VOTING AGREEMENT
Exhibit (d)(H)
EXECUTION COPY
VOTING AGREEMENT, dated as of May 18, 2007 (this “Agreement”), between SUN
PHARMACEUTICAL INDUSTRIES, INC., a Michigan corporation (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 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 and Xxxxxx Xxxxx 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 1,234.5 shares of Common Stock and 5,787.9 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 1,234.5 Common Stock and 5,787.9 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
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
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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, (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:
(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 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;
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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 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.
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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:
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
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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 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.
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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 I
XXX XXXXXX
| Name | Number of Shares | Signatories | ||||||
[NAME OF SHAREHOLDER] — Direct |
||||||||
[NAME OF SHAREHOLDER] — Exercisable options |
||||||||
[NAME OF AFFILIATE] |
||||||||
Total Common Shares : |
1,234.5 | |||||||
Total Preferred Shares : |
5,787.9 | |||||||
Company Common Shares Outstanding: |
7,969.9 | |||||||
Percentage Ownership: |
15.5 | % | ||||||
Company Preferred Shares Outstanding: |
20,351.3 | |||||||
Percentage Ownership: |
28.44 | % | ||||||
