FORM OF VOTING AGREEMENT
Schedule
99.7
FORM
OF VOTING AGREEMENT
VOTING
AGREEMENT, dated as of May 18, 2007 (this “Agreement”),
between SUN PHARMACEUTICAL INDUSTRIES, INC., a Michigan corporation, (the
“Parent”),
and
[_____________][a [____________ 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
The Taro Development Corporation, an Israeli company (the “Taro”)
are
entering into an Agreement of Merger (the “Taro
Merger Agreement”),
pursuant to which Merger Sub will merge with and into the Company (the
“Taro
Merger”)
in
accordance with the Taro Merger Agreement and the applicable provisions of
Israeli Companies Law. Upon consummation of such merger, the Merger Sub will
cease to exist, and the Company will become a wholly-owned subsidiary of
the
Parent;
WHEREAS,
concurrently herewith, the Parent, Sun Development Corporation I, a New York
corporation (“TDC
Merger Sub”),
Taro
Development Corporation, a New York corporation (“Company”),
Xxxxxx Xxxxxx (“Xxxxxx”)
and
Xxxxxx Xxxxx (“Moros”)
are
entering into an Agreement of Merger (the “Merger
Agreement”),
pursuant to which TDC Merger Sub will merge with and into the Company (the
“Merger”)
in
accordance with the Merger Agreement and the applicable provisions of Business
Corporation Law of the State of New York. Upon consummation of the Merger,
the
TDC Merger Sub will cease to exist, and the TDC Merger Sub will become a
wholly-owned subsidiary of the Parent. Capitalized terms used but not defined
in
this Agreement shall have the meanings ascribed to them in the Merger
Agreement;
WHEREAS,
the Shareholder beneficially owns [________] shares of Common Stock and
[________] shares of Preferred Stock] (such Common Stock and Preferred Stock
collectively, the “Owned
Shares”
and,
together with any shares of Common Stock [or Preferred Stock] 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, (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 transactions
contemplated by the Merger Agreement and (B) against any proposal, action
or
transaction involving Company or Xxxxxx and Company, 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 State of Michigan 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
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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.
(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 Authority, (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, writ,
injunction, judgment or decree 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 [________] Common Stock
[[________] Preferred Stock] [and [________] Common Stock [[________] Preferred
Stock] 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 [NAME OF SHAREHOLDER]. 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
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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.] [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.]
(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 Authority [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, writ, injunction, judgment or decree 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.
Prior
to
the Closing, 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, consider, encourage or accept any other proposals or offers from
any
Person (A) relating to any acquisition or purchase of all or any portion
of
the
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capital
stock of the Company or Xxxxxx and Company or (B) to enter into any merger,
consolidation, business combination, recapitalization, reorganization or
other
extraordinary business transaction involving or otherwise relating to the
Company or Xxxxxx and Company; or
(ii) participate
in any discussions, conversations, negotiations and other communications
regarding, or furnish to any other Person any information with respect to,
or
otherwise cooperate in any way with, assist or participate in, or facilitate
or
encourage any effort or attempt by any other Person to seek to do any of
the
foregoing;
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 5.02 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 all existing
discussions, conversations, negotiations and other communications with any
Persons conducted heretofore with respect to any of the foregoing. The Company
shall notify Parent promptly if any such proposal or offer, or any inquiry
or
other contact with any Person with respect thereto, is made and shall, in
any
such notice to Parent, indicate in reasonable detail the identity of the
Person
making such proposal, offer, inquiry or contact and the terms and conditions
of
such proposal, offer, inquiry or other contact. The Company agrees not to,
and
to cause the Company and Xxxxxx and Company not to, without the prior written
consent of Parent, release any Person from, or waive any provision of, any
confidentiality or standstill agreement to which the Company or Xxxxxx and
Company is a party.
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
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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
with
a
copy (which shall not constitute notice) to:
Skadden,
Arps, Slate, Xxxxxxx & Xxxx LLP
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
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
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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
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
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 New York, 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
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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:
Name:
Title:
PARENT
By:
Name:
Title:
Schedule
I
[NAME
OF SHAREHOLDER]
|
Name
|
Number
of Shares
|
Signatories
|
|
[NAME
OF SHAREHOLDER] - Direct
|
||
|
[NAME
OF SHAREHOLDER] - Exercisable options
|
||
|
[NAME
OF AFFILIATE]
|
||
|
Total:
|
||
|
Company
Shares Outstanding:
|
||
|
Percentage
Ownership:
|
%
|
