VOTING AGREEMENT
Exhibit (d)(I)
EXECUTION COPY
VOTING AGREEMENT, dated as of May 18, 2007 (this “Agreement”), between
ALKALOIDA CHEMICAL COMPANY EXCLUSIVE GROUP LTD. (the “Parent”), and THE
TARO DEVELOPMENT CORPORATION, a New York corporation (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 owns 2,332,931 Company Ordinary
Shares (such Company Ordinary Shares collectively, 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
Patent, 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 2,332,931 Company Ordinary Shares. As of the date of this Agreement,
Schedule I is true and correct in all respects with respect to those Persons listed under The
Taro Development Corporation. 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 is a corporation duly
formed, validly existing and in good standing under the laws of the jurisdiction of
its formation and has all necessary power and authority to enter into, execute and
deliver this Agreement, to carry out its obligations hereunder and to consummate
the transactions contemplated hereby, and the execution and delivery of this
Agreement by the Shareholder, the performance by it of its obligations hereunder
and the consummation by it of the transactions contemplated hereby have been duly
authorized by all requisite action on the part of the Shareholder. 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.
(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,
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authorization or other order of, action by, filing with, or notification to, any
Governmental Entity or violate, conflict with or result in the breach of any provision of
the organizational documents of the Shareholder, (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, and the Shareholder shall ensure that no Subsidiary or the
Representatives of the Shareholder do 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: Xxxxxx Xxxxxx
Facsimile: (000) 000-0000 and (000) 000-0000
0 Xxxxxxx Xxxxx
Xxxxxxxxx, XX 00000
Attention: Xxxxxx 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.X. 00000
Attn: Xxxxxxx X. Xxxxxxx
Facsimile: (000) 000-0000
0 Xxxxx Xxxxxx
Xxx Xxxx, X.X. 00000
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 |
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By: | /s/ Xxxxxx Xxxxxx | |||
Name: | Xxxxxx Xxxxxx, M.D. | |||
PARENT |
||||
By: | ||||
Name: | ||||
Title: | ||||
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first written
above.
SHAREHOLDER |
||||
By: | ||||
Name: | ||||
Title: | ||||
PARENT |
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By: | /s/ Xxxxxx Xxxxx | |||
Name: | XXXXXX XXXXX | |||
Title: | DIRECTOR | |||
Schedule I
THE TARO DEVELOPMENT CORPORATION
Name | Number of Shares | Signatories | ||||||
[NAME OF SHAREHOLDER] — Direct |
||||||||
[NAME OF SHAREHOLDER] — Exercisable options |
||||||||
[NAME OF AFFILIATE] |
||||||||
Total Company Ordinary Shares: |
2,332,931 | |||||||
Company Ordinary Shares Outstanding: |
29,665,618 | |||||||
Percentage Ownership: |
7.86 | % |