VOTING AGREEMENT
Exhibit (d) (H)
EXECUTION COPY
VOTING AGREEMENT, dated as of May 18, 2007 (this “Agreement”), between ALKALOIDA CHEMICAL
COMPANY EXCLUSIVE GROUP LTD. (the “Parent”), and XXX XXXXXX (the “Shareholder”).
WHEREAS, concurrently herewith, the Parent, Aditya Acquisition Company Ltd., an Israeli
company and a wholly owned subsidiary of Parent (the “Merger Sub”), and Taro Pharmaceutical
Industries Ltd., an Israeli company (the “Company”) are entering into an Agreement of Merger (the
“Merger Agreement”; capitalized terms used but not defined in this Agreement shall have the
meanings ascribed to them in the Merger Agreement), pursuant to which Merger Sub will merge with
and into the Company in accordance with the Merger Agreement and the applicable provisions of the
Companies Law. Upon consummation of the Merger, the Merger Sub will cease to exist, and the Company
will become a wholly-owned subsidiary of the Parent;
WHEREAS, the Shareholder beneficially 552,514 Company Ordinary Shares (such Company Ordinary
Shares, the “Owned Shares” and, together with any shares of Company Ordinary Shares or Company
Founder Shares of which Shareholder acquires beneficial ownership after the date hereof and prior
to the termination hereof, whether by purchase or upon exercise of options, warrants, conversion of
other convertible securities or otherwise collectively, the “Covered Shares”);
WHEREAS, the Shareholder acknowledges that the Parent is entering into the Merger Agreement in
reliance on the representations, warranties, covenants and other agreements of the Shareholder set
forth in this Agreement and would not enter into the Merger Agreement if the Shareholder did not
enter into this Agreement.
NOW, THEREFORE, in consideration of the foregoing and of the mutual covenants and agreements
contained herein, and intending to be legally bound hereby, the parties hereby agree as follows:
1. Agreement to Vote.
(a) Prior to any termination of this Agreement, the Shareholder hereby agrees that it shall,
and shall cause any other holder of record of any Covered Shares to, at any meeting of the
shareholders of Company (whether annual or special and whether or not an adjourned or postponed
meeting), however called, and to the fullest extent permitted by law (i) when a meeting is held,
appear at such meeting or otherwise cause the Covered Shares to be counted as present thereat for
the purpose of establishing a quorum, and (ii) vote (or caused to be voted) in person or by proxy
all Covered Shares (A) in favor of the Merger and the other Contemplated Transactions and (B)
against any proposal, action or transaction involving Company or any of its Subsidiaries, which
proposal, action or transaction would impede, frustrate, prevent or delay the consummation of the
Merger or the other transactions contemplated by the Merger Agreement or this Agreement.
(b) THE SHAREHOLDER HEREBY GRANTS TO, AND APPOINTS, THE PARENT, EACH OFFICER OF THE PARENT,
AND ANY OTHER DESIGNEE OF THE
PARENT, EACH OF THEM INDIVIDUALLY, THE SHAREHOLDER’S IRREVOCABLE (UNTIL THE TERMINATION DATE, AS
DEFINED BELOW) PROXY AND ATTORNEY-IN-FACT (WITH FULL POWER OF SUBSTITUTION) TO VOTE THE COVERED
SHARES AS INDICATED IN CLAUSE (a) OF THIS SECTION 1. THE SHAREHOLDER INTENDS THIS PROXY TO BE
IRREVOCABLE (UNTIL THE TERMINATION DATE, AS DEFINED BELOW) AND COUPLED WITH AN INTEREST AND WILL
TAKE SUCH FURTHER ACTION OR EXECUTE SUCH OTHER INSTRUMENTS AS MAY BE NECESSARY TO EFFECTUATE THE
INTENT OF THIS PROXY AND HEREBY REVOKES ANY PROXY PREVIOUSLY GRANTED BY THE SHAREHOLDER WITH
RESPECT TO THE COVERED SHARES (THE SHAREHOLDER REPRESENTS TO THE COMPANY THAT ANY SUCH PROXY IS NOT
IRREVOCABLE).
(c) Except as set forth in clause (a) of this Section 1, the Shareholder shall not be
restricted from voting in favor of, against or abstaining with respect to any matter presented to
the shareholders of the Company.
(d) If for any reason the proxy granted herein is not irrevocable, then, if instructed
by the Parent in writing, the Shareholder agrees to vote (or cause to be voted) the Covered
Shares in a manner consistent with clause (a) of this Section 1.
2. Termination. This Agreement shall terminate upon the earliest of (a) the
Effective Time, (b) the termination of the Merger Agreement in accordance with its terms, and
(c) written notice of termination of this Agreement by the Parent to the Shareholder, such
earliest date being referred to herein as the “Termination Date”; provided, however,
that the provisions set forth in Section 11 to 18 shall survive the termination of this
Agreement; provided, further, however, that termination of this Agreement shall not
prevent any party hereunder from seeking any remedies (at law or in equity) against any other
party hereto for such party’s breach of any of the terms of this Agreement prior to termination.
3. Representations and Warranties.
(a) Representations and Warranties of the Parent. The Parent hereby
represents and warrants to the Shareholder as follows:
(i) Organization and Authority. The Parent is a corporation duly
incorporated, validly existing and in good standing under the laws of The Republic of
Hungary and has all necessary corporate power and authority to enter into, execute and
deliver this Agreement, to carry out its obligations hereunder and to consummate the
transactions contemplated hereby. The execution and delivery of this Agreement by the
Parent, the performance by the Parent of its obligations hereunder and the consummation by
the Parent of the transactions contemplated hereby have been duly authorized by all
requisite corporate action on the part of the Parent. This Agreement has been duly executed
and delivered by the Parent, and, assuming due authorization, execution and delivery by the
other parties hereto, this Agreement is a legal, valid and binding obligation of the Parent,
enforceable against it in accordance with its terms.
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(ii) Consents; No Conflicts. The execution, delivery and performance by
the Parent of this Agreement do not and will not (A) require any consent, approval,
authorization or other order of, action by, filing with, or notification to, any
Governmental Entity, (B) violate, conflict with or result in the breach of any provision of
the certificate of incorporation or bylaws (or similar organizational documents) of the
Parent, (C) conflict with or violate any Law or Order applicable to the Parent or its
assets, properties or businesses or (D) conflict with, result in any breach of, constitute a
default (or event which with the giving of notice or lapse of time, or both, would become a
default) under, require any consent under, or give to others any rights of termination,
amendment, acceleration, suspension, revocation or cancellation of, any note, bond, mortgage
or indenture, contract, agreement, lease, sublease, license, permit, franchise or other
instrument or arrangement to which the Parent is a party, except, in the case of clauses (C)
and (D), as would not materially and adversely affect the ability of the Parent to carry out
its obligations under, and to consummate the transactions contemplated by, this Agreement.
(b) Representations and Warranties of the Shareholder. The Shareholder
hereby represents and warrants to the Parent as follows:
(i) Ownership of Securities. As of the date of this Agreement, (A) the
Shareholder is the record and beneficial owner of, and has sole voting power and sole power
of disposition with respect to, the Owned Shares, free and clear of Liens, proxies, powers
of attorney, voting trusts or agreements (other than any Lien or proxy created by this
Agreement or pursuant to any pledge in existence as of the date hereof, none of which would
affect the ability of the Shareholder to carry out the Shareholder’s obligations under, and
to consummate the transactions contemplated by, this Agreement), and (B) the Shareholder
beneficially owns 552,514 Company Ordinary Shares and 41,500 Company Ordinary Shares
issuable upon the exercise of currently exercisable stock options. As of the date of this
Agreement, Schedule I is true and correct in all respects with respect to those Persons
listed under Xxx Xxxxxx. As used in this Agreement, the terms “beneficial owner”,
“beneficial ownership”, “beneficially owns” or “owns beneficially”, with respect to any
securities, refer to the beneficial ownership of such securities as determined under Rule
13d-3(a) of the Exchange Act.
(ii) Organization and Authority. The Shareholder has all necessary power
and capacity to enter into, execute and deliver this Agreement, to carry out his obligations
hereunder and to consummate the transactions contemplated hereby. This Agreement has been
duly executed and delivered by the Shareholder, and, assuming due authorization, execution
and delivery by the other parties hereto, this Agreement is a legal, valid and binding
obligation of the Shareholder, enforceable against the Shareholder in accordance with its
terms. If the Shareholder is married, and any of the Covered Shares constitute community
property or otherwise need spousal or other approval for this Agreement to be legal, valid
and binding, this Agreement has been duly authorized, executed and delivered by, and
constitutes the legal, valid and binding obligation of, Shareholder’s spouse, enforceable in
accordance with its terms.
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(iii)
Consents; No Conflicts. The execution, delivery and performance by
the Shareholder of this Agreement do not and will not (A) require any consent, approval,
authorization or other order of, action by, filing with, or notification to, any
Governmental Entity, (B) conflict with or violate any Law or Order applicable to the
Shareholder or the Shareholder’s assets, properties or businesses or (C) conflict with,
result in any breach of, constitute a default (or event which with the giving of notice or
lapse of time, or both, would become a default) under, require any consent under, or give
to others any rights of termination, amendment, acceleration, suspension, revocation or
cancellation of, any note, bond, mortgage or indenture, contract, agreement, lease,
sublease, license, permit, franchise or other instrument or arrangement to which the
Shareholder is a party.
4. Restriction on Transfer, Proxies. The Shareholder hereby agrees, while this
Agreement is in effect, not to (a) except as set forth in Section 8 hereof or pursuant to
pledges in existence as of the date hereof (none of which would affect the ability of the
Shareholder to carry out the Shareholder’s obligations under, and to consummate the
transactions contemplated by, this Agreement), sell, transfer, pledge, encumber, assign or
otherwise dispose of, or enter into any Contract, option or other arrangement or understanding
with respect to the sale, transfer, pledge, encumbrance, assignment or other disposition of,
any of the Covered Shares, (b) grant any proxies or powers of attorney, deposit any Covered
Shares into a voting trust or enter into a voting agreement with respect to any Covered Shares
or (c) take any action that would make any representation or warranty of the Shareholder
contained herein untrue or incorrect or have the effect of preventing or disabling the
Shareholder from performing its obligations under this Agreement.
5. No Solicitation. During the Pre-Closing Period, the Shareholder shall not,
directly or indirectly:
(i) solicit, initiate, induce, knowingly facilitate or knowingly encourage or take any
other action to knowingly facilitate or knowingly encourage the making, submission or
announcement of any Acquisition Proposal or Acquisition Inquiry; or
(ii) furnish any nonpublic information regarding any of the Acquired Corporations to
any Person in connection with or in response to an Acquisition Proposal or Acquisition
Inquiry;
provided, however, that nothing in this Section 5 shall prevent the Shareholder, in his,
her or its capacity as a director or executive officer of the Company from engaging in any activity
permitted pursuant to Section 4.3(a) of the Merger Agreement. Each Shareholder shall, and shall
direct or cause his, her or its representatives and agents to, immediately cease and cause to be
terminated any discussions or negotiations with any parties that may be ongoing with respect to any
Acquisition Proposal. Each Shareholder shall promptly advise Parent orally and in writing of (a)
any Acquisition Proposal or any request for information with respect to any Acquisition Proposal,
the material terms and conditions of such Acquisition Proposal or request and the identity of the
person making such Acquisition Proposal or request and (b) any changes in any such Acquisition
Proposal or request.
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6. Further Assurances. From time to time, at the other party’s request and without
further consideration, each party hereto shall take such reasonable further action as may
reasonably be necessary or desirable to consummate and make effective the transactions contemplated
by this Agreement.
7. Fiduciary Duties. Notwithstanding anything in this Agreement to the contrary: (a)
the Shareholder makes no agreement or understanding herein in any capacity other than in his
capacity as a record holder and beneficial owner of Covered Shares and (b) nothing herein shall be
construed to limit or affect any action or inaction by the Shareholder acting in his capacity as a
director or officer of Company in a manner consistent with the Merger Agreement.
8. Permitted Transfers. Notwithstanding anything in this Agreement to the contrary,
the Shareholder may transfer any or all of the Covered Shares, in accordance with provisions of
applicable Law, to his spouse, ancestors, descendants or any trust controlled by the Shareholder
for any of their benefit; provided, however, that, prior to and as a condition to the
effectiveness of such transfer, (a) the Parent shall have consented in writing to any such transfer
of the Covered Shares, such consent not to be unreasonably withheld and (b) each Person to which
any of such Covered Shares or any interest in any of such Covered Shares is or may be transferred
shall have executed and delivered to the Parent a counterpart of this Agreement pursuant to which
such Person shall be bound by all of the terms and provisions of this Agreement, and shall have
agreed in writing with the Parent to hold such Covered Shares or interest in such Covered Shares
subject to all of the terms and provisions of this Agreement.
9. No Control. Nothing contained in this Agreement shall give the Parent the right to
control or direct Company or Company’s operations prior to the consummation of the Merger.
10. Amendment. This Agreement may not be amended except by an instrument in
writing signed by both of the parties hereto.
11. Notices. All notices, requests, claims, demands and other communications hereunder
shall be in writing and shall be deemed given if delivered personally, telecopied (which is
confirmed) or sent by overnight courier (providing proof of delivery) to the parties at the
following addresses (or at such other address for a party as shall be specified in a notice given
in accordance with this Section 11):
(a) if to the Shareholder:
c/o Taro Pharmaceuticals U.S.A., Inc.
0 Xxxxxxx Xxxxx
Xxxxxxxxx, XX 00000
Attention: Xxx Xxxxxx
Facsimile: (000) 000-0000 and (000) 000-0000
0 Xxxxxxx Xxxxx
Xxxxxxxxx, XX 00000
Attention: Xxx Xxxxxx
Facsimile: (000) 000-0000 and (000) 000-0000
with a copy (which shall not constitute notice) to:
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Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP
0 Xxxxx Xxxxxx
Xxx Xxxx, X. Y. 10036
Attn: Xxxxxxx X. Xxxxxxx
Facsimile: (000) 000-0000
0 Xxxxx Xxxxxx
Xxx Xxxx, X. Y. 10036
Attn: Xxxxxxx X. Xxxxxxx
Facsimile: (000) 000-0000
(b) if to the Parent:
x/x Xxx Xxxxxxxxxxxxxx Xxxxxxxxxx Xxx.
00/X, Xxxxx Xxxxxxxxxx Xxxxxx,
Mahakali Caves Road,
Andheri (East), Mumbai 400 093 India
Facsimile: (00-00) 0000 0000
00/X, Xxxxx Xxxxxxxxxx Xxxxxx,
Mahakali Caves Road,
Andheri (East), Mumbai 400 093 India
Facsimile: (00-00) 0000 0000
with a copy (which shall not constitute notice) to:
Shearman & Sterling LLP
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, X.X. 00000
Attn: Xxxxx X. Xxxxx
Facsimile: (000) 000-0000
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, X.X. 00000
Attn: Xxxxx X. Xxxxx
Facsimile: (000) 000-0000
and an additional copy (which shall not constitute notice) to:
Naschitz, Xxxxxxx & Co.
0 Xxxxx Xxxxxx
Xxx-Xxxx 00000
Xxxxxx
Attn: Xxxxx X. Xxxxxxx
Facsimile: x000-(0)-000-0000
0 Xxxxx Xxxxxx
Xxx-Xxxx 00000
Xxxxxx
Attn: Xxxxx X. Xxxxxxx
Facsimile: x000-(0)-000-0000
12. Severability. If any term or other provision of this Agreement is invalid, illegal
or incapable of being enforced by any rule of Law or public policy, all other conditions and
provisions of this Agreement shall nevertheless remain in full force and effect so long as the
economic or legal substance of the transactions contemplated hereby are not affected in any manner
materially adverse to any party. Upon such determination that any term or other provision is
invalid, illegal or incapable of being enforced, the parties hereto shall negotiate in good faith
to modify this Agreement so as to effect the original intent of the parties as closely as possible
in a mutually acceptable manner in order that the transactions contemplated hereby be consummated
as originally contemplated to the fullest extent possible.
13. Entire Agreement; Assignment. This Agreement (together with the Merger Agreement
to the extent referred to herein) (a) constitutes the entire agreement between the parties hereto
with respect to the subject matter hereof and supersedes all prior agreements and undertakings,
both written and oral, between the parties hereto with respect to the subject matter hereof, and
(b) shall not be assigned by operation of law or otherwise
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without the prior written consent of the other party hereto; provided, however, that the Parent
may assign this Agreement to any affiliate of Sun Pharmaceutical Industries Ltd. without the
consent of the Shareholder or of any other Person.
14. Specific Performance. The parties hereto agree that irreparable damage would occur
in the event any provision of this Agreement were not performed in accordance with the terms hereof
and that the parties hereto shall be entitled to specific performance of the terms hereof, in
addition to any other remedy at law or equity.
15. Governing Law. This Agreement shall be governed by, and construed in accordance
with, the laws of the State of Israel, disregarding the provisions concerning internal conflict of
laws. All actions and proceedings arising out of or relating to this Agreement shall be heard and
determined exclusively in any New York state or federal court sitting in The City of New York.
16. Waiver of Jury Trial. EACH OF THE PARTIES HERETO HEREBY WAIVES TO THE FULLEST
EXTENT PERMITTED BY APPLICABLE LAW ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY WITH RESPECT TO ANY
LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT OR THE
TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT. EACH OF THE PARTIES HERETO HEREBY (A) CERTIFIES THAT
NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE,
THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER,
AND (B) ACKNOWLEDGES THAT IT HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT AND THE TRANSACTIONS
CONTEMPLATED BY THIS AGREEMENT, AS APPLICABLE, BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND
CERTIFICATIONS IN THIS SECTION 16.
17. Headings. The descriptive headings contained in this Agreement are included for
convenience of reference only and shall not affect in any way the meaning or interpretation of this
Agreement.
18. Counterparts. This Agreement may be executed and delivered (including by facsimile
transmission) in one or more counterparts, and by the different parties hereto in separate
counterparts, each of which when executed shall be deemed to be an original but all of which taken
together shall constitute one and the same.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first written
above.
| SHAREHOLDER | ||||||
| By: | /s/ Xxx Xxxxxx | |||||
| Name: | Xxx Xxxxxx | |||||
| PARENT | ||||||
| By: | /s/ Xxxxxx Xxxxx | |||||
| Name: | XXXXXX XXXXX | |||||
| Title: | DIRECTOR | |||||
Schedule 1
XXX XXXXXX
| Name | Number of Shares | Signatories | ||||||
[NAME OF SHAREHOLDER] — Direct |
||||||||
[NAME OF SHAREHOLDER] — Exercisable
options |
||||||||
[NAME OF AFFILIATE] |
||||||||
Total Company Ordinary Shares: |
552,514 | |||||||
Company Ordinary Shares Outstanding: |
29,665,618 | |||||||
Percentage Ownership of Ordinary Shares: |
2 | % | ||||||
