BlueMountain Capital Management and IsZo Capital To Update Shareholders
Regarding Lawsuit Against Taro Pharmaceutical Industries, Call for the
Resignation of External Directors
NEW YORK, Jan. 31, 2014
NEW YORK, Jan. 31,2014 /PRNewswire/ --BlueMountain Capital Management, LLC
("BlueMountain") and IsZo Capital LP ("IsZo"), two of the largest minority
shareholders of Taro Pharmaceutical Industries Ltd. (NYSE:TARO; "Taro"), are
today updating fellow shareholders regarding the status of their litigation
against Taro and calling for the immediate resignation of Taro's
illegitimately elected external directors.
On November 19, 2013, BlueMountain and IsZo filed a lawsuit against Taro in
the Israeli District Court for the Central District alleging breaches of
Israeli law by Taro in connection with the general meeting of Taro's
shareholders held on September 12, 2013 (the "General Meeting").
Specifically, BlueMountain and IsZo asked the court to revoke the following
resolutions passed at the General Meeting: (i) the resolution reelecting the
external directors of Taro (Issue 7 on the agenda of the General Meeting);
(ii) the resolutions approving compensation of officers of Taro (Issues 3, 4,
5 on the agenda of the General Meeting); and (iii) the resolution approving
Taro's compensation policy (Issue 1 on the agenda of the General Meeting).
Among other issues, BlueMountain and IsZo alleged that voting was conducted
using defective voting cards and voting instruction forms, in which the
shareholders participating in the vote were not required to disclose the
existence (or non-existence) of a personal interest in the adoption of the
resolutions, as required by Israeli law. BlueMountain alerted Taro of the
fundamental flaws prior to and during the General Meeting.
On December 25, 2013, the court set a trial date of March 16, 2014. On
January 23, 2014, Taro issued a press release announcing a new Extraordinary
General Meeting of Shareholders to be held on March 27, 2014. According to
Taro, this meeting is necessary because "[f]ollowing the 2013 [General
Meeting], the Company has learned that voting forms used by certain
shareholders, which were not prepared by the Company, may not have informed
the shareholders of their obligation to inform the Company if they are
controlling shareholders or if they have a personal interest in these
resolutions, and is therefore calling the Meeting for the purpose of having
these resolutions ratified." At the Extraordinary General Meeting, Taro
intends to ask shareholders to again approve the same resolutions that
BlueMountain and IsZo are challenging in our lawsuit.
Following Taro's announcement, BlueMountain and IsZo filed a motion with the
court explaining our belief that calling the Extraordinary General Meeting is
an admission by Taro that the voting process was materially flawed.
On January 27, 2014, Taro filed a motion seeking the dismissal of our lawsuit,
claiming that in calling the Extraordinary General Meeting, Taro has agreed to
all of the remedies that we sought in our lawsuit.
In light of these events, BlueMountain and IsZo wish to communicate the
following to our fellow minority shareholders:
1.We are gratified that, after months of denial, Taro has both recognized
the existence of serious deficiencies in the voting process and concluded
that most of the resolutions adopted at the General Meeting must be set
aside. However, we are deeply concerned that the same flawed process may
be repeated at the Extraordinary General Meeting. On January 29, 2013,
BlueMountain sent a letter to Taro demanding that Taro disclose the exact
manner in which it is planning to conduct the Extraordinary General
Meeting. In the absence of a commitment by Taro to rectify all of the
other material flaws in the voting process, we fear that the decision to
call an Extraordinary General Meeting is designed to avoid a full
adjudication of the claims made by BlueMountain and IsZo. Moreover, we
note that under Israeli law, until such time as two external directors are
validly elected, Taro's board is not legally compliant.
2.We are concerned that Taro's external directors, Ilana Avidov Mor and Dan
Biran, have not taken the necessary steps to ensure that Taro acted in a
lawful manner and protected the rights of minority shareholders. As
external directors, this is one of their explicit duties under Israel
law. They cannot claim they were unaware of the deficiencies in the
voting process, as BlueMountain notified Taro repeatedly in public and
private communications. We fear that this disregard for the rights of
minority shareholders is unlikely to change in the immediate future.
Therefore, we strongly believe that Taro's external directors should
immediately resign from office as their actions are incompatible with
their duty to protect the interests of all shareholders. Their three year
term as external directors expired in December 2013 and they have not been
legitimately re-elected. In light of their repeated failure to perform
their duties, we believe they have personal accountability under Israeli
law, and we are evaluating our rights to pursue this remedy.
3.In our opinion, Taro's statement in its press release of January 23, 2014
that "[f]ollowing the 2013 AGM, the Company has learned that voting forms
used by certain shareholders, which were not prepared by the Company, may
not have informed the shareholders of their obligation to inform the
Company if they are controlling shareholders or if they have a personal
interest in these resolutions…" is incorrect and misleading. As stated
above, BlueMountain repeatedly informed Taro of flaws in its voting
instruction forms prior to the General Meeting. Thus, it is clear that:
(1) Taro should have been aware of these flaws; (2) the voting instruction
forms did not include the required shareholder declaration regarding the
shareholder's personal interest in the resolutions (this is in contrast to
Taro's claim in its press release that the voter information cards "may
not have informed the shareholders of" their obligation to make this
declaration); and (3) neither the voting instruction forms nor Taro's
Proxy Statement explained to shareholders that any indirect interest with
respect to such resolutions, such as the existence of business ties or any
other relationship of a shareholder or any person voting on his or her
behalf with Taro or its controlling shareholder, are deemed to create a
4.Following demands by BlueMountain and IsZo, Taro provided BlueMountain and
IsZo with a copy of the minutes of the General Meeting, which are part of
this press release as Exhibit A (the "Minutes") and can be accessed at
http://www.bluemountaincapital.com/taro/ExhibitA.pdf . BlueMountain
believes that the Minutes are deficient because they include no record
whatsoever of any of the issues and concerns raised by BlueMountain's
representative at the General Meeting, which should have been explicitly
reflected in the Minutes. Moreover, we fail to understand why it took Taro
over 3 months after the meeting to produce such minutes to BlueMountain
and IsZo, without any reasonable explanation for the undue delay. In
Israel, the detailed results of the general meeting are typically
available no later than the next business day following the meeting, and
the minutes of the meeting are available shortly thereafter. The Minutes
of the General Meeting contained the following summary of the voting
results for non-controlling shares:
Non Controlling Shares Voting: Margin
Resolution For Against Abstained For -
1 Taro Compensation 6,103,374 3,710,444 67,888 2,392,930
Remuneration for Mr.
7 Shanghvi 5,842,780 3,972,289 65,984 1,870,491
Remuneration for Mr.
8 Valia 5,824,238 3,988,431 69,037 1,835,807
Remuneration for Mr.
9 Subramanian 5,939,721 3,871,682 70,303 2,068,039
Re-election of Ms.
11 Mor as External 5,700,687 4,169,026 11,993 1,531,661
Re-election of Mr. Dan
12 External Director 5,706,259 4,163,534 11,913 1,542,725
Election of Mr. Ben-Ami
13 Rosenfeld as External 4,423,121 5,364,502 52,771 (941,381)
Election of Ms. Adi
14 External Director 4,425,295 5,362,797 52,302 (937,502)
Note: Non-controlling shares voting against for Resolutions 13 and 14
assumed to be total shares voted against less controlling shares implied
in resolution 1 of 52,046,376; see Minutes for detail
5.In its January 23, 2014 press release, Taro noted, "the Company has not
received any evidence to indicate that any votes were improperly included
of controlling shareholders or shareholders who had a personal interest in
these resolutions." Given that Taro has acknowledged that the voting
instruction forms were not properly marked, we believe that Taro cannot
reliably know whether shareholders who had a personal interest voted
6.Our skepticism on this matter is further fueled by the election results.
Importantly, the margin of victory for the incumbent external directors
was very close at less than 1.6 million votes (see table above Items 11
and 12). We believe BlueMountain's nominees had nearly unanimous support
amongst Taro's largest minority shareholders known to us. That suggests a
high percentage of smaller shareholders would have had to have voted for
the re-election of the external directors. We believe that it is
exceedingly rare that high percentages of smaller shareholders vote, and
rarer that they vote in such uniform fashion.
7.In addition to the concerns expressed in Item 6, we note that that there
is an inconsistency in the voting results as reported for Resolution 8.
In every other item requiring the vote of the Controlling Shareholder Sun
Pharmaceutical Industries Ltd. ("Sun"), the votes of Sun totaled
52,046,376 by subtracting the votes of non-controlling shareholders voting
"for" from the total votes voting "for", which to the best of our
knowledge is the correct as-converted ownership of the Controlling
Shareholder at the time of the vote. However in Resolution 8, the
Controlling Shareholder apparently voted 53,046,376 shares. In light of
Taro's acknowledgement of irregularities in the voting process and the
fact that it had three months to prepare this relatively basic
information, we believe this also calls into question the integrity of the
voting results in the Minutes.
8.On December 23, 2013 Taro announced that it had successfully tendered for
approximately 1.96 million minority shares. As the voting table above
from the Minutes demonstrates, the margin of victory of the existing
external directors was less than 1.6 million shares. In addition, the
margin of loss of the BlueMountain candidates Mr. Ben-Ami Rosenfeld and
Ms. Adi Bershadsky was less than 1.0 million shares (see table above Items
13 and 14). With fewer minority shares outstanding after the tender, we
believe that the minority position is potentially even stronger than it
was at the September 2013 shareholder vote. Each minority vote is
incredibly valuable. Minority shareholders have been successful in
thwarting multiple attempts to shift substantial value to Taro's majority
shareholder in the past. We urge all minority shareholders to retain
their right to vote in the event that an Extraordinary General Meeting is
held in March.
We continue to believe there is very significant value to be created for all
shareholders of Taro, and remain focused on ensuring that this value creation
accrues to all shareholders. In the interim, we are committed to exercising
our rights as shareholders through all available channels.
BlueMountain Capital Management
IsZo Capital Management
Cautionary Statement Regarding Forward-Looking Statements
This release may include "forward-looking statements" that reflect current
views of future events. Statements that include the words "expect," "intend,"
"plan," "believe," "project," "anticipate," "will," "may," "would" and similar
statements of a future or forward-looking nature are often used to identify
forward-looking statements. Similarly, statements that describe BlueMountain's
objectives, plans or goals are forward-looking. BlueMountain's forward-looking
statements are based on its current intent, belief, expectations, estimates
and projections. These statements are not guarantees of future performance and
involve risks, uncertainties, assumptions and other factors that are difficult
to predict and that could cause actual results to differ materially.
Accordingly, you should not rely upon forward-looking statements as a
prediction of actual results and actual results may vary materially from what
is expressed in or indicated by the forward-looking statements. Except to the
extent required by applicable law, no person undertakes any obligation to
update publicly or revise any forward-looking statement, whether as a result
of new information, future developments or otherwise.
Doug Hesney / Sam Kerbel
Dukas Public Relations
firstname.lastname@example.org / email@example.com
SOURCE BlueMountain Capital Management, LLC
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