FORM OF VOTING AGREEMENT
Schedule 99.5
VOTING
AGREEMENT, dated as of May 18, 2007 (this “Agreement”),
between ALKALOIDA CHEMICAL COMPANY EXCLUSIVE GROUP LTD. (the “Parent”),
and , (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 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.
-1-
(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.
(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 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 . 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
-2-
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, 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.
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.
-3-
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
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
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
-4-
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 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.
-5-
IN
WITNESS WHEREOF, the parties have executed this Agreement as of the date first
written above.
SHAREHOLDER
|
|
By:
|
Name:
Title:
PARENT
|
|
By:
|
Name:
Title:
-6-
