
-------- -------- --------
Net cash used by investing activities (34,135) (26,340) (13,348)
-------- -------- --------
CASH FLOWS FROM FINANCING ACTIVITIES:
Proceeds from issuance of common stock 3,580 430 2,517
Purchases of treasury stock - (1,597) (5,182)
Proceeds from long-term debt - 65,112 -
Principal payments on long-term debt and lines of credit, net (18,978) (50,224) (10,692)
Changes in restricted cash related to financing activities 4,602 (4,602) -
Deferred financing costs paid (633) (867) -
-------- -------- --------
Net cash provided by/(used in) financing activities (11,429) 8,252 (13,357)
-------- -------- --------
EFFECT OF EXCHANGE RATE CHANGES ON CASH 2,388 3,506 1,261
-------- -------- --------
NET INCREASE (DECREASE) IN CASH AND CASH EQUIVALENTS (619) 22,464 1,014
CASH AND CASH EQUIVALENTS, beginning of year 93,865 71,401 70,387
-------- -------- --------
CASH AND CASH EQUIVALENTS, end of year $ 93,246 $ 93,865 $ 71,401
======== ======== ========
SUPPLEMENTAL DISCLOSURES OF CASH FLOW INFORMATION:
Cash paid for-
Interest $ 8,501 $ 7,696 $ 7,828
Income taxes (refunded) paid (5,117) 10,307 17,591
NONCASH INVESTING AND FINANCING ACTIVITIES:
Noncompete liability recovered in settlement $ 919 $ - $ -
Notes receivable on sale of discontinued operations - - 5,000
Note payable recovered in settlement - (5,350) -
Accrued interest recovered in settlement - 557 -
Treasury stock recovered in settlement - 254 -
</TABLE>
The accompanying notes are an integral part of the
consolidated financial statements.
36
<PAGE>
INSITUFORM TECHNOLOGIES, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
1. DESCRIPTION OF BUSINESS:
Insituform Technologies, Inc. (a Delaware corporation) and subsidiaries
(collectively, the "Company") is a worldwide provider of proprietary trenchless
technologies for the rehabilitation and improvement of sewer, water, gas and
industrial pipes. The Company's primary technology is the Insituform(R) process,
a proprietary cured-in-place pipeline rehabilitation process (the "Insituform
CIPP Process"). Pipebursting is a non-proprietary trenchless method of dilating
and replacing an old pipeline with a new high-density polyethylene pipe. The
microtunneling process is a non-proprietary method of drilling a new tunnel from
surface operated equipment. Sliplining is a non-proprietary method used to push
or pull a new pipeline into an old one. The Company's Tite Liner ("Tite Liner")
process is a proprietary method of lining new and existing pipe with a corrosion
and abrasion resistant polyethylene pipe. The Company also engages in tunneling
used in the installation of new underground services.
2. SUMMARY OF ACCOUNTING POLICIES:
Principles of Consolidation
The consolidated financial statements include the accounts of the Company, its
wholly owned subsidiaries and its majority owned subsidiaries, the most
significant of which is a 75%-owned United Kingdom subsidiary, Insituform
Linings Plc. For contractual joint ventures, the Company recognizes revenue,
costs and profits on its portion of the contract using percentage-of-completion
accounting. All significant intercompany transactions and balances have been
eliminated. Certain prior period amounts have been reclassified to conform to
current presentation.
Accounting Estimates
The preparation of financial statements in conformity with accounting principles
generally accepted in the United States requires management to make estimates
and assumptions that affect the reported amounts of assets and liabilities and
disclosure of contingent assets and liabilities at the date of the financial
statements and the reported amounts of revenues and expenses during the
reporting period. Actual results could differ from those estimates.
Stock-Based Compensation
At December 31, 2004, the Company had two active stock-based compensation plans,
which are described in Note 10. The Company applies the recognition and
measurement principles of Accounting Principles Board Opinion No. 25,
"Accounting for Stock Issued to Employees," and related Interpretations in
accounting for those plans. The Company recorded after-tax, stock-based
compensation expense of $0.4 million and $0.2 million related to restricted
stock and deferred stock units (See Note 10) in 2004 and 2003, respectively.
There was no stock-based compensation expense in 2002 net income as all options
granted during those years had an exercise price equal to the market value of
the underlying common stock on the date of the grant. The following table
illustrates the effect on net income and earnings per share if the Company had
applied the fair value recognition provisions of SFAS 123, "Accounting for
Stock-Based Compensation," to stock-based compensation (in thousands, except
share data):
37
<PAGE>
<TABLE>
<CAPTION>
2004 2003 2002
--------- ------- --------
<S> <C> <C> <C>
Net income - as reported $ 597 $ 3,525 $ 22,691
Add: Total stock-based compensation expense included
in net income, net of related tax effects 416 223 -
Deduct: Total stock-based compensation expense
determined under fair value method for all awards,
net of related tax effects (2,093) (3,259) (6,080)
--------- ------- --------
Pro-forma net income (loss) $ (1,080) $ 489 $ 16,611
========= ======= ========
Basic earnings (loss) per share:
As reported $ 0.02 $ 0.13 $ 0.86
Pro-forma (0.04) 0.02 0.63
Diluted earnings (loss) per share:
As reported $ 0.02 $ 0.13 $ 0.85
Pro-forma (0.04) 0.02 0.62
</TABLE>
In 2004, the Company issued 54,000 options to employees that included an
accelerated vesting provision. These options became fully vested in December
2004. Additional after-tax expense of $0.2 million related to this vesting
provision is included in the pro-forma table above. The accelerated vesting
provision avoids future compensation expense the Company would have recognized
under SFAS 123(R), which will become effective in the third quarter of 2005.
SFAS 123(R) is more fully described in "New Accounting Pronouncements" later in
this footnote.
For SFAS 123 disclosure purposes, the weighted average fair value of stock
options is required to be based on a theoretical option-pricing model such as
the Black-Scholes method. In actuality, because the Company's stock options are
not traded on an exchange and are subject to vesting periods, the disclosed fair
value represents only an approximation of option value based solely on
historical performance.
For SFAS 148 disclosure purposes, the stock-based compensation expense recorded
in the determination of reported net income is disclosed in the above table. The
pro-forma stock-based compensation expense includes the recorded expense and
expense related to stock options that was determined using the fair value
method.
Revenues
Revenues include construction and installation revenues that are recognized
using the percentage-of-completion method of accounting in the ratio of costs
incurred to estimated final costs. Contract costs include all direct material
and labor costs and those indirect costs related to contract performance, such
as indirect labor, supplies, tools and equipment costs. Since the financial
reporting of these contracts depends on estimates, which are assessed
continually during the term of these contracts, recognized revenues and profit
are subject to revisions as the contract progresses to completion. Revisions in
profit estimates are reflected in the period in which the facts that give rise
to the revision become known. When estimates indicate that a loss will be
incurred on a contract on completion, a provision for the expected loss is
recorded in the period in which the loss becomes evident. At December 31, 2004
and 2003, the Company had provided $0.7 million and $4.7 million for expected
losses on contracts. The 2003 loss provision included $4.1 million for
additional costs related to the removal and reinstallation of an Insituform CIPP
Process liner in Boston, Massachusetts. There were no significant loss contracts
at December 31, 2004. Revenues from change orders, extra work, variations in the
scope of work and claims are recognized when realization is reasonably assured,
and at estimated recoverable amounts.
38
<PAGE>
Research and Development
The Company expenses research and development costs as incurred. Research and
development costs of $2.9 million, $2.0 million and $2.0 million for the years
ended December 31, 2004, 2003 and 2002, respectively, are included in operating
expenses in the accompanying consolidated statements of income.
Taxes on Income
The Company provides for estimated income taxes payable or refundable on current
year income tax returns as well as the estimated future tax effects attributable
to temporary differences and carryforwards, based upon enacted tax laws and tax
rates, and in accordance with Statement of Financial Accounting Standards 109,
"Accounting for Income Taxes." SFAS 109 also requires that a valuation allowance
be recorded against any deferred tax assets that are not likely to be realized
in the future.
Earnings Per Share
Earnings per share have been calculated using the following share information:
<TABLE>
<CAPTION>
2004 2003 2002
--------- ---------- -----------
<S> <C> <C> <C>
Weighted average number of common shares used for basic EPS 26,649,030 26,470,587 26,533,541
Effect of dilutive stock options, stock appreciation
rights, restricted stock and deferred stock units (Note 10) 161,450 150,105 198,221
---------- ---------- ----------
Weighted average number of common shares and dilutive
potential common stock used in diluted EPS 26,810,480 26,620,692 26,731,762
========== ========== ==========
</TABLE>
Classification of Current Assets and Current Liabilities
The Company includes in current assets and current liabilities certain amounts
realizable and payable under construction contracts which may extend beyond one
year. The construction periods on projects undertaken by the Company generally
range from one to 24 months.
Cash and Cash Equivalents
The Company classifies highly liquid investments with original maturities of 90
days or less as cash equivalents. Recorded book values are reasonable estimates
of fair value for cash and cash equivalents. Restricted cash consists of
payments from certain customers placed in escrow in lieu of retention in case of
potential issues regarding future job performance by the Company. Restricted
cash is similar to retainage and is therefore classified as a current asset,
consistent with the Company's policy on retainage.
Beginning in 2004, and for all periods presented in this report, restricted cash
is presented separately on the consolidated balance sheets and changes in
restricted cash are presented on the consolidated statements of cash flows
according to the purpose for which the restricted cash is held (i.e., operating,
investing or financing activity).
Retainage
Many of the contracts under which the Company performs work contain retainage
provisions. Retainage refers to that portion of revenue earned by the Company
but held for payment by the customer pending satisfactory completion of the
project. Unless reserved, the Company assumes that all amounts retained by
customers under such provisions are fully collectible. Retainage on active
contracts is classified as a current asset regardless of the term of the
contract. Retainage is generally collected within one year of the
39
<PAGE>
completion of a contract, although collection can take up to two years in
Europe. Retainage due after one year was approximately $3.2 million and $1.1
million at December 31, 2004 and 2003, respectively.
Allowance for Doubtful Accounts
Management makes estimates of the uncollectibility of accounts receivable and
retainage. The Company records an allowance for the greater of historical
percentages applied against aged balances, or specific accounts to reduce
receivables, including retainage, to the amount that is expected to be
collected. The specific allowances are reevaluated and adjusted as additional
information is received. After all reasonable attempts to collect the receivable
or retainage have been explored, the account is written off against the
allowance.
Inventories
Inventories are stated at the lower of cost (first-in, first-out) or market.
Actual cost is used to value raw materials and supplies. Standard cost, which
approximates actual cost, is used to value work-in-process, finished goods and
construction materials. Standard cost includes direct labor, raw materials, and
manufacturing overhead based on expected production.
Long-Lived Assets
Property, plant and equipment, and other intangibles are recorded at cost and
are amortized on a straight-line basis over their estimated useful lives.
Intangible assets are reviewed for impairment whenever events or changes in
circumstances indicate that the carrying amount of an asset may not be
recoverable based on estimated undiscounted future cash flows. If impairment is
indicated, the asset is written down to its fair value. See Note 6 regarding
intangible asset impairment in 2002.
Goodwill
Prior to 2002, the Company amortized goodwill over periods of 15 to 25 years on
the straight-line basis. SFAS 142, which was adopted by the Company on January
1, 2002, provides that goodwill should not be amortized, but shall be tested for
impairment annually, or more frequently if circumstances indicate potential
impairment. The Company recognized no amortization expense in 2004, 2003 or
2002, nor was any goodwill identified as being impaired based on management's
impairment analyses performed during 2004, 2003 and 2002. See Note 8 regarding
acquired intangible assets and goodwill.
Treasury Stock
Treasury stock is accounted for at acquisition cost.
Foreign Currency Translation
Results of operations for foreign entities are translated using the average
exchange rates during the period. Current assets and liabilities are translated
to U.S. dollars using the exchange rates in effect at the balance sheet date,
and the related translation adjustments are reported as a separate component of
stockholders' equity.
New Accounting Pronouncements
In December 2004, the FASB issued SFAS No. 123 (R), "Share-Based Payment." This
Statement revises the measurement, valuation and recognition of financial
accounting and reporting standards for stock-based employee compensation plans
contained in SFAS No. 123, "Accounting for Stock-Based Compensation." The new
rules require companies to expense the value of employee stock options and
similar share-based
40
<PAGE>
compensation awards based on fair value recognition provisions. The new
principles become effective in the third quarter of 2005. The adoption of SFAS
123 (R) by the Company on July 1, 2005 will cause the Company to expense the
fair value of its employee stock options, the impact of which is currently
disclosed in its financial statements on a pro-forma basis. While an assessment
of the effects of SFAS 123(R) has not been completed, the Company disclosed
after tax equity-based compensation expense of $2.1 million in 2004, $3.3
million in 2003 and $6.1 million in 2002, on a pro-forma basis. Any unvested
equity-based compensation instruments will be expensed beginning in the third
quarter of 2005. Pro-forma expense related to such instruments disclosed in the
first two quarters of 2005 will be recorded as expense in the third quarter of
2005.
In January 2003 (as revised December 2003), the FASB issued Interpretation No.
46, "Consolidation of Variable Interest Entities" ("FIN 46"). FIN 46 clarifies
the application of Accounting Research Bulletin No. 51, "Consolidated Financial
Statements," for certain entities in which equity investors do not have the
characteristics of a controlling financial interest or do not have sufficient
equity at risk for the entity to finance its activities without additional
subordinated financial support from other parties. FIN 46 requires that variable
interest entities, as defined, should be consolidated by the primary
beneficiary, which is defined as the entity that is expected to absorb the
majority of the expected losses, receive the majority of the gains or both. FIN
46 requires that companies disclose certain information about a variable
interest entity created prior to February 1, 2003. FIN 46 was effective for the
Company on January 1, 2004. The adoption of FIN 46 did not have a material
impact on the Company's consolidated financial position or results of
operations.
3. BUSINESS ACQUISITIONS:
In November 2003, the Company acquired the remaining interest in Ka-Te
Insituform AG for approximately $2.2 million. Ka-Te Insituform did not have a
material impact on 2003 operations.
Effective September 5, 2003, the Company acquired the business and certain
assets of Insituform East, Inc. for $5.5 million. An option to purchase certain
additional assets was included in the acquisition, which the Company exercised
for $0.6 million. The purchase resulted in intangible assets of $4.0 million
recorded as licenses, purchased backlog and customer relationships. The
Insituform East acquisition added $2.7 million in revenues and $0.1 million of
operating income from September 5, 2003 through December 31, 2003.
In July 2003, the Company purchased the remaining third party minority interest
in Video Injection S.A. The purchase price was $0.5 million and resulted in $0.3
million of additional goodwill.
In June 2003, the Company completed the acquisition of the business of Sewer
Services, Limited. The acquisition, with a price of $0.4 million, resulted in an
increase of $0.1 million in goodwill. Sewer Services had revenues of $2.5
million after the acquisition in 2003.
In May 2002, the Company acquired the business and certain assets and
liabilities of Elmore Pipe Jacking, Inc. for approximately $12.5 million. The
purchase resulted in goodwill of $8.9 million. The Elmore operations provided
revenues of $20.7 million and operating income of $1.0 million in the period
after acquisition in 2002.
The 2003 and 2002 acquisitions are not considered material individually or in
the aggregate. As a result, pro-forma information has not been presented.
4. DISCONTINUED OPERATIONS:
During the fourth quarter of 2001, the Company decided to sell certain
operations that were not consistent with the Company's strategy of providing
trenchless rehabilitation and tunneling services. The Company
41
<PAGE>
completed the sale of these operations during 2002, with net proceeds of
approximately $5.4 million. Discontinued operations were substantially resolved
in 2003.
At December 31, 2004, there were no assets or liabilities related to
discontinued operations. As of December 31, 2003 and 2002, assets related to
discontinued operations totaled $1.3 million and $7.9 million, respectively, and
included $0.1 million and $0.7 million of unbilled receivables, respectively.
Assets related to discontinued operations also included $0.6 million in
retainage receivables, $0.2 million of trade receivables, and $0.4 million of
fixed assets at December 31, 2003. Liabilities related to discontinued
operations totaled $1.8 million and $3.3 million at December 31, 2003 and 2002,
respectively. Revenues from discontinued operations were $0 in 2004, $2.6
million in 2003 and $22.6 million in 2002. Loss from discontinued operations was
$0 in 2004, $1.1 million in 2003 and $5.9 million in 2002. The lower activity in
discontinued operations in 2003 was due to the winding down of discontinued
operations.
5. RESTRUCTURING:
In the third quarter of 2002, the Company recorded a pre-tax restructuring
charge of $2.5 million, which was related to severance costs, asset write-downs,
lease cancellations, and certain fixed asset disposals. The remaining unused
portion of this restructuring charge of $0.3 million was reversed into income in
the third quarter of 2003.
6. INTANGIBLE ASSET IMPAIRMENT:
During the third quarter of 2002, the Company determined that certain patent,
trademark, license and non-compete assets had become impaired due to business
decisions and other circumstances. The impact of the impairment charge in 2002
was $3.5 million ($2.2 million after tax).
7. SUPPLEMENTAL BALANCE SHEET INFORMATION (in thousands):
Allowance for Doubtful Accounts
Activity in the allowance for doubtful accounts is summarized as follows for the
years ended December 31:
<TABLE>
<CAPTION>
2004 2003 2002
------- ------- -------
<S> <C> <C> <C>
Balance, at beginning of year $3,008 $2,175 $2,208
Charged to expense 1,143 2,027 503
Write-offs and adjustments (74) (1,194) (536)
------ ------ ------
Balance, at end of year $4,077 $3,008 $2,175
====== ====== ======
</TABLE>
In the fourth quarter of 2003, the Company increased its allowance for doubtful
accounts by $0.6 million in accordance with the Company's bad debt policy.
Costs and Estimated Earnings on Uncompleted Contracts
Costs and estimated earnings on uncompleted contracts consisted of the following
at December 31:
<TABLE>
<CAPTION>
2004 2003
---------- ----------
<S> <C> <C>
Costs incurred on uncompleted contracts $ 451,549 $ 360,897
Estimated earnings to date 68,485 89,078
--------- ---------
Subtotal 520,034 449,975
Less - Billings to date (498,054) (430,617)
--------- ---------
Total $ 21,980 $ 19,358
========= =========
</TABLE>
42
<PAGE>
<TABLE>
<S> <C> <C>
Included in the accompanying balance sheets:
Costs and estimated earnings in excess of billings $ 34,789 $ 27,853
Billings in excess of costs and estimated earnings (12,809) (8,495)
--------- ---------
Total $ 21,980 $ 19,358
========= =========
</TABLE>
Costs and estimated earnings in excess of billings represent work performed
which either due to contract stipulations or lacking contractual documentation
needed, could not be billed. Substantially all unbilled amounts are expected to
be billed and collected within one year.
Inventories
Inventories are summarized as follows at December 31:
<TABLE>
<CAPTION>
2004 2003
--------- ---------
<S> <C> <C>
Raw materials and supplies $ 1,885 $ 1,392
Work-in-process 3,006 3,246
Finished products 822 1,932
Construction materials 7,626 6,365
------- -------
Total $13,339 $12,935
======= =======
</TABLE>
Property, Plant and Equipment
Property, plant and equipment consisted of the following at December 31:
<TABLE>
<CAPTION>
Estimated Useful
Lives (Years) 2004 2003
---------------- ----------- -----------
<S> <C> <C> <C>
Land and land improvements $ 9,894 $ 9,822
Buildings and improvements 5 - 40 27,638 24,807
Machinery and equipment 4 - 10 102,781 114,628
Furniture and fixtures 3 - 10 13,194 12,106
Autos and trucks 3 - 10 33,344 5,203
Construction in progress 8,320 7,761
----------- ----------
Subtotal 195,171 174,327
Less - Accumulated depreciation and amortization of
leasehold improvements (104,325) (98,660)
----------- ----------
Total $ 90,846 $ 75,667
=========== ==========
</TABLE>
In the fourth quarter of 2003, the Company reduced the carrying value of its
fixed assets by $0.8 million as determined by its impairment analyses and
related assessments.
Other Assets
Other assets are summarized as follows at December 31:
<TABLE>
<CAPTION>
2004 2003
-------- -------
<S> <C> <C>
Investment in affiliates $ 6,375 $ 5,498
License agreements 2,463 2,721
Customer relationships 1,646 1,767
Non-compete agreements 1,450 2,069
Patents and trademarks 1,297 1,660
Deferred income taxes - 5,251
Purchased backlog - 388
Other 4,336 4,453
-------- -------
Total $ 17,567 $23,807
======== =======
</TABLE>
43
<PAGE>
Accounts Payable and Accrued Expenses
Accounts payable and accrued expenses consisted of the following at December 31:
<TABLE>
<CAPTION>
2004 2003
------- -------
<S> <C> <C>
Accounts payable - trade $50,657 $49,047
Estimated casualty and healthcare liabilities 15,049 10,620
Job costs 9,534 8,592
Compensation and bonus 6,640 6,246
Interest 2,256 2,523
Job loss reserves 715 4,653
Warranty 547 989
------- -------
Total $85,398 $82,670
======= =======
</TABLE>
In the fourth quarter of 2003, the Company increased its reserves for
self-insurance and healthcare costs by $3.7 million to reflect recent Company
experience regarding increasing claim costs and updated actuarial information.
In the fourth quarter of 2003, the Company recorded a loss job provision of $4.1
million to remove and reinstall an Insituform CIPP Process liner in Boston.
Casualty Insurance and Healthcare Reserves
The Company obtains actuarial estimates of its liabilities on a quarterly basis
and adjusts its reserves accordingly. Net increases (decreases) to these
reserves in 2004 (in millions) were:
<TABLE>
<CAPTION>
Reserves
Casualty Healthcare
Insurance Benefits
--------- ----------
<S> <C> <C>
Balances at December 31, 2003 $ 8.9 $ 1.7
First quarter 0.9 0.4
Second quarter 0.8 0.3
Third quarter 1.7 (0.4)
Fourth quarter 0.3 0.4
----- -----
Year ended December 31, 2004 3.7 0.7
----- -----
Balances at December 31, 2004 $12.6 $ 2.4
===== =====
</TABLE>
8. ACQUIRED INTANGIBLE ASSETS AND GOODWILL:
In June 2001, the FASB issued SFAS 142, "Goodwill and Other Intangible Assets,"
which required that an intangible asset that is acquired shall be initially
recognized and measured based on its fair value. This statement also provided
that certain intangible assets deemed to have an indefinite useful life, such as
goodwill, should not be amortized, but be tested for impairment annually, or
more frequently if circumstances indicate potential impairment. The Company
adopted SFAS 142 on January 1, 2002, at which time amortization of goodwill
ceased and a transitional impairment test was performed. The annual impairment
test for goodwill was performed in the fourth quarter of 2004 and 2003,
respectively. Management retained an independent party to perform a valuation of
the Company's reporting units, which consist of North American rehabilitation,
European rehabilitation, tunneling and Tite Liner, and determined that no
impairment of goodwill existed.
44
<PAGE>
Changes in the carrying amount of goodwill for the year ended December 31, 2004
were as follows (in thousands):
<TABLE>
<CAPTION>
Rehabilitation Tunneling Total
-------------- --------- ---------
<S> <C> <C> <C>
Balance as of December 31, 2003 $122,693 $ 8,920 $131,613
Foreign currency adjustment (73) - (73)
-------- -------- --------
Balance as of December 31, 2004 $122,620 $ 8,920 $131,540
======== ======== ========
</TABLE>
Intangible assets were as follows (in thousands):
<TABLE>
<CAPTION>
As of December 31, 2004
Gross Carrying Accumulated
Amount Amortization
-------------- ------------
<S> <C> <C>
Amortized intangible assets:
Patents and trademarks $ 13,943 $(12,646)
License agreements 4,803 (2,340)
Non-compete agreements 4,737 (3,287)
Customer relationships 1,797 (151)
-------- --------
Total $ 25,280 $(18,424)
======== ========
Aggregate amortization expense:
For the year ended December 31, 2004 $ 1,936
Estimated amortization expense:
For year ending December 31, 2005 $ 1,302
For year ending December 31, 2006 1,135
For year ending December 31, 2007 706
For year ending December 31, 2008 447
For year ending December 31, 2009 338
</TABLE>
9. LONG-TERM DEBT AND LINE OF CREDIT FACILITY:
Long-term debt and line of credit consisted of the following at December 31 (in
thousands):
<TABLE>
<CAPTION>
2004 2003
--------- ---------
<S> <C> <C>
7.88% Senior Notes, Series A, payable in $15,715 annual installments
beginning February 2001 through 2007, with interest payable
semiannually $ 47,140 $ 62,855
5.29% Senior Notes, Series 2003-A, due April 24, 2013 65,000 65,000
Line of credit facility - -
5.5% bank term loan,(euro)5.7 million, payable in seven equal annual
installments through July 2006, with interest payable quarterly, repaid in
September 2004 - 3,052
Other notes, including capital leases, interest rates from 5.0% to 10.5% 143 354
-------- --------
Subtotal 112,283 131,261
Less - Current maturities (15,778) (16,938)
-------- --------
Total $ 96,505 $114,323
======== ========
</TABLE>
45
<PAGE>
Principal payments required to be made for each of the next five years and
thereafter are summarized as follows (in thousands):
<TABLE>
<CAPTION>
Year Amount
---------- ---------
<S> <C>
2005 $ 15,778
2006 15,795
2007 15,710
2008 -
2009 -
Thereafter 65,000
--------
Total $112,283
========
</TABLE>
At December 31, 2004 and 2003, the estimated fair value of the Company's
long-term debt was approximately $109.1 million and $131.3 million,
respectively. Fair value was estimated using market rates for debt of similar
risk and maturity.
Senior Notes
The Series A Senior Notes may be prepaid at the Company's option on a pro
rata basis with the Series 2003-A Senior Notes, in whole or in part, at any
time, together with a make-whole premium, and upon specified change in control
events each holder has the right to require the Company to purchase its Senior
Notes without any premium. The Series 2003-A Senior Notes may be prepaid at the
Company's option on a pro rata basis with the Series A Senior Notes, in whole or
in part, at any time, together with a make-whole premium. Upon specified change
in control events each holder has the right to require the Company to purchase
its Senior Notes, Series 2003-A, without any premium.
These agreements obligate the Company to comply with certain financial
ratios and restrictive covenants that, among other things, place limitations on
operations and sales of assets by the Company or its subsidiaries, and limit the
ability of the Company to incur secured indebtedness and liens. Such agreements
also obligate the Company's subsidiaries to provide guarantees to the holders of
the Senior Notes if guarantees are given by them to certain other lenders.
The Company was not in compliance with one of its debt covenants at
December 31, 2004 under the Series A Senior Notes. See Note 16 for amendments
obtained related to covenant violations.
Line of Credit Facility
The Company has a credit facility with Bank of America which provides a
borrowing capacity of $25 million, any portion of which may be used for the
issuance of standby letters of credit. On March 16, 2005, the bank executed a
waiver of a cross-default that had occurred as of December 31, 2004 when a
covenant under the Series A Senior Note was not met. See Note 16 for amendments
obtained related to covenant violations. The bank also agreed to be subject to
the same restrictive covenants as the Series A Senior Notes and the Series
2003-A Senior Notes starting in the first quarter of 2005 and for each quarter
thereafter. The bank also requires the Company to maintain an unrestricted cash
balance of at least $50 million. The line of credit facility matures on March
31, 2006.
Under the line of credit facility, the Company pays a commitment fee equal
to 0.5% per annum on the unborrowed balance at the end of each fiscal quarter.
The Company will pay a letter of credit fee of 2.50% per annum on the aggregate
stated amount for each letter of credit that it has issued and outstanding at
the end of each fiscal quarter. Any loan under the line of credit facility will
bear interest at the rate equal to the Bank of America prime rate (5.25% at
December 31, 2004).
At December 31, 2004, $12.0 million in letters of credit were issued and
outstanding as collateral for the benefit of certain of the Company's insurance
carriers. There were no other outstanding borrowings under the line of credit
facility at December 31, 2004, resulting in $13.0 million in available borrowing
capacity under the line of credit facility as of that date.
10. STOCKHOLDERS' EQUITY:
Stock Option Plans
The 2001 Employee Equity Incentive Plan ("Employee Incentive Plan") provides for
the granting to employees of stock-based awards, including (a) stock
appreciation rights, (b) restricted shares of common stock, (c) performance
awards, (d) stock options and (e) stock units. The maximum number of shares of
common stock that currently may be issued under the Employee Incentive Plan is
2,000,000. The Employee Incentive Plan is administered by the Compensation
Committee of the Board of Directors, which determines the eligibility, timing,
pricing, amount, vesting and other terms and conditions of awards, including
stock option awards. The Company accounts for options granted under this plan in
accordance with APB 25. The exercise price of each option issued under the
Employee Incentive Plan equals the closing market price of the Company's stock
on the date of grant and, therefore, the Company makes no charge to earnings
with respect to these options. Stock options, issued under the Employee
Incentive Plan,
46
<PAGE>
generally vest over three years (with 25% vesting upon grant) and have an
expiration date of five to ten years after the date of grant.
The Company granted 65,000 restricted shares of common stock to executives and
key employees during 2004 and 57,300 restricted shares were granted in 2003. The
restrictions on grants of restricted stock expire three years after the grant
date, provided that employment continues through the restriction period.
Restricted stock expense is recorded based on the stock price on the date of
grant and recorded ratably throughout the restriction period. At December 31,
2004, there were 73,600 shares of restricted stock outstanding, and the Company
had recorded $0.1 million in after-tax compensation expense during 2004, net of
the effect of forfeitures. At December 31, 2003, there were 28,400 shares of
restricted stock outstanding and the Company had recorded $0.1 million in
compensation expense, net of the effect of forfeitures. There were no restricted
stock grants or related compensation expense in 2002.
The 2001 Non-Employee Director Equity Incentive Plan ("Non-Employee Director
Incentive Plan"), administered by the Board of Directors, provides for the
granting of stock options and deferred stock units to non-employee directors.
The total number of shares of common stock available for issuance under the
Non-Employee Director Incentive Plan is 200,000. Under the terms of the
Non-Employee Director Incentive Plan, each non-employee director receives a
stock option to purchase shares of common stock and/or deferred stock units each
year on the date of the Annual Meeting of Stockholders (or promptly thereafter,
as determined by the Board), provided that such director continues to be a
non-employee director following such Annual Meeting. The purchase price per
share of common stock for which each option is exercisable is the fair market
value per share of common stock on the date the option is granted. Each option
granted under the Non-Employee Director Incentive Plan is fully vested and
exercisable immediately, and expires not later than ten years from the date of
the grant. Each deferred stock unit represents the obligation of the Company to
transfer one share of common stock to the non-employee director at a future date
and is fully vested at grant. The Board, based on the recommendation of the
Compensation Committee, granted deferred stock units to each of the Company's
non-employee directors in 2003 and 2004 under the Non-Employee Director
Incentive Plan.
The Company granted an aggregate of 31,300 and 27,500 deferred stock units to
its Board of Directors, excluding the Company's Chief Executive Officer, in 2004
and 2003, respectively. Following termination of the director's service on the
Company's board due to death or a change in control, or six months after
termination of the director's service for any other reason, shares of the
Company's common stock equal to the number of deferred stock units reflected on
the director's account, will be distributed. A director may, while serving on
the Company's board, elect to defer the distribution date in annual installments
over a period up to five years, beginning in the year following termination of
service on the board. The Company recorded compensation expense of $0.5 million
in 2004 and $0.4 million in 2003 related to deferred stock unit grants. There
were no deferred stock unit grants or related compensation expense during 2002.
Under the 1992 Employee Stock Option Plan and Director Stock Option Plan, the
Company was authorized to grant options to its employees and directors not to
exceed 2,850,000 and 1,500,000 shares of common stock, respectively. No options
have been granted under the Employee Stock Option Plan or the Director Stock
Option Plan since the adoption of the Employee Incentive Plan and the
Non-Employee Director Incentive Plan. As of December 31, 2004, 699,729 options
granted under the Employee Plan and the Director Plan remained outstanding.
In accordance with SFAS 123, the Company has estimated the fair value of each
option grant using the Black-Scholes option-pricing model and has included in
Note 2 a table illustrating the effect on net income and earnings per share had
the Company applied the fair value recognition provisions. The following
weighted average assumptions were used for the grants in 2004, 2003 and 2002,
respectively: expected volatility of 60%, 61% and 64%; risk-free interest rates
of 4.3%, 3.0% and 3.8%; expected lives of five, six
47
<PAGE>
and six years; and no dividends. The following tables summarize information
about options outstanding at December 31, 2004:
<TABLE>
<CAPTION>
Options Outstanding Options Exercisable
------------------------------------ ----------------------
Weighted
Average Weighted Weighted
Remaining Average Average
Range of Number Contractual Exercise Number Exercise
Exercise Price Outstanding Life Price Exercisable Price
- ---------------- ----------- ------------- -------- ----------- ---------
<S> <C> <C> <C> <C> <C>
$4.00 to $10.00 59,315 2.9 years 8.75 59,315 8.75
$10.00 to $20.00 604,413 5.5 years 14.54 299,068 14.31
$20.00 and above 986,830 5.2 years 26.47 845,803 27.21
--------- ---------
1,650,558 1,204,186
========= =========
</TABLE>
<TABLE>
<CAPTION>
2004 2003 2002
---------------------- ---------------------- -----------------------
Weighted Weighted Weighted
Average Average Average
Exercise Exercise Exercise
Shares Price Shares Price Shares Price
---------- --------- ---------- --------- ---------- ---------
<S> <C> <C> <C> <C> <C> <C>
Options outstanding, beginning of
year 2,264,139 $22.23 2,150,969 $23.59 1,857,302 $22.50
Granted 417,389 16.95 371,515 12.84 676,471 23.88
Exercised (283,948) 12.61 (39,231) 11.09 (205,280) 12.26
Forfeited (747,022) 23.99 (219,114) 21.27 (177,524) 25.99
--------- --------- ---------
Options outstanding, end
of year 1,650,558 21.46 2,264,139 22.23 2,150,969 23.59
========= ========= =========
Options exercisable, end of year 1,204,186 23.09 1,780,230 22.82 1,442,413 22.28
========= ========= =========
Weighted average fair value of
options granted $10.44 $7.53 $14.26
</TABLE>
At December 31, 2004, 947,669 and 88,700 shares of common stock were reserved
for granting of awards pursuant to Employee Incentive Plan and the Non-Employee
Director Incentive Plan, respectively.
Shareholders' Rights Plan
In February 2002, the Company's Board of Directors adopted a Shareholders'
Rights Plan. Pursuant to the Shareholders' Rights Plan, the Board of Directors
declared a dividend distribution of one preferred stock purchase right for each
outstanding share of the Company's common stock, $.01 par value, payable to the
Company's stockholders of record as of March 13, 2002. Each right, when
exercisable, entitles the holder to purchase from the Company one one-hundredth
of a share of a new series of voting preferred stock, designated as Series A
Junior Participating Preferred Stock, $0.10 par value, at an exercise price of
$116.00 per one one-hundredth of a share.
The rights will trade in tandem with the common stock until 10 days after a
"distribution event" (i.e., the announcement of an intention to acquire or the
actual acquisition of 20% or more of the outstanding shares of common stock), at
which time the rights would become exercisable. Upon exercise, the holders of
the rights (other than the person who triggered the distribution event) will be
able to purchase for the exercise price, shares of common stock (or the common
stock of the entity which acquires the company) having the then market value of
two times the aggregate exercise price of the rights. The rights expire on March
12, 2012, unless redeemed, exchanged or otherwise terminated at an earlier date.
11. OTHER INCOME (EXPENSE):
Other income (expense) was comprised of the following for the years ended
December 31 (in thousands):
48
<PAGE>
<TABLE>
<CAPTION>
2004 2003 2002
-------- --------- ---------
<S> <C> <C> <C>
Interest income $1,397 $ 1,507 $ 1,898
Gain (loss) on sale/disposal of assets (610) (1,375) 1,225
Reserve for notes receivable - (1,090) -
Other 425 (316) (68)
------ ------- -------
Total $1,212 $(1,274) $ 3,055
====== ======= =======
</TABLE>
During the fourth quarter of 2003, the Company reserved $1.1 million in notes
receivable from the purchaser of certain discontinued operations.
During 2002, the Company disposed of a real estate investment acquired in a
prior year for proceeds of $1.9 million and a gain of $1.2 million, included in
the table above.
12. TAXES ON INCOME:
Income (loss) from continuing operations before taxes on income was as follows
for the years ended December 31 (in thousands):
<TABLE>
<CAPTION>
2004 2003 2002
------- ------- --------
<S> <C> <C> <C>
Domestic $(8,310) $ 4,097 $ 38,464
Foreign 8,395 7,985 6,863
------- ------- --------
Total $ 85 $12,082 $ 45,327
======= ======= ========
</TABLE>
Provisions (benefits) for taxes on income from continuing operations consisted
of the following components for the years ended December 31 (in thousands):
<TABLE>
<CAPTION>
2004 2003 2002
------- -------- --------
<S> <C> <C> <C>
Current:
Federal $(6,778) $ 3,342 $ 15,578
Foreign 4,274 4,007 3,935
State 188 1,084 2,302
------- -------- --------
Subtotal (2,316) 8,433 21,815
------- -------- --------
Deferred:
Federal 2,735 (1,581) (3,705)
Foreign (713) (56) (247)
State (541) 13 (412)
------- -------- --------
Subtotal 1,481 (1,624) (4,364)
------- -------- --------
Total tax
provision $ (835) $ 6,809 $ 17,451
======= ======== ========
</TABLE>
Income tax (benefit) expense differed from the amounts computed by applying the
U.S. federal income tax rate of 35% to income (loss) before income taxes, equity
in income (loss) of joint ventures and minority interests as a result of the
following (dollars in thousands):
<TABLE>
<CAPTION>
2004 2003 2002
------- --------- ----------
<S> <C> <C> <C>
Income taxes at U.S. federal statutory tax rate $ 30 $ 4,229 $ 15,864
Increase (decrease) in taxes resulting from:
State income taxes, net of federal income tax benefit (229) 305 1,597
Amortization of intangibles (616) (700) (700)
Effect of foreign income taxes (126) (96) 220
Valuation allowance on net operating loss carryforwards (NOL) 100 747 0
Non-deductible meals and entertainment 668 1,626 179
Federal motor fuels excise tax credit (686) 0 0
</TABLE>
49
<PAGE>
<TABLE>
<S> <C> <C> <C>
Other 24 698 291
------- ------- -------
Total (benefits) taxes on income $ (835) $ 6,809 $17,451
------- ------- -------
Effective tax rate (982.4)% 56.4% 38.5%
======= ======= =======
</TABLE>
In 2003, the Company determined that additional taxes were required to be paid
related to the Company's meals and entertainment tax deductions.
Net deferred taxes consisted of the following at December 31 (in thousands):
<TABLE>
<CAPTION>
2004 2003
-------- --------
<S> <C> <C>
Deferred income tax assets:
Foreign tax credit carryforwards $ 3,234 $ 3,046
Net operating loss carryforwards 7,686 5,479
Accrued expenses 9,291 8,106
Other 1,560 1,514
-------- --------
Total gross deferred income tax assets 21,771 18,145
-------- --------
Less valuation allowance (5,014) (4,107)
-------- --------
Net deferred income tax assets 16,757 14,038
-------- --------
Deferred income tax liabilities:
Property, plant and equipment $ (8,849) $ (6,021)
Other (4,043) (2,766)
-------- --------
Total deferred income tax liabilities (12,892) (8,787)
-------- --------
Net deferred income tax assets $ 3,865 $ 5,251
======== ========
</TABLE>
The Company's tax assets and liabilities, netted by taxing location, are in the
following captions in the balance sheet (in thousands):
<TABLE>
<CAPTION>
2004 2003
------- -------
<S> <C> <C>
Current deferred income tax assets, net $ 6,878 $ 0
Noncurrent deferred income tax assets (liabilities), net (3,013) 5,251
------- -------
$ 3,865 $ 5,251
======= =======
</TABLE>
The Company's deferred tax assets at December 31, 2004 include $7.7 million in
Federal, state and foreign net operating loss carryforwards. These NOLs include
$2.0 million, which if not used will expire between the years 2005 and 2024, and
$5.7 million that has no expiration. The Company also has foreign tax credit
carryforwards of $3.2 million, which will begin to expire in 2011.
For financial reporting purposes, a valuation allowance of $5.0 million has been
recognized, to reduce the deferred tax assets related to certain state and
foreign net operating loss carryforwards, for which it is more likely than not
that the related tax benefits will not be realized, due to uncertainties as to
the timing and amounts of future taxable income.
Management has reviewed the Company's historical levels of taxable income,
estimates of future taxable income, and expiration periods of net operating loss
carryforwards and has concluded that it is more likely than not that the net
deferred tax assets of $3.9 million at December 31, 2004 will be realized.
13. CHANGES IN OPERATING ASSETS:
The following are the cash flow effects of changes in operating assets,
excluding the effect of acquisitions and divestitures:
<TABLE>
<CAPTION>
2004 2003 2002
-------- -------- -------
<S> <C> <C> <C>
Receivables, net, retainage and costs and estimated
earnings in excess of billings $ 4,460 $ 1,614 $ (9,921)
Inventories (404) (200) 1,313
Prepaid expenses and other assets 2,818 (4,605) (2,414)
Accounts payable and accrued expenses 8,590 8,348 (8,635)
-------- -------- --------
Total $ 15,464 $ 5,157 $(19,657)
======== ======== ========
</TABLE>
50
<PAGE>
14. COMMITMENTS AND CONTINGENCIES:
Leases
The Company leases a number of its administrative operations facilities under
noncancellable operating leases expiring at various dates through 2020. In
addition, the Company leases certain construction, automotive and computer
equipment on a multi-year, monthly or daily basis. Rental expense in 2004, 2003
and 2002 was $21.3 million, $17.6 million and $18.6 million, respectively.
Rental expense paid to a related party was $460,000, $510,000 and $600,000 for
the years ended December 31, 2004, 2003 and 2002, respectively.
At December 31, 2004, the future minimum lease payments required under the
noncancellable operating leases were as follows (in thousands):
<TABLE>
<CAPTION>
Year Minimum Lease Payments
- ---------- ----------------------
<S> <C>
2005 $13,687
2006 9,747
2007 8,186
2008 6,958
2009 3,384
After 2009 1,961
-------
Total $43,923
=======
</TABLE>
Litigation
In the third quarter of 2002, an accident on an Insituform CIPP Process project
in Des Moines, Iowa resulted in the death of two workers and the injury of five
workers. The Company fully cooperated with Iowa's state OSHA in the
investigation of the accident. Iowa OSHA issued a Citation and Notification of
Penalty in connection with the accident, including several willful citations.
Iowa OSHA proposed penalties of $808,250. The Company challenged Iowa OSHA's
findings, and in the fourth quarter of 2003, an administrative law judge reduced
the penalties to $158,000. In the second quarter of 2004, the Iowa Employment
Appeal Board reinstated many of the original penalties, ordering total penalties
in the amount of $733,750. The Company is vigorously opposing the citations and,
in connection therewith, filed a notice of appeal with the Iowa district court.
On February 4, 2005, the Iowa district court heard oral arguments from the
Company and the Employment Appeal Board regarding the appeal.
In July 2004, three separate civil actions were filed in the Iowa district court
of Polk County with respect to the Des Moines accident. The first complaint,
filed by family members and the Estate of Brian Burford on July 7, 2004, named
the Company, Insituform Technologies USA, Inc. (a wholly owned subsidiary of
the Company), the City of Des Moines and 15 current or former employees of the
Company as defendants. The two other actions, filed on July 6, 2004 by (1)
family members and the Estate of Daniel Grasshoff and (2) Michael Walkenhorst,
James E. Johnson and Linda Johnson, named the City of Des Moines and the 15
current or former employees of the Company as defendants, but did not name the
Company or Insituform USA as defendants. The complaints filed with respect to
Messrs. Burford and Grasshoff alleged wrongful death, negligence, gross
negligence and civil conspiracy. The complaint filed with respect to Messrs.
Walkenhorst and Johnson alleged gross negligence and civil conspiracy. The
Company believes that the allegations in each of the complaints are without
merit and that the workers' compensation statutes provide the exclusive remedy
to the plaintiffs for the deaths and injuries that occurred as a result of the
Des Moines accident. The Company intends to vigorously defend the actions. Each
complaint sought unspecified damages, including punitive damages.
In December 2003, Environmental Infrastructure Group, L.P. ("EIG") filed suit in
the district court of Harris County, Texas, against several defendants,
including Kinsel Industries, Inc., a wholly-owned subsidiary of the Company,
seeking unspecified damages. The suit alleges, among other things, that Kinsel
51
<PAGE>
failed to pay EIG monies due under a subcontractor agreement. In February 2004,
Kinsel filed an answer, generally denying all claims, and also filed a
counter-claim against EIG based upon EIG's failure to perform work required of
it under the subcontract. In June 2004, EIG amended its complaint to add the
Company as an additional defendant and include a claim for lost opportunity
damages. The Company believes that the factual allegations and legal claims made
against it and Kinsel are without merit and intends to vigorously defend them.
Boston Installation
In August 2003, the Company began an Insituform CIPP Process installation in
Boston. The $1 million project required the Company to line 5,400 feet of a
109-year-old, 36- to 41-inch diameter unusually shaped hand-laid rough brick
pipe. Many aspects of this project were atypical of the Company's normal
Insituform CIPP Process installations. Following installation, the owner
rejected approximately 4,500 feet of the liner and all proposed repair methods.
All rejected liner was removed and re-installed, and the Company recorded a loss
of $5.1 million on this project in the year ended December 31, 2003. The lines
are now back in service and the contract is now in a warranty period. The
Company will be required to inspect the lines in early 2005 to determine if any
problems exist. The Company believes that it has adequately reserved for
potential warranty costs at December 31, 2004.
The Company has a "Contractor Rework" special endorsement to its primary
comprehensive general liability insurance policy. The Company filed a claim with
its primary insurance carrier relative to rework of the Boston project. The
carrier paid the Company the primary coverage of $1 million, less a $250,000
deductible, in satisfaction of its obligations under the policy.
The Company has excess comprehensive general liability insurance coverage. The
excess insurance coverage is in an amount far greater than the estimated costs
associated with the liner removal and re-installation. The Company believes the
"Contractor Rework" special endorsement applies to the excess insurance
coverage; it has already incurred costs in excess of the primary coverage and it
has put its excess carrier on notice. The excess insurance carrier denied
coverage in writing without referencing the "Contractor Rework" special
endorsement, and subsequently indicated that it does not believe that the
"Contractor Rework" special endorsement applies to the excess insurance
coverage.
On March 10, 2004, the Company filed a lawsuit in Massachusetts against its
excess insurance carrier for its failure to acknowledge coverage and to
indemnify the Company for the entire loss in excess of the primary coverage. The
excess insurance carrier filed an answer in response. In early 2005, the court
heard separate motions for summary judgment filed by the Company and the excess
insurance carrier. The Company is vigorously pursuing a full recovery of the
loss. The Company did not recognize any of the potential excess carrier
insurance recovery at December 31, 2004.
Other Litigation
The Company is involved in certain other litigation incidental to the conduct of
its business and affairs. Management, after consultation with legal counsel,
does not believe that the outcome of any such other litigation will have a
material adverse effect on its consolidated financial condition, results of
operations or cash flows.
Retirement Plans
Substantially all of the Company's employees are eligible to participate in the
Company sponsored defined contribution savings plan, which is a qualified plan
under the requirements of Section 401(k) of the Internal Revenue Code. Total
Company contributions to the domestic plan were $1.9 million, $1.6 million and
$1.7 million for the years ended December 31, 2004, 2003 and 2002, respectively.
52
<PAGE>
In addition, certain foreign subsidiaries maintain various other defined
contribution retirement plans. Company contributions to such plans for the years
ended December 31, 2004, 2003 and 2002 were $1.0 million, $0.6 million and $0.2
million, respectively.
Guarantees
The Company has entered into several contractual joint ventures in order to
develop joint bids on contracts for its installation business and for tunneling
operations. In these cases, the Company could be required to complete the joint
venture partner's portion of the contract if the partner were unable to complete
its portion. The Company would be liable for any amounts for which the Company
itself could not complete the work and for which a third party contractor could
not be located to complete the work for the amount awarded in the contract.
While the Company would be liable for additional costs, these costs would be
offset by any related revenues due under that portion of the contract. The
Company has not experienced material adverse results from such arrangements.
Based on these facts, while there can be no assurances, the Company currently
does not anticipate any future material adverse impact on its consolidated
financial position, results of operations or cash flows.
The Company also has many contracts that require the Company to indemnify the
other party against loss from claims of patent or trademark infringement. The
Company also indemnifies its surety against losses from third party claims of
subcontractors. The Company has not experienced material losses under these
provisions and, while there can be no assurances, currently does not anticipate
any future material adverse impact on its consolidated financial position,
results of operations or cash flows.
The Company regularly reviews its exposure under all its engagements, including
performance guarantees by contractual joint ventures and indemnification of its
surety. As a result of the most recent review, the Company has determined that
the risk of material loss is remote under these arrangements and has not
recorded a liability for these risks at December 31, 2004 on its consolidated
balance sheet.
15. SEGMENT AND GEOGRAPHIC INFORMATION:
The Company has principally three operating segments: rehabilitation; tunneling;
and Tite Liner. The segments were determined based upon the types of products
sold by each segment and each is regularly reviewed and evaluated separately.
The rehabilitation segment provides trenchless methods of rehabilitating sewers,
pipelines and other conduits using a variety of technologies including the
Insituform CIPP Process, pipebursting, microtunneling and sliplining. The
tunneling segment engages in tunneling used in the installation of new
underground services, large diameter microtunneling and sliplining. The Tite
Liner segment provides a method of lining new and existing pipe with a corrosion
and abrasion resistant polyethylene pipe. These operating segments represent
strategic business units that offer distinct products and services and serve
different markets.
The following disaggregated financial results have been prepared using a
management approach, which is consistent with the basis and manner with which
management internally disaggregates financial information for the purpose of
assisting in making internal operating decisions. The Company evaluates
performance based on stand-alone operating income.
There were no customers which accounted for more than 10% of the Company's
revenues during each of the three years ended December 31, 2004, 2003 and 2002.
53
<PAGE>
Financial information by segment was as follows at December 31 (in thousands):
<TABLE>
<CAPTION>
2004 2003 2002
---------- -------- --------
<S> <C> <C> <C>
Revenues:
Rehabilitation $ 409,408 $366,690 $377,674
Tunneling 108,729 100,020 86,297
Tite Liner 24,461 20,562 16,387
--------- -------- --------
Total revenues $ 542,598 $487,272 $480,358
========= ======== ========
Operating income (loss):
Rehabilitation $ 17,132 $ 14,465 $ 35,208
Tunneling (13,208) 3,956 12,165
Tite Liner 4,254 3,170 2,810
--------- -------- --------
Total operating income $ 8,178 $ 21,591 $ 50,183
========= ======== ========
Total assets:
Rehabilitation $ 301,006 $300,198 $315,377
Tunneling 73,822 68,494 63,218
Tite Liner 9,349 4,906 6,204
Corporate 124,644 133,499 80,305
Discontinued - 1,263 7,909
--------- -------- --------
Total assets $ 508,821 $508,360 $473,013
========= ======== ========
Capital expenditures:
Rehabilitation $ 22,002 $ 10,482 $ 6,093
Tunneling 8,549 7,005 12,941
Tite Liner 1,322 1,051 353
Corporate 3,322 1,391 2,395
--------- -------- --------
Total capital expenditures $ 35,195 $ 19,929 $ 21,782
========= ======== ========
Depreciation and amortization:
Rehabilitation $ 12,278 $ 10,146 $ 10,035
Tunneling 4,099 3,811 2,570
Tite Liner 797 1,280 880
Corporate 2,264 1,879 2,345
--------- -------- --------
Total depreciation and amortization $ 19,438 $ 17,116 $ 15,830
========= ======== ========
</TABLE>
During 2004, the tunneling segment experienced significant negative gross margin
adjustments on one large tunneling project in the amount of $11.0 million, $7.3
million of which occurred in the fourth quarter. During the third quarter of
2004, the Company recorded a downward adjustment to the gross margin on this
project of $3.7 million.
Financial information by geographic area was as follows at December 31 (in
thousands):
<TABLE>
<CAPTION>
2004 2003 2002
-------- -------- --------
<S> <C> <C> <C>
Revenues:
United States $439,618 $401,174 $408,218
Canada 25,595 22,767 19,339
Other foreign 77,385 63,331 52,801
-------- -------- --------
Total revenues $542,598 $487,272 $480,358
======== ======== ========
Operating income:
United States $ 946 $ 13,525 $ 43,502
Canada 4,005 3,327 2,616
Other foreign 3,227 4,739 4,065
-------- -------- --------
Total operating income $ 8,178 $ 21,591 $ 50,183
======== ======== ========
</TABLE>
54
<PAGE>
<TABLE>
<S> <C> <C> <C>
Long-lived assets:
United States $ 88,442 $ 80,641 $ 70,924
Canada 2,066 2,330 2,772
Other foreign 17,905 16,503 15,634
-------- -------- --------
Total long-lived assets $108,413 $ 99,474 $ 89,330
======== ======== ========
</TABLE>
55
<PAGE>
16. SUBSEQUENT EVENTS:
As a result of the net loss incurred in the fourth quarter of 2004, the
Company was out of compliance with the fixed charges coverage ratio under its
Series A Senior Notes as of December 31, 2004. The actual fixed charges coverage
ratio at December 31, 2004 was 1.64 to 1.0 as compared with the required minimum
fixed charges coverage ratio under the Series A Senior Notes of 1.7 to 1.0 at
December 31, 2004. The default under the Series A Senior Notes resulted in a
cross-default under the Series 2003-A Senior Notes and the bank line of credit
facility with Bank of America. On March 16, 2005, the Series A Senior Note
holders and the Series 2003-A Senior Note holders waived the default and
cross-default as of December 31, 2004, and amended the debt covenants under the
Series A and the Series 2003-A Senior Notes. The bank also waived the
cross-default as of December 31, 2004 and agreed to incorporate the amended debt
covenants of the Series A Senior Notes and the Series 2003-A Senior Notes into
its credit facility. The Company expects to maintain covenant compliance with
respect to the amended covenants throughout 2005 and beyond.
Effective March 16, 2005, the Company agreed to increase the interest rate
on the Series A Senior Notes from 7.88% per annum to 8.88% per annum and to
increase the interest rate on the Series 2003-A Senior Notes from 5.29% per
annum to 6.54% per annum, to obtain the default and cross-default waivers and
the less restrictive financial covenants. The Company also paid its creditors
approximately $240,000 in fees to obtain the waivers and amendments. The Company
will expense financing costs of $0.5 million in the first quarter of 2005
related to these amendments. The table below sets forth the new covenants, which
were effective on March 16, 2005:
<TABLE>
<CAPTION>
DESCRIPTION OF COVENANT FISCAL QUARTER AMENDED COVENANT(2),(3)
----------------------- -------------- -----------------------
<S> <C> <C>
$110 MILLION 8.88% SENIOR NOTES, SERIES A, DUE FEBRUARY 14,
2007 AND $65 MILLION 6.54% SENIOR NOTES, SERIES 2003-A, DUE
APRIL 24, 2013
Fixed charge coverage ratio(1) First quarter 2005 No less than 1.25 to 1.0
Second quarter 2005 No less than 1.25 to 1.0
Third quarter 2005 No less than 1.50 to 1.0
Fourth quarter 2005 No less than 1.75 to 1.0
First quarter 2006 No less than 2.00 to 1.0
Ratio of consolidated indebtedness to EBITDA(1) First quarter 2005 No greater than 4.25 to 1.0
Second quarter 2005 No greater than 4.00 to 1.0
Third quarter 2005 No greater than 4.00 to 1.0
Fourth quarter 2005 No greater than 3.00 to 1.0
First quarter 2006 No greater than 3.00 to 1.0
Consolidated net worth(1) First quarter 2005 and No less than $260 million plus 50% of
each quarter thereafter net income after December 31, 2004 on a
cumulative basis
Consolidated indebtedness to consolidated capitalization(1) First quarter 2005 and No greater than 0.45 to 1.0
each quarter thereafter
</TABLE>
- ------------
(1) The ratios are calculated as defined in the Note Purchase Agreements, as
amended, which have been incorporated into the Company's Annual Report on
Form 10-K for the year ended December 31, 2004 as exhibits 10.2 and 10.3.
(2) The ratios for each quarter are based on rolling four-quarter calculations
of profitability. The loss in the fourth quarter of 2004 will have a
negative impact on the ratios through the third quarter of 2005.
(3) The line of credit facility with Bank of America has incorporated the
amended covenants for the Series A Senior Notes and the Series 2003-A
Senior Notes into the line of credit agreement. See Note 9 for additional
information regarding the credit facility.
17. SELECTED QUARTERLY FINANCIAL DATA (UNAUDITED):
(In thousands, except per share data)
<TABLE>
<CAPTION>
First Second Third Fourth(1,2)
-------- ---------- ---------- ----------
<S> <C> <C> <C> <C>
Year ended December 31, 2004:
Revenues $127,914 $ 142,434 $ 144,821 $ 127,429
Gross profit 25,367 30,564 30,276 13,292
Operating income (loss) 3,375 7,590 8,075 (10,862)
Net income (loss) 502 3,156 3,526 (6,587)
Basic earnings per share:
Income (loss) from continuing operations 0.02 0.12 0.13 (0.25)
Diluted earnings per share:
-------- --------- --------- ---------
Net income (loss) 0.02 0.12 0.13 (0.25)
Year ended December 31, 2003:
Revenues $123,348 $ 124,778 $ 117,360 $ 121,786
Gross profit 28,269 29,267 27,419 17,703
Operating income (loss) 11,186 10,285 7,771 (7,651)
Income (loss) from continuing operations 6,351 4,877 3,500 (10,100)
</TABLE>
56
<PAGE>
<TABLE>
<S> <C> <C> <C> <C>
Income (loss) from discontinued operations 276 (292) (215) (872)
Net income (loss) 6,627 4,585 3,285 (10,972)
Basic earnings (loss) per share:
Income (loss) from continuing operations 0.24 0.18 0.13 (0.38)
Income (loss) from discontinued operations 0.01 (0.01) (0.01) (0.03)
----- ----- ----- -------
Net income (loss) 0.25 0.17 0.12 (0.41)
Diluted earnings (loss) per share:
Income (loss) from continuing operations 0.24 0.18 0.13 (0.38)
Income (loss) from discontinued operations 0.01 (0.01) (0.01) (0.03)
----- ----- ----- -------
Net income (loss) 0.25 0.17 0.12 (0.41)
</TABLE>
_______________
(1) See Note 15 for a description of issues experienced in the tunneling
segment in 2004.
(2) See Notes 7, 11 and 12 for discussion of certain fourth quarter 2003
items.
57
<PAGE>
Item 9. Changes in and Disagreements with Accountants on Accounting and
Financial Disclosure
Not applicable.
Item 9A. Controls and Procedures
The Company's Chief Executive Officer and Chief Financial Officers
carried out an evaluation of the effectiveness of the Company's disclosure
controls and procedures (as defined in Exchange Act Rules 13a-15(e) and
15d-15(e)) as of December 31, 2004. Based on their evaluation, the Chief
Executive Officer and Chief Financial Officer have concluded that the Company's
disclosure controls were effective at December 31, 2004.
The Company maintains internal controls and procedures designed to
ensure that it is able to collect the information subject to required disclosure
in reports it files with the United States Securities and Exchange Commission
(the "SEC"), and to process, summarize and disclose this information within the
time specified by the rules set forth by the SEC.
Pursuant to Section 404 of the Sarbanes-Oxley Act, the Company has
included a report that provides management's assessment of the Company's
internal control over financial reporting as part of this Annual Report on Form
10-K for the year ended December 31, 2004. The Company's independent registered
public accounting firm attested to, and reported on, this report. Their
attestation report, along with management's report, are included in Item 8 of
this report under the captions entitled "Report of Independent Registered Public
Accounting Firm" and "Management's Report on Internal Control Over Financial
Reporting," respectively, and are incorporated herein by reference.
There were changes in the Company's internal control over financial
reporting that occurred during the Company's quarter ended December 31, 2004
that materially affected, or are reasonably likely to materially affect, the
Company's internal control over financial reporting.
During the fourth quarter of 2004, and during the period leading up to
the filing of the Company's Annual Report on Form 10-K for the year ended
December 31, 2004, enhancements of internal control took place, specifically in
the tunneling segment, as follows:
- enhanced monthly project status review procedures and reporting;
- increased supervisory and management reviews of project risks and
controls; and
- improved procedures concerning bid selection and risk mitigation
processes.
Item 9B. Other Information
Not applicable.
PART III
Item 10. Directors and Executive Officers of the Registrant
For information concerning this item, see "Item 4A. Executive Officers
of the Registrant" and the proxy statement to be filed with respect to the 2005
Annual Meeting of Stockholders (the "2005 Proxy Statement"), which information
is incorporated herein by reference.
58
<PAGE>
Item 11. Executive Compensation
For information concerning this item, see the 2005 Proxy Statement,
which information is incorporated herein by reference.
Item 12. Security Ownership of Certain Beneficial Owners and Management and
Related Stockholder Matters
For information concerning this item, see the 2005 Proxy Statement,
which information is incorporated herein by reference.
Item 13. Certain Relationships and Related Transactions
For information concerning this item, see the 2005 Proxy Statement,
which information is incorporated herein by reference.
Item 14. Principal Accountant Fees and Services
For information concerning this item, see the 2005 Proxy Statement,
which information is incorporated herein by reference.
PART IV
Item 15. Exhibits and Financial Statement Schedules
(a) 1. Financial Statements:
The consolidated financial statements filed in this Annual Report on
Form 10-K are listed in the Index to Consolidated Financial Statements included
in "Item 8. Financial Statements and Supplementary Data," which information is
incorporated herein by reference.
2. Financial Statement Schedules:
No financial statement schedules are included herein because of the
absence of conditions under which they are required or because the required
information is contained in the consolidated financial statements or notes
thereto contained in this report.
3. Exhibits:
The exhibits required to be filed as part of this Annual Report on Form
10-K are listed in the Index to Exhibits attached hereto.
59
<PAGE>
SIGNATURES
Pursuant to the requirements of Section 13 or 15(d) of the Securities
Exchange Act of 1934, the registrant has duly caused this report to be signed on
its behalf by the undersigned, thereunto duly authorized.
Dated: March 16, 2005 INSITUFORM TECHNOLOGIES, INC.
By: /s/ Christian G. Farman
-------------------------
Christian G. Farman
Senior Vice President and
Chief Financial Officer
POWER OF ATTORNEY
The registrant and each person whose signature appears below hereby
appoint Thomas S. Rooney, Jr. and Christian G. Farman as attorneys-in-fact with
full power of substitution, severally, to execute in the name and on behalf of
the registrant and each such person, individually and in each capacity stated
below, one or more amendments to the annual report which amendments may make
such changes in the report as the attorney-in-fact acting deems appropriate and
to file any such amendment to the report with the Securities and Exchange
Commission.
Pursuant to the requirements of the Securities Exchange Act of 1934, this
report has been signed below by the following persons on behalf of the
registrant and in the capacities and on the dates indicated.
Signature Title Date
/s/ Thomas S. Rooney, Jr. Principal Executive Officer and March 16, 2005
- --------------------------- Director
Thomas S. Rooney, Jr.
/s/ Christian G. Farman Principal Financial and March 16, 2005
- --------------------------- Accounting Officer
Christian G. Farman
/s/ Alfred L. Woods Director March 16, 2005
- ---------------------------
Alfred L. Woods
/s/ Robert W. Affholder Director March 16, 2005
- ---------------------------
Robert W. Affholder
/s/ Paul A. Biddelman Director March 16, 2005
- ---------------------------
Paul A. Biddelman
/s/ Stephen P. Cortinovis Director March 16, 2005
- ---------------------------
Stephen P. Cortinovis
60
<PAGE>
/s/ John P. Dubinsky Director March 16, 2005
- ---------------------------
John P. Dubinsky
/s/ Juanita H. Hinshaw Director March 16, 2005
- ---------------------------
Juanita H. Hinshaw
Director March 16, 2005
- ---------------------------
Thomas Kalishman
/s/ Alfred T. McNeill Director March 16, 2005
- ---------------------------
Alfred T. McNeill
/s/ Sheldon Weinig Director March 16, 2005
- ---------------------------
Sheldon Weinig
61
<PAGE>
INDEX TO EXHIBITS (1,2)
3.1 Restated Certificate of Incorporation, as amended, of the Company
(incorporated by reference to Exhibit 3.1 to the quarterly report on
Form 10-Q for the quarter ended June 30, 2000), and Certificate of
Designation, Preferences and Rights of Series A Junior Participating
Preferred Stock (incorporated by reference to Exhibit 3.1 to the annual
report on Form 10-K for the year ended December 31, 2001).
3.2 Amended and Restated By-Laws of the Company, as amended through July
22, 2003 (incorporated by reference to Exhibit 3.1 to the quarterly
report on Form 10-Q for the quarter ended June 30, 2003).
4 Rights Agreement dated as of February 26, 2002 between Insituform
Technologies, Inc. and American Stock Transfer & Trust Company
(incorporated by reference to Exhibit 1 to the Registration Statement
on Form 8-A dated March 8, 2002).
10.1 Credit Agreement (the "Credit Agreement") dated as of March 27, 2003
among the Company, Bank of America, N.A. as Administrative Agent, and
Letter of Credit Issuing Lender and the other Financial Institutions
party thereto (incorporated by reference to Exhibit 10.1 to the annual
report on Form 10-K for the year ended December 31, 2002), as amended
by First Amendment to Credit Agreement dated as of November 26, 2003
(incorporated by reference to Exhibit 10.1 to the current report on
Form 8-K dated and filed December 1, 2003), as amended and superseded
by Amended and Restated Credit Agreement dated as of March 12, 2004
(incorporated by reference to Exhibit 10.1 to the annual report on Form
10-K for the year ended December 31, 2003), as further amended by First
Amendment to Credit Agreement dated as of March 16, 2005, filed
herewith.
10.2 Note Purchase Agreements (the "Note Purchase Agreements") dated as of
February 14, 1997 among the Company and, respectively, each of the
lenders (the "Noteholders") listed therein (incorporated by reference
to Exhibit 10.6 to the annual report on Form 10-K for the year ended
December 31, 1996), as amended by First Amendment to the Note Purchase
Agreements dated as of August 20, 1997 (incorporated by reference to
Exhibit 10(a) to the quarterly report on Form 10-Q for the quarter
ended September 30, 1997), as further amended by Second Amendment dated
as of March 30, 2000 to Note Purchase Agreements (incorporated by
reference to Exhibit 10.3 to the quarterly report on Form 10-Q for the
quarter ended March 31, 2000), as further amended by Third Amendment
dated as of February 28, 2003 to Note Purchase Agreements (incorporated
by reference to Exhibit 10.2 to the annual report on Form 10-K for the
year ended December 31, 2002), as further amended by Fourth Amendment
dated as of March 12, 2004 (incorporated by reference to Exhibit 10.2
to the annual report on Form 10-K for the year ended December 31,
2003), as further amended by Fifth Amendment dated as of March 16,
2005, filed herewith.
10.3 Note Purchase Agreement (the "Note Purchase Agreement") dated as of
April 24, 2003 among the Company and each of the lenders listed therein
(incorporated by reference to Exhibit 10.1 to the quarterly report on
Form 10-Q for the quarter ended March 31, 2003), as further amended by
First Amendment dated as of March 12, 2004 (incorporated by reference
to Exhibit 10.3 to the annual report on Form 10-K for the year ended
December 31, 2003), as further amended by Second Amendment dated as of
March 16, 2005, filed herewith.
10.4 Master Guaranty dated as of March 27, 2003 by the Company and those
subsidiaries of the Company named therein (incorporated by reference to
Exhibit 10.3 to the annual report on Form 10-K for the year ended
December 31, 2002).
<PAGE>
10.5 Amended and Restated Intercreditor Agreement dated as of April 24, 2003
among Bank of America, N.A. and the Noteholders (incorporated by
reference to Exhibit 10.2 to the quarterly report on Form 10-Q for the
quarter ended March 31, 2003).
10.6 Employment Letter dated March 7, 2003 between the Company and Thomas S.
Rooney, Jr. (incorporated by reference to Exhibit 10.3 to the quarterly
report on Form 10-Q for the quarter ended March 31, 2003), as amended
by Amendment dated March 1, 2004 (incorporated by reference to Exhibit
10.6 to the annual report on Form 10-K for the year ended December 31,
2003). (3)
10.7 Executive Separation Agreement and Release effective as of June 18,
2004 by and between the registrant and Thomas A. A. Cook (incorporated
by reference to Exhibit 10.1 to the quarterly report on Form 10-Q for
the quarter ended June 30, 2004). (3)
10.8 Employment Letter dated August 25, 2004 between the Company and Thomas
W. Vaughn (incorporated by reference to Exhibit 10.1 to the current
report on Form 8-K dated and filed September 3, 2004). (3)
10.9 Employment Letter dated December 23, 2004 between the Company and David
F. Morris, filed herewith. (3)
10.10 Executive Separation Agreement and Release effective as of July 22,
2003 by and between the registrant and Anthony W. Hooper (incorporated
by reference to Exhibit 10.1 to the quarterly report on Form 10-Q for
the quarter ended June 30, 2003). (3)
10.11 Employment Letter dated December 1, 2003 between the Company and
Christian G. Farman (incorporated by reference to Exhibit 10.1 to the
current report on Form 8-K dated and filed December 4, 2003). (3)
10.12 Employment Separation Agreement and Release effective as of December 4,
2003 by and between the Company and Joseph A. White (incorporated by
reference to Exhibit 10.13 to the annual report on Form 10-K for the
year ended December 31, 2003). (3)
10.13 Employee Separation Agreement and Release effective as of July 1, 2003
by and between the Company and Carroll W. Slusher (incorporated by
reference to Exhibit 10.2 to the quarterly report on Form 10-Q for the
quarter ended June 30, 2003). (3)
10.14 Employment Agreement dated October 25, 1995 between the Company and
Robert W. Affholder (incorporated by reference to Exhibit 2(d) to the
Current Report on Form 8-K dated October 25, 1995), as amended by
Amendment No. 1 dated as of October 25, 1998 to Employment Agreement
(incorporated by reference to Exhibit 10.9 to the annual report on Form
10-K for the year ended December 31, 1998), and as amended by Amendment
No. 2 dated as of December 31, 1999 to Employment Agreement, and as
amended by Amendment No. 3 dated as of December 31, 2000 to Employment
Agreement (incorporated by reference to Exhibit 10.1 to the quarterly
report on Form 10-Q for the quarter ended March 31, 2001), and as
amended by Amendment No. 4 dated as of December 31, 2001 to Employment
Agreement (incorporated by reference to Exhibit 10.6 to the annual
report on Form 10-K for the year ended December 31, 2001), and as
amended by Amendment No. 5 dated as of December 31, 2002 to Employment
Agreement (incorporated by reference to Exhibit 10.8 to the annual
report on Form 10-K for the year ended December 31, 2002), and as
amended by Letter Agreement dated March 1, 2004 (incorporated by
reference to Exhibit 10.15 to the annual report on Form 10-K for the
year ended December 31, 2003). (3)
<PAGE>
10.15 Equipment Lease for 125 Ton American Crane [1] dated as of January 1,
2005 between A-Y-K-E Partnership and Affholder, Inc., filed herewith.
10.16 Equipment Lease for 100 Ton Link Belt Crane dated as of January 1, 2005
between A-Y-K-E Partnership and Affholder, Inc., filed herewith.
10.17 Equipment Lease for 125 Ton American Crane [2] dated as of January 1,
2005 between A-Y-K-E Partnership and Affholder, Inc., filed herewith.
10.18 Equipment Lease for 110 Ton American Crane dated as of January 1, 2005
between A-Y-K-E Partnership and Affholder, Inc., filed herewith.
10.19 Equipment Lease for Lovat 121" Tunnel Boring Machine dated as of
January 1, 2005 between A-Y-K-E Partnership and Affholder, Inc., filed
herewith.
10.20 1992 Employee Stock Option Plan of the Company (incorporated by
reference to Exhibit 10.11 to the annual report on Form 10-K for the
year ended December 31, 1999). (3)
10.21 1992 Director Stock Option Plan of the Company (incorporated by
reference to Exhibit 10.12 to the annual report on Form 10-K for the
year ended December 31, 1999). (3)
10.22 Amended and Restated 2001 Employee Equity Incentive Plan (incorporated
by reference to Appendix C to the definitive proxy statement on
Schedule 14A filed on April 16, 2003 in connection with the 2003 annual
meeting of stockholders). (3)
10.23 Amended and Restated 2001 Non-Employee Director Equity Incentive Plan
(incorporated by reference to Appendix B to the definitive proxy
statement on Schedule 14A filed on April 16, 2003 in connection with
the 2003 annual meeting of stockholders). (3)
10.24 Long-Term Incentive Plan (incorporated by reference to Exhibit 10.3 to
the quarterly report on Form 10-Q for the quarter ended June 30, 2001).
(3)
10.25 Insituform Mid-America, Inc. Stock Option Plan, as amended
(incorporated by reference to Exhibit 4(i) to the Registration
Statement on Form S-8 No. 33-63953). (3)
10.26 Senior Management Voluntary Deferred Compensation Plan of the Company
(incorporated by reference to Exhibit 10.19 to the annual report on
Form 10-K for the year ended December 31, 1998), as amended by First
Amendment thereto dated as of October 25, 2000 (incorporated by
reference to Exhibit 10.15 to the annual report on Form 10-K for the
year ended December 31, 2000). (3)
10.27 Form of Directors' Indemnification Agreement (incorporated by reference
to Exhibit 10.3 to the quarterly report on Form 10-Q for the quarter
ended June 30, 2002). (3)
21 Subsidiaries of the Company, filed herewith.
23 Consent of PricewaterhouseCoopers LLP, filed herewith.
24 Power of Attorney (set forth on signature page).
<PAGE>
31.1 Certification of Thomas S. Rooney, Jr. pursuant to Section 302 of the
Sarbanes-Oxley Act of 2002, filed herewith.
31.2 Certification of Christian G. Farman pursuant to Section 302 of the
Sarbanes-Oxley Act of 2002, filed herewith.
32.1 Certification of Thomas S. Rooney, Jr. pursuant to 18 U.S.C. Section
1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of
2002, filed herewith.
32.2 Certification of Christian G. Farman pursuant to 18 U.S.C. Section
1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of
2002, filed herewith.
- --------------------------
(1) The Company's current, quarterly and annual reports are filed with the
Securities and Exchange Commission under file no. 0-10786.
(2) Pursuant to Reg. Section 229.601, does not include certain instruments
with respect to long-term debt of the Company and its consolidated
subsidiaries not exceeding 10% of the total assets of the Company and
its subsidiaries on a consolidated basis. The Company undertakes to
furnish to the Securities and Exchange Commission, upon request, a copy
of all long-term debt instruments not filed herewith.
(3) Management contract or compensatory plan or arrangement.
</TEXT>
</DOCUMENT>
<DOCUMENT>
<TYPE>EX-10.1
<SEQUENCE>2
<FILENAME>c93062exv10w1.txt
<DESCRIPTION>CREDIT AGREEMENT
<TEXT>
<PAGE>
EXHIBIT 10.1
FIRST AMENDMENT TO CREDIT AGREEMENT
This FIRST AMENDMENT TO CREDIT AGREEMENT (this "Amendment") is dated as of
March 16, 2005, between INSITUFORM TECHNOLOGIES, INC., a Delaware corporation
("Borrower"), and BANK OF AMERICA, N.A., a national banking association
("Lender").
WHEREAS, the Borrower and the Lender are parties to that certain Amended
and Restated Credit Agreement dated as of March 12, 2004 (the "Original Credit
Agreement")(the Original Credit Agreement, as amended by this Amendment is
referred to herein as the "Credit Agreement");
WHEREAS, the Borrower has requested that the Lender waive compliance with
certain provisions of the Original Credit Agreement, consent to certain
amendments to the Note Purchase Agreement-1997 and the Note Purchase
Agreement-2003, and consent to certain other transactions as more fully
described herein; and
WHEREAS, the Lender is willing to accede to such requests in reliance upon
and in accordance with the terms, conditions, representations and warranties set
forth in this Amendment.
NOW THEREFORE, in consideration of the mutual agreements herein and other
sufficient consideration, the receipt of which is hereby acknowledged, the
Borrower and the Lender hereby agree as follows:
1. DEFINITIONS. Unless otherwise specifically defined herein, each term
used herein which is defined in the Original Credit Agreement shall have the
meaning assigned to such term in the Original Credit Agreement. Each reference
to "hereof", "hereunder", "herein" and "hereby" and each other similar reference
and each reference to "this Agreement" and each other similar reference
contained in the Original Credit Agreement shall from the date hereof refer to
the Credit Agreement as amended hereby.
2. EFFECTIVENESS OF AGREEMENT. The effectiveness of this Amendment is
subject to the satisfaction and occurrence of the following conditions
precedent:
(a) The Lender shall have received the following documents in form
and substance satisfactory to the Lender:
(i) Executed counterparts of this Amendment;
(ii) Executed copies of a consent to this Amendment duly
executed by each Guarantor party to the Master Guaranty;
(iii) The Fifth Amendment dated as of the date hereof to the
Note Purchase Agreement-1997 (the "1997 NPA Amendment") and the Second
Amendment dated as of the date hereof to the Note Purchase Agreement-2003
(the "2003 NPA Amendment"), duly executed and delivered by the Borrower
and the requisite noteholders thereunder needed to approve such amendments
and such agreements shall be in form and substance satisfactory to the
Lender;
(iv) Copies of (a) the resolutions of the Borrower approving
and authorizing the 1997 NPA Amendment and the 2003 NPA Amendment,
certified by the Secretary or Assistant Secretary of the Borrower, and (b)
any other certificates, documents, consents or
<PAGE>
opinions delivered by any Borrower Party in connection with the 1997 NPA
Amendment and the 2003 NPA Amendment; and
(v) Such other assurances, certificates, documents, consents
or opinions as the Lender reasonably may require.
(b) The Lender shall have received payment from Borrower of the
amendment fee set forth in that certain fee letter dated as of the date hereof
among the Borrower and the Lender.
(c) The Borrower shall have paid the fees, costs and expenses of
Bryan Cave LLP, special counsel to the Lender, incurred in connection with the
consummation of the transactions contemplated by this Amendment.
3. AMENDMENTS TO CREDIT AGREEMENT. Subject to the terms and conditions
set forth in Section 2 hereof, the Credit Agreement is hereby amended as
follows:
(a) The defined term "Maturity Date" in Section 1.01 of the Credit
Agreement is amended by replacing the date "September 12, 2005" with
"March 31, 2006".
(b) The defined term "Note Purchase Agreement-1997" in Section
1.01 of the Credit Agreement is amended and restated in its entirety as
follows:
"Note Purchase Agreement-1997" means the Note Purchase Agreement
dated as of February 14, 1997, as amended to and including March 15,
2005, among Company and other parties signatory thereto under which
Company issued certain 7.88% Senior Notes, Series A, due February
14, 2007, of $110,000,000 aggregate principal amount; provided,
however, that, except with respect to Section 8.01(f) of this
Agreement (which is a cross default to other Indebtedness, including
the Note Purchase Agreement-1997 as in effect from time to time),
after March 15, 2005, no amendments to, or waivers of, the terms,
conditions and definitions of the Note Purchase Agreement-1997
referred to or incorporated by reference herein shall be deemed to
amend or waive such terms, conditions and definitions for purposes
of this Agreement unless Lender separately agrees or consents
thereto hereunder. The terms, conditions and definitions referred to
or incorporated by reference herein will survive termination,
restatement or cancellation of the Note Purchase Agreement-1997 for
purposes of this Agreement (other than Section 8.01(f)).
(c) The defined term "Note Purchase Agreement-2003" in Section
1.01 of the Credit Agreement is amended and restated in its entirety as
follows:
"Note Purchase Agreement-2003" means the Note Purchase Agreement
dated as of April 24, 2003, as amended to and including March 15,
2005, among Company and other parties signatory thereto under which
Company issued certain 5.29% Senior Notes, Series 2003-A, due April
24, 2013, of $65,000,000 aggregate principal amount; provided,
however, that, except with respect to Section 8.01(f) of this
Agreement (which is a cross default to other Indebtedness, including
the Note Purchase Agreement-2003 as in effect from time to time),
after March 15, 2005, no amendments to, or waivers of, the terms,
conditions and definitions of the Note Purchase Agreement-2003
referred to or incorporated by reference herein shall be deemed to
amend or waive such terms, conditions and
2
<PAGE>
definitions for purposes of this Agreement unless Lender separately
agrees or consents thereto hereunder. The terms, conditions and
definitions referred to or incorporated by reference herein will
survive termination, restatement or cancellation of the Note
Purchase Agreement-2003 for purposes of this Agreement (other than
Section 8.01(f)).
(d) Section 1.01 of the Credit Agreement is amended by adding the
following defined term:
"Unrestricted Cash Balance" means as of any date of determination
for the Borrower and its Subsidiaries on a consolidated basis, an
amount equal to the sum of cash and cash equivalents (excluding any
restricted cash balances or other retainage deposits), determined in
accordance with GAAP.
(e) Section 2.03(j) of the Credit Agreement is amended by
replacing the phrase "two and one-fourth percent (2.25%)" with the phrase
"two and one-half percent (2.50%)".
(f) Section 2.08(a) of the Credit Agreement is amended by
replacing the phrase "four-tenths of one percent (0.40%)" with the phrase
"one-half of one percent (0.50%)".
(g) Section 7 of the Credit Agreement is amended by adding the
following subsection at the end thereof:
"7.05 MINIMUM CASH BALANCE. Permit, at any time, the Unrestricted
Cash Balance to be less than $50,000,000 (or its equivalent in any
other currency or currencies)."
(h) Exhibit B to the Credit Agreement is replaced in its entirety
with Annex A attached hereto.
4. WAIVERS AND CONSENTS.
(a) Borrower has notified Lender that Borrower has violated
Section 10.2 (Fixed Charges Coverage Ratio) of the Note Purchase Agreement-1997
for the December 31, 2004 calculation date, which has given rise to an Event of
Default under Section 8.01(f) of the Credit Agreement (the "Covenant Default").
Borrower has requested that the Lender waive the Covenant Default, and the
Lender hereby waives the Covenant Default.
(b) Borrower has notified the Lender that Insituform Technologies
Limited, a foreign Subsidiary of the Borrower which is incorporated in England
and Wales ("ITL"), entered into a joint venture agreement with Environmental
Techniques Limited, a Northern Ireland company ("ETL") during calendar year
2004, pursuant to which ITL and ETL agreed to form Insituform Environmental
Techniques Limited, a Northern Ireland company ("IETL"), for the purpose of
promoting, marketing and distributing trenchless inspection, repair and
installation services in Northern Ireland and the Republic of Ireland. ITL has
entered into a subscription agreement for the purchase of 49.9% of the share
capital of IETL for (pound)499 (the "IETL Shares"). The Lender hereby waives
compliance with Section 7.01 of the Credit Agreement solely to the extent
necessary to waive any Default or Event of Default arising out of or relating to
the Borrower's subscription to purchase the IETL Shares, and the Lender hereby
consents to the purchase of
3
<PAGE>
the IETL Shares by the Borrower pursuant to the subscription agreement provided
that the consideration for such purchase shall not exceed (pound)499.
(c) Subject to the terms and conditions set forth herein, the
Lender hereby consents to the execution and delivery by the Borrower of the 1997
NPA Amendment and the 2003 NPA Amendment.
(d) The waivers and consents contained in this Section 4 are
specific in intent and are valid only for the specific purpose for which given.
Nothing contained herein obligates the Lender to agree to any additional waivers
of or consents to any provisions of any of the Loan Documents. The waivers
contained in this Section 4 are waivers of those items set forth in subsections
(a) and (b) of this Section 4 only and shall not operate as a waiver of Lender's
right to exercise remedies resulting from (i) existing and/or continuing
Defaults or Events of Default of which Lender is not actually aware, or (ii)
other future Defaults or Events of Default, whether or not of a similar nature
and whether or not known to Lender.
5. NOTICE ADDRESS. The notice address of the Lender for purposes of
Section 10.02 of the Credit Agreement shall be as follows:
Bank of America, N.A.
MO1-800-12-01
800 N. Market Street, 12th Floor
St. Louis, MO 63101
Attention: Jason R. Hickey
Senior Vice President
Telephone: (314) 466-6811
Facsimile: (314) 466-6499
Email: jason.hickey@bankofamerica.com
4
<PAGE>
With a copy to:
Harold R. Burroughs, Esq.
Bart D. Wall, Esq.
Bryan Cave LLP
One Metropolitan Square, Suite 3600
St. Louis, Missouri 63102-2750
Telephone: (314) 259-2000
Facsimile: (314) 259-2020
Email: hrburroughs@bryancave.com
bdwall@bryancave.com
6. REPRESENTATIONS AND WARRANTIES OF BORROWER. Borrower hereby
represents and warrants to the Lender that (i) the Borrower's execution of this
Amendment has been duly authorized by all requisite action of the Borrower; (ii)
no consents are necessary from any third parties for the Borrower's execution,
delivery or performance of this Amendment, (iii) each of this Amendment, the
Credit Agreement and any other Loan Documents to which a Borrower Party is a
party constitute the legal, valid and binding obligations of such Borrower
Party, enforceable against such Borrower Party in accordance with its terms,
except to the extent that the enforceability thereof against such Borrower Party
may be limited by bankruptcy, insolvency or other laws affecting the
enforceability of creditors rights generally or by equity principles of general
application, (iv) the representations and warranties of the Borrower contained
in Section 5 of the Credit Agreement are true and correct in all material
respects on and as of the date hereof as if such representations and warranties
had been made on and as of the date hereof, except to the extent such
representations and warranties expressly relate to an earlier date, and (v)
after giving effect to this Amendment, there is no Default or Event of Default
under the Credit Agreement.
7. GOVERNING LAW. This Amendment shall be governed by, and construed in
accordance with, the law of the State of Missouri applicable to agreements made
and to be performed entirely within such state; provided that Lender shall
retain all rights arising under Federal law.
8. SECTION TITLES. The section titles in this Amendment are for
convenience of reference only and shall not be construed so as to modify any
provisions of this Amendment.
9. COUNTERPARTS; FACSIMILE TRANSMISSIONS. This Amendment may be
executed in one or more counterparts and on separate counterparts, each of which
shall be deemed an original, but all of which together shall constitute one and
the same instrument. Signatures to this Amendment may be given by facsimile or
other electronic transmission, and such signatures shall be fully binding on the
party sending the same.
10. STATUTORY NOTICE - ORAL COMMITMENTS. Nothing contained in the
following notice shall be deemed to limit or modify the terms of the Loan
Documents:
ORAL AGREEMENTS OR COMMITMENTS TO LOAN MONEY, EXTEND CREDIT OR TO FORBEAR
FROM ENFORCING REPAYMENT OF A DEBT INCLUDING PROMISES TO EXTEND OR RENEW
SUCH DEBT ARE NOT ENFORCEABLE. TO PROTECT YOU (BORROWER) AND US (CREDITOR)
FROM MISUNDERSTANDING OR DISAPPOINTMENT, ANY AGREEMENTS WE REACH COVERING
SUCH MATTERS ARE CONTAINED IN THIS WRITING, WHICH IS THE COMPLETE AND
EXCLUSIVE STATEMENT OF THE AGREEMENT BETWEEN US, EXCEPT AS WE MAY LATER
AGREE IN WRITING TO MODIFY IT.
5
<PAGE>
11. POST-CLOSING ACTION. Notwithstanding anything to the contrary set
forth herein, the Borrower covenants and agrees to deliver to the Lender a copy
of the resolutions of the Board of Directors of Borrower, duly adopted, which
authorize and ratify the execution, delivery and performance of this Amendment
and the other documents executed pursuant to or in connection with this
Amendment, certified by the Secretary or Assistant Secretary of the Borrower.
Borrower agrees that the failure by Borrower to deliver such resolutions to
Lender on or before March 31, 2005 shall constitute an Event of Default under
the Credit Agreement and each of the other Loan Documents and the obligation of
the Lender to make additional Loans or issue Letters of Credit shall terminate
without any further action by the Lender.
[The remainder of this page is intentionally left blank.]
6
<PAGE>
IN WITNESS WHEREOF, this Amendment has been duly executed as of the date
first above written.
INSITUFORM TECHNOLOGIES, INC.
By: /s/ Christian G. Farman
--------------------------------------
Christian G. Farman
Senior Vice President, Chief Financial
Officer and Assistant Secretary
BANK OF AMERICA, N.A.
By: /s/ Jason R. Hickey
--------------------------------------
Jason R. Hickey
Senior Vice President
</TEXT>
</DOCUMENT>
<DOCUMENT>
<TYPE>EX-10.2
<SEQUENCE>3
<FILENAME>c93062exv10w2.txt
<DESCRIPTION>NOTE PURCHASE AGREEMENTS
<TEXT>
<PAGE>
EXHIBIT 10.2
Draft of March 15, 2005
================================================================================
INSITUFORM TECHNOLOGIES, INC.
-----------------------------------
FIFTH AMENDMENT AND WAIVER
TO
NOTE PURCHASE AGREEMENT
Dated as of March 16, 2005
-----------------------------------
Re: Note Purchase Agreement dated as of February 14, 1997
and
$110,000,000 Senior Notes, Series A,
Due February 14, 2007
================================================================================
<PAGE>
FIFTH AMENDMENT AND WAIVER
TO
NOTE PURCHASE AGREEMENT
THIS FIFTH AMENDMENT AND WAIVER TO NOTE PURCHASE AGREEMENT dated as of
March 16, 2005 (the or this "Fifth Amendment") is between INSITUFORM
TECHNOLOGIES, INC., a Delaware corporation (the "Company"), and each of the
institutions holding a Note (as hereinafter defined) and party hereto
(collectively, the "Noteholders").
RECITALS:
A. The Company entered into the Note Purchase Agreement dated as of
February 14, 1997 (as amended, supplemented or otherwise modified through the
date hereof, the "Note Agreement"), pursuant to which the Company issued its
7.88% Senior Notes, Series A, due February 14, 2007 in the original aggregate
principal amount of $110,000,000 (as amended, supplemented or otherwise modified
through the date hereof, the "Notes").
B. The Company and the Noteholders now desire to amend the Note Agreement
and the Notes in the respects, but only in the respects, hereinafter set forth
in order to reflect certain agreements between the Company and the Noteholders.
C. The Company has also advised the Noteholders that the Company has
violated certain terms and conditions set forth in the Note Agreement and more
particularly described herein and requests that the Noteholders waive such
Defaults and Events of Default.
D. Capitalized terms used herein shall have the respective meanings
ascribed thereto in the Note Agreement unless herein defined or the context
shall otherwise require.
E. All requirements of law have been fully complied with and all other
acts and things necessary to make this Fifth Amendment a valid, legal and
binding instrument according to its terms for the purposes herein expressed have
been done or performed.
NOW, THEREFORE, upon the full and complete satisfaction of the conditions
precedent to the effectiveness of this Fifth Amendment set forth in Section 4.1
hereof, and in consideration of good and valuable consideration the receipt and
sufficiency of which is hereby acknowledged, the Company and the Noteholders do
hereby agree as follows:
SECTION 1. WAIVER OF DEFAULTS.
Section 1.1. Waiver of Defaults (Fixed Charge Coverage Ratio). The Company
has notified the Noteholders that the Company has violated the minimum Fixed
Charge Coverage Ratio required to be maintained under Section 10.2 of the Note
Agreement for the fiscal quarter ended December 31, 2004. The Noteholders hereby
waive the Event of Default arising under the Note Agreement on account of the
Company's violation of the financial covenant described above for the fiscal
quarter ended December 31, 2004.
<PAGE>
Section 1.2. Waiver of Defaults and Consent (Acquisitions). The Company
has notified the Noteholders that Insituform Technologies Limited, a foreign
Subsidiary of the Company organized in England and Wales ("ITL"), entered into a
joint venture arrangement with Environmental Techniques Limited, a Northern
Ireland company ("ETL"), during the fiscal year ended 2004, pursuant to which
ITL and ETL formed a new company in Northern Ireland called Insituform
Environmental Techniques Limited ("IETL"), in connection with which ITL has
subscribed to purchase 499 shares of the authorized share capital (the
"Subscribed Joint Venture Shares") (comprised of a total of 1000 ordinary
shares) of IETL for an amount equal to (pound)499 (approximately equivalent to
U.S. $1,000). The Noteholders hereby waive compliance with Section 10.11 of the
Note Agreement to the extent necessary to waive any Event of Default arising
under the Note Agreement on account of the Subscribed Joint Venture Shares and
hereby consent to the purchase by ITL of the Subscribed Joint Venture Shares.
Section 1.3. Limited Waivers; Reservation of Rights. The Company
acknowledges and agrees that the waivers granted in this Section 1 are specific
in intent and are valid only for the specific purpose for which they are being
given, are waivers the events described in Sections 1.1 and 1.2 hereof only,
shall not in any way obligate the Noteholders to agree to any additional waivers
of the provisions of the Note Agreement, including but not limited to Section
10.2, Section 10.11, Section 11(c) and Section 11(d) and shall not in any way be
deemed to constitute or operate as a waiver of any Noteholder's right under the
Note Agreement to exercise remedies resulting from (i) existing and/or
continuing Defaults or Events of Default of which such Noteholder is not
actually aware or (ii) other future Defaults or Events of Default, whether or
not of a similar nature and whether or not known to any Noteholder.
SECTION 2. AMENDMENTS TO NOTE AGREEMENT AND THE NOTES.
Section 2.1. Amendment to Interest Rate on the Series A Notes. Upon the
Effective Date (as defined in Section 4.1 of this Fifth Amendment), the rate of
interest payable on each outstanding Note shall be changed from 8.63% per annum
to 8.88% per annum. As used in the Note Agreement and the Notes "Applicable
Rate" shall mean (i) 8.63% for the period commencing August 14, 2004 to but not
including the Effective Date and (ii) 8.88% from and after the Effective Date.
Section 2.2. Amendment to Section 8.5 (Maturity; Surrender; etc.). Section
8.5 of the Note Agreement shall be and is hereby amended by deleting the
reference to "Section 8" therein and substituting in lieu thereof a reference to
"Section 8 or Section 10.7(b)".
Section 2.3. Amendment to Section 9 (Additional Financial Covenants).
Section 9.9 of the Note Agreement shall be and is hereby amended in its entirety
to read as follows:
"Section 9.9. Additional Covenants. If the Bank Credit
Agreement is amended, replaced or renewed after the Effective Date
in a manner which makes the financial covenants set forth therein
more restrictive on the Company and its Subsidiaries than the
financial covenants contained in Section 10 of this Agreement or to
add additional financial covenants or to make the existing
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Bank Credit Agreement covenants more restrictive than the financial
covenants in the Bank Credit Agreement on the Effective Date, then
such more restrictive financial covenants and any related
definitions (the "Additional Financial Covenants") shall
automatically be deemed to be incorporated into SECTION 7.2(a) and
SECTION 10 of this Agreement by reference and SECTION 11(c) shall be
deemed to be amended to include such Additional Financial Covenants
from the time such Additional Financial Covenants become binding
upon the Company. No amendment or modification of the Additional
Financial Covenants shall result in any change in the covenants
expressly set forth in Section 10 which shall at all times remain in
effect. Promptly but in no event more than 5 Business Days following
the execution of any new Bank Credit Agreement, or any amendment to
the Bank Credit Agreement, the Company shall furnish each holder of
the Notes with a copy of such agreement. In no event shall the
Company or any Subsidiary provide any collateral or other security
to secure Indebtedness under the Bank Credit Agreement."
Section 2.4. Amendment to Section 10.1 (Consolidated Net Worth). Section
10.1 of the Note Agreement shall be and is hereby amended in its entirety to
read as follows:
"Section 10.1. Consolidated Net Worth. The Company will not,
at any time, permit Consolidated Net Worth to be less than the sum
of (i) $260,000,000 plus (ii) 50% of Consolidated Net Income (if
positive) on a cumulative basis for each fiscal quarter ending after
December 31, 2004."
Section 2.5. Amendment to Section 10.2 (Fixed Charge Coverage Ratio).
Section 10.2 of the Note Agreement shall be and is hereby amended in its
entirety to read as follows:
"Section 10.2. Fixed Charge Coverage Ratio. The Company will
not at any time permit the Fixed Charge Coverage Ratio to be less
than 1.25 to 1.0 for the fiscal quarters ending March 31, 2005 and
June 30, 2005, 1.50 to 1.0 for the fiscal quarter ending September
30, 2005, 1.75 to 1.0 for the fiscal quarter ending December 31,
2005, 2.0 to 1.0 for each of the fiscal quarters ending March 31,
2006 and June 30, 2006, 2.25 to 1.0 for each of the fiscal quarters
ending September 30, 2006 and December 31, 2006, and 2.5 to 1.0 for
each fiscal quarter ending thereafter."
Section 2.6. Amendment to Section 10.3. (Limitation on Consolidated
Indebtedness). Section 10.3 of the Note Agreement shall be and is hereby amended
in its entirety to read as follows:
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"Section 10.3. Limitation on Consolidated Indebtedness. The
Company will not at any time permit (i) the Consolidated Leverage
Ratio to exceed 4.25 to 1.0 for the fiscal quarter ending March 31,
2005, 4.0 for the fiscal quarters ending June 30, 2005 and September
30, 2005, and 3.0 to 1.0 for each fiscal quarter ending thereafter;
and (ii) the ratio of Consolidated Total Indebtedness to
Consolidated Total Capitalization to exceed 0.45 to 1.0; provided
that in connection with any calculation of Indebtedness for purposes
of determining compliance with this SECTION 10.3, there shall be
excluded all Indebtedness of the Company and its Subsidiaries
outstanding under any revolving credit agreement between the Company
and a committed bank or banks if, during the 365-day period
immediately preceding the date of any such calculation of
Indebtedness, there shall have been a period of at least 60
consecutive days on each day of which Indebtedness of the Company
and its Subsidiaries outstanding under such revolving credit
agreement is equal to zero by virtue, and solely by virtue, of such
Indebtedness having been paid from general corporate funds of the
Company and not from funds borrowed by the Company or any Subsidiary
pursuant to any other revolving credit agreement for the purpose of
paying such Indebtedness. If there shall not have been such 60
consecutive day period on each day of which such Indebtedness was
equal to zero, then and in such event there shall be included in
such calculation of Indebtedness for purposes of this SECTION 10.3
an amount equal to the average aggregate amount of all Indebtedness
outstanding under such revolving credit agreement during such
preceding 365-day period."
Section 2.7. Amendment to Section 10.4 (Priority Debt). Section 10.4 of
the Note Agreement shall be and is hereby amended in its entirety to read as
follows:
"Section 10.4. Priority Debt. The Company will not, and will
not permit any Subsidiary to, create, issue, assume, guarantee or
otherwise incur or in any manner become liable in respect of any
Priority Debt unless at the time of creation, issuance, assumption,
guarantee or incurrence thereof and after giving effect thereto and
to the application of the proceeds thereof: (a) no Specified Default
or Event of Default would exist and (b) the aggregate amount of all
Priority Debt would not exceed $7,500,000 at any time. In addition
from and after the Effective Date, no Priority Debt shall be
incurred except by foreign Subsidiaries of the Company under
agreements for which the Company shall have no liability except
pursuant to an unsecured Guaranty of such Subsidiary obligation.
Any Person which becomes a Subsidiary after the date of this
Agreement, shall, for all purposes of this SECTION 10.4, be deemed
to have created, issued, assumed, guaranteed or incurred,
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at the time it becomes a Subsidiary, all Priority Debt of such
Person existing immediately after it becomes a Subsidiary."
Section 2.8. Amendment to Section 10.6 (Restricted Payments). Section 10.6
of the Note Agreement shall be and is hereby amended in its entirety to read as
follows:
"Section 10.6. Restricted Payments. The Company will not:
(1) declare or pay any dividends, either in cash or property,
on any shares of its capital stock of any class (except dividends or
other distributions payable solely in shares of common stock of the
Company),
(2) directly or indirectly, or through any Subsidiary or
through any Affiliate of the Company, purchase, redeem or retire any
shares of its capital stock of any class or any warrants, rights or
options to purchase or acquire any shares of its capital stock
(other than in exchange for or out of the net cash proceeds to the
Company from the substantially concurrent issue or sale of shares of
common stock of the Company or warrants, rights or options to
purchase or acquire any shares of its common stock), or
(3) make any other payment or distribution, either directly or
indirectly or through any Subsidiary, in respect of its capital
stock."
Section 2.9. Amendment to Section 10.7 (Mergers, Consolidations and Sales
of Assets).
(a) Section 10.7(b)(iii)(1) of the Note Agreement shall be and is hereby
amended by deleting the reference to the phrase "25% of Consolidated Total
Assets, determined as set forth in the Company's most recently filed Form 10-K"
therein and substituting in lieu thereof a reference to "$20,000,000".
(b) Section 10.7(b)(y)(C) of the Note Agreement shall be and is hereby
amended in its entirety to read as follows:
"(C) to prepay or retire Senior Indebtedness of the Company
and/or its Subsidiaries; provided that the Company (i) shall offer
to prepay each outstanding Note in a principal amount which equals
the Ratable Portion for such Note, and (ii) any such prepayment of
the Notes shall be made at par, together with accrued interest and
the applicable Make-Whole Amount or other premium to the date of
such prepayment, and".
(c) The last paragraph of Section 10.7 of the Note Agreement shall be and
is hereby amended by the addition thereto of a new sentence at the end thereof
to read as follows:
"If any holder of Senior Indebtedness elects not to accept such
offer of prepayment, then, only for purposes of such application of
an amount equal to such Net Proceeds for the prepayment of
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Senior Indebtedness, the Company nevertheless will be deemed on such
particular occasion to have paid Senior Indebtedness in an amount
equal to the Ratable Portion of such Senior Indebtedness."
Section 2.9. Amendment to Section 10.9 (Prepayment and Purchase of Notes).
Section 10.10 of the Note Agreement shall be and is hereby amended in its
entirety to read as follows:
"Section 10.9. Prepayment and Purchase of Notes. Except as
provided in SECTION 8.1 of this Agreement, so long as any 2003 Note
shall be outstanding, the Company will not make any optional
prepayment of the Notes pursuant to SECTION 8.2 or otherwise prepay
or purchase any Notes from any holder unless concurrently therewith,
the Company shall prepay or purchase, as the case may be, a pro rata
principal amount of the 2003 Notes."
Section 2.10. Amendment to Section 10.10 (Capital Expenditures and
Acquisitions). Section 10.10 of the Note Agreement shall be and is hereby
amended in its entirety to read as follows:
"Section 10.10. Capital Expenditures and Acquisitions. The
Company will not, and will not permit any Subsidiary to, make any
(a) Capital Expenditures or (b) acquisitions of stock or other
equity interests in any Person, or all or substantially all of the
assets of any Person if the aggregate amount of all such Capital
Expenditures and acquisitions made by the Company and its
Subsidiaries would exceed (i) $40,000,000 during the fiscal year
ending December 31, 2005 and (ii) $40,000,000 during the fiscal year
ending December 31, 2006; provided that any calculation of Capital
Expenditures during such periods shall be done net of proceeds
realized by the Company from the routine sale of fixed assets in the
ordinary course of business during such period so long as such sale
of fixed assets comply with the requirements of SECTION 10.7(b)
hereof and the proceeds therefrom are applied in the manner
described in SECTION 10.7(b)(y)(A) and (B)."
Section 2.11. Amendment to Section 10.11 (Deletion of Acquisition; New
Covenant). Section 10.11 of the Note Agreement shall be and is hereby amended in
its entirety to read as follows:
"Section 10.11. Bank Credit Agreement.
(a) The Company shall at all times maintain a Bank Credit
Agreement which provides for commitments in favor of the Company of
not less than $25,000,000.
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<PAGE>
(b) So long as the Company is required to maintain an
Unrestricted Cash Balance under the Bank Credit Agreement, initially
$50,000,000 or its equivalent in any other currency, the Company
will not permit such Unrestricted Cash Balance to be less than the
amount from time to time required under the Bank Credit Agreement."
Section 2.12. Amendment to Section 11 (Events of Default). Section 11(c)
of the Note Agreement shall be and is hereby amended in its entirety to read as
follows:
"(c) the Company defaults in the performance of or compliance
with the terms of SECTION 7.1(d), SECTION 9.8 or any term contained
in SECTION 10; or".
Section 2.13. Amendment to Section 11 (Events of Default). Section 11(f)
of the Note Agreement shall be and is hereby amended by deleting the reference
to "from and after the Effective Date to and including the Transition Date," in
clause (ii) thereof.
Section 2.14. Amendment to Schedule B (Definitions - Amended Terms). The
definitions of "Applicable Rate", "Capital Expenditures", "Default Rate",
"Effective Date" and "Interest Expense" shall be and are hereby amended in their
entirety to read as follows:
"`Applicable Rate' has the meaning set forth in Section 2.1 of
the Fifth Amendment."
"`Capital Expenditure' means an expenditure for an asset that
must be depreciated or amortized under GAAP, for goodwill, or for
any asset that under GAAP must be treated as a capital asset,
including payments under Capital Leases. An expenditure for purposes
of this definition includes any deferred or seller financed portion
of the purchase price of an asset and the original capitalized
amount of a Capital Lease. Capital Expenditures shall exclude
expenditures by the Company and its Subsidiaries for equipment
related to its tunnel business which is acquired by the Company or
any Subsidiary in connection with the performance of any
construction contract but only to the extent to which the Company
has received payments under the contract sufficient to cover the
cost of the equipment."
"Default Rate' means that rate of interest that is the greater
of (i) 10.88% per annum or (ii) 2% over the rate of interest
publicly announced by JP Morgan Chase Bank in New York, New York as
its base or "prime" rate."
"Effective Date' has the meaning set forth in Section 4.1 of
the Fifth Amendment."
"`Effective Date' has the meaning set forth in Section 4.1 of
the Fifth Amendment."
"`Interest Expense' means, with respect to any period, the sum
(without duplication) of the following (in each case, after
eliminating all offsetting debits and credits between the Company
and its Subsidiaries and all other items required to be eliminated
in
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the course of the preparation of the consolidated financial
statements of the Company and its Subsidiaries in accordance with
GAAP): (a) all interest in respect of Indebtedness of the Company
and its Subsidiaries (including imputed interest on Capitalized
Rentals) deducted in determining Consolidated Net Income for such
period, and (b) all debt discount and expense amortized or required
to be amortized in the determination of Consolidated Net Income for
such period."
Section 2.14. Amendment to Schedule B (Definitions - New Terms). Schedule
B of the Note Agreement shall be and is hereby amended by the addition thereto
of the following new definitions which shall appear in alphabetical order
therein and which shall read as follows:
"`Bank Credit Agreement' shall mean the Amended and Restated
Credit Agreement dated as of March 12, 2004 between the Company and
Bank of America, N.A., as such agreement may be amended, restated,
joined, supplemented, renewed, replaced, refunded or refinanced from
time to time and any successor bank credit facility which
constitutes the primary bank credit facility of the Company."
"`Consolidated Income Available for Fixed Charges' shall mean,
with respect to any period, the sum of (i) EBITDA for such period
and (ii) Rentals for such period."
"`Consolidated Leverage Ratio' shall mean, on any date, the
ratio of Consolidated Total Indebtedness at such date to EBITDA for
the period of the four consecutive fiscal quarters most recently
ended as of such date. For purposes of calculating EBITDA for any
period of four consecutive fiscal quarters, if during such period
the Company or any Subsidiary shall have acquired any Person which
becomes a Subsidiary or acquired all or substantially all of the
operating assets of any Person or disposed of any Subsidiary or all
or substantially all of the operating assets of any Subsidiary or
disposed of any segment of the business of the Company or a
Subsidiary, EBITDA for such period shall be calculated after giving
pro forma effect thereto as if such acquisition or disposition
occurred on the first day of such period of four consecutive fiscal
quarters."
"`Consolidated Net Income' shall mean, for any period, the net
income (or loss), before any extraordinary items, of the Company and
its Subsidiaries for such period (taken as a cumulative whole), as
calculated in accordance with GAAP."
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<PAGE>
"`Consolidated Net Worth' shall mean, as of any date of
determination thereof, the consolidated stockholder's equity of the
Company and its Subsidiaries, as determined in accordance with
GAAP."
"`EBITDA' shall mean, with respect to any period, the total of
the following calculated without duplication for the Company and its
Subsidiaries on a consolidated basis for such period: (a)
Consolidated Net Income for such period; plus (b) taxes deducted in
determining Consolidated Net Income for such period; plus (c)
Interest Expense deducted in determining Consolidated Net Income for
such period; plus (d) amortization and depreciation expense deducted
in determining Consolidated Net Income for such period."
"`Fair Market Value' means, at any time and with respect to
any property, the sale value of such property that would be realized
in an arm's-length sale at such time between an informed and willing
buyer and an informed and willing seller (neither being under a
compulsion to buy or sell), as reasonably determined in the good
faith opinion of the Company's board of directors."
"`Fifth Amendment' means the Fifth Amendment and waive to Note
Purchase Agreement dated as of March 16, 2005 between the Company
and the holders of Notes, in respect of this Agreement."
"`Fixed Charge Coverage Ratio' means, on any date, the ratio
of (a) Consolidated Income Available for Fixed Charges for the
period of four consecutive fiscal quarters ending on, or most
recently ended prior to, such date to (b) Consolidated Fixed Charges
for such period."
"`Net Proceeds' means with respect to any sale of property by
any Person an amount equal to (a) the aggregate amount of the
consideration received by such Person in respect of such sale
(valued at the Fair Market Value of such consideration at the time
of such sale), minus (b) the sum of (i) all out-of-pocket costs and
expenses actually incurred by such Person in connection with such
sale, and (ii) all state, federal and foreign taxes incurred, or to
be incurred, by the seller in connection with such sale."
"`Ratable Portion' means, with respect to any Note, an amount
equal to the product of (x) the amount equal to the Net Proceeds
being so applied to the prepayment of Senior Indebtedness multiplied
by (y) a fraction the numerator of which is the outstanding
principal amount of such Note and the
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denominator of which is the aggregate principal amount of Senior
Indebtedness of the Company and its Subsidiaries."
"`Unrestricted Cash Balance' means as of any date of
determination for the Company and its Subsidiaries on a consolidated
basis, an amount equal to the sum of cash and cash equivalents
(excluding any restricted cash balances or other retainage
deposits), determined in accordance with GAAP."
Section 2.15. Amendment to Schedule B (Definitions - Deletions). The
definition of "Consolidated Cash Flow Available for Fixed Charges" shall be and
is hereby deleted from Schedule B to the Note Agreement.
SECTION 3. REPRESENTATIONS AND WARRANTIES OF THE COMPANY.
Section 3.1. To induce the Noteholders to execute and deliver this Fifth
Amendment, the Company represents and warrants (which representations shall
survive the execution and delivery of this Fifth Amendment) to the Noteholders
that:
(a) this Fifth Amendment has been duly authorized, executed
and delivered by it and this Fifth Amendment constitutes the legal,
valid and binding obligation, contract and agreement of the Company
enforceable against it in accordance with its terms, except as
enforcement may be limited by bankruptcy, insolvency,
reorganization, moratorium or similar laws or equitable principles
relating to or limiting creditors' rights generally;
(b) the Note Agreement and the Notes, as amended by this Fifth
Amendment, constitute the legal, valid and binding obligations,
contracts and agreements of the Company enforceable against it in
accordance with their terms, except as enforcement may be limited by
bankruptcy, insolvency, reorganization, moratorium or similar laws
or equitable principles relating to or limiting creditors' rights
generally;
(c) the execution, delivery and performance by the Company of
this Fifth Amendment (i) has been duly authorized by all requisite
corporate action and, if required, shareholder action, (ii) does not
require the consent or approval of any governmental or regulatory
body or agency, and (iii) will not (A) violate (1) any provision of
law, statute, rule or regulation or its certificate of incorporation
or bylaws, (2) any order of any court or any rule, regulation or
order of any other agency or government binding upon it, or (3) any
provision of any material indenture, agreement or other instrument
to which it is a party or by which its properties or assets are or
may be bound, or (B) result in a breach or constitute (alone or with
due notice or lapse of time or both) a default under any indenture,
agreement or other instrument referred to in clause (iii)(A)(3) of
this Section 3.1(c), other than any violation, breach or default
which individually or in the aggregate could not reasonably be
expected to have a Material Adverse Effect;
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(d) as of the date hereof and after giving effect to this
Fifth Amendment, no Default or Event of Default has occurred which
is continuing;
(e) the unaudited financial statements of the Company for the
fiscal year ended December 31, 2004 furnished to you do not, nor
does any written statement furnished by the Company to you in
connection with the execution and delivery of this Fifth Amendment,
contain any untrue statement of a material fact or omit to state any
material fact necessary to make the statements contained therein not
misleading in light of the circumstances under which they were made.
There is no fact known to the Company which the Company has not
disclosed to you in writing which could reasonably be expected to
have a Material Adverse Effect; and
(f) The Company has not paid any consideration to any holder
of indebtedness of the Company in connection with the transactions
contemplated by this Fifth Amendment, except for the legal fees of
counsel to the holders of such indebtedness and consideration paid
to the holders of the 2003 Notes which is identical to the
consideration to be paid to the holders of the Notes and
consideration paid to Bank of America, N.A. pursuant to and as set
forth in the First Amendment to Credit Agreement dated as of March
16, 2005 (the "Bank Credit Agreement Amendment") between the Company
and Bank of America, N.A. (in respect of the Amended and Restated
Credit Agreement dated as of March 12, 2004 (the "Bank Credit
Agreement") between the Company and Bank of America, N.A.).
SECTION 4. CONDITIONS TO EFFECTIVENESS OF THIS FIFTH AMENDMENT.
Section 4.1. This Fifth Amendment shall become effective when each of the
following conditions has been satisfied:
(a) executed counterparts of this Fifth Amendment, duly
executed by the Company and the holders of at least 66-2/3% of the
outstanding principal of the Notes, shall have been delivered to the
Noteholders;
(b) executed copies of a consent to this Agreement shall have
been duly executed by the Subsidiaries which are parties to the
Subsidiary Guaranties;
(c) the representations and warranties of the Company set
forth in Section 3 hereof shall be true and correct on and with
respect to the date hereof and a certificate of a Responsible
Officer certifying the same shall have been delivered to the
Noteholders;
(d) the Second Amendment to Note Purchase Agreement dated as
of March 16, 2005, in respect of the 2003 Notes, shall have been
duly executed and delivered by the requisite percentage of the
noteholders thereunder needed to approve such amendment and such
agreement shall be in form and substance satisfactory to each
Noteholder;
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<PAGE>
(e) the Company shall have paid a fee to each Noteholder in an
amount equal to .25% of the outstanding principal amount of the
Notes held by such Noteholder;
(f) Thompson Coburn LLP, counsel for the Company, shall have
delivered a legal opinion, dated as of the effective date of this
Fifth Amendment, in form and substance reasonably satisfactory to
the Noteholders and their special counsel to the effect that this
Fifth Amendment constitutes the legal, valid and binding obligation
of the Company;
(g) the Bank Credit Agreement Amendment shall have been duly
executed and delivered by the parties thereto and such agreement
shall be in form and substance satisfactory to each Noteholder
executing this Fifth Amendment; and
(h) the Company shall have paid the fees, costs, expenses and
disbursements of Chapman and Cutler LLP, special counsel to the
Noteholders, incurred in connection with the consummation of the
transactions contemplated by this Fifth Amendment.
Upon receipt of all of the foregoing, this Fifth Amendment shall become
effective. Delivery of this Fifth Amendment to the Company, duly executed by the
holders of at least 66-2/3% of the outstanding principal amount of the Notes,
shall acknowledge satisfaction of the foregoing conditions. The date upon which
this Fifth Amendment becomes effective is herein referred to as the "Effective
Date." The Company shall give written notice to the Noteholders of the Effective
Date, confirming the date upon which the increased interest rate referred to in
Section 2.1 hereof shall begin to accrue.
SECTION 5. MISCELLANEOUS.
Section 5.1. Automatically, and without any further action on the part of
the Company or any holder of a Note, on the Effective Date, the Notes shall be
deemed to be amended to reflect the change in interest rate set forth in Section
2.1 of this Fifth Amendment; provided, however, that if any holder of a Note
elects to surrender its Note (an "Existing Note") to the Company for
cancellation and the issuance of a new note reflecting such change in interest
rate (a "New Note"), the Company shall issue a New Note to such holder within 5
business days of receipt of the Existing Note surrendered therefor, such New
Note to be dated the date to which interest has been paid on the Existing Note
surrendered therefor and such New Note shall be payable on the same dates as set
forth in the Existing Note surrendered therefor.
Section 5.2. Release of Claims. In further consideration of each
Noteholder's execution of this Fifth Amendment, the Company hereby releases each
Noteholder and its respective affiliates, officers, employees, directors,
trustees, agents and attorneys (collectively, the "Releasees") from any and all
claims, demands, liabilities, responsibilities, disputes, causes of action
(whether at law or in equity) and obligations of every nature whatsoever,
whether liquidated or unliquidated, known or unknown, matured or unmatured,
fixed or contingent, that the Company may have against the Releasees which arise
from or relate to any actions which the Releasees may have taken or omitted to
take prior to the date thereof with respect to the Notes, the Note Agreement or
any Subsidiary Guaranty. For purposes of the release contained in this
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section, the term "Company" shall mean and include such party's successors and
assigns, including, without limitation, any trustees acting on behalf of such
party and any debtor-in-possession in respect of such party.
Section 5.3. The Company acknowledges and agrees that by agreeing to the
amendments of the Note Agreement set forth herein, the Noteholders shall not be
deemed to have waived any rights as on account of any Default or Event of
Default which may at any time hereafter exist under the Note Agreement, which
rights are hereby expressly reserved by the holders of the Notes.
Section 5.4. This Fifth Amendment shall be construed in connection with
and as part of the Note Agreement, and except as modified and expressly amended
by this Fifth Amendment, all terms, conditions and covenants contained in the
Note Agreement and the Notes are hereby ratified and shall be and remain in full
force and effect.
Section 5.5. Any and all notices, requests, certificates and other
instruments executed and delivered after the execution and delivery of this
Fifth Amendment may refer to the Note Agreement without making specific
reference to this Fifth Amendment but nevertheless all such references shall
include this Fifth Amendment unless the context otherwise requires.
Section 5.6. The descriptive headings of the various Sections or parts of
this Fifth Amendment are for convenience only and shall not affect the meaning
or construction of any of the provisions hereof.
Section 5.7. This Fifth Amendment shall be governed by and construed in
accordance with Illinois law.
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The execution hereof by you shall constitute a contract between us for the
uses and purposes hereinabove set forth, and this Fifth Amendment may be
executed in any number of counterparts, each executed counterpart constituting
an original, but all together only one agreement.
INSITUFORM TECHNOLOGIES, INC.
By /s/ Christian G. Farman
Name: Christian G. Farman
Title: Senior Vice President and CFO
<PAGE>
Accepted and agreed to as of the date first written above:
THE NORTHWESTERN MUTUAL LIFE INSURANCE
COMPANY
By /s/ David A. Barras
Name: David A. Barras
Title: Authorized Representative
<PAGE>
Accepted and agreed to as of the date first written above:
PRINCIPAL LIFE INSURANCE COMPANY
By: Principal Global Investors, LLC, a
Delaware limited liability company,
its Authorized Signatory
By /s/ Jon C. Heing
----------------------------------
Name: Jon C. Heing
-----------------------------
Title: Counsel
---------------------------
By /s/ Stephen G. Skrivanek
----------------------------------
Name: Stephen G. Skrivanek
-----------------------------
Title: Counsel
---------------------------
<PAGE>
Accepted and agreed to as of the date first written above:
ALLSTATE LIFE INSURANCE COMPANY
By _______________________________________
By _______________________________________
Authorized Signatories
<PAGE>
Accepted and agreed to as of the date first written above:
CONNECTICUT GENERAL LIFE INSURANCE COMPANY
By: CIGNA Investments, Inc. (authorized
agent)
By /s/ Stephen A. Osborn
Name: Stephen A. Osborn
Title: Managing Director
LIFE INSURANCE COMPANY OF NORTH AMERICA
By: CIGNA Investments, Inc. (authorized
agent)
By /s/ Stephen A. Osborn
Name: Stephen A. Osborn
Title: Managing Director
CONNECTICUT GENERAL LIFE INSURANCE
COMPANY, on behalf of one or more
separate accounts
By: CIGNA Investments, Inc. (authorized
agent)
By /s/ Stephen A. Osborn
Name: Stephen A. Osborn
Title: Managing Director
<PAGE>
Accepted and agreed to as of the date first written above:
JEFFERSON-PILOT LIFE INSURANCE COMPANY
By _______________________________________
Its____________________________________
JEFFERSON PILOT FINANCIAL INSURANCE
COMPANY
By
Its____________________________________
<PAGE>
Accepted and agreed to as of the date first written above:
RELIASTAR LIFE INSURANCE COMPANY
RELIASTAR LIFE INSURANCE COMPANY
OF NEW YORK
By: ING Investment Management LLC,
as Agent
By /s/ James Wittich
Name: James Wittich
Title: Senior Vice President
<PAGE>
Accepted and agreed to as of the date first written above:
ACE PROPERTY & CASUALTY INSURANCE COMPANY
By: Columbia Management Advisors
Incorporated, as agent
By /s/ Richard A. Hegwood
Name: Richard A. Hegwood
Title: Senior Vice President
<PAGE>
Accepted and agreed to as of the date first written above:
THE SECURITY FINANCIAL LIFE INSURANCE CO.
By /s/ David T. Wallman
Name: David T. Wallman
Title: Senior Vice President & Chief
Actuary
</TEXT>
</DOCUMENT>
<DOCUMENT>
<TYPE>EX-10.3
<SEQUENCE>4
<FILENAME>c93062exv10w3.txt
<DESCRIPTION>NOTE PURCHASE AGREEMENT
<TEXT>
<PAGE>
EXHIBIT 10.3
Draft of March 15, 2005
================================================================================
INSITUFORM TECHNOLOGIES, INC.
-----------------------------------
SECOND AMENDMENT AND WAIVER
TO
NOTE PURCHASE AGREEMENT
Dated as of March 16, 2005
-----------------------------------
Re: Note Purchase Agreement dated as of April 24, 2003
and
$65,000,000 Senior Notes, Series 2003-A,
Due April 24, 2013
================================================================================
<PAGE>
SECOND AMENDMENT AND WAIVER
TO
NOTE PURCHASE AGREEMENT
THIS SECOND AMENDMENT AND WAIVER TO NOTE PURCHASE AGREEMENT dated as of
March 16, 2005 (the or this "Second Amendment") is between INSITUFORM
TECHNOLOGIES, INC., a Delaware corporation (the "Company"), and each of the
institutions holding a Note (as hereinafter defined) and party hereto
(collectively, the "Noteholders").
RECITALS:
A. The Company entered into the Note Purchase Agreement dated as of April
24, 2003 (as amended, supplemented or otherwise modified through the date
hereof, the "Note Agreement"), pursuant to which the Company issued its 5.29%
Senior Notes, Series 2003-A, due April 24, 2013 in the original aggregate
principal amount of $65,000,000 (as amended, supplemented or otherwise modified
through the date hereof, the "Notes").
B. The Company and the Noteholders now desire to amend the Note Agreement
and the Notes in the respects, but only in the respects, hereinafter set forth
in order to reflect certain agreements between the Company and the Noteholders.
C. The Company has also advised the Noteholders that the Company has
violated certain terms and conditions set forth in the Note Agreement and more
particularly described herein and requests that the Noteholders waive such
Defaults and Events of Default.
D. Capitalized terms used herein shall have the respective meanings
ascribed thereto in the Note Agreement unless herein defined or the context
shall otherwise require.
E. All requirements of law have been fully complied with and all other
acts and things necessary to make this Second Amendment a valid, legal and
binding instrument according to its terms for the purposes herein expressed have
been done or performed.
NOW, THEREFORE, upon the full and complete satisfaction of the conditions
precedent to the effectiveness of this Second Amendment set forth in Section 4.1
hereof, and in consideration of good and valuable consideration the receipt and
sufficiency of which is hereby acknowledged, the Company and the Noteholders do
hereby agree as follows:
SECTION 1. WAIVER OF DEFAULTS.
Section 1.1. Waiver of Defaults (Cross-Default). The Company has notified
the Noteholders that the Company has violated the minimum Fixed Charges Coverage
Ratio required to be maintained under Section 10.2 of the note purchase
agreement, under and pursuant to which the 1997 Notes (the "1997 Note
Agreement") were issued, for the fiscal quarter ended December 31, 2004. The
Noteholders hereby waive the Event of Default arising under the Note
<PAGE>
Agreement on account of the Company's violation of the financial covenant
described above in the 1997 Note Agreement for the fiscal quarter ended December
31, 2004.
Section 1.2. Waiver of Defaults and Consent (Acquisitions). The Company
has notified the Noteholders that Insituform Technologies Limited, a foreign
Subsidiary of the Company organized in England and Wales ("ITL"), entered into a
joint venture arrangement with Environmental Techniques Limited, a Northern
Ireland company ("ETL"), during the fiscal year ended 2004, pursuant to which
ITL and ETL formed a new company in Northern Ireland called Insituform
Environmental Techniques Limited ("IETL"), in connection with which ITL has
subscribed to purchase 499 shares of the authorized share capital (the
"Subscribed Joint Venture Shares") (comprised of a total of 1000 ordinary
shares) of IETL for an amount equal to (pound)499 (approximately equivalent to
U.S. $1,000). The Noteholders hereby waive compliance with Section 10.12 of the
Note Agreement to the extent necessary to waive any Event of Default arising
under the Note Agreement on account of the Subscribed Joint Venture Shares and
hereby consent to the purchase by ITL of the Subscribed Joint Venture Shares.
Section 1.3. Limited Waivers; Reservation of Rights. The Company
acknowledges and agrees that the waivers granted in this Section 1 are specific
in intent and are valid only for the specific purpose for which they are being
given, are waivers of the events described in Sections 1.1 and 1.2 hereof only,
shall not in any way obligate the Noteholders to agree to any additional waivers
of the provisions of the Note Agreement, including but not limited to Section
10.12, Section 11(c) and Section 11(g), and shall not in any way be deemed to
constitute or operate as a waiver of any Noteholder's right under the Note
Agreement to exercise remedies resulting from (i) existing and/or continuing
Defaults or Events of Default of which such Noteholder is not actually aware or
(ii) other future Defaults or Events of Default, whether or not of a similar
nature and whether or not known to any Noteholder.
SECTION 2. AMENDMENTS TO NOTE AGREEMENT AND THE NOTES.
Section 2.1. Amendment to Interest Rate on the Series 2003-A Notes. Upon
the Effective Date (as defined in Section 4.1 of this Second Amendment), the
rate of interest payable on each outstanding Series 2003-A Note shall be changed
from 6.04% per annum to 6.54% per annum. As used in the Note Agreement and the
Notes "Applicable Rate" shall mean (i) 6.04% for the period commencing October
24, 2004 to but not including the Effective Date and (ii) 6.54% from and after
the Effective Date.
Section 2.2. Amendment to Section 8.4 (Maturity; Surrender; Etc.). Section
8.4 of the Note Agreement shall be and is hereby amended by deleting the
reference to "Section 8" therein and substituting in lieu thereof a reference to
"Section 8 or Section 10.5".
Section 2.3. Amendment to Section 9 (Additional Financial Covenants).
Section 9.8 of the Note Agreement shall be and is hereby amended in its entirety
to read as follows:
"Section 9.8. Additional Covenants. If the Bank Credit
Agreement is amended, replaced or renewed after the Effective Date
in a manner which makes the financial covenants set forth
-2-
<PAGE>
therein more restrictive on the Company and its Subsidiaries than
the financial covenants contained in Section 10 of this Agreement or
to add additional financial covenants or to make the existing Bank
Credit Agreement covenants more restrictive than the financial
covenants in the Bank Credit Agreement on the Effective Date, then
such more restrictive financial covenants and any related
definitions (the "Additional Financial Covenants") shall
automatically be deemed to be incorporated into Section 7.2(a) and
Section 10 of this Agreement by reference and Section 11(c) shall be
deemed to be amended to include such Additional Financial Covenants
from the time such Additional Financial Covenants become binding
upon the Company. No amendment or modification of the Additional
Financial Covenants shall result in any change in the covenants
expressly set forth in Section 10 which shall at all times remain in
effect. Promptly but in no event more than 5 Business Days following
the execution of any new Bank Credit Agreement, or any amendment to
the Bank Credit Agreement, the Company shall furnish each holder of
the Notes with a copy of such agreement. In no event shall the
Company or any Subsidiary provide any collateral or other security
to secure Indebtedness under the Bank Credit Agreement."
Section 2.4. Amendment to Section 10.1 (Consolidated Net Worth). Section
10.1 of the Note Agreement shall be and is hereby amended in its entirety to
read as follows:
"Section 10.1. Consolidated Net Worth. The Company will not,
at any time, permit Consolidated Net Worth to be less than the sum
of (i) $260,000,000 plus (ii) 50% of Consolidated Net Income (if
positive) on a cumulative basis for each fiscal quarter ending after
December 31, 2004."
Section 2.5. Amendment to Section 10.2. (Limitation on Consolidated
Indebtedness). Section 10.2 of the Note Agreement shall be and is hereby amended
in its entirety to read as follows:
"Section 10.2. Limitation on Consolidated Indebtedness. The
Company will not at any time permit:
(a) (i) the Consolidated Leverage Ratio to exceed 4.25 to 1.0
for the fiscal quarter ending March 31, 2005, 4.0 for the fiscal
quarters ending June 30, 2005 and September 30, 2005, and 3.0 to 1.0
for each fiscal quarter ending thereafter; and (ii) the ratio of
Consolidated Total Indebtedness to Consolidated Total Capitalization
to exceed 0.45 to 1.0; provided that in connection with any
calculation of Indebtedness for purposes of determining compliance
with this Section 10.2(a), there shall be excluded all Indebtedness
of the Company and its Subsidiaries
-3-
<PAGE>
outstanding under any revolving credit agreement between the Company
and a committed bank or banks if, during the 365-day period
immediately preceding the date of any such calculation of
Indebtedness, there shall have been a period of at least 60
consecutive days on each day of which Indebtedness of the Company
and its Subsidiaries outstanding under such revolving credit
agreement is equal to zero by virtue, and solely by virtue, of such
Indebtedness having been paid from general corporate funds of the
Company and not from funds borrowed by the Company or any Subsidiary
pursuant to any other revolving credit agreement for the purpose of
paying such Indebtedness. If there shall not have been such 60
consecutive day period on each day of which such Indebtedness was
equal to zero, then and in such event there shall be included in
such calculation of Indebtedness for purposes of this Section
10.2(a) an amount equal to the average aggregate amount of all
Indebtedness outstanding under such revolving credit agreement
during such preceding 365-day period; and
(b) Priority Debt to exceed $7,500,000 at any time. In
addition from and after the Effective Date, no Priority Debt shall
be incurred except by foreign Subsidiaries of the Company under
agreements for which the Company shall have no liability except
pursuant to an unsecured Guaranty of such Subsidiary obligation."
Section 2.6. Amendment to Section 10.3 (Fixed Charge Coverage Ratio).
Section 10.3 of the Note Agreement shall be and is hereby amended in its
entirety to read as follows:
"Section 10.3. Fixed Charge Coverage Ratio. The Company will
not at any time permit the Fixed Charge Coverage Ratio to be less
than 1.25 to 1.0 for the fiscal quarters ending March 31, 2005 and
June 30, 2005, 1.50 to 1.0 for the fiscal quarter ending September
30, 2005, 1.75 to 1.0 for the fiscal quarter ending December 31,
2005, 2.0 to 1.0 for each of the fiscal quarters ending March 31,
2006 and June 30, 2006, 2.25 to 1.0 for each of the fiscal quarters
ending September 30, 2006 and December 31, 2006, and 2.5 to 1.0 for
each fiscal quarter ending thereafter."
Section 2.7. Amendment to Section 10.5 (Sale of Assets). Section 10.5 of
the Note Agreement shall be and is hereby amended in its entirety to read as
follows:
"Section 10.5. Sale of Assets. The Company will not, and will
not permit any Subsidiary to, sell, lease or otherwise dispose of
any substantial part (as defined below) of the assets of the Company
and its Subsidiaries; provided, however, that the Company or any
Subsidiary may sell, lease or otherwise dispose of assets (including
the sale of Receivables pursuant to Securitization Transactions)
constituting a substantial part of the assets of the
-4-
<PAGE>
Company and its Subsidiaries if such assets are sold in an arms
length transaction and, at such time and after giving effect
thereto, no Default or Event of Default shall have occurred and be
continuing and an amount equal to the Net Proceeds received from
such sale, lease or other disposition shall be used within 365 days
of such sale, lease or disposition, in any combination:
(1) to acquire productive assets used or useful in carrying on
the business of the Company and its Subsidiaries and having a value
at least equal to the value of such assets sold, leased or otherwise
disposed of; or
(2) to prepay or retire Senior Indebtedness of the Company
and/or its Subsidiaries; provided that the Company (i) shall offer
to prepay each outstanding Note in a principal amount which equals
the Ratable Portion for such Note, and (ii) any such prepayment of
the Notes shall be made at par, together with accrued interest and
the applicable Make-Whole Amount or other premium to the date of
such prepayment.
Any offer of prepayment of the Notes pursuant to this Section
10.5 shall be given to each holder of the Notes by written notice
which shall be delivered not less than 120 days and not more than
180 days prior to the proposed prepayment date. Each such notice
shall state that it is given pursuant to this Section and that the
offer set forth in such notice must be accepted by such holder in
writing and shall also set forth (i) the prepayment date, (ii) a
description of the circumstances which give rise to the proposed
prepayment, and (iii) a calculation of the Ratable Portion for such
holder's Notes. Each holder of the Notes which desires to have its
Notes prepaid shall notify the Company in writing delivered not more
than 60 days nor less than 30 days prior to the proposed prepayment
date of its acceptance of such offer of prepayment. If any holder of
the Notes (or any other Senior Indebtedness) elects not to accept
such offer of prepayment, then, only for purposes of such
application of an amount equal to such Net Proceeds for the
prepayment of Senior Indebtedness, the Company nevertheless will be
deemed on such particular occasion to have paid Senior Indebtedness
in an amount equal to the Ratable Portion of such Note (or such
other Senior Indebtedness, as the case may be).
As used in this Section 10.5, a sale, lease or other
disposition of assets shall be deemed to be a "substantial part" of
the assets of the Company and its Subsidiaries if the book value of
such assets, when added to the book value of all other assets sold,
-5-
<PAGE>
leased or otherwise disposed of by the Company and its Subsidiaries
from the date of this Agreement to and including the date of the
sale, lease or other disposition of such assets exceeds $20,000,000;
provided that there shall be excluded from any determination of a
"substantial part" any (i) sale or disposition of assets in the
ordinary course of business of the Company and its Subsidiaries,
(ii) any transfer of assets from the Company to any Subsidiary or
from any Subsidiary to the Company or another Subsidiary, and (iii)
any Excluded Sale and Leaseback Transaction."
Section 2.8. Amendment to Section 10.9 (Restricted Payments). Section 10.9
of the Note Agreement shall be and is hereby amended in its entirety to read as
follows:
"Section 10.9. Restricted Payments. The Company will not:
(1) declare or pay any dividends, either in cash or property,
on any shares of its capital stock of any class (except dividends or
other distributions payable solely in shares of common stock of the
Company),
(2) directly or indirectly, or through any Subsidiary or
through any Affiliate of the Company, purchase, redeem or retire any
shares of its capital stock of any class or any warrants, rights or
options to purchase or acquire any shares of its capital stock
(other than in exchange for or out of the net cash proceeds to the
Company from the substantially concurrent issue or sale of shares of
common stock of the Company or warrants, rights or options to
purchase or acquire any shares of its common stock), or
(3) make any other payment or distribution, either directly or
indirectly or through any Subsidiary, in respect of its capital
stock."
Section 2.9. Amendment to Section 10.10 (Prepayment and Purchase of
Notes). Section 10.10 of the Note Agreement shall be and is hereby amended in
its entirety to read as follows:
"Section 10.10. Prepayment and Purchase of Notes. So long as
any 1997 Note shall be outstanding, the Company will not make any
optional prepayment of the Series 2003-A Notes pursuant to Section
8.2 or otherwise prepay or purchase any Series 2003-A Notes from any
holder unless concurrently therewith, the Company shall prepay or
purchase, as the case may be, a pro rata principal amount of the
1997 Notes."
-6-
<PAGE>
Section 2.10. Amendment to Section 10.11 (Capital Expenditures and
Acquisitions). Section 10.11 of the Note Agreement shall be and is hereby
amended in its entirety to read as follows:
"Section 10.11. Capital Expenditures and Acquisitions. The
Company will not, and will not permit any Subsidiary to, make any
(a) Capital Expenditures or (b) acquisitions of stock or other
equity interests in any Person, or all or substantially all of the
assets of any Person if the aggregate amount of all such Capital
Expenditures and acquisitions made by the Company and its
Subsidiaries would exceed (i) $40,000,000 during the fiscal year
ending December 31, 2005 and (ii) $40,000,000 during the fiscal year
ending December 31, 2006; provided that any calculation of Capital
Expenditures during such periods shall be done net of proceeds
realized by the Company from the routine sale of fixed assets in the
ordinary course of business during such period so long as such sale
of fixed assets comply with the requirements of Section 10.5 hereof
and the proceeds therefrom are applied in the manner described in
10.5(1)."
Section 2.11. Amendment to Section 10.12 (Deletion of Acquisition; New
Covenant). Section 10.12 of the Note Agreement shall be and is hereby amended in
its entirety to read as follows:
"Section 10.12. Bank Credit Agreement.
(a) The Company shall at all times maintain a Bank Credit
Agreement which provides for commitments in favor of the Company of
not less than $25,000,000.
(b) So long as the Company is required to maintain an
Unrestricted Cash Balance under the Bank Credit Agreement, initially
$50,000,000 or its equivalent in any other currency, the Company
will not permit such Unrestricted Cash Balance to be less than the
amount from time to time required under the Bank Credit Agreement."
Section 2.12. Amendment to Section 11 (Events of Default). Section 11(g)
of the Note Agreement shall be and is hereby amended by deleting each reference
therein to "5% of Consolidated Net Worth" and substituting in lieu thereof a
reference to "$5,000,000".
Section 2.13. Amendment to Schedule B (Definitions - Amended Terms). The
definitions of "Applicable Rate", "Bank Credit Agreement", "Capital
Expenditures", "Effective Date", "Make-Whole Amount" and "Rentals" shall be and
are hereby amended in their entirety to read as follows:
-7-
<PAGE>
"`Applicable Rate' has the meaning set forth in Section 2.1 of
the Second Amendment."
"`Bank Credit Agreement' shall mean the Amended and Restated
Credit Agreement dated as of March 12, 2004 between the Company and
Bank of America, N.A., as such agreement may be amended, restated,
joined, supplemented, renewed, replaced, refunded or refinanced from
time to time and any successor bank credit facility which
constitutes the primary bank credit facility of the Company."
"`Capital Expenditure' means an expenditure for an asset that
must be depreciated or amortized under GAAP, for goodwill, or for
any asset that under GAAP must be treated as a capital asset,
including payments under Capital Leases. An expenditure for purposes
of this definition includes any deferred or seller financed portion
of the purchase price of an asset and the original capitalized
amount of a Capital Lease. Capital Expenditures shall exclude
expenditures by the Company and its Subsidiaries for equipment
related to its tunnel business which is acquired by the Company or
any Subsidiary in connection with the performance of any
construction contract but only to the extent to which the Company
has received payments under the contract sufficient to cover the
cost of the equipment."
"`Effective Date' has the meaning set forth in Section 4.1 of
the Second Amendment."
"`Make-Whole Amount' shall have the meaning (i) set forth in
Section 8.6 with respect to any Series 2003-A Note and (ii) set
forth in the applicable Supplement with respect to any other Series
of Notes; provided that notwithstanding anything herein to the
contrary, in the calculation of any Make-Whole Amount payable to a
holder of a 2003-A Note pursuant to Section 8, Section 10.5 or
Section 12.1 of this Agreement the rate of interest borne by any
such Series 2003-A Note shall be deemed to be 6.04% per annum."
"`Rentals' means and includes as of the date of any
determination thereof, without duplication, all fixed payments
(including as such all payments which the lessee is obligated to
make to the lessor on termination of the lease or surrender of the
property) payable by the Company or a Subsidiary, as lessee or
sublessee under a lease of real or personal property, but shall be
exclusive of any amounts required to be paid by the Company or a
Subsidiary (whether or not designated as rents or additional rents)
on account of maintenance, repairs, insurance, taxes and similar
-8-
<PAGE>
charges. Fixed rents under any so-called "percentage leases" shall
be computed solely on the basis of the minimum rents, if any,
required to be paid by the lessee regardless of sales volume or
gross revenues."
"`Second Amendment' means the Second Amendment and Waiver to
Note Purchase Agreement dated as of March 16, 2005 between the
Company and the holders of Notes, in respect of this Agreement."
Section 2.14. Amendment to Schedule B (Definitions - New Terms). Schedule
B of the Note Agreement shall be and is hereby amended by the addition thereto
of the following new definitions which shall appear in alphabetical order
therein and which shall read as follows:
"`Consolidated Adjusted Net Worth' means as of the date of any
determination thereof, without duplication, the arithmetic sum of:
(a) the amount of the consolidated stockholders' equity of the
Company and its Subsidiaries as reflected in its most recent
quarterly financial statements,
PLUS
(b) Minority Interests and deferred tax liabilities of the Company
and its Subsidiaries up to an amount not exceeding $10,000,000 in
the aggregate;
MINUS
(c) the net book value, after deducting any reserves
applicable thereto, of all items of the following character which
are included in the assets of the Company and its Subsidiaries, to
wit:
(i) the incremental increase in an asset resulting from any
reappraisal, revaluation or write-up of assets (other than any
revaluation or write-up of assets in accordance with GAAP);
(ii) goodwill or the "cost in excess of net assets of
businesses acquired" to the extent and in the amount by which the
net book value thereof exceeds $70,000,000; and
(iii) patents, patent applications, permits, trademarks, trade
names, copyrights, licenses, franchises, experimental expense,
organizational expense, unamortized debt discount and expense, and
such other assets (other than goodwill or the "cost in excess of net
assets of businesses acquired") as are properly
-9-
<PAGE>
classified as "intangible assets" in accordance with GAAP to the
extent and in the amount by which the net book value thereof exceeds
$20,000,000;
all determined in accordance with GAAP."
"`Consolidated Total Capitalization' means as of the date of
any determination thereof, without duplication, the sum of (a)
Consolidated Total Indebtedness plus (b) Consolidated Adjusted Net
Worth."
"`Consolidated Total Indebtedness' means as of the date of any
determination thereof, without duplication, all Indebtedness of the
Company and its Subsidiaries after eliminating all offsetting debits
and credits between the Company and its Subsidiaries and all other
items to be eliminated in the course of the preparation of
consolidated financial statements of the Company and its
Subsidiaries in accordance with GAAP."
"`Minority Interest' means, without duplication, any shares of
stock of any class of a Subsidiary (other than directors' qualifying
shares as required by law) that are not owned by the Company and/or
one or more of its Subsidiaries. Minority Interests shall be valued
by valuing Minority Interests constituting preferred stock at the
voluntary or involuntary liquidating value of such preferred stock,
whichever is greater, and by valuing Minority Interests constituting
common stock at the book value of common stock, additional paid-in
capital and retained earnings applicable thereto adjusted, if
necessary, to reflect any changes from the book value of such common
stock required by the foregoing method of valuing Minority Interests
in preferred stock."
"`Ratable Portion' means, with respect to any Note, an amount
equal to the product of (x) the amount equal to the Net Proceeds
being so applied to the prepayment of Senior Indebtedness multiplied
by (y) a fraction the numerator of which is the outstanding
principal amount of such Note and the denominator of which is the
aggregate principal amount of Senior Indebtedness of the Company and
its Subsidiaries."
"`Unrestricted Cash Balance' means as of any date of
determination for the Company and its Subsidiaries on a consolidated
basis, an amount equal to the sum of cash and cash equivalents
(excluding any restricted cash balances or other retainage
deposits), determined in accordance with GAAP."
-10-
<PAGE>
Section 2.15. Amendment to Schedule B (Definitions - Omnibus Change).
Schedule B to the Note Agreement shall be and is hereby amended by deleting the
term "Restricted" from each instance of its usage in the following definitions:
"Consolidated Indebtedness", "Consolidated Leverage Ratio", "Consolidated Net
Income", "EBITDA", "Interest Expense", "Priority Debt", "Rentals" and
"Wholly-Owned Restricted Subsidiary".
SECTION 3. REPRESENTATIONS AND WARRANTIES OF THE COMPANY.
Section 3.1. To induce the Noteholders to execute and deliver this Second
Amendment, the Company represents and warrants (which representations shall
survive the execution and delivery of this Second Amendment) to the Noteholders
that:
(a) this Second Amendment has been duly authorized, executed and
delivered by it and this Second Amendment constitutes the legal, valid and
binding obligation, contract and agreement of the Company enforceable
against it in accordance with its terms, except as enforcement may be
limited by bankruptcy, insolvency, reorganization, moratorium or similar
laws or equitable principles relating to or limiting creditors' rights
generally;
(b) the Note Agreement and the Notes, as amended by this Second
Amendment, constitute the legal, valid and binding obligations, contracts
and agreements of the Company enforceable against it in accordance with
their terms, except as enforcement may be limited by bankruptcy,
insolvency, reorganization, moratorium or similar laws or equitable
principles relating to or limiting creditors' rights generally;
(c) the execution, delivery and performance by the Company of this
Second Amendment (i) has been duly authorized by all requisite corporate
action and, if required, shareholder action, (ii) does not require the
consent or approval of any governmental or regulatory body or agency, and
(iii) will not (A) violate (1) any provision of law, statute, rule or
regulation or its certificate of incorporation or bylaws, (2) any order of
any court or any rule, regulation or order of any other agency or
government binding upon it, or (3) any provision of any material
indenture, agreement or other instrument to which it is a party or by
which its properties or assets are or may be bound, or (B) result in a
breach or constitute (alone or with due notice or lapse of time or both) a
default under any indenture, agreement or other instrument referred to in
clause (iii)(A)(3) of this Section 3.1(c), other than any violation,
breach or default which individually or in the aggregate could not
reasonably be expected to have a Material Adverse Effect;
(d) as of the date hereof and after giving effect to this Second
Amendment, no Default or Event of Default has occurred which is
continuing;
(e) the unaudited financial statements of the Company for the fiscal
year ended December 31, 2004 furnished to you do not, nor does any written
statement furnished by the Company to you in connection with the execution
and delivery of this Second Amendment, contain any untrue statement of a
material fact or omit to state any material fact necessary to make the
statements contained therein not misleading in light
-11-
<PAGE>
of the circumstances under which they were made. There is no fact known to
the Company which the Company has not disclosed to you in writing which
could reasonably be expected to have a Material Adverse Effect; and
(f) The Company has not paid any consideration to any holder of
indebtedness of the Company in connection with the transactions
contemplated by this Second Amendment, except for the legal fees of
counsel to the holders of such indebtedness and consideration paid to the
holders of the 1997 Notes which is identical to the consideration to be
paid to the holders of the Notes and consideration paid to Bank of
America, N.A. pursuant to and as set forth in the First Amendment to
Credit Agreement dated as of March 16, 2005 (the "Bank Credit Agreement
Amendment") between the Company and Bank of America, N.A. (in respect of
the Amended and Restated Credit Agreement dated as of March 12, 2004 (the
"Bank Credit Agreement") between the Company and Bank of America, N.A.).
SECTION 4. CONDITIONS TO EFFECTIVENESS OF THIS SECOND AMENDMENT.
Section 4.1. This Second Amendment shall become effective when each of the
following conditions has been satisfied:
(a) executed counterparts of this Second Amendment, duly executed by
the Company and the holders of at least 51% of the outstanding principal
of the Notes, shall have been delivered to the Noteholders;
(b) executed copies of a consent to this Agreement shall have been
duly executed by the Subsidiaries which are parties to the Subsidiary
Guaranties;
(c) the representations and warranties of the Company set forth in
Section 3 hereof shall be true and correct on and with respect to the date
hereof and a certificate of a Responsible Officer certifying the same
shall have been delivered to the Noteholders;
(d) the Fifth Amendment to Note Purchase Agreement dated as of March
16, 2005, in respect of the 1997 Notes, shall have been duly executed and
delivered by the requisite percentage of the noteholders thereunder needed
to approve such amendment and such agreement shall be in form and
substance satisfactory to each Noteholder;
(e) the Company shall have paid a fee to each Noteholder in an
amount equal to .25% of the outstanding principal amount of the Notes held
by such Noteholder;
(f) Thompson Coburn LLP, counsel for the Company, shall have
delivered a legal opinion, dated as of the effective date of this Second
Amendment, in form and substance reasonably satisfactory to the
Noteholders and their special counsel to the effect that this Second
Amendment constitutes the legal, valid and binding obligation of the
Company;
-12-
<PAGE>
(g) the Bank Credit Agreement Amendment shall have been duly
executed and delivered by the parties thereto and such agreement shall be
in form and substance satisfactory to each Noteholder executing the Second
Amendment; and
(h) the Company shall have paid the fees, costs, expenses and
disbursements of Chapman and Cutler LLP, special counsel to the
Noteholders, incurred in connection with the consummation of the
transactions contemplated by this Second Amendment.
Upon receipt of all of the foregoing, this Second Amendment shall become
effective. Delivery of this Second Amendment to the Company, duly executed by
the holders of at least 51% of the outstanding principal amount of the Notes,
shall acknowledge satisfaction of the foregoing conditions. The date upon which
this Second Amendment becomes effective is herein referred to as the "Effective
Date." The Company shall give written notice to the Noteholders of the Effective
Date, confirming the date upon which the increased interest rate referred to in
Section 2.1 hereof shall begin to accrue.
SECTION 5. MISCELLANEOUS.
Section 5.1. Automatically, and without any further action on the part of
the Company or any holder of a Note, on the Effective Date, the Notes shall be
deemed to be amended to reflect the change in interest rate set forth in Section
2.1 of this Second Amendment; provided, however, that if any holder of a Note
elects to surrender its Note (an "Existing Note") to the Company for
cancellation and the issuance of a new note reflecting such change in interest
rate (a "New Note"), the Company shall issue a New Note to such holder within 5
business days of receipt of the Existing Note surrendered therefor, such New
Note to be dated the date to which interest has been paid on the Existing Note
surrendered therefor and such New Note shall be payable on the same dates as set
forth in the Existing Note surrendered therefor.
Section 5.2. Release of Claims. In further consideration of each
Noteholder's execution of this Second Amendment, the Company hereby releases
each Noteholder and its respective affiliates, officers, employees, directors,
trustees, agents and attorneys (collectively, the "Releasees") from any and all
claims, demands, liabilities, responsibilities, disputes, causes of action
(whether at law or in equity) and obligations of every nature whatsoever,
whether liquidated or unliquidated, known or unknown, matured or unmatured,
fixed or contingent, that the Company may have against the Releasees which arise
from or relate to any actions which the Releasees may have taken or omitted to
take prior to the date thereof with respect to the Notes, the Note Agreement or
the Subsidiary Guaranty. For purposes of the release contained in this section,
the term "Company" shall mean and include such party's successors and assigns,
including, without limitation, any trustees acting on behalf of such party and
any debtor-in-possession in respect of such party.
Section 5.3. The Company acknowledges and agrees that by agreeing to the
amendments of the Note Agreement set forth herein, the Noteholders shall not be
deemed to have waived any rights as on account of any Default or Event of
Default which may at any time hereafter exist under the Note Agreement, which
rights are hereby expressly reserved by the holders of the Notes.
-13-
<PAGE>
Section 5.4. This Second Amendment shall be construed in connection with
and as part of the Note Agreement, and except as modified and expressly amended
by this Second Amendment, all terms, conditions and covenants contained in the
Note Agreement and the Notes are hereby ratified and shall be and remain in full
force and effect.
Section 5.5. Any and all notices, requests, certificates and other
instruments executed and delivered after the execution and delivery of this
Second Amendment may refer to the Note Agreement without making specific
reference to this Second Amendment but nevertheless all such references shall
include this Second Amendment unless the context otherwise requires.
Section 5.6. The descriptive headings of the various Sections or parts of
this Second Amendment are for convenience only and shall not affect the meaning
or construction of any of the provisions hereof.
Section 5.7. This Second Amendment shall be governed by and construed in
accordance with Illinois law.
-14-
<PAGE>
The execution hereof by you shall constitute a contract between us for
the uses and purposes hereinabove set forth, and this Second Amendment may
be executed in any number of counterparts, each executed counterpart
constituting an original, but all together only one agreement.
INSITUFORM TECHNOLOGIES, INC.
By /s/ Christian G. Farman
Name: Christian G. Farman
Title: Senior Vice President and CFO
<PAGE>
Accepted and agreed to as of the date first written above:
CONNECTICUT GENERAL LIFE INSURANCE COMPANY
By: CIGNA Investments, Inc. (authorized
agent)
By /s/ Stephen A. Osborn
Name: Stephen A. Osborn
Title: Managing Director
<PAGE>
Accepted and agreed to as of the date first written above:
THE NORTHWESTERN MUTUAL LIFE INSURANCE
COMPANY
By /s/ David A. Barras
Name: David A. Barras
Title: Authorized Representative
<PAGE>
Accepted and agreed to as of the date first written above:
PRINCIPAL LIFE INSURANCE COMPANY,
an Iowa corporation
By: Principal Global Investors, LLC, a
Delaware limited liability company,
its authorized signatory
By /s/ John C. Heing
---------------------------------
Name: John C. Heing
---------------------------
Title: Counsel
---------------------------
By /s/ Stephen G. Skrivanek
---------------------------------
Name: Stephen G. Skrivanek
---------------------------
Title: Counsel
---------------------------
MELLON BANK, N.A., solely in its capacity
as Custodian for the Aviva Life -
Principal Glob Priv Structured
Settlements IMM ANN (as directed by the
Principal Global Investors, LLC), and
not in its individual capacity (MAC &
CO) - Nominee Name
By /s/ Bernadette T. Rist
Name: Bernadette T. Rist
Title: Authorized Signatory
CALHOUN & CO., as nominee for Comerica
Bank & Trust, National Association,
Trustee to the Trust created by Trust
Agreement dated October 1, 2002
By /s/ Annette Lawson
---------------------------------
Name: Annette Lawson
---------------------------
Title: Attorney-in-fact and Agent
---------------------------
<PAGE>
Accepted and agreed to as of the date first written above:
THE SECURITY FINANCIAL LIFE INSURANCE CO.
By /s/ David T. Wallman
Name: David T. Wallman
Title: Senior Vice President & Chief
Actuary
</TEXT>
</DOCUMENT>
<DOCUMENT>
<TYPE>EX-10.9
<SEQUENCE>5
<FILENAME>c93062exv10w9.txt
<DESCRIPTION>EMPLOYMENT LETTER
<TEXT>
<PAGE>
EXHIBIT 10.9
[INSITUFORM TECHNOLOGIES;INC. LOGO]
Worldwide Pipeline 702 Spirit 40 Park Drive Tel:(636) 530-8000
Rehabilitation Chesterfield, MO 63005-3700 Fax:(636) 530-8746
December 23, 2004
Mr. David Morris
1843 Kennet Place
St. Louis, MO 63104
Dear David:
It is indeed a pleasure to offer you the position of Vice President and General
Counsel for Insituform Technologies, Inc. This letter outlines the details of
your offer.
1. BASE SALARY: In accepting this position, you will be paid a base salary of
$17,500 per month ($210,000 annualized). Your base salary will be reviewed
on an annual basis by the Compensation Committee and Board of Directors of
ITI.
2. ANNUAL INCENTIVE BONUS: In addition, you will be eligible for out
Management Annual Incentive program at a target rate of 40% of your annual
base pay. This is a discretionary incentive program, and the amount of
money available for incentive payments, if any, is determined by how well
the company meets specific financial targets. Full details of this plan
are provided in the enclosed incentive plan document. The amount and
criteria for your annual incentive bonus will be reviewed annually by the
Compensation Committee.
3. LONG TERM INCENTIVES: You are eligible to participate in the Insituform
Technologies, Inc. Long Term Incentive Plan (the "LTIP"). Currently, the
Company makes annual awards of stock options, restricted stock and
performance cash to LTIP participants at your level. The targeted annual
value of your total LTIP award is currently $180,000. The actual award
will be made in the first half of each calendar year. The total amount of
your award and the mix of award types will be subject to approval by the
Compensation Committee of the Board.
4. DEFERRED COMPENSATION: You are also eligible to participate in the Senior
Management Voluntary Deferred Compensation Plan (the "DCP"). Tax deferred
contributions may be made into the DCP after the maximum allowable
contribution (as defined by the IRS) has been made into ITI's 401(k) plan.
The first 3% of DCP contributions are matched by ITI at 100% and the next
2% are matched at a 50% rate. The maximum company match to both the 401(k)
and DCP together is $8,400 (for 2005).
5. ADDITIONAL BENEFITS:
a. You will be provided with a car allowance of $850.00 per month,
subject to adjustment in accordance with ITI's policy.
b. You will be provided with a cell phone allowance of $175.00 per
month, subject to adjustment in accordance with ITI's policy.
<PAGE>
c. As an employee of Insituform, you are also eligible for our
comprehensive benefits programs as outlined on the enclosed benefits
summary. We provide a wide array of benefits for both you and your
family including a 401(k) plan, health, dental, life and disability
insurance. While the attached contains benefit eligibility and
overages, specifics will be provided in the plan documents you will
receive on your first date of employment. As with any company
benefits, these are subject to change with or without notice and
operate at the sole discretion of the company.
d. You will receive holidays in accordance with ITI's policy, and three
weeks vacation per year.
e. Severance: As Vice President and General Counsel, you will report to
the Chief Executive Officer and you will serve at the pleasure of
the ITI Board of Directors; however, if your employment is
terminated by ITI for reasons other than "cause" (as defined below)
during your first 24 months of employment, you will receive, upon
such termination, a severance payment equal to twelve months' base
salary, car allowance, medical/dental benefits, and reasonable
outplacement assistance.
The amount of "base salary" will be calculated as the product obtained by
multiplying (i) the number of months of severance you are entitled by (ii)
your highest monthly base salary during the twelve months prior to your
termination.
"Cause" shall be defined as:
(i) Your willful and continued failure to perform substantially your
duties with ITI or any of its affiliates (other than failure
resulting from incapacity due to physical or mental illness), after
a written demand for substantial performance is delivered to you by
the Chairman of the Board of Directors which specifically identifies
the manner in which the Board of Directors believes that you have
not substantially performed your duties; or
(ii) Your willful engaging in illegal conduct or gross misconduct which
is materially and demonstrably injurious to ITI, whether or not
sub-sequentially discontinued or corrected; or
(iii) Your conviction of a crime other than misdemeanor traffic offenses
or commission of an act of moral turpitude; or
(iv) Your inability to report to work for a period of four months or
greater.
Cessation of employment shall not be deemed for "cause" unless and until
there shall have been delivered to you a copy of a resolution duly adopted
by the affirmative vote of on less than majority of the entire membership
of the Board of Directors, finding that, in the good faith opinion of the
Board of Directors, you are guilty of the conduct described.
6. CONFIDENTIALITY AND NON-COMPETITION, DRUG TESTING AND BACKGROUND CHECK:
You must sign ITI's standard Employee Confidentiality, Work Product and
Non-Competition Agreement. Our offer of employment is contingent upon
verification of a satisfactory background check, the successful completion
of a pre-employment drug screen for controlled substances and evidence of
your US employment eligibility (I-9 Form). Your drug screening will be
paid for by Insituform and must be completed prior to your start date.
Please contact Jennifer Guinto at (636) 530-8068 within 24 hours of your
acceptance to arrange your drug screening.
This letter (and the terms of the plans, documents and standard agreements
referred to herein) contains the entire agreement of both parties with respect
to the subject matter hereof, and
<PAGE>
supercedes any and all prior understanding, commitments and agreements with
respect thereto. The terms of this letter (but not the standard agreements
referred to herein) will expire when the severance provisions expire.
Your appointment as Vice President and General Counsel will not be effective
until your first date of employment with ITI as its executive office in
Chesterfield, Missouri. We propose a start date on or about January 4, 2005.
If the above terms accurately reflect your understanding and agreement, please
sign this letter where indicated below along with the enclosed confidentiality
agreement. Please make one copy of each for your personal records and return the
originals to me acknowledging your acceptance.
Sincerely,
/s/ Thomas S. Rooney, Jr.
Thomas S. Rooney, Jr.
President and Chief Executive Officer
Enclosures
Accepted and Agreed:
I accept the position of Vice President and General Counsel with Insituform
Technologies, Inc. and the details of the position as outlined herein.
/s/ David F. Morris 12/31/04
- ----------------------------- ----------------------------
David F. Morris Date
</TEXT>
</DOCUMENT>
<DOCUMENT>
<TYPE>EX-10.15
<SEQUENCE>6
<FILENAME>c93062exv10w15.txt
<DESCRIPTION>EQUIPMENT LEASE
<TEXT>
<PAGE>
EXHIBIT 10.15
EQUIPMENT LEASE
THIS LEASE executed as of January 1, 2005, between A-Y-K-E Partnership, a
partnership (hereafter referred to as "LESSOR"), and Affholder, Inc., a Missouri
corporation (hereinafter referred to as "LESSEE").
1. LESSOR leases to LESSEE, and LESSEE leases from LESSOR, one (1) 125 Ton
American Crane, Model 7530.
2. The term of this Lease shall begin January 1, 2005 and shall end
December 31, 2005.
3. The leased property shall be used solely for the installation of Ashley
River Sewer Tunnel, Phase II, Charleston, SC.
4. LESSOR will be paid $8,500.00 per month (single shift) as rental for
the above listed cranes. Rent is payable on the last day of each month, in
arrears, and pro-rated for partial months. Second shift rental will be charged @
50% of the single shift rate.
5. LESSEE may not make alterations, additions or improvements to the
leased property, without prior written notification to and approval by LESSOR.
All such additions to and improvements shall immediately become the property of
the LESSOR and subject to the terms of this Lease.
6. LESSEE, at its own cost and expense, shall keep the leased property in
good repair, condition and working order, and shall not subject the leased
property to careless or needlessly rough usage.
7. LESSOR shall at all times during business hours have the right to enter
upon the premises where the leased property may be located for the purpose of
inspecting it or observing its use.
8. The leased property shall be delivered to LESSEE at Charleston, SC, on
or before January 1, 2005, and shall be returned to LESSOR at St. Louis, MO at
the termination of this Lease. All transportation charges, including duties,
from the delivery site to the job site and from the job site to the return site
shall be the responsibility of LESSEE. LESSEE shall inspect the leased property
before the commencement of the Lease. Unless LESSEE gives written notice to the
LESSOR within five (5) days after first test use of the leased property
specifying any defect in or other objection to the leased property, it shall be
conclusively presumed, as between LESSOR and LESSEE, that LESSEE has fully
inspected the leased property and found it to be in good condition and repair
and in full conformance with any and all express or implied representations,
promises, statements or warranties with respect to the merchantability,
suitability, or fitness for purpose of the leased property. If LESSEE rejects
the leased property for good cause, this Lease shall be null and void. All
loading and unloading charges at the delivery and return site shall be the
responsibility of the LESSEE.
9. LESSEE, at its own expense, shall keep the leased property insured for
casualty risks required by LESSOR (no underground exclusion) in the amount of
$400,000.00, with carriers acceptable to LESSOR and a loss payable endorsement
in favor of LESSOR, and LESSEE shall further maintain liability
<PAGE>
insurance in the amount of $1,000,000.00 naming LESSOR as an additional insured,
and all policies shall provide that they may not be cancelled or altered without
at least ten (10) days' prior written notice to LESSOR. LESSOR shall maintain
insurance coverage of the leased equipment until it is received by LESSEE at
point of delivery.
10. LESSEE shall pay all taxes and fees connected with this Lease or the
LESSEE's use of the leased property, including any use, personal property, or
sales taxes resulting therefrom.
11. LESSEE shall indemnify LESSOR against all claims, actions,
proceedings, costs, damages and liabilities, including attorney's fees, arising
out of, connected with this Lease, or resulting from the use of the leased
property.
12. This Lease shall be governed by and construed under the laws of the
State of Missouri.
13. Without the prior written consent of the LESSOR, LESSEE shall not
assign, transfer, pledge or hypothecate this Lease, the leased property, or any
part thereof, or any interest therein, nor sublet or lend the property or any
part thereof, nor permit the leased property or any part thereof to be used by
anyone other than the LESSEE or LESSEE's employees.
14. This instrument shall be binding upon and inure to the benefit of the
respective parties and their legal representatives, successors and assigns.
IN WITNESS WHEREOF, this instrument was executed by the parties as of the
date above written.
AFFHOLDER, INC. A-Y-K-E PARTNERSHIP
BY /s/ Thomas S. Rooney, Jr. BY /s/ Robert W. Affholder
---------------------------- -----------------------------
Thomas S. Rooney, Jr., Robert W. Affholder,
President and Chief Executive Officer Partner
"LESSEE" "LESSOR"
</TEXT>
</DOCUMENT>
<DOCUMENT>
<TYPE>EX-10.16
<SEQUENCE>7
<FILENAME>c93062exv10w16.txt
<DESCRIPTION>EQUIPMENT LEASE
<TEXT>
<PAGE>
EXHIBIT 10.16
EQUIPMENT LEASE
THIS LEASE executed as of January 1, 2005, between A-Y-K-E Partnership, a
partnership (hereafter referred to as "LESSOR"), and Affholder, Inc., a Missouri
corporation (hereinafter referred to as "LESSEE").
1. LESSOR leases to LESSEE, and LESSEE leases from LESSOR, one (1) 100 Ton
Link Belt Crane, Model LS 338.
2. The term of this Lease shall begin January 1, 2005 and shall end
December 31, 2005.
3. The leased property shall be used solely for the construction of the
Ashley River Sewer Tunnel, Phase II, Charleston, SC.
4. LESSOR will be paid $6,000.00 per month (single shift) as rental for
the above listed cranes. Rent is payable on the last day of each month, in
arrears, and pro-rated for partial months.
5. LESSEE may not make alterations, additions or improvements to the
leased property, without prior written notification to and approval by LESSOR.
All such additions to and improvements shall immediately become the property of
the LESSOR and subject to the terms of this Lease.
6. LESSEE, at its own cost and expense, shall keep the leased property in
good repair, condition and working order, and shall not subject the leased
property to careless or needlessly rough usage.
7. LESSOR shall at all times during business hours have the right to enter
upon the premises where the leased property may be located for the purpose of
inspecting it or observing its use.
8. The leased property shall be delivered to LESSEE at Charleston, SC, on
or before January 1, 2005, and shall be returned to LESSOR at St. Louis, MO at
the termination of this Lease. All transportation charges, including duties,
from the delivery site to the job site and from the job site to the return site
shall be the responsibility of LESSEE. LESSEE shall inspect the leased property
before the commencement of the Lease. Unless LESSEE gives written notice to the
LESSOR within five (5) days after first test use of the leased property
specifying any defect in or other objection to the leased property, it shall be
conclusively presumed, as between LESSOR and LESSEE, that LESSEE has fully
inspected the leased property and found it to be in good condition and repair
and in full conformance with any and all express or implied representations,
promises, statements or warranties with respect to the merchantability,
suitability, or fitness for purpose of the leased property. If LESSEE rejects
the leased property for good cause, this Lease shall be null and void. All
loading and unloading charges at the delivery and return site shall be the
responsibility of the LESSEE.
9. LESSEE, at its own expense, shall keep the leased property insured for
casualty risks required by LESSOR (no underground exclusion) in the amount of
$250,000.00, with carriers acceptable to LESSOR and a loss payable endorsement
in favor of LESSOR, and LESSEE shall further maintain liability insurance in the
amount of 1,000,000.00 naming LESSOR as an additional insured, and all policies
shall
<PAGE>
provide that they may not be cancelled or altered without at least ten (10)
days' prior written notice to LESSOR. LESSOR shall maintain insurance coverage
of the leased equipment until it is received by LESSEE at point of delivery.
10. LESSEE shall pay all taxes and fees connected with this Lease or the
LESSEE's use of the leased property, including any use, personal property, or
sales taxes resulting therefrom.
11. LESSEE shall indemnify LESSOR against all claims, actions,
proceedings, costs, damages and liabilities, including attorney's fees, arising
out of, connected with this Lease, or resulting from the use of the leased
property.
12. This Lease shall be governed by and construed under the laws of the
State of Missouri.
13. Without the prior written consent of the LESSOR, LESSEE shall not
assign, transfer, pledge or hypothecate this Lease, the leased property, or any
part thereof, or any interest therein, nor sublet or lend the property or any
part thereof, nor permit the leased property or any part thereof to be used by
anyone other than the LESSEE or LESSEE's employees.
14. This instrument shall be binding upon and inure to the benefit of the
respective parties and their legal representatives, successors and assigns.
IN WITNESS WHEREOF, this instrument was executed by the parties as of the
date above written.
, INC. A-Y-K-E PARTNERSHIP
BY /s/ Thomas S. Rooney, Jr. BY /s/ Robert W. Affholder
---------------------------- ---------------------------
Thomas S. Rooney, Jr., Robert W. Affholder,
President and Chief Executive Officer Partner
"LESSEE" "LESSOR"
</TEXT>
</DOCUMENT>
<DOCUMENT>
<TYPE>EX-10.17
<SEQUENCE>8
<FILENAME>c93062exv10w17.txt
<DESCRIPTION>EQUIPMENT LEASE
<TEXT>
<PAGE>
EXHIBIT 10.17
EQUIPMENT LEASE
THIS LEASE executed as of January 1, 2005, between A-Y-K-E Partnership, a
partnership (hereafter referred to as "LESSOR"), and Affholder, Inc., a Missouri
corporation (hereinafter referred to as "LESSEE").
1. LESSOR leases to LESSEE, and LESSEE leases from LESSOR, one (1) 125 Ton
American Crane, Model 7530.
2. The term of this Lease shall begin January 1, 2005 and shall end
December 31, 2005.
3. The leased property shall be used solely for the installation of Joint
Outfall "H" 1B, Sec. 3, Los Angeles, CA.
4. LESSOR will be paid $8,500.00 per month (single shift) as rental for
the above listed cranes. Rent is payable on the last day of each month, in
arrears, and pro-rated for partial months. Second shift rental will be charged @
50% of the single shift rate.
5. LESSEE may not make alterations, additions or improvements to the
leased property, without prior written notification to and approval by LESSOR.
All such additions to and improvements shall immediately become the property of
the LESSOR and subject to the terms of this Lease.
6. LESSEE, at its own cost and expense, shall keep the leased property in
good repair, condition and working order, and shall not subject the leased
property to careless or needlessly rough usage.
7. LESSOR shall at all times during business hours have the right to enter
upon the premises where the leased property may be located for the purpose of
inspecting it or observing its use.
8. The leased property shall be delivered to LESSEE at Los Angeles, CA, on
or before January 1, 2005, and shall be returned to LESSOR at St. Louis, MO at
the termination of this Lease. All transportation charges, including duties,
from the delivery site to the job site and from the job site to the return site
shall be the responsibility of LESSEE. LESSEE shall inspect the leased property
before the commencement of the Lease. Unless LESSEE gives written notice to the
LESSOR within five (5) days after first test use of the leased property
specifying any defect in or other objection to the leased property, it shall be
conclusively presumed, as between LESSOR and LESSEE, that LESSEE has fully
inspected the leased property and found it to be in good condition and repair
and in full conformance with any and all express or implied representations,
promises, statements or warranties with respect to the merchantability,
suitability, or fitness for purpose of the leased property. If LESSEE rejects
the leased property for good cause, this Lease shall be null and void. All
loading and unloading charges at the delivery and return site shall be the
responsibility of the LESSEE.
9. LESSEE, at its own expense, shall keep the leased property insured for
casualty risks required by LESSOR (no underground exclusion) in the amount of
$400,000.00, with carriers acceptable to LESSOR and a loss payable endorsement
in favor of LESSOR, and LESSEE shall further maintain liability
<PAGE>
insurance in the amount of $1,000,000.00 naming LESSOR as an additional insured,
and all policies shall provide that they may not be cancelled or altered without
at least ten (10) days' prior written notice to LESSOR. LESSOR shall maintain
insurance coverage of the leased equipment until it is received by LESSEE at
point of delivery.
10. LESSEE shall pay all taxes and fees connected with this Lease or the
LESSEE's use of the leased property, including any use, personal property, or
sales taxes resulting therefrom.
11. LESSEE shall indemnify LESSOR against all claims, actions,
proceedings, costs, damages and liabilities, including attorney's fees, arising
out of, connected with this Lease, or resulting from the use of the leased
property.
12. This Lease shall be governed by and construed under the laws of the
State of Missouri.
13. Without the prior written consent of the LESSOR, LESSEE shall not
assign, transfer, pledge or hypothecate this Lease, the leased property, or any
part thereof, or any interest therein, nor sublet or lend the property or any
part thereof, nor permit the leased property or any part thereof to be used by
anyone other than the LESSEE or LESSEE's employees.
14. This instrument shall be binding upon and inure to the benefit of the
respective parties and their legal representatives, successors and assigns.
IN WITNESS WHEREOF, this instrument was executed by the parties as of the
date above written.
AFFHOLDER, INC. A-Y-K-E PARTNERSHIP
BY /s/ Thomas S. Rooney, Jr. BY /s/ Robert W. Affholder
--------------------------- -----------------------------
Thomas S. Rooney, Jr., Robert W. Affholder,
President and Chief Executive Officer Partner
"LESSEE" "LESSOR"
</TEXT>
</DOCUMENT>
<DOCUMENT>
<TYPE>EX-10.18
<SEQUENCE>9
<FILENAME>c93062exv10w18.txt
<DESCRIPTION>EQUIPMENT LEASE
<TEXT>
<PAGE>
EXHIBIT 10.18
EQUIPMENT LEASE
THIS LEASE executed as of January 1, 2005, between A-Y-K-E Partnership, a
partnership (hereafter referred to as "LESSOR"), and Affholder, Inc., a Missouri
corporation (hereinafter referred to as "LESSEE").
1. LESSOR leases to LESSEE, and LESSEE leases from LESSOR, one (1) 110 Ton
American Crane, Model 999, S/N RS13230.
2. The term of this Lease shall begin January 1, 2005 and shall end
December 31, 2005.
3. The leased property shall be used solely for the installation of Ashley
River Sewer Tunnel, Phase II, Charleston, SC.
4. LESSOR will be paid $7,000.00 per month (single shift) as rental for
the above listed cranes. Rent is payable on the last day of each month, in
arrears, and pro-rated for partial months. Second shift rental will be charged @
50% of the single shift rate.
5. LESSEE may not make alterations, additions or improvements to the
leased property, without prior written notification to and approval by LESSOR.
All such additions to and improvements shall immediately become the property of
the LESSOR and subject to the terms of this Lease.
6. LESSEE, at its own cost and expense, shall keep the leased property in
good repair, condition and working order, and shall not subject the leased
property to careless or needlessly rough usage.
7. LESSOR shall at all times during business hours have the right to enter
upon the premises where the leased property may be located for the purpose of
inspecting it or observing its use.
8. The leased property shall be delivered to LESSEE at Charleston, SC, on
or before January 1, 2005, and shall be returned to LESSOR at St. Louis, MO at
the termination of this Lease. All transportation charges, including duties,
from the delivery site to the job site and from the job site to the return site
shall be the responsibility of LESSEE. LESSEE shall inspect the leased property
before the commencement of the Lease. Unless LESSEE gives written notice to the
LESSOR within five (5) days after first test use of the leased property
specifying any defect in or other objection to the leased property, it shall be
conclusively presumed, as between LESSOR and LESSEE, that LESSEE has fully
inspected the leased property and found it to be in good condition and repair
and in full conformance with any and all express or implied representations,
promises, statements or warranties with respect to the merchantability,
suitability, or fitness for purpose of the leased property. If LESSEE rejects
the leased property for good cause, this Lease shall be null and void. All
loading and unloading charges at the delivery and return site shall be the
responsibility of the LESSEE.
9. LESSEE, at its own expense, shall keep the leased property insured for
casualty risks required by LESSOR (no underground exclusion) in the amount of
$400,000.00, with carriers acceptable to LESSOR and a loss payable endorsement
in favor of LESSOR, and LESSEE shall further maintain liability
<PAGE>
insurance in the amount of $100,000,000.00 naming LESSOR as an additional
insured, and all policies shall provide that they may not be cancelled or
altered without at least ten (10) days' prior written notice to LESSOR. LESSOR
shall maintain insurance coverage of the leased equipment until it is received
by LESSEE at point of delivery.
10. LESSEE shall pay all taxes and fees connected with this Lease or the
LESSEE's use of the leased property, including any use, personal property, or
sales taxes resulting therefrom.
11. LESSEE shall indemnify LESSOR against all claims, actions,
proceedings, costs, damages and liabilities, including attorney's fees, arising
out of, connected with this Lease, or resulting from the use of the leased
property.
12. This Lease shall be governed by and construed under the laws of the
State of Missouri.
13. Without the prior written consent of the LESSOR, LESSEE shall not
assign, transfer, pledge or hypothecate this Lease, the leased property, or any
part thereof, or any interest therein, nor sublet or lend the property or any
part thereof, nor permit the leased property or any part thereof to be used by
anyone other than the LESSEE or LESSEE's employees.
14. This instrument shall be binding upon and inure to the benefit of the
respective parties and their legal representatives, successors and assigns.
IN WITNESS WHEREOF, this instrument was executed by the parties as of the
date above written.
AFFHOLDER, INC. A-Y-K-E PARTNERSHIP
BY /s/ Thomas S. Rooney, Jr. BY /s/ Robert W. Affholder
--------------------------- --------------------------
Thomas S. Rooney, Jr., Robert W. Affholder,
President and Chief Executive Officer Partner
"LESSEE" "LESSOR"
</TEXT>
</DOCUMENT>
<DOCUMENT>
<TYPE>EX-10.19
<SEQUENCE>10
<FILENAME>c93062exv10w19.txt
<DESCRIPTION>EQUIPMENT LEASE
<TEXT>
<PAGE>
EXHIBIT 10.19
EQUIPMENT LEASE
THIS LEASE executed as of January 1, 2005, between A-Y-K-E Partnership, a
partnership (hereafter referred to as "LESSOR"), and Affholder, Inc., a Missouri
corporation (hereinafter referred to as "LESSEE").
1. LESSOR leases to LESSEE, and LESSEE leases from LESSOR, one (1) Lovat
121" Tunnel Boring Machine.
2. The term of this Lease shall begin January 1, 2005 and shall end
December 31, 2005. If the leased property is retained by LESSEE after December
31, 2005, without the consent of LESSOR, then the liquidated damages shall be
$15,000 plus $2,000 per day.
3. The leased property shall be used solely for the installation of
Bradshaw Interceptor, Section 8, Sacramento, CA.
4. LESSOR will be paid a lump sum of $200,000.
5. LESSEE may not make alterations, additions or improvements to the
leased property, without prior written notification to and approval by LESSOR.
All such additions to and improvements shall immediately become the property of
the LESSOR and subject to the terms of this Lease.
6. LESSEE, at its own cost and expense, shall keep the leased property in
good repair, condition and working order, and shall not subject the leased
property to careless or needlessly rough usage.
7. LESSOR shall at all times during business hours have the right to enter
upon the premises where the leased property may be located for the purpose of
inspecting it or observing its use.
8. The leased property shall be delivered to LESSEE at Sacramento, CA on
or before January 1, 2005. LESSEE shall inspect the leased property before the
commencement of the Lease. Unless LESSEE gives written notice to the LESSOR
within five (5) days after first test use of the leased property specifying any
defect in or other objection to the leased property, it shall be conclusively
presumed, as between LESSOR and LESSEE, that LESSEE has fully inspected the
leased property and found it to be in good condition and repair and in full
conformance with any and all express or implied representations, promises,
statements or warranties with respect to the merchantability, suitability, or
fitness for purpose of the leased property. If LESSEE rejects the leased
property for good cause, this Lease shall be null and void. All transportation
charges, including duties, from and to Sacramento, CA shall be the
responsibility of the LESSEE. All loading and unloading charges in Sacramento,
CA shall be the responsibility of the LESSEE.
9. LESSEE, at its own expense, shall keep the leased property insured for
casualty risks required by LESSOR (no underground exclusion) in the amount of
$500,000.00, with carriers acceptable to LESSOR and a loss payable endorsement
in favor of LESSOR, and LESSEE shall further maintain liability insurance in the
amount of $500,000,000.00 naming LESSOR as an additional insured, and all
policies shall
<PAGE>
provide that they may not be cancelled or altered without at least ten (10)
days' prior written notice to LESSOR. LESSOR shall maintain insurance coverage
of the leased equipment until it is received by LESSEE at point of delivery.
10. LESSEE shall pay all taxes and fees connected with this Lease or the
LESSEE's use of the leased property, including any use, personal property, or
sales taxes resulting therefrom.
11. LESSEE shall indemnify LESSOR against all claims, actions,
proceedings, costs, damages and liabilities, including attorney's fees, arising
out of, connected with this Lease, or resulting from the use of the leased
property.
12. This Lease shall be governed by and construed under the laws of the
State of Missouri.
13. Without the prior written consent of the LESSOR, LESSEE shall not
assign, transfer, pledge or hypothecate this Lease, the leased property, or any
part thereof, or any interest therein, nor sublet or lend the property or any
part thereof, nor permit the leased property or any part thereof to be used by
anyone other than the LESSEE or LESSEE's employees.
14. This instrument shall be binding upon and inure to the benefit of the
respective parties and their legal representatives, successors and assigns.
IN WITNESS WHEREOF, this instrument was executed by the parties as of the
date above written.
AFFHOLDER, INC. A-Y-K-E PARTNERSHIP
BY /s/ Thomas S. Rooney, Jr. BY /s/ Robert W. Affholder
-------------------------- ----------------------------
Thomas S. Rooney, Jr., Robert W. Affholder,
President and Chief Executive Officer Partner
"LESSEE" "LESSOR"
</TEXT>
</DOCUMENT>
<DOCUMENT>
<TYPE>EX-21
<SEQUENCE>11
<FILENAME>c93062exv21.txt
<DESCRIPTION>SUBSIDIARIES OF THE COMPANY
<TEXT>
<PAGE>
EXHIBIT 21
SUBSIDIARIES OF INSITUFORM TECHNOLOGIES, INC.
The following table sets forth certain information as of December 31, 2004
concerning the Company and its subsidiaries. Unless otherwise indicated, all
securities of such subsidiaries are owned by the Company:
<TABLE>
<CAPTION>
% of
Place of Voting
Name Incorporation Securities
- ---- ------------- ----------
<S> <C> <C>
Affholder, Inc. Missouri 100
INA Acquisition Corp. Delaware 100
Insituform Belgium NV Belgium 100 (2)
Insituform France, S.A. France 99.9 (1)
Insituform Holdings (UK) Limited United Kingdom 100 (1)
Insituform Linings Plc. United Kingdom 75 (2)
Insituform (Netherlands) B.V. Netherlands and Delaware 100 (1)
Insituform Rioolrenovatietechnieken B.V. Netherlands 100 (3)
Insituform Technologies Iberica SA Spain 100 (1)
Insituform Technologies Limited Alberta, Canada 100
Insituform Technologies Limited United Kingdom 100 (2)
Insituform Technologies USA, Inc. Delaware 100
Ka-Te Insituform AG Switzerland 100
Kinsel Industries, Inc. Texas 100
Video Injection S.A. France 99.6 (1)
</TABLE>
Other subsidiaries of the Company are not named in the table above. Such
unnamed subsidiaries considered in the aggregate or as a single subsidiary would
not constitute a significant subsidiary.
- ----------
(1) Securities are owned by INA Acquisition Corp.
(2) Securities are owned by Insituform Holdings (UK) Limited.
(3) Securities are owned by Insituform (Netherlands) B.V.
</TEXT>
</DOCUMENT>
<DOCUMENT>
<TYPE>EX-23
<SEQUENCE>12
<FILENAME>c93062exv23.txt
<DESCRIPTION>CONSENT OF PRICEWATERHOUSECOOPERS LLP
<TEXT>
<PAGE>
EXHIBIT 23
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We hereby consent to the incorporation by reference in the Registration
Statements on Form S-8 (Nos. 333-66714, 333-66712, 333-64688, 333-64690 and
33-63953) and Registration Statement on Form S-3 (No. 333-57932) of Insituform
Technologies, Inc. of our report dated March 16, 2005, relating to the financial
statements, management's assessment of the effectiveness of internal control
over financial reporting and the effectiveness of internal control over
financial reporting, which appears in this Annual Report on Form 10-K.
/s/ PricewaterhouseCoopers LLP
PricewaterhouseCoopers LLP
St. Louis, Missouri
March 16, 2005
</TEXT>
</DOCUMENT>
<DOCUMENT>
<TYPE>EX-31.1
<SEQUENCE>13
<FILENAME>c93062exv31w1.txt
<DESCRIPTION>302 CERTIFICATION OF THOMAS S. ROONEY
<TEXT>
<PAGE>
EXHIBIT 31.1
CERTIFICATIONS
I, Thomas S. Rooney, Jr., certify that:
1. I have reviewed this annual report on Form 10-K of Insituform
Technologies, Inc.;
2. Based on my knowledge, this report does not contain any untrue statement
of a material fact or omit to state a material fact necessary to make the
statements made, in light of the circumstances under which such statements
were made, not misleading with respect to the period covered by this
report;
3. Based on my knowledge, the financial statements, and other financial
information included in this report, fairly present in all material
respects the financial condition, results of operations and cash flows of
the registrant as of, and for, the periods presented in this report;
4. The registrant's other certifying officer(s) and I are responsible for
establishing and maintaining disclosure controls and procedures (as
defined in Exchange Act Rules 13a-15(e) and 15d-15(e) and internal control
over financial reporting (as defined in Exchange Act Rules 13a-15(f) and
15d-15(f)) for the registrant and have:
(a) Designed such disclosure controls and procedures, or caused such
disclosure controls and procedures to be designed under our supervision,
to ensure that material information relating to the registrant, including
its consolidated subsidiaries, is made known to us by others within those
entities, particularly during the period in which this report is being
prepared;
(b) Designed such internal control over financial reporting, or caused
such internal control over financial reporting to be designed under our
supervision, to provide reasonable assurance regarding the reliability of
financial reporting and the preparation of financial statements for
external purposes in accordance with generally accepted accounting
principles;
(c) Evaluated the effectiveness of the registrant's disclosure controls
and procedures and presented in this report our conclusions about the
effectiveness of the disclosure controls and procedures, as of the end of
the period covered by this report based on such evaluation; and
(d) Disclosed in this report any change in the registrant's internal
control over financial reporting that occurred during the registrant's
most recent fiscal quarter (the registrant's fourth fiscal quarter in the
case of an annual report) that has materially affected, or is reasonably
likely to materially affect, the registrant's internal control over
financial reporting; and
5. The registrant's other certifying officer(s) and I have disclosed, based
on our most recent evaluation of internal control over financial
reporting, to the registrant's auditors and the audit committee of the
registrant's board of directors (or persons performing the equivalent
functions):
(a) All significant deficiencies and material weaknesses in the design or
operation of internal control over financial reporting which are
reasonably likely to adversely affect the registrant's ability to record,
process, summarize and report financial information; and
(b) Any fraud, whether or not material, that involves management or other
employees who have a significant role in the registrant's internal control
over financial reporting.
Date: March 16, 2005
/s/ Thomas S. Rooney, Jr.
-------------------------------------
Thomas S. Rooney, Jr.
President and Chief Executive Officer
</TEXT>
</DOCUMENT>
<DOCUMENT>
<TYPE>EX-31.2
<SEQUENCE>14
<FILENAME>c93062exv31w2.txt
<DESCRIPTION>302 CERTIFICATION OF CHRISTIAN G. FARMAN
<TEXT>
<PAGE>
EXHIBIT 31.2
CERTIFICATIONS
I, Christian G. Farman, certify that:
1. I have reviewed this annual report on Form 10-K of Insituform
Technologies, Inc.;
2. Based on my knowledge, this report does not contain any untrue statement
of a material fact or omit to state a material fact necessary to make the
statements made, in light of the circumstances under which such statements
were made, not misleading with respect to the period covered by this
report;
3. Based on my knowledge, the financial statements, and other financial
information included in this report, fairly present in all material
respects the financial condition, results of operations and cash flows of
the registrant as of, and for, the periods presented in this report;
4. The registrant's other certifying officer(s) and I are responsible for
establishing and maintaining disclosure controls and procedures (as
defined in Exchange Act Rules 13a-15(e) and 15d-15(e) and internal control
over financial reporting (as defined in Exchange Act Rules 13a-15(f) and
15d-15(f)) for the registrant and have:
(a) Designed such disclosure controls and procedures, or caused such
disclosure controls and procedures to be designed under our supervision,
to ensure that material information relating to the registrant, including
its consolidated subsidiaries, is made known to us by others within those
entities, particularly during the period in which this report is being
prepared;
(b) Designed such internal control over financial reporting, or caused
such internal control over financial reporting to be designed under our
supervision, to provide reasonable assurance regarding the reliability of
financial reporting and the preparation of financial statements for
external purposes in accordance with generally accepted accounting
principles;
(c) Evaluated the effectiveness of the registrant's disclosure controls
and procedures and presented in this report our conclusions about the
effectiveness of the disclosure controls and procedures, as of the end of
the period covered by this report based on such evaluation; and
(d) Disclosed in this report any change in the registrant's internal
control over financial reporting that occurred during the registrant's
most recent fiscal quarter (the registrant's fourth fiscal quarter in the
case of an annual report) that has materially affected, or is reasonably
likely to materially affect, the registrant's internal control over
financial reporting; and
5. The registrant's other certifying officer(s) and I have disclosed, based
on our most recent evaluation of internal control over financial
reporting, to the registrant's auditors and the audit committee of the
registrant's board of directors (or persons performing the equivalent
functions):
(a) All significant deficiencies and material weaknesses in the design or
operation of internal control over financial reporting which are
reasonably likely to adversely affect the registrant's ability to record,
process, summarize and report financial information; and
(b) Any fraud, whether or not material, that involves management or other
employees who have a significant role in the registrant's internal control
over financial reporting.
Date: March 16, 2005
/s/ Christian G. Farman
--------------------------
Christian G. Farman
Senior Vice President and Chief
Financial Officer
</TEXT>
</DOCUMENT>
<DOCUMENT>
<TYPE>EX-32.1
<SEQUENCE>15
<FILENAME>c93062exv32w1.txt
<DESCRIPTION>906 CERTIFICATION OF THOMAS S. ROONEY
<TEXT>
<PAGE>
EXHIBIT 32.1
CERTIFICATION PURSUANT TO
18 U.S.C. SECTION 1350,
AS ADOPTED PURSUANT TO
SECTION 906 OF THE SARBANES-OXLEY ACT OF 2002
In connection with the annual report on Form 10-K of Insituform Technologies,
Inc. (the "COMPANY") for the year ended December 31, 2004 as filed with the
Securities and Exchange Commission on the date hereof (the "FORM 10-K"), I,
Thomas S. Rooney, Jr., President and Chief Executive Officer of the Company,
hereby certify as of the date hereof, pursuant to 18 U.S.C. Section 1350, as
adopted pursuant to Section 906 of the Sarbanes - Oxley Act of 2002, that:
(1) the Form 10-K fully complies with the requirements of section
13(a) or 15(d) of the Securities Exchange Act of 1934; and
(2) information contained in the Form 10-K fairly presents, in all
material respects, the financial condition and results of
operations of the Company.
Dated: March 16, 2005
/s/ Thomas S. Rooney, Jr.
-------------------------------------
Thomas S. Rooney, Jr.
President and Chief Executive Officer
</TEXT>
</DOCUMENT>
<DOCUMENT>
<TYPE>EX-32.2
<SEQUENCE>16
<FILENAME>c93062exv32w2.txt
<DESCRIPTION>906 CERTIFICATION OF CHRISTIAN G. FARMAN
<TEXT>
<PAGE>
EXHIBIT 32.2
CERTIFICATION PURSUANT TO
18 U.S.C. SECTION 1350,
AS ADOPTED PURSUANT TO
SECTION 906 OF THE SARBANES-OXLEY ACT OF 2002
In connection with the annual report on Form 10-K of Insituform Technologies,
Inc. (the "COMPANY") for the year ended December 31, 2004 as filed with the
Securities and Exchange Commission on the date hereof (the "FORM 10-K"), I,
Christian G. Farman, Senior Vice President and Chief Financial Officer of the
Company, hereby certify as of the date hereof, pursuant to 18 U.S.C. Section
1350, as adopted pursuant to Section 906 of the Sarbanes - Oxley Act of 2002,
that:
(1) the Form 10-K fully complies with the requirements of section
13(a) or 15(d) of the Securities Exchange Act of 1934; and
(2) information contained in the Form 10-K fairly presents, in all
material respects, the financial condition and results of
operations of the Company.
Dated: March 16, 2005
/s/ Christian G. Farman
-------------------------------------------------
Christian G. Farman
Senior Vice President and Chief Financial Officer
</TEXT>
</DOCUMENT>
</SEC-DOCUMENT>
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