<PAGE> 1
As filed with the Securities and Exchange Commission on January 15, 1998
Registration No. 333-
--------
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
--------------------
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
--------------------
EVI, INC.
(Exact name of registrant as specified in its charter)
DELAWARE 04-2515019
(State or other jurisdiction of (I.R.S Employer
incorporation or organization) Identification No.)
5 POST OAK PARK, SUITE 1760
HOUSTON, TEXAS 77027-3415
(Address of Principal Executive Offices) (Zip Code)
TARO INDUSTRIES LIMITED STOCK OPTION PLAN
(Full title of the plan)
BERNARD J. DUROC-DANNER
EVI, INC.
5 POST OAK PARK, SUITE 1760
HOUSTON, TEXAS 77027-3415
(Name and address of agent for service)
(713) 297-8400
(Telephone number, including area code, of agent for service)
-----------------------------
With Copy to:
Curtis W. Huff
Fulbright & Jaworski L.L.P.
1301 McKinney, Suite 5100
Houston, Texas 77010-3095
(713) 651-5151
-----------------------------
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
==================================================================================================================================
<S> <C> <C> <C> <C>
Proposed Proposed maximum Amount of
Amount to be maximum offering aggregate offering registration
Title of securities to be registered registered price per share(1) price(1) fee
- - - - - - - - - - - - - - - ------------------------------------ --------------- ----------------- ------------------ ----------------
Common Stock, $1.00 par value . . 34,800 shares(2) $38.94 $1,355,112 $400
==================================================================================================================================
</TABLE>
(1) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(c) under the Securities Act of 1933 and based upon
the average of the high and low sales prices of a share of Common Stock
as reported by the New York Stock Exchange, Inc. on January 12, 1998.
(2) Includes an indeterminable number of shares of Common Stock issuable as
a result of anti-dilution provisions.
================================================================================
<PAGE> 2
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents have been filed by the Company with the
Commission and are incorporated herein by reference and shall be deemed a part
hereof:
1. The Company's Annual Report on Form 10-K for the year ended
December 31, 1996, as amended by Amendment No. 1 to the Annual Report on Form
10-K on Form 10-K/A;
2. The Company's Quarterly Report on Form 10-Q for the quarter
ended March 31, 1997;
3. The Company's Quarterly Report on Form 10-Q for the quarter
ended June 30, 1997;
4. The Company's Quarterly Report on Form 10-Q for the quarter
ended September 30, 1997;
5. The Company's Current Report on Form 8-K dated December 10,
1996, as amended by Amendment No. 1 to the Current Report on Form 8-K on Form
8-K/A dated January 23, 1997;
6. The Company's Current Report on Form 8-K dated March 17,
1997;
7. The Company's Current Report on Form 8-K dated April 25,
1997;
8. The Company's Current Report on Form 8-K dated May 1, 1997
as amended by Amendment No. 1 to the Current Report on Form 8-K on Form 8-K/A
dated January 14, 1998;
9. The Company's Current Report on Form 8-K dated August 25,
1997;
10. The Company's Current Report on Form 8-K dated October 20,
1997, as amended by Amendment No. 1 to the Current Report on Form 8-K on Form
8-K/A dated October 21, 1997;
11. The Company's Current Report on Form 8-K dated October 24,
1997;
12. The Company's Current Report on Form 8-K dated November 5,
1997;
13. The Company's Current Report on Form 8-K dated November 12,
1997;
14. The Company's Current Report on Form 8-K dated November 18,
1997;
15. The Company's Current Report on Form 8-K dated November 24,
1997;
16. The Company's Current Report on Form 8-K dated December 2,
1997;
17. The Company's Current Report on Form 8-K dated December 31,
1997; and
18. The description of the Common Stock contained in the
Company's Registration Statement on Form 8-A (filed May 19, 1994) and as
amended by the Company's
II-1
<PAGE> 3
Registration Statement on Form S-3 (Registration No. 333-12367), including any
amendment or report filed for the purpose of updating such description.
All documents filed by the Registrant pursuant to Sections 13(a),
13(c), 14 and 15(d) of the Securities Exchange Act of 1934 subsequent to the
date of the filing hereof and prior to the filing of a post-effective amendment
which indicates that all securities offered have been sold or which deregisters
all securities then remaining unsold, shall be deemed to be incorporated by
reference in this Registration Statement and to be a part hereof from the date
of filing of such documents.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Certain legal matters in connection with the securities registered
hereby are being passed upon for the Registrant by Fulbright & Jaworski L.L.P.,
Houston, Texas. Uriel E. Dutton, a director of the Registrant, is a partner in
the firm of Fulbright & Jaworski L.L.P. Mr. Dutton currently holds options to
purchase 70,000 shares of Common Stock, which options were granted to him
pursuant to the Registrant's Non-Employee Director Stock Option Plan.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Under Delaware law, a corporation may include provisions in its
certificate of incorporation that will relieve its directors of monetary
liability for breaches of their fiduciary duty to the corporation, except under
certain circumstances, including a breach of the director's duty of loyalty,
acts or omissions of the director not in good faith or which involve
intentional misconduct or a knowing violation of law, the approval of an
improper payment of a dividend or an improper purchase by the corporation of
stock or any transaction from which the director derived an improper personal
benefit. The Company's Restated Certificate of Incorporation provides that the
Company's directors are not liable to the Company or its stockholders for
monetary damages for breach of their fiduciary duty, subject to the described
exceptions specified by Delaware law.
Section 145 of the Delaware General Corporation Law grants to the
Company the power to indemnify each officer and director of the Company against
liabilities and expenses incurred by reason of the fact that he is or was an
officer or director of the Company if he acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the
Company and, with respect to any criminal action or proceeding, had no
reasonable cause to believe his conduct was unlawful. The By-laws of the
Company provide for indemnification of each officer and director of the Company
to the fullest extent permitted by Delaware law. Messrs. David J. Butters,
Eliot M. Fried and Robert B. Millard, employees of Lehman Brothers Inc.
("Lehman"), constitute three of the eight members of the Board of Directors of
the Company. Under the restated certificates of incorporation, as amended to
date, of Lehman and its parent, Lehman Brothers Holdings Inc. ("Holdings"),
both Delaware corporations, Messrs. Butters, Fried and Millard, in their
capacity as directors of the Company, are to be indemnified by Lehman and
Holdings to the fullest extent permitted by Delaware law. Messrs. Butters,
Fried and Millard are serving as directors of the Company at the request of
Lehman and Holdings.
II-2
<PAGE> 4
Section 145 of the Delaware General Corporation Law also empowers
the Company to purchase and maintain insurance on behalf of any person who is
or was an officer or director of the Company against liability asserted against
or incurred by him in any such capacity, whether or not the Company would have
the power to indemnify such officer or director against such liability under
the provisions of Section 145. The Company has purchased and maintains a
directors' and officers' liability policy for such purposes. Messrs. Butters,
Fried and Millard are insured against certain liabilities which they may incur
in their capacity as directors pursuant to insurance maintained by Holdings.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
4.1 Restated Certificate of Incorporation of the Company, as
amended (incorporated by reference to Exhibit No. 3.1 to
Form 8-K, File 1-13086, dated May 13, 1997).
4.2 By-laws of the Company, as amended (incorporated by
reference to Exhibit No. 3.2 to Form 10-K, File 1-13086,
filed March 1, 1994).
4.3 Amended and Restated Credit Agreement among Energy Ventures,
Inc., the Subsidiary Guarantors defined therein, the
Lenders defined therein and The Chase Manhattan Bank dated
as of December 6, 1996, including the form of Note
(incorporated by reference to Exhibit No. 4.1 to Form 8-K,
File 1-13086, filed December 26, 1996).
*4.4 First Amendment to Amended and Restated Credit Agreement
dated as of August 8, 1997, by and between EVI, Inc., the
Subsidiary Guarantors defined therein and The Chase
Manhattan Bank and the other lenders defined therein.
4.5 Second Amendment to Amended and Restated Credit Agreement
by and between EVI, Inc., the Subsidiary Guarantors defined
therein and The Chase Manhattan Bank and the other lenders
defined therein dated as of October 23, 1997 (incorporated
by reference to Exhibit No. 4.2 to Form 8-K, File 1-13086,
filed December 31, 1997).
4.6 Indenture dated March 15, 1994, among Energy Ventures, Inc.,
as Issuer, the Subsidiary Guarantors party thereto, as
Guarantors, and Chemical Bank, as Trustee (incorporated by
reference to Form 8-K, File 1-13086, filed April 5, 1994).
4.7 Specimen 10 1/4% Senior Note due 2004 of Energy Ventures,
Inc. (incorporated by reference to Form 8-K, File 1-13086,
filed April 5, 1994).
4.8 First Supplemental Indenture by and among Energy Ventures,
Inc., Prideco and Chemical Bank, as trustee, dated June 30,
1995 (incorporated by reference to Exhibit No. 4.4 to the
Registration Statement on Form S-3; Registration No.
33-61933).
4.9 Second Supplemental Indenture by and among Energy Ventures,
Inc., EVI Arrow, Inc., EVI Watson, Inc. and The Chase
Manhattan Bank, as trustee, dated effective as of December
6, 1996 (incorporated by reference to Exhibit 4.6 to Form
10-K, File 1-13086, filed March 20, 1997).
4.10 Third Supplemental Indenture by and among EVI, Inc., Ercon,
Inc. and The Chase Manhattan Bank, as trustee, dated
effective as of May 1, 1997 (incorporated by reference to
Exhibit 99.2 to Form 8-K, File 1-13086, filed October 27,
1997).
II-3
<PAGE> 5
<TABLE>
<S> <C>
4.11 Fourth Supplemental Indenture by and among EVI, Inc., XLS
Holding, Inc., XL Systems, Inc. and The Chase Manhattan
Bank, as trustee, dated effective as of August 25, 1997
(incorporated by reference to Exhibit 99.3 to Form 8-K,
File 1-13086, filed October 27, 1997).
4.12 Fifth Supplemental Indenture by and between EVI, Inc. and
The Chase Manhattan Bank dated as of December 12, 1997
(including the Form of Note and Form of Exchange Note)
(incorporated by reference to Exhibit 4.1 to Form 8-K,
File 1-13086, filed December 31, 1997).
4.13 Indenture dated as of October 15, 1997, between EVI, Inc.
and The Chase Manhattan Bank, as Trustee (incorporated by
reference to Exhibit 4.1 to Form 8-K, File 1-13086, filed
November 5, 1997).
4.14 First Supplemental Indenture dated as of October 28, 1997,
between EVI, Inc. and The Chase Manhattan Bank, as Trustee
(including form of Debenture) (incorporated by reference
to Exhibit 4.2 to Form 8-K, File 1-13086, filed November 5,
1997).
*4.15 Taro Industries Limited Stock Option Plan.
*5.1 Opinion of Fulbright & Jaworski L.L.P.
*23.1 Consent of Fulbright & Jaworski L.L.P. (included in
Exhibit 5.1).
*23.2 Consent of Arthur Andersen LLP, with respect to the
financial statements of EVI, Inc.
*23.3 Consent of Arthur Andersen LLP, with respect to the
financial statements of Tubular Corporation of America.
*23.4 Consent of Arthur Andersen LLP, with respect to the
GulfMark Retained Assets' financial statements.
*24.1 Powers of Attorney from certain members of the Board of
Directors of the Company (contained on page II-6).
</TABLE>
- - - - - - - - - - - - - - - -----------------------------------
* Filed herewith.
As permitted by Item 601(b)(4)(iii)(A) of Regulation S-K, the
Registrant has not filed with this Registration Statement certain instruments
defining the rights of holders of long-term debt of the Registrant and its
subsidiaries because the total amount of securities authorized under any of
such instruments does not exceed 10% of the total assets of the Registrant and
its subsidiaries on a consolidated basis. The Registrant agrees to furnish a
copy of any such agreements to the Securities and Exchange Commission upon
request.
ITEM 9. UNDERTAKINGS.
The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this Registration Statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after
the effective date of this Registration Statement (or the most recent
post-effective amendment hereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth in this
Registration Statement. Notwithstanding the foregoing, any increase or
decrease in volume of securities offered (if the total dollar volume of
securities offered would not exceed that which was registered) and any
deviation from the low or high end of the estimated maximum offering range may
be reflected in the form of prospectus filed with the Securities and Exchange
Commission pursuant to Rule 424(b) if, in the aggregate, the changes in
II-4
<PAGE> 6
volume and price represent no more than a 20% change in the maximum aggregate
offering price set forth in the "Calculation of Registration Fee" table in the
effective registration statement; and
(iii) To include any material information with respect to the plan
of distribution not previously disclosed in this Registration Statement or any
material change to such information in this Registration Statement;
Provided, however, that paragraphs (1)(i) and (1)(ii) do not apply if
the information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed with or furnished to the
Securities and Exchange Commission by the Registrant pursuant to Section 13 or
Section 15(d) of the Securities Exchange Act of 1934 that are incorporated by
reference in this Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed to
be a new registration statement relating to the securities offered herein, and
the offering of such securities at that time shall be deemed to be the initial
bona fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering.
The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in this
Registration Statement shall be deemed to be a new registration statement
relating to the securities offered herein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the Registrant pursuant to the foregoing provisions, or otherwise,
the Registrant has been advised that in the opinion of the Securities and
Exchange Commission such indemnification is against public policy as expressed
in the Securities Act of 1933 and is, therefore, unenforceable. In the event
that a claim for indemnification against such liabilities (other than the
payment by the Registrant of expenses incurred or paid by a director, officer
or controlling person of the Registrant in the successful defense of any
action, suit or proceeding) is asserted by such director, officer or
controlling person in connection with the securities being registered, the
Registrant will, unless in the opinion of its counsel the matter has been
settled by controlling precedent, submit to a court of appropriate jurisdiction
the question whether such indemnification by it is against public policy as
expressed in the Securities Act of 1933 and will be governed by the final
adjudication of such issue.
II-5
<PAGE> 7
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing on Form S-8 and has duly caused this
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Houston, State of Texas, on January 15, 1998.
EVI, INC.
By: /s/ Bernard J. Duroc-Danner
----------------------------
Bernard J. Duroc-Danner
President, Chief Executive Officer
and Director
(Principal Executive Officer)
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each individual whose signature
appears below constitutes and appoints Bernard J. Duroc-Danner and James G.
Kiley, or any of them, his true and lawful attorney-in-fact and agent, with
full power of substitution and resubstitution, for him and in his name, place
and stead, in any and all capacities, to sign any and all amendments (including
post-effective amendments) to this Registration Statement, and to file the same
and all exhibits thereto, and all documents in connection therewith, with the
Securities and Exchange Commission, granting said attorney-in-fact and agent,
and any of them, full power and authority to do and perform each and every act
and thing requisite and necessary to be done in and about the premises, as
fully to all intents and purposes as he might or could do in person, hereby
ratifying and confirming all that said attorney-in-fact and agent, or any of
them, or his or their substitute or substitutes, may lawfully do or cause to be
done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
<TABLE>
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Signature Title Date
--------- ----- ----
<S> <C> <C>
/s/ Bernard J. Duroc-Danner President, Chief Executive January 15, 1998
- - - - - - - - - - - - - - - ------------------------------- Officer and Director
Bernard J. Duroc-Danner (Principal Executive Officer)
/s/ James G. Kiley Vice President and January 15, 1998
- - - - - - - - - - - - - - - ------------------------------- Chief Financial Officer
James G. Kiley (Principal Financial Officer)
/s/ Frances R. Powell Vice President, Accounting January 15, 1998
- - - - - - - - - - - - - - - ------------------------------- and Controller
Frances R. Powell (Principal Accounting Officer)
/s/ David J. Butters Director and January 15, 1998
- - - - - - - - - - - - - - - ------------------------------- Chairman of the Board
David J. Butters
/s/ Uriel E. Dutton Director January 15, 1998
- - - - - - - - - - - - - - - -------------------------------
Uriel E. Dutton
/s/ Eliot M. Fried Director January 15, 1998
- - - - - - - - - - - - - - - -------------------------------
Eliot M. Fried
/s/ Sheldon S. Gordon Director January 15, 1998
- - - - - - - - - - - - - - - -------------------------------
Sheldon S. Gordon
/s/ Sheldon B. Lubar Director January 15, 1998
- - - - - - - - - - - - - - - -------------------------------
Sheldon B. Lubar
/s/ Robert B. Millard Director January 15, 1998
- - - - - - - - - - - - - - - -------------------------------
Robert B. Millard
/s/ Robert A. Rayne Director January 15, 1998
- - - - - - - - - - - - - - - -------------------------------
Robert A. Rayne
</TABLE>
II-6
<PAGE> 8
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
Number Exhibit
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<S> <C>
4.1 Restated Certificate of Incorporation of the Company, as
amended (incorporated by reference to Exhibit No. 3.1 to
Form 8-K, File 1-13086, dated May 13, 1997).
4.2 By-laws of the Company, as amended (incorporated by
reference to Exhibit No. 3.2 to Form 10-K, File 1-13086,
filed March 1, 1994).
4.3 Amended and Restated Credit Agreement among Energy Ventures,
Inc., the Subsidiary Guarantors defined therein, the
Lenders defined therein and The Chase Manhattan Bank dated
as of December 6, 1996, including the form of Note
(incorporated by reference to Exhibit No. 4.1 to Form 8-K,
File 1-13086, filed December 26, 1996).
*4.4 First Amendment to Amended and Restated Credit Agreement
dated as of August 8, 1997, by and between EVI, Inc., the
Subsidiary Guarantors defined therein and The Chase
Manhattan Bank and the other lenders defined therein.
4.5 Second Amendment to Amended and Restated Credit Agreement
by and between EVI, Inc., the Subsidiary Guarantors defined
therein and The Chase Manhattan Bank and the other lenders
defined therein dated as of October 23, 1997 (incorporated
by reference to Exhibit No. 4.2 to Form 8-K, File 1-13086,
filed December 31, 1997).
4.6 Indenture dated March 15, 1994, among Energy Ventures, Inc.,
as Issuer, the Subsidiary Guarantors party thereto, as
Guarantors, and Chemical Bank, as Trustee (incorporated by
reference to Form 8-K, File 1-13086, filed April 5, 1994).
4.7 Specimen 10 1/4% Senior Note due 2004 of Energy Ventures,
Inc. (incorporated by reference to Form 8-K, File 1-13086,
filed April 5, 1994).
4.8 First Supplemental Indenture by and among Energy Ventures,
Inc., Prideco and Chemical Bank, as trustee, dated June 30,
1995 (incorporated by reference to Exhibit No. 4.4 to the
Registration Statement on Form S-3; Registration No.
33-61933).
4.9 Second Supplemental Indenture by and among Energy Ventures,
Inc., EVI Arrow, Inc., EVI Watson, Inc. and The Chase
Manhattan Bank, as trustee, dated effective as of December
6, 1996 (incorporated by reference to Exhibit 4.6 to Form
10-K, File 1-13086, filed March 20, 1997).
4.10 Third Supplemental Indenture by and among EVI, Inc., Ercon,
Inc. and The Chase Manhattan Bank, as trustee, dated
effective as of May 1, 1997 (incorporated by reference to
Exhibit 99.2 to Form 8-K, File 1-13086, filed October 27,
1997).
4.11 Fourth Supplemental Indenture by and among EVI, Inc., XLS
Holding, Inc., XL Systems, Inc. and The Chase Manhattan
Bank, as trustee, dated effective as of August 25, 1997
(incorporated by reference to Exhibit 99.3 to Form 8-K,
File 1-13086, filed October 27, 1997).
4.12 Fifth Supplemental Indenture by and between EVI, Inc. and
The Chase Manhattan Bank dated as of December 12, 1997
(including the Form of Note and Form of Exchange Note)
(incorporated by reference to Exhibit 4.1 to Form 8-K,
File 1-13086, filed December 31, 1997).
4.13 Indenture dated as of October 15, 1997, between EVI, Inc.
and The Chase Manhattan Bank, as Trustee (incorporated by
reference to Exhibit 4.1 to Form 8-K, File 1-13086, filed
November 5, 1997).
4.14 First Supplemental Indenture dated as of October 28, 1997,
between EVI, Inc. and The Chase Manhattan Bank, as Trustee
(including form of Debenture)
</TABLE>
<PAGE> 9
<TABLE>
<S> <C>
(incorporated by reference to Exhibit 4.2 to Form 8-K,
File 1-13086, filed November 5, 1997).
*4.15 Taro Industries Limited Stock Option Plan.
*5.1 Opinion of Fulbright & Jaworski L.L.P.
*23.1 Consent of Fulbright & Jaworski L.L.P. (included in
Exhibit 5.1).
*23.2 Consent of Arthur Andersen LLP, with respect to the
financial statements of EVI, Inc.
*23.3 Consent of Arthur Andersen LLP, with respect to the
financial statements of Tubular Corporation of America.
*23.4 Consent of Arthur Andersen LLP, with respect to the
GulfMark Retained Assets' financial statements.
*24.1 Powers of Attorney from certain members of the Board of
Directors of the Company (contained on page II-6).
</TABLE>
- - - - - - - - - - - - - - - ------------------------------------
* Filed herewith.
As permitted by Item 601(b)(4)(iii)(A) of Regulation S-K, the
Registrant has not filed with this Registration Statement certain instruments
defining the rights of holders of long-term debt of the Registrant and its
subsidiaries because the total amount of securities authorized under any of
such instruments does not exceed 10% of the total assets of the Registrant and
its subsidiaries on a consolidated basis. The Registrant agrees to furnish a
copy of any such agreements to the Securities and Exchange Commission upon
request.
<PAGE> 1
EXHIBIT 4.4
FIRST AMENDMENT
TO
AMENDED AND RESTATED CREDIT AGREEMENT
THIS FIRST AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT (this
"Amendment") dated as of August 8, 1997, is among EVI, INC., a Delaware
corporation formerly known as Energy Ventures, Inc. (the "Company"), the
Subsidiary Guarantors (as defined below), the banks and other financial
institutions listed on the signature pages under the heading "Lenders"
(collectively, the "Lenders"), and THE CHASE MANHATTAN BANK, as agent (in such
capacity, the "Agent") for the Lenders.
PRELIMINARY STATEMENT
(a) The Company, EVI Oil Tools, Inc., a Delaware corporation;
Grant Prideco, Inc., a Delaware corporation ("Grant Prideco"); Prideco
Holdings, Inc., a Delaware corporation; Channelview Real Property, Inc., a
Delaware corporation; EVI Management Inc., a Delaware corporation; EVI Arrow,
Inc., a Delaware corporation; and EVI Watson Packers, Inc., a Delaware
corporation (collectively, the "Subsidiary Guarantors"), the Lenders and the
Agent entered into an Amended and Restated Credit Agreement dated as of
December 6, 1996 (the "Credit Agreement").
(b) The Company proposes to transfer substantially all of the
business and assets of Grant Prideco into a limited partnership to be formed as
a Wholly Owned Restricted Subsidiary of the Company ("Grant L.P."), of which a
corporation newly formed as a Wholly Owned Restricted Subsidiary of the Company
("Newco") will own some portion of the partner interests and Grant Prideco
and/or one or more other Wholly Owned Restricted Subsidiaries of the Company
will own the remaining partner interests (the transactions described above
being, collectively, the "Grant Prideco Reorganization").
(c) The Company also has requested that Highland/Corod, Inc.
("Highland/Corod"), be permitted to incur up to 50,000,000 Canadian dollars (or
the Dollar equivalent thereof) of
<PAGE> 2
unsecured indebtedness that would be guaranteed by the Company and the material
subsidiaries of Highland/Corod.
(d) The Company has requested that the Credit Agreement be amended
to permit the increased indebtedness of Highland/Corod and, upon satisfaction
in full of all the "Conditions Subsequent", as defined in the Credit Agreement,
as amended hereby, the Grant Prideco Reorganization.
NOW, THEREFORE, in consideration of the premises and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged by the parties hereto, the Company, the Subsidiary Guarantors, the
Lenders and the Agent hereby agree as follows:
SECTION 1. Amendments to Section 1.01 of the Credit Agreement. (a)
The definitions of the terms "Grant Prideco Eligible Inventory," "Highland
Corod," and "Highland Corod_Indebtedness") contained in Section 1.01 of the
Credit Agreement are hereby amended in their entirety to read as follows:
"Grant Prideco Eligible Inventory' means, until consummation
of the Grant Prideco Reorganization in accordance with the terms
hereof, the Eligible Inventory owned by Grant Prideco, and thereafter
means the Eligible Inventory owned by Grant L.P."
"Highland Corod' means Highland/Corod, Inc., a corporation
organized under the laws of the Province of Alberta, Canada."
"Highland Corod Indebtedness' means the unsecured
indebtedness of Highland Corod to one or more lenders in a principal
amount not to exceed 50,000,000 Canadian dollars (or the Dollar
equivalent thereof) at any time outstanding."
(b) Clause (b) of the definition of the term "Permitted
Indebtedness" in Section 1.01 of the Credit Agreement is hereby amended in its
entirety to read as follows:
"(b) the Highland Corod Indebtedness and any guarantee
thereof by the Company or any Subsidiary of Highland Corod;".
(c) Section 1.01 of the Credit Agreement is hereby amended by
adding the following defined terms:
-2-
<PAGE> 3
"Conditions Subsequent' means the receipt by the Agent of the
following, each in form and substance reasonably satisfactory to it:
(i) Subsidiary Guarantor Counterparts executed by
(A) Grant L.P. , and (B) to the extent such Person is not
already a Subsidiary Guarantor, each Grant L.P. Partner and
each other Subsidiary of the Company that directly or
indirectly owns Capital Stock of Grant L.P. (the Persons
referred to in this subclause (B), hereinbelow referred to
collectively in this definition as the 'Grant L.P. Owners');
(ii) Subsidiary Guarantors Security Agreements
executed by Grant L. P. and, to the extent such Person is not
already a Subsidiary Guarantor, each Grant L. P. Owner;
(iii) an amendment to the Company Pledge Agreement
executed by the Company pursuant to which the Company pledges
to the Agent the Capital Stock owned by it in (A) Newco, and
(B) to the extent not already pledged, each Grant L.P. Owner;
(iv) a Subsidiary Guarantors Pledge Agreement, or
an amendment to an existing Subsidiary Guarantors Pledge
Agreement, executed by each Grant L.P. Owner pursuant to
which such Grant L.P. Owner pledges to the Agent the Capital
Stock owned by it in (A) Grant L.P., and (B) to the extent not
already pledged, each Grant L.P. Owner (to the extent, in each
case, that such Capital Stock referred to in subclauses (A)
and (B) constitutes a 'security', as defined in Section
8-102(1)(c) of the UCC);
(v) an amendment to each Subsidiary Guarantors
Security Agreement (other than those referred to in clause
(ii) above) executed by each Grant L.P. Owner pursuant to
which such Grant L.P. Owner grants to the Agent a security
interest in the Capital Stock owned by it in (A) Grant L.P.,
and (B) each Grant L.P. Owner (to the extent, in each case,
that such Capital Stock referred to in subclauses (A) and (B)
does not constitute a 'security', as defined in Section
8-102(1)(c) of the UCC;
(The documents referred to in the preceding clauses (i) through (v)
are hereinbelow referred to in this definition as the 'Reorganization
Documents'.)
(vi) letters from CT Corporation System, Inc.,
evidencing the obligation of CT Corporation System, Inc., to
accept service of process in the State of New York on behalf
of Grant L.P. and, to the extent not previously delivered to
the Agent and continuing in full force and effect, each Grant
L.P. Owner;
(vii) a favorable, signed opinion addressed to the
Agent and the Lenders from Fulbright & Jaworski L.L.P.,
counsel to Newco, the other Grant L.P. Owners and Grant L.P.;
(viii) a certificate of an officer and of the
secretary or an assistant secretary of each Grant L.P. Owner
that is a corporation, or of the general partner (or, if more
than one, the managing general partner) of each Grant L.P.
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<PAGE> 4
Owner that is a partnership and of Grant L.P., in each case
certifying, inter alia, (A) true and complete copies of, as
applicable, the articles or certificate of incorporation, or
partnership agreement, as amended and in effect, of such Person and of
any partnership on behalf of which it is executing any Reorganization
Documents, its bylaws, if any, as amended and in effect, and the
resolutions adopted by the Board of Directors (or a duly authorized
committee thereof) of such Person or of its general partner (or, if
more than one, its managing general partner (1) authorizing the
execution, delivery and performance of the Reorganization Documents to
which such Person is a party, (2) approving the forms of the
Reorganization Documents to which it is a party, (3) authorizing
officers of such Person to execute and deliver such Reorganization
Documents and any related documents, including any agreement
contemplated by this Agreement or the First Amendment, (B) the
incumbency and specimen signatures of the officers of such Person
executing any documents on its behalf and (C)(1) that the
representations and warranties made by such Person in any
Reorganization Document to which such Person is a party and which will
be delivered at or prior to the effective date of the Grant Prideco
Reorganization are true and correct in all material respects, (2) the
absence of any proceedings for the dissolution or liquidation of such
Person and (3) the absence of the occurrence and continuance of any
Default or Event of Default;
(ix) certificates of appropriate public officials as to
the existence, good standing and qualification to do business as a
foreign corporation or limited partnership, as applicable, of each
Grant L.P. Owner, and of Grant L.P., in each jurisdiction in which
the ownership of its properties or the conduct of its business
requires such qualifications and where the failure to so qualify
would, individually or collectively, have a Material Adverse Effect;
(x) If and to the extent then certificated, certificates
evidencing all of the shares of Capital Stock required to be pledged
pursuant to any Reorganization Document, or any Loan Document amended
by a Reorganization Document (which, together with the Capital Stock,
if any, referred to in clause (v) above, shall constitute 100% of the
shares of issued and outstanding Capital Stock of all Grant L.P.
Owners and of Grant L.P.), together with related stock powers executed
in blank by the owner thereof.
(xi) Uniform Commercial Code financing statements, or
proper notices, statements or other instruments in respect thereof, in
a form and completed to permit them to be duly recorded, published,
registered and filed in all such places as is required by applicable
law to grant to the Agent a first priority security interest in the
Collateral pledged pursuant to the Reorganization Documents, subject
only to Permitted Collateral Liens.
(xii) Reports of Uniform Commercial Code searches, tax
searches and judgment reports of the appropriate records of each state
in which each Grant L.P. Owner or Grant L.P. has assets or an office,
dated as of a then recent date; and
(xiii) Such other documents and instruments, if any, as the
Agent may reasonably request."
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<PAGE> 5
"'First Amendment' means the First Amendment to Amended and
Restated Credit Agreement, dated as of August 8, 1997, among the
Company, the then existing Subsidiary Guarantors, the Lenders and the
Agent."
"'Grant L.P.' means a limited partnership to be formed by the
Company and to constitute a Wholly-Owned Restricted Subsidiary of the
Company."
"'Grant L.P. Partners' means each of (i) Newco, (ii) Grant
Prideco if it shall own any general partner or limited partner
interests in Grant L.P., and (iii) each other owner of any partner
interests in Grant L.P."
"'Newco' means a Wholly-Owned Restricted Subsidiary of the
Company to be formed by the Company to own certain of the partner
interests in Grant L.P."
"'Grant Prideco Reorganization' means collectively (i) the
creation by the Company of Newco, (ii) the creation of Grant L.P.,
(iii) the issuance by Grant L.P. of all its general partner and
limited partner interests to Grant L.P. Partners, each of which is a
Wholly-Owned Restricted Subsidiary of the Company (and to no other
Persons), and (iv) the transfer by Grant Prideco of all of its
operating assets and liabilities to Grant L.P. other than assets or
contracts which by their terms would be adversely affected if Grant
Prideco did not retain them."
(d) Clause (a) of the definition of the term "Permitted Liens" is
hereby amended in its entirety to read as follows:
"Liens existing on the Execution Date and listed on Schedule 1.01B;".
SECTION 2. Amendments to Article VI of the Credit Agreement. (a)
Section 6.01 of the Credit Agreement is hereby amended by adding the phrase "or
partnership" after the word "corporation" in clause (a) of that Section.
(b) Section 6.02 of the Credit Agreement is hereby amended by
adding the phrase "or partnership" after the word "corporate" in the first
sentence of that Section.
SECTION 3. Amendment to Section 8.10 of the Credit Agreement. The
first sentence of Section 8.10 of the Credit Agreement is hereby amended in its
entirety to read as follows:
"The Company will not, and will not permit any Restricted
Subsidiary to, directly or indirectly, conduct any business or enter
into, renew, extend or permit to exist any transaction including the
purchase, sale, lease or exchange of any assets or the rendering of
any service or series of related transactions with any Affiliate of
the Company or any holder of 5% or more of the Company's Capital Stock
(other than a Wholly Owned Restricted Subsidiary or employee benefit
plan or plan trust) (an "Affiliate Transaction") on terms that are
less favorable to the Company or such Restricted Subsidiary, as the
case may be, than would be available in a comparable arm's length
transaction with a Person who is not an Affiliate or 5% stockholder of
the
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<PAGE> 6
Company or such Restricted Subsidiary, except for (i) a sale to
Alberta of the capital stock of Alberta, (ii) transfers of assets and
licenses of technology permitted under Section 8.02 (d)(iv)(A) or (B),
and (iii) upon satisfaction in full of all the Conditions Subsequent,
the Grant Prideco Reorganization."
SECTION 4. Conditions to Effectiveness. This Amendment shall become
effective when, and only when, the following conditions have been fulfilled:
(a) the Company, the Subsidiary Guarantors and the Majority
Lenders shall have executed a counterpart of this Amendment;
(b) the Agent shall have executed a counterpart of this Amendment
and shall have received counterparts of this Amendment executed by the Company,
the Subsidiary Guarantors and the Majority Lenders;
(c) the Agent shall have received a favorable, signed opinion
addressed to the Agent and the Lenders from Fulbright & Jaworski L.L.P.,
counsel to the Company; and
(d) the Company shall have delivered to the Agent such other
documents and instruments, if any, as it may reasonably request.
SECTION 5. Representations and Warranties True; No Default or Event
of Default. The Company and the Subsidiary Guarantors hereby represent and
warrant to the Agent and the Lenders that after giving effect to the execution
and delivery of this Amendment (a) the representations and warranties set forth
in the Credit Agreement are true and correct on the date hereof as though made
on and as of such date except for any such representations and warranties as
are by their terms limited to a specific earlier date (in which case such
representations and warranties shall have been true and correct on and as of
such earlier date), and (b) no Default or Event of Default has occurred and is
continuing.
SECTION 6. Reference to the Credit Agreement and Effect on the Notes.
(a) Upon the effectiveness of this Amendment, each reference in
the Credit Agreement to "this Agreement," "hereunder," "herein" or words of
like import shall mean and be a reference to the Credit Agreement, as amended
and affected hereby.
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<PAGE> 7
(b) Upon the effectiveness of this Amendment, each reference in
the Notes and the other Loan Documents to "the Credit Agreement" shall mean and
be a reference to the Credit Agreement, as amended and affected hereby.
(c) Upon the effectiveness of this Amendment, each reference in
the Credit Agreement, the Notes and the other Loan Documents to the "Grant
Prideco Eligible Inventory," "Highland Corod" and "Highland Corod Indebtedness"
shall mean and be a reference to such terms as modified pursuant to Section 1.
(d) The Credit Agreement, the Notes, and the other Loan Documents,
as amended and affected hereby, shall remain in full force and effect and are
hereby ratified and confirmed.
SECTION 7. GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY, AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK
AND APPLICABLE FEDERAL LAW AND SHALL BE BINDING UPON THE COMPANY, THE
SUBSIDIARY GUARANTORS, THE LENDERS AND THE AGENT AND THEIR RESPECTIVE
SUCCESSORS AND ASSIGNS.
SECTION 8. Descriptive Headings. The section headings appearing in
this Amendment have been inserted for convenience only and shall be given no
substantive meaning or significance whatever in construing the terms and
provisions of this Amendment.
SECTION 9. FINAL AGREEMENT OF THE PARTIES. THIS AMENDMENT, THE
CREDIT AGREEMENT AND THE OTHER LOAN DOCUMENTS REPRESENT THE FINAL AGREEMENT OF
THE LOAN PARTIES, THE LENDERS AND THE AGENT WITH RESPECT TO THE SUBJECT MATTER
HEREOF AND THEREOF, AND THERE ARE NO PROMISES, UNDERTAKINGS, REPRESENTATIONS OR
WARRANTIES BY THE AGENT OR ANY LENDER RELATIVE TO THE SUBJECT MATTER HEREOF OR
THEREOF NOT EXPRESSLY SET FORTH OR REFERRED TO HEREIN OR IN THE CREDIT
AGREEMENT AND THE OTHER LOAN DOCUMENTS.
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<PAGE> 8
SECTION 10. Execution in Counterparts. This Amendment may be
executed in any number of counterparts and by different parties hereto in
separate counterparts, each of which when so executed shall be deemed to be an
original and all of which taken together shall constitute one and the same
agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed by their respective officers thereunto duly authorized as of the
date first above written.
Company:
-------
EVI, INC., a Delaware corporation
By: /s/ James G. Kiley
Name: James G. Kiley
Title: Vice President
Subsidiary Guarantors:
---------------------
EVI OIL TOOLS, INC., a Delaware
corporation
By: /s/ James G. Kiley
Name: James G. Kiley
Title: Vice President
GRANT PRIDECO, INC., a Delaware
corporation and the successor of
a merger of Prideco, Inc., a
Texas corporation, with and
into Grant Prideco, Inc.
By: /s/ James G. Kiley
Name: James G. Kiley
Title: Vice President
PRIDECO HOLDINGS, INC., a
Delaware corporation
By: /s/ James G. Kiley
Name: James G. Kiley
Title: Vice President
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<PAGE> 9
CHANNELVIEW REAL PROPERTY, INC., a
Delaware corporation
By: /s/ James G. Kiley
Name: James G. Kiley
Title: Vice President
EVI MANAGEMENT INC., a Delaware
corporation
By: /s/ James G. Kiley
Name: James G. Kiley
Title: Vice President
EVI ARROW, INC., a Delaware
corporation
By: /s/ James G. Kiley
Name: James G. Kiley
Title: Vice President
EVI WATSON PACKERS, INC., a Delaware
corporation
By: /s/ James G. Kiley
Name: James G. Kiley
Title: Vice President
Agent:
THE CHASE MANHATTAN BANK, AS AGENT
By: /s/ Peter M. Ling
Name: Peter M. Ling
Title: Vice President
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<PAGE> 10
Lenders:
THE CHASE MANHATTAN BANK
By: /s/ Peter M. Ling
Name: Peter M. Ling
Title: Vice President
ABN AMRO NORTH AMERICA, INC.,
AS AGENT FOR ABN AMRO BANK, N.V.
By: /s/ Charles W. Randall
Name: Charles W. Randall
Title: Sr. Vice President
By: /s/ H. Gene Shiels
Name: H. Gene Shiels
Title: Vice President
CREDIT LYONNAIS NEW YORK BRANCH
By: /s/ Phillipe Soustra
Name: Phillipe Soustra
Title: Sr. Vice President
HIBERNIA NATIONAL BANK
By: /s/ Tammy Angelety
Name: Tammy Angelety
Title: Asst. Vice President
WELLS FARGO BANK (TEXAS), N.A.
By: /s/ Frank W. Schageman
Name: Frank W. Schageman
Title: Vice President
THE BANK OF NOVA SCOTIA
By: /s/ F.C.H. Ashby
Name: F.C.H. Ashby
Title: Sr. Manager-Loan Operations
BANQUE PARIBAS
By: /s/ Brain Malone
Name: Brian Malone
Title: Vice President
By: /s/ Marian Livingston
Name: Marian Livingston
Title: Vice President
THE FUJI BANK, LIMITED
By: /s/ Nate Ellis
Name: Nate Ellis
Title: Vice President & Manager
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<PAGE> 1
EXHIBIT 4.15
TARO INDUSTRIES LIMITED
STOCK OPTION PLAN
1. DEFINITIONS
In this Plan:
(a) "AFFILIATE" has the meaning ascribed thereto in the Securities
Act (Alberta) as of the Effective Date;
(b) "BOARD" means the Board of Directors for the time being of the
Corporation or a committee of the Board of Directors that has
been delegated powers relating to the Plan;
(c) "BUSINESS DAY" means a day (other than a Saturday or Sunday) on
which the Registrar and Transfer Agent of the Corporation for
the time being is open for business in the City of Calgary;
(d) "CORPORATION" means Taro Industries Limited, a corporation
incorporated under the laws of the Province of Alberta;
(e) "EFFECTIVE DATE" means the date that this Plan is approved by the
Board;
(f) "EXERCISE PERIOD" means the period during which an Option may be
exercised, as determined in accordance with the terms hereof;
(g) "EXCHANGE" means The Toronto Stock Exchange or, if at any time
the Shares are not listed for trading on such exchange, such
exchange as may be designated by the Board;
(h) "EXERCISE PRICE" means the price at which Option Shares may be
acquired upon the exercise of Options;
(i) "EXERCISED SHARES" means Option Shares that have been issued upon
the exercise of an Option and the payment of the Exercise Price;
(j) "EXPIRY DATE" means the close of business (Calgary time) on the
last day of an Exercise Period;
(k) "HOLDER" means a person to whom a subsisting Option has been
granted;
(l) "MARKET PRICE" means the closing market price of the Shares on
the Exchange on the Trading Day immediately preceding the date
of grant of an Option;
(m) "OPTION" means an option to purchase Shares granted pursuant to
the terms of this Plan;
(n) "OPTION SHARES" means Shares which are available for purchase
upon the exercise of an Option;
<PAGE> 2
(o) "PLAN" means the stock option plan of the Corporation as set
forth herein, together with any additions, deletions,
alterations or other amendments as may from time to time be
approved or authorized by the Board in accordance with the terms
hereof;
(p) "PRIOR PLAN" means the stock option plan of the Corporation
which was in effect immediately prior to the Effective Date, as
amended;
(q) "SHARES" means common shares in the capital of the Corporation;
and
(r) "TRADING DAY" means a day upon which at least one board lot of
the Shares is traded through the facilities of the Exchange.
2. PURPOSE OF PLAN
The purpose of the Plan is:
(a) to develop the interest of officers, employees, directors and
consultants of the Corporation and its Affiliates in the growth
and development of the Corporation by providing such persons
with the opportunity to acquire a proprietary interest in the
Corporation; and
(b) to provide a compensation mechanism for persons who provide a
service to the Corporation or its Affiliates on an ongoing
basis, or who have provided, or are expected to provide, a
service of value to the Corporation or its Affiliates.
3. GRANTING OF OPTIONS
(a) No Option shall be granted except by resolution of the Board.
(b) Having regard to the purpose of the Plan, the Board may from
time to time designate persons to whom Options are to be granted
and the number of Option Shares that may be purchased upon the
exercise of such Options, and the Board may determine, in its
sole discretion, that any Options granted shall be made subject
to a separate option agreement, setting forth the terms and
conditions approved by the Board.
(c) Options may be granted to purchase up to 576,805 Shares pursuant
to the Plan. Any Shares, the Options in respect of which have
expired or terminated, shall be available for the granting of
subsequent Options.
(d) No Options shall be granted with an Exercise Price at a discount
to the Market Price.
(e) The aggregate number of Shares reserved for issuance to any one
person under the Plan, or any other share compensation
arrangement providing for the issuance of Shares from the
treasury of the Corporation, shall not at any time exceed 5% of
the total number of Shares then outstanding, calculated on a
non-diluted basis.
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<PAGE> 3
4. EXERCISE OF OPTIONS
(a) An Option may be exercised on or before the date which is five
(5) years from the date on which the Option is granted, which
date shall be the effective date of the Board resolution
granting the Option or, if such resolution makes no reference to
an effective date, the date on which the meeting was held at
which the resolution was passed, provided that the Board may, in
its sole discretion, determine the period of exercise of Options
to be greater or less than the foregoing, subject to such
additional terms and conditions, if any, imposed by the Board to
facilitate such varied exercise period and further, subject to
any stock option agreement between the Corporation and the
Holder of the Option under which the acceleration of rights of
exercise are provided for and all applicable requirements of the
Exchange or any other regulatory authorities having
jurisdiction. In any event, no Option shall have an Exercise
Period exceeding ten (10) years from the date on which the
Option is granted.
(b) An Option may be exercised from time to time by delivery to the
Corporation at its head office of a written notice of exercise
specifying the number of Shares with respect to which the Option
is being exercised.
(c) Within three (3) Business Days after the Corporation receives
the notice referred to above, the Exercised Shares shall be
allotted and issued as fully paid and non-assessable to the
Holder, provided that the Corporation shall have then received
from the Holder payment in full of the Exercise Price for the
Shares to be purchased, by way of cash or a cheque, bank draft,
money order or similar instrument acceptable to the Corporation.
(d) Notwithstanding the foregoing or any of the provisions
hereinafter contained, the Board may make a determination with
respect to the grant of Options on such other terms and
conditions as it may deem appropriate (which may vary between
Options), including without limitation, the vesting of the
unvested portion of an Option upon the occurrence of any one of
a number of specified events, and the Board may also approve a
separate option agreement incorporating such terms and
conditions applicable thereto as the Board may in its sole
discretion determine, subject in all events to the applicable
requirements of any stock exchange or other regulatory authority
having jurisdiction in the circumstances.
5. EARLY TERMINATION OF EXERCISE PERIOD
If a Holder who is a director, officer, employee or consultant of the
Corporation or its Affiliates ceases to be a director, officer, employee or
consultant of the Corporation or its Affiliates prior to the Expiry Date:
(a) by reason of the death or long term disability of such Holder,
then all outstanding unvested Options granted to such Holder
shall immediately and automatically terminate, other than those
Options which would have vested within the one year period
following the date of such termination if such termination had
not occurred, which later Options shall for this purpose be
deemed to be vested upon such termination. The Holder or the
legal representatives of such Holder (as the case may be) shall
have the right to exercise part or all of the Holder's
outstanding and vested Options at any time up to and including
(but not after)
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<PAGE> 4
the earlier of: the date that is one year following the date of
death or long term disability of such Holder; or the Expiry
Date of the Option;
(b) by reason of termination for cause (which shall include, without
limitation, dishonesty or infidelity with respect to the
Corporation (or its Affiliates), neglect or non-performance of
duties with the Corporation (or its Affiliates) or conviction of
a criminal offence in relation to the affairs of the Corporation
(or its Affiliates)), or by reason of resignation or cessation
of employment without the prior written consent of the
Corporation (whether or not by way of any deemed or constructive
dismissal or otherwise), then all outstanding unvested Options
granted to such Holder shall immediately and automatically
terminate. Such Holder shall have the right to exercise part or
all of his outstanding vested Options at any time up to and
including (but not after) the earlier of: the date that is
ninety (90) days following the date of such termination; and the
Expiry Date of the Options; and
(c) by reason of termination without cause or resignation or
cessation of employment with prior written consent of the
Corporation, then all outstanding and unvested Options granted
to such Holder shall immediately and automatically terminate.
Such Holder shall have the right to exercise part or all of his
outstanding and vested Options at any time up to and including
(but not after) the earlier of: the date that is ninety (90)
days following the date of such termination; and the Expiry Date
of the Options.
If the relationship of the Holder with the Corporation is terminated for
any reason prior to the expiration of the Options, whether or not such
termination is with or without notice, adequate notice or legal notice or is
with or without legal or just cause, the Holder's rights shall be strictly
limited to those provided for in this Section 5. The Holder shall have no
claim to or in respect of any Options which may have or would have vested had
due notice of termination of employment been given nor shall the Holder have
any entitlement to damages or other compensation on any claim for wrongful
termination or dismissal in respect of any Options or loss of profit or
opportunity which may have or would have vested or accrued to the Holder if
such wrongful termination or dismissal had not occurred or if due notice of
termination had been given. This provision shall be without prejudice to the
Holder's rights to seek compensation for lost employment income or lost
employment benefits (other than those accruing under or in respect of this Plan
or any Option) in the event of any alleged wrongful termination or dismissal.
6. OPTIONS NOT ASSIGNABLE
Subject to Subsection 5(a), no Options granted hereunder may be assigned
by the Holder. The Corporation shall not recognize any attempted exercise of
an Option by any purported assignee of a Holder.
7. ADJUSTMENT OF OPTIONED SHARES OR EXERCISE PRICE
In the event of any change, subdivision, consolidation or
reclassification of the Shares of the Corporation or in respect of the affairs
or business of the Corporation, the payment of stock dividends by the
Corporation or other relevant changes in the capital stock of the Corporation,
the Board shall, subject to any applicable regulatory requirements, make such
adjustments or changes as it sees fit to the terms of outstanding Options
(including the number of Option Shares and the Exercise Price) and shall,
subject to any applicable
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<PAGE> 5
regulatory requirements, effect such other changes, amendments or adjustments
to the Plan as may be required or desirable in light of such changes in the
capital stock of the Corporation or its affairs or business all with a view to
maintaining the overall rights and benefits of the Holders of Options as nearly
as may be practicable in the circumstances.
8. NO RIGHT AS SHAREHOLDER
A Holder shall have no rights whatsoever as a shareholder in respect of
any Option Shares unless and until such Holder has exercised the related Option
in respect of such Option Shares.
9. TRANSITION
No additional stock options may be granted pursuant to the Prior Plan on
or after the Effective Date. Stock options granted pursuant to the Prior Plan
that are outstanding on the Effective Date shall continue to be governed by the
Prior Plan (or any applicable stock option agreement) unless the Holder thereof
shall have agreed that such Options shall be deemed to have been issued
pursuant to and governed by this Plan.
10. AMENDMENT OR TERMINATION OF PLAN
Subject to the receipt of all necessary regulatory approvals, the Board
may from time to time add to, delete from, alter or otherwise amend the
provisions of the Plan or any Options granted thereunder as it sees fit or may
at any time terminate the Plan, provided that:
(a) no amendment may, without the written consent of the Holder,
materially and adversely impair, alter or amend any Option
previously granted to such Holder; and
(b) a termination of the Plan shall not derogate from the rights of
Holders of Options granted prior to the date of such
termination, unless otherwise consented to by such Holders.
11. LIMITATION OF ISSUANCES
No Option may be granted herein if the granting of such Option, together
with any other share compensation arrangements of the Corporation then in
effect, could result, at any time, in:
(a) the number of Shares reserved for issuance to insiders pursuant
to stock options granted to insiders exceeding ten percent (10%)
of the number of shares of the Corporation then outstanding;
(b) the issuance to insiders, within a one (1) year period, of a
number of Shares exceeding ten percent (10%) of the number of
Shares of the Corporation then outstanding; or
(c) the issuance to any one insider and such insider's associates,
within a one (1) year period, of a number of Shares exceeding
five percent (5%) of the number of Shares of the Corporation
then outstanding.
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<PAGE> 6
For the purposes of this Section 11, the terms "insider" and "associate"
shall have the meanings ascribed thereto in the bylaws of Exchange.
12. INTERPRETATION
All questions of interpretation relating to the Plan, its provisions,
operation or the rights of Holders shall be submitted to the Board for its
consideration, and any decision or ruling of the Board respecting such matters
shall be conclusive and binding on the Corporation, on all Holders to which
such decision or ruling may expressly or by implication apply, on all
directors, officers, employees and consultants eligible to be granted Options
under the provisions of the Plan and on their respective heirs, representatives
or successors (as the case may be).
13. REGULATORY AUTHORITY
The Plan shall be subject to the approval of and conditions imposed by
the Exchange and any Options granted prior to such approval of the Exchange
shall be conditional upon such approval being given and no Options may be
exercised prior to such approval. To the extent that any provision of this
Plan conflicts with any rules of the Exchange, such rules shall govern and this
Plan shall be deemed to be amended to be consistent therewith.
DATED to have effect as of the 15th day of March, 1996.
TARO INDUSTRIES LIMITED
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<PAGE> 1
EXHIBIT 5.1
[LETTERHEAD OF FULBRIGHT & JAWORSKI L.L.P.]
January 15, 1998
EVI, Inc.
5 Post Oak Park, Suite 1760
Houston, Texas 77027-3415
Ladies and Gentlemen:
We have acted as counsel for EVI, Inc., a Delaware corporation (the
"Company"), in connection with the registration under the Securities Act of
1933 of 34,800 shares of the Company's common stock, $1.00 par value (the
"Shares"), to be offered upon the terms and subject to the conditions set forth
in the Taro Industries Limited Stock Option Plan (the "Plan").
In connection therewith, we have examined originals or copies,
certified or otherwise identified to our satisfaction, of the Restated
Certificate of Incorporation of the Company, the amended Bylaws of the Company
and the Plan, the records of relevant corporate proceedings with respect to the
offering of the Shares and such other documents and instruments as we have
deemed necessary or appropriate for the expression of the opinions contained
herein. We also have examined the Company's Registration Statement on Form S-8
(the "Registration Statement") to be filed with the Securities and Exchange
Commission with respect to the Shares.
We have assumed the authenticity and completeness of all records,
certificates and other instruments submitted to us as originals, the conformity
to original documents of all records, certificates and other instruments
submitted to us as copies, the authenticity and completeness of the originals
of those records, certificates and other instruments submitted to us as copies
and the correctness of all statements of fact contained in all records,
certificates and other instruments that we have examined.
Based on the foregoing, and having regard for such legal
considerations as we have deemed relevant, we are of the opinion that the
Shares have been duly and validly authorized for issuance and, when issued in
accordance with the terms of the Plan, will be duly and validly issued, fully
paid and nonassessable.
The opinions expressed herein relate solely to, are based solely upon
and are limited exclusively to the laws of the State of Delaware and the
federal laws of the United States of America, to the extent applicable.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement and to the use of our name under the caption "Item 5.
Interests of Named Experts and Counsel" in the Registration Statement.
Very truly yours,
/s/ Fulbright & Jaworski L.L.P.
Fulbright & Jaworski L.L.P.
<PAGE> 1
EXHIBIT 23.2
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the
incorporation by reference in this Registration Statement of our report dated
February 10, 1997 included in EVI, Inc.'s (the "Company") Form 10-K/A for the
year ended December 31, 1996, as supplemented in the Company's Form 8-K dated
October 20, 1997, and to all references to our Firm included in this
Registration Statement.
/s/ ARTHUR ANDERSEN LLP
Arthur Andersen LLP
Houston, Texas
January 15, 1998
<PAGE> 1
EXHIBIT 23.3
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the
incorporation by reference in this Registration Statement of our report dated
April 18, 1996 on the consolidated financial statements for Tubular Corporation
of America and subsidiary included in EVI, Inc.'s Form 8-K dated June 24, 1996
and Form 8-K dated August 5, 1996 and to all references to our Firm included in
this Registration Statement.
/s/ ARTHUR ANDERSEN LLP
Arthur Andersen LLP
Tulsa, Oklahoma
January 15, 1998
<PAGE> 1
EXHIBIT 23.4
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the
incorporation by reference in this Registration Statement on Form S-8 of our
report dated February 26, 1997 on the financial statements of GulfMark Retained
Assets (a business segment of GulfMark International, Inc.) at December 31, 1996
and 1995 and each of the three years in the period ended December 31, 1996 and
to all references to our Firm included in this Registration Statement.
/s/ ARTHUR ANDERSEN LLP
Arthur Andersen LLP
Houston, Texas
January 15, 1998
