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EXHIBIT 2.4
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AMENDED AND RESTATED
ARRANGEMENT AGREEMENT
BY AND BETWEEN
TARO INDUSTRIES LIMITED,
AND
EVI, INC.
AND
756745 ALBERTA LTD.
AND
759572 ALBERTA LTD.
DECEMBER 5, 1997
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TABLE OF CONTENTS
ARTICLE I
INTERPRETATION
1.1 DEFINITIONS. . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
1.2 EXHIBIT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
ARTICLE II
THE ARRANGEMENT
2.1 TARO OPTIONS. . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
2.2 AMALGAMATION. . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
2.3 COURT APPROVAL. . . . . . . . . . . . . . . . . . . . . . . . . . . 6
2.4 CLOSING. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
2.5 CONSUMMATION OF THE ARRANGEMENT. . . . . . . . . . . . . . . . . . 6
2.6 EFFECTS OF THE ARRANGEMENT. . . . . . . . . . . . . . . . . . . . . 6
2.7 BYLAWS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
2.8 DIRECTORS AND OFFICERS. . . . . . . . . . . . . . . . . . . . . . . 6
2.9 CONVERSION OF SECURITIES . . . . . . . . . . . . . . . . . . . . . 6
2.10 TAKING OF NECESSARY ACTION; FURTHER ACTION . . . . . . . . . . . . 7
ARTICLE III
REPRESENTATIONS AND WARRANTIES
3.1 REPRESENTATIONS AND WARRANTIES OF EVI AND TAL. . . . . . . . . . . 7
(a) Organization and Compliance with Law. . . . . . . . . . . . 7
(b) Capitalization . . . . . . . . . . . . . . . . . . . . . . 8
(c) Authorization and Validity of Agreement. . . . . . . . . 8
(d) No Approvals or Notices Required; No Conflict . . . . . . . 8
(e) Voting Requirements. . . . . . . . . . . . . . . . . . . . 9
(f) Brokers . . . . . . . . . . . . . . . . . . . . . . . . . . 9
(g) Information Supplied . . . . . . . . . . . . . . . . . . . 9
(h) Authorization for EVI Common Stock . . . . . . . . . . . . 9
(i) SEC Documents . . . . . . . . . . . . . . . . . . . . . . . 9
(j) Conduct of Business in the Ordinary Course; Absence of
Certain Changes and Events. . . . . . . . . . . . . . . . . 9
3.2 REPRESENTATIONS AND WARRANTIES OF TARO. . . . . . . . . . . . . . . 9
(a) Organization. . . . . . . . . . . . . . . . . . . . . . . . 9
(b) Capitalization. . . . . . . . . . . . . . . . . . . . . . . 10
(c) Authorization and Validity of Agreement. . . . . . . . . . 11
(d) No Approvals or Notices Required; No Conflict
with Instruments to which Taro is a Party . . . . . . . . . 11
(e) Commission Filings; Financial Statements. . . . . . . . . . 12
(f) Conduct of Business in the Ordinary Course; Absence
of Certain Changes and Events . . . . . . . . . . . . . . . 12
(g) Litigation . . . . . . . . . . . . . . . . . . . . . . . . 13
(h) Disclosure. . . . . . . . . . . . . . . . . . . . . . . . . 13
(i) Employee Benefit Plans. . . . . . . . . . . . . . . . . . . 13
(j) Taxes. . . . . . . . . . . . . . . . . . . . . . . . . . . 14
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(k) Environmental Matters. . . . . . . . . . . . . . . . . . . 15
(l) Severance Payments. . . . . . . . . . . . . . . . . . . . . 16
(m) Shareholder and Similar Agreements . . . . . . . . . . . . 16
(n) Brokers . . . . . . . . . . . . . . . . . . . . . . . . . . 16
(o) Compliance with Laws . . . . . . . . . . . . . . . . . . . 16
(p) Contracts . . . . . . . . . . . . . . . . . . . . . . . . . 17
(q) Title to Property . . . . . . . . . . . . . . . . . . . . . 18
(r) Intellectual Property . . . . . . . . . . . . . . . . . . . 18
(s) Insurance Policies . . . . . . . . . . . . . . . . . . . . 18
(t) Loans. . . . . . . . . . . . . . . . . . . . . . . . . . . 19
(u) No Fraudulent Transfer . . . . . . . . . . . . . . . . . . 19
(v) Information Supplied . . . . . . . . . . . . . . . . . . . 19
(w) Sales into the United States . . . . . . . . . . . . . . . 19
ARTICLE IV
COVENANTS OF TARO
4.1 CONDUCT OF BUSINESS BY TARO PENDING THE ARRANGEMENT. . . . . . . . 20
4.2 SUBSIDIARY DISSOLUTION . . . . . . . . . . . . . . . . . . . . . . 22
ARTICLE V
ADDITIONAL AGREEMENTS
5.1 COOPERATION; CONSENTS AND APPROVALS . . . . . . . . . . . . . . . . 22
5.2 DEPOSITARY . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
5.3 FILINGS; CONSENTS; REASONABLE EFFORTS. . . . . . . . . . . . . . . 23
5.4 NOTIFICATION OF CERTAIN MATTERS. . . . . . . . . . . . . . . . . . 23
5.5 EXPENSES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
5.6 TARO OPTION PLAN. . . . . . . . . . . . . . . . . . . . . . . . . . 23
5.7 NO SOLICITATIONS . . . . . . . . . . . . . . . . . . . . . . . . . 23
5.8 BETTER OFFERS . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
5.9 MUTUAL AGREEMENTS . . . . . . . . . . . . . . . . . . . . . . . . . 24
5.10 DEPOSIT OF EVI STOCK . . . . . . . . . . . . . . . . . . . . . . . 25
ARTICLE VI
CONDITIONS
6.1 CONDITIONS TO OBLIGATION OF EACH PARTY TO EFFECT THE ARRANGEMENT. . 25
6.2 ADDITIONAL CONDITIONS TO OBLIGATIONS OF EVI AND TAL. . . . . . . . 25
6.3 ADDITIONAL CONDITIONS TO OBLIGATIONS OF TARO. . . . . . . . . . . . 26
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ARTICLE VII
MISCELLANEOUS
7.1 TERMINATION. . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
7.2 EFFECT OF TERMINATION . . . . . . . . . . . . . . . . . . . . . . . 29
7.3 FEE AND EXPENSE REIMBURSEMENTS . . . . . . . . . . . . . . . . . . 29
7.4 WAIVER AND AMENDMENT . . . . . . . . . . . . . . . . . . . . . . . 29
7.5 NONSURVIVAL OF REPRESENTATIONS AND WARRANTIES. . . . . . . . . . . 29
7.6 PUBLIC STATEMENTS. . . . . . . . . . . . . . . . . . . . . . . . . 30
7.7 ASSIGNMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
7.8 NOTICES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
7.9 GOVERNING LAW . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
7.10 SEVERABILITY. . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
7.11 COUNTERPARTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
7.12 ENTIRE AGREEMENT: THIRD PARTY BENEFICIARIES. . . . . . . . . . . . 31
7.13 DISCLOSURE LETTERS. . . . . . . . . . . . . . . . . . . . . . . . . 31
7.14 CURRENCY. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
7.15 NUMBER AND GENDER. . . . . . . . . . . . . . . . . . . . . . . . . 32
7.16 DIVISIONS, HEADINGS, ETC.. . . . . . . . . . . . . . . . . . . . . 32
7.17 DATE OF ANY ACTION. . . . . . . . . . . . . . . . . . . . . . . . . 32
LIST OF EXHIBITS
Exhibit 1 -- Plan of Arrangement
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AMENDED AND RESTATED ARRANGEMENT AGREEMENT
THIS AMENDED AND RESTATED ARRANGEMENT AGREEMENT dated as of November
19, 1997 and amended and restated as of December 5, 1997 (this "Agreement"), is
made and entered into by and between EVI, INC., a Delaware corporation ("EVI"),
756745 ALBERTA LTD., ("TAL") an Alberta corporation and wholly owned subsidiary
of EVI, 759572 ALBERTA LTD. ("759572"), an Alberta corporation, and TARO
INDUSTRIES LIMITED, an Alberta corporation ("Taro").
WHEREAS, subject to and in accordance with the terms and conditions of
this Agreement, the respective Boards of Directors of EVI, TAL, 759572 and
Taro, and EVI as sole shareholder of TAL, have approved, as applicable, (i) the
change to the Taro Option Plan (as defined herein), whereby upon the exercise
of Taro Options (as defined herein), shares of EVI Common Stock (as defined
herein) will be issued in lieu of Taro Common Shares (as defined herein), (ii)
the exchange of each issued and outstanding Taro Common Share held by
Non-Residents of Canada (as defined herein) for 0.123 of a share of EVI Common
Stock, (iii) the amalgamation of TAL with 759572 and Taro, whereby each issued
and outstanding Taro Common Share held other than by 759572 and EVI will be
converted into one New Taro Class B Common Share (as defined herein), the
issued and outstanding 759572 Common Shares (as defined herein) will be
converted into that number of New Taro Class B Common Shares equal to the
number of Taro Common Shares held by 759572, each issued and outstanding Taro
Common Share held by EVI will be converted into one New Taro Class A Common
Share (as defined herein) and each issued and outstanding TAL Common Share will
be converted into one New Taro Class A Common Share (as defined herein) and
(iv) the exchange of each issued and outstanding New Taro Class B Common Share
for 0.123 of a share of EVI Common Stock (as defined herein);
WHEREAS, in furtherance of the Arrangement, the Board of Directors of
Taro has agreed to submit the Plan of Arrangement in the form of Exhibit 1
hereto and the other transactions contemplated by this Agreement to its
shareholders and the Court (as defined herein) for approval; and
WHEREAS, the parties hereto desire to set forth certain
representations, warranties and covenants made by each to the other as an
inducement to the consummation of the Arrangement;
NOW, THEREFORE, in consideration of the premises and of the mutual
representations, warranties and covenants herein contained, the parties hereto
hereby agree as follows:
ARTICLE I
INTERPRETATION
1.1 DEFINITIONS. In this Agreement, unless the context otherwise
requires, the following terms shall have the respective meanings set forth
below:
"ABCA" means the Business Corporations Act (Alberta), S.A. 1981, C. B-15, as
amended from time to time, including the regulations promulgated thereunder;
"ACQUISITION PROPOSAL" has the meaning set forth in Section 5.7;
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"AFFILIATE" with respect to any Person, means any Person that directly or
indirectly controls, is controlled by or is under common control with such
Person;
"ARRANGEMENT" means the arrangement under section 186 of the ABCA on the terms
and subject to the conditions set forth in the Plan of Arrangement;
"ARTICLES OF ARRANGEMENT" means the articles of arrangement in respect of the
Arrangement required by the ABCA to be sent to the Registrar after the Final
Order is made;
"BENEFIT PROGRAM OR AGREEMENT" means any stock option plan, collective
bargaining agreement, bonus plan or arrangement, incentive award plan or
arrangement, pension plan, vacation policy, severance pay plan, policy or
agreement, deferred compensation agreement or arrangement, executive
compensation or supplemental income arrangement, consulting agreement,
employment agreement and each other employee benefit plan, agreement,
arrangement, program, practice or understanding to which Taro or any Taro
Subsidiary is a party or has any obligation;
"BUSINESS DAY" means, with respect to any action to be taken, any day other
than Saturday, Sunday or a statutory holiday in the place where such action is
to be taken;
"CERTIFICATE" means the certificate of amalgamation giving effect to the
amalgamation effected by the Arrangement, issued pursuant to subsection 186(11)
of the ABCA after the Articles of Arrangement have been filed;
"CLOSING" means the closing of the transactions contemplated by this Agreement
on the Effective Date;
"COMMISSIONS" means the Alberta and Ontario Securities Commissions;
"COURT" means the Court of Queen's Bench of Alberta;
"DEMANDS" means any claims, actions, suits, investigations, inquiries or
proceedings;
"DEPOSITARY" means Montreal Trust Company of Canada at its offices located at
600, 530 - 8th Avenue S.W., Calgary, Alberta T2P 358;
"EFFECTIVE DATE" means the date shown on the Certificate issued by the
Registrar, or if no certificate is required to be issued, on the date the
Articles of Arrangement are filed with the Registrar;
"ENVIRONMENTAL LAWS" means any and all laws, statutes, ordinances, rules,
regulations, orders or determinations of any Governmental Entity pertaining to
health or the environment currently in effect in any and all jurisdictions in
which the party in question and its subsidiaries own property or conduct
business;
"EVI ARTICLES" means EVI's Restated Certificate of Incorporation, as amended;
"EVI COMMON STOCK" means the common stock, $1.00 par value, of EVI;
"EVI PREFERRED STOCK" means the preferred stock, $1.00 par value, of EVI;
"FINAL ORDER" means the final order of the Court approving the Arrangement to
be applied for following the Taro Shareholders Meeting pursuant to section
186(9) of the ABCA;
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"GOVERNMENTAL ENTITY" means any court, administrative agency or commission or
other governmental authority or agency, domestic or foreign, including local
authorities, and any arbitration board or panel;
"GST" means any and all taxes payable under Part IX of the Excise Tax Act
(Canada) as amended from time to time and any regulations promulgated
thereunder;
"INTERIM ORDER" means the interim order of the Court made in connection with
the approval of the Arrangement;
"LIEN" means any lien, mortgage, pledge, security interest, restriction on
transfer, option, charge, right of any third Person or any other encumbrance of
any nature;
"NEW TARO" means Taro Industries Limited, the corporation that will result from
the amalgamation of TAL, 759572 and Taro pursuant to the Plan of Arrangement;
"NEW TARO CLASS A COMMON SHARES" means the Class A common shares in the capital
of New Taro;
"NEW TARO CLASS B COMMON SHARES" means the Class B common shares in the capital
of New Taro;
"NON-RESIDENTS OF CANADA" means Persons who are non-residents of Canada for
purposes of the Income Tax Act (Canada);
"OTHER AGREEMENTS" means, other than this Agreement, the agreements and
instruments contemplated to be executed and delivered in connection with the
Arrangement;
"PERMITTED LIENS" means (A) Liens for taxes not due and payable and (B)
inchoate mechanics', warehousemen's and other statutory Liens incurred in the
ordinary course of business;
"PERSON" means an individual, corporation, limited liability company,
partnership, Governmental Entity or any other entity;
"PLAN OF ARRANGEMENT" means the plan of arrangement, which is attached as
Exhibit 1 and any amendment or supplement thereto made in accordance with
Section 7.4;
"PROPRIETARY RIGHTS" means all patents, inventions, shop rights, know how,
trade secrets, designs, plans, manuals, computer software, specifications,
confidentiality agreements, confidential information and other proprietary
technology and similar information; all registered and unregistered trademarks,
service marks, logos, names, trade names and all other trademark rights; all
registered and unregistered copyrights; and all registrations for, and
applications for registration of, any of the foregoing, in each case that are
used in the conduct of the business of Taro or any Taro Subsidiary;
"PROXY CIRCULAR" means the proxy circular, as amended or supplemented from time
to time, relating to the approval by the Taro Common Shareholders at the Taro
Shareholders Meeting of the Arrangement;
"RECOMMENDATION" has the meaning set forth in Section 5.1(e);
"REGISTRAR" means the Registrar of Corporations appointed pursuant to section
253 of the ABCA;
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"SEC" means the United States Securities and Exchange Commission;
"SEC DOCUMENTS" means EVI's Annual Report on Form 10-K for the year ended
December 31, 1996, its Quarterly Reports on Form 10-Q for the quarters ended
March 31, 1997, June 30, 1997 and September 30, 1997, its Current Reports on
Form 8-K dated January 23, 1997, March 17,1997, April 25, 1997, May 14, 1997,
August 26, 1997, October 21, 1997, October 27, 1997, November 5, 1997, November
12, 1997, and November 18, 1997, its Current Report on Form 8-K/A dated October
22, 1997, and its proxy statement with respect to the Annual Meeting of
Stockholders of EVI held on May 6, 1997;
"SECURITIES ACT" means the United States Securities Act of 1933, as amended;
"759572 COMMON SHARE" means the common share in the capital of 759572;
"TAL ARTICLES" means TAL's Articles of Incorporation;
"TAL COMMON SHAREHOLDERS" means the holders of the TAL Common Shares;
"TAL COMMON SHARES" means the Class A shares in the capital of TAL;
"TAL DISCLOSURE LETTER" means the disclosure letter delivered by TAL to Taro on
the date hereof;
"TAL MAE" means (i) a single event, occurrence or fact that (together with all
other events, occurrences and facts) would have, or might reasonably be
expected to have, a material adverse effect on the assets, business,
operations, prospects or financial condition of EVI or (ii) an item that
prevents or adversely affects the ability of TAL or EVI to perform and comply
with its obligations under this Agreement or any other agreement to be executed
and delivered in connection with the transactions contemplated hereby or
thereby;
"TARO ARTICLES" means Taro's Articles of Incorporation;
"TARO CERTIFICATE" means a certificate that immediately prior to the Effective
Date represented outstanding Taro Common Shares;
"TARO COMMISSION FILINGS" means all reports and other filings (including all
notes, exhibits and schedules thereto and documents incorporated by reference
therein) filed by Taro with the TSE or the Commissions since December 31, 1993,
through the date of this Agreement, together with any amendments thereto;
"TARO AFFILIATES" has the meaning set forth in Section 6.2(h);
"TARO COMMON SHAREHOLDERS" means the holders of the Taro Common Shares;
"TARO COMMON SHARES" means the common shares in the capital of Taro;
"TARO DISCLOSURE LETTER" means the disclosure letter delivered by Taro to TAL
on the date hereof;
"TARO MAE" means (i) a single event, occurrence or fact that (together with all
other events, occurrences and facts) would have, or might reasonably be
expected to have, a material adverse effect on the assets, business,
operations, prospects or financial condition of Taro or 759572 or (ii) an item
that prevents or adversely affects the ability of Taro or 759572 to perform and
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comply with its obligations under this Agreement or any other agreement to be
executed and delivered in connection with the transactions contemplated hereby
or thereby;
"TARO OPTIONS" means the outstanding options to purchase an aggregate of
295,968 Taro Common Shares under the Taro Option Plan;
"TARO OPTION PLAN" means the Taro Industries Limited Stock Option Plan;
"TARO PAYMENT" has the meaning set forth in Section 7.3(a);
"TARO PERMITS" has the meaning set forth in Section 3.2(o);
"TARO SHAREHOLDERS MEETING" means the special meeting of the shareholders of
Taro (including any adjournment thereof) that is to be convened as provided by
the Interim Order to consider, and if deemed advisable, approve the
Arrangement;
"TARO SUBSIDIARIES" means all corporations, partnerships, limited liability
companies and other entities of which Taro owns directly or indirectly, an
equity interest; and
"TSE" means The Toronto Stock Exchange.
1.2 EXHIBIT. The following Exhibit is annexed to and incorporated
into this Agreement by reference and is deemed to be a part hereof:
Exhibit 1 -- Plan of Arrangement
ARTICLE II
THE ARRANGEMENT
2.1 TARO OPTIONS. The Taro Option Plan and each outstanding Taro
Option (which has not been exercised or otherwise terminated or canceled prior
to the Effective Date) shall be deemed to be modified to reflect that upon
exercise of such outstanding Taro Option, shares of EVI Common Stock will be
issued in lieu of Taro Common Shares. Each Taro Option representing the right
to purchase Taro Common Shares shall be modified to represent the right to
purchase at the exercise price of such Taro Option 0.123 of a share of EVI
Common Stock for each Taro Common Share subject to the Taro Option. No
fractional shares of EVI Common Stock shall be issued in connection with any
such exercise. To the extent that the exercise of a Taro Option would result
in a fractional number of shares of EVI Common Stock being issued to the holder
of such Taro Option, the holder shall receive in lieu of such fractional share
an amount in United States dollars equal to the value of such fractional share
based on the closing price of the EVI Common Stock on the New York Stock
Exchange on the date notice of such exercise is received by EVI.
2.2 AMALGAMATION. Subject to and in accordance with the terms and
conditions of this Agreement and in accordance with the ABCA, at the Effective
Date, TAL shall, pursuant to the Arrangement, be amalgamated with Taro and
759572. As a result of the amalgamation, the separate corporate existence of
TAL, 759572 and Taro shall cease and New Taro shall be the surviving
corporation, and all the properties, rights, privileges, powers and franchises
of TAL, 759572 and Taro shall vest in New Taro, without any transfer or
assignment having occurred, and all the liabilities, debts and duties of TAL,
759572 and Taro shall attach to New Taro, all in accordance with the ABCA.
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2.3 COURT APPROVAL. As soon as reasonably practicable, Taro and
TAL shall apply to the Court pursuant to section 186 of the ABCA for an order
approving the Arrangement and in connection with such application shall:
(a) forthwith file, proceed with and diligently prosecute
an application for an Interim Order under section 186(4) of the ABCA
providing for, among other things, the calling and holding of the Taro
Shareholders Meeting as provided for in Section 5.1(a) for the purpose
of considering and, if deemed advisable, approving the Arrangement;
and
(b) subject to obtaining such approval of the Taro Common
Shareholders as may be directed by the Court in the Interim Order,
take the steps necessary to submit the Arrangement to the Court and
apply for the Final Order, and, subject to the fulfillment of the
conditions set forth in Article VI, shall deliver to the Registrar
Articles of Arrangement and such other documents as may be required to
give effect to the Arrangement.
2.4 CLOSING. The Closing shall take place at the offices of
Bennett Jones Verchere, 4500 Bankers Hall East, 855 -- 2nd Street S.W.,
Calgary, Alberta, Canada, as soon as practicable after the satisfaction or
waiver of the conditions set forth in Article VI but not later than three
Business Days after the Final Order is granted or at such other time and place
and on such other date as EVI, TAL and Taro shall agree; provided that the
closing conditions set forth in Article VI shall have been satisfied or waived
at or prior to such time.
2.5 CONSUMMATION OF THE ARRANGEMENT. At the Closing, the parties
hereto will cause the Arrangement to be consummated by filing with the
Registrar the Articles of Arrangement in such form as required by, and executed
in accordance with, the relevant provisions of the ABCA and the Final Order.
2.6 EFFECTS OF THE ARRANGEMENT. The Arrangement shall have the
effects set forth in the applicable provisions of the ABCA and the Final Order.
2.7 BYLAWS. The bylaws of TAL, as in effect immediately prior to
the Effective Date, shall be the bylaws of New Taro and thereafter shall
continue to be its bylaws until amended as provided therein or under the ABCA.
2.8 DIRECTORS AND OFFICERS. The directors of TAL immediately
prior to the Effective Date shall be the directors of New Taro at and after the
Effective Date, each to hold office in accordance with the Articles of
Incorporation and bylaws of New Taro, and the officers of TAL immediately prior
to the Effective Date shall be the officers of New Taro at and after the
Effective Date, in each case until the earlier of their resignation or removal
or their respective successors are duly elected or appointed and qualified.
2.9 CONVERSION OF SECURITIES. Subject to the terms and conditions
of this Agreement, at the Effective Date, by virtue of the Arrangement and
without any further action on the part of Taro, TAL, 759572 or their
shareholders:
(a) Each Taro Common Share issued and outstanding
immediately prior to the Effective Date and held by Non-Residents of
Canada shall be exchanged with EVI for 0.123 of a share of EVI Common
Stock.
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(b) Each TAL Common Share issued and outstanding
immediately prior to the Effective Date shall be converted into one
fully paid and nonassessable New Taro Class A Common Share.
(c) Each Taro Common Share owned immediately prior to the
Effective Date by EVI or any direct or indirect wholly-owned
subsidiary of EVI shall be converted into one fully paid and
nonassessable New Taro Class A Common Share.
(d) Each Taro Common Share issued and outstanding
immediately prior to the Effective Date and held by Persons other than
Non-Residents of Canada, EVI or any direct or indirect wholly-owned
subsidiary of EVI, TAL or 759572 shall be converted into one New Taro
Class B Common Share. No other consideration will be paid to Taro or
its shareholders.
(e) The 759572 Common Share issued and outstanding
immediately prior to the Effective Date shall be converted into that
aggregate number of fully paid and nonassessable New Taro Class B
Common Shares equal to the number of Taro Common Shares owned
immediately prior to the Effective Date by 759572.
(f) Each Taro Common Share owned immediately prior to the
Effective Date by TAL and 759572 shall be cancelled and extinguished
without any conversion thereof and no payment or other consideration
shall be made or paid with respect thereto.
(g) Each New Taro Class B Common Share issued and
outstanding upon the amalgamation of TAL, Taro and 759572 shall be
immediately exchanged with EVI for 0.123 of a share of EVI Common
Stock.
2.10 TAKING OF NECESSARY ACTION; FURTHER ACTION. The parties
hereto shall take all such reasonable and lawful action as may be necessary or
appropriate in order to effectuate the Arrangement as promptly as possible.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
3.1 REPRESENTATIONS AND WARRANTIES OF EVI AND TAL. EVI and TAL
hereby represent and warrant to Taro that:
(a) Organization and Compliance with Law. Each of EVI
and TAL is a corporation duly incorporated, validly existing and in
good standing under the laws of the State of Delaware and the Province
of Alberta, respectively. Each of EVI and TAL has all requisite
corporate power and corporate authority and all necessary governmental
authorizations to own, lease and operate all of its properties and
assets and to carry on its business as now being conducted, except
where the failure to have such governmental authority would not have a
TAL MAE. Each of EVI and TAL is duly qualified as a foreign
corporation to do business, and is in good standing, in each
jurisdiction in which the property owned, leased or operated by it or
the nature of the business conducted by it makes such qualification
necessary, except in such jurisdictions where the failure to be duly
qualified does not and would not have a TAL MAE. TAL is in compliance
with all applicable laws, judgments, orders, rules and regulations,
domestic and foreign, except where failure to be in such compliance
would not have a TAL MAE. TAL has heretofore delivered to Taro true
and complete copies of the EVI
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Articles and the TAL Articles and their respective bylaws as in
existence on the date hereof.
(b) Capitalization.
(i) The authorized capital stock of EVI consists
of 80,000,000 shares of EVI Common Stock and 3,000,000 shares
of EVI Preferred Stock. As of November 11, 1997, there were
47,103,210 shares of EVI Common Stock issued and outstanding.
As of November 11, 1997, 2,506,400 shares of EVI Common Stock
were reserved for issuance pursuant to EVI's employee and
director benefit plans and arrangements, of which 1,376,400
shares of EVI Common Stock were reserved for issuance upon
exercise of outstanding options. At November 11, 1997, there
were no shares of EVI Preferred Stock issued or outstanding.
No holder of EVI Common Stock is entitled to preemptive rights
under Delaware law or the EVI Articles.
(ii) The authorized capital stock of TAL consists
of an unlimited number of TAL Common Shares. As of the date
hereof, there were 100 TAL Common Shares issued and
outstanding, all of which are validly issued, fully paid and
nonassessable and are owned by EVI.
(c) Authorization and Validity of Agreement. The
execution and delivery by EVI and TAL of this Agreement and the
consummation by EVI and TAL of the transactions contemplated hereby
have been duly authorized by all necessary corporate action. This
Agreement has been duly executed and delivered by EVI and TAL and is
the valid and binding obligation of EVI and TAL, enforceable against
EVI and TAL in accordance with its terms, except as enforceability may
be limited by applicable bankruptcy, insolvency, reorganization,
moratorium or similar laws from time to time in effect that affect
creditors' rights generally and by legal and equitable limitations on
the availability of specific remedies.
(d) No Approvals or Notices Required; No Conflict .
Neither the execution and delivery of this Agreement nor the
performance by EVI or TAL of its obligations hereunder, nor the
consummation of the transactions contemplated hereby by EVI and TAL,
will (i) conflict with the EVI Articles, the bylaws of EVI, the TAL
Articles or the bylaws of TAL; (ii) assuming satisfaction of the
requirements set forth in clause (iii) below, violate any provision of
law applicable to EVI or TAL; (iii) except for (A) issuance of the
Interim Order and the Final Order by the Court, (B) requirements of
Canadian, United States, provincial or state securities laws, (C)
requirements of notice filings in such foreign jurisdictions as may be
applicable and (D) the filing of Articles of Arrangement and Articles
of Amalgamation by TAL in accordance with the ABCA, require any
consent or approval of, or filing with or notice to, any public body
or authority, domestic or foreign, under any provision of law
applicable to EVI or TAL; or (iv) require any consent, approval or
notice under, or violate, breach, be in conflict with or constitute a
default (or an event that, with notice or lapse of time or both, would
constitute a default) under, or permit the termination of any
provision of, or result in the creation or imposition of any Lien upon
any properties, assets or business of EVI or TAL under, any note,
bond, indenture, mortgage, deed of trust, lease, franchise, permit,
authorization, license, contract, instrument or other agreement or
commitment or any order, judgment or decree to which EVI or TAL is a
party or by which EVI or TAL or any of their assets or properties is
bound or encumbered, except (A) those that have already been given,
obtained or filed and (B) those that, in the aggregate, would not have
a TAL MAE.
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(e) Voting Requirements. No vote of the holders of
shares of the capital stock of EVI is necessary to approve this
Agreement and the Arrangement.
(f) Brokers. Except for fees and expenses payable by EVI
to SBC Warburg Dillon Read, no broker, investment banker, or other
Person acting on behalf of EVI or TAL is or will be entitled to any
broker's, finder's or other similar fee or commission in connection
with the transactions contemplated by this Agreement.
(g) Information Supplied. The information supplied or to
be supplied by TAL and EVI for inclusion or incorporation by reference
in the Proxy Circular shall, at the date the Proxy Circular is first
mailed to Taro Common Shareholders and at the time of the Taro
Shareholders Meeting, be true and complete in all material respects
and shall not contain any misrepresentation (as defined in the
Securities Act (Alberta)).
(h) Authorization for EVI Common Stock. EVI has taken
all necessary action to permit it to issue the number of shares of EVI
Common Stock required to be issued pursuant to the terms of the Plan
of Arrangement and this Agreement. The shares of EVI Common Stock
issued pursuant to the terms of the Plan of Arrangement and this
Agreement will, when issued, be validly issued, fully paid and
nonassessable and not subject to preemptive rights.
(i) SEC Documents. EVI has provided to Taro the SEC
Documents. As of their respective dates, the SEC Documents complied
in all material respects with the requirements of the United States
Securities Exchange Act of 1934, as amended, and the rules and
regulations of the SEC promulgated thereunder applicable to such SEC
Documents, and none of the SEC Documents contained any untrue
statement of a material fact or omitted to state a material fact
required to be stated therein or necessary in order to make the
statements therein, in light of the circumstances under which they
were made, not misleading. The consolidated financial statements of
EVI included in the SEC Documents comply as to form in all material
respects with applicable accounting requirements and the published
rules and regulations of the SEC with respect thereto, have been
prepared in accordance with United States generally accepted
accounting principles applied on a consistent basis during the periods
involved (except as may be indicated in the notes thereto) and fairly
present the consolidated financial position of EVI and its
consolidated subsidiaries as of the dates thereof and the consolidated
results of their operations and cash flows for the periods then ended.
Except as set forth in the SEC Documents, no event has occurred since
the date of filing of such that would constitute a TAL MAE.
(j) Conduct of Business in the Ordinary Course; Absence
of Certain Changes and Events. Since December 31, 1996, except as
contemplated by this Agreement or as disclosed in the SEC Documents,
there has not been: (i) a TAL MAE or (ii) any other condition, event
or development that reasonably may be expected to result in a TAL MAE.
3.2 REPRESENTATIONS AND WARRANTIES OF TARO. Taro hereby
represents and warrants to TAL that:
(a) Organization. Taro is a corporation duly
incorporated, validly existing and in good standing under the laws of
the Province of Alberta. Taro has all requisite corporate power and
corporate authority and all necessary governmental authorizations to
own, lease and operate all of its properties and assets and to carry
on its business as now being conducted, except where the failure to
have such governmental authority
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would not have a Taro MAE. Except as set forth in Section 3.2(a) of
the Taro Disclosure Letter, Taro is duly qualified as a foreign
corporation to do business, and is in good standing, in each
jurisdiction in which the property owned, leased or operated by it or
the nature of the business conducted by it makes such qualification
necessary, except in such jurisdictions where the failure to be duly
qualified does not and would not have a Taro MAE. Taro is in
compliance with all applicable laws, judgments, orders, rules and
regulations, domestic and foreign, except where failure to be in such
compliance would not have a Taro MAE. Taro has heretofore delivered
to TAL true and complete copies of the Taro Articles and the bylaws of
Taro as in existence on the date hereof.
(b) Capitalization.
(i) The authorized capital stock of Taro consists
of an unlimited number of common shares and an unlimited
number of Class A shares ("Taro Class A Shares"). As of
November 19, 1997, there were 5,893,818 Taro Common Shares
issued and outstanding. There are no outstanding Taro Class A
Shares. A total of 299,568 Taro Common Shares have been
reserved for issuance upon the exercise of the Taro Options,
all of which have now vested. All issued and outstanding Taro
Common Shares are validly issued, fully paid and nonassessable
and no holder thereof is entitled to preemptive rights. Taro
is not a party to, and is not aware of, any voting agreement,
voting trust or similar agreement or arrangement relating to
any class or series of its capital stock, or any agreement or
arrangement providing for registration rights with respect to
any capital stock or other securities of Taro.
(ii) Other than as described in Section 3.2(b)(i),
there are not now, and at the Effective Date there will not
be, any (A) shares of capital stock or other equity securities
of Taro outstanding other than Taro Common Shares issued
pursuant to the exercise of Taro Options or (B) outstanding
options, warrants, scrip, rights to subscribe for, calls or
commitments of any character whatsoever relating to, or
securities or rights convertible into or exchangeable for,
shares of any class of capital stock of Taro, or contracts,
understandings or arrangements to which Taro is a party, or by
which it is or may be bound, to issue additional shares of its
capital stock or options, warrants, scrip or rights to
subscribe for, or securities or rights convertible into or
exchangeable for, any additional shares of its capital stock.
(iii) Section 3.2(b)(iii) of the Taro Disclosure
Letter sets forth a list of the Taro Subsidiaries. Each Taro
Subsidiary is a corporation duly incorporated, validly
existing and in good standing under the laws of its
jurisdiction of incorporation or organization set forth on
Section 3.2(b)(iii) of the Taro Disclosure Letter, and, except
to the extent specified in Section 3.2(b)(iii) of the Taro
Disclosure Letter, is duly authorized, qualified and licensed
and has all requisite power and authority under all applicable
laws, ordinances and orders of public authorities to own,
operate and lease its properties and assets and to carry on
its business in the places and in the manner currently
conducted. All of the outstanding shares in the capital of
the Taro Subsidiaries have been duly authorized and validly
issued and are fully paid, non-assessable, were not issued in
violation of any preemptive rights or other preferential
rights of subscription or purchase of any Person and, except
as set forth in Section 3.2(b)(iii) of the Taro Disclosure
Letter, are owned of record and beneficially by Taro or the
Taro Subsidiary identified on such schedule as owning such
interest free and clear of
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all Liens (other than restrictions on sales of shares under
applicable securities laws). There are no outstanding
options, warrants, convertible securities, calls, rights,
commitments, preemptive rights, agreements, arrangements or
understandings of any character obligating any Taro Subsidiary
(i) to issue, deliver or sell, or cause to be issued,
delivered or sold, additional shares in the capital of any
Taro Subsidiary or any securities or obligations convertible
into or exchangeable for such shares or (ii) to grant, extend
or enter into any such option, warrant, convertible security,
call, right, commitment, preemptive right, agreement,
arrangement or understanding. Neither Taro nor any Taro
Subsidiary owns (directly or indirectly) any equity interest
or other interest or investment in any corporation,
partnership, joint venture, association or other entity or
organization, other than the Taro Subsidiaries and as set
forth in Section 3.2(b)(iii) of the Taro Disclosure Letter.
(c) Authorization and Validity of Agreement. Taro has
all requisite corporate power and authority to enter into this
Agreement and the Other Agreements and to perform its obligations
hereunder and thereunder. The execution and delivery by Taro of this
Agreement and the Other Agreements to which it is a party and the
consummation by it of the transactions contemplated hereby and thereby
have been duly authorized by all necessary corporate action (subject
only, with respect to the Arrangement, to approval of this Agreement
by the Taro Common Shareholders as provided for in Section 5.1). On
or prior to the date hereof the Board of Directors of Taro has
determined to recommend approval of the Arrangement to the Taro Common
Shareholders, and such determination is in effect as of the date
hereof. This Agreement has been duly executed and delivered by Taro
and is the valid and binding obligation of Taro enforceable against it
in accordance with its terms, except as enforceability may be limited
by applicable bankruptcy, insolvency, reorganization, moratorium or
similar laws from time to time in effect that affect creditors' rights
generally and by legal and equitable limitations on the availability
of specific remedies. The Other Agreements, when executed and
delivered by Taro, as applicable, will constitute valid and binding
obligations of Taro, enforceable against it in accordance with their
respective terms, except as enforceability may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium or
similar laws from time to time in effect that affect creditors' rights
generally and by legal and equitable limitations on the availability
of specific remedies.
(d) No Approvals or Notices Required; No Conflict with
Instruments to which Taro is a Party. The execution and delivery of
this Agreement and the Other Agreements do not, and the consummation
of the transactions contemplated hereby and thereby and compliance
with the provisions hereof and thereof will not, conflict with, or
result in any violation of, or default (with or without notice or
lapse of time, or both) under, or give rise to a right of termination,
cancellation or acceleration of or "put" right with respect to any
obligation or to loss of a material benefit under, or result in the
creation of any Lien upon any of the properties or assets of Taro or
any of the Taro Subsidiaries under, any provision of (i) the Taro
Articles or bylaws of Taro or any provision of the comparable
organizational documents of the Taro Subsidiaries, (ii) except as set
forth in Section 3.2(d) of the Taro Disclosure Letter, any loan or
credit agreement, note, bond, mortgage, indenture, lease, guaranty or
other financial assurance agreement or other agreement, instrument,
permit, concession, franchise or license applicable to Taro or its
properties or assets, (iii) except as set forth in Section 3.2(d) of
the Taro Disclosure Letter, any loan or credit agreement, note, bond,
mortgage, indenture, lease, guaranty or other financial assurance
agreement or other agreement, instrument, permit, concession,
franchise or license applicable to any Taro
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Subsidiary, or their respective properties or assets and (iv) subject
to governmental filing and other matters referred to in the following
sentence, any judgment, order, decree, statute, law, ordinance, rule
or regulation or arbitration award applicable to Taro or any of the
Taro Subsidiaries or their respective properties or assets, other
than, in the case of clauses (ii) and (iii), any such conflicts,
violations, defaults, rights or Liens that individually or in the
aggregate would not have a Taro MAE. No consent, approval, order or
authorization of, or registration, declaration or filing with, any
Governmental Entity is required by or with respect to Taro or any of
the Taro Subsidiaries in connection with the execution and delivery of
this Agreement by Taro or the consummation by Taro of the transactions
contemplated hereby, except for (i) issuance of the Interim Order and
the Final Order, (ii) the filing with the TSE and Commissions of the
Proxy Circular, (iii) the filing of the Articles of Arrangement and
Articles of Amalgamation with the Registrar with respect to the
Arrangement as provided in the ABCA and the Final Order and
appropriate documents with the relevant authorities of other
jurisdictions in which Taro is qualified to do business and (iv) such
other consents, approvals, orders, authorizations, registrations,
declarations, filings and notices as are set forth in Section 3.2(d)
of the Taro Disclosure Letter.
(e) Commission Filings; Financial Statements. Taro is a
reporting issuer under the securities laws of Alberta and Ontario and
is not in default of any requirement of such securities laws and it is
in compliance with the bylaws, rules and regulations of the TSE, being
the only exchange upon which the Taro Common Shares are listed. Taro
has filed all reports and other filings, together with any amendments
required to be made with respect thereto, that they have been required
to file with the TSE and the Commissions. Taro has heretofore
delivered to TAL copies of the Taro Commission Filings. As of the
respective dates of their filing with the TSE or the Commissions, the
Taro Commission Filings complied in all material respects with the
applicable securities laws, the rules and regulations of the
Commissions thereunder and the bylaws, rules and regulations of the
TSE, and were true and complete in all material respects and did not
contain any misrepresentation (as defined in the Securities Act
(Alberta)).
Each of the consolidated financial statements (including any
related notes or schedules) included in the Taro Commission Filings
was prepared in accordance with Canadian generally accepted accounting
principles applied on a consistent basis (except as may be noted
therein or in the notes or schedules thereto) and complied with the
rules and regulations of the TSE and the Commissions. Such
consolidated financial statements fairly present the consolidated
financial position of Taro as of the dates thereof and the results of
operations, cash flows and changes in shareholders' equity for the
periods then ended (subject, in the case of the unaudited interim
financial statements, to normal year-end audit adjustments on a basis
comparable with past periods). As of the date hereof, Taro has no
liabilities, absolute or contingent, that may reasonably be expected
to have a Taro MAE, that are not reflected in the Taro Commission
Filings, except (i) those incurred in the ordinary course of business
consistent with past operations and not relating to the borrowing of
money, and (ii) those set forth in Section 3.2(e) of the Taro
Disclosure Letter.
(f) Conduct of Business in the Ordinary Course; Absence
of Certain Changes and Events. Since December 31, 1996, except as
contemplated by this Agreement or as disclosed in the Taro Commission
Filings or set forth in Section 3.2(f) of the Taro Disclosure Letter,
Taro and the Taro Subsidiaries have conducted their respective
businesses only in the ordinary and usual course in accordance with
past practice, and there has not been: (i) a Taro MAE or any other
material adverse change in the
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financial condition, results of operations, prospects, assets or
business of Taro or any Taro Subsidiary, taken as a whole, or (ii) any
other condition, event or development that reasonably may be expected
to result in any such material adverse change or a Taro MAE; (iii) any
change by Taro in its accounting methods, principles or practices;
(iv) any amendment to the Taro Articles, bylaws or other governing
documents or any resolutions or proceedings pending for any amendment
thereto, except as may be contemplated therein; (v) any revaluation by
Taro or any Taro Subsidiary of any of its assets, including, without
limitation, writing down the value of inventory or writing off notes
or accounts receivable other than in the ordinary course of business
and consistent with past practice; (vi) any entry by Taro or any Taro
Subsidiary into any commitment or transaction that would be material
to Taro and not in the ordinary course of business; (vii) any
declaration, setting aside or payment of any dividends or
distributions in respect of the Taro Common Shares or any redemption,
purchase or other acquisition of any of its securities; (viii) any
damage, destruction or loss (whether or not covered by insurance)
adversely affecting the properties or business of Taro; (ix) any
increase in indebtedness of borrowed money other than borrowing under
existing credit facilities as disclosed in Section 3.2(f) of the Taro
Disclosure Letter; (x) any granting of a security interest or Lien on
any property or assets of Taro, other than Permitted Liens; (xi) any
increase in or establishment of any bonus, insurance, severance,
deferred compensation, pension, retirement, profit sharing, stock
option (including, without limitation, the granting of stock options,
stock appreciation rights, performance awards or restricted stock
awards), stock purchase or other employee benefit plan or any other
increase in the compensation payable or to become payable to any
directors, officers or key employees of Taro or which Taro would be
responsible; or (xii) any transaction with any Affiliate of Taro or
any Taro Subsidiary.
(g) Litigation. Except as disclosed in the Taro
Commission Filings or as set forth in Section 3.2(g) of the Taro
Disclosure Letter, there are no Demands, pending or, to the knowledge
of Taro, threatened against or affecting (i) Taro or any of its
properties at law or in equity, or any of their employee benefit plans
or fiduciaries of such plans or (ii) any Taro Subsidiary or any of
their respective properties at law or in equity, or any of their
respective employee benefit plans or fiduciaries of such plans, before
or by any Governmental Entity, wherever located that (i) exist today;
(ii) could prevent or hinder the consummation of the transactions
contemplated by this Agreement or the Plan of Arrangement or (iii)
would otherwise, if adversely determined, have a Taro MAE. Taro is
not subject to any judicial, governmental or administrative order,
writ, judgment, injunction or decree.
(h) Disclosure. Taro has made disclosure of all material
facts (as defined in the Securities Act (Alberta)) relating to its
business and financial affairs to TAL and acknowledges that TAL is
relying upon such disclosure in determining whether to proceed with
the Plan of Arrangement.
(i) Employee Benefit Plans.
(i) Section 3.2(i) of the Taro Disclosure Letter
provides a description of each Benefit Program or Agreement
that is sponsored, maintained or contributed to by Taro or any
Taro Subsidiary for the benefit of its employees, or has been
so sponsored, maintained or contributed to within three years
prior to the Effective Date. True and complete copies of each
of the Benefit Programs or Agreements, related trusts, if
applicable, and all amendments thereto have been furnished to
TAL.
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(ii) Except as otherwise set forth in Section
3.2(i) of the Taro Disclosure Letter,
(A) Each Benefit Program or Agreement
has been administered, maintained and operated in all
material respects in accordance with the terms
thereof and in compliance with its governing
documents and applicable law;
(B) There are no actions, suits or
claims pending (other than routine claims for
benefits) or, to the knowledge of Taro, threatened
against, or with respect to, any of the Benefit
Programs or Agreements or its assets; and
(C) The execution and delivery of this
Agreement and the consummation of the transactions
contemplated hereby will not require Taro or any Taro
Subsidiary to make a larger contribution to, or pay
greater benefits under, any Benefit Program or
Agreement than it otherwise would or create or give
rise to any additional vested rights or service
credits under any Benefit Program or Agreement or
cause the companies to make accelerated payments.
(iii) Except as set forth in Section 3.2(i) of the
Taro Disclosure Letter, termination of employment of any
employee of Taro or any Taro Subsidiary immediately after
consummation of the transactions contemplated by this
Agreement would not result in payments under the Benefit
Programs or Agreements.
(iv) Except as set forth in Section 3.2(i) of the
Taro Disclosure Letter, each of the Benefit Programs or
Agreements may be unilaterally amended or terminated in its
entirety without liability except as to benefits accrued
thereunder prior to such amendment or termination.
(v) Except as set forth in Section 3.2(i) of the
Taro Disclosure Letter, none of the employees of Taro or any
Taro Subsidiary are subject to union or collective bargaining
agreements.
(vi) None of Taro or any Taro Subsidiary has
agreed or is obligated to provide retiree medical coverage.
(vii) Except as set forth in Section 3.2(i) of the
Taro Disclosure Letter, to the best knowledge of Taro, none of
Taro or any of the Taro Subsidiaries, any officer or director
of Taro or any of the Taro Subsidiaries or any of the Benefit
Plans, or any trusts created thereunder, or any trustee or
administrator thereof, has engaged in any prohibited
transaction or act or any other breach of fiduciary
responsibility that could subject Taro or any Taro Subsidiary
or TAL as the successor to the business of Taro to any tax or
penalty or to any liability under any applicable law or
regulation.
(j) Taxes.
(i) Except as set forth in Section 3.2(j) of the
Taro Disclosure Letter, Taro and its current and past
subsidiaries have duly and timely filed, in all material
respects, in proper form, returns in respect of taxes under
the Income
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Tax Act (Canada), the Alberta Corporate Tax Act, the income
tax legislation of any other province of Canada or any foreign
country having jurisdiction over its affairs or any of the
Taro Subsidiaries, and similar legislation of other provinces
having jurisdiction over its affairs, for all prior periods in
respect of which such filings have heretofore been required.
All taxes shown on such returns and all taxes now owing,
including interest and penalties, have been paid or accrued on
Taro's books. There are no outstanding agreements or waivers
extending the statutory period of limitations applicable to
any federal, provincial or other income tax return for any
period. There is no material claim against Taro or any Taro
Subsidiary with respect to any taxes, and no material
assessment, deficiency or adjustment has been asserted or
proposed with respect to any tax return of or with respect to
Taro or any Taro Subsidiary that has not been adequately
provided for in reserves established by Taro or such Taro
Subsidiary. All income tax returns of or with respect to Taro
or any Taro Subsidiary up to and including December 31, 1995,
have been assessed by the applicable Governmental Entity. The
time period for reassessment under the Income Tax Act
(Canada), the Alberta Corporate Tax Act, and the Income Tax
Act (B.C.) in the absence of misrepresentation attributable to
negligence, carelessness, willful default or fraud has expired
for all periods up to and including the tax year ended
September 30, 1992. The total amounts set up as liabilities
for current and deferred taxes in the consolidated financial
statements included in the Taro Commission Filings have been
prepared in accordance with Canadian generally accepted
accounting principles and are sufficient to cover the payment
of all material taxes, including any penalties or interest
thereon and whether or not assessed or disputed, that are, or
are hereafter found to be, or to have been, due with respect
to the operations of Taro or any Taro Subsidiary through the
periods covered thereby. Except for statutory Liens for
current taxes not yet due, no Liens for taxes exist upon the
assets of Taro.
(ii) Taro and each Taro Subsidiary has remitted to
the proper tax authority when required by law to do so, all
amounts payable by it on account of GST and is a "taxable
Canadian corporation" for the Income Tax Act (Canada).
(iii) As of the Effective Date, Taro shall have
fully accrued for all taxes that may be required to be paid as
a result of the transactions contemplated hereby.
(k) Environmental Matters. Except as set forth in
Section 3.2(k) of the Taro Disclosure Letter, (i) the properties,
operations and activities of Taro and each of the Taro Subsidiaries
complies in all material respects with all applicable Environmental
Laws; (ii) none of Taro or any of its Taro Subsidiaries is subject to
any existing, pending or, to the knowledge of Taro, threatened action,
suit, investigation, inquiry or proceeding by or before any
Governmental Entity under any Environmental Law; (iii) except where
the failure would not have a Taro MAE, all notices, permits, licenses,
or similar authorizations, if any, required to be obtained or filed by
Taro under any Environmental Law in connection with any aspect of the
business of Taro or any Taro Subsidiary, including without limitation
those relating to the treatment, storage, disposal or release of a
hazardous substance or solid waste, have been duly obtained or filed
and will remain valid and in effect after the Arrangement and Taro and
each Taro Subsidiary is in compliance with the terms and conditions of
all such notices, permits, licenses and similar authorizations; (iv)
Taro and each Taro Subsidiary has satisfied and are currently in
compliance with all financial responsibility requirements applicable
to
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their operations and imposed by any Governmental Entity under any
Environmental Law, and none of such parties has received any notice of
noncompliance with any such requirements; (v) to Taro's knowledge,
there are no physical or environmental conditions existing on any
property currently owned or leased or previously owned or leased by
Taro or any entity in which it has or had ownership interest that
could reasonably be expected to give rise to any on-site or off-site
remedial obligations under any Environmental Laws; and (vi) to Taro's
knowledge, since the effective date of the relevant requirements of
applicable Environmental Laws, all hazardous substances or solid
wastes generated by Taro or any Taro Subsidiary or used in connection
with their properties or operations have been transported only by
carriers authorized under Environmental Laws to transport such
substances and wastes, and disposed of only at treatment, storage, and
disposal facilities authorized under environmental laws to treat,
store or dispose of such substances and wastes, and, to the knowledge
of Taro, such carriers and facilities have been and are operating in
compliance with such authorizations and are not the subject of any
existing, pending, or overtly threatened action, investigation, or
inquiry by any Governmental Entity in connection with any
Environmental Laws.
(l) Severance Payments. Except as set forth in Section
3.2(l) of the Taro Disclosure Letter, Taro will not have any liability
or obligation to pay a severance payment or similar obligation to any
of their respective employees, officers, or directors as a result of
the Arrangement or the transactions contemplated by this Agreement,
nor will any of such Persons be entitled to an increase in severance
payments or other benefits as a result of the Arrangement or the
transactions contemplated by this Agreement or the Other Agreements in
the event of the subsequent termination of their employment.
(m) Shareholder and Similar Agreements. To the knowledge
and belief of Taro, except as disclosed in Section 3.2(m) of the Taro
Disclosure Letter, there are no shareholder, pooling, voting trust or
other agreements relating to the issued and outstanding shares of
Taro.
(n) Brokers. No broker, investment banker, or other
Person acting on behalf of Taro or any Taro Subsidiary is or will be
entitled to any broker's, finder's or other similar fee or commission
in connection with the transactions contemplated by this Agreement.
(o) Compliance with Laws. Taro and each of the Taro
Subsidiaries hold all required, necessary or applicable permits,
licenses, variances, exemptions, orders, franchises and approvals of
all Governmental Entities, except where the failure to so hold could
not reasonably be expected to have a Taro MAE (the "Taro Permits").
All applications with respect to such permits, licenses, variances,
exemptions, orders, franchises and approvals were complete and correct
in all material respects when made and Taro does not know of any
reason why any of such permits, licenses, variances, exemptions,
orders, franchises and approvals would be subject to cancellation.
Taro and each of the Taro Subsidiaries are in compliance with the
terms of the Taro Permits except where the failure to so comply could
not reasonably be expected to have a Taro MAE. Neither Taro nor any
of the Taro Subsidiaries has violated or failed to comply with any
statute, law, ordinance, regulation, rule, permit or order of any
federal, provincial or local government, domestic or foreign, or any
Governmental Entity, any arbitration award or any judgment, decree or
order of any court or other Governmental Entity, applicable to Taro or
any of the Taro Subsidiaries or their respective business,
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assets or operations, except for violations and failures to comply
that would not have a Taro MAE.
(p) Contracts.
(i) Section 3.2(p) to the Taro Disclosure Letter
contains a complete list of the following contracts,
agreements, arrangements and commitments: (i) all employment
or consulting contracts or agreements to which Taro or any
Taro Subsidiary is contractually obligated; (ii) current
leases, sales contracts and other agreements with respect to
any property, real or personal, of Taro or any Taro Subsidiary
or to which Taro or any Taro Subsidiary is contractually
obligated; (iii) contracts or commitments for capital
expenditures or acquisitions in excess of $30,000 to which
Taro or any Taro Subsidiary is obligated; (iv) agreements,
contracts, indentures or other instruments relating to the
borrowing of money, or the guarantee of any obligation for the
borrowing of money, to which Taro or any Taro Subsidiary is a
party or any of their respective properties is bound; (v)
contracts or agreements or amendments thereto that would be
required to be filed as an exhibit to a Taro Commission Filing
that has not yet been filed as an exhibit; (vi) all
corporations, partnerships, limited liability companies and
other entities that Taro or any Taro Subsidiary has owned,
directly or indirectly, an equity interest in since June 15,
1993, (vii) all material indemnification and guaranty or other
similar obligations to which Taro or any Taro Subsidiary is
bound and which the officers of Taro or any Taro Subsidiary,
after reasonable investigation, are aware, (viii) any
outstanding bonds, letters of credit posted or guaranteed by
Taro or any Taro Subsidiary with respect to any Person, (ix)
any covenants not to compete or other obligations affecting
Taro or any Taro Subsidiary that would restrict New Taro or
EVI and its Affiliates from engaging in any business or
activity that the officers of Taro are aware, after reasonable
investigation (x) contracts or agreements requiring the
customer's payments for goods or services or the provision of
goods or services at a price less than Taro's or a Taro
Subsidiary's cost of producing such goods or providing such
services, (xi) agreements or obligations with any Affiliate of
Taro, (xii) any agreement, lease contract or commitment or
series of related agreements, leases, contracts or commitments
not entered into in the ordinary course of business or, except
for agreements to purchase or sell goods and services entered
into in the ordinary course of business, not cancelable by
Taro or any Taro Subsidiary within 30 calendar days, (xiii)
any agreement, contract or commitment that would limit the
freedom of Taro or any Taro Subsidiary or any Affiliate of
Taro following the Closing Date to engage in any line of
business, to own, operate, sell, transfer, pledge or otherwise
dispose of or encumber any of their assets or to compete with
any Person or to engage in any business or activity in any
geographic area, (xiv) any manufacturing, supply, sales,
distributorship or similar agreement relating to the products
manufactured or sold or services provided by Taro or any Taro
Subsidiary, (xv) any license, royalty or similar agreement and
(xvi) contracts, agreements, arrangements or commitments,
other than the foregoing, that could reasonably be considered
to be material to Taro or any Taro Subsidiary, taken as a
whole.
(ii) True and correct copies of all the
instruments described in Section 3.2(p) of the Taro Disclosure
Letter have been furnished or made available to TAL. Except
as noted in the Taro Disclosure Letter, all such agreements,
arrangements or commitments are valid and subsisting and each
of
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Taro and the Taro Subsidiaries to the extent each is a party,
has duly performed its obligations thereunder in all material
respects to the extent such obligations have accrued, and no
breach or default thereunder by Taro or the Taro Subsidiaries
or, to the knowledge of Taro, any other party thereto has
occurred that could impair the ability of Taro or the Taro
Subsidiaries to enforce any material rights thereunder. There
are no material liabilities of any of the parties to any of
the contracts between Taro or any of the Taro Subsidiaries and
third parties arising from any breach of or default in any
provision thereof or which would permit the acceleration of
any obligation of any party thereto or the creation of a Lien
upon any asset of Taro or any of the Taro Subsidiaries.
(q) Title to Property.
(i) At the Effective Date, Taro and each of the
Taro Subsidiaries will have good and marketable title to, or
valid leasehold interests in, all their respective properties
and assets.
(ii) Taro and each of the Taro Subsidiaries has
complied in all material respects with the terms of all leases
to which they are a party and under which they are in
occupancy, and all such leases are in full force and effect.
Taro and each of the Taro Subsidiaries enjoy peaceful and
undisturbed possession under all such leases.
(r) Intellectual Property. Taro or a Taro Subsidiary
owns or possesses licenses or other rights to use all Proprietary
Rights that, in each case, Taro or any Taro Subsidiary reasonably
believes are necessary for the conduct of their business as currently
conducted. Set forth in Section 3.2(r) of the Taro Disclosure Letter
is a complete and accurate list of all patents, trademarks and
licenses Taro or any Taro Subsidiary owns or possesses or otherwise
has rights to use and all patents, trademarks and licenses pertaining
to their business that Taro or any Taro Subsidiary owns or possesses
or otherwise has rights to use. No licenses, sublicenses, covenants
or agreements have been granted or entered into by Taro or any Taro
Subsidiary in respect of the items listed in Section 3.2(r) of the
Taro Disclosure Letter except as noted thereon. Neither Taro, any
Taro Subsidiary nor any Affiliate of Taro has received any notice of
infringement, misappropriation or conflict from any other Person with
respect to such Proprietary Rights except as noted in Section 3.2(r)
of the Taro Disclosure Letter, and, to the best knowledge of Taro, the
conduct of the business of Taro and the Taro Subsidiaries has not
infringed, misappropriated or otherwise conflicted with any
proprietary rights of any other Person. Neither Taro nor any Taro
Subsidiary has given indemnification for patent, trademark, service
mark or copyright infringements except to licensees or customers in
the ordinary course of business. All of the Proprietary Rights that
are owned by Taro or any Taro Subsidiary are owned free and clear of
all Liens except for Permitted Liens and as set forth in Section
3.2(r) of the Taro Disclosure Letter. All Proprietary Rights that are
licensed by Taro or any Taro Subsidiary from third parties are
licensed pursuant to valid and existing license agreements and such
interests are not subject to any Liens other than those under the
applicable license agreements. The consummation of the transactions
contemplated by this Agreement will not result in the loss of any
Proprietary Rights material to the business of Taro or any Taro
Subsidiary.
(s) Insurance Policies. Section 3.2(s) of the Taro
Disclosure Letter contains a correct and complete description of all
insurance policies held by Taro covering Taro and the Taro
Subsidiaries, any employees or other agents of Taro and the Taro
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Subsidiaries or any assets of Taro and the Taro Subsidiaries. Each
such policy is in full force and effect, is with responsible insurance
carriers and is substantially equivalent in coverage and amount to
policies covering companies of the size of Taro and in the business in
which Taro and the Taro Subsidiaries is engaged, in light of the risk
to which such companies and their employees, businesses, properties
and other assets may be exposed. All retroactive premium adjustments
under any worker's compensation policy of Taro or any of the Taro
Subsidiaries have been recorded in Taro's financial statements in
accordance with Canadian generally accepted accounting principles and
are reflected in the financial statements contained in the Taro
Commission Filings.
(t) Loans. Section 3.2(t) of the Taro Disclosure Letter
sets forth all existing loans, advances or other extensions of credit
(excluding accounts receivable arising in the ordinary course of
business) by Taro or the Taro Subsidiaries to any party other than
intercompany loans, advances, guaranties or extensions of credit.
(u) No Fraudulent Transfer. Neither Taro nor any Taro
Subsidiary has within the last twelve months made any transfer or
incurred any obligation with actual intent to hinder, delay or defraud
any entity to which it was or may become indebted and it has not
transferred any material property without receiving reasonably
equivalent value for any such transfer obligation. Immediately prior
to the Arrangement, (i) the fair value of the assets of Taro and the
Taro Subsidiaries at a fair valuation exceeds their debts and
liabilities, subordinated, contingent or otherwise, (ii) the present
fair saleable value of the property of Taro and the Taro Subsidiaries
is greater than the amount that will be required to pay its probable
liability on its debts and other liabilities, subordinated, contingent
or otherwise, as such debts and liabilities become absolute and
mature, (iii) Taro and the Taro Subsidiaries reasonably expect to be
able to pay their debts and liabilities, subordinated, contingent or
otherwise, as such debts and liabilities become absolute and matured,
(iv) Taro and any Taro Subsidiary will not have unreasonably small
capital with which to conduct the business in which it is engaged as
such business is now conducted and is proposed to be conducted, and
(v) to the knowledge of Taro or any Taro Subsidiary, no creditor of
Taro, TAL, New Taro or any Taro Subsidiary will be prejudiced by the
Arrangement. For all purposes of clauses of (i) through (v), the
amount of contingent liabilities at any time shall be computed as the
amount that, in light of all the facts and circumstances existing at
such time, represents the amount that can reasonably be expected to
become an actual or matured liability.
(v) Information Supplied. The information included or
incorporated by reference in the Proxy Circular (except for any
information supplied or to be supplied by TAL) shall, at the date the
Proxy Circular is first mailed to Taro Common Shareholders and at the
time of the Taro Shareholders Meeting, be true and complete in all
material respects and shall not contain any misrepresentation (as
defined in the Securities Act (Alberta)). The Proxy Circular will
comply as to form in all material respects with the requirements of
the Securities Act (Alberta) and the rules and regulations thereunder.
(w) Sales into the United States. Revenues from sales of
goods and services attributable to the business of Taro and the Taro
Subsidiaries into and for use in the United States have, for each of
the three years preceding the date hereof, been less than an aggregate
total of US$25 million. The aggregate total book value of the assets
in the United States of Taro and the Taro Subsidiaries is less than
US$15 million.
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ARTICLE IV
COVENANTS OF TARO
4.1 CONDUCT OF BUSINESS BY TARO PENDING THE ARRANGEMENT. Taro
covenants and agrees that, from the date of this Agreement until the earlier of
the Effective Date or the date of termination of this Agreement, unless TAL
shall otherwise agree in writing or as otherwise expressly contemplated by this
Agreement or set forth in Section 4.1 of the Taro Disclosure Letter:
(a) the business of Taro and the Taro Subsidiaries shall
be conducted only in, and Taro and the Taro Subsidiaries shall not
take any action except in, the ordinary course of business and
consistent with past practice;
(b) Taro shall not directly or indirectly do any of the
following: (i) issue, sell, pledge, dispose of or encumber any
capital stock of Taro except upon the exercise of outstanding Taro
Options; (ii) split, combine, or reclassify any outstanding capital
stock, or declare, set aside, or pay any dividend payable in cash,
stock, property, or otherwise with respect to its capital stock
whether now or hereafter outstanding; (iii) redeem, purchase or
acquire or offer to acquire any of its capital stock; (iv) grant any
options to purchase any capital stock of Taro or any Taro Subsidiary;
(v) acquire, agree to acquire or make any offer to acquire for cash or
other consideration, any equity interest in or all or substantially
all of the assets of any corporation, partnership, joint venture, or
other entity; (vi) enter into any contract, agreement, commitment, or
arrangement with respect to any of the matters set forth in this
Section 4.1(b); (vii) amend its articles or bylaws; or (viii)
reorganize, amalgamate or merge with any other Person;
(c) Neither Taro nor any Taro Subsidiary shall enter into
any contract regarding its business having a term greater than 180
days or involving an amount in excess of $250,000 or commit to do the
same; provided, however, that if such contract directly relates to the
sale of compression products by Taro, then the amount involved may not
be in excess of $1 million.
(d) Except for the proviso contained in Section 4.1(c),
Taro and the Taro Subsidiaries shall not become bound by any agreement
or obligation in an amount in excess of $500,000 in the aggregate for
all such agreements and obligations;
(e) Taro and the Taro Subsidiaries shall not pledge or
encumber any of the assets of Taro or the Taro Subsidiaries;
(f) Neither Taro nor any of the Taro Subsidiaries shall
enter into any written employment or consulting contracts or, except
for the hiring of non-executive employees in the ordinary course of
business, any oral employment or consulting contracts;
(g) Other than in the ordinary course of business,
neither Taro nor any of the Taro Subsidiaries shall enter into any
contract or agreement that, if effective on the date hereof, would be
required to be identified as a disclosure pursuant to Section 3.2(p)
of the Taro Disclosure Letter.
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(h) Neither Taro nor any of the Taro Subsidiaries shall
sell, lease, mortgage, pledge, grant a Lien on or otherwise encumber
or otherwise dispose of any of Taro's or the Taro Subsidiaries'
properties or assets in an amount in excess of $50,000 in the
aggregate, except sales of inventory in the ordinary course of
business consistent with past practice;
(i) Neither Taro nor any of the Taro Subsidiaries shall,
directly or indirectly, incur any indebtedness for borrowed money or
guarantee any such indebtedness of another Person, issue or sell any
debt securities or warrants or other rights to acquire any debt
securities of Taro or the Taro Subsidiaries, guarantee any debt
securities of another Person, enter into any "keep well" or other
agreement to maintain any financial statement condition of another
Person or enter into any arrangement having the economic effect of any
of the foregoing, except for short-term borrowings incurred in the
ordinary course of business consistent with past practice, or make or
permit to remain outstanding any loans, advances or capital
contributions to, or investments in, any other Person, other than to
Taro or any direct or indirect wholly owned subsidiary of Taro;
(j) Neither Taro nor any of the Taro Subsidiaries shall
make any election relating to taxes;
(k) Neither Taro nor any of the Taro Subsidiaries shall
change any accounting principle used by it;
(l) Taro shall use its reasonable efforts (i) to preserve
intact the business organization of Taro, (ii) to maintain in effect
any material authorizations or similar rights of Taro, (iii) to
preserve the goodwill of those having material business relationships
with it, (iv) to maintain and keep each of Taro's properties in the
same repair and condition as presently exists, except for
deterioration due to ordinary wear and tear and damage due to casualty
and (v) to maintain in full force and effect insurance comparable in
amount and scope of coverage to that currently maintained by it;
(m) Taro shall, and shall cause the Taro Subsidiaries to,
perform their respective obligations under any contracts and
agreements to which it is a party or to which any of its assets is
subject, except to the extent such failure to perform would not have a
Taro MAE, and except for such obligations as Taro in good faith may
dispute;
(n) Neither Taro nor any of the Taro Subsidiaries shall
settle or compromise any litigation (whether or not commenced prior to
the date of this Agreement) other than settlements or compromises: (i)
of litigation where the amount paid in settlement or compromise does
not exceed $50,000, or if greater, the amount of the reserve therefor
reflected in the most recent Taro Commission Filings and the terms of
the settlement would not otherwise have a Taro MAE or (ii) in
consultation and cooperation with TAL, and, with respect to any such
settlement, with the prior written consent of TAL;
(o) Neither Taro nor any Taro Subsidiary shall enter into
any transaction with any Affiliate of Taro;
(p) Neither Taro nor any Taro Subsidiary shall grant any
management or shareholder bonus or, other than in the ordinary course
of business consistent with past practice, any salary increase; and
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(q) Taro shall not authorize any of, or commit or agree
to take any of, or permit any Taro Subsidiary to take any of, the
foregoing actions to the extent prohibited by the foregoing and shall
not, and shall not permit any of the Taro Subsidiaries to, take any
action that would, or that reasonably could be expected to, result in
any of the representations and warranties set forth in this Agreement
becoming untrue or any of the conditions to the Arrangement set forth
in Article VI not being satisfied. Taro promptly shall advise TAL
orally and in writing of any change or event having, or which, insofar
as reasonably can be foreseen, would have, a material adverse effect
on Taro and the Taro Subsidiaries, taken as a whole; or cause a Taro
MAE.
4.2 SUBSIDIARY DISSOLUTION. Taro will use its best efforts to
dissolve all of the Taro Subsidiaries prior to the Effective Date.
ARTICLE V
ADDITIONAL AGREEMENTS
5.1 COOPERATION; CONSENTS AND APPROVALS. In cooperation with TAL,
Taro shall prepare all necessary documents and filings and obtain all
approvals, including the obtaining of the Interim Order and the Final Order and
the preparation of the Proxy Circular.
(a) Without limiting the foregoing, Taro shall use all
reasonable efforts to, as soon as practicable, complete the
preparation of the Proxy Circular as agreed with TAL and, subject to
the grant of the Interim Order, to mail to the Taro Common
Shareholders and file in all jurisdictions where required the Proxy
Circular and other documentation required in connection with the Taro
Shareholders Meeting, all in accordance with National Policy No. 41 of
the Canadian Securities Administrators, the Interim Order and
applicable law, and Taro shall use all reasonable efforts, subject to
the grant of the Interim Order, to as soon as practicable and in any
event on the date specified in the Interim Order, to convene the Taro
Shareholders Meeting for the purpose of approving the Arrangement and
this Agreement in accordance with the Interim Order.
(b) Taro shall cause a list of Taro Common Shareholders
as of the record date for the Taro Shareholders Meeting and the
shareholder mailing information, in a form suitable for soliciting of
Taro Common Shareholders to be prepared by the Depositary, to be
delivered to TAL no later than the Business Day after such record
date.
(c) Taro shall ensure that the Proxy Circular complies
with all applicable disclosure laws as they relate to the disclosure
of information regarding Taro and, without limiting the generality of
the foregoing, provides the Taro Common Shareholders to which such
circular is sent with information in sufficient detail to permit them
to form a reasoned judgment concerning the matters before them.
(d) EVI and TAL shall provide all such information
reasonably required for inclusion in the Proxy Circular to permit Taro
to comply with Section 5.1(c).
(e) Subject to the terms and conditions set forth in
Section 6.3 and the fiduciary obligations of the Board of Directors of
Taro with respect to such matters, the Board of Directors of Taro (i)
shall recommend at such meeting that the Taro Common
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Shareholders vote to adopt and approve the Arrangement and this
Agreement (the "Recommendation"), (ii) shall use its reasonable
efforts to solicit from the Taro Common Shareholders proxies in favour
of such adoption and approval and (iii) shall take all other action
reasonably necessary to secure a vote of its shareholders in favour of
the adoption and approval of the Arrangement and this Agreement.
(f) Prior to the Effective Date, EVI shall have taken all
necessary action to permit it to issue the number of shares of EVI
Common Stock issuable upon the exercise of the Taro Options after the
Effective Date and the shares of EVI Common Stock to be so issued
will, when issued pursuant to the terms of the Taro Option Plan, be
validly issued, fully paid and non-assessable and not subject to any
preemptive rights.
5.2 DEPOSITARY. Taro shall permit and direct the Depositary to
act as New Taro's depositary under the Arrangement. EVI shall permit and
direct the Depositary to act as EVI's depositary under the Arrangement.
5.3 FILINGS; CONSENTS; REASONABLE EFFORTS. Subject to the terms
and conditions of this Agreement, Taro and TAL shall (i) make all necessary
filings with respect to the Arrangement and this Agreement under applicable
securities laws and shall use all reasonable efforts to obtain required
approvals and clearances with respect thereto; (ii) use reasonable efforts to
obtain all consents, waivers, approvals, authorizations, and orders required in
connection with the authorization, execution, and delivery of this Agreement
and the consummation of the Arrangement; (iii) use reasonable efforts to take,
or cause to be taken, all appropriate action, and do, or cause to be done, all
things necessary, proper, or advisable to consummate and make effective as
promptly as practicable the transactions contemplated by this Agreement; and
(iv) will permit the review by each other of all documents to be filed with the
Court or to be sent to the Taro Common Shareholders with respect to the Taro
Shareholders Meeting.
5.4 NOTIFICATION OF CERTAIN MATTERS. Taro shall give prompt
notice to TAL, and TAL shall give prompt notice to Taro, orally and in writing,
of (i) the occurrence, or failure to occur, of any event which occurrence or
failure would be likely to cause any representation or warranty contained in
this Agreement to be untrue or inaccurate at any time from the date hereof to
the Effective Date; and (ii) any material failure of Taro or TAL, as the case
may be, or any officer, director, employee or agent thereof, to comply with or
satisfy any covenant, condition or agreement to be compiled with or satisfied
by it hereunder.
5.5 EXPENSES. Except as provided in Section 7.3, whether or not
the Arrangement is consummated, all costs and expenses incurred in connection
with this Agreement and the transactions contemplated hereby shall be paid by
the party incurring such expenses; provided, however, that if this Agreement
shall have been terminated pursuant to Section 7.1 as a result of the willful
breach by a party of any of its representations, warranties, covenants, or
agreements set forth in this Agreement, such breaching party shall pay the
direct out-of-pocket costs and expenses of the other parties in connection with
the transactions contemplated by this Agreement.
5.6 TARO OPTION PLAN. Taro shall take action prior to the
Arrangement to modify the Taro Option Plan to reflect that upon exercise of the
Taro Options, shares of EVI Common Stock will be issued in lieu of Taro Common
Shares.
5.7 NO SOLICITATIONS. Taro shall not, nor shall it permit any
Taro Subsidiary to, nor shall it authorize or permit any officer, director or
employee of or any investment banker, attorney or other advisor, agent or
representative of Taro or any Taro Subsidiary to, directly
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or indirectly, make, solicit, initiate or encourage inquiries or the submission
of proposals or offers from any Person other than TAL relating to the
acquisition, recapitalization, merger, amalgamation, arrangement, purchase or
dissolution of Taro or, except with the prior written consent of TAL, of
material assets or any ownership or debt interest of or in Taro or any similar
or business combination transaction (any of the foregoing proposals or offers
being referred to herein as an "Acquisition Proposal"), or participate in
discussions or negotiations, or in any way assist, facilitate or cooperate with
any Person other than TAL seeking to do any of the foregoing, including by
furnishing information to any such Person, provided that the foregoing shall
not prevent the board of directors of Taro from responding to any bona fide
offer, proposal or inquiry made by a third party in connection with the
foregoing and providing information to such a Person, if, in the opinion of the
directors, acting in good faith and upon the advice of their financial and
legal advisors, the failure to do so would be inconsistent with the directors'
fiduciary duties under applicable law. In such event, Taro shall promptly
advise TAL orally and in writing of the material terms and conditions of such
Acquisition Proposal and the identity of the Person making such Acquisition
Proposal. Prior to Taro providing any information concerning Taro or any Taro
Subsidiaries to such Person, such Person shall sign a confidentiality agreement
substantially similar to the confidentiality agreement signed by EVI. Taro
shall keep TAL fully informed of the status and details of any such Acquisition
Proposal.
5.8 BETTER OFFERS.
(a) If a competing bona fide Acquisition Proposal is made
that is more favorable from a financial point of view to the Taro
Common Shareholders, then the board of directors of Taro may withdraw
the Recommendation provided that, in the opinion of the directors,
acting in good faith and upon the advice of their financial and legal
advisors, the directors' fiduciary duties under applicable law would
require withdrawal of the Recommendation.
(b) Taro and its board of directors may cause any
withdrawal of the Recommendation and any support for or recommendation
of a competing bona fide Acquisition Proposal made as permitted by
Section 5.8(a) to be reflected in a public announcement and in a proxy
circular or amendment thereto.
5.9 MUTUAL AGREEMENTS. Each of Taro and TAL covenants and agrees
that, until the Effective Date or the day upon which this Agreement is
terminated, whichever is earlier, it:
(a) will in a timely and expeditious manner, but in any
event not later than December 22, 1997, file, proceed with and
diligently prosecute an application to the Court under the ABCA for an
Interim Order with respect to the Arrangement;
(b) will, in a timely and expeditious manner, carry out
the terms of the Interim Order, provided that nothing shall require a
party to consent to any modification of this Agreement, the
Arrangement or such party's obligations hereunder.
(c) will, subject to the approval of the Arrangement at
the Taro Shareholders Meeting in accordance with the provisions on the
Interim Order, forthwith, but in any event not later than February 27,
1998, file, proceed with and diligently prosecute together with the
other party an application for the Final Order; and
(d) will forthwith carry out the terms of the Final Order
and will, together with the other party, file Articles of Arrangement
and the Final Order with the Registrar in order for the Arrangement to
become effective on or before March 31, 1998,
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provided that nothing shall require a party to consent to any
modification of this Agreement, the Arrangement or such party's
obligations hereunder.
5.10 DEPOSIT OF EVI STOCK. EVI shall deposit with the Depositary
the shares of EVI Common Stock required for the exchange of Taro Common Shares
held by Non-Residents of Canada and the exchange of the New Taro Class B Common
Shares pursuant to this Agreement and the Plan of Arrangement and EVI shall
irrevocably direct the Depositary to exchange the Taro Common Shares held by
Non-Residents of Canada and to exchange the New Taro Class B Common Shares with
the shares of EVI Common Stock deposited.
5.11 TAL OBLIGATIONS. EVI covenants and agrees to cause TAL to
fulfill its obligations under this Agreement in accordance with the provisions
of this Agreement.
ARTICLE VI
CONDITIONS
6.1 CONDITIONS TO OBLIGATION OF EACH PARTY TO EFFECT THE
ARRANGEMENT. The respective obligations of each party to effect the
Arrangement shall be subject to the fulfillment at or prior to the Effective
Date of the following conditions:
(a) This Agreement and the Arrangement shall have been
approved and adopted by the requisite vote of the Taro Common
Shareholders as may be required by law, by the Court, by the rules of
the TSE and by any applicable provisions of the Taro Articles or its
bylaws;
(b) No order shall have been entered and remain in effect
in any action or proceeding before any foreign, federal or state court
or governmental agency or other foreign, federal or province
regulatory or administrative agency or commission that would prevent
or make illegal the consummation of the Arrangement;
(c) There shall have been obtained any and all material
permits, approvals and consents of securities commissions of any
jurisdiction, and of any other governmental body or agency, that
reasonably may be deemed necessary so that the consummation of the
Arrangement and the transactions contemplated thereby will be in
compliance with applicable laws, the failure to comply with which
would have a Taro MAE or TAL MAE; and
(d) All approvals and consents of third Persons (i) the
granting of which is necessary for the consummation of the Arrangement
or the transactions contemplated in connection therewith and (ii) the
non- receipt of which would have a Taro MAE or a TAL MAE, including
the receipt of the Interim Order and the Final Order.
6.2 ADDITIONAL CONDITIONS TO OBLIGATIONS OF EVI AND TAL. The
obligations of EVI and TAL to effect the Arrangement is, at the option of EVI
and TAL, also subject to the fulfillment at or prior to the Effective Date of
the following conditions:
(a) The representations and warranties of Taro contained
in Section 3.2 shall be accurate as of the date of this Agreement and
(except to the extent such representations and warranties speak
specifically as of an earlier date) as of the Effective Date as though
such representations and warranties had been made at and as of that
time; all of the terms, covenants and conditions of this Agreement to
be
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complied with and performed by Taro on or before the Effective Date
shall have been duly complied with and performed in all material
respects; and a certificate to the foregoing effect dated the
Effective Date and signed by the chief executive officer and the
president of Taro shall have been delivered to TAL;
(b) There shall not have occurred or exist any fact or
condition that would reasonably result in a Taro MAE or would
constitute a material fixed or contingent liability to Taro, and TAL
shall have received a certificate signed by the president of Taro
dated the Effective Date to such effect;
(c) The Recommendation shall have been made and not
withdrawn or altered;
(d) There shall be no more than 5% of the total issued
and outstanding Taro Common Shares having exercised rights of dissent
in relation to the Arrangement approved at the Taro Shareholders
Meeting;
(e) TAL shall have received from Bennett Jones Verchere,
counsel to Taro, an opinion dated the Effective Date covering
customary matters relating to the Agreement and the Arrangement;
(f) EVI and TAL shall be reasonably satisfied that
immediately prior to the Effective Date (i) the aggregate number of
Taro Common Shares issued and outstanding and reserved for issuance
upon the exercise of outstanding Taro Options is not greater than
6,192,386 and (ii) no Person has any agreement or option or any right
or privilege (whether by law, preemptive right, contract or otherwise)
capable of becoming an agreement, option, right or privilege for the
purchase, subscription, allotment or issuance of any unissued
securities of Taro;
(g) No preliminary or permanent injunction or other order
of any court or other Governmental Entity shall be in effect or
threatened nor shall there be in effect any statute, rule, regulation
or executive order promulgated or enacted by any Governmental Entity
that, in any such case, prevents the consummation of the transactions
contemplated by this Agreement. No suit, action, claim, proceeding or
investigation before any Governmental Entity shall have been commenced
or threatened by any Person (other than EVI, TAL or their Affiliates)
seeking to prevent the transaction or asserting that the transaction
would be unlawful; and
(h) EVI shall have received from Taro a list of such
Persons, if any, that EVI, after discussions with counsel for Taro,
believes may be "affiliates" of Taro (the "Taro Affiliates"), within
the meaning of Rule 145 promulgated under the Securities Act. Taro
shall deliver or cause to be delivered to EVI an undertaking by each
Taro Affiliate in form satisfactory to EVI that no EVI Common Stock
received or to be received by such Taro Affiliate pursuant to the
Arrangement will be sold or disposed of except pursuant to an
effective registration statement under the Securities Act or in
accordance with the provisions of Rule 144 or Rule 145(d) promulgated
under the Securities Act or another exemption from registration under
the Securities Act.
6.3 ADDITIONAL CONDITIONS TO OBLIGATIONS OF TARO. The obligation
of Taro to effect the Arrangement is, at the option of Taro, also subject to
the fulfillment at or prior to the Effective Date of the following conditions:
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(a) The representations and warranties of EVI and TAL
contained in Section 3.1 shall be accurate as of the date of this
Agreement and (except to the extent such representations and
warranties speak specifically as of an earlier date) as of the
Effective Date as though such representations and warranties had been
made at and as of that time; all the terms, covenants and conditions
of this Agreement to be complied with and performed by EVI and TAL on
or before the Effective Date shall have been duly complied with and
performed in all material respects; and a certificate to the foregoing
effect dated the Effective Date and signed by the chief executive
officer of TAL shall have been delivered to Taro;
(b) Taro shall have received from Fulbright & Jaworski
L.L.P., United States counsel to EVI and TAL, an opinion dated the
Effective Date covering customary matters relating to the laws of the
United States with respect to this Agreement and the Arrangement,
including an opinion to the effect that (i) subject to approval of the
Court and the issuance of the shares of EVI Common Stock pursuant to
the terms of the Plan of Arrangement, the shares of EVI Common Stock
to be issued pursuant to the Plan of Arrangement will be fully paid
and non-assessable shares of EVI Common Stock, (ii) the issuance of
the shares of EVI Common Stock pursuant to the Plan of Arrangement is
exempt from registration under the Securities Act, (iii) the shares of
EVI Common Stock issuable pursuant to the Plan of Arrangement will not
be "restricted securities" within the meaning of Rule 144(a)(iii)
promulgated under the Securities Act and resells by non-affiliates may
be effected without reliance upon Rule 144 and (iv) resells by
affiliates of Taro or New Taro would be subject to Rule 144 (excluding
the holding period requirement) absent registration under the
Securities Act or an available exemption, except that no opinion need
be provided with respect to shares of EVI Common Stock issued in
respect of Taro Common Shares that would be "restricted securities"
within the meaning of Rule 144(a)(iii) promulgated under the
Securities Act;
(c) Taro shall have received from Milner Fenerty,
Canadian counsel to EVI and TAL, an opinion dated the Effective Date
covering customary matters relating to the laws of Canada and the
provinces of Alberta and Ontario with respect to this Agreement and
the Arrangement, including that the first trade of the shares of EVI
Common Stock deposited pursuant to Section 5.10 and to be issued to
Taro Common Shareholders in exchange for Taro Common Shares or New
Taro Class B Common Shares, as the case may be, will not constitute a
"distribution" under the securities laws of the provinces of Alberta
and Ontario, subject to the restrictions, if any, arising as a result
of the undertakings to be provided pursuant to Section 6.2(h); and
(d) EVI shall have deposited with the Depositary the
shares of EVI Common Stock required for the exchange of the Taro
Common Shares held by Non-Residents of Canada and the exchange of the
New Taro Class B Common Shares pursuant to this Agreement and the Plan
of Arrangement and EVI shall have irrevocably directed the Depositary
to exchange the Taro Common Shares held by Non-Residents of Canada and
to exchange the New Taro Class B Common Shares with the shares of EVI
Common Stock deposited.
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ARTICLE VII
MISCELLANEOUS
7.1 TERMINATION. This Agreement may be terminated and the
Arrangement and the other transactions contemplated herein may be abandoned at
any time prior to the Effective Date, whether prior to or after approval by the
Taro Common Shareholders:
(a) by mutual written consent of EVI, TAL and Taro;
(b) by EVI, TAL or Taro if (i) the Arrangement has not
been consummated on or before March 31, 1998 (provided that the right
to terminate this Agreement under this clause (i) shall not be
available to any party whose breach of any representation or warranty
or failure to fulfill any covenant or agreement under this Agreement
has been the cause of or resulted in the failure of the Arrangement to
occur on or before such date); (ii) any court of competent
jurisdiction, or some other governmental body or regulatory authority
shall have issued a permanent order, decree or ruling or taken any
other action restraining, enjoining or otherwise prohibiting the
Arrangement; (iii) the Taro Common Shareholders shall not approve the
Arrangement at the Taro Shareholders Meeting or at any adjournment
thereof; or (iv) in the opinion of the directors of Taro, acting in
good faith and upon the advice of their financial and legal advisors,
the directors' fiduciary duties under applicable law would require
such termination.
(c) by Taro if (i) EVI or TAL shall have failed to comply
in any material respect with any of the covenants or agreements
contained in this Agreement to be complied with or performed by EVI or
TAL at or prior to such date of termination (provided such breach has
not been cured within 30 days following receipt by TAL of written
notice from Taro of such breach and is existing at the time of
termination of this Agreement); or (ii) any representation or warranty
of EVI or TAL contained in this Agreement shall not be true in all
respects when made (provided such breach has not been cured within 30
days following receipt by EVI and TAL of written notice from Taro of
such breach and is existing at the time of termination of this
Agreement) or on and as of the Effective Date as if made on and as of
the Effective Date (except to the extent it relates to a particular
date), except for such failures to be so true and correct which would
not individually or in the aggregate, reasonably be expected to have a
TAL MAE, assuming the effectiveness of the Arrangement.
(d) by EVI or TAL if (i) Taro shall have failed to comply
in any material respect with any of the covenants or agreements
contained in this Agreement to be complied with or performed by Taro
at or prior to such date of termination (provided such breach has not
been cured within 30 days following receipt by Taro of written notice
from EVI or TAL of such breach and is existing at the time of
termination of this Agreement); (ii) any representation or warranty of
Taro contained in this Agreement shall not be true in all respects
when made (provided such breach has not been cured within 30 days
following receipt by Taro of written notice from EVI or TAL of such
breach and is existing at the time of termination of this Agreement)
or on and as of the Effective Date as if made on and as of the
Effective Date (except to the extent it relates to a particular date),
except for such failures to be so true and correct which would not
individually or in the aggregate, reasonably be expected to have a
Taro MAE assuming the effectiveness of the Arrangement; or (iii) the
Board of Directors of Taro withdraws, modifies or changes the
Recommendation in a manner adverse to TAL or shall have resolved to do
any of the foregoing.
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7.2 EFFECT OF TERMINATION. In the event of termination of this
Agreement by EVI, TAL or Taro as provided in Section 7.1, this Agreement shall
forthwith become void and there shall be no liability or obligation on the part
of EVI, TAL, 759572 or Taro, except (i) with respect to Sections 5.5 and 7.3
and this Section 7.2 and (ii) such termination shall not relieve any party
hereto for any intentional breach prior to such termination by a party hereto
of any of its representations or warranties or of any of its covenants or
agreements set forth in this Agreement.
7.3 FEE AND EXPENSE REIMBURSEMENTS.
(a) In the event that (x) any Person shall have made an
Acquisition Proposal and thereafter this Agreement is terminated by
TAL pursuant to Section 7.1(d)(iii) or (y) the Board of Directors of
Taro shall have withdrawn or modified in a manner adverse to EVI or
TAL the Recommendation or shall have recommended an Acquisition
Proposal to the Taro Common Shareholders and EVI and TAL shall have
terminated this Agreement pursuant to Section 7.1(d)(iii), then Taro
shall promptly, but in no event later than two days after such
termination, pay TAL a fee of $1.0 million (the "Taro Payment") or (z)
this Agreement is terminated for any reason other than those set forth
in clauses (x) or (y) above or in Section 7.1(c), and if within 12
months thereafter any Acquisition Proposal shall have been
consummated, then Taro shall promptly, but in no event later than two
days after consummation of any such transaction, pay TAL the Taro
Payment. Any amount payable hereunder shall be payable by wire
transfer of same day funds. Taro acknowledges that the agreements
contained in this Section 7.3(a) are an integral part of the
transactions contemplated in this Agreement, and that, without these
agreements, EVI and TAL would not enter into this Agreement;
accordingly, if Taro fails to promptly pay the amount due pursuant to
this Section 7.3(a), and, in order to obtain such payment, EVI or TAL
commences a suit that results in a judgment against Taro for the fee
set forth in this Section 7.3(a), Taro shall pay to EVI and TAL their
costs and expenses (including attorneys' fees) in connection with such
suit, together with interest on the amount of the fee at the rate of
12% per annum.
(b) In the event that Taro shall have terminated this
Agreement pursuant to Section 7.1(c), such termination shall be
without prejudice to any other remedy available to Taro in respect of
damages to Taro arising in connection with such termination.
7.4 WAIVER AND AMENDMENT. Any provision of this Agreement may be
waived at any time by the party that is, or whose shareholders are, entitled to
the benefits thereof. This Agreement may not be amended or supplemented at any
time, except by an instrument in writing signed on behalf of each party hereto,
provided that after this Agreement has been approved and adopted by the Taro
Common Shareholders, this Agreement may only be amended without further
authorization if such amendment is not prejudicial to the Taro Common
Shareholders and is not otherwise prohibited by law. The waiver by any party
hereto of any condition or of a breach of another provision of this Agreement
shall not operate or be construed as a waiver of any other condition or
subsequent breach. The waiver by any party hereto of any of the conditions
precedent to its obligations under this Agreement shall not preclude it from
seeking redress for breach of this Agreement other than with respect to the
condition so waived.
7.5 NONSURVIVAL OF REPRESENTATIONS AND WARRANTIES. The
representations and warranties in this Agreement shall remain in effect only
until the Effective Date, at which time they will expire.
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7.6 PUBLIC STATEMENTS. Taro and TAL agree to consult with each
other prior to issuing any press release or otherwise making any public
statement with respect to the transactions contemplated hereby.
7.7 ASSIGNMENT. This Agreement shall inure to the benefit of and
will be binding upon the parties hereto and their respective legal
representatives, successors and permitted assigns. Notwithstanding anything to
the contrary contained in this Agreement, EVI shall have the right to
contribute the capital stock of TAL on or before the Effective Date to a direct
or indirect wholly-owned subsidiary of EVI.
7.8 NOTICES. All notices, requests, demands, claims and other
communications which are required to be or may be given under this Agreement
shall be in writing and shall be deemed to have been duly given if (i)
delivered in person or by courier, (ii) sent by facsimile transmission, answer
back requested, or (iii) mailed, certified first class mail, postage prepaid,
return receipt requested, to the parties hereto at the following addresses:
if to Taro:
Taro Industries Limited
#7, 3401 -- 19th Street N.E.
Calgary, Alberta, Canada T2E 6S8
Attn: Frank J. Killoran
Facsimile: 403.291.2170
with a copy to:
Bennett Jones Verchere
4500 Bankers Hall East
855 -- 2nd Street S.W.
Calgary, Alberta, Canada T2P 4K7
Attn: William S. Rice
Facsimile: 403.265.7219
if to EVI or TAL:
EVI, Inc.
5 Post Oak Park, Suite 1760
Houston, Texas, U.S.A. 77027
Attn: Bernard J. Duroc-Danner
Facsimile: 713.297.8488
with a copy to:
Fulbright & Jaworski L.L.P.
1301 McKinney, Suite 5100
Houston, Texas, U.S.A. 77010-3095
Attn: Curtis W. Huff
Facsimile: 713.651.5246
and
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Milner Fenerty
2900, 10180 -- 101 Street
Manulife Place
Edmonton, Alberta, Canada T5J 3V5
Attn: Richard A. Miller
Facsimile: 403.423.7276
or to such other address as any party shall have furnished to the other by
notice given in accordance with this Section 7.8. Such notices shall be
effective, (i) if delivered in person or by courier, upon actual receipt by the
intended recipient, (ii) if sent by facsimile transmission, when the answer
back is received, or (iii) if mailed, upon the earlier of five days after
deposit in the mail and the date of delivery as shown by the return receipt
therefor.
7.9 GOVERNING LAW. All questions arising out of this Agreement
and the rights and obligations created herein, or its validity, existence,
interpretation, performance or breach shall be governed by the laws of the
Province of Alberta and the laws of Canada applicable therein.
7.10 SEVERABILITY. If any term, provision, covenant or restriction
of this Agreement is held by a court of competent jurisdiction to be invalid,
void or unenforceable, the remainder of the terms, provision, covenants and
restrictions of this Agreement shall continue in full force and effect and
shall in no way be affected, impaired or invalidated.
7.11 COUNTERPARTS. This Agreement may be executed in counterparts,
each of which shall be an original, but all of which together shall constitute
one and the same agreement.
7.12 ENTIRE AGREEMENT: THIRD PARTY BENEFICIARIES. This Agreement,
the Plan of Arrangement and the Other Agreements constitute the entire
agreement and supersede all other prior agreements and understandings, both
oral and written, among the parties or any of them, with respect to the subject
matter hereof and neither this nor any document delivered in connection with
this Agreement confers upon any Person not a party hereto any rights or
remedies hereunder.
7.13 DISCLOSURE LETTERS.
(a) The Taro Disclosure Letter, executed by Taro as of
the date hereof, and delivered to TAL on the date hereof, contains all
disclosure required to be made by Taro under the various terms and
provisions of this Agreement. Each item of disclosure set forth in
the Taro Disclosure Letter specifically refers to the Article and
Section of the Agreement to which such disclosure responds, and shall
not be deemed to be disclosed with respect to any other Article or
Section of the Agreement.
(b) The TAL Disclosure Letter, executed by TAL as of the
date hereof, and delivered to Taro on the date hereof, contains all
disclosure required to be made by TAL under the various terms and
provisions of this Agreement. Each item of disclosure set forth in
the TAL Disclosure Letter specifically refers to the Article and
Section of the Agreement to which such disclosure responds, and shall
not be deemed to be disclosed with respect to any other Article or
Section of the Agreement.
7.14 CURRENCY. References to "$" or "dollars" in this Agreement
are to the lawful currency of Canada unless otherwise specified.
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7.15 NUMBER AND GENDER. In this Agreement, words importing the
singular number only shall include the plural and vice versa, and words
importing any gender shall include all genders.
7.16 DIVISIONS, HEADINGS, ETC.. Division of this Agreement into
articles, sections, subsections and paragraphs and the insertion of headings
are for convenience of reference only and shall not affect the construction or
interpretation hereof. The terms "HEREIN", "HEREOF", "HEREUNDER" and similar
expressions refer to this Agreement and not to any particular article, section,
subsection, paragraph or other portion hereof and include any exhibits or
appendices hereto and any agreement or instruments supplementary or ancillary
hereto.
7.17 DATE OF ANY ACTION. In the event that any date on which an
action is required or permitted to be taken hereunder is not a Business Day,
such action shall be required or permitted to be taken on or by the next
succeeding day that is a Business Day.
[SIGNATURES ON FOLLOWING PAGE]
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IN WITNESS WHEREO, each of the parties caused this Agreement to be
executed on its behalf by its officers thereunto duly authorized, all as of the
date first above written.
EVI, INC.
By: /s/ JAMES G. KILEY
-------------------------------------------
JAMES G. KILEY
Vice President, Chief Financial Officer,
Secretary and Treasurer
756745 ALBERTA LTD.
By: /s/ JAMES G. KILEY
-------------------------------------------
JAMES G. KILEY
Vice President, Secretary and
Treasurer
TARO INDUSTRIES LIMITED
By: /s/ FRANK J. KILLORAN
-------------------------------------------
FRANK J. KILLORAN
President and Chief Executive Officer
By: /s/ T. JERROLD JACKSON
-------------------------------------------
T. JERROLD JACKSON
Senior Vice President and
Chief Financial Officer
759572 ALBERTA LTD.
By: /s/ TERRY J. OWEN
-------------------------------------------
TERRY J. OWEN
President
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As permitted by Item 601(b)(2) of Regulation S-K, the Company has not
filed any schedules or exhibits with this Exhibit No. 2.4. Listed below is a
brief description of the omitted schedules and exhibits. The Company agrees to
furnish supplementally a copy of any of such omitted schedules and exhibits to
the Commission upon request.
Exhibits
1 Plan of Arrangement
Schedules
3.2(a) Good Standing of Taro
3.2(b)(iii) Taro's Subsidiaries
3.2(d) Conflict with Instruments to which Taro is a Party
3.2(e) Liabilities of Taro
3.2(f) Absence of Certain Changes
3.2(g) Litigation
3.2(i) Employee Benefit Plans
3.2(j) Taxes
3.2(k) Environmental Matters
3.2(l) Severance Payments
3.2(m) Shareholder Agreements
3.2(p) Contracts
3.2(r) Intellectual Property
3.2(s) Insurance Policies
3.2(t) Loans of Taro